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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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CURRENT  LAW 


A  COMPLETE  ENCYCLOPAEDIA 
OF  NEW  LAW 


VOLUME   I. 


ABANDONMENT  TO  FINES 


GEORGE  FOSTER  LONGSDORF 

EDITOR  IN  CHIEF 


ST.  PAUL,  MlSl^?-  -  ■•— - 
KEEFE-DAVIDSON  COMPANY 
1904. 


Bfll^  flSSOGLI'^IO 


C93e3 


Copyrighted.  1903,  1903,  1903,  1903. 
1904,  1904,  1904. 

BY 

JOHN  B.  West  Company. 


lA 


WBBB  PDBLISHINQ  CO.  PEBSS,  ST.  PAUL,  MINN. 


TOPICAL    INDEX. 


[keferexces  are  to  pages.] 


see    Attachment, 
Bankruptcy,    311; 


A. 

ABANDONMENT,  see  Kasements,  967;  High- 
ways, etc.;  Dismissal,  etc.,  937;  Property; 
Marine  Insurance. 

ABATEMENT  AND  REVIVAL,,  1. 

ABBREVIATIONS,  see  Contracts.  627;  Plead- 
ings, Indictments,  etc.;  Names,  etc.,  and 
the  like. 

ABDUCTION,  6. 

ABETTING  CRIME,  see  Criminal  Law,  829. 

ABIDE  THE  EVENT,  see  Costs,  808;  Pay- 
ment into  Court;  Stay  and  Supersedeas; 
Stipulations;  Undertakings. 

ABODE,  see  Domicile,  954. 

ABORTION,  6. 

ABSCONDING  DEBTORS. 
239;  Civil  Arrest,  526; 
Limitations  of  Actions. 

ABSTRACTS   OF  TITLE,  7. 

ABUSE  OF  PROCESS,  see  Process. 

ABUTTING  OWNERS,  see  Highways  and 
Street;  Eminent  Domain,  1002;  Munici- 
pal Corporations. 

ACCEPTANCE.  Titles  treating  of  the  object 
of  an  acceptance  should  be  consulted. 
See  Contracts,  627;  Deeds,  909,  and  the 
like. 

ACCESSION  AND  CONFUSION  OF  PROP- 
ERTY, 7. 

ACCESSORIES,  see  Criminal  Law,  829. 

ACCIDENT — in  equity,  see  Mistake  and  Acci- 
dent— resulting  in  legal  injury,  see  Mas- 
ter and  Servant;  Negligence;  Carriers, 
421;  Damages,  833;  Insurance. 

ACCOMMODATION  PAPER,  see  Negotiable 
Instruments. 

ACCOMPLICES,  see  Criminal  Law.  829;  In- 
dictment and  Prosecution;  Evidence,  1136. 

ACCORD  AND   SATISFACTION,   8. 

ACCOUNTING,  ACTION  FOR,   13. 

ACCOUNTS  STATED  AND  OPEN  ACCOUNTS, 
15. 

ACCRETION,  see  Riparian  Owners. 

ACCUMULATIONS,    see   Trusts;    Perpetuities. 

ACKNOWLEDGMENTS,    17. 

ACTIONS,  20.  See  Causes  of  Action,  etc.,  496; 
Forms  of  Action;  Pleading  (joinder  of 
actions). 

ACT  OF  GOD,  see  Carriers,  421;  Contracts, 
626;   Insurance;    Negligence. 

ADDITIONAL  ALLOWANCES,  see  Costs,  808. 

ADEMPTION  OF  LEGACIES,  see  Wills. 

ADJOINING  OWNERS,  21.  See,  also.  Fences, 
1206. 

ADJOURNMENTS,  see  Courts.  824;  Continu- 
ance and  Postponement,   620. 


ADMINISTRATION,  see  Estates  of  Dece- 
dents,  1090;  Trusts. 

ADMISSIONS,    see    Indictment    and    Prosecu- 
tion; Evidence,  How;  Pleading;  Trial. 
ADMIRALTY,    22. 
ADOPTION   OP   CHILDREN,   26. 
ADULTERATION,    27. 
ADULTERY,    29. 

ADVANCEMENTS,  see  Estates  of  Decedents, 
1129;  WMlls;  Trusts. 

ADVERSE    POSSESSION,    30. 

ADVERTISING  CONTRACTS,  see  Contracts, 
626. 

ADVICE  OF  COUNSEL,  see  Attorneys,  261; 
Malicious  Prosecution,  and  other  torts 
involving  malice;  Witnesses  (as  to  Priv- 
ileged  Nature   of   Communications). 

AFFIDAVITS,   42. 

AFFIDAVITS  OF  MERITS  OF  CLAIM  OR 
DEFENSE,    43. 

AFFIRMATIONS,  see  Oaths;  Witnesses;  Jury. 

AGENCY,  43. 

.A.GISTMENT.  see  Animals.  82;  Liens. 

AGREED  CASE,  see  Submission  of  Contro- 
versy; Appeal  and  Review,  85;  Stipula- 
tions. 

AGRICULTURE,   66. 

AIDER  BY  VERDICT,  ETC..  see  Indictments 

and   Information;    Pleading. 
ALIBI,    see    Criminal    Law,    827;    Indictment 

and  Prosecution. 
ALIENS,  67. 
ALIMONY,    70. 

.ALTERATION   OF   INSTRUMENTS,    76. 
AMBASSADORS    AND    CONSULS,    79. 
AMBIGUITY,    see    those    parts    of    titles    Ilk© 

Contracts,     626;     Statutes;     Wilis,     which 

treat  of  interpretation. 

AMENDMENTS,  see  Indictments  and  Infor- 
mation; Pleading;  Equity,  1072,  and 
procedure  titles  generally. 

AMICUS    CURIAE,    79. 

AMOTION,  see  Associations  and  Societies, 
233;   Corporations,   710. 

AMOUNT  IN  CONTROVERSY,  see  Appeal  and 

Review,  85;  tlurisdiction;  Costs,  808. 
ANCIENT  DOCUMENTS,  see  Evidence,  1136. 
ANIMALS,   79. 
.ANNUITIES,    84. 

ANOTHER  SUIT  PENDING,  see  Abatement 
and  Revival.  1;  Stay  and  Supersedeas; 
Jurisdiction. 

ANSWERS,  see  Equity,  1077;  Pleading. 

ANOTHER    SUIT    PENDING,    se    Abatement 


and  Revival,  1. 


[vj 


»-V/r 


7S4914 


VI 


TOPICAL  INDEX. 


ANTENUPTIAL  CONTRACTS  AND  SET- 
TLEMENTS, see  Husband  and  TS'ife. 

ANTI-TRUST  LATVS,  see  Combinations  and 
Monopolies.  535.  536. 

APPEAL   AND    REVIEW^    85. 

APPEARANCE,    201. 

APPELLATE  COURTS  AND  JURISDICTION, 
see  Appeal  and  Review,  113;  Jurisdiction. 

APPLICATION  OF  PAYMENTS,  see  Payment 
and  Tender. 

APPOINTMENT,  see  Officers  and  Public  Em- 
ployes; Estates  of  Decedents,  1092; 
Trusts,  and  the  like;  Powers. 

APPORTIONMENT  LAWS,  see  Elections,  981; 
Officers;  States. 

APPRENTICES.  No  new  cases  or  discus- 
sions have  been  found  within  the  period 
covered  by  this  volume. 

ARBITRATION  AND  AWARD,  205. 

ARCHITECTS,  see  Building  and  Construc- 
tion Contracts.  381. 

ARGU3IEXT  OF  COUNSEL,   209. 

ARRAIGNMENT  AND  PLEAS,  see  Indict- 
ment  and   Prosecution. 

ARREST  AND  BINDING  OVER,   214. 

ARREST  OF  JUDGMENT,  see  New  Trial  and 
Arrest   of  Judgment. 

ARREST  ON  CIVIL  PROCESS,  see  Civil  Ar- 
rest,  526. 

ARSON,  217.     See.  also.  Fires. 

ASSAl'LT  AND   BATTERY,    218. 

ASSIGNMENTS,  222. 

ASSIGNMENTS  FOR  BENEFIT  OF  CRED- 
ITORS, 227. 

ASSIGNMENT  OF  ERRORS,  see  Appeal  and 
Review.   S5;   Indictment  and  Prosecution. 

ASSISTANCE,  WRIT  OF,  232. 

ASSOCIATIONS    AND    SOCIETIES,     233. 

ASSUMPSIT,   236. 

ASSUMPTION  OF  OBLIGATIONS,  see  Nova- 
tion; Guaranty;  Frauds,  Statute  of;  also 
Mortgages. 

ASSLTklPTION  OF  RISK,  see  Master  and  Serv- 
ant. 

ASYLUMS,  see  Charitable  and  Correctional 
Institutions,  507. 

ATTACHMENT,  239. 

ATTE:MPTS.  see  Criminal  Law.  828,  and 
sprcific  titles  like  Homicide.  Rape. 

ATTORNEYS    AND    COUNSELORS,    261. 

ATTORNEYS  FOR  THE  PUBLIC,  see  Attor- 
neys and  Counselors,   279. 

AUCTIONS  AND  AUCTIONEERS,   283. 

AUDITA   QUERELA,   see  Judgments. 

AUSTRALIAN   BALLOTS,   see   Elections,    981. 

AUTREFOIS  ACQUIT,  see  Criminal  Law,  827. 

B. 

BAGGAGE,    see   Carriers,    493;    Inns,    Restau- 
rants,  etc. 
BAIL  IN   CIVIL   ACTIONS,   283. 
BAIL  IN   CRIMINAL  PROCEEDINGS,   284. 
BAILMENT,  2SS. 
BANKING   AND   FINANCE,   289. 
BANKRUPTCY,  311. 

BASTARDS,    S39. 

BENEFICIARIES,  see  Insurance;  Trusts; 
Wills;  Fraternal,  etc.,  Associations. 


BENEFICIAL  ASSOCIATIONS,  see  Fraternal 
and  Mutual  Benefit  Associations;  also  As- 
sociations,  233;   Corporations,   710. 

BETTERMENTS,  see  Ejectment,  969. 

BETTING  AND  GAMING,  340. 

BIGAMY,    342. 

BILL  OF  DISC0"VT:RY,  see  Discovery  and  In- 
spection,  930. 

BILLS  IN  EQUITY,  see  Equity,  1048;  and  to 
the  special  relief  prayed  see  such  titles 
as   Judgment;   Quieting  Title. 

BILLS  OF  LADING,  see  Carriers,  426;  Sales: 
Negotiable  Instruments. 

BILLS  AND  NOTES,  see  Negotiable  Instru- 
ments; Banking  and  Finance,  2S9. 

BILLS  OF  SALE,  see  Sales;  Chattel  Mort- 
gages,  513;  Fraudulent  Conveyances. 

BLACKMAIL,    343. 

BLASPHEMY,    see   Profanity   and   Obscenity. 

BLENDED  PROPERTIES,  see  Accession  and 
Confusion.  7;  Conversion  as  Tort,  705: 
Conversion  in  Equity,  707;  Trusts;  Wills. 

BOARD  OF  HEALTH,  see  Health. 

BOARDS,  see  Officers  and  Public  Employes; 
also  see  various  titles  like  Counties,  820; 
Municipal  Corporations. 

BODY  EXECUTION,  see  Civil  Arrest,  528. 

BONA  FIDES,  see  Negotiable  Instruments; 
Notice  and  Record  of  Title. 

BO^t'DS,  343.  See,  also.  Municipal  Bonds; 
Counties,  820;  Municipal  Corporations; 
States. 

BOTTOMRY  AND  RESPONDENTIA,  see 
Shipping  and  Water  Traffic. 

BOUGHT  AND  SOLD  NOTES,  see  Frauds. 
Statute  of;  Brokers,  360;  Factors,  1200. 

BOUNDARIES,  346. 

BOUNTIES,   353 

BRANDS  AND  MARKS,  see  Animals,  84; 
Trade-Marks  and  Trade-Names. 

BREACH  OF  MARRIAGE  PROMISE,  353. 

BREACH  OF  THE  PEACE,  see  Disorderly 
Conduct,  945;  Surety  of  the  Peace. 

BRIBERY,    354. 

BRIDGES,  355. 

BROKERS,   360. 

BUILDIXG  AND  .CONSTRUCTION  CON- 
TRACTS,  374. 

BUILDIXG   AND   LOAX   ASSOCIATIONS,    387. 

BUILDINGS,   404. 

BURDEN  OF  PROOF,  see  Evidence,  1138. 

BURGLARY,  411. 

BURNT  RECORDS,  see  Restoring  Instru- 
ments and  Records. 

BY-LA "WS.  see  Associations  and  Societies. 
234;   Corporations,   764. 

c. 

CANALS,  412. 

CALENDARS,    see  Dockets,   etc..   953. 

CANCELLATION   OF  IXSTRUMEXTS,  413. 

CANVASS  OF  VOTES,  see  Elections,   988. 

CAPITAL,  see  Corporations.  744;  Partner- 
ship:  Banking  and  Finance,   289. 

CARLISLE  TABLES,  see  Damages.  833; 
Death  by  Wrongful  Act,  865;  Evidence, 
1136. 

CARRIERS,    421. 

CARRYING  WEAPONS,  see  Constitutional 
Law,  611;  Weapons. 


TOPICAL  INDEX. 


Vll 


CAR  TRUSTS,  see  Railroads. 

CASE,  ACTIOX   OX,   495. 

CASE,  AGREED,  see  Appeal  and  Review,   85; 

Submission  of  Controversy. 
CASE  CERTIFIED,   see   Appeal   and   Review, 

89. 
CASE    SETTLED,    see    Appeal    and    Review, 

134. 
CASH,   see  Payment  and  Tender. 
CATCHING  BARGAIN,  see  Assignments,  222; 

Estates  of  Decedents,  1090;  Life  Estates, 

Remainders   and    Reversions;    Fraud   and 

Undue  Influence. 
CAUSES    OP  ACTION    AND    DEFENSES,    496. 
CEMETERIES,  497. 
CENSUS    AND    STATISTICS,    499. 
CERTIFICATE    OF   DOUBT,    see   Appeal   and 

Review,  85. 
CERTIFICATES   OF   DEPOSIT,    see   Banking 

and     Finance,     302;     Negotiable     Instru- 
ments. 
CERTIORARI,  499. 
CHALLENGES,  see  Jury. 
CHAMBERS    AND    VACATION,    see    Courts, 

824;   Judges. 

CHAMPERTY    AND    MAINTENANCE,    506. 

CHANGE  OF  VENUE,  see  Venue,  etc. 

CHARACTER  EVIDENCE,  see  Evidence, 
1136;  "Witnesses. 

CHARITAHLE  AND  CORRECTIONAL  IN- 
STITUTIONS,  507. 

CHARITABLE  GIFTS,   510. 

CHARTER  PARTY,  see  Shipping  and  Water 
Traffic. 

CHATTEL,  MORTGAGES,  513. 

CHATTELS,  see  titles  treating  of  various 
rights  in  personalty  other  than  choses  In 
action.  Distinction  between  chattels  and 
realty,  see  Property. 

CHEATS,  see  False  Pretenses,  1205;  Fraud, 
and  the  like. 

CHECKS,  see  Banking,  etc.,  302;  Negotiable 
Instruments. 

CHILDREN,  see  Parent  and  Child;  Infants; 
Descent   and  Distribution,    922;   Wills. 

CHINESE,  see  Aliens.  68,  69. 

CITATIONS,  see  Process:  Estates  of  Dece- 
dents, 1090;  Appeal,  85. 

CITIZENS,    526. 

CIVIL  ARREST,  526. 

CIVIL  DAMAGE  ACTS,  see  Intoxicating  Li- 
quors. 

CIVIL  DEATH,  see  Convicts,  708. 

CIVIL  RIGHTS,   530. 

CIVIL  SERVICE,  see  Officers  and  Public  Em- 
ployes. 

CLEARING  HOUSES,  see  Banking  and  Fi- 
nance, 289. 

CLERKS    OF    COURT,    531. 

CLOUD  ON  TITLE,  see  Covenants  for  Title, 
825;  Quieting  Title;  Vendor  and  Purchas- 
er. 

CLUBS,  see  Associations  and  Societies,  233. 
CODICILS,   see  Wills. 

COGNOVIT,  see  Confession  of  Judgment,  558. 
COLLEGES  AND  ACADEMIES,  534. 
COLLISION,   see  Shipping  and  Water  Traffic. 


COLOR  OF  TITLE,  see  Adverse  Possession, 
36. 

COMBINATIONS   AND   MONOPOLIES.    535. 

COMMERCE,  538. 

COMMITMENTS,     see     Arrest     and     Binding 

Over.  214;  Contempt,  618;  Indictment  and 

Prosecution;  Fines,  1208. 

COMMON   AND   PUBLIC    SCHOOLS,   544. 
COMMON   LA^V,  543. 

COMMUNITY  PROPERTY,  see  Husband  and 
Wife. 

COMPARATIVE  NEGLIGENCE,  see  Negli- 
gence. 

COMPLAINT  FOR  ARREST,  see  Arre.5t  and 
Binding  Over,   214. 

COMPLAINTS   IN   PLEADING,    see    Pleading. 

COMPOSITION  WITH   CREDITORS,  558. 

COMPOUNDING  OFFENSES.     No  cases  have 

been   found  during  the  period  covered. 
CONCEALED    WEAPONS,    see    Weapons. 
CONCEALMENT     OF     BIRTH     OR     DE  \TH, 

558. 

CONDITIONAL  SALES,  see  Chattel  Mortga- 
ges. 513;  Fraudulent  Conveyances; 
Sales. 

CONFESSION  AND  AVOIDANCE,  see  Plead- 
ing. 

CONFESSION  OF  JUDGMENT,   558. 

CONFESSIONS,  see  Indictment  and  Prosecu- 
tion. 

CONFISCATION,  see  Constitutional  Law 
(Due  Process),  591;  Fish  and  Game  Law. 

CONFLICT   OF  LAAVS,   559. 

CONFUSION  OF  GOODS,  see  Accession  and 
Confusion,  7. 

CONNECTING  CARRIERS,  see  Carriers,  424; 

Railroads. 
CONSIDERATION,  see  Contracts,  630. 
CONSOLIDATION,   (of  actions)   see  Trial;   (of 

corporations)   see  Corporations,   739. 
CONSPIRACY,  566. 

CONSTABLES,  see  Sheriffs  and  Constables. 
CONSTITUTIONAL  LAW,   569. 
CONSULS,   see  Ambassadors  and  Consuls,   79. 
CONTEMPT,    611. 

CONTINUANCE         AND         POSTPONEMENT, 

620. 

CONTRACT  LABOR  LAW,  see  Aliens.   67. 
CONTRACTS,   626. 

CONTRACTS  OP  AFFREIGHTMENT,  see 
Carriers,  421;  Shipping  and  Water  Traf- 
fic. 

CONTRACTS  OF  HIRE,  see  Bailment.   288. 

CONTRIBUTION,  704. 

CONTRIBUTORY  NEGLIGENCE,  see  Negli- 
gence. 

CONVERSION  AS  TORT,  705. 

CONVERSION   IN   EQ,UITY,   707. 

CONVICTS,   708. 

COPYRIGHTS,    708. 

CORAM  NOBIS  AND  CORAM  VOBIS.  see  Ap- 
peal and  Review.  85.  The  various  statu- 
tory substitutes  for  the  remedy  by  writ 
Coram  Nobis  are  usually  considered  as 
part  of  the  law  of  Judgments.  See 
Judgments. 

CORONERS,   709. 


Vlll 


TOPICAL  INDEX. 


CORPORATIONS,  710. 

CORPSES  AXD  BURIAL,,  807. 

CORPUS  DELICTI,  see  Criminal  Law,  827; 
Indictment   and  Prosecution. 

CORROBORATIVE  EA'IDEXCE.  see  Evi- 
dence. 1136;  Indictment  and  Prosecution; 
Witnesses;  Trial  (exclusion  of  cumula- 
tive evidence);  Divorce,  945;  Seduction; 
Rape. 

COSTS,  808. 

COUNTERFEITIXG,    816. 

COUXTIES,   816. 

COUXTS   AND  PARAGRAPHS,    see   Pleading. 

COLTNTY  COMinSSIOXERS  OR  SUPERVIS- 
ORS, see  Counties,  816;  Highways  and 
Streets;  Towns;  Townships. 

COUNTY  SEAT,  see  Counties,  816. 

COUPLING  CARS,  see  Master  and  Servant 
(injuries  to  servants);  Railroads  (statu- 
tory regulations). 

COUPONS,  see  Bonds,  343,  and  titles  relating 
to  public  or  private  corporations  which 
customarily  issue  bonds  (interest  cou- 
pons); Negotiable  Instruments;  Carriers 
(coupon  tickets),  421. 

COURT  COilMISSIONERS,  see  Courts.  824; 
Judges. 

COURTS,  824. 

COA'EXAXT,  ACTION  OF.  No  cases  have 
come  to  the  notice  of  the  editor  during 
the  time  covered. 

COVENANTS,  see  titles  relating  to  instru- 
ments wherein  covenants  are  embodied, 
e.  g.  Contracts.  626;  Deeds  of  Convey- 
ance, 908;  Landlord  and  Tenant  (leases); 
Vendor  and  Purchaser  (land  contracts); 
see  Buildings  (covenants  restrictive),  404. 

COAT^XAXTS   FOR   TITLE,    825. 

COVERTURE,  see  Husband  and  Wife. 

CREDIT  INSURANCE,  see  Indemnity;  Insur- 
ance. 

CREDITORS'   SUIT,  826. 

CRIMINAL  CONVERSATION,  see  Husband 
and  Wife  (civil  liability);  Adultery 
(crime),    29;   Divorce    (ground),    945. 

CRIMINAL,  LAW%  827. 

CROPS,  see  Agriculture,  67;  Emblements  and 
Natural  Products,  1000;  Landlord  and 
Tenant  (renting  for  crops) ;  Chattel  Mort- 
gages  (mortgages  on  crops),  513. 

CROSS  BILLS  AND  COMPLAINTS,  see  Equi- 
ty, 1048;  Pleading. 

CROSSINGS,  see  Highways  and  Streets;  Rail- 
roads. 

CRUEL  AND  UNUSUAL  PUNISHMENTS,  see 
Constitutional  Law,  599;  Criminal  Law. 
829. 

CRUELTY,  see  Animals.  84;  Divorce,  496;  In- 
fants:  Parent  and  Child. 

CUI^rULATIVE  EVIDENCE,  see  Trial  (recep- 
tion and  exclusion  of  evidence) ;  New 
Trial  (newly  discovered  cumulative  evi- 
dence). 

CUMULATI^'E  PUNISHMENTS,  see  Criminal 
Law,  829. 

CUMULATIVE  VOTES,  see  Corporations,  766. 

CURATIVE  ACTS,  see  Statutes. 
CURTESY,   830. 

CUSTOMS  AND  USAGES,  830. 
CUSTOMS    LAW%   831. 


D. 

DA3LA.GES,    833. 

DAMNUM  ABSQUE  INJURIA,  see  Causes  of 
Action,    496;    Torts;    compare   Negligence. 

DAMS,  see  Navigable  Waters;  Riparian  Own- 
ers; Waters  and  Water  Supply. 

DATE,  see  titles  treating  of  the  various  in- 
struments as  to  the  necessity  and  efCect 
of  a  date;  see  Time  as  to  computation. 

DAYS,    see   Holidays;    Sundays;    Time. 

DEAD  BODIES,  see  Corpses  and  Burial,  807. 

DEAF  MUTES.  No  cases  have  been  found 
during  the  period  covered.  Compare 
Fraud  and  Undue  Influence;  Incompeten- 
cy;  Negligence. 

DEATH   AND   SURVIA'ORSHIP,    865. 

DEATH  BY  WRONGFUL  ACT,   S65. 

DEBENTURES,  see  Corporations,  710;  Rail- 
roads. 

DEBT,  see  titles  descriptive  of  the  various 
instruments  and  agreements  predicated 
on  debt  or  evidencing  debt  (Accounts 
Stated,  etc.,  15;  Contracts,  626;  Bonds, 
343;  Negotiable  Instruments;  Chattel 
Mortgages.  513;  Mortgages;  Implied  Con- 
tracts, and  the  like),  also  titles  relating 
to  proceedings  for  liquidation  of  affairs 
of  persons  or  corporations  (Bankruptcy, 
311;  Assignments  for  Benefit  of  Creditors. 
231,  232;  Corporations,  799;  Estates  of 
Decedents,  1101-1110;  Partnership;  and 
the  like),  titles  relating  to  transfer  or 
discharge  of  debt  (Assignments,  222; 
Accord  and  Satisfaction,  8;  Novation  Re- 
leases; and  titles  relating  to  specific 
kinds  of  debt  or  securitj').  also  titles 
descriptive  of  remedies  for  collection  of 
debts  (Assumpsit.  236;  Creditors'  Suit, 
826;  Forms  of  Action;  and  code  remedies 
as  applied  in  substantive  titles  already 
enumerated)  also  titles  relating  to  cor- 
porations or  associated  persons,  or  to 
classes  of  persons  not  sui  juris  (Asso- 
ciations, etc.,  233;  Partnership;  Corpora- 
tions, 799;  Infants;  Husband  and  Wife; 
Insane  Persons;  Guardianship;  Trusts, 
and  the  like). 

DEBT,  ACTION  OF.  No  cases  have  been 
found  during  the  period  covered. 

DEBTS  OF  DECEDENTS,  see  Estates  of  De- 
cedents, 1090. 

DECEIT,  (Special  article,  page  873  including 
both  old  and  current  cases). 

DECLARATIONS,  see  Evidence,  1136;  Plead- 
ing. 

DECOY  LETTERS,  see  Postal  Law. 

DEDICATION,    903. 

DEEDS   OF  CONVEYANCE,  908. 

DEFAULTS,  913. 

DEFINITE  PLEADING,  see  Pleading:  Equity, 
1068. 

DEL  CREDERE  AGENCY,  see  Agency.  43: 
Factors,  1200. 

DE^LA.ND,  see  titles  treating  of  particular 
rights  or  remedies  of  which  demand  may 
be  an  element.  Compare  Payment  and 
Tender;  Payment  into  Court. 

DEMURRAGE,  see  Carriers.  421;  Shipping 
and  TVater  Traffic. 

DEMURRERS,  see  Pleading;  Equity,  1075. 

DEMURRER  TO  EVIDENCE,  see  Directing 
Verdict,  etc..  925. 


TOPICAL  INDEX. 


IX 


DEPARTURE,  see  Pleading. 

DEPOSITIONS,    917. 

DEPOSITS,  see  Warehousing  and  Deposits; 
Banliing-,  etc.,  302;  Payment  into  Court. 

DEPUTY,  see  Officers  and  Public  Employes, 
also  titles  relating  to  particular  offices 
as   Sheriffs,    etc. 

DESCENT  AND  DISTRIBUTION,  922. 

DETECTIVES,  see  Municipal  Corporations 
(police  organization);  Officers  and  Public 
Employes;  Licenses  (private  detectives); 
and  as  to  tlieir  credibility  as  witnesses, 
see  Witnesses;  Indictment  and  Prosecu- 
tion; Evidence,   1136;  Divorce,  945. 

DETERMINATION  OF  CONFLICTING 

CLAIMS  TO  REALTY,  see  Quieting  Ti- 
tle. 

DETINUE,  924. 

DEVIATION,  see  Carriers,  421;  Marine  Insur- 
ance;   Shipping  and  Water  Traffic. 

DILATORY  PLEAS,  see  Abatement  and  Re- 
vival,  1;   Pleading. 

DIRECTING  VERDICT  AND  DEMURRER 
TO  EVIDENCE,   925. 

DISCLAIMERS,  see  Causes  of  Action  and  De- 
fenses, 496;  Costs,  808;  Pleading. 

DISCONTINUANCE,  see  Dismissal  and  Non- 
suit, 937. 

DISCOVERY  AND  INSPECTION,   930. 

DISCRETION,  see  articles  treating  of  proced- 
ure or  relief  resting  in  discretion.  Re- 
view or  control  of  discretion,  see  Appeal 
and  Review,  170;  Mandamus;  Prohibition; 
Certiorari,  499. 

DISFRANCHISEMENT,   see    Elections,    981. 

DISMISSAL  AND   NONSUIT,  937. 

DISORDERLY   CONDUCT,    945. 

DISORDERLY   HOUSES,   945. 

DISSOLUTION,  see  Corporations,  735;  Part- 
nership. 

DISTRESS,  see  Landlord  and  Tenant. 

DISTRICT  ATTORNEYS,  see  Attorneys  and 
Counselors,   279. 

DISTRICT  OF  COLUMBIA,  see  Territories 
and  Federal   Possessions. 

DISTURBANCE  OF  PUBLIC  ASSEMBLAGE, 
945. 

DIVIDENDS,  see  Corporations,  710;  Bank- 
ruptcy, 311;  Assignments,  etc.,  222;  In- 
solvency. 

DIVISION  OF  OPINION,  see  Appeal  and  Re- 
view, 85;  Judgment;  Stare  Decisis. 

DIVORCE,  945. 

DOCKETS.  CALENDARS,  AND  TRIAL  LISTS, 

953. 

DOCUMENTS  IN  EVIDENCE,  see  Evidence, 
1153;  Indictment  and  Prosecution. 

DOMICILE,  954. 

DOAVER,    956. 

DRAINS,  see  Sewers  and  Drains;  Waters  and 
Water  Supply;  Public  Works,  etc. 

DRUGS;  DRUGGISTS,  see  Medicine  and 
Surgery;    Poisons. 

DRUNKENNESS,  see  Intoxicating  Liquors; 
Habitual  Drunkards;  Incompetency. 

DUELING.  No  cases  have  been  found  dur- 
ing the  period  covered. 

DUE  PROCESS,  see  Constitutional  Law,  591. 

DUPLICITY,  see  Pleading. 


DURESS,   962. 

DYING  DECLARATIONS,  see  Homicide. 


EASEMENTS,   962. 

ECCLESIASTICAL  LAW,  see  Religious  So- 
cieties. 

EIGHT  HOUR  LAWS,  see  Master  and  Serv- 
ant; Constitutional  Law,  569;  Public 
Works;  Officers  and  Public  Employes. 

EJECTMENT,   969. 

ELECTION     OF    REMEDIES    AND     RIGHTS, 

992. 

ELECTIONS,    981. 
ELECTRICITY,  996. 
EMBEZZLEMENT,   998. 

EMBLEMENTS   AND   NATURAL  PRODUCTS, 

1000. 

E3IBRACERY.  No  cases  have  been  found 
during  the  period  covered. 

EMINENT  DOMAIN,  1002. 

ENTRY,  WRIT  OF,  see  Ejectment,   969. 

EQUITABLE  ASSIGNMENTS,  see  Assign- 
ments, 224. 

EQUITABLE  ATTACHMENT,  see  Attach- 
ment, 248. 

EQUITABLE  DEFENSES,  see  Equity,  1048. 

EQUITY,  1048. 

ERROR   CORAM  NOBIS,   see  Judgments. 

ERROR,  WRIT  OF,  see  Appeal  and  Review, 
85. 

ESCAPE,  1089. 

ESCHEAT,  1089. 

ESCROWS,   1089. 

ESTATES  OF  DECEDENTS,  1090. 

ESTATES  TAIL,  see  Real  Property. 

ESTOPPEL,  1130. 

EVIDENCE,  1136. 

EXAMINATION  BEFORE  TRIAL,  see  Dis- 
covery and   Inspection,    930. 

EXAMINATION   OF  WITNESSES,  1165. 

EXCEPTIONS  AND  OBJECTIONS,  see  Sav- 
ing Questions  for  Review;  Equity,  1078; 
1079;  Masters  in  Chancery;  Reference; 
Trial. 

EXCEPTIONS,  BILL  OF,  see  Appeal  and  Re- 
view, 129. 

EXECUTORS  AND  ADMINISTRATORS,  see 
Estates  of  Decedents,  1090. 

EXCHANGE  OF  PROPERTY,  1175. 

EXCHANGES     AND     BOARDS     OF     TRADE, 

1176. 
EXECUTIONS,   1178.      See,   also.   Civil  Arrest, 

526. 
EXEMPLARY  DAMAGES,   see  Damages,   835. 
EXEMPTIONS,  1192.     See,  also.  Homesteads. 
EXHIBITIONS  AND   SHOWS,   1196. 
EXHIBITS,      see      Pleading;      Equity,      1069; 

Trial     (reception     of    evidence) ;     Appeal 

and  Review   (inclusion  in   record),   127. 
EXPERIMENTS,  see  Evidence,  1136. 
EXPERT  EVIDENCE,  see  Evidence,  1157. 
EXPLOSIVES   AND   COMBUSTIBLES,   1197. 
EX  POST   FACTO   LAWS,   see    Constitutional 

Law,  569;  Criminal  Law,  827. 
EXPRESS    COMPANIES,    see     Carriers,    421; 

Railroads;    Corporations,    710. 


TOPICAL  INDEX. 


EXTORTION,  1198.  See.  also,  Blackmail, 
343;   Threats. 

EXTRADITION,  1199. 

F. 

FACTORS,  1200. 

FACTORS'  ACTS,  see  Factors.  1200;  Pledge; 
Sales. 

FALSE   IMPRISONMENT,   1201. 

FALSE  PERSONATION.  No  cases  have  been 
found  during  the  period  covered. 

FALSE   PRETENSES    AND    CHEATS,   1204. 

FALSE  REPRESENTATIONS,  see  Deceit. 
888;  Fraud  and  Undue  Influence;  Estop- 
pel, 1128;  Sales  (warranties);  Insurance 
(warranties) ;   and  all  contract  titles. 

FALSIFYING  RECORDS,  see  Records. 


FAMILY  SETTLEMENTS,  see  Estates  of  De- 
cedents, 1090. 

FELLOW  SERVANTS,  see  Master  and  Serv- 
ant. 

FENCES,  1206.  See,  also.  Adjoining  Owners, 
22. 

FERRIES,  1207. 

FIDELITY  INSURANCE,  see  Insurance. 

FILINGS,  see  Pleadings;  Notice  and  Record 
of  Title;  Records,  and  titles  treating  of 
matters  in  respect  of  which  papers  are 
or  may  be  filed. 

FINAL  JUDGMENTS  AND  ORDERS,  see  Ap- 
peal and  Review,  85. 

FINDING  LOST  GOODS,   see   Property. 

FINDINGS,  see  Verdicts  and  Findings. 

FINES,  1208. 


CURRENT  LAW. 

(Oopyrlgiited  1903,  by  John  B.  West  Company,  i 


VOIiUUK  I. 


AUGUST,  1903. 


Number  i. 


ABATEMENT  AND  BEVIVAL.1 

It  is  not  attempted  here  to  treat  of  criminal  prosecutions,'  nor  of  bills  of  re- 
viror'  or  revival  of  judgments*  or  statute-barred  causes  of  action."^  Various  writs 
are  abatable  for  defects,  which  matters  are  not  germane  to  this  title.' 

§  1.  Causes  for  abatement. — The  pendency  of  another  action''  having  the 
same  object^  and  the  same  parties"  and  prior  in  time^"  is  cause  for  abatement. 
It  makes  no  difference  that  the  prior  one  may  prove  ineffectual  if  it  be  legally 
capable  of  affording  a  remedy  ;^^  nor  will  the  jurisdiction  of  the  former  court 
be  determined  on  a  plea.^^ 

If  discontinued  or  otherwise  terminated,  the  suit  or  action  is  no  longer  pend- 
ing.** It  is  still  pending  though  appealed,**  though  it  is  not  so  regarded  where, 
for  instance,  only  one  item  of  a  judicial  accounting  is  appealed,*''  nor  is  it  suffi- 
cient to  merely  allege  that  it  has  been  appealed  from  and  is  incorrect.*'     What 


1.  Abatement  of  legacies,  see  "Wills;  of 
nuisance,  see  Nuisance;  of  taxes,  see  Taxes. 

2.  Criminal   Law;    Criminal   Procedure. 

3.  Equity. 

4.  Judgments. 

5.  Limitation  of  Actions. 

6.  Attachment,  and  like  titles. 

7.  Kansas  City  S.  R.  Co.  v.  Railroad  Com- 
mission, 106  La.  583;  two  mandamus  pro- 
ceedings— U.  S.  V.  N.  &  W.  R.  Co..  114  Fed. 
682;  foreign  garnishment  not  cause  to  abate 
but  reason  for  stay — Margarum  v.  Moon  (N. 
J.  Ch.)  53  Atl.  179.  Pendency  of  a  chancery 
proceeding  to  set  aside  a  will  does  not  abate 
a  proceeding  before  a  probate  court  when 
the  two  are  concurrent — "Wright  v.  Simpson, 
200  111.   56. 

8.  Berliner  Gramaphone  Co.  v.  Seaman, 
111  Fed.  679;  action  for  price  and  replevin  for 
goods — Cobb  V.  Cullen  Bros.  &  Lewis  Steel 
Co.,  68  App.  Div.  (N.  T.)  179;  partition  of 
land  and  action  respecting  personalty  only 
— Robinson  v.  RIpprecht,  191  111.  424;  eject- 
ment and  Injunction  against  excluding  from 
possession — Shaughnessy  v.  St.  Andrew's 
Church  (Neb.)  89  N.  "W.  263;  mandamus  to 
furnish  cars  for  a  shipment  Identical  with 
mandamus  to  furnish  a  certain  number  of 
cars — U.  S.  v.  N.  &  W.  R.  Co.,  114  Fed.  682; 
action  on  note  pending  one  to  quiet  title  ac- 
quired on  sale  to  pay  the  debt — Davidson  v. 
Jefferson  (Tex.  Civ.  App.)  68  S.  "W.  822;  ac- 
tion for  money  and  bonds  In  state  court  de- 
feated by  prior  suit  by  a  defendant  for  same 
In  federal  court  and  restraining  delivery  to 
any  other  person — State  v.  Tallman  ("Wash.) 
69  Pac.  1115;  allegations  of  the  pendency  of  a 
cross  bin  which  did  not  seek  foreclosure 
of  a  note  but  merely  brought  In  trustees  of 


a  deed  of  trust  to  secure  It,  held  not  to  state 
abatable  matter  since  the  cross  bill  did  not 
ask  for  a  recovery  of  the  debt — "Walker  v. 
"Washington  Title  Ins.  Co.,  19  App.  D.  C.  575. 

9.  Dodge  V.  Cornelius,  168  N.  Y.  242.  All 
must  be  identical — Level  Land  Co.  v.  Sivyer, 
112  "Wis.  442.  They  are  not  identical  where 
a  person  was  party  as  executor  In  one  action 
and  as  heir  in  the  other — Foster  v.  Foster, 
24    Ky.    Law   R.    1396. 

10.  Dodge  V.  Cornelius,  168  N.   Y.   242. 

11.  Orman  v.  Lane,  130  Ala.  305;  limited 
jurisdiction  of  court  in  which  prior  suit 
brought — Ralll  v.  Pearsall,  69  App.  Div.  (N. 
Y.)  254;  unlawful  detainer  and  prior  injunc- 
tion against  landlord's  exercise  of  right  to 
terminate  lease — Carmack  v.  Drum,  27  "Wash. 
382,    67   Pac.    808. 

12.  "Wilson  v.  Atlanta,  etc.,  R.  Co.,  115  Ga. 
171. 

13.  Discontinuance — Succession  of  "Wie- 
mann,  106  La.  307;  judgment  on  demurrer — 
Burnett  v.  Southern  R.  Co.,  62  S.  C.  281; 
abatement  by  death — Overlook  v.  Shinn 
("Wash.)  68  Pac.  436;  dismissal  without  prej- 
udice— Chesapeake  &  O.  R.  Co.  v.  Riddle's 
Adm'x,  24  Ky.  Law  R.  1687;  guit  to  recover 
purchase  money  discontinued  and  suit  to  spe- 
cifically enforce  conveyance  brought — Holt  v. 
Mc"WillIams,    21   Pa.    Super.    Ct.    137. 

14.  Orman  v.  Lane,  130  Ala.  305.  Undeter- 
mined appeal  from  settlement  of  guardian's 
account  operating  as  a  supersedeas  pre- 
vents action  on  bond — Municipal  Court  v.  Mc- 
Donough,    24  R.   L   498,   53  Atl.   866. 

15.  Saloman  v.  People,   191   111.   290. 

16.  Action  against  guardian's  sureties 
pending  appeal  from  final  settlement — Chas* 
V.  "Wright  (Iowa)   90  N.  "W.  357. 


2  ABATEMENT   AND   REVIVAL. 

is  a  pendency  may  also  be  ascertained  in  other  titles,^'   and  further  authorities 
and  precedents  upon  identity  of  causes  of  action  may  be  found  elsewhere.^^ 

Improper  splitting  of  a  cause  of  action  is  a  ground  of  abatement/®  as  is 
a  misjoinder  or  a  nonjoinder  ;2°  but,  when  the  law  of  the  place  allows  foreign 
contractors  to  be  severally  sued,  they  may  be  so  sued  in  the  forum. ^^  Under 
acts  permitting  continuance  in  the  original  plaintiff's  name,  he  may  recover  in 
his  own  name  though  he  has  transferred  in  part,-^  and  the  objection  that  plain- 
•tiff  is  not  the  real  party  in  interest  is  untenable.^* 

Death  abates  the  action  though  the  statute  reads  no  action  shall  "abate,"' 
(etc.,  but  it  may  be  "re\'ived."^*  Under  the  code  practice,  equitable  actions  abate 
^y  death  the  same  as  law  actions.^" 

Mandamus  to  enforce  an  officer's  personal  rather  than  official  duty  does  not 
♦abate  by  expiration  of  his  term.^® 

Changing  the  personnel  of  an  official  board  which  has  corporate  power  of 
succession  does  not  change  its  legal  existence.^^  Nothing  short  of  a  final  dis-. 
'charge  of  receivers  will  abate  an  action  against  them.^*  The  death  of  one  co- 
plaintiff'®  or  co-defendant  in  tort  does  not  destroy  the  action  either  at  statute  or 
common  law.*" 

§  2.  Raising  oljections;  waiver.^'^ — They  are  waived  by  going  to  trial,^^  and 
the  plea  must  precede  an  answer  to  the  merits^'  or  a  motion  for  continuance^* 
or  entry  of  an  office  judgment,  unless  the  cause  of  abatement  arise  subsequent- 
ly;*'' but  it  may  be  made  without  further  time  given  to  answer.*'  A  former  officer 
of  a  defunct  corporation  served  in  proceedings  against  it  may  object  that  the 
dissolution  has  abated  the  action.*^  One  to  the  privilege  of  defendant  may  be 
made  on  answer  without  special  appearance.** 


17.  Actions;  Limitation  of  Actions  (as  to 
when   "commenced"). 

38.  Election  of  Remedies;  Former  Adjudi- 
cation. 

19.  Fox  V.  Phyfe.  36  Misc.  (N.  T.)  207; 
King  V.  King,  37  Misc.  (N.  Y.)   63. 

20.  1  Enc.  PI.  &  Pr.  pp.  13.  14.  As  to  what 
Is  misjoinder  and  nonjoinder,  see  post. 
Causes  of  Action,  Parties,  and  titles  treating 
of  particular  proceedings,   such  as  Partition. 

21-     Richards  v.  McNemee.  87  Mo.  App.  396. 

22.  Civ.  Code,  §  40;  McKnight  v.  Bertram, 
H.  &  P.  Co.,   (Kan.)   70  Pac.  345. 

23.  Code  Civ.  Proc.  §  385;  Stufflebeem  v. 
Adelsbach.    135    Cal.    221.    67    Pac.    140. 

24.  2  Ball.  Ann.  Codes  &  St.  4837;  Overlock 
V.  Shinn   (V^•ash.)    68  Pac.  436. 

25.  Overlock  v.  Shinn  (Wash.)  68  Pac.  436. 
20.     Kas  V.  State  (Neb.)   88  N.  W.  776. 

27.  Murphy  v.  Utter.  186  U.  S.  95,  46  Law. 
Ed.  1070. 

28.  Order  to  receivers  to  surrender  prop- 
erty to  owner — Cowen  v.  Merriman,  17  App. 
D.  C.  186.  .^    „„ 

29.  Heald  v.  Wallace   (Tenn.)   71  S.  W.   80. 

30.  (Pub.  St.  c.  165,  §  12),  a  statute  provid- 
ing for  the  continuation  of  an  action  in 
which  there  are  several  plaintlfEs  or  de- 
fendants, it  the  cause  be  one  which  sur- 
vives, means  that  it  must  be  one  which  sur- 
vives to  the  remaining  plaintiffs  or  against 
remaining  defendants— Brown  v.  Kellogg 
(Mass.)  65  N.  E.  378;  Duis  v.  Fisher,  23  Ky. 
Law  R.  1425. 

81.  Consult,  also.  Parties,  Pleadings,  Ap- 
peal and  Review  (Reversible  Error).  A  plea 
alleging  that  decedent's  interest  was  a  home- 
stead held  sufficient  to  raise  the  question 
that  the  administrator  did  not  succeed  to  it 


— Finlayson  v.  Love  (Fla.)  33  So.  306.  Al- 
legations that  the  person  served  was  not 
qualified  to  receive  service  should  with  cer- 
tainty allege  that  such  -was  the  case  w^hen 
service  was  made — Ohio  Oil  Co.  v.  Griest 
(Ind.  App.)  65  N.  E.  534.  An  allegation  that 
an  action  on  a  mortgage  debt  was  pending.  Is 
demurrable  in  a  foreclosure  action  unless  it 
alleges  that  the  other  action  was  "without 
leave  of  court"  (Code  Civ.  Proc.  §  1628)  — 
Schieck  v.  Donohue,  77  App.  Div.  (N.  T.)  321. 
In  Indiana  if  the  prematurity  of  the  action 
does  not  appear  on  the  face  of  the  complaint 
the  abatement  should  be  urged  by  ans-n'er — 
Burns'  Rev.  St.  §  346:  Middaugh  v.  Wilson 
(Ind.  App.)    65  N.  E.   555. 

32.  Yarbrough  v.  De  Martin  (Tex.  Civ. 
App.)  67  S.  W.  177.  Plea  of  another  action 
pending  must  be  ruled  on — Foster  v.  Foster, 
24  Ky.  Law  R.  1396. 

33.  Price  v.  Garvin  (Tex.  Civ.  App.)  69  S. 
W.  985:  Huntington  Mfg.  Co.  v.  Schofleld,  28 
Ind.  App.  95;  Baker  v.  Union  Stock  Yards 
Nat.  Bank  (Neb.)  89  N.  W.  269.  Answering  to 
the  merits  at  same  time  is  waiver — Grand 
Lodge  A.  O.  U.  W.  v.  Bartes  (Neb.)  90  N.  W. 
901;  unless  made  subject  to  the  plea  in  abate- 
ment— Kahn  v.  Southern  B.  &  L.  Ass'n,  115 
Ga.   459. 

34.  Indiana,  etc.,  R.  Co.,  v.  Cohoon,  95  111. 
App.   92. 

35.  Empire  C.  &  C.  Co.  v.  Hull  C.  &  C.  Co., 
51   W.  Va.   474. 

36.  Horn  v.  Noble,  95  111.  App.  101. 

37.  Board  of  Councilmen  v.   Deposit  Bank 

120  Fed.   165.  ..,..,      , 

38.  Baker  v.  Union  Stock  Yards  Nat.  Bank 
(Neb.)    89    N.   W.    269. 


ABATEMENT   AND    REVIVAL.  3 

United  States  courts  may  require  the  objection  to  be  by  plea  though  under 
-the  local  practice  it  is  to  be  made  by  answer.^'' 

Parties  not  joined  must  be  named  and  shown  to  be  within  the  jurisdiction,** 
and  if  jurisdiction  of  the  court  be  assailed  it  must  be  denied  and  also  alleged 
to  be  in  another  court.*^  A  general  allegation  that  the  former  court  had  juris- 
diction under  the  declaration  filed  sufficiently  avers  it,  and  the  jurisdiction  is  not 
a  matter  for  determination.*^ 

Evidence  on  the  merits  may  be  submitted  with  that  on  the  question  under 
the  plea  so  that  the  jury  may  assess  the  damages  if  they  find  for  plaintiff  on 
the  plea.*'  Not  only  pleadings  but  also  the  evidence  and  the  judgment  in  an- 
other suit  pending  on  appeal  may  be  considered  to  ascertain  its  identity  with 
the  one  at  bar.**  Slight  evidence  will  rebut  an  inference  of  vexatiousness  in 
a  second  action.*" 

§  3.  Survivability  of  causes  of  action.*^ — Since  it  affects  a  right,  the  law 
of  the  place  and  not  of  the  forum  governs.*^  Survival  does  not  depend  on  the 
bringing  of  suit  before  the  injured  person  dies.*^  When  a  cause  is  in  judgment, 
it  survives,  though  an  appeal  be  pending  from  an  order  granting  a  new  trial.*' 
An  official  action  does  not  abate  by  the  death  of  plaintiff  officer.^"  Personal  ac 
tions  in  tort  do  not  survive  at  common  law."^  An  action  is  not  ex  delicto  whicl 
seeks  to  cancel  conveyances  in  which  an  agent  had  profited  adversely  to  his  prin- 
cipal and  to  enforce  a  trust  thereon,  though  the  same  facts  might  have  sustained 
an  action  in  tort.**^  Personal  injuries  which  by  some  statutes  are  made  to  sur- 
vive will  include  such  injuries  by  a  railroad  company."  A  law  attaching  sur- 
vivability to  causes  of  action  for  personal  injury  is  not  limited  by  a  law  giving 
a  right  of  action  for  damages  resulting  from  the  death  of  a  person  by  defend- 
ant's wrongful  act,  hence  recovery  under  the  former  act  may  include  damages 
for  pain,  suffering,  expenses  and  losses."^* 

Criminal  conversation  and  loss  of  society  is  a  "damage  to  the  person"  which 
dies  with  the  person."**  So  is  an  action  for  mental  anguish  due  to  delaying  a 
telegram,"  and  malicious  prosecution,  though  business  and  property  be  conse- 
quentially damaged."  Negligence  in  exposing  a  servant  to  danger  of  an  assault 
lis   an   "action   for   assault"   which   abates."'     Conspiracy   to   defeat   a   judgment 


89.  Whelan  v.  Rio  Grande  W.  R.  Co.,  Ill 
Fed.    326. 

In  Tennessee,  allegations  of  fact  giving 
the  right  to  an  attachment  in  equity  must 
be  denied  by  plea — Templeton  v.  Mason,  107 
Tenn.  625. 

40.  Cone  V.  Cone,  61  S.  C.  512.  Allegations 
that  a  chattel  mortgage  was  such  that  the 
right  to  the  security  and  to  enforcement  of 
It  vested  in  plaintiff  with  another  does  not 
plead  his  nonjoinder  in  replevin. — Swift  v. 
Bank   o'  "Washington,   114    Fed.    643. 

41.  Kahn  v.  Southern  B.  &'L..  Ass'n,  115 
Ga.  459. 

42.  Wilson  V.  Atlanta,  K.  &  N.  Ry.  Co.,  115 
Ga.   171. 

43.  Italian-Swiss  Colony  v.  Pease,  194  111. 


•S. 

44 
45. 

Co.  T 
46. 


U.  S.  V.  N.  &  W.  Ry.  Co.,  114  Fed.  682. 

A   mere  affidavit  will — Citizens'  St.   R. 

Shepherd  (Ind.  App.)   62  N.  E.  300. 

Where  a  seduced  woman  was  not  con- 
fined until  after  the  death  of  her  father,  the 
mother  cannot  recover  because  the  right  to 
the  daughter's  services  at  the  time  of  the 
tort  was  in  the  father — Hamilton  v.  Long,  36 


Irish    L.    T.-R.     189,     discussed     16    Harvard 
Law  Rev.  298. 

47.  Sander's  Adm'x  v.  Louisville  &  N.  R. 
Co.,  Ill  Fed.  708. 

48.  Rev.  St.  1895,  art.  3353a,  personal  inju- 
ries— Gulf  C.  &  S.  F.  'R.  Co.  v.  Moore  (Tex, 
Civ.   App.)    68   S.   W.    559. 

49.  Crawford  v.  C.  R.  I.  &  P.  R.  Co.  (Mo.) 
66  S.  W.   350. 

50.  McDonald  V.  Algea,  96  111.  79. 

51.  Wetherell  v.  Chicago  City  R.  Co.,  104 
111.  App.  357. 

52.  Keys  V.  McDermott  (Wis.)  93  N.  W. 
553. 

53.  Sayle*  Ann.  Civ.  St.,  art.  3353a;  Galves- 
ton, H.  &  S.  A.  R.  Co.  V.  Gfhther  (Tex.)  71 
S.    W.    166. 

64.  Rev.  St.  c.  3,  8  123;  c.  70,  J  1;  Wetherell 
V.  Chicago  City  R.  Co..  104  111.  App.  357. 

55.  Pub.  St.,  c.  165,  §  1,  death  of  defendant 
— Dixon   V.  Amerman    (Mass.)    63   N.    E.    1057. 

56.  Code,  §  1491;  Morton  v.  W.  U.  Tel.  Co 
130  N.  C.   299. 

67.  Porter  v.  Mack,  50  W.  Va.  681. 

68.  Ky.  St.,  fi  10;  Lewis'  Adm'r  v.  Taylor 
Coal  Co.,  28  Ky.  Law  R.  2218. 


4  ABATEMENT   AND    REVIVAU 

creditor  is  not  a  tort  to  the  judgment  as  property,  and  hence  dies."  An  action 
to  recover  damages  under  the  statute  against  unlawful  trusts  and  combinations 
is  not  abatable  under  a  statute  applying  to  personal  torts.«o  Both  by  common 
law  and  the  Virginia  statute,  an  action  to  recover  money  from  an  official,  which 
was  paid  under  protest  to  prevent  an  unlawful  seizure,  survives  him.'^  A  stock- 
holder's representatives  may  recover  from  directors  for  deceit  by  which  a  pur- 
chase of  stock  was  induced.®^  In  New  York  a  bank  may  sue  administrators  for 
negligence  of  an  oflficer.^' 

The  death  of  the  injured  person  does  not  abate  the  liability  to  punitive  dam- 
ages.^* In  Tennessee,  if  all  the  persons  entitled  to  benefit  of  an  action  for  wrong- 
fully causing  death  be  themselves  dead,  the  action  abates.^^  The  contrary  is  the 
rule  in  Kentucky^®  and  Pennsylvania.®^ 

Actions  against  a  corporation  do  not  survive  its  dissolution  by  virtue  of  stat- 
utes authorizing  continuance  of  actions  against  executors  of  wrongdoers.®'  A 
corporation  dissolved  by  repeal  of  its  charter  is  not  within  a  provision  saving  the 
right  to  sue  corporations  which  expire.®^  A  law  providing  that  vested  rights 
shall  not  be  impaired  by  the  legislature  when  it  repeals  a  charter  does  not  pro- 
tect causes  of  action  against  the  corporation  from  dpng  with  its  dissolution.'"* 
Not  even  a  bill  to  review  a  decree  entered  before  the  dissolution  will  lie  against 
?,  defunct  corporation.''^  The  action  does  not  die  with  the  civil  death  of  defend- 
ant.''^    A  partnership's  cause  of  action  survives  its  dissolution.^' 

Contempt  to  enforce  a  decree  is  not  a  criminal  proceeding  which  abates  on 
defendant's  death."'* 

A  surviving  joint  contracting  party  may  sue.'"'  Though  a  creditor's  riglit 
to  sue  fraudulently  preferred  creditors  may  have  abated,  he  may  proceed  with  the 
action  against  other  fraudulent  attaching  creditors.''® 

§  4.     Revival  and  continuance. — Eevivor  by  motion  under  the  New  York 
Code  is  a  substitute  for  revivor  by  bill  and  adopts  the  rule  as  to  laches  and 
limitations  by  analogy.     Mere  lapse  of  time  alone  is  not  enough.     It  is  allow- 
able at  discretion,  after  the  period  of  limitation,  where  the  cause  stands  on  an 
interlocutory  judgment.''''     Reasonable  time  will  be  given  if  there  has  been  no 


59.  Jenks  v.  Hoag-.  179  Mass.  583. 

60.  Cnflp  Civ.  Proe..  ?  4K5;  Cleland  ▼.  An- 
derson (Neb.)   »3  N.  W.  S08. 

61.  Code  Va.  1887.  §  2655;  Patton  v.  Brady, 
184  U.  S.  608.  46  Law.  Ed.  713. 

62.  Squlers  v.  Thompson,  73  App.  DIv.  (N. 
Y.)  662. 

63.  Seventeenth  Ward  Bank  v.  Smith,  67 
.\pp.  Dlv.  (N.  T.)   228. 

64.  Where  "trespasser"  has  died — Code. 
1917;  Wagner  v.  Glbbs  (Miss.)  31  So.  434.  In 
Texas,  where  personal  injuries  survive,  the 
recovery  may  include  mental  anguish  and 
pain  suffered  by  deceased  to  the  time  of 
death — Gulf.  C.  &  S.  F.  R.  Co.  v.  Moore  (Tex. 
Civ.   App.)    68   S.  W.    559. 

6.'5.  Sander's  Adm'x  v.  L.  &  N.  R.  Co.,  Ill 
Fed.  408. 

66.  Thomas'  Adm'r  v.  Maryville  Gas  Co., 
23  Ky.  Law  R.  1879. 

67.  Haggerty  v.  Plttston,  17  Pa.  Super. 
Ct.  151. 

68.  But  In  New  York  former  directors 
may  be  sued  after  dissolution — Shayne  v. 
Evening  Post  Pub.  Co.,  168  N.  T.  70.  In  Ken- 
tucky the  law  has  been  repealed  allowing 
corporations  to  be  sued  after  dissolution  for 
the    purpose    of    winding    up    their    affairs. 


Acts  Ky.  1891-93.  c.  203,  effected  the  repeal 
by  re-enacting  the  previous  laws,  omitting 
however  that  provision — Board  of  Council- 
men  V.  Deposit  Bank,  120  Fed.  165. 

69.  Ky.  St.,  §  561;  Board  of  Councllmen  v. 
Deposit  Bank,  120  Fed.   165. 

70.  Ky.  St.,  §  1987;  Board  of  Councllmen  v. 
Deposit  Bank,   120  Fed.   165. 

71.  Board  of  Councllmen  v.  Deposit  Bank, 
120  Fed.  165. 

72.  "Actio  personalis  morltur  cum  per- 
sona" means  natural  death — Shayne  v.  Even- 
ing Post  Pub.  Co..  168  N.  T.  70. 

73.  O'Shea  v.  Kavanaugh  (Neb.)  91  N.  W. 
578 

74.  Hannah  v.  People.  198  111.  77. 

7.n.  Northness  v.  Hlllestad  (Minn.)  91  N. 
W.   1112. 

76.  Civ.  Code,  §  500,  subd.  2;  Chestnut  v. 
Russell.   24  Ky.  Law  R.   704. 

77.  Code  Civ.  Proc.  §  757.  Held  not  improp- 
er to  allow  a  revival  after  many  years  and 
numerous  changes  of  Interest  and  the  death 
of  all  the  parties,  great  injusfice  being  avoid- 
ed and  no  prejudice  appearing;  dictum  that 
delay  need  not  be  ten  years — Jones  v.  Jones. 
68  App.  Dlv.  (N.  Y.)  5,  citing  many  cases: 
affirmed  171  N.  Y.   653. 


ABATEMENT   AND   REVIVAL.  5 

delay.*'  It  may  be  allowed  against  administrators  who  have  appeared,  though  the 
short  statute  would  but  for  such  appearance  have  run.''*  A  continuance  "on  mo- 
tion" against  an  administrator  or  transferee  must  be  upon  notice.^" 

The  new  party  must  ordinarily  be  brought  in,*^  but  in  many  states  substitu- 
tion of  a  pendente  lite  transferee  is  unnecessary.^^  An  action  to  compel  a  guardian 
to  account  may  be  continued  without  substitution,  or  substitution  may  be  made 
upon  suggestion,  since  the  "cause  of  action"  is  one  which  survives  under  the  New 
York  Code.**  Succession  in  office  is  a  "transfer  of  interest"  other  than  death, 
admitting  of  a  continuance  in  the  name  of  the  original  party.** 

A  widow  who  is  sole  beneficiary  of  the  will  is  within  a  provision  that  "heirs" 
may  continue  when  there  is  no  administration  and  no  need  for  one.*''  The  ad- 
ministrator of  the  only  person  entitled  to  recover  for  wrongful  death  of  another 
may  continue  the  action.**  Actions  on  simple  contract  debts  are  not  to  be  revived 
against  heirs.*^  In  Indiana  a  corporation  director's  statutory  liability  is  enforce- 
able against  his  administrator.**  The  administrator  and  heirs  may,  in  Massachu- 
setts, rescind  a  conveyance  obtained  by  fraud.*^  The  successor  in  office  of  an 
official  party  and  not  a  personal  representative  must  continue  the  action.'"'  The 
"right  of  action"  after  appeal  is  the  right  to  reverse  the  judgment.  It  survives 
to  co-defendants  under  the  statute. ^^ 

New  pleadings  are  not  always  essential.^^  If  one  municipal  organization  suc- 
ceeds another  with  no  change  in  name,  population  or  territory,  the  action  proceeds 
without  change  in  pleadings.®'  Executors  should  continue  the  action  "as"  ex- 
ecutors.®* 

Subject  or  object  of  action  revived. — If  the  cause  of  action  changes  pendente 


78.  Tilghman  v.  Paxson  Co.,  115  Fed.  906; 
Same  v.   Foundry  Co.,  Id. 

79.  Phil  &  Read  C.  &  I,  Co.  v.  Butler 
(Mass.)   63  N.  E.  949. 

80.  Mills,  Ann.  Code.  §  15;  Symes  v.  Char- 
piot  (Colo.  App.)  69  Pac.  311;  Code  Civ.  Proc. 
5  756;  Betts  v.  De  Selding  (Sup.)  80  N.  T. 
Supp.  799. 

81.  Symes  v.  People  (Colo.  App.)  69  Pac. 
312.  Under  the  act  of  amendments  and  jeo- 
fails, the  name  of  another  person  may  be 
substituted  for  that  of  the  nominal  plaintiff. 
— Congress  Const.  Co.  v.  Farson  &  Libbey 
Co.,  199  111.  398. 

82.  May  or  may  not  be  done — Parker  v. 
Taylor  (Neb.)  91  N.  W.  537.  In  New  York  an 
ancillary  receiver  of  a  foreign  corporation 
need  not  be  substituted  unless  so  ordered. — 
Code  Civ.  Proc.  §§  755,  756;  Sigma  Iron  Co.  v. 
Brown,  171  N.  Y.  488.  The  transferee  may 
be  substituted — Statute  1893,  §  3912;  Bradford 
V.  Brown  (Okl.)  71  Pac.  655.  The  personal 
representative  of  an  assignee  may  in  New 
York  continue  the  action  though  the  assignee 
had  in  turn  assigned  to  another  person — 
Code  Civ.  Proc.  §§  756,  757;  Betts  v.  De  Seld- 
ing  (Sup.)  80  N.  Y.  Supp.  799.  See  Parties, 
Pleading;  as  to  mode  of  substituting  parties. 

83.  Code  Civ.  Proc.  §  755;  abatement  by 
ward's  majority — Smith  v.  Mingey,  72  App. 
Div.    (N.  Y.)    103,  affirmed,  172  N.  Y.    650. 

84.  Action  by  tax  collector — Code  Civ. 
Proc,  §  385;  Sheehan  v.  Osborne  (Cal.)  69 
Pac.  842. 

85.  1  Rev.  St.,  art.  1246;  Yarbrough  v.  De 
Martin    (Tex.    Civ.   App.)    67   S.   W.    177. 

88.  Haggerty  v.  Pittston,  17  Pa.  Super.  Ct 
151. 


87.  Buck  V.  Hogeboom  (Neb.)  88  N.  W. 
857. 

88.  "All  causes  «  •  •  not  otherwise 
exempt  survive";  see  statute — Brown  v.  Clow 
(Ind.)    62  N.   E.   1006. 

89.  Parker  v.  Simpson,  180  Mass.  334. 
Since  the  right  to  continue  an  action  depends 
on  the  devolution  of  the  interest,  the  follow- 
ing titles  will  afford  further  precedents — De- 
scent and  DistrTbution;  Estates  of  Decedents. 

90.  Kurd's  St.  1897,  p.  103,  §  19;  McDonald 
V.   Algeo,    96    111.   App.    79. 

91.  Jameson  v.  Bartlett  (Neb.)  88  N.  W. 
860. 

An  order  continuing  action  in  the  surviv- 
or's name  on  the  original  pleadings,  he  hav- 
ing succeeded  to  the  whole  interest  contin- 
ues the  entire  cause  of  action — McPhillips 
V.  Fitzgerald,  76  4.pp.  Div.  (N.  Y.)  15.  The 
assignee  of  the  beneficiary  interests  under 
a  policy  may  be  substituted  for  the  Insured 
who  died  after  bringing  action  to  reform  the 
policy  as  to  preTniums  payable  and  to  re- 
cover the  surrendered  value  and  damages  for 
breach  of  contract.  He  succeeds  to  the  en- 
tire claim.  (Code  Civ.  Proc.  §  756,  757)  — 
Hunt  V.  Provident  Sav.  Life  Assur.  Soc,  77 
App.    Div.    (N.   Y.)    33S. 

92.  Warren  v.  Robison  (Utah)  70  Pac.  989. 
In  Washington,  under  the  statutes,  a  pen- 
dente lite  assignee  who  comes  in  on  motion 
must  file  a  supplemental  pleading,  but  it 
may  be  done  afterwards — Powell  v.  Nolan, 
27  Wash.   318,   67   Pac.   712. 

93.  Mobile  Transp.  Co.  v.  City  of  Mobile, 
128  Ala.  335. 

94.  Suing  as  "A.,  executor,"  etc.,  not  suffi- 
cient— Jenkins   v.    Bramlett,    131   Ala.    597. 


^  ABDUCTION— ABORTION. 

lite,  but  before  the  death,  the  revival  will  be  on  the  substituted  new  cause  of 
action." 

ABDUCTION.  9« 

In  Tennessee  it  is  no  defense  that  the  girl  requested  an  elopement." 
The  indictment  need  not  allege  the  chastity  of  the  woman  when  her  unchastity 
is  mere  matter  of  defense.®*  An  allegation  of  a  taking  for  "prostitution  and  con- 
cubinage" is  not  double  but  merely  charges  two  intents  to  the  same  offense  which 
is  proper.®*  For  the  purpose  of  proving  age  the  inscription  over  the  grave  of  one 
bom  at  the  same  time  as  the  abducted  female  may  be  received.^  The  prosecutrix 
should  be  corroborated.^  Her  testimony  that  she  was  taken  to  a  certain  place 
is  not  suflSciently  corroborated  by  the  fact  that  she  was  seen  there  with  accused 
and  others,^  but  the  testimony  of  another  woman  alleged  to  have  also  been  abducted 
at  the  same  time  is  admissible  for  corroboration.*  An  instruction  is  erroneous 
which  submits  only  a  taking  for  concubinage  under  an  indictment  for  taking  for 
concubinage,  prostitution  or  marriage.  The  same  is  true  of  one  which  requires 
an  acquittal  if  the  taking  was  simply  for  the  purpose  of  "intercourse  alone^'  since 
that  excludes  a  taking  for  marriage."^  Unchastity  being  a  defense  is  not  for  the 
state  to  disprove,  but  for  accused  to  prove  and  it  is  sufficient  that  his  evidence 
raises  a  reasonable  doubt.* 

ABOBTION.T 

Unlawfully  procurmg  a  miscarriage  consists  in  unlawfully  destroying  the 
human  foetus  or  in  causing  it  to  be  bom  before  its  time.'  It  is  not  essential  to 
a  conviction  that  a  miscarriage  resulted  from  the  use  of  the  instrument  where  the 
statute  defines  as  a  crime  the  use  of  it  with  intent  to  produce  a  miscarriage,"  nor 
any  defense  that  the  woman  consented.^"  Administering  does  not  involve  anv 
element  of  compulsion.^^  The  specific  intent  to  produce  an  abortion  must  exist.^^ 
An  affidavit  on  which  an  information  is  based  may  contain  separate  counts  charging 


•B.  Defendant  died  after  giving  statiitory 
bond  to  release  property  from  mechanic's 
lien.  Action  Is  revlvable  against  bond  and 
not  land  and  heirs. — Holmes  v.  Humphreys 
(Mass.)    63   N.   E.   396. 

96.  See,  also,  general  matters  of  law  and 
practice  in  Criminal  Law;  Criminal  Proced- 
ure; Indictments  and  Informations;  Clark 
and  Marshall  Crimes. 

97.  Shannon's  Code,  f  6462;  Griffin  v.  State 
(Tenn.)    70  S.  W.   61. 

98.  Shannon's  Code,  §  6462;  Griffin  v.  State 
(Tenn.)   70  S.  W.  61. 

99.  Shannon's  Code,  §§  6462,  7084,  7086; 
Griffin  V.  State  (Tenn.)   70  S.  "W.  61. 

1.  Boyett  V.  State.  130  Ala.  77;  general  ap- 
pearance of  girl  and  statements  of  accused, 
received  in  rape  case — People  v.  Elco  (Mich.) 
91  N.  W.  755:  declarations  of  the  woman  in- 
admissible where  she  was  not  asked  while 
testifying  if  she  made  them — State  v.  Deputy, 
8  Pennewlll  (Del.)   19. 

2.  Evidence  of  physician  that  the  girl  had 
had  sexual  Intercourse  but  not  fixing  a  time 
and  evidence  of  a  ■witness  ■^ho  saw^  prosecu- 
trix and  another  girl  with  a  man  not  identi- 
fied as  accused  held  not  corroborative  of  the 
prosecutrix — People  v.  Swasey,  77  App.  Div. 
(N.   T.)    185.   Corroboration  of     female     vic- 


tim of  other  sexual  crimes  see  Rape,  Seduc- 
tion, and  corroboration  of  accomplices,  see 
Criminal   Procedure. 

3.  Charge  was  "taking  to  house  of  prosti- 
tution"— People  v.  Miller,  70  App.  DIv.  (N. 
Y.)    592. 

4.  Pen.  Code,  {  283;  People  v.  Panyko,  71 
App.  Div.   (X.  Y.)   324,  affirmed,  64  N.  E.  1124. 

5.  Request  by  defendant,  refused — Boyett 
V.  State,  130  Ala,  77;  request  refused  because 
already  covered — Griffin  v.  State  (Tenn.)  70 
S.   W.    61. 

6.  Griffln  v.  State  (Tenn.)  70  S.  W.  61. 

7.  See,  also,  general  matters  of  law  and 
practice  in  Criminal  Law;  Criminal  Proced- 
ure: Indictments,  etc.,  and  see  Clark  and 
Marshall  Crimes. 

8.  17  Del.  Laws,  c.  226;  State  v.  Magnell 
(Del.  Gen.  Sess.)  3  Pennewlll,  307,  51  Atl. 
606. 

9.  17  Del.  Laws,  c.  226;  State  v.  Magnel! 
(Del.  Gen.  Sess.)  3  Pennewlll.  307,  51  Atl.  606. 

10.  State  V.  Magnell  (Del.  Gen.  Sess.)  3 
Pennewill.  307,  51  Atl.  606. 

11.  State  V.  Jones  (Del.  Gen.  Sess.)  53  Atl 
858. 

12.  Rev.  Code,  p.  930;  §  2;  State  v.  Jones 
(Del.  Gen.  Sess.)    53  Atl.   858. 


ABSTRACTS— ACCESSION   AND    CONFUSION.  7 

different  metliods  of  producing  the  abortion.^^  An  allegation  of  the  specific  in- 
tent sufficiently  negatives  the  administering  of  medicine  for  any  lawful  purposes  of 
saving  life.^*  Proof  of  a  time  prior  to  that  charged  is  no  variance.^^  ^Motive  may  be 
shown  by  the  fact  that  accused  was  the  father  and  it  is  admissible  that  he  pro- 
posed to  others  that  they  have  intercourse  with  the  woman.^*^  Intent  may  be 
proved  by  admissions,  acts  of  concealment  or  other  circumstances/^  or  inferred 
from  the  entire  transaction.^*  The  woman  may  testify  whether  in  her  opinion 
accused  intended  to  produce  an  abortion  or  as  he  claimed  to  treat  for  a  venereal 
disease.^*  Eeputation  for  morality  and  decency  may  be  sho^\Ti  consisting  in  what 
is  generally  said  about  the  accused  respecting  such  traits.^"  An  attempt  must  be 
proved  by  showing  the  use  of  means  adequate  to  produce  the  effect  and  not  merely 
by  showing  a  prescription  of  it.^^     An  instruction  may  follow  the  statute.^* 

ABSTRACTS  OF  TITLE. 23 

These  are  historical  briefs  or  synopses  of  the  written  evidences  of  title  to  land 
or  of  the  records  of  such  titles.-*  The  obligation  to  provide  one  is  usually  upon 
the  purchaser,  though  it  is  very  frequently  a  matter  of  the  coutract.^^  Public  ab- 
stracts in  Mississippi  must  be  kept  up,  and  the  clerk  may  recover  the  stated  ab- 
stracting fee  from  the  owner  of  each  subdivision  of  land.^®  An  abstracter  is  liable 
for  errors  caused  by  failure  to  exercise  ordinary  care  even  though  the  purchaser 
procured  the  abstract  through  an  undisclosed  agency.^^ 

ACCESSION  AND  CONFUSION  OF  PROPERTY. 

The  former  of  these  terms  signifies  the  incorporation  of  property  with  or  its 
fixed  annexation  to  other  property  so  that  the  ownership  of  that  added  is  acquired 
by  the  owner  of  that  to  which  it  is  added.  Confusion  differs  in  being  an  inter- 
mixture of  chattels  of  the  same  species  into  an  inseparable  mass  to  the  loss  of 
that  owner  who,  without  the  other's  consent,  so  intermixes.^®  A  form  of  accession 
results  from  giving  the  character  of  fixtures  to  any  structure  attached  to  land.^^ 
The  innocent  maker  of  improvements  may  ordinarily  be  reimbursed.^**  Improve- 
ments made  by  mistake  merely  are  not  recoverable  in  Ehode  Island.^^  A  creditor 
may  sometimes  enforce  his  rights  against  improvements  made  by  the  debtor  on 
another's  land.**     Equity  may  afford  relief  in  addition  to  statutory  remedies  to 


13.  Burns'  Rev.  St.  1901,  §  1813;  on  Infor- 
mation— Diehl  V.  State.  157  Ind.  549. 

14.  State  V.  Jones  (Del.  Gen.  Sess.)  53  Atl. 
858. 

15.  State    V.   Magnell    (Del.    Gen.    Sess.)    3 
Pennewlll,  307,  51  Atl.   606. 

16.  Fretwell  v.  State   (Tex.  Cr.  App.)   67  S. 
W.  1021. 

17.  State   V.    MagneU    (Del.    Gen.    Sess.)    3 
Pennewlll,  307,  51  Atl.  606. 


State  V.  Jones  (Del.  Gen.  Sess.)  53  Atl. 

State   V.   Pierce.    85   Minn.    101. 

State  V.  Jones  (Del.  Gen.  Sess.)  53  Atl. 


18. 

858. 
19. 

20. 

858. 

21.  Ergot  was  prescribed  but  too  small  a 
dose  was  taken — Fretwell  v.  State  (Tex.  Cr. 
App.)  67  S.  W.  1021;  sufficiency  of  evidence 
and  particulars  of  proof — State  v.  Magnell 
(Del.  Gen.  Sess.)   3  Pennewlll,  307,  51  Atl.  606. 

22.  Fretwell  v.  State  (Tex.  Cr.  App.)  67  S. 
"W.  1021. 

23.  Abstracts  of  title  auxiliary  to  plead- 
ing's in  trespass  to  try  title,  see  Trespass  to 
Try   Title. 


24.  Cyc.  Lavf   Diet.,   "Abstracts." 

25.  1  Am.  &  Eng-.  Enc.  Law,   213. 

26.  Code,  1892,  §  301;  L.  1898,  p.  59,  § 
1991w;  Yazoo  &  M.  V.  R.  Co.  v.  Edwards,  78 
Miss.  950. 

27.  Purchaser's  omission  to  pay  undis- 
closed judgment  though  in  funds  and  in- 
tending to  clear  all  incumbrances  sufficient 
to  prove  reliance  on  abstract — Young  v. 
Lohr  (Iowa)   92  N.  W.  684. 

28.  Cyc.  Law  Diet.,  "Accession";  "Confu- 
sion." 

29.  See  Fixtures. 

30.  Occupying  grantee  given  reimburse- 
ment against  grantee  who  first  recorded — 
Penrose  v.  Doherty,  70  Ark.  256.  Contra  if  lie 
had  no  title  and  did  have  notice — Texas  & 
N.  O.  R.  Co.  V.  Barber  (Tex.  Civ.  App.)  71  S. 
W.  393;  Willis  v.  McKinnon,  37  Misc.  (N.  Y.) 
386. 

31.  Made  by  dowress  on  lands  not  of  in- 
heritance— Olney  v.  Weaver,  24  R.  I.  408. 

32.  National  Valley  Bank  v.  Hancock,  4 
Va.  Sup.  Ct.  R.  20,  40  S.  E.  611. 


8 


ACCORD  AND  SATISFACTION. 


improving  occupants."  Attempted  conveyances  to  the  grantees  may  tend  to  prove 
their  good  faith  in  improving.^* 

There  is  no  confusion  by  a  debtor  who  mingles  surrendered  collaterals  with 
his  other  property,  though  he  also  fails  to  substitute  other  property  of  the  same 
species  for  collateral  as  agreed.^'^  The  owner  of  innocently  confused  goods  may 
recover  his  share  in  specie  out  of  the  common  mass,  without  showing  that  there 
was  any  intention  to  thwart  identification.^^  As  against  an  innocent  purchaser 
from  the  wrongdoing  owner,  the  real  owner  may  select  the  equivalent  of  his 
own.^^  A  levying  creditor  may  have  satisfaction  out  of  the  entire  stock  of  one 
with  whose  merchandise  the  debtor's  was  commingled  in  fraud  of  the  creditor.^^ 
Priority  is  given  the  beneficiary  of  trust  property  which  has  been  commingled  if 
Che  mass  has  been  benefited  in  consequence.^^ 

A  separation  need  not  be  demanded  before  suing,  where  the  confusion  makes 
it  impossible.*"  A  sheriff  must  not  be  directed  to  levy  on  a  certain  number  of 
chattels  as  they  average,  for  the  purpose  of  effecting  a  division.  That  would  be 
a  judicial  act.     A  partition  must  be  resorted  to.*^ 

ACCORD  AND  SATISFACTION.42 

§  1.  The  accord.  A.  In  general. — An  accord  is  the  making  of  a  new  agree- 
ment in  substitution  for  the  old  liability  or  right.*^     Eights  under  a  will  may  be 


33.  Mercer  v.  Justice,  63  Kan.  225,  65  Pac. 
219. 

34.  Invalid  because  husband  did  not  join — 
Nolan  V.  Moore  (Tex.  Civ.  App.)  70  S.  W.  785. 

35.  Samson   v.   Rouse,   72   Vt.    422. 

36.  In  replevin — Rust  Land  &  Lumber  Co. 
V.  Isom,  70  Ark.  99. 

37.  Blodg-ett  v.  Seals,  78  Miss.   522. 

38.  Eldridge  v.  Fidelity  &  Deposit  Co. 
(Tex.  Civ.  App.)   63  S.  W.  955. 

39.  Kansas  State  Bank  v.  First  State 
Bank,  62  Kan.  788,  64  Pac.  634;  Meystedt  v. 
Grace,  86  Mo.  App.  178;  Pearson  v.  Haydel, 
90  Mo.   App.    253. 

40.  Vaughn  v.  Rhode  Island  M.  &  T.  Co., 
24  R.  I.  350. 

41.  Two  herds  mortg-aged  to  different  per- 
sons and  then  allowed  to  mingle — Belcher 
v.  Cassidy  Bros.  Live  Stock  Commission  Co., 
(Tex.  Civ.  App.)  62  S.  W.  924. 

42.  "Payment"  as  a  discharge  of  obliga- 
tions expressed  in  money,  see  Payment  and 
Tender;  seaman's  release,  see  Shipping  and 
Water  Traffic. 

43.  Cyc.  Law  Diet.  "Accord."  If  the  or- 
iginal liability  was  ex  contractu,  the  result 
is  a  Novation,  q.  v.,  as  to  the  requisites  of  a 
novation.  A  release  may  be  and  usually  is 
on'-ly  a  writing  declaring  the  terms  of  an  ac- 
cord and  satisfaction.  See  Releases.  Com- 
positions -CT'itU  Creditors  also  usually  involve 
accords  and  satisfactions  but  with  the  pe- 
culiarity that  an  obligation  between  the  cred- 
itors also  results.  Accepting  orders  for  goods 
on  account  of  wages  not  yet  due — Martin- 
Alexander  Lumber  Co.  v.  Johnson,  70  Ark. 
215.  An  accord  is  shown  by  an  agreement 
by  a  debtor  to  pay  interest  to  the  creditor 
and  a  release  of  the  debt  excepting  only  such 
Interest  to  be  paid — Price's  Adm'x  v.  Price's 
Adm'x,  23  Ky.  Law  R.  1911,  1947.  Taking 
from  one  who  had  converted  money  a  note 
executed  by  the  person  to  whom  it  had  been 
loaned  is  not  a  discharge  of  liability  for  the 
conversion — Black  v.   Black   (Tex.  Civ.  App.) 


67  S.  W.  928.  One  who  pledges  borrowed 
property  and  borrows  money  of  the  owner 
to  redeem  continues  his  liability  in  an  other 
debt — Dibble  v.   Richardson,   171  N.   Y.   131. 

Interpretation — Agreement  between  heirs 
of  the  mortgagor  claiming  as  remaindermen 
and  the  mortgagee,  to  pro  rate  the  moneys 
derived  from  mortgage  sale  according  to  a 
scale  indicated — Ex  parte  Felder,  61  S.  C.  523; 
Felder  v.  Vose,  Id;  releasing  a  certificate 
held  not  an  intended  release  of  one  already 
issued  in  lieu  of  the  original — Western  Loan 
&  Sav.  Co.  V.  Desky,  24  Utah,  347,  68  Pac.  141. 
A  settlement  between  original  owners  who 
had  deeded  land  and  taken  a  reconveyance 
of  it  as  security,  and  the  grantees  (and  debt- 
ors) held  to  release  all  claims  by  the  original 
owner — Adams  v.  Hopkins  (Cal.)  69  Pac.  228. 
A  contract  held  not  to  have  included  satis- 
faction for  a  libel  committed  on  the  same  day 
merely  because  the  contract  was  a  general 
settlement  of  "all  controversies" — "Wallace  v. 
Homestead  Co.  (Iowa)  90  N.  W.  835.  A 
compromise  of  judgments  in  consideration 
of  compromises  by  other  creditors  and  one 
with  the  same  creditor  in  consideration  of 
the  first  recited  held  to  be  one  contract — 
Dyer  v.  Muhlenberg  County  (C.  C.  A.)  117 
Fed.  586.  Discharge  from  "any  and  all  lia- 
bility on  judgments"  for  sum  specified  in- 
cludes liability  for  costs  and  interest — Dyer 
v.  Muhlenberg  County  (C.  C.  A.)  117  Fed. 
586.  "Relinquish  and  cancel  all  book  ac- 
counts, contracts  and  demands  existing"  in- 
cludes all  mutual  accounts — Kentucky  River 
Lumber  Co.  v.  Moore-Whipple  Lumber  Co., 
24  Ky.  Law  R.  587.  A  release  on  considera- 
tion of  building  a  wall  to  protect  a  founda- 
tion does  not  discharge  further  damage  due 
to  faulty  design  of  the  protecting  wall — 
Paterson  Extension  R.  Co..  v.  Rector,  etc., 
of  Church  of  Holy  Communion  (N.  J.  Err.  & 
App.)  53  Atl.  449;  family  settlement  con- 
=;trued  to  include  a  guaranty  that  a  share 
'  should     equal    a    certain     sum — Chauvet     v. 


ACCORD  AND  SATISFACTION.  9 

the  subject  of  a  settlement.**  It  must  be  understood  and  assented  to,  that  a  part 
payment  is  accepted  in  full*^  and  a  protest  against  correctness  with  notice  of  a 
claim  will  be  overcome  by  such  an  acceptance.*®  If  a  cash  payment  Be  made  with 
a  promise  for  further  payment,  it  is  inferred  that  the  ofPer  is  accepted.*^  Accept- 
ing a  check  from  an  agent  kno'ma.  to  have  authority  to  effect  only  full  settlement 
shows  an  accord  and  satisfaction.** 

An  agent  may  effect  a  compromise.*'  An  attorney  has  presumed  authority 
to  compromise  a  suit/"  &ut  acts  by  an  agent  in  substituting  his  own  liability  for 
a  debtor's  must  be  brought  home  to  his  principal. ^^' 

Trustees  in  bankruptcy^^  and  executors  and  guardians  under  many  statutes 
may  effect  compromises  if  for  the  good  of  the  estate.^'^  If  the  executor  as  an  heir 
joins  with  the  other  heirs  it  is  valid.^*  A  satisfaction  accepted  by  the  sole  heir 
and  next  of  kin  is  made  good  in  its  origin  by  the  subsequent  appointment  of  such 
person  as  administrator.^^ 

An  agreement  to  discontinue  a  pending  action  without  further  costs  is  broken 
by  the  entry  by  plaintiff's  attorney  of  a  judgment  to  protect  his  lien  thereby  im- 
posing more  costs.^® 

B.  The  consideration  may  move  from  a  third  person/''  as  where  he  indorses 
notes  for  lesser  amount  which  are  accepted  in  full/*  or  it  may  move  to  a  third 


Ives,  62  App.  Div.    (N.  T.)   339;  affirmed,  173 
N.    T.    192. 

44.  Chauvet  v.  Ives,  62  App.  Div.  (N.  Y.) 
339;  affirmed,  173  N.  T.  192.  See,  also.  Es- 
tates of  decedents. 

45.  Hence  an  endorsement  by  county  offi- 
cers on  a  statement  of  claim  that  the  amount 
allowed  was  in  full  did  not  bind  the  claimant 
who  cashed  warrants  for  the  amount  but  had 
been  accustomed  on  previous  claims  to  have 
disallowed  items  subsequently  allowed — 
Board  of  Com'rs  v.  Durnell  (Colo.  App.)  66 
Pac.  1073.  Not  shown  where  debtor  failed  to 
stipulate  that  a  draft  for  part  was  to  be  in 
full  and  creditor  drew  without  saying  that 
it  was — Horwich  v.  Western  Brewery  Co., 
95  111.  App.  162;  especially  not  if  creditor  re- 
fuses tender  as  in  full — Perin  v.  Cathcart 
(Iowa)   89  N.  W.  12. 

Acceptance  of  checks  tendered  in  full  is 
sufficient — Critchell  v.  Loftis,  100  111.  App. 
196;  though  they  were  not  marked  "in  full" — 
Whitaker  v.  Eilenberg.  70  App.  Div.  (N.  Y.) 
489,  in  which  case  the  parties  effected  a  sale 
of  a  crop  of  grapes  at  a  fixed  price  after 
part  performance  of  which  deductions  for 
bad  quality  were  made  from  remittances  and 
finally  the  buyer  refused  to  accept  save  on 
consignment;  but  such  condition  must  be 
understood — Fremont  Foundry  &  Mach.  Co. 
V.  Norton  (Neb.)  92  N.  W.  1058.  A  check 
tendered  by  an  attorney  in  full  "satisfac- 
tion" of  moneys  collected  for  a  client  who 
disputed  the  charge  for  services — Greenlee 
V.  Masnot    (Iowa)    90  N.  W.   338. 

46.  McCormick  v.  St.  Louis,  166  Mo.  315. 

47.  Evidence  held  sufficient  where  cash 
■was  paid  on  a  disputed  note  and  a  promise 
made  to  pay  a  further  sum  at  a  future  time 
— Worden  v.  Houston,  92  Mo.  App.  371. 

48.  Agent  of  a  municipality  In  dispute 
with  contractor — Genung  v.  Waverly,  75  App. 
Div.  (N.  Y.)   610. 

49.  Williamson  v.  North  Pac.  Lumber  Co. 
(Or.)  70  Pac.  387.  Mere  possessor  of  note 
cannot — Corbet  v.  Waller,  27  Wash.  242,  67 
Pac.   567,     In  procuring  transfer  of  debtor's 


property  he  may  iielease  guarantor — Martin 
V.  Rolan  Grocery  Co.  (Tex.  Civ.  App.)  66 
S.  W.   212. 

50.  Strattner  v.  Wilmington  City  Elec.  Co. 
(Del.  Super.)  53  Atl.  436.  Railroad  general 
attorney  cannot  agree  to  employ  an  ad- 
verse litigant — Nephew  v.  Michigan  Cent.  R. 
Co..    128    Mich.    599. 

51.  Sending  a  receipt  to  the  creditor's 
manager  for  his  individual  debt  and  a 
check  for  the  balance  "in  full"  which  the 
manager  for  his  individual  debt  and  a 
the  creditor  principal  against  whom  no  right 
of  set-off  of  their  manager's  debt  had  ever 
been  claimed — Mull  v.  Tngalls,  30  Misc.  (N. 
Y.)   80. 

52.  Agreement  to  take  half  held  proper — 
Simmons  v.  Richards  (Tex.  Civ.  App.)  66 
S.  W.   687. 

53.  Code  Civ.  Proc,  §  1588;  Brosnan  v. 
Kramer,  135  Cal,  36,  66  Pac.  979;  in  Kentucky 
a  guardian  must  first  procure  approval  of 
court,  (Gen.  St.,  c.  80,  art.  2);  Bunnell  V.Bun- 
nell, 23  Ky.  Law  R.  800.  The  same  is  re- 
quired of  an  executor  in  New  York;  it  is  not 
sufficient  that  the  agreement  be  made  and 
presented  to  the  court  for  enforcement;  Laws 
1893,  c.  100;  In  re  Bronson's  Estate,  69  App. 
Div.   (N.  Y.)    487. 

54.  Merkert's  Estate  v.  Grobe  (Iowa)  90 
N.    W.    490. 

55.  Liability  for  death  of  intestate — Doyle 
V.  New  York,  O.  &  W.  Ry.  Co.,  66  App.  Div. 
(N.    Y.)    398. 

56.  Rosenthal  v.  Rudnick,  76  App.  Div.  (N. 
Y.)     624. 

57.  W.  F.  Taylor  Co.  v.  Baines  Grocery 
Co.  (Tex.  Civ.  App.)  72  S.  W.  260.  Payment  of 
an  agreed  sum  of  money  to  satisfy  a  levy 
against  another — Marshall  v.  BuUard,  114 
Iowa,  462;  54  L.  R.  A.  862.  Accord  and  satis- 
faction and  release  to  a  newspaper  proprie- 
tor upon  his  retracting  bars  action  against 
his  informant — Rogers  v.  Cox  (N.  J.)  50 
Atl.    143. 

58.  Alimony  decree — Fred  v.  Fred  (N.  J. 
Ch.)   50  Atl.   776. 


10 


ACCORD  AND  SATISFACTION. 


person  but  must  not  be  in  fraud  of  creditors."*^  The  right  of  other  creditors  to 
an  equitable  enforcement  of  a  scheme  to  compromise  the  entire  indebtedness  of  a 
county  is  sufficient  to  make  it  binding/**  or  it  may  suffice  if  a  three  party  agree- 
ment has  been  partially  performed  by  the  other  parties.^^  An  agreement  to  em- 
ploy for  an  indefinite  time  is  no  consideration,  but  employment  given  under  it 
and  accepted  may  be.^^  Surrendered  rights  must  be  real  and  substantial  to  afford 
a  consideration.^'  Discontinuance  without  further  costs  is  sufficient.®*  It  makes 
no  difference  that  the  payor  gave  only  what  he  claimed  to  be  due.®^  If  it  be  a 
settlement  of  title  the  dispute  must  be  such  as  that  good  lawyers  might  easily  dif- 
fer.*^ The  contrary  was  held  where  a  claim  of  right  was  disputed  on  a  point 
in  reality  free  from  doubt.^^  A  belief  that  a  policy  is  voidable  for  misrepresenta- 
tion by  the  insured  notwithstanding  an  "incontestable  clause"  suffices  to  raise  a 
doubt.®^  Threatened  litigation  must  be  such  as  the  opposing  party  might  main- 
tain.'* A  surrender  of  levied  property  is  consideration  for  dismissal  of  a  counter- 
suit  only  when  the  levy  is  lawful.'^** 

A  fart  payment  received  in  full  is  not  sufficient  since  it  lacks  a  consideration; 
unless  the  amount  be  unliquidated  or  in  dispute'^^  as  where  a  judgment  is  appeal- 
able'* but  the  payment  may  have  been  accepted  only  to  avert  financial  disaster.''' 
Applying  on  the  original  note  proceeds  of  a  check  tendered  for  a  part  renewal 
creates  no  accord  because  the  liability  was  liquidated.''*  A  contract  may  be  un- 
liquidated though  written.'''  Inclusion  of  one  unliquidated  item  with  liquidated 
ones  suffices.''^ 

C.  Fraud,  mistahe  and  duress.'''^ — An  executed  settlement  can  only  be  impeached 
for  proven  fraud,  mistake  or  duress.''*     Mistake,'®  misrepresentation  or  fraud" 


59.  Conveyance  to  daughter  of  contestant 
of  will  invalid,  though  devisee  aside  from 
the  fraud  might  have  so  conveyed — Smith  v. 
Patton.  194  111.  638. 

60.  Compromise  with  bondholders — Dyer 
V.  Muhlenberg  County  (C.  C.  A.)  117  Fed.  586. 

«1.  Settlement  of  disputed  claims  between 
members  of  a  corporation — Adams  v.  Crown 
Coal  &  Tow  Co..  198  111.  445. 

62.  Carroll  v.  M.  K.  &  T.  R.  Co.  (Tex.  Civ. 
App.)   69  S.  W.  1004. 

63.  Waiver  of  right  to  go  into  bankruptcy 
— Herman  v.  Schlesinger,  114  Wis.  382;  For- 
bearance to  appeal  sufficient — In  re  Freeman, 
117  Fed.  680;  waiver  of  right  to  enforce  a 
bond  of  indemnity,  sufficient  to  support  sur- 
render of  bond  and  substitution  of  new  one — 
German-American  Bank  v.  Schwinger,  75 
App.  Dlv.  (N.  Y.)  393;  payment  of  a  sum  due 
and  liquidated  not  sufficient — Harrison  v. 
Murray  Iron  "Works  Co.  (Mo.  App.)  70  S.  W. 
261.  A  "settlement"  with  a  building  and  loan 
association  is  without  consideration  where  as 
a  matter  of  fact  it  is  based  on  a  release  of 
rights  under  a  certificate  already  cancelled 
by  the  issue  of  one  in  its  stead  and  In  con- 
sideration of  such  release  a  credit  on  the 
loan  which  at  the  time  had  been  fully  re- 
paid— Western  Loan  and  Sav.  Co.  v.  Desky, 
24  Utah,  347,  68  Pac.  141. 

64.  Rosenthal  v.  Rudnick,  76  App.  Div.  (N. 
Y.)    624. 

65.  McCormick  v.  St.  Louis.  166  Mo.  315. 

66.  Family  settlement — Bunnell  v.  Bun- 
nell, 23  Ky.  Law  R.  800. 

67.  City  Elec.  R.  Co.  v.  Floyd  County 
(Ga.)  42  S.  B.  45. 

68.  Franklin  Life  Ins.  Co.  v.  Villeneuve 
(Tex.  Civ.  App.)   68  S.  W.  203. 

69.  Contest  of  will  by  one  who  was  a  de- 


visee and  also  had  a  contract  for  conveyance 
— Jennings  v.  Jennings  (Iowa)   87  N.  W.  726. 

70.  Hawkins  v.  Collins,  61  S.  C.  637. 

71.  Abelson  v.  Gordon,  38  Misc.  (N.  Y.) 
812;  Prairie  Grove  Cheese  Mfg.  Co.  v.  Luder 
(Wis.)  90  N.  W.  1085;  giving  receipt  In  full 
not  effective — Bingham  v.  Browning,  97  111. 
App.  442;  Ness  v.  Minnesota  &  Colorado  Co. 
(Minn.)  92  N.  W.  333;  Evers  v.  Ostheimer,  37 
Misc.  (N.  Y.)  163.  Disputed  amount  agreed  on 
with  agent — Cleveland  v.  Toby,  36  Misc.  (N. 
Y.)  319;  unliquidated  loss  under  fire  policy — 
Rlggs  V.  Home  Mut.  Fire  Ass'n,  61  S.  C.  448; 
but  not  a  liquidated  benefit  under  a  life  pol- 
icy— Goodson  V.  National  Masonic  Ace.  Ass'n, 
91  Mo.  App.  839;  dispute  as  to  whether  with- 
drawals by  retiring  partners  should  be 
charged — Bingham  v.  Browning,  197  111.  122; 
dispute  as  to  amount  due — C.  R.  I.  &  P.  R. 
Co.  V.  Buckstaff  (Neb.)  91  N.  W.  426;  estop- 
pel to  deny  dispute  or  lack  of  Indebtedness 
after  other  parties  had  partially  performed — 
Adams  v.  Crown  Coal  &  Tow  Co.,  198  111.  445. 

72.  Williams  v.  Blumenthal,  27  Wash.  24, 
67  Pac.  393;  In  re  Freeman,  117  Fed.  680. 

73.  McCormick  v.  St.  Louis,  166  Mo.  315. 

74.  Kelly  V.  Lawrence  Bros.,  78  App.  Div. 
(N.    Y.)    484. 

75.  Bingham  v.  Browning,  197  111.  122. 

76.  Settlement  embraced  an  open  account 
and  a  note  and  judgment — Little  v.  Koerner. 
28  Ind.  App.  625. 

77.  Evidence,  see  post,  §  3. 

78.  Tansey  v.  Kansas  City,  P.  &  G.  R.  Co., 
90    Mo.    App.    101. 

79.  Mutual  assumption  prompted  by  de- 
fendant's honest  prediction  that  Injuries 
were  not  permanent — Wilcox  v.  Chicago  &  N. 
W.  R.  Co.,  Ill  Fed.  435. 

80.  Imposing  release  on  ignorant  foreign- 


ACCORD  AND  SATISFACTION. 


11 


but  not  mere  opinion  as  to  extent  or  permanency  of  injury  may  invalidate  a  re- 
lease of  liability  for  injuries/^  It  is  not  improper  to  rely  on  the  opposite  party's 
reading  of  the  contents  of  the  release.®^  A  settlement  is  valid  though  one  party 
was  attorney  and  adviser  of  the  other  who  acted  in  this  without  advice  of  coun- 
sel.*^ Medical  prognosis  is  mere  opinion  and  not  fraud. ^*  A  note  procured  on 
settlement  of  a  fraudulent  transaction  does  not  extinguish  the  original  liability 
where  a  part  of  the  fraudulent  scheme  was  to  procure  the  note.^'  Mere  inade- 
quacy of  compensation  to  one  who  without  being  imposed  on  signed  a  release  of 
injuries  will  not  defeat  it  in  equity.^^  A  co-obligor  cannot  avail  of  a  settlement 
procured  by  fraud  of  the  other.*^  A  belief  that  evidences  of  right  were  irrevoca- 
bly lost,  in  consequence  of  which  one  compromised  is  not  mistake.®* 

Rescission  is  not  necessary  to  suit  on  a  collateral  liability  which  was  not  in- 
cluded in  the  settlement*®  but  when  nor  ssary  it  must  be  seasonably  made.°°  In 
order  to  rescind  an  accord  and  satisfaction  for  fraud  what  has  been  paid  must  be 
returned'^  though  a  part  payment  on  a  liquidated  sum  not  disputable  need  not 
be®*  and  money  need  not  be  returned  before  suing  on  a  fraudulently  released 
claim.'* 

§  2.  Satisfaction  or  discharge.^* — Generally  speaking  the  accord  must  be 
executed  before  a  satisfaction  is  had®"  but  an  agreement  to  compromise  on  mutual 
performances  is  enforceable  on  showing  readiness  to  perform."  It  is  not  necessary 
that  everything  be  fully  executed.®^     It  is  a  good  defense  to  action  on  a  judgment.^^ 


era — Schu8  v.  Powers-Simpson  Co.,  85  Minn. 
447;  release  represented  to  be  liospital  dis- 
charge— International  &  G.  N.  R.  Co.  v. 
Harris  (Tex.  Civ.  App.)  65  S.  W.  885;  Id., 
(Tox.  Sup.)  67  S.  W.  315.  To  be  available  at 
law  they  must  go  to  the  procuring  the 
execution  of  the  release;  if  to  the  value  of 
consideration  can  be  remedied  only  in  equity 
— Papke  V.  G.  H.  Hammond  Co.,  192  III.  631; 
release  by  legatee  who  was  deceived  as  to 
validity  of  will— Lutjen  v.  Lutjen  (N.  J.  Ch.) 
51  Atl.  790.  False  statement  made  in  good 
faith  that  an  arm  is  healed  "as  good  as  ever" 
If  relied  on  will  invalidate — Houston  &  T.  C. 
R.  Co.  v.  Brown  (Tex.  Civ.  App.)  69  S.  W.  661. 
Omission  to  stipulate  for  a  promise  made 
as  part  of  consideration  when  caused  by  ap- 
peals based  on  relation  of  parties  (father  to 
son)  one  of  whom  acted  without  counsel, 
held  fraud — Hearn  v.  Hearn,  24  R.  I.  328. 
Misrepresentation  is  fraud  especially  if  the 
releaser  is  illiterate  and  without  good  ad- 
visers— Indiana.  D.  &  W.  R.  Co.  v.  Fowler, 
103  111.  App.   565;   affirmed,   66   N.  E.   394. 

81.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Ben- 
nett,  63  Kan.   781,   66   Pac.   1018. 

82.  It  was  fraudulently  misread  as  includ- 
ing only  a  receipt  and  settlement  of  ex- 
penses— New  Omaha  Thomson-Houston  Elec. 
Light  Co.  V.  Rombold   (Neb.)   93  N.  W.   966. 

83.  Kidd  V.  Williams   (Ala.)   31   So.   458. 

84.  As  to  duration  permanency  and  conse- 
quences of  broken  hip — Chicago  &  N.  "W.  R. 
Co.  V.  Wilcox  (Iowa  C.  C.  A.)   116  Fed.  913. 

85.  Kirby  v.  Berguin,  15  S.  D.  444;  see, 
also,  duress  in  exacting  a  payment  as  infect- 
ing a  contemporaneous  settlement — First 
Nat.  Bank  v.  Sargent   (Neb.)  91  N.  W.  595. 

86.  Chicago  &  A.  R.  Co.  v.  Green,  114  Fed. 
676.  $125  for  wrongful  death  of  miner  in 
good  health  held  so  grossly  Inadequate  as  to 
show  fraud — Russell  v.  Dayton  Coal  &  Iron 
Co.    (Tenn.)    70  S.   W.   1. 


87.  Wolsey  v.  Price,  98  111.  App.  503. 

88.  Connor  v.  Etherldsre  (Neb.)  92  N.  W 
135. 

89.  Conversion  was  concealed  by  party  to 
a  settlement  and  the  property  was  merely 
mentioned  but  the  liability  was  not  included 
in  the  settlement — Ballard  v.  Beverldge  171 
N.  Y.  194.  ' 

90.  Three  years  too  long  delay— tBogua  v. 
Franks,  100  111.  App.  434. 

•1.  Riggs  V.  Home  Mut.  Fire  Ass'n.  61  S. 
C.  448;  or  tendered — Doyio  v.  N.  Y.,  O.  &  W.  R 
Co.,  66  App.  Div.  (N.  Y.)  398;  Hill  v.  North- 
ern Pac.  R.  Co.  (C.  C.  A.)  113  Fed.  914;  Nie- 
derhauser  v.  Detroit,  etc.,  St.  R.  Co.  (Mich  ) 
91  N.  W.   1028;  Hearn  v.  Hearn,  24  R.  I.  328. 

»a.  Life  policy — Goodson  v.  National  Ma- 
sonic Ace.  Ass'n,  91  Mo.  App.  339. 

93.  Indiana,  D.  &  W.  R.  Co.  v.  Fowler,  103 
111.  App.  565;  affirmed,  66  N.  E.  394. 

94.  Interpretation  of  words  defining 
rights  discharged,  see  ante,  {  1-A. 

95.  Executory  store-orders  for  wages  past 
due — Martin-Alexander  Lumber  Co.  v.  John- 
son, 70  Ark.  215;  oral  agreement  to  refund 
first  payment  on  land  contract  of  sale  where 
title  was  objected  to — Arnett  v.  Smith  (N.  D.) 
88  N.  W.  1037.  Adjustment  of  a  fire  loss  is 
an  accord  but  not  a  satisfaction — Vining  v. 
Franklin  Fire  Ins.  Co.,  89  Mo.  App.  311. 
Thus  an  agreement  by  an  insurer  to  pay  a 
ratable  share  of  loss  for  repairing  a  build- 
ing must  be  coupled  with  an  agreement  to 
accept — Gerhart  Realty  Co.  v.  Northern 
Assur.  Co.,  94  Mo.  App.  356.  Agreement  to 
give  notes  and  mortgage  for  a  smaller  sum 
than  those  In  dispute  was  never  fulfilled  by 
giving  the  new  obligations — Slover  v.  Rock 
(Mo.    App.)    70    S.    W.    268. 

96.  Massillon  Engine  &  Thresher  Co.  v. 
Prouty   (Neb.)   91  N.  W.  384. 

97.  Settlement  comprising  the  taking  over 
of    a    debtor    corporation's    assets    was    held 


12 


ACCORD  AND  SATISFACTION. 


A  pa}Tnent  in  consideration  of  discontinuing  does  not  necessarily  extinguish  the 
cause  of  action.^® 

The  original  liability  is  extinguished  by  a  satisfaction^  so  far  that  an  attor- 
neys Hen  against  it  can  be  enforced  only  upon  leave  to  prosecute  not^vithstand- 
ing2;  and  cannot  be  investigated  save  for  fraud  or  mistake^  or  any  item  disputed/ 
but  the  liability  of  a  covenantor  for  title,  to  a  tenant  in  common  with  the  releas- 
ing tenant  may  be  saved  by  the  terms  of  the  agreement^  and  discharge  of  co- 
debtors  under  a  judgment  compromised  as  to  one  of  their  number  may  be  in 
like  manner  avoided.*^  Unless  so  agreed  a  satisfaction  will  not  discharge  a  third 
person's  independent  liability  growing  out  of  the  same  transaction."  A  release 
operates  as  fully  as  judgment.®  Items  of  which  the  parties  were  ignorant  are 
not  included  in  a  satisfaction.® 

A  party  who  violates  it  cannot  take  any  advantage  of  a  compromise.^"  If 
two  compromises  be  of  the  same  contract,  acceptance  of  delayed  performance  in 
pavment  of  one  waives  a  delay  in  payment  of  the  other.^^  A  written  release  of 
injuries  supersedes  an  oral  satisfaction  previously  made.^^ 

§  3.  Pleading,  issues,  proofs,  evidence. — It  must  be  specially  pleaded.^^  If 
performance  rather  than  the  agreement  to  perform  was  to  constitute  the  satisfac- 
tion, it  must  be  pleaded.^*  A  tender  back  of  release  money  need  not  be  pleaded 
when  it  can  be  set  off  from  the  recovery.^^  In  Kentucky  it  was  held  against 
dissenting  opinions  that  a  tender  back  need  not  be  pleaded  where  there  were  alle- 
gations of  gross  fraud  in  obtaining  a  release.^®  Since  release  is  matter  for  de- 
fense, allegations  assailing  it  for  fraud  in  the  complaint  are  surplusage.^' 

The  jury  should  say  whether  wages  were  due^*  or  whether  act5  and  declara- 
tions of  agents  in  presence  of  parties  showed  an  acceptance  of  a  tender^®  or  whether 
a  consideration  was  of  value.^" 

Defendant  pleading  an  accord  and  satisfaction  must  prove  every  element  of 
it*^  and  mistake  must  be  proved  to  surcharge  a  settlement.--     Inadequacy  of  con- 


binding  though  not  all  of  its  accounts  re- 
ceivable had  been  collected — TV.  F.  Taylor 
Co.  V.  Baines  Grocery  Co.  (Tex.  Civ.  App.) 
72  S.  TV.    260. 

9S.  Though  it  be  not  a  specialty — In  re 
Freeman   (N.  T.)   117  Fed.  680. 

09.     Terrill  v.  Deavitt,  73  Vt.  1S8. 

1.  Holmes  v.  Leadbetter  (Mo.  App.)  69  S. 
VT.   23. 

2.  Code  Civ.  Proc.  §  66;  Doyle  v.  New 
York,  O.  &  W.  R.  Co..  66  App.  Div.  (N.  Y.) 
398. 

3.  Baldwin  v.  Central  Sav.  Bank  (Colo. 
.A.pp.)    67   Pac.   179. 

4.  Connor  v.  Etheridge  (Neb.)  92  N.  W. 
135. 

6.     McCune  v.  Scott,  18  Pa.  Super.  Ct.  263. 

6.  Hadley  v.  Bryan,   70  Ark.   197. 

7.  He  had  tortiously  induced  plaintiff  to 
accept  a  mortgage  misrepresenting  the  con- 
dition of  a  house  plaintiff  had  taken  a  con- 
vevance  in  satisfaction  of  the  mortgage — Lee 
v.  Tarplin   (Mass.)   66  N.  E.  431. 

8.  C.  &  N.  W.  R.  Co.  v.  Wilcox  (C.  C.  A.) 
116  Fed.   913. 

9.  Bloomington  Min.  Co.  v.  Brooklyn  Hy- 
gienic Ice  Co..   58  App.   Div.    (N.  Y.)    66. 

10.  Armistead  v.  Shreveport  &  R.  R.  Val. 
R.  Co..  lOS  La.  171;  McKechney  v.  Weir  (C.  C. 
A.)  118  Fed.  805. 

11.  Compromises  of  county  bonds — Dyer  v. 
Muhlenberg  County   (Ky.  C.  C,  A)    117   Fed. 


586.  It  was  held  immaterial  that  acceptance 
was  in  part  the  act  of  another  if  he  was 
party  to  the  contract. 

12.  Boggs  v.  Pacific  Steam  Laundry  Co. 
iMo.  Sup.)  70  S.  TV.  818. 

13.  Covell  V.  Carpenter  (R.  L)  51  Atl.  425. 
In  "case",  release  after  issue  joined  need  not 
be  pleaded  puis  darrein  continuance,  but  may 
be  proved  under  the  general  issue- — Papke 
V.   G.  H.   Hammond   Co.,   192  HI.   631. 

14.  Perdew  v.  Tillma.  62  Neb.  865.  Allega- 
tion that  "if  «  *  *  any  •  •  »  re- 
lease, it  •was  obtained  by  fraudulent  repre- 
sentations" is  certain  and  definite  enough  to 
plead  fraud — International  &  G.  N.  R.  Co.  v. 
Harris  (Tex.  Civ.  App.)  65  S.  W.  885;  Id. 
(Tex.    Sup.)    67   S.   W.    315. 

15.  As  in  personal  injury  cases — Hedlun 
V.  Holy  Terror  Min.  Co.  (S.  D.)   92  N.  W.  31. 

16.  McGill  V.  L.  &  N.  R.  Co..  24  Ky.  Law 
R.  1244;  and  see  L.  &  N.  R.  Co.  v.  McElroy, 
100  Ky.   153. 

17.  Hedlun  v.  Holy  Terror  Min.  Co.  (S.  D.) 
92  N.  W.   31. 

18.  Martin-Alexander  Lumber  Co.  v.  John- 
son.  70  Ark.  215. 

Perin  v.  Cathcart.  115  Iowa.  553. 
Hawkins  v.  Collins.  61  S.  C.  537. 
Board  v.  Durnell    (Colo.  App.)    66   Pac. 


19. 
20. 
21. 

1073. 
22. 


Bailey  v.  Wood,  24  Ky.  Law  R.   801. 


ACCOUNTING,  ACTIONS  FOR. 


13 


sideration  while  not  sufficient  is  admissible.^'     A  preponderance  will  prove  fraud, 
but  it  must  be  clear.^* 

ACCOUNTING,  ACTIONS  FOB. 

The  action  of  account,  whether  in  states  without  similar  chancery  relief  or  of 
enlarged  scope  in  states  giving  chancery  relief,  will  be  treated  together  with  the 
chancery  suit  for  accounting.  Agreements  between  parties  to  account  fixing  amount 
due  and  providing  for  payment,  and  book  debts  or  other  open  or  mutual  accounts, 
as  well  as  actions  thereon  will  be  found  elsewhere.^^ 

§  1.  Nature  of  remedy  and  jurisdiction  of  courts. — For  an  account  of  one 
item  the  remedy  is  at  law,^^  but  numerous  and  disputed  items,^'^  or  complicated 
accounts  and  necessity  for  discovery,^*  require  an  accounting  in  equity.  Where  five 
years  have  elapsed  since  a  mutual  settlement,^"  or  where  both  parties  have  been 
equally  negligent  in  keeping  accounts  and  have  postponed  proof  until  adequate 
evidence  is  impossible,^"  an  accounting  in  equity  will  not  be  granted.  No  account- 
able relation  subsists  between  the  real  owner  of  money  and  a  broker  who  received  it 
from  a  third  person^^  or  between  one  who  was  on  certain  future  conditions  to  re- 
ceive a  commission  and  the  person  who  was  to  pay  it,^-  but  an  accounting  may 
be  given  in  equity  to  one  who  has  a  joint  interest  by  reason  of  furnishing  monev 
for  business  with  another  in  trust  relations,  though  the  arrangement  is  not  a  part- 
nership.^^ A  court  of  equity  may  order  an  accounting  to  enforce  contribution,^* 
or  to  determine  the  amount  due  an  employe  working  for  a  percentage  of  the  net 
profits  of  the  business,^^  but  not  to  compel  an  attorney  to  pay  over  money  collected 
on  a  claim.^"     Accounting  cannot  be  had  in  courts  of  inferior  jurisdiction.^^ 


23.  Dorsett  v.  Clement — Ross  Mfg.  Co.  (N. 
C.)    42  S.  E.    612. 

24.  C.  &  N.  W.  R.  Co.  V.  Wilcox  (C.  C.  A.) 
116  Fed.  913.  Evidence  held  not  to  show  an 
accord  and  satisfaction  where  a  payment 
tendered  as  in  full  was  accepted  under  pro- 
test that  it  was  not  a  discharge — Daugherty 
V.  Herndon  (Tex.  Civ.  App.)  65  S.  "W.  891. 
Evidence  not  sufficient  where  a  check  was 
marked  "in  full"  but  testimony  was  conflict- 
ing whether  it  was  put  on  before  or  after  the 
check  was  cashed — Blodgett  v.  Vogel  (Mich.) 
90  N.  W.  277.  Held  insufficient  that  check 
was  sent  without  condition  but  with  coun- 
terclaim sufficient  to  balance  account,  which 
counterclaim  was  rejected  and  payment  of 
the  balance  immediately  demanded — Fremont 
Foundry  &  Mach.  Co.  v.  Norton  (Neb.)  92  N. 
W.   1058. 

Evidence  of  fraud — L.  &  N.  R.  Co.  v. 
Carter,  23  Ky.  Law  R.  2017;  of  duress — 
Boydan  v.  Haberstumpf  (Mich.)  88  N.  W. 
386;  of  mental  incompetency  of  party — Cun- 
dell  V.  Hoswell  (R.  I.)  51  Atl.  426;  L.  &  N. 
R.  Co.  V.  Carter,  supra;  sufficiency  of  evi- 
dence of  fraud  in  procuring  release — Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Bennett,  63  Kan.  781, 
66  Pac.  1018;  International  &  G.  N.  R.  Co.  v. 
Harris  (Tex.  Sup.)  67  S.  W.  315;  M.,  K.  & 
T.  R.  Co.  V.  Smith  (Tex.  Civ.  App.)  68  S.  "W. 
643;  Shook  v.  Illinois  C.  R.  Co.  (C.  C.  A.)  115 
Fed.  57;  Fivey  v.  P.  R.  Co.,  67  N.  J.  Law, 
627;  sufficiency  of  pleadings  and  proof  to 
show  release — Kehoe  v.  Patton  (R.  I.)  50  Atl. 
655.  Evidence  tending  to  show  imposition 
on  an  Ignorant  releasor  held  sufficient  for  the 
Jury — Dorsett  v.  Clement-Ross  Mfg.  Co.  (N. 
C.)  42  S.  E.  612;  written  release  not  overcome 
by  testimony  of  contemporaneous  oral  agree- 
ment— Ogden  V.  Philadelphia  &  W.  C.  Tract. 


Co.,  202  Pa.  4S0;  duress  in  a  settlement  proved 
by  fhe  fact  that  it  entered  into  a  payment 
exacted  at  the  same  time — First  Nat.  Bank 
V.  Sargent  (Neb.)  91  N.  W.  595;  presump- 
tion that  note  was  in  full  settlement  not  re- 
butted— Danes  v.  Slitor  (Iowa)  91  N.  W.  817. 
Claim  of  excessive  amount  settled  through 
agents  and  not  communicated  to  principal 
held  sufficient  to  go  to  jury  on  issue  of 
fraud — Williamson  v.  North  Pac.  Lumber 
Co.  (Or.)  70  Pac.  387.  Evidence  held  insuf- 
ficient to  impeach  a  settlement  because  of 
insanity  of  the  injured  party  who  did  not 
complain  for  a  long  time — L.  S.  &  M.  S.  R.  Co 
v.  Vogelson,   23  Ohio  Cir.  Ct.  R.  361. 

25.  Accounts    Stated,    and    open   Accounts. 

26.  McCormick  .v.    Page,    96    111.    App.    447. 

27.  Fenno  v.  Primrose.  116  Fed.  49. 

28.  A  sheriff  cannot  have  an  accounting 
from  his  deputy  without  showing  circum- 
stances for  discovery  or  complicated  ac- 
counts— White  v.  Cook,  51  W.  Va.  201. 

29.  Nevian  v.  New  Albany  Ice  Co.  (Ky. 
App.)   68  S.  W.  647. 

30.  Garnett  v.  Wills,  24  Ky.  Law  R.  617. 
Twenty  years'  delay  after  abandonment  of 
the  contract  by  the  other  party  and  notice 
thereof,  and  death  of  parties  and  loss  of 
documentary  evidence  bars  relief — Tozier  v. 
Brown,   202  Pa.   359. 

31.  McKay  v.  Hudson.  118  Fed.  919. 

32.  Loan  brokerage — Moore  v.  Hammond 
(Or.)    110  Fed.   897. 

33.  Harvey  v.  Sellers,  115  Fed.  757. 

34.  Northern  Trust  Co.  v.  Marsh.  98  111 
App.  596. 

35.  Lee  V.  Washburn,  37  Misc.  (N  Y  ) 
311.  ^  ' 

36.  Pfau  V.  Fullenwider,  102  111.  App.   499, 

37.  City  court  of  New  York — Gorse  v 
Lynch,  36  Misc.   (N.  Y.)   150. 


14 


ACCOUNTIXG,  ACTIONS  FOR. 


§  2.  Persons  liable  and  entitled  to  accounting. — Accoimting  between  persons 
in  particular  relations  will  be  foimd  in  topics  treating  of  those  relations.  The 
right  to  an  accounting  pertains  to  certain  relations  of  a  fiduciary  or  representative 
nature  such  as  agency;  trusteeships;  partnerships.*^  Persons  jointly  interested^* 
in  property  or  profits  of  sale  of  land,  as  co-tenants,*"  may  have  an  accounting. 
Use  of  a  wife's  name  to  avoid  her  husband's  creditors  will  not  deprive  her  of 
accounting.*^ 

§  3.  Procedure  before  reference  or  witliout  reference. — General  questions  of 
procedure  in  matters  not  peculiar  to  this  remedy  are  treated  elsewhere.  A  suit  or 
action  for  accounting  may  be  joined  with  or  made  incidental  to  other  suits  or  ac- 
tions under  proper  circumstances.*^  Annexation  of  copies  of  accoimts  to  plead- 
ings is  sometimes  necessary  or  proper.** 

Parties. — Complainants  asserting  distinct  rights  generally  cannot  unite  in  the 
bill;**  the  rule  applies  to  heirs  and  administrator  of  an  estate  in  an  accounting 
of  personal  estate  or  rents  and  profits  of  land.*'  Receipt  of  part  of  corporate 
funds,  or  connivance  at  diversion  thereof,  renders  one  a  proper  party  to  an  ac- 
counting sought  by  a  corporate  creditor.*^  A  son,  who  secured  his  father's  debt 
by  mortgage,  is  a  necessary  party  to  an  accounting  by  the  father  against  the  cred- 
itor for  excess  of  money  received  on  payment.*^  That  brokers  have  dealt  with 
one  who  received  funds  from  another  for  secret  speculation  in  stock  will  not  make 
them  parties  to  a  suit  for  accounting  by  the  owner  of  the  funds  against  the  other.** 
Improper  joinder  of  parties  defendant  authorizes  dismissal  only,  not  judgment 
for  all  defendants.*" 

Pleading  and  evidence. — A  bill  against  two  partnerships  is  multifarious  though 
one  defendant  is  a  common  partner.^"  The  complaint  must  show  a  contract  to 
pay,  or  a  breach  thereof,  or  existence  of  fiduciary  or  partnership  relations,^^  and 
an  allegation  of  partnership  relations  which  may  as  well  be  construed  as  agency 
is  insufficient."^  Defendant  is  entitled,  on  demand,  to  a  list  of  the  items  with- 
out regard  to  the  form  of  action.^*  An  account  of  profits  cannot  be  taken  where 
it  is  not  shown  what  goods  were  sold."  A  bill  for  accounting  must  allege  dis- 
posal of  the  funds  received  by  defendant,  receipt  of  benefits  by  him  from  the 
funds,  and  any  excess  of  authority  he  may  have  employed. ^^  Defendant  need  not 
answer  the  bill  fully  if  he  denies  existence  of  the  relation  on  which  the  dutv  to 
account  is  based."  A  cross-bill  may  be  filed  after  the  report  of  master.""  The 
party  seeking  to  impeach  an  accounting  for  fraud  must  set  out  the  particular  facts 
relied  on." 


38.  See  Ag-ency;  Brokers;  Factors;  Es- 
tates of  Decedents;  Trusts;  Partnership  and 
the  like. 

39.  Bradley  v.  Jennings,  201  Pa.  473. 

40.  Regan  v.  Regan,  192  111.  589.  One  ten- 
ant In  common  may  require  another  In  pos- 
session to  account — Keller  v.  Lamb,  202  Pa, 
412. 

41.  Bradly  v.  Jennings.  201  Pa,  473. 

42.  See  Causes  of  Action  and  defenses  as 
to  joinder.  Accounting  as  proper  Incidental 
relief  see  titles  like  Copyright;  Creditor's 
Suits;  and  other  titles  treating  of  equitable 
remedies. 

43.  See  Equity  (Equity  Practice) ;  Plead- 
ing. 

44.  Fletcher  Eq.  PI.  &  Pr.,  S  49;  Clark  v. 
Holbrook.  146  Mass.  366. 

45.  Scott  V.  Caloit.   3  How.    (Miss.)    148. 
4«.     Schaake   v.   Eagle   Automatic   Can   Co. 

135  Cal.  472.  67  Pac.  759. 


47.  Canon  v.  Ballard,  62  N.  J.  Eq.  383. 

48.  McKay  v.  Hudson.   118   Fed.   919. 

49.  Schaake  v.  Eagle  Automatic  Can  Co., 
135   Cal.   472.  67  Pac.    759. 

50.  Fletcher,  Eq.  PI.  &  Pr.,  f  113;  Bovaird 
V.  Seyfang,  200  Pa,  261;  Cannon  v.  Ballard,  62 
N.  J.  Eq.  383:  order  reversed.  52  Atl.  352. 

51.  Rlvelson  v.  Silverstein,  72  N.  T.  Sudd. 
594. 

52.  Conger  v.  Judson,  69  App.  Div.  (NT) 
121. 

63.  Ala.  Code,  5  3290;  Morrisette  v.  Wood, 
128  Ala.  505. 

54.  Cawley  v.  Cawley  (Mass.)  63  N.  E. 
1070. 

55.  Mere  allegation  that  money  wag 
placed  In  defendant's  hands  Is  Insufficient — 
Thompson  v.  Snyder.   113  Fed.   531. 

56.  Fletcher  Eq.   PI.   &  Pr..   §   294. 

57.  Sowles  V.   Hall.    73  Vt.   55. 

58.  Anderson  v.  Anderson  (Utah)  70  Pac 
608. 


ACCOUNTS  STATED  AND  OPEN  ACCOUNTS. 


15 


Judgment  or  decree. — It  seems  a  decree  to  account  is  not  generally  enrolled 
unless  the  accounting  was  only  part  of  the  relief  given.^^  The  judgment  to  ac- 
count should  require  it  to  be  done  before  the  court  or  referee.®" 

§  4.  Reference  and  proceedings  thereon. — Particular  matters  relating  to  ref- 
erence to  master  or  commissioners  in  chancery,®^  or  to  referees®^  will  be  found  un- 
der other  topics.  Eeference  of  the  whole  cause  to  a  master  is  becoming  the  more 
tommon  practice.®^  An  accounting  of  surplus  profits  due  the  state  from  a  rail- 
road company  is  properly  referred  to  a  master.®*  Before  ordering  a  reference  the 
court  should  determine  the  right  to  account  if  it  is  made  an  issue.®^ 

Stating  the  account;  items. — An  accounting  may  include  a  note  given  to  the 
accounting  payor  as  security  though  his  liability  thereon  has  not  been  determined.®' 
A  partner  may  be  credited  for  the  excess  paid  for  his  interest  in  property  j)ur- 
chased  by  a  co-partner  by  reason  of  the  fraud  of  the  latter.®^ 

§  5,  Proceedings  on  coming  in  of  report. — The  proceedings  after  reference 
to  an  auditor  in  an  action  of  account  should  be  governed  by  rules  of  trial  before 
the  court  and  not  by  the  strict  rules  of  jury  trials.®®  Judgment  should  not  be  given 
against  non-residents  who  sold  their  interests  before  debts  were  contracted,  but 
against  the  purchasers.®^  An  account  judgment  giving  a  certain  amount  of  ac- 
crued income  to  a  beneficiary  under  a  testamentary  trust  is  not  conclusive  in  a 
subsequent  action  to  dispose  of  income  accruing  after  his  death.'^" 

ACCOUNTS  STATED  AND  OPEN  ACCOUNTS. 

§  1.  Nature  and  elements  of  the  several  Tcinds  of  accounts. — An  account  stat- 
ed when  itemized  must  show  the  relation  of  debtor  and  creditor/^  but  may  be 
made  orally/^  and  the  assent  of  the  party  to  be  charged  only,  is  necessary."  A 
mutual  agreement  as  to  the  accuracy  of  the  statement  of  an  attorney  mutually 
employed  to  calculate  principal  and  interest  on  a  written  contract  requiring  pay- 
ment in  installments,^*  or  \]iq  estimate  of  a  water  commissioner  as  to  value  of 
work  done  under  a  public  contract  together  veith  the  contractor's  receipt  for  pay- 
ment,''^ or  statements  of  accounts  between  corresponding  banks  mutually  acknowl- 
edged to  be  correct,'®  or  the  balance  shoMTi  by  a  bank  book  and  canceled  checks,^' 
or  statements  of  account  received  by  a  bank  depositor  without  objection  for  an 
unreasonable  length  of  time,'^®  constitute  an  account  stated;  but  a  statement  of 
amount  due  a  decedent  made  by  her  husband  and  a  reply  by  the  debtor  promising 
payment,''®  or  a  mere  request  for  extension  of  time  where  no  account  is  presented, 
and  no  disputed  items  exist,®®  is  insufficient  to  establish  one.     Fair  settlement  of 


59.  Fletcher  Eq.  PI.  &  Pr.,  §  729. 

60.  A  judgment  merely  directing  defend- 
ant to  account  is  insufficient — Silllman  v. 
Smith,   72   App.   Dlv.    (N.   Y.)    621. 

61.  Masters  in  Chancery. 

62.  Reference. 

63.  Fletcher  Eq.  PI.  &  Pr.  §  58^;  Kimberly 
V.  Arms,   129  U.  S.   512,   32  L.   Ed.   764. 

64.  Surplus  profits  due  under  Loc.  Laws, 
1847,  p.  77;  Terre  Haute  &  I.  R.  Co.  v.  State 
(Ind.)   65  N.  B.  401. 

65.  Jordan  v.  Underhill,  71  App.  Dlv.  (N. 
T.)   559. 

66.  Moss  V.  Odell,  134  Cal.  464,  66  Pac.  581. 

67.  Richards  v.  Eraser,  136  Cal.  460,  69 
Pac.  83. 

68.  Pardrldge  v.  Ryan,  13  4  111.  247. 
60.  Strang  v.  Thomas,  114  Wis.  599. 
70.     Rudd  V.  Cornell,  171  N.  T.  114. 


71.  Acts  N.  C.  1897,  c.  480;  Knight  v.  Tay- 
lor  (N.   C.)    42  S.  E.  537. 

72.  Civ.     Code    Cal.,    §    1622;    Converse    v. 
Scott   (Cal.)    70   Pac.   13. 

73.  Leiser  v.    McDowell,    69   App.   Div.    (N. 
T.)  444. 

74.  Krueger  v.  Dodge,  15  S.  D.   159. 

75.  McCormick  v.  City  of  St.  Louis,  166  Mo. 
315. 

76.  Louisville    Banking    Co.    v.    Asher,    23 
Ky.  Law  R.   1180. 

77.  Kenneth  Inv.  Co.  v.  National  Bank  of 
Republic   (Mo.  App.)   70  S.  W.  173. 

78.  Nodine    v.    First    Nat.    Bank    (Or.)     68 
Pac.    1109. 

79.  Kauffmann   v.    Judah    (Sup.)    79   N.    T. 
Supp.   494. 

SO.     Woodriff  V.    Hunter,    65   App.   Div.    (N. 
T.  404. 


]^5  ACCOUNTS  STATED  AND  OPEN  ACCOUNTS. 

a  mrming  account,  by  consideration  of  all  the  items  therein,  concludes  both  par- 
ties.®^ A  sale  of  personalty  for  an  agreed  price  payable  at  a  certain  or  future 
time  tends  to  uphold  a  count  on  account  stated.^^ 

Acceptance  of  an  account  stated  estops  denial  of  its  correctness  except  for 
fraud  or  mistake,^^  and  may  be  show-n  by  payment  of  part  of  an  account  presented.®* 
Xo  objection  can  be  made  to  an  account  rendered  five  months  after  settlement/^ 
but  unless  special  damages  vrill  result  to  the  bank,  a  depositor  may  question  an 
account  of  deposit  retained  without  objection  for  an  unreasonable  length  of  time.®* 

A  credit  entered  by  one  party  "vrithout  consent  of  the  other,  vrho  always  de- 
nied his  liability,  will  not  make  a  contested  account  mutual.*^  An  account  claim- 
ing a  certain  sum  at  or  about  a  certain  time  is  an  open  account.®^ 

§  2.  Binding  effect,  righis  and  liahilities. — A  liquidating  partner  is  not 
bound  personally,  as  for  an  account  stated,  by  receipt  of  a  statement  of  the  part- 
nership account  erroneously  including  a  personal  debt  of  a  retiring  partner,  which 
he  had  no  reason  to  believe  was  considered  a  firm  liability.®^  A  settled  account 
may  be  impeached  only  for  fraud,  mistake  or  omission,^"  and  settlement  admits  the 
balance  as  a  new  principal  unalterable  except  on  proof  of  mistake  or  fraud.®^  A 
settlement  is  not  presumed  to  include  items  not  due.®^  Failure  of  an  adminis- 
trator to  object  to  an  account  stated  which  is  presented  against  the  estate  will  not 
excuse  establishment  of  the  claim  in  the  usual  way.®' 

§  3.  Remedies  on  account  stated.^* — All  prior  dealings  are  merged  in  an 
action  on  an  account  stated.®^  Under  proper  circumstances  equity  will  reform 
an  account  stated  for  mistake  of  law.^^ 

Pleading. — Allegation  and  proof  of  an  alleged  statement  of  account  merely 
supports  a  balance  due  in  an  action  not  technically  on  an  account  stated.®^  A 
stated  account  must  be  verified  and  the  petition  must  allege  its  correctness.^®  Al- 
legations of  statements  made  to  a  depositor  by  a  bank  are  sufficient,  after  verdict, 
as  to  an  account  stated.^®  Evidence  of  errors  in  a  statement  of  account  can- 
not be  given  by  a  plaintiff  who  did  not  plead  them.^  A  bill  to  correct  a  settled 
account  for  mistake  must  allege  the  mistake  distinctly  and  give  the  circumstances.- 

Evidence  and  questions  of  fact.^ — An  account  stated  is  prima  facie  correct,* 
and  if  it  be  assailed  for  a  specific  vice  which  is  not  proved  it  stands.^    The  pre- 


81.  Fowler  v.  Robinson,  98  111.  App.  262. 

82.  Moore  v.  Crosthwalt   (Ala.)    33   So.   28. 

83.  Fitzg-erald  v.  First  Nat.  Bank  (C.  C. 
A.)   114  Fed.  474. 

Admission  of  the  debt  and  a  promise  to  pay 
it  sufficiently  shows  the  account  stated — 
Frothingham  v.  Satterlee,  70  App.  Div.  (N. 
Y.)    613. 

Acceptance  together  with  subsequent  state- 
ments on  the  same  basis  sufficiently  show 
the    account   stated   to   the   extent   of   estab- 


613;   Rand  v.   Whipple,   71    App.    Div.    (N.   Y.) 
62. 

91.  In  re  Peters'  Estate,  20  Pa,  Super.  Ct. 
223. 

92.  Beebe  v.  Smith.  194  111.  634. 

93.  Withers  v.  Sandlin  CFla.)  32  So.  829. 

94.  Three  years'  limitation  does  not  apply 
— Moore  v.  Crosthwalt  (Ala.)  33  So.  28;  Col- 
umbia Brewing  Co.  v.  Berney,  90  Mo.  App.  96. 

95.  Columbia    Brewing   Co.    v.   Berney,    90 

lishirig  a   trust.-Rand   v.   Whipple,    71   ^VP- '.'^le^^louivme    Banking    Co.    v.    Aaher,    23 

I:   ^^     ^^\     \.  ^  o^,,  ^r,       ^  r.  ..    \  Ky.  Law  R.  1180. 

84.  Seal  Lock  Co.  v.  Chicago  Mfg.  &  OptI-        «-      t  ^j=^,.  ,r    xr„T-.«^„n     co    *^       T^^        -kt 
cal  Co..   98   111.  App.   637.  ^  ^  ^       |  ^9..^^  Leiser  v.    McDowell.    69   App.   Div.    uV. 

85.  Poppers  v.  Schoenfeld.  97  111.  App.  477.  !      93.     ^yers  v.  First  Presbyterian  Church  of 


86.  Kenneth  Inv.  Co.  v.  National  Bank  of 
Republic  (Mo.  App.)   70  S.  "W.  173. 

87.  Bay  City  Iron  Co.  v.  Emery,  128  Mich. 
506. 

88.  Hartsell  v.  Masterson,  132  Ala,  275. 

89.  National  Cycle  Mfg.  Co.  v.  San  Diego 
Cycle  Co..  135  Cal.  335,   67  Pac.  280. 

90.  Batson  v.  Findley  (TV.  Va.)  43  S.  E. 
142;  assent  to  accounts  rendered  so  as  to 
make  them  stated,  see  supra,  §  1;  Fitzg-erald 
v.  First  Nat.  Bank  (C.  C.  A.)  114  Fed.  474; 
Frothingham  v.  Satterlee.  70  App.  Div.  (N.  Y.) 


Perry    (Okl.)    69   Pac.    874. 

99.  Nodine  v.  First  Nat.  Bank  (Or.)  68 
Pac.  1109. 

1.  ■^''onderly  v.  Christian.  91  Mo.  App.  5  58. 

2.  Batson  v.  Findley  (VT.  Vt.I   43  S.  E'.T12. 

3.  Sufficency  of  proof — "Withers  v.  Sand- 
lin (Fla.)  32  So.  S29:  Dougan  v.  Dunham 
(Ga.)  42  S.  E.  390:  evidence  in  action — Ar- 
nold V.  Cason.  95  Mo.  App.  426.  69  S.  W.  34. 

4.  Wonderly  v.  Christian.  91  Mo.  App.  15S. 

5.  Duress-Comer  v.  Illinois  Car  &  Eq.  Co.. 
108   La,   179. 


ACKNOWLEDGMENTS. 


17 


sumption  that  a  certain  item  was  included  is  overcome  by  proof  that  it  was  not 
due.®  Failure  of  plaintiff  to  obtain  knowledge  of  a  statement  of  the  account  for 
some  time  after  it  was  made  is  not  a  failure  of  proof  of  an  account  stated.''  The 
burden  of  proof  is  on  a  depositor  to  show  that  checks  rendered  on  an  account  by 
the  bank  are  forged.^  An  attorney  suing  his  client  for  services  on  account  stated 
may  be  examined  as  to  the  items.^  Corroborative  testimony  as  to  the  balance 
due  may  be  given  by  a  stenographer  who  took  a  memorandum  of  the  agreement 
in  presence  of  both  parties.^"  An  ex  parte  affidavit  verifying  an  account  stated 
will  not  establish  its  correctness.^^  Proof  of  an  agreement  between  parties  to 
settle  and  that  a  debt  owing  to  one  from  a  third  person  should  be  assigned",  to  the 
other  to  which  the  debtor  did  not  object,  shows  an  account  stated.^^ 

The  effect  of  a  receipt  approving  an  account  stated,  if  in  issue,  is  a  ques- 
tion of  fact  for  the  referee.  ^^ 

§  4.  Remedies  on  open  accounts}^ — The  statute  of  limitations  will  apply 
to  actions  on  open  accounts,^^  beginning  with  the  last  item  where  the  full  amount 
is  sought.^^  A  running  and  continuous  account  is  not  barred,^"  nor  is  an  open 
mutual  account,^^  until  accrual  of  the  period  after  the  last  item  on  either  side,^® 
but  an  item  for  board  will  not  prevent  bar  of  an  action  on  a  note,  there  being 
no  mutuality,^"  and  an  unratified  payment  of  one  of  the  last  items  will  not  begin 
the  period. ^^  A  plea  of  final  settlement  in  an  action  on  an  open  account  is  a 
complete  bar  where  plaintiff  fails  to  sustain  his  reply  averring  that  defendant's 
statement  rendered  was  not  final  but  subject  to  correction."  A  bill  of  particu- 
lars referred  to  in,  and  filed  with,  a  petition  in  an  action  on  a  mutual  account 
will  warrant  admission  of  evidence  of  mutual  dealings  between  the  parties  on  mu- 
tual credit.^^ 

ACKN0WLEDGMENTS.24 

§  1.  Nature,  office  and  necessity. — The  officers'  act  is  minis1;erial.^'  As  be- 
tween the  parties  it  is  not  necessary-®  except  to  make  the  deed  admissible  in  evi- 
dence-^ or  entitle  the  parties  to  record  it,^^  or  to  convey  a  married  woman's  sep- 
arate estate^^  or  to  cut  off  dower  homestead  or  similar  rights.^" 


e.     Beebe  v.  Smith,  194  111.   634. 

7.  Lei^r  v.  McDowell,  69  App.  Div.  (N. 
Y.)   444. 

8.  Kenneth  Inv.  Co.  v.  National  Bank  of 
Republic  (Mo.  App.)   70  S.  W.  173. 

9.  McLaughlin  v.  U.  S.  (U.  S.)  36  Ct.  CI. 
138. 

10.  Converse  v.  Scott  (Cal.)  70  Pac.  13. 

11.  Withers  v.  Sandlin   (Fla.)   32  So.  829. 
In      Tennessee      a      partnership      account 

brought  from  another  county  can  not  be 
verified  by  a  book  keeper's  affidavit — Shan- 
non's Code,  §  5561;  Foster  v.  Scott  County, 
107    Tenn.    693. 

12.  Forbes  v.  Wheeler,  39  Misc.  (N.  T.) 
538. 

13.  Frothlngham  v.  Satterlee,  70  App.  DIv. 
(N.  Y.)    613. 

14.  Sufficiency  of  pleading  on  open  ac- 
count— Hartsell  v.  Masterson  (Ala.)  31  So. 
616. 

15.  Four  years  will  bar  an  action — Mizer 
V.  Bmigh  (Neb.)  88  N.  W.  479. 

16.  Carpenter  v.  Plagge.   192  111.  82. 

17.  Moore  v.  Renick  (Mo.  App.)  68  S.  W. 
936. 

IS.  Lancieri  v.  Kansas  City  Imp.  St. 
Sprinkling  Co.  (Mo.  App.)  69  S.  W.  29. 


19.  Haffner  v.   Scheunck,   49  App.  Div.   (N. 
Y.)   193;  affirmed  168  N.  Y.  649. 

20.  Beach  v.  Bennett  (Colo.  App.)   66  Pac. 


567. 
21 


158. 
23. 


Rickard  v.  Geach  (Nev.)  69  Pac.  861. 
Wonderly    v.    Christian,    91    Mo.    App. 

"A  reasonable  time"  is  a  matter  of  law 
when  the  facts  are  clear — P.  H.  McLaughlin 
&  Co.  V.  U.  S.  (U.  S.)   37  Ct.  CI.  150. 

24.  Acknowledgements  as  admissions  es- 
toppels, ratification,  adoption;  recognition  or 
waiver;  see  Evidence;  Estoppel;  Agency; 
Partnership;  Limitations  of  Actions;  Ad- 
verse Possession;   Marriage;  Bastards. 

Acts  and  elements  of  execution  of  Instru- 
ments other  than  acknowledgments,  see 
Names,  Signatures  and  Seals;  Contracts; 
Deeds;  Mortgages;  Chattel  Mortgages;  Wills 
and  the  like. 

25.  Rev.  St.  §  4106;  Read  v.  Toledo  Loan 
Co..  13-23  O.  C.  C.  25. 

26.  Morse  v.  Morrison  (Colo.  App.)  66  Pac. 
169;  Messenger  v.  Peter.  8  Detroit  Leg.  N. 
(Mich.)    867.    88    N.    W.    209. 

27.  An  acknowledgment  to  an  official 
bond  admits  to  be  received  in  evidence  like 


Cur.  Law  2. 


18 


ACKNOWLEDGMENTS. 


Merely  because  some  household  goods  are  included  but  which  do  not  appear 
to  have  been  used  as  such,  a  chattel  mortgage  is  not  one  "of  household  goods" 
which  must  be  acknowledged.^^ 

§  2.  Officers  who  may  take. — Justices  of  the  peace  may  ordinarily  take  ac- 
knowledgments.^- A  consul  general's  deputy  may  do  so.^^  The  officer  need  not 
be  disinterested  it  is  held  unless  the  statute  so  requires,^*  but  a  party  to  the  in- 
strument is  disqualified.^^  A  stockholder  in  a  corporate  party  but  not  a  non-stock- 
holding officer  or  an  agent  or  attorney  of  either  party,  has  a  disqualifying  inter- 
est.^^  The  corporation's  interest  need  be  only  partial.^^  Foreign  officers  enumerat- 
ed by  statute  may  take  them.^*  The  power  of  a  foreign  notary  does  not  neces- 
sarily depend  on  the  authority  given  by  his  OAvn  state.^^  An  officer  empowered  to 
take  acknowledgments  may  sometimes  act  beyond  the  territory  of  his  ordinary 
bailiwick  or  authority,*"  but  a  notary  cannot  act  outside  the  place  for  which  he 
is  commissioned."  A  corporate  chattel  mortgagor  "resides"  wliere  its  place  of 
business  is  and  should  acknowledge  the  mortgage  before  a  justice  of  the  peace 
there.*^ 


an  acknowledged  conveyance — Ramsay's  Es- 
tate V.  People,  97  111.  App.  283. 

Certified  copy  of  deed  record  inadmissible 
If  lacking  legal  acknowledgment — Swafford 
V.  Herd's  Adm'r.,  25  Ky.  Law  R.  1556. 

A  foreign  notary's  certificate  under  seal 
Is  prima  facie  evidence  of  execution  of  an 
official  bond — Ramsay's  Estate  v.  People  (111.) 
64  N.  E.   555. 

Officer  was  financially  interested  hence  not 
admissible — First  Nat.  Bank  v.  Citizen's  State 
Bank   C^'yo.)   70  Pac.  726. 

2S.  The  notary  must  affix  his  seal  (Koch 
V.  TVest  [Iowa]  92  N.  W.  663)  unless  the  law 
at  the  time  does  not  require  It — Westfeldt  v. 
Adams   (N.   C.)    42, S.  E.  823. 

The  acknowledging  officer  must  not  be  a 
party — Hunton   v.    "U'ood    (Va.)    43    S.    B.    186. 

A  tax  deed  must  be  acknowledged  and 
then  recorded — Leftwieh  v.  Richmond,  4  Va. 
Sup.  Ct.  128.  40  S.  E.  651. 

Unless  properly  acknowledged  a  record 
will  not  protect  a  mortgage  lien — Cumber- 
land B.  &  L.  Ass'n  V.  Sparks  (C.  C.  A.)  Ill 
Fed.  647. 

29.  If  acknowledged  before  an  Incompe- 
tent notary  does  not  pass  under  the  laws  of 
Florida — Evans  v.  Dickenson  (C.  C.  A.)  114 
ved.    284. 

In  New  Jersey  her  contract  to  convey  it 
must  be  separately  acknowledged — Schwarz 
V.  Regan  (N.  J.  Ch.)  53  Atl.  1086. 

30.  Ogden  B.  &  L.  Ass'n  v.  Mensch,  196  111. 
554;  Buettgenbach  v.  Gerbig  (Neb.)  90  N.  "W. 
654;  Rowles  v.  Reichenbach  (Neb.)  90  N.  W. 
943.  Unless  an  agreement  to  pass  the  home- 
stead be  testamentary  in  character,  when  it 
need  not  be  acknowledged — Teske  v.  Ditt- 
berner  (Neb.)  91  N.  W.  181,  or  be  a  purchase- 
money  mortgage — Irwin  v.  Gay  (Neb.)  91  N. 
W.  197;  Goodheart  v.  Goodheart  (N.  J.  Ch.) 
53   Atl.    135. 

Both  husband  and  wife  must  join  to  alien 
a  homestead — Blumer  v.  Allbright  (Neb.)  89 
N.  W.  809;  Hedbloom  v.  Pierson  (Neb.)  90 
N.  "W.  218. 

Estoppel  will  not  operate  in  lieu  of  ac- 
knowledgment— Davis  v.  Thomas  (Neb.)  92 
N.  yv.  187. 

If  the  husband  die  in  possession  of  the 
homestead,  an  improperly  acknowledged  con- 


tract to  convey  It  is  not  enforceable — Solt  v. 
Anderson   (Neb.)    93  N.   TV.    205. 

31.  2  Gen.  St.,  p.  2111.  §  41;  Dunham  v. 
Cramer  (N.  J.  Ch.)  51  Atl.  1011. 

32.  Tiffany,  Real  Prop.,  §  405;  but  in  1852 
a  married  woman's  deed  must  have  been  ac- 
knowledged before  a  court,  etc.,  with  seal 
(Rev.  St.  1845,  c.  32.  §§  35-39)  hence  the 
curtesy  only  passed  under  justice's  acknowl- 
edgment— Linville  v.  Greer,  165  Mo.  380. 

33.  Stewart  v.  Linton   (Pa.)   53  Atl.  744. 

34.  Rev.  St.,  §  4106:  Stockholder  taking 
corporation's  acknowledgment — Read  v.  To- 
ledo Loan  Co.,  13-23  O.  C.  C.  25. 

35.  Meckel  Bros.  Co.  v.  DeWitt,  13-23  O.  C. 
C.  174;  grantor — Leftwieh  v.  City  of  Rich- 
mond, 4  Va.  Sup.  Ct.  128,  40  S.  E.  651;  grantee 
— Hunton  v.  Wood  (Va.)  43  S.  E.  186;  owner- 
ship of  part  of  debt  secured  by  mortgage — 
Hedbloom    v.    Pierson    (Neb.)    90    N.    W.    218. 

36.  Ogden  B.  &  L.  Ass'n  v.  Mensch,  196 
111.  554;  but  see  s.  c.  99  111.  App.  67  and  cf. ; 
Read  v.  Toledo  Loan  Co.  supra. 

Stockholding  cashier  of  mortgagee  bank  is 
disqualified — First  Nat.  Bank  v.  Citizens' 
State  Bank   (Wyo.)  70  Pac.  726. 

Assistant  cashier  of  bank  when  a  stock- 
holder is  disqualified — TN^ilson  v.  Griess 
(Neb.)    90  N.  W.   866. 

37.  Wilson  V.  Griess  (Neb.)   90  N.  "W.  866. 

38.  In  Georgia  prior  to  Act  Dec.  18,  1893.  a 
foreign  "clerk"  of  courts'  acknowledgment 
was  null.  The  court  or  judge  should  have 
acted — Code  1882,  §  2708;  Crummey  v.  Bent- 
ley,    114    Ga.    746. 

39.  In  Illinois  an  official  bond  is  properly 
acknowledged  before  a  foreign  notary  if  he 
certifies  it  under  his  seal,  whether  or  not  his 
own  state  authorizes  him  to  take  acknowl- 
edgments of  sealed  instruments;  Hurd's  Rev. 
St.,  c.  103.  §  1,  c.  30,  §  20 — Ramsay's  Estate  v. 
People.   97   111.   App.   296. 

40.  Laws  1850-51.  p.-  88,  art.  3,  §  6.  Laws 
1852-53,  p.  244.  art.  2,  §  1;  Mayor  of  Kansas 
City  may  take  anywhere  in  county — Linville 
V.  Greer.   165   Mo.   380. 

41.  In  and  for  certain  county — McClellan's 
Dig.  (Fla.)  791,  §  1;  Evans  v.  Dickenson, 
114   Fed.    284. 

42.  See  statute — Gilbert  v.  Sprague,  196 
111.  444. 


ACKNOWLEDGMENTS. 


19 


§  3.  Persons  who  may  make. — Generally  speaking  each  granting  party  in- 
cluding husbands  or  wives  must  acknowledge  for  himself  or  herself.  A  corpora- 
tion must  do  so  by  its  president,  secretary  or  other  proper  officer.  An  attorney 
in  fact  to  convey  land  may  do  so  in  his  own  name  for  his  principal.*^ 

§  4.  Taking  acknowledgment. — If  the  grantor  is  not  personally  known  to 
the  officer  he  should  ordinarily  be  identified.**  It  is  immaterial  that  the  wife's 
separate  examination  was  in  presence  of  the  grantee  of  her  separate  estate.** 

§  5.  Certificate  of  acknowledgment.'^^ — The  identity  of  the  grantor  must  be 
shown.*^  One  to  a  wife's  deed  need  not  state  that  she  executed  it  as  a  party.*^ 
And  it  need  not  state  in  the  language  of  the  statute  that  when  privately  examined 
she  freely  and  voluntarily  made  the  deed*^  at  least  where  the  statute  so  reads  that 
it  is  satisfied  by  the  taking  of  her  examination  privately  without  reciting  it.**" 
The  statutes  of  some  states  require  this  recital.*^  Grammatical  errors  are  of  no 
importances^  nor  is  an  obvious  error  in  stating  the  grantor's  name.^^ 

§  6.  Authentication  of  officer's  authority. — A  notary  must  attach  his  seaP* 
unless  the  law  at  the  time  of  making  the  deed  and  recording  it  required  no  seal.''' 
It  is  not  sufficient  that  he  styles  himself  "ex  officio  notary"  if  no  notary's  seal  be 
attached.*^ 

§  7.  Operation  and  ejfect.^'' — An  act  making  it  conclusive  on  the  question  of 
duress  or  coercion  of  the  wife  does  not  preclude  inquiry  whether  a  private  examina- 
tion in  legal  form  was  had  as  recited.**  The  clearest  and  most  convincing  evi- 
dence is  necessary  to  impeach  the  certificate.*®  It  must  go  beyond  the  mere  testi- 
mony of  the  acknowledging  party.®"  Contradictory  testimony  by  the  wife  has  been 
held  not  sufficient  to  impeach  the  recitals  of  the  certificate.*^  A  special  allega- 
tion of  fraud  is  necessary  to  attack  it  when  regarded  as  conclusive.®^  It  releases 
dower  without  words  of  conveyance." 

§  8.     Defects  and  invalidities.^* — A  defect  not  apparent  does  not  destroy  the 


43.  1  Am.  &  Bng.   Enc.   Law,   507. 

44.  Good  faith  of  notary  no  defense  for 
failure  to  call  two  witnesses  (Rev.  St.  1899,  § 
913) — State  v.   Grundon,   90  Mo.  App.    266. 

45.  Tippett  V.  Brooks  (Tex.)  67  S.  W.  495, 
512. 

46.  An  Indorsement — Acknowledged  by 
"*  •  clerk  a  party"  and  signed  "•  • 
clerk"  shows  an  acknowledgment  before  a 
party — Leftwich  v.  City  of  Richmond,  4  Va. 
Sup.  Ct.  128,  40  S.  E.  651. 

47.  It  must  give  two  identifying  witnesses 
names  and  residences  where  grantor  was 
personally  unknown  to  notary — "satisfactor- 
ily identified"  not  sufficient — Riehl  v.  Noel, 
89  Mo.  App.  178. 

48.  Linville  v.  Greer,  165  Mo.   380. 

49.  Benedict  v.  Jones,  129  N.  C.  470. 
"Willingly   signed      *     •     without   fear    or 

compulsion  on  the  part  of  her  husband  and 
that  she  wished  not  to  retract"  is  sufficient 
without  words  for  "purposes  and  considera- 
tion therein  expressed" — Arnall  v.  Newcom 
(Tex.  Civ.  App.)    69  S.  W.  92. 

50.  Rev.  St.  1887,  §  2784;  Revision  1899,  § 
2741;  Adams  v.  Smith  (Wyo.)  70  Pac.  1043. 

51.  A  "separate  and  privy  examination"  is 
not  recited  by  recitals  that  she  signed  of 
"her  own  full  will  without  being  forced  or 
compelled,"  etc.  (Pasch.  Dig.  art.  1003)  — 
Estes  V.  Turner  (Tex.  Civ.  App.)  70  S.  W 
1007. 

52.  Recital  that  husband  and  wife  were 
the  "person"  who  "are"   and  that   "he"  exe- 


cuted,   etc. — McCardia   v.    Billings,    10   N.    D. 
373. 

53.  "John  L."  for  "James  M."  as  in  deed — 
Kentucky  L.  I.  Co.  v.  Crabtree,  24  Ky.  Law 
R.   743. 

54.  Koch  v.  West  (Iowa)  92  N.  W.  663. 
Westfeldt  v.  Adams    (N.    C.)    42  S.   E. 


55. 

823. 
56. 
57. 

dence- 


Hayes  v.  Banks,  132  Ala.  354. 
Notary's  testimony  not  secondary  evi- 
-Cassidy    v.    Scottish-American    Mort- 
gage Co.   (Tex.  Civ.  App.)   64  S.  W.  1023. 

58.  Acts  1889,  c.  389;  Benedict  v.  Jones,  129 
N.  C.  470. 

59.  DIckerson  v.  Gritten,  103  111.  App.  351. 

60.  Adams  v.  Smith  (Wyo.)  70  Pac.  1043 — 
holding  evidence  Insufficient  to  show  want 
of  understanding   on   wife's   part. 

Failure  to  privately  examine  the  wife  may 
be  shown  if  certiflcate  does  not  recite  It — 
Adams  V.  Smith  (Wyo.)  70  Pac.  1043. 

61.  Davis  V.  Kelly,  62  Neb.   6,42. 

Evidence  held  sufficient  to  identify  gran- 
tee as  the  acknowledging  officer  who  signed 
by  similar  name — Hunton  v.  Wood  (Va.)  43 
S.   E.   186. 

62.  Brand  v.  Colorado  Salt  Co.  (Tex.  Civ. 
App.)  70  S.  W.  578. 

Affidavit  of  defense  that  acknowledgment 
was  before  consul  general's  deputy,  insuffi- 
cient— Stewart  v.  Linton   (Pa.)   53  Atl.   744. 

63.  Goodheart  v.  Goodheart  (N.  J.  Ch.)  63 
Atl.    135. 

64.  Notary's  bond  is  liable  for  negligently 


20 


ACTIONS. 


force  of  the  record  of  the  instrument/'*  but,  if  the  body  of  the  instrument  show 
that  the  officer  took  it  outside  his  territorial  jurisdiction  the  acknowledgment  is 
null.«8  A  wife  joins  "freely"  if  it  appears  that  her  reluctance  if  any  is  in  no 
wise  attributable  to  her  husband/'  but  not  if  she  joins  under  stress  of  threats  by 
a  drunken  husband  she  stating  to  the  officer  that  her  act  is  not  voluntary."*  It 
is  no  objection  that  a  wife  able  to  read  and  write  stated  that  she  was  ignorant  of 
the  contents  of  the  instrument."^  Want  of  a  legal  acknowledgment  may  prevent 
the  releasing  of  homestead  but  does  not  destroy  the  conveyance.'^*' 

How  cured.'''^ — A  second  validly  acknowledged  mortgage  does  not  by  reciting 
the  existence  of  the  first  supply  the  want  of  a  wife's  acknowledgment." 

Acts  curing  errors  of  form  will  not  validate  acknowledgments  before  one  of 
the  parties."^^  A  statute  validating  deeds  recorded  which  were  acknowledged  with- 
out a  certificate  of  magistracy  of  the  officer  makes  such  deeds  admissible  in  evi- 
dence.'* 

ACTIONS. 

Fo  attempt  is  made  to  treat  other  than  the  general  questions  relating  strictly 
to  "Actions."  "Causes  of  Action  and  Defenses"  and  "Forms  of  Action"  are  dis- 
tinct matters  which  are  elsewhere  treated.''^ 

Action  technically  excludes  the  various  special  forms  of  proceedings  created 
by  statutes.''"  The  word  "action"  as  it  appears  in  statutes  is  subject  to  varying 
constructions  and  the  decisions  thereupon  are  to  be  sought  under  titles  apposite 
to  such  statutes  and  limited  accordingly.'^'  A  proceeding  prosecuted  by  a  city 
against  one  for  violating  an  ordinance  is  not  a  "criminal  action  prosecuted  by  the 
state."'« 

Essentials. — A  proceeding  is  not  necessarily  a  nullity  though  the  nominal  de- 
fendant be  dead  when  the  action  is  instituted.''® 

Action  is  begun  by  issuance  of  process  and  delivery  to  the  sheriff  for  serv- 
ice/" but  not  by  a  service  in  a  county  other  than  that  wherein  only  can  the  action 
be  commenced/^  nor  by  procuring  a  writ  which  was  altered  to  a  later  date  be- 
fore service.     It  is  begun  as  of  the  altered  date.^^     In  the  federal  courts  in  equity 


accepting  another's  identification   of  grantor 
— State  V.  Grundon,  90  Mo.  App.  266. 

65.  Disqualification  of  notary  by  interest 
— Ogden  B.  &  L.  Ass'n  v.  Mensch,  196  111.  554. 

66.  Code  Civ.  Pr.  §  179  limits  Jurisdiction 
of  justice  of  the  peace  to  county — Middlecoff 
V.  Hemstreet.  135  Cal.  173,  67  Pac.  678. 

67.  Goldstein  v.  Curtis   (N.  J.  Ch.)    52  Atl. 


Blumer  v.   Allbright    (Neb.)    89   N.    W. 

Benedict  v.  Jones,  129  N.  C.   470. 
Ogden  B.  &  L.  Ass'n  v.  Mensch,  196  111. 


218. 
68. 

809. 
69. 
70. 

654. 

71.  Failure  of  a  deputy  to  acknowledg-e 
for  himself  personally  In  behalf  of  the  sher- 
iff was  cured  by  Rev.  Codes,  1887,  §  3585 — 
McCardia  v.  Billlng-s,   10  N.  D.   373. 

72.  Evans  v.  Dickenson  (C.  C.  A.)  114  Fed. 
284. 

73.  Ark.  Acts  1893,  p.  66;  Meunse  v.  Har- 
per (Ark.)   67  S.  W.  869. 

74.  Laws  1851,  p.  122;  Stolford  v.  Goldring, 
197  111.  156. 

75.  See  those  titles. 

76.  Ordering  execution  to  enforce  double 
liability  of  stockholders — "Wheeler  v.  Che- 
nault,  63  Kan.  730,  66  Pac.  1010;  establish- 
ment of  a  boundary  under  Laws   1891,  c.  89; 


Swarz  V.  Ramala,  63  Kan.  633,  66  Pac.  649. 
Habeas  corpus  Is  an  action  within  Rev.  St. 
1898,  §  2601;  the  person  seeking  liberty  is 
plaintiff,  the  one  detaining  him  is  an  adverse 
party — State  v.  Hurgln,  110  Wis.  189;  Same 
V.  Aikens,  Id.;  Same  v.  Hoyt,  Id.  Quo  war- 
ranto by  the  state  on  relation  of  a  citizen  is 
in  nature  of  a  civil  action — Fordyce  v.  State 
(Wis.)   92  N.  W.  430;  State  v.  Fordyce,  Id. 

77.  For  instance  in  the  statute  of  limita- 
tions It  will  include  suits  In  equity  and  spe- 
cial proceedings  under  the  Codes;  and  In 
statutes  giving  the  right  of  review  the  same 
matters  may  be  excluded.  See  Appeal  and 
Review;  Limitations  of  Actions  and  other 
titles. 

78.  Comp.  Laws,  §§  4813,  4814;  City  of 
Madison  v.  Horner,   15  S.  D.   359. 

79.  Quieting  title — McClymond  v.  Noble, 
84  Minn.  329. 

80.  In  justice  court  In  Missouri — Heman 
V.  Larkin  (Mo.  App.)  70  S.  W.  907.  Process 
was  issued,  delivered  and  dated  before  bar  of 
limitation  was  complete,  but  was  served 
thereafter — County  v.  Pacific  Coast  Borax 
Co.,  67  N.  J.  Law,  48. 

81.  Code  Civ.  Proc,  §  416;  Benson  v.  East- 
ern B.  &  L.  Ass'n.  67  App.  Div.  (N.  T.)   319. 

82.  Larrabee  v.  Southard.  95  Me.  385. 


ADJOINING  OWNERS. 


21 


filing  a  bill  begins  the  stiit.**  Such  a  commencement  may  be  efEectual  though 
the  Jurisdiction  be  assailable,**  or  the  service  be  somewhat  delayed,*^  or  the  plead- 
ing defective  or  incomplete**  unless  it  states  no  cause  of  action  whatever*'^  or  is 
amended  to  state  a  new  cause  of  action."  Delivering  a  summons  which  is  void 
because  it  was  signed  in  blank  and  filled  in  by  an  attorney  is  not  an  "attempt" 
to  commence  an  action.*^  Voluntary  appearance  is  operative  as  of  its  own  date 
and  not  that  of  a  prior  but  unserved  summons.^^  An  action  is  pending  and  not 
terminated  until  it  is  finally  determined  and  the  rights  of  parties  enforced  or 
discharged.^^ 

ADJOINING  OWNERS.  92 

The  law  of  lateral  support  makes  one  liable  who  removes  such  support  and 
causes  land  to  subside.^^  It  does  not  apply  to  lands  under  water  on  which  piers 
rest.®*  Liability  is  not  averted  by  making  a  wall  a  party  wall.®^  There  is  negli- 
gence in  failing  to  apprise  an  adjoining  owner  of  the  fact  that  excavations  of  which 
he  already  knows  will  go  below  his  foundation/*^  but  none  in  failing  to  provide 
gutters  and  down  spouts  sufficient  to  conduct  an  extraordinary  precipitation  or 
clow]  burst.^^  A  complaint  for  taking  support  from  a  wall  should  allege  facts 
sufficient  to  support  a  finding  of  an  easement."* 

A  tenant  of  an  adjoining  building  may  recover  his  damages  though  the  owner 
consented  to  the  excavation  which  caused  the  damage,  nor  is  it  material  to  the 
tenant's  case  that  his  lessor  made  no  objection  to  the  undermining.^"  One  can- 
not excavate  soil  on  the  sea  shore  where  natural  causes  will  result  in  subsidence 
of  adjoining  property  and  thereby  expose  a  third  property  to  damage.^"" 

Over-leaning  walls  are  abatable  as  a  nuisance^  and  adjoining  riparian  owners 


83.  Humane  Bit  Co.  v.  Barnet,  117  Fed. 
316. 

84.  Non-residence — Walston  v.  Louisville, 
23  Ky.  Law  R.  1852. 

85.  Fifty-two  days'  requested  delay  on 
promise  of  settlement  not  unreasonable — 
Wig-g  V.  Dooley  (Tex.  Civ.  App.)  66  S.  W.  306. 
The  contrary  held  with  respect  to  a  proceed- 
ing under  a  special  statute  (Code  1873,  § 
3157)  to  vacate  a  decree  against  an  insane 
person — Hawley  v.  Griffin  (Iowa)  92  N.  W. 
113. 

86.  Improper  allegations  to  charge  de- 
fendant as  executor — Southern  Contract  Co.'s 
Assignee  v.  Newhouse,  23  Ky.  Law  R.  2141; 
want  of  denial  of  contributory  negligence — 
Chicago  City  R.  Co.  v.  Cooney.  196  111.  466; 
uncertainty — Bell  v.  Floyd,  64  S.  C.  246. 
Amendment  must  be  germane — L.  &  N.  R.  Co. 
V.  Pointer's  Adm'r,  24  Ky.  Law  R.  772;  sup- 
plemental pleadings  —  Knickerbocker  v. 
Benes,  195  111.  434;  no  alleg-ation  of  negli- 
gence— Wolf  V.  Collins,  196  111.  281;  suing 
corporation  by  wrong  name  but  without 
fault  on  plaintiff's  part — Prichard  v.  McCord- 
Collins  Co.   (Tex.  Civ.  App.)    71  S.  W.   303. 

87.  M.  K.  &  T.  R.  Co.  v.  Bagley  (Kan.)  69 
Pac.  189;  Foley  v.  Suburban  R.  Co.,  98  111. 
App.   108. 

88.  Motes  V.  Gila  Val.  G.  &  N.  R.  Co. 
(Ariz.)  68  Pac.  532;  Pardridge  v.  Gilbride, 
98  111.  App.  134;  Western  Stone  Co.  v.  Earn- 
shaw.  98  111.  App.  538;  Taylor  v.  Atchison, 
etc.,  R.  Co.,  (Kan.)  68  Pac.  691.  Amendment 
to  state  a  new  place  where  tort  occurred  is 
not  such — Chicago  City  R.  Co.  v.  McMeen,  102 


111.   App.    318;    Mott    v.    Chicago   &   M.    El.    1*. 
Co..  102  111.  App.   412. 

8».  Rev.  St.  1898,  §§  4240,  3594;  Johnson  v. 
Turnell,  113  Wis.  468. 

90.  Hotchkiss  v.  Aukermann  (Neb.)  90  N. 
W.  949.  Court  journal  entry  held  sufficient  to 
show  an  appearance  before  service — Dunne 
V.  Portland  St.  R.  Co.   (Or.)   65  Pac.  1052. 

91.  When  another  action  is  pending,  see 
Abatement  and  Revival.  What  is  a  deter- 
mination, see  Judgments. 

93.  See,  also,  Boundaries;  Fences;  Party- 
Walls;  abutting  owner.s.  see  Eminent  Do- 
main; Highways  and  Streets. 

93.  Joliet  V.  Schroeder,  92  111.  App.  68. 

94.  Subsidence  of  pier  caused  by  dredging 
in  loose  soil  and  mud — White  v.  Nassau 
Trust  Co.,  168  N.  Y.  149;  subsidence  of  other 
land  at  a  distance  not  admissible  to  show 
loss  of  lateral  support — Noonan  v.  Pardee, 
200  Pa.  474. 

95.  Payne  v.  Moore  (Ind.  App.)  66  N.  E. 
483. 

96.  Davis  V.  Summerfleld  (N.  C.)  42  S.  E 
818. 

97.  Miller  V.  Wilson,  104  HI.  App.   556. 

98.  He  must  allege  either  that  it  was  a 
party  wall  or  prescription,  it  being  insuffi- 
cient to  allege  that  it  stood  on  the  edge  of 
the  lot — Payne  v.  Moore  (Ind.  App.)  66  N.  E 
483. 

99.  Payne  v.  Moore  (Ind.  App.)  66  N.  E 
483. 

100.  Injunction  granted — Murray  v.  Pan- 
naci  (N.  J.  Ch.)   53  Atl.  595. 

1.     Barnes  v.  Berendes  (Cal.)   69  Pac.   491. 


zz 


ADMIRALTY. 


must  so  exercise  wharfage  rights  as  not  to  encroach  on  each  other.''  Heaped  up 
earth  should  be  confined  by  a  retaining  wall.^ 

Either  owner  of  lands  resting  on  the  same  rock  formation  may  do  necessary 
blasting  whether  the  other  has  already  done  so  or  not.*  The  shock  or  vibration 
of  the  soil  is  not  of  itself  actionable.^  Willfulness  and  malice  are  not  essential 
to  a  liability  for  wrongful  occupancy  or  use  of  adjoining  lands.^ 

The  owner  is  not  liable  for  trespasses  by  servants  of  a  licensee.'' 

A  system  of  drains  over  an  entire  tract  becomes  the  property  of  all  separate 
grantees^  and  when  a  drain  is  for  the  benefit  of  both,  the  owner  on  whose  land 
it  is  cannot  obstruct  it.® 

A  frame-work  four  stories  high  covered  with  rough  boards  and  roofed,  under 
which  washings  were  himg  was  held  to  be  a  structure  in  the  nature  of  a  fence 
erected  to  annoy.^"  A  barrier  to  the  throwing  of  refuse  from  the  next  lot  must 
not  unnecessarily  be  made  so  as  to  exclude  light  and  air.  It  makes  no  difference 
that  the  occupants  were  disorderly  in  conduct. ^^ 

The  measure  of  damages  for  an  encroachment  is  the  consequent  reduction  of 
the  selling  value.^^  Loss  of  profits  of  the  use  of  a  projected  building  should  not 
be  included,  at  least  until  after  the  building  could,  but  for  the  encroachment  have 
been  erected.^^  Unless  there  be  negligence  the  damage  from  withdrawing  lateral 
support  does  not  include  injury  to  buildings.^* 

The  statutory  action  in  New  York  respecting  narrow  encroachments  applies 
only  when  there  is  an  abutting  building  on  the  plaintiff  owner's  property.^^ 

ADMIRALTY. 

This  title  properly  includes  admiralty  jurisdiction,  courts,  practice,  and  pro- 
cedure. It  excludes  the  law  of  maritime  traffic,^^  of  navigation  and  navigable 
waters,^''  of  war  and  of  nations.^^ 

§  1.  Jurisdiction  and  courts. — The  rights  of  foreign  seamen  under  articles 
to  a  foreign  ship  will  not  be  determined  on  a  suit  by  them,  but  may  be  incident- 
ally to  a  suit  by  one  of  the  seamen  who  is  an  American.  If  an  American  sea- 
man demand  process  against  the  ship  under  a  maritime  contract  jurisdiction  mu?t 
be  taken  and  not  remitted  to  a  consular  representative.^®  A  suit  against  a  for- 
eign ship  by  a  seaman  for  neglect  and  mistreatment  while  injured  will  be  heard 


2.  Montg-omery  v.  Shaver  (Or.)  66  Pac. 
923. 

3.  Abrey  v.  Detroit,  127  Mich.   374. 

4.  De  Carvajal  v.  T.  M.  C.  A.,  37  Misc.  (N. 
T.)    727. 

6.  Tucker  v.  Mack  Pav.  Co.,  61  App.  Div. 
(N.  Y.)   521. 

6.  Permitting  an  excavation  to  fill  with 
water;  declaration  sufficient  alleging  making 
of  excavation  in  which  water  gathered  to 
Injury  of  adjoining  building — Garvy  v. 
Coughlan,  92  111.  App.  582. 

7.  Cutting  timber — Klotz  v.  Lindsay,  88 
Mo.  App.  594. 

8.  Lanter  v.  Hartman,  95  111.  App.  80. 

9.  The  parties  must  have  agreed  (Kurd's 
Rev.  St.  1899,  p.  717) — Hall  v.  Pfnister,  95 
111.  App.  159. 

10.  Under  Pub.  St.  .  143,  §§  28,  29 — Horan 
V.   Byrnes,   70  N.   H.   531. 

11     Bloom  V.  Koch    (N.  J.   Ch.)    50  Atl.   621. 

12.  Goldbacher  v.  Eggers,  38  Misc.  (N.  Y.) 
36. 

13.  Barnes  v.  Berendes   (Cal.)   69  Pac.  491. 


14.  Mining — Matulys  v.  P.  &  R.  Coal  & 
Iron  Co.,   201   Pa.   70. 

15.  Code  Civ.  Proc,  §  1499;  Goldbacher  v. 
Eggers,  38  Misc.  (N.  Y.)  36,  see,  also,  infra. 
The  one  year  limitation  on  actions  to  recover 
a  strip  encroached  on  by  a  wall  applies 
though  only  part  of  it  is  covered — Volz  v. 
Steiner,  67  App.  Div.  (N.  Y.)  504.  The  right 
to  an  adjudication  of  title  to  a  strip  en- 
croached on  is  not  separable  from  the  right 
to  sue  to  remove  encroaching  structures. 
They  must  be  joined — Code  Civ.  Proc.  §§  481, 
3339,  also  c.  14,  tit.  1,  art.  1;  Hahl  v.  Sugo,  169 
N.  Y.  109. 

Remedies  In  general,  see  Trespass,  Eject- 
ment, and  the  like. 

Actions  for  injury  to  chattels  and  for  the 
trespass  against  the  possession  cannot  be 
joined — Hall  v.  L.  Weber  Bldg.  Co.,  36  Misc. 
(N.  Y.)   551. 

16.  Shipping   and   "Water   Traffic. 

17.  Collision;   Navigable   waters. 

18.  International  Law;   War. 

19.  The  Falls  of  Keltie,  114  Fed.  357. 


ADMIRALTY. 


23 


if  he  would  otherwise  be  remediless.^**  .Jurisdiction  must  rest  on  the  subject- 
matter  of  a  set-oif  and  not  on  the  set-off  itself  .^^ 

Contracts  to  act  as  seamen  en  voyage  to  fisheries,  there  to  fish  and  assist  in 
canning  the  catch,^^  and  to  navigate  a  vessel  outward  and  returning  are  maritime 
within  cognizance  of  admiralty/^  but  agreements  for  brokerage  though  written 
into  a  charter  party  are  not.-*  A  suit  for  wharfage  against  the  owner  of  a  do- 
mestic vessel,"^  or  a  lien  for  penalty  under  a  state  law  against  vessels  which  re- 
fuse to  take  on  a  pilot  as  well  as  the  lien  for  pilotage,  also  are.-^ 

A  proceeding  for  limitation  of  liability  may  be  brought  though  the  owner 
has  permitted  an  action  to  go  to  judgment  against  him  but  has  successfully  ap- 
pealed.^'' It  may  be  brought  in  any  district  where  the  owner  is  liable  to  suit 
though  the  vessel  is  not  there.^^ 

Recovery  for  wrongfully  causing  death. — Courts  of  a  state  have  jurisdiction 
of  an  action  against  a  registered  vessel  for  negligence  in  port  resulting  in  a  death 
on  the  high  seas.^''  Admiralty  will  enforce  a  statutory  liability  for  wrongfully 
causing  death. ^°  The  common  law  of  Hawaii  permits  a  recovery  for  torts  caus- 
ing death,  hence  the  courts  of  admiralty  will  enforce  such  a  right. ^^ 

The  partition  of  interest  in  vessels  is  "a  common  law  remedy"  which  the  ad- 
miralty laws  save  to  the  state  courts,^^  and  hence  partition  may  be  had  in  the. 
state  court  under  circumstances,  which  would  not  give  such  relief  in  the  feu.x-al 
court.'' 

§  2.  Remedies  and  remedial  rights. — The  vessel  rather  than  her  owners  may 
be  proceeded  against  on  a  remedy  in  rem  and  it  is  not  too  late  to  do  so  on  her 
second  visit  after  the  injury.'*  A  contract  to  proceed  to  a  port  and  there  tow 
a  vessel  is  executory  until  the  towage  is  undertaken;  hence  a  breach  in  turning 
aside  to  perform  other  services  is  not  remediable  against  the  tug  in  a  proceeding 
in  rem.'^  The  relief  given  when  enforcing  a  maritime  tort  defined  by  a  state 
law  will  be  such  only  as  conforms  to  the  statute  creating  the  liability,^®  Nom- 
inal damages  for  personal  torts  are  not  awarded. ^^  It  is  proper  to  join  both  the 
ship  and  the  charterers  if  they  are  both  charged  with  liability  for  breach  of  a 
contract  of  affreightment.'^  A  charterer  obligated  to  protect  the  vessel  from  liens 
may  interpose  defenses.'^  The  right  to  limit  liability  is  not  barred  by  a  prior 
judgment  for  damages  in  a  state  court.*"  Payment  of  costs  in  the  state  court 
may  be  imposed  on  an  owner  who  asks  a  limitation  of  liability  after  he  has  de- 
fended on  the  merits  in  the  state  court.*^  A  claimant  who  gave  an  ordinary  claim- 
ant's bond  when  a  bond  was  required  to  prevent  setting  aside  the  sale  of  a  ves- 


20.  The  Troop,  118.  Fed.  769. 

21.  American  Steel  Barge  Co.  v.  Chesa- 
peake &  O.  Coal  Agency  Co.,  (C.  C.  A.)  116 
Fed.    857. 

S3.  Domenico  v.  Alaska  Packers'  Ass'n, 
112  Fed.  554. 

23.  The  Laurel,  113   Fed.   373. 

24.  Brown  v.  West  Hartlepool  S.  N.  Co.  (C. 
C.  A.)  112  Fed.  1018;  Taylor  v.  Weir,  110  Fed. 
1005. 

25.  Braisted  v.  Denton,  115  Fed.  42S. 

26.  The  Lida  Fowler,  113  Fed.  605. 

27.  The  Ocean  Spray,  117  Fed.  97;  Gleason 
V.  Duffy  (C.  C.  A.)  116  Fed.  298. 

28.  Gleason  v.  Duffy  (C.  C.  A.)  116  Fed. 
298. 

29.  Lindstrom  v.  International  Nav.  Co., 
117  Fed.  170. 

30.  The  Northern  Queen,  117  Fed.  906. 

31.  The  Schooner  Robert  Lewers  Co.  v. 
Kekonoha  (C.  C.  A.)   114  Fed.  849. 


32.  Rev.  St.  U.  S.,  §  563;  Reynolds  v.  Niel- 
son   (Wis.)  93  N.  W.  455. 

33.  As  where  there  is  a  majority  owner — 
Reynolds  v.  Nielson   (Wis.)   93  N.  W.  455. 

34.  The  Slingsby,    116   Fed.    227. 

35.  The  Francesco,  116  Fed.  83;  The  F.  W. 
Munn,  Id. 

30.     Stern      v.      La      Compagnie      Generale 
Transatlantique,    110   Fed.    99£. 

37.  In  re  California  Nav.  &  Imp.  Co.,  110 
Fed.    670. 

38.  Within  spirit  of  Admiralty  Rule   59 — 
The  Planet  Venus.  113  Fed.   387. 

39.  Alaska  &  P.  S.  S.  Co.  v.  Chamberlain  & 
Co.    (C.  C.  A.)    116  Fed.  600. 

40.  Gleason   v.   Duffy    (C.    C.   A.)    116    Fed. 
298. 

41.  The  Ocean  Spray,  117  Fed.  97;  Gleason 
V.  Duffy  (C.  C.  A.)  116  Fed.  298. 


24 


ADMIRALTY. 


sel  cannot  deny  that  it  represents  the  vessel  which  was  released  on  the  strength 
of  it.*-  Damages  in  addition  to  costs  may  be  recovered  by  a  vessel  owner  from 
one  who  procures  the  arrest  of  a  vessel  by  due  process  but  without  an  honest  be- 
lief that  he  is  using  a  rightful  remedy.*^ 

§  3.  Practice  and  procedure.  A.  Pleading  process^  etc.^* — Libels  in  rem  and 
in  personam  may  be  joined  on  considerations  of  convenience  or  the  promotion  of 
justice.  The  admiralty  rules  of  the  Supreme  Court  do  not  govern.*^  Misjoinders 
are  waived  by  failure  to  except  to  the  libel.*^ 

It  is  not  indispensable  to  state  nationality  of  a  libeled  vessel  if  the  libelant 
pleads  his  American  citizenship.*'^  Claims  for  a  marine  tort  not  litigable  against 
the  vessel  in  rem  may  be  rejected  as  surplusage  if  a  cause  in  rem  remains  in  other 
allegations.*^ 

Subrogation  to  a  fund  recovered  from  a  colliding  vessel  may  be  enforced  on 
an  intervention  begun  after  judgment  on  a  mandate  from  the  appellate  court.*'-* 
An  answer  den}'ing  negligence  on  the  part  of  the  ship  and  propounding  interroga- 
tories respecting  goods  and  their  value  cannot  be  held  sham  and  frivolous  until 
interrogatories  be  answered.^"  Tenders  and  deposits  made  with  the  answer  need 
not  include  fees  which  become  taxable  only  on  final  decision.  ^^  Exceptions  when 
not  specific  must  strike  at  more  than  form  or  style.^^  The  owner's  remedy  to  en- 
force the  lien  on  subfreight  for  charter  money  is  by  libeling  the  subfreight  alone 
with  process  requiring  the  holder  of  the  bill  of  lading  or  cargo-owner  to  bring 
the  freight  into  court.  This  may  be  compelled  by  summary  process  against  the 
cargo  or  its  owner  but  it  should  not  be  proceeded  against  until  after  an  order  to 
pay  in  freight.  A  warrant  of  arrest  prematurely  issued  may  be  retained  if  after- 
wards found  to  be  justified.^^ 

New  parties  may  be  brought  in  on  petition,  when  they  are  responsible  for 
the  claim  sued  on,  by  analogy  to  practice  in  collision  cases  under  the  59th  rule.^* 

B.  Evidence,  proof  and  hearing,  and  decree. — A  decree  in  rem  against  a  col- 
liding vessel  is  not  admissible  for  cargo  owners  who  were  not  made  legally  subject 
to  it.^^  Testimony  of  officers  and  witnesses  on  board  is  of  more  weight  than  opin- 
ions of  others.^" 

Issues. — On  a  libel  for  charter  hire  the  whole  contract  may  be  gone  into  wheth- 
er all  breaches  are  specifically  alleged  or  not.^''  Whether  a  vessel  owner  design- 
edly or  negligently  caused  a  fire  may  be  inquired  into  in  a  proceeding  to  limit  lia- 
bility.^^    On  a  suit  for  salvage  against  ship  and  cargo,  the  cargo  owners  cannot 


43.  The  New  York  (C.  C.  A.)  113  Fed.  810; 
Smith  V.   McAllister,   Id. 

43.  Gow  V.  William  W.  Brauer  S.  S.  Co., 
113  Fed.  672. 

44.  After  remand  see  also  infra,   §   4. 

45.  The  Thomas  P.  Sheldon,  113  Fed.  779; 
The  S.  L.   Watson,  Id. 

46.  Separate  claims  for  salvage  and  tow- 
age— Merritt  &  Chapman  Co.  v.  Chubb  (C.  C. 
A.)   113  Fed.  173. 

47.  The  Falls  of  Keltie,  114  Fed.  357. 

48.  Assaults  by  master  on  seamen — The 
Falls  of  Keltie,  114  Fed.  357. 

49.  Intervention  by  insurer — Mason  v.  Ma- 
rine Ins.  Co.  (C.  C.  A.)   110  Fed.  452. 

.50.     The  Oregon  (C.  C.  A.)   116  Fed.   482. 

51.  Docket  fees.  Rev.  St.,  §  824 — Merritt  & 
Chapman  Co.  v.  Catskill  &  N.  T.  Steamboat 
Co.,  112  Fed.   442. 

52.  New  Haven  Towing  Co.  v.  City  and 
Town  of  New  Haven,  116  Fed.  762;  Castle  v. 
Same,  Id. 


53.  American  Steel  Barge  Co.  v.  Chesa- 
peake &  O.  Coal,  etc.,  Co.  (C.  C.  A.)  115  Fed. 
669. 

54.  Dailey  v.  City  of  New  York,  119  Fed. 
1005. 

55.  The  Harrogate  (C.  C.  A.)  112  Fed. 
1019. 

56.  The   Captain   Sam,   115   Fed.    1000. 
Pleadings  and   proofs  held  not  to  warrant 

a  decree  against  defendant  owners  of  the 
salved  vessel,  who  had  been  allowed  a  sum 
for  salvage,  that  they  pay  salvage  in  exoner- 
ation of  the  defendant  insurer  who  contract- 
ed for  it — Merritt  &  Chapman  Co.  v.  Chubb 
(C.  C.  A.)    113   Fed.  173. 

57.  Time  of  surrendering  the  vessel  is 
raised  by  libeling  for  hire  for  the  month  in 
advance  during  which  surrender  was  made — 
Gow  V.  William  W.  Brauer  S.  S.  Co.,  113  Fed. 
672. 

58.  Rev.  St.,  §  42S;  In  re  Old  Dominion  S. 
S.  Co.,  115  Fed.  845. 


ADMIRALTY. 


25 


litigate  against  the  ship  her  liability  for  the  disaster.^®  An  amendment  after 
remand  alleging  that  libelant  insurer  was  authorized  to  file  the  libel  and  collect 
the  amount  paid  as  insurance  and  that  the  vessel  owner  claimed  no  further  dam- 
ages is  supported  by  proof  of  a  release  from  the  vessel  owner  to  the  insurer  made 
after  remand  on  appeal.®" 

Commissioner's  findings  should  when  practicable  be  paragraphed  and  num- 
bered and  exceptions  should  refer  to  such  numbers.®^  It  is  of  great  weight  with 
the  court.®^  Objections  to  a  commissioner's  computation  should  be  by  exception. 
His  procedure  is  analagous  to  that  of  a  master  in  chancery.®^  It  is  not  a  fatal 
error  that  on  a  reference  a  commissioner  sat  outside  the  jurisdiction.*^* 

Rearing  and  decree. — The  circuit  court  may  if  it  has  obtained  jurisdiction 
consolidate  suits  pending  before  it  and  the  district  courts  growing  out  of  one 
disaster.®^  Damages  should  be  confined  to  the  claims  in  the  pleadings.^®  A  de- 
cree may  be  corrected  after  term  in  favor  of  a  petitioner  free  from  fraud  or 
laches  if  justice  requires  it.®^  Unless  the  vessel  was  arrested  and  advertised,  cargo 
owners  are  not  affected  by  a  decree  in  rem  founded  on  an  appearance  by  vessel 
owners.®*  If  the  court  had  power  to  permit  the  amendment  of  a  libel,  sureties 
on  a  stipulation  to  release  a  vessel  are  found  by  decree  as  on  the  original  libel.®'' 

Costs. — The  premium  paid  to  a  surety  company  for  a  bond  to  secure  libelant's 
responding  in  damages  to  a  cross-libel,  when  such  bond  is  required  by  a  claimant 
under  rule  53,  is  taxable  as  costs.""  This  is  not  so  where  the  surety  company  was 
obligated  to  protect  the  vessel  from  liens  and  hence  acted  for  its  own  protection 
without  really  receiving  a  premium.''^  The  taking  of  an  excessive  bond  will  not 
exonerate  a  claimant  from  costs  if  he  agreed  to  the  amount  or  failed  to  seek  a 
reduction.''^  The  issuance  of  an  arrest  prematurely  may  be  compensated  in  costs.'^"' 
Costs  subsequent  to  a  tender  of  freight  for  cargo  actually  carried,  less  the  ex- 
pense entailed  by  failure  to  carry  all  that  was  agreed,  will  be  charged  to  a  libeling 
carrier  and  not  to  the  shipper."^*  If  the  court  had  jurisdiction  of  subject  matter 
and  parties  the  libelant  may  be  charged  with  costs  though  the  libel  be  dismissed.'^'' 

§  4.  Appeals  and  subsequent  proceedings. — Practice  on  appeal. — Dismissal  of 
a  cross  libel  on  a  collision  is  an  interlocutory  order  not  reviewable  by  the  Supreme 
Court.''®  Judgment  on  demurrer  with  leave  to  amend  is  interlocutory  and  goes  up 
with  final  decree  on  the  amended  libel.^^  An  appeal  by  one  claimant  does  not  bring 
up  other  distinct  claims  covered  by  the  decree.''*  Objections  to  computations  by  a 
commissioner  will  be  waived  on  appeal  unless  saved  by  exception  on  or  prior  to  time 
of  hearing  below.''^     Objections  for  nonjoinder  should  be  made  below.*® 


.59.     The  James  Turpie,  113  Fed.  700. 
CO.     Fairgrieve  v.  Marine  Ins.  Co.  (C.  C.  A.) 
112  Fed.   364. 

61.  The  Itasca,   117   Fed.    885. 

62.  The  Gertrude,    112  Fed.    448. 

63.  The  Eliza  Lines  (C.  C.  A.)  114  Fed.  307. 
C4.     The   William   H.   Bailey,   100  Fed.   115; 

affirmed.    111    Fed.   1006. 

65.  For  salvage  against  ship  and  cargo, 
for  possession  of  cargo  by  cargo-owner,  for 
payment  of  freight  and  general  average  by 
master  against  cargo — The  Eliza  Lines  (C.  C. 
A.)   114  Fed.  307. 

66.  The   Itasca,    117   Fed.    885. 

67.  Decree  of  dismissal  inadvertently  en- 
tered by  clerk  before  any  order  was  made  by 
court  set  aside  and  re-entered  to  save  ap- 
peal— Hall  v.  Chisholm  (C.  C.  A.)  117  Fed. 
807. 

68.  The  Harrogate  (C.  C.  A.)  112  Fed. 
1019. 


69.  Fairgrieve  v.  Marine  Ins.  Co.  (C.  C.  A.) 
112   Fed.   364. 

70.  Jacobsen  v.  Lewis  Klondike  Expedi- 
tion Co.  (C.  C.  A.)  112  Fed.  73.  Costs  on  ap- 
peal, see  infra,  §  4. 

71.  The  Robert  Dollar,  116  Fed.  79. 

72.  The  Barge  No.  127.  113  Fed.  529. 

73.  American  Steel  Barge  Co.  v.  Chesa- 
peake &  O.  Coal,  etc.,  Co.,  115  Fed.  669. 

74.  Edward  Hines  Lumber  Co.  v.  Cham- 
berlain (C.  C.  A.)   118  Fed.  716. 

75.  The  Francisco,  118  Fed.  112;  The  F.  W. 
Munn,   Id. 

76.  Bowker  v.  United  States  (U.  S.)  22 
Sup.  Ct.  802. 

77.  Dennis  v.  Slyfleld  (C.  C.  A.)  117  Fed. 
474. 

78.  Mason  v.  Marine  Ins.  Co.  (C.  C.  A.)  110 
Fed.  452. 

79.  The  Eliza  Lines  (C.  C.  A.)   114  Fed.  307. 

80.  Salvage    awarded    to    crew    of    salving 


26 


ADOPTION  OF  CHILDREN. 


Review  and  liearing. — Error  must  be  made  manifest  by  appellant  before  a 
conclusion  reached  by  two  courts  below  will  be  disturbed."  The  same  is  true 
where  testimony  was  conflicting  or  where  the  witnesses  are  not  impugned  in  any 
way.^2  The  trial  court's  award  will  be  reduced  only  for  injustice,  palpable 
error  or  gross  overallowance/^  and  the  court  will  strongly  favor  the  correctness 
of  a  decree  for  damages  after  an  appraisement  taken,  as  against  testimony  of  wit- 
nesses who  saw  the  vessel  some  years  later,^*  The  practice  of  taking  further  testi- 
mony on  app^^^l  is  to  be  discouraged.^^  Defects  in  record  or  proof  due  to  appel- 
lant's lack  of  diligence  are  not  reversible  errors.^^  If  the  final  judgment  was 
on  one  cause  of  action  only  the  other  having  been  dismissed  it  matters  not  that 
there  was  a  misjoinder.^^ 

A  mandate  reversing  the  decree  because  an  insurer  recovered  more  than  he 
paid,  and  which  allowed  an  amendment  to  show  that  no  liability  longer  existed 
towards  any  one  but  insurer  is  satisfied  by  an  amendment  and  proof  that  after 
remand  the  vessel  owner  released  all  right  to  the  insurer.^^  An  amendment  to 
plead  a  special  defense  in  a  new  form  after  it  has  gone  through  to  the  Supreme 
Court  and  been  remanded  will  be  denied.^*  Each  party  should  pay  his  own  costs 
rather  than  divide  them  where  both  appeal  and  both  fail  to  maintain  the  appeals.^'' 

ADOPTION  OF  CHILDBEN.91 

Adoptive  acts  and  proceedings. — A  parol  agreement  may  be  executed  so  as  to 
dispense  with  a  deed  by  reception  of  a  child  as  one's  own  and  by  so  treating  her 
until  grown^^  and  may  be  specifically  enforced.^^  A  sealed  will  reciting  an  adop- 
tion is  neither  operative  as  a  deed  of  adoption  nor  conclusive  that  one  had  been 
made.^*  The  fact  that  a  deed  of  adoption  was  recorded  is  evidence  that  an 
acknowledgement  of  it  was  regular^^  and  the  record  of  an  order  of  adoption 
reciting  presence  of  the  parties  and  of  the  child  and  execution  of  consents  over- 
comes an  objection  that  the  agreements  were  not  executed  in  the  judge's  presence.®* 
A  petition  may  state  residence  of  parents  by  reference  to  their  written  consent 
attached  to  it.®^  A  probate  judgment  of  adoption  will  be  secure  against  collateral 
attack  though  not  formally  entered.  The  essential  facts  other  than  those  recited 
will  be  presumed  to  have  been  found.®^     A  blank  decree  signed  and  with  proper 


vessel  not  made  parties — The  Flottbek  (C.  C. 
A.)  118  Fed.   954. 

81.  "^Mlder's  S.  S.  Co.  v.  Low  (C.  C.  A.) 
112  Fed.  161. 

82.  Jacobsen  v.  Lewis  Klondike  Expedi- 
tion Co.  (C.  C.  A.)  112  Fed.  73;  Alaska  Pack- 
ers' Ass'n  V.  Domenico  (C.  C.  A.)  117  Fed.  99. 

83.  Hume  v.  J.  D.  Spreckels  &  Bros.  Co. 
(C.  C.  A.)   115  Fed.  51. 

84.  Fairgrieve  v.  Marine  Ins.  Co.  (C.  C.  A.) 
112  Fed.   364. 

85.  Should  be  produced  on  trial  when  pos- 
sible— Pacific  Steam  Whaling  Co.  v.  Gris- 
more    (C.  C.   A.)    117  Fed.   68. 

86.  The  McDonald   (C.  C.  A.)  112  Fed.  681. 

87.  The  S.  L.  Watson  (C.  C.  A.)  118  Fed. 
945;  The  Thomas  P.  Sheldon,  Id. 

88.  Fairgrieve  v.  Marine  Ins.  Co.  (C.  C.  A.) 
112  Fed.  364. 

89.  Burrill  v.  Crossman,  111   Fed.  192. 

90.  Donnell  v.  Amoskeag  Mfg.  Co.  (C.  C. 
A.)  118  Fed.  10;  Amoskeag-  Mfg.  Co.  v.  Don- 
nell. Id.;  following  The  North  Star,  106  U.  3. 
17,  27  Law.  Ed.  91;  rejecting  rule  for  division 
in  McComb  v.  Frink,  149  U.  S.  629,  37  Law. 
Ed.  876. 


In  re  Phillips'  Estate,  17  Pa.  Super.  Ct. 


91.  The  legal  relation  between  a  foster 
parent  and  child  is  considered  to  belong  to 
the    title   "Parent    and   Child." 

92.  The  surrender  was  on  the  express  con- 
dition that  she  would  be  so  treated  and  the 
foster  parent  concealed  from  the  child  Its 
real  parentage — Lynn  v.  Hockaday,  162  Mo. 
111. 

93.  McElvain  v.  McElvaln  (Mo.)  71  S.  W. 
142. 

94. 
103. 

95.  It  bore  two  signatures,  one  by  the 
probate  Judge,  and  one  by  unauthorized  of- 
ficer. The  law  (Vt.  Stat.  1894,  §  2861)  required 
the  probate  judge  to  be  satisfied  that  it  had 
been  complied  with — Cook  v.  Bartlett.  179 
Mass.    576. 

96.  Von  Beck  v.  Thomsen,  44  App.  Div.  (N. 
Y.)   373;  aflirmed,   167  N.  Y.  601. 

97.  Substantial  compliance  with  1  Starr  & 
C.  Ann.  St.  1896,  p.  353 — Flannigan  v.  How- 
ard,  200   111.   396. 

98.  Blanks  were  left  in  the  decree  for  the 
names  of  the  adopter  and  the  children— Wil- 
son v.  Otis    (N.  H.)   53  Atl.  439. 


ADULTERATION. 


27 


necessary  findings  is  proof  of  rendition  of  such  a  decree.®*  Validity  of  the  decree 
is  unaffected  by  the  long  absence  of  the  petition  and  decree  from  the  court  files.^ 
An  adoption  is  not  presumed  merely  from  the  fact  that  the  child  resided  with  the 
alleged  adoptor  who  was  of  the  same  race.^  It  cannot  be  proved  by  parol  evidence, 
unless  there  be  some  testimony  as  to  the  legal  act  of  adoption  and  explanation  of 
why  it  is  not  produced.^ 

Consequences  of  adoption. — The  adopting  father's  wife  acquires  no  paternal 
rights  under  the  Tennessee  laws  if  she  does  not  join  in  the  proceedings.*  Xeither 
is  the  natural  mother  estopped  as  against  her  by  having  joined.^  In  Nebraska 
there  is  no  inheritable  capacity  conferred  if  it  be  not  so  stipulated  in  the  act  of 
adoption.'  In  Missouri  it  is  conferred  by  an  executed  parol  adoption.'^  In  Wis- 
consin adoption  of  a  child  during  marriage  revokes  a  wilP  and  the  same  results 
in  -Illinois  by  virtue  of  acts  giving  the  inheritable  capacity.®  Bastards  may  in 
some  states  be  legitimized  by  acts  of  adoption  or  recognition  and  thus  clothed 
with  inheritable  and  other  rights.^"  Where  the  proceeding  confers  "all  the  rights" 
of  the  relation,  a  child  adopted  comes  imder  a  prior  policy  payable  to  "children,"^^ 
but  the  question  whether  the  word  "child"  includes  an  adopted  one  usually  in- 
volves the  interpretation  of  the  instrument  containing  it.^^ 

A  contract  to  adopt  providing  that  the  adopter  shall  care  for,  maintain  and 
make  future  provision  for  a  child,  to  give  her  his  name  and  teach  her  to  regard 
liimself  and  wife  as  parents  is  sufficiently  definite  to  be  specifically  enforced,  is 
consonant  with  public  policy,  and  has  for  its  consideration  the  surrender  of  pa- 
rental rights  by  the  real  parents.  It  is  not  unjust  to  the  widow  and  natural 
children  if  only  a  child's  portion  falls  to  the  adopted  one.^*  It  is  not  enforceable 
at  law  and  may  not  be  in  equity  if  the  child  lives  unworthily.**  Declarations  and 
suppositions  that  the  parent  would  make  the  adopted  child  a  legatee  must  have 
amounted  to  a  contract  so  to  do,  or  the  child  will  have  no  rights  against  a  con- 
trary disposal  by  the  will.*'' 

ADTTLTEBATION. 

§  1.  Legislation  and  regulation. — The  police  power  entitles  a  state  to  repress 
or  forbid  adulterations  that  are  deleterious*®  which  are  not  protected  because  they 
liappen  to  be  by  a  patented  process.*^  Statutes  directed  against  sale  of  injuriously 
or  fraudulently  adulterated  foods  are  not  an  interference  with  interstate  com- 
merce.**    A  state  law  against  fraudulent  adulterations  does  not  conflict  with  the 


99.     Wilson  V.  Otis  (N.  H.)   53  Atl.  439. 

1.  Wilson  V.  Otis   (N.  H.)    53  Atl.  439. 

2.  Indians — Henry  v.  Taylor  (S.  D.)  93  N. 
W.  641. 

3.  Henry  v.  Taylor  (S.  D.)  93  N.  W.  641. 

4.  Shannon's  Code.  §§  5409-5411;  Baskette 
V.  Streight,  106  Tenn.  549.  This  statute  allows 
a  wife  to  join  though  its  words  import  only 
the  masculine — Balch  v.  Johnson,  106  Tenn. 
249. 

5.  Baskette  v.  Straight,  106  Tenn.  549. 

,  6.  Gen.  St.  1873.  c.  57,  tit.  25,  §  797,  pro- 
vides that  the  adopting  person  "may  stipu- 
late" that  the  child  shall  have  rights  of  a 
natural  parent — Ferguson  v.  Herr  (Neb.)  90 
N.  W.   625. 

7.  Lynn  v.  Hockaday,  162  Mo.  111. 

8.  Rev.  St.  1898.  c.  173,  §§  4021-4024;  Glas- 
cott  V.   Bragg,    111   Wis.    605. 

9.  Flannigan  v.  Howard,  200  111.  396. 

10.  See  Bastards;  Descent  and  Distribu- 
tion. 

11.  Laws    1887,    c.    703,   §   10,    Von    Beck   v. 


Thomsen,  44  App.  Div.  (N.  T.)  373;  affirmed, 
167  N.  T.  601.  A  policy  payable  to  the  foster 
mother  or  to  children  if  she  should  pre-de- 
cease  the  Insured  is  not  a  trust  dependent  on 
survival  of  heirs  within  the  exception  of  the 
statute   (see  section  10). 

12.  See  Wills  and  like  titles.  Not  Included 
In  "bodily  heirs" — Balch  v.  Johnson,  106 
Tenn.  249. 

13.  Healy  v.  Healy,  55  App.  Div.  (N.  Y.) 
315;  affirmed,  167  N.  T.  572. 

14.  Winne  v.  Winne.  166  N.  T.  263. 

15.  Steele  v.  Steele.  161  Mo.  566.  Testimony 
of  a  conversation  30  years  ago  not  sufficient 
to  prove  agreement  to  make  adopted  child 
heir  in  face  of  a  deed  to  custody  of  the  child 
silent  on  the  subject — Merchant  v.  White,  77 
App.  Div.   (N.  T.)   539. 

16.  Commonw^ealth  v.  Kevin.  202  Pa.  23. 

17.  Arbuckle  v.  Blackburn  (C.  C.  A.)  113 
Fed.   616. 

18.  As  in  Ohio — Arbuckle  v.  Blackburn 
(C.  C.  A.)   113  Fed.  616. 


28 


ADULTERATION. 


federal  law  against  importations  of  harmfully  or  unwholesomely  adulterated 
foods.^*  The  Xew  York  law  is  not  unconstitutional  in  requiring  a  test  from 
"milk  of  the  herd"  when  a  producer  is  to  be  prosecuted  and  making  a  test  from 
samples  of  milk  sold  or  offered  when  a  mere  vender  is  to  be  prosecuted.'" 

§  2.  The  offense. — ^A  prohibition  of  the  use  of  certain  preservatives  does 
not  make  them  adulterants.^^  Use  of  preservatives  on  meat  is  not  included  by 
the  words  "or  food  products  of  any  nature"  as  used  in  the  Minnesota  statute  in 
immediate  connection  with  enumerated  dairy  products.^^  Under  the  Pennsyl- 
vania act  an  injurious  adulterant  need  not  be  used  in  injurious  quantities.^* 
Oleomargarine  is  colored  like  "yelloV  butter  if  it  has  a  "perceptible  shade"  of 
yellow.^*  A  liquid  produced  by  soaking  dried  apple  waste  and  coloring  it  is  an  imi- 
tation of  cider  vinegar.'^' 

A  statute  declaring  a  fine  on  one  who  has  in  possession  adulterated  food  with 
intent  to  sell  it  gives  such  the  character  of  an  offense  though  a  prior  clause  pro- 
hibits other  acts  but  omits  this.-^  The  offense  of  unlawfully  having  in  possession 
subsists  though  accused  did  not  himself  procure  the  adulteration.-^  It  is  a  selling 
to  send  orders  and  receive  shipments  as  "agent"  and  distribute  them,^*  but  not 
every  order  procured  by  an  agent  brings  him  within  a  statute  declaring  that  taking 
orders  shall  be  deemed  a  sale.^®  If  he  takes  an  order  for  "pure"  products,  he  is 
guiltless  though  his  employer  sends  adulterated  goods  marked  "pure."^° 

Defendant  may  show  that  he  innocently  used  a  preservative  represented  to 
be  free  from  any  harmful  ingredient  and  especially  from  the  one  found.^^  Under 
the  Xew  York  law  against  selling  adulterated  milk  the  intent  of  the  vender  is 
iTriTnatenal-^- 

When  the  offense  is  in  selling  or  offering  adulterated  milk  and  conviction  is 
on  tests  of  a  sample  fairly  taken  it  is  not  relevant  that  accused  had  not  tampered 
with  the  milk  nor  that  no  sample  was  taken  from  milk  of  the  producer's  herd.^* 
Reading  and  study  may  qualify  one  as  an  expert  to  say  that  formaldehyde  is 
deleterious.^* 

§  3.  Enforcement  and  prosecution. — A  law  pro\dding  for  the  forfeiture  of 
a  certain  sum  for  violation  should  be  enforced  by  action  and  not  criminally.*' 


19.  "Coated,  colored  or  polished."  Laws 
1S93,  c.  661,  §  41.  and  Act  Cong.  1S90.  c.  839 — 
Crossman    v.    Lurman.    171   N.   T.    329. 

20.  Laws  1S93,  c.  338;  Laws  1900.  c.  101 — 
People  V.  Laesser  (Sup.)  79  N.  Y.  Supp.  470. 

21.  People  V.  Biesecker,  169  N.  Y.  53. 

22.  State  V.    Rumberg,   86   Minn.    399. 

23.  Salicylic  acid  in  fruit  juice;  Act  June 
26,  1895,  §  3,  subs.  7 — Commonwealth  v.  Ke- 
vin, 18  Pa.  Super.  Ct.  414;  affirmed,  202  Pa. 
23. 

24.  Acts  1901  No.  22 — People  v.  Phillips 
(Mich.)    91   N.  W.    616. 

25.  Laws  1893,  c.  308;  1901  c.  338 — People 
V.  Niagara  Fruit  Co.,  75  App.  Div.  (N.  Y.)  11. 

26.  Acts  1899,  p.  189;  this  act  forbidding 
manufacture  or  sale  of  adulterated  food  or 
drugs,  defining  foods  and  drugs,  and  stating 
what  shall  be  adulteration,  and  fixing  duties 
of  board  of  health  held  to  contain  only  one 
subject;  and  not  to  delegate  the  legislative 
power  because  it  authorized  the  board  to  fix 
a  standard  of  purity — Isenhour  v.  State,  157 
Ind.   517. 

27.  Milk — Isenhour  v.   State,   157  Ind.   517. 

28.  Commonwealth  v.  Leslie,  20  Pa.  Super. 
Ct.    529. 

29.  Pure  Pood  Law,  §  17 — People  v.  Morse 
(Mich.)    90   N.  W.   673. 


30.  Pub.  Acts,  1899.  No.  IIT — People  v. 
Skillman.  (Mich.)  89  X.  W.  330;  People  v. 
Morse    (Mich.)    90  N.   T\'.    673. 

31.  Isenhour  v.  State,  157  Ind.  517. 

32.  Laws  1893,  c.  338.  §  37 — People  v.  Laes- 
ser   (Sup.)    79   N.    Y.    Supp.    470. 

33.  People  V.  Laesser  (Sup.)  79  N.  Y.  Supp. 
470. 

34.  Isenhour  v.  State,  157  Ind.  517.  Held 
sufficient  that  proof  was  that  the  adulterated 
cream  Tvas  taken  from  a  ■wagon  bearing  the 
license  number  of  defendant,  and  driven  by 
defendant's  servant — People  v.  Hills,  64  App. 
Div.  (N.  Y.)  584.  Driver's  statement  that  he 
was  on  his  way  to  certain  places  of  deliv- 
ery not  followed  by  any  proof  of  any  de- 
livery is  insufficient  to  show  "sale  or  expos- 
ure''— People  V.  McDermott-Eunger  Dairy 
Co..  38  Misc.  (N.  Y.)  365.  Held  sufficient  to 
take  the  question  of  knowledge  to  the  jury 
that  defendant  objected  to  an  inspector's 
taking  milk  ■«'hich  -^vas  adulterated  though 
his  reason  was  that  he  needed  it  for  cus- 
tomers— Isenhour  v.  State,  157  Ind.  517;  suf- 
ficiency of  evidence  from  tests  of  a  sample 
taken  from  a  milk  vender's  cans — People  v. 
Laesser    (Sup.)    79    N.    Y.    Supp.    470. 

35.  N.  Y.  Agri.  Law,  §  37  and  though  the 
penalty  be  "at  least"  $25  and  not  more  than 


ADULTERY. 


29 


Private  persons  may  complain  of  a  violation  of  a  law  though  enforcement  of  it  be 
enjoined  on  certain  officers.^®  The  accusation  need  not  negative  an  exception  in 
favor  of  certain  compounds  used  as  food.^^  It  suffices  to  allege  presence  of  a 
"substance  injurious"  without  adding  a  charge  that  the  particular  adulterant 
was  so.^*  A  proviso  that  the  vendor  of  food  shall  sell  a  sample  for  analysis  if 
requested  does  not  require  that  the  accusation  shall  show  whether  any  was  so 
procured  nor  how  evidence  was  obtained.^^  Whether  samples  of  milk  on  which 
conviction  is  sought  were  fairly  taken  will  not  be  submitted  unless  there  is  a 
contrariety  of  evidence  thereupon.*"  Affidavits  under  the  New  York  laws  to 
sustain  an  application  to  enjoin  sale  of  adulterated  food  pending  prosecution 
should  show  statutory  elements  of  the  offense.*^ 

ADirLTERY.42 

The  offense. — Parties  must  dwell  together  in  a  common  residence,  to  '*live 
together"*^  and  a  single  act  is  not  "living  in  adultery."**  The  paramour  need  not 
be  married.*^ 

The  indictment. — No  continuendo  need  accompany  an  averment  as  on  a  cer- 
tain day.*^  The  words  "having  a  lawful  wife  other  than  A"  do  not  imply  that 
she  is  the  wife  of  accused  as  against  a  contrary  averment,  and  an  averment  as  to 
her  being  married  is  needless  in  such  a  case.*'^ 

Evidence. — The  same  rules  of  admissibility  apply  as  in  divorce  or  criminal 
conversation.**  The  fact  that  accused  went  into  hearsay  as  to  his  relation  with 
the  paramour,  does  not  open  the  way  to  the  state.*®  Circumstances  must  be 
brought  home  to  accused.^"  Immodest,  familiar  or  equivocal  conduct  may  be 
shown  on  the  question  of  intimacy,^^  or  it  may  be  proved  by  declarations  showing 
influence  with  the  paramour^^  in  connection  with  which  the  occasion  of  making 
them  may  be  proved.'*' 

Bad  repute  of  the  paramour  is  excluded."^*  The  fact  that  accused  being  able 
to  hear  it  laughed  aloud  when  the  guilty  wife  repulsed  her  husband  is  relevant. ^^ 


$100  the  smaller  sum  may  be  collected  de- 
spite the  absence  of  a  provision  as  to  -who 
shall  fix  the  amount — People  v.  Bremer,  69 
App.    Div.    (N.    T.)    14. 

36.  Board  of  health;  Acts  1899,  p.  189 — 
Isenhour  v.  State,  157  Ind.  517. 

37.  Nor  allege  that  any  standard  of  pur- 
ity had  been  fixed  under  a  statute  which 
merely  authorized  the  health  board  so  to 
do,  but  ■which  in  any  event  declared  a  pen- 
alty— Isenhour  v.  State,  157  Ind.  517. 

38.  Formaldehyde — Isenhour  v.  State,  157 
Ind.  517. 

39.  Acts  1899,  p.  189 — Isenhour  v.  State, 
157  Ind.   517. 

40.  The  inspectors  testified  without  con- 
tradiction that  the  milk  was  thoroughly 
stirred  before  sampling- — People  v.  Laesser 
(Sup.)    79   N.    T.    Supp.    470. 

41.  Laws  1893,  c.  338,  §  10 — People  v. 
Wlndholz,  68  App.  Div.  (N.  Y.)  552.  Injunc- 
tion against  further  sale,  in  N.  T.  not  grant- 
able  by  county  judge.  See  statutes — People 
V.  Windholz,  68  App.  Div.  (N.  T.)   552. 

42.  Matters  of  law  and  procedure  com- 
mon to  all  crimes  see  Criminal  Law;  Crim- 
inal Procedure;  Indictment,  etc.  Also  see, 
Fornication;  Disorderly  Conduct.  Civil  Lia- 
bility, see  Husband  and  Wife;  Seduction. 
Ground   for   divorce,   see   Divorce. 


43.  Massey  v.  State  (Tex.  Cr.  App.)  65  S. 
W.  911. 

44.  Penal  Code,  §  381 — Lawson  v.  State 
(Ga.)    42  S.  B.   752. 

45.  Lyman  v.    People,    98    111.   App.    3S6. 

46.  "Living  in  open"  adultery — Lyman  v. 
People,   198  111.  544. 

47.  Lyman  v.  People,  198  111.  544. 

48.  State  v.  Kimball,  74  Vt.  223.  Consult 
Divorce;   Husband   and   Wife. 

49.  Guinn  v.  State  (Tex.  Cr.  App.)  65  S. 
W.    376. 

50.  Hat  and  coat  found  where  there  had 
been  wallowing  on  the  ground  but  no  proof 
of  ownership  nor  that  accused  and  paramour 
had  been  on  the  ground — Guinn  v.  State 
(Tex.   Cr.  App.)    65   S.   W.    376. 

51.  Getting  drunk  together,  the  one  fall- 
ing info  the  other's  lap,  going  riding  to- 
gether, going  as  by  prearrEmgement  to  a 
negro's  house — Guinn  v.  State  (Tex.  Cr.  App.) 

65  S.  W.   376. 

52.  Professions  of  ability  to  induce  him  to 
furnish  bail  for  a  third  person — Roller  v. 
State   (Tex.   Cr.  App.)    66   S.  W.   777. 

53.  Making  arrest  of  third  person  at  home 
of  accused — Roller  v.   State    (Tex.   Cr.   App.) 

66  S.    W.    777. 

54.  Guinn  v.  State  (Tex.  Cr.  App.)  65 
S.   W.  376. 


30 


ADVERSE  POSSESSION. 


The  corpus  delicti  need  not  be  separately  shown.^^  Adulterous  inclination  or  un- 
due attentiveness  together  with  equivocal  meetings  may  suffice  to  prove  the  of- 
fense.^" 

Practice  and  trial. — The  indictment  is  not  vitiated  because  a  transcript  re- 
moving the  cause  unnecessarily  names  the  offense  and  misdescribes  it.^^  The 
injured  spouse  may  insist  on  a  dismissal  if  given  the  sole  right  to  prosecute.^* 
It  is  not  necessary  that  both  though  jointly  indicted  be  tried  together.'^''  If  the 
offense  be  a  misdemeanor  no  election  is  compellable.^^  Instructions  need  not  de- 
fine "adultery."^^  Whether  there  was  in  fact  a  cohabitation  together  in  open 
adultery  under  a  statute  so  defining  the  crime  should  be  submitted  to  the  jury 
and  it  is  not  sufficient  to  put  to  them  only  the  question  whether  defendants  "co- 
habited together  and  had  intercourse."^^  It  is  not  error  unless  made  so  by  objec- 
tion that  the  bastard  offspring  of  the  adulterer  was  in  court  in  view  of  the  jury.®* 


1 


ADVERSE  POSSESSION.65 

§  1.  Estates  and  property  subject  to  adverse  possession. — There  can  be  no 
adverse  holding  of  public  property  against  the  United  States  or  a  state,**^  or  a 
municipal  corporation  holding  in  trust  for  the  public,®'^  so  a  street  cannot  be 
adversely  held/^  as  where  abutting  owners  encroach.®^  Allej^s  dedicated  for  the  com- 
mon use  of  particular  lots/**  or  in  Minnesota,  highways''^  are  exceptions  to  this 
rule.  Statutes  in  some  states,  exempt  railroad  lands  from  limitation  acts.'^^ 
Such  acts  are  not  grants  of  special  privileges.'^'     A  town-site  excepted  from  a 


55.  Campbell  v.  State  (Ala.)  32  So.  635.  A 
whispered  statement  by  the  paramour  to  the 
witness  that  a  man  just  then  getting  into 
bed  with  them  was  accused  is  hearsay  if  ac- 
cused could  not  have  heard  it — Guinn  v. 
State  (Tex.  Cr.  App.)   65   S.  W.  376. 

56.  State  V.  Kimball,  74  Vt.  223. 

57.  Amorous  letters  written  after  arrest 
— Monteith  v.  State,  114  Wis.  165  and  see 
State  V.  Schaedler   (Iowa)    90  N.  W.  91. 

Evidence  examined — Lyman  v.  People,  198 
111.  544  ("living  in  open"  adultery,  also  proof 
of  marriage);  State  v.  Kimball,  74  Vt.  223; 
State  V.  Schaedler  (Iowa)  90  N.  W.  91;  sub- 
sequent acts  held  sufficient  to  show  inclina- 
tion, and,  with  other  facts,  to  convict — 
State  V.  More,  115  Iowa,  178;  evidence  not 
sufficient  to  show  a  "living  together" — Bur- 
nett v.   State   (Tex.  Cr.  App.)   70  S.  "W.  207. 

58.  Adultery  called  "Adultery  and  forni- 
cation." Code  Cr.  Proc,  art.  471 — Roller  v. 
State  (Tex.  Cr.  App.)   66  S.  W.  777. 

59.  Hosford  V.  Gratiot  Circuit  Judge 
(Mich.)    88   N.   W.    627. 

60.  Lyman  v.  People,   98  111.  App.  386. 

61.  Massey  v.  State  (Tex.  Cr.  App.)  65 
S.  W.  911. 

62.  Lyman  v.  People,  198  111.   544. 

63.  Tomlinson  v.  People,  102  111.  App.  642. 

64.  Green  v.  State  (Tex.  Cr.  App.)  70 
S.   W.   22. 

65.  Bar  of  actions  concerning  real  prop- 
erty not  dependent  on  possession,  see  Limita- 
tion of  Actions. 

Easements  may  be  gained  by  prescriptive 
use  and  in  like  manner  a  dedication  may  be 
presumed  from  long  use,  etc.,  see  Ease- 
ments;   Dedication. 

Loss  of  property  rights  by  abandonment, 
see    Property. 

66.  Schlosser  v.  Hemphill  (Iowa)  90  N.  W. 
814;  U.  S.  V.  Dastervignes,  118  Fed.  199. 


67.  Norrell  v.  Augusta  R.  &  Blec.  Co. 
(Ga.)    42   S.    B.    466. 

Tide  land  belonging  to  a  city  is  not  subject 
to  state  possessory  acts;  Cal.  Statutes  1852, 
p.  158 — United  Land  Ass'n  v.  Pacific  Imp.  Co. 
(Cal.)    69  Pac.   1064. 

68.  City   of  Dekalb  v.  Luney,   193  111.   185. 

As  where  a  railroad  occupied  by  an  em- 
bankment and  culvert — Kelly  v.  Pittsburgh 
C.  C.   &  St.  L.  R.   Co.,   28   Ind.  App.   457. 

Where  possession  was  under  a  deed  from 
the  dedicator,  subsequent  to  the  execution  of 
the  deed  to  the  city — Norrell  v.  Augusta  R. 
&  Elec.   Co.    (Ga.)    42   S.   E.    466. 

69.  Shirk  v.  Chicago,   195  111.   298. 

70.  Hegan  v.  Pendennis  Club,  23  Ky.  Law 
R.    861. 

71.  Prior  to  Laws  1899,  c.  65 — City  of 
Hastings    v.    Gillitt,    85   Minn.    331. 

72.  Railroad  land  if  within  the  boundar- 
ies condemned  and  shown  by  the  recorded 
award,  though  outside  the  track  and  not  oc- 
cupied, cannot  be  adversely  held — Vermont 
St.  §  3745;  Drouin  v.  Boston  &  M.  R.  Co. 
(Vt.)  52  Atl.  957;  construing  Rev.  St.  1899, 
§  4270,  exempting  lands  granted  to  public  use, 
in  a  case  where  the  land  ■was  designated  for 
railroad  stock  yards  and  grounds  on  the  plat, 
but  not  occupied  for  railroad  purposes — St. 
Joseph,  St.  L.  &  S.  F.  R.  Co.  v.  Smith  (Mo.) 
70    S.   W.    700. 

73.  Drouin  v.  Boston  &  M.  R.  Co.  (Vt.) 
52  Atl.  957.  In  a  note  to  Southern  Pac.  Co.  v. 
Hyatt,  132  Cal.  240,  64  Pac.  272,  51  Am.  L. 
Reg.  236,  the  cases  concerning  acquisition  of 
a  railroad  right  of  way  by  adverse  posses- 
sion are  collected.  The  California  cases 
against  the  possibility  of  adverse  holding 
are  placed  on  the  double  ground  that  the 
right  of  way  is  held  for  public  use  and  is  a 
public  highway — Southern  Pac.  Co.  v.  Burr, 
86  Cal.  279,  24  Pac.  1032.     That  a  railway  is 


ADVERSE  POSSESSION. 


31 


deed  but  actually  enclosed  and  occupied  may  be  acquired  by  a  holding  sufficiently 
continued^*  In  the  case  of  government  land,  possession  may  become  adverse  as 
soon  as  the  entryman  is  entitled  to  a  patent,"  and  a  right  in  public  lands  which 
may  be  perfected  and  rendered  capable  of  assertion  may  be  barred.''® 

§  2.  Against  whom  available. — Adverse  possession  will  not  avail  against  the 
state,"'  or  a  municipal  corporation,  or  against  minors.'^  After  right  of  entry 
accrues  to  them,  possession  may  be  adverse  to  the  remaindermen.'"  In  Illinois 
possession  by  an  heir  is  not  adverse  to  the  unassigned  dower  right  of  the  widow.®" 
Statutes  of  limitation  do  not  run  against  a  woman  during  coverture,*^  but  may 
run  against  one  through  whom  she  subsequently  claims. ^- 

§  3.  To  whom  availahle.^^ — A  railroad  company  may  hold  adversely.®*  A 
city  as  trustee  for  the  public  cannot  hold  for  its  own  benefit.®^  A  city  cannot  ac- 
quire title  by  adverse  possession  through  the  erection  of  a  building  on  ground  to 
which  it  makes  no  claim  except  as  part  of  a  public  street.*®  One  holding  by  pur- 
chase may  also  assert  limitation  acts.®'  A  judgment  purchaser  may  hold  against 
a  claim  under  a  mortgage  junior  to  the  judgment.®® 

§  4.  Definition  and  essential  elements. — All  statutory  elements  must  be 
united,®*  and  there  be  actual  possession,""  before  action  brought."^  Enclosure 
may   be   required."^     Occupancy   must   be   open,    continuous,    notorious    and    ad- 


a  public  highway,  is  announced  in  Olcott  v. 
Fond  dn  Lac  County  Sup'rs,  16  "Wall.  (U.  S.) 
67S.  21  Law.  Ed.  382.  and  in  accord  therewith 
are  Moran  v.  Ross,  79  Cal.  159,  21  Pac.  547; 
St.  J.  &  D.  C.  R.  Co.  V.  Baldwin.  103  U.  S.  426, 
26  Law.  Ed.  578;  Drouin  v.  Boston  &  M.  R. 
Co.  (Vt.)  52  Atl.  957;  Philadelphia  R.  R.  Co. 
V.  Obert,  109  Pa.  193;  Pennsylvania  R.  Co.  v. 
Freeport.  138  Pa.  91;  Bassett  v.  Pennsylvania 
R.  Co.,  201  Pa.  226.  In  a  number  of  other 
jurisdictions  it  Is  held,  however,  that  rail- 
roads are  not  public  highways  and  that  the 
statute  will  run  against  them.  This  is  the 
rule  announced  in  Northern  P.  R.  Co.  v,  Ely, 
25  Wash.  384,  65  Pac.  555;  54  L.  R.  A.  526, 
and  the  court  cites  in  accord  with  its  view, 
Illinois  Cent.  R.  Co.  v.  Houghton,  126  111.  233; 
Illinois  Cent.  R.  Co.  v.  O'Connor,  154  111.  550; 
Illinois  Cent.  R.  Co.  v.  Moore,  160  111.  9;  Don- 
ahue V.  Illinois  Cent.  R.  Co.,  165  111.  640;  Illi- 
nois Cent.  R.  Co.  v.  Wakefield,  173  111.  564; 
Paxton  V.  Yazoo  &  M.  V.  R.  Co.,  76  Miss.  536; 
Matthews  v.  Lake  Shore  &  M.  S.  R.  Co.,  110 
Mich.  170.  The  commentator  states  that  also 
In  accord  with  this  holding  are  Coleman  v. 
Flint  &  P.  M.  R.  Co.,  64  Mich.  160;  Pitts- 
burgh, C.  C.  &  St.  L.  R.  Co.  v.  Stickley,  155 
Ind.  312;  Wilbur  v.  Cedar  Rapids  &  M.  R.  Co. 
(Iowa)  89  N.  W.  101;  Norton  v.  London  & 
N.  W.  R.  Co.,  13  Ch.  Div.  268  (which  holds 
that  the  statute  runs  against  the  superfluous 
land  of  a  railroad)-;  Bobbett  v.  South  East- 
ern R.  Co..  9  Q.  B.  Div.  424  (where  it  is  held 
that  it  runs  against  the  railroad  whether  the 
land  in  question  is  superfluous  or  not) ;  Erie 
&  N.  R.  Co.  V.  Rosseau,  17  Ont.  App.  483;  N. 
P.  R.  Co.  V.  Hasse,  28  Wash.  353,  68  Pac.  882. 

74.  The  original  grantee  held  for  17  years 
and  his  wife  after  a  conveyance  to  her  for 
13  years,  under  color  of  title  of  the  entire 
tract,  the  land  having  been  enclosed  25  years 
— Hohl  V.   Osborne   (Iowa)    92  N.  W.   697. 

7.5.     Baty  V.  Elrod   (Neb.)    92  N.  W.  1032. 

76.  Robles  V.  Cooksey  (Tex.  Civ.  App.)  70 
S.  W.  584. 

77.  Kolb  V.  Jones,  62  S.  C.  193,  and  cases 
cited  under  §  1,  supra.     There  can  be  no  hold- 


Turner    (Tex.    Civ.    App.)    70 


Ing  of  a  bed  of  a  dried  up  body  of  water 
owned  by  either  the  federal  government  or 
the  state — Carr  v.  Moore  (Iowa)  93  N.  W.  52; 
Bryan  v.   Same.   Id. 

78.  Mobile  Transp.  Co.  v.  City  of  Mobile, 
128  Ala.  335;  Norrell  v.  Augusta  R.  &  El.  Co. 
(Ga.)  42  S.  E.  466;  claim  under  deed  from 
ti-ustee  of  minor's  estate — Hunter  v.  Hunter, 
63  S.  C.  78. 

79.  Widow  who  was  life  devisee  procured 
legal  title  by  payment  of  balance  of  pur- 
chase money  due  on  bond  and  conveyed  to 
one  who  held  adversely  to  the  remainder- 
men more  than  ten  years  after  the  death  of 
the  widow — Love  v.   Butler,   129  Ala.  531. 

80.  So  held  under  twenty  year  section  of 
the  limitation  law — Brumback  v.  Brumback, 
198   in.   66. 

81.  Estes  v.  Turner  (Tex.  Civ.  App.)  70 
S.   W.    1007. 

82.  Estes 
S.    W.    1007. 

83.  See  post,  §  5,  as  to  particular  rela- 
tionships affecting  hostility  of  claim. 

84.  Ohio  River  R.  Co.  v.  Johnson,  50  W. 
Va.    499. 

85.  Kansas  City  v.  Scarritt,  169  Mo.  471. 

86.  This  case  seems  to  depend  on  the  fact 
that  the  city  has  no  power  to  erect  build- 
ings on  land  which  It  had  dedicated  for 
street  purposes — pfettlt  v.  Grand  Junction 
(Iowa)    93   N.  W.   381. 

87.  Adams   v.  Hopkins    (Cal.)    69  Pac.   228. 

88.  Mortgagees  cannot  enforce  a  lien  after 
ten  years  (Rev.  St.  Wis.  1898.  §  4211) — Gunni- 
son V.  Chicago,  M.  &  St.  P.  .R.  Co.  (Wis.) 
117  Fed.   629. 

89.  Maxwell  v.  Cunningham,  50  W.  Va. 
298.  Must  be  open,  notorious,  exclusive  and 
adverse  under  claim  and  color  of  title  against 
the  true  owner  and  the  world.  [These  are 
the  words  of  the  syllabus  by  the  court  but 
the  opinion  does  not  announce  as  an  unquali- 
fied rule  that  color  of  title  Is  a  prime  ele- 
ment of  adverse  possession.] — Beer  v.  Dalton 
(Neb.)    92  N.  W.   593. 

90.  So    held    In    case    of    a    burial    lot — 


32 


ADVERSE  POSSESSION. 


verse,^^  and  possession  must  be  apparent  to  other  claimants.^*  There  must  be  no 
actual  occupancy  by  others/^  though  it  seems  an  encroacher  need  not  be  evicted 
where  there  is  no  knowledge  of  adverse  claim.  Erection  of  telegraph  lines  with- 
out claim  of  title  is  not  adverse  possession.^'  A  city  cannot  acquire  land  for  a 
park  by  mere  public  use  without  a  claim  by  the  authorities  that  it  is  public  prop- 
erty. ®® 

§  5,  Hostility. — Possession  must  be  adverse,^^  throughout  the  entire  period.^ 
Permissive  possession  is  not  sufficient,^  as  where  under  a  belief  that  the  land  will 
be  given  the  occupants.^  Hostility  may  be  unnecessary  where  possession  is  open, 
notorious  and  peaceable.*  The  occupant  need  not  give  notice  of  his  claim  to  the 
true  owner  in  words.^ 

In  the  absence  of  a  confidential  or  trust  relation,  notice  of  adverse  holding 
or  knowledge  thereof  need  not  be  shown,®  though  where  possession  is  originally 
subordinate  the  hostility  must  be  unequivocal  and  the  true  owner  have  notice,^  so 
where  a  tenant  conveys  all  his  right,  title  and  interest,  possession  by  his  grantee 
is  not  adverse  to  the  landlord.®  A  trustee  while  the  trust  continues  cannot  hold 
adversely  to  the  beneficiary.^  Permissive  possession  need  not  be  surrendered  that 
it  may  become  adverse.^"     An  heir  who  is  also  an  executor  is  not  presumed  to 


Meig-gs  V.  Hoagland,  68  App.  Div.  (N.  T.)  182. 
Continuous  use  for  grazing'  and  occasional 
occupation  for  cutting'  •«^ood  is  not  sufBcient 
— McCook  V.   Crawford,    114   Ga.    337. 

91.  Jones  v.  Patterson,  23  Ky.  Law  R. 
1838;  Patterson  v.  Davis,  Id.;  Davis  v.  Pat- 
terson, Id. 

92.  To  secure  benefit  of  7  years  statute — 
Asher  Lumber  Co.  v.  Clemmons,  23  Ky.  Law 
R.    1771. 

93.  Knight  V.  Denman  (Neb.)  90  N.  W.  863. 

94.  McCook  V.  Crawford,  114  Ga.  337.  No- 
tice to  the  true  owner  is  shown  where  with 
the  adverse  claimant  he  agrees  to  the  con- 
struction of  buildings  over  the  true  line — 
Klinkner  v.  Schmidt,  114  Iowa,  695.  Under 
Kurd's  Rev.  St.  1899,  c.  1883,  §  7,  it  is  in- 
sufficient to  drive  to  the  property  occasion- 
ally and  sometimes  pluck  flowers  thereon. — 
Stalford   v.    Goldring.   197   111.    156. 

95.  McCook  V.   Crawford,   114  Ga.   337. 

96.  Lackey  v.  Bennett  (Tex.  Civ.  App.) 
65   S.  W.   651. 

97.  Andrews  v.  Delhi  and  S.  Tel.  Co.,  36 
Misc.    (N.  Y.)    23. 

98.  The  owners  were  meantime  improv- 
ing and  controlling  the  land  and  enclosed  it 
entirely  at  times — Town  of  Manitou  v.  Inter- 
national Trust  Co.  (Colo.)  70  Pac.  757;  Same 
V.    Townsend,    Id. 

99.  Necessity  therefor  is  not  removed  by 
Session  Laws.  Colorado,  1893,  p.  327,  §  1,  pro- 
viding that  actions  to  recover  land  must 
be  brought  within  twenty  years  after  the 
claimant  has  been  seized  or  possessed  of  the 
premises — Evans  v.  "Welch,  29  Colo.  355.  68 
Pac.  776.  So  held,  where  persons  to  whom 
lots  were  conveyed  held  possession  of  a  strip 
designated  as  an  out  lot — Evans  v.  "Welch, 
29  Colo.  355,  68  Pac.  776.  "Where  a  wall  is 
erected  under  a  license,  its  mere  continuance 
for  20  years  does  not  give  a  right  by  adverse 
possession — Percival  v.  Chase  (Mass.)  65  N. 
E.  800;  Chase  v.  Percival,  Id.  When  a  per- 
son goes  on  land  under  contract  ■with  another 
as  owner  and  builds  houses  but  within  8 
years  before  suit  Is  brought  makes  three  at- 
tempts  to  file  on   a   portion  as  a  homestead. 


he  cannot  be  regarded  as  holding  for  the  per- 
son under  whom  he  entered — "Watts  v.  Bruce 
(Tex.  Civ.  App.)  72  S.  W.  258.  A  right  to 
water  from  a  spring  cannot  be  acquired  by 
adverse  possession  by  taking,  where  not 
shown  to  be  under  a  claim  of  right,  adverse 
to  plaintiff  or  his  grantor — Hunter  v.  Emer- 
son   (Vt.)    53    Atl.    1070. 

1.  Knight  V.  Denman   (Xeb.)   90  N.  "W.  863. 

2.  Hicks  Bros.  v.  Swift  Creek  Mill  Co.,  133 
Ala.  411,  57  L.  R.  A.  720.  So  held,  where  the 
claimant  lived  with  his  father,  recognizing 
his  father's  title  until  the  father's  death — 
Butler  V.  Butler,  133  Ala.  377.  "Where  a  rail- 
road company  goes  into  possession  on  an 
agreement  for  a  deed  in  case  tracks  and  a 
station  are  constructed — Southern  Cal.  R.  Co. 
V.  Slauson  (Cal.)  68  Pac.  107.  "Where  entry 
was  permissive,  subsequent  acts  indicate  that 
it  remained  so  and  claimants  have  taken  a 
lease  of  the  premises — McClenahan  v.  Stev- 
enson  (Iowa)    91  N.  "W.   925. 

3.  McClenahan  v.  Stevenson  (Iowa)  91  N. 
"W.    925. 

4.  Toltec  Ranch  Co.  v.  Eabcock,  24  Utah, 
183,   66   Pac.    876. 

5.  Jangraw   v.   Mee    (Vt.)    54   Atl.    189. 

6.  Bryce  v.  Cayce.  62  S.  C.  546.  As  where 
t-wo  persons  are  living  together  on  land  of 
■which  one  has  title,  the  holding  of  the  person 
"Without  title  is  not  adverse,  though  the  re- 
lation of  the  parties  is  not  that  of  husband 
and  wife — Lloyd  v.  Rawl.  63  S.  C.  219. 

7.  Maxwell  v.  Cunningham,  50  "W.  Ya..  298; 
Stevenson  v.  Black,  168  Mo.  549.  Notice  of 
adverse  rights  is  not  afforded  by  cheap 
shanties  erected  by  squatters  on  city  lots — 
Blake  v.  Shriver,  27  "Wash.  593.  68  Pac.  330. 

8.  Bruce  v.  Richardson  (Tex.  Civ.  App.) 
64    S.    "W.    785. 

9.  Dresser  v.  Travis,  39  Misc.  (N.  T.)  358. 
So  held  though  the  trustee  had  received 
from  the  beneficiary  a  deed  of  the  subject- 
matter  void  because  the  grantor  was  of  un- 
sound mind — Spicer  v.  Holbrook,  23  Ky.  Law 
R.    1812. 

10.  "Whelchel  v.  Gainesville  &  D.  Elec.  R. 
Co.    (Ga.)    42   S.   E.    776. 


ADVERSE  POSSESSION. 


33 


hold  adversely."  A  widow's  occupancy  begun  in  subordination  to  the  title  of  her 
husband  is  not  adverse  to  his  heirs/-  and  the  rule  applies  to  a  purchaser  from 
certain  heirs.^^  One  entitled  to  an  undivided  interest  in  land  as  an  heir  may 
purchase  from  one  who  has  acquired  an  interest  through  a  tax  sale  and  hold  ad- 
versely." Occupancy  by  the  husband  may  be  adverse  to  the  wife's  statutory 
estate  after  her  deat'h.^^'  One  continuing  on  a  homestead  entry  after  its  cancella- 
tion and  a  grant  of  the  land  to  a  railroad  holds  adversely.^«  A  grantor  may  hold 
adversely  to  his  grantee,"  but  possession  under  a  contract  of  purchase  uncomplied 
with  is  not  adverse/*  as  when  there  is  a  default  in  payment  of  the  purchase 
money.'^  The  vendee  must  be  entitled  to  a  deed.^"  Mere  occupancy  after  a  con- 
veyance is  presumed  to  be  in  subordination  to  the  title  conveyed,-^  as  where  grantees 
are  children/^  though  not  where  there  is  a  re-entry  after  conveyance  with  coven- 
ants of  warranty.^^  An  heir  in  joint  possession  with  a  widow  who  has  a  dower 
interest  does  not  cause  his  wife  to  hold  adversely  by  a  voluntary  conveyance  to 
her.2*  Where  the  vendee  is  in  partial  occupancy  the  vendor  cannot  hold  the  un- 
occupied portion  adversely  without  notice/"*  as  where  a  vendor  remains  in  posses- 
sion of  a  portion  of  the  premises  described  in  his  conveyance  but  makes  no  claiiti 
of  ownership  to  more  than  the  amount  of  land  remaining  in  him  according  to  the 
terms  of  his  conveyance.^®  Possession  under  a  claim  that  a  conveyance  was  in 
trust  for  the  occupants  is  not  hostile  to  the  grantee/^  or  permissive  possession 
under  a  deed  fraudulent  as  to  creditors.^*  Vendees  holding  subject  to  a  vendor's 
lien  cannot  claim  their  possession  as  adverse. ^^ 

Mortgagor  and  mortgagee. — A  constructive  mortgagee  in  possession  under 
an  agreement  that  rent  shall  be  applied  to  payment  of  taxes  and  compensation  of 
the  mortgagee,  does  not  hold  adversely,*"  or  a  mortgagee  in  possession  who  accepts 
payments  on  the  dobt.^^  The  grantee  of  a  mortgagor  cannot  assert  title  as  against 
one  acquiring  title  through  a  sale  under  the  mortgage,  where  the  grantee  has  by 
taking  a  contract  for  a  deed  from  the  purchaser  at  such  sale,  recognized  its 
validity.^^  Foreclosure  to  which  a  grantee  of  the  mortgagor  is  not  made  a  party 
does  not  alter  the  character  of  his  possession  as  being  consistent  and  subject  to  the 
title  under  the  mortgage. ^^  After  foreclosure  of  a  mortgage  by  exercise  of  the 
power  of  sale  the  mortgagor  may  hold  possession  adversely,  though  the  mortgagee 


11.  Walker  v.  Killlan.   62  S.  C.   482. 

12.  Smith  V.  Cunningham,  79  Miss.  425. 

13.  Purchasers  from  certain  heirs  are  re- 
garded as  holding-  in  amity  ■with  the  other 
heirs  and  -widow — Sergent  v.  North  Cumber- 
land Mfg.  Co.,  23  Ky.  Law  R.  2226. 

14.  It  will  not  amount  to  a  mere  redemp- 
tion by  an  heir,  and  limitation  act,  §  6, 
Kurd's  Rev.  St.  1899,  p.  1117,  will  apply — 
Richards  v.  Carter.  201  111.  165. 

15.  Lide  V.  Park   (Ala.)   33  So.  175. 

16.  This  holding  was  accompanied  by  acts 
of  dominion  such  as  fencing,  cultivation, 
erection  of  buildings,  and  payment  of  taxes — 
Wilbur  V.  Cedar  Rapids  &  M.  R.  R.  Co.  (Iowa) 
89  N.  W.  101. 

17.  Mannix  v.  Rlordan,  75  App.  Dlv.  (N. 
T.)    135. 

18.  Alsup  V.  Stewart,  194  111.  595;  Jenk- 
ins V.  McMichael,  17  Pa.  Super.  Ct.  476. 

19.  Thompson  v.  Button  (Tex.  Civ.  App.) 
69  S.  W.  641;  judgment  reversed  on  rehear- 
ing, Id.  996.  So  held  where  after  breach  in 
the  bond  a  vendor  retook  and  held  posses- 
sion for  10  years  without  accounting  for 
rents  and  profits  or  otherwise  recognizing 
the  purchaser — Love  v.  Butler,  129  Ala.  531. 

Cur.  Law  3. 


20.  Beer  v.  Dalton  (Neb.)  92  N.  W.  593.    • 

21.  Collins  V.  Colleran,  86  Minn.  199. 

22.  Continued  for  eight  years — Tully  v. 
Tully,   137  Cal.   60,  69  Pac.   700. 

23.  Horbach  v.  Boyd   (Neb.)    89  N.  W.  644. 

24.  Construing  Rev.  St.  111.,  c.  83,  §  6 — 
Brumback   v.   Brumback,    198   111.    66. 

25.  So  held  where  a  portion  of  land  grant- 
ed a  railroad  was  not  used  by  the  company — 
Graham  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  69 
Ark.    562. 

26.  In  this  case  the  vendor  did  not  know 
where  the  boundary  of  his  conveyance  went 
and  although  he  cultivated  a  portion,  made 
no  improvements  and  claim  of  title — Woods 
V.  Texas  Land  &  Loan  Co.  (Tex.  Civ.  App.)  67 
S.  W.  155. 

27.  McClenahan  v.  Stevenson  (Iowa)  91  N. 
W.    925. 

28.  McClenahan  v.  Stevenson  (Iowa)  91 
N.    W.    925. 

29.  Henry  y.  McNew  (Tex,  Civ.  App.)  69 
S.   W.    213. 

30.  Decker  v.  Decker  (Neb.)   89  N.  W.  795. 

31.  Goodman  v.   Parelra,    70   Ark.    49. 

32.  Alsup  v.   Stewart,   194  111.   595. 

33.  Alsup  V.   Stewart,   194  111.  595. 


34 


ADVERSE  POSSESSION. 


purchases.'*  As  against  a  claim  of  adverse  possession  asserted  in  partition,  it  is 
proper  to  show  that  chiimant  entered  as  a  tenant.^^ 

Error  as  to  boundary. — If  occupancy  is  due  to  a  mere  mistake  as  to  the  loca- 
tion of  a  line  neither  of  the  adjoining  owners  can  claim  adversely,^®  but  there 
may  be  adverse  occupancy,^^  as  where  there  is  a  claim  of  ownership  to  the  line,^* 
or  where  adjoining  owners  each  claim  to  own  beyond  a  fence  erected  without  re- 
gard to  the  actual  boundary/^  but  not  where  the  occupant  makes  no  claim  to  land 
other  than  his  lot.*° 

Recognition  of  a  superior  tiile  where  a  portion  of  a  lot  is  held  adversely  does 
not  result  from  the  securing  of  a  license  to  use  the  remainder.*^  Occupant  may 
purchase  outstanding  claims  of  portions.*^  Assertions  in  legal  proceedings  of  aa 
intent  not  to  claim  a  fee,  will  prevent  an  adverse  holding.*' 

Merger  or  attornment. — Adverse  holding  ceases  if  adjoining  tracts  become 
the  property  of  the  same  owner.**  Attornment  to  the  true  owner  interrupts  pos- 
session.*^ 

?  6.  Sufficiency  of  possession. — Actual  occupancy  and  possession  may  suffice 
without  enclosure,  cultivation  and  improvement.*®  Occasional  entries  or  cuttings 
of  timber  are  not  sufficient.*^  The  possession  should  be  distinct  and  entire.** 
Possession  must  be  exclusive.*®  Adverse  possession  will  not  run  against  tenants 
in  common  when  any  tenant  is  in  possession.^"  Actual,  physical  possession  may 
be  required  .^^  It  may  be  by  tenant. ''^  Permission  by  the  claimant  of  appropria- 
tion of  the  land  bv  others  mav  be  sufficient  to  defeat  his  claim."     Acts  consistent 


34.  Garren  v.  Fields.  131  Ala.  304. 

35.  Construing  Code  X.  C,  §  147.  provid- 
ing- that  where  a  tenancy  is  established,  a 
tenant's  possession  -^111  be  deemed  the  land- 
lord's until  the  expiration  of  twenty  years 
from  the  last  payment  of  rent — Bulluck  v. 
Bulluck.   131   N.    C.    29. 

36.  Small  V.  Hamlet.  24  Ky.  Law  R.  238; 
Patton  V.    Smith    (Mo.)    71   S.    W.   187. 

37.  Where  land  was  enclosed  and  culti- 
vated for  more  than  fifteen  years — Diers  v. 
Ward  (Minn.)  92  N.  "W.  402:  as  where  the 
strip  in  q'lestion  Is  cultivated  enclosed  and 
building-s  erected  thereon — "Webb  v.  Rhodes, 
28  Ind.  App.  393;  occupancy  under  belief  that 
land  is  part  of  another  tract  and  that  the 
true  boundary  is  different  than  it  really  is — 
Baty  V.   Elrod   (Neb.t    92  N.  W.   1032. 

3S.  Barrett  v.  Kelly.  131  Ala.  378.  As 
where  the  occupant  repudiated  subsequent 
surveys — Gist  v.  Doke    (Or.)    70  Pac.   704. 

39.  Fifteen  years  occupancy — Brown  v. 
Clark.  73  Vt.  233. 

40.  Palmer  v.  Osborne.  115  Iowa.  714. 

41.  O'Flaherty  v.  Mann.  196  111.   304. 

42.  Hohl  V.  Osborne   (Iowa)   92  N.  W.  697. 

43.  So  held  where  a  city  disclaimed  an 
intent  to  hold  the  fee  of  land  donated  for  a 
g-rave  yard,  which  had  become  part  of  the 
city  and  only  asserted  the  claim  to  it  as  a 
grave  yard  with  rlarht  of  burial  therein — 
Kansas  City  v.  Scarritt,  169  Mo.  471. 

44.  Patton  V.  Smith  (Mo.)   71  S.  W.  1S7. 

4.~.  Illinois  Steel  Co.  v.  Budzisz  (T^'is.)  90 
N.    W.    1019. 

46.  Revised  Statutes.  §§  4213  and  4214 — 
Batz  V.  Woerpel.  113  Wis.  442.  Continuous 
occupancy  for  20  years  with  enclosure,  cul- 
tivation and  claim  of  ownership  is  sufficient. 
Rev.  St.  1898.  ?5  1225.  4214 — Oilman  v.  Brown. 
115  Wis.  1.  Where  a  strip  of  land  is  en- 
closed for  16  years  and  used  as  a  passage 
way  for  more  than  20  years,  it  is  sufficient  to 


sustain  title — Batz  v.  Woerpel,  113  "Wis.  442. 
It  is  not  sufficient  to  blaze  boundaries  on  tim- 
ber s^wamp  lands,  cut  a  small  amount  of  tim- 
ber and  occasionally  warn  off  trespassers — 
Travers  v.  McElvain.  2^0  111.  377.  Enclosure 
Is  not  necessary  if  there  is  actual  possession 
with  acts  sufficient  to  give  unequivocal  no- 
tice of  an  adverse  claim  to  all  others — Zepeda 
v.  Hoffman    (Tex.  Civ.  App.)   72  S.  W.    443. 

47.  Combs  v.  Combs  (App.)  24  Ky.  Law  R. 
1691.  Where  defendant  was  never  in  actual 
possession,  though  her  tenant  occupied  a 
cabin  in  a  small  field  therein  for  a  time,  but 
defendant  lived  on  an  adjoining  tract,  and 
timber  was  occasionally  cut  and  removed 
from  the  land  in  controversy  under  contract 
•with  her,  there  is  no  evidence  of  adverse  pos- 
session— Patterson  v.  T.  J.  Moss  Tie  Co. 
(App.)    24   Ky.   Law   R.    1571. 

48.  So  held  vrhere  possf^ssion  -^vas  of  dis- 
tinct unidentified  parts  l^ss  than  the  entire 
tract — Sparks  v.  Hall  (Tex.  Civ.  App.)  67  S. 
W.    916. 

49.  Building  a  fence  around  a  spring  is 
not  sufficient  if  not  so  constructed  as  to  ex- 
clude other  persons  from  using  the  water, 
and  If  it  does  not  appear  that  it  was  done  in 
the  assertion  of  a  right  to  the  spring  or  Its 
protection — Hunter  v.  Emerson  (Vt.)  53  Atl. 
1070. 

50.  Johnston  v.   Case.   131   N.  C.   491. 

51.  Held  that  where  land  -was  purchased 
in  the  name  of  a  wife  without  the  knowl- 
edge or  consent  of  the  husband,  the  -wife 
could  not  obtain  title,  n'^ither  party  having 
actual  possession — Flanner  v.  Butler,  131  N. 
C.   155. 

52.  Barrett  v.  Kelly.  131  Ala,  378;  Ney- 
land  V.  Texas  Yellow  Pine  Lumber  Co.  (Tex. 
Civ.  App.)   64   S.  "W.   696. 

53.  Illinois  Steel  Co.  v.  Budzisz  (Wis.)  90 
N.    W.    1019. 


ADVERSE  POSSESSION. 


35 


with  an  intention  to  make  trespasses  until  forbidden,  are  insufficient.'*  Erection 
of  permanent  improvements  is  a  strong  circumstance  supporting  tlie  inference  of 
adverse  possession.^*^  Possession  of  an  alley  under  a  claim  that  it  is  vacated  is 
sufficiently  adverse.""  Under  statutes  concerning  the  acquisition  of  title  to  vacant 
land,  entry  must  be  made  before  the  actual  owner  takes  possession."^ 

§  7.  Continuitij. — Interrupted  possession  for  the  statutory  period  will  not 
suffice  unless  the  possessions  are  connected. ^^  A  secret  re-entry  does  not  interrupt 
possession,^''  nor  changes  in  political  divisions,®"  nor  a  judgment  in  ejectment 
where  there  is  no  surrender,  entry  or  execution,®^  nor  proceedings  in  insolvency 
where  the  premises  are  a  declared  homestead,**^  nor  occasional  entries  there  being 
actual  enclosure.*^^  Possession  by  an  executor  will  not  be  regarded  as  an  inter- 
ruption."* Tlie  acts  must  be  such  as  to  afford  reasonable  notice  to  the  adverse 
occupant  that  his  possession  is  challenged.'^^  A  re-assumption  of  possession  does 
not  relate  to  a  former  occupancy.*® 

§  8.  Duration. — Possession  must  extend  through  the  statutory  period®^  which 
begins  to  run  from  the  first  act  construed  as  an  assertion  of  hostile  holding.®* 
Possession  while  there  is  no  cause  of  action  cannot  be  included,''^  or  pending  an 
action  against  claimant  to  recover  the  land.'^"  Entry  while  the  title  is  in  litiga- 
tion will  not  constitute  a  disseisin.^^  Time  between  filing  of  an  application  for 
school  land  and  the  issue  of  a  patent  therefor  may  be  included/^  or  after  identifica- 
tion of  railroad  land.''^ 


54.  Knight    V.    Denman    (Neb.)     90    N.    W. 

863;   Ritter  v.  Myers   (Neb.)    92  N.  W.   638. 

55.  Brock  V.  Bear  (Va.)  42  S.  E.  307.  Di- 
vision fences,  planting?  orchards  or  erection 
of  substantial  buildings— Hill  v.  Coal  Val. 
Min.  Co.,  103  111.  App.  41.  It  may  be  suffi- 
cient to  use  a  small  triangular  portion  of 
land  for  the  purpose  of  access  to  a  building — 
Mackall  v.   Mitchell.    18   App.  D.  C.   58. 

58.  Blennerhassett  v.  Town  of  Forest  City 
(Iowa)    91    N.    W.    1044. 

57.  So  held  where  after  a  payment  under 
Kurd's  Rev.  St.  1899.  c.  83,  §  7,  the  claimant 
made  an  entry  after  the  holders  of  a  para- 
mount title  had  enclosed  the  land  with  a 
fence — Stalford  v.  Goldring,  197  111.   156. 

58.  Brinkley  v.  Smith,   131  N.  C.  130. 

59.  Illinois  Steel  Co.  v.  Budzisz  (Wis.)  90 
N.    W.    1019. 

60.  So  held  where  a  new  county  compre- 
hending a  portion  of  a  patent  was  created — 
Kentucky  Union  Co.  v.  Cornett,  23  Ky.  Law 
R.    1922. 

61.  Duffy  V.  Duffy,   20  Pa.  Super.  Ct.   25. 
63.     Harris  v.  Duarte    (Cal.)    70   Pac.   298. 

63.  Entries  to  obtain  rock  or  timber  or 
to  make  sugai — Swafford  v.  Heid's  Adm'r, 
23  Ky.  Law  R.   1556. 

64.  Being  authorized  by  Rev.  St.,  arts. 
1867  and  IS 69 — MoLavy  v.  Jones  (Tex.  Civ. 
App.)    72  S.   W.   407. 

65.  As  where  the  owner  of  uninclosed 
land  enters  and  surveys  it  setting  stakes 
and  remaining  on  the  land  for  a  considera- 
ble time — Illinois  Steel  Co.  v.  Budzisz  (Wis.) 
90   N.   W.   1019. 

66.  Illinois  Steel  Co.  v.  Budzisz  (Wis.)  90 
N.  W.   1019. 

67.  In  case  of  enclosed  land,  15  years — 
Speer  v.  Duff.  23  Ky.  Law  R.  1323;  as  under 
a  parol  gift — Logan  v.  Phenix,  23  Ky.  Law 
R.  2300.  A  lease  given  during  proceedings 
to    recover    land    under    which    possession    is 


held  less  than  three  years  does  not  show  ad- 
verse holding  for  a  sufficient  period — Stan- 
dard Oil  Co.  v.  Cook,  63  Kan.  866.  Under  a 
ten  year  provision,  adverse  rights  are  barred 
when  not  asserted  until  29  years  after  fore- 
closure of  a  mortgage  executed  by  one  In 
possession  under  exclusive  claim  of  title — 
Dunbar  v.  Aldrich,  79  Miss.  698.  Eight  years 
occupancy  and  subsequent  removal  and  man- 
agement for  the  life  tenant  Is  not  sufficient 
where  right  is  claimed  under  statute  requir- 
ing 10  years  possession--Anderson  v.  Carter 
(Tex.  Civ.  App.)  69  S.  W.  78.  Possession  for 
8  years  joined  to  a  possession  for  1"^  years 
is  not  sufficient  under  a  10  year  statute — Pat- 
ton  v.  Smith  (Mo.)  71  S.  W.  187.  Three  years 
statute  does  not  apply  in  tavor  of  one  hold- 
ing under  a  sheriff's  deed  where  before  sale 
title  had  passed  to  the  execution  debtor's 
wife — Watts  v.  Bruce  (Tex.  Civ.  App.)  72 
S.  W.  258.  The  five  years  statute  does  not 
apply  in  the  absence  of  a  deed  of  record  or 
payment  of  taxes— Watts  v.  Bruce  (Tex.  Civ. 
App.)  72  S.  W.  25S.  Where  after  grant  of  a 
right  of  way  possession  of  the  land  is  taken 
under  a  homestead  application,  10  years  ad- 
verse occupation  of  the  entire  right  of  way 
except  a  portion  of  which  the  company  take 
forcible  possession,  will  bar  an  action  for  its 
recovery;  construing  2  Ball.  Ann.  Codes  and 
Statutes.  §  4797 — Northern  Pac.  R.  Co.  v. 
Hasse,   28  Wash.  353,  68  Pac.  882.* 

68.  From  the  date  of  a  tax  sale — Gauthier 
V.  Cason,   107  La.   52. 

69.  Sparks  v.  Hall  (Tex.  Clv.  App.)  67  S. 
W.    916. 

70.  St.  Paul  M.  &  M.  R.  Co.  v.  Olson 
(Minn.)    91  N.  W.   294. 

71.  Entry  by  squatter  who  made  slight 
improvements  and  the  owner  was  residing 
on  a  portion  of  tho  premises,  (2  Ball.  Ann. 
Codes  and  St.  §  4797) — Blake  v.  Shriver,  27 
Wash.   593,    68   Pac.    330. 

72.  Thompson  v.   Dutton    (Tex.   Clv.  App.) 


36  ADVERSE  POSSESSION. 

One  attempting  to  tack  possessions  must  show  a  continuity  of  transfer."* 
Under  certain  statutes  the  doctrine  of  tacking  possession  does  not  apply.''  Pos- 
session of  an  heir  may  be  tacked  to  that  of  his  ancestor,  through  whom  he  acquires 
possession/'  but  not  possession  under  a  deed  from  a  trespasser  to  the  trespassers 
possession.'^^  An  adverse  possession  cannot  be  tacked  to  a  prior  possession  not 
adverse,'*  as  one  under  contract  of  purchase.^^  Possession  under  a  \six  sale  against 
an  execution  purchaser  may  be  joined  to  the  execution  debtors  possession  if  he 
acquires  title  from  such  tax  purchaser.^"  One  claiming  by  adverse  possession  in 
another  must  connect  himself  therewith.®^ 

§  9.  Color  of  title. — Title  of  record  is  unnecessary*^  except  under  particular 
statutes  requiring  a  deed  and  claim  of  title  of  record.*^  Where  a  statute  provides 
a  limitation  in  favor  of  those  holding  under  recorded  deeds,  the  heir  of  one  so 
holding  may  claim  a  portion  of  the  property  set  aside  to  her  in  partition  Tvithout 
record  of  the  order  of  court,  setting  it  apart  to  her.®*  "Tnder  the  same  statute  a 
will  need  not  be  recorded  to  enable  the  heir  to  claim  by  a  deed  of  record  to  his 
ancestor.^'  Where  adverse  possession  must  be  under  title  or  color  thereof  or  un- 
der a  duly  registered  deed,  it  cannot  be  asserted  by  a  grantor  against  his  own 
deed.^®  Conveyance  of  an  undefined  portion  of  a  largor  tract  followed  by  a  subse- 
quent and  ratified  definition  of  the  tract  conveyed  breaks  the  continuity  of  title 
thereto  as  regards  others  claiming  in  the  status  of  the  grantor.*^  The  fact  that 
claimant's  grantor  obtained  title  by  conveyances  of  constituent  portions  does  not 
affect  the  quality  of  his  deed  of  the  entire  tract  as  color,*®  Written  evidence  of 
title  in  grantor  does  not  avail  to  his  parol  grantee.** 

A  tax  deed  is  not  a  title  deducible  of  record  from  the  commonwealth,""  but 
may  be  color  of  title'^  without  proof  of  the  validity  of  the  antecedent  pro- 
ceedings,*' and  though  it  faultily  describe  the  oTvner,*^  or  there  were  defects  in 
the  assessment;**  but  the  title  derived  from  a  tax  sale,  void  for  insufficiency  of  de- 
cs S.  "W.  641,  Judg^ment  reversed  on  rehear-  I  Lackey  v.  Bennett  (Tex.  Civ.  App.)  65  S.  W. 
Ins-.    Id.   996.  j  651:   see  Beer  v.  Dalton   (Neb.)    92  N.  "W.  593, 

73.  Where  public  lands  are  granted  a  rail-  I  which  in  a  syllabus  by  the  court  not  sup- 
road  on  condition  of  identification  adverse  ported  by  the  opinion,  says  that  color  of  title 
possession  may  begin  against  the  railroad  on  i  and  other  elements  must  be  preser.t. 

filing  of  the  certificate  of  identification  and  I  84.  McLavy  v.  Jones  (Tex.  Civ.  App.)  72 
Is  not  deferred  to  the  issuance  of  the  patent  i  s.  "W.   407. 

— Toltec  Ranch  Co.  v.  Babcock.  24  Utah,  183,  s5.'  McLavv  v.  Jones  (Tex.  Civ.  App.)  72 
66   Pac.   876.  S.   W.   407. 

74.  Evans  v.  Welch,  29  Colo.  355,  68  Pac.  |  ge.  Under  either  3  or  5  years  limitations — 
'^~^-  i  Goldman  v.  Sotelo  (Ariz.)  68  Pac.  55S. 

.r'^  ^tJl^^^  So°.^^^-  ^cP-  ^^^^-  ^  ^"^*  8-  So  held  in  construction  of  the  Texas 
(Laws  1899.  c.  158)— J  B  Street er.  Jr..  Co.  v.  !  statute  where  a  portion  of  a  homestead  was 
Fredrickson    (N.  D.)    91   X    y.   692.  '  conveved    and    selected   with    the    wife's    rat- 

76.     Epperson  v^Stansill.  b4  S.  C.  48o  ification  and  she  and  the  children  attempted 

T>  "o  ^'^^'^^^  V  Pittsburg  &  ■^.  R.  Co.,  18  <  ^^  avail  themselves  of  subsequent  occupation 
^^    ^£®x'        ■       i'   .^  V    -      „  i  of  the  part  selected — Mass  v.  Bromberg  (Tex. 

78.     Patton   V.    Smith    (Mo.)    71    S.   W.    187.    civ.  App.)    66  S.   W.    45S. 
Where   occupancy   is   beyond  the  subdivision  Shenandoah    Furnace    Co..    3 

line   by  mistake   of  the   adioinmg   owners   in    „       „         ^r'  j,     g„Q 

locating  the  line  one  to  whom   the  occupant       ^'      "^'        '  -a^ A„    «.    r^„«<. i  -c    p    -d    /-., 

I.  ,         .   ^.  .  ^-^     ■,     \.  89.     Acme  Brew.  Co.  v.  Central  R.  &  B.  Co., 

conveys  by  a  mere  description  of  the  land  as  ' 


a  government  subdivision,  cannot  take  ad- 
vantage of  the  prior  possession  beyond  the 
true  line — Patton  v.  Smith  (Mo.)  71  S.  "W.  1S7. 

79.  Thompson  v.  Button  (Tex.  Civ.  App.) 
69  S.  ^V.  641;  judgTnent  reversed  on  rehear- 
ing.   Id.    996. 

80.  Gauthier  v.  Cason.  107  La.  52. 

81.  Murray  v.  Pannaci  (N.  J.  Ch.)  53  AIL 
695:  Johnston  v.  Case.   131  N.  C.   491. 

82.  Where  there  -was  15  years'  holding — 
Krauth  v.  Hahn.  23  Ky.  Law  R.  1261. 

S3.     Five  years'   clause   of  Texas   statute — 


115  Ga.   494. 

90.  Construing  Ky.  St.,  §  2513 — Grimn  v. 
Sparks.  24  Ky.  Law  R.  849. 

91.  A  marshal's  deed  to  one  through  whom 
occupant  claims  may  be  color  of  title  though 
void. — Mackall  v.   Mitchell.   18  App.  D.  C.   58. 

92.  So  held  under  the  five  year  clause  of 
the  Texas  statute  though  contra  under  the 
three  year  clause — Gillaspie  v.  Murray  (Tex. 
Civ.  App.)   66  S.  TV.  252. 

93.  Boyle  V.  West.  107  La,  347. 

&4.     Jopling  V.  Chachere.  107  La.  522. 


ADVERSE  POSSESSION. 


37 


scription,  will  not  sustain  adverse  possession.®"  Where  a  tax  purchaser  and  his 
vendee  have  no  title  because  of  invalidity  of  the  sale  and  knowledge  thereof, 
their  vendees  may  have  a  title  valid  on  its  face  sufficient  to  sustain  title  by  pre- 
scription.®^ A  judgment  in  eminent  domain  proceedings  is  not  a  paper  title,*^  or  a 
judgment  in  a  petitory  action.®^  One  purchasing  at  execution  sale  after  the 
title  has  passed  to  the  wife  of  the  judgment  debtor,  is  not  in  under  color  of 
title.®®  A  voidable  deed  in  foreclosure  regular  and  valid  on  its  face  is  color  of 
title/  as  where  a  decree  and  deed  purport  to  convey  a  fee  on  foreclosure  of  a 
mortgage  of  a  life  estate.^  Possession  for  20  years  under  an  ordinar/s  deed  is 
sufficient,* 

The  insirumeni  to  be  color  of  title  must  on  its  face  be  such  and  cannot  be 
aided  by  parol,*  though  extrinsic  evidence  may  be  admissible  to  render  the  dis- 
scription  certain."  A  conveyance  having  a  grantor  and  grantee  and  purporting  to 
pass  land  aptly  described  is  color  of  title,^  though  not  sufficient  to  convey  title,' 
void,®  executed  by  one  without  title,®  or  under  disability,^**  or  a  mere  quitclaim 
deed.^^  A  void  headright  grant  is  not  sufficient.^^  A  deed  or  mortgage  insuffi- 
cient to  convey  a  homestead  does  not  amount  to  color^^  though  in  some  states  such 
instrument,  void  through  nonjoinder  of  the  wife  may  be  color  of  title  as  against 
third  persons."  A  deed  by  the  husband  tliough  void  as  against  the  wife  will  oper- 
ate to  fix  the  scope  of  the  grantee's  possession. ^^  If  the  description  be  such  that  a 
surveyor  can  from  it  locate  the  land  it  is  sufficient.^"  A  deed  purporting  to  con- 
vey part  of  a  larger  tract  must  identify  the  part  conveyed. ^^  Color  of  title  to  a 
government  fraction  extends  only  to  the  line  of  the  government  survey.^*  Where 
an  enclosed  lot  is  sold,  the  fact  that  the  boundary  is  doubtful  on  accmmt  of  un- 
certainty as  to  the  location  of  a  starting  point,  does  not  prevent  the  grantee  from 
acquiring  title.^®     Possession  under  a  parol  contract  of  sale  is  good.^® 


95.  Cooper  v.  Palk   (La.)   33  So.  567. 

96.  Cooper  v.  FaUt   (La.)   33  So.  567. 

97.  Construing  Em.  Dom.  Act.  Kurd's  Rev. 
St.  1899,  p.  839.  c.  47,  §  10  and  Kurd's  Rev. 
St.,  p.  1118,  c.  83,  §  6 — Converse  v.  Calumet 
River  R.  Co.,  195  IlL  204. 

98.  Ten  years  prescription  against  those 
claiming  through  the  unsuccessful  parties, 
the  judgment  being  in  favor  of  one  holding 
a  certificate  of  purchase  from  the  state — 
Hargrave  v.  Mouton   (La.)   33  So.  590. 

99.  Under  the  three  years  statute — Watts 
v.  Bruce,   72  S.  W.  258. 

1.  K.  B.  Claflin  Co.  v,  Middlesex  Banking 
Co.    (Ark.)    113   Fed.    958. 

2.  Webb  v.  Winter,  135  Cal.  455,  67  Pac. 
691;  reversed  .iudgment,  Id.,   65   Pac.  1028. 

3.  As  where  there  is  a  sale  under  parti- 
tion between  the  heirs  of  a  lessee — Few  v. 
Keller,    63    S.    C.    154. 

4.  Converse  v.  Calumet  River  R.  Co.,  195 
111.   204. 

5.  Sharp  v.  Slienandoah  Furnace  Co.,  3  Va. 
Sup.  Ct.  R.  589. 

6.  Schlageter  v.  Gude  (Colo.)  70  Pac.  428; 
Robinson  v.   Lowe,    50    W.  Va.    75. 

7.  Sharp  v.  Shenandoah  Furnace  Co.,  3  Va. 
Sup.   Ct.  R.  589. 

8.  Bennett  v.  Pierce,  50  W.  Va.  604. 

9.  Roth  V.  Munzenmaier  (Iowa)  91  N.  W. 
1072. 

10.  A  warranty  deed  from  an  Indian  pat- 
entee is  color  of  title  in  the  hands  of  inno- 
cent grantees,  though  the  patentee  is  incom- 
petent under  the  treaty  and  his  patent  pro- 
vided that  the  land  should  not  be  conveyed 
without  the  consent  of  the  secretary   of  the 


Interior — Schrimpscher  v.  Stockton,  183  U.  S. 
290,  46  Law.  Ed.  203,  affirming  judgment.  Id., 
58  Kan.  758,  51  Pac.  276. 

11.  Johnson  v.  Girtman,  115  Ga.  794. 

12.  Under  3  years  statute — Sheppard  v. 
Avery  (Tex.  Civ.  App.)   68  S.  W.  82. 

13.  So  held  when  not  joined  in  by  the 
wife — Garner  v.  Black  (Tex.)  65  S.  W.  876; 
affirming  judgment  Black  v.  Garner  (Tex. 
Civ.   App.)    63   S.    W.    918. 

14.  Avera  v.  Williams   (Miss.)    33  So.  501. 

15.  Williams  v.  Bradley  (Tex.  Civ.  Arp.) 
67  S.   W.   170. 

16.  Hill  V.  Karris  (Tex.  Civ.  App.)  64  S. 
W.  820.  Where  a  deed  relied  on  as  color  of 
title  described  the  land  by  reference  to  a 
deed  of  a  certain  date,  and  such  deed  is  not 
introduced  In  evidence,  the  three  and  five 
years  statutes  of  limitation  are  not  availa- 
ble; though  a  deed  is  introduced  between 
the  same  parties  of  almost  identical  date — 
Rountree  v.  Thompson  (Tex.  Civ.  App.)  71 
S.  W.  574;  Id.,  72  S.  W.  69. 

17.  So  held  under  Kurd's  Rev.  St.  1899,  c. 
S3,  §  6 — Kanna  v.  Palmer,  194"  111.  41.  "100 
acres  deeded  to  B  out  of  a  certain  survey" 
held  insufficient — Bruce  v.  Richardson  ,(Tex. 
Civ.  App.)    64  S.  W.  785. 

18.  So  held  where  another  line  was  subse- 
quently established — Barnes  v.  Allison,  166 
Mo.    96. 

19.  It  being  understood  that  the  descrip- 
tion covered  all  the  land  within  enclosure — 
Powers  V.  Bank  of  Oroville,  136  Cal.  486,  69 
Pac.  151. 

20.  Where  continued  for  fifteen  year.s — 
Howton  V.  Gilpin,  24  Ky.  Law  R.  630. 


38 


ADVERSE  POSSESSION. 


§  10.  Payment  of  taxes. — One  who  on  account  of  his  peculiar  relation  to 
the  title  is  bound  to  pa}-  taxes,  cannot  avail  himself  of  such  pa^nnents  to  support 
a  title  by  adverse  possession. ^^  Payment  of  taxes  on  vacant  land  while  an  as- 
sertion of  title  is  not  eqnivalent  to  possession.^-  Under  laws  making  payment  of 
taxes  an  element  of  possession  all  taxes  must  be  paid  by  the  claimant.^'  Under 
some  statutes  pa^-ment  must  be  coupled  with  possession.^*  Payment  under  a 
deed  of  record  establishes  the  possession  to  be  adverse.-^  It  cannot  be  objected 
that  the  claimant  did  not  pay  taxes,  where  the  boundaries  being  uncertain,  no 
taxes  were  assessed  on  the  strip  in  controversy,  if  they  were  not  included  in  the 
assessment  paid  by  claimant.^® 

§  11.  Area  of  possession. — By  statute,  the  amount  of  land  to  be  acquired 
by  limitation  may  be  limited.^^  The  instrument  under  which  claimant  entered 
is  not  conclusive  as  to  the  scope  of  possession.^*  One  in  possession  of  a  portion  of 
a  tract  imder  color  of  title  to  the  whole  has  constructive  possession  of  the  entire 
tract,  if  not  actually  adversely  occupied. ^^  though  the  color  of  title  is  void.^°  To 
increase  constructive  possession,  the  boundaries  of  the  color  cannot  be  enlarged 
by  intention  to  convey  more  land.^^  Such  possession  is  lost  by  conveyance  of  the 
portion  in  actual  occupancy,^^  or  by  sale  of  the  part  constructively  possessed.^^ 
Possession  of  part  may  be  under  a  deed  improperly  recorded^*  but  does  not  extend  to 
land  held  under  distinct  conveyances,^^  nor  does  it  affect  a  record  owner  whoso 
land  is  included  in  a  deed  between  strangers  but  no  portion  occupied.^®  Con- 
structive possession  of  the  legal  owner  is  not  disturbed  by  a  possession  not  within 
the  boundaries  of  his  grant  though  within  the  boundaries  of  a  conflicting  title 
whicli  included  the  occupant's  land.^"  There  is  no  constructive  possession  of  un- 
enclosed land,  a  portion  of  which  only  is  actually  occupied.^^  Actual  possession 
cannot  be  overcome  by  constructive  possession  though  under  a  later  title  Heed.^^ 


G'win 
S.   W. 


3491a 


21.  So  held,  where  a  grantee  in  possession 
of  the  mortg-ag-or.  paid  taxes  on  the  mort- 
gaged premipes  for  more  than  seven  years — 
Alsup  V.   Stewart.   194   111.   595. 

22.  Texas  Tram  &  Lumber  Co.  v. 
(Tex.  Civ.  App.)  67  S.  W.  892;  Id.,  68 
721. 

23.  Revised  Codes  N.  D.  1899,  § 
(Laws  1899.  c.  158);  adverse  possession  for 
ten  years  with  payment  of  taxes — J.  B. 
Streeter.  Jr.,  Co.  v.  Fredrickson  (N.  D.)  91 
N.  W.   692. 

24.  Under  the  statute  providing  for  5 
years  possession  and  the  payment  of  taxes — 
Goldman  v.   Sotelo   (Ariz.)    68   Pac.   558. 

25.  Sparks  v.  Hall  (Tex.  Civ.  App.)  67  S. 
W.    916. 

26.  Dierssen  v.   Nelson   (Cal.)    71  Pac.   456. 

27.  Under  Rev.  St.  art  3344.  more  than  160 
acres  cannot  be  claimed  under  the  ten  year 
limitation  act.  unless  there  is  evidence  of 
title  of  record  describing  a  larger  tract — 
Watts  V.  Bruce  fTex.  Civ.  App.)   72  S.  "W.  258. 

28.  Where  possession  is  taken  of  an  entire 
tract  under  a  deed  which  by  mistake  fails 
to  convey  a  portion  thereof  and  conveyance 
is  made  by  the  occupants  to  others  by  simi- 
lar descriptions,  the  accumulated  holdings 
being  more  than  the  statutory  period,  the 
land  omitted  may  be  held  against  a  subse- 
quent grantee  of  the  original  grantor — West 
V.  Edwards,  41  Or.  609.  69  Pac.  992. 

29.  Krauth  v.  Hahn,  23  Ky.  Law  R.  1261; 
Maxwell  v.  Cunningham.  50  TV.  Va.  298;  Bar- 
rett V.  Kelly  (Ala.)  30  So.  824. 

30.  Sparks  v.  Farris  (Ark.)  71  S.  W.  945; 
denying  rehearing.   Id.    255. 


31.  Johnston  v.  Case.   131  N.  C.   491. 

32.  Sharp  v.  Shenandoah  Furnace  Co.,  3 
Va.    Sup.    Ct.    R.    589. 

33.  Sale  of  unimproved  portion  and  reten- 
tion of  occupancy  of  improvements — Kirk- 
patrick  V.  Tarlton  (Tex.  Civ.  App.)  69  S.  W. 
179. 

34.  In  this  case  it  is  mooted  whether  a 
voluntary  deed  may  be  "duly  recorded"  un- 
der Civ.  Code.  §  3587,  and  Registry  Laws — 
Eaxley  v.  Baxley  (Ga.)   43  S.  E.  436. 

35.  Hill  V.  Harris  (Tex.  Civ.  App.)  64  S. 
W.  820.  Rightful  possession  of  a  grant  is 
not  extended  constructively  to  the  entire 
limits  of  a  subsequent  sheriff's  deed  includ- 
ing such  grant  since  such  possession  is  not 
sufficient  to  render  claimant  liable  to  eject- 
ment— Lewis  V.  Covington,  130  N.  C.  541. 
Where  the  tract  claimed  lies  partly  in  tw^o 
distinct  grants,  but  the  actual  possession  is 
limited  to  one  grant,  claimant  has  no  con- 
structive possession  to  the  extent  of  his  color 
of  title  to  that  part  of  the  land  described  as 
lying  within  the  other  grant — Elliott  v.  Cum- 
berland Coal  &  Coke  Co.  (Tenn.)  71  S.  W.  749. 

36.  Walsh  v.  Wheelwright,  96  Me.   174. 

37.  Where  one  under  a  deed  carrying  ac- 
cretions sought  to  claim  land  the  legal  title 
to  which  was  in  another  it  w^as  held  that  in 
the  absence  of  actual  occupancy  there  w^as 
no  constructive  possession — Stockley  v. 
Cissna  (C.  C.  A.)  119  Fed.  812. 

38.  Zepeda  v.  Hoffman  (Tex.  Civ.  App.) 
72  S.  W.   443. 

39.  Carey  v.  Cagney  (La.)   33  So.  89. 


ADVERSE  POSSESSION. 


39 


A  deed  which  by  mistake  describes  land  claimed  will  not  prevent  acquisition  of 
title  where  immediately  after,  the  mistake  is  acknowledged  by  all  parties.*"  Ex- 
ecution of  a  lease  of  an  entire  tract  by  one  holding  a  deed  to  a  portion  does  not 
extend  constructive  possession  to  part  not  actually  occupied  by  the  lessor.*^  Where 
a  lap  caused  by  conflicting  descriptions  is  not  enclosed,  in  the  absence  of  actual  oc- 
cupancy constructive  possession  enures  to  the  superior  title.*^  Under  mere  claim 
of  title,  possession  is  in  certain  states  limited  to  actual  inclosure,'*^  but  in  others 
possession  of  a  portion  claiming  the  whole  is  possession  of  the  whole.**  Posses- 
sion of  the  shore  does  not  extend  to  submerged  land  where  the  titles  are  distinct.*" 

§  13.  Nature  of  title  acquired. — When  the  statutory  period  of  holding  has 
been  completed  in  concurrence  with  other  elements,  the  claimant  acquires  an  abso- 
lute title  equivalent  to  a  valid  record  title.*"  It  will  bar  a  mortgagor's  action  to 
redeem,*'  and  is  a  sufficient  defense  to  ejectment.*®  A  transferee  of  one  who  has 
acquired  title  by  adverse  holding  may  maintain  an  action  to  remove  cloud  from  his 
title.*'  Actual  possession  for  more  than  seven  years  under  a  deed  improperly  re- 
corded may  overcome  the  title  of  a  purchaser  for  value  under  a  perfect  paper 
title. ^°  Where  a  title  is  divested  by  adverse  possession  and  the  former  owner 
conveys,  his  grantee  cannot  assert  the  benefit  of  the  three  j'ears'  statute.^^  After 
a  father  has  acquired  title  by  adverse  possession,  such  title  cannot  be  affected  by 
agreements  between  a  son  in  possession  and  the  former  owner  or  by  a  judgmnt 
establishing  such  son's  title  as  against  the  former  owner's  heirs.^^  Title  when  ac- 
quired is  not  affected  by  subsequent  acts  apparently  sliowing  a  cessation  of  adverse 
holding,^^  or  by  failure  to  include  a  portion  of  the  land  in  legal  proceedings.^* 
After  forty  years,  possession  is  presumed  to  be  under  a  deed.^^ 

§  13.  Pleading,  evidence  and  instructions. — Adverse  possession  need  not  be 
charged  in  the  words  of  the  statute.^"  It  may  be  asserted  under  a  general  denial.^' 
An  allegation  as  to  enclosure,  in  the  absence  of  a  paper  title,  is  not  necessary 
where  there  is  an  averment  of  knowledge  of  the  adverse  claim. -"^^  On  pleading 
adverse  possession  the  facts  must  be  alleged  or  else  the  existence  of  a  prescriptive 
right.®*     Where  the  statute  is  pleaded  the  adverse  possession  must  be  by  the  party 


40.  Claim  under  two  years  statute — Ellis 
V.  Le  Bow  (Tex.  Civ.  App.)    71  S.  W.  576. 

41.  Hill  V.  Harris  (Tex.  Civ.  App.)  64  S. 
W.    820. 

42.  Kentucky  L..  &  I.  Co.  v.  Crabtree,  24 
Ky.  Law  R.  743;  Krauth  v.  Hahn,  23  Ky.  Law 
R.   1261. 

43.  Maxwell  v.  Cunningham,  50  W.  Va.  298. 

44.  Construing-  Rev.  St.,  §  4266 — Stevens 
V.   Martin,    168   Mo.    407. 

45.  Gibbs  V.  Sweet,  20  Pa.  Super.  Ct.  275. 

46.  So  held  on  an  assessment  of  damages 
for  construction  of  a  highway — Hohl  v.  Os- 
borne riowa)  92  N.  W.  697;  Renner  v.  Kan- 
nally,  96  111.  App.  392;  judgment  affirmed.  Id.. 
61  N.  E.  1026;  Bennett  v.  Pierce.  50  W.  Va. 
604;  twenty-four  years  possession  under 
mesne  conveyance  from  an  invalid  patentee 
— Stevens  v.  Martin.  168  Mo.  407.  Open,  no- 
torious, and  peaceable  possession  of  real  es- 
tate with  claim  of  right  thereto  for  the  per- 
iod prescribed  by  statute  confers  title  on 
the  claimant — Kline  v.  Stein  (Wash.)  70  Pac. 
235.  Evidence  of  possession  and  payment  of 
taxes  for  more  than  20  years  will  support  an 
action  for  possession — Kolb  v.  Jones,  62  S.  C. 
193. 

47.  So  held  where  there  was  7  years  pos- 
session under  a  voidable  deed  in  foreclosure 
— H.  B.  Claflin  Co.  v.  Middlesex  Banking  Co. 
(Ark.)    113  Fed.  958. 


48.     Bean  v.  Gardner,  18  Pa.  Super.  Ct.   245. 
40.     Mickey  v.    Barton,   194   111.   446. 

50.  Baxley  v.  Baxley  (Ga.)    43  S.  E.   436. 

51.  Grayson  v.  Peyton  (Tex.  Civ.  App.)  67 
S.  W.   1074. 

52.  Kirton  v.   Bull,   168   Mo.   622. 

53.  Mann  v.  Schueling  (Tex.  Civ.  App.)  68 
S.  W.   292. 

54.  Beam  v.  Gardner,  18  Pa.  Super.  Ct.  245 

55.  Jenkins  v.  McMichael,  21  Pa.  Super. 
Ct.   161. 

56.  So  the  words  "claiming  to  be  the 
owner"  need  not  be  used  where  it  was  al- 
leged that  certain  acts  were  done  "of  which 
the  defendant  well  knew,  knowing  that  com- 
plainant was  doing  so  as  owner  of  the  land" 
— Bynum  v.  Stinson  (Miss.)  32  So.  910.  It 
is  sufficient  to  allege  holding  for  about  fif- 
teen years,  and  that  land  was  secured  fifteen 
years  ago,  where  a  ten  yea.rs'  statute  is  re- 
lied on — Bynum  v.  Stinson   (Miss.)   32  So.  910. 

57.  Shelton  v.  Wilson,  131  N.  C.  499. 

58.  Bynum   v.    Stinson    (Miss.)    32   So.    910. 

59.  Where  prescriptive  right  is  pleaded, 
it  must  be  alleged  that  it  was  under  claim  of 
right  peaceable,  ■without  Interruption,  open, 
notorious  and  exclusive — Coleman  v.  Hines, 
24  Utah,  360,  67  Pac.  1122.  It  is  sufficient  to 
assert  the  time,  openness  and  notoriety  of 
possession  together  with  acts  as  the  cutting 
of  flre   wood  with  knowledge  of  the   oppos- 


40 


ADVERSE  POSSESSION. 


though  otherwise  where  the  evidence  is  introduced  under  a  general  denial.^"  On 
trespass  for  a  portion  of  a  tract,  defendant  may  recover  on  a  showing  of  adverse 
possession  as  to  the  specific  portion,  though  he  has  not  pleaded  adverse  possession 
as  to  that  portion  specially."  Record  title  or  a  written  agreement  of  exchange  need 
not  be  shown  where  adverse  possession  pursuant  to  a  parol  exchange  is  pleaded.®^ 

The  burden  of  proof  of  adverse  possession  is  upon  the  person  asserting  it,"' 
so  he  must  show  the  time  of  inception,®*  and  must  establish  his  occupancy,*' 
though  he  need  not  show  want  of  disability  in  holders  of  the  outstanding  title.®* 
A  deed  creates  no  presumption  that  actual  adverse  occupancy  begins  at  the  date  of 
its  delivery."  There  is  a  presumption  of  good  faith.®^  Possession  is  presumed  1 
to  be  under  a  deed  if  a  deed  be  shown.®*  User  is  presumed  to  be  in  subordination  to 
the  actual  title,'®  and  possession  presumed  to  continue  subordinate.^^  The  pre- 
sumption is  not  overcome  by  a  deed  accompanied  by  circumstances  showing  that  it 
was  not  executed  in  good  faith,'^  nor  by  mere  possession  if  the  claimants  are  in 
the  relation  of  father  and  son.'^'  Where  several  hold  subordinately,  if  one  pro- 
cure a  deed  of  the  interest  of  the  other  occupants,  it  is  not  presumed  that  the 
character  of  his  possession  is  changed."*  Prior  possession  under  a  bond  for  title 
will  be  presumed  to  be  adverse  to  an  intervening  tax  purchaser.'^ 

Relevancy  of  evidence.''^ — Claimant  cannot  show  legal  advice  to  make  im- 
provements or  conversation  between  himself  and  other  claimants  as  to  their  right 
on  the  land.''''  Leases  executed  by  claimants  for  portions  of  the  land  not  in  con- 
troversv  are  admissible  to  show  ownership  over  the  entire  tract  included  in  the 
description.''*  The  owner's  permission  to  enter  may  be  shown  by  parol.''*  The 
fraudulent  character  of  a  conveyance  is  not  material  as  between  the  parties  as  to 
the  intention  of  adverse  holding.*® 

Sufficiency  of  evidence.^'^ — There  must  be  direct  evidence  that  possession  is 


ing   claimant — Bynum   v.    Stinson    (Miss.)    32 
So.    910. 

60.  Lloyd  V.  Rawl,  63  S.  C.  219. 

61.  Smith  V.  Abadie  (Tex.  Civ.  App.)  67 
S.  W.  925;  rehearing  denied.  Id.  1077. 

62.  Bynum  v.  Stinson   (Miss.)   32  So.  910. 

63.  Harris  v.  Cole,  114  Ga.  295;  Rountree 
V.  Thompson  (Tex.  Civ.  App.)  71  S.  W.  574; 
Id.,   72   S.   W.    69. 

64.  Glezen  v.  Haskins  (R.  I.)  51  Atl.  219. 
It  Is  held  that  where  the  time  at  which  the 
statute  began  to  run  was  fixed  by  the  cessa- 
tion of  the  sinking  of  a  certain  building,  evi- 
dence of  the  time  at  which  large  buildings 
cease  to  sink  in  that  city,  was  sufficient  to 
shift  the  burden — Chapman  v.  Morris  B.  &  L. 
Imp.  Ass'n,   108   La.  283. 

65.  Where  the  evidence  of  one  surveyor 
that  a  house  is  on  the  land  is  met  by  con- 
trary evidence  of  another,  it  is  not  necessary 
that  the  court  order  another  survey  before 
claimant  may  be  dismissed — Cohn  v.  Pearl 
River  Lumber  Co.,   80  Miss.  649. 

66.  Construing  Rev.  St..  art.  3347 — Travis 
V.  Hall  (Tex.  Civ.  App.)  65  S.  \^^  1077;  Id. 
(Sup.)   65  S.  W.  1078. 

67.  Stockley  v.  Cissna  (C.  C.  A.)    119  Fed. 


Baxley  v.  Baxley   (Ga.)   43  S.  E.   436. 
Roth  V.  Munzenmaier  (Iowa)  91  N.  W. 


812. 
68. 
69. 

1072. 

70.  Construing  Cal.  Code  Civ.   Proc,   §  321 
—Allen  V.  McKay  &  Co.   (Cal.)   70  Pac.  8. 

71.  Collins    V.    Colleran.    86   Minn.    199. 

72.  Allen  v.  McKay  &  Co.   (Cal.)  70  Pac.  8. 

73.  Collins   v.   Colleran,    86   Minn.    199. 


74.  Construing  Code  Civ.  Proc.  Cal.,  §  326, 

providing  that  where  the  relation  of  landlord 
and  tenant  is  established,  the  tenant's  pos- 
session is  deemed  that  of  the  landlord  until 
five  years  from  the  last  payment  for  rent — 
Allen  v.   McKay   &   Co.    (Cal.)    70   Pac.    S. 

75.  Graham   v.   Warren    (Miss.)    33    So.    71. 

76.  Where  it  is  not  disputed  that  land 
was  appurtenant  to  a  mill,  evidence  as  to 
the  meaning  of  the  deed  conveying  the  mill 
and  its  appurtenances  is  inadmissible — Allen 
V.  McKay  &  Co.    (Cal.)    70  Pac.  8. 

77.  Reagan  v.  Hodges.  70  Ark.   563. 

78.  South  V.  Deaton,  24  Ky.  Law  R.  196, 
533. 

79.  So  parol  evidence  of  a  conversation 
between  a  land  owner  and  a  right  of  -way 
agent  is  admissible  to  show  that  a  railroad 
entered  under  an  agreement  that  it  should 
receive  the  conveyance  if  a  st.ation  were  lo- 
cated at  a  certain  place — So.  Cal.  R.  Co.  v. 
Slauson    (Cal.)    68   Pac.    107. 

80.  Collins  V.  Colleran.  86  Minn.  199. 

81.  Evidence  held  sufficient  to  show  ter- 
mination of  permissive  possession  and  to 
show  sufficient  holding — Malone  v.  Malone 
(Minn.)  93  N.  W.  605;  Glover  v.  Sage  (Minn.) 
92  N.  W.  471:  "Wood  v.  Ripley,  27  Ind.  App. 
356.  Where  a  fence  is  recognized  as  being  on 
the  line  by  a  ■written  receipt  after  a  lapse  of 
16  years,  a  finding  that  the  holding  was  ad- 
verse may  be  justified  though  there  is  parol 
evidence  that  claimant's  grantor  stated  that 
the  fence  might  be  removed  to  the  true  line 
whenever  it  was  ascertained — Mann  v. 
Schueling   (Tex.   Civ.  App.)    68   S.  W.    292;   on 


ADVERSE  POSSESSION. 


41 


adverse.*'  Adverse  possession  is  not  satisfactorily  established  by  general  state- 
ments unwarranted  by  the  facts,  and  contrary  to  facts  conclusively  established.®^ 
Admissions  of  defendant  that  their  holding  is  not  adverse,  may  be  sufficient  to 
overcome  an  apparent  weight  of  evidence  to  the  contrary.®*  Evidence  of  occu- 
pancy for  more  than  the  statutory  period  is  sufficient  to  go  to  the  jury.®^  Where 
adverse  possession  is  claimed  against  an  entryman,  there  must  be  evidence  as  to 
when  he  became  entitled  to  his  patent.®*^  Where  there  is  no  evidence  of  compli- 
ance with  the  statute,  the  question  of  acquisition  of  title  by  adverse  possession 
should  not  be  submitted  to  the  jury.®^  In  order  that  adverse  possession  of  a  por- 
tion of  a  tract  may  avail  as  a  partial  defense,  the  tract  must  be  identified,®®  but 
there  may  be  recovery  of  a  dwelling  actually  occupied  and  an  identified  portion 
of  a  tract.®®  If  there  is  evidence  of  adverse  possession  of  only  a  portion  of  the 
property  in  controversy,  a  verdict  cannot  be  directed  for  the  entire  property. °" 
Where  adverse  possession  for  more  than  the  statutory  period  prior  to  filing  suit  is 
alleged,  it  is  supported  by  proof  of  completed  possession  at  any  time  precedent."^ 

Verdict  and  findings. — Special  findings  control.**-  A  finding  that  possession 
is  not  hostile  is  ultimate  and  not  overcome  by  other  findings  as  to  the  character  of 
the  occupancy.®^  A  finding  of  facts  sufficient  to  support  adverse  possession  is  a 
sufficient  finding  of  such  possession.®* 

Questions  for  jury.  Instructions.^^ — The  sufficiency  of  notice  of  adverse  pos- 
session is  for  the  jury,®*  as  is  the  question  of  intent  in  taking  possession,®^  or 
whether  occupancy  is  such  as  to  indicate  a  claim  of  right.®®  Instructions  are  con- 
trolled by  general  rules.®®  Instructions  should  not  be  given  where  there  is  no 
evidence  that  the  land  has  passed  from  the  state.^ 


acquisition  of  title  by  a  town  to  property  oc- 
cupied as  a  town  house — WiggiTi  v.  Mullen, 
96  Me.  375.  "Where  after  a  conveyance  to  his 
son,  the  father  remains  in  possession,  testi- 
mony of  parties  in  opposing  Interest  that 
the  son  recognized  the  father's  title  in  a  par- 
ticular conversation,  will  not  establish  ad- 
verse possession  for  the  father — Collins  v. 
Colleran,  86  Minn.  199.  Statement  of  a  cor- 
poration superintendent  that  they  claim  title 
is  insufficient — Allen  v.  McKay  &  Co.  (Cal.) 
70  Pac.  8.  Testimony  of  one  witness  that 
one  of  defendant's  predecessors  accepted  a 
license  for  the  use  of  the  land,  and  that  an- 
other predecessor  had  disclaimed  it,  warrants 
a  finding  of  subordination — Allen  v.  McKay  & 
Co.  (Cal.)  70  Pac.  8.  Mere  testimony  of  the 
claimant  is  not  sufficiently  corroborated  by 
acts  show^ing  a  mere  intent  to  trespass  from 
time  to  time — Ritter  v.  Myers  (Neb.)  92  N. 
W.    638. 

82.  A  presumption  of  adverse  holding  or 
of  an  intention  to  grant  cannot  be  indulged 
merely  because  of  the  remoteness  of  transac- 
tions— Evans  v.  "Welch,  29  Colo.  355.  68  Pac. 
776. 

83.  Illinois  Steel  Co.  v.  Budzisz  (Wis.)  90 
N.   W.   1019. 

84.  Mass  v.  Bromberg  (Tex.  Civ.  App.)  66 
S.  "W.   468. 

85.  Kirton  v.  Bull,  168  Mo.  622.  So  held 
where  it  was  also  shown  that  the  adverse 
party  had  not  paid  taxes  on  the  premises 
during  the  period,  believing  that  a  tax  title 
had  been  acquired  by  third  persons  and  had 
exercised  no  acts  of  ownership — Hopkins  v. 
Deering,   71  N.   H.    353. 

86.  Baty  V.  Blrod  (Neb.)   92  N.  "W.  1032. 

87.  So  held,  where  the  ten  years  limitation 


was  submitted — Lackey  v.  Bennett  (Tex.  Civ. 
App.)    65   S.   "W.    651. 

SS.  Thompson  v.  Button  (Tex.  Civ.  App.) 
69   S.   "W.   996. 

89.  Thompson  v.  Button  (Tex.)  71  S.  W. 
544:   reversed  judgment  69  S.  "W.   641,   996. 

90.  Kreckeberg   v.   Leslie,    111    "Wis.    462. 

91.  Travis  v.  Hall    (Tex.)    65  S.  "W.  1078. 

92.  So  held,  where  the  finding  showed  pos- 
session for  fifteen  years  and  a  general  ver- 
dict was  based  on  the  theory  of  twenty  years 
possession — Terre  Haute  &  L  R.  Co.  v.  Zeh- 
ner,   28   Ind.  App.   229. 

93.  Webb  V.   Rhodes,    28  Ind.  App.   393. 

94.  So  held  where  there  was  a  finding  of 
a  conveyance,  acts  of  ownership  and  posses- 
sion for  fifteen  years — Hart  v.  Boyle,  128 
Mich.  257.  Findings  of  an  entry  under  con- 
veyances and  possession  by  the  grantees  and 
those  succeeding  to  them,  of  the  tracts,  open, 
peaceable,  notorious  and  continuous  in  char- 
acter for  more  than  5  years,  are  sufficient  to 
support  a  conclusion  that  the  action  is  barred 
— Adams  v.  Hopkins   (Cal.)    69   Pac.   228. 

95.  A  question  of  privity  of  possession  Is 
for  the  jury — Thompson  v.  Button  (Tex.  Civ. 
App.)  69  S.  "W.  641.  "Where  there  is  a  sur- 
render of  possession  after  crrmpletion  of  the 
statutory  period,  such  surrender  must  be 
submitted  to  the  jury  on  the  question  of 
whether  it  shows  that  the  holding  was  not 
adverse — Bentley  v.  Callaghan's  Ex'r,  79 
Miss.  302. 

96.  Bryce  v.  Cayce,   62  S.  C.   546. 

97.  Haney  v.  Breeden  ("Va.)   42  S.  E.  916. 

98.  Jangraw   v.   Mee    ("Vt.)    54   Atl.    189. 

99.  It  is  proper  to  instruct  the  jury  that 
possession  under  claim  of  ownership  for 
more  than  twenty  years  presumes  a  grant — 


42 


AFFIDAVITS. 


§  14.  Adverse  possession  of  personalty. — Where  a  mortgage  of  goods  condi- 
tionally sold  is  executed  by  the  purchaser  after  default  in  payment,  one  holding 
under  the  purchaser  on  foreclosure  of  such  mortgage  may  after  the  statutory 
period  has  elapsed  hold  title  as  against  the  conditional  seller.^  In  detinue,  rights 
of  possession  arising  from  the  statute  may  be  asserted  under  the  general  issue  or 
any  plea  controverting  ownership.^  Where  the  property  is  bailed  there  must  be 
a  claim  of  title  inconsistent  to  the  bailor's  and  actual  or  constructive  notice  to 
liim.* 

AFFIDAVITS. 

The  scope  of  this  title  is  limited  to  matters  common  to  all  affidavits,  regard- 
less of  the  purpose  or  proceeding  for  which  they  are  designed. 

To  be  valid  an  affidavit  must  contain  a  jurat,"*  and  it  must  be  verified  by  an 
officer  authorized  to  administer  oaths.®  An  attorney-notary  may  verify  his  client's 
affidavit.'^  It  is  not  necessary  in  South  Dakota  that  the  notary  verifying  a  plead- 
ing affix  his  seal  thereto,^  but  in  many  states  the  use  of  the  seal  is  required  by 
statute.® 

An  officer  in  a  foreign  state  authorized  to  administer  oaths  may  verify  affi- 
davits,^" but  there  must  be  attached  a  properly  authenticated  certificate  showing 
such  authority  ;^^  and  if  it  merely  recites  that  the  officer  taking  it  was  an  author- 
ized and  qualified  notary,  it  does  not  show  that  he  is  authorized  to  take  acknowl- 
edgments. ^- 

If  made  by  an  officer  or  agent  it  should  state  the  capacity  in  which  he  acts,^' 
and  why  the  affidavit  is  not  made  by  the  principal.^* 


Kolb  V.  Jones.  62  S.  C.  193.  A  jury  is  prop- 
erly instructed  that  a  deed  does  not  give 
possession  of  land  outside  its  description 
though  title  Is  claimed  by  possession  not 
under  the  deed — South  v.  Deaton.  24  Ky.  Law 
R.  196,  533.  An  instruction  considered  as 
to  the  sufficiency  of  its  definition  of  license 
preventing-  acquisition  of  title  by  adverse 
possession — Fleming  v.  Kemp  (Mo.)  70  S.  W. 
694.  Tlie  jury  should  not  be  instructed  that 
the  building  of  a  fence  is  not  conclusive  evi- 
dence of  actual  possession,  but  that  it  may 
be  considered  as  a  circumstance.  TS'here  the 
location  of  fences  was  not  disputed,  and  it 
had  been  established  that  when  removed  it 
was  in  hostility  to  claimant's  rights — Stal- 
ford  V.  Goldring.   197  111.    156. 

1.  Kolb  V.  Jones.  62  S.  C.  193. 

2.  Where  possession  was  held  more  than 
six  years — L.  Grunewald  Co.  v.  Copeland,  131 
Ala.    345. 

3.  Li.  Grunewald  Co.  v.  Copeland,  131  Ala. 
345. 

4.  Rice  V.   Connelly,    71    N.   H.    3S2. 

5.  A  mere  signed  statement  is  an  insuf- 
ficient basis  for  an  application  for  an  appeal 
— Peters  v.  Edge,  87  Mo.  App.  283;  or  publica- 
tion of  process — Doheny  v.  Worden,  75  App. 
Div.  (N.  Y.)  47;  Salt  Springs  Nat.  Bank  v. 
Same,  Id. 

6.  A  deputy  district  n'jcorder  appointed 
by  a  temporary  recorder  may  not  take  affi- 
davit to  mining  location  notice — Van  Buren 
V.  McKinley  (Idaho)  66  Pac.  936.  Affidavit 
verified  by  the  clerk  of  the  superior  court 
cannot  be  made  the  basis  of  an  attachment 
writ — Heard  v.  National  Bank,  114  Ga.  291. 
A   notary  may   verify   chattel  mortgage  affi- 


davit— Campbell  v.  State  (Tex.  Civ.  App.)  68 
S.  W.  513;  or  an  affidavit  for  a  liquor  license 
— State  V.  Scatena,  84  Minn.  281. 

7.  For  service  by  publication — Genest  v. 
Las  Vegas  Masonic  BIdg.  Ass'n  (N.  M.)  67 
Pac.  743.  Contra,  see  Comp.  Stat.  Laws  Mich., 
§  2640;  and  evidence  held  Insufficient  to  sliow 
that  affiant  was  party's  attorney — Thos.  E. 
Lynch  Co.  v.  Carpenter.  8  Detroit  Leg.  N.  S92. 

S.     Wiley  v.  Carson,  15  S.  D.   298. 

9.  Jones  v.  Jones.  3  Pennewill  (Del.)  14,  50 
Atl.    212. 

10.  So  held  sustaining  a  claim  filed  under 
Comp.  Laws  1897.  §  2221 — Genest  v.  Las 
Veg-as  Masonic  Bldg.  Ass'n  (N.  M.)  67  Pac. 
743;  as  a  master  in  chancery — Hunton  v. 
Palmer.  67  N.  J.  Law.  94;  or  United  States 
consular  officers — Browne  v.  Palmer  (Neb.) 
92  N.  W.  315. 

11.  Shockley  v.  Turnell.  114  Ga'.  378;  Con- 
nalley  v.  Wallace  Co..  51  W.  Va.  181;  Hen- 
ning  V.  Libke,   104  111.   App.   303. 

13.  Code  Civ.  Pr.,  §  844  and  Laws  1S96, 
c.  547.  §  249 — Manheimer  v.  Dosh,  36  Misc. 
(N.    T.)    857. 

13.  St.  Joseph's  Polish  Catholic  Ben.  Soc. 
V.  St.  Hedwig's  Church.  3  Pennewill  (Del. 
Super.)  229.  If  made  by  an  attorney  it  need 
not  state  that  he  is  an  attorney — O'Brien  v. 
Tare.   88  Mo.  App.   4S9. 

14.  Guyton  v.  Terrell,  132  Ala.  66.  If 
made  by  the  agent  who  had  charge  of  the 
transaction  it  is  sufficient — Steele  v.  R.  M. 
Gilmour  Mfg.  Co.,  77  App.  Div.  199;  Carolina 
Grocery  Co.  v.  Moore.  63  S.  C.  184;  or  if  made 
by  an  attorney  and  containing  a  statement 
that  he  knows  the  matters  to  be  true  it  is 
sufficient — Guyton  v.  Terrell.   132  Ala.  66. 


AFFIDAVITS  OF  MERITS— AGENCY. 


43 


AflBdavits  on  information  and  belief  are  sufficient  when  the  source  of  the  in- 
formation and  grounds  of  belief  are  given  ;^'*  and  unless  the  documents  on  which 
the  deductions  are  based  are  produced,  they  will  have  no  probative  force.^' 

Affidavits  are  not  admissible  as  evidence  for  strangers/^ 

AFFIDAVITS  OF  MERITS  OF  CLAIM  OR  DEFENSE. 

In  actions  on  contracts  in  several  states,  by  rule  of  court  or  statute,  the  plain- 
tiff may  file  an  affidavit  or  statement  of  claim,  or  cause  of  action,  and  take  judg- 
ment thereon,  or  compel  defendant  to  file  an  affidavit  of  defense,  or  verify  his 
answer.^* 

The  object  of  the  affidavit  of  defense  is  to  avoid  a  summary  judgment/® 

A  general  denial  of  indebtedness^"  or  a  mere  statement  that  defendant  had 
a  good  defense  to  the  action  is  not  sufficient,^^  but  the  facts  constituting  the  defense 
must  be  set  out,^^  so  as  to  enable  the  court  to  determine  whether  they  constitute 
a  defense  ;^^  and  a  general  averment  that  there  are  other  facts  that  defendant  does 
not  deem  necessary  to  set  out,^*  but  which  will  be  produced  at  the  trial,  is  of  no 
avail.^*  If  on  information  and  belief,  he  must  state  that  he  expects  to  prove  the 
facts  or  point  out  source  of  belief.-® 

The  time  for  filing  the  affidavit  may  be  extended  by  stipulation,^'  and  it  may 
be  filed  after  the  cause  is -called  for  trial.^' 


AGENCY. 

This  topic  will  include  all  questions  pertaining  to  the  relations  of  pi-incipal 
and  agent,  except  those  especially  applicable  to  particular  agencies,-®  which  will  be 
found  imder  particular  topics.  The  liability  of  a  principal  to  prosecution  for 
criminal  acts  of  his  agent,  is  treated  under  the  topics  relating  to  principal  and 
accessory.'" 

§  1.     The  relation  hetu-een  the  parties.     A.  Competency  to  act  as  agent. A 

bank  may  act  as  agent,^^  and  a  cashier  may  act  for  his  bank.^^     One  partner  may 


15.  Leigh  v.  Greon  (Neb.)  90  N.  W.  255; 
affirming  on  rehearing,  62  Neb.  34  4.  Moort 
V.  Thompson  (Cal.)  70  Pac.  930;  Magruder  v. 
Schley,  17  App.  Cas.  D.  C.  227;  affidavit  for 
attachment — Oxford  v.  Segnlne,  70  App.  Div. 
(N.  Y.)  228;  affidavit  held  to  state  mere  con- 
clusions— Moore  V.  Monumental  Mut.  Life  Ins. 
Co.,  77  App.  Div.  (N.  Y.)  209;  affidavit  held 
to  show  personal  knowledge  of  affiant — Hay- 
den   V.    Mullins,    76   App.    Div.    (N.    Y.)    69. 

16.  Burns  v.  Boland,  70  App.  Div.  (N.  Y.) 
555. 

17.  Turner  v.  Gonzales  (Tnd.  T.  App.)  64 
S.  W.  565;  see  title,  Eviden^je.  Affidavits  of 
attesting  witnesses  to  execution,  etc..  of  will 
not  fidmissiblp  if  testimony  can  be  had — Ket- 
temann  v.  Metzger,  23  Ohio  Cir.  Ct.  61;  see, 
also.  Wills. 

18.  A  judgment  cannot  be  taken  on  an 
affidavit  of  claim  unless  the  action  had  been 
brought  at  the  time  of  filing  the  affidavit — 
Miller  v.  Hart,  3  Pennewill   (Del.  Super.)   297. 

19.  Muir  V.  Preferred  Ace.  Ins.  So.,  203 
Pa.   338. 

20.  Hertz  V.   Sfdle,   20  Pa.  Super.   Ct.   88. 

21.  In  assumpsit-^Potts  v.  "Wellg,  3  Pen- 
newill (Del.  Super.)  11.  50  Atl.  62;  Reed  v. 
Fleming,  102  111.  App.  668. 

22.  Marston  v.  Trustees,  18  Pa.  Super. 
Ct.  547;  Silver  Peak  Min.  Co.  v.  Harris 
(Nev.)  116  Fed.  439;  Magruder  v.  Schley,  17 
App.  D.  C.  227;  Brown  v.  Ohio  Nat.  Bank,  18 


App.  D.  C.  598.  It  should  allege  facts  suffi- 
cient to  satisfy  the  court  that  a  good  de- 
fense exists  and  of  the  good  faith  of  defend- 
ant. The  affidavit  should  be  liberally  con- 
strued— Bi^own  v.  Ohio  Nat.  Bank,  18  Add 
D.  C.  598. 

23.  Marston  v.  Trustees,  18  Pa.  Super.  Ct. 
547. 

24.  Pennsylvania  R.  Co.  v.  Midvale  Steel 
Co.,  201  Pa.  624. 

25.  Pennsylvania  R.  Co.  v.  Midvale  Steel 
Co.,  201  Pa.  624;  Marston  v.  Trustees,  18  Pa 
Super.  Ct.  547. 

26.  Tilli  V.  Vandegrift,  18  Pa.  Super.  Ct, 
485;  Baum  v.  Union  Surety  &  Guaranty  Co., 
19    Pa.    Super.    Ct.    23. 

27.  Muir  V,  Preferred  Ace.  Ins.  Co.,  203 
Pa.    338. 

28.  O'Dell  V.  Meacham,  114  J3a.  910. 


29.  Brokers;  Factors;  Insurance;  Attor- 
neys; Corporate  agents,  see  Corporations. 
Municipal  Agents,  see  Counties.  Municipal 
Corporations,   and   other  municipal  topics. 

30.  Criminal  Law. 

31.  The  bank  may  collect  and  remit 
money  as  agent  though  due  under  a  lease — ■ 
Knapp  V.  Saunders,  15  S.  D.  464. 

32.  Campbell  v.  Manufacturers'  Nat.  Bank 
67    N.    J.   Law,    301. 


44 


AGENCY. 


bind  his  finiL**  A  power  of  anomej  in  her  separate  property,  given  by  a  wife  to 
her  husband  tmder  a  separation  agreement,  is  invalid.** 

B.  Creation  of  agency.'^ — A  mere  offer^  or  expressed  expectation,''  or  approval 
of  a  contract  and  receipt  of  its  benefits  by  the  principal,"  or  his  approval  of  its 
terms  pending  the  n^otiations  by  the  allied  agent,**  or  his  approval  and  exer- 
cise of  powers  thereunder,**  suflBciently  shows  the  agency. 

If  one  receiving  goods  to  sell  for  another,  has  an  option  to  pay  for  and  keep 
them,**  or  if  he  is  liable  for  the  price  regardless  of  sale,  the  other  having  an 
option  to  treat  them  as  sold,**  or  if  the  goods  are  received  under  a  contract  re- 
quiring him  to  sell  no  other  goods  of  the  kind,*'  and  under  such  contract  an  ex- 
act price  is  fixed,**  the  contract  is  a  sale  and  not  an  agency. 

Iniermediaries. — A  contract  which  provides  for  sale  of  goods  by  one  as  agent 
for  another,  and  holds  the  purchaser  liable  for  risks  of  transportation,  shows  no 
agency  between  the  agent  and  the  purchaser.*'  A  carrier  delivering  goods  shipped 
on  prices  "at  place  of  delivery,"  to  a  purchaser  who  has  named  a  consignee  to 
receive  and  pay  freight,  is  the  agent  of  the  buyer.**  If  the  agent  looks  to  one 
party  to  a  contract  for  instructions  and  receives  them,  he  is  not  the  agent  of  the 
other.*^  A  request  by  one  party  that  another  party  should  act  for  him  as  to 
third  parties,  creates  an  agency  when  so  aded  upon.**  A  request  by  one  to  an- 
other to  act  generally  for  him,  is  snfiBcient  to  show  his  agency  for  certain  acts, 
though  he  procure  them  to  be  done  by  a  third  person.** 

The  authority  of  an  agent  to  bind  his  principal  by  a  contract  within  the 
statute  of  frauds  must  be  in  writing,**  thou^  agency  for  an  undisclosed  prin- 
cipal to  execute  such  a  contract  may  be  shown  by  parol.'*  A  contract  of  agency 
for  sale  of  lands  must  describe  the  lands,*'  and  is  governed  by  the  statute  of 
frauds  where  made.^*     A  ~  ::  f  attorney  to  confess  judgment  on  a  note,  is 

not  a  power  of  at:  ~r.'"  -  ni:  a  war  revenue  stamp."    Fraud  of  the  agent 


may  prevent  creat: 


ncy.*^     There  can  be  no  agemcy  to  do  an  invalid 


33.  Polykranas  v  Kt :--'--  73  App.  D5" 
(N.  T.)  583- 

34.  Code  loupa,  f  3154;  and  In  conne::  -. 
therewitlL.  fS  2919,  31 61;  even  though  a  5:1:- 
ute  exists  allotrins  the  husband  and  'vriir  : 
act  for  each  other  for  their  matnal  be-r^: 
and  another  allows  her  to  convey  h^  rr  .:: 
as  sole — Sawyer  ▼.  Bigsart.  114  Iowa.  A  i  - 

35.  Contract  termed  a  'lease"'  for  Inir  r-- 
ing  and  operation  of  milL  construed  to  :  ^  ^ 
mere  agency — ^Petteiray  v.  Mclntyre.  131  N 
C   432. 

3C  By  letter  from  investment  compan"  :: 
2.  ':■----  g-r^  proposing  to  secure  a  porci:  ?^- 
:' :  -  r     rtgage — Opie  ▼.  Pacific  Inv.  C : 

VTis:.  -     -■-   T^ti.  231. 

37.  .3  by  one  of  two  parties  : : 

.'---■■-  :  ^   e^rpected  the  other  to   r  .7 

.  were  not  acted  up  or.   :  7 

-  =  T.O    agency    to    purchase 

-       =     :    -       -T        ::-?r    party — ^Parker     v. 

-      :    ::r    =    'r    -^f   !^sds — ^Payce    v. 


Its  aseat  £  -  .       .    . 

by  him  In  "    — 

Bonding  &   ^ ;.    I :  I_^__:Li-^:     C. 

Ill    Fed.    125. 

41.     Fleet  V.  Hertx.   S3  SlL  App.  5C4. 


■12.  Sil?  :f  r;2.;hine= — De  Kruif  v.  Elie- 
^  ::  ■    Z  etroit  Leg.  X.   1115. 

_  ^"      "     ;       -7    ■     Uallory.   70  App.   Div.    (K. 

44.  Roosevel:  V.  N"::sbajm.  75  ApD.  Div. 
X     T.:>    117. 

45.  Marnard  t.  VTeeks.  181  Mass.   368. 

4^.     I.:u-;s   "Werner   Sawmill  Co.  v.   Ferree, 

;■•-  Pa-  4:5. 

47.  3  "~  "";:  ■  5:-:e  Bank  v.  Sl  Joseph 
-      :  -:     1       :  =  Mo.   App.   395. 

-IS.      ^  :.i:n   v.   Xorth  Pac  Lijmber  Co. 

r       ■      ?^:     387. 

49.      ---s=r~.  :y  for  sending  telegram  as  shown 

"       :::    -    '-    ;  images  against  company  for 

:  T  :  r      ^  - — ^Western  T7nlon  TeL  Co.  v. 

:  -  =   :£     .-:.\      ; :  ?-.  159. 

'0.      ^r;T:  ;. .:-      :   l-2.se  beyond  one  year — 

=  -ri    ■       =--    ;r      ;  r    :.^;     App.    146. 

51.  r:r.:ri::  ::r  sale  of  realtv — Brodhead 
.-     ?.r:----i      ::"     Pa.    t.18. 

'2.  ?.tT-  5-„  Mo.  1S99.  §  3418;  Johnson  v. 
fr:     -.        4    :/:d     App.    605. 

-^.      :-    :i;:e:r  t.  Seott.  76  App.  Div.  (X.  T.) 

54.     Lr.  irr  .-. : :    :    rr..  June  13.  189« — Tres: 

r    T   ;  ;  rpose  of  ob- 

\::-  .'-  :  '.'  -  :     - rs    does    not 

r-      T  -    -r^      't       -:     iv    it.   the    grantee 

-    :       -        -    ■  :    r        ".self  ■where  it  ap- 

r    -  =    :  f    rr  i    —   -  -  r    -  r  - °r.ted    his   rela- 

-  ;ir::i= — ::i;i:-    Id  v.  Cool,  134 


AGENCY. 


45 


or  illegal  thing.'*  An  intermediary  between  parties  to  a  gambling  contract  is 
not  an  agent,  but  a  particeps  criminis."^  A  conspiracy  being  shown  by  some  evi- 
dence, though  circumstantial,  each  conspirator  is  an  agent  of  the  others  so  as 
to  render  his  declarations  admissible  against  them.'^*  A  corporation  is  bound  by 
contracts  of  its  duly  authorized  agents,^®  but  not  as  to  matters  beyond  the  subject 
of  their  agency.^"* 

C.  Implied  agency. — One  who  holds  out  another  as  possessed  of  certain  pow- 
ers to  act  for  him,®^  or  acquiesces  in  the  acts  of  the  other  is  liable  for  his  acts  within 
those  powers'*  and  formal  treatment  of  another  as  agent  is  not  necessary  to  es- 
tablish an  agency  as  to  third  persons  but  it  is  enough  if  he  is  allowed  to  act  as 
such.®'  An  implied  agency  results  as  to  third  persons  by  receipt  of  collateral 
securities  by  a  debtor  from  the  holder  of  his  note  to  sell  for  payment  of  the  note.®* 
The  surety  on  a  note  is  not  the  agent  of  the  payee.*''  The  payee  of  a  note,  which 
has  been  transferred  without  notice  to  the  maker  before  collection,  becomes  the 
agent  of  the  holder  for  such  collection.**  The  act  of  leaving  money  raised  by 
execution  of  bonds  to  a  title  company  with  the  company,  to  be  paid  out  on  the 
order  of  the  obligor,  did  not  make  the  company  his  agent.*^  In  domestic  econ- 
omy of  house  and  family,  the  wife  may  be  the  agent  of  her  husband.**  The 
custom  of  a  parent  to  send  a  child  for  goods  makes  the  child  his  agent  even  for 
articles  for  the  child's  use,**  though  the  custom  continues  after  the  child  becomes 
of  age.^* 

D.  Evidence  of  agency?'^ — The  party  setting  up  an  agency  must  prove  it;^^ 
and  to  establish  an  agency  the  evidence  must  be  clear  and  convincing,^^  though 


56.  A  cause  of  action  will  not  He  to  recov- 
er money  wrongfully  collected  from  a  third 
person  under  an  agreement  for  their  joint 
benefit — Needles  v.  Fuson  (Ky.  App.)  68  S. 
W.  644. 

57.  Munns  v.  Donovan  Commission  Co. 
(Iowa)    91   N.   W.   789. 

58.  Action  for  civil  damages  against  con- 
spirators— Mosby  V.  McKee,  etc..  Commission 
Co..  91  Mo.  App.  500. 

59.  Ross  V.  Sayler,  104  111.  App.  19;  Black 
V.   First  Nat.   Bank,   54  Atl.    (Md.)    88. 

60.  Western  Realty  &  Inv.  Co.  v.  Haase, 
53  Atl.  (Conn.)  861;  agreement  by  superinten- 
dent of  express  company  to  pension  injured 
employe — Chenoweth  v.  Pac.  Exp.  Co.,  93  Mo. 
App.  185;  Waters  v.  West  C.  St.  R.  Co.,  101 
111.  App.  265,  and  see.  President,  Chicago 
Pneumatic  Tool  Co.  v.  H.  W.  Johns  Mfg.  Co., 
101  111.  App.  349;  Magowan  v.  Groneweg  (S. 
D.)  91  N.  W.  335.  See,  also,  particularly,  Cor- 
porations. 

61.  Insurance  agency — Fire  Ins.  Co.  v. 
Slnsabaugh,  101  111.  App.  55. 

63.  Dickinson  v.  Salmon.  36  Misc.  (N.  Y.) 
169. 

63.  Agent  for  collection  of  rents — De  Witt 
V.  De  Witt,   202   Pa.    255. 

64.  People's  Sav.  Bank  v.  Smith,  114  Ga. 
185. 

63.  Opie  V.  Pac.  Inv.  Co.,  26  Wash.  505,  67 
Pac.  231. 

66.  Doe  V.  Callow,  64  Kan.  886,  67  Pac. 
824. 

67.  Fidelity  Trust  &  Safety  Vault  Co.  v. 
Carr  (Ky.  App.)  66  S.  W.  990;  Louisville 
Bank.  Co.  v.  Same,  Id.;  Murray  v.  Same,  Id.; 
Carr  v.  Ross,  Id. 

68.  Tyler  v.  Mut.  Dist.  Messenger  Co.,  17 
App.  D.  C.  85. 

G9.  Emery-Bird-Thayer  Dry  Goods  Co.  v. 
Coomer,  87  Mo.  App.  404. 


70.  Emery-Blrd-Thayer  Dry  Goods  Co.  v. 
Coomer,   87   Mo.  App.   404. 

71.  Facts  held  sufficient  to  show  that  an 
agent  was  acting  for  the  manufacturer  in  a 
particular  transaction  and  not  for  the  selling 
repre.sentative — Sherman  v.  Sherman  &  Lyon 
Co.  (N.  J.  Ch.)  53  Atl.  226.  Evidence  sufficient 
that  an  agent  who  became  trustee  between 
his  principal  and  another  was  the  principal's 
trustee,  not  the  other's — American  Bond.  & 
Trust  Co.  V.  Takahashi  (C.  C.  A.)  Ill  Fed. 
125;  Gathercole  v.  Peck  (Neb.)  91  N.  W.  513; 
Holton  V.  Stroud,  88  Mo.  App.  112;  sufficiency 
of  evidence  of  agency  In  purchase  of  horse  so 
as  to  bind  principal  for  price — Fritz  v.  Ken- 
nedy (Iowa)    93  N.  W.  603. 

72.  Agency  for  guardian — Schmidt  v.  Sha- 
ver. 196  111.  108.  An  employe  suing  on  a  con- 
tract alleged  to  have  been  made  with  a  fore- 
man must  show  the  latter's  authority  to  em- 
ploy— Ames  V.  D.  J.  Murray  Mfg.  Co.,  114 
Wis.   85. 

73.  Anzle  V.  Manchester  (Neb.)  91  N.  W. 
501;  sufficiency  of  evidence  of  agency  to  re- 
ceive payment  for  mortgagor — Boyd  v.  Pape. 
(Neb.)  90  N.  W.  646:  of  agency  for  sale  of 
cattle — Gentry  v.  Singleton  (Ind.  T.  App.)  69 
S.  W.  898;  to  send  question  of  agency  to  jury 
— Mosby  V.  McKee,  etc..  Commission  Co..  91 
Mo.  App.  500;  of  general  agejit's  authority 
to  contract — Mullin  v.  Sire,  37  Misc.  (N.  Y.) 
807;  to  show  agency  for  insurance  company 
in  securing  policy  and  adjusting  loss — Citi- 
zens' Ins.  Co.  V.  Stoddard,  197  111.  330;  of 
agency  and  subagency — Lucas  v.  Rader  (Ind. 
App.)  64  N.  E.  488;  agency  for  both  parties — 
Vercruysse  v.  Williams  (C.  C.  A.)  112  Fed. 
206;  agency  in  making  a  loan  on  mortgage — 
Booth  V.  Kessler.  62  Neb.  704;  in  procuring 
materials  on  which  a  mechanic's  lien  is  based 
— Le  Valley  v.  Overacker,  72  N.  Y.  Supp.  12; 
conflicting   evidence   of  authority — Droste   v. 


46 


AGENCY. 


it  is  admissible  if  not  convincing,"*  and  facts  which  may  be  constrned  either 
way  on  the  question  of  the  relation  will  be  considered  as  showing  its  existence 
where  an  agency  in  the  particular  transaction  is  otherwise  shown.'^  Circum- 
stances in  evidence  showing  that  one  was  an  agent  and  was  in  the  pursuit  of 
his  business  will  take  the  question  of  agency  in  a  particular  transaction  to  the 
jury.'* 

The  agent  may  testify  directly  as  to  the  relation/^  though  such  testimony 
alone  is  insufficient/*  but  his  declarations  or  conduct  cannot  be  shown,'®  unless 
there  is  other  evidence  of  the  alleged  agent's  authority,*'^  or  unless  his  principal 
has  recognized  or  acquiesced  in  his  acts.^^ 

The  declarations  of  the  principaP^  or  his  adoption  of  the  agent's  acts  will 
show  agencv.*'  Where  it  is  alleged  that  a  husband  acted  as  agent  for  his  wife 
in  the  purchase  of  machinery  placed  on  her  property,  directions  given  by  a  son. 
concerning  the  purchase  of  the  machinery  by  his  father,  are  properly  admitted  in 
support  of  a  defense  that  it  was  purchased  for  the  son.®*  That  one  person  em- 
ploved  and  permitted  another  person  to  act  for  him,  is  insufficient  to  show  that 
the  person  so  acting  was  not  an  agent  but  an  independent  contractor.®^ 

Mere  association  of  an  alleged  agent  with  one  who  was  a  real  agent  of  the 
principal  for  an  entirely  distinct  purpose,  does  not  show  the  existence  of  the 
agency.®®  Proof  of  the  relation  between  certain  persons  shows  an  agency  only 
for  ordinary  duties  of  the  relation.®^  Agency  of  a  husband  for  his  wife  will  not 
be  presumed  from  marriage.**  nor  is  additional  evidence  of  his  agency  for  her 
in  another  transaction  conclusive  evidence.®^  Mere  possession  of  property  of  an- 
other does  not  show  an  agency  to  deliver  it  to  a  third  person  so  as  to  estop  the 
owner  or  liis  guardian  from  deming  the  agency.^**  Where  it  is  conceded  that  no 
change  in  the  relations  took  place  between  the  time  of  two  transactions,  agency 
in  the  later  transaction  may  be  shown  by  acquiescence  of  the  principal  in  the 
former.®^ 


Metropolitan  Hotel  Supply  Co..  74  N.  T.  Supp. 
613. 

Dickinson  v.  Salmon,   36  Misc.   (N.  T.) 


74. 

169. 
7.5, 
7«. 


Detwildef  v.  Heckenlaible.  63  Kan.  627.  , 
Domasek  v.  Kluck.  113  ^Vis.  336.  j 

...  O'Neill  V.  TVilcox.  115  Iowa,  15;  Amer-  ; 
lean  Telegraph  &  Telephone  Co.  v.  Kersh 
(Tex.  Civ.  App.')  66  S.  "^'.  74;  American  Box 
Mach.  Co.  Bolnick.  36  Misc.  (N.  Y.)  765:  Gar- 
ber  V.  Blatchley.  51  W.  Va.  147.  In  an  action 
ag-ainst  a  mother  for  sroods  delivered  to  her 
on  her  daughter's  order,  the  daughter  may 
be  asked  whether  her  mother  gave  her  au- 
thority to  order  the  goods — Stone  v.  Cronin, 
72  App.    Div.    (X.   Y.)    565. 

78.  American  Box  Mach.  Co.  v.  Bolnick,  36 
Misc.    (N.   Y.)    765. 

70.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'Fleur.  104  111.  App.  165.  A 
solicitor  carrying  stationery  of  the  alleged 
principal  and  samples,  cannot  prove  his 
agency  on  his  own  declaration — Peninsular 
Stove  Co.  v.  Adams  Hardware  &  Furniture 
Co..  93  Mo.  App.  237:  Americus  Oil  Co.  v. 
Gurr.  114  Ga.  624;  Mentzer  v.  Sargeant.  115 
Iowa.  527;  Garber  v.  Blatchley.  51  "^.  Va,  147; 
■^ise  v.  International  Soc.  37  Misc.  (N.  Y.) 
871.  Declarations  made  while  in  the  trans- 
action of  business  are  not  admissible — Parker 
V.  Brown.  131  N.  C.  264.  The  rule  applies  to  a 
subagent — Lucas  v.  Rader  (Ind.  App.)  64  N. 
E.  488;  agency  to  make  lease — Bible  v.  Cen- 


tre Hall  Borough,  19  Pa.  Super.  Ct.  136; 
Smith  V.  Delaware  &  A.  Telegraph  &  Tele- 
phone Co.  (N.  J.  Err.  &  App.)  53  Atl.  818: 
insurance  agent — Baldwin  v.  Conn.  Mut.  Life 
Ins.   Co.    (Mass.)    65  N.   B.   837. 

SO.  Bird  v.  Phillips.  115  Iowa.  703;  Le 
"\'alley  v.  Overacker,  12  X.  Y.  Supp.  12;  Peter- 
son v.  Stockton  &  T.  R.  Co..  134  Cal.  244; 
Bibby  v.  Thomas,  131  Ala.   350. 

81.  Smith  v.  Delaware  &  A.  Telegraph  & 
Telephone  Co.   (N.  J.  Err.  &  App.)  53  Atl.  818. 

S3.     Arnold    v.    Teel    (Mass.)    64   N.    E.    413. 

S3.  Orders  taken  for  goods — Kelly  v. 
Burke,    132    Ala.    235. 

84.  Rider — Ericsson  Engine  Co.  v.  Fowler, 
37  Misc.    (N.   Y.)    810. 

85.  Bianki  v.  Greater  American  Exposition 
Co.  (Neb.)   92  N.  ■^.  615. 

86.  Leary  v.  Albany  Brewing  Co..  77  App. 
Div.   (N.  Y.)   6. 

87.  TVikle  v.  Louisville  &  N.  R.  Co.  (Ga.) 
42  S.  E.  525;  authority  of  husband  to  sell 
wife's  lands — Bird  v.  Phillips.   115  Iowa,   703. 

88.  Brown  v.  Woodward  (Conn.)  53  Atl. 
112. 

89.  Cushman  v.  Masterson  (Tex.  Civ.  App.) 
64   S.  W.   1031. 

90.  Deposit  of  an  assignment  of  a  judg- 
ment by  a  guardian  does  not  authorize  the 
depositary  to  deliver  it  to  the  guardian's  as- 
signee— Schmidt  v.    Shaver.   196   111.    108. 

91.  Domasek  v.  Kluck,   113  "Wis.    336. 


AGENCY. 


47 


The  authority  of  an  agent  to  sell  land  given  before  passage  of  an  act  requir- 
ing such  authority  to  be  in  writing,  may  be  shov.n  orally  or  by  any  pertinent  evi- 
dence."- A  power  of  attorney  from  a  wife  to  her  husband  for  execution  of  all 
papers  relating  to  a  firm  of  which  she  was  a  member,  and  his  testimony  that 
he  acted  for  her  in  all  firm  matters,  shows  his  agency.**^ 

E.  Subagency  or  delegation  of  the  relation. — An  agent  cannot  delegate  lus 
power,®*  but  he  may  appoint  subagents  when  it  is  necessary  in  the  business  of  his 
principal,"'  or  when,  from  its  character  and  under  business  custom,  the  business 
of  the  principal  cannot  be  accomplished  otherwise.®®  One  taking  charge  of  busi- 
ness of  a  principal  under  directions  of  a  general  agent  or  superintendent,  must 
be  presumed  to  have  authority  as  a  sub-agent.®^ 

F.  Estoppel  to  assert  or  deny  agency  may  arise  from  a  holding  out.^^ — A  prin- 
cipal who  allows  his  agent  to  appear  as  owner,  or  in  full  power  of  disposition  of 
his  property,  whereby  others  are  misled,""  or  who  places  liis  agent  in  possession 
of  property  so  that  the  latter  is  enabled  to  misappropriate  funds  borrowed  there- 
on,^ is  estopped  to  deny  the  agent's  authority;^  but  the  rule  will  not  apply  where 
third  persons  do  not  know  who  is  the  owner  of  the  property.^  Holding  out  an- 
other as  agent  in  previous  similar  transactions  will  not  estop  a  denial  of  the  rela- 
tion where  it  appears  that  in  the  particular  transaction  the  alleged  agent  was  the 
eub-agent  of  defendants  without  authority  to  bind  them  as  principal;^.*  Wlien 
the  agent  has  dealt  with  third  persons  the  principal  cannot  thereafter  disavow  to 
the  other's  detriment.' 

An  attorney  in  fact  who  acts  under  an  instrument  giving  him  authority  can- 
not deny  his  capacity.* 

G.  Termination  of  relation.'' — A  contract  of  agency  without  time  limit  may 
be  terminated  on  reasonable  notice*  by  either  party  in  good  faith  :®  but  where  tlie 
agent  is  entitled  to  an  interest  because  of  services  rendered,  the  principal  cannot 
revoke  the  agency  without  compensation.^*'  The  agent's  right  to  commissions  on 
renewals  of  contracts  secured  by  him,  is  not  such  an  interest  coupled  with  his 
power  as  to  prevent  revocation  of  the  agency  by  the  principal  within  its  terms." 


92.  Civ.  Code  Mont..  §§  2185,  3085.  and  Code 
Civ.  Proc.  Mont..  §  1276,  requiring  written  au- 
thority, did  not  affect  acts  prior  to  July  1st. 
1895 — Cobban  v.  Hecklen  (Mont.)  70  Pac.  805. 

93.  People  V.  Lappin,  8  Detroit  Leg.  N. 
(Mich.)   909. 

94.  Lucas  V.  Rader  (Ind.  App.)  64  N.  E. 
488.  He  must  have  special  directions — 
Floyd  V.  Mackey.  23  Ky.  Law  R.  2030.  If  he 
has  been  employed  because  of  his  particular 
skill — Bromley  v.  Aday,  70  Ark.  351. 

95.  Insurance  Co.  of  N.  A.  v.  Thornton,  130 
Ala.  222.  See  infra,  §  2a  as  to  implied  au- 
thority. 

96.  Breck  v.   Meeker   (Neb.)    93  N.  W.   993. 

97.  Foreman  in  construction  of  telegraph 
lines  supervising  work  under  direction  of 
general  superintendent — Fritz  v.  "Western 
Union  Tel.  Co.   (Utah)   71  Pac.  209. 

98.  See  ante.  §  1-C  as  to  implied  agency. 
General  agent  for  making  investments  had 
been  accustomed  to  collect  notes  due  princi- 
pal— Cheshire  Provident  Inst.  v.  Fuesner 
(Neb.)  88  N.  W.  849.  Evidence  held  insuffi- 
cient to  support  an  estoppel  by  holding  out 
a  depositary  as  agent — Schmidt  v.  Shaver, 
196    111.    108. 

99.  Williams    v.    Pelley,    96    111.    App.    346. 
1.     Investment  agent — Morris  v.  Joyce   (N. 

J.  Ch.)    53  Atl.  139. 


2.  See  "holding  out  doctrine"  discussed  In 
Estoppel. 

3.  Hefferman  v.   Bateler,   87   Mo.  App.   316. 

4.  Ruddock  Co.  V,  Johnson   (Cal.)    67  Pac. 

5.  Pochin  V.  Knoebel  (Neb.)  89  N.  W.  264. 
Failure  of  an  agent  to  account  for  money 
f^ollected  on  a  note  will  not  enable  his  prin- 
cipal to  repudiate  the  agency  and  collect 
again  from  the  maker.  Receipt  of  an  order 
for  goods  from  an  agent  and  a  check  in  part 
payment  from  the  buyer  without  objection 
and  application  of  the  money  to  his  own  use 
will  prevent  the  principal  from  denying  the 
agency  and  refusing  to  deliver  the  goods — 
Parrer   v.    Caster    (Colo.    App.)    67    Pac.    171. 

6.  Walters  v.  Bray  (Tex.  Civ.  App.)  70  S. 
W.  443. 

7.  Sufficiency  of  evidence  of  continuation 
of  agency — Johnson  v.  Doon,  %  Detroit  Leg. 
N.  409;  termination  of  insurance  agency — An- 
drews V.  Travelers'  Ins.  Co.,  24  Ky.  Law  R. 
S44. 

8.  Barrett  v.  Gllmour  (Eng.)  Com'I  Cas. 
72. 

9.  Broker — Huffman  v.  Ellis  (Neb.)  90  N. 
W.  552;  Taylor  v.  Martin   (La.)   33  So.   112. 

10.  Royal  Remedy  &  Extract  Co.,  90  Mo. 
App.  53. 

11.  Andrews  v.  Travelers'  Ins.  Co.,  24  Ky. 
Law  R.    844. 


48 


AGEaiCT. 


Death  will  terminate  the  agency  though  the  agent  is  trying  to  recover  land  under 
a  power  giving  him  one-half  the  valne  recovered."  A  snbagent  employed  by  and 
accountable  directly  to  a  general  agent  has  no  such  contract  of  agency  with  the 
principal  as  survives  removal  of  the  general  agent  under  his  contract.^'  Appoint- 
ment of  a  receiver  for  the  principal  will  not  terminate  a  contract  of  agency  where 
the  receiver  affirmed  it  and  received  benefits  under  it."  Becord  of  a  deed  by 
the  owner  of  land  is  notice  to  his  agent  and  aU  dealing  with  the  latter,  of  the 
revocation  of  the  authority  of  the  agent  to  sdl  the  land." 

§  2.  Bights  and  liabUUiss  of  principal  as  to  third  persons.  A.  Actual  and 
implied  authority  to  bind  principal. — ^A  mere  agent  cannot  del^ate  his  authority," 
without  special  directions,^'  especially  if  he  has  been  employed  because  of  his  pe- 
culiar flatness."  An  agent  may  appoint  subagenis  where  necessary  to  proper  transac- 
tion of  the  business  of  the  principaL^* 

The  principal  is  bound  by  acts  and  knowledge  of  his  agent  within  the  scope 
of  the  agency,*^  unless  the  public  is  the  principal**  and  is  pr^nmed  to  have  had 
notice,  actual  or  constructive,  of  all  such  acts  of  the  agent-**  Declarations  of 
agent,  made  while  acting  in  the  scope  of  his  authority,  bind  his  principal,**  but 
not  dedarations  after  the  event  or  completion  of  his  agency,**  or  without  the 
line  of  his  duties,**  but  such  declarations  cannot  be  received  unless  the  agency  is 
proved.*'  '  Admission  of  an  agent,  to  bind  his  principal,  must  be  made  while  act- 
ing for  the  principal  and  relate  to  tiie  subject  of  the  agency,**  and  when  so  made, 
they  will  bind  the  principal  as  though  he  made  them,**  Delivery  of  a  deed  to 
an  agent  is  deUverj  to  his  piindpaL** 

If  the  agent  acts  for  himself  a  third  person,  thou^  with  knowledge  of  an 
agency  cannot  recover  from  the  jHincipal  on  dealings."  Third  persons  are  not 
bound  by  knowledge  of  an  agent  dealing  with  them  for  another.'- 

The  implied  powers  of  an  agent  are  those  reasonable  and  necessary  to  ac- 
complishment of  the  purpose  of  the  agency,**  and  if  no  directions  are  given  him 


12-. 

1  o . 


14. 

lo. 


l.Iasaenb' 


12?  N'.   C. 


5  S_ 

17.    f::;  : 
IS.     Br- 


:'  '.-.:-   ■;  -•  -ecord  of  a  deed — 
T   -     :    .     App.)   71  s.  w. 

Rader    (Ind.  App.)    €4  N.   E. 

::^      --    23  Kr.  Law  R.  2030. 
":  Ark.  351. 
: :  y'   X.  V.  Thornton.  130 


-        ^2nk  zs   prind- 
Tr-    Ci      App.)   66  S. 

"5  App. 
-    .    -  fsioners 

;-ison.  Ill  "Wis.  334. 

^   --le.    104   HL   108: 

I3S.  Co.,  8  Detroit 

-        -iv  V.  Sweasy.  69 

■  r — San   An- 

:    fTex.   Ctr. 

"-    120  N. 

Co,  67 

e  Fund 

.      7"  r  i.  4i.      Declara- 

r^-.i  as   to   matters 

-         -  -  the  latter  on 

7  -    Co.  V.  Hart- 

?i    £  -er    Ct.  384. 


P.:?e  V.  City  of  St.  I^onls.  165  Mo.  636. 

:-■■    c  Casualty  Co.  v.  Haines  (C.  C.  A.) 

■  T :   Baldwin  v.   Central  Sav.  Bank 

..--   •    67  Pac  179;  CaUaway  ■^-  Eqji- 

~T    ^-  Co..  67  X.  J.  Law.  44:  MeLas^n  -. 

J  N*    VT.  R.  Co.  (Iowa)   89  X.  W.  2-53 

Lrir;      ■•.    Albany    Brew.    Co..    77    App. 

■    —  ='.r  that  the  agent  knew 

elonged    to   plaintiff    or 

:   for  him  at  the  time — 

T      r  :    -  101. 

;:----  -^ns*    Nat.    Bank.    74 

: '    T  :  =  -?  V.  West  Chica- 

?.      :  155;  Stanton   v. 


(Tex.  CiT.  a:  -  -1:7. 

SOU    Bot :      ^  ;    X.  a  325. 

M.     Dealir.r;  ".:  _  r^:   ra  =  h!?r— ' 

V.  Mannfac :  u  r  T  r  5     >"i:     ^    r. -:     :"    :. 
SOL 

3S.     The     -=    -    -    ;=    -  -- 

edge  of  as  ^    -     ^  -  — , 

man-Amer 

33.  Na: 
C  A-)  ii: 
mission  C' 
save    mor.  - 

Woodrnff  •    . . .-       -  r.    -  -  1  - 

Law  R.  1551-    AJThority  to  make 
not  imply  aathority  to  collect  pr;r 


AGENCY. 


49 


for  the  manner  of  its  accomplishment  he  may  employ  any  recognized  usage  or 
mode  of  dealing,^*  unless  such  usage  is  not  within  the  knowledge  of  persons  to 
be  affected. ^^  A  warranty  made  by  an  agent  which  is  no  greater  than  the  law 
would  imply,  will  bind  the  principal.^' 

Acts  of  the  agent  are  binding  after  discharge  and  will  bind  his  principal  where 
relied  upon  by  a  third  person  in  good  faith  and  without  knowledge  of  the  dis- 
charge.^^ A  memorandum  by  an  owner  containing  a  description  of  land  with  a 
price  named  to  an  agent,  does  not  show  his  authority  to  execute  a  written  contract 
of  sale  for  the  owner.^^ 

Evidence  and  proofs}^ — Where  an  agency  has  been  established  by  competent 
proof,  the  principal  must  prove  that  a  third  person  had  notice  of  its  termina- 
tion,*" since  it  will  be  presumed  in  favor  of  such  third  person,  that  the  agency 
continues  until  he  has  notice.*^  To  admit  evidence  of  the  agent^s  acts  as  binding 
the  principal,  the  agency  must  first  be  shown.*-  Eecitals  in  a  deed  executed  by 
an  agent  may  be  considered  in  determining  his  authority.*'  Where  one  person 
has  allowed  another  to  act  for  him,  or  failed  to  disavow  such  action,  evidence  of 
conversations  between  them  is  admissible  on  the  question  of  the  agency,  so  as  to 
bind  the  alleged  principal  to  a  third  person.**  The  extent  of  an  alleged  agency 
cannot  be  shown  by  declarations  of  one  claiming  to  be  the  agent.*^  Eatification 
of  similar  acts  will  show  authority.*® 

B.  Apparent  autlioriiy  and  unauthorized  or  wrongful  acts  of  agent;  torts. — 

The  acts  of  an  agent  within  limits  of  his  apparent  authority  bind  the  prin- 
cipal;*^ especially  if  the  principal  intentionally  or  negligently  allows  third  per- 
sons to  act  thereon,*^  or  places  the  agent  in  such  a  position  that  third  persons  are 


Interest;  nor  authority  to  collect  Interest 
authority  to  collect  principal  (Hefferman  v. 
Boteler.  87  Mo.  App.  316);  contra  where  such 
authority  has  been  held  out  by  a  course  of 
making  collections — Cheshire  Prov.  Inst.  v. 
Fuesner  (Neb.)  88  N.  W.  849.  A  creditor's 
agent  to  procure  transfer  of  accounts  and 
notes  may  release  guarantors  of  the  debtor 
in  consideration  of  the  transfer — Martin  v. 
Rotan  Grocery  Co.  (Tex.  Civ.  App.)  66  S.  W. 
212. 

34.  Rohrbough  v.  U.  S.  Exp.  Co..  50  W.  Va. 
148.  An  agent  to  sell  conditionally  and  to 
recover  goods  on  condition  broken  may  allow 
a  purchaser  to  take  an  article  on  trial  and 
deposit  of  part  payment — Jesse  French  Piano 
&  Organ  Co.  v.  Cardwell,   114  Ga.   340. 

35.  State   V.    Chilton,    49   V^.    Va.    453. 

36.  Warranty  of  goods  sold — H.  B.  Smith 
Co.  V.  Williams  (Ind.  App.)  63  N.  B.  318. 

37.  Continental  Fire  Ins.  Co.  v.  Brooks, 
131   Ala.   614. 

38.  Donnan  v.  Adams  (Tex.  Civ.  App.)  71 
S.  W.  580. 

39.  Sufficiency  of  evidence  of  payment  to 
agent  to  bind  principal — Fay  &  Eagan  Co.  v. 
Causey,  131  N.  C.  350;  sufficiency  of  evidence 
as  to  limitation  of  powers — Lyle  v.  Addicks, 
62  N.  J.  Bq.  123. 

40.  Insurance  agency — Merchants'  Ins.  Co. 
V.  Oberman,  99  111.  App.  357. 

41.  Merchants'  Ins.  Co.  v.  Oberman,  99  HI. 
App.   357. 

42.  Warehouse  agent  receiving  attached 
goods  from  sheriff  without  authority — Koyu- 
kuk  Min.  Co.  v.  Van  De  Vanter  (Wash.)  70 
Pac.  966;  receipt  of  money  by  a  wife  for  her 
husband — Brown  v.  Woodward  (Conn.)  53 
Atl.   112. 

43.  The  court  may  look  to  the  age  of  the 

Cur.  Law  4. 


transaction  and  the  assertion  of  title  there- 
under, though  the  deed  is  not  thirty  years 
old — Kirkpatrick  v.  Tarlton  (Tex.  Civ.  App.) 
69  S.  W.  179. 

44.  Civ.  Code  Cal..  §§  2300.  2317-2319— 
Curtin  v.  Ingle,  137  Cal.  95,  69  Pac.   836,  1013. 

43.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'Fleur,  104  111.  App.   1G5. 

46.  Harrison  Nat.  Bank  v.  Austin  (Neb.) 
91  N.  W.  540. 

47.  Darby  v.  Hall  (Del.  Super.)  3  Penne- 
will,  25.  A  wife  is  responsible  for  fraud  of 
her  husband  who  acted  as  agent  in  selling 
her  land,  and  signed  the  contract  with  her — 
Quarg  V.  Scher,  136  Cal.  406,  69  Pac.  96; 
Piano  Mfg.  Co.  v.  Nordstrom  (Neb.)  88  N.  W. 
164;  shipper's  agent — Nichols  v.  Oregon 
Short  Line  R.  Co.,  24  Utah,  83,  66  Pac.  768; 
trainmaster  as  agent  to  employ  physician  to 
attend  injured  employes — Southern  R.  Co.  v. 
Humphries,  79  Miss.  761;  authority  of  "man- 
ager" and  selling  agent  of  mining  company 
to  "buy" — Gates  Iron  Wks.  v.  Denver  En- 
gineering Wks.  Co.  (Colo.  App.)  67  Pac.  173. 
General  agent  In  mercantile  business  may 
buy  on  credit  though  Instructed  otherwise — 
Pacific  Biscuit  Co.  v.  Dugger,  40  Or.  362,  67 
Pac.  32;  McKinney  v.  Stephens,  17 -Pa.  Super. 
Ct.  125;  agent  as  holding  over  for  principal 
after  expiration  of  lease — Byxbee  v.  Blake 
(Conn.)  51  Atl.  535.  A  general  agent  to  buy 
and  sell  goods  may  pay  for  goods  bought  by 
indorsing  checks  of  the  principal — Graton, 
etc..  Mfg.  Co.  V.  Redelsheimer,  28  Wash.  370, 
68    Pac.    879. 

48.  Lebanon  Sav.  Bank  v.  Henry  (Neb.)  89 
N.  W.  169;  Faulkner  v.  Simms  (Neb.)  Id.  171; 
Harrison  Nat.  Bank  v.  Williams  (Neb.)  Id. 
245. 


50 


AGENCY. 


justified  in  presuming  that  he  has  certain  authority;"  where  a  principal  tre^its  his 
agent  so  that  third  persons  following  business  custom  are  led  to  believe  that  tne 
agent  has  certain  powers,  the  principal  is  bound;*®  as  where  one  of  two  parties 
to  a  contract  notifies  the  other  that  all  such  transactions  are  arranged  for  him 
by  another  as  agent,  the  other  party  is  justified  in  treating  such  agent  as  having 
an  ostensible  agency  to  modify  a  contract  already  made.'^ 

Private  instructions  to  a  general  agent  by  his  principal  cannot  be  shown  to 
prevent  the  principal's  liability  on  contracts  made  by  the  agent  within  the  scope 
of  his  authority,"  since  it  is  necessary  that  third  persons  should  have  knowledge 
of  such  limitations." 

One  with  knowledge  of  an  agent's  limited  authority,**  and  with  means  of 
learning  the  truth  of  alleged  false  statements  by  the  agent,*'  or  with  notice  that 
the  aeent's  acts  must  be  approved  by  the  principal,*'  deals  with  him  outside  that 
authority  at  his  own  peril,  and  if  the  agent  is  a  special  agent  third  persons  must 
ascertain  his  authority  at  their  peril.*'  Third  persons  are  justified  in  relying  on 
the  apparent  authority  of  an  agent  as  held  out  to  them,*®  and  need  not  prove  his 
authority  to  make  a  contract  within  his  apparent  authority*'  tmless  the  powers 
assumed  by  the  agent  are  contrary  to  ordinary  business  custom  and  there  is  no 
showing  of  special  authority,®*  or  unless  the  acts  violate  the  known  custom  of  the 
principal,®^  when  such  third  persons  assume  the  burden  of  showing  his  author- 
itv.«*  But  one  who  was  not  misled  by  the  apparent  authority  cannot  urge  it  to 
fix  liability  on  the  principal."  A  third  person  cannot  assume  that  the  relation 
of  agency  "existed  where  not  ostensible,  nor,  though  an  agency  really  exists,  can 
he  assume  its  scope  without  inquiry."  An  agent  cannot  bind  his  principal  beyond 
the  scope  of  his  authority  where  the  third  person  knows  such  authority,®*  but  they 
are  entitled  to  rely  upon  statements  of  the  agent  respecting  the  subject  matter  of 


49.     Lebanon  Sav.  Bank  v.  Henry  (Neb.)  89  \ 
X.  W.  159;  Faulkner  v.  Simms   (Neb.)  Id.  171; 
Harrison  Nat.    Bank    v.   Williams    (Neb.)    Id. 
245. 

30.  An  Investn^ent  aeent  with  general 
powers  may  be  regarded  as  having  powers 
to  collect  and  extend  time  for  payment — 
Harrison  Nat.  Bank  v.  Austin  (Neb.)  &1  N. 
W.   540. 

51.  Civ.  Code  Cal..  §  2300 — ^Union  Paving 
&  Contract  Co.  v.  Mowry    (Cal.)    70  Pac.   81. 

52.  Hlrschhom  v.  Bradley  (Iowa)  90  N.  W. 
592.  On  the  question  of  the  authority  of  a 
general  agent,  instances  of  his  general  man- 
agement of  the  principals  property  in  his 
absence  may  be  sho'wn — ^Mullin  v.  Sire,  37 
2kasc  (N.  T.)  807. 

53.  Hall  V.    Hopper    (Neb.)    90   N.    •^.    549. 

54.  Thrall  v.  ■Wilson.  17  Pa.  Super  Ct.  376; 
express  agent — Rohrbough  v.  IT.  S.  Exp.  Co., 
50  W.  Va.  14?:  Modern  Woodmen  v.  Tevls  (C 
C.  A.)   117  Fed.   369. 

55.  Sale  of  real  estate  by  agent — Samson 
▼.  Beale,   27  Wash.   557.   68   Pac,   180. 

Se.  Notice  by  an  agent  to  a  buyer  that 
the  principal  will  fix  the  price  of  goods  pre- 
vents a  claim  of  apparent  authority  in  the 
agent  to  sell  for  a  certain  price — ^Lucas  v. 
Rader   (Ind.  App.">    64  N.  E.  488. 

57.  Fraudulent  sale  of  principal's  stock  by 
agent — Fay   v.   Slaughter.   194   IlL   157. 

58.  Murray  v.  Sweasy.  69  App.  Div.  (N.  Y.) 
45. 

59.  The  burden  is  on  the  principal  to  over- 
come the  presumption  of  the  agent's  author- 


ity— Nichols  V.  Oregon  S.  L.  P..  Co..  24  Utah. 
S3,  65  Pac.   75S. 

60.  -\  p--:rchaser  cannot  give  a  piano  sales 
agent  notes  payable  to  himself  unless  the 
latter's  special  authority  appears — Bald'svin 
V.  Tucker.  23  Ky.  Law  R.  153S.  That  a  lender 
bad  possession  of  security  for  a  loan  shows 
that  his  agent  who  negotiated  the  loan  and 
collected  interest,  had  no  authority  to  collect 
the  principal — Hefferman  v.  Boteler.  87  Mo. 
.A.pp.  316;  Corbett  v.  Waller.  27  VTash.  242.  67 
Pac.  567;  likewise  where  the  agent  never  had 
possession  of  the  evidence  of  the  debt — Dew- 
ey V.  Bradford  (Neb.)  89  N.  W.  249.  See. 
also,  Bradbury  v.  Kinney.  Id.  257;  Clarkson 
v.   Reinhartz    (Tex.   Civ,  App.)    70    S.   W.    111. 

61.  Taking  of  money  orders  by  employe  of 
express  agent  •without  coUecting  charges 
thereon — Rohrbough  v.  U.  S.  Exp,  Co.,  50  W, 
Va.  148. 

62.  Hefferman  v.  Boteler.  87  Mo.  App.  316; 
Dewey  v.   Bradford  (Neb.)   89  N.  "^.  249. 

63.  Apparent  authority  of  mine  boss  to 
employ  laborers  Mrithout  approval  of  super- 
intendent— Patterson  v.  Neal  (Ala.)  33  So.  39. 

64»  The  giving  of  a  deed  to  another  on 
his  false  representations  regarding  a  loan 
from  a  third  person  to  the  grantees  did  not 
create  an  agency  so  as  to  bind  them  to  se- 
cure a  loan  to  him  personally  by  such  third 
person,  the  latter  being  bound  to  ascertain 
the  extent  of  the  agency — Maedonald  v.  Cool. 
134  Cal.  502. 

65.  Power  of  auctioneer  to  extend  time  of 
payment  beyond  stated  terms  of  sale — ^Mc- 
Kieman  v.  Valleau  (R.  L)  51  AtL  102, 


AGENCY. 


51 


his  agency,"  Eepresentations  by  agents  as  to  general  authority  to  act  for  their 
principal  in  all  matters  relating  to  the  subject  of  the  agency  cannot  be  held  to 
show,  authority  as  to  particular  acts  alone,*''  Third  persons  having  knowledge  of 
an  agency  must  take  notice  of  its  limitations,'^  as  where  they  are  expressed  in  the 
contract  executed  by  the  agent/"  and  this  applies  to  a  power  of  attorney  unless  the 
principal  received  the  benefits  of  his  agent's  acts  in  excess  of  authority.'^"  Third 
persons  are  bound  by  terms  of  a  contract  made  with  an  agent  which  limits  his 
authority/^  though  they  may  have  dealt  with  a  subagent/^  and  the  contract  of 
agency  containing  instructions  may  be  shown  on  the  question  of  his  powers  to 
bind  his  principal.'''  The  principal  cannot  be  held  liable  on  a  contract  by  his 
agent  until  it  is  shown  that  he  has  ratified  the  agent's  acts,  where  the  contract 
specifies  that  it  is  subject  to  approval  by  the  principal.''* 

Evidence  and  questions  of  fact.""^ — In  determining  whether  an  agent  has  cer- 
tain powers  with  regard  to  his  principal's  property,  other  instances  in  which  such 
powers  were  exercised  may  be  sho^vn  as  bearing  on  the  apparent  scope  of  his  author- 
ity''® and  other  transactions  of  a  like  character  with  the  same  agent,  and  matters 
relating  to  custom  in  the  business,  may  be  shown  on  the  question  whether  third  per- 
sons could  be  held  to  have  notice  of  peculiar  limitations  on  the  agent's  instructions.'''' 
Apparent  authority  of  an  agent  is  a  question  for  the  jury,''^ 

Unauthorized  and  tortious  acts. — An  unauthorized  agreement  by  an  agent  is 
not  binding  on  the  principal  unless  ratified,'®  but  agreements,  representations  and 
mistakes  of  an  agent  made  as  a  part  of  the  res  gestae  of  his  transaction  for  his 
principal,  will  bind  the  latter,^"  If  a  principal  desires  to  repudiate  acts  of  an 
agent  in  excess  of  authority,  he  must  refuse  to  receive  the  benefits  of  the  agent's 
acts  or  restore  them  if  already  received,®^  and  if  he  has  held  out  his  agent  to  others 
as  possesssed  of  certain  powers,  with  notice  to  them  to  honor  his  acts  therein,  he 
cannot  recover  from  persons  dealing  with  the  agent,  because  of  fraud  committed 
by  him  m  the  busmesss  of  his  agency,*^  Where  powers  of  a  special  agent  are 
limited,  his  contracts  to  be  submitted  to  his  principal,  a  secret  agreement  between 
him  and  the  other  party  to  a  proposal  to  a  contract  will  not  bind  the  principal.®' 


66.  Insured  may  rely  on  agent's  statement 
that  a  vacancy  permit  has  been  attached  to 
his  policy  by  the  company  or  its  general 
agents — Morgan  v.  Illinois  Ins.  Co.,  9  Detroit 
Leg.   N.  84. 

67.  Real  estate  agents — Samson  v.  Beale, 
27  Wash.  557,  68  Pac.  180. 

68.  Corporate  agent — Jackson  Paper  Mfg. 
Co.  V.  Commercial  Nat.  Bank,  199  111.  151. 

69.  Insured  and  beneficiary  are  bound  by 
limitations  expressed  in  insurance  policy — 
Modern  Woodmen  v,  Tevis  (C.  C.  A.)  117 
Fed.  369. 

70.  Money  received  by  the  attorney  In  fact 
in  excess  of  authority  cannot  be  recovered 
from  the  principal — Morton  v.  Morris  (Tex. 
Civ.  App.)   66  S.  W.  94. 

71.  Porter  v.  Home  Friendly  Soc,  114  Ga. 


Lucas  V.  Rader    (Ind.   App.)    64   N.   B. 


937. 
72. 

488. 

73.  J.  I.  Case  Thresh.  Mach.  Co.  v.  Eich- 
Inger,  15  S.  D.  530. 

74.  Sale  of  machinery  by  agent  under 
agreement  to  take  In  part  payment  certain 
second-hand  machinery — Elfring  v.  New 
Birdsall  Co.    (S.  D.)   92  N.  W.   29. 

75.  Advertisement  in  city  directory  de- 
scribing agent  as  "local  manager"  is  ad- 
missible— Graton,  etc.,  Mfg.  Co.  v.  Redel- 
sheimer,  28  Wash.   370,   68  Pac.  879. 


76.  On  the  question  whether  an  agent  of 
a  landlord  had  power  to  consent  to  the  sale 
of  crops  by  the  tenant,  thereby  waiving  the 
landlord's  lien  thereon,  evidence  of  other 
sales  of  produce  by  the  tenant  with  the 
agent's  knowledge  and  consent  is  properly 
admitted  to  show  apparent  scope  of  his  au- 
thority in  dealing  with  the  landlord's  prop- 
erty— Fishbaugh  v.  Spunaugle  (Iowa)  92  N. 
W.  58. 

77.  It  may  be  shown  by  cross-examination 
that  the  principal  had  never  objected  to  the 
agent's  acts  in  similar  transactions — Clark- 
son  v.  Relnhartz  (Tex.  Civ.  App.)  70  S.  W. 
111. 

78.  Authority  to  purchase  certain  goods; 
evidence  was  given  of  purchases  .of  similar 
goods  accepted  by  the  principal — Fitch  v. 
Metropolitan  Hotel  Supply  Co.,  74  N.  Y.  Supp. 
616;  agency  for  sale  of  timber — Barker  Ce- 
dar Co.  V.  Roberts,   23  Ky.  Law    R.  1345. 

79.  Agreement  by  sales  agent  to  receive 
payment  In  lumber — J.  A.  Fay  &  Eagan  Co.  v. 
Causey,  131  N.  C.  350. 

80.  Nutter  V.  Brown,  51  W.  Va.  598. 

81.  Purchase  of  note  by  agent  on  unau- 
thorized condition — Andrews  v.  Robertson, 
111  Wis.  334. 

82.  Farquharson  v.  King,  70  Law  J.  K.  B. 
985.  (1901)  2  K.  B.  697,  85  Law  T.  (N.  S.)  264. 
49  Wkly.  Rep.  673. 


si 


AGENXY. 


A  pxLTcliaser  of  lands  cannot  recover  from  the  vendor  for  money  paid  the  latters 
attorney  in  fact  in  excess  of  his  anthority.**  Eevocation  of  a  special  agency  by 
the  principal  before  the  agent  acts  will  prevent  liability  for  subsequent  perform- 
ance unless  tliixd  persons  have  been  misled  by  the  principal  or  he  has  ratified  the 
accent's  acts.*^  A  principal  may  follow  his  fimds,  wrongfully  diverted  by  his 
agent,  into  the  hands  of  third  persons  unle^  they  have  received  them  in  good 
faith,  for  value,  and  without  notice  of  the  agent's  trust.®^  Instructions  that  a 
principal  was  entitled  to  recover  money  paid  to  third  persons  by  his  agent  if  the 
agent  exceeded  his  authority  cannot  be  given  where  the  issue  made  by  the  plead- 
ings is  that  the  money  was  paid  under  a  mistake  of  fact.^" 

The  principal  may  be  liable  for  agenfs  torts;**  or  for  negligence  induced 
by  false  statements  of  the  agent,*®  and  for  trespass  by  his  agent  which  he  ratines 
and  is  done  for  his  benefit,®-  and,  for  wrongful  acts  of  the  agent  within  the  scope 
of  his  authority  though  in  violation  of  his  express  orders,®^  though  he  may  not 
have  directed  or  contemplated  the  acts,®-  but  not  for  wrongful  acts  of  the  agent 
outside  the  scope  of  his  authority®'  or  in  transactions  independent  of  the  agency®* 
or  of  which  he  had  no  knowledge,®^  unless  he  accepts  the  fruits  of  the  fraud  or 
deceit  of  the  agent.®®  Where  it  is  shown  that  a  third  person  defrauded  by  deal- 
ings with  an  agent,  afterwards  dealt  with  the  principal,  such  person  may  prop- 
erly show  that  in  both  dealings  he  relied  solely  on  the  agent's  representations.®' 

C.  Particular  Jcinds  of  agencies.^^ — A  general  agent  may  change  or  waive 
terms  of  a  contract  for  the  principal,®®  or  of  a  warranty  of  goods  sold,^  and  mayj 


55.  Ag-ent  to  secure  -wT^tten  proposals  for 
sale  and  delivery  of  cotton — Inman  v.  Cra'w- 
ford  (Ga.)  42  S.  E.  473. 

^4.  Morton  v.  Morris  (Tex.  Civ.  App.)  66 
S.  VT.  94. 

S3.  Florida  Cent.  &  P.  P..  Co.  v.  Ashmore 
(Fla.)   32  So.  832. 

56.  Central  Stock  and  Grain  Esch.  v.  Ben- 
ding-er  (C.  C.  A.)  109  Fed.  92o;  Bendinger  v. 
Central  Stock  and  Grain  Esch..  Id. 

ST.  Great  Western  EL  Co.  v.  VThite  (C.  C. 
A.  N.  D.)  lis  Fed.  406. 

SS.  An  exception  exists  where  the  state 
Is  principal — Billing-s  v.  State.  27  VTash.  2S8. 
67  Pac.  5S3.  A  corporation  employing-  an 
agent  to  give  an  exhibition  of  fire  works  is 
liable  for  his  negligence  unless  the  latter  is 
an  independent  contractor — Bianki  v.  Great- 
er American  Exposition  Co.  (Neb.)  92  N.  "W. 
615. 

S9.  Telegraph  company  as  principal — Sef- 
fel  V.  Western  Union  TeL  Co.  (Tex.  Civ. 
App.)    65  S.  W.  897. 

90.  Brown  v.  Webster  City.  115  Iowa.  511. 

91.  Arrest  of  patron  by  restaurant  man- 
ager— D'jpre  v.  Childs.  52  App.  Div.  (N.  T.) 
306;  affirmed,  169  N.  T.  5S5. 

92.  A  dry  goods  merchant  is  liable  for 
false  arrest  of  a  customer  by  an  usher  on 
suspicion  of  theft — Field  v.  Kane,  99  IlL 
App.  1. 

93.  Agent  for  setting  up^  machinery — 
Flinn  v.  TVorlds  Dispensary  Medical  Ass'n. 
64  App.  Div.  (X.  T.)  490.  That  a  railroad 
ticket  agent  arrested  a  person  because  of  his 
resemblance  to  another  suspected  of  stealing 
from  the_  company's  cash  dra^wer.  is  insuf- 
ficient to  show  such  act  within  the  scope  of 
the  agent's  authority  so  as  to  render  the 
railroad  company  liable  for  malicious  prose- 
cution— "Wikle  V.  LoulsviUe  &  N.  R.  Co.  (Ga.) 
42  S.  E.  525. 

94.  Fraud   of  a   husband   and   another    in 


confessing    judgments    against    the    husband] 
is  not  chargeable  to  the  -wife  because  thej 
represented  her  in  purchase  of  his  propertj 
in  execution — Mencke  v.  Rosenberg,  202  Pa.1 
131. 

95.  J.  I.  Case  Thresh.  Mach.  Co.  v.  Eich-| 
inger,  15  S.  D.  530.  Evidence  that  a  mother-! 
in-law  had  previously  mortgaged  her  prop- 
erty twice  to  secure  debts  of  her  son-in-lawl 
and  her  testimony  that  she  trusted  him  im-l 
plicitly,  is  insufficient  to  show  his  apparent! 
authority,  while  acting  as  her  agent,  tol 
agree  that  a  later  mortgage  executed  byj 
her  for  another  loan  to  him  should  include] 
a  prior  loan  he  had  secured  by  forging  herl 
name  and  of  ■which  she  had  no  knowledge  or| 
notice — Xourse  v.  Jennings.  180  Mass.  592j 
Nor  is  such  apparent  authority  sho'svn  by 
letter  from  the  mother-in-law  assenting  tol 
the  loan  "as  arranged" — Nourse  v.  Jenning 
180  Mass.  592. 

96.  \STiite  V.  New  York  S.  &  W.  R.  Co.  (N.^ 
J.)  52  AtL  216. 

97.  Purchase    of   worthless   mining   stool 
under  fraudulent  representations  of  agent 
(Seraghty  v.  Randall  (Colo.  App.)  70  Pac.  767.1 

98.  A  person  dealing  ^vith  a  general  loai 
agent  is  not  liable  for  payments  converted  bj 
the  agent — Harrison  Nat.  Bank  v.  Williams 
(Neb.)  89  N.  TV.  245.  An  agent  having  full 
charge  of  loans  and  security,  using  his  o^ 
judgment,  can  receive  pavment — Pochin 
Knoebel  (Neb.)  S9  N.  TV.  2^.4:  sufficiency 
evidence  to  show  agent's  authority  to  enter 
Into  an  illegal  wagering  contract  (Mass.  St.! 
1890.  c  437> — Allen  v.  Fuller  (Mass.)  65  Nj 
E.  31.  That  an  agent  is  not  in  possession 
his  principal's  mortgage  is  not  conclusive 
as  to  lack  of  poorer  to  collect  money  thereoi 
— ^Harrison  Nat.  Bcnk  v.  Austin  (Neb.)  91  N| 
W.   540. 

99.  Selling    agent — Blaess    v.    Nichols 
Shepard  Co.,    115   Iowa,  373.    An   agent  wit 


AGKxNCY. 


53 


estop  the  principal  by  specific  acts  relating  thereto,^  and  may  make  optional  con- 
tracts with  third  persons  allowing  them  time  for  acceptance  or  refusal,  though 
bis  sales  are  subject  to  ratification  by  the  principal.^  Authority  as  a  general  agent 
is  presumed  to  continue.*  A  general  agent  in  charge  of  the  entire  business  of 
his  principal  is  presumably  authorized  to  give  a  note  when  necessary  for  its  pur- 
poses.^ A  general  agent  to  manage  real  estate  is  not  empowered  to  bind  his  prin- 
cipal by  entry  into  a  partnership.®  An  agent  to  manage  the  principal's  business 
generally,  to  buy  and  sell  for  him,  is  a  general  agent  though  for  a  special  busi- 
ness, and  can  bind  the  principal  by  a  purchase  on  credit  though  contrary  to  in- 
structions.''' An  agent  employed  generally  to  conduct  the  business  of  his  prin- 
cipal and  draw  drafts  on  the  principal  for  payment  of  necessary  expenses,  was 
authorized  to  use  money  collected  by  him  from  another  and  distinct  principal 
to  pay  such  debts  and  remit  in  return  to  the  second  principal  drafts  on  the  first." 
A  general  agent  to  purchase  mill  supplies  and  sell  manufactured  goods,  but  with- 
out authority  to  sign  or  indorse  checks  except  for  supplies  purchased,  has  no  im- 
plied authority  to  indorse  a  check  for  goods  sold,  so  as  to  prevent  recovery  of  the 
amount  from  the  maker  by  his  principal  after  the  agent  had  absconded."  The 
authority  of  a  general  agent  to  hire  employes  for  his  principal  is  not  a  matter 
of  law  but  a  question  to  be  settled  from  the  evidence.^"  Statements  made  by  a 
general  agent  to  special  agents  are  admissible  as  showing  the  authority  of  a  cer- 
tain special  agent  as  bearing  on  statements  made  by  him  for  the  principal. ^^ 

An  agent  employed  for  a  specific  purpose  cannot  act  beyond  its  scope  so  as 
to  bind  the  principal/-  and  a  third  person  dealing  with  him  must  learn  the  extent 


authority  to  permit  his  principal's  tenant  to 
market  crops  may  Tvaive  the  principal's  lien 
thereon — Fishbaugh  v.  Spunaugle  (Iowa)  92 
N.  W.   58. 

1.  Blaess  v.  Nichols  &  Shepard  Co.,  115 
Iowa,  373:  Waupaca  Elec.  L.  &  R.  Co.  v.  Mil- 
waukee Elec.  R.  &  L.  Co.,  112  Wis.  469. 

2.  A  general  rental  agent  may  encourage 
a  tenant  to  buy  fixtures  and  thereby  estop 
the  principal  from  claiming  tliem  as  part  of 
the  realty — Morrison  v.  Sohn,  90  Mo.  App.  76. 

3.  General  agent  selling  musical  instru- 
ments may  sell  on  trial  and  part  payment 
with  option  to  purchaser  to  return  witliin  a 
fixed  period,  and  the  principal  cannot  repu- 
diate the  contract  and  recover  the  instru- 
ment without  refunding  the  part  payment — ■ 
Jesse  French  Piano  &  Organ  Co.  v.  Card- 
well,   114   Ga.    340. 

4.  Cheshire  Provident  Inst.  v.  Fuesner 
(Neb.)    88  N.  W.  849. 

5.  Whitten  v.  Bank  of  Fincastle  (Va.)  42 
S.  E.  309. 

6.  Guy  V.  Rosewater  (Colo.  App.)  69  Pac. 
271. 

7.  Manager  of  mercantile  business — Pa- 
cific Biscuit  Co.  V.  Dugger,  40  Or.  362,  67  Pac. 
32. 

8.  Great  Western  El.  Co.  v.  White  (C.  C. 
A.)  118  Fed.  406. 

9.  Jackson  Paper  Mfg.  Co.  v.  Commercial 
Nat.  Bank,  199  III.  151. 

10.  Employment  of  men  by  foreman  of 
mill — Ames  v.  D.  J.  Murray  Mfg.  Co.,  114 
Wis.  85. 

11.  Elf  ring  v.  New  Birdsall  Co.  (S.  D.) 
92  N.  W.  29. 

12.  Power  of  architect  employed  to  super- 
Intend  construction  to  change  building  con- 
tract— Watts  V.  Metcalf,  23  Ky.  Law  R.  2189. 


An  attorney  employed  to  execute  a  lease  can 
not  bind  his  client  to  pay  commissions  for 
the  renting — Calloway  v.  Equitable  Trust 
Co.,  67  N.  J.  Law,  44.  An  agent  to  receive 
principal  and  interest  can  not  receive  prin- 
pical  before  due — Williams  v.  Pelley,  96  111. 
App.  346.  Authority  to  collect  a  debt  car- 
ries no  power  to  compromise — Corbet  v.  Wal- 
ler, 27  Wash.  242,  67  Pac.  567;  nor  to  bind  the 
principal  to  apply  the  proceeds  in  a  particu- 
lar way — Hill  v.  Van  Duzer,  111  Ga.  867.  An 
agent  to  buy  for  cash  can  not  buy  on  credit 
— Americus  Oil  Co.  v.  Gurr,  114  Ga.  624.  Proof 
that  an  agent  received  payments  of  interest 
on  a  note  and  trust  deed,  and  wrote  a  letter 
exercising  an  option  on  the  principal  to 
declare  the  entire  debt  due  on  default,  is  in- 
sufficient to  show  his  authority  to  exercise 
the  option — Wilcox  v.  Eadie  (Kan.)  70  Pac. 
338.  An  architect,  described  in  all  contracts 
relating  to  construction  of  a  building  as  the 
agent  of  the  owner,  may  bind  the  latter  by 
agreement  to  provide  for  emergencies  in  the 
work — Teakle  v.  Moore,  9  Detroit  I^eg.  N. 
371.  Authority  to  ship  goods  includes  author- 
ity to  accept  bill  of  lading  and  limit  carriers' 
liability — Adams  Exp.  Co.  v.  Carnahan  (Ind. 
App.)  64  N.  E.  647.  An  agent  to  collect  mon- 
ey cannot  receive  payment  otherwise — Coon- 
ey  v.  U.  S.  Wringer  Co.,  101  Wl.  App.  468. 
Employment  of  a  physician  to  attend  an  em- 
ploye is  not  within  the  duties  of  a  bookkeep- 
er and  timekeeper  of  a  railroad  contractor — 
Harris  v.  Fitzgerald  (Conn.)  52  Atl.  315.  One 
sometimes  employed  by  a*  loan  company  to 
collect  monies  does  not  become  its  agent  by 
making  application  for  another  for  a  loan, 
so  as  to  render  the  company  chargeable  with 
his  kno'svledge  that  a  mortgage  security  was 
given  b3'  defendant  as  surety — International 
Bldg.   &  Loan  Ass'n  v.  Watson,  158  Ind.  50S. 


54  AGENCY. 

of  the  agent's  authority.^'  However,  an  undisclosed  limitation  of  authority  will 
not  bind  others  without  knowledge.^*  Payment  of  a  note  to  an  agent  authorized 
to  collect  for  the  holder  ^ati?nes  the  debt.^^  His  possession  of  a  note  shows  an 
agent's  authority  to  collect  it.^*  A  servant  authorized  to  transport  his  masters 
property  and  furnished  with  funds  for  the  purpose,  has  no  apparent  or  implied 
authority  to  give  his  master's  credit  for  transportation.^^  "WTiere  it  is  shown  that 
one  in  control  of  another's  business,  did  not  employ  laborers  without  approval 
of  his  superior,  there  can  be  no  implied  authority  that  he  should  so  employ  them^' 
Where  a  contract  sectired  by  an  agent  provides  that  he  has  no  authority  to  change 
its  written  terms,  he  cannot  bind  the  principal  to  accept  other  and  different  terms 
by  allowing  their  insertion,^®  nor  can  he  bind  the  principal  by  a  verbal  modifica- 
tion of  a  written  contract,  though  such  contract  was  originally  made  by  him, 
unless  his  authority  to  modify  is  shown  or  the  change  is  ratified  by  the  prin- 
cipal.^°  Where  an  agent~is  employed  to  sell  certain  goods  of  the  principal  and 
also  to  represent  him  in  an  arbitration  concerning  the  sale  of  other  goods,  the 
principal's  right  to  question  the  agent's  acts  for  fraud  is  the  same  in  both  em- 
plovments.^^  Authority  given  by  a  widow  to  another  to  secure  privilege,  from 
a  lodge  of  which  the  agent  was  a  member,  to  bury  her  husband  in  the  lodge  cem- 
etery, will  not  bind  her  not  to  remove  the  body  because  of  a  prohibition  in  the 
lodge  constitution  of  which  she  had  no  knowledge.^-  Authority  to  indorse  com- 
mercial paper  for  his  principal  does  not  imply  authority  to  ratify  a  sale  of  the 
principal's  stock  or  a  loan  thereon.-'  The  agent  may  bind  his  principal  by  alter- 
ation of  an  instrument  to  correspond  with  terms  of  the  transaction  which  was 
conducted  by  the  agent.'*  A  promise  by  the  owner  of  a  building  to  pay  a  ma- 
terialman on  an  order  from  the  contractor,  is  proof  that  the  contractor  was  not 
an  agent  to  purchase  materials  for  the  owner,  where  the  materialman  had  failed 
to  procure  the  order  until  the  contractor  had  abandoned  his  contract  and  nothing 
was  due  him  thereunder.^^  After  an  agent  has  represented  his  principal  in  cer- 
tain transactions  done  annually,  and  no  notice  of  termination  of  the  agencv  is 
given  third  persons,  his  ostensible  agency  for  the  succeeding  year  is  a  question  for 
the  jury.-^  Payment  of  a  note  secured  by  a  mortgage  to  an  agent  authorized  to 
collect,  is  a  satisfaction.^^  A  clerk  acting  under  directions  of  a  local  manager  of 
a  manufacturing  company  cannot  bind  the  company  by  independent  dealinofs  with 
third  persons.-^ 

An  officer  of  an  association  or  corporation  cannot  bind  it  as  agent  in  transac- 
tions outside  the  scope  of  his  authority,-'  nor  can  it  be  presumed  that  a  corporate 


13-  Americus  Oil  Co.  v.  Gurr,  114  Ga.  624; 
Young  V.  Harbor  Point  Club  House  Ass'n,  99 
111.   App.    29  0. 

14.  Rohrbough  v.  U.  S.  Exp.  Co.,  50  "W.  "Va. 
148. 

15.  Stuart  V.  Stonebreaker  (Neb.)  88  N. 
TV.  653;  Pochin  v.  Knoebel  (Neb.)  89  N.  "W. 
264. 

le.     Smith   V.   Landeckl.    101    111.   App.    248. 
17.     Saugerties    &   N.    Y.    Steamboat   Co.   v. 


supervise  the  -work  under  the  contract — 
Rowland  Lumber  Co.  v.  Ross,  4  Va.  Sup.  Ct. 
R-  191. 

21.  Sale  of  lumber  by  agent  and  settle- 
ment of  dispute  as  to  quality  of  other  lumber 
sold  but  already  delivered — Williamson  v. 
North  Pac.  L.  Co.   (Or.)   70  Pac.  532. 

22.  Matter  of  Bauer,  68  App.  Div.  (N.  Y.) 
212. 

23.  Fay  v.  Slaughter.  194  HI.   157. 


Miller,  76  App.  Div.    (N.  Y.)    167.  24.     Nichols    v.    Rosenfeld.    181    Mass.    525; 


IS.  Authority  of  boss  of  coal  mine  to  em- 
ploy diggers  without  approval  of  the  super- 
intendent— Patterson  v.  Neal  (Ala.)  33  So.  39. 

19.  Purchase  of  shares  in  loan  company 
from  agent  on  written  application  provided 
by  the  company — National  Guarantee  L.  & 
T.  Co.  V.  Thomas  (Tex.  Civ.  App.)  67  S.  "W. 
464. 

ao.     Contract    by    dredging    company    -with 


Palmer  v.  Same.  Id. 

25.  Parker  v.  Brown.  131  N.  C.  264. 

26.  Agent  in  taking  mortgage  on  crops 
raised  annually  on  a  certain  farm — First  Nat. 
Bank  V.  Minneapolis  &  N.  EL  Co.  (N.  D  )  91 
N.  W.  436. 

27.  Boyd  V.   Pape    (Neb.)    90   N.   "W.    645. 

28.  Crane  &  Co.  v.  Bloom,  64  Kan.  SS4  67 
Pac.  449. 


agent  of  lumber  company   for  excavation   of        29.     Charter-party  signed  by  managing  ed- 
a  channel;  the  agent  was  authorized   only  to  I  itor  of  publishing  association — Sun  Print.  A 


AGENCY. 


55 


agent  can  act  for  it  in  matters  outside  its  legitimate  business.^"  Though  third 
persons  are  bound  to  know  the  extent  of  power  of  tlie  president  of  a  corporation 
to  act  as  its  agent,  they  may  deal  with  him  respecting  matters  within  the  ordinary 
business  of  the  corporation  if  he  is  customarily  in  charge  thereof.^^  The  man- 
ager of  a  corporation  has  no  authority  under  his  general  powers  to  mortgage  its 
property.^^  An  agent  of  a  building  and  loan  association  cannot  bind  his  prin- 
cipal beyond  the  terms  of  its  published  circular  and  by-laws.^^ 

A  power  of  attorney^*'  is  an  instrument  setting  forth  the  authority  of  a  pri- 
vate attorney  or  attorney  in  fact.^^  It  must  be  strictly  construed,^*^  general  pow- 
ers being  controlled  by  special  powers  or  express  limitations.^^  A  power  of  attor- 
ney to  control  and  sell  does  not  include  power  to  mortgage.^^  A  power  to  sell 
land  includes  authority  to  execute  conveyances  and  a  deed  in  his  own  name  con- 
veying his  "interest"  passes  the  owner's  title.^®  A  power  to  sell  land  carries  au- 
thority to  execute  a  conveyance  for  a  consideration  running  to  the  owner  only/'^ 
and  third  persons  are  charged  with  notice  of  powers  of  an  agent  under  a  recorded 
power  so  that  they  cannot  purchase  for  a  consideration  running  to  the  agent*^ 
unless  they  are  innocent  subsequent  purchasers.*^  A  trade  usage  followed  by  an 
agent  in  his  principal's  business  cannot  prevail  against  a  power  of  attorney  or  the 
law.*'  A  special  power  of  attorney  to  collect  debts  and  use  them  for  the  sup- 
port of  the  grantor's  family  will  not  authorize  a  conveyance  of  the  property  to 
pay  debts  previously  owed  by  the  grantee.**  A  power  of  attorney  to  convey  by 
quit  claim  deed,  executed  by  a  conveyance  with  general  warranty,  will  quit  claim  the 
principal  but  he  is  not  bound  by  the  warranty.*"*  Where  an  attorney  in  fact,  un- 
der a  recorded  power  of  sale,  sells  to  himself  and  then  conveys  to  another,  the  orig- 
inal owner  must  show  that  such  grantee  had  notice  of  his  equities.*®  A  power 
of  attorney  authorizing  the  purchase  of  goods  for  a  certain  business  of  the  prin- 
cipal in  a  foreign  country,  and  to  provide  for  payment  of  same,  does  not  confer 
a  general  borrowing  power  on  the  agent  to  bind  the  principal.*^  A  sealed  power 
of  attorney,  or  proper  evidence  of  its  existence,  must  be  shown  to  uphold  a  lease 
of  lands  executed  by  one  as  the  agent  of  another;*^  or  to  make  settlement  of  a 


Pub.  Ass'n  V.  Moore,  183  U.  S.   642,   46  Law. 
Ed.  366. 

30.  Persons  dealing  with  a  brewing  com- 
pany cannot  presume  that  an  agent  thereof 
has  authority  to  employ  labor  in  construc- 
tion of  a  saloon  for  one  of  the  company's 
customers — Leary  v.  Albany  Brew.  Co.,  77 
App.  Div.   (N.  Y.)   6. 

31.  St  Clair  v.  Rutledge  (Wis.)  92  N.  W. 
234. 

32.  First  Nat.  Bank  v.  Kirkby  (Fla.)  32 
So.  881. 

33.  Columbia  Bldg.  &  L..  Ass'n  v.  Lyttle 
(Colo.  App.)   66  Pac.   247. 

34.  Definition  and  rules  of  construction  of 
power  of  attorney — White  v.  Furgeson  (Ind. 
App.)   64  N.  E.  49. 

35.  Treat  v.  Tolman  (C.  C.  A.  N.  T.)  113 
Fed.   892. 

36.  A  Joint  power  In  a  note  to  confess 
Judgment  will  not  authorize  a  several  Judg- 
ment— Mayer  v.  Pick,  192  111.  561.  A  power 
to  sell  mortgages  "now"  possessed  does  not 
include  after  acquired  mortgages — Union 
Trust  Co.  V.  Means,  201  Pa.  374.  A  power  to 
collecting  money,  etc.,  under  an  existing  con- 
tract will  not  apply  to  subsequent  contracts 
— Shackleford  v.  M.  C.  Kiser  Co.,  131  Ala. 
224.  A  power  to  sell  and  convey  lands  will 
not  authorize  the  agent  to  defer  payment 
pending  an  attachment  In  an   action   of  tort 


by  the  grantee  against  the  owner,  of  which 
the  latter  has  no  notice — Morton  v.  Morris 
(Tex.  Civ.  App.)  66  S.  W.  94.  A  power  to 
receipt  payment  of  a  mortgage  and  enter  sat- 
isfaction of  record  will  not  authorize  assign- 
ment of  the  mortgage — Googe  v.  Gaskill,  18 
Pa.    Super.   Ct.    39. 

37.  First  Nat.  Bank  v.  Kirkby  (Fla.)  32 
So.  881. 

38.  Personal  property — Reed  v.  Kinsey,  98 
111.  App.  364. 

39.  Hunter  v.  Eastham  (Tex.  Civ.  App  ) 
67  S.  W.  1080. 

40.  Hunter  v.  Eastham   (Tex.)   69  S.  W.  66. 

41.  An  attorney  in  fact  under  a  power  of 
record  can  not  convey  in  satisfaction  of  his 
own  debt  in  violation  of  the  power — Hunter 
V.  Eastham    (Tex.  Civ.  App.)   67  S.^W.  1080. 

42.  Hunter  v.  Eastham   (Tex.)  6*9  S.  W.  66. 
State  V.  Chilton,  49  W.  Va.  453. 
Lewis  V.  Lewis  (Pa.)  52  Atl.  203. 
Robinson  v.  Lowe,  50  W.  Va.  75. 
Hunter    v.    Eastham    (Tex.)    67    S. 


43. 
44. 

4.5. 
46. 

1080. 
4 


W. 
183, 


Jacobs   V.   Morris,    70   Law   J.    Ch. , 

(1901)   1  Ch.  Div.   261,  84  Law  T.    (N.  S.)   112, 
49  Wkly.   Rep.   365. 

48.  The  lessor,  after  execution,  repudiated 
the  lease  and  gave  notice  thereof  to  the  les- 
see— FreschI  v.  Molony,  65  App.  Div.  (N.  Y  ) 
516. 


56 


AGENCY. 


mortgage  debt  by  a  deed  for  part  of  tlie  property.*^  A  lease  by  attorneys  in  fact, 
reciting  that  it  was  made  by  them  "as  attorneys  in  fact  of  widow  and  heirs  of" 
decedent  and  the  owners  of  the  premises  is  a  compliance  with  a  power  author- 
izing a  lease  in  the  name  of  ^"the  estate  of  the  decedent,  and  the  principals  may 
recover  rent  thereon  as  against  a  surety  on  defatilt  of  the  lessee.^" 

D.  Ratification  by  principal.^'^ — An  authorized  act  of  an  agent,  or  his 
tort,®-  may  be  ratified  so  as  to  bind  the  principal."  A  principal  who  undertakes 
a  contract  made  by  his  agent  without  authorit}-^*  or  who  acts  in  accordance  with 
the  contract,^^  thereby  ratifies  it  though  not  formal,^®  and  though  third  persons 
did  not  know  that  the  agent  was  acting  for  another.^^  Acquiescence  in  acts  of 
an  agent  within  the  apparent  scope  of  his  authority,^®  or  failure  to  object  to  acts 
of  an  agent  after  full  knowledge,^®  or  receipt  and  retention  by  principal  of  the 
benefits  of  an  agenfs  unauthorized  acts^  or  fraud,®^  unless  qualified  by  a  state- 
ment of  the  principal  that  he  does  not  intend  to  become  responsible,^-  amount 
to  a  ratification  of  the  agent's  acts,  but  retention  of  the  benefits  by  another  than 
the  principal  will  not  bind  him,®'  nor  receipt  of  benefits  of  a  contract  from  hi? 
duly  accredited  agent,  part  of  which  has  resulted  from  fraud  or  unauthorized 
acts  of  a  third  person  who  assumed  to  be  his  agent,®*  nor  receipt  of  benefits  from 
an  entire  transaction,  part  of  which  vas  fraudulent,  without  knowledge  that  any 
of  the  benefits  were  frui  ts  of  the  fraud.®^ 

The  benefits  must  result  from  the  transaction  tainted  with  the  agenf s  fraud 
or  unauthorized  acts,®®  and  the  principal  must  have  knowledge  of  the  unauthorized 
or  fraudulent  acts.®'  or  the  terms  of  contracts  made  bv  him  :®^  then  if  he  fails  to 


i 


49.  The  agent  testified  further  that  the 
deed  ^vas  to  convey  the  whole  property,  and 
that  the  mortgagor  had  refused  to  give  any 
deed  •whereupon  the  settlement  ■was  not 
made — Corbet  v.  "Waller,  27  Wash.  242,  67 
Pac.  567. 

50.  Rand  v.  Moulton,  72  App.  Div.  (X.  Y.) 
236. 

51.  Sufficiency  of  e^'ldence  of  ratification 
— Hunter  v.  Cobe.  84  Minn.  187. 

52.  A  bank  may  ratify  a  loan  secured  by 
Its  president  for  an  unlawful  purpose — Roe 
V.  Bank  of  Versailles.  167  Mo.  406. 

53.  Brown  v.  "U'ebster  City.  115  Iowa,  511. 

54.  Nashville  C.  &  St.  L.  R.  Co.  v.  Smith. 
132  Ala.  434;  Southern  Ry.  Co.  v.  Marshall. 
23  Ky.  Law  R.  813;  President,  etc..  Great 
"Western  Turnpike  Co.  v.  Shafer,  57  App.  Div. 
(N.  T.)  331;  affirmed.  65  X.  E.  1121;  TV.  F. 
Taylor  Co.  v.  Baines  Grocery  Co.  (Tex.  Civ. 
App.)  72  S.  "W.  260;  Jacobs  v.  German  "Work- 
iDgmen's  Ass'n   (Mass.)    66  N.  E.   605. 

55.  Furnishing  goods  for  two  years  under 
the  agent's  contract  is  sufficient — Vosburg  v. 
Mallory.   70  App.  Div.   (X.  T.)   247. 

56.  Taylor  Gas  Producer  Co.  v.  "Wood,  119 
Fed.  966. 

57.  Hayward  v.  Langmaid.  181  Mass.   426. 
5S.     Corporation    as    bound    by    president's 

acts — Bennett   v.   Millville  Imp.   Co.,   67   N.   J. 
Law.  320. 

59.  Employnaent  of  surgeon  by  corporate 
asrent  to  attend  injured  employe — Lithgow 
Mfg.  Co.  V.   Samuel.   24  Ky.  Law  R.   1590. 

60.  Russell  V.  Peavy.  131  Ala.  563:  Piano 
Mfg.  Co.  V.  Nordstrom  (Neb.)  88  N.  "W.  164; 
Lyle  V.  Addicks.  62  N.  J.  Eq.  123;  Bennett  v. 
Millville  Imp.  Co..  67  N.  J.  Law,  320:  attorney 
acting  as  agent  in  mortgage  transaction — 
Murray  v.  Sweasy,  69  App.  Div.  (N.  T.)  45; 
payment  to  agent  unauthorized  to  receive  it 


— Payne  v.  Hackney,  84  Minn.  195;  receipt 
of  payments  on  unauthorized  sale  and  war- 
ranty by  machine  agent — Blaess  v.  Nichols 
&  Shepard  Co..  115  Iowa.  373.  An  Insurance 
company  ratified  improper  delivery  of  a  pol- 
icy by  its  agent  by  retaining  premium  and 
failing  to  repudiate  his  acts — Northwestern 
Life  Ass'n  v.  Findley  (Tex.  Civ.  App.)  68  S. 
"W.  695;  contract  by  corporate  officers — 
"Washington  Ins.  Co.  v.  Krutz  (C.  C.  A.)  119 
Fed.  279:  Michigan  Cent.  R.  Co.  v.  Chicago. 
K.  &  S.  R.  Co..  9  Detroit  Leg.  N.  627,  93  N.  "W. 
882;  agent  selling  warehouse  receipts  for 
notes  instead  of  cash  as  instructed — Sloan  v. 
Johnson.  20  Pa,  Super.  Ct.  643;  unauthorized 
employm.ent  of  subagents — Bellinger  v.  Col- 
lins   (Iowa)    90  N.  "W.   609. 

61.  Fraudulent  purchase  of  lands — Steph- 
ens V.  Ozbourne,  107  Tenn.  572;  Meyerhoff  v. 
Daniels.  173  Pa,   555. 

62.  Sale  of  lands  by  broker — Clark  v. 
Bird,  66  App.  Div.   (N.  T.)   284. 

63.  That  lumber  •was  used  by  a  contractor 
in  repairing  a  building  is  not  evidence  of 
ratification  by  the  owner  of  the  contractor's 
representations  as  to  the  contractor's  au- 
thority to  purchase  lumber  for  the  owner — 
Parker  v.  Brown.  131  N.  C.  264. 

64.  Tecumseh  Nat.  Bank  v.  Chamberlain 
Bank.  House  (Neb.l  88  N.  "W.  186. 

65.  Forged  indorsements  by  attorney  in 
fact  dealing  with  principal's  commercial  pa- 
per— Pay  V.  Slaughter.  194  111.  157. 

66.  Purchasing  agent  of  store — Schallay 
V.  Moffit-"West  Drug  Co.  (Colo.  App.)  67  Pac. 
182. 

67.  Campbell  v.  Manufacturers'  Nat.  Bank. 
67  X.  J.  Law.  301;  employment  of  a  coal  dig- 
ger by  a  boss  without  kno-wledge  or  neces- 
sary approval  of  the  mine  o'wner  or  superin- 
tendent— Patterson  v.   Neal    (Ala.)    33   So.    39. 


AGENCY. 


57 


disavow  tlie  agent's  acts  -within  a  reasonable  time  and  third  persons  are  induced 
to  rely  upon  the  validity  of  contracts  made  he  has  ratified  them,^^  so  as  to  bind 
any  one  claiming  under  him,  even  though  the  acts  are  clearly  without  the  agent's 
authority/"  and  even  though  third  persons  dealing  with  the  agent  may  have  had 
some  knowledge  of  his  disapproval/^  Mere  failure  to  disavow  the  act  of  a  volim- 
teer  agent  is  not  a  ratification/^ 

There  can  be  no  ratification  of  a  contract  made  by  the  agent  on  his  own  be- 
half with  a  concealed  intention  to  give  the  benefits  to  another/^  nor  will  one  dealing 
with  another,  whom  he  thought  to  be  an  agent  representing  third  persons,  be  held 
to  ratify  a  fraud  of  such  agent  though  he  made  no  inquiries  as  to  his  authority/* 

The  ratification  cannot  be  partial;  the  principal  must  adopt  or  reject  the 
agent's  acts  in  toto/'  Eatification  of  an  agent's  acts  relates  back  to  time  of  their 
execution  unless  rights  of  third  parties  intervene,"®  and  binds  the  principal  as 
though  the  agency  had  been  made  in  the  first  instance,'''^  and  cannot  be  retracted 
where  made  with  full  knowledge  of  the  facts,'' ^  though  it  may  be  prevented  by 
a  tender  back  of  the  consideration  by  the  agent  before  consummation  of  the  con- 
tract or  damage  to  the  other  party/® 

By  bringing  action  against  his  agent  for  exceeding  his  instructions,  the  prin- 
cipal ratifies  his  acts  as  to  the  third  person  but  not  the  agent's  wrongful  act.®" 
An  agent's  collection  of  a  bill  due  the  principal  by  application  on  a  debt  of  the 
principal  is  not  ratified  by  an  attempt  by  the  principal  to  recover  from  the  agent.®^ 
That  a  principal  made  no  objection  when  a  claim  was  presented  by  a  third  per- 
son is  strong  evidence  of  his  ratification  of  the  obligation  made  by  his  agent.®- 
An  admission  that  part  of  the  results  of  an  agent's  unauthorized  acts  were  re- 
ceived to  balance  part  of  the  agent's  embezzlement  amounts  to  a  partial  ratifica- 
tion.®^ Deeds  taken  by  an  agent  in  name  of  another  without  the  principal's  con- 
sent are  not  ratified  by  his  retention  of  the  deeds  and  abstracts  of  title  made.®* 

The  third  person  must  prove  ratification  by  the  principal,®^  by  showing  knowl- 
edge of  the  principal  and  appropriation  by  him  of  the  benefits.®^     The  reason- 


Ratification  by  a  corporation  of  a  mortgage 
executed  by  its  agent  must  be  with  knowl- 
edge of  the  mortgage — First  Nat.  Bank  v. 
Kirkby  (Fla.)  32  So.  881;  loan  by  agent 
without  authority — Dean  v.  Hipp  (Colo.  App.) 

66  Pac.  804;  TopllfC  v.  Shadwell,  64  Kan.  884, 

67  Pac.  545;  Brown  v.  City  of  Webster  City, 
115   Iowa,    511. 

(58.  Direction  to  an  agent  to  forward  a 
deed  for  signing  is  not  ratification  of  his 
sale  of  lands  where  the  principal  did  not 
know  the  terms  of  the  sale — Johnson  v. 
Fecht,  94  Mo.  App.  605. 

69.  Lyle  v.  Addicks,  62  N.  J.  Eq.  123.  The 
failure  of  the  principal  to  repudiate  the  act 
of  the  assumed  agent  after  full  information 
from  the  agent  and  from  the  other  party  to 
the  contract  amounted  to  a  ratification — 
Robbins  v.  Blanding  (Minn.)  91  N.  W.  844; 
Carlisle  &  Finch  Co.  v.  Iron  City  Sand  Co.,  20 
Pa.  Super.  Ct.   378. 

70.  Failure  of  principal  to  disavow  agent's 
sale  of  property  for  eight  years  will  prevent 
avoidance  of  a  sale  by  execution  creditor  of 
principal — Knauer  v.  McKoon,  19  Pa.  Super. 
Ct.  539. 

71.  Purchase  of  goods  by  son  acting  as 
general  manager  of  father's  store — Roundy 
V.  Erspamer,  112  Wis.  181. 

72.  Robbins  v.  Blanding  (Minn.)  91  N.  W. 
844. 

73.  Kelghley  v.  Durant   (Eng.)    70   Law  J. 


K.  B.  662,  (1901)  App.  Cas.  240,  84  Law  T.   (N. 
S.)  777. 

74.  Ballard  v.  Nye   (Cal.)    69  Pac.  481. 

75.  Adams  Exp.  Co.  v.  Carnahan  (Ind. 
App.)  64  N.  E.  647;  Hall  v.  Hopper  (Neb.)  90 
N.  W.  549;  Hlnman  v.  F.  C.  Austin  Mfg.  Co. 
(Neb.)  90  N.  W.  934;  corporation  as  principal 
— Fremont  Carriage  Mfg.  Co.  v.  Thomsen 
(Neb.)  91  N.  W.  376. 

76.  Execution  of  deed  under  power  of  at- 
torney— Graham  v.  Williams,  114  Ga.  716. 

77.  Hunter  v.  Cobe,  84  Minn.  187.  The 
rule  applies  to  a  municipal  corporation  as 
principal — Wilt  v.  Town  of  Redkey  (Ind. 
App.)    64  N.   E.   228. 

78.  Hunter  v.  Cobe,  84  Minn.  187. 

79.  Retention  of  purchase  notes  of  land 
wrongfully  sold  by  agent  is  not  ratification 
where  the  agent  tenders  back  the  money  and 
no  deed  is  executed — Bromley,  v.  Aday,  70 
Ark.  351. 

80.  Schanz  v.  Martin,  37  Misc.   (N.  T.)   492. 

81.  Holland  Coffee  Co.  v.  Johnson,  38 
Misc.    (N.    Y.)    187. 

82.  Fischer  v.  Jordan,  54  App.  Div.  (N.  Y.) 
621;   affirmed,   169  N.  Y.   615. 

83.  Fay  v.  Slaughter,  194  111.  157. 

84.  Cole  v.  Baker  (S.  D.)   91  N.  W.  324. 

85.  Dean  v.  Hipp  (Colo.  App.)   66  Pac.  804. 

86.  Ratification  of  unauthorized  purchases 
must  be  shown  by  knowledge  of  principal 
and    mingling    of   the    purchased    goods    with 


58 


AGENCY. 


able  time  within  which  a  principal  must  ratify  or  reject  his  agent's  acts  after 
notice  is  a  question  for  the  jury  from  the  circumstances." 

E.  Undisclosed  agency. — An  imdisclosed  principal  is  bound  by  acts  of  his 
agent/*  unless  there  are  facts  putting  one  dealing  with  the  agent  on  inquir}^^^ 
or  it  does  not  appear  that  such  persons  are  damaged  by  disavowal  of  the  agent's 
acts^"  and  such  an  agent  may  bind  the  principal  by  sale  of  Ms  property  under 
ostensible  ownership."  An  undisclosed  principal  who  has  allowed  his  agent  to 
conduct  business  in  his  own  name  "as  agent"  cannot  disavow  the  agent's  acts.^- 

That  a  contract  was  made  by  an  undisclosed  agent  will  not  prevent  enforce- 
ment by  the  principal,®^  and  that  a  third  person  contracted  with  an  undisclosed 
agent,  will  not  prevent  his  liability  to  the  principal  for  failure  to  exercise  ordi- 
nary care  in  performance  of  the  contract.^*  One  dealing  with  an  undisclosed 
agent  may  treat  him  as  a  principal  and  a  payment  to  the  agent  will  discharge  the 
third  person.^^  A  surety  who  executes  a  bond  for  an  agent  while  unaware  of 
his  undisclosed  principal  is  not  precluded  from  his  action  against  the  principal 
after  payment  of  the  bond  by  the  fact  that  the  agent  executed  the  bond  as  prin- 
cipal.»« 

Execution  of  a  written  contract  by  one  "as  agent  is  a  sufficient  disclosure  of 
the  agency  as  to  the  other  party .®^  That  a  wife  knew  a  building  was  being  con- 
structed on  her  lots,  and  once  saw  her  husband  order  lumber  for  buildings  on  his 
own  lots,  does  not  show  her  to  be  his  undisclosed  principal.®* 

Ihe  commencing  of  a  suit  against  a  principal  and  his  undisclosed  agent  is 
not  an  election  to  hold  the  principal  and  not  the  agent,®®  and  where  one  dealt 
with  an  undisclosed  agent  he  need  not  elect  which  he  will  hold  liable  until  tlie 
case  is  closed.^ 

F.  Notice  to  agent. ^ — The  agent  is  presumed  to  have  informed  the  principal 
of  contracts  he  has  made,'  Notice  affecting  matters  within  the  agency  are  bind- 
ing on  the  principal,*  unless  third  persons  had  knowledge  of  limitations  on  the 


his  goods  beyond  separation — Thrall  v.  Wil- 
son. 17  Pa.  Super.  Ct.  376. 

87.  Jones  v.  Consolidated  Portrait  &  Frame 
Co.,  100  111.  App.   89. 

88.  Payment  of  mortgage  to  agent — Che- 
shire Provident  Inst.  v.  Gibson  (Neb,)  89  N. 
W,   243. 

89.  Effect  of  agent's  signature  as  manager 
of  a  company — Mull  v,  Ingalls.  30  Misc.  (N, 
T.)  80.  A  statement  on  the  face  of  bills  that 
they  were  payable  only  to  the  principal  suf- 
ficiently discloses  the  agency  to  bind  third 
persons — Henderson,  Hull  &  Co,  v.  McNally, 
48  App,  Div.  (N.  Y.)  134;  affirmed,  168  N.  Y. 
646, 

90.  A  son,  handling  his  mother's  funds, 
cannot  bind  the  latter  by  dealings  beyond 
her  authority  and  for  his  own  benefit — Lar- 
big  V,  Peck,  69  App.  Div.    (N.  Y.)   170. 

91.  Sale  of  bank  stock  always  in  posses- 
sion of  agent — Garvin  v.  Pettee,  15  S.  D.  266. 

92.  Purchase  of  goods  by  agent  and  con- 
fession of  judgment  for  price — Fees  v,  Sha- 
del.  20  Pa.  Super.  Ct.  193. 

93.  Loan  made  by  undisclosed  agent  en- 
forceable against  borrower — Kitchen  v. 
Holmes  (Or.)   70  Pac.  830. 

94.  Abstracter  examining  title  under  em- 
ployment by  the  owner's  agent — Young  v, 
Lohr  (Iowa)  92  N.  W.  684;  negligence  of  car- 
rier as  to  goods  shipped  by  agent — Southern 
R.  Co.  v.  Jones.  132  Ala.  437. 

95.  Shine   v.    Kennealy,    102    111.   App.    473, 

96.  City  Trust,  Safe  Deposit  &  Surety  Co, 


V.  American  Brew.  Co,,  70  App.  Div,   (N.  Y.) 
511. 

97.  If  the  third  person  made  no  inquiry  as 
to  the  principal,  he  cannot  be  heard  to  deny 
disclosure.  Insurance  policy  given  to  agent — 
Marine  Ins.  Co.  v.  Walsh-Upstill  Coal  Co.,  13- 
23  O.  C.   C.  191. 

Snyder  v,  Sloane,  65  App.  Div.    (N.  Y.) 


Tew  v.  Wolfsohn,  77  App.  Div,  (N.  Y.) 
Tew  V.  Wolfsohn,  77  App,  Div.   (N.  Y.) 


98. 
543. 
99. 

454. 
1. 

454. 

2.  Notice  may  extend  to  knowledge  of 
the  disposition  of  a  vicious  animal — O'Neill  v. 
Blase,  94  Mo.  App.  648.  An  agent's  knowl- 
edge of  insanity  of  a  purchaser  of  the  prin- 
cipal's goods,  imputable  to  the  principal,  may 
be  shown  by  notice  to  the  agent  by  the  pur- 
chaser's son  acting  for  him — Kelly  v.  Burke, 
132   Ala.    235. 

3.  Leszynsky  v.  Ross.  35  Misc.  (N.  Y.)   652. 

4.  Notice  to  corporate  president  in  charge 
of  business  of  defects  in  machinery — Hous- 
ton Biscuit  Co.  V.  Dial  (Ala.)  33  So.  268; 
Schollay  V.  Mofflt-West  Drug  Co.  (Colo.  App.) 
67  Pac.  182;  notice  that  the  person  with  whom 
dealings  are  had  is  an  agent — Mull  v.  Ingalls. 
30  Misc.  (N.  Y.)  80;  maker  of  note  as  agent  of 
holder  for  sale  of  collateral  security — Peo- 
ple's Sav.  Bank  v.  Smith.  114  Ga.  185.  A 
different  understanding  of  trade  terms  as 
between  principal  and  agent  in  different 
parts    of   the   country    will    not   prevent    the 


AGENCY. 


59 


agent's  authority;"  but  it  must  be  obtained  in  the  course  of  the  business  of  the 
agency,®  and  does  not  apply  to  matters  beyond  the  agency  or  as  to  which  the  agent 
acts  for  himself/  or  must  be  known  to  the  agent  at  time  of  his  dealings  though 
he  may  have  acquired  it  previously/  and  must  concern  matters  with  which  the 
agent  has  power  to  deal,  or  about  which  he  is  imder  duty  to  inform  the  prin- 
cipal/ and  not  arise  from  the  peculiar  knowledge  of  the  agent.  ^** 

The  rule  that  an  agent  is  presumed  to  communicate  such  facts  to  his  prin- 
cipal as  his  duty  requires,  does  not  apply  where  the  agent  acts  also  for  himself 
and  his  interest  or  conduct  would  preclude  such  disclosure,^^  or  when  the  knowl- 
edge is  gained  while  in  conspiracy  with  a  third  person  to  defraud  the  principal.^^ 
Notice  actually  communicated  to  a  principal  will  bind  him,  though  not  within 
the  scope  of  the  agent's  authority.^^ 

Knowledge  of  fraud  and  collusion  in  transfer  of  lands  by  an  attorney  in  fact 
is  notice  to  his  grantee  who  is  also  his  principal/*  Third  persons  are  justified  in 
giving  an  agent  notice  of  rescission  of  a  contract  with  his  principal  where  the 
latter  gives  them  good  reason  to  believe  that  the  agent  has  full  charge  of  the  transac- 
tion.*"^ Notice  to  a  general  agent  is  notice  to  his  principal,**  but  a  servant  is  not 
an  agent  of  his  master  to  receive  notice.*'^ 

The  rule  of  notice  applies  to  a  corporation,*^  and  to  the  state.*^ 

Acceptance  of  the  results  of  an  agency  by  the  principal  shows  notice  of  the 
nature  of  the  contract  made  by  the  agent.^** 


agent's  acts  from  binding  the  principal  where 
he  follows  the  meaning  of  the  terms  accepted 
at  the  place  of  dealing — Moulton  v.  O'Bryan, 
17  Pa.  Super.  Ct.  593;  agent's  knowledge  of 
insufficient  payment  of  principal's  taxes — 
Nutting  V.  Lynn.  18  Pa.  Super.  Ct.  59;  notice 
to  an  agent,  with  "full  authority"  to  pur- 
chase stock,  of  a  lien  on  the  stock  as  shown 
by  knowledge  of  pleadings  In  a  suit  in 
which  the  lien  was  asserted,  imputed  to  prin- 
cipal— Schwind  V.  Boyce,  94  Md.  510;  Ver- 
cruysse  v.  ■Williams  (C.  C.  A.)  112  Fed.  206; 
knowledge  by  agent  of  a  creditor  that  a 
debtor  is  insolvent  at  time  of  execution  of  a 
mortgage  in  behalf  of  the  principal — Babbitt 
V.  Kelly  (Mo.  App.)  70  S.  W.  384. 

5.  Purchase  of  prohibited  goods  by  agent 
in  charge  of  store — Schollay  v.  Mofflt-West 
Drug  Co.  (Colo.  App.)   67  Pac.  182. 

6.  Flanagan  v.  Shaw,  74  App.  Dlv.  (N.  T.) 
508. 

7.  People's  Bank  of  Talbotton  v.  Exchange 
Bank  of  Macon  (Ga.)  43  S.  E.  269;  Lane  v. 
De  Bode  (Tex.  Civ.  App.)  69  S.  W.  437;  Coop- 
er V.  Ford  (Tex.  Civ.  App.)  69  S.  W.  487;  no- 
tice of  cancellation  of  contract — Indiana  Bi- 
cycle Co,  v.  Tuttle  (Conn.)  51  Atl.  538.  No- 
tice to  agent  for  sale  of  lands,  under  deed  of 
trust  for  purchase  price,  of  an  intention  of 
purchaser  to  cut  timber  therefrom  is  not  no- 
tice to  the  beneficiary  under  the  trust  deed — 
Girard  Life  Ins.  A.  &  T.  Co.  v.  Mangold,  94 
Mo.  App.  125.  A  wife  is  not  charged  with 
knowledge  of  fraud  in  execution  sale  of  hus- 
band's property  because  she  was  repi-esented 
therein  by  her  husband  and  another  where 
the  fraud  was  not  connected  with  the  matter 
In  which  they  represented  her — Mencke  v. 
Rosenberg,  202  Pa.  131;  attorney  employed 
to  examine  title  to  lands — Weil  v.  Reiss.  167 
Mo.    125. 

8.  Schwind  v,  Boyce,  94  Md.  510;  Deer- 
ing  V.  Holcomb,  26  Wash.  688,  67  Pac.  240 
661. 


9.  Corporate  agents  or  officers — Nehawka 
Bank  v.   Ingersoll    (Neb.)    89  N.   W.   618. 

10.  A  widow  cannot  be  charged  with 
knowledge  of  regulations  in  a  lodge  consti- 
tution prohibiting  removal  of  dead  from  its 
cemetery  because  her  son-in-law  who  ar- 
ranged for  the  burial  of  her  husband  was  a 
member  of  the  lodge — In  re  Bauer,  68  App. 
Dlv.    (N.   T.)    212. 

11.  Bank  v.  Thompson  (C.  C.  A.)  118  Fed. 
798.  A  depositor  in  a  bank  is  not  charged 
with  knowledge  of  his  bookkeeper's  fraud  in 
abstracting  and  destroying  checks,  though 
received  In  the  general  course  of  his  em- 
ployment, and  the  depositor  was  not  pre- 
cluded from  recovering  from  the  bank  sums 
paids  on  forgeries  because  of  failure  to  as- 
certain and  notify  the  bank  after  prior  for- 
geries— Kenneth  Inv.  Co.  v.  Nat.  Bank  (Mo. 
App.)    70   S.   W.    173. 

12.  Cooper  v.  Ford  (Tex.  Civ.  App.)  69 
S.    W.    487. 

IS.     Hicks  v.  Southern  R.  Co.,  63  S.  C.   559. 

14.  Fraudulent  transfer  of  ward's  land  by 
guardian  in  collusion  with  others — La  Dow 
v.  North  American  T.  Co.  (Or.)  113  Fed.  13. 

15.  Sale  of  machine  by  agent  and  rescis- 
sion by  buyer  for  defects — Weeks  v.  Robert 
A.  Johnston  Co.    (Wis.)   92  N.  W.  794. 

16.  Notice  to  general  manager — Citizens' 
T.  &  S.  Co.  V.  Zane   (Pa.)    113  Fed.  596. 

17.  Rogers  v.  Dutton   (Mass.)   65  N.  E.  56. 

18.  Chicago  Pneumatic  Tool  Cb.  v.  H.  W. 
Johns  Mfg.  Co.,  101  111.  App.  349;  Waters  v. 
West  Chicago  St.  R.  Co..  101  111.  App.  265; 
Magowan  v.   Groneweg   (S.   D.)   91  N.  W.   335. 

19.  Notice  to  state  land  commissioners  of 
a  prior  lien  on  lands  bought  by  them  (People 
V.  Woodruff,  75  App.  Dlv.  [N.  T.]  90;  but  the 
state  is  not  liable  for  tortw  (Billings  v.  State 
[Wash.]  67  Pac.  583);  and  State  v.  Chilton. 
49  W.  Va.  453  holds  that  an  officer's  knowl- 
edge is  not  imputable. 

20.  Acceptance  and  foreclosure  of  a  mort- 


60 


AGENCY. 


G.  Remedies  of  third  persons  against  principal. — The  agent  and  his  undis- 
closed principal  may  be  joined  in  a  suit  on  the  agent's  contract/^  or  third  persons 
may  sue  the  principal  alone,--  unless  they  first  attempted  to  sue  the  agent  the 
relation  having  been  disclosed.-' 

Pleading  and  procedure}^ — Katification  need  not  be  pleaded  to  be  proved.^^ 
"Wlien  a  third  person  deals  knowingly  with  an  agent  beyond  the  scope  of  his  au- 
thority, the  burden  is  upon  such  third  person  to  show  what  benefits  the  principal 
received  because  of  the  agent's  unauthorized  acts  and  his  ccnversion  thereof  to 
his  own  use.^®  Proof  of  agency  is  necessary  to  admit  proof  of  the  agent's  con- 
tract,-' or  his  declarations,^*  as  binding  on  the  principal.  A  wife  sued  for  ma- 
terials sold  may  examine  her  husband  as  to  his  agency  to  purchase  the  materials 
for  her.-® 

The  power  of  one  to  bind  another  as  his  agent,'"  and  whether  particular  acts 
of  the  agent  are  within  the  scope  of  his  authority,'^  are  questions  for  the  jury. 

H.  Remedies  of  principal  against  third  persons. — A  principal  cannot  recover 
from  third  persons  for  fraud  on  the  agent  and  deny  liability  to  the  agent  for  loss 
therein.'^  Either  an  undisclosed  principal  or  his  agent  may  sue  on  a  parol  con- 
tract made  by  the  agent  in  his  own  name.''  The  principal  may  sue  in  his  own 
name  on  a  note  without  indorsement  by  the  agent  though  the  note  was  payable 
to  the  agent  as  trusfee.'* 

§  3.  Rights  and  liabilities  of  agent  to  third  persons.^^ — The  agent  cannot 
limit  his  liability  to  third  persons  by  a  recital  in  the  contract  that  he  is  a  general 
agent,'®  and  where  he  makes  contracts  in  his  own  name  concerning  the  subject 
of  his  agency,  he  obligates  himself  though  the  other  party  has  notice  of  the  agency.'" 
An  agent  is  not  liable  for  injuries  resulting  to  third  persons  by  his  principal's 
breach  of  duty  outside  the  agency,'*  but  it  is  otherwise  if  the  acts  or  omissions 
come  within  his  agency.'®  A  third  person  cannot  recover  damages  from  an  agent 
because  of  misrepresentations  in  regard  to  a  contract  made  for  his  principal,  un- 


gag'e  by  the  principal  shows  notice  that  it 
was  given  on  a  "^vife's  property  to  secure 
her  husband's  debt — Russell  v.  Peavy,  131 
Ala.    563. 

21.  Tew  V.  Wolfsohn,   38  Misc.   (N.  Y.)   54. 

22.  Ware   v.   Long-.    24   Ky.   Law  R.    696. 

23.  Purchase  of  property  by  alleged  agent 
at  foreclosure  sale — Ranger  v.  Thalmann.  65 
App.  Div.  (N.  T.)  5.  But  election  is  only  re- 
quired at  close  of  case — Tew  v.  "Wolfsohn,  77 
App.    Div.    (N.    Y.)    454. 

24.  Allegations  of  authority  held  sufficient 
— Samson  v.  Beale,  27  TVash.  557.  68  Pac.  180; 
H.  B.  Smith  Co.  v.  Williams  (Ind.  App.)  63 
M.  E.  318.  TVliere,  in  a  suit  to  recover  ren- 
dered at  request  of  defendant's  agent,  plain- 
tiff is  unable  to  distinguish  which  of  two 
agents  gave  the  authority,  he  may  prove 
statements  of  either  if  he  sho^ws  agency  of 
both — Harris  v.  Fitzgerald  (Conn.)  52  Atl. 
315;  sufficiency  of  evidence  of  authority  of 
agent — Johnson  v.  Fecht,  94  Mo.  App.  605. 

25.  Kirkpatrick  v.  Tarlton  (Tex.  Civ. 
App.)    69    S.   W.   179. 

26.  Sales  agent — Thrall  v.  Wilson,  17  Pa. 
Super.   Ct.    376. 

27.  Brigger  v.  Mutual  Reserve  Fund  Life 
Ass'n,   75  App.  Div.    (N.   Y.)    149. 

28.  American  Copper,  Brass  &  Iron  Wks. 
v.  Galland-Burke  Brew.  &  Malt.  Co.  ("Wash.) 
70  Pac.    236. 

29.  Snyder  v.  Sloane,  65  App.  Div.  (X.  Y.) 
543. 


30.  American  Copper.  Brass  &  Iron  "Wks. 
V.  Galland-Burke  Brew.  &  Malt.  Co.  (Wash.) 
70  Pac.  236;  Dickinson  v.  Salmon,  36  Misc. 
(N.    Y.)    169. 

31.  Tyson  v.  Joseph  H.  Bauland  Co.,  68 
App.  Div.  (N.  Y.)  310;  Lovick  v.  Atlantic 
Coast  Line  R.  Co..  129  N.  C.  427.  On  the 
question  of  the  principal's  liability  that  the 
agent  signed  as  manager  of  a  company  may 
be  considered  by  the  jury — Mull  v.  Ingalls. 
30  Misc.   (N.  Y.)    80. 

32.  U.  S.  Mortg.  &  T.  Co.  v.  Crutcher.  169 
Mo.  444. 

33.  Coulter  v.  Blatchley,  51  W.  Va.  163. 

34.  Fla.  Rev.  St.,  §  981 — Little  v.  Bradley 
(Fla.)   31  So.   3 -'"2. 

35.  Liability  of  agent  for  malicious  prose- 
cution on  behalf  of  principal — Porter  v. 
Mack,    50  W.   Va.    581. 

36.  Macdonald  v.  Bond.  96  111.  App.  116; 
see  supreme  opinion  affirming  judgment,  195 
111.    122. 

37.  Dockarty  v.  Tillotson  (Neb.)  89  N.  "W. 
1050;  Macdonald  v.  Bond,  96  111.  App.  116; 
see  supreme  opinion  affirming  judgment,  195 
111.    122. 

38.  Agent  to  lease  property  is  not  lia- 
ble for  negligence  to  make  repairs — Drake 
V.  Hagan,  108  Tenn.  265. 

39.  A  rental  agent  in  absolute  control  of 
a  building  is  liable  for  injuries  resulting 
from  negligence  in  failing  to  repair — Lough 
V.  John  Davis  &  Co.   (Wash.)    70  Pac.  491. 


AGENCY. 


61 


less  the  misrepresentation  relates  to  his  authority  to  bind  the  principal  and  was 
relied  iipon.*°  A  child  cannot  be  made  personally  liable  for  purchases  as  agent 
for  its  parent  though  the  latter  has  fraudulently  disposed  of  her  property.*^  A 
joint  tort-feasor  sued  cannot  escape  liability  because  he  acted  as  agent.*^ 

Whej-e  agency  is  undisclosed  an  agent  is  responsible  for  his  acts  to  third  per- 
sons/^ and  if  he  exceeds  his  authority  his  personal  liability  is  unquestioned.** 

Remedies  and  procedure. — A  third  person  who  pursues  his  claim  against  an 
undisclosed  principal  does  not  thereby  elect  to  hold  the  principal  liable  so  that 
he  cannot  have  a  remedy  against  the  agent  who  contracted  in  his  own  name  for 
any  balance  due  after  enforcement  against  the  principal.*"  The  agent  may  sue 
in  his  own  name  in  property  held  by  him  as  agent,*'  and  where  he  sues  on  a 
parol  contract  in  his  own  name  the  undisclosed  principal  need  not  be  joined.*^ 
Defenses  good  against  the  principal  are  effective  against  an  undisclosed  agent 
suing  in  his  own  name.** 

§  4.  Mutual  rights,  duties  and  liabilities.  A.  In  general;  contract  of  em- 
ployment; diligence  and  good  faith;  respondeat  ouster. — An  agent  cannot  delegate 
his  authority  without  special  directions,*^  especially  if  he  has  been  employed  be- 
cause of  his  particular  fitness  for  the  business  of  the  principal,^"  but  he  may  em- 
ploy mere  clerks  f^  and,  if  he  is  without  experience  and  left  to  his  own  devices,  the 
principal  cannot  complain  of  a  sale  of  property  by  a  subagent  and  recover  it  from 
a  third  person.^^ 

The  agent  is  not  responsible  for  losses  to  his  principal  if  he  keeps  within  his 
instructions,^"  and  takes  all  precautions  usually  employed  by  the  principal  for  pro- 
tection of  his  property.^*  But  when  he  violates  his  instructions  the  principal  may 
ignore  his  acts  and  hold  him  liable,"®  though  he  acts  without  compensation;"*  and, 
if  by  exceeding  his  powers  the  agent  renders  himself  liable,  he  cannot  recover 
over  against  the  principal,"^  but  ratification  of  his  unauthorized  acts  and  acceptance 
of  the  benefits  flowing  from  the  agency  will  prevent  recovery  from  him  by  the 
principal  unless  the  agent  has  been  guilty  of  fraud."' 


40.  Halbot  V.  Lens,  70  Law  J.  Ch.  Div. 
125.  (1901)  1  Ch.  Div.  344,  83  Law  T.  (N.  S.) 
702,   49  Wkly.  Rep.    214. 

41.  Emery-Bird-Thayer  Dry  Goods  Co.  v. 
Coomer,  87  Mo.  App.  404. 

42.  Diamond  v.  Smith  (Tex.  Civ.  App.) 
66  S.  W.  141;  extortion  of  money  by  agent 
which  was  paid  to  principal — Bocchino  v. 
Cook,   67  N.  J.  Law,  467. 

43.  Fritz  v.  Kennedy  (Iowa)  93  N.  W.  603; 
Jackson  v.  McNatt,  Id.  425;  liability  for  over- 
payments on  a  loan  made  by  ag-ent  to  third 
person — Tliompson  v.  People's  Bldg-.,  L.  & 
Inv.  Co.,  114  Iowa,  481.  Signing  as  "gen- 
eral agent"  without  disclosing  principal  will 
not  relieve  agent — Macdonald  v.  Bond,  195 
111.   122. 

44.  Submission  to  arbitration  without  dis- 
closing agency;  effect  of  undisclosed  agent's 
exceeding  authority — Macdonald  v.  Bond,  96 
111.  App.  116. 

45.  The  election  to  sue  the  undisclosed 
principal  first  was  merely  an  endeavor  to 
be  subrogated  to  the  rights  of  the  agent 
against  the  principal — Hoffman  v.  Anderson 
(Ky.  App.)  67  S.  W.  49;  Tew  v.  Wolfsohn, 
77    App.    Div.    (N.    T.)    454. 

46.  An  agent  may  sue  on  an  insurance 
policy  covering  property  referred  to  as  be- 
lone-ing  to  him  as  agent — Marine  Ins.  Co.  v. 
Walsh-Upstill  Coal  Co.,  13-23  O.  C.  C.  191; 
Ohio  Rev.  St.,  §  4995. 


47.  Coulter  V.  Blatchley,  51  W.  Va.  163; 
Ash  v.  Beck    (Tex.  Civ.  App.)    68  S.  W.   53. 

48.  Holden  v.  Rutland  R.  Co.,  73  Vt.  317. 

49.  Lucas  V.  Rader  (Ind.  App.)  64  N.  E. 
488;  Floyd  v.  Mackey,  23  Ky.  Law  R.  2030. 
See,  also,  supra,  §  2-A. 

50.  Bromley   v.    Aday,    70   Ark.    351. 

51.  Rohrbough  v.  U.  S.  Exp.  Co.,  50  W.  Va. 
148. 

53.  A  daughter  as  agent  for  father  In 
care  of  property  for  benefit  of  his  children 
may  secure  the  assistance  of  another  in  its 
disposal — Delawder  v.  Jones,  99  111.  App.  301. 

53.  Losses  on  loans  by  agent  because  of 
failure  to  require  sureties — Watson  v.  Roth, 
191    111.    382. 

54.  Burglary  of  money  collected  by  agent 
and  placed  in  principal's  office  safe  for  the 
night — Louisville  &  N.  R.  Co.  v.  BufRngton, 
131  Ala.   620. 

55.  Agent  collecting  money  of  his  prin- 
cipal without  authority  is  liable  for  conver- 
sion— Schanz  v.  Martin,  37  Misc.  (N.  Y.)  492; 
failure  of  loan  agent  to  take  security  as  di- 
rected— Marshall  v.  Ferguson,  94  Mo.  App 
175. 

56.  Marshall  v.  Ferguson,  94  Mo.  App.  175. 

57.  Excess  of  authority  in  warranting 
machines  sold — J.  I.  Case  Thresh.  Co.  v. 
Gardner   (Ky.  App.)    67   S.   W.   367. 

58.     Lunn  v.   Guthrie,   115   Iowa,   501. 


62  AGENCY. 

He  is  allowed  a  reasonable  time  in  -n-liicli  to  perform  his  duties  iinless  Ms 
contract  provides  a  time  limit/^  and  is  not  liable  for  negligence  unless  in  some 
duty  he  owes  to  the  principal/"  as,  a  failure  to  inform  his  principal  fully  as  to 
contracts  made  so  that  the  latter  may  protect  his  rights,®^  and  not  then,  unless 
the  damages  to  the  principal  are  the  natural  and  reasonable  result  of  the  negli- 
gence.®^ 

He  can  acquire  no  advantage  in  the  business  of  his  agency  to  the  detriment 
of  his  principal. ^^  Knowledge  by  an  agent  of  fraud  of  a  third  person  while  deal- 
ing with  him  to  the  principal's  injury  shows  a  conspiracy  between  the  agent  and 
such  third  person.'*  An  agent  employed  to  collect  a  debt  by  attachment,  who  in- 
duced his  principal  to  remain  away  from  the  sale  and  purchased  the  propert}'  at 
a  small  price,  is  guilty  of  fraud. ''  An  indorser  of  a  note  secured  by  mortgage, 
who  acted  as  agent  in  exchange  of  lands  for  one  who  assumed  the  mortgage  therein, 
was  guilty  of  fraud  in  not  informing  his  priacipal  of  the  indorsement,  and  his 
liability  was  not  discharged  by  payment  of  the  note  with  funds  of  the  principal 
in  his  hands. ®® 

A  contract  placing  lands  '"in"  another's  'Tiands  to  be  sold,"  is  one  of  agency 
and  does  not  entitle  the  agent  to  possession."  A  general  agent  to  collect  several 
interests  in  an  estate  may  indorse  checks  and  collect  them  for  the  principal.®- 
One  employed  merely  to  receive  and  care  for  goods  of  another  and  report  on  sales 
made  from  a  branch  of&ce  is  not  such  an  agent  as  is  bound  impliedly  to  pay  the 
expenses  of  the  business  done  him.^^  A  principal  is  not  liable  for  expenses  in- 
curred by  the  agent  in  his  business  where  the  contract  of  agency  requires  the 
agent  to  pay  such  expenses.""  "Where  a  seller  of  goods  reserves  the  right  to  have 
goods  returned  and  to  revoke  a  contract  of  agency,  his  agent  caimot  recover  dam- 
ages for  his  refusal  to  make  delivery."^  An  agent  agreeing  to  render  his  best 
services  in  selling  goods  for  the  principal  commits  no  breach  of  his  contract  by 
selling,  at  the  same  time,  another  brand  of  goods  of  the  same  general  character, 
manufactured  by  himself.'^  One  who  invested  money  in  good  faith  for  himself 
and  his  father  in  a  business  subsequently  found  to  be  fraudulent  does  not  bind 
himself  on  claims  because  of  his  fathers  interest  by  paying  the  accounts  of  the 
business  to  prevent  threatened  criminal  prosecutions  unless  such  pa}Tnent8  were 
made  because  of  profits  received  by  his  father."^  A  mortgage  given  by  an  agent 
to  secure  his  principal  for  losses  resulting  from  acts  in  excess  of  the  agent's  au- 
thority is  prior  to  an  execution  against  the  agent  obtained  in  an  action  commenced 
just  prior  to  execution  of  the  mortgage  and  of  which  the  agent  had  no  notice.^* 

A  subagent  who  has  no  privity  with  the  principals  cannot  repudiate  the  acts 


59.  Sale  by  factor — Prokop  v.  Gourlay 
(Neb.)   91  N.  W.  290. 

60.  Crane  Co.  v.  Columbus  State  Bank 
(Xeb.)  91  N.  "W.  532:  dilig-ence  of  loan  agent 
— Haines  v.  Christie.  28  Colo.  502. 

61.  Western  Union  Cold  Storage  Co.  v. 
Winona   Produce   Co.,    197   111.    457. 

62.  Liability  for  failure  to  deliver  to  prin- 
cipal order  for  sale  of  goods  on  time,  can- 
celed by  the  purchaser  before  delivery  to 
the  principal — Hurley  v.  Packard  (Mass.)  65 
N.   E.   64. 


66.     Beatty  v.   Bulger    (Tex.   Civ.  App.)    66 
S.   W.    S93. 


67.  Raeder  v.  Butler,  19  Pa.  Super.  Ct.  604. 

68.  Attorney  employed  by  several  heirs 
and  legatees  to  collect  their  interests  in  an 
estate — Macdonald  v.   Cool,   134   Cal.   502. 

69.  Especially  where  it  appears  the  par- 
ties had  so  construed  the  contract  by  remit- 
tances of  bills  and  payment  of  them  by  the 
company — Sherman  v.  Consolidated  Dental 
Mfg.  Co.,  202  Pa.  446. 

70.  Liability   for   office   rent   and   expenses 

63.  Bonton    v.    Cameron.    99    111.    App.    600.    ^xni^^  cT"9?  Mrilp^'ss" '''*'°"°"^^"  "^'^ 

64.  Fraudulent      execution     of     deed     by        71.     parry  Mfg.    Co.   v.   Lvon,    23   Ky.   Law 
homestead    owner    to    procure    notes    which  I  R.    844. 

were    sold    to    agent— Cooper    v.    Ford    (Tex.  I      72.  Hirschhorn  v.  Bradley  (Iowa)  90  X  W. 
Civ.   App.)    69   S.    W.    487.                                                  592. 

65.  Qulnn   v.    Le   Due    (N.   J.   Ch-)    51    AtL         73.  Ward  v.  Work.  65  App.  Div.  (X.  T.)  84. 
^•**                                                                                         '       74.  Spalding  v.  Heideman,  96  111.  App.  405. 


AGENCY. 


63 


of  the  agent  within  the  scope  of  his  general  authority/"  and  if  appointed  under 
proper  authority,  is  not  liable  as  tort-feasor  for  conversion  by  the  agents® 

B.  Accounting,  settlement  and  reimbursement. — The  right  of  principal  and 
agent  to  an  accounting  is  reciprocal,''^  and  limitations  will  not  run  against  an 
accounting  by  an  agent  until  demand  by  the  principal  and  refusal  by  the  agent.''* 
A  principal  who  has  placed  money  in  the  hands  of  his  agent,  under  a  power  of 
attorney,  to  expend  it  for  him,  is  entitled  to  an  accounting/®  An  agent  cannot 
deny  his  liability  to  an  accounting  on  the  ground  that  the  principal  had  no  au- 
thority to  engage  in  the  transaction  which  yielded  the  money  in  the  agent's  hands.®" 
A  lien  on  the  trust  fund  is  not  necessary  to  a  suit  for  accounting  in  favor  of 
an  agent  acting  in  a  fiduciary  capacity.*^ 

In  absence  of  an  express  agreement  proceeds  of  transactions  in  the  agent's 
hands  belong  to  the  principal  subject  only  to  the  agent's  lien  for  commissions  and 
advances.*^  The  agent  must  pay  interest  on  money  received  by  him  to  loan,  of 
receipt  of  which  he  gave  no  notice  to  his  principal,**  but  if  he  uses  his  private 
means  to  protect  his  principal's  property  he  may  be  subrogated  to  the  latter's 
rights.**  If  he  guarantees  notes  taken  by  him  in  exchange  for  goods,  he  is  not 
relieved  from  payment  of  a  worthless  note  because  it  was  declared  good  by  an 
officer  of  the  principal  on  settlement,*^  and  the  agent  will  be  liable  for  notes  found 
worthless  after  his  settlement  with  the  principal.**  The  agent  cannot  charge  more 
for  expenses  of  the  business  than  he  actually  paid  out.*''  A  principal  cannot  avoid 
liability  to  his  agent  for  advances  in  good  faith  on  his  request,  because  of  his 
secret  intention  not  to  perform  the  contract  on  which  the  advances  were  made 
in  accordance  with  its  terms.**  Negligence  of  the  agent  causing  unnecessary  ad- 
vancements and  expenditures  will  prevent  his  reimbursement  therefor.*^  Where 
a  tenant  remains  in  possession  after  the  term  to  care  for  the  premises  and  collect 
rents  to  be  applied  on  a  debt  due  him  from  the  landlord,  he  should  be  reimbursed 
for  reasonable  expenses.®**  An  undisclosed  agent  dealing  in  good  faith  in  a  fraud- 
ulent business  with  the  principal's  funds  cannot  recover  from  the  principal's  es- 
tate for  accounts  settled  to  prevent  criminal  prosecutions  against  himself  person- 
ally on  the  ground  that  he  was  liable  to  return  to  the  third  persons  funds  received 
as  profits  in  the  business  when  he  discovered  the  fraud.®^  An  agent  entrusted 
with  money  for  an  unlawful  purpose  must  account  for  any  surplus  remaining 
after  the  illegal  object  is  accomplished.®^ 


75.  After  an  attorney  acting  as  agent  to 
collect  several  shares  of  an  estate  has  prop- 
erly indorsed  checks  for  their  payment,  a 
bank  acting  as  subagent  cannot  repudiate 
payment  so  as  to  bind  the  collecting  bank  to 
the  principals — Macdonald  v.  Cool,  134  Cal. 
502. 

76.  Ledwith  v.  Merritt,  74  App.  Div.  (N. 
Y.)    64. 

77.  An  agent  acting  in  a  fiduciary  capacity 
can  have  an  accounting  in  regard  to  the 
trust  fund — Underbill  v.  Jordan,  72  App.  Div 
(N.  T.)  71. 

78.  Cole  V.  Baker  (S.  D.)  91  N.  "W.  324. 

79.  Power  of  attorney  executed  by  alleged 
insane  woman  giving  custody  of  her  money 
to  superintendent  of  the  poor — Duff  v.  Blair, 
74  App.  Div.   (N.  Y.)    364. 

80.  Agency  for  sale  of  municipal  bonds, 
Illegal  under  Burns'  Rev.  St.  1901,  §  4202a, 
because  sold  below  par — Wilt  v.  Town  of 
Redkey   (Ind.  App.)   64  N.  E.   228. 

81.  Underbill  v.  Jordan,  72  App.  Div  fN 
Y.)   71.  ^ 


82.  Brltton  v.  Ferrin,  171  N.  Y.  235.  An 
agent  must  account  for  all  profits  made  In 
his  principal's  business — Ersklne  v.  Sachs 
(Bng.)  70  Law  J.  K.  B.  978,  (1901)  2  K.  B. 
Div.   504,  85  Law  T.   (N.  S.)   385. 

83.  Thorpe   V.   Thorpe's  Estate      (Vt.)      62 

Atl.     lUol* 

84.  Chandler  v.  Green,  101  111.  App.  409. 

85.  Wilson  V.  McCormlck  Harvesting  Mach. 
Co..   96  111.  App.   545. 

86.  Wilson  V.  McCormlck  Harvesting  Mach. 
Co.,   96  111.  App.    545. 

87.  Real  estate  agent — Carruthers  v.  Dlef- 
endorf,  66  App.  Div.   (N.  Y.)   31. 

88.  Parker  v.  Moore  (C.  C.  A.)  115  Fed. 
799, 

89.  Veltum  v.  Koehler,  85  Minn.  125. 

90.  Allen  v.  Gates,   73  Vt.  222. 

91.  Ward  v.  Work,  65  App.  Div.  (N.  Y.)  84 

92.  Hardy  v.  Jones.  63  Kan.  8,  64  Pac.  969^ 
Accounting    In    lllegral    transactions     (Note). 

An  agent  is  not  discharged  from  accounting 
because  of  a  past  unlawful  act  or  intention  of 
the  principal  collateral  to  the  subject  matter 


64 


AGENCY. 


C.  Compensation  and  lien  of  agent — After  an  agent  has  fixed  the  value  of  his 
services  and  it  has  been  accepted  by  the  principal,  the  agent  cannot  recover  addi- 
tional compensation.^^  Violation  of  instructions,"  or  fraud/"  or  acting  for  the 
other  part}^  to  a  contract  without  knowledge  of  his  principal,®'  or  assuming  other 
and  inconsistent  employment"  will  destroy  his  right  to  compensation,  but  a  prin- 
cipal whose  agent  agreed  not  to  work  for  other  principals  in  the  same  business, 
cannot  defeat  his  right  to  commissions  by  a  breach  of  the  contract  which  he 
knew  and  did  not  act  upon.**  Substantial  performance  of  contract  by  agent  for 
sale  of  machinery  in  local  terrritory  gives  him  the  right  to  commissions  on  sales 
by  principal  witliin  such  territory.®*  The  right  of  an  agent  to  compensation  for 
settling  a  dispute  concerning  a  sale  of  lumber  does  not  depend  upon  a  failure  of 
the  lumber  to  fulfill  the  requirements.^ 

Where  the  duties  of  an  agent  terminate  with  the  relation,  he  cannot  retain 
commissions  on  the  funds  of  his  principal  to  accrue  in  the  future.''  Where  the 
agency  is  terminated  by  the  principal  for  good  cause,'  or  where  a  contract  of 
agency  without  terms  as  to  time  is  terminated  by  the  principal  on  reasonable 
notice,*  the  agent  is  not  entitled  to  commissions  on  business  done  subsequently. 
Eesignation  by  the  agent  cuts  off  his  right  to  commissions  on  business  done  where 
his  contract  allows  such  commissions  only  during  continuation  of  the  agency,^ 
and  the  agent  is  not  entitled  to  compensation  because  he  is  personally  liable  on 
contracts  made  for  the  principal.' 

An  agent  employed  for  a  certain  sum  and  commission  from  net  profits  to 
manage  the  principal's  business,  may  recover  the  salaries  paid  to  his  necessary 
assistants  from  his  principal,^  and  losses  from  sales  made  by  him  cannot  be  de- 
ducted from  his  fi:xed  salary  but  only  from  his  percentage  of  net  profits.^     jSTo 


of  the  agency.  Hammon,  Cont.,  §  253,  citing  In- 
gersoll  V.  Campbell.  46  Ala.  282;  "Woodworth 
V.  Bennett,  43  N.  Y.  273.  Thus,  if  he  sells  the 
principal's  goods  in  an  unlawful  traffic,  and 
collects  the  price,  the  principal  may  recover 
It  from  him.  Ibid.,  citing  Planters'  Bank  v. 
Union  Bank,  16  Wall.  (U.  S.)  483,  21  Law.  Ed. 
473;  O'Bryan  v.  Fitzgerald,  48  Ark.  487; 
Hertzler  v.  Geigley,  196  Pa.  419.  And  in  some 
states,  not  in  all,  if  an  attorney  collects  a 
fund  pursuant  to  a  champertous  agreement, 
the  client  may  recover  it.  Ibid.,  citing  cases. 
Some  courts  hold  that  the  agent  must  ac- 
count for  the  fund,  even  though  he  directly 
participated  in  the  illegal  purpose  of  the 
principal.  Hardy  v.  Jones,  supra.  Contra: 
Samuels  v.  Oliver,  130  111.  73.  If  the  illegal 
object  of  the  principal  has  not  been  accom- 
plished, his  right  to  recover  back  the  fund 
from  the  agent  is  unquestionable.  Hammon, 
Cont.,  §  258.  citing  Taylor  v.  Lendey  (Eng.) 
9  East,  49;  Sampson  v.  Shaw,  101  Mass.  145. 
Thus  he  may  recover  money  placed  in  the 
hands  of  a  stakeholder  on  a  wager.  Ibid., 
citing  Corson  v.  Neatherny,  9  Colo.  212; 
House  V.  McKenney.  46  Me.  94.  And  in  most 
states  this  is  so  even  though  the  wager  was 
determined  before  demand  made.  Ibid.,  cit- 
ing Adkins  v.  Flemming,  29  Iowa,  122;  "Wil- 
lis V.  Hoover.  9  Or.  418.  Contra:  Johnston  v. 
Russell.  37  Cal.  670.  If  the  principal  waits 
until  the  money  has  been  expended  by  the 
agent,  however,  he  cannot  recover  it  back. 
Hammon,  Cont.,  §  257,  citing  White  v.  Bar- 
ber, 123  U.  S.  392,  31  Law.  Ed.  243.  A  full 
discussion  and  citation  of  cases  on  these 
points  will  be  found  in  Hammon,  Cont.,  5  253. 
93.  Real  estate  agent — Carruthers  v.  Dief- 
endorf.   66  App.  Div.    (N.  T.)   31, 


94.  Sale  of  land  by  agent — Huffman  v.  El- 
lis (Neb.)  90  N.  W.  552;  Howell  v.  Denton 
(Tex.  Civ.  App.)    68  S.  W.  1002. 

95.  Fraudulent  purchase  at  judicial  sale 
in  derogation  of  principal's  Interests — Quinn 
V.  Le  Due  (N.  J.  Ch.)   51  Atl.  199. 

96.  Real  estate  broker — Linderman  v.  Mc- 
Kenna,   20   Pa.  Super.  Ct.    409. 

97.  Carr  v.  Ubsdell  (Mo.  App.)  71  S.  W. 
112. 

98.  Davis  V.  Huber  Mfg.  Co.  (Iowa)  93  N. 
W.  78. 

99.  Keene  v.  Frick  Co.  (Iowa)  93  N.  W. 
582. 

1.  Williamson  v.  North  Pac.  L.  Co.  (Or.) 
70  Pac.  387. 

3.  Real  estate  agents  retaining  commis- 
sion on  rents  to  accrue  after  termination  of 
the  agency — Thomas  v.  Gwyn,  131  N.  C.  460. 

3.  Loan  agent — Urquhart  v.  Scottish- 
American  Mortg.  Co.,  85  Minn.  69. 

4.  Sales  agent — Barrett  v.  Gilmour  (Eng.) 
Com'l  Cas.  72. 

5.  Insurance  agent — King  v.  Raleigh  (Mo. 
App.)   70  S.  W.  251. 

6.  Loan  agent  who  personally  guarantees 
loans  to  be  collected  for  his  principal;  In 
this  case  the  agent  notified  the  principal  that 
he  would  demand  salary  until  guaranteed 
loans  were  settled  before  he  received  accep- 
tance of  his  resignation  already  sent  the 
principal — Greer  v.  Featherston  (Tex.  Civ. 
App.)    68   S.   W.   48;   Id.,   69   S.  W.   69. 

7.  A.  B.  Frank  Co.  v.  Waldrup  (Tex.  Civ. 
App.)    71   S.  W.    298. 

8.  A.  B.  Frank  Co.  v.  Waldrup  (Tex.  Civ, 
App.)    71  S.  W.   298. 


commission  can  be  recovered  on  a  quantum  meruit  for  selling  lands  without  writ- 
ten authority,®  A  real  estate  agent  who  brings  the  parties  to  a  sale  together  is 
entitled  to  commission  if  the  sale  is  made  within  the  price  named  in  his  instruc- 
tions.**' A  sales  agent  for  a  commission  equal  to  the  difference  between  list  and 
trade  prices  is  entitled  to  such  commission  on  credit  sales,  though  collection  had 
not  been  made.**  A  contract  for  percentage  commissions  on  cash  payments  and 
paid  notes  for  goods  entitles  the  agent  to  commission  on  partial  payments  made 
before  the  goods  are  returned  to  the  principal.  Where  a  principal  retains  the 
right  to  make  sales  within  the  territory  of  his  agent  and  agrees  to  give  him  com- 
mission on  all  sales  resulting  from  his  efforts,  he  is  entitled  to  commission  on 
all  such  sales  whether  completed  by  him  or  by  a  general  agent;  and  the  local 
agent  is  not  required  to  submit  to  a  reduction  in  price  by  the  general  agent  to 
complete  such  sales.*^  A  contract  of  agency,  without  time  limit,  giving  the  agent 
gross  percentage  commissions  on  all  business  done,  and  requiring  him  to  bear 
all  expenses,  entitles  him  to  the  percentage  less  expenses  on  all  receipts  on  busi- 
ness done  prior  to  termination  of  the  agency  by  the  principal  without  cause.*' 
Where  the  contract  is  for  a  stipulated  salary  and  expenses  not  to  exceed  a  certain 
sum,  the  principal  may  offset  moneys  furnished  for  expenses  against  a  salary  bal- 
ance until  the  agent  accounts  properly  for  money  advanced.**  An  agent  who  may 
draw  on  his  principal  regardless  of  the  amount  of  his  commissions  due,  need  not 
show  the  amount  of  such  commissions  in  an  action  to  recover  an  instalment  of 
his  drawing  account  unless  the  agency  has  terminated.*" 

A  subagent  cannot  recover  compensation  from  the  principal  where  the  lat- 
ter's  contract  with  the  general  agent  makes  the  latter  alone  liable,*®  but  his  right 
to  recover  commissions  from  a  general  agent  is  not  affected  by  a  rule  of  the  latter 
of  which  the  subagent  had  no  knowledge.*^ 

The  basis  of  an  agent's  compensation  for  services  remaining  to  be  done  after 
wrongful  breach  of  the  agency  by  the  principal  is  the  average  value  of  services 
already  rendered  unless  those  remaining  are  shown  to  be  of  greater  value.**  A 
tenant  empowered  to  remain  in  possesssion  after  the  term  to  care  for  the  premises 
and  collect  rents  to  be  applied  on  a  debt  due  him  from  the  landlord,  is  entitled  to 
reasonable  compensation.*^ 

Where  the  payment  of  a  trust  fund  to  his  principal  will  remove  it  from  the 
jurisdiction  so  that  he  cannot  collect  for  services  and  expenses,  the  agent  has 
an  equitable  lien  on  the  fund.^" 

D.  Remedies  and  procedure. — Trover  will  lie  against  an  agent  for  conversion 
of  money  which  his  contract  requires  him  to  turn  over  in  identity.^* 

Pleading.-^ — The  agent  must  show  a  breach  of  the  contract  by  specific  aver- 
ments.2'     An  agent  may  show  diligence  in  trying  to  recover  property  of  his  prin- 


9.  Gen.  St.  N.  J.,  p.  1604,  §  10  (Statute  of 
Frauds) — Goldstein  v.  Scott,  76  App.  Div.  (N. 
Y.)    78. 

10.  McCaffrey  v.  Page,  20  Pa.  Super.  Ct. 
40«. 

11.  Sherman  v.  Consolidated  Dental  Mfg. 
Co.,    202   Pa.    451. 

12.  Sales  of  machinery  by  local  agent — 
Davis  V.  Huber  Mfg.  Co.   (Iowa)   93  N.  W.  78; 

36,  Baskerville  v.  Gaar,  Scott  &  Co.,  15  S. 
D.  211. 

13.  Loan  agent — ^Urquhart  v.  Scottish- 
American  Mortg.  Co.,  85  Minn.   69. 

14.  Moyses  v.    Rosenbaum,    98   111.   App.    7. 

15.  Isaacsen  v.  Andrews,  64  App.  Div.  (N. 
Y.)    408. 

Cur.  Law  5. 


16.  Insurance  subagency — Union  Casualty 
&  Surety  Co.  v.  Gray  (C.  C.  A.)   114  Fed.  422. 

17.  Lane  v.  Raney,  131  N.  C.  375. 

18.  McLane  v.  Maurer  (Tex.  Civ.  App.)  66 
S.  W.   693. 

19.  Allen  V.  Gates,  73  Vt.  222. 

30.  Underhill  v.  Jordan,  72  App.  Div.  (N 
Y.)  71. 

21.  Salem  Traction  Co.  v.  Anson,  41  Or 
562,  67  Pac.  1015,  69  Pac.  675. 

22.  Sufficiency  of  pleading  In  action  for 
commissions  to  constitute  a  cause  for  an 
action  at  law — Gee  v.  Pendas,  66  App.  Div. 
(N.  Y.)  566;  in  action  against  agent  for  re- 
covery   for    property     stolen     from     agent 

Keystone  Watch  Case  Co.  v.  Romero,  36  Misc. 
(N.  Y.)   381. 


66 


AGRICULTURE. 


cipal,  stolen  while  in  his  possession,  under  a  general  allegation  of  diligence.^* 
An  admission  of  a  principal  that  his  general  agent  appointed  plaintiff  a  snbagent 
is  not  inconsistent  with  a  defense  that  the  agent's  powers  to  appoint  were  limited 
and  that  termination  of  the  general  agency  terminated  the  subagency.^* 

Evidence  and  burden  of  proof;  questions  of  fact.^^ — Where  an  agent  claims 
money  retained  by  him  as  commission,  he  must  establish  his  right  to  it  as  such.-' 
A  violation  of  his  instructions  by  an  agent  must  be  proved  by  the  principal.-* 
An  employer  has  the  burden  of  showing  damage  in  an  action  against  an  insurance 
company  for  negligence  to  appeal  from  a  judgment  for  damages,  obtained  by  an 
employe  against  the  company,  where  the  insurance  company,  under  its  policy, 
undertook  the  defense  for  the  employer.^^  An  agent  who  has  charge  of  his  prin- 
cipal's property  does  not  assume  the  burden  of  proving  that  losses  did  not  result 
from  negligence  of  his  employes  in  charge  of  the  property,  in  an  action  for  com- 
pensation, where  it  appears  that  before  the  losses  were  shown  to  have  occurred 
the  principal  took  possession  of  the  property.^"  An  agent  to  collect  a  debt  by 
attachment,  who  induced  his  principal  to  remain  away  from  the  sale  and  pur- 
chased himself  at  a  low  price,  has  the  burden  to  prove  advancements  which  he 
claims  to  have  made  to  the  principal. ^^  Insufficient  evidence  of  discharge  will 
not  warrant  a  non-suit  in  an  action  to  recover  an  instalment  of  agreed  advances 
on  commissions.^^  Declarations  of  an  agent  in  course  of  his  employment  are  ad- 
missible against  the  principal  in  an  action  for  breach  of  contract,^^  if  a  part  of 
the  res  gestae,  or  if  the  agent  is  dead,^*  but  to  admit  them  agency  must  first 
be  shown.^^  In  an  action  to  recover  commisssions,  conversations  between  the  agent 
and  third  persons  in  absence  of  the  principal  are  inadmissible.'*  A  finding  that 
the  agent  was  employed  at  a  certain  commission  and  that  he  performed  his  serv- 
ices, is  sufficient  to  sustain  a  verdict  in  his  behalf.^'^ 

In  his  action  for  compensation,  the  good  faith  of  an  agent  is  a  question  for 
the  jury.'*  Wliere  the  evidence  is  conflicting  as  to  the  fact  of  agency  the  jury 
should  not  be  directed  to  find  no  agency  existing.'^ 

AGIlICirLTURE.40 

§  1.  The  pursuit  of  agriculture'^^  and  production  and  sale  of  products*-  have 
been  subjects  of  regulation,  as  shown  in  foot  notes.*' 


23.  An  allegation  that  the  principal  "did 
not  keep  his  promise  and  guaranty,"  is  in- 
sufficient— Picker  v.  Weiss,  39  Misc.  (N.  Y.) 
22. 

S-1.  Keys; tone  "Watch  Case  Co.  v.  Romero, 
36   Misc.    (N.   Y.)    381. 

25.  Union  Casualty  &  Surety  Co.  v.  Gray 
(C.  C.  A.)    114  Fed.   422. 

26.  Sufficiency  of  evidence  of  conversion 
by  agent — Salem  Traction  Co.  v.  Anson,  41 
Or.  562,  67  Pac.  1015.  69  Pac.  675;  Tyler  v. 
Mutual  Dist.  Messenger  Co.,  17  App.  D.  C.  85. 

27.  Thomas  v.  Gwyn.  131  N.  C.  460. 

28.  Marshall  v.  Ferguson,  94  Mo.  App.  175. 

29.  The  presumption  that  the  judgment 
was  correct,  prima  facie  shows  that  the 
employer  had  not  been  damaged.  The  insur- 
ance company,  in  taking  the  appeal,  had  the 
same  responsibility  as  any  other  agent — 
Getchell  &  Martin  Lumber  &  Mfg.  Co.  v. 
Employers'  Liability  Assur.  Corp.  (Iowa)  90 
N.   W.    616. 

30.  Sufficiency  of  evidence  to  show  that 
expenditures    made    by    agent     were     made 


necessary     by     his     negligence — "Veltum      v. 
Koehler.  85  Minn.  125. 

31.  Quinn  v.  Le  Due  (N.  J.  Ch.)  51  Atl. 
199. 

32.  Isaacsen  v.  Andrews,  64  App.  Dlv.  (K 
Y.)     408. 

33.  Barnesville  Mfg.  Co.  v.  Love  (Del.) 
52  Atl.   267. 

34.  Southern  R.  Co.  v.  Allison.  115  Ga. 
635. 

35.  Pease  v.  Trench,  197  111.  101. 

36.  Rutherford  v.  Simpson  (Minn.)  92  N. 
W.  413. 

37.  Carr  v.  Ubsdell  (Mo.  App.)  71  S.  W. 
112. 

38.  McCaffrey  v.  Page,  20  Pa.  Super.  Ct. 
400. 

39.  Agency  for  purchase  of  stock  in  con- 
solidating corporations — StoU  v.  Loving  (C. 
C.  A.)    112   Fed.   885. 

40.  Agricultural  schools,  see  Colleges  and 
Academies.  Agister's  liens,  see  Animals. 
Drainage    or    irrigation    of    farm    lands,    see 


ALIENS. 


67 


§  2.  Products  and  crop  liens. — Annual  crops  are  sometimes  regarded  as  chat- 
tels** and  sometimes  as  part  of  the  realty/^  but  the  rights  as  between  the  lessee 
and  lessor  depend  on  the  terms  and  construction  of  the  contract  of  lease.*" 

Liens  on  crops  are  statutory,  and  will  be  created  and  enforced  according  to 
the  local  statutes.*^  A  debt  for  supplies  necessary  to  raise  crops  is  privileged  in 
Louisiana,*®  and  purchasers  are  presumed  to  know  of  its  existence.** 

§  3.  Agricultural  societies. — Under  a  contract  giving  one  the  right  to  con- 
duct a  show  on  state  fair  grounds,  the  licensee  does  not  take  any  interest  in  the 
realty  where  he  was  to  exhibit.^"  One  holding  an  exclusive  privilege  has  a  cause 
of  action  for  an  infringement  thereof.*^ 

A  society  may  recover  against  an  officer  for  acts  done  under  color  of  office  but 
without  authority.'^ 

An  agricultural  society  is  in  duty  bound  to  use  reasonable  care  in  keeping  its 
grounds  and  approaches  thereto  safe,"'  and  in  granting  exhibition  privileges  to,  and 
in  the  exercise  of  such  privileges  by  others,  it  must  see  that  public  safety  is  not 
jeopardized."*  In  an  action  for  personal  injuries,  it  is  not  necessary  to  expressly 
state  facts  in  the  declaration  whenever  the  defendant  neglected  its  duty  in  failing 
to  take  proper  care  of  its  grounds."' 

ALIENS. 

§  1.  Who  are  aliens.^' — Mexican  bom  persons  residing  on  territory  acquired 
by  the  United  States  remained  Mexican  citizens  until  taking  the  declaration  re- 
quired,"^ and  a  person  bom  in  Porto  Eico  remained  a  citizen  thereof  after  the  treaty 
of  Paris  and  Act  April  12,  1900." 


Public  Works  and  Improvements;  Waters  and 
Watercourses. 

41.  Fruit  tree  Inspectors.  Utah  Rev.  St. 
1898.  S  1176  amended  Laws  1899,  c.  47,  pro- 
viding for  the  appointment  of  county  In- 
spectors, violates  Const.,  art.  13,  §  5,  prohibit- 
ing the  legislature  from  Imposing  taxes  for 
county  purposes,  etc. — State  v.  Standford,  24 
Utah,  148,  66  Pac.  1061.  Fertilizers.  A  sale 
thereof  is  valid  where  the  required  tag  had 
been  attached  but  was  lost  In  transitu.  Pol. 
Code.  §  1563 — Holt  v.  Navassa  Guano  Co.,  114 
Ga.  666. 

42.  Adulteration.  Food.  Health.  Obm- 
merce.     Inspection.     Warehousing. 

43.  Criminal  prosecutions.  Indictment 
charging  a  sale  of  fertilizers  In  a  package 
"not  bearing  In  print  (and  the  same  not  be- 
ing accompanied  by)  a  statement  showing 
Its  weight"  is  insufficient.  Md.  Code,  art.  61, 
§  2,  subsec.  2 — State  v.  Long,  94  Md.  637.  Pur- 
chasing seed  cotton  at  night.  Error  to  In- 
struct on  confessions — Smith  v.  State,  115  Ga. 
686. 

44.  Swafford  v.  Spratt,  93  Mo.  App.  631. 

45.  Within  the  homestead  exemption  laws 
— Moore  v.  Graham  (Tex.  Civ.  App.)  69  S.  W. 
200.  Tiffany  Real  Property,  §  223,  p.  521. 
See,  also.  Emblements,  Estates  of  Decedents, 
Wills,  Deeds  of  Conveyance. 

46.  Landlord  and  Tenant. 

47.  A  minor  who  with  his  father's  teams 
renders  services  In  the  cultivation  of  a 
crop  for  the  father's  creditor.  If  entitled  to 
his  own  services  may  have  a  lien  therefor, 
but  not  for  the  horse's  services — Tuckey  v. 
Lovell  (Idaho^  71  Pac.  122.  A  farm  laborer 
In  Texas,  making  affidavit  for  a  Hen  need  not 
state  the  particular  crops  raised — Allen  v. 
Glover  (Tex.  Civ.  App.)  65  S.  W.  379. 


48.  Weill  V.  Kent,  107  La.  322. 

49.  Knowledge  need  not  therefore  be  plead- 
ed or  proved — Weill  v.  Kent,  107  La.  322. 

50.  License  held  violated  and  license  not 
entitled  to  recover  part  consideration  paid 
under  the  contract — Mackay  v.  Minnesota 
State  Agr.  Soc.  (Minn.)  92  N.  W.  539. 

51.  Privilege  to  vend  refreshments — Ma- 
son V.  Dewls,  24  Ky.  Law  R.  1312,  but  being 
harassed,  annoyed  and  disturbed  In  mind 
thereby.  Is  not  an  element  of  damage — Ma- 
son V.  Dewls,  24  Ky.  Law  R.  1312. 

52.  Selling  and  assisting  In  the  removal  of 
buildings  without  authority  makes  the  offi- 
cer a  trespasser  ab  initio — Kent  Co.  Agr.  Soc. 
v.  Ide,   128  Mich.   423. 

53.  A  railroad  platform  without  the  so- 
ciety's grounds  used  by  the  public  to  reach 
the  grounds  Is  an  approach  to  the  grounds — 
Thornton  v.  Maine  State  Agr.  Soc,  97  Me. 
108. 

54.  It  Is  liable  for  the  death  of  one  killed 
by  a  bullet  from  a  shooting  gallery  within 
the  grounds,  conducted  by  one  having  exhi- 
bition privileges,  which  passed  through  the 
fence  and  killed  the  person  standing  on  a 
railroad  platform  without  the  grounds — 
Thornton  v.  Maine  St.  Agr.  Soc.  97  Me.  108. 
It  Is  liable  for  Injuries  sustained  by  the  fall- 
ing of  seats  negligently  erected  by  an  ex- 
hibitor— Texas  State  Fair  v.  Marti  (Tex.  Civ. 
App.)  69  S.  W.  432;  Same  v.  Brittain  (C.  C.  A.) 
118   Fed.   713. 

55.  Obstruction  of  bicycle  race  track — 
Benedict  v.  Union  Agr.  Soc,  74  Vt.  91. 

66.  As  to  American  born  Chinese,  see  U. 
S.  V.  Leung  Sam,  114  Fed.  702;  Same  V.  Lee 
Yee,  Id.;  Same  v.  Leung  Foo,  Id. 

67.  And  could  not  recover  for  Indian  dep- 


68 


ALIENS. 


§  2.  DisalUities  and  privileges. — The  common  law  disability  of  aliens  to 
inherit  land,  has  been  changed  in  some  states  by  statute."  As  against  third  per- 
sons a  devise  of  realty  to  a  non-resident  alien,^°  or  the  location  of  a  mining  claim 
by  an  alien,  is  valid,"  since  the  question  of  disability  to  take  and  hold  realty  can 
only  be  raised  by  the  state/^ 

A  non-resident  alien  may  sue.^'  An  alien  cannot  hold  pnblic  oflBce,  but  may 
render  non-oflScial  service.'* 

§  3.  Immigration,  exclusion  and  expulsion. — An  attempt  to  import  women 
for  purposes  of  prostitution  in  not  an  offense  under  the  immigration  laws,**  nor  is 
a  mere  advertisement  for  laborers  in  a  foreign  country  a  violation  of  the  Alien 
Contract  Labor  Law.®'  An  action  for  debt  is  the  proper  remedy  to  recover  the 
penalty  for  importing  contract  labor,'^  and  the  declaration  must  particularly  show 
the  character  of  the  assistance  rendered  and  services  to  be  performed.'^ 

Exclusion. — It  is  within  the  power  of  congress  to  vest  in  executive  officers 
the  power  to  determine  the  mode  of  ascertaining  citizenship  with  a  view  to  the  ex- 
clusion of  aliens.®^  The  right  to  exclude  an  immigrant  is  not  lost  by  giving  him 
permission  to  land  for  temporary  purposes.'"  A  Chinaman  born,  and  permanently 
residing,  in  the  United  States  cannot  be  excluded,  though  the  parents  were  aliens.'^ 

Right  of  transit. — The  right  of  Chinese  persons  to  cross  the  United  States  in 
journeys  to  and  from  other  countries  was  not  dependent  on  any  treaty,''*  and  the 
treatv  with  China  of  December  8th,  1894,  in  effect  recognized  and  agreed  to  the 
continuance  of  the  treasury  department  regulations  of  the  privilege  then  in  force  ;^' 
the  treaty  of  March  17,  1894,  was  not  violated  by  rule  of  December  8,  1900,  placing 
the  burden  on  Chinese  persons  to  show  "that  a  bona  fide  transit  only  was  intended."^* 
The  decision  of  the  customs  officer  refusing  to  grant  the  privilege  is  final  and  not 
subject  to  review.'^' 

Registration. — Act  May  5,  1892,  providing  for  the  registration  of  resident 
Chinese  and  imj)osing  on  them  the  burden  of  establishing  the  right  to  remain  is 
valid,^'  and  "laborers"  as  defined  in  that  act  and  as  amended  Xov.  3,  1893,  and 


redatlons  committed  before  making  the  de- 
declaration— De  Baco  V.  U.  S..   36  Ct-  CI.  407. 

58.  In  re  Gonzalez.  118  Fed.  941. 

59.  Nebraska  Comp.  St..  c.  73,  §§  70-73. 
abolished  the  disability  as  to  land  within  the 
corporate  limits  of  a  municipality — Dougher- 
ty V.  Kubat  (Xeb.)  93  N.  W.  317,  and  under 
It  heirs  of  a  deceased  alien  may  inherit  such 
lands,  Irrespective  of  their  citizenship.  Sess. 
Laws  1889.  c.  58.  Glynn  v.  Glynn.  62  Xeb.  872. 
This  statute  Is  not  special  legislation  but  is 
constitutional — Dougherty  v.  Kubat  (Neb.) 
93  N.  "W.  317. 

60.  Under  Laws  1875,  c.  38 — Smith  v. 
Smith.   70  App.  Div.   (N.  T.)   286. 

61.  McKinley  Creek  Mln.  Co.  v.  Alaska 
United  Min.  Co..  183  U.  S.  563,  46  Law.  Ed.  331. 

C2.  Smith  V.  Smith.  70  App.  Div.  (N.  T.) 
286;  McKinley  Creek  Min.  Co.  v.  Alaska  Unit- 
ed Min.  Co..  183  U.  S.  563,  46  Law.  Ed.  331. 

63.  A  mine  owner  for  damages  by  reason 
of  failure  to  comply  with  Hurd's  St.  page 
1157.  c.  93 — Kelly^'ille  Coal  Co.  v.  Petraytis, 
195  111.  215;  affirming  95  111.  App.  635.  Alien- 
age of  party  as  ground  for  removal  to  fed- 
eral court,  see  Removal  of  Causes. 

64.  Cal.  Pol.  Code,  §  841.  but  an  alien  may 
be  appointed  by  county  supervisors  to  attend 
Indigent  sick — People  v.  "Wheeler,  136  Cal. 
652.    69    Pac.    435. 

65.  Merely   proposing  during  the   voyage 


that  women  brought  on  promise  of  employ- 
ment engage  In  prostitution  is  not  an  of- 
fense within  Act  March  3,  1875,  J  3 — In  re 
Guayde,  112  Fed.  415. 

66.  U.  S.  V.  Baltic  Mills  Co.,  117  Fed.  959. 

67.  23  U.  S.  Stat,  at  Large  332,  5  3 — ^U.  S. 
V.  McElroy,  115  Fed.   252. 

68.  Merely  negativing  the  statute  Is  not 
sufficient — U.  S.  v.  McElroy.   115   Fed.   252. 

69.  U.  S.  V.  Lee  Huen,  118  Fed.  442. 

70.  And  he  is  bound  to  show  that  he  Is 
not  likely  to  become  a  public  charge — In  re 
Gayde,  113  Fed.  5S8. 

71.  U.  S.  V,  Leung  Sam.  114  Fed.  702;  Same 
V.  Lee  Tee,  Id.;  Same  v.  Leung  Foo,  Id. 

72.  25  U.  S.  Stat,  at  Large,  478,  §  8 — In  re 
Lee  Gon  Tung,  111  Fed.  99S. 

73.  28  U.  S.  Stat,  at  Large,  1211,  art  3. 
par.  2 — In  re  Lee  Gon  Tung.  Ill  Fed.  998. 

74.  28  U.  S.  Stat,  at  Large.  1211 — Fok  Tung 
To  V.  U.  S..  185  U.  S.  296,  46  Law.  Ed.  917; 
Lee  Gon  Tung  v.  Same,  185  U.  S.  306,  46 
Law.    Ed.    921. 

75.  Fok  Tung  To  v.  U.  S..  185  U.  S.  296.  46 
Law.  Ed.  917;  Lee  Gon  Tung  v.  Same.  185  U. 
S.  306,  46  Law.  Ed.  921;  In  re  Lee  Gon  Tung, 
111  Fed.  998,  cannot  be  reviewed  by  habeas 
corpus— Fok  Tung  To  v.  U.  S..  1S5  U.  S.  296. 
46  Law.  Ed.  917;  Lee  Gon  Tung  v.  Same.  183 
U.  S.  306.  46  Law.  Ed.   921. 

76.  Evidence  Insufficient  to  show  Chinese 


ALIENS. 


69 


in  the  treaty  of  1880,  may  be  excluded."  A  Chinese  prostitute  is  within  the  defini- 
tion.''^ These  statutes,  however,  do  not  apply  to  a  resident  Chinese  woman  who 
married  an  American  citizen  after  their  passage,'^®  nor  to  a  resident  who  thereafter 
became  a  laborer  f  though  if  he  thereafter  disposes  of  his  business,  departs  from 
and  returns  to  the  United  States  as  a  laborer,  he  may  be  deported.^^  If  registered 
under  the  original  act,  registration  under  the  amendment  need  not  be  made.®^ 

Certificate. — The  customs  officer  in  determining  the  right  of  a  Chinese  person 
to  enter,  may  disregard  the  certificate  of  residence,**  and  his  decision  cannot  be  at- 
tacked collaterally.** 

Deportation;  procedure. — The  treaty  with  China  of  December  8,  1894,  left  in 
force  the  previous  statutes  governing  the  procedure  for  deportation  of  Chinese 
laborers.^'*  A  United  States  commissioner  has  jurisdiction  to  determine  the  right 
of  a  Chinese  laborer  without  certificate  to  remain;*^  and  the  commissioner  first 
taking  has  exclusive  jurisdiction,*'^  which  is  not  lost  because  the  complainant  does 
not  positively  aver  his  official  character,**  or  because  a  defense  of  citizenship  is 
interposed.*^  The  persons  sought  to  be  deported  are  only  required  to  produce  suffi- 
cient credible  evidence,  as,  when  fairly  considered,  will  satisfy  the  judgment  of  a 
reasonable  man  of  their  right  to  remain;®"  and  the  proceedings  not  being  criminal, 
the  failure  of  the  persons  sought  to  be  deported,  to  testify,  may  be  taken  into  con- 
sideration.®^ 

Tlie  appeal  from  his  decision  is  to  the  district  judge,®^  and  may  be  taken  on 
oral  notice,®'  but  the  notice  alone  does  not  constitute  an  appeal.®*  The  appeal  need 
not  be  presented  within  ten  days,®^  but  whether  the  right  to  a  review  has  been  lost 
by  delay  in  bringing  on  a  hearing,  is  to  be  determined  by  the  judge.®*  If  no  ob- 
jection has  been  taken  to  the  commissioner's  finding  the  appeal  will  be  considered 
as  though  submitted  on  an  agreed  statement  of  facts,®''  and  unless  against  the  weight 
of  evidence  the  findings  will  not  be  disturbed.®*  Where  the  sufficiency  of  facts 
on  the  right  of  a  Chinese  person  to  remain  is  alone  involved,  the  decision  of  the 
judge  of  the  district  court  on  appeal  is  final." 


a  native  of  Hawaiian  Islands. — U.  S.  v.  Chun 
Hoy  (C.  C.  A.  Hawaii)   111  Fed.  899. 

77.     Lee  Ah  Yin  v.  U.  S.   (C.  C.  A.)   116  Fed 
614. 

7S. 
614. 

79. 
920. 

80. 

81. 


Lee  Ah  Yin  v.  U.  S.   (C.  C.  A.)  116  Fed. 
Tsoi  Sim  v.  U.   S.    (C.   C.  A.)    116  Fed. 


In  re  Chin  Ark  "Wing,  115  Fed.  412. 

U.  S.  V.  Moy  Ylm.  115  Fed.  652;  Same 
V.  Chung  You,  Id.;  Same  v.  Dong  Wor,  Id.; 
Same  v.  Fee  Toy,  Id.;  Same  v.  Moy  Shang, 
Id.;  Same  v.  Leong  Hau  Che,  Id. 

82.  U.  S.  V.  Jung  Jow  Tow,  110  Fed.  154. 

83.  Lee  Lung  v.  Patterson,  186  U.  S.  168, 
46  Law.  Ed.  1108;  affirming  In  re  Lee  Lung, 
102   Fed.   132. 

84.  In  subsequent  deportation  proceedings 
— U.  S.  V.  Wong  Soo  Bow,  112  Fed.  416. 

85.  U.  S.  V.  Lee  Yen  Tal,  185  U.  S.  213.  46 
Law.  Ed.  878.  Lee  Lung  v.  Patterson,  186  U. 
S.  168,  46  Law.  Ed.  1108;  affirming  judgment, 
In  re  Lee  Lung,  102  Fed.  132. 

86.  Fong  Mey  Yuk  v.  U.  S.  (C.  C.  A.)  113 
Fed.  898;  Chin  Bok  Kan  v.  U.  S.,  186  U.  S. 
193,  46  Law.  Ed.  1121;  Chin  Ying  v.  Same, 
186  U.  S.  202,  46  Law.  Ed.  1126.  Congress  may 
vest  the  power  to  determine  right  to  re- 
main In  executive  officers — U.  S.  v.  Lee  Huen, 
118  Fed.  442. 

87.  U.  S.  V.  Luey  Guey  Auck,  115  Fed.  252. 

88.  Chin  Bok  Kan  v.  U.  S.,  186  U.  S.   193, 


46  Law.  Ed.  1121;  Chin  Ylng  v.  Same,  186  U.  S. 
202    46  Law.  Ed.   1126. 

89.  Chin  Bok  Kan  v.  U.  S.,  186  U.  S.  193, 
46  Law.  Ed.  1121;  Chin  Ting  v.  Same,  186  U. 
S.  202,  46  Law.  Ed.  1126. 

90.  U.  S.  V.  Lee  Huen,  118  Fed.  442;  of 
residence — Quong  Sue  v.  U.  S.  (C.  C.  A.)  116 
Fed.  316;  of  domestic  birth — Lee  Ah  Yin  v. 
U.  S.  (C.  C.  A.)  116  Fed.  614;  Yee  N'Goy  v. 
Same  (C.  C.  A.)  116  Fed.  333;  U.  S.  v.  Lee 
Huen,  118  Fed.  442;  of  right  of  resident  to  en- 
ter after  departure — U.  S.  v.  Leung  Sam,  114 
Fed.  702;  Same  v.  Lee  Yee,  Id.;  Same  v. 
Leung  Foo,  Id.;  of  British  citizenship;  de- 
ception In  procuring  arrest — U.  S.  v.  Lee 
Kee   (C.  C.  A.)    116   Fed.   612. 

91.  U.  S.  V.  Lee  Huen,  118  Fed.  442. 

92.  Act  Sept.  13,  1888 — Chow  Loy  v.  U.  S., 
112  Fed.  354;  not  by  habeas  corpus — In  re 
Chow  Loy,  110  Fed.  952. 


Chow  Loy  V.  U.  S.   (C.  C.  A;.)  112  Fed. 

In  re  Chow  Loy.  110  Fed.  952. 

Chow  Loy  V.  U.  S.   (C.  C.  A.)   112  Fed. 


93. 

354. 
94. 
95. 

354. 

96.  Chow  Loy  V.  United  States  (C.  C.  A.) 
112  Fed.  354. 

97.  In  re  Chin  Ark  Wing,  115   Fed.   412. 

98.  U.  S.  V.  Leung  Sam,  114  Fed.  702;  Same 
V.  Lee  Yee,  Id.;  Same  v.  Leung  Foo,  Id.;  Same 
V.   Lee  Huen.   118  Fed.  442. 

99.  Chin  Bok  Kan  v.  U.  S.,   186  U.  S.  193; 


70 


ALIMONY. 


§  4.  yafuralizaiion. — A  native  of  Japan  cannot  be  natnralized.*  A  mere 
want  of  knowledge  of  the  nature  of  onr  institutions  will  not  alone  warrant  a  refusal 
of  citizenship.'  A  judgment  naturalizing  an  alien  excluded  from  the  right,  may 
be  attacked  collaterally.* 

AT/nvTn-Nnr.4 

§  1.  Nature  and  purpose  of  the  aUowance. — ^Alimonv  is  not  a  "debt,"' 
though  as  to  fraudulent  transfers  the  wife  may  be  regarded  as  a  creditor.®  The 
temporaiy  aUowance  is  for  the  wife,  and  not  for  officers  and  witnesses.  They 
must  look  to  hex.  It  is  given  so  she  can  meet  expenses."  Awards  are  property 
which  is  protected  by  "due  process  of  law,*'*  but  a  prospective  recovery  of  aliiaony 
is  not  assignable.  It  is  personal  to  the  wife.*  A  permanent  award  bars  dower  in 
Georgia,^"  Temporary  allowances  do  not  necessarily  supersede  separation  agree- 
ments,^^ but  if  there  is  an  allowance  for  alimony  besides  counsel  fees,  an  attorney 
in  possession  of  the  alimony  cannot  pay  out  of  it  disbursements." 

§  2.  Jurisdiction  and  power  to  aicard. — Jurisdiction  of  the  husband's  per- 
son must  be  had;  therefore  his  share  in  an  estate  cannot  be  reached,  though  the 
executor  has  been  enjoined  from  paying  it  over.^' 

A  non-resident  wife  who  appears,  may  have  an  allowance  on  her  cross-com- 
plaint.^* 

A  transfer  or  suspension  of  jurisdiction  may,  but  does  not  always,  result  from 
taking  the  case  up  for  review  ;^^  thus  the  granting  of  temporary  alimony  is  not  a 
'T^medial  writ,''  which  is  'Necessary  or  proper'  to  the  appellate  jurisdiction  of  a 
supreme  court  under  laws  which  leave  the  case  still  pending  in  the  lower  court 
after  appeal^'  If  the  order  for  alimony  and  counsel  fees  is  appealed,  the  appel- 
late court  usually  has  power  to  make  a  proper  allowance.^^ 

Collateral  relief  is  proper;  e.  g.,  on  claims  of  creditors  against  whom  the 
plaintiS  procured  a  custodianship  of  defendant's  property,^*  or  on  proper  pleadings 
to  determine  what,  if  any,  interest  the  husband  has  iu  land  standing  ia  a  third 
party's  name,  and  to  award  it  to  the  wife.^® 

§  3.  Stoge  or  condiiion  of  the  divorce  proceeding. — The  divorce  action  is 
not  "pending"  until  process  be  served.***  An  award  must  be  made  in  the  divorce 
decree,  or  else  in  terms  reserved  for  a  future  time.-^     An  allowance  pending  appeal 


46  Law.  Ed.  1121:  Chin  Ting  v.  r.  S.  1S6  U.  S. 
202.  46  Law.  Ed.  11!5. 

1.     Ir:    re    Talruji    TamashLita    (Wash..)     70 
Pac,  4S2. 

a.     Ex  parte  Johnson,  79  Miss.  637. 

In  re  Tai-.::i  TaisasMta.  (Wash.)  70  Pac 


3. 
4S2. 

4. 
S. 


Costs  In  divorce,  see  Divorce:  Costs. 

Imprlsonmeat  for  debt — Brorik  v.  State 
(Fla.)  31  So.  24S:  In  re  Cave.  25  VTash.  213. 
66  Pac  425:  Stste  v.  Cook.  65  Ohio  St.  556; 
bankruptcy — Welty  v.  We'.ty.  S5  111.  App.  141. 

6.  McFaddln  v.  McFaddln,  134  Ala.  837. 
See,  also,  post,  J  7. 

7.  Lynch  v.  Lynch.  ??  111.  App.  454;  In- 
cludes costs,  fees  and  e^irer.ses — Gundry  v. 
Gundry.  11  OkL  423.  6S  Pac.  c??. 

5.  Cannot  he  s-.:b:ected  retrospectively  to 
red"ction  by  rsociScation — Li— Inrston  v.  Uv- 
Inrs'-fn.  T4  App.  Div.   (N.  T.I   251. 

6.  Also  opriosed  to  public  policy — Lynde 
T.  Lynde   (N.  J.  Ch.'>    50  Atl.  63S. 

10.  Civ.  Code.  S  2742 — Harris  v.  Davis,  115 
Ga.  9»0. 


11.  Chamberlain  v.  Cuming,  37  Misc  (V 
T.)   815. 

12.  In  re  BoUes.  75  N.  T.  Stipp.  530. 

la.  Published  service  insufficient — Smith 
V.  Smith.  74  Vt-  20;  Larson  v.  Larson  (Miss.) 
33  So.   717. 

14.  Fisk  V.  Fisk.  24  Utah.  333.  67  Pac 
1054. 

15.  See  Appeal  and  Review  for  an  extend- 
ed discussion. 

16.  Code  Civ.  Proc.  f§  1795,  1?30;  Civ.  Code. 
?  191;  Const,  art.  S.  §§2.  3.  11 — Bordeaux  v. 
Bordeaux.  26  Mont.  533.  69  Pac.  103. 

17.  X.  T.  Appellate  division  -w-lll  do  so — 
Haddock  v.  Haddock.  75  App.  Div.  (N.  T.) 
565. 

18.  Bradley  v.  Ramsev  (Tex.  Civ.  App.)  66 
S.  'W.  1112. 

19.  Van  Vleet  v.  De  TVitt,  200  ILL  153. 

30.  Civ.  Code.  |  137.  construed,  with  Code 
Civ.  Proc.  5  350 — Baker  v.  Baker,  136  CaL 
302.  68  Pac  971. 

21.  Comp.  Laws.  ?  8641 — Moross  v.  Moross 
(Mich.)   87  X.  W.  1035. 


ALIMONY. 


71 


for  defense  on  appeal,  is  not  premature.22      It  may  be  awarded  to  defend  an  appeal 
from  a  permanent  award.^' 

§  4.  Reasons  for  or  against.  Provisional  allowances. — Bad  faith  in  suing,  as 
where  a  former  action  was  unsuccessful,  in  which  all  the  facts  now  alleged  might 
have  been  proved,^*  or  when  the  avowed  sole  motive  is  to  adjust  property  rights,-'* 
defeats  the  application.  It  is  error  to  refuse  counsel  fees  and  alimony  when  the 
wife  is  poor  and  the  husband  is  able  to  provide  them.^^  Ability  of  the  husband 
should  appear;  hence,  an  order  for  suit  money  on  his  appeal  was  refused  when  it 
seemed  probably  futile.^^ 

If  the  parties  had  made  a  separation  agreement  providing  support,  temporary 
allowance  will  not  be  made^^  but  it  is  no  obstacle  that  the  husband  is  papng  and 
willing  to  pay  all  bills  contracted  for  the  wife.^®  It  may  be  granted  though  the 
validity  of  the  marriage  be  assailed.'**  In  Kentucky  the  husband  may  be  required 
to  pay  a  reasonable  fee  to  the  wife's  attorney,  though  there  be  a  dismissal  by  agree- 
ment.'^ 

Permanent  allowances. — Ordinarily  the  guilty  forfeits  the  right  f^  but  by  way 
of  adjusting  property  rights  alimony  may  be  awarded  to  such  party,''  and  the  wife 
for  whose  desertion  a  divorce  was  given  may  have  alimony,  the  husband  having 
married  her  solely  to  escape  a  prosecution.'^ 

In  the  absence  of  contrary  reasons  permanent  alimony  may  be  refused  to  a 
woman  in  good  health,  of  middle  age  and  self  supporting. "* 

Undue  delay  may  defeat  the  right  to  file  an  original  bill  for  alimony  after 
divorce,  even  where  there  was  fraud."  In  Louisiana  it  is  equivalent  to  leaving 
the  husband's  domicile  if,  on  opposing  his  action  for  divorce  after  a  separation,  she 
fails  to  procure  the  assignment  of  a  domicile.'^ 

A  foreign  divorce  on  published  service  bars  alimony.'* 

Support  of  cliild. — If  divorce  be  given  the  wife  there  should  be  an  allowance 
for  a  child  ;'^  such  an  allowance,  if  not  a  lien,  will  cease  with  the  death  of  the 
husband.*" 

§  5.  Amount,  character  and  duration. — The  amount  is  discretionary.*^  Coun- 
sel fees  should  be  fixed  with  reference  to  the  husband's  ability  and  the  character 
of  the  services,*^  or  by  what  appears  from  the  evidence  a  reasonable  fee.*'     Gen- 


22.  Kurd's  Rev.  St.,  c.  40,  5  15,  allows 
granting  of  allowance  "on"  appeal — ^Miles  v. 
Miles,    102    111.   App.    130. 

23.  Haddock  v.  Haddock,  75  App.  Div.  (N. 
Y.)  565. 

24.  The  abandonment  had  been  found  Jus- 
tified and  the  second  action  was  for  cruelty — 
Deisler  v.   Deisler,   65   App.   Div.    (N.  T.)    208. 

25.  Property  owned  by  the  community  in 
another  state — Bradford  v.  Bradford,  80  Miss. 
467. 

26.  Action  by  husband  for  absolute  di- 
vorce— Hunter  v.  Hunter  (Sup.)  79  N.  T. 
Supp.  618. 

27.  He  was  injured,  swore  that  he  was 
unable  to  pay  and  previous  attempts  to 
make  him  do  so  had  failed — Bachelor  v. 
Bachelor  (Wash.)  70  Pac.  491. 

28.  Grube  v.  Grube,  65  App.  Div.  (N.  T.) 
239. 

29.  Civ.  Code,  §  137  gives  allowance  "nec- 
essary" for  support — Anderson  v.  Anderson, 
137  Cal.   225,  69  Pac.  1061. 

30.  Eickhoff  V.  Elckhoff,  29  Colo.  295,  68 
Pac.  237. 

~31.     Ky.  St.,  §  900— Powell  v.  Liny,  24  Ky. 
Law  R.  193. 


32.  Rev.  St.  1899,  §  2929 — Motley  v.  Motley, 
93  Mo.  App.  473.  The  husband  will  not  be 
made  to  release  his  marital  rights  in  the 
erring  wife's  property  or  to  pay  her  alimony 
— Becklenberg  v.  Becklenberg,  102  111.  App. 
504. 

33.  Code,  §  3180 — McDonald  v.  McDonald 
(Iowa)    90  N.   W.   603. 

34.  Alderson  v.  Alderson's  Guardian,  24 
Ky.  Law  R.  595. 

35.  Abele  V.  Abele,  62  N.  J.  Eq.  644. 

36.  12  years;  fraudulent  conveyance  to 
defeat  alimony — Moross  v.  Moross  (Mich.)  87 
N.  W.  1035. 

37.  Ellerbusch   v.   Kogel,    108    La»   51. 

38.  Eldred  v.  Eldred,  62  Neb.   613. 

39.  See  Divorce  Act,  §  23 — Abele  v.  Abele, 
62  N.  J.   Eq.   644. 

40.  Schultze  V.  Schultze  (Tex.  Civ.  App.) 
66  S.  W.  56. 

41.  Breedlove  v.  Breedlove.  27  Ind.  App. 
560.  Code,  §  1291  reads  as  "appears  *  *  * 
just  and  proper" —Moore  v.  Moore,  130  N.  C. 
'33. 

42.  Powell  r.  Lilly,  24  Ky.  Law  R.  193. 

43.  Schneider  v.  Kohn,  24  Ky.  Law  R.  924. 


72 


ALIMONY. 


erally,  past  services  are  not  included.**  An  award  equal  to  tte  whole  salable  valne 
of  his  personalty,  and  for  counsel  fees  besides,  is  excessive.*^ 

Support  of  children  may  be  provided  pendente  lite,  though  counsel  fees  and 
alimony  be  denied  the  wife.*® 

Permanent  awards;  division  of  property. — A  money  award  may  be  had  under 
the  Washington  statute,  which  sanctions  a  just  and  equitable  disposition  of  prop- 
erty of  the  parties  in  view  of  their  future.*^  The  fact  that  plaintiff  is  a  childless 
second  wife  will  not  affect  the  amount.*®  The  Wisconsin  statute  authorizing  a 
division  of  the  husband's  estate  and  that  of  the  wife  derived  from  him,  does  not 
admit  of  a  division  of  the  husband's  alone,  letting  that  which  he  gave  her  stand.** 
Giving  all  the  community  property  to  the  wife  offends  a  law  against  divesting  title 
to  land.  A  half  should  be  given  in  fee,  and  a  life  estate  in  the  other.^°  Under  a 
statute  authorizing  only  support  on  a  limited  divorce,  it  is  improper  to  decree  the 
extinguishment  of  the  wife's  marital  rights  in  the  husband's  estate,  setting  out 
in  its  stead  a  sum  to  provide  her  support  as  long  as  she  lives.^^ 

§  6.  Procedure  and  practice. — Questions  of  pleading  and  practice  in  divorce 
are  always  involved  and  should  be  investigated.^^ 

Temporary  allowances. — The  motion  should  be  in  the  name  of  the  wife,  and 
not  of  the  attorney.^^  Omission  of  notice  does  not  make  an  application  lack  due 
process  of  law,^*  but  at  least  it  is  necessary  if  defendant  has  not  been  served.^' 
Continuing  the  application  does  not  require  a  new  notice.^®  In  some  jurisdictions  it 
may  be  heard  outside  the  coiinty,  anwhere  within  the  district.^''  Counter  affi- 
davits should  be  allowed.^^     Affidavits  tending  to  disprove  a  very  recent  common- 


44.  Lynch  v.  Lynch.  99  111.  App.  454.  Un- 
der a  statute  (Code  Civ.  Proc,  §  1769)  provid- 
ing for  an  allo'wance  "to  carry  on"  the  ac- 
tion past  services  are  not  reckoned — Poillon 
V.  Poillon.   75  App.  Div.    (N.  T.)    536. 

45.  $300 — Baker  v.  Baker,  136  Cal.  302,  6S 
Pac.  971:  $500  fees  not  excessive  to  wife 
worth  $1,900  clear — De  Ruiter  v.  De   Ruiter. 

28  Ind.  App.  9.  $150  additional  to  a  like  sum 
for  counsel's  services  on  a  former  trial  which 
lasted  a  week  was  held  not  excessive;  the 
wife,  who  was  poor,  having  already  paid 
$100  expenses  and  gone  into  debt  $50 — Schus- 
ter V.  Schuster,  84  Minn.  403;  $5  a  week  and 
$100  for  counsel  proper  where  defendant 
earned  $100  per  month  and  had  received  $4,- 
000  advances  from  plaintiif  and  her  father — 
Mayer  v.  Mayer  (N.  J.  Ch.)  49  Atl.  1078:  $40 
Inadequate  where  necessary  depositions  cost 
$60  and  wife  lives  abroad — Cairnes  v.  Cairnes. 

29  Colo.  260,  68  Pac.  233;  $50  a  month.  $250 
fees.  $25  suit  money  not  excessive  to  indigent 
wife  against  husband  of  wealth — Eickhoff  v. 
Eickhoff,  29  Colo.  295.  68  Pac.  237;  $4,000 
reasonable  where  husband  was  ■worth  over 
$80,000  and  suit  -was  expensive — Moore  v. 
Moore.  130  X.  C.  333.  $1,500  to  a  husband  with 
a  pension  of  $360  was  reduced  to  $750  against 
a  wife  who  had  land  worth  $4,400  clear  and 
producing  $250  income — McDonald  v.  McDon- 
ald (Iowa)  90  N.  TV.  603.  in  which  case  the 
appeal  -was  from  alimony  only  and  the  evi- 
dence on  the  divorce  was  not  before  the  re- 
viewing court. 

46.  She  did  not  sue  in  good  faith — Deisler 
V.  Deisler,  65  App.  Div.   (N.  T.)   208. 

47.  2  Ball.  Codes  &  Stat.,  §  5723 — In  re 
Cave,  26  TVash.  213.  66  Pac.  425. 

48.  $4,000  not  excessive  against  defendant 
with  $20,000  realty — De  Ruiter  v.  De  Ruiter. 
28  Ind.  App.  9;  $600  not  excessive  against 
one  who  had  $1,500  in  bank  just  before  suit 


but  who  filed  affidavits  against  temporary 
allowance  professing  to  have  only  $800  real 
and  personal  and  no  bank  account — Wagon- 
er V.  TVagoner.  128  Mich.  635;  $20  a  month 
sustained  against  husband  worth  $9,000  with 
good  income — Brandt  v.  Brandt,  40  Or.  477, 
67  Pac.  508. 

49.  Rev.  St..  §  2364.  she  received  $1,187 
out  of  his  $3,500  while  she  had  57  acres  from 
him  producing  $1,500  per  year — Martin  v. 
Martin.  112  T\'is.  314;  home  farm  given  to 
wife  -whose  father  furnished  money  to  buy 
it,  but  costs,  support  of  children  and  $75  per 
year  for  husband  •was  charged  on  it:  Casey  v. 
Casey  (Iowa)  88  N.  "W.  937;  seven-twelfths 
of  community  to  a  successful  spouse  in  cruel- 
ty case  upheld — Gorman  v.  Gorman,  134  CaL 
378,   66  Pac.   313. 

50.  Rev.  St.,  art.  2980 — Long  v.  Long  (Tex. 
Civ.  App.)   69  S.  W.  428. 

51.  Comp.  Laws.  §  S654 — Wagner  v.  Wag- 
ner (Mich.)   93  N.  TV.  8S9. 

52.  Divorce.  A  wife's  failure  to  negative 
in  her  complaint  that  she  -was  at  fault  for 
the  separation  may  be  cured  if  the  husband 
denies  that  he  -was  at  fault — Boreing  v.  Bore- 
ing    (App.)    24  Ky.   Law   R.    12S8. 

53.  Lynch  v.  Lynch,   99  111.   App.    454. 

54.  Gundry  v.  Gundry,  11  Okl.  423,  68  Pac. 
509. 

55.  Baker  v.  Baker,  136  Cal.  302,  68  Pac. 
P71.  In  Oklahoma  it  may  be  awarded  in  va- 
cation without  notice — Gundry  v.  Gundry.  11 
Okl.  423.  68  Pac.  509.  In  North  Carolina. 
Code.  §  1291.  requires  it  only  on  .application 
out   of  term — Moore  v.  Moore.   130  N.  C.   333. 

56.  Moore  v.  Moore.  130  X.  C.   333. 

57.  Code.  §  1291 — Moore  v.  Moore.  130  N. 
C.  333.  A  motion  to  reduce  temporary  ali- 
mony is  ancillary  and  may  be  heard  in  an- 
other county — Moore  v.  Moore.  131  N.  C.  371. 

58.  When  the  moving  party  is  allowed  to 


ALIMONY. 


73 


law  marriage,  as  alleged,  should  be  received,^'  beside  which  oral  testimony  may  be 
heard.^°  If  the  misconduct  be  denied,  and  the  wife  charged  with  the  fault,  and 
the  husband's  affidavits  be  unopposed,  it  will  be  refused;®^  but  her  denial  will  over- 
come counter  charges  of  adultery,  unless  her  success  seems  improbable.''^  If  a 
verified  answer  be  not  filed  as  such,  but  merely  received  as  an  affidavit,  its  negations 
of  the  fact  of  a  marriage  will  still  leave  the  allegations  of  that  fact  stand  as  ad- 
mitted.®* A  wife  who  sues  for  separation  and  support  will  not  be  relegated  to  her 
statutory  remedy  for  support,  if  the  affidavits  make  a  case  for  alimony  to  enable 
her  to  sue.®*  After  a  motion  to  reduce  a  temporary  allowance  is  denied,  it  cannot 
be  renewed  until  circumstances  change  and  the  applicant  presents  a  receipt  for  such 
a  sum  as  would  be  proper  under  such  new  circumstances. ®° 

Permanent  aivard  may  be  made  on  a  cross-complaint.®®  If  a  complaint  avers 
facts  for  the  purpose  of  procuring  a  custodianship,  as  against  creditors,  they  may 
respond  by  pleas  setting  up  their  rights.®^ 

§  7.  Decree,  enforcement  and  discharge. — The  decree  of  divorce  may  reserve 
the  control  of  collection  of  alimony  and  the  amount.®*  The  order  must  run  to  the 
wife.®^  When  alimony  passes  into  judgment  it  becomes  a  debt  fixed  in  amount,'" 
but  a  decree  for  payment  of  monthly  siuns  until  a  certain  amount  shall  be  paid  "in 
full  for  alimony,"  is  not  a  mere  money  decree.''^  If  the  decree  for  alimony  be  by 
consent,  the  subsequent  actions  of  parties  in  relation  to  it  may  be  regarded  in  con- 
struing the  award.'^^  A  money  award  in  addition  to  household  furniture,  and  con- 
firming each  one's  title  to  his  own  land,  is  not  a  decree  for  a  division  in  addition 
to  alimony.'''  Payments  made  pending  appeal  and  stay  of  an  award  will  be  cred- 
ited on  the  decree  as  affirmed."*  A  bond  for  alimony  under  the  Missouri  act  is  not 
penal,  so  that  judgment  on  it  stands  to  secure  future  breaches.''^ 

Orders  for  alimony  are  usually  appealable.''®  The  decree  survives  the  death 
of  both  parties,  pending  appeal.''^ 

A  foreign  award  is  presumptively  valid,  and  may  be  enforced.'*  A  foreign  de- 
cree giving  a  guilty  wife  an  allowance  in  pursuance  of  a  stipulation  that  she  should 
not  oppose  the  divorce,  is  not  collaterally  assailable  as  against  the  wife  suing  for 
such  support,  though  the  agreement  was  void ;  such  provision  is  a  judgment  of  a  com- 
petent court,  and  conclusive  beyond  the  power  of  the  foreign  court  to  modify,  not 
being  "alimony  against  an  offending  husband,"  which  alone  the  foreign  statutes  au- 
thorize such  court  to  grant  or  to  modify.''® 

Vacating  or  modifying;  discharge. — The  court  has  general  power  to  modify  its 


file  afladavits  "in  reply"  to  the  other's  but 
really  to  allow  proof  de  novo  of  her  need 
and  the  husband's  ability;  the  husband  should 
be  allowed  to  file  further  counter  affidavits 
or  the  "replying"  ones  should  be  stricken — 
Poillon  V.   Poillon,   75   App.   Div.    (N.   Y.)    536. 

59.  Roberts   v.    Roberts,    114   Ga.    590. 

60.  Stewart  v.  Stewart,  28  Ind.  App.  378. 

61.  Williams  v.   Williams,    114   Ga.   772. 

62.  Glaser  v.   Glaser,   36  Misc.    (N.  T.)    231. 

63.  It  set  forth  a  "pretended"  marriage — 
Eickhoff  v.  EickhofC.  29  Colo.  295,  68  Pac.  237. 

64.  Statutory  remedy  is  a  quasi  criminal 
proceeding  in  police  court — Miers  v.  Miers,  35 
Misc.  (N.  Y.)  476. 

65.  Moore  v.  Moore,  131  N.  C.  371. 

66.  Fisk  V.  Pisk,  24  Utah,  333.  67  Pac.  1064. 

67.  Bradley  v.  Ramsey  (Tex.  Civ.  App.) 
65  S.  W.   1112. 

68.  Jones  v.   Jones,    131  Ala.   443. 

69.  Not  to  attorneys — Lynch  v.  Lynch,  99 
111.   App.   454.    Kurd's    Rev.   St.,    c.    40.   §  15— 


Miles  V.   Miles,   102  111.   App.   130;   Werres  v 
Werres,  102  111.  App.  360. 

70.  Coffman  v.  Finney,  65  Ohio  St.  61,  55 
L.  R.  A.  794,  see,  also,  ante,  §  1. 

71.  Welty  V.  Welty,  195  111.  335. 

72.  Decree  Is  also  a  contract — Wickes  v. 
Wickes.    98    111.    App.    156. 

73.  Palica  v.  Palica,  114  Wis.  236. 

74.  Haddock  v.  Haddock,  75  App.  Div. 
(N.  Y.)   565. 

75.  Rev.  St.  1899.  §§  468  et  seq. — Burnside 
v.   Wand    (Mo.)    71   S.  W.    337. 

76.  See  Appeal  and  Review,  §  4. 

77.  Coffman  v.  Finney,  65  Ohio  St.  61,  55 
L.  R.  A.  794. 

78.  Land  held  in  another's  name  was  sub- 
jected— McFaddin  v.  McFaddin,  134  Ala.   337. 

79.  A  decree  was  granted  in  North  Dakota 
and  wife  sued  in  New  York  to  recover  upon 
it.  France  v.  Prance,  38  Misc.  (N.  Y.)  459, 
affirming  79  N.  Y.  Supp.  579. 


74 


ALIMONY. 


order  or  judgment  for  alimony.^"  An  order  granted  after  illegally  refusing  a 
change  of  venue,  will  be  set  aside.*^  When  circumstances  have  changed  it  may  be 
reduced"  if  no  pa}-ments  are  in  arrear,^^  or  discharged,  provided  that  the  award  be 
for  support  and  not  as  compensation.**  Inability  to  pay  must  be  more  than  bur- 
densome. It  must  be  enough  to  excuse  pavTnent.^^  No  relief  will  be  granted  to 
one  who  is  in  contempt,  until  he  submits  to  the  jurisdiction  of  the  court.*®  Adul- 
tery by  a  wife  divorced  from  bed  and  board  will  warrant  a  discharge  of  the  award.^' 
If  the  support  of  children  be  not  fixed,  the  decree  may  as  to  that  be  modified  without 
a  reservation  of  the  question.**  Provision  may  be  made  for  a  child  born  after 
divorce.*® 

In  general  the  procedure,  unless  prescribed,  should  be  that  for  vacating  or 
modifying  the  divorce  decree,®"  or  any  ordinary  decree  or  judgment.®^  A  motion 
for  an  increase  should  not  combine  support  of  wife  and  support  of  children,  which 
should  in  the  decree  be  separately  awarded.®-  The  inquiry  on  such  an  application 
will  be  whether  circumstances  have  been,  according  to  equitable  principles,  changed.®" 
Under  the  Illinois  laws  it  can  be  done  after  term.®*  In  Minnesota  specific  findings 
of  fact  need  not  be  made  on  such  a  motion.®^ 

Bankruptcy  proceedings  do  not  discharge  a  decree.®® 

Attachment  of  the  person  will  lie  for  non-pa^Tiient,  the  proceeding  not  being 
an  "imprisonment  for  debt,"®^  but  the  husband  must  be  able  to  pay.®*  The  concur- 
rence of  a  remedy  at  law  on  notes  given  for  the  sum  awarded,®®  or  excessiveness  of 
the  award  is  no  defense  to  contempt  ■}  poverty  is.^  There  is  no  contempt  in  failing 
to  pay  after  a  reconciliation.^  Contempt  should  be  brought  in  a  court  to  which  a 
decree  is  sent  for  execution,*  and  ability  to  pay  need  not  be  alleged.'  If  he  have 
money  in  possession  available  to  pay  he  may  be  imprisoned  at  once,  since  the  con- 
tempt is  in  refusal  to  do  an  act  which  he  "is  able  to  do."®  An  order  to  show  cause 
must,  under  the  New  York  statutes,  be  served  on  the  party  and  not  on  his  attorney.'^ 
A  contempt  will  not  be  enforced  by  refusing  permission  to  defendant  to  plead.* 


80.  Gen.  St.  1894,  5  53S6 — Barbaras  v.  Bar- 
baras (Mlnn.>   92  N.  W.  5  22. 

81.  People    V.    District    Court     (Colo.)     69 
Pac.  B97. 

82.  Depreciation    of   husband's   property — ■ 
Barbaras   v.   Barbaras    (Minn.)    92  N.  W.   522. 

S3.     "Wife   remarried    and    not    in    need,    all 
children    but    one    self-supporting-,    husband 
poor — cut    doTT-n    to    support    the    one    child — 
Kiralfy  v.  Kiralfy.   36  Misc.   (N.  Y.)    407.    In-  : 
ability    to    care    for    child    suffices — Tobin    v.  ■ 
Tobln    (Ind.   App.)    64   N.   E.    624.  | 

84.  Installments  accruing  after  remar-  ' 
riage  of  ■wife  and  all  further  payments  may  ' 
be  discharged  by  court;  see  statute — Brandt  1 
V.  Brandt.  40  Or.  477,  67  Pac.  SOS.  ! 

85.  Palica  v.  Palica,  114  Wis.  236.  | 

86.  He   fled    from    jurisdiction    and    before  I 
returning  asked  for  reduction  of  amount  and 
vacation  of  contempt  order — Sibley  v.  Sibley,  | 
66  App.   Div.    (N.  Y.)   552. 

87.  Cariens  v.  Carlens,  50  W.  Va,  113,  55  L. 
R.  A.  930. 

88.  Tobln   V.    Tobin    (Ind.    App.)    64    >?.   E. 
424;  Miles  v.  Miles   (Kan.)  70  Pac.   631. 

89.  Rev.  St.  1899.  §  2926 — Shannon  v.  Shan- 
non  (Mo.  App.)   71  S.  TV.  104. 

90.  Divorce. 

91.  Equity;  Judgments. 

92.  Rev.  St.  1899.  §  2926 — Meyers  v.  Mey- 
ers. 91  Mo.  App.  151. 

93.  Warren  v.  Warren.  101  111.  App.  308; 
Tobin  V.  Tobin  (Ind.  App.)    64  X.  E.  624. 


94.  2  Starr  &  C,  c.  40,  §  18 — Welty  v.  Wel- 
ty.  195  111.  335. 

95.  Barbaras  v.  Barbaras  (Minn.)  92  N.  W. 
522. 

96.  Welty  v.  Welty,  195  HI.  335. 

97.  Rev.  St.  §  5640 — State  v.  Cook,  66  Ohio 
St.  566;  In  re  Cave,  26  Wash,  213,  66  Pac. 
425;  see,  also,  Bronk  v.  State  (Fla.)  31  So. 
248;  evidence  of  willful  disobedience. — de- 
parture from  state  having  disposed  of  prop- 
erty, avo^wed  Intention  not  to  pay  alimony, 
and  proof  of  earnings — Deen  v.  Bloomer.  191 
111.  416;  commitment  held  proper — Baker  v. 
Baker  (Ga.)    43  S.  E.   46. 

98.  Attachment  is  incident  to  chancery 
practice  adopted  in  divorce;  see  construction 
of  statutes — Welty  v.   "U'elty,   195   111.   335. 

99.  Bonney  v.  Bonney,  98  111.  App.  129. 

1.  Should  have  sought  a  modification — 
Deen  v.    Bloomer,    191    111.    416. 

2.  "Wester  v.   Martin.    115   Ga.    776. 

3.  Dillon  V.  Shiawassee  Circuit  Judge 
(Mich.)    91  N.  W.  1029. 

4.  Sent  from  Circuit  to  Common  Pleas — 
State  V.  Cook.  66  Ohio  St.  566. 

5.  The  decree  imports  it — State  v.  Cook, 
66  Ohio  St.  566. 

6.  2  Ball.  Codes  &  St.,  §  5S08 — ^In  re  Cave, 
26  Wash.  213,   66  Pac.  425. 

7.  Goldie  v.  Goldie,  77  App.  Dlv.  (X.  Y.) 
12. 

8.  Bachelor  v.  Bachelor  (Wash.)  71  Pac 
193. 


ALIMONY. 


75 


Execution  should  not  issue  after  the  husband's  death,  unless  the  award  was  a 
lien;  but  a  claim  should  be  proved  against  his  estate.®  A  petition  for  further  exe- 
cution should  show  a  change  in  the  husband's  condition,  when  the  decree  reserves 
the  right  to  such  time  as  petitioner  can  show  a  change.^"  Execution  must  be  had 
and  exhausted  before  resorting  to  supplementary  proceedings.^^ 

Subjection  of  property. — Conveyances  in  anticipation  of  an  award  may  be  as- 
sailed by  the  wife  as  fraudulent,  even  before  judgment  or  award  of  alimony;  and 
the  land  may  be  judicially  sold,^^  even  though  by  fraud  the  wife  was  induced  to 
join;"  but  not  where  they  preceded  the  marriage."  The  grantee  may  have  been 
innocent.^'  A  conveyance  to  children  is  voidable  only  so  far  as  to  let  in  the  wife's 
rights.^*  In  order  to  enforce  a  decree  against  property,  there  must  have  been  an 
award  founded  on  jurisdiction  of  the  person.^^  The  wife  may,  if  the  husband  ab- 
sents himself,  subject  his  property  in  equity  to  payment  of  the  temporary  award.^' 
Periodical  amounts  made  a  lien  on  land,  may,  if  not  paid,  be  commuted  in  a  gross 
sum,  and  the  lien  foreclosed.^*  In  Nebraska  an  alimony  judgment  is  a  lien  on 
homestead.^**  Unless  saved  by  original  decree  or  by  agreement,  the  wife  has  no  right 
to  attorney's  fee  as  cost  of  enforcing  a  lien  for  the  alimony.^^ 

§  8.  Suits  for  annulment  and  actions  for  separate  maintenance. — N'o  allow- 
ance will  be  given  on  suit  for  annulment,  if  both  parties  admit  the  marriage  to  be 
void.^^  In  some  jurisdictions  separate  maintenance  or  alimony  may  be  given  with- 
out divorce.^^  The  parties  must  be  residents  of  the  state  f*  and  in  Louisiana  the 
wife  must  not  have  unwarrantably  left  the  matrimonial  domicile.^'^  The  cause 
for  the  separation  is  immaterial  under  the  North  Carolina  law.^^  To  warrant  an 
allowance  abandonment  need  not,  in  Washington,  continue  for  any  fixed  time,  but 
support  must  be  really  withdrawn.^'^  In  that  state  the  statutory  remedy  to  deter- 
mine mutual  rights  in  property  may  be  administered  in  an  action  for  separate  main- 
tenance.'^*    Eefusal  to  receive  at  a  time  certain  and  ever  since,  alleges  a  living- 


9.  Award  for  child's  support:  Schultze  v. 
Schultze    (Tex.   Civ.   App.)    66   S.   W.   56. 

10.  Jones  V.  Jones,  131  Ala.  443. 

11.  Ostrom  V.  Ostrom,  38  Misc.  (N.  T.) 
232.  In  South  Dakota,  the  court  may  re- 
quire payment  of  a  fixed  sum  and  make  it 
a  lien  on  the  husband's  homestead  under 
Comp.  Laws,  §§  2584,  2585,  which  allows  the 
court  to  g-rant  alimony,  modify  it  from  time 
to  time,  and  assign  the  homestead  to  the  in- 
nocent party;  and  since  a  judgment  debtor 
Is  given  a  year  to  redeem,  »«e  cannot  be  com- 
pelled to  Immediately  surrender  possession — 
Harding  v.  Harding  (S.  D.)   92  N.  "W.   1080. 

12.  Evidence  sufficient  that  there  was 
fraud  in  a  conveyance  to  a  daughter,  accom- 
panied by  artifice  during  separation  and  leav- 
ing insufficient  available  assets  to  pa-^  the 
award — De  Ruiter  v.  De  Ruiter,  28  Ind.  App. 
9;  averment  of  insufficient  property  to  pay 
alimony  after  fraudulent  conveyances  not 
contradicted  by  allegation  on  information  of 
property  which  he  secretes — De  Ruiter  v.  De 
Ruiter,  28  Ind.  App.  9.  She  is  creditor  from 
time  of  award — McFaddin  v.  McFaddin,  134 
Ala.  337. 

13.  Chittenden  v.  Cnittenden,  12  Ohio  Cir. 
Ct.  R.  526. 

14.  Chittenden  v.  Chittenden,  12  Ohio  CIr. 
Ct.  R.  526. 

15.  Voluntary  transfer — ^McFaddin  v.  Mc- 
Faddin, 134  Ala.  337. 

16.  Tully  V.  Tully,  137  Cal.  60. 

17.  Smith  V.  Smith,  74  Vt.  20. 


18.  Executors  of  his  father  compelled  to 
pay  over  income — McGlynn  v.  McGlynn,  37 
Misc.  (N.  Y.)  12  the  alimony  being  incident 
to  an  action  for  separate  maintenance. 

19.  Trumble  v.  Trumble,  2fi  "Wash.  133,  66 
Pac.  124.  Under  the  South  Dakota  laws,  If 
the  husband  Is  In  default  of  monthly  pay- 
ments a  fixed  sum  may  be  awarded  to  her 
instead  and  enforced  against  his  property — 
Harding  v.  Harding  (S.  D.)   92  N.  W.  1080. 

20.  Fraaman  v.  Fraaman  (Neb.)  90  N.  W. 
245. 

21.  Trumble  v.  Trumble,  26  Wash.  133,  66 
Pac.  124. 

22.  Knott  V.  Knott   (N.   J.  Ch.)    51   Atl.  15. 

23.  In  equity — Pearce  v.  Pearce.  132  Ala. 
221.  $50  at  the  rate  of  $5  a  month  allowed 
against  an  able  bodied  man  earning  wages 
and  possessed  of  property — Dorsey  v.  Dor- 
sey   (Ind.  App.)    64  N.  E.   475. 

24.  Separation  of  property  asked — Carter 
V.  Morris  B.  &  L..  I.  Ass'n,  108  La.  143. 

23.  Rev.  Civ.  Code,  art.  2437— i'Carter  v. 
Morris  B.  &  L.  I.  Ass'n.  108  La.  143. 

26.  Code.  §  1292 — Skittletharpe  v.  Sklttle- 
tharpe,  130  N.  C.   72. 

27.  Desertion  a  month  before,  forbidding 
credit,  and  suggesting  a  divorce  do  not  show 
a  refusal  to  provide,  where  money  was  fur- 
nished— Schonborn  v.  Schonborn,  27  Wash. 
421,  67  Pac.  987. 

28.  Branscheid  v.  Branscheid,  27  Wash. 
368.  67  Pac.  812. 


76 


ALTERATION  OF  INSTRUMENTS. 


apart  at  the  time  of  suit  and  without  plaintiff's  fault,-^  and  refusal  to  live  -with 
the  wife  is  equivalent  to  abandonment.^"  Findings  on  the  question  of  fraud  in 
conveving  property  will  be  rendered  needless,  where,  by  reason  of  a  finding  that 
there  was  no  desertion,  the  right  to  separate  maintenance  to  assail  transfers  fails.'^ 
The  allowance  being  provisional  no  final  judgment  will  be  given,  since  the  re- 
lation may  be  dissolved  by  divorce  or  resumed.^-  Xor  can  monthly  pajTnents  be 
awarded  under  a  statute  merely  requiring  the  husband  to  "secure''  a  support.'' 
An  award  of  alimony,  made  after  appeal  from  the  reversal  of  a  sentence  of  nullity 
against  the  wife,  is  regarded  as  provisional,  and  not  as  an  enforcement  of  the 
judgment  of  reversal  which  was  stayed  by  the  appeal.'*  Grantees  of  the  husband 
pendente'  lite,  with  notice,  are  not  protected." 

ALTERATION  OF  INSTRTJIilCENTS. 

Alteration  of  an  instrument  as  a  criminal  act.^®  or  reformation  by  proper  pro- 
ceedings to  properly  define  the  rights  of  its  parties,'^  do  not  properly  come  within 
this  topic. 

§  1.  Definition,  distinctions,  and  what  constitutes. — Alterations  of  written 
instruments  must  be  material  to  affect  their  validity,  such  as  insertion  of  terms 
not  contemplated  by  the  parties  at  time  of  execution,'*  and  not  mere  inter- 
lineations, erasures  or  alterations  apparent  on  the  instruments.'*  Alterations  by 
mistake  are  not  material,*"  nor  is  an  erasure  material  which  makes  a  description  of 
land  obscure  where  it  is  followed  by  a  definite  and  correct  description.*^  Insertion 
of  a  clause,  omitted  by  negligence  of  the  draughtsman,  by  agreement  of  the  parties 
^ill  not  avoid  the  instrument  as  to  subsequent  creditors  who  attach  the  property.*' 
.An  alteration  made  before  signature  by  the  other  party,  cannot  affect  the  con- 
tract, however  material,  since  he  is  presumed  to  read  the  contract  before  signing.*' 
Signing  a  note  and  its  delivery  to  a  joint  maker  impliedly  authorize  him  to  insert 
the  date  of  actual  negotiation.** 

§  2.  Particular  instruments. — Alteration  of  a  note  by  erasure  of  one  of  sev- 
eral indorsements  without  knowledge  or  consent  of  other  indorsers,*^  or  addition 
of  an  obligor  to  a  note  at  instance  of  the  obligee  and  without  consent  of  other 
obligors.*®  or  of  another  surety  to  a  bond  after  delivery  without  consent  of  the 
other  sureties,*^  or  iusertion  of  name  of  a  bank  at  which  the  note  is  thereby  made 
payable,*^  or  erasure  of  the  name  of  an  attesting  witness  from  a  note  after  deliv- 
ery without  the  maker's  consent  though  the  name  is  re-inserted  in  a  different  place 


29.  Branscheld  v.  Branscheid,  27  "Wash. 
368.    67   Pac.    812. 

30.  Schonborn  v.  Schonborn,  27  Wash.  421, 
67  Pac.  9S7. 

31.  Civ.  Code.  5  172 — Greer  v.  Greer,  135 
Cal.  121.  67  Pac.  20.  In  which  it  was  held 
that  the  finding-  need  not  show  that  the  rea- 
sons for  his  leaving  home  were  sufficient  or 
good. 

32.  Skittletharpe  v.  Sklttletharpe,  130  N. 
C.  72. 

33.  Code,  §  1292 — Sklttletharpe  v.  Skittle- 
tharpe. 140  N.  C.   72. 

34.  Code  Civ.  Proc,  §  1310 — Dl  Lorenzo  v. 
Dl  Lorenzo    (Sup.)  79  N.  Y.  Supp.  566. 

35.  Starr  v.  Kaiser,  41  Or.  170,  68  Pac.  521. 

36.  Forg-ery. 

37.  Reformation   of  Instrument?. 

38.  Entry  of  additional  name  in  mileage 
book  conditioned  to  carry  only  persons 
named  therein — Holden  v.  Rutland  R.  Co., 
73  Vt.  317. 


39.  Alterations  in  deed — Harper  v. 
Reaves.  132  Ala.  625. 

40.  Indorsements  by  mistake  on  note 
■which  are  s-jbsequently  erased — Lau  v. 
Blomberg-  (Xeb.)   91  X.  W.  206. 

41.  Description  of  land  in  special  tax  bill 
— Henlan  v.  Gilliam  (Mo.)  71  S.  W.  163. 

42.  Bryant  v.  Bank,  107  Tenn.  560. 

43.  Building  contract  altered  by  architect 
and  contractor  before  signature — Mockler  ▼. 
St.  Vincent's  Inst..  87  Mo.  App.  473. 

44.  Lance  v.  Calvert.  21  Pa,  Super.  Ct.  102. 

45.  International  Bank  of  St.  Louis  v. 
Parker.   88  Mo.  App.  117. 

46.  M.  Rumley  Co.  v.  Wilcher,  23  Kv.  Law 
R.  1745. 

47.  State  V.  Paxton  (Neb.)  90  N.  W.  983; 
Brown  v.  State.  Id. 

48.  Burns  Rev.  St..  1901.  §§  7515.  7516. 
5517 — Young  v.  Baker  (Ind.  App.)  64  N.  E.  54. 


ALTERATION  OF  INSTRUMENTS. 


11 


on  the  instrument,"  or  insertion  of  "gold"  before  "dollars"  in  a  mortgage  bond 
after  execution  and  delivery,=^°  is  a  material  alteration  which  avoids  the  instrument 
as  to  parties  not  consenting  to  the  change.  Failure  to  name  a  receiving  bank  in 
a  blank  in  a  complete  note  will  not  authorize  its  insertion  by  the  payee  though  the 
blank  is  not  erased;"  however  there  are  cases  holding  that  the  payee  has  implied 
authority  to  fill  a  blank  for  place  of  payment.^^ 

A  contract  to  convey  a  homestead  is  not  altered  by  subsequent  signature  of  the 
wife  whose  signature  was  thought  imnecessary  at  time  of  execution/^  Detach- 
ment of  a  skeleton  note  from  a  contract  of  which  it  is  a  part,  and  filling  its  blanks 
so  as  to  make  it  negotiable  is  a  material  alteration  which  the  signers  are  not  es- 
topped from  asserting  to  avoid  their  liability/*  A  change  of  the  rate  of  interest 
in  a  note  to  conform  to  the  actual  agreement  of  the  parties  will  not  avoid  it/'' 
Interlineation  of  a  provision  for  liability  according  to  front  footage  in  a  contract 
for  street  grading  which  already  provides  for  liability  of  property  owners  accord- 
ing to  interest/®  or  change  of  an  insurance  policy  payable  to  insured's  "estate"  to 
make  it  payable  to  "wife  and  children,"'^  or  indorsement  by  payee  of  a  note  of 
an  agreement  to  take  a  less  rate  of  interest,'*  or  indorsement  of  a  note  whereby 
a  grantee  of  the  equity  under  a  mortgage  security  is  enabled  to  pay  a  less  rate 
of  interest,'*  or  filling  of  skeleton  notes  by  makers  in  whose  hands  they  are  placed, 
in  accordance  with  their  general  purpose,®"  or  interlineation  of  words  "Interest 
at  6  per  cent  on  notes  remaining  over  a  year,"  in  a  contract  of  conditional  sale 
where  such  deferred  payments  are  represented  by  notes,*^  is  not  such  a  material 
alteration  as  will  avoid  the  instrument.  Negotiability  of  a  note  is  not  affected 
by  the  act  of  the  payee  in  filling  the  blank  for  amount,  after  the  maker  has  signed, 
with  figures  less  than  marginal  figures  agreed  on,  and  changing  the  latter  to  agree 
with  the  blank  so  filled.'* 

§  3.  Effect  of  material  alteration;  rights  of  parties. — ^Any  material  alteration 
of  a  written  instrument  after  delivery  avoids  the  instrument  unless  ratified.®' 
Material  alterations  by  a  party  or  with  his  consent  destroy  his  rights  as  against 
those  not  consenting,'*  or  as  against  persons  liable  who  are  not  original  parties  to 
the  instrument,"  but  where  the  contract  is  separable,  the  parts  unaltered  will 
not  be  affected." 

An  unintentional  alteration,  though  material,  will  not  avoid  the  instrument 
if  the  original  terms  can  be  ascertained.'^  A  transfer  of  title  cannot  be  divested 
by  alteration  of  a  deed  fully  executed  and  delivered  with  or  without  the  grantee's 
consent,"  and  interpolation  of  other  names  in  tax  deeds  after  their  execution  will 


Girdner  v.  Gibbons.  91  Mo.  App.  412. 
Foxworthy  v.  Colby    (Neb.)   89  N.  "W. 

Young  V.   Baker    (Ind.   App.)    64   N.  E. 


49. 

50. 

800. 

51. 
54. 

52.  Cason  v.  Bank,  97  Ky.  487;  Redllch  v. 
Doll,  54  N.  T.  234;  Cox  v.  Alexander,  30  Or. 
438,  46  Pac.  794;  Wessell  v.  Glenn,  108  Pa. 
104. 

Epperly  v.  Ferguson   (Iowa)   91  N.  W. 


53. 

816. 
54. 
55. 
56. 


Porter  v.  Hardy.  ION.  D.  651. 
Osborn  v.  Hall  (Ind.)  66  N.  E.  457. 
Young  V.  Borzone,  26  Wash.  4,  66  Pac. 
135.  421. 

57.  Steeley's  Creditors  v.  Steeley,  23  Ky. 
Law    R.   996. 

58.  Reed  v.  Gulp.  63  Kan.  595. 

59.  The  makers  cannot  be  credited  with 
the  reduction — Boutelle  v.  Carpenter  (Mass.) 
65  N.  E.  799. 

60.  Porter  v.  Hardy,  10  N.  D.  551. 


61.  Edward  Thompson  Co.  v.  Baldwin,  62 
Neb.  530. 

63.     Prim  V.  Hammel,  134  Ala.  652. 

63.  Consumers'  Ice  Co.  v.  Jennings  (Va.) 
42  S.  E.  879. 

64.  Porter  v.  Hardy,  10  N.  D.  551. 

65.  Addition  of  obligors  or  sureties  to  a 
note  or  bond  without  consent  o£  other  ob- 
ligors or  sureties,  will  relieve  them — M. 
Rumeley  Co.  v.  Wllcher,  23  Ky.  Law  R.  1745; 
State  V.  Paxton  (Neb.)  90  N.  W.  983;  Brown 
V.  State,  Id. 

66.  Alteration  of  part  of  a  series  of  notes 
will  not  affect  the  remainder,  nor  a  contract 
of  conditional  sale  for  liability  of  which 
they  were  given — Edward  Thompson  Co.  v. 
Baldwin,  62  Neb.  530. 

67.  Civ.  Code  Ga.,  §  3702 — ^Burch  v.  Pope, 
114  Ga.  334. 

68.  Gulf  Red  Cedar  Lumber  Co.  v.  O'Neal, 
131  Ala.  117. 


7c  ALTERATION  OF  INSTRUMENTS. 

not  aSect  the  transfer  of  title  to  persons  properly  named  therein  and  properly 
joined  in  the  tax  snits.®^  Alteration  of  notes  vriH  not  prevent  recovery  where 
the  security  was  not  assailed  and  the  debt  was  unpaid.'"      . 

The  party  who  did  not  participate  in  the  alteration  alone  can  complain  of 
it/^  and,  though  it  may  be  ground  for  rescission  by  him,  he  may  still  enforce 
it  in  its  original  form.'-  A  material  alteration  is  avoidable  to  any  one  boimd 
by  the  instrument  who  did  not  consent,  though  not  a  surety  and  though  the  per- 
son making  the  change  did  not  know  of  such  result.'^  Bona  fide  holders  stand 
in  the  same  position  as  parties  to  the  instrument  and  cannot  enforce  it'*  either 
against  the  maker  or  his  sureties,*'  but  if  the  bona  fide  holder  is  not  a  party  to 
the  alteration,  he  may  enforce  a  negotiable  instrument  in  its  original  form.''^ 

Pleading  and  evidence. — Plaintiff  atttempting  to  enforce  an  instrument  must 
disprove  or  explain  alterations."^  That  an  alteration  is  material  and  apparent  will 
not  relieve  the  party  asking  relief  from  alleging  that  there  was  fraudulent  intent.' - 
"While  it  is  presumed  that  an  alteration  was  made  on  execution  or  before  deliv- 
ery,^" where  it  is  sufficiently  apparent  on  the  face  of  the  instrument  to  arouse  dis- 
trust and  raise  a  necessity  of  explanation,®"  or  where  a  part  restricting  the  lia- 
bility of  one  party  has  been  taken  from  the  contract  by  the  other,®^  the  presump- 
tion will  not  lie,  and  the  time,  manner  and  intent  of  the  alteration  are  questions 
for  the  jury.®*  Unless  an  alteration  is  suspicious,  it  is  unnecessary  to  show  that 
it  was  made  before  execution,®'  but  if  it  is  not  plainly  ascertainable  on  inspection 
of  the  instrument'*  the  party  alleging  the  alteration  must  prove  it.  Where  the 
alteration  is  apparent,  and  plaintiff  claims  benefit  of  it,  he  must  prove  that  it  was 
made  before  signing  and  delivery."  Where  an  instrument  in  evidence  is  not  re- 
ferred to  in  the  pleadings,  evidence  of  its  alteration  may  be  given  without  allega- 
tions of  alteration.*'  An  alteration,  which  makes  an  instrument  appear  to  have 
been  executed  before  it  was  executed,  will  prevent  its  admission  in  evidence,  es- 
pecially, where  the  acknowledgment  was  of  a  date  later  than  the  actual  signing.®" 
To  admit  an  instrument  containing  alterations  and  interlineations,  it  must  be 
proved  that  all  material  changes  were  made  before  execution,®®  though  proof  of 
execution  has  been  made.®* 

69.  Holladay-Klotz  Lind  &  L.   Co.  v.  T.  J.  [      78.     Civ.   Code   Ga.,    §   3702 — Miller   v.   Slade 
Moss  Tie  Co..  S9  Mo.  App.  556.  (Ga.)   43  S.  E.  69. 

70.  Alteration    of  notes    on   piano    secured        79.     Holladay-Klotz  Land  &  L.  Co.  v.  T.  J. 
by    chattel     mortgage — Hoffman    v.     Molloy,  !  Moss  Tie  Co..  S7  Mo.  App.  167. 


91  Mo.  App.   367. 

71.  Creditors  cannot  complain  of  altera- 
tion of  an  lnsv.rance  policy  in  attacking  an 
assignment — Steeley's  Creditors  v.  Steeley,  23 
Ky.  Law  R,  996. 

72.  Lane  v.  Pacific  &  I.  X.  R.  Co.  (Idaho) 
«7  Pac.  656. 

73.  Ball  V.  Beaumont  (Neb.)  92  N,  "W. 
170. 


80.  Holladay-Klotz  Land  &  L  Co.  v.  T.  J. 
Moss  Tie  Co.,  87  Mo.  App.  167. 

81.  Burton   v.    American    Guarantee    Fund 
Mut.  Fire  Ins.  Co..   88  Mo.  App.   392. 

S2.     Holladay-Klotz  Land  .'t  L.  Co.  v.  T.  J. 
Moss  Tie  Co..  87  Mo.  App.  167. 

83.  Rosenbloom  v.  Finch,  37  Misc.   (N.  Y.> 
81S. 

84.  Alteration  In  note  filed  as  claim 
_,  ..^  ^,  -  ^  .r,  .....-,  .  ,  against  estate — Jackson  v.  Dav.  80  Misc.  SOO. 
74.     Alteration    of  note— Bank   of   Hering-    p"  ^jon   cut   off   insurance   policv—Burton   v. 

^°W^^T^r'^    ^^V.i^  'i  ^^''-   ?^-=   T°'^°^    American  Guarantee  Fund  Mut.  Fire  Ins.  Co.. 
V.  Baker  (Ind.  App.)  64  N.  E.  o4;  alteration  of    g(^   ^q     ^pp    392_ 


written  instrument  to  make  it  a  negotiaole 
note — Porter  v.  Hardy,  10  N.  D.  551. 

75.  He  cannot  collect  even  the  original 
amount  of  a  note  the  amount  of  ■which  has 
been  altered — Moss  t.  Maddux,  108  Tenn. 
405. 

re.     Negotiable   Inst.     Law     X.     Y.,   S   205 


So.     Consumers'   Ice   Co.   v.   Jennings    (Va.) 
42   S.   E.    879. 

86.  Coppock  V.  Lampkln,  114  Iowa,  664. 

87.  Died-Long  v.  Stanley,   79  Miss.   298. 

88.  Altered    lease — Landt    v.    McCullough, 
103   111.   App.   668. 

The    rule    applies    to    receipts    for    assess- 


Mutual    Loan   Ass'n   v.    Lesser,    76    App.    Dlv.    ments   on   mutual  benefit  certificate  showins 
(N.  y.)    614.  alterations,   in  an   action  on   the   benefit  cer- 

77.     Removal    of    clause     from     insurance    tincate — Rambousek     v.     Supreme     Council. 
policy — Burton   v.   American   Guaranty   Fund  i  (Iowa)   93  N.  "W.  277. 
Mat  Fire  Ins.  Co.   (Mo.  App.)  70  S.  W.  172.      '      89.     Holladay-Klotz  Land  &  I*  Co.  v.  T    J. 


AMBASSADORS  AND  CONSULS— ANIMALS. 


79 


§  4.  Curing  or  ratifying  alterations. — An  alteration  is  immaterial  where  the 
other  party  has  knowingly  accepted  the  altered  instrument  and  complied  with  its 
terms.®"  Even  material  alterations  may  be  ratified  by  sureties  to  the  instrument 
if  approved  intentionally  with  respect  to  the  particular  alterations/^  or  by  an 
agent  acting  for  his  principal  in  the  transaction.®^  A  party  who  insists  on  per- 
formance of  a  written  contract  after  knowledge  of  its  material  alteration  thereby 
waives  his  right  to  question  its  validity  on  that  groimd.®^ 

AMBASSADORS  AND  CONSULS. 

An  Italian  consul  may,  by  virtue  of  the  most  favored  nation  clause,  admin- 
ister on  estates  of  his  nation's  subjects  who  die  intestate  within  the  consular  dis- 
trict.®* Since  consular  ofiicers  are  given  power  by  congress  to  perform  any  notarial 
function  authorized  by  law  within  the  United  States,  they  may  take  aflSdavits  or 
depositions.®^  A  consul  general's  deputy  may  take  an  acknowledgment.®®  The  fact 
that  a  consul  institutes  a  proceeding  in  which  his  government  is  interested,  and 
in  which  he  uses  his  official  signature  and  title,  sufficiently  shows  his  authority.®^ 

AMICUS  CURIAE. 
A  mother  may  as  amicus  curiae  attack  a  collusive  decree  of  nullity  of  marriage 
of  a  daughter,  though  not  invested  with  a  litigable  interest.®^     A  justice  of  the 
peace  may  consult  an  amicus  curiae.®®     Interested  persons  should  be  notified  and 
heard  on  objections  so  presented.^ 

ANIMALS. 

§  1.  Property  in  animals. — The  owner  of  a  domestic  animal  has  a  property 
right  in  its  carcass  after  death.' 

§  2.  Personal  injuries  inflicted  hy  animals. — One  who  harbors  a  vicious  dog,* 
or  permits  him  to  remain  on  his  premises,^  if  the  premises  are  under  his  control,"  or 
to  run  at  large,'^  or  an  employer  who  permits  an  employee  to  use  a  vicious  dog  in  the 


Moss  Tie  Co.,   87  Mo.  App.  167. 

90.  Change  in  order  for  macliinery  so  as 
to  provide  for  security — J.  I.  Case  Thresh. 
Mach.  Co.  V.  Ebbighausen  (N.  D.)  92  N.  W. 
826. 

Insertion  of  date  In  an  Instrument  already 
signed  by  a  joint  maker  is  ratified  by  his 
notice  of  it  without  objection — Lance  v.  Cal- 
vert, 21  Pa.  Super.  Ct.   102. 

91.  State  V.  Paxton  (Neb.)  90  N,  "W.  983; 
Brown  v.  State,  Id. 

92.  Alteration  in  mortgage  note  executed 
by  husband  and  wife,  charging  rate  of  inter- 
est to  correspond  with  agreed  terms  of  the 
mortgagee's  attorney  and  the  husband  who 
acted  for  his  wife — Nichols  v.  Rosenfeld 
(Mass.)  63  N.  E.  1063;  Palmer  v    Same.  Id. 

93.  Oil  lease  altered  by  lessee  by  inser- 
tion of  names  of  other  parties  interested  in 
royalties — Barnsdall   v.   Boley,    119    Fed.    191. 

94.  Treaty  of  1871  with  Italy,  making  ap- 
plicable, article  9  of  the  Argentine  treaty — 
In  re  Lobrasciano's  estate.  38  Misc.  (N.  Y.) 
415. 

95.  Rev.  St.  V.  S.,  §  1750;  Neb.  Code  Civ. 
Pr.,  §  371  et  seq. — Browne  v.  Palmer  (Neb.) 
82  N.  W.  315. 

96.  Stewart  v.  Linton   (Pa.)   53  Atl.   744. 

97.  Extradition  proceeding — In  re  Grin, 
112  Fed.  790 

98.  Steimer  v.  Stelmer,  37  Misc.  (N.  T.)  26. 
Such  an  one  has  no  appealable  interest — B. 
B.  v.  E.  C.  B.,  28  Barb.  299,  8  Abb.  Pr.  (N.  Y.) 
44. 

99.  Bocock  V.   Cochran,  32  Hun.  521. 

1.  Matter  of  Guernsey,  21  111.  443. 

2.  Law  relating  to  wild  animals  not  In 
captivity     or     domesticated,     see     Fish     and 


Game  Law.  There  are  many  regulations  and 
laws  which  relate  to  the  business  of  slaugh- 
tering animals  or  of  selling  meat  products. 
They  mostly  relate  to  Food  Licenses  or 
Adulteration. 

3.  Campbell  v.  District  of  Columbia,  19 
App.   D.   C.   131. 

4.  Duval  V.  Barnaby,  75  App.  Div.  (N.  Y.) 
154,  11  N.  Y.  Ann.  Cas.  227;  sufficiency  of  In- 
struction on  what  constitutes  harboring  a 
vicious  dog — Trumble  v.  Happy,  114  Iowa, 
624. 

5.  The  property  owner  Is  not  liable  at 
common  law  merely  because  the  injuries 
were  inflicted  while  on  his  premises — Trum- 
ble V.  Happy,  114  Iowa,  624.  Ky.  St.  §  68 
changed  the  common  law  rule;  and  one  who 
entered  to  visit  the  ow^ner  was  held  not  un- 
lawfully on  the  premises — Dillehay  v.  Mick- 
ey, 24  ky.  Law  R.  1220.  Evidence  held  suf- 
ficient to  submit  question  of  defendant's  con- 
trol of  dog  to  jury — Clark  v.  Disbrow,  77 
App.  Div.   (N.  Y.)   647. 

6.  The  dog  not  being  kept  under  his  di- 
rection and  he  not  having  knowledge  of  its 
character,  he  cannot  be  held  liable  where 
the  animal  was  owned  by  a  tenant,  the  prop- 
erty being  used  as  a  stable,  merely  because 
he  received  a  portion  of  the  rents  from 
stalls — La  guttata  v.  Chlsolm,  65  App.  Div. 
(N.   Y.)    326. 

7.  That  a  weak  minded  child  had,  on 
previous  occasions  while  the  dog  was  secur- 
ed, annoyed  it  Is  not  a  defense;  the  injuries 
being  inflicted  while  the  dog  was  at  large 
and  unmolested  by  such  child — Schilling  v. 
Smith,   76   App.   Div.    (N.  Y.)    464. 


80 


ANIMALS. 


course  of  his  cmploTment  is  liable  for  injuries  inflicted  by  it,'  so  also  an  emplovei 
who  furnishes  an  employe  a  vicious  mule/  but  the  relation  of  master  and  servant  is 
not  essential  to  a  recovery  for  injuries  inflicted  by  an  animal  placed  in  the  care  of 
another." 

A  vicious/^  or  mischievous  character/'  and  knowledge  thereof  on  the  part  oi 
the  owner  must  be  shown  to  render  him  liable,^^  though  knowledge  may  be  pre- 
sumed,^* 

Xegligence  may  also  be  presumed.^' 

The  owner  conducting  a  vicious  animal  along  a  street  is  bound  to  exercise  due 
care  to  protect  passers-by  from  injury.^® 

The  plaintiff  has  the  burden  of  proving  liability  of  defendant.^" 

If  the  vicious  character  of  the  dog  were  known  to  the  owner  pimitive  damages 
may  be  recovered.^' 

§  3.  Injuries  to  property  ty  animals  trespassing  or  running  at  hrge. — 
The  owner  of  cattle  is  liable  if  they  trespass  upon  lands  of  another^^  though  the 
land  was  not  marked  or  inclosed,^  but  a  herder  is  held  not  liable/^  where  such  ani- 
mals are  not  allowed  to  run  at  large  and  the  land  is  suiSciently  fenced  against  animals 
pennitted  to  range;--  if  he  wilfully  drives  them  thereon  though  the  right  of  free 
range  exists,,  it  is  a  trespass.-'  It  is  not  a  wilful  trespass  within  penal  laws  if  it  be 
done  under  a  license.^*  The  party  bound  to  erect  a  di^ision  fence  cannot  recover  for 
trespass  committed  by  the  adjoining  owners  cattle.*^ 


8.  "Watchman  of  corporate  property — Chi- 
cago &  A.  R.  Co.  V.  Kuckkuck,  98  IlL  App. 
252;   affirmed,   64  N.   E.    35S. 

9.  The  employer  being  charged  •vrtth  and 
the  employe  not  having  knowledge  of  its 
dangerous  character — East  Jellico  Coal  Co. 
V.  Stewart.   24  Ky.  Law  R.   420. 

10.  If  the  owner  of  a  bull  placed  him  in 
the  care  of  one  ■working  his  farm  on  shares, 
with  knowledge  of  its  vicious  character  but 
without  warning  him,  recovery  may  be  had. 
The  relation  of  master  and  servant  is  not 
essential — Talmage  v.  Mills  (Sup.)  80  N.  Y. 
Supp.  63". 

11.  The  mere  fact  that  the  dog  did  bite 
Is  not  sufficient — Martinez  v.  Bernhard,  106 
La.  368.  55  L.  R,  A.  671.  Evidence  in  action 
to  recover  by  one  kicked  by  a  horse  held 
Insufficient  to  show  vicious  character — East- 
man V.  Scott  (Mass.)  64  X.  E.  96S;  sufficiency 
of  evidence  to  show  vicious  character  of  dog 
and  knowledge  thereof  on  the  part  of  the 
owner — Kippen  v.  Ollasson,  136  CaL  640,  69 
Pac.  293.  Judicial  notice  will  be  taken  of 
the  treacherous  and  vicious  nature  of  a 
mule — Borden  v.  Falk  Co.  (Mo.  App.)  71  S. 
W.   478. 

12.  Crowley  v.  Groonell,  73  Vt.  45,  55  L. 
R.  A.  876. 

13.  That  the  animal  had  once  attacked 
the  owner  is  sufficient  proof  of  knowledge — 
Talmage  v.  Mills  (Sup.)  80  N.  Y.  Supp.  637. 
Evidence  held  sufficient  to  warrant  finding 
of  knowledge — Duval  v.  Barnaby,  75  App. 
Div.    (N.   T.)    154,   11  N.   Y.  Ann.   Cas.    227. 

14.  Chicago  &  A.  R.  Co.  v.  Kuckkuck.  98 
ni.  App.   252;   affirmed,   64  X.   E.   35S. 

15.  If  the  owner  had  actual  knowledge — 
O'Neill  v.  Blase,   94  Mo.  App.   64S. 

16.  O'Xeill   V.   Blase.   94   Mo.   App.   648. 

17.  Laguttuta  v.  Chlsolm,  65  App.  Div. 
(N.  Y.)  326.  Evidence  held  sufficient  to  sub- 
mit to  the  Jury  question  of  liability  for  in- 
juries by  a  dog,  and  of  ownership  of  the  ani- 
mal— Laguttuta  v.  Chlsolm,  65  App.  Div. 
(N.  Y.)    326. 


18.  Dillehay  v.  Hlckey,  24  Kv.  Law  R. 
760. 

19.  Owner  of  land  h^eld  liable  for  hay 
consumed  by  his  cattle  on  his  premises  left 
thereon  by  his  permission — Spaulding  v. 
Xesbitt.  87  Mo.  App.   90. 

20.  If  he  had  knowledge  that  the  public 
land  on  which  he  grazed  his  cattle  had  been 

!  purchased;  though  the  same  was  not  dis- 
tinctly marked — Cosgriff  v.  Miller  (Wyo.)  68 
Pac.  206. 

21.  Sweet  V.  Ballentine  (Idaho)  69  Pac 
995. 

22.  Frazer  v.  Bedford  (Tex.  Civ.  App.)  66 
S.  W,  573.  Actions  in  Utah.  One-half  costs 
in  civil  cases  can  alone  be  recovered  in  ac- 
tions of  trespass  by  sheep.  Rev.  St.  §  20 — 
Smith  V.  Valentine.  23  Utah.  539,  66  Pac.  295. 

23.  Addington  v.  Canfield,  11  Okl.  204,  66 
Pac.  355;  the  trespass  occurring  between 
Xov.  1st  and  Apr.  1st  during  which  time 
under  Rev.  Codes,  §§  1549  and  6153,  certain 
stock  is  permitted  to  run  at  large — Ely  v. 
Rosholt  (N.  D.)  93  N.  W.  864.  Code  Civ. 
Proc,   c.   42,   has   been   abolished. 

24.  One    who    under    permission    of    the 
owner  of  land  drives  his  horse  thereon  helc 
justified    in    continuing   to    do   so    where    the 
subsequent    purchaser    of    the    land    had 
several  occasions  falsely  stated   that  he  ha 
purchased    It — Kimmons    v.    State    (Tex.    Cr.| 
\pp.)    71   S.  W.    283;   and   a  license   from   the 
owner  to  enter  is  a  defense  to   the  prosecu- 
tion— Franks    v.    State    (Tex-    Cr.    App.)    6J 
S.  VT.   9S5. 

25.  HiU's  Ann.  Laws,  S  3445;  Oliver 
Hutchinson,  41  Or.  443,  69  Pac.  139,  1024:| 
nor  can  he  impound  them — Gilmore  v.  Harp.l 
■^•^  Mo  A.pp.  77.  An  instruction  in  an  actlonl 
for  trespass  by  cattle  where  the  parties"! 
land  was  a  common  enclosure  that  If  plain-f 
tiff  attempted  to  erect  a  partition  fence  onl 
the  line  between  his  and  defendant's  land! 
•'or  approximately  so"  and  was  prevented.j 
etc.,  is  reversible  error  since  it  left  the  con- 
struction  of  the   quoted   words    to   the   Jury. 


ANIMALS. 


81 


An  escaped  animal  is  not  generally  speaking  "running  at  large,"^'  nor  if  grazing 
on  a  highway  under  the  care  and  control  of  an  attendant.^^  Injuries  resulting  from 
the  negligent  management  of  horses  on  highways  will  create  a  liability.^* 

Action  to  recover  damages  will  lie,^*  or  the  remedy  may  be  by  attachment/"  or 
by  a  proceeding  before  a  justice  of  the  peace  instituted  on  notice^^  or  by  distraint  as 
at  common  law^^  in  the  latter  case  they  can  be  held  only  for  the  damages  committed 
at  the  time  of  distraining  them.^^  The  remedy  to  recover  damages  for  trespass  by  the 
;inimals  of  an  adjoining  landowner  is  at  common  law.^* 

In  determining  the  damages  resulting  from  the  trespass  the  crop"  or  pasture 
shrinkage  will  be  considered.^* 

§  4.     Liability  for  Mlling  or  injuring  animals. — The  owner  or  occupant  of  land 

may  use  such  force  as  is  reasonably  necessary  to  eject  trespassing  animals  and  can  be 

held  liable  or  punished  only  for  injiiries  wantonly  or  purposely  inflicted  ^''  nor  is  the 

landowner  in  the  absence  of  wantonness  liable  for  injuries  sustained  by  trespassin*' 

;i  animals  caused  by  dangerous  agencies  on  his  land,** 

!  One  who  without  right  drives  an  animal  into  an  inclosure,  is  liable  for  injuries 

i'  resulting  to  other  animals  therein.'" 

I  Eecovery  in  tort  for  the  killing  of  sheep  by  dogs*"  or  allowances  for  such  losses 

■  under  the  various  local  statutes  is  treated  in  foot  notes.** 


—Oliver    V.    Hutchinson,    41    Or.    443,    69    Pac. 
1024. 

Fences,  as  to  duty  to  maintain  division 
fences. 

26.  It  escaped  from  an  enclosure  with- 
out fault  of  the  owner  and  he  was  making 
reasonable  effort  to  recapture  it — Myers  \. 
Lape,  101  111.  App.  182. 

27.  Morgan  v.   People,   103   111.  App.   257. 

28.  Highways  and  Streets. 

29.  Frazer  v.  Bedford  (Tex.  Civ.  App.)  66 
S.  W.  573.  Petition  in  trespass  held  suffi- 
cient though  it  failed  to  allege  that  the  en- 
try was  on  inclosed  or  cultivated  lands; 
the  court  taking  judicial  notice  that  the 
crops  alleged  to  have  been  destroyed  were 
not  the  spontaneous  product  of  the  soil — 
Meyers   v.  Menter    (Neb.)    88   N.  W.   662. 

30.  Against  the  owners  property  in  gen- 
eral as  well  as  the  stock.  Comp.  Laws, 
Nev.,  §  781 — Smith  v.  Fisher,  24  Utah,  506, 
68  Pac.  849. 

31.  It  is  not  necessary  that  a  summons 
be  issued.  Neb.  Comp.  St.  c.  2,  art.  3,  §  4 — 
Randall  v.  Gross  (Neb.)  93  N.  W.  223.  Ex- 
cept as  to  jurisdiction,  proceedings  under 
the  statute  will  be  liberally  construed.  Ne- 
braska Comp.  St.,  c.  2,  art.  3,  §§2,  3,  6, 
providing  for  the  taking  and  selling  on  ex- 
ecution of  trespassing  stock  is  constitution- 
al—Randall V.   Gross    (Neb.)    93   N.  "W.   223. 

32.  Graves  v.  Rudd  (Tex.  Civ.  App.)  65 
S.  W.  63.  North  Dakota  Rev.  Codes.  §  6153— 
Ely  V.  Rosholt  (N.  D.)  93  N.  W.  864.  The 
distrainer  may  hold  under  Laws  1890,  c.  569, 
§§  120,  121  though  he  may  have  attempted 
to  proceed  under  Code,  §  3085  et  seq. — 
Lynch  v.  Ford,  72  App.  Div.  (N.  Y.)  536.  The 
distrainer  loses  his  lien  if  he  fails  to  have 
the  damages  assessed  and  cannot  set  them 
up  in  an  action  of  replevin  by  the  owner. 
Iowa  Code,  §  2317 — ^Holaman  v.  Marsli 
(Iowa)  90  N.  W.  82.  In  case  of  estrays  en- 
tering from  highway  the  distrainer  may 
hold  the  animals  for  the  time  allowed  to 
perfect  his  lien;  and  not  until  after  such 
time  and  the  failure  to  perfect  the  lien  can 
the  owner  replevy  the  cattle — Laws  N.  T. 
1S90,   c.    569,    §    120 — Lynch    v.    Ford,    72    App. 

Curr.  Law — 6. 


?  s  1^-^-J-^  536.  Neb.  Comp.  St.  c.  2.  art. 
3,  §  4,  did  not  take  away  the  common  law 
remedy  to  recover  for  trespass  by  stock- 
Randall  V.  Gross   (Neb.)    93  N.   W    223 

33.  Holaman   v.    Marsh    (Iowa)'   90    N.    W. 

34.  Rev.  St.  1899,  §  354  does  not  apply 
where  the   entry  was  on  adjoining  land  oc- 

v"^FnUon"^«7  ^^  """T™""  enclosure— Jackson 
Julton.  87  Mo.  App.  228.  If  he  distrains 
under  Rev.  St.  1899,  c.  69.  art.  2.  he  canAo? 
set  up  failure  to  erect  a  division  fence  un- 
der an  agreement— Jones  v.  Habberman,  94 
Mo.  App.   1. 

35.  Oliver  v.  Hutchinson,  41  Or.  443  69 
Pac.   1024. 

36.  Oliver  v.  Hutchinson,  41  Or.  443,  69 
Pac  1024;  including  expense  for  feeding 
landowner's  stock— Cosgriff  v.  Miller  (Wyo  ) 
68  Pac.  206;  and  the  number  of  the  stock 
plaintiff  has  depending  on  pasturage — Sweet 
V.   Ballentine    (Idaho)    69   Pac.    995. 

37.  Addington  v.  Caufield,  11  Okl  204 
66  Pac.  355.  The  killing  a  dog  which  en- 
tered another's  premises  and  stole  provisions 
is  justifiable — Fisher  v.  Badger,  95  Mo.  App. 
289;  or  if  he  had  been  worrying  sheep  though 
at  the  time  of  the  killing  the  dog  had  left— 1 
Smith  V.  Wetherill,  78  App.  Div.  (N.  Y ) 
49.  Whether  one  was  justified  in  killing  a 
trespassing  dog  is  a  question  for  the  jury 
— McChesney  v.  Wilson,  9  Det.  Leg.  News 
(Mich.)    591,   93  N.  W.   627. 

Criminal  Procedure.  An  indictment  for 
wilfully  injuring  animals  must  allege  the 
value  of  the  injury — Dunklin  v.  State,  134 
Ala.  195;  Cr.  Code,  §  5091.  Evidence  held 
insufficient  to  show  wanton  or  wilfull  kill- 
ing of  trespassing  cow — Alexander  v.  State 
(Tex.   Cr.  App.)    70  S.   W.    425. 

38.  Beinhorn  v.  Griswold,  69  Pac.  (Mont.) 
557. 

39.  Irrespective  of  ownership  or  knowl- 
edge of  viciousness — Martin  v.  Parrell,  66 
App.  Div.   (N.  Y.)   177. 

40.  Complaint  held  to  state  a  cause  of  ac- 
tion under  the  statute  allowing  recovery  for 
sheep  killed  or  maimed  by  dogs — Peeler  v. 
McMillan,     91    Mo.    App.     310.         An    answer 


82 


ANIMALS. 


The  liability  of  railroad  companies  for  injiiries  to  animals*'  and  for  injuries 
to  horses  resulting  from  the  defective  construction  and  negligent  use  of  highways 
is  treated  elsewhere.*' 

§  5.  Contracts  of  agistment. — One  who  is  employed  to  herd  cattle  in  the  pos- 
session of  the  owner  is  not  an  agister.** 

The  lien  of  an  agister  is  statutory  and  did  not  exist  at  common  law.*"^  He  is 
entitled  to  possession  as  against  the  owner,*®  and  his  rights  have  priority  over  a 
subsequent  chattel  mortgage,*^  or  a  chattel  mortgage  recorded  without  the  county 
of  the  mortgagor's  residence.*'  In  the  absence  of  such  intention  surrender  of 
possession  will  not  operate  as  a  waiver  of  the  lien  in  favor  of  third  parties  with 
notice  of  its  existence,*®  nor  is  it  lost  merely  because  the  agister  demands  excessive 
charges  for  care,**"  but  if  he  brings  an  attacliment  action  against  the  cattle  he  will 
lose  his  lien.''^  If  the  agister  is  not  paid  his  lien  will  include  expenses  for  keeping 
after  demand  for  possession  by  the  owner."' 

The  procedure  for  enforcing  such  liens  varies  in  the  different  jurisdictions.*' 
Agisters  are  not  liable  for  loss  resulting  from  act  of  God.°* 
§  6.     Estrays  and  impounding. — The  right  to  take   and  impound   animals 
found  at  large  and  the  enforcement  of  charges  for  the  keeping  of  them  has  been  the 
subject  of  various  enactments,  as  shown  in  the  foot  notes."' 


which  set  up  that  plaintiff  Invited  dog's  by 
permitting  unburned  carcasses  of  slieep  to 
remain  on  his  premises  Is  demurrable — Peel- 
er V.  McMillan.  91  Mo.  App.  310;  that  the 
dog  was  tracked  to  defendant's  residence 
and  was  subsequently  seen  near  the  car- 
casses, and  that  defendant  killed  his  dog 
shortly  after  the  sheep  were  killed  may  be 
considered  by  the  jury  on  the  question 
whether  defendant's  dog  killed  the  sheep — 
Peeler  v.  McMillan.  91  Mo.  App.  310, 

41.  Indiana.  A  buyer  and  seller  of  sheep 
is  within  Burns'  Rev.  St.  1901,  §  2S57  and 
may  be  allowed  for  sheep  killed  from  the 
dog  tax  fund — Wayne  Tp.  v.  Jeffery  (Ind. 
App.)  64  X.  E.  933.  Report  should  be  made 
to  the  trustees  of  the  township  wherein  the 
damage  is  done — Wayne  Tp.  v.  Jeffery  (Ind. 
App.)  64  N.  E.  933.  J»Iassachnsett8.  A  bill 
for  damages  may  be  allowed  by  the  com- 
missioners at  any  time.  St.  18S9,  c.  454,  § 
6  being  merely  directory — Johnson  v.  Gris- 
wold.  179  Mass.  580.  That  the  appraisal  cer- 
tificate stated  joint  ownership  of  the  sheep 
when  but  one  of  the  parties  owned  them 
will  not  defeat  a  recovery  against  the  own- 
er of  the  dog — Johnson  v.  Griswold,  179 
Mass.   5S0. 

42.  Carriers;   Railroads;   Street   Railroads. 

43.  Highways. 

44.  Boston  &  K.  C.  Cattle  Loan  Co.  v. 
Dickson,  11  Okl.  6S0,  69  Pac.  889. 

45.  And  the  statutes  giving  such  lien 
should  be  liberally  construed — Becker  v. 
Brown  (Neb.)  91  N.  W.  178;  Same  v.  Dale, 
Id. 

46.  And  the  forcible  taking  them  from 
the  agister's  possession  constitutes  a  larceny 
— Tennalty  v.  Parker,  100  111.  App.   382. 

47.  Becker  v.  Brown  fXeb.)  91  N.  W.  178; 
Same  v.  Dale,  Id.  If  Gen.  St.  1901.  §  3931 
had  not  been  followed  a  mere  agreement 
with  the  mortgagor  will  not  give  the  agister 
priority  over  the  pre-existing  mortgage — 
Central  Nat.  Bank  v.  Brecheisen  (Kan.)  70 
Pac.    895. 

48.  Rev.  St.  1899,  §  5404 — Duke.  Lennon 
&  Co.  V.  Duke  &  Woods,   93  Mo.  App.   244. 


49.  Becker  v.  Brown  (Neb.)  91  N.  "W,  178; 
Same  v.  Dale,  Id. 

50.  There  being  no  tender  or  refusal  of 
the  sum  actually  due — Folsom  v.  Barrett, 
180  Mass.   439. 

51.  Boston  &  K.  C.  Cattle  Loan  Co.  v. 
Dickson.  11  Okl.  680,  69  Pac.  889. 

52.  Nothing  appearing  showing  an  inten- 
tion to  revoke  the  contract  or  to  pay  the 
lien — Folsom  v.  Barrett.  180  Mass.  439. 

53-  In  Nebraska  the  parties  may  agree 
on  a  mode  of  enforcing  the  lien  and  wheth- 
er there  was  such  an  agreement  is  a  ques- 
tion for  the  jury — Dale  v.  Council  Bluffs 
Sav.  Bank  (Neb.)  9  N.  W.  526;  Brown  v. 
Same,  Id.  In  Maine  municipal  courts  have 
jurisdiction  to  enforce  an  agister's  lien 
though  the  owner  resides  without  the  coun- 
ty. Rev.  St.  c.  91,  §  56;  Pub.  Laws  1901,  c. 
262 — McGillicuddy  v.  Edwards,  96  Me.  347. 

54.  Humbert  v.  Crump  (Kan.)  71  Pac. 
239;  contract  construed  and  agister  held  not 
liable  for  cattle  killed  by  storm — Wells  v. 
Sutphln,  64  Kan.   873,   68  Pac.   648. 

55.  Georgia.  The  charter  of  the  city  of 
Wavcross  does  not  give  a  right  to  Impound 
cows — Mayor,  etc.,  of  City  of  Waycross  v. 
Walker,  42  S.  E.  375.  Missouri.  An  adjoin- 
ing owner  who  fails  to  erect  a  division 
fence  according  to  agreement  cannot  im- 
pound trespassing  animals  belonging  to  the 
adjoining  owner — Gilmore  v.  Karp.  92  Mo. 
\pp.  77.  Sale.  In  Colorado  failure  to  give 
the  owner  personal  notice  of  sale  when  his 
address  is  known  renders  the  estrayer  a 
trespasser  ab  initio,  and  the  owner  may  re- 
cover the  animal  without  tendering  the 
charges  for  keeping,  and  fhis  though  the 
owner  had  actual  knowledge  of  the  sale- 
Mills'  Ann.  St.  §  114— Bailey  v.  O'Fallon 
(Colo.)  70  Pac.  755.  In  Texas  the  presence 
of  the  estrayer  and  two  other  persons  is 
not  a  compliance  with  the  statute— Floyd 
V  State  (Tex.  Cr.  App.)  68  S.  W.  690;  Sayles. 
Ann.   Civ.  St.  arts.   2373,   4963,   4969. 

The  owner's  consent  to  the  sale  need  not 
be  negatived  in  the  information  on  a  prose- 
cution for  illegal  sale— Floyd  v.  State  (Tex. 
Cr    App.)    68   S.    W.    690.     Vermont.     Absence 


ANIMALS. 


83 


A  public  impounder  is  liable  for  all  wrongful  acts  done  under  color  of  oflSce." 

§  7.  Regulations  as  to  care,  leeping  and  protection  and  health. — Statutes  pro- 
hibiting or  limiting  the  running  at  large  of  stock  have  been  generally  held  to  be 
valid^^  and  in  several  of  the  states  an  enabling  provision  in  prohibitory  statutes  has 
left  the  question  whether  they  shall  apply  to  certain  districts  to  the  municipal  author- 
ities or  by  election  of  freeholders  thereof.^*  One  claiming  the  benefit  of  free  range  has 
the  burden  of  showing  the  existence  of  the  right  in  his  district."** 

Statutes  providing  for  the  killing  of  animals  affected  with  contagious  diseases 
have  also  been  held  to  be  valid.*" 

The  keeping  of  male  animals  for  breeding  purposes  is  usually  regulated  by 
statute.** 

Interstate  transportation;  qvarantine;  inspection. — It  is  within  the  power  of 
a  state  to  quarantine  cattle  for  a  period  or  compel  inspection  before  bringing  them 
into  the  state/^  and  the  mode  and  time  of  declaring  a  quarantine  is  to  be  deter- 
mined by  reference  to  the  statutes.®^  A  criminal  accusation  of  violating  such  reo"u- 
lations  must  with  certainty  allege  the  regulation.** 


of  the  Impoundini'  officer  from  home  Is  not  an 
excuse  for  the  failure  to  advertise  the  sale 
within  four  days.  St.,  §  4780 — Farrar  v.  Bell, 
73  Vt.   342. 

56.  Kansas  City  v.  Minor,  89  Mo.  App. 
617. 

57.  Alabama..  Sufficiency  of  title  of  stock 
law — Street  v.  Hooten,  131  Ala.  492.  Okla- 
homa. Permitting  the  running  at  large  in 
one  instance  and  prohibiting  It  In  another 
is  not  a  local  law — Addington  v.  Caufleld, 
11  Okl.  204,  66  Pac.  355.  South  Carolina. 
Statute  exempting  a  part  of  a  county  from 
the  operation  of  the  stock  law  is  not  a 
taking  of  property  without  compensation — 
Goodale  v.  Sowell,  62  S.  C.  516.  Texas.  Does 
not  deprive  one  of  his  property  without  due 
process  of  law.  Laws  18991  c.  128 — Graves 
V.  Rudd  (Tex.  Civ.  App.)  65  S.  W.  63.  Idaho. 
Rev.  St.,  §§  1210,  1211  prohibiting  herding  or 
grazing  within  two  miles  of  inhabited  dwell- 
ings Is  valid — Sweet  v.  Ballentlne,  69  Pac. 
995. 

58.  Alabama.  A  district  may  be  extend- 
ed by  legislative  action  without  the  consent 
of  the  owner — Street  v.  Hooten,  131  Ala. 
492. 

niisslsalppl.  By  board  of  supervisors,  and 
their  order  establishing  an  Irregular  dis- 
trict being  void  may  be  collaterally  attack- 
ed. Laws  1899,  c.  17 — Garner  v.  Webster 
County,    79    Miss.    565. 

North  Carolina.  Petition  to  board  of 
commissioners;  the  majority  may  include 
landowners  of  a  part  of  the  district  wherein 
the  law  had  been  established.  Laws  1901, 
c.  631 — Perry  v.  Commissioners,  130  N.  C. 
558. 

Texas.  By  election  of  freeholders.  Suf- 
ficiency of  petition  and  order  for  an  election 
— Graves  v.  Rudd  (Tex.  Civ.  App.)  65  S.  W. 
63;  description  of  the  district  in  petition  held 
sufficient — Jones  v.  Carver  (Tex.  Civ.  App.) 
67  S.  W.  780.  An  election  order  to  determine 
whether  hogs,  sheep  or  goats  shall  be  per- 
mitted to  run  at  large  is  alternative  and 
void — Reuter  v.  State  (Tex.  Cr.  App.)  67  S. 
W.  505;  or  it  is  void  if  made  during  the 
term  In  which  the  petition  was  filed — Rob- 
ertson v.  State  (Tex.  Cr.  App.)  70  S.  W. 
542.  Conveying  land  to  persons  merely  to 
enable  them  to  vote  will  not  qualify  them — 
Jones  V.  Carver  (Tex.  Civ.  App.)  67  S.  W. 
780. 


5f».  He  must  to  allege  his  petition  to 
restrain  Interference  with  his  stock — Ad- 
dington V.  Caufleld,  11  Okl.  204,  66  Pac.  335. 

60.  Rev.  St.  §5  4931-4933  providing  for 
the  killing  of  certain  animals  affected  with 
contagious  diseases  do  not  provide  for  the 
taking    of    private    property    for    public    use 

without    iust   compensaton,    and    are    valid 

Livingston  v.  Ellis  County   (Tex.  Civ.  App  ) 
68   S.   W.    723. 

61.  If  a  certificate  of  pedigree  Is  not  filed 
the  owner  cannot  recover  for  the  services 
rendered,  even  though  the  previous  owner 
had  filed  a  certificate — Davis  v.  Randall,  97 
Me.  36. 

62.  Such  a  requirement  not  being  a  regu- 
lation of  interstate  commerce.  Colo.  Sess. 
Laws  1885,  p.  335,  §  2 — Reid  v.  People,  29 
Colo.  333,  68  Pac.  228;  affirmed,  23  Sup.  Ct. 
(U.  S.)  92;  or  with  the  Fed.  Const,  guaran- 
tying equal  privileges  of  the  citizens  of  all 
the  states — Reid  v.  People,  29  Colo.  333,  68 
Pac.  228;  affirmed,  23  Sup.  Ct.  (U.  S.)  92; 
nor  In  conflict  with  act  of  Cong.  May  29, 
1884  to  prevent  spreading  of  disease  among 
domestic  animals — Reid  v.  People,  29  Colo. 
333,  68  Pac.  228;  affirmed,  23  Sup.  Ct.  (U. 
S.)  92.  A  certificate  from  the  state  inspec- 
tor is  necessary  though  the  shipper  held  a 
certificate   from   the    federal    officers. 

63.  111.  Laws  1885  (Kurd's  R.  S.  1889,  p. 
155,  §  4,  to  prevent  Importation  or  sale  of 
diseased  cattle  is  penal  and  should  be  strict- 
ly construed — Pierce  v.  Dillingham,  96  111. 
App.  300.  The  commissioners  and  the  gov- 
ernor have  no  power  to  prohibit  importation 
of  particular  kinds  of  domestic  animals  from 
all  parts  of  the  world  except  on  such  condi- 
tions as  they  might  prescribe — Pierce  v.  Dil- 
lingham, 96  111.  App.  300.  An  officer  can  not 
quarantine  cattle  on  the  mere  request  of  the 
commissioners.  A  formal  complaint  'is  neces- 
sary. Gen.  St.  1899,  §  7091 — Asbell  v.  Ed- 
wards, 63  Kan.  610,  66  Pac.  641.  A  quaran- 
tine line  to  be  valid  must  conform  to  the 
line  fixed  by  the  federal  agricultural  depart- 
ment. Rev.  St.  1895,  art.  5043k — Ft.  Worth 
&  D.  C.  R.  Co.  V.  Masterson  (Tex.)  66  S.  W. 
833. 

64.  An  Information  charging  the  defend- 
ant with  moving  cattle  from  a  certain  dis- 
trict without  inspection  but  which  fails  to 
charge  that  such  a  rule  was  promulgated  is 


S4 


AJsNUITlES. 


§  8.  Marls  and  Irzncs. — ^Under  some  statntes  it  has  been  held  that  a  brand 
to  be  rec-orded  in-:i5:  cesirnaie  on  what  part  of  the  aniTnal  ii  is  placed :"  if  reoorded 
a  certized  copy  is  admissible  to  prove,  and  is  prima  facie  proof  of  owiier=hip  of  the 
*nima:A  when  rmming  at  large,**  and  parol  proof  of  use  of  a  panicmlar  mark  or 
bramd  wmj  be  admitted  for  purpoees  of  identification  only.*'  A  crimiiial  iiabiiitr 
for  inangfiil  branding  or  nse  of  brands  has  been  imposed  in  manv  states,  the  pro- 
eednre  being  illustrated  in  footnotes.*" 

§  9.    Cruelty  to  tmimaU. — ^Laws  for  the  MTItng  of  decrepit  or  crippled  animals 
to  prevent  craeUy  must  provide  opportradty  for  the  owner  to  have  notice  and 
hemrd-**  Feisons  who  are  carried  for  hire  are  not  gmlty  of  overloading  and  o^ 
driving."    One  idio  wilfnlty  ne^ects  to  furnish  a  domestic  animal  with  sii£5ciE 
food  for  SQsteaaanoe  is  gmlty  of  erodty." 

If  the  indictment  charges  the  act  as  being  wilfnUy  and  milawfolly  done 
need  not  charge  that  it  was  maUcionsty  done.'*     The  offense  maj  be  laid  on  a  d 
and  ''each  day"  thereaaer.^ 

A2r2rDTrrES. 

l%ae  moBt  be  a  fixed  Bum  payable  a:  ill  ^-^nts  to  constitirte  an  amndty 
tingmshed  from  a  gift  of  income.'*    An  inz.  m  i.  payment  oorenanted  for  in  a  ( 
not  to  be  r^arded  as  rent  merel7  :  f :..  .15;  ni  ie  i  lien  on  the  land,'*  though  in  stric 
neas  as  distingidfilied  from  a  re-:  ;  .  :  je  :-.:l  anntiity  is  always  charged  on  a  person  1 
merelT  and  hence  is  personal  esriii.  ■ 

In  creating  annuities  if  by  will  many  questions  of  interpretation  arise  which  per- 
tain to  the  law  of  willa.  Local  Hmitatknffi  on  the  ri^t  to  suspend  alienability 
be  avoided  if  a  corpus  be  set  out  to  nise  the  payments."    An  annuity  for  life  in 
fuctwn  of  a  debt  is  valid  though  not  computed  on  the  actual  sum  falling  due  as  pi 
cipal  and  interest."    When  payable  on  a  day  certain  an  umniiy  wiU  not  be  ap} 
tioned  on  the  annnitanf  s  earlier  death/*  but  it  may  be  paid  by  installments  if  the 
does  not  provide  otiierwise."    If  a  fund  to  produce  the  annuity  is  to  be  set  out 
executors  should  decide  how  much  and  if  any  surplus  0.'  income  is  produced  it  is 
for  the  annuitant."    An  annuity  payable  by  an  executor  out  of  lands  is  within  a '. 
declaring  a  trust  not  assignable.*^    An  annuity  will  be  r^arded  as  a  charge  on  lane 
wfaoe  it  is  payable  from  '^noney"  of  the  estate  but  lands  and  money  are  given  in 
eommon  mass.** 


t— ulBeieiit— W^aDace  t.  State  (Tex.  Or.  App.) 
C9  s.  nr.  5»C. 

CL  *Kin  the  shoulder  or  side"  Is  not  snf- 
fletaat — Beese  ▼.  State  (Teiz.  Cr.  App.)  S7  S. 
W.  SXS;  or  Tjeft  iaw.  left  shooldo'  or  stdeT 
Is  not  sufficient — Steed  ▼.  State  (Tex.  Cr. 
App.)  vr  3.  vr.  8*S. 

66.     C-iIr    T     ;;.  IS   (H.  M.)   CS  Pae.  52t. 

6T.     Cir  ;     ss    (N.    M.)    «6    Pac    6S«; 

S:-ei    '      5:    :-      Tex.  Cr.  App.)   «7  S.  W.  S2S. 

!?> .  I  -;::•—.  r  -  -.  :f :  -  iMilawfaUy  branding 
:i:::r    r.r  i    ::    eu:=  .".y  state  the  time  of 

-i     :    -—   ;;   :r.  -^-nsc  and  not  ob- 

-  ^ =  offenses — Orte- 

r  1     V      7    :  r       7  Pac    5*4.     Evl- 

c  -  -    -      ::  -   i      ;  :V=  ; :    r  ;  -  :  —     change     of 

v---^     —     -       --^--     -       -     i^--iud — Samples 
v"  Y-i:r      7^-'    :r     a;;       '-.   =     ~.  1041- 

^    -;  I   1,   held  nnconstl- 

V  _  7  :     ;y.  Tl  N.  HI  i3«. 

-,i       i  - --      c  ~  —  -      ''■r"!?5  "'     ■-    5^    9S1. 


fiti  v.   S: 


rs. 


r— Giif- 
:-:  Pae. 


was  fcald  to  diarge  Imt  a  single   o'en: 
State  -r.  Cook  (Ooon.)  53  AtL  589. 

T^      Sum  named  was  to  be  paid  ont  of 
come"  and  corpus  was  not  to  be  Imi 
Homer  t.  T^ndis,  95  Md.  320.    In  Gillispie 
Boissean    (App.)   23  Ky.  Law  S.  1046  a 
ont   of    *Yents   and   Interest"   was   caUed 
annuity  bnt  there  were  w^ords  pointing 
an  Intention  to  give  it  at  aU  events. 

75.     Nehls  ▼.  Saner   (Iowa)    93  N.  \^.  34 

T€.    CycL    Law   Diet.,    "Annuity"    citing   1^ 
Watts.  1»7.  1  BL  Comm.  40. 

W.    Consult  Perpetuities:  "Wills. 

78.  It  was  called  "interest"  and  assaile 
as  iraurio-os — ^Price's  Adm'x  v.  Price's  Adm'; 
(App.)    23  Ky.  Law    R.  1911.  1947. 

79.  NeMs  ▼.  Saner  aowa)  93  N.  'W.  S4C.| 
8ik     Backer  ▼.  Haddox.  114  Ga.  899. 
81.    Morse  ▼.  Tilden,  35  Misc.    (X.  T.) 
8S.     Bothschlld  ▼.   Bora,   78  App.   Div. 

T.)   I8S.  also  holding  the  evidence  sufficle 
to    show   an   assignment    to    have    been 
security    only.      As    to    asslsnability    of 
peetant  or  contingent  rights   generaUy. 

Assignments.  .^  ^^ 

83.    Perkins  T.    First    Nat^Bank    (Mis 
:S   So     18- 


CURRENT  LAW. 

((jopyrigiiiea  DMi,  by  Jotui  B.  West  Company.) 


Volume  I. 


SEPTEMBER,  1903. 


NCMBBB  2. 


APPEAL  AND  REVIEW. 


§  1.  The  Right  in  General. — Statutes;  How- 
Lost;  Another  Appeal. 

§  2.     The  Remedy  for  Obtaining  Revievr.^ 

Appeal  or  Error;  Certification;  Certiorari, 
Etc. 

§  3.  The  Parties. — Plaintiff  or  Appellant; 
Defendant  or  Respondent. 

§  4.  Adjudications  Which  May  be  Re- 
viewed.— A.  Statutes.  B.  General  Character 
or  Form  of  Order;  Practice  Orders  and  Rul- 
ings and  Other  Particular  Orders;  Provision- 
al or  Special  Orders.  C.  Character  or  "Value 
of  Subject  Matter  or  Controversy;  Constitu- 
tional or  Federal  Questions;  Freeholds,  Etc. 
D.   Parties.     E.  What   is   Certifiable. 

§  5.  Courts  of  Review  and  Their  Jurisdic- 
tion. 

§  C.  Bringing  up  the  Cause. — Time;  AfH- 
davits  and  Oaths;  Notice;  Applications,  Peti- 
tions and  Statements;  Allocatur;  Bonds. 

§  7.  Transfer  of  Jurisdiction;  Supersedeasi 
and  Stay. 

§  S.  Appearance,  Entry,  and  Doclveting 
Above. 

§  9.  Perpetuation  of  Proceedings  and  Evi- 
dence    for     the     Reviewing     Court. — Record 


Proper;  Bill  of  Exceptions;  Settled  Case  or 
Statement;  Abstracts. 

§  10.  Transmission  of  Proceedings  and 
Evidence  to  the  Revievring  Court. 

§  11.  Practice  and  Proceedings  in  Appel- 
late Court  before  Hearing. — Joinder  and  Sev- 
erance; Cross-Proceeding-s;  Amendments  of 
Parties;  Calendar  and  Terms;  Forming  Is- 
sues, Assigning  Errors;  Briefs;  Quashing  and 
Dismissing. 

§   12.      Hearing. 

§  13.  Review. — A.  Mode.  B.  General  Scope. 
C.  Rulings  Below.  D.  Character  of  Order  or 
Judgment.  E.  Matters  of  Record.  F.  Dis- 
cretionary Rulings  and  Questions  of  Fact. 
G.  Decisions  on  Lower  Appeals.  H.  Effect  of 
Former  Decision  in  Same  Case. 

§  14.  Provisional,  Ancillary  and  Interlocu- 
torj'  Relief. 

§15..  Decision  and  Determination. — Affirm- 
ance or  Reversal;  Transfers  and  Rese'rva- 
tions;  Remand  or  Final  Determination;  Find- 
ings and  Opinions;  Modifying;  Mandate  and 
Retrial. 

§  16.     Rehearing  and  Relief  Thereon. 

§  17.     Liability  on  Bonds  and  the  Like. 


Scope. — "Appeal"  is  loosely  used  to  designate  both  appeal  and  error  and 
also  statutory  substitutes  for  them.  It  is  intended  to  exhaustively  treat  cases  per- 
tinent to  any  of  such  modes  of  review.  Proceedings  for  the  review  of  special 
and  anomalous  proceedings,  like  drainage  proceedings,  eminent  domain,  equaliza- 
tion of  taxes,  and  others  which  readily  suggest  themselves,  are  also  treated  more 
fully  and  specifically  under  titles  dealing  with  the  procedure  to  which  such  review 
is  incidental.^  The  review  of  criminal  prosecution-  and  of  the  proceedings  of 
certain  inferior  tribunals^  is  subject  to  such  rules  that  separate  treatment  is  re- 
quired. For  the  same  reason  certiorari  practice,  and  procedure  upon  bills  of  re- 
view and  bills  to  obtain  relief  from  judgments,  must  be  excluded.*  Limited  re- 
visory and  supervisory  relief  is  afforded  by  such  remedies  as  injunction,  habeas 
corpus,  mandamus,  and  prohibition,  but  it  is  also  foreign  to  this  article. 

In  a  future  number  of  Current  Law  an  article  on  "Harmless  Error"  will 
be  printed,  such  subject  being  broader  in  its  relations  than  this,  and  containing 
matters  equally  applicable  to  "New  Trial."  The  mode  of  saving  questions  for 
review  is  in  like  manner  pertinent  to  a  wider  range  of  proceedings  than  appeal.^ 


1.  See  forthcoming  articles  on  Eminent 
Domain,  Public  Works  and  Improvements, 
Taxes. 

2.  Criminal   Procedure. 

3.  See  Courts,  Justices  of  the  Peace. 


4.  See     articles     on     Certiorari,     Equity, 
Judgment. 

5.  See  Harmless  Error,  Saving  Questions 
for  Review. 


86 


APPEAL  AND   REVIEW. 


§  1.  The  rigid  in  general.  A.  Constitution  and  statutes. — Appeal  is  a 
strict  statutory  right/  wliicli  maj'  be  lost  by  a  repeal  of  a  statute  giving  it/  if  not 
protected  by  the  constitution.^  If  a  statutory  right  of  appeal  be  given,  a  court  can- 
not add  conditions.^  A  right  to  appeal  is  not  a  "vested"  one,"  nor  want  of  it 
a  "denial  of  justice";"  and  an  appeal  to  courts  of  last  resort  in  all  cases  is  not 
essential  to  satisfy  the  constitutional  requirement  that  "all  courts  shall  be  open." 
Therefore,  when  it  is  provided  that  no  appeals  shall  "hereafter"  be  taken,  the 
statute  retroacts  on  pending  cases.^- 

B.  Waiver,  election,  transfer,  or  extinguishment.^^ — The  right  may  be  waived.^* 
Certiorari  to  review  the  granting  of  a  writ  of  error  by  the  circuit  court  of  appeals 
should  be  seasonably  applied  for.^^ 

Extinguishment  of  the  subject-matter  or  interest  destroys  the  right."  Pay- 
ment of  costs  on  a  judgment  carrying  no  money  is  not  a  satisfaction,^^  nor  is  the 
application  of  a  deposit  in  court,  when  there  is  a  dispute  as  to  the  excess  unpaid.^^ 
Mistake  may  reopen  a  satisfaction."  One  party  cannot  defeat  an  appeal  by  en- 
tering satisfaction  of  record.^"  An  interlocutory  order  cannot  be  reviewed  after 
it  is  materially  changed.^^ 

Under  a  statute  providing  that  causes  of  action  for  personal  injuries  shall 
survive  when  the  plaintiff  obtains  judgment,  but  dies  pending  appeal,  in  which 
the  judgment  is  reversed,  an  appeal  is  impliedly  given  to  the  defendant  in  case 
the  plaintiff  dies  before  the  appeal  is  perfected.^^  A  stay  until  revival,  and  not 
a  loss  of  the  right  of  review,  is  the  effect  of  death  of  the  adversary  after  judg- 
ment. ^^ 

Obedience  to  an  order  waives  the  right  to  a  review  ;-■*  but  the  intention  must  be 
clear,^^  as  where  judgment  is  voluntarily  paid,^®  and  pa}Tnent  accepted.^^  Parties 
so  paying  a  judgment  may  reserve  the  right  of  review.^* 


6.  Hawkins  v.  BurweU,  1^1  111.  389.  Act 
providing  no  appeal  may  be  valid  if  cer- 
tiorari  lies — State  v.  Com'rs,   87  Minn.   325. 

7.  Appeal  not  a  "suit  instituted"  within 
a  saving  clause — Lake  Erie  &  W.  R.  Co.  v. 
Watkins,  157  Ind.  600. 

8.  Legislature  may  regulate  but  not  give 
or  destroy  the  right  (Const,  art.  8,  §§  2,  3) 
— Finlen  v.  Heinze    (Mont.)   69  Pac.  829. 

9.  Eminent  domain  proceedings — Maul- 
din  v.  Greenville,  64  S.  C.  444. 

10.  Lake  Erie  &  W.  R.  Co.  v.  Watkins, 
157  Ind.   600. 

11.  Ins.  Co.  of  N.  A.  V.  Schall,   96  Md.  225. 

12.  Lake  Erie  &  W.  R.  Co.  v.  Watkins, 
157  Ind.   600. 

13.  See  post,   §   3,   "Persons  entitled." 

14.  Participating  in  new  trial — Geraghty 
V.  Randall  (Colo.  App.)  70  Pac.  767.  Not 
waived  by  asking  for  entry  of  judgment  on 
the   verdict   after   being  refused   a   new   trial 

Carlson    v.    Benton    (Xeb.)     92    N.    W.    600. 

Original  order  of  injunction  not  appealable 
after  parties  have  proceeded  and  it  has  been 
materially  modified  on  pleadings — Sharpies 
v.  Baker.  100  111.  App.  108.  Mortgagee  may 
appeal  from  condemnation  proceedings 
though  he  also  claims  against  fee  owner — 
Omaha  Bridge  Co.  v.  Reed  (Xeb.)  92  X.  W. 
102L 

15.  Ayers    v.    Polsdorfer,    187    U.    S.     585. 

16.  Appeal  from  temporary  injunction  fails 
by  final  determination  of  the  controversy — 
Wallace  v.  Deane  (Idaho)  ff9  Pac.  62.  Ap- 
peal from  action  to  enforce  judgment  fails 
by  reversal  of  the  judgment — McGill  v.  Bart- 


man  (Ky.)  68  S.  W.  1100.  Appeal  from  judg- 
ment on  demurrer  after  defects  have  been 
cured  by  pleading  over — Wirth  v.  Wirth, 
ISl  Mass.  541.  An  administrator  may  con- 
tinue an  appeal  from  divorce  and  alimony — 
Coffman  v.  Finney,  65  Ohio  St.  61,  55  L.  R. 
A.  794.  Satisfaction  of  the  judgment  extin- 
guishes the  right — Klinkle  v.  McClintock 
(Iowa)  93  N.  W.  86.  Contra, — Shannon  v. 
Padgett,  24  Ky.  Law  Rep.  1281. 

See,  also,  post,  §  11.  as  to  want  of  interest 
as  ground  for  dismissal. 

17.  Territory  v.  Cooper,  11  Okl.  699,  69 
Pac.  813. 

18.  Duggan  V.  Smith,  27  Wash.  702,  68 
Pac.   356. 

19.  Judgment  omitted  interest — Jackson 
V.   Brockton,   182  Mass.   26. 

20.  MacEvitt  v.  Maass,  64  App.  Div.  (N. 
T.)    382. 

21.  Interlocutory  injunction — Sharpies  v. 
Baker,   100  111.  App.  108. 

22.  Transcript  was  not  yet  filed  when 
plaintiff  died — Western  Union  Tel.  Co.  v, 
Adams,   28  Ind.  App.   420. 

23.  Barton  v.  Xew  Haven,  74  Conn.  729. 

24.  Order  to  elect — Morris  v.  Wofford,  114 
Ga.  935.  Mandatory  injunction  obeyed — 
Knight  v.  Hirboun,  64  Kan.  563,  67  Pac.  1104. 
State  V.  Maloney,  108  Tenn.  82.  Obeying 
mandamus  after  appealing — Campbell  v. 
Hall,  28  TVash.  626,  69  Pac.  12;  Betts  v. 
State     (Xeb.)    93  N.  W.   167. 

25.  O'Rourke  v.  New  Orleans,  106  La. 
313. 

26.  Cowell    V.    Gregory,    130    N.    C.    SO.    de- 


THE    RIGHT    IN    GENERAL. 


87 


Enforcement  of  a  judgment  afSrms  it.^''     So,  too,  adopting  it;  as  if  one  ac- 
cepts costs  imposed  as  a  condition  to  an  order  for  the  other's  relief.^"     Tims  a 
judgment  for  possession  of  land  may  be  adopted  by  harvesting  a  crop  thereon, 
;  though  a  condition  remains  unperformed;^^  but  merely  urging  a  proceeding  and 
;  decision  therein  as  ground  for  some  action  by  the  court  in  other  litigation  does 
not.^-     The  right  of  appeal  is  not  waived  by  scheduling  the  judgment  in  banlc- 
:  ruptcy.^'     jSTeither  does  availing  of  one  kind  of  relief  granted  prevent  appeal  for 
'  error  in  refusing  complete  relief.^* 

Acceptance  of  benefits  will  show  a  waiver  unless  the  rights  to  them  are  abso- 
lute, so  that  an  appeal  could  work  no  change.^^ 

Waiving  an  appeal  carries  with  it  appeal  from  a  dependent  proceeding.^*'     The 
riglit  to  appeal  from  a  provisional  order  is  not  waived  by  going  to  trial  on  the  -main 
■  case  on  changed  issues."     A  right  to  review  an  order  is  not  lost  by  failing  to  ap- 
I  poal  a  former  order  denying  the  same  relief,^*  or  failing  to  move  sooner.^^ 
j  Agreement  to  terms  of  judgment  waives  an  appeal,'"  but  an  agreement  for 

1  trial  of  a  cause  does  not  relinquish  the  right  to  review  because  it  does  not  in  terms 
i  reserve  a  right  of  exception.*^ 

;  Successive  orders  or  reviews. — A  person  who  exercises  one  concurrent  right 

of  appeal  is  deprived  of  the  other."  Appellant  cannot  dismiss  his  appeal,  and  re- 
enter another  in  the  same  case  ;*^  and  an  appellant  from  the  appointment  of  guard- 
ian, who  was  nonsuited  for  failure  to  appear,  and  made  no  attempt  to  sustain  his 
appeal,  cannot  take  a  further  appeal.**  The  right  is  not  necessarily  lost  by  prose- 
cuting a  different  form  of  review  proceeding  unsuccessfully;*^  but  an  unsuccessful 
appellant  to  an  intermediate  court  cannot  bring  error  from  the  trial  court  to  the 
court  of  last  resort.**     There  must  be  the  elements  of  an  election,*'^  or  the  judg- 


ciding  also  that  Code,  §  886,  relating  to  ap- 
pellate practice  after  payment,  referred  only 
to  involuntary  payments. 

27.  Trimble  v.  First  Nat.  Bank,  101  111. 
App.  75. 

28.  Receipt  reserved  it — Staehle  v.  Leo- 
pold, 107  La.  399. 

29.  Owens   V.   Phosphate  Co.,   115   Ga.   768. 

30.  Opening  default  —  San  Bernardino 
County  V.  Riverside  County,  135  Cal.  618,  67 
Pac.  1047. 

31.  Payment  of  certain  moneys — Easton 
v.  Lockhart     (N.  D.)   S9  N.  W.   75. 

32.  Judgment  appealable  though  pleaded 
as  former  recovery — Missouri,  K.  &  T.  Ry. 
Co.  v.  Bagley,  65  Kan.  188,  69  Pac.  189.  Ur- 
ging separation  as  final  in  suit  to  divide 
community — Melancon  v.  Wilson,  107  La. 
628. 

33.  Bennett  v.  Bennett,  23  Ky.  Law  Rep. 
1281. 

34.  Judgment  set  aside  conveyances  but 
did  not  fully  adjudge  property  rights — 
Milam  v.  Hill   (Tex.   Civ.  App.)    69   S.  W.   447. 

35.  Easton  v.  Lockhart  (N.  D.)  S9  N.  W. 
75.  Trapp  v.  Off,  194  111.  287,  holds  it  a  re- 
lease of  errors. 

Ballinger  v.  Connecticut  Mut.  Life  Ins.  Co. 
(Iowa)  91  N.  W.  767,  in  which  case  a  stipu- 
lation as  to  amount  of  an  attorney's  fee  had 
made  uncertain  the  net  amount  recoverable 
after  deducting  "expense  of  collection."  Re- 
taining costs  paid  as  a  condition  of  opening 
default — T>ounsbery  v.  Erickson  (S.  D.)  92 
N.  W.  1071. 

Acceptance  of  public  warrant  for  part 
waives  appeal  from  disallowance  of  the  re- 
mainder of  a  claim — Weston  v.   Palk    (Neb.) 


92    N.    W.    204;    Dakota   County    v.    Borowsky 
(Neb.)    93  N.  W.   686. 

36.  Acquiescing  in  the  dismissal  of  man- 
damus as  against  a  principal  officer  destroys 
the  right  to  appeal  from  the  order  as  affect- 
ing a  subordinate  for  incidental  relief — 
Evans  v.  United  States,  19  App.  D.  C.  202. 
Appealability  of  release  of  sureties  is 
waived  by  consent  to  dissolution  of  injunc- 
tion for  which  bond  was  given — Kraeger  v. 
Warnock,  114  N.  Y.  St.  Rep.  687. 

37.  Temporary  injunction — Stewart  v. 
Pierce,  116  Iowa,  733. 

38.  For  injunction  bond — Sanders  v. 
Ditch,    107  La.    333. 

39.  Delaying  two  years  to  move  against 
an  order  allowing  counsel  fees  for  probating 
will  does  not  defeat  right  to  appeal  from 
orphans'  court's  order  refusing  to  vacate 
such  order — Hamilton  v.  Shillington,  19  App. 
D.  C.  268. 

40.  West  V.   West,   23   Ky.  Law  Rep.   1645. 

41.  Ball  V.  Wright,   115  Ga.  729. 

42.  Bergkofski  v.   Ruzofski,   74  Conn.   204. 

43.  Da  Costa  v.   Dibble     (Fla.)    33    So.    4&6. 

44.  He  did  not  rest  his  case  nor"  move  to 
open  the  nonsuit — Appeal  of  White  (Conn.) 
53  Atl.  582. 

45.  Writ  of  error  allowed  after  dismissal 
of  appeal — Burdick  v.  Security  Life  Ass'n,  91 
Mo.  App.  529;  Reed  v.  Kimsey,  98  111.  App. 
.364.  Certiorari  conclusive  of  jurisdiction  only; 
therefore  no  election — Porter  v.  Butterfleld, 
110  Iowa,   725. 

46.  Platte  Land  Co.  v.  Hubbard  (Colo.) 
69  Pac.   514. 

47.  Certiorari  and  appeal — Furman  v. 
Motley,  67  N.  J.  Law,  174. 


88 


APPEAL  AND   REVIEW. 


ment  on  review  must  be  final,  to  destroy  the  right  to  further  review.*'  The  op- 
posite party  may  bring  error  after  an  appeal  if  the  review  was  only  partial,*®  if 
he  has  assigned  no  cross-errors."^"  A  loss  of  the  right  to  review  an  order  nisi  by 
adoption  and  affirmance  draws  with  it  the  right  to  appeal  from  an  absolute  order 
which  follows. °^ 

C.  Pendency  of  a  former  appeal  is  ground  for  dismissal  of  a  second,"*-  unless 
the  appeals  are  from  determinations  which  lack  identity.^^ 

§  2.  The  remedy  for  obtaining  review.^*  A.  Appeal  or  error. — An  action 
for  violating  an  ordinance  being  civil,  and  not  criminal,  is  re\iewable  only  as  other 
civil  actions.^^  Federal  courts  review  decrees  by  appeal,  judgments  by  error  ;^^  and 
this  is  the  general  ride/^  though  in  some  states  error  lies  concurrently  with  appeal 
to  the  final  decree  or  order,^^  and  to  some  judgments  error  is  a  statutory  mode 
of  review.^®  In  Illinois  a  chancery  decree  is  reviewable  in  the  trial  court  either 
by  rehearing  or  bill  of  review,  and  in  appellate  courts  either  by  appeal  or  error.®" 
Onl}'  errors  of  law  will  be  reviewed  on  a  petition  in  error,  and  an  appeal  will  not 
reach  such  matters.®^  For  error  on  a  trial  in  equity  in  Nebraska,  error,  and  not 
appeal,  is  the  remedy.®^  Error,  and  not  appeal,  is  the  remedy  in  Colorado  of  one 
who  recovers  judgment,  but  is  dissatisfied  with  the  relief  given.^^  To  be  appeala- 
ble it  must  adjudge  something  against  appellant.®*  Those  cases  which  in  Missouri 
are  reviewable  without  final  judgment  must  be  reviewed  by  appeal.*^^  In  Illinois, 
writ  of  error  will  lie  to  an  invalid  decree  appointing  conservators  of  insane  persons, 
though  there  is  also  an  appeal  to  the  circuit  court.®®  It  makes  no  difference  that 
parties  agreed  to  try  the  cause  on  the  wrong  side  of  the  court.®'^  If  it  be  doubtful 
which  is  right,  both  methods  may  be  pursued,  and  the  reviewing  court  will  follow 
the  correct  procedure.®^  Appeal  will  lie  to  a  certiorari  improperly  begun.®"  A 
writ  of  error  will  lie  to  a  court  of  record  to  review  a  decision  for  which  no  statu- 


4S.  Appeal  and  -writ  of  error — Harburg 
V.  Arnold.  87  Mo.  App.  226.  Judgment  on 
procedendo — Johnson  v.  Murphy,  107  Tenn. 
558. 

49.  Armljo  V.  Neher    (N.  M.)    68  Pac.   914. 

50.  Rector  v.  Hartford  Deposit  Co.,  102 
111.  App.  554. 

51.  Order  nisi  opening  default  judgment 
— San  Bernardino  County  v.  Riverside  Coun- 
ty, 135  Cal.  618.  67  Pac.  1047. 

52.  Swortflguer  v.  White,  134  Cal.  xx., 
66  Pac.  80. 

53.  Two  applications  for  two  different 
railway  locations — Appeal  of  Cherryfield  & 
M.  E.  R.  Co..  95  Me.  361.  To  different  parts 
of  transaction — State  v.  Tolman,  106  La.  662. 

54.  How  to  proceed,  see  post,  §§  4-11. 

55.  Appeal  and  not  error — Madison  v. 
Horner     (S.  D.)    89  N.  "W.   474. 

56.  Highland  Boy  Min.  Co.  v.  Strickley 
(C.  C.  A.)    116  Fed.   852. 

57.  Uecker  v.  Magdanz,  62  Neb.  618;  Van 
Doren  v.  Empkic-Shugart  Co.  (Neb.)  90  N. 
"W.  220.  In  New  Jersey  circuit  court  judg- 
ments are  open  to  error  only — Morse  v. 
State    (N.  J.  Law)  53  Atl.  693. 

Proceeding  to  disconnect  land  from  mu- 
nicipality is  at  law — Heebner  v.  Orange  City 
(Fla.)  32  So.  879.  Executor's  application  to 
sell  land  is  at  law  and  not  in  equity — In  re 
Entenmann  (Xeb.)  89  N.  "W.  1033.  Mandamus 
l3  at  law — Jabine  v.  Gates,  115  Fed.  861. 
Error  lies  to  judgment  in  eminent  domain — 
Denver  Power  Co.  v.  Denver  &  R.  G.  R.  Co. 
(Colo.)  69  Pac.  568.  A  proceeding  before  a 
probate    court   to    open    a   decree    of   probate 


is   equitable  (Code  Civ.  Proc.  §    675) — "Williams 
V.  Miles,  63  Neb.  859. 

58.  Bannard  v.  Duncan  (Neb.)  90  N.  W. 
947. 

59.  To  judgments  in  the  supreme  court 
under  the  Railroad  Tax  Act,  §  28,  error  lies — 
State  V.  Erie  R.  Co.  (N.  J.  Err.  &  App.)  50 
Atl.   918. 

60.  Mathias  v.   Mathias,   104  111.  App.   344. 

61.  Hume  V.  U.  S.  (C.  C.  A.)  118  Fed.  689. 
Denial  of  leave  to  amend — Reiss  v.  Argu- 
bright  (Xeb.)  92  N.  "W.  985.  Exclusion  of 
evidence — Kinney  v.  Bittinger  (Neb.)  92  N. 
TV.  1005.  Right  to  jury  trial  of  an  issue  of 
fact — Day  &  Frees  Lumber  Co.  v.  Bixby 
(Xeb.)  93  N.  W.  688.  Admitting  or  exclud- 
ing evidence — Hillers  v.  Teiser  (Neb.)  93  N. 
W.   989. 

62.  Browne  v.  Palmer  (Neb.)  92  N.  W. 
315. 

63 
Pac. 

64.  Colorado  Fuel  &  Iron  Co.  v.  Knudson 
(Colo.  App.)    70  Pae.  698. 

65.  Rev.  St.  1S99.  §  SOG;  Pittsburgh  Plate 
Glass  Co.  V.   Peper   (Mo.  App.)    70   S.   "W.   910. 

66.  Haines  v.   Cearlock.   95  111.  App.   203. 

67.  Hooven,  Owens  &  Rentschler  Co.  v. 
John  Featherstone's  Sons  (C.  C.  A.)  Ill  Fed. 
81,  49  C.  C.  A.  229,  holding  that  enforcement 
by  foreclosure  of  mechanic's  lien  is  in 
equity. 

68.  Appeal  and  error — Hooven,  Owens  & 
Rentschler  Co.  v.  John  Featherstone's  Sons 
(C.  C.  A.)   Ill  Fed.  81,  49  C.  C.  A.  229. 

69.  People  V.  Feitner,  65  App.  Div.  (N. 
T.)    824. 


Patrick    v.    Morrow     (Colo.    App.)     7t) 
952. 


MODE  OF  PROCURING. 


89 


tory  mode  of  appeal  is  given.'^"  Error  should  be  brought  where  for  some  reason 
the  party  injured  by  a  judgment  has  been  unable  to  avail  of  his  primary  statu- 
tory remedy  by  appeal.'^^  Error  will  not  review  an  order  not  final.'^^  Since  a 
voluntary  nonsuit  is  in  defendant's  favor,  he  cannot  appeal,  but  error  will  lie.''^ 
Error  lies  to  review  nonsuit  or  dismissal  as  to  part  of  def endantsJ* 

B.  Certificate  or  reservation^ — Not  cases,  but  questions  of  law,  may  be 
certified  by  the  circuit  court  of  appeals  to  the  supreme  court,'^  and  only  when  they 
present  a  distinct  legal  proposition  separated  from  the  mass  of  the  record  ;'^^  and 
the  question  must  be  one  upon  which  the  circuit  jildges  are  doubtful  or  desire 
instruction/® 

Mixed  questions  are  not  "questions  of  law"  which  may  be  reserved  or  certi- 
fied."* The  Massachusetts  superior  court  may  report  a  decision  coming  from  the 
registration  court,  though  the  latter  may  also  do  so  direct.®" 

C.  Ordinary  or  extraordinary  and  special  modes  of  review. — Statutory  remedies, 
as  appeal  or  error,  must,  if  adequate  or  applicable,  be  resorted  to,  and  not  certiorari 
or  writ  of  review,®^  or  supervisory  control,®^  or  prohibition,®*  though  prohibition  may 


70.  Decision  of  county  court  on  appor- 
tionment of  property  on  division  of  towns — 
Jamaica  v.  Vance,  96  111.  App.  598. 

71.  Want  of  notice — Haines  v.  Cearlock, 
95  111.  App.  203. 

72.  J.  L.  Gates  Land  Co.  v.  Olds,  112  Wis. 
268. 

73.  Florence  &  C.  C.  R.  Co.  v.  Maloney 
(Colo.  App.)   69  Pac.  270. 

74.  Ellis  V.  Almand,  115  Ga.  333;  Johnson 
V.  Porter,  115  Ga.  401. 

75.  Courts  may  also  specially  order  mat- 
ters to  be  included  in  bills  of  exceptions, 
thus  reserving  questions  which  would  not 
otherwise  go  up.     See  post,  §  9. 

76.  German  Ins.  Co.  v.  Hearne  (C.  C.  A.) 
118  Fed.  134. 

77.  Felsenheld  v.  U.  S.,  186  U.  S.  126. 

78.  German  Ins.  Co.  v.  Hearne  (C.  C.  A.) 
118  Fed.   134. 

79.  Burns'  Rev.  St.  1901,  §  642 — Lautman 
V.  Miller,  158  Ind.   382. 

SO.  See  Statutes — Lancy  v.  Snow,  180 
Mass.  411. 

81.  Eels  v.  Bailee  (Iowa)  92  N.  W.  668;  P. 
L,.  1899,  p.  552,  §  6 — Smith  &  Co.  v.  Holshauer 
(N.  J.  Sup.)  52  Atl.  308.  Temporary  injunc- 
tion— Parker  v.  Superior  Ct.,  25  Wash.  544,  66 
Pac.  154,  but  certiorari  was  allowed  as  to 
part  of  it  because  appeal  was  too  slow  and 
relief  doubtful.  Distribution  of  an  estate,  ap- 
pealable (Code  Civ.  Proc.  §§  1721.1722) — State 
V.  District  Ct.,  26  Mont.  378,  68  Pac.  411. 
Action  for  violation  of  ordinances  appeal- 
able— State  V.  Lockhart,  28  Wash,  460,  68 
Pac.  894.  Appeal  not  too  slow  to  review 
denial  of  discharge  of  receiver — State  v.  Su- 
perior Ct.,  28  Wash.  584,  68  Pac.  1052.  Order 
of  distribution  under  earlier  will  probated 
pending  appeal  from  annulment  of  former 
probate,  appealable — State  v.  Superior  Ct., 
28  Wash.  677,  69  Pac.  375.  Restraining  or- 
der— State  v.  Superior  Ct.,  30  Wash.  177,  70 
Pac.  256.  Certiorari  proper  where  no  detri- 
ment had  yet  befallen — Huyser  v.  School  In- 
spectors (Mich.)  91  N.  W.  1020.  Denial  of 
motion  to  dismiss  an  appeal  from  a  justice's 
Judgment  (Code,  §  4154) — Eels  v.  Bailee 
(Iowa)  92  N.  W.  668.  Dismissal  of  appeal 
for  failure  of  the  sureties  on  the  bond  to 
justify  is  not  an  excess  of  jurisdiction,  hence 
certiorari    is    not    the    remedy — State    v.    Dis- 


trict Ct.  (Mont.)  70  Pac.  516;  nor  are  rulings 
sustaining  objections  to  introduction  of  evi- 
dence on  the  ground  that  the  complaint 
stated  no  cause  of  action  dismissing  It,  dis- 
charging jury  and  entering  judgment — State 
v.  District  Ct.  (Mont.)  70  Pac.  981.  Judg- 
ment in  favor  of  materialman  against  owner 
reviewable  by  appeal  and  not  by  writ  of  re- 
view— Weldon  v.  Superior  Ct.,  138  Cal.  427, 
71  Pac.  502.  Appeal  lies  from  district  court 
judgment  on  appeal  from  mayor's  court — 
State  V.  Miller  (La.)  33  So.  739.  Motion  to 
postpone  disbarment  proceedings  for  ab- 
sence of  witnesses  and  shortness  of  time  is 
reviewable  on  appeal — State  v.  District  Ct. 
(Mont.)   71  Pac.  159. 

Certiorari  is  proper  to  review  lunacy  pro- 
ceedings— State  V.  Jackson,  93  Mo.  App.  516. 
In  Pennsylvania,  the  merits  cannot  be  re- 
viewed in  inquisition  of  lunacy,  because  no 
way  is  provided  to  bring  the  evidence  into 
the  record,  the  review  being  by  certiorari — 
Commonwealth  v.  Harrold    (Pa.)    53  Atl.  760. 

82.  Denial  of  survey  and  inspection  of 
mining  claim — State  v.  District  Ct.,  26  Mont. 
274,  67  Pac.  625. 

83.  In  re  Huguley  Mfg.  Co.,  184  U.  S.  297; 
Johnston  v.  Hunter,  50  W.  Va.  52.  Appeal 
pending  from  injunction  against  enforce- 
ment of  ordinance — People  v.  District  Ct.,  29 
Colo.  1.  66  Pac.  888.  New  trial  in  violation 
of  mandate  on  reversal;  appeal  lies — King 
V.  Doolittle.  51  W.  "Va.  91.  Removal  of  po- 
lice commissioners — People  v.  Sherman,  171 
N.  Y.  684;  affirming  66  App.  Div.  231.  Re- 
view of  special  assessment  appeal  lies — Peo- 
ple V.  McCue,  74  App.  Div.  (N.  T.)  302.  Er- 
rors curable  by  nunc  pro  tunc  entry  which 
will  be  appealable — Wand  v.  Ryan,  166  Mo. 
646. 

Want  of  jurisdiction  assailable  by  cer 
tiorari — People  v.  De  France,  29  Colo.  309, 
68  Pac.  267.  Error  on  motion  for  change  of 
venue  not  reviewable  bj'  prohibition — -People 
V.  District  Ct.  (Colo.)  71  Pac.  388.  Action  of 
lower  court  on  appeal  from  county  commis- 
sioners is  reviewable  by  appeal  and  not  pro- 
hibition— State  v.  Neal,  30  Wash.  702,  71 
Pac.  647.  Proceedings  on  application  for 
distribution  of  an  estate  reviewable  by  ap- 
peal and  not  prohibition — State  v.  Superior 
Ct..  30  Wash.  700,  71  Pac.  648.    Judgment  im- 


90 


APPEAL  AND   REVIEW. 


lie  concurrently  with  appeal  if  jimsdiction  is  totally  divested.**  or  if  irreparable 
injury  wonld  follow  a  resort  to  appeal  or  error.^'  An  appeal  is  not  inadequate 
merely  because  expensive,  dilatory,  and  annoying.^*  Like  rvles  apply  to  man- 
damus,*^ which  does  not  lie  to  review  judicial  acts.^ 

Mandamus,  not  appeal  or  error,  is  the  remedy  for  refusal  to  settle  a  bill  of  ex- 
ceptions.** If  the  refusal  of  the  district  court  to  dismiss  an  appeal  for  insufficiency 
of  the  bond  be  complained  of,  an  order  refusing  to  dismiss  should  be  appealed,  or 
mandamus  brought  to  increase  the  bond-** 

Suspension  of  an  attorney  with  application  or  notice  is  open  to  a  'Vrit  of  re- 
view" or  certiorari-**  The  provision  that  one  of  the  class  of  actions  over  which 
the  cLrcuit  court  of  appeals  has  final  jurisdiction  may  be  brought  to  the  su- 
preme court  **by  certiorari  or  otherwise*'  means  by  other  proceeding  of  the  same 
kind  as  certiorari ;  hence  it  excludes  appeal"  To  review  an  unjust  judgment,  ap- 
peal from  which  has  been  prevented  by  the  adversary,  certiorari,  if  applicable,  and 
not  injunction,  is  the  remedy;**  but  injunction  may  isue  instead  of  appealing  if 
jurisdiction  has  failed-**  An  order  or  judgment  will  not  be  controlled  by  injunc- 
tion if  appeal  or  error  afford  a  remedy,**  nor  nullified  by  habeas  corpus  if  other- 
wise reviewable  or  adequately  remediable.**  Especially  wiQ  it  be  seldom  done  if 
the  action  of  a  state  court  is  thus  brought  to  a  federal  court**  Proceedings  of  the 
district  court  as  distinguished  from  those  of  the  judge  under  the  Chinese  exclusion 
act,  being  appealable,  are  not  reviewable  by  this  remedy.** 

Concurrent  modes  of  review  may  present  an  election.^     Appeal  may  lie  ia  the 


p:?:rg  zi~2.'.-.-  for  contempt  by  error  and 
not  by  prciiibition — Alchele  v.  Johnson 
(Colo.)   71  Pac  367. 

54.  By  ch-.-ee  of  Tenue — People  v.  Dis- 
trict Ct-     C  Pac  597. 

55.  Ext  :  -  r  r  :'  manner  in  which  voters 
V r : T i  "■:  r  :  r  r.  controversy — State  v. 
5  r  r  r. :  r  r  1  '  ?  I ;  - '  -  ?.  eceivership  proceed- 
ir.^s      \t;ti:    : ;  :     i..- — Gates    v.    McGee.    15 

S-d.  S.i-.e  V.  Superior  Ct..  30  Wash.  700.  71 
p-7  -•i-'  ^----  •;".  taking  jurisdiction  is  re- 
■■■  --         -  not  prohibitlor. — 5:i:e 

s_:_rr     r  ?1  Pac  722. 

S7.     Remedy     i  t     nrip^*!— In     re     rLis:.^-'/ 
ilzs.  C:..  1S4  V    ~     -    '     ^:  Law.  E-i.  ' -:  -      Z:  :.- 
C    -     F--"      ^    ■---'  —  -      ^    V.    "Wesicv^r       Ne: 
;  ^    ::    ~'  _       '     ;  :o  issue  ::  — —  :?;:: ' 


132 

is     z. 
X.  v; 


Dismissal  of  appeal  on  conrrs  modon  en-  i 


titles  either  party  to  entry  of  judgment 
■which  may  be  revievred  on  error,  heuce 
mandamus  to  compel  vacation  of  dismissal 
is  wrong — ^Detroit,  G.  R.  &  "W.  R.  Co.  v. 
Eaton  Cir.  Judge.   128   Mich.   495. 

Interlocutory  vacation  of  dismissal,  not 
appealable — ^Eir  parte  Jones.  133  Ala.  212. 
Appeal  from  commitment  for  contempt  too 
slow — ^Dillon  V.  Shiawassee  Cir.  Judge 
(IGch.)  91  X.  "W.  1029.  Appeal  and  not  man- 
damus is  the  remedy  •where  a  court  decides 
-----  the  complaint  states  no  cause  of  action. 
r^es  the  jury  and  enters  judgment  for 
nt — State   v.   District    Ct.    (Mont.)    70 

r  Mandamus. 
'   .  .      imson  V.   Joyce.    137   CzL   151.    69 

?    :  I-Iirtford  L.  &  A  Ins.  Co.  v.  Rossi- 

r-     _        :       2TT:  aSmiing  98  IlL  App.  11. 
\n.  3ank  v.  Blaise   iLa.)    33 

v2.     :_:__-  Steele    (Idaho)    69    Pac 

'o.      Act  of  Congress,  March  3.  1891.  c  517. 
~::    -        y  Mfg.   Co.  V.  Galeton  3Jills,   184 
V    ;    .         T     il.aw.  Ed.  545. 

■4  man  v.  Kane.   97  IlL  App.  567. 

-raent  on  ne\r  trial  granted  with- 
-Smith  V.  Carroll  (Tex.  Civ.  App.) 

Z:    rir  — ent     of     ordinance,      appeal 

— "      r  Jennings.    107    lia.    410.       In- 

:  I  available  to  one  -who  failed  to 

— ::    ".3  V.  Richardson  (Tex.  Civ.  App.> 

"      -  ; .-.     Injunction  may  lie  if  because 

^    -  :    right  of  api>eal  plaintlft   would 

_~    r    r  ;:  less — Board  of  Ctom'rs  v.  Spangler 

:r  ;       io  X.  E.  743. 

97.     In  re  Le^rts.  114  Fed-  963;  but  see  Ex 
T    ~rr?n.  114  Fed.  959. 

~      t::  v.  Massachusetts.  183  U.  S.  138. 
I'j,     :  -  re  Chow  Loy.  110  Fed.  952. 
jL.     Furman  v.  Motley.  67  X.  J.  I.a.w.   174. 


PERSONS  ENTITLED  TO  REVIEW. 


91 


same  cause  wlierein  certiorari  has  been  brought,  being  for  the  review  of  different 
matters.^     The  remedy  by  motion  to  vacate  may  sometimes  concur  with  appeal.^ 

Judgment  for  demurrant  to  a  petition  to  vacate  an  order  in  banlvruptcy  is  re- 
viewable by  petition  under  section  24b  of  the  bankruptcy  act,  and  not  by  appeal 
under  section  25.* 

//  a  cause  has  been  improperly  hrougJit  to  the  circuit  court  of  appeals  on  error, 
certiorari  will  issue  from  the  supreme  court.^  Prohibition  in  similar  cases  must 
issue  before  the  court  below  is  concluded  by  the  Judgment's  becoming  final.®  If  a 
court,  in  refusing  to  remand  a  cause,  acts  within  its  jurisdiction,  certiorari  will 
not  lie,  though  the  court  making  the  transfer  did  exceed  its  jurisdiction.'^ 

§  3.  The  parties.  A.  Persons  entitled  to  take  up  the  cause. — No  person  can 
obtain  a  review  unless  he  has  a  legal  interest  which  is  affected.*  An  interplead- 
ing party  who  has  been  dismissed  cannot  appeal  the  main  cause.**  If  a  partner  of 
an  attachment  debtor  intervene  to  claim  property  for  the  firm,  and  it  be  decided 
against  his  claim,  he  may  appeal.^"  An  intervening  ss'tockbolder  of  an  original 
party  is  a  third  party,  and  may  appeal  from  a  dismissal  of  his  petition,  though  he 
fails  to  make  his  corporation  a  party.^^  A  successful  party  may  appeal  if  there 
was  no  jurisdiction.^^  Any  person  interested  and  aggrieved  may  appeal  from  a 
proceeding  not  inter  partes,  especially  in  probate  and  administration  orders.^^ 

Plaintiff  cannot  say  that  a  defendant  whom  he  sued  lacks  an  appealable  in- 
terest.^* A  mere  lien,  as  that  of  an  attorney,  on  a  judgment,  is  not  an  appealable 
interest  ;^^  but  a  lien  on  the  subject-matter  of  the  judgment  is.^* 

An  appeal  by  the  head  of  an  executive  department  of  a  municipality  is  equiva- 
lent to  an  appeal  by  the  municipality.^^  A  public  oflScer  who  is  agent  for  trans- 
action of  legal  business  may  appeal  without  special  authorization.^*  A  munici- 
pality which  has  no  standing  to  oppose  confirmation  of  a  special  assessment  can- 
not, for  lack  of  grievance,  appeal  from  a  refusal  to  confirm.^*  An  action  for  pen- 
alties being  civil,  the  state  may  appeal.^" 


2.  Porter  v.  Butterfield,  116  Iowa,  725. 

3.  Order  for  final  settlement  made  with- 
out notice  to  co-executor  may  be  attacked 
by  motion  in  orphans'  court  to  set  aside  as 
well  as  by  appeal — Yakel  v.  Yakel,  96  Md. 
240. 

In  re  Ives  (C.  C.  A.)  113  Fed.  911. 
Security  Trust   Co.   v.   Dent,    187   U.   S. 


Klingelhoefer  v.  Smith   (Mo.)    71  S.  W. 
State  V.  Circuit  Court  (Wis.)   93  N.  W. 


4. 
5. 

237. 
6. 

1008 
7. 

1ft. 

8.  If  neither  a  party  nor  a  privy  the  rec- 
ord must  show  interest — J.  L.  Gates  Land 
Co.  V.  Olds,  112  Wis.  268.  Must  be  party  to 
suit  or  Judgment — Carlson  v.  Gilbert,  99  111. 
App.  574;  Ackerman  v.  People,  Id.  576.  Vol- 
untary appearance  and  answer  recognized 
by  court  suffices — Richey  v.  Guild,  99  111. 
App.  451.  Abstract  questions  not  heard — 
McComb  V.  Title  &  Trust  Co.  (N.  Y.)  36  Misc. 
370. 

Foreclosure  decree  setting  aside  a  con- 
veyance and  revesting  title  in  an  interme- 
diate grantee,  who  assumed  the  mortgage, 
does  not  aggrieve  the  original  mortgagor — 
Gandy  v.  Coleman,  196  111.  189. 

9.  Warner  v.  Crandall,  88  Mo.  App.  321. 

10.  Hopkins  v.  Prichard,  51  W.  Va.   385. 

11.  Massey  v.  Louque  (La.)  33  So.  764; 
White  V.  Louque,  Id. 

12.  Libelant  in  divorce — English  v.  Eng- 
lish,  19   Pa.   Super.  Ct.   586. 


13.  Probate  or  refusal  thereof — In  re 
Cartright's  Will  (N.  J.  Eq.)  51  Atl.  713. 
Trustees  of  a  cemetery  in  which  a  vault  was 
to  be  built  and  who  were  to  take  a  legacy 
upon  a  trust  In  case  the  legatee  should  die. 
have  no  Interest  to  appeal  from  a  refusal 
of  probate — People  v.  McCormick,  201  111. 
310.  Board  of  medical  examiners  if  ag- 
grieved by  decision  of  district  court  on  ap- 
peal from  their  action  on  application  for  a 
license,  may  appeal  to  supreme  court — State 
V.  District  Court  (Mont.)  69  Pac.  710.  Heirs 
can  appeal  decree  to  sell  lands — Kronen- 
berger  v.  Heineman,  104  111.  App.  156.  Comp. 
St.  c.  20,  §  42,  surviving  husband  of  deceased 
wife  has  Interest  In  accounting  of  adminis- 
trator who  collected  rents  of  land  In  which 
husband  had  life  estate — In  re  Gannon's  Es- 
tate (Neb.)  89  N.  W.  1028;  Gannon  v.  Phe- 
lan.  Id. 

Probate  surety  cannot  appeal'  from  final 
settlement — Shaw  v.   Humphrey,    96   Me.    397. 

14.  State  V.  Cranney    (Wash.)    71   Pac.   50. 

15.  Attorney  for  deceased  plaintiff — Bar- 
ton V.  New   Haven,   74  Conn.   729. 

16.  Mortgagee  of  lands  condemned — 
Omaha  Bridge  Co.  v.  Reed  (Neb.)  92  N.  W. 
1021. 

17.  People  V.  Sturgls   (N.  Y.)   30  MiscT.  596. 

18.  Township  supervisor — Long  v.  Ionia 
Probate  Judge    (Mich.)    89  N.   W.   938. 

19.  Construing  Yonkers  Charter,  tit.  7,  §5 
10,  11 — In  re  Nepperhan  St.  in  Yonkers  (N. 
Y.)   71  App.  Div.  534. 


92 


APPEAL  A>rD  RiTV !  if W. 


meiL: 
icfc- 

tms: 
he 


.:-:~-'i  by 


aganisit  ft  dis :.;:::. -II - 
SDlfs  pikft  vl:       ^ 
and  the  detr-" 
ovner  with  ' 

plaint.**     O: 

fulpaifyhsi  -     -  :.-'.  :       -   i  r_ 
one  vho  is  r  :  i. 

If  in  d<e:                  : ::   i^i 
jnrisdictiaaDSL     --r::-         A  '".,,-:-:'-.i; 
buBt  failnre  t:  :"  ~         . :: 

Thjomgk 
A  coTemanljcr  :  :  '.:.-  ..^..r:.  Ji  :•: 
ooi^enaniieefs  ~  :  i.:  ■  :  ^  r '  ^'  - 

ning  of  cjecirii-  >  - '  : '  r 

B.  Necessary  ot  ^r^r^-ir  pariu-i 
appdlee;^  and  if,  bj  deatih  of  ft  par^^ 
tive,  there  is  naane,  jarigdicliom  fails. 

Co-parties  need  not  appeal  or 
aggdevcdr  maj  appeal  as  of  ligii: 


ions  on  a  c: 
::5r  to  an 


.  _  J I  .;..-__ 


Xo 


IT  prouc 
t©  SBhrr. 


aft.    Sttate  V.  "WalfciHrs-Pleroe  Oil  Osl    {Tex.  1  N" 
C3v.  AtV^}  «T  s.  W^.  i«e7.  " 

SI.    I^txmtiora   of  oosts   to  one    :'    Sr~e7\- 
fmids  of  ttlae  estate — Gzsltill  ~    ~  1  u  n  ~'  -  ~ 
MO.  SSl    Decxee  irtiidi  applies 
the  daim  of  a.  particular  er-L . : ;  r    r  z ;      ' .  ~  r 


the  otheis — <Ttiii«wi  v.  Onrtis. 
15fi3L 

a&    Ak  execmtor — State  v     _    ;:r   ::    T:      2S 

Moiati  36%.  SS  Pac  S3C.    

Sft.    In  re  StapHeton's  IK^H     :'     -  .^77'- 

Drv.  1. 

ML    TiiiniiTiiiglhiast  ▼.   Brows:     _' 
Li)  33  JLtL  SSI. 

SS.     Smtton  V.  "Welber.  im  :  -  -    .-^:  v 

at    ArmoM  v-  Carter,  19  .-. 

27.    BUd^r  -v.  AdajBBS.  1S9  : : 

SS.    Im  re  Dittmait   (SI-   T  L  . 

aft.    steams  Banchos  Gol  -^    M  :  _  :  -  ^  /. 
CalL  set.  SS  Bac  722. 

aft  Both  -Vr*—*'**  lisAts 
of  a  dasa.  Jteeaotse  of  deffec. 
tie  -v^.  Madisoin.  113  Wis.  34S. 

Sa.    Toanser  ▼•  Soverior  Ct,  13S  Gal.  i  • : 
C9  Pac  4SSl 

3ft.    Stcarm-Boger  Ufg:  Co.  ▼.  Brown  <C 

C    JL^    ::-■    r;r    '-9:  PortlaJd  GL  M.  Oo.   - 


aft      JkSEL.  : 
T.  DdBUO- 

doraain  p? : 
■V.  Bear  CT: 

ST.     Pi- :  : 

X.  T.)    Ti 


ad- 

9S. 


34.      Ht 


Hon  &  Gol  ▼.  lieisrally. 


NECESSARY  PARTIES. 


93 


served  or  brought,  need  not  join  in  the  appeal,  though  a  necessary  party  to  the 
action.*^  Licensee  of  patent  may  appeal  in  patent  case  without  the  patentee.** 
Defaulting  defendants  need  not  be  joined  with  appellees  who  answered.*'^  Under 
statutes  permitting  part  of  co-parties  to  appeal  in  the  names  of  all,  all  must  be 
joined,*^  or  at  least  named  as  appellants.*^  Co-defendants  may  unite  as  on  original 
action  if  the  judgment  be  on  a  cross  complaint.^"  Persons  who  were  heard  to  plead 
or  demur  are  parties.^^  Defect  of  parties  is  not  cured  by  the  fact  that  on  an  inde- 
pendent appeal  they  are  impleaded.^^ 

In  Indiana,  vacation  appeals  must  bring  in  all  parties,^^  though  different  kinds 
of  relief  be  granted,  and  one  party  be  not  affected.^*  The  statute  does  not  require  it 
in  term-time  appeals.^'^ 

All  the  parties  who  may  be  affected  by  a  reversal  should  be  brought  in,°* 
in  order  to  give  jurisdiction."^^  All  joint  defendants  must  be  brought  in,  or  else 
a  severance  of  interest  in  the  judgment  must  appear  on  record.^^  If  the  success 
of  an  appeal  may  leave  too  large  a  judgment  standing  against  a  co-party,  he 
should  have  notice  of  the  appeal  to  bring  him  in.^'-*  A  co-beneficiary  of  a  deed 
has  an  interest  which  makes  him  a  necessary  party  if  the  deed  is  to  be  set  aside. ^° 
A  receiver  is  necessarily  affected  by  writ  of  error  to  a  judgment  settling  his  final 
report.^^  All  who  by  a  supplemental  pleading  stand  as  adverse  to  appellant  must 
be  made  appellees  to  an  appeal  from  a  dismissal  of  it  as  a  whole.®^  Attorneys 
for  poor  persons  accused  of  crime  are  the  adverse  parties  who  must  be  cited  when 
the  county  appeals  from  an  allowance  of  fees  to  such  attorneys.^^ 

Proper  parties. — An  administrator  cannot  have  a  person  to  whom  money  was 
paid  made  party  on  appeal  from  an  accounting  in  order  to  have  judgment  against 
him  in  case  of  disallowance.®* 

Successors  in  title  and  interest  and  substituted  parties. — A  personal  repre- 
sentative has  sufficient  title  to  bring  error  without  a  revival  of  the  judgment,®^ 
but,  if  the  interest  be  one  which  passes  to  heirs,  the  revival  should  be  in  their 


45.  Hooven,  Owens  &  Rentschler  Co.  v. 
John  Featherstone's  Sons  (C.  C.  A.)  Ill 
Fed.   81. 

46.  Latter  refused  to  appeal — Excelsior 
Pipe  Co.  V.  Seattle   (C.  C.  A.)   117  Fed.  140. 

47.  Kaufmann  v.   Preston,    158   Ind.    361. 

48.  3  Starr  &  C.  1896,  p.  3099,  §  70 — Cooke 
V.  Cooke,  194  111.  225. 

49.  Burns'  Rev.  St.  1901,  §  647,  allows  part 
to  appeal;  held  not  sufficient  to  join  others 
as  appellees  in  assignment  of  errors — Smith 
V.  Fairfield,  157  Ind.  491. 

50.  Downing  v.  Rademacher,  136  Cal.  673, 
69  Pac.  415. 

51.  Commissioners  in  suit  against  sheriff 
— Small  V.  Edwards,  65  Kan.  858,  69  Pac.  165. 
Voluntary  appearance  and  answer  permitted 
— Richey  v.  Guild,   99  111.  App.   451. 

52.  Collateral  appeals  from  foreclosure  of 
lien — Hall  v.   New  York,   79   App.  Div.   102. 

53.  Burns'  Rev.  St.  1901,  1  647 — Brown  v. 
Sullivan,  158  Ind.  224. 

54.  Mellott  V.  Messraore,  158  Ind.  297. 

55.  Burns'  Rev.  St.  1901,  §  647a — Gunn  v. 
Haworth  (Ind.)  64  N.  E.  911. 

56.  Schrage  v.  McCoy,  28  Ind.  App.  434; 
Moyer  v.  Badger  Lumber  Co.,  64  Kan.  885, 
67  Pac.   852. 

On  appeal  from  confirmation  of  sale,  the 
purchasers  should  be  brought  in — Phillips 
V.  Keel,  24  Ky.  Law  Rep.  1752.  On  fore- 
closure of  sale  of  land  by  assignee  of  the 
notes  the  vendor  if  held  as  a  warrantor  has 
such  an  interest  as  to  make  him  a  necessary 


party — Massie  v.  Louque  (La.)  33  So.  764; 
White  v.  Louque,  Id.  Mortgagor  against 
whom  deficiency  is  awarded  must  be  made 
party  to  appeal  by  lienor  claiming  above 
the  mortgage,  though  after  he  be  adjudged 
bankrupt — T.  C.  Power  &  Bro.  v.  Murphy 
26  Mont.  387,   68  Pac.   411. 

Unaffected  ones  may  be  omitted — Coler  v. 
Allen  (C.  C.  A.)  114  Fed.  609.  Disclaiming 
parties  not  necessary  or  proper — Smalley  v. 
Laugenour    (Wash.)    70  Pac.   786. 

57.  Willits  V.  Harlan  County  (Neb.)  90  N. 
W.  656. 

58.  Fitzpatrick  v.  Graham  (C.  C.  A.)  119 
Fed.  353. 

59.  Appellant  was  the  co-party's  grantee 
and  sought  to  establish  a  deficiency  in  acre- 
age, which  would  have  lessened  the  co- 
party's  liability  for  purchase  money — Clay^ 
ton  V.  Sievertsen,   115  Iowa,   687. 

60.  Arnett  v.  McGuire,  23  Ky.  JjBlw  Rep. 
2319. 

61.  Haigh  v.  Carroll,  197  Dl.  193. 

62.  Kreuter  v.  English  Lake  Land  Co. 
(Ind.)   65  N.  E.  4. 

63.  Green  Lake  County  v.  Waupaca  Coun- 
ty, 113  Wis.  425. 

64.  James  v.  Craighead  (Tex.  Civ.  App.) 
69  S.  W.  241. 

65.  Haines  v.  Cearlock,  95  111.  App.  203. 
Personal  representative  may  continue  ap- 
peal from  divorce  decree  and  grant  of  ali- 
mony after  death  of  both  parties — Coffman 
V.  Finney.  65  Ohio  St.   61,  55  L.  R.  A.   794. 


94 


APPEAL  AND  REVIEW. 


names.*'  If  admimstration  is  tmiiecessary,  and  the  heirs  are  brought  in,  failure 
to  substitute  an  administrator  of  a  deceased  party  does  not  vitiate  jurisdiction.^' 
The  administrator  of  a  receiver  should  be  substituted  when  the  appeal  concerns 
personalty  in  his  hands.'®  When  the  plaintiff  in  a  personal  injury  case  has  died 
before  the  transcript  is  filed,  the  appeal  is  perfected  in  Indiana  by  substituting  the 
personal  representative  as  appellee  and  serving  him  with  notice  of  appeal.^®  It  is 
not  necessary  to  bring  in  transferees  pendente  lite  if  no  abatement  thereby  re- 
sults;"" nor  to  make  a  substitution  for  one  who  dies  pending  appeal."^  Therefore, 
on  the  death  of  a  co-plaintiff  in  error,  the  right  to  revere  an  erroneous  judgment 
is  in  the  survivors;'-  but  there  must  be  an  adversary  in  court  either  by  appearance 
or  substitution.'' 

§  4.  Adjudications  which  may  be  reviewed.  A.  Statutes  and  legislation. — 
The  appealability  of  a  judgment  may  be  retroactively  changed  or  destroyed."*  An 
act  taking  away  jurisdiction  of  certain  judgments  will  operate  on  all  those  subse- 
quently rendered,  but  a  further  provision  that  it  shall  apply  to  all  causes  pending 
in  inferior  courts  at  the  time  does  not  make  it  retioact  on  judgments  already  ren- 
dered and  subject  to  review;"'  but  an  act  repealing  a  restrictive  act  does  not,  ipso 
facto,  give  jurisdiction  to  review  judgments  which,  being  rendered  while  the  earlier 
act  was  in  force,  were  not  at  the  time  reviewable."'  Provisions  allowing  the  legis- 
lature to  limit  and  regulate  the  appellate  jurisdiction  given  by  the  constitution 
should  not  be  construed  to  authorize  the  destruction  of  the  right  of  appeal.^* 

B.  Dependent  on  the  general  form  or  the  character  of  the  adjudication.  1. 
Nature  of  decision  in  general. — Nonjudicial  acts'®  and  ministerial  orders  are  not 
reviewable,^  and  hence  "action  or  suit^'  which  is  appealable  does  not  include  a 
proceeding  to  obtain  a  vessel  license  from  the  district  court  of  Alaska.*^  Xor  can 
an  act  be  reviewed  which  is  for  the  judge,  and  not  for  the  court.*-  The  action  of 
a  justice  cannot  be  reviewed  under  a  statute  giving  an  appeal  from  decisions  of  a 
court.*'  A  pro  forma  decree  without  reference  to  the  merits,  but  to  allow  the  case 
to  go  up,  will  not  be  reviewed.-*     A  futile  review  will  not  be  made." 


66,  Uriau  v.  -^eeth   (Neb.)   89  N.  "W.  427. 

67.  Applied  where  gnardian  died  pending 
appeal  from  settlement  of  his  account — 
Magness  v.  Berry  (Tex.  Civ.  App.)  69  S.  "W. 
987. 

6S.  State  V.  German  Esch.  Bank.  114  "Wis. 
436. 

69.  Western  Union  Tel.  Co.  v.  Adams.  28 
Ird.  App.  420. 

.0.  Code,  §  3476 — ^Emerson  v.  Miller.  115 
Iowa,  315. 

71.  Code.  §  4150 — ^Williams  ▼.  Williams. 
115  Iowa,  520. 

72.  Administrator  need  not  be  brought  in 
— Jameson  v.  Bartlett,  63  Xeb.  638.  holding 
that  the  "right  of  action"  which  survives 
under  Code  Civ.  Pr.  5  45S,  is  the  right  to  re- 
▼ersai 

73.  Barton  v.  Xew  Haven.  74  Conn.  729. 
75.     Statutes  may  retroactively  take  away 

appeal  (Act  March  12.  1901.  5  6) — Fitch  v. 
Long  (Ind.  App.)  64  X.  E.  622.  Act  March 
12,  1901.  took  a^vay  right  to  appeals  from 
justice's  court  ■which  •were  not  perfected  un- 
til after  the  act,  though  the  judgment  was 
rendered  and  appeal  taken  before — Southern 
Indiana  R.  Co.  v.  Thompson.  27  Ind.  .A.pp. 
36".  Right  of  appeal  from  judgment  of  court 
of  claims  was  taken  away  by  the  Act  of 
Congress.  March  3.  1S9T.  c.  3S7.  though  ap- 
peal had  already  been  made  and  notice  given 
— ^District  of  Columbia  v.  Eslin,  183  U.  S.  62. 


The  act  repealing  the  right  to  appeal  from 
the  opening  of  a  default  in  a  municipal 
court  is  operative  only  as  to  actions  sub- 
sequently commenced  (Laws  1902,  c  5S0,  ?§ 
257.  261  ^ — Johnson  v.  Manning,  114  X.  T. 
St.  Rep.  738. 

76.  Act  May  12.  1902.  limiting  jurisdic- 
tion of  supreme  court — (Jompf  v.  Wolfinger 
(Ohio)    65  X.  E.  S78. 

77.  Act  Oct.  22,  1902,  repealing  Act  May 
12,  1902 — Gompf  v.  WoLBnger  (Ohio)  65  N. 
E.  878. 

78.  Const,  art.  8,  §  3 — Finlen  v,  Heinze 
(MonL)   70  Pac.   517. 

79.  Refusal  by  collector  to  permit  transit 
of  Chinese — Fok  Tung  To  v.  U.  S.,  185  U.  S. 
296. 

80.  Proceeding  by  probate  court  under  94 
Ohio  Laws.  pp.  332.  333 — Casper  v.  Xorris,  23 
Ohio  Cir.  C^  119.  Grant  or  refusal  of  liquor 
license  is  quasi-judicial  and  appealable — 
State  V.  Alliance  (Xeb.)   91  X.  "W.  387. 

SI.  Pacific  Steam  Whaling  Co.  v.  U^  S., 
187  U.  S.   447. 

82.  Appointment  of  a  notary — Stein- 
heimer  v.  Jones.   114  Ga.  349. 

83.  Denial  of  certiorari — Inhabitants  of 
Brockton  V.  Plymouth  County  Comrs  (Mass.) 
66  X.  E.  427.  Error  does  not  lie  from  judg- 
ment of  supreme  justice  in  habeas  corpus 
to  supreme  court — Ex  parte  Cox  (Fla.)  33 
So.  509. 


ADJUDICATIONS  REVIEWABLE. 


95 


The  judgment  must  have  been  completed  or  perfected,  as  well  as  decision  an- 
nounced.^^ The  clerk's  filing  indorsement  is  equivalent  to  entry.^^  It  must  in 
terms  of  certainty  finally  determine  the  rights.^^  An  equity  decree,  filed  with  opin- 
ion findings  and  requests,  is  nisi  until  exceptions  are  heard.^®  "Wlien  conditions  are 
attached  the  judgment  must  show  what  will  be  the  consequence  if  they  are  not 
met.^°  After  judgment  is  entered,  appeal  should  be  from  it,  and  not  from  an 
order  for  judgment. ^^ 

Void  orders  are  not  appealable,^^  nor  are  judgments  which  rest  on  them;"' 
but  an  order  made  on  a  notice  which  was  merely  irregular  is."*  A  void  order  should 
be  first  assailed  by  motion,  and  the  order  thereon  appealed."^ 

Adjudications  founded  on  the  discretion  or  wisdom  of  the  trial  court  are  not 
reviewable,"®  except  where  the  judicial,   and  not  the  absolute,  discretion  is  ad- 


84.  Brown  v.  Brown,  64  App.  Div.    (N.  T.) 

544. 

85.  Ledebuhr  v.  Krueger  (Wis.)  91  N.  W. 
1012.  Error  must  be  one  which  the  court 
can  correct — Rausch  v.  Barrer«  (La.)  33  So. 
602.  Of  injunction  against  holding  election 
after  time  for  it  has  passed — Tampa  Gas  Co. 
V.  Tampa  (Fla.)   33  So.  465. 

Appeals  will  be  dismissed  if  there  is  no 
longer  an  actual  controversy — Wallace  v. 
Deane  (Idaho)  69  Pac.  62;  McGill  v.  Bart- 
man  (Ky.)  68  S.  W.  1100;  Wirth  v.  Wirth. 
181  Mass.  541.  See,  also,  cases  cited  under 
§  11,  post,  "Grounds  for  dismissal." 

86.  Demurrer  sustained  or  overruled  but 
no  judgment  yet  entered  is  incomplete  (Hol- 
lis  V.  Nelms,  115  Ga.  5;  Sloss  Iron  &  Steel 
Co.  V.  Knowles,  129  Ala.  410;  Tutwiler  Coal. 
C.  &  I.  Co.  V.  Bnslen,  129  Ala.  336;  Tinney 
V.  Central  of  Georgia  R.  Co..  129  Ala.  523; 
Memphis  &  C.  R.  Co.  v.  Martin,  131  Ala.  269; 
IMartin  v.  Sherwood,  74  Conn.  202;  Foster  v. 
Bowles,  138  Cal.  449,  71  Pac.  495)  even 
though  the  party  stand  on  his  pleadings — 
Hollingsworth  v.  HoUingsworth  (Ind.  App.) 
64  N.  E.  900.  Sustaining  demurrer  and  re- 
fusing leave  to  plead  over — Turner  v.  Ham- 
ilton (Wyo.)  67  Pac.  1117.  Overruling  de- 
murrer by  one  defendant — Mackenzie  v. 
Judson,  96  111.  App.  26.  Sustaining  demurrer 
and  ordering  dismissal  for  want  of  amend- 
ed pleadings — Harvey  v.  Cochran,  103  111. 
App.  576. 

Judgment  against  plea  to  the  jurisdiction 
—Ross  v.  Mercer,  115  Ga.  353.  Striking  an- 
swer on  a  rule  to  bring  in  new  parties — Ray 
v.  Anderson  (Ga.)   43  S.  E.  408. 

Approval  of  referee's  report  on  third  per- 
son's claim  against  property  of  bankruptcy, 
final  decree  is  directly  reviewable — Walter 
Scott  &  Co.  V.  Wilson  (C.  C.  A.)  115  Fed. 
284. 

Order  nisi  for  dismissal  not  followed  "by 
judgment — Plaisted  v.  Cooke,  181  Mass.  118. 
Order  to  clerk  to  enter  judgment  upon  de- 
fault of  certain  conditions — Kennedy  v.  Citi- 
zens' Nat.  Bank  (Iowa)    93  N."  W.  71. 

Mere  verdict — Nordin  v.  Berner,  15  S.  D. 
611.  Findings,  sufficiency  of  words  exam- 
ined and  held  not  to  be  a  judgment — Barne- 
mann  v.  Morrison,  132  Ala.  638.  Judgment 
not  entered  on  verdict  when  appeal  taken — 
Kimmel  v.   Johnson,   18   Pa.   Super.  Ct.   429. 

Finality  from  which  to  compute  time  for 
appeal,  see  post,  §  6-B. 

Finality  of  judgment  as  distinguished 
from  the  mere  completion  of  it  by  rendition 
entry  or  the  like,  see  post,  §§  4-B,  5. 


87.  O'Connor  v.  McLaughlin,  114  N.  T. 
St.  Rep.  741. 

88.  Judgment  on  demurrer  "in  favor  of 
defendants  and  against  plaintiff  for  costs" 
held  uncertain — Butte  &  B.  Consol.  Min.  Co. 
v.  Montana  Ore  Purchasing  Co.  (Mont.)  69 
Pac.  714.  Defendant  "discharged  hence 
without  day"  held  sufficient — Powell  v.  Can- 
aday,  96  Mo.  App.  27.  Mere  recital  that 
demurrer  was  sustained  insufficient — White 
V.  Whatley,  128  Ala.  524;  Memphis  &  C.  R. 
Co.  V.  Martin,  131  Ala.  269.  Clerk's  entry  on 
record  by  way  of  mere  recital — Richter  v. 
Koopman,  131  Ala.  399;  Cowan  v.  Campbell, 
131  Ala.  211. 

89.  Shamokin  &  C.  T.  Light  &  Power  Co. 
V.  John,  18  Pa.  Super.  Ct.  498. 

90.  Order  to  reinstate  dismissed  officer 
provided  he  claims  no  salary  for  interim — 
People  V.  York,  169  N.  T.  452. 

91.  Halliday  v.  Barber,  38  Misc.  Rep.  (N. 
T.)  116. 

92.  Decree  in  vacation — Adams  v.  Wright, 
129  Ala.  305.  Order  continuing  a  temporary 
restraining  order  after  appeal  taken  to  a 
higher  court — Jones  v.  Walter,  24  Ky.  Law 
Rep.  878.  Probate  order  for  transfer  of 
property  not  in  state — Stafford  v.  American 
Missionary  Ass'n,  22  Ohio  Cir.  Ct.  399.  Pro- 
ceedings under  certiorari  after  judgment  re- 
fusing to  dismiss  it  for  want  of  a  bond — 
Alabama  Midland  R.  Co.  v.  Stevens  (Ga.) 
43  S.  E.  46.  Special  term  cannot  tax  regis- 
ter's fees  under  Code  Civ.  Proc.  §  3287 — In  re 
Howe,  66  App.  Div.  (N.  Y.)  7.  Refusal  of 
special  term  to  dissolve  ex  parte  injunction 
is  appealable  under  Code  Civ.  Proc.  §§  626, 
1347,  1348 — Marty  v.  Marty,  66  App.  Div. 
(N.  Y.)    527. 

93.  On  retrial  after  invalid  vacation  of 
first  judgment — Akerman  v.  Ford  (Ga.)  42 
S.  E.  777. 

94.  New  trial,  notice  premature — Bell  v. 
Staacke,  137  Cal.  307,   70  Pac.  171. 

95.  Ex  parte  order  allowing  attorney  fees 
out  of  funds  in  court — Board  of- Education 
V.  Ward,  50  W.  Va.  443.  The  objector  should 
move  to  vacate  and  appeal  from  that;  ex 
parte  order  vacating  an  accounting  before 
surrogpte — In  re  Armstrong,  110  N.  Y.  St. 
Rep.  40. 

96.  Stephens  v.  Addis,  19  Pa.  Super.  Ct. 
185.  Refusal  to  permit  amendment  after 
mandate  and  before  entry  of  judgment — 
Kelly  V.  New  Haven  Steamboat  Co.  (Conn.) 
52  Atl.  261.  Refusal  to  hear  oral  evidence 
on  motion  for  new  trial,  not  within  Pub. 
St.  c.  153,  §  8 — Borley  v.  Allison,  181  Mass. 
246.     Refusal  to  open  a  default  (Code,  §  602) 


96 


APPEAL  AND  REVIEW. 


dressed.'^  Discretionary  rulings  during  trial  are  not  reviewed  even  when  ilie 
appeal  is  entertained.  Cases  will  be  cited  elsewliere.^^  A  verdict  set  aside,  or 
a  refusal  to  do  so,  on  considerations  addressed  to  discretion,  as  excessiveness  or 
sufficiency  of  evidence,  is  not  reviewable,  while,  if  error  of  law  be  the  ground,  the 
ruling   is   reviewable.®* 

"Merits"  "principles  of  the  cause"  "orders  preventing  judgment"  etc.— 
"Merits"  of  the  controversy  are  not  involved  by  a  refusal  to  hear  a  motion  to  dis- 
miss before  a  demurrer.^  "Principles  of  the  cause"  cannot  be  settled  by  an  appeal 
from  exceptions  to  a  pleading  because  too  vague  or  uncertain,^  nor  by  judgment  on 
demurrer  against  an  additional  bill,  which,  however,  is  not  supplemental.^  Denial 
of  a  transfer  of  the  cause  is  not  appealable  "to  avoid  delay"  or  decide  "principles."* 
Judgment  is  not  "prevented"  by  refusal  to  dismiss  the  action,^  or  by  discharging 
attachment,^  or  by  refusing  to  strike  an  application  to  amend  for  the  purpose  of  re- 
covering on  a  quantum  meruit  for  a  public  improvement  after  a  procedendo  to  enter 
injunction  against  a  special  assessment.''  Dismissing  an  action  for  failure  to  bring 
it  timely  to  trial  after  reversal  is  not  a  determination  of  the  action  preventing  an 
appealable  judgment ;  nor  is  a  refusal  to  extend  such  time  one.^ 

3.  Rulings  relating  to  pleadings  and  process,  and  before  trial. — Orders  denying 
the  right  to  become  a  party  (in  a  few  states),^  or  sustaining^'^  or  dissolving  juris- 
dictional process,^^  may  be  reviewed,  but  not  the  mere  dissolution  of,^^  or  refusal 
to  quash,  attachments.^^     Eulings  on  motions  to  amend"  or  strike  a  pleading,^^ 


—Browne  v.  Croft  (Neb.)  91  N.  W.  177. 
Refusal  to  set  aside  a  verdict  for  insuffi- 
ciency of  evidence — Crossen  v.  Oliver,  41 
Or.  505,  69  Pac.  308.  Relief  from  orders 
taken  by  surprise  or  excusable  neglect — 
Dunton  v.  Harper,  64  S.  C.  338.  Decree  for 
costs  in  equity — West  v.  East  Coast  Cedar 
Co.  (C.  C.  A.)  113  Fed.  742.  Denial  of  leave 
to  amend  as  matter  of  right — Hanley  v. 
Board  of  County  Com'rs,  87  Minn.  209.  Re- 
fusal to  exact  cost  bond  or  affidavit — Spicer 
v.  Holbrook,  23  Ky.  Law  Rep.  1812.  Surro- 
gate's refusal  to  resettle  an  order — In  re 
Sondheim,  69  App.  Div.  (N.  Y.)  5.  Setting 
aside  of  default  during  term — Norton  v. 
Maddox  (Tex.  Civ.  App.)  66  S.  W.  319.  As- 
signment of  cause  to  one  of  two  unoccupied 
trial  terms — CoUis  v.  Press  Pub.  Co.,  68  App. 
Div.  (N.  Y.)  38.  Motion  for  new  trial  for 
newly  discovered  evidence — Streep  v.  Mc- 
Loughlin,  36  Misc.  Rep.  (N.  Y.)  165;  over- 
ruling motion  for  rehearing — Clerks'  Inv. 
Co.  V.  Sydnor,  19  App.  D.  C.  89.  Motion  to 
amend  is  discretionary  though  statute  gives 
it  of  right  subject  to  terms  imposed — Snook 
V.  Munday,  96  Md.  514. 

97.  Appeal  lies  from  decree  on  bill  to 
vacate  decree  for  fraud — Hendryx  v.  Per- 
kins  (C.  C.  A.)    114  Fed.   801. 

98.  See  infra,  §  13 — "Rulings  peculiar  to 
province  of  trial  court." 

99.  "Wood  v.  Atlantic  &  N.  C.  R.  Co.,  131 
N.  C.  48.  And  see  Streep  v.  McLoughlin,  36 
Misc.  Rep.   (N.  Y.)   165. 

1.  Garthwaite  v.  Bank  of  Tulare,  134  Cal. 
237,  66  Pac.  326. 

2.  Answer  disclosed  no  defense — Wallace 
v.  Bobbitt,  79  Miss.  402. 

3.  A  stockholder's  bill  to  enforce  a  con- 
tract whereby  he  was  to  buy  up  a  corporate 
property,  is  not  supplemental  to  his  bill  for 
a  receivership,  though  filed  with  it,  and 
hence  a  judgment  against  it  on  demurrer 
does  not  adjudge  the  principles  of  the  cause 


so  as  to  be  appealable — Smith  v.  Pyrites 
Min.  &  C.  Co.    (Va.)    43  S.  E.  564. 

4.  Code,  §  34 — Vicksburg  Waterworks  Co. 
V.  Vicksburg,  79  Miss.  510. 

5.  For  non-compliance  with  Rev.  St.  1898, 
§   2632 — Benolkin  v.   Guthrie,   111   Wis.   554. 

6.  Spokane  Dry  Goods  Co.  v.  Fritz,  26 
\\^ash.  433,  67  Pac.  252. 

7.  Allen  V.   Davenport,   115   Iowa,    20. 

8.  Rev.  St.  1898,  §§  3069,  3072 — Sutton  v. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.,   114  Wis.  647. 

9.  Rutledge  V.  Tunno,   63  S.  C.  205. 
Contra,    see    17    Am.    &    Eng.    Encyc.    Law 

(1st  Ed.)  648;  Wenborn  v.  Boston,  23  Cal. 
321;  Cobre  Grande  Copper  Co.  v.  Greene 
(Ariz.)  68  Pac.  524.  Conditional  leave  to 
intervene  ■was  set  aside  before  the  party 
had  come  in  and  the  petition  showed  only  a 
case  for  leave  in  discretion  of  the  court; 
not  appealable — Massachusetts  L.  &  T.  Co. 
V.  Kansas  City  &  A.  R.  Co.  (C.  C.  A.)  110 
Fed.  28. 

10.  Against  one  who  specially  appears — 
Piano  Mfg.  Co.  v.  Kaufert,   86  Minn.  13. 

11.  Discharge  of  trustees  after  dissolu- 
tion of  attachment — Sprague  v.  Auffmordt 
(Mass.)  66  N.  E.  416.  Nonsuiting  attachment 
action  not  a  dismissal  of  writ  for  irregular- 
ity— Gates  V.   Avery,   112   Wis.    271. 

12.  Dissolution  or  vacation  of  attachment 
before  judgment — Machen  v.  Keeler  (N.  M.) 
68  Pac.  937;  Jung  v.  Myer  (N.  M.)  68  Pac. 
933.  Order  (before  1901)  discharging  at- 
tachment neither  determines  action  nor  pre- 
vents judgment — Spokane  Dry  Goods  Co.  v. 
Fritz,   26  "V\^ash.  433,   67  Pac.   252. 

13.  Refusal  to  quash  foreign  attachment 
— Bellah  V.  Poole,  202  Pa.  71. 

14.  Denial  of  leave  to  amend — Ayers  v. 
Makely,  131  N.  C.  60.  To  amend  notice  of 
election  contest — Hanley  v.  Board  of  Com'rs 
Cass  County,   87  Minn.    209. 

15.  Demurrer — Breeding  v.  Grantland. 
135  Ala.  497. 


ADJUDICATIONS    REVIEWABLE. 


97 


or  for  security  for  costs/^  unless  the  right  to  it  be  statutory,"  or  to  change  the 
venue,^^  do  not  ordinarily  affect  any  substantial  right  nor  have  appealable  finality. 
Contra,  as  to  an  amendment  out  of  time  to  conform  to  proof.^^ 

If,  on  demurrer,  the  ruling  must  be  final,-'*  which  it  is  not  if  the  demurrer  be 
special,-^  or  if  leave  be  given  to  amend,"  or  a  pleading-^  or  count-*  or  cause  of 
action  be  left  standing.^^  The  judgment,  and  not  the  mere  ruling  against  demur- 
rant, is  appealable.^®     Judgments  on  dilatory  pleas  are  not  final.-^ 

3.  Dismissals,  nonsuits,  orders  to  strike  cause,  etc. — Dismissals  determining 
the  cause  are  reviewable  ;2^  otherwise,  not.-^  Neither  is  a  refusal  to  dismiss.^"  A 
ruling  on  a  "motion"  to  dismiss  an  action  as  having  abated  will  not  be  deemed 
to  be  judgment  on  a  p^ea  in  abatement,  which  is  not  appealable."  If  it  works  a 
final  disposal  of  the  cause,  an  order  striking  it,^-  or  permitting  a  voluntary  dismissal 
after  allowing  opening  of  an  adverse  judgment,  is  reviewable. ^^  ^  voluntary  non- 
suit,^*  or  an  order  taking  one  off,^^  is  not  reviewable,  except  by  statute.^''  An 
involuntary  nonsuit,"  or  ruling  on  motion  to  set  it  aside,  is.^*  JSTonsuiting  an  at- 
tachment action  is  not  a  dismissal  of  the  writ  for  irregularity.^^.  Eefusal  to  direct 
a  verdict  after  disagreement  is  not  final.*" 


16.  Refusal  to  require  security  for  costs 
(Rev.  St.  1898,  §  3069) — Cullen  v.  Hanisch, 
114  Wis.   24. 

17.  Watson  v.  Glassie,  95  Md.  658. 

IS.  Rulings  on  change  of  venue  (Comp. 
Laws,  §  3422) — Peters  v.  Jones,  26  Nev.  259, 
66  Pac.  745. 

19.  Wicker  v.  Messinger,  22  Ohio  Cir.  Ct. 
712,  12  Ohio  Cir.  Dec.  425. 

20.  Sustaining  demurrer  to  complaint  for 
injunction,  plaintiff  not  pleading  over — 
Peters  v.  Lewis,  28  Wash.  366,  68  Pac.  869; 
see  also  infra,  this  section.  Sustaining  de- 
murrer of  only  defendant  of  whom  jurisdic- 
tion was  had — Lough  v.  John  Davis  &  Co. 
(Wash.)  70  Pac.  491.  Sustaining  demurrer 
and  entering  dismissal  and  final  judgment — 
People  V.  City  Council,   97  111.  App.   72. 

21.  Special  demurrer  for  misjoinder — 
Leavitt  V.  S.  D.  Mercer  Co.  (Neb.)  89  N.  W. 
426. 

22.  Walker  v.  Nat'l  G.  Loan  &  Trust  Co., 
133  Ala.  240.  Sustaining  demurrer  with 
leave  to  amend,  also  allowing  appeal  to 
settle  the  principles  of  the  case — Barrier  v. 
Kelly  (Miss.)   32  So.  999. 

23.  To  amended  bill  leaving  first  bill 
standing — Hobson  v.  Hobson,  4  Va.  Sup.  Ct. 
R.  156. 

24.  To  one  of  two  counts  without  pass- 
ing on  the  other — Greig  v.  Elliot,  29  Colo. 
283,  68  Pac.  237. 

25.  Demurrer  by  sureties  and  awarding 
costs  but  overruling  demurrer  by  principal 
defendant  (Code  Civ.  Pr.  §  939) — Nolan  v. 
Smith,  137  Cal.  360,  70  Pac.  166. 

26.  Stromberg-Carlson  Tel.  Mfg.  Co.  v. 
Bisbee,  115  Ga.  346;  Padley  v.  Gregg,  26 
Wash.  322,  67  Pac.  72.  To  petition  for  pro- 
hibition and  sustaining  temporary  writ  — 
Dumont  v.  Payne,  24  Ky.  Law  Rep.  2S8.  To 
petition  for  condemnation  of  land — Parker 
v.  Superior  Ct.,  Snohomish  County,  25  Wash. 
544,  66  Pac.  154.  Order  directing  judgment 
overruling  plaintiff's  demurrer  and  dismiss- 
ing complaint — Gabay  v.  Doane  (N.  Y.)  66 
App.  Div.   507. 

27.  Plea  to  Jurisdiction  of  the  person — 
State  Mut.  Life  &  An.  Ass'n  v.  Kemp,  115 
Ga.    355.     Order   overruling  plea  to   the   pro- , 

Cur.  Law — 7. 


cedure  and  not  to  Jurisdiction  Is  not  final— 
Puritan  Trust  Co.  v.  Coffey,  180  Mass.  510. 
Dilatory  plea  to  an  Interpleaded  claimant's 
answer,  the  liability  remaining  undecided — 
Hely  v.  Lee,  108  Tenn.  715.  Motion  to  dis- 
miss on  abatable  grounds  not  a  plea  In 
abatement— Brown  v.  Kellogg,  182  Mass 
297. 

28.  Without  prejudice  after  submitting 
cause  (Code,  §  4101)— Carney  v.  Reed  (Iowa) 
91  N.  W.  759.  Denial  of  extension  of  time 
to  proceed  after  reversal  and  grant  of  new 
trial  and  dismissal  on  cross  motion — Sutton 
V.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  114  Wis. 
647. 

29.  Dismissal  of  part  of  defendants  al- 
leged to  be  jointly  liable— Carmichael  v. 
Texarkana  (C.  C.  A.)  116  Fed.  845.  Dis- 
missal of  a  cross-libel  in  admiralty — Bow- 
ker  V.  United  States,  186  U.  S.  135,  46  Law. 
Ed.  1090. 

30.  Refusal  to  dismiss  (Meekins  v.  Nor- 
folk &  S.  R.  Co.,  131  N.  C.  1;  Clinard  v 
White,  129  N.  C.  250)  for  want  of  service- 
Jester  V.  Baltimore  Steam  Packet  Co.,  131 
N.  C.  54.  Refusal  to  dismiss  for  delay  in 
taking  out  mandate — Gregory  v.  Thompson 
Sav.  Bank   (Tex.  Civ.  App.)    71  S.  W.   98S. 

31.  Brown  v.  Kellogg,  182  Mass.  297. 

33.  Striking  from  calendar  because  re- 
moved to  federal  court — Ashland  v.  Whit- 
comb,    114   Wis.   99. 

33.  Without  notice  and  with  leave  to 
withdraw  costs  paid  as  condition  to  vacat- 
ing.—Dane  v.  Daniel,  28  Wash.  155,  68  Pac 
446. 

34.  Graham  v.  Parsons,  88  Mo.  App.  385. 

35.  Heilman  v.  McKinstry,  18  Pa.  Super. 
Ct.  70.  Setting  aside  nonsuit  entered  to 
avoid  adverse  ruling  not  a  new  trial — Mo- 
bile Light  &  R.   Co.   V.   Hansen,   135  Ala.    284. 

36.  Laster  v.  Blackwell,  128  Ala.  143, 
holding  that  it  must  appear  that  it  was  en- 
tered  in   consequence   of  rulings   on   trial. 

37.  Nonsuit    as    to    part    of    defendants 

Ellis  V.  Almand,   115   Ga.   333. 

38.  Veatch  v.   Norman',   95  Mo.  App.   500. 

39.  Gates  v.  Avery,  112  Wis.  271. 

40.  Crowley  v.  Richards  (Iowa)  89  N  W 
103. 


98 


APPEAL   AND    REMEW. 


4.  Orders  directing  or  arresting  judgment,  or  on  moiinn  for  neiv  trial,  are 
not  reviewable  at  common  law,'^^  or  generally,  because  lying  in  discretion/^  but  in 
some  states  are  made  so  by  statute.*^  Eeferring  a  cause  to  the  assignment  list 
after  disagreement  of  the  jury  is  not  a  grant  of  a  "new  trial,"  which  is  appealable 
if  it  aii'ects  a  substantial  right,**  nor  is  setting  aside  a  voluntary  nonsuit  entered 
to  avoid  an  objection  to  evidence.*^ 

5.  Final  judgment  or  decree.*^ — The  adjudication  must  be  finally  determinative 
of  the  controversy,  and  must  substantially  affect  the  rights  of  parties.*^  Substan- 
tial rights  are  not  affected  by  the  court's  assigning  reasons  for  giving  to  a  plaintiff 
the  relief  which  ho  demands.** 

It  must  be  so  far  final  that,  if  affirmed,  nothing  remains  to  the  trial  court  but 
to  execute  it;*^  but  it  may  be  final,  though  it  open  or  give  rise  to  other  causes  of 
action,^"  or  leave  some  questions  reserved  or  undecided. ^^  It  is  not  final  if  the  case 
be  retained.^^  If  a  refusal  to  enter  judgment  on  a  mandate  be  merely  to  permit 
the  trial  of  a  newly-asserted  claim,  it  is  not  final,  but  in  substance  a  postpone- 


41.  Order  for  judgment  non  obstante — 
Sanderson  v.  Northern  Pac.  R.  Co.  (Minn.) 
92  N.  W.  542.  Arresting  judgment — Brazel 
V.  New  South  Coal  Co.,  131  Ala.  416.  New 
trial  not  in  federal  courts — South  Penn  Oil 
Co.  V.  Latshaw   (C.  C.  A.)    Ill  Fed.  598. 

42.  Streep  v.  McLoughlin  (N.  T.)  36  Misc. 
165.  Setting  aside  verdict  and  ordering  new^ 
trial  at  same  term — Bird  v.  Bradburn,  131  N. 
C.  488. 

43.  Code,  §  4101 — Boyce  v.  Tlmpe  (Iowa) 
89  N.  W.  83.  Denying  new  trial  in  proceed- 
ings to  distribute  an  estate  (Code  Civ.  Proc. 
§  1722) — In  re  Davis'  Estate  (Mont.)  70  Pac. 
721.  Probate  court  decisions  on  motion  for 
new  trial  not  included  in  statute  relating 
to  "circuit  or  city  courts"  (Code,  §  434)  — 
Beatty  v.  Hobson,  133  Ala.  270. 

44.  The  fact  that  plaintiff  had  moved  to 
amend  before  defendant  appealed  did  not 
raise  any  substantial  right  in  defendant — 
Dossett  V.  St.  Paul  &  T.  Lumber  Co.,  28 
Wash.  618,  construing  Ball.  Ann.  Codes  & 
St.  §§  5006.  5007,   5070,   5071,  6500,  subd.  6. 

45.  Mobile  Light  &  R.  Co.  v.  Hansen,  135 
Ala.   284. 

40.  Finality  is  a  necessary  element  of 
orders  otlier  than  judgments  and  decrees 
determinative  of  the  action.  As  to  such,  see 
subsections  6-9  following.  Bock  v.  Grooms, 
(Neb.)  90  N.  W.  204;  Brodhead  v.  Minges, 
99  111.  App.  435;  Coleridge  Creamery  Co.  v. 
Jenkins  (Neb.)  92  N.  W.  123;  De  Harrison 
V.  Perea  (N.  M.)  70  Pac.  558.  When  trial 
Is  to  jury  order  must  be  final — Creamery 
Package  Mfg.  Co.  v.  Magill  (Neb.)  89  N.  W. 
170.  Circuit  court  decree  not  appealable  to 
supreme  court  on  the  merits  until  entirely 
disposed  of — Covington  v.  First  Nat.  Bank, 
185   U.   S.    270,    46   Law.   Ed.    906. 

47.  Orders  held  final:  Denial  of  petition  to 
be  appointed  guardian  and  reinstatement  of 
former  guardian — Arthur  v.  Reed,  26  Tex. 
Civ.  App.  574.  Decree  to  sell  mortgaged 
land — Kronenberger  v.  Heinemann,  104  111. 
App.  156.  Final  injunction  against  discon- 
tinuing a  telephone  service  so  long  as  the 
defendant  continues  in  business  in  the  ju- 
risdiction— Chesapeake  &  P.  Tel.  Co.  v. 
Manning,  186  U.  S.  238,  46  Law.  Ed.  1144. 
Confirmation  of  referee's  report  on  reference 
of  damages  on  injunction  bond — Wisconsin 
M.   &    F.    Ins.    Co.    Bank   v.    Durner,    114    Wis. 


369.  Default  judgment  after  improper  re- 
fusal to  transfer  cause  to  another  district 
— Goldman  v.  Jacobs,  38  Misc.  Rep.  (N.  Y.; 
781. 

Orders  held  not  final:  Judgment  overrul- 
ing special  plea  to  jurisdiction — Ross  v. 
Mercer,  115  Ga.  353.  Final  judgment  on  de- 
murrer as  to  one  defendant  only  not  final 
so  as  to  be  reviewable  by  error — Pittsburgh 
Plate  Glass  Co.  v.  Peper  (Mo.  App.)  70  S. 
W.  910;  Rock  Island  Implement  Co.  v.  Marr. 
168  Mo.  252.  Order  fixing  a  priority  but  not 
determining  the  amount — Davis  v.  McCul- 
louch.  192  111.  277.  Decree  fixing  rights  of 
annuitant  in  lands  of  an  estate  but  suspend- 
ed until  reference  to  adjudicate  further 
rights — Ohio  River  R.  Co.  v.  Fisher  (C.  C. 
A.)  115  Fed.  929.  Refusal  to  enter  default 
— Brockway  v.  W.  &  T.  Smith  Co.  (Colo. 
App.)  66  Pac.  1073.  Decree  subjecting  lands 
of  trustee  to  payment  of  trust  moneys  and 
referring  to  commissioner  to  state  accounts 
— Savings  &  B.  &  L.  Ass'n  v.  Tart  (Miss.) 
30  So.  693.  Report  of  referee  stating  an  ac- 
count— Shankle  v.  Whitley.  131  N.  C.  168. 
Confirmation  of  commissioner's  report — Paul 
V.  Wetlauf,   24  Ky.  Law  Rep.  1480. 

48.  Where  an  injunction  based  on  pre- 
scriptive rights  was  granted  partly  on  the 
ground  that  a  statutory  right  warranted  it 
— Hume  V.  Turner   (Or.)    70  Pac.  611. 

49.  Brodhead   v.    Minges.    99    111.   App.    435. 

50.  A  decree  on  original  hill  in  the  na- 
ture of  a  bill  of  review^  impeaching  a  de- 
cree for  fraud  and  letting  the  parties  pro- 
ceed in  the  original  suit — Hendryx  v.  Per- 
kins (C.  C.  A.)  114  Fed.  801.  Judgment  on 
dismissal  of  suit,  but  referring  damages 
from  issuing  of  injunction  therein — West  v. 
East  Coast  Cedar  Co.  (C.  C.  A.)  113  Fed. 
742. 

51.  Railroad  Commission  v.  Weld,  95  Tex. 
278.  Partition  decree  for  sale  is  final  though 
rights  in  proceeds  remain  undecided — East 
Coast  Cedar  Co.  v.  People's  Bank  (C.  C.  A.) 
Ill  Fed.  446.  Adjudication  of  one  legatee's 
rights  on  bill  to  construe  will — Hawes  v. 
Kepley,    28    Ind.    App.    306. 

52.  Assessment  of  taxes  against  national 
bank  decreed  null  and  case  reserved  to  in- 
quire into  future  assessments — Covington 
V.  First  Nat.  Bank,  185  U.  S.  270,  46  Law.  Ed. 
906.     Decree  finding  that  one   mortgage  was 


ADJUDICATIONS    REVIEWABLE. 


99 


mcnt.-''^  It  must  be  res  adjudicata  as  to  all  parties  Avho  were  brought  in,  but  need 
not  be  as  to  others  merely  named  as  parties  ;'*  and  it  does  not  suffice  that  a  judgment 
was  entered  for  one  co-party  on  an  amended  petition  alleging  that  he  had  taken  a 
transfer  of  the  others'  rights.^^ 

6.  Orders  and  adjudications  in  interlocutory  or  provisional,  extraordinary,  and 
special  proceedings. — Interlocutory  or  provisional  orders  are  not  separately  review- 
able,^*' in  the  absence  of  legislation.  Those  intermediate  orders  and  rulings  which 
go  up  for  review  with  the  main  judgment  are  the  subject  of  a  later  section  of  this 
article.     This  section  refers  only  to  their  separate  appealability.^^ 

Statutes  in  most  states  designate  certain  proceedings  or  orders  therein,  and 
certain  interlocutory  orders,  which  may  be  appealed  or  reviewed. ^^  An  enumeration 
of  particular  ones  excludes  the  reviewability  of  others.^^  A  statute  giving  appel- 
late jurisdiction  in  all  civil  cases  does  not  include  special  statutory  proceedings,*" 
and  this  meaning  is  not  enlarged  by  a  provision  that  writs  of  error  or  appeals 
shall  lie  in  the  same  manner  as  provided  for  the  supreme  court.®^  A  proceeding 
before  a  judge,  as  such,  is  not  reviewable  as  a  proceeding  before  the  court."^  A 
statute  of  a  territory  giving  an  appeal  from  interlocutory  orders  is  void  if  the  or- 
ganic act  provides  for  review  of  final  orders  only."^ 

These  orders  must  be  final,®*  or  affect  a  substantial  right.®-''     Allowing  an  ap- 


paid  and  ordering  retention  of  cause  on  the 
other  to  await  other  litigation — Brodhead 
V.  Minges,  198  111.  513. 

53.  Justice  V.  Phillips,  24  Ky.  Law  Rep. 
290. 

54.  Hooven,  Owens  &  Rentschler  Co.  v. 
John  Featherstone's  Sons  (C.  C.  A.)  Ill  Fed. 
81.  Judgment  on  one  demurrer  only — Pitts- 
burgh P.  G.  Co.  V.  Peper  (Mo.  App.)  70  S.  W. 
910. 

55.  Joint  suit  to  recover  land — Jackson 
V.  Coombs   (Tex.  Civ.  App.)   65  S.  W.  385. 

56.  Coleridge  Creamery  Co.  v.  Jenkins 
(Neb.)  92  N.  W.  123;  De  Harrison  v.  Perea 
(N.  M.)    70  Pac.   558. 

57.  Section  13,  infra. 

58.  Temporary  alimony  —  Eickhoff  v. 
Eickhoff,  29  Colo.  295,  68  Pac.  237;  Motley 
v.  Motley,  93  Mo.  App.  473;  Marx  v.  Marx,  94 
Mo.  App.  172.  Allowance  of  counsel  fees 
to  wife  in  divorce  is  appealable  though 
made  pending  a  second  trial,  and  also  as  a 
final  order  affecting  a  substantial  right — 
Schuster  v.  Schuster,  84  Minn.  403.  An  ali- 
mony decree  in  Louisiana  before  final  judg- 
ment appealable  regardless  of  amount 
(Const.  189S,  art.  85) — Dale  v.  Hauer  (La.) 
33   So.    741. 

Refusal  to  grant  removal  to  federal  courts 
is  not  within  Code,  §  34,  allowing  granting 
of  an  appeal  from  interlocutory  orders  "to 
state  principles"  or  "avoid  delay" — Vicks- 
burg  Water  Works  Co.  v.  Vicksburg,  79 
Miss.   510. 

State  may  appeal  in  proceedings  for  in- 
direct contempt  (Burns'  Rev.  St.  1901,  § 
1915) — State  v.  Rockwood  (Ind.)  64  N.  E. 
592.  By  statute  in  Oregon,  one  adjudged  to 
be  in  contempt  may  appeal  as  in  an  action — 
State  v.  Gray  (Or.)   70  Pac.   904. 

50.  Refusal  to  vacate  an  order  denying 
appointment  of  administrator  ad  litem  not 
enumerated  (Rev.  St.  1899,  §  806) — Creech 
v.  Young,  94  Mo.  App.  90.  Order  quashing 
information  to  remove  county  commission- 
ers (Rev.  St.  §  4807) — Mahoney  v.  Elliott 
(Idaho)    69  Pac.   108.     Provisions  for  appeal-  J 


Ing  judgments  of  a  common  pleas  court 
settling  accounts  of  county  officers  do  not 
include  an  order  discharging  a  rule  to  strike 
off  such  proceedings,  it  being  interlocutory 
— Moore's  Appeal,   203  Pa.    376. 

«0.  3  Mills'  Ann.  St.  §  1002  D — Fletcher 
V.   Smith    (Colo.  App.)    70  Pac.    697. 

61.  Such  provision  refers  to  procedure 
only — Fletcher  v.  Smith  (Colo.  App.)  70  Pac. 
697. 

62.  To  compel  delivery  of  papers  under 
Pol.  Code,  §  272 — Albea  v.  Watts,  114  Ga. 
149.  Applications  for  certiorari — Brockton 
V.  Plymouth  County  Com'rs  (Mass.)  66  N. 
E.  427;  or  habeas  corpus — Ex  parte  Cox 
(Fla.)    33   So.  509. 

C3.  Laws  1901,  c.  82 — Jung  v.  Myer  (N. 
M.)  68  Pac.  933;  Laws  1899,  c.  75,  §§  8,  9 — 
Machen  v.   Keeler   (N.  M.)    68  Pac.   937. 

64.  Final  orders:  Refusal  to  compel  de- 
livery of  books,  etc.,  to  public  officer  under 
Code  Civ.  Pr.  §  2471a,  is  appealable — In  re 
Brenner,  170  N.  Y.  185.  Reversal  of  order 
continuing  a  proceeding  to  settle  an  ad- 
ministrator's account,  ordering  objections 
withdrawn  and  account  approved,  is  a  final 
order  in  a  special  proceeding  which  goes 
to  the  court  of  appeals — In  re  Fitzsimons, 
174  N.  Y.  15.  Decision  under  Rev.  St.  arts. 
4564-4566,  that  certain  rates  of  freight  were 
unreasonable  and  giving  no  other  relief; 
statute  provides  that  reasonableness  shall 
be  the  only  issue  tried — Railroad  Commis- 
sion V.  Weld,  95  Tex.  278.  Refusal  to  make 
a  rule  to  pay  money  absolute — Plollis  v. 
Nelms,  115  Ga.  5. 

Orders  not  final:  Judgment  with  findings 
in  habeas  corpus  but  leaving  child  in  re- 
spondent's custody  until  further  order  is 
not  final — Hart  v.  Gotten  (Fla.)  31  So.  817. 
Decree  for  possession  pending  taking  of 
final  proofs  and  hearing — Lewis  v.  New 
Music  Hall  Co.,  100  111.  App.  415.  Order  to 
remove  fence  pending  action  for  permanent 
removal — McKinney  v.  Thomson,  24  Ky. 
Law  Rep.  337.  Order  for  accounting  in  a 
partition    suit — Glos    v.    Clark,    199    111.    147. 


100 


APPEAL   A>:D    review, 


plication  to  amend  after  a  procedendo  in  an  injunction  suit  to  prevent  a  special 
assessment,  so  that  defendant  might  recover  on  a  quantum  meruit,  goes  to  the 
merits,  and  is  material.*®  If  the  same  questions  arise  on  appeal  from  final  judg- 
ment,*' or  if  an  interlocutory  decree  has  passed  into  final  decree,  the  appeal  must 
be  from  the  latter.'*  Eefusal  of  nonsuit  should  be  revie-n-ed  on  appeal  from  judg- 
ment or  from  motion  for  a  new  triaL" 

A  decision  on  lunacy  proceedings  finding  the  person  sane  is  not  appealable  in 
Indiana."" 

Provisional  orders  for  relief. — It  is  not  the  "grant,  refusal,  continuance,  or 
modification  of  a  provisional  remedy''  to  refuse  to  limit  an  examination.'^  In- 
junctional  orders  are  generally  made  reviewable,'*  when  made  on  hearing,  and  not 
in  vacation.''  The  refusal  of  an  injunction  is  an  exception  in  some  jurisdictions.'* 
A  dismissal  of  a  complaint  for  an  injunction  may  be  appealable  as  refusing  an 
injunction  or  on  demurrer,  if  substantially  that,  though  irregular;'^  and  a  refusal 
to  dissolve  a  temporary  restraining  order  or  injunction  may  be  regarded  as  equiv- 
alent to  granting  one."*  A  refusal  to  grant  or  dissolve  a  preliminary  injunction  is 
not  now  appealable  to  the  United  States  circuit  court  of  apx)eals."^  In  Louisiana, 
dissoltition  of  an  injunction  against  acts  which,  if  done,  may  be  adequately  rep- 
arable in  money,  is  not  appealable.^'  There  should,  as  in  other  eases,  be  some 
invasion  of  substantial  right  or  e^ect   upon  the  merits  and  a  final  decision.'* 


Order  nisi  to  remove  trustee — Chappell  v. 
Clarke.  54  Md.  178.  Denial  of  application 
by  attorneys  for  creditors  to  be  recognized 
as  attorneys  for  an  insolvent  estate — In  re 
People's  Sav.  Bank  (Colo.  App.)  71  Pac  397, 
398.  Order  in  special  tax  proceedings  set- 
ting aside  dismissals  of  certain  defendants 
and  construing  statutes,  then  referring  the 
case — Spechi  v.  Barber  Asphalt  Co.,  24  Ky. 
Law  Rep.  SS7. 

Order  to  executor  to  file  inventory  and 
account — In  re  Aliens  Estate,  20  Pa.  Super. 
Ct.  32;  or  to  petition  for  sale  of  land — Lane 
V.  Thorn.  103  Dl.  App.  215.  Order  dismiss- 
ing attorney's  petition  for  allo'vrance  from 
estate  because  not  brought  up  on  account- 
ing of  executor  who  employed  him — Nash 
V.  Wakefleid.  30  "Wash.  556.  71  Pac.  35. 

65.  A  determination  under  the  lo'wa 
-Statutes  that  a  consent  to  the  sale  of  liquors 
•was  sufficient  affects  such  a  right — Porter 
V.  Butterfield.  116  Iowa,  725.  A  non-taxpay- 
ing  applicant  for  removal  of  an  officer  is 
not  substantiaUy  affected  by  an  adverse  de- 
cision— In  re  Aldrich,   114  "Wis.   308. 

Orders  in  administration  must  decide 
rights,  affect  merits  or  aggrieve  parties — 
Lane  v.  Thorn.  103  IlL  App.  215.  Refusal 
to  revoke  probate  affects  a  substantial  right, 
i.  e.,  to  declare  an  escheat — State  v.  TaU- 
man,  29  "Wash.  317,  69  Pac  1101.  Appoint- 
ment of  appraisers  of  an  estate  does  not — 
Mayrand  v.  Mayrand.  96  IlL  App.  478. 

66.  Allen   V.    Davenport.    115    Iowa,    20. 

67.  Dismissal  of  complaint — Kelly  v. 
Theiss.   77  App.  Div.   (N.  T.)   81. 

6S.  Judgment  against  cross-bill  on  de- 
murrer merged  into  dismissal  of  cross-bill — 
Wilder  v.  Dunne   (Fla.)   33   So.   505. 

69.  Brauer  v.  0>eeanic  Steam  Xav.  Co..  77 
App.  Div.   (X.  T.)   407. 

70.  State  V.  Branyan  (Ind.  App.)  66  N.  E. 
464. 

71.  Rev.  St.  1898,  |  3069 — State  v.  Mathys 
(Wis.)   91  X.  W^.  114. 

72.  Interlocutory    injunction    (23    Stat,    at 


Large,  p.  673) — ^Williams  v.  Jones.  62  S.  C 
472.  Rev.  St.  1899,  §  S06.  dissolution  of  in- 
terlocutory order  of  injunction — Powell  v. 
Canaday,  96  ilo.  App.  27.  Right  may  be  lost 
by  proceeding  to  trial  of  main  issue — 
Sharpies  v.  Baker,  100  ILL  App.  IDS. 

73.  On  hearing — Fuller  v.  Schutz  (Minn.) 
93  X.  W.  lis.  In  Alaska  an  interlocutory 
grant  or  dissolution  of  an  injunction  is  ap- 
pealable (Alaska  Code.  §  507),  though  not 
on  a  "hearing  in  equity."  as  it  must  be  un- 
der the  federal  practice,  which  so  far  as  ap- 
plicable is  adapted  to  Alaska — Lane  v.  Jor- 
don  (C.  C.  A.)  116  Fed.  623.  Orders  of 
judges  granting  or  refusing  to  dissolve  in- 
junctions in  vacation — ^Hawkins  v.  Burwell. 
191  m.  389;  Sharpies  v.  Baker,  100  111.  App. 
108. 

74.  Remedy  ■was  to  apply  to  supreme 
court — ^Hudson  v.  Barham  (Va.)   43  S.  E.  1S9. 

Contra:  Dissolution  of  writ  of  temporary 
injunction — Stansbury  v.  Storer  (Xeb.)  91  X. 
"W.  197.  Refusal  to  dissolve  injunction — L'nii- 
ed  States  Heater  Co.  v.  Iron  Molders'  fnion 
(Mich.)   88  N.  W.  889. 

75.  The  demurrer  was  coupled  with  an- 
s'wer  and  the  judgment  ignored  the  merits 
pleaded  by  answer — Quayle  v.  Bayfield  Coun- 
ty, 114  AVis.   108. 

76.  Act  of  Congress.  Feb.  9.  1S93 — McFar- 
land  V.  "Washington.  A.  &  M.  V.  R.  Co..  18 
App.  D.  C.  456.  Refusal  to  dissolve  injunc- 
tion (Hurd"s  Rev.  St.  1S99.  c.  22.  ?  52)  is 
equivalent  to  granting  one — ^Hately  v. 
Myers,   96  lU.  App.    217. 

77.  Since  Act  Cong.  June  6,  1900 — ^March 
V.  Romare  (C.  C.  A.)  116  Fed.  354;  Berliner 
Gram.  Co.  v.  Seaman  (C.  C.  A.)   113  Fed.  750. 

78.  Injunction  against  execution  sale — 
Globe  Lumber  Co.  v.  Griffeth.   107  La,   621. 

79.  Order  granting  temporary  allowance 
for  alimony  is  not  a  "trial""  and  not  final — 
Stewart  v.  Stewart.    2S   Ind.  App.   378. 

iBjisnctional  orders  affectlngr  snbstxattal 
rights:     Against    operation    of    a    ginnery — 


ADJUDICATIONS    REVIEWABLE. 


101 


Though  a  bill  of  discovery  is  ancillary  to  another  action,  yet  the  order  to  answer 
is  final  ;^°  and  so  are  other  determinative  orders  in  proceedings  which  arise  as  col- 
lateral to  the  main  cause.*^ 

Eminent  domain  proceedings  are  covered  by  statute,  as  shown  in  footnotes.®^ 
When  final,  such  orders  must  be  reviewed  as  an  entirety.^^  Footnotes  collect  the 
decisions  on  finality  of  such  orders,  and  effect  on  substantial  rights.®* 

7.  Orders  after  judgment  on  the  main  cause  may,  under  many  statutes,  be  ap- 
pealed if  final  as  to  the  parties  and  subject-matter.^^     An  order  extending  time  to 


"Vi'illiams  v.  Jones,  62  S.  C.  472.  Refusal  to 
allow  defendant  to  bond  an  injunction,  de- 
volutively  appealable — Sanders  v.  Ditch,  107 
La.  333.  Against  litigating  claim  for  dam- 
ages on  condemnation  until  title  be  decided 
— South  Bound  R.  Co.  v.  Burton,  63  S.  C. 
34S.  Mandatory  injunction  to  surrender  pos- 
session of  disputed  property — State  v.  Su- 
perior Ct.,  28  Wash.  403,  68  Pac.  865.  In- 
junction to  restrain  disturbance  of  receiver's 
disputed  possession  of  premises — State  v. 
Superior  Ct.,  30  Wash.  177.  70  Pac.  256. 

Keoeivership  proceedings  held  final  and 
appealable:  Order  for  issuance  of  receiver's 
certificates  to  be  prior  to  existing  mortgage 
liens — Bibber-White  Co.  v.  White  River  Val- 
ley E.  R.  Co.  (C.  C.  A.)  115  Fed.  786.  Order 
to  receiver  of  banking  partnership  to  turn 
over  property  to  trustee  in  bankruptcy  of 
the  partners  (Rev.  St.  1898,  §  3069,  sub.  2). 
Refusal  to  settle  final  account  of  receiver  in 
foreclosure  suit  and  to  charge  expenses  and 
costs  against  the  complainant — Chapman  v. 
Atlantic  Trust  Co.  (C.  C.  A.)  119  Fed.  257. 
Order  in  escheat  proceedings  that  heirs  sur- 
render to  receiver  property  after  final  dis- 
tribution— State  V.  O'Day,  41  Or.  495,  69  Pac. 
542.  Interlocutory  orders  appointing  re- 
ceiver or  extending  his  powers — St.  Louis. 
V.  &  T.  H.  R.  Co.  V.  Vandalia,  103  111.  App. 
363.  Order  appointing  receiver  appealable 
as  transferring  property  though  appellant 
claims  it  to  be  exempt  (Code  1892,  §  34)  — 
Levy  v.  T.  J.  Rossel  «fe  Co.  (Miss.)  33  So. 
651. 

^ot  final:  Appointment  of  receiver — Bar- 
ber V.  International  Co.,  74  Conn.  652;  Coons 
V.  Frost,  100  111.  App.  303.  Order  to  receiver 
to  purchase  plant  to  work  tailings  of  a  min- 
ing company  is  neither  final  order  nor  judg- 
ment in  a  collateral  controversy  (Code  Civ. 
Pr.  §  963) — Free  Gold  M.  Co.  v.  Spiers,  135 
Cal.  130,  67  Pac.  61.  Directing  purcliases  by 
receiver — Free  Gold  M.  Co.  v.  Spiers,  136 
Cal.  484,  69  Pac.  143.  Order  to  clerk  to  pay 
over  to  receiver — Coons  v.  Frost,  100  111. 
App.  303. 

80.  Hurricane  Tel.  Co.  v.  Mohler,  51  W. 
Va.  1. 

SI.  Commitment  of  witness  for  refusing 
to  answer  is  final — Flower  v.  MacGinniss 
(C.  C.  A.)  112  Fed.  377.  Order  nisi  for  re- 
moval of  trustee  not  final — Chappell  v. 
Clarke,   94  Md.   178. 

82.  County  court  judgment  on  report  of 
commissioners  to  assess  damages  to  land 
taken  for  railroad  is  ultimate  and  not  ap- 
pealable (V.  S.  §§  3821,  1625)— Goodsell  v. 
Rutland-Canadian  R.  Co.,  74  Vt.  206.  An 
eminent  domain  act  giving  the  right  to  ap- 
peal from  the  "decision  of  a  city  council  in 
awarding  damages,"  but  not  operating  to 
prevent  making  of  the  contemplated  work?^ 
allows  an  appeal  from  damages  only — 
Stearns  v.  Barre,   73  Vt.   281. 


83.  Confirmation  of  inquisition  on  emi- 
nent domain  proceedings  is  conclusive  and 
not  reviewable  as  to  all  except  the  right  to 
condemn — Hopkins  v.  Philadelphia,  W.  &  B. 
R.  Co.,  94  Md.   257. 

84.  Orders  held  final:  Refusal  to  appoint 
commissioners — Denver  P.  &  I.  Co.  v.  Den- 
ver &  R.  G.  R.  Co.  (Colo.)  69  Pac.  568.  Ap- 
pointment of  appraisers  to  assess  damages 
by  flowage  by  water  company's  works  (Sp. 
Laws  1873,  p.  478;  1897,  p.  708);  also  accept- 
ance of  their  report  on  its  return  into  court 
— New  Milford  AVater  Co.  v.  Watson  (Conn.) 
52   Atl.   947;  Id.    (Conn.)    53  Atl.   57. 

Not  final:  Order  fixing  amount  of  bond 
in      condemnation      proceeding. — Pittsburgh, 

C.  &  W.  R.  Co.  V.  Gamble  (Pa.)  53  Atl.  759. 
Appointment  of  commissioners  to  fix  com- 
pensation for  railroad  crossings  under  Rail- 
road law,  §  12,  not  final — Stillwater  &  M. 
St.  R.  Co.  V.  Boston  &  M.  R.  R.,  67  App.  Div. 
(N.  Y.)    367. 

Substantial  rights:  If  an  unconstitutional 
taking  of  property  be  sought  (taking  one  car- 
rier's tracks  for  another  carrier)  appeal  lies 
from  the  appointment  of  viewers  before  any 
assessment  of  damages — In  re  Philadelphia, 
M.  &  S.  St.  Ry.  Co..  203  Pa.  354.  Refusal  t(7 
re-tax  costs  on  appraisal  and  assessment  is 
an  order  affecting  a  substantial  right  in 
special  proceeding — In  re  Collis,  78  App. 
Div.  (N.  Y.)   495. 

85.  Barber  v.  International  Co.  of  Mex- 
ico, 74  Conn.  652.  Vacation  of  judgment  not 
made  appealable  by  Laws  1893,  p.  119,  §  1, 
subd.  1 — Nelson  v.  Denny,  26  Wash.  327,  67 
Pac.   78. 

Held  final:  Decision  that  party  had  failed 
to  meet  terms  of  decree  for  specific  per- 
formance is  appealable — Lamprey  v.  St.  Paul 
&  C.  Ry.  Co.,  86  Minn.  509.  Vacation  of  de- 
cree after  term  (Code  Civ.  Proc.  §  5S1)  — 
Bannard  v.  Duncan  (Neb.)  90  N.  W.  947.  Re- 
fusing to  vacate — In  re  Lamona's  Estate, 
2S  Wash.  394.  69  Pac.  1093.  Modifying  or 
reversing  order  reducing  alimony  decree 
appealable — Davis  v.  Davis,  78  App.  Div. 
500;  Livingston  v.  Livingston,  173  N.  Y.  377. 
Orders  opening  judgment  on  judgment-note 
(Act  May  20,  1891,  p.  101),  al^  appealable 
with  final  judgment  (Act  April  4,  1877)  — 
Schomaker  v.  Dean,  201  Pa.  439.  Taxation 
of  costs  of  prosecution  to  county  whence  it 
came  and  in  favor  of  county  wliere  tried, 
appealable — Green  Lake  County  v.  Waupaca 
County,  113  Wis.  425.  An  order  subjecting 
to  a  judgment  money  deposited  as  b^curity 
for  appeal  costs  only  and  in  lieu  of  a  bond 
is    appealable — Mitchell    v.    Evans,    18    App. 

D.  C.   254. 

Held  not  final  op  appealable:  Vacation  of 
judgment — Metier  v.  Metier,  28  Wash.  734,  69 
Pac.  9.  Opening  decree  and  allowing  answer 
— Browne  v.  Croft  (Neb.)  93  N.  W.  406.    Over- 


102 


AND   RETViEW. 


settle  a  bill  of  exceptions  is  neitlier  a  "special  oitier  after  jiadgmenf  nor  a  final 
Older,  imder  the  California  statote."  Befmsal  to  vacate  jndgment,*'  or  denying 
Gonirmatian  of  a  paridtion  sale  in  pari,  is  such  a  special  order.*"  Setting  aside 
eKcnfioii  levy  and  sale  is  snch."  A  cost  decree  is  not  appealable  in  Lomsiana 
simplj  because  in  a  divorce  proceeding.** 

S.  Decisions  of  intermediate  cmuis  on  appeal  are  often  not  snbject  to  further 
review."  A  provision  giving  writ  of  error  to  review  judgments  of  named  dty 
courts  and  other  'Tikei®  courts  does  not  include  a  dty  court  whicb  diffeis  in  not 
having  a  common-law  jury  triaL**  K  onty  a  law  point  remains,  appeal  may  lie 
to  the  court  of  last  resort,  witbout  a  retrial  bdowf*  but  if  the  intermediato  court 
modifies  the  lower  court^s  order,  tiie  judgmoit  of  the  lower  court  as  entered  should 
not  be  taixn  to  the  hi^^best  court,  but  the  order  of  the  intermediate  court**  When 
the  fir^  appeal  is  tried  de  novo,  tiie  judgment  will  go  np,  if  otber  esaentials  of 
reviewability  coesisL"* 

Thev  must  oidinarlT  :  e  fni-  :    :  r  so  reviewable,**  or  leave  notbing  further  to 


mlins  motion  to  set  aside  Judgment  from 
wiurta  «»Mii»iiES!  were  omitted;  tbe  erm'  was 
renewable  with  the  judgment — Mantel  ▼- 
IfanteL.  1S5  CSl.  SIS,  «7  Pac  T5S.  Befosal  to 
'racate  jnndgment  wMch  reserved  leave  to 
nuLke  sowdi  application — Magmder  v.  Schley. 
17  App.  D-  C  227.  Order  imp«BSing  terms  om 
Tacation  of  jndgment  —  Board  of  Socorro 
OomntF  V-  BHacfcingtton  fNT.  M.)  «S  Pac  9S». 

Order  taximg  caste,  etc — Mmnray  ▼.  Jfcirth- 
em  Pac  B.  Oou.  2S  nbnt.  2SS,  C7  PacL  C3S. 
In  iiEpeadunent  procxedungs  against  jus- 
tice of  the  peace — In  re  Kelly,  17  Fa.  Soqper. 
Ct-  S44.  Befosing  to  retax— Warner  ▼.  God- 
frey. 17  AppL  Dl  C  lt2:  wmiams  -r.  Geta.  17 
AppL  D.  C  3SS.  Order  aUowing  additiGns  of 
fees  to  a  I'etmn  to  a  'writ,  not  reviewable 
unto  taxed  as  costs — Harding  x.  BOey.  ISl 
Mass.  334.  Order  tajdng  cost  reviewable 
with  judgment — Montana  Ore  Go.  v.  Boston 
&  M.  M.  Go.  (Mont-I  79  Pac  1114. 

Befmsal  to  g^***"**  time  for  settling  a  biU 
of  exe^ttions  does  not  affect  substantial 
rl^t.  The  statute  only  anthorixes  exten- 
sions of  time  of  proceedings  other  tSian  ap- 
peals CBev.  St.  1«»8,  I  2S31) — Hi.:-  " 
KurtxweO.  112  Tils.  231. 

8S.    Kaltschnudt  v.   Weber.   13<    Cal 
C9  Pac  497. 

87.     (Code  CSV.  Pr.  i  »39| — Hibeamiz    Si- 
lk Ll  Soc  V.  Gochran,  134  CaL  six.  SS  Pac 
732. 

8BL  Dunn  v.  Dunn.  137  GaL  51,  C9  Pac 
4ST. 

sai  Otis  Bros,  tt  Co.  v.  Xash,  26  "Wash. 
39.  SC  Pac  111- 

Befusal  to  set  aside  execution  is  not  the 
vacation  of  a  Judgment  vtrhlch  is  specially 
made  aniealablc — Stephens  v.  Addis.  19  Pa. 
Super.  Gt.  18S. 

Ml  Freie  v.  Labben,  197  Im.  79. 
91.  "T'ederal  review^  of  state  decisioras,'' 
see  post,  subsection  C-13.  Ordinarily  this 
is  done  by  prescribing  as  jurisdictional  facts 
an  amount  in  controversy  or  by  cBa^sifying 
the  decisions  with  respect  to  thtir  nature 
as  freehold  cases,  constitutional  cases,  etc; 
see  below.  {  4-GL  .Ijppflablr  «•  bieka-  cj— tts 
Befusal  to  compel  delivery  of  boohs  under 
Code  CSV.  Pr.  S  3471a.  goes  firom  appellate 
division  to  court  of  appeals — In  re  Brenner. 
17«  N.  T.  185;  Melody  v.  Goodiich,  Id.     Be- 


fusal on  appeal  to  drcutt  to  grant  li^fuor 
license  goes  to  appeals — Appeal  of  Cwndill. 
S3  Ky.  I.aw^  Beik.  2139.  The  court  of  appeals 
of  the  District  of  Golumbia  wiU  not  review 
a  dedsion  on  aqtpeal  frmn  a  justice  of  the 
peace  except  for  irant  of  jurisdiction  ap- 
parent on  the  record — Mitchell  v.  Bvans,  17 
A^pu  D.  C.  233.  Action  before  a  justice 
against  railroad  for  killing  stock  (Burns' 
Bev.  St.  1991,  S  5313)  is  within  justice's  Ju- 
risdiction though  concurrent  'with  the  cir- 
cuit court  if  demand  is  for  over  $39;  hence 
decision  <tf  <drcnit  is  condusfre  and  bo  bi^- 
er  appeal  lies — I.ake  Krie  k:  vr.  p. 
Watkins.  157  Ind.  C99. 

9B.    Gty  court  of  Americu^s    vA^^   1^ . .     z. 
93) — MfMDford  v.  State.  114  Ga.    sTS. 

93.     Erie  B.  Gc  v.  Steward.  !"<»  N"    T    1T2. 
Judgment  and  ord^  for  er  :  - ;        '    .     :!  r -  r  r. 
on  answer  as  frivolous  ptt  =  ^  -    -       ~  :  — 

HaUiday  v.  Barber  (N.  T. 

91.    Surrogate's    decree    ~     ;     r: 
appellate  division.     Anie£.l 
the  order  modifying  or   f r :  -      ■-      _''~-'    '--' 
firming  as  modified — Xa  re       -     r.    .  mst  Co.. 
:-?  >'   T.  494. 

■■■:•.     z>enial    of    afflplicat:    -  :  liters    of 

:    ;:rat5on  and  refuss.!  :         -:?   exist- 

r     '^--^-=    on    appeal    fr:-.     rr       i.t     ;:-r: 

?'-■■      S:      :vS9.    a   27*.    254      1    :    — Zr?- 
i  B-:r-  ''-     AppL  15.. 

and    reansr.  i  r--    " 

Sr     -  ^r.   Co.  X.   5:     L-     ^    :  :       :    - 

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ADJUDICATIONS    REVIEWABLE. 


103 


be  done  by  the  trial  court  but  to  execute  the  mandate.^'^  When  the  appellate  di- 
vision in  New  York  reverses  an  order  for  new  trial  on  ground  of  newly-discovered 
evidence,  and  affirms  the  judgment,  only  the  affirmance  can  go  on  to  the  court  of  ap- 
peals, the  other  being  on  the  merits.^^  Finality  of  an  affirmance  is  neutralized 
by  a  reversal  and  remand  of  the  same  judgment  on  a  cross  writ  of  error. ®^  Con- 
sent of  the  intermediate  court  cannot  give  appealability.^  Want  of  jurisdiction 
may  take  the  case  to  the  highest  court. ^  Judgments  on  appeals  to  lower  courts 
are  not  appealable  when  declared  to  be  "final."^ 

The  act  creating  federal  circuit  courts  of  appeal  did  not  destroy  finality  of  a 
circuit  court's  decision  on  appeal  from  a  general  board  of  appraisers  of  customs; 
hence  no  further  appeal  is  allowed  unless  there  be  a  certificate  of  importance.* 

9.  Paris  of  judgments. — Judgments  may  be  reviewed  in  part  so  far  as  they 
are   severable.^ 

C.  Dependent  on  character  or  value  of  action,  subject-matter,  or  controversy. — 
A  cause  is  not  appealable  by  stipulation  unless  one  of  the  jurisdictional  conditions 
exists."  If  special  grounds  of  appeal  be  relied  on,  the  proceeding  must  be  one 
which  may  involve  such  grounds.' 

1.  Nature  of  action. — Whether  an  action  is  civil  does  not  depend  on  the  proofs 
offered.^  A  penaP  or  mandamus  action  is  civil.^°  Mandamus  to  compel  placing 
an  officer's  name  on  a  pay  roll  is  not,  however,  a  civil  action  for  "recovery  of 


A  judg-ment  of  the  appellate  division  revers- 
ing- a  decree  which  reduced  alimony  goes  to 
the  court  of  appeals — Livingston  v.  Living- 
ston, 173  N.  Y.   377. 

97.  Remand  to  enter  judgment  "accord- 
ing to  opinion" — Friedman  v.  Lesher,  198  111. 
21.  Not  final  when  remanded  for  further 
proceedings  in  conformity  with  opinion 
which  held  that  the  error  consisted  in  fail- 
ing to  establish  one  element  of  the  right  to 
recover — Haseltine  v.  Central  Nat.  Bank,  183 
U.  S.  130,  46  Law.  Ed.  117.  Denial  of  motion 
in  appellate  division  to  vacate  attachments 
and  judgment,  not  final — Hammond  v.  Na- 
tional Life  Ass'n,  168  N.  Y.  262.  Reversal 
by  appellate  division  of  special  term  order 
modifying  final  order  is  final  and  appeal- 
able— In  re  Board  of  Education,  New  York. 
169  N.  Y.  456.  Reversal  by  court  of  appeals 
of  D.  C.  of  decree  refusing  injunction  and 
dissolving  preliminary  one,  and  remanding 
cause  for  final  injunction,  will  go  to  U.  S. 
supreme  court — Chesapeake  &  P.  Tel.  Co. 
V.   Manning,   186   U.   S.   238,   46  Law.   Ed.   1144. 

!)8.  The  appeal  was  was  dismissed  be- 
cause the  record  showed  no  entry  of  the 
affirmance — Reiss  v.  Pelham,   170  N.  Y.   54. 

99.  Error  from  U.  S.  circuit  court  of  ap- 
peals to  circuit,  dismissed  on  error  from  su- 
preme court — Montana  M.  Co.  v.  St.  Louis  M. 
&  M.,  186  U.  S.  24,  46  Law.  Ed.  1039. 

1.  Lewin  v.  Lehigh  Val.  R.  Co.,  169  N.  Y. 
336. 

2.  Justice's  judgment — Darrell  v.  Biscoe, 
94  Md.  684. 

3.  Appeal  to  circuit  court  from  survey- 
or's apportionment  of  ditch  maintenance 
(Burns'  Rev.  St.  1894,  §§  5633-5636) — Pitts- 
burg-, F.  W.  &  C.  Ry.  Co.  V.  Gillespie,  158 
Ind.  454.  Dismissal  of  appeal  by  district 
court  for  want  of  prosecution,  not  appeal- 
able beyond  district  court- — Smith  v.  Dis- 
trict Court,  24  Utah,  164,  66  Pac.  1065. 
Award  of  damages  in  eminent  domain — 
Goodsell  v.  Rutland-Canadian  R.  Co.,  74  Vt. 
206. 


4.  Error  from  the  higher  court  will  not 
lie — United  States  v.  Diamond  Match  Co. 
(C.   C.   A.)    115    Fed.    288. 

5.  In  re  Kittson's  Estate,  84  Minn.  493. 
Judgment  of  partial  dismissal  after  directed 
verdict  as  to  other  part — Wilson  v.  Me- 
chanical Orguinette  Co.,  170  N.  Y.  542.  One 
feature  was  favorable  to  each  party;  ap- 
peal must  be  entire — Crane  v.  Odegard  (N. 
D.)  91  N.  "W.  962.  Decree  of  interpleader  not 
severable  so  as  to  be  appealable  as  to  the 
discharge  of  plaintiff  only — New  Zealand 
Ins.  Co.  v.  Smith,  41  Or.  166,  69  Pac.  268. 
Dissolution  of  injunction  not  appealable 
apart  from  dismissal  of  bill — Burnham  v. 
Driggers  (Fla.)  32  So.  796.  Though  divorce 
is  not  appealable  costs  and  alimony  are — 
Alderson  v.   Alderson,   24   Ky.   Law   Rep.   595. 

6.  Denver  v.  Marselis,  29  Colo.  79,  66  Pac. 
887. 

7.  A  petition  for  correction  of  an  assess- 
ment is  limited  to  a  comparison  of  values 
fixed  on  other  assessable  property  (Mills' 
.\nn.  St.  §  3841),  and  hence  presents  no  con- 
stitutional freehold  or  franchise  questions — 
First  Nat.  Bank  v.  Board  of  Montrose  Coun- 
ty,  29  Colo.   114,  66  Pac.  890. 

8.  Action  to  cancel  a  charter  under  the 
anti-trust  act  is  appealable  to  the  civil  ap- 
peals though  the  facts  might  support  an  in- 
dictment— State  V.  Shippers'  Compress  &  W. 
Co.  (Tex.  Civ.  App.)  67  S.  W.  1049.  Action 
for  penalties  under  anti-trust  la-w  is  civil — 
State  V.  Waters-Pierce  Oil  Co.  (Tex.  Civ. 
App.)    67   S.   W.   1057. 

9.  Action  for  penalty  under  city  ordi- 
nance— Springfield  v.  Starke,  93  Mo.  App.  70. 

10.  Mandamus  is  a  civil  action  within 
the  jurisdiction  of  the  court  of  appeals. 
(3  Mills'  Ann.  St.  §  1002  d) — Orman  v.  People 
(Colo.  App.)  71  Pac.  430.  In  Illinois  man- 
damus being  appealable  as  civil  cases,  goes 
to  the  appellate  and  not  to  the  supreme 
eourt — People  v.  Deneen,   201   111.   452. 


104 


APPEAL   AND    REVIEW. 


monev.'"^^  Nor  is  an  action  one  for  recover}'  of  money  when  only  the  right  to 
interest  is  disputed.^^  An  action  ex  contractu  within  the  intermediate  jurisdic- 
tion refers  to  the  nature  of  the  cause  of  action,  and  not  to  the  form  of  the  action.^^ 

2.  Questions  of  law  afford,  in  some  courts,  a  jurisdictional  ground.^*  Errors 
assigned  in  the  form  of  an  application  to  condemn  property,  or  in  the  jurisdic- 
tion or  the  form  of  the  award,  are  purely  of  law,  which  makes  the  case  review- 
able in  the  supreme  court,  and  not  in  the  superior  court,  in  Connecticut.^^ 

3.  The  existence  of  a  constiiuiional  question  makes  cases  appealable,  either 
directly  or  ultimately,  to  the  highest  court  in  many  states,  and  to  the  federal  su- 
preme court.^®  Such  a  question  is  involved  if  the  judgment  is  in  pursuance  of 
decisions  on  the  unconstitutionality  of  the  law,^^  or  necessarily  involves  constitu- 
tional questions.^*  A  constitutional  question  is  raised  by  requesting  an  instruc- 
tion that  a  certain  vending  of  merchandise  was  interstate  commerce.^^  If  the  ques- 
tion is  no  longer  an  open  one,  the  constitutionality  of  a  statute  cannot  be  raised.^" 
Claims  of  right  under  federal  laws  must  have  some  litigable  merit."^  Validity  of 
a  statute  is  not  in  question  on  a  contention  merely  as  to  its  repeal--  or  construction.-^ 
If  a  direct  question  of  validity  of  the  statute  be  disposed  of  on  another  ground 
without  objection,  the  constitutional  question  is  not  raised.-*  The  lower  court  must 
decide  against  constitutionality  in  order  to  raise  a  question  for  jurisdiction  of  the 


11.  And  hence  is  appealable  though  the 
salary  involved  is  less  than  $200  (Const,  art. 

4,  I  4) — State  V.  Daggett,  28  Wash.  1,  68  Pac. 
340. 

13.  Whitehead  v.  Brother's  Lodge,  24  Ky. 
Law   Rep.    1633. 

13.  Action  to  reform  a  policy  and  com- 
pel a  payment  thereon — Clinton  Mut.  County 
Fire  Ins.  Co.  v.  Zeigler,  201  111.  371. 

14.  Striking  case  from  city  court  docket 
(Gen.  Stat.  1902,  §  78S,  giving  appeal  from 
"any"  question  of  law) — Sanford  v.  Bacon 
(Conn.)    54  Atl.   204. 

15.  Gen.  St.  §  1146;  Public  Acts  1897,  p. 
8S8,  §  1 — Hubbard  v.  Hartford.  74  Conn.  452. 

16.  W^.   U.    Tel.    Co.    V.    Reynolds    (Va.)    41 

5.  E.  856.  See  also  infra,  this  section.  "13, 
Federal  review  of  state  decisions."  Ques- 
tion of  conflict  between  state  law  and  fed- 
eral constitution,  ground  for  error  from 
supreme  to  circuit  court — Fidelity  M.  L. 
Ass'n  V.  Mettler,  185  U.  S.  308,  46  Law.  Ed. 
922. 

17.  Clark  V.  West  Virginia  C.  &  P.  R.  Co.. 
50  ysf.  Va.  1. 

IS.  Refusal  to  allow  receiver  to  pay  costs 
of  suit  in  which  he  was  appointed  does  not 
involve  "due  process  of  laTr" — Chicago  Gen. 
Ry.  Co.  V.  Sellers.  191  111.  524.  Legality  of 
adoption  of  amendment  to  constitution 
adopting  three-fourths  vote  of  jury — Boling 
V.  St.  Louis  &  S.  F.  R.  Co.,  94  Mo.  App.  67. 
Prohibition  of  retrospective  laws  involved 
in  a  controversy  over  the  validity  of  a 
pledge  made  before  the  usury  laws  and  re- 
newed afterwards — Marx  v.  Hart,  166  Mo. 
503.  A  county  attorney  rightfully  employed 
under  a  statute  contemplating  that  he  shall 
serve  in  addition  to  the  district  attorney, 
does  not  supplant  a  constitutional  officer; 
hence  vrhen  the  district  attorney  sues  for 
fees  in  suits  conducted  by  the  county  at- 
torney, no  constitutional  question  arises. 
(Const,  art.  6.  §  21;  Mills'  Ann.  St.  §5  S13. 
1551) — McMullin  v.  Board  of  Commission- 
ers,   29   Colo.    478.    68    Pac.    779.     Habeas   cor- 


pus tried  on  the  theory  that  the  prisoner 
■was  twice  punished  for  the  same  offense — 
Carter  v.  McClaughry,  1S3  U.  S.  365.  46 
Law.  Ed.  236.  Refusal  to  charge  on  the  bur- 
den of  proof  in  a  libel  suit  does  not  raise  the 
constitutional  right  to  prove  the  truth  in 
such  a  case — Hanlon  v.  Pulitzer  Pub.  Co.,  167 
Mo.  121. 

19.  Action  for  penalty  for  selling  -with- 
out license — Canton  v.  McDaniel,  91  Mo. 
App.   626. 

30.  Equitable  Life  Soc.  v.  Brown.  187  U. 
S.  308.  Domesticity  of  commerce  by  tele- 
gram between  domestic  termini  but  over 
route  partly  in  foreign  state — W.  U.  TeL  Co. 
V.  Reynolds  (Va.)  41  S.  E.  856.  Legality  of 
act  already  settled  by  decisions — Van  Camp 
Hardware  &  Iron  Co.  v.  O'Brien,  28  Ind.  App. 
152.  Constitutionality  of  Acts  1895.  pp.  58. 
59.  dispensing  with  allegations  of  freedom 
from  contributory  negligence,  has  been  set- 
tled— Atlanta  Nat.  Gas,  etc.,  Co.  v.  Boyer. 
28   Ind.  App.  516. 

31.  A  federal  question  is  not  raised  so 
as  to  oust  jurisdiction  by  an  answer  in  re- 
plevin that  as  a  for^warder  having  paid  cus- 
toms duties  on  the  goods  defendant  was  en- 
titled under  the  federal  la^ws  to  be  subro- 
gated to  the  lien  of  the  customs  duties — 
State  V.  Bland,  168  Mo.  1. 

33.     Pearce  v.  Vittum.  193  111.   192. 

33.  The  question  whether  an  act  author- 
izing a  recovery  of  damages  from  dealers 
in  intoxicating  liquors  required  that  the  in- 
jury be  attributable  to  the  intoxication  as 
a  cause,  is  one  of  construction  and  not  of 
constitutionality — Sauter  v.  Anderson.  199 
111.  319.  The  question  whether  Act  Feb.  25. 
1898.  created  the  office  of  supervisor  of  as- 
sessment or  merely  added  such  duties  to  the 
county  treasurer  is  one  of  construction  and 
not  constitutionality — Foote  v.  Lake  Coun- 
ty, 198  111.  638. 

34.  Instruction  that  law  was  invalid  re- 
fused because  inapplicable  to  issue — Village 
of  Morgan  Park  v.  Knopf,  199  111.  444. 


ADJUDICATIONS    REVIEWABLE. 


105 


supreme  court  in  Louisiana. -°  The  constitutional  question  must  be  raised  on  trial,^* 
or  at  least  in  the  trial  court.^^  None  is  presented  if  the  cause  was  dismissed  be- 
fore hearing.28  Such  a  question  is  not  presented  so  as  to  give  jurisdiction  to 
the  United  States  supreme  court  when  first  raised  in  the  state  court  of  appeal, 
and  for  that  reason  not  passed  on.-^ 

4.  Construction  of  statutes  and  public  regulations  is  of  itself  a  ground  in  In- 
diana.^" An  action  to  recover  a  fine  is  not  one  "to  test  the  validity  of  regulations" 
adopted  by  a  public  body,  and  made  specially  appealable.^^  A  justice's  judgment 
does  not  involve  construction  of  the  statute,  where  the  pleadings  bring  the  parties 
within  the  statute,  and  the  sole  question  is  one  of  proof.^- 

5.  Jurisdictional  questions  are  not  raised  by  a  finding  of  the  existence  or  non- 
existence of  facts  calling  into  force  a  special  remedy.^^ 

6.  Conflicting  or  overruling  decisions. — In  Missouri,  a  decision,  to  be  cer- 
tifiable to  the  supreme  court  as  in  conflict  with  its  decisions,  must  be  on  the  whole 
case,  and  not  alone  on  a  single  point.^*  In  Texas,  error  will  lie  if  civil  appeal 
decisions  be  in  conflict,  though  the  latter  one  is  a  reversal,  and  remands  the  case.^' 
A  conflict  must  be  well  defined  to  warrant  certification.^®  The  case  should  be 
certified  if  one  decision  conforms  to  the  supreme  court  decision,  and  the  other  con- 
flicts ;^^  but  if  the  question  has  already  been  decided  by  the  supreme  court,  it  should 
not  be  certified  again. ^^  The  supreme  court  will  not  issue  a  writ  of  error  on  the 
ground  that  the  civil  appeals  has  overruled  its  former  decision,  unless  the  lower 
court  "practically  settles  the  case."^^ 

7.  Revenue  and  tax  cases. — The  revenue  is  not  directly  affected  by  a  suit  to 
annul  a  public  contract  for  street  improvements,  and  to  enjoin  payments  there- 
under,*** or  by  controversy  as  to  apportionment  of  funds,*^  or  by  action  to  compel 
the  furnishing  of  duplicate  books.*-  An  action  to  collect  taxes  may  involve  the 
construction  of  facts  for  the  collection  of  taxes  by  cities  without  construing  "the 
revenue  laws  of  the  state."*' 

In  Louisiana,  a  question  of  the  legality,  but  not  the  regularity,  of  tax,  carries 


25.  state   V.   Pollock,    108  La.    594. 

26.  To  oust  jurisdiction  of  court  of  ap- 
pf^als — Kreyling  v.  O'Reilly  (Mo.  App.)  71 
S.  W.  372. 

27.  Question  raised  on  n«w  trial  timely 
if  there  was  no  occasion  to  do  so  earlier — 
Barber  Asphalt  Co.  v.  Ridge,  169  Mo.  376. 
General  statement  of  unconstitutionality  of 
an  ordinance  in  brief  does  not  raise  ques- 
tion— Standard  Oil  Co.  v.  Danville,  199  111. 
50. 

28.  Enjoining  acts  of  a  city  as  unconsti- 
tutional— Harding  v.  Carthage  (Mo.)  71  S. 
W^   673. 

29.  Jacob!  V.  Alabama,  187  U.  S.   133. 

30.  An  action  involving  construction  of 
a  statute  relating  to  fees  of  constables  will 
go  from  the  circuit  court  to  the  supreme 
court,  though  the  amount  sued  for  was 
within  a  justice's  jurisdiction  (Rev.  St.  1901, 
§  1337h) — State  v.  Bagby,  29  Ind.  App.  554. 

31.  Regulations  of  a  railroad  commission 
(Const,  art.  285) — Railroad  Commission  v. 
Kansas  City  So.   R.   Co.,    107  La.    450. 

32.  Terre  Haute  &  L.  R.  Co.  v.  Erdel,  158 
Ind.  344. 

33.  Dismissal  of  a  petition  in  voluntary 
bankruptcy  on  the  ground  that  defendant 
was  chiefly  engaged  in  farming — First  Nat. 
Bank  v.  Klug,  186  U.  S.  202,  46  Law.  Ed. 
1127. 


34.  Const.  Amend.  1884,  §  6 — Gipson  v. 
Powell,  167  Mo.  192. 

35.  Harn  v.  American  B.  &  S.  Ass'n,  95 
Tex.  79. 

36.  McCurdy  v.  Conner  (Tex.)  66  S.  W. 
664. 

Decision  that  district  can  adopt  local  op- 
tion though  it  is  already  in  force  in  part  of 
district  does  not  conflict  with  one  that  it 
cannot  vote  when  it  is  already  in  force  in 
the  county — Kidd  v.  Rainey,  95  Tex.  556. 
Decisions  on  the  right  to  make  openings  in 
a  railroad  fence  held  not  in  conflict — Inter- 
national &  G.  N.  R.  Co.  V.  Richmond  (Tex. 
Civ.  App.)    67  S.  W.   1029. 

37.  Decisions  upon  materiality  of  survey 
in  trespass  to  acquire  title — McCurdy  v. 
Conner  (Tex.)   66  S.  W.   664. 

3S.  Toacham  v.  McCurdy,  27  Tex.  Civ. 
App.  183. 

39.  Rev.  St.  art.  941,  subd.  8,  art.  943 — 
Rotan  Grocery  Co.  v.   Rogers,   95   Tex.   437. 

40.  Wells  V.  Rogers,   196  111.   292. 

41.  Conflict  of  claims  of  municipalities  to 
public  funds — Reed  v.  Chatsworth,  201  111. 
480. 

42.  Assessment  books— People  v.  Hendee, 
199   111.   55. 

43.  Const,  art.  6,  §  12 — Hannibal  v.  Bow- 
man, 167  Mo.   535. 


106 


APPEAL    AND    REVIEW. 


the  case  to  the-  supreme  court.**  Its  constitutionality  or  legality  is  not  involved  by 
seeking  to  compel  issue  of  certificate  that  poll  tax  has  been  paid.*^  Assessments 
levied  by  action  of  taxpayers  do  not,  imless  the  proper  amount  be  involved,  go  to  the 
supreme  court.*' 

8.  Cases  involving  freeholds  and  titles.— A  judgment  and  not  the  prayer  deter- 
mines whether  freehold  is  involved.*'  A  freehold  or  the  title  to  realty  is  involved 
if  the  effect  of  decree  is  to  transmute  it  from  one  person  to  another,  or  if  the  decision 
necessarily  involves  passing  of  the  title,  though  it  is  not  in  fact  changed.*^  In 
Missouri  it  is  not  sufficient  that  the  title  to  land  is  collaterally  investigated.*^  It 
is  necessarily  involved  whenever  title  is  disputed  f^  hence  it  is  involved  if  the  ques- 
tion be  whether  a  highway  legally  exists,^^  or  on  proceedings  to  vacate  and  re- 
establish a  highway,"  but  not  if  the  mere  fact  of  existence  is  in  issue,  as  in  an  ac- 
tion for  penalties  for  obstructing.^^  The  assertion  of  a  life  estate  as  against  the 
claim  of  easement  is  one  of  freehold.^*  So  is  the  assertion  of  an  easement  in  a  high- 
wav,^^  or  the  assertion  of  a  right  of  inheritance  of  a  child  against  devises  by  its 
father.^^  If  one  in  possession  of  land,  resisting  an  attempt  to  evict  him,  seeks 
the  annulment  of  plaintiff's  title,  the  title,  and  not  alone  the  possession,  is  in  issue 
for  jurisdictional  purposes.^^  A  title  is  involved  if  an  ejectment  defendant  bought 
in  on  execution  sale  to  pay  the  costs,  and  was  afterwards  sued  to  recover  posses- 
sion.^® It  may  be  involved  by  intervention  to  assail  an  attachment  defendant's 
title,^'  but  is  not  affected  by  a  suit  to  remove  a  sheriff's  certificate  of  sale  as  a 
cloud  on  the  title.®"     A  suit  to  compel  a  conveyance  to  the  purchaser  whose  right 


44.  Legality  of  sidewalk  tax  appealable 
— S.  D.  Moody  &  Co.  v.  Chadwick,  108  La. 
66.  Action  assailing  tax  books  for  want  of 
taxing  power  and  also  because  of  illegalitj* 
of  assessment,  is  appealable  though  the  lat- 
ter ground  alone  would  be  insufficient,  tin- 
less  the  jurisdictional  amount  was  involved 
— Tebault  V.  New  Orleans,  108  La.  686.  If 
an  assessment  be  assailed  solely  for  irregu- 
larity, it  must  involve  the  jurisdictiortal 
amount — State  v.  Board  of  Assessors,  107  La. 
572.  A  tax  assailed  because  the  collector 
had  failed  to  do  certain  things  and  was 
therefore  without  authority  to  proceed,  does 
not  involve  constitutionality  and  legality 
of  the  tax  but  only  regularity  of  the  col- 
lector's proceedings — State  v.  Delgado,  107 
La.  72. 
•    45.     McAyeal  v.   Murrell.   108  La.   116. 

46.  Ayers  Pav'g  Co.  v.  Loewengardt  (La.) 
33  So.   553. 

47.  The  complainant  sought  to  recover 
mining  claims  and  judgment  was  given  un- 
der the  cross  complaint  for  a  lien  on  the 
claims — Weiss  v.  Gullett.  29  Colo.  121,  67 
Pac.  155. 

48.  Mills  v.  Wilson.  95  111.  App.  88;  Petty- 
john V.  Adams,  95  111.  App.  243;  Hanon  v. 
Jones,  100  111.  App.  583;  Smith  v.  Patton,  97 
111.  App.  180;  McDavid  v.  Sutton,  104  111.  App. 
626.  Suit  to  set  aside  a  divorce  as  against 
heirs  of  one  of  the  parties  who  died  seised 
of  realty,  does  not  involve  freehold — Maher 
V.  Title"  Guaranty  &  Trust  Co.,  95  111.  App. 
365.  Suit  to  vacate  a  decree  amounting  to 
a  muniment  of  title,  involves  title  to  realty 
— Pelz  V.  Bollinger,  87  Mo.  App.  540.  Seek- 
ing to  set  aside  fraudulent  conveyance  and 
revest  title  in  owner  involves  title — Balz  v. 
Nelson  (Mo.)  72  S.  W.  527.  Suit  to  cancel  a 
trust  deed  and  the  notes  secured  for  failure 
of  consideration  and  duress,  involves  title — 
Lappin  v.  Crawford,   92  Mo.  App.   453. 


49.  Side  issue  on  the  question  of  owner- 
ship to  determine  whetlier  proper  notice 
was  given  to  foreclose  a  mechanic's  lien — 
P.  M.  Bruner  Granitoid  Co.  v.  Klein  (Mo.) 
70  S.   W.   687. 

50.  Smith  V.  Patton,  97  111.  App.  180. 
Title  is  involved  by  suit  designed  to  assert 
title  as  against  an  estoppel  to  claim  it — 
Spence  v.  Renfro,  88  Mo.  App.  59.  Free- 
hold pleaded  to  trespass  q.  c.  f. — Patterson 
V.  T.  J.  Moss  Tie  Co.,  24  Ky.  Law  Rep.  1571. 
Freehold  pleaded  to  trespass — Roach  v.  T. 
J.  Moss  Tie  Co..  24  Ky.  Law  Rep.  1222.  It 
may  be  put  in  issue  by  plea  of  general  issue 
— Dolton  V.  Malin,  102  111.  App.  417. 

51.  Cox  V.  Commissioners.  97  111.  App. 
218.  Injunction  against  laying  out  road  on 
the  ground  that  title  had  not  been  divested, 
involves  freehold — Commissioners  of  High- 
ways V.  Elwood,  96  111.  App.  239.  Title  de- 
cided in  suit  enjoining  penal  action  for  ob- 
struction of  a  highway — Village  of  Dolton 
v.   Dolton.   196  111.   154. 

52.  Perry   v.   Bozarth,    198   111.    328. 

53.  Action  for  penalty  for  failure  to  cut 
hedge  fences— Herman  v.  Commissioners. 
197  111.  94.  Freehold  not  involved  in  action 
for  penalty  for  obstructing  highway — Seid- 
schlag  V.   Antioch,    198    111.    413. 

54.  Truax   v.    Gregory,    98    111.    App.    395. 

55.  Village  of  Dolton  v.  Dolton,  99  111. 
App.  141.  Village  street — Harlem  v.  Sub- 
urban R.  Co.,   198   111.   337. 

56.  Flannigan  v.  Howard,  101  111.  App. 
616. 

57.  State  v.   Judges,   107  La.   487. 

58.  Tice  V.   Hamilton,   94   Mo.  App.    198. 

59.  Alsdurf  v.   Williams,   196   111.   244. 

60.  Johnson  v.  McDonald.  196  111.  394. 
A  sheriff's  certificate  was  assailed  on  the 
ground  that  the  property  was  a  homestead 
and  that  the  sale  was  not  regular — Charles- 
ton    State     Bank     v.     Brooks,     197     111.     388. 


ADJUDICATIONS    REVIEWABLE. 


107 


is  not  controverted  involves  no  title."^  ISTo  question  of  freehold  is  involved  in  ap- 
plication for  writ  of  assistance/^  or  an  injunction  against  interfering  with  opening 
a  road,  and  to  compel  acceptance  of  damages  awarded,''^  or  on  petition  to  discon- 
nect land  from  a  city,  where  the  sole  questions  are  whether  it  is  unplatted,  and 
whether  petitioner  owns  all  of  it;^*  but  "title  to  realty"  is  affected  by  injunction 
against  obstruction  of  an  easement.^^ 

Proceedings  to  foreclose  liens  on  land  do  not,  as  a  rule,  involve  freeholds.^® 
Title  is  not  the  substantive  fact  put  in  litigation  by  a  plea  of  adverse  title  to  a 
foreclosure  suit  f  otherwise,  if  it  be  by  cross  bill.^* 

Suit  of  trustee  in  bankruptcy  to  set  aside  fraudulent  conveyance  does  not  in- 
volve freehold  if  claims  are  paid  from  another  source  f^  otherwise  it  does.'''' 

Boundary  cases  do  not  include  all  actions  in  which  a  boundary  is  the  issue.'^^ 

9.  A  francliise  is  involved  wherever  the  court  must  necessarily  determine 
whether  or  not  one  exists,''^  as  in  quo  warranto  assailing  validity  of  a  municipal 
organization,'^  or  action  seeking  dissolution  and  receivership  of  a  corporation.^* 
No  franchise  is  involved  on  a  bill  to  set  aside  a  conveyance  of  letters  patent,''^ 
nor  in  a  controvers}^  over  the  right  to  a  corporate  name.''® 

10.  Prolate  and  administration  orders  are  usually  appealable.''  A  judgment 
of  the  county  court  in  Illinois,  holding  a  legatee's  petition  for  an  accounting  de- 
murrable, is  appealable  to  the  circuit,  and  not  to  the  appellate,  court;'®  also  a 
proceeding  to  compel  the  surrender  of  property  under  the  administration  act.'^ 

11.  The    jurisdictional    amount    in    controversy,    as    prescribed   by    statute,®" 


Freehold  not  involved  in  appeal  to  set  aside 
judgment  and  suppress  record  as  a  cloud 
on  title  for  lack  of  jurisdiction  of  the  per- 
son— Helton   V.   Elledge,    199   111.    95. 

61.  Krepp  v.  St.  L.  &  S.  F.  R.  Co.  (Mo. 
App.)    72   S.   W.   479. 

63.     Kerr  v.  Brawley,  193  111.   205. 

63.  Rhoten   v.   Baker,    193   111.   271. 

64.  Roodhouse  v.   Briggs,   194   111.   435. 

65.  Against  obstruction  of  a  stairway 
claimed  as  an  easement — Peters  v.  Worth, 
164  Mo.   431. 

66.  The  mere  question  whether  a  mort- 
g'age  continued  in  existence  or  was  extin- 
guished, does  not  involve  a  freehold — Poole 
v.  Kelsey,  95  111.  App.  233.  Judgment  in 
suit  to  quiet  title  finding  a  lien  and  char- 
ging same,  does  not  involve  title — Rowe  v. 
Current  River  Land  &  Cattle  Co.,  167  Mo. 
305.  A  suit  to  subject  a  trustee's  title  to  a 
lien  of  her  creditor  as  against  the  cestui 
que  trust  on  the  ground  that  they  had  held 
out  the  trustee's  ownership  and  procured 
credit  to  her,  does  not  involve  title  to  real 
estate  though  the  prayer  is  that  title  be 
declared  in  the  trustee  for  such  purpose — 
Klingelhoefer   v.   Smith    (Mo.)    71   S,   W,   1008. 

67.  Tarr  v.  Abrams,  64  Kan.  887.  68  Pac. 
605, 

68.  Cross  bill  alleging  adverse  title  to  a 
foreclosure  involves  freehold — Parlin  & 
Orendorff  Co.  v.   Galloway,   95  111.  App.   60. 

6».     Lament  v.    Regan,    96   111.   App.   359. 

70.  Smith   v.  Patton,   97   111.  App.   180. 

71.  An  action  on  a  contract  for  sale  of 
land  will  go  to  the  Texas  supreme  court 
though  the  sole  issue  is  on  a  boundary — 
Steward  v.   Coleman   County,   95   Tex.   445. 

72.  People  v.  School  Directors,  97  111.  App. 
108. 

73.  People   v.  Marquiss,   192  111.   377. 

74.  Bixler  v.  Summerfleld,  195   111.  147. 

75.  Maginn  v.   Bassford,   196   111.    266. 


76.  Jockish  V.  Deutcher  Krieger  Verein, 
98  111.  App.   9. 

77.  Interlocutory  orders  must  decide 
rights,  affect  merits  or  aggrieve  paVties — 
Lane  v.  Thorn,  103  111.  App.  215.  Order  to 
file  inventory  and  accounting  appealable  in 
Rhode  Island  (Gen.  Laws,  c.  248,  §§  1-3)  — 
Tillinghast  v.  Brown  University  (R.  I.)  52 
Atl.  891.  A  petition  for  a  fuller  accounting 
by  one  administrator  will  in  Maryland  be 
regarded  as  addressed  to  the  general  juris- 
diction of  the  orphans'  court  and  not  to  the 
special  jurisdiction  given  where  he  has 
"concealed"  or  has  omitted  to  return  prop- 
erty in  his  hands,  hence  a  decree  should  be 
reviewed  in  the  court  of  appeals  instead  of 
making  up  issues  to  try  the  fact  as  pro- 
vided In  the  special  statute. — Cummings  v. 
Robinson,  95  Md.  83.  May  be  further  ap- 
pealed when  tried  de  novo — Burge  v.  Burge, 
94  Mo.  App.  15.  An  order  refusing  to  set 
aside  an  order  of  final  settlement  may  be 
appealed  though  It  is  without  prejudice  if 
it  is  too  late  to  apply  again — Yakel  v. 
Yakel,  96  Md.  240.  Order  to  executor  to 
petition  for  sale  of  land  decides  no  right — 
Lane  v.  Thorn,  103  111.  App.  215.  An  exec- 
utor is  aggrieved  by  refusal  to  probate  a 
codicil — In  re  Stapleton's  Will  (N.  Y.)  71 
App.  Div.  1. 

78.  The  proceeding  is  statutory  and  not 
a  suit  or  proceeding  "at  law"  or  "in  chan- 
cery" w^ithin  the  appellate  court  act — - 
Rochey  v.   Downey,   98   111.  App.   320. 

79.  People  v.   Benson,   99   111.   App.    325. 

80.  The  supreme  court  will  not  entertain 
appeal  to  grant  new  trial  from  Buffalo  mu- 
nicipal court  if  neither  party  pray  judg- 
ment for  $50 — King  v.  Norton  (N.  Y.)  36 
Misc.  53.  Less  than  $25  will  not  go  either  \ 
to  the  appeals  or  supreme — Moore  v.  State,  | 
63  Kan.  886,  66  Pac.  239. 


108 


APPEAL   AND   REVIEW. 


usually  excludes  costs,"  and  is  reckoned  by  the  sum  claimed,  not  the  amount  re- 
covered.^2  Thus,  the  demand,  and  not  the  amount  owing  by  a  garnishee/^  or  the 
amoimt  of  liens  claimed,  not  that  of  the  decree  adjusting  them,  controls  f*  but  if  a 
judgment  be  the  subject  of  action,  the  original  demand  is  ignored.^^  Costs  taxed 
against  an  attorney  on  dismissing  an  action  should  be  regarded  as  a  part  of  the 
main  judgment  in  determining  the  amount;^®  but  contra  if  the  taxation  or  al- 
lowance of  costs  is  not  an  incident  of  the  main  demand.^^ 

Jurisdiction  of  suits  on  "contract"  involving  a  specified  amount  excludes  in- 
terest and  costs.®®  If  the  appealability  depends  on  the  amount  of  the  "judg- 
ment," a  provision  for  the  transfer  of  property  of  imspecified  value  will  not  aid  a 
money  judgment  which  is  below  a  specified  sum.®® 

if  title  to  land  be  involved,  the  value  of  it  is  in  many  states  no  longer  a  juris- 
dictional element;®"  but  in  Louisiana  the  appealability  of  an  action  for  partition 
by  licitation  among  the  heirs  is  determined  by  the  sum  in  controversy,  if  the  only 
dispute  is  the  obligation  of  an  heir  to  collate.®^  Likewise  of  a  suit  for  partition 
of  the  commimity  property  when  independent  of  a  judgment  of  separation.®^ 
In  other  states  a  certificate  of  importance  or  the  like  must  also  be  had  if  the  land 
is  worth  less  than  the  limit  of  value.®^  An  action  by  a  partial  assignee  in  his  own 
name  alone  on  a  chose  in  action  is  at  law,  and  must  involve  the  jurisdictional 
amount.®*  Actions  to  recover  money  or  personalty  do  not  include  those  where  the 
right  to  interest  is  the  subject  of  litigation.®^ 

The  amount  not  only  may,  but  must,  be  necessarily  involved.®'  The  amount 
of  the  mortgage  debt  will  be  included  with  defaulted  interest  in  an  action  seeking 
foreclosure  on  the  ground  that  the  default  matured  the  debt.®^  In  forcible  entry, 
the  rental  value  is  the  amount  in  controversy.®®     In  a  boundary  case,  the  value 


SI.  Lockett  V.  Clifford,  24  Ky.  Law  Rep.  1. 
Judgment  in  disbarment  proceedings  repri- 
manding respondent  and  taxing  him  witli 
$61  costs  is  appealable  though  less  than 
$100  is  involved — State  v.  Tracy,  115  Iowa. 
Tl. 

82.  Kirby  v.  Ranter-Grand  Hotel  Co.,  28 
Wash.  705,  69  Pac.  378;  Howard  v.  Mays- 
ville  &  B.  S.  R.  Co.,  24  Ky.  Law  Rep.  1051. 
Demand  for  over  $200. — judgment  $185  is 
appealable — Dugdale  v.  Doney,  28  Ind.  App. 
283.  In  Kansas  it  is  the  amount  which 
might  have  been  recovered  under  the  alle- 
gations of  the  complaint  —  Pampel  v. 
Downey,  64  Kan.  888,  68  Pac.  607.  The 
amount  in  controversy  exceeds  $100  so  as 
to  give  an  appeal  to  the  court  of  civil  ap- 
peals, where  the  suit  Tvas  originally  for  $200 
before  a  justice  of  the  peace  but  judgment 
for  $50  was  recovered  in  the  county  court 
(Rev.  St.  1895,  art.  996)— Gulf,  C.  &  S.  F.  R. 
Co.  V.  Cunnigan,  95  Tex.  439. 

83.  Hutmacher  v.  Anheuser-Busch  Brew- 
ing Ass'n,    198   111.    613. 

84.  M.    Pugh   Co.   V.   Wallace,    19S   111.    422. 

85.  Defendant's  action  of  nullity  upon  a 
judgment  against  him  for  $1500  resulting 
from  a  suit  for  S5000  involves  too  little — 
Royal  V.  Frederick  Leyland  &  Co.  (La.)  33 
So.  49.  On  a  decree  for  money  found  due 
on  a  trustee's  accounting,  the  amount  de- 
creed and  not  the  difference  between  it  and 
the  amount  originally  claimed  against  him 
was  held  to  be  in  controversy — Prentice  v. 
Hancock    (Pa.)    53   Atl.    763. 

86.  Dismissal  of   $34,000   suit   taxing   costs 


of    less    than    $300 — People    v.    Madden,    134 
Cal.  611,  66  Pac.  .874. 

87.  Attorney's  fees  allowed  for  services 
in  a  foreclosure — State  v.  Judges,  106  La. 
241. 

88.  Note  for  $100  with  interest,  making 
in  all  less  than  $200,  is  within  "justice's 
jurisdiction"  of  "suits  on  contract  not  in- 
volving more  than  $100"  and  not  within 
concurrent  jurisdiction  of  justices  up  to 
$200  (see  Statutes) — Shaul  v.  Citizens'  State 
Bank,    157   Ind.    281. 

SO.  T^ucey  V.  Patterson,  29  Colo.  290,  68 
Pac.  239. 

90.  injunction  against  execution — Park 
V.  McReynolds,  23  Ky.  Law  Reij.  894.  Fore- 
closure of  liens — Davis  v.  Ramage,  23  Ky, 
Law  Rep.   1420. 

91.  Succession    of   Magi,    107    La.    208. 

92.  Melancon   v.   Wilson,    107    La.    628. 

93.  Judgment  lien  of  less  than  $100 — 
Hidy  V.   Hanson,   116   Iowa,   8. 

94.  Barto  v.  Seattle  &  I.  R.  Co.,  28  Wash. 
179,   68   Pac.    442. 

95.  In  Kentucky  if  the  right  to  Interest 
as  distinguished  from  the  amount  due  be 
in  controversy,  the  court  of  appeals  may 
take  jurisdiction  though  the  amount  would 
otherwise  exclude  It  (Ky.  St.  §  950) — Wliite- 
head  v.  Brothers  Lodge,  24  Ky.  Law  Rep. 
1633;   Same  v.  Ellis.  Id. 

96.  $200  fees  and  $65  a  month  alimony  is 
not   $1000 — Miles   v.   Miles,   200   111.    524. 

97.  Forest  Hill  B.  &  L.  Ass'n  v.  McEvoy'a 
Ex'r,   24  Ky.   Law  Rep.   161. 

98.  Towle  v.  Weise,  64  Kan.  760,  68  Pac 
637. 


ADJUDICATIONS    REVIEWABLE, 


109 


is  not  that  of  the  adjoining  tracts,  but  that  of  the  disputed  strip.®'  In  replevin, 
the  total  value  of  all  the  property  is  taken,  though  different  persons  recover  par- 
ticular chattels,  worth  less  than  the  limit.^  Successive  yearly  values  of  a  right  like 
a  lease  or  easement  are  aggregated  only  when  all  are  involved.-  When  specific 
recovery  of  a  chattel  is  sought,  its  value  as  alleged  is  taken.^  An  injunction 
against  a  fee  bill  is  not  a  money  judgment  or  one  for  property,  within  the  limita- 
tions.* Sometimes  the  value  of  the  right  to  be  protected  by  the  injimction  is 
taken.^ 

Admitting  part  of  a  demand  reduces  the  amount  in  controversy,^  as  does  en- 
tering a  remittitur  of  part  before  judgment,'^  or  withdrawing  part  by  amendment 
before  going  to  the  jury.^  If  property  claimed  be  surrendered  and  accepted,  its 
value  is  no  longer  in  controversy,  and  cannot  be  added  to  the  damages  claimed.® 
In  an  action  to  recover  land,  its  value  is  to  be  computed  notwithstanding  defend- 
ant's disclaimer,  if  he  claims  the  value  of  the  buildings  and  denies  plaintiff's  title.^" 
On  an  executor's  accounting,  the  amount  with  wliich  he  voluntarily  charges  him- 
self is  not  in  dispute.^^  Abandonment  of  an  appeal  by  a  defendant  does  not  aban- 
don his  plea  of  reconvention,  on  which  alone  the  jurisdictional  amount  is  brought 
into  controversy.^^ 

Sums  demanded  in  each  of  several  counts  may  be  aggregated.^^  A  contract 
debt  and  a  coimterclaim  may  be  added  to  make  the  amount.^*  When  one  sues  for 
himself  and  others,  then  the  entire  sum  is  taken.^°  Likewise  when  actions  are 
consolidated  and  tried  without  objection.^®  A  judgment  in  solido  against  the 
principal  and  surety  may  be  appealed  if  a  judgment  exceeding  the  jurisdictional 
amount  was  sought  against  the  principal  only,  while  a  lesser  sum  was  asked  against 
the  surety ,^'^  but  the  judgment  must  be  joint.^^  Intervening  claimants  cannot  ag- 
gregate disconnected  claims,^®  nor  can  several  beneficiaries  of  a  trust.-" 


99.     Salles  v.  Jacquet,   108  La.   107. 

1.  Goodyear  Rubber  Co.  v.  Schreiber,  29 
Wash.    94.    69   Pac.    648. 

3.  Easement  worth  $120TJ  a  year  for  30 
years,  involves  more  than  $4500 — Overall  v. 
St.  L.  Traction  Co.,  88  Mo.  App.  175.  The 
jurisdictional  sum  of  $100  is  not  involved 
in  a  proceeding'  to  forfeit  a  lease  after  one 
year's  payment  had  been  made,  the  lease 
providing  that  it  might  be  continued  for  5 
years  on  payment  of  $20  a  year — Barker  v. 
Lanyon  Zinc  Co.,  64  Kan.  884,   67  Pac.  629. 

3.  Action  for  recovery  of  horse  (alleged 
worth  $100)  and  for  $25  damages,  not  $200 
in  controversy — Ziegler  v.  Heile,  23  Ky.  Law 
Rep.   1125. 

4.  Shackelford  v.  Phillips,  24  Ky.  Law 
Rep.   154. 

5.  Sufficient  if  damages  exceeding  juris- 
dictional amount  will  befall  if  injunction 
be  refused — Marx  &  Haas  Co.  v.  Watson, 
168  Mo.  133,  56  L.  R.  A.  951.  Injunction 
against  misusing  public  property  worth 
twenty  thousand  (20,000)  dollars — Sugar  v. 
City  of  Monroe,  108  La.  677,  32  So.  961. 

6.  To  the  difference  between  the  amounts 
— Hedrick  v.  Mutual  Guarantee  B.  &  L. 
Ass'n,  51  W.  Va.  421.  The  statutory  amount 
$200  was  recovered  but  appellant  had  ad- 
mitted $1.40  due;  hence  not  appealable — 
Illinois  Cent.  R.  Co.  v.  Landram,  23  Ky.  L,aw 
Rep.  1956. 

7.  State    v.    Judges,    107    La.    784. 

S.  Dodge  V.  Corliss,  28  Wash.  474,  68 
Pac.  869. 

9.  Kaufman  v.  Cade,  107  La.  144.  Prop- 
erty    was     surrendered    by    defendants    and 


damages     claimed     were     less     than     $2000 — 
Howat  V.  Howat   (La.)   33  So.   106. 

10.  New  Orleans  v.  Fredericks,  107  La. 
496. 

11.  And  cannot  be  added  to  disputed 
items  to  give  jurisdiction. — In  re  Burke's 
Estate,    169   Mo.    212;    Green  v.   Hussey,    Id. 

12.  A  counter-proceeding  in  error  was 
brought  by  the  plaintiff  to  review  the  de- 
cision of  the  county  court  on  appeal  from 
a  justice — Benchoff  v.  Stephenson  (Tex.  Civ. 
App.)    72  S.   W.   106. 

13.  Pub.  St.  c.  150.  §  5 — Gilman  v.  Amer- 
ican Producers'  Controlling  Co.,  ISO  Mass. 
319. 

14.  $1000  and  $950,  recovery  of  $994 — 
Foster  V.    McKeown,    192   111.    339. 

15.  Recovery  of  taxes  paid — Common- 
wealth V.  Scott,  23  Ky.  Law  Rep.  1488,  55 
L.  R.  A.  597. 

16.  Skinner  v.  Board  of  Com'rs.  63  Kan. 
557,  66  Pac.  635.  Two  suits  on  bail  bonds 
for  $2500  each,  if  consolidated  in  one  action, 
involve   $5000 — State   v.   Eraser,   165   Mo.   242. 

17.  Perkins    v.    Lapeyronnte,    107    La.    502. 

18.  In  an  action  for  trespassing  on  a  par- 
ticular tract,  if  the  several  defendants  do 
not  plead  a  common  title,  and  separate 
judgments  are  asked  and  awarded,  the 
amount  Is  determined  by  that  which  is 
asked  against  each — Southern  Timber  & 
Land   Co.    v.   Wartell    (La.)    33    So.    559. 

19.  Mechanics'  liens — Davis  v.  Upham,  191 
111.    372. 

20.  Beneficiaries  under  a  trust  cannot 
lump  their  shares  held  in  trust  so  as  to  ap- 
peal   to    supreme    Instead    of    superior    court 


110 


APPEAL   AND   REVIEW. 


If  there  be  several  conflicting  claims  or  liens,  the  amount  of  each,  and  not 
the  aggregate  amount,  is  decisive.-^  If  a  successful  party  appeals,  the  difference 
between  the  demand  and  the  recovery  is  the  amount;-^  and  when  a  judgment  dis- 
poses of  a  part  only  of  the  sum,  reserving  the  balance,  that  sum  only  is  in  con- 
troversy.^^ On  appeal  by  the  garnishee,  the  judgment  against  him,  and  not  the 
demand,  fixes  the  right.^* 

12.  Review  of  intermediate  appeals  often  depends  on  one  or  more  juris- 
dictional facts  or  conditions.^^  Neither  of  such  grounds  can  exist  when  the  de- 
cision is  made  without  opinion.-^  In  Ohio,  the  supreme  court  could  not  under 
Act  May  12,  1902,  review  a  judgment  in  error  rendered  by  a  lower  court  except  as 
provided  by  statute  ;^^  but  the  act  which  repealed  it  did  not  give  jurisdiction  to 
review  judgments  which,  being  rendered  while  the  earlier  act  was  in  force,  were 
not  at  the  time  reviewable.^*  Statutes  taking  away  the  right  of  appeal  of  a  class 
of  cases  to  the  appellate  court,  and  making  them  direct  to  the  supreme,  disentitle 
one  to  appeal  such  a  case  to  the  appellate  court  and  thence  to  the  supreme.^^ 

In  Indiana,  only  money  judgments  of  the  specified  amount,  and  not  those 
for  title  or  possession  of  realty,  are  appealable  from  the  appellate  to  the  supreme 
court.^°  The  whole  amount,  and  not  only  that  affected  by  the  error  assigned  on  an 
intermediate  appeal,  takes  the  case  up.^^  The  amount  claimed,  not  that  recov- 
ered, determines  whether  the  cause  was  within  a  justice's  jurisdiction  ;^2  but  al- 
legations as  to  amount  control  the  prayer  for  damages.^^  Certiorari  will  not  lie  to 
an  intermediate  court  as  having,  without  authority,  decided  federal  questions,  where 
the  only  question  was  a  forwarder's  baseless  claim  to  subrogation  to  the  government 
lien  for  customs  duties  which  he  had  paid.'* 

No  "new  question  of  law"  or  "contravention  of"  a  higher  court's  decision 
exists  when  the  intermediate  court  misrepresents  or  misstates  the  facts.^^  The 
Texas  statute  allowing  an  appeal  if  the  civil  appeals  overrules  its  own  decision 


(P.   L.    24S) — In   re  Samson's   Estate,   201    Pa. 
590. 

21.  Suits  by  garnishing  plaintiffs  were 
consolidated  —  Hutmaciier  v.  Anheuser- 
Busch  Brew'g  Ass'n,  198  111.  613.  M.  Pugh 
Co.  V.  Vl'aliace,  198  111.  422,  holding  that  a 
subcontractor  below  the  limit  cannot  appeal 
merely  because  the  contractor  whose  claim 
is  above  the  limit   has  appealed. 

22.  People's  B.  &  L.  Ass'n  v.  Zimmerman, 
65   Ohio  St.    176. 

23.  Judgment  gave  $50  (less  than  ap- 
pealable sum)  to  appellant  and  made  no  dis- 
]iosition  of  remaining  proceeds — Newton  v. 
Porter,  23  Ky.  Law  Rep.  1388. 

2-3.  Schreiner  v.  Emel,  26  Wash.  555,  67 
Pac.   228. 

25.  Gen.  St.  Kan.  1901,  §  5019.  The  rec- 
ord must  show  $100  in  controversy  or  title 
to  land  involved — Grant  v.  Robb,  64  Kan. 
SSG,  67  Pac.  852.  Statute  m.aking  appellate 
court  findings  of  fact  binding  on  supreme 
court,  held  constitutional — Earnshaw  v. 
Western  Stone  Co.,  200  111.  220.  Applica- 
tions of  such  statutes  to  the  cases  are  shown 
in  the  former  part  of  this  section. 

26.  Craig  v.   Bennett,  158  Ind.   9. 

27.  Act  May  12,  1902.  Injunction  com- 
menced in  common  pleas  and  taken  to  cir- 
cuit— Slingluff  V.  Weaver,    66   Ohio  St.    621. 

28.  Act  Oct.  22,  1902,  repealing  Act  May 
12,  1902 — Gompf  v.  Wolfinger  (Ohio)  65  N. 
E.  878. 

29.  Freehold   cases     (Act   June    7,    1877,    p. 


69,  §§  88,  90,  as  amended) — Perry  v.  Bozarth, 
198  111.  828. 

SO.  In  granting  the  right  to  appeal  re- 
ferring only  to  money  judgments  (Acts  1901, 
p.  565,  §  10) — Smith  v.  American  Monument 
Co.   (Ind.)    65  N.  E.  524. 

31.  Towne   V.    Towne,    191    Iljl.    478. 

32.  Dugdale  v.  Doney,  28  Ind.  App.  283; 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Cunnigan,  95  Tex. 
439.  Action  to  recover  $160  on  a  guaranty 
is  within  the  jurisdiction  of  a  justice  (Burns' 
Rev.  St.  1901,  §  1500) — Crew  v.  Sager  (Ind. 
App.)  65  N.  E.  934.  In  Texas  an  action  i*»i- 
volving  less  than  $100  and  originating  in  a 
justice  court,  ordinarily  being  a  cause  for 
the  county  court  on  appeal,  is  not  brought 
within  the  clause  making  all  district  court 
judgments  appealable,  merely  because  in 
Roberts  county  the  district  court  exercises 
county  court  juri.^diction  (Sayles'  Rev.  St. 
art.  996;  Acts  22d  Leg.  1891,  p.  12) — Southern 
Kan.  R.  Co.  v.  Cooper  (Tex.  Civ.  App.)  72  S. 
W.  409.  An  action  in  the  circuit  court  for 
judgment  for  $100  and  costs  is  within  the 
jurisdiction  of  a  justice — Taylor  v.  Geiger 
(Ind.   App.)    65   N.   E.   192. 

33.  Allegations  and  bill  of  particulars 
for  $174  held  within  justice's  jurisdiction 
though  prayer  was  for  ^200  and  interest  ac- 
crued— Seward  v.  Steeley  (Ind.  App.)  65  N 
E.   216. 

34.  State  V.  Bland,   168   Mo.  1. 

35.  Burns'  Rev.  St.  1901,  §  1337j — Barnett 
v.  Bryce  Furnace  Co.,  157  Ind.  572. 


ADJUDICATIONS    REVIEWABLE. 


Ill 


or  that  of  another  court  of  "civil  appeals"  does  not  include  overruling  a  decision 
of  the  former  court  of  appeals.^^ 

For  lack  of  finalit}^  rules  nisi^^  or  rulings  on  motions  for  a  decision,-''^  dis- 
missals of  appeals  for  lack  of  jurisdiction/^  or  remands  for  further  proceedings/" 
are  not  reviewable. 

A  mandate  to  decree  in  accordance  with  the  prayer  of  the  bill  is  reviewable 
by  error  as  leaving  nothing  further  for  the  trial  court  to  do.*^ 

If  parties  seek  a  review  in  the  circuit  court  of  appeals,  its  final  jurisdiction 
will  conclude  them  on  constitutional  questions  which  might  have  taken  the  case  di- 
rect to  the  supreme  court;*-  nor  can  its  judgment  be  reviewed  because  a  federal 
question  incidentally  arose  which  was  not  of  a  character  to  make  the  matter  ap- 
pealable directly  to  the  supreme  court. *^  The  refusal  of  the  circuit  court  to  settle 
a  receiver's  accounts,  and  to  charge  certain  costs  against  complainant,  involves  no 
question  of  jurisdiction  which  will  take  the  case  to  the  supreme  court,  though  it 
was  done  on  the  ground  that  the  court  lacked  authority  to  charge  such  costs  to 
the  complainant.** 

13.  Federal  review  of  state  or  territorial  decisions  will  lie  if  there  is  a  fed- 
eral question.*^  The  federal  question  must  have  been  raised  in  the  state  court,*" 
and  decided  against  the  validity  of  an  act  of  congress,  to  be  thus  reviewable ;"  but  it 
is  of  no  moment  that  the  state  court,  in  addition  to  a  federal  question,  inadvertently 
and  needlessly  decide  a  question  not  federal,*^  or  that  the  state  court  decide  that  no 
federal  question  existed;*®  but  jurisdiction  is  not  ousted  by  the  correctness  of  the 
state  court's  decision.^"  Writs  of  error  will  issue  from  the  supreme  court  in  all 
cases  where  constitutionality  of  the  state  law  is  decided  against  either  party.^^  The 
question  of  repugnancy  of  a  state  law  is  not  presented  when  the  state  appellate  court 
merely  declines  to  pass  upon  it;^'-^  and  none  is  presented  by  assailing  a  law  for  in- 
vading the  power  of  congress  if  it  has  been  construed  as  intended  to  apply  only 
to  matters  of  state  control. ^^  Ordinarily  it  must  not  be  withheld  until  after  decision 
on  appeal  or  error,^*  unless  it  could  not  have  been  tried  sooner  ;^^  but  it  may  be 


36.  Gossett  v.  Citizens'  R.  Co.  (Tex.)  69 
S.  AV.  976.  Opinions  held  not  conflicting  on 
the  law  of  neg-ligence  per  se  by  a  railway 
company  which  violates  an  ordinance — Gos- 
sett V.  Citizens'  R.  Co.   (Tex.)   69  S.  W.  976. 

37.  To  strike  off  from  the  common  pleas 
docket  an  appeal  from  county  officers  is  in- 
terlocutory— Huntington  County  v.  Mason,  21 
Pa.  Super.  Ct.  148. 

.38.  Refusal  to  affirm  probate  court's  set- 
tlement of  executor's  accounts — McGinty  v. 
Kelley.  85  Minn.  117. 

39.  Dismissal  of  appeal  from  justice  of  the 
peace  for  lack  of  jurisdiction — Valley  Turn- 
pike Co.  V.  Moore   (Va.)    42  S.  E.   675. 

40.  Order  of  remand  for  further  proceed- 
ings "in  accordance  with  *  »  •  opinion" 
not  final — Friedman  v.  Lesher,  198  111.  21.  A 
remand  in  eminent  domain  proceedings  to 
take  proceedings  and  Impanel  a  jury  as  or- 
dered by  statute  or  to  vacate  a  part  of  the 
order  and  for  further  proceedings  is  not  final 
so  as  to  go  to  the  U.  S.  supreme  court — 
Macfarland  v.  Brown,  187  U.  S.  239. 

41.  Curran  v.   Houston,    201   111.   442. 

42.  Cary  Mfg.  Co.  v.  Acme  Clasp  Co.,  187 
U.  S.   427. 

43.  Ayres  v.  Polsdorfer,  187  U.  S.  585. 

44.  Chapman  v.  Atlantic  Trust  Co.  (C.  C. 
A.)    119   Fed.   257. 

45.  If  the  question  is  a  settled  one  review 


will  be  denied — Equitable  Life  Soc.  v.  Brown, 
187  U.  S.   308. 

46.  Home  for  Incurables  v.  New  York.  187 
LJ.  S.  155.  Invalidity  of  state  law  was  a  de- 
fense— Manley  v.   Park,   187  U.  S.   547. 

47.  Act  making  silver  dollar  legal  tender, 
sustained — Baker  v.  Baldwin,  1S7  U.  S.  61. 

48.  Balk  V.  Harris   (N.  C.)    43   S.  E.   477. 

49.  Missouri,  K.  &  T.  R.  Co.  v.  Elliott,  184 
U.  S.  530.  46  Law.  Ed.  673. 

50.  Andrews  v.  Andrews,  188  U.  S.  14. 

51.  Unconstitutionality  w^as  urged  as  a 
defense  by  plaintiff  in  error — Connolly  v. 
Union  Sewer  Pipe  Co.,  184  U.  S.  540,  46  Law. 
Ed.   679. 

."JZ.  Because  not  raised  at  trial  does  not 
present — Layton  v.  Missouri,  187  U.  S,  356; 
Erie  R.  Co.  v.  Purdy,  185  U.  S.  148,  4G  Law. 
Ed.   847. 

53.  Act  regulating  the  domestic  transpor- 
tation— Erie  R.  Co.  v.  Purdy,  185  U.  S.  148, 
46  Law.  Ed.  847. 

54.  Too  late  on  an  application  for  rehear- 
ing In  the  highest  state  court — Weber  x. 
Rogan,  188  U.  S.  10.  Too  late  on  petition  for 
writ  of  error  after  sfate  court  had  passed 
on  the  case  on  other  than  the  constitutional 
question — Telluride  Power  Co.  v.  Rio  Grande 
M^'estern  R.  Co.,  187  U.  S.  569.  Too  late  when 
first  made  in  a  petition  in  error  to  the  su- 
preme court — Johnson  v.  New  York  L.  I.  Co., 
187  U.  S.  491. 


112 


APPEAL   AND    REVIEW. 


made  on  a  motion  to  set  aside  judgment."  It  may  have  been  raised  in  a  state 
court  other  than  the  one  to  which  the  writ  is  directed."  Objection  raised  below 
must  specify  whether  the  state  or  the  federal  constitution  is  offended,  else  it  will 
be  deemed  that  the  former  is  invoked.*^ 

Illustrative  cases  showing  federal  questions  are  collected  in  the  footnotes.** 
If  the  state  court  necessarily  passed  on  the  question  what  rights  were  vested  under 
a  federal  decree,  a  federal  question  is  involved ;  but  there  must  be  more  than  a  mere 
question  of  practice  as  to  whether  any  grounds  for  relief  are  stated.^"  One  is  in- 
volved where  the  state  court  bases  its  judgment  on  infractions  of  numerous  statutes 
collectively,  some  of  which  are  alleged  to  be  repugnant  to  the  federal  constitution." 
A  federal* right,  and  not  its  mere  existence  in  the  case  at  bar,  must  be  attacked.^- 
Thus,  the  validity  of  a  federal  grant  or  reservation  of  land  must  be  questioned.*'^ 
A  contention  that  United  States  surveys  and  patents  wiU  be  changed  in  legal 
effect  bv  the  admission  of  certain  evidence  is  federal."  State  rights  of  sovereignty 
over  beds  of  meandered  waters  within  the  state  depend  on  no  federal  question,  but 
on  the  common  law;"  and  the  making  of  government  surveys,  meandering  waters. 
and  the  approval  of  such  surveys  by  government  ofl&cers,  is  not  an  adjudication 
of  submerged  lands  to  the  state,  so  that  a  question  of  state  title  thereto  can  present 
a  federal  question.®^  A  claim  of  title  in  ejectment,  under  a  Spanish  confirmation 
bv  treatv  and  patent,  raises  a  federal  question.®"  Defenses  not  federal  in  an  action 
of  ejectment  are  estoppel,  licenses,  payment  of  taxes,  invalidity  of  a  statute  because 
not  described  in  its  title,  want  of  power  to  grant  public  property,  and  limitations.^^ 
A  municipal  ordinance  passed  pursuant  to  law  is  a  law  of  the  state,  and  conflict 
between  it  and  the  federal  constitution  gives  jurisdiction  to  the  supreme  court.®^ 
Repealability  of  a  tax  exemption,  but  not  the  question  whether  it  was  repealed,  is  a 
federal  question.""     Xo  contract  is  impaired  by  a  change  ia  the  decisions  of  a  state 


55.  On  rehearing — Missouri.  K.  &  T.  R.  Co., 
V.  EUiott,  1S4  U.  S.  530,  46  Law.  Ed.  673. 

5«.     Manley  v.  Park.  187  U.  S.  547. 

57.  Error  to  lower  court  after  question 
had  been  tried  and  remanded  by  state  su- 
preme court — Rothschild  v.  Knight,  184  U. 
S.  334,  46  Law.  Ed.  573. 

5S.     Layton  v.  Missouri.  187  U.  S.  356. 

59.  Arresting  a  judgment  on  the  ground 
that  it  enforced  an  unconstitutional  statute, 
shows  a  federal  question — St.  Louis  Consol. 
Coal  Co.  V.  Illinois,  185  U.  S.  203,  46  Law. 
Ed.  872.  Denial  of  right  of  action  to  recover 
usurious  interest  expressly  founded  on  Act 
of  congress,  shows  a  federal  question — Tal- 
bot V.  First  Nat.  Bank,  185  U.  S.  172,  46  Law. 
Ed.  857.  The  question  of  what  damages  are 
recoverable  on  an  injunction  bond  given  in 
federal  courts  is  federal.  It  is  a  liability  de- 
pending on  authority  exercised  in  the  U.  S. — 
Tullock  V.  Mulvane,  184  U.  S.  497,  46  Law. 
Ed.  657.  The  objection  is  untenable  that 
obligation  of  contract,  due  process  of  law 
or  equal  protection  ■was  denied  by  a  quo 
warranto  in  which  a  charter  was  forfeited 
after  a  full  hearing  by  all  the  parties  in 
court,  when  the  charter  itself  prescribed 
mandamus  as  the  remedy;  neither  does  it 
matter  that  the  attorney  general  was  in- 
structed by  statute  to  take  such  action  as 
was  proper — New  Orleans  "Waterworks  Co.  v. 
Louisiana.  185  U.  S.  336,  46  Law.  Ed.  936. 
The  question  of  proper  or  necessary  parties 
in  an  action  to  forfeit  a  charter  is  not  fed- 
eral— New  Orleans  Waterworks  Co.  v.  Louisi- 
ana. 185  U.  S.  336,  46  Law.  Ed.  936.  It  is  not 
a  federal   contention  that  a   "judgment"   im- 


pairs a  contract — New  Orleans  Waterworks 
Co.  V.  Louisiana,  185  U.  S.  336,  46  Law.  Ed. 
936.  State  decision  that  executing  a  power 
brings  a  grantee  under  the  taxable  transfer 
act  though  po\irer  was  given  by  will  before 
act  was  passed — Orr  v.  Gilman,  183  U.  S.  278. 
46  Law.  Ed.  196. 

60.  National  Foundry  &  Pipe  Works  v. 
Oconto  City  Water  Supply  Co.,  183  U.  S.  216. 
46  Law.  Ed.  157. 

61.  Capital  City  Dairy  Co.  v.  Ohio,  183  U. 
S.   238,  46  Law.  Ed.  171. 

62.  Findings  of  fact  or  conclusions  of  local 
la'w  on  "which  a  federal  right  is  predicated 
are  not  federal — Telluride  Power  Co.  v.  Rio 
Grande  Western  R.  Co.,  187  U.  S.  569. 

63.  Not  sufficient  to  allege  that  the  de- 
scription in  a  patent  failed  to  cover  the  tract 
intended — Sweringen  v.  St.  Louis.  185  U.  S. 
38.  46  Law.  Ed.  795.  Decision  that  Indian 
Reservation  is  public  lands  within  a  fed- 
eral act  (Act  April  19,  1864.  §  12)  does  not 
question  the  validity  of  such  act — Kennard 
V.  Nebraska.  1S6  U.  S.  304,   46  Law.  Ed.  1175. 

64.  Riparian  rights  under  swamp  land 
grants — French-Glenn  L  S.  Co.  v.  Springer, 
185  U.  S.  47,  46  Law.  Ed.  800. 

Iowa  V.  Rood.  1S7  U.  S.  87. 
Iowa  V.  Rood.   1S7  U. 
Mobile  Transp.  Co. 


S.   87. 

Mobile,  187  U.  S. 


Mobile  Transp.  Co.  v.  Mobile,  187  U.  S. 


65. 
66. 
67. 

479. 
68. 

479. 

69.  Owensboro  v.  Owensboro  W^ater  Works 
Co.   (C.  C.  A.)  115  Fed.  318. 

70.  Allegation    that    an    exemption     from 
taxation  became  part  of  a  contract  betvreen 


COURTS  OF  REVIEW   AND  JURISDICTION. 


113 


a8  to  ownership  in  tide  lands.'^^  It  is  not  a  denial  of  full  faith  and  credit  to  hold 
a  foreign  law  inapplicableJ- 

If  a  federal  question  existed,  error  will  lie  to  the  circuit  court  of  appeals,  though 
the  case  could  not  go  directly  to  the  supreme  court;"  but  if  a  decree  of  a  circuit 
court  of  appeals  be  improperly  appealed,  it  is  not  aided  by  a  certiorari  to  perfect 
the  record.'^* 

Decrees  and  judgments  of  supreme  courts  of  the  territories  are  reviewable 
in  the  circuit  court  of  appeals  only  in  cases  enumeratedJ" 

Appeals  from  the  territorial  court  of  Hawaii  by  virtue  of  Act  April  30,  1900, 
§  86,  will  lie  when  appeals  would  lie  from  state  courts  to  United  States  courts ;  and 
the  fact  that  the  territory  has  been  assigned  to  a  judicial  circuit,  or  that  a  district 
court  with  powers  of  a  circuit  court  has  been  erected  in  Hawaii,  the  judgments  of 
which  are  appealable  to  the  United  States  courts,  does  not  extend  the  right  of  ap- 
peal from  the  territorial  courts^® 

D.  Dependent  on  the  parties. — A  mandamus  against  county  clerk  to  furnish 
duplicate  assessment  books  is  not  a  case  in  which  the  state  is  interested  as  a  party 
or   otherwiseJ^ 

The  state  is  a  party  when  the  suit  is  by  state  officers  and  in  relation  to  a  state 
canal.  In  Illinois,  if  the  state  is  interested,  an  appeal  still  lies  direct  to  the  su- 
preme court."*     The  supreme  court  of  Missouri  takes  the  case  if  a  county  is  party.'^' 

E.  Questions  certifiable. — A  law  for  the  certification  of  a  dissent  from  an  in- 
ferior court  does  not  apply  to  those  cases  wherein  the  inferior  court  is  the  last  re- 
sort.*" Questions  of  great  public  interest,  and  those  whereon  a  judge  is  in  doubt, 
only,  will  be  certified.*^ 

§  5.  Courts  of  review  and  their  jurisdiction. — In  the  preceding  section  the 
jurisdiction  of  courts  was  incidentally  involved.  When  the  reader's  inquiry  is 
simply  whether  a  case  belongs  to  a  class,  such  as  freehold  or  constitutional  cases, 
or  those  involving  a  stated  amount,  that  section  should  be  consulted.*-  A  consti- 
tutional grant  of  general  appellate  jurisdiction  "under  such  limitations"  as  the 
legislature  may  prescribe  does  not  enable  the  legislature  to  extend  or  restrict  the 
right  of  appeal,  but  only  to  limit  or  regulate  appellate  procedure  and  relief,*^  and 
should  not  be  construed  to  authorize  the  destruction  of  the  right  of  appeal.**  Un- 
der such  a  provision,  the  court  may  be  authorized  to  affirm,  reverse,  or  modify,  to 
continue  or  dissolve  injunctions,  and  the  orders  which  are  directly  appealable  may 
be  enumerated,  and  power  given  to  review  intermediate  orders  on  an  appeal  from 
the  final  judgment.*^     In  Ehode  Island,  the  constitution  does  not  vest  all  appel- 


the  state  and  a  corporation  and  was  violated 
by  a  subsequent  statute  shows  a  federal 
question — Gulf  &  S.  I.  R.  Co.  v.  Hewes,  183 
U.  S.  6G,  46  Law.  Ed.  86. 

71.  Mobile  Transp.  Co.  v.  Mobile,  187  U.  S. 
479. 

72.  Johnson  v.  New  York  Life  Ins.  Co., 
187  U.  S.  491. 

73.  Jurisdiction  in  part  resting  on  diver- 
sity of  citizenship — Howard  v.  United  States, 
184  U.  S.  676,  46  Law.  Ed.  754. 

74.  Huguley  Mfg.  Co.  v.  Galeton  Mills,  184 
U.  S.  290,   46  Law.  Ed.  546. 

75.  Alienage  or  diverse  citizenship  of  par- 
ties, patent  cases,  revenue  cases,  criminal 
cases,  admiralty  cases — Union  Cent.  L.  L  Co. 
V.   Champlin    (C.   C.   A.)    116   Fed.   858. 

76.  In  re  Wilder's  S.  S.  Co..  183  U.  S.  545, 
46  Law.  Ed.  321;  "Wilder's  S.  S.  Co.  v.  Low 
(C.  C.  A.)  112  Fed.  161;  Equitable  Life  Soc. 
V.  Brown,  187  U.  S.  308. 

Cur.  Law — 8. 


77.  People  V.  Hendee,  199  111.  55. 

78.  Practice  Act,  §  88,  not  repealed  by  Act 
1887  amending  Appellate  Court  Act — Canal 
Com'rs  V.  Sanitary  Dist.  of  Chicago,  191  111. 
326. 

79.  Corbin  v.  Adair  County  (Mo.)  71  S.  W. 
674. 

80.  Local  option  election  contest — Kidd  v. 
Ralney,  95  Tex.  556. 

81.  Habermann  v.  Heidrich  (Tex.  Civ. 
App.)  66  S.  W.  795.  Decision  admitting  evi- 
dence of  a  prior  accident  of  the  same  sort 
not  important  or  distinctive — Vandecar  v. 
Universal  Trust  Co.,  114  N.  Y.   783. 

82.  Ante,  §  4-C. 

83.  Const,  art.  8,  §§  2,  3 — Flnlen  v.  Heinze, 
27  Mont.  107,  69  Pac.  829. 

84.  Const,  art.  8,  §  3 — Finlen  v.  Heinze 
(Mont.)  70  Pac.  517. 

85.  Such  statutes  are  all  rules  of  proce- 


114 


APPEAL   AND   REVIEW. 


late  jurisdiction  in  tlie  supreme  court  as  one  body;  hence  the  creation  of  an  ap- 
pellate division  of  which  three  members  should  be  a  quorum,  was  valid.®®  If  a 
court  of  intermediate  appeals  be  created  for  a  time,  by  act  providing  that  the 
jurisdiction  of  the  supreme  court  shall  remain  except  as  changed,  on  the  extinc- 
tion of  the  court  of  appeals  the  jurisdiction  of  the  supreme  court  is  restored  without 
further  legislation.^' 

One,  at  least,  of  the  jurisdictional  grounds  prescribed,  must  exist  to  carry  the 
case  to  the  highest  court.®®  If  one  of  such  grounds  remain  in  dispute,  a  transfer  to 
such  court  is  imperative.®^  Conversely,  if  grounds  excluding  jurisdiction  exist, 
a  transfer  by  the  lower  court  will  not  confer  it.^°  A  constitutional  provision  for  ap- 
pellate courts  having  jurisdiction  of  such  appeals  as  the  legislature  may  provide,  and. 
giving  a  further  appeal  to  the  supreme  court  in  freehold  cases,  does  not  intend  that 
the  appellate  courts  shall  have  jurisdiction  of  franchise  cases  unless  the  legislature  so 
provides.**^     Footnotes  show  laws  of  the  several  states.^^ 

The  action  of  the  highest  court  in  transferring  a  case  to  the  intermediate  court 
is  conclusive  as  to  jurisdiction.^^ 

In  federal  courts  the  fact  that  treaty  questions  are  commingled  with  other  es- 
sential ones  does  not  authorize  the  circuit  court  of  appeals  to  pass  on  the  former.^^ 
Nor  can  it  hear  a  cause  wherein  the  sole  question  is  on  the  conflict  between  the 
federal  constitution  and  a  state  law,^^  though  the  decision  may  have  been  wholly 
on  other  grounds.^®  The  supreme  court's  jurisdiction  is  exclusive  where  the  record 
shows  a  controversy  on  constitutional  questions  on  which  alone  the  jurisdiction  of 
the  circuit  court  was  invoked.^^  If  the  constitutional  question  arose  incidentally, 
the  jurisdiction  of  the  circuit  court  of  appeals  is  not  ousted,^®  or  if  jurisdiction  was 
invoked  because  of  diversity  of  citizenship,  and  a  constitutional  question  subse- 
quently arose,  the  circuit  court  of  appeals  has  jurisdiction.^'     A  district  court  decree 


dure  and  do  not  affect  the  right  of  review — 
Finlen  v.  Heinze,  27  Mont.  107,  69  Pac.  829. 

SG.  Const,  art.  14.  §  3,  devises  the  jurisdic- 
tion "until  otherwise  prescribed"  by  law — 
Floyd  V.  Quinn  (R.  I.)  52  Atl.  880. 

87.  Act  Feb.  27,  1895 — Atchison,  T.  &  S.  F. 
R.  Co.  V.  Morris,  65  Kan.  532,  70  Pac.  651. 

88.  Eccles  V.  Missouri  Pac.  R.  Co.  (Mo.) 
68  S.  W.  1041. 

89.  McClure  v.  Feldman  (Mo.  App.)  67  S. 
W.  732.  The  transfer  will  be  made  if  it  ap- 
pears on  appeal  that  a  constitutional  ques- 
tion was  raised  during  the  trial — Watkins 
V.  Edgar,  94  Mo.  App.  285. 

90.  In  Colorado  if  the  supreme  court  was 
without  jurisdiction  of  an  appeal  direct  from 
the  countv  court  of  a  justice  case  it  could 
not  take  the  case  by  transfer  from  the  court 
of  appeals — Altman  v.  Huffman  (Colo.)  70 
Pac.  420. 

91.  Perry  v.  Bozarth,  198  111.  328. 

93.  In  Colorado  forcible  entry  cases  be- 
came reviewable  in  the  court  of  appeals  by 
conferring-  on  it  jurisdiction  like  the  su- 
preme court,  though  in  consequence  of  a  later 
amendment  at  the  same  term  the  forcible 
entry  statute  was  impliedly  restored,  so  as 
to  make  the  appeal  go  only  to  the  supreme 
court  (Laws  1891,  pp.  119.  228)— Schafer  v. 
Hegstrom  (Colo.  App.)  71  Pac.  396.  Validity 
of  a  statute  is  for  the  supreme  court  exclu- 
sively— People  v.  Church,  103  111.  App.  132. 
A  license  suit  involving  fact  only  held  ap- 
pealable on  the  ground  of  amount  involved 
to  the  court  of  appeal  and  not  to  the  supreme 
court — State    v.    Judges    of   Appeal    Ct.    (La.) 


33  So.  756.  In  Colorado,  a  civil  proceeding  in 
contempt  is  reviewable  in  the  supreme  court 
only  when  it  possesses  proper  jurisdictional 
elements — Naturita  C.  &  R.  Co.  v.  People 
(Colo.)  70  Pac.  691.  New  Jersey  surrogate's 
decision  on  probate  is  appealable  to  orphans' 
court — In  re  Cartwright's  Will  (N.  J.  Prerog. ) 
51  Atl.  713.  County  court  judgments  are  not 
reviewable  directly  in  supreme  court — King- 
man V.  Davis,  63  Neb.  578.  Allowance  of  a 
claim  against  an  estate  should  go  to  the  law 
and  not  to  the  probate  side  of  the  supreme 
court — Morgan  v.  McCausland,  96  Me.  449. 
Appeals  from  taxation  of  costs  after  re- 
mand should  go  to  that  court  which  heard 
the  appeal — State  v.  Judges  Ct.  of  Appeals, 
107  La.  69. 

93.  Bowlby  v.  Kline,  28  Ind.  App.  659;  State 
V.  Ohio  &  I.  M.  Land  Co.,  95  Mo.  App.  349. 
A  proceeding  to  establish  a  ■will  of  realty 
and  personalty — Ortt  v.  Leonhardt  (Mo.  App.) 
68   S.  W.  577. 

94.  It  may  either  affirm  or  reverse  dis- 
regarding such  question,  or  may  certify  it 
and  reserve  decision — United  States  v.  Lee 
Yen  Tai   (C.  C.  A.)    113  Fed.  465. 

95.  St.  Clair  County  v.  Interstate  S.  &  C 
Transfer  Co.   (C.  C.  A.)    110  Fed.   785. 

96.  Owensboro  v.  Owensboro  Waterworks 
Co.   (C.  C.  A.)   115  Fed.  318. 

97.  Seattle  v.  Thompson  (C.  C.  A.)  Hi 
Fed.  96. 

98.  A  statute  offered  as  evidence  was  ob- 
jected to  as  being  unconstitutional— Watkins 
V.  King   (C.  C.  A.)    118  Fed.   524. 

99.  Keyser  v.  Lowell  (C.  C.  A.)  117  Fed. 
400. 


BRINGING    UP   THE    CAUSE.  II5 

dismissing  suit  to  enforce  private  land  claim  is  not  directly  appealable.*  Prize 
causes  are  appealable  from  the  supreme  court  of  the  District  of  Columbia  direct 
to  the  supreme  court  of  the  United  States  when  the  former  is  sitting  as  a  district 
court. - 

Ancillary  powers. — Wlien  the  trial  court  has  authority  to  grant  injunctions 
pending  appeal,  application  for  one  will  not  be  heard,  even  though  the  trial  court 
should  refuse  to  examine  it  on  the  merits  f  but,  if  the  laws  authorize  the  reviewing 
court  to  issue  remedial  writs  necessary  to  complete  the  exercise  of  appellate  juris- 
diction, it  may  grant  an  injunction  to  preserve  the  statu  quo.*  Certiorari  will  issue 
from  the  court  of  last  resort  if  jurisdiction  be  wrongfully  assumed."  The  highest 
court  will  not  attempt  by  prohibition  to  supervise  the  improper  assumption  of  juris- 
diction by  a  court  below  after  it  has  completely  disposed  of  the  case  and  adjourned 
the  term.® 

§  6.  Bringing  up  the  cause.  A.  General  nature  and  mode  of  practice.'' — The 
reader  should  consult  section  2  of  this  article  on  the  question  of  what  remedy  to 
invoke, — whether  appeal,  error  or  other  mode.  The  present  section  deals  with  the 
practice  on  the  several  proceedings.  It  should  be  borne  in  mind  that  the  several 
terms,  "appeal,"  "error,"  and  the  like,  no  longer  are  capable,  in  a  general  dis- 
cussion, of  technical  strict  use,  but  signify  forms  of  appellate  procedure  analogous 
to  appeals  and  writs  of  error.  The  distinctions  of  the  various  remedies  should  be 
kept  in  mind. 

Appellate  practice  in  the  federal  courts  does  not  follow  or  conform  in  any  way 
to  state  practice,^  unless,  as  in  the  Indian  Territory,  the  practice  of  an  adjoining 
state  is  adopted  by  statute.^  The  practice  should  conform  to  that  of  the  court  which 
is  to  review,  though  the  trial  was  as  one  reviewable  to  a  lower  court.^"  Appeals 
from  probate  courts  frequently  follow  the  practice  of  appeals  from  justices  of  the 
peace."  If  the  trial  judge  exceeds  his  power,  and  sets  aside  a  judgment  and 
retries  the  case,  the  remedy  is  not  against  the  second  judgment,  but  the  first,  taking 
a  bill  of  exceptions,  and,  if  necessary,  compelling  the  trial  judge  to  sign  it.^^ 
Erroneous  appeals  or  proceedings  in  error  may  be  attacked  by  certiorari  from  a 
higher  court  if  promptly  brought.^^ 

B.  Time  for  instituting  and  perfecting. — Length  of  the  period  in  which  to 
appeal  is  a  matter  of  legislation,^*  inferior  and  probate  court  review  being  gener- 
ally specially  limited  in  time.^'*  The  time  is  sometimes  dependent  on  the  class  of 
errors  attacked,^®  or  the  kind  of  proceeding.^'^    Under  a  statute  requiring  a  speedy 


1.  Act  Cong-.  July  1,  1864,  §  3 — Gwin  v.  U. 
S.,   184  U.  S.   669,   46  Law.  Ed.   741. 

2.  The  act  making  judgments  of  the  su- 
preme court  of  the  District  of  Columbia  ap- 
pealable to  the  court  of  appeals  is  not  ap- 
plicable— United  States  v.  Sampson,  19  App. 
D.  C.   419. 

3.  It  should  be  renewed  before  the  trial 
court — Ajax  Min.  Co.  v.  Triumph  Min.  Co. 
(Colo.)    69  Pac.  523. 

4.  Finlen  v.  Heinze,  27  Mont.  107,  69  Pac. 
829. 

5.  Security  Trust  Co.  v.  Dent,  187  U.  S. 
237. 

6.  Klingelhoefer  v.  Smith  (Mo.)  71  S.  W. 
1008. 

r.  Mode  of  perfecting  election  contest  ap- 
peal in  Kentucky — Stewart  v.  Rose,  24  Ky. 
Law    Rep.  347,  68  S.  W.  465. 

8.  West  V.  East  Coast  Cedar  Co.  (C.  C.  A.) 
113  Fed.  737. 

9.  Missouri,  K.  &  T.  R.  Co.  v.  Truskett, 
186  U.   S.   480,  46  Law.  Ed.   1259. 


10.  Forcible  entry  from  municipal  court 
(Gen.  St.  1894,  c.  86) — Watier  v.  Buth,  87 
Minn.  205. 

11.  Barker  v.  Thompson,  98  111.  App.  78. 

12.  Akerman  v.  Ford  (Ga.)   42  S.  E.   777. 

13.  Refused  because  of  six  months'  delay 
after  the  record  in  error  was  filed  in  cir- 
cuit court  of  appeals  and  the  case  docketed 
— Ayres  v.   Polsdorfer,   187  U.   S.   585. 

14.  Perfected  within  six  months  (appoint- 
ment of  receiver) — First  Nat.  Bank  v.  Ash- 
ley (Neb.)   93  N.  W.   685. 

15.  Bond  on  appeal  from  county  court 
must  be  filed  within  thirty  days  and  tran- 
script within  forty  days  from  order  appealed 
(Comp.  Sts.  ch.  20.  §§  42.  46) — Jones  v.  Pig-- 
gott  (Neb.)  93  N.  W.  1000.  Since  Act  Feb.  28, 
1881,  county  court  appeals  in  probate  mat- 
ters must  be  taken  within  ten  days  (repeal- 
ing Comp.  St.  1901,  c.  23,  §  242) — Drexel  v. 
Rochester  L.  &  B.  Co.   (Neb.)   91  N.  W.  254. 

16.  Error  In  ruling  on  demurrer  is  not 
one   "occurring  at  trial"  from  which  a  year 


116 


APPEAL  AND   REVIEW. 


appeal  if  the  siifficiencj  of  the  evidence  to  support  the  jurisdiction  is  to  be  reviewed, 
no  inquiry  as  to  such  matter  can  be  made  upon  a  bill  of  exceptions  in  an  appeal 
taken  after  the  expiration  of  the  short  time.^*  Special  time  limitations  on  appeals 
from  interlocutory  and  provisional  orders  not  otherwise  appealable  must  be  strictly 
followed.^^  When  interlocutory  judgments  are  reviewable  only  at  the  trial  court's 
discretion,  a  general  statute  requiring  exceptions  to  be  filed  within  a  limited  time 
does  not  apply  to  interlocutory  orders  appealed  from;-"  nor  does  an  act  relating 
to  vacation  judgments  fix  the  time  for  taking  exceptions  to  an  interlocutory  judg- 
ment.-* Interlocutory  orders  cannot  be  appealed  after  the  time  fixed,  although 
they  are  subject  to  review  with  the  final  judgment.-^ 

The  taking  of  it  within  such  time  is  ordinarily  essential  to  a  transfer  of  juris- 
diction;-' whence  delay  may  work  a  cause  for  dismissal,-*  or  cure  errors  by  making 
the  judgment  conclusive.-^  If  several  orders  be  appealed,  only  those  taken  in 
time  will  be  considered.-® 

An  appeal  is  premature  if  brought  before  a  final  determination  is  had,  or  if 
the  judgment  be  incompleted^  It  is  not  final  when  incident  to  it  there  is  pending 
soine  necessary  proceeding  to  fix  rights.-®  An  appeal  may  be  brought  within  the 
statutory  time  after  final  judgment,  though  the  same  matters  might  have  been  re- 
viewed by  appealing  from  an  interlocutory  order.-^  It  must  be  final  as  to  all  co- 
parties.'"  If  a  judgment  be  amended,  the  period  is  computed  from  the  amend- 
ment :'*  and  ordinarily  the  time  does  not  begin  until  after  determination  of  motions 
for  new  trial.'-     Time  is  computed  from  the  date  of  record  entry  of  a  decree  in 


is  given— Mechanic's  Sav.  Bank  v.  Harding, 
65  Kan.   655,  70  Pac.  655. 

17.  Under  statutes  in  Idaho,  district  court 
judgments  on  appeal  from  county  commis- 
sioners not  revle^vable  upon  the  facts  un- 
less appealed  within  sixty  days — Mahoney 
V.  Board  of  Com'rs  (Idaho)  69  Pac.  108. 
Timely  filing  of  transcript  in  election  case 
is  jurisdictional — Krimm  v.  Helmbold,  24  Ky. 
Law    Rep.  551.  68  S.  W.  1103. 

IS.  Code  Civ.  Proc.  §  939,  prescribes  60  days 
— People  V.  Jones,  138  Cal.  xix,  70  Pac.  1063. 

19.  Appointment  of  receiver  not  final  and 
not  appealable  after  thirty  days — Coons  v. 
Frost.  100  111.  App.  303.  Neither  the  parties 
nor  the  court  can  extend  the  time  for  ap- 
peals from  appointment  of  receiver  for  cor- 
porations beyond  ten  days — Crichton  v.  Webb 
Press  Co.,  107  La.  86. 

20.  Goodsell  v.  Rutland-Canadian  R.  Co., 
74  Vt.  206. 

21.  Goodsell  V.  Rutland-Canadian  R.  Co., 
74  Vt.  206. 

23.  Receivership  orders  (Burns'  Rev.  Sts. 
1901.  §  1245) — Chicago  Horseshoe  Co.  v.  Gost- 
lln  (Ind.  App.)  66  N.  E.  514. 

23.  In  Alabama,  the  time  within  which 
appeal  from  the  overruling  of  a  demurrer 
must  be  taken — Blackburn  v.  Huber  Mfg. 
Co..  135  Ala.  598.  District  court  judgments 
on  appeal  not  taken  up  within  ninety  days — 
Warren  v.  Humble.  26  Mont.  495,  68  Pac.  SZl. 

24.  See  post.  §  11.  Dismissal  cannot  be 
averted  by  filing  new  bond  after  time — 
David  V.  Guich,  30  "Wash.  266.  70  Pac.  497. 
Notice  must  be  within  the  time — Southern 
Cal.  R.  Co.  V.  Slauson  (Cal.)  68  Pac.  107. 
Failure  to  substitute  party  in  time — Hays  v. 
Pugh,  158  Ind.  500.  Tardy  appeal  from  re- 
fusal to  revoke  probate — In  re  Reilly's  Es- 
tate. 26  Mont.  35S.  67  Pac.  1121. 

25.  See  post.  §  15.     If  judgment  not  sea- 


sonably appealed,  the  appeal  from  new  trial 
reviews  only  errors  presented  on  the  motion 
— Mechanic's  Bank  v.  Harding,  65  Kan.  655, 
70  Pac.  655. 

26.  Steenburg  v.  Richbourg  (Fla.)  33  So. 
521.  If  two  interlocutory  decrees  are  ap- 
pealed and  one  wns  entered  more  than  siii 
months  before  the  appeal  will  take  up  the 
later  one  only — Mattair  v.  Furchgott  (Fla.) 
32  So.  925;  Ray  v.  Frank  (Fla.)  Id.  It  is  suf- 
ficient if  one  of  two  orders  which  includes 
the  other  was  appealed  from  in  time — In  re 
Lamona's  Estate,  29  "Wash.  394,  69  Pac.  1093. 

27.  Sustaining  demurrer  not  appealable; 
must  be  judgment — Martin  v.  Sherwood,  74 
Conn.  202.  An  order  sustaining  demurrer, 
though  made  appealable  by  statute,  is  not 
final — Farmers'  &  Merchants'  Bank  v.  School 
Tp.  (Iowa)  92  N.  W.  676.  Report  of  referee 
stating  an  account  is  not — Shankle  v.  "U'hit- 
ley.  131  N.  C.  168.  42  S.  E.  574.  Sustaining 
demurrer  by  part  of  defendants  only — Rock 
Island  Implement  Co.  v.  Marr,  168  Mo.  252. 
As  to  when  adjudication  becomes  final,  see 
also  ante,  §  4-B. 

28.  Accounting — Trammell  v.  Ashv,'orth. 
99  Va.  646. 

29.  Demurrer  sustained  and  leave  to 
amend;  afterwards  leave  to  amend  stricken, 
and  judgment  of  dismissal  given  against 
plaintiff  sustained  on  demurrer — Farmers'  & 
Merchants'  Bank  v.  School  Tp.  ^lowa)  92  N. 
"W.   676. 

30.  Appeal  by  one  co-defendant — McVey 
V.  Barker,  92  Mo.  App.  408. 

31.  Hayes  v.  Silver  Creek  "Water  Co.,  136 
Cal.  238.  68  Pac.  704. 

33.  Especially  so  where  in  order  to  review 
certain  questions  motion  for  new  trial  must 
be  made  (R.  S.  1889.  §  2248) — "^'alter  v.  Sco- 
fleld.  167  Mo.  537,  as  in  a  law  action  review- 
able only  by  error,  where  the  motion  is  not 


BRINGING    UP   THE    CAUSE. 


117 


equity.33  Judgment  on  demurrer  to  an  additional  bill  should  be  appealed  from 
within  the  statutory  time  from  its  rendition,  if  it  be  in  its  nature  separate  from 
the  original  bill,  and  not  supplementary  to  it.^* 

Under  statutes  limiting  the  time  from  the  service  of  notice  of  entry  of  the 
judgment,  notice  must  be  served  by  the  prevailing  party/^  and  it  must  correctly 
describe  the  judgment  or  order.** 

If  the  last  day  of  the  time  "within"  which  proceedings  must  be  begun  be  a 
Sunday,  an  appeal  on  the  succeeding  day  will  be  timely.^^ 

"Fast"  or  accelerated  procedure. — No  judgment  in  mandamus  can  be  brought 
up  except  by  "fast"  bill.^^  A  writ  of  error  from  a  judgment  is  ordinary,  and  not 
"fast,"  though  a  writ  of  prohibition  has  been  previously  vacated  in  the  case.^^  In 
Georgia,  a  prayer  for  an  injunction,  not  acted  on,  affords  no  reason  for  allowing  a 
fast  writ  to  review  a  vacation  appointment  of  trustees.*"  Neither  does  it  lie  to 
bring  up  a  motion  to  dissolve  an  injunction.*^ 

Delays  and  extensions'"^ — Delay  attributable  to  neglect  of  officer  is  not  usually 
imputed  to  an  appellant;*^  but  in  Tennessee  failure  of  the  clerk  to  mark  the  oath 
as  filed  in  time  renders  it  a  nullity,  though  seasonably  made.** 

The  appellate  court  cannot  enlarge  the  statutory  time.*^  Eeinstating  a  cause 
after  its  determination,  and  the  instituting  of  proceedings  for  an  appeal,  extend  the 
time  for  filing  it;*®  but  an  abortive  attempt  to  appeal  does  not  extend  the  time 
for  suing  out  the  concurrent  remedy  by  error.*^  Stipulating  to  extend  the  time  for 
filing  briefs  is  not  a  waiver  in  writing  of  the  timely  giving  of  an  undertaking  for 
appeal.**  Defects  in  proceedings  cannot  ordinarily  be  amended  after  time.*^ 
When  the  opposite  party  is  dead,  and  his  representative  does  not  appear,  a  stay 
results  until  a  substitution  can  be  made;^"  but  if  not  perfected  before  the  death 
of  a  party,  proceedings  thereafter  cannot  be  had  and  filed  nunc  pro  tunc.^^ 

G.  Affidavits  and  oaths.^^ — Affidavit  of  interest  may  be  dispensed  with  if  all 
parties  admit  the  interest.^^  An  attorney  is  not  an  agent  who  may  file  an  affidavit 
stating  his  belief  that  the  appellant  is  aggrieved.^*     If  they  are  jurisdictional, 


ruled  on  until  after  judgment  is  rendered — 
City  of  Lincoln  v.  First  Nat.  Bank  (Neb.)  90 
N.  W.  874. 

33.  Hall  V.  Moore  (Neb.)   92  N.  W.  294. 

34.  Appeal  waived  by  delaying  judgment 
on  original  bill — Smith  v.  Pyrites  Min.  Co. 
(Va.)  43  S.  E.  564. 

35.  Service  by  an  appealing  co-party  in- 
sufficient— Prescott  V.  Brooks  (N.  D.)  90  N. 
W.   129. 

36.  Under  Code  Civ.  Proc.  §  1351,  copy 
varied  from  the  original  as  to  date  and  name 
of  clerk  and  did  not  with  certainty  refer  to 
the  entry — Gaday  v.  Doane  (N.  T.)  38  Misc. 
661.  Under  Code  Civ.  Proc.  §  1724,  an  ap- 
peal bond  must  be  filed  within  five  days  of 
serving  notice,  not  within  five  days  from 
filing  notice  with  the  clerk — Johnson  County 
Bank  v.  Joe  Klaffki  Co.,  26  Mont.  384,  68  Pac. 
410. 

37.  Writ  of  erfor  under  Rev.  St.  1899,  § 
837 — Jordan  v.  Chicago  &  A.  R.  Co.,  92  Mo. 
App.   84. 

38.  Holder  v.  Jelks   (Ga.)   42  S.  E.  400. 

39.  Bacon  v.  Jones  (Ga.)   42  S.  E.  401. 

40.  Loyd  V.  Webster  (Ga.)   42  S.  E.  1013. 

41.  Hanson  v.  Stephens  (Ga.)  42  S.  E.  1028. 

42.  Statutory  extensions.  Since  no  act  is 
to  be  done  by  the  party  served,  the  time  of 
filing  the  bond  is  not  extended  merely  be- 
cause the  service  of  notice  is  to  be  by  mall. 
Code    Civ.   Proc.    §    1833,    provides    for    exten- 


sions when  service  is  by  mail  only  when 
some  act  is  to  be  done  by  the  adverse  party 
— Johnson  County  Bank  v.  Joe  Klaffki  Co., 
26  Mont.  384,  68  Pac.  410. 

43.  Failure  to  serve  the  notice — Martin 
Mach.  Works  v.  Miller,  132  Ala.  629.  Failure 
to  settle  bill  of  exceptions — Crooks  v.  Crooks, 
136  Cal.  xix.,  68  Pac.  101. 

44.  Jones  V.  Ducktown  Sulphur  Co.  (Tenn.) 
71  S.  W.  821. 

45.  Hall  V.  City  of  N.  T.,  79  App.  Div.  102. 

46.  Until  pending  motions  for  reargu- 
ment  and  reinstatement  be  determined  (Gen. 
St.  1902.  §§  791,  793)— Sanford  v.  Bacon 
(Conn.)  54  Atl.  204. 

47.  Judgment  not  suspended  by  appeal — 
McCollum  V.  Ulen,  92  Mo.  App.  384. 

48.  Mitchell  V.  Board  of  Education,  137 
Cal.  372,  70  Pac.  180. 

49.  Defective  bond — Koutnik  v.  Koutnik, 
196  111.  162;  David  v.  Guich,  30  Wash.  266,  70 
Pac.  497. 

50.  Barton  v.  New  Haven,  74  Conn.  729. 

51.  Barton  v.  New  Haven,  74  Conn.  729. 
53.     Affidavit   of   good   faith   under    R.    S.    § 

808,  is  jurisdictional — Sehested  v.  Kansas 
City   (Mo.  App.)   68  S.  W.  1068. 

53.  Appeal  from  order  appointing  receiver 
. — Davies  v.  Monroe,  W.  &  L.  Co.,  107  La.  145. 

54.  Rev.  Sts.  1899,  §  808 — Schnabel  v. 
Thomas,  92  Mo.  App.  180. 


118 


APPEAL   AND   REVIEW. 


affidavits  must  be  seasonably  presented."  An  affidavit  for  appeal  should,  if 
necessary,  be  amended  before  decision  on  motion  to  dismiss  for  its  defectiveness;'' 
but  irregularity  in  amending  after  a  ruling  may  be  waived  by  going  to  trial.^' 

D.  Soiice,  citation,  summons. — Statutes  giving  right  to  appeal  imply  that 
notice  must  be  given,*®  unless  othenvise  provided.*^  "VThen  appeal  is  taken  in  open 
court,  citation  or  notice  is  not  usually  necessary.*"  In  Louisiana,  unless  -waived 
in  writing  by  appellant  or  his  counsel,  the  clerks  must  issue  citation,®^  and,  if 
the  appeal  be  taken  at  a  term  subsequent  to  judgment  term,  a  citation  is  neces- 
sarv.®-  The  clerkrs  failure  to  issue  a  citation  does  not  prejudice  the  proceeding 
unless  appellant  was  at  fault.®^ 

The  notice  or  summons  cannot  be  required  to  state  matters  which  the  statute 
does  not  require;^*  but  notice  of  appeal  must  be  explicit  and  particular.®*  The 
process  must  name  the  court  of  review.^®  As  against  plaintiff,  one  notice  is  suffi- 
cient, thoucrh  the  judgments  were  entered  separately  against  each  of  several  de- 
fendants;®' but  orders  in  special  proceedings  collateral  to  a  cause  cannot  be 
covered  bv  a  single  notice.®*  Eeferring  to  a  judgment  on  affirmance  as  for  a 
certain  amount  equal  to  the  costs  is  not  a  defect  if  the  notice  otherwise  shows 
that  the  appeal  is  not  limited  to  the  matter  of  costs.®^  A  misrecital  of  the  date 
is  not  material.'"  In  Washington,  a  notice  need  be  directed  only  to  the  prevailing 
party  or  parties.'^ 

All  persons  who  are  necessary  parties  respondent  must  be,  and  those  who 
are  proper  parties  may  be,  cited."  Service  on  a  firm  is  not  good  where  the 
members  were  held  as  individuals.''  Service  on  attorneys  usually  suffices,'*  and 
it  is  not  necessary  to  serve  each  one  of  associated  counsel.'*  Attorneys  representing 
two  parties  mav  accept  service  on  an  appeal  of  one  of  them  if  the  interests  do  not 
conflict."®  Xotice  of  appeal  should  be  served  on  the  substituted  personal  representa- 
tive when  an  appeal  is  taken  after  a  party  has  died.'' 


55.  In  Jones  v.  Ducktown  Sulphur  Co. 
(Tenn.)  71  S.  AV.  S21.  the  failure  to  make  a 
filing  as  in  time,  though  seasonably  made, 
defeated  the  appeal. 

56.  Moston  v.  Stow,  91  Mo.  App.  554. 

57.  Moston  v.  Stow.  91  Mo.  App.  554. 

58.  Shannon's  Code,  §  19S4.  condemnation 
proceedings — TVoolard  v.  Nashville.  lOS  Tenn. 
353. 

59.  In  Illinois  notice  to  executor  of  appeal 
from  disallowance  of  claim  is  not  necessary 
(Administration  Act.  §  68) — Ford  v.  First 
Xat.  Bank.  201  111.  120. 

60.  Not  necessary  if  taken  by  motion  in 
open  court  at  the  time  of  judgment — ^Vallee 
V.  Hunsberry,  lOS  La.  136. 

61.  Gagneaux  v.  Desonier  (La.)  33  So.  561. 

62.  Gagneaux  v.  Desonier  (La.)  33  So.  561. 

63.  Gagneaux  r.  Desonier  (La.)  33  So.  561. 

64.  Mauldin  v.  Greenville.  64  S.  C.  444.  A 
summons  in  error  need  not  contain  the  name 
of  the  attorney  of  record  on  -w-hom  It  is 
served  (Code  Civ.  Proc.  §  544) — Mechanics' 
Bank  v.  Harding.  65  Kan.  655.   70  Pac.   655. 

65.  Since  it  is  jurisdictional  in  its  ofiBce — 
State  V.  Hammond.  92  Mo.  App.  231. 

66.  Citation — Gagneaux  v.  Desonier  (La.) 
S3  So.   561. 

6T.  Clark  v.  Eltinge.  29  Wash.  215.  69  Pac. 
736. 

6S.  Order  allowing  fees  to  counsel  for 
person  accused  and  order  taxing  costs  to 
county  from  which  change  of  venue  was 
taken — Green  Lake  County  v.  Waupaca  Coun- 
ty,  113  TVis.    425.     A  notice  held   to   describe 


an  order  refusing  to  vacate  and  not  the  judg- 
ment itself,  which  therefore  was  not  brought 
up — N'orris  v.  C^ampbell,  27  Wash.  654,  68 
Pac.   339. 

69.  Engel-Heller  Co.  v.  Henry  Elias  Brew- 
ing Co.   (X.  T.)   37  Misc.  4 SO. 

70.  People  v.  County  Board  of  Canvassers 
(X.  Y.)   75  App.  Div.  110. 

71.  The  statute  requires  it  to  be  served 
on  all  parties,  but  permits  other  than  the  ap- 
pellant to  join  in  it  if  similarly  situated — 
Smalley  v.  Laugenour,  30  W^ash.  307,  70  Pac. 
786. 

72.  See  ante.  S  3-B.  Disclaiming  parties 
should  not  be — Smalley  v.  Laugenour,  30 
Wash.  307.  70  Pac.  786. 

73.  State  Xat.  Bank  v.  Dallas  (Tex.  Civ. 
App.)   6S  S.  W.  334. 

74.  Personal  service  on  attorney  suflScient 
for  a  stay  (Rev.  St.  1898.  §  2S20) — Harris  v. 
Snyder.  113  TVis.  451.  The  attorney  may  be 
cited  if  the  appellee  cannot  be  found  and 
has  no  domicile  and  delay  will  be  granted 
until  regular  service  can  be  made. — Levy  v. 
Levy,  107  La.   576. 

75.  Timely  service  on  one  only  of  re- 
spondent's attorneys  suffices — Burnes'  Estate 
V.  American  Brewing  Co.  (Mo.  App.)  70  S.  '^. 
512. 

76.  Smalley  v.  Laugenour.  30  Wash.  307. 
70  Pac.  7S6.  An  attorney  for  three  defend- 
ants cannot  acknowledge  service  on  behnlf  of 
one.  •where  the  other  two  appeal  adversely — 
Hayes  v.  Union  Merc.  Co.,  27  Mont.  254,  70 
Pac.   975. 


BRINGING    UP    THE    CAUSE. 


119 


Notice  must  be  served  within  the  time  for  taking  the  appeal/*  but  an  ex- 
tension is  sometimes  allowed/^  When  appeal  is  to  be  taken  within  a  time  "from" 
entry  of  judgment,  the  notice  must  be  given  after  entry.*"  Under  an  act  permitting 
an  omission  to  serve  either  the  clerk  or  the  adverse  parties  to  be  supplied,  parties 
cannot  be  afterwards  served  if  neither  they  nor  the  clerk  had  been  served,*^  but  a 
co-defendant  may  be  so  served.*^  Laches  defeating  relief  will  not  necessarily  defeat 
an  extension  of  time  for  service.*^ 

Filing  notice  is  a  jurisdictional  requisite  to  take  an  appeal  in  Oregon;** 
hence  cannot  be  allowed  out  of  time  as  an  omission  to  do  an  "act  necessary  to 
perfect"  it.*^ 

The  assignment  of  errors  should  be  filed  or  served  on  the  adverse  party  if  it 
is  taken  as  a  guide  to  making  up  the  transcript.^® 

Notice  of  application  for  writ  of  error  is  not  waived  by  serving  an  answering 
brief  after  the  time  for  giving  notice.*^  The  notice  of  application  should  specify  the 
time  when  it  will  be  made.** 

E.  Application  for  leave  to  appeal,  petition  in  error,  assignments,  and  state- 
ments of  appeal.^^ — Objections  that  an  appeal  is  frivolous  and  dilatory  must  be 
addressed  only  to  the  appellate  court;®"  nor  can  an  appeal  be  refused  because  the 
decree  is  entered  on  a  mandate  from  a  former  review.^^  If  the  lower  court  vacates 
an  order  on  the  ground  that  it  suspends  the  final  judgment  of  the  supreme  court, 
applicant  for  appeal  should  be  refused  and  sent  to  the  supreme  court  to  apply  for 
relief.*^^  If  an  appeal  be  predicated  solely  upon  leave  granted  in  Louisiana,  the 
propriety  of  granting  the  order  is  solely  for  the  court  to  which  application  is 
made.®^  If  writ  of  error  be  issued  by  the  clerk  below  on  filing  assignment  of  errors, 
and  the  supersedeas  bond  be  approved  by  the  circuit  court  of  appeals,  which  issues 
citation  that  is  duly  served,  the  mere  omission  to  formally  petition  for  the  writ, 
as  required  by  court  rules,  is  a  formal  defect.**  A  statute  requiring  leave  to  appeal 
in  mortgage  foreclosure  does  not  include  cases  where  the  character  of  the  instru- 
ment is  disputed.®^ 

Defendants  who  do  not  join  in  a  term-time  appeal  in  Indiana  need  not  be 
named.''®     Parties  should  be  properly  named.*^     The  use  of  "etc.,"  or  the  like. 


77.  Western  Union  Tel.  Co.  v.  Adams,  28 
Ind.  App.  420. 

78.  Bryan  v.  Bryan,  137  Cal.  xix.,  70  Pac. 
304, 

7!).  Citation  may  be  made  after  time  when 
everything  else  is  done  if  it  has  been  pre- 
vented by  inability  to  find  the  appellee — 
Levy  V.  Levy,   107  La.   576. 

SO.  Code  Civ.  Proc.  §  939 — Bell  v.  Staacke, 
137  Cal.  307,  70  Pac.  171. 

81.  Code  Civ.  Proc.  §  1303,  part  of  defend- 
ants only  were  served;  nunc  pro  tunc  serv- 
ice was  held  null  as  to  other  defendants — 
Hall  v.  New  York,   79  App.  Div.  102. 

82.  Notice  after  time  may  be  given  to  a  co- 
defendant  to  whom  the  judgment  was  to  be 
paid,  where  the  appealing  defendant  had  no- 
tified the  clerk  and  plaintiff  (Code  Civ.  Proc. 
§  1303) — Cooper  v.  Cooper  (N.  Y.)  76  App. 
Div.  221. 

83.  Spindler  v.  Gibson  (N.  Y.)  72  App. 
Div.  150. 

84.  Session  Laws  1901,  p.  78,  §  5,  provides, 
shall  be  taken  by  serving  and  "filing" — Tay- 
lor V.  Lapham,  41  Or.  479,   69  Pac.  439. 

85.  Taylor  v.  Lapham,  41  Or.  479,  69  Pac. 
439. 

86.  Florida  C.  &  P.  R.  Co.  v.  Peacock 
(Fla.)   33  So.  247.  I 


87.  Biles  v.  Beadle,  93  Mo.  App.  628 

88.  Burns'  Ann.  Pr.  Code  1901.  §  715  Biles 
V.  Beadle,  93  Mo.  App.  628. 

89.  Superior  court  cannot  allow  appeal 
from  commissioners  of  estate — Swain  v. 
Knapp,  71  N.  H.  620. 

90.  Southern  B.  &  L.  Ass'n  v.  Carey,  117 
Fed.   325. 

91.  Southern  B.  &  L.  Ass'n  v.  Carey,  117 
Fed.   325. 

93.  Appeal  from  order  setting  aside  In- 
junction against  judgment  of  supreme  court 
— New  Orleans  v.  Bilgery,   108  La.  191. 

93.  If  it  acts  illegally,  a  mandamus  will 
issue — State  v.  King  (La.)  33  So.  121. 

94.  Alaska  United  Min.  Co.  v.  Keating 
(C.  C.  A.)   116  Fed.  561. 

95.  V.  S.  §  981 — Herrick's  Adm'r  v.  Teach- 
out.  74  Vt.  196. 

96.  In  assignment  of  errors  (Burns'  Rev. 
St.  1901,  §  647a) — Gunn  v.  Haworth  (Ind.)  6< 
N.  E.  911. 

97.  "Gunn"  for  "Gwinn,"  and  the  use  of 
initials,  make  an  assignment  bad,  under 
Sup.  Ct.  Rule  6 — Gunn  v.  Haworth  (Ind.)  64 
N.  B.  911.  Failure  to  amend  name  which 
was  in  the  record  identical  with  that  be- 
low held  unimportant — Conyers  v.  Commis- 
sioners  (Ga.)   42  S.  E.  419. 


120 


APPEAL   AND   REVIEW. 


following  the. name  of  some  of  co-parties  in  a  statement  of  appeal,  brings  in  as 
appellees  only  those  named.»«  If  a  writ  joins  aU  the  defendants,  thev  are  brought 
before  the  court,  though  the  petition  in  error  did  not  join  them.®^ 

The  refusal  of  a  co-part)'  to  appeal  should  be  shown.^  On  appeal  from  an 
order  not  inter  partes  appellant  should  in  some  way  show  an  appealable  interest.- 

It  must  appear  that  the  cause  is  at  an  appealable  or  reviewable  stage.^  A  peti- 
tion does  not  describe  the  cause  and  the  judgment  sought  to  be  reviewed,  where 
it  refers  to  them  as  exhibits,  and  no  exhibits  are  filed.*  Appellant  must  show  that 
a  ground  of  jurisdiction  exists,  if  the  reviewability  depends  on  it,^  and  jurisdic- 
tional allegations  must  be  direct  and  special.®  An  application  for  writ  of  error 
founded  on  an  allegation  of  a  conflict  between  the  decision  and  a  decision  of  the 
liicjhest  court  must  show  that  the  questions  were  identical.^  It  must  either  appear 
that  the  requisite  amount  is  in  controversy,  or  that  the  case  is  within  the  exceptions 
to  the  requirement.^  Averments  of  the  existence  of  a  federal  question  must  be 
distinct  and  positive  beyond  question.^  Two  separate  applications  may  be  granted 
if  ore  of  them  discloses  error.^** 

A  petition  or  application  should  be  in  the  partVs  name.^^  It  is  not  fatally  de- 
fective because  in  the  name  of  plaintiff  in  error  by  attorney,  both  being  in  t}-pe- 
writing.^-    An  assignment  should  be  signed  by  the  party  or  his  attorney." 

Where  the  statute  regulating  petitions  in  error  was  amended  only  a  short 
time  before  the  filing  of  the  petition,  appellant  was  allowed  to  amend  his  petition 
to  conform  to  the  new  act.^* 

Where  the  transcript  is  to  be  made  up  according  to  the  assignments,  the  ad- 
versary should  be  apprised  by  service  or  by  filing.^' 

F.  Allocatur,  order  for  appeal,  certificate. — The  appellate  court  is  not  desig- 
nated by  a  recital  that  the  appeal  is  allowed  "as  prayed  for."^^  If  the  order  is  in- 
sufficient to  give  jurisdiction,  taking  up  the  record  accomplishes  nothing.^'  The 
order  of  a  circuit  court  in  Kentucky  granting  a  cross  appeal  is  of  no  force.^^     De- 


98.  Brodie  V.  Parsons,  23  Ky.  Law  Rep.  831. 
The  character  "&c."  in  a  statement  of  par- 
ties does  not  brinsr  any  others  than  those 
expressly  named — Chinn  v.  Curtis.  24  Ky. 
La-n-  Rep.  1563.  The  words  "et  al."  do  not 
describe  parties  not  expressly  named  in  the 
petition  in  error — Brabham  v.  Custer  Co. 
(Neb.)  92  N.  W.  989.  In  a  special  proceeding 
it  is  not  sufficient  to  say  that  the  appeal  is 
in  behalf  of  others  not  named — In  re  Park 
Ave.  Viaduct  Assessment,  112  N.  Y.  St.  Rep. 
1030. 

99.  An  attempt  on  the  part  of  the  trial 
court  to  amend  the  writ  by  striking  the 
names  of  some  of  the  defendants  from  it,  is 
null — Fitzpatrick  v.  Graham  (C.  C.  A.)  119 
Fed.  353. 

1.  Appeal  by  licensee  without  patentee — 
Excelsior  Co.  v.  Seattle  (C.  C.  A.)  117  Fed. 
140. 

2.  Probate  appeal — People  v.  McCormick, 
104  111.  App.  650. 

3.  A  bill  of  exceptions  should  show  that 
a  final  judgment  was  entered — Bell  v.  Stew- 
art  (Ga.)  4^3  S.  E.  70. 

4.  Board  of  Com'rs  v.  Shaffner  (Wyo.)  6S 
Pac.  14. 

5.  Valley  Turnpike  Co.  v.  Moore  (Va.)  42 
S.  E.  675. 

6.  State  V.  Pollock.  108  La.  594. 

7.  Admissibility  of  original  petition  under 
amended    petition    not    same    as    that    of    ad- 


missibility of  amended  petition  to  rebut 
original  petition — Watson  v.  First  Nat.  Bank 
(Tex.)   67  S.  W.  314. 

S.  Crouse  v.  Brown,  65  Kan.  858.  69  Pac. 
165;  Moore  v.   Richardson.   197  111.   437. 

9.  Michigan  Sugar  Co.  v.  Michigan,  185 
U.  S,  112.  46  Law.  Ed.   S29. 

10.  Rilling  V.  Schultze,  95  Tex.  352. 

11.  Application  for  writ  of  error  in  the 
name  of  a  corporation  -which  does  not  ap- 
pear as  party  is  not  sufficient  by  reason 
of  a  recital  without  proof  that  applicant  and 
the  plaintiff  belo-w  were  the  same  corpora- 
tion, all  other  pleadings  being  in  the  name 
of  the  original  party — State  Nat.  Bank  v. 
Dallas    (Tex.   Civ.  App.)    68   S.  "W.   334. 

12.  Moore  v.  Moran  (Neb.)   89  N.  VT.  629. 

13.  H.  B.  Smith  Co.  v.  Williams  (Ind.  App.) 
63  N.  E.  318. 

14.  Board  of  Com'rs  v.  Shaffner  (Wyo.) 
68  Pac.  14. 

15.  Presenting  assignments  to  the  judge 
at  the  settling  of  bill  of  exceptions  is  not 
alone  sufficient  in  Florida — Florida  Cent.  & 
P.  R.  Co.   V.  Peacock   (Fla.)    33  So.   247. 

le.  Sehested  v.  Kansas  City  (Mo.  App.)  68 
S.  W.  1068. 

17.  Sehested  v.  Kansas  City  (Mo.  App.)  68 
S.  W.  1068. 

18.  Hancock  v.  Hancock's  Adm'r,  24  Ky. 
Law  Rep.  664. 


BRINGING   UP    THE    CAUSE. 


121 


fects  may  be  waived  by  proceeding  with  the  case.^®  An  order  for  an  appeal 
may  be  vacated  at  any  time  before  it  is  perfected  in  the  higher  court.^° 

Federal  practice. — In  the  ninth  circuit,  an  allocatur  is  needless  if  the  clerk 
issues  the  writ  which  is  lodged  with  the  trial  clerk.^^  The  writ  should  issue  to  that 
state  court  wherein  the  case  is,^^  or  to  the  state  appellate  court  having  final  juris- 
diction.^^ Mistakes  in  the  teste  of  the  writ  as  to  date  and  omission  of  the  court 
seal  are  amendable.^*  Defendant  in  error,  by  opposing  a  motion  to  withdraw  a 
writ,  and  to  allow  filing  of  a  new  petition,  writ,  and  bond,  waives  the  objection  that 
the  writ  issued  and  was  filed  before  the  assignment  of  error.-^  The  trial  court 
cannot  amend  a  writ  of  error.^^ 

Certifications  and  reservations. — There  must  be  a  certificate  of  importance  to 
the  supreme  court  if  the  record  shows  no  other  ground. ^'^  The  certification  must 
state  sufficient  to  present  the  question.^^  The  certificate  of  the  circuit  court  of 
appeals  to  the  supreme  court  should  state  the  facts  on  which  the  questions  arise,  and 
not  send  up  the  whole  record.^®  Merely  allowing  exceptions  to  an  opinion,  and 
with  them  a  transcript,  does  not  reserve  the  case  for  the  decision  of  three  justices.^** 
An  order  allowing  appeal  may  be  such  as  to  certify  questions.^^ 

G.  Bonds,  security,  payment  of  costs;  necessity.^- — Security  is  necessary  on  error 
from  the  supreme  to  a  state  court.^^  Fiduciaries^*  and  public  representatives  are 
usually  exempted  from  giving  bond.^^  An  executor  is  a  trustee  who  may  appeal 
without  bond,^*^  but  he  must  have  given  an  executorial  bond,  and  must  give  the  statu- 
tory notice  in  time.^^  The  executor  of  an  executor  appealing  against  the  administra- 
tor d.  b.  n.  is  such  a  trustee  ;^^  but  an  executor  who  appeals  in  his  individual  right 
as  against  a  co-executor  does  not  come  within  the  statutes  allowing  appeal  without 
an  undertaking.^*    And  where  a  guardian  ad  litem  can  be  appointed  only  for  de- 


19.  Order  granting  appeal  to  appellants 
by  Arm  instead  of  individual  names  is  not 
defective  if  they  proceeded  under  It — Pugh  v. 
Wallace,  198  111.  422. 

20.  Appeal  to  circuit  court  on  flling  a  bond 
vacated  before  filing — Vallee  v.  Hunsberry, 
108  La.  136. 

21.  Alaska  United  Min.  Co.  v.  Keating  (C. 
C.  A.)  116  Fed.  561. 

22.  Superior  court  of  Massachusetts  after 
decision  and  re-script  from  supreme  court — 
Rothschild  v.  Knight,  184  U.  S.  334,  46  Law. 
Ed.   573. 

23.  Court  of  appeals  where  supreme  court 
had  disavowed  jurisdiction — Missouri,  K.  &  T. 
R.  Co.  V.  Elliott,  184  U.  S.  530,  46  Law.  Ed. 
673. 

24. — Alaska  United  Min.  Co.  v.  Keating  (C. 
C.  A.)   116  Fed.  561. 

25.  Alaska  United  Min.  Co.  v.  Muset  (C. 
C.  A.)  114  Fed.  66. 

26.  Fitzpatrick  v.  Graham  (C.  C.  A.)  119 
Fed.   353. 

27.  Pick  V.  Mutual  Life  Ins.  Co.,  192  111. 
157.  There  must  be  a  certificate  of  jurisdic- 
tional facts  if  the  sum  involved  is  otherwise 
too  small — Douglass  v.  FYazier,  64  Kan.  886. 
67  Pac.  1102. 

28.  Sufficiency  of  the  findings  only  will  be 
reviewed  when  the  judge's  report  omits  the 
evidence — Cleveland  v.  Hampden  Sav.  Bank. 
182  Mass.  110.  On  a  question  whether  refer- 
ence w^as  proper  it  was  not  shown  whether 
any  question  of  long  accounts  was  involved 
— Malone  v.  St.  Peter  &  P.  Church,  172  N.  T. 
269. 


29.  Emsheimer  v.  New  Orleans,  186  U.  S. 
33,  46  Law.  Ed.  1042. 

30.  First  Nat.  Bank  v.  Greene,  23  R.  I.  238. 

31.  Order  allowing  appeal  from  a  dis- 
missal "for  want  of  jurisdiction,"  sufficiently 
certifies  question  of  circuit  court's  jurisdic- 
tion— Excelsior  Wooden  Pipe  Co.  v.  Pac. 
Bridge  Co.,  185  U.  S.  282,  46  Law.  Ed.  910. 

32.  Code  March  16,  1895,  providing  that  a 
new  "appeal  bond"  may  be  ordered,  in  de- 
fault of  which  execution  may  issue,  means  a 
new  stay  bond,  and  the  failure  to  provide 
one  is  not  ground  for  dismissal — Mersfeldef 
V.  Spring,  136  Cal.  619,  69  Pac.  251. 

33.  Act.  Cong.  July  20,  1892,  does  not  au- 
thorize supreme  court  to  allow  a  writ  of 
error  to  a  state  court  without  security^ — 
Gallaway  v.  Ft.  Worth  Bank,  186  U.  S.  177, 
46  Law.  Ed.  1111. 

34.  Supersedeas  bond  is  unnecessary  when 
executor  appeals  from  order  annulling  a 
will,  since  estate  must  pay  costs  in  any  event 
— State  v.  Superior  Ct.,  28  Wash.  677,  69  Pac. 
375. 

35.  Head  of  an  executive  (Jepartment  of 
a  city — People  v.  Sturgis,  38  Misc.  (N.  Y.) 
596. 

36.  An  appeal  from  an  accounting — In  re 
Sidwell's  Estate  (Ohio)   66  N.  E.  521. 

37.  Rev.  St.  §  6408 — In  re  Sidwell's  Estate 
(Ohio)  66  N.  E.  521. 

38.  In  re  Sidwell's  Estate  (Ohio)  66  N.  E. 
521. 

39.  Rev.  St.  §§  6101,  6408 — Downing  v. 
Downing,  23  Ohio  Cir.  Ct.  389. 


122 


APPZAI-  AXD  REVIEW. 


not  Will  .-^.   s: 
:r  appeal  :y  " 


It, 


-A  statutoiT  direetioii 
^      :  ike  pajment  o: 
■TTcaled  from- 


eomt 
a  cans 
CLrem: 
tiie  St; 

tr 
k- 
ttr      : 


L    z^  1  new  tr: 
::--.  ver  sereral 
:  prorin^.** — ^The 
~^rll  as  the  amo- 
: :  I.  'itions  are  f: 
-    I- Oris."    Tt^ 


i^ee  where 
-  statute 


J  4* 


nd  by  the 
~  ::  allows 


-Z  eiceptioiis  to  snflBeieiicT  of  ;_: 
rax  upon  notice  and  ;:-::'-- 
do  bTismess  in  the  staif     ri.rf 


zo 


41. 


ss.  Tt  p»c  : 

SI  X.  \r.  254. 

47.  BeU  V.  Staaekew  13: 

48.  Downins  t.  P-3.;5=i3 
C9  Pac  413. 

■OL    Appeals   !-    ~- 
prooeed  speciallr 
plied    to    execntl :  ^ 
Gook   (Ky.)   S8  S.   W.    41 


' :-:t     V      i--e?.    f-:—    --    -  --'-n  conies^   z^e  super- 

"  ;  r  i  filed    tn    the    eircoit 

r:     ;ri    -  :  ?-::rt  of  appeal — ^Pat- 

f-5  -       ii    5    ..  ::      :.  —  Rep.  S42. 

:;:— ^Irrr    r.  -,.       :-.-,-r.   -'     ";_-=--.      :"rb.>   Jl  X.  "W.  3S«. 

;  r^      :  -:       ;       T         £    r-r     7    ::     .1   —ash.  599.  99 

~ '  .'.r  >I   :  -         ■,  :^     I    ;    .:      --rvides    that  upon  re- 

::irr;     ;    ;  ers    etc.  shall  be  sent 

^  -  .    r      :  1    =  T     ;      '/-     proc:eed    as    if 

:  — ?     ;:h  ▼.  Pyrites  M. 

--:     -.-    ---     i    :  -  -  : :?.     :-       4*  a  K.  918. 

53.  :::  --;>   '- --  ::l  i«2. 

38.  Co.  ^Xeb.>       54     ?        ~         .:    ;  ^:— ::  -  :-r '^- Hard- 

'     "      ?    :  -  -  .  !:92,    cs 

:":'   CaL  673,|      SS.     Rir"'?.ri;     2:.    >  7.;.        r.:      IS 

I  App.  D.  C.  :  :  t 

2P-  j  (C  a  A-'  115'  Fei  14-  _ 

—  -         -    -    V.J      SB.     Stajriirg  T.  E_rdeii£,  li     .■  i^:„   iil.   iS 
Xr-:u:5T,  tojpac  723. 


BRINGING  UP  THE  CAUSE. 


123 


on  the  bond.^'  A  bond  is  fatally  defective  which  is  signed  by  sureties  who,  inde- 
pendently of  it,  were  bound  by  the  judgment.^'' 

The  amount  of  the  bond  is  usually  regulated  by  statute  at  double  the  judgment 
if  it  be  in  money.^^  If  not  a  money  judgment,  then  in  an  amount  sufficient  to 
afford  protection.^^  If  the  judgment  be  for  a  partially  secured  debt,  the  bond 
should  cover  the  unsecured  part  only.^^  If  an  injunction  order  be  appealable, 
the  court  should,  on  request,  fix  the  amount  of  a  supersedeas  bond  to  stay  pro- 
ceedings pending  appeal.®*  In  Texas,  the  bond  must  show  that  the  amount  was 
properly  fixed.®^ 

Terms  and  conditions.^^ — The  bond  need  only  identify,  and  need  not  recite, 
the  judgment  in  detail.®^  On  appeal  from  probate  it  should,  in  the  absence  of 
statute,  run  to  the  estate.®*  An  undertaking  for  costs  on  appeal  from  an  order  to 
pay  legacies  without  the  additional  undertaking  to  stay  execution  leaves  the 
order  open  to  enforcement  by  any  means, — by  execution,  or  otherwise.®^  A  judgment 
may  be  enforced  by  the  appellee  pending  an  appeal  from  a  suit  to  set  aside  an 
assignment  of  the  judgment  if  the  bond  be  conditioned  only  to  pay  costs  and 
abide  the  result.'"'  An  execution  is  stayed,  though  it  be  improvidently  issued.'^^  An 
appeal  is  suspensive  in  Louisiana  if  the  money  is  in  possession  of  the  court  abiding 
judgment,  though  the  bond  be  for  costs  only.''^ 

Irregularities  and  defects. — A  bond  allowed  and  given  where  none  is  war- 
ranted is  a  nullity  for  all  purposes.''^  A  bond  is  not  objectionable  to  appellee  if  so 
worded  that  he  can  enforce  it  to  the  full  extent  of  the  law.'^*  A  mere  variance  in 
stating  the  term  in  a  bond  otherwise  particularly  describing  the  judgment  is 
surplusage."  If  the  identity  of  parties  appellant  is  otherwise  made  certain,  it  is 
immaterial  that  words  of  description  following  counsel's  signature  are  uncertain.'^® 
It  is  no  vice  that  it  runs  to  appellant's  sureties  for  costs,  as  well  as  to  the  re- 
spondent.^^ A  signing  by  an  obligee  does  not  affect  a  bond  which  is  sufiScient 
without  him.^*     The  bond  is  valid,  though  it  does  not  state  to  whom  it   shall 


59.  Dodge  v.  Corliss,  27  Wash.  685,  68  Pac. 
177. 

60.  They  add  nothing  to  the  security — 
David  V.  Guich,  30  Wash.  266,  70  Pac.  497. 

61.  An  appeal  and  supersedeas  bond  should 
be  double  the  judgment  and  two  hundred 
dollars  besides — Graham  v.  American  Surety 
Co.,  28  Wash.  735,  69  Pac.  365. 

62.  In  Washington  If  a  judgment  be  only 
In  part  for  the  recovery  of  money,  the  bond 
should  be  in  double  the  amount  of  the  judg- 
ment, also  such  further  sum  as  the  court 
shall  prescribe  sufficient  to  protect  the  re- 
spondent— Title  G.  &  T.  Co.  V.  McDonnell, 
28  Wash,  359,  68  Pac.  890.  The  bond,  in  order 
to  stay  receivership,  must  be  in  such  penalty 
as  to  save  appellee  harmless  and  two  hun- 
dred dollars  besides  (Ball.  Codes,  §  6506) — 
State  V.  Superior  Ct.,  30  Wash.  232,  70  Pac. 
484. 

63.  Reid  V.  Donovan  (Mich.)   93  N.  W.  914. 

64.  State  V.  Superior  Ct.,  30  Wash.  177,  70 
Pac.   256. 

65.  The  bond  must  be  In  the  statutory 
amount  and  must  show  that  the  amount  was 
fixed  by  the  clerk  as  prescribed — Crouch  v. 
Crouch   (Tex.  Civ.  App.)    68  S.   W.   515. 

66.  Names  of  partners  need  not  be  In 
bond  for  an  appeal  taken  by  firm  in  Louisi- 
ana— McSweeney  v.  Blank,  107  La.  292.  A 
supersedeas  bond  in  the  terms  of  a  statute 
should  be  construed  as  the  statute — Camp- 
bell  V.   Harrington,    93   Mo.    App.    315.      Con- 


ditions to  prosecute  and  to  pay  money  ad- 
judged are  separate  and  independent — Camp- 
bell V.  Harrington,  93  Mo.  App.  315.  Super- 
sedeas bond  of  foreclosure  decree  must  pro- 
vide for  use  and  occupation — Collins  v. 
Brown  (Neb.)  89  N.  W.  754.  Character  of 
bond  required  In  Washington  on  appeal 
from  procedure  to  enforce  tax  certificates — 
Meagher  v.  Hand,   28  Wash.   332.   68  Pac.   892. 

67.  Number  and  style  of  the  case,  date  of 
judgment  and  name  of  court  suffice — Frerie 
V.  Cloudt  (Tex.  Civ.  App.)  67  S.  Y7.  890. 

68.  Blackman  v.  Edsall  (Colo.  App.)  68 
Pac.  790. 

69.  In  re  Holmes'  Estate,  79  App.  Div. 
(N.  T.)    267. 

70.  Carson  v.  Jansen  (Neb.)   91  N.  W.  398. 

71.  Campbell  v.  Harrington,  93  Mo.  App. 
315. 

72.  Metropolitan  Bank  v.  Blaise  (La.)  33 
So.   95. 

73.  Appeal  Instead  of  error  in  mandamus 
— Jablne  v.  Gates,   115  Fed.   861. 

74.  McSweeney  v.  BTank,  107  La.  292. 

75.  White  v.  Borelng,  24  Ky.  Law  Rep. 
738. 

76.  They  signed  as  attorneys  for  "plain- 
tiff" when  there  were  several  represented 
by  them — Bendich  v.  Scobel,  107  La.   242. 

77.  White  Crest  Canning  Co.  v.  Sims,  29 
Wash.   3S9,  69  Pac.   1094. 

78.  White  Crest  Canning  Co.  v.  Sims,  29 
Wash.  389,  69  Pac.  1094. 


124 


APPEAL  AND  REVIEW, 


be  payable,* ^ or  runs  to  the  state,  instead  of  a  prescribed  officer.""  A  bond  other- 
wise joint  and  several  by  each  of  the  defendants  does  not  lose  that  character, 
though  it  refers  to  the  "appeal,"  and  the  notice  recites  that  each  "appeals."" 
In  Louisiana,  if  the  bond  be  in  an  amount  fixed,  though  insufficient  for  a  sus- 
pensive appeal,  it  may  serve  for  a  devolutive  one."  In  Texas,  a  bond  may  suffice  to 
transfer  jurisdiction  though  it  lack  a  penalty.®^ 

The  bond  may,  imJ&ss  wholly  null,  be  amended,"  but  defects  cannot  be  cured 
by  filing  a  new  bond  after  time.^^  If  timely  given,  a  bond  may  be  amended  by 
striking  out  an  improper  reference  to  another  order  than  that  appealed  from.^® 
A  failure  of  sureties  to  sign  a  justification  may  be  cured  by  the  clerk's  certifica- 
tion that  they  made  the  proper  oath,  in  the  absence  of  a  statute  requiring  their 
signature  to  it.*'  Correction  of  a  recital  in  the  bond  to  show  the  district  to 
which  an  appeal  was  actually  taken  is  a  proper  amendment.**  In  Montana,  the 
bond  mav  be  amended  by  substituting  several  undertakings  for  a  joint  one  before 
hearing  of  motion  to  dismiss;*®  and  in  Texas,  one  may  be  amended  by  adding  a 
penalty  which  was  lacking.®"  The  failure  of  one  appellant  to  sign  a  bond  is 
waived  by  appellees  who  proceed  to  go  into  the  merits  of  the  case.®^ 

H.  Entry  below. — There  must  be  an  entry  of  appeal  or  error  below,  and  an 
appearance  above,  under  Florida  practice.®^  The  appeal  should  be  made  returnable 
to  a  dav  certain,®^  and  entry  must  be  in  the  proper  book,®*  and  state  to  what  court 
and  term  the  cause  has  gone.®'  Failure  to  enter  an  appeal  is  immaterial  if  notice 
was  served  and  the  fact  of  taking  it  admitted.®® 

§  7.  Transfer  of  jurisdiction,  supersedeas  and  stay. — The  appeal  must  be 
perfected  to  transfer  jurisdiction.®''  An  allowance  of  appeal  which  is  null  does  not 
oust  it;®*  and  similarly,  an  appeal  erroneously  taken  in  a  law  action,®®  or  pro- 
ceedings prematurely  brought,  do  not  transfer  jurisdiction.^ 

Supersedeas  by  operation  of  appeal  or  error. — Generally  speaking,  the  trial 
court's  power  ceases  for  all  purposes  on  the  transfer  of  jurisdiction;-  hence  the 


79.  Downing  v.  Rademacher,  136  Cal.  673, 
69  Pac.   415. 

50.  A  bond  in  a  probate  proceeding  is  not 
void  because  it  runs  to  the  state  instead 
of  the  judge  of  probate  as  required  (Comp. 
St.  c.  23.  §  311) — In  re  Gannon's  Estate  (Neb.) 
S9  X.  TS'.  1028. 

51.  Hayes  v.  Union  Merc.  Co.,  27  Mont. 
264.   70  Pac.   975. 

52.  McSweeney  v.  Blank,  107  La.  292;  L. 
J.  Mestier  &  Co.  v.  Chevalier  Pavement  Co., 
lOS   La.   562. 

53.  It  is  amendable — Williams  v.  "Wiley 
(Tex.)   71  S.  W.  12. 

54.  Motion  should  be  made  above  for  a 
new  bond  before  dismissing — In  re  Gannon's 
Estate   (Neb.)   89  N.  W.  1028. 

85.  Koutnik  v.  Koutnik.  196  111.  162. 

86.  Johnson  v.  Manning,  75  App.  Div.  (N. 
T.)    288. 

87.  Colburn  v.  Seymour,  29  Colo.  292,  68 
Pac.  219. 

55.  Nations  v.  Lovejoy,  80  Miss.  401. 

SO.  Hayes  v.  Union  Merc.  Co.,  27  Mont. 
264.  70  Pac.  975. 

90.  Rev.  St.  1895,  art.  1025,  permits  amend- 
ments in  form  or  substance — Williams  v. 
"Wiley   (Tex.)    71  S.  "W.  12. 

91.  Engel  v.  Atkinson  (Colo.  App.)  71  Pac. 
683. 

92.  Ropes  V.  Kemps  (Fla.)  33  So.  244; 
Florida  Cent.  &  P.  R.  Co.  v.  Peacock  (Fla.) 
33    So.    247. 

93.  An    entry    in    the    minutes    instead    of 


the  chancery  order  book  and  not  naming  a 
return  day  or  term  is  no  notice  to  appellee — 
Cotter  V.  Holmes  (Fla.)  3S  So.  246;  L'Engle 
v.  Holmes   (Fla.)   33  So.  247. 

94.  Appeal  must  be  on  chancery  order 
book  and  not  on  minutes — Cotter  v.  H :>lmes 
(Fla.)  33  So.  246. 

95.  L'Engle  v.  Holmes   (Fla.)   33  So.  247. 

96.  Barden  v.  Stickney,  130  N.  C.  62. 

97.  Mere  filing  of  the  notice  does  not  fix 
the  time  when  jurisdiction  is  transferred — 
Barton  v.  New  Haveo,  74  Conn.  729. 

98.  If  allowed  to  the  wrong  court,  can 
afterwards  be  allowed  to  the  right  one — 
Vallee  v.  Hunsberry,  108  La.  136.  Jurisdic- 
tion not  transferred  if  there  is  no  appeal- 
able decision — Mrgan  v.  McCausland,  96  Me. 
449. 

99.  As  In  Nebraska — Ewings  v.  HofBne 
(Neb.)    93  N.  W.  186. 

1.  Final  judgment  not  yet  entered  below — 
Bell  V.  Stewart  (Ga.)   43  S.  E.  70. 

2.  If  a  suspensive  appeal  be  granted 
lo'wer  court  should  not  disturb  it  by  seq- 
uestration or  injunction — New  Orleans  v. 
Bilgery,  108  La,  191.  Setting  aside  judg- 
ment, the  trial,  etc..  after  appeal  taken,  are 
invalid — Story  &  Clark  Piano  Co.  v.  Gib- 
bons (Mo.  App.)  70  S.  W.  168.  The  court  of 
claims  loses  jurisdiction  when  the  record 
goes  up  on  appeal — Monroe  v.  U.  S.,  37  Ct.  of 
CI.  79. 

Pendency  of  appeal  does  not  bar  motion 
below   to    amend    record — Birnbaum    v.    May, 


SUPERSEDEAS  AND  STAY. 


125 


lower  court  cannot  grant  a  supersedeas  thereafter/  or  divest  jurisdiction,*  but  may 
during  term  request  the  return  of  the  record  if  proper  grounds  for  a  new  trial 
have  arisen.^  The  trial  court  has  no  control  over  the  cause  to  enter  a  dismissal.' 
If  the  appeal  is  not  yet  perfected,  the  trial  court  has  control  for  ancillary  pro- 
ceedings.'^ It  is  very  doubtful  if  a  court  can  enforce  a  decree,  though  entered  upon 
mandate,  if  it  has  been  appealed,  and  a  supersedeas  bond  tendered.*  The  estoppel 
of  the  judgment  is  destroyed  if  the  review  is  de  novo,  or  if  there  is  a  supersedeas, 
but  not  if  error  is  brought.®  A  suspension  of  limitations  may  result.^"  Execution  on 
a  judgment  is  stayed,  but  its  validity  remains  unchanged.^^  Where  a  receivership 
for  a  firm  is  not  appealed  from,  but  judgment  is  appealed  from  and  supersedeas 
taken,  the  receivership  and  custody  of  the  property  remain  in  the  lower  court.^- 
Appeals  from  collateral  orders  do  not  oust  the  trial  court's  jurisdiction  as  to 
further  proceedings  in  the  cause,"  and  an  appeal  by  one  party  has  no  such  effect 
on  independent  questions  litigated  between  other  parties;^*  nor  need  it  follow 
that  a  provisional  order  is  stayed  by  appeal  from  the  judgment.^^  Under  statutes 
working  a  supersedeas,  the  trial  court,  though  ordinarily  empowered  to  modify  a 
divorce  decree  as  respects  the  custody  of  children,  cannot  do  so  when  that  is  the 
matter  appealed  from.^®  In  Montana,  the  district  court  has  exclusive  power  pend- 
ing appeal  to  allow  temporary  alimony.^^  On  an  appeal  from  probate,  the  probate 
court  cannot  grant  general  letters,  testamentary  or  of  administration.^'  Appealing 
and  superseding  an  order  annulling  a  will  reinstates  the  executor  only  so  far  as  to 
enable  him  to  maintain  the  appeal.^®  The  statute  in  Montana  stays  a  mandatory 
injunction ;-°  but  ordinarily  it  can  be  done  only  by  special  allowance.^^  Appeal  from 
a  denial  of  habeas  corpus  to  an  applicant  charged  with  crime  does  not  stay  the 
prosecution,  and  no  stay  is  authorized.^^  Supersedeas  will  not  serve  the  office 
of  a  restitution.^^  Superseding  a  decree  for  specific  performance  within  a  certain 
time  extends  that  time  from  the  day  of  the  return  of  the  mandate  of  affirmance.^* 
Appealing  from  part  of  an  inseparable  decision  vacates  all.^^ 


170  N.  T.  314.  Appeal  by  intervener  in  quo 
warranto  does  not  stay  judgment  for  relator, 
(statute  excepts  judgments  determining 
right  to  office  from  stay) — People  v.  Camp- 
bell, 138  Cal.  11,  70  Pac.  918. 

3.  Johnson  v.  Turner  (Fla.)    33  So.  238. 

4.  Appeal  from  final  settlement  by  pro- 
bate court — In  re  Button's  Estate,  92  Mo. 
App.  132. 

5.  New  evidence — Nutter  v.  Mossberg,  118 
Fed.   168. 

6.  Spindler  v.  Gibson,  72  App.  Div.  (N.  T.) 
150.  Clerk  of  trial  court  cannot;  it  must  be 
done  on  application  or  motion  above — Da 
Costa  V.  Dibble   (Fla.)   33  So.  466. 

7.  Crawford  v.  Chicago,  R.  I.  &  P.  R.  Co. 
(Mo.)  66  S.  W.  350. 

8.  Southern  B.  &  L.  Ass'n  v.  Carey,  117 
Fed.   325. 

9.  Reese  v.  Damato  (Fla.)  33  So.  462.  Ap- 
peal suspends  conclusiveness  of  judgment — 
Boucher  v.  Barsalou   (Mont.)   69  Pac.  555. 

10.  Lien  of  judgment  is  extended — Ebel  v. 
Stringer  (Neb.)  93  N.  W.  142.  On  right  of 
action  for  deficiency  on  mortgage — Brand  v. 
Garneau  (Neb.)   93  N.  W.  219. 

11.  Hence  an  action  may  be  brought  on 
it  and  garnishee  proceedings  instituted — 
Salem-Bedford  Stone  Co.  v.  Hobbs,  28  Ind. 
App.   520. 

12.  Lamb  V.  Rowan   (Miss.)    33  So.   4. 

13.  Later  proceedings  in  settlement  of 
trustee's  account — Gardner  v.  Stare,  136  Cal. 
xix,   69   Pac.   426.     A  plea  of  pendency   of  an 


appeal  from  the  vacation  of  an  attachment 
is  no  defense  to  an  action  on  the  attachment 
bond  unless  coupled  with  an  allegation  that 
there  was  also  a  stay  of  proceedings — Pow- 
ell v.  Bursky,  39  Misc.  (N.  Y.)   533. 

14.  Appeals  from  a  judgment  setting  aside 
conveyances  to  a  son  before  reserving-  those 
to  a  wife — Perrine  v.  Perrine,  63  N.  J.  Ea. 
483. 

15.  Appealing  from  an  order  setting  aside 
an  absolute  divorce  does  not  merge  a  prior 
judgment  for  maintenance  against  the  hus- 
band— Smith  V.  Superior  Ct.,  136  Cal.  17,  68 
Pac.  100. 

16.  Vosburg  V.  Vosburg,  137  Cal.  493,  70 
Pac.   473. 

17.  Bordeaux  v.  Bordeaux,  26  Mont.  533, 
69  Pac.  103. 

IS.     Ex  parte  Wesslnger,  63  S.  C.  130. 

19.  State  V.  Superior  Ct.,  28  Wash.  677,  69 
Pac.   375. 

20.  Code  Civ.  Proc.  §  1733 — Maloney  v. 
King,  26  Mont.  492,  68  Pac.  1014. 

21.  See  post,  this  section,  "Supersedeas  by 
special  order." 

22.  State  v.  Fenton,  30  Wash.  325,  70  Pac 
741. 

23.  Adverse  party  had  already  taken 
possession  under  judgment — Thompson  v. 
Thompson,  24  Ky.  Law  Rep.  645. 

24.  Southern  Oil  Co.  v.  Scales  (Tex.  Civ. 
App.)    69   S.   W.   1033. 

25.  Appeal    from    partial    disallowance    of 


126 


APPEAL  AND  REVIEW. 


In  equity,  appeal  places  the  parties  as  they  were  at  the  beginning  of  the 
action.^* 

The  appellate  court  cannot  vacate  a  statutory  supersedeas  on  the  ground  that 
an  appeal  is  frivolous.*^ 

Supersedeas  by  special  order  or  allowance. — If  a  decree  be  self-executing,  a 
stay  cannot  be  taken. ^'  A  suspensive  appeal  is  not  given  to  one  "svho  treated  the 
judgment  as  binding,-®  or  against  one  who  is  not  party  or  subject  to  the  control  of 
the  court.'" 

As  to  what  matters. — Judgments  in  extraordinary  proceedings,'^  and  tem- 
porar.'  injunctions,  but  not  mere  ex  parte  restraining  orders,  are  often  made  super- 
sedable.'-  It  wiU  not  be  done  if  a  vacation  of  the  order  is  the  practical  result  of  a 
stay.''  A  statute  excepting  judgments  granting,  modifying,  continuing,  or  dis- 
solving injunctions  from  the  supersedeas  statutes,  and  committing  the  superseding 
of  such  matters  to  the  discretion  of  the  court,  does  not  authorize  the  continuation  of 
a  temporary  restraining  order  issued  by  the  clerk,  when  the  court  dissolves  it 
and  an  appeal  is  taken.'*  A  statute  providing  that  an  appeal  from  contempt  shall 
not  stay  any  other  action  does  not  forbid  a  supersedeas  of  the  contempt  order 
itself."  If  a  will  be  annulled,  and  another  one  admitted  to  probate  with  a  grant 
of  administration  and  authority  to  distribute,  notwithstanding  an  appeal  from  the 
annulment,  the  appellate  court,  to  protect  its  jurisdiction,  will  stop  distribution.'" 
Xo  law  in  Montana  authorizes  the  staying  of  a  perpetual  injunction,  since  the 
statutes  apply  only  to  interlocutory  injunctions.'"  In  Xebraska,  it  is  discretion- 
ary with  the  district,  and,  after  taking  up  the  cause,  with  the  supreme  court,  to  allov.- 
supersedeas  in  cases  not  enumerated  by  statute.'* 

Procedure,  order,  or  writ,  and  its  ejfect. — Under  the  laws  of  Kentucky,  the 
trial  court  cannot  continue  a  temporary  restraining  order  after  an  appeal  is  taken. 
The  authority  Hes  in  the  higher  court."  In  Florida,  circuit  judges  cannot  grant 
supersedeas  on  appeal  from  fjial  decree.*"  On  a  motion  for  stay,  an  objection 
that  a  perpetual  injunction  is  void  will  not  be  heard.*^  A  special  order  to  super- 
sede an  injunctional  order  is  always  necessary  in  Florida.*-    A  federal  supersedeas 


claim    by    county   board — Dakota    County    v. 
Borowsky  (Xeb.)   93  N.  W.  686. 

26.  An  appeal  in  equity,  with  the  filing 
and  approving  of  a  supersedeas  bond,  sus- 
pends decree — Riley  v.  Melia  (Neb.)  92  N.  TV. 
913. 

27.  Johnson  v.  Turner  (Fla.)   33  So.  238. 

28.  Decree  declaring  a  mulct  law  proceed- 
ing to  be  insufficient — "Whitlock  v.  Wade 
(.Iowa)  90  N.  W.  587. 

29.  Husband  ■who  remarried  after  decree 
of  divorce — State  v.  King   (La.)    33  So.  121. 

30.  The  railroad  company  had  under  its 
franchise  entered  on  a  highway,  pending  ap- 
peal from  proceedings  to  establish  the  high- 
wav — Madera  County  v.  Raymond  Granite 
Co.',  138  Cal.  244,  71  Pac.  112. 

31.  Judffment  in  quo  warranto  is  super- 
sedable  by  virtue  of  Rev.  St.  §  1272 — Simon- 
ton  V.  State  (Fla.)  32  So.  809. 

32.  An  order  to  show  cause  against  a 
permanent  injunction  made  returnable  to  an- 
other district  and  directing  the  issuance  of 
a  temporary  restraining  order  was  held  a 
mere  restraining  order,  not  supersedable 
after  dissolution,  the  return  day  not  being 
at  the  term  at  which  the  cause  was  triable — 
Riggins  V.  Thompson  (Tex.  >  71  S.  Vi*.  14.  An 
order  made  on  hearing  that  an  obstruction 
by   an    adjoining    owner    be    removed   held    a 


temporary  injunction,  susceptible  of  continu- 
ance by  supersedeas — State  v.  Superior  Ct.. 
30  Wash.  197,  70  Pac.  233.  Temporary  man- 
datory injunction  to  deliver  property  is  su- 
persedable— State  V.  Superior  Ct.,  28  Wash. 
403,   68  Pac.   865. 

33.  Under  the  laws  and  constitution  of 
Montana  an  order  of  injunction  against 
working  a  mine  of  which  appellants  were  in 
possession  is  mandatory  in  effect,  hence  can- 
not be  stayed  by  special  order,  since  Code 
Civ.  Proc.  §  1733.  stays  proceedings,  and  since 
an  order  for  a  stay  would  operate  as  a  va- 
cation, which  the  supreme  court  could  not 
do  as  incidental  to  its  appellate  powers — Ma- 
loney  v.  King,  26  Mont.  487.  68  Pac.  1012. 

34.  Jones  V.  Walter,  24  Ky.  Law  Rep.  878. 

35.  State  V.  Superior  Ct.,  28  Wash.  590,  68 
Pac.  1051. 

36.  State  v.  Superior  Ct.,  28  Wash.  677,  69 
Pac.   375. 

37.  Maloney  v.  King,  26  Mont.  487,  68  Pac. 
1012. 

38. 
39. 
40. 
41. 
1014. 
42. 


Carson  v.  Jansen   (Neb.)    91  N.  W.  398. 
Jones  v.  Walter.   24  Ky.  Law  Rep.  878. 
Johnson  v.  Turner   (Fla.)   33  So.  238. 
Maloney  v.  King,  26  Mont.  492,  68  Pac. 

Under    the    laws    of   Florida,    whether 


'  the   supersedeas   be   by   operation   of   law    or 


APPEARANCE,  ENTRY  AND  DOCKETING. 


127 


bond  ordinarily  given  does  not  suspend  an  injunction  granted  by  the  decree  ap- 
pealed from  unless  the  trial  judge  so  specifies.*^  An  order  for  an  appeal  containing 
an  allowance  of  a  supersedeas  granted  to  an  order  dissolving  an  injunction  con- 
tinues it  in  force  on  the  giving  of  the  proper  bond/*  A  supersedeas  in  quo  war- 
ranto suspends  only  further  action,  leaving  the  judgment  stand.*^  If  a  stay 
be  allowed  from  a  self-executing  decree,  it  will  be  a  nullity.*^  If  the  under- 
taking for  supersedeas  be  regularly  filed,  and  the  amount  properly  fixed,  it  is  im- 
material that  the  record  showed  no  determination  on  the  subject  of  motion  for 
a  stay;*^  but  the  mere  allowance  of  a  suspensive  appeal  in  Louisiana  does  not 
alone  operate  suspensively  on  the  jurisdiction  below.*^ 

§  8.  Appearance,  entry,  and  doclceting  above. — Appellant  should  make  an 
appearance  above.*®  A  special  appearance  below  is  not  enlarged  to  a  general  one  by 
taking  an  appeal  and  filing  an  appeal  bond.^°  A  motion  to  docket  and  dismiss  for 
delay  may  be  made  at  any  time  while  the  defect  remains  unremedied.^^  If  a  case 
has  not  been  settled  in  time  to  prepare  and  docket  a  transcript,  so  much  of  one  as  is 
available  should  be  made  up  and  docketed,  and  the  remainder  then  brought  up  by 
proper  proceedings.^^  A  mistaken  appeal  may,  in  Colorado,  be  redocketed  as  er- 
ror f^  e.  g.,  a  cause  reviewable  by  error  which  it  is  too  late  to  appeal.^*  When  a  dis- 
missed appeal  is  redocketed  as  on  error,  it  should  be  without  prejudice  to  renewal  of 
motion  to  dismiss,  if  there  is  doubt  as  to  the  appropriateness  of  error.^^ 

§  9.  Perpetuation  of  proceedings  and  evidence  for  the  reviewing  court.  A. 
The  record  proper  and  what  it  must  show. — The  rule  that  error  must  be  made  to 
affirmatively  appear,  and  that  particular  matters  must  be  shown  by  the  record,  to 
•authorize  a  review  of  particular  alleged  errors,  is  elsewhere  treated.^^  But  in  adcli- 
tion  to  this  it  is  usually  held  that  certain  matters  must  be  shown  in  order  to 
sustain  the  appeal  generally. 

Jurisdiction  of  the  court  below  is  ordinarily  presumed,  but,  where  absence  of 
jurisdictional  steps  appears,  the  presumption  does  not  obtain  ;^^  and  where  tlic 
existence  of  a  constitutionaP^  or  federal  question,^®  or  a  minimum  amount  in 


by  order  of  the  supreme  judges,  if  the  grant- 
ing or  dissolving  of  an  injunction  is  pro- 
vided for  among  other  things,  the  superse- 
deas will  not  be  effective  as  to  the  injunc- 
tion unless  a  special  application  and  order 
of  the  supreme  court  or  a  judge  thereof  be 
had  to  that  end — Johnson  v.  Turner  (Fla.) 
33  So.   238. 

43.  Violation  of  the  injunction  should  be 
redressed  against  the  injunction  but  not 
against  the  supersedeas  bond — Green  Bay  & 
M.  Canal  Co.  v.  Norrie,  118  Fed.   923. 

44.  New  River  Mineral  Co.  v.  Seeley,  117 
Fed.   981. 

45.  Hence  contempt  cannot  be  brought 
against  an  ousted  party  who  refuses  to  sur- 
render ofTice — Simonton  v.  State  (Fla.)  32  So. 
809. 

46.  Whitlock  V.  Wade  (Iowa)  90  N.  W. 
587. 

47.  Harris  v.  Snyder,  113  Wis.  451. 

48.  Upton  V.  Adeline  Sugar  Factory  Co. 
(La.)  33  So.  725. 

49.  Florida  practice — Ropes  v.  Kemps 
(Fla.)  33  So.  244;  see,  also,  Florida  C.  &  P. 
R.  Co.  V.  Peacock   (Fla.)   33  So.  247. 

50.  White  House  Mountain  G.  M.  Co.  v. 
Powell   (Colo.)   70  Pac.  fi79. 

51.  Worth  V.  Wilmington,  131  N.  C.   532. 

52.  Worth  V.  W^ilmington,  131  N.  C.  532. 

53.  Appeal    from    county    court;    Mills'    A. 


C.  §  388a,  expressly  permits  it — Denver  &  R. 
G.  R.  Co.  V.  Peterson   (Colo.)   69  Pac.  578. 

Appeal  from  judgment  of  county  court  dis- 
missed and  redocketed  on  error — Bailey  v. 
O'Fallon  (Colo.)  70  Pac.  755;  Colorado  F.  &  I. 
Co.  V.  Knudson   (Colo.  App.)    70  Pac.   698. 

54.  Mills'  Ann.  Code,  §  388a;  Roseberry  v. 
Valley  B.  &  L.  Ass'n  (Colo.  App.)  68  Pac. 
1063. 

55.  Taylor  v.  Colorado  Iron  Works,  29 
Colo.   372,   68   Pac.   218. 

56.  See  post,  §  13.  Limitation  by  contents 
of   record. 

57.  Biart  v.  Myers   (Neb.)   91  N.  W.  573. 

58.  Unless  it  does,  the  court  of  appeals  can- 
not transfer  the  cause  to  the  supreme  court — 
Dawson  v.  Waldheim,   91  Mo.  App.   117. 

59.  A  certificate  of  the  judge  will  not 
suffice — Home  for  Incurables  v.  New  York, 
187  U.  S.  155.  Thus  if  it  be  faised  by  as- 
sertion of  title  under  act  of  congress,  the 
record  must  show  that  such  claim  of  title 
was  made  in  the  state  courts — Sweringen  v. 
St.  Louis,  185  U.  S.  38,  46  Law.  Ed.  795.  It 
must  appear  that  the  constitutional  provision 
offended  was  in  the  federal  and  not  in  the 
state  constitution — New  York  C.  &  II.  R.  R. 
Co.  V.  New  York,  IS 6  U.  S.  269,  46  Law.  Ed. 
1158.  In  order  to  raise  the  question,  the 
pleadings  should  specify  what  constitutional 
provision  is  violated — ^Ash  v.  Independence, 
169  Mo.   77. 


128 


APFB&L  AXD  BKVIBW. 


eomtroversy,**  is  eBsential  to  the  jurisdiction  of  the  appeDate  court,  xhe  facts  giving 
jurisdiction  must  wppesr  by  the  record,  though  it  is  sometimes  held  th^  jttrisdic- 
tional  facts  may  be  ascertained  from  outside  tiie  record.*^ 

The  ruling  complained  of,**  and  the  judgment  or  order  of  the  court  z~^z^  m-is: 
appear,**  and  a  record  entry  tiiereof  is  esspntial.**  On  appeal  from  an  intermediate 
ooort,  the  jndgmen:  c:  "±e  tt :  "  "  must  be  in  the  record,**  as  must  tbi:  of  the  in- 
termediate court** 

;  :  :i.5  •■       rr  :;  instructions  objected  to,**  :.-'.  :.  r  ti^lt.. 
r!:--  ^?Te  taken,  must  ap: 


The  making  o:      ;     ::  i-^  " 
of  exceptions,**  an" 
not  excepted  to  cai^  -    - 

sidered.'* 

Proceedings  for  nev  trial  and  to  c 
timely  filirig  dE  the  motion  for  new  txi  : 
tiie  appeal,"  and  grant  thereof,"  the  pr: 

•a.     ICarx  A  Haas  Co.  ▼.  'Watson.  ICS  Mo. 
1S3,  3S  I^  R.  A.  951.     Under  Gen.  St  1»«1,  I 
5tl9.  the  leeocd  most  show  that  the  water 
risht  in   controTersy  was  worth    over   Jl©t' 
or  the  trial  jndse  most  have  certified  tha* 
title  to  land  was  Involved,  in  order  to  give 
soprone  comrt  jurisdiction — Grant  v.   R«br 
C4  Kan.   SSS.   «7  Pac   9St.     A  vencrT    sM.rs 
for  his  Interest,  whidi  is  limited  : :     ^-;i 
imrehase  money,  does  not  show  yir:-:-" 
by  allesations  that  the  property  — 
more   than   the  statutory   amouni —  :  -    I 

V.  "WoodmlL  1»S  HL  491-    A  record    =      -   -? 
judgment  for  $2tSS.  and  affidavit  iz   g.r 
mnnt    stating    that   the    ganlshee    ~~-; 
deo£ed  to  tte  debtor,  but  not  sii:  r.r    -:  — 
umeh.  does  not  show  that  gamis -rrs    — tTt 
indebted  in  {IM*  ao  as  to  make  clfr    ssi. 
Oie  pioeeas  ai^ealahle — Pick  ▼.  If 
bs.  Gol.  193  m.  157. 

«.    Towle  V.  Hr^se.  «4  Kan.  7* 
«3T. 

ca.    Stuart  V.  IDtchum.  135  Ala.  ;  ^ 
em  Union  TeL  Oo^  v.  Crocker.  13; 
The  convening  order  under  wlilct:  i-  e 
gafr  need  not  be  inserted — Oom'rs  of  Ki  .r 
Co.  V.  saialEner  fWyoL>  SS  Pac  14. 

«3l    CampbeU   v.   City   of  Stan'r  ^ 
AkilI  M  S.  W^.  5S7:  OTJonneU  v. 
HI.  App.  5;  In  re  Pina's  Estatew  K ;  ;•    - 

71  Pac.  1~1:  Toung  v.  Hatch  (Ool: 
C93:  Lacas  v.  HuiC.  92  Mol  Af^  Zii 

The  bill  of  exceptions  must  st : 
Judgment  was  entered  or  the  ease 
setting  aside  a  judgment  and  oper_    - 
fiuilt— SeU  V.  Stewart  (Ga.)  43  S.  _ 
appeal    from    the    probate   court.    - 
script  must  show  a  jndgmoit  ider. 
that  appealed   from — Barker  ▼.    . 
Kstate.  9S  ID.  Appu  T>. 

9U    IGkesen  v.  S: -:i    S?-:  :  Co., 

•9  Ind.  A^  «S«- 

I>ocket   entries   Ir 
dent  to  show  that  ; 
a    master's    report 
T8C»g«gii   19  Pa.  Sur  ^  - 

A  recital  in  the  - 
133  Ala.  3S2}:  or  .^ 
(CDonneU  v.  Quir:_ 

the  abstract  is  insui-  .     :. .     -  -  

gott  [Pla.]  33  SOu  9£$ 

The  bin  of  except:  :-=  mr  ":  ?     :     —  -:   at  to 
see  if  there  was  a   - .  r  i .  -  ?   '  -    r  ^  =. 

r«auest  therefor,  ar  i    .  -    .  -  t  -  r    —  :  e 


j-sring  no  eioeptioii= 

— Tbe  r^:::-"    - 


of 


63..      S 
"■>3~      I : 


173;   Cox  V.  Coiir 
son   V.   Lieader  yn-. 
'  ? ".        Ground 

rapbeU  (S.  D.)   . 

>>«.     Payne  v.  v 

I:   — --?  ?^r;sht  : 


Xicker- 
iro.    App. 


Mo. 
Ma.    Appl 

:  s  on    (Ind. 


c    "vr. 


I  Co.  V.  Martir 
y-4.    Brow-  ^ 
recital  there ; : 
cient. 

I      T5.    Greer— : 
::x  App.)    'i 


7*.  Weil  7 
7*4.  In  Ml; 
ments  are  £ 
an  aOowan: 


THE  RECORD. 


129 


exceptions/''  and  these  must  be  shown  by  the  record  and  not  by  recitals  in  the 
billJ^  Proceedings  after  supersedeas  resulting  from  an  appeal  need  not  be  included 
in  the  record.^^    Evidence  of  facts  outside  the  record  is  occasionally  received.®* 

B.  What  is  part  of  record  proper;  necessity  of  bill  of  exceptions  or  its  equivalent. 
— The  record  proper,  which  the  appellate  court  can  consider  without  its  being 
authenticated  by  a  bill  of  exceptions,  comprehends  pleadings  and  amendments 
thereto,*^  including  demurrers,®^  a  stipulation  for  submission  on  the  pleadings, 
made  part  of  the  judgment  entry,*^  but  not  a  consent  to  the  entry  of  judgment/* 
also  a  bill  of  exceptions  taken  on  a  former  trial  and  read  at  the  second  trial,  is 
part  of  the  record.®^  Grounds  for  a  ruling  are  not  necessarily  recorded. ^^  Docu- 
ments will  not  go  up  unless  they  were  in  court  below.^^  Proceedings  on  application 
for  a  rehearing  are  not  of  the  record  of  the  determination  concerning  which  re- 
hearing is  sought. ®® 

Bringing  matters  into  the  record. — Prevailing  plaintiff,  as  against  an  appealing 
defendant,  must  see  that  material  evidence  is  in  the  record.®^  A  bill  of  exceptions 
is  the  usual  procedure  for  bringing  matters  into  the  record.  Where  the  bill  of 
exceptions  is  quashed,  the  court  will  consider  the  case  as  if  there  had  been  no 
bill.^'*  "Where  the  statute  allows  proceedings  to  be  made  of  record  by  order,  its 
provisions  must  be  strictly  complied  with  /^  and  without  such  a  statute  an  order  to 
make  proceedings  of  record  is  ineffectual.^^  Grounds  for  appellate  jurisdiction  not 
apparent  of  record  should  be  certified.^^     The  record  in  another  cause  between 


be  considered  to  have  been  made  though 
not  shown  by  the  record — Williams  v.  Kirby, 
169  Mo.   622. 

77.  Filing-  of  the  bill — Jaco  v.  Southern 
Missouri  &  A.  R.  Co.,  94  Mo.  App.  567;  Ed- 
mondson  v.  South  Georgia  R.  Co.,  115  Ga. 
790;  Biles  v.  Beadle  (Mo.  App.)  71  S.  W.  465; 
Upton  V.  Castleman  (Mo.  App.)  67  S.  W.  70T; 
Lucas  V.  Huff,  92  Mo.  App.  369.  Filing  of 
case  made — Johnson  v.  Johnson  (Kan.)  71 
Pac.  518.  Extension  of  time  to  file — Knight 
V.  Bergmann  (Mo.  App.)  68  S.  W.  237;  Thomp- 
klns  V.  Muntzell,  Id.  240;  Andrews  v. 
Meadow,  133  Ala.  442;  MiResell  v.  South 
Bend  Elec.  Co.,  29  Ind.  App.  689;  Thompson 
V.  Dampskibsaktieselskabet  Habil,  135  Ala. 
249;  Tinsley  v.  Kemry  (Mo.)  TO  S.  W.  691; 
Liindsey  v.  Kenan,  133  Ala.  532;  Robertson  v. 
Boyd  (Mo.  App.)  68  S.  W.  976;  Samuel  v. 
Nashville,  C.  &  St.  L.  R.  Co.,  135  Ala.  501. 
The  order  was  not  dated  and  the  time  of 
making  did  not  appear.  Filing  within  ex- 
tension granted — Hinton  v.  Sun  Life  Ins.  Co. 
(Tenn.)  72  S.  W.  118.  And  leave  to  file  in 
vacation — Dantzler  v.  Swift  Creek  Mill  Co.. 
128  Ala.  410;  Massillon  Engine  &  Thresher 
Co.  v.  Arnold,  133  Ala.  368;  Zion  Fountain 
Lodge  v.  Folkes,  132  Ala.  609.  A  record  re- 
citing the  filing  of  a  bill  of  exceptions,  such 
recital  being  followed  by  the  bill  and  a  cer- 
tificate to  the  transcript  that  It  contained 
"all  orders  and  motions"  affecting  the  judg- 
ment and  appeal  is  sufficient  to  show  filing. 

78.  Welty  v.  Gibson  (Mo.  App.)  71  S.  W. 
704.  Recitals  in  the  bill  are  insufficient  to 
excuse  delay — Smith  v.  Baer,  166  Mo.  392; 
and  see,  Haydon  v.  Alkire  Grocery  Co.,  88 
Mo.  App.  241;  but  service  may  appear  other- 
wise than  by  the  acknowledgment  thereof — 
Southern  R.  Co.  v.  Barfield,  115  Ga.  724.  A 
record  entry  of  the  filing  of  a  bill  of  ex- 
ceptions "as  follows"  followed  by  a  bill  to 
which  the  judge's  signature  was  affixed 
shows  that  the  bill  was  signed  before  filing — 
State  V.  ROckwood  (Ind.)  64  N.  E.  592. 

Cur.  Law — 9. 


79.  They  are  a  nullity — Story  &  Clark 
Piano  Co.  v.  Gibbons  (Mo.  App.)  70  S.  W.  168. 

80.  Bankruptcy  of  party — Scruby  v.  Nor- 
man, 91  Mo.  App.  517. 

81.  McCall  V.  Herring   (Ga.)    42   S.  E.    468. 

82.  Mallinckrodt  Chemical  Works  v.  Nem- 
nich,  169  Mo.  388. 

83.  Board  of  Com'rs  v.  Shaffner  (Wyo.)  68 
Pac.  14. 

84.  Grant  v.  McArthur,  137  Cal.  270,  70 
Pac.  88. 

85.  Hill  V.  American  Surety  Co.,  112  Wis. 
627. 

86.  A  board  of  equalization  should  certify 
legal  grounds  for  its  rulings;  and  evidence 
other  than  the  record  will  be  had  only  when 
they  refuse  to  do  so — Newark  v.  North  Jer- 
sey St.  R.  Co.   (N.  J.  Sup.)   53  Atl.  219. 

87.  Ballots  will  not  be  brought  up  as  part 
of  the  record  of  an  election  case,  unless 
they  were  in  some  manner  placed  in  proof 
or  brought  Into  court — Edwards  v.  Logan,  24 
Ky.  Law  Rep.   678. 

88.  Record  on  granting  liquor  license  does 
not  include  affidavits  on  application  for  re- 
hearing— In  re  Chuya's  License,  20  Pa.  Super. 
Ct.   410. 

89.  O'Connall  v.  Thompson-Starrett  Co., 
72  App.  Div.   (N.  Y.)   47. 

90.  Nester's  Estate  v.  Carney,  98  111.  App. 
630;  Gonzales  Mandlebaum  Co.  v.  Broghamer 
(Neb.)  89  N.  W.  621;  Helm  v.  Byfield  (Neb.) 
91  N.  W.  511;  Janoska  v.  Pickard  (Neb.)  91 
N.  W.  521. 

91.  Proceedings  not  set  out  in  order — 
Fredericksburg  v.  Wilcoxen.   158  Ind.  359. 

Motion  ordered  to  be  included  not  spread 
on  order  book  and  not  showing  that  order 
was  on  motion  (Burns'  Rev.  St.  1901,  §  662)  — 
Board  of  Com'rs  v.  Gibson,  158  Ind.  471. 

92.  Wood  V.  Tattnall  County,  115  Ga.  1000. 

93.  If  record  did  not  show  proper  juris- 
dictional amount,  other  ground  of  jurisdic- 
tion must  have  been  certified — Grant  v.  Robb, 
64  Kan.  886,  67  Pac.  852. 


130 


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BILL   OF  EXCEPTIONS. 


131 


or  in  arrest  of  judgmenV^  the  opinion  of  the  trial  court/'  instructions/*  and 
requests  for  findings." 

C.  The  hill  of  exceptions.  1.  Form  and  requisites}^ — All  instructions  ob- 
jected to  may  be  joined  in  one  bill.^'^  The  sustaining  of  separate  demurrers  by  sev- 
eral defendants  may  be  presented  in  one  bill/^  but  a  joint  bill  cannot  be  made 
on  the  overruling  of  two  demurrers  argued  together  without  consolidation  of  the 
causes.^* 

The  general  rule  is  that  the  bill  must  state  the  ground  of  objection.^"  Where 
several  exceptions  are  saved  by  the  same  bill,  each  must  show  the  ground  of 
objection.^^  The  findings  and  judgment,  and  exceptions  thereto,  must  appear  ;^^ 
but  matters  extrinsic  to  the  proceeding  and  adjudication  brought  up  should  be 
excluded.^^  Matters  occurring  in  the  presence  of  the  court  and  matters  judicially 
noticed  may  be  included.^* 

Redundant  matter  must  be  eliminated.^^  The  fact  that  the  bill  contains  other 
matters  than  the  evidence  does  not  invalidate  it.^*  The  evidence  should  never 
be  given  in  the  form  of  question  and  answer :"  and  the  fact  that  the  trial  judge  so 
desired  does  not  justify  such  a  presentation.^^  A  bill  containing  500  pages,  and 
without  the  marginal  notes  required  by  the  rule,  will  not  be  considered.^'' 

A  paper  referred  to  in  the  bill  must  be  annexed  or  identified  beyond  all 
doubt.^"     Eeference  in  bill  to  evidence  in  transcript,^^  to  instructions  in  record,^^ 


70  S.  W.  238;  Gretsch  v.  Maxfield  (Neb.)  93 
N.  W.  934;  Esert  v.  Glock,  137  Gal.  533,  70 
Pac.  479;  Timmonds  v.  Twomey  (Ind.)  66 
N.  E.  446;  F.  Chevalier  &  Co.  v.  Wilson,  30 
Wash.  227,  70  Pac.  487.  Affidavit  on  motion 
for  new  trial — Creamery  Pckg.  Mfg.  Co.  v. 
Hotsenpiller  (Ind.)  64  N.  E.  600;  People  v. 
Smith,  201  111.  454;  Shuey  v.  Holmes,  27 
Wash.  489,  67  Pac.  1096.  Affidavit  as  to  re- 
marks of  counsel — Ryans  v.  Hospes,  167  Mo. 
342.  Affidavit  of  clerk  to  loss  of  papers — 
Memphis  L.  &  T.  Co.  v.  Board  of  Directors, 
70  Ark.   409. 

10.  Frick  V.  Kabaker,  116  Iowa,  494.  And 
see  Ryans  v.  Hospes,  167  Mo.  342. 

11.  Galveston,  H.  &  S.  A.  R.  Co.  v.  Pen- 
dleton (Tex.  Civ.  App.)  70  S.  W.  996;  Board 
of  Com'rs  v.  Shaffner  (Wyo.)  68  Pac.  14; 
Kansas  City  v.  Mastin,  169  Mo.  80;  Leforce 
V.  Andrews  (Ind.  Ter.)  69  S.  W.  812;  Bryson 
v.  Wallace  (Ind.  Ter.)  69  S.  W.  814;  Salomon 
V.  Ellison,  102  111.  App.  419.  Errors  urged 
for  new  trial — Gregory  v.  Leavitt  (Neb.)  89 
N.  W.  764:  Gandy  v.  Cummins  (Neb.)  89  N. 
W.  777.  Notice  of  motion  for  new  trial  is 
not  sent  up,  but  should  be  included  in  state- 
ment or  bill  of  exceptions — Madigan  v.  Har- 
rington, 26  Mont.  358,  67  Pac.  1121.  In  Mis- 
souri the  rule  is  otherwise — Turney  v.  Ewins 
(Mo.  App.)    71  S.  W.   543. 

12.  Johnson  v.  Bedford,  90  Mo.  App.   43. 

13.  Aachen  &  M.  Fire  Ins.  Co.  v.  Crawford, 
199  111.  367;  Jenkinson  v.  Koester,  86  Minn. 
155;  Harrington  v.  Butte  &  B.  Min.  Co.,  27 
Mont.  1,  69  Pac.  102.  But  see  Beasley  v. 
Ridout,  94  Md.  641,  where  statements  in  the 
opinion  as  to  admission  of  facts  were  con- 
sidered admissions  of  record. 

14.  Savannah,  F.  &  W.  R.  Co.  v.  Brink 
(Fla.)  33  So.  245,  when  not  indorsed  and 
signed  by  the  judge  as  required  by  Rev. 
St.  §§  1090,  1091,  but  when  so  indorsed  they 
are  part  of  the  record,  or,  under  the  Ken- 
tucky practice,  identified  by  the  judge — 
Beavers  v.  Bowen,  24  Ky.  Law  Rep.  882. 

15.  Recital  in  motion  for  new  trial  insuf- 


ficient to  show  request  for  findings — First 
Nat.  Bank  v.  Citizens'  State  Bank  (Wyo.)  70 
Pac.  726. 

16.  It  Is  a  rule  that  assignments  or  speci- 
fications should  not  combine  distinct  or  di- 
verse errors.     See  post,  §  11. 

17.  Richmond  Passenger  &  Power  Co.  v. 
Robinson  (Va.)   41  S.  E.  719. 

18.  Butler  v.   Lewman,   115   Ga.   752. 

19.  Purvis   v.    Ferst,    114    Ga.    689. 

30.  Though  the  contrary  is  held  in  Texas 
— Gunnels  v.   Cartledge   (Tex.)    64   S.   W.   806. 

21.  Richmond  Passenger  &  Power  Co.  v. 
Robinson   (Va.)    41   S.  E.  719. 

22.  Colson  v.  Linn,   101   111.  App.   194. 

23.  Comp.  Laws,  §  10,504,  allowing,  on 
writ  of  error  where  new  trial  is  refused,  the 
incorporation  Into  the  bill  of  all  proceed- 
ings had  on  the  motion  for  new  trial,  means 
that  error  will  lie  to  such  an  order  and  that 
in  that  case  the  bill  of  exceptions  should 
contain  only  proceedings  on  the  motion — 
Walker  v.   Newton    (Mich.)    90  N.   W.   328. 

24.  State  v.  Fawcett    (Neb.)   90  N.   W.   250. 

25.  Whipple  V.  Preece,  24  Utah,  364,  67 
Pac.   1072. 

26.  Town  of  Lewlsville  v.  Batson,  29  Ind. 
App.    21. 

27.  Louisville  &  N.  R.  Co.  v.  Hall,  131  Ala. 
161.  Code,  §  33,  authorizes  evidence  to  be 
set  out  "in  extenso"  in  certain  cases,  but 
this  was  held  to  authorize  only  a  statement 
in  narrative  form.  A  bill  containing  re- 
marks of  counsel  and  judge,  unanswered 
questions,  rulings  not  excepted  to,  etc.,  will 
be  stricken  from  the  files — Southern  R.  Co. 
v.  Jackson,  133  Ala.  384.  A  bill  containing 
the  complete  stenographic  report  of  the  tes- 
timony, being  in  violation  of  Code,  p.  1201, 
§  33,  will  be  stricken — Louisville  &  N.  R.  Co. 
V.  Hall,  131  Ala.  161. 

28.  Louisville  &  N.  R.  Co.  v.  Hall,  131  Ala. 
161. 

29.  City  of  Lafayette  v.  Wabash  R.  Co., 
28   Ind.   App.    497. 

30.  McKendree  v.  Shelton,   51  W.   Va.   516. 


132 


APPEAL  AND  REVIEW. 


to  the  transcript  for  the  exceptions,"  or  to  papers  filed  on  a  motion,"  is  insufficient. 
A  motion  to  strike  out  a  pleading  cannot  be  incorporated  by  reference.^*  A 
statement  in  the  bill  that  a  deed  attached  to  interrogatories  was  the  original  is 
sufficient  to  show  that  the  original  was  shown  to  the  witness.^^ 

The  bill  is  to  be  construed  against  the  exceptant.^" 

2.  Settlement,  signing,  and  filing. — The  bill  must  ordinarily  be  settled  by  the 
judge  who  heard  the  case,  if  not  disabled  or  disqualified,'^  but  it  is  sometimes  pro- 
vided that  the  clerk  may  sign  the  bill  if  stipulated  to  be  correct.'®  Stipulation  will 
not  supply  want  of  this  signature.*"  If  several  judges  hear  different  proceedings 
therein,  several  bills  must  be  obtained  from  the  respective  judges."  The  chairman 
of  an  official  board  should  sign,  settle  and  allow  bills  of  exceptions  to  proceedings 
before  the  board." 

A  bill  will  not  be  considered  if  not  presented  within  the  time  limited  by* 
statute;*'  but  there  may  be  a  nunc  pro  tunc  order  authorizing  the  filing  of  a  bill 
properly  settled;**  and  a  federal  judge  may,  under  extraordinary  circumstances, 
allow  a  bill  after  the  term,  though  there  has  been  no  extension.*^  Inadvertent 
failure  to  file  an  exception  is  not  ground  for  leave  to  file  nunc  pro  time.**  A 
bill  filed  within  an  extension  allowed  by  the  court  is  valid ;"  but  one  filed  after 
the  expiration  of  the  time  allowed  by  an  order  is  of  no  effect.**    An  extension  may 


Reference  in  a  bill  to  "other  ballots"  ob- 
jected to,  etc..  "but  not  mentioned  herein" 
held  not  sufficient — People  v.  Campbell,  138 
Cal.  11,  70  Pac.  918. 

31.  N.  T.  Life  Ins.  Co.  v.  Brown's  Adm'r, 
23  Ky.  Law  Rep.  2070. 

32.  Southern  R.  Co.  v.  Jones,  132  Ala.  437; 
C.  B.  &  Q.  R.  Co.  V.  Haselwood.  194  111.  69. 

33.  County  Ct.  Rule  29  provides  that  the 
transcript  is  to  be  referred  to  only  to  test 
accuracy  of  statement  or  review  whole  evi- 
dence— Carrow  v.  Barre  R.  Co.,  74  Vt.  176. 

34.  San  Diego  Sav.  Bank  v.  Goodsell,  137 
Cal.  420,  70  Pac.  299.  Sup.  Ct.  Rule  29  pro- 
vides that  they  must  be  incorporated  in  the 
bill.  Matter  must  be  copied  into  the  bill  or 
referred  to  as  provided  by  the  statute  al- 
lowing skeleton  bills  (Burns"  Rev.  St.  1901, 
§  63S) — Tilden  v.  Louisville  &  J.  Ferry  Co., 
157  Ind.  532.  Matter  not  filed  until  after 
skeleton  bill  is  settled  cannot  be  incorpo- 
rated by  reference — Ellis  v.  School  Dist.  No. 
3,   89  Mo.  App.  258. 

35.  Midland  R.  Co.  v.  Trissal  (Ind.  App.) 
f.5  N.  E.   543. 

36.  Harper  v.  Reaves,  132  Ala.  625.  The 
deposition  stated  that  the  witness  was  shown 
the  deed  attached  to  the  interrogatories. 

ST.  Fisher  v.  Bertram,  100  111  App.  542; 
Jones  V.  Glothart,  Id.  630.  Ruling  is  not 
supposed  to  have  been  made  unless  one  ap- 
pears— Chicago,  etc.,  R.  Co.  v.  Lawrence, 
ye  111.  App.  635. 

38.  Death,  sickness  or  "other  disability" 
(Act  Cong.  June  5,  1900)  does  not  include 
"absence"  of  trial  judge — "V\"estern  Dredg- 
ing Co.  V.  Heldmaier  (C.  C.  A.)  Ill  Fed. 
123. 

Where  a  statute  changing  county  lines 
provides  that  the  former  judge  shall  set- 
tle exceptions  in  pending  cases,  a  settlement 
by  the  new  judge  is  ineffectual — Carr  v. 
Noah.    2S    Ind.   App.    105. 

39.  Mutual  stipulations  that  no  amend- 
ments were  to  be  made  suffices — Williams  v. 
Miles,   62  Neb.   566. 

40.  The  judge  was  dead,  but  it   was  con- 


sidered that  the  statutory  method  of  estab- 
lishing in  such  ease  was  exclusive — Nash- 
ville, C.  &  St.  L.  R.  Co.  V.  Bates,  133  Ala. 
447. 

41.  Staunton  Coal  Co.  v.  Menk,  99  111. 
App.    254. 

42.  Union  Stock  Yards  Bank  v.  Board 
I  Neb.)    91    N.   W.    286. 

43.  Hershberger  v.  Kerr  (Ind.)  65  N.  E. 
4;  American  Tin  Plate  Co.  v.  T\'illiams  (Ind. 
App.)  65  N.  E.  304;  City  of  Elwood  v.  Laugh- 
lin,  29  Ind.  App.  667.  Not  presented  within 
20  days  after  the  ruling  complained  of 
— Regopoulas  v.  State,  115  Ga,  232:  Good- 
rich V.  Ga.  R.  &  B.  Co.,  Id.  340.  Not  pre- 
sented within  10  days  after  service  of  pro- 
posed amendments — Burns  v.  Napton,  26 
Mont.  360,  68  Pac.  17.  Tendered  more  than 
thirty  days  after  adjournment  of  term 
—American  Freehold  Land  Mtg.  Co.  v.  Walk- 
er, 115  Ga.  737;  McDaniel  v.  Allison,  Id. 
751;  Alabama  Mineral  R.  Co.  v.  Marcus,  12S 
Ala,  355;  Richter  v.  Koopman,  131  Ala. 
399.  Must  be  presented  at  same  term  un- 
less extension  granted — McDonald  v.  Algeo, 
96  111.  App.  79;  City  of  Covington  v.  Wii- 
son,  23  Ky.  Law  Rep.  1722. 

44.  Haydon  v.  Alkire  Grocery  Co.,  SS  Mo. 
App.    241." 

45.  Western  Dredging  &  Imp.  Co.  v.  Held- 
maier (C.  C.  A.)  116  Fed.  179.  In  this  case 
a  nunc  pro  tunc  settlement  was  alloived 
where  the 'trial  judge  was  absent  from  the 
circuit  and  the  bill,  being  settled  by  an- 
other judge.  Tvas  quashed  because  of  his 
lack  of   authority. 

46.  Berliner  v.  Piqua  Club  Ass'n,  73  App. 
Div.  622.  Leave  to  rene'w  the  motion  on  an 
affidavit  stating  further  cause  was  allowed 
on    payment    of   costs. 

47.  Gorringe  v.  Read.  24  L'tah.  455;  Ol- 
son V.  Oregon  Short  Line  R.  Co..  Id.  460. 

48.  Girdner  v.  Bryai.  94  Mo.  App.  27. 
Presentation  after  the  time  aPowed  though 
within  30  days  ineffectual — Bullock  v.  Cor- 
dele  Sash.  Door  &  Lumber  Co..   114   Ga.   627. 


BILL  OF  EXCEPTIONS. 


133 


be  made  ex  parte,*'  or  in  vacation.^"  The  extension  must  be  made  before  the  time 
allowed  has  expired  ;^^  but  time  for  filing  may  be  extended  on  stipulation  even 
after  the  time  originally  limited  has  expired.^^  Statutory  limitation  of  the  extent 
to  which  time  may  be  enlarged  by  stipulation  cannot  be  waived.^^  An  extension 
of  time  to  settle  bill  on  a  motion  for  a  new  trial  by  one  defendant  will  not  operate 
in  favor  of  his  co-defendant,  who  appeals,  not  from  the  denial  of  the  motion,  but 
from  the  judgment. °*  A  postponement  of  the  hearing  on  proposed  amendment 
works  an  extension  of  the  time  for  presentation  of  the  bill  for  settlement.^^  The 
taking  of  an  appeal  within  the  time  allowed  for  settlement  does  not  bar  the 
right  to  settle  the  bill,^®  Wliere  a  motion  for  a  new  trial  was  not  made  in  time,  a 
bill  of  exceptions  30  days  after  its  denial  is  too  late.^'^  Plaintiff  cannot  preserve 
his  exceptions  to  the  sustaining  of  a  demurrer  by  one  defendant  by  exceptions 
pendente  lite.^^  A  bill  of  exceptions  to  a  judgment  cannot  include  exceptions  to 
an  interlocutory  ruling  at  a  previous  term,  and  not  then  settled. ^^  An  indorse- 
ment on  the  bill,  of  an  extension  of  time  for  "filing,"  is  ineffectual  under  an 
act  authorizing  extension  of  "signing"  only;  hence  a  tardy  signing  is  void;  and  a 
journal  entry  not  authorized  does  not  aid  it,  though  reciting  an  extension  as  to 
signing  as  well  as  filing.®" 

A  curative  act  for  the  making  of  a  bill  of  exceptions,  to  supply  one  made 
under  an  unconstitutional  law,  is  itself  unconstitutional,  if  rights  already  vested 
by  failure  to  seasonably  perfect  the  appeal  by  preparing  a  bill  of  exceptions  are 
in  any  way  impaired  so  as  to  \dolate  contract  rights.®^ 

The  death  of  a  party  does  not  prevent  the  settlement  of  exceptions  taken 
by  him.®^  A  certificate  that  certain  matters  stated  in  the  bill  were  "probably 
correct"  has  been  held  sufficient.®^  A  certificate  by  the  court  reporter  conflicting 
with  that  of  the  judge  is  of  no  effect.®*  The  bill  must  be  signed  by  the  judge 
as  such.®^  The  bill  must  be  filed®®  after  signature,®^  and  a  filing  before  signature 
is  insufficient ;®®  but  failure  of  the  clerk  to  attach  a  file  mark  does  not  prejudice 
the  exceptant.®^     No  leave  to  file  the  bill  is  necessary  unless  an  allowance  of 


49.  City  of  Chicag-o  v.  Rustln,  99  111.  App. 
47. 

50.  Louisville  &  N.  R.  Co.  v.  McDonald, 
79  Miss.  641.  The  statute  authorizes  an  ex- 
tension by   "the  court." 

51.  Lewellyn  v.  Lewellyn,  87  Mo.  App.  9; 
Ward  V.  Sumner,  Id.  624;  and  see  Alabama 
Mineral  R.  Co.  v.  Marcus,  128  Ala.  355; 
Cooley  V.  United  States  Sav.  &  Loan  Co., 
132    Ala.    590. 

52.  Loeff  V.   Taussig,   102   111.   App.    398. 
.53.     Cooley  v.  United  States  Sav.  and  Loan 

Co.,  132  Ala.  590.  Practice  rule  30  (Code  p. 
1200)  provides  that  time  may  be  extended 
by  consent  to  the  next  term  of  court  and 
no  longer.  It  was  also  held  in  this  case 
that  the  rule  did  not  conflict  with  Code,  § 
620,  providing  that  the  time  shall  not  be 
extended  "by  the  court"  more  than  six 
months.  It  was  further  held  that  after  the 
period  to  which  the  parties  could  lawfully 
extend  had  expired  the  court  had  no  power 
to  make  a  further  extension. 

Code.  §  616,  providing  that  time  for  set- 
tlement may  be  extended  by  consent  Is  lim- 
ited by  section  618.  providing  that  time 
for  filing  may  be ,  fixed  by  stipulation  in 
term  time  or  extended  in  vacation — Tisdale 
v.    Alabama   &   G.    Lumber   Co.,    131    Ala.    456. 

54.     Henry  v.  Couch,   132   Ala.   570. 

5.5.     Boyer  v.   Burnett,   134   Cal.    481. 

50.  Capital  City  Ins.  Co.  v.  Cofield.  131 
Ala.   198. 


National    Union    v.    Stoll,    65    Ohio    St. 
Johnson   v.   Gehbauer    (Ind.)    64   N.    B. 


57.  Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Ohio 
Postal  Tel.  Co.,  22  O.  Cir.  Ct.  R.  555,  12  O. 
C.  D.  522. 

.'8.     Holland   v.    Saul,   115   Ga.    511. 

59.  Guyer  v.  Davenport,  R.  I.  &  N.  W.  R. 
Co.,    196    111.    370. 

60. 
547. 

61. 
855. 

62.  Haydon  v.  Alkire  Grocery  Co.,  88  Mo. 
App.  241. 

6.3.  Atwood  V.  Walker,  179  Mass.  514. 
The  matter  in  question  was  a  list  of  au- 
thorities offered  to  show  the  law  of  a  for- 
eign state  and  excluded. 

64.  Saussay  v.  Lemp  Brewing  Co.  (Neb.) 
89   N.    W.    1048. 

65.  Nestor's  Estate  v.  Carney  Bros.  Co., 
98  111.  App.   630. 

66.  Union  Cent.  Life  Ins.  Co.  v.  Evans,  28 
Ind.    App.    518. 

67.  Wilson  v.  St.  Louis  &  S.  F.  R.  Co.,  167 
Mo.  323;  Ayres  v.  Blevlns,  28  Ind.  App.  101; 
Tretheway  v.  Peek,  Id.  81;  Trittlpo  v.  Trit- 
tipo.  Id.  80;  Allen  v.  Hamilton.  157  Ind.  621; 
City    of    Indianapolis    v.    Tansell,    Id.    463. 

68.  Acme  Cycle  Co.  v.  Clarke,  157  Ind. 
271;    Hershberger   v.   Kerr    (Ind.)    65    N.   E.    4. 

69.  June  v.  Falkinburg,  89  Mo.  App.  563. 
A  stipulation  that  the  bill  may  be  incor- 
porated into  the  transcript  waives  a  fall- 
ure  of  the  clerk  to  attach  a  file  mark — Chi- 


134 


APPEAL  AND  BBVIEW. 


time  is  desired.^*  The  biU  must  be  tmder  seaL"  The  amendments  shoiild  be  incor- 
porated and  a  dean  copy  made,  and  an  aUowance  of  the  propos-i  bC  and  amend- 
ments is  insnfScient.** 

Duty  and  mforcement.— The  jndge  need  not  sign  a  second  biH"  Befusal 
to  settle  a  bill  on  a  question  of  fact  will  not  be  controlled  by  mandamus,  where 
the  evidence  is  conflicting;"  but  where  the  judge  refuses  to  sign  unless  matters 
resting  in  his  own  mind,  and  forming  no  p«rt  of  the  proceedings,  are  inserted, 
mandamus  will  issue."  The  remedy  for  improper  refusal  to  sign  is  by  mandamus, 
not  appeal  or  error,  unless  there  is  a  statutory  remedy."  Unsigned  biU  not  ac- 
companied by  affidavits  of  bjstanders  is  of  no  effect" 

Amendment  and  vacation.— The  bill  may  be  amended,  but  only  from  a  matter 
of  record-"*  The  fact  that  an  amendment  will  require  the  incorporation  of  addition- 
al matter  in  the  interest  of  the  other  party  is  no  ground  for  denial  of  the  motion." 
Delav  in  moving  to  correct  the  bill  is  excusable  if  resulting  from  technical  ob- 
jections bT  the  otiier  party  to  the  procedure  to  correct."* 

In  the  note  are  shown  grounds  for  striking  out  or  retaining  a  bilL"  Denial, 
of  a  motion  for  leave  to  present  a  new  bill  on  grounds  not  going  to  the  merits 
does  not  bar  a  motion  to  amend  the  bill.--  A  motion  to  strike  out  for  incorrect- 
ness must  be  accompanied  by  a  correct  b: — -* 

D.  The  settled  case  or  statement  of  /„  r.^— This  being  in  the  nature  of  a 
statutory  substitute  for  a  bill  of  esccitlons,  the  procedure  in  rerp-ect  to  it  Taries  in 
different  jurisdictions.** 

All  extrinsic  matters  shci. 
designed  for  use  below  cann:: 
record  fails  to  show  whether  a     :     -  . 
insert,"  not  followed  by  the  in  n 

A  statement  filed  after  tie        r 


:ded.*»  A-  •-  : 
rred  as  a  dii  : 
ience  was  introd" 
-  ~::ament  re:::: 
.  -  ;r  after  th;  :.i 


ent  of  facts 
.  where  the 
".-■     A  •'nere 


A.PP- 


Oo.  V. 


eaeo  City  R-  Co.  t.  Martenser. 

TIL.    Hartford  Life  &  Ann-::; 
Rossiter.  S8  IlL  App-  11- 

71.  Vosseler  ▼•  WTieeler.   8$  DL   App.   21- 

72.  Dyea  Blec  Light  Col  ▼.  Easton,  15  S. 
D.  5"2-  A  delay  of  seven  months  In  cor- 
recting a  bm  after  it  has  been  returned  b. 
the  judge  for  that  purpose  under  C5hr.  Ooi^ 
f  554S  is  fatal — Sutton  ▼.  Valdosta  Gnan : 
Co,  U5  Ga.  T94- 

73.  People  v.  Perdue,  99  EU-  App.  zS9. 

74.  Kowalsky   v.   Kerrigan.   134   CaL    5.- 
6S   Pac    850.     Proof  against  a  trial   judge  = 
finding  of  laches  in  presenting  the  bUl  mus 
be  clear — State  ▼.  Holmes   (Xeb.)    91  N.  W 
175. 

75.  State  T.  Fawcett.  «3  Xeb.  523;  Hart- 
ford Ufe  &  Annuity  Ins.  Co.  ▼.  Rossiter. 
19S  nL  Yil.  "WTiere  the  judge  refused  to 
settle  a  bill  on  appeal  from  an  order  ad- 
justing a  guardian's  accounts  until  a  cer- 
tain book  was  included  and  it  appeared  that 
the  book  had  been  destroyed  without  fault 
of  the  guardian,  mandamus  was  issued — 
Crooks  V.  Superior  Court  of  San  Francisco^ 
136  CaL  23.  88  Pac  9S.  _ 

7«.  Code  Cav.  Proc  i  «4«;  State  t.  :  2.w- 
oett  (Neb.)  90  N.  W.  250.  _ 

77.  Gulf.  CL  *  a  F.  R.  Co.  V.  ^:.:  '.ex. 
Civ.  App.)  70  S.  W.  591. 

78.  Jackson  v.  Fulton.  87  Mo.  Arp.   2.5. 
7%.    Piatt  V.  Schmitt  fWis.)  91  X.  W.   5S2. 

Insertion   of   srich   matters   may   be    ordered 
as  &  condition. 


SO.     ? 

81-     .-. 
time  VTL 
KeUer 
907.     A 


fWis.) 


rgan  Co. 
:  O.  a  D. 


Cox  (j.ex. 


AI>! 


S3.     Chic  2.  r  : 
22  Ohio  Cir     T: 

Si.     The    : 
be  ^raiTed — Z  r 
125. 

85.    Terriiir: 
Pac  813. 

9e.     Scott 
802. 

87.  Bowden 
Sl  ir.  47. 

88.  Anderson  ▼.  TTalker  (Tex.  Civ.  App.) 
07  a  "W.  432:  reversed  95  Tex.  5?'  —.  -he 
ground  that  a  good  excuse  was  s :  -  -  :'  - 
the    delay.     And    ^ipellant    has    tl  t 

of  proof  ir  he  seeks  to  eximse  his   r^ 
der  (Rev.  St.  1895,  art.  1382) — Sisk  e 

\  (Tex.  (3v.  App.)  C8  &  IT.  S«. 

89l     HoUywood  ▼.    "Wellii-sez       .  ei.    C;t. 


Davis   (Tex.  C5v. 


ABSTRACTS. 


135 


will  not  be  considered;  and  refusal  to  allow  filing  after  expiration  of  time  is  dis- 
cretionary.^** Application  for  extension  need  not  be  made  during  the  time  original- 
ly allowed. ^^  It  is  immaterial  that  the  case  was  signed  at  a  different  time  and 
place  than  that  named  in  the  notice,  if  no  objection  was  made.®^  The  court  cannot 
allow  an  ex  parte  amendment  after  a  stipulation  for  settlement.^'  A  certificate  at- 
tached to  the  statements  proposed  by  each  party  treating  them  as  a  single  statement, 
is  a  sufficient  settlement.^* 

E.  Ahstracts. — These  are  of  two  classes, — abstracts  of  the  record  proper  and 
abstracts  of  the  evidence, — though  both  are  sometimes  combined  in  a  single 
abstract,  and  the  practice  in  different  states  overlaps  to  an  extent  which  renders 
impossible  the  separate  treatment  of  each  class.  There  is  also  an  abstract,  so  called, 
which  in  many  jurisdictions  is  required  as  part  of  the  brief.  It  summarizes  the 
matters  in  contention  like  an  opening  statement  to  the  jury.^° 

Necessary  contents. — All  matters  which  counsel  wish  to  urge  must  be  ab- 
stracted.®* The  sufficiency  of  the  evidence  will  not  be  considered  where  there  is 
no  brief  of  the  evidence.^^  The  abstract  should  contain  a  recital  of  all  that  pertains 
to  the  record  proper,®^  including  the  filing  of  a  motion  for  a  new  trial,®®  the  filing 
of  the  bill  of  exceptions,^  and  the  taking  of  the  appeal  ;2  and  an  abstract  not 
complying  with  the  rules  of  court  will  not  be  considered.'  The  abstract  must  identi- 
fy the  part  of  a  pleading  to  which  an  exception  is  taken.*  Instructions  must  be 
numbered. ° 

Proceedings  not  to  he  stated  in  extenso. — Documents  should  be  abstracted,  and 


App.)  68  S.  W.  329;  Wilcox  v.  League  (Tex. 
Civ.  App.)  71  S.  W.  414;  Dennis  v.  Neal 
(Tex.  Civ.  App.)  71  S.  W.  387,  though  no  mo- 
tion to  strike  out  is  made. 

90.  The  excuse  alleged  was  misunder- 
standing of  code  provision — Ingrim  v.  Ep- 
person,   137  Cal.    370,   70  Pac.   165. 

91.  But  must  be  made  within  60  days 
after  such  expiration,  the  statute  providing 
that  not  more  than  60  additional  days  shall 
be  allowed — CrOwley  v.  McDonough  (Wash.) 
70  Pac.   261. 

92.  Comstock  v.  Eagleton,  11  Okl.  487,  69 
Pac.    955. 

93.  Watkins  v.  La  Mar,  10  Kan.  App.  226, 
69   Pac.   730. 

94.  Herrman  v.  Great  Northern  R.  Co.,  27 
Wash.   472,   68  Pac.  82. 

95.  See  post,  §  11,  "Briefs." 

96.  Hughes  V.  Humphreys,  102  111.  App. 
194;  Douglass  v.  Miller,  102  111.  App.  345; 
Crawford-Adsit  Co.  v.  Bell,  100  111.  App.  366; 
Van  Meter  v.  Lambert,   104  111.  App.   243. 

07.  Equitable  Mortg.  Co.  v.  Bell,  115  Ga. 
651;  Atlanta  &  W.  P.  R.  Co.  v.  Upshaw,  115 
Ga.  688;  Indiana,  D.  &  W.  R.  Co.  v.  Ditto,  158 
Ind.  669;  Hancock  v.  McNatt  (Ga.)  42  S.  E. 
525;  Gerspach  v.  Barhyte  (Colo.  App.)  68 
Pac.  1057.  An  auditor's  report  of  the  evi- 
dence brought  tip  In  the  bill  will  take  the 
place  of  a  brief  of  the  evidence — Schmidt  v. 
Mitchell  (Ga.)  43  S.  E.  371.  And  where  ab- 
stracts of  evidence  are  not  ordinarily  used 
it  has  been  said  that  when  the  testimony 
is  voluminous  counsel  should  agree  on  a 
selection — Carrow  v.  Barre  R.  Co.,  74  Vt. 
176. 

98.  The  abstract  should  show  the  filing 
and  contents  of  the  pleadings,  the  judg- 
ment, the  motion  for  a  new  trial  and  rul- 
ing thereon,  the  proceedings  for  appeal  and 
the   filing   of  the   bill  of   exceptions — Jordan 


v.  Chicago  &  A.  R.  Co.,  92  Mo.  App.  81. 
People's  Sav.  Bank  v.  Gordon  (Mo.  App.) 
71   S.   W.    470. 

99.  McCormick  Harvesting  Mach.  Co.  v. 
Crawford  (Mo.  App.)  72  S.  W.  491;  Kirk  v. 
Kane  (Mo.  App.)  71  S.  W.  463;  Opp  v.  Kohler 
(Mo.  App.)  72  S.  W.  128;  Roberts  v.  Modern 
W.   of  A.    (Mo.  App.)    71   S.   W.   1075. 

1.  Nold  Lumber  Co.  v.  Easton  (Mo.  App.) 
67  S.  W.  934;  Kirk  v.  Kane  (Mo.  App.)  71 
S.  W.  463;  Baumeister  v.  Toomey  (Mo.  App.) 
71  S.  W.  1070;  Roberts  v.  Modern  W.  of  A. 
(Mo.  App.)    71   S.   W.   1075. 

Including  the  extension  of  time  to  file — 
Greenwood  v.  Parlin,  etc.,  Co.  (Mo.  App.)  72 
S.  W.  138;  Roberts  v.  Modern  W.  of  A.  (Mo. 
App.)  71  S.  W.  1075;  order  for  filing — Hughes 
V.  Henderson,  95  Mo.  App.  312.  And  this 
must  appear  by  the  original  and  not  '_7 
an  amended  abstract — Western  W.  S.  Co.  v. 
Kolkmeyer,  91  Mo.  App.  286.  See,  also,  Al- 
bin  V.  Chicago,  R.  I.  &  P.  R.  Co.  (Mo.  App.) 
67    S.   W.    934. 

2.  A  statement  that  the  notice  of  ap- 
peal was  "issued"  instead  of  "served"  on 
defendant  is  insufficient — Oskaloosa  Cigar 
Co.  V.  Iowa  Cent.  R.  Co.  (Iowa)  89  N.  W. 
1065.  And  a  statement  that  within  statu- 
tory time  a  due  and  sufficient  notice  of  ap- 
peal was  served  states  only  a  conclusion  of 
law  and  is  Insufficient — Jaroszewski  v.  Al- 
len   (Iowa)    91   N.   W.   941.  * 

3.  The  transcript  may  be  referred  to 
(Brassfield  v.  Knights  of  Maccabees,  92  Mo. 
App.  102)  but  where  the  abstract  does  not 
authorize  a  review  of  any  question,  the  court 
will  not  look  to  the  transcript — Dixon  v. 
Thomas,    91    Mo.   App.    364. 

4.  Robertson  v.  Dunne    (Fla.)    33  So.   530. 

5.  Trimble  v.  Terrll,  99  111.  App.   349. 


136 


APPEAL  AND  REVIEW, 


not  set  out  in  full,^  and  the  evidence  must  be  properly  abridged.^  The  record  en- 
tries need  only  be  recited.* 

Supplemental  and  counter  alstrads. — A  supplemental  abstract  may  be  filed 
before  submission  of  the  cause,®  or  before  joinder  in  issue.^*'  Omissions  should  be 
urged  by  the  filing  of  an  additional  abstract.^^ 

§  10,  Transmission  of  proceedings  and  evidence  to  reviewing  court.  A.  Form 
and  contents  of  transcript  or  return. — ^The  transcript  should  contain  only  such 
papers  as  are  necessary  to  an  understanding  of  questions  raised  ;^^  but  an  incomplete 
transcript  made  under  the  instructions  of  appellant's  counsel  will  not  be  con- 
sidered,^^ The  transcript  must  show  the  pleadings,^*  The  court  below  cannot 
direct  that  testimony  not  in  the  bill  of  exceptions  be  included  in  the  transcript,^^ 

The  original  files  will  not  take  the  place  of  a  transcript.^* 

The  evidence  will  not  be  examined  if  the  transcript  is  not  indexed  ;^^  and,  if 
there  are  no  marginal  notes,  the  clerk  will  be  instructed  to  insert  them,^* 

Defects  or  omissions. — The  appeal  will  be  dismissed  for  failure  to  file  a  tran- 
script,^® The  inadvertent  omission  of  a  rule  of  court  will  be  overlooked  where  it  is 
given  in  one  of  the  briefs,^"  An  informal  statement  of  the  date  and  entry  of  orders 
included  in  the  transcript  is  sufficient,^^  If  the  transcript  is  illegible,  a  new  one 
will  be  required,^^ 

B.  Certification  and  authentication. — The  transcript  must  be  duly  certified  by 
the  clerk.^^    The  clerk's  certificate  to  the  transcript  must  be  under  seal.^*    Docu- 


e.  Graham  v.  Baxley  (Ga.)  43  S.  E.  405. 
Where  pleadings  and  irrelevant  documents 
are  set  out  at  length,  the  abstract  will  not 
be  considered — Thoma  v.  Hecker  (Iowa)  90 
N.  W.   598. 

7.  Hurley  v.  Hurley  (Iowa)  91  N,  W, 
895. 

8.  Scott  V.  Black  (Mo.  App.)   70  S.  W.  523. 

9.  Turney  v.  Ewins  (Mo.  App.)  71  S.  W. 
643.  Though  one  filed  on  leave  obtained  on 
the  day  of  submission  without  consent  of  re- 
spondent is  improper — W'elty  v.  Gibson  (Mo. 
App.)  71  S.  W.  704.  And  omission  of  the 
judgment  motion  for  new  trial  and  record 
of  filing  bill  of  exceptions  cannot  be  sup- 
plied without  consent — Albin  v.  Chicago.  R. 
J.  &  P.  R.  Co.  (Mo.  App.)  67  S.  W.  934. 
See,  also,  Western  W.  S.  Co.  v.  Kolkmeyer, 
91  Mo.  App.  2S6,  in  which  it  was  said  that 
the  filing  of  a  bill  of  exceptions  must  be 
shown  by  the  original,  not  by  an  amended 
abstract. 

10.  And  the  filing  of  briefs  is  a  joinder 
in  issue  under  this  rule — Hoffman  v.  Lou- 
don   (Mo.  App.)    70   S.  W.   162. 

11.  Roe  v.  Bank  of  Versailles.  167  Mo. 
406;  Taylor  v.  Vandenberg,  15  S.  D.  480; 
Tufts  v.  Morris,  92  Mo.  App.  389.  A  denial 
of  an  amended  abstract  must  be  supported 
by  the  transcript — Foley  v.  Cudahy  Packing 
Co.  (Iowa)  93  N.  W.  284. 

12.  An  amended  affidavit  for  attachment 
and  the  traverse  thereof  are  sufficient  to 
shoTv  jurisdiction  tvithout  the  original  affi- 
davit— Reese  v.  Damato  (Fla.)  33  So.  459. 
The  transcript  is  sufficient,  if,  though  not 
complete,  it  fully  presents  all  questions  in- 
volved— Brown  v.   Schintz,   98  111.  App.   452. 

13.  Charter  Oak  S.  &  R.  Co.  v.  Rice,  108 
La,  699.  The  withdrawal  of  the  long  hand 
manuscript  from  the  files  in  an  attempt  to 
comply  with  the  invalid  act  of  1899  will 
not  be  treated  as  a  mutilation  of  the  rec- 
ord, and  questions  not  depending  on  the  evi- 
dence will  be  reviewed — Johnson  v.  Gehbau- 


er  (Ind.)  64  N.  E.  855.  Where  an  appeal 
is  abandoned  and  a  new  one  taken  a  new 
schedule  for  a  partial  transcript  must  be 
filed — Hackney  v.  Hoover   (Ky.)    67  S.  W.   48. 

14.  O'Brien  Lumber  Co.  v.  Shoot,  104  111. 
App.    348. 

15.  West  V.  East  Coast  Cedar  Co.  (C.  C. 
A.)    113   Fed.   737, 

16.  Brabham  v.  Custer  County  (Neb.)  92 
X.  W.  989;  Chappell  v.  Jasper  County  O.  & 
G.  Co.  (Ind.  App.)  66  N.  E.  515;  Marcy  Mfg. 
Co.  V.  Flint  &  W.  Mfg.  Co.,  158  Ind.  173. 
And  Laws  1887,  p.  182,  allo'wing  the  original 
bill  of  exceptions  to  be  included  does  not 
justify  the  incorporation  of  the  original  of 
a  master's  report  and  the  evidence  taken  be- 
fore him  (Beth  Hammidrash,  etc.,  v.  Oak- 
woods  Cemetery  Assn.  200  111.  480)  and 
where  the  practice  is  to  send  up  only  what 
is  specified  by  counsel,  a  praecipe  for  a 
"transcript"  is  not  satisfied  by  the  orig- 
inal— Drew  V.  Geneva  (Ind.)  65  N.  E.  9. 
But  in  T\'isconsin  Rev.  St.  §  3050  requires 
the  original  papers  used  on  application  for 
an  order  to  be  transmitted  on  appeal  there- 
from— Schomberg  H,  L.  Co.  v.  Engel,  114 
Wis.    273. 

17.  Indiana.  D.  &  W.  R.  Co.  v.  Ditto,  158 
Ind.  669;  Peterson  v.  Union  Trust  Co.  (Ind.) 
65  N.  E.  1025.  Paper  book  must  have  index 
with  a  statement  of  question  and  plead- 
ings in  full  in  appendix  (Sailor  v.  Reamer, 
20  Pa.  Super.  Ct.  597)  and  in  Kansas  a  tran- 
script without  an  index  will  not  be  admitted 
to  the  files — Emporia  v.  Kowalski,  65  Kan. 
772.   70   Pac.   863. 

IS.     Brinkley  v.    Smith.    130   N.    C.    224. 

19.  Burdett  v.   Dale,    95   Mo.   App.    509. 

20.  Griffith  v.  Adams,    95   Md.   170. 

21.  The  court  indicates  the  proper  intro- 
ductory form — Board  of  Com'rs  v.  Shaffner 
(Wyo.)    68    Pac.    14. 

22.  Singer  Mfg.  Co.  v,  Rogers,  70  Ark. 
385. 

23.  Sone  V.  Grant  Oaks    (Mo.   App.)    70  S. 


TRANSMISSION  OF  RECORD. 


137 


ments  accompanying  the  transcript  must  be  certified  by  the  clerk.^"  A  bill  of 
exceptions  included  in  a  transcript  must  precede  the  certificate.-®  Where  the  cer- 
tificate to  the  transcript  states  the  title  of  the  case  differently  from  the  papers  in 
the  transcript  the  appeal  will  be  dismissed."  It  is  immaterial  that  the  certificate 
to  a  bill  of  exceptions  refers  to  it  as  a  "transcript/'^*  A  certificate  that  a  "recital" 
of  all  papers  is  included  is  insufficient.^^ 

C.  Transmission  and  filing. — The  appeal  will  be  dismissed  if  the  transcript  is 
not  filed  within  the  time  prescribed  by  law  or  rule  of  court,^°  though  jurisdiction  is 
not  lost  by  failure  to  file  in  time/^  and  may  be  excused.^^  It  is  usually  provided  by 
rule  that  the  time  may  be  extended.^^ 


W.  266.  A  certificate  by  the  judge  being 
insufficient — Duston  v.  Foster,  64  Kan.  886, 
67  Pac.  1102.  But  in  Illinois  the  certificate 
of  the  judge  to  the  statement  of  facts  is 
sufficient — Brown  v.  Schintz,  98  111.  App.  452; 
Heberlein  v.  Wendt,  99  111.  App.  506.  Where 
the  case  has  been  transferred  the  clerk  of 
the  court  to  which  it  is  transferred  should 
certify  the  record — Smith  v.  Pyrites  M.  & 
C.  Co.  (Va.)  40  S.  B.  918.  The  successor  of 
the  judge  who.  tried  the  case  may  certify 
the  statement  of  facts — Graton  &  K.  Mfg. 
Co.  V.  Redelsheimer,  28  Wash.  370,  68  Pac. 
879. 

In  Florida  habeas  corpus  transcripts  in 
error  must  be  certified  according  to  Cir. 
Ct.  Rule  103 — Hart  v.  Cotten  (Fla.)  31  So. 
817. 

24.  Comstock  v.  Stoner  (Ind.  App.)  66  N. 
B.  501;  Hesch  v.  Bolin  (Ind.  App.)  64  N.  B. 
39. 

25.  Holstein  v.  Klein  (Neb.)  93  N.  W.  214. 
Where  the  judge  by  way  of  amendment 
files  a  statement  showing  that  the  bill  is 
partly  untrue,  and  the  clerk  certifies  that 
the  bill  "as  amended"  is  true,  the  bill  will 
not  be  considered — Jarriel  v.  Jarriel,  115 
Ga.  23.  Where  the  clerk  certifies  that  the 
papers,  including  the  bill  of  exceptions, 
sent  up  are  the  originals,  the  omission  of 
a  signature  to  the  indorsement  of  filing  on 
the  bill  is  immaterial — Board  of  Com'rs  v. 
Shaffner  (Wyo.)  68  Pac.  14.  A  certificate 
relating  to  the  filing  of  the  longhand  manu- 
script of  evidence  held  to  show  that  the 
original  manuscript  was  transmitted — 
Payne  v.  Moore  (Ind.  App.)  66  N.  E.  483. 
The  judge's  certificate  is  not  necessary  to 
make  proceedings  in  chancery  part  of  the 
record — Hopper  v.   Mather,    104  111.   App.   309. 

26.  Butt  V.  Lake  Shore  &  M.  S.  R.  Co. 
(Ind.)    65    N.    B.    529. 

27.  Florida  Cent.  &  P.  R.  Co.  v.  Peacock 
(Fla.)    33  So.   247. 

28.  Oster  V.  Broe  (Ind.)  64  N.  E.  918. 
Unnecessary  recitals  of  fact  in  the  certificate 
are  immaterial — Scott  v.  Whipple  (Ga.)  42 
S.    E.    519. 

29.  It  should  be  stated  that  there  is  "a 
copy  of"  the  same — Burnham  v.  Driggers 
(Fla.)  32  So.  796.  The  certificate  should 
show  that  all  papers  used  on  a  hearing  are 
included,  not  that  all  "on  file"  are  there — 
Madden    v.    Kinney,    114    Wis.    528. 

30.  Gagneaux  v.  Desonier  (La.)  33  So. 
561;  In  re  Wegmann  (La.)  33  So.  192;  Da 
Costa  V.  Dibble  (Fla.)  33  So.  466.  The  stat- 
utory limitation  of  time  is  mandatory  in 
Ohio  (Downing  v.  Downing,  23  Ohio  Cir.  Ct. 
389)  b'lt  in  Washington  it  is  said  to  be 
directory — Prescott  v.  Puget  Sound  B.  &  D. 
Co..  30  Wash.  158,  70  Pac.  252.     Fifteen  days 


before  the  opening  of  the  term — Lucas  v. 
Heuston,  168  Mo.  658.  Within  40  days  after 
settlement  of  bill  of  exceptions — Bell  v. 
Southern  Pac.  R.  Co.,  137  Cal.  77,  69  Pac. 
692.  Third  day  of  next  term  convening 
more  than  thirty  days  after  taking  of  ap- 
peal— Taylor  v.  Colorado  Iron  Wks.,  29 
Colo.  372,  68  Pac.  218.  Ten  days  after  ap- 
peal is  perfected  on  appeal  from  probate 
court — Drexel  v.  Rochester  L.  &  B.  Co. 
(Neb.)  91  N.  W.  254.  Where  the  supreme 
court  would  not  be  in  session  10  days  after 
the  order  for  filing  transcript  an  order  for 
filing  at  the  first  day  of  the  next  session 
is  proper. — Posner  v.  Southern  B.  &  B.  Pipe 
Co.  (La.)  33  So.  641.  The  40  days  from  the 
time  the  appeal  is  entered  and  perfected 
runs  from  the  entry  of  the  appeal,  not  from 
the  approval  of  the  bond,  in  case  of  an  ap- 
peal by  the  District — District  of  Columbia 
v.    Roth,    18   App.    D.    C.    547. 

31.  Drexel  v.  Rochester  L.  &  B.  Co.  (Neb.) 
91  N.  W.  254;  Crichton  v.  T\^ebb  Press  Co., 
107  La.  86.  Appeal  not  defeated  if  tran- 
script filed  before  motion  to  dismiss  for  de- 
lay— Johnson  v.  San  Juan  Fish  Co.,  30  Wash. 
162,    70    Pac.    254. 

32.  But  there  must  be  good  reason  for 
the  delay — Bell  v.  Southern  Pac.  R.  Co..  137 
Cal.  77,  69  Pac.  692.  As  may  delay  in  filing 
a  counter  abstract  where  no  prejudice  re- 
sulted— Foley  V.  Cudahy  Packing  Co.  (Iowa) 
93  N.  W.  284.  The  fact  that  a  motion  for  a 
new  trial  was  pending  and  the  bill  of  ex- 
ceptions was  not  settled  is  n,o  excuse  for 
delay  in  filing  the  transcript — Bell  v.  South- 
ern Pac.  R.  Co.,  137  Cal.  77,  69  Pac.  692. 
Nor  is  mistake  as  to  the  court  ■where  the 
record  should  be  filed — Carleton  v.  State 
(Tex.  Cr.  App.)  68  S.  W.  511.  And  an  agree- 
ment with  opposing  counsel  has  been  held 
not  to  excuse  delay  (Keller  v.  Kettner  [Tex. 
Civ.  App.]  67  S.  W.  907)  but  delay  caused 
by  acts  of  the  court  or  of  opposing  coun- 
sel will  be  excused — Anderson  v.  Walker 
(Tex.  Civ.  App.)  70  S.  W.  1003;  District  of 
Columbia  v.  Roth,  18  App.  D.  C.  547.  Af- 
fidavits showing  excuse  for  delay  cannot 
be  considered — Keller  v.  Kettner  (Tex.  Civ. 
App.)  67  S.  W.  907.  Failure  to  procure  a 
return  from  the  municipal  court  in  New 
York  is  not  excused  by  appellant's  conten- 
tion that  he  was  not  responsible  for  the  pay- 
ment of  fees,  which  were  demanded  in  ad- 
vance— King  V.  Norton,  36  Misc.  Rep.  (N. 
Y.)    53. 

33.  The  court  Is  not  limited  to  one  ex- 
tension— Macfarland    v.    Byrnes,    19    App.    D. 

C.  531.  But  the  extension  must  be  grant- 
ed before  the  expiration  of  the  time  lim- 
ited— District   of  Columbia   v.    Roth,   18   App. 

D.  C.   547. 


138 


APPEAL  AND  REVIEW. 


Transmission  of  transcripts  in  two  different  cases  under  one  cover  is  sufiB- 

cient.^* 

D.  Amendment  and  correction^  In  trial  court. — Leave  may  be  granted  to 
apply  to  the  trial  court  for  an  amendment.^^  And  in  some  jurisdictions  no  leave 
is  necessary."  Exceptions  not  actually  taken  at  the  trial  may  be  stricken  out  on 
application  to  the  trial  court.^^ 

In  the  reviewing  court. — In  some  states  the  reviewing  court  will  order  a  cor- 
rection of  the  record.^^  The  appellate  court  will  not  inquire  into  the  genuineness 
of  the  signature  to  the  settled  case.*°  After  the  record  is  made  up,  a  suggestion  of 
diminution  cannot  be  made  except  by  consent ;"  and  an  application  made  after  the 
cause  had  been  pending  two  years  in  the  appellate  court  will  not  be  granted."*- 
A  suggestion  of  error  made  by  counsel  in  argument  will  not  be  regarded.*^  An 
amendment  will  not  be  allowed  to  bring  up  testimony  not  affecting  the  result,"  or 
a  motion  not  decided.*^  The  parties  may  stipulate  for  corrections."  An  admission 
of  error  in  the  answer  to  the  petition  for  correction  cures  the  error.*^  Certiorari 
will  be  allowed  to  bring  up  corrections  made  below.*^ 

E.  Conclusiveness  of  record,  and  effect  of  conflict  therein. — Eeview  is  confined 
to  matters  in  the  record,  in  examining  which  certain  presumptions  are  applied  as 
to  facts  not  shown.*^  The  record  is  conclusive,  and  cannot  be  contradicted,  except 
bv  proceedings  in  due  form  for  an  amendment.^"  And  it  will  prevail  over  the 
original  papers  in  the  transcript,"  and  over  notations  by  the  clerk  on  the  margin  of 


34.  Han  V.   Moore    (Neb.)    92   N.  W.    294. 

35.  Omitted  parts  of  record  in  liquor 
license  case  may  be  brought  up — Persinger 
V.  Miller  (Neb.)  90  N.  W.  242.  In  Ohio  a 
transcript  from  an  administrator's  account- 
ing, if  seasonably  filed  to  perfect  an  ap- 
peal, may  be  amended  by  supplying  omis- 
sions— Falconer  v.  Martin,  66  Ohio  St.   352. 

36.  McKenzie  v.  Murphy,  29  Colo.  485,  68 
Pac.  838.  And  see  Brenham  v.  Rankin  (Tex. 
Civ.  App.)  70  S.  W.  321,  where  it  was  sug- 
gested that  the  signature  to  the  settled  case 
was  not  genuine. 

37.  Birnbaum  v.  May,  170  N.  Y.  314; 
Campbell  v.  Campbell  (Iowa)  91  N.  W.  894. 
And  a  duly  certified  amendment  cures  an 
apparent  error — Carrington  v.  People,  195 
111.  484. 

38.  Lincoln  v.  Sager   (Neb.)   89  N.  W.   617. 

39.  Even  on  its  own  motion — Turman  v. 
Whaley  (Fla.)  32  So.  811.  In  Connecticut 
by  Pub.  Acts,  c.  194,  an  application  must 
first  have  been  made  to  the  trial  court — 
Griswold  v.   Guilford    (Conn.)    52  Atl.   742. 

40.  Time  will  be  allowed  to  apply  be- 
low— Brenham  v.  Rankin  (Tex.  Civ.  App.) 
70   S.   W.    321. 

41.  Ortt  V.  Leonhardt  (Mo.  App.)  68  S. 
W.  577.  Before  the  cause  is  called  for  ar- 
gument— Western  W.  S.  Co.  v.  Kolkmeyer, 
91  Mo.  App.  286.  Sup.  Ct.  Rule  4  provides 
that  no  suggestion  of  diminution  shall  be 
made  after  joinder  in  error — Hoffman  v. 
Loudon  (Mo.  App.)   70  S.  W.  162. 

43.  Carnahan  v.  Connolly  (Colo.  App.)  68 
Pac.  836.  An  application  made  after  deci- 
sion on  appeal  was  granted  in  Tennessee — 
Hinton  v.  Sun  Life  Ins.  Co.  (Tenn.)  72  S. 
W.    118. 

43.  Oskaloosa  Cigar  Co.  v.  Iowa  Cent.  R. 
Co.    (Iowa)    89   N.    W.    1065. 

44.  Hyde  v.  Mendel   (Conn.)    52  Atl.  744. 

45.  Sullivan  v.  King  (Tex.  Civ.  App.)  72 
S.   W.   207. 


46.  Camp  V.   Wabash   R.   Co.,    94   Mo.   App. 

272. 

47.  Hinton  v.  Sun  Life  Ins.  Co.  (Tenn.)  72 
S.   W.   118. 

48.  Johnston  v.  Arrendale  (Tex.  Civ.  App.) 
71  S.  W.   44. 

49.  See  post,  §  13   "Restriction  to  record." 

50.  State  v.  Berger,  92  Mo.  App.  631; 
Davies  v.  Cheadle  (Wash.)  71  Pac.  728; 
Purple  V.  Union  Pac.  R.  Co.  (C.  C.  A.)  114 
Fed.  123;  New  York,  N.  H.  &  H.  R.  Co.  v. 
Hungerford  (Conn.)  52  Atl.  487;  Washington 
Liquor  Co.  v.  Alladio  Cafe  Co.,  28  Wash.  176, 
68  Pac.  444;  Turner  v.  Adams.  75  Conn.  28; 
Board  of  Com'rs  v.  Shaffner  (Wyo.)  68  Pac. 
14;  Weeks  v.  Texas  Midland  R.  Co.  (Tex. 
Civ.  App.)  67  S.  W.  1071;  Justice  v.  Gallert, 
131  N.  C.  393.  And  this  applies  to  recitals  in 
an  order  contained  in  the  record  (Brown  v. 
Schintz,  98  111.  App.  452)  and  to  recitals  in  an 
order  of  facts  shown  on  the  application  there- 
for— Allen  V.  Richardson  (S.  D.)  92  N.  W. 
1075.  And  to  amendments  to  the  record 
— Carrington  v.  People,  195  111.   484. 

51.  Signing  of  the  verdict — Seal  Lock  Co. 
V  Chicago  Mfg.  Co.,  98  111.  App.  637.  Time 
of  filing  papers — Central  Coal  Co.  v.  Texas 
Produce  Co.,  70  Ark.  479.  References  to 
depositions  which  do  not  appear  will  not 
prevail  over  a  statement  that  all  the  evi- 
dence is  Included — Louisville  &  N.  R.  Co. 
V.  Hull,  24  Ky.  Law  Rep.  375.  But  a  jus- 
tice's return  as  to  the  date  when  his  judg- 
ment was  rendered  was  held  to  prevail  over 
a  statement  in  the  case  on  appeal  from 
the  intermediate  court — Erdman  v.  Upham, 
70  App.  Div.  (N.  Y.)  315.  Facts  shown  in 
the  record  on  which  appellate  jurisdiction 
rests  prevail  over  findings — Schreiner  v. 
Emel,  26  Wash.  555,  67  Pac.  228;  and  under 
the  Illinois  appellate  court  act  unless  the 
record  shows  facts  the  pleadings  cannot  be 
examined — Pick  v.  Mut.  Life  Ins.  Co.,  192  111. 
157;  Murray  Iron  Wks.  v.  De  Kalb  Elec.  Co., 
200    111.    186. 


PROCEEDINGS  BEFORE  HEARING. 


139 


the  minute  book/'*-     The  agreed  statement  of  facts  will  control  the  bill  of  ex- 
ceptions.^^ 

§  11.  Practice  and  proceedings  in  appellate  court  before  hearing.  A.  Joint 
and  several  appeals;  consolidation;  severance. — It  will  be  supposed  that  both  de- 
fendants joined  in  an  appeal  from  an  order  affecting  them  alike,  and  wherein 
they  tried  their  claims  together,  represented  by  the  same  counsel.^*  Appeal  from 
judgment,  also  from  denial  of  a  new  trial,  is  not  double;''^  nor  is  one  from  a  mo- 
tion and  a  petition  for  new  trial.^^  Several  feigned  issues  with  different  plaintiffs 
should  be  severed.^'^  The  parties  cannot,  without  action  of  court,  effect  a  con- 
solidation by  merely  treating  actions  so,^^  and  the  trial  court  cannot  do  so  after 
judgment  ;^^  hence  causes  tried  together  by  agreement  cannot  be  joined  in  a  single 
appeal.^"  Appeals  from  separate  judgments  are  not  consolidated  merely  because 
the  cases  were  tried  together  by  order  of  the  court  below ;  hence  the  parties  cannot 
join.®^  If  an  erroneous  consolidation  be  attempted,  the  examination  will  be  limited 
to  the  original  cause.®^ 

B.  Original  and  cross  proceedings. — One  who  is  not  a  party  cannot  bring  a 
cross  bill  of  exceptions."^ 

An  original  proceeding  is  necessary  to  institute  review  proceedings;  hence  a 
''cross  bill  of  exceptions"  will  not  lie  to  review  the  omission  of  the  court  to  act  on 
a  petition  of  intervention;"*  but,  if  another  party  has  appealed,  a  cross  proceeding  is 
generally  necessary  if  an  appellee  or  respondent  would  review  errors,"^  and  a 
cross  proceeding  in  error,  and  not  an  independent  proceeding,  should  be  brought 
to  obtain  affirmative  relief.""  A  cross  bill  will  not  be  treated  as  a  main  bill  unless 
filed  in  time  for  that  purpose."'^ 

C.  Amendments  of  parties. — If  an  appeal  be  taken  in  the  names  of  parties, 
one  of  whom  is  already  dead,  it  may  be  amended  to  show  that  the  survivors  take 
it."*  If  administration  is  unnecessary,  and  the  heirs  are  brought  in,  failure  to 
substitute  an  administrator  of  a  deceased  party  does  not  vitiate  jurisdiction."® 
On  the  death  of  a  ward  pending  appeal,  administrators  may  be  substituted  for 
guardians.^"  Substitutions  should  be  promptly  made.^^  A  stipulation  that  the  ad- 
ministrator shall  continue  the  appeal  is  equivalent  to  a  revival  in  his  name.'^'* 
After  revival  in  the  trial  court,  it  need  not  be  again  done  in  the  reviewing  court.'^' 

D.  Calendars;  trial  docJcets;  terms. — The  term  is  usually  determined  under 
statutes,  by  the  time  when  the  appeal  or  review  proceeding  is  perfected  or  reaches 


52.  In  re  Pichoir's  Estate  (Cal.)  70  Pac. 
214. 

53.  Gulf,  C.  &  S.  F.  R.  Co.  v.  Moore  (Tex. 
Civ.  App.)  68  S.  W.  559.  But  see  Ellis  v. 
Lee  Bow  (Tex.  Civ.  App.)  71  S.  W.  576. 
where  it  was  said  that  in  case  of  conflict 
between  the  bill  and  the  statement  of  facts 
the  presumption  against  the  existence  of 
error   obtains. 

54.  Charles  D.  Koier  Co.  v.  O'Brien,  202 
Pa.   153. 

55.  Kountz  v.  Kountz,  15  S.  D.  66. 

56.  German  Nat.  Bank  v.  Edwards,  63 
Neb.    604. 

57.  Kimmel  v.  Johnson,  18  Pa.  Super.  Ct. 
429. 

58.  Hidy  V.   Hanson,   116   Iowa,    8. 

59.  Prinz  v.  Moses    (Kan.)    66  Pac.   1009. 

60.  Judgment  on  demurrer  entered  sep- 
arately in  each — Brown  v.  Louisville  &  N. 
R.    Co.    (Ga.)    43    S.    B.    498. 

61.  Cases  were  consolidated  and  separate 
Judg-ment  of  nonsuit  entered — Center  v.  R. 
N.  Fickett  Paper  Co.    (Ga.)    43  S.  E.   498. 


62.  Prinz  v.  Moses    (Kan.)    66   Pac.  1009. 

63.  Unsuccessful  petitioner  to  intervene 
— Turnbull  v.   Foster    (Ga.)    43   S.  E.   42. 

64.  Turnbull  v.  Foster  (Ga.)  43  S.  E.  42. 

65.  See  post,  this  section,  "Forming  Issues, 
Cross-Errors." 

66.  Scully  V.  Smith   (Kan.)   71  Pac.  519. 

67.  Turnbull  v.  Foster  (Ga.)   43  S.  E.  42. 

68.  Death  after  judgment  before  appeal 
— Griswold    v.    Thornton,    129    Ala.    454. 

69.  Applied  where  guardian  died  pend- 
ing appeal  from  settlement  of  his  account — 
Magness  v.  Berry  (Tex.  Civ.  App.)  69  S.  W. 
987. 

70.  If  the  guardians  have  fully  account- 
ed— Brown  v.  Lambe  (Iowa)    93  N.  W.   486. 

71.  Delay  of  six  months  after  expiration 
of  the  year  to  bring  In  the  successor  of  a 
trustee  party  held  fatal — Hays  v.  Pugh,  158 
Ind.   500. 

72.  Crawford  v.  Chicago,  R.  I.  &  P.  R. 
Co.    (Mo.)    66  S.  W.   350. 

73.  Crawford  v.  Chicago,  R.  I.  &  P.  R. 
Co.    (Mo.)    66  S.  W.  350. 


140 


APPEAL  AND  REVIEW. 


an  issue  of  error,  as  is  shown  in  the  footnote;'*  but  it  may  depend  on  the  return 
day  of  the  appeal  or  writ  of  error.  Special  cases  which  it  is  prescribed  shall  be 
heard  and  determined  as  speedily  as  possible  may  be  advanced  and  docketed,  though 
not  filed  within  requisite  time  to  go  on  the  docket.'^" 

E.  Forming  issues;  pleading,  assigjiing,  and  specifying  error. — The  term  "as- 
signment of  errors"  is  now  used  in  two  general  senses:  First,  as  indicating  aver- 
ments made  to  obtain  a  writ  of  error  or  allowance  of  an  appeal ;  second,  as  refer- 
ring to  specifications,  sometimes  with  the  argument  or  brief,  but  often  separate 
therefrom,  made  to  advise  and  inform  the  reviewing  court  what  errors  are  relied 
on  to  work  a  reversal.  In  many  states  a  review  is  of  right,  and  only  as  used  in  the 
latter  sense  is  there  any  assignment  of  errors,  the  appeal  being  a  statutory  one 
instituted  by  a  notice  or  other  monitory  act.  The  procedure  by  petition  containing 
averments  of  error  often  requires  that,  in  addition,  the  "briefs"  shall  specify  the 
particular  errors  to  which  argument  is  directed.  These  distinctions  should  be  noted 
carefully.  It  is  the  object  of  assignments  in  any  case  to  define  and  develop  the 
issues  on  review.'^^  The  assignment  or  statement  of  errors,  as  an  act  or  proceeding 
operating  to  bring  up  the  cause,  is  elsewhere  treated.''^ 

1.  Proper  parties  to  assign  errors. — The  objector  must  have  an  appealable  inter- 
est.''^ Errors  cannot  be  urged  which  affect  other  parties,  but  not  the  objector;" 
or  which  are  favorable  to  him^°  or  his  co-defendant;^^  or  which  his  position  and 
the  case  require  him  to  uphold,^^  as  where  he  invites  or  assents  to  the  action  of  the 
court.^^    He  cannot  complain  of  an  erroneous  submission  which  he  requested,  or  of 


74.  In  Kentucky  (Civ.  Code.  Pr.  §§  738, 
753),  an  appeal  does  not  come  on  at  a  term 
unless  the  transcript  is  filed  twenty  days 
before  the  beginning  of  the  term,  unless 
the  parties  otherwise  consent — Meacham  v. 
Democratic  Com.,   24  Ky.  Law  Rep.  1340. 

75.  Election  cases  under  Act  of  1900 — 
Graham  v.  Graham,  24  Ky.  Law  Rep.  20. 

76.  Consult  general  treatises  on  practice; 
also  the  various  statutes. 

"Petitions  in  error"  contain  averments  of 
errors  which  limit  the  review.  A  correspond- 
ing function  is  served  by  what  is  elsewhere 
called  the  "assignment  of  errors." 

77.  See  ante,  §  6. — "Application,  etc..  As- 
signments and  Statements." 

Such  function  is  often  performed  by  a 
paper  separate  from  the  specifying  aver- 
ments. 

78.  See  ante,  §  3a,  and  the  cases  there 
cited. 

79.  French  v.  Commercial  Nat.  Bank,  199 
111.  213;  Richards  v.  Minster  (Tex.  Civ.  App.) 
70  S  "W.  98:  Wm.  E.  Peck  &  Co.  v.  Kansas 
City  Roofing  Co.  (Mo.  App.)  70  S.  W.  169; 
McCardle  v.  Aultman  Co.  (Ind.  App.)  66  N. 
E.  507;  McDavid  v.  McLean,  104  111.  App.  627. 
Allegations  against  a  dismissed  defendant 
which  were  multifarious  as  to  others  now 
objecting — Missouri  Broom  Mfg.  Co.  v.  Guy- 
mon  (C.  C.  A.)  115  Fed.  112.  Failure  to 
separatelv  find  as  against  co-defendant — 
Dobbs  v.>urington.  136  Cal.  70,  68  Pac.  323. 
Failure  to  serve  a  co-defendant — Storey  v. 
Kerr  (Neb.)  89  N.  TV.  601.  Debtor's  assignee 
cannot  complain  of  errors  between  creditor 
and  garnishee — Norton  v.  Maddox  (Tex.  Civ. 
App.)  66  S.  W.  319.  Objector's  claim  of  in- 
terest had  already  been  decided  adversely 
by  the  court — Scott  v.  Farmers'  &  Merchants' 
Nat.  Bank  (Tex.  Civ.  App.)  66  S.  W.  485.  Rul- 
ing correct  as  to  defendant  husband  and  not 
affecting  wife  is  assignable  by  neither — 
Rogers  V.  Hopper,   94  Mo.  App.   437.    Defend- 


ant cannot  complain  of  errors  between 
plaintiff  and  intervener — People  v.  Camp- 
bell  (Cal.)    70  Pac.   918. 

SO.  See  "Harmless  Error" — Fitzgerald  v. 
Alma  Furniture  Co.,  131  N.  C.  636;  Citizens' 
Bank  v.  Rung  Furniture  Co.  (N.  T.)  76  App. 
Div.  471;  Garretson  v.  Kinkead  (Iowa)  92 
N.  W.  55;  Kinney  v.  Murray  (Mo.)  71  S.  W. 
197,  Committee  of  habitual  drunkard  can- 
not complain  that  an  order  of  release  was 
probationary  instead  of  absolute — In  re  Lar- 
ner,  79  App.  Div.  (N.  Y.)  134.  Objector  had 
requested  a  more  unfavorable  instruction 
than  the  one  objected  to — Padelford  v.  Eagle 
Grove   (Iowa)   91  N.  W.   899. 

81.  George  v.  St.  Joseph  (Mo.  App.)  71  S. 
W.  110;  Cleland  v.  Anderson  (Neb.)  92  N.  W. 
306. 

82.  Trustees  v.  Hoffman,  95  Mo.  App.  488; 
Krup  v.  Corley,  Id.  640;  Oneill  v.  Blase,  94 
Mo.  App.  648;  Sappington  v.  C.  &  A.  R.  Co.. 
95  Mo.  App.  387;  Krebs  v.  Zumwalt,  91  Mo. 
App.   404. 

Trial  on  a  particular  theory — Ryan  v.  Pa- 
cific Axle  Co.,  136  Cal.  xx.,  68  Pac.  498.  Re- 
fused request  substantially  covered — Missou- 
ri,  K.   &   T.   R.   Co.  V.   Eyer    (Tex.   Civ.   App.) 

69  S.   W.   453. 

S3.  Dixon  v.  McDonnell,  92  Mo.  App.  479; 
City  of  San  Antonio  v.  Potter  (Tex.  Civ.  App.) 
71  S.  W.  764;  Galveston,  etc.,  R.  Co.  v.  Baum- 
garten  (Tex.  Civ.  App.)  72  S.  W.  78;  Par- 
kins v.  Mo.  Pac.  R.  Co.  (Neb.)  93  N.  W.  197; 
Gregg    V.    Roaring    Springs    Co.     (Mo.    App.) 

70  S.  W.  920;  MacDonald  v.  Tittmann  (Mo. 
App.)  70  S.  W.  502;  Summers  v.  Metropolitan 
Life  Ins.  Co.,  90  Mo.  App.  691;  Eberly  v.  Chi- 
cago, B.  &  Q.  R.  Co.  (Mo.  App.)  70  S.  W. 
381. 

Correct  ruling  on  but  erroneous  grounds 
for  which  he  was  responsible — McDonald  v. 
People,    29   Colo.   503,   69   Pac.   703. 

Refusal  to  direct  verdict  when  he  proffered 


ASSIGNMENT  OF  ERRORS. 


141 


its  consequences;^*  but  he  does  not  assail  his  own  act  by  merely  attacking  the 


instructions — Hopkins  v.  Modern  Woodmen, 
94  Mo.  App.  402. 

Findings  on  a  point  agreed  to  be  imma- 
terial— Kent  V.  Richardson  (Idaho)  71  Pac. 
117. 

Assent  to  judge's  entering  jury  room — 
Griffith  V.  Mosley,  70  Ark.  244.  Trial  in  ab- 
sence of  one  juror — Rehm  v.  Halverson,  197 
111.  378.  Proceeding  with  trial  after  refusal 
to  dismiss  and  not  renewing  motion — Green- 
span V.  Newman  (N.  Y.)  37  Misc.  784.  In- 
troducing evidence  after  being  refused  a  di- 
rected verdict — Greenfield  v.  Johnson  (Ind. 
App.)  65  N.  E.  542.  Ruling  to  which  he 
assented  by  proving  in  accordance — Pitts- 
burg, etc.,  R.  Co.  V.  Crothersville  (Ind.)  64 
N.  E.  914.  Instrument  admitted  by  agree- 
ment without  proof  of  binding  execution  by 
agent — Kaufman  v.  Simon,  80  Miss.  189.  De- 
fending suit  to  quiet  title  without  object- 
ing to  plaintiff's  want  of  possession — Bates 
v.  Drake,  28  Wash.  447,  68  Pac.  961.  Fail- 
ure to  correct  a  submitted  draft  of  a  hypo- 
thetical question  afterwards  put  by  and  ad- 
mitted for  the  adverse  party — Allen  v.  Voje, 
114  Wis.  1.  Cannot  assail  finality  of  judg- 
ment because  of  subsequent  amendment  of 
findings  on  consent  and  after  he  had  ap- 
pealed— United  States  v.  St.  Louis  Transp. 
Co.,   184  U.  S.   247,  46  Law.  Ed.  520. 

Essential  facts  conceded  to  have  been 
proven — Sexton  v.  Union  Stock  Yds.  Co.,  200 
111.  244;  People  v.  Smith,  201  111.  454.  Fail- 
ure to  explicity  allege  a  fact  tacitly  admit- 
ted by  the  theory  of  trial — McHale  v.  Ma- 
loney    (Neb.)    93   N.   W.    677. 

Refusing  to  take  a  continuance  granted 
on  allowing  adversary  to  reopen  and  amend 
— Jaroszewski  v.  Allen   (Iowa)    91  N.  W.   941. 

Erroneous  evidence  introduced  by  himself 
— Continental  Nat.  Bank  v.  First  Nat.  Bank, 
108  Tenn.  374;  Marsden  Co.  v.  Bullitt,  24  Ky. 
Law  Rep.  1697;  or  developed  by  him — Early's 
Adm'r  V.  Louisville,  etc.,  R.  Co.,  24  Ky.  Law 
Rep.  1807;  Jarrell  v.  Crow  (Tex.  Civ.  App.) 
71  S.  W.  397;  on  his  own  cross-examination 
— O'Banion  v.  Mo.  Pac.  R.  Co.,  65  Kan.  352, 
69  Pac.  353;  Davis  v.  Streeter  (Vt.)  54  Atl. 
185;  Hicks  v.  Galveston,  etc.,  R.  Co.  (Tex. 
Civ.  App.)  71  S.  W.  322;  or  the  repetition 
of  it — Tufts  V.  Morris.  92  Mo.  App.  389.  Ad- 
mission of  a  mutilated  instrument  afterward 
introduced  by  objector — Pope  v.  Anthony 
(Tex.  Civ.  App.)  68  S.  W.  521.  Discrediting 
a  witness  whom  the  objector  also  called — 
Hardin  v.  Jones  (Tex.  Civ.  App.)  68  S.  W.  836. 

Want  of  evidence  caused  by  his  own  er- 
roneous objection — Sachs  v.  American  Surety 
Co.  (N.  Y.)  72  App.  Div.  60;  Hagey  v.  Schroe- 
der   (Ind.  App.)    65  N.   E.   598. 

Exclusion  of  evidence  on  his  own  objec- 
tion— Harp  V.  Harp,  136  Cal.  421,  69  Pac.  28. 
Exclusion  of  what  related  to  a  different 
issue  than  the  sole  one  submitted  at  ob- 
jector's request — Thompson  v.  Rosenstein 
(Tex.  Civ.  App.)  67  S.  W.  439.  Exclusion 
from  jury  of  evidence  on  one  cause  of  ac- 
tion as  to  which  defendant  procured  a 
charge  in  his  own  favor — Murphy  v.  St.  Louis 
Transit  Co.  (Mo.  App.)  70  S.  W.  159.  Mode 
of  proof  due  to  objector's  evidence — Seattle 
&  M.  R.  Co.  V.  Roeder,  30  Wash.  244,  70  Pac. 
498.  Answer  which  may  have  been  a  con- 
clusion was  not  followed  by  cross-examina- 
tion to  develop  that  objection — Shaefer  v. 
Mo.  Pac.  R.  Co.   (Mo.  App.)   72  S.  W.  154. 


Instructions  requested  or  like  those  re- 
quested by  him  or  containing  similar  lan- 
guage— Stowers  v.  Singer,  24  Ky.  Law  Rep. 
395;  Gregg  v.  Roaring  Springs  Co.  (Mo. 
App.)  70  S.  W.  920;  Little  Dorrit  G.  M.  Co. 
V.  Arapahoe  Co.  (Colo.)  71  Pac.  389;  Weigley 
V.  Kneeland,  172  N.  Y.  625;  Dady  v.  Condit, 
104  111.  App.  507;  Strother  v.  De  Witt  (Mo. 
App.)  71  S.  W.  1129;  Farmers'  Ins.  Co.  v. 
Cole  (Neb.)  93  N.  W.  730;  Davidson  v.  Chi- 
cago &  A.  R.  Co.  (Mo.  App.)  71  S.  W.  1069; 
Kansas  City  v.  Madsen,  93  Mo.  App.  143; 
Republic  Iron  Works  v.  Gregg,  24  Ky.  Law 
Rep.  1627;  Missouri,  K.  &  T.  R.  Co.  v.  Eyer 
(Tex.)  70  S.  W.  529;  Sibley  Warehouse  Co. 
V.  Durand  &  Kasper  Co..  200  111.  354;  Murphy 
V.  Century  Bldg.  Co.,  90  Mo.  App.  621;  Hunt 
V.  Searcy,  167  Mo.  158;  Buck  v.  Hogeboom 
(Neb.)  90  N.  W.  635;  Clapp  v.  Royer  (Tex. 
Civ.  App.)  67  S.  W.  345;  Beaver  v.  Eagle 
Grove,  116  Iowa,  485;  Gulf,  etc..  R.  Co.  v. 
Shelton  (Tex.  Civ.  App.)  69  S.  W.  653;  Frost 
Mfg.  Co.  v.  Smith,  98  111.  App.  308;  Rock 
Island  Sash  Works  v.  Pohlman,  99  111.  App. 
670;  Galveston,  etc.,  R.  Co.  v.  Jenkins  (Tex. 
Civ.  App.)  69  S.  W.  233;  Denver  R.  Co.  v. 
Peterson  (Colo.)  69  Pac.  578;  Ryans  v.  Hos- 
pes.  167  Mo.  342;  Galveston,  etc.,  R.  Co.  v. 
Sherwood  (Tex.  Civ.  App.)  67  S.  W.  776; 
West  Chicago  R.  Co.  v.  Buckley,  200  111.  260; 
Ward  v.  Bass  (Ind.  T.)  69  S.  W.  879;  Spring- 
field R.  Co.  V.  Puntenney,  200  111.  9;  Slack 
V.  Harris,  200  111.  96;  or  covered  by  his  own — 
Standard  Starch  Co.  v.  McMullen,  100  111. 
App.  82;  Krejci  v.  C.  &  N.  W.  R.  Co.  (Iowa) 
90  N.  W.  70S;  even  though  conflicting — Roe 
V.  Bank,  167  Mo.  406.  But  if  it  is  modified 
and  given  he  may  object — Maxey  v.  Metro- 
politan St.   Ry.  Co.,   95  Mo.  App.   303. 

Error  in  giving  one  of  two  inconsistent 
requests — Chicago  House  Wrecking  Co.  v. 
Stewart  Lumber  Co.  (Neb.)  92  N.  W.  1009. 
His  request  was  refused  but  the  same  issue 
was  submitted — Kennard  v.  Grossman  (Neb.) 
89  N.  W.  1025.  Failure  to  charge  on  a  point 
which  he  had  insisted  was  covered  by  the 
general  charge — Young  v.  Illinois  Cent.  R. 
Co.,  24  Ky.  Law  Rep.  789.  Failure  to  in- 
struct on  a  theory  abandoned  and  departed 
from  in  making  proof — Peacock  v.  Gleason 
(Iowa)  90  N.  W.  610.  Failure  to  explain 
words  like  he  requested — State  v.  Fidelity 
Co.,  94  Mo.  App.  184.  Submission  of  issues 
developed  by  objector — Houston  &  T.  C.  R. 
Co.  V.  Trammell  (Tex.  Civ.  App.)  68  S.  W. 
716.  Failure  to  instruct  more  strongly  than 
requested  instruction — Bishop  v.  People,  200 
111.    33. 

Wrong  Theory — Pantall  v.  Rochester  C  & 
I.  Co.  (Pa.)  53  Atl.  751.  As  where  he  intro- 
duced evidence  consistent  only  with  the  the- 
ory on  which  the  case  was  erroneously  tried 
— Hollister  v.  Donahoe  (S.  D.)  92  N.  W.  12. 
Trying  case  on  a  theory  which  excluded  a 
presumption  of  negligence  from' the  charac- 
ter of  the  accident — Galligan  v.  Old  Colony 
St.  R.  Co.,  182  Mass.  211.  Advancing  theory 
wliich  resulted  in  instruction  of  incorrect 
measure  of  damages — Heiscli  v.  Bell  (N.  M.) 
70  Pac.  572. 

84.  St.  Louis,  etc.,  R.  Co.  v.  Jacobs,  70 
Ark.  401;  James  Clark  Co.  v.  Cumberland, 
95  Md.  468;  Miles  v.  Walker  (Neb.)  92  N.  W. 
1014.  Procuring  submission  of  negligence 
precludes  question  that  It  existed  as  matter 
of  law — Chicago,  etc.,  R.  Co.  v.  Schmelling, 


142 


APPEAL  AXD  RE^ 


c. 


p2        ^       .L4AjC4r       6S»S<« 

Xor  can  cr 
:o  errors  whi; 
"ja  of  an  r 
j.e  pleadin. 


rdcnlar  relief  warrant  ft 

r~t   remedy  to  which  his 

-~:    capacities  object  in 

:  ii^   :  iiuaL"    A  party 

'-  liable,"  but 

L  int  of  their 


■^lit  into  t^.e  reviewing  court,* 


ari.  r: 


or  jurisdietior 

Aside  frcz- 
been  properlT  ^ 
except,  lest  hr 
gp  imappealec .  - 
ri"}it  to  a  renir 
was  caused  b;       _i :.- : : 

2.  Cross  :  — 

errors  only  wi.  _  ..: 
only  when  he  . 
by  an  appeUer 
cro3s  errors  in  order  to 


?,"  win  not  be  heard. 
i?  necessary  that  the  qnestion  shall  hare 
1  fbe  party  mnst  ardinanly  objert  and 
•    By  allowing  a  preceding  order  to 

r.i_r  .:  ~2v  be  waiTcd.^    The  qnestion  of 

;'::  r.v.  ::'  :lir  failnre  to  daim  such  remedy 


ded,  or  cro^  a^ 

_   :  TTTor  ind^iendei 

11.   1  leaL**   A  prev: 

bring  np  errors  in  the  plsir:!: 


bnt  can  nrge 

rrrors,"  and  sometimes 

Th~  may  be  assigned 

i-i^iiiant  most  flssagn 

ridings;*  but  he  cannot 


197  m.  CIS.  Improper  anowance  of  damages 
— Stephens  t.  Qnigley  (Ind.  T.)  «»  S-  "W. 
820l  Improper  direction  at  his  r«inest  to 
BpeclaUx  find — Steele  ▼.  Johnson  CMo.  App.) 
C9  S.  TIT.  1065;  Hayes  ▼.  Bunch.  91  Mo.  App. 
4«I. 

85.  Benton  C3ol  Bank  ▼.  Boddlcker  (Iowa) 
99  N.  IC  8SS. 

<a«.     Bnt    libelant    cannot    make    technics.. 

.-  ;    .-     ■     --— ;-t    -'   rr?:;?3ce  in  di- 

—  1    .     ;  Z : .  r : : ;       :  ^  Pa.  Super. 


So.. 

531. 

&7. 


D.    C. 


£Tison  T.   Slat^    ("ex. 

— .er     and     coe.".7    :: 
.:r"s    lien   suit    ^ 
^     Foundry   C ; 
ij»d  abut:  :  r 
2    ^efec::    T 


m.   91. 

9&,    In  snch  ease 
peal — ante.  S  1.  3. 
(from   writ   of   at'.~ 
by  a  defaulted  par-.: 
m.  S4«. 

9S.     See  the  art:: 


ASSIGNMENT  OF  ERRORS. 


143 


assign  the  dismissal  of  his  own  cross  bill  unless  there  has  been  an  appeal  from  it.'* 
Assuming  an  office  does  not  waive  the  right  to  assign  errors  against  ousted  party's 
appeal  in  quo  warranto.' 

3.  Specifications  and  avermenis. — Generally  speaking,  errors  must  be  speci- 
fied* by  sufficient  assignments,^  or  equivalent  specifications  in  other  papers,®  subject 
to  a  usual  exception  in  favor  of  fundamental  errors  or  such  as  are  plainly  ap- 
parent on  the  face  of  the  record.^  If  it  chooses,  the  court  may  hear  errors  not 
specified.^  Advanced  causes  are  sometimes  made  an  exception.^  Especially  will 
an  assignment  of  errors  in  the  federal  courts  be  'gnored  which  violates  the  rule 
requiring  each  error  to  be  specified,  when  the  brief  also  fails  to  refer  by  page  to  the 
record  where  support  for  such  objections  is  to  be  found.^°  Denial  of  a  change  of 
venue  is  an  error  of  law  which  must  be  assigned,  though  it  was  in  an  equity 
action."  Assignment  in  a  court  of  primary  appeal  is  not  required  of  an  appellee 
in  order  to  save  questions  for  the  event  of  a  further  appeal." 

Error  must  be  positively  averred.^^  Mere  statements  of  reasons  for  a  new  trial 
are  insufficient."  The  appellant  must,  in  his  brief,  controvert  appellee's  state- 
ments denying  facts  material  to  the  cause  which  do  not  affirmatively  appear  in  the 
record.^^ 

The  rulings  or  errors  must  be  identifiable  with  reasonable  certainty.^®     The 


2. 

596. 

3. 
918. 

4. 

310; 


Vanderpoel    v.     Knight,     102     111.    App. 
People  V.  Campbell,  138  Cal.  11,  70  Pac. 


Aetna  Life  Ins.  Co.  v.  Sanford,  197  111. 
Kelly  V.  Strouse  (Ga.)  43  S.  E.  2S0; 
Lambert  v.  Marcuse,  137  Cal.  44,  69  Pac.  620; 
Medano  Ditch  Co.  v.  Adams,  29  Colo.  317,  68 
Pac.  431;  Herriman  Irr.  Co.  v.  Keel,  25  Utah, 
96,  69  Pac.  719. 

In  petition  in  error — Bosserman  v.  Lar- 
son (Neb.)  93  N.  W.  411;  Kennard  v.  Gross- 
man (Neb.)  89  N.  W.  1025.  Errors  which 
would  otherwise  be  presented  on  motion  for 
new  trial  must  be  specifically  alleged — 
Greg-ory  v.  Leavitt  (Neb.)  89  N.  W.  764; 
Gandy  v.  Cummins  (Neb.)  89  N.  W.  777.  Pe- 
tition in  error  must  aver  error  in  ruling 
on  motion  for  new  trial — Orcutt  v.  McNair 
(Neb.)    92   N.   W.    200. 

On  appeal — Cessna  v.  Benedict,  98  111.  App. 
440. 

Arugments  on  rulings  not  assigned  will 
be  ignored — Hoyt  v.  Chicago,  M.  &  St.  P.  R. 
Co.  (Iowa)  90  N.  "W.  724.  Reasons  for  appeal 
must  be  set  out — Stevens  v.  Stevens,  71  N. 
H.  579.  Rulings  on  demurrer — Harris  v.  Nye 
(Neb.)  91  N.  W.  250.  Objection  to  striking 
of  evidence  must  be  assigned — Mahoney  v. 
People,   98  111.   App.    241;    Cessna  v.   Benedict, 

98  111.    App.    440;    Pennsylvania   Co.    v.    Bond, 

99  111.  App.  535.  Sufficiency  of  evidence  must 
be  assigned — Nordin  v.  Berner,  15  S.  D.  611. 
Objection  to  instructions  must  be  assigned — 
Western  Union  Tel.  Co.  v.  Hays  (Tex.  Civ. 
App.)  67  S.  W.  1072;  Braeggar  v.  Oregon  S. 
L.  R.  Co.,  24  Utah,  391,  68  Pac.  140.  Refusal 
of  instructions  must  be  assigned — Sinclair 
V.  Waddill,  200  111.  17.  Amount  of  a  verdict 
for  personal  injuries  must  be  assigned — 
Palmer  v  Kinloch  Tel.  Co.,  91  Mo.  App.  106. 
Election  cases  being  appealable  as  civil  cases 
require  assignment  of  error — Brumback  v. 
McAuley  (Mo.  App.)  68  S.  "W.  240. 

5.  Chichester  v.  New  Hampshire  Fire  Ins. 
Co.,  74  Conn.  510. 

6.  Rulings  not  appearing  erroneous  by 
bill  of  exceptions  should  be  assigned — South- 


erland  v.  Sandlin  (Fla.)  32  So.  786.  Either 
in  abstract  of  assignment  or  at  least  in  argu- 
ment— Hanon  v.  Jones,  100  111.  App.  583. 
Either  the  record  or  assignments  must  dis- 
close objection  to  sufficiency  of  evidence  in 
support  of  findings — State  v.  Pierre.  15  S.  D. 
559. 

7.  United  States  v.  Lee  Yen  Tal  (C.  C.  A.) 
113  Fed.  465.  Absence  of  jurisdictional 
amount  in  controversy  need  not  be — Land 
Mortg.  Bank  v.  Voss  (Tex.  Civ.  App.)  68  S 
W.  732.  Refusal  to  submit  question  wheth- 
er notes  in  suit  were  obtained  bv  threats 
held  not  fundamental,  hence  mus't  be  as- 
signed— Clapp  V.  Royer  (Tex.  Civ.  App.)  6? 
S.  W.  345.  Deficiencies  In  pleadings  must  be 
specially  assigned  unless  they  make  the 
judgment  palpably  erroneous — New  York,  N. 
H.  &  H.  R.  Co.  v.  Hungerford  (Conn.)  52  Atl 
487.  Wrong  instruction — Harper  v.  Dodd 
(Tex.  Civ.  App.)  70  S.  W.  223. 

8.  Not  error  to  hear  matters  not  specified 
but  which  parties  argue— Lynch  v.  Syracuse 
L.  &  B.  R.  Co.,  73  App.  Div.   (N.  Y.)   95. 

9.  Not  necessary  in  Texas  where  cause  is 
advanced  on  a  suggestion  of  dilatory  appeal 
— Continental  F.  Ass'n  v.  Bearden  (Tex  Civ 
App.)   69  S.  W.  982. 

10.  Mitchell  Transp.  Co.  v.  Green  (C.  C. 
A.)   120  Fed.  49. 

11.  Lessenich  v.  Sellers  (Iowa)  93  N.  W 
348. 

12.  Iroquois  Furnace  Co.  v.  Elphicke,  200 
111.  411. 

13.  "Excepted,  excepts,  assigned  and  now 
assigns"  error,  to  a  ruling  recited  in  bill 
of  exceptions  sufficient — Johnson  v.  Porter 
115  Ga.   401. 

14.  Standish  v.  Bridgewater  (Ind.)  65  N 
E.   189. 

15.  Replevin  suit  under  a  chattel  mort- 
gage for  a  debt  not  yet  due  appellee  claim- 
ing in  his  brief  that  there  was  no  proof  ol 
breach  of  condition  or  identity  of  the  prop- 
erty taken — Hart  v.  Peet  (Colo.  App.)  71  Pac 
400. 

16.  Ketelman  v.  Chicago  Brush  Co.  (Neb  ) 
91   N.  W.   282. 


141 


APPEAL  AND  REVIEW. 


objectionable  part  of  the  record  must  be  indicated.^'  General  statements  are  in- 
gnfficient.^*  If  the  bill  of  exceptions  recites  gronnds  for  a  riding,  an  assignment 
mar  be  <n)od  by  merelT  referring  to  it.**  In  Texas  the  a^;;-nment  mnst  contain  a 
l^al  proposition,  or  one  must  be  stated  nnder  ir,-"  and  most  be  followed  by  an 
e^lanatorr  statement."* 

The  alignment  must  be  as  broad  as  the  objections  urged,**  and  must  conform 
to  the  objections  urged  ;^  and  a  general  objection  \dll  not  raise  special  matters.** 

Distinct  errors  may  not  be  comhined  in  one  assignment,**  or  in  explanatory 


17.  Gv.  App.  Rtde  25 — Swift  ▼.  Bmce 
(Tex.  Civ.  App.)  71  S.  W.  321.  An  assignment 
so  worded  as  to  refer  to  a  peUtion  which  has 
been  stricken  out  and  supplemented  by  an 
amended  petition  presents  nothing — Guthrie 
▼.  Rowland   (Ind.  App.)   «5  N.  E.  1040. 

18.  Brrror  assigned  as  failure  to  construe 
a  contract  and  determine  rights  of  a  for- 
eign corooration — Field  v.  Eastern  B.  &  L. 
Ass'n  (Iowa)  90  N.  \y.  717.  A  reference  to 
excreptions  to  pleadings  by  number  held  too 
general — ^Henry  v.  McXew  (Tex.  C5v.  App.) 
69  S.  \y.  21S.  Assignments  held  too  general 
to  specify  defective  description  in  petition 
on  trespass  to  try  title — ^Henry  ▼.  McXew 
(Tex.  CSV.  App.)  69  S.  "W.  213.  Specifications, 
that  instructions  do  not  state  the  law,  are 
confusing,  conflicting  and  present  false  is- 
sues, held  too  general — Shoemaker  v.  Bry- 
ant Mm  Co,  27  ^^ash.  637.  68  Pac  380.  Er- 
rors should  be  particularixed — United  States 
V.  Lee  Ten  Tai  (C.  C  A)  113  Fed.  465.  An 
objection  to  a  statement  for  mech3.-::s  lie- 
that  it  is  not  sufficiently  itemixed  j^r  ii-ri 
must  specify  the  dates  and  ixens —  ."  ..:i— ; 
V.  Stronb.  168  Mo.  346.  Assise  rr-:;  :.r. 
act  is  nnconstitutional,  hel  i  -  ;  -  :r  :  t  r  — 
Standish  v.  Bridgewater  Iri  ;  ;"  Z 
(Seneral  assignments  of  r  r r  ;  r  : r.  r r :  . 5 :r  ; 
judgment  non  obstante  .  '  i  :  r.  :  -  t  r :  . .  r.  ^ 
motion  for  new^  trial,  ai:  i  —::.:.  _--;:- 
verdict  held  too  general — :  ;  ;  t  r  i  It::.; 
(Iowa)  92  X.  W.  699.  A  :  -  r 
diet  was  contrary  to  chs. r  -  t      :  1 

and  based  on  erroneous    t 

too   general — Qine  v.  E 

App.)    71   S.   yr.   48.      Rm  .      t — 

Parkins  v.  Missouri  Pac 

W.   197.     Averment  tha: 

that  a  motion  set  out  g  :  r  t 

trial — Hughey  v.  Mosbr 

S.   W.   395.     The   stateir 

of  a  report   "is   not    sir ;-..i  s;. 

forth  reasons  for  ap::eil:-g — i.e.  ens  v.   S:e- 
▼rais.  71  N.  H.  579. 

19l  Judgments  on  ie'  rrers — -.r.lrr  ~. 
imitehead  (Ga.)  42  S.  i.         i  

a*.     Ash  ▼.  Beck   ■     -^.  .-^zz.     ::   5 

5S;   Gwaltney  v.   Se  .Civ.   Ar; 

S.  TT.  3d4;  \rell?  ^  -e:s-  CI-    ._:  ; 

69  S.  TT.  183.  ^-       r  J 

ority   of   a  ns:  tt:^    . 

contracts   exh:  -  -    t     :  - :    r  - 

the  mortgage    i  -    r.    ' 
and  that  the  c*:-    :  ■-  errr. 
did — Belcher  Mc 
App.)    68  &  W. 
assignment   or 
proposition — 1>  e 
(Tex.  Civ-.   A?T 


362;  Plnkard  ▼.  Willis  (Tex.  Civ.  App.)  67 
S.  "W.  135;  Tarrant  County  ▼.  Reid  (Tex. 
CSV.  App.)  67  S.  W.  785.  Must  point  out 
specific  errors  followed  by  a  sufficient  state- 
ment— Butier  v.  Holmes  (Tex.  CSv.  App.)  68 
S.  TV.  32.  An  assignment  of  instruction  as 
error  held  Insufficient  in  merely  specifying 
a  number  of  errors  and  stating  that  they 
were  not  w^arranted  by  evidence  but  without 
referring  to  the  record  and  subjoining  no 
statement  to  the  proposition — ^Holton  v.  Gal- 
veston. H.  &  S.  A.  R.  Co.  (Tex.  CSv.  App.) 
71  S.  'W.  408.  Averments  of  a  refusal  to 
aUow^  interest  in  a  judgment  on  contract 
must  have  statements  showing  contract  rate 
or  time  when  money  became  due — Hipp  v. 
Houston   (Tex.  CSv.  App.)   71  S.  "^.   39. 

SS.  Matters  not  germane  ^rill  be  disre- 
garded— Weeks  v.  Texas  M.  R.  Co.  (Tex.  Civ. 
App.)  67  &  W.  1071. 

S3.  Objection  to  sufficiency  of  findings — 
Tarrant  County  v.  Reid  (Tex.  CSv.  App.) 
"5  '^.  7S5.  Objections  to  evidence — Louis- 
:  e  :c  N.  R.  Co.  v.  Banks.  132  Ala.  471; 
;:  er  V.  5-andard  TeL  C^o.  (Iowa)  92  X.  W. 
"  -  ; r. :  1  -  I  e  i  errors  may  be  examined — San 
._:  :;r::    :c   .-.    ?     R.  Co.  v.  Addison  (Tex.)   70 

;    "'     .  .-.  =  i.z-- :f  the  overruling  of 

.    :    r    _  r  r  e  r    : ;  7  :  ertain  aUegauons 

\  r.  _      :  .  T  :  . . :  r.   :       "  -    .-  ending  facts  •were 

-.  ;:  ei — >;„;;;  v.  Mosby  (Tex.  Civ. 
7       '  1    S     ~ '     -  Error  in  assessing  re- 

T  r :  1  r  i  ; ;  T  ;  . ;  iiion  of  insufficiency  of 
ir -T  — ;    -.-      T;:ern     Oil     C^o.     v.     Bank 

4.     _--5;  -r:-^  vrr    r  in  overruling  general 

. .  _  r :  V  r    1 ;  e  ;    r. ; :   r  . : ;  e   5  r  ecial  exceptions — 

T^    -     ;-;     j^    S     ..     ?.     C?.    V.    Sherwood 


-    the 


:  D 


correct- 

and  the 

5  objected 

T^T      Civ. 

;  f  rait- 


W.     6.-, 
seoarai 


54*.      Either 


i  S.   R.  Co.   V.    _ 
"TT.    322.    71   S.   Vr 


^Tex.  Civ.  App.7  ••  ^  W.  i.  ..  = 

a.     Civ.  Ar-p.  Crt.  Rule  31 — Galveston,  H.  i     ^ ; 

S.  A-T.    r:    "  P^zez-re    (Tex.  Civ.  App.)  70   S.  W.    N. 


ASSIGNMENT    OF    ERRORS. 


145 


words  following  it;^^  for  an  assignment  is  good  or  bad  as  a  whole.^^  Instructions 
are  not  separately  indicated  by  referring  to  instructions  contained  in  specified 
paragraphs  of  the  charge  ;^^  but  an  assignment  otherwise  double  may  be  considered 
if  vices  are  urged  against  each  of  the  matters  assigned  as  error.^^  It  is  not  an  im- 
proper grouping  of  charges  to  contrast  those  which  are  objected  to  as  conflicting.'" 
One  assignment  lodged  against  several  matters  is  insufficient,  if  any  of  them 
are  correct/^  or  if  the  error  affect  only  one  of  them  f"  but  a  single  assignment  may 
reach  one  ruling  which  disposes  of  two  matters.^^ 

Joining  in  assignments. — Appellants  should  not  join  in  assignment  if  the  ruling 
may  be  good  as  to  one  of  them.^*  They  must  join  if  the  exception  was  joint.^'  If 
there  was  but  one  defendant,  the  use  of  the  plural  is  a  clerical  error,  and  does 
not  make  an  assignment  joint. ^® 

Amendments  and  additional  assignments. — Insufficiency  in  assignments  is  dis- 
regarded if  proper  amendments  are  made,  and  the  questions  are  specifically  dis- 
closed in  the  argument  and  brief.'^  The  appellate  court  in  Illinois  has  discretion 
to  allow  additional  assignments  on  higher  appeal.^* 

Defects  or  errors  in  pleadings. — The  complaint  or  declaration  as  a  whole 
should  be  assigned  for  insufficiency  to  state  a  cause  of  action.^®  Single  assion- 
ments  to  the  overruling  of  demurrers  against  a  mechanic's  lien  complaint  in  twelve 
paragraphs  present  only  sufficiency  of  the  pleading  as  a  whole.*"  A  material  omis- 
sion from  a  petition  or  complaint  is  fundamental.*^  The  reason  why  it  was  error 
to  overrule  a  demurrer  should  be  stated.*^ 

Rulings  on  evidence. — Assignments  of  error  in  rulings  on  evidence  should  con- 
form to  the  objection  made.*'  In  Texas  the  principle  making  exclusion  of  evidence 
erroneous  should  be  stated.**  Wliat  the  evidence  was  which  the  court  excluded 
should  appear,  at  least  in  substance.*^  That  evidence  of  unnamed  witness  was 
refused  and  rejected  is  not  sufficient.*®     Particular  evidence  which  is  objectionable 


26.  An  appended  proposition,  so  called.  Is 
bad  which  merely  refers  to  the  assignment 
wherein  several  propositions  are  combined 
— Driver  v.  Wilson  (Tex.  Civ.  App.)  68  S.  W. 
290. 

27.  Hennessy  v.  Anstock,  19  Pa.  Super. 
Ct.   644. 

28.  Assignments  held  too  general — Palvre 
V.  Manderschied   (Iowa)    90  N.  W.   76. 

29.  Assignments  designating  certain  in- 
structions by  number  and  stating  that  each 
was  either  erroneous  or  inapplicable  held 
sufficient — Denver  &  R.  G.  R.  Co.  v.  Young 
(Colo.)    70  Pac.  6S8. 

30.  Shoemaker  v.  Turner  (Iowa)  90  N.  W. 
709. 

31.  Chicago,  I.  &  L.  R.  Co.  v.  State,  158 
Ind.    189. 

32.  Renard  v.  Grande  (Ind.  App.)  64  N.  E. 
644. 

33.  If  a  single  ruling  sustains  separate 
demurrers  to  separate  paragraphs,  one  as- 
signment reaches  error  in  sustaining  either 
demurrer — Farmers'  Ins.  Co.  v.  Tetter  (Ind. 
App.)  65  N.  E.  762. 

34.  Niehaus  v.  Cooke,  134  Ala.  223;  Kil- 
lian  V.  Cox.  132  Ala.  664.  If  a  complaint  be 
sufficient  as  to  any  defendant,  a  joint  as- 
signment of  error  in  overruling  demurrer  is 
bad — Bush  v.  McBride   (Ind.)   65  N.  E.  1026. 

35.  Chappell  v.  Jasper  Gas  Co.  (Ind.  App.) 
66  N.  E.  515. 

36.  Ohio  Farmers'  Ins.  Co.  v.  Vogel  (Ind. 
App.)  65  N.  E.  1056. 

Cur.  Law — 10. 


Roberts    v.    Parker    (Iowa)    90    N.    W. 


37. 

744. 

38.  Refusal  to  allow  additional  assign- 
ments seven  days  after  judgment  in  appel- 
late court  is  proper  discretion — Off  v.  Finkel- 
stein,  200  111.  40. 

39.  A  single  paragraph  cannot  be  sepa- 
rately assigned  but  must  be  questioned  by 
assigning  the  whole  complaint  as  insufficient 
— Case  Threshing  Mach.  Co.  v.  Millikan,  28 
Ind.  App.  686;  Van  Horn  v.  Mercer  (Ind. 
App.)   64  N.  E.  531. 

40.  Chicago  &  S.  E.  R.  Co.  v.  Woodard 
(Ind.)   65  N.  E.  577. 

41.  Allegation  of  fact  necessary  to  give 
petitioner  the  right  to  purchase  school  land 
— Sterling  v.  Self  (Tex.  Civ.  App.)  70  S.  W. 
238. 

42.  Interstate  S.  &  L.  Ass'n  v.  Benson,  28 
"Wash.   578,   68  Pac.   1038. 

43.  Objection  was  general  and  assignment 
special — Louisville  &  N.  R.  Co.  v.  Banks,  132 
Ala.   471. 

44.  Yarbrough  v.  De  Marlln.  (Tex.  Civ. 
App.)   67  S.  W.  177. 

45.  Russell  V.  Mohr-Weil  Lumber  Co..  115 
Ga.  35.  Merely  specifying  the  question  with- 
out the  expected  answer  will  not  suffice — ■ 
Bigby  V.  Warnock,  115  Ga.  385.  Admission 
of  "all  testimony"  relevant  to  a  stated  mat- 
ter is  bad;  should  show  what  was  admitted 
— Wright  v.  Roberts  (Ga.)   42  S.  E.  369. 

46.  Tourtellotte  v.  Brown  (Colo.  App.) 
71  Pac.   638. 


146 


APPEAL  AND  REVIEW. 


should  be  specified.*^  Specific  references  to  the  witness'  name  and  the  pages  of 
the  abstract  do  not  indicate  the  very  error  complained  of,  if  various  questions 
and  nimierous  objections  appear  on  those  pages.** 

InMructions. — Error  in  charging  should  be  assigned  to  the  particular  error.*^ 

If  charges  were  refused,  it  should  be  shown  what  they  were.°°  An  instruction 
affirmatively  stating  an  erroneous  rule  of  law  is  fundamental  error  which  need  not 
be  assicrned.^^  A  distinct  statement  of  the  error  complained  of  is  not  made  by 
objecting  to  a  refusal  of  an  instruction  which  does  not  clearly  raise  the  question." 
An  assionment  of  error  in  charging  abstractly  does  not  present  the  question 
whether  it  applies  to  the  evidence."  Xor  does  its  correctness  arise  on  an  averment 
that  the  instruction  was  inapplicable."  Merely  identifying  an  instruction  with- 
out specif3-ing  wherein  it  is  erroneous  is  bad." 

Error  in  directing  a  verdict  should  be  so  assigned  as  to  point  out  wherein  error 
Iies.°*  A  general  assignment  against  a  directed  verdict  raises  only  the  sufficiency 
of  evidence.^^ 

Verdicts  and  findings  of  fact. — ^If  the  verdict  be  assailed  for  deficiency  of 
evidence,  particulars  in  which  it  is  unsupported  should  be  indicated.^^  Sufficiency 
to  support  findings  must  be  specified  vrith  particularity.^®  The  particular  in  which 
a  finding  lacks  proof  should  be  stated.®"  It  is  sufficient  to  indicate  each  probative 
fact.®^  Want  of  evidence  is  not  presented  by  an  objection  that  findings  are  con- 
trary to  evidence.®-    If  the  verdict  is  excessive  or  unconscionable,  there  must  be 


47.  Not  the  entire  examination — Logans- 
port  &  W.  Gas  Co.  V.  Coate  (Ind.  App.)  64 
N.  E.  63S.  Reference  to  subject-matter  in- 
sufficient— Chicago.  St.  P.,  M.  &  O.  R.  Co.  v. 
Lagerkrans  (Xeb.)  91  N.  W.  358.  Inadmis- 
sibilitv  of  a  lease  is  not  raised  by  question- 
ing its  right  to  be  recorded  without  stating 
that  it  was  not  proved  by  evidence  other 
than  itself — Yarbrough  v.  De  Martin  (Tex. 
Civ.  App.)    67  S.  W.  177. 

48.  Grapes    v.    Sheldon    (Iowa)    93    N.    W. 

67. 

49.  If  error  in  a  group  of  instructions  is 
assigned,  the  reason  should  be  pointed  out — 
Albion  Milling  Co.  v.  First  Nat.  Bank  (Neb.) 
S9  N.  W.  638.  Assignments  should  specify 
objectionable  parts  of  charge  in  exact  words 
— Sailor  v.   Reamer.    20   Pa.   Super.   Ct.    597. 

50.  Butler  v.  Holmes  (Tex.  Civ.  App.)  68 
S  W.  52.  Refused  instructions  should  be 
set  out— Gulf.  C.  &  S.  F.  R.  Co.  v.  Co^i»*l 
(Tex.  Civ.  App.)  69  S.  W.  980.  Not  sufficient 
to  sav  that  refused  instructions  covered 
principles  applicable  to  case — Illinois  Cent. 
R.  Co.  V.  Jernigan,  198  111.  29T. 

51.  Harper  v.  Dodd   (Tex.  Civ.  App.)   70  S. 

W.  223. 

53  Constitutionality  of  statute — Griswold 
V.  Guilford  (Conn.)   52  Atl.  742. 

53.     Brown  v.  Latham.  115  Ga.  666. 

54!  Averment  that  evidence  did  not  war- 
rant" instruction  on  measure  of  damages  in- 
sufficient  to   present  correctness   of  the  rule 

gtated Meyer    v.    Standard    Tel.    Co.    (Iowa) 

92  N.  W.  720. 

55.  "No  5  in  Abs  folios  450" — Hedlun  v. 
Holv  Terror  Min.  Co.    (S.  D.)    92  N.  TV.   31. 

56  \n  assignment  against  a  directed  ver- 
dict'for  plaintiff  for  the  reason  that  the  evi- 
dence =ur.ported  defenses  held  too  general- 
Liner  V.  Watkins  Mortg.  Co.  (Tex.  Civ.  App.) 
S8  S  W  311.  On  assigning  a  peremptory  in- 
struction, the  statement  should  show  that 
there    was    an    issue    raised    on    a    question 


which  it  was  urged  should  have  been  sent 
to  the  jury — Swift  v.  Bruce  (Tex.  Civ.  App.) 
71  S.  W.  321.  Averment  that  directed  ver- 
dict was  •nrong  under  pleadings  and  evidence 
is  special  and  presents  both  the  sufficiency 
of  the  facts  pleaded  and  those  proved;  also 
whether  the  successful  party  was  entitled 
to  verdict — Kelly  v.  Strouse  (Ga.)  43  S.  E. 
280. 

57.  Kelly  V.  Strouse  (Ga.)   43  S.  E.  2S0. 

58.  King  V.  Henderson  (Tex.  Civ.  App.) 
59  S.  "^.  4S7.  Objection  for  insufficiency  of 
evidence  held  not  sufficiently  specified  in  an 
action  for  killing  a  person  on  a  railroad 
bridge — Texas  &  P.  R.  Co.  v.  Harby  (Tex. 
Civ.  App.)  67  S.  "^.  541.  Insufficiency  of  evi- 
dence must  be  specified — Hollister  v.  State 
(Idaho)  71  Pac.  541.  Failure  to  prove  ma- 
terial facts  cannot  be  raised  under  an  assign- 
ment of  the  overruling  of  a  demurrer  based 
on  the  omission  of  allegations  from  the 
pleadings — Hughey  v.  Mosby  (Tex.  Civ.  App.) 
71   S.  W.   395. 

59.  State  V.  Pierre.  15  S.  D.  559.  Aver- 
ment that  special  findings  are  inconsistent 
with  general  verdict  and  that  facts  showed, 
etc.,  held  insufficient — Copeland  v.  Ferris 
(Iowa)  92  N.  W.  699.  Assignments  of  error 
in  finding  in  favor  of  the  adverse  party  and 
not  in  favor  of  appellant  and  in  not  giving 
judgment  for  appellant,  present  questions  of 
fact — Coverdale  v.  Royal  Arcanum,  199  111. 
649.  A  material  finding  must  be  specified 
and  its  lack  of  support  clearly  shown — Sil- 
veira  v.  Reese,  13S  Cal.  xix.,  71  Pac.   515. 

60.  Code  Civ.  Pr.  §§  657-659 — Swift  v.  Oc- 
cidental Min.  Co.  (Cal.)  70  Pac.  470.  Gen- 
eral averment  of  insufficiency  is  bad — Bell 
V.  Staacke  (Cal.)  70  Pac,  472. 

61.  Laidlaw  v.  Pacific  Bank,  137  CaL  392, 
70  Pac.  277. 

62.  Record  V.  Chickasaw  Cooperage  Co., 
IDS  Tenn.  657. 


ASSIGNMENT    OF    ERRORS. 


147 


an  assignment  of  the  court's  refusal  to  set  it  aside.®^  In  Texas,  assignments  other- 
wise presenting  the  sul^ciency  of  the  evidence  to  sustain  the  verdict  need  not  be 
accompanied  by  an  assignment  of  error  in  overruling  motion  for  a  new  trial.®* 
Inclusion  of  interest  in  a  verdict  for  damages  for  a  tort  should  be  particularized.®'* 
Error  in  assessing  recovery  is  not  specified  by  an  objection  to  verdict  as  unsup- 
ported.®® 

Judgments  and  findings  of  law. — It  should  be  specified  wherein  a  judgment  is 
contrary  to  law,  else  the  court  will  consider  only  whether  it  follows  the  pleadings.®^ 
A  general  assignment  is,  however,  sufficient,  where  error  appears  on  the  face  of  the 
record.®^  Averment  that  judgment  for  damages  is  not  authorized  by  pleading  raises 
the  propriety  of  allowance  of  interest.®®  A  refusal  to  reform  a  judgment  by  striking 
out  should  be  particularly  assigned.''®  A  finding  which  is  in  reality  one  of  law 
should  be  averred  as  such,  though  it  purports  to  be,  and  is  included  among,  findings 
of  fact.^^ 

Motion  for  new  trial. — In  some  jurisdictions,  error  assigned  in  ruling  on  a 
motion  for  new  trial  must  specify  the  particular  error  or  ground  urged,''^  but  not 
in  Indiana  ;^^  and  in  Nebraska  the  ruling  must  be  assigned  in  addition  to  those 
errors  assigned  on  the  motion  itself,  if  they  are  to  be  considered.'^* 

Rulings  by  a  lower  court  of  appeal  should  be  assigned  error  in  "sustaining" 
or  "not  sustaining"  the  action  of  the  trial  court.'"' 

4.  Demurrers,  pleas,  and  replications. — Eeplication  to  a  plea  of  release  of  errors 
must  deny  or  confess  and  avoid;  and  if  it  does  not  answer  the  plea,  and  is  de- 
murred to,  the  demurrer  will  be  heard  as  though  to  the  plea.^® 

F.  Briefs  and  arguments. — Briefs  are  necessary  if  the  court  insists,''^  and  for 


63.  International  &  G.  N.  R.  Co.  v.  Branch 

(Tex.  Civ.  App.)   68  S.  W.  338. 

64.  St.  Louis  &  S.  W.  R.  Co.  v.  McArthur 
(Tex.)   70  S.  W.   317. 

05.  General  objection  that  the  verdict  was 
contrary  to  law  insufficient — Southern  R.  Co. 
V.  Horner,  115  Ga.  281. 

C6.  Wliether  a  verdict  was  exact  in 
amount  does  not  come  upon  an  averment 
that  it  is  unsupported — Southwestern  Oil  Co. 
v.  Bank  of  Stroud  (Okl.)  70  Pac.  205. 

67.  De  Mund  Lumber  Co.  v.  Stilwell 
(Ariz.)  68  Pac.  543.  General  assignment  of 
error  in  entering  judgment  on  verdict  is  bad 
unless  a  question  of  law  has  been  saved  or 
there  is  error  on  the  record — Wills  v.  Hard- 
castle,  19  Pa.  Super.  Ct.  525.  "Findings  un- 
supported by  evidence"  does  not  present 
judgment  unsupported  by  findings — Tarrant 
County  V.  Reid  (Tex.  Civ.  App.)  67  S.  W. 
785.  That  it  was  error  to  pass  any  decree 
for  complainant,  held  too  general — Clerks' 
Inv.  Co.  V.  Sydnor,  19  App.  D.  C.  89.  Allow- 
ance for  moneys  due  after  the  time  pleaded 
must  be  assigned — Morin  v.  Robarge  (Mich.) 
93  N.  W.  886.  That  judgment  is  contrary 
to  law  too  indefinite — Bosserman  v.  Larson 
(Neb.)    93  N.  W.   411. 

68.  Waterbury  L.  &  C.  Co.  v.  Hinckley 
(Conn.)  52  Atl.  739.  Assigned  error  in  find- 
ing of  judgment  for  plaintiff,  presents  the 
sufficiency  of  findings  to  support  the  judg- 
ment— White  v.  Schaberg  (Mich.)  91  N.  W. 
168. 

69.  San  Antonio  &  A.  P.  R.  Co.  V.  Addi- 
son   (Tex.)    70  S.  W.   200. 

70.  No  proposition  was  appended — Robin- 
son v.  Chamberlain  (Tex.  Civ.  App.)  68  S.  W. 
209. 

71.  Findings  that  a  lien  was  valid  was  ob- 


jected to  as  being  against  the  law  and  un- 
supported— Petaluma  Pav.  Co.  v.  Singley  136 
Cal.  616,  69  Pac.   426. 

73.  If  more  than  one  ground  is  urged — 
Case  Threshing  Mach.  Co.  v.  Huffman.  86 
Minn.  30.  An  assignment  is  bad  if  it  does 
not  state  the  ground  on  which  the  motion 
was  made — De  Mund  Lumber  Co.  v.  Stilwell 
(Ariz.)  68  Pac.  543.  General  assignments  of 
error  in  refusing  a  new  trial  and  overruling 
motion  for  it,  not  sufficient — Stephenville  v 
Bower  (Tex.  Civ.  App.)  68  S.  W.  833.  Gen- 
eral assignment  against  overruling  a  new 
trial  is  bad — Shoemaker  v.  Turner  (Iowa)  90 
N.  W.  709.  Insufficiency  of  evidence  must 
be  specified  on  appeal  from  new  trial — Pick- 
ering L.  &  W.  Co.  V.  Savage,  137  Cal.  xix.. 
69  Pac.  846.     Error  must  be  assigned  besides 

being    specified    in    motion    for    new    trial 

Southwestern  Oil  Co.  v.  Bank  of  Stroud 
(Okl.)   70  Pac.  205. 

73.  Error  assigned  In  overruling  motion 
for  new  trial  is  sufficient  in  form — Standish 
V.  Bridgewater  (Ind.)   65  N.  E.  189. 

74.  Achenbach  v.  Pollock  (Neb.)  90  X.  W. 
304;  Sharp  v.  Call  (Neb.)  90  N.  W.  765;  Ger- 
man Fire  Ins.  Co.  v.  Palmer  (Neb.)  92  N.  W. 
624;  Cole  v.  Adams  County  (Neb.)  93  N.  W. 
701.  Denial  of  new  trial  must  be  assigned 
in  order  to  present  sufficiency  of  evidence — 
Moores  v.  Jones  (Neb.)  93  N.  W.  1016:  Zim- 
merman V.  Kearney  County  Bank  (Neb.)  91 
N.    W.    497. 

75.  In  Pennsylvania,  "not  sustaining"  the 
(designated)  "assignment  of  error"  specify- 
ing what  it  was — Mellick  v.  Pennsylvania 
R.    Co.,    203    Pa.    457. 

76.  Trapp  v.  Off,  194  111.  287. 

77.  Brevaldo  v.  Rogers  (Fla.)  33  So.  455. 
Should   not  be  dispensed  with — 3  Enc.   PI.   & 


148 


APPEAL  AND  REVIEW. 


want  of  the  proper  brief  a  decision  mav  be  rendered,'*  but  is  not  a  matter  of  right.'* 
The  right  to  open  may  be  waived  by  delay  in  filing  briefs  or  argiunents.*" 

Time  for  filing  briefs  by  appellees  will  not  be  shortened  where  the  service  on 
them  was  so  tardy  that  they  are  not  obliged  to  appear  nntil  a  later  term.*^  Filing 
briefs  after  an  abortive  motion  to  dismiss  for  want  of  them  is  equivalent  to  a  filing 
before  motion.®-  Additional  briefs  allowed  must  be  filed  within  time  given.®' 
Tardv  filing  may  be  waived  by  delay  to  object.**  It  is  not  excused  by  pendency 
of  a  motion  to  dismiss  for  insufficiency  of  the  bond."  A  failure  to  file  is  not 
excused  by  the  fact  that  all  the  errors  are  fundamental  and.  are  presented  by  as- 
signments.-* A  delay  in  filing  briefs  in  reliance  upon  the  oral  promise  of  the 
opposing  counsel  below  is  not  excused  where  the  statute  and  rules  of  the  court 
provide  for  an  extension  of  time  by  agreement  or  by  the  court  or  judge  for  good 
cause  shown  before  the  expiration  of  the  time  allowed,  the  attorney  not  being  ad- 
mitted in  the  supreme  court.*^ 

The  brief  should  be  answered  or  it  may  be  taken  as  confessed.'^  Under  the 
Indiana  rules,  statements  concerning  the  record  are  accepted,  unless  denied  or  cor- 
rected bv  an  answering  brief.*®  Facts  may  be  admitted  by  adopting  words  of  the 
opinion  which  assume  their  existence.'"  If  appellee's  brief  sets  up  a  defense  or 
avoidance  not  touched  on  by  appellant,  he  must  reply  to  prevent  an  aflmnance.*^ 
Points  not  properiy  made  or  presented  in  the  brief  cannot  be  urged  in  the  repi; 
briefs®-  or  on  rehearing." 

Statutes  and  couri;  rules  prescribing  the  form  and  contents  of  briefs  should 
be  insisted  on.®*  A  common  requirement  is  a  summary  of  the  record  and  evi- 
dence.®^    Under  the  supreme  court  rule  of  Indiana,  one  who  omits  to  briefly  recite 


Pr.  "Briefs."'  In  Georgia  tardiness  is  a  cor- 
tempt  and  not  a  ground  for  dismissal — Rob- 
erts V.  Roberts.  115  Ga.  259.  Failure  to  hie 
briefs  necessitates  dismissal  in  Tex;is — Bow- 
man V.  Hoffman  (Tex.  Civ.  App.)  67  S.  "W. 
152. 

TS.  Pro  forma  affirmance  or  dismissal — 
Pavey  v.  Pavey,  103  111.  App.  589;  Ball  v. 
Dignowity  fTex.  Civ.  App.)  68  S.  "W.  800; 
W^arren  v.  Humble,  26  Mont.  495,  68  Pac  851. 

79.  Striking  a  i)rief  does  not  entitle  op- 
posite party  to  decision — Davis  v.  Huber  Mfg. 
Co.  (Iowa)  93  N.  W.  78. 

80.  Under  the  Iowa  rules  In  case  where 
appellee  had  the  burden  in  a  trial  de  novo, 
his  failure  to  file  arguments  thirty  days  be- 
fore hearing  was  held  equivalent  to  thirty 
days'  notice  of  waiver  of  the  right  to  open — 
Busch  v.  Hall  (Iowa)   93  X.  W.  356. 

81.  Rule  18  allows  time  to  be  shortened 
for  good  cause — State  Board  v.  People,  29 
Colo.  353,  68  Pac.  236. 

82.  Sup.  Ct.  Rule  5  construed — Swortfig- 
uer  V.  "White,  137  Cal.  391.  70  Pac.  214. 

83.  If  not  decision  will  be  made  on  argu- 
nients  already  submitted — ^Nicholas  v.  Nicho- 
las (Va.)  42  S.  E.  866. 

84.  Girson  V.  Morris  (Tex.  Civ.  App.)  67 
S.  W.  43C. 

85.  Headstrom  f.  Hellieson,  136  Cal.  498, 
69  Pac  148. 

86.  R.  S.  1895.  art.  1417,  and  the  supreme 
court  rules  29.  S4,  require  it — Bowman  v. 
Hoffman  (Tex.  Civ.  App.)   67  S.  "W.  152. 

8T.     Robertson  v.  Shorow  ("Wyo.)  69  Pac.  1. 

SS.  Delay  of  200  days  in  failing  to  file 
answering  brief  taken  as  confession  of  er- 
rors— Peoples  Xat.  Bank  v.  State  (Ind.)  65 
N.  E.  6. 

P9.  ^:cElwaine-Richards  Co.  v.  "Wall  (Ind.) 
€5  N.  E.  753. 


90.  That  there  was  any  evidence  on  a 
certain  point  was  so  admitted — Pitcairn  v. 
Hiss   (C.  C.  A.)   113  Fed.   492. 

91.  Appeal  was  based  on  a  disallowed 
counter-claim  for  charges;  appellee  asserted 
that  he  Lad  paid  them — Bartholomew  v. 
Yankee  (Colo.)  70  Pac.  405. 

92.  Sufficiency  of  application  for  manda- 
mus— Malott  V.  State,  158  Ind.  678. 

93.  Indiana  Power  Co.  v.  St.  Joseph  Pow- 
er Co.   (Ind.)   64  X.  E.  468. 

94.  Kranich  v.  Helena  Water  Co..  26  Mont- 
379.  68  Pac.  408,  71  Pac.  672. 

95.  Indiana  Sup.  Ct.  Rules  provide  if  the 
record  be  not  summarized  so  as  to  present 
error  in  ruling  on  a  demurrer,  it  will  be  dis- 
regarded— H'jston  V.  Fatka  (Ind.  App.)  66  X. 
E.  74.  Findings  substantially  the  same  as 
allegations  need  not  be  printed  in  appellants 
brief  in  "Washington,  when  no  evidence  was 
taken  and  no  error  in  findings  is  urged — Pay- 
ette v.  Ferrier  ("Wash.)  71  Pac.  546.  A  par- 
enthetical reference  to  the  petition  and  evi- 
dence in  the  case  is  not  a  statement  of  the 
case  and  points  to  be  insisted  on  by  the 
pleadings  and  facts  shown  by  the  record — 
South  wick  V.  Southwick  (Mo.  App.)  72  S.  "W. 
477.  Appellant  must  conform  in  every  re- 
spect to  the  rule  requiring  an  abstract  of  the 
case  presenting  the  questions  and  the  man- 
ner in  ■which  they  are  raised  and  page  ref- 
erence to  the  transcript — Kranich  v.  Helena 
"Water  Co..  26  Mont.  379,  6S  Pac  40S.  71  Pac 
672.  Findings  and  conclusions  need  be  print- 
ed in  a  brief  only  -when  a  question  is  raised 
thereon — Cathcart  v.  Bryant,  28  "Wash.  31, 
68  Pac  171.  If  they  are  omitted  without  ex- 
cuse and  no  correction  is  offered,  the  suffi- 
ciency of  the  evidence  ■will  not  be  examined 
— Interstate  S.  &  L.  Ass'n  v.  Benson,  2S 
"Wash.   578.   68  Pac.   1038.     Under  rule  10  the 


BRIEFS  AND  ARGUMENTS. 


149 


fhe  evidence  cannot  object  to  its  sufficiency.®'  If  errors  be  not  presented  and  ar- 
gued properly^^  in  briefs  or  orally/^  they  are  waived,  though  the  trial  is  de  novo.®* 
One  of  several  points  is  lost  if  not  presented.^ 

The  argument  must  go  into  the  error  discursively,^  and  must  treat  all  the 
grounds  on  which  a  ruling  is  lodged.^  The  "points"  or  errors  should  be  specified 
and  authorities  cited,*  and  the  place  where  the  record  contains  the  matter  re- 
ferred to;^  but  though  defective  it  may  be  retained  if  the  court  can  see  the  errors 
relied  on.®  It  is  not  sufficient  to  refer  to  the  case  or  bill  of  exceptions  by  num- 
ber of  the  folio  if  the  place  referred  to  does  not  clearly  present  the  question.'^ 


statement  must  refer  to  and  present  the 
order  denying-  a  new  trial  which  is  appealed 
from — Warren  v.  Humble.  2B  Mont.  495,  68 
Pac.  851.  Affirmed  for  failure  to  include 
statements  of  case  and  reference  to  order  ap- 
pealed from  in  brief — Warren  v.  Humble,  26 
Mont.  495,  68  Pac.  851.  In  many  states  there 
must  be  an  abstract  or  the  like  and  index, 
etc..  made  up  as  part  of  the  memorial  of  the 
transmitted  proceeding's;  see  ante,  §  9.  A 
brief  should  state  the  cause  af  action,  the 
assignments,  so  that  the  significance  of  all 
can  be  ascertained  without  ii\^pecting  the 
entire  record,  and  should  support  assign- 
ments by  propositions — Maldonado  v.  Arthur 
(Tex.   Civ.  App.)    70  S.   W.   562. 

9C.  Boseker  v.  Chamberlain  (Ind.)  66  N. 
E.  448:  Indiana,  D.  &  W.  R.  Co.  v.  Ditto,  158 
Ind.   669. 

97.  Clem  v.  Wise,  133  Ala.  403;  Beyer  v. 
Fields,  134  Ala.  236;  Kearney  v.  Nicholson 
(Tex.  Civ.  App.)  67  S.  W.  361;  Falke  v.  Brule 
(Colo.  App.)  68  Pac.  1054;  Trimble  v.  Terril, 
99  111.  App.  349;  Chicago  &  E.  R.  Co.  v.  Lee 
(Ind.  App.)  64  N.  E.  675;  Hoyt  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.  (Iowa)  90  N.  W.  724;  May- 
hew  V.  Knittle  (Neb.)  89  N.  W.  1037;  West- 
ern Union  Tel.  Co.  v.  Church  (Neb.)  90  N. 
W.  878;  Commonwealth  Roofing  Co.  v.  Pal- 
mer Leather  Co.,  67  N.  J.  Law,  566;  Nordin 
v.  Berner,  15  S.  D.  611;  Nix  v.  Reiss  Coal  Co., 
114  Wis.  493;  Chicago  Transf.  R.  Co.  v.  Gruss. 
102  111.  App.  439;  Dolan  v.  Mutual  Reserve 
Life  Ass'n,  182  Mass.  413;  Anderson  v.  An- 
derson (Neb.)  92  N.  W.  151;  Pearce  v.  Miller, 
201  111.  188;  Payne  v.  Moore  (Ind.  App.)  66 
N.  E.  483;  Greenfield  v.  Johnson  (Ind.  App.) 
65  N.  E.  542;  Baltimore  &  O.  R.  Co.  v.  Daeg- 
ling  (Ind.  App.)  65  N.  E.  761;  Southerland 
V.  Sandlin  (Fla.)  32  So.  786;  Jaraszewski  v. 
Allen  (Iowa)  91  N.  W.  941;  Scott  v.  Gage 
(S.  D.)  92  N.  W.  37;  Seattle  &  M.  R.  Co.  v. 
Roeder,  30  Wash.  244,  70  Pac.  498;  Doherty 
V.  Rice,  182  Mass.  182;  Carroll  v.  New  York, 
N.  H.  &  H.  R.  Co.,  182  Mass.  237;  Barrett  v. 
Bruffee  (Mass.)  65  N.  E.  44.  Cross-errors — 
Moore  v.  Hooker  Co.,  101  111.  App.  177.  Ob- 
jections to  an  account  appealed  from — Cogs- 
well's Heirs  v.  Freudenau,  93  Mo.  App.  482. 
Where  brief  does  not  point  out  insuflSciency 
of  evidence  an  assignment  thereon  will  not 
be  noticed — Brovelli  v.  Bianchi,  136  Cal.  612, 
69   Pac.   416. 

9S.  Corrigan  v.  Kansas  City,  93  Mo.  App. 
173:  Portsmouth  Bank  v.  Omaha  (Neb.)  93 
N.  W.  231. 

99.     Thoma  v.  Hecker  (Iowa)   90  N.  W.  598. 

1.  Several  grounds  for  new  trial — Logans- 
port  Gas  Co.  V.  Coate,  29  Ind.  App.  299.  Sev- 
eral grounds  for  demurrer — Bell  v.  Stevens. 
116  Iowa.  451.  Appeal  from  two  adjudica- 
tions— Rauer's  CoU'n  Co.  v.  Gilleran,  138 
Cal.  352. 

2.  Himrod  Coal  Co.  v.  Clark,   197   111.   514; 


Frick  V.  Kabaker,  116  Iowa,  494;  Zimmer- 
man v.  Kearney  County  Bank  (Neb.)  91  N. 
W.  497. 

3.  Motion  for  new  trial — Boyd  v.  W.  U. 
Tel.  Co.   (Iowa)   90  N.  W.  711. 

4.  Brief  held  bad  for  failure  to  specify 
errors  or  cite  authorities  as  required  by  rules 
— McAlester  Coal  Co.  v.  Patterson  (Ind.  Ter.) 
69  S.  W.  840.  Refusal  of  instructions  must 
be  specified — Trompen  v.  Yates  (Neb.)  92  N. 
W.  647.  On  a  long  account  by  an  administra- 
tor, individual  items  not  specified  will  not  be 
inspected  to  discover  error  in  apportioning 
income  and  principal — In  re  Hart's  Estate, 
203  Pa.  492.  A  statement  held  sufficient  to 
present  the  propriety  of  a  charge  relating  to 
the  good  faith  of  community  debts,  the 
charge  and  the  evidence  being  given  by  ref- 
erence to  the  assignment  and  the  record. — 
Cage  V.  Tucker's  Heirs  (Tex.  Civ.  App.)  69 
S.  W.  425.  Appeal  may  be  dismissed  for  fail- 
ure to  specify  number  and  particularize  er- 
rors in  the  briefs — DriscoU  v.  Shields,  26 
Mont.  494,  68  Pac.  851.  Assignments  must 
be  briefed  separately — Wells  v.  Houston 
(Tex.  Civ.  App.)  69  S.  W.  183.  Unless  errors 
are  fundamental,  the  assignment  must  be 
copied  into  the  brief — Hollywood  v.  Well- 
hausen  (Tex.  Civ.  App.)   68  S.  W.  329. 

.5.  Objectionable  evidence  should  be  re- 
ferred to  by  page  of  the  record  if  not  stated 
under  the  assignment — Westinghouse  Co.  v. 
Troell  (Tex.  Civ.  App.)  70  S.  W.  324.  A 
statement  of  the  case  that  recites  that  there 
are  other  questions  is  substantially  a  "clear 
statement  of  the  case,  so  far  as  deemed  ma- 
terial"— Drumheller  v.  American  Surety  Co., 
30  Wash.  530,  71  Pac.  25;  Crowley  v.  Mc- 
Donough,  30  Wash.  57,  70  Pac.  261.  Objec- 
tions that  plaintiff's  franchise  was  defective 
held  bad,  they  not  referring  to  the  record 
where  the  fact  appeared — Los  Angeles  Trac- 
tion Co.  v.  Wilshire,  135  Cal.  654,  67  Pac.  1086. 
Must  definitely  refer  to  evidence  in  1300  page 
transcript,  complained  of  as  being  cross  ex- 
amination on  new  matters — Board  of  Com'rs 
V.  Gibson,  158  Ind.  471.  Rulings  on  evidence 
must  under  rule  22  be  referred  to  by  page 
and  line  of  transcript — Indiana,  D.  &  W.  R, 
Co.  V.  Ditto,  158  Ind.  669.  Under  rule  10  rul- 
ing on  motion  for  nonsuit  must  be  referred 
to  and  also  the  proper  page  of  the  transcript 
showing  it — Power  v.  Stocking,  26  Mont.  478, 
68  Pac.  857;  Baltimore  &  O.  R.  Co.  v.  Daeg- 
ling  (Ind.  App.)  65  N.  E.  761. 

6.  Record  not  referred  to  and  rulings  on 
motions  to  dismiss  as  to  one  party  were  not 
specified  (Statutes  and  Court  Rules  con- 
strued)— Crowley  v.  McDonough,  30  Wash. 
57,    70   Pac.    261. 

7.  It  presented  a  colloquy  as  to  instruc- 
tions— Devanev  v,  Degon,  etc.,  Co.,  79  App. 
Div.   (N.  Y.)   62. 


150 


APPEAL  AND  REVIEW. 


Malign  and  scandalons  words  may  subject  a  brief  to  striking  ont.'  It  may 
be  stricken  for  failure  to  properly  specify  errors.*  A  brief  should  be  stricken  when 
the  excuse  for  filing  out  of  time  is  press  of  business  in  the  trial  court.**  An  ap- 
pellee's brief  and  assignment  of  cross  errors  is  not  to  be  stricken  merely  because 
appellee  was  denied  an  appeal.**  Leave  may  be  given  to  file  new  briefe  in  place 
of  those  stricken  as  being  scandalous.*' 

It  is  scandalous  to  refer  to  the  trial  judge  as  "arrogant,"*'  so  is  an  attack 
on  a  co-ordinate  branch  oi  government  which  exceeds  criticism  of  a  particular 
action  and  becomes  general  denunciation,**  or  a  statement  attributing  extraordinary 
ignorance  and  usurpation  of  power  to  the  trial  judge.**  It  is  not  objectionable 
for  opposing  counsel  to  refer  to  such  language  as  "coarse  and  brutal  aspersions.*^* 
A  brief  cannot  be  regarded  as  misleading,  if  a  misstatement  regarding  the  rec-ord 
is  made  merely  by  way  of  disagreement  of  counseL*' 

Refiling  briefs  from  other  courts. — In  Illinois  where  facts  are  not  reviewed 
in  the  supreme  court  and  the  appellate  court  brief  can  be  used  only  to  determine 
what  was  there  decided,  copies  of  such  briefs  commingling  questions  of  law  and 
fact  and  entitled  in  the  supreme  court  will  be  ignored.** 

G.  Grounds  for  dismissing,  quashing,  or  striking  out  appeal. — Sonexisien^e  of 
any  litigahle  right  is  good  cause,  e.  g.,  that  the  appeal  is  frivolous  or  futile,**  or 
the  judgment  purely  moot,**  or  the  cause  of  action  extinguished.**  Judgment  on 
a  cross  proceeding  requires  a  dismissal  of  the  main  writ  of  error."  An  appeal  from 
judgment  on  demurrer  is  moot  if  appellants  have  since  pleaded  over.^  A  settle- 
ment by  acceptance  only  of  what  was  undisputed  leaves  the  issue  pending  and  not 


8.  Spoken  of  the  trial  court — Schleissner 
▼.  Schleissiier.  72  App.  Div.  (X.  T.)  492 ;  Saw- 
dey  V.  Spokane  Falls  &  X.  R.  Co..  27  Wash. 
536.  67  Pac  1094.  Spoken  of  the  U.  S.  Land 
Office — ^United  States  v.  Peuschel,  115  Fed. 
649. 

9.  Assignments  were  not  copied  Into 
brief — Hollywood  v.  Welihausen  (.Tex.  Civ. 
App.)  68  S.  W.  329. 

19.  Davis  V.  Huber  Mfg.  Co.  (Iowa)  93 
N.   TV.   7S. 

11.  Pugh  Co.  V.  "Wallace,  198  IIL  422. 

12.  Schleissner  v.  Schleissner,  72  App.  Dlv. 
(N.  T.)   492. 

13.  Schleissner  v.  Schleissner,  72  App.  Dlv. 
(N.  Y.)    492. 

14.  United  States  v.  Peuschel,  116  Fed. 
649. 

15.  Sawdey  v.  Spokane  Falls  &  N.  P.-  Co., 
27  TVash.  536.  67  Pac  10&4. 

16.  Savdey  v.  Spokane  Falls  &  X.  R.  Co., 
27   Wash.   535,  67  ^ac.   1054. 

17.  Sawdey  v.  Spokane  Falls  &  N.  R.  Co., 
27  "Wash.  536.  67  Pac  1094. 

IS.     Daum  v.  Cooper.  200  IIL  538. 

19.  Appeal  from  an  order  for  jndgment 
notTTlthstanding  exceptions  is  so  when  no 
new  points  other  than  the  frivolous  excep- 
tions are  raised — ^Williams  v.  Clarke.  182 
Mass.  316.  Appeal  from  order  releasing-  bond 
for  an  injanction  which  appellant  consented 
shonld  be  dissolved — ^Kraeger  v.  "Wamock, 
114  X.  T.  St.  Rep-  687.  Appellant  had  been 
party  in  another  appeal  ivhich  he  allo-wed 
to  become  conclusive  against  him  so  that 
In  any  event  an  affirmance  would  have  been 
niade^Ledebuhr  v.  Krueger  ("Wis.)  91  X.  "W. 
1012.  Election  held  before  review  of  man- 
damus to  place  name  on  official  ballot — State 
T.  Lambert  fW.  "Va.)  43  S.  E.  176.     Refusal  of 


mandamus  to  compel  taking  of  forthcomings 
bond  in  replevin  w^hich  Tras  decided  for 
plaintiff  on  the  main  issue — Alabama  Coal 
Co.  ▼.  Bowden  (Fla.)  31  So.  820.  Second  ap- 
peal rested  on  tax  deed  declared  void  by 
first  appeal — ^Winbome  v.  Hughey  (Fla.)  33 
So.  248.  Appeal  from  interlocutory  judgment 
which  has  become  merged  in  final  judgment 
not  appealed  from — "Wallace  v.  I>eane  (Idahot 

69  Pac  62.  Reversal  of  judgment  on  ^rhlch 
the  appealed  controversy  ^ras  founded — Mc- 
GiU  V.  Bartman  (Ky.)  68  S.  "W.  1100.  On  ap- 
peal from  a  remand  in  habeas  corpus  it 
appeared  that  relator  -was  no  longer  in  cus- 
tody— Ex  parte  "Wolston  (Tex.  Crim.)  68  S. 
"W.  679. 

ae.  Repeal  of  fne  act  assailed  by  appeal 
on  ^rhich  judgment  was  "nased  ((Seneral  Rev- 
enue   Law) — State    Board    v.    People    (Colo.) 

70  Pac  416.  Refusal  to  issu*  license  for  a 
period  since  elapsed — State  v.  Martin  (Fla.) 
32  So.  926.  Expiration  of  term  of  tenancy 
sought  to  be  enforced — Sullivan  v.  (3arvey 
(Iowa)  92  N.  "W.  672.  Obedience  to  writ  of 
mandamus  appealed  from — Carouse  v.  Xixon. 
65  Kan.  843.  70  Pac  885.  Expiration  of  offi- 
cial term  of  parties  before  submission  of 
appeal  from  impeachment  proceedings — ^King^ 
V.  TUfordL  24  Ky.  Law  Rep.  1270.  Questions 
become  moot  by  delay — Conn  ▼.  Deshsu  24 
Ky.  Law  Rep.  1400. 

21.  Settlement  of  controversy — ^Thomson - 
Houston  Elec  Co.  ▼.  Nassau  Elec  R,  Co.  (C 
C:.  A)  119  Fed.  354;  W^edeklnd  v.  Bell.  26 
Xev.  395,  69  Pac  612. 

22.  HarweU  ▼.  Martin,  115  <3a.  156. 

23.  Further  specifications  after  demurrer 
to  petition  for  removal  of  an  administrator — 
"Wirth  V.  "Winh,  181  Mass.  54L 


DISMISSAL  OF  APPEAL, 


151 


dismissible,^*  and  the  doing  of  an  act  commanded  but  without  intent  to  obey  a 
mandamus  is  not  necessarily  cause  for  dismissal. ^^ 

Abandonment  or  failure  of  prosecution.'^ — Failure  to  file  the  record,^^  or  tak- 
ing a  second  appeal,^*  is  not  an  abandonment. 

Anij  substantial  defect  in  or  want  of  jurisdiction,^^  or  in  the  remedy  for  re- 
view,'""^  or  prematurity,^^  or  undue  delay,^*  as  in  bringing  up  the  record  or  tran- 
script case,  etc.,^^  or  in  assigning  errors,^*  or  presenting  briefs  ;^^  also  any  failure 
in  respect  to  the  bond,  if  it  be  jurisdictional/®  or  any  error  of  substance  in  the 


34.     In  re  Hutton's  Estate,  92  Mo.  App.  132. 

25.  Act  was  done  in  ordinary  course  of 
business — State  v.  Sunset  Tel.  Co.,  30  Wash. 
67G.   71   Pac.   198. 

26.  An  affirmance  may  result  from  want 
of  prosecution  or  delay  in  perfecting  appeal 
— Burnes  v.  American  Brg.  Co.  (Mo.  App.) 
70  S.  \^^  512;  Alexander  v.  Wilson  (Mo.  App.) 
69  S.  W.  602.  See,  also,  the  paragraph  fol- 
lowing.  "Any  substantial  defect,"  etc. 

27.  Burdett  v.  Dale,   95  Mo.  App,  511. 

28.  Drexel  v.  Rochester  L.  &  B.  Co.  (Neb.) 
91  N.  W.  254.  But  see  ante,  §  10,  to  the  effect 
that  tardy  bringing  up  of  the  transcript  or 
"record"  may  entail  a  dismissal. 

29.  Fitch  V.  Long,  29  Ind.  App,  463;  Hob- 
son  V.  Hobson  (Va.)  40  S.  E.  899;  Nobles  v. 
Bernet  (La.)  33  So,  313.  Want  of  finality  in 
judgment:  Writs  of  error  to  the  supreme 
court  from  two  decisions  of  the  circuit  court, 
one  affirming  and  tlie  other  reversing  and 
remanding,  on  a  cross  writ  of  error,  the  sam'e 
judgment  of  the  circut  court  will  be  dis- 
missed because  there  is  no  finality  in  either 
decision  of  the  circuit  court  of  appeals — 
Montana  Min,  Co.  v.  St.  Louis  M.  &  M.  Co.,  186 
U.  S.  24,  46  Law.  Ed.  1039.  Direct  appeal 
from  order  reviewable  only  with  final  judg- 
ment— Mahoney  v.  Elliott  (Idaho)  69  Pac. 
108. 

A  writ  of  error  will  not  be  dismissed  be- 
cause one  has  brought  two  orders,  one  of 
which  cannot  be  reviewed.  Interlocutory 
ruling  and  ruling  on  order  for  new  trial — 
Dodson,  etc,  Co.  v.  Harris,  114  Ga.  966. 

See,  also,  ante,  §  4,  as  to  what  judgments 
are  final.  Lack  of  jurisdictional  amount— 
Booher  v.  Wisner,  65  Kan.  860,  70  Pac.  581. 
Jurisdictional  amount  made  up  of  partly  fic- 
titious items — Johnson  v.  Hosmer,  108  La. 
697.  Claim  of  damages  obviously  inflated  to 
reach  jurisdictional  amount — Marshall  v. 
Schneider  (La.)  33  So.  572.  Mandamus  dis- 
missed where  amount  did  not  appear — State 
V.  Police  Jury  (La.)  33  So.  308.  Defect  of 
parties — Booher  v.  Wisner,  65  Kan.  860,  70 
Pac.  581;  Anderson  v.  Laurent  (Fla.)  33  So. 
23  7.  Purchasers  at  sale,  confirmation  of 
which  was  appealed  from,  not  made  parties — 
Phillips  V.  Keel,  24  Ky.  Law  Rep,  1752.  Fail- 
ure to  bring  in  as  parties  to  appeal  those  who 
appeared  and  pleaded  below  without  objec- 
tion, though  not  entitled  to  do  so — Small  v. 
Edwards,  65  Kan.  858,  69  Pac.  165. 

If  another  appeal  be  already  pending,  the 
latter  one  will  be  dismissed — Da  Costa  v. 
Dibble  (Fla.)  33  So,  466.  Error  after  appeal 
taken  but  not  perfected  dismissed — Burdett 
V.  Dale,  95  Mo.  App,  511.  Defective  process 
or  procedure  to  transfer  cause:  Defective 
order  for  appeal — Hughes  v.  Henderson,  95 
Mo,  App,  312.  Delay  in  issuing  scire  facias 
to  defendants  in  error — Solary  v.  Weed 
(Fla.)  32  So  779.  It  Is  sufficient  if  one  only 
of  respondent's  attorneys   be   served   in   time 


— Sherman  v.  Luckhardt  (Mo.  App.)  70  S.  W. 
388. 

No  entry  below  nor  appearance  above — 
Ropes  V.  Kemps  (Fla.)  33  So.  244.  Want  of 
formal  petition  for  writ  of  error  is  not  sub- 
stantial if  the  issuance  of  the  writ  has  been 
necessarily  approved  by  later  orders — Alaska 
United  Min.  Co.  v.  Keating  (C.  C.  A.)  116  Fed. 
561,  Notice  not  given  within  statutory  time 
— Southern  Cal.  R,  Co.  v.  Slauson  (Cal.)  68 
Pac.  107.  Irregularities  not  causing  uncer- 
tainty not  sufficient — Bendich  v.  Scobel,  107 
La.  242. 

30.  See  ante,  §  2.  Bringing  appeal  in- 
stead of  error — Bailey  v.  O'Fallon  (Colo.)  70 
Pac.  755;  Colorado  F,  &  I.  Co.  v.  Knudson 
(Colo.  App.)   70  Pac.  698. 

31.  McVey  v.  Barker,  92  Mo.  App.  498. 

32.  Hatton  v.  Hatton.  136  Cal.  353,  68  Pac. 
1016;  Schatzlein  Paint  Co,  v.  Passmore,  26 
Mont.  500,  68  Pac.  113.  Tardy  filing  of  oath 
for  appeal  is  ground  unless  appeal  be  per- 
fected by  proper  proceedings  on  leave  of 
court — Jones  v.  Ducktown  S.  C.  &  I.  Co. 
(Tenn.)  71  S.  W.  821.  Tardy  recording  of 
writ  of  error — Florida  Cent,  &  P.  R.  Co.  v. 
Peacock  (Fla.)  33  So.  247.  Six  months'  un- 
necessary delay  to  procure  a  substitute  for  a 
deceased  trustee  party  and  to  bring  in  the 
substituted  trustee  after  his  appointment  was 
held  inexcusable,  and  dismissal  ordered  for 
want  of  parties — Hays  v.  Pugh,  158  Ind.  500, 
Affirmed  for  failure  to  properly  perfect  or 
prosecute  an  appeal — Burnes  v.  American 
Brg.  Co.  (Mo.  App.)  70  S,  W.  512;  Alexander 
V.  Wilson  (Mo.  App.)   69  S,  W.  602. 

33.  Record  not  brought  up  at  the  return 
term  of  writ  of  error — Rush  v.  Connor  (Fla.) 
32  So.  796.  No  transcript  filed  within  90 
days — Potts  v.  Watkins  (Ind.  Ter.)  69  S.  W. 
820.  Delay  may  be  waived  by  submitting  on 
the  merits — Edwards  v.  Logan,  24  Ky.  Law 
Rep.  678;  Taylor  v.  Colorado  Iron  W'ks,  29 
Colo.  372,  68  Pac.  218. 

34.  Aetna  Life  Ins.  Co.  v.  Sanford,  197  111. 
310.  Fifteen  days'  delay  In  filing  amended 
asignments  after  motion  to  affirm  for  in- 
sufficient assignments  and  until  the  day  of 
submission  is  unreasonable — Stienblock  v. 
Johns   (Iowa)   93  N.  W.  595. 

35.  Headstrom  v.  Hellieson,  13G  Cal.  498, 
69  Pac.  148;  Robertson  v.  Shorow  (Wyo.)  69 
Pac.  1.  In  Georgia  tardiness  in-  filing  briefs 
is  contempt  but  not  ground  for  dismissal — 
Roberts  v.  Roberts,  115  Ga.  259,  Failure  to 
file  briefs — Brevaldo  v,  Rogers  Co.  (Fla.)  33 
So.  455;  Pavey  v.  Pavey,  103  111.  App.  589; 
Bowman  v.  Hoffman  (Tex.  Civ.  App.)  67  S. 
W.  152.  Defects  in  briefs,  see  ante,  this  sec- 
tion,— "Briefs  and  Arguments." 

36.  Patterson  v.  Davis,  24  Ky.  Law  Rep. 
842.  Want  of  good  sureties — David  v.  Guich, 
30  Wash.  266,  70  Pac.  497.  Not  of  the  statu- 
tory penalty — Loy  v.  Coey  (Wash.)  71  Pac. 
552.       Deficiency    in    amount — Loy    v.    Coey 


152 


APPEAL  AND  REVIEW. 


"record,"  "transcript,"  "assignment,"  "briefs,"  or  the  like," — will  ordinarily  war- 
rant and  often  necessitate  a  dismissal. 

The  United  States  supreme  court  will  dismiss  proceedings  based  on  federal 
questions  only  when  such  questions  are  frivolous  or  trifling.^* 

Matters  prior  to  the  order  appealed  are  not  cause  for  dismissal.^" 
Omission  of  that  which  it  is  an  officer's  duty  to  supply  is  not  chargeable  to 
appellant,"  nor  is  an  amendable  defect,*^  or  an  excusable  delay,^-  or  condition  due 
to  the  opposite  party's  action,*^  good  cause.     If  a  bond  be  such  that  appellant  could 


(Wash.)  71  Pac.  552.  Appeal  is  good  if  bond 
suffices  to  bring-  up  though  not  to  suspend 
judgment — Mestier  &  Co.  v.  Chevalier  Pav. 
Co.,  108  La.  562. 

The  want  of  a  supersedeas  to  a  judgment 
containing  an  injunctional  order  is  not  im- 
portant unless  that  order  is  complained  of 
— Linder  v.  Whitehead  (Ga.)  42  S.  E.  358. 

Code  March  16,  1895,  providing  that  a  new 
•"appeal  bond"  may  be  ordered  in  default  of 
which  execution  may  issue,  means  a  new 
staj'  bond,  and  the  failure  to  provide  one  is 
not  ground  for  dismissal — Mersfelder  v. 
Spring,  136  Cal.  619,  69  Pac.  251.  Mere  ir- 
regularities not  impairing  security  not  suffi- 
cient— Colburn  v.  Seymour,  29  Colo.  292,  68 
i'ac.   219. 

37.  Omission  to  page  and  index  a  record 
containing  numerous  alleged  errors — Empor- 
ia V.  Kowalski,  65  Kan.  772,  70  Pac.  863. 
No  index  or  statement  of  question,  incom- 
plete appendix,  and  improper  certification 
and  assignments — Sailor  v.  Reamer,  20  Pa. 
Super  Ct.  597.  Want  of  marginal  notes — 
Brinkley  v.  Smith,  130  N.  C.  224.  There  is  no 
substantial  variance  between  the  name  of 
a  corporation  party  and  the  same  name  omit- 
ting the  word  "Limited"  with  the  name  of 
the  corporate  domicile — Palatine  Ins.  Co.  v. 
Dickerson  (Ga.)  43  S.  E.  52.  Failure  to  file 
notice  of  schedule  of  record  for  appeal — 
McHargue  v.  Reams,  24  Ky.  Law  Rep.  1385. 
Failure  to  assign  errors  in  briefs  as  required 
by  court  rules — Driscoll  v.  Shields,  26  Mont. 
494,   68  Pac.  851. 

Want  of  abstract — Brumback  v.  McAuley 
(Mo.  App.)  68  S.  W.  240.  No  abstract  or  rec- 
ord except  a  book  so  styled  but  not  verified 
• — Westheimer  v.  Mclnerny  (Mo.  App.)  67  S. 
"W.  725.  Failure  to  file  abstract  containing 
pleadings  or  the  substance  tiiereof.  or  state- 
ment of  case,  or  showing  that  a  bill  of  ex- 
ceptions had  t  ^en  filed — Ladd  v.  Williams 
(Mo.  App.)  72  S.  W.  475.  Omissions  from 
transcript  record  or  paper  book:  Pleadings 
and  record  entries  were  in  bill  of  exceptions 
only — Faulkner  v.  Hutchins  (Ind.  Ter.)  69 
S.  W.  867.  Certificate  to  evidence,  statement 
of  question,  and  evidence  itself  were  lack- 
ing— Herlehy  v.  Shrader,  20  Pa.  Super.  Ct. 
43S.  Paper  book  contained  no  statement  of 
question,  assignment,  or  exceptions — Manley 
v.  Okell,  19  Pa.  Super.  Ct.  240.  Failure  in 
any  way  to  preserve  ruling  on  evidence  and 
the  evidence  itself  in  the  record — Richardson 
V.  McConanghey  (W.  Va.)  4  3  S.  E.  124.  Fail- 
ure to  show  filing  of  bill  of  exceptions — 
Westheimer  v.  Mclnerny  (Mo.  App.)  67  S. 
W.  725.  Omission  of  evidence  not  fatal, 
when  findings  can  be  supported  by  presump- 
tion in  favor  of  its  sufficiency — Casey  v.  Gib- 
bons, 136  Cal.  368,  68  Pac.  1032.  Omissions 
must  be  such  as  to  influence  decision — Ben- 
dich  v.  Scobel.  107  La.  242.  Failure  to  in- 
clude   notice    of    motion    for    new    trial    not 


cause  to  dismiss — Madigan  v.  Harrington,  26 
Mont.  358,  67  Pac.  1121.  Matters  omitted 
from  transcript  at  appellant's  instance  after 
court's  direction  to  include  them — Finch  v. 
Strickland,  130  N.  C.  44.  Insufficient  certifi- 
cate of  evidence — Madden  v.  Kinney,  114  Wis. 
528.  Improper  certification  of  transcript — 
Hart  V.  Gotten  (Fla.)  31  So.  817.  Omission 
to  show  the  judg^ment  complained  of — Biles 
V.  Beadle  (Mo.  App.)  71  S.  W.  465;  Jones  v. 
Miller  (Neb.)  89  N.  W.  598.  Of  two  interlocu- 
tory orders  one  was  not  taken  in  time  and 
the  other  was  not  in  the  transcript — Mattair 
V.  Furchgott   (Fla.)   32  So.   925. 

Omission  of  order  on  contested  application 
for  leave  to  appeal  without  paying  costs — 
Majors  v.  Goodrich  (Tex.  Civ.  App.)  68  S.  W. 
290. 

38.  Claim  of  title  under  Spanish  grant 
confirmed  by  treaty  ar.d  patent  not  frivolous 
— Mobile  Transp.  Co.  v.  Mobile.  187  U.  S.  479. 
Will  be  dismissed  if  question  is  settled — 
Equitable  Life  Soc.  v.  Brown,  187  U.  S.  308, 
or  if  case  was  decided  on  other  grovnds — 
New  York  Cent.  R.  Co.  v.  New  York,  186  U. 
S.  269,  46  Law.  Ed.  1158. 

39.  Premature  notice  of  motion  for  new 
trial — Bell  v.  Staacke,  137  Cal.  307,  70  Pac. 
171. 

40.  Certificate  to  bill  of  exceptions  was 
not  in  legal  form  (Civ.  Code,  §  5534) — Scott 
V.  Whipple  (Ga.)  42  S.  E.  519.  Delay  in  giv- 
ing notice  of  appeal  attributable  to  officers 
and  not  to  appellant — Martin  Mach.  Works 
V.   Miller,   132  Ala.    629. 

41.  In  appeal  bond,  unless  appellant  was 
in  bad  faith — Watier  v.  Buth,  87  Minn.  205. 
Under  laws  permitting  amendment  of  the 
bond,  omission  of  a  co-appellant  to  sign  it 
is  not  ground  to  dismiss,  if  they  promptly 
move  to  file  a  new  bond — Engel  v.  Atkin- 
son  (Colo.  App.)    71  Pac.   683. 

42.  Court  of  Appeals  Rules  11  and  12  in 
Colorado  do  not  require  a  dismissal  for  de- 
lay in  filing  assignments  if  there  is  an  ex- 
cuse and  no  prejudice  has  resulted — Moyna- 
han  V.  Perkins  (Colo.  App.)  68  Pac.  1062. 
Tardy  filing  of  assignment  not  ground  for 
dismissal  in  Colorado,  if  there  was  an  ex- 
cuse— Moynahan  v.  Perkins  (Colo.  App.)  68 
Pac.  1062.  Pendency  of  application  for  re- 
hearing of  order  extending  time  for  cita- 
tion is  no  excuse  since  rehearing  does  not 
lie — Gagneaux  v.  Desonier  (La.)  33  So.  561. 
Appellant  not  at  fault  for  failure  to  settle 
bill  of  exceptions — Crooks  v.  Crooks.  136 
Cal.  xix.,  68  Pac.  101.  Excuses  for  tardiness 
in  filing  briefs — State  Board  v.  People.  29 
Colo.  353.  68  Pac.  236;  Gipson  v.  Morris  (Tex. 
Civ.  App.)  67  S.  "W.  433;  Headstrom  v.  Hellie- 
son,  136  Cal.  498,  69  Pac.  148:  Bowman  v. 
Hoffman  (Tex.  Civ.  App.)  67  S.  W.  152;  Rob- 
ertson V.  Shorow   (Wyo.)    69   Pac.   1. 

43.  It  is  not  a  failure  to  perfect  when  the 


MOTIONS  AND  PLEAS. 


153 


not  escape  liability  because  of  its  defects,  it  is  not  so  defective  in  form  or  sub- 
stance as  to  render  the  appeal  ineffectual  and  therefore  dismissible.**  Failure  to 
except  to  findings  is  not  important  unless  contentions  are  based  on  them.*"  The 
appellee  cannot  complain  that  no  evidence  is  in  the  record  to  support  findings  in 
his  favor.*® 

H.  Raising  and  waiver  of  defects  in  appellate  procedure;  motions  and  pleas. — 
The  appellate  court  alone  may  hear  objections  and  dismiss  a  regular  appeal;*^  for 
example,  that  an  appeal  is  frivolous  and  dilatory.*® 

An  objection  is  premature  when  before  the  time  to  bring  up  the  record  a  non- 
appealing  party  complains  of  alleged  failure  to  serve  him.*^  Objections  must  be 
raised  before  even  a  qualified  submission  on  the  merits/"  and  are  defeated  when 
the  error  is  cured  before  moving  ;^^  but  a  motion  to  dismiss  cannot  be  defeated 
by  doing  a  jurisdictional  act  after  the  time  has  expired,^^  and  an  abortive  motion 
is  ineffectual  to  cut  off  the  time  for  doing  any  requisite  tiling.^*  A  settlement  will 
be  cause  for  dismissal  even  after  submission.-^*  Under  a  rule  permitting  appellee 
to  move  to  docket  and  dismiss  if  the  transcript  be  tardy,  such  motion  may  be  at 
any  time  before  the  transcript  is  docketed,^^  and  if  no  case  has  been  settled  so 
as  to  permit  a  timely  docketing,  a  dismissal  can  be  averted  by  docketing  so  much 
as  is  obtainable  and  by  making  affidavit  and  moving  for  certiorari.^® 

A  general  appearance .  does  not  waive  delay  in  applying  for  leave  to  appeal, 
but  such  objection  is  too  late  after  submission.^^ 

One  who  has  opposed  a  motion  for  leave  to  correct  an  irregularity  should  not  be 
heard  on  a  motion  to  dismiss  for  such  irregularity.^®  Plaintiff  caimot  say  that 
a  defendant  whom  he  sued  lacks  an  appealable  interest.*^' 

Defective  assignments  may  be  waived  by  proceeding  to  argument,®"  or  omit- 
ting to  raise  the  question.®^  Filing  briefs  does  not  waive  an  objection  that  a 
former  appeal  is  pending.®^     Failure  to  provide  copies  of  abstract  may  be  waived 


failure  of  a  surety  to  justify  is  attributable 
to  exceptions  filed  by  the  objecting  party — 
Klingler  v.  Henderson,  137  Cal.  561,  70  Pac. 
617.  If  the  duty  is  peremptory  (to  bring 
up  a  transcript)  it  is  of  no  moment  that  ap- 
pellant would  have  been  obliged  to  advance 
fees  chargeable  to  the  opposite  party — King 
V.   Norton,    36   Misc.   Rep.    (N.   Y.)    53. 

44.  Bond  signed  only  by  the  surety  was 
joint  and  several  in  form  and  principal  held 
estopped   to    deny    it — Bloomingdale    v.   Weil, 

29  Wash.  611,  70  Pac.  94. 

45.  Cathcart  v.  Bryant,  28  Wash.  31.  68 
Pac.  171.  Exceptions  not  necessary  unless 
error  is  urged — Cathcart  v.  Bryant,  28  Wash. 
31,   68   Pac.   171. 

46.  Berry  v.   Rood,   168  Mo.   316. 

47.  Spindler  v.  Gibson,  72  App.  Div.  (N. 
Y.)    150. 

48.  Southern  B.  &  L.  Ass'n  v.  Carey,  117 
Fed.   325. 

40.     First  Nat.    Bank   v.   Gordon  Hdw.   Co., 

30  Wash.  127,  70  Pac.  251. 

50.  Leave  was  reserved  to  file  briefs — 
Edwards  v.  Logan,   24  Ky.   Law  Rep.   678. 

51.  Transcript,  not  filed  before  briefs,  was 
filed  before  motion — Johnson  v.  San  Juan 
Fish  Co.,  30  Wash.  162,  70  Pac.  254.  Filed 
before  motion  and  no  prejudice  resulted — 
Perkins  v.  Boyd  (Colo.  App.)  68  Pac.  1062. 
In  North  Carolina,  under  the  rules,  a  tran- 
script, though  not  in  time,  will  prevent  a 
dismissal    if    docketed    before    a    certificate 


and  motion  to  dismiss — Benedict  v.  Jones, 
131  N.  C.  473.  If  a  defect  in  the  abstract 
has  been  supplied  by  a  certification  of  rec- 
ord, dismissal  will  be  refused — Beale  v.  Pat- 
terson (Iowa)  93  N.  W.  594.  In  Montana 
(Code  Civ.  Proc.  §  1740)  an  objection  to  an 
appeal  bond  as  being  joint  is  averted  by 
filing  a  proper  undertaking  before  hearing 
of  motion  to  dismiss — Hayes  v.  Union  Merc. 
Co.   (Mont.)   70  Pac.   975. 

52.  Filing  new  bond  for  appeal — David 
v.  Guich,  30  Wash.   266,  70  Pac.  497. 

53.  Filing  briefs — Swortfiguer  v.  White, 
137  Cal.  391,   70  Pac.  214. 

54.  Wedekind  v.  Bell,  26  Nev.  395.  69  Pac. 
612. 

55.  Worth  v.  Wilmington,  131  N.  C.   532. 

56.  Worth  v.  Wilmington,  131  N.  C.  532. 

57.  Roseberry  v.  Valley  B.  &  L.  Ass'n 
(Colo.  App.)  68  Pac.  1063;  Wabash  R.  Co.  v. 
People,  196  111.  606. 

58.  Issuing  writ  of  error  before  assign- 
ments are  filed — Alaska  United  Min.  Co.  v. 
Muset   (C.  C.  A.)   114  Fed.  66. 

.•>9.  State  V.  Cranney,  30  Wash.  594,  71 
Pac.   50. 

60.  Not  ground  for  dismissal  if  amended 
and  questions  specifically  argued  by  both 
sides — Roberts  v.  Parker  (Iowa)  90  N.  W. 
744. 

61.  Orcutt  v.  McNair  (Neb.)   92  N.  W.  200. 

62.  Burdett  v.  Dale,  95  Mo.  App.  511. 


154 


APPEAL  AND  REVIEW. 


by  proceeding  to  reply  to  the  brief.^^  Want  of  citation  cannot  be  raised  after 
other  grounds  are  urged.** 

The  same  grounds  should  not  be  urged  on  a  second  motion/"*  but  a  motion 
may  be  renewed  to  a  cause  reinstated  as  on  error  after  dismissal  on  appeal.^® 

Bow  presented. — Wlien  a  defect  is  amendable,  motion  should  be  made  in  the 
appellate  court  for  a  rule  to  amend  before  moving  for  dismissal.®^  The  destruction 
or  extinguishment  of  the  subject-matter  of  an  appealed  action  should  be  presented 
by  a  proper  plea  in  Kentucky.*®  The  coart  will  dismiss  of  its  own  motion  for 
want  of  jurisdiction.*® 

A  plea  in  abatement  for  facts  of  record  or  not  in  dispute  should  be  so  made 
as  to  raise  an  issue  of  law.'^° 

Motion  should  be  on  notice,'^  and  in  time.'^  Grounds  should  be  specific.^* 
Only  necessary  matters  will  be  heard;'*  appealability  and  suflBciency  of  the  pro- 
ceedings for  appeal  being  the  usual  questions.^^ 

The  court  may  judicially  notice  want  of  jurisdiction  and  dismiss  the  appeal.'" 
The  rules  differ  as  to  whether  information  outside  the  record  may  be  taken  by 
the  court  on  such  a  motion.''^  An  assignment  shown  by  the  record  to  he  sufficient 
will  be  sustained  as  against  affidavits  of  fraud."  If  an  omitted  proceeding  is  nec- 
essary only  in  certain  circumstances,  those  circumstances  must  be  shown.''® 

Proper  mode  of  disposing  of  cause;  dismissal  or  pro  forma  decree. — An  appeal 
will  be  stricken  for  want  of  jurisdiction.**  If  there  is  a  want  of  jurisdiction,  a 
co-plaintiff  in  error  cannot  obtain  a  dismissal  leaving  the  cause  stand  in  the  other 
one's  name.®^  If  satisfied  that  an  appeal  is  frivolous,  it  will  be  dismissed  rather 
than  to  grant  a  supersedeas  or  extend  the  time  to  file  briefs.^^^ 

An  affirmance  may  result  from  defects  of  the  record  not  sufficient  for  dis- 
missal,*^ or  defects  of  the  brief.** 


G3.     Carter  v.  DiUey,  167  Mo.  564. 
R4.     It  was  last  in  order  of  the  objections 
— Vallee  v.  Hunsberry,   108   La.   136. 

65.  Levy  v.  Levy,  107  La.  576. 

66.  Taylor  v.  Colorado  Iron  Works,  29 
Colo.   372.    6S   Pac.   218. 

67.  Defective  bond — In  re  Gannon's  Es- 
tate  (Neb.)    89  N.  W.  1028. 

68.  McGill  V.  Bartman  (Ky.)  68  S.  TV. 
1100. 

69.  Fitch  V.  Long,  29  Ind.  App.  463;  Hob- 
son  V.  Hobson  (Va.)   40  S.  E.  899. 

70.  Sanford  v.   Bacon    (Conn.)    54  Atl.   204. 

71.  Rule  23  of  Court  of  Appeals — Shan- 
non V.  Padgett,  24  Ky.  Law  Rep.  1281;  Carr 
V.  General  Inc.  Light  Co..  37  Misc.  Rep.  (N. 
T.)  837.  Notice  referring  to  other  papers 
held  to  sufficiently  state  grounds — Bell  v. 
Southern  Pacific  R.  Co.,  137  Cal.  77,  69  Pac. 
692. 

72.  In  Alabama  motion  to  dismiss  for  de- 
lay in  filing  transcript  must  be  made  be- 
fore Thursday  following  the  default — Mar- 
tin Mach.  Works  v.  Miller  (Ala.)  32  So.  305. 
For  defect  in  order  of  appeal  within  three 
days  after  filing  transcript — Vallee  v.  Huns- 
berry,  108  La.   136. 

73.  Objections  to  bond — McSweeney  v. 
Blank,  107  La.   292. 

74.  Unnecessary  question  of  waiving  as- 
signment of  error — Board  of  Com'rs  v.  ShafC- 
ner   ("Wyo.)   68  Pac.  14. 

75.  In  re  Davis'  Estate,  27  Mont.  235,  70 
Pac.   721. 

70.  Less  than  $2000  in  dispute — Salles  v. 
Jacquet.    108   La.   107. 

77.  Jurisdictional  amount  in  controversy 
cannot     be     proved     by     affidavit — Smith     v. 


American  Monument  Co.  (Ind.)  65  N.  E.  524. 
Affidavits  receivable  to  show  whether  mov- 
ing party  who  had  disclaimed  and  been  de- 
faulted was  necessary  to  the  appeal — First 
Nat.  Bank  v.  Gordon  Hdw.  Co.,  30  Wash. 
127,  70  Pac.  251.  A  statute  authorizing  a 
disposition  of  a  cause  on  appeal  does  not 
include  dismissal  for  settlement  after  ap- 
peal not  shown  by  the  record — In  re  Hut- 
ton's  Estate,  92  Mo.  App.  132.  The  fact  that 
the  controversy  has  ceased  since  appeal 
must  appear  on  the  record — White  Crest 
Canning  Co.  v.  Sims,  29  Wash.  389,  69  Pac. 
1094. 

78.  Smith  Co.  v.  Williams,  29  Ind.  App. 
336. 

79.  If  decision  was  made  In  September 
and  appeal  taken  in  February,  party  must 
show  that  it  was  at  a  subsequent  term  of 
court  in  order  to  dismiss  for  want  of  cita- 
tion— Succession    of   Hoyle    (La.)    33    So.    625. 

Dismissal  not  made  when  fact  of  waiver 
of  citation  is  certified  by  clerk  and  denied 
by  counsel's  affidavit — Gagneaux  v.  Desonier 
(La.)    33   So.   561. 

80.  Defective  order  for  appeal — Hughes 
V.  Henderson,   95  Mo.  App.   312. 

81.  Center  v.  Fickett  Paper  Co.  (Ga.)  43 
S.   E.    498. 

82.  Knight  v.  West  Coast  N.  S.  Co.  (Fla.) 
33  So.  450. 

S3.  Mere  Incomplete  record  works  affirm- 
ance but  not  dismissal — Poage  v.  Smith,  101 
111.  App.  261.  Failure  to  include  notice  of 
motion  for  new  trial — Madlgan  v.  Harring- 
ton, 26  Mont.  358,  67  Pac.  1121. 

84.  W^arren  v.  Humble,  26  Mont.  495.  68 
Pac.   851;   Pavey  v.   Pavey,   103   111.   App.   689. 


MODE  OF  REVIEW. 


155 


A  dismissal  -will  not  be  allowed  as  to  one  party,  where  others  have  appealed 
and  an  examination  of  the  entire  record  would  be  necessary  on  the  motion.^^ 

Rehearing. — Eefusal  to  dismiss  and  allowance  of  extension  cf  time  in  which 
to  cite  parties  is  interlocutory  and  hence  not  open  to  a  rehearing  under  the  Louisi- 
ana practice.^® 

§  12.  Hearing. — The  regulation  of  hearings  is  largely  discretionary  and  ac- 
cording to  rules  of  court.  If  the  hearing  be  de  novo,  preliminary  issues  may  be 
first  determined.  ^■^  An  appellee  in  divorce  who  remarries  pending  appeal  will  not 
be  heard. *^ 

§  13.  Revieiv.  A.  Mode  of  review;  review  proper  or  trial  de  novo.^^ — An 
equity  appeal  brings  the  case  up  for  trial  de  novo.®"  An  action  transferred  with- 
out cause  from  the  law  to  the  equity  side  of  the  court  must,  nevertheless,  be  tried 
de  novo."^  Whether  a  cause  is  legal  or  equitable  depends  on  the  theory  used  at 
trial.^2  It  will  be  assumed  that  an  action  was  tried  at  law,  where  it  appears  that 
it  was  for  recovery  of  money  only  and  was  brought  for  trial  and  tried  at  the  law 
term.^3  Divorce  cases  are  reviewed  as  equity  causes.®*  Appeals  from  surrogates 
and  courts  of  probate  are  usually  de  novo,®^  though  defenses  below  may  in  some 
states  be  disregarded.®"  A  party  may  be  concluded  by  failure  to  appeal  as  to  cer- 
tain issues.®^  On  appeal  from  a  surrogate  to  the  appellate  court,  a  reference  may 
be  had  to  settle  a  particular  issue  of  fact,  especially  where  it  appears  that  new 
and  important  testimony  may  be  produced.®^  Summary  proceedings  by  a  land- 
lord,®® appeals  in  eminent  domain  proceedings  to  the  court  of  general  Jurisdiction,^ 
and  appeals  from  county  boards  to  the  court  of  general  jurisdiction,^  are  also  usu- 
ally de  novo.  Eeview  of  applications  for  liquor  license  in  Pennsylvania  is  con- 
fined to  the  record.'     Ferry  proceedings  in  West  Virginia  are  reviewed  in  the  cir- 


In  Texas  the  civil  appeals  may,  where  the 
appellee  has  filed  a  brief  on  the  failure  of 
the  appellant  to  do  so,  affirm  upon  the  exam- 
ination of  the  record  merely  to  see  if  the 
judgment  can  be  sustained  according  to  ap- 
pellee's view— Ball  v.  Dig-nowity  (Tex.  Civ. 
App.)    68  S.  W.   800. 

85.  Mestier  &  Co.  v.  Chevalier  Pav.  Co., 
108  La.  562. 

86.  Gagneaux  v.  Desonier  (La.)  33  So. 
561. 

87.  Question  of  heirship  to  determine  liti- 
gant's interest  preliminary  to  appeal  from 
distribution — Goff   v.    Britton,    182   Mass.    293. 

88.  Branch  v.  Branch   (Colo.)    71  Pac.   632. 

89.  See.  also,  ante,  §  2,  as  to  whether  ap- 
peal or  error  lies. 

90.  Riley  Bros.  v.  Melia  (Neb.)  92  N.  "W. 
913.  Erroneous  evidence  let  in  will  be  ig- 
nored— Washougal  &  L.  Transp.  Co.  v.  Dalles 
P.  &  A.  Nav.  Co.,  27  Wash.  490.  68  Pac.  74. 
Bill  cannot  be  amended  to  state  new  matter 
known  to  party — Jackson  v.  Thomson,  203 
Pa.   622. 

91.  Loetscher  v.  Dillon  (Iowa)  93  N.  W. 
98. 

92.  Highland  Boy  Gold  Min.  Co.  v.  Strick- 
ley  (C.  C.  A.)  116  Fed.  852;  see  also,  Hoo- 
ven,  Owens  &  Rentschler  Co.  v.  John  Feath- 
erstone's  Sons  (C.  C.  A.)  Ill  Fed.  81.  Case 
should  be  reviewed  as  one  at  law,  if  in 
that  form  and  tried  as  such — O'Melia  v. 
Hoffmeyer   (Iowa)    93  N.  W.   497. 

03.  German-American  Provision  Co.  v. 
Garronne    (N.   Y.)    73   App.   Div.   409. 

94.  Schuman  v.  Schuman,  93  Mo.  App.  99; 
McCann  v.  McCann,  91  Mo.  App.  1. 

95.  In  re  Wicke   (N.  T.)   74  App.  Div.   221; 


In  re  Cartright's  Will  (N.  J.  Eq.)  51  Atl. 
713;  Ansley  v.  Richardson,  95  Mo.  App.  332; 
Springfield  Grocer  Co.  v.  Walton,  Id.  526. 
Hearing  on  claims — Wencker  v.  Thompson's 
Adm'r    (Mo.   App.)    69   S.   W.    743. 

On  appeal  from  refusal  of  probate,  testi- 
mony other  than  that  of  subscribing  wit- 
nesses may  be  heard — In  re  Kohley's  Es- 
tate, 200  111.  189,  following  many  cases. 
On  appeal  from  settlement  of  administra- 
tor's account  common  pleas  may  either  take 
new  testimony  or  refer  anew — James  v. 
West  (Ohio)  65  N.  E.  156.  Excluded  evi- 
dence is  received — Buie's  Estate  v.  "White, 
94  Mo.  App.  367.  New  issues  excluded  on 
appeal  from  disallowance  of  claim  against 
decedent's  estate — Fitzgerald's  Estate  v. 
Union   Sav.   Bank    (Neb.)    90   N.   W.    994. 

96.  Thomson  v.   Black,    200   111.    465. 

97.  By  failure  to  appeal  from  allowance 
of  a  set-off  a  claimant  may  be  concluded  on 
appeal  as  to  that  much — Thorpe  v.  Thorpe's 
Estate    (Vt.)    52  Atl.   1051. 

98.  Under  Code  Civ.  Proc.  N.  T.  §  2586 — 
In  re  Pfarr's  Estate  (N.  Y.)  79  App.  Div. 
634. 

99.  An  affidavit  of  defense  may  be  made 
on  appeal — Harvey  v.  Clark  (Miss.)  32  So. 
906. 

1.  Northern  Pac.  R.  Co.  v.  Duncan,  87 
Minn.  91. 

3.     Mahoney  v.  Board   (Idaho)    69  Pac.  108. 

3.  In  re  Weaver's  License,  20  Pa.  Super. 
Ct.   95. 

4.  Ferry  proceedings  under  Code  1899,  c. 
39,  §§  47,  48,  and  §  14,  c.  112 — Sistersville 
Ferry  Co.  v.  Russell  (W.  Va.)   43  S.  E.  107. 


156 


APPEAL  AND  REVIEW. 


cuit  court  only  on  the  record  and  not  tried  by  jury.*  Titles  treating  of  special 
proceedings  should  be  consulted."* 

An  attempted  appeal  where  none  will  lie  may  be  regarded  as  a  certiorari  and 
the  review  restricted  accordingly.® 

B.  Scope  in  general. — Nothing  is  reviewed,  in  the  strict  sense  distinguished 
from  trial  de  novo,  unless  properly  saved  by  objection  and  exception,  or  unless 
apparent  on  the  record  itself.''  Assignments  and  specifications  sufficient  to  define 
issues  of  error  are  also  necessary,*  but  the  court  may  hear  questions  outside  the 
assignments  if  argued.^  In  considering  reserved  questions,  the  court  will  con- 
fine itself  to  objections  urged  in  the  briefs  and  arguments  of  counsel  where  the 
record  does  not  disclose  particular  matters  objected  to.^°  The  decision  should  be 
confined  to  the  issues,^^  and  questions  incident  to  them  are  not  withdrawn  from 
consideration  by  mere  admissions  as  to  matters  of  law.^^  An  order  in  equity,  the 
record  of  which  was  admitted  in  evidence  in  a  suit  at  law,  cannot  be  reviewed  on 
appeal  from  the  judgment.^^ 

Moot  questions  will  not  be  decided.^*  Unnecessary  points  will  not  be  consid- 
ered. Demurrers  will  not  be  separately  considered  where  the  conclusions  of  law 
present  the  same  questions.^^  On  appeal  from  a  verdict  given  defendant  because 
a  defense  of  res  judicata  was  determined  a  bar  by  the  jury,  no  other  questions  need 
be  considered. ^"^ 

Error  reaches  only  matter  of  law}'' — In  some  states,  sufficiency  of  evidence  as 
ground  for  reversal  is  examined  on  writs  of  error  as  well  as  appeal,^*  but  only  the 
sufficiency  of  facts  to  support  special  findings  will  be  reviewed  together  wii'h  the 
questions  of  law.^*  In  Nebraska,  rulings  on  evidence  cannot  be  reviewed  on  ap- 
peal,' but  only  by  petition  in  error,  and  the  supreme  court  will  pass  upon  the  com- 
petency of  evidence  in  determining  the  weight  as  supporting  the  decree.^"  The 
appellate  court  of  ^Missouri  will  not  pass  on  the  weight  of  evidence  in  action  for 
recovery  of  money.-^  Where  a  verdict  is  rendered  by  a  jury  without  objection 
of  either  party  as  to  the  mode  of  trial,  an  objection  cannot  be  urged  on  appeal  in 
Missouri  that  it  was  against  the  weight  of  evidence.-^     A  defect  apparent  on  the 


5.  See  Eminent  Domain,  Estates  of  De- 
cedents. Taxes.  Wills.  Trial  de  novo  on 
appeal  from  opening  or  vacation  of  high- 
ways,  see  Highways  and  Streets. 

6.  In  habeas  corpus — Commonwealth  v. 
McDougall.   203  Pa.  291. 

7.  See  Saving  Questions  for  Review. 
S.     See  ante,  §  11. 

9.  Lynch  v.  Syracuse  R.  Co.  (N.  Y.)  73 
App.  Div.   95. 

10.  Thompson  v.  Betts.   74  Conn.  576. 

11.  Hence  on  the  question  whether  there 
was  a  vendor's  lien  it  is  proper  to  find  no 
sale  though  not  pleaded — People  v.  Court 
of  Appeals  (Colo.)  69  Pac.  606.  If  he  bases 
his  right  to  recover  on  one  count  of  his 
petition,  his  rights  under  the  other  cannot 
be  considered — Overshiner  v.  Britton,  169 
Mo.   341. 

12.  Thus  that  a  contract  was  one  of  sale 
— People  V.  Court  of  Appeals  (Colo.)  69  Pac. 
606.  holding  also  that  there  was  no  practical 
construction  of  it. 

13.  Partlow  v.  Lickliter  (Va.)  42  S.  E. 
671. 

14.  Pennsylvania  Co.  v.  Walker,  25  Ind. 
App.  2S5.  Speculative  and  academic  ques- 
tions   not    answered — New    Idea    Pattern    Co. 


V.  Whelan  (Conn.)  53  Atl.  953.  Whether  a 
city  had  an  easement  by  w^hich  it  was  em- 
powered to  construct  a  sewer  where  it  ap- 
peared that  the  construction  was  by  statute 
— Gas  Light  &  Coke  Co.  v.  New  Albany,  158 
Ind.  268.  Where  a  demurrer  was  sustained 
to  a  petition  for  mandamus  seeking  to  com- 
pel an  election  board  to  treat  a  certificate 
of  nomination  as  evidence,  the  election  law 
will  not  be  construed  on  appeal  after  elec- 
tion— Duvall  V.  Swann,  94  Md.  608.  See 
also  Harmless  Error. 

15.  Gaa  Light  &  Coke  Co.  v.  New  Albany, 
158   Ind.   268. 

16.  Werner  v.  Cincinnati,  23  Ohio  Cir.  C't. 
R.   475. 

17.  See  ante,  §  2.  It  must  be  of  record, 
§  13-E. 

18.  Tyree  v.  Harrison  (Va.)   42  S.  E.  295. 

19.  Empire  State-Idaho  Min.  &  Devel.  Co. 
V.  Bunker  Hill  &  S.  Min.  &  C.  Co.  (C.  C.  A.) 
114  Fed.   417. 

Cheston    v.    Wilson    (Neb.)    89    N.    W. 


20. 

764. 

21. 
112. 

22. 


Carr  v,   Ubsdell    (Mo.    App.)    71    S.    W. 
Stephan  v.  Metzger,  95  Mo.  App.  609. 


SCOPE  OF  REVIEW. 


157 


face  of  the  declaration  will  always  be  noticed  on  writ  of  error.^^  On  a  writ  of 
error  in  Georgia,  a  ruling  which  results  in  a  final  judgment  inconsistent  with  the 
law  may  be  reviewed,  the  whole  case  being  open  for  inspection;  the  writ  will  also 
lie  on  the  ground  that  the  petition  does  not  set  out  a  cause  of  action,  the  supreme 
court  thereon  having  the  powers  possessed  by  the  common  law  courts  in  reviewing 
judgments  of  other  courts.^*  Error  brings  up  only  rulings  against  the  plaintill: 
in  error,-^  and  by  analogy,  if  an  appeal  is  not  from  an  action  of  an  equitable  nature, 
only  errors  affecting  appellant  can  be  considered.^® 

Particular  courts  of  appeal. — The  appellate  division  of  the  supreme  court  of 
i!^ew  York  will  pass  upon  the  sufficiency  of  the  evidence  to  sustain  the  verdict,  the 
same  as  any  other  question.^'^  The  appellate  court  in  Illinois  may  properly  con- 
sider the  sufficiency  of  the  evidence  to  support  the  judgment,  and  reverse  if  found 
insufficient,^^  and  the  verdict  must  be  set  aside  if  so  clearly  against  the  evidence 
as  to  indicate  passion  or  prejudice.^^  In  Indiana,  the  sufficiency  of  the  evidence 
will  be  reviewed  by  the  appellate  court.'" 

Review  as  dependent  on  parties  appealing. — Error  cannot  be  alleged  by  a  party 
neither  appealing  nor  joining  an  appeal.^^  A  decision  by  the  trial  judge  of  a 
material  matter  of  fact  which  the  evidence  properly  put  in  issue  cannot  be  ques- 
tioned by  the  successful  party  to  sustain  a  judgment  in  his  favor  entered  upon  the 
verdict  of  the  jury.^^  An  appellee  wishing  to  have  rulings  of  the  trial  court  against 
him  reviewed  must  take  a  cross  appeal  or  cross  assign  errors.^'  Defendant  below 
cannot  complain  on  appeal  that  the  relief  granted  against  him  was  not  all  that 
was  asked  for  in  the  bill.^*  One  appealing  cannot  complain  of  instructions  more 
favorable  to  the  losing  party  than  is  justified  by  law.^^  Error  which  affects  only 
one  of  several  defendants  cannot  be  urged  on  appeal  by  the  others,^^  unless  his 


23.     Kelly  V.  Strouse   (Ga.)    43  S.   E.    280. 
34.     Kelly  V.   Strouse   (Ga.)    43   S.  E.   280. 

25.  Not  against  defendant  in  error — Reese 
V.  Damato  (Fla.)  33  So.  462.  But  he  may 
cross-assign.     See  ante,   §  11. 

26.  Jones  v.  Ducktown  Sulphur,  Copper 
&  Iron  Co.  (Tenn.)  71  S.  W.  821;  Stuart  v. 
Same,  Id.;  Southwestern  Telegraph  and  Tele- 
phone Co.  V.  Priest  (Tex.  Civ.  App.)  72  S. 
W.   241. 

27.  Schooler  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  114  N.  T.  State  Rep.  800;  Kellogg  v. 
Albany  &  H.  R.  &  Power  Co.  (N.  Y.)  72  App. 
Div.   321,   11  N.  Y.   Ann.  Cas.   50. 

28.  Chicago  City  R.  Co.  v.  Biederman,  102 
111.  App.  617. 

29.  Illinois  Cent.  R.  Co.  v.  Cunningham, 
102   111.  App.  206. 

30.  Baltimore  &  O.  S.  W.  R.  Co.  v.  Sims, 
28  Ind.  App.   544. 

31.  Plaintiff  cannot  complain  of  error  af- 
fecting an  intervenor  where  their  interests 
are  adverse — Richards  v.  Minster  (Tex.  Civ. 
App.)  70  S.  W.  98;  William  E.  Peck  &  Co.  v. 
Kansas  City  Metal  Roofing  &  Corrugating 
Co.  (Mo.  App.)  70  S.  W.  169;  Chavez  v.  Myers 
(N.  M.)  68  Pac.  917;  Powell  v.  Canaday, 
96  Mo.  App.  27;  Worthington  v.  Miller, 
lei  Ala.  420.  Filing  assignments  of  error 
is  insufficient  to  have  error  considered — 
Ritt  V.  True  Tag  Paint  Co.,  108  Tenn.  646. 
A  party  who  does  not  appeal  cannot  com- 
plain of  the  conditions  imposed  upon  him 
hy  the  judgment  below — Kaukauna  Electric 
Light  Co.  V.  Kaukauna,  114  Wis.  327.  A  law 
enabling  one  of  several  losing  parties  to 
appeal  and  use  the  names  of  all  the  parties 
for    that    purpose    will    not    enable    him    to 


appeal  in  behalf  of  all,  and  errors  as  to 
him  only  will  be  considered,  under  Prac. 
Act  111.  §  71 — Norris  v.  Downing,  196  111. 
91.  On  appeal  by  plaintiff  making  both  de- 
fendants appellees,  a  defendant  who  failed  to 
perfect  an  appeal  from  a  judgment  against 
him  in  favor  of  his  co-defendant  cannot 
assign  error  as  against  the  co-defendant — 
National  Bank  of  Cleburne  v.  Carper  (Tex. 
Civ.  App.)  67  S.  W.  188.  A  defendant  who 
did  not  appeal  after  his  motion  for  a  non- 
suit was  overruled  could  not  have  the  mo- 
tion reviewed  on  appeal  by  plaintiff  from  an 
order  setting  aside  the  verdict,  though  the 
nonsuit  should  have  been  granted — Fritz  v. 
Southern  R.  Co.,  130  N.  C.  279.  Whether  in- 
structions were  too  favorable  to  defendant 
will  not  be  reviewed  where  plaintiff  did 
not  appeal — Fitzgerald  v.  Alma  Furniture 
Co.,  131  N.  C.  636;  Bradley-Ramsey  Lumber 
Co.  v.  Perkins  (La.)  33  So.  351;  Kinney  v. 
Murray   (Mo.)    71  S.  W.  197. 

32.  Citizens'  Bank  v.  Rung  Furniture  Co. 
(N.  Y.)   76  App.  Dlv.  471. 

33.  Long  V.  Campbell,  133  Ala.  353;  Ari- 
zona &  N.  M.  R.  Co.  V.  Nevitt  (Ariz.)  68  Pac. 
550.  Consent  must  be  indorsed  if  they  cross- 
assign — Jones  V.  Peebles,   133  Ala.   290. 

34.  Brown   v.   Schintz,    98   111.   App.   452. 

35.  Sappington  v.  Chicago  &  A.  R.  Co., 
95  Mo.  App.  387. 

30.  French  v.  Commercial  Nat.  Bank,  199 
111.  213.  Where  a  bill  is  dismissed  as  to  one 
defendant  as  to  whom  it  is  prejudicial,  the 
others  cannot  raise  such  prejudice  as  ground 
for  reversal  on  appeal — Missouri  Broom  Mfg. 
Co.  V.  Guymon  (C.  C.  A.)  115  Fed.  112. 
Where  two  co-defendants  answer  separately, 


155 


APPEAL,  AND  REVIEW. 


interests  are  iherebv  injured.*'  Error  against  eiiiicr  party  to  the  appeal  will  be 
corrected  by  reTcrsal  of  proceedings  in  whole  or  in  part,  where  the  whole  record 
is  before  the  appellate  court.**  Error  in  direction  of  a  verdict  in  favor  of  part 
of  certain  defendants  sued  in  tort  cannot  be  raised  by  other  co-defendants."  Where 
a  citv  and  an  abutting  owner  are  jointly  sued,  the  city  cannot  on  appeal  ask  for 
reversal  of  the  judgment  against  it  because  of  errors  in  favor  of  the  abutting  owner, 
though  it  may  raise  such  errors  as  between  itself  and  the  abutting  owner.**  Plain- 
tiff on  reverb  of  a  judgment  as  to  him  has  no  interest  in  the  division  of  costs 
taxed  against  the  other  parties  on  a  rule  for  that  purpose.**  One  who  is  sued 
below  both  in  his  individual  and  representative  capacities  as  guardian  for  certain 
minors  cannot  complain  of  errors  below  in  r^ard  to  one  of  s^jch  capacities,  where 
no  recovery  was  had  against  him  in  such  capacity.** 

Waicer  of  errors  in  appeUate  court. — ^Errors,**  cro^  errors,**  exceptions,** 
grounds  in  support  of  a  motion  for  a  new  trial,**  or  in  support  of  a  demurrer,*' 
objections  to  a  petition  in  error,**  or  objections  to  allowances  in  an  administrators 
settlement,**  though  aligned,  will  be  deemed  abandoned  where  not  argued  or  dis- 
eased in  the  briefe.  The  mle  appli^  to  an  appeal  in  equity  tried  de  novo.'*  A 
mere  statement  of  error  i;  n::  ir_   ::  i^:  '       T  r:::nlar  facts  of  the  error  must 

be  pointed  out.**  An  iz-:  "irn  li  li"  oi  i-e  cui  unless  assailed  by  motion  for 
new  trial  or  petition  in  e:: ; : . • ' 


the  feilure      '    '"^    ' — "    '  "^       >-ir.:e 

findings   cr 

SWBT  of  orr 

constitute  ■;: 

peal,  under 

475.    provid---     --.  :   :     ;:     r.     :. 

pleadings — ^Dobos  v.    ?    r :    -  :    '     T  ^ 

68  Pac  ???      "vriier-     --     :     -       i    :    -  "         = 

served 

plain 

again?:  v- ;  ~    "  -   -    .  -'- 

of  a  sr  — r  ;   ~.  Kerr  v^eo-/ 

8?  >*    "  :n!an  Co.  (Ind. 

A;  '     :::Z  "  Zjean,  104 

I  n  Archi- 

tr  _-  Xelly.    91 

„:.  3?lain  of  a  Jndg- 

lae"':    Sci::  a  mechanic's 

lien    proct  -:  :  s    his    land — 

Christopher  _   ;  -:-^ral  Iron  A 

Foundry  Co.  -r.  :  .-3;  Town 

of   Central    Cov:  ^     :.  24    Ky. 

Law  Rep.  1093. 

3Sw  ChUders  r.  L:>.:i:ii  (VT.  Xa.^  4  2  S,  E. 
637. 

39l  Cleland  v.  Anderson  (Xeb.)  92  N.  VT. 
306. 

40.  George  ▼.  St.  Joseph  Qfo.  Arr  '  "1  = 
\«^.  110. 

41.  Johnson  t.  New  Orleans  (La.  ! !  5 : 
735. 

.tS.  Ferguson  ▼.  Slater,  McMahon  &  T ; 
(Tex.  Civ.  App.)  72  S.  "W.  422. 

43.    Clem  ▼.  "Wise,  133  Ala.   403;  Falkr 
Brule    (Colo.    App.)    68    Pac    1054;    Beyer 
Fields.    134   Ala.    236;   Trimble  v.    Terr:'.. 
m.  App.   349;  Hoyt  v.   Chicago,  SL   &   S:-    ? 
B.   (^    (Iowa)    9©  N.  "W.   724;   Chicago   i    ^ 
B.    Co.    ▼.    I-ee,    29    Ind.    App.    480;    We;   -^ 
Union  TeL   Co.   v.   CSinrch    (Neb.)    90   N 
878;  Mayhew  v.  Knittle  (Neb.)  89  N.  W.  1      " 
NoTdin    V.    Bemer.    15    S.    D.    611;    Com—    r- 
wealth   Boofing  Co.   ▼.   Palmer  L«2t^?-    : 
67  N.  J.  Law.  566;  Nix  v.  C.  Reiss    7 
114    VTia.    493;    Zimmerman   ▼.   Bark      Nt: 


Cuil 
cess: 
fer    7 

and 
as    : : 
siti :  r 
Apr 
defz 
urgr 
Is  &   " 
tiot   : 
44, 


45^. 


i  2    "H^ -■>  s 


47. 

4S. 


-':  Scott  T.  Gage   (S.  D.)    92  N.  VT. 

-  ski   V.   Allen    (Iowa)    91    N.   W. 
ir  liL  R.  C!o.  V.  Boeder.  30  "Wash. 

4 '  1 :     Southerland    v.    Sandlin 

"  i       City  of  Greenfield  v.  John- 

-:    X.    K.    542;    Anderson   v. 

:  T  :     N".    "W^.    151;    Payne    v. 

:     --:;  N.    E.    4«3:    Pearce   v. 

'-V-      '-':'-       7    : : ? :::       : i    Sav.    Bank 

-■">  "'     '^■'     -    -      Corrig-an   v. 

y-    : : :  \' . .  I^andt  V.  Mc- 

>.      Error    in    ex- 

:::    i  T  =  —  _       Terminal    Trans- 

ir     ;    :   .   :;:    Arp.  439.     An 

:'    tT-    -    :r       :::     =  =  .:n   of  a  lease 

:.:~  -        t:::^     i:s  mussed    only 

-^Sr    :=    -■    .    ri    as    to    the   depo- 

r       ^:  It    rrartin    (Tex.    Civ. 

""     - "       T:-:\    -T       r.   appeal  from 

-  7  Ar    ::     se:     .;.ie    default,    to 
:  -    7    :::    :;:?   .  :ir~er.:   in   the   brief 

-  :'  tTt    :  —  ?.     ;Trs  Law  &  Collec- 
:-:::er    -     1  :•    ::.:.   352.  71  Pac   445. 

re  ::     ::     :-:::ker    Co..    101    HL 


T    rk    X.    H.    &   H.   R. 

:  :er:y   -      P.ice,  Id.  182; 

T.-    e    7-7.1    Life    Ass'n, 

7.    't    evidence — Barrett 

229;    Baltimore    &    O. 

i.  App.  I   65  X.  E.  76L 

^iV.    VaL     Gas      Co.    v. 

.-^.      Arg-ijiEent   of  only 

i;    3.55;=:- el    :=    insuffi- 

77:         7  TeL     Ojl 


-  r  —  -.    4  51. 

:    :    :    e   court  erred 
-.r:.: — Orcntt 

rre-ie-i-     93  Mo. 

aowa''     fO    X.    "vr. 


SCOPE  OF  REVIEW. 


159 


Procedure  de  novo. — A  requirement  that  all  causes  removed  on  appeal  to  the 
district  court  shall  be  tried  anew  does  not  affect  the  nature  of  a  case  appealed,  so 
as  to  confer  right  to  a  jury  in  cases  in  which  jury  trial  is  not  a  matter  of  right.^* 
The  rule  that  all  cases  appealed  and  tried  de  novo  should  be  tried  on  the  same 
issues  raised  below  does  not  require  the  pleadings  to  be  in  the  precise  language 
of  that  filed  below  ;^^  hence  it  is  proper  to  plead  anew,  but  more  fully  ;^''  but  an 
amendment  to  the  petition  cannot  be  made  to  pray  a  larger  recovery  than  the 
limit  of  jurisdiction  below.^^  If  the  petition  on  appeal  be  assailed  as  tendering 
new  issues,  the  question  must  be  determined  by  comparison  of  the  petitions.^®  On 
appeal  from  a  judgment  in  foreclosure,  appellee  may  amend  his  complaint  to 
aver  that  no  proceedings  have  been  had  at  law,  that  it  may  conform  to  proofs 
after  submission  of  the  cause."^ 

C.  Restriction  to  rulings  below. — Questions  presented  may  be  reviewed,  though 
not  ruled  upon  formally,  if  the  efi;ect  of  other  rulings  was  such  as  to  decide  the 
questions.^"  Facts  on  which  there  is  no  finding  will  be  passed  by,^^  and  what  was 
said  at  a  subsequent  ruling  is  not  decisive  on  review  of  an  earlier  one.®-  Eeview 
will  not  be  made  on  issues  differing  from  those  raised  at  the  trial.^^  A  defendant 
for  whom  the  court  has  directed  a  verdict  on  a  particular  ground  may  defend  the 
verdict  on  any  ground  fairly  presented  by  his  motion  below.®*  Unless  a  motion 
for  a  new  trial  on  several  grounds  is  expressly  overruled  as  to  the  other  grounds 
than  the  one  on  which  it  was  granted,  such  grounds  will  not  be  considered  on 
appeal  from  the  order  granting  it.®''  Judgment  on  general  grounds  of  demurrer 
will  not  admit  review  of  special  grounds.®®  The  appellate  court  cannot  pass  on 
the  merits  of  a  case  where  the  trial  court  sustained  a  demurrer  to  the  whole  dec- 
laration, which  contained  one  good  count.®^ 

Reasons  not  reviewed. — If  a  correct  result  is  reached  by  the  trial  court,  the 
reasons  therefor  will  not  be  reviewed.®^  That  the  lower  court  gave  a  wrong  rea- 
son for  a  proper  judgment  will  not  prevent  affirmance,®®  and  reasons  in  a  written 
opinion  will  not  be  reviewed  where  the  case  is  submitted  to  the  court  with  an  agree- 
ment that  he  shall  decide  all  questions  of  law  and  fact.''®  A  judgment  correct  on 
other  grounds  than  that  on  which  it  was  rendered  below  will  not  be  reversed.''^ 


52.  Error  in  refusal  of  instructions — Him- 
rod  Coal  Co.  v.  Clark,  197  111.  514. 

53.  Iowa  Sav.  Bank  v.  Frink  (Neb.)  92 
N.  W.  916. 

54.  In  probate  trials  the  right  to  trial  by 
jury  is  not  given — In  re  Roarke's  Estate 
(Ariz.)    68  Pac.   527. 

55.  Coleman  v.  Spearman,  Snodgrass  & 
Co.   (Neb.)   93  N.  W.  983. 

.'0.  Martens  v.  Pittock  (Neb.)  92  N.  W. 
1038. 

57.  Spargur  v.  Prentiss  (Neb.)  92  N.  W. 
300;   Prentiss  v.  Spargur,  Id. 

58.  Coleman  v.  Spearman,  Snodgraas  & 
Co.    (Neb.)   93  N.  W.  983. 

59.  Ure  v.  Bunn   (Neb.)   90  N.  W.  904. 

60.  Demurrer  to  a  co-defendant's  answer 
was  carried  back  to  the  bill,  which  was 
dismissed  as  to  all  parties — Coleman  v. 
O'Leary's  Ex'r,   24  Ky.  Law  Rep.   1248. 

61.  Hunt  V.  Hunt,  171  N.  Y.  396. 

62.  Statements  made  in  ruling  afterwards 
on  motion  for  new  trial — Lauer  v.  Palms 
(Mich.)   89  N.  W.   694. 

63.  Defenses  not  pleaded  —  Richey  v. 
Haley,  138  Cal.  441,  71  Pac.  499;  Taylor  v. 
Hall  (Idaho)  71  Pac.  116;  Whalen  v.  Bill- 
ings, 104  111.  App.  281.  Demurrer  will  not 
raise   question   that   a   third   person    second- 


arily liable  should  contribute — Fleener  v. 
Litsey  (Ind.  App.)  66  N.  E.  82.  On  appeal 
from  a  replevin  judgment  wrongful  seizure 
of  property  in  addition  to  that  pleaded  is 
not  reviewed — Pease  v.  Trench,  197  111.  101. 
Instructions  not  requested — Kansas  City 
V.  Madsen,  93  Mo.  App.  143;  Edwards  v. 
Barber  Asph.  Pav.  Co.,  92  Mo.  App.  221;  Cor- 
rigan  v.  Kansas  City,  93  Mo.  App.  173.  Hence 
consult  the  title  Saving  Questions  for  Re- 
view, wherein  cases  are  collected  showing 
necessity  of  raising  question  by  objection. 

64.  Whitney  v.  N.  Y..  N.  H.  &  H.  R.  Co. 
(C.  C.  A.)  102  Fed.  850;  Currier  v.  Trustees 
(C.  C.  A.)   117  Fed.  44. 

65.  Boyd  V.  Western  Union  Tel.  Co.  (Iowa) 
90  N.  W.  711. 

66.  Linder  v.  Whitehead  ((^a.)  42  S.  S. 
358,   limiting  former  decisions. 

67.  Wolf  V.  Alton,   103  111.  App.  587. 

68.  Palmer  v.  Crlsle,  92  Mo.  App.  510; 
Denny  v.  Stokea  (Tex.  Civ.  App.)  72  S.  W. 
209. 

69.  Davison  v.  Johnson,  24  Ky.  Law  Rep. 


27. 


70. 
71. 


Pac.  956. 


Griffith   V.   Finger,   115  Ga.   592. 

Le  Mond  v.  Harrison   (Colo.  App.)    70 


160 


APPEAL  AND  REVIEW. 


On  review  of  a  case,  an  instruction  held  void  below  will  not  be  held  valid  where 
void  on  its  face,  though  no  objection  was  ever  made  on  that  ground." 

D.  Restriction  by  character  of  order  or  judgment;  matters  brought  up  with 
final  judgment.— Rulings  on  practice'^  and  intermediate  orders^*  go  up  with  the 
judgment.  The  denial  of  a  motion  for  a  settlement  of  certain  issues  and  for  a 
jury  trial  can  be  reviewed  on  appeal  from  final  judgment."  Judgment  on  a  plea 
to  the  jurisdiction  is  reviewable  with  the  final  judgment  on  the  main  issue/^  but 
the  matter  so  to  be  reviewed  must  be  such  as  is  involved  by  the  judgment."  De- 
nial of  motion  to  set  aside  a  nonsuit  for  failure  to  appear  and  prosecute  cannot 
be  reviewed  on  appeal  from  the  judgment  of  nonsuit,  nor  from  an  order  refusing 
to  set  aside  the  nonsuit  ordered  for  failure  of  proof.'^  Eulings  of  a  referee  can- 
not be  considered  on  appeal  from  a  judgment  sustaining  a  motion  to  confirm  his 
report."  An  interlocutory  judgment  as  to  the  form  of  a  partnership  between  the 
parties,  dissolving  it  and  directing  an  accounting,  cannot  be  reviewed  on  appeal 
from  a  final  judgment.^"  On  review  of  a  dismissal  of  the  complaint  on  motion, 
a  motion  for  a  new  trial  is  not  to  be  considered,  since  the  case  is  left  without  a 
verdict.^^ 

Matters  reviewable  on  appeal  from  interlocutory  orders. — Proceedings  subse- 
quent to  an  interlocutory  order  are  not  considered.^-  On  appeal  from  a  ruling  on 
a  demurrer,  subsequent  proceedings  will  be  considered  if  they  result  in  a  finding 
according  to  the  facts  alleged  or  within  the  issue,  without  placing  improper  bur- 
dens on  defendant.*'  An  order  allowing  amendment  will  not  bring  up  the  suflS- 
ciencv  of  the  allegations.®*  Nonsuit  or  refusal  to  take  one  off  involves  no  rulings 
on  evidence."  A  second  order  reaches  facts  or  rights  involved  in  a  former  one 
not  appealed.** 

On  appeal  from  grant  or  refusal  of  a  new  trial. — Generally  appeals  from  a  grant 
or  denial  of  a  motion  for  a  new  trial  are  confined  to  the  motion,*^  and  the  suffi- 


72.  Thompson  v.  Roberts  (S.  D.)  92  N. 
W.    1079. 

73.  Insurance  Co.  v.  Parker  (Neb.)  89  N. 
W.  1040;  Lau  V,  Blomberg  (Neb.)  91  N.  W. 
206.  Denial  of  leave  to  amend — Ayers  v. 
Makely.  131  N.  C.  60.  Refusal  to  dismiss — 
Jester  v.  Baltimore  Packet  Co.,  131  N.  C.  54. 
Denial  of  motion  for  judgment  on  pleadings 
— DufTy  V.  Meadows  Co.,  131  N.  C.  31.  Ortiis- 
sion  to  make  findings  is  reviewable  with  the 
judgment — Mantel  v.  Mantel.  135  Cal.  315. 
67  Pac.  758.  Erroneous  reception  or  rejec- 
tion of  ballots  by  court  in  quo  warranto 
may  be  reviewed — People  v.  (Campbell,  138 
Cal.  11,  70  Pac.  918.  An  order  sustaining  a 
motion  to  strike  out  parts  of  an  amended 
complaint  Is  reviewable  on  final  appeal — 
Corcoran  v.  Sonora  Min.  Co.  (Idaho)  71  Pac. 
127. 

74.  Where  the  return  of  the  clerk  con- 
tains the  judgment  roll  properly  certified 
(Rev.  St.  1898.  §§  3050,  3070)— Garvin  v. 
Martin  (W^is.)  93  N.  W.  470.  Intermediate 
orders  specified  in  the  notice  of  appeal  (Code 
Civ  Proc.  §  1301) — New  York,  L.  &  W.  R. 
Co.   V.  Erie  R.   Co.,  170  N.  T.  448. 

75.  Under  Code  Civ.  Proc.  N.  T.  §§  190, 
1316,  1324.  providing  for  the  manner  of  ap- 
peals from  the  appellate  division  to  the  su- 
preme court — Herb  v.  Metropolitan  Hospi- 
tal. 114  N.   T.  St.   Rep.   552. 

76.  State  L.  &  A.  Ass'n  v.  Kemp.  115  Ga. 
355;  Gambrill  v.   Schooley,   95   Md.   260. 

77.  Order  to  receiver  of  mining  company 
*.o   purchase   cyanide  plant  to   work   tailings 


is  reviewable  with  final  adjudication  (Code 
Civ.  Pr.  §  936) — Free  Gold  M.  Co.  v.  Spiers. 
135  Cal.  130,  67  Pac.  61.  Exceptions  to 
guardian's  final  report  bring  up  all  former 
reports — Peterson  v.  Erwin,  28  Ind.  App. 
330.  Allowance  of  alimony  will  not  be  re- 
viewed upon  the  question  whether  marriage 
de  jure  or  marriage  de  facto  existed — Eick- 
hoff  V.  Eickhoff,   29   Colo.   295,   68  Pac.    237. 

78.  The  two  latter  appeals  are  allowed  by 
Gen.  St.  Conn.  §§  1110,  1129 — Appeal  of 
White   (Conn.)    53  Atl.   582. 

79.  Reed  v.  Jugenheimer  (Iowa)  92  N. 
W.  859. 

80.  Under  Code  Civ.  Proc.  N.  Y.  §  1316— 
Aronson  v.  Greenberg,  78  App.  Div.  (N.  Y.) 
639. 

81.  Bessenger  v.  Metropolitan  St.  R.  Co., 
79  App.  Div.    (N.  Y.)    32. 

82.  Subsequent  amendments  —  Smith  v. 
Lamping,  27  Wash.  624,  68  Pac.  195. 

S3.  The  appeal  court  is  not  to  rule  upon 
the  demurrer  as  the  close  of  the  pleadings 
(Pub.  Acts  Conn.  1897,  p.  892,  §  15) — Me- 
chanics'  Bank  V.  Woodward,   74  Conn.   689. 

84.  Thilemann  v.  New  York,  71  App.  Div. 
(N.  Y.)    595. 

85.  Forrest  v.  Buchanan,  203  Pa.  454; 
Lewis  V.  Hinson,   64  S.  C.  571. 

86.  Cost  orders — Horn  v.  Bohn.  96  Md.  8. 
But  not  the  former  order  itself — State  v. 
Superior  Ct.,   30  Wash.   43.   70   Pac.   102. 

87.  On  appeal  from  denial  of  new  trial 
in  divorce  support  of  children  cannot  be 
adjudicated — Bryan    v.    Bryan,    137    Cal.    xix.. 


SCOPE  OF  REVIEW. 


161 


ciency  of  the  comp'aint  cannot  be  consiclered,^^  but  only  on  an  appeal  from  the 
judgment.®^  The  sufficiency  of  the  findings  will  not  be  noticed  on  appeal  from 
denial  of  a  new  trial/"  nor  error  appearing  on  the  judgment  roll,'*^  nor  the  suffi- 
ciency of  the  evidence  to  support  the  findings  and  judgment  on  appeal  from  an 
order  granting  a  new  trial  for  newly  discovered  evidence.^^  A  failure  to  find  on 
a  material  issue  amounts  to  a  decision  against  law  which  may  be  reviewed  on 
appeal  from  an  order  granting  or  refusing  a  new  trial.^^  An  order  of  dismissal 
as  to  other  defendants  will  not  be  considered  on  appeal  from  an  order  denying 
a  new  trial  in  a  suit  in  which  judgment  was  rendered  in  favor  of  only  the  defend- 
ants who  appeared.®*  An  exception  to  a  nonsuit,  properly  saved  on  a  motion  for 
a  new  trial,  may  be  reviewed  on  appeal  from  denial  of  the  motion.^'*  A  motion 
for  a  new  trial  for  insufficiency  of  evidence  raises  the  same  questions  as  a  previous 
request  for  a  peremptory  instruction  and  submission  of  specific  issues  to  the  jury 
so  that  both  rulings  need  not  be  reviewed  on  appeal. ®® 

Equitable,  provisional,  and  special  decrees  and  orders. — It  must  be  presumed 
that  the  court  sitting  without  a  jury,®^  or  in  equity,  considered  only  competent 
evidence.®^  An  appeal  in  an  equitable  action  will  not  bring  up  for  review  a  ruling 
as  to  the  admission  of  evidence.®''  On  appeal  from  a  portion  of  a  decree,  other 
matters  cannot  be  reviewed.^  On  appeal  from  a  decree  entered  after  answer  and 
hearing,  a  decree  overruling  a  demurrer  to  the  bill  is  not  reviewable,  a  direct 
appeal  from  the  latter  decree  being  necessary.^  The  equity  of  the  bill  on  which 
an  interlocutory  order  is  based  may  be  reviewed  on  appeal  therefrom.^  The  inclu- 
sion of  an  unappealable  interlocutory  decree  in  an  appealable  decree  will  not 
enable  its  review.*  A  former  interlocutory  decree  overruling  a  motion  to  dismiss 
the  bill  for  want  of  equity  will  not  be  reviewed  on  appeal  from  an  order  denvinw 
a  motion  to  discharge  a  receiver.'  If  no  appeal  is  taken  from  the  part  of  an  equity 
judgment  which  awards  money  to  one  of  the  parties,  it  cannot  be  claimed  that  as 
to  that  issue  the  losing  party  had  a  right  to  a  jury  trial. ^  An  appeal  from  an  order 
m  execution  of  or  ancillary  to  a  decree  will  not  bring  up  the  decree,^  except  as  to 
whether  it  supports  the  latter;  thus  on  appeal  from  an  order  of  sale  of  commun- 


70  Pac.  304.  Error  to  review  denial  of  a 
new  trial  when  brought  after  a  year  from 
judgment,  will  review  only  the  errors  pre- 
sented on  the  motion  for  new  trial — Me- 
chanics' Bank  V.  Harding.  65  Kan.  655.  70 
Pac,  655.  Where  the  court  below  erroneous- 
ly determined  a  motion  for  new  trial  rais- 
ing questions  of  law  and  fact  only  on  spe- 
cific questions  of  law,  the  merits  of  the  mo- 
tion on  the  other  grounds  will  not  be  deter- 
mined— Gray  v.  Washington  W.  P.  Co.,  27 
Wash.  713.  68  Pac.  360. 

88.  Sutter  County  v.  Tlsdale.  136  Cal.  474. 
C9  Pac.  141;  Swift  v.  Occidental  Min.  Co. 
(Cal.)    70   Pac.    470. 

89.  Lambert  v.  Marcuse,  137  Cal.  44,  69 
Pac.   620. 

90.  Walker  v.  Llllingston.  137  Cal.  401, 
70  Pac.  282.  On  appeal  from  an  order  de- 
nying a  motion  for  new  trial  In  a  suit  to 
quiet  title,  the  question  whether  the  find- 
ings sustain  a  judgment  of  restitution  will 
not  be  considered — Southern  Cal.  R.  Co.  v. 
Siauson    (Cal.)    68  Pac.  107. 

9J.  This  can  only  be  considered  on  ap- 
peal from  the  judgment — Swift  v.  Occidental 
Min.  Co.    (Cal.)    70  Pac.   470. 

92.  Bridenbecker  v.  Bridenbecker,  75  App. 
Div.   (N.  Y.)   6. 

93.  Clark  v.  Hewitt,  136  Cal.  77,  68  Pac. 
SOS. 


94.  United  Land  Ass'n  v.  Pacific  Imp  Co. 
iCal.)   69  Pac.  1064. 

95.  Converse  v.  Scott,  137  Cal.  239  70 
Pac.    13. 

96.  St.  Joseph  &  G.  I.  R.  Cd.  v.  McCarty 
'Neb  )   92  N.   W.  750. 

97.  :>Iullin    v.   Johnson.    98   111.   App.    621. 

98.  Oliver  v.  McDowell.   100  111.  App.   45. 
09.     Under    Code    Civ.    Proc.    Neb.    §    675 — 

Leavitt  V.  Bartholomew  (Neb.)   93  N.  W.  856. 

1.  Bates  Mach.  Co.  v.  Cookson,  104  111. 
App.   457. 

2.  Code  Maryland  art.  5.  ?§  24.  26.  con- 
strued— Gardiner  v    Baltimore.   96  Md.   361. 

3.  Order  appointing  receiver — Cabaniss 
V.  Reco  Min.  Co.   (C.  C.  A.)   116  Fed.  318. 

4.  Interlocutory  decree  on  motion  to 
strike  parts  of  bill  contained  In  decree  on 
demurrer  to  bill — Hood  v.  Southern  R.  Co., 
133  Ala.  374. 

5.  Hereford   v.    Hereford,    134   Ala.    321. 

6.  Lord   V.   Murchison,  114  N.  Y.  St.  Rep.  321. 

7.  Errors  in  preliminary  orders  allowed 
to  become  conclusive  cannot  be  raised — New 
Milford  Water  Co.  v.  Watson  (Conn.)  52  Atl. 
947,  53  Atl.  57.  Appeal  from  confirmation 
of  sale  in  foreclosure — Omaha  L.  &  T.  Co.  v. 
Walenz  (Neb.)  89  N.  W.  623.  On  appeal 
from  confirmation  order  In  highway  pro- 
ceedings, errors  prior  to  original  decree  will 
be    ignored    unless    they   go    to    the   jurisdic- 


Cur.   Law — 11. 


162 


APPEAL  AND  REVIEW. 


Ity  property  under  a  power  in  a  husband's  will,  the  court  can  review  error  in  includ- 
ing the  wife's  interest.*  The  proof  as  to  the  allowance  of  expenses  in  an  order 
discharging  a  receiver  will  be  reviewed  though  it  may  incidentally  involve  the  pro- 
priety of  his  appointment  which  is  not  ordinarily  reviewable.^  Infringement  will 
not  be  determined  on  appeal  from  a  patent  injunction  granted  on  full  hearing 
for  special  reasons,  but  only  the  propriety  of  the  injunction  will  be  questioned.^" 
The  constitutionality  of  certain  laws,  the  effect  of  a  final  judgment  in  another 
proceeding  and  the  right  of  a  taxpayer  to  relief  by  injunction  will  not  be  reviewed 
on  appeal  from  order  denying  injunction,  where  the  motion  was  based  on  affidavits 
merely.^^  On  appeal  from  a  refusal  to  reform  a  deed  that  such  relief  was  improper 
under  the  evidence  will  not  be  considered. ^^  The  propriety  of  the  appointment  of 
a  receiver  for  a  trust  estate  cannot  be  reviewed  on  appeal  from  an  order  overruling 
exceptions  to  a  special  register's  report  and  adjusting  the  claim  of  a  creditor.^'' 
Proceedings  after  judgment,  such  as  vacation  or  modification,  are  often  by  statute 
made  reviewable  with  the  judgment  as  shown  in  the  note.^*  An  appeal  from  a 
judgment  will  not  bring  up  an  accompanj-ing  appeal  from  an  order  refusing  to 
set  aside  the  judgment  and  render  a  different  judgment  on  the  findings.^^  An 
appeal  from  a  second  order  denying  a  motion  to  open  a  default  will  not  bring  the 
first  order  up  for  review.^" 

E.  Restriction  hy  contents  of  record. — The  errors  alleged  must  clearly  appear,^'' 
the  burden  of  showing  error  being  always  on  the  party  alleging  it,^^  and  in  the 
absence  of  an  affirmative  showing  of  error,  it  is  assumed  that  the  rulings  below 
are  correct.^*  The  reviewing  court  is  confined  to  the  record,  and  will  consider 
only  such  error  as  is  there  presented,*"  but  when  a  proceeding  has  been  once  re- 


tion — Hector   Township   Road,   19   Pa,   Super. 
Ct.   120. 

8.  Under  Code  Civ.  Proc.  Cal.  55  153,  940. 
956 — In  re  Wickersham's  Estate  (Cal.)  70 
Pac.  1079. 

9.  Horn  v.  Bohn,  96  Md.  8. 

10.  American  Fur  Co.  v.  Clmlottl,  etc., 
Co.  (C.  C.  A.)  118  Fed.  838;  Thomson-Hous- 
ton Elec.  Co.  V.  Nassau  Elec.  R.  Co.  (C.  C.  A.) 
119  Fed.  354;  Stearns-Roger  Mfg.  Co.  v. 
Brown,   114    Fed.    939.    52  C.  C.    A.   559. 

11.  Knowles  v.  Conklin,  77  App.  Dlv.  (N. 
Y.)   633. 

12.  Boss'lngham  v.  Syck  (Iowa)  91  N.  W. 
1047. 

13.  Campbell  v.  Claflln  Co.,  135  Ala.  527. 

14.  Under  2  Ball.  Ann.  Codes  &  Sts.  §§ 
6153.  5156,  5157,  though  entitled  and  dock- 
eted as  a  separate  action — State  v.  Superior 
Ct.  (Wash.)  71  Pac.  740.  Opening  of  Judg- 
ment entered  on  Judgment  note  may  be  re- 
viewed with  final  Judgment — Schomaker  v. 
Dean,    201   Pa.   439. 

15.  Birch  V.  Cooper,  136  Cal.  636,  69  Pac. 
420. 

16.  Not  within  2  Ball.  Ann.  Codes  &  St. 
§  6500,  subd.  7 — State  v.  Superior  Ct.,  30 
Wash.   43.  70  Pac.  102. 

17.  Kelly  V.  Strouse  (Ga.)  43  S.  E.  280; 
McMillan  V.  Conat  (N.  D.)  91  N.  W.  67; 
Parker  v.  Moore  (C.  C.  A.)  115  Fed.  799; 
Dunscomb  v.  Patterson,  101  111.  App.  69; 
Cooper  V.  Ward  (Tex.  Civ.  App.)  68  S.  W. 
297;  Stevenson  v.  Henkle  (Va.)  42  S.  E.  672. 
Ruling  complained  of  not  appearing — Kelly 
V.  Morris,  101  111.  App.  102.  The  fact  that 
a  Judgment  held  to  be  an  estoppel  had  been 
reversed  must  appear — Reese  v.  Damato 
(Fla.)    33    So.    462.      Where    the    special    ver- 


dict is  not  In  the  record  the  case  will  be 
reviewed  as  if  there  were  none — O'SuUivan 
V.  Knox,  114  N.  T.   848. 

18.  Tradewater  Coal  Co.  v.  Lee,  24  Ky. 
Law  Rep.  215;  McGeary  v.  McGeary,  181 
Mass.  539;  Jaco  v.  Southern  Mo.  &  A.  R.  Co., 
94  Mo.  App.  567;  Holland  v  Cunliff  (Mo. 
App.)  69  S.  W.  737;  Ortt  v.  Leonhardt  (Mo. 
App.)  68  S.  W.  577;  Roberts  v.  Central  Lead 
Co.,  95  Mo.  App.  581;  Tapana  v.  Shaffray 
(Mo.  App.)  71  S.  W.  119;  Stewart  v.  Rosen- 
gren   (Neb.)    92  N.  W.  586. 

19.  McGeary  v.  McGeary,  181  Mass.  539; 
Ortt  v.  Leonhardt  (Mo.  App.)  68  S.  W.  577; 
Springfield  Grocer  Co.  v.  Walton,  95  Mo. 
App.  526;  International  Soc.  v.  Dennis,  76 
App.  Dlv.  (N.  Y.)  327;  Southern  R.  Co.  v. 
Hill  (Ga.)  42  S.  E.  728;  Chicago  &  E.  1.  R. 
Co.  v.  Lawrence,  96  111.  App.  635.  No  rul- 
ing appeared;  objection  presumed  to  have 
been  withdrawn — Adams  v.  Hopkins  (Cal.) 
69  Pac.  228. 

20.  Gardner  v.  Lake  (C.  C.  A.)  114  Fed. 
306;  Newton  v.  Fain,  114  Ga.  833;  Moultham 
V.  Apking  (Neb.)  89  N.  W.  1051;  Hoyt  v.  Chi- 
cago. M.  &  St.  P.  R.  Co.  (Iowa)  90  N.  W. 
724;  Dyea  Elec.  Light  Co.  v  Easton,  15  S.  D. 
572;  Fidelity  &  D.  Co.  v.  West  Chicago  St. 
R.  Co.,  99  111.  App.  486;  Kansas  City  S.  R. 
Co.  V.  Billingslea  (C.  C.  A.)  116  Fed.  335; 
State  V.  St.  Louis,  169  Mo.  31:  Roberts  v. 
Central  Lead  Co..  95  Mo.  App.  581;  Bush  v. 
Tecumseh  Nat.  Bank  (Neb.)  90  N.  W.  236; 
Manthey  v.  Rauenbuehler,  71  App.  Div.  (N. 
Y.)  173;  Stevens  v.  Hill,  74  Vt.  164;  Anderson 
v.  Mossy  Creek  Mills  Co.  (Va.)  41  S.  E.  854; 
Ashland  v.  Whitcomb,  114  Wis.  99;  Cream- 
ery Pckg.  Mfg.  Co.  V.  HotsenplUer   (Ind.)    64 

'  N.    E.    600;    Lvon    v.    Bray    (Iowa)    90    N.    W. 


RESTRICTION  TO  RECORD. 


163 


versed  and  additional  evidence  received,  the  evidence  on  both  hearings  should  be 
considered/^  and  the  state  of  the  record  the  day  the  appeal  was  taken  controls.^* 
Exceptions  are  presumed  to  have  been  made  at  the  time  of  the  action  with  which 
they  are  set  out.^^  Where  it  does  not  appear  from  the  record  when  the  bill  of 
exceptions  was  filed,  it  cannot  be  presumed  that  the  term  had  been  adjourned  so 
that  the  time  was  extended  for  the  filing.^*  It  cannot  be  presumed  that  a  cer- 
tificate by  the  judge  to  the  effect  that  greater  damages  should  have  been  awarded 
in  an  action  for  tort  was  made,  where  there  is  no  recital  of  the  fact  in  the  record.^^ 
Matters  extrinsic  to  the  record  are  not  regarded.-*'  Even  if  the  record  might 
admit,  it  will  not  be  examined  to  make  new  findings  of  fact  in  order  to  support 
a  decree  below. ^'  A  judgment  in  tort  as  to  one  defendant  on  separate  verdicts  will 
be  considered  on  its  own  merits  apart  from  the  fact  that  the  judgment  as  to  the 
other  has  been  affirmed  or  reversed.-^  Though  the  evidence  below  would  warrant 
a  certain  finding,  where  such  finding  was  not  made  it  cannot  be  resorted  to  on 
appeal  in  order  to  support  the  judgment.'*'  The  appeal  court  cannot  presume  that 
defendant  would  not  have  tendered  the  amount  recovered  in  an  action  for  a  bal- 
ance on  contract  if  plaintiff  had  not  claimed  more.^°  Where  a  ruling  depends  on 
evidence,  it  cannot  be  reviewed  unless  all  the  evidence  relating  thereto  is  in  the 
record,^^  and  where  it  is  based  on  a  rule  of  court  that  rule  must  be  shown.^^  In 
order  that  the  supreme  court  may  try  an  accounting  had  before  a  referee  below 


827;  Hester  v.  Frary,  99  111.  App.  51.  And 
judicial  notice  will  not  be  taken  of  the 
records  of  the  court  below — Bush  v.  Tecum- 
seh  Nat.  Bank  (Neb.)  90  N.  W.  236.  If 
properly  preserved,  poll  books  may  be  ex- 
amined, thoug-h  but  for  the  appeal  they 
would  have  already  been  destroyed  by  vir- 
tue of  statute — Reed  v.  Jugenhelmer  (loWa) 
92  N.  W.  S59.  Indorsement  on  a  recognizance 
sent  up  as  part  of  record  may  be  considered 
as  to  time  of  forfeiture — Commonwealth  v. 
Meeser,   19  Pa.   Super.  Ct.  1. 

21.  McConkie  v.  District  Ct.  (Iowa)  90  N. 
W.   716. 

22.  Hlnson  v.  Ralston,  100  111.  App.  214. 

23.  It  will  be  presumed  that  the  dates 
of  giving-  and  excepting  to  an  instruction 
were  the  same  where  the  record  shows 
the  date  of  filing  and  the  exception — Skow 
V.  Locks  (Neb.)  91  N.  W.  204. 

24.  Hugumin  v.  Hinds  (Mo.  App.)  71  S. 
W.   479. 

25.  Under  Code  Ala.  §  1326,  requiring  such 
certificate  in  order  that  plaintiff  may  re- 
cover more  costs  than  damages — Guttery  v. 
Boshell,   132  Ala.   596. 

26.  Expenditures  by  a  purchaser  after 
sale  in  foreclosure  and  before  reversal — 
Hunt  v.  Whitehead,   19  App.  D.  C.   116. 

27.  Appeal  to  United  States  supreme 
court  from  decree  refusing  to  demand  com- 
pliance with  interstate  commerce  commis- 
sioners' order — Interstate  Commission  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  186  U.  S.  320,  46  Law. 
Ed.   1182. 

28.  Connor  v.  General  Firte  Bxtg.  C,  73 
App.  Div.   (N.  Y.)    624. 

29.  Spier  v.  Hyde,  78  App.  Div.  (N.  Y.) 
151. 

30.  Niemeyer  v.  Woods,  72  App.  Div.  (N. 
Y.)    630. 

31.  Carnahan  v.  Connolly  (Colo.  App.)  68 
Pac.  836;  Griffith  v.  Finger,  115  Ga.  592; 
Carpenter  v.  Carpenter  (Mich.)  89  N.  W.  717; 
Rhodes    v.    Rhodes,    95    Mo.    App.    327;    Wills 


v.  Hardcastle,  19  Pa.  Super.  Ct.  525;  Lone 
Tree  Ditch  Co.  v.  Cyclone  Ditch  Co.,  15  S. 
D.  519;  Carrow  v.  Barre  R.  Co.,  74  Vt.  176 
Standish  v.  Bridgewater  (Ind.)  65  N.  E.  189 
Eklund  V.  Martin,  87  Minn.  441;  In  re  Eck 
hart's  Estate  (Wis.)  92  N.  W.  363;  Kansas 
City  V.  Parker,  65  Kan.  734,  70  Pac.  867. 
But  see  St.  Paul  Trust  Co.  v.  Kittson  (Minn.) 
92  N.  W.  500,  in  which  it  was  said  that  where 
findings  of  ultimate  facts  are  stated  by  the 
court  to  be  based  on  certain  conditions  the 
evidence  thereof  as  well  as  findings  of  the 
particular  facts  should  be  in  the  record. 
Refusal  to  stay  or  set  aside  execution  will 
not  be  reviewed  if  facts  not  In  record — • 
Stephens  v.  Addis,  19  Pa.  Super.  Ct.  185. 
There  must  be  a  sufficient  statement  of  evi- 
dence to  show  impropriety  of  rulings  or  an 
assignment  of  the  errors — Southerland  v. 
Sandlin  (Fla.)  32  So.  786.  Refusal  of  non- 
suit not  ordinarily  exceptionable  where  evi- 
dence is  not  preserved — Cavanaugh  v.  Grady 
(R.  I.)  52  Atl.  1027.  Allowance  to  assignee 
for  creditors  not  disturbed  where  facts  were 
not  in  record — Woodcock  v.  Reilly  (S.  D.) 
92  N.  W.  10.  Presumption  from  the  record 
is  that  a  refusal  of  liquor  license  resulting 
from  disagreement  was  not  arbitrary — In  re 
Foreman's  License.  20  Pa.  Super.  Ct.  98. 
Taxation  of  cost  of  harvesting  distrained 
crops  against  the  tenant  is  aided  by  pre- 
sumption, in  absence  of  evidence  of  a  dif- 
ferent arrangement — Gore  v.  Gardner  (Tex. 
Civ.  App.)  68  S.  W.  520.  Denial  of  a  mo- 
tion to  suppress  a  notary's  ceVtificate  of  a 
witness'  refusal  to  testify  and  refusal  to 
allow  the  witness  to  testify  will  be  pre- 
sumed to  have  been  justified  by  the  charac- 
ter of  the  evidence  where  none  of  the  evi- 
dence on  the  motion  to  suppress  was  given 
in  the  record — Weinert  v.  Simmang  (Tex. 
Civ.  App.)    68  S.  W.  1011. 

32.  Carnahan  v.  Connolly  (Colo.  App.)  68 
Pac.  836;  Anaconda  Min.  Co.  v.  Heinze,  27 
Mont.  161,  69  Pac.  909. 


164 


APPEAL  AND  REVIEW. 


de  novo,  the  evidence  must  be  certified  by  the  conrt.^'  Errors  on  the  face  of  the 
record  may  be  reviewed  though  there  is  no  bill  of  exceptions.^*  The  bill  must 
show  that  the  alleged  error  was  prejudicial.^'' 

Jurisdiction  and  venue.— Want  of  jurisdiction  must  be  shown  in  the  record  to 
review  a  motion  to  dismiss  on  that  ground,3«  and  the  same  rule  applies  to  an  aTleged 
disqualification  of  the  judge,"  or  to  a  motion  for  change  of  venue.^«  An  order 
reciting  that  a  cause  was  stricken  from  the  calendar  because  removed  to  the  federal 
court  and  that  court  had  taken  jurisdiction  will  not  show  sufficiently  the  assimip- 
tion  of  such  jurisdiction  where  the  whole  order  certified  shows  no  fact  in  proof 
thereof  though  it  might  be  assumed  that  it  was  shown  by  oral  admission  or  stipu- 
lation.^'* An  order  reciting  a  motion  to  strike  the  cause  from  the  calendar  because 
of  pendency  of  another  action  in  the  federal  court  on  the  same  issues  will  not 
show  that  jurisdiction  had  been  taken  by  the  latter  court  where  the  files  and  rec- 
ord merely  recite  an  answer  raising  the  pendency  of  the  prior  action  and  that  a 
motion  to  strike  the  cause  was  made  on  the  same  ground  at  trial  but  do  not  show 
that  any  proof  was  taken  on  the  answer  or  any  reply  had  or  the  answer  admitted."" 
All  reasonable  presumptions  will  be  indulged  in  favor  of  the  jurisdiction"  of  a 
court  of  superior  general  jurisdiction."  The  manner  in  which  a  special  judge 
was  secured  to  try  a  cause  cannot  be  presumed  to  affect  his  jurisdiction  where  the 
record  does  not  disclose  it  and  it  appears  that  no  objection  was  taken  to  his  action.*^ 
Where  the  record  shows  substitution  of  his  personal  representative  on  the  death  of 
a  party  plaintiff,  it  will  be  presumed  that  the  appointment  was  made  by  a  court 
of  conipetent  jurisdiction,  and  that  the  order  of  substitution  was  regular.** 

Facts  conferring  appellate  jurisdiction  should  appear  in  the  record.*'  Where 
it  appears  that  an  appeal  to  the  circuit  from  the  justice  court  was  not  perfected 
within  six  days,  but  it  is  not  shown  that  the  appeal  was  taken  from  the  justice 
durino-  term  time,  it  will  be  presumed  on  appeal  to  the  appellate  court  that  since 
the  circuit  court  retained  jurisdiction,  the  appeal  was  not  taken  during  term  time.** 


33.  Boone  Hdw.  Co.  v.  Lee  (Iowa)  92  N. 
W.   69. 

34.  Hughes  V.  Henderson,  95  Mo.  App.  312; 
Cornelius  v.   Ferguson    (S.  D.)    91   N.  W.    4fi0. 

35.  Littlefield  v.  Gray,  96  Me.  422.  And 
see  "Harmless  Error"  for  presumptions  as 
to  the  effect  of  error. 

36.  Meyer  v.  Phoenix  Ins.  Co..  95  Mo.  App. 
721.  A  case  transferred  down  is  presumed 
to  be  within  the  lower  court's  jurisdiction — 
Frank  Bird  Trf.  Co.  v.  Krug  (Ind.  App.)  65 
N.  E.  309.  Presumption  on  a  silent  record 
favors  jurisdictional  facts  though  not  in 
complaint — Whittenberger  v.  Bower,  158 
Ind.  673.  Presumption  will  not  aid  absence 
of  finding  of  jurisdictional  facts — In  re  Snow, 
96  Me.  570. 

37.  State  V.  Mack,  26  Nev.  430,  69  Pac. 
862. 

38.  Duncan  v.  Thomas  (Colo.  App.)  69 
Pac.   310. 

39.  Ashland  v.  Whitcomb,   114  Wis.   99. 

40.  The  answer  and  motion  were  put  in 
issue  without  a  reply  under  Rev.  St.  Wis. 
1898,  §  26fi7 — Ashland  v.  Wisconsin  Cent.  R. 
Co.,  114  Wis.  104. 

41.  If  the  record  fails  to  disclose  any 
error  in  the  jurisdiction  of  the  subject- 
matter  and  parties  or  power  of  court  to 
enter  the  judgment,  it  will  be  presumed 
regular  in  every  respect — Carnahan  v.  Con- 
nolly (Colo.  App.)  68  Pac.  836.  It  will  be 
presumed   in    favor    of   the    correctness    of   a 


judgment  appealed  from  the  probate  court, 
that  that  court  had  jurisdiction  for  appoint- 
ment of  an  administl"ator  de  bonis  non  and 
not  that  the  jurisdiction  still  remained  In 
the  chancery  court,  though  it  appears  that 
former  administration  was  In  the  latter 
court — Henley   v.    Johnston,    134    Ala.    646. 

43.  Tapana  v.  Shaffray  (Mo.  App.)  71  S. 
W.  119;  Von  Hermann  v.  Berry,  102  111.  App. 
658;  Stewart  v.  Rosengren  (Neb.)  92  N.  W. 
586;  Holland  v.  Cunliff  (Mo.  App.)  69  S.  W. 
737. 

43.  Nickerson  v.  Leader  Mercantile  Co., 
90  Mo.   App.   336. 

44.  Under  Rev.  St.  Utah,  §  2920.  provid- 
ing for  revival  of  an  action  on  death  of  a 
party — Warren  v.  Robison  (Utah)  70  Pac. 
989. 

45.  Findings  below  of  the  amount  will 
control  if  there  be  no  allegations  or  evi- 
dence in  the  record — Schreiner  v.  Emel,  26 
Wash.   555,   67  Pac.   228. 

In  Illinois  the  pleadings  may  be  exam- 
ined to  determine  the  amount  involved  in 
ex  contractu  actions  only  when  there  was 
no  trial  of  fact;  otherwise  the  supreme 
court  decides  solely  on  the  evidence  pre- 
served In  the  record  (1  Starr  &  C.  1896,  c.  37. 
par.  28) — Pick  v.  Mutiial  Life  Ins.  Co.,  192 
111.  157;  Murray  Iron  W'ks  v.  De  Kalb  Elec. 
Co.,  200  111.  1^6. 

46.  Hadley  v.  Bernero  (Mo.  App.)  71  S.  W. 
451. 


RESTRICTION  TO  RECORD. 


165 


Process  and  pleading. — An  amendment  of  process  cannot  be  reviewed  unless 
tlie  original  process  and  the  amendment  are  in  the  record.*^  Sufficiency  of  a  com- 
plaint cannot  be  reviewed  unless  all  the  pleadings  are  in  the  record.*^  The  suffi- 
ciency of  a  bill  of  particulars  cannot  be  determined  in  the  absence  of  an  inventory 
referred  to.*^  The  judgment  overruling  a  demurrer  must  be  in  the  record.^"  An 
admission  of  allegations  is  not  presumed/^  bnt  where  pleadings  in  a  suit  for  taxes 
state  that  tax  bills  are  filed  therewith,  which  is  not  denied,  it  must  be  presumed 
on  appeal  that  they  were  filed. ^-  If  the  fact  does  not  appear,  it  will  not  be  presumed 
that  titles  were  put  in  issue. ®^  Issue  will  be  presumed  to  have  been  taken  on  pleas 
to  which  objection  had  been  entered,  but  not  urged,  and  on  which  the  case  was 
submitted  for  final  decree.^*  Where  facts  established  by  a  verdict  are  not  within 
issues  made  by  the  pleadings,  it  Avill  be  presumed,  in  the  absence  of  statements  in 
the  record  and  settled  case  or  bill  of  exceptions,  that  they  were  litigated  by  con- 
sent, so  that  the  sufficiency  of  the  pleadings  will  not  be  reviewed.^*  It  may  be 
supposed  that  a  proper  amendment  of  a  petition  was  made  to  conform  to  proof."® 
Rulings  on  matters  of  process  will  be  presumed  correct.^''  If  it  does  not  appear 
otherwise,  it  will  be  presumed  that  a  mother  had  notice  of  the  appointment  of  a 
third  person  as  guardian  for  her  children.'*^  Pleadings  which  have  been  treated 
by  the  trial  court  as  filed  will  be  so  treated  though  not  marked  by  the  clerk.^®  An 
amended  petition,  filed  and  acted  upon,  will  be  presumed,  nothing  appearing  to 
the  contrary,  to  have  been  filed  with  the  permission  of  the  court.®"  It  will  be 
presumed  that  a  motion  for  leave  to  amend  which  was  denied  was  decided  in  the 
court's  discretion  and  not  because  the  court  had  no  power  to  allow  it.*^  It  must 
be  assumed  that  leave  to  plead  was  obtained  on  appeal  from  an  order  sustaining  a  de- 
murrer to  partial  defenses,  since  the  court  can  only  pass  on  the  sufficiency  of 
partial  defenses.®^  Where  after  three  actions  brought  by  a  city  were  consolidated 
an  order  was  entered  overruling  demurrers  to  the  petition,  the  order  will  be  re- 
garded on  appeal  as  made  in  all  the  consolidated  actions.®'  A  presumption  that 
leave  to  amend  an  answer  was  refused  as  a  matter  of  discretion  when  the  order  is 
silent  as  to  ground  is  rebutted  by  a  statement  of  the  judge  in  the  case  on  appeal 
that  the  ground  was  the  insufficiency  of  the  amendment  offered.'*  Where  an  an- 
swer denying  authority  to  sign  a  corporate  note,  in  a  suit  thereon,  is  said  in  the 


47.  Saussay  v.  Lemp  Brew.  Co.  (Neb.) 
89  N.  W.   1048. 

48.  Gerspach  v.  Barhyte  (Colo.  Appi.)  68 
Pac.   1057. 

49.  Handy  v.  Powers,  70  App.  DIv.  (N.  Y.) 
618. 

50.  A  record  recital  being  insufficient — 
Randall  v.  Wadsworth,  130  Ala.  633;  Speer 
V.  Crowder   (Ala.)    32   So.   658. 

51.  If  return  to  a  mandamus  is  not  in 
record,  allegation  of  the  petition  will  not 
be  deemed  to  have  been  admitted — United 
States  V.  Hitchcock.  19  App.  D.  C.  347.  A 
finding,  that  an  affidavit  was  not  seasonably 
filed  in  order  to  make  allegations  by  way 
of  replication  or  supplement  conclusive  un- 
less denied  by  counter  affidavit,  will  be  sus- 
tained upon  a  silent  record — In  re  Kunkle's 
Estate,  21  Pa.  Super.  Ct.  200. 

53.  Woolley  V.  Louisville,  24  Ky.  Law  Rep. 
1357. 

53.  In  partition — Sauer  v.  Schenck  (Ind.) 
64  N.  E.  84. 

54.  Adair  v.   Feder,   133  Ala.   620. 

55.  Peach  V.  Reed,   87  Minn.   375. 

56.  Under  2  Ball.  Ann.  Codes  &  Sts.  5  6535 


— Richardson  v.  Moore,  30  Wash.  406,  71  Pac. 
18. 

57.  Refusal  to  quash  service  of  summons 
will  be  held  to  be  on  sufficient  evidence 
where  the  evidence  on  the  motion  was  not 
in  the  bill  of  exceptions — Haskell  v.  Button 
(Neb.)   91  N.  W.  395. 

58.  Beardsley  v.  Thomas  (Tex.  Civ.  App.) 
72  S.  W.  411. 

59.  Jolliffe  V.  Maxwell  (Neb.)  91  N.  W. 
563. 

A  recital  that  a  paper  was  filed  presup- 
poses that  It  was  delivered  to  the  officer 
and  served  on  him — Jarvis  v.  Chase  Com- 
pany  (Neb.)   89  N.  W.  624. 

60.  Reeves  v.  Pierce,  64  Kan.  502,  67  Pac. 
1108. 

61.  Kelly  v.  New  Haven  Steamboat  Co. 
(Conn.)  52  Atl.  261. 

62.  Gabay  v.  Doane,  77  App.  Div.  (N.  T.) 
413. 

63.  "Woolley  V.  Louisville,  24  Ky.  Law 
Rep.  1357. 

64.  Ayers  v.  Makely,   131  N.   C.   60. 

65.  Marshall  Field  Co.  v.  Oren  Ruffcorn 
Co.   (Iowa)    90  N.  W.  618. 


166 


APPEAL  AND  REVIEW. 


abstract  to  have  been  duly  verified  without  setting  out  the  verification,  the  latter 
will  be  presumed  sufficient.'** 

JJoiions  and  affidavits. — To  review  the  niling  on  a  motion,  the  record  must 
show  the  motion  itself,®®  the  grounds  thereof,®"  the  affidavits  on  wliich  motion  is 
based,®*  and  the  ruling  thereon.®®  Where  there  is  a  difference  in  the  date  of  an 
affida^-it  mentioned  in  the  bill  of  exceptions  and  the  one  filed  in  the  transcript, 
it  cannot  be  presumed  that  the  one  filed  was  the  one  read  on  the  hearing.'" 

Proceedings  at  trial  in  general. — Improper  remarks  of  counsel,'^  or  of  court," 
questions  asked  of  a  juror,"  a  demand  for  a  jury  trial,'*  miist  appear  in  the  rec-ord 
to  review  alleged  error  therein.  The  reasons  for  a  request  to  peremptorily  chal- 
lencre  after  a  juror  has  been  accepted  must  appear."  The  absence  of  the  judge 
from  the  room  during  argmnent  of  counsel  will  be  presumed  to  have  been  with 
consent  of  the  parties  and  will  not  alone  be  ground  for  reversal."  Defendant  will 
be  presumed  to  have  consented  to  the  manner  of  trial  and  to  the  waiver  of  findings 
on  a  certain  equitable  defense  offered,  where  it  does  not  appear  by  the  bill  of  excep- 
tions that  he  requested  the  trial  of  such  defense  or  that  findings  were  refused  there- 
on."' Where  it  appears  that  a  juror  was  excused  and  another  appointed,  it  must  be 
presumed  that  the  jury  box  was  exhausted.^*  It  will  be  presumed  that  the  members 
of  the  jurv  board  were  competent  though  it  is  alleged  that  one  of  the  three  was 
incompetent  where  it  is  not  shown  that  the  other  two  members  were  disqualified."^ 

Admission  or  exclusion  of  evidence. — Eulings  on  the  admissibility  of  evidence 
cannot  be  reviewed  unless  the  record  shows  the  evidence  admitted,^"  or  excluded.®^ 
A  ruliniz  on  evidence  will  not  be  considered  unless  there  is  a  showing  as  to  its 


66.  Hamilton  v.  Maxwell.  133  Ala.  233: 
Chicago  &  S.  E.  R.  Co.  v.  TVoodard  (Ind.)  6? 
N.  E.  577;  Crag-g^s  v.  Bohart  (Ind.  Ter.)  69 
S.  "KV.  931;  Muncie  Gas  Co.  v.  Muncle  ilnd.^ 
66  X.  E.  436.  To  strike  out  petition — Corri- 
gan  V.  Kansas  City.  93  Mo.  173.  To  review 
denial  of  motion  for  change  of  venue  be- 
cause not  filed  in  time,  the  day  when  the 
cause  was  set  for  trial  must  appear — Good- 
win V.  Bentley   (Ind.  App.)    66  N.  E.   496. 

67.  Terrill  v.  Tillison  (Vt.)  54  Atl.  1S7. 
The  record  or  transcript  must  show  errors 
urged  on  motion  for  a  new  trial — Gregory 
V.  Leavitt  (Neb.)  89  N.  VT.  764;  Gandy  v. 
Cummins    (Neb.)    89   N.   W.    777. 

6S.  Hamilton  v.  Maxwell,  133  Ala.  233; 
Kinney  v.  Bittinger  (Neb.)  92  N.  W.  1005. 
Judgment  collaterally  attacked  for  want 
of  jurisdiction — Hanpt  v.  Simington,  27 
Mont.   480.   71  Pac.   672. 

69.  Striking  out  of  plea — Moore  v.  Cros- 
thwait,  135  Ala.  272;  Chicago  &  S.  E.  R.  Co. 
V.  "Woodard  (Ind.)  65  X  E.  577;  Wickes  v. 
Pulfrey  (Mich.)  91  N.  W.  633:  Kelly  v.  Mor- 
ris. 101  111.  App.  102.  But  where  a  new 
trial  was  granted,  the  court  will  examine 
the  record  to  see  if  any  ground  therefor 
existed,  the  ground  not  being  stated — Ber- 
nier  v.  Anderson  (Idaho)  70  Pac.  1027.  Coun- 
ter afBdavits  presumed  to  have  been  ignored 
or  not  objected  to  where  order  on  the  mo- 
tion does  not  refer  to  them — People  v.  Shea, 
73  App.  Div.   (N.  Y.)   237. 

70.  San  Diego  Sav.  Bank  v.  Guodsell.  137 
Cal.  420.  70  Pac.   229. 

71.  Groh's  Sons  v.  Groh,  114  N.  T.  438; 
Shoemaker  v.  Bryant  Mill  Co..  27  TVash. 
637.  68  Pac.  380;  TVarren  v.  Nash  (Ky.)  67 
S  "VT.  274.  In  "Warren  v.  Nash.  24  Ky.  Law 
Rep.  479.  It  was  held  that  affidavits  on  mo- 
tion   for    new    trial    sufficiently    showed    the 


^rror — Murphy  v.  Hopper,  75  App.  Div.  (N. 
V.)  606;  Guckavan  v.  Lehigh  Traction  Co., 
:03  Pa.   521. 

72.  Reamer  v.  Morrison  Exp.  Co.,  93  Mo. 
vpp.  501. 

73.  It  was  claimed  that  false  answers 
had  been  made — Elgin  v.  Nofs,  103  111.  App. 
11. 

74.  Southern  R.  Co.  v.  Beach  (Ga.)  43  S. 
"S.   413. 

75.  Allen  V.  State.  70  Ark.  22.  337. 

76.  Gorham  v.  Sioux  City  S.  Y.  Co.  (Iowa) 
52  N.   W.   698. 

77.  Horwege  v.  Sage.  137  CaL  539,  70  Pac. 
621. 

78.  Under  Acts  Tenn.  1901,  c  124.  §J  4,  5,  8. 
requiring  a  substitute  juror  to  be  drawn 
from  the  box  unless  exhausted — Turner  v. 
State   (Tenn.)   69  S.  TV.  774. 

79.  Turner  v.  State   (Tenn.)    69  S.  "W.   774. 

80.  Wells,  etc.,  Co.  v.  "SVilliams  (Tex.  Civ. 
App.)  71  S.  W.  314;  Brown  v.  Woodward 
(Conn.)  53  Atl.  112;  Dubois  v.  Decker  (C. 
C.  A-l  114  Fed.  267;  Freeman,  etc..  News  Co. 
V.  Mencken,  115  Ga,  1017;  State  v.  Thomp- 
son, 91  Mo.  App.  329.  A  finding  that  a  writ- 
ing did  not  express  the  intent  of  the  parties 
is  not  sufficient  to  show  that  oral  evidence 
was  admitted  to  contradict  it — "Wallace  v, 
Hendee  (N.  J.  Sup.)  53  Atl.  694. 

81.  Grand  Lodge  v.  Bunkers.  23  Ohio 
Cir.  Ct.  487;  Hunt  v.  Northwestern  Mortg. 
Trust  Co.  (S.  D.)  92  N.  "W.  23;  Dresser  v. 
Canadian  Pac.  R.  Co.  (C.  C.  A.)  116  Fed. 
281;  Supreme  Lodge  v.  Robbins,  70  Ark. 
364;  Crane  v.  Blackman.  100  111.  App.  565; 
Blackwell  v.  Mayfield  (Tex.  Civ.  App.)  69 
S.  "W.  659;  O'Malley  v.  Com.,  182  Mass.  196; 
Emorv  Mfg.  Co.  v.  Rood.  182  Mass.  166; 
Carwile  v.  Carwile.  131  Ala.  603;  Stevens  v. 
Walton   (Colo.  App.)   68  Pac.  834. 


RESTRICTION  TO  RECORD. 


Ib7 


relevancy,^-  and  accordingly,  the  pleadings  must  be  in  the  record.^'  Where  a  ques- 
tion does  not  clearly  disclose  the  expected  answer,  an  offer  of  proof  must  be  made,®* 
and  the  record  must  show  such  offer.^^  Where,  on  a  trial  of  mental  capacity, 
one  of  the  parties  was  refused  permission  to  introduce  certain  witnesses,  it  will  not 
be  presumed,  on  appeal  from  an  order  finding  mental  capacity  restored,  that  such 
witnesses  would  have  given  evidence  against  the  conclusion.^®  Exclusion  of  an- 
swers to  certain  questions  cannot  be  held  error  unless  the  answers  are  set  out  in 
the  bill  of  exceptions  and  error  affirmatively  appears.^^  Eulings  as  to  the  admis- 
sibility of  evidence  will  be  presimied  to  have  been  correct  in  the  absence  of  con- 
trary showing.^®  It  will  be  presumed  that  a  collateral  attack  on  a  judgment  for 
want  of  jurisdiction  of  the  person  made  in  the  court  below  was  tried  there  by 
inspection  of  the  judgment  roll  alone.^'' 

Sufficiency  of  evidence. — If  the  sufficiency  of  the  evidence  is  questioned,  all 
the  evidence  must  be  presented.^°     The  chancery  rule  is  otherwise,  appellee  being 


82.  Volusia  County  Bank  v.  Bertola  (Fla.) 
33  So.  448;  Taft  v.  Little,  78  App.  Div.  (N. 
v.)    74. 

83.  Florida  Cent.  &  P.  R.  Co.  v.  Seymour 
(Fla.)  33  So.  424;  Consumers'  Ice  Co.  v. 
Jennings   (Va.)   42  S.  E.  879. 

84.  See  Saving-  Questions   for  Review. 

85.  Sesler  v.  Coal  Co.,  51  W.  Va.  318; 
Freeman  etc..  News  Co.  v.  Mencken,  115  Ga. 
1017;  Anthony  Ittner  Brick  Co.  v.  Ashby, 
198  111.  562;  Broek  v.  Bear  (Va.)  42  S.  E. 
307;  Colson  v.  Linn,  101  111.  App.  194.  No 
offer  of  further  proof  is  necessary  where  the 
exclusion  was  based  on  an  erroneous  view 
of  the  pleadings — Maugh  v.  Hornbeck  (Mo. 
App.)    72   S.  W.   153. 

86.  In  re  Lovern's  Estate,  137  Cal.  680,  70 
Pac.   783. 

87.  Carwlle  v.  Carwile,   131  Ala.   603. 

88.  If  the  bill  of  exceptions  fails  to  show 
when  certain  evidence  was  offered  or  for 
what  purpose  or  the  reason  of  objections 
thereto,  an  error  therein  will  not  be  pre- 
sumed— Volusia  County  Bank  v.  Bigelow 
(Fla.)  33  So.  704.  Where  it  appears  from  the 
record  that  testimony  in  the  bill  of  excep- 
tions in  another  case  was  read  on  the 
trial,  the  appeal  court  will  presume  that  the 
bill  was  properly  authenticated  and  cor- 
rectly read — Woodworth  v.  Gorsline  (Colo.) 
69  Pac.  705.  Exclusion  of  a  printed  circular 
which  it  appears  was  used  simply  to  ad- 
vertise defendant's  business  without  set- 
ting forth  its  contents  in  an  action  for 
services  will  be  presumed  to  have  been 
correct — Stevens  v.  Walton  (Colo.  App.)  68 
Pac.  834.  Where  the  reason  for  the  exclu- 
sion of  an  answer  is  not  given  and  it  ap- 
pears that  the  party  objecting  had  the  ben- 
efit of  the  testimony  given,  the  supreme 
court  cannot  say  that  the  exclusion  was  not 
because  of  mere  repetition — Harp  v.  Harp, 
136  Cal.  421,  69  Pac.  28.  Admission  of  sec- 
ondary evidence  of  corporate  records — Mis- 
souri, K.  &  T.  R.  Co.  V.  Dilworth,  95  Tex. 
327. 

89.  Haupt  V.  Slmington,  27  Mont.  480,  71 
Pac.   672. 

00.  People's  Sav.  Bank  v.  Gordon  (Mo. 
App.)  71  S.  W.  470;  Speirs  Fish  Co.  v.  Rob- 
bins,  182  Mass.  128;  Woodcock  v.  Reilly  (S. 
D.)  92  N.  W.  10;  Mankameyer  v.  EgelhofC, 
93  Mo.  App.  183;  Henderson  v.'  Foster,  182 
Mass.  447;  Johnson  v.  Gehbauer  (Ind.)  64 
II.    B.    855:    State   v.   Lusk,    93   Mo.    App.    680; 


Richardson  v.  Pennington  (Ind.  T.)  69  S. 
W.  838;  Dixon  v.  Thomas,  91  Mo.  App.  364; 
Heller  v.  Beal,  2S  Ohio  Cir.  Ct.  540;  Leavitt 
V.  Bolton,  102  111.  App.  582;  Leicher  v.  Kee- 
ney  (Mo.  App.)  72  S.  W.  145;  Reder  v.  Belle- 
more  (S.  D.)  92  N.  W.  1065;  Peach  v.  Reed, 
87  Minn.  375;  Hopper  v.  Mather,  104  111. 
App.  309;  Gay  v.  Havermale,  30  Wash.  622, 
71  Pac.  190;  Dauel  v.  Arnold,  103  111.  App. 
298;  Louisville  &  N.  R.  Co.  v.  Collinsworth 
(Fla.)  33  So.  513;  Chicago  Horseshoe  Co. 
v.  Gostlin  (Ind.  App.)  66  N.  E.  514.  By 
evidentiary  bill  of  exceptions  and  properly 
abstracted — Florida  Cent.  &  P.  R.  Co.  v. 
Seymour  (Fla.)  33  So.  424;  Younglove  v. 
Knox  (Fla.)  33  So.  427.  Unless  the  special 
findings  are  inconsistent  with  any  tenable 
theory  under  the  issues — Kansas  City  L. 
R.  Co.  V.  Frey  (Kan.)  71  Pac.  525;  Ameri- 
can Tin  Plate  Co.  v.  Williams  (Ind.  App.) 
65  N.  E.  304;  Uhlefelder  v.  Mt.  Vernon,  76 
App.  Div.  (N.  Y.)  349;  Spargur  v.  Prentiss 
(Neb.)  92  N.  W.  300;  Allen  v.  Henn,  197  111. 
486;  Metzger  v.  Morley,  99  111.  App.  280; 
Rinehardt  v.  Reifers,  158  Ind.  675;  Rush  v. 
Landers,  107  La.  549;  Fields  v.  Daisy  Min. 
Co.,  25  Utah,  76;  United  States  Mortg.  Co.  v. 
Marquam,  41  Or.  391,  69  Pac.  37,  41;  Pinkird 
V.  Willis  (Tex.  Civ.  App.)  67  S.  W.  135;  Tar- 
rant County  V.  Reid  (Tex.  Civ.  App.)  67  S 
W.  785:  Allen  v.  Henn,  197  111.  486;  Berry  v. 
Rood,  168  Mo.  316;  Thacker  Mfg.  Co.  v.  Mal- 
lory,  27  Wash.  670.  6S  Pac.  199.  By  abstract 
— Gerspach  v.  Barhyte  (Colo.  App.)  68  Pac. 
1057;  Dennis  v.  Spence,  80  Miss.  396;  Mor- 
ton V.  Clark,  181  Mass.  134;  Leonard  v. 
Harkleroad  (Tex.  Civ.  App.)  67  S.  W.  127; 
Clipper  Min.  Co.  v.  Ell  Min.  Co.,  29  Colo. 
377,  68  Pac.  286;  Harris  County  v.  Brady, 
115  Ga.  767;  Lange  v.  Heyer.  195  111.  420; 
Aldag  V.  Ott,  28  Ind.  App.  542;  Stadel  v. 
Aiklns,  65  Kan.  82.  68  Pac.  1088;  Rumney  v. 
Detroit,  etc..  Cattle  Co.  (Mich.)  89  N.  W. 
573;  Williams  v.  Stroub,  168  Mo;- 346:  Clark 
V.  Chicago  &  A.  R.  Co.,  93  Mo.  App.  456;  Ed- 
wards V.  Chicago  &.  A.  R.  Co.,  94  Mo.  App. 
36;  Rutledge  v.  Tarr,  95  Mo.  App.  265;  Ditt- 
man  Shoe  Co.  v.  Graff  (Neb.)  91  N.  W.  188. 
Where  all  the  evidence  relating  to  the  par- 
ticular question  on  which  a  nonsuit  was  or- 
dered is  preserved  it  is  sufficient — Goodale 
Lbr.  Co.  V.  Shaw,  41  Or.  544,  69  Pac.  546. 
Case  heard  on  agreed  statement  and  certain 
papers,  and  only  agreed  statement  included 
in   record— Scott   v.   Cox    (Tex.   Civ.   App.)    70 


168 


APPEAL  AND  REVIEW, 


required  to  show  in  the  record  evidence  sustaining  the  decree.^^  The  record  must 
affirmatively  show  that  it  contains  all  the  evidence/^  and  a  statement  that  the 
record  contains  all  that  is  "necessary  to  a  full  presentation  of  the  errors  complained 
of  is  not  sufficient,®^  nor  is  a  statement  that  the  "substance"  is  included,®*  nor 
that  the  record  contains  all  the  "testimony."®'*  It  has  been  held  that  the  showing 
that  all  evidence  is  included  need  not  be  express  but  only  by  a  fair  implication,®' 
and  where  it  appears  on  the  face  of  the  bill  that  its  statement  that  all  evidence 
is  included  is  incorrect,  the  evidence  cannot  be  reAriewed.®'  A  bill  stating  evidence 
and  tliat  thereupon  both  parties  rested  shows  that  it  contains  all  the  evidence.®' 
In  Michigan  there  must  be  findings  of  fact  to  authorize  a  review  of  the  evidence."' 
Existence  of  a  stipulated  fact  will  be  referred  to  the  time  of  commencing  suit 
rather  than  the  time  of  trial.^  A  plaintiff  appellee  must  see  that  the  record  sus- 
tains his  judgment  by  including  material  facts.- 

histructions. — The  instructions  given  or  refused  must  appear  properly  in  the 
record.'  The  giving  or  refusal  of  instructions  cannot  be  reviewed  imless  the  rec- 
ord contains  the  entire  charge,*  the  evidence  to  which  they  relate.'  the  issues  to 
which  they  relate:^  and  this  applies  particularly  to  instructions  withdrawing  part 
or  all  of  the  issues,"  and  the  record  must  show  that  it  contains  the  entire  charge.* 
Modification  of  charges  asked  must  be  shown  if  complained  of.® 


S.  W.  802.  All  evidence  In  condemnation 
proceedings  must  be  in  record  to  revie'sv 
it — Benton  Harbor  T.  R.  Co.  v.  King  (Mich.) 
91  N.  W.  641;  In  re  Rostraver  Road,  21  Pa. 
Super.  Ct.  195.  In  absence  of  evidence  from 
record  order  of  court  confirming  condemna- 
tion award  over  exceptions  to  the  verdict 
will  be  favored  by  presumption — Macfar- 
land  v.  Byrnes.  19  App.  D.  C.  531. 

91.  Jenkinson  v.  Koester.  S6  Minn.  155; 
Owen  V.  Palmour.  115  Ga.  6S3:  Home  Sav. 
Ass'n  V.  Noblesville  Church  (Ind.  App.)  64 
N.   E.   4:S;   Glos  v.   Cratty,   196  111.   193. 

92.  United  States  v.  Copper  Queen  Min. 
Co..  185  U.  S.  495;  Randall  v.  "Wadsworth. 
130  Ala.  633;  Miller  v.  Dailey.  136  Cal.  212. 
68  Pac.  1029;  Power  v.  Stocking.  26  Mont. 
478;  68  Pac.  857;  Ramsey  v.  Burns,  27  Mont. 
154,  69  Pac.  711;  Adkins  v.  Monmouth.  41 
Or.  266.  68  Pac.  737:  Olson  v.  Oregon  Short 
Line  R.  Co.,  24  Utah.  460,  68  Pac.  14  S; 
Young  V.  Hatch  (Colo.)  70  Pac.  693;  Craggs 
V.  Bohart  (Ind.  Ter.)  69  S.  "^.  931.  There 
being  no  presumption  that  the  record  con- 
tains all  the  evidence — "Watkins  v.  La  Mar. 
10  Kan.  App.  226.  69  Pac.  730.  But  see 
Bush  V.  Tecumseh  Nat.  Bank  (Neb.)  90 
N.   "W.   236. 

93.  Lange  v.  Heyer,   195  111.   420. 

94.  Hancock  v.  Shockman  (Ind.  T.)  69 
S.  W.  826. 

95.  Craggs  v.  Bohart  (Ind.  T.)  69  S.  W. 
931. 

96.  Cincinnati.  H.  &  D.  R.  Co.  v.  Thie- 
baud   (C.  C.  A.)    114  Fed.   918. 

97.  Greenfield  v.  Johnson  (Ind.  App.)  65 
N.  E.  542. 

98.  Mullin  V.  Johnson.  98  111.  App.   621. 

99.  "Wickes  v.  Pulfrey  (Mich.)  91  N.  W. 
638. 

1.  Glos  v.  Patterson,  195  111.  530. 

2.  O'Connall  v.  Thompson  etc.,  Co.,  72 
App.  Div.   (N.  Y.)    47. 

3.  Andrysiak  v.  Satkowski  (Ind.)  63  N. 
E.  S54.  65  N.  E.  2S6;  McCord  v.  Southern 
R.  Co..  130  N.  C.  491;  Green  v.  Tate  (Tex. 
Civ.  App.)   69  S.  W.  4S6. 

4.  Instructions   refused — Garr   v.   Cranney 


(Utah)  70  Pac.  853;  Beavers  v.  Bowen.  24  Ky. 
Law  Rep.  8S2;  Hancock  v.  Shockman  (Ind. 
T.)  69  S.  "W.  826;  Freeman,  etc..  News  Co.  v. 
Mencken.  115  Ga.  1017;  Cragsr.o  v.  Bohart 
and.  T.)  69  S.  W.  931;  Northern  Pac.  R. 
Co.  V.  Tynan  (C.  C.  A.)  119  Fed.  2SS;  Tojr.g- 
love  V.  Knox  (Fla.)  33  So.  427.  Ictmctions 
given — Rice  v.  "U'illiams  (Colo.  App.)  71  Pac. 
433;  Ball  V.  Marquis  (Iowa)  92  N.  W.  691; 
Crossen  v.  Grandy  (Or.)  70  Pac.  906;  Florida 
Cent.  &  P.  R.  Co.  v.  Seymour  (Fla.)  33  So. 
424;  Meyer  v.  Standard  Tel.  Co.  (Iowa) 
92  N.  W.  720;  Lord  v.  Guyot  (Colo.)  70  Pac 
683;  Timmonds  v.  Twomey  (Ind.^  66  N. 
E.  446;  Godfrey  v.  Hutchinson  Grocer  Co. 
(Okl.)  71  Pac.  627;  Lesser  Cotton  Co.  v. 
St.  Louis,  etc.,  R.  Co.  (C.  C.  A)  114  Fed. 
133. 

5.  Instmctlons  refused — F'lorida  Cent.  & 
P.  R.  Co.  V.  Seymour  (Fla.)  33  So.  424: 
Younglove  v.  Knox  (Fla.)  33  So.  427:  Volu- 
sia County  Bank  v.  Bigelow  (Fla.)  33  So.  704; 
Mexican  Cent-  R.  Co.  v.  Wilder  (C.  C.  A.) 
114  Fed.  708;  Sherwin  v.  Rutland  R.  Co.. 
74  Vt.  1.  Instructions  given — Rice  v.  Will- 
iams (Colo.  App.)  71  Pac.  433:  Ball  v.  Mar- 
quis (Iowa)  92  N.  "W.  691;  Crossen  v.  Grandy 
(Or.)  70  Pac.  906;  Meyer  v.  Standard  Tel. 
Co.  (Iowa)  92  N.  W.  720;  Lord  v.  Guyot 
(Colo.)  70  Pac.  6S3:  Timmonds  v.  Twomey 
(Ind.)  66  N.  E.  446;  Lesser  Cotton  Co.  v. 
St.  Louis,  etc.,  R.  Co.  (C.  C.  A.)  114  Fed. 
133.  But  it  Is  otherwise  where  the  instruc- 
tions could  not  have  been  good  under  any 
.=tite  of  the  evidence — Downing  v.  State 
.\\"yo.)   69  Pac.  264. 

6.  Hutchins  v.  Missouri  Pac.  R.  Co.  (Mo. 
App.)    71   S.  W.   473. 

7.  Deering  &  Co.  v.  Hannah.  93  Mo.  App. 
618;  Advance  Thresher  Co.  v.  Esteb.  41  Or. 
469,  69  Pac.  447.  Plaintiff  had  dismissed 
two  counts  and  filed  another  and  it  did  not 
appear  what  change  if  any  was  thereby 
made.  It  w'as  objected  that  the  instruc- 
tions did  not  call  attention  to  the  dis- 
missal of  the  two  counts — Malott  v.  Hood. 
201   111.   202. 


RESTRICTION  TO  RECORD. 


169 


An  exception  to  an  instruction  must  show  prejudice  to  the  party  making  it  in 
order  to  show  error  in  the  instruction.^"  If  an  appellant  alleges  error  in  the  re- 
fusal of  an  instruction  that  he  had  complied  with  his  contract,  in  an  action  to 
enforce  it,  his  abstract  must  show  such  compliance.^^  Instructions  not  given  in 
the  bill  of  exceptions  will  be  presumed  to  have  been  properly  given  or  refused,^* 
but  it  cannot  be  presumed  that  the  judge  below  performed  his  duty  or  that  the 
instructions  in  the  record  constitute  all  that  were  given  or  refused,  where  they 
were  neither  signed  by  the  judge  nor  indorsed.*'  It  will  be  presumed  that  suffi- 
cient instructions  were  given  for  proper  submission  of  a  question.**  If  it  can 
be  presumed  consistently  with  the  statement  in  the  record  of  the  effect  of  instruc- 
tions ofiered  in  evidence,  where  only  the  general  effect  is  given,  it  will  be  pre- 
sumed that  they  supported  the  conclusions  of  the  court. *^  Where  no  instructions 
appeared  to  have  been  given  or  refused,  it  must  be  presumed  that  the  court  gave  the 
correct  rule  for  the  measure  of  damages.*^  It  will  not  be  presumed  that  the  at- 
tention of  the  court  was  not  called  to  the  omission  of  a  word  from  an  instruction 
by  mistake,  but  rather  that  errors  in  instructions  as  to  which  exceptions  are  taken 
were  pointed  out  to  the  court  by  coimsel.*"  An  exception  for  "defendant"  will  be  pre- 
sumed to  have  been  taken  for  the  defendant  which  the  attorney  represented,  where 
it  appears  that  he  was  authorized  only  to  act  for  one  of  two  defendants.*^  Where 
there  are  exceptions  to  instructions  in  the  transcript,  after  the  charge  and  before 
the  record  of  submission  to  the  jury  and  entry  of  the  verdict,  with  an  entry  which 
shows  them  to  have  been  filed  with  the  instructions,  and  a  certificate  by  the  clerk 
that  they  are  a  part  of  the  record,  the  same  presumption  will  obtain  as  when  nota- 
tion is  made  by  counsel  on  the  written  charges,*^  unless  necessity  is  shown  for  an 
instruction  that  it  was  properly  refused.^" 

Verdict  or  findings  and  judgment. — Necessary  findings  must  be  made  and  must 
appear.^*  Propositions  which  the  court  below  of  its  own  motion  held  to  be  law 
are  of  the  record  though  not  requested  and  will  be  reviewed  like  instructions  given 
by  the  court  on  its  owti  motion.^^  If  no  propositions  of  law  are  submitted  to  the 
court  below,  it  will  be  presumed  that  all  questions  of  law  arising  are  properly  de- 
cided.^' The  conclusions  of  law  cannot  be  reviewed  when  the  findings  of  fact 
are  not  in  the  record.^*  The  relevancy  of  questions  submitted  to  the  jury  cannot 
be  reviewed  in  the  absence  of  the  evidence,^^  nor  can  the  amount  of  the  verdict.^' 
A  general  verdict,  together  with  answers  to  specific  questions,  though  the  latter  are 
not  sufficiently  complete  to  authorize  a  judgment,  will  be  presumed  to  cover  all  facts 
necessary  to  a  judgment  on  the  special  findings,  where  no  inconsistency  is  shown 
between  the  general  verdict  and  the  special  findings.^'^  It  will  be  presumed  that 
the  jury  followed  the  instructions  of  the  court.^^     The  authority  of  the  judge  will 


8.  Dubois  V.  Docker  (C.  C.  A.)  114  Fed. 
267;  DanviUe  v.  Schultz,  99  lU.  App.  287; 
Board  of  Com'rs  v.  Gibson,  158  Ind.  471.  But 
it  need  not  directly  appear  tliat  no  other 
instructions  were  given — Warren  v.  Nash, 
24   Ky.  Law   Rep.   479. 

0.  Grand  Lodge  v.  Bunkers,  23  Ohio  Cir. 
Ct.  487. 

10.  Copeland  v.  Hewett,  96  Me.   525. 

11.  Way  V.   Miller,   91  Mo.   App.   53. 

12.  Corey   v.    Havener,    182   Mass.    250. 

IS.  Under  Code,  Colo.  §  187.  subds.  6,  7 — 
Lord  V.  Guyot   (Colo.)    70  Pac.   683. 

14.  Lee  v.  Tarplin   (Mass.)    66  N.  B.  431. 

15.  Holland  v.  Cunllff  (Mo.  App.)  69  S. 
W.   737. 

16.  Ottofy  V.  Keyes,   91  Mo.  App.   146. 

17.  Carleton  Min.  Co.  v.  Ryan,  29  Colo. 
401,   68  Pac.  279. 


18.  Bowen  v.  O'Halr,  29  Ind.  App.  466. 

19.  Lincoln  v.  Sager   (Neb.)   89  N.  W.  617. 

20.  Glanz  v.  Chicago,  etc.,  R.  Co.  (Iowa) 
93  N.  W.   575. 

21.  Necessary  findings  to  support  de- 
cision not  presumed  though  recited  by  de- 
cree— In  re  Sherwood's  Estate,  75  App.  Div. 
(N.  Y.)   342. 

22.  London  G.  &  A.  Co.  v.  Mosness,  98 
111.   App.   651. 

23.  Hercules  C.  &  M.  Co.  v.  Frazer,  102 
111.  App.   307. 

24.  Lillard   v.   Mather,    28    Ind.   App.    583. 

25.  Atchison,  T.  &  S.  F.  R.  Co.  V.  Scaggs, 
64  Kan.   561,  67  Pac.   1103. 

26.  Huff  V.   Parker    (Miss.)    31    So.    833. 

27.  Eklund   v.   Martin,    87   Minn.    441. 

28.  Rosser  v.  Western  Union  Tel.  Co., 
130  N.   C.    251.     Where  in   an  action  brought 


•  70  APPEAL,  AND  REVIEW. 

be  presumed  to  have  been  given  to  the  act  of  the  clerk  in  making  a  record  of  the 
refiling  of  the  finding.**  It  will  be  presumed  that  a  default  entered  by  the  court  on 
the  same  day  on  which  defendant  filed  a  general  demurrer  was  entered  before  the 
filmv  of  the  demuirer  where  it  does  not  appear  that  the  demurrer  was  on  file  at  time 
of  entrr.**  A  decree  of  tlismissal  on  general  demurrar  will  be  presumed  to  have 
been  upon  the  merits  and  not  for  want  of  jurisdiction  unless  it  appears  otherwise 
from  the  decree.** 

F.  Bulin^  peculiar  to  province  of  trial  court.  1.  Discretionary  rulings  in  gen- 
eral; interlocutory  and  prorisional  orders. — The  discretion  of  the  lov^er  court  is  not 
an  unlimited  power,  and  its  ruUngs  and  Jndgments  during  the  progress  of  the 
cause  are  open  to  review,**  but  discretionary  acts  and  rulings  wiU  never  be  disturbed 
unlffis  abuse  of  the  discretion  is  shown.**  The  rule  applies  to  the  refusal  of  a  pre- 
siding judge  to  remoTc  a  proceeding  for  mandamus  to  a  court  of  equity,**  and  grant 
or  refusal  of  a  change  of  venue,**  and  to  allowance  or  refusal  of  an  order  for  exam- 
ination of  a  partr  or  corporate  officer  to  obtain  facts  on  which  to  found  an  ac^on 
against  a  corporation,**  and  if  it  does  not  appear  that  irreparable  injury  wiU  resalt, 
to  an  order  for  the  production  of  books  and  papers,*'  and  the  reference  of  a  case 
where  there  is  a  coiiict  in  the  evidence  as  to  whether  the  issue  involves  the  ex- 
amination of  an  account,**  and  the  overruling  of  a  motion  to  recommit  a  referee's 
report.**  The  granting  or  denial  of  a  motion  for  a  continuance**  or  an  ancillary 
order  appointing  a  receiver,**  or  grant  or  refusal  of  a  temporary  injundion,*^  or  the 
vacation  or  di^olution  of  a  preliminary  injunction**  and  a  ruling  on  an  applica- 
tion for  additional  temporary  alimony,**  will  not  be  reviewed  except  where  clear 
abuse  of  discrddon  is  shown.  After  final  judgment,  the  discretion  of  the  trial 
court  in  assuming  jurisdiction  of  an  action  by  the  public  administrator  for  the 


on  two  coEr.  :=       --     ■''-  ==  tras  aban- 

doned and  '  -  instruc- 

tion   as    to  :    to    be 

found   for    z  -raed 

that    the    v  :ant 

^rtaich  had  ;^:.     :;    the 

iiBtnaction=  ^  — ; . .  . .  .lag  v.  Moore. 

US  CaL  ISl       -    - 

S9L     "Verxier   t.  ''     :--.     1. 

aCL    Grant  v.  C : :    -  -     "    I    "  i  (Ifeb.) 

93  X.  W.  185. 

SI-  Bradford  Belting  Co.  v.  Klstnger- 
Jsnn  Cx.  lis  Fed.  811,  51  CL  C.  A.  483. 

32.      C-":s^~e    v.    Uacadaras.    91   Mo.   App. 

So.  :'-t"           ^r.     7r!"e-Tlng'    party    trom. 

e^-^     :  -               .    ^r    proceeding    be- 

-    ;  :-      -        "^fsTilt — Moore      ▼. 

-       -  -  =  7          930;  Hollls- 

-i-  --  " -  -    ^        :   :     ^7   IS. 

r^  -      ;  iing  for 

-i  -    lair   to 

-  s--?   pre- 

.   ■  -  -^  .-;.:::    591. 


~airre  t.  Manders : . 

rapreme    conr: 
^    ground  that 
-  —  -■  T^  %te  him. 
r-loir — Jn 


:.)   90  N. 


-ler- 
rjay 


3S.  Salem  Traction  Oo.  ▼.  Anson.  41  Or 
5SS,  C7  Pac  1015:  «9  Pac  675. 

39l     Jeffers  ▼.  Pease,  74  Vt.  215. 

^•l  Hannnm  ▼.  TTIll,  52  "W.  Va.  16fi:  Miles 
V.  Ballantine  CNeh.)  93  K.  W.  TOS:  Scott  v. 
Boyd  (Va.)  42  S.  K.  918.  On  appeal  from  a 
final  decree — United  States  v.  Rio  Grande 
Irr.  Co..  184  U.  S.  416;  Empire  Coal  Co.  ▼. 
Hon  Coal  Co..  51  W.  Va.  474.  "Where  no 
objections  have  been  filed — Ida  Co.  Sar. 
Bank  ▼.  Seidensticker  (Iowa)   93  N.  W.  S62. 

41.  St.  I^onls.  V.  ft  T.  H.  R.  Col  ▼.  Van- 
dalla.  103  IlL  App.  363. 

4S.  Steams-Rog^er  Mfsr.  Co.  ▼.  Brown,  114 
Fed.  939.  52  C-  C  A.  559.  Temporary  in- 
jonction  in  patent  case  on  giving  bond  'will 
stand  if  Infringement  cannot  be  determined 
nntn  final  hearing — Steams-Rogers  Mfg.  Co. 
V.  Brown  (C  C.  A.)  114  Fed.  939.  In  an- 
cillary snit  foUo^red  by  a  similar  order  of 
another  court  In  the  principal  case — ^United 
States  Gramophone  Co.  v.  Seaman.  113  Fed. 
745.  51  C.  CL  A.  419. 

4X.  Dickson  V.  Dows  (N.  D.)  92  X.  W. 
797.  Vacating  temporary  Injunction  re- 
straining the  laying  of  a  railroad  on  a 
street  during  the  pendency  of  an  action  to 
determine  rights  to  the  street — ^Roches 
ter  &  E.  R.  R.  Co.  v.  Monroe  Coianty  Elec 
Belt  Une  Co..  78  App.  Div.  (N.  T.)  38.  Ap- 
plied for  on  bill,  answer  and  affidavits — Baya 
V.  Lake  <5ty  (Fla.)  33  So.  400.  Where  ex 
parte  proofs  on  hearing  of  a  motion  for  pre- 
jonlnary  injunction  are  conflicting — Ctick- 
ering  v.  Chickering  (G  C  A.)  120  Fed-  69. 

44.     MoUey  t.  Motley.  97  Mo.  App.  473. 


DISCRETIONARY  RULINGS. 


171 


death  of  a  nonresident  killed  in  a  foreign  state  will  not  be  disturbed.*'  Wliether 
an  injunction  shall  be  made  perpetual  leaving  defendant  to  another  remedy  or 
whether  it  shall  be  made  on  terms  adjusting  the  rights  of  the  parties  is  discretionary 
and  will  not  be  reviewed.*®  Where  it  appears  that  a  preliminary  restraining  order 
was  granted  before  answer  filed  and  that  the  opposition  to  the  motion  was  made 
on  affidavits  only,  the  discretion  of  the  court  will  not  be  disturbed  by  a  review  of  the 
merits  of  the  case,  where  the  bill  shows  a  right  to  preliminary  relief.*'^  On  the 
question  whether  discretion  was  abused  in  granting  an  injunctional  order,  the 
protection  afforded  defendant  will  be  considered.**  An  award  of  alimony,*^  or  of 
a  share  of  the  community  property  to  a  divorced  person  when  evidently  the  result 
of  a  proper  discretion,  will  be  sustained. ^° 

Dismissal  and  nonsuit. — Euling  on  an  application  for  dismissal,^^  without 
prejudice  for  failure  of  proof ,'^^  will  not  be  reviewed,  but  will  be  presumed  to  have 
been  proper  where  neither  the  record  nor  the  statement  of  facts  filed  show  the 
grounds  thereof.^^  All  facts  warranted  by  the  evidence  must  be  presumed  as  hav- 
ing been  settled  for  plaintiff,  where  the  verdict  was  directed  for  him  on  a  certain 
part  of  the  claim  and  dismissed  as  to  other  items  without  evidence.^*  Failure  of 
the  court  to  dismiss  on  its  own  motion  an  action  to  enforce  a  contract  against  public 
policy  may  be  reviewed,  since  the  determination  of  the  question  of  public  policy  is 
not  discretionary,  but  involves  a  decision  of  law.^^  Allegations  of  fact  are  taken  as 
true  on  appeal  from  dismissal  on  complaint  and  opening,^*^  or  review  of  a  nonsuit,^' 
and  on  appeal  from  a  judgment  dismissing  an  action  for  want  of  evidence  plaintiff 
is  entitled  to  the  most  favorable  inferences  that  may  be  drawn  from  the  evidence,^* 
and  will  be  entitled  to  have  disputed  facts  treated  as  found  in  his  favor. ^® 

Orders  relating  to  pleadings. — Unless  a  gross  abuse  of  discretion  is  shown,  the 
granting  or  refusal  of  leave  to  file  an  amended  and  supplemental  bill,^°  or  a  sup- 
plemental answer,®^  denial  of  a  motion  to  strike  a  paragraph  from  a  complaint  as 
surplusage,®^  refusal  of  the  lower  court  after  reversal  to  allow  an  amendment  bv 
plaintiff  pending  the  rendition  of  a  judgment  following  the  mandate,"^  refusal  of 
leave  to  further  plead  after  one  amendment  after  successful  demurrer,®*  to  allow 
the  filing  of  a  supplemental  answer  which  does  not  set  forth  facts  constituting,  if 
true,  a  bar  to  the  action,®^  to  permit  defendant  an  amendment  to  his  answer  to  a 
bill  at  the  hearing,®®  or  allowance  of  answer  or  reply  or  other  act  after  the  tune 
limited,®^  or  during  the  trial,  will  not  be  reviewed.®*     The  rule  must  be  otherwise 


45.  Hoes  V.  New  York,  N.  H.  &  H.  R.  Co., 
73  App.  Div.   (N.  Y.)   363. 

4G.  Peck  V.  Schenectady  R.  Co.,  170  N.  Y. 
298. 

47.  Whitson  v.  Columbia  Phonograph  Co., 
18  App.  D.  C.  565. 

48.  Amount  of  bond  and  privilege  of  dis- 
solving on  giving  counter  security — Ameri- 
can Co.  V.  Cimiotti  Co.  (C.  C.  A.)  118  Fed. 
838. 

49.  Breedlove  v.  Breedlove,  27  Ind.  App. 
560. 

50.  Gorman  v.  Gorman,  134  Cal.  378,  66 
Pac.   313. 

51.  Bee  Building  Co.  v.  Dalton  (Neb.)  93 
N.  W.  930;   Friedrich  v.   Fergen,  15  S.  D.   541. 

52.  Especially  where  none  of  the  evidence 
appears  in  the  record — Ebner  v.  Zimmerly 
(C.  C.  A.)   118  Fed.  818. 

53.  Johnson  v.  Spokane,  29  Wash.  730,  70 
Pac.   122. 

54.  Becker  v.  New  York,  170  N.  Y.  219. 
5.5.     Cullison  v.  Downing   (Or.)    71  Pac.   70. 
56.     Montgomery    v.    Boyd,    78    App.    Div. 

(N.  Y.)    64. 


57.  Veazey  v.  Allen,   173  N.  Y.   359. 

58.  Dismissal  of  action  for  negligence  in 
placing  an  obstruction  in  street  because  of 
insufficient  evidence  to  connect  the  defend- 
ant with  the  act — Parkes  v.  Metropolitan 
St.   R.  Co..   37  Misc.  Rep.    (N.  Y.)    844. 

59.  Viniitaker  v.  Staten  Island  Midland  R. 
Co.,  72  App.   Div.   (N.  Y.)   468. 

CO.  Berliner  Gramophone  Co.  v.  Seaman, 
113  Fed.  750,  51  C.  C.  A.  440;  Berliner  Gram- 
ophone Co.  v.  Same   (C.  C.  A.)  115  Fed.  806. 

61.     Balk  V.  Harris,   130  N.  C.   381. 

63.  Marx  v.   Miller,    134   Ala.  .347. 

65.  Kelly  V.  New  Haven  Steamboat  Co. 
<Ccnn.)   52  Atl.  261. 

64.  Under    Mills'    Ann.    Code,    §§    73, 


King 
984. 

65. 

66. 

67. 


75— 
V.   Mecklenburg    (Colo.    App.)    68    Pac. 


Balk  v.  Harris,  130  N.  C.  381. 

Tufts  V.  Waxraan,   181  Mass-   120. 

Under  Code,  §  274 — White  v.  Lokey, 
131  N.  C.  72;  Best  v.  British,  etc.,  Mortg.  Co., 
131  N.  C.  70. 

68.     Hubenka    V.    Vach     (Neb.)     89    N.    W. 
789. 


172 


APPEAL  AND  REVIEW. 


if  the  facts  stated  in  the  supplemental  answer,  if  true,  wotild  constitute  a  bar  to  the 
action."  Befnsal  to  allow  a  complaint  to  be  amended,  if  on  erroneous  grounds,  will 
be  reviewed  though  generally  such  acts  are  discretioiiary.'* 

Rulings  relating  to  trial  or  evidence. — Bulings  relating  to  the  order  and  sequence 
of  proofe  offered,"  the  admission  of  CTidence  of  a  witness  who  has  disobeyed  an 
order  for  exclusion  of  witneses,'*  the  allowance  of  an  interpreter  for  witness,"' 
the  determination  by  the  court  as  to  what  transactions  are  properly  considered  by  the 
jury  as  connected  with  the  matter  in  dispute,"  the  exclusion  of  remote  evidence,^' 
the  decision  as  to  the  qualifications  of  a  witness  offered  as  an  expert,'*  the  ruling 
on  the  right  to  cross-examine  persons  whose  aJOSdavits  were  offered,"  the  latitude 
allowed  on  cross-examination  of  a  witness,^^  are  all  matters  of  discretion  for  the 
lower  court.  Though  the  suspension  or  enforcement  of  the  rule  limiting  cross- 
examinations  to  evidence  in  chief  to  the  order  in  which  the  evidence  is  introduced 
is  discretionary,  the  judgment  may  be  reversed  on  appeal  for  the  action  of  the 
lower  court  in  this  regard,  that  serious  injury  may  not  result  therefrom  to  the 
li^ts  of  a  party.'* 

The  trial  of  cases  outside  of  their  r^ular  order  by  direction  of  the  court  will 
be  presumed  to  have  been  for  sufficient  cause  in  the  absence  of  a  contrary  showing.** 
The  control  of  the  argument  of  counsel,**  or  the  rrf)uke  for  improper  argument,** 
or  the  allowance  of  a  motion  to  withdraw  a  juror  because  of  improper  remarks  of 
counsel  in  summing  up,**  the  action  of  the  court  regarding  improper  comment  by 
an  attorney  during  croes-examination,**  and  the  limit  of  time  for  argument,*'  are 
all  discretionary  matters  and  will  not  be  reviewed  unle^  the  restrictions  are  unjust. 

Befusal  to  direct  a  verdid:  will  not  be  disturbed.**  The  evidence  of  the  mov- 
ing party  only  vrill  be  considered,  in  so  far  as  it  supports  the  case  of  the  other  party, 
in  determining  the  corredtness  of  a  directed  verdict.*'  Each  party  will  be  given 
the  benefit  of  all  iz^f erences  to  be  drawn  from  the  evidence,  where  all  the  evidence 


Ba: 

Mar 


13: 


Pe-ii?j-lvaz>ia.  Co.    (C  C. 


7.  allo'w- 
"rder  for 
T.  Menk, 


of  J.   wiiiit;  -  ^       -i"    ;-■-;- 

daced    on  i —  "    '   - 

iams  ▼.  S:  r  -  '  r    =  =     ~ 

of  further 

ment  and  -  —  = 

Oonklln.    t 

open   Issn^;  -~  -  ; "'    ■ 

ceedings   i;    c-r:...:    -:_ri   is^         r^  -;  — 

Fifer  v.  Bitter  ilnd. j  *4  N.  n. 

lowance  of  testimony  ont   of       -^^—  '     ?=    = 

Blsin  Butter  Co.  v.  Hartfori    :  : 

20  Pa.  Snper.  Ct.  3S4. 

TS.    Mnrray  ▼.   Allerton    (Nr  :•" 

51S. 

73.     ^rxoxowski  ▼.  Xatlonal  Box  Oo,.   104 
m.  Appl  338. 

T4.     Buck  ▼.   Hogeboom    fXeb.)    »•  K.   "W. 
<S3S. 

75.     Sitaldlns  -r.  New  Hampshire  Fire  Ins. 
Co„  71  N-  EL  441. 

T«.     "Watriss  v.  TrendaU,  74  "Vt-  54. 

57.     For    injonction — Union    Terminal    Co. 
V.  Wilmar  ft  S.  F.  B.  Col,  US  Iowa,  392. 

78.    Tinglins    ▼•    Bedwine    (OkL)    SO    Pac 
»10. 


:r  Co.  IT.  Vl^addil].  99  IlL  App.  334. 
an  V.  Boyd,  92  Mo.  App.   412. 
13  V.  Ketropolitan  St.  B.  Co..  173 

?:reeter  (Vt.)  54  AtL  185. 
-.   Toons    (Xeb.)    89   N.   "W. 

=  se    (Ga.)    4?    5     Z     t^' 

::  ;     'Ga.)     42     5      Z      4-" 

:       -       1     T   *T31,  gives    :r-    :r    .1 
r    :  verdict — I  -  r  r. 

'    ~  -        •  ?.  r  f  usal  "bel '~   : :     - .  - 


review  e_ 
tion  for 
Gardner 
The  ref 
ant   at    : 
not   be 
of  the  ^ 
any  ev: 
rtiilmM — '_ 
UL  lis. 

87.      2Cr 


Co.  V.  Loomis.  201 


Ns:     3izk   V.    Stebblns,   15 


DISCRETIONARY  RULINGS. 


173 


ofTered  by  one  was  rejected  b}^  the  court  and  a  verdict  directed  for  the  other.^*     The 
allowance  of  a  demurrer  to  the  evidence  may  be  reviewed  on  writ  of  error.^^ 

Grant  of  new  trial  or  rehearing  or  settlement  of  exceptions. — An  order  granting 
or  refusing  a  new  trial  will  not  be  reviewed  unless  the  discretion  of  the  court  has 
been  abused,®"  where  there  is  a  substantial  conflict  in  the  evidence/^  or  the  evidence 
is  partly  parol,''^  though  the  verdict  was  rendered  in  the  absence  of  either  party,®' 
and  though  the  judgment  might  have  been  affirmed/*  and  this  is  especially  true  on 
an  award  of  a  first  new  trial  where  the  evidence  is  conflicting,®^  or  where  based 
solely  on  a  question  of  law,®^  or  where  the  defeated  party  made  no  motion  for  judg- 
ment or  nonsuit  on  the  trial,®^  or  where  it  does  not  appear  that  the  verdict  was 
absolutely  required  by  the  evidence,®*  and  in  reviewing  such  case,  the  court  will 
only  consider  the  evidence  so  far  as  necessary  to  determine  whether  the  trial  court 
properly  exercised  its  discretion,®®  but  the  review  of  an  allowance  of  a  new  trial 
cannot  be  refused  merely  on  the  ground  that  the  trial  court  was  in  a  better  position 
to  understand  the  situation  than  the  appeal  court.^  A  finding  on  motion  for  a  new 
trial  that  both  parties  consented  to  the  presence  of  exhibits  in  the  jury  room  is  con- 
clusive.^ A  judgment  will  not  be  reversed  for  refusal  to  grant  a  new  trial  on  ac- 
count of  excessive  damages,  unless  the  evidence  shows  passion  or  prejudice  on  the 
part  of  the  jury.'     The  grant  of  a  new  trial  conditioned  on  payment  of  costs,*  or  be- 


88.     Horbach  v.  Boyd  (Neb.)   89  N.  W.  644. 

SO.  University  of  Va.  v.  Snyder  (Va.)  42 
S.  E.  337. 

00.  Walker  v.  Moser  (C.  C.  A.)  117  Fed. 
230;  Cliancey  v.  County  Court.  51  W.  Va.  252; 
Baker  v.  Branan,  115  Ga.  670;  Jones  v.  Spence. 
115  Ga.  79^;  Bevering  v.  Smith  (Iowa)  90 
N.  W.  840;  Ortt  v.  Leonhardt  (Mo.  App.) 
68  S.  W.  577;  Laclede  Power  Co.  v.  Nash- 
Smith  Tea  Co..  95  Mo.  App.  412;  Manzig-ian 
V.  Boyajian  (Mass.)  66  N.  E.  413;  Hanson  v. 
Diamond  Iron  Min.  Co..  87  Minn.  505;  Ward 
V.  Joslin,  186  U.  S.  142;  Jordan  v.  Parsons. 
115  Ga.  455;  Hayward  v.  Lang-maid,  181 
Mass.  426;  Slattery  v.  Supreme  Tent,  19  Pa. 
Super.  Ct.  108;  Alabama  G.  S.  R.  Co.  v.  Ham- 
ilton. 135  Ala.  343;  Harloe  v.  Berwick,  138 
Cal.  xlx.,  70  Pac.  1060;  St.  Louis  Trust  Co. 
V.  Murmann,  90  Mo.  App.  555;  Merrill  v. 
Brantley,  133  Ala.  537;  McCormick  Harvest- 
ing- Mach.  Co.  V.  Calta,  86  Minn.  287;  Cope- 
land  V.  Copeland,  64  S.  C.  251.  On  ground  of 
insufficiency  of  evidence — Burr  v.  Harty 
(Conn.)  52  Atl.  724;  Lammers  v.  Butler- 
Ryan  Co.  (Minn.)  92  N.  "W.  523;  Vastine  v. 
Rex,  93  Mo.  App.  93;  State  v.  Todd,  92  Mo. 
App.  1;  Jangraw  v.  Mee  (Vt.)  54  Atl.  189; 
Southern  R.  Co.  v.  Lollar,  135  Ala.  375. 
There  must  be  a  clear  showing  of  prejudice 
— Tradewater  Coal  Co.  v.  Lee,  24  Ky.  Law 
Rep.  215.  It  Is  sufficient  that  there  was 
some  evidence  supporting  the  verdict — At- 
lanta V.  Milam,  115  Ga.  15;  Haltiwanger  v. 
Columbia,  N.  &  L.  R.  Co.,  64  S.  C.  7;  Manhat- 
tan Oil  Co.  V.  Richardson  Lubricating  Co. 
(C.  C.  A.)  113  Fed.  923.  Insufficiency  of 
evidence  as  shown  by  character  thereof  and 
of  the  witnesses,  would  justify  setting  aside 
a  verdict  after  denial  of  a  new  trial  for  in- 
sufficiency of  evidence — Cole  v.  Detroit  Elec. 
R.  Co.  (Mich.)  92  N.  W.  935.  Sufficiency  of 
evidence  to  show  that  the  trial  judge  ex- 
ceeded his  discretion  in  overruling  a  mo- 
tion for  a  new  trial  In  a  civil  case  for  un- 
due influence  on  the  jury — Hall-Moody  Inst, 
v.  Copass,  108  Tenn.  582.  Where  it  appears 
from  the  record  on  denial  of  defendant's 
motion   for   a   new    trial   that   plaintiff's    evi- 


dence does  not  sustain  the  theory  set  up  in 
the  declaration — Western  &  A.  R.  Co.  v. 
Hunt  (Ga.)  42  S.  B.  785.  Where  contribu- 
tory negligence  is  plainly  shown  by  evi- 
dence in  action  for  personal  injuries  and 
no  negligence  is  shown  on  part  of  defend- 
ant, refusal  of  his  motion  for  new  trial 
after  verdict  for  plaintiff,  will  be  ground 
for  reversal — Birmingham  R.,  L.  &  P.  Co. 
V.  Owens,  135  Ala.  154.  Motion  for  new 
trial  on  the  ground  of  newly  discovered 
evidence,  the  facts  being  contradictory — 
Culp  V.  Mulvane  (Kan.)  71  Pac.  273;  Ander- 
son V.  Medbery  (S.  D.)  92  N.  W.  1087;  San 
Antonio  &  A.  P.  R.  Co.  v.  Moore  (Tex.  Civ. 
App.)    72  S.  W.   226. 

91.  Sullivan  v.  Market  St.  R.  Co.,  136 
Cal.  479.  69  Pac.  143;  Campbell  v.  Great 
Falls,  27  Mont.  37,  69  Pac.  114;  Rand  v. 
Kipp,   27  Mont.  138,   69  Pac.  714. 

92.  Ottumwa  Nat.  Bank  v.  Totten,  94  Mo. 
App.  596. 

93. 
259. 


White  V.  Hoster  Brew.  Co.,  51  W.  Va. 
Louisville  v.  Johnson,  24  Ky.  Law  Rep. 


94. 

685. 

95.  Seifert  v.  Freeman,  115  Ga.  353;  Allen 
V.  Lumpkin  (Ga.)  43  S.  E.  54. 

96.  Macon  Consol.  St.  R.  Co.  v.  Jones 
(Ga.)   42  S.  E.  468. 

97.  Ruckman  v.  Dormond  (Or.)  70  Pac. 
707;  Knox  v.  Ward,  38  Misc.  Rep.  (N.  Y.) 
801. 

98.  Cox  v.  Atkinson,  115  Ga.  723;  Fenn 
V.  Maddox,  115  Ga.  795;  Thornton  v.  Travel- 
lers'  Ins.  Co.,   116  Ga.  121. 

99.  Pengilly  v.  Case  Threshing  Mach.  Co. 
(N.  D.)    91  N.  W.  63. 

1.  Reeder  v.  Traders'  Nat.  Bank,  28  Wash. 
139,  68  Pac.  461. 

2.  "U'alker  v.  Newton,  9  Detroit  Leg.  N. 
151,  90  N.  W.   328. 

3.  Morton  v.  Moran,  30  Wash.  362,  70 
Pac.  968.  Damages  for  unlawful  appropria- 
tion of  telegraph  right  of  way  over  plain- 
tiff's lands — Phillips  V.  Postal  Tel.  Cable 
Co.,   130  N.  C.  513. 


174 


APPEAL  AND  REViE\V, 


cause  the  verdict  is  against  the  weight  of  evidence,  without  imposing  pa5Tnent  of 
costs  as  a  condition,  will  not  be  disturbed  where  the  verdict  appears  unsupported 
by  the  evidence."  The  grant  of  a  new  trial  will  be  sustained  for  error  in  directing  a 
verdict  where  the  evidence  will  warrant  recovery  on  any  ground  within  plaintiff's 
pleadings,®  or  where  it  appears  that  the  jury  after  long  deliberation  received  the  im- 
pression from  the  court's  instructions  that  they  would  not  be  discharged  until  they 
agreed.'  The  reasons  given  by  the  lower  court  in  its  opinion  for  granting  a  new 
trial  will  not  limit  the  action  of  the  court  of  appeal  where  the  order  was  general,* 
but  if  the  order  can  be  sustained  on  any  ground  assigned,  it  will  be  aflarmed  though 
the  trial  court  specified  a  particular  ground  for  allowance,^  or  where  the  order  was 
general  and  one  of  the  grounds  was  insufficiency  of  e\idence,^''  for  the  reason  that 
defendant  was  deprived  of  the  testimony  of  a  certain  witness  though  the  witness 
properly  refused  to  testify ,^^  and  the  appeal  court  will  not  determine  whether  the 
judgment  is  the  proper  legal  conclusion  from  the  facts.^^  An  order  granting  a  new 
trial  based  only  on  the  legal  conclusion  that  the  special  verdict  was  inconsistent  and 
evasive  may  be  reviewed  as  not  within  the  court's  discretion.^^  If  a  failure  to 
prosecute  a  motion  for  a  new  trial  is  not  sufficiently  excused,  refusal  to  reinstate  the 
motion  after  dismissal  will  not  be  disturbed.^*  A  determination  as  to  the  suffi- 
ciencv  and  diligence  necessary  to  obtain  a  new  trial  for  newly  discovered  evidence 
will  not  be  disturbed  except  on  the  most  comdncing  grounds.^^  The  action  below  in 
setting  aside  a  judgment  and  granting  a  new  trial  will  be  presumed  to  have  been 
regularly  taken  on  sufficient  evidence,^''  and  if  the  motion  is  made  on  several  grounds 
and  allowed,  it  will  be  presumed  that  it  was  allowed  for  the  one  showing  an  error, 
if  the  ground  is  not  shown  on  the  record  /^  but  it  cannot  be  presumed  that  the  mo- 
tion was  filed  within  the  statutory  time,^^  nor  that  the  court  heard  evidence  outside 
the  affidavits  on  a  motion  for  a  new  trial  where  no  such  evidence  appears  by  the 
record,^®  nor,  if  the  exceptions  taken  by  defendant  at  the  trial  are  not  in  the  record, 
that  a  new  trial  was  not  properly  ordered  as  against  the  weight  of  the  evidence.^'' 
If  an  order  for  a  new  trial  is  general  in  its  terms,  it  will  be  presumed  that  evidence 
was  held  insufficient  by  the  court  below  in  that  it  was  against  the  findings  of  the 
jury,"  but  it  cannot  be  assumed  that  it  was  based  on  any  particular  ground,  and  the 
CQurt  will  look  into  the  correctness  of  the  rulings  on  the  admission  or  rejection  of 
evidence  and  the  giving  of  instructions,^^  Where  it  does  not  appear  from  the  order 
what  was  the  ground  upon  which  a  new  trial  was  granted,  but  the  record  shows  that 
it  might  have  been  made  because  of  insufficiency  of  the  evidence,^^  or  that  evidence 


4.  Under  Code  W.  Va.  c.  138,  §  5 — Garber 
V.  Blatchley,  51  W.  Va.  147. 

5.  Lashaway  v.  Young,  76  App.  Div.  (N. 
Y.)    177. 

6.  Veatch  v.  Norman,   95  Mo.  App.   500. 

7.  Rodgers  v.  Farmers'  Nat.  Bank  (Iowa) 
91  N.  W.   773. 

8.  Ben  Lomond  "Wine  Co.  v,  Sladky  (Cal.) 
71  Pac.  178. 

9.  Dundon  v,  McDonald,  137  Cal,  1,  69 
Pac.   498. 

10.  Ben  Lomond  Wine  Co.  v.  Sladky  (Cal.) 
71  Pac.   178. 

11.  Reno  M.  &  L.  Co.  v.  Westerfield  (Nev.) 
69  Pac.  899. 

12.  Bryan  v,  Bryan,  137  Cal.  xix.,  70  Pac. 
304. 

13.  Miller  v.  Casco  ("Wis.)  93  N.  "W.  447. 

14.  Fulton  Grocery  Co.  v.  Maddox,  114 
Ga.   913. 

15.  German  Nat.  Bank  v.  Atherton  (Neb.) 
90  N.  V^'.  550;  Peng-illy  v.  Case  Threshing 
Mach.  Co.   (N.  D.)   91  N.  W.  63. 


16.  Presumption  invoked  to  reconcile  ap- 
parently conflicting  statements  in  bill  of  ex- 
ceptions as  to  hearing  of  motion  and  settle- 
ment of  bill — Pendo  v.  Beakey,  15  S.  D.  344. 
Under  Code  Neb.  §  602 — Grand  Lodge  v. 
Scott  (Neb.)   93  N.  W.  190. 

17.  Insurance  Co.  v.  Evans,  64  Kan.  770, 
68   Pac.    623. 

18.  Pound's  Estate  v.  Casslty,  91  Mo.  App. 
424.  However  see — Schallehn  v.  Hibbard, 
64  Kan.   601,  68  Pac.   61. 

19.  Head  v.  Ayer  &  L.  Tie  Co.,  24  Ky.  Law 
Rep.    728. 

20.  Serwer  v.  Serwer,  71  App.  Div.  (N.  Y.) 
415. 

21.  Harrington  v.  Butte  &  B.  Min.  Co., 
27  Mont.  1,  69  Pac.   102. 

22.  Under  Rev.  St.  §  901.  requiring  the  or- 
der for  a  new  trial  to  specify  the  ground 
on  which  it  was  based — Roe  v.  Bank  of 
Versailles,   167  Mo.   406. 

23.  Harloe  v.  Berwick,  138  Cal.  xix.,  70 
Pac.    1060. 


DISCRETIONARY  RULINGS.  I75 

was  improperly  admitted,  it  will  be  presumed  that  the  court  exercised  discretion 
in  granting  a  new  trial  on  that  ground.-*  Where  a  motion  for  a  new  trial  regularly 
made  is  overruled  after  the  term  and  at  a  time  when,  under  the  law,  a  term  of 
court  might  be  in  session  in  another  county  in  the  district,  and  no  objections  are 
made  that  it  was  considered  in  vacation,  it  will  be  presumed  that  it  was  overruled 
at  an  adjourned  day  of  the  regular  term.-^  Where  a  new  trial  may  have  been 
granted  either  for  insufficiency  of  evidence  or  error  of  law  at  the  trial,  it  will  be 
presumed  that  the  order  was  made  on  the  latter  ground.^®  Where  no  reason  is  as- 
signed tlicrefor,  it  will  be  presumed  that  a  new  trial  was  granted  because  of  the 
court's  disapproval  of  the  verdict  either  as  against  the  weight  of  the  evidence  or  be- 
cause inconsistent,  if  special,  especially  where  costs  are  imposed  as  a  condition  of 
the  grant.-^  It  will  be  presumed  that  denial  of  a  motion  for  retrial  was  made  in 
the  court's  discretion  and  not  because  of  lack  of  power  to  allow  it.^*  If  a  statement 
certified  by  the  judge  does  not  purport  to  contain  all  the  evidence  but  is  stipulated 
to  be  correct,  it  will  be  presumed  that  only  sufficient  evidence  has  been  included  to 
explain  the  ground  specified  in  the  notice  of  the  motion  for  a  new  trial  for  insuffi- 
ciency of  evidence. ^'^  A  final  decree  will  not  be  reversed  because  of  error  in  denying 
application  for  a  rehearing.^^ 

It  will  be  presumed  that  the  time  for  filing  was  extended  by  the  court  for  good 
cause  or  by  consent  of  the  other  party,  where  the  bill  is  not  filed  until  after  expiration 
of  the  statutory  period,  though  no  recital  appears  in  the  record  as  to  such  exten- 
sion.^^ Wliere  a  motion  to  dismiss  an  appeal  is  made  because  an  order  extending  the 
time  for  a  bond  and  bill  of  exceptions  was  made  ex  parte,  it  will  be  presumed  that 
notice  of  the  order  was  given,  where  there  is  no  recital  in  the  record.^^ 

Matters  relating  to  judgments  or  costs. — Allowance  of  a  motion  to  set  aside  a 
default^^  entered  for  want  of  an  affidavit  of  defense  where  the  ground  alleged  was 
technical  and  defendant  delayed  for  four  months  after  entry  and  issuance  of  execu- 
tion before  seeking  to  have  the  judgment  set  aside,^*  or  for  failure  to  file  an  amend- 
ed complaint  within  the  time  granted,^^  or  where  the  court  directs  a  trial  anew  on 
the  merits,^^  is  discretionary  though  excusable  neglect  as  ground  for  setting  aside 
was  clearly  shown.^^  So,  also,  rulings  on  an  application  to  set  aside^*  or  amend 
a  judgment,^^  to  admit  evidence  on  a  technical  issue,*"  or  to  open  a  judgment  of  non- 
suit, though  it  appears  severe,*^  are  sustained  as  being  discretionary.  A  findin<y  of 
fact  on  a  motion  by  defendant  to  open  a  judgment  taken  on  excusable  default  will 
not  be  reviewed  unless  abuse  of  discretion  is  shown.*^  The  overruling  of  a  motion 
during  term  to  vacate  for  an  unauthorized  appearance  by  an  attorney  will  not  be  dis- 
turbed except  on  the  strongest  evidence  where  it  appears  that  there  was  a  general 


24.  Rembt  V.  Roehr  Pub.  Co.,  71  App.  Div. 
(N.  Y.)    459. 

2.5.  State  Ins.  Co.  v.  School  Dist.  (Kan.)  71 
Pac.   272. 

26.  Berg  V.  Olson  (Minn.)   93  N.  W.  309. 

27.  Giese  v.  Milwaukee  Elec.  R.  &  L.  Co. 
(Wis.)    92  N.  W.  356. 

28.  Kelly  v.  New  Haven  Steamboat  Co. 
(Conn.)    52    Atl.    261. 

29.  Code  Civ.  Proc.  Cal.  §  659,  subd.  3.  pro- 
viding for  the  sufficiency  of  notice  of  a 
motion  for  a  new  trial — Cahill  v.  Baird 
(Cal.)    70  Pac.   1061. 

30.  United  States  v.  Rio  Grande  D.  &  I. 
Co.,  184  U.  S.  416. 

31.  Coler  v.  Sterling,  15  S.  D.  415. 

32.  McKenzie  v.  Murphy,  29  Colo.  485,  68 
Pac.    838. 

33.  Watts  V.  Bruce  (Tex.  Civ.  App.)  72  S. 
W.   258;  Woodard  v.  Norris   (Iowa)    91  N.  W. 


1064;  Wheeler  v.  Castor  (N.  D.)  92  N.  W. 
381;  Fargo  v.  Keeney  (N.  D.)  92  N.  W.  836; 
Sibley  v.  Weinberg  (Wis.)   92  N.  W.  427. 

34.  Whitecar  v.  Supreme  Castle,  18  Pa 
Super.  Ct.   631. 

35.  Davis  V.  Huber  Mfg.  Co.,  (Iowa)  93 
N.  W.   78. 

36.  Wheeler  v.  Castor  (N.  D.)  92  N.  W 
381. 

37.  Under  Code  1902,  §  274,  making  such 
acts  discretionary — Morris  v.  Liverpool,  L 
&  G.  Ins.  Co.,   131  N.  C.  212. 

38.  Whitecar  v.  Supreme  Castle,  18  Pa. 
Super.  Ct.  631;  Brunswick-Balke-CoUender 
Co.  V.  O'Donnell,  101  111.  App.  533. 

Becher  v.  Deuser,  169  Mo.  169. 
Enyart  v.  Moran  (Neb.)   89  N.  W.  1045. 
Sibley   v.    Weinberg    (Wis.)    92    N.    W. 


39. 
40. 
41. 

427. 
42. 


McMahon  v.  Pugh,  62  S.  C.  506. 


176 


APPZAL  AND  REVIEW. 


appearance  in  the  case  at  former  terms  by  the  attomeT.*'  An  order  vacating  a 
judgment  in  absence  of  contrary  showing  will  be  presumed  to  taTe  brfn  made  witidn 
time.**  The  aUowance  of  costs**  accming  in  the  case  before  a  prior  appeal,**  or  the 
discretion  of  the  court  in  fiTing  compensation  of  receivers  and  their  counsel,*'  will 
not  be  reviewed  if  no  abuse  is  shown-  On  the  hearing  of  exceptions  sent  to  a  review 
court,  questions  of  co^s  which  should  have  been  d^ermined  before  taxation  will  not 
be  passed  upon.** 

2.  Questions  of  fact. — ^In  a  forthcoming  number  will  be  discussed  the  rules  for 
distinguishing  matters  of  law  from  th<»e  of  fact.  Applications  of  the  rules  will  be 
found  in  nearly  all  the  titles  treating  of  substantive  law.**  Generally  speaking, 
questions  of  fact  will  not  be  reviewed  on  appeaL**  A  verdict  directed  for  plaintiff 
subject  to  the  court's  decision  on  all  the  issues  is  however  not  conclusive  on  an  issue 
of  fact  thou^  the  evidence  in  r^^rd  tiiereto  is  conflirting."  A  judgment  will  not 
be  disturbed  unl^  so  unjust  as  to  indicate  prejudice,  partiality,  or  corruption," 
whether  on  findings  of  the  court  or  jury,"  if  the  record  shows  jurisdiction  of  the 
subje<*-inatter.**  In  the  federal  courts,  an  appeal,  unlike  a  writ  of  error,  opens  the 
facts  as  well  as  the  questions  of  law  to  inquiry.^  An  erroneous  a^umption  or  find- 
ing of  preliminary  fact  essential  to  the  jurisdiction  is  reviewable  by  writ  of  error.** 
A  trial  in  equity  is  before  the  court  thou^  i^ues  of  fact  have  been  referred  to  a 
master,  and  special  findings  by  reason  of  the  court's  action  upon  the  master's  re- 
port made  wi^out  requ^t  from  either  party  amount  to  a  general  finding  only  and 
cannot  be  reviewed  as  a  special  finding.*'    A  special  finding  stating  iiltim^re  facts 


43.  CMUiowle  Lomber  Co.  ▼.  Lanee.  5*  W. 
Ta.  C3«. 

-#4.  UE^er  Rev.  St.  Idaho-.  S  4223 — Kerns 
T.  IfcAolay  (Idabo)  S9  Pac  53S. 

■6.  Bo^rrins  v.  Wabash  R.  Co.,  90  Mo. 
AppL  324.  Granting:  costs  against  an  execu- 
tor personaUy — Webb  ▼.  Peck  QGch.)  92  N. 
W.  104. 

4C  United  SiecsritT  Life  Ins.  Co.  t.  "Lbt- 
ner.  18  Appu  D.  C  147. 

47.  Braman  ▼.  Fanners'  I*  &  T.  Co.,  114 
Fed.  18.  51  C  CL  A.  €44. 

4S.  Motion  for  extra  allo-wajQce — River- 
side Bank  ▼.  Jones.  75  App.  Div.  (X.  T.)  531. 

49l  See  Questions  of  Law^  and  Fact,  also 
Ne^igence  and  like  titles. 

S(L  Whether  miscondact  ^ras  provoked  is 
fact — Shissier  v.  Shoster  (Xeb.)  92  N.  W. 
XC3.  Whether  Cather  acting  as  guardian 
iras  entitled  to  be  paid  tar  child's  support  is 
a  qu^>tion  of  fact — McGeary  ▼.  McGeary.  181 
Mass.  539.  The  amount  of  dazoages  la  a. 
pure  question  of  fact  in  Utah — Braegger  ▼. 
Or^?on  S.  I^  B.  Col,  24  Utah.  391,  C8  Pac  141. 
Decision  that  a  commodity  is  or  is  not  a. 
substance  or  article  specified  in  customs 
laws — United  States  ▼.  Jackson.  113  Fed. 
1900:  Page  v.  Unite!  States.  113  Fed.  lOOC; 
Gabriel  v.  United  States.  114  Fed.  401:  "Weal 
V.  United  States.  115  Fed.  592.  Whether  a 
statement  by  counsel  in  his  argument,  as 
to  vrhat  a  ^ritness  w^ould  have  said  if  called. 
Is  one  of  fact  or  a  request  for  an  Inference 
is  a  question  for  the  trial  court — ^Walker  ▼. 
Boston  *  M.  R.  Co,  71  N.  H.  tTL.  Whether 
focts  aU^^ed  amount  to  an  esccuse  for  negli- 
gence may  be  reviewed  as  a  conclusion  of 
law — Morris  v.  Liverpool.  I<.  &  6.  Ins.  Col. 
131  N.  a  212. 

Snm^ate's  assumption  of  a  material  fact 
will  not  be  supported  by  presumption  ^rhen 
the  record  contains  no  evidence  either  way. 


even  though  counsel  did  not  disr      -  — 

In  re  Raymond,  73  App.  Div.   (X.  T 

St.  Fraser  v.  Aetna  Life  Ins.  Co..  l.^  t.  .5 
510. 

SS.  dncinnatL  H:  &  L  R.  Co.  v.  vr-r-.'z- 
ington  (Ind.  App.)   6S  N.  EL  557;  G:  -: 

Sullivan    (Ind.    App.)    66   N.    E.    IS-  :? 

measure  of  damages  is  uncert-;-      -      - 
will  be  disturbed  only  when  s 
indicate    passion — Welch    v.    G :  t  r    r       ?. 
54  AtL   54.      Material   injury   -     = :       r    —     :  ? 
apparent — Wills  v.  Hardcastle    1      7  ?.     5    t  r  - 
Ci.    525.      Trial    court's    actio-      -     --2 
damages   does   not  alone   sho- 
prejndice — Doran  v.   Cedar  E 
R.  Col  Clowa)  90  X.  W.  815:  Kn    -  '■■.  Z-s 

Moines  E.  I*  Co.  (Iowa)  90  X.  *:^  =  Mis- 
conduct of  counsel  ground  f:r  ri-ersal — 
^•aiding  v.  Grundy.  23  Ky.  Law  Rep.  1759 
It  wlU  be  presumed  that  the  j— rr  *^~r=  fre« 
frtnn  passion  or  improper  ir^"—  -^  =  5 
there  is  proof  to  the  contrary —  r 
Bank  v.  Grosshans  (Xeb.)  SO  X.   TT. 

SX  FuUerton  v.  Carpenter  <Mo.  App.)  71 
SL  "W.  98:  South  Omaha  v.  Meyers  (Xeb.)  S2 
3ff.  Vr.  743;  State  v.  HiB  (W.  Va.)  43  a  E. 
1S9:  Palmquist  v.  Mine  ft  Snselter  S-:ippIy  Co. 
(Utah)  70  Pac  994;  Lake  Streei  EL  R.  Co. 
V.  Shaw.  103  m.  App.  662. 

Si.  Jaco  V.  Southern  Missouri  ft  A  B. 
Co..  94  Mo.  App.  567. 

55.  U&iied  States  v.  Diamond  Match  Co. 
(G  C  A.)  115  Fed-  288. 

SOL  This  though  a  writ  of  error  lies  gen- 
erally only  for  errors  of  la'w  apparent  in  the 
record,  and  it  applies  ^rhere  there  is  a  &U- 
ure  to  proceed  properly  to  bring  a  party 
into  court  and  make  him  a  party  to  the  rec- 
ord— Chilhowie  Lumber  Co.  v.  Lance.  50  W^. 
Va    636. 

57.  Under  Bums'  Rev.  St.  Ind.  19«1.  B 
24?.  412,  providing  for  abolition  of  distinc- 
tion   betw^een    actions   at   law   and    suits    in 


FINDINGS  OF  FACT. 


177 


will  not  be  disturbed  though  it  contains  also  statements  of  evidence  and  inferences 
therefrom.'*^  That  no  propositions  of  law  were  presented  to  the  trial  court  will  not 
prevent  consideration  of  the  evidence  as  sufficient  to  support  the  judgment,  though 
the  appeal  court  may  assume  that  all  questions  of  law  were  determined  correctly.^' 
Controverted  facts  and  inferences  -will  not  be  reviewed  where  both  parties  below 
move  for  direction  of  verdict.*'"  Where  there  has  been  a  view  by  the  jury  their  find- 
ing is  conclusive.^^  If  the  jury  has  drawn  wrong  conclusions  from  the  facts,  their 
verdict  can  be  set  aside.*'^  If  the  trial  court,  after  finding  all  the  issues  for  plaintiff, 
erroneously  dismissed  the  bill  and  granted  a  new  trial  to  correct  errors  in  its  own 
rulings,  the  evidence  will  not  be  considered  on  appeal  to  determine  the  necessity  of 
reversal. "^^  A  judgment  on  a  directed  verdict  cannot  be  sustained  because  of  a"  de- 
fense neither  established  nor  considered  by  the  court  below. ^*  A  finding  of  fact  by 
the  court  on  an  issue  not  submitted  nor  requested  will  be  reviewed  to  determine  the 
sufficiency  of  evidence  supporting  it.^^ 

Findings  of  fact  in  general.^^ — A  verdict  or  findings  of  fact  will  only  be  set 
aside  when  not  supported  by  evidence,''^  if  properly  submitted,^^  since  the  appeal 
court  cannot  pass  on  the  credibility  of  witnesses  or  the  peculiar  weight  to  be  given 
their  testimony  ;^^  there  being  sufficient  to  carry  the  issues  to  the  jury,^°  and  no 


equity  and  for  the  manner  of  trial  of  issues 
of  law  and  fact  formerly  of  exclusive  equi- 
table cog-nizance — Terra  Haute  &  I.  R.  Co. 
V.  State  (Ind.)   65  N.  E.  401. 

58.  American  Nat.  Bank  v.  Watkins  (C. 
C.   A.)    119   Fed.    545. 

i'9.     Mullin   V.   Johnson.    98   111.   App.    621. 

60.  German  American  Bank  v.  Schwinger, 
75  App.  Div.    (N.  Y.)    393. 

61.  Finding  as  to  defects  In  machinery — 
Choctaw,  O.  &  G.  R.  Co.  v.  Holloway,  114 
Fed.  458,  52  C.  C.  A.  260. 

62.  Jeffrey  v.  United  Order  of  Golden 
Cross,   97  Me.   176. 

63.  Action  by  judgment  creditor  to  set 
aside  fraudulent  conveyance  by  debtor — St. 
Francis  Mill  Co.  v.  Sugg,   169   Mo.   130. 

64.  Defense  of  contributory  negligence 
ill  action  for  personal  injuries — Kaiser  v. 
Detroit  &  N.  W.  R.   (Mich.)   91  N.  W.  752. 

Go.  Under  Sales'  Civ.  St.  Tex.  art.  1331 — 
Hardin  v.  Jones  (Tex.  Civ.  App.)  68  S.  W. 
S36. 

66.  Decisions  of  fact  by  state  board  of 
taxation  not  reviewable — Newark  v.  North 
Jersey  St.  R.  Co.  (N.  J.  Law)  53  Atl.  219. 
Divorce  facts  are  reviewable  only  when  all 
the  evidence  is  sent  up — Rhodes  v.  Rhodes, 
95  Mo.  App.  327. 

67.  Montz  v.  Roberts,  103  111.  App.  270; 
English  V.  English.  19  Pa.  Super.  Ct.  586; 
Dillon  V.  Watson  (Neb.)  92  N.  W.  156;  Upton 
V.  Windham  (Conn.)  53  Atl.  660;  McDonald 
V.  Stitt  (Iowa)  91  N.  W.  1031;  Lake  St.  El. 
R.  Co.  V.  Shaw.  103  111.  App.  662;  Taylor  v. 
Hall  (Idaho)  71  Pac.  116;  Lindell  v.  Deere- 
Wells  Co.  (Neb.)  92  N.  W.  164;  Seyfer  v.  Otoe 
County  (Neb.)  92  N.  W.  756;  Garr  v.  Cranney 
(Utah)  70  Pac.  853;  State  v.  Mansfield  (Mo. 
App.)  72  S.  W.  471;  Stiewel  v.  Am.  Surety  Co., 
70  Ark.  512;  Farmers'  Mut.  Fire  Ins.  Co.  v. 
Stewart  (Colo.  App.)  68  Pac.  1057;  Stout  v. 
Stout,  28  Ind.  App.  502;  Logansport  &  W. 
Val.  Gas  Co.  v.  Coate,  29  Ind.  App.  299;  D. 
M.  Osborne  &  Co.  v.  Case  (Okl.)  69  Pac.  263; 
Bryce  v.  Cayce,  62  S.  C.  546;  Jensen  v.  N.  P. 
R.  Co.  (Idaho)  70  Pac.  790;  City  of  Omaha 
V.  Doty  (Neb.)  89  N.  W.  992;  Petrie  v.  New 
York   Cent.    &   H.    R.    R.    Co.,    171    N.    Y.    638; 

Cur.  Law — 12. 


Long  v.  McWilliams  (Okl.)  69  Pac.  882.  The 
preponderance  must  be  clearly  against  the 
decree — Van  Vleet  v.  DeWitt,  200  111  153 
Verdict  in  will  contest— Crossan  v.  Crossan! 
169  Mo.  631.  The  testimony  must  fairly 
show  the  verdict  to  be  excessive — Village 
of  Plainview  v.  Mendelson  (Neb.)  90  N.  W. 
956.  Findings  of  viewers  in  eminent  domain 
— Lanquist  v.  Chicago,  200  111.  69;  Texas  & 
P.  R.  Co.  v.  Wilson,  108  La.  1;  Manhattan  R. 
Co.  V.  Comstock  (N.  Y.)  74  App.  Div.  341. 
Error  in  assessing  damages  in  eminent  do- 
main must  be  palpable — In  re  Brookfield 
(N.  Y.)  78  App.  Div.  520.  Finding  as  to  the 
settlement  of  a  cause  of  action — Stanley  v 
Stanley,  27  Wash.  570.  68  Pac.  187.  Findings 
of  fact  are  binding  on  appeal  from  order  for 
temporary  alimony — Moore  v.  Moore,  130  N. 
C.  333.  Verdict,  of  jury  as  to  the  duty  of 
a  railroad  corrpany  to  fence  its  tracks  in 
an  action  for  damages  for  the  killing  of  do- 
mestic animals — Downey  v.  Miss.  River  & 
B.  T.  R.  Co..  94  Mo.  App.  137.  Finding  as 
to  whether  a  warranty  of  good  health  fur- 
nished by  one  asking  for  reinstatement  in 
a  benefit  association  was  forged — Creighton 
V.  Modern  Woodmen  of  America.  90  Mo.  App. 
378.  Findings  of  the  trial  court  as  to  neg- 
ligence on  specific  facts  may  be  reviewed 
where  the  inferences  of  facts  are  unreason- 
able or  one  or  more  of  the  facts  inconsist- 
ent with  the  conclusions — Hyde  v.  Mendel 
(Conn.)    52  Atl.   744. 

68.  Truworthy  v.  French,  97  Me.  143; 
Gunther  Bros.  &  Co.  v.  Aylor.  92  Mo.  App. 
161.  Submission  without  instructions  is  not 
necessarily  error — Costley  v.  Seward,  93  Mo. 
App.    108. 

69.  Richey  v.  Haley,  138  Cal.  441,  71  Pac. 
499;  Silveira  v.  Reese,  13S  Cal.  xix.,  71  Pac. 
515;  Peck  v.  Gelski  (Iowa)  93  N.  W.  581; 
Mountain   City  Mill   Co.   v.   Link  Milling  Co., 

92  Mo.    App.    474;    Corrigan    v.    Kansas    City, 

93  Mo.  App.  173;  Haslack  v.  Wolf  (Neb.)  93 
N.  W.  996;  Bedwell  v.  Bedwell  (Tex.  Civ. 
App.)  71  S.  W.  983;  Ricaud  v.  Alderman  & 
Planner  (N.  C.)  43  S.  E.  543;  Romero  v. 
Coleman  (N.  M.)  70  Pac.  559.  The  lack  of 
opportunity     on     the    part     of    the    supremo 


178 


APPEAL  AND  REVIEW. 


prejudicial  error  of  law  being  sho-mi.'^  The  presence  of  substantial  evidence  in  sup- 
port is  sufBcient,'^  though  a  different  conclusion  might  have  been  reached,''  unless 
injustice  has  been  done  without  regard  to  the  weight  of  evidence/*  and  the  rule 
applies  to  an  action  presenting  no  equitable  issues  though  tried  b)'  the  court  as  an 
equity  action.'^^  A  finding  dependent  on  man)'  facts  must  be  supported  by  the  de- 
tailed facts.'®  A  finding  of  the  trial  court  on  conflicting  evidence  will  not  be  dis- 
turbed,'^ unless  clearly  unsupported  by  the  evidenceJ^  Inferences  drawn  by  tlie 
court  from  facts  will  not  be  reviewed,'®  if  they  have  reasonable  foundation  in  the 
facts.^"     A  verdict  for  damages  for  personal  injuries  will  not  be  set  aside  as  ex- 


court  to  see  the  plaintiff  in  an  action  for 
personal  injuries  sustained  from  his  mas- 
ter's machinery,  on  the  stand,  will  not  pre- 
vent a  holding  under  the  evidence  that  he 
was  not  so  stupid  as  to  preclude  an  instruc- 
tion below  that  he  had  assumed  the  risk — 
Chmiel  v.  Thorndike  Co..  1S2  Mass.  112.  Un- 
less unworthy  witnesses  have  been  believed 
— Goothye  v.  DeLatour.  108  La.  286. 

70.  Vermillion  v.  Parsons  (Mo.  App.)  71 
S.    W.    1092. 

71.  Inhabitants  of  Atkinson  v.  Orneville, 
96  Me.  311.  Finding  on  contributory  negli- 
gence where  submitted  under  proper  in- 
structions cannot  be  reviewed  on  writ  of 
error — Kansas  City  S.  R.  Co.  v.  Billingslea 
(C.   C.   A.)    116    Fed.    335. 

72.  Waters  v.  White  (Conn.)  52  Atl.  401; 
Roskilly  v.  Steigers  (Mo.  App.)  70  S.  W. 
909;  Fidelity  Mut.  Fire  Ins.  Co.  v.  Lowe 
(Neb.)  93  N.  W.  749;  Taussig  v.  Wind  (Mo. 
App.)  71  S.  W.  1095;  Van  TVagoner  v.  Pat- 
erson,  67  N.  J.  Law.  455;  West  Chicago  St. 
R.  Co.  v.  Lieserowitz.  197  111.  607;  Clark  v. 
Shannon  &  Mott  Co.  (Iowa)  91  N.  W.  923; 
Wilbur  V.  Berry,  71  N.  H.  619;  Bradshaw  v. 
Cochran,  91  Mo.  App.  294:  Bowles  Live  Stock 
Commission  Co.  v.  Hunter,  Id.  436;  Fuller- 
ton  V.  Carpenter  (Mo.  App.)  71  S.  W.  98; 
Citv  of  South  Omaha  v.  Meyers  (Neb.)  92  N. 
W.  743;  State  v.  Hill.  52  W.  Va.  296;  Palm- 
quist  V.  Mine  &  Smelter  Supply  Co.  (Utah) 
70  Pac.  994;  Lake  St.  El.  R.  Co.  v.  Shaw,  103 
111.  App.  662.  Finding  upon  verbal  evidence 
— Wallrath  v.  Bohnenkamp  (Mo.  App.)  70 
S.  W.  1112.  The  testimony  can  only  be  ex- 
amined to  ascertain  whether  there  was  any 
competent  evidence  tending  to  support  the 
findings — Salem  Light  &  Traction  Co.  v. 
Anson.  41  Or.  562.  69  Pac.  675.  A  mere  pos- 
sible inference  from  the  evidence,  contrary 
to  the  judgment  rendered,  will  not  warrant 
Its  reversal — Sanitary  Dist.  of  Chicago  v. 
Ray,  199  111.  63.  Finding  that  one's  name 
appeared  on  the  back  of  notes  sued  on, 
signed  as  maker,  not  as  indorser,  will  not  be 
disturbed — Olansky  v.  Berlin  (N.  Y.)  37 
Misc.  775.  Questions  of  fact  put  in  issue 
by  the  pleadings  and  submitted  under  a 
proper  charge  as  to  which  no  exceptions  are 
taken — Libertv  Wall  Paper  Co.  v.  Stoner 
Wall  Paper  Mfg.  Co.,  170  N.  Y.  5S2.  Evidence 
of  mental  capacity  to  understand  the  nature 
of  a  conveyance  on  which  reasonable  minds 
might  differ  will  be  held  to  sustain  a  find- 
ing'of  incompetencj' — Smith  v.  Smith  (Neb.) 
89  N.  "W.  799.  The  order  below  refusing  to 
set  aside  the  verdict  on  special  finding  will 
not  be  disturbed  except  in  the  absence  of 
•vidence  in  support,  or  c^erwhelming  weight 
6t  evidence  against  it — Bannon  v.  Ins.  Co. 
of  N    A.   (Wis.)   91  N.  W.   666.     Though  after 


overruling  a  demurrer  to  plaint;  :=  evidence, 
in  which  he  joined,  the  case  is  submitted 
to  the  jury  on  the  evidence  as  it  stands  and 
the  verdict  is  for  plaintiff — Coleman  v.  Ben- 
nett (Tenn.)  69  S.  V\^.  734.  VS^here  the  evi- 
dence of  either  side  as  given  in  the  record 
would  alone  suffice  to  sustain  a  verdict 
for  its  party  a  verdict  for  either  will  not 
be  disturbed  if  no  prejudicial  rulings  appear 
— Walker  v.  Montgomery.  104  111.  App.  659. 
A  verdict  in  favor  of  plaintiff  suing  for  in- 
juries caused  by  aegligence  will  not  be  set 
aside  where,  as  a  matter  of  law.  the  evi- 
dence does  not  show  conclusively  that  she 
was  guilty  of  contributory  negligence — 
Coonan  v.  American  House  Furnishing  Co.. 
S6  Minn.  12.  If  there  is  evidence  to  sustain 
the  general  verdict  and  the  material  find- 
ings on  interrogatories  submitted,  the  judg- 
ment will  not  be  disturbed,  though  the  evi- 
dence as  to  some  features  of  the  case  can- 
not be  said  to  be  of  great  weight — Creamery 
Package  Mfg.  Co.  v.  Hotsenpiller  (Ind.)  64 
N.    E.    600. 

73.  National  Exch.  Bank  v.  Wiley  (Neb.) 
92  N.  W.  582;  Demary  v.  Burtenshaw's  Es- 
tate   (Mich.)    91   N.  W.   647. 

74.  Aetna  Ins,  Co.  v.  Eastman  (Tex.  CiA^ 
App.)    72   S.   W.    431. 

75.  Phipps  V.  Norton  (Iowa)   93  N.  W.  562. 

76.  Chester  v.  Buffalo  Car  Mfg.  Co.  (N. 
Y.)    70   App.   Div.    443. 

77.  Roj^al  Remedy  &  Extract  Co.  v.  Greg- 
ory Grocer  Co..  90  Mo.  App.  53;  Morrison  v. 
Sohon,  Id.  76;  Greditzer  v.  Continental  Ins. 
Co.,  91  Mo.  App.  534.  On  testimony  of  two 
witnesses  contradicting  each  other — Jordan 
v.  Coulter,  30  V^'ash.  116,  70  Pac.  257.  In 
action  at  la-n^  in  federal  court  tried  by  stip- 
ulation without  a  jury — ^American  Sales  Book 
Co.  V.   Bullivant    (C.   C.  A.)    117   Fed.   255. 

78.  Payne  v.  Liebee  (Neb.)  91  N.  W.  851; 
Morris  v.  Liverpool.  L.  &  G.  Ins.  Co.,  131 
N.  C.  212;  Annie  Laurie  Min.  Co.  v.  Ross 
Min.  &  Mill.  Co.    (Utah)    70  Pac.   465. 

79.  Stocker  v.  Coddington  (Minn.)  93  N. 
W.  680.  If  the  court  below  is  given  power 
to  draw  inferences  in  a  case  submitted  on 
an  agreed  statement  of  facts,  the  appellate 
court  ■R'ill  review^  the  findings  only  to  de- 
cide whether  the  facts  warrant  the  conclu- 
sions drawn,  but  if  no  inference  can  be 
drawn  by  the  trial  court,  it  can  add  to  the 
statement  of  facts  only  the  conclusions  im- 
plied by  the  law  and  the  appellate  court 
can  review  them  no  further — Norton  v. 
Brookline.   181   Mass.   360. 

SO.  Northdruft  v.  Lincoln  (Neb.)  92  N.  W. 
628. 


FINDINGS  OF  FACT. 


179 


cessive  imless  the  amoimt  is  such  as  to  show  passion  or  prejudice  of  the  Jtiry.*^  All 
fair  and  reasonable  inferences  will  be  made  as  to  the  facts  to  sustain  a  verdict/^ 
and  to  uphold  the  judgment  as  to  matters  in  which  the  record  is  silent/^  and  the 
rule  applies  to  findings  by  the  court.^*  It  will  be  presumed,  in  support  of  a  general 
verdict,  that  all  issues  of  fact  necessary  for  its  support  were  found  by  the  jury  in 
favor  of  the  party  for  whom  it  was  rendered,®'^  and  in  the  absence  of  a  particular 


SI.  McLean  v.  Lewiston  (Idaho)  69  Pac. 
478. 

82.  Sappingrton  v.  Chicago  &  A.  R.  Co., 
f>5  Mo.  App.  3S7;  Arnold  v.  Cason,  Id.  426; 
Sheehan  v.  Osborn,  138  Cal.  512.  71  Pac.  622. 
Presumption  in  favor  of  findings — In  re 
Young's  Estate    (Pa.)    53   Atl.   511. 

If   the    bill    of   exceptions    or   certificate    of 
evidence    does    not    purport    to    contain    the 
substance    of    all    evidence    produced,    suffi- 
ciency   thereof   to    support    the    findings    will 
be  presumed — Fields  v.  Daisy  Gold  Min.  Co.. 
25  Utah,   76.   69  Pac.   528;   Allen  v.   Henn,   197 
111.  486.     Unless  a  contrary  statement  is  made 
in  the  bill  of  exceptions — Metzger  v.  Morley 
(111.)    64    N.    E.    280;    Metzger   v.    Wooldridge, 
99  111.  App.   283.     Where  plaintiff's  case  fails 
entirely,    the    verdict    of   the   jury    as    to    the 
value  of  defendant's  rights  will  be  presumed 
to  be   correct   on   failure   in   replevin   of  evi- 
dence   to    show    interest    of    plaintiff    in    the 
property — Kingman  Im'p.  Co.  v.  Strong  (Neb.) 
S9   N.   W.   993.      If  the  damages   in   an   action 
for    libel    are    not    excessive,    it    will    not    be 
presumed    that    the    jury   allowed    exemplary 
damages — Danville  Press  Co.  v.  Harrison,   99 
111.   App.    244.      If  rights   of  a  defendant   un- 
der  a    counter    claim    are    given    in    the   dec- 
laration   of   law    by   the    court,    they    will    be 
presumed  to  have  been  considered  in  render- 
ing  judgment — Williams    v.    Stroub,    168    Mo. 
346;     Long-Bell     Lumber     Co.     v.     Same,     Id. 
Where   a   husband   complained    of   the   action 
of    the    court    in    refusing    to    make    him    a 
party     defe/idant     in     partition     proceedings 
against    his    wife,    it    will    be    presumed,    in 
favor    of   the    ruling,    that    the    husband    and 
wife    had    separated,    where   his    petition    did 
not   state   that   they   lived   together,    a,nd    the 
evidence     was     not     in     the     record     (Burns' 
Rev.    Sts.    1894,    §   6974) — Littell   v.   Burns,    29 
Ind.    App.    572.      Where    both    parties    moved 
for    a    verdict    on    the    evidence    and    a    ver- 
dict   was    directed    for    defendant,    an    issue 
on   conflicting  evidence  will   be   presumed   to 
have   been    found    in    his    favor. — Raegner   v. 
Brockway,  171  N.  Y.  629.     In  a  proceeding  to 
foreclose    a    mortgage    on    community    prop- 
erty,  the  legal  title  to  which  is  in  the  hus- 
band   and    on    which    a    mortgage    has    been 
executed    by    the    husband    and    second    wife 
after   the   first   wife's   death,   it   will    be   pre- 
sumed  that   the   court   found   that   the   mort- 
gagee  had   notice   of   the   first   marriage,   the 
wife's    interest   and   that    children    were    left, 
where   the  mortgage   is   held   void   as   to   the 
children    of    the    first    marriage. — American 
Freehold  Land  Mortgage  Co.  v.  Dulock  (Tex. 
Civ.  App.)    67   S.  W.   172.   If  evidence  appears 
in    the    record    from    which    the    court    below 
would   have   been   justified   in   finding  a   cer- 
tain  conclusion   of  fact,   it  will  be  presumed 
in   favor   of  the   ruling   that   such   conclusion 
was    found— Town    of  Montgomery   v.    Balti- 
more &  O.  S.  W.  R.  Co.,  29  Ind.  App.   692.     It 
will    be   presumed   that   all    issues    submitted 
In    an    action    on    a   note    in   which    equitable 
relief    was    prayed    were    submitted    to    the 


jury  under  proper  instructions  and  by  con- 
sent, and  that  the  cross  complaint  was  sup- 
ported by  no  evidence — Horgwege  v.  Sage, 
137  Cal.  539,  70  Pac.  621.  If  books  used  by 
commissioners  appointed  by  the  county  court 
to  settle  with  the  sheriff  collecting  the 
county  levy  are  not  in  the  record,  nor  the 
parties  thereto  copied  into  the  transcript,  a 
presumption  will  be  indulged  that  the  books 
explained  apparent  duplications  of  credit 
and  were  sufficient  to  authorize  the  judg- 
ment— Bates  V.  Knott  County  Court,  24  Ky. 
Law  Rep.  73.  Where  the  conclusions  of  law 
below  imputed  an  agent's  malice  to  the 
principal  in  malicious  attachment  of  goods, 
which  were  exempt,  the  court  will  presume 
in  the  absence  of  contrary  facts  the  knowl- 
edge of  the  principal  and  acquiescence  by 
him  in  the  agent's  acts — Leonard  v.  Harkle- 
road    (Tex.  Civ.  App.)    67  S.  W.   127. 

83.  Peele  v.  Ohio  &  L  Oil  Co.,  158  Ind. 
374;  Roberts  v.  Central  Lead  Co.,  95  Mo.  App. 
5S1;  Schallehn  v.  Ilibbard,  64  Kan.  601,  68 
Pac.  61.  Presumed  that  money  spent  for  a 
bank  was  for  a  lawful  purpose — Laidlaw  v. 
Pacific  Bank  (Cal.)  67  Pac.  897.  Where  an 
instrument  incorrectly  designates  the  loca- 
tion of  land  in  a  certain  city  addition,  It 
will  be  presumed  in  the  absence  of  contrary 
showing  that  an  addition  exists  in  which 
such  land  is  found — Rinehardt  v.  Reifers, 
158  Ind.  675.  An  issue  not  submitted  nor  re- 
quested to  be  submitted  will  be  presumed 
on  appeal  to  have  been  found  by  the  court 
in  the  manner  supporting  the  judgment;  un- 
der Rev.  St.  1895,  art.  1331.  relating  to  spe- 
cial verdicts — Texarkana  &  Ft.  S.  R.  Co.  v. 
Spencer  (Tex.  Civ.  App.)   67  S.  W.  196. 

84.  A  finding  that  plaintiff  was  regularly 
appointed  to  office  will  raise  a  presumption 
that  his  appointment  was  authorized  under 
the  proper  statute  by  the  proper  officers; 
that  he  was  the  one  of  two  deputies  ap- 
pointed who  was  to  receive  the  higher  sal- 
ary under  the  statute,  if  the  appointment 
of  no  other  is  shown — Freeman  v.  Marshall, 
137  Cal.  159,  69  Pac.  986.  Facts  on  which 
contempt  orders  are  based  are  reviewed  only 
as  to  the  legal  sufficiency  to  support  the 
judgment — Green  v.  Green,  130  N.  C.  578. 

85.  Eklund  v.  Martin,  87  Minn.  441;  St. 
Paul  Trust  Co.  v.  Kittson  (Minn.)  92  N.  W. 
500.  If  sufficient  evidence  appears  to  sup- 
port the  finding — Malone  v.  Fisher  (Tex. 
Civ.  App.)  71  S.  W.  996.  If  the  evidence  on 
which  objections  to  a  trustee's  account  were 
sustained  does  not  appear,  all  presumptions 
will  be  in  favor  of  the  judgment — Gardner 
V.  Stare,  136  Cal.  xlx.,  69  Pac.  426.  If  no 
evidence  is  in  the  record  on  which  a  plea 
of  privilege  was  heard.  It  will  be  presumed 
that  the  evidence  sustained  the  judgment 
denying  the  plea — Robinson  v.  Chamberlain 
(Tex.  Civ.  App.)  68  S.  W.  209.  Agreement  as 
to  findings  presumed  to  dispense  with  proof 
of  separate  facts — Massillon  Engine  Co.  v. 
Arnold,  133  Ala.  368.  It  will  be  presumed 
that    plaintiff's    theory   as    to   disputed    ques- 


180 


APPEAL  AND  REVIEW. 


showing  as  to  ihe  findings  of  a  jury  on  an  issue  of  fact,  that  tliey  found  in  such  a 
manner  as  to  support  the  verdict  f^  but  where  the  facts  are  stipulated  it  cannot  be 
presumed  that  they  were  different  in  order  to  support  the  judgment."  The  findings 
will  be  presumed  to  have  been  supported  by  evidence  received  without  objection  in 
the  absence  of  contrary  showing,**  since  it  cannot  be  presumed  that  the  record 
contains  all  the  evidence  heard  on  the  trial  in  the  absence  of  a  showing  to  that  ef- 
fect ;**  but  the  transcript  duly  certified  will  be  presumed  to  contain  all  necessary  to 
be  considered  in  determining  the  correctness  of  the  rulings.^"  The  presumption  that 
sufficient  facts  appear  to  support  a  judgment  in  the  short  form  vrill  not  apply  to  that 
part  of  the  judgment  dismissing  the  complaint  as  to  one  defendant.®^  Where  no 
objection  was  taken  to  a  complaint  and  the  proceedings  are  not  in  the  record,  it  must 
be  presumed  that  every  allegation  of  the  complaint,  whether  defective  or  not,  was 
sustained  bv  evidence.^^  It  must  be  presumed  that  evidence  excluded  by  the  court 
below  could  have  been  produced  by  the  party  offering  it  if  permitted.^^  In  favor  of 
a  verdict  by  the  court  without  a  jury,  it  must  be  presumed  that  only  competent 
testimony  was  considered.^*  If  the  answer  of  a  witness  is  liable  to  two  construc- 
tions, one  of  which  is  admissible,  such  construction  will  be  given  it  on  appeal,®^  and 
it  must  be  presumed  that  the  answer  of  the  witness  was  responsive  to  the  question.'** 
Where  defendant  requested  an  instruction  submitting  an  issue  of  fact,  it  will  be 
presumed  that  the  evidence  tended  to  establish  the  conclusion  of  the  jury  in  op- 
position to  his  contention,  so  that  he  cannot  complain  of  the  finding  on  appeal.®' 
The  decision  of  a  court  or  commissioner  below  as  to  the  credibility  of  a  witness  can- 
not be  disturbed  unless  the  record  discloses  some  reason  for  not  giving  full  credit 
to  his  testimonv.®*  An  order  based  not  alone  on  the  affidavit  of  plaintifPs  attorney 
but  on  all  proceedings  in  the  action  which  were  not  brought  up  on  review,  which 
awards  full  statutory  costs  against  defendant,  wiU  not  be  disturbed.^®  It  will  be  pre- 
sumed in  support  of  a  judgment  in  replevin  on  a  verdict  which  fails  to  fix  the 


tions  of  fact  was  adopted  by  the  jury  find- 
ing: a  verdict  in  his  favor  on  appeal  from  a 
refusal  to  direct  a  verdict  for  defendant 
in  an  action  for  personal  injuries — Gaukler 
v.  Detroit.  G.  H.  &  M.  R.  Co.  (Mich.)  9  De- 
troit Leg-.  X.  215,  90  N.  W.  660.  If  a  certain 
fact  in  issue  is  not  found  by  the  trial  court 
it  vrill  be  presumed  that  evidence  did  not 
warrant  it — Rilling  v.  Schultze,  95  Tex.  352; 
Meislahn  v.  Irving-  Xat.  Bank,  172  X.  T.  631. 
"Where  the  record  does  not  show  w-hen  a  trial 
vras  had  belo"w  or  what  evidence  Tvas  pro- 
duced on  a  particular  issue,  it  will  be  pre- 
sumed that  sufficient  facts  -were  shown  the 
trial  court  to  support  the  judgment — Keyes 
V.  Moy  Jin  Mun,  136  Cal.  129.  68  Pac.  476. 

86.  Findings  as  to  misrepresentation  and 
deceit  regarding  the  value  of  corporate  stock 
conveyed — Guilford  v.  Mason,  24  R.  I.   386. 

87.  Conway  v.  Supreme  Council,  137  Cal. 
384,  70  Pac.  223. 

8S.  Beardsley  v.  Clem,  137  Cal.  328,  70 
Pac.  175;  Ball  v.  Marquis  flowa)  92  X.  V7. 
091.  If  only  part  of  evidence  is  in  the  ab- 
stract, judgment  will  be  presumed  to  have 
been  supported  by  omitted  evidence — Hart- 
man  V.  Reid  (Colo.  App.)  68  Pac.  787.  On 
appeal  from  an  allo'svance  of  a  wido'sv's 
claim  against  the  estate  for  erecting  a  mon- 
ument for  her  husband,  it  will  be  presumed 
that  the  court  had  proper  evidence  of  the 
value  or  solvency  of  the  estate  and  of  the 
suitableness  of  the  monument — Pease  v. 
Christman.  158  Ind.  642.  It  cannot  be  as- 
sumed that  a  judgment  was  rendered  with- 
out proof  of  the  allegatio.is  of  the  complaint 


on  appeal  from  an  order  opening  a  default 
reciting  that  the  motion  to  open  the  de- 
fault vras  brought  on  an  order  to  show-  cause 
reciting  that  it  was  made  on  annexed  affida- 
vits, pleadings  and  proceedings  in  the  ac- 
tion, though  the  affidavits  are  omitted  from 
the  record — Hopkins  v.  iMeyer  CX.  T.)  74 
App.  Div.  619.  Those  facts  which  the  ap- 
pellant had  the  burden  of  proving,  but 
which  are  not  given  in  the  findings,  will  be 
presumed  not  to  have  been  affirmatively 
proved — Peele  v.  Ohio  &  I.  Oil  Co.,  158  Ind. 
374,  If  the  evidence  does  not  appear  in 
a  bill  of  exceptions.  It  -will  be  presumed 
to  have  been  sufficient  to  sustain  a  judg- 
ment correcting  the  verdict  by  inserting 
property  omitted  by  mistake — La-w  v.  Sani- 
tary Dlst.   of  Chicago.   197   111.   523. 

89.  Watkins  v.  La  Mar  CKan.  App.")  69  Pac. 
730:   Metz  v.   Bell,   137   Cal.  xix.,   70   Pac,   618. 

90.  Bush  V.  Tecumseh  Xat.  Bank  (Xeb.) 
90   X.   \V.    236. 

01.     Deering  v.  Schreyer,  T!!  X.  Y.  451. 

92.  Buckman  v.  Hatch    (Cal.)    70  Pac.  221. 

93.  Anthony  v.  Carp.   90  Mo.  App.  387. 

94.  Triska  v.  Miller  (Xeb.)  91  X.  "W.  870, 
03.     Supreme  Council  Am.  Legion  of  Honor 

V.  Orcutt    (C.   C.  A.)    119   Fed.   682. 

96.  Stanley  v.  Core  (Iowa)  93  X.  "W.  343, 

97.  Black  V.  Missouri  Pac.  R.  Co  (Mo.) 
72  S.  W.  559. 

98.  On  appeal  from  an  order  of  deporta- 
tion of  a  Chinese  person — United  States  v. 
Lee  Huen,  118  Fed.  442. 

09.  Ballantyne  v.  Steenwerth  (X.  T.)  79 
App.  Div.   632. 


FINDINGS  OF  FACT.  181 

value  of  each  article,  that  the  property  had  been  disposed  of,  making  such  finding 
unnecessary.^  An  exliibit  shown  by  record  to  have  been  offered  in  evidence  against 
the  objections  of  the  opposing  party  and  referred  to  in  the  cross-examination  and 
which  appears  in  the  record  will  be  presumed  to  have  been  duly  read  when  intro- 
duced.^ In  support  of  a  judgment  for  damages  for  breach  of  a  contract,  it  will  be 
presumed  that  an  offer  made  by  defendant  for  performance  was  made  after  the 
breach  of  the  contract  and  after  the  time  within  which  performance  was  to  be  made.-'' 
Where  the  record  showed  that  when  objections  to  admission  in  evidence  of  a  judg- 
ment roll  in  a  former  action  were  overruled,  the  judge  directed  entry  of  a  statement 
that  it  had  been  admitted,  that  an  appeal  from  the  judgment  was  pending,  to  which 
no  objection  was  made,  it  will  be  presumed  that  the  existence  of  a  pending  appeal  was 
sufficiently  shown.*  Where  the  answers  of  a  wife,  to  whom  her  husband  has  con- 
veyed immovables,  to  interrogatories  of  his  creditors,  show  that  the  husband  has 
conveyed  property  in  another  state  for  a  consideration  arising  under  the  laws  there, 
the  appeal  court  will  not  assume  that  the  consideration  for  conveyance  of  the  property 
within  the  state  was  used  for  conveyance  of  the  foreign  property.^  Where  no  con- 
clusions of  facts  are  filed  by  the  trial  court,  the  facts  will  be  held  to  sustain  the 
judgment  unless  irreconcilable.^  The  statement  of  the  reasons  for  its  rulings  by 
the  court,  though  apparently  prolix,  will  be  presumed  proper  and  necessary.'' 

Review  as  affected  hy  the  character  of  the  evidence.^ — Evidence  improperly  ad- 
mitted below  and  against  which  the  finding  of  the  court  has  been  made  must  be  treat- 
ed as  disregarded,^  but  conclusions  not  properly  within  the  issues  considered  by  the 
court  below  in  making  its  judgment  cannot  be  rejected  as  surplusage.^"  The  record 
in  another  cause  between  the  same  parties  and  in  the  same  court,  merely  certified  to 
the  supreme  court  by  the  clerk,  cannot  be  considered  on  appeal,  since  judicial  notice 
cannot  be  taken  of  it  below.^^  Where  the  transcript  of  evidence  used  in  the  first 
trial  is  used  on  a  second  trial,  the  findings  of  the  lower  court  on  the  first  trial  cannot 
aft'ect  the  weight  of  the  evidence  on  appeal.^^  Incompetent  or  improper  judicial  no- 
tice taken  by  the  trial  court  will  be  rejected  in  determining  the  weight  of  evidence 
sustaining  an  order.^^  On  appeal  from  a  suit  on  a  contract,  the  real  contract  must 
be  largely  inferred  from  the  subsequent  course  of  dealing  of  parties  as  a  question  of 
fact,  where  it  was  not  originally  in  writing  and  the  terms  of  the  oral  agreement  were 
indefinite.^*  Which  of  the  parties  was  in  possession  of  lands  cannot  be  settled  on  ap- 
peal in  a  cause  where  the  evidence  showed  that  neither  had  ever  been  in  actual  pos- 
session.^*^ That  a  question  of  fact,  on  which  a  verdict  was  based,  was  decided  with 
difficulty,  will  not  be  gi-ound  for  a  reversal  unless  the  evidence  was  clearly  miscon- 
strued.^* A  verdict  on  conflicting  evidence  will  not  be  disturbed  unless  clearly 
wrong,^^  especially  if  approved  by  the  trial  judge,  unless  he  erred  as  to  the  law,^* 


1.  Bonner  v.  Springfield  Wagon  Co.  (Tex. 
Civ.  App.)    69  S.  W.  1032. 

2.  Sailor  v.  Caldwell,  65  Kan.  86,  68  Pac. 
1085. 

3.  Bmack  v.  Hughes,   74  Vt.  382. 

■1.  Boucher  v.  Barsalou,  27  Mont.  99,  69 
Pac.  555. 

r>.     Rush  V.   Landers,  107  La.   549. 

6,  Anderson  v.  Carter  (Tex.  Civ.  App.)  69 
e.   W.   78. 

T.  Gorham  v.  Sioux  City  Stock  Yards 
tlowa)    92  N.  "W.   698. 

8.  An  order  founded  on  both  written  and 
oral  evidence  will  not  be  disturbed  unless 
clearly  inconsistent  with  established  facts — 


10.  Chappell  V.  Jasper  County  O.  &  G. 
Co.   (Ind.  App.)   66  N.  E.  515. 

11.  The  record  must  be  introduced  in  evi- 
dence and  broug-ht  up  by  statement  of 
facts  or  bill  of  exceptions — Plumley  v.  Simp- 
son  (Wash.)   71  Pac.  710. 

12.  Hag-erman  v.  Bates  TColo.)  69  Pac. 
526. 

1.3.     State  V.  Fawcett  (Neb.)   90  N.  W.   250. 

14.  Whale  v.  Gatch   (Or.)    70  Pac.   832. 

15.  Planner  v.   Butler,   131   N.   C.    151. 

16.  A  verdict  that  a  road  was  defective 
for  want  of  a  railing  along  a  ravine — Barnea 
V.  Rumford,  96  Me.  315. 

17.  Engel  v-  New  TrrX   l!!^«n:ng  Post  Co., 


Male  V.  Dahlgrin    CNeb.)    92  N.  VT.   6o«.  .  «5  itflsc.  Kep.   (N.  T.)    377;  Topliff  v.  Chicago, 

>     in    re    Sawyer's    Estate    (Minn.)    92    N.    196  111.   215;   Parkins  v.  Missouri   Pac.   R.  Co. 
^    962  '  fNeb.t    Q2   TM    W.    147:    Kak«r   V.    Borello.    13S 


\. 


1S2 


APPEAL  AND  REVIEW. 


and  if  supported  by  substantial  evidence/^  or  if  made  on  a  view  bj-  the  jiirv,-"  or 


Cal.  160.  68  Pac.  591;  Lowenstein  v.  Alex- 
ander (Colo.  App.)  69  Pac.  270;  Martin  v. 
Dowd  (Idaho)  69  Pac.  276;  York  v.  Pacific 
&  I.  N.  R.  Co.  (Idaho)  69  Pac.  1042:  Kelly 
V.  Morris.  101  111.  App.  102;  Catron  v.  Scripps, 
101  111.  App.  105;  Renard  v.  Grande,  29  Ind. 
App.  579;  Duckwall  v.  Williams,  29  Ind. 
App.  650;  Roush  v.  Russell,  28  Ind.  App.  699; 
Sharpless  Co.  v.  Day  (Iowa)  90  N.  W'.  814; 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Mangrham  (Tex. 
Civ.  App.)  69  S.  W.  80;  Mills  v.  Thomas  Ele- 
vator Co..  172  N.  T.  660;  Lilienthal  v.  ]McCor- 
mick  (C.  C.  A.)  117  Fed.  89:  Bryan  v.  Bryan. 
137  Cal.  xix..  70  Pac.  304;  Columbia  Sav. 
Bank  v.  Los  Angeles  County,  137  Cal.  467, 
70  Pac.  308;  Donellan  v.  Ketchum,  78  App. 
Div.  (N.  T.)  144;  Rath  v.  Rath  (Neb.)  89 
N.  W.  612;  Schaaf  v.  Hamilton  (Neb.)  89 
N.  W.  614:  Pecha  v.  Kastl  (Neb.)  89  N.  W. 
1047;  Link  v.  Reeves  (Neb.)  91  N.  W.  506; 
Clifford  V.  Braun,  71  App.  Div.  (N.  T.)  432; 
Hofferberth  v.  Myers.  71  App.  Div.  (N.  T.) 
377;  Hume  v.  Hood  Camp  Confed.  Veterans 
(Tex.  Civ.  App.)  69  S.  W.  643;  Kleeb  v.  Long- 
Bell  Lumber  Co..  27  Wash.  648.  68  Pac.  202; 
Alexander  v.  "Wakefield  (Tex.  Civ.  App.)  69 
S.  W.  77;  Nelson  v.  Lexington,  24  Ky.  Law 
Rep.  1477;  Carroll  Contr.  Co.  v.  Gilsonite  R. 
&  P.  Co.  (Mo.  App.)  71  S.  W.  1119;  Jackson 
V.  McNatt  (Neb.)  93  N.  W.  425:  Rock  Island 
&  P.  R.  Co.  v.  Dormady,  103  111.  App.  127; 
Beale  v.  Patterson  (Iowa)  93  N.  W.  594;  Pin& 
v.  Callahan  (Idaho)  71  Pac.  473:  Boston  & 
M.  Consol.  C.  &  S.  Min.  Co.  v.  Montana  Ore 
Purchasing  Co..  27  Mont.  431.  71  Pac.  471; 
Patterson  v.  Mills,  138  Cal.  276,  71  Pac.  177; 
Day  &  F.  Lumber  Co.  v.  Bixby  (Neb.)  93  N. 
W.  688:  McKee  v.  Fagan  (Neb.)  93  N.  W. 
676;  Pettee  v.  Deere  Plow  Co.,  11  Okl.  467, 
68  Pac.  735;  Smith  Premier  Typewriter  Co. 
V.  Mayhew  (Neb.)  90  N.  "W.  939;  Dufrene  v. 
Anderson  (Neb.)  90  N.  W.  221;  Andrews  v. 
Steele  City  (Neb.)  89  N.  W.  739;  Continental 
Nat.  Bank  v.  Levy  (Neb.)  89  N.  W.  749;  Pax- 
ton  V.  Scott  (Neb.)  92  N.  W.  611;  Malone  v. 
Garver  (Neb.)  92  N.  W.  726;  Milwaukee  Nat. 
Bank  v.  Gallun  (Wis.)  92  N.  W.  567;  Patter- 
son V.  Mills  (Cal.)  68  Pac.  1034;  Lyons  & 
E.  P.  Toll  Road  Co.  v.  People,  29  Colo.  434,  68 
Pac.  275:  Bernardis  v.  Allen,  136  Cal.  7, 
68  Pac.  110;  Phoenix  Ace.  etc.,  Ass'n  v.  Hor- 
ton,  29  Ind.  App.  198;  Churchill  v.  Rose.  136 
Cal.  576.  69  Pac.  416;  Clipper  Min.  Co.  v.  Eli 
M.  &  L.  Co..  29  Colo.  377.  68  Pac.  286:  Felix 
V.  Brandstetter  Co.  (Iowa)  89  N.  W.  971; 
Gaboury  v.  Smith  (Colo.  App.)  69  Pac.  275; 
Williams  v.  Chapman  (Ind.)  66  N.  E.  460; 
Cinfel  V.  Malena  (Neb.)  93  N.  W.  165;  Chi- 
cago. B.  &  Q.  R.  Co.  V.  "Winfrey  (Neb.)  93 
N.  "W.  526;  Chicago  Cottage  Organ  Co.  v. 
Erbe  (Iowa)  90  N.  "W.  66;  Schumacher  v. 
Shawhan,  93  Mo.  App.  573;  Scheurmann  v. 
Styninger  (Mich.)  9  Detroit  Leg.  N.  119,  90 
N.  W.  292:  Brinkworth  v.  Hazlett  (Neb.)  90 
N.  "W.  537;  Omaha  Nat.  Bank  v.  Sanders 
(Neb.)  90  N.  W.  211;  Levy  v.  Hinz  (Neb.) 
90  N.  "W.  640:  Lusk  v.  Riggs  (Neb.)  91  N.  W. 
243;  State  Ins.  Co.  v.  Farmers'  Mut.  Ins. 
Co.  (Neb.)  90  N.  "W.  997;  Metz  v.  Blattner 
(Mo.  App.)  72  S.  "W.  489:  Boudinot  v.  Ha- 
mann  (Iowa)  90  N.  W.  497;  Bankers'  Union 
V.  Schiverin  (Neb.)  92  N.  W.  158;  Miller  v. 
Potter,  102  111.  App.  483;  Grafeman  Dairy 
Co.  V.  St.  Louis  Dairy  Co..  96  Mo.  App.  495; 
Hvde    V.    Mendel    (Conn.)    52    Atl.    744;    Bank 


of  Ackley  v.  Porter.  116  Iowa.  377;  Hercules 
Min.  Co.  V.  Central  Inv.  Co..  98  111.  App. 
427;  Greer  v.  Clay,  99  111,  App.  204;  Dop- 
pelt  V.  Columbia  Paper  Stock  Co..  99  111. 
App.  207;  St.  Louis  S.  W.  R.  Co.  v.  Camp- 
bell (Tex.  Civ.  App.)  69  S.  W.  453;  Sim- 
mons V.  Hutchinson  (IMiss.)  33  So.  21;  ilound 
City  L.  &  S.  Co.  V.  Miller,  170  Mo.  240:  Webb 
V.  Peck  (Mich.)  9  Detroit  Leg.  N.  449,  92 
N.  ^^^  104;  Dobbins  v.  Humphreys  (Mo.)  70 
S.  W.  815;  Garr  v.  Cranney  (Utah)  70  Pac. 
853:  Peniston  v.  Schlude  (Mo.)  71  S.  "W.  146; 
Johnston,  etc..  Hat  Co.  v.  Lightbody  (Colo. 
App.)  70  Pac.  957;  Kendall  v.  Selby  (Neb.) 
92  N.  W.  178;  Guilford  v.  Mason.  24  R.  I. 
386:  Missouri.  K.  &  T.  R.  Co.  v.  Gentry  (Tex. 
Civ.  App.)  70  S.  "W.  562;  Fears  v.  Fears 
(Ga.)  42  S.  E.  999;  Dunafon  v.  Barber  (Neb.) 
92  N.  W.  198;  Long  v.  Long  (Tex.  Civ.  App.) 
70  S.  "W.  587;  Wunderlich  v.  Palatine  Ins. 
Co.  ("Wis.)  92  N.  W.  264;  Todd  v.  Tork  (Neb.) 
92  N.  W.  1040;  Kirkham  v.  Moore  (Ind.  App.) 
65  N.  E.  1042;  Love  v.  Central  Life  Ins.  Co., 
92  Mo.  App.  192:  Lindell  v.  Deere-"V^'ells  Co. 
(Neb.)  92  N.  "W.  164;  Slack  v.  Harris,  101 
111.  App.  527;  Chicago.  B.  &  Q.  R.  Co.  v. 
Presbrey,  98  111.  App.  303:  Ziemens  v.  Har- 
wood.  99  111.  App.  309;  Williams  v.  Stroub, 
168  Mo.  346;  Zellars  v.  Missouri  W.  &  L.  Co.. 
92  Mo.  App.  107:  "Warder,  etc..  Co.  v.  Stiritz 
&  Co.,  103  111.  App.  525.  If  the  verdict  is 
responsive  to  the  issues — Hudelson  v.  Mc- 
Callum.  103  111.  App.  408;  Petzel  v.  Chicago 
&  N.  W.  R.  Co.,  103  111.  App.  210;  Nehring 
V.  Larson.  103  111.  App.  160;  Gribble  v.  Ever- 
ett (Mo.  App.)  71  S.  W.  1124;  Obuchon  v. 
Boyd,  92  Mo.  App.  412.  Even  though  the 
evidence  preponderates  in  favor  of  the  un- 
successful party — Chicago  City  R.  Co.  v. 
Leach,  104  111.  App.  30.  Or  he  is  sustained 
by  the  larger  number  of  witnesses — Cope- 
land  V.  Metropolitan  St.  R.  Co.,  78  App.  Di%-. 
(N.  T.)  418;  Pence  v.  Wabash  R.  Co..  116 
Iowa,  279;  Faivre  v.  Manderschied  (Iowa)  90 
N.  W.  76.  Merely  a  slight  preponderance 
as  to  the  number  of  witnesses  testifying 
to  the  lack  of  mental  capacity  of  a  testator 
will  not  •w'arrant  the  reversal  of  a  verdict 
finding  his  capacity  sufficient  to  make  a 
will — Mahon  v.  Mooney.  196  111.  147.  Though 
most  of  plaintiff's  evidence  is  given  by  depo- 
sition— Rounth'waite  v.  Rounthwaite.  136  Cal. 
XX..  68  Pac.  304.  The  appeal  court  will  only 
determine  whether  the  evidence  tended  to 
support  the  verdict — Chicago  Terminal  T. 
R.  Co.  V.  Kotoski.  199  111.  383.  That  the 
verdict  is  too  small  will  not  avail — Robin- 
son V.  Rhea-Thielens  Implement  Co.,  103  111. 
App.  62.  The  trial  judge  is  arbiter  as  to 
questions  of  fact  depending  on  conflicting 
evidence,  whether  given  by  affidavit  or  depo- 
sition, or  by  word  of  witnesses — Sheehan  v. 
Osborn,  138  Cal.  512.  71  Pac.  622.  He  has 
also  a  better  opportunity  of  judging  of  the 
credibility  of  witnesses^-Stivers  v.  Conklin. 
103  111.  App.  288;  Dunn  v.  Springfield  F.  & 
]\I.  Ins.  Co.  (La.)  33  So.  585.  If  the  evidence 
of  either  side  standing  alone  would  support 
a  verdict  for  it,  the  verdict  rendered  will  be 
affirmed — Abrims  v.  Rideout.  101  111.  App. 
131.  A  sharp  conflict  in  the  evidence  will 
not  produce  reversal,  unless  the  rulings  of 
the  court  on  the  evidence  and  the  instruc- 
tions were  such  as  to  prejudice  appellant's 
case — Chicago,    etc.,    R.    Co.    v.    Johnson,    99 


FINDINGS  OF  FACT, 


183 


where  the  trial  court  matle  a  personal  examination  of  the  subject-matter,**  and  if  the 
losing  party  made  no  exceptions  to  the  charge  of  the  judge  and  did  not  request  a 
different  submission  of  facts  to  the  jury,^-  and  the  view  of  the  evidence  most  favorable 
to  a  party  must  be  taken  in  support  of  a  judgment  for  him,-^  the  appeal  court  only 


111.  App.  400.  Though  there  is  much  evi- 
dence which  is  obviously  untrue,  the  judg- 
ment will  not  be  disturbed — Snyder  v.  Nel- 
son, 101  111.  App.  619.  Verdict  on  contra- 
dictory testimony  of  the  parties  as  the  <inly 
witnesses  —  Rickey  v.  Brady  (Colo.  App.) 
70  Pac.  444.  In  a  case  depending  entirely 
on  disputed  questions  of  fact  properly  sub- 
mitted— Wholeben  v.  Warren  Mica  Lubri- 
cant Co.,  203  Pa.  234.  If  the  evidence  is 
given  by  witnesses  of  apparently  equal 
credibility  and  is  directly  conflicting,  the 
jury  has  a  right  to  select  the  person  whom 
it  will  believe,  and  its  verdict  is  conclusive. 
Action  against  railroad  for  personal  in- 
juries on  conflicting  evidence  as  to  nesrli- 
gence  of  the  company  in  running  an  engine 
without  headlight  or  warning — Cleveland, 
C,  C.  &  St.  L.  R.  Co.  V.  Coffman  (Ind.  App.) 
64  N.  E.  233.  If  no  evidence  appears  which 
fairly  proves  a  material  finding  of  the  jury, 
their  verdict  will  be  reversed — Haenky  v. 
Weishaar,  64  Kan.  717,  68  Pac.  610.  The 
preponderance  of  evidence  establishing  con- 
tributory negligence  of  plaintiff  in  action 
for  personal  injuries  will  cause  a  verdict  in 
his  favor  to  be  set  aside — Pardridge  v. 
Gilbride.  98  111.  App.  134.  The  finding  must 
be  so  manifestly  against  the  evidence  that 
.a  new  trial  should  have  been  granted  be- 
low— Randall  v.  Wadsworth,  130  Ala.  633. 
As  where  it  is  wholly  unsupported — Grooms 
V.  Lieurance,  98  111.  App.  394;  Kehlor  v. 
Wilton,  99  111.  App.  228;  Derby  v.  Derby,  101 
111.  App.  154.  And  the  undisputed  fixed 
facts  show  that  the  verdict  is  contrary  to 
the  evidence — Manss-Bruning  Shoe  Co.  v. 
Prince,  51  W.  Va.  510.  Or  it  is  against  the 
weight  of  evidence  so  as  to  shock  the  sense 
of  justice  of  reasonable  persons — Singer 
Mfg.  Co.  V.  Rogers.  70  Ark.  385.  Sufficiency 
of  evidence  to  warrant  reversal  of  verdict 
as  against  the  evidence — Gulf,  C.  &  S.  F. 
R.  Co.  v.  Mangham  (Tex.  Civ.  App)  69  S.  W. 
80;  Central  of  Georgia  R.  Co.  v.  Austin.  114 
Ga.  905.  Finding  as  to  whether  the  oppor- 
tunity was  given  plaintiff  to  be  negligent  in 
attempting  to  leave  a  car — Beringer  v.  Du- 
buque St.  R.  Co.  (Iowa)  91  N.  W.  931.  As 
to  contributory  negligence  of  parent  in  pro- 
tecting child,  in  action  for  personal  injuries 
to  the  latter — St.  Louis  S.  W.  R.  Co.  v.  By- 
ers  (Tex.  Civ.  App.)  69  S.  W.  1009.  Finding 
as  to  value  of  real  estate  to  be  sold  on  fore- 
closure— Bowman  v.  Bellows  Falls  Sav.  Inst. 
(Neb.)  92  N.  W.  204.  Findings  in  highway 
proceedings — Raab  v.  Roberts  (Ind.  App.) 
64  N.  E.  618.  Judgment  in  condemnation 
of  lands — Guyer  v.  Davenport,  R.  I.  &  N.  W. 
R.  Co.,  196  111.  370.  Decision  as  to  which 
was  the  predominant  material  in  an  article 
subject  to  customs  duties — Leerburger  v. 
United  States,  113  Fed.  976.  Finding  as  to 
blame  for  collision  of  vessels — Gaffner  v. 
Pigott  (C.  C.  A.)  116  Fed.  486.  Amount  of 
recovery  found  in  replevin  for  fair  rental 
of  property — Adams  v.  Wright,  74  Conn.  551. 
Finding  as  to  fraudulent  disposal  of  prop- 
erty by  debtor — Dimmock  v.  Cole  (Mich.) 
9  Detroit  Leg.  N.  166,  90  N.  W.  333.  Find- 
ing   as    to    whether    tenant    held    over    after 


expiration  of  his  term — Chicago  v.  Peck,  98 
111.  App.  434.  Finding  as  to  whether  ani- 
mal killed  by  train  was  struck  on  public 
Iiighway  on  right  of  way  which  should  have 
been  fenced — St.  Louis  S.  W.  R.  Co.  v.  Neal 
(Tex.  Civ.  App.)  69  S.  W.  91.  Finding  of 
trial  court  that  an  irrigation  ditch  con- 
structed on  land  of  another  had  been  ma- 
terially enlarged  without  authority — Smith 
V.  Fresno  C.  &  I.  Co.,  136  Cal.  xx..  68  Pac. 
490.  Civ.  Code  Cal.  §§  1835,  2061,  regarding 
sufTiciency  of  evidence  to  sustain  verdict 
in  civil  cases,  construed — Parker  v.  Gregg. 
136  Cal.  413,  69  Pac.  22.  Findings  of  fraud- 
ulent intent  in  transfer  by  bankrupt — Cul- 
linane  v.  State  Bank  (Iowa)  91  N.  W.  783. 
Finding  as  to  ability  of  passenger  to  take 
care — -Wheeler  v.  Grand  Trunk  R.  Co.,  70 
N.  H.  607.  Finding  as  to  whether  an  in- 
sured committed  suicide  or  was  murdered, 
where  both  parties  without  objection  call 
witnesses  to  express  their  opinions  as  ex- 
perts on  the  facts  as  shown  and  their  opin- 
ions were  conflicting — Union  Cent.  Life  Ins. 
Co.  v.  Skipper,  115  Fed.  69,  52  C.  C.  A.  663. 
Finding  as  to  whetlier  plaintiff  had  dis- 
posed of  mortgaged  chattels  without  proper 
authority  or  permission  of  defendant — Mat- 
thews V.  Granger,  196  111.  164.  Finding  on  ques- 
tion whether  the  bell  was  properly  rung  or 
the  whistles  sounded  in  action  for  injuries  on 
railroad — Chicago  &  A.  R.  Co.  v.  Corson,  101 
111.  App.  115.  A  verdict  in  an  action  for  per- 
sonal injuries  held  not  to  be  disturbed  unless 
plainly  against  the  evidence  or  the  result  of 
passion  or  prejudice  or  because  the  jury  has 
misconceived  the  effect  of  the  evidence,  where 
it  plainly  appears  that  the  negligence  of  the 
defendant  produced  the  injury  to  the  in- 
jured person — Chicago  &  A.  R.  Co.  v.  Cor- 
son, 101  111.  App.  115.  Finding  that  one 
party  to  a  contract  for  real  estate  sale  was 
not  to  execute  the  notes  necessary  to  bind 
the  contract  in  an  action  to  recover  commis- 
sions— Carnes   v.    Howard,    180    Mass.    569. 

18.  Atlanta  Consol.  St.  R.  Co.  v.  .Tones 
(Ga.)  42  S.  E.  524;  Central  of  Georgia  R.  Co. 
V.  Bond,  114  Ga.  913.  The  rule  obtains  though 
the  verdict  was  not  strictly  in  accord  with 
the  evidence  where  the  court  below  refused 
a  new  trial — Lackey  v.  State.  115  Ga.  242. 
And  there  was  some  evidence  to  support 
the   verdict — Brown  v.   Latham,   115   Ga.    666. 

19.  Gorringe  v.  Read.  24  Utah,  455.  68 
Pac.  147;  De  Mund  Lumber  Co.  v.  Stilwell 
(Ariz.)  68  Pac.  543;  Willard  v.  Carrigan 
(Ariz.)    68  Pac.   538. 

20.  Judgment  for  damages  foi*  change  of 
grade  of  a  street — Danville  v.  Schultz,  99  111. 
A\pp.   287. 

21.  Herriman  Irr.  Co.  v.  Keel,  25  Utah, 
96,   69  Pac.   719. 

22.  Jones  V.  Lustig,  37  Misc.  Rep.  CN.  T.) 
834;  Lauck  v.  Metropolitan  St.  R.  Co.,  37 
Misc.  Rep.  (N.  Y.)  847;  Waldeck  v.  Cush- 
man,  37  Misc.  Rep.   (N.  Y.)   848. 

23.  Kelley  v.  Chicago,  B.  &  Q.  R.  Co. 
(Iowa)  92  N.  W.  45;  Akers  v.  Akers,  24  Ky. 
Law  Rep.  636;  Louisville  &  N.  R.  Co.  v. 
Steenberger,  24  Ky.  Law  Rep.  761. 


1S4 


APPEAL  AND   REVI 


weigliing  the  evidence  to  determine  its  sii~.^.ci;iicy  to  support  a  verdict.-*  The 
finding  of  the  trial  court  without  a  jury  c::  :-.  -iw  and  facts  will  be  treated  as  the 
verdict  of  a  properly  instructed  jury,"  vr;  :  .ere  is  evidence  reasonably  tending 
to  support  it/*  or  where  no  declarations  of  law  are  requested  ;='  but  if  an  error  as  to 
preponderance  of  evidence  appears,  it  will  be  reversed.'*  The  same  is  true  of  spe- 
cial findings  of  fact  tried  by  the  court.^ 

Effect  of  approval  by  the  trial  judge. — A  verdict  on  questions  of  fact  approved 
by  the  court  will  not  be  disturbed,^**  except  for  error  on  the  part  of  the  trial  judge," 
though  the  appellate  court  believes  the  weight  of  evidence  to  be  against  it.^- 


M.  Anderson  v.  Medbery  (S.  D  )  82  N.  '^. 
10S9.  The  trial  court  should  determine 
vrhezher  the  Terdict  is  against  the  evidence 
— "^Valbrath  v.  Bohnenkamp  (Mo.  App.)  70 
S.   "W.    1112. 

35.  Excelsior  Coal  Min.  Co.  v.  Gatliff.  24 
Ky.  Law  Rep.  6S2:  Curtis  v.  Tyler.  90  Mo. 
App.  345:  McKee  v.  Verdin  (Mo.  App.)  TO  S. 
TV.  154;  Solomon  v.  Solomon  (Xeb.)  92  N. 
'.V.  124;  Hanna  v.  Clark  (Pa.)  53  Atl.  T5S; 
Garr  v.  Cranney  (I7tah)  70  Pac.  S53;  Pollard 
V.  Allen.  96  Me.  455;  Beifeld  v.  Pease,  101 
IlL  App.  539:  Myers  v.  Menefee  (Tex.  Civ. 
App.)  68  S.  W.  540:  Austin  v.  (Georgia  Ll  & 
T.  Co.,  115  Ga.  152:  Merkert's  Estate  v. 
Grobe  (lowa^  90  X.  TV.  490;  Allen  v.  Henn. 
197  HL  486:  Rogers  v.  Hopper.  94  Mo.  App. 
437;  Franklin  County  Back  v.  Everett 
(Xeb.)  91  X.  W.  495;  HiU  v.  Whale  Min.  Co.. 
15  S.  D.  574;  Xoble  v.  MiUer,  168  Mo.  533: 
Snyder  v.  Commercial  Union  Assur.  Co.,  67 
X.  J.  Law.  626:  MiUer  v.  Servis  (N.  J.  Sup.) 
52  AtL  374:  Bozarth  v.  Lincoln  Legion  of 
Honor.  93  Mo.  App.  -564;  Los  Angeles  Trac- 
tion Co.  V.  Wilshire.  135  Cal.  654.  67  Pac. 
10S6:  McGray  v.  Monarch  Elevator  Co.  (S. 
D.)  91  X.  TV.  457;  Kaestner  v.  Oldham.  102 
HL  App.  372:  Atlantic  CMty  v.  (Goldstein.  67 
N.  J.  Law.  517;  Martin  v.  TViUiams,  96  Mo. 
App.  249;  Leonard  v.  Mallory  (Conn.i  53 
4.tl.  77S:  TVe?:  v.  East  Coast  Cedar  Co.  (C 
C.  A.)  113  Fed.  737;  State  v.  Penter,  96  Mo. 
.\pp.  416:  Powers  v.  Perkins  (Mich.)  92  N. 
TV.  790:  Romero  v.  Coleman  (X.  M.)  70  Pac 
559:  Rush  v.  Fletcher  (X.  M.)  70  Pac.  559: 
Darling  ililling  Co.  v.  Chapman  (Mich.)  92 
X".  TV.  352;  Tinker  v.  Catlin.  102  HI.  App. 
264.  It  must  appear  manifestly  against  the 
weight  of  the  evidence — ^Denver  Life  Ins. 
Co.  V.  Price  (Colo.  App.)  69  Pac  313;  Jones 
V.  Maxton.  100  111.  App.  201:  Hare  v.  Win- 
terer (X'eb.)  90  X'.  TV.  544;  St.  Louis.  B.  & 
S.  R.  Co.  V.  Gray.  100  ILL  App.  538.  The 
credibility  of  witnesses  is  a  question  for 
the  trial  court — In  re  Moore's  Estate 
rMinn-t  93  X.  TV.  523.  Especially  where  the 
court  has  the  opportunity  to  see  and  hear 
the  flatnesses — Springer  v.  Chicago  Real 
Estate  L.  &  T.  Co..  102  HI.  App.  294;  Bouton 
v.  Cameron.  99  IlL  App.  600.  Though  affirm- 
ative admissions  of  the  successful  party 
tend  to  an  adverse  judgment — TVright  v. 
Patterson  (Ga.)  43  S.  E.  49.  It  is  insufficient 
that  the  conclusions  of  fact  are  subject  to 
grave  doubt — Shaffer  v.  Shaffer.  51  TV.  Va. 
125.  Especially  where  the  trial  Judge  in 
a  written  opinion  states  his  conclusions  of 
fact — Griffith  v.  Finger  &  S.  Mfg.  Co..  115 
Ga.  592;  and  no  propositions  of  la\F  are  sub- 
mitted— Jones  V.  Glathart,  100  HL  App.  630. 
On  waiver  of  jury  by  stipulation — ^TVolff  v. 
Wells.  Fargo  &  Co..  115  Fed.  32,  52  d  C 
▲.  626:  though  the  case  is  tried  de  novo  on 


the  appeal — Druse  v.  Davey  (Xeb.)  90  X. 
TV.  644.  Unreasonable  delay  in  payment  of 
claim  as  question  of  fact — ^Union  EL  R,  Co. 
V.  Xixon.  99  ILL  App.  502.  Improper  con- 
sideration of  affidavits  of  jurors  to  impeach 
their  verdict  and  of  counter  affidavits  -will 
not  change  the  rule — Canon  v.  Farmers' 
Bank  (Xeb.)  91  N.  TV.  5S5.  The  finding  is 
that  of  the  court  where  each  party  asks 
direction  of  a  verdict  vrithout  rsking  sub- 
mission of  specific  questions  of  fact — ^TVest- 
ervelt  v.  Phelps.  171  X.  T.  212.  Finding  as 
to  the  furnishing  of  proofs  of  death  in  ac- 
tion on  life  policy — Franklin  Life  Ins.  Co. 
V.  Hickson,  197  IlL  117.  Findings  as  to  ad- 
verse claims  to  mining  property  dependent 
on  evidence  as  to  veins,  dips,  etc — Montana 
Ore  Purchasing  Co.  v.  Boston  &  M.  ConsoL 
a  &  S.  Min.  Co..  27  Mont.  288.  70  Pac  1114. 
As  to  misconduct  of  an  executor — Thomas 
V.  Hosselkus.  137  (3aL  474.  70  Pac.  455. 
Question  of  honesty  of  co-tenant  in  placing 
improvements  on  the  land  in  action  by  the 
other  co-tenant  to  recover  profits  of  resale 
by  the  former — Friedrich  v.  Fergen.  15  S. 
D.  541.  Finding  as  to  cutting  of  timber  by 
mortgagor  after  execution  of  mortgage  in 
action  for  waste — Girard  Life  Ins..  A.  &  T. 
Co.  V.  Mangold,  94  Mo.  App.  125.  Finding  as 
to  qnalifications  of  signers  of  application  for 
liquor  license — ^Persinger  v.  Miller  (Xeb.) 
90  N.  TV.  242.  Questions  of  fact  on  hearing 
of  petition  for  leave  to  file  claim  for  dam- 
ages resulting  from  defective  highway  un- 
der Pub.  St-  X.  H.  c  76.  S  9 — ^Drew  v.  Derry. 
71  X.  H.  113.  Finding  in  ejectment  as  to 
validity  of  plaintiff's  title — ^TVest  v.  East 
Coast  Cedar  Co..  113  Fed.  737,  51  C-  C  A. 
411.  Decision  of  court  as  to  misconduct  of 
counsel — (German  Ins.  Co.  v.  Shader  (Xeb.) 
93  X.  TV.  972.  Conclusions  of  the  court 
on  submission  of  a  case  ■wItTiout  a  jury  on 
an  agreed  statement  of  facts  will  be  re- 
viewed where  the  statement  is  filed  and 
made  a  part  of  the  record.  The  statement 
amounts  to  a  special  verdict — ^Mutual  Life 
Ins.  Co.  v.  KeUy.  114  Fed.  268.  52  Q  C.  A. 
154. 

SS.     Stai   V.   Selden.   87  Minn.   271. 

2T.     Heman  v.  (Jerardi.   96  Mo.  App.   231. 

2S.  Iroquois  Furnace  Co.  v.  Elphicke.  200 
HL  411. 

29l  Board  of  Trustees  v.  Morris.  24  Ky. 
Law  Rep.  1420;  Veum  v.  Sheeran  (Minn.)  92 
X.  TV.  965:  Rank  v.  Garvey  (Xeb.)  92  X.  TV. 
1025.  The  evidence  being  largely  oral,  the 
appellate  court  TviU  be  greatly  Ijifluenced 
by  the  greater  ability  of  the  trial  judge  to 
settle  the  question  of  their  credibility — 
Crawford  v.  Dixon    (Mo.  App.)   71  S.  TV.  470. 

Sn.  "Where  the  motion  for  new  trial  is 
confined  to  general  grounds — TValters  v. 
Freeman  (Ga.)  42  S.  E.  741. 


FINDINGS  OF  FACT. 


185 


Effect  of  two  trials  helow. — The  court  of  appeal  may  always  consider  the  fact 
that  two  juries  have  found  the  same  verdict  in  the  case/^  and  where  two  juries  have 
found  the  same  verdict  on  a  proper  submission  of  fact  and  conflicting  evidence,^*  on 
substantially  the  same  e\adence,  and  the  trial  judge  in  each  instance  has  refused  to 
set  aside  the  verdict,^^  it  will  not  be  disturbed  as  against  the  weight  of  evidence, 
especially  where  the  second  verdict  was  on  the  same  and  additional  evidence.^^  The 
rule  will  apply  to  a  decision  by  two  courts  on  the  same  question  of  fact.^^  Even  a 
second  verdict  in  favor  of  a  party  will  be  set  aside  where  there  is  no  evidence  to  sup- 
port the  theory  of  the  case  necessary  to  its  support. ^^ 

Effect  of  theory  of  facts  on  tohich  judgment  is  based. — A  judgment  for  plaintiff 
rendered  upon  a  certain  theory  cannot  be  supported  upon  another  theory  of  the  case 
not  submitted  to  the  jury  nor  upon  which  defendant  made  any  defense.^^  That  the 
judgment  below  was  founded  on  a  theory  opposite  from  that  urged  by  plaintiff  below 
whereby  he  was  aggrieved  will  not  prevent  relief  on  appeal  on  his  theory.*"  Where 
a  case  is  submitted  solely  on  one  of  three  grounds  urged  by  plaintiff,  a  verdict  for 
him  cannot  be  sustained  on  the  theory  that  the  evidence  would  have  justified  a  finding 
for  him  on  either  of  the  other  grounds.*^  Wliere  plaintiff  relied  upon  two  grounds 
and  no  declarations  of  law  were  asked  or  given,  a  judgment  for  defendant  will  not  be 
reviewed  where  it  cannot  be  ascertained  which  ground  the  judgment  was  based 
upon.*^  Though  the  judge  below  based  his  judgment,  in  a  cause  submitted  on  the 
merits,  on  legal  principles,  and  declined  to  pass  on  other  questions,  upon  a  determina- 
tion of  which  the  same  judgment  might  have  been  found,  the  supreme  court  may 
affirm  the  judgment  on  the  latter  grounds.*' 

In  equitable  proceedings. — Decrees  or  findings  of  fact  in  equity/*  or  findings  of 


31.  National  Cash  Register  Co.  v.  Hickox 
&   R.   Pub.  Co..  102  111.  App.   331. 

33.  Colyer  v.  Missouri  Pac.  R.  Co.,  93  Mo. 
App.  147. 

33.  McCoy  V.  Munro,  76  App.  Div.  (N.  T.) 
435. 

34.  Moore  V.  Bldridg-e,  114  N.  Y.  St.  Rep. 
922;  Illinois  Cent.  R.  Co.  v.  Sporleder,  100 
111.  App.  626;  Louisville  &  N.  R.  Co.  v.  Shu- 
maker's  Adm'x,  23  Ky.  Law  Rep.  2458.  Un- 
less there  is  a  showing-  of  undue  partiality 
or  prejudice — Haycraft  v.  Griggsby,  94  Mo. 
App.  74.  Especially  where  the  first  verdict 
was  reversed  for  errors  on  the  trial — Louis- 
ville &  N.  R.  Co.  V.  Alumbaugh's  Adm'r,  24 
Ky.  Law  Rep.  349.  If  there  is  evidence  to 
support  the  verdict  and  it  has  been  ap- 
proved by  the  trial  court,  though  the  court 
on  appeal  and  trial  de  novo  might  reach  a 
different  conclusion — Weinberger  v.  McDon- 
ough,  98  111.  App.  441.  SufRciency  of  evi- 
dence of  personal  injuries  warranting  sec- 
ond verdict  for  same  amount — Loker  v. 
Southwestern  Mo.  Elec.  R.  Co.,  94  Mo.  App. 
481. 

35.  Where  only  one  issue  of  fact  appear- 
ed in  the  case — McMahon  v.  Jacob,  76  App. 
Div.    (N.    Y.)    346. 

36.  Allen  V.  McKay   (Cal.)    70  Pac.   8. 

37.  Brainard  v.  Buck,  184  U.  S.  99.  Facts 
twice  passed  on  below  with  same  result  vpill 
not  be  re-examined  by  supreme  court  in  a 
Chinese  deportation  case,  although  treaty 
questions  were  raised,  enabling  disposal  of 
the  entire  case — Chin  Bak  Kan  v.  United 
States,    186  U.   S.   193. 

38.  Where  in  an  action  on  a  note  alleged 
to  have  been  paid  by  an  authorized  agent, 
no    evidence   appears    of   the   creation   of   the 


agency  for  that   purpose — Antognoli   v.   Mil- 
ler  (Ga.)   42  S.  E.  1006. 

39.  Clark  v.  Manhattan  R.  Co.,  77  App. 
Div.    (N.  Y.)    284. 

40.  Owatonna  v.  Rosebrock  (Minn.)  92 
N.  W.  1122. 

41.  Fielders  v.  North  Jersey  St.  R.  Co. 
(N.  J.  Err.  &  App.)    53  Atl.   4T)4. 

42.  Early  v.  Helmaring,  170  Mo.  597. 

43.  Under  Const.  Miss.  1840,  §  146,  and 
Code  Miss.  1892,  §§  4350.  4353— Yazoo  &  M.  V. 
R.  Co.  V.  Adams   (Miss.)   32  So.  937. 

44.  Davis  v.  Auld,  90  Me.  559;  Vinson  v. 
Scott,  198  111.  144;  Derdeyn  v.  Donovan  (Miss.) 
33  So.  652;  Callender  v.  Dole,  198  111.  616;  Hub- 
bard v.  Hubbard,  198  111.  621;  Lacotts  v.  Dunn 
(Ark.)  72  S.  W.  370;  Robinson  v.  Sharp,  201 
111.  86;  Mississippi  Cotton  Oil  Co.  v.  Smith 
(Miss.)  33  So.  443;  Dermott  v.  Priddy  (Mo. 
App.)  71  S.  W.  1088;  Arnold  v.  Northwestern 
Tel.  Co.,  199  111.  201;  Stevens  v.  Magee  (Miss.) 
33  So.  73;  Travis  v.  Parks  (Mich.)  8  Det.  Leg. 
N.  1118.  89  N.  W.  569:  Espenschied  v.  Baum 
(C.  C.  A.)  115  Fed.  793;  Spencer  v.  Landsaw, 
24  Ky.  Law  Rep.  15.  Finding  largely  on  oral 
evidence — Powell  v.  Canaday,  95  Mo.  App. 
713;  Roberts  v.  Central  Lead  Co.,  95  Mo. 
App.  581;  based  on  advisory  vardict  of  jury 
— Bemmerly  v.  Smith,  136  Cal.  5.  68  Pac.  97. 
Finding  of  court  reversing  finding  of  mas- 
ter— Nash  V.  Woodward  (S.  C.)  40  S.  E.  895. 
Finding  as  to  existence  of  a  trust — Harris  v. 
Harris,  136  Cal.  379,  69  Pac.  23;  as  to  exist- 
ence of  partnership — Lyle  v.  Howard's 
Adm'x,  24  Ky.  Law  Rep.  143.  Finding  by 
chancellor  as  to  wilfull  trespass  and  puni- 
tive damages  therefor — Howell  v.  Shannon, 
80  Miss.  598.  Finding  in  foreclosure  that 
no    proceedings    hauv*    been    had    at    law    to 


1S6 


APPEAL  AND  REVIEW. 


a  master. 


on  cc 


■t:nr  evlcence  a—rmed  bj  tte  coiirt.,'**  or  of  a  ?pe<?:a!  Tr.as+er.'" 
in  an  equiiable  accounimg  imder  the  eje  of  the  court,"  will  not  be  set  asiae  xtaless 
irrecondlable  with  any  reasonable  constmction  of  the  testimony,**  thongh  if  the 
evidence  had  been  submitted  to  the  appeal  conrt  it  mi^t  hsTe  reached  a  different 
eondnsion,**  especiallr  where  the  evidence  leaves  the  appeal  conrt  in  donbt,"  or 
where  the  evidence  is  conflicting  and  heard  in  open  conrt,"  the  chancellor  hearing 
and  seeing  the  witnesses  being  in  a  better  position  to  jndge  of  their  credibility;*'  but 
if  the  chancellor  did  not  have  the  advantage  of  hearing  the  testimony  of  the  more 
important  witnesses,  his  finding  will  not  be  binding  on  the  appellate  courL**  In  an 
tHjuitable  action  iu  lilissotrri  and  South  Carolina,  the  court  will  review  evidence 
without  regard  to  findings  below  and  render  a  proper  Judgment**  The  rule  that  a 
judgment  will  not  be  reversed  unless  clearly  against  the  evidence  will  not  apply  to 
suits  in  equity  in  Kentucky.**  Disputed  facts  in  conctirrent  findings  of  a  master  and 
the  circuit  court  together  with  the  circuit  court  of  appeals  wiU  not  be  disturbed  by 
the  supreme  court  of  the  United  States.*^  Where  an  answer  in  an  action  tried  by 
the  court  pleads  an  equitable  defense  and  prays  afBrmative  relief,  the  weight  of  evi- 
dence and  the  credibility  of  the  witnesses  are  for  the  court  if  the  action  is  tried  as  at 
law."  All  reasonable  presumptions  are  in  favor  of  findings  in  a  decree,**  or  of 
the  findings  of  a  master**  where  the  evidence  is  not  reported."  Facts  omitted  from 
the  special  findings  of  a  suit  in  equity  will  be  considered  as  found  on  appeal  whwe 
WHidusivelv  established  bv  the  evidence  and  necessary  to  the  decree.*' 


recover  any  part  of  debt — ^r. r^rt   v.  Moran 
.Neb.)  89  X.  W.  1045.     Firi      ?  ::.i:  :eUorj 

that  land  covered  by  a  ps.: t:.  ".  -    -  siate  j 

was  inclnded  in  an  earlier  t  '-".'.  .r.  _  tr.at  I 
the  later  patent  -was  vole —  .  ~  r  H  :  -  r  ;.  " 
24  Ky.  Law  Rep.  961-    Or  i  ? 

ceiver's  account  against   : .     r  ^  -  = 
fraud — Minneapolis  Trust  : '  - :     - 

Minn.  L     Finding  as  to  ex  :    :r      ,. 

lariiy    in    decree    made    t ;  r :\  r     :  :  :  r : 

that  made  the  decree — ^Tr  H    ";-   .-. 

<Mich.)   9  Detroit  Lee.  X    '-■'  -•'     "' 

Finding  as  to  right  to  te~ ;    -    r       ^      :  r. 

on  contradictory  co"-"--  '  .-  _r_- 

ing  good  faith  of  t  —  S    r    :    =  r    Sc 

O.  L.  Elec.  R.  Co.  V.  ; .  . .     _     J.     _  ;      '  4 

App.  Div.  (N.  Y.)  565. 

.15.  Barton  v.  Hulsey  (Ind.  T.)  69  Sw  "W. 
S68;  John  Hancock  Life  Ins.  Co.  t.  Honpt, 
113  Fed-  572;  Bogue  v.  Franks.  100  IlL  App. 
434. 

4«.  Ferguson  Contract  Co.  v.  Manhattan 
Trust  Co.  (C  C  A-)  118  Fed.  791;  Hagemann 
V.  Etagemann.  102  IlL  App.  479:  Beatty  v. 
Somerville.  102  111.  App.  487;  Helb  v.  Hake, 
203  Pa-  626. 

-fX.  Murphy  ▼.  Southern  R.  Co.  (C  C  A.) 
115  Fed.  257. 

48.  Goetting  ▼.  Weber.  71  App.  Div.  (X. 
Y.)   503. 

.^L  Frerking  ▼.  Thomas  (Xeb.)  89  N.  W. 
1005. 

S*.    Kohlsaat 
103  HL  App.  110. 

51.  Taylor  v.  King.  24  Ky.  Law  Rep. 
1824;  Lowry  ▼.  Paw  Paw  Sav.  Bank  (Mich.) 
93  N.  "W.  530;  Howton  v.  Gilpin.  24  Ky.  Law 
Repi  630. 

SS.  Garden  City  Sand  Co.  v.  Gettins,  200 
IlL  26S:  'W"etzstein  v.  Largey,  27  Mont.  212. 
70  Pac  717:  In  re  Fagues  Estate.  19  Pa. 
Super.  Ct-  638;  BatUe  Creek  YaL  Bank  v. 
Collins  (Xeb.)  90  N.  W.  921. 


V.   Illinois   T.    &   Sav.    Bank. 


sa.  Polarek  ▼.  Gordon.  103  HL  App.  356; 
Kochman  ▼.  (TNeiU,  102  HL  App.  475. 

54.  Kinney  v.  Murray.  170  Mol  C74. 

55.  Rev.  St.  1899.  S  695.  as  to  review  on 
appeal  does  not  apply  to  equity  cases — Fltx- 
patrlck  V.  Weber.  168  Mo.  562.  Under  Const. 
~     C  art.  5.  S  4,  the  court  must  examine  aU 

testimony    in    eqfuity    cases — ^Bro'wn    v. 
:      -velL   64   S-  a   27. 

r-o.      T;.:".  :r     v.     Kir.s-      24     Sy.     L.2.-^     Rep. 


App.   347.      ^lYbere  it   appears   rr: 
ord  that  the  order  of  sale  was  tt 
appraisement   in    foreclosure   ari 
erty  ^ras  appraised  and  sold  nr. 
order,  tbe  presumption  wiU  obt 
proi»erty    brought    t^aro-tlilrds 
praisement    unless    a    contrary 
made — Bo^rditch  ▼.  0*Luui   CNe': 
523.      "WTiere    several    writs    ccr 
sheriff    to    execute    a   decree    ci 
were  issued,  it  wiU  be  presumes 
sence    of    contrary    showing    tr. 
praisement  w^is  vaUd — Omaha.  N 
Sanders  (Xeb.)   90  X.  W.  211. 

Mu     If  an  action  was  origins' . 
fore  a  master,  it  wtU  be  presur: 
master  did  not  consider  part  oi 
of  a  witness   to  a  proper  qnes: 
not    responsive — Sargent    v.    B"-r 
24.       It    MriU    be    presumed    tt: 
foundation  was  laid  for  an  ans~^ 
ness  as  supporting  the  ruling  r; 
master  before  ■whom  the  ac:.:-"    ' 
Sargent  v.  Burton.  74  Vt.  t4. 


INTERMEDIATE  DECISIONS.  287 

Proceedings  "before  referees  or  auditors. — Findings  of  a  referee/^  approved  by 
the  court  below,"*  or  on  a  compulsory  reference/^  or  of  an  auditor  approved  by  the 
court/*^  or  in  submission  of  issues  at  law  by  consent,®^  will  not  be  disturbed  except  in 
clear  cases.  Findings  of  a  compulsory  statutory  reference  will  be  reviewed  both  as 
to  law  and  facts.®^ 

G.  Rulings  and  decisions  on  intermediate  appeals. — A  lower  court  of  appeal  will 
presume  that  a  case  sent  from  the  higher  court  is  properly  in  its  jurisdiction.®^  A 
question  of  fact  in  a  state  court  is  a  question  of  fact  in  the  supreme  court  of  the 
United  States/"  and  findings  of  fact  in  the  state  court  are  conclusive  in  the  supreme 
court.'^^  The  decision  of  the  Illinois  appellate  court  on  controverted  questions  of 
fact  is  binding  on  the  supreme  court/^  whether  on  appeal  from  the  finding  of  the 


61.  East  Tennessee  Land  Co.  v.  Leeson 
(Mass.)    66   N.   B.    427. 

G2.      Lynch  v.  Eg-an   (Neb.)    93  N.  W.  775. 

63.  Creedon  v.  Patrick  (Neb.)  91  N.  W. 
872;  State  v.  Davis  (Neb.)  92  N.  TV.  740; 
Collins  V.  McGuire,  76  App.  Div.  (N.  Y.)  443; 
Ocorr  &  Rug-g-  Co.  v.  Little  Palls,  77  App. 
Div.  (N.  Y.)  592;  Aronson  v.  Greenberg-,  78 
App.  Div.  (N.  Y.)  639;  Camp  v.  First  Nat. 
Bank  (Fla.)  33  So.  241;  Lancieri  v.  Kansas 
City  L  St.  Sprinkling  Co.,  9o  Mo.  App.  319. 
Question  of  negligence — Dutton  v.  Ames- 
bury  Nat.  Bank,  181  Mass.  154.  Damages 
assessed  by  referee  on  stipulation — Hentz 
v.  Mt.  Vernon,  78  App.  Div.  (N.  Y.)  515. 
Finding  as  to  a  claim  against  an  estate  will 
not  be  reversed  though  the  evidence  ap- 
parently justifies  a  doubt  as  to  its  correct- 
ness because  of  the  superior  advantages  of 
the  referee  in  seeing  and  hearing  the  wit- 
nesses— Hart  V.  Tulte,  75  App.  Div.  (N.  Y.) 
323. 

64.  Branner  v.  Webb,  65  Kan.  857,  68  Pac. 
1107. 

65.  Roth  v.  Continental  Wire  Co.,  94  Mo. 
App.   236. 

66.  In  re  Fague's  Estate,  19  Pa.  Super. 
Ct.   638. 

67.  Alexander  v.  Louisville  &  N.  R.  Co., 
114  Fed.  774;  Rumford  Falls  Boom  Co.  v. 
Rumford  Falls  Paper  Co.,  96  Me.   96. 

68.  Compulsory  reference  under  Rev.  St. 
Mo.  1899,  §  698 — Buxton  v.  Debrecht,  95  Mo. 
App.   599. 

69.  Ortt  V.  Leonhardt  (Mo.  App.)  68  S. 
W.  577;  Bowlby  v.  Kline,  28  Ind.  App.  659; 
State  V.  Ohio,  etc..  Land  Co..  95  Mo.  App.  349. 
As  that  no  constitutional  question  is  present- 
ed— Sneed  v.  Salisbury,  94  Mo.  App.  426; 
Kirkwood  v.  Meramec  Highlands  Co.,  94  Mo. 
App.  637.  Case  was  treated  as  one  of  equita- 
ble nature  and  not  mandamus  which  would 
not  lie — Gowdy  Co.  v.  Patterson,  29  Ind.  App. 
261. 

70.  Finding  of  fact  as  to  w^hat  was  the 
law  of  another  state — Eastern  B.  &  L.  Ass'n 
V.    Ebaugh,    185    U.    S.    114,    46    Law.    Ed.    830. 

71.  Jenkins  v.  NefC,  186  U.  S.  230,  46  Law. 
Ed.  1140.  In  an  equity  suit — Bement  v.  Na- 
tional Harrow  Co.,  186  U.  S.  70.  Though 
the  supreme  court  is  bound  by  agreed  facts 
before  a  state  court  it  may  inquire  whether 
they  support  the  judgment — Kelley  v. 
Rhoads,   188   U.   S.   1. 

72.  Chicago  v.  O'Malley,  196  111.  197; 
Starkweather  v.  Maginnis.  196  111.  274;  Chi- 
cago City  R.  Co.  V.  Fennimore,  199  111.  9; 
Union  El.  R.  Co.  v.  Nixon,  199  111.  235. 
Where  evidence  is  conflicting  and  a  motion 
to  exclude  the  evidence  and   find   for  defend- 


ant is  denied — Chicago  v.  Peck,  196  111.  260. 
Whether  plaintiff  was  a  fellow-servant  with 
others  is  a  question  of  fact — Frost  Mfg.  Co. 
V.  Smith,  197  111.  253.  As  is  also  negligence 
of  street  railway  company  in  action  for  in- 
juries to  passenger — Chicago  City  R.  Co.  v. 
Morse,  197  111.  327.  And  whether  damages 
awarded  are  excessive — Chicago  City  R.  Co. 
V.  Morse,  197  111.  327;  Chicago  City  R.  Co.  v. 
Fennimore,  199  111.  9.  Finding  of  negli- 
gence on  conflicting  evidence  in  action 
against  railroad  company  for  death  of  child 
— Potter  v.  O'Donnell,  199  111.  119.  Under 
Practice  Act,  §  87,  finding  of  no  negligence 
in  action  for  personal  injuries — Weeks  v. 
Chicago  &  N.  W.  R.  Co.,  198  111.  551.  Find- 
ing as  to  assumption  of  risk  by  employe — ■ 
Anthony  Ittner  Brick  Co.  v.  Ashby,  198  111. 
562.  Reversal  by  appellate  court  of  find- 
ings of  trial  court  as  contrary  to  evidence 
and  recital  of  findings  in  judgment — Aachen 
&  M.  Fire  Ins.  Co.  v.  Crawford,  199  111.  367. 
That  a  directed  verdict  is  asked  at  close  of 
all  the  evidence  instead  of  at  close  of  plain- 
tiff's evidence  will  not  change  the  rule  as 
to  review  of  refusal — Chicago  City  R.  Co. 
V.  Martensen,  198  111.  511.  Finding  as  to 
waiver  by  mutual  insurance  society  of  for- 
feiture of  membership — Grand  Lodge  v. 
Lachmann,  199  111.  140.  Question  of  agency 
for  fire  insurance  company — Northern  Assur. 
Co.  v.  Chicago  Mut.  B.  &  L.  Ass'n,  198  111. 
474.  Finding  as  to  knowledge  of  benefit 
association  that  a  member  was  engaged  in 
selling  liquor  and  as  to  waiver  of  by-law 
prohibiting  members  from  such  occupauon 
— Coverdale  v.  Royal  Arcanum,  199  111.  649. 
Excessiveness  of  verdict  is  a  question  of 
fact — Sinclair  Co.  v.  Waddill,  200  111.  17. 
Finding  as  to  waiver  by  insurance  com- 
pany of  condition  forfeiting  policy — Aetna 
Life  Ins.  Co.  v.  Sanford.  200  111. "  126.  A 
finding  as  to  delay  in  performance  of  a  con- 
tract is  substantially  a  finding  of  fact  that 
defendant  was  guilty  of  a  breach  of  the  con- 
tract which  plaintiff  had  not  waived — Iro- 
quois Furnace  Co.  v.  Elphicke,  200  111.  411. 
Discussion  of  former  decision  in  brief  and 
suggestion  that  court  of  its  own  motion 
might  review  it  will  not  avail — Best  v.  Brit- 
ish &  A.  Mortg.  Co.,  131  N.  C.  70.  Whether 
a  member  of  a  benefit  association  was  in 
good  standing  at  time  of  his  death  is  a 
question  of  fact,  and  the  supreme  court  will 
not  consider  effect  of  a  by-law,  whether 
notice  of  assessment  was  given,  or  whether 
default  in  dues  had  been  waived — Hunter  v. 
National  Union,  197  111.  478.  Whether  cer- 
tain property  was  covered  by  chattel  mort- 
gage of  a  corporation  and  whether  the  mort- 


188 


APPEAL  AND  REVIEW. 


trial  court/'  or  of  a  jmy;'*  but  the  facts  so  found  must  be  the  ultimate  facts  a3 
shown  in  the  pleadings.'^  The  rule  applies  to  findings  of  fact  on  appeal  from  the 
appellate  division  of  the  supreme  court  of  Xew  York;'«  though  vrhere  a  verdict 
directed  on  uncontradicted  evidence  is  aflirmed  in  the  appellate  division,  the  court  of 
appeals  may  determine  whether  the  evidence  justified  direction."  A  finding  of  fact 
by  the  court  of  civil  appeals  of  Texas,  supported  by  the  evidence,  is  conclusive  on  the 
supreme  court  though  not  on  the  lower  court  on  retrial.'*  Findings  of  fact  by  the 
court  of  errors  and  appeals  in  Xew  Jersey  will  not  be  reviewed  by  the  supreme 
court.'*  Findings  of  fact  by  the  court  of  chancery  appeals  of  Tennessee  will  not  be 
disturbed  by  the  Supreme  court.*"  Exceptions  to  legal  conclusions  of  a  surrogate  on 
dismissal  of  a  proceeding  will  be  reviewed  by  the  court  of  appeals  on  appeal  from  an 
order  of  affirmance  in  the  appellate  division."  Modification,  by  the  appellate 
division,  of  a  judgment  of  a  special  term  by  striking  out  damages  awarded  one  of  the 
plaintiifs  is  a  reversal,  and  if  the  order  does  not  state  the  grounds  on  which  it  wa^ 
based,  the  court  of  appeals  will  presume  it  was  for  errors  of  law  and  grant  a  new- 
trial."  If  the  appellate  division  did  not  state  that  a  reversal  was  upon  the  facts,  in 
a  case  in  which  the  question  of  the  bar  of  limitations  was  not  settled  by  the  trial 
court,  the  court  of  appeals  will  not  review  that  question."  Where  a  judgment  on  a 
verdict  directed  for  tiie  relator  in  mandamus  in  which  both  parties  ask  direction  of  a 
verdict  has  been  affirmed  by  the  appellate  division  of  Xew  York,  the  court  of  ap- 
peals will  presume  that  the  facts  were  settled  so  as  to  support  the  judgment.**  The 
presence  of  both  questions  of  law  and  fact  in  a  particular  issue  will  not  make  tlie 
findin^y  reviewable.^^  Submission  of  a  proposition,  to  the  cotirt  on  trial,  that  a  chat- 
tel morto-a«:e  was  executed  without  authority,  does  not  render  it  a  proposition  of  law 
reviewable  bv  the  supreme  court  under  a  law  allowing  •'•'written  propositions'"''  to  be 
submitted  on  trial  without  a  jury.®*  If  an  appeal  is  taken  to  the  appellate  court 
of  Illinois,  involving  a  question  of  freehold,  which  that  court  cannot  hear,  appellant 


gage  was  executed  -w-ithout  authority — Gil-  ' 
bert  V.  Sprag^ue.  196  111.  444.  Finding-  as  to 
ass-jmption  of  risk  by  servant  under  con-  i 
trol  of  foreman — Western  Stone  Co.  v.  Mus- 
cial.  196  IlL  SS2.  Whether  loss  to  goods  in 
transit  was  due  to  shipper's  negligence  in 
loading — Elgin.  J.  &  E.  R.  Co.  v.  Bates 
Mach.  Co.,  200  111.  635.  Xegiigence  of 
mother  in  action  for  death  of  child — True 
&  True  Co.  v.  Woda,  201  111.  315.  Finding 
as  to  procuring  release  by  fraud — Indiana, 
D.  <S:  W.  R.  Co.  V.  Fowler.  201  111.  152. 

73.  Jones  v.  Maxton.  197  IlL   248. 

74.  O'Hara  v.  Murphy.  196  111.  599.  In 
action  for  personal  injuries  where  direction 
of  verdict  for  defendant  -was  not  requested 
— Spring  VaL  Coal  Co.  v.  Rowatt,  196  IlL 
156. 

75.  Iroquois  Furnace  Co.  v.  Elphicke.  200 
IlL   411. 

76.  Under  Const,  art.  6.  |  9,  and  Code  Civ. 
Proc.    §   191.   siibd.    4 — ^Archer   v.   Mt.   Vernon. 

171  X.  Y.  6S&;  Rider  v.  Syracuse  R.  T.  R. 
Co.,  171  N'-  Y.  139;  Bank  of  Monongahela 
Valley  v.  Weston.  172  X.  T.  259;  National 
Revere  Bank  %'.   National   Bank  of   Republic, 

172  N.  Y.  102;  In  re  Boerum  St.,  173  N.  T. 
321.  Authority  of  city  to  make  street  re- 
pairs as  dependent  on  evidence  of  damage 
by  frost  is  a  question  of  fact — People  v. 
Featherstonhaugh,  172  N.  T.  112.  If  there 
Is  some  evidence  which  the  jury  believed 
the  court  of  appea!s  will  leave  the  value 
thereof    as    austainingf    the    verdict    to    the 


appellate  division — Merchants'  Nat.  Bank  "t. 
Barnes,  172  N.  T.  61S.  Whether  the  acts 
of  an  owner  of  an  easement  were  reason- 
able, in  building  a  wharf  over  a  basin  con- 
trolled jointly  by  him  and  his  grantee  in 
a  deed  reserving  the  easement,  involves 
o.uestions  of  fact  as  to  circumstances  and 
necessity  for  the  improvement,  and  an  ap- 
peal from  a  reversal  of  the  appellate  di- 
vision in  an  action  to  restrain  the  grantor 
will  be  dismissed — India  Wharf  Bre^n-.  Co. 
V.   Brooklyn  W.   &  W.   Co.,   173  N.   T.   167. 

77.  Second  Nat.  Bank  v.  Weston,  172  N. 
T.   250. 

78.  Hunter  v.  Eastham,  95  Tex.  648. 

79.  Finding  that  location  of  highway  was 
not  induced  by  Improper  offers  to  super- 
•^-isors — Devine  v.  Olney  (N.  J.  Err.  &  App.  • 
53  AtL    455. 


SO. 
752. 

81. 

82. 
504. 

83. 

84. 


Carver   v.    Maxwell    (Tenn.)    71    S.    "W. 


In  re  Killan's  Estate.   172  N.  T.   .5  4 
Van    Siclen    v.    New    York,    172    N. 


Matteson  v.  Falser,   173  N.  Y.   404. 
People  V.   Scannell.   172   N.   Y.   315. 

85.  Finding  as  to  existence  of  waiver  of 
by-laTv  by  benefit  association — Coverdale  v. 
Royal  Arcanum.   199  IlL   649. 

86.  The  law  does  not  permit  exceptions 
as  to  rulings  on  submissions  of  fact  (Prac- 
tice Act,  111.  p.  13S) — Gilbert  v.  Sprague.  196 
m.  444.  See,  also.  High  Court  Ind.  v. 
Schweitzer.   171   111.    325. 


FORMER  DECISIONS. 


189 


<*annot  raise  such  question  on  appeal  to  the  supreme  court.®^  The  appellate  court 
of  Illinois,  in  reversing  a  judgment  and  rendering  one  of  its  own,  must  give  therein 
a  recital  of  the  facts  as  found  as  a  basis  for  review  by  the  supreme  court.**  If  de- 
fendant submitted  no  propositions  of  law  on  trial  and  assigned  no  cross-errors  on 
appeal  by  plaintiff  to  the  appellate  court,  no  questions  of  law  remain  for  his  appeal  to 
the  supreme  court.*^  The  statute  restricting  the  supreme  court  to  questions  of  law 
only,  and  making  findings  of  fact  by  the  appellate  court  conclusive,  does  not  apply 
to  chancery  suits.""  If  the  court  of  civil  appeals  of  Texas  does  not  review  an  error 
assigned  on  a  finding  of  fact  by  the  trial  court,  the  supreme  court  will  hold  the  error 
overruled,  thus  sustaining  the  trial  court.®^  The  finding  of  the  circuit  court  on  hear- 
ing of  a  motion  to  afl&rm  a  justice's  judgment  for  failure  to  give  notice  of  appeal,  on 
conflicting  evidence  as  to  waiver  of  notice,  is  conclusive  on  appeal  to  the  j\Iissouri 
court  of  appeals.^^  A  decision  on  re-examination  as  to  whether  a  Chinaman  is  law- 
fully in  the  country,  made  by  a  federal  commissioner  and  a  judge  of  the  district 
court  on  appeal  from  the  commissioner,  is  conclusive  on  the  supreme  court."^ 

H.  Effect  of  decision  on  former  review  in  same  court. — The  decision  of  an  ap- 
pellate court  is  binding  on  that  court  on  a  subsequent  appeal  or  writ  of  error  in  the 
same  case,^*  where  the  second  appeal  from  a  trial  as  of  right  raises  no  question  that 
could  not  have  been  raised  on  the  first,^^  and  where  the  case,^®  and  the  evidence,  is  in 


87.  Dean  v.  Plane.  195  111.  495. 

88.  Under  Practice  Act.  111.  §  88;  suffi- 
ciency of  finding-  as  to  practice  of  medicine 
or  surgery  without  a  license — People  v. 
Smith,  199  111.  20. 

89.  Aachen  &  M.  Fire  Ins.  Co.  v.  Craw- 
ford, 199  111.  367. 

90.  Prac.  Act,  §  90  (Rev.  St.  p.  1297); 
chancery  proceeding  against  personal  rep- 
resentative of  deceased  partner — Henry  v. 
Caruthers.  196  111.  136. 

91.  Finding  that  contracts  were  procured 
by  fraud — National  Oil  &  Pipe  Line  Co.  v. 
Teel,   95   Tex.   586. 

93.  Pattison  v.  Missouri,  K.  &  T.  R.  Co., 
93  Mo.  A  pp.  643. 

93.  Chin  Bak  Kan  v.  United  States,  186 
U.   S.   193;    Chin   Ting  v.   Same,   186  U.   S.    202. 

94.  Payette  &  Ferrier  (Wash.)  71  Pac. 
546;  Commercial  State  Bank  v.  Ketcham 
(Neb.)  92  N.  W.  998;  Stager  v.  Troy  Laun- 
dry Co..  41  Or.  141,  68  Pac.  405;  Sisk  v. 
Joyce  (Tex.  Civ.  App.)  68  S.  W.  50;  Bran- 
ner  v.  Webb,  65  Kan.  857,  68  Pac.  1107;  Ben- 
ton County  Sav.  Bank  v.  Boddicker  (Iowa), 
90  N.  W.  822;  State  v.  O'Neil  Lum.ber  Co.  (Mo.) 
70  S.  W.  121.  The  remedy,  if  any,  is  by  pe- 
tition to  rehear — Holley  v.  Smith  (N.  C.)  43  S. 
E.  501;  allowance  of  interest  on  accounting — 
Anderson  v.  Northrop  (Fla.)  33  So.  419;  North- 
rop v.  Anderson,  Id.  Decision  of  particular 
question  directly  before  the  court — Jones  v. 
Wilmington  &  W.  R.  Co.  (N.  C.)  42  S.  E. 
559.  Former  appeal  on  foreign  judgment 
for  alimony  held  to  be  final  and  enforceable 
— Arrington  v.  Arrington,  131  N.  C.  143. 
Acts  of  trial  court  approved  by  Implication 
on  the  first  appeal  will  not  be  reviewed — 
Olsen  V.  North  Pac.  Lumber  Co.  (C.  C.  A.) 
119  Fed.  77.  Right  of  defendant  corpora- 
tion to  purchase  claims  against  a  third 
party  from  plaintiff — INIahoney  v.  Butte 
Hardware  Co.  (Mont.)  71  Pac.  674.  Con- 
struction of  writings  between  the  parties — 
Weigley  v.  Kneeland,  172  N.  T.  625.  Af- 
firmance of  judgment  taxing  costs — In  re 
Jerome    Ave.     (N.    T.)     78     App.     Div.     631; 


Hawes  v.  Hynes,  Id.  Appeal  from  judg- 
ment for  plaintiff  in  action  for  personal 
injuries — Leeds  v.  New  York  Tel.  Co.  (N.  Y.) 
79  App.  Div.  121.  Right  of  plaintiff  to 
recover  for  wrongful  restraint  of  property 
by  attachment — Farmers'  &  Shippers'  To- 
bacco Warehouse  Co.  v.  Gibbons,  24  Ky.  Law 
Rep.  1670.  Decision  that  mortgagee,  after 
foreclosure,  may  bring  an  action  for  tres- 
pass before  maturity  of  mortgage — Girard 
Life  Ins.,  Annuity  &  Trust  Co.  v.  Man- 
gold, 94  Mo.  App.  125.  Rulings  as  to  suffi- 
ciency of  evidence  to  carry  issues  to  the 
jury — Southern  Mut.  Ins.  Co.  v.  Hudson,  ;15 
Ga.  638.  Though  an  amended  complaint  was 
filed  after  the  complaint  was  held  sufficient 
on  demurrer  by  the  appellate  court,  where 
it  differed  only  as  to  parties  included — 
Mississinewa  Min.  Co.  v.  Andrews,  28  Ind. 
App.  496.  Offer  of  proof  omitted  on  former 
trial  which  was  not  prejudicial  to  the  other 
party  will  not  change  the  law  of  the  case — 
Lawson  v.  Spencer,  90  Mo.  App.  514.  That 
plaintiff  withdrew  all  objection  to  incom- 
petent evidence  will  not  entitle  defendant 
to  have  it  considered  by  the  appellate  court 
so  as  to  change  its  decision  previously 
made — Standard  Sewing  Mach.  Co.  v.  Leslie 
(C.  C.  A.)  118  Fed.  557;  Tidball's  Ex'rs  v. 
Shenandoah  Nat.  Bank  (Va.)  42  S.  E.  867; 
decision  that  evidence  on  a  particular  issue 
warranted  submission  to  the  jury — Wun- 
derlich  v.  Palatine  Ins.  Co.  (Wis.)  92  N.  W. 
264.  Where  defendant,  in  a  writ  of  error 
to  review  a  judgment  entered  on  affirmance 
in  the  appellate  court  of  a  verdict  directed 
for  plaintiff,  gave  no  evidence  except  T%'hat 
he  had  introduced  on  the  first  trial,  which 
was  held  incompetent,  the  giving  or  refusal 
of  instructions  will  not  be  reviewed — Stand- 
ard Sewing  Mach.  Co.  v.  Leslie  (C.  C.  A.) 
118   Fed.   557. 

95.  Bradley  v.  Lightcap.  201  111.  511;  ob- 
jection to  appointment  of  receiver  which 
might  have  been  made  on  the  first  trial — ■ 
Clark  V.   Brown    (C.   C.   A.)    119   Fed.    130. 

96.  Burke  v.  Ledsinger,  115  Ga.  195;  Mld- 
deke  v.  Balder,  98  111.  App.  525. 


1% 


APPEAL  AND  REVIEW. 


legal  effect,  the  same/'  but  only  as  to  questions  necessarily  involved  and  such  as 
where  presented  and  expressly  or  impliedly  decided.^^  Questions  wliich  might  have 
been  but  were  not  determined  on  the  first  appeal  are  not  settled.^^  If  on  second  trial, 
after  reversal,  new  material  evidence  is  given,  the  decision  on  the  appeal  as  to 
matters  concerning  the  finding  is  not  conclusive  on  a  second  appeal,^  except  as  to 
questions  of  law."  Where  a  cause  is  reversed  and  remanded  generally,  the  assump- 
tion of  a  certain  fact  by  the  appeal  court  "\rill  not  preclude  determination  of  its  ex- 
istence on  a  second  appeal,  the  record  of  which  brings  up  additional  evidence.^  On 
appeal  from  an  order  rendered  in  an  action  on  a  judgment,  questions  raised  by  spe- 
cial answers  in  such  action  but  determined  on  appeal  from  the  judgment  will  not  be 
considered.*  As  to  matters  not  considered  by  the  higher  appellate  court  on  appeal 
from  an  intermediate  court,  the  decision  of  the  lower  court  remains  the  law  of  the 
case.^  A  second  judgment  like  the  first  will  not  be  reversed  also  for  insuflBciency  of 
evidence  where,  on  retrial,  the  evidence  in  support  is  strengthened.®  A  reversal  on  a 
former  appeal  by  part  of  defendants  from  a  judgment  against  all  will  not  disturb  the 
judgment  against  those  not  appealing.'  "Where  an  order  granting  a  new  trial  was 
reversed  as  given  on  erroneous  ground  and  the  court  refused  to  consider  other 
grounds  assigned,  such  questions  may  be  considered  on  an  appeal  from  the  judgment 
afterward  entered.*  A  ruling  on  a  first  appeal  that  a  petition  states  a  cause  of  ac- 
tion so  as  to  admit  evidence  supporting  it  over  an  oral  objection  will  be  conclusive 
on  a  second  appeal  where  on  the  second  trial  defendant  neither  demurred  nor  moved 
for  more  definite  averments  but  urged  his  former  objection.'  Affirmance  of  a  judg- 
ment deming  a  preliminary  injunction  depending  solely  on  questions  of  law  con- 
cludes plaintiff  as  to  such  questions  raised  in  his  assignments  of  error  though  not  all 
are  expressly  referred  to  in  the  opinion  or  s^-nopsis.^"  Appeal  from  a  decree  entered 
in  pursuance  of  a  mandate  of  the  United  States  supreme  court  brings  up  only  the 
question  whether  the  decree  properly  followed  the  mandate.^^ 

§  14,  Provisional,  ancillary,  and  interlocutory  relief. — It  is  inherent  in  the  ap- 
pellate court  to  protect  the  subject-matter  in  statu  quo  pending  an  appeal.^^  If  the 
appellate  court  be  given  authority  to  issue  writs  in  aid  of  its  jurisdiction,  it  can 
preserve  the  subject  of  litigation  by  injunction  and  the  trial  court  has  no  power 
whatever,^^  but  in  some  states  the  lower  court  may  do  so.^*  The  circuit  court  of  ap* 
peals  cannot  issue  writs  of  prohibition  in  protection  of  its  appellate  jurisdiction  not 
yet  invoked. ^^     When  an  intermediate  court  acting  only  for  the  protection  of  its 


97.  Travers  v.  McElvain,  200  111.  377.  Ap- 
peal from  non-suit  in  action  for  personal 
Injuries  because  of  contributory  negligence 
— Copeland  v.  Metropolitan  St.  R.  Co.  (N.  T.) 
78  .\pp.  Div.  418. 

98.  Herriman  Irr.  Co.  v.  Keel,  25  Utah,  96, 
69  Pac.  719. 

99.  Wine  v.  Woods.  15S  Ind.   388. 

1.  Herriman  Irr.  Co.  v.  Keel,  25  Utah,  96. 
69  Pac.  719. 

2.  State  V.  Paxton  (Neb.)  90  N.  W.  983; 
Brown  v.   State,  Id. 

3.  Lang  v.  Metzger.  101  111.  App.  380. 
A  statement  on  the  first  appeal  that  tax 
deeds  of  another  state  were  presumptive 
evidence  of  title  and  regularity  of  the  pro- 
ceedings will  not  prevent  determination  of 
their  invalidity  on  the  second  appeal  for 
failure  to  name  the  state  as  grantor — Wine 
V.  Woods.  158  Ind.  388. 

4.  Salem-Bedford  Stone  Co.  v.  Hobbs,  28 
Ind.  App.   520. 

6.  Mutual  Life  Ins.  Co.  v.  Hill  (C.  C.  A.) 
118  Fed.  708. 

6.     Though  plaintiff's  evidence  on  the  first 


trial  was  so  Impeached  as  to  render  reversal 
of  a  judgment  in  his  favor  necessary,  a 
second  judgment  for  him  -will  not  be  dis- 
turbed vrhere  on  the  second  trial  his  evi- 
dence w^as  so  corroborated  as  to  render  its 
falsity  uncertain — Wunderlich  v.  Palatine 
Ins.   Co.    (Wis.)    92  N.   W.   264. 

7.  A  writ  of  error  by  plaintiffs  against 
defendants  not  appealing  will  not  be  dis- 
missed— Williams  v.  Wilev  (Tex.)  71  S.  W. 
12. 

8.  Gray  v.  Washington  Water  Power  Co., 
30  Wash.  155,  70  Pac.  255. 

9.  Marshall  v.  Ferguson,  94  Mo.  App.  175 

10.  Savannah.  T.  &  I.  H.  R.  Co.  v.  Savan- 
nah, 115  Ga.  137. 

11.  United  States  v.  Camou,   184  U.  S.   572. 

12.  Finlen  v.  Heinze    (Mont.)    69   Pac.   829. 

13.  Finlen  v.   Heinze    (Mont.)    69  Pac.   829. 

14.  Injunction  will  issue  from  the  lower 
court  to  protect  the  property  pending  ap- 
peal under  Civil  Code  1887,  §  144 — Ajax  G. 
M.  Co.  v.  Triumph  G.  M.  Co.  (Colo.)  69  Pac 
523. 

15.  In  re  Paquet   (C.  C.  A.)   114  Fed.   437. 


DECISION  AND  DETERMINATION. 


191 


own  jurisdiction  continues  a  temporary  restraining  order  issued  by  the  lower  court, 
such  continuation  ceases  with  the  suing  out  of  a  writ  of  error  to  the  highest  court.^* 
Before  resorting  to  mandamus  to  compel  a  clerk  to  approve  a  supersedeas  bond,  the 
statutory  remedy  by  motion  should  be  tried.^^  The  trial  court  during  term  may  of 
its  own  motion  revive  an  action  where  appellant  dies  after  a  short  transcript,  but 
before  the  bill  of  exceptions  is  filed. ^^ 

Since  appealing  from  dissolution  of  an  injunction  does  not  continue  it  in  force, 
an  appeal  may  proceed  after  dissolution  of  a  ooiintcr  injunction  against  further  pro- 
ceedings and  an  appeal  from  the  dissolution.^" 

Stay  of  appeal. — An  appeal  of  a  collateral  judgment  will  be  stayed  until  de- 
cision of  an  appeal  from  another  judgment  on  which  the  first  depends.^"  If  a 
party  has  taken  proper  steps  to  procure  the  making  of  an  order,  and  has  in  good 
faith  appealed,  proceedings  may  be  stayed  on  the  appeal  until  an  order  can  be 
formally  made  on  the  motion  appealed  from.-^ 

§  15.  Decision  and  determination.  A.  Affirmance  or  reversal. — Errors  which 
do  not  prejudice  appellant  or  are  not  substantial  do  not  warrant  a  reversal,-^  but  if 
error  of  law  be  prejudicial,  a  reversal  follows  though  the  court  believes  that  the  cor- 
rect result  on  the  evidence  has  been  reached.^^  In  some  states  however  it  is  suincient 
that  a  correct  result  is  reached  regardless  of  error.^*  If  the  case  is  decided  below 
upon  a  certain  theory  of  law,  it  may  be  affirmed  on  the  correct  theory.-^  The  de- 
cisions upon  the  harmlessness  or  materiality  of  errors  will  be  collected  in  a  future 
article,  which  see.^®  Where  mistake  in  the  amount  is  offset  by  others  in  the  appel- 
lant's favor,  it  is  ignored,^'^  nor  will  reversal  be  made  to  permit  recovery  of  nominal 
damages  solely.^* 

Affirmance  or  reversal  should  be  on  the  facts  in  the  record.^*  Affirmance  may  be 
with  leave  to  apply  for  appropriate  relief  below  when  reversal  cannot  be  made  be- 


16.  Riggins  v.  Thompson  (Tex.)  71  S.  W. 
14. 

17.  Code  Civ.  Pr.  §  889 — State  v.  House- 
worth,  63  Neb.  658. 

18.  Crawford  v.  C,  R.  I.  &  P.  R.  Co. 
(Mo.)    66  S.  W.  350. 

19.  Mauldin  v.   Greenville,   64   S.  C.  444. 

20.  Prellsen  v.  Strader  Cypress  Co.,  108 
La.   61. 

21.  A  motion  to  set  aside  a  judgment 
and  re-assess  damages  had  been  consoli- 
dated with  a  mandamus  proceeding  to  com- 
pel payment,  and  mandamus  was  granted 
but  no  order  made  on  the  motion — People 
V.  Holdredge  (N.  T.)  75  App.  Div.  622.  Pro- 
ceeding on  appeal  was  stayed  to  enable 
party  to  procure  formal  entry  of  order  be- 
low— People  V.  Holdredge  (N.  Y.)  75  App. 
Div.   622. 

22.  City  of  South  Omaha  v.  Meyers  (Neb.) 
92  N.  W.  743;  Sibley  Warehouse  &  S.  Co.  v. 
Durand  &  K.  Co.,  102  111.  App.  406;  Edmons- 
ton  V.  Jones  (Mo.  App.)  69  S.  W.  741;  Vin- 
son V.  Scott,  198  111.  542;  Linam  v.  Jones,  134 
Ala.  570;  Moore  v.  Ortgier,  103  111.  App.  579; 
Kalina  v.  Steinmeyer,  103  111.  App.  502;  Kerr 
v.  O'Keefe.  138  Cal.  415,  71  Pac.  447;  Han- 
num  V.  Hill,  52  "W.  Va.  166;  Gray  v.  "Wash- 
ington W.P.  Co.,  30  Wash.  665;  Swanson 
V.  Keokuk  &  W.  R.  Co.,  116  Iowa,  304;  Suc- 
cession of  Hewitt,  107  La.  446;  Boston  Sav. 
Bank  v.  Bradford,  181  Mass.  199;  Goodwin 
V.  Goodwin  (N.  Y)  72  App.  Div.  529;  Chi- 
cago V.  Le  Moyne  (C.  C.  A.)  119  Fed.  662. 
Errors  affecting  issues  decided  favorably  to 
appellant  not  ground  to  reverse — Hartman 
V.   Warner    (Conn.)    62   Atl.    719.      Erroneous 


charge  was  disregarded — Erickson  v.  Kan- 
sas City,  O.  &  S.  R.  Co.  (Mo.)  71  S.  W.  1022. 
Failure  to  allow  nominal  damages — Willets 
V.  Ida  County  Sav.  Bank  (Iowa)  90  N.  W. 
729.  See  many  cases  in  Harmless  Error. 
Erroneous  instruction  as  to  damages  for 
delay  in  paying  for  injury  to  land,  but  ver- 
dict only  slightly  exceeded  lowest  estimate 
and  there  was  nine  years  delay — Provident 
L.  &  T.  Co.  v.  Philadelphia,  202  Pa.  78.  A 
wife  cannot  complain  that  the  former  al- 
lowance was  excessive — Wagner  v.  Wagner 
(Mich.)   93  N.  W.  889. 

23.  McNicol  v.  Collins,  30  Wash.  318.  70 
Pac.  753.  So  in  Illinois  appellate  courts — 
Irwin  V.  N.  W.  Nat.  Life  Ins.  Co.,  200  111.  577. 

24.  So  by  statute — Germania  Fire  Ins.  Co. 
V.  Pitcher  (Ind.)  64  N.  B.  921;  Cox  v.  Peltier 
(Ind.)  65  N.  E.  6;  McCardle  v.  Aultman  Co. 
(Ind.  App.)  66  N.  E.  507;  Jackson  v.  Helmer 
(N.  Y.)  73  App.  Div.  134.  Defective  plead- 
ings— Willoughby  v.  Long  (Tex.  Civ.  App.) 
69  S.  W.  646. 

25.  If  questions  of  law  alone  are  in- 
volved, the  rule  will  be  applied  though  all 
parties  have  not  appealed — Sheafer  v.  Mitch- 
ell (Tenn.)   71  S.  W.  86. 

26.  Harmless  Error. 

27.  Mayer  v.  Nethersole  (N.  Y.)  71  App. 
Div.   383. 

28.  Hofferberth  v.  Myers  (N.  Y.)  71  App. 
Div.  377.  Costs  or  other  right  must  be  in- 
volved— School  Dist.  V.  Burress  (Neb.)  89 
N.  W.  609. 

29.  Smith  v.  Hooper,  95  Md.  16;  Reese  v. 
Damato  (Fla.)  33  So.  462. 


192 


APPEAL  AND  REVIEW. 


cause  latdj  dcrdoped  oonditioiis 
will  be  made  despite  error  ariii:; 
would  make  any  other  ded?:  z.  "^ 
law  on  which  a  jndgmcnt  Tt  :- 
fixed  or  Tested.**    If  a  hig   :: 
bar  is  based,  a  reversal  in  i..  - 
verdict  of  the  jury  in  the  n:  : 
dence  catified,  proceeding; 
error  is  diseoTered  in  sett::  - 
set  aside.**    A  decision  mE7 
ed,  acceptance  of  one  neces  ?  :      = 

When  a  party  has  com: 
cisibn  may  be  made  withou:  :  :::f ; 
dispnte.** 

An  eqoal  division  ::  ?      ~r 
a  compile  decision  i; 
Where  a  judgment  is  : 
bin  of  exceptions. 

Beversal  or  a±.: :: 
able;,**  but  a  wronr  ; .: 
letting  it  stand  aga:::-"    :     :-  ~ 
left  80  standing.**     1.  i  :     f    ::: 
judgment  does  not    r    : 
the  amended  one  in  order  lo  cleir 


or  defenses  are  not  in  the  record.**     Affirmance 

:  an  appellant  whose  failure  to  bring  in  a  party 

ng  as  to  other  appeUees.*^     The  changing  of  the 

:::t  require  a  reversal  if  no  rights  have  become 

::  :;-erses  a  decision  on  ■vrhich  the  judgment  at 

-      -  —-i  follow;**  thus  after  two  trials  and  the 

^  aside  below,  exceptions  taken  and  evi- 

:     _  :     r,  ""  f  f^r?:  :r::'  will  be  examined;  and,  if 

:       -    :'  r    -\\  ~  :::  ^■f-qnent  proceedings  will  be 

;      _  'z  inconsistent  reliefs  be  grant- 

-"-  :-er.»* 

1  :  in  proceeding  a  pro  forma  de- 
:   r  :   :      ;    '  -     when  there  is  no  real 


~:-  :r    ■:es  an  affirmance.**     When 

':"g.  others  will  be  dismissed.*" 

:"  onestions  made  in  the  cross 

-     -  ' :      ;  ~::  foiiow.*i 

:  :;  : :::;  :  :„e  decree  are  sever- 
:':"::  :t  :::e  appealing  defendant 
-  :."  ;'  T  -:fr.  reversed  as  to  one,  it  is 
'"-'  :.-:.  fr "Arable,  a  decision  on  one 
;  "idgment  may  be  reversed  with 
"uen  an  order  denying  the  right  to 


atL  A330t]her  judgment  introduced  in  evi- 
dence as  res  adjadicata  was  later  reversr-d 
— ^Reese  v.  Itemato  CFla.)  33  Sr    4-:: 

31.  Priorities  iroiald  have  :  e  r  f  r  .  r  r  t  i 
— HaU  V.  Xew  Tork  (ST.  Y.)  7.-  a    :    : 

as.     loiw  respecttns  discorr  t  ; : 
ritory    from    city    limits    "wa  = 
repealed  after  affirmance  in    i      ;-: 
of    appeal    and    affirmance    ~;  ?     rf    -7-^: — 
Borchett  v.   People.   197   in.   i.^.      -£c.s.:iis 
foUoired      had      been      overruled — American 
Soear  Sef.   Ool  v.   New   Orleans    (C.   C.   A.) 
119  Fed.  C91. 

33.  MacFarland  ▼.  Byrnes.  19  App.  I>.  C 
531. 

3^  Wood  ▼.  American  Xat.  Bank.  4  '  ^ 
Sop.  Ct.  RepL  133.  40  S.  S.  931. 

35.     State  ▼.  Schwartz  F"dry  Oo,   1 .      '_ 
SS. 

3CL    Jodement     for     specific     perf or—    - 
and    also    damages    for    breach — Hosk^::  ~ 
Dongfaerty  (Tex.  CSv.  App.)  «9  S.  tt    : 

37.     Power  v.    Stocking.    SS   Mc  r 
Pac   857;   Barnes*   Estate   v.   Anjrr       :     Zr  : 
Oo.  (Mo.}  7§  S.  \<r.  512;  Pavey  v.   ? 
UL    App-    589.      It    is    not    giTen     ::     :  _      — 
Davis  ▼.   Hnber  Mfs-  Co-    (I— " 
78;   Alexander  v.   'Wilson    (2: 
W.    COS.      AppellaBt    i:  5  : :  r. : ; 
no  other  appeal — 7 
S9  Pajc  371.     Hear 
canse  of  defects  i- 
ing.   S«  Mont.  47S, 
of  defendant  to  £~.  t 

R  reversal  and  a  pr-:  -      ;  r^L  agiJiX-si 

cefendant — Pavey  "    f  "/-.  Ap-p.  5S5. 

Strikumg  briefs  doe;  ^    -.._,. 

party  to  cle-cision — : 
tlowa)  93  X.  \r.  7< 


4'.         _   T 

::;:on 

: ;   Ga. 

41.    :-:. 

r-eU 

-    -      -.-      yr  r 

r-ell. 

•42 .    :^'  T 

^     Ca 

Waier    : 

:  r  r 

Tract! : . 

7  - 

Jc:r: 

38.     Reversal  made  because  of  absence  of 

ary    real     d:sp"Jie    upon     merits — ilatter    of 
7"r-r:?     X.  T.)    74  App.  Dir.   519. 

3;'.      Chicago.  B.  &  Q.  R.  Co.  v.  Camper,  100 


on    cross-error — ^Harwell    v. 
155. 

V.  Martin.  115  Ga.  156;  Mar- 
Id. 

che    La    Potidre    Irr.    Co.    ▼. 

"::o.  469.  6S  Pac  781;  Chicago 

Stanford.    104    UL    App.    99. 

-    : :  rt   erroneous   as   to  one 

4      -TVis.)    92  N.  W.   1105. 

:  :r.:5    to    cancel    a    release 

tj    ::-    : -'ury   is    severable — 

-ri.    L4    :    Co..    ?5    Mo.    App. 

V.   Codes  N.  D.  I  5530,  provid- 

preme  court  must  nnaily  dis- 

se    uuless    a    uei^    trial   is   or- 

:    V.    Zr:::;=    >  N.  D.)    90  X.   W. 

'-'":  "       "L   App.  Div.  614. 

r.    ".   Stebbins.   15 

■"=-   reversed 

4::4er    iudg- 

-         ?;  — rson 

:        :    re- 

:r.;  :  _:      ;"       ^.  -     :  :'     ".;;-h    it 

■i  I  ii      T.      X^nOikuc.       lj.4      *\.       i. 


-  .    General    Fire    Ex.    Co.    (X. 

■       .. y        7  .v.    624.      Stunmary    judgment 

r  .  -;:    =74::     :n    forcible    entry    case    may 

>e     reversed     leaving     judgment     stand     as 

'H^inst    principal — Hadley    v.    Bemero    (Mo. 

—    J    \^'.  451. 

:  :         corrected     the     other — State     T. 
:   Wash.  €43.  71  Pac.  196. 


REMAND   ON   FINAL   DETERMINATION. 


193 


become  a  party  is  affirmed,  a  reversal  should  be  entered  of  an  order  for  a  stay  until 
decision.*® 

B.  Transfers  and  removals,  and  certifications  or  reservations. — In  Indiana  a 
cause  will  be  sent  to  the  highest  court  when  there  is  one  disqualified  judge  of  the 
intermediate  court  and  a  division  of  the  others.*^  Decision  may  be  withheld  until 
determination  of  other  controlling  causes.^"  The  circuit  court  of  appeals  may  certify 
a  treaty  question  reserving  decision  on  other  questions  presented,  or  may  decide 
without  passing  on  such  question, ^^ 

C.  Remand  or  final  determination. — There  can  be  no  original  adjudication  but 
only  review.^^  A  judgment  for  plaintiff  in  an  action  which  clearly  in  point  of  law 
will  not  lie  must  be  reversed.^^  Final  determination  may  be  given  if  nothing  re- 
mains to  be  decided  by  a  retrial,^*  as  when  the  sole  contention  is  a  matter  of  law,"^* 
or  if  no  different  or  more  favorable  result  can  be  reached  on  a  new  trial,^"  or  if  a 
defect  of  pleadings,^'^  or  deficiency  of  proof  appears  which  cannot  be  supplied,'*  or  if 
there  be  a  defect  which  is  unsubstantial  or  is  capable  of  correction  by  the  appellate 
court.^^  It  may  be  done  where  the  appeal  is  so  taken  that  all  doubtful  questions  are 
concluded.^"  Certain  classes  of  cases  are  excepted  from  these  rules.*^  The  court 
will  finally  dismiss  as  against  an  appellant  whose  pleadings  show  no  cause  of  action."^ 
Eemand  will  not  be  made  if  the  case  turns  on  a  point  of  the  legal  sufficiency  of  the 
evidence  to  make  a  prima  facie  case.®^  When  a  primary  court  decrees  a  new  trial, 
but,  lest  a  further  appeal  be  taken,  makes  findings  of  fact,  it  is  proper  for  it  to  rest 
there  without  entering  final  judgment.®* 

If  any  material  fact  or  right  is  in  doubt,®^  or  there  be  a  defect  in  procedure  or 


48.  Matter  of  Parsons,  73  App.  Dlv.  (N. 
Y.)   622. 

49.  By  virtue  of  statute — Seller  v.  State 
(Ind.  App.)    64  N.  E.   101. 

50.  Collateral  rights  in  litigation — Frell- 
son  V.  Stracler  Cypress  Co.,   108  T^a.  61. 

51.  U.  S.  V.  Lee  Yen  Tai  (C.  C.  A.)  113 
Fed.   465. 

52.  Jurisdiction  on  appeal  from  settle- 
ment of  guardian's  account  in  probate  court 
is  purely  appellate,  excluding  matters  of 
original  jurisdiction — Magness  v.  Berry 
(Tex.  Civ.  App.)  69  S.  W.  987.  Matters  on 
provisional  accountinf:  incapable  of  adjudi- 
cation will  be  left  for  a  future  accounting — 
Succession  of  Willis  (La.)   33  So.  314. 

53.  Kelly  v.  Strouse  (Ga.)   43  S.  E.  280. 

54.  Good  v.  Lasher,  99  111.  App.  653;  Laza- 
rus V.  Rosenberg  (N.  Y.)  70  App.  Dlv.  105. 
Appellate  division  may,  under  Code  Civ.  Pr. 
§§  626,  1348,  dissolve  ex  parte  injunction  on 
appeal  from  refusal  of  special  term  to  do 
so — Marty  v.  Marty  (N.  Y.)  66  App.  Div.  527. 
Error  in  assessing  too  great  a  proportion  of 
costs  of  local  improvements  against  abutter, 
requires  reversal,  although  the  city  does  not 
complain  of  the  portion  assessed  against 
it — Kreiger  v.  Gosnell,  24  Ky.  Law  Rep. 
1095. 

55.  On  review  of  a  mandamus  to  an  offi- 
cer, the  sole  issue  was  on  a  law  question 
of  all  his  powers — State  v.  Police  Com'rs 
(Mo.)    71  S.  W.   215. 

56.  City  of  Chicago  v.  Jackson,  196  111. 
496;  Bedford  Quarries  Co.  v.  Thomas,  29  Ind. 
App.   89. 

57.  Glover  v.  Clark,  100  111.  App.  176.  In- 
junctional  order  granted  on  bill  showing 
no  equity  was  Anally  dismissed — Worth  Mfg. 
Co.  V.  Bingham   (C.  C.  A.)    116  Fed.   785. 

58.  City  of  Galveston  v.  Brown  (Tex.  Civ. 
App.)   67  S.  W.  156. 

Cur.  Law — 13. 


59.  Under  a  provision  requiring  a  de- 
cision according  to  substantial  justice  re- 
gardless of  technical  errors,  judgment  may 
be  given  without  remanding  to  amend  con- 
formably to  proof — Jackson  v.  Helmer  (N. 
Y.)    73  App.  Div.  134. 

60.  Action  in  Louisiana  for  killing  sheep 
was  appealed  to  supreme  court  which  could 
not  consider  any  but  constitutional  questions 
— Rausch   V.    Barrere    (La.)    33    So.    602. 

61.  Election  contest  will  be  remanded, 
though  all  necessary  evidence  is  up — Pat- 
terson V.  Hanley,  136  Cal.  ?S5,  68  Pac.  821, 
reluctantly  following  precedents. 

62.  lodence  v.  Peters  (Neb.)  89  N.  W. 
1041. 

63.  Richardson  v.  Moffit-West  Co.  (Mo. 
App.)  69  S.  W.  398.  Entire  failure  to  fix 
liability  on  defendant — Wells,  Fargo  Ex- 
press V.  Waltes  (Tex.  Civ.  App.)  69  S.  W. 
450.  Under  N.  Y.  practice  if  a  motion  to 
dismiss  be  reserved  until  after  general  ver- 
dict, an  appeal  from  dismissal  takes  up  the 
verdict,  and  judgment  may  be  given  (Code 
Civ.  Pr.  §  1187) — Niemoller  v.  Duncombe 
(N.  Y.)    59  App.  Div.   614. 

64.  Traughber  v.   Smelser,   108   Tenn.    347. 

65.  Hurst  V.  Benson  (Tex.  Civ.  App.)  71 
S.  W.  417;  Low  v.  Moore  (Tex.  Cly.  App.)  72 
S.  W.  421.  Two  women  claiming  as  widows 
damages  for  death  by  wrongful  act — Albi- 
nest  V.  Yazoo  &  M.  V.  R.  Co.,  107  La.  133. 
Decree  refusing  foreclosure  reversed  re- 
gardless of  fact  that  separate  judgment  on 
note  had  been  reversed — Cooper  v.  Hay- 
thorn  (Kan.)  71  Pac.  277.  Reversal  in  man- 
damus case  Is  necessitated  if  findings  are 
not  returned  by  the  trial  judge  as  required 
— People  V.  Dalton  (N.  Y.)  77  App.  Div.  499. 
Divorce  case  remanded  to  adjudicate  prop- 
erty rights — McAllister  v.  McAllister,  28 
Wash.    613,    69    Pac.    119.      Judgment    of   ac- 


194 


APPEAL  AND  REVIEW. 


proof  which  ma)'  be  amended/*  or  if  there  be  evidence  tending  to  make  a  case  or  de- 
fense though  the  weight  be  against  it,  a  remand  for  new  trial  is  necessary.*''  It  will 
not  be  denied  because  a  different  result  is  improbable.*®  Eemand  will  be  made  to  a 
lower  court  of  review  which  failed  to  pass  on  a  material  point/^  or  where  the  trial 
court  was  not  asked  to  correct  error.'" 

Judgment  may  be  modified  if  everAiliing  necessary  to  advise  the  court  in  so 
doing  is  before  it,  or  the  fact  is  admitted  ;'^  otherwise  it  must  be  afl&rmed  or  reversed 
and  the  changes  made  by  the  trial  court.'^^  Errors  of  computation"^  or  clerical  errors 
may  be  corrected/*  and  excessive  or  erroneous  amounts  may  be  reduced/'*  but  relief 
against  subsequent  conditions  requires  the  exercise  of  original  jurisdiction. '''  Im- 
proper costs  may  be  stricken  out  or  a  ij^ew  judgment  given  which  eliminates  them.'^^ 
It  cannot  be  modified  in  favor  of  a  party  not  appealing.''* 

Remand  with  directions. — If  to  sustain  jurisdiction  the  action  must  necessarily 
be  regarded  one  of  tort  and  hence  abatable  by  death,  death  of  defendant  pending  ap- 
peal will  necessitate  a  remand  with  direction  to  abate  the  action.''^  If  the  record  of 
an  intermediate  court  of  appeal  shows  that  it  had  no  jurisdiction  of  the  case,  the 
case  may  be  remanded  to  such  court  for  it  to  dismiss  the  appeal.**  Where  much 
time  has  elapsed,  a  new  trial  should  be  given  rather  than  send  back  the  cause  for  find- 


counting  reversed  as  to  one  item  may  be 
remanded  for  finding  on  that  alone — James  v. 
U'est  (Ohio)  65  N.  E.  156.  Allowance  to 
executors  for  extraordinary  services  cannot 
be  apportioned  in  the  absence  of  facts — 
Glover  v.   Check,   24  Ky.  Law  Rep.   1783. 

66.  A  faulty  amended  complaint  was  used 
though  the  original  one  was  good — Brag- 
gins  V.  Holekamp  (Tex.  Civ.  App.)  68  S.  W. 
57.  Lack  of  proof  of  due  passage  of  an  or- 
dinance— Puchen  v.  Jennings,  107  La.  413. 
Remanded  with  leave  to  amend  to  conform 
to  proofs  made — Denver  &  R.  G.  R.  Co.  v. 
Buffehr  (Colo.)  69  Pac.  582.  In  an  equi- 
table cause  defendant  withheld  evidence  be- 
cause some  of  plaintiff's  evidence  was  ex- 
cluded— Robson  V.  Hamilton,  41  Or.  239.  69 
Pac.  651.  Where  pleadings  were  defective 
but  had  been  treated  as  good,  and  judgment 
was  given  without  proof  of  a  material  fact 
the  cause  was  remanded — Eaton  v.  Tod 
(Tex.  Civ.  App.)  68  S.  W.  546;  Succession  of 
Emonot  (La.)  33  So.  368.  Want  of  evidence 
due  to  error  of  exclusion — Wall  v.  Dimmitt, 
24  Ky.  Law  Rep.  1749;  Santaquin  Min.  Co.  v. 
High  Roller  Min.  Co.  (Utah)  71  Pac.  77. 
As  on  reversing  judgment  of  abatement 
where  there  had  also  been  a  demurrer  to 
complaint — Hayden  v.  Kirby  (Tex.  Civ.  App.) 
72  S.  W.  198. 

67.  Chicago  City  R.  Co.  v.  Maloney,  99  111. 
App.  623;  Gordon  v.  Hall  (Tex.  Civ.  App.) 
69  S.  W.  219.  Judgment  formerly  set  aside 
in  trial  court  not  entered  in  lieu  of  that  ap- 
pealed— E.  H.  Taylor  v.  Warehouse  Co.,  24 
Ky.  Law  Rep.  1656. 

CS.  Sherman  v.  Ludin  (N.  T.)  79  App. 
Div.   614. 

69.  VSMdeman  v.  Patton,   64  S.   C.   408. 

70.  Appellant  should  move  below  for  a 
correction  of  the  verdict  which  is  too  small 
— Comstock  V.  Fraternal  Ass'n  (Wis.)  93 
N.  W.  22. 

71.  Order  to  vacate  changed  to  one  "open- 
ing" judgment  where  the  ob.fect  of  it  was 
to  let  in  a  defense — Potts  v.  Harmer.  19  Pa. 
Super.  Ct.  252.  Want  of  evidence  other  than 
Improbable    testimony    of    a    party    will    re- 


quire reversal — Numan  v.  Wolf  (N.  T.)  73 
App.  Div.  38.  Judgment  against  claim  bonjl 
in  statutory  action  to  try  right  to  attached 
property,  instead  of  against  the  property 
itself  held  capable  of  correction — Arnold  v. 
Cofer,  135  Ala.  364.  Perpetual  injunction 
against  construction  of  a  railroad  may  be 
modified  to  permit  of  its  construction  if 
proper  condemnation  proceedings  be  had — 
Peck  V.  Schenectady  R.  Co..  170  N.  T.  298. 
An  injunction  may  be  modified  bj'  exclud- 
ing its  operation  from  matters  inadvertent- 
ly included — Pape  v.  New  York  &  H.  R.  Co. 
(N.  T.)    74  App.  Div.   175. 

73.  It  appeared  that  obstruction  of  a 
water  course  was  not  harmful  at  all  sea- 
sons but  it  did  not  appear  just  when;  hence 
injunction  against  it  was  affirmed — Mace 
V.  Mace,  40  Or.  586,  68  Pac.  737,  67  Pac.  660. 
Absence  of  material  evidence  which  trial 
court  did  not  give  appealing  party  time  to 
produce — United  States  v.  Rio  Grande  Dam 
Co.,   184  U.  S.   416,  46  Law.  Ed.   619. 

73.  Error  of  referee  in  computation — 
Hasbrouck  v.  Marks   (X.  T.)   58  App.  Div.  33. 

74.  Hopper  V.  Hickam,  169  Mo.  166,  69 
S.  W.  297. 

75.  Judgment  embracing  admittedly  un- 
proved items — Mullin  v.  Langley  (N.  Y.)  37 
Misc.  789. 

76.  Appellate  court  cannot  relieve  but 
must  affirm — Village  of  New  Holland  v. 
Holland,  99  111.  App.  251.  Judgment  for 
vendor  for  purchase  price  -will  not  be  re- 
versed to  add  an  order  for  delivery  of  deed, 
where  one  was  tendered  and  refused,  and 
no  question  of  tender  ■was  brought  in  issue 
— North  Stockton  Town  Lot  Co.  v.  Fischer, 
138  Cal.  100,  70  Pac.  1082. 

77.  Guttery  v.  Boshell,  132  Ala.  596;  Cra- 
mer V.  Huff.  114  Ga.   981. 

78.  Decree  settling  accounts — Snyder  v. 
O'Beirne   (Mich.)   93  N.  W.  872. 

79.  Bank  of  Iron  Gate  v.  Brady.  184  U.  S. 
665.   46  Law.  Ed.   739. 

SO.  Involving  validity  ol  the  statute^ 
Commissioners  of  Drainage  Dist.  v.  Com- 
missioners of  Highways,   199   111.   80. 


FINDINGS, 


195 


ings  to  sustain  judgment.^*  An  order  to  enter  judgment  on  the  verdict  may  be  giv- 
en when  the  setting  aside  of  it  is  reversed.^^  If  the  reviewing  court  having  power  to 
change  findings  made  on  a  trial  to  the  court  remands  the  cause  without  doing  so,  it 
cannot  direct  specific  judgment  below.^'  A  direction  may  be  made  to  take  more 
evidence.^*  Amendments  to  prove  a  jurisdictional  fact  will  not  be  permitted  in  the 
appellate  court  but  reversal  with  leave  to  amend  should  be  made.^"  A  direction  can- 
not be  made  for  leave  to  plead  a  new  cause  of  action  cutting  off  new  defenses,  or 
allowing  a  prayer  for  relief  which  plaintiff  was  offered  below  but  refused. ^^ 

An  affirmance  may  be  conditioned  on  a  remittitur  of  excessive^^  or  illegal  sums 
awarded,^^  or  upon  payment  of  costs  which  should  have  been  imposed  but  were  not." 
To  warrant  an  order  for  remittitur  of  erroneous  items  in  a  verdict,  the  improper 
awards  should  be  separated  and  identified  from  the  others.^"  Eeversal  should  not  be 
made  as  against  a  party  who  offers  to  make  good  an  inadequacy  in  the  award.^^ 

On  appeal  from  the  municipal  court  in  New  York,  a  demand  for  a  new  trial 
may  be  treated  as  surplusage  where  neither  party  demanded  judgment  for  more 
than  $50.  Jurisdiction  to  grant  the  new  trial  cannot  be  conferred  by  stipulation  of 
the  parties.®^ 

D.  Findings,  conclusions,  or  opinions  on  wliich  decision  is  predicated. — When  a 
lower  court  of  appeal  reverses  it  should  make  findings  or  conclusions  to  support  and 
explain  its  decision,"^  unless  there  is  no  controversy  of  fact."*  They  will  not  as  a 
rule  find  facts  on  evidence  which  the  record  itself  shows."^     Eights  may  be  adju- 


81.  Want  of  material  findings  in  parti- 
tion— Levine  v.  Goldsmith  (N.  T.)  71  App. 
Div.   204. 

82.  Set  aside  on  a  Jurisdictional  objec- 
tion and  was  found  to  be  supported  by  evi- 
dence and  unaffected  by  error — Strawn  v. 
Brandt-Dent  Co.    (N.   Y.)    71  App.  Div.   234. 

83.  Guyer's  Estate  v.  Caldwell,  98  111. 
App.   232. 

84.  If  affidavits  on  motion  to  attach  for 
contempt  are  uncertain  and  unsatisfactory, 
a  denial  of  the  motion  may  be  reversed, 
and  the  cause  sent  to  a  referee  to  take  evi- 
dence— Hogan  V.  Clarke  (N.  Y.)  72  App. 
Div.  615. 

85.  Watson  V.  Bonflls  (C.  C^  A.)  116  Fed. 
157. 

86.  Action  to  set  aside  conveyance — War- 
ner v.  Godfrey,  186  U.  S.  365,  46  Law.  Ed. 
1203. 

87.  Gulf,  etc.,  R.  Co.  V.  Darby  (Tex.  Civ. 
App.)  67  S.  W.  446;  Chicag-o,  R.  I.  &  P.  R. 
Co.  V.  Burke,  101  111.  App.  486;  Leach  v. 
Durkin,  98  111.  App.  415;  City  of  Chicago  v. 
Glore,  99  111.  App.  78;  City  of  Chicago  v. 
Gilfoil,  Id.  88;  Hill  v.  Oswald,  Id.  120;  Chi- 
cago &  A.  R.  Co.  V.  Murphy,  Id.  126;  City 
of  Chicago  v.  Doolan,  Id.  143;  Swafford  v. 
Spratt,  93  Mo.  App.  631;  Illinois  Car  Co.  v. 
Weibel,  101  111.  App.  490.  TTie  county  court 
may  do  so  on  appeal  from  the  Syracuse  mu- 
nicipal court — Lynch  v.  Syracuse,  etc.,  R. 
Co.    (N.   Y.)    73  App.  Div.   95. 

If  majority  of  court  think  excessive- — 
Skelton  v.  St.  Paul  C.  R.  Co.  (Minn.)  92  N. 
W.   960. 

Court  should  be  satisfied  the  jury  acted 
honestly — Hawes  v.  Warren,  119  Fed.  978. 
And  in  Colorado  (Code,  §  217)  remittitur  can- 
not be  ordered  if  the  excess  was  due  to 
passion  and  prejudice — F.  M.  Davis  Iron- 
works V.   W^hite    (Colo.)    71  Pac.   384. 

88.  Usury — Sorensen  v«  Central  Lumber 
Co.,    98    111.    App.    581.      Unproved    item — Illi- 


nois Cent.  R.  Co.  V.  Tucker  (Miss.)  31  So. 
792;  International  &  G.  N.  R.  Co.  v.  Samp- 
son (Tex.  Civ.  App.)  64  S.  W.  692.  Remit- 
titur of  a  separate  judgment  erroneously  en- 
tered in  addition  to  a  joint  judgment — Cun- 
ningham V.  Underwood  (C.  C.  A.)  116  Fed. 
803.  Award  exceeding  ad  damnum  clause — 
Trustees  of  Christian  University  v.  Hoffman, 
95  Mo.  App.  488;  Missouri,  K.  &  T.  R.  Co.  v. 
Pawkett  (Tex.  Civ.  App.)  68  S.  W.  323;  First 
Nat.  Bank  v.  Calkins  (S.  D.)  93  N.  W.  646. 
Erroneous  interest  remitted  and  costs  paid — 
Meyer  v.  Phoenix  Ins.  Co.,  95  Mo.  App.  721. 
Allowance  covered  too  long  a  time — United 
Press  V.  A.  S.  Abell  Co.  (N.  Y.)  79  App.  Div. 
550. 

89.  Order  granting  new  trial — Helgers  v. 
Staten  Island  R.  Co,  (N.  Y.)  69  App.  Div. 
570. 

90.  Held  sufficient  where  verdict  stated 
separate  items  and  on  what  they  were 
based,  and  where  excess  was  equal  to  the 
amount  claimed  improperly — W.  U.  Tel.  Co. 
V.  Partlow  (Tex.  Civ.  App.)  71  S.  W.  584. 
Confirmation  of  special  tax  ■which  included 
an  improper  item  distributed  over  many 
properties  must  be  reversed — Thompson  v. 
Chicago,  197  111.   599. 

91.  Hoyt  V,  Chicago,  etc.,  R.  Co.  (Iowa) 
90  N.  W.   724. 

93.  King  V.  Norton  (N.  Y.)  73  App.  Div. 
619.  As  to  inferior  court  judgments  gener- 
ally, see  Courts.  Justices  of  the  Peace. 

93.  In  Illinois  tlie  appellate  court  must 
make  findings  if  it  finds  different  from  the 
trial  court,  even  when  facts  are  stipulated — 
Irwin  V.  N.  W.  Nat.  Life  Co.,  200  111.   577. 

94.  Matter  of  execution  of  written  in- 
strument— Iroquois  Furnace  Co.  v.  Elphicke, 
200  111.  411. 

95.  Instruments  set  out — Scott  v.  Farm- 
ers' Nat.  Bank  (Tex.  Civ.  App.)  67  S.  W.  343; 
Rountree  v.  Thompson  (Tex.  Civ.  App.)  72 
S.    W.     69.      Motion     for    additional    conclu- 


196 


APPEAL  AND  REVIEW. 


dicated  if  decisive  of  the  question.**  "Cnneces^sary  questions  will  not  be  answered." 
Xo  decision  \rill  be  made  as  to  a  nonappealing  party  unless  it  is  necessitated  by  the 
decision  on  appellant's  case.** 

E.  Modifying  or  reliecing  from  appeUaie  decree. — Decision  will  not  be  modified 
ex  parte  for  matters  not  in  the  record.**  If  the  alimony  part  of  a  ciTorce  decree  was 
not  appealed  and  the  facts  as  to  alimony  are  not  in  the  record,  the  appellate  decision 
cannot  be  modified  in  snch  respect*  A  lower  conrt  decree  pursuant  to  remand  may 
be  reversed  to  correct  error  in  the  appellate  decision.^  Leave  may  be  granted  after 
affirmance,  to  apply  to  the  lower  court  to  vacate  a  satisfied  judgment.*  If  leave  be 
<nven  to  vacate  a  judgment  below.  appUeant  is  not  restricted  to  the  showing  made 
above.*  If  right  to  plead  over  given  below  was  not  reserved  in  a  judgment  of  aflfirm- 
ance,  application  for  it  should  be  made  above.'  Since  a  remand  revests  jurisdiction 
in  the  lower  court,  the  reviewing  court  may  vacate  without  notice  any  judgment 
thereafter  made  by  it.* 

F.  Mandate  and  retrial. — ^The  cause  usually  but  does  not  necessarily  go  back  to 
the  same  tribunal  for  trial.'  After  reversal  of  a  referee's  judgment,  the  case  do« 
not  so  back  to  him.*  A  motion  for  issuance  of  mandate  without  costs  on  ground  of 
poverty  requires  a  dear  showing.*  Time  to  issue  mandate  is  computed  from  the 
date  of  original  decision  above  and  not  from  corrected  dates.*" 

Retrial. — ^Xo  new  note  of  issue  is  required  where  a  cause  once  on  docket  stays 
until  stricken  or  disposed  of.**  In  Kentucky,  statutory  notice  of  filing  a  mandate  is 
needless  to  take  a  case  to  the  next  term  when  filed  in  court  during  term  time.**  A 
remanded  cause  may  proceed  by  jury  trial  though  the  former  trial  was  to  the  court.*' 
When  the  highest  court  renders  judgment  absolute  pursuant  to  appellant's  stipula- 
tion, no  proceeding  to  assess  damages  is  needed  if  it  was  done  in  the  order  ap- 
pealed.** 

Matters  decided  are  fixed  and  ^ould  not  be  raised  again,*'  unless  new  evidence 


slons  denied  because  on  matters  in  record 
»^v  bill  of  exceptions — ^Texas  Tram  Co.  v. 
Gwtn  (Tex.  Civ.  App.)  68  S.  \«'.  721. 

96.  People  V.  Court  of  Appeals  (Colo.)  «9 
Pac  SOS. 

97.  Conflicting  special  findings  not  retS>ii- 
ciled  for  an  unsuccessful  appellant — ^Kirk- 
patrick  v.  Tarlton  (Test-  Civ.  App.)  S9  S.  'W. 
179.  Effect  of  breach  of  contract  resulting 
in  no  damage — ^Xew  Idea  Pattern  Co.  ▼. 
Wlielan   (Conn.)   53  AtL  953. 

98.  Christopher  &  S.  Foundry  CfK  ▼. 
KeUy.  91  Mo.  App.  93. 

99l     Smith  v.  Hooper.  95  Md.  IS. 

1.  Gibson  v.  Gibson.  18  App.  D.  C^  72. 

2.  Intermediate  court  ^riU  reverse  judg- 
ment following  its  own  mandate  if  supreme 
court  afterward  reverses  decision  on  which 
mandate  issued — Guyer's  Estate  v.  CaldweU. 
98  m.  App.  232. 

3.  Post  V.  Spokane.  28  "Wash.  701,  69  Pac. 
371.  1104. 

■i.     State    V.    Superior    Court    (Wash.)     71 


Pac   740 


C 
70. 


White  V.  Jackson  (X.  T.)   39  Misc.  218. 
Thomas  v.   Robinson    (Iowa)    92  N.  W. 


After  the  creation  of  two  districts  in 
■W.  Va.  a  remanded  cause  will,  under  the 
provision  of  Act  of  Congress,  Jan.  22.  1901. 
be  sent  to  the  northern  district  in  order 
to  be  heard  before  the  trial  judge,  though 
otherwise  the  cause  would  have  l>een  trans- 
ferred to  the  southern  district — ^Hatfield  v. 
King.  ISS  r.  S.  ITS,  46  Law.  Ed.  1112- 


8.     Camp  V.  Bank  (Fla.)  33  So.  241. 

9u  Party  had  proi>erty  but  did  not  show 
that  effort  to  sell  had  been  made  or  that  it 
was  Impossible  to  sell — Gulf.  etc.  R.  Co.  ▼. 
Matthews  (Tex.  (?iv.  App.)   67  S.  "W.  7SS. 

19l  Lee  v.  British  &  Am.  Moris.  Co.  <Tex. 
Civ.  App.)  70  S.  "W.  775.  Act  ISOl,  c  54.  as 
to  time  of  taking  mandate,  construed  to  op- 
erate prospectively  and  to  apply  where  a 
defeated  plaintiff  procures  a  reversal — 
Scales  V.  MarshaU  (Tex.)  70  S.  ■^.  S43. 

U.  2  Ball.  Ann.  Codes.  §  49T>} — Spokane 
&  V.  Copper  Co.  v.  Coif  el  t,  30  Wash.  628. 
71  Pac  196. 

12.  Chestnut  v.  RusseU.  24  Ky.  Law  Rep. 
704. 

13.  Guyer's  Estate  v.  Caldwell.  98  IlL 
App.  232. 

14.  Damages  were  found  and  case  dis- 
missed, that  was  reversed  and  reversal  af- 
firmed— ^Wright  V.  Mt.  Temon  (N.  Y.)  78 
App.  Div.  467. 

13.  People  V.  Hathaway,  102  111.  App.  628; 
j  Fortunato  v.  Xew  Tork  (N.  Y.)  74  App.  Div. 
1  441;  RusseU  v.  Mohr-Weil  Co..  115  Ga.  35; 
i  Martin  v.  People's  Bank.  115  Fed.  226.  That 
j  action  was  equitable — ^Porter  v.  Intema- 
I  tional  Bridge  Co.    (X.   Y.)    79  App.   Div.    358. 

I  Rights  of  a  lessee  on  certain  facts — Shaft 
▼.  Carey  (Wis.)  90  X.  "W.  427.  Taxation  and 
allowance  of  costs — In  re  Henschel.  114  Fed. 
968.  Fees  should  not  be  allowed  to  receiver 
after  his  appointment  is  held  invalid — ^La 
i  Femina  v.  Arsene  (N.  Y.)  74  .A.pp.  Div.  620. 
I  Though  decided  for  a  wrong  reason — Hutch- 


MANDATE. 


197 


is  received  making  a  different  case^^^  ^^g^^g  ^  judgment  against  defendant,  who 
proved  an  answer  held  to  state  a  complete  defense,  is  wrong  ;^^  but  if  the  point  or 
issue  was  not  reviewed,  it  is  still  open,^^  if  the  right  to  raise  it  has  not  been  lost  by 
delay,  failure  to  object,  or  appeal,  or  the  like.^® 

The  court  must  follow  the  mandate  else  a  second  reversal  will  follow.^o  The 
verdict  for  a  successful  appellant  may  be  set  aside  though  a  directed  verdict  for  the 
adversary  was  wrong.  ^^  New  terms  of  sale  may  be  imposed  in  a  second  foreclosure 
after  reversal  of  the  first  for  usury.^^ 

Unless  restricted  by  the  mandate,  amendments  may  be  allowed  by  the  court  be- 
low.2=*     Pleadings  and  papers  may  be  amended  to  state  facts  more  fully,-*  or  to  state 


inson  v.  Manhattan  Co.,  170  N.  Y.  579.  De- 
cision on  facts  not  binding  where  retrial 
was  discontinued  and  new  action  brought 
in  different  jurisdiction — 111.  Cent.  R.  Co. 
V.  Bentz,  108  Tenn.  670. 

Answer  may  be  let  in  after  reversal  for 
not  defaulting-  defendant  (Code,  §  274)  Cook 
V.  Am.  Exchg.   Bank.   131  N.  C.  96. 

Trial  court  bound  only  by  decisions  of 
law — Hale  v.  People's  Gas  Co.,  102  111.  App. 
364.  Contradicting  former  testimony  affects 
credibility  only  (Pacific  Biscuit  Co.  v.  Dug- 
ger  (Or.)  70  Pac.  523;  but  see  Wunderlich 
V.  Palatine  Ins.  Co.  (Wis.)  92  N.  "W.  264, 
holding  that  opinion  cannot  be  read  to  con- 
tradict him.  Trial  may  be  de  novo  on  facts 
if  no  directions  given — Hovland  v.  McNeill 
&  H.  Co.,   104   111.  App.   149. 

If  no  change  in  proof  verdict  may  be  di- 
rected— Lindsey  v.  Allen  (Ga.)  43  S.  E.  49. 
Instruction  applicable  to  same  facts  sus- 
tained— Ward  v.  St.  Vincent's  Hospital  (N. 
Y.)    78  App.  Div.   317. 

16.  Phelps  Co.  Ins.  Co.  v.  Johnston  (Neb.) 
92  N.  W.  576;  Friedman  v.  Lesher,  198  111.  21. 
Bass  Dry  Goods  Co.  v.  Granite  City  Co. 
(Ga.)  42  S.  B.  415;  Sovereign  Camp  W.  O. 
W.  V.  Hallcr  (Ind.  App.)  66  N.  E.  1S6;  Bos- 
ton &  M.  Min.  Co.  V.  Montana  Ore  Pchg.  Co., 
27  Mont.  431,  71  Pac.  471;  State  v.  Paxton 
(Neb.)  90  N.  W.  983;  Griffen  v.  Manice  (N. 
Y.)  74  App.  Div.  371.  Different  evidence — 
Pacific  Coast  Biscuit  Co.  v.  Dugger  (Or.)  70 
Pac.  523.  New  findings  held  immaterial  on 
right  of  trustee  to  compensation — Bemmer- 
ly  v.  Woodard.  136  Cal.  326,  68  Pac.  1017. 
Retrial  after  reversal  of  involuntary  non- 
suit— Puchs  v.  St.  Louis,  167  Mo.  620.  Evi- 
dence held  not  material  as  to  time  of  ac- 
cruing of  right  to  proceeds  of  commercial 
paper — Hutchinson  v.  Manhattan  Co.,  170 
N.  Y.  579. 

17.  Pittsburgh,  etc.,  R.  Co.  v.  Mahoney, 
29  Ind.  App.  654. 

18.  Duncan  v.  Scott  Co.,  70  Ark.  607.  In- 
structions given — Kibler  v.  Southern  R.  Co., 
64  S.  C.  242.  Referee's  report  is  still  evi- 
dence if  its  admissibility  was  not  reviewed 
— Boody  V.  Pratt  (N.  J.  Law)  53  Atl.  470. 
Right  to  interest  not  concluded  when  not 
mentioned — Whitehead  v.  Brothers  Lodge  I. 
O.   O.   F..    24   Ky.   Law  Rep.    1633. 

19.  S  .ficiency  of  pleadings — Greenwood 
Tp.  v.  Richardson,  10  Kan.  App.  581,  62  Pac. 
430.  New  possible  defense  covered  by  an- 
swer but  not  considered  on  review,  cannot 
be  let  in  after  reversing  judgment  on  plead- 
ings for  want  of  a  specified  fact — Shaft  v. 
Carey  (Wis.)  90  N.  W.  427.  Separate  issues 
not  appealed  are  closed — Bemmerly  v.  Wood- 
ard, 136  Cal.  326,  68  Pac.  1017. 


20.  Delbridge  v.  Lake  B.  &  L.  Ass'n,  98 
111.  App.  96.  Judgment  on  retrial  sustained 
—Kentucky  Heating  Co.  v.  Louisville  Gas 
Co.,  24  Ky.  Law  Rep.  990.  Slight  departure 
may  be  error  but  not  make  void — People 
V.  Carpenter,  29  Colo.  365,  68  Pac.  221.  Held 
error  to  deduct  costs  from  sum  adjudged— 
Lockhart  v.  Severance,   63  S.  C.  74. 

New  judgment  should  not  be  entered  on 
directions  to  modify  it  in  a  certain  respect 
and  "further  if  necessary" — Bemmerly  v 
Woodard,  136  Cal.  326,  68  Pac.  1017.  Contra 
where  the  kind  of  modification  was  not  pre- 
scribed— Downing  v.  Rademacher,  138  Cal. 
324,  71  Pac.  343. 

Mandamus  not  proper  remedy  for  depart- 
ure— People  v.  Carpenter,  29  Colo.  365,  68 
Pac.   221. 

Contra, — American  Placer  Co.  v.  Rich 
(Idaho)    69  Pac.   280. 

Appeal  lies  if  mandate  be  transgressed — ' 
Butler  V.  Thompson,  52  W.  Va.   311. 

Conformity  of  procedure  to  mandate;  con- 
struction. It  should  construe  an  opinion  in 
light  of  the  subject  of  it — Farrow  v.  Eclipse 
Bicycle  Co.,  18  App.  D.  C.  101.  Decision 
construed  on  right  to  prove  subsequent  facts 
not  as  defense  but  as  going  to  mitigation  of 
damages — Gabay  v.  Doane  (N.  Y.)  77  App. 
Div.  413.  Reversal  for  errors  on  trial  not 
construed  as  favorable  to  party  on  facts, 
in  face  of  adverse  holding  on  every  issue — 
Smith  V.  Day,  117  Fed.  956;  Huntress  v.  Port- 
wood  (Ga.)  42  S.  E.  513.  Reversal  for  want 
of  a  finding  not  a  decision  on  facts — Con- 
way V.  Catholic  Knights,  137  Cal.  384,  70 
Pac.  223.  Opinion  on  practice  does  not  con- 
clude merits — Bradshaw  v.  Gunter,  135  Ala. 
240.  Decision  held  conformable  *to  opinion 
reversing  decree  quieting  title  and  instead 
deciding  equities  in  mining  claim — Dowing 
V.  Rademacher,  138  Cal.  324.  71  Pac.  343. 
Reversal  of  nonsuit  does  not  decide  on  facts 
— Kelly  v.  Strouse  (Ga.)  43  S.  B.  280.  When 
issue  goes  back  as  to  whether  writing  sets 
out  the  whole  of  a  contract,  it  is  error  to 
exclude  testimony  as  varying  an  instrument 
— Huber  Mfg.  Co.  v.  Hunter  (Mo.  App.)  72 
S.  W.  484.  As  to  right  of  recovery  for 
breach  of  covenant  for  title — E&an  v.  Mar- 
tin   (Mo.  App.)    71   S.  W.   468. 

21.  Binion  v.  Georgia  R.  Co.,   115  Ga.  330. 

22.  Morgan  v.  Wickliffe.  24  Ky.  Law  Rep. 
1039. 

23.  The  applicant  should  excuse  failure 
to  do  so  earlier — Russell  v.  Mohr-Weil  Co., 
115  Ga.  35.  Refusal  to  let  in  a  defense  of 
limitations  sustained — Wilson  v.  Winsor,  24 
Ky.  Law  Rep.  1343.  Reversal  on  reasons 
first  developed  on  review  held  to  warrant 
leave  to  amend  without  paying  costs — Miller 


198 


APPEAL  AND  REVIEW. 


additional  facts.^®  Amendment  to  conform  to  proof  is  primarily  discretionary  with 
the  court  below.^"  Additional  facts  may  before  resubmission  be  added  to  a  demur- 
rable complaint  after  reversal  of  judgment  for  want  of  them."  After  appeals  de 
novo,  as  in  equity,  amendments  are  not  allowable,  but  in  special  circumstances  re- 
lief is  given.^^ 

Other  relief  may  be  given  on  a  retrial  which  is  not  repugnant  to  the  mandate.^" 
When  an  order  on  a  motion  is  reversed  and  remanded  without  direction,  the  merits 
are  still  open  to  the  court  below.^°  Application  for  a  remedy  may  be  renewed  on  a 
remand  with  leave  to  resort  to  any  remedy  without  prejudice  to  former  applica- 
tions." An  intimation  in  the  opinion  as  to  right  of  recovery  does  not  exclude  that 
issue  from  a  retrial.^^  An  order  of  restitution  may  be  made  if  judgment  has  been 
paid  with  an  agreement  to  repay  if  reversed.*^ 

Proceedings  on  remand  to  loirer  appellate  court. — If  sent  back  for  want  of  juris- 
diction, decision  stands  and  mandate  must  issue.^*  An  intermediate  appellate  court 
to  which  a  cause  was  remanded  because  the  agreed  facts  were  too  meagre  must  make 
findings  of  fact  or  if  error  of  law  exists  remand  the  cause  further  to  the  trial  court.^' 
When  a  reversal  is  sent  back  to  find  facts  or  if  reversed  for  error  of  law  to  remand, 
an  affirmance  may  be  made  by  the  intermediate  court.^®  An  omitted  finding  of  fact 
mav  be  supplied  on  a  mandate  to  reverse  and  remand  or  affirm.^^  An  intermediate 
appellate  court  should  reverse  a  judgment  entered  pursuant  to  its  own  mandate,  if 
such  course  is  necessitated  by  a  decision  of  the  highest  court  contrary  to  directions 
in  such  mandate.^*  A  mere  entry  on  rescript  to  the  court  below,  "exceptions  over- 
ruled," leaves  the  suit  still  pending  until  final  decree.^'' 

§  16.  Rehearing  and  relief  thereon. — Eehearings  are  allowed  only  when  the 
judgment  finally  disposes  of  the  cause.*"  The  petition  must  state  matters  not  al- 
ready considered,*^  but  new  points  not  before  urged  cannot  be  urged,*^  and  rfecord 
subsequent  to  judgment  appealed  will  not  be  received.*^  A  time  is  usually  prescribed 
within  which  rehearing  must  be  asked  or  petition  filed.**     The  petition  must  be 


V.  Carpenter  (N.  T.)  79  App.  Div.  130. 
Amendment  allowed  to  conform  to  statutory 
procedure  and  to  use  such  evidence  former- 
ly adduced  as  was  responsive  (proceeding  to 
enjoin  prevention  of  change  of  point  of  di- 
version of  water  changed  so  as  to  sue  to 
make  change) — New  Cache  La  Poudre  Co.  v. 
Water  Supply  Co..  29  Colo.  469,  68  Pac.  781. 
It  is  not  a  contempt  but  an  occasion  for  ap- 
peal if  the  trial  judge  deny  an  amendment 
designed  to  present  a  defense  not  passed  on 
because  not  pleaded — May  v.  Ball,  24  Ky. 
Law  Rep.  241.  Mandate  gave  directions  on 
facts  found  and  on  which  opinion  was  based 
— Butler  V.   Thompson,   52   W.  Va.    311. 

24.  A  contempt  affidavit  if  meager  may 
be  amended  on  re-trial — Scott  v.  State 
(Tenn.)    71  S.  W.  824. 

25.  Emerson  v.  Schwindt,  114  "Wis.  124. 
Amendments  should  not  be  made  to  meet 
objections  overruled  by  the  supreme  court 
— Russell  V.  Mohr-Weil  Lumber  Co.,  115  Ga. 
35. 

26.  Male  v.  Schaut,  41  Or.  425,  69  Pac.  137. 

27.  Charleston  R.  Co.  v.  Miller,  115  Ga.  92. 

28.  Evidence  of  bona  fides  and  that  for- 
mer evidence  was  fraudulent — Fellows  v. 
Loomis,   204  Pa.   225. 

Evidence  held  not  to  show  concealment  of 
facts  warranting  such  relief  —  Farrow  v. 
Eclipse  Bicycle  Co.,   18  App.  D.  C.  101. 

29.  Grant  of  new  trial  two  years  after 
remand  held  not  error — Canosia  Tp.  v. 
Grand  Lake  Tp.,   87  Minn.   347. 


30.  Temporary  alimony — Marx  v.  Marx, 
94  Mo.  App.   172. 

31.  Contempt  against  one  who  Interfered 
with  receiver — Fletcher  v.  McKeon  (N.  Y.) 
74  App.  Div.   231. 

32.  Csatlos  v.  Metropolitan  St.  Ry.  Co.  (N. 
T.)   78  App.  Div.  635. 

33.  Denning  v.  Yount    (Kan.)   71  Pac.   250. 

34.  Bradley  v.  Phoenix  Ins.  Co.,  92  Mo. 
App.  241. 

35.  Heath  &  Milligan  Co.  v.  National  Lin- 
seed Oil  Co.,   99  111.  App.  90. 

36.  Heath  &  M.  Co.  v.  National  Linseed 
Oil  Co.,  197  111.   632. 

37.  Agnew  v.  Supple,   99  111.  App.   19. 

38.  Guyer's  Estate  v.  Caldwell,  98  111. 
App.  232. 

39.  Gushing   v.    Gushing,    181   Mass.    209. 

40.  Refusal  to  dismiss  is  interlocutory — 
Gagneaux  v.  Desonier    (La.)    33  So.   561. 

41.  Da  Costa  v.  Dibble  (Fla.)   33  So.  466. 

42.  Indiana  Power  Co.  v.  St.  Joseph 
Power  Co.  (Ind.)  64  N.  E.  46S;  Mathews  v. 
Granger,  196  111.  164;  Clipper  Min.  Co.  v.  Eli 
Co.,  29  Colo.  377,  68  Pac.  286.  Instruction 
cannot  be  assailed  on  objections  not  broader 
than  urged  at  hearing — Union  Pac.  R.  Co.  v. 
Colorado  Tel.  Co.  (Colo.)  69  Pac.  564;  Mc- 
Donald v.  People,  29  Colo.  503,  69  Pac.  703. 
Points  not  in  briefs — Fishel  v.  Goddard 
(Colo.)   69  Pac.  607. 

43.  Clipper  Min.,  Co.  V.  Eli  Co.,  29  Colo. 
377,   68  Pac.  286. 

44.  The    court    cannot    extend    the    statu- 


LIABILITY  ON  BONDS. 


199 


filed  as  of  the  day  it  is  received;  and  delivering  it  for  transmission  to  the  clerk  is 
not  delivery  to  him.*^  It  should  be  addressed  to  the  court  and  the  court  should  pass 
on  it.*®  Final  disposition  of  cause  will  not  be  made  on  application  for  rehearing.*^ 
Reversal  founded  on  apparent  defects  of  trial  procedure  will  be  set  aside  and  the 
judgment  affirmed  on  a  showing  that  the  clerk  omitted  to  put  them  in  the  record  and 
the  party  could  not  sooner  have  known  of  or  corrected  it;  if  there  has  been  unex- 
plained delay,  and  the  case  must  go  back  in  any  event,  he  may  be  remanded  to 
such  remedy  as  may  still  be  given  in  the  trial  court.*^ 

§  17.  Liability  on  bonds  and  the  liJce.*^ — No  liability  attaches  to  the  obligor 
in  an  erroneously  exacted  supersedeas  bond.^°  An  appeal  undertaking,  insufficient 
to  comply  with  the  statute,  may  bind  the  sureties  as  a  common  law  undertaking,  if 
there  is  an  actual  stay  of  execution  thereon.^^  The  conservator  of  a  lunatic  who 
has  given  a  bond  on  appeal  from  a  judgment  against  him  cannot  question  its  validity 
for  want  of  a  proper  obligee.^^ 

Extent  of  liability. — Moneys  already  paid  should  be  allowed  on  recovery.^^ 
Under  statutes  requiring  an  appellant  to  give  an  undertaking  to  pay  all  costs  and 
damages  awarded  on  appeal,  the  liability  of  a  surety  extends  only  to  the  costs  of  the 
appeal  to  the  appellate  court.^*  On  supersedeas  of  a  judgment  overruling  a  de- 
murrer to  the  petition,  the  surety  is  not  liable  for  the  amount  of  a  verdict  finally 
rendered."  On  a  bond  filed  by  one  party  appealing,  the  liability  extends  only  for 
loss  occasioned  by  the  suspension  of  the  portion  of  judgment  superseded  by  such 
party.^® 

Sureties  are  not  liable  for  damage  occasioned  by  the  party's  own  neglect  and 
not  the  stay.^^  Interest  not  awarded  by  the  appellate  court  cannot  be  included  in 
the  damages  where  there  is  no  proof  of  misconduct  on  the  part  of  appellant.^^ 
On  an  appeal  bond  superseding  an  order  confirming  a  foreclosure  sale  and  directing 
the  execution  of  a  deed  and  delivery  of  possession  to  the  purchaser,  the  obligee  may 


tory  time  to  seek  a  rehearing — Dudg-eon  v. 
Bronson  (Ind.)  65  N.  B.  752.  Must  be  filed 
within  25  days  of  filing  opinion — Radloff  v. 
Haase,  197  111.  98.  15  days  after  decision 
—Smith  V.  Simpson   (Ind.  T.)    69  S.  W.  841. 

45.  Radloff  v.  Haase,  197  111.  98. 

46.  Under  the  laws  of  Arkansas  as  adopt- 
ed for  the  government  of  the  Indian  Terri- 
tory, the  court  of  appeals  in  the  territory, 
has  no  authority  to  adopt  a  rule  permitting 
a  judge  to  order  a  rehearing.  If  presented 
after  term  within  the  fifteen  days  allowed, 
a  judge  should  indorse  an  order  for  filing 
upon  the  petition  which  shall  then  stand 
over  for  hearing  until  the  tenth  day  of  the 
next  term — Smith  v.  Simpson  (Ind.  T.)  69  S. 
W.   841. 

47.  Losecco  V.   Gregory,   108   La.    648. 

48.  Service  on  a  necessary  party — Powell 
V.  Nolan,  27  Wash.  318,   68  Pac.   389. 

49.  Variance  in  statement  of  term  held 
unimportant — White  v.  Boreing,  24  Ky.  Law 
Rep.   738. 

50.  Bond  required  of  an  administrator — 
Kerr  v.  Lowenstein   (Neb.)   90  N.  W.  931. 

51.  The  sureties  were  charged  with  no- 
tice that  they  were  not  mei'ely  executing  a 
cost  bond — Coughran  v.  Hollister,  15  S.  D. 
318. 

52.  Bond  given  to  the  estate — Duncan  v. 
Thomas   (Colo.  App.)    69  Pac.   310. 

53.  Penny  v.  Richardson  (Okl.)  71  Pac. 
227. 


54.  An  undertaking  on  an  appeal  to  the 
appellate  court,  stating  that  it  was  made 
pursuant  to  Code  Civ.  Proc.  §  1326  and  that 
the  surety  undertook  that  appellant  would 
pay  all  costs  and  damages  awarded  against 
him  on  appeal,  does  not  include  costs  in  all 
the  courts,  though  Judgment  absolute  was 
rendered  against  appellant  with  costs  in 
all  the  courts — Bennett  v.  American  Surety 
Co.    (N.   Y.)    73  App.  Div.   468. 

55.  His  liability  Is  only  for  the  costs  of 
prosecuting  the  writ  of  error — Franklin  v. 
Krlegshaber,    114   Ga.    947. 

56.  On  a  bond  given  by  a  third  party 
made  defendant  in  foreclosure  where  a  judg- 
ment had  been  rendered  against  the  creditor 
for  the  debt  and  against  both  parties  for 
foreclosure,  the  appellant  is  not  liable  for 
money  judgment  rendered  against  the  cred- 
itor but  only  for  loss  directly  occasioned  by 
a  postponement  of  the  foreclosure  sale — 
Adoue  v.  Wettermark  (Tex.  Civ.  App.)  68 
S.    W.    553. 

57.  Adverse  party  failed  to  take  posses- 
sion of  mortgaged  property  after  the  dis- 
missal of  appeal  and  dissolution  of  Injunc- 
tion— Pfirshing  V.  Peterson,  98  111.  App.  70. 

58.  Fund  deposited  at  Interest,  and  no 
proof  of  unreasonable  or  vexatious  delay  In 
prosecuting  the  appeal  and  appellee  had 
received  the  fund  with  its  accumulations — 
Pike  V.   Gregory    (C.   C.   A.)    118   Fed.   128. 


200 


APPEAL.  AND  REVIEW. 


recover  rents  and  profits  collected  bv  the  judgment  debtor  after  connrmation  of  the 
6ale/*  though  a  deficiency  judgment  is  paid.®°  On  a  bond  on  writ  of  error  from  a 
decree  in  rem,  the  obligors  are  not  held  to  pay  any  of  the  money  decree.®^ 

Satisfaction  and  discharge  of  sureties.^- — A  bond  on  appeal  from  trial  to  an 
intermediate  court  is  not  discharged  by  a  bond  from  an  intermediate  to  a  higher 
court,  and  payment  of  one  does  not  satisfy  the  other.^'  A  change  of  issues  by 
amendment  in  the  appellate  court  discharges  the  sureties.**  An  amendment  of  the 
vad^rment  which  does  not  afiect  the  legal  rights  of  the  parties  does  not  affect  the 
rights  of  sureties  on  the  appeal  bond.®'  Confinement  of  the  principal  for  contempt 
in"  failing  to  pay  the  judgment  does  not  operate  as  a  satisfaction.*"  Sureties  on 
appeal  for  a  defendant  who  gave  bond  to  prevent  restitution  are  liable  until  restitu- 
tion is  made.*'  Violation  of  an  injunction  pending  an  appeal  should  be  redressed 
at'ainst  the  injunction  bond  and  not  against  the  supersedeas  which  left  such  in- 
junction in  force.** 

Forfeiture  and  enforcement. — A  bond  on  a  writ  of  error  is  forfeited  with  dis- 
missal of  the  writ."  An  action  on  an  appeal  bond  is  barred  by  the  statutes  relating 
generallv  to  official  bonds."°  One  joint  obligee  may  maintain  an  action  if  it  is  alleged 
and  proven  that  he  has  become  entitled  to  the  iaterests  of  co-obligees,  but  he  must 
prove  such  fact  if  it  is  denied,  and  where  he  has  not  made  such  showing,  it  is  in  the 
discretion  of  the  court  whether  it  will  permit  a  juror  to  be  withdrawn  and  the  case 
continued.^^  Independent  actions  may  be  brought  on  bonds  given  by  the  same  party 
on  appeal  to  an  intermediate  court  and  from  the  intermediate  to  a  final  court."* 
The  property  of  the  judgment  debtor  need  not  be  exhausted  before  suing  on  a  super- 
sedeas bond,  nor  need  an  execution  be  issued  and  returned  nulla  bona,  nor  in  case 
of  decease  of  the  judgment  debtor  need  the  remedy  against  his  estate  be  first  pur- 
sued."' 

Evidence  of  misrepresentations  releasing  the  surety  must  connect  them  with  the 
execution  of  the  bond.'* 


59.  "Woodworth  v.  Northwestern  Mut.  Life 
Ins.  Co.,  1S5  U.  S.  354.  45  Law.  Ed.  945.  Dur- 
ing the  time  he  has  been  kept  out  of  pos- 
session by  the  bond — Brown  v.  Northwest- 
ern Mut.  Life  Ins.  Co.  (C.  C.  A.)  119  Fed. 
148. 

Ml  German  Sav.  &  Loan  Soc.  v.  Kern 
(Or.)    70   Pac    709. 

<1.  The  bond  was  conditioned  to  prose- 
cute the  writ  with  effect — Smith  v.  Caldwell 
(Mo.  App.)   TO  S.  "^.   926. 

62.  The  liability  of  a  surety  on  an  ap- 
peal bond  in  foreclosure  is  not  discharged 
by  payment  of  part  of  a  bid  made  by  him 
at  a  sale,  under  the  judgrment,  which  ■was 
not  completed — Leopold  v.  Epstein  (N.  T.) 
54  App.  Div.  133.  Mistake  in  the  omission 
of  the  husband  from  the  judgment  rendered 
on  appeal  from  a  judgment  in  favor  of  hus- 
band and  wife,  is  not  a  defense  to  an  action 
on  the  appeal  bond.  Judgment  in  city  dis- 
trict court  in  an  action  for  an  injury  to 
wife,  removed  to  the  common  pleas — Rosen- 
berg- V.  Stover.  67  N.  J.  Law.  506. 

6S.  The  securities  are  cumulative — ^Au- 
rand  v.  Aurand.   9S  lU.  App.   524. 

64.  Stay  bond  on  appeal  from  probate  to 
district    court— Smith    v.    Haner    (Idaho)     69 

Pac.  109. 

65.  \mendment  of  a  foreclosure  judgment 
reouiring  the   sheriff   to   pay  from   proceeds 
of  the  sale,  the  expenses  of  sale,  the  costs 
adjudged  to  the  plaintiff  and  the  amount  of  ] 
the   mortgage   debt,    so   as   to   direct   him    to  I 
pay   the   mortgage   debt   and   thereafter   the  I 


costs  and  expenses,  does  not  aCect  the  rights 
of  the  sureties — Leopold  v.  Epstein  (N.  T.) 
54  App.  Div.  133. 

66.  Confinement  of  conservator  of  insane 
person  for  contempt  in  falling  to  pay  a 
judgment  to  the  estate  of  the  ward  not  a 
satisfaction  discharging  the  sureties  on  an 
appeal  bond  in  the  action  leading  to  the 
judgment — Duncan  v.  Thomas  (Colo.  App.) 
69  Pac  310. 

67.  Forcible  detainer — ^Penny  v.  Richard- 
son   (Okl.)    71  Pac.   227. 

68.  Green  Bay  &  M.  C^nal  Co.  v.  Norrie, 
lis   Fed.   923. 

69.  On  a  bond  to  stay  execution,  the 
sureties  are  liable  to  the  oTvner  of  the 
judgment  for  its  amount  •with  interest  and 
costs — Campbell  v.  Harring-:cn.  S3  Mo.  App. 
315. 

70.  Code  Civ.  Proc.  |  14.  bars  an  action 
on  an  appeal  bond  in  ten  years — Crum  ▼. 
Johnson   iNeb.)    92  N.  W.   1054. 

71.  Code  Civ.  Proc.  §  29 — Harker  v.  Bur- 
bank   (Neb.)   93  N.  "^.   949. 

72.  County  to  district  and  district  to  su- 
preme courts — ^Duncan  V.  Thomas  (Colo.  App.) 
69  Pac   310. 

73.  Bonds  given  under  Code  Civ.  Proc  S 
588 — ^Palmer  v.  Caywood  (Neb.)  89  N.  "W. 
1034. 

74.  The  surety  cannot  testify  that  he  waa 
informed  that  a  bond  for  payment  of  a  judg- 
ment, if  affirmed,  was  simply  a  cost  bond. 
if    it    is    not    shewn    vrho    informed    him    or 


APPEARANCE. 


201 


Summary  judgment  cannot  be  entered  against  a  surety  on  a  bond  in  unlawful 
entry  and  detainer."  Under  statutory  provisions  for  entry  of  judgments  against 
sureties  on  appeal  bonds  on  affirmance,  when  the  amount  can  be  ascertained  without 
trial,  judgment  cannot  be  so  entered  on  an  appeal  bond  conditioned  to  pay  rents 
and  damages  to  real  property  pending  appeal,^^  and  the  appellate  court  may  refuse 
to  enter  judgment  save  for  costs  of  appeal,  where  the  appellee  has  performed  acts 
prejudicial  to  the  sureties."  General  provisions  for  the  entry  of  judgment  against 
sureties  on  motion  and  notice  for  the  amount  adjudged  against  the  plaintiff  may  be 
inapplicable  to  bonds  given  on  appeal,  in  which  case  the  remedy  is  by  action.^^ 

Judgment  on  the  bond  should  be  according  to  its  terms.^^  In  debt  on  an  appeal 
bond,  the  judgment  should  be  for  the  penalty,  to  be  discharged  by  payment  of  dam- 
ages resulting  from  the  breach.*" 


APPEARANCE. 


f  1.     Definitions  and  Kinds  and  What  Con- 
Btitntes. 


§  2. 
§  3. 


Who  May  Make  or  Enter. 
Effect. — General;  Special. 


This  title  deals  with  voluntary  appearances,  and  of  special  appearances  to  the 
writ,  or  appearances  as  constituting  a  waiver  of  jurisdictional  defects.  Appearance 
to  the  writ  generally,  and  consequences  of  it,  or  of  nonappearance,  pertain  to  other 
topics,  as  affecting  questions  of  default,  forfeiture,  or  time  to  plead. ^ 

§  1.  Definitions,  Jcinds,  and  distinctions  of  appearances,  and  what  consti- 
tutes them.  General  or  special  appearance. — An  appearance  is  general  in  its  effect 
and  for  all  purposes,  if  it  is  for  any  other  purpose  than  to  object  to  the  jurisdic- 
tion,^ or,  while  otherwise  special,  invokes  other  ground  recognizing  the  jurisdic- 
tion, as  a  motion,  on  special  appearance,  by  one  not  served,  asking  dismissal  for 


that   he   relied    on    the   statement — Coughran 
V.  Hollister,  15  S.  D.  318,  89  N.  W.  647. 

75.  The  remedy  is  by  action  on  the  bond 
— Hadley  v.  Bernero  (Mo.  App.)   71  S.  "W.  451. 

76.  2  Ballinger's  Ann.  Codes  &  Sts.  §  6523 
— Carmack  v.  Drum,  27  Wash.  382,  67  Pac. 
808. 

77.  The  appellate  court  will  not  render 
judgment  on  the  supersedeas  bond  except 
for  costs  of  appeal,  and  will  leave  the  ap- 
pellee to  sue  on  the  bond  where  the  surety 
became  such  on  account  of  his  knowledge 
that  appellant  w^as  carrying  on  a  profitable 
business  and  in  reliance  on  his  promise  to 
make  a  certain  deposit  monthly,  which  would 
have  been  sufficient  to  discharge  any  judg- 
ment entered  on  appeal,  and  appellee  ob- 
structed the  entrances  to  appellant's  place 
of  business  and  cut  off  his  light,  heat  and 
water,  rendering  the  place  unfit  for  occupa- 
tion, so  that  the  payments  could  not  be  made 
— Quandt  v.  Smith,  29  Wash.  311,  69  Pac. 
1097. 

78.  Under  Code  Civ.  Proc.  §§  612-616,  the 
supreme  court  is  not  authorized  by  the  is- 
suance of  a  writ  of  scire  facias  or  on  no- 
tice to  order  an  execution  on  a  cost  bond 
given  under  Rule  12  of  the  court  in  error 
proceedings — Dunn  v.  Bozarth  (Neb.)  90  N. 
W.   954. 

79.  The  Judgment  should  so  run  where 
the  fiat  for  a  supersedeas  bond  on  writ  of 
error  required  a  bond  for  judgment,  inter- 
est and  costs — Taylor  v.  Wells  (Tenn.)  69 
S.  W.   266. 

80.  Ackerman  v.  People,  100  111.  App.  125. 


1.  See  Default,  Bail  in  Civil  Actions,  Jus- 
tices of  the  Peace,  Pleading. 

2.  Burnham  v.  Lewis  (Kan.)  70  Pac.  337. 
To  move  to  vacate  appraisement  of  realty 
for  a  judicial  sale,  and  to  object  to  confir- 
mation on  grounds  not  going  to  jurisdic- 
tion over  the  party. — Nebraska  L.  &  T.  Co. 
V.  Kroener  (Neb.)  88  N.  W.  499.  Appear- 
ance in  attachment  to  contest  right  to  amend 
the  affidavit — Burnham  v.  Lewis  (Kan.)  70 
Pac.  337.  To  obtain  a  copy  of  the  com- 
plaint and  to  secure  costs,  under  Mills'  Ann. 
Code  Colo.  §  45 — Brockway  v.  W.  &  T.  Smith 
Co.  (Colo.  App.)  66  Pac.  1073.  Asking  to 
be  made  defendant  to  object  to  a  confirma- 
tion of  sale  in  foreclosure,  and  objecting  on 
the  ground  of  ownership  and  failure  in 
service  of  summons  upon  himse.^  and  an- 
other— Nelson  V.  Nebraska  L.  <S-  T.  Co.,  62 
Neb.  549.  To  set  aside  a  judgment  by  de- 
fault for  failure  to  answer — Thompson  v. 
Alford,   135  Cal.   52.   66   Pac.   983.' 

To  plead  or  answer  to  merits — McClure 
V.  Paducah  Iron  Co.,  90  Mo.  App.  567;  Gal- 
veston, H.  &  S.  A.  R.  Co.  V.--  Baumgarten 
(Tex.  Civ.  App.)  72  S.  W.  78;  Walters  v. 
Field  (Wash.)  70  Pac.  66.  San  Diego  Sav. 
Bank  v.  Goodsell.  137  Cal.  420,  70  Pac.  299.  To 
assail  a  suit  on  the  ground  that  attachment 
was  sued  out  on  Sunday,  and  to  enter  a 
denial  of  the  attachment,  and  plead  in 
reconvention — Benchoff  v.  Stephenson  (Tex. 
Civ.  App.)  72  S.  W.  106.  By  defendant  in 
divorce  to  contest  the  right  to  custody  of 
the  children — Abercrombie  v.  Abercrombie, 
64  Kan.   29,   67  Pac.  539. 


202 


APPEARAN'CE. 


jurisdictional  defects  and  for  personal  right  to  be  sued  in  another  county;'  or 
appearance  by  one  not  served  with  process  to  ask  for  vacation  of  a  decree  on  the 
ground  of  failure  of  jurisdiction,  of  fraud,  and  of  insufficiency  of  evidence.*  An 
answer  of  several  defendants  without  name,  making  no  reference  to  one  who  was 
not  served,  is  an  answer  of  those  served  only,  and  will  not  give  jurisdiction  of 
the  one  not  served  as  a  voluntary  appearance.*  Voluntary  appearance  and  tender- 
ing of  issue  bv  defendant  in  the  main  action  and  an  attachment  in  aid,  and 
the  filing  of  a  bond  to  perform  the  judgment,  is  a  submission  of  the  person  to 
the  jurisdiction,  entitling  plaintiff  to  personal  judgment.' 

Xeither  filing  a  petition  to  remove  a  cause  from  a  state  to  a  federal  court," 
nor  appearance  of  defendant  to  raise  the  question  of  jurisdicrion,®  nor  appear- 
ance in  attachment  to  move  to  quash,'  nor  an  appearance  specially  to  move  to 
dismiss  for  failure  to  issue  summons  within  thirty  days  after  filing  the  complaint, 
.operates  as  a  general  appearance  waiving  summons  or  defects  therein.^"  A  de- 
mand by  defendant's  attorney  in  attachment,  that  plaintiff's  attorney  should  de- 
clare plaintiff's  residence,  or  the  giving  of  a  notice  of  a  motion  to  strike  out  an 
order  of  the  court  validating  the  sheriff's  return,  where  the  invalidity  was  urged 
on  the  motion  to  quash,  does  not  amount  to  a  general  appearance,  though  follow- 
ing a  special  appearance  to  quash.^^ 

Appearance  to  testify  as  a  witness  is  not  an  appearance  in  the  acrion.^* 

Appearance  by  a  foreign  corporation  to  object  to  the  jurisdiction  is  held  in 
Texas  an  appearance  to  the  next  term  of  couxt.^' 

A  subsequent  plea  to  the  merits  by  defendant  is  an  appearance  waiving  the 
improper  ovemiling  of  a  previous  motion  to  dismiss  for  want  of  jurisdiction  of 
parries.^*  Filing  a  demurrer  and  plea  to  the  declaration,  after  a  motion  to  quash 
service  is  overruled,  is  an  entry  of  appearanc-e,  and  waives  defects  in  process  and 
service,^'  though  not  the  right  to  object  to  the  ruling  on  appeal.^'  A  motion  for 
a  continuance  by  a  defendant  corporation,  after  entry  of  special  appearance  to 
object  to  the  jurisdiction  on  an  application  for  a  receiver,  which  objection  was 
overruled,  is  a  demurrer  as  well  as  a  motion  affecting  the  jurisdiction,  and  operates 
as  a  full  appearance,  waiving  all  objections  to  jurisdiction.^'  A  motion  to  dis- 
miss a  bill  is  a  general  defense,  in  the  nature  of  a  demurrer,  and  is  such  an 
appearance  as  will  waive  a  motion  to  vacate  service  of  snbpoena  on  the  ground 
that  the  teste  antedates  the  filing  of  the  bill.^*  An  agreement  between  parties 
that  a  premature  overruling  of  a  motion  to  dismiss  may  be  set  aside  to  have 
the  case  heard  on  its  merits  is  not  a  general  appearance  by  defendant,  but  makes 
it  necessary  for  the  court  to  overrule  the  order  and  retain  the  case.*' 

An  appeal  amounts  to  an  appearance  so  as  to  permit  the  court  below  on  re- 
versal to  proceed  with  the  ease,^  and.  in  Kentucky,  though  the  service  of  pro- 


3.  Dudley  v.  "^Vhite   (Fla.)   31  So.  830. 

4.  Henry  v.  Henry,   15  S.  D.   80. 

5.  MuUins  V.   Rieser.    169  Mo.    521. 

6.  Xew   Albany   Mfg.    Co.    v.    Sulzer    (Ind. 
App.)    63  X.  E.   873. 

7.  Coombs  V.  Parish.  6  Colo.   296. 

8.  EvansvlUe  Grain  Co.  v.  Mackler,  8S  Mo. 
App.   186. 

9.  Franklyn  v.  Taylor  Hydraulic  Air  Com- 
pressing Co.'(N.  J.)   52  AtL  714. 

10.  t7nder   Code    Colo.   §5   30,    396 — Coombs 
V.  Parish.   6  Colo.   296. 

11.  Franklvn    v.    Taylor    Hydraulic    Air 
Compressing  Co.  (N.  J.)  52  Atl.  714. 

12.  Commercial     State     Bank     v.     Rowley 
(Neb.)    S9  N.  W.  765. 


13.  Westlnghonse  Electric  &  Mfg.  Co.  v. 
TroeU    (Tex.   CM  v.  App.)    70  S.  VT.  324. 

14.  Franklin  Life  Ins.  Co.  v.  Hickson,  97 
ni.  App.  387.  Cf.  Walters  v.  Field  (Wash.) 
70  Pac  66. 

15.  Franklin  Life  Ies.  Co.  v.  Hickson,   197 

ni.  117. 

16.  American  Mut.  Life  Ins.  Co.  v.  Mason 
(Ind.)   64  N.  B.  625. 

17.  (Jhicago  &  S.  E.  R.  Co.  v.  Kenney 
(Ind.)    62   N.   E.    26. 

18.  Van  Dyke  v.  Van  Dyke  (X.  J.  Ch.) 
49  AtL  1116. 

19.  Evansville  Grain  Co.  v.  Mackler.  SS 
Mo.  App.  186. 

30.  "^ylly  V.  Sanford  L.  &  T.  Co.  (Fla.) 
33  So.   453. 


APPEARANCE. 


203 


cess  is  insufficient,  the  appeal  amounts  to  a  general  appearance  ;^^  however,  in 
Wisconsin,  a  general  appeal  from  the  whole  judgment  will  not  cure  lack  of  per- 
sonal service  on  defendant. '^^  Prosecution  of  an  appeal  for  a  defendant  cor- 
poration is  such  an  appearance  that,  on  return  of  the  case  to  the  trial  court,  ob- 
jections to  the  jurisdiction  on  the  former  hearing  are  waived.^^  In  Ohio,  where 
defendant  has  made  reasonable  objection  to  the  jurisdiction  over  him,  his  sub- 
sequent plea  to  the  merits  does  not  waive  objections  to  the  jurisdiction,  nor  does 
his  filing  petition  in  error  amount  to  a  general  appearance.^*  In  the  federal 
courts,  a  plea  signed  by  counsel,  raising  an  issue  which  is  apparent  on  the  face 
of  the  bill,  will  be  considered  an  appearance  for  that  purpose  only.^^  A  special 
appearance  is  not  made  general  by  perfecting  an  appeal.^*^ 

Agreement  to  a  continuance  of  a  suit  before  a  justice  is  an  appearance  con- 
ferring jurisdiction  of  a  person. ^^  Application  before  a  city  police  court  for 
a  change  of  venue  in  a  prosecution  to  recover  a  penalty  for  violation  of  a  city 
ordinance  is  a  voluntary  submission  to  the  jurisdiction.^*  Where  defendants  de- 
faulted during  term  time  and  afterwards  stipulated  with  plaintiff  extending  the 
time  for  them  to  act  in  the  case,  judgment  will  be  entered  on  subsequent  failure 
to  plead,  though  the  service  of  process  on  them  was  defective.^® 

§  2.  Who  may  make  or  enter. — Appearance  of  plaintiff's  attorney  in  court 
after  entry  and  payment  of  judgment,  when  a  motion  was  made  by  defendant  to 
retax  costs  without  further  process,  will  not  give  jurisdiction  of  plaintiffs.^**  An 
answer  by  the  guardian  of  an  insane  person  constitutes  an  appearance  for  the 
latter,  giving  jurisdiction  of  his  person.^^  Wliere  a  firm  having  goods  of  another 
is  garnished,  and  one  partner  is  served,  the  other  may  appear  voluntarily  and 
waive  service  of  process  on  himself.*-  A  county  attorney  may  waive  issuance 
nnd  service  of  summons  in  error,  though  he  has  appeared  in  the  case  against 
the  county  at  the  trial.** 

§  3.  Effect. — General  appearance  amounts  to  a  waiver  of  notice  or  process,** 
and  an  appearance  for  any  other  purpose  than  the  quashing  of  process  waives  any 
defects  in  process  or  service  thereof,*^  especially  if  objection  to  service  be  with- 
held until  too  late  to  sue  anew.*® 

It  waives  any  mistake  of  the  clerk  in  making  the  summons  returnable  to  the 
wrong  term,*^   or  a  statutory  defect  in  summons  in  that   a  complaint  was  not 


21.  Louisville  &  N.  R.  Co.  v.  Chestnut  & 
Co.    (App.)    24  Ky.  Law  R.  1846. 

22.  Under  Rev.  St.  1898,  §  2891,  requiring 
personal  service  to  give  the  clerk  juris- 
diction to  enter  a  default  judgment  out  of 
term — Electric  Appliance  Co.  v.  Warren 
(Wis.)    91  N.  W.   970. 

23.  Louisville  &  N.  R.  Co.  v.  Jordan,  23 
Ky.  Law  R.  1730. 

24.  Baltimore  &  O.  R.  Co.  v.  Freeman 
(C.  C.  A.)    112  Fed.   237. 

25.  The  strict  rules  of  the  common  law 
as  to  substantial  issues  regarding  jurisdic- 
tion are  not  applied  in  the  federal  courts, 
but  such  issues  may  be  raised  by  parties  or 
counsel  by  plea,  motion,  or  suggestion — 
Jenkins  v.  York  Cliffs  Imp.  Co.,  110  Fed.  807. 

26.  White  House  Mtn.  G.  M.  Co.  v.  Powell 
(Colo.)    70   Pac.   679. 

27.  Kirkpatrick  Const.  Co.  v.  Central 
Electric  Co.  (Ind.)  65  N.  E.  913. 

28.  In   re  Jones,   90  Mo.   App.   318. 

29.  Cook  V.  American  Exch.  Bank,  129 
N.  C.   149. 

30.  Iowa  Sav.  &  Loan  Ass'n  v.  Chase 
(Iowa)  91  N.  W.  807. 


31.  Under  Code  Civ.  Proc.  Cal.  §  1769,  pro- 
viding for  representation  of  insane  persons 
by  their  guardians — Mullen  v.  Dunn,  134  Cal. 
247,    66    Pac.    209. 

32.  Marx  v.  Hart,   166  Mo.  503. 

33.  Dakota  County  v.  Bartlett  (Neb.)  93 
N.  W.   192. 

34.  Kilmer  v.  Gallaher  (Iowa)  88  N.  W. 
959.  Filing  demurrer — Fitzgerald  v.  Foster, 
11  Okl.  558,  69  Pac.  878. 

35.  Baker  v.  Union  Stock  Yards  Nat. 
Bank    (Neb.)    89    N.    W.    269. 

General  appearance  and  answer — McCor- 
mick  Harvesting  Mach.  Co.  v.  Scott  (Neb.) 
89  N.  W.  410;  Cone  v.  Cone,  61  S.  C.  512. 
Consent  to  continuance  before  a  motion  to 
quash — New  River  Mineral  Co.  v.  Painter 
(Va.)  42  S.  E.  300.  Motion  to  set  aside  de- 
fault for  failure  to  plead — Barra  v.  People 
(Colo.  App.)  69  Pac.  1074.  Waiver  of  ex- 
emptions— English  V.  English,  19  Pa.  Super. 
Ct.  586. 

36.  Fosha  V.  Western  Union  Tel.  Co.,  114 
Fed.    701. 

37.  Patterson  v.  Yancey  (Mo.  App.)  71 
S.   W.  845. 


204 


APPEARANCE. 


served  vrith.  it.'*  Persons  appearing  in  proceedings  to  probate  a  will  cannot  ob- 
ject to  insufficiency  of  the  notice.^®  Appearance  by  an  administrator  to  set  aside 
a  default  against  the  estate,  entered  after  his  substitution  in  place  of  his  decedent, 
waives  any  objection  to  jurisdiction  in  the  first  instance  over  decedent.*"  Appear- 
ance by  defendant  in  replevin  to  contest  the  merits,  and  entry  of  judgment  against 
him  awarding  possession  to  plaintiff,  will  waive  objections  to  jurisdiction  on  the 
ground  that  the  constable  was  not  directed  in  writing  to  seize  the  property  in 
the  first  instance.*^  A  general  appearance  by  a  foreign  corporation  in  a  justice's 
court  without  objection,  after  the  overruling  of  a  special  appearance  and  a  motion 
to  quash  service,  gives  the  justice,  and  the  district  court  on  appeal,  jurisdiction  to 
render  judgment  against  the  corporation.*' 

Xo  subpoena  is  necessary  on  an  amended  libel  in  divorce  where  a  subpoena 
issued  and  was  served  on  the  original  libel,  and  respondent  entered  his  appear- 
ance, answered  the  amended  libel,  and  went  to  trial.*'  Where  defendants  appear 
generally  without  citation,  they  waive  objection  that,  because  of  procedure  and 
amended  pleadings,  such  action  is  a  new  action:**  and  appearance  at  subsequent 
terms,  and  consent  to  continuance  of  two  of  four  causes  of  action  remaining 
after  judgment  upon  the  others,  waives  objections  to  jurisdiction  for  want  of 
new  process.*' 

Where  there  is  jurisdiction  of  the  subject-matter,  an  appearance  and  answer 
over  by  defendant  waives  any  objection  he  may  have  to  jurisdiction  of  the  person.*' 
AVhere  an  absent  and  nonresident  defendant  appears  generally,  in  an  attachment 
sued  out  against  him  in  an  action  at  law,  personal  judgment  may  be  given  against 
him,  either  with  or  without  an  order  subjecting  the  attached  property,  though 
there  has  been  no  publication.*"  By  pleading  to  the  action  a  party  sued  out  of 
the  jurisdiction  of  the  court  waives  the  right  to  object  on  that  ground.*^  The  statu- 
tory privilege  that  railroad  companies  can  only  be  prosecuted  in  the  county  where 
plaintiff  resides  is  personal,  and  defendants  voluntary  appearance  waives  the  privi- 
lege.*' 

A  full  appearance  by  defendants  will  not  prevent  them  from  urging  limita- 
tions to  part  of  the  causes  of  action  which  were  urged  in  a  new  cause  of  action 
to  which  they  appeared  by  answer.^"  A  motion  to  release  attached  property  on 
the  ground  that  the  attachment  is  unlawful  may  be  made  after  general  appearance 
by  defendant.*^  Where  defendant,  in  a  suit  for  divorce  and  temporary  alimony, 
entered  a  general  appearance  on  the  day  preceding  the  hearing  on  the  motion  for 
alimony,  and  obtained  a  three  days'  continuance  of  the  motion,  he  did  not  waive 
his  right  to  apply  for  change  of  venue  on  the  subsequent  day,  where  the  applica- 
tion was  his  first  pleading,  and  the  motion  was  heard  on  affidavits  alone.'- 

Special  appearance. — An  appearance  to  move  a  stay  of  an  execution  issued 
on  a  void  judgment  will  not  waive  defects  in  original  service,^'  nor  will  appear- 
ance to  set  aside  a  judgment  obtained  without  valid  service  amount  to  a  submis- 


38.  Under  Code  Civ.  Proc.  N.  Y.  §  1S97 — 
Farmers'  &  Merchants'  State  Bank  v.  String- 
er.  75  App.  Div.    (N.  Y.)    127. 

39.  Flood  V.  Kerwin.   113  Wis.   673. 

40.  Moses  V.  Hoffmaster,  64  Kan.  142,  67 
Pac.    459. 

41.  Under  District  Court  Act  N.  J.  §  143 — 
Hunton  v.   Palmer,   67  N.  J.  Law,   94. 

42.  Piano  Mfg.  Co.  v.  Nordstrom  (Xeb.) 
8S   X.   "^.    164. 

43.  English  V.  English,  19  Pa.  Super.  Ct. 
686. 

44.  Southern  Pac.  Co.  v.  "SVinton  (Tex. 
Civ.  App.)  66  S.  W.  477. 

45.  Seay  v.  Sanders,   88  Mo.   App.   478. 


46.  State  V.  Cryts.  87  Mo.  App.  440:  Jones 
V.   St.  Louis  &   S.   F.   R.  Co.,   89  Mo.   App.    653. 

47.  Chilhowie  Lumber  Co.  v.  L,ance  &  Co.. 
50  TV.  Va.   636. 

4S.  Grant  v.  Birrell.  35  Misc.  (N.  Y.)  768; 
Franklin  Life  Ins.  Co.  v.  Hickson,  97  IlL  App. 
387. 

49.  Under  Gen.  Laws  Tex.  1901,  p.  31 — 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Baumgarten 
(Tex.    Civ.   App.)    72    S.   W.    78. 

60.     Bernard  v.  Mott,   89  Mo.  App.   403. 

51.  Sullivan  V.  Moffat    (X.   J.)    52  Atl.   291. 

52.  People  v.  District  Court  of  Second  Ju- 
dicial District   (Colo.)    69  Pac.   597. 

53.  TVren  v.  Johnson,   62  S.  C.   533. 


ARBITRATION  AND  AWARD. 


205 


sion  to  jurisdiction  of  the  person."*  A  special  appearance  to  contest  the  juris- 
diction of  the  court  over  the  person  of  defendant  will  allow  a  contest  of  the  suffi- 
ciency of  the  affidavit  for  publication."*"  Removal  of  a  cause  into  the  federal 
court  will  not  prevent  subsequent  objection  to  the  sufficiency  of  service/^  and 
the  filing  of  a  petition  and  bond  for  removal  by  a  corporation,  as  defendant,  is 
not  such  an  appearance  as  will  prevent  a  motion  to  set  aside  defective  service,  even 
though  the  motion  was  in  the  state  court  before  removal,  and  not  acted  upon."^ 

§  4.  Relief,  striking,  or  withdrawal. — Withdrawal  by  defendant  of  appear- 
ance entered  by  mistake  with  the  court's  leave,  while  relieving  him  from  a  waiver 
of  objections  to  the  jurisdiction,  does  not  authorize  objection  to  the  service  on 
mere  matters  of  form."^  Withdrawal  of  appearance  by  defendant  and  motion  to 
set  aside  summons  may  be  allowed  where  the  nature  of  the  action  was  not  fixed 
Dy  service  of  the  complaint."* 

ARBITRATION  AND  AWARD. 


§  1.     The  Remedy  In  General. 

§  2.  The  Submisision  and  Agrreements  to 
Submit. 

§  3.     The  Arbitrators  and  Umpire. 

§  4.  Hearing  and  Procedure  before  Arbi- 
trators. 


§  6.  The  Award.— Validity;  Enforcement; 
Review. 

§  6.     International  Disputes. 

§  7.  Statutory  Arbitration  betireen  em- 
ployers and  E}mployes. 


This  topic  does  not  include  submission  to  a  referee,^  or  to  a  tribunal  on  agreed 
statements  of  rights  or  demands  by  parties,^  or  particular  provisions  in  insurance 
policies  for  arbitration  of  loss.' 

§  1.  The  remedy  in  general. — Statutory  arbitration  is  cumulative  merely, 
and  controversies  capable  of  submission  by  parol  agreement  may  still  be  submit- 
ted as  at  common  law.* 

§  2.  The  submission  and  agreements  to  submit. — A  provision  for  submission 
of  future  differences  in  a  contract  will  not  bar  an  action  thereon,®  and,  if  joined 
with  a  provision  not  to  bring  suit  on  the  contract,  will  render  the  agreement  void 
as  invading  the  province  of  the  courts;'^  but  mere  provisions  that  questions  of 
difference  between  the  parties  should  be  settled  by  certain  persons  are  not  void, 
since  they  simply  prescribe  such  determination  as  a  condition  precedent  to  suit 
by  either  party,^  and,  until  an  award  or  discharge  of  the  arbitrators,  no  suit  can 
be  brought.*  A  condition  in  a  bill  of  sale  after  an  express  agreement  for  pay- 
ment, providing  for  arbitration  of  a  dispute  regarding  the  charging  of  expenses, 
does  not  make  an  award  a  condition  precedent  to  action;  and  a  provision  that 
failure  of  either  party  to  appoint  an  arbitrator  will  authorize  the  other  to  ap- 
point will  not  prevent  a  revocation  of  the  arbitration  agreement.*" 

A   submission  in  court  or  by  agreement,  providing  for  entry  of  the  award 


54.  Wren  v.  Johnson,  62  S.  C.  533. 

55.  Columbia  Screw  Co.  v.  Warner  Lock 
Co.    (Cal.)    71   Pac.   498. 

56.  Conley    v.    Mathieson    Alkali    Works, 

110  Fed.   730. 

57.  Tortat    v.    Hardin    Min.    &    Mfg.    Co., 

111  Fed.   426. 

58.  Jenkins  v.  York  Cliffs  Imp.  Co.,  110 
Fed.   807. 

59.  Action  for  penalty  for  not  making-  cor- 
porate report.  Defendant  could  not  attack 
the  summons  until  the  nature  of  the  action 
was  disclosed — Farmers'  &  Merchants'  State 
Bank  v.  Stringer,  75  App.  Div.  (N.  Y.)   127. 

1.  Reference. 

2.  Submission  of  controversy. 

3.  Insurance. 


4.  Poggenburg  v.  Conniff,  23  Ky.  Law 
Rep.  2463,  67  S.  W.  845;  Gardner  v.  New- 
man,  135  Ala.    522. 

6.  Turner   v.   Stewart,    51   W.   Ma.    493. 

7.  Adjustment  of  insurance  loss  or  dam- 
ages on  breach  of  policy — Phoenix  Ins.  Co. 
V.  Zlotky  (Neb.)  92  N.  W.  736;  Hartford 
Fire  Ins.  Co.  v.  Hon   (Neb.)   92  N.  W.   746. 

8.  Submission  of  questions  of  payment 
on  building  contract  to  engineers  in  charge 
of  work — National  Contracting  Co.  v.  Hudson 
River   Water   Power   Co.,    170   N.    T.    439. 

9.  Citizens'  Trust  &  Surety  Co.  v.  Howell, 
19  Pa.  Super.  Ct.  255. 

10.  Dickson  Mfg.  Co.  v.  American  Loco- 
motive Co.,  119   Fed.   488. 


206 


ARBITRATION  AND  AWARD. 


as  JTidgment,  is  irrerocable,  and  bars  a  suit  on  any  demand  submitted;  but  it  is 
void  as  to  parties  not  joining."  Appointment  of  a  representative  by  one  of  the 
parties  to  a  contract  pnrsuant  to  its  provisions  to  settle  a  dispute  between  the  par- 
ties is  not  a  submission  to  an  arbitrator  so  as  to  make  an  award  by  him  binding 
on  his  superior  until  set  aside  in  l^al  proceedings." 

§  3.  The  arbitrators  and  umpire. — ^Members  of  an  ecclesiastical  court  may 
act  as  arbitrators,  and  their  award  will  be  binding  in  the  civil  courts.**  A  mere 
agent  to  compromise  is  not  &n  arbitrator.**    The  arbitrator  must  be  sworn.*' 

§  4-  Hearing  and  procedure  before  arbitrators. — ^The  arbitrator  must  hear 
all  the  facts,  but  he  need  not  consider  admi^ons  by  parties  not  relating  to  their 
differences.**  Where  the  issues  are  simple,  or  involve  matters  concerning  which 
the  arbitrators  are  experts,  they  may  refuse  to  hear  counsel  at  their  discretion;** 
and  one  going  into  an  arbitration  waives  objection  for  want  of  oath  of  the  arbi- 
trators and  failure  to  admit  counseL*' 

§  5.  The  award;  requisites,  validity,  and  eifeH  of  award. — The  award  must 
be  certain  as  to  an  amount  of  money  to  be  paid,**  and  is  not  conclusive  as  to 
matters  not  submitted,**  and  may  be  set  aside  as  to  such  matters.**  It  need  not 
be  treated  as  an  adjudication,  where  the  dispute  was  submitted  informally,  and 
the  award  received  by  one  party,  but  afterwards  returned  to  the  other.**  If  an 
award  is  void  or  not  mutual  as  to  one  party,  it  cannot  prejudice  him,**  but,  if 
void  in  part  for  uncertainty,  it  may  be  sustained,  where  separable,  by  rejecting 
the  void  part  as  surplusage.** 

I7nless  the  submission  contains  stipulations  or  shows  a  conclusive  intent  that 
the  parties  should  be  bound  by  ministerial  acts  of  the  arbitrator,  his  decision  in 
such  matters  is  not  finaL*'  A  finding  that  a  person  employed  as  a  derk  may 
bind  his  employer  by  accepting,  for  his  principal,  a  void  transaction  arranged  by 
himself,  is  a  wrong  on  the  parties.  If  the  arbitrators  overstep  the  bounds  of  the 
submission  or  disregard  the  facts  or  rules  thereof,  either  willfully  or  ignorantly, 
through  good  or  bad  motives,  the  award  may  be  set  aside  by  the  injured  party.** 

The  parties,  and  all  claiming  under  them,  are  bound,**  in  the  absence  of 
fraud  or  mistake,  and  the  successful  party  is  entitled  to  judgment  if  the  award 
follows  the  judgment.** 

An  award,  in  an  oral  submi^on,  of  rights  in  real  property,  is  not  a  transfer. 


11.     Tamer  v.  Stewart.  51  "W.  Va.  49S. 

1&  Asent  appointed  to  settle  dispute  as 
to  sale  of  lumber — ^^VilUamson  v.  North 
Pac  Lumber  Co.  (Or.)  TO  Pac  3S7. 

13.  Poggenburg  v.  Conniff.  23  Ky.  Lair 
Rep.  2463.  67  S.  W.  845. 

14.  Williamson  v.  North  Pac  Lumber  Co. 
(Or.)   70  Pac  387. 

Amicable    compounder — L.    J.    Mestier 
V.  A  Chevalier  Pavement  Co.,  10  S  Z^s.. 


Amicable    compounder — L.    J.    Me^zier 
V.  A.  Chevalier  Pavement  Co.,  108  La. 


IS. 

&  Co. 
552. 

16. 
*  Co. 
S62. 

IT.  Pennsylvania  Iron  Works  Co.  v.  Eas: 
St.  Louis  Cold  Storage  Co.  (Mo.  App.)  71 
S.  W.   903. 

18.     Gardner  v.  Jfewman,  135  Ala.  oZZ 

19l     Atrard    for    support    of    a    bas::r'  — 
Pog^enburg    ▼.    Conniff.    23    Ky.    Law    ?.    : 
2463.  67  S.  E-  845. 

atL  Award  as  to  claim  on  gambling  ; : ;  - 
tract  not  submitting  legality  of  contri:.— 
Lorn  ▼.  Fauntleroy.  80  Miss.  757. 


Zl.  The  effect  of  a  first  contract  between 
the  parties,  which  iras  follo^red  by  a  sec- 
ond contract  relating  to  the  same  subject- 
matter,  cannot  be  settled  by  the  arbitrator 
where  such  effect  w^is  not  submitted  in  the 
arbitration — Cullen  ▼.  Shipway.  78  App.  Div. 
(N.  T.)   130. 

22.  Phipps  V.  Norton  (Iowa)  93  X.  ■^. 
56S. 

23.  Turner  v.  Stewart,  51  W.  Va.  4S3. 

24.  For  damages  and  support  of  bastard 
— ?  :  r^^zb urg  v.   ConnifE,    23    Ky.   Law^   Rep. 

-   ?    ~.  845. 

7    -    —  inisterial    acts,    such   as   calcn- 

r;      r  -    r.  r -surements,  are  not  necessa- 

7    - :    -  r      .    ;  7   the  arbitrator — ^Xels»n  ▼. 

:.^s    Zi:;iLrr    Lumber  Co.    (Minn.)    93   N. 

:;;.     The  wrong  cannot  be  attributed  to  a 
-     r^  error  of  judgment — ^Bartlett  v.  Lu  Bart- 
::  <S:  Son  Co.  (^Vis.)  93  N.  VF.  473. 
2T.     Home  V.   Hutchins.    71  N.  H.   128. 
2>^.     Corrlsa-    t.   Rockefeller   (Ohio)   66  N 


ARBITRATION  AND  AWARD. 


207 


within  the  statute  of  frauds,  but  a  mere  definition  of  already  existing  rights.^' 
The  award  on  a  claim  for  alimony  and  other  pecuniary  demands  by  a  wife  amounts 
to  an  alimony  decree.^"  A  common-law  award  is  established  by  showing  an  agree- 
ment to  submission  and  the  proceedings  thereon.^^  The  award  is  not  a  lien 
on  land  until  entered  as  a  judgment  or  decree  after  notice  to  the  parties,  but 
retains  its  common-law  force,  though  by  statute  it  may  be  entered  as  a  judg- 
ment.^^  A  decree  will  not  merge  with  an  award  on  the  same  cause  of  action; 
but  a  judgment  made  subject  of  submission  will  be  merged  by  the  award,  though 
not  carried  into  a  new  judgment.^^  A  lien  for  ser^dces  in  favor  of  one  party 
against  a  fund  to  be  realized  by  the  other  from  such  services  is  not  merged  in 
an  award  settling  the  value  of  the  services,  but  may  be  enforced  to  the  extent  of 
the  award.^* 

Enforcement  of  aivard. — In  an  action  to  enforce  the  award,  it  need  not  be 
alleged  that  the  judgment  of  the  arbitrators  was  still  in  force.^^  In  a  suit  to 
determine  the  rights  of  grantees  in  the  subject  of  a  submission  by  their  grantors, 
the  arbitration  may  be  shown.^®  In  an  action  on  a  contract  containing  an  arbi- 
tration clause,  the  interest  of  an  arbitrator  and  the  plaintiff's  knowledge  of  such 
interest  are  questions  for  the  jury,  and  the  burden  of  proof  is  on  plaintiff  to 
show  such  interest.^^  All  presumptions  will  be  indulged  to  sustain  an  award. ^^ 
Parol  evidence  is  admissible  to  show  the  application  of  the  award  to  the  subject- 
matter.^® 

Review  of  award  and  rearhitration. — Equity  will  not  review  on  its  merits  an 
award  rendered  by  an  arbitrator  consistently  with  legal  principles  as  he  under- 
stood them.*"  Neither  denial  of  right  to  counsel  nor  refusal  to  be  sworn  consti- 
tutes such  fraud  on  the  part  of  the  arbitrators  as  will  vitiate  the  award,*^  unless  it 
prejudice  results;  and  even  then  the  denial  of  counsel  cannot  be  urged  on  a  mo- 
tion to  vacate  the  award  where  the  objection  had  been  waived  by  submission.*^ 
An  award  within  the  scope  of  the  submission  cannot  be  disturbed  judicially,  but 
any  departure,  misconduct,  or  error  of  judgment  on  the  part  of  the  arbitrators 
is  fatal.*^  Terms  offered  to  induce  arbitration,  which  are  fully  understood,  can- 
not be  ground  of  fraud  to  set  aside  the  award,**  Under  an  agreement  to  have  an 
award  entered  as  a  judgment,  acceptance  of  service  of  a  motion  to  that  effect 
and  agreement  to  its  adoption  will  not  waive  the  right  to  benefit  of  the  statutory 
provision  that  the  entry  must  be  made  at  the  succeeding  term;  and  the  arbitra- 
tion, being  void,  may  be  set  aside.*^ 


29.  Submission  of  rights  to  water  power 
— Home  V.  Hutchins.  71  N.  H.  128. 

30.  The  arbitrators  had  full  power,  and 
the  parties  had  previously  agreed  to  accept 
the  result — Harris  v.   Davis,  115  Ga.   950. 

31.  Unless  fraudulent,  it  is  as  effectual 
in  a  subsequent  suit  on  the  same  claim  as 
a  statutory  arbitration,  and  may  be  pleaded 
In  bar  without  showing  statutory  require- 
ments— Gardner   v.    Newman,    135    Ala.    522. 

32.  Code  W.  Va.  c.  108,  §  3 — Turner  v. 
Stewart,   51  W.  Va.   493. 

33.  Turner  v.  Stewart,  51  "W.  Va.   493. 

34.  Sanborn  v.  Maxwell,  18  App.  D.  C.  245. 

35.  Poggenburg  v.  Conniff,  23  Ky.  Law 
Rep.    2463,    67    S.   W.   845. 

36.  Right  of  mill  owners  in  dam — Home 
V.  Hutchins,   71  N.  H.   128. 

37.  Hall  V.  Western  Assur.  Co.,  133  Ala. 
637. 

38.  It  will  be  presumed  that  it  related  to 
the  matters  submitted,  and  that  the  evidence 


was  heard  on  them — Poggenburg  v.  Conniff, 
23  Ky.  Law  Rep.  2463,  67  S.  W.  845. 

39.  Use  of  dam  granted  by  award  to  mill 
owners — Home  v.  Hutchins,  71  N.  H.  128. 

40.  Code  Civ.  Proc.  N.  Y.  §§  2374,  2375, 
provides  that  fraud,  corruption,  or  mistake 
is  the  only  ground  of  attack  on  an  award 
— Dobson  V.  Central  R.  Co.,  38  Misc.  Rep. 
(N.  Y.)    582. 

41.  Gardner  v.  Newman,  135  Ala.   522. 

42.  Pennsylvania  Iron  Works  Co.  v.  East 
St.  Louis  Cold  Storage  Co.  (Mo.  App.)  70  S. 
W.  903. 

43.  Bartlett  v.  L.  Bartlett  &  Son  Co. 
(Wis.)    93   N.   W.    473. 

44.  Insurance  loss — Townsend  v.  Green- 
wich Ins.  Co.,  39  Misc.  Rep.  (N.  Y.)  87;  Same 
V.  Continental  Ins.  Co.,  Id.;  Same  v.  Hanover 
Fire    Ins.    Co.,    Id. 

45.  Arbitration  of  rights  to  property  as 
between  husband  and  wife — Crouch  v. 
Crouch   (Tex.  Civ.  App.)   70  S.  W.  595. 


208 


ARBITRATION  AND  AWARD. 


A  plea  of  partiality  on  the  part  of  the  arbitrators  must  show  that  rights 
granted  to  the  adverse  party  were  denied  the  pleader.*^  An  opinion  delivered 
to  counsel  of  the  parties,  on  rendition  of  the  award,  citing  reasons  for  the  deci- 
sion, but  not  made  a  part  of  the  award  or  referred  to  therein,  and  not  required 
by  the  submission,  cannot  be  used  as  evidence  to  impeach  the  award;  nor  can 
the  testimony  of  the  rbitrators  be  used.*^  A  judgment  setting  aside  an  award 
may  properly  enjoin  the  removal  of  money  deposited,  pending  a  hearing  by  one 
party  to  pay  the  claim  of  the  other  if  he  is  successful.*^  An  agreement  to  se^ 
aside  an  award  and  have  a  rearbitration  is  binding,  though  no  rearbitration  is  had.*^ 

§  6.  International  disputes. — The  claims  of  a  United  States  railroad  com- 
pany against  a  foreign  government  for  revocation  of  a  concession  to  build  a  road 
were  submitted,  by  agreement  under  a  special  law  of  the  foreign  state,  to  arbi- 
tration by  a  special  commission,  which  was  given  power  to  determine  its  own 
procedure,  to  examine  the  property  and  records  of  the  company,  to  take  testimony, 
and  to  settle  the  amount  of  indemnity  to  the  company,  and  it  was  agreed  that 
the  award  should  be  final.  Under  this  agreement  the  award  was  made,  and  on  re- 
view by  the  circuit  court  of  appeals  it  was  held:  (1)  That  the  matters  to  be 
considered  and  included  in  the  award  were  to  be  settled  by  the  commission,  the 
presumption  being  in  favor  of  the  award  unless  excess  of  power  was  shown; 
(2)  that  the  commission  was  empowered  to  consider,  in  awarding  indemnity  to 
the  company,  other  expenses  incurred  by  it  in  the  enterprise,  as  well  as  cost  of 
construction,  such  as  the  amount  paid  for  the  concession,  salaries  paid  to  its  offi- 
cers, and  its  office  and  traveling  expenses;  (3)  that,  in  absence  of  an  express  pro- 
vision, the  submission  could  not  be  construed  to  require  a  unanimous  decision, 
and,  the  commission  having  unanimously  determined  that  all  matters  should  be 
settled  by  a  majority  vote,  a  majority  award  was  binding;  (4)  that  the  resigna- 
tion of  one  member  after  many  items  had  been  considered  and  agreed  upon,  and 
Just  before  the  taking  of  the  final  vote,  by  a  letter  to  his  government  and  his 
colleagues,  which  was  not  shown  to  have  been  received  or  accepted  by  his  govern- 
ment, did  not  create  a  vacancy  on  the  commission,  or  terminate  its  existence,  or 
affect  its  award  made  the  same  day  by  concurrence  of  all  the  other  members; 
(5)  that  a  provision  in  the  submission  for  allowance  and  assessment  of  expenses 
of  the  commission  did  not  include  attorney's  fees  for  one  party,  to  be  paid  by 
the  other;  and  (6)  that,  the  submission  making  no  provision  for  interest  on  the 
.iward,  and  the  company  having  received  the  revenues  of  the  road  until  settle- 
ment, interest  could  not  be  allowed,  but  the  erroneous  allowance  thereof  did  not 
avoid  the  whole  award,  the  items  being  separable.^" 

§  7.  Statutory  arhitration  between  employers  and  employes.^'^ — Labor  differ- 
ences may  be  the  subject  of  statutory  regulation.^^  Where  there  is  a  court  estab- 
lished for  settlement  of  differences  between  employers  and  employes  regarding 
wages,  a  submission  of  prices  for  certain  labor,  with  a  schedule  of  items  of  work, 
v;i]l  justify  an  award  of  a  certain  compensation  by  the  piece;  and  where  there  is 
testimony  showing  an  understanding  between  the  parties  as  to  the  time  the  deci- 
sion shall  take  effect,  the  court  may  fix  the  time,  though  it  need  not  fix  the  term, 


46.  Plea    of   denial    of   right   to    counsel — 
Gardner  v.  Newman,  135  Ala.  522. 

47.  Corrigan  v.  Rockefeller    (Ohio)    66  N. 
E.   95. 

48.  Cullen    v.    Shipway,    78    App.    Div.    (N. 
r.)   130. 

49.  Insurance      loss — Goodwin      v.      Mer- 


chants'  &  B.   Mut.   Ins.   Co.    (Iowa)    92   N.   W. 
894. 

50.  Republic  of  Colombia  v.  Cauca  Co. 
(C.  C.  A.)  113  Fed.  1020;  Cauca  Co.  v.  Re- 
public of  Colombia  (C.  C.  A.)   Id. 

51.  See,   also,  "Master  and  Servant." 

52.  Southern  Pac.  Co.  v.  Schoer  (C.  C.  A.) 
114   Fed.    466. 


ARGUMENT  OF  COUNSEL. 


209 


for  which  the  scale  of  wages  is  to  run,  especially  if  the  parties  have  fixed  the 
term  in  their  submission.  The  decision  need  not  be  rendered  within  ten  days, 
a  statutory  provision  to  that  effect  being  directory  merely.^^ 

ABGUMENT  OF  COUNSEL. 

§  1.  Right  of  argument. — Counsel  for  each  of  defendants  severally  liable 
may  be  heard.^  A  party  defending  in  person  cannot  address  the  jury  where 
his  answer  sets  up  no  defense  and  on  his  own  evidence  a  verdict  should  be 
against  him.-     If  defendants  waive  their  argument,  plaintiff  cannot  close.* 

§  3.  Opening  statements. — Counsel  may  state  what  he  purposes  to  prove  un- 
less the  proof  will  be  manifestly  incompetent.*  The  time  for  an  opening  state- 
ment is  discretionary  with  the  trial  court.^  Defendant  is  not  as  of  right  entitled 
to  reserve  his  opening  statement  to  the  conclusion  of  plaintiff's  evidence.^  Where 
facts  alleged  in  an  opening  statement  recite  a  different  cause  of  action  than  that 
in  the  petition,  trial  should  not  be  proceeded  to  over  an  objection  without  amend- 
ment of  the  petition  or  striking  of  one  of  the  causes  of  action.'^  Motions  for 
judgment  on  the  opening  statement  cannot  be  granted  unless  plaintiff  admits  facts 
absolutely  preventing  recovery.*     Defendant  in  opening  may  read  his  answer.^ 

§  3.  Kind,  extent,  and  mode  of  argument  or  comment  during  trial. — A  judg- 
ment may  be  reversed  for  misconduct  of  counsel  in  argument.^" 

Use  of  'pleadings  and  other  ivritings  belonging  to  case.^'^ — Counsel  is  not  en- 
titled to  read  special  interrogatories  to  the  jury  and  inform  them  how  to  answer 
rlaem.^^  Counsel  caimot  be  compelled  to  read  a  whole  instruction  to  the  jury.^* 
If  a  part}^s  pleadings  are  read  by  the  adverse  party,  the  party  may  adopt  his 
own  interpretation  of  them  so  long  as  they  are  not  misquoted.^* 

Statements  of  law  and  reading  from  decisions. — An  opinion  by  the  court  can- 
not be  read  in  argument,^^  or  an  opinion  in  another  ease.^®     Arguments  of  legal 


53.  Comp.  Laws  Mich.  1897,  §  563,  provid- 
ing- for  and  regulating  the  state  court  of 
mediation  and  arbitration — Pingree  v.  State 
Court  of  Mediation  &  Arbitration  (Mich.)  9 
Detroit  Leg.  News.  18;  89  N.  W.  943. 

1.  As  where  a  principal  and  surety  on  a 
bond  are  defendants — Lyman  v.  Fidelity  & 
Casualty  Co.,  65  App.  Div.  27. 

2.  Gunn  v.  Head   (Ga.)    42  S.  E.  343. 

3.  2  Ball.  Ann.  Codes  and  Statutes,  Sec. 
4993.  subd.  5 — Seattle  &  M.  R.  Co.  v.  Roeder, 
30  Wash.  244,  70  Pac.  498;  Collins  v.  Clark 
(Tex.  Civ.  App.)  72  S.  W.  97. 

4.  He  may  give  a  history  of  the  case 
and  state  other  contests  between  the  parties 
in  another  state — Pritchard  v.  Henderson 
rDel.)   3  Pen.  128. 

5.  In  the  absence  of  abuse  of  discretion, 
a  ruling  as  to  the  time  of  allowing  an  open- 
ing statement  is  not  reviewable — D.  Sinclair 
Company   v.   Waddill,    99    111.    App.    334. 

6.  Though  such  statement  will  inform 
plaintiff  of  the  error  and  enable  him  to 
amend — D.  Sinclair  Co.  v.  Waddill,  200  111. 
17. 

7.  Hunter  Milling  Co.  v.  Allen,  65  Kan. 
158    69  Pac.  159. 

S.  Coffeyville  Mining  &  Gas  Co.  v.  Car- 
ter, 65  Kan.  565,  70  Pac.  635. 

9.  It  appeared  that  plaintiff  was  not  prej- 
udiced and  the  court's  discretion  not  abused 
— Waid  V.  Hobson    (Colo.   App.)    67   Pac.   176. 

10.  Spaulding  v.  Grundy,  23  Ky.  Law  Rep. 
1759.     As  where  the  attorney  disregards  rul- 


ings of  the  court,  repeats  questions  excluded 
as  improper,  and  asks  questions  tending  to 
arouse  tha  Jury's  sympathy,  calls  them 
"boys"  in  an  appeal  for  mercy,  and  makes 
remarks  not  justified  by  the  evidence  and 
also  reflecting  on  the  person  through  whom 
plaintiff  claims — Atherton  v.  DePreeze 
(Mich.)    8  Detroit  Leg.  N.   994,   88  N.  W.   886. 

11.  Pleadings  from  other  trials  or  cases, 
see  infra  this  section. 

13.  So  held  under  March  4,  1897,  Acts 
1897,  p.  128,  Burns'  Rev.  St.  1901,  §  555.  where 
counsel  was  permitted  to  fully  argue  the 
evidence  and  with  respect  to  the  interroga- 
tories from  memory — Chestnut  v.  Southern 
Ind.   R.   Co.,   157   Ind.   509. 

13.  Ward   v.   Bass    (Ind.   T.)    69   S.  W.   879. 

14.  Nicholson  v.  Merritt,  23  Ky.  Law  Rep. 
2281. 

15 
548. 

16 
438. 


Cent.    Ga.    R.    Co.    v.    Hardin,    114    Ga. 


Stone  V.  Commonwealth,  181  Mass. 
It  was  held  error  to  allow  cases  not 
pertinent  to  any  issue  of  law  but  striking- 
ly similar  as  to  the  facts  to  be  read  to  the 
jury,  and  statements  made  to  them  that  in 
the  similar  cases  substantial  damages  had 
been  approved  and  plaintiff  found  free  from 
negligence— Houston  &  T.  C.  R.  Co.  v.  Gee, 
27  Tex.  Civ.  App.  414.  So  definitions  of 
"reasonable  time"  or  discussions  of  what 
may  be  "contributory  negligence"  cannot  be 
read — Newport  News  &  O.   P.  R.  &  Electric 


Cur.  Law — 14. 


210 


ARGUMENT  OF  COUNSEL. 


conclusions  are  not  to  be  permitted/'^  so  remarks  discrediting  the  autiioritative 
value  of  instructions  are  improper.^^  Statements  of  law  are  presumed  to  have 
been  made  in  a  connection  rendering  them  correct.^^ 

Comments  on  witnesses. — Particular  comments  on  the  credibilit}'  of  witnesses 
may  be  made,^°  though  the  jury  cannot  be  asked  to  go  outside  of  the  evidence  ;^^ 
hence,  the  interest  of  witnesses  may  be  argued."  Absence  of  witnesses  may  be 
commented  on  where  it  does  not  appear  that  their  evidence  is  not  peculiarly  within 
the  knowledge  of  the  adverse  parties.-^  Failure  to  question  a  witness  may  be 
commented  on,-*  or  the  failure  of  a  party  to  testify.-^ 

Inferences  from  the  evidence  must  be  justified.^^  An  argument  though  im- 
proper may  be  so  illogical  as  to  be  harmless.-^ 


Co.   V.   Bradford.    4   Va.   Sup.   Ct.   Rep.    219,    40 
S.  E.  900. 

17.  As  where  it  is  stated  that  a  change 
in  the  method  of  operating'  a  train  after  an 
accident  was  of  itself  a  confession  of  liabil- 
ity, and  justified  a  recovery  by  plaintiff — 
Prescott  «&  N.  W.  R.  Co.  v.  Smith,  70  Ark. 
179;  but  it  is  fair  to  assume  that  the  account 
books  of  a  decedent  are  in  the  hands  of  his 
administrator — Ryans  v.  Hospes,  167  Mo. 
342. 

18.  But  reversal  is  not  required  where  the 
remark  is  immediately  ordered  withdrawn 
and  counsel  explains  that  he  does  not  wish 
to  be  understood  as  having  such  meaning — 
Chicago  &  A.  R.  Co.  v.  McDonnell.  194  111.  82. 

19.  As  where  it  is  stated  that  an  officer 
sued  for  assault  on  service  of  a  writ,  was 
presumed  to  have  served  the  writ  in  a  legal 
way — McKinstry  v.   Collinq.    74   Vt.    147. 

20.  So  it  is  proper  to  remark  that  a  w^it- 
ness  excused  from  the  rule  should  more  than 
all  the  others  have  been  placed  thereunder 
— Louisville  &  N.  R.  Co.  v.  York.  128  Ala. 
305.  W^here  witnesses  were  brought  from  a 
distant  city  it  is  not  going  too  far  to  say 
"Would  you  have  gone  to  St.  Louis  to  get 
pimps  and  detectives?  "^^ould  you  have 
gone  to  Chicago  p,nd  employed  detectives 
of  the  Pinkerton  gang  to  have  gone  to  St. 
Louis  and  followed  through  the  hospital 
after  this  man?  There  is  but  one  man  who 
would  have  done  it  and  he  is  the  mayor  of 
the  city  of  Salem" — City  of  Salem  v.  "^'ebster. 
95  111.  App.  120.  "U^'here  in  a  deposition  the 
witness  states  his  residence  at  a  town  not 
in  existence,  such  fact  may  be  argued  as 
a  badge  of  fraud,  and  that  the  witness  was 
attempting  to  conceal  his  identity,  such 
witness  being  a  person  in  whom  the  owner- 
ship of  notes  sought  to  be  recovered  in 
bankruptcy  is  allecred  to  be — Reeder  v.  Trad- 
ers' Nat.  Bank.   28  Wash.  139.   61   Pac.  461. 

31.  "V\'here  defendant  in  his  examination 
has  denied  making  a  certain  statement  and 
is  not  impeached,  plaintiff's  attorney  cannot 
ask  the  jury  to  consider  whether  he  would 
be  apt  to  ask  such  a  question  if  it  were  not 
well  founded  and  also  to  consider  defend- 
ant's manner  when  he  answered  the  ques- 
tion— Moran  v.  Baldi.  71  N.  H.  490.  It  is 
error  to  allow  a  claim  agent  to  be  called 
a  cow  coroner  and  to  state  that  he  will 
not  be  believed  by  the  jury,  and  that  a 
particular  juror  named  having  had  dealing.-? 
with  him  knew  what  kind  of  a  ca.t  he  was 
and  would  not  believe  him — Texas  &  P.  R. 
Co.  V.  Rea.   27   Tex.  riv.  App.  549. 

23.     As  ^.vliere  counsel  states  that  if  a  wit- 


ness had  given  contrary  evidence  It  would 
have  admitted  his  gross  negligence  and  oc- 
casioned his  discharge  from  employment — 
Wimber  v.  Iowa  Cent.  R.  Co.,   114  Iowa,   551. 

23.  As  where  on  contest  of  a  will  testa- 
tor's hired  men  are  not  called  by  either 
party,  proponent's  counsel  may  ask  the  jury 
if  they  have  seen  the  hired  men — In  re  Mc- 
Cabe's  Will,  73  Vt.  175.  In  commenting  on 
failure  to  introduce  certain  witnesses  it 
may  be  stated  that  a  party  did  not  dare 
place  them  on  the  stand — \yilkins  v.  City  of 
Flint,   128  Mich.   262. 

24.  As  where  one  witness  for  a  party 
testifies  to  a  confession  overheard  by  an- 
other witness  for  the  same  party,  and  such 
w^itness.  on  his  examination,  is  not  ques- 
tioned thereto — McKinstry  v.  Collins,  74  Vt. 
147. 

25.  As  where  the  absence  of  one  of  a 
plaintiff  partnership  is  argued  to  be  a  cir- 
cumstance indicating  that  matters  are  be~ 
ing  kept  from  the  jury — Gillman  v.  Williams 
(Vt.)    52    Atl.    428. 

26.  So  in  slander,  an  inference  that  plain- 
tiff started  a  newspaper  controversy,  is  not 
warranted  by  evidence  of  a  reporter  that 
he  asked  defendant,  if  a  statement  in  an 
article  by  plaintiff  was  true,  where  the  orig- 
inal article  is  not  in  evidence — Jarman  v. 
Rea.  137  Cal.  339.  V^^'here  a  remark  was  tes- 
tified to  and  denied  by  certain  witnesses, 
counsel  may  state  that  another  witness,  if 
called,  would  have  testified  that  he  heard 
it — Walker  v.  Boston  &-  M.  R..  71  N.  H.  271. 
Where  an  expert  testifies  that  he  expects 
the  party  for  whom  he  is  a  witness  to  pay 
him  a  certain  sum,  it  is  not  reversible 
error  to  state  that  such  ■witness  had  been 
bought  up  by  the  partj'  to  testify  in  fts 
favor  for  such  sum — Missouri,  K.  &  T.  R. 
Co.  V.  Follin  (Tex.  Civ.  App.)  68  S.  W.  810. 
Counsel  does  not  exceed  the  limits  of  ar- 
gument by  asserting  that  either  one  ot  cer- 
tain witnesses  was  mistaken  or  one  has 
lied — Ex  parte  Snodgrass  (Tex.  Cr.  App.) 
65  S.  W.  1061.  Counsel  cannot  be  allowed 
to  call  a  defendant  a  robber  and  a  self  con- 
fessed robber  of  his  wife's  grandmother  and 
to  state  that  he  was  trying  to  deny  a  debt 
where  the  sum  in  regard  to  which  such 
statements  were  made,  was  alleged  by  de- 
fendant to  have  been  included  in  a  settle- 
ment prior  to  the  suit — Grabowsky  v.  Baum- 
gart,  128  Mich,  267. 

27.  Where  in  slander  for  charging  un- 
chastity  it  is  argued  that  a  verdict  for  de- 
fendant  would   be    a   judgment    as    to    plain- 


ARGUMENT  OF  COUNSEL. 


211 


Matters  outside  of  issues. — Counsel  may  argue  anything  witMn  the  issue," 
but  not  grounds  of  relief  not  presented  by  the  pleadings. ^^  Comments  extraneous 
to  the  issue  may  require  a  reversal,^"  though  the  pendency  of  other  suits  of  a 
similar  nature  may  be  commented  on.^^ 

Matters  not  in  evidence. — Evidence  which  has  not  been  objected  to  may  h'e' 
commented  on/^  and  denial  of  the  right  to  discuss  evidence  is  equivalent  to  its 
exclusion  ;^^  but  counsel  must  not  discuss  luatters  not  in  evidence,^*  nor  make 
statements  of  fact  concerning  matters  not  in  the  record,^^  or  from  their  own  ex- 
[)erience  not  in  evidence.^*^  Counsel  should  not  refer  to  amount  of  verdicts  sus- 
tained in  other  cases. ^^  An  argument  that  a  plea  of  non  est  factum  to  a  note 
charges  plaintiff  with  forgery  is  not  the  statement  of  a  fact  not  in  evidence,  but 
ii?  a  mere  expression  of  an  opinion. ^^  Persistence  in  arguing  facts  not  in  evi- 
dence and  excluded  by  the  court  may  be  ground  for  a  new  trial  or  reversal.^"  It 
is  improper  to  read  pleadings  not  introduced  in  evidence  to  the  jury,*°  or  for 


tiff's  lack  of  chastity — Hacker  v.  Heiney,  111 
Wis.   313. 

2S.  As  where  plaintiff  was  injured  by 
stumbling  over  slag  near  a  railroad  track, 
counsel  may  argue  the  continued  and  safe 
use  of  the  premises,  since  the  slag  had  been 
there — Southern  R.  Co.  v.  McLellan,  80  Miss. 
700.  Where  a  note  in  payment  of  lightning 
rods  was  sued  by  an  assignee,  defendant's 
counsel  may  state  that  though  he  had  read 
that  plaintiff  had  houses,  he  did  not  think 
that  plaintiff  had  any  of  his  assignor's 
lightning  rods — Kirby  v.  Berguin,  15  S.  D. 
444.  Where  a  conductor  testified  that  he 
was  discharged  for  incompetency  and  de- 
fendant that  he  was  discharged  for  not 
ringing  up  fares,  argument  that  defendant 
was  negligent  in  leaving  an  incompetent  man 
on  the  car  will  not  be  regarded  as  an  ar- 
gument that  plaintiff's  injury  resulted  from 
general  incompetency  of  the  conductor  but 
as  a  comment  on  the  credibility  of  the  con- 
ductor's testimony — Leach  v.  Detroit  Elec- 
tric Ry.  (Mich.)  8  Detroit  Leg.  N.  931,  88 
N.  W.   635. 

2f>.  Humphreys  v.  Eastlack,  63  N.  J.  Eq. 
136.  In  an  action  by  a  carrier  for  freight 
submitted  on  the  theory  that  there  was  an 
undertaking-  to  pay  on  the  part  of  the  de- 
fendant, defendant  cannot  state  that  he 
had  lost  the  chance  to  protect  himself,  though 
there  is  evidence  that  the  plaintiff  made  a 
delivery  of  the  goods  to  the  consignee  with- 
out demanding  its  freight — Montpelier  &  "W. 
R.  R.  Co.  V.  Macchi,  74  Vt.  403. 

30.  As  where  in  partition  of  personalty 
sought  by  an  execution  purchaser,  and  the 
title  is  in  issue,  defendant's  counsel  states 
that  the  property  was  worth  $750  and  plain- 
tiff bid  only  $25  therefor — Hunstock  v.  Rob- 
erts (Tex.  Civ.  App.)  65  S.  W^  675.  A  re- 
mark by  counsel  that  an  action  was  not 
brought  for  more,  since,  had  it  been,  the 
cause  would  have  been  removed  to  the 
tribunal,  where  recovery  was  not  allowed 
for  mental  anguish,  is  not  fatal  where  the 
jury  are  told  not  to  consider  such  remark 
and  the  verdict  of  damages  awarded  was 
not  complained  of  as  excessivef^Western 
Union  Tel.  Co.  v.  Perry  (Tex.  Civ.  App.)  70 
S.  W.  499. 

31.  Sr>  held  in  an  action  against  a  rail- 
way company  for  personal  injuries  In  which 
it   was   alleged   that   the    claim    was    fraudu- 


lent— Wheeler    v.    Detroit    Elec.    R.    Co.,    128 
Mich.    656. 

32.  Chicago  &  E.  L  R.  Co.  v.  Mochell,  193 
111.    208. 

33.  Home  Riverside  Coal  Min.  Co.  v. 
Fores,  64  Kan.  39. 

.34.     Warren  v.  Nash,  24  Ky.  Law  Rep.  479. 

33.  As  where  counsel  states  from  his 
knowledge  of  the  adverse  party  that  if  there 
were  $500  and  such  party's  honor  on  the  ta- 
ble, the  party  would  grab  the  $500  and  let  his 
honor  go — Gutzman  v.  Clancy,  114  Wis.  589. 
Statements  that  family  quarrels  and  charges 
of  infidelity  will  be  proved  are  substantiated 
by  evidence  of  charges  of  "whoring" — Hack- 
er v.  Heiney,  111  Wis.  313.  Statements  that 
defendant  has  the  names  of  witnesses  which 
it  refuses  to  divulge,  or  summons,  are  er- 
roneous where  not  based  on  the  evidence 
— -Stewart  v.  Metropolitan  St.  R.  Co.,  72  App. 
Div.  459.  Statement  that  bankers  had  been 
for  many  years  taking  usury  and  that  it 
was  unreasonable  to  believe  that  they  had 
not  done  so  in  the  case  at  bar  and  that  it 
was  hard  to  collect  taxes  from  them,  is 
ground  for  setting  aside  a  verdict  where 
the  action  is  by  the  bankers  and  the  de- 
fense usury — Wells  v.  Moses>  87  Minn.  432. 
In  an  action  for  libel  in  the  publication  of 
a  charge  of  murdel^,  counsel  should  not  be 
allowed  to  allude  to  plaintiff  as  a  murderer 
where  there  is  no  evidence  to  sustain  such 
charge  and  plaintiff  was  discharged  after 
arrest  on  a  warrant  in  which  no  offense 
was  named — Jones  v.  Murray,  167  Mo.  25. 
It  is  misconduct  to  charge  plaintiff  with 
having  bribed  witness  to  swear  falsely, 
there  being  no  evidence  thereof — Hopkins 
V.  Hopkins    (N.  C.)    43   S.  E.   506. 

36.  Louisville  &  Nashville  R.  Co.  v.  Hull, 
24  Ky.  Law  Rep.  375,  57  L.  R.  A.  771. 

37.  Quincy  Gas  &  Electric  Co.  v.  Bauman, 
104  111.  App.  600.  Counsel  must  not  state 
to  the  jury  that  in  similar  cases,  certain 
sums  awarded  as  damages  have  been  held 
not  excessive  and  that  it  is  the  Jury's  duty 
to  punish  defendant — Chicago,  I.  &  L.  R.  Co. 
V.   Martin,    28   Ind.   App.   468. 

3S.  Brown  V.  Johnston  Bros.,  135  Ala. 
608. 

39.  Courip-  Printing  Co.  v.  Wilson  (Neb.) 
90  N.  w.    m' 

40.  Nicholson  v.  Merritt,  23  Ky.  Law  Rep. 
2281. 


212 


ARGUMENT  OF  COUNSEL. 


counsel  to  refer  to  them;*^  this,  though  a  file  mark  on  the  pleading  has  been 
introduced.*-     Counsel  may  read  from  a  transcript  of  the  stenographer's  notes.*' 

Appeals  to  passion,  prejudice^  and  sympathy. — Arguments  arousing  the  pas- 
sion and  prejudice  of  the  jury  cannot  be  permitted,**  or  incorrect  statements  ex- 
citing sympathy,*^  though  arraignment  of  the  conduct  of  the  opposite  party  may 
be  severe.*®     It  is  improper  to  make  arguments  attacking  plaintiff's  public  spirit.*^ 

Ecmarls  during  the  trial  are  on  the  same  basis  as  arguments.*^  It  is  not 
ground  for  new  trial  for  counsel  to  say,  on  eliciting  evidence  on  cross-examination, 
"that  is  something  I  didn't  know  about,  I  am  glad  to  find  that  out."*^  Attempts 
by  counsel  to  get  matters  in  evidence  by  the  asking  of  leading  questions  which 
are  improper  may  be  ground  for  reversal.^"  Eemarks  of  counsel  on  a  jury  com- 
ing in  to  report  its  inability  to  agree  may  require  its  dismissal.^^ 


41.  LouisviUe  &  Nashville  R.  Co.  v.  Hull, 
24  Ky.  Law  Rep.   375,  57  L.  R.  A.  771. 

42.  Johnston  v.  Johnston  (Tex.  Civ.  App.) 
67   S.  W.   123. 

43.  Bradley  v.  City  of  SpickardsviUe,  90 
Mo.   App.    416. 

44.  As  where  defaulted  defendants  In  a 
libel  suit  have  been  permitted  to  answer, 
It  is  improper  to  allow  plaintiff's  counsel 
to  state  that  the  answer  was  delayed  to  al- 
low defendants  to  get  rid  of  their  property, 
and  siich  matter  was  also  referred  to  on 
cross-examination  contrary  to  the  court's 
rulings — Hocks  v.  Sprangers,  113  Wis.  123. 
Statements  that  the  title  of  an  action  for 
malpractice  should  read  as  the  action  of  a 
lot  of  doctors  against  a  poor  girl  do  not 
require  reversal  where  the  counsel  is  re- 
buked and  directed  to  argue  the  evidence 
without  making  general  statements — Keik- 
hoefer  v.  Hidershide,  113  Wis.  280.  In  crim. 
con.  where  plaintiff's  wife  had  been  di%'orced 
and  died  far  from  home  and  apart  from  de- 
fendant language  of  plaintiff's  attorney  In 
calling  defendant  a  "seducer  and  murderer" 
is  not  ground  for  reversal — Lee  v.  Ham- 
mond, 114  Wis.  550.  Counsel  for  defendant 
in  action  for  divorce  on  ground  of  adulterj' 
should  not  exhibit  her  child  to  the  Jury 
saying  that  a  verdict  for  plaintiff  would 
bastardize  the  child  and  disgrace  and  dis- 
honor defendant — Hopkins  v.  Hopkins  (N. 
C.)  43  S.  E.  506.  Repeated  denunciations  of 
defendant  as  a  corporation  are  erroneous — 
Stewart  v.  Metropolitan  St.  R.  Co.  (N.  Y.)  72 
App.  Dlv.  459.  It  is  improper  to  accuse  a 
defendant  of  conducting  a  trial  at  an  un- 
necessary personal  expense  to  the  members 
of  the  jury  as  tax-payers — Stewart  v.  Met- 
ropolitan St.  R.  Co.  (N.  Y.)  72  App.  Div. 
459.  To  say  that  the  only  way  to  reach 
a  railroad  defendant  Is  to  make  it  pay 
money;  that  it  has  no  soul,  no  conscience, 
no  sympathy,  and  no  God,  Is  improper — 
Western  &  A.  R.  Co.  v.  Cox,  115  Ga.  715.  It 
is  improper  and  prejudicial  to  say  that  a 
railroad  company  "has  rights  that  you  don't 
have;  it  can  plow  through  your  land  and 
move  your  houses;  it  has  unusual  rights  and 
ought  to  pay  for  them" — Ft.  W.  &  D.  C.  R. 
Co.  v.  L0ck  (Tex.  Civ.  App.)  70  S.  W.  456. 
Telling  the  jury  that  it  must  assess  such  an 
amount  as  damages  as  will  show  a  railroad 
company  that  It  cannot  violate  the  law  is 
not  ground  for  reversal — Louisville,  H.  &  St. 
L.  R.  Co.  V.  Chandler's  Adm'r.  24  Ky.  Law 
Rep.   99S.     Argument   that  a  jury  should,   as 


Southern  gentlemen,  find  in  favor  of  a 
Southern  woman  as  against  a  soulless  cor- 
poration of  the  North,  is  improper — Fergu- 
son-McKinney  Dry  Goods  Co.  v.  City  Nat. 
Bank  (Tex.  Civ.  App.)  71  S.  "W.  604.  "Coun- 
sel should  not  state  that  he  understands 
an  insurance  company  is  defending  a  case 
— Geo.  A.  Fuller  Co.  v.  Darragh,  101  111.  App. 
664. 

45.  As  where  counsel  states  that  a  per- 
son desired  as  a  witness  demands  a  large 
sum  for  his  testimony,  since  there  was 
a  remedy  to  enforce  such  witness'  attend- 
ance— American  Malting  Co.  v.  Lelivelt,  101 
111.  App.  320.  A  remark  that  a  verdict  is 
not  asked  for  plaintiff  because  he  is  poor 
or  defendant  rich  and  powerful  but  only 
if  he  is  entitled  to  verdict,  does  not  re- 
quire a  new  trial — Gilman  v.  City  of  La- 
conla,  71  N.  H.  212.  On  a  question  of  dam- 
ages the  jury  must  not  be  asked  to  consid- 
er the  fact  that  plaintiff  cannot  now  be  a 
mother  if  there  is  no  evidence  to  that  effect 
— Blackman  v.  West  Jersey  &  S.  R.  Co.  (N. 
J.  Law)  52  Atl.  370. 

46.  As  where  it  is  stated  that  there  was 
an  intent  to  rob  a  cripple  of  his  r.ights, 
that  defendant's  counsel  displayed  a  cloven 
hoof  of  the  monster  and  that  reference  to 
a  party  concerned  in  the  alleged  fraud  was 
like  a  crimson  rag  thrown  in  the  counsel's 
face — Hedlun  v.  Holy  Terror  Min.  Co.  (S. 
D.)  92  N.  W.  31.  In  an  action  on  notes, 
statements  in  argument  that  defendants  are 
vultures  and  wolves,  and  fit  subjects  for 
the  penitentiary,  do  not  require  a  reversal 
— Huber  v.  Miller,  41  Or.  103,  68  Pac.  400. 
Argument  that  plaintiffs  were  engaged  in 
drunken  and  lewd  debauch  showing  con- 
tributory negligence  in  reckless  driving 
held  permissible — Guertin  v.  Hudson,  71  N. 
H.    505. 

47.  V\'here  damages  were  sought  for  the 
construction  of  a  railroad,  and  plaintiff's 
conduct  was  characterized  as  an  impedi- 
ment to  progress  and  defendant's  bondsmen 
characterized  as  public  spirited  citizens — 
Hanna  v.  Gulf,  C.  &  S.  F.  R.  Co.,  27  Tex. 
Civ.  App.   492. 

48.  Welch  V.  Union  Cent.  Life  Ins.  Co. 
(Iowa.)   90  N.  W.   S2S. 

49.  Guertin  v.   Hudson.   71   N.   H.   505. 

50.  Manigold  v.  Black  RiVer  Traction  Co., 
114   N.   Y.    State   Rep.    861. 

51.  As  where  counsel  requests  that  the 
jury  be  discharged  as  they  stood  ten  to  two, 
that  a  majority  should  not  be   dragged  into 


ARGUMENT  OF  COUNSEL. 


213 


§  4.  Excuses  for  impropriety. — Prejudicial  remarks  are  not  excused  by  the 
fact  that  they  are  provoked  by  opposing  counsel/''  though  the  contrary  has  been 
held.^3 

§  5.  Objections  and  rulings. — Objections  must  be  made  to  erroneous  re- 
marks.^* The  ground  need  not  be  stated,^^  though  it  has  been  held  that  objec- 
tions to  an  opening  statement  must  state  the  reason  thereof.^^^  The  objection- 
able language  should  be  specifically  pointed  out.^^  The  extent  of  an  exception 
is  for  the  determination  of  the  court,^*  as  is  the  question  of  whether  an  argu- 
ment is  a  statement  of  fact  or  a  request  for  an  inference/® 

§  6.  Action  of  court  or  counsel  curing  objection. — Eemarks  which  the  jury 
are  instructed  to  disregard  are  no  ground  for  reversal/^  especially  where  offending 
counsel  also  cautions  the  jury  not  to  consider  matter  outside  the  record/^  or  there 
is  an  immediate  rebuke  to  counsel/^  but  such  instruction  is  not  always  sufficient.^' 
An  emphatic  statement  by  the  court  that  language  is  improper  and  ought  not  to 
be  used  obviates  the  necessity  for  a  new  trial,  where  no  exception  was  taken  or 
another  action  requested  by  the  opposite  party.®*  It  may  be  ground  for  reversal 
that  an  improper  question  is  asked  though  the  answer  was  excluded.®^  Error  in 
argument  may  be  cured  by  its  immediate  withdrawal  on  exception."®  Eeference 
to  the  amount  of  a  former  verdict  may  be  harmless  if  withdrawn  and  the  jury 


finding-  a  low  verdict  by  an  obstructionist, 
that  it  was  an  outrage — Hagen  v.  N.  T.  Cent. 
&  H.   R.  Co.    (N.  Y.)    79  App.  Div.   519. 

53.  Welch  V.  Union  Cent.  Life  Ins.  Co. 
(Iowa)    90   N.   W.   828. 

53.  As  where  he  invites  a  statement  that 
plaintiff  should  either  be  done  justice  or 
sent  to  the  county  house  at  once — Wilkins 
V.   City  of  Flint,   128   Mich.   262. 

54.  Portland  Gold  Min.  Co.  v.  Flaherty 
(C.  C.  A.)   Ill  Fed.  312. 

S."?.  As  where  counsel  persists  in  stating 
amounts  of  damages  held  excessive  in  other 
cases — Chicago.  I.  &  L.  R.  Co.  v.  Martin, 
28   Ind.   App.    468. 

56.  Where  an  answer  was  read  by  de- 
fendant— Waid  V.  Hobson  (Colo.  App.)  67 
Pac.    176. 

57.  To  counsel  summing  up — Dimon  v.  N. 
Y.  Cent.  &  H.  R.  R.  Co.,  173  N.  Y.  356. 

58, 
271. 


Walker   v.   Boston    &   M.   R.,    71    N.    H. 
Walker   v.    Boston    &   M.    R.,    71    N.   H. 


59, 

271. 

60.  Allen  V.  McKay  &  Co.  (Cal.)  70  Pac.  8. 
As  where  the  insojvency  of  a  contractor  is 
commented  on  in  lien  proceedings,  and  the 
jury  are  instructed  that  questions  of  finan- 
cial condition  are  not  to  be  considered — 
Hammond  v.  Pullman  (Mich.)  8  Detroit  Leg. 
N.  1052,  89  N.  W.  358.  As  where  a  counsel 
states  in  the  presence  of  other  jurors  to  a 
juror  who  has  denied  acquaintance  with 
certain  persons  that  he  believes  that  the 
juror  does  know  such  persons  because  he 
has  been  around  trying  to  compromise  the 
case — Gundlach  v.  Schott,  95  111.  App.  110. 
Statements  that  corporations  object  to  the 
passage  of  laws  protecting  employees  and 
to  laws  requiring  the  inclosure  of  eleva- 
tors will  not  cause  reversal,  where  the  court 
admonishes  the  counsel  to  confine  himself 
to  the  evidence — Wendler  v.  People's  House 
Furnishing  Co.,  165  Mo.  527;  Cameron  Lum- 
ber Co.  v.  Somerville  (Mich.)  8  Detroit  Leg. 
N.  1064,  89  N.  W.  346.  A  statement  of  tlie 
court  after  objection  to  argument  that  "the 
jury  in  this  case  will  regulate  their  delib- 
erations    upon    the    evidence    in     this    case. 


which  the  jury  always  does"  is  sufficient  and 
not  erroneous  as  being  in  the  nature  of  a 
rebuke  to  the  objecting  party — Clukey  v. 
Seattle  Electric  Co.,  27  Wash.  70,  67  P.  379. 
Where  judgment  was  modest  in  amount — 
Moore  v.  Neubert,  21  Pa.  Super.  Ct.  144. 
An  improper  reading  from  a  reported  case 
may  be  cured  by  causing  a  counsel  to  stop, 
and  instructing  the  jury  to  disregard  what 
he  had  read — Hayes  v.  Continental  Casualty 
Co.    (Mo.  App.)    72  S.  W.   135. 

61.  Where  in  an  action  for  careless  driv- 
ing, plaintiff's  counsel  in  argument  attempt- 
ed to  bring  out  the  fact  that  defendants 
were  in  the  custom  of  racing — Westercamp 
V.  Brooks,  115  Iowa,  159. 

62.  Lockwood  V.   Fletcher,   74  Vt.  72. 

63.  As  where  when  the  case  was  largely 
dependent  on  one  witness  and  counsel  re- 
marked that  if  the  jury  knew  such  witness' 
business  methods  tliey  would  say,  "God 
save  the  plaintiffs  and  God  save  all  those 
who  deal  with  them" — German-American  In- 
surance Co.  V.  Harper,  70  Ark.  305.  So 
held  where,  on  a  proceeding  by  an  execu- 
tion purchaser,  opposing  counsel  stated  that 
plaintiff  bid  only  a  small  portion  of  what 
the  property  was  worth  and  that  the  action 
was  an  attempt  to  confiscate  the  property — 
Hunstock  V.  Roberts  (Tex.  Civ.  App.  (65  S. 
W.  675.  The  party's  misconduct  is  not 
cured  by  an  instruction  at  his  request  that 
"In  case  either  counsel  in  summing  up  the 
stated  facts  that  were  not  proved  upon  the 
trial,  or  in  case  either  counsel  gave  a  recol- 
lection of  the  facts  which  disagrees  with 
the  recollection  of  the  jury,  the  jury  may 
disregard  these  statemetts  and  take  their 
own  recollection  of  the  facts" — Stewart  v. 
Metropolitan  City  R.  Co.  (N.  Y.)  72  App. 
Div.    459. 

64.  United  States  v.  Alexander,  119  Fed. 
1015. 

65.  Cosselmon    v.    Dunfee,    172    N.    Y.    507. 

66.  Kilpatrick  v.  Grand  Trunk  R.  Co.,  74 
Vt.  288.  As  where  the  remark  is  not  only 
withdrawn  but  an  apology  made  and  a  re- 
quest to  the  jury  to  disregard  it — University 
of    Illinois    V.    Spalding,    71    N.    H.    163.      Re- 


214 


ARREST  AND  BINDING  OVER. 


instructed  not  to  consider  it,  and  there  is  no  reasonable  ground  to  believe  that 
they  were  influenced."'  A  court  on  adjudging  counsel's  remarks  to  be  improper 
may,  bv  pointed  rebuke  of  counsel,  remove  as  far  as  it  can  any  improper  effects 
from  his  statements,  and  may  state  that  it  is  not  based  on  evidence  and  such 
action  is  sufficient.^®  A  direction  to  the  jury  that  there  was  no  evidence  of  a 
statement  made  in  argument,  and  that  it  should  not  be  considered,  is  a  ruling 
that  the  remark  is  improper.®^  The  jury  should  be  instructed  to  disregard 
reference  to  matters  not  in  issue.'^° 

ARREST  AND  BINDING  OVER. 


§  1.     Occnsion  or  Necessity  tor  Warrant. 
§  2.      Priviiesio  from  Arrest. 
§  3.     Cojiiylaint     or     Affidavit     to     Procnre 
Warrant. 

§  4.     Tiie  W'arrant  and  Its  Issuance. 


§  5.  Making-  Arrest  and  Keeping  and  Dis- 
position of  Prisoner. 

§  C.  PreliKiinary  Hearing  and  Binding 
Over. 

§  7.     Custody  ATcaiting  Trial. 


§  1.  Occasion  or  necessity  for  warrant. — His  official  position  will  not  au- 
thorize a  peace  officer  to  arrest  at  pleasure  witWut  a  warrant;^  the  offense  must 
be  committed  within  his  view,  especially  if  a  misdemeanor,^  or,  if  a  felony,  he 
must  have  reasonable  cause  to  believe,  either  from  his  own  information  or  that 
of  others,  that  the  person  he  seeks  to  arrest  committed  the  offense.^  If  the  per- 
son arrested  did,  in  fact,  commit  the  crime  charged,  the  reasonableness  of  the  in- 
formation on  which  the  officer  arrested  him  is  immaterial.*  Discovery  of  a  per- 
son running  toward  him  from  direction  of  a  disturbance  at  a  late  hour  of  the 
night  may  be  reasonable  ground  for  belief  that  he  has  committed  an  offense.^ 
TJnf\^r  special  acts  no  warrant  or  information  is  necessary  to  arrest  a  child  under 
16,  found  without  parent  or  guardian  in  a  place  where  intoxicating  liquors  are  sold.** 
An  officer  acting  without  a  warrant  is  not  justified  in  shooting  a  man  fleeing 
from  arrest  for  a  less  offense  than  a  felony.'^ 

A  private  person  may  arrest  without  a  warrant  where  an  offense  has  been 
committed,®  or  attempted  in  his  presence,®  but,  unlike  an  officer,  he  takes  the 
risk  of  a  mistake  in  attempting  to  arrest  for  a  felony.^"  If  one  engaged  in  a 
misdemeanor  desists  and  attempts  flight  a  private  person  cannot  arrest  him.^^ 


marks  withdrawn  concerning  damages,  the 
jury  instructed  to  disregard  them  and  ver- 
dict reduced  to  a  not  excessive  amount — 
Meyer  v.  Milwaukee  El.  R.  &  L.  Co.  (Wis.) 
93  N.  W.   6. 

67.  Baker  v.  Independence,  93  Mo.  App. 
165. 

68.  Brzozowski  v.  National  Box  Co.,  104 
111.   App.   33S. 

69.  Jas.  Smith  "Woolen  Mach.  Co.  v.  Hold- 
en,  73  Vt.  396. 

70.  Keck  V.  Bode.  23  Ohio  Cir.  Ct.  R.   413. 

1.  People  v.  Hochstim  (N.  T.)  36  Misc. 
Rep.  562.  The  possibility  that  one  who 
threatens  the  life  of  another,  may  assault 
him  is  insufficient;  Code  Cr.  Proc.  (Tex.) 
arts.  107-U2 — Allen  v.  State  (Tex.  Cr.  App.) 
66  S.  W.  671. 

2.  People  V.  Glennon  (N.  Y.)  37  Misc. 
Rep.  1;  arrest  for  indecent  exposure — Ra- 
rick  V.  McManomon.  17  Pa.  Super.  Ct.  154. 
An  officer  may  arrest  one  carrying  a  dan- 
gerous weapon,  without  legal  authority,  and 
disarm  him — Manger  v.  State  (Tex.  Cr.  App.) 
69  S.  'W.  145. 

3.  That  an  offense  has  been  committed  is, 
of  itself,  insufficient — People  v.  Hochstim 
(N.  Y.)  36  Misc.  Rep.  562;  Rarick  v.  Mc- 
Manomon,   17    Pa.    Super.    Ct.    154;    mere   con- 


scious knowledge  that  a  house  is  disorderly 
will  not  justify  an  arrest  of  the  keeper — 
People  V.  Glennon  (N.  Y.)  37  Misc.  Rep.  1. 
This  rule  has  been  applied  in  a  civil  case — 
Park  v.  Taylor  (C.  C.  A.)  118  Fed.  34.  That 
a  deputy  superintendent  of  elections  is  also 
a  peace  officer  will  not  change  the  rule  as 
to  arrests  for  violation  of  the  election  laws: 
see  Code  Cr.  Proc.  §  177 — People  v.  Hoch- 
stim  (N.  Y.)    76  App.  Div.   25. 

4.  Code    Iowa,    §    5196 — State    v.    Phillips 
(Iowa)    92  N.  W.   876. 

5.  Brooks  v.  State,  114  Ga.  6. 
Under    Pen.    Code    N.    Y.    §    291,    subds. 


-People   v.   Angle    (N.    Y.)    74   App.   Div. 


6. 

4,    5 
539. 

7.  Cr.  Code  Prac.  Ky.  §§  36,  43,  declares 
that  unnecessary  force  or  violence  shall  not 
be  used — Petrie  v.  Cartwright,  24  Ky.  Law 
Rep.    954. 

S.  Cr.  Code  Neb.  §  284. — Kyner  v.  Laub- 
ner  (Neb.)  91  N.  W.  491. 

9.  Code  Cr.  Proc.  N.  Y. — Tobin  v.  Bell 
(N.   Y.)    73   App.   Div.    41. 

10.  People  v.  Glennon  (N.  Y.)  37  Misc. 
Rep.    1. 

11.  Golibart  v.  Sullivan  (Ind.  App.)  66  N. 
E.    188. 


ARREST   AND  BINDING  OVER. 


215 


§  2.  Privilege  from  arrest. — An  officer  of  the  United  States  army  cannot 
be  arrested  on  a  warrant  or  order  of  a  state  court.^^  A  citizen  cannot  be  arrested 
and  taken  away  to  prevent  his  voting.^^ 

§  3.  Complaint,  affidavit,  or  information  to  procure  warrant. — The  prelim- 
inary complaint  for  examination  before  a  magistrate  need  not  charge  the  crime 
with  the  same  particularity  as  an  indictment.^*  It  is  sufficient  in  South  Dakota 
though  it  shows  that  the  ofiense  was  committed  more  than  three  years  before  if 
the  statutory  exception  is  not  pleaded.^^  An  affidavit  which  negatives  all  ex- 
ceptions and  excuses  given  in  the  statute  need  not  state  that  the  act  was  "un- 
lawfully'^ done.^®  An  affidavit  before  a  magistrate  in  Mississippi  must  conclude 
"against  the  peace  and  dignity  of  the  state."^^  The  name  by  which  a  person  is 
generally  known  will  be  sufficient  in  preliminary  examination  though  his  real  name 
is  subsequently  substituted.^*  An  information  charging  that  defendant  did  com- 
mit the  crime  of  misdemeanor  at  a  certain  time  and  place  by  violating  a  certain 
statute  is  insufficient  to  give  the  justice  jurisdiction.^"  A  complaint  for  issuance 
of  a  warrant  is  not  based  on  information  merely  where  based  on  the  evidence 
of  another  than  affiant  given  before  a  justice  which  affiant  swore  he  believed  to 
be  true.-**  A  verification  on  information  and  belief  is  sufficient  except  for  issu- 
ance of  a  warrant  of  arrest,  and  objection  must  be  made  by  motion  to  quash 
the  warrant  before  plea  to  the  merits  or  other  steps  which  operate  as  waiver.^^ 
A  preliminary  complaint  made  by  one  person  cannot  be  substituted  for  a  lost  com- 
plaint made  by  another.^^ 

§  4.  The  warrant  and  its  issuance.-^ — Legal  evidence  that  a  crime  has  been 
committed  is  necessary  to  issuance  of  a  warrant  by  a  magistrate.^* 

A  clerk  of  court  so  named  in  the  statute  authorizing  him  to  issue  a  warrant 
does  so  as  the  court;  and  it  is  lawful;  and  the  clerk  pro  tempore  may  exercise 
the  power.^^  A  law  giving  a  court  of  record,  or  a  judge  thereof,  power  to  issue 
warrants  for  specified  offenses,  as  election  frauds,  extends  the  power  to  every  judge 
dl  such  court.  ^® 

In  Missouri,  a  justice  cannot  issue  a  warrant  without  an  information  filed 
by  the  prosecuting  attorney  unless  it  appears  that  the  accused  is  about  to  escape, 
or  has  no  property  to  prevent  his  leaving,  or  that  he  has  no  known  place  of  resi- 
dence.^'^ The  necessity  of  a  warrant,  issued  by  a  justice  on  mere  affidavit  before 
information  filed,  should  be  shown  by  an  entry  on  the  docket,  an  indorsement 
on  the  writ,  or  other  writing  of  equal  weight.^* 

The  warrant  is  ordinarily  directed  to  the  regular  sheriff  or  constable.-''     If 


12.  In  re  Turner,  119  Fed.  231. 

13.  People  V.  Hochstim  (N.  Y.)  36  Misc. 
Rep.   562. 

14.  Sufficiency  of  such  complaint  In  for- 
gery— State  V.  Newton,  29  Wash.  373,  70  Pac. 
31. 

15.  Comp.  Laws,  §§  7114,  7115,  construed — 
Smith  V.  Jones    (S.  D.)    92  N.  W.   1084. 

16.  Prosecution  of  parent  under  Act  Ind., 
Mch.  6,  1899,  concerning  duties  of  parents 
and  guardians  in  regard  to  attendance  of 
children  at  school — State  v.  Bailey,  157  Ind. 
324. 

17.  Const.  §  169 — Miller  v.  State  (Miss.) 
32   So.   951. 

18.  State  V.  Pipes,  65  Kan.  543,  70  Pac. 
363. 

19.  Under  Code  Cr.  Proc.  N.  T.  §§  148,  149 
—People  V.  Tuthill   (N.  Y.)   79  App.  Div.  24. 

20.  The  positive  testimony  under  oath  is 
sufficient — Village  of  Sparta  v.  Boorom 
(Mich.)   89  N.  W.  435,  8  Detroit  Leg.  N.  1100. 

21.  In  T-e  Cummings  (Okl.)   66  Pac.  332. 


22.  Under  Code  Cr.  Proc.  Tex.  art.  470, 
providing  for  substitution  of  a  new  indict- 
ment on  loss  of  the  former  one — Morrison  v. 
State  (Tex.  Cr.  App.)  66  S.  W.  779. 

23.  Sufficiency  of  order  of  arrest  Issued  by 
magistrate  of  Russian  circurt  court  as  war- 
rant of  arrest  required  by  treaty  with  Rus- 
sia— In   re   Grin,    112   Fed.   790. 

24.  Though  it  need  not  be  convincing, 
the  uncorroborated  oath  of  a  siflgle  witnes."? 
is  insufficient  w^here  the  charge  is  denied — 
People  V.  McGirr  (N.  Y.)  39  Misc.  Rep.  471. 

25.  Under  St.  1893,  c.  396,  §  44;  clerk  pro 
tempore  was  appointed  under  St.  1893,  c. 
396.  §  6 — Commonwealth  v.  Posson,  182  Mass. 
339. 

26.  Const,  art.  8,  §  14 — In  re  Election 
Court     (Pa.)    53  Atl.  784. 

27.  McCaskey  v.  Garrett,  91  Mo.  App.  354. 

28.  McCaskey  v.  Garrett,  51  Mo.  App.  354. 
20.     Sufficiency    of    warrant    of    arrest    di- 
rected to  a  person  other  than  the   regularly 


216 


ARREST  AND  BINDING  OVER. 


it  follows  the  statutory  requirements,  it  is  sufficient  though  it  does  not  state  the 
particulars  of  the  crime.^°  Where  the  complaint  was  amended  as  to  the  name 
of  the  owner  of  property  alleged  to  be  stolen,  it  was  not  necessary  to  amend  the 
warrant  since  it  necessarily  recited  the  substance  of  the  complaint  and  a  plea 
thereto  was  in  effect  a  plea  to  the  complaint."  A  warrant  of  arrest  for  deface- 
ment of  a  building  is  not  void  because  it  charges  that  the  building  was  on  a  high- 
way; a  statement  of  the  names  of  o\niers  specifying  a  certain  person  "and  divers 
other  persons"  is  sufficient  as  to  ownership.^^  The  warrant  is  not  void  because 
issued  on  Sunday.^'  An  order  in  contempt  to  arrest  one  and  bring  him  before 
the  court  without  bail  or  giving  a  retrrn  day  in  the  warrant  is  not  substantial 
error  where  he  is  in  court  with  time  to  plead  and  in  the  meantime  is  allowed  to 
o-o  on  his  own  recognizance.^*  Waiver  of  preliminary  examination  in  misde- 
meanor cures  all  defects  in  the  warrant.^^  A  plea  to  the  merits  or  entering  a 
recognizance  for  future  appearance  waives  a  defect  in  the  complaint  in  tliat  it 
is  verified  on  information  and  belief.^^ 

§  5.  Mal-ing  arrest  and  keeping  and  disposition  of  prisoner. — The  officer  must 
make  his  character  as  an  officer  kno^vTi  to  the  person  at  time  of  arrest.'^  He  must 
inform  the  person  arrested  of  the  intention  to  arrest  him,  the  cause,  and  author- 
ity to  arrest,  and  that  he  is  a  peace  officer."^  A  sheriff  may  arrest  an  escaped 
convict  at  any  time  and  is  allowed  a  reasonable  time  in  which  to  deliver  him  to 
the  employer  of  county  convicts.^^  One  may  be  arrested  and  held  to  await  the 
action  of  the  grand  jury  though  a  former  jury  failed  to  indict  him,  especially 
where  the  state  subsequently  discovers  new  evidence  of  the  charge  against  him.'*" 
A  private  citizen  arresting  another  for  a  crime  committed  or  attempted  in  his 
presence  need  not  state  the  cause  of  the  arrest.*^  The  common-law  rule  that  one 
arrested  on  a  capias  and  surrendered  in  discharge  of  bail  may  be  committed  with- 
out any  mittimus  is  not  changed  by  statute,  nor  the  rule  that  one,  brought  into 
court  on  a  capias  issued  on  information  or  indictment  and  failing  to  furnish  bail, 
may  be  committed  to  jail  without  a  mittimus  or  express  order  of  court.*-  Ee- 
moval  of  one  under  arrest  to  another  parish  for  sake  keeping  does  not  prevent 
constructive  jurisdiction  of  his  person  by  the  former  parish  and  its  judge  and 
sheriff.*^ 

§  6.  Preliminary  hearing,  binding  over,  or  discharge. — The  preliminary  ex- 
amination is  a  right  or  personal  privilege  which  the  accused  may  waive.**  One 
may  be  proceeded  against  by  information  without  examination  before  a  magis- 
trate and  his  right  to  meet  the  witnesses  face  to  face  may  be  satisfied  on  the 
trial.*'     An  accused  is  not  entitled  to  a  preliminary  examination  before  a  justice 


elected    constable — Parish    v.    State,    130    Ala. 
92. 

30.  Under  Code  Cr.  Proc.  N.  Y.  §§  151,  152 
— Krauskopf  v.   Tallman.   170  N.   Y.    561. 

31.  Under  Rev.  St.  "^'is.  1898.  §§  4740.  4747. 
and  §§  4703,  4706.  providing  for  amendment  of 
the  complaint  —  Fetkenhauer  v.  State.  112 
"Wis.    491. 

32.  The  act  is  none  the  less  a  crime  if  the 
building  is  lawfully  on  the  highway;  suffi- 
ciency of  warrant  under  2  Ballinger's  Ann. 
Codes  and  Stat.  §§  6678,  6683.  6695— State  v. 
Yourex.   30  W'ash.   611.  71  Pac.   203. 

33.  Parish  v.  State.  130  Ala.  92. 

34.  State  V.  Peterson,  29  Wash.  571,  70 
Pac.   71. 

3,".  Defendant  must  show  that  he  has  not 
waived  preliminary  examination  where  he 
pleads    in    abatement    alleging    a    defect    on 


the  warrant  and  the  state  joins  issue  there- 
on— Everson  v.  State   (Neb.)    93  N.   W.   394. 

36.  In  re   Cummings,   11   Okl.    2S6.    66   Pac. 
332. 

37.  Cortez   v.    State    (Tex.    Cr.    App.)    69    S. 
W.   536. 

38.  Code   Iowa,   §   5199 — Stewart   v.    Feelev 
(Iowa)    92    N.   W.    570. 

39.  McQueen   v.   State.   130   Ala.   136. 

40.  Ex  parte  Baker   (Tex.  Cr.  App.)    65  S. 
W.    91. 

41.  Barclay  v.  United  States,   11   Okl.   503, 
69   Pac    798 

42.  V.    S.    §§    2028.    2029,    1981,    construed— 
State    V.    Shaw,    73    Vt.    149. 

43.  State   V.   Gray    (La.)    33   So.    108. 

44.  Reinoehl   v.   State.    62   Neb.   619. 

45.  Bel.    &    C.    Ann.    Codes    &    St.    Ore..    §J 
1258-64,  1278,  1660,  construed  in  the  light  of 


ARSON.  217 

where  an  indictment  for  felony  has  been  found.**  The  district  attorney  cannot 
send  an  indictment  before  the  grand  jury  without  preliminary  examination  or 
the  sanction  of  the  court.*'^  A  .judge  who  sits  on  election  day  with  jurisdiction 
of  breaches  of  the  peace  or  violation  of  the  election  laws  is  a  committing  magis- 
trate.*^ Where  the  grand  jury  for  the  term  in  session  has  been  discharged,  tlie 
committing  magistrate,  in  his  discretion,  may  remand  an  accused  to  appear  be- 
fore the  next  succeeding  grand  jury  and  is  not  required  to  recognize  him  for  ap- 
pearance at  the  present  term.*^  Where  a  week  passed  between  first  arraignment 
and  preliminary  examination,  the  magistrate  may  refuse  further  postponement 
to  allow  accused  to  procure  an  attorney.^"  It  cannot  be  objected  after  the  exam- 
ination that  it  was  taken  and  certified  by  another  than  the  official  reporter.  The 
magistrate  may  select  the  reporter.^^  The  public  may  be  excluded  on  examina- 
tion by  a  magistrate.^-  The  evidence  need  only  establish  probable  cause.^'  It 
must  appear  on  preliminsvy  examination  before  a  committing  magistrate  of  one 
charged  with  perjury  in  a  former  suit  that  the  alleged  false  testimony  was  ma- 
terial to  the  issues  of  the  suit.^*  Duplicity  in  charging  two  offenses  in  the  same 
count  of  a  complaint  in  preliminary  examination  will  not  affect  the  proceedings 
nor  the  information  on  trial.^^  The  trial  court  may  permit  the  committing  magis- 
trate to  amend  his  certificate  to  depositions  taken  before  him  at  preliminary  ex- 
amination outside  his  district  but  in  the  county.^*  Though  the  transcript  of  the 
preliminary  examination  on  which  the  grand  jury  acted  was  not  indorsed  by  the 
magistrate  as  required  by  law,  the  grand  jury  may  act  thereon  and  the  witnesses 
whose  names  are  indorsed  on  the  indictment  may  be  examined  on  the  trial  where 
the  identity  of  the  transcript  is  unquestioned.^^ 

§  7.  Custody  awaiting  indictment  or  trial.^^ — A  bail  warrant  is  unneces- 
sary when  one  on  trial  for  felony  is  ordered  into  custody  in  exercise  of  the  court's 
(liscretion.^^  A  justice  has  no  authority  to  review  an  order  of  the  circuit  court 
remanding  one  charged  with  seduction  to  custody  to  await  the  action  of  the  grand 
jury  or  to  change  the  amount  of  his  bail  as  fixed  by  that  order.^" 

ARSON". 

The  offense. — Only  a  willful  burning  is  essential  to  arson  by  a  tenant.*  If 
the  upper  floor  of  a  building  is  occupied  as  a  dwelling,  it  is  a  dwelling  house.^ 


Const,  art.  1,  §  11 — State  v.  Belding   (Or.)    71 
Pac.    330. 

46.  State   V.   Mooney,   49   W.   Va.   712. 

47.  Commonwealth  v.  Sheppard,  20  Pa. 
Super.  Ct.   417. 

4S.     In  re  Election  Court   (Pa.)   53  All.  784. 

49.  Under  Code  Cr.  Proc.  Tex.  art.  411. 
providing  for  discharge  and  reassembling  of 
the  grand  jury — Ex  parte  Glascow  (Tex.  Cr. 
App.)   64  S.  W.  1053. 

.■)0.  Arrest  on  charge  of  rape — People  v. 
Figueroa,    134   Cal.    159,    66    Pac.    202. 

51.  Under  Code  Iowa,  §§  5227.  4702,  pro- 
viding for  taking  examinations  before  magis- 
trates: in  this  case  it  v/as  agreed  that  the 
minutes  of  testimony  should  "be  taken  by  the 
official  reporter — State  v.  Turner,  114  Iowa, 
426. 

.-.2.  People  V.  Wyatt  (N.  Y.)  39  Misc.  Rep. 
456:   Same  v.   O'Brien.   Id. 

."5.3.  Sufficiency  of  evidence  to  warrant 
magistrate  in  holding  an  officer  of  an  as- 
sociation on  a  charge  of  larceny  for  appro- 
priating property  of  the  association  under 
Pen.  Code  N.  Y.  §  5  2S:  Code  Cr.  Proc.  N.  Y. 
§  208,   construed — People  v.  Crane,    114  N.   Y. 


State  Rep.  408.  Sufficiency  of  commitment 
to  await  action  of  grand  jury  on  charge  of 
violating  a  certain  section  of  the  Penal  Code. 
Under  Pen.  Code  N.  Y.  §  351 — People  v.  Ha- 
gan,  170  N.  Y.   46. 

54.  The  offering  of  the  decree  In  the  suit 
in  evidence  is  insufficient  where  the  mate- 
riality of  the  alleged  false  testimony  does 
not  appear  and  the  judgment  roll  is  not  pro- 
duced— State  V.  Second  Jud.  Dist.  Ct.,  26 
Mont.  275,  67  Pac.  943. 

55.  Sothman  v.  State   (Neb.)    92  N.  W.  303. 

56.  Such  permission  gives  the  justice  ju- 
risdiction to  make  the  amendment — State  v. 
McGann    (Idaho)    66    Pac.    823. 

57.  Indorsement  required  by  Code  Iowa,  § 
5228 — State  v.   Turner,   114   Iowa,    426. 

58.  Sufficiency  of  showing  for  commitment 
by  magistrate  of  one  charged  with  fraud  in 
regard  to  civil  service  appointment — Palmer 
v.    Colladay.    18    App.    D.    C.    426. 

59.  V.  S.  §  1981,  construed — State  v.  Shaw. 
73  Vt.  149. 

60.  Hall  V.  State,  130  Ala.   139. 

1.  The  contention  was  that  the  elements 
of  arson  by  ao  owner  (Inaurajice.  etc.)  must 


21S 


ASSAULT  AND  BATTERY. 


Indictment. — An  averment  that  a  building  was  "in  the  possession  of  and 
occupied  hf  a  person  named  siiflaciently  alleges  his  tenancy.^  The  offense  may 
be  laid  on  or  about  a  certain  day,*  and  property  may  be  laid  in  one  of  the  co- 
devisees.^     The  name  of  the  person  who  was  in  the  building  need  not  be  stated.* 

Variance. — Proof  of  rightful  possession  by  the  person  charged  as  owner  is 
sufficient.'  The  evidence  of  ownership  will  not  be  closely  scrutinized,^  and  in 
California  if  the  proof  identify  the  building  and  it  be  occupied  by  another,  own- 
ership need  not  be  shown.^ 

Evidence  that  defendant's  clothing  smelled  of  kerosene,  which  had  been  used, 
is  admissible,^"  as  is  e\-idence  of  his  possession  of  a  tool  such  as  was  used  in  the 
commission  of  the  offense.^^  Evidence  that  property  not  identified  as  coming 
from  the  burned  building  was  taken  from  defendant's  house  by  an  alleged  ac- 
complice is  inadmissible.^^ 

Other  offenses.^^ — Incriminating  admissions  by  defendant  are  sufficient  cor- 
roboration of  an  accomplice.^*  An  instruction  omitting  the  element  of  malice  is 
insufficient.^^  Verdict  of  guilty  as  charged  is  sufficient  where  the  information 
alleges  the  degree.^® 

Eeview. — Failure  to  object  to  an  instruction  assuming  a  material  fact  does 
not  waive  right  to  attack  the  sufficiency  of  the  evidence  because  of  failure  to  show 
such  fact." 

ASSAULT  AND  BATTERY. 

^  1.  Nature  and  elements  of  criminal  offense.^ — There  are  numerous  statu- 
tory crimes  of  assault  with  intent  to  commit  felony  all  of  which  are  differenti- 
ated from  assault  in  the  proper  sense  by  the  specific  intent  which  enters  and  is 


appear— KeUey  v.  State  (Tex.  Cr.  App.)  70 
3.   V7.    20. 

2.  State  V.  Jones   (Mo.)   71  S.  W.  680. 

3.  Kelley  v.  State  (Tex.  Cr.  App.)  70 
S.   W.   20. 

4.  Comp.  Laws.  §  7245,  provides  that  the 
precise  time  need  not  be  stated  unless  a 
material  ingredient  of  the  offense — State  v. 
McDonald     (S.    D.)    91    N.    W.    447. 

5.  Code  Cr.  Proc.  art.  445 — Kellay  v.  State 
(Tex.    Cr.    App.)    70    S.    W.    20. 

6.  State  V.  Jones  (Mo.)  71  S.  W.  680.  In- 
dictment for  burning  a  building  in  -which 
there  was  a  human  being  held  sufficient — 
State  V.  Jones  (Mo.)  71  S.  W.  6S0.  An  al- 
legation that  the  burning  was  with  intent 
to  injure  the  building  may  be  rejected  as 
surplusage — State  v.  Snellgrove  (Ark.)  71 
S.  "U'.  266.  Description  of  the  premises  as 
a  "house  and  tenement"  is  not  bad  for  duali- 
ty—State  V.   Snellgrove    (Ark.)    71   S.   W.    266. 

7.  Hannigan  v.  State.  131  Ala.  29;  People 
V.  Davis.  135  Cal.  162,   67  Pac.   59. 

8.  Defendant  had  sold  the  building  to 
the  .alleged  owner,  but  attempted  to  show  a 
prior  sale  by  him  to  a  third  person — People 
V    Davis.  135  Cal.  162,  67  Pac.  59. 

9.  People  v.  Davis.  135  Cal.  162.  67  Pac.  59. 

10.  People  v.  Bishop.  134  Cal.  682,  66  Pac. 
976.  A  witness  may  state  from  the  color 
and  smell  that  a  bottle  had  contained  alco- 
hol  People    v.    Fitzgerald,    137    Cal.    546,    70 

Pao.  554.  It  was  further  held  that  if  the 
admission  of  this  proof  was  error,  it  was 
rendered  harmless  by  a  remark  of  the  court, 
in  checking  further  inquiry,  that  others  had 
access  to   the  clothing. 

11.  Defendant  was  accused  of  burning  his 


own  house  to  defraud  insurers.  Holes  were 
bored  In  the  floor  and  filled  with  kerosene. 
A  brace  found  in  the  house  after  the  flre 
was  admitted — People  v.  Bishop,  134  Cal.  682, 
G6    Pac.    97. 

12.  Ray  V,  State  (Tex.  Cr.  App.)  64  S.  W. 
1057. 

13.  Evidence  of  the  burning  of  other 
buildings  as  part  of  the  same  scheme  is  ad- 
missible— State  V.  Jones  (Mo.)  71  S.  W.  680. 
Evidence  of  other  offenses  held  improper — 
State  V.  McCall,  131  N.  C.  798.  Evidence  held 
insufficient — Chapman  v.  State,  157  Ind.  300; 
People  v.  Johnson,  70  App.  Div.  (N.  T.)  308: 
People  v.  Wagner,  71  App.  Div.  (N.  T.)  399. 
In  the  last  cited  case  threats  by  defendant 
and  his  presence  at  the  time  the  fire  started 
wore  shown,  but  there  was  nothing  to  in- 
dicate that  the  fire  was  of  incendiary  origin. 
No  evidence  except  previous  threats — State 
V.  Freeman,  131  N.  C.  725.  Circumstantial 
evidence  held  to  support  a  conviction — Kel- 
ley V.   State    (Tex.   Cr.  App.)    70   S.   W.    20. 

14.  People  v.  Davis,  135  Cal.  162,  67  Pac. 
59. 

15.  Boone  v.  State  (Miss.)  33  So.  172. 

16.  Comp.  Laws,  §  7428,  requires  the  jury 
to  find  the  degree,  but  section  7421  provides 
that  a  general  verdict  of  guilty  refers  to  the 
crime  charged — State  v.  McDonald  (S.  D.) 
91    N.   TV.    447. 

17.  The  assumption  was  that  the  fire  was 
incendiary.  Defendant  had  moved  for  an 
acquittal  because  such  fact  was  not  shown 
— People  V.  Wagner,  71  App.  Div.  (N.  Y.) 
399. 

1.     Definitions.     Assault — State      v.      Mills 


ASSAULT  AND  BATTERY. 


219 


elemental  in  them.^  Intent  to  injure  is  usually  essential.^  In  the  note  are  hold- 
ings as  to  what  is  an  assault.* 

Battery  is  not  essential  to  an  assault  with  intent  to  commit  a  felony.^  As- 
sault is  defined  as  aggravated  by  disparity  of  age  or  condition  of  parties  under 
tlie  Texas  statute.^  Indecent  liberties  taken  without  the  consent  of  the  female 
constitute  an  assault  and  battery.^ 

§  2.  Defenses. — A  school  teacher  may  administer  reasonable  chastisement.** 
Mere  words  do  not  justify  an  assault/  nor  does  a  chastisement  of,  or  indignities 
lo,  defendant's  child.^"  ^Vhere  defendant  struck  the  first  blow  or  willingly  en- 
tered the  combat,  he  cannot  urge  self-defense/^  though  provoked  thereto  by  abusive 
words/-  but  one  who  interferes  to  prevent  injury  to  the  aggressor  is  justified  if 
he  did  not  know  who  started  the  affray.^'  Mere  holding  of  a  knife,  without  overt 
act,  does  not  justify  an  assault.^*  Forcible  recaption  of  personalty  voluntarily 
parted  with  is  not  justified.^'' 

§  3.  Indictment}^ — An  indictment  that  defendant  assaulted,  etc.,  another 
"by  pointing  a  revolver  at  him  in  a  threatening  manner,"  sufficiently  charges  the 
manner  of  the  assault.^^  Matter  of  aggravation  must  be  fully  charged.^®  Con- 
viction may  be  had  under  a  charge  of  a  greater  offense,  provided  it  be  one  which 
includes  assault.^^ 

§  4.     Evidence;  instructions;  verdict;  punishment. ^'^ — In  the  notes  are  cases 


(Del.)    52    Atl.    266;    battery — State    v.    Mills 
(Del.)   52  Atl.  266;  Jacobl  v.  State,  133  Ala.  1. 

2.  See  Homicide,  Robbery,  Rape.  Acces- 
sories. Any  person  aiding  or  abetting-  an 
assault  and  battery  is  liable  therefor — State 
V.  Mills  (Del.)  52  Atl.  266;  Anderson  v.  State 
(Tex.   Cr.   App.)    67   S.   W.   110. 

3.  To  ride  a  horse  toward  another  with- 
out Intent  to  ride  him  down  is  not  an  as- 
sault, though  such  person  is  injured  in  flee- 
ing from  the  apparent  danger — Barnes  v. 
State  (Tex.  Cr.  App.)  72  S.  W.  168.  But  see 
(pointing  pistol) — State  v.  Llewellyn,  93  Mo. 
App.   469. 

4.  Following  and  attempting  to  detain 
a  woman — State  v.  Fulkerson  (Mo.  App.) 
71  S.  W.  704.  Riding  horse  toward  another 
— Barnes  v.  State  (Tex.  Cr.  App.)  72  S.  W. 
168.  Shooting  away  from  prosecutor  — 
State  V.  Hunt,  25  R.  I.  75.  Taking  hold  of 
prosecutor  while  others  dispersed  his  cattle 
— Portenberry  v.  State  (Tex.  Cr.  App.)  72 
S.  W.  59.3.  Going  into  the  house  for  a 
weapon,  it  not  being  brought  into  the  pres- 
ence of  prosecutor,  is  not  an  assault — Sprad- 
ling  V.  State  (Tex.  Cr.  App.)  71  S.  W.  17. 
Indecent  liberties — Walker  v.  State,  132  Ala. 
11.  Making  improper  gesture  to  woman 
— Fuller  V.  State  (Tex.  Cr.  App.)   72  S.  W.  184. 

5.  Knight   v.    State    (Fla.)    32   So.    110. 

6.  A  man  28  years  old,  6  feet  tall,  weigh- 
ing 165  pounds,  is  a  person  of  robust  health 
— Black  V.  State  (Tex.  Cr.  App.)  67  S.  W.  113. 
A  man  57  years  old,  6  feet  2  inches  tall, 
weighing  175  pounds,  is  not  an  aged  person 
—Black  V.  State  (Tex.  Cr.  App.)   67  S.  W.  113. 

7.  Walker    v.    State,    132    Ala.    11. 

S.  Whipping  which  left  marks  on  boy's 
person  held  not  excessive — Stephens  v.  State 
(Tex.   Cr.    App.)    68    S.   W.    281. 

9.  Particularly  when  used  the  day  before 
the  assault — State  v.  Mills   (Del.)   52  Atl.  266. 

10.  Walkley  v.  State,  133  Ala.  183.  In- 
sulting words  to  defendant's  daughter  on  the 
previous  day — Ws.lker  v.  State  (Ga.)  43  S. 
E.    737. 

11.  Johnson   v.   State    (Ala.)    34    So.    209. 


12.  Shaw  V.  State  (Tex.  Cr.  App.)  73  S. 
W.    1046. 

1.3.  Kees  V.  State  (Tex.  Cr.  App.)  72  S. 
W.   855. 

14.  State    V.    Pohl,    170    Mo.    422. 

15.  Lockland  v.  State  (Tex.  Cr.  App.)  73 
S.    W.    1054. 

16.  Indictment  for  indecent  assault  held 
sufficient — State  v,  Fulkerson  (Mo.  App.)  71 
S.  W.   704. 

17.  State  V.  Llewellyn,   93  Mo.  App.  469. 

18.  An  averment  of  "serious  injury"  with- 
out stating  its  nature  and  extent  insufficient 
— State  V.  Battle,  130  N.  C.  655.  Allegation 
of  assault  with  a  deadly  weapon  towit,  a 
scythe  blade  —  Spradley  v.  State,  80  Miss. 
82;  or  a  pistol — Mann  v.  State,  80  Miss.  398, 
sufficient.  The  weapon  need  not  be  one 
named  in  the  statute  (a  brick) — State  v. 
Sims,  80  Miss.  381.  Indictment  under  Texas 
Statute  for  assault  by  robust  person  upon 
an  aged  one — Black  v.  State  (Tex.  Cr.  App.) 
67  S.  W.  113;  or  by  a  male  upon  a  female 
person — Webb  v.  State  (Tex.  Cr.  App.)  68 
S.  W.  276,  held  sufficient. 

19.  A  conviction  of  simple  assault  may 
be  had  on  an  indictment  for  aggravated  as- 
sault— Weiner  v.  State  (Tex.  Cr.  App.)  68 
S.  W.  681;  or  for  assault  with  intent  to 
kill — Sessions  v.  State,  115  Ga.  18;  Com.  v. 
Yarnell,  24  Ky.  Law  Rep.  144;  State  v. 
Washington,  107  La.  298;  State  v.  Kelly,  41 
Or.  20,  68  Pac.  1;  or  for  assault  with  intent 
to  rob — Rambo  v.  State,  134  Ala.  71;  or  for 
assault  with  intent  to  do  great  bodily  harm 
— State  V.  Climie  (N.  D.)  94  N.  W.  574;  or 
for  assault  with  intent  to  rape^Duggan  v. 
State  (Ga.)  43  S.  E.  253;  Caddell  v.  State 
(Tex.  Cr.  App.)  72  S.  W.  1015;  State  v. 
Trusty  (Iowa)  92  N.  W.  677.  But  not  un- 
der an  indictment  for  manslaughter — Peo- 
ple  V.   De  Garmo,    73   App.   Div.    (N.   Y.)    46. 

20.  Where  defendant  assaulted  an  agent 
removing  a  sewing  machine  from  defend- 
ant's house,  evidence  as  to  the  contract  un- 
der which  such  machine  was  obtained  is 
competent — Lockland  v.  State  (Tex.  Cr.  App.) 


220 


ASSAULT  AND  BATTERY. 


Bhowing  the  relevancy  of  evidence  in  particular  prosecutions,  also  its  sufficiency 
to  make  out  a  case  or  defense.-^ 

Instructions  will  be  necessitated  on  any  matter  of  defense  of  which  there  is 
evidence,^-  or  upon  limitation  of  a  right  of  self-defense.^'  Where  there  is  evi- 
dence that  prosecutor  struck  the  first  blow,  a  charge  on  provocation  should  be 
given,-*  and  defendant's  testimony  to  his  intent  requires  a  charge  as  to  use  of 
a  weapon  with  intent  only  to  frighten.^^  If  given  in  answer  to  a  question  by  the 
jury,  they  should  be  specific.^®  An  instruction  on  self-defense  not  requiring  de- 
fendant to  have  been  free  from  fault  is  properly  refused." 

Verdict  guilty  as  charged,"*  or  of  a  specific  offense  charged,  is,  generally 
speaking,  correct.^^  Wliere  the  penalty  affixed  would  apply  to  either  of  two  de- 
grees, the  verdict  should  be  specific  as  to  degree.'" 

Punishments  held  proper  are  shown  in  the  note.'^ 

§  5.  Civil  liahility. — The  liability  of  a  master  for  assault  by  his  servant  is 
elsewhere  trcated.'- 

^Vliai  const iiutes.^^ — The  intent  to  injure  is  essential.'*  Anger  or  malice  need 
not  appear."^  The  assault  need  not  culminate  in  physical  violence,"  and  defend- 
ant need  not  have  been  the  actual  assailant." 


73  S.  W.  1054.  An  altercation  the  previous 
day  may  be  shown,  where  the  evidence  is 
conflicting  as  to  who  w^as  aggressor  in  the 
assault  in  issue — People  v.  Tillman  (Mich.) 
92  N.  W.  499.  Defendant  may  show  that 
the  place  where  the  assault  was  alleged  to 
have  been  committed  w^as  public — Duffy  v. 
People.  197  111.  357.  On  trial  for  assault- 
ing one  who  was  attempting  to  arrest  de- 
fendant, he  rnay  show  the  motives  and  con- 
luct  of  the  person  assailed  —  Spradley  v. 
State,  80  Miss.  82.  On  trial  for  indecent 
issault  bad  repute  of  prosecutrix  and  her 
r4dmissions  of  former  misconduct  may  be 
»hown — Wilson  v.  State  (Tex.  Cr.  App.)  67 
S  W.  106.  Defendant  cannot  state  why  he 
had  the  pistol — Holmes  v.  State  (Ala.)  34 
So  ISO.  Opprobrious  words  used  by  prose- 
cutor cannot  be  shown  in  extenuation  un- 
der Code.  §  4345,  where  the  defendant  was 
the  first  to  use  them — Johnson  v.  State  (Ala.) 
34    So.    209. 

31.  Identification  by  prosecutor,  opposed 
by  alibi  held  insufficient — Duffy  v.  People, 
197  111.  357.  Assault  with  deadly  weapon; 
evidence  sufficient — People  v.  Ametta.  Ill  N. 
Y.  Stal.^  Rep.  177;  People  v.  Maggio,  111  N.  T. 
State  Rep.  204;  V\''erner  v.  State  (Tex.  Cr. 
App.)  68  S.  W.  68;  Black  v.  State  (Tex.  Cr. 
App.)  67  S.  W.  113.  Indecent  assault;  evi- 
dence sufficient — Doyle  v.  Com.,  4  Va.  Sup.  Ct. 
R.  143.  40  S.  E.  92.t:  State  v.  Pulkerson  (Mo. 
App.)  71  S.  W.  704.  Self-defense  held  to 
be  tor  jury — State  v.  Goode,  130  N.  C.  651. 
From  threats  and  the  firing  of  a  pistol  the 
jury  rray  find  that  it  was  loaded — Mazzotte 
V.  Territory  (Ariz.)  71  Pac.  911.  And  see 
Lockland  v.  State  (Tex.  Cr.  App.)  73  S.  "W. 
1054. 

22.  Evidence  of  affray  in  wliich  defend- 
ant shot  one  who  was  attempting  to  dis- 
arm him  held  to  require  instructions  on 
heat  of  passion  and  self-defense — Gordon 
V.  Com..  24  Ky.  Law  Rep.  552.  Evidence 
held  to  require  charge  on  accidental  shoot- 
ing— Calhoun  v.  State  (Tex.  Cr.  App.)  71 
S.  W.  279.  Evidence  of  assault  on  defend- 
ant's daughter  held  to  require  instruction 
on  self-defense — "V^nlliams  v.  State  (Tex.  Cr. 
App.)    70   S.   W.    957. 


23.  Evidence  held  to  require  a  charge  on 
duty  to  retreat — State  v.  McCann  (Or.)  72 
Pac.    137. 

24.  Edgerton  v.  State  (Tex.  Cr.  App.)  68 
S.    W.    678. 

25.  Instructions  for  shooting  in  heat  of 
passion,  without  malice — Howard  v.  Com., 
24  Ky.  Law  Rep.  1301;  Werner  v.  State 
(Tex.   Cr.    App.)    68   S.   W.    681. 

26.  Instruction  defining  assault  held  not 
sufl^cient  answer  to  question  by  jury  as  to 
accident — People  v.  Schlesinger,  70  App.  Dlv. 
(N.  Y.)    199. 

27.  Johnson   v.    State    (Ala.)    34   So.    209. 

28.  Lockland  v.  State  (Tex.  Cr.  App.)  73 
S.    W.    1054. 

29.  A  verdict  of  "guilty  of  aggravated 
assault"  is  good  in  Arkansas,  but  not  one 
of  "guilty  of  assault  with  a  deadly  weapon," 
the  latter  phrase  having  no  technical  signifi- 
cance— In    re    Burns,    113    Fed.    987. 

30.  Williams  v.  State  (Tex.  Cr.  App.)  70 
S.    W.    957. 

31.  Evidence  In  prosecution  for  aggra- 
vated assault  held  to  justify  maximum  pun- 
ishment— Webb  V.  State  (Tex.  Cr.  App.)  68 
S.  W.  276.  $1000  fine  held  not  excessive — 
Doyle  V.  Com.,  4  Va.  Sup.  Ct.  R.  143,  40 
S.   E.    925. 

32.  Master    and    Servant.     Carriers. 

33.  Definition  of  assault  and  battery — 
Butler  V.  Stockdale,  19  Pa,  Super.  Ct.  98; 
Armstrong  v.  Little  (Del.  Super.)  54  Atl.  742. 

34.  Gilmore  v.   Fuller,   198   111.   130. 

3.5.  Catching  hold  of  a  person  in  a  sport- 
ive manner  and  jerking  him  so  as  to  in- 
jure plaintiff — Reynolds  v.  Pierson,  29  Ind. 
App.    273. 

36.  Driving  a  woman  from  the  house 
whereby  she  was  exposed  to  inclement 
weather — Kline  v.  Kline,  158  Ind.  602.  Point- 
ing a  firearm  with  threat  to  shoot — Hictey 
V.    Welch.    91    Mo.    App.    4. 

37.  Accessories:  One  who  merely  ap- 
proves an  assault  by  another  is  not  liable 
— Ryan  v.  Quinn,  24  Ky.  Law  Rep.  1513;  but 
one  who  orders  an  assault  is  jointly  liable 
with  him  who  commits  it^Sellman  v.  Wheel- 
er,   95    Md.    751. 


ASSAULT  AND  BATTERY. 


221 


Defenses. — Eeasonable  force  may  be  used  in  expelling  a  trespasser.^'  One 
who  uses  excessive  force  in  self-defense  is  liable.*^  Mere  provocation  or  abuse  is 
not  a  defense.*"  An  officer  has  no  right  to  strike  a  person  not  under  arrest  for 
disobeying  his  order.*^ 

§  6.  Pleading,  evidence,  and  irial.*^ — A  denial  of  assault  to  an  averment  of 
battery  raises  no  issue,*^  but  denial  of  that  charged  with  allegations  of  a  lesser 
justifiable  one  does.**  In  the  notes  are  collected  instances  of  pleadings  consid- 
ered as  to  sufficiency.*' 

The  burden  of  a  prima  facie  case  is  on  plaintiff.*'  Provocation  is  admissible 
in  mitigation,*^  but  proof  of  a  criminal  conviction  is  not.**  Evidence  of  defend- 
ant's wealth  is  not  admissible.*'  Other  facts  admissible  generally/"  or  as  prov- 
ing damages  or  extent  of  injury/^  or  provocation,"-  as  well  as  sufficiency  of  evi- 
dence,^^  are  discussed  in  the  note.  Eules  of  measure  and  proof  of  damages  are 
the  subject  of  a  forthcoming  article  but  illustrative  cases  are  given."*  An  instruc- 
tion that  one  who  "caused"  or  "approved"  an  assault  is  liable  is  misleading."" 


38.  Illinois  Steel  Co.  v.  Waznius,  101  111. 
App.  535;  Hannabalson  v.  Sessions,  116  Iowa, 
457. 

39.  Gutzman  v.  Clancy,  114  "Wis.  589;  Arm- 
strong V.   Little    (Del.   Super.)    54   Atl.    742. 

40.  Palmer  v.  Winston  Salem  R.  &  E.  Co., 
131  N.  C.  250;  Armstrong  v.  Little  (Del. 
Super.)    54   Atl.    742. 

41.  Ryan  v.  Quinn,  24  Ky.  Law  Rep.  1513. 

42.  Amendment  of  answer  before  verdict 
allowed — Hannabalson  v.  Sessions,  116  Iowa, 
457.  Costs — Comp.  Laws  1897,  §  11,258,  al- 
lowing no  costs  on  recovery  of  less  than  $50 
applies  to  recovery  against  master  for  as- 
sault by  servant — Johnson  v.  Detroit,  T.  & 
A.  A.   R.   Co.    (Mich.)    90   N.   W.   274. 

43.  Zwerling  v.  Annenberg,  38  Misc.  Rep. 
(N.  Y.)    169. 

44.  And  the  burden  is  on  plaintiff — Berk- 
ner  v.  Danneberg  (Ga.)   43  S.  E.  463. 

45.  Averments  authorizing  punitive  dam- 
ages sufficient — Johnson  v.  Bedford,  90  Mo. 
App.  43.  Petition  against  police  officer  need 
not  allege  that  battery  was  without  war- 
rant or  order— Connelly  v.  American  B.  & 
T.  Co.,  24  Ky.  Law  Rep.  714.  Petition  held 
sufficient — Long  v.  McWilliams,  11  Okl.  562, 
69  Pac.  882.  Self  defense:  Answer  that 
plaintiff  began  difficulty  but  not  alleging 
that  defendant  acted  in  self  defense  bad — 
Ryan  v.  Quinn,  24  Ky.  Law  Rep.  1513.  If 
justification  appears  it  is  effectual  though 
there  was  no  plea  son  assault  demesne — 
Ryan   v.    Quinn,    24    Ky.    Law    Rep.    1513. 

46.  The  burden  is  on  plaintiff  to  show 
the  assault  but  not  to  negative  self-defense 
— Orscheln  v.  Scott.  90  Mo.  App.  352;  Sell- 
man    v.    Wheeler,    95    Md.    751. 

47.  Palmer  v.  Winston  Salem  R.  &  E.  Co., 
131  N.  C.  250;  Genung  v.  Baldwin,  77  App. 
Div.  (N.  Y.)  584;  Berkner  v.  Dannenberg 
(Ga.)  43  S.  E.  463.  Contra, — Armstrong  v. 
Rhoades    (Del.   Super.)    53   Atl.   435. 

48.  Armstrong  v.  Rhoades  (Del.  Super.) 
53  Atl.  435;  Edwards  v.  Wessinger,  65  S.  C. 
161. 

AO.  Beavers  v.  Bowen,  24  Ky.  Law  Rep. 
882.  70  S.  W.  195. 

50.  On  trial  for  an  assault  committed  by 
an  officer  preserving  order  at  the  polls  it 
was  held  that  rules  of  a  political  party  were 
inadmissible.  That  evidence  that  the  elec- 
tion was  declared  off  because  of  interfer- 
ence   w^as    inadmissible — Ryan    v.    Quinn,    24 


Ky.  Law  Rep.  1513.  Evidence  of  plaintiff's 
turbulent  character  held  inadmissible,  and 
in  no  case  can  bad  character  be  proved  by 
specific  acts — Houston  &  T.  C.  R.  Co.  v.  Bell 
(Tex.  Civ.  App.)  73  S.  W.  56. 

51.  Evidence  of  time  of  plaintiffs  disa- 
bility proper  though  no  damages  claimed 
for  loss  of  time — Gutzman  v.  Clancy,  114 
Wis.  589.  Evidence  of  physician  as  to  in- 
jury held  competent  though  he  did  not  know 
the  cause  thereof — Sellman  v.  Wheeler,  95 
Md.    751. 

52.  Evidence  of  defamatory  publications 
by  defendant  long  before  not  admissible  in 
mitigation — Genung  v.  Baldwin,  75  App.  Div. 
(N.   Y.)    195. 

53.  Elvidence  held  sufficient.  Question  as 
to  sufficiency  of  replevin  proceedings  in  ac- 
tion against  officer  serving  writ — McKinstry 
V.  Collins,  74  Vt.  147.  Evidence  as  to  con- 
spiracy between  defendants  held  for  the  jury 
— Orscheln  v.  Scott,  90  Mo.  App.  352.  Evi- 
dence of  conspiracy  insufficient — Ryan  v. 
Quinn,  24  Ky.  Law  Rep.  1513.  On  undisput- 
ed evidence  a  verdict  is  properly  directed — 
Genung  v.  Baldwin,  75  App.  Div.   (N.  Y.)   195. 

54.  See  Damages.  Elements  of  compen- 
satory damages — Armstrong  v.  Rhoades  (Del. 
Super.)  53  Atl.  435.  Where  a  woman  was 
driven  from  the  house  at  the  point  of  a 
pistol  and  suffered  from  exposure  to  weath- 
er, damages  for  fright  and  mental  suffering 
may  be  recovered — Kline  v.  Kline.  158  Ind. 
602.  Amount.  Substantial  damages  not 
allo-wed  for  technical  trespass — Slingerland 
V.  Gillespie,  67  N.  J.  Law,  385.  $300  not  ex- 
cessive where  illness  was  caused  and  plain- 
tiff's arm  w^as  disabled  several  weeks — Long 
V.  McWilliams,  11  Okl.  562,  69  Pac.  882.  $500 
for  indecent  familiarities  held  not  excessive 
— Bruske  v.  Neugent  (Wis.)  93  N.  W.  454. 
Evidence  held  not  to  justify  punitive  dam- 
ages— Orscheln  v.  Scott,  90  Mo.  App.  352. 

55.  Ryan  v.  Quinn,   24  Ky.  Law  Rep.   1513. 

Miscellaneous  decisions  respecting  instruc- 
tions. Instruction  that  day  laid  in  declara- 
tion is  not  essential  is  correct  though  the 
evidence  fixes  the  daj'  and  there  is  proof  of 
an  alibi — Bruske  v.  Neugent  (Wis.)  93  N. 
W.  454.  Instructions  held  to  be  conflicting — 
Stone  v.  Heggie  (Miss.)  34  So.  146.  Instruc- 
tion as  to  self-defense  held  proper  where 
plaintiff  attempted  to  ride  defendant  down — 
Halley  v.  Tichenor  (Iowa)   94  N.  W.  472.     In- 


222 


ASSIGNMENTS. 


ASSIGNMENTS. 


S  1.      Rigbts   As.vigrnable. 


§  2.  l{e>]ui.sites  uud  ^ullicienoy  of  Express 
Assignment. 

§  o.  Coustruetive  or  Equitable  Assigu- 
nieuts. 


I       §  4.     Construction,    Interpretation    and   Ef- 
fect. 

§  5.     Enforcement    of    Assij^uiuent    uud    of 
Rights  Assigned. 


§  1.  Eights  susceptible  of  assignment. — ^IMatter  not  in  esse  may  be  assigned,^ 
or  demands  not  yet  due,-  such  as  rights  to  accrue  under  an  unperformed  contract,' 
or  wages  to  be  earned  under  an  existing  contract,*  and  the  rule  is  not  changed  by 
statutes  prohibiting  what  is  known  as  the  "truck  system;"^  but  there  can  be  no 
assignment  of  a  possibility  of  future  employment.*  An  heir  cannot  assign  his  ex- 
pectancy.'^ 

An  office  or  agency  involving  personal  confidence  cannot  be  assigned,*  nor 
contracts  for  personal  services."  It  cannot  be  objected  that  a  contract  is  not 
assignable  because  one  of  trust  and  confidence,  where  there  is  a  consent  to  its 
transfer  and  payment  to  the  transferee."  An  agreement  to  buy  merchandise  is 
not  so  personal  that  it  cannot  be  assigned. ^^  A  contract  between  a  railroad  com- 
panv  and  a  lumber  company  whereby  the  lumber  company  agrees  to  ship  entirely 
bv  the  railroad  cannot  be  assigned  so  as  to  bind  the  railroad  without  its  assent.^^ 
A  covenant  not  to  engage  in  business  is  assignable.^^  An  agreement  by  a  corpora- 
tion to  construct  and  operate  a  street  railroad  may  be  assigned,"  as  may  a  con- 
tract empowering  a  railroad  company  to  take  water  from  a  spring  and  erect  a 
pumping  works.^^  An  assignment  of  the  salary  of  a  public  officer  to  be  earned 
in  the  future  is  void.^®  "the  assignability  of  a  contract  may  be  restricted  by 
asrreement,^^ 


struction  as  to  self-defense  against  officers 
not  disclosing'  their  purpose,  correct — Stuck 
V.  Yates  (Ind.  App.)  66  N.  E.  177.  Instruc- 
tion as  to  exemplary  damages  incorrect — 
proper  form  stated — Ryan  v.  Quinn.  24  Ky. 
Law  Rep.  1513.  Instruction  as  to  powers  of 
officer  preserving  order  at  polls,  incorrect — 
Ryan  v.  Quinn,  24  Ky.  Law  Rep.  1513.  In- 
struction held  to  authorize  consideration  of 
plaintiff's  epileptic  condition  though  it  should 
have  been  more  specific — St.  Louis  Trust 
Co.  V.  Murmann,  90  Mo.  App.  555.  Evidence 
held  to  require  instruction  as  to  injury  im- 
pairing plaintiff's  capacity  to  work — Seliman 
v.  Wheeler,  95  Md.  751.  Evidence  held  not 
to  require  instruction  as  to  recaption  of 
property — Keller   v.   Lewis.    116    Iowa,    369. 

1.  Such  assignments  operate  as  present 
contracts,  and  attach  to  matter  assigned 
when  it  comes  into  being — VS'illiams  v.  West 
Chicago  St.  R.  Co..  101  111.  App.  291;  as  a 
right,  covered  by  a  mortgage,  to  receive  se- 
curities to  be  issued — Central  Trust  Co.  v. 
West  India  Imp.  Co..  169  N.  Y.  314;  Brewer 
v.   Griesheimer.   104  111.  App.   323. 

2.  Citizens'  Trust  &  Surety  Co.  v.  Howell, 
19    Pa.    Super.    Ct.    255. 

3.  Citizens'  Trust  &  Surety  Co.  v.  Howell, 
19   Pa.    Super.   Ct.    255. 

4.  Tolman  v.  Union  Casualty  &  Surety  Co.. 
90  !^Io.  App.  274.  This  whether  the  employ- 
ment is  of  certain  or  uncertain  duration  or 
whether  the  assignment  is  as  security  for 
present  or  future  advances  or  an  outright 
sale — Bell  v.  Mulholland,  90  Mo.  App.  612; 
Brewer  v.  Griesheimer.  104  111.  App.  323; 
Wenhan  v.  Mallin,   103   111.  App.    609. 

5.  Brewer  v.  Griesheimer,  104  111.  App. 
323. 

6.  Bell  V.   Mulholland,    90  Mo.   App.    612. 


7.  In  re  Wickersham's  Estate,  138  Cal. 
355,  70  Pac.  1076. 

8.  Colton  v.  Raymond  (C.  C.  A.)  114  Fed. 
863.  A  contract  to  rent  a  space  in  a  de- 
partment store  with  an  agreement  to  furnish 
services  is  not  assignable  without  mutual 
consent — Moore  v.  Thotapson,  93  Mo.  App. 
336. 

9.  Applying  to  a  contract  to  do  county 
printing — Campbell  v.  Board  of  Com'rs,  64 
Kan.   376.   67   Pac.   866. 

10.  Employment  of  an  architect  by  county 
commissioners  to  draft  plans — Weatherhogg 
V.   Board    of   Com'rs.    158    Ind.    14. 

11.  Liberty  Wall  Paper  Co.  v.  Stoner  Wall 
Paper   Mfg.    Co.,    170    N.    T.    582. 

13.  Tifton,  T.  &  G.  R.  Co.  v.  Bedgood 
(Ga.)    43   S.    E.    257. 

13.  Fleckenstein  Bros.  Co.  v.  Flecken- 
stein   (X.  J.  Eq.)   53  Atl.  1043. 

14.  Under  both  general  law  and  Revised 
Statutes,  art.  308.  providing  for  the  assign- 
ment of  non-negotiable  instruments — Lake- 
view  Land  Co.  v.  San  Antonio  Traction  Co., 
95  Tex.  252.  A  promise  to  build  a  side- 
track in  consideration  of  release  from  lia- 
bility for  loss  by  fire  is  assignable  by  a 
railroad  company  (Rev.  St.  Tex.  art.  308) — 
Missouri,  K.  &  T.  R.  Co.  v.  Carter,  95  Tex. 
461. 

15.  Rev.  St.  art.  308,  makes  the  interest 
of  an  obligee  of  any  non-negotiable  w^ritten 
instrument  assignable — Houston  &  T.  C.  R. 
Co.  v.   Cluck    (Tex.   Civ.   App.)    72  S.  W.   83. 

16.  City  of  Chicago  v.  People.  98  111.  App. 
517;  First  Nat.  Bank  v.  State  (Neb.)  94  N.  W. 
633.  An  agreement  by  which  a  partner  ap- 
pointed boiler  inspector  agrees  to  allow  his 
salary  to  go  to  the  partnership  is  not  void 
as  assignment  of  unearned  salary — McGregor 


ASSIGNMENTS. 


223 


Eights  of  action  which  survive  may  be  assigned,^'  though  they  may,  by  statute, 
be  nonassignable  before  suit  is  brought.^®  An  assignment  of  a  portion  of  whatever 
may  be  recovered  in  an  action  or  by  way  of  compromise  is  not  against  public  policy 
as  preventing  compromise  of  disputed  claims.^"  A  grantor's  right  of  re-entry  for 
condition  broken  is  assignable  after  breach.*^  The  right  to  charge  a  partner's  in- 
dividual property  for  firm  debts  and  a  judgment  therefor  is  assignable.^^  A  claim 
for  damages  may  be  wholly  or  partially  assigned,^^  but  in  some  jurisdictions  a 
right  of  action  sounding  in  tort  for  unliquidated  damages  is  not  assignable,^*  as 
also  a  right  to  sue  for  the  balance  due  on  an  insurance  policy  after  settlement  un- 
der mistake  as  to  the  atnoimt.'^  Assignments  of  distinct  claims  to  one  person  are 
not  invalidated  by  the  fact  that  the  sum  over  which  a  particular  court  has  juris- 
diction is  thereby  exceeded.'^  The  right  to  maintain  an  action  may  pass  with  an 
assignment  of  a  substantial  property  right.^^  A  right  of  action  limited  to  par- 
ticular persons  is  nonassignable,-^  so  a  statutory  right  af  redemption  from  fore- 
closure is  not  assignable.-^  An  assignment  void  as  a  conveyance  may  be  enforced 
by  way  of  estoppel.^" 

§  2.  Requisites  and  sufficiency  of  express  assignments. — Assignments  may  be 
by  parol,^^  as  in  case  of  a  debt,^^  in  which  instance  ':iaey  may  be  established  by  acts 
and  conduct  of  the  parties.^^  An  assignment  of  a  right  of  action  need  not  be 
witnessed.^*  Written  evidences  of  debt  may  be  i-ssig-nable  by  delivery.^'^  A  writ- 
ten evidence  of  assignment  may  be  transferred  by  delivery  of  possession  and  in- 
dorseinent.^^     Where  a  contract  is  personal,  consent  to  its  assignment  may  be  pre- 


V.    McGreg-or    (Mich.)    9   Det.    Leg.   N.    118,    90 
N.   W.    284. 

17.  T\''here  a  building  contract  contains 
an  agreement  tliat  there  sliall  be  no  assign- 
ment without  the  architect's  consent,  an 
assignee  without  such  consent  derives  no 
rights — Mueller  v.  Northwestern  University, 
105  III.  236.  A  provision  in  a  building  con- 
tract that  rights  thereunder  shall  not  be 
assigned  without  consent  of  the  architect 
is  not  waived  by  failure  to  repudiate  an  as- 
signment, of  which  the  notice  to  the  own- 
ers was  sufficient  only  to  afford  them  knowl- 
edge, after  investigation,  that  the  contract- 
or was  to  collect  the  amount  due  and  to  ac- 
count to  his  assignee  therefor- — Mueller  v. 
Northwestern    University,    195    111.    236. 

18.  A  portion  of  a  cause  of  action  against 
a  railroad  company  for  injuries  to  the  per- 
son may  be  assignable  before  suit.  Sayles' 
Ann.  Civ.  St.  art.  3353a,  providing  that  causes 
of  action  for  personal  injuries  not  resulting 
in  death  shall  survive — Galveston,  H.  &  S. 
A.  R.  Co.  v.  Ginther  (Tex.)  72  S.  W.  166.  Ac- 
tions to  recover  penalty  for  exaction  of 
usurious  interest  under  Rev.  St.  art.  3106 — 
Taylor  v.  Sturgis  (Tex.  Civ.  App.)  68  S.  W. 
538.  Rights  of  the  owner  of  a  horse  and 
cutter  to  sue  for  an  injury  resulting  from  a 
defective  highway  may  pass  by  assignment 
— Bolster  v.  Ithaca  St.  R.  Co.  (N.  Y.)  79 
App.   Div.    239. 

19.  Action  by  wife  for  death  of  husband, 
construing  Rev.  St.  arts.  3025,  4647 — South- 
ern Pac.  Co.  V.  Winton.  27  Tex.  Civ.  App.  503. 
A  cause  of  action  for  personal  injuries  is 
assignable  before  suit  brought — Galveston, 
H.  &  S.  A.  R.  Co.  V.  Ginther  (Tex.  Civ.  App.) 
70   S.   W.    96. 

20.  Galveston,  H.  &  S.  A.  R.  Co.  v.  Ginther 
(Tex.)    72   S.    W.    166. 

21.  Bouvier  v.    Baltimore   &  N.   Y.   R.   Co 
67  N.  J.  Law,  281. 


22.  Right  preserved  by  Code,  §  27 — Wood 
V.  Carter  (Neb.)   93  N.  W.  158. 

23.  Breach  of  warranty — McConaughey  v. 
Bennett's  Ex'rs,  50  W.  Va.  172.  Claim  of  a 
tenant  against  his  landlord — United  States 
Casualty  Co.  v.  Bagley  (Mich.)  8  Det.  Leg. 
N.    843,   87   N.   W.    1044,    55   L.    R.   A.    616. 

24.  A  right  of  action  by  a  widow  to  re- 
cover for  the  wrongful  death  of  her  husband 
is  not  assignable  before  verdict — Marsh  v. 
Western  N.   Y.  &  P.   R.   Co.,   204   Pa.   229. 

35.  Goodson  V.  National  Masonic  Ace. 
Ass'n,   91   Mo.   App.    339. 

26.  So  held  in  the  case  of  claims  for  kill- 
ing stock — Henderson  v.  Detroit  &  M.  R. 
Co.   (Mich.)    9  Det.  Leg.  N.   386,   91  N.  W.   630. 

27.  So  an  action  to  avoid  a  fraud  may  be 
maintained  where  incidental  to  a  subsisting 
substantial  right — National  Valley  Bank  v. 
Hancock  4  "Va.  Sup.  Ct.  Rep.  20,  40  S.  E.  611. 

28.  Bank's  right  of  action  to  have  trans- 
fers of  bonds  by  its  directors  to  its  presi- 
dent, set  aside — Smith  v.  Pac.  Bank,  137  Cal. 
363,    70   Pac.   184. 

29.  Terry   v.    Allen,    132    Ala.    657. 

30.  In  re  Wickersham's  Estate,  138  Cal. 
155,  70  Pac.  1076. 

31.  Over  claims  of  subsequent  attaching 
creditors — Beard  v.  Sharp,  23  Ky.  Law  Rep. 
1582. 

.33.  Forsyth  v.  Ryan  (Colo.  App.)  68  Pac. 
1055. 

33. 
1055. 

34.  An  assignment  of  a  right  to  annul 
a  judicial  sale  need  not  be  by  authentic  act — 
Viguerie   v.    Hall,    107   La.    757. 

35.  Checks  for  services  payable  In  goods 
at  the  employer's  store  are  assignable  by 
delivery  (Sand.  &  H.  Dig.,  §  489) — Martin- 
Alexander  Lumber  Co.  v  Johnson,  70  Ark. 
215. 

36.  Twelfth  Ward  Bank  v.  Samuels  (N 
Y.)    71   App.  Div.   168. 


Forsyth  v.   Ryan    (Colo.  App.)    68  Pac. 


224 


ASSIGNMENTS. 


sumed  from  acquiescence."  An  executory  agreement  to  assign  does  not  pass  legal 
title.^^  The  person  liable  cannot  question  the  consideration  for  the  assignment  of 
a  elaim/^  nor  is  his  consent  necessary  ;^^  but  before  a  partial  assignment  may  be 
enforced  at  common  law  the  debtor  must  assent,"  though  assent  is  not  necessary 
to  its  enforcement  in  equity  if  all  parties  are  before  the  court  ;*^  so  an  order  drawn 
on  a  debtor  in  favor  of  a  third  person  must  be  accepted  to  amount  to  an  assign- 
ment,**    The  debtor  cannot  object  that  the  debt  is  stated  at  less  than  its  amount.** 

As  to  third  persons,  a  coiisideraiion  is  immaterial,*^  or  where  the  only  defense 
^ade  is  an  accord  and  satisfaction.*^  An  assignment  under  seal  will  be  presumed 
.o  be  on  good  consideration.*^  A  mistake  in  the  name  by  which  a  claim  is  as- 
signed will  not  invalidate  it.*' 

On  assignment  of  a  claim,  notice  to  the  debtor  is  unnecessary  except  as  against 
junior  assignees.*^     Priorities  between  assignments  may  depend  on  notice.^" 

Record. — An  assignment  of  part  of  a  cause  of  action  before  suit  need  not  be 
filed  where  there  is  actual  notice,  though  there  is  a  statutory  requirement  that 
sales  of  judgment  or  causes  of  action  shall  be  acknowledged,  filed,  and  noted  on 
^he  judgment  or  trial  docket.^^ 

§  3.  Constructive  or  equitable  assignments. — Any  order,  writing,  or  act  which 
makes  an  appropriation  of  a  fund  amounts  to  an  equitable  assignment  thereof,°^ 
so  an  order  on  a  specified  fund  operates  pro  tanto;^^  but  it  must  be  drawn  on 
a  particular  fund,^*  and  must  be  accepted  by  the  party  on  whom  it  is  drawn."*' 


37.  Consent  to  assignment  of  the  privi- 
lege of  conducting  a  shoe  department  in  a 
department  store  may  be  shown  by  permis- 
sion to  the  assignee  to  continue  in  posses- 
sion— Moore   V.    Thompson,    93   Mo.   App.    336. 

38.  After  such  an  agreement,  the  assign- 
or may  still  maintain  an  action  in  his  own 
name — National  City  Bank  of  Grand  Rapids 
V.  Torrent  (Mich.)  9  Det.  Leg.  N.  49,  89  N. 
W.    938. 

39.  A  defendant  railroad  company  can- 
not where  a  stock  claim  is  assigned  by  writ- 
ing which  recites  a  valuable  consideration, 
object  to  the  assignment  on  the  ground  that 
the  assignee  was  to  turn  over  the  proceeds 
and  was  not  the  owner — Henderson  v.  De- 
troit &  M.  R.  Co.  (Mich.)  9  Det.  Leg.  N.  386. 
91   N.    W.    630. 

40.  Kingsbury  v.  Joseph,  94  Mo.  App.  298. 

41.  Rivers  v.  A.  &  C.  Wright  &  Co.  (Ga.) 
43    S.    E.    499. 

42.  Rivers  v.  A.  &  C.  "Wright  &  Co.  (Ga.) 
43    S.   E.    499. 

43.  Andrews   v.    Frierson    (Ala.)    33    So.    6. 

44.  Colorado  School  Land  Leasing  &  Min- 
ing Co.  V.  Ponick  (Colo.  App.)    66  Pac.  458. 

45.  Forsyth  v.  Ryan  (Colo.  App.)  68  Pac. 
1055. 

46.  Phipps  v.  Bacon   (Mass.)    66  N.  E.   414. 

47.  McDonough  v.  Aetna  Life  Ins.  Co. 
(N.   Y.)    38   Misc.   Rep.   625. 

4S.  Claim  against  Colorado  School  Land 
Leasing  &  Mining  Company,  assigned  sub 
nom.  Colorado  School  Land  Mining  &  Leas- 
ing Company — Colorado  School  Land  Leas- 
ing &  Mining  Co.  v.  Ponick  (Colo.  App.) 
66   Pac.    458. 

49.  Where  accounts  and  bills  receivable 
were  transferred  as  collateral  for  a  loan — 
Young  V.  Upson,  115  Fed.  192;  Houser  v. 
Richardson,  90  Mo.  App.  134.  On  assign- 
ment of  equitable  interest,  the  assignee  must 
notify  the  trustee  to  protect  himself  against 
junior  assignees — Houser  v.  Richardson,  90 
Mo.    App.    134. 


50.  A  contract  right  to  an  assignment  has 
no  priority  over  a  subsequent  assignment, 
unless  the  debtor  and  subsequent  assignees 
both  have  notice  prior  to  the  subsequent 
assignment — Enochs-Havis  Lumber  Co.  v. 
Newcomb,    79    Miss.    462. 

51.  Sayles'  Ann.  Civ.  St.  art.  4647 — Gal- 
veston, H.  &  S.  A.  R.  Co.  V.  Ginther  (Tex.) 
72    S.    W.    166. 

52.  As  where  by  an  instrument  In  writ- 
ing addressed  to  a  city  treasurer  and  re- 
corded, by  which  it  w^as  agreed  to  pay  claim- 
ants an  amount  due  for  services  as  a  fire- 
man— Harlow  v.  Bartlett,  96  Me.  294;  Mc- 
Conaughey  v.  Bennett's  Ex'rs,  50  W.  Va.  172. 
Sufficiency  of  assignment  of  notes  and  book 
accounts— Smith  v.  Meyer,  84  Minn.  455.  An 
agreement  to  pay  50  per  cent  of  any  sum  re- 
covered in  any  proceedings  which  an  attor- 
ney should  deem  it  advisable  to  take  to  se- 
cure compensation  for  the  taking  of  land 
for  a  street  amounts  to  an  equitable  assign- 
ment— Deering  v.  Schreyer,  171  N.  Y.  451.  An 
instrument  reciting  that  it  had  empowered 
petitioner  and  a  banker  to  make  certain 
sales,  and  had  agreed  to  allow  petitioner 
a  per  cent  on  purchase  price  received  from 
his  sales,  and  directed  the  banker  to  pay 
such  per  cent  from  the  purchase  money  to 
petitioner,  operates  as  an  equitable  assign- 
ment giving  the  petitioner  a  lien  on  the 
funds — Leupold    v.    Weeks.    96    Md.    280. 

53.  Willard  v.  Bullen,  41  Or.  25,  67  Pac. 
924.  Order  on  a  fund  due  a  municipal  con- 
tractor filed  with  the  proper  city  officers — 
Dickerson  v.  Spokane,  26  Wash.  292,  66  Pac. 
381. 

54.  Izzo  V.  Leddington  (N.  Y.)  79  App. 
Div.    272. 

55.  So  an  agreement  that  a  third  person 
shall  collect  money  and  apply  it  to  a  par- 
ticular indebtedness  is  not  an  assignment, 
until  the  third  person  has  agreed  to  make 
such  application — Hanchey  v.  Hurley,  129 
Ala.   306.     There  must  be  an  acceptance  be- 


ASSIGNMENTS. 


225 


Delivery  of  a  check  for  payment  of  notes  against  a  deposit  subject  to  check  is  an 
assignment  pro  tanto/"  though,  contra,  a  bank  check  for  a  portion  of  a  deposit 
does  not  at  the  time  of  delivery  operate  as  an  assignment  pro  tanto.^^  A  mere 
promise  to  pay  from  a  particular  fvind  does  not  amount  to  an  equitable  assign- 
ment/^ or  to  pay  a  debt  from  a  fund  to  be  created.^*  A  power  of  attorney  tcr 
collect  operates  an  equitable  assignment.®"  An  agreement  to  pay  an  attorney  a 
certain  amount  on  settlement  or  recovery  of  a  claim  does  not  amount  to  an  equitable 
assignment/^  but  an  agreement  to  pay  attorneys  compensation  from  an  appro- 
priation to  be  secured  by  them  has  such  elTect.^^ 

§  4.  Construction,  inter-pr elation,  and  effect.^^ — Assignees  of  nonnegotiable 
choses  in  action  take  subject  to  existing  equities.®*  An  assignment  of  the  earn- 
ings of  a  threshing  machine  cannot  be  enforced  against  an  innocent  purchaser 
without  notice.®"  After  assignment  of  an  equitable  interest  and  notice  to  the 
trustee,  the  assignee's  rights  attach  to  the  property  itself.®®  Wliere  an  attorney  is 
assigned  one-third  of  a  cause  of  action,  the  defendant  with  notice  will  be  liable 
to  the  attorney  for  such  portion  of  a  sum  paid  directly  to  the  client  b}''  way  of 
compromise  against  the  attorney's  rights.®^  The  assignee  of  corporate  stock  ac- 
quires rights  accruing  to  his  assignor.®*  When  certain  shares  of  stock  are  assigned 
to  the  receiver  by  an  instrument  vesting  him  with  "rights  of  an  owner  so  far 
as  regards  sale,  disposition,  and  management,"  dealings  with  the  stock  by  the 
receiver  after  the  death  of  the  assignor  for  the  benefit  of  all  parties  in  interest 
cannot  be  attacked  by  the  assignor's  administrator  for  the  reason  that  he  did  not 
consent  to  them.®®  An  agreement  to  sell  bonds  in  litigation  does  not  convey  a 
judgment  regarding  them.'^°  On  an  equitable  assignment  of  rights  under  a  con- 
tract, the  assignee  must  show  that  his  assignor  has  so  performed  as  to  be  entitled 
to  payment.^^     An  assignment  of  moneys  to  become  due  under  a  contract  may  not 


fore  an  Implied  request  of  the  creditor  that 
the  debtor  pay  the  debt  to  a  third  person, 
will  amount  to  an  assig-nment — Shackelford 
V.  M.  C.  Kiser  Co.  (Ala.)  31  So.  77.  An 
instrument  reciting  that  for  value  received, 
the  makers  "hereby  sell  and  assign"  a  cer- 
tain amount  of  "any  money  due  or  to  be- 
come due,"  and  containing  a  request  to  pay 
persons  named  out  of  any  moneys  becoming 
due  or  due  on  an  account  mentioned,  and  to 
charge  the  same  to  the  dravsrers,  is  not  an 
assignment,  but  is  an  order  or  bill  of  ex- 
change, which  must  be  accepted,  as  required 
by  Act  1899,  §  132— Nelson  v.  Nelson-Bennett 
Co.   (Wash.)   71  Pac.  749. 

56.  Staninger   v.   Tabor,   103   111.   App.    330. 

57.  Donohoe-Kelly  Banking  Co.  v.  South- 
ern Pac.  Co.,  138  Cal.  183,  71  Pac.  93. 

58.  Phillips  V.  Hogue,  63  Neb.  192;  Addi- 
son V.  Enoch,  168  N.  T.  658. 

59.  So  held  on  an  agreement  to  transfer 
bonds  to  be  thereafter  issued  in  considera- 
tion of  an  assignment  of  a  judgment — Cush- 
ing  V.  Chapman,   115  Fed.   237. 

60.  Power  of  attorney  conferring  on  a 
bank  full  authority  to  collect  all  sums  due 
for  government  work,  amounts  to  an  equi- 
table assignment  of  the  entire  amount  to  be- 
come due,  including  a  percentage  retained 
as  a  guaranty  fund.  So  held  awarding  the 
assignment  priority  over  a  subsequent  as- 
signment of  the  percentage  retained  to  a 
person  without  notice — National  Bank  of 
Republic  v.  United  Security  Life  Ins.  &  Trust 
Co..   17   App.  D.   C.   112. 

61.  Randel  V.  Vanderbilt  (N.  T.)  75  App. 
Div.   313. 


62.  Sanborn  v.  Maxwell,  18  App.  D.  C.  245. 

63.  On  an  agreement  to  assign  so  much 
of  a  claim  as  should  be  unsecured  at  a  cer- 
tain time,  a  garnishment  in  a  suit  on  the 
claim  may  be  regarded  as  security — Nation- 
al City  Bank  of  Grand  Rapids  v.  Torrent 
(Mich.)  9  Det.  Leg.  N.  49,  89  N.  W.  938. 
Where  there  is  an  equitable  assignment  of 
50%  of  an  award  in  condemnation,  the 
amount  of  a  mortgage  ordered  paid  by  the 
court  must  be  deducted  in  determining  the 
sum  transferred,  though  the  owner  was  not 
bound  to  pay  such  mortgage — Deering  v. 
Schreyer,  171  N.  T.  451. 

64.  Third  Nat.  Bank  v.  Western  &  A.  R. 
Co.,  114  Ga.  890.  So  the  assignee  of  a  cost 
bill  takes  subject  to  any  right  of  off-set — 
Northwestern  &  Pacific  Hypotheek  Bank  v. 
Rauch    (Idaho)    66   Pac.   807. 

65.  Rydson  v.  Larson  (Neb.)  93  N.  W.  195. 

66.  Houser  v.  Richardson,  90  Mo.  App.  134. 

67.  Galveston,  H.  &  S.  A.  R.  Co.  v.  Gin- 
ther   (Tex.)    72  S.  W.   166. 

68.  Where  a  corporation  taking  over  an- 
other agrees  to  pay  its  stockholders  a  cer- 
tain sum,  the  assignee  of  a  shareholder  may 
recover  an  amount  paid  his  assignor  under 
the  agreement  though  he  may  nbt  bring  an 
action  against  the  corporation — Bacon  v. 
Grossmann   (N.  Y.)    71  App.   Dlv.   574. 

69.  McCartney  v.  Earle  (C.  C.  A.)  116 
Fed.   462. 

70.  Smith  V.  Pac.  Bank,  137  Cal.  363,  70 
Pac.   184. 

71.  Goldengay  v.  Smith,   62  N.  J.  Eq.   354. 


Cur.  Law — 15. 


22b 


ASSIGNMENTS. 


deprive  the  assignor  of  the  right  to  collect  such  moneys/^  The  holders  of  a 
fund  cannot  contend  that  nothing  was  due  the  assignor  where  they  have  led  the 
assignee  to  believe  that  only  the  amount  was  in  controversy  and  to  be  fixed  by 
the  court."  Before  acceptance  by  the  assignee,  an  employer  is  not  released  by 
an  assignment  of  the  contract  of  employment.'^*  A  contract  by  a  lessor  to  save 
a  lessee  harmless  for  damages  on  account  of  an  adverse  claim  cannot  be  assigned 
to  the  adverse  claimant  so  as  to  permit  a  recovery  against  the  lessor  of  rent  paid 
under  the  lease.'" 

§  5.  Enforcement  of  assignment  and  of  rights  assigned. — An  action  at  law 
mar  be  brought  on  an  equitable  assignment."^®  A  consideration  is  not  necessarj^  to 
enable  an  absolute  assignee  to  sue  in  his  own  name/"  but  an  assignee  for  collec- 
tion cannot  sue  in  his  own  name/*  though  one  who  has  agreed  to  use  the  proceeds 
for  the  benefit  of  the  assignor  may  recover.''^  Where  by  statute  permission  is 
given  an  assignee  to  sue  in  his  own  name,  permission  to  sue  in  the  name  of  the 
assio-nor  is  immaterial.®"  The  assignor  of  a  chose  in  action  need  not  be  made 
a  party  to  an  action  thereon  by  the  assignee.*^  The  assignee  of  a  subcontractor  on 
piiblic  work  may  sue  in  the  assignor's  name.*^  Where  the  assignee  of  a  contract 
assumes  the  obligations  of  his  assignor,  he  does  not  become  a  party  thereto  so 
that  he  may  be  sued  at  law  on  the  contract,  nor  will  the  doctrine  of  subrogation 
apply  in  such  an  action.®^ 

It  is  sufficient  to  allege  that  a  contract  was  "dul}^'  assigned.**  Consideration 
may  be  generally  alleged.*"  An  averment  before  a  justice  that  a  claim  for  serv- 
ices was  assigned  to  plaintiff  is  a  sufficient  averment  that  the  assignment  was  of  an 
antecedent  debt.*®  Failure  of  the  declaration  to  state  that  an  assignment  is  in 
writing  must  be  taken  advantage  of  by  demurrer,  and  objection  cannot  be  made 


72.  So  held  where  all  moneys  were  as- 
signed, "e'xcept  such  sums  as  may  be  due 
or  owing  to  other  material  men,  sub-con- 
tractors, or  laborers,"  but  no  method  was 
specified  by  which  the  amount  to  be  re- 
ceived by  the  assig'nee  was  to  be  determined, 
nor  express  authority  given  him  to  collect 
the  moneys  assigned  him — Mueller  v.  North- 
western University,  195  111.  236.  Knowledge 
of  the  owners  of  such  an  assignment  does 
not  render  them  liable  to  the  assignee  in 
case  the  contractor  converts  money  received 
to  his  own  use — Mueller  v.  Northwestern 
University,  195  111.  236.  In  case  a  building 
contract  provides  that  it  shall  not  be  as- 
signed without  consent  of  the  owner,  fail- 
ure of  the  owners  to  investigate  a  notice 
of  assignment  does  not  prevent  them  from 
setting  up  payment  as  against  the  assignee 
where  but  slight  information  would  have 
been  gained  by  investigation  after  notice — 
Mueller  v  .Northwestern  University,  195  111. 
236. 

73.  So  held  where  after  an  allowance  to 
trustees  for  counsel  fees  they  attempted  to 
retain  the  amount  as  against  the  counsel's 
assignee  on  the  ground  that  there  had  been 
an  agreement  that  the  assignor  was  not  to 
receive  a  fee  by  permission  of  the  other  at- 
torneys, though  there  had  been  a  refusal  by 
the  court  to  allow  any  fee  to  the  assignor — 
Stone  v.  Hart,  23  Ky.  Law  Rep.  1777. 

74.  Acceptance  is  not  shown  by  letters 
from  the  assignee  to  the  employe  request- 
ing him  to  report  and  adjust  a  question  of 
salarv,  salary  being  specified  in  the  original 
contract — Griffin  v.  Brooklyn  Ball  Club  (N. 
y.)    68  App.   Div.   566. 

75.  Examine  Sherman  v.  Spalding  (Mich.) 
9  Det.  Leg.  N.  617.  93  N.  W.  613. 


76.  DIckerson  v.  Spokane,  26  "Wash  ?92, 
66  Pac.  381. 

77.  Notwithstanding  a  statutory  require- 
ment that  actions  must  be  instituted  by  the 
real  party  in  interest — Roth  v.  Continental 
V^'ire  Co.,  94  Mo.  App.  236.  Assignee  of  a 
cause  of  action  arising  from  a  breach  of  an 
agreement  to  discontinue  another  suit  may 
maintain  an  action  though  there  is  no  con- 
sideration— Rosenthal  v.  Rudnick  (N.  Y.)  65 
App.    Div.    519. 

78.  Assignments  of  an  itemized  verified 
account  and  oral  agreements  to  pay  the  full 
amount  when  collected  to  the  assignor — 
Stewart  v.  Price,   64  Kan.  191,   67  Pac.  553. 

79.  As  where  a  claim  if  collected  was  to 
be  applied  on  a  board  bill  of  the  assignor 
— Forsyth  v.  Ryan   (Colo.  App.)   68  Pac.  1055. 

80.  St.  1897,  c.  402,  §  1;  Gilman  v.  Amer- 
ican Producers'  Controlling  Co.,  180  Mass. 
319;   Peters  v.   Same,   Id. 

81.  Wood  v.  Carter  (Neb.)   93  N.  W.  158. 

82.  Brownell  Imp.  Co,  v.  Crltchfleld,  197 
111.  61. 

83.  Goodyear  Shoe  Mach.  Co.  v.  Dancel 
(C.    C.   A.)    119    Fed.    692. 

84.  Buffalo  Tin  Can  Co.  v.  E.  W.  Bliss  Co., 
118  Fed.  106. 

85.  It  is  sufficient  to  allege  that  an  order 
against  the  city  was  in  payment  of  labor 
performed  for  a  contractor  on  public  work — 
Dickerson  v.  Spokane,  26  Wash.  292,  66  Pac. 
381.  Where  a  written  assignment  states  that 
it  is  for  a  valuable  consideration,  it  cannot 
be  contended  that  the  actual  consideration 
was  not  specifically  set  forth,  in  an  excep- 
tion of  no  cause  of  action — Viguerie  v.  Hall. 
107   La.    767. 

86.  Farnam    v.    Doyle,    128    Mich.    696. 


ASSIGNMENTS    FOR   CREDITORS. 


227 


after  the  written  assignment  has  been  admitted  without  objection.^''  It  cannot 
be  shown  that  an  assignment  is  colorable  unless  such  fact  is  pleaded.*®  The  capacity 
of  the  assignor  may  be  investigated.®^  An  allegation  of  assignment  by  a  company  la 
not  supported  by  an  assignment  executed  by  an  individual.®"  A  question  as  to  the 
existence  of  an  assignment  and  the  assent  of  a  controlling  party  thereto  is  for 
the  jm-y.®^ 

ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS. 


§  1. 


Nature  in  General. 

Statutory    ProvisioiLS   and   Conflict    of 


La^vs. 

§  3. 
§  4. 


Riglit  to  Make. 

Piling,  Recording,  Etc.;  Qualifying  of 
Assignee,  Removals  and  Substitutions. 
§  5.     Meaning  and  Effect  in  General. 
§  6.     Legality    and    Equitableness. — Condi- 
tions; Reservations;  Preferences. 

§  7.     Property  Passing  and   Rights  of  A»- 
slgrnee. 


§  S.     Collection  of  Assets  and  Redaction  to 
Money. 

§  9.     Administration   of  the  Trust  In   Gen- 
eral. 

Debts  and  Liabilities. 

Presentment      and      AlloTrance      of 


§  10. 

§     11. 
Claims. 

§  12. 

§  13. 

§    14. 
charge, 


Classes  and  Priorities  of  Debts. 
Satisfaction  and  Discharge  of  Debts. 
Accounting,      Settlement      and     Dis- 
or  Failure  of  Trust. 


§  1.  Nature  of  transaction  in  general. — A  transfer  of  property  direct  to  a 
creditor  as  collateral  security  is  not  a  general  assignment/  nor  is  a  conveyance  by 
a  testamentary  trustee  of  his  interest  in  the  trust  estate,  and  a  reconveyance  to 
him  of  the  same  estate,-  nor  an  assignment  of  particular  choses  for  the  benefit  of 
particular  creditors  in  the  absence  of  such  intentions.* 

§  2.  Statutory  provisions  and  conflict  of  laws. — Under  the  rule  of  comity  as 
to  real  estate/  the  laws  of  the  state  of  the  making  of  a  general  assignment  govern 
its  validity/  or  the  assignee's  title/  and  it  will  be  enforced  as  against  the  prop- 
erty in  a  foreign  state  if  the  creditors  residing  therein  are  not  prejudiced  there- 
by/ or  public  policy  thereof  is  not  transgressed.* 

§  3.  Eight  to  malce  a  general  assignment. — An  ofl&cer  of  a  corporation  can 
only  make  an  assignment  of  the  corporate  assets  with  the  concurrence  of  the  board 
of  directors.® 

§  4.  Filing,  recording,  or  registering;  qualifying  of  assignee,  removals,  and 
substitution. — In  some  of  the  states  it  is  required  by  statute,  to  pass  title  of  non- 
resident assignors,  that  the  assignment  be  recorded  in  the  county  of  the  situs 
of  the  property  or  debt.^" 

The  trust  does  not  fail  because  the  assignee  fails  to  qualify  as  required  by 
statute,^^   or  because  of  incapacity  of  and  maladministration  of  the  assignee,*' 


87.  Phipps  V.  Bacon   (Mass.)    66  N.  E.   414. 

88.  The  execution  of  the  assignment  was 
admitted — Lesh  v.  Meyer,  63  Kan.  524,  66  Pac. 
245. 

89.  In  an  action  on  an  assigned  claim 
which  originally  stood  in  the  name  of  the 
assignor  in  trust,  it  is  proper  to  inquire 
whether  the  assignor  held  in  trust  for  some 
one  else  as  bearing  on  the  validity  of  the 
assignment — Chambers  v.  Webster  (N.  T.) 
6»   App.  Div.   546. 

90.  Kibler    v.    Brown,    114    Fed.    1014. 

91.  Liberty  "Wall  Paper  Co.  v.  Stoner  Wall 
Paper    Mfg.    Co.,    170   N.    T.    582. 

1.  Transfer  to  the  receiver  of  the  cred- 
itor— McCartney  v.  Earle  (C.  C.  A.)  115  Fed. 
462. 

2.  Within  Act  1843 — In  re  Hart's  Estate, 
202  Pa.  503;  Appeal  of  Philadelphia  Trust, 
Safe  Deposit  &  Ins.   Co.,  Id. 

3.  Assignment  of  an  insurance  policy — 
Brookshier  v.  Chillicothe  Ins.  Co.,  91  Mo. 
App.    599. 


4.  Memphis  Sav.  Bank  v.  Houchens  (C. 
C.   A.)    115    Fed.   96. 

5.  Memphis  Sav.  Bank  v.  Houchens  (C 
C.  A.)    115   Fed.   96. 

e.  Watson  v.  Bonflla  (C.  C.  A.)  116  Fed. 
157. 

7.  Memphis  Sav.  Bank  v.  Houchens  (C. 
C.   A.)    115   Fed.   96. 

8.  Bloomingdale  v.  Well,  29  Wash.  611; 
Bloomlngdale  v.  Security  Safe  Deposit  & 
Trust  Co.,  Id, 

9.  Lesher  v.  Friedman,   99  III.  App.   42. 

10.  Situs  of  debt  due  by  a  domestic  cor- 
poration authorized  to  transact  business  in 
the  state  of  the  nonresident  assignor  held 
to  be  in  the  foreign  state,  and  that  the  as- 
signment need  not  be  recorded  in  this  state 
— De  Turck  v.  Woelfel,  19  Pa.  Super.  Ct. 
265,    270. 

11.  H.  B.  Claflln  Co.  v.  Middlesex  Bank- 
ing Co.,  113  Fed.  958. 

12.  Long  V.  Campbell,  133  Ala.  363. 


228 


ASSIGNMENTS    FOR   CREDITORS. 


but  a  court  of  equity  will  execute  the  trust^^  by  removing  the  assignee**  and  ap- 
pointing another  in  his  place.^^  A  substituted  assignee  is  precluded  by  acts  of 
his  predecessor.^* 

§  5.  Meaning  and  ejfect  in  general. — A  deed  of  general  assignment  will  op- 
erate to  relinquish  all  rights  of  the  assignor  in  his  assets.^^ 

§  6.  Legality  and  equitahleness. — A  deed  invalid  in  its  inception  cannot  b? 
validated  by  a  subsequent  deed,^®  and,  if  valid,  it  cannot  be  invalidated  by  any 
subsequent  acts  of  the  creditors/®  assignor  or  assignee/"  or  by  erroneous  order? 
of  court.^^  By  participating  in  or  accepting  benefits  from  the  estate,  creditor? 
will  be  estopped  to  question  the  validity  of  the  assignment.^^ 

Conditions. — An  undisclosed  condition  releasing  the  assignor  from  claims  au- 
tliorizes  a  rescission  by  an  assenting  creditor.^^ 

Reservation  of  property. — While  property  may  remain  in  the  hands  of  the 
assignor  on  assignment,^*  yet,  if  the  deed  of  assignment  on  its  face  conveys  ali 
the  assignor's  property  and  he  retains  undisclosed  property,  the  assignment  i? 
void  :-^  but  the  reservation  of  a  homestead"®  or  an  unmatured  claim  may  be  vilid.^' 

Preferences. — Preferring  certain  creditors  by  omitting  other  creditors  render? 
the  assignment  void,-*  provided  there  was  an  intent  to  prefer  such  creditors/'' 
but  assenting  creditors  will  be  estopped  to  claim  that  the  assignment  is  a  general 
one.^°  In  the  absence  of  such  an  assent  thereto  by  all  the  creditors,  it  may  be 
declared  a  general  assignment  for  the  benefit  of  them  all.'*  This  may  be  done 
on  action  brought  against  the  assignee  in  his  individual  capacity.'^  Such  a  judg- 
ment will  relate  back  to  the  original  deed,'^  and  is  admissible  in  evidence  in  actioi 
against  the  assignee  to  recover  the  assets.'*  A  nonassenting  creditor  may  reach 
the  property,  in  the  hands  of  a  trustee  under  deed  to  prefer  certain  creditors,  by 
garnishment.'^  A  conveyance  of  property  on  the  day  of  the  execution  of  the 
assignment  does  not  constitute  a  preference.'® 

§  7.  Property  passing  to  and  the  rights  of  the  assignee  therein. — All  of  the 
debtor's  property,'^  except  that  which  equitably  belongs  to  creditors'^  and  that 


13.  H.  B.  Claflin  Co.  v.  Middlesex  Bank- 
ing Co.,  113  Fed.   958. 

14.  Long  V.   Campbell,  133  Ala.   353. 

15.  In  Ne-w  York  the  county  court  has 
Jurisdiction — Matter  of  Sheldon  (N.  Y.)  72 
App.    Div.    625. 

16.  In  re  Plankinton  Bank,  114  Wis.  582; 
National  Bank  of  Republic  v.  Herman,  Id.; 
Provident  L.  &  T.  Co.  v.  Fidelity  Co..  203 
Pa.  82.  wherein  assets  were  abandoned  by 
predecessor. 

17.  And  he  can  do  nothing  to  invalidate 
It — Taylor  v.  Seiter,  100  111.  App.  643. 

18.  Rainwater-Bradford  Hat  Co.  v.  Mc- 
Brlde  (C.  C.  A.)  117  Fed.  597;  H.  B.  Claflin 
Co.  V.  Harrison  (Fla.)   31  So.  818. 

19.  The  subsequent  acts  of  the  creditors 
or  the  assignee  cannot  be  imputed  to  the  as- 
signors.— Taylor  v.   Seiter,    100   111.  App.    643. 

20.  Long  v.  Campbell,   133  Ala.   353. 

21.  Taylor    v.    Seiter,    100    111.    App.    643. 

22.  Memphis  Sav.  Bank  v.  Houchens  (C. 
C.  A.)  115  Fed.  96;  Taylor  v.  Seiter,  100  111. 
App.  643;  Kaufman  v.  Simon,  80  Miss.  189. 

23.  Graves  v.  Morgan,  182  Mass.  161.  And 
a  suit  by  the  creditors  to  enforce  claims  Is 
a  sufficient  rescission — Graves  v.  Morgan, 
182  Mass.  161.  i 

24.  Owens  V.  Taylor,   23   Ohio  Cir.   Ct.   R. ' 
612. 

35.  Owens  v.  Taylor,  23  Ohio  Cir.  Ct  R. 
612:  H.  B.  Claflin  Co.  v.  Harrison  (Fla.)  31 
So.  818. 


26.  Long   V.    Campbell,    133    Ala.    353. 

27.  Claim  for  compensation  for  personal 
services  to  be  performed — Rainwater-Brad- 
ford Hat  Co.  V.  McBride  (C.  C.  A.)  117 
Fed.    597. 

28.  H.  B.  Claflin  Co.  v.  Harrison  (Fla.) 
31  So.  818.  Contra  in  Indian  Territory — 
Robinson   v.   Belt,    187   U.    S.    41. 

If  an  assignment  contains  no  preferences. 
It  is  not  necessary  to  file  the  schedule  re- 
quired by  Code  1892,  §  124 — Kaufman  v.  Si- 
mon,  80  Miss.   189. 

29.  Lenhardt  v.  Ponder,  64  S.  C.  354;  Men- 
gert  V.  Brinkerhoff  (Ohio)  66  N.  E.  530.  Rev. 
St.  §  6343,  amended  April  26,  1898 — Owens  v. 
Taylor.  23  Ohio  Cir.  Ct.  R.  612. 

30  Mengert  v.  Brinkerhoff  (Ohio)  66  N. 
E.   630. 

31.  Mengert  v.  Brinkerhoff  (Ohio)  66  N. 
E.   530. 

32.  Mengert  v.  Brinkerhoff  (Ohio)  66  N. 
E.   530. 

33.  Mengert  v.  Brinkerhoff  (Ohio)  66  N. 
E.   630. 

34.  Mengert  v.  Brinkerhoff  (Ohio)  66  N. 
E.   530. 

35.  Hungerford  v.  Greengard,  95  Mo.  App. 
653. 

36.  Taylor  v.    Seiter,   199   111.    555. 

37.  Cornell  v.  Suiter,  23  Ohio  Cir.  Ct.  R. 
384.  The  county  court  has  jurisdiction  there- 
over— Taylor   v.    Seiter,    100   111.   App.    643. 

38.  Ross  V.  Sayles,  104  111.  App.  19. 


ASSIGNMENTS    FOR   CREDITORS. 


229 


which  was  subsequently  acquired  by  the  assig-nor,  passes  to  the  assignee  ;^^  but  if 
the  deed  conveys  specific  property,  no  other  property  passes.*"  The  law  of  the 
state  of  the  making  of  an  assignment  governs  the  title  of  the  assignee.*^  He  takes 
subject  to  all  existing  equities.*^ 

Under  the  rights .  and  interests  passing  may  be  included  an  interest  as  dis- 
tributee in  a  decedent's  estate,*^  a  life  estate/*  a  contingent  remainder/^  property 
pledged  to  the  assignor  as  collateral  security,*^  money  earned  under  a  contract, 
though  not  due  at  the  time  of  the  making  of  the  assignment,*''  and  a  bank  de- 
posit, though  the  bank  held  unmatured  notes  against  the  assignor.*^ 

Property  which  has  no  value  as  an  asset  may  be  properly  excluded  from  the 
appraisement  by  the  assignee;*^  and  if  the  assignee  fails  to  include  property 
in  his  inventory^  or  to  assert  any  claim  of  ownership  or  right  thereto,  it  will  con- 
stitute an  abandonment  thereof  as  an  asset  of  the  estate.^"  Where  the  assignee 
had  abandoned  a  portion  of  the  assets  of  the  estate,  his  successor  in  office  could  not 
claim  the  same  as  against  an  intervening  bona  fide  purchaser.^^ 

Property  transferred  or  conveyed  by  assignor. — Wliile  the  assignor  may  in  good 
faith,  before  an  intent  to  make  an  assignment  for  the  benefit  of  creditors,  transfer 
his  property  or  give  liens  thereon,^^  yet,  if  made  after  a  contemplated  assign- 
ment, the  property  attempted  to  be  transferred  will  be  included  in  the  assign- 
ment,^^  provided  there  is  an  intent  to  prefer "  the  creditor^*  and  the  assignor  is 
insolvent,  of  which  the  grantee  had  knowledge.^^  A  conveyance  by  the  assignor, 
recorded  on  the  same  day,  though  executed  some  time  before  the  assignment  was 
recorded,  will  not  except  the  property  from  the  assignment.^®  Chattel  mortgages 
void  as  to  the  mortgagor's  creditors  are  so  as  to  his  assignee.^^  Since  it  is  the 
duty  of  the  assignee  to  sue  to  set  aside  fraudulent  transfers  by  the  assignor,^* 


39.  Rainwater-Bradford  Sat  Co.  V.  Mc- 
Bride    (C.    C.   A.)    117   Fed.    597. 

40.  Owens  v.  Taylor,  23  Ohio  Cir.  Ct.  R. 
612, 

41.  Watson  V.  Bonfils  (C.  C.  A.)  116  Fed. 
157. 

42.  Storts  V.  Mills,   93  Mo.  App.  201. 

43.  Though  the  administrator  had  not 
reduced  the  entire  estate  to  possession — 
Gatewood  v.  Gatewood's  Adm'x,  24  Ky.  Law 
Rep.    931,    70    S.   W.    284. 

44.  Cunningham  v.  Estill,  24  Ky.  Law 
Rep.  559,  68  S.  W.  1081. 

45.  "Whether  the  parties  to  the  deed  be- 
lieved it  so  passed  or  not — McAllister  v. 
Ohio  Valley  Banking  &  Trust  Co.,  24  Ky. 
Law   Rep.   1307,   71    S.   W.   509. 

46.  Cornell  v.  Suiter,  23  Ohio  Cir.  Ct.  R. 
384. 

47.  A  b  Iding  contract  provided  that,  in 
case  the  owner  was  compelled  to  complete 
the  building,  the  cost  thereof  should  be  off- 
set against  whatever  was  due  the  contract- 
or. Held,  that  the  money  so  due  for  the 
surplus  passes  to  the  assignee  of  the  con- 
tractor— New  Jersey  Steel  &  Iron  Co.  v. 
Robinson    (N.   Y.)    74   App.    Dlv.    481. 

48.  Pearsall  v.  Nassau  Nat.  Bank  (N.  T.) 
74    App.    Div.    89. 

49.  An  endowment  insurance  policy  due 
in  eight  years,  and,  in  case  of  death,  paya- 
ble to  others  and  creditors  of  the  assignor, 
held  a  valueless  asset — Provident  L.  &  T.  Co. 
V.   Fidelity  Ins.    Co.,    203   Pa.   82. 

50.  Failure  to  exercise  rights  over  an 
endowment  insurance  policy — Provident  L. 
&  T.  Co.  V.  Fidelity  Ins.  Co.,  203  Pa.  82. 

51.  Provident  L.  &  T.  Co.  v.  Fidelity  Ins. 
Co.,  203  Pa.  82. 


J3.  International  Trust  Co.  v.  First  Nat. 
Bank,  101  111.  App.  548.  A  partial  transfer 
of  money  earned  under  a  building  contract 
which  had  been,  under  the  terms  of  the  con- 
tract, withheld  by  the  owner  of  the  build- 
ing until  the  completion  thereof  as  security, 
is  valid  as  against  the  assignee  for  the  ben- 
efit of  all  the  creditors  of  the  contractor — 
Ludowici  Roofing  Tile  Co.  v.  Pennsylvania 
Inst,   for  Instruction   of  Blind,   116    Fed.    661. 

53.  International  Trust  Co.  v.  First  Nat. 
Bank,  101  111.  App.  548;  Rev.  St.  §  6343 — Hunt 
V.  Bode,  66  Ohio  St.  255;  Cooper  v.  Nolan, 
138  Cal.  248. 

54.  The  burden  of  proving  it  is  on  the 
person  attacking  the  transfer — International 
Trust  Co.  v.  First  Nat.  Bank,  101  111.  App.  548. 

55.  Lenhardt  v.  Ponder,  64  S.  C.  354. 

56.  The  deed  being  given  in  payment  of 
corporate  stock,  the  assignor  being  presi- 
dent thereof,  and  retaining  possession  of 
the  deed  as  such  officer — Taylor  v.  Seiter, 
199  111.   555. 

57.  Watson  v.  Rowley,  63  N.  J.  Eq.  195. 
If  unrecorded,  is  void  as  to  th*e  assignee — 
Clark  v.  Baker  (Colo.)  69  Pac.  506;  or  if 
recorded  after  the  assignment — In  re  H.  G. 
Andrae,  117  Fed.  561.  If  a  holder  fails  to 
make  affidavit  as  required  by  Laws  1899.  c. 
54,  §  15,  It  is  void  as  to  the  mortgagor's 
assignee — Watson  v.  Rowley,  63  N.  J.  Eq. 
195. 

58.  Cornell  v.  Suiter.  23  Ohio  Cir.  Ct.  R. 
384.  Sufficiency  of  complaint  in  action  by 
assignee  to  set  aside  fraudulent  conveyance 
bv  the  assignor — Cooper  v.  Nolan,  138  Cal. 
248. 


230 


ASSIGNMENTS    FOR   CREDITORS. 


creditors  may  sue  only  in  ease  the  assignee  refuses  to  do  so."  In  Ohio,  such  a 
suit  should  be  in  a  court  of  insolvency.®"  At  common  law,  however,  the  right 
to  avoid  such  transfers  belongs  to  the  creditors,  and  not  to  the  assignee.®^  Convey- 
ances or  transfers  by  insolvent,  which  are  fraudulent  as  to  creditors,  will  be  treated 
elsewhere.*'^ 

§  8.  Collection  of  assets  and  reduction  to  money. — In  actions  by  assignee  to 
collect  assets,  proof  of  the  original  assignment  as  recorded  and  the  assignee's  bond 
and  schedule  is  sufficient  evidence,  in  the  absence  of  specific  objections,  as  to  his 
authorit}\"^^  The  right  of  set-ofE  exists  in  case  of  mutual  indebtedness  at  the  time 
of  assignment,®*  but  unmatured  claims,®"^  or  claims  arising  subsequent  to  the  as- 
signment, cannot  be  set  off.®® 

Sale  of  assets  hy  assignee. — The  assignee  may  reduce  property  to  money  by  per- 
mitting an  execution  against  the  assignor  to  be  levied  thereon  and  sold  according 
to  law.®^     The  bank  books  of  an  assignor  banker  should  not  be  sold.*^ 

The  assignee  cannot  purchase  at  his  own  sale.®®  The  right  of  an  assignee  to  sue 
in  his  own  name  does  not  pass  by  purchase  of  a  chose  in  action  from  the  assignee,^'' 
but  the  purchaser  must  proceed  under  the  name  of  the  assignor."^  This  would 
not  be  true  in  states  which  allow  the  real  party  in  interest  to  sue  in  his  own  name."- 

Validity  and  setting  aside  sale. — A  private  sale  may  be  approved  by  the 
court,"^  which  may  be  done  without  notice  to  the  creditors,^*  but,  before  the  court 
vnll  approve  it,  it  must  appear  to  have  been  beneficial  to  the  creditors.'^'  If  the 
consideration  was  grossly  inadequate,  the  sale  may  be  avoided;'®  but  that  the  con- 
sideration was  for  a  sum  less  than  the  appraised  value  of  the  property  will  not 
necessarily  invalidate  the  sale,"  nor  will  the  fact  that  the  purchase  money  was  not 
paid  until  after  the  time  fixed  by  the  deed  for  the  expiration  of  the  trust,"  nor  will 
any  irregularity  in  the  appraisement  by  the  assignee.'^*  Jurisdiction  to  set  aside 
a  sale  by  an  assignee  may  be  obtained  by  a  summary  proceeding,*"  in  the  county 
court  in  New  York.*^ 


59.  Rev.  St.  §  6344 — Cornell  v.  Suiter,  23 
Ohio  Cir.  Ct.  R.  384. 

60.  Rev.  St.  §  6344.  A  judgment  of  that 
court  is  conclusive  on  the  right  of  credit- 
ors to  sue  in  the  common  pleas — Cornell  v. 
Suiter,  23  Ohio  Cir.  Ct.  R.  384. 

61.  Ross  v.  Sayler,  104  111.  App.  19.  So, 
also,  under  the  statutes  of  Missouri — Watson 
V.   Bonflls,   116  Fed.  157. 

62.  Fraudulent   Conveyances. 

63.  Hitchings  v.   Kayser,   171  N.  Y.    636. 

64.  Storts  v.  Mills,  93  Mo.  App.  201.  A 
deposit  in  the  assignor  bank  cannot  be  set 
off  against  a  surplus  realized  on  collaterals 
in  tlie  hands  of  the  depositor — Storts  v. 
Mills,   93   Mo.  App.   201. 

65.  Pearsall  v.  Nassau  Nat.  Bank  (N.  T.) 
74   App.   Div.    89. 

66.  Storts  V.  Mills,  93  Mo.  App.  201. 

67.  Mengert  v.  Brinkerhoff  (Ohio)  66  N. 
E.    530. 

68.  Andrews  v.  Wilson's  Assignee,  24  Ky. 
Law  Rep.  1497,  71  S.  W.  890. 

69.  Where  the  son  and  daughter  of  the 
assignee  purchase  at  his  sale,  the  father 
loaning  a  part  of  the  money,  and  part  of  it 
being  in  his  possession,  he  purchasing  In 
behalf  of  the  son,  it  also  appearing  that 
they  realized  a  large  sum  in  excess  of  the 
purchase  price  shortly  after,  the  purchase  is 
properly  set  aside — Matter  of  Sheldon  (N.  T.) 
72  App.  Div.  625. 

70.  Congress  Const.  Co.  v.  Farson  &  Llb- 
by  Co.,  101  111.  App.  279. 


71.  Congress  Const.  Co.  v.  Farson  &  Llb- 
by  Co..  101  111.  App.   279. 

72.  See  Parties. 

73.  Shirk  V.  Trundle,  96  Md.  177. 

74.  Conclusiveness  of  confirmation  of  as- 
signee's sale  In  subsequent  action  to  avoid 
the  sale — Peele  v.  Ohio  &  I.  Oil  Co.,  158  Ind. 
374. 

75.  Shirk  v.  Trundle,  96  Md.  177.  Evi- 
dence held  sufficient  to  show  that  a  private 
sale  was  beneficial  to  creditors — Peele  v. 
Ohio  &  I.  Oil  Co.,  158  Ind.  374. 

76.  Evidence  held  insufficient  to  show  that 
sale  by  the  assignee  was  properly  adver- 
tised, and  that  the  consideration  was  not 
grossly  Inadequate — Shirk  v.  Trundle,  96  Md. 
177.  Where  the  assignor,  by  his  conduct 
at  the  sale,  was  Instrumental  In  preventing 
the  property  from  bringingr  a  better  price, 
he  ■vC^lll  be  estopped  from  alleging  inade- 
quacy of  consideration  as  ground  for  avoid- 
ance— Helena  Coal  Co.  v.  Sibley.  132  Ala.  651. 

77.  Burns'  Rev.  St.  §  744,  "providing  that 
no  property  shall  be  sold  on  execution  or 
order  of  court  for  less  than  two-thirds  of 
the  appraised  cash  value,"  has  no  applica- 
tion to  sales  by  assignees,  the  latter  being 
governed  by  Act  ISSl,  p.  74,  §  10 — Peele  v. 
Ohio   &   I.   Oil  Co.,   158    Ind.    374. 

78.  Shirk  v.  Trundle,  96  Md.  177. 

79.  Peele  v.  Ohio  &  I.  Oil  Co.,  158  Ind.  374. 

80.  Matter  of  Sheldon.  173  N.  Y.  2S7.  The 
administration  of  an  estate  by  an  assignee 
for   benefit   of   creditors   being  a   proceeding 


ASSIGNMENTS    FOR    CREDITORS. 


231 


§  9.  Administration  of  the  trust  in  general. — If  the  creditors  consent  to  the 
eontinnance  of  the  debtor's  business  by  the  assignee,  they  will  be  estopped  to  deny 
his  authority.^^ 

Other  titles  wherein  administration  of  trust  is  involved. — The  rules  respecting 
collection  of  assets,  administration,  and  settlement  are  somewhat  like  those  applied 
to  personal  representatives,  trustees,  and  like  functionaries ;  hence  the  corresponding 
parts  of  titles  given  below  should  be  examined  for  authorities  analogous.*' 

§  10.  Debts  and  liahilities  of  the  estate. — A  claim  for  damages  for  breach 
of  contract  by  the  assignor  may  be  proven  against  the  estate.**  A  debt  created  sub- 
sequent to  the  assignment  cannot  be,'^^  but  only  against  the  surplus  arising  after  a 
settlement.*® 

Claim  of  assignee  for  compensation  and  allowances. — Commissions  cannot 
be  allowed  an  assignee  where  his  assignor  was  adjudged  bankrupt  within  four 
months  after  making  the  assignment,*^  but  he  may  be  allowed  for  actual  and 
necessary  expenses  incurred  in  the  preservation  of  the  estate.**  The  amount  of 
commission  allowed  assignees  is  the  subject  of  various  statutory  regulations,  as 
shown  in  the  footnotes,*^  and  attorney's  fees  are  within  the  court's  discretion.®** 
Orders  of  the  court  fixing  the  amount  of  compensation  for  the  assignee  and  his 
attorney  may  be  reviewed  on  the  coming  in  of  the  auditor's  or  referee's  report  of  his 
account.®^ 

§  11.  Presentment  and  alloivance  of  claims. — In  the  absence  of  objections 
made  within  the  statutory  time,  the  presented  claims  will  stand  as  allowed,^-  but 
they  may  thereafter  be  interposed  by  application  to  the  court  on  notice  to  the 
creditor.®'  The  successor  assignee  cannot  object  to  the  list  of  creditors  filed  by  his 
predecessor,  though  the  time  for  filing  objections  thereto  has  not  expired.'*  If  a 
claim  is  unlisted  or  in  excess  of  the  listed  amount,  the  assignee  is  justified  in  reject- 
ing it,®^  and  a  creditor  may  be  estopped  to  assert  that  the  schedule  of  claims  was  not 
in  full  for  all  demands.®® 

§  12.  Classes  and  priorities  of  debts. — It  is  one  of  the  assignee's  duties  to 
have  the  right  to  liens  and  the  priority  thereof  determined  by  the  court.®''  Pri- 
ority should  be  given  one  who,  to  protect  himself,  overpaid  the  assignee,®*  and 
also  to  a  claim  put  into  judgment  before  ratification  of  the  assignment.®'     In 


in  court,  one  who  purchases  at  an  assignee's 
sale  thereby  makes  himself  a  party  to  such 
proceeding — Matter  of  Sheldon,  173  N.  T.  287. 
SI.  Matter  of  Sheldon  (N.  Y.)  72  App. 
Div.    625. 

82.  Quimby  v.  Uhl  (Mich.)  9  Detroit  Leg. 
N.    1.    89   N.   W.    722. 

83.  Bankruptcy,  Estates  of  Decedents,  Re- 
ceivers, Trusts. 

84.  Moore  v.  Thompson,  93  Mo.  App.  336; 
Laclede  Power  Co.  v.  Stlllwell  (Mo.  App.) 
71   S.  W.   380. 

85.  Buckler  v.  Trigg,  24  Ky.  Law  Rep. 
410,    68   S.   W.    637. 

86.  Buckler  v.  Trigg,  24  Ky.  Law  Rep. 
410,  68  S.  W.  637. 

87.  In  re  Mays,  114  Fed.  600. 

88.  In  re  Mays,  114  Fed.  600. 

89.  In  South  Dakota  the  assignee  may  be 
allowed  the  same  commissions  as  are  al- 
lowed to  executors  under  Comp.  Laws,  § 
5888— "Woodcock  v.  Reilly  (S.  D.)  92  N.  W. 
10.  The  same  under  Code,  c.  87,  §  17 — 
Beecher  v.  Foster,  51  W.  Va.  605.  Credit- 
ors held  estopped  to  object  to  an  allowance 
of  commissions  on  judgments  which  were  un- 
collectible— Woodcock  V.  RelUy  (S.  D.)  92 
N.  W.  10. 


90.  Amount  of  allowances  for  attorney's 
fees — National  Bank  of  Baltimore  v.  Du- 
laney,  96  Md.  159;  Marshall  v.  National  Bank 
of  Baltimore,  Id. 

91.  National  Bank  of  Baltimore  v.  Du- 
laney,  96  Md.  159;  Marshall  v.  National  Bank 
of  Baltimore,  Id. 

92.  In   re   Planklnton   Bank,   114  Wis.   582 
National  Bank  of  Republic  v.  Herman,  Id. 

93.  In   re  Planklnton  Bank,   114   Wis.   582 
National  Bank  of  Republic  v.  Herman,  Id. 

94.  In   re   Plankinton  Bank,    114   Wis.   582 
National  Bank  of  Republic  v.  Herman,   Id. 

95.  Sitter  V.  Karraker.  100  111.  App.  669. 

96.  As  where  the  wife  of  the  assignor 
joined  in  the  assignmefit  under  an  under- 
standing that  her  only  share  of  the  estate 
was  to  be  the  amount  of  her  claim  as  sched- 
uled— Gates  V.  Union  Trust  Co.  (Mich.)  9 
Detroit  Leg.   N.   81,   90  N.   W.   45. 

97.  Court  of  insolvency  in  Ohio — Cornell 
V.  Suiter,  23  Ohio  Cir.  Ct.  R.  384. 

98.  As  where  a  customer  of  the  assignor 
stock  brokers  paid  the  market  price  on  the 
day  of  redemption  of  stock  to  which  he  was 
entitled,  and  which  the  assignor  had  pledged 
as  collateral — Matter  of  Price,  171  N.  T. 
15;  Matter  of  Crocker,  Id. 


233  ASSISTANCE,  WRIT   OF. 

respect  to  property  situated  within  the  state,  the  rights  of  resident  creditors  are 
entitled  to  priority  over  nonresident  creditors  under  a  foreign  assignment.^ 

§  13.  Satisfaction  and  discharge  of  debts  and  claims. — The  rights  of  all  the 
creditors  to  dividends  will  be  determined  as  of  the  date  of  the  assignment.^  The 
presentment  of  a  claim  after  the  estate  had  been  exhausted  will  not  bar  an 
action  by  the  claimant  against  the  assignor  to  recover  a  personal  judgment.^ 
Creditors  may  be  estopped  to  question  the  validity  of  a  general  assignment  by 
recognizing  the  same  or  by  accepting  benefits  thereunder/  as  where  they  filed  their 
claims  and  received  dividends.^ 

§  14.  Accounting,  settlement  and  discharge,  or  failure  of  trust. — The  trust 
is  not  terminated  by  the  death  of  the  assignor/  or  by  the  discharge  of  the  assignee 
and  his  sureties  by  order  of  the  court/  but  in  such  case  a  receiver  may  be  ap- 
pointed to  take  charge  of  unadministered  assets.*  A  provision  directing  the  clos- 
ing of  the  estate  within  a  limited  time  is  directory  only,  and  does  not  terminate 
the  trust  at  the  expiration  of  the  time.®  It  may  be  terminated  by  the  consent 
of  the  assignor  and  the  majority  of  the  creditors,^"  and  it  is  terminated  as  to 
creditors  by  the  pa^Tnent  of  their  claims.^^  A  discharge  should  not  be  ordered  on 
the  day  that  the  account  is  entered,  and  is  void  in  Kentucky  if  so  made.^-  The 
termination  of  the  assignee's  powers  terminates  his  right  to  sue  in  his  ovra  name.^^ 
The  trust  is  not  destroyed  by  the  assignee's  failure  to  properly  qualify.^* 

A  decree  settling  the  assignee's  accounts  is  not  binding  on  the  wife  and 
children  of  the  assignor.^^  The  retention  after  order  of  surrender  of  the  sur- 
plus property  by  the  assignee  is  constructive  notice  to  subsequent  creditors  of 
a  present  title  in  the  assignee.^® 

ASSISTANCE,  WRIT  OF. 

Nature  and  grounds. — The  purpose  of  the  writ  is  to  render  effectual  decrees 
by  which  rights  have  been  fixed,  or  to  place  a  party  in  possession  of  property  by 


99.  It  appearing  that  the  only  purpose  of 
making-  the  assignment  was  the  defeat  of 
such  preference — Friedman  v.  Lesher,  198  111. 
21. 

1.  Bloomingdale  v.  Weil,  29  Wash.  611; 
Bloomingdale  v.  Security  Safe  Deposit  & 
Trust  Co.,   Id. 

2.  Matter  of  Hayes  (N.  Y.)  37  Misc.  Rep. 
264. 

3.  New  Albany  Mfg.  Co.  v.  Sulzer,  29 
Ind.    App.    89. 

4.  Where  the  creditors,  after  a  general 
assignment,  made  a  composition,  whereby 
they  were  to  receive  notes  secured  by  the 
trust  estate,  and  accepted  such  notes,  they 
are  estopped  to  question  the  validity  of  the 
assignment  or  the  title  of  the  assignee — 
Memphis  Sav.  Bank  v.  Houchens  (C.  C.  A.) 
115  Fed.   96. 

5.  Taylor  v.  Seiter,  100  111.  App.  643. 
"Where  the  creditor  had  participated  in  the 
assignment  by  accepting  a  distribution  there- 
under, and  consenting  to  a  sale,  he  will  be 
estopped  to  assert  invalidity  on  the  ground 
that  the  assignee  filed  no  petition,  no  sched- 
ule, and  gave  no  bond — Kaufman  v.  Simon, 
80  Miss.  189. 

6.  Andrews  v.  Wilson's  Assignee,  24  Ky. 
Law  Rep.   1497,   71   S.   W.   890. 

7.  Andrews  v.  Wilson's  Assignee,  24  Ky. 
Law   Rep.   1497,   71   S.  W.   890. 

8.  Andrews  v.  "unison's  Assignee,  24  Ky. 
Law   Rep.   1497,   71   S.  W.   S90. 


9.  Two  years — Shirk  v.  Trundle,  96  Md. 
177. 

10.  But  an  order  of  discontinuance  of 
the  proceedings,  made  before  the  expiration 
of  three  months,  is  void  under  St.  c.  10,  §§ 
10,  15,  and  the  creditors  whose  consent  is 
required,  are  those  who,  within  three 
months,  file  their  claims  under  said  statute — 
Manufacturers'  Paper  Co.  v.  Royal  Trust  Co., 
98   111.  App.   41. 

11.  After  payment  of  claims,  the  assign- 
or may  assume  possession  and  carry  on  the 
business  in  his  own  or  the  assignee's  name 
— Quimby  v.  Uhl  (Mich.)  9  Detroit  Leg.  N. 
1,    89   N.   W.    722. 

12.  St.  §  93,  provides  that  notice  of  appli- 
cation be  given,  and  at  the  second  regular 
term  thereafter  the  court  may  hear  the  mo- 
tion— Knoedler  v.  Teegarden,  24  Ky.  Law 
Rep.   1785,   72  S.  W.   268. 

13.  No  matter  how  his  powers  were  ter- 
minated— Congress  Const.  Co.  v.  Farson  & 
Libbey  Co.,   101   111.  App.   279. 

14.  See  ante,  §  4. 

15.  Cunningham  v.  Estill,  24  Ky.  Law  Rep. 
559,   68   S.   W.   1081. 

16.  A  trust  for  assignor's  family  was 
created  in  the  surplus  in  consideration  of  the 
wife's  releasing  dower.  It  was  not  record- 
ed, but  the  creditors  were  settled  with,  which 
facts  were  equivalent  to  notice  to  subsequent 
creditors — Cunningham  v.  Estill,  24  Ky.  Law 
Rep.    559,    68    S.   W.    1081. 


ASSOCIATIONS    AND    SOCIETIES. 


233 


order  of  court.^  The  writ  may  issue  to  place  the  purchaser  at  foreclosure  sale,* 
or  his  grantee,  in  possession;^  and  the  mortgagor  cannot  successfully  resist  a 
petition  for  such  a  writ  where  he  does  not  show  an  action,  pending  or  contemplated, 
to  obtain  relief  against  the  decree,*  nor  on  the  ground  that  the  sale  was  void 
under  an  agreement  between  the  parties  relied  on  in  a  motion  to  enjoin  the 
sale.'  It  may  also  issue  to  oust  a  lessee,  where  time  was  given  him  to  prevent 
forfeiture  of  his  lease  by  complying  with  its  conditions,  which  he  fails  to  do 
until  so  shortly  before  expiration  of  the  period  that  performance  is  impossible;® 
but  not  on  a  decree  cancelling  a  deed,''  nor  against  one  not  a  party  who  came 
into  possession  before  suit,  nor  against  a  stranger  who  is  a  tenant  of  one  of  the 
parties,^  nor  against  one,  entering  land  pendente  lite,  claiming  paramountly  to 
all  the  parties.^ 

Procedure. — An  alias  writ  should  not  be  granted  where  several  years  have 
elapsed  after  the  suit,  and  the  original  writ  was  returned  executed  before  applica- 
tion for  the  alias  writ,  especially  if  the  application  does  not  deny  that  defend- 
ant holds  as  tenant  of  the  party  applying  or  under  a  claim  of  right.^°  A  peti- 
tion for  issuance  is  unnecessary  to  compel  defendant  to  comply  with  orders  of 
the  court,  where  he  had  full  notice  of  the  claim  against  him  and  opportunity  to 
contest  it.^^ 

ASSOCIATIONS  AND  SOCIETIES. 

§  1.  Definition  and  nature.^ — A  "grange"  may  be  regarded  as  a  voluntary 
association.- 

§  2.  Internal  relations,  rights,  and  duties. — A  voluntary  association  is  not 
subject  to  judicial  control  except  for  the  protection  of  property  interests.^  Power 
of  expulsion  of  members  may  be  entrusted  to  a  board  of  directors.*  The  deci- 
sion of  an  association  with  regard  to  the  admission  or  expulsion  of  members  is 
not  reviewable  by  the  courts  unless  there  is  a  violation  of  good  faith  or  of  law.' 
A  member  expelled  against  the  laws  of  the  association  may  have  a  remedy  in 
equity  if  property  interests  are  involved.®  Before  a  remedy  in  the  courts  may 
be  invoked,  remedies  by  appeal  within  the  society  must  be  exhausted.''  Eules 
concerning  membership  do  not  in  general  confer  a  property  right,  hence  a  gen- 


1.  It  is  almost  unknown  in  Missouri — 
Sills   V.   Goodyear,    88    Mo.    App.    316. 

2.  Magruder  v.  Kittle  (Neb.)  89  N.  W. 
272;  Burns'  Rev.  St.  1901,  §§  249,  1062,  1096, 
construed;  the  change  to  the  Code  did  not 
destroy  the  right — Emerick  v.  Miller  (Ind.) 
64  N.   E.    28. 

3.  Emerick   v.    Miller    (Ind.)    64    N.    E.    28. 

4.  An  answer  alleging  a  meritorious  de- 
fense to  the  foreclosure,  which  was  pre- 
vented by  fraud  of  the  mortgagee,  and  that 
a  suit  to  set  aside  the  decree  was  dismissed 
for  failure  of  the  mortgagee  to  sign  in- 
terrogatories, is  insufficient — Emerick  v.  Mil- 
ler   (Ind.)    64   N.   E.    28. 

,■>.     Murchison   v.    Miller,    64    S.    C.    425. 

6.  Railroad  lease — the  supreme  court  ex- 
tended the  time,  and  the  writ  was  issued 
by  the  lower  court  five  days  before  expira- 
tion of  ttie  period— Pittsburg,  J.  E.  &  E. 
R.  Co.  y.  Altoona  &  B.  C.  R.  Co.,  203  Pa.  108. 

7.  Remedy  is  at  law — Clay  v.  Hammond, 
199    111.    370. 

8.  In  the  last  instance,  a  writ  of  restitu- 
tion will  be  as  effective — Sills  v.  Goodyear, 
S8  Mo.  App.   316. 

8.     A  claim  by   one  in  possession,   in   good 


faith,  under  a  void  tax  deed,  is  under  such 
an  independent  title — Merrill  v.  Wright 
(Neb.)   91  N.  W.  697. 

10.  Application  by  purchaser  at  foreclo- 
sure sale — Ex  parte  Forman,  130  Ala.  278. 

11.  Dorr   v.    Root,    104   111.   App.    417. 

1.  Incorporated  societies,  clubs,  etc.,  see 
Corporations. 

2.  Henry  v.  Simanton  (N.  J.  Ch.)  54  Atl. 
153. 

3.  Courts  will  not  interpose  between  the 
association  and  a  member  excep*  for  such  a 
purpose — Proelich  v.  Musicians'  Mut.  Ben. 
Ass'n,    93   Mo.   App.    383. 

4.  Brandenburger  v.  Jefferson-  Club  Ass'n, 
88  Mo.  App.  148;  State  v.  St.  Louis  Medical 
Soc,  91  Mo.  App.  76. 

5.  Being  quasi  judicial  in  their  charac- 
ter— Froelich  v.  Musicians'  Mut.  Ben.  Ass'n, 
93  Mo.  App.  383;  State  v.  St.  Louis  Medical 
Soc,  91  Mo.  App.  76. 

6.  Froelich  v.  Musicians'  Mut.  Ben.  Ass'n, 
93  Mo.  App.  383;  O'Brien  v.  Musical  M.  P. 
&   B.   Union    (N.    J.   Ch.)    54   Atl.    150. 

7.  No  property  right  being  involved — 
O'Brien  v.  Musical  M.  P.  &  B.  Union  (N.  J. 
Ch.)   54  Atl.  150. 


234 


ASSOCIATIONS    AND    SOCIETIES. 


eral  association  cannot  be  compelled  to  continue  association  with  a  local  one, 
no  property  right  being  involved;^  nor  do  rights  of  membership  conferred  on  a 
local  by  a  general  society.®  They  may  do  so  when  involving  pecuniary  benefits.^** 
Where  an  association  tribunal  has  power  to  determine  certain  matter  under  its 
rules,  the  members  are  bound  by  its  decision  to  the  extent  of  the  powers  conferred 
on  it." 

Funds  cannot  be  diverted  from  the  objects  and  purposes  of  the  association 
by  a  majority  against  the  will  of  the  minority.^^  Members  of  an  association  may 
sue  to  prevent  other  members  from  exercising  rights  concerning  the  association- 
property  or  affairs.^^  A  member  may  procure  a  renewal  of  a  lease  of  property 
occupied  by  the  association  without  rendering  the  property  subject  to  be  impressed 
with  a  trust  in  his  hands  or  to  be  regarded  as  obtained  by  him  as  agent  of  the 
association.^*  Eights  of  withdrawing  members  of  a  communistic  society  to  a  dis- 
tribution of  the  property  may  be  lost  by  lapse  of  time.^^  The  right  of  with- 
drawing members  of  a  community  to  compensation  will  be  presumed  to  be  sat- 
isfied after  lapse  of  a  long  time.^*  Members  of  an  association  who  attempt  to 
incorporate  will  not  be  regarded  as  having  withdrawn  and  forfeited  their  rights 
in  its  property."     The  burden  of  showing  a  withdrawal  is  on  those  asserting  it.^* 

A  by-law  not  proposed  in  writing  before  its  adoption  as  required  by  the  con- 
stitution is  not  binding  on  a  member."  By-laws  may  be  amended  so  as  to  affect 
the  rights  of  members  who  have  already  come  within  their  scope.-"  By-laws  of 
an  association  are  to  regulate  the  conduct  and  to  define  the  duties  of  the  members 
toward  the  association  and  to  each  other. -^  Where  by-laws  are  to  be  regarded 
as  a  contract,  the  parties  are  the  members  of  the  association  as  among  themselves, 
or  the  association  and  the  individual  members.^^  In  so  far  as  by-laws  do  not 
relate  to  purely  contract  relations  they  may  be  altered  by  the  association  without 
destrojang  vested  rights,  since  by  the  fundamental  contract  of  membership,  the 
member  pledges  his  assent  to  every  lawful  rule  adopted  by  the  majority  in  further- 
ance of  common  objects.-^  Eegulations  of  the  conduct  of  members  must  be  rea- 
sonable and  proper.'^*    By-laws  need   not  be  literally  construed.^'*     Where  it  is 


8.  O'Brien  v.  Musical  M.  P.  &  B.  Union 
(N.    J.    Ch.)    54    Atl.    150. 

9.  O'Brien  v.  Musical  M.  P.  &  B.  Union, 
(N.    J.    Ch.)    54    Atl.    150. 

10.  If  an  association's  by-laws  provide  for 
a  contribution  to  funeral  expenses  of  its 
members,  the  member  has  such  a  property 
Interest  as  will  entitle  a  court  to  interfere 
to  prevent  his  expulsion  by  unauthorized 
proceedings — Froelich  v.  Musicians'  Mut.  Ben. 
Ass'n,    93    Mo.   App.    383. 

11.  Bartlett  v.  Bartlett  &  Son  Co.  (Wis.) 
93  N.  W.   473. 

12.  Bachman  v.  Hoffman,  104  111.  App.  159. 

13.  The  rule  in  relation  to  partnerships 
does  not  apply — Boston  Base  Ball  Ass'n  v. 
Brooklyn  Base  Ball  Club,  37  Misc.  Rep. 
(N.   T.)    521. 

14.  Lumbard  v.  Grant,  35  Misc.  Rep.  (N. 
T.)    140. 

15.  Schwartz  v.  Duss,  187  U.  S.  8. 

16.  Schwartz   v.    Duss.    187    U.    S.    8. 

17.  As  where  under  St.  1895,  p.  25,  pro- 
viding- for  the  incorporation  of  co-operative 
associations,  certain  members  incorporate, 
adopt  the  association  name  and  use  its 
trade  marks  and  books,  and  members  refus- 
ing- to  join  the  corporaiion  treated  the  oth- 
ers as  having  withdrawn,  and  elected  suc- 
cessors— Strong  V.  Los  Nietos  &  R.  W.  Grow- 
ers' Ass'n,  137  Cal.  607,  70  Pac.  734. 


18.  Strong  v.  Los  Nietos  &  R.  W.  Growers' 
Ass'n,   137   Cal.   607,   70   Pac.    734. 

19.  Froelich  v.  Musicians'  Mut.  Ben.  Ass'n. 
93    Mo.    App.    383. 

20.  A  member  of  a  pilot's  association 
whose  license  had  been  revoked  for  disabil- 
ity and  who  was  receiving  half  pay  under 
a  by-law  providing  that  a  member  losing 
his  license  for  any  cause  other  than  intox- 
ication, should  receive  half  pay  until  rein- 
stated, is  bound  by  an  amendment  of  the  bv- 
laws  to  the  effect  that  members  losing  their 
license  through  not  being  capable  uf  follow- 
ing their  business,  should  receive  $50  per 
month — Marshall  v.  Pilots'  Ass'n,  IS  Pa. 
Super.  Ct.  644. 

21.  Marshall  v.  Pilots'  Ass'n,  18  Pa.  Super. 
Ct.    644. 

22.  Marshall  v.  Pilots'  Ass'n,  IS  Pa.  Super. 
Ct.    644. 

23.  Marshall  v.  Pilots'  Ass'n,  18  Pa.  Super. 
Ct.    644. 

24.  A  by-law  of  a  pilots'  association  is 
reasonable  which  provides  that  pilots  re- 
fusing to  go  on  boats  in  their  turn  shall  be 
considered  on  sick  leave  and  receive  pay 
accordingly — Marshall  v.  Virden,  19  Pa.  Su- 
per. Ct.  245. 

2r>.  As  where  a  by-law  of  a  pilots'  asso- 
ciation provides  for  the  contingency  of  a 
pilot   refusing  to   go   on   a   boat   in   his   turn. 


ASSOCIATIONS    AND    SOCIETIES. 


23'S 


provided  that  propositions  for  amendment  of  a  constitution  must  be  submitted 
in  writing  and  referred  to  a  special  committee  which  must  report  at  the  next 
annual  meeting,  action  need  not  be  taken  on  a  printed  report  of  a  committee 
for  revision  at  the  annual  meeting  next  following  its  circulation,  but  such  re- 
port may  be  acted  on  at  a  subsequent  meeting  where  it  does  not  appear  that  there 
have  been  intermediate  changes.-*  Eules  of  an  association  may  be  construed  by 
a  tribunal  established  by  it  if  they  reasonably  admit  of  two  constructions.  The 
jurisdiction  of  such  tribunal  is  limited  by  the  laws  of  the  association,  and  its 
decisions  are  not  open  to  judicial  control  except  as  regards  jurisdictional  error  and 
at  the  demand  of  a  person  whose  property  rights  are  injured.^^ 

§  3.  The  association  and  persons  not  members. — Persons  outside  the  associ- 
ation cannot  enjoin  the  association  from  the  enforcement  of  by-laws  operating 
directly  only  on  its  members.^^  An  agricultural  society  must  use  reasonable  care 
for  the  safety  of  persons  attending  its  exhibitions  at  its  invitation  and  paying  an 
admission  fee,  whether  they  are  inside  its  grounds  or  on  the  usual  approaches 
to  lhem.29 

An  injunction  may  be  had  to  prevent  the  violation  of  an  agreement  of  as- 
sociation.^" It  will  be  presumed  that  distant  relatives  of  deceased  members  of  a 
community  have  no  claims  which  they  may  assert  against  the  community.®^ 

§  4.  Actions  and  litigation. — Under  certain  statutes,  an  association  may  be 
regarded  as  a  quasi  corporation  for  the  purpose  of  service  of  process.'^  In  some 
states,  voluntary  unincorporated  associations  which  are  not  organized  to  hold 
property  or  carry  on  a  trade  or  business  cannot  sue  or  be  sued  as  associations.^' 
A  statute  may  allow  an  election  between  a  proceeding  against  the  association  as 
such  or  against  all  the  members  thereof.^*  Where  persons  are  sued  as  an  associ- 
ation, the  burden  is  on  plaintiff  to  establish  the  joint  liability  of  the  defendants, 
if  it  is  denied.^'  An  action  may  be  maintained  against  an  officer  of  an  associa- 
tion for  its  acts,  though  all  the  members  have  joined  therein.^*  The  right  is 
not  affected  by  joinder  of  certain  members  as  co-defendants.^^  Suits  against  un- 
incorporated voluntary  associations  as  such  may  be  authorized  by  statute.^* 


a  pilot  who  absents  himself  from  port  with- 
out leave  and  does  not  take  his  turn,  may 
be  regarded  as  refusingr  to  go  on  a  boat — 
Marshall   v.   Vlrden,    19   Pa.   Super.   Ct.    245. 

26.  Construing  art.  30  of  the  rules  and 
regulations  of  the  Union  Veterans'  Union — 
Goulding   v.    Standish,    182   Mass.    401. 

27.  Disciplinary  proceedings  by  regular 
constituted  tribunal  are  in  the  nature  of 
the  determination  of  a  quasi  judicial  body, 
In  effect  like  an  award  of  arbitrators — 
Bartlett  v.  Bartlett  &  Son  Co.  (Wis.)  93 
N.  W.  473. 

28.  As  where  an  association  of  cattle 
merchants  adopted  rules  prohibiting  mem- 
bers from  dealing  with  non-members — 
Downes  v.  Bennett,  63  Kan.  653,  66  Pac.  623, 
55  L.  R.  A.  560. 

29.  A  society  is  liable  in  case  a  bullet 
fired  in  a  shooting  gallery  conducted  within 
the  grounds,  misses  the  target,  goes  through 
the  fence  and  strikes  a  person  standing  on 
a  railroad  platform  outside  at  Its  invitation, 
the  association  having  let  space  for  the  con- 
duct of  the  gallery — Thornton  v.  Maine  State 
Agric.  Soc,  97  Me.  108. 

30.  Construing  Code  Civ.  Proc.  §  603, 
where  certain  ball  clubs,  members  of  a  vol- 
untary unincorporated  association,  sought 
to  prevent  the  violation  of  the  agreement  by 
other  clubs,  and  to  avoid  an  election  by  them 


of  a  certain  person  as  officer  of  the  league 
and  to  restrain  his  acting  as  such,  and  hold- 
ing such  an  action  not  one  to  determine  title 
to  office,  which  must  be  brought  by  the 
people  under  Code  Civ.  Proc.  §§  1948,  1984 — 
Boston  Base  Ball  Ass'n  v.  Brooklyn  Base 
Ball  Club,  37  Misc.  Rep.   (N.  Y.)   521. 

31.  Schwartz  v.  Duss,  187  U.  S.  8. 

32.  Construing  Const.  §  208  and  Ky.  St 
§  457 — Adams  Exp.  Co.  v.  Schofleld,  23  Ky. 
Law   Rep.    1120,    64    S.    W.    903. 

33.  Cleland  v,  Anderson  CNeb.)  92  N.  W. 
306. 

34.  Holding  Pub.  Acts  1897,  Act  No.  25. 
§  1,  not  Invalid  for  the  reason  that  It  grants 
two  remedies  against  the  association  and 
only  one  in  Its  favor — United  States  Heater 
Co.  v.  Iron  Molders'  Union  (Mich.)  8  Detroit 
Leg.  N.  978,  88  N.  W.  889. 

35.  Where  several  plead  non  joint  lia- 
bility the  joint  liability  of  even  defaulted 
defendants  must  be  proven  or  else  the  plead- 
ings must  be  amended  and  a  dismissal  had 
as  to  co-defendants  not  jointly  liable — Pow- 
ell Co.  v.  Finn,  198  111.  567. 

36.  Construing  Code  Civ.  Proc.  §  1919, 
in  an  action  against  a  president  to  recover 
damages  for  a  conspiracy  by  all  the  mem- 
bers to  injure  plaintiff's  business. — Rourke 
V.   Elk  Drug  Co.,  75   App.   Dlv.    (N.   Y.)    145. 

37.  Rourke  v.  Elk  Drug  Co.,  75  App.  Div, 
(N.  Y.)   145. 


23b 


ASSUMPSIT. 


§  5.  Dissolution  and  termination. — ^Where  the  existence  of  an  association  is 
limited  to  three  years,  after  which  its  affairs  were  to  be  wound  up  by  the  incum- 
bent officers,  a  distribution  of  its  property  may  be  enforced  in  equity  by  one  of 
the  members  where  five  years  have  elapsed  without  a  successful  attempt  to  wind 
up  its  affairs.^^  Where  property  contributed  to  a  community  becomes  joint  and 
indivisible  stock  and  contributions  are  irrevocable,  descendants  of  deceased  mem- 
bers who  contributed  no  property  to  the  society  have  no  rights  to  share  in  the 
property  of  the  society  on  its  dissolution  on  the  theory  of  a  resulting  trust.'*"  A 
court  of  chancery  may  have  jurisdiction  to  appoint  a  receiver  to  wind  up  the' 
affairs  of  an  association.*^  Proceedings  under  a  statute  for  winding  up  volun^ 
tary  associations  may  be  availed  of  by  creditors  becoming  such  after  incorpora- 
tion of  the  association,  the  debts  not  being  germane  to  the  corporate  existence 
and  no  notice  of  intention  to  incorporate  having  been  given  at  an  association 
meeting.*^  A  bill  filed  to  wind  up  an  association  is  not  bad  on  demurrer  though 
it  appear  that  one  of  the  creditors  is  a  foreign  corporation  and  there  is  no  show- 
ing that  it  has  been  authorized  to  do  business  in  the  state.*^ 

ASSUMPSIT. 

§  1.  Nature,  form,  and  propriety  of  action. — Assumpsit  cannot  be  maintained 
in  the  absence  of  an  express  or  implied  promise,  though  there  may  be  a  right  of 
action  for  deceit  or  a  suit  in  equity  for  an  accounting,^  but  it  may  be  brought 
where  the  party  making  an  offer  has  prevented  its  acceptance.-  It  does  not  lie 
for  negligent  performance  of  a  contract.^  By  statute,  it  may  lie  to  recover  a 
sum,  the  amount  of  which  must  be  ascertained  by  evidence.**  A  surplus  resulting 
from  a  sale  of  the  land  conveyed  to  a  creditor  by  a  debtor  for  such  purpose  may 
be  recovered  in  assumpsit.^ 

The  common  counts. — If  after  execution  of  a  contract  nothing  remains  but 
the  payment  of  the  agreed  price,  recovery  may  be  on  the  common  coimts.*     There 


38.  Holding  Pub.  Acts  1897,  Act  No.  25, 
§  1,  valid  and  not  beyond  the  power  of  the 
legislature  as  authorizing  associations  not 
legal  entities  to  be  sued — United  States  Heat- 
er Co.  V.  Iron  Holders'  Union  (Mich.)  8  De- 
troit Leg.   N.   978,   88   N.   W.   889. 

39.  Clerks'  Inv.  Co.  v.  Sydnor,  19  App.  D. 
C.  89. 

40.  Schwartz  v.  Duss,  187  U.  S.  8. 

41.  Bill  filed  under  Act  1'894  to  wind  up 
a  Grange,  organized  for  the  purpose  of  con- 
ducting a  general  store  for  the  benefit  of 
members,  which  was  conducted  under  a  su- 
perintendent in  his  own  name  though  the 
executive  functions  of  the  organization  were 
in  the  hands  of  three  trustees — Henry  v. 
Simanton    (N.    J.    Ch.)    54   Atl.    153. 

42.  Proceedings  under  Act  1899  after  in- 
corporation of  a  Grange — Henry  v.  Siman- 
ton   (N.    J.    Ch.)    54    Atl.    153. 

43.  Henry  v.  Simanton  (N.  J.  Ch.)  54  Atl. 
153. 

1.  Where  plaintiff,  defendant  and  a  third 
person  who  were  the  owners  of  the  entire 
stock  of  a  corporation  agreed  to  sell  it  and 
defendant  at  the  same  time  made  a  secret 
agreement  with  the  purchaser  to  be  paid  a 
further  sum  for  his  interest  in  consideration 
for  which  he  gave  an  option  on  other  prop- 
erty, plaintiff  cannot  main  tain  assumpsit  to 
recover  a  share  of  the  amount  so  received 
by  defendant — Cummings  v.  Synnott  (C.  C. 
A.)    120   Fed.    84. 

2.  Offer  to  sell  corporate  stock  to  remain 


open  until  a  particular  date  and  to  be  ac- 
cepted in  a  designated  manner  where  the 
party  is  prevented  from  accepting  it  by  the 
conduct  of  the  other — Guilford  v.  Mason, 
24  R.   I.   386. 

3.  A  declaration  for  "unskillfully  and 
negligently"  doing  what  was  "undertaken" 
sounds  in  case  and  not  assumpsit — Mullin  v. 
Flanders,   73  Vt.   95. 

4.  Under  Rev.  St.  c.  94,  §  10,  assumpsit 
will  lie  to  recover  unpaid  rental  under  a 
contract  by  which  defendant  took  possession 
of  and  operated  plaintiff's  boom,  agreeing 
to  collect  the  expenses  of  receiving  and 
delivering  logs  from  other  parties  and  pay 
plaintiff  its  proportionate  share  of  10% 
earned  on  the  capital  stock  of  plaintiff. 
The  proportionate  part  was  to  be  determined 
by  the  proportion  which  defendant's  logs 
and  lumber  bore  to  the  whole  number  of 
logs  and  other  lumber  handled. — Rumford 
Falls  Boom  Co.  v.  Rumford  Falls  Paper  Co., 
96  Me.   96. 

5.  There  was  an  oral  agreement  that  any 
surplus  remaining  should  be  paid  to  the 
debtoi- — Moran   v.    Munhall,    204    Pa.    214. 

6.  McDermott  v.  St.  W'ilhelmina  Benev. 
Aid  Soc.  (R.  I.)  54  Atl.  58;  McArthur  Bros.  v. 
Whitney,  202  111.  527.  Especially  where  the 
contract  only  fixes  a  maximum  price — Board 
of  Com'rs  v.  Gibson,  158  Ind.  471;  Union  El. 
R.  Co.  V.  Nixon.  99  111.  App.  502;  Zapel  v. 
Ennis,  104  111.  App.  175;  Morin  v.  Robarge 
(Mich.)    9  Detroit  Leg.  N.   635,   93  N.  W.   886. 


ASSUMPSIT. 


237 


may  be  recovery  on  the  common  counts  after  faulty  performance  of  a  special 
agreement.'' 

Where  a  special  contract  has  been  terminated  indebitatus  assumpsit  will  lie,* 
as  where  a  written  contract  is  rescinded,'  or  a  partly  performed  contract  aban- 
doned by  mutual  consent;^"  but  where  plaintiff  is  prevented  by  defendant  from 
performing  work  to  be  done  under  an  express  contract,  recovery  cannot  be  had 
under  the  common  counts." 

"Where  notes  are  given  for  an  obligation,  a  recovery  on  the  common  counts 
cannot  be  had  if  the  notes  are  introduced  in  evidence,  though  only  to  sustain  a 
specification  that  the  obligation  as  such  is  sought  to  be  recovered.^^ 

An  action  for  money  had  and  received  is  similar  to  a  bill  in  equity  and  may 
be  maintained  on  any  showing  that  defendant  received  or  obtained  possession  of 
money  of  the  plaintiff  which  in  equity  and  good  conscience  he  should  pay  over 
to  him.  It  is  a  liberal  action  in  which  all  tort,  trover,  and  damage  is  waived.^^ 
Where  defendant  has  actually  had  and  received  the  money,  it  is  immaterial  whether 
he  is  doing  business  in  his  own  name  or  in  the  name  of  a  purported  corporation.^* 

A  quantum  meruit  may  be  joined  to  a  declaration  on  a  special  contract. ^^ 

Money  paid  voluntarily  under  a  mistake  of  law  and  not  under  a  claim  of 
right  cannot  be  recovered  in  assumpsit,  though  otherwise  where  paid  under  a  mis- 
take of  fact.^^  A  count  for  money  paid  will  not  lie  against  a  town  on  account 
of  a  voluntary  payment  of  a  precinct  treasurer.^^  The  count  for  use  and  occupa- 
tion is  founded  on  an  express  or  implied  contract  and  there  must  be  the  rela- 
tion of  landlord  and  tenant.^^     The  title  to  real  estate  cannot  be  tried." 

Existence  and  waiver  of  other  remedies. — An  action  for  trover  may  be  waived 
and  assumpsit  brought,^"  so  where  personalty  is  delivered  in  exchange  for  land, 
assumpsit  may  be  maintained  if  the  party  agreeing  to  convey  the  land  refuses  to 
comply  though  the  personalty  has  not  been  converted  into  money  or  its  identity 
destroyed,^^  and  on  a  misappropriation  of  money  by  a  bank  clerk  the  tort  may 


7.  As  where  work  was  done  under  a  spe- 
cial agreement  but  not  in  the  stipulated 
time  and  manner  but  was  nevertheless  bene- 
ficial to  the  defendant  and  enjoyed  by  him 
—Empire  Coal  Co.  v.  Hull  Coal  Co.,  51  W. 
Va.   474. 

8.  Whether  the  termination  is  by  the 
terms  of  the  contract,  the  conduct  of  the 
parties  or  the  w^rongful  conduct  of  defend- 
ants— Zapel   V.    Ennis,    104   111.    App.    175. 

9.  Assumpsit  to  recover  a  payment  on 
rescission  for  fraud — Hanrahan  v.  National 
B.   L.  &  P.  Ass'n,   67  N.  J.  Law,   526. 

10.  Recovery  for  labor  performed — Em- 
pire Coal  Co.  V.  Hull  Coal  Co.,  51  W.  Va.  474. 

11.  Contract  to  fill  a  road,  prevented  of 
performance  by  failure  of  defendant  to  no- 
tify plaintiff  can  be  recovered  on,  only  on  the 
contract  agreement — Truitt  v.  Fahey  (Del. 
Super.)   52  Atl.  339. 

12.  Action  by  an  Insurance  agent  to  re- 
cover premiums  as  such,  and  introduction 
of  notes  given  by  the  policy  holder  for  the 
amount  thereof,  the  specification  being  that 
the  agent  sought  to  recover  the  premiums 
as  such — Aseltine  v.  Perry  (Vt.)   54  Atl.  190. 

13.  It  lies  whenever  one  man  has  re- 
ceived money  from  another  man  without  con- 
sideration— Law  V.  Uhrlaub,  104  III.  App.  263; 
Morris  v,  Jamieson,  99  111.  App.  32.  Where 
one  believing  defendant  to  be  the  owner  of 
realty  made  an  agreement  to  pay  rent  to 
him  the  true  owner  cannot  recover  such 
payments  from  defendant  as  money  had  and 


received — Sherman    v.    Spalding    (Mich.)     93 
N.    W.    613. 

14.  Level  V.  Chadbourne,  99  111.  App.  171. 

15.  Burton  v.  Rosemary  Mfg.  Co.  (N.  C.) 
!3   S.   E.   480. 

16.  Heath,  etc.,  Mfg.  Co.  v.  National  Lin- 
seed   Oil    Co.,    99    111.    App.    90. 

17.  A  count  for  money  paid  at  the  re- 
quest of  a  town  will  not  warrant  a  recov- 
ery against  it,  where  payment  was  volun- 
tarily made  by  the  treasurer  of  a  fire  pre- 
cinct for  water  pipe  which  one  of  the  pre- 
cinct commissioners  had  been  authorized  by 
the  chairman  of  the  town  selectmen  to  pro- 
cure, the  payment  being  to  accommodate  per- 
sons to  whom  it  was  due  and  not  because  the 
precinct  was  liable  or  because  the  town  had 
requested  him  to  make  It — Contoocook  Fire 
Precinct  v.  Hopkinton,  71  N.  H.  574. 

18.  Hill  V.  Coal  Val.  Mln.  Co.,  103  111. 
App.  41.  Possession  of  a  mere  trespasser 
will  not  sustain  an  action  for  iise  and  oc- 
cupation— Janouch  v.  Pence  (Neb.)  93  N.  W. 
217.  Assumpsit  for  use  and  occupation  can- 
not be  maintained  where  defendant  is  in 
possession  claiming  adversely  to  plaintiff 
and  under  a  third  person,  there  being  no 
contract  relation  between  the  parties — ^Ad- 
sit  V.  Kaufman   (C.  C.  A.)   121  Fed.   355. 

19.  Hill  V.  Coal  Val.  Min.  Co.,  103  111.  App. 
41. 

20.  Moore  v.  Richardson  (N.  J.  Err.  & 
App.)    53   Atl.   1032. 

21.  Plaintiff  is  not   required  to  resort  to 


238 


ASSUMPSIT. 


be  waived  and  suit  brought  on  an  implied  contract.^^  Assumpsit  will  not  lie  for 
failure  to  repair  property  occupied  under  an  agreement  for  a  fixed  rental.-^ 

An  action  of  assumpsit  may  be  brought  on  a  contract  though  it  contains  an 
'naccurate  reference  to  "foregoing  covenants,"  the  expression  "agreement,"  being 
elsewhere  used  throughout  the  contract.-* 

§  2.  The  declaration. — Though  the  declaration  is  on  a  special  contract,  re- 
covery may  be  had  on  a  common  coimt  in  general  assumpsit  if  sufficient  facts  are 
set  out,  though  there  is  not  a  specific  declaration  on  a  second  cause  of  action,  but. 
where  the  special  contract  is  established,  plaintiff  cannot  abandon  it  and  recove. 
on  the  common  count.^^ 

§  3,  Pleas  and  defenses .^^ — Where  the  tort  is  waived  and  suit  brought  in 
assumpsit,  the  defense,  available  to  a  defendant  in  trover,  of  showing  ownership 
and  right  of  possession  in  a  third  person,  may  be  asserted,-' 

A  defendant  who  has  refused  to  perform  an  express  contract  cannot  contend 
that  assumpsit  will  not  lie  with  regard  to  matter  covered  by  the  express  agree- 
ment and  on  assumpsit  after  refusal  of  defendant  to  return  the  consideration  on 
refusal  to  perform  a  contract  void  within  the  statute  of  frauds,  it  cannot  be 
contended  that  plaintiff  had  a  remedy  on  the  express  contract  until  the  statute 
of  frauds  was  pleaded.^* 

Wliere  the  contract  is  performed  according  to  its  terms,  it  cannot  be  shown 
that  the  work  done  was  without  value. ^® 

Defendant  in  an  action  for  money  had  and  received  may  set  off  the  indebted- 
ness of  plaintiff  to  him.^° 

Where  the  complaint  is  assumpsit  for  extra  work  outside  a  building  contract, 
it  is  not  a  sufficient  answer  to  aver  execution  of  the  original  contract.^^  It  will 
nQt  be  presumed  that  money  was  used  for  an  unlawful  purpose  in  the  absence  of 
an  express  averment.^^ 

§  4.  Evidence  and  instructions. — Under  the  general  issue,  plaintiff  has  the 
bi  rden  of  proving  the  contract  and  also  the  breach  of  it  assigned.^^  The  burden 
of  proof  of  a  set-off  is  on  defendant.^* 

Under  the  general  issue,  matter  in  discharge  of  the  promise  or  which  goes 
to  show  that  plaintiff  had  never  a  cause  of  action  is  admissible.^'*  Specific  rulings 
as  to  evidence  are  grouped  in  the  notes." 


replevin  or  trover  but  may  bring  an  action 
on  the  implied  agreement  after  termina- 
tion of  the  express  contract — Booker  v.  "Wolf, 
195  111.   365. 

22.  Lipscomb  v.  Citizens'  Bank  (Kan.)  71 
Pac.    583. 

23.  The  remedy  is  an  action  for  breach 
of  contract  where  a  party  renting  a  boom 
and  piers  fails  to  keep  them  in  repair — 
Rumford  Falls  Boom  Co.  v.  Rumford  Falls 
Paper   Co.,    96   Me.    96. 

24.  Gen.  Laws  1896,  c.  202,  §  4,  providing 
that  the  word  "covenant"  shall  have  the 
same  effect  as  though  a  seal  was  affixed, 
construed  In  an  action  on  a  contract  to 
furnish  engravings. — Providence  Tel.  Pub. 
Co.  V.  Crahan  Engraving  Co.  (R.  L)  52  Atl. 
804. 

25.  Burton  V.  Rosemary  Mfg.  Co.  (N.  C.) 
43    S.    B.    480. 

26.  Where  actions  of  assumpsit  are  lim- 
ited to  6  years  after  accrual  of  the  cause  of 
action,  an  action  on  a  note  secured  by  mort- 
gage Is  included — Houghton  v.  Tolman,  74 
Vt.   467. 

27.  Federal  courts  will  apply  this  rule  In 


Jurisdictions    where   It   is   upheld — Phelps   v. 
Church  of  Our  Lady   (C.  C.  A.)    115  Fed.  882. 

28.  Booker  v.   Wolf,   195   HI.   365. 

29.  In  assumpsit  by  a  contractor  to  re- 
cover the  value  of  certain  concrete  placed 
in  a  foundation  according  to  the  terms  of 
a  building  contract,  it  cannot  be  shown  that 
such  concrete  is  without  value  as  a  founda- 
tion.— Board  of  Com'rs  v.  Gibson,  158  Ind. 
471. 

30.  Morris  v.  Jamleson,   9?  111.  App.   32. 

31.  Complaint  alleged  that  the  work  was 
in  addition  to  the  work  required  by  the  orig- 
inal contract — Board  of  Com'rs  v.  Gibson, 
158    Ind.    471. 

32.  In  an  action  for  money  loaned  pleas 
must  aver  that  the  money  borrowed  was 
used  in  fact  for  the  unlawful  purpose  men- 
tioned— Edman  v.  Charleston  State  Bank, 
101   111.   App.   83. 

33.  Ward  V.  Athens  Mln.  Co.,  98  111,  App. 
227. 

34.  In  an  action  to  recover  the  contract 
price  of  certain  grading  In  which  defendant 
set    off    work    performed    by    It    In    order    to 


ATTACHMENT. 


239 


Instructions  as  to  defendant's  admissions  do  not  demand  his  presence  at  the 
trial."' 

§  5.  Verdict  and  judgment. — Damages  cannot  be  recovered  under  the  com- 
mon counts  except  for  a  failure  to  pay  money.^^  Where  a  tort  is  waived  and 
the  action  is  brought  in  assumpsit  and  not  for  a  conversion,  the  measure  of  dam* 
ages  is  the  value  of  the  property  at  the  time  of  conversion.^* 

ATTACHMENT. 


§  1.     Definition,   Nature,  and   Distinctions. 

§  2.     In  \Viiat  Actions  it  will  Issue. 

§  3.     Riglit  to  and  Grounds  for  tlie  Writ. 

§  4.     Attachable  Property. 

§  5.     Procedure  in  General. 

§  6.     Affidavit  and  its  Sufficiency. 

§  7.  Attachment  Bond. — Terms,  Liability, 
Actions. 

§  S.     The  Writ  or  Warrant. 

§  9.  The  Levy  or  Seizure. — Indemnifying 
Bonds;  Levy  on  Debts;  Notice;  Equitable  At- 
tachment. 

§  10.     Return  to  the  Writ. 

§  11.     Custody,  Sale,  Redelivery  or  Release 


of  Property — Confirmation;  Wrongful  Tak- 
ing- from  Officer. 

§  12.  Fortbcomins  Bonds  and  Receipts.^ 
Claimants'  Bonds. 

§  13.     Lien  or  Other  Consequences  of  Levy. 

§  14.  Conflicting  Levies,  Liens,  and  Cred- 
itors.— Priorities;  Mortgages;  Receivers;  As- 
signments; Bankruptcy. 

§  15.  EInforcenient  and  Dissolution,  Dis- 
charge, Vacation,  or  Abandonment. — Validity 
and  Grounds  to  Set  Aside;  Procedure. 

§  16.  Hostile  and  Opposing  Claims  to  At- 
tached Property. — Pleading;  Evidence;  Trial; 
Judgment. 

§  17.     AVrongful  Attachment. 


1.     Definition,  nature,  and  distinctions. — The  term  "attachment,"  as  here 


complete    the    job    in    time — McArthur    Bros. 
V.   Whitney.    202   111.   527. 

35.  The  plea  raises  the  question  of  wheth- 
er at  the  time  of  suit  there  was  an  exist- 
ing debt  or  cause  of  action — Ward  v.  Athens 
Min.    Co..    98   111.   App.    227. 

36.  On  a  complaint  for  value  of  certain 
cotton  alleged  to  be  due  under  a  w^ritten 
instrument  or  mortgage  executed  by  defend- 
ant, the  mortgage  is  admissible — Ingram 
V.  Bussey,  133  Ala.  539.  In  an  action  for  the 
use  and  occupation  of  certain  rooms  in 
which  were  presses  alleged  to  belong  to 
defendant  under  a  bill  of  sale,  evidence  of 
a  bill  of  sale  of  presses  executed  by  de- 
fendant to  a  third  person  and  the  record 
of  a  suit  by  him  for  breach  of  contract 
to  purchase  such  presses  are  admissible 
to  controvert  a  contention  of  defendant  that 
the  bill  of  sale  had  been  executed  to  him 
to  enable  him  to  sell  the  presses  as  mort- 
gagee; but,  concerning  the  action  for  breach 
of  contract,  a  question  is  too  broad  which 
asks  defendant  to  state  the  circumstances 
under  which  the  action  was  brought,  and 
whether  it  was  brought  at  the  request  of 
another.  Letters  to  defendant  showing  that 
the  writer  was  endeavoring  to  obtain  pur- 
chasers and  that  the  bill  of  sale  was  to  give 
defendant  authority  to  sell  the  presses  as 
the  property  of  the  mortgagor  are  admissi- 
ble, together  with  the  bill  of  sale  and  an 
offer  by  defendant  to  purchase  the  property 
— Emory  Mfg.  Co.  v.  Rood,  182  Mass.  166. 
Where  under  an  agreement  for  grading  the 
right  was  reserved  to  put  on  an  additional 
force  and  deduct  the  cost  from  the  contract 
price,  in  an  action  for  grading  the  amount 
and  value  of  the  grading  done  before  defend- 
ant put  on  its  own  force  Is  admissible — 
McArthur  Bros.  v.   Whitney,   202  111.   527. 

Under  the  general  issue  it  may  be  shown 
that  the  contract  was  void  or  voidable,  that 
it  was  performed,  that  there  was  a  legal 
excuse  for  nonperformance,  such  as  a  re- 
lease or  discharge  before  breach  or  non- 
performance    of    a    condition     precedent     or 


that  it  was  rescinded — Ward  v.  Athens  Min. 
Co.,    98   111.   App.    227. 

Under  a  quantum  meruit  the  value  of  the 
services  and  not  the  benefits  Immediate  or 
remote  that  have  been  derived  therefrom  is 
in  issue — Rothstein  v.  Siegel,  Cooper  &  Co., 
102  111.  App.  600.  It  cannot  be  shown  what 
services  were  worth  to  third  persons  at  a 
time  after  that  In  which  they  were  rendered 
to  defendant — Connelly  v.  Cover,  102  111.  App. 
426.  The  plaintiff  may  show  ill  treatment 
by  defendant  compelling  him  to  abandon  a 
special  contract  in  an  action  on  quantum 
meruit  for  the  services  performed  thereon — 
Davis  V.  Streeter  (Vt.)   54  Atl.  185. 

Sufficiency.  Evidence  held  insufficient  to 
warrant  a  recovery  in  assumpsit  for  money 
to  be  paid  on  purchase  of  land — Newman  v. 
Baker  (Mich.)  9  Detroit  Leg.  N.  232,  90  N. 
W.  1027.  An  action  on  quantum  meruit  for 
work  performed  may  be  sustained  by  evi- 
dence showing  that  plaintiff  performed  serv- 
ices in  keeping  house  for  defendant  under  a 
contract  on  his  part  to  take  care  of  her  and 
her  children  and  to  marry  her,  which  she 
was  forced  to  abandon  by  defendant's  ill 
treatment  and  a  refusal  to  permit  one  of 
her  children  to  remain  in  the  house — Davis 
V.   Streeter   (Vt.)    54  Atl.   185. 

37.  An  Instruction  that  defendant  admits 
that  the  work  was  done  but  not  to  the  ex- 
tent claimed  by  plaintiff  If  warranted  by 
the  evidence  may  be  given,  though  defendant 
himself  was  not  present  at  the  trial — Morin 
V.  Robarge  (Mich.)  9  Detroit  'Leg.  N.  635, 
93   N.  W.    886. 

38.  A  verdict  for  damages  resulting  from 
failure  to  do  any  other  particular  thing 
agreed  to  be  done,  cannot  be  supported — 
Stewart  Mfg.  Co.  v.  Iron  Clad  Mfg.  Co.,  67 
N.   J.   Law.   577. 

39.  It  is  error  to  base  the  damages  on 
the  cost  price  specified  In  an  agreement 
antedating  the  conversion,  if  there  Is  other 
evidence  of  value  more  favorable  to  defend- 
ant— Moore  v.  Richardson  (N.  J.  Err.  & 
App.)  53  Atl.  1032. 


240 


ATTACHMENT. 


used,  is  confined  to  original  or  mesne  process  by  seizure  of  property  whict  it  is 
sought  to  subject  to  a  demand.  In  some  jurisdictions  it  is  applied,  though  in- 
accuratel^y,  to  garnishment  proceedings  as  well.  Garnishment  is  designed  to  reach 
a  third  person's  obligation  towards  the  defendant,  the  process  issuing  against  such 
third  person.  These  are  the  modern  uses  of  the  terms.  Attachment  of  the  person 
is  now  usually  considered  in  connection  with  the  law  of  contempt.  The  practice 
in  justices'  courts  on  issuing  attachment  is  more  appropriately  treated  in  another 
place.^  The  exemption  of  property  from  such  process,-  and  the  liability  of  officers 
for  a  wrongful  lev}^,  will  also  be  treated  elsewhere.^ 

§  2.  In  what  actions  it  will  issue. — The  local  statutes  must  be  consulted.  Ex 
contractu  actions  for  liquidated  demands  almost  universally  warrant  attachment. 
Unliquidated  demands  and  immature  ones  in  most  of  the  states,  and  tort  actions 
in  some  jurisdictions,  may  support  attachment.*  Special  grounds,  as  fraud,  or 
nonresidence,  or  concealment,  must  in  some  states  coexist  with  the  fact  that  the 
action  is  of  a  given  class.^  The  remedy  will  not  lie  in  a  proceeding  to  revive  a 
dormant  judgment,*  but  may  be  employed  to  enforce  collection  of  a  chancery  decree 
for  money,  as  in  the  case  of  a  judgment  at  law.'^  Attachment  will  issue  on  a  claim 
for  the  contract  price  of  cut  marble  for  building,  which  may  be  rendered  certain  as 
to  amount.*  It  will  not  lie  in  a  suit  for  breach  of  marriage  promise  under  a 
statute  authorizing  attachment  on  affidavit  showing  a  just  claim  to  be  due.'  A  debt 
for  coal  for  domestic  purposes  is  within  the  law  giving  attachment  on  a  claim  for 
"necessaries."^"  Attachment  in  action  to  recover  the  value  of  goods  fraudulently  con- 
veyed cannot  be  refused  as  suing  for  a  penalty,  and  not  a  debt;^^  but  the  right  to 
money  obtained  by  a  third  person's  fraud  from  its  owner  is  not  a  debt  warranting 
the  issuance  of  attachment,  though  the  holder  is  bound  to  reimburse  the  owner.^" 
Attachment  may  issue  against  property  of  one  joint  debtor  in  favor  of  a  creditor, 
who  has  filed  an  affidavit  bringing  him  within  the  attachment  act,  and  the  summons 
may  include  all  shown  by  the  affidavit  to  be  indebted,  regardless  of  the  attachment.^* 
In  South  Carolina  it  issues  in  aid  of  an  action  for  unliquidated  damages  sounding 
in  tort.^* 

§  3.  Right  to  and  grounds  for  the  writ. — Statutory  attachment  on  claims  not 
due  is  a  matter  of  right,^^  and  not  of  discretion. 

Nonresidence. — If  a  nonresident  is  not  subject  personally  to  jurisdiction  of  the 
court  his  property  is  attachable.^®  Actual  residence  of  the  debtor,  and  not  his 
domicile,  determine  his  status  in  attachment.^^  Personal  service  does  not  establish 
that  defendant  is  resident  of  the  state.^*  Attachment  will  not  issue  for  nonresi- 
dence while  an  amended  law  is  in  force  which  does  not  make  nonresidence  the 


1.  See  the  forthcoming  articles  on  Con- 
tempt, Garnishment,  Justices  of  the  Peace. 
Attachment  of  the  person  to  enforce  alimony, 
see  Curr.  Law  No.  1,  p.  74,  Alimony.  At- 
tachment to  enforce  payment  of  rent,  see 
Landlord    and   Tenant. 

2.  Exemptions. 

3.  Sheriffs   and  Constables. 

4.  On  contract  of  employment — Cohen  v. 
Walker,    38    Misc.    Rep.    (N.   T.)    114. 

5.  See  post,   §   3. 

6.  Farak  v.  First  Nat.  Bank  (Neb.)  93  N. 
W.    682. 

7.  Whalen  v.  Billings,   104  111.  App.   281. 

8.  Sullivan  v.    Moffat    (N.   J.)    52   Atl.    291. 

9.  Gen.  Laws  R.  L  c.  252,  §§  14,  17 — Mainz 
V.  Lederer    (R.  I.)    51  Atl.   1044. 

10.  Rev.  St.  Ohio,  §  6489,  providing  attach- 
ment for  recovery  of  a  claim  for  necessaries 


— Co.llns   v.\  Bingham,    22    Ohio    Clr.    Ct.    R. 
533. 

11.  Rothschild  V.  Knight,  184  U.  S.  334, 
46    Lawy.    Ed.    573. 

12.  Ryles,  Wilson  &  Co.  v.  Shelley  Mfg. 
Co.,   93   Mo.  App.   178. 

13.  Jones  v,  Lunceford,  95  111.  App.  210. 

14.  Chltty  V.  Pennsylvania  R.  Co.,  62  S. 
C.   526. 

15.  Code  Civ.  Proc.  Kan.  §§  230,  231 — Nel- 
son v.  Stull  (Kan.)  70  Pac.  590. 

le.  Rev.  St.  Ohio,  S  5524 — Thompson  v. 
Ogden,  23  Ohio  Cir.  Ct.  R.  185. 

What  absence  shows  nonresidence  under 
the  attachment  law — Stickney  v.  Chapman, 
115  Ga.  759. 

17.  Thompson  v.  Ogden,  23  Ohio  Cir.  Ct 
R.   185. 

18.  Hall  V.  Packard,  01  W.  Va.  264. 


RIGHT  TO  WRIT. 


241 


ground  of  attachment.^'  Attachment  of  debts  owing  to  a  nonresident  creditor  in 
the  state  of  his  debtor's  residence  according  to  its  laws  does  not  deprive  the  creditor 
of  property  without  due  process  of  law.^°  Wrongful  discharge  of  a  servant  may  be 
ground  for  an  attachment  against  property  of  a  nonresident  employer.-^  Mere 
temporary  absence  from  the  state  to  work  for  three  months  is  not  nonresidence 
justifying  attachment.^^  Voluntary  removal  from  the  state  to  discharge  duties  of 
indefinite  duration,  requiring  continuous  absence  for  an  unlimited  time,  shows  non- 
residence  under  the  attachment  law;  and  an  occasional  return  to  visit,  or  intent 
to  return  at  some  uncertain  time  in  the  future,  will  not  prevent  loss  of  residence.-^ 
Embezzlement  by  a  bank  clerk  will  authorize  suit  on  an  implied  contract  for  his 
honesty  and  good  faith,  and  an  attachment  of  his  property,  where  he  is  a  nonresi- 
dent.-* 

Attachment  against  corporations. — Attachment  may  issue  against  a  foreign 
corporation  or  a  nonresident  defendant  on  the  same  grounds  as  a  resident  defendant, 
and  because  of  nonresidence  alone,  in  aid  of  an  action  on  contract  or  a  judgment  or 
an  award.^^  That  a  foreign  corporation  has  an  office  and  does  business  within  the 
state  will  not  prevent  attachment  against  it.^^  A  domestic  corporation  with  its 
chief  office  or  place  of  business  within  the  state  is  not  liable  to  attachment  provided 
against  foreign  corporations.-^  It  cannot  issue  against  national  banks,  whether  solv- 
ent or  insolvent.-^  A  suit  in  equity,  in  attachment,  for  breach  of  contract,  to  which 
a  national  bank  is  made  defendant  because  it  received  the  proceeds,  is  not  an  at- 
tachment prohibited  by  the  federal  statute.^' 

Fraudulent  transfer  or  disposition  of  property. — Fraudulent  transfer  of  a 
debtor's  assets  is  ground  for  attachment  of  the  property.'"  The  writ  should  be  sus- 
tained if  the  acts  of  defendant  constituting  plaintiff's  ground  were  committed  with 
an  intent  to  hinder,  delay,  or  defraud  creditors,  or  either  of  these.^^  An  attachment 
will  lie  in  Tennessee  on  behalf  of  a  judgment  creditor  to  set  aside  a  fraudulent 
transfer  of  property,  and  subject  defendant's  equity  of  redemption  to  payment  of 
the  judgment.^^  Creditors  may  proceed  by  attachment  to  subject  assets  of  a  cor- 
poration to  their  claims,  where  such  assets  have  been  transferred  to  a  new  cor- 
poration to  defeat  such  claims.'^  An  irregular  sale  of  goods  from  a  debtor's  factory, 
below  cost,  and  out  of  all  usual  course  of  business,  will  justify  attachment,  unless 


19.  Act  April  26,  1898,  repealed  in  1900, 
amended  Rev.  St.  Ohio,  §  5521,  but  failed  to 
make  nonresidence  a  ground  of  attachment 
— Hough  V.  Dayton  Mfg.  Co.,  66  Ohio  St. 
427. 

20.  Rothschild  v.  Knight,  184  U.  S.  334. 
46  Lawy.  Ed.  573;  affirming  judgment,  176 
Mass.    48. 

21.  Cohen  v.  Walker,  38  Misc.  Rep.  (N. 
Y.)  114,  11  N.  Y.  Ann.  Cas.  135. 

22.  Sufficiency  of  evidence  of  defendant's 
witnesses  to  establish  his  intention  to  re- 
main a  resident — Newlon-Hart  Grocer  Co.  v. 
Feet  (Colo.  App.)  70  P.  446. 

23.  Thompson  v.  Ogden,  23  Ohio  Cir.  Ct. 
R.  185. 

24.  Gen.  St.  Kan.  1901,  §  4624,  authorizing 
attachment  against  nonresidents  on  demands 
arisir,,;  on  contract — Lipscomb  v.  Citizens' 
Bank  (Kan.)   71  P.  583. 

25.  Civ.  Code  Prac.  Ky.  §  194 — Bates  Mach. 
Co.  v.  Norton  Iron  Works  (Ky.  App.)  68  S. 
W.   423. 

26.  Voss  v.  Evans  Marble  Co.,  101  111.  App. 
373. 

27.  "Or,"  in  Code  Colo.  §  ^2,  providing  for 
such  attachment,  should  read   "and" — Rocky 

Cur.  Law — 16. 


Mountain    Oil    Co.    v.    Central    Nat.    Bank,    29 
Colo.  129,  67  P.  153. 

28.  Under  Rev.  St.  U.  S.  §  5242 — Van  Reed 
V.  People's  Nat.  Bank,  173  N.  Y.  314. 

29.  Rev.  St.  U.  S.  §  5242;  the  bank  pur- 
chased a  draft  given  for  a  sale  of  corn,  and 
received  payment — Searles  v.  Smith  Grain 
Co.,   80  Miss.   688. 

30.  Colorado  Trading  &  Transfer  Co.  v. 
Acres  Commission  Co.  (Colo.  App.)  70  Pac. 
954. 

Sufficiency  of  evidence  of  attempts  to  de- 
feat efforts  of  creditors  warranting  the  is- 
suance of  attachment — Blewett  v.  Sprague, 
24  Ky.  Law  R.  1860.  Sufficiency^of  evidence 
to  sustain  fraudulent  disposition'of  property 
as  to  creditors — Dye  v.  Bank  of  Plankinton 
(S.  D.)   92  N.  W.  28. 

Evidence  of  fraudulent  purpose  to  re- 
move property  held  insufficient^Rallings  v, 
McDonald,    76   App.   Div.    (N.   Y.)    112. 

31.  Bowles  Live-Stock  Commission  Co.  v. 
Hunter,  91  Mo.  App.   333. 

32.  Templeton  v.   Mason,   107   Tenn.    625. 

33.  The  stockholders  of  the  new  corpora- 
tion need  not  be  made  parties,  nor  need  they 
be  given  notice  of  pendency  of  the  attach- 
ment— Buckwalter  v.  Whipple,  115  Ga.  484. 


242 


ATTACHMENT. 


Buch  sale  was  secretly  made  without  defendant's  knowledge.'*  That  a  iehi  i§  about 
to  be  collected  by  a  nonresident  creditor  who  will  take  the  money  from  the  state, 
leaving  insufficient  property  to  satisfy  a  claim  against  the  creditor,  is  sufficient  for 
an  attachment  against  him.^^ 

§  4.  Atiachahle  property. ^^ — The  remedy  will  lie  against  any  property  of  de- 
fendant, not  exempt,  within  the  county  of  the  officer  serving  the  writ,  though  in 
possession  of  plaintiff.^^  Horses  in  possession  of  a  trainer,  and  entered  in  races 
in  his  name,  cannot  be  attached  for  his  debts.^^  Money  borrowed  by  defendant  to 
deposit  as  bail  is  not  attachable.^^  Eefusal  of  a  debtor  to  receive  goods  which  he 
had  bought  from  third  person,  and  his  attempt  to  secure  their  sale  to  another, 
shows  a  rescission  of  the  sale  to  him  preventing  attachment  of  the  goods  as  his 
property.*"  Where  the  property  of  debtors  was  transferred  to  a  creditor  by  his 
receipt  of  the  keys  of  the  building  where  it  was  stored,  and  removal  of  part  of 
the  property,  as  well  as  by  execution  of  an  unrecorded  instrument,  the  apparent 
possession  by  the  debtors  of  the  remainder,  which  was  not  removed,  was  not  suffi- 
cient to  sustain  attachment.*^  Money  deposited  within  the  jurisdiction  by  a  for-  - 
eign  corporation  having  an  office  there  may  be  attached  for  a  debt  made  in  the 
course  of  business  in  the  state,  as  where  held  by  a  public  officer  to  secure  the  debt 
in  litigation,  the  custody  of  the  law  being  no  obstacle. *- 

]\Ioney  deposited  in  a  federal  court  pending  litigation  cannot  be  attached  by 
any  other  court.*^  Attachment  cannot  issue  against  an  estate  being  administered,*"* 
nor  money  in  hands  of  an  executor  or  administrator,*'^  nor  the  interest  of  the 
beneficiary  of  a  trust,*^  nor  lands  conveyed  in  trust  for  the  benefit  of  creditors,*^ 
nor  personal  property  of  a  partnership  on  the  death  of  one  of  the  partners,  so 
as  to  afl:ect  the  partnership  estate,*^  nor  upon  interest  coupon  bonds,  brought  iuto 
the  state  by  the  receiver  of  a  foreign  corporation  in  an  action  to  recover  damages 
for  breach  of  contract  between  the  corporation  and  the  attachment  plaintiff.*^ 

A  lien  could  not  have  been  obtained  by  attachment  on  land  fraudulently  con- 
veyed as  to  creditors  in  Iowa  prior  to  Code,  §  3899.^**  A  law  providing  for  attach- 
ment and  sale  of  liquor  licenses  includes  the  certificate  and  the  franchise  under  the 
license.^^  The  owner  may  use  reasonable  force  to  retake  exempt  property  attached 
by  an  officer.  ^^ 

Attachable  debts  and  choses  in  action. — Decisions  relative  to  this  question  per- 


34.  Secret  sale  fails  to  support  fraudulent 
intent — Abel  &  Bach  Co.  v.  Duffy,  106  La. 
260. 

35.  Civ.  Code  Prac.  Ky.  §  194,  subsec.  6, 
providing  for  attachment  against  debtors 
about  to  remove,  or  who  have  removed,  their 
property  from  the  state — Bates  Mach.  Co.  v. 
Norton  Iron  Works   (Ky.  App.)   68  S.  W.   423. 

36.  Sufficiency  of  evidence  to  show  that 
title  to  goods  remained  in  the  shipper,  re- 
gardless of  indorsement  of  the  bill  of  lad- 
ing, so  as  to  render  them  liable  to  attach- 
ment as  his  property — Westervelt  v.  Phelps, 
171  N.  Y.   212. 

37.  Gallun  v.  Weil   (Wis.)   92  N.  W.  1091. 

38.  Anderson  v.  Heile  (App.)  23  Ky.  Law 
R.   1115. 

39.  Railings  v.  McDonald,  76  App.  Div. 
(N.    Y.)    112. 

40.  Blaul  V.   Mayes    (Iowa)    90  N.   W.   730. 

41.  Under  Code,  §  2906,  making  the  reten- 
tion of  actual  possession  without  record  of 
an  instrument  in  evidence  of  a  sale  sufficient 
to  warrant  seizure  under  an  attachment 
against  the  vendor — Peycke  v.  Hazen  (Iowa) 
»3  N.  W.  568. 


Katz,   65  App. 


42.  India    Rubber    Co. 
Div.    (N.  Y.)    349. 

43.  Jurisdiction  of  the  court  over  such 
money  continues  until  a  decree  or  order  for 
Its  disbursement  has  been  executed — Corbitt 
v.  Farmers'  Bank   (Va.)    114   Fed.   602. 

44.  Barnes   v.   Stanley,   96   Mo.  App.   1. 

45.  Gorman  v.  Stillman  (R.  I.)  52  Atl. 
1088. 

46.  Fiske  V.  Parke,  77  App.  Div.  (N.  Y.) 
422. 

47.  3  Comp.  Laws  Mich.  §  S839.  The  trus- 
tees are  entitled  to  the  property  in  order  to 
complete  their  power — Geer  v.  Traders'  Bank 
of  Canada  (Mich.)   9  Detroit  Leg.  N.  578. 

48.  Barnes    v.    Stanley,    96    Mo.    App.    1. 

49.  Woodhull  v.  Farmers'  Trust  Co.  (N. 
D.)    90  N.  W.   795. 

50.  Byers  v.  McEniry  (Iowa)  91  N.  W. 
797. 

51.  Acts  Conn.  1895,  c.  123,  giving  right 
of  attachment  against  interests  under  liquor 
licenses — Quinnipiac  Brew.  Co.  v.  Hackbarth, 
74   Conn.   392. 

52.  Property  exempt  under  Gen.  St.  Conn. 
§  1164 — State  v.  Hartley   (Conn.)   52  Atl.   615. 


PROCEDURE    IN    GENERAL. 


243 


tain  more  properly  to  the  law  of  garnishment,  q.  v.,  biit  a  few  decisions  are  col- 
lected here.  Demands  against  the  public/^  or  in  litigation,"  or  unliquidated 
claims,^^  or  interests  in  partially  performed  contracts,^^  are  not  subject  to  such 
process.  For  attachment  purposes,  a  debt  secured  by  bond  and  mortgage  does  not 
exist  and  cannot  be  attached  independent  of  the  securities.°^  A  creditor  of  a 
foreign  firm  cannot  attach  a  debt  due  from  a  foreign  corporation  to  the  firm  within 
the  state,  and  payment  of  the  debt  will  not  avail  the  corporation  against  subse- 
quent action  for  recovery  by  a  receiver  of  the  firm.°*  An  attachment  of  a  debt 
existing  by  reason  of  insurance  of  property  destroyed  by  fire,  given  by  a  company 
domiciled  in  another  state,  is  not  invalid  because  levied  before  adjustment  of  the 
loss,  since  the  amount  may  be  ascertained  in  the  proceeding.  The  situs  of  the 
debt  was  the  domicile  of  the  company,  and  it  could  be  attached  in  an  action  against 
the  company  there.^®  No  demand  exists  in  favor  of  insured  in  a  tontine  policy, 
providing  for  no  cash  surrender  value,  until  completion  of  the  tontine  period,  and 
no  benefit  accrues  to  the  insured  or  beneficiary  before  that  time,  except  the  face 
value  in  case  of  death,  which  is  liable  to  attachment  by  service  of  warrant  and 
notice  to  the  insurance  company;  nor  is  the  right  of  a  holder  of  a  tontine  policy 
to  elect  to  take  a  cash  surrender  value,  annuity,  or  a  paid-up  policy  in  settlement 
a  cause  of  action,  a  demand,  or  property  liable  to  attachment. °° 

§  5.  Procedure  in  general. — A  petition  showing  that  the  debt  of  the  attach- 
ment defendant  is  a  judgment  on  which  execution  has  issued,  sufficiently  shows  the 
debt  to  be  due.®^ 

Beginning  action  and  acquiring  jurisdiction. — Jurisdiction  of  an  action  against 
nonresident  debtors  is  acquired  under  the  Michigan  practice  by  commencement  of 
attachment  against  land  fraudulently  conveyed  by  them,^^  and  of  its  property  by 
attachment  against  a  foreign  corporation.®'  The  jurisdiction  secured  by  publication 
applies  to  the  property  only  to  the  extent  of  the  amount  claimed  in  the  publica- 
tion.®* The  rule  that  a  common-law  action  is  commenced  when  summons  is  issued 
applies  to  an  attachment.®^  The  issuance  of  the  writ  for  the  seizure  of  the  prop- 
erty is  not  requisite  to  an  order  for  service  by  publication.®® 

Necessity  of  issu/ince  of  summons. — The  conditions  precedent  to  issuance  of  a 
writ  are  the  concurrent  issuance  of  a  summons,  unless  that  has  already  been  done, 
and  the  action  has  not  proceeded  to  final  judgment,  and  that  the  ground  for  a 
writ  is  proper.®'^  The  mere  order  by  the  clerk  for  publication  of  summons  and 
notice,  and  filling  out  the  papers  without  issuance,  will  not  give  jurisdiction  where 
issuance  is  not  waived.®^     An  attachment  in  aid,  issued  before  return  of  a  notice 


53.  Board  v.  Bodkin   (Tenn.)   69  S.  W.  270. 

54.  Waples -Platter  Co.  v.  Texas  &  P.  R. 
Co.  (Tenn.)  68  S.  W.  265;  Nelson  v.  StuU 
(Kan.)  70  Pac.  590. 

55.  Waples-Platter  Co.  v.  Texas  &  P.  R. 
Co.   (Tex.)   68  S.  W.  265. 

56.  Rothrock  Co.  v.  Port  Gibson  Co.,  80 
Miss.    517. 

57.  Fiske  V.  Parke,  77  App.  Div.  (N.  T.) 
422. 

58.  Allen  V.  United  Cigar  Stores  Co.,  39 
Misc.   Rep.    (N.  Y.)    500. 

59.  Sexton  v.  Phoenix  Ins.  Co.  (N.  C.) 
43   S.   E.    479. 

60.  Under  Code  Civ.  Proc.  N.  T.  §  649, 
subd.  3,  providing  for  attachment  against 
Insurance  companies  on  interests  in  policies, 
and  sections  648,  649 — Columbia  Bank  v. 
Equitable  Life  Assur.  Soc.  (Sup.)  80  N.  T. 
Supp.  428. 

61.  Petition     held     not     uncertain     as     to 


amount  realizable  from  estate  of  a  codebtor 
— First  Nat.  Bank  v.  Wallace  (Tex.  Civ. 
App.)    65   S.   W.    392. 

63.  Comp.  Laws  Mich.  §§  10,556,  10.559,  pro- 
viding for  attachment  for  fraudulent  con- 
veyance, and  section  9167,  applying  the  at- 
tachment to  real  estate — Archer  v.  Strachan 
(Mich.)   8  Detroit  Leg.  N.  920,  88  N.  W.  465. 

63.  Chitty  V.  Pennsylvania  R.  Co.,  62  S. 
C.  526. 

64.  Code  N.  C.  §  352,  requiring  the  publica- 
tion of  warrant  and  summons  to  state  the 
amount  of  the  claim — Alpine  Cotton  Mills  v. 
Weil,   129   N.   C.    452. 

65.  Under  Code  Va.  §§  3223,  3959— Furst  v. 
Banks   (Va.)    43  S.  E.  360. 

66.  Gallun  v.  Weil  (Wis.)   92  N.  W.  1091. 

67.  Under  Rev.  St.  Wis.  1898,  §§  2730,  2731 
— Gallun   V.   Weil    (Wis.)    92   N.   W.    1091^ 

68.  Code  N.  C.  §§  161,  199,  219,  348,  and 
352 — McCIure  v.  Fellows,  131  N.  C.  509. 


244 


ATTACHMENT. 


in  an  action  for  money  on  contract,  under  a  law  providing  that  judgment  may  be 
had  after  fifteen  days'  notice,  is  void.®^ 

In  New  York,  proof  of  the  issuance  of  summons  is  not  a  necessary  condition 
to  issuance  of  the  writ.''"  Also,  in  Kansas,  the  filing  of  a  petition,  the  issuance 
of  summons,  and  the  levy  of  the  writ  constitute  the  taking  of  an  attachment,  though 
no  personal  service  was  had  or  service  by  publication  attempted  until  after  filing  pe- 
tition/^ Under  a  law  requiring  publication  to  be  within  a  certain  time,  it  may  be- 
gin on  the  last  day.'^^  Filing  an  affidavit  of  nonresidence,  stating  defendant's  resi- 
dence, and  mailing  a  copy  of  publication  to  defendant  more  than  two  years  after  the 
return,  is  insufficient/^ 

§  6.  Affidavit  and  its  sufficiency.'^* — Facts  constituting  ground  for  an  attach- 
ment must  appear  by  a  verified  affidavit,  and  must  be  proved  by  the  plaintiff  on 
the  trial/^  A  verified  complaint,  merely  stating  on  information  and  belief  that 
certain  persons  had  contracted  with  plaintiff  as  agents  of  defendant,  is  insufficient. 
An  affidavit  must  be  filed  showing  the  facts  of  the  agency  or  the  grounds  for  plain- 
tiff's belief/®  The  clerk  of  a  superior  court  of  Georgia  cannot  administer  an  affi- 
davit/^ An  affidavit  made  by  the  principal  in  the  transaction  out  of  which  the 
cause  of  action  arose,  who  had  been  in  personal  contact  with  defendant,  reciting 
that  the  latter  was  the  resident  of  another  state,  is  sufficiently  made  on  personal 
knowledge/*  An  affidavit  on  the  ground  of  fraudulent  transfer  of  property  is 
not  a  direction  to  an  officer  to  levy  on  property  in  the  hands  of  a  purchaser  from 
the  transferee/^ 

Averments  in  general. — A  statement  of  mere  conclusions  and  not  facts  relating 
to  the  existence  of  a  debt  owing  to  plaintiff  from  defendant  is  insufficient.*"  A 
statement  in  an  affidavit  that  certain  facts  will  be  alleged  in  the  complaint  is  insuffi- 
cient to  show  the  truth  of  such  facts.*^  The  affidavit  may  be  made  by  an  agent.*- 
A  complaint  and  affidavit  by  the  agent  of  plaintiff  on  information  and  belief,  taken 
from  correspondence  and  telegrams  from  his  principal,  without  setting  forth  the 
correspondence,  are  insufficient.** 

It  must  state  the  debt  to  be  recovered  in  amount  over  and  above  all  legal 
set-offs  and  counterclaims,  and  that  the  debt  is  due.**     The  amount  of  plaintiff's 


69.  The  attachment  was  issued  under  Code 
Va.  §  2959,  in  aid  of  an  action  under  Code 
Va.  §  3211 — Furst  v.  Banks  (Va.)  43  S.  E. 
360. 

70.  Code  Civ.  Proc.  N.  T.  §  638 — Belmont 
V.  Signa  Iron  Co.  (Sup.)  80  N.  T.  Supp.  771. 

71.  Code  Civ.  Proc.  Kan.  §  20,  providing 
for  the  first  publication  or  service  •within 
sixty  days,  applies  only  to  the  statute  of 
limitations.  Section  57,  providing  for  com- 
mencement of  actions,  applies  to  civil  actions 
in  general — Wester  v.  Long,  63  Kan.  876,  66 
Pac.   1032. 

72.  July  31st  to  August  30th  Is  thirty 
days,  within  Code  Civ.  Proc.  §  638 — Doheny 
V.  Worden,  75  App.  Dlv.  (N.  T.)  47;  Salt 
Springs   Nat.    Bank  v.  "Worden,   Id. 

73.  Britton   v.   Gregg,    96    111.   App.    29. 

74.  Sufficiency  of  affidavit  for  attachment 
as  against  a  motion  for  dissolution  by  other 
creditors — Axford  v.  Seguine.  70  App.  Div. 
(N.  Y.)  228;  of  affidavit  and  complaint  in 
attachment  against  a  foreign  corporation 
to  show  that  the  corporation  was  foreign, 
under  Code  Civ.  Proc.  N.  Y.  §  1776,  requiring 
an  affirmative  verified  allegation  thereof — 
Steele  v.  R.  ?.I.  Gilmour  Mfg.  Co..  77  App. 
Div.  (N.  Y.)  199;  of  affidavit  to  show  that 
plaintiff  owned  property  shipped  by  defend- 


ant's railroad  as  a  connecting  line;  under 
Rev.  St.  S.  C,  providing  that  a  connecting 
carrier  is  liable  severally  wilh  the  receiving 
line  for  loss  or  damage  to  freight — Chitty 
V.   Pennsylvania  R.  Co.,   62  S.  C.   526. 

75.  Brandenburg  v.  Malcolm,  102  111.  App. 
302. 

76.  Civ.  Code  Proc.  N.  Y.  §  636.  renders 
an  affidavit  necessary — Sizer  v.  Hampton  & 
B.  R.  Lumber  Co.,  67  App.  Div.  (N.  Y.) 
547. 

77.  Heard  v.  Naty  Bank  of  Illinois,  114 
Ga.   291. 

78.  Hayden  v.  Mullins,  76  App.  Div.  (N. 
Y.)    69. 

79.  Siersema  v.  Meyer,  38  Misc.  Rep.  (N. 
Y.)    358. 

80.  American  Audit  Co.  v.  Industrial  Fed- 
eration   (Sup.)    80  N.   Y.  Supp.    788. 

81.  Axford  V.  Seguine,  70  App.  Div.  (N. 
Y.)  228.  But  facts  shown  in  pleading  need 
not  always  be  stated — Teague  v.  Lindsay 
(Tex.   Civ.  App.)    71   S.   W.   573. 

82.  Under  Code  Civ.  Proc.  N.  Y.  §  636 — 
Steele  v.  R.  M.  Gilmour  Mfg.  Co.,  77  App. 
Div.    (N.   Y.)    199. 

S3.     Barren  v.   Todd,   65   App.   Div.    (N.   Y.) 
22. 
84.     Rev.  St.  §  4303,  by  implication  clearly 


AFFIDAVIT,    SUFFICIENCY. 


245 


damage  must  be  fully  ascertainable  from  the  affidavit  and  papers.^^  It  must  show- 
that  plaintiff  is  entitled  to  recover  a  certain  sum  from  defendant,  which  is  done 
by  stating  that  a  certain  balance  was  due  plaintiff  after  taking  out  all  credits 
to  be  given  defendant,  and  that  defendant  has  agreed  to  pay  another  sum  certain 
for  goods  furnished.*^  The  affidavit  need  not  state  the  value  of  the  property, 
but  only  the  amount  of  damages,  where  the  attachment  is  in  aid  of  a  suit  to 
recover  damages  to  property.^^  Wliere  the  petition  in  an  action  on  a  note  shows 
that  payments  have  been  made  reducing  the  debt  to  the  sum  specified  in  the  affi- 
davit for  attachment,  those  facts  need  not  be  averred  in  the  affidavit.^*  An  affida- 
vit alleging  want  of  sufficient  personal  property  of  defendant  within  the  state  to 
satisfy  the  claim  is  necessary  to  a  sale  of  land.^^  When  against  residents  of  the 
state,  it  must,  in  California,  show  that  the  debt  was  not  secured,®" 

Averments  as  to  nonresidence. — The  affidavit  must  state  the  residence  of  both 
of  two  defendants,  or  that  plaintiff  was  unable  to  ascertain  the  residence  after 
diligence,  and  must  state  that  both  defendants  are  indebted  to  plaintiff.^^  An 
affidavit  showing  that  the  defendant  had  been  absent  from  the  state  for  a  long 
time,  and  had  expressed  himself  as  unwilling  to  return,  and  as  intending  to  go 
to  a  foreign  country,  sufficiently  shows  facts  authorizing  an  attachment  against  him 
as  a  nonresident,  and  sufficiently  shows  his  intent  to  leave  the  state  to  defraud  his 
creditors  or  avoid  service  of  process.®-  An  averment  that  defendant  has  removed 
to  another  state,  where  he  now  resides,  is  sufficient  as  to  nonresidence;®^  and  a 
statement  that  defendant  resides  without  the  state  at  a  certain  address,  which 
fact  is  shown  by  the  affidavit  of  another,  annexed,  sufficiently  authorizes  attach- 
ment against  a  nonresident.®*  If  other  grounds  exist,  it  seems  needless  to  aver 
nonresidence.®^ 

Amended  and  supplemental  afftdavits. — An  affidavit  defective  as  to  venue  may 
be  amended,  on  motion  nunc  pro  tunc,  on  a  showing  that  it  was  properly  verified 
before  an  officer  within  his  jurisdiction.®^  A  motion  before  hearing,  asking  an 
extension  of  time  wdthin  which  plaintiff  might  file  affidavits  and  proofs  to  amend 
those  already  filed,  because  of  newly-discovered  evidence  unknown  at  time  of  the 
original  affidavits,  is  a  motion  for  continuance  to  secure  further  evidence,  and  not 
for  purpose  of  amendment.®^ 

§  7.  Attachment  bond  or  undertaking;  terms. — Omission  of  a  description 
of  land  will  not  render  the  bond  void  if  the  description  may  be  obtained  from  the 
original  record  and  the  officer^s  return.®^  That  one  of  the  sureties  claims  owner- 
ship of  valuable  property  involved  in  litigation  will  not  justify  the  court  in  refusing 


requires  such  statement — Kerns  v.  McAulay 
(Idaho)  69  Pac.  539.  Plaintiff  must  aUege 
by  affidavit  his  right  to  a  certain  sum  over 
and  above  aU  counterclaims — Roth  v.  Amer- 
ican Piano  Mfg.  Co.,  35  Misc.  Rep.  (N.  Y.) 
509. 

85.  Attachment  based  on  claim  for  un- 
liquidated damages — Mallon  v.  Rothschild, 
38   Misc.    Rep.    (N.    Y.)    8. 

86.  Mere  allegation  of  breach  of  contract, 
and  its  cancellation  by  plaintiff  for  the 
breach,  is  insufficient — Roth  v.  American 
Piano  Mfg.   Co.,    35   Misc.   Rep.    (N.   Y.)    509. 

87.  Chitty  V.  Pennsylvania  R.  Co.,  62  S.  C. 
526. 

88.  Teague  v.  Lindsey  (Tex.  Civ.  App.)  71 
S.  W.  573. 

89.  Civ.  Code  Prae.  Ky.  §  230 — Webber  v. 
Tanner,  23  Ky.  Law  R.  1694. 

90.  Such  attachment  can  only  lie  under 
Code  Civ.  Proc.  Cal.  §  538,  providing  for  at- 


tachment of  unsecured  claims  against  resi- 
dents— Sparks  v.  Bell,  137  Cal.  415,  70  Pac. 
281. 

91.  Britton  v.  Gregg.  96  111.  App.   29. 

92.  Code  Civ.  Proc.  N.  Y.  §  636,  subd.  2, 
which  authorizes  attachments  against  non- 
residents— Doheny  v.  Worden,  75  App.  Div. 
(N.  Y.)  47;  Salt  Springs  Nat.  Bank  v.  Worden, 
Id. 

93.  Citizens'  State  Bank  v.  Porter  (Neb.) 
93   N.   W.    391. 

94.  Mallon  v.  Rothschild,  38  Misc.  Rep.  (N, 
Y.)  8. 

95.  As  that  the  debt  was  unsecured — 
Kerns  v.  McAulay   (Idaho)   69  Pac.  539. 

96.  Fisher  v.  Bloomberg,  74  App.  Div.  (N. 
Y.)    368. 

97.  Hood  V.  Fay,   15  S.  D.  84. 

98.  Requirement  of  description  by  Pub. 
St.  Mass.  c.  161,  §  128 — Berry  v,  Wasserman, 
179   Mass.    537. 


246 


ATTACHMENT. 


to  consider  such  property  in  estimating  the  value  of  the  sureties'  assets  on  a  plea 
in  abatement  for  insufficiency  of  sureties.^®  Since  it  cannot  be  known  that  the 
federal  bankruptcy  law  will  not  be  repealed  before  final  judgment  in  attachment, 
its  enactment  cannot  affect  the  reference  in  an  attachment  bond  to  local  laws  relat- 
ing to  special  judgments  against  bankrupts  by  enabling  the  attachment  plaintiff 
to  proceed  against  their  sureties.^ 

Liahilitics  on  bond. — If  the  bond  in  words  binds  the  "undersigned,"  all  sign- 
ers are  included  in  the  obligation.  Persons  not  named  in  the  body  of  the  bond, 
signing  it  as  "securities,"  bind  themselves  as  sureties.^  Sureties  are  not  liable  to 
defendant,  though  he  recovers  judgment,  if  no  levy  has  actually  been  made.' 
The  expenses  of  trial  on  vacation  of  an  attachment  may  be  recovered  of  sureties, 
and  they  are  liable  for  costs  on  an  unsuccessful  motion  to  vacate,  not  denied  on 
the  merits,  where  judgment  is  for  defendant  in  the  main  action.*  A  bond  of 
plaintiff  and  sureties,  providing  that  plaintiff  will  prosecute  the  suit,  and  that 
"they"  will  pay  all  damages  and  costs  rendered  against  "them"  for  wrongful  issu- 
ance, sufficiently  includes  the  plaintiff  and  sureties.^  The  measure  of  damages 
to  the  owner  is  the  costs  awarded  on  vacation  of  the  warrant,  and  interest  on  the 
value  of  the  property  for  the  time  it  was  held,  where  it  appears  that,  in  vacating 
the  attachment,  it  was  not  held  void  ab  initio.*  The  sureties  on  bond  conditioned 
that  sureties  should  pay  defendants  all  damages  they  or  either  of  them  may  sus- 
tain by  the  attachment  if  wrongful  are  liable  only  for  the  value  of  the  attached 
property,  less  the  proceeds  of  its  sale,  and  not  for  a  sum  erroneously  paid  to  plain- 
tiff.'^ Discontinuance  of  the  attachment  by  plaintiff  is  equivalent  to  a  final  deter- 
mination that  plaintiff  was  not  entitled  to  attachment,  and  gives  defendant  an 
immediate  right  of  action  on  the  attachment  bond.*  A  chattel  mortgagor  may  sue 
for  damages  on  the  attachment  bond  of  one  who  levied  on  his  interest  after  default, 
even  though  the  mortgagee  has  recovered  against  the  attachment  plaintiff  for  con- 
version of  the  property.*  An  action  will  lie  on  a  bond  given  the  sheriff  to  protect 
him  against  claimants  of  the  attached  property,  where  it  appears  that  judgment 
has  been  rendered  against  him  which  he  has  had  to  pay.^"*  Where  a  bond  in  attach- 
ment of  land  is  conditioned  to  pay  the  judgment  recovered  after  the  obligee  shall 
assert  title  by  writ  of  entry,  and  no  appraisal  of  the  land  is  had,  the  obligors  have 
waived  such  appraisal  and  are  bound  by  the  judgment.^^ 

Actions  on  lond}^ — A  declaration  in  a  suit  on  an  attachment  bond,  which 
fails  to  assert  that  plaintiff  has  first  established  his  title  by  writ  of  entry,  which 
was  required  by  the  bond,  is  liable  to  demurrer."     The  surety  cannot  show  in  de- 


99.  First  Nat.  Bank  v.  "Wallace  (Tex.  Civ. 
App.)    65   S.  W.   392. 

1.  Public  St.  Mass.  c.  171.  and  St.  Mass. 
1888,  c.  405,  §§  1,  2 — Berry  v.  Wasserman,  179 
Mass.    537. 

2.  Sufficiency  of  attachment  bond  given 
by  plaintiff  as  to  warranty  of  the  action, 
relation  of  the  parties,  and  obligation  as- 
sumed— First  Nat.  Bank  v.  Wallace  (Tex. 
Civ.    App.)    65    S.    W.    392. 

3.  Code  Civ.  Proc.  N.  Y.  provides  that 
the  undertaking  shall  secure  costs  and  dam- 
ages only  to  defendant  on  recovery  of  his 
judgment — Krall  v.  Howard,  37  Misc.  Rep. 
(N.  Y.)   832. 

4.  Tyng  v.  American  Surety  Co.,  69  App. 
Div.    (N.   Y.)    137. 

5.  First  Nat.  Bank  v.  "Wallace  (Tex.  Civ. 
App.)    65   S.   "W.    392. 


6.  Hartmann  v.  Burtis,  65  App.  Div.  (N. 
Y.)    481. 

7.  Files  V.  Davis,  119  Fed.  1002. 

8.  Straus  v.  Guilhou  (Sup.)  80  N.  Y.  Supp. 
180. 

9.  The  legal  title  to  the  property  still 
remains  in  the  mortgagor — Jencks  v.  Mur- 
phy,  15   S.   D.    425. 

10.  Tucker  v.   Smith    (Kan.)    68   Pac.   40. 

11.  Appraisal  of  attached  land  required 
by  Pub.  St.  Mass.  c.  161,  §  126 — Berry  v. 
"Wasserman,   179   Mass.    537. 

12.  Sufficiency  of  evidence  of  damages  to 
property  by  reason  of  attachment — "Wither- 
spoon  V.  Cross,  135  Cal.  96,  67  Pac.  18;  rea- 
sonableness of  verdict  on  conflicting  evi- 
dence as  to  value  of  land  levied  on,  and  of 
attorney's  services — Barnett  v.  Lucas,  27  Ind. 
App.   441. 

13.  Berry  v.  "Wasserman,  179  Mass.   537. 


WRIT    OR   WARRANT. 


247 


fense.of  a  suit  on  the  bond  that  there  was  a  chattel  mortgage  on  the  property.^* 
Where  an  attachment  against  nonresidents  was  vacated,  and  the  appeal  from  the 
vacating  order  was  abandoned,  in  a  suit  b}'  local  attorneys  on  the  attachment  bond, 
as  assignees  of  defendants,  to  recover  for  their  services,  the  surety  could  not  set 
up  that  the  foreign  attorneys  of  the  attachment  plaintiff  were  negligent  as  to  service 
of  summons,  so  that  the  attachment  was  vacated,  nor  allege  that  the  appeal  was 
still  pending,  where  they  alleged  no  stay  of  proceedings.^^  The  burden  is  on  de- 
fendant to  show  the  sufficiency  of  the  sureties.^®  The  levy  of  an  attachment  upon 
his  property  for  which  the  bond  was  executed  must  be  sho^vn  by  the  obligee. ^^ 

Ji'dgment  in  the  original  action  may  be  rendered  in  some  jurisdictions.^^  On 
discontinuance  of  an  attachment  by  plaintiff,  in  which  defendant  appeared  specially 
to  move  for  vacation  of  the  service  and  warrant,  judgment  cannot  be  entered  against 
plaintiff  for  defendant's  costs  and  damages.^^  Judgment  for  the  amount  of  the 
bond  cannot  be  rendered  either  in  a  suit  or  by  rule  without  notice  of  the  proceed- 
ings.^" 

§  8.  The  ivrit  or  warrant. — In  Wisconsin  the  affidavit  stating  statutory 
grounds  of  attachment  must  be  attached  to  the  writ.-^  An  attachment  should  issue 
in  amount  not  exceeding  the  sum  stated  in  the  complaint,  especially  where  it 
appeared  that  such  amount  included  damages  in  two  causes  of  action,  as  to  one 
of  which  plaintiff  was  not  entitled  to  attachment.^^  The  writ  should  be  confined 
to  the  demand  in  that  cause  of  action  as  to  which  attachment  is  authorized. ^^ 
The  remedy  is  to  reduce,  and  not  to  vacate,  a  writ  that  exceeds  the  amount  of 
the  demand.^*  The  writ  may  call  defendants  by  their  reputed  names  or  sur- 
names, and  joint  defendants  by  their  separate  or  partnership  names,  or  by  such 
names  as  they  are  usually  known. -^  That  defendant's  name  was  given  as  "Kava- 
rik,"  when  it  was  really  "Kovarik,"  will  not  render  the  writ  void  where  fraud  or 
bad  faith  is  not  shown,  and  amendment  to  correct  the  name  will  not  work  disso- 
lution of  the  attachment  already  levied.-^  A  simple  mistake  in  a  writ  in  com- 
puting the  amount  due  is  immaterial  where  the  petition  shows  the  date  and 
amount  of  judgment  sued  on,  and  the  rate  of  interest.^'^  A  defect  of  omission  to 
state  the  cause  of  action  is  not  waived  by  default,  but  may  be  raised  on  appeal.^^ 
A  warrant  may  be  amended  nunc  pro  tunc  for  failure  to  state  the  ground  of 
attachment  as  against  one  acquiring  an  interest  in  the  attached  property  after 
issuance  of  the  defective  warrant,  as  well  as  against  the  original  owner.^''  Aban- 
donment of  an  attachment  merely  because  defendant  is  not  rightly  named  therein 
will  not  affect  issuance  of  a  second  writ  in  good  faith,  though  the  property  seized 
under  the  first  attachment  is  not  returned  before  the  second  is  made.^° 


i4.  Hartmann  v.  Hoffman,  65  App.  Div. 
(N.  T.)    443. 

15.  Powell  V.  Bursky,  39  Misc.  Rep.  (N. 
Y.)    533. 

16.  First  Nat.  Bank  v.  Wallace  (Tex.  Civ. 
App.)    65  S.  W.   392. 

17.  Barnett  v.  Lucas,  27  Ind.  App.  441. 

18.  Civ.  Code  Prac.  §  232 — Deposit  Bank 
of  Frankfort  v.  Thomason  (App.)  23  Ky. 
Law  R.    1957. 

19.  Straus  v.  Guilhou  (Sup.)  80  N.  T. 
Supp.    180. 

30.  Thompson  v.  Arnett  (App.)  23  Ky.  Law 
R.   1082. 

21.  The  grounds  are  set  out  in  Rev.  St. 
1898,  §  2731— Gallun  v.  Weil  (Wis.)  92  N. 
W.    1091. 

22.  The  word  "demand,"  used  in  Code 
Civ.  Proc.  §  538,  refers  to  the  amount  stated 


in  the  afHHavit  as  the  indebtedness  owing 
from  defendant — Baldwin  v.  Napa  &  S.  Wine 
Co.,    137    Cal.    646,    70    Pac.    732. 

23.  The  words  "demand  in  conformity 
with  the  complaint,"  in  Code  Civ.  Proc.  § 
540,  construed  in  connection  with  sections 
427,  537 — Baldwin  v.  Napa  &  S.  Wine  Co., 
137   Cal.    646,    70   Pac.    732. 

24.  Cohen  v.  Walker,  38  Misc.  Rep.  (N. 
Y.)    114,   citingr  35  Misc.   Rep.   509. 

25.  Nester's  Estate  v.  Carney  Bros.  Co., 
98  111.  App.  630. 

26.  Norris    v.    Anderson,    181    Mass.    308. 

27.  First  Nat.  Bank  v.  Wallace  (Tex.  Civ. 
App.)   65  S.  W.  392. 

28.  Cline   v.    Patterson,    191    111.    246. 

29.  Code  Civ.  Proc.  N.  Y.  §§  641,  723 — King 
V.  King-,  68  App.  Div.   (N.  Y.)    189. 

30.  Brady   v.    Royce,    180   Mass.    553. 


248 


ATTACHMENT. 


An  alias  writ  of  special  execution  under  the  Illinois  practice  cannot  issue  un- 
der the  statutes.^^  In  equitable  attachments  under  the  Ehode  Island  statute  the 
affidavit  need  not  be  attached  to  the  writ,  though  the  remedy  is  mesne  process; 
because  the  affidavit  must  first  be  submitted  to  the  court;  and  it  is  immaterial  that 
it  calls  on  attachment  defendants  to  answer  the  bill.^- 

§  9.  The  levy  or  seizure;  indemnifying  bonds. — Levying  creditors  should 
be  allowed  to  take  and  retain  only  enough  property  to  meet  their  debts.^^  The 
officer  may  take  a  reasonable  time  to  pack  the  goods  and  remove  them  from  the 
premises.^*  A  levy  is  not  sufficient  where  it  appears  that  it  was  not  made  in  the 
presence  of  any  witness.^^  The  validity  of  a  levy  on  mortgaged  chattels  against 
a  mortgage  subsequently  executed  is  not  affected  by  payment  of  security  required 
to  be  given  the  mortgagee.^^ 

Levy  on  dehts  or  clioses. — Where  an  attachment  judgment  for  money  only  was 
recovered  without  personal  service  within  the  state,  acceptance  by  the  officer  of 
a  certificate  of  the  mortgagor  as  to  his  indebtedness  in  the  sum  therein  named, 
instead  of  taking  into  custody  a  bond  and  mortgage  due  defendant,  was  an  insuffi- 
cient levy.  The  bond  collaterally  secured  by  the  mortgage  was  insufficiently  seized 
by  the  delivery  of  a  certified  copy  of  the  warrant  with  notice  to  the  debtor.^" 

Notice  of  levy. — An  attachment  sale  of  realty  cannot  be  upheld  where  it  ap- 
pears that  the  officer  did  not  give  notice  of  the  levy  to  the  tenant  in  possession, 
nor  recite  such  notice  in  his  return.^^  Service  of  a  paper  merely  purporting  to 
be  a  copy  of  the  attachment  upon  one  claimed  to  be  owing  defendant  is  insufficient, 
and  failure  to  serve  a  certified  copy  of  the  attachment  is  not  a  mere  irregularity, 
but  an  error  going  to  the  jurisdiction.^^  Serving  notice  of  a  levy  on  land  as  late 
as  the  day  preceding  the  levy  Trill  not  render  it  void,  though  it  should  be  after 
levy  is  made.*°  A  notice  of  an  attachment  of  lands  held  by  devisees  under  a  will, 
served  on  the  "agent  for  the  heirs  and  legatees,"  is  sufficient.*^ 

An  equitable  attachment  on  the  assets  of  a  partnership  requires  actual  or  con- 
structive notice  to  both  partners  before  decree  as  to  the  property,  but  should  not 
be  abated,  after  service  on  one  partner,  for  failure  to  take  an  order  of  publica- 
tion against  the  other. *^ 

That  some  of  the  averments  in  a  petition,  in  an  action  on  a  bond  given  a 
sheriff  to  protect  him  against  claimants  of  attached  property,  are  indefinite  and 
informal,  will  not  prevent  recovery  where  liability  is  clearly  shown. *^ 

§  10.  Return  to  the  writ. — Jjeyj  against  property  of  a  nonresident  in  one 
county  cannot  be  returned  in  another  county  so  as  to  give  jurisdiction  there**     A 


31.  Attachment  Act  in.  §  26  (Kurd's  Rev. 
St.  1899,  p.  ITS),  does  not  provide  for  an 
alias  attachment  writ,  nor  is  the  alias  writ 
of  special  execution  authorized  by  Attach- 
ment Act,  §  35  (Hurd's  Rev.  St.  1899,  p.  ISO), 
authorizing  a  special  execution — Keeley 
Brewing  Co.  v.  Carr,  19S  111.  492,  affirming 
judgment,  94  111.  App.  225;  111.  Cyc.  Dig.  vol. 
1,  p.   751. 

32.  Under  Gen.  Laws,  c.  252,  §  27 — Ladd 
V.  Franklin  Loan  &  Trust  Co.  (R.  I.)  53 
Atl.   59. 

33.  A  levy  for  $76.74  and  costs  on  prop- 
erty worth  $1,225  is  excessive — Anderson  v. 
Heile  (App.)   23  Ky.  Law  R.  1115. 

34     Ramsey  v.   Burns    (Mont.)    69  Pac.   711. 

35.  Under  Code  Neb.  §  205 — Citizens'  State 
Bank  v.  Porter   (Neta.)    93  N.  W.  391. 

36.  Code  Iowa,  §  3979— Tollerton  &  Stet- 
son Co.  V.  Skelton   (Iowa)   92  N.  yv.  651. 

37.  Under  Code  Civ.  Proc.  §  649,  providing 


for  levy  on  personal  property  capable  of 
manual  delivery — Fiske  v.  Parke.  39  Misc. 
Rep.  (N.  Y.)  157;  order  affirmed,  77  App. 
Div.    (N.   T.)    327. 

38.  Rev.  St.  Mo.  1889,  §  543— Walter  v. 
Scofield,   167  Mo.   537. 

39.  General  rules  of  practice  No.  37,  Code 
Civ.  Proc. — Weil  v.  Gallun.  75  ..pp.  Div.  (N. 
Y.)    439. 

40.  Kilham  v.  Western  Bank  &  Safe  De- 
posit Co.  (Colo.)  70  Pac.  409. 

41.  Kilham  v.  V\'estern  Bank  &  Safe  De- 
posit Co.   (Colo.)  70  Pac.  409. 

43.  Time  for  maturity  of  the  suit  should 
be  given  plaintiff  fixed  as  to  the  absent 
partner — Brown  v.  Gorsuch,  50  W.  Va.  514. 

43.  Tucker  v.   Smith    (Kan.)    68   Pac.    40. 

44.  Code  Ala.  §§  526,  524,  subd.  4,  and  § 
4205,  providing  for  venue  of  civil  actions — 
Kress   V.    Porter,    132    Ala.    577. 


CUSTODY,  SALE  AND  RELEASE. 


249 


return  is  sufficient  to  give  the  officer  a  lien,  though  it  appears  that  he  included 
more  property  than  defendant  owned  at  the  place  of  attachment.*^  If  it  sets  out 
receipt  of  a  notice  to  remove  attached  property,  and  recites  the  fact  of  removal, 
it  is  prima  facie  sufficient  to  show  removal.*"  A  return  showing  attachment  of 
a  certain  number  of  sacks  of  potatoes  is  not  conclusive  as  to  the  number  of  bushels 
attached.*^  Eeturn  of  a  writ  reciting  a  levy  on  land  and  service  on  a  Chinaman 
as  sole  occupant  will  not  render  a  judgment  of  sale  void  because  of  failure  to  give 
the  name  of  the  Chinaman,  which  was  unknown.*^  The  court  may  allow  the 
officer  to  amend  his  return  after  verdict,  especially  as  to  matters  occurring  after 
entry  of  the  writ.*'' 

§  11.  Custody,  sale,  redelivery,  or  release  of  attached  property. — The  prop- 
erty may  be  left  with  plaintifE  as  bailee  by  the  officer  without  endangering  the 
lien.^°  The  officer  cannot  recover  fees  for  keeping  property  attached  for  more 
than  the  time  provided  by  law,  though  he  has  an  oral  agreement  with  defendant 
for  such  fees.^^ 

Sale  and  confirmation  or  vacation. — Though  by  law  the  officer  may  sell  perish- 
able property,  an  order  of  the  court  is  necessary  unless  it  is  subject  to  speedy 
decay.  ^-  Wliere  land  was  attached  before  death  of  its  owner,  and  after  his  death 
the  complaint  was  amended  to  ask  foreclosure  of  the  lien,  but  not  waiving  recourse 
against  other  property,  a  foreclosure  by  sale  was  unauthorized,  but  the  personal 
judgment  against  the  estate  could  be  given  preference  in  the  proceeds  of  a  sale  of 
the  attached  property  if  sold  by  the  executor  to  pay  debts.^'  The  validity  of  the 
attachment  because  of  death  of  defendant  before  service,  and  service  on  his  ex- 
ecutor, cannot  be  questioned  on  a  motion  to  confirm  the  sale;  nor  can  it  be  urged 
that  the  service  was  insufficient  to  give  jurisdiction,  where  the  question  was  raised 
by  an  amended  complaint,  and  not  controverted.  A  motion  to  vacate  a  judgment 
of  sale,  in  so  far  as  it  applies  to  lands  because  the  attachment  is  invalid,  raises 
the  question  of  the  validity  of  the  judgment,  and  is  not  merely  a  motion  to  set 
aside  the  sale.^*  A  motion  by  a  junior  attaching  plaintiff  to  set  aside  a  sale  under 
the  senior  attachment  for  inadequacy  of  price  will  be  denied  where  it  appears  that 
sufficient  property  remains  unsold  to  satisfy  his  claim.^^  The  court  cannot  order 
funds  in  the  hands  of  levying  officers  as  proceeds  from  the  sale  to  be  paid  to  plain- 
tiff before  final  judgment.^"  A  second  attaching  creditor  is  not  entitled  to  notice 
of  an  application  for  an  order  from  the  judge  in  vacation  to  direct  the  sheriff,  who 
has  sold  the  goods,  to  turn  over  the  proceeds  to  his  successor  in  office;  and  the  law 
providing  for  appointment  of  a  receiver  cannot  apply  where  the  officer  has  sold 
the  goods,  and,  pursuant  to  the  order,  turned  the  money  over  to  his  successor.^'^ 


45. 
46. 
47. 

916. 

48. 
739. 

49. 

50. 

51. 


Stearns  v.   Silsby,   74  Vt.   68. 

Riley  v.   Tolman,   181   Mass.   335. 

La    Follett    v.    Mitchell    (Or.)    69    Pac. 

"White    V.    Ladd.    41    Or.    324,    68    Pac. 


Harding-  v.   Riley.   181   Mass.    334. 

Gallun   V.   Weil    (Wis.)    92  N.   W.    1091. 

Under  Pub.  St.  Mass.  c.  161.  §  42,  pro- 
viding- for  appointment  of  a  keeper  of  at- 
tached personalty,  and  chapter  199,  §  6, 
limiting  the  compensation  of  the  officer  or 
keeper  to  ten  days,  unless  on  -written  con- 
sent of  parties  or  special  order  of  court — 
Leach  v.  Eastman  (Mass.)  65  N.  E.  60;  East- 
man V.  Leach,  Id. 

52.  Code  Civ.  Proc.  Cal.  §§  547.  548 — 
Witherspoon  v.  Cross,  135  Cal.  96,  67  Pac. 
18. 


53.  Under  Rev.  St.  Ariz.  1887,  pars.  1117, 
1119.  and  1176,  providing  for  presentation 
of  claims  against  an  estate,  and  payment 
of  secured  claims  by  the  executor  on  sale 
of  the  property  covered  by  the  lien — Wart- 
man   V.    Pecka    (Ariz.)    68    Pac.    534. 

54.  White  V.  Ladd,  41  Or.  324,  68  Pac.  739. 
r>a.     Levi  V.  Goldberg,  76  App»  Div.   (N.  Y.) 

210. 

56.  Under  Civ.  Code  Ga.  §§  4556,  4558,  5463 
— Lambert  Hoisting  Engine  Co.  v.  Bray 
(Ga.)    43    S.    E.    371. 

57.  Authority  is  not  given  by  Rev.  St. 
1899,  §  393,  giving  the  court  custody  and  dis- 
position of  proceeds  of  attached  property; 
Rev.  St.  1899,  §§  395,  399,  provide  for  ap- 
pointment of  receiver  in  ejectment — Tennett- 
Strippling  Shoe  Co.  v.  Magill,  91  Mo.  App. 
570. 


250 


ATTACHMENi. 


'Wrongful  taking  from  officer. — The  measure  of  damages  for  wrongful  taking 
of  property  from  a  sheriff  holding  it  under  a  valid  writ  is  its  value  when  taken^ 
with  interest,  not  exceeding  enough  to  satisfy  the  writ,  considering  the  value  of 
the  goods  when  taken,  in  the  situation  in  which  they  were  found,  with  a  view  to 
the  manner  in  which  the  officer  might  lawfully  have  disposed  of  them.  Evidence 
of  the  value  of  goods  attached  in  the  ordinary  market  may  be  heard.^* 

§  12.  Forthcoming  bonds  and  receipts. — The  surety  on  a  bond  for  discharge 
of  attached  property  is  liable  for  failure  of  its  return,  though  judgment  is  recov- 
ered only  against  a  defendant  who  does  not  own  the  property.^^  The  sufficiency 
of  grounds  of  an  attachment,  or  the  liability  of  the  property  thereto,  cannot  be 
determined  in  an  action  to  enforce  a  bond  for  discharge  of  the  attachment.®" 

Claimant's  honds.^^ — Execution  of  a  claimant's  bond,  and  his  receipt  of  the 
property,  will  not  discharge  the  lien  of  the  levy,  and  he  must  become  a  party  to 
the  action.®^  After  sale  of  property  delivered  on  a  claimant's  bond,  it  cannot  be 
objected  that  the  bond  did  not  secure  a  joint  owner  of  the  debtor.®^  After  sur- 
render of  the  property  to  the  claimant  under  his  bond,  terms  in  the  bond  in  ex- 
cess of  the  statutory  requirement  will  be  treated  as  surplusage.®*  Death  of  a 
surety  will  not  require  a  new  bond  by  a  claimant  who  had  received  the  property 
from  the  sheriff.®^  A  claimant's  bond  is  not  broken  until  a  judgment  subjecting 
the  property  has  been  rendered  which  the  debtor  has  failed  to  satisfy,  and  until 
then  no  action  can  be  brought.®®  In  an  action  on  a  bond  conditioned  to  require 
the  claimant  to  establish  ownership,  the  burden  is  on  the  defendant  to  show 
ownership.®^  A  bond  payable  to  the  deputy  sheriff  who  is  the  "lev\'ing  officer" 
may  be  enforced  by  him.®^  Issues  raised  by  a  claimant  in  intervention  cannot 
be  set  up  in  an  action  on  the  bond  after  judgment  in  the  intervention  finding  the 
property  liable.®^  An  allegation  in  an  action  on  claimant's  bond  showing  a  lia- 
%bility  of  the  obligor  to  pay  the  value  of  the  property  in  a  certain  sum  need  not 
be  proved,  where  it  is  not  denied.'^** 

§  13.  Lien  or  other  consequences  of  levy.''''- — An  attachment  rightfully  issued 
and  levied  creates  a  lien  for  plaintiff  to  the  amount  of  his  claim  and  costs,  whether 
in  aid  to  an  action  or  as  a  special  proceeding.'^^  A  judgment  of  sale  was  not  con- 
clusive as  to  the  validity  of  the  seizure  of  part  of  the  attached  property,  thougli 
attachment  of  the  remainder  was  good,  where  defendant  died  before  service,  and 
it  was  made  on  his  executor.'^'  A  mere  clerical  mistake  of  the  clerk  in  recording 
an  attachment  lien  by  inserting  the  name  of  the  wrong  county  in  the  title  of  the 


58.  Merchants'  Nat.  Bank  v.  McDonald 
(Neb.)   88   N.  "W.   492;  Id.,  89  N.  W.   770. 

59.  Code  Civ.  Proc.  §§  554.  555,  provide 
that  the  bond  should  be  conditioned  to  pay 
the  value  of  the  property  in  case  the  plain- 
tiff recover  judgment — McCormlck  v.  Na- 
tional Surety  Co.,  134  Cal.  510,  66  Pac.  741. 

60.  Civ.  Code  Prac.  §  221 — Thompson  v. 
Arnett   (App.)   23  Ky.  Law  R.  1082. 

61.  Sufficiency  of  evidence,  in  action  on 
a  claimant's  bond,  to  show  that  the  obligor 
was  not  the  owner  of  the  attached  prop- 
erty— Goldstein  v.  Goldman,  74  App.  Div. 
(N.   T.)    356. 

62.  Civ.  Code  Prac.  §§  29,  214,  providing- 
for  intervention  in  attachment  suits — De- 
posit Bank  of  Frankfort  v.  Thomason  (App.) 
23    Ky.   Law   R.   1957. 

63.  Deposit  Bank  of  Frankfort  v.  Thom- 
ason   (App.)    23   Ky.    Law   R.    1957. 

64.  Under  Civ.  Code  Prac.  §§  214,   682,  pro- 


viding for  bond  of  a  claimant  in  attachment, 
and  the  filing  of  a  new  bond  ■where  the  first 
is  insufficient — Deposit  Bank  of  Frankfort 
v.   Thomason   (App.)    23  Ky.   Law  R.   1957. 

65.  Larsen  v.  Murray  (Tex.  Civ.  App.) 
68    S.    W.    295. 

66.  Deposit  Bank  of  Frankfort  v.  Thom- 
ason    (App.)     23    Ky.    Law    R.     1957. 

67.  Code  Civ.  Proc.  §  2912 — Goldstein  v. 
Goldman,    74   App.    Div.    (N.    Y.)    356. 

68.  Civ.  Code,  §§  4571,  4572 — Thompson  v. 
O'Connor,  115  Ga.  120. 

69.  Thompson  v.   O'Connor,   115  Ga.    120. 

70.  Goldstein  v.  Goldman,  74  App.  Div. 
(N.   T.)    356. 

71.  Effect  on  lien  of  leaving  property 
with  plaintiff,  see  ante,  §  11. 

73.  Rhodes  v.  Samuels  (Neb.)  93  N.  W. 
148. 

73.  Jurisdiction  depended  on  the  validity 
of  the  attachment — White  v.  Ladd,  41  Or. 
324.    68   Pac.    739. 


PRIORITIES. 


251 


cause  vnW  not  affect  the  lien.^^  Default  in  attachment  by  creditors  who  knew 
of  a  mortgage  covering  the  property  gives  the  creditors  no  property  rights  of  which 
they  were  deprived  without  due  process  of  law  by  passage  of  a  law,  pending  the 
attachment,  validating  the  record  of  the  mortgage.'^''  An  entry  of  judgment  by 
agreement  in  favor  of  defendant  in  attachment  on  lands,  including  satisfaction  of 
claims  not  existing  at  time  of  attachment,  renders  the  lien  void  as  against  pur- 
chasers of  land  from  defendant  after  commencement  of  the  suit."^ 

§  14.  Conflicting  levies^  liens,  and  creditors;  priorities.'''^ — Title  under  at- 
tachment sale  does  not  necessarily  prevail  over  a  prior  unrecorded  debt.'^®  An 
unrecorded  assignment  of  a  title  bond  is  valid  against  a  subsequent  attachment 
for  debts  of  the  assignor.'^^  Attachment  of  a  bank  deposit  precedes  an  impre- 
sented  check  for  a  part  thereof.***  An  unindorsed  bill  of  lading  delivered  to  a 
creditor  of  the  owner  of  goods  shipped  with  a  draft  on  the  consignee  for  the  pro- 
ceeds gave  the  creditor  a  lien  superior  to  that  of  a  subsequent  attachment.*^  The 
court  has  sufficient  chancery  power  to  postpone  one  attachment  for  another  for  a 
sound  equitable  reason.*^  On  attachment  in  a  suit  against  an  insolvent  foreign 
corporation,  a  preference,  based  on  the  view  of  the  law  held  by  the  courts  in  the 
state  of  the  domicile  of  the  corporation,  and  not  on  its  statutes,  cannot  be  allowed.*' 

Priorities  between  attachments  and  mortgages.^* — Notice  to  the  attaching  cred- 
itor, by  his  attorney  and  agent,  that  another  creditor  holds  a  chattel  mortgage  on 
the  property  seized  prior  to  levy,  puts  him  on  inquiry;  but  record  of  a  chattel 
mortgage,  executed  in  one  state  on  property  in  another,  in  the  state  of  execution, 
is  not  notice  to  attaching  creditors  in  the  state  where  the  property  is  situate.*^ 
Consent  by  a  chattel  mortgagee  that  the  surety  on  the  mortgagor's  forthcoming 
bond  in  attachment  should  have  a  lien  prior  to  his  own  in  case  he  became  liable 
will  not  give  the  attachment  priority  over  the  mortgage.*®  The  insufficiency  of 
a  chattel  mortgage  to  give  notice  to  a  subsequent  attaching  creditor  will  not  pre- 
vent notice  where  such  creditor  was  informed  of  the  existence  of  the  mortgage, 
before  levy,  by  his  own  attorney,  who  had  learned  of  the  mortgage  from  the  mort- 
gagor and  the  records.*^  The  burden  is  on  attaching  creditors  claiming  priority 
over  a  mortgage  on  the  ground  that  fraudulent  representations  of  the  mortgagee 
as  to  the  financial  condition  of  the  mortgagee  induced  them  to  give  credit  to  him, 
and,  if  evidence  of  fraud  is  not  produced,  a  verdict  for  the  mortgagee  should  be 
directed.**  An  attachment  lien  on  property  of  a  son  is  prior  to  a  former  security 
given  by  the  son  for  his  father's  debt,  which  the  creditor  failed  to  enforce,  while 
allowing  the  son  to  continue  business  and  to  obtain  credit  from  the  attachment 
plaintiff,  and  where  it  appears  that  the  father  induced  the  withdrawal  of  the  at- 


74.  Under  HiU's  Ann.  Laws,  Or.  §  151.  the 
lien  depends  on  the  date  of  the  filing  of  the 
certificate — Schlosser  v.  Beemer,  40  Or.  412, 
67  Pac.    299. 

75.  McFaddin  v.  Evans-Snider-Biiel  Co., 
185  U.  S.  505,  46  Lawy.  Ed.  1012;  affirming 
judgment,  105  Fed.  293. 

76.  Oconto  Co.  V.  Esson,  112  Wis.  89; 
Wright  V.  Same,  Id.;  Bellew  v.  Same,  Id. 

77.  Confirmation  of  sale  as  affecting 
rights   and   priorities,    see   ante,    §   11. 

78.  Rohrer  v.  Snyder  (Wash.)  69  Pac. 
748. 

79.  The  bond  was  recorded  as  authorized 
by  Code,  §  2459 — Macrae  v.  Goodbar,  80  Miss. 
315. 

80.  The  check  at  time  of  delivery  does 
not  operate   aa  an  equitable  assignment  pro 


tanto — Donohoe-Kelly  Banking  Co.  v.  South- 
ern  Pac.   Co.    (Cal.)    71   Pac.   93. 

81.  Clary  v.  Tyson  (Mo.  App.)  71  S.  W. 
710. 

82.  Freedman  v.  Holberg,  89  Mo.  App. 
340. 

83.  Lamb   v.    Russel    (Miss.)    32. So.    916. 

84.  Sufficiency  of  fraudulent  statements 
by  chattel  mortgagee  to  attaching  creditors 
to  give  the  latter  priority  over  the  mort- 
gage— Chittenden  v.  Charles  H.  Sieg  Mfg. 
Co.    (Colo.   App.)    66   Pac.    1077. 

85.  Aultman  &  Taylor  Mach.  Co.  v.  Ken- 
nedy, 114  Iowa,   444. 

86.  Caumiser  v.  Humpich  (App.)  23  Ky. 
Law  R.   1133. 

87.  Frlck   v.    Fritz,    115    Iowa,    438. 

88.  Chittenden  v.  Chas.  H.  Sieg  Mfg.  Co. 
(Colo.    App.)    66   Pac.    1077. 


252 


ATTACHMENT. 


tachment  by  fraud,  so  as  to  enable  the  former  creditor  to  obtain  a  preference  by 
entering  up  a  judgment.*^ 

Surrender  of  attached  property  to  a  receiver  under  a  stipulation  approved  by 
the  court  that  it  shall  be  -without  prejudice  will  not  terminate  the  attachment,  but 
the  priority  of  lien  is  retained.®"  Creditors  who  have  turned  over  attached  prop- 
erty to  a  receiver  appointed  in  a  suit  to  foreclose  a  mortgage  thereon,  imder  a  stipu- 
lation holding  part  of  the  gross  proceeds  subject  to  the  attachment,  can  claim 
only  that  portion  after  payment  of  necessary  expenses  of  sale,  and  cannot  be  charged 
with  a  proportion  of  taxes,  insurance,  and  expenses  from  the  claim  of  the  re- 
eeiver.^^  Subsequent  appointment  of  a  receiver,  or  his  subsequent  taking  posses- 
sion of  property  within  the  state  of  his  appointment,  will  not  aSect  an  attachment 
of  the  property  already  made.®^ 

Priority  between  attachments  and  assignments  for  benefit  of  creditors. — Sub- 
sequent attachments  of  land  fraudulently  conveyed  are  prior  to  the  title  of  assignees, 
imder  a  general  assignment.®^  On  a  feigned  issue  to  determine  the  validity  of  an 
assignment  of  stock  prior  to  an  attachment,  the  attaching  creditors  may  show  that 
in  a  prior  attachment,  dissolved  for  defect  in  the  bond,  the  claimant  under  the 
assignment  had  entered  appearance  for  the  assignor  to  claim  for  him  benefit  of 
the  exemption  laws,  as  showing  the  invalidity  of  the  assignment.®*  A  sale  under 
execution  in  attachment  proceedings,  and  payment  proceeds  to  plaintiff  after  insti- 
tution of  claim  proceedings  by  an  assignee  for  benefit  of  creditors,  will  not  pre- 
vent plaintiff  from  contesting  the  validity  of  the  claim.  The  debtor's  act  in  post- 
poning an  assignment  for  creditors  until  after  a  lev}'  is  not  chargeable  to  levying 
creditors  who  did  not  know  or  participate  in  his  intent,  and  the  general  creditors 
must  prove  affirmatively  that  there  was  such  participation;  hence  the  fact  tlM 
they  afterwards  took  part  in  a  scheme  to  start  him  in  business,  and  helped  him 
to  purchase  the  attached  property  for  that  purpose,  will  not  invalidate  their  at- 
tachment as  against  the  assignment  for  benefit  of  creditors.®^ 

Effect  of  bankruptcy  proceedings. — An  adjudication  in  bankruptcy  dissolves  all 
attachments  issued  during  four  months  preceding  the  petition,  unless  preserved 
by  an  order  of  court.®''  The  attaching  creditor  of  an  alleged  bankrupt  has  a  lien, 
until  the  attachment  is  vacated  or  rendered  void  by  the  adjudication  in  bank- 
ruptc}^  which  is  a  preference.®'^  The  bankruptcy  act  does  not  invalidate 
the  lien  of  an  attachment  obtained  more  than  four  months  before  the  bank- 
ruptcy proceedings,  though  the  lien  depends  on  a  judgment  obtained  within  four 
months.  That  the  service  was  made  prior  to  that  time  is  sufficient.®^  An  attach- 
ment against  property  of  a  banlo-upt  exempt  from  the  bankruptcy  proceedings,  and 
over  which  the  court  therein  has  refused  to  take  jurisdiction,  will  not  be  dis- 
charged, though  issued  within  four  months  preceding  the  petition.®®  A  judgment 
against  a  garnishee  in  an  action  against  the  bankrupt  within  four  months  before 


89.  Leonard  v.   Bowne,   63  N.  J.  Eq.   488. 

90.  Central  Trust  Co.  v.  Worcester  Cycle 
Mfg.  Co.,   114   Fed.    659. 

91.  American  Surety  Co.  v.  "Worcester 
Cycle  Mfg.   Co.,   114   Fed.    658. 

92.  Woodhull  V.  Farmers'  Trust  Co.  (N. 
D.)    90  N.  W.   795. 

93.  Watson  V.  Bonfils  (C.  C.  A.)  116  Fed. 
157. 

94.  McConnel  v.  Dilworth,  18  Pa.  Super. 
Ct.    114. 

95.  Evidence  of  such  participation  Tvill 
not  prevail  against  direct  testimony  of  the 
attaching  creditors  that  no  collusion  existed 


between  them  and  the  bankrupt — H.  B.  Claf- 
lin  Co.  V.  Muscogee  Mfg.  Co.,   127  Ala.  376. 

96.  Bankruptcy  Act  1898,  §  67 — Watschke 
V.    Thompson,    85    Minn.    105. 

97.  He  cannot  maintain  a  petition  In  in- 
voluntary bankruptcy — In  re  Scherkein,  113 
Fed.    421. 

9S.  Under  Bankruptcy  Act  1898,  §  67f, 
providing  that  attachments  issuing  within 
four  months  preceding  the  filing  of  the  peti- 
tion are  void — In  re  Beaver  Coal  Co..  110 
Fed.    630. 

99.  The  attachment  is  not  void  under 
Bankruptcy  Act  U.  S.  §  67f — Powers  Dry 
Goods  Co.  v.  Nelson,  10  N.  D.   580. 


ENFORCEMENT    AND    DISSOLUTION. 


253 


the  filing  of  the  petition  is  void,  whether  questioned  directly  or  collaterally.^  The 
trustee  in  bankruptcy  may  apply  to  the  state  court  for  an  order  discharging  pre- 
vious attachments,  against  the  bankrupt's  property,  void  under  the  bankruptcy 
law.  His  laches  in  moving  for  dissolution  will  not  render  the  attachment  a  prior 
lien;  it  need  only  appear,  in  addition,  that  the  bankrupt  was  insolvent  when  the 
attachment  issued.^  On  annulment  of  the  lien  of  an  attachment  in  a  state  court 
by  an  adjudication  in  bankruptcy,  the  court  loses  jurisdiction  of  the  property, 
and  cannot  affect  the  jurisdiction.^  Discharge  of  an  attachment  against  prop- 
erty of  a  bankrupt  by  discharge  of  the  debtor  will  not  prevent  enforcement 
of  the  lien  against  the  property  by  judgment.*  A  referee  in  bankruptcy  may 
properly  proceed,  on  application  of  the  trustee,  to  determine  the  validity  and 
amount  of  an  attachment  lien  on  the  property  held  by  a  party  to  the  proceed- 
ings, though  such  party  gave  him  notice  that  he  had  released  the  lien;  and  his 
decision  is  conclusive  as  to  the  creditor's  interest  in  property  covered  by  the  lien, 
but  not  as  regards  other  property.  A  judgment  for  the  amount  claimed  in  the 
attachment  will  stand  against  a  finding  of  the  referee  for  less  than  was  set  up 
in  an  insufficient  answer  in  bar,  where  the  record  of  the  bankruptcy  was  not  intro- 
duced on  the  trial,  and  the  attachment  defendant  did  not  claim  benefit  of  the 
referee's  finding.^ 

§  15.  Enforcement  and  dissolution,  discharge,  vacation,  or  abandonment  of 
attachment.  A.  Validity  and  grounds  for  setting  aside. — An  attachment  in  aid 
must  abide  the  result  of  the  suit,  since  the  existence  of  the  ground  of  action  can- 
not be  determined  in  a  proceeding  to  enforce  the  provisional  remedy.^  Service  on 
a  nonresident  within  the  county  of  issuance  will  not  abate  the  attachment,  nor 
will  grounds  for  demurrer  to  a  bill  in  equity,  founded  on  the  nonresidence.^  Per- 
sons upon  whom  notices  of  attachment  are  served  on  the  ground  of  their  indebt- 
edness to  defendant  cannot  have  the  existence  of  such  debts  determined  on  motion 
to  set  aside  the  service.^  An  amendment  to  a  petition,  showing  recovery  in  a  cause 
of  action  on  an  implied  promise  to  repay  money  had  and  received,  supports  the 
original  petition,  alleging  an  oral  contract  to  pay,  so  as  to  constitute  proper  ground 
for  attachment.*  One  moving  as  a  subsequent  lienor  to  vacate  a  prior  attachment 
does  not  make  good  his  right  by  showing  his  own  attachment,  and  an  incomplete 
publication  to  sustain  it.^°  Dismissal  is  proper  where  the  court  has  not  the  re- 
quired jurisdiction  of  defendant,  and  no  property  within  the  state  has  been  seized.^^ 
An  attachment  against  residents  for  a  debt,  on  contract  for  direct  payment  of 
money,  must  be  discharged,  though  two  of  six  defendants  whose  property  was 
taken  are  nonresidents,  where  the  affidavit  does  not  show  that  the  claim  was 
not  secured.^^  An  attachment  in  an  action  for  breach  of  a  contract  void  under 
the  statute  of  frauds  is  properly  vacated  on  motion.^^  Collection  of  a  sum,  and 
its  credit  on  the  claim  for  which  attachment  issued,  from  the  estate  of  one  jointly 


1.  Under   Bankruptcy   Act    1898,    §   67f — In 
re  Beals,  116  Fed.   530. 

2.  Bankruptcy  Act,  §  67f — Hardt  v.  Schuyl- 
kiU  Plush  &  Silk  Co.,  69  App.  Dlv.  (N.  Y.)  90. 

3.  In   re   Tune,    115    Fed.    906. 

4.  Powers  Dry  Goods  Co.  v.  Nelson,  10  N. 
D.   580. 

5.  Wakeman    v.    Throckmorton,    74    Conn. 
616. 

6.  Gallun  V.  "Weil  ("Wis.)   92  N.  "W.  1091. 

7.  Hall  V.  Packard,  51  "W.  "Va.   264. 

8.  Weil    V.    Gallun,    75    App.    Div.    (N.    T.) 
439. 


9.  Munns  v.  Donovan  Commission  Co. 
(Iowa)    91   N.  "W.   7S9. 

10.  Under  Code  Civ.  Proc.  N.  Y.  §  638, 
providing  for  publication;  section  442,  pro- 
viding- for  time  of  publication;  and  section 
682,  g-iving  one  acquiring  a  lien  after  at- 
tachment the  right  to  apply  for  vacation — 
Doheny  v.  Worden,  75  App.  Div.  (N.  Y.)  47; 
Salt   Springs   Nat.   Bank  v.    Same,    Id. 

11.  Beasley  v.  Lennox-Haldeman  Co.  (Ga.) 
42  S.  B.   385. 

12.  Code  Civ.  Proc.  §  556 — Sparks  v.  Bell, 
137   Cal.   415,   70  Pac.   281. 

13.  Knight  v.  Hatfleld,   129  N.   C.    191. 


254 


ATTACHMENT. 


liable  with  defendant,  which  was  accepted  by  plaintiff's  amended  petition,  does 
not  render  the  attachment  void;^*  nor  omission  of  the  cause  of  attachment  in 
the  writ,  since  plaintiff  may  have  it  amended  as  the  court  may  direct."  Attach- 
ment against  a  foreign  corporation  should  not  be  vacated  on  the  ground  that  the 
action  was  at  law,  merely  because  a  referee,  who  had  received  the  affidavits,  had 
decided  that  the  action  was  not  in  equity,  since  that  question  should  not  be  deter- 
mined on  a  preliminary  motion.^®  Where  service  of  summons,  made  without  the 
state,  is  set  aside,  the  attachment  will  be  vacated,  though  appeal  has  been  taken 
and  no  stay  granted.^''  A  slight  change  in  the  names  of  the  defendants  as  they 
appear  in  the  affidavits  will  not  be  ground  for  vacating  the  writ,  where  it  is  cer- 
tainly showTi  that  they  were  the  proper  persons.^^  Defendant's  failure  to  execute 
a  bond  will  not  prevent  vacation  of  attachment  brought  on  ground  of  breach  of 
a  contract,  which,  it  was  apparent  from  the  pleadings,  was  void  under  the  statute 
of  frauds.^"  Vacation  of  a  warrant  on  a  condition  with  which  each  defendant 
complies  works  plaintiff  no  injury.^"  T\Tiere  the  warrant  of  an  attachment  states 
that  the  action  is  for  wrongful  detention  of  property,  while  the  complaint  alleges 
wrongful  conversion,  it  is  merely  an  irregularity,  not  to  be  considered  on  a  motion 
to  vacate.^^  In  Arizona  the  death  of  defendant  will  not  dissolve  the  attachment ;-' 
but  it  is  otherwise  in  South  Dakota  as  to  attachment  issued  on  an  ordinary  money 
judgment.^^  Dismissal  of  a  cause  of  action  on  which  property  is  seized  dissolves 
the  attachment,  so  that  a  sale  cannot  be  had,  though  an  amended  petition  is  sub- 
sequently filed  setting  forth  another  and  different  cause  of  action.^*  A  motion 
to  dissolve  should  prevail  where  the  causes  of  action  as  to  some  of  several  claims 
on  which  the  attachment  issued  have  been  dismissed  by  plaintiff.^^  Attachment 
against  a  national  bank  in  an  action  to  recover  property  secured  by  the  bank  by  J 
intervention  in  a  preceding  attachment  against  others  should  be  dissolved  on  mo-  ^ 
tion  of  the  bank.'^ 

B.  Procedure. — After  general  appearance  by  defendant,  a  motion  may  be 
made  to  release  the  property  for  failure  of  the  grounds  of  attachment.^^  Where 
defendant  appears  and  joins  issue  on  the  petition,  the  court  may  render  judgment 
for  the  amount  found  due,  without  regard  to  the  extent  of  the  levy.^^  Outside  of 
defendant's  liability,  the  ground  of  attachment  must  be  questioned  by  traverse 
of  the  affidavit  and  trial  by  the  issues  thus  formed.^^  The  jury  cannot  be  remit- 
ted to  the  affidavit  to  ascertain  the  issues  to  be  determined.^"  Annulment  of  an 
attachment  in  a  state  court  by  proceedings  in  bankruptcy  deprives  such  court  of 


14.  First  Nat.  Bank  v.  Wallace  (Tex.  Civ. 
App.)  65  S.  W.  392. 

15.  Kurd's  Rev.  St.  1S99,  p.  176,  §§  6,  28, 
providing  the  foriii  of  the  writ,  and  that  it 
should  not  be  quashed  for  mere  insufficiency 
— Cline  v.  Patterson,  191  111.  246;  reversing 
judgment,  88  111.  App.   360. 

16.  Schultz  V.  Brackett,  Bridge  Co.,  35 
Misc.  Rep.   (N.  Y.)    595. 

17.  Code  Civ.  Proc.  requires  personal  serv- 
ice within  thirty  days  after  issuance  of  the 
attachment,  or  service  by  publication  com- 
menced within  that  time — Martin  v.  Smith, 
37  Misc.   Rep.    (N.   T.)    425. 

18.  Sparks  v.  Bell,  137  Cal.  415,  70  Pac. 
281. 

19.  Knight  V.  Hatfleld,   129  N.  C.   191. 

20.  McDonald  v.  Manice  (Sup.)  72  N.  T. 
Supp.    543. 

21.  Railings  v.  McDonald,  76  App.  Div. 
(N.  Y.)    112. 


22.  Rev.  St.  pars.  67,  68,  725 — Wartman 
v.  Pecka  (Ariz.)   68  Pac.  534. 

23.  Yankton  Sav.  Bank  v.  Gutterson,  15 
S.   D.    486. 

24.  Holway  v.  American  Exch.  Nat.  Bank 
(Neb.)  89  N.  W.  382. 

25.  First  Naf.  Bank  v.  Van  Doren  (Neb.) 
93  N.  W.  1017. 

26.  Under  Rev.  St.  U.  S.  §  5242,  prohibit- 
ing attachment  against  nafional  banks  in 
state  courts — Willard  Mfg.  Co.  v.  Geo.  H. 
Tirney   &   Co.,    130   N.   C.    611. 

27.  Sullivan  v.  Moffat   (N.   J.)    52  Atl.   291. 

28.  Attachment  in  aid  of  action  for  money 
had  and  received.  In  which  the  identical 
money  deposited  by  plaintiff  was  attached — 
Munns  v.  Donovan  Commission  Co.  (Iowa) 
91    N.   W.    789. 

29.  Rev.  St.  1898,  §  2745 — Gallun  v,  "Well 
(V,ns.)    92    N.    W.    1091. 

30.  Bowles  Live-Stock  Commission  Co.  v. 
Hunter,   91  Mo.  App.   333. 


ENFORCEMENT  AND  DISSOLUTION. 


255 


jurisdiction,  and  the  question  of  comity  cannot  arise. ^^  In  Texas,  defendant's 
right  to  answer  with  as  many  defenses  as  necessary  and  pertinent  to  his  cause, 
if  filed  simultaneously  and  in  due  order,  will  not  prevent  him  from  filing  a  plea 
in  abatement  to  the  writ  on  the  ground  of  the  insolvency  of  the  sureties  on  the 
bond  after  filing  a  plea  to  merits;  but  where  defendant's  answer,  a  general  denial, 
was  filed  nine  months  after  the  commencement  of  the  suit,  a  plea  in  abatement 
filed  three  years  and  fifteen  days  later  is  too  late.^^  That  sureties  on  a  bond  are 
nonresidents,  and  that  the  resident  sureties  are  not  worth  the  amount  required, 
may  be  raised  by  plea  in  abatement.^^  A  motion  may  be  made  for  an  order  for 
accounting  from  the  party  served  in  an  equitable  attachment;  but  a  motion  for 
an  account  under  oath  of  the  shares  of  stock  attached  cannot  be  made  before  com- 
plainants have  established  their  bill,  or  shown  circumstances  requiring  disclosure.^* 
Plaintiff  may  discontinue  the  suit  where  defendant  has  only  appeared  specially 
to  move  vacation  of  the  service  and  warrant.^'  The  motion  to  dismiss  attachment 
against  a  nonresident,  to  aid  which  garnishment  has  issued,  on  the  ground  that 
no  property  or  credits  of  defendant  within  the  jurisdiction  have  been  seized,  can- 
not lie  until  the  garnishee  has  answered,  though  a  bond  for  dissolution  has  been 
given. ^®     Defendant  may  move  for  a  discharge  of  the  writ  before  levy.^'' 

On  a  motion  to  dismiss  for  improvident  issuance,  the  questions  of  existence 
of  action  in  fact  against  defendant,  or  of  statutory  conditions  requisite  to  the  writ, 
■or  of  the  facts  upon  which  such  conditions  rest,  are  immaterial.^^  An  affidavit 
traversing  the  attachment  affidavit  in  all  parts  except  in  the  statement  that  plain- 
tiff has  reason  to  believe  that  defendant  was  disposing  of  his  property  to  defraud 
his  creditors  is  insufficient.^* 

Evidence.*''^ — Until  the  contrary  is  shown,  it  will  be  presumed  that  the  court 
decided  an  issue  of  right  to  an  attachment  on  the  affidavit  alone.*^  Wliere  the 
writ  issues  for  the  price  of  coal  furnished  as  "necessaries,"  it  will  be  presumed 
that  it  was  furnished  for  domestic  purposes,  unless  it  appears  otherwise.*^  If  a 
corporation,  cited  to  appear  and  give  a  certificate  of  property  in  its  possession 
belonging  to  the  defendant,  refuses  to  do  so,  or  gives  an  insufficient  certificate, 
plaintiff  may  have  an  examination,  but  such  examination  must  be  limited  to  prop- 
erty liable  to  attachment  within  the  jurisdiv'^tion.*'  The  rights  of  parties  to  the 
property  should  be  determined  only  by  the  pi  °ponderance  of  the  evidence.**  The 
manner  of  taking  evidence  on  the  motion  is  discretionary,  where  defendant  traverses 
the  affidavit.*^  On  a  petition  to  dissolve,  defendant  may  testify  that  he  had  no 
knowledge  of  any  debt  owing  to  plaintiff,  as  showing  absence  of  fraudulent  intent 
in  disposing  of  his  property.*^     An  affidavit  of  nonresidence,  by  the  person  from 


31.  In  re  Tune,  115  Fed.  906. 

See  ante,  §  14,  where  the  effect  of  bank- 
ruptcy as  annulling  attachment  is  treated. 

32.  Rev.  St.  art.  1262 — "Wallace  v.  First 
Nat.  Bank  (Tex.)  65  S.  W.  180. 

33.  Wallace  v.  First  Nat.  Bank  (Tex.)  65 
S.   W.   180. 

34.  Under  Gen.  Laws,  c.  252,  §  27 — Ladd 
V.  Franklin  Loan  and  Trust  Co.  (R.  L)  53 
Atl.  59. 

35.  Straus  v.  Guilhou  (Sup.)  80  N.  T.  Supp. 
180. 

36.  Henry  v.  Lennox-Haldeman  Co.  (Ga.) 
42  S.  E.   383. 

37.  Sparks  v.  Bell    (Cal.)    70   Pac.   281. 

38.  Gallun  V.  Weil  (Wis.)  92  N.  W.  1091. 

39.  Reese   v.    Damato    (Fla.)    33   So.    459. 

40.  Sufficiency  of  evidence  of  fraudulent 
Intent — Abel  &  Bach  Co.  v.  Duffy,  106  La. 
260;  of  evidence  as  to  failure  of  actual  levy 


on  property,  so  as  to  prevent  running  of 
limitations  against  the  officer  making  the 
levy — Hill  v.  Haas,  46  App.  Dlv.  (N.  Y.) 
360;  affirmed,  170  N.  Y.  566. 

41.  The  complaint  cannot  be  considered 
unless  verified  and  attached  to  the  affidavit 
and  referred  to  therein — Chrtty  v.  Pennsyl- 
vania R.   Co.,    62    S.   C.    526. 

42.  Attachment  for  claims  for  necessaries, 
under  Rev.  St.  Ohio,  §  6489 — Collins  v.  Bing- 
ham,   22  Ohio  Cir.  Ct.  R.   533. 

43.  Under  Code  Civ.  Proc.  §§  650,  651 — 
Stlne  V.   Greene,    65   App.   Div.    (N.   Y.)    221. 

44.  Bowles  Live-Stock  Commission  Co.  v. 
Hunter,   91  Mo.  App.   333. 

45.  Geo.  F.  Dittman  Boot  &  Shoo  Co.  v. 
Graff    (Neb.)    91   N.   W.   188. 

46.  Dimmock  v.  Cole  (Mich.)  9  Detroit 
Leg.  News,  166;  Smith  v.  Same,  Id.;  Good- 
win v.  Same,  Id. 


256 


ATTACHMENT. 


whom  the  information  as  to  nonresidence  given  in  the  affidavit  of  attachment  was 
obtained/ attached  to  the  latter  affidavit,  may  be  considered  on  a  motion  to  vacate 
to  show  tlie  source  of  information,  though  not  sufficiently  authenticated  to  be 
admitted  in  evidence.*^  On  notice  of  a  motion  to  vacate,  both  on  the  attachment 
papers  and  the  judgment,  without  any  limitation  as  to  the  use  of  the  judgment 
by  defendant,  it  may  be  used  by  plaintiff,  as  well  as  defendant,  to  establish  any 
facts  recited  therein;  and  where  the  judgment  recited  that  defendant  was  a  for- 
eign corporation,  and  showed  a  claim  due  from  it  to  plaintiff  for  breach  of  con- 
tract, which  was  based  on  the  attachment  papers  and  the  judgment,  it  will  be  pre- 
sumed that  the  recitals  of  the  judgment  were  sufficiently  proved,  and  it  is  imma- 
terial that  they  were  not  substantiated  by  the  affidavits.*^ 

Judgment  and  decree  or  order. — A  personal  decree  cannot  be  had  in  foreign 
attachment  in  chancery.*^  The  judgment  need  not  recite  that  execution  shall 
issue  against  the  property,  or  that  the  judgment  is  in  rem,  and  valid  only  as  against 
the  attached  property.^"  Judgment  must  be  entered  on  the  merits,  where  the 
parties  appear  voluntarily  and  go  to  trial  on  the  issue  of  ownership  in  the  orig- 
inal action.^*  A  judgment  of  sale  is  not  prima  facie  void  as  including  land  not 
owned  by  the  defendant,  unless  that  fact  appears  from  the  return  of  service.^^  A 
judgment  in  attachment  in  aid  of  assumpsit  is  entire,  and,  if  void  as  to  one  of 
two  defendants,  is  void  as  to  both.^^  A  defendant  without  title  to,  but  in  posses- 
sion of,  real  estate  attached  as  that  of  another,  and  claiming  it  as  her  own,  may 
urge  errors  in  a  judgment  for  its  sale.^*  An  attachment  creditor  does  not  lose 
his  rights  by  failing  to  take  out  execution  on  his  judgment  within  sixty  days 
after  rendition,  where  he  surrendered  the  property  to  a  receiver  prior  to  judg- 
ment, thereby  preventing  a  lev3^^^  Finding  and  judgment  for  defendant  ipso 
facto  discharge  the  attachment.^®  In  vacating  an  attachment  because  founded 
on  breach  of  a  contract  void  under  the  statute  of  frauds,  the  court  need  not  find 
that  plaintiff  had  expended  money  on  the  property  under  the  contract.^^ 

On  discharge  of  an  attachment,  neither  party  can  be  ordered  to  pay  the  sher- 
iff's bondage  by  reason  of  the  law  providing  for  payment  of  legal  charges  on  deliv- 
ery to  defendant  by  the  officer,  and  defendant  cannot  be  ordered  to  pay  the  sheriff's 
bondage  as  taxed  by  him,  though  the  court  has  authority  to  tax  it.^®  An  order 
by  the  judge  at  chambers,  discharging  an  attachment  levied  by  one  assuming  to 
act  as  officer,  but  not  qualified,  on  plaintiff's  release,  executed  without  presence 
of  his  counsel,  or  contest,  does  not  settle  the  right  of  plaintiff  to  seize  the  prop- 
erty under  a  subsequent  attachment,  based  on  the  original  affidavit,  filed  when 
the  action  was  commenced.^*  Where  property  is  seized  vrithout  an  affidavit  of 
grounds,  the  seizure  may  be  discharged  on  motion,  but  the  writ  cannot  be  set 
aside.®** 


47.  M'allon  V.  Rothschild,  38  Misc.  Rep. 
(N.  Y.)    8. 

48.  Belmont  v.  Sigua  Iron  Co.  (Sup.)  80 
N.  Y.  Supp.  771. 

49.  The  proceeding  Is  purely  statutory, 
under  Code  Miss.  §§  486,  487 — Chamberlin- 
Hunt  Academy  v.  Port  Gibson  Brick  &  Mfg. 
Co..   80  Miss.   517. 

50.  Kerns  v.  McAulay  (Idaho)  69  Pac. 
539. 

51.  Haines  v.  Stewart  (Neb.)  91  N.  "W. 
539. 

52.  White  V.  Ladd,  41  Or.  324,  68  Pac. 
739. 

53.  Britton  v.   Gregg,    96   111.   App.   29. 


54.  Webber  v.  Tanner  (App.)  23  Ky.  Law 
R.  1694;  modifying  23  Ky.  Law  R.  1107. 

55.  Under  Gen.  St.  Conn.  1887,  §  922 — Cen- 
tral Trust  Co.  V.  Worcester  Cycle  Mfg.  Co., 
114    Fed.    659. 

56.  Alpirn  v.  Goodman  (Neb.)  91  N.  W. 
530. 

57.  Knight  v.   Hatfield,   129  N.   C.   191. 

58.  Code  Civ.  Proc.  §  709 — Treadwell  v. 
John  A.  Mead  Mfg.  Co..  75  App.  Div.  (N.  Y.) 
478. 

59. 

Kan. 

60. 


J.  v.  Brinkman  Co.  Bank  v.  Gustin,  63 
758,    66    Pac.    990. 
Under  Rev.  St.  1898,  §  2731 — Gallun  v. 


Weil    (Wis.)    92  N.  W.   1091. 


CLAIMS   OF   THIRD   PERSONS. 


257 


§  16.  Hostile  and  opposing  claims  to  attached  property.^^ — A  mere  claim  of 
ownership  of  attaclied  property  will  not  give  the  right  to  intervene  to  settle  the 
ownership  in  the  attachment  suit.'*  An  interpleader  cannot  be  maintained  after 
the  property  is  destroyed  in  the  hands  of  plaintiff.®^  Interposition  by  a  mortgagee 
who  claims  the  proceeds  of  the  property  will  not  bind  the  owner  by  estoppel  to 
prevent  assertion  of  his  rights.®*  Where  a  second  attachment  following  one  in 
the  federal  court  is  made  subject  thereto,  one  claiming  the  property  under  a 
deed  of  trust,  and  receiving  the  property  from  the  marshal  in  the  first  attach- 
ment on  a  forthcoming  bond,  after  selling  the  property  and  satisfying  his  deed, 
cannot  interplead  in  the  second  attachment.''^  An  attachment  procured  by  collu- 
sion of  the  parties  to  give  preference  to  plaintiff  over  other  creditors  is  void  against 
them.®®  After  an  attachment  lien  on  land,  obtained  against  a  debtor,  is  enforced 
against  his  executrix  by  sale,  insolvency  of  his  estate  is  unnecessary  to  jurisdiction 
to  clear  title  as  against  fraudulent  grantees  of  the  debtor.®^  A  national  bank  may 
intervene  in  attachment;  but  intervention  does  not  make  it  a  party,  so  as  to 
authorize  dismissal.®^  A  stranger  in  possession  of  attached  property,  who  gives 
a  statutory  undertaking  for  redelivery,  cannot  assert  ownership,  so  as  to  try  the 
right  of  property.®®  A  judgment  creditor  who  assigned  the  judgment  before  its 
attachment  by  his  creditor  cannot  bring  an  action  to  compel  his  assignee  to  inter- 
plead to  protect  his  interests,  since  notice  may  be  given  the  assignee  to  appear, 
which  will  fully  protect  the  judgment  creditor  against  him.'"'  An  interpleader 
is  in  the  nature  of  replevin,  so  that  the  respective  interests  of  the  parties  may 
be  settled.''^  Interposition  of  a  claim  suit  admits  both  the  debt  claimed  by  plain- 
tiff and  the  levy."  Wliere  defendants  allow  judgment  to  go  by  default,  the  only 
issue  between  them  and  plaintiffs  is  as  to  damages,  so  that  an  intervenor  claiming 
the  property  has  no  right  to  interfere;"  but  intervention  filed  after  sale  of  the 
property,  and  deposit  of  the  proceeds  with  the  clerk  under  order  of  court,  is  in 
time.''*  An  intervenor  in  a  landlord's  attachment  cannot  recover  for  the  use  of 
the  property,  though  he  claims  ownership.'^'' 

Pleading. — The  provisions  of  a  state  statute  as  to  the  trial  of  claims  against 
attached  property  are  binding  on  the  federal  courts,  so  that,  where  the  attach- 
ment plaintiff  fails  to  have  an  issue  made  up  at  the  term  to  which  the  execution 
is  returnable  as  to  the  claim  against  the  property,  the  claimant  is  entitled  to  have 
the  property  discharged,  and  be  discharged  from  his  forthcoming  bond,  and  his 
right  is  not  lost  by  failure  to  move  for  discharge  during  a  number  of  terms  of 


61.  Priorities,  see  ante,  §  14;  also  see 
Priorities  between  Creditors.  Bonds  to  in- 
demnify levying  officer,  see  ante,  §  9;  also 
see   Bonds,    Indemnity. 

62.  Haines  v.  Stewart  (Neb.)  91  N.  "W. 
539. 

63.  It  involves  primarily  the  right  of 
possession — I.  Stadden  Grocery  Co.  v.  Lusk, 
95   Mo.    App.    261. 

64.  The  mortgagee  cannot,  by  his  acts, 
estop  the  mortgagor  as  against  a  wrong- 
doer— Petty  V.  Hayden,   115   Iowa,   212. 

6.").  Simmons  Hardware  Co.  v.  Loewen,  95 
Mo.  App.  122. 

66.  Under  Code,  §  2156 — Butler  v.  Feeder, 
130  Ala.   604. 

67.  First  Nat.  Bank  v.  Tompkins  (Neb.) 
91  N.  W.  551. 

68.  Willard  Mfg.  Co.  v.  Geo.  H.  Tirney  & 
Co..  130  N.  C.  611. 

Cur.  Law — 17. 


69.  Right  to  trial  under  Code  Civ.  Proo. 
§§  945,  996 — Allyn  v.  Cole  fNeb.)  91  N.  W. 
505. 

70.  Code,  art.  9,  §  17,  providing  for  determ- 
ination of  rights  to  funds  aftached — Fetter- 
hoff  V.   Sheridan,   94  Md.   445. 

71.  Drumm  Flato  Commission  Co.  v.  Sum- 
mers, 89  Mo.  App.  300;  Barnes  v.  Stanley, 
96  aio.  App.  1. 

73.  Code,  §  4141,  provides  for  interposi- 
tion of  claims  in  attachment — Schrloss  v.  In- 
man,   129  Ala.   424. 

73.  Alpine  Cotton  Mills  v.  "Well,  129  N.  C. 
452. 

74.  Code,  §  3928 — Petty  v.  Hayden,  115 
Iowa,    212. 

75.  Intervention  authorized  by  Code,  8 
3594 — Ohde  v.  Hoffman  (Iowa)  90  N.  W. 
750. 


258 


ATTACHMENT. 


court.'"  A  claim  to  property  attached  as  belonging  to  a  firm,  which  was  declared 
bankrupt  within  four  months  after  beginning  the  attachment,  must  be  disposed 
of  on  the  pleadings,  and  not  on  motion J^  On  proceedings  by  claimant,  only  the 
specific  property  covered  by  the  affidavit  and  bond  can  be  considered,  and  the  claim- 
ant cannot  prove  that  there  was  no  valid  levyJ*  The  issue  on  interplea  in  attach- 
ment is  the  title  of  the  attached  property  as  between  defendant  and  the  inter- 
pleadcrJ^  Defects  in  a  notice  by  a  third  person  that  attached  property  be- 
longed to  him  are  waived  by  execution  of  a  proper  indemnifying  bond,  and  such 
waiver  is  sufficiently  pleaded  by  alleging  that  the  officer,  in  pursuance  of  the  notice, 
required  an  indemnifying  bond,  which  was  given.^" 

Evidence  and  questions  of  fact.^^ — ^Yllere  a  claimant  of  attached  goods  with- 
drew his  claim  before  the  jury  retired,  and  sued  the  officer  in  conversion,  it  will  be 
presumed,  on  motion  by  defendant  for  judgment  on  the  pleadings,  that  such  suit 
was  commenced  prior  to  the  sale  in  the  attachment,  there  being  no  evidence  on 
that  issue.^^  The  burden  of  proof  is  on  the  claimant,  and  he  has  the  right  to 
open  and  close  ;^^  he  must  establish  his  title  affirmatively.^*  Where  the  claimant 
admits  that  defendant  was  in  possession  of  goods  at  time  of  lev}',  he  has  the  bur- 
den of  proof,  so  as  to  entitle  him  to  open  and  close,  and  must  explain  the  pos- 
session of  defendant  as  consistent  with  his  claim  of  title.*''  "Where  the  interpleader 
does  not  question  the  validity  of  the  attachment  and  levy,  plaintiff  need  intro- 
duce no  evidence  that  he  is  a  creditor  of  defendant,  especially  if  he  allege  that 
the  interpleader's  title  is  fraudulent.*®  The  inventory  attached  by  the  sheriff  to 
the  levy  may  be  admitted  as  evidence,*''  and,  on  intervention  after  sale,  testimony 
may  be  given  as  to  the  amount  for  which  the  property  sold.**  Complainant  can- 
not introduce  a  receipted  bill  for  the  attached  property,  dated  after  the  levy; 
and  where  the  wife  of  defendant  claims  personal  property  attached  as  her  own, 
evidence  that  defendant  had  listed  the  property  with  the  assessor  as  his  own  may 
be  admitted  in  rebuttal  of  his  testimony  that  the  property  belonged  to  his  wife.*' 
Evidence  that  a  debtor  owning  a  kiln  on  the  land  of  another  had  told  the  land- 
owner to  take  the  kiln  for  supplies  advanced,  and  that  he  had  done  so,  is  ad- 
missible in  favor  of  the  landowner,  who  claims  the  land  as  against  an  attach- 
ing creditor  who  seized  the  kiln.^°  The  issue  for  the  jury  on  a  claim  is  whether 
the  property  belongs  to  defendant  and  is  liable  to  satisfaction  of  the  writ.'^ 

Trial^^ — A   separate  trial  is   discretionary  where  the  only  issue  is   that  of 


76.  Code  Miss.  1892.  §§  4425-4428 — MUler 
V.  Tennant-Stribling  Shoe  Co.  (C.  C.  A.)  119 
Fed.    865. 

77.  New  Orleans  Acid  &  Fertilizer  Co.  v. 
Grissom.   79  Miss.   662. 

78.  H.  B.  Claflin  Co.  v.  Harrison  (Fla.)  31 
So.  818. 

79.  Graham  Paper  Co.  v.  Crowther,  92 
Mo.  App.   273. 

SO.  Under  Code.  §§  3991-3993,  3906 — Don- 
nelly V.  Mitchell    (Iowa)    93   N.  "W.   369. 

81.  Sufficiency  of  evidence  to  show  the 
right  of  claimant  in  attachment  to  the  prop- 
erty— Brewer  v.  Gates  (Miss.)  31  So.  205; 
of  title  of  intervener — Alpine  Cotton  Mills 
V.  Weil,  129  N.  C.  452;  of  value  of  goods 
in  a  suit  by  a  claimant  to  recover  them  from 
attachment  against  another — Roberts  v. 
Burr.   135   Cal.   156,   67  Pac.   46. 

82.  Singer  Mfg.  Co.  v.  Driver,  40  Or.  333, 
«7  Pac.  111. 

83.  H.    B.    Claflin    Co.    v.    Harrison    (Fla.) 


31   So.   818;   Graham  Paper  Co.  v.  Crowther, 
92   Mo.   App.    273. 

84.  Alpine  Cotton  Mills  v.  "Weil,  129  N. 
C.   452. 

85.  People's  Nat.  Bank  v.  Harper,  114  Ga. 
603. 

86.  Graham  Paper  Co.  v.  Crowther,  92 
Mo.  App.  273. 

87.  Schloss    V.    Inman,    129    Ala.    424. 

88.  Ohde  v.  Hoffman  (Iowa)  90  N.  W. 
750. 

89.  Arnold  v.  Cofer  (Ala.)   33  So.  539. 

90.  Code  1892,  §  4231,  which  requires  as- 
signments of  trusts  to  be  in  writing,  13 
not  applicable — Brewer  v.  Gates  (Miss.)  31 
So.   205. 

91.  Code,  §  4142 — Schloss  v.  Inman,  129 
Ala.   424. 

93.  Sufficiency  of  instruction  as  to  the 
possession  of  personalty  as  prima  facie  evi- 
dence of  title  in  a  case  in  which  the  wife 
of  defendant  claimed  the  property  as  her 
own,    and    of    ah    instruction    directing    the 


WRONGFUL    ATTACHMENT, 


259 


title."  Trial  of  a  claim  to  attached  property  cannot  be  held  before  publication 
or  service  after  issuance  of  an  ancillary  attachment  writ.®*  A  debt,  though  in- 
capable of  manual  delivery,  is  within  the  statute  authorizing  the  sheriff  to  pro- 
ceed by  jury  to  try  title  to  attached  property  for  the  purpose  of  obtaining  a  bond." 
Under  the  law  giving  the  sheriff  power  to  try  the  validity  of  a  claim  to  attached 
property  by  a  jury,  and  relinquish  the  levy  if  the  verdict  is  for  claimant,  unless 
plaintiff  gives  a  sufficient  bond,  a  bond  given  by  the  attaching  creditor  voluntarily 
on  such  claim  without  a  jury  trial  is  valid,  so  as  to  enable  the  holding  of  the 
property.®* 

Findings  and  judgment. — The  finding  need  not  show  general  ownership  in 
the  claimant,  where  the  taking  is  admitted  by  plaintiff,  since  special  ownership  is 
sufficient.®^  Judgment  cannot  be  entered  against  the  claimant  and  sureties  in  an 
indefinite  amount,  to  be  afterwards  ascertained  by  the  judgment  in  the  principal 
suit,  but  may  be  given  against  them  for  the  value  of  the  property  as  fixed  by  the 
attaching  officer,  where  the  value  is  not  controverted  on  trial  of  the  claim,  nor 
any  finding  had  thereto.®®  Judgment  cannot  be  rendered  against  the  obligors  on 
the  claim  bond,  but  should  be  made  merely  condemning  the  property  as  subject 
to  the  attachment,  and  liable  to  satisfaction  of  the  judgment  which  has  been  ren- 
dered or  is  to  be  rendered.®'  Where  goods  claimed  by  an  intervener  are  sold  as 
perishable  by  order  of  court,  a  judgment  in  favor  of  the  claimant  should  be  for  the 
amount  in  court,  not  the  value  of  the  goods.^  Wliere  the  recitals  of  the  jury's 
verdict  in  a  trial  of  right  of  property  show  that  the  verdict  was  made  pursuant 
to  an  agreement  between  the  parties,  it  will  be  presumed  that  the  separate  assess- 
ment of  each  item,  according  to  the  statutory  requirement,  was  made  unnecessary 
by  the  agreement,  and,  unless  the  contrary  appears,  that  the  assessment  was  im- 
practicable.'^ 

§  17.  Wrongful  attachment.^ — Wliere  the  action  to  aid  which  attachment 
was  issued  was  pending,  the  owner  of  property  attached  cannot  maintain  an  action 
of  contract  for  its  recovery  against  the  officer  serving  the  attachment.*  That  plain- 
tiff gave  an  indemnity  bond  to  the  officer  does  not  show  responsibility  for,  or 
approval  of,  a  seizure  of  goods  of  a  third  person.'  Where  one  who  had  loaned 
money  to  a  railroad  contractor  levied  on  property  of  the  contractor  and  the  rail- 
road company,  when  a  levy  against  property  of  the  contractor  alone  would  have 
stopped  construction,  he  is  liable  in  wrongful  attachment  for  only  such  damages 
to  the  company  as  are  clearly  shown."  Where  it  appears  that  the  administrator 
of  an  estate  received  goods  uninjured  which  had  been  attached  as  property  of  the 


jury  to  consider  the  assessment  of  taxes  on 
the  property  against  defendant  in  connection 
with  other  evidence  on  the  question  of  title 
— Arnold  V.  Gofer    (Ala.)    33   So.   539. 

93.  Alpine  Cotton  MUls  v.  Weil,  129  N.  C. 
452. 

94.  Lamb   v.    Russel    (Miss.)    32    So.    916. 

95.  Code  Civ.  Proc.  §  651 — Minor  v.  Gurley, 
89  Misc.  Rep.  (N.  Y.)   662. 

96.  Comp.  Laws,  §§  5002.  5125 — Matheson 
V.  F.  W.  Johnson  Co.    (S.   D.)    92   N.  W.  1083. 

97.  Roberts  v.  Burr,  135  Cal.  156,  67  Pac. 
46. 

98.  Under  Rev.  St.  §  1200.  providing  that 
Judgment  as  to  adverse  claims  shall  be  en- 
tered deciding  the  right  of  property,  and 
giving  plaintiff  a  right  of  recovery  against 
the  claimant  for  costs  and  damages  of  his 
intervention — Geiger  v.  Henry  (Pla.)  32  So. 
874. 


99.     Arnold  v.  Cofer   (Ala.)    33  So.   539. 

1.  Hughes  Bros.  Mfg.  Co.  v.  Reagan  (Ind. 
Ter.)    69  S.  W.  940. 

2.  Assessment  of  Items  required  by  Code, 
§  4143 — Massillon  Engine  &  Thresher  Co.  v. 
Arnold,    133    Ala.    368. 

S.  Amount  of  exemplary  damages  In 
wrongful  attachment,  as  out  of  proportion 
to  amount  of  actual  damages — Leonard  v. 
Harkleroad  (Tex.  Civ.  App.)  67  S.  W.  127. 
Sufficiency  of  evidence  to  show  that  the 
writ  of  venditioni  exponas  grew  out  of  the 
attachment  referred  to  in  the  bond  sued  on — 
Hamilton   v.   Maxwell.    133   Ala.    233. 

4.  Brady  v.  Royce,  180  Mass.   553. 

5.  Siersema  v.  Meyer,  38  Misc.  Rep.  (N. 
Y.)    358. 

6.  Cameron  v.  Orleans  &  J.  R.  Co.,  108 
La.   83. 


260 


ATTACHMENT. 


estate,  and  that,  after  sale  under  order  of  court,  the  proceeds  were  paid  to  the 
estate,  the  attachment  plaintiff  is  not  liable  for  wrongful  issuance  of  the  writ/ 
The  owner  of  attached  goods  may  sue  for  wrongful  attachment  on  plaintiff's  bond, 
or  independently  thereof,  and  join  the  surety;  and  in  the  latter  suit  the  surety 
cannot  object  to  jurisdiction  because  his  liability  on  the  bond  is  less  than  the 
limit  of  jurisdiction,  where  the  owner  claims  exemplary  damages,  bringing  the 
amount  within  the  limit.^  A  wrongful  attachment  cannot  be  attacked  by  other 
creditors  on  an  ordinary  creditor's  bill.® 

Pleading  and  damages. — Where  the  same  amount  of  actual  damages  is  claimed 
in  an  original  and  an  amended  petition,  a  plea  to  the  jurisdiction  will  not  lie  on 
the  amended  petition  after  a  pica  to  the  merits  on  the  original  petition.^"  Plain- 
tiff cannot  recover  "any  damages"  resulting  from  wrongful  detention  of  the  prop- 
erty,^^  nor  lost  profits.^* 

Evidence  and  questions  of  fact. — The  inventory  and  appraisement  made  by 
the  officer  on  levy  is  admissible  on  the  value  of  the  goods  as  against  the  creditor." 
Evidence  of  the  amount  of  plaintiff's  business,  profits,  and  credit,  and  the  effect 
of  a  wrongful  attachment  thereon,  are  admissible;  and  evidence  that  news  of  the 
attachment  was  published  by  a  mercantile  agency  is  admissible  under  an  allegation 
that  the  attachment  injured  plaintiff's  business  and  credit,  though  defendants 
are  not  shown  to  have  been  directly  responsible  for  publication ;  and  where  defend- 
ants pleaded  a  release  from  plaintiff,  evidence  thereof  should  have  been  admit- 
ted, though  the  complaint  showed  such  excessive  levy  as  to  amount  to  duress." 
Evidence  of  a  sale  of  a  part  of  his  property  by  plaintiff,  where  limited  to  the  issue 
of  probable  cause,  is  properly  admitted  where  the  attachment  was  on  the  ground 
of  fraudulent  disposition  of  property,  and  evidence  is  admissible  to  show  that 
a  deed  from  plaintiff  to  his  father,  was  not  filed  until  the  day  of  issuing  the  writ, 
though  it  appeared  to  have  been  executed  three  years  before.*'  Evidence  of  the 
proceedings  in  the  attachment,  and  the  action  in  which  it  was  in  aid,  and  of  the 
application  of  the  proceeds  of  the  sale  to  the  judgment  obtained,  is  also  admissi- 
ble to  show  defendant's  good  faith.  He  may  also  testify  as  to  the  value  of  the 
goods  after  qualifying  himself.*'  Wliere  it  appears  that  no  writ  was  on  file, 
motions  by  the  attachment  plaintiff  in  the  original  suit  to  substitute  the  writ,  and 
to  direct  the  officer  to  sell  the  property,  may  be  admitted  to  show  that  the  attach- 
ment defendant  recognized  the  validity  of  the  levy.*^  A  suit  against  the  officer, 
for  conversion,  tried  after  sale  and  after  withdrawal  of  his  claim  before  it  was 
submitted  to  the  jury,  the  contrary  not  being  shown,  will  be  presumed,  on  a  mo- 
tion by  the  officer  for  judgment  on  the  pleadings,  to  have  been  begun  before  sale.** 
The  question  of  existence  of  a  fraudulent  intent  is  for  the  jury.*® 


7.  Plnkard  v.  Willis  (Tex.  Civ.  App.)  67 
S.  W.  135. 

8.  Leonard  v.  Harkleroad  (Tex.  Civ. 
App.)   67  S.  W.   127. 

9.  Meyrovitz  v.  Glaser  (Ala.)   31  So.  360. 

10.  Thompson  v.  Rosensteln  (Tex.  Civ. 
App.)    67    S.   W.   439. 

11.  An  instruction  in  such  language  Is  too 
broad — Hayes  v.  Union  Mercantile  Co. 
(Mont.)    70   Pac.    975. 

13.  Legal  Interest  on  the  value  of  the 
goods  may  be  recovered — Moravec  v.  Grell, 
(Sup.)    79  N.  T.  Supp.   533. 


13.  Green  v.   McCracken,    64  Kan.    330,    67 
Pac.   857. 

14.  Hayes  v.  Union  Mercantile  Co.  (Mont.) 

70  Pac.    975. 

15.  Cllne   V.    Hackbarth    (Tex.    Civ.    App.) 

71  S.  W.   48, 

16.  Cllne   V.    Hackbarth    (Tex.    Civ.    App.) 
71  S.  "W.   48. 

17.  Hamilton   v.  Maxwell,   133   Ala.   233. 

18.  Singer  Mfg.  Co.  v.  Driver,  40  Or.  333, 
67  Pac.  111. 

19.  Hamilton   v.   Maxwell,   133   Ala.    233. 


CURRENT  LAW. 

(Copyri^tited  ly03,  by  Joba  B.  West  Company.) 


Volume  I. 


OCTOBER.  1903. 


NCMBBR  S- 


ATTORNEYS    AND    COTJNSELOHS.i 


S  1*  Admission  to  Practice,  and  License 
Taxes. 

§  2.  PrlTilegres,  Disabilities,  Exemptions, 
and  Liinbilitie^;  General  Powers. 

§  3.     Suspension  and  Disbarment.— 

Grounds;  Censurable  Conduct;  Defense  or 
Excuse;  Procedure;  Decision  and  Judgment; 
Reinstatement. 

§  4.  Creation  and  Nature,  Termination 
and  Cbange  of  tbe  Relation. 

§  5.  Rigbts,  Duties,  and  Liabilities  Be- 
tuvcen  Attorney  anil  Client  Generally. — Loy- 
alty and  Good  Faith;  Diligence;  Negligence; 
Mutual   Dealings;   Accounting, 

§  6.     Remedies      Between      tbe      Parties.^ 

Summary  Proceedings;  Equity;  Criminal 
Prosecution. 


§  7.  Compensation  and  Lien. — Services 
not  Specified  in  Contract;  ImpUed  Contract; 
Several  Attorneys  or  Clients;  Contingent 
Fees;  Computation  of  Fees;  Allowances  by 
Court;  Loss  or  Forfeiture  of  Fees;  Frustra- 
tion of  Performance;  Lien  and  Loss  of  It; 
Protection  or  Enforcement  of  Lien  or  Fees 
in  Same  Suit;  Otlier  Remedies  to  Enforce  It. 
Procedure. 

S  8.  Authority  to  Represent  Client. — 
Management  of  Suit;  Knowledge;  Com- 
promises;  Contracts;  Admissions. 

§  !).  Righta  and  Liabilities  as  to  Third 
Persons. 

j   10.     Lavir   Partnerships   and   Associations. 

§  11.  Public  Attorneys. — Attorneys  Gener- 
al; District  or  Local  Attorneys;  Particular 
States. 


§  1.  Admission  to  practice  and  license  taxes. — The  right  to  practice  law  is 
not  a  natural  one,  and  females  cannot  be  admitted  except  by  statutory  authority; 
and  a  statute  not  expressly  authorizing  their  admission  cannot  be  so  construed, 
since  it  is  in  derogation  of  the  common  law,  under  which  they  were  not  eligible;^ 
and  a  law  authorizing  admission  of  members  of  the  bar  of  other  states  under  cer- 
tain conditions  will  not  authorize  their  admission,  though  members  of  the  bar 
elsewhere.^  An  unmarried  woman  cannot  be  admitted  in  Tennessee  to  practice 
in  the  supreme  court.*  A  law  permitting  admission  of  attorneys  from  another 
state  without  examination  does  not  change  the  requirement  of  another  law » that 
they  should  be  citizens  of  the  United  States.'^  A  judgment  rendered  in  an  action 
in  a  municipal  court  in  New  York,  defended  by  one  not  a  party  and  not  regularly 
admitted  to  practice,  is  void.' 

In  Maryland  a  purchaser  at  a  foreclosure  sale  may  file  exceptions  to  a  re- 
sale signed  by  himself,  and  not  by  the  solicitor.''  One  who  wrongfully  procures 
admission  should  be  disbarred.^ 

A  license  on  the  vocation  may  be  imposed  on  lawyers  by  a  city  ordinance  un- 
der statutory  authority,®  but  it  cannot  now  be  imposed  in  California,  either  for 


1.  Questions  relating  to  attorneys  In  fact 
(Agency),  appointment  of  counsel  for  per- 
sons charged  with  crime  (Criminal  Proce- 
dure), conduct  and  argument  of  counsel  in 
civil  cases  (Argument  of  Counsel,  Trial), 
or  criminal  proceedings  (Criminal  Proce- 
dure), or  presence  of  special  counsel  before 
the  grand  jury  (Grand  Jury),  will  be  treated 
under  topics   indicated. 

2.  Code  Md.  art.  10.  §  3,  as  amended  by 
Act  1898,  c.  139.  and  Code  Md.  art.  1,  §  6 — 
In  re  Maddox.,   93  Md.   727. 

3.  Code  Md.  art.  10,  §  6,  as  amended  by 
Act  1898 — In  re  Maddox,  93  Md.  727. 


4.  Ex  parte  Griffin    (Tenn.)    71    S.   W.   ".iC. 

5.  Act  1895  (Wash.)  §  6,  as  j^ffected  by 
Act  Feb.  16.  1897  (Laws  1897,  p.  12),  amend- 
ing Laws  1895,  p.  178 — In  re  Takuji  Yam- 
ashita    (Wash.)    70    Pac.    482. 

6.  Code  Civ.  Proc.  §§  63,  64 — Kaplan  v. 
Berman.  37  Misc.  Rep.   (N.  T.)   502. 

7.  Under  Code  Md.  art.  16,  §§  126,  166, 
186,  authorizing  appearance  of  a  party  for 
himself  in  equity  in  certain  cases — Aukara 
V.    Zautzinger,    94   Md.    421. 

8.  Neff  V.  Kohler  Mfg.  Co.,  90  Mo.  App. 
296. 

9.  So  in  Virginia   (Code,  8  1040) — Blanch- 


(261) 


262 


ATTORNEYS  AND  COUNSELORS. 


§  2 


purposes  of  revenue,"  or  as  a  reg-ulation  of  business."  A  municipal  license  is 
not  required  of  an  attorney  whose  place  of  business  or  residence  is  not  in  tlie 
municipality,  or  who  does  not  hold  himself  out  as  practicing  before  its  bar.^' 
Services  which  may  be  performed  as  well  by  a  layman  as  a  lawyer  will  not  require 
a  license.^' 

§  2.  Privileges,  disalilitics,  exemptions  and  liabilities;  general  poivers  of 
the  vocation. — An  attorney  who  is  also  a  notary  may  take  the  affidavit  of  his  client 
for  service  by  publication."  A  law  requiring  an  attorney  bringing  suit  for  a 
nonresident  to  be  liable  for  costs  will  not  apply  where  the  suit  is  for  several  plain- 
tiffs, part  of  whom  are  nonresidents."  An  attorney  in  the  United  States  courts 
is  an  officer  liable  to  contempt  for  misbehavior."  Acceptance  by  an  attorney  of 
a  trusteeship  in  bankruptcy  is  a  surrender  of  his  power  to  represent  creditors  as 
an  attorney."  A  statute  prohibiting  an  attorney  from  acting  as  surety  on  an 
undertaking  in  a  suit  or  proceeding  applies  to  an  injunction  bond."  Attorneys 
must  refrain  from  offensive  language  to  court,  opposing  counsel,  or  witnesses." 

§  3,  Suspension  and  disbarment. — Disbarment  is  not  punishment,  but  an 
exercise  of  the  court's  discretion  in  determining  whether  the  attorney  is  a  proper 
person;  and  the  power  to  disbar  is  distinct  from  power  to  punish  for  contempt, 
though  the  same  causes  may  be  ground  for  both.-*'  Statutory  authority  is  un- 
necessary.*^ In  North  Dakota,  the  proceedings  should  begin  in  the  district  court 
unless  the  offense  was  committed  in  the  supreme  court,  or  with  reference  to  its 
proceedings.-^  The  supreme  court  of  South  Carolina  has  jurisdiction  of  disbar- 
ment proceedings.^'  The  exclusive  original  jurisdiction  of  the  Louisiana  supreme 
court  over  professional  misconduct  does  not  apply  to  nonprofessional  misconduct.^* 
The  proceedings  are  not  criminal,  and  may  be  brought  in  the  chancery  branch  of 
the  district  court. ^"^  Disbarment  proceedings,  and  not  a  motion  to  vacate  an  order 
licensing  an  attornev,  is  the  proper  remedy  for  fraud  and  false  representations  in 
securing  such  order.** 

Grounds. — The  courts  are  not  confined  to  the  statutory  grounds  of  disbar- 
ment.*^ Charges  against  an  attorney  must  affect  his  professional  fitness,  and  not 
merely  his  character  as  a  citizen.-^     Misappropriation  of  a  client's  money;**  or 


ard  V  Bristol  (Va.)  41  S.  E.  948,  citing 
many  cases.  The  Portland.  Oregon,  council 
Is  authorized,  under  the  city  charter,  to  im- 
pose a  license  tax  on  attorneys  practicing 
in  the  city,  notwithstanding  their  general 
license  to  practice,  the  city  tax  being  on 
the  occupation  (construing  Portland  City 
Charter,  §  32.  subds.  1-4,  33)— Lent  v.  Port- 
land   (Or.)    71   Pac.   645. 

10.  Act  March  23.  1901  (Pol.  Code  Cal.  § 
8366)  impliedly  repealed  the  power  of  mu- 
nicipalities to  license  for  other  purposes 
than  regulation— City  of  Sonora  v.  Curtin, 
137  Cal.  583.  70  Pac.  674. 

11.  Under  St.  Cal.  1883.  p.  93.  §  862,  subd. 
10  'empowering  municipalities  to  license 
"for  regulation  and  revenue"— City  of  Sonora 
V    Curtin.   137   Cil.    583.   70  Pac.   674. 

'lo  Evidence  merely  that  he  was  a  lawyer, 
and^'practiced  in  trial  of  three  cases  during 
the  month  given  In  the  complaint^  is  i_n- 
Bufficient— Ahlrichs  v.  Cullman,  130  Ala.  6.4. 
13  St  Ky  §  100.  Securing  reduction  of 
tax  claim  for  another— Dunlap  v.  Lebus,  23 
Ky.  Law  Rep.  1481,   65   S.  W.   441. 

14.  Genest  v.  Las  Vegas  Masonic  Bldg. 
Ass'n    (N.   M.)    67   Pac.    743. 

15.  Civ.  Code  Ga.  §  5387— Berrle  V.  Atkin- 
son,  114  Ga.   708. 


-Ex  parte  Davis, 


18. 
19. 
20. 
21. 
22. 


16.  Rev.   St.   U.   S.    §  725- 
112   Fed.   139. 

17.  In  re  Evans,  116  Fed.  909. 
Dennett  v.   Reisdorfer,   15  S.   D.   466. 
In  re  Voss   (N.  D.)    90  N.  W.   15. 
In  re  Adriaans,   17  App.  D.  C.  39. 
State  V.   Gebhardt,    87  Mo.   App.   542. 
Rev.    Codes   N.    D.    1899.   §§   434-437 — In 

re  Freerks  (N.  D.)   90  N.  W.   265. 

23.  In   re  Duncan,   64   S,   C*.    461. 

24.  The  supreme  court  has  such  jurisdic- 
tion, by  Const,  art.  85,  and  nonprofessional 
misconduct  is  in  the  jurisdiction  of  the  dis- 
trict court,  under  Act  No.  129,  1896 — State  v. 
Fourchy,  106  La.   743. 

2,'.  Const.  Ky.  §  137 — Commonwealth  v. 
Richie,  24  Ky.  Law  Rep.  1218,  70  S.  W.  1054. 

26.  NeCf  V.  Kohler  Mfg.  Co.,  9ty  Mo.  App. 
296. 

27.  State  V.   Gebhardt,   87  Mo.  App.   542. 

28.  Neff  V.  Kohler  Mfg.  Co.,  90  Mo.  App. 
296. 

Ground  of  disbarment  must  show  either 
conviction  of  crime  or  evidence  of  Its  com- 
mission or  fraud  amounting  to  moral  turpi- 
tude— In  re  Cahill.   66  N.  J.  Law,  527. 

29.  In  re  Bearnes  (Minn.)  92  N.  "W.  466; 
Southworth    v.    Bearnes    (Minn.)    Id. 


§3 


SUSPENSION   AND   DISBARMENT. 


263 


advertisement  by  an  attorney  who  agrees  to  obtain  divorces  in  violation  of  law;^° 
or  misrepresentation  amounting  to  fraud  in  collection  of  debts,  whereby  he  re- 
tained more  than  his  proper  contingent  fee;^^  or  fraudulent  acts  regarding  a  sale 
of  lands,  and  acceptance  of  pa3rment  therefor  after  he  had  parted  with  the  title  ;^- 
or  substantial  alteration  or  destruction  of  a  transcript  of  testimony  by  an  attor- 
ney who  afterwards  certified  its  genuineness;^^  or  fraudulent  use  of  a  judgment 
by  introduction  of  unauthorized  provisions,  whereby  he  obtains  money  from  the 
county  treasury;**  or  retention  of  a  client's  money  after  collection,  and  continual 
misrepresentation  regarding  his  collection  of  claims  and  pa5Tnent  to  the  client;^' 
or  filing  a  motion  in  arrest  of  judgment  falsely  charging  court  officers  with  usurpa- 
tion of  office  and  improper  interest,  though  the  attorney  stated  he  believed  them 
true  when  made  f^  or  obtaining  a  license  on  presentation  of  a  license  from  another 
state,  which  he  knew  had  been  revoked,  especially  where  his  conduct  since  admis- 
sion has  been  immoral  and  reprehensible;*^  or  obtaining  admission  on  an  original 
certificate  of  admission  from  another  state,  which  had  been  revoked,  and  a  certifi- 
cate of  good  moral  character  from  a  person  in  that  state  who  did  not  know  of  the 
revocation;*®  or  presentation  by  an  attorney  from  another  state,  who  asks  for  ad- 
mission to  the  bar,  of  a  forged  letter  of  recommendation  by  a  local  firm,  though 
the  forgery  was  made  by  him  under  the  impression  that  the  firm  would  approve 
his  action,*® — constitutes  sufficient  grounds  for  disbarment.  Frequenting  a  gam- 
bling house  to  play,  and  willful  refusal  to  prosecute  the  proprietor,  or  neglect  to 
prosecute  offenders  when  proofs  are  furnished  him,  or  to  proceed  to  abate  public 
nuisances  under  the  statute,  is  such  moral  turpitude  as  justifies  suspension  of  a 
state's  attorney  from  practice/'^  Ketention  of  money  may  be  unprofessional,  though 
not  embezzlement.*^  It  does  not  matter  that  a  false  statement  in  a  motion  did 
not  amount  to  a  technical  or  indictable  crime.*^ 

Censurable  conduct. — Disbarment  is  not  called  for  by  misconduct  previous  to 
admission,**  or  deposit  of  a  client's  money  as  his  own,  and  drawing  it  for  his  own 
use,**  or  a  transfer  of  property  inconsistent  with  a  purpose  to  obtain  title  for  his 
client,*'*  or  neglect  to  notify  his  client  of  the  collection  of  monej'',  or  to  pay  it  over 
immediately,  there  being  no  fraud  or  deceit,*'  or  advising  and  assisting  his  client 
to  disregard  and  oppose  an  order  for  appointment  of  a  receiver  pending  appeal,*^ 
though  these  acts  are  deserving  of  censure. 


30. 
31. 

1115. 
32. 
83. 


People  V.  Smith,   200   111.   442. 

In    re    Weed,    26    Mont.    507,    68    Pac. 


In  re  Weed.  26  Mont.  507,  68  Pac.  1115. 

Withdrawing  from  the  transcript  tes- 
timony as  to  talks  with  one  accused  of  homi- 
cide after  the  crime,  and  substitution  of 
other  statements  therefor,  was  a  material 
alteration — Ex  parte  St.  Rayner  (Or.)  70  Pac. 
537. 

34.  Rev.  Codes  N.  D.  1899.  §  427,  subd.  3, 
and  §  428 — In  re  Freerks  (N.  D.)  90  N.  W. 
265,  holding  that  the  fact  that  attorney  be- 
lieved he  had  a  valid  claim  may  be  consid- 
ered by  the  court  in   mitigatior. 

35.  People  V.  Keigan   (Colo.)   69  Pac.  524. 
;»«.     In  re  Adriaans.  17  App.  D.  C.  39. 

37.  People   V.    Hahn,   197    111.    137. 

38.  Admission  of  attorneys  from  other 
states  under  Rev.  Codes  N.  D.  1899.  §§  421, 
424 — In  TO  Olmstead   (N.   D.)    91  N.   W.   943. 

30.  Cod}  Civ.  Proc.  Mont.  §  394,  and  su- 
preme court  rule  22,  require  statutory  evi- 
dence of  good  moral  character  as  requisite 
for    admission    to    the    bar    on    license    from 


a     foreign     Jurisdiction  —  In     re     Woodward 
(Mont.)    71  Pac.   161. 

40.  Rev.  Codes  N.  D.  1S99,  §§  7243,  7620, 
c.  63.  The  violation  of  oath  and  refusal  to 
obey  the  statute  Is  a  misdemeanor — In  re 
Voss  (N.  D.)    90  N.  W.  15. 

41.  The  attorney  kept  the  client's  funds 
provided  to  bring  suit  on  false  representa- 
tion that  he  had  done  so.  even  after  she 
learned  the  truth,  and  intrusted  the  case  to 
another  attorney — People  v.  Mead,  29  Colo. 
344.    68    Pac.    241. 

42.  The  only  question  to  be  considered 
is  the  personal  fitness  of  the  attorney  to  be 
a  member  of  the  bar — In  re  Adriaans,  17  App. 
D.   C.    39. 

43.  State  V.   Gebhardt.   87  Mo.   App.   542. 

44.  In  re  Duncan,  64  S.  C.  461. 

45.  Code  Civ.  Proc.  Mont.  §  402,  providing 
for  disbarment  for  felony,  etc.,  construed 
with  Comp.  St.  1887,  div.  4,  §  200,  making 
fraudulent  transfer  of  property  a  felony — 
In   re  Weed,   26   Mont.    241.   67   Pac.   308. 

4G.     In   re  Veeder   (N.  M.)    66  Pac.   545. 
47.     Coffin    v.    Burstein,    68    App.    Div.    (N. 
T.)    22. 


264 


ATTORNEYS  AND  COUNSELORS. 


§   3 


Defense  or  excuse. — The  attorney  cannot  prevent  disbarment  by  an  offer  to 
restore  money  converted  by  him.**  The  question  of  privilege  cannot  be  urged 
to  excuse  falsifications  in  motions.*"  An  attorney  who  appeared  in  his  own  de- 
fense in  disbarment  proceedings  in  which  his  license  was  revoked  cannot  plead 
ignorance  of  sucli  revocation  in  subsequent  disbarment  proceedings  against  him 
in  another  state  for  procuring  a  license  by  means  of  the  former  revoked  license.^" 

Proceedings  in  general. — Disbarment  proceedings  are  not  barred  as  ex  delicto 
actions/^  and  are  not  affected  by  bar  of  criminal  prosecution  for  the  same  offense.^* 
In  Louisiana  a  change  in  statutory  procedure  cannot  retroact.^^ 

The  proceedings  are  most  properly  begun  by  a  majority  of  the  bar/*  and 
should  be  entitled  in  the  matter  of  the  accused,  and  not  as  the  state  against  him.^' 
The  mailing  of  an  affida\it,  charging  misconduct  of  an  attorney,  to  a  judge  in 
vacation,  will  authorize  him,  on  sitting  as  a  court,  to  direct  proceedings  and  ap- 
point attorneys  to  prosecute.*® 

The  information  must  be  certain  and  definite.'*^  A  petition  on  the  ground 
of  a  statutory  crime  must  allege  specifically  the  facts  constituting  such  crime.*^ 
It  must  ordinarily  be  verified  by  the  oath  of  some  person  not  upon  mere  informa- 
tion and  belief,*"  unless  verification  is  excused  for  good  cause.®"  Neither  petition 
nor  information  need  be  verified  where  instituted  by  the  state  bar  association  to 
the  supreme  court,  and  thereon  information  is  prepared  by  the  attorney  general."^ 

Evidence.^^ — In  a  proceeding  on  the  ground  of  retention  of  a  client's  money, 
a  demand  for  the  money  must  be  shown,  unless  false  representations  of  the  attor- 
ney have  led  the  client  to  believe  that  no  moneys  have  been  collected."^  In  pro- 
ceedings to  disbar  an  attorney  admitted  on  license  from  another  state,  a  copy 
of  disbarment  proceedings  in  the  other  state,  showing  a  judgment  finding  him  guilty 
of  moral  turpitude,  is  sufficient  to  show  want  of  good  moral  character.®* 

Suspension  pending  trial. — If  he  is  accused  of  crime  as  ground  of  disbarment, 
he  can  only  be  suspended  until  the  facts  are  ascertained  as  required  by  the  stat- 
ute." 

Hearing  and  trial. — The  attorney  accused  is  not  entitled  to  be  present  at  the 
hearing  of  the  charges  against  him  by  a  commission  created  by  the  supreme 
court.®®  The  evidence  may  be  heard  by  referee  and  report  made  to  the  court.®^ 
The  attorney's  witnesses  may  be  examined  in  open  court.®® 

Decision  and  judgment;  disbarment,  reprimand  or  suspensions. — A  proceeding 


48.  In  re  Z ,  89  Mo.  App.  426. 

49.  In  re  Adriaans,   17   App.   D.   C.   39. 

50.  People  V.  Hahn,  197  111.  137. 

51.  The  proceedings  li*  on  a  violation  of 
the  attorney's  obligation  under  his  license, 
and  do  imt  constitute  an  action  ex  delicto — 
State  V.   Foiirchy,  106  La.   743. 

52.  In  re  Weed.  26  Mont.  507,  68  Pac.  1115. 

53.  State  V.  Fourchy,  106  La.   743. 

64.  In  re  Duncan.  64  S.  C.  461. 

65.  The  proceeding  Is  in  the  nature  of  a 
rule  to  show  cause  why  his  name  should 
not  be  stricken  from  the  rolls — Hyatt  v. 
Hamilton   County    (Iowa)    90   N.   "W.    508. 

50.  In  the  name  of  the  state  (Code,  §  325) 
— State  V.  Tracy.  115  Iowa,  71. 

57.  Merely  charging  that  money  accounts 
were  placed  with  the  attorney,  and  that  he 
appropriated  the  collection,  is  Insufficient — 
State  V.  Gebhardt,  87  Mo.  App.   542. 

58.  Code  Civ.  Proc.  Mont.  §  402,  providing 
grounds  for  disbarment.  Fraudulent  trans- 
fer of  property  constituting  a  felony,  under 
Comp.   St.   Mont.   1887,   div.   4,   §   200,   in  which 


the    word    "or"    should    be    read    "if" — In    re 
Weed,   26  Mont.   241,   67  Pac.   308. 

59.  Code  Civ.  Proc.  §  420 — In  re  Weed,  26 
Mont.   241,   67   Pac.  308. 

60.  State  V.  Gebhardt,  87  Mo.  App.  542. 

61.  People  V.  Mead,  29  Colo.  344,  68  Pac. 
241. 

62.  Sufficiency  of  evidence  in  disbarment 
— In  re  Bearnes  (Minn.)  92  N.  W.  466;  South- 
worth  V.  Bearnes  (Minn.)  Id.  Of  fraudulent 
deception  as  ground  for  disbarment— State 
V.  Fourchy,  106  La.  743.  Of  tampering  with 
records — Ex  parte  St.  Rayner  (Or.)  70  Pac. 
537. 

63.  Repeated  calls  by  the  client,  which 
were  understood,  constitute  sufficient  demand 
— People  V.  Keigan   (Colo.)   69  Pac.  524. 

04.     People  V.  Miller.  195  in.  621. 

65.  Rev.  St.  Mo.  1899.  §§  €929,  4930 — State 
V.  Gebhardt,   87  Mo.   App.   542. 

66.  State  v.  Fourchy.  106  La.  743. 

67.  People  v.  Mead,  29  Colo.  344,  68  Pac. 
241. 

68.  In  re  Duncan,    64   S.   C.    461. 


§ 


CREATION  OF  RELATION;    CHANGES. 


2b5 


on  the  ground  of  conversion  of  a  client's  money  cannot  be  dismissed,  though  in- 
stituted merely  to  coerce  payment  by  the  attorney.^^  An  attorney  should  not  al- 
ways be  disbarred,  though  he  may  be  liable  to  censured"  Improper  retention  of 
money  belonging  to  his  client,  by  an  attorney  who  employs  subterfuge  to  prevent 
payment  and  proceedings  against  him,  will  warrant  suspension  for  six  months.''* 
Collusion  of  parties  to  effect  a  dissolution  of  marriage  witli  knowledge  of  their 
attorney  is  not  cause  for  disbarment,  though  ground  for  temporary  suspension.''^ 
In  Iowa,  where  the  attorney  is  found  not  guilty,  a  judgment  for  costs,  and  that 
he  should  be  reprimanded,  cannot  be  rendered  on  dismissal.''*  An  order  of  dis- 
barment or  suspension,  made  without  application  and  notice  to  the  attorney,  may 
be  reviewed  on  writ  of  review  (certiorari).^*  A  disbarment  judgment  for  con- 
tempt is  not  conclusive  against  the  attorney  in  subsequent  proceedings  based  upon 
the  same  charges,  which  included  professional  misconduct,  since  the  two  are  dis- 
tinct offenses.''* 

Reinstatement. — A  court  with  power  to  suspend  or  disbar  an  attorney  may 
reinstate  him  on  proper  proof  that  he  has  become  a  proper  person.  Where  a  re- 
port of  a  committee  on  a  motion  for  reinstatement  shows  that  the  applicant  has 
regretted  his  past  misconduct,  and  has  no  financial  entanglements  connected  with 
such  acts,  he  may  be  restored  to  practice,  but  proof  of  subsequent  good  character 
must  be  sufficient  to  overcome  the  judgment  of  disbarment.''^  An  attorney  dis- 
barred for  larceny  while  drunk  may  be  reinstated  on  proper  showing  of  reform. 
His  application  for  reinstatement  must  be  under  oath,  must  set  forth  the  facts  con- 
cerning the  disbarment  proceedings,  the  causes  for  reinstatement,  and  comply  with 
rules  for  first  admission  of  attorneys.^'  He  will  not  be  reinstated  on  petition  of 
others,  but  must  appear  in  person  or  by  his  own  petition.''* 

§  4.  Creation  and  nature,  termination  and  change  of  the  relation. — A  war- 
rant of  attorney  is  an  instrument  authorizing  an  attorney  to  appear  for  the  maker 
or  to  confess  judgment  against  him.'"  An  agreement  between  an  attorney  and 
another,  whereby  the  attorney  was  to  procure  the  services  of  another  attorney  to 
prosecute  certain  claims,  does  not  create  the  relation  of  attorney  and  client  between 
the  two  attorneys,  so  as  to  enable  the  first  to  recover  a  contingent  fee  from  the  sec- 
ond in  summary  proceedings ;  nor  does  the  fact  that  the  first  attorney  had  formerly 
performed  work  under  an  original  retainer  to  prosecute  the  same  suits  raise  the 
relation  of  attorney  and  client.*"  It  will  not  be  presumed  that  a  husband  has 
authority  to  employ  an  attorney  for  his  wife  from  their  relations,  and  because  he 
made  a  contract  for  her  separate  estate,**  nor  because  he  was  executor  of  a  will 
under  which  she  was  legatee  and  trustee.*^  A  contract  authorizing  an  attorney 
to  bring  an  action  for  a  husband  for  personal  injuries  to  his  wife  will  not  authorize 
the  attorney  to  proceed  in  behalf  of  the  wife.**  Where  three  attorneys  are  em- 
ployed by  several  defendants,  testimony  of  one  attorney  that  one  defendant  had 


G9.  In  re  Z ,  89  Mo.  App.  426. 

70.  State  v.  Fourchy,  106  La.  743. 

71.  Rev.  St.  Mo.  1899.  §§  4924,  4930,  4931— 
In  re  Z ,  89  Mo.  App.  4  26. 

72.  In  re  Cahill,  66  N.  J.  Law,  527. 

73.  Code,  §§  323,  324.  A  judgment  in  such 
terms  Is  appealable — State  v.  Tracy,  115  Iowa, 
71. 

74.  McNamee  v.  Steele  (Idaho)  69  Pac. 
319;  Goode  v.  Steele    (Idaho)    Id. 

75.  The  contempt  consisted  in  procuring 
approval  of  a  worthless  appeal  bond  by  a 
false  affidavit — People  v.  O'Brien,  196  III.  250. 


In  re  Simpson  (N.  D.)  93  N.  W.  918. 
In  re  Newton  (Mont.)  70  Pac.  510. 
In  re  Wellcome,  25  Mont,  l^l,  69  Pac. 


76. 

77. 
78. 
836. 

79.  Treat   v.    Tolman    (C.    C.   A.)    113    Fed. 
892;   Cyc.   Law  Diet.    "Warrant  of  Attorney." 

80.  In  re  Hirshbach,  72  App.  Div.   (N.  Y.) 
79. 

81.  Cushman  v.  Masterson  (Tex.  Civ.  App.) 
64  S.  W.  1031. 

82.  Sowles  V.  Hall,  73  Vt.  65. 

83.  Whitesell  v.  New  Jersey  Ferry  Co.,  68 
App.  Div.   (N.  Y.)   82. 


266 


ATTORNEYS  AND  COUNSELORS. 


8  5 


not  employed  him  is  insufficient  alone  to  establish  that  the  other  aitomeys  had  no 
authority  to  appear  for  such  defendant.** 

Discharge  and  substitution. — A  party  may  discharge  his  attorney  or  solicitor, 
and  the  latter  has  no  further  authority  in  the  cause/^  and  notice  thereof  may  be 
given  by  bringing  an  action  to  restrain  the  attorney  from  collecting  a  judgment 
obtained;*^  but  parties  dealing  with  the  attorney  are  not  affected  by  the  discharge 
without  notice.®^  After  judgment,  the  attorney  of  record  may  be  treated  by  the 
adversary  as  still  in  that  relation,  in  absence  of  notice  of  change.^^  A  client  who 
allows  an  attorney  to  continue  to  act  for  him  thereby  withdraws  notice  of  dis- 
charo-e.*®  An  attorney  who  notifies  his  client  that  he  will  not  proceed  further, 
after  verdict  obtained  is  reversed  on  appeal,  discharges  himself,  and  cannot  ob- 
ject.®"* A  mother's  retainer  of  an  attorney  to  sue  for  injuries  to  her  child  does 
not  bind  her  when,  as  guardian,  she  employs  a  different  attorney  to  sue.^^ 

A  change  of  attorneys  may  be  made  at  any  time  by  securing  the  fees  of  those 
who  have  acled.'^  That  an  attorney  had  advanced  expenses  of  an  action  brought 
on  a  contingent  fee,  and  his  client  was  unable  to  repay  them,  will  not  prevent  sub- 
stitution of  another  attorney  by  order  of  court  on  proper  application  and  notice." 
On  dissolution  of  partnership  of  attorneys,  one  of  them  may  be  substituted  for  the 
urm  on  his  client's  consent  if  no  lien  of  the  firm  at  date  of  substitution  is  preju- 
diced.®* 

!Mere  delivery  of  a  referee's  report  may  be  made  by  a  new  attorney  without 
a  substitution.®' 

Only  reasonable  notice  of  a  motion  for  change  of  attorneys  is  necessary,  no 
special  mode  being  required.®'  On  motion  for  substitution  the  court  must  con- 
sider a  contract  between  the  client  and  attorney  for  compensation  on  quantum 
meruit,  where  the  client  had  authority  to  make  the  contract.®^  "Where  a  second 
motion  charges  bad  faith  and  alleges  full  payment  for  services,  the  question  of 
bad  faith  already  considered  on  the  first  motion  need  not  be  reconsidered.®^  When 
the  matter  of  compensation  will  be  within  control  of  the  court,  apportionment 
of  it  may  be  reserved  in  the  order  of  substitution  until  final  determination  of  the 
case.®® 

§  5.  Rights,  duties,  and  liahilities  between  attorney  and  client  generally; 
loyalty  and  good  faith. — The  attorney  for  two  parties  cannot  serve  notice  on  one 


84.  Patterson  v.  Yancey  (Mo.  App.)  71 
S.  "W.  845. 

A  reference  may  be  had  on  the  question 
of  employment,  where  evidence  Is  conflict- 
ing— In  re  Hammann,  37  Misc.  Rep.  (N.  T.) 
417. 

85.  Lynch  v.  Lynch,  99  111    App.  454. 

86.  O'Neal  v.  Spalding.  23  Ky.  Law  Rep. 
1729,  66  S.  W.  11. 

87.  Milliken  v.  McBroom,  38  Mo.  342.  The 
rule  applies  to  the  attorney  of  record,  even 
after  judgment — Belle  City  Mfg.  Co.  v.  Kemp. 
27  V\"ash.  111.  67  Pac.  580. 

SS.  Belle  City  Mfg.  Co.  v.  Kemp,  27  Wash. 
111.   67  Pac.   580. 

89.  Steinson  v.  Board  of  Education,  78 
N.  Y.  Supp.  703. 

90.  Fargo  V.  Paul,  35  Misc.  Rep.  (N.  Y.) 
568. 

91.  Bryant  v.  Brooklyn  Heights  R.  Co.,  64 
App.   Div.    (N.   Y.)    542. 

93.  If  the  attorneys  have  been  guilty  of 
misconduct,  security  Is  unnecessary — O'Sul- 
llvan  V.  Metropolitan  St.  Ry.  Co.,  39  Misc. 
Rep.   (N.  Y.)   268. 


93.  Substitution  in  ejectment  suit  where 
the  attorney  had  no  interest  in  the  land  un- 
der Code  Civ.  Proc.  §  2S4 — Gage  v.  Atwater, 
136  Cal.  170,  68  Pac.  581. 

94.  Schneible  v.  Travelers'  Ins.  Co..  3« 
Misc.   Rep.    (N.   Y.)    522. 

95.  Code  Civ.  Proc.  N.  Y.  §  65,  requiring 
thirty  days'  notice,  and  §  1019.  requiring  a 
referee's  report  to  be  filed  within  sixty  days 
after  submission — Agricultural  Ins.  Co.  v. 
Darrow,   70  App.   Div.    (N.   Y.)   413. 

96.  2  Ball  Ann.  Codes  &  St.  "Wash.  §  4769 — 
Schultheis  v.  Nash.  27  Wash.  250.  67  Pac.  707. 

97.  Authority  of  client  to  ask  for  substi- 
tution under  2  Ball.  Ann.  Codes  &  St.  Wash. 
?§  4769.  6402,  6405 — Schultheis  v.  Nash,  27 
Wash.   250.   67  Pac.   707. 

98.  2  Ball.  Ann.  Codes  &  St.  Wash.  §  4769. 
The  guardian  m.oved  for  a  change  for  bad 
faith,  and,  this  failing,  moved  secondly  for 
bad  faith,  and  alleged  full  payment  for  serv- 
ices according  to  the  statute — Schultheis  v. 
Nash,   27  Wash.   250,   67  Pac.   707. 

99.  Bryant  v.  Brooklyn  Heights  R.  Co., 
64    App.    Div.    (N.   Y.)    542. 


§  5 


GOOD  FAITH;    NEGLIGENCE, 


2b7 


on  behalf  of  another.*  The  burden  is  on  the  attorney  to  show  that  his  client  was 
not  prejudiced  by  adverse  dealings,  and  that  no  information  was  withheld  which 
he  should  have  known.  ^  Profits  realized  by  an  attorney  in  dealing  with  the  as- 
sets of  an  estate  may  be  recovered  by  the  heirs,  though  he  was  not  guilty  of  fraud. 
He  may  retain  profits  made  by  the  purchase  of  stock  from  an  administrator  in 
regard  to  which  he  did  not  represent  the  estate.^  An  attorney  may  represent  a 
bankrupt,  and  also  serve  the  trustee  in  bankruptcy  (collecting  debts)  if  no  ad- 
verse interests  clash;  hence  fees  paid  cannot  be  recovered.*  It  is  not  fraud  for 
the  attorney  of  an  administrator  to  bring  suit  for  another  to  enforce  specific  per- 
formance of  a  contract  by  the  decedent  to  will  hig  estate  to  the  plaintiff,  where 
the  suit  affects  only  the  residue  after  administration.^  ^Yhe^e  an  attorney  has  re- 
duced a  claim  sent  to  him  to  judgment,  he  may  assert  against  the  clients  a  prior 
mortgage  from  the  debtor,  though  he  did  not  notify  his  clients  of  the  existence 
of  such  mortgage,  where  the  failure  to  give  them  notice  did  not  prejudice  them.® 
Attorneys  who  prosecuted  an  action  for  an  infant  for  a  contingent  fee  were  liable 
for  fraud  of  their  clerk  in  negotiating  a  settlement,  whereby  more  money  was  re- 
tained from  the  amount  paid  than  the  agreed  fee,  though  they  acted  honestly,  and 
attempted  to  discharge  their  liability  by  refunding  the  excess  to  the  clerk.''  A 
failure  to  pay  over  money  on  demand  which  an  attorney  had  collected  for  a  client 
and  deposited  to  his  own  credit  is  breach  of  contract  and  not  conversion.' 

Diligence. — An  attorney  is  liable  for  lack  of  such  skill  and  diligence  as  is 
commonly  possessed  and  exercised  by  members  of  the  profession,  but  not  for  mere 
mistake  of  judgment  as  to  the  law,  if  he  enfployed  ordinary  care  in  learning  the 
facts,  and  a  bond  for  faithfulness  does  not  extend  this.®  He  is  put  on  inquiry  as 
to  all  proceedings  had  in  respect  to  the  matter  of  his  engagement,  which  he  has 
a  right  and  opportunity  to  know,  regardless  of  a  practice  not  to  give  out  informa- 
tion, and  of  the  contributing  negligence  of  one  of  several  injured  clients.^" 

Damages  for  negligence. — In  an  action  for  negligence  of  attorneys  in  failing 
to  appear  in  another  action,  evidence  of  the  amount  involved  in  the  later  action, 
or  of  the  costs  paid,  cannot  be  given  on  the  question  of  damages.**  The  propor- 
tion which  would  have  been  a  contingent  fee  will  be  deducted  in  assessins:  what 
might  have  been  recovered  but  for  negligence.** 

Evidence  of  negligence. — A  client  suing  an  attorney  for  failure  to  bring  an 
action  must  prove  that  a  cause  of  action  existed,  and  the  negligence  of  the  at- 
torney.*' On  the  question  of  negligent  on^ission  to  proceed,  it  is  relevant  that  like 
proceedings  were  successful.** 

Dealings  between  atiorney  and  client. — Though  such  dealings  are  regarded 
with  suspicion,  and  will  not  stand  against  the  prejudice  of  his  client,  the  attorney 
may  contract  with  his  client  or  the  adverse  party  concerning  the  subject-matter 


1.  Bennett  v.  Weed,  38  Misc.  Rep.  (N.  Y.) 
290. 

An  adverse  dealing  to  one  client's  Inter- 
ests on  behalf  of  another  may  be  repudiated 
on  returning-  what  was  received — Hare  v. 
De  Young,  39  Misc.  Rep.   (N.  Y.)   366. 

2.  Vanasse  v.   Reld.   Ill   Wis.   303. 

3.  Beale  v.  Barnett,  23  Ky.  Law  Rep.  1118, 
64  S.  W.   838. 

4.  Keyes   v.   McKerrow,   180   Mnss.    261. 

6.  McCabe  v.  Healy   (Cal.)   70  Pac.  1008. 
e.     State  V.  Fidelity  &  Deposit  Co.,  94  Mo. 

App.    184. 

7.  In  re  McGuinness,  69  App.  Div.  (N.  Y.) 
606. 

8.  Jackson  t,  Moore,  72  App.  Div.  (N.  Y.) 
217. 


9.  Bonding  him  to  faithfully  act — Hum- 
boldt Bldg.  Ass'n  V.  Ducker,  23  Ky.  Law  Rep. 
1073,    64    S.   W.    671. 

10.  Attorneys  for  Importers  protesting 
against  Imposition  of  customs  must  take  no- 
tice of  appraiser's  adverse  decision  In  time 
to  act — Chllds  v.  Comstock,  69  App.  Div. 
(N.    Y.)    160. 

11.  Cornellssen  v.  Ort,  9  Detroit  Leg. 
News,    604. 

12.  Childs  V.  Comstock,  69  App.  Div.  (N. 
Y.)    160. 

13.  Keith  V.  Marcus,  181  Mass.  377.  Suf- 
ficiency of  evidence  considered — Eberhardt  v 
Harkless,  115  Fed.  816. 

14.  Childs  v.  Comstock,  69  App.  Div.  (N 
Y.)    160. 


268 


ATTORNEYS  AND  COUNSELORS. 


§6 


of  his  employment.^'  An  assignment  of  claims  to  an  attorney  will  be  set  asidfe 
where  he  secured  them  by  fraud.^®  Purchase  of  a  judgment  he  has  secured  is 
presumptively  void,  and  the  attorney  must  show  good  faith  and  sufficient  consid- 
eration.^^ A  conveyance  by  client  to  attorney,  fairly  conducted  on  full  considera- 
tion and  without  undue  influence,  is  valid,^*  and,  if  made  in  settlement  of  fees 
and  loans  made  by  the  attorney,  is  not  presumptively  fraudulent."  A  settlement 
for  services  between  an  attorney  and  client  is  not  void  where  the  client  fully  un- 
derstood the  transaction,  and  was  under  no  disability.^"  An  attorney  cannot  sue 
a  client  on  a  bond  which  accompanied  a  mortgage  held  by  the  attorney  on  laiads 
conveyed  by  the  client,  where  the  attorney  had  promised  to  release  him  in  the  deed 
and  hold  the  grantee  liable,  and  the  client  assumed  and  paid  a  mortgage  on  lands 
received  in  exchange.'^^ 

Accounting  io  client. — Attorneys  must  account  for  the  moneys  of  clients  in 
their  hands,  except  a  reasonable  sum  for  fees  and  expenses. ^^  One  who  acts  as 
attorney,  agent,  and  lender  of  money  to  an  inexperienced  woman  and  her  minor 
children  must  keep  an  intelligent  account  of  the  transaction,  and  can  acquire  no 
advantage  from  failure  to  account.^' 

An  account  rendered  of  money  received  by  an  attorney  on  a  decree  will  not  bind 
the  client  where  it  is  incorrect  and  unexplained.^* 

§  6.  Remedies  between  the  parties.'^^ — One  client  cannot  sue  an  attorney  to 
recover  his  share  of  joint  moneys  collected  by  the  attorney  for  several.^®  An  as- 
signment of  choses  in  action  to  an  attorney  creates  him  a  trustee  for  his  client, 
so  that  a  demand  before  suit  to  recover  the  property  is  unnecessary.^'  Breach  of 
a  nonprofessional  emplo3Tnent  will  be  redressed  by  action.^* 

Pleading. — That  failiire  of  an  attorney  to  perform  certain  acts  was  due  to  an 
honest  mistake  in  judgment  is  pleadable  as  a  matter  of  defense,  and  not  bv  de- 
murrer to  a  petition  alleging  tliat  he  might  have  Imown  of  the  existence  of  the 
facts  by  the  exercise  of  ordinary  care.^' 

Summary  proceedings  or  motions. — The  court  has  summary  power  to  compel 
the  attorney  to  pay  into  court  or  to  the  client  a  fund  received  in  settlement,  though 
the  settlement  was  made  in  another  state.^°  After  the  client  takes  the  attorne}'^:^ 
note  for  the  amount,  they  are  debtor  and  creditor  so  that  payment  cannot  be  en- 
forced by  summary  proceedings;^^  and  they  will  lie  to  compel  an  attorney  to  pav 
disputed  disbursements  to  assisting  counsel  employed  on  a  contingent  fee,  wfien 
the  attorney  has  fully  accounted  to  both  the  client  and  the  counsel.^^  Where  an 
attorney  was  employed  on  a  contingent  fee,  and  there  was  a  dispute  as  to  whether 
it  was  agreed  that  associate  counsel  should  be  paid  from  proceeds  of  the  suit  be- 
fore division,  the  attorney  was  not  guilty  of  illegal  conduct  in  so  paying  the  asso- 


15.  Vnnasse  v.  Reld,  111  Wis.   303. 

16.  Brooks  V.  Pratt  (C.  C.  A.)  118  Fed. 
725;    Same   v.   Gray,   Id. 

17.  Stublnger  v.   Frey    (Ga.)    42   S.   E.   713. 

18.  Tippett  V.  Brooks  (Tex.  Civ.  App.)  67 
S.  W.  512. 

19.  Lindt  v.   Linder    (Iowa)    90  N.  "W.   596. 

20.  Kidd   V.   Williams.    132   Ala,    140. 

21.  Aiken  v.  Van  Wert,  38  Misc.  Rep. 
(N.  T.)   379. 

22.  In  re  Keen,  39  Misc.  Rep.   (N.  T.)   374. 

23.  Brigham  v.  Newton,  106  La,  280. 

24.  In  re  Bolles,  78  App.  Div.  (N.  Y.)  180. 

25.  Suit  to  compel  attorney  to  pay  over 
money  received  for  client — In  re  Martin,  73 
App.  Dlv.    (N.  Y.)    506. 


26. 

217. 

27. 

28. 
417. 

29. 


Jackson  v.  Moore,  72  App.  Dlv.  (N.  Y.) 

Metz  V.  Abney,   64  S.  C.   254. 

In  re  Hammann,  37  Misc.  Rep.  (N.  Y.) 


Suit  against  attorney  employed  to  ex- 
amine titles  for  failure  to  report  existence 
of  liens — Humboldt  Bldg.  Ass'n  v.  Ducker, 
23  Ky.  Law  Rep.   1073,    64  S.  W.   671. 

Complaint  held  sufficient  to  sue  attorney 
for  neg-ligence  in  advising  guardian  as  to 
a  loan  of  Tvard's  money — Gardner  v.  Wood, 
37   Misc.    Rep.    (X.   Y.)    93. 

30.  Compensation  may  be  determined — 
Lynde  v.  Lynde   (N.  J.  Ch.)   50  Atl.   659. 

31.  In  re  Neville,  71  App.  Dlv.   (N.  Y.)   102. 
82.     In  re  Dailey,  65  App.  Dlv.   (N.  Y.)  523. 


§  7 


COMPENSATION  AND  LIEN. 


269 


ciate  counsel;  hence  the  remedy  at  law  should  be  pursued."  A  motion  to  compel 
an  attorney  to  pay  over  moneys  improperly  retained  is  entertained  and  allowed  at 
the  court's  discretion,^*  though  he  was  not  guilty  of  bad  faith  in  withholding  it.^" 
The  security  provided  by  statute  as  a  condition  precedent  to  compelling  an  attor- 
ney to  account  for  moneys  in  his  hands  is  not  necessary  before  proceeding  by  mo- 
tion to  compel  him  to  pay  over  the  money.^^  It  is  properly  heard  in  the  county 
where  judgment  is  rendered.  The  court  may  adjust  any  set-off  or  lien  which  the 
attorney  may  have  on  the  money;  and  where,  on  such  motion,  a  claim  of  set-off 
by  the  attorney  was  heard  and  fraudulently  allowed,  the  allowance  amounts  to  a 
verdict.  Ex  parte  aflBdavits  cannot  be  admitted  on  the  motion.*^  A  motion  by 
attorneys,  against  whom  a  petition  to  compel  payment  of  moneys  retained  has  been 
filed,  to  remit  the  petitioner  to  an  action  or  legal  proceeding  in  order  that  they 
might  plead  a  counterclaim,  cannot  be  denied  on  the  theory  that  there  is  no  re- 
quest to  remit  petitioner  to  an  action  at  law.^^  Where  the  client  applies  for  an 
order  directing  his  attorney  to  pay  over  a  judgment  collected,  and  the  attorney 
submitted  his  rights  in  the  fund  to  the  court  for  determination,  he  cannot  object 
that  a  reference  should  have  been  had  to  determine  his  fees.^® 

Equity  will  entertain  a  bill  by  a  client  setting  up  fraud  against  his  attorney 
in  retaining  more  than  the  amount  of  his  proper  fees,  and  asking  that  he  be  com- 
pelled to  account  as  trustee  ;*°  but  an  accounting  in  equity  cannot  be  had  to  com- 
pel an  attorney  to  pay  over  money  collected  on  a  claim.*^  A  bill  may  be  brought 
m  equity  to  investigate  fraudulent  transactions  between  attorney  and  client  and 
declare  them  void,  and  equity  will  always,  at  the  instance  of  a  client,  treat  such 
transactions  as  constructively  fraudulent,  unless  the  attorney,  upon  whom  the 
burden  of  proof  lies,  shows  their  fairness  and  equity.**  An  injunction  may  issue 
to  restrain  an  attorney  from  collecting  a  judgment,  though  he  had  a  lien  thereon 
for  fees  which  he  might  have  obtained  by  proper  action.*^ 

Criminal  proceedings. — If  he  retains  the  money  pending  an  agreement  as  to 
his  compensation,  he  is  not  liable  under  a  law  providing  a  fine  for  refusal  to  turn 
over  such  mone}'',  less  his  proper  fees.** 

§  7.  Compensation  and  lien;  compensation. — A  husband's  unauthorized  re- 
tainer to  sue  for  his  wife  is  not  sufficient.*'  An  agreement  for  a  percentage  of  the 
demands  to  be  defeated  is  a  contract  of  employment,  under  which  the  attorney 
must  perform  in  a  reasonable  time  to  bind  his  clients.*®  While  an  attorney  can- 
aot  hire  an  associate  without  consent,  he  may  recover  for  full  services  performed, 
though  he  had  an  assistant  under  his  employment,  and  is  to  divide  fees.*^ 

Public  services,  or  those  pertaining  to  the  office  of  attorne}',  are  not  paid;  hence 
an  attorney  cannot  recover  from  the  county  for  representing  the  public  disbar- 
ment proceedings.*' 

Services  not  specified  in  contract. — An  attorney  employed  for  a  certain  pur- 


33.  Lynde  v.  Lynde  (N.  J.  Ch.)  50  Atl.  659. 

34.  Keeney  v.   Tredwell,   71  App.   Div.    (N. 
Y.)    521. 

35.  Code  Iowa,    §§   3826-3830 — Union   Bldg. 
&  Sav.  Ass'n  v.  Soderquist,  115  Iowa,   695. 

36.  Code  Iowa,  §  331 — Union  Bldg.  &  Sav. 
Ass'n  V.   Soderquist,  115  Iowa,   695. 

37.  Union    Bldg.    &    Sav.    Ass'n    v.    Soder- 
quist,   115    Iowa,    695. 

SS.     In  re  PoUock,  69  App.  Div.  (N.  Y.)  499. 

39.  In  re  Borkstrom,  168  N.  Y.   639. 

40.  Maloney   v.   Terry,    70   Ark.    189. 

41.  Pfau  v.  Fullenwider,  102  111.  App.  499. 


42.  Robinson   v.   Sharp,    201   111.    86. 

43.  O'Neal  V.  Spalding,  23  Ky.  Law  Rep. 
1729,  66  S.  W.   11. 

44.  Hamel   v.   People,    97    111.    ApR.    527. 

45.  Evidence  held  Insufficient  to  show 
that  husband's  act  was  binding  on  wife — 
T^^hitesell  v.  New  Jersey  Ferry  Co.,  68  App. 
Div.   (N.  Y.)    82. 

46.  Wheeler  v.   Harrison,    94   Md.    147. 

47.  Kingsbury  v.  Joseph,  94  Mo.  App.   298. 

48.  Code  Iowa,  §§  323-329.  Section  325  no- 
where provides  that  the  county  shall  pay 
fees  to  such  attorney — Hyatt  v.  Hamilton 
County   dowa)    90  N.   W.   508. 


270 


ATTORNEYS  AND  COUNSELORS. 


§7 


pose  may  recover  for  all  services  required  to  that  end;*'  but  he  cannot  recover  for 
unless  labor  performed  through  negligence  or  inexperience,  nor  for  services  in  an 
action  where  the  statute  demands  special  evidence,  if  he  has  failed  first  to  ascer- 
tain its  existence.'"  Recovery  cannot  be  had  for  services  for  which  the  attorney 
was  not  employed,  and  which  were  done  without  his  client's  knowledge  or  consent  f^ 
or  for  services  of  assistant  counsel,  employed  without  authority.^-  An  agreement 
to  prosecute  a  particular  suit  will  not  bind  the  attorney  to  defend  a  motion  to 
vacate  the  judgment  obtained.^^ 

Implied  contract. — A  client  who  knew  an  attorney  was  rendering  services  for 
him,  and  did  not  dissent,  is  liable  on  an  implied  contract  for  fees;  the  result  of 
a  case  in  which  he  was  employed,  or  the  conditions  of  a  distinct  contract  for  other 
services,  cannot  affect  the  implied  contract."*  On  an  unauthorized  statement  to 
him  that  he  was  to  appear,  an  attorney  cannot  do  so  and  recover  from  a  party  who 
had  no  litigable  interest  in  the  suit.""  Employment  of  one  attorney  by  another  to 
assist  in  a  case  raises  an  implied  contract  by  the  client  to  pay  the  second  attornej-'s 
1668;°*^  but  the  client's  knowledge  that  assistant  coimsel  were  employed  and  were 
acting  will  not  bind  him  where  he  believed  that  his  attorneys  were  responsible  for 
the  fees."^  An  attorney  who  employs  local  counsel  to  conduct  a  suit  in  another 
county  ma)^  charge  the  fees  as  expenses  to  the  extent  he  would  have  expended  had 
he  gone  in  person.^^  A  written  contract  between  an  attorney  and  client  for  com- 
})ensation  in  certain  litigation  cannot  affect  the  right  to  compensation  of  another 
attorney  employed  by  the  first  attorney,  with  consent  of  his  client,  to  conduct  the 
argument  on  appeal,  where  the  contract  was  unknown  to  the  second  attorney,  and 
uo  arrangement  was  made  concerning  compensation."®  "Wliere  an  attorney  em- 
ployed to  assist  another  in  a  suit  is  ignorant  of  an  agreement  that  the  first  attorney 
should  pay  his  fees,  such  agreement  cannot  be  shown  in  an  action  against  the  client 
for  such  fees.^° 

Employment  of  several  attorneys  or  by  several  clients. — Several  employment 
of  more  than  one  attorney  in  the  same  cause  entitles  each  to  recover  value  of  his 
own  services. ^^  Where  it  is  shown  that  attorneys  fully  performed  certain  labors 
for  several  clients,  and  were  prepared  to  defend  all  their  rights,  they  may  recover 
for  fees  on  the  contract,  though  no  particular  services  were  rendered  as  to  one  of 
the  clients.®^ 

Contingent  fees  and  payment  in  property  recovered.^^ — A  contingent  fee  con- 
tract, not  champertous,  is  valid  where  the  costs  are  paid  by  the  client,  and  bind- 
ing between  the  parties  as  to  the  proportion  of  the  amount  recovered  agreed  to 
be  paid;^*  but  the  contract  must  not  offend  public  policy  by  stipulating  against  a 


49.  Investigation  of  title  to  lands  In  a 
foreign  state — Brownrigg  v.  Massengale  (Mo. 
App.)    70   S.   W.   1103. 

.10.  Leo  V.  Leyser,  36  Misc.  Rep.  (N.  Y.) 
549. 

51.  Preparation  and  filing  of  brief — Duck- 
wall  V.  Williams  (Ind.  App.)    63  N.  E.  232. 

52.  Dillon  v.  *Vv"atson    (Neb.)   92  N.  W.   156. 

53.  Foreclosure  of  mechanic's  lien — 
Cranmer  v.  Brothers.  15  S.  D.  234. 

54.  Davis  v.  Walker,  131   Ala.   204. 

55.  Appearing  for  casualty  company  in- 
suring railroad  company  against  injuries 
to  employes  in  suit  by  indemnity  company. 
Insuring  an  employe  as  to  injuries,  against 
the  railroad  company — Lillis  v.  Pennsyl- 
vania Casualty  Co.,  9  Detroit  Leg.. News,  315, 
91   N.  W.   165. 

56.  The  first  attorney  was  the  agent  of 
his  client  In  the  employment — Miller  v.  Bal- 


lerino,  135  Cal.  566,  67  Pac.  1046,  68  Pac.  600. 

57.  McCarthy  v.  Crump  (Colo.  App.)  67 
Pac.    343. 

r,S.     Dillon  V.  Watson   (Neb.)   92  N.  W.  156. 

59.  Allen    v.    Parrish    (Kan.)    70    Pac.    351. 

60.  Miller  v.  Ballerino,  135  Cal.  566,  67 
Pac.    1046,    68    Pac.    600. 

61.  MacDonald  v.  Tittmann  (Mo.  App.)  70 
S.  W.  502. 

62.  "^Mieeler   v.   Harrison,    94  Md.   147. 

63.  As  to  the  rights  of  champertous  con- 
tractors, consult  Champerty  and  Mainte- 
nance. 

64.  This  under  the  Pennsylvania  law  and 
the  federal  law — Muller  v.  Kelly,  116  h'ed. 
545. 

Suing  in  forma  pauperis  does  not  show 
that  attorney  acts  for  contingent  fee,  and 
Is  partner  in  suit — Allison  v.  Southern  R. 
Co.,    129    N.    C.    336. 


§7 


COMPENSATION  AND   LIEN. 


271 


eettlemeut,®'^  nor  provide  for  an  overreaching  excessive  portion,*'  Suit  on  a  life 
policy  may  be  so  undertaken.*^ 

A  contract  that  attorney's  fee  shall  be  collected  from  proceeds  of  an  insur- 
ance policy  assigned  to  the  client  to  secure  notes  containing  a  clause  for  fees  is  an 
equitable  assignment  pro  tanto  of  the  proceeds  of  the  policy." 

Computing  and  assessing  amount. — A  fixed  fee  is  not  reduced  because  less 
labor  was  required  tlian  had  been  anticipated.*' 

In  the  absence  of  contract,  the  measure  of  fees  is  the  reasonable  value  of  the 
services/"  to  be  determined  by  the  usual  charges  for  the  same  or  similar  services 
f,Dr  competent  persons,  or  reasonable  compensation  under  the  facts  of  the  par- 
ticular case,  where  no  usual  charge  is  established.'^^  Professional  standing  of  an 
attorney,  his  reputation  in  a  special  line,  and  the  importance  of  his  services,  meas- 
ured by  the  amount  involved,  the  time  taken,  and  the  result,  together  with  the 
conditions  connected  with  the  subject-matter,  may  be  considered  in  determining 
his  fees.'^^  That  he  has  been  unsuccessful  in  his  efforts  will  also  be  considered.''^ 
Where  the  contingent  fee  is  based  on  an  "award"  for  taking  land  made  long  after 
title  was  taken,  it  includes  interest  on  the  award.''*  An  agreement  to  institute  a 
suit  for  recovery  of  money  for  half  of  the  amount  recovered  is  proper  if  not  in- 
duced by  fraud,  or  if  the  fee  is  not  so  excessive  as  to  show  improper  advantage.'"* 
A  five  hundred  dollar  fee  certain,  and  one  thousand  dollars  additional  in  case  of 
success,  is  reasonable  in  collection  of  a  claim,  by  suit,  for  nearly  twenty  thousand 
dollars.''*  The  amount  of  property  saved  by  the  efforts  of  the  attorney  for  his 
client  should  be  considered  in  assessing  fees  on  a  contingent  basis,'''  but  the  fees 
cannot  exceed  tlie  agreed  proportion  of  the  amount  actually  received  by  the  client 
from  the  judgment.''* 

Where  an  attorney,  employed  by  an  estate,  improperly  induced  the  heirs  to 
enter  a  contract  for  collection  of  an  insurance  policy  on  the  life  of  deceased  at  a 
large  contingent  fee,  he  was  entitled  to  recover  only  reasonable  compensation.'* 

Allowances  hy  court. — In  New  York  a  judgment  for  costs  only  when  collected 
on  execution  should  be  paid  to  the  attorney  to  whom  the  costs  belong,  and  not  to 
his  successful  client.**  An  attorney  commencing  suit  without  authority  cannot 
have  costs.*^  A.  contract  giving  an  attorney  part  of  alimony  recovered  for  his 
client,  as  fees,  is  void.^^  and  none  of  it  should  be  diverted  to  expenses  if  there  is 
an  allowance  for  that.*^ 

Loss  or  forfeiture  of  compensation. — Fraud  of  the  attornc}^,®*  and  withdrawal 


65.  Davis    v.    Chase    (Ind.)    64    N.    E.    88. 

66.  Robinson  v.  Sharp,  201  111.  86.  Half 
held  proper — In  re  Fitzsimons,   174  N.   Y.   15. 

67.  Robin.son  v.  Sharp,   201  111.   86. 

68.  Blakey  v.  New  Tork  Life  Ins.  Co.. 
28   Ind.    App.    428. 

Construction  of  contract  for  conveyance  of 
part  of  land  recovered  as  attorney's  com- 
pensation— Adams  v.  Hopkins  (Cal.)  69  Pac. 
228. 

69.  Employment  by  devisee  to  prevent 
sale  of  property  by  executors — Browder  v. 
Long,  23  Ky.  Law  Rep.  2068,  66  S.  W.   600. 

70.  Kingsbury  v.  Joseph,  94  Mo.  App.  298. 

71.  Bingham   v.    Spruill.    97    111.    App.    374. 

72.  Schlesinger  v.  Dunne,  36  Misc.  Rep. 
(N.   Y.)    529. 

73.  Germania  Safety  Vault  &  Trust  Co.  v. 
Hargis,  23  Ky.  Law  Rep.  874,  64  S.  W.  516; 
Randall   v.   Packard,   142   N.  Y.   47. 

74.  Bassford  v.  Johnson,  172  N.  Y.  488, 
modifying  order  in  Re  Bassford,  71  App.  Div. 
fN.    Y.)    617. 


75.  In   re   Fitzsimons,   174   N.   Y.   15. 

76.  Fox  V.  "Willis,   24  Ky.   Law  Rep.   1773. 

77.  Employment  to  recover  realty  and  to 
clear  titles  for  contingent  fee,  based  upon 
the  value  of  the  land  under  which  the 
same  was  recovered  for  timber  cut  from  the 
land  by  trespassers — Bowser  v.  Patrick,  23 
Ky.  Law  Rep.   1578,   65  S.   W.   824. 

78.  Leslie  v.  York,  23  Ky.  Law  Rep.  2076, 
66   S.   W.   751. 

79.  Robinson   v.   Sharp,    201   III.   86. 

SO.  Adams  v.  Niagara  Cycle  Fittings  Co., 
10    N.    Y.    Ann.    Cas.    401. 

81.  Whitesell  v.  New  Jersey  Ferry  Co., 
68    App.    Div.    (N.    Y.)    82. 

82.  The  rights  under  a  decree  for  ali- 
mony are  not  assignable  or  capable  of  an- 
ticipation— Lynde  v.  Lynde  (N.  J.  Err.  & 
App.)     52    Atl.    694. 

83.  In  re  Bolles,   78  App.  Div.   (N.  Y.)    180. 

84.  Claimed  as  set-off  in  action  for  the 
fraud — Harding    v.    Helmer,    193    III.    109. 


272 


ATTORNEYS  AND  COUNSELORS. 


§7 


without  cause  of  an  attorney  employed  generally,"  will  forfeit  compensation;  bnt 
his  acting  for  the  other  party  with  his  client's  consent  will  not  affect  the  right" 
The  contract  for  fees  must  not  be  unreasonable  in  amount." 

Frustration  of  performance. — Discharge  for  good  cause  will  prevent  recovery 
of  compensation."  If  the  employment  is  without  time,  and  the  attorney  is  dis- 
charged without  fault  before  complete  performance,  he  may  recover  for  services 
rendered."  Mere  authority  to  bring  a  suit,  being  revocable  by  the  client,  entitles 
the  attorney  only  to  compensation  for  services  performed  before  revocation.®"  An 
attorney  discharged  without  cause  while  the  litigation  for  which  he  was  employed 
is  still  pending  may  recover  for  loss  of  compensation  at  once.®^  Abandonment  of 
his  enterprise  by  the  client  before  services  are  rendered  will  not  prevent  recovery 
of  a  retainer  by  the  attorney  j^^  but  an  attorney  engaged  to  assist  in  a  trial  can  only 
recover  the  reasonable  value  of  his  services,  where  a  compromise  was  made  on  the 
eve  of  the  trial,  though  his  services  were  to  be  gratuitous  in  case  suit  was  unsuc- 
cessful.®' Wliere  the  other  party,  on  compromise  and  demurrer,  agrees  to  pay  an 
attorney,  he  is  liable  for  reasonable  fee  under  the  attorney's  contract,  less  a  rea- 
sonable rate  thereof  as  represented  by  the  part  of  the  attornej-^s  duties  still  unper- 
formed.®* Payment  by  defendant  of  a  certain  sum  without  admitting  plaintiff's 
cl-  .  but  merely  to  stop  suit  and  annoyance,  is  not  a  settlement  or  recovery  within 
an  agreement  by  plaintiff  to  pay  his  attorney  a  certain  fee  on  "settlement  or  re- 
covery."®' 

Lien. — A  law  giving  an  attorney's  lien  cannot  be  applied  retroactively  to  affect 
contracts  containing  no  provision  therefor.®*  An  attorney  acting  before  a  county 
board  sitting  judicially  appears  in  legal  "proceedings,"  and  has  a  lien  for  fees  with- 
out filing  a  claim  or  giving  notice  as  against  the  claimant  represented.®^  An  at- 
torney who  drew  a  will  cannot  retain  possession  of  it  until  his  fees  for  that  and 
other  services  are  paid,  and  may  be  compelled  to  produce  the  instrument." 

As  a  general  rule  there  is  no  lien  on  the  subject-matter  of  litigation;  hence 
where,  in  a  suit  for  divorce  and  alimony,  and  to  set  aside  a  fraudulent  conveyance 
by  the  husband  and  wife  to  others,  the  husband  defaulted,  and,  before  the  question 
of  alimony  was  submitted,  the  wife  dismissed  her  case,  her  attorneys  had  no  lien.®* 
The  husband's  attorney  in  divorce  proceedings  has  no  lien  on  money  decreed  to  be 
paid  by  the  wife  in  consideration  of  a  transfer  of  his  interest  in  their  joint  prop- 
erty, where  the  husband  failed  to  comply  with  conditions  giving  him  a  like  right 
to  conveyance  from  her.^ 

The  lien  exists  only  for  services  concerning  the  particular  fund  on  which  it 
is  sought,^  and  does  not  attach  to  funds  which  the  attorney  did  not  assist  in  creat- 


es.    Cahlll  V.  Balrd    (Cal.)    70  Pac.   1061. 

86.  Brodie  v.  Parsons.  23  Ky.  Law  Rep. 
831.  See  Strong  v.  Investment  Union,  183 
111.   97. 

87.  A  fee  of  one-half  the  amount  recov- 
ered In  compelling  an  administratrix  to  ac- 
count regarding  a  large  estate,  in  which 
all  the  parties  are  Interested,  is  excessive, 
and  cannot  be  enforced — In  re  Fitzsimons, 
77    App.    Div.    (X.    Y.)    345. 

88.  Cahill  v.  Baird  (Cal.)   70  Pac.  1061. 

8J).  Union  Surety  &  Guaranty  Co.  v.  Ten- 
ney,  102  111.  App.  95;  judgment  affirmed  200 
111.    349. 

00.  "Whitesell  v.  New  Jersey  Ferry  Co.,  68 
App.   Div.    (N.   T.)    82. 

01.  Weil   v.   Finneran,    70   Ark.    509. 

02.  Union  Surety  &  Guaranty  Co.  v.  Ten- 
ney,   200  111.   349. 


03.  Action  of  quantum  meruit  ag.'^inst 
the  attorneys  by  whom  he  was  employed 
to  recover  fees — O'Neill  v.  Crane,  65  App. 
Div.    (N.    Y.)    358. 

04.  Bowser  v.  Patrick,  23  Ky.  Law  Rep. 
1578. 

05.  Randal  v.  Vanderbilt,  75  App.  Div. 
(N.   Y.)    313. 

OC.  Kendall  v.  Fader,  99  111.  App.  104; 
judg-ment   affirmed   199   111.   294. 

07.  Maloney  v.  Douglas  County  (Neb.)  89 
N.    W.    248. 

08.  In  re  Bracher  (N.  J.  Prerog.)  51  Atl. 
63. 

00.  Code  Iowa,  §  321 — Keehn  v.  Keehn. 
115  Iowa.  467,  citing  many  cases  with  full 
discussion. 

1.  Canney  v.  Canney  (Mich.)  91  N.  W.  620. 

2.  Aber's   Petition.    18    Pa.    Super.    Ct.    110. 


J 


e    7  COMPENSATION  AND  LIEN.  273 

ing,  or  of  which  he  never  had  custody  ;^  nor  will  it  exist  as  against  a  fund  in  court 
which  is  consumed  by  a  lien  prior  to  the  one  which  the  attorney  has  enforced  ;*  nor 
can  a  special  lien  be  claimed  on  a  fund  recovered  under  a  right  advprse  to  that  of 
the  party  represented  by  the  attorney."^  Funds  of  an  estate  in  banlc,  and  checks 
drawn  before  letters  issued,  are  not  subject  to  a  lien  for  services  respecting  only 
the  executor's  share,  and  rendered  before  his  appointment,  which  was  made  to 
avert  a  contest,  and  prejudiced  some  of  the  legatees.^ 

It  exists  to  secure  expenses  as  against  a  judgment,^  or  the  amount  of  recovery 
for  a  minor,^  or  funds  in  the  hands  of  the  other  party,  where  procured  by  proper 
notice  before  payment,"  but  not  against  a  garnishment  fund  in  favor  of  the  attorney 
of  the  garnishment  defendant,^"  nor  on  a  fund  resulting  from  settlement,  after 
the  plaintiff's  death,  of  a  suit  for  personal  injuries,"  nor  on  property  for  defend- 
ing successfully  a  suit  for  its  recovery,^^  nor  on  a  homestead  for  services  in  a  suit 
to  recover  it,"  nor  for  representation  of  a  defendant,  where  no  counterclaim  is 
alleged,"  nor  where  such  defendant  claims  no  affirmative  relief,  but  the  attorney 
may  be  protected  against  fraudulent  and  collusive  settlement.^^ 

Attorney's  fees  cannot  be  made  a  lien  on  a  homestead,  though  stipulated  in 
a  mortgage  for  improvements,^^  or  in  a  contract  giving  a  mechanic's  and  material- 
man's lien;"  but  in  Louisiana  fees  for  services  in  selling  property  of  an  insolvent 
are  prior  to  the  privilege  of  the  vendor  or  lessor."  Fees  in  a  foreclosure  suit,  in 
which  the  decree  provides  for  payment,  form  part  of  the  judgment,  and,  if  not 
paid,  go  to  the  mortgagee  in  trust  for  the  attorney ;  and  the  lien  therefor  may  be 
enforced  against  property  bought  in  the  name  of  another,  who  purchased  the  de- 
cree from  the  mortgagee."  Where  the  fee  is  contingent,  the  lien  is  only  pro- 
spective.2°  ^ji  agreement  of  heirs  to  pay  a  contingent  fee  in  a  partition  suit  does 
not  create  an  equitable  interest  in  or  a  lien  upon  property  of  an  estate,  so  that 
the  agreement  may  be  enforced  in  the  partition  or  on  distribution  of  the  property.^^ 

The  attorney's  statutory  lien  on  a  judgment  gives  him  only  additional  secur- 
ity, and  does  not  destroy  his  rights  in  a  judgment  for  costs  only.^^  The  lien  of 
an  attorney  for  plaintiff  on  his  client's  judgment  for  taxable  costs  and  court  char- 
ges is  prior  to  defendant's  right  to  set  off  another  judgment  held  by  him  ao-ainst 
plaintiff.^^  Parties  who  settle  with  the  adverse  party  for  less  than  the  amount 
of  a  judgment  obtained  against  them,  on  which  attorneys  have  a  lien,  are  per- 
sonally liable  for  their  fees.^*     A  contract  with  attorneys  for  legal  services  in  re- 


3.  Schmertz  v.   Hammond,    51   W.  Va.    408. 

4.  Schmertz   v.   Hammond.   51   "W.   Va.   408. 
6.     Schmertz  v.  Hammond,    51   W.   Va.   408. 

6.  Kerngood  v.  Jack,  38  Misc.  Rep.  (N. 
T.)    309. 

7.  In  re  Dalley,   65  App.  Div.    (N.  Y.)    523. 

8.  American  Lead  Pencil  Co.  v.  Davis 
(Tenn.)    67    S.   W.    864. 

9.  Gen.  St.  Minn.  1894,  §  6194.  providing 
a  lien  for  attorney's  fees  on  judgments  or 
papers  In  possession  of  the  attorney — 
Weicher  v.   Cargill,   86   Minn.    271. 

10.  Phillips    V.    Hogue,    63    Neb.    192. 

11.  The  fund  represents  the  damages  suf- 
fered by  the  estate,  and  not  by  the  de- 
ceased plaintiff — In  re  Carrig,  36  Misc.  Rep. 
(N.  T.)    612. 

12.  St.  Ky.  5  107 — Thompson  v.  Thomp- 
son,   23   Ky.   Law   Rep.   1535. 

IS.  Exemption  under  Const.  Tenn.  art.  11, 
§  11,  and  Shannon's  Code  Tenn.  §  3798 — Mc- 
Broom    v.    Whitelield.    108    Tenn.    422. 

14.  The  lien  under  Code  Civ.  Proc.  N.  Y. 
!  66,   cannot  be  made  to  extend   to  liability 

Cur.  Law — 18. 


of  plaintiff  on  an  Injunction  bond — Fromme 
V.  Union  Surety  &  Guaranty  Co.,  39  Misc 
Rep.    (N.  Y.)   105. 

15.  Lien  given  by  Code  Civ.  Proc.  N.  Y. 
§  66 — Saranac  &  L.  P.  R.  Co.  v.  Arnold  41 
App.    Div.    (N.    Y.)    482. 

16.  Harn  v.  American  Bldg.  &  Sav.  Ass'n 
(Tex.)    65   S.    V\^    176. 

17.  American  Bldg.  &  Sav.  Ass'n  v.  Daugh- 
erty    (Tex.   Civ.   App.)    66   S.   W.    131. 

18.  Salaun   v.   Creditors.   106  La.    217. 

19.  Loofbourow  v.  Hicks,  24  Utah,  49,  66 
Pac.    602. 

20.  Anderson  v.  Itasca  LumbeV  Co.,  86 
Minn.  480;  Cameron  v.  Boeger,  102  111.  App 
649, 

21.  Boyle  V.   Boyle,  116   Fed.   764. 

22.  Under  Code  Civ.  Proc.  N.  Y.  §  66 — 
Adams  v.  Niagara  Cycle  Fittings  Co.,  10  N. 
Y.   Ann.   Cas.    401. 

23.  Pride  v.   Smalley,   66  N.  J.  Law,   578. 

24.  Flint  v.  Hubbard  (Colo.  App.)  66  Pac. 
446;  Fischer-Hansen  v.  Brooklyn  Heights 
R.    Co..    173    N.    Y.    492. 


274 


ATTORNEYS  AND  COUNSELORS. 


§  V 


gard  to  mining  claims  gives  them  no  right  of  action  against  a  subsequent  pur- 
chaser of  the  property  who  did  not  know  of  the  contract,  where  it  gave  such  attor- 
neys no  interest  in  the  proceeds  of  the  sale  until  it  was  received  by  the  owners.^'' 

Lioss  of  lien. — An  attorney  who  authorized  his  client  to  commence  action  on 
a  judgment  obtained  by  him  in  another  state  loses  his  lien  on  the  judgment  as  to 
the  judgment  debtor.^®  An  attorney  who  notifies  his  client  that  he  will  not  pro- 
ceed further  after  the  verdict  obtained  is  reversed  on  appeal  without  payment  of 
fees  thereby  discharges  himself  if  the  fees  are  not  paid,  so  that  he  cannot  object 
to  susbstitution  of  another  attorney  on  the  ground  of  his  lien.^^ 

Protection  of  fees  or  lien  in  suit  in  ivliich  attorney  is  employed. — The  attor- 
ney's lien  may  be  enforced  in  the  action  in  which  the  attorney  served,-^  though  it 
will  not  prevent  dismissal  by  the  client.^®  Contra  in  Georgia,  where  the  party 
cannot  withdraw  a  proceeding  against  objection  of  his  attorney,  when  the  proceed- 
ing, if  successful,  would  result  in  recovery  of  property  as  to  which  the  attorney 
would  have  a  lien  for  fees.^°  Attorneys  in  an  action  for  personal  injuries,  who 
are  entitled  to  a  portion  of  the  recovery  in  lieu  of  fees,  cannot  object  to  plaintiff's 
dismissal  without  their  consent,  nor  can  they  be  made  parties  and  continue  the 
prosecution  merely  because  of  their  lien.^^  After  two  trials  without  result,  a  dis- 
missal by  plaintiff  without  knowledge  or  consent  of  his  attorney,  and  not  based 
•on  settlement,  or  for  the  purpose  of  defrauding  the  attorney,  is  proper,  though 
l;e  agreed  to  give  the  attorney  a  third  of  the  amount  recovered  and  expenses,  and 
that  no  settlement  should  be  made  without  consultation.^^  But  plaintiff  in  a 
iiersonal  injury  suit  assigned  to  attorneys  cannot  compromise  with  defendant,  who 
i^nows  that  the  suit  was  brought  on  a  contingent  fee,  except  as  to  the  unassigned 
j)art  of  the  claim.^' 

If  the  retainer  agreed  upon  is  not  paid  before  time  of  trial,  an  attorney  who 
has  appeared  and  filed  answer  for  defendant  may  withdraw  from  the  case  or  fail 
to  appear  at  trial.**  Parties  to  a  suit  in  which  no  counterclaim  or  affirmative  de- 
fense is  asked  may  discontinue  after  a  first  trial,  and  will  not  be  compelled  to 
go  to  trial  again  for  the  benefit  of  defendant's  attorneys  who  served  on  the  first 
trial  and  the  appeal.*'^ 

The  claim  of  an  attorney  for  services  in  prosecuting  a  suit  for  personal  in- 
juries will  not  entitle  him  to  intervene,*®  nor  can  he  do  so  in  a  divorce  suit.*^  A 
contract  for  a  contingent  fee  in  case  of  judgment  or  settlement  will  not  entitle  at- 
tornevs  to  be  made  parties,  nor  does  it  amount  to  an  assignment  of  a  part  of  the 
claim." 

A  set-off  of  judgments  will  not  be  allowed  to  defeat  the  attorney's  lien  for  tax- 


25.  Weiss  V.  Gullett  (Colo.  App.)  70  Pac. 
442. 

26.  The  attorney  sent  a  trans'crlpt  of 
the  judgment  on  which  to  bring  suit,  and 
agreed  to  hold  the  client  personally — Barna- 
bee  V.   Holmes,   115   Iowa,   581. 

27.  Fargo  v.  Paul.  35  Misc.  Rep.  (N.  Y.) 
568. 

28.  Gen.  St.  Minn.  1894,  §  6194 — Welcher 
V.  Cargill.  86  Minn.   271. 

29.  Cameron  v.  Boeger,  102  111.  App.  649, 
Jt.  aff.  200  111.  84.  Dismissal  on  appeal — 
"Williams  v.  Miles,  63  Neb.  851. 

30.  Walker  v.  Equitable  Mortg.  Co.,  114 
Ga.    862. 

31.  Code  Tenn.  1899,  c.  243.  §  1,  provid- 
ing a  lien  on  the  right  of  action  from  the 
date   of   filing  the   suit,   gives   no   such    right 


to    the    attorney — Tompkins    v.    Nashville,    C. 
&  St.  L.  R.  Co.    (Tenn.)    72  S.  W.   116. 

32.  Anderson  v.  Itasca  Lumber  Co.,  86 
Minn.    480. 

33.  The  contract  empowered  the  attor- 
ney to  sue  In  his  own  name — Texas  Cent 
R.  Co.  v.  Andrews  (Tex.  Civ.  App.)  67  8. 
W.    923. 

34.  Silver  Peak  Mln.  Co.  v.  Harris,  116 
Fed.    439. 

35.  Saranac  &  L.  P.  R.  Co.  v.  Arnold.  41 
App.    Div.    (N.    T.)    482. 

36.  Gouthern  Pac.  Co.  v.  Winton,  27  Tex. 
Civ.    App.    503. 

37.  Keehn  v.  Keehn,  115  Iowa,  467. 

38.  Cameron  v.  Boeger,  102  111.  App.  649; 
judgment  affirmed  200  111.  84.  Not  party 
in  interest — Allison  v.  Southern  R.  Co.,  129 
N.    C.    336. 


§  7 


COMPENSATION  AND   LIEN. 


275 


able  costs.^^  An  attorney  cannot  have  a  discontinuance  set  aside  because  of  failure 
to  provide  for  costs,  where  his  client  is  solvent  and  consents  to  the  discontinuance.*" 
An  agreement  whereby  an  attorney  is  to  defend  and  receive  costs  taxed  to  his 
client,  if  successful,  as  fees,  gives  him  no  such  interest  as  will  prevent  discontinu- 
ance by  his  client  without  costs,  on  stipulation  with  the  other  party.*^ 

Remedies  for  enforcement  of  lien  or  recovery  of  compensation. — Fees  of  at- 
torneys representing  a  minor  cannot  be  fixed  on  ex  parte  application.*-  Where 
an  attorney  is  substituted  in  a  suit  for  another,  who  was  to  recover  a  contingent 
fee,  the  former  attorney  is  entitled  to  be  protected  in  the  order  of  substitution,  so 
that  any  compensation  due  him  in  the  event  of  recovery  may  be  withheld.*'  The 
attorney's  lien  on  a  client's  cause  of  action  cannot  be  enforced,  after  accord  and 
satisfaction,  without  an  order  of  the  court.**  A  set-off  cannot  be  allowed  to  the 
extent  of  an  attorney's  lien  on  a  judgment  recovered.*'' 

An  order  permitting  attorneys  to  enforce  their  lien  by  final  judgment  after 
a  settlement  between  the  parties  cannot  be  had  where  it  does  not  appear  that  their 
client  was  insolvent  or  refused  to  pay  them.  That  a  settlement  was  induced  by 
fraud  cannot  affect  the  right  of  the  attorneys  of  the  other  party  t^  enforce  their 
lien  by  final  judgment,  though  their  client  was  not  guilty  of  fraud.'*" 

In  New  York  a  statutory  provision  for  enforcement  of  an  attorney's  lien  does 
not  prevent  a  suit  in  equity  to  enforce  it,*'  though  the  cases  seem  to  be  in  con- 
flict as  to  the  rights  in  equity;**  but  equity  will  enforce  an  attorney's  lien  on  an 
award  in  eminent  domain,  where  the  distribution  of  the  award  is  disputed.*^  An 
attorney  may  enforce  in  equity  a  lien  against  a  judgment  in  foreclosure  secured  lor 
a  client  who  died  pending  the-  suit,  where  the  executrix  employed  another  attor- 
ney to  obtain  the  judgment,  and  bought  the  mortgaged  property.^"  The  lien  ex- 
tends to  proceeds  of  a  cause  of  action  and  to  the  fund  created  by  settlement,  so 
that,  if  the  other  party,  with  actual  notice  of  the  lien,  pays  the  fund  to  the  client, 
he  is  liable  in  an  equitable  action  for  enforcement  of  the  lien  if  the  client  is  in- 
solvent.^^ 

Pleading  and  proof. "^^ — An  attorney  may  join  in  the  same  action  a  count  for 
fees  and  a  count  for  claims  for  witness'  fees  in  the  litigation  duly  assigned  to 
him.^'  The  attorney  need  not  plead  his  admission,^*  nor  can  such  objection  be 
urged  in  arrest  of  judgment  ;^^  and  he  is  not  bound  to  show  affirmatively  that  no 
fraud  or  lack  of  proper  knowledge  was  present  at  formation  of  the  contract  of 
employment.^®     A  verbal  employment  by  corporate  agents  of  an  attorney  for  so 


39.  CoUins  V.  Campbell,   97  Me.   23. 

40.  McKay  V.  Morris,  35  Misc.  Rep.  (N. 
Y.)    571. 

41.  Garvin  v.  Martin   (Wis.)    93  N.  W.  470. 

42.  American  Lead  Pencil  Co.  v.  Davis 
(Tenn.)    67    S.   W.    864. 

43.  Bryant  v.  Brooklyn  Heights  R.  Co.  64 
App.    Div.    (N.    Y.)    542. 

44.  Code  Civ.  Proc.  N.  Y.  §  66 — Doyle  v. 
New  York,  O.  &  W.  R.  Co.,  66  App.  Div. 
(N.  Y.)   398. 

45.  Finney  v.  Gallop  (Neb.)  89  N.  W.  276. 

46.  Code  Civ.  Proc.  N.  Y.  §  66 — Young  v. 
Howell,    64   App.   Div.    (N.   Y.)    246. 

47.  Code  Civ.  Proc.  N.  Y.  §  66 — Fischer- 
Hansen  v.  Brooklyn  Heights  R.  Co.,  173  N.  Y. 
492;  Skinner  v.  Busse,  38  Misc.  Rep.  (N.  Y.) 
265.  11  Ann.  Cas.  156. 

48.  Lien  givn  by  Code  Civ.  Proc.  N.  Y. 
S  66 — Fromme  v.  Union  Surety  &  Guaranty 
Co.,   39  Misc.   Rep.    (N.   Y.)    105. 

49.  Deering  v.  Schreyer,  171  N.  Y.  451. 


50.  Lien  given  by  Code  Civ.  Proc.  N.  Y. 
§  66 — Skinner  v.  Busse,  38  Misc.  Rep.  (N. 
Y.)    265,    11    Ann.    Cas.    156. 

51.  Code  Civ.  Proc.  N.  Y.  §  66 — Fischer- 
Hansen  v.  Brooklyn  Heights  R.  Co.,  173  N. 
Y.    492. 

52.  As  to  the  grounds  which  may  be 
considered  In  computing  the  proper  fee,  see 
supra,  this  section,  "Computing  and  Assess- 
ing Amount."  Sufficiency  of  complaint  in 
action  by  attorneys  to  enforce  allien  against 
the  judgment  fraudulently  satisfied  by  tlieir 
insolvent  client — Flint  v.  Hubbard  (Colo. 
App.)    66    Pac.    446. 

."IS.  Flint  V.  Hubbard  (Colo.  App.)  66  Pac. 
446. 

54.  Miller  V.  Ballerlno,  135  Cal.  566,  67 
Pac.    1046,   68   Pac.    600. 

55.  Kersey  v.  Garton,  77  Mo.   645. 

56.  Clifford  V.  Braun,  71  App.  Div.  (N.  Y.) 
432. 


276 


ATTORNEYS  AND  COUNSELORS. 


§    1 


long  as  they  should  remain  such  agents,  or  the  corporation  should  continue  in 
business,  was  not  definite  in  time,  so  that  an  action  to  recover  fees  at  the  contract 
rate  from  the  time  of  the  beginning  of  the  contract  should  be  brought,  instead 
of  a  suit  to  recover  full  damages  for  breach  of  the  contract.^^  A  failure  to  allege 
that  the  attorney  was  licensed  is  cured  by  a  finding,  on  general  demurrer,  that  the 
services  were  performed  by  certain  attorneys  for  defendant.^"  An  executory  stip- 
ulation, as  part  of  an  agreement  with  an  attorney,  that  the  client  and  another 
should  fix  the  attorney's  fees,  is  a  defense  to  an  action  to  recover  such  fees,  where 
it  is  not  shown  that  the  client  had  repudiated  the  agreement,  and  such  action  can- 
not be  supported  on  a  quantum  meruit  without  allegation  that  the  client  and  his 
agent  had  repudiated  the  contract  or  refused  to  fix  the  compensation.^^  Eecovery 
as  upon  a  quantum  meruit  is  not  a  material  variance  from  a  declaration  for  serv- 
ices on  contract  of  employment.**  Where  a  client  attempts  to  recover  damages  for 
negligence  of  an  attorney  in  bringing  a  suit  without  proper  cause,  in  an  action  by  the 
attorney  for  fees,  the  burden  of  proof  to  show  negligence  is  on  the  client."  On  peti- 
tion for  set-off  of  judgments,  attorneys  to  whom  a  judgment  recovered  by  them 
has  been  assigned  cannot  assert  their  lien  for  services  in  procuring  it  as  against 
set-off  claimed  by  the  judgment  debtor,  unless  they  show  the  value  of  their  serv- 
ices.*^ The  record  and  proceedings  in  a  suit  may  be  admitted  to  show  the  value 
of  the  attorney's  services  therein,*^  and,  where  signed  by  the  client,  may  be  ad- 
mitted to  show  also  the  client's  knowledge  and  acceptance  of  services.®*  The  fact 
that  a  judgment  was  not  vacated  is  evidence  that  the  case  was  properly  tried; 
lience  that  defending  motion  to  vacate  was  not  necessitated  by  unskillfulness.®^ 
Expenses  of  the  suit  paid  by  a  client  cannot  be  shown  in  recoupment  in  an  action 
by  the  attorney  for  fees,  unless  it  appears  that  the  attorney  acted  negligently  in 
brino-ino-  the  suit.®'  The  attorne}''s  own  testimony  as  to  the  value  of  his  services, 
though  entitled  to  respect,  is  not  conclusive,  and  the  court  may  exercise  its  own 
judgment.®^  That  a  corporation,  which  had  employed  an  attorney  as  general  at- 
torney, used  printed  matter  and  stationery  on  hand  after  his  discharge,  which 
contained  his  name  as  such  attorney,  was  insufficient  to  show  his  right  to  salary 
for  the  period  during  which  the  printed  matter  and  stationery  was  so  used." 
Cases  are  shown  below  where  the  sufficiency  of  evidence  was  considered.*® 

Verdict  and  judgment. — A  finding  that  attorneys  had  lost  their  right  to  en- 


87.     Eberhardt  v.  Harkless.  115  Fed.  816. 

58.  The  complaint  Is  sufficient,  under  Code 
Civ.  Proc.  §§  469.  475,  providing  that  a  mere 
variance,  by  which  the  adverse  party  is  not 
misled,  will  not  destroy  the  right  of  action 
— Kersey    v.    Garton,    77    Mo.    645. 

59.  Instructions  held  erroneous — Roche  v. 
Baldwin.  135  Cal.  522.  65  Pac.  459.  67  Pac.  903. 

60.  Skinner  v.  Busse.  38  Misc.  Rep.  (N. 
Y.)    265,    11    Ann.    Cas.    156. 

61.  Keith    V.    Marcus.    181    Mass.    377. 
Aber's  Petition.   18  Pa.   Super.  Ct.   110. 
Duckwall   V.   Williams    (Ind.   App.)    63 
232. 

Davis   V.    Walker,    131   Ala.    204. 
Cranmer   v.    Brothers.    15    S.    D.    234. 
Keith  V.  Marcus.  181  Mass.  377. 
Germania    Safety    Vault    &    Trust    Co. 

v.    Harris.    23    Ky.    Law    Rep.    874. 

68.  Ostrander  v.  Capital  Inv.  Ass'n  (Mich.) 
89    N.    W.    964. 

69.  Prima  facie  case  In  suit  for  fees — 
De  Mund  Lumber  Co.  v.  Stllwell  (Ariz.)  6S 
Pac.  543;  evidence  of  contract  for  contin- 
gent  fee   In    addition   to   certain   fee   already 


62. 
63. 

N.  E. 
64. 
65. 
66. 
67. 


paid  by  client  for  all  services  In  the  case 
— In  re  Borkstrom,  168  N.  T.  639;  as  to  the 
contract  of  employment  and  payment  for 
services — Smith  v.  Norton,  114  Wis.  458; 
of  employment  and  rlgrht  to  interest  in  a 
fund  on  account  of  attorney's  fees — Blakey 
V.  New  York  Life  Ins.  Co..  28  Ind.  App.  428; 
of  employment  of  attorney  to  neg-otlate  a 
loan  for  a  broker  to  entitle  the  attorney  to 
compensation — Brennan-Love  Co.  v.  Mcin- 
tosh, 62  Neb.  522;  to  establish  a  prima  facie 
contract  of  employment  and  right  to  com- 
pensation— Ottofy  v.  Keyes.  91  Mo.  App.  146; 
to  show  a  right  to  a  contingent  fee  in  ad- 
dition to  a  certain  fee — In  re  Borkstrom.  168 
N.  Y.  639;  to  show  that  attorney's  fees  would 
be  fixed  by  the  client  and  his  agent — Roche 
v.  Baldwin,  135  Cal.  522.  65  Pac.  459.  67  Pac. 
903;  to  show  that  an  attorney  was  employed 
personally  as  general  attorney  for  a  corpora- 
tion, so  that  his  sole  right  to  unpaid  salary 
was  unaffected  by  subsequent  entry  Into 
partnership  with  another  attorney — Ostran- 
der  V.  Capitol  Inv.  Ass'n  (Mich.)  89  N.  W. 
964. 


§  8 


AUTHORITY  TO  REPRESENT. 


277 


forcement  of  a  lien  for  fees  by  laches  cannot  be  considered  in  an  action  to  en- 
force, where  the  client  does  not  plead  waiver  or  laches.'^*'  A  verdict  cannot  be 
directed  at  plaintiff's  close  in  an  action  for  attorney's  fees,  where  the  attorney 
testifies  to  employment,  performance  of  services,  and  the  value  thereof,  which  tes- 
timony is  corroborated  by  other  evidenced* 

§  8.  Authority  of  attorney  to  represent  client.''' — Where  a  suit  is  filed  by 
a  duly-licensed  attorney,  his  authority  to  act  for  a  plaintiff  not  under  disability 
is  presumed,^^  and,  after  judgment,  the  opposite  party  may  treat  the  attorney 
of  record  as  his  opponent's  attorney,  unless  he  has  notice  of  change.''*  A  com- 
plaint signed  by  the  attorney  need  not  show  that  he  was  attorney,  his  license  and 
assumption  of  powers  being  sufficient.''*  A  creditor's  attorney  may  sign  the  cred- 
itor's name  to  and  verify  a  petition  in  involuntary  bankruptcy  if  he  knows  the 
facts  stated  therein.^®  Proof  that  an  action  was  brought  with  consent  of  the 
plaintiff  is  insufficient  to  dispense  with  the  statutory  requirement  that  every  at- 
torney should  file  his  warrant  of  attorney."  In  the  management  of  litigation  he 
may  stipulate  that  the  deposition  of  one  suing  on  account  of  injuries  may  be 
taken  in  advance  of  the  trial,  and  may  be  read  in  an  action  by  his  personal  repre- 
sentatives should  he  die  before  trial.''^  An  attorney  for  three  joint  tort  feasors 
cannot  accept  service  for  one  of  an  appeal  by  the  other  two,  which  may  subject 
the  other  to  contribution.''®  It  will  not  be  presumed  that  an  attorney  securinf^ 
a  judgment  has  authority  to  have  execution  levied  on  land  conveyed  by  the  debtor 
as  security  before  reconveyance  to  him.®° 

Knowledge  of  an  attorney  beyond  the  matter  of  his  employment  is  not  noticvj 
to  his  client  f^  otherwise  of  material  information  known  at  time  of  his  employ- 
ment, and  which  must  have  been  in  his  mind  when  transacting  the  business."  An 
attorney  representing  an  adverse  party  also,  without  his  client's  knowledge,  and 
having  personal  interest  in  the  proceedings,  cannot  bind  his  client  by  a  knowl- 
edge of  an  unrecorded  deed,  especially  where  the  attorney  acquired  the  knowledo-e 
before  employment  by  such  client,  and  while  representing  another.*'  That  an  at- 
torney received  knowledge  of  the  fraud  of  the  debtor  by  reason  of  his  friendship 
for  the  latter  will  not  prevent  notice  attaching  to  his  client,  and  excuse  failure  to 
sue,  unless  there  was  collusive  fraud  between  the  attorney  and  the  debtor.** 


70.  Loofbourow  v.  Hicks,  24  Utah.  49.  66 
Pac.  602.  Sufficiency  of  finding  as  to  value 
of  services  on  conflicting'  expert  evidence — 
Schlesing-er  v.  Dunne,  36  Misc.  Rep.  (N.  Y.) 
529;  finding-  in  suit  for  fees  in  foreclosure — 
Dillon  V.  Watson  (Neb.)  92  N.  "W.  156;  suffi- 
ciency of  amount  of  verdict  for  attorney's 
fees,  based  on  highly  conflicting  expert  evi- 
dence— Schlesinger  v.  Dunne,  36  Misc.  Rep. 
(N.    T.)     529. 

71.  De  Mund  'Lumber  Co.  v.  Stilwell 
(Ariz.)    68    Pac.    543. 

72.  A  statement  in  an  affidavit  that  com- 
plainant is  nonresident  sufficiently  shows  the 
reason  for  verification  by  his  attorney.  'Un- 
der Code  Ala.  p.  1205.  rule  15,  requiring  the 
reason  to  be  given — Guyton  v.  Terrell,  132 
Ala.   66. 

73.  Bigham  v.  Kistler,  114  Ga.   453. 
Sufficiency   of  evidence   of  authority  given 

by  a  husband  and  wife  to  bring  action  in 
the  name  of  wife  for  personal  injuries — 
Whitesell  v.  New  Jersey  Ferry  Co.,  68  App. 
Div.   (N.  Y.)   82. 

74.  Belle  City  Mfg.  Co.  v.  Kemp.  27  "Wash. 
Ill,   67   Pac.   580. 

7.'5.     O'Brien    v.    Yare,    88   Mo.    App.    489. 


76.  In    re    Herzikopf,    118    Fed.    101;    In   re 

Hunt,    118    Fed     282 

77.  Act  April  14.  1834,  Pub.  Laws  Pa. 
1833-1834.  p    354 — Fisler  v.  Reach,  202  Pa.  74 

78.  Ludeman  v  Third  Ave.  R.  Co  72 
App.  Div.    (N    Y.)    26 

79.  In  Montana,  service  by  mail  is  not 
sufficient  against  a  successful  defendant 
whose  attorney  is  disqualified  by  represent- 
ing unsuccessful  defendants  from  accepting 
service— Hayes  v.  Union  Mercantile  Co 
(Mont.)    70   Pac.    975. 

SO.  Parker  v.  Home  Bldg.  &  Loan  Ass'n 
114    Ga.    702. 

81.  A  purchaser  of  lands  employing  an 
attorney  to  examine  title  is  flot  bound  by 
the  latter's  knowledge  that  the  vendor  Is 
insolvent — Well   v.    Reiss,    167  Mo.    125. 

82.  Deering  v.  Holcomb,  2'6  Wash.  588  67 
Pac.    240.    561. 

S3.  Scotch  Lumber  Co.  v.  Sage,  132  Ala 
598. 

84.  Knowledge  of  fraudulent  conveyance 
obtained  in  attempting  to  collect  debt — Deer- 
ing V.  Holcomb,  26  Wash.  588,  67  Pac.  240 
561. 


278 


ATTORNEYS  AND  COUNSELORS. 


§  9 


An  attorney  cannot  compromise  a  claim  without  authority,  but  authority  may 
be  inferred  from  circumstances,  such  as  a  lapse  of  years  without  reassertion  of  the 
claim.*"*  He  is  presumed  to  have  authority  to  compromise  a  pending  suit.*®  The 
apparent  scope  of  authority  of  a  general  attorney  for  a  railroad  company  to  com- 
promise a  claim  for  damages  does  not  include  an  agreement,  without  express  au- 
thority or  ratification,  to  employ  a  certain  person  for  life  as  partial  satisfaction.*^ 
The  autliority  of  an  attorney  to  settle  a  case  may  be  shown  by  proof  that  his  client 
was  present  in  court  and  allowed  the  attorney  to  treat  for  a  settlement,  and  that 
the  case  was  dismissed  under  a  belief  that  offers  made  to  the  attorney  would  be 
fulfilled.** 

He  cannot  transfer  his  client's  property  in  satisfaction  of  fees  of  officers,*® 
nor  release  a  surety  in  a  claim  property  bond,^°  but  may  authorize  a  constable  and 
release  property  in  his  possession  from  an  attachment  writ.®^  The  attorney  of 
a  divorced  wife  cannot  waive  her  right  in  a  written  contract  with  her  husband 
to  secure  to  her  the  monthly  rental  of  property  in  which  she  has  a  life  estate, 
without  her  special  authority.®^ 

An  afcorney  authori2?ed  to  collect  a  claim  has  implied  authority  to  indorse 
a  draft  received  in  order  to  cash  it.^*  And  if  one  employed  to  act  for  and  collect 
the  shares  of  several  heirs  and  legatees  was  responsible  for  money  collected,  and 
had  sole  authority  to  receive  it,  he  had  authority  to  indorse  checks  received  in 
payment  and  cash  them.®* 

He  may  employ  local  counsel  to  try  a  case  in  another  county ,®'*  but,  when 
employed  for  a  stated  sum,  cannot  engage  services  of  an  associate  without  author- 
ity of  the  client.®^ 

An  attorney  cannot  purchase  for  his  client  property  sold  under  execution 
against  the  client  in  proceedings  defended  by  the  attorney."  An  attorney  to  de- 
fend an  action  for  personal  injuries  has  no  authority  to  order  payment  of  the 
claim  after  judgment.®*  That  an  attorney  knew  of  a  claim  at  the  time  he  directed 
the  execution  of  a  lease  between  the  parties  will  not  warrant  the  inference  that 
he  had  authority  to  bind  his  client  to  payment.®' 

Verbal  admissions  and  conclusions  of  law  oi  an  attorney  will  not  raise  an 
estoppel  pleaded  by  the  adverse  party  against  his  client  without  evidence  in  the 
record  supporting  the  admission.^  An  attorney  under  general  retainer  cannot 
bind  his  client  by  prejudicial  admissions  and  advice  to  the  adversary,  unless  au- 
thorized.'^  An  attorney  for  one  of  several  parties,  who  allows  an  attorney  repre- 
sentinc^  co-parties  to  waive  objections  to  evidence  in  response  to  a  request  from 
their  adversarv,  without  attempting  to  object  on  behalf  of  his  clients,  thereby 
waives  the  objection  as  to  them.^ 

§  9.     Bights  and  liabilities  as  to  third  persons. — An  attorney  acting  in  good 


85.     Bay   V.   Trusdell.    92   Mo.    App.    377. 

Sufficiency  of  evidence  of  authority  of 
attorney  to  compromise  and  settle  the  suit 
—Diamond  Soda  Water  Mfg.  Co.  v.  Hege- 
man,    74    App.    Div.    (N.    Y.)    430. 

8G.  Strattner  v.  Wilmington  City  Electric 
Co.    (Del.    Super.)    53    Atl.    436. 

87.  Nephew  v.  Michigan  Cent.  R.  Co.,  128 
Mich.   599. 

88.  Strong   v.    Smith.    98    111.    App.    522. 

89.  Property  surrendered  by  client's  debt- 
or In  consequence  of  disclosure  was  turned 
over  to  disclosure  commissioner  for  fees — 
Davis  V.   Ferrin,   97  Me.   146. 

90.  Lowry  v.  Clark.   20  Pa.  Super.  Ct.  357. 

91.  Muir   V.   Orear.    87   Mo.   App.    38. 

92.  Budlong  v.  Budlong  (Wash.)  71  Pac. 
761. 


93.  National  Fire  Ins.  Co.  v.  Eastern  Bldg. 
&  Loan  Ass'n,  63  Neb.  698.  Contra.  Chat- 
ham Nat.  Bank  v.  Hochstadter,  11  Daly  (N. 
Y.)     343. 

94.  National  Bank  v.  Old  Town  Bank  (C. 
C.    A.)    112    Fed.    726. 

95.  Dillon  V.  Watson  (Neb.)   92  N.  W.  156. 

96.  In  re  Borkstrom,   168  N.  Y.   639. 

97.  Fisher  v.  Mclnerney,  137  Cal.  28,  69 
Pac.    622.    907. 

98.  Waterbury  v.  Waterbury  Traction  Co.. 
74  Conn.  152. 

99.  Callaway  v.  Equitable  Trust  Co..  67 
N.   J.   Law.    44. 

1.  Harvin   v.    Blackman,    T08    La.    426. 

2.  Lytle  V.  Crawford,  69  App.  Div.  (N.  Y.) 
273. 

3.  In  re  Ross,   136  Cal.  629,   69  Pac.   430. 


§  11 


PUBLIC  ATTORNEYS. 


27*> 


faith  is  not  liable  for  false  imprisonment  which  he  advised.*  The  client  is  not 
liable  for  injuries  resulting  from  acts  of  the  attorney  without  the  scope  of  his  em- 
ployment.°  On  reversal  of  a  judgment  obtained  by  a  creditor  setting  aside  trans- 
fers of  his  debtor,  prior  to  the  latter's  assignment,  as  fraudulent,  an  allowance 
of  costs  to  the  debtor's  attorneys,  based  on  the  amount  of  the  transfers  instead 
of  the  judgment,  should  be  refunded  by  the  attorneys  on  motion  of  the  creditor.* 

§  10.  Law  partnerships  and  associations. —  An  attorney  may  bind  his  partner 
for  legal  services  without  compensation,  without  the  latter's  knowledge.''  On 
dissolution,  one  attorney  may  be  substituted  for  the  firm  on  his  client's  consent,  if 
no  firm  lien  for  fees  is  prejudiced.*  Where  the  ascertained  value  of  services  ren- 
dered in  a  certain  case  by  a  firm  afterwards  dissolved,  and  by  two  members  of  the 
dissolved  firm  on  a  retrial,  cannot  be  paid  in  full,  the  fee  collected  should  be  di- 
vided pro  rata  between  the  dissolved  firm  and  the  two  members;  where  undisposed- 
of  cases  are  assigned  to  the  several  members,  each  is  entitled  to  the  returns  from 
such  cases  prosecuted  in  good  faith,  and  services  of  other  members  therein  are 
gratuitous;  such  a  settlement  of  the  firm  business  for  good  consideration  will  be 
upheld.* 

§  11.  Public  attorneys.  A.  Attorneys  general. —  In  Texas  the  attorney  gen- 
eral may  institute  and  direct  suits  in  the  district  courts  for  enforcement  of  pen- 
alties for  violation  of  the  railroad  laAvs.'"  Since  it  is  the  duty  of  the  county  at- 
torney, in  Kentucky,  to  respresent  the  state  in  proceedings  to  compel  taxpayers 
to  list  omitted  property,  an  attorney  employed  by  the  attorney  general  in  such 
a  proceeding  instituted  by  an  agent  of  the  state  auditor  cannot  recover  from  tli-^ 
state  for  his  services.^^  Where  the  superintendent  of  banking  reports  to  the  at 
torney  general  that  a  savings,  loan,  and  building  association  was  in  a  conditiot 
unfit  to  continue  business,  the  latter  may  begin  proceedings  for  dissolution  in 
the  name  of  the  people  without  a  relator.^^  In  Mississippi,  neither  the  attorney 
general  nor  the  district  attorney  is  a  necessary  party  to  quo  warranto  to  try  righ< 
to  office,"  nor,  in  Washington,  can  the  attorney  general,  on  his  own  relation,  in 
stitute  proceedings  by  qi>o  warranto  to  determine  whether  a  corporation  exer- 
cising a  public  franchise  has  usurped  its  authority  in  such  exercise.^^ 

B.  District  and  state's  or  prosecuting  attorneys. — Prosecuting  attorneys  should 
not  act  as  inquisitors  and  extort  admissions  or  confessions  from  those  accused  of 
crime.^''  On  removal  of  a  criminal  case  to  another  county,  the  attorney  of  that 
county  must  usually  prosecute  it."  An  information  filed  by  an  assistant  prose- 
cuting attorney,  where  such  an  officer  is  authorized,  will  be  presumed  to  have  been 
filed  by  a  proper  official,  duly  appointed,  unless  the  contrary  appears  from  the 
record." 


4.  Roth  V.    Shupp,   94   Md.   55. 

5.  An  attorney  for  creditors  of  an  In- 
solvent bank  will  not  render  them  liable  for 
libelous  matter  published  in  an  expert  state- 
ment, thoug-h  he  had  authority  to  make  the 
statement — Hall  v.  Baker,  66  App.  Div.  (N. 
Y.)    131. 

C.  Shotwell  V.  Dixon,  66  App.  Div.  (N.  T.) 
123. 

7.  Stone   v.    Hart,    23    Ky.    Law    Rep.    1777. 

8.  Schneible  v.  Travelers'  Ins.  Co.,  36  Misc. 
Rep.   (N.  T.)   522. 

9.  Lamb   v.    Wilson    (Neb.)    92   N.   W.    167. 

10.  Under  Const,  art.  5,  §  21.  and  article 
10.  §  2,  providing^  for  duties  of  county  at- 
torneys and  regulation  of  railroads — Moore 
V.   Bell    (Tex.)    66   S.   W.    45. 

11.  The  various  Kentucky  statutes  re- 
g-arding   the    authority   of   the    state    auditor 


and  the  attorney  general  as  to  omitted 
property  construed — Coulter  v.  Denny.  23  Ky. 
Law   Rep.   1619. 

12.  New  York  Banking  Law,  §  18,  and 
Code  Civ.  Proc.  N.  Y.  §§  1785,  1786.  1808,  con- 
strued— -People  v.  Manhattan  Real  EJstate  Co., 
74  App.  Div.   (N.  Y.)   535. 

13.  Under  Code  1892,  §§  3520,  3521— State 
V.  Morg-an.   80  Miss.   372. 

14.  Under  the  provisions  of  the  constitu- 
tion and  statutes  relating  to  such  proceed- 
ings, the  duty  is  that  of  the  prosecuting  at- 
torney of  the  proper  county — State  v.  Seat- 
tle Gas  &  Electric  Co.,  28  Wash.  488,  68  Pac. 
946.    70    Pac.    114. 

15.  State   V.    Hagan,    164   Mo.    654. 

16.  Pol.  Code  Mont.  §§  4318.  4319 — Stata 
V.  Whitworth,   26  Mont.   107,  66  Pac.  748. 

17.  State  V.   Weeks,    88   Mo.   App.    263. 


280  ATTORNEYS  AND  COUNSELORS.  §  H 

Since  special  laws  prevail  over  general  ones,  the  special  solicitor  pro  tern,  in 
a  county  governed  by  such  an  act,  and  not  one  acting  under  general  appointment, 
is  recognized."  Counsel  may  be  appointed  to  assist  in  prosecution  of  persons 
charged  with  crime,  though  prosecuting  attorneys  are  provided  for  by  statute; 
and  the  law  providing  for  appointment  of  deputies  by  county  officers  and  justices 
of  the  peace  will  not  prevent  appointment  of  assistant  prosecuting  counsel  by  the 
court."  A  special  counsel,  assisting  the  district  attorney,  but  not  under  official 
oath,  cannot  appear  before  the  grand  jury  to  assist  it  in  investigation  of  criminal 
charges.^"  That  one  appointed  as  temporary  state's  attorney  may  have  been  pri- 
vately retained  by  prosecuting  witnesses  in  tiie  case  will  not  render  him  ineligible. 
A  law  providing  for  appointment  by  the  circuit  judge  does  not  violate  a  consti- 
tutional provision  that  all  state  and  county  officers,  not  otherwise  provided  for, 
must  be  elected  by  the  people  or  appointed  by  the  governor.^^ 

A  county  attorney  cannot  enter  a  voluntary  appearance  and  confess  judgment 
against  the  county,  even  on  a  resolution  of  the  county  board  authorizing  him  to 
confess  such  judgment.^^  He  may  waive  issuance  and  service  of  summons  in  error, 
as  against  the  county,  where  he  has  appeared  for  it  at  the  trial.^' 

A  law  giving  a  county  attorney,  who  assists  at  prosecutions  in  the  circuit  court, 
a  portion  of  judgments  recovered,  will  not  entitle  him  to  such  fee  where  his  term 
expired  before  judgment,  though  he  assisted  at  the  trial. ^* 

A  commonwealth's  attorney,  taking  a  bribe  to  dismiss  an  indictment,  may  be 
indicted  for  malfeasance  in  office,  or,  under  the  statute,  for  taking  a  bribe,  in 
either  case  the  punishment  being  limited  to  that  prescribed  by  the  statute  if  the 
facts  shown  constitute  the  statutory  offense.  Impeachment  is  not  necessary  before 
indictment  and  punishment  for  such  malfeasance.^* 

Decisions  under  various  local  laws,  and  for  that  reason  peculiar,  follow,  ar- 
ranged by  states, 

Arkansas. — The  prosecuting  attorney  cannot  claim  a  fee  where  present  by 
deputv  in  an  assault  and  battery  case.^® 

Colorado}'' — The  district  court,  in  its  discretion,  may  appoint  counsel  to  as- 
sist the  district  attorney  in  criminal  cases,  and  the  county  must  pay  for  his  serv- 
ices. Allowance  by  the  district  court  of  fees  to  such  attorney  is  at  least  prima 
facie  evidence  of  the  value  of  his  services.-^  Under  a  law  which  applies  to  the 
emergency  in  case  the  district  attorney  fails  to  appear,  the  court  cannot  appoint 
an  attorney  to  prosecute  crime,  at  expense  of  the  county,  merely  because  the  dis- 
trict attorney  was  disqualified  because  he  had  been  attorney  for  defendant  on  a 
former  trial  before  entering  his   office.     The   attorney  general   is   empowered   to 


18.  In  prosecutions  for  misdemeanors  In 
countv  court — The  special  act  for  Marengo 
county  (Acts  Ala.  1882-1883.  p.  647)  pre- 
vails over  Code  Ala.  §  5537  et  seq. — Douglass 
V.  Prowell,   130   Ala.   580. 

19.  State  V.  Wiiitworth,  26  Mont.  107,  66 
Pac.   748. 

20.  Under  Code  Crim.  Proc.  §  313,  subd. 
2,  and  §§  262-264 — People  v.  Scannell,  36 
Misc.    Rep.    (N.   Y.)    40. 

21.  Construction  of  Rev.  St.  §  1354,  re- 
quiring only  admission  to  the  bar  as  qual- 
ification for  temporary  appointment,  and 
Const.  1885,  art.  3,  §  27 — King  v.  State  (Fla.) 
31    So.    254. 

22.  Custer  County  v.  Chicago,  B.  &  Q. 
R.  Co..  62  Neb.  657. 

23.  Dakota  County  v.  Bartlett  (Neb.)  93 
N.   W.    192. 


24.  Ky.  St.  §  133 — Spalding  v.  Hill,  24  Ky. 
I.aw  Rep.  1802.  72  S.  W.  307. 

2.'».  St.  §  1366,  Const.  §  68 — Commonwealth 
V.   Rowe,    23  Ky.   Law  Rep.   1718. 

26.  Under  Acts  Ark.  1883,  p.  301,  §  2, 
JTansf.  Dig.  §  3233.  Sand.  &  H.  Dig.  §§  6010, 
6011,  and  Act  1895,  amending  Sand.  &  H. 
Dig.  above,  all  providing  for  deputy  prose- 
cuting attorneys  and  the  fees  in  prosecu- 
tions by  such  deputies — State  v.  McNalr,  70 
Ark.   65. 

27.  Fixing  compensation  of  deputy  district 
attorney  as  constitutional — Jl'-rwin  v.  Board 
Com'rs  of  Boulder  County.  29  Colo.  169,  67 
Pac.    285. 

28.  Board  Com'rs  of  Hinsdale  County  v. 
Crump  (Colo.  App.)   70  Pac.  159. 


§  11 


PUBLIC  ATTORNEYS. 


281 


appoint  special  counsel  to  represent  the  state  under  another  statute."  The  judge 
of  the  district  court  may  appoint  an  attorney  to  represent  the  state  before  the  grand 
jury,  where  it  appears  that  the  district  attorney  has  been  involved  in  offenses  with- 
out first  proceeding  to  remove  or  prosecute  the  latter.'"  Where  the  supervisors 
of  a  county  employed  an  attorney  to  collect  certain  money  due  the  county  from 
the  state  on  a  contingent  fee,  which  he  retained  from  the  amount  collected,  the 
district  attorney  cannot  sue  for  recovery  of  the  contingent  fee,  as  a  claim  allowed 
by  the  supervisors  without  authority  of  law.'^  The  fees  of  a  "district"  attorney 
do  not  come  within  the  sections  of  the  constitution  providing  that  the  compensa- 
tion of  all  county  and  precinct  ofiScers  shall  be  as  fixed  by  law,  since  he  is  a  dis- 
trict officer,  and  the  allowance  of  his  fees  for  representing  the  state  before  jus- 
tices of  the  peace  is  in  the  discretion  of  the  county  commissioners.  The  law  pro- 
viding for  such  allowance  was  not  repealed  by  a  subsequent  law  on  the  same  sub- 
ject. ^^  A  law  giving  county  commissioners  discretion  in  allowance  of  fees  to 
district  attorneys  is  not  imconstitutional  as  depriving  such  attorneys  of  property 
without  due  process  of  law,  nor  as  conferring  judicial  power  on  a  body  not  in- 
cluded in  the  courts  specified  in  the  constitution,  nor  is  the  law  invalid  as  con- 
ferring power  in  a  proviso.  In  disallowing  claims  for  such  fees,  the  commission- 
ers are  not  required  to  S|.read  the  reasons  for  disallowance  on  their  records.  The 
allowance  is  wholly  discretionary,  and  not  liable  to  review  by  the  courts;  but  if 
the  right  of  appeal  were  conceded,  the  court,  on  review,  could  not  fix  the  amount 
of  the  fees, — that  power  residing  wholly  in  the  commissioners.'*  A  district  at- 
torney, who  allowed  a  county  attorney  to  enter  his  appearance  as  attorney  for  the 
county  commissioners  in  a  suit  on  a  county  officer's  bond,  but  performed  no  actual 
services  in  the  suit,  which  was  dismissed  by  the  county  attorney  on  compromise, 
is  not  entitled  to  his  statutory  fee  for  collections.'* 

Iowa. — The  county  attorney  properly  takes  an  appeal  to  the  supreme  court  in 
a  criminal  case,  and  gives  notice  thereof,  and  the  attorney  general  has  no  author- 
ity until  the  case  has  reached  that  court."  A  former  county  attorney  is  not  pre- 
vented from  appearing,  after  expiration  of  his  term,  for  a  woman  in  an  action 
for  damages  for  a  sale  of  liquor  to  her  husband,  merely  because  defendant  was 
indicted  during  his  term  for  a  distinct  sale." 

Kentucl:y. — The  attorney  for  the  commonwealth  is  not  required  to  make  the 
opening  statement  to  the  jury  in  a  criminal  trial ;  his  statement  that  he  omitted  the 
facts  of  the  charge  because  unfamiliar  with  them  will  be  taken  as  true.'^ 


29.  Pen.  Code,  §  1130,  does  not  provide 
for  such  emerg-ency,  Pol.  Code,  §  472,  provid- 
ing- for  appointment  by  the  attorney  g-eneral 
— Toland  v.  Ventura  County,  135  Cal.  412, 
67   Pac.    498. 

30.  People  V.  District  Court,  29  Colo.  5, 
66   Pac.    896. 

31.  Under  St.  Cal.  1897,  p.  463,  §  25,  subd. 
16,  providing-  that  the  supervisors  shall  di- 
rect all  suits  in  which  the  county  is  a 
party;  and  section  8,  providing-  for  suits 
by  the  district  attorney  to  recover  money 
paid  by  the  supervisors  -without  authority 
of  law — Contra  Costa  County  v.  Soto  (Cal.) 
70    Pac.    1019. 

32.  Sess.  Laws  1891,  pp.  213,  214,  §  8, 
and  page  223,  §  1,  subd.  6,  providing  for  such 
allowance,  are  not  affected  by  Const,  art.  14. 
§§  7,  15;  and  the  statute  flrst  mentioned  was 
not  repealed  by  the  second,  though  on  the 
same  subject,   their  provisions  not  being  re- 


pug-nant — Merwln  v.  Board  Com'rs  of  Bould- 
er County,   29  Colo.   169,   67  Pac.   285. 

33.  Laws  1891,  pp.  213,  214,  construed  In 
connection  with  Const,  art.  2,  §  25,  and  ar- 
ticle 6,  §  1 — Merwin  v.  Board  Com'rs  of 
Boulder  County,  29  Colo.  169,  67  Pac.  285; 
on  the  question  of  review  by  the  courts, 
see,  also.  Board  of  Yuma  County  Com'rs  v. 
Pendleton  (Colo.  App.)  67  Pad.  911,  constru- 
ing 3  Mills'  Ann.  St.  §  1905. 

34.  Under  Mills'  Ann.  St.  §  1^51,  provid- 
ing- 'that  the  district  attorney  should  repre- 
sent counties  In  his  district  in  suits,  and  sec- 
tion 1873,  providing  his  fee  for  collections^ 
McMullin  V.  Board  Com'rs  of  Montrose  Coun- 
ty (Colo.  App.)  70  Pac.  449. 

3.5.  Code,  §§  5448,  5449.  and  §§  301,  208 — 
State  v.  Grimmell,  116  Iowa,  596. 

36.  Under  Code,  §  305 — Bellison  V.  Apland, 
115    Iowa,    599. 

37.  Crim.  Code  Prac.  §  2?0 — Hendrickson 
V.    Com.,    23   Ky.   Law   Rep.    1191. 


282 


ATTORNEYS  AND  COUNSELORS. 


§  n 


Louisiana. — The  district  attorney  may  represent  the  state  in  cases  of  assault 
in  magistrates'  courts,  and  his  right  to  do  so  may  be  enforced  by  mandamus  when 
denied  by  the  magistrate.^* 

Missoun.^^ — The  necessity  for  appearance  by  the  prosecuting  attorneys  in  crim- 
inal cases  in  the  court  of  appeals,  and  their  compensation  for  services  and  expenses, 
are  to  be  settled  by  the  county  court  when  the  claim  is  presented,  or  by  the  cir- 
cuit court  on  appeal  therefrom,  as  questions  of  fact  from  the  evidence  adduced;*" 
hence  evidence  that  he  did  so  without  an  order  of  the  county  court  is  not  admis-. 
sible." 

New  Hampshire. — Under  the  general  course  of  legislation  relating  to  duties 
and  compensation  of  county  solicitors  and  justices  of  the  peace,  a  county  solicitor, 
who  was  also  a  justice,  cannot  claim  fees  for  drawing  complaints  and  warrants  in 
cases  which  it  was  his  duty  to  prosecute,  whether  they  were  mentioned  specifically 
in  the  statutes  or  not.*^ 

New  York. — Laws  1874,  c.  333,  §  2,  providing  for  employment  of  counsel  to 
assist  the  district  attorney,  impliedly  repealed  Laws  1872,  c.  733.*^  The  fees  of 
an  attorney  who  was  employed  to  assist  the  county  attorney  in  a  criminal  case, 
and  who  assisted  on  appeal  to  the  court  of  appeals,  on  a  motion  for  a  new  trial 
and  for  change  of  place  of  trial,  and  on  a  second  trial  before  another  justice  in 
another  county,  cannot  be  certified  by  the  latter  justice  in  the  court  of  appeals 
to  enable  him  to  maintin  certiorari  to  review  the  action  of  the  board  of  supervisors 
in  reducing  the  amount  so  certified.**  Where  a  particular  county  is  exempted  from 
operation  of  a  law  providing  for  payment  by  counties  of  fees  and  expenses  of  coun- 
sel to  aid  the  district  attorney,  a  certificate  of  a  justice  within  such  county  for  com- 
pensation of  such  counsel  will  impose  no  liability  on  the  county.*'' 

Oklahoma. — Territorial  district  courts  cannot  appoint  a  county  attorney  ex- 
cept in  absence  of  the  regular  attorney,  or  on  his  inability  to  perform  his  office, 
or  in  case  of  a  vacancy.  The  inability  to  perform  duties  must  be  from  physical 
or  mental  incapacity,  not  mere  lack  of  experience  or  incapacity  to  conduct  a  prose- 
cution. The  district  court  cannot  restrict  or  supersede  his  authority  except  when 
he  is  disqualified  or  unable  to  perform  his  duties.  He,  and  not  the  court,  has 
power  to  appoint  his  assistants.*®  He  should  bring  a  suit  within  the  county,  for  the 
public,  to  prevent  misappropriation  of  funds  by  public  officers.*^ 

Tennessee. — The  costs  allowed  a  district  attorney  general  in  an  inheritance  tax 
suit  must  be  turned  over  to  the  state.** 

Texas.*^ — The  district  attorney  for  the  county  in  which  a  suit  is  brought  to 


SS.     state   V.    Brown,    106    La.    437. 

39.  Informations  griven  to  the  criminal 
court  in  a  county  of  between  50.000  and 
7B.000  population  must  be  made  In  the  name 
of  the  assistant  prosecuting:  attorney,  ap- 
pointed and  paid  by  the  prosecuting  attor- 
ney himself.  Under  Rev.  St.  1879.  §  4975, 
providing  for  appointment  of  assistant,  and 
section  4991 — State  v.  "Weeks.  88  Mo.  App.  263. 

40.  Rev.  St.  1S99.  §  4951 — Meador  v.  Texas 
County,   167  Mo.   201. 

41.  Meador  v.  Texas  County,   167  Mo.   201. 

42.  See  the  various  statutes  cited  in  the 
opinion  as  showing  the  course  of  legisla- 
tion— Fletcher  v.  Merrimack  County,  71  N. 
H.    96. 

43.  People  V.  Coler.  65  App.  Div.  (N.  T.; 
217. 

44.  Under  Laws  1892.  c.  686.  providing 
that  the  costs  and  expenses  of  such  assist- 
ant shall  be  certified  by  the  judge  presiding 


at  the  trial — People  v.  Board  Sup'rs  of  Gene- 
see  County,    168   N.    T.    640. 

4.'».  Under  various  statutes  cited  In  the 
opinion,  and  construed  with  reference  to 
the  county  of  New  Tork — People  v.  Coler. 
65    App.    Div.    (N.    T.)    217. 

46.  The  circumstances  are  limited  to  the 
conditions  prescribed  by  St.  1893.  c.  22.  art. 
5.  §  9 — Mahaffey  v.  Territory,  Itl  Okl.  213.  66 
Pac.   342. 

47.  Board  of  Education  v.  Territory  (Okl.) 
70    Pac.    792. 

48.  Under  Acts  1897,  c.  41,  fixing  the 
compensation  of  district  attorneys  general, 
and  providing  that  costs  taxed  against  the 
losing  party  must  be  turned  over  to  the 
state — Harrison  v.  Johnston  (Tenn.)  70  S. 
W.    414. 

49.  See  Black  v.  State  (Tex.  Cr.  App.) 
65    S.    W.    906,    for   conduct    of   criminal   trial 


iZ 


AUCTION— BAIL.  IN  CIVIL,  ACTIONS. 


283 


recover  a  penalty  for  violation  of  the  railroad  laws  cannot  appear  for  the  county 
inless  by  request  of  the  railroad  commission,  and  appearing  without  such  author- 
ty  can  recover  no  fees.'* 


AUCTIONS  AND  AUCTIONEERS. 

License  and  regulation.^^ — Under  laws  requiring  a  license  of  transient  merchants 
yho  would  sell  at  auction,  the  merchant  must  be  licensed,  though  another  actually 
s  the  auctioneer,  or  though  the  merchant  acts  as  agent  for  a  mortgagee.  The 
•easonableness  of  such  an  ordinance  is  for  the  court,  and,  in  the  absence  of  com- 
petent evidence  to  the  contrary,  it  will  be  presumed  that  the  tax  is  reasonable.*^ 
[in  auctioneer's  license  fee  of  $3,500  has  been  held  unreasonable  and  illegal.*' 
I  Sale;  fees;  liability  on  bond. — Both  purchaser  and  seller  are  bound  by  publicly 
|)roclaimed  terms  of  an  auction."  Purchasers  at  an  auctioneer's  sale  are  not  en- 
titled to  recover  part  of  the  price  paid,  under  an  agreement  with  the  auctioneer 
jhat  the  time  of  payment  should  be  extended  and  a  mortgage  given  for  the  remain- 
;ler  of  the  price,  where  no  authority  is  shown  in  the  auctioneer  to  give  the  exten- 
;ion  and  the  purchasers  have  not  complied  with  the  contract  as  alleged  by  them.** 
llepresentations  by  the  auctioneer,  which  the  purchaser  did  not  hear  or  rely  upon 
'n  buying,  cannot  be  urged  by  him  as  fraud  to  set  aside  the  sale.**  Under  a  law 
l^iving  auctioneers  a  certain  percentage  of  movable  and  immovable  property  as 
ees,  where  both  movable  and  immovable  property  are  sold  together,  the  appraise- 
jaent  must  be  taken  as  the  basis  of  computation.*^  The  surety  on  an  auctioneer's 
|>ond  is  liable  for  his  failure  to  account  for  proceeds  of  a  sale.** 
i 

BAIL  IN  CIVIL  ACTIONS. 

§  1.  Occasion,  necessity,  lands,  and  distinctions. — Where  special  bail  is  de- 
jnandable  of  a  defendant  who  would  make  defense,  he  cannot  oppose  a  motion  for 
it  by  grounds  which  constitute  a  defense,  e.  g.,  defective  service.* 
I  §  2.  The  bail-piece;  security  or  sureties. — A  bond  omitting  the  name  of  de- 
jendant  in  the  recitals  is  not  invalid  where  the  omission  may  be  supplied  with 
,'ertainty  from  the  instrument  itself,^  and  may  be  a  common-law  bond  if  it  does. 
Iiot  comply  in  its  conditions  with  the  statute.'  The  bond  is  not  affected  by  an 
,mission  to  note  on  the  writ,  pursuant  to  a  directory  act,  that  the  bond  taken  on 
inesne  process  has  been  filed.*     The  amount  on  execution  against  the  person  should 


iy  prosecuting  attorney,   criticism,    and   ex- 
j'lanation    of   duties. 

I  50.     Rev.     St.     arts.     4577,     4579 — Moore    v. 
)5ell,    95    Tex.    151. 

'  51.  A  real-estate  auctioneer,  in  addition  to 
I  specific  tax,  must  pay  an  additional  %  of 
;%  on  the  amount  of  tlie  sale;  statutes  con- 
strued to  determine  whicii  of  two  given 
iiodes  of  assessing  license  taxes  shall  be 
jsed  (Act  1889-90,  c.  244.  §§  44,  50) — Adams 
|.  Walker  (Va.)  42  S.  E.  866. 
j  52.     Iowa  City  v.  Newell,  115  Iowa,  55. 

53.     Margolies    v.    Atlantic    City,    67    N.    J. 
|iaw,   82. 

j  54.     Chandler  v.  Morey,  195  111.  596. 
!  55.     McKlernan  v.  Valleau,   23   R.  I.  501. 
'  56.     Burnett  v.   Hensley    (Iowa)    92   N.   W. 
78. 

j  57.     Under  Acts  La.  1896,  No.  104 — Barry  v. 
i.merican    "White   Lead    &    Color   Works,    107 
i«.    236. 
I  58.     Under  Laws  N.  Y.  1897,  c.  682,  requir- 


ing licenses  and  bonds  from  auctioneers  in 
cities  of  a  certain  size,  which  was  extended 
to  Greater  New  York  without  the  approval 
of  Its  officers,  because  in  force  when  the  new 
charter  went  Into  effect — Saul  v.  United 
States  F.  &  G.  Co.,  71  App.  Div.  (N.  Y.)  77. 
Sufficiency  of  complaint.  In  action  against  a 
surety  on  an  auctioneer's  bond  for  failure 
of  the  latter  to  account  for  proceeds  of  a 
sale,  as  to  averments  that  the  auctioneer  was 
licensed  fpr  a  certain  year — Saul  v.  United 
States   F.  &  G.  Co.,    71   App.   Div.    (N.   Y.)    77. 

1.  Gen.  St.  §  957;  Practice  Act,  §  1,  makes 
such  plea  a  "defense" — Bergkofskl  v.  Ruzof- 
ski,  74  Conn.   204. 

2.  Reeg  V.    Adams,    113   Wis.    175. 

3.  Conditions    required    by    Rev.    St.    Wis. 

1898,    §    3034,    in    bond    of    arrested    debtor 

Straw  V.   Kromer,   114  Wis.   91. 

4.  Construing  Rev.  St.  Me.  c.  85,  §  1 — 
S.  N.  Maxcy  Mfg.  Co.  v.  Bowie,  96  Me.  435. 


284 


BAIL  IN  CRIMINAL.  PROCEEDINGS. 


8  1 


not  exceed  $5,000.'  The  court  may  reduce  the  amount  of  bail,  though  it  was  given 
without  objection  or  reservation  of  right  to  ask  for  reduction.® 

§  3.  Rights  and  liabilities;  forfeiture,  exoneration,  and  discharge. — Bail  for 
appearance  of  one  arrested  on  a  capias  are  his  custodians  and  may  take  him  where 
they  wish  and  surrender  him  to  the  officer.''  A  bond  to  appear  as  a  witness  is 
satisfied  if  appearance  be  made  by  attorney  on  the  first  continuance,  though  no 
appearance  was  made  thereafter.*  The  surety  on  an  undertaking,  for  discharge 
of  a  defendant  in  an  action  for  fraudulent  conversion,  who  is  liable  under  its 
terms  for  disobedience  of  any  order  of  the  court,  requiring  performance  of  acts 
specified  in  the  order  of  arrest,  is  not  liable  for  default  as  to  directions  which  the 
court  could  not  give,  though  execution  against  both  property  and  person  was  re- 
turned without  results.®  It  will  not  be  presumed  that  money  deposited  in  lieu  of 
bail  belongs  to  the  person  bailed,  where  it  appears  certainly  that  a  third  person 
paid  the  money  and  received  a  receipt  from  the  sheriff.^"  Defendant  cannot  be 
discharged  in  trover,  bail  being  required,  on  a  mere  finding  that  he  cannot  pro- 
duce the  property;  it  must  appear  that  he  cannot  give  security,  and  that  his 
reasons  for  not  producing  the  property  are  sufficient.^^  Discharge  of  one  arrested 
under  a  capias,  though  erroneous,  relieves  him  from  restraint  and  his  bail  from 
liability." 

§  4.  Enforcement  of  hail-piece;  procedure. — A  complaint  on  a  bail  bond  need 
not  show  that  the  sheriff  delivered  a  copy  of  the  bond  to  the  plaintiff  as  required 
by  statute.^' 

BAIL  IN  CRIMINAL  PROCEEDINGS. 


Anthorlty  to  Take  and  Right  to  Give 

Application  for  Ball. 

Making-   Recognizance  and  Sufficiency. 
Fulfillment       and       Forfeiture;       Dis- 


§  5     Enforcement     of     Bond     or     Recogni- 
zance. 

§  6.     Remission   of   Forfeiture   and    Return] 
of  Deposit*. 


5  1. 

Ball. 

§  2. 

§  3 

5  4. 
charge;  Rights  and  Liabilities  of  Sureties. 

§  1,  Authority  to  take  and  right  to  give  tail. — The  circuit  court  of  appeals 
of  the  United  States  is  empowered,  and  generally  it  is  its  duty,  to  admit  to  bail 
after  conviction  of  a  crime,  not  capital,  pending  a  writ  of  error.  The  writ  stays 
execution,  but  such  stay  does  not  concern  the  question  whether  defendant  shall 
go  at  large  on  bail.  The  right  will  not  be  denied  because  defendant  has  been 
tried  and  convicted  three  times  on  the  same  indictment,  but  will  be  allowed  for 
sufficient  time  only  to  insure  the  filing  of  a  transcript  in  that  court  and  the 
question  of  further  bail  should  be  left  until  such  time  has  elapsed.^  A  United 
States  commissioner  may  be  admitted  to  bail  when  charged  with  contempt  of  a 
federal  court.^  Bail  cannot  be  allowed  after  a  conviction  of  a  felony,  unless  for 
an  extraordinary  cause  not  growing  out  of  the  crime,^  but  may  be  allowed  pending 
appeal  from  a  conviction  for  manslaughter  where  the  law  governing  its  allow- 


5.  Sibley  V.    Smith,    67   App.   Dlv.    (N.   T.) 
B14. 

6.  Code  Civ.   Proc.   N.   Y.   §   567 — Sibley   v. 
Smith,    67    App.   Dlv.    (N.   T.)    514. 

7.  People  V.   Hathaway,   102   III.   App.   628. 
Straw  V.   Kromer,   114.  Wis.    91. 
Bristol   V.    Graff,    79    App.   Div.    (N.    T.) 


8. 

9. 

426. 

10 


Flnellte  v.  Sonberg,  75  App.  Dlv.  (N. 
Y.)    455. 

11.     Shlnholser  v.  Jordan,  115  Ga.  462. 

13.     People  v.  Hathaway.  102  111.  App.   628. 

13.  The  provision  under  Sanb.  &  B.  Ann. 
St.  §  2702,  is  merely  to  give  plaintiff  a  chance 


to   refuse   the   sureties— Reeg  v.   Adams,    113 
Wis.    175. 

1.  Under  26  Sts.  829,  §  11,  Rev.  St.  1007, 
and  rule  38  of  the  circuit  court  of  appeals, 
conviction  for  embezzlement  of  funds  of  na- 
tional bank — McKnight  v.  United  States  (C. 
C.  A.)    113   Fed.    451. 

2.  Under  Rev.  St.  §  1014,  and  Act  May  28, 
1896 — Castner  v.  Pocahontas  Collieries  Co., 
117    Fed.    184. 

3.  Such  as  Illness  aggravated  by  Impris- 
onment or  strong  reason  for  apprehension 
that  imprisonment  will  result  fatally — Ex 
parte  Hill,  51  W.  Va.   536. 


M 


BAIL  IN  CRIMINAL  PROCEEDINGS. 


285 


ance  was  changed  after  conviction  but  before  sentence.*  A  statute  authorizing 
the  city  recorder  to  require  bail  for  appearance  before  the  court  authorized  to  try 
the  offense,  where  it  appears  that  a  prisoner  is  probably  guilty,  does  not  violate 
the  14th  amendment  of  the  federal  constitution.*^  A  bond  taken  as  a  bail  bond 
by  a  sheriff  without  legal  authority  cannot  be  enforced  as  a  common-law  bond.® 
The  supreme  court  of  appeals  of  West  Virginia  may  award  habeas  corpus  solely 
to  obtain  bail  and  to  grant  bail  in  case  of  a  felony.'' 

§  2.  Application  for  bail. — If  one  convicted  of  embezzling  funds  of  a  na- 
tional bank  is  denied  bail  pending  a  writ  of  error,  further  application  should  be 
made  to  the  appellate  court  unless  great  urgency  exists.^ 

§  3.  Making  of  recognizance  and  sufficiency.^ — A  recognizance  in  a  criminal 
appeal  must  require  defendant  to  appear  before  the  court  to  submit  to  judgment 
on  appeal,^"  and  if  the  bond  is  given  after  amendment  of  the  code,  it  must  con- 
form thereto  as  to  requirements  for  such  appearance. ^^  In  misdemeanor  cases 
the  bond  must  show  the  amount  of  the  fine  assessed,^^  and  whether  defendant 
was  ever  convicted  in  any  court  of  any  offense,  or  charged  with  misdemeanor,  what 
punishment  was  imposed,  and  whether  the  violation  was  of  a  city  ordinance  or 
a  statute,^^  and,  on  appeal  from  the  judgment  of  the  county  court  dismissing  a 
misdemeanor,  appeal  from  the  corporation  court  must  state  whether  defendant 
has  been  convicted  of  a  misdemeanor  in  any  court,  the  amount  of  fine  imposed 
and  whether  the  case  has  been  dismissed  in  the  county  court. ^*  A  condition  in 
a  recognizance  requiring  defendant's  presence  at  the  hearing  of  the  motion  for 
a  new  trial  may  be  enforced. ^'^  An  instrument,  in  form  a  recognizance,  prepared 
and  signed  by  the  sureties  before  arrest  and  certified  the  next  day  by  the  justice 
as  taken  before  him  in  due  form,  is  void."  A  recognizance  requiring  appearance 
at  the  next  term  of  "the  court  of  oyer  and  terminer  and  quarter  sessions  of  the 
peace"  is  valid,  where  the  offense  may  be  tried  in  either  court,  whether  it  uses 
the  word  court  in  the  plural  or  singular.^''  A  condition  that  defendant  shall 
pay  any  judgment  rendered  against  him  is  not  required  in  a  recognizance  on 
appeal  from  a  case  before  a  police  judge  for  violation  of  a  city  ordinance  and 
may  be  treated  as  surplusage."  A  bond  on  appeal  from  a  justice  to  the  crim- 
mal  district  court,  conditioned  to  appear  at  the  present  regular  term  instead  of 
the  next  term  of  court  as  required,  is  insufficient.^^  If  the  court  thinks  a  bond 
insufficient,  it  may  order  a  new  bond  and  place  defendant  in  custody,  if  he 
fails  to  comply  after  notice,^"  but  after  persons  charged  with  crime  have  entered 


4. 

813. 
S. 
6. 
7. 

8. 


Territory  v.  Cooper,  11  Okl.  699,  69  Pac. 


Parks  V.   Nelms,   115  Ga.   242. 
State    V.    Frazer,    165    Mo.    242. 
Ex    parte   Hill.    51    W.    Va.    536. 
McKnight   v.   United    States    (C.    C.    A.) 
113    Fed.    451. 

9.  Form  for  recognizance  on  appeal  in 
misdemeanor — Horton  v.  State  (Tex.  Cr. 
App.)  68  S.  W.  172.  Sufficiency  of  showing 
to  reduce  bail  from  $3000  to  $1500  on  arrest 
for  murder — Hernandez  v.  State  (Tex.  Cr. 
App.)  72  S.  W.  840;  to  reduce  bail  from  $2000 
to  $250  on  arrest  for  assault  with  intent 
to  murder — Sancedo  v.  State  (Tex.  Cr.  App.) 
70  S.   W.    546. 

10.  Bolton  V.  State  (Tex.  Cr.  App.)  69  S. 
W.   525. 

11.  Under  Code  Cr.  Proc.  art.  889.  amend- 
ed by  the  act  of  the  27th  legislature  which 
went  into  effect  July  18th,  1901 — Martin  v. 
State    (Tex.    Cr.    App.)     69    S.    W.    508. 

12.  Under  Code  Cr.  Proc.  art.  887 — "Webei 


V.  State  (Tex.  Cr.  App.)  68  S.  W.  269;  De 
Valeria  v.  State  (Tex.  Cr.  App.)  67  S.  W. 
1020. 

13.  Under  Code  Cr.  Proc.  art.  887 — Hor- 
ton V.  State  (Tex.  Cr.  App.)  68  S.  W.  172; 
Roberts  v.  State,  Id.  272;  Bolton  v.  State 
(Tex.  Cr.  App.)  69  S.  W.  525;  Kapps  v. 
State  (Te"x.  Cr.  App.)  70  S.  W.  83;  Bertoni 
V.  State  (Tex.  Cr.  App.)  71  S.  W.  963. 

14.  Under  Code  Cr.  Proc.  art.  827— ^Rob- 
erts V.   State   (Tex.  Cr.   App.)    68   S.  W.   272. 

15.  State  V.  Abel.   170  Mo.   59. 

16.  Clute  V.  Ionia  Circuit  Judge  (Mich.) 
91   N.   W.   159. 

17.  Commonwealth  v.  Meeser,  19  Pa. 
Super.   Ct.    1. 

IS.  Under  Rev.  St.  1899,  §§  2784  and  5805 
— Howlett  V.   Turner,   93   Mo.   App.    20. 

10.  The  appeal  will  be  dismissed — Mar- 
shall V.  State  (Tex.  Cr.  App.)  70  S.  W.  550; 
Baxstrum    v.    State,    Id.    748. 

20.     State  V.  Byermann  (Mo.)  72  S.  W.  539. 


286 


BAIL   IN  CRIMINAL   PROCEEDINGS. 


recognizance  for  appearance  at  a  certain  term,  to  await  the  action  of  the  grand 
jury,  and  have  appeared,  they  cannot  be  required  to  enter  a  new  recognizance  for 
appearance  at  a  subsequent  term  though  the  grand  jury  was  not  in  session.^*  A 
justice  has  no  authority  to  change  the  amount  of  a  bail  bond  fixed  by  an  order 
of  the  circuit  court  remanding  one  charged  with  seduction  to  custody  to  await 
the  action  of  the  grand  jury.-^  An  additional  bail  bond  executed  by  defendant 
and  surety  under  order  of  court  abrogates  the  original  bond,  and  defendant's  com- 
pliance with  the  order  waives  arrest  so  that  the  surety  cannot  object  that  he  was 
not  in  custody  or  under  arrest  when  the  new  bond  was  given.^' 

§  4.  Fulfillment  or  forfeiture;  discharge;  righis  and  liahilities  of  sureties. — 
A  bail  bond  is  operative  after  appearance  until  all  preliminary  motions  are  settled 
so  that  trial  may  commence  and  flight  of  defendant  before  such  settlement  will 
render  his  sureties  liable.^*  Failure  of  defendant  to  appear  at  a  subsequent  term 
to  which  a  cause  is  continued,  without  renewal  of  a  recognizance  conditioned  that 
the  accused  shall  appear  at  the  next  term  of  the  district  court,  is  not  a  breach 
of  the  bond,^^  and  failure  of  defendant  to  appear  after  reversal  for  failure  of 
jurisdiction,  and  remand  of  the  case  for  disposal  according  to  law,  is  not  a  viola- 
tion of  an  undertaking  requiring  him  to  surrender  himself  "in  execution  of  the 
judgment,  if  affirmed  or  modified,  or  reversed  and  the  case  remanded  for  a  new 
trial,  or  the  appeal  is  dismissed."^®  A  bond  on  appeal  from  a  conviction  in  a 
justice  court  conditioned  that  defendant  would  prosecute  the  appeal  with  effect 
and  pay  the  fine  and  costs  adjudged  against  him  cannot  be  forfeited  as  to  the 
sureties  while  he  stands  ready  to  meet  such  obligations."  Persons  who  enter  a 
recognizance  to  appear  at  a  certain  term  to  await  the  action  of  the  grand  jury 
on  a  criminal  charge  fulfill  the  condition  if  they  appear  though  the  grand  jury 
was  not  in  session,  and  the  court  could  not  compel  them  to  enter  a  recognizance 
to  appear  at  a  subsequent  term.^*  A  judgment  of  forfeiture  cannot  be  entered 
ac^ainst  one  who  asked  and  was  promised  the  court's  indulgence  because  of  absence 
of  his  counsel  without  giving  him  a  reasonable  opportunity  to  procure  counsel.^'. 
Sureties  on  a  recognizance  on  appeal  from  a  conviction  for  a  misdemeanor  can- 
not relieve  themselves  from  liability  by  surrendering  the  defendant,^"  and  surrender 
of  accused  by  his  surety  in  another  parish  from  the  one  in  which  the  bond  was 
given  cannot  discharge  the  surety.^^  Failure  of  the  record  to  show  that  the  court 
did  not  have  jurisdiction  of  defendant,  or  that  the  proceeding  for  forfeiture  of 
the  recognizance  was  dismissed  as  to  him,  will  not  affect  the  validity  of  the  judg- 
ment of  forfeiture  as  against  the  surety."  The  amount  of  forfeiture  need  not 
be  stated  in  the  judgment,*^  and  where  an  additional  bond  was  given,  the  orig- 
inal being  abrogated,  a  declaration  of  forfeiture  need  not  specify  which  bond  was 


21.  Recognizance  given  before  justice — In 
re  Tomer  (Del.)  3  PennewlU.  31. 

22.  Hall   V.   State.    130   Ala.    139. 

23.  Under  Rev.  St.  1899,  §  2543 — State  v. 
Eyermann    (Mo.)    72    S.    W.    539. 

24.  Applications  for  change  of  venue,  a 
continuance,  and  a  demurrer  to  the  juris- 
diction decided  against  defendant  were  pass- 
ed upon  but  the  decision  as  to  continuance 
and  the  demurrer  were  not  entered  or  an- 
nounced, under  Code  Cr.  Proc.  arts.  635,  641, 
303-310.  577.  591 — Fossett  v.  State  (Tex.  Cr. 
App.)   67  S.  W.  322. 

25.  The  order  is  limited  to  the  term  at 
which  continuance  Is  given — Perkins  v.  Mil- 
ton (Neb.)  90  N.  W.  756. 


26.  State  V.  Candland    (Utah)    70  Pac.   403. 

27.  Humphries  v.  State  (Tex.  Cr.  App.) 
69   S.    W.    527. 

38.  Recognizance  taKen  before  justice — 
In   re   Tomer   (Del.)    3   Pennewill,   31. 

29.  Humphries  v.  State  (Tex.  Cr.  App.)  69 
S.   W.   527. 

SO.  Code  Cr.  Proc.  arts.  310,  318.  324,  327 
authorizing  such  surrender  applies  only  to 
bail  bonds — Talley  v.  State  (Tex.  Cr.  App.) 
69    S.    W.    514. 

31.  Under  Rev.  St.  §  1033 — State  v.  Mil- 
ler  (La.)    33   So.   57. 

32.  State  V.   Eyermann   rMo.)   72  S.  W.  639. 

33.  Under  Rev.  St.  1899.  §  2800 — State  v. 
Eyermann    (Mo.)    72  S.  W.   539. 


S  b 


BAIL  IN  CRIMINAL  PROCEEDINGS. 


287 


forfeited."*  Failure  to  mark  a  recognizance  as  filed  and  to  note  the  fact  on  the 
quarter  session's  docket  will  not  render  an  adjudication  of  forfeiture  void  in  an 
action  on  the  recognizance.^^  A  default  of  a  recognizance  entered  by  action  of 
the  prosecuting  attorney,  after  final  adjournment  of  the  term  and  on  reassembling 
of  the  court  in  the  night,  may  be  set  aside  or  vacated  in  a  direct  proceeding  as 
a  fraud,  and  a  cross  complaint  in  an  action  on  the  bond  setting  up  such  facts, 
is  such  a  direct  proceeding;^®  but  the  forfeiture  cannot  be  attacked  collaterally  in 
an  action  on  the  bond  by  answering  that  the  forfeiture  was  not  taken  during  the 
term,  but  after  adjournment  and  during  vacation,  where  the  record  does  not 
show  that  it  was  not  taken  during  the  term.^^  Calling  of  defendant  and  forfeiture 
of  his  recognizance  can  be  performed  in  term  time  only.'^ 

§  5.  Enforcement  of  bond  or  recognizance.^^ — Eecovery  on  a  bail  bond  is 
not  prevented  by  the  omisssion  of  the  clerk  to  record  the  forfeiture  on  the  day  it 
is  adjudged.*"  A  suit  to  recover  on  a  forfeited  bond  must  be  brought  in  the  quar- 
ter sessions  court  and  an  affidavit  of  defense  may  be  required,*^  and  a  statement 
containing  an  exact  copy  of  the  recognizance  and  a  reference  to  the  place  where 
the  record  of  forfeiture  may  be  found,  as  "the  office  of  the  clerk  of  the  said 
court,"  is  a  sufficient  reference  to  the  records  sued  on.*^  In  an  action  on  the 
bond,  the  action  of  the  circuit  court  in  the  taking  of  a  recognizance  will  be  prje- 
sumed  regular  and  it  will  be  presumed  that  the  instrument  is  valid.*^  Where  no 
alias  writ  of  scire  facias  was  issued  as  to  the  principal  on  a  forfeited  recognizance. 
and  he  was  not  found,  and  the  court  did  not  dismiss  as  against  him,  it  may  pro- 
ceed to  judgment  against  sureties  who  have  been  served  and  have  answered.*^ 
Execution  on  scire  facias  may  be  ordered  against  the  defaulting  defendants  in 
a  joint  and  several  recognizance  at  one  time,  and  against  the  defendant  who  goes 
to  trial  at  another  time,  and  the  recognizance  of  record  and  judgment  of  forfeiture 
are  competent  and  sufficient  evidence  under  the  appropriate  averments  in  scire 
facias  to  authorize  judgment  of  execution.*'  On  appeal  from  a  suit  on  a  forfeited 
bond,  the  court  may  consider  an  indorsement  on  the  bond  in  the  record  which 
shows  the  date  of  forfeiture.*® 

§  6.  Remission  of  forfeiture  and  return  of  deposit  in  lieu  of  bail. — On  dis- 
charge, all  money  deposited  by  the  accused  in  lieu  of  bail  must  be  paid  to  defend- 
ant and  not  to  one  who  furnished  it.*^  Where  on  affirmance  of  a  judgment  against 
one  for  wife  abandonment  requiring  him  to  pay  a  certain  amount  weekly  for  her 
support,  he  surrenders  and  moves  that  the  money  deposited  with  the  city  chamber- 
lain instead  of  a  bond  be  returned  to  him,  he  will  be  discharged,  but  the  amount 
will  be  retained  for  the  wife's  support  and  the  costs  charged  against  him.*®     One 


34.  state  V.  Eyermann   (Mo.)  72  S.  W.  539. 

35.  It  Is  to  be  presumed  that  the  recog- 
nizance was  before  the  court  when  the  ad- 
indication  was  made — Commonwealth  v. 
Meeser,  19  Pa.  Super.  Ct.  1. 

36.  Under  Burns'  Rev.  St.  1901,  §  1443— 
State  V.   Hindman    (Ind.)    65   N.   E.    911. 

37.  State  v.  Hindman    (Ind.)   65  N.  E.   911. 

38.  Under  Burns'  Rev.  St.  1901,  §§  1790, 
1791,  and  Rev.  St.  1881.  §§  147,  148  (Horner's 
Rev.  St.  1901,  §§  1721,  1722) — State  v.  Hind- 
man   (Ind.)    65   N.   E.    911. 

39>  Form  of  judgment  after  default  in 
performance  of  the  conditions  of  a  recog- 
nizance; it  need  not  be  a  money  Judgment — 
Burrall  v.  People,  103  111.  App.  81.  Suffl- 
fiency  of  scire  facias  on  a  recognizance  un- 
der Rev.  St.  1899.  §§  2543,  2549 — State  V.  Abel, 
170  Mo.  59. 


40.  The  omission  may  be  cured  by  amend- 
ment— Commonwealth  v.  Meeser,  19  Pa. 
Super.   Ct.    1. 

41.  Commonwealth  v.  Meeser,  19  Pa. 
Super.    Ct.    1. 

42.  Commonwealth  v.  Meeser,  19  Pa. 
Super.   Ct.   1. 

43.  State  v.  Eyermann  (Mo.)   72  S.  W.  539. 

44.  Under  Rev.  St.  §§  2800,  2556 — State  v. 
Abel,    170    Mo.    59. 

45.  The  procedure  on  scire  facias  in  such 
case  was  not  changed  by  Cr.  Code.  div.  3, 
§  17 — Burrall  v.  People,   103  HI.  App.   81. 

46.  Commonwealth  v.  Meeser,  19  Pa. 
Super.  Ct.   1. 

47.  For  the  purpose  of  the  proceeding 
the  money  belonged  to  defendant  and  could 
not  be  subjected  to  the  claim  of  his  creditor 
PeoDle  V.  Gould   (N.  Y.)   38  Misc.  Rep.   505. 


288 


BAILMENT. 


§1 


convicted  in  a  city  police  court,  governed  by  a  charter  providing  that  certiorari 
shall  not  be  allowed  on  conviction  for  a  violation  of  a  city  ordinance  until  the 
fine  and  all  the  costs  are  deposited  in  the  city  treasury,  is  entitled  to  have  his 
money  returned,  if  final  decision  on  certiorari  is  in  his  favor.*"  Defendant  can- 
not sue  to  recover  money  deposited  in  lieu  of  bail  immediately  after  deposit  be- 
cause the  conviction  was  not  void  but  merely  erroneous.'*"  Interest  cannot  be 
recovered  on  the  deposit  on  appeal  from  a  conviction  in  a  police  court  for  viola- 
tion of  a  city  ordinance  until  after  decision  in  the  case  and  demand  by  defendant." 

BAILMENT,  i 

§  1.  The  contract  of  bailment. — The  distinction  between  a  bailment  and  a 
sale  lies  in  the  obligation  to  restore  the  specific  article.^  A  seller  may  before  de- 
livery be  regarded  as  a  depository  for  hire,^  but  a  purchaser  to  whom  a  machine 
was  shipped  to  be  set  up  in  running  order,  or  his  administrator,  is  not  a  bailee 
entitled  to  a  lien  on  the  machine  for  freight  and  expenses.*  An  innocent  party  to 
whom  goods  are  delivered  as  part  of  a  fraudulent  scheme  is  not  a  bailee  for  the 
true  owner.'  The  owner  of  a  bath  house  is  a  bailee  for  hire  of  valuables  deposited 
in  the  office  at  his  direction.'  One  remaining  in  possession  of  a  chattel  after  the 
expiration  of  a  contract  for  its  use  is  not  a  tenant  from  month  to  month.''  If, 
after  a  bill  of  sale  of  crops  to  a  creditor,  the  seller  agrees  to  protect  the  crops 
and  place  them  in  a  marketable  condition  subject  to  the  order,  the  seller  is'  a  bailee 
of  the  buyer.* 

§  2.  Rights  and  liatilities  between  bailor  and  bailee.^ — The  bailee  of  a  horse 
for  treatment  is  not  liable  for  conversion  where  it  appears  that  it  was  stolen  with- 
out negligence.^"  One  agreeing  to  take  care  of  teams,  who  allows  articles  to  be 
left  in  the  office  of  his  stable,  is  liable  for  their  unexplained  loss.^^  The  burden 
is  on  the  bailee  to  show  that  a  loss  or  injury  to  property  in  his  exclusive  custody 
was  not  occasioned  by  his  negligence.^^     Where  goods  delivered  to  be  made  up 


48.  People  V.  Burke  (N.  T.)  38  Misc.  Rep. 
568. 

49.  The  deposit  Is  in  lieu  of  a  bond — 
Mayor,  etc.,  of  Savannah  v.  Kassell,  115  Ga, 
810. 

50.  Mayor,  etc.,  of  Savannah  v.  Kassell, 
116    Ga.    310. 

61.  Mayor,  etc.,  of  Savannah  v.  Kassell, 
115    Ga.    310. 

1.  Other  titles  specially  treating  of  spe- 
cial kinds  of  bailments  should  be  consulted. 
See  Animals  (Agistment),  Banking  and  Fi- 
nance, Factors.  Pledge. 

2.  Fleet  V.  Hertz,  98  111.  App.  564.  A  re- 
ceipt for  wheat  "to  be  paid  for  at  market 
price  on  demand"  may  be  construed  to  evi- 
dence a  sale — Hagey  v.  Schroeder  (Ind.  App.) 
65   N.   E.   598. 

3.  Rev.  St.  §  3252  makes  the  provision 
that  the  seller  is  bound  to  keep  the  prop- 
erty with  ordinary  care  and  is  responsible 
for  loss  by  negligence — Strong  v.  Morgan 
(Idaho)    67    Pac.    1123. 

4.  James  Smith  Woolen  Mach.  Co.  v.  Hold- 
en,   73  Vt.   396. 

5.  Swindlers  ordered  goods  of  the  plain- 
tiff and  had  them  sent  to  the  defendants 
who  were  in  good  standing.  Then  one  of 
them  telephoned  defendants  in  plaintiffs 
name  stating  that  the  goods  had  been  de- 
livered by  mistake  and  should  be  delivered 


to  a  person  who  would  call  for  them,  and 
defendants  delivered  the  goods  to  a  stran- 
ger presenting  an  order  purporting  to  be 
signed  by  plaintiff — Krumsky  v.  Loeser  (N. 
Y.)   37  Misc.  Rep.  504. 

6.  Sulpho  Saline  Bath  Co.  v.  Allen  (Neb.) 
92  N.  W.   354. 

7.  Lighting  apparatus — Bruckman  v.  Har- 
gadine-McKittrick  Dry  Goods  Co.,  91  Mo. 
App.  454. 

8.  Trover  will  not  lie  without  demand  In 
the  absence  of  evidence  of  actual  conversion 
— Baston  v.  Rabun,   115  Ga.   378,  41   S.   E.   568. 

9.  i^lendingr  and  evidence  In  action  for 
damages.  Petition  is  sufficient  which  states 
a  contract  to  restore  an  animal  on  de- 
mand, alleges  demand  and  refusal  to  re- 
turn, and  payment  of  charges  and  demands 
judgment  for  the  value  of  the  animal — 
Dixon  v.  McDonnell,  92  Mo.  App.  479.  In 
trover  value  stated  by  bailor  of  a  wagon 
left  for  repair  is  the  proper  amount  of  re- 
covery less  the  price  of  the  repairs,  where 
there  Is  no  other  e^'idence — Bain  v.  Ganzer 
(N.  Y.)   74  App.  Div.  621. 

10.  Dailey   v.    Black.    92   Mo.   App.    228. 

11.  McKillop  V.  Reich  (N.  Y.)  76  App.  Div. 
334. 

IS.  Hislop  V.  Ordner  (Tex.  Civ.  App.)  67 
S.  TV.  337;  Sulpho  Saline  Bath  Co.  v.  Allen 
(Neb.)    92   N.   W.   354. 


S  1 


BANKING  AND  FINANCE. 


289 


are  stolen  from  a  'tailor  laefore  their  return,  he  cannot  recover  for  work  done  as 
against  the  manufacturer's  counterclaim  for  value,  on  mere  evidence  that  he  had 
nothing  to  do  with  the  theft.^*  Where  the  packages  are  returned  intact  by  the 
bailee,  the  burden  shifts.^*  The  bailee  may  by  contract  exempt  himself  from  lia- 
bility for  fire.'-^  Where  the  bailee  agrees  to  repay  the  value  of  property  dam- 
aged or  destroyed,  he  is  liable,  though  the  loss  does  not  result  from  his  negli- 
gence/* A  bailee  may  be  liable  for  a  conversion,  where  he  makes  a  wrongful  use 
of  the  property.^^  A  bailee  of  a  wagon  for  repair,  who  dismantles  it  and  loaus 
its  wheels,  is  liable  for  its  value  on  refusal  of  a  demand  for  the  return  of  the 
property  in  the  condition  received.^' 

Where  a  check  is  left  with  a  bailee,  he  is  not  authorized  to  negotiate  it  and 
appropriate  the  proceeds  by  reason  of  the  fact  that  he  has  claims  against  the 
payees.'®  Where  a  landlord  allowing  goods  to  be  stored  on  his  premises  re- 
serves no  right  to  retain  them  at  the  end  of  the  term  or  to  demand  payment  on 
removal,  he  has  no  lien  for  unpaid  storage.^"  A  bailee  cannot  hold  adversely  to 
the  bailor  until  the  bailor  has  notice  of  the  inconsistent  claim  of  title.'^^ 

§  3.  Rights  and  liabilities  of  third  persons. — Property  in  the  hands  of  the 
bailee  is  subject  to  garnishment  for  the  bailor's  debts,-^  but  is  not  liable  for  the 
bailee's  debts.^^  A  bailor  of  property  for  sale  has  a  right  of  possession  enabling 
him  to  maintain  replevin  against  a  wrongful  purchaser.^* 

BANKING   AND   FINANCE. 


5  1.  The  OeeupatioBi  in  General,  Regula- 
tion, Supervision,   Control. 

§  2.     Associated   or    Incorporated    Bankers. 

— Corporate  Existence;  Stock;  Dividends; 
Powers;  Personal  Liability  of  Officers;  Rep- 
resentation of  Bank  by  Officers;  Insolvency; 
Winding-  up  and  Reorganization;  Enforce- 
ment  of   Stockholder's   Individual    Liability. 

§  3.  National  Banks. — Officers  and  Exam- 
iners; Pow^ers;  Violations  of  Banking  Act; 
Stock;  Receivership;  Stockholder's  Liability; 
Control  of  State  Courts;  Usury. 

§  4.  Savings  Banks. — Powers;  Liabilities 
of  Directors;   Rules;  Deposits;  Pass  Books. 

§  5.  Loan,  Investment  and  Trust  Compan- 
ies. 

§  6.     Deposit       and       Repayment       thereof, 


Checks,  Drafts,  Certifications,  Receipts,  Cred- 
its.— Relation  of  Bank  and  Depositor;  Evi- 
dence of  Deposit;  Certificates;  Cashier's 
Checks:  Repayment;  Forged  Checks;  Un- 
authorized Checks;  Application  of  Deposit  to 
Debt  Due  Bank;  Deposits  after  Insolvency; 
Special  Deposits;  Slander  of  Credit;  Actions 
for  Deposits;  Notes  Payable  at  Bank;  Cer- 
tifications. 

§  7.  Loans  and  Discounts. — Generally; 
Discounts   against   Bills   of   Lading. 

§  8.  Collections. — Generally;  Preservation 
of  Rights  of  Parties;  Drafts  with  Bill  of 
Lading  Attached;   Actions. 

§  9.  Offenses  Against  Banking  Laws: 
Penalties. — Receipt  of  Deposits  When  In- 
solvent;   Evidence;    Instructions. 


§  1.     The  occupation  in  general;  regulation,  supervision,  control. — In  deter- 
mining whether  a  corporation  is  a  banking  institution,  the  court  will  consider 


13.  Rothoser  v.  Cosel  (N.  T.)  39  Misc. 
Rep.    337. 

14.  As  where  stored  liquor  is  lost  by 
leakage — Taussig  v.  Bode  &  Haslett.  134  Cal. 
260.  66  Pac.  259.  54  L.  R.  A.  774.  Sufficiency 
of  evidence  to  show  lack  of  proper  care  in 
permitting  a  horse  to  be  overdriven — Pelton 
V.  Nichols,  180  Mass.  245.  Evidence  held  in- 
sufficient to  show  that  death  of  a  horse  was 
caused  by  bailee's  negligence — Hislop  v. 
Ordner  (Tex.  Civ.  App.)  67  S.  W.  337.  Evi- 
dence held  insufficient  to  show  neglect  In 
case  of  horse  under  contract  of  agistment — 
Dixon  v.  McDonnell,  92  Mo.  App.   479. 

15.  A  provision  that  a  miller  shall  not  be 
responsible  for  a  loss  of  a  deposit  of  wheat 
covers  a  loss  of  flour  In  which  form  the 
deposit  was  to  be  returned — "Wells  v.  Porter, 
169   Mo.    252. 

16.  Where  leased  fire  extinguishers  were 
burned — Rapid  Safety  Fire  Extinguisher  Co. 
V.  Hay-Budden  Mfg.  Co.  (N.  Y.)  37  Misc. 
Rep.  556. 

Cur.  Law — 19. 


Bain    v.   Ganzer    (N.    T.)    74   App.   Dlv. 
Kelner  v.  Folsom,  113  N.  Y.  State  Rep. 


17.  As  where  wheat  left  with  a  miller  to 
be  returned  or  purchased  when  the  owner 
is  ready  to  sell  is  ground  into  flour  by  the 
miller  without  the  owner's  consent — Mayer 
V.  Springer,  192  111.  270. 

18. 
621. 

19. 
1099. 

20.  As  where  after  the  expiration  of  the 
lease,  the  tenant  is  allowed  to  leave  his 
goods  for  a  certain  sum  payable  monthly 
— Webster  v.  Keck    (Neb.)    89  N.   W.    410. 

21.  Rice   V.   Connelly,    71    N.   H.    382. 

22.  Construing  Pub.  St.  c.  245,  §  19.  and 
holding  liable  one  having  in  his  possession 
money  taken  from  an  intoxicated  person  for 
safe  keeping — Canning  v.  Knights,  71  N  H 
404. 

23.  Horses  In  the  hands  of  a  trainer  can- 
not be  attached  by  his  creditors  though  en- 
tered In  the  races  In  his  name— Anderson  v. 
Heile,  23  Ky.  Law  Rep.  1115,  64  S.  W.  849. 


290 


BANKING  AND  FINANCE. 


§   2 


the  articles  of  incorporation,  the  character  of  its  business  and  any  not  unwar- 
ranted construction  which  the  officers  have  placed  on  its  charter  powers.^ 

State  aid. — A  bank  is  not  liable  on  state  bonds  issued  in  its  aid,-  but  may  pur- 
chase them  as  an  investment/  and  does  not  thereby  extinguish  thein.* 

Statutes  against  the  issuance  of  circulating  mediums  do  not  prevent  issuance 
of  checks  to  employees  payable  in  merchandise  at  a  company's  store.^ 

§  2.  Associated  or  incorporated  banhers;  corporate  existence  generally.^ — 
Constitutional  provisions  relating  to  the  formation  of  corporations,  include  bank- 
ing corporations  though  there  are  provisions  of  the  constitution  relating  specially 
thereto/  By-laws  remain  operative  after  expiration  of  the  original  charter  where  it 
is  renewed  by  a  direction  that  the  period  of  its  existence  shall  be  extended  as 
fully  as  if  provided  in  the  original  charter.* 

Stock  subscriptions  must  be  paid  in  cash  where  there  is  no  statutory  provi- 
sion otherwise.®  If  choses  in  action  are  accepted,  the  directors  are  bound  to  the 
exercise  of  ordinary  care  in  ascertaining  that  they  are  of  the  value  for  which 
they  are  taken."  Creditors  may  enforce  payment  of  the  par  value  of  stock 
though  the  bank  has  no  cause  of  action,  and  without  showing  what  has  been 
done  with  stock  notes,"  and  directors  of  an  adjudged  insolvent  bank  may  make 
assessments  without  leave  of  court.^^  Certificates  of  deposits  issued  shareholders 
on  reduction  of  capital  stock  are  without  consideration  where  the  liabilities  ex- 
ceed assets.^^  There  can  be  no  recovery  thereon  against  the  bank's  receiver,"  and 
payments  thereon  may  be  recovered  by  him.^^ 

Dividends  paid  a  stockholder  in  an  insolvent  bank  in  disobedience  of  the 
banking  act  may  be  recovered  by  the  corporation,  and  on  its  failure  to  do  so,  a 


3M.  A  bailee  of  law  books  has  not  a  right 
of  possession  against  his  principal  so  as  to 
defeat  such  an  action — Lucas  v.  Rader,  29 
Ind.   App.    287 

1.  A  corporation  which  receives  money  on 
deposit,  pays  it  on  checks,  buys  and  sells 
commercial  paper  and  forwards  exchange 
under  articles  of  incorporation  stating  the 
general  nature  of  the  business  to  be  to  ne- 
gotiate loans,  purchase  and  sell  notes,  stocks 
and  bonds,  borrow  money,  receive  money 
on  deposft  and  execute  drafts  is  a  bank 
and  its  stockholders  are  liable  for  its  debts. 
(Const,  art.  lib.  §  7) — Hamilton  Nat.  Bank 
V.  American  L.  &  T.  Co.   (Neb.)   92  N.  W.  Id9. 

2.  The  banking  department  of  the  Citi- 
zens' Bank  of  Louisiana  created  under  the 
act  of  1853  is  not  liable  for  the  bonded  debt 
of  the  state  incurred  in  1836  in  aid  of  the 
bank — Hope  v.  Board  of  Liquidation,  108  La. 
315. 

3.  Banking  department  of  the  Citizens' 
Bank  of  Louisiana  created  under  acts  1853, 
No.  246  has  such  power — Hope  v.  Board  of 
Liquidation.   108    La.    315. 

4.  The  Citizens'  Bank  of  Louisiana  is  to 
the  same  extent  as  other  persons  entitled  to 
benefits  of  a  funding  scheme  under  act  Jan. 
24.  1874.  for  such  bonds  held  by  it — Hope  v. 
Board   of  Liquidation,   108   La.   315. 

5.  Construing  Sand.  &  H.  Dig.,  c.  18 — 
Martin-Alexander  Lumber  Co.  v.  Johnson,  70 
Ark.    215. 

6.  A  new  corporation  is  created  by  Acts 
1853.  No.  246,  for  the  reorganization  of  the 
Citizens'  Bank  of  Louisiana  after  the  adop- 
tion under  such  act  of  the  articles  of  asso- 


ciation   by   the   creditors — Hope   v.    Board    of 
Liquidation,    108   La.    315. 

7.  Construing  Const.  3846,  art.  8.  §§  1-3, 
4.   7 — Barnes  v.  Arnold.    169   N.   T.   611. 

8.  So  held  in  a  suit  by  the  receiver  of  a 
bank  against  its  directors — Campbell  v.  Wat- 
son,   50    N.    J.    Eq.    396. 

9.  Payment  in  notes,  judgments,  etc.,  can- 
not be  permitted — Coddington  v.  Canaday. 
157   Ind.    243. 

10.  Coddington   v.    Canaday,    157   Ind.    243. 

11.  Stock  certificates  were  assessed  by 
the  bank  at  less  than  par.  by  agreement  and 
the  bank  accepted  the  shareholder's  propor- 
tion of  fictitious  profits  in  discharge  of  his 
liability  to  pay  money  for  the  stock — Gager 
v.  Paul,  111  Wis.  638. 

12.  Banking  Act  of  1895,  St.  1895,  p.  175 — 
Union  Sav.  Bank  v.  Dunlap,  135  Cal.  628, 
67  Pac.   1084. 

13.  Where  the  capital  stock  and  Indebt- 
edness of  a  bank  are  considerably  in  ex- 
cess of  its  assets,  certificates  of  deposit  is- 
sued to  stockholders  to  the  amount  of  one- 
half  the  original  capital  on  reduction  of 
the  capital  stock  one-half,  will  be  regarded 
as  without  consideration  as  against  the  re- 
ceiver and  creditors — State  v.  Bank  of  Ogal- 
lala   (Neb.)    90  N.  W.  961. 

14.  A  bank  holding  stock  as  collateral 
which  surrenders  it  under  such  agreement 
is  In  the  same  position  as  an  ordinary  stock- 
holder— State  V.  Bank  of  Ogallala  (Neb.)  90 
N.   W.    961. 

15.  Action  may  be  brought  at  any  time 
within  four  years — State  v.  Bank  of  Ogallala 
(Neb.)    90    N.    W.    961. 


§  2 


INCORPORATED  BANKERS. 


291 


creditor  may  proceed  in  equity.^"  Banking  corporations  are  subject  to  the  joint 
and  several  liability  imposed  on  directors  of  corporations  in  general,  who  pay 
dividends  before  full  payment  of  the  capital  stock,  when  the  corporation  is 
insolvent  or  in  danger  of  insolvency,  without  reason  to  believe  that  there  were 
profits  sufficient  to  pay  such  dividends  without  diminishing  the  capital." 

Transfer  of  stock. — If  a  bank  has  notice  of  an  assignment  of  capital  stock, 
it  is  not  entitled  to  deal  with  the  former  holder  as  a  stockholder,  though  there 
has  been  no  effort  to  secure  a  formal  transfer  of  stock  on  the  corporate  books. 
Otherwise  in  the  absence  of  notice.^*  The  bank's  charter  may  validly  provide  that 
shareholders  who  have  failed  to  respond  to  calls  or  who  are  indebted  to  the  bank 
cannot  transfer  stock  without  permission.^^ 

Lien  on  stock. — A  bank  may  have  a  superior  lien  on  stock  to  the  extent  of 
an  authorized  loan,  though  it  has  violated  its  charter  by  making  a  loan  greater 
in  amount  than  authorized  to  the  stockholder.^*'  Though  a  loan  to  a  stockholder 
is  greater  than  authorized  by  its  charter,  an  assignee  of  the  stock  cannot  insist  that 
it  be  transferred  to  him  until  all  the  indebtedness  of  the  assignor  contracted  prior  to 
notice  of  the  assignment  is  paid,  in  case  he  is  not  willing  to  pay  such  an  amount  as 
will  discharge  the  lien  on  the  stock  given  the  bank  by  its  charter. ^^  The  as- 
signee cannot  insist  that  payment  made  by  the  assignor  should  be  applied  other- 
wise than  as  directed  by  him,  and  on  an  action  to  determine  whether  the  indebted- 
ness to  the  bank  has  been  fully  paid,  authorizing  the  assignee  to  demand  a  trans- 
fer of  the  stock  on  the  books  of  the  bank,  the  only  question  involved  is  whether 
payments  by  the  assignor  have  been  applied  as  directed,  or  if  no  direction  has 
been  made,  applied  as  required  by  law." 

General  powers. — A  corporation  exercising  banking  powers  may  guaranty  bonds 
of  a  railroad  company  in  which  it  owns  the  majority  of  the  stock,-'  may  issue 
certificates  of  deposit  payable  at  a  day  fixed,  with  interest,^*  or  may  collect  and  remit 
money  payable  under  a  lease.^^  The  maker  of  a  note  cannot  defend  against  a 
banking  corporation  thereon,  on  the  ground  that  the  bank  had  no  authority  to 
purchase  it.^' 

Personal  liahility  of  directors  and  officers. — Bank  directors  are  liable  for  losses 
and  waste  of  money  and  property  occurring  through  their  gross  inattention  to  the 
business  of  the  bank  or  their  willful  violation  of  their  duties,^'  as  where  they  have 
allowed  over-drafts  by  a  cashier,^*  or  failed  to  discover  abstractions  extending  over 
several  years  which  could  have  been  discovered  by  a  mere  adjustment  of  accounts. ^^ 
They  are  not  excused  by  reliance  upon  statements  of  the  officers  and  occasional 


16.  Rev.  St.  1898.  §  2024,  subsec.  40 — Gager 
V.    Paul,    111   "Wis.    638. 

17.  Construing-  R.  S.  1898,  §  1765 — Williams 
V.   Brewster    (Wis.)    93  N.  W.   479. 

18.  Charter  provided  that  an  assignment 
of  its  stock  should  not  be  valid  against  it 
unless  a  formal  transfer  was  made  on  its 
books — People's  Bank  of  Talbotton  v.  Ex- 
change Bank  of  Macon  (Ga.)   43  S.  E.  269. 

19.  Lyman  v.  State  Bank  of  Randolph,  114 
N.  T.  St.  Rep.  901. 

20.  Charter  provisions  limiting  the 
amount  of  loans  to  any  one  person  to  one- 
tenth  of  the  paid  up  capital  stock  and  also 
that  the  shares  of  any  stockholder  shall  be 
bound  to  the  bank  for  dues  or  indebtedness 
of  the  stockholder  to  the  bank  and  confer- 
ring a  lien  thereon  superior  to  all  other  liens 
• — People's  Bank  of  Talbotton  v.  Exchange 
Bank   of   Macon    (Ga.)    43    S.    B.    269. 


21.  People's  Bank  of  Talbotton  v.  Ex- 
change Bank   of  Macon    (Ga.)    43  S.   E.   269. 

22.  People's  Bank  of  Talbotton  v.  Ex- 
change Bank  of  Macon   (Ga.)   43  S.  E.  269. 

23.  Central  R.  &  B.  Co.  v.  Farmers'  L. 
&  T.  Co.,  114  Fed.  263.  52  C.  C.  A.  149. 

24.  Though  Civil  Code.  §  576.  expressly 
vested  such  power  in  savings  banks — Abbott 
v.  Jack.  136  Cal.  510.  69  Pac.   257. 

25.  Knapp    v.    Saunders,    15    S.    D.    464. 

26.  Black   V.   First   Nat.   Bank.   96   Md.   399. 

27.  Construing  Burns'  Rev.  St.  1894,  §§ 
2922-2925,  2927.  2929,  2934 — Coddington  v. 
Canaday.  157  Ind.   243. 

2S.  Evidence  held  sufficient  to  show  neg- 
ligence on  the  part  of  directors  rendering 
them  liable  for  moneys  abstracted  by  th« 
cashier  and  overdrafts  permitted  after  no- 
tice from  the  bank  examiner — Campbell  v. 
Watson,    62    N.   J.    Eq.    396. 

29.     Campbell   v.   Watson,   ff2  N.  J.  Eq.   396. 


292 


BANKING  AND  FINANCE. 


§  2 


examination  by  the  state  officials,'"  especially  where  they  have  failed  to  appoint 
a  committee  to  examine  the  bank's  ait'airs  every  three  months  as  required  by  a 
by-law/^  though  ignorant  of  the  by-law,'^  or  though  it  has  been  long  disregard- 
ed.^'  Officers  and  directors  of  a  bank  are  not  responsible  for  depreciation  of  the 
value  of  its  stock  due  to  their  errors  in  judgment  and  not  to  negligence.  Direct- 
ors who  by  reason  of  absence  from  the  state  or  sickness  failed  to  have  knowledge 
of  a  hazardous  loan  made  by  the  vice-president  and  manager  and  who  make  all 
reasonable  efforts  to  collect  the  loan  after  discovering  it  are  not  liable  to  stockhold* 
ers  for  depreciation  in  the  stock.'*  A  loan  may  be  made  by  the  manager  of  a 
bank  to  an  insolvent  corporation  under  such  circumstances  that  the  cashier  who 
enters  the  amount  of  the  loan  to  the  credit  of  the  corporation  with  knowledge 
of  its  insolvency  may  not  be  negligent  so  as  to  render  himself  liable  to  the  stock- 
holders for  depreciation  in  the  value  of  the  stock.'*  Where  a  bank  director  has 
had  knowledge  of  insolvency,  he  may  be  personally  liable  to  subsequent  depositors. 
To  relieve  himself,  he  must  warn  individual  depositors  of  insolvency  or  proceed 
through  the  board  of  directors,  superintendent  of  the  banking  department,  or 
cashier  to  discontinue  the  taking  of  deposits.'®  His  knowledge  is  established  by 
evidence  of  an  inspection  of  books  at  a  director's  meeting  showing  the  surplus 
to  be  gone  and  the  capital  to  be  impaired.'^  Where  a  prima  facie  case  of  fraud 
is  made,  the  burden  of  explaining  is  on  the  director,'* 

An  action  against  ivrong  doing  directors  which  would  ordinarily  be  brought  by 
the  corporation  may  be  brought  by  the  stockholders  affected,  where  the  present 
directors  are  the  ones  charged  with  the  misconduct.'®  A  shareholder  whose  stock 
has  been  sold  on  failure  to  pay  assessments  necessitated  by  negligent  loans  of  the 
directors  may  maintain  an  action  in  behalf  of  himself  and  others  in  the  same 
position,  to  compel  the  directors  to  repay  him  the  value  of  his  stock  as  it  was 
before  their  acts  of  negligence.  Such  action  may  be  brought  within  ten  years.*^ 
A  bank^s  creditors  after  its  insolvency,*^  or  a  receiver  given  power  to  take  charge 
of  a  bank's  property  and  prosecute  all  actions  necessary  in  the  discharge  of  hi^ 
duties,  may  sue  the  directors  for  negligence,*^  and  the  receiver  may  assert  on 
behalf  of  creditors  claims  which  the  stockholders  could  not.*'  Action  may  be 
brought  before  the  total  losses  have  been  determined  and  the  limit  of  the  director';? 
liability  fixed.** 

Poivers  of  officers  and  right  to  represent  hanTc. — One  who  has  taken  advantage 
of  the  acts  of  bank  officers  is  estopped  to  deny  the  authority  to  make  them,*''  and  the 


so.     Campbell  v.  Watson.   62  N.  J.  Eq.   396. 

31.  Campbell  v.  Watson,  62  N.  J.  Eq.   396. 

32,  Campbell  v.  Watson,   62  N.  J.  Eq.   396. 
S3.     Campbell  v.  Watson.  62  N.  J.  Eq.   396. 

34.  Warren  v.  Tloblson  (Utah)  70  Pac.  989. 

35.  A  cashier's  contract  of  employment 
provided  that  he  should  not  be  charged  with 
the  responsibility  of  making  loans  and  se- 
lecting securities.  The  manager  of  a  bank 
without  knowledge  of  the  cashier  negotiat- 
ed a  loan  to  the  corporation  and  took  Its 
note  indorsed  by  a  solvent  firm — Warren  v. 
Robison   (Utah)   70  Pac.  989. 

36.  It  is  not  a  defense  that  the  director 
has  expressed  an  opinion  that  deposits  should 
not  be  received  and  there  has  been  an  ar- 
rangement which  was  not  carried  out  for 
their  receipt  under  proper  restrictions — Cas- 
sldy  V.  Uhlmann,  170  N.  Y.  505. 

37.  It  may  be  showr;  as  part  of  the  res 
gestae  that  after  Insolvency  cheeks  were 
drawn  at  a  director's  meeting  in  favor  of 
certain  persons  with  whom  the  bank  was  in 


close  relations,  for  more  than  the  visible 
assets  of  the  bank  and  were  paid  through 
the  clearing  house — Cassidy  v.  Uhlmann,  170 
N.    Y.    505. 

38.     Cassidy  v.  Uhlmann,  170  N.  Y.  505. 

3!).  So  held  In  an  action  by  share  holders 
to  recover  damages  resulting  from  a  sale  of 
stock  on  non-payment  of  an  assessment, 
necessitated  by  negligent  loans  of  the  di- 
rectors— Hanns.  v.  People's  Nat.  Bank,  35 
Misc.    Rep.    (N.    Y.)    617. 

40.  Hanna  v.  People's  Nat.  Bank,  35  Misc. 
Rep.    (N.    Y.)    517. 

41.  Campbell  v.  Watson.   62  N.  J.  Eq.  39S. 
43.     Construing   Burns'    Supp.    1S97,   §   2938, 

Burns'  Rev.  St.  1901,  §  1242 — Coddington  v. 
Canaday,   157  Ind.   243. 

43.  As  where  the  stockholders  have  au- 
thorized the  directors  to  accept  doubtful 
judgments  and  notes  in  payment  of  subscrip- 
tions— Coddington   v.   Canaday,    157   Ind.    2  43. 

44.  Campbell  v.  Watson,   62  N.  J.  Eq.   396. 

45.  A    borrower    of    money    cannot    deny 


g  2 


POWERS   OF   OFFICERS. 


293 


bank  may  be  estopped  to  deny  the  legitimacy  of  acts  which  it  has  permitted  its  presi- 
dent to  perform.*®  Officers  other  than  the  cashier  may  have  authority  to  receive 
deposits.*^  Such  authority  must  be  determined  by  the  actual  facts  and  not  the 
opinions  of  other  officers.*^  The  president  of  a  bank  may  contract  to  loan  money 
for  the  purchase  of  specific  property,  and  may  testify  thereto.*®  He  cannot  bind 
the  bank  by  false  representations,  of  which  it  has  not  actual  knowledge  when  act- 
ing for  himself,^"  or  by  a  statement  on  an  application  for  a  bond  by  its  cashier 
from  a  surety  company .''^  Cashiers  are  in  the  same  status  as  to  agency  as  other 
persons  in  a  fiduciary  relation.^^  A  cashier  may  cancel  an  indemnifying  bond 
and  accept  a  new  one.'''  He  has  power  to  sign  certificates  of  deposit  from  power 
to  sign  all  papers  connected  with  the  business.^*  Evidence  of  authority  to  'issue 
certificates  of  deposit.^^  A  bank  may  be  liable  for  the  acts  of  its  cashier  and 
general  manager  in  undertaking  to  make  investments.^*  In  an  action  on  a  note, 
the  cashier  need  not  make  express  proof  of  his  authority.'^''  The  teller  has  no  im- 
plied authority  to  certify  checks  in  the  absence  of  a  custom  to  certify  and  subse- 
quent payment  of  certified  checks  by  the  bank.°* 

Unauthorized  acts. — Acts  of  an  oflBcer  outside  the  usual  scope  of  his  authority 
to  which  the  bank  is  not  a  party  and  of  which  it  has  no  notice  are  not  binding 
on  it.^®  They  must  be  acts  within  the  reasonable  or  apparent  scope  of  his  authority 
or  which  are  done  with  the  knowledge  and  approval  of  the  directors  or  are  similar 
to  those  which  have  been  so  done  or  which  have  been  afterwards  ratified  by  the 
banFs  acceptance  of  benefits  thereunder,®"  but  a  bank  to  escape  liability  for  fraud 
of  its  officers  cannot  deny  their  authority  to  represent  it  in  the  usual  course  of 


authority  of  president  to  make  the  loan  or 
dictate  Its  terms — Roe  v.  Bank  of  Versailles, 
167   Mo.    406. 

4C.  Arrangement  of  a  loan  of  money  for 
the  purchase  of  stock — Roe  v.  Bank  of  Ver- 
sailles,  167   Mo.   406. 

47.  As  where  an  officer  of  a  bank  who 
generally  attended  the  loan  department  and 
who  had  authority  to  sign  and  Indorse 
checks  and  certificates  of  deposit  In  the  ab- 
sence of  the  cashier  received  a  check  at  the 
ordinary  window  and  turned  It  over  to  the 
teller — Burnell  v.  San  Francisco  Sav.  Union, 
136   Cal.   499,   69  Pac.   144. 

48.  Burnell  v.  San  Francisco  Sav.  Union, 
136   Cal.    499,    69   Pac.    144. 

49.  Roe  v.  Bank  of  Versailles,  167  Mo.  406. 

50.  The  president  with  another  was  sure- 
ty on  a  bond  given  for  the  performance  of 
a  railroad  contract  and  on  the  contractors 
being  about  to  abandon  the  work,  informed 
the  other  surety  that  If  he  would  make  a 
note,  the  president  had  a  contract  with  the 
railroad  company  which  would  protect  them 
and  that  the  .first  money  paid  under  the  con- 
tract should  be  applied  to  the  note,  w^hlch 
was  desired  merely  to  show  the  bank  ex- 
aminer, and  It  was  held  that  the  bank  hav- 
ing advanced  money  on  the  note  could  hold 
the  co-surety  liable  therefor — National  Bank 
of  Cleburne  v.  Carper  (Tex.  Civ.  App.)  67  S. 
W.  188. 

51.  United  States  F.  &  G.  Co.  v.  Mulr 
(C.   C.   A.)    115   Fed.    264. 

52.  Campbell  v.  Manufacturers'  Nat.  Bank, 
67  N.   J.  Law,   301. 

53.  A  surety  on  the  first  bond  pleaded 
that  the  bond  had  been  surrendered  and 
cancelled  and  another  one  taken  and  plain- 


tiff denied  the  authority  of  Its  cashier  In 
such  matters.  The  cashier  was  by  a  by- 
law given  general  charge  of  books,  papers 
and  property  of  the  bank  and  generally  de- 
termined the  rate  of  discount  and  looked 
after  the  securities  and  had  general  charge 
of  the  lending  of  the  money.  The  bond 
was  one  indemnifying  the  bank  against  all 
discount,  etc.,  of  the  paper  of  a  certain  cor- 
poration— German  Am.  Bank  v.  Schwinger, 
75  App.  DIv.   (N.  Y.)    393. 

54.  Abbott  v.  Jack,  136  Cal.  510,  69  Pac. 
257. 

55.  Semi-annual  statements  of  the  bank's 
cashier  and  evidence  of  the  custom  of  the 
bank  In  issuing  certificates  of  deposit  are 
admissible — Abbott  v.  Jack,  136  Cal.  510,  6S 
Pac.  257. 

56.  The  cashier  exhibited  statements  to 
the  depositor  taken  from  the  books  of  the 
bank  which  purported  to  show  that  invest- 
ments were  made  by  the  bank  for  the  de- 
positor— Bobb  v.  Sav.  Bank  of  Louisville, 
23  Ky.  Law  Rep.  817,  64  S.  W.  494. 

57.  Battersbee  v.  Calkins  (Mich.)  8  De- 
troit Leg.  N.  778.  87  N.  W.   760. 

.58.  Muth  V.  St.  Louis  Trust  Co.,  94  Mo. 
App.    94. 

59.  Jones  V.  First  Nat.  Bank  (Neb.)  90 
N.  W.  912.  A  bank  is  not  liable  for  a  draft 
fraudulently  Issued  by  cashier  to  pay  his 
own  debt,  where  it  Is  not  shown  that  there 
is  any  authorization  or  ratification  by  the 
directors  and  the  president  and  directors 
could  not  have  discovered  the  fraud  by  the 
exercise  of  any  care — Campbell  v.  Manu- 
facturers' Nat.  Bank,  67  N.  J.  Law.  301. 

60.  Hill  V.  Bank  of  Seneca,  87  Mo.  App. 
590. 


294 


BANKING  AND  FINANCE. 


§2 


business,'^  so  it  may  be  liable  to  a  third  person  for  a  draft  on  a  correspondent 
signed  by  its  cashier  and  entered  at  less  than  its  face.®^  Eatification  may  result 
from  acceptance  of  benefits/^  and  an  unauthorized  act  cannot  thereafter  be  ques- 
tioned.®* There  can  be  no  authorization  or  ratification  of  unknown  and  concealed 
fraudulent  acts,*^  and  if  a  draft  and  the  entry  on  the  stub  of  the  draft  book  are 
regular  on  their  face,  there  is  no  evidence  of  negligence  in  the  ofiBcers  of  the  bank 
in  failing  to  discover  its  fraudulent  character  from  an  inspection  so  as  to  raise 
.m  implied  ratification.^®  Wliere  the  cashier  of  a  banking  corporation  directs  an- 
other bank  to  apply  the  corporation's  deposit  to  his  own  indebtedness,  a  defense  of 
estoppel  in  an  action  by  the  corporation  to  recover  the  deposit  need  not  be  based 
on  defendant's  ignorance  of  the  cashier's  authority,  there  being  positive  evidence 
that  defendant  knew  nothing  of  the  misappropriation  of  the  money,  and  no  proof 
of  knowledge  of  his  want  of  authority." 

Official  or  individual  capacity. — It  is  to  be  presumed  that  the  acts  of  an  offi- 
cer are  done  officially  rather  than  individually.®'     They  should  be  at  the  usual 
place  of  business  of  the  bank  unless  otherwise  authorized  or  ratified.®^     If  a  cashier 
is  dealt  with  as  an  individual,  it  cannot  afterward  be  claimed  that  it  was  a  bank 
transaction.'^"     There  is  no  presumption  that  a  cashier  has  official  authority  with 
cgard  to  a  transaction  relative  to  his  own  business,^^  and  if  the  act  is  known  to 
be  an  individual  one,  the  burden  is  on  the  other  party  to  show  that  it  was  au- 
thorized by  the  bank  or  ratified.^*     Eepresentations  made  by  a  cashier  for  the  pur- 
pose of  enabling  its  debtor  to  continue  in  business  may  be  regarded  as  for  the  ben- 
efit of  the  bank.'''     A  bank  may  be  liable  in  tort  to  a  person  injured  by  a  false 
statemeni  in  a  certificate  of  deposit,  of  the  source  from  which  a  deposit  arose,  made 
by  the  cashier  in  the  interest  of  the  bank,  though  not  expressly  authorized  by  the 
boardof  directors.''*     A  bank  is  not  responsible  for  representations  of  a  defaulting 
officer  made,  after  the  bank  has  gone  into  the  hands  of  the  comptroller,  for  the 


61.  Acts  of  president  and  cashier  in  col- 
lecting money,  depositing  it  to  the  credit  of 
a  customer  and  paying  checks  against  it — 
Citizens'  Bank  v.  Fromholz  (Neb.)  89  N.  W. 
775. 

62.  Where  a  cashier  has  been  allowed  to 
overdraw  and  make  drafts  for  his  personal 
use  and  has  power  to  sign  drafts  on  a  cor- 
respondent, the  bank  cannot  recover  from 
the  payee  of  a  draft,  the  difference  between 
its    face   and    the    amount   for    which    it    was 

•fraudulently   entered   on   the   bank's   books — 
Campbell    v.    Upton,    171    N.    T.    644. 

63.  Ratification  of  the  surrender  by  a 
cashier  of  a  bond  given  to  indemnify  the 
bank  against  certain  discounts  is  shown  by 
the  fact  that  the  bank  ofBclals  knew  that 
the  discounts  were  in  excess  of  the  amount 
secured  by  the  bond  and  in  endeavoring  to 
recover  for  the  discounts  sued  on  the  sub- 
stituted bond  first — German  Am.  Bank  v. 
Sohwlnger.  75  App.  Div.  (N.  Y.)  393.  See 
as  to  sufficiency  of  evidence  of  ratification 
of  a  contract  by  cashier  for  the  threshing 
of  wheat  on  which  a  bank  held  a  mortgage 
-  Hill  v.  Bank  of  Seneca.  87  Mo.  App.   590. 

64.  Arrangement  for  a  loan  of  money  for 
the  purchase  of  stock — Roe  v.  Bank  of  Ver- 
sailles. 167   Mo.   406. 

65.  Campbell  v.  Manufacturers"  Xat.  Bank. 
67   N.   J.   Law.    301. 

66.  Action  by  receiver  to  recover  money 
paid  on  the  draft — Campbell  v.  Manufactur- 
ers' Nat.  Bank.  67  N.  J.  Law,  301. 

67.  Iron  Citv  Nat.  Bank  v.  Fifth  Nat. 
Bank    (Tex.   Civ.   App.)    71    S.   W.    612. 


68.  A  cashier  receiving  money  on  a  lease 
and  depositing  It  subject  to  the  check  of 
the  person  to  whom  It  Is  due — Knapp  v. 
Saunders.  15  S.  D.  464. 

60.  Jones  v.  First  Nat.  Bank  (Neb.)  90 
N.  W.  912. 

70.  As  where  he  so  acts  In  securing  a 
draft — Campbell  v.  Manufacturers'  Nat.  Bank, 

67  N.   J.   Law,    301. 

71.  Campbell  v.  Manufacturers'  Nat.  Bank, 
57    N.    J.    Law,    301. 

72.  Campbell  v.  Manufacturers'  Nat.  Bank, 
57   N.   J.    Law,    301. 

73.  As  where  the  cashier  advised  one 
about  to  sell  goods  to  an  insolvent  indebted 
to  the  bank,  who  was  engaged  on  govern- 
ment contract  work  that  the  insolvent's  note 
would  be  paid,  though  the  bank  did  not  real- 
ize any  profit  from  the  sale  of  the  goods 
to  the  insolvent — Taylor  v.  Commercial  Bank, 

68  App.    Dlv.    (N.    Y.)    458. 

74.  As  where  the  cashier  certifies  to  a 
state  insurance  commissioner  that  an  in- 
surance company  has  on  deposit  a  sum  paid 
in  as  the  full  amount  of  its  capital  stock, 
where  the  deposit  in  fact  consisted  largely 
of  the  proceeds  of  notes  given  In  payment 
for  stock  discounted  on  the  company's  in- 
dorsement and  for  which  the  sf^-k  was  held 
as  collateral  security,  tlie  certificate  being 
made  to  enable  the  bank  to  secure  a  deposit 
from  the  company  or  to  sell  the  stock  held 
as  collateral — Hindman  v.  First  Nat.  Bank, 
112  Fed.   931,   50  C.  C.  A.  623. 


§  2 


INSOLVENCY. 


295 


purpose  of  obtaining  collateral  securities  from  a  third  person.''^  Where  a  bank 
cashier  makes  a  sale  in  which  he  and  another  are  jointly  interested  and  deposits 
the  eutire  proceeds  in  his  own  name  and  converts  them  to  his  own  use,  no  one 
connected  with  the  bank  having  anj^thing  to  do  with  the  transaction  or  having 
any  knowledge  of  the  third  person's  interest,  the  bank  occupies  no  trust  relation 
towards  such  person.'^®  Where  a  broker  receives  a  draft  to  be  used  in  speculation, 
drawn  by  the  cashier  of  the  bank  payable  to  himself,  the  broker  is  placed  on 
inquiry  as  to  the  ownership  of  the  fundsJ^  A  broker  who  receives  drafts  drawn 
by  the  cashier  of  a  bank  to  his  own  order  for  use  in  speculation  may  be  liable 
to  the  true  owner  for  the  funds  used,  though  he  had  no  knowledge  of  the  owner- 
ship, but  may  be  given  credit  for  the  proceeds  of  money  repaid  by  him  which 
may  be  traced  into  the  hands  of  the  ov/ner,  though  he  cannot  have  credit  for 
moneys  merely  traced  to  the  cashier.'^® 

Notice  to  bank  from  Tcnowlcdge  of  officers. — A  bank  is  chargeable  with  the 
knowledge  of  its  agent/"  Knowledge  of  a  bank  cashier  concerning  acts  done  in 
the  scope  of  his  authority  must  be  imputed  to  the  bank,^"  as  when  acquired  by  the 
cashier  in  the  reception  of  a  deposit."  The  bank  is  not  chargeable  with  notice  of 
fraudulent  acts  of  an  officer  for  his  personal  ends  and  outside  the  scope  of  his  au- 
thority,^- such  as  knowledge  of  its  cashier  that  he  has  no  authority  to  pledge  a 
certificate  of  stock  indorsed  in  blank  for  his  personal  debt,*^  and  so  knowledge 
gained  by  a  cashier  as  president  of  another  corporation  is  not  imputed  to  the  bank 
where  he  is  acting,  as  for  the  bank  in  his  own  interests.**  Xotice  to  a  director 
privately  or  received  by  him  through  sources  open  to  persons  generally,  and  which 
he  has  not  communicated,  is  notice  to  the  bank.^"^  Change  in  officers  does  not  af- 
fect notice.previously  acquired.®® 

Insolvency. — A  creditor  who  appears  and  makes  no  objection  on  the  hearing 
of  a  receiver's  report  recommending  the  allowance  of  claims  cannot  afterwards 
contend  that  certain  of  the  claims  were  invalid.®^  Failure  of  consideration  mav 
be  urged  against  an  action  by  a  receiver.*®  Claims  purchased  after  its  insolvency 
cannot  be  set  off  against  a  debt  owing  a  bank.*'  On  a  contention  that  claims  sought 
to  b£  set  off  against  defendant's  note  were  purchased  after  insolvency,  a  stipula- 
tion that  a  bank  went  into  insolvency  expresses  a  positive  and  affirmative  act  on 
the  part  of  the  bank.'" 


75.  Tecumseh  Nat.  Bank  v.  Chamberlain 
Banking-  House,    63  Neb.   163. 

76.  Bank  of  Overton  v.  Thompson  (C.  C. 
A.)    118   Fed.   798. 

77.  Mendel   v.    Boyd    (Neb.)    91   N.    W.   860. 

78.  Mendel   v.   Boyd    (Neb.)    91   N.   W.    860. 

79.  Where  he  has  knowledge  that  the 
notes  and  mortgage  securing  tliem  are  fraud- 
ulent and  without  consideration,  the  bank 
cannot  hold  notes  as  collateral — Baldwin  v. 
Davis    (Iowa)    91   N.    W.    778. 

80.  Such  as  knowledge  of  the  condition 
of  stock  which  he  purchased  as  cashier — 
Farmers'  &  Merchants'  Bank  v.  Loyd,  89  Mo. 
App.    262. 

81.  As  where  a  married  woman  deposits 
a  conveyance  of  her  property  with  the 
bank's  cashier  to  be  delivered  on  payment 
of  the  purchase  money  and  on  receipt  of 
the  purchase  money  the  cashier  in  violation 
of  his  agreement  places  It  to  the  credit  of 
the  woman's  husband — Rhinehart  v.  Peo- 
ple's Bank.  89  Mo.  App.   511. 

82.  Jones  v.  First  Nat.  Bank  (Neb.)  90 
N.  W.  912.  A  bank  is  not  chargeable  with 
notice  of  the  fraudulent  purpose  of  a  direc- 
tor in   obtaining   a  loan   from   his   mere   ca- 


pacity   as    a    director — Southern    Commercial 
Sav.   Bank  v.   Slattery's  Adm'r,   166  Mo.   620. 

83.  Brady  v.  Mt.  Morris  Bank,  65  App. 
Div.    (N.   Y.)    212. 

84.  Note  of  a  corporation  received  by  it 
without  consideration  and  discounted  by  the 
cashier  after  consultation  with  the  directors 
— People's  Sav.  Bank  v.  Hine  (Mich.)  9  De- 
troit Leg.  N.  283,  91  N.  "W.  130. 

S5.     Black  V.   First  Nat.  Bank,  96  Md.   399. 

86.  United  States  Nat.  Bank  v.  Forstedt 
(Neb.)    90   N.   W.    919. 

87.  There  was  advertisement  for  the  pre- 
sentation of  claims  and  filing  of  objections. 
The  claims  in  controversy  were  asserted  to 
represent  an  illegal  deposit  of  public  funds 
— Baker  v.  Williams,  etc..  Banking  Co.  (Or.) 
70  Pac.  711. 

88.  As  where  notes  are  given  for  accom- 
modation to  swell  the  apparent  assets  of  a 
bank — Chicago  Title  &  Trust  Co.  v.  Brady, 
165  Mo.   197. 

89.  Dyer  v.  Sebrell,  135  Cal.  597,  67  Pac. 
1036. 

90.  Dyer  v.  Sebrell,  135  Cal.  597,  67  Pac 
1036. 


296 


BANKING  AND  iTINANCE. 


§   2 


Winding  up.— Tn  order  that  directors  acting  as  trustees  in  statutory  proceed- 
ings to  wind  up  the  affairs  of  a  bank  be  removed,  the  petition  must  show  mal- 
feasance or  nonfeasance  sufficient  to  warrant  the  same."^ 

Reorganization.— Creditors  who  acquie^'ce  in  proceedings  for  reor.trnnization 
may  by  the  acceptance  of  benefits  be  estopped  from  denying  their  validity."'^ 

Stockholders'  individual  liability.— A  hiw  imposing  a  liability  on  stockholders 
may  afl'ect  stockholders  of  a  bank  organized  prior  to  its  passage,^^  though  statutes 
providing  for  procedure  to  enforce  stockholders'  liability  do  not  apply  to  actions 
actually  "pending,"  and  may  operate  on  stockholders  becoming  such  either  before 
or  after  the  time  when  they  take  effect^'  In  order  to  impose  an  individual  liabil- 
ity on  its  stockholders,  the  corporation  need  not  exercise  all  the  functions  of  a 
bankincr  corporation.^®  Acceptance  of  stock  issued  is  not  essential  to  fix  liability 
on  the°person  who  allows  it  to  stand  on  the  corporate  books  in  his  name."  Under 
statutes  providing  for  continuation  of  liability  after  assignment  of  stock  the  lia- 
bility is  limited  to  creditors  at  the  time  of  transfer,^^  and  notice  of  transfer  need 
be  '^iven  only  where  the  stockholder  is  liable  for  an  existing  debt.**'  Liability 
exists  for  deposits.^  Stockholders'  individual  liability  under  certain  statutes  may 
only^be  enforced  by  the  creditors.^  The  court  may  authorize  the  receiver  to  com- 
promise, it  being  within  his  authority  to  compound  bad  or  doubtful  debts."  Where 
stockholders  of°an  insolvent  bank  are  made  liable  as  such  for  one  year  after  the 
transfer  of  stock,  liability  continues  one  year  beyond  the  time  fixed  for  the  pay- 
ment of  debts  in  proceedings  for  reorganization.*  Action  is  regarded  as  begun 
at  the  time  of  service  of  summons.'*     A  demand  is  not  necessary  before  suit,"  and 


91.  A  petition  which  falls  to  state  ex- 
travagance, negligence  or  delay  in  perform- 
ance of  the  duties  by  the  trustees,  or  that 
they  have  violated  any  law  or  contract,  done 
any  wrong  or  withheld  any  right  or  threat- 
ened anv  such  thing  is  insufficient — Sands  v. 
Gund   (Xeb.)   93  N.  W.  990. 

92.  As  where  creditors  accept  certificates 
of  deposit  after  the  organization  under  L. 
1897.  c.  89  without  questioning  the  validity 
of  the  re-organization,  they  cannot  state 
that  it  was  void  because  based  on  a  petition 
formerly  dismissed  by  a  judge  other  than 
the  one  granting  the  order  but  without  his 
knowledge — Hunt  v.  Roosen.  87  Minn.  68. 
Evidence  held  to  show  acquiescence  of  cred- 
itors in  proceedings  for  re-organization  of 
an  insolvent  bank— Hunt  v.  Roosen,  87  Minn. 

68 

93.  Construing  L.  1882.  c.  409.  Banking 
Law  1892.  §  52,  and  statutory  construction 
^g^^    §  31 — Hagmayer  v.  Alten,  36  Misc.  Rep. 

(N.  Y.)  59. 

04.  Under  L.  1897.  c.  441.  amending  I... 
1892.  c.  689.  {  52.  requiring  proceedings  to 
be  conducted  only  In  the  name  and  behalf  of 
a  receiver  on  dissolution  of  a  bank,  actions 
actually  pending  are  not  affected,  nor  does 
it  apply  to  defendants  not  yet  served  in  an 
action  actually  pending — Mahoney  v.  Bern- 
hard.    169    N.    Y.    589. 

95.  Banking  Law  1892.  §  52 — Hagmayer  v. 
Alten,   36  Misc.    Rep.    (N.   Y.)    59. 

96  Const,  art.  lib.  §  7— Hamilton  Nat. 
Bank  V.  American  I^  &  T.  Co.  (Neb.)  92  N.  W. 

189 

97.  A  Wife  may  be  regarded  as  having 
been  an  owner  notwithstanding  on  being 
notified  of  the  Issue  of  stock  to  her  she  re- 
fused to  receive  It  and  assigned  it  to  her 
husband,  but  continued  to  appear  as  holder 


on  the  books — Construing  Civil  Code.  §  322. 
defining  the  term  "stockholder"  to  include 
equitable  owners  as  well  as  those  evidenced 
as  owners  on  the  books  of  the  corporation 
— Abbott   v.   Jack.    136   Cal.    510,    69    Pac.    257. 

98.  Construing  Rev.  St.  189S.  §  2024.  sub- 
sec.  16.  and  holding  that  an  action  must  be 
commenced  within  six  months  after  the 
transfer — Gager    v.    Paul,    111    Wis.    63S. 

99.  So  held  construinsr  charter  of  a  state 
bank  providing  that  stockholders  shall  be 
liable  as  sureties  to  the  extent  of  the  par 
value  of  their  stock  at  the  time  of  the  crea- 
tion of  the  debt,  and  Code  1882,  §  1496.  and 
exempting  from  liability  as  to  debts  subse- 
quently contracted  without  reference  to  his 
holding  one  who  for  a  short  time  held  stock 
as  collateral — Brunswick  Terminal  Co.  v. 
National  Bank  of  Baltimore,   112  Fed.   812. 

1.  Under  Stock  Corporation  Law  (L.  1890. 
c.  564,  §  58),  providing  that  stockholders  shall 
not  be  liable  for  corporate  debts  not  pay- 
able within  two  years  from  the  time  they 
are  contracted  or  unless  the  corporation  is 
sued  within  two  years  after  they  become  duo 
— Barnes  v.  Arnold,  169  N.  Y.  611. 

2.  Cannot  be  collected  by  corporate  ofH- 
cer  or  receiver.  Const,  art.  lib.  §  7 — Ham- 
ilton Nat.  Bank  v.  Am.  Loan  &  Trust  Co. 
(Neb.)    92    N.    W.    189. 

3.  Where  liability  was  denied  and  stock- 
holders were  Insolvent  (Comp.  St.  c.  8,  §  35) 
— State  V.  German  Sav.  Bank  (Neb.)  91  N. 
W-    414. 

4.  Construing  Laws  1897,  c.  89,  {  4 — Hunt 
V.  Roosen.  87  Minn.   68. 

5.  Rev.  St.  1898,  §  4239 — Gager  v.  Paul. 
Ill  Wis.  638. 

«.  Parker  v.  Adams  (N.  Y.)  38  Misc.  Rep. 
325. 


§  3 


NATIONAL  BANKS. 


297 


tte  receiver  need  not  have  secured  the  return  nulla  bona  of  executions  against 
himself  on  all  claims^  The  stockholders  cannot  defend  on  the  ground  that  he 
has  unreported  assets,®  or  because  of  failure  to  collect  all  of  a  first  assessment, 
or  the  sale  of  a  large  part  of  the  assets  at  a  low  price  under  order  of  court.* 
The  number  of  shares  defendant  held,  the  total  number  of  the  shares,  and  the 
amount  and  date  of  the  debts,  should  be  shown.^<*  On  an  issue  of  insolvency,  the 
receiver  appointed  after  the  voluntary  closing  of  a  bank  may  testify  to  the  steps 
taken  to  collect  paper  coming  into  his  hands  and  state  that  he  is  unable  to  say 
when  any  of  it  will  be  paid,  and  a  witness  may  testify  that  his  note,  long  over- 
due, was  accommodation  paper  and  his  written  assumption  of  its  payment  executed 
concurrently  may  be  introduced."  Interest  from  the  date  of  judgment  only  may 
be  allowed."  A  stockholder  may  be  liable  for  interest  from  the  time  of  closing 
to  the  time  of  payment,  in  excess  of  the  amount  of  deposit  and  contractual  inter- 
est to  the  time  of  the  closing."  Payments  by  a  stockholder  by  reason  of  his  in- 
dorsement of  the  banFs  paper  in  excess  of  his  statutory  liability  may  be  pleaded 
as  an  equitable  set-off.^* 

§  3.  National  banJcs;  officers  and  examiners. — The  liabilities  of  directors 
of  national  banlvs  may  be  shifted  by  them  to  sub-committees.^'*  A  bank  examiner 
is  not  the  agent  of  the  bank  in  its  negotiations  tending  towards  a  resumption  of 
business.^® 

Powers. — National  banks  have  no  powers  except  those  expressly  granted  or 
incidental  to  the  business  for  which  they  are  established."  They  cannot  become 
sureties  in  a  replevin  suit.^®  They  may  purchase  bonds  issued  by  a  city  board  of 
education.^*  A  bank  has  power  to  lease  ground  under  an  agreement  that  it  will 
erect  a  building  thereon  and  may  erect  a  building  more  than  sufficient  for  its 
own  use,  if  adapted  to  make  the  property  most  productive.  The  lease  may  be 
for  a  term  exceeding  its  corporate  life,  and  the  aggregate  rental  may  exceed 
the  capital  stock.^°  A  national  bank  may  be  substituted  to  the  rights  of  a  surety 
who  has  taken  a  mortgage  on  real  estate  though  the  bank  itself  has  no  power  to 
take  such  a  mortgage.^^ 


7.  Brink-worth  v.  Hazlett  (Neb.)  90  N.  W. 
537. 

8.  Brinkworth  v.  Hazlett  (Neb.)  90  N.  "W. 
537. 

9.  Beckham  v.  Hague  (N.  Y.)  38  Misc.  Rep. 
606. 

10.  Under  1  Mills'  Ann.  St.  5  518,  declar- 
ing stockholders  of  a  banking  corporation 
individually  liable  for  all  its  debts  con- 
tracted while  they  were  stockholders  equal- 
ly and  ratably  to  the  extent  of  their  shares 
— Richardson  v.  Boot  (Colo.  App.)  70  Pac. 
454. 

11.  State  V.  Stevens   (S.  D.)   92  N.  W.  420. 

12.  If  the  recovery  is  not  made  greater 
than  the  par  value  of  the  stock.  Constru- 
ing L.  1892,  c.  689 — Mahoney  v.  Bernhard 
(N.    T.)    45    App.   Div.    499. 

13.  Parker  v.  Adams  (N.  Y.)  38  Misc.  Rep. 
825. 

14.  Strauss  v.  Denny,  95  Md.  690. 

15.  As  where  discounting  and  examining 
committees  are  appointed,  which  permit  the 
cashier  during  the  period  of  three  j'ears  to 
discount  doubtful  notes  for  a  certain  person 
to  the  extent  of  two-thirds  of  the  capital. 
It  Is  held  that  the  committees  were  liable 
to  the  Injured  stockholders — Hanna  v.  Peo- 
ple's Nat.  Bank   (N.  Y.)    85  Misc.   Rep.   517. 

16.  So  his  representations  in  regard  to  the 
liability  of  a  defaulting  officer  of  the  bank 


and  as  to  the  value  and  condition  of  the 
securities  already  furnished  by  him  are  not 
binding  on  the  bank  and  one  who  furnishes 
collateral  security  to  a  defaulting  officer  for 
his  indorsements  on  paper  previously  sold 
by  him  to  the  bank  cannot  rely  on  such  rep- 
resentation as  a  defense  in  an  action  by  the 
bank  to  foreclose  its  lien  on  such  securities 
— Tecumseh  Nat.  Bank  v.  Chamberlain  Bank- 
ing House,   63  Neb.   163. 

17.  Bailey  v.  Farmers'  Nat.  Bank,  97  111 
App.  66. 

18.  Bailey  v.  Farmers'  Nat.  Bank,  97  111 
App.  66. 

19.  Rev.  St.  U.  S.  §  5136;  Comp.  Sts.  U.  S. 
1901,  p.  3455 — Newport  Nat.  Bank  v.  Board  of 
Education,  24  Ky.  Law  Rep.  876,  70  S.  W.  186. 

20.  The  lessor  of  land  to  a  bank  is  not 
accountable  to  the  stockholders  or  creditors 
of  the  bank  because  the  bank  exceeded  its 
powers  in  the  expenditure  of  money  in 
erection  of  a  building  thereon  which  was 
to  become  part  of  the  realty  and  more  than 
was  required  by  the  terms  of  the  lease, 
and  such  excessive  expenditure  is  not  a 
lien  on  the  property  after  it  has  returned 
to  the  hands  of  the  lessor — Brown  v.  Schleier 
(C.    C.   A.)    118    Fed.    981. 

21.  Magoffin  V.  Boyle  Nat.  Bank,  24  Ky. 
I>aw  Rep.  585,  69  S.  W.  702. 


298 


BANKING  AND  FINANCE. 


Violation  of  hanking  act. — An  action  by  the  shareholders  against  directors  for 
yiolation  of  the  national  banking  act  may  be  maintained  where  the  bank  fails  to 
bring  an  action  against  the  directors  after  request,  and  it  may  be  brought  before 
dissolution  of  the  bank,  in  behalf  of  all  shareholders,  and  the  bank  made  a  party. 
One  shareholder  cannot  maintain  such  an  action  for  his  benefit  alone  while  the 
bank  is  a  going  concern. '^^ 

Stock. — A  transfer  of  national  banlv  stock  is  not  void  for  reason  that  at  the  time 
of  the  transfer,  the  assets  of  the  bank  are  unequal  to  the  discharge  of  its  liabil- 
ities, if  such  fact  is  unknown  to  the  seller,  though  he  has  knowledge  that  the  bank 
has  less  than  the  legal  reserve,  and  the  fact  that  the  purchaser  of  bank  shares  is  in- 
solvent, where  the  seller  has  no  knowledge  of  such  fact,  does  not  render  the  sale 
void  on  a  subsequent  suspension  of  the  bank.^^  The  directors  of  a  national  bank 
are  not  authorized  to  make  an  assessment  to  pay  a  deficiency  in  the  capital  stock 
but  an  assessment  for  such  purpose,  under  Eev.  St.  §  5205,  must  be  made  by 
the  shareholders.^* 

Lien  on  stock. — The  indorser  of  a  note  to  a  national  bank  is  not  released  by 
the  fact  that  the  bank  allowed  the  maker  to  part  with  his  stock,  since  the  national 
bank  has  no  lien  on  such  stock.^"*  The  bank  may  hold  its  stock  as  collateral  se- 
curity for  a  portion  of  its  purchase  price. -^  A  lien  on  stock  for  indebtedness  to 
the  bank  created  after  receipt  of  notice  of  pledge  is  inferior  to  the  rights  of  thfe 
pledgee. ^^ 

Receivership. — The  appointment  of  a  receiver  on  insolvency  of  a  national  bank, 
by  the  comptroller,  does  not  end  its  legal  existence  so  as  to  render  it  unable  to 
sue  and  be  sued.-^  The  receiver  has  no  rights  in  excess  of  those  of  the  bank,  its 
stockholders,  and  creditors. ^^  He  does  not  have  all  the  powers  of  the  United 
States  in  its  sovereign  capacity.*" 

Enforcement  of  stockholders'  liahiUty. — On  voluntary  liquidation  of  a  national 
bank,  the  individual  liability  of  stockholders  may  be  enforced  only  by  a  proceed- 
iuo-  in  equity  in  the  nature  of  a  creditor's  suit  in  behalf  of  all  the  creditors  broughf 
in  the  district  in  which  the  bank  is  located,  and,  if  ancillary  proceedings  are  nec- 
essary against  nonresident  stockholders,  they  should  be  authorized  by  the  court 
of  original  jurisdiction  and  brought  by  the  receiver  or  some  person  appointed'  by 
the  court.*^  Where  the  comptroller  of  the  currency  fixes  the  amount  of  personal 
liability  of  a  stockholder  in  an  insolvent  bank  and  decides  that  it  is  necessary  to 
enforce  it,  the  claim  may  be  sold  or  assigned  by  the  receiver  as  other  assets  of 
the  bank.  The  comptroller's  decision  as  to  the  necessity  of  instituting  proceed- 
ings cannot  be  questioned  in  other  litigation.^^     Where  transfer  by  the  receiver 


22.  Zinn  v.  Baxter,   65  Ohio  St.   341. 

23.  R.  S.  U.  S.  §  5191,  U.  S.  Comp.  St.  1901, 
p.  3486,  does  not  cause  a  reduction  of  thie  re- 
serve below  the  legal  requirement  to  create 
a  presumption  of  inability  to  continue  busi- 
ness— Earle  v.  Carson,  188  U.  S.  42. 

24.  "Weinhard  v.  Commercial  Nat.  Bank, 
68  Pac.  806.  41  Or.  359;  Williams  v.  Same,  Id. 

25.  Smith  V.  First  Nat.  Bank,  115  Ga. 
608. 

26.  Rev.  St.  U.  S.  §  5201.  U.  S.  Comp.  St. 
1901,  p.  3494 — Brown  v.  Ohio  Nat.  Bank,  18 
App.  D.   C.   598. 

27.  Curtice  V.  Crawford  County  Bank  (C. 
C.    A.)    118    Fed.    390. 

28.  So  where  the  legal  title  but  not  the 
exclusive  ownership  of  a  note  is  In  the  name 
of  the  bank,  a  suit  on  the  note  may  be  main- 
tained in  the  bank's  name — Camp  v.  First 
Nat.  Bank  (Fla.)   33  So.  241. 


29.  He  cannot  set  aside,  on  the  ground 
of  ultra  vires,  an  executed  contract  or  have 
property  charged  with  a  lien  for  money 
expended  under  such  a  contract;  as  where 
property  has  been  leased,  money  expended 
in  the  erection  of  a  banking  house  and  the 
building  subsequently  surrendered  to  the 
owner  of  the  land  and  the  lease  cancelled — 
Brown   v.   Schleier   (C.   C.  A.)    112   Fed.   577. 

30.  He  cannot  maintain  an  action  based 
on  the  ultra  vires  character  of  a  contract 
made  ten  years  prior  to  his  appointment 
and  not  at  the  time  objected  to  by  the  Unit- 
ed States  or  stockholders — Brown  v.  Schleier 
(C.  C.  A.)   118  Fed.  981. 

31.  Williamson  v.  American  Bank  (C.  C. 
A.)    115    Fed.    793. 

32.  Waldron  v.  Ailing  (N.  Y.)  73  App.  Dlv. 
86. 


NATIONAL  BANKS. 


299 


to  plaintiff  is  established,  it  will  be  presumed  that  the  formalities  requisite  to  the 
validity  of  a  transfer  had  been  complied  with.^^  A  special  authority  conferred 
by  the  comptroller  on  the  receiver  of  a  national  bank  to  bring  actions  for  an  as- 
sessment is  not  revoked  by  a  general  authority  to  compromise  or  settle  all  the  claims 
or  assets  of  the  bank.^*  A  second  assessment  may  be  made  by  the  comptroller 
where  the  first  is  insufficient  to  meet  the  debts  if  the  two  do  not  exceed  the  amount" 
of  liability.^'^  The  stock  register  is  not  conclusive  as  to  persons  liable  to  assess- 
ment after  insolvency  of  a  national  bank.^*  The  complaint  in  a  proceeding  to 
recover  an  assessment  need  not  directly  allege  the  amount  of  capital  stock. ^'^ 

The  limitation  of  actions  to  enforce  liability  begins  to  run  from  the  time  th,e 
assessment  is  levied,*^  and  the  action  may  be  barred  notwithstanding  Act  June  30, 
1876,  §  2,  19  Sts.  63,  ch.  156,  provides  that  an  action  to  enforce  the  individual 
liabilities  of  a  shareholder  in  a  national  bank,  under  Eev.  Sts.  TJ.  S.  §  5151, 
shall  not  be  barred  as  long  as  there  are  outstanding  claims  against  the  bank. 
Such  actions  are  within  the  meaning  of  a  limitation  act  relating  to  actions  on  con- 
tracts not  in  writing,  expressed  or  implied  or  on  a  liability  created  by  statute.^* 
Uncontradicted  evidence  of  the  receiver  that  he  made  personal  demand  on  the 
stockholder  who  admitted  having  received  notice  of  the  assessment  is  sufficient  to 
show  notice  and  demand.*" 

State  interference  and  powers  of  state  courts. — Where  the  charter  of  a  na- 
tional bank  has  expired  and  it  is  in  process  of  liquidation,  the  officers  may,  by 
the  supreme  court  of  a  state,  be  compelled  to  allow  an  examination  by  the  stock- 
holders of  its  books,  papers,  and  assets.*^  An  application  for  the  issuance  of  a 
new  certificate  by  a  stockholder  who  has  lost  a  certificate  of  stock  in  a  national 
bank  may  be  made  to  a  state  court.*^  A  state  law  prescribing  a  penalty  on  na- 
tional banks  receiving  deposits  when  insolvent  is  invalid.*^  The  receiver  is  bound 
by  state  laws  concerning  fraudulent  conveyances  if  he  attempts  to  enforce  them 
in  a  state  court.**  A  national  bank,  whether  solvent  or  insolvent,  is  not  sub- 
ject to  an  attachment  before  judgment.*"*  A  bank  may  intervene  in  an  attach- 
ment in  a  state  court  without  becoming  a  party  so  as  to  necessitate  a  dismissal  of 
the  suit,  but  where  a  bank  intervenes  in  an  attachment  suit,  and  plaintiff  brings 
a  subsequent  action  against  the  bank  and  also  attaches  the  property  involved,  the 
attachment  should  be  dissolved.*®  The  privilege  of  a  national  bank  against  at- 
tachment does  not  prevent  a  suit  in  equity  in  attachment  against  a  bank  and  one 
who  sold  the  bank  a  bill  of  lading  with  a  draft  attached,  for  breach  of  contract 
and  for  a  return  of  the  money  from  the  bank.*' 


33.  Waldron  v.  Ailing  (N.  T.)  73  App. 
Dlv.    86. 

34.  McClalne  v.  Rankin  (C.  C.  A.)  119 
Fed.   110. 

35.  Studebaker  v.  Perry,  184  U.  S.  258, 
46   Law.   Ed.    528. 

86.  The  presumption  arising  therefrom 
may  be  rebutted  by  evidence  of  a  sale  of 
stock  In  good  faith,  and  the  performance 
of  all  duties  imposed  on  the  seller  to  secure 
transfer  on  the  bank's  register — Earle  v. 
Carson,  188  U.  S.   42. 

37.  Allegations  of  tRe  existence  of  five 
hvindred  shares,  par  value  $100,  and  a  ratable 
assessment  at  $100  per  share  amounting  to 
$50,000  are  sufficient — McClalne  v.  Rankin 
(C.  C.  A.)   119  Fed.  110. 

38.  Construing  Code  Civ.  Proc.  {  394 — 
Beckham  v.  Hague  (N.  T.)  38  Misc.  Rep. 
606. 

39.  McDonald  v.  Thompson,  184  U.  S.  71, 
46   Law.   Ed.    437. 


40.  McClalne  v.  Rankin  (C.  C.  A.)  119  Fed. 
110. 

41.  Tuttle  V.  Iron  Nat.  Bank,  170  N.  T.  9. 

42.  Application  to  the  supreme  court  un- 
der stock  corporation  law  (L.  1892.  c.  "688. 
§§  50,  51),  held  to  be  within  the  meaning  of 
22  St.  1882.  c.  290,  J  4;  U.  S.  Comp.  St.  1901, 
p.  3458 — Matter  of  Hayt  (N.  Y.)  39  Misc. 
Rep.    356. 

43.  Iowa  Code,  §§  1884,  1885 — Baston  v. 
State  of  Iowa,  188  U.  S.   220. 

44.  Watts  V.  Dubois  ^Tex.  Civ.  App.)  66 
S.  W.  698. 

45.  And  the  statute  making  such  pro- 
vision is  not  repealed  by  implication,  by  the 
Act  of  Congress  July  12,  1882,  22  Sts.  102. 
R.  S.  U.  S.  §  5242 — Van  Reed  v.  People's  Nat. 
Bank,  173  N.  T.  314. 

46.  Willard  Mfg.  Co.  v.  Merchants'  Ua.t. 
Bank,  130  N.  C.  609;  Willard  Mfg.  Co.  v. 
George  H.  Tirney  &  Co.,  Id.   611. 

47.  Action  by  purchaser  of  merchandise — 


300 


BANKING  AND  FINANCE. 


§   4 


Usury  by  national  tanks. — Action  to  recover  a  penalty  for  exaction  of  usuri- 
ous interest  may  be  maintained  in  any  state  court,  and  is  a  civil  action  of  which 
the  chancery  court  may  have  jurisdiction.**  The  remedy  given  by  Eev.  St.  U..  S. 
§  5198,  is  exclusive.**  Twice  the  amount  of  the  entire  interest  and  not  twice 
the  amount  of  the  excess  interest  is  the  amount  to  be  recovered.^"  There  can  be 
no  recovery  of  interest  on  the  amount.^^  The  legal  interest  allowed  on  foreclosure, 
<i  deduction  having  been  made  of  interest  in  excess  of  the  legal  rate,  cannot  be 
recovered  in  double  amount  under  Eev.  St.  §  5198.^*  Usurious  interest  actually 
paid  on  discounting  and  loaning  a  series  of  notes  cannot  be  applied  to  the  satis- 
faction of  the  principal  of  the  debt  by  the  bank.^^  A  petition  showing  that  an 
tiction  to  recover  usurious  interest  is  not  begun  within  two  years  from  the  time 
the  transactions  occurred,  is  not  rendered  good  as  against  a  demurrer  by  an 
^.negation  that  the  charge  and  reservation  of  the  usurious  interest  were  without 
plaintiff's  knowledge  or  consent.^* 

§  4.  Savings  banks. — The  question  of  the  status  of  a  bank  as  a  savings  bank 
may  be  for  the  jury.^^  Wliere  a  savings  bank  is  by  special  act  changed  to  a 
bank  having  a  capital  stock  representing  guaranty  funds  to  the  depositors,  the 
holders  of  which  had  no  power  to  elect  trustees  or  share  in  the  management  of 
the  institution,  a  double  liability  is  not  imposed  on  such  stock  on  insolvency.^^ 
Provisions  that  capital  stock  of  a  savings  bank  shall  be  security  to  non-stockhold- 
ing depositors  do  not  give  them  priority  over  general  creditors.^^ 

Powers. — Persons  dealing  with  banks  must  take  notice  of  their  limited  pow- 
ers.°'  A  savings  bank  may  agree  as  to  the  time  and  amount  of  interest  pay- 
ments."*' A  contract  by  a  savings  bank  to  borrow  money  to  pay  deposits  is  not 
enforceable  against  non-stockholding  depositors  and  is  ultra  vires.®°  A  savings 
bank  may  be  estopped  to  deny  liability  to  repay  money  expended  for  its  benefit 
at  its  request.®^ 

Liabilities  of  directors. — Directors  of  a  savings  bank  who  appropriate  its  funas 
willfully  to  sustain  another  bank  controlled  by  them  by  pretending  to  purchase  its 
worthless  paper  are  liable  to  creditors  and  stockholders  for  misappropriation.  A 
depositor's  assignee  may  bring  an  action  therefor,  as  may  one  who  becomes  a  cred- 
itor after  the  misappropriation,  or  any  one  creditor  though  he  has  not  obtained 
a  judgment  against  the  bank,  and  a  specific  demand  for  an  accounting  need  not 
be  made.'^ 


Russel  V.   Smith   Grain   Co.,    80   Miss.    688,    32 
So.    287;   Searles   v.   Same.   Id. 

48.  Construing-  Acts  18S7,  c.  97 — McCreary 
V.    First   Nat.   Bank    (Tenn.)    70   S.   W.    821. 

49.  Charleston  Nat.  Bank  v.  Bradford,  51 
W.  Va.  255.  Cash  payments  cannot  be  set 
off  in  an  action  on  the  note — Haseltine  v. 
Cent.  Nat.  Bank,  183  U.  S.  132,  46  Law.  Ed. 
118.  Usury  obtained  by  a  national  bank  in 
discounting  notes  drawing  interest  only 
after  maturity  cannot  be  set  up  by  way  of 
cross-bill  in  an  action  by  the  bank  on  notes 
— First  Nat.  Bank  v.  Hunter  (Tenn.)  70  S.  W. 
371. 

no.  First  Nat.  Bank  v.  "Watt,  184  U.  S. 
151,   46  Law.  Ed.   475. 

51.  Rev.  St.  U.  S.  §  5198;  U.  S.  Comp.  St. 
1901,  p.  3493 — McCreary  v.  First  Nat.  Bank 
(Tenn.)   70  S.  W.  821. 

52.  Talbot  V.  First  Nat.  Bank,  185  U.  S. 
172,    46   Law.    Ed.    857. 

53.  Construing  Rev.  St.  U.  S.  §§  5197.  5198 
— Charleston  Nat.  Bank  v.  Bradford,  51  "W. 
Va.  255. 

64.  Talbot  V.  Sioux  Nat-  Bank,  185  U.  S. 
182,    46  Law.   Ed.    862. 


55.  As  where  It  Is  sought  to  determine 
whether  interest  is  paid  on  deposits  not  sub- 
ject to  checks — Dottenheim  v.  Union  Sav. 
Bank  &  Trust  Co.,   114  Ga.   7S8. 

56.  Gen.  L.  1867,  Sp.  L.  1873.  c.  117 — State 
V.    Sav.   Bank   of  St.    Paul,    87   Minn.    473. 

57.  Act  April  11.  1862,  for  the  incorpora- 
tion of  savings  banks — Laldlaw  v.  Pac.  Bank 
(Cal.)    67  Pac.   897. 

58.  So  failure  to  loan  money  on  mortgage 
security  Is  not  a  cause  of  action  where  there 
is  no  report  by  two  members  of  the  invest- 
ment board  as  provided  by  Sts.  1894,  ch.  317, 
§  21,  cl.  1 — Gilson  v.  Cambridge  Sav.  Bank, 
180  Mass.   444. 

59.  Act  1889,  p.  280,  confers  additional 
powers  on  savings  banks  generally  without 
regard  to  the  time  of  their  incorporation — 
Dottenheim  v.  Union  Sav.  Bank  &  Trust  Co., 
114  Ga.  788. 

60.  Act  April  11,  1862,  §  10,  and  Act  March 
12,  1864 — Laldlaw  v.  Pac.  Bank,  137  Cal.  392, 
70  Pac.   277. 

61.  Construing  Act  April  11,  1862,  §  10, 
Amendatory  Act  of  March  12.  1864 — Laidlaw 
▼.  Pac.  Bank  (Cal.)   67  Pac.  897. 


§  4 


SAVINGS  BANKS. 


301 


Rules. — The  adoption  of  rules  and  regulations  may  be  evidenced  by  their 
long  use  with  the  knowledge  and  approval  of  the  trustees.®^  The  agreement  of  a 
depositor  to  the  regulations  of  a  savings  bank  may  be  shown  by  his  conduct  and 
need  not  be  evidenced  by  his  signature  to  the  pass  book.®*  Eules  adopted  after 
a  person  becomes  a  depositor  do  not  affect  him,  though  he  agrees  that  notices 
as  to  deposits  shall  be  regarded  as  personal  notices  and  the  rule  has  been  posted 
for  many  years  before  the  depositor's  death. *°  A  rule  for  the  protection  of  a 
savings  bank  adopted  on  account  of  the  inability  of  the  oflBcers  to  identify  every 
depositor  does  not  apply  where  by  reasonable  diligence  the  officers  may  be  able 
to  protect  the  depositor's  interest.^® 

Deposits  and  repayment. — The  relationship  between  a  savings  bank  and  its 
depositors  is  the  ordinary  one  of  debtor  and  creditor,  where  there  is  no  limita- 
tion of  liability  by  by-law  or  regulation."'^  Accounts  subject  to  check  are  to  be 
paid  without  limitation  or  restriction  except  that  the  check  must  be  presented 
mthin  banking  hours  on  banking  days."^  There  may  be  a  joint  tenancy  in  sav- 
ings deposits.*^  A  deposit  in  an  alternative  name  may  be  repaid  to  the  executor 
of  one  of  the  persons  mentioned.''"  Payment  may  be  properly  made  to  the  domi- 
ciliary administrator  of  a  nonresident  depositor,  if  before  notice  of  the  prior  ap- 
pointment of  a  domestic  administrator.''^ 

Reliance  on  pass  hooTc. — Conversion  of  the  pass  book  does  not  pass  title  to 
the  deposit.''^  The  negligence  of  a  depositor  in  losing  his  pass  book  does  not  re- 
lieve the  officer  of  the  bank  from  the  exercise  of  reasonable  care  in  payment  of 
the  deposit,  though  a  by-law  requires  immediate  notice  of  the  loss  of  the  book  to 
the  bank.''*  In  the  absence  of  such  a  regulation,  no  question  of  negligence  can 
arise  where  payment  is  made  on  forged  orders  accompanied  by  the  deposit  book 
which  has  been  lost  and  the  bank  not  notified.'^*  The  fact  that  payment  to  an 
impostor  is  in  the  form  of  a  check  on  another  bank  payable  to  the  real  depositor 
does  not  exempt  the  savings  bank  from  liability.''*  A  bank  may  be  justified  in 
payment  to  a  person  presenting  the  savings  book  and  orders  purporting  to  be  signed 
by  the  owner  where  it  has  no  notice  that  the  book  has  been  lost.''* 


63.  Construing  Const,  art.  12,  5  3.  Civ. 
Code,  §§  571,  574 — Winchester  v.  Howard,  136 
Cal.    432.    69    Pac.    77. 

63.  Affecting  the  contractual  relations  be- 
tween the  savings  bank  and  its  depositors — 
Ladd  V.  Augusta  Sav.   Bank,   96   Me.   510. 

64.  Ladd  V.  Augusta  Sav.  Bank,  96  Me. 
510. 

65.  Rule  forbidding  gifts  of  deposits  ex- 
cept by  assignment  In  writing  duly  acknowl- 
edged— Ranney  v.  Bowery  Sav.  Bank  (N.  Y.) 
39    Misc.    301. 

66.  Where  a  by-law  permits  money  fo  be 
withdrawn  by  the  depositor  or  any  person 
duly  authorized  to  receive  it,  the  decision  of 
the  officers  of  the  bank  as  to  the  sufficiency 
of  the  authority  is  at  their  peril — Ladd  v. 
Augusta  Sav.  Bank,  96  Me.   510. 

67.  Ladd  v.  Androscoggin  County  Sav. 
Bank,   96  Me.  520. 

68.  Construing  Act  1889,  p.  180 — Dotten- 
helm  v.  Union  Sav.  Bank  &  Trust  Co.,  114 
Qa.    788. 

69.  So  held  where  a  mother  and  daughter 
made  a  deposit  in  their  Joint  name,  allowing 
the  survivor  to  take  the  deposit — In  re  Bare- 
field   (N.  Y.)   36  Misc.  Rep.  745. 

70.  The  demand  w^as  accompanied  by  pre- 
sentation of  pass  book  and  testamentary 
letters  and  the  other  person  mentioned  had 
never    deposited    or    withdrawn    any    money 


or  had  possession  of  the  pass  book — Grafing 
V.  Irving  Sav.  Inst.,  69  App.  Div.    (N.  Y.)   566. 

71.  It  was  not  shown  that  there  were 
local  creditors  whose  claims  would  be  lost — 
Maas  V.  German  Sav.  Bank,  73  App.  Div. 
(N.   Y.)    524. 

72.  Newman  v.  Munk  (N.  Y.)  36  Misc. 
Rep.  639.  See  as  to  sufficiency  of  evidence 
of  lack  of  authority  and  fraud  in  the  with- 
drawal of  deposits — City  Sav.  Bank  v.  Enos. 
135  Cal.  167,  67  Pac.  52. 

73.  The  fact  that  a  person  to  whom  pay- 
ment Is  made  had  possession  of  the  bank 
book  is  not  a  defense,  if  the  payment  could 
have  been  avoided  by  a  comparison  of  the 
recipient's  signature  with  the  signature  on 
file — Ladd  v.  Augusta  Sav.  Bank,  96  Me. 
510.  A  by-law  attempting  to  exempt  a  sav- 
ings bank  from  liability  for  loss,  where  no- 
tice is  not  given  of  loss  or  theft  of  the  pass 
book  and  deposit  Is  paid  on  presentation  of 
the  book,  is  not  a  defense  where  payment 
is  on  presentation  of  the  pass  booli  and 
forged  orders — Kingsley  v.  Whitman  Sav. 
Bank,   182   Mass.   252. 

74.  Ladd  v.  Androscoggin  County  Sav. 
Bank,  96  Me.  520. 

75.  Ladd  V.  Augusta  Sav.  Bank,  96  Me 
610. 

76.  A  book  contained  a  statement  that  It 
was  the  order  of  withdrawal  and  that  pay-! 


302 


BANKING  AND  FINANCE. 


§  s 


§  5.  Loan,  investment,  and  trust  companies. — A  trust  company  may  be  es- 
topped to  deny  its  banking  powers."  Agency  of  a  paying  teller  of  a  trust  com- 
pany in  certifying  a  check  may  be  established  by  pre%'ious  similar  acts."  A  loan 
and  trust  company  cannot  guaranty  a  note  giyen  bet^yeen  third  persons  and  not 
negotiated  by  it.'^  In  New  York,  trust  companies  have  no  power  to  loan,  dis- 
count, or  purchase  commercial  paper.*"  A  trust  company  may  pay  a  certificate 
of  deposit  though  it  has  been  assigned.*^  Where  a  trust  company  receives  and 
pays  money  deposited  to  the  credit  of  another  on  the  checks  and  drafts  of  a  de- 
positor, it  must  pay  interest  thereon.*^  Legal  interest  may  be  allowed  on  pre- 
ferred claims  under  the  charter  of  a  trust  company  on  dissolution,  though  the 
fund  thereby  be  exhausted  as  against  general  creditors  and  though  before  disso- 
lution they  received  less  than  legal  interest.*' 

§  6.  Deposits  and  repayment  thereof;  checls,  drafts,  certifications,  receipts, 
credits.  Relation  of  banker  and  depositor. — The  relation  between  a  bank  and  its 
depositors  is  that  of  debtor  and  creditor,**  and  the  bank  becomes  the  absolute  owner 
of  the  actual  deposit.*^  A  bank  cannot  claim  that  it  is  a  gratuitous  bailee  bound 
only  to  use  the  lowest  degree  of  diligence.*^  The  relation  of  banker  and  de- 
positor is  not  created  by  the  deposit  of  a  sum  in  the  nature  of  indemnity  against 
advances  to  be  made  on  checks  of  the  depositor's  agent  given  on  purchase  of 
goods.*^ 

Evidence  of  deposit. — An  entry  in  a  pass  book  is  prima  facie  evidence  of  the 
receipt  of  a  deposit.**  The  fact  that  a  bank  enters  a  check  left  for  collection  to 
the  depositor's  credit  as  cash  is  not  conclusive.*^  On  garnishment  against  a  d«!- 
posit,  the  name  in  which  it  stands  is  presumptive  but  not  conclusive  evidence  of 
ownership.^"  A  written  assignment  of  deposit  found  among  a  deceased  husband's 
papers  does  not  conclusively  show  an  assignment  of  the  wife's  deposit.^^ 

Certificates  of  deposit  and  cashiers  checlcs. — Certificates  of  deposit  may  be 
called  in  after  the  expiration  of  the  time  limit  or,  on  notice,  the  rate  of  interest 
mav  be  reduced.^^  Interest  is  waived  by  withdrawal  before  expiration  of  the 
time  limit.^^  A  cashier's  check  cannot  be  countermanded  by  the  payee  after  in- 
dorsement, it  being  similar  to  a  bill  of  exchange  drawn  by  the  bank  on  itself 


ments  to  persons  producing  the  book  should 
be  deemed  valid  as  to  depositors — "Winter  v. 
Williamsburgh  Sav.  Bank  (N.  Y.)  68  App. 
Div.  193. 

77.  As  where  it  has  fuHy  entered  Into  a 
banking  business  it  cannot  deny  capacity  to 
certify  checks  on  the  ground  that  it  was  not 
chartered  as  a  bank — Muth  v.  St.  Louis  Trust 
Co.,  88  Mo.  App.   596. 

78.  Muth  V.  St.  Louis  Trust  Co.,  88  Mo. 
App.   596. 

79.  Such  a  transaction  Is  ultra  vires  a 
corporation  organized  under  Comp.  L.  of 
Kansas.  1885,  p.  260.  c.  23.  for  the  purpose 
of  transacting  the  business  of  a  loan  and 
trust  company  and  for  buying  and  selling  per- 
sonal property  including  commercial  paper 
with  power  to  enter  into  any  obligation  or 
contract  essential  to  the  transaction  of  Its 
ordinary  affairs — ^Ward  v.  Joslin,  186  U.  S. 
142.   46   Law.  Ed.   1093. 

SO.  L  N.  X  1893,  c.  696.  L.  N.  Y.  1892,  c. 
6S9.  §§  55.  163 — Jenkins  v.  Neff,  186  U.  S.  230, 
46  Law.  Ed.   1140. 

81.  Code  Civ.  Proc.  §  1909 — Zander  v.  N. 
Y.  Security  &  Trust  Co.  (N.  Y.)  39  Misc.  Rep. 
98. 


82.  Muth  V.  St.  Louis  Trust  Co.,  88  Mo. 
App.  596. 

83.  People  v.  American  Loan  &  Trust  Co. 
(N.   Y.)    36  Misc.   Rep.   355. 

84.  Quattrochi  v.  Farmers'  &  M.  Bank, 
89  Mo.  App.  500. 

85.  In  the  absence  of  special  agreement 
— Camp  V.  First  Nat.  Bank  (Fla.)   33  So.  241. 

86.  Campbell  v.  Watson,   62  N.  J.  Eq.  396. 

87.  Armour  v.  Greene  County  State  Bank 
(C.  C.  A.)   112  Fed.  631. 

88.  Quattrochi  v.  Farmers'  &  M.  Bank,  89 
Mo.  App.   500. 

89.  Where  the  bank  has  not  been  neg- 
ligent or  the  depositor  misled,  the  check 
may  be  charged  back  on  its  proving  to  be 
worthless — Union  Safe  Deposit  Bank  v. 
Strauch,   20  Pa.  Super.  Ct.   196. 

90.  Bessemer  Sav.  Bank  v.  Anderson,  134 
Ala.   343. 

91.  Dodge  V.   Lunt,    181   Mass.   320. 

93.  Bank  of  Commerce  v.  Harrison  (N. 
M.)    66    Pac.    460. 

93.  Bank  of  Commerce  v.  Harrison  (N. 
M.)    66  Pac.  460. 


§    6 


REPAYMENT  OF  DEPOSITS. 


303 


and  accepted  in  advance  by  its  issuance ;  the  rights  of  the  parties  are  those  of 
parties  to  a  negotiable  note  payable  on  a  demand.^* 

Repayment  of  deposits. — Eeceipt  of  a  deposit  creates  an  agreement  to  repay 
to  any  one  holding  a  check  if  at  the  time  of  presentation  the  drawer  has  such 
sum  on  deposit.^^  Deposits  may  be  repaid  to  person  making  them,  though  made 
by  him  as  attorney.^®  A  bank  can  refuse  repayment  on  the  ground  that  the  de- 
positor's title  is  defective  or  that  the  deposit  belongs  to  another/^  but  knowledge 
of  an  outstanding  draft  will  not  justify  a  refusal.^*  Where  a  bank  has  notice 
tliat  money  deposited  is  not  the  property  of  the  depositor,  repayment  to  the  de- 
positor or  the  person  in  whose  name  the  deposit  is  entered  will  not  relieve  it 
from  liability,  though  it  cannot  be  required  to  hold  the  deposit  more  than  a  rea- 
sonable time  to  allow  a  third  person  to  protect  his  rights.  JSTotice  of  the  third 
person's  claim  need  not  be  given  by  him  personally,  if  the  bank  acquired  it  of  other 
parties.^^  On  payment  of  a  portion  of  the  deposit  on  a  valid  check,  the  bank  is 
no  longer  liable  therefor  to  the  depositor  or  his  administrator.^  A  bank  is  not 
liable  for  failure  to  reserve  the  proceeds  of  drafts  drawn  against  goods  purchased 
to  the  payment  of  a  check  for  the  purchase  price  which  has  been  presented  at  a 
time  when  there  were  no  funds  to  meet  it.^  Want  of  authority  to  collect  a  deposits 
is  waived  by  failure  to  urge  it  as  a  ground  of  objection  at  the  time  of  demand.' 
The  bank  may  be  estopped  to  deny  liability  for  the  amount  of  a  check.*  A  check 
may  be  revoked  by  the  drawer  at  any  time  before  presentation  for  payment," 
but  if  given  for  a  valuable  consideration,  it  may  be  paid  after  notice  of  revoca- 
tion, though  the  burden  is  thrown  on  the  bank  of  showing  that  it  operated  as 
a  valid  assignment  of  the  funds.®  A  check  is  revoked  by  the  death  of  the  drawer,^ 
and  the  bank  pays  at  its  peril  after  notice.'  After  having  refused  to  pay  any  por- 
tion of  a  check  in  excess  of  the  amount  on  deposit,  the  bank  has  no  right  to  pay  it.* 

Forged  or  altered  checls  and  drafts. — A  bank  is  not  justified  in  paying  to 
the  mere  holder  of  a  check  without  identification  or  evidence  of  the  genuineness 
of  an  indorsement.^"  Variation  between  the  name  of  the  payee  and  that  indorsed 
should  place  it  on  its  guard."  If  it  pay  on  a  forged  indorsement,  it  is  not  en- 
titled to  repayment  from  the  drawer  or  to  retain  the  check.^^  ^  ]^^j^]^  without 
notice  is  not  liable  for  the  payment  of  a  check  to  one  securing  it  under  a  ficti- 


94.  Drinkall  v.  Moviua  State  Bank  (N. 
D.)    88   N.   W.    724. 

95.  Brown  v.  Schintz,  98  lU.  App.  452; 
Petrue  v.  Wakem,  99  111.  App.  463. 

96.  Where  the  bank  has  no  notice  of  In- 
tended misappropriation — Pennsylvania  Title 
&  Trust  Co.  V.  Meyer,  201  Pa.  299. 

97.  Nehawka  Bank  v.  Ingersoll  (Neb.)  89 
N.  W.  618.  The  bank  may  be  compelled  to 
pay  to  the  real  owner — Hanna  v.  Drovers' 
Nat.   Bank,  194  111.   252. 

98.  Nehawka  Bank  v.  Ingersoll  (Neb.) 
89  N.  W.  618. 

99.  Drumm-Flato  Com.  Co.  v.  Gerlack 
Bank,   92  Mo.  App.   326. 

1.  Raesser  v.  Nat.  Exch.  Bank,  112  Wis. 
591. 

2.  Perry  v.  Bank  of  Smithfield,  131  N.  C. 
117. 

3.  Officers  at  the  time  of  demand  stated 
that  they  would  not  pay  interest  and  would 
look  into  the  question  of  paying  the  prin- 
cipal— Atlanta  T.  &  B.  Co.  v.  Close,  115  Ga. 
939. 

4.  Evidence   held  sufficient  for  such  pur- 


pose though  the  funds  had  been  garnished 

Rostad  V.  Union  Bank,   85  Minn.   313. 

5.  Weiand's  Adm'r  v.  State  Nat.  Bank,  23 
Ky.  Law  Rep.  1517,  65  S.  W.  617,  66  S  W 
26. 

6.  Raesser  v.  Nat.  Exch.  Bank,  112  Wis 
591. 

7.  A  bank  paying  after  notice  of  the 
drawer's  death  is  liable  to  his  estate — PuUen 
V.  Placer  County  Bank,  138  Cal.  169,  71  Pac 
83. 

8.  Weiand's  Adm'r  v.  State  Nat.  Bank,  23 
Ky.  Law  Rep.  1517,  65  S.  W.  617,  66  S.  W 
26. 

9.  Especially  where  notified  of  the  death 
of  the  drawer  and  directed  not  to  make 
payment — Weiand's  Adm'r  v.  State  Nat. 
Bank,  23  Ky.  Law  Rep.  1517,  65  S.  W.  617 
66   S.  W.   26. 

10.  Western  Union  Tel.  Co.  v.  Bimetallic 
Bank    (Colo.  App.)    68  Pac.   115. 

11.  Payee  "Daley,"  indorsement  "Daily" 
— Western  Union  Tel.  Co.  v,  Bimetalli-  Bank 
(Colo.  App.)   68  Pac.  116. 

12.  Garthwaite  v.  Bank  of  Tulare,  134  Cal 
237,    66   Pac.   326. 


304 


BANKING  AND  FINANCE. 


tious  name,"  and  may  pay  on  a  forged  indorsement  if  the  person  who  receives 
the  money  is  the  one  whom  the  maker  believes  to  be  the  payee  named/*  but  where 
a  check  is  by  mistake  delivered  to  a  person  other  than  the  payee,  the  bank  can- 
not rely  on  such  fact  where  it  paid  on  an  indorsement  different  from  the  name 
of  the  payee  and  without  knowledge  of  the  error  in  delivery,  relying  on  the  in- 
dorsement.^^ The  maker  of  a  check  is  not  bound  to  so  prepare  it  that  it  can- 
not be  altered,^®  but  must  exercise  reasonable  care  to  detect  alteration  or  forgery 
by  the  comparison  of  his  vouchers  returned  with  the  record  of  checks  issued.^^ 
Where  checks  are  raised  by  an  employee  of  the  depositor,  the  depositor  is  charged 
with  knowledge  which  would  have  been  disclosed  by  a  comparison  of  the  checks 
with  the  stubs  of  the  check  book,  though  the  comparison  is  made  by  the  guilty 
emploj'Ce,^^  and  if  he  fail  to  examine  checks  returned,  the  bank  is  relieved  from 
responsibility  for  raised  checks  paid  after  the  account  was  balanced,  in  the  ab- 
sence of  negligence  on  its  part,^*  but  it  is  contributory  negligence  to  pay  a  plainly 
altered  check  preventing  the  bank  from  taking  advantage  of  the  depositor's  neg- 
ligence.^" Failure  to  verify  returned  vouchers  or  to  discover  and  notify  the  bank 
of  forgery  does  not  estop  the  depositor  from  claiming  forgery  though  he  may  be 
liable  for  the  damage  occasioned  thereby  to  the  bank.'^  Failure  to  examine  a 
statement  showing  an  application  of  deposits  and  notify  the  bank  within  reason- 
able time  of  a  misapplication  will  preclude  a  recovery.^-  One  who  has  received 
the  proceeds  of  a  check  or  allowed  the  proceeds  to  be  deposited  to  her  credit  can- 
not deny  that  the  check  was  signed  by  her  or  by  her  authority.*'  Where  two 
banks  both  pay  a  forged  check  without  discovering  the  forgery,  the  latter  bank 
rel5ang  on  the  indorsement  of  the  bank  first  paying,  may  on  discovery  of  the 
forgery,  recover  the  money  paid  the  first,  unless  a  change  has  taken  place  in  the 
remedies  available  to  the  parties." 

Checks  drawn  without  authority. — A  bank  is  not  liable  for  payment  in  good 


13.  In  this  case,  one  securing  a  loan  un- 
der false  representationa  as  to  his  name  took 
a  check  therefor  in  the  assumed  name,  in- 
dorsed it  as  such  and  in  his  real  name,  and 
secured  payment  thereon— Meyer  v,  Indiana 
Nat.  Bank,  27  Ind.  App.  354. 

14.  As  where  an  executor  on  the  faith 
of  letters  purporting  to  be  signed  by  a 
legatee  bought  a  draft  for  the  amount  of 
the  legacy  payable  to  the  legatee  and  for- 
warded it  to  his  address,  and  the  legatee 
being  in  tact  dead  the  writer  of  the  letters 
secured  the  draft  and  obtained  payment  by 
forgery  of  the  name  of  the  legatee — States 
V.  First  Nat.  Bank,  17  Pa.  Super.  Ct,  256. 
203   Pa.   69. 

15.  The  doctrine  that  where  two  persons 
are  equally  innocent  the  one  failing  to  act 
on  his  knowledge  must  bear  the  loss,  does 
not  apply  though  the  drawer  was  not  satis- 
fied that  he  had  delivered  the  check  to  the 
actual  payee  and  took  a  receipt  from  him — 
Western  Union  Tel.  Co.  v.  Bimetallic  Bank 
(Colo.   App.)    68    Pac.    115. 

16.  Failure  to  subsequently  discover  al- 
terations on  the  part  of  a  depositor  does 
not  relieve  the  bank's  liability  for  payment 
before  the  account  was  balanced — Critten  v. 
Chemical  Nat.  Bank.  171  N.  Y.  219.  57  L.  R. 
A.    529. 

17.  Critten  v.  Chemical  Nat.  Bank,  171 
N.   Y.    219.    57   L.   R.   A.    529. 

18.  Critten  v.  Chemical  Nat-  Bank.  171  N. 
Y.    219.    57    L.    R.    A.    529. 


19.  Critten  v.  Chemical  Nat.  Bank.  171  N. 
Y.   219.   57   L.   R.   A.   529. 

20.  Payment  of  a  check  apparently  alter- 
ed by  the  insertion  of  the  word  "cash"  in- 
stead of  the  name  of  the  payee  and  having 
the  amount  written  over  an  erasure — Crit- 
ten V.  Chemical  Nat.  Bank,  171  N.  Y.  219,  57 
L.   R.  A.    529. 

21.  Critten  v.  Chemical  Nat.  Bank,  171 
N.  Y.  219.  57  L.  R.  A.  529. 

23.  Where  plaintiffs  cashier  directed  an 
application  of  Its  deposit  to  his  individual 
debt,  and  a  statement  furnished  by  de- 
fendant was  examined  by  the  bookkeeper 
and  one  director  of  plaintiff,  and  the  director 
questioned  the  cashier  with  regard  thereto, 
receiving  unsatisfactory  answers,  and  on  the 
cashier's  disappearance  six  months  later  ac- 
tion was  brought  to  recover  a  depo.sit  wrong- 
fully applied — Iron  City  Nat.  Bank  v.  Fifth 
Nat.  Bank   (Tex.  Civ.  App.)   71  S.  W.   612. 

23.  Phoenix  Nat.  Bank  v.  Taylor.  23  Ky. 
Law  Rep.    2307.   67   S.   W.   27. 

24.  A  drawee  bank  paying  a  forged  check 
without  discovery  thereof,  relying  on  the 
indorsements  of  another  bank  which  has 
paid  the  amount  of  the  check  without  identi- 
fication of  the  person  or  inquiry,  may  recov- 
er the  amount  thereof  from  the  latter  bank 
on  discovery  of  the  forgery,  if  such  bank 
has  not  been  placed  in  a  worse  position  than 
it  would  have  been  had  the  drawee  bank  re- 
fused payment  on  the  first  presentation — 
Canadian  Bank  v.  Bingham,  30  Wash.  484, 
71  Pac.   43. 


§  b 


DEPOSITS    AND    REPAYMENT. 


305 


faith  of  checks  wrongfully  drawn  by  an  agent,  though  under  an  arrangement  to 
cash  checks  given  for  a  certain  purpose/^  and  it  is  not  bound  to  see  that  the 
checks  are  drawn  pursuant  to  the  agreement."®  Where  a  bank  is  given  signature 
cards  containing  the  names  of  the  president  and  treasurer  to  guide  it  in  repay- 
ment of  deposit  of  a  corporation,  it  cannot  pay  checks  signed  by  treasurer  alone;-' 
otherwise  if  the  signature  card  bear  only  the  name  of  the  treasurer.^^  It  is  neg- 
ligence for  a  bank  to  pay  an  unsigned  check  of  a  depositing  corporation  though 
to  its  bookkeeper,  and  no  estoppel  can  arise  because  the  corporation  has  failed  to 
warn  the  bank  of  the  forged  checks.^® 

Set-off  of  debts  due  lank  against  deposit. — Generally  a  bank  may  appropriate 
funds  on  deposit  to  a  debt  of  the  depositor  of  a  banlc.^°  Some  states  hold  that 
individual  deposits  may  be  set  off  against  a  firm  debt.^^  In  Louisiana,  it  is  held 
that  there  must  be  a  special  mandate  from  the  depositor  to  allow  the  deposit  to 
be  diverted  to  a  debt  of  the  bank.^^  ^  depositor  may,  after  insolvency  of  a  bank, 
have  his  deposit  set  off  against  notes  due  the  bank,  though  they  were  not  due  at 
the  time  of  suspension.^^  The  surety  cannot  insist  on  an  application  bv  the 
bank  of  a  depositor's  credit  balance  to  the  satisfaction  of  a  debt  due  it,  in  the 
absence  of  an  instruction  or  agreement  between  the  bank  and  the  depositor,  and 
where  the  debt  is  not  included  in  the  account  between  them,^* 

Deposits  received  after  insolvency. — A  petition  alleging  that  a  deposit  was 
made  when  the  bank  was  insolvent  and  known  to  be  such  by  its  president  suflS- 
ciently  shows  fraud  where  an  order  is  sought  requiring  the  receiver  to  pay  over 
the  deposit.^^  Such  a  petition  must  offer  to  return  a  certificate  of  deposit  received 
therefor.^®  It  is  sufficient  prima  facie  to  prove  receipt  of  deposits  during  in- 
solvency and  one  day  before  suspension.'^ 

Special  deposits. — A  deposit  evidenced  by  a  certificate  payable  in  current 
funds  is  general  and  on  insolvency  the  depositor  will  be  regarded  as  a  general 
creditor.^^  A  deposit  of  funds  of  an  estate  knowingly  received  is  speeial.^^  A 
deposit  by  a  tenant  to  secure  a  landlord  in  the  performance  of  a  lease  is  special 
and  must  be  kept  intact  for  the  purposes  named.*"  Trust  funds  remain  such 
though  deposited  by  the  trustee  in  his  own  name.*^  They  cannot  be  appropriated 
to  the  individual  debt  of  the  trustee  to  the  bank  and  a  bank  is  liable  for  such 
*2     Where   a  trust  fund   deposited    is   appropriated   to   the  customer's 


conversion.' 


25.  The  negligence  Is  that  of  the  prin- 
cipal who  by  his  selection  of  agent  has  made 
the  loss  possible — Armour  v.  Greene  County 
State  Bank,  112  Fed.  631,  50  C.  C.  A.  399. 
Where  the  arrangement  is  to  pay  checks 
drawn  by  a  purchasing  agent  in  payment 
of  goods,  the  principal  is  bound  to  notify 
the  bank  on  receipt  of  the  first  check  bear- 
ing Irregular  and  fictitious  indorsements 
and  until  the  receipt  of  such  notice,  the  bank 
is  not  negligent  In  paying  such  checks — Ar- 
mour V.  Greene  County  State  Bank,  112  Fed. 
631.  50  C.  C.  A.  399. 

26.  Armour  v.  Greene  County  State  Bank, 
112   Fed.   631,   50  C.  C.  A.   399. 

27.  Shoe  Lasting  Mach.  Co.  v.  Western 
Nat.   Bank,   70  App.  Div.    (N.   Y.)    588. 

28.  Shoe  Lasting  Mach.  Co.  v.  Western 
Nat.  Bank,   70  App.  Div.   (N.  Y.)    588. 

29.  Kenneth  Inv.  Co.  v.  Nat.  Bank  of  Re- 
public,  96   Mo.   App.   125. 

30.  Globe  Sav.  Bank  v.  Nat.  Bank  of  Com- 
merce   (Neb.)    89    N.   W.   1030. 

81.  Owsley  v.  Bank  of  Cumberland,  23 
Ky.  Law  Rep.  1726,  66  S.  W.  33. 


32.  Succession   of  Gragard,    106   La.    298. 

33.  Thompson  v.  Union  Trust  Co.  (Mich.) 
9  Detroit  Leg.  N.  101,  90  N.  W.  294. 

34.  Camp  V.  First  Nat.  Bank  (Fla.)  33 
So.    241. 

35.  Rev.  St.  1898.  §  4541— Hyland  v.  Roe, 
111    Wis.    361. 

36.  Hyland  v.  Roe,  111  Wis.  361. 

37.  Jernberg  v.  Mix,  100  111.  App.   264. 

38.  Woodhouse  v.  Crandall,  99  111.  App. 
552. 

3».     Officer  V.  Officer   (Iowa)   90  N.  W.   826. 

40.  Receipt  Issued  stated  that  the  bank 
was  to  pay  the  landlord  damages  sustained 
through  the  tenant's  default  and  was  to  hold 
the  whole  sum  to  the  credit  of  the  landlord 
after  expiration  of  a  certain  time  and  on 
the  conditions  of  the  lease — Woodhouse  v. 
Crandall,   197  111.   104. 

41.  Union  Stock  Yards  Bank  v.  Haskell 
(Neb.)   90  N.  W.   233. 

42.  Nehawka  Bank  v.  Ingersoll  (Neb.)  89 
N.   W.    618. 


Cur.  Law — 20. 


306 


BANKING   AND   FINANCE. 


§6 


debt,  the  bank,  if  it  has  knowledge,  is  liable  for  a  conversion.*^  Where  a  bank  per- 
mits a  deposit  for  a  specific  purpose  in  the  account  of  a  third  person,  it  is  liable 
if  it  allow  a  withdrawal  of  the  deposit  for  other  than  the  specified  purpose  by  the 
person  in  whose  name  it  stands.**  Deposits  made  subsequent  to  an  agreement 
that  the}  should  be  applied  to  a  note  cannot  be  claimed  as  subject  to  check,  though 
made  when  the  note  was  not  yet  due.*^  Trust  funds  received  with  notice  may 
be  followed  on  insolvency,  though  mingled  with  other  funds,  if  they  may  be 
identified  or  have  swelled  the  banlc's  funds.*^  A  check  payable  to  the  order  of 
the  bank  does  not  sufficiently  show  that  it  received  the  funds  represented  thereby.*^ 
Where  a  deposit  is  made  by  the  purchaser  of  a  firm's  goods  to  be  divided  among 
several  creditors  of  the  firm,  as  their  interest  might  appear,  the  bank  cannot  after 
involuntary  bankruptcy  of  the  firm  apply  the  deposit  to  notes  of  the  firm  held  by 
it  without  the  consent  of  the  depositor  or  the  bankrupts.*^ 

Slander  of  credit  or  damages  for  failure  to  pay  checls. — Parol  demand  will 
not  support  an  action  for  slander  of  credit,*^  but  a  petition  which  states  the  ex- 
istence of  a  deposit  in  defendant  bank  and  a  refusal  to  hvinor  a  check  and  repay 
a  deposit  on  demand  states  a  cause  of  action.^"  Plaintiff's  insolvency  at  commence- 
ment of  a  suit  for  damages  based  on  a  refusal  to  honor  checks  is  immaterial,^^ 
and  it  cannot  be  shown  that  a  third  person  offered  to  buy  plaintiff's  claim."  In  an 
action  for  the  wrongful  refusal  to  honor  a  check,  recovery  may  be  had  for  the  time 
lost,  expenses  incurred,  or  for  any  loss  of  credit,  business,  etc.,  but  an  allowance 
cannot  be  made  for  humiliation  or  mortification  of  feelings.^'  Where  the  bank  has 
funds  to  meet  a  check,  the  payee  has  a  right  of  action  thereon."  A  bank  may  make 
a  valid  agreement  to  honor  checks  for  the  purchase  of  goods  to  be  secured  by  a  draft 
and  bill  of  lading  on  the  goods  when  shipped,  and  where  it  has  received  sufficient 
funds  on  the  draft  is  liable  for  payment  of  the  checks,  though  the  drawers  are  already 
indebted  to  the  bank  on  other  transactions.^^ 

Actions  to  recover  deposits.  Parties. — Where  an  alleged  donee  sues  to  recover 
a  deposit  in  a  savings  bank,  the  administrator  of  the  depositor  may  be  made  a 
party  without  showing  that  the  administrator's  claim  is  well  founded.^^ 

'Demand  is  sufficiently  established  by  plaintiff's  evidence  if  not  contradicted." 
One  to  whose  credit  money  is  deposited  need  not  present  a  receipt  or  check  as  preced- 
ent to  an  action  to  recover  an  amount  not  received  because  of  mistake  in  settle- 
ment.'* Deposits  are  properly  demanded  after  receivership  by  drawing  a  check  on 
the  bank  and  demanding  payment  of  the  receiver.^*  See  note  as  to  sufficiency  of  peti- 
tion.^" 


43.  Globe  Sav.  Bank  v.  Nat.  Bank  of 
Commerce    (Neb.)    89   N.   W.   1030. 

44.  Deposit  by  son  in  his  father's  account 
to  pay  son's  note,  withdrawal  by  the  father 
before  the  note  is  presented  but  after  its 
maturity — Weitzel  v.  Traders'  Xat.  Bank,  IS 
Pa.   Super.   Ct.   615. 

45.  Roe  V.  Bank  of  Versailles,  167  Mo. 
406. 

46.  Officer  V.  Officer   (Iowa)   90  N.  W.  826. 

47.  Action  for  the  conversion  of  bonds. 
Check  represented  the  amount  borrowed  on 
them  as  collateral  and  the  officer  in  whose 
charg-e  the  bonds  were  testified  that  no  part 
of  the  proceeds  of  the  check  went  to  the 
bank.  The  indorsement  was  such  as  would 
appear  on  the  check  in  the  natural  course 
of  business — Griffin  v.  Mechanics'  &  Traders' 
Bank,   61  App.  Div.   (N.  T.)    434. 

48.  In  re  Davis,  119  Fed.   950. 

49.  Hanna  v.  Drovers'  Nat.  Bank,  194  111. 
262. 


50.  Kloepfer  v.   First  Nat.   Bank,   65   Kan. 

774,  70  Pac.  8S0. 

51.  Hence  a  motion  by  defendant  requir- 
ing plaintiff  to  give  security  for  costs  can- 
not be  introduced — Roe  v.  Bank  of  Versailles, 
167   Mo.    406. 

52.  Roe  V.  Bank  of  Versailles,  167  Mo. 
406. 

53.  American  Nat.  Bank  v.  Morey,  24  Ky. 
Law  Rep.  658.  69  S.  "W".  759. 

54.  Falls  City  State  Bank  v.  "Wehrlle 
(Neb.)    93  N.   W.   994. 

55.  Evidence  held  sufficient  to  show  an 
agreement  to  honor  checks  given  in  pay- 
ment of  the  purchase  of  goods — Falls  City 
State  Bank  v.'V^'ehrlie  (Neb.)  93  N.  W.  994. 

56.  Banking  L.  §  115;  L.  1882,  c.  409.  §  259; 
L,.  1892,  c.  689 — McGuire  v.  Auburn  Sav, 
Bank,    78   App.    Div.    (N.    Y.)    22. 

57.  Cole  V.  Charles  City  Nat.  Bank,  114 
Iowa,    632. 


§  6 


DEPOSITS    AND   REPAYMENT. 


307 


Defenses. — Payment  of  checks  drawn  by  a  trustee  on  a  trust  fund  in  reliance 
on  his  apparent  title  and  in  good  faith,  to  be  availed  of  as  a  defense,  must  be  pleaded 
in  an  action  for  trust  funds  deposited  to  the  trustee's  own  account.®^  Instructions 
in  actions  to  recover  deposits  should  be  applicable  to  the  evidence.®^  In  an  action 
to  recover  deposits  where  plaintiff  denies  that  check  was  signed  by  her  or  by  her  au- 
thority, the  jury  should  not  by  instruction  be  instructed  that  they  must  find  thaU 
plaintiff  herself  signed  the  check  before  they  can  find  for  defendant.^^  Plainti3''s 
negligence  in  not  discovering  a  mistake  in  settlement  is  for  the  jury.®*  Plaintiff 
may  recover  interest  from  the  date  of  the  institution  of  his  suit.®^ 

Notes  payable  at  banJc. — Where  there  has  been  a  direction  to  apply  deposits  to 
the  payment  of  a  note  though  it  is  not  due,  an  action  cannot  be  maintained  for 
failure  to  honor  subsequent  checks  where  the  maker  has  not  money  on  deposit  in 
excess  of  the  amount  of  the  note.®®  Authority  to  credit  a  draft  to  the  payment 
of  a  certain  note  does  not  authorize  a  cashier  to  credit  the  account  of  the  payee 
of  the  note  when  the  note  is  beyond  his  control  and  cannot  be  indorsed  with  the 
payment.®^ 

Certifications. — Certification  is  equivalent  to  acceptance,  may  be  by  any  nat- 
ural or  artificial  person  on  whom  the  check  is  drawn,  and  thereafter  laches  in  mak- 
ing demand  of  payment  cannot  be  imputed  to  the  holder.®^  After  certification  of  a 
check  a  bank  is  estopped  to  deny  the  possession  of  funds  to  pay  the  same.®*  Where 
on  the  same  day  that  a  note  is  certified,  the  certifying  bank  informs  the  bank 
holding  it  that  the  certification  was  by  mistake,  but  the  note  is  nevertheless  sent 
through  the  clearing  house,  an  action  by  the  certifying  bank  to  recover  from  the 
second  bank  may  be  maintained  without  an  application  for  a  re-settlement  of  ac- 
counts at  the  clearing  house.'"  Sufficiencv  of  evidence  of  fraud  in  withholding 
presentation  of  a  certified  check.''^  A  bank's  liability  on  negligent  certification  of 
a  raised  draft  may  rest  on  estoppel  rather  than  on  the  certification.'^  After  negli- 
gent certification  of  a  raised  draft  which  another  bank  pays  when  deposited  with  it. 
the  first  bank  cannot  recover  the  amount  paid  as  money  paid  by  mistake."  The 
question  of  good  faith  in  paying  a  raised  draft  which  has  been  certified  by  another 
bank  and  sent  through  the  clearing  house  is  one  for  the  jury.'* 


58.  Cole  V.  Charles  City  Nat.  Bank,  114 
Iowa,   632. 

59.  Wylie  V.  Commercial  &  Farmers'  Bank, 
63  S.  C.  406. 

60.  A  petition  is  sufRcient  which  states 
that  the  plaintiff  having  executed  a  note  to 
defendant  bank,  credit  for  the  amount  there- 
of was  entere,d  on  a  page  in  his  pass  book 
which  had  been  fully  settled  and  balanced, 
that  a  subsequent  deposit  by  a  third  per- 
son without  plaintiff's  knowledge  to  plain- 
tiff's credit  of  an  equal  sum  was  entered 
in  the  proper  place,  that  plaintiff  was  in- 
formed that  such  deposit  had  not  been  made 
and  was  not  given  credit  for  one  of  the 
sums — Cole  v.  Charles  City  Nat.  Bank,  114 
Iowa,    632. 

61.  Union  Stock  Tards  Bank  v.  Haskell 
(Neb.)    90  N.  W.    233. 

62.  In  an  action  to  recover  a  deposit 
made  by  plaintiff  bank  and  applied  by  It  to 
a  loan  made  to  plaintiff's  cashier,  there  was 
no  evidence  that  there  was  any  understand- 
ing between  the  cashier  and  any  of  defend- 
ant's officers  when  the  deposit  was  made 
that  it  should  be  so  applied.  Held,  that 
an  instruction  as  to  the  effect  of  such  in- 
tention or  understanding  should  not  be  giv- 
en— Iron  City  Nat.  Bank  v.  Fifth  Nat.  Bank 
(Tex.  Civ.  App.)    71   S.    W.   612. 


C3.  Phoenix  Nat.  Bank  v.  Taylor  23  Ky 
Law  Rep.   2307.   67   S.   W.   27. 

64.  Cole  V.  Charles  City  Nat.  Bank.  114 
Iowa,    632. 

65.  Bobb  V.  Sav.  Bank  of  Louisville  23 
Ky.  Law  Rep.  817,   64  S.  W.   494. 

66.  Roe  V.  Bank  of  Versailles.  167  Mo. 
406. 

67.  Kunze  v.  Tawas  State  Sav.  Bank 
(Mich.)   9  Detroit  Leg.  N.  211,  90  N.  W.  66S. 

68.  Muth  V.  St.  Louis  Trust  Co.,  88  Mo. 
App.    596. 

69.  Jackson  Paper  Mfg.  Co.  v.  Commer- 
cial Nat.  Bank,  199  111.  151. 

70.  Construing  Const.  N. 
House — Mt.  Morris  Bank  v. 
Ward   Bank,   172   N.   Y.   244. 

71.  Muth  v.  St.  Louis  Trust  Co.,  94  Mo. 
App.    94. 

72.  As  where  a  bank  pays  another  bank 
in  which  a  raised  draft,  negligently  certified 
by  it,  has  been  deposited,  and  the  latter  bank, 
relying  thereon,  pays  the  deposit — Con- 
tinental Nat.  Bank  v.  Tradesmen's  Nat.  Bank 
173    N.   T.    272. 

73.  Continental  Nat.  Bank  v.  Tradesmen's 
Nat.  Bank,   173  N.  Y.   272. 

74.  To  be  determined  on  the  clearing-house 
rules,     and     the    evidence — Continental    Nat. 


Y.      Clearing 
Twenty-third 


308 


BANKING  AND   FINANCE. 


§8 


§  7.  Loans  and  discounts. — A  bank  has  power  to  loan  deposits  for  its  custom- 
ers unless  its  charter  prohibits  it."  A  bank  authorized  to  loan  a  deposit  for  a 
depositor  is  bound  only  to  the  exercise  of  good  faith  and  reasonable  diligence,  but 
if  it  loan  without  authority,  is  absolutely  responsible.'**  A  loan  evidenced  by 
the  books  of  a  bank  will  be  presumed  to  have  been  with  the  bank's  knowledge  of 
its  essential  features  and  with  its  approval,  if  there  is  no  evidence  to  the  contrary." 
A  bank  in  discounting  a  negotiable  note  is  not  bound  to  the  exercise  of  care  in  the 
ascertainment  of  defenses.^^  The  validity  of  notes  discounted  by  a  bank's  cashier 
in  excess  of  the  amount  which  a  national  bank  may  legally  loan  one  person  is  not 
affected  by  the  fact  that  the  cashier  was  prosecuted  and  punished  for  misapplying 
tlie  bank  funds,  and  the  maker  of  the  note  for  aiding  and  assisting  him,  and  that 
the  amount  of  the  penalty  of  the  cashier's  bond  had  been  recovered  by  the  receiver.''® 

Advances  against  bills  of  lading.^'^ — A  bank  which  advances  money  to  an  agent 
for  the  purchase  of  property  for  a  firm  and  accepts  a  draft  on  the  firm  attached 
to  a  bill  of  lading  on  the  property,  which  is  shipped  in  the  firm  name,  is  entitled 
to  it  as  against  an  attachment  against  the  agent,  no  fraud  being  shown,  and  it  does 
not  release  its  lien  by  obtaining  a  guaranty  of  payment  of  the  draft  from  the  con- 
signee." On  sale  of  property  consigned,  with  notice  that  a  draft  has  been  drawn 
against  it,  the  brokers  are  liable  to  the  holder  of  the  draft  for  the  net  amount  real- 
ized from  the  sale  after  the  charges  have  been  deducted.^^ 

§  8.  Collections. — Bankers  are  liable  for  failure  to  exercise  due  diligence  in 
the  collection  of  notes  which  they  have  undertaken.®^  They  are  not  liable  for  neg- 
ligence of  a  correspondent  unless  negligent  in  its  selection.®*  A  check  should  not 
be  sent  to  the  drawee  bank.®*  It  is  negligence  to  send  a  second  note  to  a  corres- 
pondent, where  a  note  previously  sent  has  not  been  reported  on  at  maturity,  without 
making  inquiry  as  to  such  note,  or  to  fail  to  make  inquiry  concerning  the  former 
notes  until  after  several  weeks  from  their  maturity,  during  a  period  of  financial 
disturbance."  Where  a  draft  indorsed  for  deposit  is  transmitted  for  collection 
the  collecting  bank  becomes  the  agent  of  the  receiving  bank  and  cannot  be  held 
liable  by  the  depositor  for  delay  in  presentation.®^  It  will  be  presumed  that  the 
drafts  were  forwarded  for  collection  in  the  same  manner  as  in  a  prior  course  of 


Bank   v.    Tradesmen's   Nat.   Bank,    173   N.   Y. 
272. 

75.  Bobb  V.  Sav.  Bank  of  Louisville,  23 
Ky.  Law  Rep.   817,  64  S.  W.   494. 

76.  Watson   v.    Fagner,    99   111.   App.    364. 

77.  Roe  V.  Bank  of  Versailles,  167  Mo. 
406. 

78.  A  bank  is  not  charged  with  notice  that 
a  partnership  signs  merely  as  surety,  by 
the  fact  that  the  firm  name  is  signed  under 
the  name  of  a  partner — Warren  Deposit  Bank 
V.  Younglove,  23  Ky.  Law  Rep.  1969.  66  S. 
W.    749. 

79.  In  re   Edson,   119   Fed.   487. 

80.  Stock  purchased  under  an  agreement 
by  which  the  bank  advances  the  money, 
making  a  charge  of  $2  a  car  and  taking  the 
bills  of  lading  therefor  with  drafts  attached, 
becomes  the  property  of  the  buyer  and  not 
of  the  bank — Clary  v.  Tyson  (Mo.  App.)  71 
S.  W.   710. 

81.  Shaffer  v.   Rhynders,   116   Iowa,   472. 

82.  Defendants  promised  to  honor  a  draft 
for  cattle  to  a  certain  amount  if  two  cars 
were  consigned  them.  Plaintiff  discounted 
the  draft  with  knowledge  that  but  one  car 
was  consigned  to  defendant.  On  sale  of 
such  car  by  defendant,  they  received  the  net 


sum  over  and  above  the  charges  less  than 
the  draft,  though  the  gross  sum  w^as  in 
excess  thereof,  and  it  was  held  on  their  re- 
fusal to  pay  anything  on  the  draft  that  they 
were  liable  for  the  net  amount  received — 
First  State  Bank  v.  Thuet  (Minn.)  93  N.  W.  1. 

83.  A  petition  which  states  the  undertak- 
ing to  collect,  failure  to  exercise  diligence, 
and  damage  to  plaintiff,  is  sufficient — Cole- 
man V.  Spearman,  etc.,  Co.  (Neb.)  93  N.  W. 
983. 

84.  Second  Nat.  Bank  v.  Merchants'  Nat. 
Bank,  23  Ky.  Law  Rep.  1255,  65  S.  W.  4,  55 
L.  R.  A.  273.  It  seems  that  it  is  not  neg- 
ligence to  send  notes  of  a  corporation  for 
collection  to  a  bank,  of  which  the  secretary 
and  treasurer  of  the  corporation  is  cashier — 
Second  Nat.  Bank  v.  Merchants'  Nat.  Bank. 
23  Ky.  Law  Rep.  1255,  65  S.  W.  4.  55  L.  R. 
A.    2'73. 

85.  Carson,  etc.,  Co.  v.  Fincher  (Mich.)  8 
Detroit  Leg.  N.  1108.  89  N.  W.  570. 

86.  Second  Nat.  Bank  v.  Merchants'  Nat. 
Bank,  23  Ky.  Law  Rep.  1255,  65  S.  W.  4,  55 
L.    R.   A.    273. 

87.  Morris  v.  First  Nat.  Bank,  201  Pa. 
160. 


^   3  COLLECTIONS.  309 

business.**  A  bank  which  is  the  collecting  agent  of  another  does  not  cease  to  be 
such  because  drafts  drawn  on  it  are  forwarded  it  for  collection.*®  ..Where  the  col- 
lecting bank  gives  credit  for  the  proceeds  and  holds  them  for  some  time  they  will 
not  be  regarded  as  trust  funds.^°  An  agreement  for  a  prompt  transmittal  of  the 
proceeds  of  collections  will  be  interpreted  by  the  understanding  of  the  parties  as 
evidenced  by  the  usage  and  course  of  business."^  \Yhere  a  bank  presents  checks 
of  its  depositors  to  a  trust  company  on  which  they  are  drawn,  and  accepts  the  check 
of  the  trust  company  in  payment,  the  liability  to  its  depositors  becomes  fixed,  and 
the  checks  presented  cannot  be  recovered  from  the  assignee  for  creditors  of  the  trust 
company.®^  Where  a  bank  having  made  a  collection  and  drawn  a  draft  on  an- 
other bank  for  the  purpose  of  transmitting  the  proceeds  thereof  fails,  the  person 
for  whom  the  collection  is  made  has  no  right  to  reach  the  proceeds  of  the  collec- 
tion as  a  trust  fund,  payment  of  the  draft  having  been  refused  by  the  bank  on 
which  it  was  drawn.^^  Where  the  holder  of  a  note  delivers  it  for  collection,  the  bank 
r.iav  properly  pay  the  proceeds  over  to  him  in  the  absence  of  actual  notice  that 
they  belong  to  a  third  person,  notwithstanding  the  note  has  been  assigned.®*  The 
collecting  bank  may  apply  the  proceeds  of  a  draft  to  the  overdrawn  account  of  the 
transmitting  bank,  though  the  transmitting  bank  has  suspended  payment,  if  the 
collecting  bank  has  no  knowledge  of  such  fact  or  notice  that  the  draft  which  is  in- 
dorsed in  blank  was  held  by  the  transmitting  bank  merely  for  collection  and  not  as 
owner.®'  Where  the  transmitting  bank  becomes  insolvent  before  the  presentation 
of  a  draft  for  payment  by  the  correspondent  bank,  the  drawee  of  the  draft  may 
recover  the  proceeds  of  collection  from  the  correspondent,  the  amount  not  being 
credited  by  the  receiving  bank  or  credited  by  the  correspondent  to  the  receiving 
bank  until  after  payment,  when  the  correspondent  credited  the  receiving  bank's  ac- 
count, it  having  no  notice  of  its  insolvency.®® 

Duty  to  preserve  rights  of  parties. — A  bank's  duty  with  regard  to  paper  de- 
livered it  for  collection  is  to  forward  it  and  make  a  proper  demand  of  payment 
and  on  nonpayment  to  take  the  proper  steps  to  charge  the  indorser.®^  The  collect- 
ing bank  is  bound  to  use  reasonable  care  and  diligence  to  protect  the  rights  of  the 
forwarding  bank  in  respect  to  the  liability  of  the  indorser  and  drawer  of  the  check 
forwarded  for  collection,  and  its  failure  to  do  so  relieves  the  forwarding  bank  from 
liability  after  the  collecting  bank  has  paid  it.®*     An  instruction  to  protest  requires 

88.     As  where  a   bank  sends  drafts   to  an-    charged    to    his    account    and    a    draft    issued 


other  bank  having  a  correspondent  at  the 
place  of  payment.  It  will  be  presumed  that 
the  drafts  so  forwarded  were  sent  and  re- 
ceived for  collection,  such  having  been  a 
former  course  of  business — National  Revere 
Bank  V.  Nat.  Bank  of  Republic.  172  N.  Y. 
102. 

89.     National  Revere  Bank  v.  Nat.  Bank  of 


on  another  bank  and  mailed  to  plaintiff — 
Peters  Shoe  Co.  v.  Murray  (Tex.  Civ.  App.) 
71   S.   W.   977. 

94.  Bank    of    Laddonla    v.    Friar,    88    Mo. 
App.   39. 

95.  American  Exch.  Nat.  Bank  v.  Theumm- 
ler.    195    111.    90. 

96.  Nash    v.    Second    Nat.    Bank,    67    N.    J. 


Republic.    172    N.    Y.    102.  i  Law.    265. 

90.  Where  it  was  a  business  custom  to  I  97.  A  bank  to  which  drafts  are  transmlt- 
glve  an  agent  transmitting  notes  of  a  cor-  \  ted  by  another  in  the  ordinary  course  of 
poratlon  for  collection,  credit  for  the  pro-  j  business  and  which  mails  them  to  Its  cor- 
ceeds  and  sometimes  to  retain  the  proceeds  respondent  undertakes  the  duty  of  collect- 
for  tw^o  months  before  remitting,  the  cor-  j  Ing  them  and  paying  over  the  proceeds  or 
poratlon  Is  an  ordinary  creditor — McCor-  j  returning  them  with  the  liability  of  the 
mick  Harvesting  Mach.  Co.  v.  Yankton  Sav.  I  parties  unimpaired  In  case  they  are  not 
Bank,    15    S.    D.    196.  i  paid,     there    being    no    special    agreement — 

91.  McCormick  Harvesting  Mach.  Co.  v.  I  National  Revere  Bank  v.  Nat.  Bank  of  Re- 
Yankton  Sav.   Bank,   15   S.   D.   196.  I  public.    172   N.   Y.    102.     A    b-^nk   is   liable    for 

92.  Farmers'  &  Mech.  Nat.  Bank  v.  Cuy-  I  failure  to  demand  payment  or  protest  for 
ler,  18  Pa.  Super.  Ct.  434.  non-payment  'a    note    held    by    It    for    collec- 


93.  A  draft  was  sent  for  collection,  which, 
when  presented  by  the  receiving  bank,  was 
paid  by  check  on  such  bank,  the  drawee 
having  money  on  deposit  sufficient  to  meet 
such    check,    and    the    amount    thereof    was 


tlon  on  which  It  is  liable  as  indorser — Louis- 
ville Banking  Co.  v.  Asher,  23  Ky.  Law  Rep. 
1180,    65  S.   W.   133. 

98.     Ft.    Dearborn    Nat.    Bank   v.    Security 
Bank,    87   Minn.   81. 


310 


BANKING  AND  FINANCE. 


§9 


the  taking  of  necessary  steps  to  bind  indorsers,**  but  the  bank  need  not  see  that  a 
notary  performs  his  duty  as  to  notice  of  dishonor.^  Where  a  receiving  bank  cashes 
a  check  and  forwards  it  for  collection  and  tlie  drawer  is  discharged  by  failure  of  the 
collecting  bank  to  protest,  the  receiving  bank  is  damaged  prima  facie  to  the  amount 
of  the  check,  but  the  damages  may  be  reduced  by  showing  the  insolvency  of  the  per- 
sons discharged  from  liability.^  Where  the  collecting  bank  fails  to  properly  charge 
an  indorser,  the  presumption  is  that  the  indorser  was  solvent.^ 

Drafts  with  bill  of  lading  attached. — The  collecting  bank  is  not  liable  for  de- 
fects in  the  goods  against  which  the  drafts  were  drawn,*  or  for  the  drawer's  fail- 
ure to  pay  freight  as  agreed  on  and  as  shown  by  the  invoice  attached  to  the  draft.'^ 
Xegligence  of  the  bank  with  regard  to  delivery  of  the  goods  may  be  waived.®  The 
indorsement  on  a  draft  attached  to  a  bill  of  lading  may  be  sufficient  to  charge  the 
drawee  with  notice  that  it  is  held  for  collection  only.^ 

Actions.^ — Where  collections  are  sought  to  be  held  as  a  trust  fund  against  a  re- 
ceiver, it  may  be  shown  that  certain  preferred  creditors  of  the  bank  have  recovered 
judgments  entitling  them  to  share  pro  rata  in  the  funds  on  hand  at  the  time  of 
the  insolvency.®  Sufficiency  of  petition  as  identifying  funds  sought  to  be  recovered 
after  insolvency  as  proceeds  of  collection." 

§  9.  Offenses  against  banking  laws;  penalties.  Receipt  of  deposits  when  in- 
solvent.— Penal  statutes  punishing  receipt  of  deposits  when  insolvent  do  not  apply 
to  private  bankers."  A  corporation  may  be  a  de  facto  corporation  if  at  the  time 
of  an  indictment  for  receiving  deposits  after  insolvency,  there  is  a  statute  permit- 
ting its  organization,  though  at  the  time  of  the  attempted  organization  there  was  no 
>uch  statute.^^  Insolvency  means  an  inability  to  pay  depositors  as  banks  usually 
do  and  to  meet  liabilities  becoming  due  in  the  ordinary  course  of  business.*'  An 
intent  to  injure  and  defraud  the  bank  must  be  charged  in  the  indictment  and 
proved  in  proceedings  under  Rev.  St.  §  5209." 

Evidence.^^ — That  a  transaction  charged  to  be  embezzlement  by  a  bank  officer 


90.  Note  forwarded  for  collection — "Wil- 
liams V.  Parks.  63  Nebi  747. 

1.  Since  such  is  to  be  regarded  as  an  offi- 
cial act  of  the  notary — Williams  v.  Parks, 
63  Neb.  747. 

a.  Ft.  Dearborn  Nat.  Bank  v.  Security 
Bank.    87    Minn.    81. 

3.  National  Revere  Bank  v.  Nat.  Bank  of 
Republic.   172   N.   Y.   102. 

4.  Commerce  Mill.  &  Grain  Co.  v.  Morris. 
27  Tex.  Civ.  App.  553;  Gregory  v.  Sturgls 
Nat.   Bank    (Tex.   Civ.   App.)    71   S.   W.    66. 

5.  Gregory  v.  Sturgis  Nat.  Bank  (Tex. 
Civ.  App.)   71   S.  W.   66. 

6.  Where  a  draft  with  bill  of  lading  at- 
tached is  forwarded  for  collection  with  in- 
structions to  allow  ten  days  to  the  drawee 
for  examination  of  the  goods,  the  drawer 
waives  any  negligence  of  the  bank  in  de- 
livering the  goods  for  examination  without 
requiring  payment  of  the  draft  by  writing 
the  drawee  to  pay  the  draft  at  once,  when 
they  are  notified  by  the  bank  of  the  drawee's 
refusal  after  the  expiration  of  ten  days  to 
pay  the  draft  or  return  the  goods  and  are 
requested  to  give  further  Instructions- 
Flood  v.  First  Nat.  Bank.  24  Ky.  Law  Rep. 
661.   69  S.  W.  750. 

7.  "Pay  to  the  order  of  American  Nat. 
Bank."  indorsed  by  the  American  Nat.  Bank. 
"Pay  any  bank  or  banker  or  order  American 
Nat.  Bank" — Gregory  v.  Sturgis  Nat.  Bank 
(Tex.   Civ.   App.)    71   S.    W.   66. 

8.  See    as    to    sufficiency    of    evidence    to 


show  partnership  ownership  of  a  draft  drawn 
to  the  order  of  one  partner  and  Indorsed 
by  him  individually  for  deposit — Morris  v. 
First  Nat.  Bank.  201  Pa.  160.  See  as  to 
sufficiency  of  pleading  to  raise  the  issue  as 
to  forwarding  bank's  negligence  in  failing 
to  inquire  concerning  a  cause  of  delay  and 
notify  the  owner  of  the  notes  thereof — Sec- 
ond Nat.  Bank  v.  Merchants'  Nat.  Bank.  23 
Ky.  Law  Rep.  1255.  65  S.  W.  4.  55  L.  R.  A. 
273. 

0.  McCormlck  Harvesting  Mach.  Co.  v. 
Yankton    Sav.    Bank.    15   S.    D.    196. 

10.  It  Is  sufficient  to  state  the  deposit  of 
a  check  the  day  before  the  appointment  of 
a  receiver,  the  bank's  officers  having  knowl- 
edge of  its  insolvency,   and   that  the  drawee 

I  held  a  portion  of  the  check  for  a  time  after 
the  receivership  before  it  was  paid  over — 
Hyland   v.   Roe.    Ill   Wis.   361. 

11.  Penal  Code.  §§  601.  609 — Hall  v.  Baker. 
66    App.    Div.    (N.    Y.)    131. 

12.  State  V.  Stevens   (S.  D.)   92  N.  W.  420. 

13.  Comp.  Laws.  §  6850 — State  v.  Stevens 
(S.   D.)    92   N.   W.    420. 

14.  A  refusal  to  instruct  as  to  necessity 
of  finding  such  Intent  is  error,  though  the 
instructions  define  embezzlement  as  fraudu- 
lent appropriation  by  defendant  of  the  funds 
of  the  bank  to  his  own  use — McKnight  v.  U. 
S.,  Ill  Fed.  735.  49  C.  C.  A.  594. 

15.  Sufficiency  of  showing  of  knowledge 
of  affairs  of  bank  on  prosecution  under  Starr 
&  C.   Ann.  St.  c.  38.  §  168 — Paulsen  v.  People, 


BANKRUPTCY. 


311 


was  without  the  knowledge  or  consent  of  the  directors  or  discount  committee  need 
not  be  proved  specifically,  if  the  transaction  which  the  evidence  tended  to  show 
was  one  to  which  it  would  not  be  presumed  the  directors  or  committee  would  con- 
sent.^® In  a  prosecution  under  Eev.  St.  §  5209,  against  a  national  bank  officer  or 
clerk  for  embezzlement  or  making  of  false  entries  with  intent  to  injure  or  defraud 
the  bank  or  to  deceive,  the  burden  of  rebutting  intent  is  placed  on  defendant  after 
proof  of  acts  charged,  and  he  must  satisfy  the  jury  beyond  a  reasonable  doubt  that 
there  was  no  guilty  intent  in  the  transaction.^^ 

Where  the  charge  is  embezzlement  in  causing  a  bank's  money  to  be  paid  to 
persons  known  to  be  insolvent  for  the  purpose  of  bribery  and  with  intent  to  defraud 
the  bank,  the  persons  having  executed  a  note  to  the  bank,  the  instructions  should 
not  ignore  the  question  of  the  insolvency  of  the  persons  to  whom  the  loan  is  made.^* 

BANKRUPTCY. 


§  1.     Validity  of  Act. 

§  2.     Supercession    of    State   LaTrs. 

§  3.  Occasion  for  Proceeding:  and  Acts  of 
Bankruptcy. — A.  General  Assignment.  B. 
Insolvency.  C.  Transfer  of  Property  in 
Fraud  of  Creditors.  D.  Preferential  Trans- 
fer of  Property. 

§  4.  Persons  Who  May  be  Adjudged  Bank- 
rupt and  Who  May  Petition. 

§  ."».  Procedure  for  Adjudication. — A.  In- 
voluntary.    B.  Voluntary. 

§  6.  Conflict  Between  Voluntary  and  In- 
voluntary  Proceedings. 

§  7.  Protection  and  Possession  of  the 
Property  Pending  Appointment  of  Trustee; 
Receiver. 

§  8.  Creditors'  Meeting- — Appointment  of 
Trustee.^Reniovals. 

§  9.      Compositions. 

§  10.  Property  and  Rights  Passing  1o 
Tru.^tee. — A.  Particular  Kinds  of  Property  or 
Rights.  B.  Nature  of  Trustee's  Title  in  Gen- 
eral. C.  Effect  of  Liens  Acquired  by  Legal 
Proceedings.  D.  Effect  of  Liens  Contracted. 
E.  Effect  of  Preferential  Transfers.  P.  Ef- 
fect of  Preferential   Payments. 

§  11.  Collection,  Reduction  to  Possession 
and  Protection  of  the  Property. — A.  Discov- 
ery. B.  Compelling  Surrender  by  Bankrupt. 
C.  Property  in  Possession  of  Officers  Ap- 
pointed by  State  Courts.  D.  Summary  Pro- 
ceedings   Against    Third    Persons — Jurisdic- 


tion. E.  Actions  ^o  Collect  or  Reduce  to 
Possession. 

§  12.  Protection  of  Trustees'  Title  and 
Possession. — A.  Restraining  Interference.  B. 
Actions   Affecting   Trustees'    Title. 

§  13.  Rights  of  Trustees  in  Pending  Ac- 
tions by  and  Against  Bankrupt. — Jurisdiction 
of  State  Courts. 

§  14.  Management  of  the  Property  and 
Reduction  to  Money. — A.  Deposits  and  Pay- 
ments.    B.   Sale. 

§  15.  Clnims  Against  the  E}state  and  Proof 
and  Allowance. — A.  Claims  Provable.  B 
Proof  of  Claims.  C.  Contest  of  Claims.  D. 
Surrender  of  Preferences.  E.  Priorities.  F. 
E.xpenses  of  Proceedings.  G.  Expenses  of 
Receivers  and  Assignees  Appointed  Prior  to 
Bankruptcy  Proceedings. 

§  16.  Right  to  and  Setting  off  Bankrupt's 
Elxeniptions. 

§  17.  Death  of  Bankrupt — Allowance  to 
W^ldow. 

§  18.  Referees;  Proceedings  Before  Them 
and   Review  Thereof. 

§  19.  Modification  and  Vacation  of  Orders 
in    Bankruptcy. 

§  20.     Trustees'  Bonds;  Actions  Thereon. 

§  21.  Accounting  and  Settlement  of  Trus- 
tee. 

§  22.  Disiiharge  of  Bankrupt. — A.  Pro- 
cedure to  Obtain — Vacation  Thereof.  B. 
Grounds  for  Refusal.  C.  Liabilities  Re- 
leased.    D.  Pleading  Discharge. 


§  1.  Validity  of  act. — That  the  bankruptcy  act  of  July  1,  1898,  permits  others 
than  traders  to  be  adjudged  bankrupts/  or  because  bankrupts  are  allowed  the  state 
statutory  exemptions,^  or  because  it  fails  to  require  notice  to  creditors  of  the  filing 
of  a  petition  in  voluntary  proceedings,'  or  personal  service  of  notice  of  application 
for  discharge  in  such  proceedings,*  does  not  render  it  unconstitutional. 


195  111.  507.  In  a  prosecution  under  Starr 
&  C.  Ann.  St.  c.  38,  §  168,  defendant  may 
testify  that  he  believed  the  bank  -was  sol- 
vent, though,  if  the  proof  of  knowledge  to 
the  contrary  is  great,  failure  to  permit  him 
so  to  do  is  harmless — Paulsen  v.  People,  195 
111.  507. 

16.  A  charge  of  embezzlement  in  paying 
out  money  on  a  note  known  to  be  worthless 
with  intent  to  injure  and  defraud  the  bank — 
McKnight  v.  U.  S.   (C.  C.  A.)   115  Fed.  972. 

17.  United  States  v.  German,  115  Fed.  987. 

18.  McKnight  v.  U.  S.  (C.  C.  A.)  115  Fed. 
972. 


1.  Hanover  Nat.  Bank  v.  Moyses,  186  U.  S. 
ISl,    46   Law.   Ed.   1113. 

2.  Such  provision  not  being  an  attempt 
to  delegate  legislative  powers — Hanover  Nat. 
Bank  V.  Moyses,  186  U.  S.  iSl,  46  Law.  Ed. 
1113. 

3.  Hanover  Nat.  Bank  v.  Moyses,  186  U.  S. 
181,  46  Law.  Ed.  1113. 

4.  It  does  not  deprive  creditors  of  their 
property  without  due  process  of  law — Han- 
over Nat.  Bank  v.  Moyses,  186  U.  S.  181,  46 
Law.  Ed.  1113. 


)12 


EANKRUPTCY. 


§2 


§  2.  Supersession  of  state  laws. — ^The  passage  of  the  federal  bankrupt  act  sus- 
pended the  operation  of  state  bankruptcy  acts/  except  as  to  persons  and  cases  which 
are  not  within  the  purview  of  the  act;"  and  a  state  statute  relating  to  insolvent 
raining  corporations/  and  permitting  proceedings  against  a  farmer/  are  not  super- 
seded. Pending  proceedings  under  the  state  laws  were  not  barred  by  the  passage 
of  the  federal  act/  and  a  voluntary  assignment  for  the  benefit  of  creditors  before 
the  passage  of  the  bankrupt  act  is  a  pending  proceeding." 

§  3.  Occasion  for  proceeding  and  acts  of  banhruptcy.  A.  General  assign^ 
inent. — It  is  an  act  of  bankruptcy  for  a  debtor  to  make  a  general  assignment  for 
the  benefit  of  creditors,  irrespective  of  his  solvency.^^ 

B.  Insolvency. — One  is  not  insolvent  within  the  act  if  his  assets  are  sufficient 
to  pay  his  debts.^-  In  determining  the  question  of  insolvency,  only  such  transfers 
as  were  made  to  defraud  creditors  should  be  excluded  as  assets/^  and  property 
mortgaged  may  be  included,  though  it  does  not  appear  that  the  mortgage  was  so 
intended."  The  mere  submission  of  a  corporation  to  the  appointment  of  a  re- 
ceiver by  a  state  court  is  not  of  itself  an  act  of  bankruptcy,^^  nor  is  an  application 
by  a  partnership  for  dissolution  and  the  appointment  of  a  receiver,  though  the 
action  was  instituted  for  the  purpose  of  preventing  bankruptcy  proceedings /«  and 
an  answer  in  proceedings  in  a  state  court  for  the  appointment  of  a  receiver  ad- 
mitting insolvency  is  not  an  admission  in  writing  of  inability  to  pay  debts  or  a 
willingness  to  be  adjudged  a  bankrupt."  That  the  petitioner  sent  a  post-dated 
check  and  a  note  to  a  creditor  and  afterward  renewed  the  note,  which  was  finally 
paid  a  little  less  than  four  months  before  his  application,  is  insufficient  to  show 
his  insolvency.^^ 

C.  Disposition  of  property  with  intent  to  kinder,  delay,  or  defraud  creditors. — 
An  actual  intent  to  hinder,  delay,  and  defraud  must  exist  before  any  of  the  acts 
specified  in  the  law  shall  constitute  an  act  of  bankruptcy,"  and  an  intent  in- 
volves a  purpose  wrongfully  or  unjustifiably  to  prevent,  obstruct,  embarrass,  or 
postpone  creditors  in  the  collection  or  enforcement  of  their  claims."  Intent  will 
be  presumed  when  one  does  any  act  which  he  knows  will  produce  that  result." 
The  doing  or  permitting  of  any  of  the  things  specified  in  such  section  with  intent 
not  to  become  a  bankrupt  is  not  necessarily  doing  or  permitting  them  with  intent 
to  hinder,  delay,  or  defraud  creditors.-^  It  is  not  permitting  a  "removal"  of  prop- 
erty by  the  debtor  within  the  above  section  where  he  had  neither  the  power  nor 


5.  Carling  v.  Seymour  Lumber  Co.  (C.  C. 
A.)  113  Fed.  483;  In  re  Storck  Lumber  Co., 
114  Fed.  360;  R.  H.  Herron  Co.  v.  Superior  Ct. 
of  Citv  &  County  of  San  Francisco,  136  Cal. 
279.  68  Pac.  814;  Littlefield  v.  Gay,  96  Me.  422. 

6.  R.  H.  Herron  Co.  v.  Superior  Ct.  of  City 
&  County  of  San  Francisco,  136  Cal.  279,  68 
Pac.  814;  Littlefield  v.  Gay.  96  Me.  422;  Old 
Town  Bank  v.  McCormick,  96  Md.  341;  Rosen- 
feld  V.  Siegfried,   91  Mo.  App.   169. 

7.  R.  H.  Herron  Co.  v.  Superior  Ct.  of  City 
&  County  of  San  Francisco.  13G  Cal.  279.  68 
Pac.  814;  Littlefield  v.  Gay,  96  Me.  422. 

S.  Bankruptcy  Act.  §  4a.  excepts  "a  person 
en'^aged  chiefiv  in  farming  or  the  tillage  of 
the  soil" — Old  Town  Bank  v.  McCormick,  96 
Md.  341. 

9.  Where  the  proceedings  were  pending. 
an  action  to  set  aside  conveyances  as  fraud- 
ulent cannot  be  maintained  by  the  trustee  of 
the  insolvent  appointed  under  the  bankruptcy 

act Hood   V.   Blair   State  Bank    (Neb.)    91  N. 

W.  701,   706. 


10.  Osborn    v.    Fender    (Minn.)     92    N.    W, 
1114. 

11.  Day    V.    Beck    &   Gregg   Hardware    Co. 
(C.  C.  A.)   114  Fed.   834. 

12.  In  re  Henry  Zeltner  Brewing  Co.,  117 
Fed.  799. 

13.  §  1,  subd.  15 — Posey  v.  McManis   (Tex. 
Civ.  App.)   67  S.  W.  792. 

14.  Posey  V.  McManis   (Tex.  Civ.  App.)    67 
S.  W.  792. 

15.  In  re  Henry  Zeltner  Brewing  Co.,  117 
Fed.  799. 

16.  In  re  Varick  Bank.  119  Fed.  991. 

17.  Bankruptcy  Act.   §   3a   (5) — In  re  Wil- 
mington Hosiery  Co..  120  Fed.  ISO. 

18.  In  re  Chappell.  113  Fed.  545. 

19.  Bankruptcy  Act.   §  3a   (1) — In  re  Wil- 
mington Hosiery  Co.,  120  Fed.  180. 

20.  In  re  Wilmington  Hosiery  Co.,  120  Fed. 
180. 

21.  In    re    Wilmington    Hosiery    Co.,    120 
Fed.  180. 

22.  Bankruptcy  Act   1898.   §   3a   (1) — In   re 
Wilmington  Hosiery  Co.,  120  Fed.  180. 


g  4 


PERSONS   WITHIN   THE  ACT. 


313 


tlie  right  to  prevent  its  removal,^^  as  where  possession  was  taken  by  a  receiver 
appointed  by  a  state  court-*  after  admission  of  insolvency  by  answer  in  the  pro- 
ceedings in  the  state  court.^' 

D.  A  preferential  transfer  of  property  while  insolvent  to  a  particular  creditor 
or  creditors  is  an  act  of  bankruptcy/^  irrespective  of  knowledge  on  the  part  of  the 
creditor  of  an  intention  to  prefer  him.^T  If  legal  proceedings  result  in  a  prefer- 
ence and  the  debtor  fails  to  discharge  or  vacate  such  preference,  it  will  constitute 
an  act  of  bankruptcy  and  there  need  be  no  intent  on  the  part  of  the  debtor  to 
prefer  the  creditor,  nor  need  he  participate  in  bringing  about  the  preference.^* 

§  4.  Persons  who  may  he  adjudged  bankrupt  and  lijho  may  petition. — A 
farmerj^"  a  wage  earner,  earning  less  than  $1,500  per  year,^^  a  carrier,^^  mining^^ 
or  laundry  corporation,^^  or  an  incorporated  social  club,^*  or  a  corporation  which 
had  never  acted  under  its  charter  authorizing  it  to  engage  in  mercantile  pur- 
suits,^^  is  not  subject  to  involuntary  proceedings. 

Voluntary  proceedings  may  be  instituted  by  a  debtor  who  owes  less  than 
$1,000,^**  and  an  unliquidated  claim  for  a  personal  tort  is  not  a  debt  which  can  bo 
included  in  his  schedule,^^  since  the  word  "debt"  in  section  4  of  the  act  is  limited  to  a 
debt^  demand,  or  claim,  provable  in  bankruptcy,  as  defined  in  section  1,  subd.  11. ^^ 
An  insane  person  is  not  qualified  to  file  a  petition  in  voluntary  proceedings.^^ 

Involuntary  proceedings  may  be  instituted  by  a  creditor  who  holds  an  un- 
surrendered preference/'^  but  a  creditor  whose  claim  is  disputed  and  unliquidated" 
or  who  is  enforcing  his  claim  by  action  in  a  state  court*-  cannot.  While  a  debtor 
owing  less  than  $1,000  cannot  be  adjudged  a  bankrupt,*^  yet  jurisdiction  is  not  lost 
where  other  petitioners  join  their  claims  bringing  the  amount  up  to  the  limit;** 
but  the  requisite  number  of  petitioners  against  a  corporation  cannot  be  made  up 
by  one  creditor  assigning  a  part  of  his  claim  to  two  other  persons,  the  other  cred- 
itors being  unwilling  to  file  the  petition.*'^  A  petition  in  involuntary  bankruptcy 
proceedings  against  a  corporation  cannot  be  filed  by  creditors  who  became  such  by 
an  assignment  of  a  part  of  the  creditor's  claim  to  them.*" 


23.  "Removal"  as  used  In  that  section 
means  an  actual  or  physical  change  in  the 
possession  or  locality  of  the  property — In  re 
Wilmington  Hosiery  Co.,  120  Fed.  180. 

24.  In  re  Wilmington  Hosiery  Co..  120 
Fed.  180. 

25.  In  re  Wilmington  Hosiery  Co.,  120 
Fed.  180. 

26.  Bankruptcy  Act  1898,  §  3a — Boyd  v. 
Lemon  &  Gale  Co.,  114  Fed.  647.  Evidence 
held  sufficient  to  show  insolvency  at  the  time 
Qf  making  a  preferential  transfer  which  was 
averred  as  the  act  of  bankruptcy — In  re  Cod- 
dington.   118   Fed.   281. 

27.  Act  1898,  §  3a  (2).  Deed  of  trust  as 
security — Boyd  v.  Lemon  &  Gale  Co.,  114  Fed. 
«47. 

28.  Bankruptcy  Act.  §  3a  (3) — White  v. 
Bradley  Timber  Co..  119  Fed.  989. 

29.  Evidence  held  sufficient  to  show  that 
a  person  was  not  "engaged  chiefly  in  farm- 
ing" within  section  4  of  the  Bankruptcy  Act 
— In  re  Drake.  114  Fed.  229. 

30.  In  r*  Pilger,  118  Fed.  206. 

31.  In  re  Philadelphia  &  Lewes  Transp. 
Co.,  114  Fed.   403. 

32.  R.  H.  Herron  Co.  v.  Superior  Ct.  of 
City  &  County  of  San  Francisco,  136  Cal.  279, 
68  Pac.  814. 

33.  Bankruptcy  Act,  §  4 — In  re  White  Star 
Laundrv  Co.,  117  Fed.  570. 

34.  In  re  Fulton  Club,  113  Fed.  997. 


35.  In  re  Tontine  Surety  Co.,  116  Fed.  401. 

36.  Llttlefield  v.  Gay.  96  Me.  422. 

37.  Where  the  only  debt  which  the  peti- 
tioner scheduled  was  a  judgment  for  mali- 
cious injury  to  the  person,  from  which  an 
appeal  was  pending,  the  adjudication  will  be 
set  aside — In  re  Yates.  114  Fed.  365. 

38.  In  re  Yates.  114  Fed.  365. 

39.  §  59a — In  re  Eisinberg,  117  Fed.  786. 

40.  In    re  Herzikopf,    118    Fed.   101. 

41.  His  claim  must  first  be  liquidated  as 
required  by  §  63b— In  re  Big  Mea-iows  Gas 
Co.,  113  Fed.  974. 

42.  By  attachment — Buckingham  v.  Schuyl- 
kill Plush  &  Silk  Co.  (N.  Y  )  38  Misc.  Rep. 
305. 

43.  R.  H.  Herron  Co.  v.  Superior  Ct.  of 
City  &  County  of  San  Francisco.  136  Cal  279 
68  Pac.  814;  Littlefield  v.  Gay,  96  Me.  422. 

44.  In  re  Ryan,  114  Fed.  373.  Evidence 
held  sufficient  to  show  that  petitioner  was 
entitled  to  damages  to  the  jurisdictional 
amount — In  re  Stern  (C.  C.  A.)  116  Fed.  604; 
Appeal  of  Manhattan  Ice  Co.,  Id.;  In  re  Man- 
hattan Ice  Co.,  114  Fed.  399. 

45.  Under  Bankruptcy  Act  1898,  §  59,  three 
creditors  must  petition  to  have  a  corporation 
declared  bankrupt — In  re  Independent  Thread 
Co.,  113  Fed.  998. 

46.  In  re  Independent  Thread  Co.,  113  Fed. 
998. 


314 


BANKRUPTCY. 


5A 


§  5.  Procedure  for  adjudication.  A.  Involuntary. — The  petition  must  allege 
that  the  defendant  is  not  a  wage  earner  nor  a  person  engaged  chiefly  in  farming.*^ 
It  must  aver  that  payments  while  insolvent  were  made  with  intent  to  prefer  the 
creditor.*^  If  based  on  a  concealment  of  money  with  intent  to  hinder,  defraud, 
and  delay  creditors,  it  need  not  set  forth  the  manner  and  details  of  the  conceal- 
ment.*" An  averment  that  one  of  petitioner's  claims  was  fraudulently  con- 
tracted may  be  stricken  out  as  impertinent.^"  If  proceedings  are  sought  to  be  in- 
stituted against  a  partnership,  the  petition  should  be  specifically  directed  against 
the  partnership  and  not  against  the  individuals  composing  it,^^  and  the  part- 
nership as  such  is  not  brought  before  the  court  by  a  petition  against  the  in- 
dividuals composing  it.^^  It  is  not  necessary  that  a  petition  against  a  corpora- 
tion aver  the  nature  of  the  company's  business. ^^  The  bankruptcy  act  does  not 
require  that  a  petition  shall  be  verified  by  a  formal  or  any  affidavit."*  It  may 
properly  be  verified  by  the  attorney  or  agent  of  the  petitioner,^^  who  has  knowledge 
of  the  facts,"®  and  if  verified  by  the  attorney  his  authoilty  is  sufficiently  shown  if 
it  appear  that  he  is  admitted  to  practice  in  the  circuit  or  district  courts  pursuant 
to  bankruptcy  order  4."'  If  it  is  signed  and  verified  by  a  person  in  behalf  of  a  cor- 
poration, he  must  state  under  oath  that  he  was  authorized  to  so  sign  and  verify."** 

The  last  day  should  be  included  in  computing  the  time  to  answer."^ 

Tke  general  power  of  the  court  to  permit  amendm^ents  is  not  abrogated  or  re- 
stricted by  bankruptcy  rule  11,^°  and  is  by  rule  6,  by  implication,  limited  to  where 
earlier  acts  of  bankruptcy  are  to  be  included.®^  The  petition  may  be  amended  at 
any  stage  of  the  proceedings.*^  Unless  a  failure  to  state  an  act  of  bankruptcy  in 
the  original  petition  is  excused,  and  unless  an  amendment  would  be  in  further- 
ance of  justice,  an  amended  petition  will  not  be  entertained,®^  and  if  the  pro- 
ceedings are  against  the  members  of  a  partnership,  it  cannot  be  amended  so  as  to 
call  for  an  adjudication  against  the  partnership.**  A  clerical  error  in  the  jurat 
of  a  duplicate  original  petition  may  be  cured  by  amendment.*" 

Objections  to  the  petition**  and  to  the  jurisdiction  of  the  bankruptcy  court 
over  the  person  and  estate  of  the  debtor  are  waived  by  his  appearance  and  giving 
testimony  on  the  hearing  of  the  petition.*^ 

On  proper  demand  made  therefor,  the  bankrupt  may  have  jury  trial  on  the 
question  whether  he  had  made  a  general  assignment.** 

The  bankrupt  may  be  examined  on  the  question  of  his  solvency  at  the  time 
of  the  alleged  preferential  transfer.*'     The  proof  must  affirmatively  show  that  the 


47.  In  re  Bellah.  116  Fed.  69. 

48.  In  re  Ewing,  115  Fed.  707. 

49.  In  re  Bellah.  116  Fed.  69. 

50.  In  re  Ewing.  115  Fed.  707. 

51.  In  re  Mercur,  116  Fed.   655. 

52.  In  re  Mercur.  116  Fed.  655. 

53.  Where  a  petition  alleges  that  the  cor- 
poration had  had  its  principal  place  of  busi- 
ness within  the  district  for  the  greater  por- 
tion of  six  months  next  preceding  the  date  of 
the  filing  of  the  petition  and  had  property 
within  said  district  and  owed  debts  to  the 
amount  of  $1,000.  it  is  fiufTicient,  especially 
where  the  demurrer  was  filed  as  a  part  of 
the  answer  on  which  the  parties  went  to 
final  hearing — In  re  Stern  (C.  C.  A.)  116  Fed. 
604;  Appeal   of  Manhattan  Ice  Co.,  Id. 

54.  In  re  Bellah.  116  Fed.  69. 

55.  In  re  Herzikopf,  118  Fed.  101. 

56.  In  re  Hunt.   118  Fed.   282. 

57.  In  re  Herzikopf,  118  Fed.  101. 


58 
59. 


In  re  Bellah,  116  Fed.  69. 

Day    V.    Beck    &    Gregg   Hardware    Co. 


(C.  C.  A,)   114  Fed.  834. 


In  re  Bellah.  116  Fed.  69. 

In  re  Sears   (C.  C.  A.)   117  Fed.   294. 

In  re  Mercur,  116  Fed.  655. 

White  V.  Bradley  Timber  Co.,  116  Fed. 


60. 
61. 

62. 
63. 

768. 

64.  Proceedings  held  to  be  against  the  In- 
dividual members  of  a  partnership  and  not 
against  the  latter — In  re  Alercur,  116  Fed. 
655. 

65.  In  re  Bellah,  116  Fed.  69. 

66.  Objection  that  the  attorney  or  agent 
had  no  authority  to  verify  the  petition — In 
re  Herzikopf.  118  Fed.  101. 

67.  In  re  Smith.  117  Fed.  961. 

68.  Day  V.  Beck  &  Gregg  Hardware  Co. 
(C.  C.  A.)   114  Fed.  834. 

69.  Bankruptcy  Act  1898,  §  3d — In  re  Cod- 
dington,  118  Fed.  281. 


§  7 


CUSTODY   OF  PROPERTY. 


315 


person  sought  to  be  adjudged  an  involuntary  bankrupt  is  not  within  the  exceptions 
of  the  act.''" 

An  adjudication  roade  on  the  tenth  day  after  the  filing  of  the  petition  in  de- 
fault of  an  answer  is  premature,  since  the  time  of  answering  does  not  expire  until 
the  expiration  of  the  tenth  day.''^  The  mere  adjudication  of  the  partners  of  a  firm  as 
banlvrupts,  is  not  an  adjudication  against  the  partnership/^  If  the  petition  is  dis- 
missed, the  respondent,  not  having  been  deprived  of  possession  of  his  property, 
will  not  be  allowed  counsel  fees  or  damages.''*  Want  of  jurisdiction  is  ground  for 
collateral  attack.'^*  A  judgment  of  a  court  of  bankruptcy  on  a  verdict  of  not 
guilty  by  jury  can  be  reviewed  only  by  writ  of  error.'''* 

B.  Voluntary. — If  a  partnership  is  seeking  a  discharge  from  firm  as  well  as 
individual  liability,  separate  petitions  should  be  filed  and  subsequent  proceedings 
should  be  conducted  separately.''^  On  default  of  a  partner  after  service  of  the 
petition  by  his  co-partner,  the  proceedings  will  be  deemed  voluntary  on  the  part 
of  both.''''  Since  the  bankruptcy  act  does  not  give  a  creditor  the  right  to  contest 
voluntary  proceedings,  he  cannot  intervene  for  the  purpose  of  shov/ing  that  the 
petitioner  is  solvent,'®  nor  can  he  petition  to  vacate  an  adjudication,^^  and  even 
if  he  had  the  right  to  intervene,  that  the  facts  stated  in  opposition  by  him  came 
to  his  knowledge  only  recently  will  not  excuse  a  delay  of  eight  months.^*^  There 
is  no  presumption  from  the  adjudication  that  the  bankrupt  was  insolvent  at  any 
period  previous  to  the  filing  of  his  petition.**^  An  order  sustaining  a  demurrer  to 
a  petition  on  an  application  to  vacate  an  adjudication  in  voluntary  proceedings  can 
be  reviewed  only  by  petition  and  not  by  appeal.®^ 

§  6,  Conflict  between  voluntary  and  involuntary  proceedings. — That  a  pe- 
tition in  involuntary  proceedings  has  been  filed  will  not  bar  a  voluntary  petition, ^^ 
but  the  latter  will  be  given  priority  without  prejudice  to  the  rights  of  the  creditors 
in  the  former.®* 

§  7.  Protection  and  possession  of  the  property  pending  the  appointment  of 
trustee;  receivers. — A  warrant  for  the  seizure  of  property  of  an  alleged  bankrupt 
will  not  be  issued  except  on  a  strict  compliance  with  the  provisions  of  section 
69  of  the  bankruptcy  act,  and  it  will  not  be  issued  on  the  affidavit  of  the  bankrupt 
alone  waiving  all  preliminaries.®'  A  receiver  will  be  appointed  only  pending  the 
filing  of  a  bond  by  the  petitioners ;®®  he  is  entitled  to  possession  of  the  property  as 
against  a  mortgagee  who  took  possession  thereof  under  the  mortgage  subsequent 
to  the  adjudication.®''  A  court  of  bankruptcy  has  jurisdiction  to  restrain  the  en- 
forcement of  claims  against  the  bankrupt's  property  pending  the  appointment  of  a 
trustee,®®  as  where  a  sale  is  attempted  of  property  fraudulently  conveyed  by  the 


70.  In  re  Pilg-er,  118  Fed.  206. 

71.  Sts.  at  Larg-e.  p.  544.  §§  18b  and  18e 
— Day  V.  Beck  &  Gregg  Hardware  Co.  (C.  C. 
A.)  114  Fed.  834. 

72.  Bankruptcy  Act,  §  5h,  cannot  be  con- 
strued into  affirmative  authority  for  the  ad- 
ministration of  firm  assets  in  individual  pro- 
ceedings against  aU  the  parties — In  re  Mer- 
cur,  116  Fed.  655. 

73.  §  3  (5)  e  applies  only  when  his  prop- 
erty has  been  taken  from  his  possession — In 
re  Morris,  115  Fed.  591;  In  re  Williams,  120 
Fed.  34. 

74.  The  validity  of  bankruptcy  proceed- 
ings may  be  collaterally  attacked  in  the  state 
court  on  the  ground  of  insufficiency  of  the 
property  of  the  petitioning  creditors — Buck- 
ingham V.  Schuylkill  Plush  &  Silk  Co.  (N.  Y.) 
38  Misc.  Rep.  305;  Matter  of  O'Donnell.  I<1. 

75.  Elliott  V.   Toeppner,   187  U.  S.   327. 


76.  In  re  Farley,  115  Fed.  359. 

77.  In  re  Carleton,  115  Fed.  246. 

78.  In  re  Carleton,  115  Fed.  246. 

79.  In  re  Ives  (C.  C.  A.)   113  Fed.  911. 

80.  In  re  Ives  (C.  C.  A.)  113  Fed.  911. 

81.  In  re  Chappell,  113  Fed.  545. 

82.  Bankruptcy  Act,  §  24b — In  re  Ives  (C. 
C.  A.)   113  Fed.  911. 

83.  In  re  Stegar,  113  Fed.  978. 

84.  In  such  case  the  Involuntary  proceed- 
ings will  be  stayed  to  be  renewed  subse- 
quently if  necessary — In  re  Stegar,  113  Fed. 
978. 

85.  In  re  Sarsar,  120  Fed.  40. 

86.  Bankruptcy  Act.  §  3e — Beach  v.  Ma- 
con Grocery  Co.   (C.  C.  A.)   116  Fed.  143. 

87.  In  re  Gutman.  114  Fed.  1009. 

88.  Beach  v.  Macon  Grocery  Co.  (C.  C.  A.) 
116  Fed.  143;  In  re  Smith,  113  Fed.  993.  Ac- 
tions by  creditors   against  an   insolvent  cor- 


316 


BANKRUPTCY. 


§8 


debtor/'  or  under  a  mortgage,  it  appearing  that  the  mortgage  was  void.'**  The 
petition  for  an  injunction  to  restrain  proceedings  in  a  state  court  may  be  signed 
and  verified  by  the  attorney  for  the  creditors.'^ 

§  8.  Creditors'  meetings;  appointment  of  trustee;  removals. — In  voluntary 
proceedings  where  the  schedule  shows  no  assets  and  no  creditor  appears  at  the 
first  meeting,  a  trustee  need  not  be  appointed,'^  and  there  are  no  assets  where  all 
the  scheduled  property  is  exempt.'*^  The  referee  in  proceedings  for  the  appoint- 
ment of  a  trustee  should  entertain  objections  to  claims  to  determine  whether  they 
are  presented  in  good  faith  and  the  right  of  the  claimants  to  vote.'*  Allowable 
claims  cannot  be  considered  at  a  meeting  for  the  election  of  a  trustee  if  the  cred- 
itors are  not  present,'^  or  the  power  of  attorney  of  his  proxy  is  sufficient.'®  The 
notary's  certificate  of  acknowledgment  to  a  power  of  attorney  to  proxy  of  a  bank- 
rupt's creditor  is  sufficient  though  it  contains  no  venue.'^  If  the  attorney  for  cred- 
itors is  appointed  as  trustee  and  he  accepts  the  office,  his  relation  as  attorney  for 
the  creditors  in  the  court  terminates.'^  The  approval  by  the  referee  of  the  trus- 
tee, appointed  by  the  creditors,  should  be  evidenced  by  an  order  in  writing  on 
which  the  parties  may  be  heard  by  the  judge."  In  case  of  disapproval  of  the 
trustee  selected,  the  referee  has  not  power  to  appoint  another  trustee,^  but  he  should 
call  another  meeting,^  and  give  the  creditors  an  opportunity  to  appoint  a  new 

trustee.' 

§  9.  Compositions. — Neither  the  creditor  nor  the  bankrupt  can  be  compelled 
to  pay  receivers  and  attorneys'  fees  on  the  composition,*  and  in  the  absence  of 
such  an  agreement,  the  composition  fails  and  the  estate  will  proceed  as  if  no 
composition  had  been  attempted.^  A  composition  should  be  confirmed  when  it  is 
for  the  best  interests  of  creditors.®  A  dismissal  of  bankruptcy  proceedings  after 
confirmation  of  a  composition  will  discharge  all  ordinary  claims  provable  in  bank- 
ruptcy, though  the  holders  did  not  prove  the  same  or  participate  in  the  proceed- 
ing','^ and  the  bankrupt  cannot  assert  the  creditors'  rights  as  against  a  contract 
made  by  him,  valid  as  between  himself  and  the  claimant.* 


poration  commenced  in  the  state  court,  will 
not  be  restrained,  but  proceedings  on  the 
judg-ment  will  be  enjoined,  it  being  uncertain 
whether  creditors  can  enforce  stockholders' 
liabilities  before  their  claims  had  been  re- 
duced to  judgments — In  re  Remington  Auto- 
mobile &  Motor  Co.,  119  Fed.  441. 

89.  In  re  Miller,  118  Fed.  360. 

90.  Under  Ga.  Code.  §  2878,  providing  that 
a  creditor  cannot  collect  usurious  interest 
from  an  insolvent  debtor  to  the  prejudice  of 
other  creditors,  a  sale  under  a  deed  in  fact  a 
mortgage  void  as  usurious,  may  be  restrain- 
ed  In  re  Miller.  118  Fed.  360;  In  re  Ball,  118 

Fed.  672. 

91.  If  the  moving  papers  state  why  It  Is 
made  by  the  attorney  it  is  sufficient — In  re 
Goldberg,  117  Fed.  692.  Sufficiency  of  peti- 
tion, by  creditors  to  restrain  attachment  pro- 
ceedings in  the  state  court,  to  show  that  the 
bankruptcy  proceedings  were  pending  in  the 
di«?trict  wherein  the  petition  was  filed — In  re 
Goldberg.  117  Fed.  692.  That  the  property 
attached  was  sold  without  proper  notice,  un- 
d'-r  order  of  sale  by  the  state  court,  to  the 
attaching  creditor's  son  for  one-tenth  the 
appraised  value  warrants  the  Issuance  of  an 
injunction  restraining  further  interference 
pending  the  bankruptcy  proceedings — In  re 
Goldberg,  117  Fed.  692. 

92.  And  Rule  15  in  bankruptcy  so  provid- 
ing   is    within    Bankruptcy    Act,    §    30,    em- 


powering the  U.  S.  supreme  court  to  pre- 
scribe necessary  rules — Smalley  v.  Lauge- 
nour,  30  Wash.  307,  70  Pac.  786. 

93.  Smalley  v.  Laugenour,  30  "Wash.  307, 
70  Pac.  786. 

94.  In  re  Malino,  118  Fed.  368.  He  should 
permit  an  investigation  into  fhe  relations  be- 
tween an  attorney,  who  had  been  attorney 
for  the  bankrupt  and  at  the  meeting  repre- 
sented certain  creditors,  for  the  purpose  of 
ascertaining  whether  any  of  the  claims  he 
represented  were  held  in  the  interest  of  the 
bankrupt — In  re  Dayville  Woolen  Co.,  114 
Fed.  674. 

95.  In  re  MacKellar,  116  Fed.  547. 

96.  In  re  Henschel  (C.  C.  A.)  113  Fed.  443. 

97.  If  the  proxy  complies  with  the  form 
prescribed,  pursuant  to  Bankruptcy  Act  1830. 
it  is  sufficient — In  re  Henschel  (C.  C.  A.)  113 
Fed.    443. 

98.  In  re  Evans.  116  Fed.  909. 

99.  In  re  Hare,  119  Fed.  246. 

1.  In  re  MacKellar,  116  Fed.  547;  In  re 
Hare,  119  Fed.  246. 

2.  In  re  MacKellar.  116  Fed.  547. 

3.  In  re  Hare.  119  Fed.  246. 

4.  In  re  Slomka,  117  Fed.  688. 

5.  In  re  Slomka.  117  Fed.  688. 

6.  A  composition  confirmed  by  the  court 
as  being  for  the  best  Interests  of  creditors— 
In  re  Arrington  Co.,  113  Fed.  498. 


§10B 


PROPERTY  IN  TRUSTEE. 


317 


§  10.  Property  and  rights  passing  to  trustee.'^  A.  Particular  hinds  of  prop- 
erty or  rights. — A  seat  in  a  stock  exchange  having  a  vendable  value/"  policies  of 
life  insurance  having  a  cash  surrender  value  payable  to  the  bankrupt^^  or  to  his 
wife  if  she  survives  him  and  to  his  representatives  in  case  he  survives  her,^^  though 
the  laws  of  the  state  exempt  the  avails  of  all  life  insurance/^  passes  to  the  trustee. 
A  vested  remainder  in  realty  passes  to  the  trustee  of  the  remainderman  during 
the  existence  of  the  life  estate,^*  and  improvements  placed  on  land  by  a  vendee 
under  contract  to  convey  on  payment  of  the  purchase  money  pass  to  his  trustee 
whether  the  same  are  fixtures  or  not.^''  Partnership  assets  do  not  pass  to  the 
trustee  of  one  of  the  members  of  the  firm,^*  though  the  proceedings  against  the 
members  and  firm  were  instituted  simultaneously  and  by  the  same  creditor/^  nor 
do  goods  obtained  by;  false  pretenses  pass  as  a  part  of  the  bankrupt's  estate."  The 
title  to  exempt  property,"  or  to  public  lands  which  after  the  adjudication  against 
the  bankrupt  reverted  to  the  state  on  nonperformance  of  the  contract  of  sale,'^" 
does  not  pass. 

Property  fraudulently  conveyed  by  the  debtor  passes  to  his  trustee  whether  or 
not  creditors  could  have  attacked  the  conveyance,^^  or  where  by  subsequent  acts 
they  would  be  barred  from  attacking  it,"  and  this  though  the  transfers  were  made 
more  than  four  months  previous  to  the  adjudication,-*  except  where  the  fraudulent 
grantee  had  transferred  it  to  a  bona  fide  purchaser."  Under  act  1867,  a  fraudu- 
Jont  conveyance  made  within  one  month  previous  to  the  institution  of  voluntary 
banlcruptcy  proceedings  was  void.^" 

B.  Nature  of  trustee's  title  in  general. — The  trustee  takes  the  same  but  no 
better  title  than  the  bankrupt  had,^'  subject  to  all  legal  and  equitable  claims'^^  and 


7.  Glover  Grocery  Co.  v.  Dome  (Ga.)  42  S. 
B.  347. 

8.  Where  the  bankrupt  effected  a  com- 
promise with  his  creditors,  there  being  no 
adjudication  against  him,  the  court  of  bank- 
ruptcy may  in  summary  proceedings  direct 
a  surrender  of  property  to  one  claiming 
title  under  a  writing  claimed  to  be  void  un- 
der a  state  statute  as  a  secret  lien — In  re 
Winship  Co.   (C.  C.  A.)   120  Fed.  93. 

9.  Merely  because  through  the  efforts  of 
a  bankrupt  corporate  officer  the  stock  has 
been  enhanced  in  value  will  not  warrant  a 
recovery  of  the  stock  by  his  trustee,  and  this 
(hough  his  wife  owned  all  the  stock  except 
one  share- — Campbell  v.  Thompson  (Colo. 
App.)   70  Pac.  161. 

10.  Page  V.  Edmunds,  187  U.  S.  596. 

11.  In  re  Holden  (C.  C.  A.)   114  Fed.  650. 

12.  Under  the  laws  of  Washington,  the 
wife's  Interest  in  such  insurance  Is  made  her 
separate  property  and  is  assignable — In  re 
Holden   (C.  C.  A.)   114  Fed.  650. 

13.  Bankruptcy  Act,  §  70a  (5) — In  re  Hol- 
den  (C.  C.  A.)   114  Fed.  650. 

14.  In  re  Haslett,  116  Fed.  Cf!0. 

15.  A  vendor  in  Pennsylvania  under  con- 
tract to  convey  on  payment  of  purchase  mon- 
ey has  no  lien  aside  from  his  legal  estate  In 
the  land — In  re  Clark,  118  Fed.  358. 

IG.  Ludowici  Roofing  Tile  Co.  v.  Pa.  Inst, 
for  Instruction  of  Blind,  116  Fed.   661. 

17.  Liudowici  Roofing  Tile  Co.  v.  Pa.  Inst. 
for  Instruction  of  Blind,  116  Fed.  661. 

18.  And  replevin  may  be  obtained  against 
the  trustee  for  such  goods — Bloomingdale  v. 
Empire  Rubber  Mfg.  Co.,  114  Fed.  1016;  Good- 
year Rubber  Co.  v.  Schreiber,  29  Wash.  94,  69 
Pac.  648;  In  re  Burkle,  116  Fed.  766.  The 
seller  to  recover  the  goods  from  the  trustee 


need  not  show  that  the  purchaser  did  not,  at 
the  time  of  the  purchase,  intend  to  pay  for 
them — In  re  Hamilton  P.  &  C.  Co.,  117  Fed. 
774.  Evidence  held  sufficient  to  show  fraud 
by  the  bankrupt  in  procuring  goods,  enti- 
tling the  sellers  to  reclaim — In  re  O'Connor 
114  Fed.  777. 

19.  In  re  Seabolt,  113  Fed.  766. 

20.  Snodgrass  v.  Posey  (Tex.  Civ.  App.)  70 
S.  W.  984. 

21.  Sheldon  v.  Parker  (Neb.)  92  N.  W.  923. 
Evidence  held  sufficient  to  show  a  sale  by  a 
bankrupt  valid  as  against  his  trustee  in 
bankruptcy — Weeks  v.  Fowler,  71  N.  H.  518. 

22.  It  is  not  a  defense  to  an  action  by  the 
trustee  to  recover  property  fraudulently 
transferred  that  the  action  was  brought  on 
the  instigation  of  other  creditors  who  pur- 
suant to  an  agreement  had  ceased  to  prose- 
cute actions  against  the  bankrupt  and  would 
testify  to  the  value  of  the  property  received 
by  defendants — Frank  v.  Musliner,  76  App. 
Div.   (N.  T.)   616. 

23.  In  re  Schenck,  116  Fed.  554. 

24.  In  such  case  the  judgment  in  the  ac- 
tion to  set  aside  the  conveyance  should  be 
for  damages  against  the  fraudulent  grantee 
and  it  should  not  set  aside  the  conveyance — 
Skillin  V.  Maibrunn,  75  App.  Div.   (N.  T.)   588. 

2.'i.     Hallyburton  v.  Slagle,  130  N.  C.  482. 

26.  Logan  v.  Nebraska  Moline  Plow  Co. 
(Neb.)  92  N.  W.  129;  In  re  Kellogg  (C.  C.  A.) 
118  Fed.  1017;  In  re  Rabenau,  118  Fed.  471; 
Snodgrass  v.  Posey  (Tex.  Civ.  App.)  70  S.  W. 
984;  In  re  Standard  Laundry  Co.  (C.  C.  A.) 
116  Fed.  476.  Where  a  chattel  mortgagee 
purchased  the  chattels  and  thereafter  sold 
them  to  a  third  person  who  purchased  sub- 
ject to  the  mortgage,  the  second  purchaser 
and  his  trustees  are  estopped  from  question- 


318 


BANKRUPTCY. 


§  IOC 


liens  existing  at  the  time  of  the  filing  of  the  petition,''^  which  title  vests  as  on  the 
day  of  adjudication.^®  Under  the  bankrupt  act,  18G7,  section  14,  the  bankrupt's 
property  did  not  pass  to  the  assignee  until  after  he  had  qualified  and  it  had  been 
assigned  by  the  judge  or  register.^" 

C.  The  trustee  takes  title  free  from  liens  acquired  by  legal  proceedings  within 
four  months  prior  to  the  filing  of  the  petition  in  voluntary  or  involuntary  pro- 
ceedings,^^ by  a  judgment,^^  or  by  an  execution  issued  on  a  judgment  obtained 
more  than  four  months  before  but  levied  on  property  purchased  by  the  debtor 
while  insolvent  and  within  four  months,^^  irrespective  of  whether  the  debt  would 
be  released  by  the  bankrupt's  discharge;^*  by  proceedings  supplementary  to  execu- 
tion;^'^ by  distraint  for  rent,^°  garnishment^^  or  attachment,^^  and  this  applies 
to  liens  against  exempt  as  well  as  nonexempt  property  f^  but  he  takes  subject  to 
a  lien  acquired  by  legal  proceedings  commenced  more  than  four  months  prior  to 
the  petition,  though  its  enforcement  depends  on  a  judgment  obtained  within  four 
months,  as  by  attachment,*"  or  by  the  commencement  cf  a  judgment  creditor's  ac- 
tion,*^ and  subject  also  to  a  mechanic's  lien  acquired  Avithin  four  months  of  the  bank- 
ruptcy of  the  debtor,  since  it  is  not  acquired  by  legal  proceedings.*^ 

Funds  on  deposit  in  bank  pass  to  the  depositor's  trustee  free  from  any  lien 
of  the  bank  for  the  payment  of  unmatured  notes  held  by  it  against  the  bankrupt/'' 
and  this  though  the  funds  were  under  the  control  of  the  bankrupt's  assignee  for 
the  benefit  of  creditors  and  though  the  notes  matured  after  the  assignment  and 
before  the  petition  in  bankruptcy  was  filed,**  and  particularly  where  the  fund  was 
deposited  in  trust  for  the  benefit  of  certain  creditors.*^ 

D.  Whether  chattel  mortgages  executed  by  the  bankrupt  are  valid  liens  will 
be  determined  by  the  laws  of  the  state  of  the  making.*"  The  trustee  takes  free 
from  any  lien  where  the  mortgagor  was  allowed  to  retain  possession,*^  with  the 


Ing    the    validity    of    the    mortgage — In     re 
Standard  Laundry  Co.  (C.  C.  A.)   116  Fed.  476. 

27.  Duplan  Silk  Co.  v.  Spencer  (C.  C.  A.) 
115  Fed.  6S9. 

28.  South  End  Imp.  Co.  v.  Harden  (N.  J. 
Ch.)  52  Atl.  1127. 

29.  In  re  Gutman,  114  Fed.  1009. 

SO.  Leathern  &  Smith  Lumber  Co.  v.  Nalty, 
109  La.  325.  And  the  assignment  by  the  reg- 
ister to  the  trustee  operated  as  a  conveyance 
of  land  though  not  scheduled — Hallyburton 
V.  Slagle.  130  N.  C.  482. 

31.  Section  67f;  Mencke  v.  Rosenberg,  202 
Pa.  131;  In  re  Beals,  116  Fed.  530.  Bank- 
ruptcy Act  1S98,  §  67f,  should  be  construed  in 
connection  with  U.  S.  Comp.  St.  1901,  p.  3418, 
I  1 — Gabriel  v.  Tonner,  138  Cal.  63,  70  Pac. 
1021. 

32.  Kinmouth  v.  Braeutigam.  63  N.  J.  Eq. 
103:  Mencke  v.  Rosenberg,  202  Pa.  131. 

33.  In  re  Darwin  (C.  C.  A.)  117  Fed.  407. 
A  lien  on  specific  land  cannot  be  acquired  by 
the  filing  of  an  execution  in  a  county  other 
than  that  in  which  the  judgment  was  ren- 
dered within  four  months,  though  the  judg- 
ment was  rendered  more  than  four  months 
before  the  adjudication  of  the  defendant  as 
a  bankrupt. 

34.  In  re  Benedict,  37  Misc.  Rep.  (N.  T.) 
230. 

35.  Property  discovered  in  such  proceed- 
ings passes  to  his  trustee  in  bankruptcy — 
Rodgers  v.  Forbes,  23  Ohio  Cir.  Ct.  R.  438. 

36.  In  re  Duble,  117  Fed.  794. 

3T.  In  re  Beaver  Coal  Co.  (C.  C.  A.)  113 
Fed.  889. 

38.     In   re  Tune,   115   Fed.   906. 
SO.     In   re  Tune,   115   Fed.   906. 


40.  In  re  Beaver  Coal  Co.  (C.  C.  A.)  113 
Fed.  889;  Wakeman  v.  Throckmorton.  74 
Conn.    616. 

41.  Ninth  Nat.  Bank  v.  Moses.  39  Misc. 
Rep.  (N.  Y.)  664;  Metcalf  v.  Barker,  187  U.  S. 
165.  Injunction  issued  by  referee  restrain- 
ing proceedings  in  state  court  on  a  judgment 
and  entered  more  than  four  months  before 
the  adjudication  of  the  judgment  debtor  as 
a  bankrupt  is  without  authority — White  v. 
Thompson   (C.  C.  A.)   119  Fed.  868. 

42.  Holland  v.  Cunliff.  96  Mo.  App.  67. 
The  filing  of  mechanic's  lien  against  the 
bankrupt  after  adjudication  for  a  credit  due 
within  four  months  before  the  adjudication 
gives  the  lien  claimant  no  greater  rights 
than  ordinary  creditors — Lazzari  v.  Havens, 
39  Misc.  Rep.   (N.  Y.)   255. 

43.  Bankruptcy  Act,  §§  63.  68.  relating  to 
mutvial  debts  or  mutual  credits  and  the  right 
of  set-off.  must  be  interpreted  as  applicable 
to  proceedings  in  bankruptcy  and  to  the  in- 
cidental proof  and  allowance  of  claims,  and 
not  as  intended  to  change  the  principles  of 
set-off  in  actions — Pearsall  v.  Nassau  Nat. 
Bank,  74  App.  Div.   (N.  Y.)  89. 

44.  Pearsall  v.  Nassau  Nat.  Bank,  74  App. 
Div.   (N.  Y.)   89. 

45.  The  trustee  of  a  bankrupt,  certain  of 
whose  creditors  had  deposited  In  the  bank 
proceeds  of  his  property  sold  by  them  and 
which  was  to  be  prorated  among  creditors, 
is  entitled  to  possession  of  such  funds  as 
against  the  bank  asserting  an  adverse  claim 
thereto — In  re  Davis,  119  Fed.  950. 

46.  In  re  Josephson.  116  Fed.  404. 

47.  Bankruptcy  Act  1898,  §  70e:  New  York 
Laws    1897,    c,    417 — Skillen   v.    Endelman,    39 


§  lOE 


PROPERTY  IN  TRUSTEE. 


319 


right  te  «pn  and  replace  goods  sold,"  though  the  mortgage  provided  that  the 
proceeds  oi  the  sale  of  the  goods  should  be  used  in  payment  of  the  mortgage  and 
other  debts  and  required  daily  deposits  with  the  mortgagee."  There  is  no  lien 
agamst  the  trustee  where  the  mortgage  was  not  recorded  pursuant  to  an  agree- 
ment, or  where  prejudice  resulted  to  creditors  from  the  failure  •'^i  If  exe- 
cuted before  but  recorded  within  four  months  of  the  adjudication,^^  ^j.  ^n  the 
day  before  filing  the  petition,^^  or  if  recorded  after  the  mortgagor  had  made  a 
general  assignment  for  the  benefit  of  creditors  and  before  the  institution  of  bank- 
ruptcy proceedings  against  him,^*  it  is  not  a  lien.  A  recorded  bill  of  sale  exe- 
cuted to  secure  advancements  to  aid  the  bankrupt  in  the  conduct  of  his  business 
is  a  valid  lien.'^ 

The  trustee  takes  such  rights  of  the  bankrupt,  holding  tinder  a  contract  of  sale 
with  a  reservation  of  title  in  the  seller,  as  the  bankrupt  could  have  transferred  or 
creditors  have  levied  on  or  subjected  to  debts.^' 

E.  Property  transferred  while  insolvent  and  within  four  months  of  the  filin«y 
of  the  petition  shall  be  deemed  a  preference  which  passes  to  the  trustee,"  and 
whether  an  intent  to  prefer  on  the  part  of  the  bankrupt  is  essential  has  been  the 
subject  of  conflicting  decisions.^*     It  must  appear,  however,  that  the  bankrupt  was 
insolvent  at  the  time  of  the  transfer,'*®  and  knowledge  on  the  part  of  the  cred- 
itor,^" such  as  would  induce  a  reasonable  belief  of  the  insolvency — not   a  mere 
cause  to  suspect  the  insolvency — is  sufficient  to  render  the  transfer  within   four 
months  a  preference   and  void.*'^     It  is  not  necessary  to  show   a  specific   agree- 


Misc.  Rep.   (N.  Y.)    261:   In  re  Jones,  116  Fed, 
431. 

48.  In  re  Hull,  115  Fed.  858. 

49.  Egan  State  Bank  v.  Rice  (C.  C.  A.)  119 
Fed.  107. 

50.  In  re  Josephson.  116  Fed.  404. 

51.  Deland  v.  Miller  &  Chaney  Bank 
(Iowa)  93  N.  W.  304;  Texas  Brew.  Co.  v.  Mal- 
lette  (Tex.  Civ.  App.)   67  S.  W.  441. 

52.  Babbitt  V.  Kelley.  96  Mo.  App.  529. 

53.  In  re  Jones.  116  Fed.  431. 

54.  Laws  Wis.  1901.j,c.  207.  provides  that 
an  assignee  for  the  benefit  of  creditors  rep- 
resents the  rights  and  interests  of  creditors 
in  respect  to  transfers  or  liens,  fraudulent 
or  void  as  to  creditors — In  re  Andrae  Co.,  117 
Fed.  561. 

55.  In  re  Durham,  114  Fed.  750. 

56.  To  constitute  such  reservation  a  lien 
It  is  essential  that  the  contract  be  recorded 
(R.  S.  Mo.  1899,  §  3412) — In  re  Fraizer.  117 
Fed.  746;  In  re  Rabenau,  118  Fed.  471;  In  re 
Kellogg  (C.  C.  A.)  118  Fed.  1017;  In  re  Garce- 
wich  (C.  C.  A.)  115  Fed.  87.  Nebraska  Comp. 
St.  c.  32,  §  26 — Logan  v.  Nebraska  Moline 
Plow  Co.  (Neb.)  92  N.  W.  129.  In  Rhode 
Island  property  held  under  a  conditional  con- 
tract of  sale  and  under  which  the  bankrupt 
purchaser  had  no  legal  title,  does  not  pass 
to  his  trustee — In  re  Smith,  119  Fed.  1004. 
Contract  between  consignor  and  bankrupt 
consignee  construed  and  held  a  conditional 
sale  to  the  latter  and  void  under  the  Missouri 
statute  and  that  the  consignor  has  merely 
the  rights  of  an  ordinary  creditor — In  re 
Rabenau,  118  Fed.  471.  Contract  construed 
and  held  to  constitute  a  bailment  and  not  a 
conditional  sale  and  the  bailor  entitled  to  the 
property  as  against  the  trustee  of  the  bailee 
—In  re  Gait  (C.  C.  A.)  120  Fed.  64. 

57.  Bankruptcy  Act  1898,   §   60. 

58.  In  New  York  it  has  been  held  that 
such  intent  is   essential — Benedict  v.  Deshel, 


77  App.  Div.  (N.  Y.)  276;  but  in  California  it 
has  been  held  contra — Gabriel  v.  Tonner 
138  Cal.   63,  70  Pac.  1021. 

59.  Mortgage — In  re  Soudan  Mfg.  Co.  (C. 
C.  A.)  113  Fed.  804.  Facts  held  to  show  that 
the  bankrupt  was  not  an  insolvent  at  the 
time  of  making  certain  payments  to  credit- 
ors and  within  four  months  previous  to  the 
filing  of  his  petition — In  re  Chappell.  113 
Fed.  545. 

60.  Sherman  v.  Luckhardt,  65  Kan.  610.  70 
Pac.  702;  In  re  Harpke  (C.  C.  A.)  116  Fed. 
295.  Evidence  held  insufficient  to  show 
knowledge  of  an  intended  preference  after 
defendant,  a  r>lerk  of  the  bankrupt,  had  re- 
ceived a  preference  by  being  paid  money, 
the  proceeds  of  a  sale  of  the  bankrupt's  en- 
tire stock  of  goods — Dunlop  v.  Thomas,  28 
Wash.  521,  68  Pac.  909.  The  giving  of  an  in- 
solvent firm's  note  indorsed  by  a  third  per- 
son secured  by  delivery  of  the  firm's  collat- 
erals to  secure  a  bank  and  who  discounted 
for  the  firm  its  accepted  drafts,  the  trans- 
action being  conducted  by  the  senior  part- 
ner of  the  firm  who  was  also  an  officer  of 
the  bank  who  had  knowledge  of  the  firm's 
insolvency,  constitutes  a  preference  though 
the  bank's  cashier  had  no  reason  to  believe 
that  the  preference  was  intended  and  the  ac- 
commodation indorser  acted  in  good  faith — 
Crooks  V.  People's  Nat.  Bank,  72  App.  Div. 
(N.  Y.)   331. 

Gl.  Sirrine  v.  Stover-Marshall  Co.,  64  S.  C. 
457;  Rosenfeld  v.  Siegfried,  91  Mo.  App.  169; 
Harmon  v.  Feldheira  (Mich.)  9  Detroit  Leg. 
N.  421.  91  N.  W.  744;  Lampkin  v.  People's 
Nat.  Bank  (Mo.  App.)  71  S.  W.  715;  Gans  v. 
Weinstein,  37  Misc.  Rep.  (N.  Y.)  209;  Sted- 
man  v.  Bank  of  Monroe  (C.  C.  A.)  117  Fed. 
237;  Johnson  v.  Cohn,  39  Misc.  Rep.  (N.  Y.) 
189;  Marden  v.  Sugden,  71  N.  H.  274.  Evi- 
dence held  insufficient  to  show  knowledge  or 
reasonable   cause    to   believe    that   a   grantee 


320 


BANKRUPTCY. 


§  lOE 


ment  between  the  parties  to  prefer.'^  The  question  whether  the  creditor  receiving 
a  preference  had  reasonable  cause  to  believe  the  debtor  to  be  insolvent  is  one 
of  fact.®'  The  day  on  which  the  transfer  was  made  should  be  excluded  and  that 
on  which  the  petition  in  bankruptcy  was  filed  should  be  included,  in  determining 
whether  a  transfer  was  made  within  four  months  preceding  the  filing  of  the  pe- 
tition.®* A  transfer  within  four  months  of  the  adjudication  of  the  debtor  as  a 
bankrupt,  neither  party  at  the  time  believing  that  he  was  insolvent,®*  or  if  in  fact  in- 
solvent, the  corporation  debtor  being  at  the  time  a  going  concern,®®  or  an  oral  agree- 
ment between  the  owner  of  a  building  and  the  contractor  that  materials  already  de- 
livered shall  stand  as  security  for  advancements,  where  by  the  terms  of  the  contract 
the  owner  has  a  general  lien  on  all  materials  delivered  for  the  fulfillment  of  the  con- 
tract, though  the  contract  was  not  recorded,®^  or  the  mere  giving  of  a  renewal  chattel 
mortgage  within  four  months  of  the  bankruptcy  to  the  mortgagor,®*  or  a  conveyance 
in  consideration  of  money  previously  loaned,  executed  eight  months  before,  thoiigh 
by  mistake  not  recorded  until  within  four  months  of  the  filing  of  the  petition,®" 
or  an  equitable  transfer  of  fire  insurance  policies  to  a  creditor  more  than  four 
months  before  the  transferee  was  adjudicated  a  bankrupt,  though  not  delivered 
until  after  or  within  four  months  of  the  adjudication,^"  is  not  a  preference  void 
as  to  the  trustee.  The  distribution  of  the  assets  of  a  partnership  among  individual 
partners  within  four  months  and  while  the  firm  was  insolvent,^^  the  giving  of  notes 
to  a  retiring  partner  for  his  interest,"  a  deposit  in  bank  subject  to  the  debtor's  draft,''' 
are  preferential  transfers. 

The  giving  of  collateral  security  to  creditors  while  insolvent  and  within  four 
months  of  the  debtor's  bankruptcy  constitutes  a  preference;^*  but  merely  because 


was  insoH'ent  at  the  time  of  execution  of  the 
conveyance  to  his  sister  or  that  he  intended 
It  as  a  preference — Congleton  v.  Schreihofer 
(N.  J.  Ch.)  54  Atl.  144.  Evidence  held  Insuf- 
ficient to  show  a  sale  at  such  an  Inadequate 
price  as  will  put  the  purchaser  upon  inquiry 
as  to  the  intent  of  the  transfer  by  the  bank- 
rupt— Dunlop  V.  Thomas,  28  Wash.  521.  68 
Pac.  909.  Hackney  v.  Hargreaves  (Neb.)  92 
N.  W.  626. 

62.  Gabriel  v.  Tonner,  138  Cal.  63,  70  Pac. 
1021. 

63.  Harmon  v.  Walker  (Mich.)  9  Detroit 
Leg.  N.  439,  91  N.  W.  1025;  Deland  v.  Miller 
&  Chaney  Bank  (Iowa)  93  N.  W.  304;  Boudi- 
not  V.  Hamann  (Iowa)  90  N.  W.  497;  Sherman 
V.  Luck-hardt.  96  Mo.  App.  320.  Under  the 
evidence  In  this  case  the  question  whether 
a  certain  transaction  was  a  preference  should 
have  been  determined  by  the  court — Hackney 
V.  Hargreaves   (Neb.)   92  N.  W.  626. 

64.  Whitley  Grocery  Co.  v.  Roach,  115  Ga. 
918. 

C5.  The  grantor  caused  property  to  be 
conveyed  to  the  wife  In  consideration  of 
money  previously  loaned  to  her  under  an 
agreement  that  he  would  convey  to  her  prop- 
erty of  equal  value — Pearsall  v.  Nassau  Nat. 
Bank,  74  App.  Div.  (N.  Y.)  89.  The  husband 
was  not  the  agent  of  the  wife  merely  be- 
cause he  directed  a  conveyance  of  land  pur- 
chased by  him  direct  to  his  wife  and  so 
charged  her  with  notice  of  his  insolvency — 
Pearsall  v.  Nassau  Nat.  Bank.  74  App.  Div. 
(N.  Y.)  89;  Congleton  v.  Schreihofer  (N.  J. 
Ch.)  54  Atl.  144. 

66.  Mortgage  to  secure  money  advanced 
to  pav  outstanding  liabilities — In  re  Soudan 
Mfg.  Co.   (C.  C.  A.)   113  Fed.   804. 

67.  Bankruptcy  Act  1898.  §  70 — Duplan 
Silk  Co.  V.  Spencer  (C.  C.  A.)   115  Fed.  689. 


68.  Deland  v.  Miller  &  Chanev  Bank 
(Iowa)    93  N.  W.  304. 

69.  Conveyances  by  husband  to  wife 
which  were  delivered  to  the  wife's  attorney 
to  be  recorded,  and  who  by  oversight  failed 
to  record  one  of  them  and  the  other  he  re- 
corded only  ten  days  before  the  petition  was 
filed — Dean  v.  Plane.  195  111.  495.  Failure  of 
attorneys  of  a  wife  ,to  whom  the  husband 
had  made  a  conveyance  eight  months  before 
his  adjudication  in  bankruptcy,  the  evidence 
being  sufficient  to  show  that  she  had  no 
knowledge  of  his  Insolvency  or  that  he  might 
become  insolvent,  to  record  the  conveyance 
will  not  justify  a  conclusion  of  fraud — Dean 
V.  Plane,  195  111.  495. 

70.  McDonald  v.  Daskam  (C.  C.  A.)  US 
Fed.    276. 

71.  Such  disposition  gives  a  preference  to 
individual  creditors — In  re  Head,  114  Fed. 
489. 

72.  In  re  Denning,  114  Fed.  219. 

73.  Act  1898,  §§  1  (5),  60— In  re  Stege  (C. 
C.  A.)   116  Fed.  342. 

74.  In  re  Belding,  116  Fed.  1016;  In  re 
Jones.  118  Fed.  673;  In  re  Ed.  W.  Wright 
Lumber  Co.,  114  Fed.  1011.  A  chattel  mort- 
gage covering  goods  owned  by  the  bankrupt, 
together  with  goods  purchased  at  the  time 
of  the  execution  thereof  and  within  four 
months  of  the  commencement  of  the  pro- 
ceedings, is  valid  as  against  the  trustee  only 
HS  to  the  goods  purchased  at  the  time  of  the 
execution — In  re  Hull,  115  Fed.  858.  The 
execution  of  a  mortgage  by  a  partner  of  a 
firm,  to  his  son.  within  four  months  of  the 
Sling  of  his  petition  In  voluntary  bankruptcy, 
which  was  given  as  collateral  security  for  a 
note,  given  by  the  son  to  secure  overdrafts 
by  the  firm,  held  not  to  constitute  a  prefer- 


§  lOF 


PROPERTY  IN  TRUSTEK. 


321 


a  creditor  demanded  or  accepted  security  for  his  claim  is  insufficient  to  show  that 
he  had  reasonable  grounds  for  believing  his  debtor  insolvent  and  that  he  was  re- 
ceiving a  preference  thereby ;'''  nor  will  knowledge  of  the  debtor's  insolvency  be 
presumed  where  the  security  was  for  a  debt  six-sevenths  of  which  constituted  a 
present  loan.'^  The  taking  of  collateral  security  for  a  present  loan  vvithin  four 
months  of  the  bankruptcy  of  the  borrower  is  not  of  itself  the  acceptance  of  a 
preference.''^  Giving  possession  of  and  a  lien  on  future  acquired  property,  under  an 
agreement  made  while  the  owner  was  insolvent  and  within  four  months,  to  secure 
advances,  constitutes  a  preference.''^ 

F.  Preferential  payments. — The  entry  of  a  judgment  by  a  creditor  and  part 
collection  thereof  under  execution  within  four  months  of  the  adjudication  of  de- 
fendant in  bankruptcy,'^  or  the  repayment  of  a  part  of  a  loan  made  vvithin  four 
months  of  an  adjudication  against  the  borrower,'"  or  giving  a  post-dated  check 
payable  on  the  day  of  the  insolvency  of  the  drawer  and  deposited  by  the  creditor 
on  the  same  day  in  another  bank,  which  received  payment  on  the  day  following 
through  the  clearing  house,*^  or  a  fraudulent  secret  preference  to  a  creditor  on  a 
composition  with  the  bankrupt  made  more  than  four  months  before  the  bankruptcy 
of  the  debtor,*^  are  preferences.  In  the  latter  case,  it  is  a  preference  to  the  extent 
of  the  excess  over  the  amount  he  should  have  received  under  the  composition,*' 
which  must  be  surrendered  before  the  creditor  can  prove  an  independent  debt.*** 
A  transfer  of  property  in  payment  of  a  first  mortgage  debt  is  not  a  preference 
where  the  mortgaged  property  was  ample  to  pay  it  and  also  the  second  mortgage 
thereon.*^  A  payment  made  by  a  third  party  to  the  creditor  of  a  bankrupt  is  not 
a  preference  to  the  creditor." 

The  payment  of  a  part  of  the  claim  within  four  months  of  the  petition  m 
bankruptcy,"  as  a  payment  of  a  part  of  a  running  account,  constitutes  a  prefer- 
ence;** but  a  payment  of  a  part  of  a  credit  balance  before  a  claim  for  conversion 
arose  is  not  a  preference  which  must  be  surrendered  before  the  latter  can  be  proved,** 


ence  within    the   bankruptcy   act — Crooks   v. 
People's  Nat.  Bank.  72  App.  Dlv.   (N.  Y.)   331. 

75.  Perry  v.  Booth.  114  N.  Y.  Rep.  706; 
Laundy  v.  First  Nat.  Bank  (Kan.)  71  Pac. 
259;  Congleton  v.  Schreihofer  (N.  J.  Ch.)  54 
Atl.  144. 

76.  Stedman  v.  Bank  of  Monroe  (C.  C.  A.) 
117  Fed.  237. 

77.  Harmon  v.  Feldhelm  (Mich.)  9  De- 
troit Leg.  N.  421,  91  N.  W.  744;  Young  v. 
Upson.  115  Fed.  192;  In  re  Soudan  Mfg.  Co. 
(C.  C.  A.)  113  Fed.  804.  So  held  where  the 
bankrupt  was  engaged  in  a  canning  busi- 
ness, and  advances  were  made  to  him  by  a 
bank  which  took  up  drafts  attached  to  bills 
of  lading  for  cans,  and  mortgages  were  sub- 
sequently executed,  and  further  advances 
made  for  the  purchase  of  raw  material — In 
re  Durham.  114  Fed.   750. 

78.  Mathews  v.  Hardt,  79  App.  Div.  (N.  Y.) 
670. 

79.  In  re  Metzger  Toy  &  Novelty  Co.,  114 
Fed.  957. 

80.  A  loan  was  made  to  a  corporation  by 
a  creditor  within  four  months  and  the  pay- 
ments were  made  after  the  creditor  had  ob- 
tained a  representation  on  the  board  of  di- 
rectors and  during  the  period  of  the  making 
of  the  loan  and  the  part  payments  other 
creditors  had  put  merchandise  into  the  bank- 
rupt's estate  on  credit — In  re  Colton  Exp.  & 
Imp.  Co.,  115  Fed.  158.  Since  an  oral  agree- 
ment that  the  loan  should  be  repaid   from   a 


particular  fund  does  not  create  a  lien,  pay- 
ment made  out  of  such  fund  and  within  four 
months  of  the  borrowers  bankruptcy  con- 
stitutes a  preference— Torrance  v.  Wlnfleld 
Nat.  Bank   (Kan.)    71  Pac.   235. 

81.  In  re  Lyon,  114  Fed.  326. 

82.  In  such  case  the  creditor  will  be  char- 
ged with  the  note  given  as  a  preference  at 
its  face  value  regardless  of  the  amount  ac- 
tually received — In   re  Chaplin.   115  Fed    162. 

83.  In  re  Chaplin,  115  Fed.  162. 

84.  In  re  Chaplin,   115   Fed.   162. 

85.  Posey  v.  McManls  (Tex.  Civ.  App.)  67 
S.  W.  792. 

86.  Money  advanced  by  a  bank  to  the 
bankrupt  under  agreement  that  it  was  to  be 
used  only  for  a  particular  purpose,  but  was 
later  returned  to  the  bank  in  payment  of 
the  check  not  having  been  so  used,  does  not 
constitute  a  preferential  payment — Dressel 
v.  North  State  Lumber  Co.,  119  Fed.  531. 

87.  In  re  Meyer,  115  Fed.  997. 

88.  In  re  Graff.  117  Fed.  343.  Discount  of 
the  debtor's  note  on  account  is  a  preferential 
payment — In  re  Wiessner,  115  Fed.  421. 

89.  Withdrawal  of  a  part  of  a  credit  bal- 
ance after  purchase  of  corporate  stock  by 
bankrupt  brokers  for  claimant  on  the  day  of 
the  purchase,  it  being  presumed,  there  being 
no  evidence  of  the  time  of  the  conversion  of 
the  stock  by  the  brokers,  that  it  was  con- 
verted after  the  withdrawal — In  re  Graff,  117 
Fed.   343. 


Current  Law — 21. 


322 


BANKRUPTCY. 


§  llA 


nor  is  a  payment  to  close  up  an  existing  account,  made  within  four  months  of  the  pe- 
tition in  bankruptcy  of  the  debtor,  a  preference  which  must  be  surrendered  before 
subsequent  credits  can  be  proved.^"  A  payment  to  the  holder  of  notes  by  the 
bankrupt  maker  made  while  insolvent  and  within  four  months  of  the  bankruptcy 
proceedings  is  a  preference  to  the  payee,^'  though  the  note  was  secured  by  solvent 
indorsers,^^'  and  though  the  payments  were  made  to  the  payee's  pledgee  f^  but  a 
payment  to  the  payee  does  not  constitute  a  preference  to  the  accommodation  co- 
makers or  sureties,"^*  or  to  one  who  in  good  faith  and  in  the  ordinary  course  of 
business  discounted  the  note.®' 

§  11.  Collection,  reduction  to  possession,  and  protection  of  the  property.  A. 
Discovery.— K  trustee  appointed  under  the  state  insolvency  laws  more  than  four 
months  previous  to  the  adjudication  of  the  insolvent  as  a  bankrupt  may  be  exam- 
ined by  the  trustee  in  bankruptcy  concerning  his  disposition  of  the  bankrupt's  as- 

sets.«« 

B.  Compelling  surrender  by  hanlxrupt. — It  is  within  the  jurisdiction  of  a 
court  of  bankruptcy  to  determine  whether  or  not  the  bankrupt  has  under  his 
control  or  possession  certain  assets,"  but  he  is  entitled  to  be  heard,  and  to  have  rea- 
sonable time  to  produce  evidence.**  Section  7  of  the  bankruptcy  act  does  not  deprive 
the  bankrupt  of  his  constitutional  right  to  claim  the  privilege  of  a  witness,**  and  he 
cannot,  therefore,  be  compelled,  on  his  examination,  to  answer  questions,^  or  to  dis- 
close certain  papers  which  might  tend  to  incriminate  him.^  A  court  of  bankruptcy 
has  no  broader  powers  in  punishment  for  contempt  than  are  possessed  by  other 
federal  courts.^  On  failure  of  the  bankrupt  to  comply  with  an  order  directing  the 
bankrupt  to  surrender  assets,  the  court  may  commit  him  as  a  for  a  contempt,* 
but  before  committing  him  the  court  should  be  satisfied,  beyond  a  reasonable  doubt 
from  the  evidence,  of  his  ability  to  comply  with  the  order.^     If  on  his  examina- 


90.  In  re  Seay.  113  Fed.  969;  Kimball  v. 
Rosenham  Co.  (C.  C.  A.)  114  Fed  85:  Morey 
Mercantile  Co.  v.  Schiffer  (C.  C  A.)  114  Fed. 
447-  Jaquith  v.  Alden  (C.  C.  A.)  118  Fed.  2.0. 
A  contract  to  loan  money  to  be  advanced 
from  time  to  time  as  required  by  the  bor- 
rower the  amount  of  each  advance  to  be  se- 
cured by  notes  and  a  transfer  of  accounts. 
held  as  between  the  lender  and  the  borrow- 
er's trustee  In  bankruptcy  a  continuous 
transaction  and  that  the  proceeds  of  the 
notes  and  accounts  be  first  applied  to  the 
payment  of  a  note  for  which  the  account 
stood  and  the  excess  applied  generally  on 
the  Indebtedness— Young  v.  Upson  115  Fed 
192  Payments  of  profits  by  a  bankrupt 
stockbroker  to  a  customer  held  not  such  a 
preference  as  would  have  to  be  surrendered 
before  the  latter  could  present  his  claims— 
In  re  Topliff.  114  Fed.  323.  Payment  of  notes 
in  full  of  account  which  were  ^\l^°^^'^%^l 
the  creditors— In  re  BuUock.  116  Fed.  667, 
In  re  Wiessner.  115  Fed.  421. 

9t  In  re  Waterbury  Furniture  Co..  114 
Fed '255;  In  re  Wiessner.  115  Fed.  4Si;  In  re 
Bullock.  116  Fed.  667;  Swarts  v.  Fourth  Nat. 
Bank   (C    C.   A.)   117  Fed.   1. 

93.     Swarts  V.  Fourth  Nat.  Bank  (C.  C.  A.) 

117  Fed.  1.  _   ^    „._ 

93      In  re  Meyer,  115  Fed.  997. 

Q4*  Swarts  V.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed  l;  Swarts  v.  Siegel.  114  Fed.  1001; 
In  re  New,  116  Fed.  116. 

95.     In  re  Wyly,  116  Fed.  38. 

««.  Bankruptcy  Act.  §  21— In  re  Pursell. 
114  Fed.  371. 


97. 

98. 
131. 
99. 
1. 

man, 
2. 


In   re  De  Gottardl,   114  Fed.  328. 
Boyd  V.  Glucklich   (C.  C.  A.)   116  Fed. 


In  re  Nachman,  114  Fed.  995. 
In  re   Shera,   114  Fed.   207;    In  re  Nach- 
114  Fed.   995. 

Bankruptcy    Act,    §    7.    subd.    9 — In    re 
Franklin  Syndicate,  114  Fed.  205. 

3.  The  procedure  to  hold  for  contempt 
and  what  constitutes  a  defense  should  be  the 
same  as  in  the  other  United  States  courts — 
Boyd   V.  Glucklich    (C.  C.  A.)    116  Fed.  131. 

4.  In  re  De  Gottardi,  114  Fed.  328.  Evidence 
held  sufficient  to  show  a  failure  of  bankrupt 
to  surrender  all  his  property — In  re  Shacb- 
ter.  119  Fed.  1010.  It  is  not  a  defense  that 
thieves  broke  into  his  store  and  stole  a 
greater  portion  of  his  goods  where  It  ap- 
peared that  after  he  continued  .business 
with  the  balance  for  about  four  months,  he 
deserted  the  store  and  left  the  goods  In 
such  a  condition  that  any  one  might  take 
them,  and  it  further  appeared  that  he  In- 
formed certain  parties  that  practically  noth- 
ing was  taken  at  time  of  robbery — In  re  Le- 
vin. 113  Fed.  498;  In  re  Wilson,   116  Fed.  419. 

5.  He  cannot  be  ordered  to  surrender 
property  not  in  his  possession  or  under  his 
control — Boyd  v.  Glucklich  (C.  C.  A.)  116 
Fed.  131;  In  re  De  Gottardl,  114  Fed.  328.  A 
bankrupt  committed  for  failure  to  surrender 
assets  concealed,  discharged  from  further 
imprisonment — In   re   Taylor,   114   Fed.    607. 

6.  In  re  De  Gottardi.  114  Fed.  328.  Admis- 
sibility of  evidence  on  the  issue  of  an  alleged 
loss   of  assets  by  reason   of  burglary. 


SllD 


COLLECTION  OP  PROPERTY. 


323 


tion  he  admits  having  had,  a  short  time  previous  to  his  bankruptcy,  certain  assets,  he 
has  the  burden  of  accounting  therefor/  and  on  failure  to  do  so  an  order  directing  its 
surrender  is  proper.'' 

C.  Property  in  possession  of  officers  appointed  hy  state  courts. — The  trustee 
in  bankruptcy  is  entitled  to  possession  of  the  bankrupt's  property  in  the  hands 
of  a  receiver  appointed  by  a  state  court,  in  proceedings  suspended  by  the  operation 
of  the  bankruptcy  act,^  and  where  he  had  not  converted  the  property  into  money, 
an  order  of  the  state  court  directing  a  surrender  on  condition  of  payment  of 
receiver's  and  attorney's  expenses  and  fees  is  erroneous ;»  otherwise  where  the  re- 
ceiver had  converted  the  assets  into  money.^"  The  order  of  surrender  may  properly 
direct  the  court  of  bankruptcy  to  pay  such  expenses  and  fees."  Where  the  state 
court  had  jurisdiction  to  complete  pending  mortgage  foreclosure  proceedings,  its  re- 
ceiver is  entitled  to  possession  of  the  property  covered  by  the  mortgage,"  but  as  to 
property  not  so  covered  and  as  to  the  surplus  arising  from  the  sale  the  trustee 
is  entitled  to  possession."  Generally,  the  trustee  should  first  apply  to  the  state 
court  which  appointed  the  receiver  for  an  order  directing  the  surrender  of  the 
bankrupt's  property.^* 

D.  Summary  proceedings  against  third  persons;  jurisdiction. — A  court  of 
bankruptcy  has  jurisdiction  in  a  summary  manner  to  require  a  third  person  to  pay 
over  money  or  surrender  property  in  his  possession  belonging  to  the  bankrupt's 
estate  to  which  no  adverse  title  is  asserted."  The  court  may,  however,  determine 
whether  a  real  or  pretended  adverse  claim  exists,^^  and  if  it  does  exist  and  the  re- 
spondent does  not  consent,"  or  if  questions  of  fact  will  be  involved  in  determininir 
whether  the  claim  is  real,  the  court  should  decline  jurisdiction."  A  claim  which 
arose  subsequent  to  the  filing  of  the  petition  in  bankruptcy,"  or  a  claim  as  trustee 
under  a  trust  mortgage,^"  or  claims  as  between  trustees  of  different  estates,  are  not 
such  claims  as  would  defeat  the  proceeding.^^  The  respondent  consents  to  jurisdic- 
tion by  appearing  and  defending,^^  or  by  appearing  for  the  purpose  of  review  ;-^  but 
a  consent  is  not  shown  where  the  respondent  demurred  to  the  petition  for  want  of 
jurisdiction  and  sufficient  facts  though  he  also  filed  an  answer  on  the  merits.^* 

Service  of  an  order  to  show  cause  on  persons  not  parties  and  without  the  dis- 
trict does  confer  jurisdiction  in  personam. ^^  An  order  to  show  cause  why  assets 
belonging  to  one  adjudged  a  bankrupt  in  the  district  court  of  New  York  should  not 


7.  In  re  De  Gottardl.  114  Fed.  328.  An  or- 
der directing  bankrupts  to  turn  over  money 
to  their  trustees  held  justified  by  the  evi- 
dence. 

8.  Wilson  V.  Parr,  115  Ga.  629. 

9.  Hanson  v.  Stephens  (Ga.)  42  S.  E.  1028. 
An  application  in  the  federal  court  for  an 
order  that  If  the  state  court  modified  such 
order,  so  as  to  allow  the  property  to  be 
turned  over  to  the  trustee  without  first  re- 
quiring the  fees  so  to  be  paid,  and  the  trustee 
ordered  to  sell  enoug-h  of  the  estate  to  pay 
off  such  fees  and  expenses,  and  making  them 
a  first  lien,  was  denied — In  re  Rogers,  116 
Fed.   435. 

10.  "Wilson  V.  Parr,  115  Ga.   629. 

11.  State  V.  German  Exchange  Bank,  114 
Wis.  436. 

12.  Pleading  in  mortgage  foreclosure  pro- 
ceedings construed  and  held  not  to  have  been 
a  pleading  under  the  state  insolvency  laws 
and  the  receiver  entitled  to  retain  possession 

Carling  v.  Seymour  Lumber  Co.    (C.  C.  A.) 

113  Fed.  483. 

IS.  Carling  v.  Seymour  Lumber  Co.  (C.  C. 
A.)   113  Fed.  483. 


14.  Carling  v.  Seymour  Lumber  Co.  (C  C 
A.)   113  Fed.  483. 

15.  In  re  Davis,  119  Fed.  950;  In  re  MicKle 
116  Fed.  749. 

16.  In  re  Baird,  116  Fed.  765;  In  re  Davis. 
119  Fed.  950;  In  re  Michie.  116  Fed.  749,  In 
re  Waukesha  Water  Co.,  116  Fed.  1009. 

17.  In  re  Baird,  116  Fed.  765;  In  re  Miohie, 
116  Fed.  749.  Where  the  property  is  in  ac- 
tual possession  of  an  adver.«e  claimant,  a  re- 
ceiver should  not  be  appointed  nor  should  a 
summary  order  of  sale  be  made — Beach  v. 
Macon  Grocery  Co.   (C.  C.  A.)  116  Fed.  143. 

18.  In  such  case  the  right  of  contestant 
should  be  determined  in  a  plenary  aotion — 
In  re  Tune,  115  Fed.  906. 

19.  In  re  Davis,  119  Fed.  950. 
In    re    Waterloo    Organ    Co.,    1J4    Fed. 


SO. 
904. 

21. 

22. 

23. 
726. 

24. 

26. 
1009. 


In  re  Rosenberg,  116  Fed.  402. 

In  re  Durham,  114  Fed.  750. 

Philips  V.   Turner    (C.   C.   A.)    114   Fed. 


In  re  Mlchle.  116  Fed.  749. 
In   re  Waukesha  Water  Co. 


116   Fed. 


324 


BANKRUPTCY. 


§11E 


be  surrendered  was  granted  by  the  district  court  for  the  district  of  Pennsylvania." 
A  summary  order  directing  the  surrender  of  assets  should  not  include  interest.*^ 

E.  Actions  to  collect  or  reduce  the  property  to  the  trustee's  possession."^ — 
The  trustee  alone  can  avoid  a  conveyance  made  by  the  bankrupt  in  fraud  of  his 
creditors/"  or  sue  to  recover  unpaid  subscriptions  to  stock  in  the  bankrupt  cor- 
poration.^^ His  remedy  is  an  action  to  recover  property  levied  on  under  judg- 
ments rendered  invalid  by  the  adjudication  in  bankruptcy  and  not  by  a  proceeding 
to  set  aside  the  judgments,^^  and  he  is  entitled  to  all  the  remedies  to  reach  prop- 
erty fraudulently  conveyed  and  all  the  relief  that  can  be  afforded  to  any  other 
individual.^*  It  is  not  a  condition  precedent  to  the  action  by  the  trustee  to 
avoid  fraudulent  conveyances  that  the  claims  against  the  estate  shall  have  been 
filed  and  allowed,**  or  that  the  trustee  shall  have  reduced  them  to  judgment  ;*'  but 
it  must  appear  that  the  assets  in  his  hands  are  insufficient  to  satisfy  the  debts.*' 
If  the  action  is  not  barred  when  the  petition  was  filed,  it  is  not  barred  until  the 
lapse  of  two  years  after  the  estate  has  been  closed."  By  the  recovery  from  a 
fraudulent  transferee  of  personalty,  the  bankrupt's  trustee  is  not  precluded  from 
following  the  proceeds  of  the  goods  received  by  the  bankrupt  in  the  hands  of 
preferred  creditors.**  The  bankrupt  is  not  a  necessary  party  to  an  action  by 
his  trustee  to  avoid  a  transfer  in  fraud  of  creditors,*®  nor  is  a  fraudulent  transferee 
who  had  transferred  the  property  to  another  fraudulent  transferee." 

Jurisdiction  of  courts. — In  the  absence  of  a  consent,  the  federal  court  has 
not  jurisdiction  of  an  action  by  a  trustee  to  recover  assets."  A  suit  by  a  trustee 
to  set  aside  a  fraudulent  foreclosure  sale  of  the  bankrupt's  property  must  be 
brought  within  the  county  wherein  the  foreclosure  decree  was  entered.*' 

Pleading. — The  declaration  or  statement  of  claim  in  an  action  by  a  trustee 
to  avoid  a  transfer  must  aver  that  the  bankrupt  intended  to  give  a  preference, 
end  that  the  creditor  had  reasonable  cause  to  believe  that  he  intended  to  give 
a  preference,**  and  that  if  the  transfer  be  permitted  to  stand,  a  greater  per- 
centage of  the  debt  will  be  allowed  to  the  transferee  than  other  creditors  of  the 
same  class.** 

Evidence. — In  actions  by  trustees  to  reduce  the  bankrupt's  assets  to  his  pos- 
session, the  persons  denying  the  authority  of  a  trustee  have  the  burden  of  proving 
want  of  authority.*^  The  trustee  has  the  burden  of  proving  insolvency  of  the 
bankrupt  at  the  time  of  the  alleged  preference,*®  and  the  referee  in  bankruptcy 
may  be  permitted  to  testify  as  to  the  amount  of  claims  allowed  for  the  purpose  of 


27.  In  re  Pelser.  115  Fed.  199. 

28.  In  re  Davis.  119  Fed.  950. 

29.  Summons  in  an  action  by  a  trustee 
defectively  describing-  him  as  plaintiff,  held 
cured  bv  allegations  in  the  complaint  an- 
nexed—Newland  V.  Zodikow  (N.  Y.)  39  Misc. 
Rep.  541. 

30.  Bankruptcy  Act,  §  70e — Barnes  Mfg. 
Co.  V.  Norden,  67  N.  J.  Law,  493;  Barker  v. 
Franklin  (N.  Y.)  37  Misc.  Rep.  292. 

SI.  Falco  V.  Kaupisch  Creamery  Co.  (Or.) 
70  Pac.  286. 

32.  Gage  v.  Bates  Machine  Co..  71  N.  H. 
884;  King  v.  Same.  Id.;  Fulton  Pulley  Co.  v. 
Same,  Id. 

33.  Sheldon  v.  Parker  (Neb.)  92  N.  W.  923. 
Since  Ala.  Code.  §  1818  authorizes  a  suit  in 
equity  by  creditors  the  trustee  may  main- 
tain the  suit — Andrews   v.   Mather,    134   Ala, 

358 

34.  Schmitt  v.  Dahl  (Minn.)   93  N.  ^V.   665. 

35.  Hood  V.  Blair  State  Bank  (Neb.)  91  N. 
W.  701.  706. 


36.  Deland  v.  Miller  &  Chaney  Bank 
(Iowa)   93  N.  W.  304. 

37.  Schreck  v.  Hanlon  (Neb.)  92  N.  "W. 
625;  Sheldon  v.  Parker,  Id.   923. 

38.  Lampkin  v.  People's  Nat.  Bank  (Mo. 
App.)  71  S.  W.  715. 

38.  Frank  v.  Musliner  (N.  Y.)  76  App.  Div. 
616. 

40.  Skillen  v.  Endelman  (N.  Y.)  39  Misc. 
Rep.    (N.   Y.)    261. 

41.  Mclntyre  v.  Malone  (Neb.)  91  N.  W. 
246;  Stelling  v.  G.  W.  Jones  Lumber  Co.  (C. 
C.  A.)  116  Fed.  261;  Boudinot  v.  Hamann 
(Iowa)  90  N.  W.  497. 

42.  "W.  C.  Belcher  Land  Mortg.  Co.  v.  Bush 
(Tex.  Civ.  App.)   67  S.  W.  444. 

43.  Peck  v.  Connell.  21  Pa.  Super.  Ct.  22. 

44.  Schreyer  v.  Citizens'  Nat.  Bank  (N.  Y.) 
74  App.  Div.  478. 

45.  Oliver  v.  Hilgers  (Minn.)  92  N.  W.  511. 

46.  In  re  Chappell,  113  Fed.  545. 


§  12A 


PROTECTION   OF  TITLE. 


325 


showing  insolvency,*'^  or  the  proceedings  before  him  properly  certified  may  be 
admitted  for  that  purpose/^  or  the  bankrupt  may  be  permitted  to  testify  that  at 
the  time  of  the  making  of  the  transfer  he  considered  himself  in  failing  cir- 
cumstances.*® In  an  action  in  the  state  court  to  set  aside  a  preference  by  the 
bankrupt,  the  testimony  given  by  the  bankrupt  on  his  examination  in  bankruptcy 
proceedings  is  admissible  only  as  affecting  his  credibility  as  a  witness.^"  On  the 
question  of  whether  a  transfer  was  made  in  contemplation  of  insolvency,  a 
voluntary  conveyance  made  on  the  day  following  the  transfer  in  question  is 
admissible  in  evidence."  In  an  action  by  a  trustee  to  recover  property  fraudulently 
conveyed,  a  certified  copy  of  the  order  adjudicating  the  debtor  a  bankrupt  is 
admissible  to  prove  a  collateral  matter.^^  If  the  trustee's  petition  sets  up  a  transfer 
by  way  of  preference  and  fraudulent  conveyance,  evidence  that  the  transfer  was 
colorable  is  not  admissible.'*^  Evidence  of  what  certain  property  brought  at  auction 
is  admissible  on  the  question  of  value.^*  Parol  evidence  is  admissible  to  show 
that  certain  persons  nominally  partners  were  not  so  in  fact."*' 

Judgment. — In  an  action  by  a  trustee  to  set  aside  a  fraudulent  conveyance  of 
realty,  where  the  property  had  passed  to  a  bona  fide  purchaser,  the  damages 
may  be  decreed  against  the  fraudulent  grantee  under  the  prayer  for  general 
relief,  though  no  judgment  could  be  entered  setting  aside  the  conveyance.^' 

Costs  allowed  in  actions  by  the  trustees  in  state  courts  being  subject  to 
general  rules  will  be  treated  elsewhere,"*^  though  in  some  states  by  statute  the  trustee 
may  be  compelled  to  give  security  for  costs  to  entitle  him  to  maintain  the  action.^* 

Interest  on  recovery. — On  recovery  by  the  trustee  of  preferential  payments,  in- 
terest will  be  allowed  from  the  date  of  demand,''*  and  in  case  no  demand  had  been 
made,  from  the  date  of  the  suit.®" 

§  12.  Protection  of  trustee's  title  and  possession.  A.  Restraining  interference. 
— The  court  of  bankruptcy  may  properly  restrain  a  pending  action  against  the 
trustee,  where  it  tends  to  embarrass  the  administration  of  the  estate,  and  where 
it  is  clear  that  his  taking  of  the  property  was  not  wrongful.^^  An  injunction  is 
properly  issued  restraining  an  attachment  suit  in  the  state  court,  which  refuses 
to  recognize  the  adjudication  in  bankruptcy,"^  or  the  marshal  may  be  directed  to 
seize  property  attached  by  the  state  court.®' 


47.  Cullinane  v.  State  Bank  (Iowa)  91  N. 
W.  783.  Admissibility  of  evidence  in  action 
to  avoid  bill  of  sale  executed  within  four 
months  before  the  filing  of  a  petition — Frank 
V.  Musliner  ( N.  Y.)   76  App.  Div.  616. 

48.  Bankruptcy  Act,  §  21d — Spratlin  v. 
Colson.  80  Miss.  278. 

49.  Supplee  v.  Hall,  75  Conn.  17.  In  an 
action  by  a  trustee  to  recover  money  paid  as 
a  preference,  declarations  of  the  bankrupt 
held  admissible — Tredway  v.  Kaufman,  21  Pa. 
Super.  Ct.   256. 

50.  Congleton    v.    Schreihofer    (N.    J, 
54  Atl.  144. 

51.  Supplee  v.  Hall.  75  Conn.  17. 
.'.2.     Rosenfeld    v.    Siegfried,    91    Mo. 


Eq.) 


App. 


169. 
53 
54, 


In  re  Michie.  116  Fed.  749. 
Harmon  v.  Walker  (Mich.)  9  Det.  Leg. 
N.  439,  91  N.  W.  1025.  In  an  action  by  a 
trustee  to  recover  the  value  of  goods  under 
a  void  sale  by  the  bankrupt,  the  admission 
of  evidence  that  the  goods  had  subsequently 
enhanced  in  value  is  not  prejudicial,  where 
the  value  allowed  was  as  of  the  date  of  the 
bill  of  sale — Frank  v.  Musliner  (N.  Y.)  76 
App.  Div.  616. 

r>-,.     Marden  v.  Sugden,  71  N.  H.  274. 

5G.     Skillin    v.    Maibrunn    (N.    Y.)    75    App. 


Div.  588.  Conditional  Judgment  In  action  to 
avoid  sale  by  bankrupt  within  four  months 
held  proper — Frank  v.  Musliner  (N.  Y.)  76 
App.  Div.  616. 

57.  See  Costs.  To  avoid  the  action  by  the 
trustee  to  recover  goods  transferred  within 
four  months  before  the  adjudication,  an  offer 
to  surrender  the  goods  to  the  trustee  must 
be  absolute  and  without  condition — Frank  v. 
Musliner   (N.  Y.)   76  App.  Div.  616. 

58.  A  defendant  in  an  action  by  a  trustee 
is  entitled  to  security  for  costs  only  where 
the  cause  of  action  existed  prior  to  the  ad- 
judication in  bankruptcy.  N.  Y.  Code  Civ. 
Proc.  §  3268 — Kelley  v.  Kremer  (N.  Y.)  74 
App.  Div.  456;  and  causes  of  action  to  recover 
preferential  payments  and  to  set  aside  fraud- 
ulent conveyances  do  not  accrue  prior  to 
the  appointment  of  the  trustee — Kronfeld  v. 
Liebman  (N.  Y.)  78  App.  Div.  437.  Facts  held 
sufficient  to  show  that  a  cause  of  action 
arose  prior  to  the  appointment  of  the  trustee 
— Joseph  v.  Makley  (N.  Y.)   73  App.  Div.   156. 

59.  Tredway  v.  Kaufman,  21  Pa.  Super 
Ct.  256. 

60.  Tredway  v.  Kaufman,  21  Pa.  Super 
Ct.  256. 

61.  In  re  Gutman,  114  Fed.  1009. 

62.  In  T9  Tyfl«,  J 15  Fed.  906. 


326 


BANKRUPTCY. 


§  12iJ 


B.  Actions  affecting  trustee's  title. — State  courts  have  concurrent  jurisdic- 
tion with  federal  courts  of  all  actions  to  determine  title  to  goods  held  by  the 
trustee  as  property  belonging  to  the  bankrupt,'*  and  trover  not  being  a  possessory 
action  may  be  maintained  against  trustees  in  bankruptcy  in  the  state  court,*' 
but  replevin  cannot  be  maintained."  Proceedings  in  suits  brought  by  the  trustee 
in  the  district  court  against  third  parties,  of  which  the  federal  court  would 
riot  have  had  jurisdiction  except  on  consent,  cannot  be  reviewed  by  the  circuit 
court  of  appeals  on  petition,^^  but  only  by  appeal.** 

§  13.  Rights  of  trustee  in  pending  actions  hy  and  against  hankrupt;  juris- 
diction of  state  courts. — Any  cause  of  action  which  would  survive  a  deceased 
plaintiff  will  pass  to  his  trustee,*®  and  where  rights  sought  to  be  enforced  in  pend- 
ing actions  passed  to  the  trustee,  the  bankrupt's  right  to  prosecute  terminates,'^'' 
even  though  the  action  was  not  scheduled,^^  and  the  adoption  of  the  bankrupt's 
pleading  or  the  filing  of  a  pleading  therein  by  his  trustee  makes  the  latter  a  party 
to  the  action.''^  A  default  against  a  bankrupt  may,  on  application  of  his  trustee, 
be  opened  at  the  term  succeeding  the  term  at  which  it  was  entered."  The  juris- 
diction of  state  courts  in  pending  actions  on  claims  which  will  be  released  by 
a  discharge  of  the  defendant  is  ousted  by  his  bankruptcy,  except  for  the  purpose 
of  staying  the  action,^*  and  the  state  court  is  the  proper  court  to  stay  the  suit," 
either  on  petition  of  the  defendant  or  by  his  creditors;^*  but  this  does  not  apply 
to  actions  commenced  prior  to  the  passage  of  the  bankruptcy  act,^^  or  to  actions 
to  enforce  valid  liens  acquired  against  a  bankrupt's  property  prior  to  the  filing 
of  the  petition  in  bankruptcy,'^  or  to  actions  to  try  title,'®  though  the  creditor  proved 
up  his  claim.** 

§  14.  Management  of  the  property  and  reduction  to  money. — The  estate 
funds  should  be  deposited  to  the  credit  of  the  trustee  as  such  designating  the 
estate,*^  and  on  failure  of  the  trustee  to  so  deposit  them  and  to  pay  out  in  the 
manner  prescribed  by  the  rules,  he  will  not  be  allowed  therefor.*^  Checks  drawn 
by  the  trustee  in  payment  of  dividends  made  payable  to  the  persons  whose  names 
are  not  on  the  dividend  sheet  and  which  do  not  show  what  claims  are  covered  or 
authoritv  of  payee  to  receive  them  are  not  such  vouchers  as  will  be  approved.*' 


63.  In  re  Tune,  115  Fed.  906. 

64.  Truda  v.  Osgood,  71  N.  H.  185;  Cooke 
V.  Scovel   (N.  J.  Law)   53  Atl.   692. 

05.     Weeks  V.  Fowler,  71  N.  H.  518. 

66.  Weeks  v.  Fowler,  71  N.  H.   221. 

67.  Power  to  review  by  original  petition 
extends  only  to  orders  made  in  bankruptcy 
proceedings — In  re  Rusch  (C.  C.  A.)  116  Fed. 
270. 

68.  Stelling  v.  G.  W^.  Jones  Lumber  Co. 
(C.  C.  A.)  116  Fed.  261;  Walter  Scott  &  Co.  v. 
Wilson  (C.  C.  A.)   115  Fed.  2S4. 

69.  Bankruptcy  Act  1898,  §  70 — Cleland  v. 
Anderson  (Neb.)   92  N.  W.  306. 

70.  Scruby  v.  Norman.  91  Mo.  App.  517; 
Scheldt  V.  Goldsmith,  103  111.  App.  623. 

71.  Scruby  v.   Norman.   91  Mo.   App.   517. 

72.  If  the  defendant  has  not  filed  an  an- 
swer and  the  bankrupt  files  an  answer  pur- 
porting to  adopt  the  answer  of  the  defend- 
ant, though  no  verdict  Is  rendered  against 
the  trustee,  judgment  may  be  entered  against 
him — Kingsbury  v.  Waco  State  Bank  (Tex. 
Civ.  App.)   70  S.  W.  551. 

73.  Though  under  Iowa  Code,  §  3790,  a  de- 
fault can  be  opened  only  on  application  be- 
ing made  at  the  same  term,  since  the  appli- 
cation by  the  trustee  is  an  intervention  In 
behalf  of  creditors — First  Nat.  Bank  v.  Flynn 
(Iowa)   91  N.  W.   784. 


74.  Bankruptcy  Act,  §  11a — First  Nat.  Bank 
V.  Flynn  (Iowa)  91  N.  W.  784;  In  re  Tune.  115 
Fed.  906.  The  state  court  cannot  set  aside  a 
sale  under  the  attachment  and  order  a  re- 
sale on  proceedings  instituted  by  a  junior 
attaching  creditor — Levi  v.  Goldberg  (N.  Y.) 
76  App.  Dlv.  210.  Judgment  cannot  be  en- 
tered after  the  petition  has  been  filed — First 
Nat.  Bank  v.  Flynn  (Iowa)  91  N.  W.  784. 
Holding  contra — State  v.  Superior  Ct.  of  King 
County,  28  Wash.  35.  68  Pac.  170. 

75.  Mclntyre  v.  Malone  (Neb.)  91  N.  W. 
246. 

76.  Mclntyre  v.  Malone  (Neb.)  91  N.  W. 
246. 

77.  Creditor's  action  to  avoid  a  fraudulent 
conveyance  against  the  bankrupt — Metcalf  v. 
Barker,  187  U.  S.  165;  Pickens  v.  Roy,  187  U. 
S.  177. 

78.  Creditor's  action — National  Bank  of 
Republic  of  N.  Y.  v.  Hobbs,  118  Fed.  626; 
South  End  Improvement  Co.  v.  Harden  (N.  J. 
Ch.)    52  Atl.   1127. 

79.  In  re  Wells.  114  Fed.  222. 

80.  Pickens  v.  Roy,  187  U.  S.  177. 

81.  In  re  Carr,  117  Fed.  572. 

82.  In  re  Hoyt,  119  Fed.  987. 

83.  In  re  Carr.  116  Fed.  556. 


g  loA 


CLAIMS  AND  ALLrOWANCB, 


327 


Sale  hy  trustee. — Property  of  a  bankrupt  subject  to  liens  may  be  sold  free 
from  such  liens  and  the  rights  thereunder  be  transferred  to  the  proceeds.®*  Under 
act  1867,  a  trustee  had  authority  to  sell  the  bankrupt's  real  property  witho^it 
order  of  the  court/'*  and  a  voluntary  bankrupt  had  the  right  to  purchase  hia 
property  at  the  trustee's  sale,^^  and  the  assignee's  deed  conveyed  title  though 
not  under  seal.®^  All  the  rights  of  a  trustee  pass  to  his  purchaser  at  a  sale 
under  order  of  the  court.*®  A  purchaser  of  interests  in  certain  transferred  contracts, 
which  transfer  was  void  as  a  preference,  has  a  cause  of  action  therefor.®^  The 
failure  of  a  seller  of  chattels  to  a  bankrupt  tn  demand  a  separate  sale  of  such 
chattels  at  a  sale  by  the  trustee  of  the  purchaser  is  a  waiver  of  his  lien  thereon.^" 
An  agreement  by  lienors  to  submit  the  priority  of  their  liens  for  adjudication  and 
no  sale  of  the  property  be  made  until  such  adjudication,  is  a  waiver  of  objections 
to  a  sale  free  from  their  liens  ;®^  and  by  so  consenting  they  are  estopped  to 
question  the  validity  of  the  sale.®^  A  trustee  waives  his  right  to  question  the 
validity  of  a  mortgage  by  selling  the  property  subject  to  the  mortgage.*'  A 
subsequent  offer  of  a  better  price  than  realized  at  the  sale  will  not  alone  warrant 
setting  it  aside.®*  To  prevent  a  resale  of  property  where  the  trustee  had  pur- 
chased at  his  own  sale,  it  is  sufficient  to  account  for  the  value  of  the  property 
as  of  the  time  of  the  purchase,  where  it  appears  that  it  had  not  increased  in  value.®* 
The  undisclosed  agency  of  a  bidder  at  a  public  auction  sale  by  a  trustee  in 
bankruptcy  to  whom  the  property  was  struck  off,  which  if  it  had  been  known  to 
others  they  would  have  bidden  a  better  price  held  sufficient  ground  to  avoid  the 
sale.®" 

§  15.  Claims  against  the  estate  and  proof  and  allowance.  A.  Claims  prov- 
able.— Since  only  claims  absolutely  due  at  the  time  of  the  petition  are  provable,  at- 
torney's fees  stipulated  in  an  unmatured  note,®'^  or  a  claim  for  damages  for 
breach  of  covenants  occurring  subsequent  to  the  filing  of  the  petition,'®  cannot  be 
proved.  The  decisions  on  the  question  whether  the  bankruptcy  of  a  tenant  ter- 
minates the  lease  and  whether  rent  subsequently  accruing  can  be  proved  are  conflict- 
ing as  will  appear  from  the  footnotes.®*     A  claim  for  damages  for  breach  of  an 


84.  In  re  Waterloo  Organ  Co.,  TlS  Fed. 
904.  An  order  directing  a  sale  but  "without 
prejudice  to  the  rights  of  lien  creditors  to 
claim  from  a  fund  derived  from  sale  amount 
of  their  respective  liens"  is  proper  and  fully 
protects  the  loaners'  right  and  they  need  not 
except  to  the  return  of  the  sale — Geo.  Carroll 
&  Bro.  Co.  V.  Young  (C.  C.  A.)  119  Fed.  576. 
Where  the  mortgage  covered  the  mortgagor's 
property  together  with  whatever  property  he 
may  subsequently  acquire  and  It  w^as  de- 
termined by  the  referee  in  bankruptcy  the 
amount  of  property  which  the  mortgagor 
owned  at  the  time  of  the  execution  of  the 
mortgage  but  not  the  validity  of  the  latter 
as  to  the  after  acquired  property,  a  sale  may 
be  made  of  the  property  free  from  all  liens, 
the  lien  to  be  transferred  to  the  proceeds  and 
in  case  of  purchase  by  the  mortgagee  he  will 
be  required  to  give  the  trustee  of  the  bank- 
rupt mortgagor  security  to  pay  the  value  of 
the  property  subsequently  foiioad  not  sub- 
ject to  the  iien — In  re  Waterloo  Organ  Co., 
118  Fed.  904.  A  trustee  who  held  the  prop- 
erty under  trust  mortgage  to  secure  bond- 
holders of  the  bankrupt  and  who  purchased 
the  property  at  the  trustee's  sale,  the  lien 
being  transferred  to  proceeds,  permitted  to 
give  bond  for  the  purchase  price — In  re 
Waterloo  Organ  Co.,  118  Fed.  904. 

85.  Hallyburton  v.  Slagle,  130  N.  C.  482. 


Hallyburton  v.  Slagle,  130  N.  C.  482. 
Westfelt  V.  Adams,  131  N.  C.  379. 
Bryan  v.  Madden  (N.  T.)  38  Misc.  Rep. 


86. 

87. 
88. 
638. 

89.  Complaint  in  an  action  by  the  pur- 
chaser's grantee  to  set  aside  the  transfer  as 
in  fraud  of  creditors  held  sufficient — Bryan 
V.  Madden   (N.  Y.)   38  Misc.  Rep.  638. 

90.  In  re  Klapholz,  113  Fed.  1002. 

91.  Chauncey  v.  Dyke  Bros.  (C.  C.  A.)  119 
Fed.  1. 

92.  Chauncey  v.  Dyke  Bros.  (C.  C.  A.)  119 
Fed.  1. 

93.  O'Neil  v.  International  Trust  Co. 
(Mass.)   66  N.  E.   424. 

94.  In  re  Ethier,   118  Fed.  107. 

95.  In  re  Hawley,  117  Fed.  364. 

96.  In  re  Ethier,  118  Fed.  107. 

97.  In  re  Garlington,  115  Fed.  999. 

98.  Bankruptcy  Act,  §  63 — In  re  Pennewell 
(C.  C.  A.)   119  Fed.  139. 

99.  The  adjudication  of  a  lessee  bankrupt 
does  not  of  itself  terminate  the  lease — In  re 
Pennewell  (C.  C.  A.)  119  Fed.  139;  Wood- 
worth  V.  Harding  (N.  Y.)  75  App.  Div.  54. 
Contra — In  re  Hays,  Foster  &  Ward  Co.,  117 
Fed.  879.  A  claim  for  rent  accruing  after 
the  adjudication  (Bernhardt  v.  Curtis,  109 
La.  171),  though  the  bankrupt  executed 
notes  therefor,  cannot  be  proved — In  re  Hays, 
Fo.=;ter    &    Ward   Co.,    117   Fed.    879.      A   st^.tu- 


328 


BANKRUPTCY. 


§15B 


executory  contract  may  be  proved  though  the  time  for  full  performance  had 
not  expired.^  A  claim  under  a  contract  based  on  several  elements,  some  of  which 
are  unliquidated,  cannot  be  proved  until  liquidated.^^  One  who  holds  a  claim 
against  a  bankrupt  under  an  assignment*  in  such  form  as  would  estop  the  as- 
signor from  avoiding  it,  may  prove  the  claim.*  A  claim  acquired  by  the  wife 
of* the  bankrupt  by  subrogation  may  be  proved  against  his  estate,"^  or  a  claim  for  her 
separate  property  which  entered  into  the  estate,"  and  a  final  Judgment  for  alimony 
may  be  proved.''  A  claim  barred  by  the  statute  of  limitations  though  scheduled 
by  the  bankrupt,"  or  a  judgment  against  the  bankrupt  which  has  abated,^  or  a 
claim  which  claimant  is  enforcing  by  attachment  proceedings  in  a  state  court 
cannot  be  proved."  The  consideration  paid  for  a  transfer  of  property  made  with 
intent  to  defraud  creditors  cannot  be  made  the  basis  of  a  claim  against  the 
estate."    A  claim  for  local  taxes  may  be  proved." 

A  contract  executed  by  individual  members  of  a  partnership  cannot  be  proved 
against  the  estate  of  the  partnership  in  bankruptcy."  That  the  claimant  entered 
into  a  void  agreement  of  partnership  will  not  affect  his  right  to  prove  a  previous 
existing  claim  against  the  firm."  If  the  partnership  assets  were  exhausted  before 
bankruptcy  and  before  individual  debts  of  the  partners  were  contracted,  the  part- 
nership creditors  are  entitled  to  share  ratably  with  the  individual  creditors  in 
the  individual  assets  of  the  partners,"  or  after  the  dissolution  and  a  sale  of  the 
partnership  property,  a  partnership  creditor  may  share  in  the  estate  of  the  partner 
subsequently  declared  a  bankrupt,  where  it  does  not  appear  that  there  is  a  solvent 
partner  or  that  other  equities  exist  in  favor  of  individual  creditors." 

B.  Proof  of  claims. — Amendment  of  proof  of  claims  is  granted  with  great  liber- 
ality," and  may  be  made  after  the  expiration  of  the  year  allowed  for  proving  claims, 


tory  Hen  given  a  landlord  on  goods  and 
chattels  of  the  tenant  as  against  creditors 
for  rent  for  the  unexpired  term  may  be  en- 
forced— In  re  Mitchell,  116  Fed.  87.  If  the 
landlord  of  a  bankrupt  tenant  under  a  lease 
for  a  term  of  years  containing  a  stipulation 
that  If  the  lessee  should  become  a  bankrupt, 
the  whole  rent  for  the  whole  term  shall  be 
taken  to  be  due  and  payable  forthwith,  de- 
sires to  avail  himself  of  such  stipulation  for 
the  purpose  of  securing  a  preference  for  one 
year's  rent,  he  is  bound  to  conform  to  the 
contract  as  a  whole,  and  if  he  attempts  to 
secure  such  a  preference  and  at  the  same 
time  retain  his  Interest  as  landlord  unim- 
paired in  the  residue  of  the  term  by  taking 
exclusive  possession  of  the  premises,  he  was 
properly  allowed  rent  due  at  the  time  of  the 
filing  of  the  petition  in  bankruptcy  as  a  pre- 
ferred debt  under  the  state  statute  and  also 
the  rental  rate  during  the  time  the  trustee 
retained  possession — Wilson  v.  Pennsylvania 
Trust  Co.   (C.  C.  A.)   114  Fed.  742. 

1.  The  amount  of  damages  being  readily 
ascertainable— In  re  Stern  (C.  C.  A.)  116 
Fed    604;  Appeal  of  Manhattan  Ice  Co.,  Id. 

a.  Bankruptcy  Act,  §§  57b  and  63b  (5) — In 
re  Big  Meadows  Gas  Co.,   113  Fed.  974. 

S.     In  re  Miner.  114  Fed.  998. 

4.  The  assignor's  certificate  in  record  stat- 
ing* the  assignment  is  sufficient  within  the 
statute  of  frauds  and  to  estop  the  assignor— 
In  re  Miner,  117  Fed.  953. 

5.  As  surety  for  him  she  had  paid  the 
debt  it  not  being  a  contract  between  the 
hustiand  and  wife  In  violation  of  the  Mass. 
Statutes— In  re  Nickerson.  116  Fed.  1003 
"Wife    held    to    have    acquired    her    bankrupt 


husband's  notes  given  to  her  testator,  by 
subrogation  where  by  the  will  she  was  not 
to  share  in  the  decedent's  estate  if  her  hus- 
band was  indebted  to  deceased  and  where  she 
acquired  the  notes  as  a  part  of  her  share  of 
the  estate — In  re  Nickerson,  116  Fed.  1003. 

6.  Though  she  did  not  register  the  claim 
as  such  under  the  Oregon  statutes  since  the 
register  thereof  is  not  conclusive  either  way 
as  to  her  right — In  re  Miner,  117  Fed.   953. 

7.  Arrington   v.    Arringtou,    131    N.    C.    143. 

8.  In  re  Wooten,  118  Fed.  670.  Holding 
contra — In  re  Gibson   (Ind.  T.)   69  S.  W.  974. 

9.  In  re  Farmer.  116  Fed.  763. 

10.  Buckingham  v.  Schuylkill  Plush  & 
Silk  Co.  (N.  Y.)  38  Misc.  Rep.  305;  Matter  of 
O'Donnell,  Id. 

11.  In  re  Lansaw.  118  Fed.  365;  Johnson  v. 
Cohn   (N.  Y.)   39  Misc.  Rep.  189. 

13.     The  assets  are  subject  to  taxes  in  the 
district   where    they    would    have   been   taxed 
had   not   bankruptcy  proceedini 
tuted.       Bankruptcy    Act    1898,    § 
Sims,  118  Fed,  356. 

13.  Chattel    Mortgage — In    re 
Fed.    431.      Nothing  appearing  on 
the  note,  to   indicate  that  it  was  given  for  a 
partnership   debt — In   re  Jones,   116   Fed.    431. 

14.  Ultra  vires  contract  of  partnership  by 
corporation  with  existing  firm — In  re  R.  T. 
Ervin  &  Co.,  114   Fed.  596. 

15.  In  re  Conrader,  118  Fed.  676. 

16.  Bankruptcy  Act  1898,  §  5.  does  not  ap- 
ply where  a  partner  became  bankrupt  after  a 
dissolution  of  partnership  and  a  sale  of  Its 
property — In  re  Greene,  116  Fed.  118. 

17.  In  re  Moebi\is.  116  Fed.  47. 


been   insti- 
64a — In    re 


Jones,    116 
the  face  of 


§  15U  CLAIMS  AND  ALLOWANCE.  339 

if  there  is  sufficient  to  amend  by  in  the  original  proof/'  but  not  if  it  in  effect 
will  be  an  allowance  of  proof  after  such  tinie.^®  Since  a  payment  to  a  secured 
creditor  is  not  a  payment  of  a  dividend,-*'  it  is  not  necessary  that  such  a  creditor 
prove  his  claim  before  intervening  for  the  purpose  of  establishing  a  lien  on  a 
particular  fund,^^  and  he  need  only  prove  his  claim  as  in  an  ordinary  suit/^  though 
a  failure  of  the  secured  creditor  to  present  his  claim  will    not  release  the  surety.-^ 

C.  Contest  of  claims. — It  is  the  duty  of  a  trustee  to  plead  the  state  statute 
of  limitations  against  a  debt  scheduled  by  the  bankrupt.^*  Creditors  whose  claims 
have  not  been  allowed  cannot  contest  the  claims  of  others.^''  All  objections  to 
claims  should  be  specific/®  but  it  is  not  necessary  that  they  be  verified  by  oath.*^ 
Failure  of  a  creditor  to  object  to  the  allowance  of  claims  is  a  waiver  of  a  right  to  a 
re-examination  thereof  on  the  ground  of  preferences  received/^  but  the  failure  on 
the  part  of  a  trustee  to  contest  a  claim  when  presented  will  not  bar  his  action 
to  avoid  it  as  a  preference/®  nor  is  the  allowance  of  the  claim  by  the  referee  con- 
clusive as  against  him.^"  The  bankrupt's  attorney  should  not  act  for  a  creditor 
whose  claim  is  contested.'^  A  creditor  has  the  burden  of  proving  his  claim,  if  ob- 
jected to,  by  a  preponderance  of  evidence,*^  and  proof  that  it  arose  in  a  different 
manner  from  that  stated  in  the  verified  claim  is  insufficient  to  support  it.^^  As 
evidence  of  the  existence  and  amount  of  the  claim,  a  judgment  of  a  state  court 
is  not  conclusive  until  the  expiration  of  the  time  of  right  of  appeal  therefrom.'* 
In  estimating  the  amount  of  a  claim  for  conversion  of  goods,  their  value  at  the 
time  of  the  filing  of  a  petition  in  bankruptcy  may  be  taken.''* 

D.  Surrender  of  preferences  and  effect  thereof. — A  preferential  transfer  must 
be  surrendered  before  the  creditor  can  prove  any  of  his  several  claims  of  the  same 
class,'^  whether  the  claim  is  made  by  the  creditor  or  his  transferee.'^  The  holder 
of  two  series  of  obligations  made  by  the  bankrupt,  who  received  a  preferential 
pa}Tnent  on  the  second  series,  cannot  prove  the  first  until  he  shall  have  sur- 
rendered such  payment.^*  On  surrender  of  preferential  payments  by  the  claimant, 
the  creditor  will  be  allowed  the  full  amount  of  his  valid  claim.'®  A  claim  for  a 
balance  due  on  a  current  account  is  a  single  claim  wliich  can  be  divided  into 
separate  claims  in  determining  a  preference.*"  It  is  the  duty  of  the  trustee  to 
institute  such  proceedings  against  a  creditor  who  held  unsurrendered  collateral 
security  as  he  may  deem  best  or  on  advice  of  counsel  or  creditors,*^  and  the  court 


18.  Hutchinson  V.  Otis  (C.  C.  A.)  115  Fed. 
937;  In  re  Hutchinson,  Id. 

19.  In  re  Moetaius.  116  Fed.  47. 

20.  In  re  Goldsmith,  118  Fed.  763. 

21.  In  re  Goldsmith.  118  Fed.  763. 

22.  He  Is  not  required  to  follow  Bank- 
ruptcy Act  1898,  §  57 — In  re  Goldsmith,  118 
Fed.  763. 

23.  Levy  V.  Wagner  (Tex.  Civ.  App.)  69  S. 
W.  112. 

24.  In  re  "Wooten,  118  Fed.  670. 

25.  Dressel  v.  North  State  Lumber  Co.,  119 
Fed.   531. 

26.  In  re  "Wooten,  118  Fed.  670. 

27.  In  re  Wooten,  118  Fed.  670. 

28.  In  re  Hamilton  Furniture  Co.,  116  Fed. 
115. 

29.  Buder  v.  Columbia  Distilling'  Co.,  96 
Mo.  App.  558. 

30.  Buder  v.  Columbia  Distilling  Co.,  96 
Mo.  App.  558. 

31.  In  re  Wooten,  118  Fed.  670. 

32.  Evidence  that  the  claimant  Is  a  near 
relative  of  the  bankrupt  will  be  given  the 
eame    weight    as    In    ordinary    cases — In    re 


Wooten,  118  Fed.  670.  Evidence  held  Insuf- 
ficient to  support  a  claim  presented — In  re 
Grant,  118  Fed.  73. 

33.  In  re  Lansaw,  118  Fed.  365. 

34.  In  re  Freeman,  117  Fed.  680. 

35.  The  time  of  the  conversion  of  corpo- 
rate stock  purchased  by  bankrupt  brokers 
for  a  customer  being  uncertain — In  re  Graff, 
117  Fed.   343. 

36.  Swarts  v.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed.  1. 

37.  Swarta  v.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed.  1. 

38.  Swarts  V.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed.  1. 

39.  Swarts  v.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed.  1.  If  the  amount  paid  by  the  sure- 
ty, together  with  the  dividends,  amounts  to 
more  than  the  obligation,  the  creditor  will 
hold  the  surplus  in  trust  for  the  surety — 
Swarts  V.  Fourth  Nat.  Bank  (C.  C.  A.)  117 
Fed.  1. 

40.  Kimball  v.  E.  A.  Rosenham  Co.  (C.  C. 
A.)  114  Fed.  85;  C.  S.  Morey  Mercantile  C«. 
V.  Schiffer  (C.  C.  A.)  114  Fed.  447. 

41.  In  re  Baber,  119  Fed.  520. 


330 


BANKRUPTCY. 


§    15K 


will  not,  nor  should  the  referee,  entertain  a  petition  by  him  asking  for  advice." 
Creditors  who  had  without  fraud  received  preferences  which  were  not  surrendered 
may  prove  their  claims  against  the  surplus  remaining  after  payment  of  all  uu- 
preferred  creditors  in  full.*' 

Credits  given  before  preferential  payments  are  not  available  as  a  set-off 
against  such  payments,**  but  only  such  credits  thereafter  extended  for  property 
which  subsequently  became  a  part  of  the  assets  will  be  allowed,"  though  the 
property  transferred  is  not  recoverable  by  the  trustee  as  a  preference  under  section 
GOb,  and  though  the  creditor  had  not  ground  to  believe  that  the  transfer  was  intended 
as  a  preference,*®  and  this  is  not  limited  to  a  case  where  the  trustee  sues  to  recover 
the  preference.*^  Accepting  the  bankrupt  as  a  debtor  by  having  him  assume  the 
liability  and  take  the  goods  sold  to  another  in  consideration  of  a  part  payment 
therefor  is  not  extending  credit,  which  could  be  set  off  against  a  preferential  pay- 
ment to  the  creditor.**  Goods  transferred  to  the  bankrupt  who  assumed  liability 
therefor  to  the  original  seller  are  not  property  passing  to  the  bankrupt's  estate, 
the  liability  for  which  is  available  as  a  set-off  against  a  preferential  payment.*^ 

E.  Priorities. — The  rights  of  creditors  to  share  in  the  estate  will  be  determined 
by  the  status  of  their  claims  at  the  time  the  petition  was  filed,^"  and  the  test  of  clas- 
sification of  claims  is  the  percentage  that  they  will  receive  from  the  estate." 
Creditors  secured  by  indorsement  or  guaranty  of  third  persons  will  share  the 
same  as  unsecured  creditors."  Trust  funds  held  by  the  bankrupt,"  and  a  lien  for 
wa<^es  given  by  a  state  statute  though  not  earned  within  three  months  previous 
to  the  commencement  of  the  bankruptcy  proceedings  are  entitled  to  priority.^* 
Bankruptcy  Act,  §  5b,  providing  that  if  one  partner  only  is  adjudged  a  bankrupt, 
the  partnership  property  shall  not  be  administered  in  bankruptcy  except  on  consent 
of  the  other  partners,  has  no  application  to  a  case  where  a  partner  sold  out  before 
the  remaining  partner's  bankruptcy,"  and  in  such  case  the  partnership  property  at 
the  time  of  the  dissolution  should  be  first  applied  to  the  payment  of  firm  creditors 
and  the  bankrupt's  separate  estate  should  be  applied  first  to  the  payment  of  his 
separate  debts  and  any  surplus  from  either  source  should  be  distributed  according 
to  the  bankruptcy  act."     A  claim  for  taxes  against  a  partnership  is  entitled  to 


42.  In  re  Baber.  119  Fed.  ff20. 

43.  In  re  Morton,  118  Fed.  908. 

44.  Carleton  Dry  Goods  Co.  v.  Rogers  (C. 
C.  A.)   120  Fed.  14. 

45.  Gans  V.  Ellison  (C.  C.  A.)  114  Fed.  734. 

46.  C.  S.  Morey  Mercantile  Co.  v.  Schiffer 
(C.  C.  A.)   114  Fed.  447. 

47.  Kahn  v.  Cone  Export  &  Commission 
Co.   (C.  C.  A.)  115  Fed.  290. 

48.  Carleton  Dry  Goods  Co.  v.  Rogers  (C. 
C.  A.)  120  Fed.  14. 

49.  Carleton  Dry  Goods  Co.  v.  Rogers  (C. 
C.  A.)   120  Fed.  14. 

50.  Swarts  V.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed.  1.  Facts  held  to  show  that  a  cred- 
itor had  waived  his  lien  on  a  particular  fund 
bv  mistake  and  M^as  entitled  to  have  it  re- 
stored— In  re  Hutchinson  (C.  C.  A.)  115  Fed. 
937. 

51.  Swarts  V.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed.  1. 

52.  Swarts  v.  Fourth  Nat.  Bank  (C.  C.  A.) 
117  Fed.  1. 

53.  Under  Ky.  Sts.  and  Bankruptcy  Act 
1898,  §  64b.  cl.  5.  giving  priority  to  "debts 
owing  by  any  person  who  by  the  laws  of  the 
state  or  the  United  States  is  entitled  to  pri- 
ority" and  funds  held  as  guardian  are  with- 
in   the   above    statute — In   re  Crow,    116    Fed. 


110.  The  party  claiming  that  a  part  of  the 
estate  in  the  hands  of  the  trustee  was  a  trust 
fund  has  the  burden  of  proving  that  the  fund 
in  some  form  was  a  part  of  the  estate  when 
It  passed  to  the  trustee — In  re  O'Connor,  114 
Fed.  777;  In  re  Globe  Refinery  Co..  Id.  It 
was  presumed  that  the  balance  of  the  pro- 
ceeds of  corporate  stock,  sold  by  a  pledgee 
of  bankrupt  stockbrokers  who  had  pur- 
chased a  part  of  the  stock  pledged  for  a 
customer  and  which  had  been  fully  paid  for 
by  the  latter,  was  the  proceeds  of  the  cus- 
tomer's stock  and  that  he  was  entitled  there- 
to as  against  the  bankrupt  and  the  general 
creditors — In  re  Graff.  117  Fed.  343.  From 
the  facts  it  was  presumed  that  a  part  of  cor- 
porate stock  sold  by  the  receiver  of  bankrupt 
stockbrokers  was  bought  for  a  customer 
who  had  paid  for  the  same  who  was  entitled 
to  the  proceeds  in  the  trustee's  hands  as 
against  creditors — In   re   Graff,    117   Fed.    343. 

54.  Bankruptcy  Act,  §  64b  (4).  gives  pri- 
ority of  wages  earned  within  three  months 
before  the  date  of  the  commencement  of  the 
proceedings.  (5)  provides  that  debts  owing 
to  any  person  who  by  the  laws  of  the  states 
or  of  the  United  States  is  entitled  to  priority 
— In  re  Slomka,  117  Fed.  688. 

55.  In  re  Denning.  114  Fed.   219. 

56.  In  re  Denning,  114  Fed.  219. 


^  15E 


CLAIMS  AND  ALLOWANCE. 


331 


priority  of  payment  from  the  estate  of  the  bankrupt  partners."  A  trustee  may 
oppose  a  petition  by  a  creditor  to  be  awarded  a  lien  on  certain  assets  in  his  hands 
without  pleading  thereto." 

The  bankruptcy  court  has  jurisdiction  to  determine  priorities  between  liens 
on  the  bankrupt's  property  in  its  custody/^  and  lienors  who  had  not  proved  their 
claims,  but  who  agreed  that  the  priority  of  their  liens  be  submitted  and  that  no 
sale  be  made  until  the  adjudication  thereby  confer  jurisdiction  to  determine  how 
the  proceeds  of  the  sale  be  distributed  among  rival  claimants.^" 

F.  Expenses  of  the  proceeding. — The  referee  will  not  be  allowed  for  notices 
sent  to  creditors  in  general  on  the  re-examination  of  a  claim,^^  or  where  no  dis- 
tribution of  money  requiring  notice  to  creditors  has  ever  been  had/^  or  for  investi- 
gation and  finding  in  the  ordinary  and  usual  way  in  cases  of  specific  liens,®^  or  for 
expenses  of  a  stenographer  not  employed  on  application  of  the  trustee  and  in  the 
absence  of  stipulation  or  deposit  of  money  therefor.®*  Secured  claims  or  claims 
entitled  to  priority  of  payment  are  not  dividends  within  the  bankruptcy  act  on 
which  a  referee  is  entitled  to  commission,"  Fees  in  addition  to  statutory  fees 
cannot  be  allowed  referees  even  with  the  consent  of  the  attorneys  for  the  parties."*' 
In  allowing  a  trustee  commissions  for  selling,  the  court  will  follow  the  rules  of  al- 
lowance in  cases  of  masters'  commissions,*^  and  dividends  on  which  he  will  be  al- 
lowed commissions  are  the  surplus  remaining  after  the  payment  of  taxes  and 
priority  claims  in  full.®*  The  clerk,  referee,  and  trustee  in  bankruptcy  are  en- 
titled to  separate  fees  to  be  charged  against  the  estate  of  each  of  the  petitioning  part- 
ners as  well  as  against  the  partnership  estate  seeking  discharge  from  individual  as 
well  as  firm  liabilities.®'  The  allowance  by  a  referee  of  fees  to  himself  and  the 
trustee  may  be  reviewed  on  the  final  settlement  of  the  estate,  where  they  have  not 
been  passed  upon  by  the  district  judge  or  court,^**  The  allowance  of  attorney's  fees 
out  of  the  estate  is  within  the  discretion  of  the  court,^^  and  if  petitionino-  creditors 
refuse  to  pay  the  fee  and  he  is  entitled  thereto,  the  court  will  allow  it  out  of  the 
fund,^^  but  they  will  not  be  allowed  where  the  attorneys  make  an  exorbitant  charge 
therefor,  even  though  recommended  by  the  referee,"  or  where  the  attorney  was  also 
appointed  trustee.''* 


57.  Iowa  Code,  §  1307,  provides  that  "any 
Individual  of  a  partnership  Is  liable  for  taxes 
due  for  the  firm" — In  re  Green,  116  Fed.  118. 

58.  In  re  Mulligan,  116  Fed.  715. 

59.  Chauncey  v.  Dyke  Bros.  (C.  C.  A.)  119 
Fed.  1.  It  may  enforce  a  lien  given  by 
stock  exchang-e  rules  to  members  for  debts 
due  from  a  defaulting  member  on  the  pro- 
ceeds of  his  seat  by  proving'  their  claims  to 
a  committee  while  the  fund  remains  in  their 
hfinds — Hutchinson  v.  Otis  (C.  C.  A.)  115  Fed. 
937. 

60.  Chauncey  v.  Dyke  (C.  C.  A.)  119 
Fed.  1. 

61.  In  re  Mammoth  Pine  Lumber  Co.,  116 
Fed.  731. 

62.  In  re  Mammoth  Pine  Lumber  Co.,  116 
Fed.  731. 

63.  In  the  absence  of  a  provision  In  the 
bankruptcy  act  or  general  orders — In  re 
Mammoth  Pine  Lumber  Co..  116  Fed.  731. 

64.  Bankruptcy  Act,  §  38a,  el.  5,  Gen.  Or- 
der No.  10 — In  re  Mammoth  Pine  Lumber  Co., 
116  Fed.  731. 

65.  Bankruptcy  Act,  §§  40a,  48a,  64a,  64b 
and  65a — In  re  Mammoth  Pine  Lumber  Co., 
116  Fed.  731. 

66.  Dressel  v.  North  State  Lumber  Co.,  119 
Fed.  531. 


67.  In  re  Mammoth  Pine  Lumber  Co.,  116 
Fed.  731. 

68.  §§  40a.  48a,  64a,  64b  and  65a. — In  re 
Mammoth  Pine  Lumber  Co.,  116  Fed.  731 

69.  In  re  Farley,  115  Fed.  359. 

70.  Bankruptcy  Act,  Gen.  Order,  No.  26— 
In  re  Mammoth  Pine  Lumber  Co.,  116  Fed 
731. 

71.  In  re  Carr,  117  Fed.  572. 

72.  Rule  for  allowance  of  attorneys'  fee.'? 
as  laid  down  by  the  District  Court  for  E.  D. 
N.  Carolina,  "For  preparing  petition  in  in- 
voluntary bankruptcy,  and  superintending' 
the  filing  thereof,  and  in  the  issuance  of  sub- 
poena thereon,  and  preparing  schedules,  in 
case  such  duty  falls  on  the  petitioning  cred- 
itors, a  fee  of  not  exceeding  $50,  in  the  dis- 
cretion of  the  court,  where  the  same  is  pay- 
able out  of  the  estate  of  the  bankrupt;  and 
no  further  fee  shall  be  allowed  such  attor- 
ney where  there  is  no  contest  or  trial  be- 
fore the  court  touching  the  adjudication  in 
bankruptcy;  and  in  case  the  defendant  there- 
in contests  the  adjudication,  necessitating  a 
trial  before  the  court  or  referee  of  such  is- 
sue, such  further  fee  as  the  court  may  find 
to  be  reasonable  in  the  particular  case.  And 
for  the  allowance  of  this  fee  the  attorney 
asking  for  such   fee   must   disclose   his  deal- 


332 


BANKRUPTCY. 


§15G 


G.  Expenses  of  receivers  and  assignees  appointed  prior  to  "bankruptcy  prO' 
ceedings.^A  claim  for  services  rendered  as  a  general  assignee  of  the  bankrupt  in 
the  preservation  of  his  estate  may  be  allowed,"  but  not  a  claim  for  commissions.^* 
Where  the  assets  of  a  bankrupt  in  the  hands  of  a  receiver  appointed  by  a  state  court 
had  not  been  converted  into  money,  the  receivership  and  attorne/s  fees  should 
be  made  the  basis  of  a  claim  in  the  bankrupt  court."  The  bankrupt's  assignee  by 
accepting  appointment  as  receiver  of  the  bankrupt's  estate  submits  the  fund  and 
his  right  to  compensation  as  assignee  to  the  jurisdiction  of  the  court  of  bank- 
ruptcy by  turning  over  to  himself  such  fund  as  receiver  vt^ithout  retaining  com- 
pensation," but  he  does  not  confer  jurisdiction  on  such  court  by  filing  his  account 
of  disbursements  within  four  months  of  the  adjudication  therein  for  allowance, 
where  he  objects  to  jurisdiction  before  the  entry  of  a  final  order." 

§  16.  Exemptions. — The  right  of  the  bankrupt  to  have  property  set  apart  as 
exempt  from  liability  will  be  determined  by  the  laws  of  the  state  of  his  residence,"* 
and  the  decisions  of  the  state  court  declaring  certain  specific  property  exempt  will 
be  followed.*^  The  particular  property,  however,  which  the  bankrupt  wishes  to 
retain  under  the  state  exemption  laws  must  be  set  up  in  his  schedule,®^  and  he  must 
follow  the  procedure  required  by  the  state  statute." 

The  bankrupt  may  claim  as  exempt  a  seat  in  a  stock  exchange,^*  or  property  not 
paid  for  bv  him  where  the  seller  had  no  lien  thereon,*''  or  the  proceeds  of  property 
which  had  been  assigned  by  him  for  the  benefit  of  his  creditors  in  the  hands 
of  his  trustee,*®  but  exemptions  cannot  be  claimed  out  of  property  recovered  by  the 
trustee  which  had  been  transferred  as  a  preference,"  nor  can  the  individual 
partners  of  a  firm  dissolved  within  four  months  prior  to  the  adjudication  against 
the  firm  claim  exemptions  in  the  firm  property."  The  debtor  loses  his  exemption 
rights  if  under  a  waiver  creditors  will  receive  the  benefit  thereof,*'  or  where 
he  had  made  a  fraudulent  disposition  of  his  property.®* 

A  building  occupied  chiefly  for  business  purposes  but  also  occupied  as  a 
residence  and  not  exceeding  the  statutory  value  limit  may  be  claimed  as  a  home-. 
stead.®^     The  debtor's  homestead  exemption  is  not  lost  because  he  changed   hir^ 


Ings  with  his  client,  that  the  court  may  act 
intelligently" — In  re  Carr.   117  Fed.  572. 

73.  In  re  Carr.  116  Fed.  556. 

74.  In  re  Evans.  116  Fed.  909. 

75.  In  re  Klein.  116  Fed.  523. 

76.  In  re  Mays,   114  Fed.   600. 

77.  Hanson  v.  Stephens  (Ga.)  42  S.  E.  1028. 

78.  In  re  Klein,  116  Fed.  523. 

79.  In  re  Klein,  116  Fed.  523;  In  re  Jack- 
son, 116  Fed.  46. 

80.  In  re  Staunton,  117  Fed.  507.  The 
bankrupt  may  select  as  part  of  his  exemp- 
tion, the  proceeds  of  property  sold  by  his 
assignee  for  the  benefit  of  creditors  before 
the  institution  of  the  bankruptcy  proceed- 
ings, since  under  the  laws  of  Pennsylvania 
he  may  select  articles  of  personal  property 
Including  cash — In  re  Staunton,  117  Fed.  507. 

81.  In  re  Stone.  116  Fed.  35. 

82.  In  re  Duffy,  118  Fed.  ?26. 

83.  Merely  claiming  the  benefit  of  the 
statute  held  Insufficient — In  re  Garner,  115 
Fed.  200. 

84.  Pennsylvania  court  decisions  so  hold- 
ing followed — Page  v.  Edmonds,  187  U.  S. 
596. 

85.  In  re  Butler,  120  Fed.  100. 

86.  In  re  Talbott,  116  Fed.  417. 

87.  In  re  Long,  116  Fed.  113.  But  where 
he  had  transferred  a  judgment   to  a  trustee 


for  certain  creditors,  and  the  trustee  did  nuc 
assume  ownership  and  it  was  paid  to  the 
trustee  in  bankruptcy  the  bankrupt  may  claim 
exemption  therein — Bashinski  v.  Talbott  (C 
C.  A.)    119  Fed.  337. 

S8.  Under  the  laws  of  Arkansas,  a  part- 
ner cannot  claim  exemptions  from  the  firm 
property — In  re  Head.  114  Fed.  489. 

80.     In  re  Garner,  115  Fed.  200. 

90.  In  re  Taylor,  114  Fed.  607;  In  re 
Evans,  116  Fed.  909.  As  where  he  carried 
on  a  bu.'Jiness  in  the  name  of  another  as 
agent,  and  nearly  all  the  indebtedness  was 
created  within  five  months  preceding  his 
bankruptcy  and  the  better  portion  of  the 
stock  was  sold  off  at  auction,  the  balance 
being  worth  less  than  the  exemption — In  re 
W^illiamson,  114  Fed.  190.  Sufficiency  of  evi- 
dence to  show  that  the  bankrupt  was  not 
chargeable  with  fraud  in  concealing  property 
from  creditors,  such  being  the  ground  of 
forfeiture  of  exemptions  under  Georgia  Code, 
§  2830 — In  re  Stephens,  114  Fed.  192;  In  re 
Boorstin,  114  Fed.  696;  In  re  Thompson,  115 
Fed.  924.  Evidence  held  insufficient  to  show 
a  fraudulent  disposition  of  property  by  a 
bankrupt  so  as  to  effect  a  forfeiture  of  his 
exemptions  under  the  state  law — In  re  Duffy, 
118    Fed.    926. 

91.  So  held  under  the  state  decisions — In 
re    Stone,    116    Fed.    35. 


§  18 


REFEREES  AND   PROCEEDINGS. 


333 


homestead  within  four  months  prior  to  the  adjudication  in  bankruptcy,®*  nor 
because  he  established  it  after  insolvency  and  in  contemplation  of  bankruptcy.®' 

Claims  enforceable  against  the  homestead  are  also  to  be  determined  by  the 
laws  of  the  state  of  the  debtor's  residence.®*  Court  costs  cannot  be  enforced  against 
the  bankrupt's  exemptions,®"^  nor  can  a  court  of  bankruptcy  subrogate  the  trustee 
to  the  right  of  a  creditor  who  had  acquired  a  lien  on  the  bankrupt's  exempt  prop- 
erty.®" 

If  the  trustee  failed  to  follow  the  statute  in  setting  aside  the  exemption  to 
which  the  bankrupt  is  entitled,  he  will  not  be  allowed  the  payment.®^  Where  no 
trustee  has  been  appointed,  the  bankruptcy  court  has  jurisdiction  to  set  apart  par- 
ticular property  belonging  to  the  bankrupt  as  exempt;®^  if  the  only  assets  of  a 
voluntary  bankrupt  were  exempt  and  there  was  no  necessity  for  the  appointment 
of  a  trustee,  the  court  still  had  jurisdiction  to  order  it  set  apart,®®  and  the  order 
relates  back  to  the  time  of  the  filing  of  the  petition,^  and  it  is  an  adjudication  that 
there  are  no  existing  liens  thereon.^ 

After  specific  property  has  been  set  apart  to  the  bankrupt  as  exempt  and  he 
has  taken  possession,  it  is  no  longer  within  the  jurisdiction  of  the  bankruptcy 
court,'  therefore  the  court  cannot  entertain  a  petition  after  the  discharge  of  the 
bankrupt  for  a  readjustment  of  the  exemptions,*  or  to  enforce  a  special  lien  against 
it,'*  or  a  lien  not  affected  by  the  bankrupt's  discharge.® 

§  17.  Death  of  banlrupt  pending  proceedings. — The  allowance  to  the  widow 
of  the  deceased  bankrupt  will  be  governed  by  the  laws  of  the  state  of  his  residence.'' 
On  the  death  of  the  bankrupt  after  a  determination  of  the  right  to  exemptions  in 
personalty,  but  before  the  same  had  been  set  apart,  the  property  to  be  set  apart 
passes  to  his  administrator  and  not  to  the  trustee.^ 

§  18.  Referees,  proceedings  before  them,  and  review  thereof. — Without  a  cer- 
tificate of  the  clerk  showing  inability  of  the  district  court  to  act  or  a  division  of  the 
district,  the  referee  has  no  jurisdiction  to  compel  a  state  officer  to  surrender  a  bank- 
rupt's property  by  summary  process.®     The  rules  of  equity  practice  of  the  federal 


92.  Huenergardt  v.  John  S.  Brittain  Dry 
Goods  Co.    (C.   C.  A.)   116  Fed.   31. 

93.  In   re   Stone.    116   Fed.    35. 

94.  In  Vermont  debts  existing  prior  to  the 
establishment  of  the  homestead  may  be  en- 
forced ag-ainst  It — In  re  Gordon,  115  Fed. 
445.  Where  the  bankrupt  had  transferred 
his  property,  taking'  a  promissory  note  there- 
for, on  his  application  to  have  the  proceeds 
of  the  note  set  apart  to  be  invested  in  a  new 
homestead,  it  will  be  charged  with  a  pro- 
portionate part  of  the  discount  of  the  note 
which  had  been  sold  by  the  bankrupt  and 
which  sale  was  accepted  by  the  trustee — In 
re  Johnson,  118  Fed.  312.  A  lien  unavoided 
by  the  discharge  in  bankruptcy  cannot  be 
enforced  against  the  property  set  apart  by 
the  bankrupt  court  as  exempt — Evans  v. 
Rounsaville,   115  Ga.    684. 

95.  In  re  Hines,   117   Fed.   790. 

96.  In    re    Rosenberg,    116    Fed.    402. 

97.  Bankruptcy  Act.  §  47,  subd.  11,  makes 
it  the  duty  of  the  trustee  to  set  aside  ex- 
emptions of  the  bankrupt  and  "report  the 
same  to  the  court" — In  re  Hoyt,  119  Fed. 
987. 

98.  Though  §  47  (11)  makes  It  the  duty  of 
the  trustee  to  set  it  apart — Smalley  v.  Laug- 
enour,  30  Wash.  307,  70  Pac.  786.  In  eject- 
ment brought  by  a  purchaser  under  execu- 
tion sale  three  days  after  the  defendants 
filed  a  petition' in  bankruptcy,  the  defendants 


may  show  an  order  made  by  the  bankruptcy 
court  setting  aside  the  particular  property 
as  exempt — Smalley  v.  Laugenour,  30  Wash. 
307.  70  Pac.   786. 

90.  Smalley  v.  Laugenour,  30  Wash.  307, 
70  Pac.    786. 

1.  Smalley  v,  Laugenour,  30  Wash.  307, 
70    Pac.    786. 

2.  Smalley  v.  Laugenour,  30  Wash.  307, 
70  Pac.   786. 

3.  In    re   Seydel,    118    Fed.    207. 

4.  If  the  creditor  had  notice  of  the  claim 
of  exemptions  and  failed  to  appear  and  ob- 
ject to  the  allowance  he  would  at  any  rate 
be  precluded  by  laches  to  have  the  proceed- 
ings re-opened  after  discharge  of  the  bank- 
rupt and  the  exemption  re-adjusted — In  re 
Reese,    115   Fed.   993. 

5.  In  re  Seydel,  118  Fed.  207. 

6.  White  V.  Thompson  (C.  C.  A.)  119  Fed. 
868. 

7.  Bankruptcy  Act  1898,  §  8.  In  Ohio  she  is 
entitled  to  reside  a  year  in  his  mansion  house 
if  dower  Is  not  sooner  assigned.  Rev.  Sts. 
§  4188,  and  to  the  articles  set  out  in  Rev. 
Sts.  ?§  6038-6039,  6040.  but  she  will  not  be 
allowed  the  exemptions  to  which  decedent 
would  have  been  entitled — In  re  Parschen. 
119    Fed.    976. 

8.  In  re  Seabolt,  113  Fed.   766. 

9.  Bankruptcy  Act  1898,  §  38  gives  the 
referee  the  right  to  exercise  the  powers  ri.  a 


334 


BANKRUPTCY. 


§  n 


courts  should  govern  the  hearing  before  the  referee.^"  On  re-examination  of  a  claim 
it  is  not  necessary  that  the  referee  give  notice  to  all  the  creditors.^^  A  witness  cannot 
be  compelled  to  attend  before  a  referee  in  bankruptcy  at  a  distance  more  than 
one  hundred  miles  from  where  he  resides,  though  within  the  state  of  his  residence.^ ^ 
The  referee  is  not  empowered  to  excuse  a  witness  from  answering  questions  on 
objections  thereto."  Questions  of  privilege  and  competency  of  witnesses  and  the 
admissibility  of  evidence  not  being  peculiar  to  proceedings  before  referees  will  be 
treated  in  another  subdivision  of  this  subject.^*  The  referee  should  base  his  find- 
ings on  the  evidence  taken  before  him.^^  He  is  not  precluded  from  changing  -a 
finding  made  before  the  evidence  has  been  transcribed  to  conform  to  the  evidence 
when  read  after  it  has  been  transcribed/®  and  a  finding  against  a  person  not  a 
party  to  a  subsequent  proceeding  is  not  conclusive  therein.^^  The  rules  of  equity 
practice  will  govern  as  to  the  review  of  the  hearing.^*  Exceptions  to  rulings  on 
evidence  must  be  specific/®  and  the  referee  should  make  all  excluded  testimony  a 
part  of  his  record  with  his  rulings  thereon  and  the  exceptions  taken  thereto.-" 
Formal  exceptions  however  to  the  findings  are  not  essential  to  a  review  thereof.'^^ 
Generally,  the  referee's  findings  are  conclusive  on  the  court,^^  and  will  not  be 
interfered  with  on  questions  of  fact  except  when  clearly  erroneous/'  if  the  court's 
attention  is  called  to  particular  testimony  which  the  referee  had  overlooked  it  will 
review  his  findings,^*  and  the  weight  to  be  given  to  the  findings  is  dependent 
on  the  character  of  the  evidence.^^  The  judge  on  review  of  a  referee's  decision  may 
determine  the  issue  de  novo  on  the  competent  evidence  in  the  record  or  he  may 
recommit  the  proceeding  for  further  hearing.^® 

§  19.  Modification  and  vacation  of  orders  of  bankruptcy  court. — Interlocu- 
tory orders  may  be  altered,  modified,  or  vacated,  by  a  federal  court  sitting  in 
bankruptcy  after  the  term  of  the  regular  court  at  which  they  were  entered,"  if  no 
rights  have  become  vested  under  them.^® 

§  20.  Trtistee's  bonds;  actions  thereon. — A  Unitrd  States  district  court  has 
jurisdiction  of  an  action  by  a  trustee  on  the  bond  of  a  former  trustee.^* 

§  21.  Accounting  and  settlement  of  trustee. — A  final  settlement  by  the  trus- 
tee will  not  be  ordered  until  the  records  of  the  entire  proceeding  shall  have  been 
made  in  accordance  with  the  requirements  of  the  statutes  and  rules  of  court.'" 
A  trustee's  balance  sheet  and  vouchers  should  correspond  with  the  statement  of 
the  depositary.'^  If  he  takes  possession  of  a  fund  belonging  to  another  than  the 
bankrupt  and  retains  it  after  it  has  been  adjudged  to  such  party  pending  an  appeal 
by  him,  he  will  not  be  charged   interest   in  the   absence  of  a   showing  tliat   he 


judge  in  taking  possession  on  the  issuance 
of  a  certificate  by  the  clerk  showing  absence 
from  the  district,  sickness  or  Inability  of 
the  judge  or  a  division  of  the  district — Wood- 
ward V.  McDonald    (Ga.)    42  S.  E.   1030. 

10.  In  re  De  Gottardi,  114  Fed.  328. 

11.  In  re  Mammoth  Pine  Lumber  Co..  116 
Fed.  731. 

12.  Bankruptcy  Act,  §  41 — In  re  Hem- 
street,    117    Fed.    568. 

13.  Dressel  v.  North  State  Lumber  Co., 
119    Fed.    531. 

14.  See  §  11  B. 

15.  The  referee  can  not  base  the  deter- 
mination of  the  same  issue  on  findings  made 
in  the  previous  proceeding  which  was  dis- 
missed or  state  any  of  the  evidence  taken 
therein  except  on  consent  of  the  parties — In 
re   Rosenburg,   116   Fed.    402. 

16.  The  referee  before  changing  his  find- 
ings should  give  counsel  notice  so  that  they 
may  be  heard — In  re  Hawley,  116  Fed.  429. 


17.  In  re  De  Gottardi,  114  Fed.   328. 

18.  In  re  De  Gottardi,   114  Fed.   328. 

19.  Dressel  v.  North  State  Lumber  Co.,  119 
Fed.   531. 

20.  General  Order,  No.  37 — In  re  Llpset, 
119  Fed.  379;  In  re  De  Gottardi,  114  Fed.  328. 

21.  In  re  Miner,  117  Fed.  953.  In  the 
Massachusetts  District — In  re  Swift,  118  Fed. 
348;   In   re  Hawley.    116   Fed.    428. 

22.  In  re  Grant,  118  Fed.  73;  In  re  West, 
116  Fed.  767;  In  re  Miner,  117  Fed.  953; 
Wakeman   v.   Throckmorton,    74   Conn.   616. 

23.  In    re   West,    116    Fed.    767. 

24.  In  re  Grant,  118  Fed.  73. 

25.  In    re    Swift,    118    Fed.    348. 

26.  In  re  De  Gottardi.  114  Fed.  328. 

27.  In  re  Henschel,  114  Fed.  968. 

28.  In  re  Ives  (C.  C.  A.)  113  Fed.  911. 

29.  United  States  v.  Union  Surety  &  Guar- 
anty   Co.,    118    Fed.    482. 


30. 
31. 


In  re  Carr,  116  Fed. 
In  re  Carr,  116  Fed. 


556. 
556. 


t^  22 A  DISCHARGE.  335 

received  interest,"  nor  will  he  be  allowed  payments  directed  by  the  referee  not 
empowered  to  authorize  them." 

§  22.  Discharge  of  hanJcrupt;  its  effect  and  how  availed  of.  A.  Procedure 
to  obtain  discharge  and  vacation  thereof. — The  bankruptcy  court  has  not  jurisdic- 
tion to  entertain  a  petition  for  a  discharge  filed  more  than  18  months  after  the 
adjudication.^* 

Specifications  in  opposition  to  a  discharge  must  be  signed  and  sworn  to  by 
each  of  the  opposing  creditors  and  not  alone  by  the  attorney  or  counsel,^'  but  a  mem- 
ber of  the  partnership  opposing,  authorized  to  sign  the  firm  name,  may  verify.^* 
If  verified  by  an  attorney  or  other  agent,  it  should  have  been  authorized  by  an  order, 
of  the  court^^  stating  the  reason  for  such  verification,^*  and  the  reason  therefor 
should  be  also  stated  in  the  verification.^^  A  failure  to  except  to  the  signature 
or  verification  is  a  waiver  of  the  objection.*** 

It  is  necessary  to  aver  in  the  specification  to  oppose  a  bankrupt's  discharge  that 
he  "knowingly  and  fraudulent!}^'  made  the  false  oath,*^  and  if  based  on  the 
ground  that  the  bankrupt  had  failed  to  keep  books  of  account  must  aver  that 
the  failure  was  with  fraudulent  intent.*^  It  is  within  the  discretion  of  the  court  to 
amend  specifications*^  by  permitting  substituted  specifications,  merely  enlarging  the 
original  ones,  to  be  filed  after  the  expiration  of  tJie  required  time  in  which  to 
file,**  and  the  exercise  of  this  discretion  may  be  reviewed  by  the  circuit  court  of 
appeals.*'  Objections  to  the  specifications  in  opposition  to  a  bankrupt's  discharge 
unless  taken  in  the  district  court  are  waived.*^  After  specifications  in  opposition 
are  filed,  no  further  pleading  on  the  part  of  the  bankrupt  is  necessary,*^  and  the 
allegations  contained  therein  cannot  be  taken  as  confessed  for  v^ant  of  an  answer.*** 
nor  is  their  sufiiciency  admitted  by  failure  to  demur  or  object;*^  and  if  the  allega- 
tions are  vague  or  general  or  unauthorized,  the  bankrupt  may  move  to  have  them 
stricken  out,  or  may  rely  upon  his  defense  at  the  time  of  the  hearing.'*" 

The  burden  is  on  the  objecting  creditors  to  establish  the  averments  contained 
in  their  specifications,^^  but  they  need  not  be  proven  beyond  a  reasonable  doubt.'*^ 
Testimony  given  by  the  bankrupt  on  his  original  examination  in  the  proceedings 
cannot  be  used  against  him  on  his  application  for  a  discharge.^^  Objections  to 
evidence  on  the  trial  of  specifications  are  waived  by  not  raising  them  before  the 
referee."* 

The  referee  is  entitled  to  be  allowed  for  expenses  incurred  in  the  publication  of 


32.  A  claimant  through  mistake  had  waiv- 
ed his  lien  on  the  fund  and  without  object- 
tion  allowed  it  to  be  paid  to  the  trustee — 
In  re  Hutchinson  (C.  C.  A.)   115  Fed.  937. 

33.  Bankruptcy  Act.  Gen.  Order  No.  29 — 
In  re  Mammoth  Pine  Lumber  Co.,  116  Fed. 
731. 

34.  In   re   Fahy,   116   Fed.   239. 

35.  In  re  Glass,  119  Fed.  509.  Bankruptcy 
Act,  §  18c — In  re  Baerncopf,  117  Fed.  975. 
Form  of  verification  to  specifications  In  op- 
position to  a  discharge  by  individual  or  cor- 
porate creditors — In  re  Glass.  119  Fed.  509. 

36.  In   re  Glass,    119  Fed.   509. 

37.  In  re  Glass,   119  Fed.   509. 

38.  In    re   Glass.    119    Fed.    509. 

39.  In   re   Baerncopf,    117   Fed.    975. 

40.  In  re  Baerncopf.  117  Fed.   975 


43.  In  re  Glass.   119   Fed.   509. 

44.  In  re  Osborne  (C.  C.  A.)   115   Fed.  1. 

45.  In  re  Carley   (C.  C.  A.)    117  Fed.  130. 

46.  In  re  Osborne  (C.  C.  A.)  115  Fed.  1. 
In  the  northern  district  of  New  York,  it  is 
a  practice  that  all  objections  to  sufficiency 
of  specifications  be  made  within  a  specified 
time  and  by  motion — In  re  Baldwin,  119 
Fed.    796. 

47.  In   re   Crist,   116   Fed.    1007. 
4.S.     In  re  Crist,  116  Fed.  1007. 

49.  In  re  Crist,  116  Fed.   1"007. 

50.  In  re  Crist,  116   Fed.   1007. 

51.  In  re  Crist,  116  Fed.  1007. 

52.  Evidence  that  the  bankrupt  for  the 
purpose  of  obtaining  a  credit  had  made  a 
written  statement  which  failed  to  disclose 
debts     to     relatives,     which     he     afterwards 


41.     Bankruptcy  Act,   §§  14,   29 — In  re  Bla-  '  claimed    to    owe    and    paid    while    insolvent 


lock,  118  Fed.  679;  In  re  Beebe,  116  Fed.  48. 
Speciflcation  held  bad  for  indeflnlteness — 
In   re   Blalock,    118    Fed.    679. 

42.     In  re  Blalock.   118  Fed.   679. 


held  sufficient  to  cast  on  him   the  burden   of 
explaining — In  re  Greenberg.  114  Fed.   773. 

53.  In  re  Leslie,   119  Fed.   406. 

54.  In    re   Baldwin,    119    Fed.    796. 


336 


BANKRUPTCY. 


§22B 


a  notice  of  application  for  discharge/®  and  for  stationery,"*'  but  not  for  services  in 
making  copies  of  the  petition  for  the  discharge."*^ 

The  mere  omission  of  a  debt  from  the  schedule  is  not  ground  for  setting  aside 
his  discharge/*  and  an  order  vacating  the  discharge  and  permitting  the  addition 
made  without  notice  to  the  creditor  is  void.®®  Where  the  actual  facts  did  not 
warrant  the  discharge  and  there  was  fraud  on  the  part  of  the  bankrupt  in 
sending  notice  of  application  for  his  discharge  to  a  creditor  at  a  wrong  address, 
the  discharge  will  be  vacated.®" 

B.  Grounds  for  refusal. — It  is  not  ground  for  refusing  a  discharge  that  the 
bankrupt  omitted  creditors  from  the  schedule/^  nor  because  he  had  made  a  false 
oath  in  bankruptcy  proceedings  against  a  corporation  in  which  he  was  an  officer/^ 
nor  will  bad  faith  be  presumed  from  a  mere  under  or  over  statement  of  debts.®^ 

The  willful  and  fraudident  concealment  of  property  by  the  bankrupt  will  de- 
prive him  of  his  right  to  a  discharge/*  and  it  is  such  a  concealment  for  the  bank- 
rupt to  fail  to  schedule  an  interest  as  a  cestui  que/®  or  a  contract  under  which  he 
was  to  receive  money,  though  nominally  assigned  to  another,  where  it  was  treated 
bv  the  bankrupt  and  the  assignee  as  belonging  to  the  former,®'  or  to  schedule  only  a 
portion  of  shares  of  corporate  stock  claimed  as  exempt  when  he  had  a  contract  by 
which  he  was  to  receive  a  larger  number  of  shares  f  but  the  mere  omission  of  exempt 
property/*  or  a  failure  to  name  certain  corporate  stock  in  his  schedule  or  that  he 
undervalued  it,''  or  that  he  omitted  a  conveyance  of  land  which  might  have  been 
subjected  to  the  payment  of  the  creditor's  debts,  made  more  than  three  years  before 
the  passage  of  the  bankruptcy  act,^°  or  that  he  undervalued  certain  real  interests,"^ 
or  that  there  had  been  a  large  shrinkage  in  the  property  of  the  bankrupt  previous 
to  filing  of  petition^^  is  not  alone  sufficient  to  show  a  concealment.  The  bankrupt 
has  the  burden  of  proving  that  money  received  by  him  after  the  appointment  of  the 
trustee  was  paid  to  the  trustee.^^  The  charge  of  fraudulent  concealment  of  property 
should  be  supported  by  a  fair  preponderance  of  credible  evidence.''* 

Failure  to  Tceep  hooTcs  of  account. — The  omission  of  sales  from  books  of  ac- 
count/'*  or  loans  to  the  bankrupt  though  made  a  few  months  before  the  bankruptcy 


85.     In    re    Dixon.    114    Fed.    675. 

56.  In  re  Dixon,  114  Fed.  675. 

57.  In  re  Dixon,  114  Fed.   675. 

58.  The  creditor  not  having  knowledge 
ot  bankruptcy  proceedings  in  time  to  have 
proved  his  claim  since  in  such  case  he  Is 
not  prejudiced — In  re  Monroe,  114  Fed.  398; 
In  re  Hawk   (C.  C.  A.)  114  Fed.  916. 

59.  In  re  Hawk   (C.  C.  A.)   114  Fed.  916. 

60.  Facts  held  to  show  a  fraudulent  con- 
cealment of  property  and  fraud  in  sending 
notice  of  applications  of  discharge  warrant- 
ing a  vacation  of  the  discharge — In  re  Roosa. 
119   Fed.    542. 

61.  In  re  Blalock,  118  Fed.  679;  In  re 
Monroe.    114   Fed.    398. 

62.  Bankruptcy  Act  1898.  §§  14,  29,  subd. 
b   (2) — In  re  Blalock,  118  Fed.   679. 

63.  Sufficiency  of  evidence  to  show  bad 
faith  in  the  statement  of  indebtedness — In 
re  Miner,  114  Fed.  998.  Evidence  held  in- 
sufficient to  show  that  the  bankrupt  had 
made  false  oath  with  respect  to  a  claim 
against  which  he  scheduled — In  re  Miner,  117 
Fed.    953. 

64.  In    re   Leslie.    119    Fed.    406. 

65.  Hudson  v.  Mercantile  Nat.  Bank  (C. 
C  A.)  119  Fed.  346.  Though  advised  by  an 
attorney  that  he  had  been  divested  of  all 
interest    therein— In    re    Stoddart,    114    Fed. 

486 

«6.     In  re  Semmel,  118  Fed.  487. 


67.  In  re  Semmel,   118   Fed.   487. 

68.  In   re  Semmel,   118    Fed.   487. 

69.  In  re  Semmel,  118  Fed.  487. 

70.  In  re  Countryman,  119  Fed.  639;  Pax- 
ton  v.   Scott    (Neb.)    92   N.   W.    611. 

71.  It  appeared  that  the  bankrupt  did 
not  know  his  exact  interest  in  certain  land, 
and  in  the  schedule  claimed  a  half  Interest 
when  in  fact  he  had  a  life  Interest — In  re 
Blalock.    118    Fed.    679. 

72.  In  re   Leslie,  119  Fed.   406. 

73.  Evidence  held  sufficient  to  show  that 
money  received  by  the  bankrupt  after  filing 
of  petition  had  not  been  paid  over  to  his 
trustee — In    re    Leslie,    119    Fed.    406. 

74.  In  re  Leslie,  119  Fed.  406;  In  re  Sals- 
bury.  113  Fed.  833.  Weight  to  be  given  to 
bankrupt's  testimony — In  re  Baldwin.  119 
Fed.  796.  Evidence  held  sufficient  to  show 
a  fraudulent  concealment  of  assets — In  re 
Baerncopf,  117  Fed.  975;  In  re  Blalock,  118 
Fed.  679;  In  re  Schenck.  116  Fed.  554;  In 
re  Lesser  (C.  C.  A.)  114  Fed.  83;  In  re  Hol- 
stein,  114  Fed.  794;  In  re  Otto.  115  Fed.  860; 
Fields  v.  Karter  (C.  C.  A.)  115  Fed.  950. 
To  show  fraud  in  listing  creditors  as  would 
justify  a  refusal  to  set  aside  a  judgment 
released  by  the  bankrupt's  discharge  as  pro- 
vided by  N.  Y.  Code  Civ.  Proc.  §  1268 — In  re 
MoUner.    75    App.    Div.    (N.    Y.)    441. 

75.  Bankruptcy  Act.  §  14b  (2).  Though 
the  bankrupt  kept  full  books  of  accounts,  but 


^  22C 


DISCHARGE. 


33'/ 


act  was  passed/*  and  though  entered  in  private  books  continually  m  the  bankrupt's 
possession  and  concealed  by  him/^  is  not  the  keeping  of  proper  books  of  account 
within  §  14,  b,  (2).  Where  the  banlcrupt's  condition  for  at  least  a  year  prior  to 
his  failure  was  one  of  such  hopeless  insolvency  that  he  would  be  presumed  to  have 
known  it,  a  failure  to  keep  the  requisite  books  of  account  will  be  considered  tc 
have  been  in  contemplation  of  bankruptcy.''^  The  destruction  of  books  material  tc 
the  proper  condition  of  the  bankrupt,  though  the  books  were  the  books  of  accour.': 
of  a  firm  of  which  bankrupt  had  been  a  member,  is  ground  for  refusal  of  hii 
discharge.'^* 

C.  Liabilities  released. — Choses  in  action  which  by  operation  of  the  act  passed 
to  the  trustee,  though  not  scheduled  or  reduced  to  the  trustee's  possession,  are 
barred  by  a  discharge  in  bankruptcy^**  where  the  creditor  had  actual  knowledge  of 
the  proceedings/^  otherwise  where  he  had  no  notice  of  the  proceeding  until  too- 
late  to  prove  the  claim.®^ 

A  valid  lien  acquired  more  than  four  months  before  the  filing  of  a  petition 
in  bankruptcy,*^  and  not  proved  against  the  estate,  is  not  affected  by  the  bankrupt's 
discharge,^*  whether  the  lien  was  contracted  or  judicial,*'*  or  statutory,  as  a  me- 
chanic's lien/"  and  such  a  lien  is  acquired  by  the  commencement  of  a  judgment 
creditor's  suit  before  the  bankruptcy  of  the  judgment  debtor,*'^  or  an  action  to 
establish  a  special  lien  on  the  property,**  and  a  lien  of  garnishment.*®  Therefore 
after  the  discharge  in  bankruptcy,  the  stay  of  an  attachment  may  be  vacated  and 
judgment  rendered  against  the  attached  property,^'*  or  the  plaintiff  may  take  a 
judgment  with  a  perpetual  stay.®^  An  attachment  lien  acquired  pendino-  bank- 
ruptcy proceedings  does  not  survive  the  defendant's  discharge  in  bankruptcy.®^ 

Under  the  act  of  1898,  a  cause  of  action  for  a  debt  created  by  fraud  is  no* 
barred  by  a  discharge  of  defendant  in  bankruptc}^®^  which  is  not  limited  to  commojj 
law  actions  of  fraud  or  deceit,®*  nor  need  it  have  accrued  while  the  bankrupt  was 
acting  as  an  officer  or  in  some  fiduciary  capacity,®^  nor  is  it  barred  by  filing  proof 
thereof  with  the  trustee,  though  the  claimant  may  have  waived  the  cause  of 
action  for  the  tort,®®  and  a  failure  to  return  an  overpayment  made  by  mistake  on 


failed  to  produce  them  until  compelled  to  do 
BO,  and  then  produced  but  one  book  which 
omitted  certain  sales,  and  his  explanation 
that  the  omitted  ones  were  made  to  his 
son  under  an  agreement  that  he  should  off- 
set them  against  previous  shortages  in  other 
sales — In   re   McBachron,   116   Fed.   783. 

76.  In    re    Feldstein     (C,    C.    A.)     115    Fed. 
259;    In   re   Greenberg-,    114   Fed.    773. 

77.  In    re    Feldstein    (C.    C.    A.)    115    Fed. 


259. 
78 

259. 
79 
SO, 


In    re    Feldstein    (C.    C.    A.)    115    Fed. 


In    re    Conley,    120    Fed.    42. 

Especially  where  the  creditors  whose 
debts  w^ere  discharged  received  nothing  from 
the  estate — Scruby  v.  Norman,  91  Mo.  App. 
517. 

81.  Zimmerman  v.  Ketchum  (Kan.)  71 
Pac.   264;   Graham  v.   Richerson,   115  Ga.   1002. 

82.  In    re    Monroe,    114    Fed.    39S. 

S3.  Bankruptcy  Act  1898  merely  takes 
away  from  the  lien  creditor  the  right  to  pro- 
ceed against  the  debtor  in  personam — Evans 
V.  Rounsaville,  115  Ga.  684;  Wenhamm  v. 
Mallin,    103    111.    App.    609. 

84.  Philmon  v.  Marshall  (Ga.)  43  S.  E. 
48;   Evans   v.   Rounsaville,   115  Ga.    684. 

85.  Paxton   v.    Scott    (Neb.)    92   N.   W.    611. 

86.  Such  a  lien  is  not  acquired  by  legal 
proceedings  within  §  67b — Holland  v.  Cun- 
liff,    96    Mo.    App.    67. 


87.  Within  N.  Y.  Code  Civ.  Pro.  §  1268 
authorizing  the  cancellation  of  judgments 
against  discharged  bankrupts  except  "where 
the  judgment  was  a  lien  on  real  property 
owned  by  the  bankrupt  before  he  was  ad- 
judged bankrupt,"  and  the  judgment  creditor 
who  had  brought  the  suit  is  entitled  to  have 
the  judgment  stand  for  the  purpose  of  en- 
forcing the  lien  as  acquired — Arnold  v  Tre- 
viranus   (N.  T.)    78  App.  Div.   589. 

88.  McCall   V.   Herring   (Ga.)    42   S.   E.    468 

89.  Holland  v.  Cunliff,  96  Mo.   App.  67. 

90.  Wakeman  v.  Throckmorton,  74  Conn 
616. 

91.  Elder    v.    Prussing,    101    111.    App.    655. 

92.  Graham   v.    Richerson,   115   Ga.    1002. 

93.  Bankruptcy  Act,  §  17a  (2) — Frey  v 
Torrey  (N.  Y.)  70  App.  Div.  166.  Judgments 
held  to  have  been  rendered  In  an  action  for 
fraud  within  the  bankruptcy  act — Matter  of 
Bullis   (N.  Y.)    68  App.  Div.   508. 

91.  The  words  "fraud,"  "embezzlement" 
and  "misappropriation"  in  Bankruptcy  Act 
1898,  §  17a  (4),  refer  to  one  acting  in  a  fidu- 
ciary capacity,  and  not  to  individual  debtors 
r  furred  to  in  (2)  excepting  judgments  in  ac- 
tions for  fraud — Matter  of  Bullis  (N.  Y  ) 
68    App.   Div.    508. 

95.  Frey  v.  Torrey  (N.  Y.)  70  App.  Div 
166. 

96.  Frey  v.  Torrey  (N.  Y.)  70  App.  Div. 
166. 


Cur.  Law— 22. 


338 


BANKRUPTCY. 


§22D 


demand  is  not  a  fraud  within  the  act.®^  Under  the  amendment  of  1903,  however,  a 
claim  based  on  fraud  while  acting  as  an  officer  or  in  a  fiduciary  capacity  alone  is 
excepted,"^  and  technical  trusts  and  not  implied  trusts  are  embraced  within  the 
term  "fiduciary  capacity  ;"^°  therefore  a  claim  against  the  bankrupt  as  administrator,^ 
or  for  the  conversion  of  the  proceeds  of  property  sold  under  a  deed  of  trust  by  the 
trustee,"  or  to  enforce  a  trust  in  land  of  the  bankrupt  held  by  another,^  or  for 
trust  funds  deposited  with  the  bankrupt  banker  merely  for  transmission  to  parties 
entitled  thereto  are  not  barred  ;*  but  a  claim  for  goods  procured  by  fraudulent  repre- 
sentations is."  Wliether  the  action  was  for  fraud  is  conclusively  determined  by  the 
judgment  in  the  state  court,®  though  the  entire  record  may  be  examined.'^  Interest 
collected  on  funds  in  the  hands  of  one  acting  in  a  fiduciary  capacity  is  not  barred 
by  his  discharge  in  bankruptcy.* 

A  decree  for  alimony  entered  in  a  state  court  previous  to  the  bankruptcy  of  the 
defendant/  or  a  judgment  for  damages  for  the  alienation  of  a  wife's  affections  are 
not  released  by  the  discharge.^**  A  judgment  entered  by  consent  after  the  dis- 
charge of  the  defendant  in  bankruptcy  in  an  action  pending  before  the  institution  of 
the  proceedings  will  not  be  vacated  on  the  ground  that  the  debt  was  discharged  by 
the  bankrupt,^^  but  a  judgment  on  the  common  money  counts  is  barred  by  the 
discharge  of  the  judgment  debtor  in  bankruptcy.^^ 

A  cause  of  action  for  conversion,^'  or  a  pending  action  of  trover  to  try  title  is 
not  barred  by  the  discharge  of  defendant  in  bankruptcy.^* 

The  discharge  of  a  bankrupt  principal  will  not  affect  the  liability  of  his  surety 
or  co-debtor,^"  but  will  render  his  co-obligors  liable  for  debt,^®  therefore  statutory 
liabilities  of  stockholders  are  not  released  by  the  discharge  of  the  corporation  in 
bankruptcy.^'' 

D.  Pleading  and  evidence. — A  plea  of  a  discharge  in  bankruptcy  must  be 
filed  within  the  time  prescribed  by  court  rules  and  in  the  manner  and  form  re- 
quired by  statute,^®  and  a  failure  to  plead  or  prove  the  discharge  is  a  waiver  of 
the  benefit  thereof.^®  A  plea  of  general  denial  and  discharge  in  bankruptcy  are  not 
inconsistent  pleas.-'*  Bankruptcy  of  an  appellant  may  be  shown  in  the  appellate 
court  bv  evidence  dehors  the  record.^^ 


97.  The  exceptions  from  a  release  by  a 
discharge  in  section  17a,  el.  4,  of  debts 
created  by  fraud,  embezzlement,  etc.,  "fraud" 
w-ill  not  Include  an  implied  fraud  or  fraud 
in  law  but  a  positive,  or  fraud  in  fact — West- 
ern Union  Cold  Storage  Co.  v.  Hurd.  116  Fed. 
442. 

98.  §  17a   (4). 

99.  Stickney  v.   Parmenter,   74  Vt.    58. 

1.  Stickney  v.  Parmenter,  74  Vt.   58. 

2.  In  such  case  the  bankrupt  acted  In  a 
fiduciary  capacity — Ruff  v.  Milner,  92  Mo. 
App.    620. 

3.  Evans  v.   Staale    (Minn.)    92   N.   W.   951. 

4.  Predmore  v.  Torrey  (N.  Y.)  38  Misc. 
Rep.    127. 

.5.  No  fiduciary  relations  exist  between 
seller  and  purchaser  of  merchandise,  such 
relation  being  necessary  to  except  a  judg- 
ment for  fraud  from  the  operation  of  the 
discharge,  under  §  17  of  the  Bankruptcy  Act 
—Harrington  v.  Herman  (Mo.)  72  S.  W.  546; 
Morse  &  Rogers  v.  Kaufman,  4  Va.  Sup.  Ct. 
Kep.    172,    40    S.    E.    916. 

6.  Harrington  v.  Herman  (Mo.)  72  S.  W. 
646. 

7.  Matter  of  Bullis  (N.  Y.)  68  App.  Div. 
(08. 

8.  Stickney  v.   Parmenter.   74   Vt.    58. 

9.  Welty  V.  Welty,  195  111.  335. 

10.  Exline  v.   Sargent.   23  Ohio  Cir.   Ct.   R. 


180.  Such  a  judgment  being  for  willful 
and  malicious  injuries  to  the  person  and 
property  of  another  and  excepted  by  §  17 
of  the  Bankruptcy  Act — Leicester  v.  Hoadley 
(Kan.)    71    Pac.   318. 

11.  Stevens  v.  Meyers  (N.  Y.)  72  App.  Div. 
128. 

12.  Barnes  Mfg.  Co.  v.  Norden,  67  N.  J. 
Law,    493. 

13.  Watertown  Carriage  Co.  v.  Hall  (N. 
Y.)  75  App.  Div.  201;  contra,  In  re  Benedict 
(N.  Y.)   37  Misc.  Rep.  230. 

14.  Berry    v.    Jackson,    115    Ga.    196. 

15.  Elder  v.  Prussing,  101  111.  App.  655; 
Holland  v.  Cunllff.  96  Mo.  App.  67;  Bern- 
hardt  v.    Curtis.    109    La.    171. 

16.  Seymou'-  v.  O.  S.  Richardson  Fueling 
Co.,   103   111.   App.   625. 

17.  Elsbree  v.  Burt,  24  R.  I.  322. 

18.  Griffith.  Turner  &  Co.  v.  Adams,  95 
Md.  170.  Sufficiency  of  petition  for  leave  to 
file  a  supplemental  answer  setting  up  the 
discharge  of  defendant  in  bankruptcy — Balk 
V.   Harris,   130  N.  C.   381. 

19.  Wakeman  v.  Throckmorton,  74  Conn. 
616.  As  where  the  bankrupt  first  calls  atten- 
tion to  it  by  motion  of  arrest  tliree  weeks 
after  verdict  nearly  seven  months  after  ver- 
dict— Lane  v.    Holcomb,   182   Mass.    360. 

20.  Ruff  V.  Milner.  92  Mo.  App.  620. 

21.  Scruby  v.  Norman,   91  Mo.  App.   517. 


S  3 


BASTARDS, 


339 


BASTARDS. 

§  1.  Legal  elements  and  evidences  of  illegitimacy. — To  establish  illegitimacy 
in  the  offspring  of  a  lawfully  married  woman,  the  impossibility  that  the  husband 
be  the  father  must  be  shown.^  A  wife  cannot  bastardize  her  children  born  while 
she  is  living  with  a  husband  not  shown  to  be  impotent.^  "Cohabiting"  in  statutes 
declaring  the  presumption  of  legitimacy  means  ostensible  living  together  as  man 
and  wife.' 

Parish  records  of  a  foreign  country  may  be  prima  facie  evidence  of  illegitimacy,* 
and  are  not  overcome  by  the  presumption  of  legitimacy  or  legitimization  by  mar- 
riage of  parents."* 

§  2.  Rights  and  duties  of  and  in  respect  to  bastards. — Statutes  requiring  the 
father,  to  support  his  minor  children  do  not  require  him  to  support  his  illegitimate 
child.®  An  agreement  by  him  to  pay  for  support  and  expenses  is  supported  by 
the  withdrawal  of  the  mother's  claim  for  support  to  the  overseer  of  the  poor.'' 
Damages  awarded  the  mother  of  a  bastard  by  arbitrators  will  be  upheld,  the  mother 
being  liable  for  support.* 

The  mother  may  transfer  her  right  of  custody  to  the  putative  father,  though 
such  transfer  may  be  void  as  against  the  child  if  contrary  to  his  interests.' 

Illegitimate  children  referred  to  in  an  application  for  insurance  as  adopted 
children  and  who  lived  with  insured  may  recover  under  a  benefit  certificate  limited 
to  wife,  children,  dependents,  or  blood  relatives.^" 

Inheritance. — Between  acknowledged  and  unacknowledged  collateral  heirs,  the 
former  inherit. ^^  Under  statutes  rendering  bastards  capable  of  inheritance  and 
transmission  of  inheritance  through  the  mother,  they  may  inherit  from  a  brother 
of  the  mother  dying  after  her.^^ 

§  3,  Procedure  to  ascertain  paternity  and  compel  support. — Where  the  stat- 
ute provides  for  a  proceeding  by  an  "unmarried'*  woman  she  need  not  be  unmar- 
ried at  the  time  of  complaint." 

A  minor  prosecutrix  may  dismiss  of  her  own  motion,^*  though  in  Nebraska  it 
is  held  that  prosecutrix  cannot  compromise  a  judgment.^^  Dismissal  on  provision 
for  maintenance  is  a  bar  to  a  second  prosecution.^® 


1.  Adg-er  v.  Ackerman,  115  Fed.  124,  52 
C.    C.    A.    568. 

2.  Since  Code  Civ.  Proc.  §  1962,  subd.  5, 
raises  an  indisputable  presumption  of  legiti- 
macy of  issue  of  a  wife  cohabiting  with 
her  liusband,  who  is  not  impotent,  the  wife 
cannot  testify  that  children  are  illegitimate, 
though  Civ.  Code,  §  195,  provides  that  illegiti- 
macy may  be  proved  like  any  other  fact 
when  legitimacy  is  disputed  by  husband  or 
wife,  and  Code  Civ.  Proc.  §  1879,  provides 
that  all  persons  may  be  witnesses  though 
parties  and  persons  in  interest — In  re  Mills' 
Estate,   137  Cal.   298,   70  Pac.   91. 

3.  Code  Civ.  Proc.  §  1962,  subd.  5 — In  re 
Mills'  Estate.   137  Cal.   298,  70  Pac.   91. 

4.  Recitals  that  a  child  was  born  to  a 
spinster  in  a  parish  record  kept  under  laws 
requiring  a  record  of  all  children  whether 
legitimate  or  not  are  prima  facie  evidence 
under  Rev.  St.  1898,  §  4160,  giving  such  effect 
to  "material  facts"  in  parish  records  of 
births,  marriages  or  deaths — Sandberg  v. 
State,  113  Wis.  578. 

5.  There  was  evidence  that  the  mother, 
less  than  two  years  after  the  birth,  left 
the  country  under  her  maiden  name  and 
without  company  of  a  husband — Sandberg  v 
State,  113  Wis.  578. 


6.  18  Del.  Laws,  c.  230— State  v.  Miller 
(Del.)    52  Atl.   262. 

7.  Beach  v.  Voegtlen  (N.  J.  Sup.)  53  Atl. 
695. 

8.  Damages  against  a  priest  fixed  by  the 
ecclesiastical  court — Poggenburg  v.  Conniff, 
23  Ky.  Law    Rep.  2463,  67  S.  W.  845. 

9.  An  instrument  expressing  such  trans- 
fer will  not  be  annulled  where  there  was  no 
sufficient  showing  of  fraud,  undue  influence, 
or  mistake,  and  the  interest  of  the  children 
was  promoted — Ousset  v.  Euvrard  (N.  J.  Ch.) 
52  Atl.  1110. 

10.  Hanley  v.  Supreme  Tent,  38  Misc.  Rep. 
(N.   Y.)    161. 

11.  Bourriaque   v.   Charles,    107   La.    217. 

12.  Rev.  St.  1899,  §  2916 — Moore  v.  Moore, 
169   Mo.    432. 

13.  Comp.  St.  c.  37,  §  1 — Parker  v.  Not- 
homb    (Neb.)    91   N.   W.   395. 

14.  Consent  of  the  county  attorney  is  not 
required  if  she  enter  of  record  an  admission 
of  provision  for  support — State  v.  Baker,  65 
Kan.    117,    69   Pac.    170. 

15.  State  V.  McBride   (Neb.)    90  N.  W.   209. 

16.  An  admission  of  provision  secured 
without  fraud  is  binding  on  both  prosecutrix 
and  the  state — State  v.  Baker,  65  Kan.  117 
69  Pac.  170. 


340 


BETTING  AND  GAMING. 


§    4 


Evidence. — Paternity  need  not  be  established  beyond  a  reasonable  doubt.^^ 
Troof  of  birth  creates  a  presumption  of  birth  alive."  The  child  may  be  offered 
in  evidence  to  prove  paternity  by  resemblance.^*  Defendant  may  show  association 
of  prosecutrix  with  other  men  with  opportunity  for  sexual  intercourse  at  about' 
the  time  of  conception.^" 

Judgment  and  damages. — Prosecutrix  is  not  entitled  to  a  sum  awarded  gen- 
erally as  costs.^^  A  judgment  for  support  against  the  putative  father  may  be  en- 
forced after  he  has  married  the  mother.-^ 

Bonds. — The  fact  that  no  expenditures  were  made  by  the  municipality  is  not 
defense  to  an  action  on  a  bastardy  bond.^^ 

§  4.  Legitimation,  recognition,  adoption. — Provisions  for  formal  acknowledg- 
ment of  bastards  are  not  exclusive.^*  Statutes  enabling  bastards  to  inherit  from 
the  father,  if  acknowledged  in  writing  by  him,  allow  writings  executed  before  their 
passage  to  capacitate  the  bastard  as  heir.^'  If  they  require  that  the  child  be  re- 
ceived into  the  father's  family,  if  the  father  is  living  with  a  woman  whom  he  holds 
out  as  his  wife  and  has  a  home,  the  child  must  be  received  therein.^®  Under  certain 
statutes  there  need  be  no  express  intention  of  making  the  child  an  heir.^^ 

Eecognitions  but  not  denials  of  paternity  made  by  a  person  deceased  are  ad- 
missible.^^ A  recognition  in  writing  may  be  in  letters  from  the  father  to  the  ille- 
gitimate.^' 

Where  a  minor  bastard  is  legitimized  by  the  marriage  of  his  parents  under  the 
laws  of  their  domicile,  such  status  follows  him.^° 

BETTING  AND  GAMING. 

It  is  not  proposed  to  treat  of  the  keeping  of  lotteries,^  or  the  validity  of  wagering 
contracts.^ 

§  1.  The  offense  and  criminal  prosecutions.  A.  The  offense.  Validity  of 
regulations. — The  legislature  is  ordinarily  held  to  have  plenary  power  to  regulate 
or  prohibit  gaming.  Thus  prohibition  of  gaming  in  any  place  barred  or  made 
difficult  of  access  to  the  police,^  betting  on  races  through  a  turf  exchange,*  book- 
making  and  pool  selling,®  the  selling  of  wagers  on  the  drawing  of  numbers,*  have 
been  upheld,  and  the  prohibition  may  be  directed  only  to  the  proprietors  of  the 


17.  Preponderance  of  evidence  sufficient — 
Priel  V.  Adams  (Neb.)  91  N.  W.  536.  Evi- 
dence held  insufficient,  there  being  a  show- 
ing of  intercourse  with  otliers  than  defend- 
ant— People  V.  McKay,  72  App.  Div.  (N.  Y.) 
527. 

18.  Priel  v.  Adams  (Neb.)   91  N.  "W.  536. 

19.  Kelly  v.  State,  133  Ala.   195. 

20.  Where  the  state  has  proved  defend- 
ant's association  with  prosecutrix  at  about 
such  time — Kelly  v.  State,  133  Ala.  195. 

31.     Barry  v.  Niessen,  114  Wis.  256. 

22.  Though  the  child  is  thus  legitimized — 
Alderson  v.  Alderson's  Guardian,  24  Ky.  Law 
Rep.  595,  69   S.  W.   700. 

23.  Code  Cr.  Proc.  §  883,  makes  proof  of 
such  expenditures  unnecessary — New  York  v. 
Buechel,  71  App.  Div.   (N.  Y.)   507. 

24.  Civ.  Code,  art.  203,  does  not  exclude 
arts.  207,  208 — Bourriaque  v.  Charles,  107  La. 
217. 

25.  Acknowledgment  in  writing  before 
witnesses,  of  paternity,  by  a  nonresident 
alien,  in  1877,  prior  to  Code.  §  3403,  makes  on 
his  death,  after  passage  of  such  section,  the 
child  heir  as  to  his  realty  in  South  Dakota — 
Moen  V.  Moen  (S.  D.)   92  N.  W.  13. 


26.  Civ.  Code,  §  230.  Acknowledgment 
and  gifts  of  small  sums  of  money  are  not 
sufficient — Garner  v.  Judd,  136  Cal.  394,  68 
Pac.   1026. 

27.  Comp.  St.  c.  23,  §  31 — Thomas  v. 
Thomas'   Estate   (Neb.)    90  N.  W.   630. 

28.  Action  under  Code,  §  3385,  permitting 
an  illegitimate  to  inherit  from  the  father  if 
recognized  publicly  and  notoriously  or  in 
writing — Britt  v.  Hall,  116  Iowa,  564. 

29.  Code,  §  3385.  Evidence  held  sufficient 
— Britt  V.   Hall,  116  Iowa,   564. 

30.  Fowler  v.  Fowler,  131  N.  C.  169. 

1.  "Lotteries." 

2.  "Gambling  Contracts." 

3.  In  re  Ah  Cheung,  136  Cal.  678,  69  Pac 
492. 

4.  Shreveport  v.  Maloney,  107  La.  193. 
And  see  People  v.  Bennett,  113  Fed.  515,  in 
which  Laws  N.  Y.  1895,  c.  570,  requiring,  un- 
der penalty,  all  wagers  on  horse  races  to  be 
recorded  at  the  track,  is  upheld. 

5.  People  V.  De  Bragga,  73  App.  Div.  (N. 
Y.)  579. 

6.  People   v.   Flynn,    72   App.   Div.    (N.    Y.) 
I  67. 


§   IB 


BETTING  AND  GAMING. 


341 


game.'  A  statute  making  bookmaking  punishable  as  a  felony  except  where  an- 
other punishment  is  provided  by  law  does  not  provide  two  penalties  for  the  same 
offense. 

Cards  and  other  table  games. — Craps  is  not  a  banking  or  table  game,  though 
the  owner  of  the  table  acts  as  stakeholder  and  receives  a  commission.* 

Racing  and  race  trades. — Betting  on  the  result  of  a  horse  race  is  legal  in 
Louisiana.®  Bookmaking  in  New  York  is  illegal  though  not  carried  on  at  a  race 
track.^°  A  telegraph  company  transmitting  messages  as  to  the  result  of  races  is 
not  liable.^^ 

Slot  machines. — A  slot  machine  paying  prizes  in  cigars  is  illegal.*^ 

Gaming  at  public  place. — The  back  yard  of  a  building  where  liquor  is  sold/' 
or  the  second  story  of  a  building  the  lower  floor  of  which  is  used  for  the  sale  of 
liquor/*  is  within  a  statute  prohibiting  gaming  "at"  a  store,  etc.,  where  liquor  is 
sold.  A  room  adjoining  a  saloon  and  partitioned  off  therefrom  is  within  the  stat- 
ute.^" A  remote  field  sometimes  resorted  to  for  the  purpose  of  card  playing  is  not 
a  public  place,^®  but  a  room  to  which  persons  went  at  will  without  invitation  may 
be  found  by  the  jury  to  be,^^  and  the  front  yard  of  a  dwelling  forty  feet  from  a 
highway  is  a  public  place.^* 

B.  Indictment  or  information  and  trial  procedure. — Indictment  for  playing 
at  a  hotel  need  not  allege  that  it  was  not  a  private  residence,^®  but  an  indictment 
for  pool  selling  must  allege  that  it  was  not  at  a  race  course  authorized  by  statute.*" 
If  the  indictment  alleges  that  the  place  was  not  a  private  residence,  it  need  not 
be  designated.*^  The  particular  location  of  a  pool  room  need  not  be  specified.** 
An  indictment  for  keeping  a  pool  room  must  allege  the  presence  therein  of  the 
books  and  apparatus  mentioned  in  the  statute.*'  An  indictment  charging  gam- 
bling by  three  persons  is  variant  from  evidence  that  one  of  them  gambled  with 
persons  not  named.**     Information  in  general  terms  sufficient. *° 

See  note  for  holding  as  to  materiality  of  certain  evidence  or  sufficiency  of 
proof.*' 


7.  It  Is  not  class  legislation  because  the 
patrons  are  not  punished — State  v.  Wood- 
man,  26   Mont.   348,    67  Pac.   1118. 

S.  Cummings  v.  State  (Tex.  Cr.  App.)  72 
S.  W.  395;  Campbell  v.  State  (Tex.  Cr.  App.) 
72   S.  W.   396. 

9.  Shreveport  v.  Maloney,  107  La.  193. 

10.  Under  Pen.  Code,  §  351,  though  Laws 
1895,  c.  570,  relates  only  to  the  recording  of 
wagers  at  the  track — People  v.  Levoy,  72 
App.  Div.  (N.  Y.)  55.  Pen.  Code,  §  351,  Laws 
1895,  c.  570,  provided  for  civil  liability  only 
for  book  making  at  race  tracks — People  v. 
Stedeker,  75  App.  Div.   (N.  Y.)   449. 

11.  Com.  V.  Western  Union  Tel.  Co.,  23 
Ky.  Law  Rep.   1633,   67   S.  W.   59. 

12.  Laws  1901,  p.  166,  prohibits  slot  ma- 
chines "for  money,  checks,  credits,  or  any 
representative  of  value,  or  for  any  property 
or  thing  whatever" — State  v.  Woodman,  26 
Mont.  348,  67  Pac.  1118. 

13.  James  v.  State,   133  Ala.   205. 

14.  Kicker  v.  State,  133  Ala.  193;  Osborn 
V.   State    (Tex.   Cr.   App.)    72   S.   W.   592. 

15.  Douthit  v.  State  (Tex.  Cr.  App.)  73 
S.  W.  809. 

16.  Russ  v.  State,  132  Ala.  20.  See  Wil- 
liams V.  State  (Tex.  Cr.  App.)  72  S.  W.  192, 
for  a  conviction  on  similar  facts,  under  a 
statute  prohibiting  gaming  at  any  place  ex- 
cept a  private   residence. 

17.  Cartiledge  v.  State,  132  Ala.  17. 


18.  Lee  v.  State  (Ala.)  33  So.  894. 

19.  That  being  the  exception  in  the  stat- 
ute— Wilkerson  v.  State  (Tex.  Cr.  App.)  72 
S.  W.  850;  Hodges  v.  State  (Tex.  Cr.  App.) 
72  S.  W.  179. 

20.  People  v.  Stedeker,   175   N.  Y.   57. 

21.  Russell  v.  State  (Tex.  Cr.  App.)  72  S. 
W.  190;  Hankins  v.  State  (Tex.  Cr.  App.)  72 
S.  W.  191. 

22.  People  V.   Stedeker,   175   N.  Y.   57. 

23.  People  v.  Stedeker,  175  N.  Y.  57. 

24.  Pullen  V.  State  (Ga.)   C2  S.  E.  774. 

25.  The  information  alleged  that  one  C 
did  at  a  certain  place  use  and  allow  rooms 
to  be  used  for  gambling — People  v.  Wyatt, 
39  Misc.  Rep.   (N.  Y.)   456. 

26.  Evidence  that  another  participant  in 
the  game  has  left  the  county  is  inadmissi- 
ble— James  v.  State,  133  Ala.  208.  On  a 
trial  for  permitting  a  minor  to  play,  evidence 
that  at  some  previous  time  defendant  re- 
quested the  minor  not  to  come  is  inadmissible 
— Alexander  v.  State  (Tex.  Cr.  App.)  67  S.  W. 
319. 

Sufficiency:  To  convict  of  keeping  a  gam- 
ing house — White  v.  State,  115  Ga.  570.  To 
convict  of  playing  for  money;  witness  saw 
only  checks  used  and  did  not  see  them 
cashed — State  v.  Brooks  (Mo.  App.)  67  S.  W. 
942.  A  conviction  on  the  testimony  of  one 
who  said  he  was  pretty  sure  he  saw  defend- 
ant playing  but  might  be  mistaken  was  sus- 


342 


BIGAMY. 


One  indicted  for  keeping  gaming  table  is  entitled  to  instruction  that  lie  must 
be  interested  in  the  gain  or  loss  thereof.  ^^  Betting  need  not  be  defined  on  trial  for 
bookmaking.^^  Where  all  the  evidence  is  that  the  play  was  in  a  pasture,  an  in- 
struction as  to  the  burden  of  proving  that  it  was  not  at  a  private  residence  is  prop- 
erly refused.^' 

Gambling  with  cards  is  a  misdemeanor  in  Idaho.^" 

§  2.  Penalties  and  seizure  of  implements. — Act  authorizing  destruction  of 
gambling  implements  does  not  deprive  of  property  without  due  process  of  law.^^ 
An  instrument  which  may  be  used  for  an  innocent  purpose  cannot  be  seized  by  the 
police  as  a  preventative  measure.'^  Absence  of  preliminary  affidavits  cannot  be 
objected  to  where  no  search  is  made.^'  The  court  may  order  a  trial  before  ordering 
the  destruction  of  a  slot  machine.^*  Statute  providing  penalty  is  to  be  strict!}' 
construed,^'  and  will  be  limited  to  gambling  within  the  state.^^ 

§  3.  Recovery  back  of  money  lost. — Where  the  action  is  in  name  of  third  per- 
son, defendant  may  show  it  is  really  in  interest  of  loser/^  and  this  may  be  shown 
under  the  general  issue/^  but  it  has  been  held  that  collusion  between  the  loser  an3 
the  person  suing  is  no  defense.^®  Action  must  be  brought  in  county  where  loss 
occurred.*"  Giving  of  notes  is  not  a  pa^Tnent  which  may  be  recovered  back,  nor 
is  payment  by  sureties  on  supersedeas  bond  given  on  appeal  from  judgment  on 
such  notes.*^ 

BIGAMY. 

The  offense. — Belief  in  a  divorce  is  no  defense,  nor  is  a  divorce  after  the  sec- 
ond marriage.^  The  fact  that  the  first  wife  had  married  defendant  within  the  time 
when  divorced  persons  were  forbidden  to  remarry  in  the  state  where  the  marriage 
was  performed  is  no  defense  where  the  divorce  was  granted  elsewhere.^ 

Indictment. — The  indictment  need  not  negative  a  divorce  from  the  first  wife,* 
nor  state  time  and  place  of  first  marriage  or  negative  exception  as  to  absence  of 
spouse  and  belief  in  death.*  In  Oregon,  the  information  must  allege  that  the  first 
wife  was  living  at  the  time  of  the  cohabitation.^  Variance  between  indictment  and 
marriage  certificate  as  to  name  of  first  wife  is  not  fatal.® 


talned — Simmons  v.  State  (Tex.  Cr.  App.) 
72  S.  W.  586.  Sufficient  to  show  a  room  in 
hotel  rented  by  month  but  under  general  su- 
pervision of  defendant,  -who  •was  hotel  keep- 
er; bed  in  room,  but  no  evidence  that  any  one 
slept  therein;  gambling-  appliances  in  room- 
Hodges  V.  State   (Tex.  Cr.  App.)   72  S.  W.  179. 

.27.     Jones  v.   State,   80  Miss.   181. 

as.  People  V.  Levoy,  72  App.  Div.  (N.  Y.) 
65. 

20.  Williams  V.  State  (Tex.  Cr.  App.)  72 
S.  W.  192. 

30.  The  minimum  punishment  is  fixed  by 
Act  Feb.  6,  1899;  the  maximum  by  Rev.  St. 
§   6313 — In   re   Rowland    (Idaho)    70   Pac.    610. 

31.  Garland  Novelty  Co.  v.  State  (Ark.) 
71    S.   W.    257. 

32.  Musical  slot  machine — Wagner  v.  Up- 
shur, 95  Md.   519. 

33.  Garland  Novelty  Co.  v.  State  (Ark.) 
71   S.   W.    257. 

34.  Garland    Novelty    Co.    v.    State    (Ark.) 

71  S.  W.  257. 

35.  Jacob  V.  Clark,  24  Ky.  Law  Rep.  2120, 

72  S.  W.  1095. 

36.  Jacob  V.  Clark,  24  Ky.  Law  Rep.  2120, 
72  S.  W.   1095. 

37.  Staninger  v.  Tabor.  103  111.  App.  330; 
Kizer  v.   Wald.*:*..    198   111.    274. 


38.  Staninger  v.   Tabor,   103   111.   App.    330. 

39.  Kizer   v.   Walden,    198   111.    274. 

40.  Staninger  v.  Tabor,  103  111.  App.  330. 

41.  Jacob  V.  Clark,  24  Ky.  Law  Rep.  2120, 
72   S.   W.    1095. 

1.  Rogers  v.  Com.,  24  Ky.  Law  Rep.  119, 
68   S.   W.    14. 

2.  State  V.  Bentley  (Vt.)    53  Atl.  1068. 

3.  Rogers  v.  Com.,  24  Ky.  Law  Rep.  119, 
68  S.  W.  14.  An  indictment  that  defendant 
married  a  certain  woman  and  cohabited  with 
her,  his  first  wife  being  living  at  the  time 
of  such  marriage  and  cohabitation,  is  suffi- 
cient— State  V.  Steupper  (Iowa)  91  N.  W. 
912. 

4.  Ferrell  v.  State  (Fla.)  34  So.  220.  In- 
dictment negativing  exception  in  general 
terms  held  sufficient — State  v.  Damon,  97 
Me.  323. 

5.  The  statute  (Bel.  &  C.  Ann.  Codes  & 
St.  §  1918)  forbids  cohabitation  with  an- 
other as  husband  or  wife  while  first  spouse 
is  living.  Information  alleging  that  defend- 
ant while  first  wife  was  living  married  an- 
other and  "subsequently  cohabited  with  her" 
held  insufficient — State  v.  Durphy  (Or.)  71 
Pac.  63. 

6.  It  was   shown   that   the   certificate   was 


BLACKMAIL— BONDS. 


343 


Evidence  and  instructions. — The  license  issued  for  the  first  marriage  is  ad- 
missible.'^  Evidence  of  continued  cohabitation  is  admissible.*  An  instruction  re- 
quiring a  finding  of  marital  cohabitation  only  is  erroneous.® 

BLACKMAIL. 

The  sending  of  blackmailing  letters  is  a  postal  crime.* 


BONDS. 


5  1.  The  Instrument;  Essentials  and  Va- 
lidity— Consideration;  Execution  and  Deliv- 
ery; Fraud. 


§  2.     Riglits   of  Parties  and  Transferees. 
§  3.      Terin.s   and    Conditions   in   General. 
§  4.     Remedies    and    Procedure. — Pleading; 

Evidence;  Judgment. 


§  1.  The  instrument;  essentials  and  validity. — A  bond  not  within  the  in- 
tendment of  a  statute  may  be  sustained  as  a  common  law  contract/  but  not  a  bond 
in  compliance  with  an  unconstitutional  statute,^  unless  there  is  a  consideration  in- 
dependent of  the  statute.^ 

Consideration  is  not  required  for  a  statutory  bond,*  and  statutes  providing  that 
want  of  consideration  shall  be  a  defense  to  actions  on  notes,  bonds,  etc.,  do  not 
apply  to  penal  bonds.^  A  bond  for  the  performance  of  a  contract  under  a  void 
franchise  is  without  consideration.® 

Execution. — A  signature  of  the  secretary  for  the  purpose  of  attesting  the  sig- 
nature and  seal  of  the  vice-president  on  the  back  of  the  secretary's  surety  bond 
cannot  be  regarded  as  a  signing  of  the  bond.'^ 

Delivery  to  the  attorney  of  an  interested  party  is  sufficient,*  or  a  placing  in 
the  hands  of  a  third  person  to  be  delivered  to  the  obligees.® 

Fraud  with  which  the  obligee  is  not  connected  will  not  avoid  a  bond.^** 

§  3.     Rights  of  parties  and  transferees. — The  obligors  of  a  forged  bond  are 


erroneous — Kuehn  v.  State  (Tex.  Cr.  App.) 
69  S.  W.   526. 

7.  De  Lucenay  v.  State  (Tex.  Cr.  APP) 
68   S.  W.   796. 

8.  The  indictment  alleged  a  marriag-e  In 
another  state  and  the  evidence  offered  was 
of  continued  cohabitation  in  Iowa — State  v. 
Steupper  (Iowa)  91  N.  W.  912.  Evidence 
field  sufficient — Ferrell  v.  State  (Pla.)  34  So. 
220.  Failure  of  the  clergyman  to  identify 
the  parties  to  the  first  marriage  is  imma- 
terial if  there  is  other  evidence — Kuehn  v. 
State  (Tex.  Cr.  App.)  69  S.  W.  526.  Convic- 
tion reversed  where  first  wife  testified  to 
ceremony  but  clerk  certified  that  there  was 
no  return  thereof  on  file — People  v.  Good- 
rode   (Mich.)    94  N.  W.  14. 

9.  State    v.    St.    John,    94    Mo.    App.    229. 
1.     Act  Cong.  Mar.  2,  1889,  amending  R.  S., 

§  5480.  directed  against  "schemes  to  defraud" 
— Herman  v.  United  States  (C.  C.  A.)  116 
Fed.    350. 

1.  State  V.  Paxton  (Neb.)  90  N.  W.  983. 
An  appeal  undertaking  insufficient  to  comply 
with  the  statute  may  bind  the  sureties  as  a 
common  law  undertaking,  if  there  was  an 
actual  stay  of  execution  thereon.  The  sure- 
ties were  charged  with  notice  that  they  were 
not  merely  executing  a  cost  bond  by  the 
fact  that  they  were  required  to  Justify  in 
the  sum  of  $2,000  and  undertake  to  pay  costs 
and  damages  to  the  amount  of  S250.  together 
with  the  amount  of  the  judgment,  if  it  was 
affirmed  and  the  bond  was  treated  by  counsel 
as  sufficient — Coughran  v.  Hollister,  15  S.  D. 
318. 

2.  Bond  stating  that  It  was  given  under 
Code  Civ.  Proc.  §  1203.  from  a  building  con- 


tractor for  the  protection  of  materialmen — 
Shaughnessy  v.  American  Surety  Co.,  138  Cal. 
543,  71  Pac.  701. 

3.  Statute  afterward  declared  unconsti- 
tutional— Stevenson  v.  Morgan  (Neb.)  93  N. 
W.  180. 

4.  State  v.  Paxton    (Neb.)   90  N.  W.  983. 

5.  Rev.  St.  1874,  c.  98,  §  9.  A  plea  of  no 
consideration  is  not  a  defense  in  an  action 
on  a  penal  bond  for  the  payment  of  a  mate- 
rialman— Chicago,  etc.,  Mfg.  Co.  v.  Haven, 
195  111.  474. 

6.  Bond  given  by  grantee  of  franchise — 
Kirkwood  v.  Meramec  Highlands  Co.,  94  Mo. 
App.    637. 

7.  Laws  1895.  p.  105,  §  4,  provides  that  the 
surety  of  an  officer  of  a  building  association 
should  be  approved  by  the  board  of  directors. 
A  bond  not  otherwise  signed  by  the  secre- 
tary, bore  on  its  back,  after  recital  of 
such  approval  by  the  board,  the  signature 
of  the  vice-president,  followed  by  the  cor- 
porate seal  and  the  words  "Attest.  John  C. 
Obert.  Secretary."  Held,  that  it  was  not  a 
sufficient  signature  of  his  bond — Nortli  St. 
Louis  Bldg.  &  L.  Ass'n  v.  Obert,   169  Mo.   507. 

8.  Several  months  later  the  attorney  made 
a  delivery  to  the  obligee — Wylie  v.  Commer- 
cial &  Farmers'  Bank,  63  S.  C.  406. 

9.  Bonds  were  placed  in  the  hands  of  a 
third  person  to  be  delivered  at  the  death  of 
the  obligor,  the  obligor  parting  with  all 
dominion  over  them — Frank  v.  Frank  (Va.) 
42   S.   E.    666. 

10.  False  representations  of  one  not  the 
agent  of  the  obligee,  which  he  did  not  par- 
ticipate in  or  have  knowledge  of — Feigen- 
span  V.  Wilson   (N.  J.  Sup.)   52  Atl.  233. 


344 


BONDS. 


§   4 


not  made  liable  by  the  fact  that  the  obligees  have  accepted  it  in  good  faith  and 
incurred  liability  in  reliance  thereon.^^  A  purchaser  with  notice  after  maturity 
from  a  bona  fide  holder  for  value  before  maturity  and  without  notice  is  entitled 
to  the  rights  of  the  latter/^  and  the  fact  that  an  intermediate  owner  of  nego- 
tiable bonds  could  not  have  enforced  them  does  not  affect  a  bona  fide  purchaser.^' 
A  default  in  payment  of  interest  does  not  cause  a  purchaser  to  take  with  notice  of 
dishonor.^* 

Purchasers  of  non-negotiable  mortgage  bonds  take  them  subject  to  equities 
between  the  parties  existing  before  notice  of  assignment/**  and  are  in  the  position 
of  assignees  of  non-negotiable  instruments.^*  The  obligor  may  be  estopped  to  deny 
a  trustee's  authority  to  pledge  the  bonds  for  its  own  debt,^'^  though  estoppels  are 
not  favored  and  must  be  clearly  made  out.^^  A  trust  company  holding  bonds,  exe- 
cuted to  it  as  trustee,  to  be  sold,  can  confer  no  rights  on  one  to  whom  it  pledges 
the  bonds  for  its  own  debt.^' 

§  3.  The  terms  and  conditions  in  general;  interpretation,  legal  effect, 
breach.'^'* — The  substance  rather  than  the  form  will  be  given  importance  in  the  in- 
terpretation of  a  bond.^^ 

Wliere  a  corporate  officer  by  statute  is  to  hold  office  at  the  pleasure  of  the 
board  of  directors,  his  bond  is  not  limited  to  the  first  year  of  his  employment,  though 
the  minutes  of  the  meeting  at  which  he  is  appointed  read  that  he  is  appointed  until 
the  next  annual  election.^^ 

A  condition  for  the  honest  and  proficient  performance  of  duties  covers  neg- 
ligence though  co-employes  are  also  negligent.^'  A  bond  for  faithful  performance 
of  an  attorne/s  duties  adds  nothing  to  his  liability  xmder  the  law.-* 

§  4.  Remedies  and  procedure. — Where  a  bond  imposes  a  primary  liability,  the 
doctrine  of  laches  does  not  apply.^^     Compliance  with  provisions  for  payment  in 


11.  TerriU  v.  TilHson   (Vt.)    54  Atl.  187, 

12.  Central  R.  &  B.  Co.  v.  Farmers'  L..  & 
T.   Co.,   116  Fed.   700. 

13.  Central  R.  &  B.  Co.  v.  Farmers*  L.  & 
T.  Co.,  114  Fed.  2G3,  52  C.  C.  A.  149. 

14.  Negotiable  bonds — Central  R.  &  B.  Co. 
V.  Farmers'   L.   &  T.   Co.,   116   Fed.   700. 

15.  A  covenant  by  the  obligor  that 
the  land  is  free  from  incumbrance  can- 
not be  asserted  against  him  by  the  trans- 
feree as  an  estoppel  if  made  on  faith  of  the 
obligee's  agreement  to  discharge  such  in- 
cumbrance with  a  portion  of  the  amount  sc- 
oured by  the  mortgage,  and  the  obligor  is 
liable  only  for  the  amount  actually  received 
by  him — ISIacauley  v.  Louisville  Banking  Co., 
24  Ky.   Law    Rep.   1.   67  S.  W.   843. 

16.  The  obligor  may  maEe  any  defense 
against  the  assignee  of  bonds  payable  to  a 
trust  company,  "trustee."  or  bearer  that  he 
might  have  made  against  the  original  payee 
— Rodd  v.  Louisville  Banking  Co.,  24  Ky.  Law 
Rep.   55,   67   S.  W.   63. 

17.  As  where  he  has  stated  that  the  trus- 
tee has  settled  with  him  in  full,  and  that  he 
owed  all  outstanding  bonds,  and  the  pledgee 
has  taken  on  the  faith  of  such  statement — 
Rodd  v.  Louisville  Banking  Co.,  24  Ky.  Law 
Rep.   65.    67   S.   "W.   63. 

18.  Hence  having  no  reason  to  believe 
that  the  bonds  would  be  transferred  before 
the  money  is  furnished,  the  obligor  is  not 
estopped  to  plead  that  he  did  not  receive 
the  consideration  which  was  to  be  advanced 
during  the  erection  of  a  house — Macauley  v. 
Louisville  Banking  Co.,  24  Ky.  Law  Rep.  1, 
67  S.  W.  843. 

19.  The  pledgee  for  its  own  debt  to  a 
trust   company   to   whom    bonds   are   payable, 


"trustee"  or  bearer  acquires  no  lien — Rodd  v. 
Louisville  Banking  Co.,  24  Ky.  Law  Rep.  55. 
67  S.  W.   63. 

20.  A  bond  conditioned  to  be  void  in  case 
a  building  contracted  to  be  erected  by  the 
vendee  on  land  conveyed  will  not  be  regard- 
ed as  securing  the  payment  of  the  purchase 
price,  though  the  land  without  the  erection 
of  the  building  would  have  been  inadequate 
security  for  mortgages  thereon,  one  of  which 
was  assumed  by  the  vendee  and  the  other 
executed  by  him  as  part  of  the  contract  of 
sale — Sachs  v.  American  Surety  Co.,  72  App. 
Div.    (N.   y.)    60. 

A  bond  for  the  satisfaction  of  a  mortgage 
within  six  months  will  not  be  regarded  as 
one  for  liquidated  damages,  and  is  satis- 
fied by  satisfaction  of  the  mortgage  though 
after  the  period  mentioned,  no  damages  be- 
ing shown — McDaniels  v.  Gowey,  30  Wash. 
412.  71  Pac.  12. 

21.  More  regard  will  be  paid  to  the  gen- 
eral purpose  as  shown  by  the  provisions 
of  the  bond  as  a  whole  and  the  interests 
of  the  parties  in  the  subject-matter  than  to 
the  words  Implied — Northern  Assur.  Co.  v. 
Borgelt  (Neb.)   93  N.  W.   226. 

22.  The  bond  of  a  cashier  of  a  savings 
bank  mentioned  no  time  during  which  it  was 
to  be  operative  and  no  other  bond  was  given, 
though  the  cashier  was  re-appointed  at  suc- 
cessive annual  meetings — Ida  County  Sav. 
Bank  v.  Seldensticker  (Iowa)   92  N.  W.  862. 

23.  A  bank  officer  is  liable  though  direct- 
ors have  not  used  due  diligence — Flala  v. 
Ainsworth    (Neb.)    94   N.   "V^^   153. 

24.  Humboldt  Bldg.  Ass'n  v.  Ducker's 
Ex'x,   23  Ky.  Law  Rep.   1073,  64  S.  W.  671. 

2.'5.     Bond    required   before    appointment   of 


^  4 


BONDS. 


345 


accord  with  the  mechanic's  lien  law  is  not  a  condition  precedent  to  enforce  the  con- 
tractor's bond  for  performance  of  the  contract.^® 

After  20  years  there  is  a  presumption  that  a  bond  has  been  paid.^^ 

Action  to  enforce  a  bond  should  be  in  the  name  of  the  obligees,^^  though  the 
assignee  or  pledgee  of  a  negotiable  bond  may  sue  in  his  own  name.^^ 

Pleading. — Where  the  condition  is  set  out  and  breaches  specifically  assigned, 
non  damnificatus  is  not  a  good  plea.^°  Such  plea  does  not  answer  an  alleged 
breach  of  a  bond  to  perform  a  particular  act.^^  Where  the  answer  is  not  sworn 
to,  the  execution  of  the  bond  is  admitted.^^  Striking  of  a  plea  of  non  est  factum 
to  an  amended  declaration  carries  with  it  former  pleas  of  the  same  nature,  allowing 
the  bond  to  be  admitted  in  evidence  without  preliminary  proof  of  execution. ^^ 

Evidence. — In  an  action  for  breach  of  a  bond  to  erect  a  building  by  the  vendee, 
evidence  as  to  the  value  of  the  premises  had  there  been  performance  is  admissible.^* 

Rulings  and  instructions. — A  ruling  proper  as  to  sureties  but  erroneous  as  to 
the  principal  defendants  should  be  refused  if  there  is  no  distinction  between  the 
two  classes  of  parties. ^^     Instructions  should  conform  to  the  evidence. ^^ 

Judgment  and  damages. — On  breach  of  a  bond  for  the  erection  of  a  building 
by  the  vendee  of  land,  the  loss  of  profits  may  be  the  measure  of  damages. ^^ 

Where  a  bond  is  treated  as  for  the  payment  of  money,  a  judgment  cannot  be 
modified  so  as  to  provide  that  it  shall  stand  as  security  for  further  breaches,  the' 
statute  allowing  judgment  in  such  form  applying  only  to  bonds  not  conditioned 
for  the  payment  of  money.^* 

If  the  damages  exceed  the  penalty  of  the  bond,  the  amount  of  the  penalty 
with  interest  may  be  recovered.'^     By  statute,  interest  may  be  made  not  allowable 


an  employe,  conditioned  to  be  void  in  case 
of  a  competent  and  honest  performance  of 
services — Walker  v.  Brinkley,  131  N.  C.  17. 

26.  Central  Lumber  Co.  v.  Kelter,  201  111. 
503. 

27.  Such  evidence  is  not  rebutted  by  proof 
of  insolvency  not  shown  to  have  continued 
through  the  term  or  by  proof  of  payments 
shown  to  have  been  on  other  accounts — Gull- 
lou  V.  Redfield  (Pa.)   54  Atl.  886. 

28.  Sister  Mary  Nonna  v.  Conlan  (N.  J. 
Sup.)   52  Atl.  210. 

29.  Mills'  Ann.  Code,  §  3.  The  nature  of 
his  title  or  the  consideration  paid  by  him  is 
not  material — Board  of  Com'rs  of  Lake  Coun- 
ty V.  Schradsky  (Colo.)  71  Pac.  1104. 

30.  The  breaches  should  be  traversed 
with  a  conclusion  to  the  country — Dime 
Sav.  Inst.  V.  American  Surety  Co.  (N.  J.  Sup.) 
53  Atl.  217. 

31.  Where  the  condition  is  for  anything 
except  mere  indemnity,  performance  must 
be  averred — Fidelity  &  Deposit  Co.  v.  West 
Chicago  St.  R.  Co.,  99  111.  App.  486. 

32.  Campbell  v.  Harrington,  93  Mo.  App. 
315.  Rev.  St.  c.  110,  §  34 — Central  Lumber 
Co.  V.  Kelter,  102  111.  App.  333. 

33.  Central  Lumber  Co.  v.  Kelter,  201  111. 
503. 

34.  Sachs  v.  American  Surety  Co.,  72  App. 
Div.   (N.  Y.)   60. 

Sufficiency  of  evidence:  To  show  validity 
of  a  bond  over  a  contention  that  it  was 
fraudulent — Tatum  v.  Tatum's  Adm'r  (Va.) 
43  S.  E.  184.  In  an  action  on  the  bond  of  an 
assistant  bank  cashier  for  negligence  in 
aiding  a  misappropriation  of  funds — Fiala  v. 
Ainsworth  (Neb.)  94  N.  W.  153.  In  an  action 
on  a  contractor's  bond,  evidence  that  it  cost 


over  $1400  to  complete  the  building  after  the 
contractor  abandoned  it,  will  sustain  a  judg- 
ment against  the  sureties  for  $1374.42 — Cen- 
tral Lumber  Co.  v.  Kelter,  201  111.  503. 

35.  Curtiss  v.  Curtiss,  182  Mass.  104. 

36.  An  instruction  as  to  the  burden  of 
proof  of  a  change  in  a  bond  should  be  denied 
where  the  only  evidence  goes  to  show  a 
forgery — Terrill  v.  Tillison   (Vt.)   54  Atl.   187. 

37.  On  a  sale  of  land  for  $190,000,  the 
vendee  assumed  a  mortgage  for  $120,000  and 
gave  a  mortgage  for  $70,000.  The  vendor 
agreed  to  advance  $100,000  as  a  building 
loan,  and  the  vendee  gave  a  bond  to  erect 
certain  buildings.  In  an  action  on  the  bond 
$30,000  were  held  to  be  the  measure  of  dam- 
ages, it  appearing  that  the  premises  were 
worth  $160,000,  and  that  a  deficiency  result- 
ed on  foreclosure  of  the  purchase-money 
mortgage  which  would  not  have  been  occa- 
sioned had  the  buildings  been  erected — Sachs 
V.  American  Surety  Co.,  72  App.  Div.  (NY) 
60. 

38.  Rev.  St.  1899,  §§  464-477.  Held  that 
an  action  on  a  bond  conditioned  for  the 
payment  of  monthly  alimony,  in  which  the 
prayer  was  for  judgment  for  penalty  of  the 
bond,  and  that  execution  issue  for  a  fixed 
amount  then  in  arrears  as  damages."  regard- 
ed the  bond  as  conditioned  for  the  payment 
of  money — Burnside  v.  Wand,   170  Mo.   531. 

39.  Damages  in  an  action  on  a  bond  to 
secure  damages  in  eminent  domain  proceed- 
ings were  properly  made  up  of  the  amount 
of  the  penalty  with  interest  from  the  date 
of  the  breach  of  the  bond — Pennell  v.  Card, 
96  Me.  392.  From  the  time  in  which  pay- 
ment was  due  under  the  pleadings  until  the 
time  for  entering  judgment — Camden  v 
Ward,  67  N.  J.  Law,   558. 


346 


BOUNDARIES. 


§  1 


if  it  cause  the  recovery  to  exceed  the  penalty  of  the  bond  except  where  the  bond 
is  for  the  payment  of  money.** 


BOUNDARIES. 


§  4.  Kstablishment  by  Agrreement  of  Ad- 
joiners. 

§  5.  Establlshinent  by  Arbitration,  Ac- 
tion or  Statutory  Mode. — Right  of  Action; 
Burden  of  Proof;  Admissibility  and  Suffi- 
ciency of  Evidence;  Instructions;  Verdict, 
Judgment  and  Decree;  Incidental  Relation; 
Setting  Aside. 

§  6.      Offenses   Against    Land    Marlis. 


§   1.      Rules    for   Locating:   or   Identifying;. — 

Generally;  Conflicts  Between  Course  and 
Distance  and  Monuments;  Between  Plats, 
Maps  and  Monuments;  Government  Surveys; 
Surveys  or  Descriptions  of  Different  Dates; 
Lost  or  Omitted  Monuments;  Highways, 
Streets  or  Ways  as  Boundaries. 

§  2.  Riparian  or  Littoral  Boundaries. — 
Meander    Lines. 

§  3.  Conflicts  and  Ambigrnities  in  Terms 
Defining^   Boundaries. 

§  1.  Rules  for  locating  or  identifying.  In  general. — Courses  and  distances 
are  to  be  run  by  the  magnetic  meridian.^  A  line  referred  to  as  a  boundary  will 
be  regarded  as  meaning  a  continuous  line.^  Omission  of  a  connecting  word  between 
calls  of  a  deed  is  immaterial.^  Calls  made  under  a  mistake  may  be  disregarded.* 
Interior  lines  need  not  be  found  where  one  of  a  block  of  several  tracts  may  be 
located  by  adjoiners." 

Conflict  between  course  and  distance  and  natural  or  artificial  monuments. — 
Courses  and  distances  peld  to  natural  and  ascertained  objects,^  but  they  must  bo 
clearly  identified  and  not  in  conflict  with  other  natural  objects  called  for  in  the 
description.'^  Natural  monuments  control  measurements,^  so  a  location  by  monu- 
ment will  control  one  by  distance.®  The  actual  location  of  lines  on  the  ground 
will  control  courses  and  distances/"  hence  actual  location  will  control  calls  for  a 
straight  line.^^  Where  lines  fixed  by  course  and  distance  do  not  correspond  with 
calls  for  marked  comers,  they  must  run  straight  between  the  corners,^-  and  if  a 
course  cannot  be  made  to  touch  all  the  natural  objects  called  for,  that  course  should 
be  taken  which  will  satisfy  most  of  them.^^  A  call  for  distance  may  control  an  ar- 
tificial monument.^* 


40.  Under  Code  Civ.  Proc.  §  1915,  Interest 
from  the  breach  of  a  bond  to  erect  a  build- 
ing cannot  be  recovered  where  there  Is  a 
judgment  for  the  full  amount  of  the  penalty 
— Sachs  V.  American  Surety  Co.,  72  App.  Dlv. 
(X.  Y.)   60. 

1.  Ayers  v.  Huddleston  (Ind.  App.)  66  N. 
E.  60. 

2.  A  line  shown  on  a  plat  made  by  a  com- 
missioner of  delinquent  lands  will  control 
lines  from  the  margins  of  the  tract  extend- 
ing partially  through  them  but  which  if  ex- 
tended would  not  meet — Jackson  v.  Land 
Assn.  51  "W.  Va.   482. 

3.  Omission  of  "thence."  the  sense  being 
apparent — Johnson  v.  Harris,  24  Ky.  Law 
Rep.  449.  68  S.  W.  844. 

4.  As  where  one  of  two  sets  of  calls  must 
be  disregarded  and  one  is  found  to  have 
been  made  under  a  mistake  as  to  the  rela- 
tive position  of  surveys — Sellman  v.  Sellman 
(Tex.  Civ.  App.)   73  S.  TV.  48. 

5.  Lehigh  Val.  Coal  Co.  v.  Beaver  Lumber 
Co..   203  Pa.   544. 

6.  Leonard  v.  Forbing  (La.)  33  So.  203. 
Where  the  call  of  a  description  Is  "thence 
up  said  branch  with  Its  meanders  as  follows: 
N.  130  vrs.;  N..  45  deg.  W..  150  vrs.;  N.  3C0 
vrs.,  and  lyn  brs.  X..  70  deg.  W.,  2  vrs.."  the 
meandering  of  the  branch  must  be  taken  as 
a  boundary  to  the  end  of  the  call — Griffin  v. 
Barbee    (Tex.   Civ.    App.)    68    S.   W.    698.     The 


jury  cannot  be  Instructed  to  disregard  calls 
for  natural  objects  because  the  objects  are 
not  found  on  the  course  or  at  the  distance,  if 
there  is  evidence  tending  to  show  that  they 
exist  and  to  justify  a  finding  that  they  are 
those  seen  and  called  for  by  the  surveyor, 
though  they  vary  greatly  from  the  courses 
and  distances  and  make  the  survey  much 
smaller  than  stated — Watkins  v.  King  (C.  C. 
A.)  118  Fed.  524. 

7.  Bell  County  Land  &  Coal  Co.  v.  Hend- 
rickson.  24  Ky.  Law  Rep.  371,  68  S.  W.  842. 

8.  Hall  V.  Caplis   (La.)    33  So.   570. 

9.  Hammond  v.   George    (Ga.)    43   S.   E.    53. 

10.  Trinwith  v.  Smith  (Or.)  70  Pac.  816. 
Conveyance  "to  the  lot  recently  conveyed  to 
A."  where  A.  had  erected  a  fence  and  the 
grantee  understood  that  he  was  purchasing 
only  to  A.'s  lot — Long  v.  Shields,  20  Pa.  Sup. 
Ct.   559. 

11.  The  actual  location  Is  a  question  for 
the  jury — Johnson  v.  Harris,  24  Ky.  Law 
Rep.  449.  68  S.  'W.  844. 

12.  The  ground  marks  were  identified — 
Sloan  V.  King   (Tex.  Civ.  App.)    69  S.  W.   541. 

13.  Kentucky  Land  &  Immigration  Co.  v. 
Crabtree.  24  Ky.  Law  Rep.  743,  70  S.  W.  31. 

14.  Where  the  lateral  line  between  lots 
is  described  as  beginning  at  a  certain  num- 
ber of  feet  from  a  street  corner  and  passing 
through  the  center  of  a  party  wall,  the  call 
for  distance  will  control,  though  placing  the 


§  1 


RULES  FOR  LOCATING. 


347 


Conflicts  between  plats  and  maps  and  monuments. — A  boundary  marked  by 
objects  will  control  a  map,"  so  lines  on  a  plat  are  not  conclusive  as  to  the  actual 
location  of  lines  on  the  ground/^  and  a  plan  made  from  a  survey  marked  on  the 
ground  is  controlled  by  lines  and  corners  fixed  by  the  ground  marks/^  though  not 
affected  by  unidentified  ground  marks;"  hence  a  special  description  of  a  lot  by 
monuments  controls  a  general  description  by  number/®  and  a  survey  ascertained  by 
monuments  on  the  ground  controls  a  recorded  plat.^° 

Government  surveys. — The  lines  established  by  a  government  survey,  if  pos- 
sible of  ascertainment,  control  as  to  a  controverted  section  line,^^  and  corners  and 
monuments  fixed  by  it  control  all  other  surveys,"  and  cannot  be  altered  whether 
properly  placed  or  not.^^  The  official  plat  controls  field  notes  of  a  meander  line.^* 
Wliere  a  corner  is  not  found  or  its  location  satisfactorily  proven,  the  field  notes 
of  the  government  survey  control  and  are  prima  facie  evidence  of  the  true  line/' 
though  the  plats  and  field  notes  may  be  overcome  by  other  evidence,^^  such  as  mon- 
uments in  the  ground  marking  corners.-^ 

Conflicts  between  surveys  or  descriptions  of  different  date.^^ — Courses  and  dis- 
tances in  a  senior  survey  control  marked  lines  of  a  junior  survey,  where  there  is 
no  evidence  of  the  original  junior  survey  or  of  possession  or  acquiescence. ^^  Loca- 
tion of  a  junior  survey  over  an  older  survey  does  not  give  the  land  of  the  older 
survey  to  the  junior  one.®"  A  former  grant  will  control  a  subsequent  overlapping 
grant  by  the  same  grantor,  there  being  a  description  by  metes  and  bounds.®^ 

Lost  or  omitted  monuments.^^ — Adjoiners  fix  the  location  if  they  correspond 
to  the  calls,  where  the  marks  and  monuments  on  the  ground  cannot  be  found  to 


line  four  Inches  beyond  the  center  of  the 
party  wall — Ehrenreich  v.  Froment  (N.  Y.) 
73  App.  Div.   213. 

15.  Where  a  patent  of  pueblo  lands  Is- 
sued to  the  city  of  San  Francisco  excepted 
the  Presidio  military  reservation,  but  did  not 
fix  the  boundaries  thereof  In  courses  and 
distances,  though  a  map  showing  the  bound- 
aries was  attached  to  and  made  a  part  of 
the  patent,  evidence  of  original  location  of 
the  boundary  of  the  reservation  as  marked 
by  monuments  on  the  ground  before  the  map 
was  made  Is  admissible — Wheeler  v.  Benja- 
min, 136  Cal.  51. 

16.  The  question  of  the  location  of  a 
starting  point  is  for  the  jury,  where  there 
was  evidence  as  to  land  marks  determining 
its  location  and  also  as  to  its  location  by 
means  of  distances  from  a  range  line  deter- 
mined only  by  a  plat — Ayers  v.  Huddleston 
(Ind.  App.)   66  N.  E.  60. 

17.  Coleman  v.  Lord,  96  Me.  192. 

18.  If  a  deed  conveys  a  lot  by  number  ac- 
cording to  a  plan  which  is  referred  to,  and 
gives  the  boundaries  which  correspond  ex- 
actly with  those  appearing  on  the  plan,  the 
lines  and  surveys  of  the  plan  govern  though 
there  are  unidentified  stakes  on  the  ground 
not  corresponding  with  the  survey — Coleman 
v.  Lord.  96  Me.  192. 

19.  The  land  from  which  lots  were  sold 
was  monumented  and  also  laid  out  by  map — 
Stanwood  v.  Beck  (N.  J.  Ch.)   52  Atl.  353. 

20.  Survey  of  a  city  addition — Olson  v. 
Seattle,  30  Wash.  687. 

21.  It  is  the  duty  of  the  court  to  ascer- 
tain if  possible  the  monuments  established 
by  the  government  survey  and  the  line  as 
indicated — McGray  v.  Monarch  Elevator  Co. 
(S.  D.)   91  N.  W.  457. 


22.  Clark  v.  Thornburg  (Neb.)  92  N.  V^'. 
1056;  Knoll  v.  Randolph   (Neb.)   92  N.  W.  195. 

23.  Trinwith  v.  Smith   (Or.)   70  Pac.  816. 

24.  Hanson   v.   Rice    (Minn.)    92  N.   W.   982. 

25.  Knoll  V.  Randolph  (Neb.)  92  N.  W. 
195;  Clark  v.  Thornburg  (Neb.)  92  N.  W 
1056. 

26.  Testimony  that  lines  run  from  an 
original  corner  as  marked  on  the  ground 
show  the  plats  and  field  notes  grossly  inac- 
curate and  that  extensive  improvements  had 
been  made  according  to  the  corners  as  mark- 
ed— Rowell  V.  Weinemann  (Iowa)  93  N.  W. 
279.  Evidence  of  four  old  surveyors  as  to 
finding  and  locating  on  the  ground  the  orig- 
inal corners  of  a  government  survey  and  of 
nine  witnesses  as  to  finding  such  monuments, 
together  with  evidence  that  improvements 
had  been  made  and  highways  established  for 
many  years  according  to  such  location,  is 
sufficient  to  overcome  the  plats  and  field 
notes  of  the  government  survey — Rowell  v 
Clark  (Iowa)   93  N.  W.  280. 

27.  Rowell  v.  Weinemann  (Iowa)  93  N. 
W.  279. 

28.  Surveyors'  markings  within  the  town- 
ship are  more  reliable  as  to  the  location  of  a 
section  line  than  the  markings  of  an  adjoin- 
ing township  surveyed  a  year  later — Hall  v. 
Caplls   (La.)    33  So.  570. 

29.  Hornberger  v.  Giddings  (Tex.  Civ 
App.)   71  S.  W.  989. 

30.  Lehigh  Val.  Coal  Co.  v.  Beaver  Lum- 
ber Co.,   203  Pa.  544. 

31.  Sandy  River  Cannel  Coal  Co.  v.  White- 
house  Cannel  Coal  Co.,  24  Ky.  Law  Rep 
1653,  72  S.  W.  298. 

32.  On  a  conveyance  by  metes  and  bounds. 
a  corner  not  marked  by  a  monument  will  be 
determined  by  courses  and  distances — Ayers 
v.  Huddleston    (Ind.  App.)    66  N.   E.   60. 


348 


BOUNDARIES. 


§  2 


establish  the  location  of  individual  surveys  of  a  block  of  surveys,  and  when  the 
monuments  cannot  be  found  and  the  adjoiners  do  not  correspond  with  the  calls, 
courses  and  distances  govern.^^ 

Highways,  streets,  or  ways  as  boundaries. — A  state  grant  of  land  bordering  on 
a  highway  is  presumed  to  convey  title  to  the  center  thereof.^*  Where  a  way  is  made 
a  boundary,  a  grantee  takes  to  the  center  of  it  with  a  right  of  way  over  the  entire 
surf  ace.^^  The  presumption  that  a  description  limiting  a  tract  by  an  existing  road 
carries  the  fee  to  the  center  may  be  supported  by  other  circumstances,^^  and  there 
must  be  an  express  exclusion  to  overcome  it."  The  inclusion  or  exclusion  may  be 
indicated  by  the  description.^®  If  a  stone  monument  is  called  for  on  the  side  of 
a  street,  the  street  as  well  as  the  stone  becomes  a  monument.^®  In  Illinois,  the 
purchaser  of  a  platted  lot  takes  to  the  center  of  a  street,  where  the  lot  is  described 
by  reference  to  the  plat,  though  there  has  been  no  effectual  statutory  dedication 
of  the  streets  and  alleys  described,*"  though  in  ISTew  York  it  is  held  that  the  street 
must  have  been  opened  or  used.*^  A  street  named  as  a  boundary  will  be  presumed 
to  mean  the  street  as  actually  opened  and  in  use.*^ 

§  2,  Riparian  or  littoral  boundaries. — Wliere  a  stream,  navigable  in  fact, 
is  the  boundary,  title  extends  to  its  center,  unless  there  is  an  expressed  intent  other- 
wise;*^ the  same  is  true  of  a  non-navigable  stream,**  but  not  where  there  is  an  ex- 
press call  for  low  water  mark.***  Where  title  to  land  along  a  navigable  river  ex- 
tends only  to  the  original  low  water  mark,  by  the  law  of  the  state,  the  low  water 
mark  remains  the  boundary  on  the  addition  of  gradual  accretions,  but  where  there 
is  a  cutting  of  a  natural  channel  by  the  stream  suddenly,  the  title  to  the  abandoned 
channel  remains  in  the  state.*®  There  is  a  rebuttable  presumption  that  an  owner 
bordering  on  a  canal  has  title  to  the  center  of  the  stream.*^ 


33.  Lehig-h  Val.  Coal  Co.  v.  Beaver  Lum- 
ber Co.,  203  Pa.  544. 

34.  Paige  V.  Schenectady  R.  Co.  (N.  T.) 
77  App.  Div.  571. 

35.  A  way  is  made  a  boundary  by  a  de- 
scription "running  nortlierly  of  said  road 
four  rods,  thence  easterly  by  a  way  twenty 
feet  wide,  nineteen  rods,"  though  the  dis- 
tance indicated  on  the  road  does  not  quite 
reach  to  the  way,  and  the  fact  that  the  way 
la  not  laid  out  at  the  time  of  the  convey- 
ance is  immaterial,  as  are  other  facts  rela- 
tive to  the  utility  of  such  way — LeMay  v. 
Furtado,  182   Mass.   280. 

3G.  Recital  of  purpose  to  dispose  of  en- 
tire estate — Van  Winkle  v.  Van  Winkle  (N. 
Y.)   39  Misc.  Rep.  593. 

37.  Van  TVinkle  v.  Van  Winkle  (N.  Y.) 
39  Misc.  Rep.  593. 

»S.  A  description  of  land  as  on  the  side 
of  a  highway  beginning  at  a  certain  point 
and  thence  by  courses  and  distances,  the 
first  being  along  said  highway  a  certain  dis- 
tance, excludes  the  highway,  and  further 
evidence  of  such  exclusion  may  be  found  in 
that  the  description  by  courses  and  distances 
conveys  the  purported  amount  without  in- 
cluding the  highway — Kennedy  v.  Mineola, 
H.  &  F.  Traction  Co.  (N.  Y.)  77  App.  Div. 
484.  The  deed  to  a  tract  starting  at  a  point 
on  the  northerly  side  of  a  street,  thence 
northerly  a  certain  distance  and  at  right 
angles  a  certain  distance,  thence  southerly 
to  the  northerly  side  of  the  said  street, 
thence  westerly  along  the  northerly  side  to 
the  place  of  beginning,  does  not  convey  any 
part  of  the  street — Jacquemin  v.  Finnegan 
(N.  Y.)  39  Misc.  Rep.  628.  Where  one  platted 
certain   property  conveyed  a   lot  by  descrip- 


tion, "northerly  till  It  strikes  the  southerly 
line  of"  a  street  mentioned  in  the  plat  be- 
ginning, "thence  to  the  line  of  the  said  street 
easterly,"  the  title  to  the  south  half  of  the 
street  being  in  the  grantor,  the  deed  carried 
title  to  the  middle  thereof — Healey  v.  Kelly 
(R.  I.)   54  Atl.  588. 

39.  It  was  held  that  under  a  conveyance 
making  such  a  call  the  land  to  the  street 
was  conveyed  though  the  stone  monument 
by  error  had  been  placed  a  few  feet  distant 
from  the  edge  of  the  street.  The  land  had 
also  been  laid  out  by  map,  and  upon  the  map 
the  street  was  the  boundary  of  the  lots  con- 
veyed, and  reference  to  the  lots  by  number 
as  indicated  on  the  map  was  made  in  the 
conveyance — Stanwood  v.  Beck  (N.  J.  Ch.) 
52  Atl.  353. 

40.  Thompson  v.  Maloney,  199  111.   276. 

41.  Where  on  a  map  lots  and  streets  were 
designated,  but  a  lot  marked  as  a  street  had 
never  been  opened  or  used  as  such,  the 
grantee  of  an  adjacent  lot  did  not  obtain 
any  easement  therein  or  take  to  the  center 
of  it.  though  his  lot  was  described  as  extend- 
ing' "to  land  marked  street" — Downes  v. 
Dimock  &  Fink  Co.    (N.  Y.)   75  App.  Div.  513. 

42.  Southern  Iron  Works  v.  Central  of 
Georgia  R.  Co.,  131  Ala.  649. 

43.  Webster  v.  Harris  (Tenn.)  69  S.  W. 
782;  Chesbrough  v.  Head,  23  Ohio  Cir.  Ct.  R. 
427. 

McBride  v.  Whitaker   (Neb.)    90  N.  W. 


44, 

966. 

45, 
782. 

46. 

812. 


Webster    v.    Harris    (Tenn.)    69    S.    W. 
Stockley  v.  Cissna   (C.  C.   A.)    119  Fed. 


§4 


ESTABLISHMENT   BY   AGREEMENT. 


349 


Meander  lines. — The  stream  and  not  the  meander  line  indicated  on  a  public 
survey  is  the  boundary  of  the  riparian  owner,**  and  a  United  States  grant  of  land 
bordering  on  a  navigable  meandered  river  conveys  title  to  high  water  mark.*®  Gov- 
ernment lands  bordering  on  a  non-navigable  stream  are  bounded  by  the  thread  of 
the  stream,^°  though  in  certain  states  high  water  mark  is  the  boundary."^^  The 
body  of  water  may  be  one  that  should  not  have  been  meandered  in  the  government 
survey,^^  but  where  there  is  no  adjacent  body  of  water  proper  to  be  meandered, 
the  meander  line  if  consistent  with  other  calls  and  distances  ma}'  be  the  boundary 
of  a  fractional  lot.°^ 

TJnsurveyed  islands  in  a  non-navigable  stream  lying  between  the  thread  of 
the  stream  and  the  shore  line,  or  parts  of  islands  so  lying,  belong  to  the  grantee 
of  the  government  whosQ  grant  is  bounded  by  a  survey  showing  a  meandered  line 
along  the  river  bank.®*  In  Iowa,  if  meandered  waters  dry  up,  the  title  of  the  shore 
owners  does  not  extend  beyond  the  boundaries  fixed  by  the  original  patent,  except 
as  to  accretions  or  relictions.^®  Lateral  boundaries  of  lands  between  the  meander 
line  and  the  shore  of  a  meandered  inland  navigable  lake  are  fixed  by  extending  the 
side  lines  of  the  contiguous  lots  on  a  deflected  course  from  their  intersection  vv^ith 
the  meander  line  toward  a  point  in  the  center  of  the  lake.®^ 

§  3.  Conflicts  and  ambiguities  in  terms  defining  boundaries. ^^ — Where  ad- 
joining tracts  are  conveyed  together,  the  omission  in  describing  one  of  the  tracts 
of  the  line  which  would  constitute  the  division  line  between  them  is  not  material.®* 

§  4.  Establishment  by  agreement  of  ad  joiners. — A  practical  location  of  a 
boundary  may  be  established  by  agreement  and  acquiescence  of  the  interested  par- 
ties,®* and  a  line  established  by  consent  is  binding  in  the  absence  of  fraud,  unfair 


47.  "Warren     v.     Gloversvllle,     114     N.     T. 

State  Rep.   912. 

48.  Johnson  v.  Tomlinson,  41  Or.  198,  68 
Pac.  406;  Hendricks  v.  Feather  River  Canal 
Co.,  138  Cal.  423.  71  Pac.  496.  Meander  lines 
being  run  merely  for  the  purpose  of  deter- 
mining the  amount  of  land — Chesbrough  v. 
Head,  23  Ohio  Cir.  Ct.  R.  427. 

49.  In  a  case  where  the  meander  line  was 
above  high  water  mark,  and  the  bank  of 
the  river  was  perpendicular,  there  being  no 
distinction  between  high  and  low  water 
marks  and  no  shore  line,  the  state  has  no 
title  to  land  created  by  erosion  and  filling 
which  it  may  grant  to  a  person  other  than 
the  government  patentee — Washougal  &  L. 
Transp.  Co.  v.  Dallas.  P.  &  A.  Nav.  Co.,  27 
Wash.  490,  68  Pac.  74. 

50.  Construing  R.  S.  U.  S.  §§  2396,  2397 — 
Kirby  v.  Potter,  138  Cal.   686,  72  Pac.   338. 

51.  "Where  the  government  survey  shows 
a  meander  line,  and  lots  adjacent  to  a  non- 
navigable  stream  are  conveyed  by  number 
according  to  the  government  plat,  the  land 
between  the  meander  line  and  high  water 
mark  is  conveyed.  Following  the  Iowa  de- 
cisions— In  re  "Valley,   116  Fed.   983. 

52.  Carr  v.  Moore  (Iowa)  93  N.  W.  52; 
Bryan  v.  Same,  Id. 

53.  Security  Land  &  Exploration  Co.  v. 
Burns,  87  Minn.  97;  Same  v.  "Weckey,  Id. 
One  holding  title  from  the  government  to 
land  in  the  south  half  of  a  section,  the 
south  section  being  the  southern  boundary, 
and  the  northern  boundary  being  indicated 
by  a  meander  line,  cannot  claim  similar  land 
lying  between  the  meander  line  and  the  half 
section  line  on  the  theory  that  the  lateral 
line  is  the  northern  boundary — Schlosser  v. 
HempMll  (Iowa)  90  N.  W.  842. 


"Whitaker   (Neb.)    90  N.  W. 
(Iowa)    93    N.    W.    52; 


54.  McBride 
966. 

55.  Carr    v.    Moore 
Bryan  v.  Same.  Id. 

56.  Such  lands  are  owned  as  if  accretions 
or  relictions — Hanson  v.  Rice  (Minn.)  92  N 
"W.    982. 

57.  Other  calls,  lines,  etc.,  in  a  descrip- 
tion may  be  resorted  to  if  it  is  contended 
that  a  tree  has  been  mistakenly  designated 
as  the  northeast  instead  of  the  northwest 
corner — "White  v.  Smith  (Tex.  Civ.  App.)  67 
S.  "W.  1028.  "Where  land  is  described  as  run- 
ning to  the  top  of  a  mountain,  thence  along 
the  top  of  a  mountain  to  certain  steep  rocks, 
thence  along  such  rocks  so  as  to  include  all 
stone  that  falls,  an  intention  is  indicated  to 
convey  only  to  the  top  of  the  mountain;  and 
a  description  of  an  eastern  boundary  as  be- 
ing along  the  east  bluff  of  the  steep  part  of 
the  mountain,  and  as  running  along  the  top 
of  the  mountain,  indicates  an  intention  to  in- 
clude land  to  the  bluff — "Weiant  v.  Rockland 
Lake  Trap  Rock  Co.  (N.  Y.)  61  App.  Div. 
383.  "Where  a  call  was  for  an  outcrop  of 
conglomerate  rock,  a  ledge  over  one  thou- 
sand feet  in  length  which  closes  the  bound- 
ary may  be  held  to  be  the  call,  though  there 
was  another  ledge  two  hundred  feet  long 
which  did  not  close  the  boundary  and  was  a 
spur  from  the  large  one — Miller  v.  Cure,  205 
Pa.   168. 

58.  Johnson  v.  Harris,  24  Ky.  Law  Rep 
449.  68  S.  "W.  844. 

59.  Sufficiency  of  evidence  to  show  bound- 
ary by  agreement — Egan  v.  Light  (Neb.)  93 
N.  "W.  859.  Acquiescence  in  a  boundary  l:ne 
for  the  period  of  limitations  establishes  a 
practical  location^ — Benz  v.  St.  Paul  (Minn.) 
93  N.  "W.   1038.     Where  a  boundary  has   been 


350 


BOUNDARIES. 


§  5 


dealing,  or  superior  knowledge  of  one  party/"  though  the  agreed  boundary  is  not 
the  true  line;*^^  but  there  must  not  have  been  a  mutual  mistake.®*  Grantees  are 
also  bound.®^     The  question  of  establishment  may  be  for  the  jury.®* 

Where  one  with  knowledge  of  the  true  line  allows  another  party  to  encroach 
and  subject  himself  to  expense,  as  would  not  have  been  done  had  the  line  been  in 
dispute,  a  practical  location  may  be  established,^^  but  it  is  not  sufficient  to  establish 
a  boundary  by  estoppel  that  a  fence  be  built  on  what  is  supposed  to  be  the  true 
line.''®  A  vendor  who  points  out  boundaries  is  estopped  from  disputing  their 
location,  the  purchaser  taking  in  reliance  thereon.®^ 

An  adjoining  owner  may  claim  to  the  true  line,  though  he  has  by  mistake  pre- 
viously conformed  to  an  erroneous  one.®^ 

The  acts  of  a  surveyor  in  accepting  possession  from  a  sheriff  in  a  former  suit 
do  not  create  an  estoppel  on  his  employer,®"  An  agreement  to  have  an  existing  lin5 
resurveyed  is  not  an  admission  of  its  incorrectness,^*'  nor  is  abandonment  of  a  survey 
shown  by  a  petition  for  a  resurvey  to  have  the  line  actually  rim  on  the  ground.''* 

§  5.     Establisliment  by  arbitration,  action,  or  statutory  mode.     Right  of  ac- 


Intentlonally  established  by  the  adjoining 
owners  and  maintained  for  more  than  twen- 
ty years,  it  cannot  be  questioned — "Went- 
worth  V.  Braun  (N.  Y.)  38  Misc.  Rep.  702. 
Especially  where  a  fence  and  subsequently  a 
brick  wall  had  been  built  on  the  same  line — 
Wentworth  v.  Braun  (N.  T.)  78  App.  Div. 
6.'?4.  An  injunction  may  be  had  against  the 
removal  of  a  fence  on  a  line  established  for 
more  than  twenty  years,  and  plaintiff  is  not 
restricted  to  a  suit  at  law  on  the  ground 
that  the  controversy  involved  a  disputed 
boundary  line,  defendant  having  torn  the 
fence  down  and  erected  a  new  one  on  plain- 
tiff's land,  claiming  that  it  was  on  the  true 
line — F.  H.  Wolf  Brick  Co.  v.  Lonyo  (Mich.) 
9  Detroit  Leg.  N.  566,  93  N.  W.  251.  Occu- 
pancy in  accordance  with  a  fence  recogni'zed 
as  a  division  line  for  more  than  ten  years 
causes  the  line  established  to  become  the 
division  line — Lawrence  v.  \%''ashburn  (Iowa) 
93  N.  W.  73;  Clark  v.  Thornburg  (Neb.)  92 
N.  W.  1056.  Twenty-five  years — Graham  v. 
Gorman  (Iowa)  93  N.  W.  595.  Twenty  years 
— F.  H.  Wolf  Brick  Co.  v.  Lonyo  (Mich.)  9 
Detroit  Leg.  N.  566,  93  N.  W.  251.  Where  a 
brick  wall  is  erected,  supposedly  correspond- 
ing to  the  line  of  a  lot,  and  both  parties 
acquiesce  in  the  line  established  for  seven- 
teen years,  they  are  bound,  though  there  is 
a  slig-ht  error  and  though  the  brick  wall 
did  not  extend  the  entire  length  of  the  lot — 
O'Callaghan  v.  T\''hisenand  (Iowa)  93  N.  W. 
579.  Where  after  an  agreement  as  to  a  di- 
vision line  between  adjoining  owners  they 
hold  in  acquiescence  therewith  for  fourteen 
years,  the  line  becomes  established  and  an 
adjo'nlng  owner  is  entitled  to  have  his  deed 
reformed  so  as  to  make  the  established  line 
the  boundary — Thiessen  v.  Worthington,  41 
Or.  145,  68  Pac.  424. 

60.  Grogan  v.  Leike,  22  Pa.  Super.  Ct.  59. 
An  agreement  that  a  hedge  is  a  boundary 
line  is  conclusive  as  between  the  adjoining 
owners — Brown  v.  Johnson  (Tex.  Civ.  App.) 
73  S.  V>'.  49.  A  dividing  line  established  by 
parol  agreement,  accompanied  by  occupancy 
in  accordance  therewith  for  more  than  the 
period  of  limitation,  and  the  maintenance  of 
a  fence  on  the  line.  Is  binding  on  the  parties 
and  their  successors — Dierssen  v.  Nelson,  138 
Cal.  394.  71  Pac.  456. 


61.  Lynch  v.  Egan  (Neb.)  93  N.  W.  775; 
Egan  V.  Light  (Neb.)   93  N.  W.  859. 

C2.  Where  there  has  been  an  encroach- 
ment by  a  building  resulting  from  a  mistake 
as  to  a  boundary  line,  a  conveyance  of  a 
strip  of  land  to  the  encroacher  for  the  pur- 
pose of  giving  him  title  to  the  land  occupied 
by  his  building  does  not  amount  to  a  prac- 
tical location,  both  parties  supposing  they 
know  the  location  of  the  true  boundary  line, 
and  -where  the  strip  as  conveyed  contained 
a  part  of  the  lot  already  owned  by  the  en- 
croaching owner — Benz  v.  St.  Paul  (Minn.) 
93  N.  W.   1038. 

63.  Alexander  v.  Parks,  24  Ky.  Law  Rep. 
2113,  72  S.  W.   1105. 

64.  Though  there  is  no  conflict  of  evi- 
dence as  to  the  agreement,  where  there  is  a 
conflict  as  to  whether  one  party  did  not  make 
false  and  fraudulent  representations  as  to 
what  were  the  true  boundaries  and  a  con- 
flict also  as  to  the  advisability  of  land  marks 
— Perry  v.  Hardy,  71  N.  H.  151.  Where  after 
the  purchase  of  adjoining-  tracts  separately 
the  owner  digs  a  canal  at  a  point  other  than 
the  former  division  line,  and  there  is  evi- 
dence that  he  regarded  the  portion  of  land 
on  either  side  as  separate  tracts  and  desig- 
nated them  by  terms  as  implied  in  his  will, 
the  question  of  whether  a  new  boundary  was 
created  is  for  the  jury — Harper  v.  Anderson, 
130  N.  C.  538.  Where  an  agreement  to  sub- 
mit the  location  of  a  boundary  to  surveyors 
appointed  by  each  of  the  parties  is  contro- 
verted, the  question  is  for  the  jury — Fran- 
cois V.  Taylor,  71  N.  H.   222. 

65.  Benz  v.  St.  Paul  (Minn.)  93  N.  W. 
1038. 

66.  In  this  case  there  was  no  sho^ving 
that  there  had  been  a  dispute  or  thf.t  it  was 
known  that  there  was  an  uncertainty  as  to 
the  line — Peters  v.  Reichenbach,  114  Wis. 
209. 

67.  Government  subdivisions — Rowell  V, 
Weinemann   (Iowa)   93  N.  "U^.  279. 

68.  Patton  v.  Smith   (Mo.)   71  S.  W.  187. 

69.  Hornberger  v.  Giddings  (Tex.  Civ. 
App.)   71  S.  W.  989. 

70.  Interrupting  a  claim  of  adverse  pos- 
session— Baty  V.  Elrod   (Neb.)    92  N.  'W.   1032. 

71.  Petition  in  1808  by  owner  of  a  block 
of    tracts    to    have    lines    run    in    compliance 


65 


ESTABLISHMENT  BY  ACTION. 


35) 


tion. — Proceedings  for  location  of  the  boundaries  of  a  common  landing  place 
cannot  be  resorted  to  for  the  purpose  of  determining  its  legal  existence,  though  if 
disputed  the  boundaries  may  nevertheless  be  located  without  prejudice  to  the  right 
to  determine  the  existenceJ^  Findings  of  the  county  surveyor  in  proceedings 
to  establish  boundaries  are  not  binding  if  it  appear  from  the  facts  that  the 
boundary  in  question  is  not  uncertain  or  unestablished.'^^  There  must  be  a  re- 
quest for  a  proper  and  legal  survey  and  an  opportunity  for  compliance  therewith 
before  the  court  may  be  asked  to  establish  a  line  between  adjoining  owners.'* 

An  application  for  the  establishment  of  a  boundary  by  public  authorities  may 
be  required  by  statute  to  be  in  writing/^  The  jurisdiction  cannot  be  objected  to 
after  an  answer  without  demurrer.'^® 

Burden  of  proof. — The  presumption  of  the  correctness  of  lines  established 
may,  by  a  lapse  of  time,  become,  if  not  conclusive,  rebuttable  only  by  clear  and 
satisfactory  proof.'^^  If  the  government  corners  cannot  be  found,  the  burden  is 
on  the  person  seeking  to  establish  them  at  a  point  other  than  called  for  by  the  field 
notes,'^*  and  so  the  burden  is  on  one  asserting  that  a  stream  mentioned  as  a  boundary 
has  disappeared  and  does  not  correspond  to  existing  streams  in  the  vicinity  of  the 
land.^8 

Admissibility  of  evidence. — Holdings  as  to  the  admissibility  of  particular 
classes  of  evidence,  such  as  field  notes,  plats,  surveyors'  reports  and  opinions,  are 
grouped  below.®°  Evidence  of  the  reputation  of  a  boundary  as  existing  as  an 
ancient  line  is  admissible^^  if  not  too  recent.*^ 


with    act    of   1785 — Lehigh   Val.    Coal    Co.    v. 
Beaver  Lumber  Co.,  203  Pa.  544. 

72.  R.  S.  L.  c.  48,  §  102 — Gardner  v.  Essex 
County  Com'rs  (Mass.)    66  N.  E.  793. 

73.  B.  &  C.  Comp.  §§  4907,  4909,  4910 — 
Egan  V.  Finney  (Or.)  72  Pac.  133. 

74.  Ayers  v.  Huddleston  (Ind.  App.)  66  N. 
E.   60. 

75.  A  proceeding  under  Civ.  Code.  §  3244, 
for  the  processioning  of  land  may  be  dis- 
missed for  insufficiency  of  proceeding  where 
there  is  no  written  application — Ballard  v. 
Haines,   115  Ga.   S47. 

76.  Bill  to  enjoin  the  removal  of  a  line 
fence — F.  H.  Vv^olf  Brick  Co.  v.  Lonyo  (Mich.) 
9  Detroit  Leg.  N.  566.  93  N.  W.  251. 

77.  "Where  for  thirty  years  a  fence  has 
been  maintained  on  a  line  bordering  a  street, 
and  the  city  authorities  have  permitted  it  to 
remain,  though  for  twenty  years  they  have 
knowledge  of  a  shortage  in  the  land  orig- 
inally platted — Corey  v.  Ft.  Dodge  (Iowa) 
92  N.  W.  704. 

78.  Knoll    V.    Randolph    (Neb.)    92    N.    W. 


195. 
79. 
SO. 


Leonard  v.  Porbing,  10^  La.  220. 

For  admissibility  of  a  judgment  In  a 
prior  suit,  objected  to  on  the  ground  that 
the  line  was  not  in  controversy  therein; 
that  a  corner  therein  did  not  correspond 
with  the  call  in  the  patent,  and  because  the 
call  and  the  judgment  presented  a  patent 
ambiguity,  see  Dillingham  v.  Smith  (Tex. 
Civ.  App.)  70  S.  W.  791.  It  may  be  shown 
that  a  railroad  track  had  been  moved,  where 
a  purveyor  locating  the  line  testified  that  he 
had  taken  the  center  as  a  starting  point, 
assuming  that  the  track  had  been  located  in 
the  center  of  the  right  of  way  and  not 
moved — Anderson  v.  Wirth  (Mich.)  9  De- 
troit Leg.  N.  254.  91  N.  "W.  157.  Where  there 
Is  a  dispute  as  to  a  boundary  line,  evidence 
of    establishment   of   a   boundary   by   consent 


is  not  an  attempted  construction  of  the 
deeds — Dierssen  v.  Nelson,  138  Cal.  394,  71 
Pac.  456.  "Where  in  a  patent  the  intent  was 
evident  to  exclude  the  Presidio  military  res- 
ervation, oral  evidence  to  show  the  location 
of  an  ancient  fence  and  cannon  marking  the 
boundary  is  admissible  as  is  the  testimony 
of  engineers  with  pints  to  illustrate  the  lo- 
cation of  these  objects  in  connection  with 
the  premises  in  dispute,  though  there  was 
an  erroneous  map  attached  to  the  patent  ap- 
parently indicating  the  boundary — "Wheeler 
V.  Benjamin,  136  Cal.  51,  68  P.  313.  A  deed 
which  does  not  locate  any  line  or  corner  of 
the  land  in  controversy  is  not  admissible  to 
show  a  boundary  line,  though  in  connection 
with  evidence  of  marks  made  at  the  time  of 
conveyance — Clark  v.  Gallagher,  74  "Vt.  331. 
Where  a  boundary  is  described  as  a  public 
road  and  two  roads  are  shown  to  have  been 
in  existence  when  the  deed  was  executed, 
either  of  which  would  have  satisfied  the  call, 
proceedings  of  the  county  commissioners  of 
the  county  to  establish  a  road  answering  the 
description  are  admissible — Davis  v.  Black- 
sher   Co.,    131   Ala.   401. 

Plat«.  The  original  plat  of  a  survey  is 
admissible  and  of  great  weight  in  determin- 
ing the  original  location  of  lines  and  cor- 
ners— Bell  County  Land  &  Coal  Co.  v.  Hend- 
rickson,  24  Ky.  Law  Rep.  371,  68  S.  W.  842. 
Surveys  and  plats  made  in  partition  to  which 
defendant  was  not  a  party  are  inadmissible 
on  an  issue  as  to  boundary — Harper  v.  An- 
derson, 130  N.  C.  538.  A  plat  is  adm.issible 
over  an  objection  that  it  was  made  by  per- 
sons without  title  where  the  lot  in  contro- 
versy was  purchased  with  reference  to  the 
plat,  and  it  was  offered  to  show  the  location 
of  the  lot  in  connection  with  the  shore  line 
— Schwede  v.  Hemrich,  29  Wash.  124,  69  Pac. 
643. 

Field   notes.     The   original   field    notes    are 


352 


BOUNDARIES. 


§    5 


Sufficiency  of  evidence. — Evidence  of  a  nonexpert  as  to  the  location  of  a  line 
from  existing  government  monuments  may  overcome  that  of  surveyors  locating  a 
different  line  independent  of  monuments.®^  Miscellaneous  holdings  as  to  sufficiency 
in  particular  cases  are  grouped  below.** 

Questions  of  law  and  fact. — The  location  of  a  boundary  line  is  a  question  of 
fact.^^  It  is  a  question  for  the  jury  whether  a  line  has  been  agreed  on  as  one  es- 
tablished by  government  survey  or  acquiesced  in  as  a  true  division  line.*® 

Instructions. ^"^ — An  estoppel  should  not  be  submitted  where  the  pleadings  do 
not  warrant  it.**  The  jury  may  be  instructed  that  a  natural  object  clearly  proved 
corresponds  to  the  description  in  the  writing.** 

Verdict  and  judgment  or  decree. — A  verdict  which  calls  for  a  straight  line  and 
fixes  three  points,  one  of  which  is  not  in  the  line,  is  too  uncertain  to  support  a 
judgment.®"  A  decree  referring  to  a  government  survey  specifically  may  be  suffi- 
cient.®^    The  judgment  must  conform  to  the  verdict.®^ 


admissible  in  behalf  of  either  party.  Where 
the  field  notes  have  been  introduced  In  evi- 
dence by  plaintiff,  defendant  may  show  by 
the  surveyor  who  ran  lines  contended  for 
by  him,  that  they  correspond  with  certain 
calls  of  the  original  notes — Hamilton  v. 
Saunders   (Tex.  Civ.  App.)   73  S.  W.  1069. 

Sur»'eys  and  opinions  of  surveyors.  Where 
a  branch  was  the  boundary,  though  course 
and  distance  was  also  given,  the  opinion  of 
surveyors  that  the  line  should  be  run  by 
course  and  distance  rather  than  by  follow- 
ing the  branch  is  inadmissible — Griffin  v. 
Barbee  (Tex.  Civ.  App.)  68  S.  W.  698.  Evi- 
dence of  an  expert  as  to  a  different  result 
obtained  by  a  survey  is  proper  to  rebut  evi- 
dence of  another  expert  as  to  a  survey 
which  he  had  made  from  the  same  starting 
point — Clark  v.  Gallagher,  74  Vt.  331.  Where 
the  boundary  of  a  lot  is  in  controversy  and 
its  limits  are  fixed  by  a  plat  in  which  it  is 
described  by  course  and  distance  from  a 
specified  starting  point,  a  survey  made  for 
the  purpose  of  straightening  streets  begin- 
ning at  an  arbitrary  point  other  than  that 
specified  in  the  plat  is  not  admissible — Trot- 
ter v.  Stayton,  41  Or.  117,  68  Pac.  3.  The 
fact  that  on  making  a  subsequent  survey 
the  surveyor  began  on  the  other  end  of  the 
line  will  not  cause  it  to  be  rejected — Shrake 
V.  Laflin   (Neb.)   92  N.  W.  184. 

81.  Kentucky  Land  &  Immigration  Co.  v. 
Crabtree.   24   Ky.   Law  Rep.   743,   70   S.   W.    31. 

82.  Evidence  that  by  reputation  a  certain 
tree  was  a  beginning  corner  is  inadmissible 
where  the  witnesses  testify  that  they  had 
not  heard  that  it  was  such  corner  until  after 
a  date  when  a  surveyor  had  been  unable  to 
make  a  resurvey  without  the  assistance  of 
the  surveyor  who  had  made  the  original 
survey  in  finding  the  starting  point,  such 
evidence  being  too  recent  and  not  ante  litem 
motam — Westfelt  v.   Adams,   131   N.   C.   379. 

83.  Baty  v.  Elrod   (Neb.)   92  N.  W.   1032. 

84.  McCulloch  V.  Patman  (Tex.  Civ.  App.) 
69  S.  W.  1012.  To  show  that  a  channel  in- 
dicated by  an  original  survey  was  not  ca- 
pable of  location  by  either  natural  or  arti- 
ficial land  marks — Shrake  v.  Laflin  (Neb.) 
92  N.  W.  184.  To  establish  that  a  fence  was 
built  on  the  line  of  an  original  survey — Gil- 
man  v.  Brown.  115  Wis.  1.  Evidence  that  a 
fence  was  observed  to  correspond  with  at 
least  one  of  the  stakes  of  an  original  survey 
is  not  overcome  by  measurements  not  con- 
nected with  points   established  to  have  been 


on  such  survey — Gllman  v.  Brown,  115  Wis. 
1.  An  identification  of  a  section  corner  as 
a  starting  point  by  a  county  surveyor  on 
examination  of  the  ground  and  on  sworn 
evidence  will  not  be  rejected  in  the  absence 
of  any  showing  of  mistake  or  error — Shrakfe 
V.  Laflin  (Neb.)  92  N.  W.  184.  Evidence  held 
to  show  that  a  corner  was  lost  and  the  field 
notes  inaccurate,  authorizing  commissioners 
to  locate  the  lines  from  original  government 
corners  found  elsewhere — Trlnwith  v.  Smith 
(Or.)  70  Pac.  816.  To  establish  that  land 
was  w^ithin  a  certain  survey — Sherman  v. 
King  (Ark.)  72  S.  W.  571.  To  show  that  a 
re-survey  corresponded  with  an  original  sur- 
vey— McGarry  v.  Runkel  (Wis.)  94  N.  W. 
662. 

85.  Watkins  v.  King  (C.  C.  A.)  118  Fed. 
524;  Patterson  v.  T.  J.  Moss  Tie  Co.,  24  Ky. 
Law  Rep.  1571,  71  S.  W.  930.  True  location 
of  a  block  of  land  Is  for  the  iury  w^here 
plaintiffs  evidence  shows  that  it  could  be 
well  located  west  of  where  it  met  calls  for 
an  old  survey,  and  defendant  shows  that 
plaintiff's  block  could  be  well  located  by 
marks  on  the  ground  east  of  the  present 
location — Lehigh  Val.  Coal  Co.  v.  Beaver 
Lumber  Co.,  203  Pa.  544.  Where  a  street  ia 
a  monument,  its  existence  at  the  date  of  the 
deed  is  a  question  for  the  Jury — Hammond 
V.  George   fGa.)   43  S.  E.  53. 

86.  Clark  v.  Thornburg  (Neb.)  92  N.  W. 
1056. 

S7.  An  instruction  that  the  jury  shall  de- 
cide from  the  evidence  whether  meandered 
lines  located  by  a  government  surveyor  can- 
be  identified,  where  such  lines  indicate  the 
margin  of  a  certain  channel,  does  not  substi- 
tute the  lines  for  the  center  of  the  channel 
as  a  boundary  where  the  jury  is  expressly 
told  that  if  such  channel  can  be  located  its 
center  must  constitute  such  boundary — 
Shrake  v.  Laflin  (Neb.)  92  N.  W.  184;  Men- 
sen  V.  Same.  Id. 

88.  An  instruction  that  if  defendant  pur- 
chased land  in  reliance  on  a  fence  as  a  true 
line,  then  plaintiff  was  estopped  from  claim- 
ing that  the  boundary  was  elsewhere,  should 
not  be  given,  where  defendant's  answer  does 
not  allege  that  he  purchased  in  reliance  on 
the  location  of  the  boundary  as  evidenced 
by  a  fence  erected  by  a  former  owner  on  the 
line  as  then  surveyed — First  Nat.  Bank  v. 
McDonald    (Or.)    70  Pac.  901. 

S9.     Miller  v.  Cure,  205  Pa.  168. 

90.  Dillingham  v.  Smith  (Tex.  Civ.  App.) 
70  S.  W.  791. 


§  6 


BOUNTIES— BREACH  OF  PROMISE. 


35S 


Incidental  relief  and  costs. — A  decree  in  proceedings  to  determine  division  lines 
from  a  shore  to  a  harbor  line  should  not  be  accompanied  by  an  injunction  unless 
demanded  by  the  circumstances.^^  Wliere  the  actual  distance  between  remote  cor- 
ners varies  from  the  length  actually  called  for,  the  variance  must  be  proportionately 
distributed  between  the  several  subdivisions."*  Shortage  in  land  platted  will  be 
distributed  between  the  lot  owners  where  there  has  been  no  adverse  possession,  each 
block  being  regarded  as  distinct  if  possible.®^  Costs  in  such  proceedings  should  not 
be  taxed  to  persons  whose  lines  are  not  determined.®^ 

Vacation. — Statutory  proceedings  to  locate  a  boundary  line  cannot  be  set  aside 
by  the  person  bringing  them  because  of  failure  to  notify  the  parties  or  because  of 
the  omission  of  immaterial  evidence  by  the  surveyor  or  because  of  errors,  and  an 
independent  action  setting  aside  the  report  of  a  surveyor  cannot  be  allowed  because 
of  failure  of  the  party  by  reason  of  a  mistake  to  perfect  his  appeal.®'' 

§  6.  Offenses  against  land  marhs. — A  wall  used  merely  as  a  fence  and  which 
has  not  been  mentioned  as  a  monument  in  any  deed  is  not  within  the  meaning  of 
statute  punishing  the  destruction  of  monuments.®* 

BOUNTIES. 

§  1.  Bounties  to  soldiers. — The  soldier's  additional  homestead  allowed  by 
Rev.  St.  §  2306,  is  in  the  nature  of  a  bounty.^ 

§  3.     Bounties  on  naval  captures. — What  is  prize  of  war  is  elsewhere  treated. 
Whe-re  the  flag  ship  was  within  signal  distance  at  the  beginning  and  again  before 
the  end  of  the  engagement,  she  is  entitled  to  share.'     What  persons  attached  to 
or  on  board  a  vessel  are  entitled  to  share  is  treated  in  the  notes.*     One  who  was 
both  fleet  captain  and  commander  of  a  vessel  may  share  as  both.' 

BREACH  OF  PROMISE   OF   MARRIAGE. 

§  1.  The  promise. — A  written  agreement  for  marriage,  signed  and  accepted 
by  both,  is  binding  on  the  woman  though  she  does  not  agree,  in  words,  to  marry,^ 
Disease  rendering  consummation  impossible  is  the  only  excuse  available  for  failure 


91.  It  is  not  sufficiently  definite  to  de- 
scribe land  as  "commencing  at  the  closing 
corner  established  by  United  States  surveyor 
Alt,  in  May,  1900,"  if  the  field  notes  of  the 
survey  are  on  file  in  the  office  of  the  com- 
mission of  public  lands  in  the  state,  but  the 
decree  would  be  sufficient  if  the  survey  re- 
ferred to  were  the  one  made  pursuant  to 
Act  Congress,  Aug.  18,  1894,  and  was  spe- 
cifically referred  to — Egan  v.  Light  (Neb.) 
93  N.  W.  859. 

92.  "Where  a  verdict  finds  three  points  on 
a  boundary  not  in  a  line,  a  direction  of  the 
court  to  a  surveyor  to  locate  a  certain  point 
and  run  a  straight  line  and  an  entry  of 
Judgment  in  accordance  w^ith  his  report  is 
not  authorized  as  based  on  the  verdict — 
Dillingham  v.  Smith  (Tex.  Civ.  App.)  70  S. 
W.  791. 

93.  Proceedings  under  Gen.  Laws,  c.  266, 
In  which  the  court  did  not  decide  injunction 
to  be  proper,  and  no  fraud  or  intent  to  disre- 
gard the  lines  established  was  shown — Ta- 
ber  v.  Hall  (R.  I.)   52  Atl.  686. 

94.  Entire  line  was  in  the  same  survey, 
and  it  was  not  to  be  presumed  that  the 
variance  was   caused   by  a  defective   survey 

Cur.  Law — 23. 


of  any  part — Brooks  v.  Stanley  (Neb.)  92  N. 
W.  1013. 

95.  Anderson  v.  Wlrth  (Mich.)  9  Detroit 
Leg.  N.  254,  91  N.  W.  157. 

9G.  Error  to  tax  costs  to  persons  made 
parties  but  whose  lines  have  been  previously 
determined — Taber  v.  Hall  (R.  L)  52  Atl 
686. 

97.  Close  V.  Huntington  (Kan.)  71  Pac. 
812. 

98.  R.  S.  L.  0.  208,  §  78— Ropes  v.  Flint, 
182  Mass.  473. 

1.     United  States  v.  Lair,  118  Fed.  98. 
3.     "War." 

3.  Sampson  v.  U.  S.,  36  Ct.  CI.  194. 

4.  Men  on  board  though  their  accounts 
were  kept  on  other  vessels;  men  temporarily 
detailed  to  other  vessels  are  entitled  to 
share;  men  transferred  to  shore  hospital 
before  the  engagement  are  not,  nor  men  sub- 
sequently attached — In  re  Engagement  off 
Santiago  Bay,  36  Ct.  CI.  200,  206.  The  rules 
formulated  by  the  auditor  Nov.  22,  1898,  gov- 
ern— In  re  Engagement  off  Santiago  Bay, 
36  Ct.  CI.   200. 

6.     Chadwick  v.  U.  S.,  36  Ct.  CI.  471. 

1.     Sponable  v.  Owens,  92  Mo.  App.   174. 


354 


BRIBERr. 


g  2 


to  fulfill  a  promise  to  marry.^  A  promise  to  marry  to  be  fulfilled  on  the  happen- 
ing of  a  future  event  must  be  performed  within  a  reasonable  time  with  regard  to 
the  character  of  the  contingenc}-,  and  the  lapse  of  time  after  the  event  together 
with  conduct  indicating  intent  not  to  marry  amount  to  a  refusal.' 

§  2.  The  acUo7i.* — Attachment  will  not  lie  in  aid  of  a  suit  for  breach  of 
marriage  promise.^  Eecovery  cannot  be  had  for  breach  of  a  marriage  promise,  set- 
ting no  time  for  consummation,  without  an  offer  to  perform  or  a  request  of  the 
other  party  to  perform,®  but  lapse  of  time  after  the  time  set  to  marry  and  con- 
duct indicating  an  intention  not  to  marry  may  render  a  demand  for  performance 
unnecessary.'  Where  defendant  could  not  marry  on  a  day  set  because  of  sicloiess, 
and,  before  he  was  able,  plaintiff  brought  an  action  for  breach  which  she  discon- 
tinued, an  offer  to  marry  or  a  request  of  defendant  to  marry  was  necessary  after 
discontinuance  before  bringing  another  action.^  Seduction  must  be  specially  plead- 
ed to  be  considered  in  aggravation  of  damages,  and  likewise  the  bad  character  of 
plaintiff  to  be  considered  in  mitigation  of  damages.*  Where  there  is  proof  that 
defendant  owned  property  of  value,  his  financial  condition  may  be  considered  in 
determining  what  position  in  life  plaintiff  would  have  attained  by  marriage  though 
the  exact  value  of  his  property  does  not  appear.^"*  The  pecuniary  abifity  of  de- 
fendant may  be  sho-\vn  to  show  substantial  injury  resulting  to  plaintiff,  and  this 
may  be  accomplished  by  proof  of  his  reputed  financial  ability.^^  Evidence  of  own- 
ership of  specific  property  by  defendant  is  admissible  where  plaintiff  alleges  loss 
of  valuable  dower  rights  in  his  property .^^  Evidence  of  statements  by  plaintiff  that 
she  had  been  unduly  intimate  with  another  than  defendant  may  be  rebutted  by  her 
denial  of  the  fact  or  the  statement.^'  An  instruction  excluding  consideration  of 
"the  result  of  any  sexual  relations  between  the  parties"  as  an  element  of  damages 
is  not  objectionable  as  excluding  birth  of  an  illegitimate  child,  though  it  excludes 
consideration  of  "sexual  intercourse."^*  Where  part  of  correspondence  is  lost  and 
oral  testimony  thereof  is  given,  the  construction  of  a  marriage  promise  contained 
therein  is  not  for  the  court." 

BRIBERY. 

Nature  and  elements  of  offense. — Accepting  a  bribe  and  agreeing  to  accept 
the  same  are  distinct  offenses.^  Offer  of  money  for  release  by  one  illegally  arrest- 
ed is  not  an  offense.^  The  solicitation  of  a  bribe  is  an  offense  though  the  person 
solicited  refuses  to  give  it.' 

Indictment.* — Where  the  indictment  alleges  that  money  was  offered  it  need 
not  be  alleged  to  be  of  value."     An  averment  of  agreement  by  an  officer  to  receive 


2.  Smith  V.  Compton,   67  N.  J.  Law,  548. 

3.  Birum  v.  Johnson,   87  Minn.  362. 

4.  Sufficiency  of  instruction  giving  con- 
sideration of  plaintiff's  financial  circum- 
stances to  the  jury  in  estimating  plaintiff's 
damages — Herrlman  v.  Layman  (Iowa)  92  N. 
W.  710. 

5.  The  demand  does  not  come  within  Gen. 
Laws.  c.  252.  §§  14,  17 — Mainz  v.  Lederer  (R. 
I.)  51  Atl.  1044. 

6.  Clark  v.  Corey  (R.  I.)   52  Atl.  811. 

7.  Birum  v.  Johnson,  87  Minn.  362. 

8.  Smith  V.  Compton,  67  N.  J.  Law,  548. 

9.  As  to  mitigating  circumstances  see 
Code.  §  3593 — Herriman  v.  Layman  (Iowa)  92 
N.  W.  710. 

10.  Herriman  v.  Layman  (Iowa)  92  N.  W. 
710. 

11.  Birum  V.  Johnson,  87  Minn.   362. 


Smith  V.  Compton,  67  N.  J.  Law,  548. 
Herriman  v.  Layman   (Towa)   92  N.  W. 

Herriman  v.  Layman   (Iowa)   92  N.  W. 

Barber  v.  Geer  (Tex.  Civ.  App.)   71  S. 


12. 
13. 

710. 
14. 

710. 
15. 

W.  792. 

1.  And,  accordingly,  Pol.  Code,  art.  21,  S 
1879,  was  not  repealed  by  Pen.  Code.  §  68 — 
People  V.  Seeley,  137  Cal.  13,  69  Pac.  693. 

2.  Moore  v.  State  (Tex.  Cr.  App.)  69  S.  W. 
521;  Ex  parte  Richards  (Tex.  Cr.  App.)  72  S. 
W.  838. 

3.  People  V.  Hammond  (Mich.)  93  N.  W. 
1084. 

4.  Indictment  of  legislator  held  not  suffi- 
cient In  respect  to  allegation  that  official  ac- 
tion was  to  be  influenced — State  v.  Meysen- 
burg   (Mo.)   71  S.  W.  229.     Indictment  Of  po- 


§  2 


BRIDGES. 


355 


a  bribe  on  agreement  that  his  action  on  a  matter  pending  before  him  should  be 
thereby  influenced  sufficiently  alleges  corrupt  intent.®  An  indictment  reciting  that 
defendant  knew  that  he  would  be  called  on  to  vote  on  a  certain  measure  is  not  ar- 
gumentative.'^ 

Evidence  and  instructions.^ — That  defendant  executed  the  agreement  under 
which  the  bribe  was  received  is  admissible.^  Evidence  of  conversations  with  one 
who  acted  as  go-between  are  admissible,  but  not  bribes  received  by  co-officers  of  de- 
fendant," nor  the  fact  that  accused  made  purchases.^^  It  may  be  shown  whether 
the  thing  given  was  regarded  as  valuable.^^ 

BRIDGES. 

§  1.     Ijocatlon    and     Provision    for    Public  I  juries;   Proximate  Cause;   Contributory  Neg- 
Bridges.  lig-ence;  Remedies. 

§  2.     Construction    And     Maintenance. — In-  I       §  3.     Penalties  for  Injnrins  Bridge. 

The  construction  and  maintenance  of  bridges  as  part  of  the  highway  and  by 
the  usual  highway  authorities/  the  rights  and  liabilities  of  toll  bridge  companies,' 
and  the  duties  and  liabilities  of  railroad  companies  as  to  construction  and  main- 
tenance of  bridges  over  their  tracks,^  will  be  treated  more  fully  elsewhere. 

§  1.  Location  and  provision  for  public  bridges.* — The  sanitary  district  of 
Chicago,  in  diverting  the  Chicago  Eiver  into  artificial  channels  for  drainage,  was 
empowered  to  replace  bridges  rendered  useless  by  the  widening  of  the  river."  A 
city  may  swing  a  bridge  over  the  land  of  a  private  owner  and,  in  consideration  for 
the  right,  construct  a  vault  under  the  street  to  be  used  free  of  rent  by  the  owner 
during  the  existence  of  the  bridge.' 

§  2.  Construction  and  maintenance.  A.  In  general.'' — Villages  are  charged 
with  maintenance  of  bridges  within  their  limits  and  are  not  liable  to  taxation  to 
aid  towns  in  the  building  of  bridges  under  a  law  exempting  them  from  liability 


lice  officer  for  accepting  bribe  to  permit 
operation  of  confidence  men  held  good — 
State  V.  Gardiner  (Minn.)  92  N.  "W.  529. 
Omission  of  the  word  "English"  before  the 
word  "sparrow"  in  describing  the  bounties 
with  respect  to  which  the  bribery  was  al- 
leged is  not  fatal — People  v.  Gor.=line  (Mich.) 
94  N.  W.  16.  Indictment  for  offering  bribe 
to  sheriff  to  permit  escape  of  prisoner  held 
sufficient — Moore  v.  State  (Tex.  Cr.  App.)  69 
S.  W.  521. 

People   V.   Seeley,    137    Cal.    13,    69    Pac. 


5. 

693. 

6. 
693. 

7. 

1084 


People  V.   Seeley,    137   Cal.   13,   69   Pac. 


People  V.  Hammond  (Mich.)  93  N.  W. 
Variance:  Between  averment  of 
money  and  proof  of  check  is  fatal  but  in 
respect  to  amount  ($9,000  alleged,  $8,966.28 
proved)  Is  not — State  v.  Meysenburg  (Mo.) 
71  S.  W.  229. 

S.  Instructions:  Instruction  as  to  intent 
held  to  be  covered  by  general  charge — Peo- 
ple V.  Gorsline  (Mich.)  94  N.  W.  16.  Instruc- 
tion held  to  misstate  an  admission  by  de- 
fendant— People  V.  Gorsline  (Mich.)  94  N. 
W.  16. 

9.  State  V.  Gardiner  (Minn.)  92  N.  W.  529. 
And  see  State  v.  Meysenburg  (Mo.)  71  S.  W. 
229. 

10.  State  V.  Meysenburg  (Mo.)  71  S.  W. 
229. 

11.  Evidence  that  one  who  was  alleged  to 
have   bribed   defendant   to   allow   a   house   of 


prostitution  to  run  without  Interference  aft- 
erwards bought  furniture  Is  inadmissible — 
People  V.  Bissert,  172  N.  Y.  «43. 

12.  Where  defendant  transferred  certain 
stock  to  the  alleged  bribe  giver,  the  trans- 
fer being  claimed  by  the  state  to  be  a  mere 
blind,  it  was  held  that  proof  of  the  value  of 
the  stock  was  competent;  that  declarations 
of  the  alleged  bribe-giver  that  he  regarded 
it  as  worthless  was  admissible;  that  the 
amount  received  by  another  shareholder  was 
not  admissible — State  v.  Meysenburg  (Mo.) 
71  S.  W.  229. 

1.  Highways  and  Streets. 

2.  Toll  Roads  and  Bridges. 

3.  Railroads. 

4.  Constitutionality  of  c.  78,  Comp.  St. 
Neb.,  relating  to  the  building  of  bridges  over 
streams  dividing  counties — Cass  County  v. 
Sarpy  County    (Neb.)    92  N.  W.   635. 

5.  Under  Kurd's  Rev.  St.  111.  1899,  p.  327, 
providing  for  organization  of  the  district  to 
make  an  outlet  for  drainage  and  sewage 
through  the  Desplaines  and  Illinois  rivers — 
Lussem  V.   Sanitary  Dist.,   192  111.  404. 

6.  Under  Rev.  St.  111.  1874,  c.  24,  par.  62, 
Starr  &  C.  Ann.  St.  111.  c.  24,  par.  284— 
Chicago  V.  Norton  Milling  Co.,  196  111.  580. 

7.  Constitutionality  of  Pub.  Laws  Pa. 
1899,  page  231,  providing  for  the  purchase, 
maintenance,  use  and  condemnation  by  the 
city  of  bridges  over  streams  separating  or 
dividing  parts  or  districts  of  counties — Steg- 
maier  v.  Jones,  203  Pa.  47. 


356 


BRIDGES. 


§  2A 


where  they  maintain  tlieir  own  bridges.*  \^^ere  a  law,  charging  the  maintenance 
of  portions  of  a  bridge  between  two  towns,  upon  one  of  the  towns,  is  repealed  by  a 
law  saving  prior  acts  under  it,  the  liability  for  maintenance  is  not  changed.'  In 
building  a  public  bridge,  a  county  should  provide  for  whatever  business  may  be 
fairly  anticipated  for  the  accommodation  of  the  public  in  the  vicinity.^"  Au- 
thority from  the  supervisors  to  construct  a  bridge  continues  for  eleven  years." 
That  the  supervisors  have  not  authorized  construction  of  a  bridge  cannot  be  urged 
by  a  taxpayer  where  it  was  ordered  by  the  proper  city  authorities.^*  The  county 
and  town  boards  cannot  act  jointly  in  making  a  contract  for  construction  of  a 
bridge.^'  A  law  authorizing  taxation  by  counties  to  aid  towns  in  building  bridges, 
which  does  not  apply  to  property  in  cities  or  incorporated  villages  maintaining  their 
own  bridges,  is  not  unconstitutional  as  class  legislation  rendering  taxation  not 
uniform.^*  That  sufficient  means  are  not  available  to  build  a  needed  bridge  will  not 
prevent  a  recovery  when  such  funds  are  available  for  materials  furnished.^^  Un- 
der the  law  authorizing  the  fiscal  court  to  appoint  a  bridge  commissioner  to  super- 
intend the  construction  and  repair,  one  thus  appointed  holds  his  office  subject  to 
the  right  of  the  court  to  revoke  the  bond,  remove  him  from  office,  or  abolish  the 
office.^®  Where  county  commissioners,  representing  that  they  had  the  right  under 
the  law,  purchased  bridges  and  gave  orders  for  payment,  the  holders  of  such  orders 
may  bring  an  action  for  leave  to  remove  the  bridges  unless  paid  for.^^  A  bridge  tax 
levied  on  all  property  in  a  ward  is  a  local  assessment,  though  it  cannot  be  imposed 
without  a  vote  of  the  tax  payers  of  the  ward.^*  One  who  leases  oyster  ground  in 
a  navigable  river  from  a  town  cannot  recover  damages  for  eviction  by  reason  of 
construction  of  a  bridge  by  the  town  across  the  river  over  the  oyster  ground.^' 

The  liability  of  a  county  to  contribute  for  construction  or  maintenance  of  a 
bridge  on  a  county  line  highway  is  purely  statutory,-*^  and  a  county  need  not  con- 
tribute to  the  repair  of  a  bridge  over  a  stream  on  the  line  where  the  other  county 
repaired  the  bridge  in  violation  of  a  law  regulating  repairs.'^^  One  county,  by  suit, 
may  compel  an  adjoining  county  to  contribute  for  repair  of  a  bridge  across  a  stream 
on  the  county  line  without  a  previous  contract,**  but  not  unless  such  county  has 
refused  to  enter  a  contract  for  that  purpose  where  the  plaintifE  county  has  already 
made  the  repairs.*^  That  a  county  allowed  the  construction  of  a  bridge  on  its 
line  without  objection,  and  made  approaches  thereto,  and  that  the  bridge  was  used 
by  its  citizens,  will  not  estop  it  nor  its  taxpayers  from  disputing  a  claim  presented 
by  the  other  county  for  contribution.**  Allowance  by  a  county  board  of  a  claim 
by  another  county  for  contribution  to  a  line  bridge  will  not  estop  the  first  county  on 


8.  Under  various  sections  of  the  statutes 
regarding  maintenance  of  bridges  by  vil- 
lages and  towns — Battles  v.  Doll,  113  Wis. 
357. 

9.  Under  Laws  N.  Y.  1828.  c.  21,  §  5,  re- 
pealing act  of  ISIS.  c.  91 — In  re  "Webster,  77 
App.  Div.  (N.  T.)   560. 

10.  Seyfer  v.  Otoe  County  (Neb.)  92  N.  W. 
756. 

11.  Kundinger  v.  Saginaw  (Mich.)  9  De- 
troit Leg.  N.  650.  93  N.  W.   9n. 

13.  Kundinger  v.  Saginaw  (Mich.)  9  De- 
troit Leg.  N.   6~50,  93  N.  W.  914. 

13.  Under  Rev.  St.  Wis.  1898,  §  1319.  pro- 
viding for  payment  of  half  the  cost  of 
bridges  by  the  county  on  petition  from  the 
town — Johnson  v.  Buffalo  County,  111  Wis. 
265. 

14.  Rev.  St.  Wis.  1898,  §  1319,  construed 
In  connection  with  Const.  Wis.  art.  8,  §  1 — 
Battles  v.   Doll,   113  Wis.    357. 

15.  Under  Gen.   St.   Kan.    1901,   c.   110,   art. 


12 — Chicago  L.   &  C.   Co.   v.   Sugar  Loaf  Tp., 
64  Kan.  163,  67  Pac.  630. 

16.  Ky.  St.  §  4320 — Campbell  County  v. 
Trapp,  23  Ky.  Law  Rep.  2356,  67  S.  W.  369. 

17.  Lee  V.  Board  of  Com'rs  of  Monroe 
County   (C.  C.  A.)    114  Fed.   744. 

18.  Griggsry  Const.  Co.  v.  Freeman,  108 
La.  435. 

19.  Hall  V.  Oyster  Bay,  171  N.  T.  646. 

20.  Under  Comp.  St.  Neb.  c.  78,  §§  87-89 — 
Saline  County  v.  Gage  County  (Neb.)  92  N. 
W.  1050. 

21.  Cass  County  v.  Sarpy  County  (Neb.) 
92  N.  W.   635. 

22.  Under  Comp.  St.  Neb.  c.  78,  5  89, 
amended  April  1st.  1889 — Cass  County  v. 
Sarpy  County,  63  Neb.  813. 

23.  Under  Comp.  St.  Neb.  §  88 — Saline 
County  v.  Gage  County  (Neb.)   92  N.  W.  1050. 

24.  Saline  County  v.  Gage  County  (Neb.) 
92  N.  W.  1050. 


§  2B  BRIDGES.  357 

appeal  from  the  allowance.^^  The  supervisors  of  one  of  two  adjoining  counties  had 
authority  to  appropriate  money  to  construct  part  of  a  railroad  bridge  so  as  to  make 
a  passage  for  pedestrians  and  teams  without  letting  a  contract  or  taking  a  bond.^^ 

A  city  must  maintain  suitable  approaches  to,  and  guards  upon,  bridges  within 
its  limits.^^  The  county  commissioners  may  repair  a  bridge  over  a  navigable  river 
though  prohibited  by  law  from  building  such  bridges.-^  The  highway  commission- 
ers in  towns  may  employ  a  person  to  superintend  the  repair  of  unsafe  bridges,  and 
it  is  the  duty  of  the  town  board  on  presentation  of  vouchers  for  his  claim  to  allow 
a  reasonable  compensation,  and  in  auditing  such  claim,  the  board  is  not  restricted 
to  proof  submitted  by  the  claimant,  but  may  act  on  their  own  knowledge.  The  ac- 
tion of  the  board  in  rejecting  the  claim  is  not  a  bar  to  subsequent  proceedings  by 
the  claimant  to  compel  audit  and  payment.^' 

B.  Injuries  from  improper  or  defective  construction. — Townships  are  liable 
for  repair  of  bridges,  though  built  at  the  charge  of  the  county  by  the  commission- 
ers and  hence  are  liable  for  injuries  resulting  from  neglect  to  repair,^"  though  a 
town  is  not  liable  at  common  law  for  injuries  resulting  from  a  defective  bridge.^^ 
It  cannot  be  held  liable  for  an  injury  caused  by  the  negligence  of  the  commission- 
ers in  constructing  a  temporary  bridge  on  private  property,  under  a  license  to  re- 
place a  highway  bridge  carried  away  by  a  freshet,^'  nor  for  injuries  resulting  from 
undermining  of  the  foundation  of  a  bridge  by  a  flood  three  years  after  construc- 
tion without  notice  of  such  undermining,  though  the  bridge  was  imperfectly  con- 
structed.^* A  municipality  cannot  escape  liability  for  injuries  from  defects  in  a 
bridge  resulting  from  natural  decay  because  its  officers  did  not  have  actual  notice 
of  the  particular  defect  which  caused  the  accident,^*  but  notice  to  officers  of  a  city 
that  a  certain  bridge  is  defective  and  the  failure  of  the  city  to  repair  will  not  make 
it  liable  for  injury  where  the  officers  were  not  charged  with  care  of  the  bridge.*^ 
It  cannot  be  urged  by  a  township  that  a  defect  causing  injury  was  due  to  the  original 
construction  of  a  bridge  by  the  county  where  the  bridge  had  stood  for  nearly  60 
years  and  the  defect  was  due  to  the  failure  to  repair  the  natural  decay,  nor  can  the 
township  claim  that  such  decay  was  a  latent  defect,  it  being  negligence  for  the 
toT\Tiship  to  fail  in  precaution  to  discover  the  condition  of  the  bridge.^^  Where 
by  law,  the  town  and  not  the  commissioner  of  highways  is  liable  for  injuries  from 
defective  bridges,  that  the  highway  commissioner  has  no  funds  to  repair  a  bridge 
is  no  defense  to  an  action  against  the  town  for  injuries  resulting  from  its  defects."^ 
A  highway  commissioner  is  not  excused  from  negligence  in  failing  to  place  guard 
rails  or  barriers  along  a  certain  bridge  •  because  there  were  many  similar  bridges 
within  the  town  requiring  his  attention,  nor  because  this  bridge  and  many  others 
had  been  used  for  many  years  without  protection.^'     Maintenance  of  a  bridge 


25.  Saline  County  v.  Gage  County  (Neb.) 
92  N.  W.   1050. 

26.  Under  County  Government  Act  (St. 
Cal.  1891,  p.  295)  §  25,  construed  In  connec- 
tion with  Pol.  Code,  §  2713,  and  County  Gov- 
ernment Act,  §  25,  subd.  35 — Croley  v.  Cali- 
fornia Pac.  R.  Co.,  134  Cal.   557,   66   Pac.   860. 

27.  Grant  v.  Brainerd,  86  Minn.  126. 

28.  Under  Code  Md.  art.  25,  §§  3,  13 — Bern- 
be  V.  Anne  Arundel  County  Com'rs,  94  Md. 
330. 

29.  Under  Laws  1890,  c.  568,  §  10,  as 
amended  by  Laws  1895,  c.  606,  and  Laws 
1899,  c.  84 — People  v.  Town  Board  of  Oyster 
Bay,  114  N.  T.  St.  Rep.  309. 

30.  Under  Act  March  30,  1859  (Pub.  Laws 
Pa.  309),  which  was  extended  to  the  par- 
ticular county  in  question   by  act  March   12, 


1860 — Whitmire  v.   Muncy  Creek  Tp.,   17   Pa. 
Super.  Ct.  399. 

31.  Mobus  V.  Waitsfield   (Vt.)    53   Atl.   775. 

32.  Under  Gen.  Laws  N.  Y.  c.  19,  §  16, 
fixing  the  liability  of  towns  for  damages 
from  defects  in  highways  or  bridges,  a  tem- 
porary bridge  is  unauthorized  by  law — Ehle 
V.  Minden,  70  App.  Div.   (N.  T.)   275. 

33.  Pearl  v.  Benton  Tp.  (Mich.)  9  Detroit 
Leg.  N.  317,  91  N.  W.  209. 

34.  Green  v.  Nebagamain,   113  Wis.   508. 

35.  San  Antonio  v.  Ball  (Tex.  Civ.  App.) 
66  S.  W.  713. 

36.  "Whitmire  V.  Muncy  Creek  Tp.,  17  Pa. 
Super.  Ct.  399. 

37.  Laws  N.  Y.  1881,  c.  700 — Lee  v.  Berne 
79  App.  Div.   (N.  Y.)   214. 

38.  Pelkey  v.  Saranac,  67  App.  Div.  (N. 
Y.)   337. 


358  BRIDGES.  §  2B 

known  to  be  too  weak  to  support  a  load  specified  by  law  is  prima  facie  negligence 
on  the  part  of  the  highway  commissioners.^^  That  a  traction  engine  together  with 
a  water  tank  weighed  more  than  four  tons  will  not  prevent  a  recovery  for  damages 
resulting  from  the  breaking  of  a  bridge,  where  only  the  front  wheels  of  the  engine, 
which  weighed  less  than  four  tons,  were  on  the  bridge  at  the  time  of  collapse." 

A  railroad  company  is  not  liable  for  injuries  from  defects  in  a  bridge  which  it 
constructed  across  its  tracks  under  a  specific  agreement  as  to  the  design  with  the 
borough  council  and  which  was  accepted  by  such  council,''^  but  it  cannot  escape 
liability  for  failure  to  guard  the  approach  to  a  bridge  in  a  street  on  its  right  of 
way  and  leading  to  its  crossing  by  reason  of  a  contract  with  the  city  empowering 
the  company  to  build  a  bridge,  but  rendering  the  city  liable  for  its  repair,  where  the 
bridge  together  with  its  approaches  constitutes  a  part  of  the  road  way  of  a  street 
as  well  PS  of  the  right  of  way.  Both  the  city  and  railroad  company  are  liable  for 
injuries  to  travelers.*'^  It  is  also  liable  for  injuries  from  defects  in  a  bridge  over 
its  tracks  by  reason  of  the  failure  of  the  town  to  notify  the  company  of  such  de- 
fects as  required  by  law.*^  A  toll  bridge  company  has  the  duty  of  exercising  not 
only  ordinary  care  in  making  a  safe  passage  for  travelers,  but  a  degree  of  care  nearly 
akin  to  that  required  of  a  carrier  of  passengers.**  In  order  to  recover  for  injuries 
received  on  a  town  bridge,  plaintiff  must  be  a  traveler  at  the  time  and  the  injury 
must  result  to  his  person  or  property  as  a  traveler.*"  One  who  went  to  the  as- 
sistance of  her  husband  and  son,  who  with  their  vehicle  had  broken  through  a  pub- 
lic bridge,  and  was  kicked  by  the  horses  as  they  floundered,  and  was  injiired  by  fall- 
ing fragments  of  the  bridge,  cannot  be  held  as  a  matter  of  law  not  to  be  a  traveler 
on  the  bridge  at  the  time  of  the  injury.*® 

Proximate  cause  of  injury. — A  town  is  not  liable  for  injuries  occurring  on  a 
defective  bridge  unless  the  insufficiency  of  the  bridge  is  the  proximate  cause.*" 
Where  both  a  loose  plank  over  a  hole  on  a  bridge  and  the  absence  of  a  guard  rail 
apparently  contributed  to  an  injury,  it  is  immaterial  which  was  the  dominating 
cause.**  Where  travelers  are  injured  at  night  by  the  sudden  fright  and  shying 
of  their  horse,  whereby  their  vehicle  is  thrown  over  a  high  approach  to  a  bridge, 
the  want  of  a  guard  rail  is  the  proximate  cause  of  the  injury.*®  A  city  is  liable 
for  injuries  to  persons  leaving  a  draw  bridge  where  the  bridge  tenders  negligence  in 
ascertaining  their  safety  was  the  proximate  cause,  though  the  act  of  a  third  person 
in  his  employ  co-operated  to  produce  the  injury.^"  Whc  e  a  toll  bridge  company 
was  negligent  in  failing  to  Hght  their  bridge,  whereby  a  traveler  was  injured, 
that  the  negligence  of  another  traveler  concurred  in  the  accident,  will  not  prevenf 
recovery  from  the  company."^ 

Contributory  negligence. — One  was  not  guilty  of  contributory  negligence  as  a 
matter  of  law  by  passing  through  an  unlighted  bridge  with  knowledge  of  its  condi- 
tion.'*'*    One  with  knowledge  of  a  hole  in  a  bridge  is  not  excused  from  vigilance  in 

30.     Under  Gen.  Laws  N.  T.  c.  19.  §  154,  fix-  |      44.     Conowlngo  Bridge   Co.   v.  Hedrick,   95 
ing  the  weight  of  a  vehicle  and  load  at  four    "'^1.  669 


tons — Helb  v.  Big  Flats.  66  App.  Div.  (N.  Y.) 
88. 

40.  Under  Highway  Law  N.  Y.  1890,  c. 
568,  §  154 — Vandewater  v.  Wappinger,  69 
App.  Div.   (N.  Y.)  325. 

41.  Smith  V.  Pennsylvania  R.  Co.,  201  Pa. 
131. 

43.  Sayles'  Annual  Civ.  St.  Tex.  1897,  arts. 
4426,  4438 — Gulf,  C.  &  S.  F.  R.  Co.  v,  Sandifer 
(Tex.  Civ.  App.)    69  S.  W.   461. 

43.  The  liability  of  the  company  is  abso- 
lute— Martin  v.    Sherwood,   74   Conn.   475. 


45.  Mobus  V.  Waitsfield   (Vt.)    53  Atl.   775. 

46.  Mobus   V.   "Waitsfield    (Vt.)    53  Atl.   775. 

47.  Mobus  V.   Waitsfield   (Vt.)    53  Atl.   775. 

48.  Strader  v.  Monroe,  202  Pa.  626. 

40.  Gulf,  C.  &  S.  F.  R.  Co.  V.  Sandifer 
(Tex.  Civ.  App.)    69  S.  "W.  461. 

50.  This  though  the  city  is  not  liable  for 
acts  of  such  third  person — Chicago  v.  O'Mal- 
ley,  196  111.  197. 

51.  Conowlngo  Bridge  Co.  v.  Hedrick,  95 
Md.   669. 

52.  Conowlngo  Bridge  Co.  v.  Hedrick.  96 
Md.   669. 


§  2B 


BRIDGES. 


359 


crossing  though  he  had  previously  seen  that  the  defect  had  been  repaired."'  A 
boy  between  six  and  seven  years  old,  rightfully  on  a  bridge  in  a  city  to  which  he  was 
a  stranger  was  not  contributorily  negligent  in  running  from  a  man  in  the  employ 
of  the  bridge  tender,  by  reason  of  which  he  fell  off  the  bridge  and  was  injured.^* 
A  traveler  knowing  the  defective  condition  of  a  bridge  is  contributorily  negligent  in 
forcing  his  way  through  the  gates  and  attempting  to  cross  whereby  injury  results,^" 
For  a  driver  of  a  milk  wagon  to  sit  on  one  of  the  cans  is  not  negligence  per  se  in 
crossing  a  defective  bridge  though  he  must  use  greater  care.^^  One  crossing  a 
bridge  with  a  vehicle  and  load  in  excess  of  the  statutory  weight  thereby  weakening 
it  so  that  he  sustained  an  injury  in  crossing  the  next  day  from  the  breaking  of  the 
bridge  cannot  recover.^^  In  an  action  against  a  township  for  damages  to  a  thresh- 
ing machine  by  the  breaking  of  a  defective  bridge,  plaintiff  was  not  negligent  in 
crossing  without  examining  the  .condition  of  the  bridge,  where  it  appears  that  his 
machine  was  below  the  statutory  weight  and  of  the  sort  in  ordinary  use  in  the  vicini- 
ty.**^  A  woman  riding  a  bicycle  on  a  township  bridge  in  broad  daylight  with  no 
obstruction  ahead,  and  having  the  full  width  of  the  bridge,  cannot  recover  for 
injuries  resulting  from  her  failure  to  properly  direct  her  wheel  whereby  she  was 
thrown  into  the  stream  and  injured  though  there  was  no  guard  rail.°* 

Remedics.^^ — The  thirty  days'  limitation  applies  to  an  action  for  injuries  from 
a  defective  bridge  though  plaintiff  alleges  that  he  was  mentally  incompetent  until 
the  limitation  expired.®^  The  town  in  which  a  bridge  over  a  railroad  is  located  is 
not  a  necessary  party  to  an  action  against  a  railroad  company  for  injuries  from  de- 
fects in  a  bridge.®^  A  notice  by  one  injured  from  defects  in  a  culvert  or  bridge  to 
the  town  is  a  condition  precedent  to  the  maintenance  of  an  action  and  must  state 
that  he  will  demand  satisfaction.^^  After  a  finding  by  the  jury  in  an  action  for  in- 
juries from  a  defective  highway  by  special  verdict  that  the  highway  was  not  de- 
fective, an  answer  in  reply  to  another  question  that  the  town  officers  should  have 
known  of  the  existence  of  the  defect  and  repaired  it  before  any  injury  occurred  did 
not  render  the  verdict  inconsistent.®* 

Pleading  and  evidence.^^ — A  complaint  for  injuries  by  reason  of  defects  in  a 
bridge  over  a  railroad  maintained  by  the  company  need  not  allege  that  it  was  the 
duty  of  the  company  to  repair  the  bridge  or  that  it  built  or  owned  the  bridge.*"  A 
complaint  against  a  county  for  injury  to  live  stock  from  a  defective  bridge  must 
allege  that  it  was  a  public  bridge  and  that  it  was  erected  after  passage  of  the  act 
fixing  the  liability  for  such  injuries."  The  burden  is  on  one  injured  to  show  no 
contributory  negligence."®     An  allegation  in  an  action  for  injuries  from  a  defective 


53.  Smith  V.  Jackson  Tp.,  20  Pa.  Super. 
Ct.  337. 

54.  Chicago  V.  O'Malley.  196  111.  197. 

55.  Kane  v.  Yonkers,  169  N.  T.   392. 

56.  Smith  V.  Jackson  Tp.,  20  Pa.  Super. 
Ct.  337. 

.'>7.  Heib  V.  Big  Flats,  66  App.  Div.  (N. 
Y.)   88. 

5S.  "Whitmire  v.  Muncy  Creek  Tp.,  17  Pa. 
Super.  Ct.  399. 

.59.  Beer  v.  Clarion  Tp.,  17  Pa.  Super.  Ct. 
537. 

60.  Sufficiency  of  verdict  in  action  for  in- 
Jury  resulting  from  a  defective  bridge  as 
consistent  ■with  the  finding  that  the  injury 
was  the  result  of  the  accident  and  not  neg- 
ligence— Miller  v.  Casco   (Wis.)   93  N.  W.   447. 

61.  Under  Comp.  St.  Neb.  c.  7S,  §  117 — 
Swaney  v.  Gage  County   (Neb.)   90  N.  W.  542. 

62.  Martin  v.  Sherwood.  74  Conn.  475. 
C3.     Lawton  v.  "Weathersfield,  74  Vt.  41. 


64.     Miller  V.  Casco   (Wis.)   93  N.  W.  447. 

6!5.  Sufficiency  of  evidence  in  action  for 
personal  Injuries  from  a  defective  bridge — 
Lenz  V.  St.  Paul,  87  Minn.  85.  Evidence  of 
contributory  negligence  by  one  injured  by 
falling  off  a  draw  bridge — Brennan  v.  Al- 
bany &  G.  Bridge  Co.,  170  N.  Y.  588.  Evi- 
dence of  contributory  negligence  of  a  moth- 
er and  daughter  driving  along  an  unpro- 
tected approach  to  a  bridge  in  the  evening — 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Sandlfer  (Tex.  Civ. 
App.)  69  S.  W.  461.  Evidence  of  negligence 
of  a  highway  commissioner  in  failing  to  re- 
pair a  bridge  after  obstruction  by  a  flood — 
Lee  V.  Berne,   79  App.  Div.    (N.  Y.)    214. 

66.  Under  Gen.  St.  §  2673,  requiring  the 
company  to  repair 'and  Pub.  Acts  Conn.  1893, 
c.   244 — Martin  v.   Sherwood,   74   Conn.   475. 

67.  Under  Act  Ga.  Dec.  29,  1888 — Seymore 
v.  Elbert  County   (Ga.)    42  S.  E.   727. 

68.  Mobus  V.  Waitsfleld   (Vt.)    53  Atl.   775. 


3bO 


BROKERS. 


8  J- 


bridge  that  they  resulted  from  the  insuiBciency  of  the  bridge  precludes  any  idea 
of  negligence  on  the  part  of  the  to^\Tl.*'''  The  question  of  the  weight  of  a  loaded 
vehicle,  in  an  action  against  the  town  for  the  breaking  of  a  bridge,  is  one  of  proof 
as  to  the  weight  together  with  the  strain  caused  by  the  attempt  to  move  the  load  on 
the  bridge.'"  In  an  action  against  a  town  for  injuries  from  a  defective  bridge,  tes- 
timony of  witnesses  that  they  had  suffered  accidents  in  driving  over  the  bridge 
may  be  admitted.'^  Where  the  law  requires  that  a  claim  for  personal  injuries  from 
a  defective  bridge  should  state,  in  a  notice  to  the  town,  what  part  of  the  body  was 
injured  and  plaintiff  stated  that  the  back  of  her  head  was  injured,  she  could  prop- 
erly show  that  her  head  was  bloody,  that  there  was  a  bruise  on  the  back  of  her  head 
and  that  after  the  accident  she  suffered  from  headaches.''^ 

Questions  for  jury. — The  failure  of  a  city  to  properly  maintain  barriers  on  an 
embanlcment  on  a  public  highway  leading  to  a  bridge,'^  contributory  negligence  in 
crossing  a  bridge  with  an  engine  and  separator,^*  the  negligence  of  highway  com- 
missioners in  failing  to  place  a  guard  rail  or  barrier  on  a  bridge  of  a  certain  size,^'' 
whether  the  acts  of  a  city  bridge  tender  are  the  proximate  cause  of  an  injur}',^*  and 
the  negligence  of  a  toll  bridge  company  in  failing  to  light  their  bridge  by  reason  of 
wliich  a  traveler  was  injured  in  collision  with  another,''  are  questions  for  the  jury. 
In  an  action  against  a  toll  bridge  company  for  injuries  while  crossing  an  unlighted 
brid'^'e  by  collision  with  a  bicycle  rider,  the  question  of  carelessness  of  the  rider  can- 
not be  submitted  to  the  jury  where  there  was  no  evidence  on  that  point.  Mere 
absence  of  lights  on  the  bridge  cannot  impute  negligence  to  the  company,  that  being 
a  question  for  the  jury.'^  In  an  action  by  an  administrator  against  a  county  for 
injuries  to  his  decedent  while  crossing  a  bridge  with  a  threshing  machine,  the 
questions  of  the  construction  of  the  bridge  and  the  proper  use  by  decedent  are  for 
the  jury.'®  In  an  action  for  injuries  from  a  defective  bridge,  the  question  whether 
it  was  a  bridge  need  not  be  submitted  to  the  jury  where  there  was  no  controversy 
on  that  point  and  the  testimony  showed  that  it  was  a  bridge.^" 

§  3.  Penalties  for  injuries  to  bridges. — The  penalty  for  injuries  to  a  public 
bridge  given  by  the  law  applies  only  to  willful,  not  mere  negligent,  acts.*^ 

BROKERS. 


§  1.     Employment  and  Relation  in  General. 

— Double  Agency. 

§  2.  Mutual  Rishts,  Duties,  and  Liabili- 
ties.  Representation;  Good  Faith  and  Dili- 
gence; Ratification;  Damages;  Accounting; 
Remedies. 

§  3.  Rights  and  Liabilities  as  to  Third 
Persons. 


§  4.  Compensation  and  Lien. — Real  Es- 
tate Brolvers;  Revocation;  Ability  of  Pur- 
chaser to  Perform;  Sufficiency  of  Broker's 
Performance;  Modification  of  Terms  of  Bar- 
gain; Fraud  or  Bad  Faith  on  Broker'^  Part; 
Acting  for  Both  Parties;  Actions:  Pieadi.ng; 
Burden  of  Proof  and  Evidence;  Trial  and  In- 
structions. 


General  principles  of  agency,*  and  agency  in  particular  relations,-  are  treated 
under  particular  topics. 

§  1.     Employment  and  relation  in  general.' — A  person  bu}Tng  claims  for  him- 


69.  Vt.  St.  §  3490,  providing  for  recovery 
of  such  damages  in  an  action  on  the  case — 
Mobus-v.  Waitsfleld   (Vt.)    53  Atl.   775. 

Heib    V.    Big    Flats,    66    App.    Div.    (N. 


70. 


Y.) 


Lynds  v.  Plymouth,  73  Vt.  216. 
Lynds  v.  Plymouth,  73  Vt.  216. 
Grant  v.  Brainerd,  86  Minn.   126. 
Heib    V.    Big    Flats,    66    App.    Div. 


73 

74, 
T.)  88. 

75.  Pelkey   v.   Saranac,    67   App.    Div. 
T.)    337. 

76.  Chicago  v.  O'MaUey,  196  111.  197. 


(N. 
(N. 


77.  Conowlngo  Bridge  Co.  v.  Hedrick,  95 
Md.   6C9. 

78.  Conowlngo  Bridge  Co.  v.  Hedrick.  95 
Md.   669. 

79.  Seyfer  v.  Otoe  County  (Neb.)  92  N.  W. 
756. 

SO.     Lynds  v.  Plymouth,  73  Vt.  216. 

81.  Comp.  Laws  Mich.  1897,  §  4160 — St. 
Ignace  Tp.  Overseer  v.  Pelton  (Mich.)  8  De- 
troit Leg.  N.  842,  87  N.  W.  1029. 

1.  Agency. 

2.  Ff.ctors,  Insurance,  Attor.^eya  and 
Counselors. 

3.  Sufficiency   of   evidence   of   employment 


§    1  EMPLOYMENT  AND  RELATION.  35^ 

self  is  not  a  broker.*  One  receiving  certain  goods  from  another  to  effect  their  sale 
on  commission  is  a  mere  broker,  and  the  relation  of  debtor  and  creditor  does  not 
exist.^  The  listing  of  real  estate  of  a  wife  b}'  her  husband  and  her  acquiescence 
in  such  act  and  their  agreement  to  pa_y  commissions  to  the  broker,  together  with  part 
payment  by  the  husband  and  a  promise  of  the  balanoe,  sufficiently  shows  the  broker's 
employment  by  the  husband  for  his  wife  and  her  ratification  of  the  act.^  Wliere 
it  appears  that  the  broker  asked  the  owner  if  he  wanted  to  sell,  and  his  price,  stating 
that  he  had  a  party  who  might  buj-,  and  that  afterward  the  broker  made  offers  for 
the  property,  speaking  of  the  prospective  purchasers  as  his  clients,  he  was  the 
agent  of  the  bu3'er  and  not  the  seller.^  "UHiether  a  hotel  keeper  had  impliedly  em- 
ployed a  cigar  dealer  who  dealt  with  him  to  act  for  him  as  a  broker  in  the  sale  of 
his  lands,  as  shown  by  certain  negotiations  between  the  parties  and  by  the  testi- 
mony of  the  alleged  broker,  is  for  the  jury.^ 

A  contract  for  services  in  selling  lands  is  governed  by  the  statute  of  frauds  in 
the  state  wliere  made.^  A  real  estate  agent  cannot  recover  on  a  quantum  meruit  for 
selling  real  estate  under  oral  employment  in  New  Jersey,  since  the  authority  must 
be  in  writing,^**  and  a  real  estate  broker  of  a  city  of  the  first  or  second  class  must 
have  written  authority  of *the  owner  before  selling  real  propert}'-,  or  he  can  recover  no 
commission  ;^^  however  this  law  has  been  held  unconstitutional  as  depriving  the 
citizen  of  liberty  and  property  without  due  process  of  law,^^ 

Mere  acquiescence  in  a  broker's  statement  that  he  had  secured  a  loan  for  pro- 
spective purchasers  does  not  show  ratification  of  the  broker's  agency,  no  such  agency 
being  shown  by  the  latter's  statement.^^  Where  a  contract  for  the  sale  of  lands  by 
a  broker  is  made  without  time,  either  party  may  terminate  it  in  good  faith  at  will,^* 
or  after  a  reasonable  time  for  the  completion  of  a  contract  by  a  broker,  the  principal 
may  revoke  the  authority  ;^^  but  where  services  rendered  by  a  broker  in  one  em- 
ployment are  in  part  the  consideration  for  a  second  employment,  the  latter  em- 
ployment is  coupled  with  an  interest  so  that  it  cannot  be  revoked  at  the  mere  pleas- 
ure of  the  owner,^®  and  a  contract  authorizing  a  broker  to  sell  lands  within  a  certain 
period,  either  in  parcel  or  en  masse,  cannot  be  revoked  by  the  owner  during  the 
period,  where  the  broker  was  proceeding  diligently  in  the  sale.^^  A  broker's  con- 
tract authorizing  the  sale  of  a  large  tract  of  land  and  providing  that  it  should  be 
subdivided  and  that  a  portion  should  be  reserved  for  sale  on  other  terms  does  not 


(Hogan  V.  Slade  [Mo.  App.]  71  S.  W.  1104; 
Benedict  v.  PeU  [N.  Y.]  70  App.  Div.  40); 
of  employment  of  ag-ent  for  exchange  of 
lands  (Barton  v.  Powers.  182  Mass.  467);  for 
the  sale  of  stock  (Kratt  v.  Hopkins  [N.  Y.] 
77  App.  Div.  634);  of  broker's  employment  in 
an  action  against  the  owner  for  commis- 
sions (Benedict  v.  Pell  [N.  Y.]  70  App.  Div. 
40);  to  show  that  an  agent  was  employed  by 
another  to  purchase  an  electric  light  plant 
(Hart  V.  Maloney,  114  N.  Y.  State  Rep.  293); 
of  evidence  to  carry  to  the  jury  the  issue 
whether  the  president  of  a  corporation  and 
a  trustee  jointly,  or  one  of  them  individ- 
ually, employed  a  broker  to  sell  lands  of 
the  corporation  so  as  to  be  liable  for  com- 
missions— Monk  v.  Parker.  180  Mass.  246. 
Sufficiency  of  revocation  of  employment  of 
broker  for  sale  of  business  property — Ab- 
bott V.  Hunt,  12«  N.  C.  403. 

4.  Gast  V.   Buckley,   23  Ky.  Law  Rep.   992, 
64  S.  W.  632. 

5.  American    Val.    Co.    v.    Wyman,    92    Mo. 
App.   294. 

6.  McCormack    v.    McCaffrey     (N.    T.)     36 
Misc.  Rep.  775. 


7.  Haynes  v.  Fraser  (N.  Y.)  76  App.  Div 
627. 

8.  Horwitz  v.   Pepper,   128  Mich.    688. 

9.  Goldstein  v.  Scott  (N.  Y.)  76  App.  Div. 
78. 

10.  Under  Gen.  St.  N.  J.,  p.  1604.  §  10 
(Statute  of  Frauds) — Goldstein  v.  Scott  (N. 
Y.)   76  App.  Div.   78. 

11.  Under  L.  New  York  1901,  c.  128.  § 
640d.  making  a  sale  of  real  property  without 
written  authority  of  the  owner,  a  misde- 
meanor— Whiteley  v.  Terry  (N.  Y.)  39  Misc. 
Rep.  93. 

12.  Grossman  v.  Caminez  (N.  Y.)  79  App. 
Div.   15. 

13.  Howe  V.  Miller.  23  Ky.  Law  Rep.  1610, 
65  S.  W.  353,  66  S.  W.  184. 

14.  Taylor  v.  Martin  (La.)  33  So.  112; 
HufEman  v.  Ellis   (Neb.)   90  N.  W.  552. 

15.  Collier  v.  Johnson,  23  Ky.  Law  Rep. 
2453,  67  S.  W.  830. 

16.  Bird  v.  Phillips,  115  Iowa,  703. 

17.  McLane  v.  Maurer  (Tex.  Civ.  App.)  66 
S.  W.  693. 


362 


BROKERS, 


§   2 


contemplate  that  all  lands  should  be  surveyed  and  subdivided  before  sale  so  that 
failure  in  such  acts  will  authorize  revocation  of  the  contract.^®  A  contract  with  a 
broker  for  the  sale  of  lands  to  net  the  owner  a  certain  sum  may  be  terminated  at 
will  so  as  to  prevent  recovery  by  the  broker  for  services  thereafter.^^  The  law 
requiring  a  real  estate  broker's  license  will  not  prevent  one  not  a  broker  from  re- 
ceiving compensation  for  services  in  buying  and  selling  real  estate  of  others,-" 
nor  one  who  sells  land  for  an  owner  under  a  special  contract  without  holding  him- 
self out  as  a  real  estate  broker."  A  state  privilege  tax  on  resident  merchandise 
brokers  who  merely  solicit  orders  within  the  state  for  nonresident  dealers,  to  be 
shipped  by  them,  is  a  violation  of  the  commerce  clause  of  the  federal  constitution.-"^ 
A  law  requiring  a  license  on  agents  securing  laborers  to  work  in  anotner  state  does 
not  violate  the  federal  constitution  or  interfere  with  interstate  commerce. ^^ 

Agency  for  both  parties.^^ — A  lender  who  paid  a  loan  to  an  agent  of  the  bor- 
rower with  whom  the  borrower  had  made  arrangements  to  pay  oS.  mortgages  on  his 
property  is  not  liable  for  money  retained  by  the  agent  from  the  amount,  since  the 
latter  was  the  representative  of  the  borrower.^'  A  real  estate  agent  employed  by 
an  owner  to  sell  lands  on  commission,  after  the  conclusion  of  the  contract,  may 
become  an  agent  of  the  purchaser  to  pass  on  the  title,  pay  'the  price  and  receive  the 
deed,  if  the  purchaser  knows  of  his  former  employment  and  a  knowledge  of  an 
incumbrance  on  the  land  gained  in  such  capacity  will  be  binding  on  the  purchaser.'^" 

§  2.  Mutual  rights,  duties,  and  liabilities.  Representative  duties  and  au- 
thority."— The  authority  of  a  real  estate  agent  is  limited  to  the  terms  given  by  his 
principal.^®  Under  a  simple  agreement  with  brokers  to  find  a  satisfactory  pur- 
chaser, the  owner  is  entitled  to  determine  the  consideration  and  the  details  con- 
cerning pa3anent.^*  The  words  "placed  in  the  hands  of  'a  broker'  to  be  sold"  do 
not  confer  on  the  brokers  the  right  to  possession  of  the  land  but  merely  indicate 
appointment  for  sale.^°  A  contract  giving  a  broker  "the  sale  of  the  following  de- 
scribed property"  for  a  certain  period  at  a  certain  price,  is  one  conferring  an  ordi- 
nary broker's  authority,  and  will  not  authorize  him  to  sign  contracts  of  sale  for 
the  owner.^^  Where  an  owner  offered  his  property  to  an  agent  to  sell  at  a  certain 
price,  leaving  the  details  of  the  settlement  indefinite,  the  agent's  authority  extended 
only  to  production  of  the  buyer  and  he  could  not  complete  the  contract.**  An 
agent  for  renting  and  collecting  rents  cannot  authorize  another  to  sell  the  realty 
for  the  owner.^^  When  brokers  authorized  to  sell  land  during  a  period  of  six 
months  for  certain  terms,  and  afterwards  until  certain  notice  of  withdrawal  is 
given,  found  a  purchaser  able  and  willing  to  buy  at  the  terms,  they  could  contract 
to  sell,  allowing  a  reasonable  time  for  the  arrangements  and  his  investigation  of 
the  title,  and  were  not  required  to  demand  cash  payment.^*  A  broker  employed 
to  make  a  loan  has  no  authority  to  collect  principal  and  interest  though  payable  at 
his  office,  nor  will  authority  to  collect  interest  authorize  him  to  collect  the  prin- 


ts.    McLane  v.  Maurer  (Tex.  Civ.  App.)  66 
.  W.  693. 
19.     Abbott  V.  Hunt,  129  N.  C.  403. 

Raeder  v.  Butler,  19  Pa.  Sup.  Ct.  604. 
Black  V.  Snook  (Pa.)   53  Atl.  648. 
Stockard  v.  Morgan,  185  U.  S.  27. 
Laws    N.    C.    1901,    c.    9,    §   84 — State   v. 
Hunt,  129  N.  C.  686. 

24.  See    post,    §    4,   for   effect   on    right   to 
compensation. 

25.  Henken  v.  Schwicker  (N.  T.)   67  App. 
Div.  196. 

26.  Vercruysse  v.  Williams   (C.  C.  A.)   112 
Fed.   206. 


20. 
21. 


23. 


27.  Sufficiency  of  notice  to  show  ratifica- 
tion by  a  customer  of  an  unauthorized  pur- 
chase of  stock  by  brokers  on  his  accouni,  in 
good  faith — Wolff  v.  Lockwood  (N.  Y.)  70 
App.  Div.  569. 

28.  Balkema  v.  Searle,  116  Iowa,  374. 
Kilham  v.  Wilson  (C.  C.  A.)   112  Fed. 


29. 
565. 

30. 

31. 
453. 

32. 

33. 

34. 


Raeder  v.   Butler,   19  Pa.   Sup.  Ct.   604. 
Brandrup  v.   Britten   (N.  D.)    92  N.  W. 

Balkema  v.  Searle,  116  Iowa,  374. 
Topliff  V.  Shadwell,  64  Kan.  884. 
Gilmore  v.  Bailey,  103  111.  App.  245. 


§  2 


MUTUAL  RIGHTS  AND  LIABILITIES. 


363 


cipal,  especially  where  the  lender  retains  possession  of  the  security.^'  Brokers 
who  bought  wheat  for  a  customer  on  margins  were  not  bound,  after  his  death  and 
the  refusal  of  his  representatives  to  act,  to  make  the  necessary  advances  when  the 
market  fell  to  carry  the  wheat  instead  of  closing  out  as  the  contract  provided.^" 

Good  faith  and  diligence  of  the  parties.^'' — Though  a  contract  for  the  sale 
of  lands  by  an  agent  is  tmilateral  and  invalid,  an  advertisement  and  listing  by  the 
agent  is  a  sufficient  partial  performance  to  enable  an  enforcement.^^  A  contract 
for  the  sale  of  lands  providing  that  the  owner  shall  fix  the  price  will  raise  an  in- 
ference in  law  that  the  price  shall  be  fixed  and  the  sale  completed  within  a  reasona- 
ble time."  An  agent  for  the  sale  of  property  on  certain  terms,  who  learns  of  a 
better  sale  or  exchange  to  be  made,  should  make  known  the  facts  thereof  to  the 
owner  before  procuring  a  sale  as  authorized,  and  conduct  otherwise  amoimts  to  a 
fraud.*"  An  agent  for  the  sale  of  lands  without  particular  instructions  is  not 
guilty  of  fraud  for  failing  to  reveal  the  identity  of  a  purchaser  where  the  owner 
makes  no  inquiry  regarding  him.*^  The  owner  of  lands  is  entitled  to  know  who 
the  prospective  purchaser  is  for  the  purpose  of  consummating  the  sale,  but  a 
statement  by  him  to  the  agent  that  if  he  fails  to  meet  such  purchaser  at  the  time 
appointed  for  the  completion  of  the  same,  the  contract  may  be  considered  closed, 
is  a  sufficient  waiver  of  his  right  to  such  information.*^ 

Ratification  by  principal  of  unauthorized  acts. — Eatification  of  a  contract  of 
sale  by  an  attorney  in  fact  under  a  power  properly  made  will  bind  the  owner 
whether  he  knew  all  the  terms  and  conditions  of  the  contract  when  it  was  made 
or  not.*^  A  principal  who  receives  and  retains  the  consideration  from  a  sale  by 
his  agent  on  unauthorized  terms  and  does  not  offer  to  return  the  same  cannot  re- 
cover damages  from  the  agent  for  his  unauthorized  act  in  the  absence  of  his  fraud. 
Eetention  of  the  consideration  for  a  reasonable  time  is  sufficient  to  show  ratification 
and  no  particular  time  need  be  shown.**  Where  a  real  estate  agent  violated  his 
contract  by  taking  deeds  in  the  name  of  a  third  person  receipt  and  retention  of 
the  deeds  and  abstracts  by  the  principal  do  not  amount  to  a  ratification.*^  Ee- 
tention of  an  account  of  a  sale  of  stock  by  the  owner  without  objection  is  not  a 
ratification  of  the  sale  by  the  owner  without  authority,  where,  on  being  informed 
of  the  sale,  he  immediately  responded  to  his  broker  that  the  sale  was  without  au- 
thority.*' Acceptance  of  the  proceeds  of  a  sale  of  her  realty  by  an  aged  and  in- 
competent woman  did  not  amount  to  a  ratification  of  the  sale  by  her  agent,  especial- 
ly where  she  did  not  know  that  the  deed  named  the  agent  as  grantee,  and,  on  learn- 
ing such  fact,  stated  her  intention  to  recover  the  land.*^ 

Damages  for  negligence  or  unauthorized  conduct. — Where  an  agent  for  the 
Bale  of  realty  takes  a  different  security  in  payment  than  the  one  he  was  authorized 
to  take,  the  measure  of  damages  resulting  to  the  principal  from  his  act  is  the  dif- 
ference in  value  between  the  security  taken  and  the  one  authorized,  not  exceeding 
the  amount  of  payments  covered  by  the  security.*®  Where  it  appears  that  stock 
brokers  accepted  an  order  to  purchase  but  failed  to  execute  it,  and  it  is  not  shown 


35.  Heflferman  v.  Boteler,  87  Mo.  App.  316. 

36.  Demary  v.  Burtenshaw's  Estate 
(Mich.)  9  Detroit  Leg.  N.  365,  91  N.  W.  647. 

37.  What  constitutes  a  reasonable  time 
within  which  a  purchaser  of  stock  may  re- 
purchase stock  to  replace  that  which  should 
have  been  purchased  by  his  brokers  within 
the  rule  to  recover  as  damages  for  negli- 
gence of  brokers — Burhorn  v.  Lockwood  (N. 
Y.)  71  App.  Div.  301. 

88.     Lapham  v.  Flint.  86  Minn.  376. 

88.     Tinsley  v.  Durfey,   99  111.  App.   239. 


Holmes  v.  Cathcart   (Minn.)   92  N.  W. 

Rank  v.  Garvey  (Neb.)  92  N.  W.  1025. 
Simpson  V.  Smith  (N.  Y.)  36  Misc.  Rep. 

Rank  v.  Garvey  (Neb.)   92  N.  W.  1025. 
Lunn  v.  Guthrie,  115  Iowa,  501. 
Cole  V.  Baker  (S.  D.)  91  N.  W.  324. 
Burhorn  v.  Lockwood  (N.  Y.)  71  App. 
Div.  301. 

47.  Clark  v.  Bird  (N.  Y.)   66  App.  Div.  284. 

48.  Lunn  V.  Guthrie,  115  Iowa,  501. 


40. 

956. 

41. 

42. 
815. 

43. 

44. 

45. 

46. 


364 


BROKERS. 


§   3 


that  they  were  to  carry  the  stock  for  a  rise,  the  measure  of  damages  for  the  jury 
is  the  difference  between  the  market  value  on  the  day  set  for  purchase  and  the 
market  value  within  a  reasonable  time  after  knowledge  of  the  broker's  negligence, 
during  which  the  plaintiff  might  have  purchased.*®  ^^^lere  three  persons  are  in- 
terested together  in  a  speculative  account  with  stock  brokers,  they  may  be  regarded 
as  partners  by  the  brokers  so  that  one  is  individually  liable  for  the  balance  due  on 
the  account,  and  it  may  be  set  off  by  the  brokers  in  an  action  against  them  by  such 
person  for  damages  in  closing  an  account  in  which  he  was  individually  interested. °° 

Accounting  to  2)rincipal. — An  agent  in  charge  of  the  management  and  sale  of 
the  premises  failing  to  communicate  offers  to  his  principal  and  purchasing  for 
himself  at  a  less  price  that  the  offers,  who  sells  afterward  at  an  advanced  price, 
must  account  to  his  principal.^^  A  land  broker  who  purchases  for  himself,  using 
a  third  person  as  intermediary,  and  sells  at  a  profit,  must  account  for  such  profit  to 
the  owner.^^  The  relations  of  broker  and  principal  for  the  purchase  of  stock  on 
a  margin  are  not  those  of  pledgee  and  pledgor,  but  of  parties  to  an  executory  con- 
tract for  the  sale  and  purchase  of  the  stock,  so  that  the  broker  is  bound  to  deliver 
the  stock  purchased  on  demand  and  payment  and  may  claim  payment  on  the  tender 
of  the  stock  after  reasonable  notice.'*^  Stock  brokers  cannot  be  compelled  to  re- 
turn funds  appropriated  by  them  in  their  negotiations  for  their  principal  where 
it  is  not  shown  what  their  contract  was  nor  that  they  were  not  entitled  to  retain  the 
funds.^* 

Remedies  hetween  the  parties.^^ — Causes  of  action  by  a  purchaser  of  stock 
against  a  broker  acting  for  him  on  margins  without  any  intention  lliat  the  sale 
should  be  completed  by  actual  delivery  may  be  joined,  since  they  sound  in  con- 
tract.^" On  a  general  assignment  by  a  broker,  or  on  his  becoming  bankrupt,  a  cus- 
tomer need  not  make  a  demand  and  tender  before  asserting  the  breach  of  the  con- 
tract, though  the  parties  may  regard  the  assignment  as  temporary  and  treat  the 
bankruptcy  as  a  breach  if  the  trustee  does  not  tender  performance  within  a  rea- 
sonable time,  so  that  the  customer's  damages  may  begin  at  the  date  of  the  bank- 
ruptcy petition.®^  In  an  action  for  damages  against  an  agent  for  the  sale  of  land 
on  unauthorized  terms,  if  the  principal  pleads  no  fraud,  he  must  show  a  return 
of  the  consideration  received  by  him  to  the  purchaser  or  an  offer  for  such  return, 
and  the  agent  is  not  charged  with  the  burden  of  proving  that  the  principal  re- 
ceived and  retained  the  consideration."* 

§  3.  Rights  and  liabilities  of  principal  and  hrol-er  as  to  third  persons. — The 
holder  of  a  note  is  not  estopped  to  deny  the  authority  of  a  broker  to  receive  payment 
where  the  payor  does  not  know  of  the  holder's  ownership."®  One  who  pays  the 
amoimt  of  security  to  another  as  agent  for  the  holder,  who  is  in  possession  of  the 


,    MacLennan,    17    App.    D.    C. 
Lockwood    (N.    Y.)    70    App. 


49.     Gurley 
170. 

.■>©.     Wolff    -^ 
Div.  569. 

51.     Cornwell  v.  Foord,   96  lU.  App.   366. 

.'52.     Merriam  v.  Johnson,   S6  \Minn.   61. 

.".3.  In  re  Swift  (C.  C.  A.)  112  Fed.  315; 
Hutchinson  v.  Dee,  Id. 

54.  Sufficiency  of  complaint — Cowen  v. 
Voyer  (N.  T.)   79  App.  Div.  638. 

"..">.  Pleading  and  burden  of  proof  in  an 
action  by  a  principal  against  his  stock  bro- 
ker for  recovery  of  a  balance  alleged  to  be 
retained  by  the  broker — Kratt  v.  Hopkins 
(N.  Y.)  77  App.  Div.  634.  Sufficiency  of  evi- 
dence to  set  aside  conveyance  of  lands  se- 
cured by  an  agent  for  an  aged  and  incompe- 


tent principal  (Clark  v.  Bird  [N.  Y.]  66  App. 
Div.  284);  of  evidence  of  ratification  of  a 
contract  for  the  sale  of  land  by  the  owner 
(Topliff  v.  Shadwell,  64  Kan.  884);  of  evi- 
dence to  show  that  a  contract  made  by  the 
sales  agent  of  a  land  company  was  binding 
on  the  company — Keen  v.  Maple  Shade  L.  & 
I.  Co.   (N.  J.)   50  Atl.  467. 

50.  Actions  under  Sts.  (Mass.)  1890,  c. 
437,  §  2,  as  construed  in  connection  with  Pub. 
Sts.  (Mass.)  c.  167,  §  2,  cl.  5 — Ballou  v.  Wil- 
ley,   180  Mass.   562. 

57.  In  re  Swift  (C.  C.  A.)  112  Fed.  315; 
Hutchinson  v.  Dee,  Id. 

58.  Lunn  v.  Guthrie,  115  Iowa,   501. 

!59.  Hefferman  v.  Botel«>r.  87  Mo.  App. 
316. 


COMPENSATION   AND   LIEN. 


565 


paper,  takes  the  risk  of  showing  the  authority  of  the  agent  to  collect.®"  Where 
a  broker  employed  to  procure  and  consummate  the  purchase  of  lands,  learned,  before 
the  transaction  was  complete,  that  there  was  an  outstanding  mortgage  which  really 
covered  the  land  but  which  by  mistake  was  made  to  describe  a  different  tract,  and 
accepted  the  title  and  paid  for  the  lands,  the  purchaser  was  bound  by  the  agent's 
knowledge  and  the  mortgage  could  be  enforced  against  him.®^  Where  an  offer  to 
buy  cotton  in  bale  made  through  a  broker  was  subject  to  confirmation  by  the 
buyer  and  he  insisted  that  the  broker  should  give  security,  such  condition  was  not  a 
waiver  of  the  customary  requirement  for  confirmation  and  until  such  contract  was 
so  confirmed,  no  action  could  be  maintained  upon  it.®^  Where  a  broker  can  sell 
only  on  confirmation  b}^  his  principal  and  misrepresents  a  prospective  sale  to  the 
latter  so  as  to  secure  approval,  there  was  no  sale  though  the  goods  were  delivered 
and  the  seller  could  recover  goods  retained  by  the  purchasers  though  he  could  not 
recover  for  goods  which  the  purchaser  returned  to  the  broker  as  in  excess  of  the 
amount  they  ordered.®'  In  an  action  for  deceit  in  an  exchange  of  property  con- 
ducted by  the  broker  of  defendant,  evidence  that  defendant  complained  of  the  con- 
tract made  by  his  broker  is  suflScient  to  show  the  employment.®* 

§  4.  Compensation  and  lien.^^ — If  it  appears  in  an  action  for  commissions 
that  there  were  no  acts  for  the  brokers  to  perform,  a  promise  for  commissions  is 
without  consideration  and  void."*  An  executory  contract  by  a  real  estate  agent,  to 
reduce  his  commissions  in  order  to  secure  a  sale,  based  upon  a  bona  fide  misstate- 
ment of  an  agent  of  the  buyer  that  the  sale  could  not  be  reached  without  reduc- 
tion, is  without  consideration,  and  cannot  be  enforced  by  either  party  to  the  sale.®'' 
An  oral  offer  to  the  owner,  by  the  proposed  purchaser  secured  by  an  agent,  to  buy 
the  lands  at  the  agreed  price  is  sufficient  under  the  Iowa  statutes  to  entitle  the 
agent  to  commissions.®^ 

A  real  estate  hrolcer  is  entitled  to  commissions  where  it  appears  that,  within 
the  time  limited,  he  found  a  solvent  purchaser  ready  to  make  an  enforceable  con- 
tract at  the  seller's  terms,®®  or  at  more  favorable  terms,''®  or,  in  the  absence  of  ex- 
press terms,  at  terms  acceptable  to  the  owner.''^  It  must  appear  that  the  purchaser 
was  secured  by  the  broker  or  that  he  in  some  way  aided  the  sale.''*  The  rule  ap- 
plies to  an  exchange  as  well  as  a  sale  of  lands.'''  That  the  principal  did  not  know 
that  the  agent  secured  a  purchaser  to  come  to  him  will  not  prevent  recovery,  nor 
that  the  title  to  the  property  was  in  the  name  of  the  principal's  wife.''*  Com- 
pletion of  a  satisfactory  contract  with  the  principal  is  sufficient  though  it  calls  for 
part  pajTnent  and  the  principal  failed  to  collect  the  remainder.'"'  A  broker  em- 
ployed to  secure  a  buyer  for  land  at  a  "figure  satisfactor}'"  to  the  owner  must  com- 
ply with  this  condition  before  he  is  entitled  to  recover  commissions.''®     'UTiere  it 


Ilefferman    v.    Boteler,    87    Mo.    App. 

Vercruysse  v.  'Wllllanis   (C.  C.  A.)   112 
206. 
Johnston  v.  FairiAont  Mills,   116   Fed. 


60 

316. 
61. 

Fed. 
62 

537. 

63.  Frye  v.  Keller  (Tex.  Civ.  App.)  72  S. 
W.    228. 

64.  Arnold  v.  Teel,  182  Mass.   1. 

e.'.  Sufficiency  of  compliance  by  broker 
with  terms  of  sale  as  fixed  by  owner — 
Donly  V.  Porter  (Iowa)  93  N.  W.  574.  Right 
to  compensation  for  securing  sale  of  a  fefry 
— Gracie    v.    Stevens,    171    N.    T.    658. 

66.  Wolff  V.  Denbosky  (N.  Y.)  36  Misc. 
Rep.    643. 

67.  Dayton  v.  Am.  Steel  Barge  Co.  (N.  Y.) 
86   Misc.   Rep.    223. 


68.  Bird    v.    Phillips,    115    Iowa,    703. 

69.  Ross  V.  Smiley  (Colo.  App.)  70  Pac. 
766;  Locke  v.  Griswold,  96  Mo.  App.  f,27; 
Phillips  V.  Dowhower,  103  111.  App.  50;  Sul- 
livan V.  Milliken  (C.  C.  A.)  113  Fed.  93; 
McCaffrey   v.    Page,    20    Pa.    Super.    Ct.    400. 

70.  McCaffrey  v.  Paige,  20  Pa.  Super.  Ct. 
400. 

71.  Falrchlld  v.  Cunningham,  84  Minn. 
521. 

72.  "Wilson  V.  Weber  (Tex.  Civ.  App.) 
68    S.    W.    800. 

73.  Hersher  v.   Wells,   103   111.   App.   418. 

74.  Rounds   V.    Alee,    116    Iowa,    345. 

75.  Brady  v.  Foster  (N.  Y.)  72  App.  Dlv. 
416. 

76.  Weibler  v.  Cook  (N.  Y.)  77  App.  Dlv. 
637. 


36b 


UKOKERS. 


§  4 


appears  that  two  brokers  were  given  the  sale  of  certain  lands,  the  one  that  first 
directed  the  attention  of  a  purchaser  thereto  and  visited  the  property  with  him  was 
not  entitled  to  commissions,  unless  it  appeared  that  he  was  the  procuring  cause  of 
the  saleJ^  Mere  introduction  of  a  purchaser  to  the  owner  by  an  agent  without  au- 
thority who  also  rendered  some  assistance  in  furthering  negotiations  will  not  en- 
title the  agent  to  commissions.''*  Where  a  purchaser  was  found  by  the  owner  and 
the  brokers  merely  repeated  an  accepted  proposition  to  the  purchaser,  after  it  had 
been  made  by  the  owTier  who  closed  the  trade  himself,  the  agents  are  not  the  pro- 
curing cause  of  the  sale  so  as  to  be  entitled  to  commissions.'^^  If  a  broker  does  not 
have  exclusive  charge  of  the  land,  so  as  to  prevent  its  sale  by  the  owner,  and  was 
not  instrumental  in  bringing  about  a  sale,  he  cannot  recover  commissions.*"  If 
land  is  listed  as  a  whole  and  the  broker  has  authority  to  sell  only  in  that  manner, 
a  sale  by  the  owner  of  part  of  the  property  after  the  employment  is  terminated 
will  not  entitle  the  broker  to  a  commission.*^  Where  negotiations  by  a  broker  are 
brought  to  a  definite  proposition  to  the  owner  by  a  buyer,  but  the  proposition  is 
rejected  and  the  negotiations  abandoned,  a  purchase  by  the  same  person  subse- 
quently after  the  termination  of  the  broker's  authority,  direct  from  the  owner  with- 
out fraud  of  the  latter,  will  not  entitle  the  broker  to  commissions.*^  Where  the 
agent  informed  the  owner,  who  was  unable  to  understand  English,  that  the  contract, 
at  the  time  of  signature,  provided  that  the  agent  was  to  have  no  commissions,  he 
cannot  recover  commissions  if  the  owner  found  a  buyer  without  assistance.*^  The 
employment  of  a  second  broker  by  the  first,  on  information  from  the  latter,  cannot 
be  proven  to  defeat  commissions  for  a  sale  of  land.**  Wliere  an  agent  author- 
ized to  sell  land  at  a  certain  price  put  the  owner  into  communication  with  a  pur- 
chaser, but  the  latter  postponed  the  purchase  and  subsequently  went  to  another 
agent  who  had  authority  to  sell  the  same  land  and  purchased  at  a  reduced  price, 
which  was  accepted  by  the  owner,  the  first  agent  was  entitled  to  a  commission  for 
the  sale.*^  An  agent  who  procured  a  purchaser  willing  to  buy  corporate  property 
within  the  terms  of  his  contract  is  entitled  to  his  agreed  commission  though  the 
purchaser  demanded  indemnity  against  certain  suits  brought  against  the  corpora- 
tion, of  which  he  had  no  notice,  and  which  were  not  noticed  in  the  contract.*^  A 
broker  is  entitled  to  his  agreed  commission  where  he  furnishes  a  building  con- 
tractor with  information  whereby  he  enters  into  contracts  for  the  construction  of 
buildings  for  the  principal.*^  If  a  promoter  aided  in  negotiations  with  prospective 
purchasers  of  a  street  railway  under  a  contract  with  the  owners,  the  owners  are 
liable  for  his  compensation;  and,  where  the  contract  provided  for  compensation  if 
any  of  the  negotiations  with  the  prospective  purchaser  were  completed,  the  owners 
cannot  urge  a  change  in  the  contract  to  prevent  pajonent  of  commissions.**  Where 
the  broker  is  the  procuring  cause  of  a  loan,  he  is  entitled  to  commission  from  the 
one  who  authorized  or  ratified  his  employment  for  that  purpose.*^  He  must  in- 
form his  client  that  a  lender  has  been  found  or  actually  complete  the  loan  in  order 


77.  Bowser  v.  Mick,  29  Ind.  App.  49. 

78.  McVickar    v.    Roche    (N.    Y.)    74    App. 
Div.    397. 

79.  Collier   v.   Johnson,    23   Ky.    Law   Rep. 
2453,  67    S.    W.    830. 

80.  Buck    V.    Hogeboom    (Neb.)    90    N.    W. 
635. 

81.  Frenzer  v.  Lee   (Neb.)   90  N.  W.   914. 

82.  Fairchlld     v.     Cunningham,     84     Minn. 
621. 

83.  Curtis   V.    Wagner,    98    111.   App.    345. 

84.  Adams  V.  McLaughlin    (Ind.)    64   N.   E. 
462. 


85.  Cunliff  V.  Hausman  (Mo.  App.)  71  S. 
W.    368. 

86.  Injunctions  relating  to  paving  con- 
tracts to  be  assigned  the  purchaser  In  the 
course  of  the  contract — Indiana  Bermudez 
Asphalt   Co.    V.    Robinson,    29    Ind.   App.    69. 

87.  Kaestner  v.  Oldham,  t02  111.  App.   372. 

88.  Alexander  v.  Wakefield  (Tex.  Civ, 
App.)    69   S.  W.   77. 

89.  Sufficiency  of  evidence  to  show  em- 
ployment of  broker  to  secure  a  loan  and 
to  show  that  the  broker  was  the  procuring 
cause  of  the  loan — Williams  v.  Clowes 
(Conn.)  52  Atl.  820. 


§  4 


UOMFKJNSATION    AND    L,1EN, 


367 


to  merit  his  commissions.'"  There  is  no  implied  promise  on  the  part  of  an  owner 
to  pay  commissions  to  a  third  person  who  procured  an  exchange  of  lands  through 
information  from  the  broker  employed  to  effect  the  exchange.'^  A  broker  who 
mails  a  letter  accepting  a  proposition  for  the  purchase  of  lands  is  complying  with 
His  contract  so  as  to  be  entitled  to  his  commissions  even  though  the  letter  is  inter- 
cepted by  another  before  its  delivery.''^  A  condition  in  a  contract  between  an 
owner  and  a  broker  that  the  commission  shall  be  paid  out  of  the  first  cash  payment 
is  not  a  condition  precedent  to  the  right  to  recover  commissions  since  it  does  not 
mean  that  unless  a  cash  payment  is  made  no  commission  can  be  recovered.^^ 
Where  a  broker  authorized  to  sell  land  for  a  certain  price  was  offered  a  larger 
amount  by  the  purchaser,  who  afterwards  bought  without  the  broker's  aid,  he  could 
not  recover  the  excess  in  the  price  from  the  purchaser  but  must  sue  the  owner."* 
Where  a  land  owner  wrote  a  broker  declining  an  offer  of  purchase  made  through  him, 
and  asking  a  larger  price,  which  was  declined,  at  the  same  time  denying  any  contract 
for  commissions  on  the  sale  if  made,  a  sale  through  a  third  person  to  the  same 
purchaser  for  a  different  price  will  not  entitle  the  broker  to  commissions."^  Where 
a  loan  broker  fails  to  appear  at  the  time  specified  for  completing  the  loan  and  the 
papers  are  not  prepared,  the  borrower  cannot  rescind  his  contract  and  deprive  the 
broker  of  commissions,  if  the  latter  offers  to  perform  the  same  day."* 

Revocation  of  the  broker's  autliority  will  prevent  recovery  of  commissions  for 
a  sale  effected  thereafter,  his  efforts  in  this  behalf  being  voluntary,"^  but  if  the  own- 
er permits  an  agent  to  act  for  him  in  completing  a  sale  after  notice  of  the  termina- 
tion of  his  contract,"^  or  if  the  revocation  is  made  after  an  able  and  willing  pur- 
chaser is  secured  by  the  broker,  he  is  liable  for  commissions."®  Merely  bringing 
parties  to  a  sale  together  in  the  absence  of  a  binding  contract  will  not  entitle  the 
broker  to  commissions,^  especially  if  the  broker  was  entitled  to  commissions  only 
if  the  land  was  sold,  and  his  employer  was  in  no  way  responsible  for  the  failure 
of  sale.^  Where  it  does  not  appear  that  the  parties  to  a  proposed  sale  ever  met 
on  any  terms  or  conditions  as  to  pa}Tnents  of  the  price,  the  broker  is  not  entitled  to 
commissions  where  those  conditions  were  a  part  of  his  contract  though  the  pur- 
chaser offered  to  buy  at  the  agreed  price.'  If  a  broker  brings  the  parties  to  an  ex- 
change of  property  together,  that  the  contract  is  made  without  notice  to  him,*  or 
that  the  owner  completed  the  sale"*  will  not  deprive  the  broker  of  compensation.  If 
an  owner  accepts  an  offer  on  certain  terms,  the  broker  finding  a  purchaser  may  re- 
cover his  commission,  though  the  terms  are  indefinite.'  If  the  broker  sells  on  otl'ier 
terms  than  those  given  him  by  the  owner,  he  cannot  recover  commissions,^  as  where 
he  sold  land  for  $17  less  than  the  price  set  by  the  owner.* 

The  broker  must  show  that  a  purchaser  secured  by  him  is  able  to  complete 


90.  McLaug-hlin  v.  Whiton  (N.  Y.)  36 
Misc.   Rep.   838. 

91.  Dartt   v.    Sonnesyn,    86    Minn.    55. 

92.  Scottish-American  Mortg-.  Co.  v.  Davis 
(Tex.    Civ.    App.)    72    S.    W.    217. 

93.  Finch  v.  Guardian  Trust  Co.,  92  Mo. 
App.    263. 

04.  The  broker  was  bound  to  sell  for  the 
best  price  obtainable  and  account  for  all 
receipts  except  a  reasonable  compensation 
— Boysen   v.   Robertson,   70  Ark.   56. 

95.  Land  Mortgage  Bank  v.  Hargis  (Tex. 
Civ.  App.)  70  S.  yv.  352. 

96.  Collier  v.  Weyman,   114  Ga.   944. 

97.  Fairchlld  v.  Cunningham.  84  Minn. 
621. 

98.  Dayton  v.  Am.  Steel  Barge  Co.  (N.  Y.) 
36  Misc.  Rep.  223. 


99.  McLane  v.  Goode  (Tex.  Civ.  App.) 
68    S.   W.   707. 

1.  Pipkin  V.  Home  (Tex.  Civ.  App.)  68 
S.  W.  1000;  Carnes  v.  Howard,  180  Mass. 
569.  An  instruction  that  if  he  brought  the 
parties  together  thereby  beginning  negotia- 
tions that  resulted  in  a  sale  is  misleading 
as  not  showing  that  he  elfected  the  sale — 
Bowser  v.  Mick,    29   Ind.   App.   52. 

2.  Owen  v.  Kuhn,  Loeb  &  Co.  (Tex.  Civ. 
App.)    72   S.   W.    432. 

3.  Drake  v.  Biddinger  (Ind.  App.)  66  N. 
E.    56. 

4.  French    v.    McKay,    181    Mass.    485. 

5.  Dean  v.  Archer,   103   111.   App.   455. 

6.  Monk   V.   Parker,    180   Mass.    246. 

7.  Huffman  v.   Ellis    (Neb.)    90  N.   W.    552. 

8.  Howell  v.  Denton  (Tex.  Civ.  App.) 
68  S.  W.  1002. 


368 


BROKKRS. 


§    ^ 


the  contract,  which  included  an  exchange  of  lands,  and  a  mere  production  of  deed- 
is  insufficient  unless  he  shows  that  the  purchaser  held  ownership  to  the  lands  which 
were  the  subject  of  the  contract.®  If  the  purchaser  secured  by  the  broker  accept- 
the  terms,  the  commission  is  earned  though  the  purchaser  fails  to  complete  the  sale 
and  demands  a  reduction  in  the  price.^°  Though  a  broker  secured  a  purchaser  and 
the  terms  were  fully  agreed  upon  and  a  deposit  made,  but  no  memorandum  or  re- 
ceipt made  between  the  parties,  he  is  not  entitled  to  commissions  where  the  pur- 
chaser subsequently  refuses  to  complete  the  contract. ^^  That  a  contract  for  the 
tale  of  a  mine  was  not  capable  of  enforcement  and  was  canceled  by  the  parties 
will  not  prevent  a  recovery  of  commissions  by  an  agent  who  found  a  customer  ac- 
cording to  his  agreement.^-  \Miere  an  agent  is  employed  to  sell  property  for  ^ 
certain  price,  all  over  such  price  to  belong  to  the  agent,  and  in  case  of  withdrawal 
before  sale,  to  receive  a  certain  commission  on  the  price  of  the  property  at  that 
time,  he  is  entitled  to  such  commission  on  withdrawal.^'  A  contract  of  sale  with  a 
purchaser  secured  by  a  land  broker  which  provides  for  delivery  on  the  first  payment 
and,  in  case  of  default  that  the  contract  shall  be  returned  to  the  owner,  is  a  mere  op- 
tion and  on  failure  thereof,  the  broker  is  not  entitled  to  commissions.^* 

Sufficiency  of  performance. — ^Yllere  a  contract  written  by  the  broker  representing- 
the  owner  of  lands  contained  a  mistaken  description,  and  included  lands  which  ho 
did  not  own,  without  his  knowledge  and  consent,  the  broker  is  not  entitled  to  com- 
missions though  the  tract  to  be  conveyed  actually  contained  more  than  the  amount 
specified. ^^  Wliere  an  agent  to  sell  lands  was  under  verbal  authority,  the  principal 
cannot  object,  in  an  action  for  commissions,  that  an  acceptance  by  a  purchaser  was 
insufficient  because  it  called  for  a  written  agreement  warranting  a  perfect  title  and 
an  adjustment  of  rent  and  interest  details  since  such  agreement  was  necessary  to  a 
binding  contract.^^  Where  an  owner  agreed  to  pay  another  a  commission  for  ob- 
taining a  tenant  for  his  building,  and  after  unsuccessful  efforts  by  the  agent,  another 
agent  of  the  owner  secured  a  tenant  on  different  terms  from  those  offered  by  the  first 
agent,  without  any  participation  of  the  latter,  he  was  not  entitled  to  commissions.^' 
Where  a  broker  sold  goods  at  a  higher  price  than  set  by  the  owner  and  part  of  the  or- 
der was  filled  by  the  latter  before  revocation  of  the  sale  by  the  buyer,  and  subsequent- 
ly the  buyer  renewed  the  contract  at  a  lower  price,  the  broker  was  entitled  to  com- 
missions on  the  whole  amount  of  goods.**  An  agreement  with  a  broker  to  accept  a 
loan  on  property  and  pay  commissions  from  the  proceeds  of  the  loan  will  not  ren- 
der his  employer  liable,  where  the  title  is  rejected  by  the  lender  and  the  loan  re- 
fused.*® Where  the  commission  of  a  loan  broker  is  to  be  deducted  from  the  loan 
on  the  day  of  closing,  the  principal  is  not  liable  for  the  commission,  if  his  title 
is  rejected  and  the  loan  refused  by  the  lender.-"  Wlicre  the  trustees  of  an  estate  fur- 
nished a  perfect  record  title  for  the  security  of  a  loan  which  they  had  emplo3-ed  an 
agent  to  secure  for  them  on  commissions,  but  the  agent  failed  to  procure  the  loan 
because  the  lender  declined  to  accept  the  title,  the  agent  was  not  entitled  to  com- 
missions.^*    The  owner^s  refusal  to  complete  a  purchase  will  not  prevent  recovery 


{).     Hersher    v.    Wells,    103    111.    App.    418. 

10.  Michaelis     v.     Roffmann     (N.     Y.)     37 
Misc.   Rpp.    830. 

11.  Kronenberger   v.    Bierling    (N.    T.)    37 
Misc.   Rep.   817. 

12.  Mattes   V.   Engel,   15   S.   D.   330. 

13.  Schlange  v.  Lennox,  101  111.  App.  88. 

14.  Arthur   D.    Jones    &   Co.   v.    Eilenfeldt, 
28  Wash.  687,  69  Pac.  368. 

15.  Scott   V.    Gage    (S.   D.)    92   N.   W.    37. 

16.  Ross   V.    Smiley    (Colo.   App.)    70    Pac. 
766. 


17.  Henkel   v.   Dunn    (Mo.   App.)    71    S.   W. 
735. 

18.  Edward  H.  Everett  Co.  v.  Cumberland 
Glass  Mfg.  Co.,   112   Wis.   544. 

19.  Hess  V.  Eggers   (N.  Y.)   38  Misc.  Rep. 
726. 

SO.     Hess  V.   Eggers   (N.   Y.)    37  Misc.   Rep. 
845. 

21.     Marmaduke    v.    Martin,     90    Mo.    App. 
629. 


^4 


COMPENSATION    AND    LIEN. 


369 


of  commission  ^here  the  broker  has  secured  a  purchaser  ready  and  willing  to  buy 
on  the  terms  offered,--  though  the  commission  consists  of  a  percentage  of  the  price 
to  be  obtained.^^  That  the  owner  was  at  liberty  to  sell  and  had  given  another  an 
option  on  the  property,  which  either  party  thereto  might  revoke  at  any  time,  will 
not  relieve  him  of  liability  for  commission.^*  That  his  employer  does  not  own 
the  lands  to  be  sold  and  cannot  secure  the  title  will  not  prevent  recovery  of  commis- 
sions, where  he  secured  a  purchaser  satisfactory  in  every  way  without  knowledge  o1 
these  facts  ;^''  and  where  he  brought  a  purchaser  able  and  willing  to  buy  on  the 
owner's  terms,  he  is  entitled  to  compensation  though  the  sale  is  not  completed  on 
such  terms  owing  to  the  misrepresentations  of  the  owner  as  to  the  property.-^* 
Where  the  owner  of  lands  calls  off  negotiations  by  his  broker  for  a  sale,  because  of 
litigation  between  him  and  the  prospective  purchaser,  a  subsequent  sale  by  the 
owner  to  such  purchaser  in  settlement  of  the  litigation  will  not  entitle  the  broker 
to  commissions.^''  An  owner  who  authorized  a  broker  to  sell  land  for  a  certain 
price  on  a  certain  cash  payment  and  balance  on  delivery  of  title,  but  refused  to 
complete  the  sale  because  the  price  was  insufficient,  exclusive  of  commissions,  was 
estopped  to  assert  afterward  that  he  was  not  bound  to  pay  commissions  because  the 
agent  did  not  comply  with  his  instructions  as  to  payment  of  price.^*  Where  an 
executor  employs  an  agent  to  secure  a  loan  at  a  certain  commission,  and  the  agent 
produces  a  lender  able  and  willing  to  make  the  loan,  but  he  declines  because  the 
executor  does  cot  have  authority  to  execute  the  mortgage  on  the  lands  of  the 
estate,  the  agent  may  recover  his  commission.^*  A  loan  broker  who  secured  a  party 
willing  to  make  the  loan  within  his  terms  but  was  prevented  from  completing  the 
contract  on  account  of  a  cloud  on  the  title  to  the  land  which  was  to  be  made  the 
security,  and  the  borrower  did  not  complete  the  title  until  finally  conditions  had 
changed  so  that  the  lender  declined  to  make  the  loan,  is  nevertheless  entitled  to  com- 
missions.^*' 

That  the  owner  in  his  agent's  presence  modified  the  terms  of  the  purchaser's 
proposal  as  to  the  method  of  payment  will  not  prevent  the  recovery  of  commissions 
by  the  agent,^^  as,  a  change  in  the  price  to  which  the  owner  agreed,^^  or  a  change 
in  the  contract  u^hereby  an  exchange  of  lands  instead  of  a  sale  was  effected  ^^ 
or  a  change  in  the  property  so  that  other  property  was  received.^*  Where  the 
broker  brought  the  parties  to  a  contract  together  and  by  negotiations  between  them- 
selves they  effected  an  exchange  of  property  different  from  that  which  was  contem- 
plated by  the  broker,  he  is  entitled  to  commissions  if  he  stood  ready  to  render  any 
services  necessary  to  effect  the  exchange  and  his  conduct  was  the  efficient  cause 
which  produced  the  result.^'*  If  the  owner  makes  a  new  condition  for  compliance 
with  a  sale  effected  by  his  authorized  broker  to  an  able  and  willing  purchaser  the 
agent  is  entitled  to  commissions  though  the  transaction  fails.^*  Where  a  landowner 
sold  a  larger  tract  of  land  to  a  purchaser  secured  by  a  broker  than  was  intrusted  to 


22.  York  V.  Nash  (Or.)  71  Pac.  59;  Bird 
V.  Phillips,  115  Iowa,  703;  Thain  v.  Phil- 
brick  (N.  T.)  36  Misc.  Rep.  829;  Gresham 
V.  Connally,  114  Ga.  906;  Sullivan  v.  Mil- 
liken  (C.  C.  A.)  113  Fed.  93;  Hersher  v. 
Wells,    103   111.   App.   418. 

23.  Stauffer  v.  LInenthal,  29  Ind.  App. 
805. 

24. 
25. 
2G. 


28. 

2y. 


York   V.   Nash    (Or.)    71    Pac.    59. 
Monk  V.   Parker,    180   Mass.    246. 
Veatch  v.  Norman,   95   Mo.  App.   500. 
Taylor  v.  Martin   (La.)    33  So.    112. 
Donly  V.   Porter   (Iowa)    93  N.  W.   574. 
Fullerton   v.   Carpenter    (Mo.   App.)    71 


S.  W.  98. 


30.  Clark  v.  H.  G.  Thompson  Co.  (Conn  ) 
52    Atl.    720.  VV.OUU., 

31.  Sale  of  street  railway  secured  by 
agent — Alexander  v.  Wakeneld  (Tex  Civ 
App.)  69  S.  W.  77;  Huntemer  v.  Arent  (S 
D.)    93    N.    W.    653. 

32.  McLane  v.  Goode  (Tex,  Civ.  App  )  68 
S.   W.    707. 

33.  Rabb    v.    Johnson,    28    Ind.    App.    665. 

34.  French    v.    McKay,    181    Mass.    485. 
33.     French    v.    McKay,    181    Mass.    485. 

36.  McQuillan  V.  Carpenter  (N.  Y.)  72 
App.    Div.    595. 

37.  Veatch    v.    Norman,    95    Mo.    App.    500. 


Cur.   liaw — 24. 


370 


JBKOKEKS. 


8    4 


the  broker,  and  at  a  less  price,  before  a  reasonable  time  was  given  for  completion 
of  the  sale  begun  by  the  broker,  the  latter  was  entitled  to  a  reasonable  compensa- 
tion for  services  rendered.^'  A  broker  who  is  promised  certain  commissions  for  a 
sale  at  not  less  than  a  certain  price,  and  certain  extra  commissions  and  compensa- 
tion for  his  services  if  the  property  is  sold  by  the  owner,  is  entitled  to  the  latter 
compensation  where  he  has  performed  his  duties,  though  the  owner  sells  on  his 
own  account  for  less  than  the  agreed  price.^^  "Modification  of  a  contract  for  sale  of 
lands,  made  by  a  broker  employed  to  exchange  all  or  a  part  of  his  principal's  lands, 
will  not  affect  the  right  to  commissions  where  arranged  by  the  principal  himself 
and  made  necessary  by  conditions  bej^ond  the  broker's  control.^®  A  broker  emploA-ed 
to  sell  for  a  specified  sum,  or  less  if  accepted  by  the  owner  in  writing,  on  a  condition 
that  during  a  certain  time  the  owner  will  not  sell  except  through  the  broter,  or, 
if  he  does,  will  pay  full  commissions,  can  recover  commissions  on  a  sale  by  the 
owner  during  the  time,  though  the  owner  referred  the  broker  to  the  purchaser  and 
though  the  amount  received  was  less  than  the  amount  specified.*"  That  one  who 
sold  a  mine  as  agent  was  afterwards  made  superintendent  by  the  purchaser  and 
secured  a  modification  of  the  contract  will  not  prevent  the  recovery  of  commis- 
sions.*^ That  a  lessee  of  convict  labor  releases  a  sublessee  from  a  contract  made 
for  him  by  an  authorized  agent,  and  accepts  a  contract  at  a  sum  which  gives  the 
agent  no  commission  under  his  contract,  will  not  prevent  recovery  of  the  agreed 
commission.*^  Where  a  contract  with  a  broker  for  the  sale  of  cattle  allowed  to  him 
all  he  should  receive  above  a  certain  price,  he  cannot  recover  commissions,  though 
he  secured  a  purchaser,  where  the  owner  took  up  the  negotiations  and  sold  the  cat- 
tle to  the  purchaser  at  a  reduced  price.** 

Effect  of  fraud  or  had  faith. — A  broker  who  had  an  interest  in  the  contract  of 
sale,  in  order  to  recover  commissions,  must  show  that  he  acted  in  good  faith.**  A 
broker  employed  to  sell  lands,  at  a  fixed  price  and  under  a  certain  condition,  who 
sells  under  like  terms  to  a  purchaser  without  informing  his  employers  cannot  re- 
cover commissions  from  them.*''  Brokers  acting  for  a  guardian  cannot  recover  com- 
missions, where  it  appears  that  one  of  them  was  guilty  of  bad  faith  in  attempting 
to  lower  the  price  of  the  property  at  the  sale  secured  by  the  order  of  court  in  par- 
tition proceedings.*"  \^^iere  an  agent  undertook  to  sell  land  for  a  certain  price, 
any  amount  above  that  to  be  his  commission  and  he  induced  his  employer  to  agree 
to  sell  for  a  lower  price  without  disclosing  the  fact  that  he  might  obtain  more  and 
then  sold  for  a  price  much  above  the  first  agreed  price,  the  employer  was  entitled 
to  recover  the  amount  of  the  reduction  from  the  agent.*''  Where  a  broker  se- 
cured a  purchaser  for  lands  and  immediately  telegraphed  and  wrote  to  the  owner 
concerning  such  purchaser,  who  also  sent  a  message  to  the  owner  though  he  inter- 
cepted it  before  it  was  received,  there  was  no  negligence  on  the  part  of  the  broker 
to  notify  the  owner  of  the  sale  so  as  to  forfeit  his  right  to  commissions  though  the 
land  had  been  sold,  before  the  notice  was  received,  to  another  purchaser.*® 

Acting  for  both  parties. — Acting  for  the  other  party  without  loiowledge  of  his 
principal  will  destroy  the  broker's  right  to  commission,*^  and  the  principal  may 


38.  Raeder  v.  Butler,  19  Pa.  Super.  Ct. 
604. 

39.  Blair  v.  Slosson.  27  Tex.  Civ.  App. 
403. 

40.  Gregory  v.  Bonney,  135  Cal.  589,  67 
Pac.    1038. 

41.  Mattes   v.    Engel,    15    S.    D.    330. 

43.  The  agent  was  to  have  all  excess  over 
a  certain  price  per  convict  as  commission — 
Bush   V.   Mattox,    116  Ga.   42. 

43.  Frey  v.  Klar  (Tex.  Civ.  App.)  69  S. 
W.   211. 


44.  Buck    V.    Hogeboom    (Neb.)    90    N.    W. 
635. 

45.  Linderman  v.  McKenna,   20   Pa.   Super. 
Ct.    409. 

46.  DeArmit   v.   Milnor,    20    Pa.    Super.   Ct. 
3G9. 

47.  Ballinger    v.    Wilson     (N.    J.    Eq.)    63 
Atl.   488. 

48.  Scottish-American  Mortg.  Co.  v.  Davl3 
(Tex.   Civ.  App.)    72   S.  W.   217. 

49.  Linderman  v.  McKenna,    20  Pa.  Super. 
Ct.    409. 


^  4 


COMPENSATION    AND    L,iKN. 


371 


show  that,  though  the  sale  took  place  as  alleged,  the  broker,  while  acting  for  him 
and  without  his  consent,  acted  for  the  other  party  and  received  commissions  for 
such  services;^"  but  if  the  agent  informed  both  parties  that  he  would  charge  them 
commissions  to  be  paid  equally  by  them,  to  which  both  agreed,  both  are  liable. ^^  If 
the  broker  was  not  intrusted  with  discretion  as  to  terms  of  sale,  an  arrangement  be- 
iween  him  and  the  purchaser  regarding  compensation  will  not  prevent  recovery  of 
commissions  from  the  owner.°^  A  broker  acting  for  one  party  cannot  show,  in  an 
action  for  compensation  from  the  other,  that  there  was  a  general  custom  in  acting 
for  both  parties  for  brokers  to  charge  commissions  of  each.^^  A  real  estate  broker 
carrying  on  negotiations  for  a  lease  in  the  name  of  the  tenant  cannot  claim  com- 
missions from  the  landlord.^*  A  broker  who  was  not  an  intermediary  to  bring  the 
parties  together,  but  who  took  a  contract  from  the  owner  to  himself,  refusing  to 
disclose  the  purchaser  and  receiving  a  commission  from  the  latter,  neither  of  the 
parties  knowing  that  the  other  was  charged  a  commission,  cannot  recover  a  com- 
mission from  the  owner."'  Where  a  broker  in  charge  of  the  property  of  two  owners 
tried  to  effect  an  exchange  with  the  knowledge  of  one  but  not  of  the  other  that  he 
was  representing  both  parties,  their  acts  in  completing  the  contract,  after  the  other 
had  repudiated  the  agency  on  notice  of  the  double  representation,  amounted  to  a 
ratification  of  the  agent's  acts  so  as  to  render  the  one  liable  for  commissions  who 
contracted  with  knowledge  of  the  double  agency."® 

Accrual  and  amount  of  commissions. — The  right  to  commission  accrues  when 
an  acceptable  contract  is  completed  by  the  principal."^  Where  a  broker's  contract 
cali'id  for  payment  of  commissions  for  the  sale  of  land  out  of  the  purchase  money 
as  paid,  the  whole  commissions  became  due  on  confirmation  of  a  foreclosure  sale, 
under  the  purchase  money  mortgage,  at  which  the  vendor  bid  in  the  property  for 
the  full  unpaid  balance  and  costs."®  Where  a  land  agent  induced  an  owner  to  fix 
a  net  price  and  on  the  representation  of  the  sale  as  to  a  third  person,  he  cannot  pur- 
chase so  as  to  realize  a  greater  profit  than  a  reasonable  commission."®  An  agree- 
ment for  commissions  in  a  certain  amount,  to  cover  fees,  attorney's  charges,  and 
expenses,  cannot  be  ground  for  a  judgment  for  the  full  amount,  where  performance 
was  prevented  by  reason  of  the  owner's  defective  title.*'"  $113,500  was  not  an  ex- 
cessive commission  in  selling  a  ferry  for  $4,500,000.^^  A  contract  between  an 
owner  and  real  estate  brokers  whom  he  owed  for  services,  recorded  in  the  office 
of  the  recorder  of  deeds,  by  which  he  agrees  to  give  them  exclusive  control  of  a  sale 
of  lands  from  the  proceeds  of  which  they  were  to  be  paid,  gives  the  brokers  a  lien 
on  the  proceeds,  and  where  the  owner  reserved  the  right  to  fix  the  price  but  aft- 
erwards refused  to  comply  and  executed  mortgages  on  the  property,  the  debt  be- 
came due  and  the  lien  attached.®^ 

Actions  for  compensation.^^ — A  broker  may  sue  a  purchaser  who  has  failed  to 
carry  out  his  contract  with  the  vendor  thereby  destroying  the  right  to  commissions. 


50.     Wolff    V.    Denbosky    (N.    Y.)    86    Misc. 
Rep.   643. 

ni.     Lamb  v.  Baxter,  130  N.  C.  67. 

52.  Sale    of   ferry — Gracie    v.    Stevens,    171 
N.   Y.    658. 

53.  Dartt   v.    Sonnesyn,    86   Minn.    55. 

54.  Callaway    v.    Equitable    Trust    Co.,    67 
N.  J.  Law,  44. 

55.  Horwitz  v.  Pepper,  128  Mich.  688. 
Casady   v.    Carraher    (Iowa)    93   N.    W. 


56, 

386. 

57, 
416. 

.ns, 

5». 


Brady  v.   Poster    (N.   Y.)    72   App.   Div. 

Crane  v.   Eddy,   191   111.   645. 
Merriam    v.    Johnson,     86    Minn.     61. 


60.  Gatllng  V.  Central  Spar  Verein  (N. 
Y.)    67   App.   Div.    50. 

61.  Gracie  v.   Stevens,    171   N.   Y.   658. 

63.     Tinsley   v.    Durfey,    99    111.   App.    239. 

63.  Sufficiency  of  complaint  by  real  es- 
tate broker  for  commissions  (Adams  v. 
McLaug-hlln  [Ind.]  64  N.  E.  462);  of  amend- 
ed petition  in  an  action  for  commissions  for 
the  sale  of  land  its  effect  as  changing-  the 
cause  of  action  so  as  to  constitute  a  depart- 
ure— Stewart  v.  Van  Home,  91  Mo.  App.  647. 
Sufficiency  of  evidence  in  action  for  com- 
missions (Kratt  V.  Hopkins  [N.  Y.]  77  App. 
Div.  634;  Benedict  v.  Pell  [N.  Y.]  70  App. 
Div,     40;     Monk    v.     Parker,     180    Mass.     246; 


372 


BROKERS. 


§   4 


tLough  the  broker  agreed  to  look  to  the  vendor  for  commissions.**  Where  one 
desiring  to  purchase  realty  employs  an  agent  to  secure  it  and  afterward  employs 
another  without  the  knowledge  of  the  agent  who  makes  the  purchase  and  receives 
the  commission,  the  agent  has  no  remedy  against  the  third  person  to  recover  the 
conmiissions  but  his  remedy  is  against  his  employer.*'' 

The  declaration  in  an  action  for  commissions  must  allege  either  an  actual  sale 
or  that  plaintiff  secured  a  purchaser,  within  the  time  limited,  who  was  able  and 
willing  to  buy  on  the  terms  stated  and  that  the  sale  was  prevented  by  the  owner  ;•* 
and  in  an  action  for  commissions  on  a  loan,  the  complaint  must  show  that  the  bor- 
rower knew  that  a  lender  had  been  found  or  that  the  loan  was  actually  secured.*^ 
An  answer  in  an  action  to  recover  commissions  is  insufficient,  where  it  admits  the 
contract  and  the  services  of  the  agent,  but  attempts  to  show  that  the  latter  was 
guilty  of  fraud  in  persuading  the  owner  to  trade  for  other  property  of  less  value 
while  failing  to  show  that  such  property  was  of  less  value  than  the  land  or  stating 
facts  showing  the  fraud.®*  A  common  count  stating  that  a  broker  performed 
services  for  another  to  the  value  of  $3,000  is  sufficient  to  sustain  a  finding  that  an 
employer  agreed  to  pay  the  broker  the  usual  commission  of  one  per  cent  on  a  loan 
of  $300,000  and  that  this  was  the  reasonable  value  of  the  broker's  services.®*  A 
broker  suing  on  a  contract  for  services  will  not  be  denied  commissions  according  to 
the  facts  as  proved  because  his  petition  asks  for  a  particular  amount.''"  In  an  ac- 
tion for  commissions  for  the  sale  of  land,  the  owner  is  entitled  to  show  what  effect 
the  acts  of  other  agents  had  upon  the  sale  before  and  after  the  employment  of  the 
plaintiff.''^  In  an  action  to  recover  commissions  for  the  exchange  of  lands,  which 
defendant  should  convey  when  leave  was  obtained  by  the  court,  plaintiff  need  not 
show  that  such  leave  was  obtained,  that  the  owner  still  held  the  property,  and  that 


Rutherford  v.  Simpson  [Minn.]  92  N.  W. 
413);  In  action  to  recover  commissions  for 
securing-  a  loan  (Faulkner  v.  Cornell,  114 
N.  Y.  State  Rep.  526);  in  action  for  recovery 
of  commissions  for  securing  a  tenant  (Clark 
V.  Dayton,  87  Minn.  454);  in  action  for  com- 
missions for  sale  of  land  to  show  the  em- 
ployment and  that  the  agent  was  the  broker 
and  procured  the  sale  though  It  was  closed 
through  another  agent  (Hogan  v.  Slade  [Mo. 
App.]  71  S.  W.  1104);  of  evidence  of  ap- 
proval by  the  owner  of  a  contract  for  sale 
of  goods  made  by  his  agent  in  order  to  en- 
title the  latter  to  commissions  (Edward  H. 
Everett  Co.  v.  Cumberland  Glass  Mfg.  Co., 
112  Wis.  544);  in  action  for  commissions 
for  sale  of  land  to  warrant  a  finding  that 
the  agreement  between  the  parties  contem- 
plated a  finding  of  a  purchaser  by  the  broker 
rather  than  a  sale  (Rounds  v.  Alice,  116 
Iowa,  345);  in  action  for  commissions  to 
show'  that  the  broker  secured  a  purchaser 
ready  and  able  to  buy  on  terms  acceptable 
and  that  the  sale  failed  through  the  owner's 
fault  (Huntemer  v.  Arent  [S.  D.]  93  N.  W. 
653);  of  evidence  of  employment  of  agent 
to  secure  exchange  of  property  so  as  to  en- 
title him  to  commissions  (Barton  v.  Powers, 
182  Mass.  467);  of  evidence  to  show  that  the 
broker's  authority  ceased  before  sale  and 
that  his  efforts  did  not  produce  the  sale 
(Fairchlld  v.  Cunningham,  84  Minn.  521;  to 
show  that  a  broker  suing  for  commissions 
on  sale  of  land  was  the  efficient  cause  of 
the  acceptance  of  defendant's  offer  by  the 
prospective  purchaser  (Summers  v.  Carey 
[N  T.]  69  App.  Div.  428);  to  show  that  the 
broker's  employment  to  sell  continued  until 


completion  of  the  sale  (Diamond  v.  Wheeler. 
114  N.  T.  State  Rep.  416);  to  show  an  agree- 
ment to  pay  a  reasonable  commission  for 
services  (Hart  v.  Maloney,  114  N.  T.  State 
Rep.  293);  to  show  fraud  in  representations 
by  the  broker  so  as  to  warrant  the  pur- 
chaser in  refusing  to  buy  and  deprive  the 
broker  of  his  commissions  (Scottish-American 
Mortg.  Co.  v.  Davis  [Tex.  Civ.  App.]  72  S. 
W.  217);  of  evidence  to  carry  to  the  jury 
the  question  whether  the  plaintiff  broker 
had  induced  the  purchase  of  lands  so  as  to 
entitle  him  to  commissions  (Rounds  v.  Al- 
ice, 116  Iowa,  345);  to  carry  to  the  jury 
the  Issue  whether  an  owner  of  goods  pre- 
vented an  exchange  by  an  authorized  anient 
so  as  to  render  him  liable  for  the  agent's 
commissions  (Stauffer  v.  Linenthal.  29  Ind. 
App.  305);  of  evidence  to  warrant  directing 
a  verdict  for  the  owner  in  an  action  against 
him  for  commissions — McDermott  v.  Ma- 
honey  (Iowa)  93  N.  W.  499.  Sufficiency  of 
instructions  in  action  by  real  estate  broker 
for  commissions — Kesterson  v.  Cheuvront 
(Mo.  App.)   70  S.  W.  1091. 

64.  Livermore    v.    Crane,     26    Wash.     529, 
67   Pac.    221. 

65.  Adams    v.    Dleren,    92   Mo.    App.    129. 

66.  Sullivan    V.    Mllliken     (C.    0.    A.)     IIS 
Fed.    93. 

67.  McLaughlin     v.     Whiten     (N.     T.)     3T 
Misc.  Rep.  838. 

68.  Rabb   V.   Johnson,    28    Ind.   App.    665. 

69.  Williams    v.    Clowes     (Conn.)     62    Atl. 


820. 
70. 
71. 

Pac. 


Veatch    v.    Norman,    95   Mo.    App.    509. 
Smiley    v.     Bradley     (Colo.    App.)     70 
696. 


COMPENSATION    AND    L,1EN. 


373 


it  was  possible  for  him  to  complete  the  trade,  unless  there  was  bad  faith  or  fraud  on 
the  part  of  the  ownerJ^  Evidence  that  a  broker  procured  money  at  the  request  of 
another  and  on  his  promise  to  pay  commissions  is  not  a  variance  from  an  allega- 
tion that  the  broker  procured  a  loan  for  himJ^  On  an  allegation  of  •  performance 
of  a  contract  by  a  broker  for  a  loan  for  his  principal  to  be  secured  by  a  mort- 
gage on  his  property,  the  agent  cannot  prove  the  failure  to  complete  performance 
because  of  defects  in  the  principal's  title/* 

2'he  burden  of  proof  is  on  a  landowner  who  alleges,  in  defense  of  an  action 
for  commissions,  that,  after  he  made  a  sale,  the  broker  procured  a  sale  by  fraud/' 
Where  the  owner  of  lands  in  an  action  by  the  broker  for  commissions  bases  his 
defense  on  a  misrepresentation  of  the  land  by  the  broker  so  that  the  prospective 
purchaser  refused  to  buy,  he  must  show  in  what  way  the  land  varied  from  the 
broker's  description  so  it  may  be  determined  whether  or  not  the  variation  is  ma- 
terial/^ Where  the  broker  finds  a  purchaser  whose  offer  is  accepted  it  will  be 
presumed,  in  an  action  for  commissions,  that  the  latter  is  able  to  complete  the 
contract  and  the  burden  is  on  the  owner  to  show  the  contrary/^  The  buyer  of  a 
street  railway,  sold  by  a  promoter  for  the  owners,  may  testify  in  an  action  for 
commissions  by  the  promoter  as  to  the  truth  of  the  representations  made  to  him 
by  the  promoter  regarding  the  earning  capacity  of  the  road/**  Where  the  owner 
refused  to  complete  a  sale  to  a  purchaser  secured  by  the  broker,  the  purchaser 
may  testify  in  an  action  by  the  broker  for  commissions  that  when  he  was  intro- 
duced to  the  owner  he  was  ready  and  willing  to  buy  on  the  terms  fixed,  and  that 
Ee  so  stated  to  the  owner,  and  evidence  is  also  admissible  that  when  the  broker 
introduced  the  purchaser  to  the  owner  he  refused  to  sell,  and,  when  the  broker 
claimed  his  commissions,  stated  that  he  would  rather  pay  the  commissions  than 
lose  a  certain  price  per  acre  on  the  land/*  It  is  immaterial  in  an  action  for  com- 
missions on  a  sale  of  land  that  the  owner  had  other  agents  where  it  is  not  con- 
tended that  they  were  instrumental  in  the  sale.®"  Conversations  between  the 
broker  and  proposed  purchaser  in  the  absence  of  the  owner  of  lands  cannot  be 
introduced  in  an  action  by  the  broker  against  the  owner  for  commissions  on  the 
sale.^^  In  an  action  by  an  agent  for  commissions  for  securing  a  loan  on  realty, 
evidence  that  the  loan  had  been  twice  refused  on  account  of  defects  in  defend- 
ant's title,  and  that  lis  pendens  existed,  is  insufficient  to  show  a  defective  title, 
where  it  does  not  appear  that  they  constituted  a  cloud  on  the  title  when  the  loan 
was  refused.®^  Where  an  owner  being  sued  by  a  broker  for  commissions  intro- 
duced a  complaint  in  another  action  by  the  broker  against  the  purchaser  of  the 
lands  for  damages  for  refusing  to  carry  out  the  sale,  a  stipulation  made  by  the 
parties  to  that  action  filed  in  court  by  which  the  broker  acknowledged  the  receipt 
of  a  certain  amount  in  full  of  all  demands,  is  properly  admitted  in  evidence.^* 

Trial  and  instructions. — An  instruction  cannot  be  given  which  assumes  a  con- 
tract of  employment  when  that  issue  is  in  conflict  and  is  separately  submitted.** 
The  jury  in  an  action  for  commissions  for  the  sale  of  land  should  not  be  in- 


73.     Carnes  v.  Howard,   180   Mass.   569. 

73.  Williams    v.    Clowes     (Conn.)     52    Atl. 
«20. 

74.  Gatling'    v.    Central    Spar    Vereln     (N. 
T.)    67  App.  Div.   50. 

75.  Stem    v.    Whitney,    23    Ky.    Law    Rep. 
2179,    66    S.   W.   820. 

76.  Scottish-American  Mortg.  Co.  v.  Davis 
(Tex.    Civ.    App.)    72    S.   W.    217. 

77.  Stauffer    v.    Linenthal,     29    Ind.    App. 
505. 


78.  Alexander     v.     Wakefield     (Tex.     Civ. 
App.)    69    S.   W.    77. 

79.  McDermott   V.    Mahoney    (Iowa)    93   N. 
W.    499. 

80.  Rounds   v.    Alee.    116    Iowa.    345. 

81.  Rutherford   v.    Simpson    (Minn.)    92   N. 
W.    413. 

82.  Gatling    v.    Central    Spar    Vereln     (N. 
Y.)    67    App.    Div.    50. 

83.  Davies    v.    Thomas,    87    Minn.    301. 

S4.     Casady   v.    Carraher    (Iowa)    93   N.   W. 
386. 


374  BUILDING  CONTRACTS.  §    1 

gtructed  that  they  are  not  bound  by  any  rule  as  to  compensation,  since  the  rule 
in  the  absence  of  contract  is  the  usual  commission  in  such  cases  or  a  fair  com- 
pensation under  the  facts."  Where  the  evidence  as  to  the  employment  of  a  bro- 
ker is  conflicting  in  an  action  for  commissions,  an  instruction  that  he  may  re- 
cover, if  he  procured  the  sale,  is  erroneous  as  taking  the  question  of  employment 
from  the  jury.***  Where  the  parties  to  an  action  for  commissions  differed  as 
to  the  terms  of  the  contract,  its  terms  must  be  left  to  the  jury.®^  Where  the 
evidence  is  conflicting  upon  the  issue  whether  a  broker  had  the  exclusive  right  to 
the  sale  of  certain  land,  the  question  should  be  presented  to  the  jury;^^  and  on 
contradictory  testimony,  the  question  whether  there  was  a  sale  or  whether  the  agent 
acted  in  good  faith  is  for  the  jury.**  Where  the  evidence  appears  undisputed  that 
an  owner  agreed  to  the  price  at  which  an  agent  sold  different  tracts  of  land,  the 
jury  cannot  find  for  the  owner  as  to  any  of  the  tracts.'"  The  question  whether 
the  plaintiff  in  an  action  for  commissions  was  a  real  estate  broker  is  properly 
submitted  to  the  jury,  where  a  written  contract  is  produced  by  which  the  plain- 
tiff was  to  sell  lands  belonging  to  defendant  for  commissions.®^  Whether  the 
parties  to  a  sale  of  land  intended  that  a  memorandum,  specifying  the  terms  and 
executed  by  the  owner  alone,  should  be  a  contract  between  them  was  a  question 
of  fact  so  that  its  delivery  was  not  conclusive  as  entitling  the  broker  to  commis- 
sions as  for  a  completed  sale.®^  Whether  owners  of  property  had  so  acquiesced 
in  a  contract  by  a  broker  for  its  sale  as  will  preclude  their  setting  up  its  invalid- 
ity as  a  defense  to  an  action  for  commissions  is  a  question  for  the  jury.®'  Evi- 
dence that  a  broker  suing  for  commissions  secured  a  purchaser  and  that  the  landowner 
admitted  by  letter  that  a  sale  had  been  made  is  sufficient  to  send  the  completion 
of  the  contract  as  a  question  to  the  jury,®*  and  evidence  that  certain  brokers  were 
employed  by  the  owmers  to  sell  lands  on  certain  terms  and  that  they  signed  the 
agreement  of  sale  as  agents  of  the  ovmer  will  carry  the  question  of  employment 
to  the  jury,  though  the  owner  denies  such  employment.®^  Wliere  there  was  evi- 
dence to  show,  in  an  action  for  commissions  in  effecting  the  exchange  of  landsj 
that  defendant  promised  to  pay  a  compensation  beyond  the  agreed  commission  if 
he  found  the  exchange  satisfactory,  and  that  he  found  it  satisfactory,  the  issue 
is  properly  submitted  to  the  jury.®® 

BUILDING  AND  C0NSTBT7CTI0N  CONTRACTS. 


9  1.  Tbe  Contract,  Snfllclency  and  Inter- 
pretation.— Plans  and  Specifications;  Severa- 
bility;  Fraud. 

§  2.  Performance  of  Contract. — Deviation; 
Abandonment. 

S  3.     Modlfleation   of  Contract. 

§   4.      ChanKen  in   Plans  and  Specifications. 

§  5.      Extra   Work. 

§  6.  Delay  in  Performance. — Waiver;  Liq- 
uidated Damages. 

§  7.  Termination  or  Cancellation  of  Con- 
tract. 


§  8.  Completion  by  Owner  or  Third  Per- 
son. 

§  J).  Architects'  and  Other  Certificates  ol 
Performance. 

§   10.     Arbitration    of   Disputes. 

§   11.     Acceptance. 

§   12.      Payment. 

§  13.  Sub-Contracts. — Extra  Work;  With- 
holding of  Payments  to  Principal  Contract- 
or;  Default. 

§  14.  Remedies  and  Procedure. —  Recovery 
on     Quantum  Meruit;  Pleading;  Evidence. 


§  1.     The  contract,  sufficiency  and.  interpretation} — An  agreement  to  furnish 


8.^.  Hartman  v.  Warner  (Conn.)  52  Atl.  719. 

86.  Benedict  v.   Pell    (N.   T.)    70  App.   Div. 
40. 

87.  Merriam   v.   Johnson,    86   Minn.   61. 

88.  Black   v.   Snook    (Pa.)    53   Atl.    648. 

89.  McCaffrey    v.    Page,    20    Pa.    Super.    Ct. 
400. 

OO.  McLane   v.   Goode    (Tex.   Civ.   App.)    68 

S.   ^^.  707. 

91.  Raeder  v.  Butler.  19  Pa.   Super.   Ct.   604. 


92.  Rutherford   v.   Simpson    (Minn.)    92    N. 
W.   413. 

93.  Sale   of   ferry — Gracie   v.    Stevens,    171 
N.    Y.   658. 

•94.     Finch   v.    Guardian    Trust    Co.,    92    Mo. 
App.   263. 

95.  Dixon  v.   Daub,   17  Pa.   Super.   Ct.    168. 

96.  Blair    v.     Slosson,     27    Tex.    Civ.    App. 
403. 

1.     Facts  held  not  to  show  an  implied  con- 


§  1 


CONTRACT  AND    INTERPRETATION. 


375 


material  according  to  plans  and  specifications  is  in  the  nature  of  a  building  con- 
tract and  not  a  sale  on  inspection.^  Liability  on  a  building  contract  may  pass 
with  the  premises  on  which  the  building  is  to  be  erected.^  One  who  contracts  for 
work  to  be  placed  in  a  building  in  the  course  of  construction  by  another  may  be- 
come a  guarantor  of  the  performance  of  the  construction  necessary  before  the  work 
may  be  begun."* 

The  construction  of  the  contract  is  for  the  court  where  the  specifications  are 
not  contradictory  or  inconsistent.®  An  attached  writing  may  become  a  part  of  the 
contract  where  so  recognized  by  both  parties,*  Particular  terms  and  provisions 
construed  are  grouped  in  the  notes.'' 

Plans,  specifications,  and  detail  drawings  become  a  part  of  the  contract  on  an 
offer  to  furnish  material  in  accordance  therewith,®  but  the  contractor  is  not  bound 
by  contractual  provisions  in  the  specifications  not  embodied  in  the  contract.^ 


tract  by  a  subscriber  to  the  stock  of  a  cor- 
poration to  pay  contractors  for  work  per- 
formed in  the  erection  of  buildings  for  the 
corporation — Poulson  v.  De  Navarro,  102  N. 
Y.  St.  Rep.  177.  Evidence  held  sufficient  to 
show  inception  of  a  contract  to  plaster  build- 
ing's— Disken  v.  Herter,  73  App.  Div.  (N.  T.) 
453. 

2.  Agreement  by  a  lumber  dealer  to  fur- 
nish material  according  to  plans  and  specifi- 
cations requiring  all  material  to  be  thorough- 
ly kiln  dried,  smooth  and  straight — Utah 
Lumber   Co.    v.   James    (Utah)    71    Pac.    986. 

3.  On  transfer  of  the  premises,  if  the 
grantee  assumes  the  payment  of  claims  for 
materials,  he  becomes  the  principal  debtor, 
and  the  grantor  is  surety,  but  the  under- 
taking does  not  apply  to  a  claim  for  ma- 
terials for  which  the  grantor  is  not  liable — 
Hurd  V.  Wing,  76  App.  Div  (N.  Y.)    506. 

4.  A  person  contracting  for  marble  work 
to  be  placed  in  a  chapel  in  the  course  of 
erection  by  a  church  organization  becomes 
such  a  guarantor  where  the  contract  pro- 
vided that  the  owner  agreed  to  provide  all 
labor  and  material  not  included  in  the  con- 
tract In  such  manner  as  not  to  delay  the 
material  progress  of  the  work  and  in  event 
of  failure  so  to  do  thereby  causing  loss  to 
the  contractor  agreed  that  he  would  reim- 
burse him  for  such  loss — Pontano  v.  Rob- 
bins,    18    App.    D.    C.    402. 

5.  Question  of  whether  the  erection  of 
smoke,  heat  and  ventilating  flues  and  stacks 
was  included — Keefer  v.  Sunbury  School 
Dist.,  203  Pa.  334.  A  "complete  carpenter's 
rig  of  good  quality"  and  an  "outfit  of  drill- 
ing tools  and  lines"  are  to  be  construed 
by  the  jury  with  the  aid  of  expert  evidence 
— Glenn  v.  Strickland,  21  Pa.  Super.  Ct.  88. 

6.  Attached  to  a  written  contract  to  in- 
stall an  automatic  sprinkling  system,  w^as 
a  writing,  "We  propose  to  furnish  and  in- 
stall a  complete  wet  system  for  the  sum  of 
$1,056,  additional  for  tank  riser,  $75.  We 
commence  on  the  inside  of  the  building  at 
the  foot  of  each  riser  and  at  the  bottom  of 
the  tank  to  be  furnished  by  you.  additional 
for  outside  work  to  connect  sprinkler  with 
and  leave  plugs  for  extension  post  and  indi- 
cator valves  to  control  risers,  for  the  sum 
of  $175."  Held  that  where  the  owner  had 
a  copy  of  the  contract  with  the  writing  at- 
tached and  allowed  the  erection  of  the  tank, 
riser    and    outside    work    without    objection. 


accepting  It  when  completed,  that  the  con- 
tractor was  entitled  to  recover  the  sum  of 
$250  therefor,  in  addition  to  the  contract 
price  of  $1,056— General  Fire  Extinguisher 
Co.  v.  Mooresville  Cotton  Mills  (N.  C.)  43  S. 
E.  942.  A  clause  attached  to  a  contract 
to  furnish  an  automatic  sprinkler  and  alarm 
system  signed  only  by  the  partv  agreeing 
to  furnish  the  system  "it  is  further  under- 
stood that  if  you  desire  us  to  maintain  the 
alarm  system  connection  to  our  station  long- 
er than  one  year  will  do  so  at  an  annual 
expense  to  you  of  $35  per  year,"  does  not 
impose  an  obligation  to  furnish  the  connec- 
tion at  the  price  named  during  the  pleasure 
of  the  other  party — Baylies  v.  Automatic  Fire 
Alarm    Co.,    70   App.   Div.    (N.   Y.)    557. 

7-  Capacity  of  a  stated  "nominal  horse 
power"  in  the  absence  of  a  technical  mean- 
ing as  to  such  terms  in  the  trade,  will  be 
regarded  as  meaning  a  rated  rather  than  an 
actually  developed  power  in  use — Heine  Safe- 
ty Boiler  Co.  v.  Francis  Bros.  &  Jellett  (C 
C.  A.)  117  Fed.  235.  Soap  stone  is  "rock" 
within  the  meaning  of  a  well-drilling  con- 
tract— Okey  V.  Movers  (Iowa)  91  N.  W.  771. 
The  removal  of  quick-sand  flowing  in  from 
the  sides  of  an  excavation  may  be  recov- 
ered for  at  the  agreed  price  per  cubic  yard 
if  it  is  necessarily  removable.  (The  contract 
stated  that  it  would  be  nece.ssary  to  pile  the 
excavations,  since  there  was  a  stratum  of 
sand  which  it  would  be  necessary  to  keep 
out  to  prevent  the  bank  from  caving) — Car- 
roll Contracting  Co.  v.  Gilsonite  R.  &  P. 
Co.  (Mo.  App.)  71  S.  W.  1119.  Specifications 
for  a  contract  of  papering,  requiring,  "Walls 
to  be  washed  or  sized  with  good,  strong  glue 
as  necessary  to  Insure  that  paper  will  remain 
fast  to  the  wall,"  do  not  bind  the  contractor 
to  so  treat  the  walls  that  the  paper  will  re- 
main fast  but  only  to  adopt  the  method 
m.ost  likely  to  cause  it  to  do  so — Independent 
School  Dist.  V.  Swearngin  (Iowa)  94  N.  W. 
206.  A  general  clause  In  specifications  re- 
quiring work  to  be  made  water  tight,  im- 
poses an  obligation  to  make  the  work  water 
tight  only  so  far  as  possible  under  the  plans 
f»Tid  specifications — Dwyer  v.  New  York,  77 
App.    Div.    (N.    Y.)    224. 

8.  Utah  Lumber  Co.  v.  James  (Utah)  71 
Pac.    986. 

9.  A  contractor  may  recover  for  extra 
work,  though  not  agreed  to  in  writing  as 
specified  by  the  specifications — Reichert  v. 
Brown,    38  Misc.   Rep.    (N.   Y.)    782. 


376 


BUILDING  CONTRACTS. 


^  2 


Entire  and  severable  contracts. — WTiere  in  a  contract  foi  the  erection  of  a  nran- 
ber  of  houses,  each  building  is  separately  dealt  with  as  to  subject-matter,  consider- 
ation, and  remedy,  the  contract  is  divisible,^"  but  it  is  not  sufficient  merely  to  re- 
quire specified  sums  for  each  building."  An  agreement  to  perform  certain  dif- 
ferent branches  of  work  for  a  lump  sum  amounts  to  an  entire  contract." 

Fraud,  misrepresentation,  or  mistake. — A  mistake  in  the  estimates,  for  which 
the  party  is  not  responsible,  does  not  invalidate  an  offer  accepted  by  him.''  One 
panv  may  rely  on  representations  of  the  other  as  to  matters  with  which  tlie  first 
is  unfamiliar  and  of  which  the  second  has  knowledge,"  but  if  the  whole  environ- 
ment and  physical  conditions  surrounding  the  work  are  apparent,  the  contractor 
cannot  claim  that  he  has  been  misled."  The  fact  that  borings  have  been  relied  on 
by  the  contractor  in  making  his  bid  does  not  entitle  him  to  recover  for  extra  work 
caused  by  obstructions.'® 

§  2.  Performance  of  contract." — In  the  absence  of  a  guaranty,  complianco 
with  plans  and  specifications  together  with  performance  when  directed  is  all  that  can 
be  required  of  a  contractor,"  and  he  is  not  responsible  for  unsatisfactory  results." 
If  there  are  no  particular  specifications,  he  is  bound  to  select  proper  materials  and 
perform  the  work  in  a  proper  manner.^"  Performance  as  called  for  in  the  con- 
tract cannot  be  abandoned,  and  a  more  feasible  plan  adopted  by  the  contractor." 


10.  Contract  to  erect  86  houses,  fixing  a 
separate  price  of  work  on  each  house,  pay- 
ments to  be  made  as  enumerated  In  the  esti- 
mate. On  payment  of  the  contract  price  of 
a  house,  a  release  of  liens  thereon  was  to 
be  given,  and  In  default  of  payment  a  lien 
might  be  filed  for  the  amount  unpaid,  but 
only  on  the  houses  not  paid  for — Nolt  v. 
Crow,   22   Pa.   Super.   Ct.   113. 

11.  A  contract  for  the  erection  of  four 
buildings  for  a  specified  price,  seventy-five 
per  cent,  to  be  paid  during  progress  of  the 
work,  twenty-five  per  cent,  a  stated  time 
jifter  completion.  Is  not  made  a  severable  con- 
tract by  a  provision  that  the  entire  sum  shall 
be  segregated  and  divided  in  payments  so 
as  to  require  specified  sums  for  each  of  the 
buildings — Wehrung  v.  Denham  (Or.)  71  Pac. 
133. 

12.  Agreement  to  decorate  walls,  place 
the  wood-work,  and  furnish  a  room — Pit- 
cairn  V.  Philip  Hiss  Co.,  113  Fed.  492,  51  C. 
C.   A.   323. 

13.  Jilistake  of  $10,000  in  the  estimate  for 
the  erection  of  a  building  occasioned  by  an 
error  in  addition — Brown  v.  Levy  (Tex.  Civ. 
App.)    69    S.    W.    255. 

14.  Representations  leading  to  a  contract 
of  dredging  as  to  the  thickness  of  rock  to  be 
removed,  made  after  soundings  had  been 
taken,  and  a  chart  made  with  which  the 
party  making  the  statements  was  familiar. 
are  as  to  matters  of  fact,  though  actual 
measurements  were  not  stated  to  have  been 
made — Hingston  v.  Smith,  114  Fed.  294,  52 
C.    C.    A.    206. 

ir>.  Contract  to  dredge  a  channel,  alleged 
misrepresentations  as  to  locality  and  depth 
of  water — Rowland  Lumber  Co.  v.  Ross,  4 
Va.   Sup.  Ct.  R.  191,   40   S.   E.   922. 

16.  On  a  contract  for  the  sinking  of  piers 
a  profile  showing  borings  In  the  vicinity 
of  each  pier  marked  with  the  character  and 
thickness  of  each  stratum  does  not  guaranty 
that  the  same  conditions  exist  where  the 
piers  are  to  be  sunk  but  only  that  they  rep- 
resent with  substantial  accuracy  what  was 
found  where  the  borings  were  made--Grofon 


B.  &  M.  Co.  V.  Alabama  &  V.  R.  Co.,  80  Miss. 
162. 

17.  A  contract  for  boilers  of  140  nominal 
horse  power  not  complied  with  by  boilers 
rated  at  the  shop  in  accordance  with  the 
"sual  rules  as  130  horse  power — Heine  Safety 
Boiler  Co.  v.  Francis  Bros.  &  Jellett  (C.  C. 
A.)  117  Fed.  235.  "^''here  an  original  bid  for 
construction  of  a  building  from  stone,  brick 
and  terra  cotta  Is  based  on  specifications 
for  iron  beams  and  girders  over  window 
and  door  openings,  such  beams  may  be  re- 
quired on  the  construction  of  the  same  build- 
ing from  marble  under  an  alternate  bid 
though  they  were  not  usually  required  In 
marble  buildings  w^here  the  specifications 
for  the  alternate  bid  require  the  work  to  be 
done  in  compliance  with  drawings  to  be 
furnished  including  all  necessary  changes 
on  account  of  the  substituted  construction — 
:\Iiles  V.  United  States,   113   Fed.   1011. 

18.  Contractor  is  not  liable  for  the  fact 
that  mortar  is  killed  by  freezing — Schliess 
V.  Grand  Rapids  (Mich.)  9  Detroit  Leg.  N. 
192,    90    N.   W.    700. 

19.  Cannon  v.  Hunt  (Ga.)  42  S.  E.  734. 
Where  specifications  for  an  elevator  called 
for  a  ten  horse  power  motor,  the  contractor 
may  recover,  though  the  motor  was  not  pow- 
erful enough — Morse,  etc.,  Co.  v.  Puffer,  182 
Mass.  423.  In  assumpsit  by  a  contractor  to 
recover  the  value  of  certain  concrete  placed 
in  a  foundation  according  to  the  terms  of  a 
building  contract,  it  cannot  be  shown  that 
such  concrete  is  without  value  as  a  founda- 
tion— Board  of  Com'rs  v.  Gibson.  158  Ind. 
471.  A  contractor  may  recover  the  costs 
of  reconstruction  on  failure  to  produce  the 
desired  result,  where  he  has  followed  the 
specifications.  (After  the  specifications  was 
the  clause  "generally  the  work  is  all  to  be 
performed  In  a  thorough  and  mechanical 
manner  and  rendered  thoroughly  water  tight, 
all  to  be  subject  to  the  approval  of  the 
architect) — Dwyer  v.  New  York,  77  App.  Div 
(N.    Y.)    224. 

20.  Cannon  v.  Hunt   (Ga.)    42   S.  E.   734. 

21.  On  agreement  to  drill  a  well,  -the  con- 


§  3 


MODIFICATIONS. 


377 


Deviation  from  specifications. — The  contractor  is  liable  for  failure  to  follow 
plans  and  specifications,"  so  the  owner  may  have  damages  for  deviation  from  the 
material  specified.^^  An  engineer  in  charge  of  government  work  cannot  consent 
to  deviations  from  the  plans  and  specifications.^* 

Substantial  performance  may  warrant  a  recovery  after  deduction  for  trifling 
omissions,^''  though  not  if  the  contract  requires  strict  execution.^*  The  question 
of  substantial  performance  is  for  the  jury.^'^ 

Liahility  for  failure  to  perform. — To  charge  the  contractor,  there  must  be  a 
substantial  failure  in  performance.^^  Eeturn  of  the  contract  price  does  not  dis- 
charge liability  for  breach  of  the  contract.  ^^ 

Damage  to  finished  work. — Woodwork  placed  in  a  building  may  be  recovered 
for  though  injured  by  the  falling  of  the  roof  through  the  owner's  negligence.^" 

Abandonment. — The  contractor  is  not  entitled  to  abandon  the  difficult  portion 
of  the  work  and  perform  the  less  difficult,'^  or  to  abandon  so  as  to  place  himself 
in  a  better  position,  and  the  other  party  in  a  worse  position,  than  were  the  con- 
tract fully  executed.''^ 

§  3.  Modification  of  contract. — A  new  contract  to  take  less  than  the  price 
previously  specified  or  to  do  the  work  at  the  contractor's  risk  must  be  on  a  new 
consideration.^^  Settlement  of  a  dispute  may  be  a  sufficient  consideration.'*  On 
substitution  of  a  contract  in  which  a  price  is  not  specified,  the  price  provided  by 
the  original  contract  cannot  be  recovered.^' 


tractors  are  not  entitled  to  drill  a  second 
hole  though  without  charge  for  a  first  which 
they  abandoned  by  reason  "of  a  drill  rod 
having  been  broken  and  lodged  therein.  The 
contractors  were  bound  to  prosecute  their 
work  with  reasonable  diligence  and  care,  and 
if  that  was  not  done  were  not  entitled  to 
drill  a  second  hole  if  water  was  not  found 
in  the  first,  the  other  party  having  agreed 
to  board  the  employees  and  furnish  the 
teams  necessary  for  the  work — Peacock  v. 
Gleason   (Iowa)    90  N.  W.   610. 

22.  Sarrazin  v.  Adams  (La.,'.  34  So.  301. 
Recovery  cannot  be  had  In  the  absence  of  a 
waiver  of  non-performance  where  the  con- 
tractOT^  has  substituted  inferior  workman- 
ship and  materials  in  place  of  those  required 
and  effected  saving  to  himself  and  damage 
to  the  owner  by  making  changes  and  omis- 
sions— D'Amato  v.  Gentile.  100  N.  Y.  State 
Rep.  832. 

33.  It  is  immaterial  that  the  materials 
used  be  equally  as  good  as  those  specified — 
Cannon  v.  Hunt  (Ga.)  42  S.  E.  734.  It  is  an 
open  violation  of  the  contract  to  fail  to  fol- 
low the  plans  and  specifications,  using  poor 
material,  leaving  tlie  floors  so  far  from  level 
that  the  ftirniture  leaned  forward  or  to  the 
side,  so  that  the  roof  leaked  and  the  doors 
and  windows  could  not  be  closed,  and  if  tlie 
contract  was  for  tlie  payment  of  $2,800,  $1,100 
may  be  reserved  by  the  owner  to  place  tlie 
hotise  in  repair — Sarrazin  v.  Adams  (La.)  34 
So.    301. 

24.  If  a  government  contract  provide  that 
the  plans  and  specifications  cannot  be  chan- 
ged except  on  written  order  of  the  bureau 
of  yards  and  docks,  the  consent  to  devia- 
tions from  the  specifications  by  the  engineer 
in  charge  with  power  to  reject  materials 
and  work  unsuitable  or  variant  from  the 
plans  and  specifications  does  not  operate  as 
a  waiver  or  estoppel,  relieving  the  contract- 
ors from  liability  to  the  government  for 
deviations — United  States  v.  "Walsh,  115  Fed. 
697.    52    C.    C.    A.    419. 


25.  Perry  v.  Levenson,  82  App.  Div.  (N. 
Y.)    94. 

26.  When  the  trial  court  found  that  there 
had  been  a  failure  to  the  extent  of  one- 
seventh  of  the  value  of  the  contract  price  It 
was  error  to  find  substantial  performance 
and  render  judgment  for  the  contract  price 
less  one-seventh — Mitchell  v.  Williams,  114 
N.  Y.  St.  Rep.  864. 

27.  Evidence  of  defects  In  woodwork 
necessitating  an  expenditure  of  $500  on  a 
contract  to  do  woodwork  and  decorate  the 
walls  of  a  room  for  $5200 — Pitcairn  v.  Philip 
Hiss  Co.,   113  Fed.   492,   51   C.   C.  A.   323. 

28.  Contract  to  procure  and  supervise  the 
erection  of  a  house — Anderson  v.  Harper,  30 
Wash.  378,  70  Pac.  965. 

29.  Provisions  for  the  removal  of  ma- 
chinery in  event  It  should  prove  unsatisfac- 
tory, on  return  of  the  money  to  be  paid 
therefor,  do  not  limit  the  builder's  liability 
on  failure  to  perform  to  the  return  of  the 
money  received — Harrison  v.  Murray  Iron 
Works  Co.,   96  Mo.  App.  348. 

30.  Teakle  v.  Moore  (Mich.)  9  Detroit 
Leg.  N.   371.   91  N.  W.   636. 

31.  Sewer  contract  provided  for  weekly 
allowances  by  the  engineer  in  charge.  Held, 
that  the  contractor  could  not  suspend  work 
in  loose  soil  where  he  had  encountered  diffi- 
culties and  recover  for  subsequent  excava- 
tion in  rock  ground — National  Contracting 
Co.   V.  Com.    (Mass.)    66  N.   E.   639. 

33.  A  contractor  for  a  sewer  system  for  a 
city,  the  city  not  being  at  fault,  cannot 
abandon  the  work  at  a  stage  selected  for  his 
benefit — Brown  v.  Baton   Rouge,   109  La.    967. 

33.  Contract  for  drilling  a  well — Wend- 
ling  V.   Snyder   (Ind.  App.)    65  N.   E.   1041. 

34.  Where  a  plumber  refused  to  replace 
portions  of  the  work  which  had  been  stolen 
unless  paid  therefor  and  the  owners  told  him 
to  continue  the  work  and  they  would  pay 
him — Innes  v.  Ryan,  37  Misc.  Rep.  (N  Y  ) 
806.  ■ 

3.'.     A    contract    to    construct    an    electrlo 


378 


BUILDING  CONTRACTS. 


§    4 


§  4.  Changes  in  plans  and  specifications. — The  fact  that  detailed  drawings 
are  to  be  furnished  at  a  later  date  does  not  authorize  a  change  in  the  plans.^"  A 
requirement  of  a  written  order  of  tlie  architect  for  alteration  does  not  necessitate 
such  an  order  on  a  mere  change  in  tlie  parties  doing  the  work."  A  provision  that 
the  engineer  in  charge  may  make  alterations  if  demanded  by  emergencies  is  n,ot 
to  be  regarded  as  imposing  an  obligation  io  make  alterations.^*  If  the  engineer 
has  full  authority  to  order  necessary  changes,  the  contractor  must  make  them, 
though  the  action  of  the  engineer  is  not  reasonable." 

Provisions  that  alterations  and  additions  to  a  contract  must  be  settled  and 
agreed  on  in  writing  may  be  waived  by  either  party  so  far  as  they  are  for  his 

benefit." 

§  5.  Extra  worlc. — Eecovery  for  extra  work  cannot  be  had  in  the  absence 
of  an  express  or  implied  consent  thereto.*^  A  promise  to  pay  a  claim  for  extra 
work  clearly  provided  for  in  the  specifications  is  without  consideration.*^  A  con- 
tract for  additional  compensation  precludes  a  claim  that  the  work  was  within  the 
intendment  of  the  original  contract.*'  The  contractor  cannot  charge  for  extra 
work  rendered  necessary  by  his  faulty  performance.** 

A  provision,  in  general  specifications  for  bidding,  that  the  price  of  extra  work 
must  be  agreed  on  in  writing  before  it  is  commenced,  does  not  apply  to  extra  work 
done  under  a  branch  of  the  contract,  in  the  specifications  for  which  there  is  no 
?uch  provision.  Where  extra  work  is  to  be  allowed  only  if  done  pursuant  to  the 
order  of  the  architect  and  notice  of  claims  therefor  is  required  to  be  given  him, 
the  order  only  is  essential  to  recovery.*'  Claim  of  compensation  for  changes  need 
not  be  made  at  the  time  they  are  ordered.*® 

Where  work  done  outside  the  original  contract  is  accepted,  it  should  be  paid 
for  at  the  rate  originallv  contemplated,*''  and  recovery  is  not  limited  to  the  actual 
cost  of  labor  and  materials;*®  but  where  the  main  contract   fixes  an  aggregate 


light  plant  with  a  three  wire  system  for  a 
stated  price,  substitution  of  a  two  wire  sys- 
tem— Davis  V.  Bingham,  39  Misc.  Rep.  (N. 
Y  )    299. 

3G.  A  provision  for  the  furnishing  of  de- 
tailed drawings  in  fviture,  and  that  anything 
omitted  in  the  specifications  and  shown  on 
the  drawings,  or  vice  versa,  was  to  be  done 
without  extra  charge,  does  not  authorize  a 
change  in  the  plans — Dwyer  v.  New  York,  77 
App.   Div.    (N.   Y.)    224. 

37.  Drumheller  v.  American  Surety  Co., 
30  "Wash.   530.   71   Pac.   25. 

38.  Such  provision  in  a  sewer  contract 
held  to  be  for  the  benefit  of  the  common- 
wealth only — National  Contracting  Co.  v. 
Com.    (Mass.)    66  N.   E.   639. 

39.  Under  a  provision  that  the  engineer 
in  charge  might  direct  necessary  modifica- 
tions of  a  sewer  contract  and  order  addi- 
tional supports  at  the  contractor's  expense 
if  proper  ones  were  not  furnished,  the  engi- 
neer may  order  oak  ribs  to  be  used  instead 
of  pine  ones  though  the  contract  called  for 
the  use  of  spruce  lumber  at  such  points  and 
of  such  descriptions  as  the  engineer  might 
(jirect — National  Contracting  Co.  v.  Com. 
(Mass.)    66  N.  E.   639. 

40.  The  question  of  waiver  of  a  require- 
ment of  a  description  In  writing  of  altera- 
tions  in  a  building  contract    is  for  the  jury 

Copeland  v.  Hewett.  96  Me.  525.      Obtaining 

of  a  written  order  from  the  architect  as  re- 
quired by  the  contract  for  deviation  from 
the    specifications     may    be    waived    by    the 


presence  and  consent  of  the  owner  at  the 
time  of  deviation — Perry  v.  Levenson,  82  App. 
Div.  (N.  Y.)  94.  Oral  directions  for  altera- 
tions acted  on  by  the  contractor  operate  as 
a  waiver  of  a  requirement  In  the  contract 
of  written  evidence  to  charge  the  owner— 
Crowley  v.  United  States  F.  &  G.  Co.,  29 
Wash.   268,   69  Pac.   784. 

41.  Niemeyer  v.  Woods,  110  N.  Y.  St.  Rep. 
563. 

42.  Under  specifications  requiring  founda- 
tion to  go  deeper  than  shown  on  the  draw- 
ings if  necessary  to  reach  natural  undisturb- 
ed earth  work  done  under  the  level  shown 
by  the  drawings  cannot  be  charged  for  as 
extra  work — Wear  v.  Schmelzer,  92  Mo.  App. 
314. 

43.  Contract  between  county  commission- 
ers and  a  court  house  building  contractor — 
Board  of  Com'rs  v.  Gibson,  158  Ind.  471. 

44.  Columns  to  support  a  balcony — Van- 
derhoof  v.   Shell    (Or.)    72  Pac.  126. 

45.  Extra  carpenter  work — Teakle  v. 
Moore  (Mich.)  9  Detroit  Leg.  N.  371,  91  N.  W. 
636. 

46.  The  contract  provided  for  extra  com- 
pensation In  such  case — Essex  v.  Murray 
(Tex.  Civ.  App.)   68  S.   W.  736. 

47.  Contract  for  lowering  the  bed  of  a 
tail  race — Malloy  &  Boggs  v.  Lincoln  Cotton 
Mills    (N.   C.)    43   S.   E.   951. 

48.  A  reasonable  profit  may  be  recovered 
— Venable  Const.  Co.  v.  United  States,  114 
Fed.  763. 


§  6 


DELAYS   IN   PERFORMANCE. 


379 


price,  the  price  paid  thereunder  for  similar  labor  and  material  cannot  be  re- 
garded as  fixing  the  price  paid  for  extra  work  which  must  be  measured  by  its  cash 
market  value.*® 

§  6.  Delay  in  performance. — A  provision  in  a  building  contract  intending  \o 
prevent  forfeiture  for  delay  should  be  upheld  if  possible.''"  Where  no  time  is  speci- 
fied, the  work  must  be  begun  or  prosecuted  within  a  reasonable  time/^  and  the 
contractor  is  bound  to  complete  the  work  within  a  reasonable  time  only.^^ 

Delay  occasioned  by  a  strik'e  will  not  prevent  recovery  on  the  contract  where 
the  owner  has  taken  no  steps  at  the  time  to  complete  the  work  or  terminate  the 
contract  under  a  right  conferred  on  him  therein,  and  there  being  no  time  limit 
fixed  in  the  contract."*' 

A  stoppage  of  work  occasioned  by  a  delay  of  the  architect  in  passing  on  com- 
pleted work  which  would  be  covered  up  by  further  work  is  not  a  breach  of  the 
contract."** 

The  owner  cannot  defend  on  the  ground  of  delay  caused  by  his  fault."*'  Failure 
to  make  payments  as  required  prevents  the  enforcement  of  a  penalty  for  failure  in 
timely  completion  of  the  work.^^  Demand  by  the  contractor  for  allowance  for  de- 
lay occasioned  by  the  owner  need  not  be  made  in  writing  of  the  architect,  where  the 
architect  assured  the  contractor  that  he  was  entitled  to  the  amount  of  time  de- 
manded.®^ 

Waiver  of  delay  or  extension  of  time. — Where  the  owner  has  gone  into  pos- 
session while  the  contractors  are  at  work,  she  cannot  recover  for  a  delay  in  de- 
livery.^^  Completion  at  the  time  specified  may  be  waived  by  allowing  the  con- 
tractor to  continue  without  objection  and  assisting  him  in  completion,'^  and 
where  the  contractor  undertakes  work  relying  on  representations  of  the  other 
party  that  it  would  be  less  difficult  than  it  afterward  proved  to  be,  and  the  work 
is  accepted  and  used,  though  more  time  was  required  than  contemplated,  there  is 
an  implied  extension  of  time  of  completion.®" 

Liquidated  damages. — In  computing  the  time  of  delay  for  which  the  owner  is 
entitled  to  damages,  deduction  should  be  made  of  the  time  for  which  the  con- 


49.  Board  of  Com'rs  v.  Gibson,  158  Ind. 
471. 

50.  King  V.  United   States,    37   Ct.   CI.    428. 

51.  Andrae  v.  Watson  (Tex.  Civ.  App.)  73 
S.  W.  991. 

52.  Contract  for  tlie  construction  of  an 
annex  to  a  building- — Krause  v.  Board  of 
School   Trustees    (Ind.   App.)    66   N.   E.   1010. 

53.  Three  weeks'  delay — Happel  v.  Maras- 
co, 37  Misc.  Rep.    (N.  Y.)    314. 

Strike  as  excuse  for  uon-performance. 
(Note.)  The  contractor  is  not  excused  be- 
cause of  a  strike  of  laborers  affecting  the 
building  operations  (Hammon,  Cont.  p.  827; 
Budgett  V.  Bennington  [Eng.]  1  Q.  B.  35),  but 
it  is  common  to  insert  a  "strike  clause"  m 
such  contracts  by  which  the  contractor  Is 
relieved  in  case  of  a  strike.  When  the  time 
of  performance  is  not  specified,  the  perform- 
ance, though  delayed  by  a  strike,  may  still 
be  regarded  as  within  a  reasonable  time  un- 
der the  circumstances  (Hammon,  Cont.  p. 
828;  Pittsburg,  etc.,  R.  Co.  v.  Hallowell,  65 
Ind.  188;  Geismer  v.  Lake  Shore  R.  Co.,  102 
N.  Y.  563.) 

54.  A  petition  setting  up  the  facts  attend- 
ant on  such  a  stoppage  held  not  demurrable 
as  showing  a  breach  of  the  contract  by  plain- 
tiff— McClellan  v.  McLemore  (Tex.  Civ.  App.) 
70  S.  W.   224. 


55.  Ocorr,  etc.,  Co.  v.  Little  Falls,  77  App. 
Div.  (N.  Y.)  592.  The  delay  was  caused  by 
the  owner's  violation  of  the  building  de- 
partment's requirements  and  his  desire  that 
improvements  on  a  seventh  story  should  be 
finished  before  the  sixth,  and  the  owner  had 
made  no  serious  complaint  about  delay  and 
also  the  season  had  been  unusually  wet — 
Perry  v.   Levenson.    82    App.    Div.    (N.   Y.)    94. 

56.  Harris'  Assifjnee  v.  Gardiner,  24  Ky. 
Law  Rep.  103,  68  S.  W.   8. 

57.  The  architect  was  also  the  owner's 
superintendent — Vanderhoof  v.  Shell  (Or.)  7J 
Pac.  126. 

58.  Sarrazin  v.   Adams   (La.)    34  So.   301. 

59.  On  subletting  a  grading  contract,  the 
principal  contractor  reserved  the  right  to 
place  an  additional  force  on  the  work  if  he 
was  of  the  opinion  that  enough  men  were  not 
being  employed  to  complete  it  within  the 
specified  time,  and  deduct  the  cost  from  the 
contract  price.  Held,  that  the  action  of  the 
principal  contractor  In  placing  on  his  own 
men  and  teams  after  the  specified  time  was  a 
waiver — McArthur  v.  Whitney,   202  111.   527. 

60.  Representations  leading  to  a  contract 
to  lower  the  bed  of  a  tail  race — Malloy  & 
Boggs  v.  Lincoln  Cotton  Mills  (N.  C.)  43  S. 
B.  95L 


380 


BUILDING  CONTRACTS. 


§  7 


tractor  was  delayed  by  the  owner,"  and  delay  occasioned  by  unavoidable  contin- 
gencies where  the  contract  is  made  subject  thereto.*^  Sundays  are  not  to  be  de- 
ducted." 

§  7.  Termination  or  cancellation  of  contract.^* — Destruction  of  a  building 
terminates  a  contract  for  the  construction  of  an  annex  thereto.®'* 

If  the  contract  makes  an  architect's  cef-tificate  a  condition  precedent  to  the 
right  to  terminate  the  contract,  it  must  be  strictly  complied  with."' 

Provisions  in  a  government  contract  authorizing  the  engineer  in  charge  to 
annul  it  if  the  work  be  not  faithfully  prosecuted,  and  authorizing  him  to  employ 
such  additional  labor  as  may  seem  essential  to  secure  the  completion  of  the  work, 

are  distinct.®^ 

The  owner  is  not  the  sole  judge  of  proper  performance,  though  the  contract 
authorize  its  cancellation  in  case  the  work  is  not  carried  on  rapidly  enough  or  in 
accord  with  the  specifications."  A  parol  agreement  to  increase  weekly  payments 
to  n  subcontractor  in  case  more  men  are  employed  prevents  the  cancellation  of  the 
contract  in  case  the  amount  subsequently  paid  is  not  enough  to  pay  the  extra  men, 
and  they  strike  for  a  single  day." 

§  8.  Completion  by  owner  or  third  person.'"^ — Provisions  for  completion  on 
default  of  the  contractor  are  not  regarded  as  creating  forfeitures  and  to  be  con- 
strued strictly  against  the  owner.'^^  The  owner  is  not  bound  to  exercise  the  privi- 
leo-e  to  complete  the  work.'"'  He  may,  without  waiving  his  rights,  make  such 
changes  as  are  usually  made  in  good  faith  during  construction."  Where  it  is 
provided  that  in  completion  the  owner  may  use  materials  brought  on  the  ground 


«1.  Delay  occasioned  by  a  change  In  plas- 
tering from  mortar  to  adamant — Vanderhoof 
V.  Shell   (Or.)   72  Pac.  126. 

fi2.  Pressed  Steel  Car  Co.  v.  Eastern  R. 
Co.   (C.  C.  A.)  121  Fed.  609. 

63.     Vanderhoof  v.  Shell  (Or.)   72  Pac.  126. 

«4.  Where  a  sewer  contractor  refuses  to 
uncover  pipe  which  the  chief  engineer  be- 
lieves has  been  placed  on  the  wrong  grade, 
the  engineer  is  entitled  to  have  it  done  by 
other  parties,  and  such  Is  not  an  ousting  of 
the  contractor  from  the  work,  the  contract 
providing  that  the  engineer's  orders  are  to 
be  obeyed — Brown  v.  Baton  Rouge,  109  La. 
967. 

65.  Contract  held  to  contain  an  implied 
condition  that  the  whole  building  should 
continue  to  exist  until  full  performance  of 
the  work  thereunder — Krause  v.  Board  of 
School  Trustees  (Ind.  App.)   66  N.  E.  1010. 

66.  If  the  contract  requires  a  certificate 
from  the  architect  that  the  contractor  has 
not  properly  performed  and  that  his  neglect 
Is  sufficient  ground  for  a  termination  of  the 
employment,  a  certificate  that  the  work  is 
not  being  properly  performed  and  that  the 
owner  may  take  such  action  as  he  deems 
best  is  not  sufficient — "White  v.  Mitchell 
(Ind.  App.)  65  N.  E.  1061.  A  private  let- 
ter written  to  the  owner  and  not  communi- 
cated to  the  contractor  will  not  justify  a 
rescission — Wilson  v.  Borden  (N.  J.  Err.  & 
App.)  54  Atl.  815.  A  provision  that  after 
three  days'  notice  the  owner,  in  the  case 
of  default  of  the  contractor  In  furnishing 
labor  or  material,  might  supply  It,  and  if 
the  architect  certify  that  It  was  sufficient 
ground  could  terminate  the  employment  of 
the  contractor,  requires  three  days'  notice 
of    Intention    to    terminate    the    contract    as 


well  as  of  Intention  to  furnish  material  and 
labor — McClellan  v.  McLemore  (Tex.  Civ. 
App.)  70  S.  W.  224.  If  in  a  government  con- 
tract It  Is  provided  that  the  contract  may 
be  annulled  by  notice  in  writing  from  the 
engineer  in  charge,  it  Is  questionable  wheth- 
er a  notice  from  the  engineer's  superior 
officers  will  effect  the  annulment — King  v. 
United    States,    37   Ct.    CI.    428.. 

67.  Exercising  the  right  to  employ  addi- 
tional labor  in  such  a  way  as  to  Interfere 
with  the  contractor's  completion  of  the 
work,  excludes  the  right  to  annul  the  con- 
tract— King  V.   United  States.   37   Ct.   CI.    428. 

68.  Cancellation  by  him  is  not  justified 
if  the  work  in  fact  is  being  performed  as 
called  for  in  the  contract — Hoyle  v.  Stell- 
wagen,    28    Ind.   App.    681. 

69.  Though  the  contract  authorized  can- 
cellation if  the  sub-contractor  got  in  ar- 
rears with  his  portion  of  the  work — O'Dwyer 
V.   Smith.    38  Misc.   Rep.    (N.  Y.)    136. 

70.  Where  the  contract  is  abandoned 
after  the  owners  have  refused  to  pay  an  in- 
stallment by  reason  of  failure  to  substan- 
tially complete  a  building,  the  owners  may 
complete  it  and  hold  the  contractors  for 
the  necessary  expense — Hansen  v.  Hackman, 
37    Misc.    Rep.    (N.    Y.)    290. 

71.  Though  it  is  provided  that  in  finish- 
ing the  building  the  owner  may  use  ma- 
terials placed  on  the  ground  by  the  con- 
tractor and  account  to  the  contractor  for  the 
difference  between  the  cost  of  completion 
and  the  unpaid  contract  price — Duplan  Silk 
Co.  V.   Spencer    (C.   C.   A.)    115   Fed.    689. 

72.  Failure  to  do  so  does  not  constitute 
a  waiver  of  the  contractor's  default — Mitch- 
ell V.  Williams,  114   N.   Y.  St.   Rep.   864. 

73.  Delray  Lumber  Co.  v.  Keohane  (Mich.) 
9    Detroit   Leg.    N.    494,    92   N.   W.    489. 


§  10 


ARBITRATION    OF   DISPUTES. 


381 


by  the  contractor,  the  owner  is  regarded  as  having  a  qualified  right  of  property  in 
such  materials/*  though  the  mere  fact  that  the  contractor  has  gotten  together  ma- 
terial for  the  purpose  of  the  contract  does  not  give  the  other  party  any  property 
therein  or  entitle  him  to  enjoin  the  removal  of  the  same.'^*  If  the  owner  takes 
over  the  working  plant  of  the  contractor  without  right,  he  is  liable  for  the  reason- 
able value  of  its  useJ* 

Where  the  owner  completes  the  building  on  abandonment  by  the  contractor 
under  a  right  reserved,  the  contractor  is  entitled  to  any  balance  of  the  contract 
price  over  the  cost  of  completion.''^ 

§  9.  Architects'  and  other  certificates  of  performance. — An  architect's  cer- 
tificate for  payment  is  not  issued  until  delivered  to  the  contractor.''*  It  is  con- 
clusive in  the  absence  of  fraud,  the  burden  of  proof  of  which  is  on  the  owner.''® 

Where  an  architect's  certificate  is  refused  in  bad  faith,  recovery  may  be  had 
without  it,*°  and  the  requirement  of  a  final  certificate  may  be  waived.®^  Absence 
of  certificate  will  not  prevent  a  recovery  where  no  reason  appears  why  the  archi- 
tects have  refused  it,^^  or  where  the  owners  enjoy  every  advantage  of  the  con- 
tractor's work  which  they  would  obtain  were  a  stipulated  certificate  granted,*'  sa 
failure  to  procure  a  certificate  required  will  not  defeat  assumpsit.** 

Giving  of  certificates  for  partial  payments  does  not  preclude  the  pleading  of 
defects  as  against  an  action  to  recover  a  final  payment  though  the  defects  were  in 
work  done  before  the  last  instalment  certificate  was  given.*' 

§  10.  Arbitration  of  disputes.^^ — Where  not  otherwise  expressed  or  necessarily 
to  be  implied  from  the  terms  of  a  contract,  an  agreement  for  the  submission  of 


74.  They  are  reg-arded  as  being  delivered 
Into  the  possession  of  the  owner  in  such  a 
manner  as  to  become  surety  for  the  ad- 
vances made  by  him  on  the  contract — Dup- 
lan  Silk  Co.  v.  Spencer  (C.  C.  A.)  115  Fed. 
689. 

75.  Material  for  a  street  railroad — Cam- 
eron V.  Orleans  &  J.  R.  Co.,  108  La.  83; 
Orleans  &  J.  R.  Co.  v.  International  Const. 
Co.,   108  La.    82. 

76.  A  railroad  construction  company  took 
over  the  working  plant  of  a  firm  of  contract- 
ors under  the  protection  of  an  injunction, 
claiming  to  have  the  right  to  do  so  under  the 
terms  of  the  contract  because  of  the  con- 
tractor's default,  but  It  was  afterward  ad- 
judged not  to  have  such  a  right — Cham- 
plain  Const.  Co.  V.  O'Brien,  117  Fed.  271, 
788. 

77.  The  w^ork  being  regarded  as  done  un- 
der the  contract — White  v.  Livingston,  69 
App.    Dlv.    (N.    Y.)    361. 

78.  The  architect  made  the'  certificate, 
sent  It  to  the  owner  who  objected  to  an 
allowance  for  certain  work  and  the  archi- 
tect thereupon  retained  it — Wear  v.  Schmel- 
zer,  92  Mo.  App.  314. 

79.  Schultze  v.  Goodsteln,  115  N.  T.  St. 
Rep.  946. 

80.  Refusal  based  on  failure  to  perform 
within  the  specified  time — Perry  v.  Leven- 
son,    82   App.   Dlv.    (N.    Y.)    94. 

81.  It  was  provided  that  the  architect 
should  be  the  superintendent  of  the  build- 
ing, should  be  an  arbiter  between  the  par- 
ties, and  could  reject  any  work  not  com- 
plying with  the  specifications,  and  during 
the  progress  of  the  work,  he  inspected  and 
approved  it  and  made  directions  for  cor- 
rections which  were  complied  with,  and 
the  owner,  architect  and  contractor  agreed 
to    the    acceptance    of    the    building    subject 


to  certain  alterations — Vanderhoof  v.  Shell 
(Or.)  72  Pac.  126.  Where  the  owner  has 
declared  a  forfeiture  of  the  contract  and 
begun  completion  of  the  building,  provisions 
as  to  the  obtaining  of  an  architect's  certifi- 
cate need  not  be  complied  with  before  an. 
action  on  the  contract — Ocorr,  etc.,  Co.  v. 
Little  Falls,   77  App.   Div.   (N.  Y.)    592. 

82.  Contractors  had  made  a  substantial 
performance — Happel  v.  Marasco,  37  Misc. 
Rep.    (N.   Y.)    314. 

83.  Contract  to  equip  a  factory  with  a 
sprinkling  system,  price  to  be  payable  when 
a  certificate  should  issue  by  a  board  of  fire 
underwriters,  and  the  board,  though  certify- 
ing that  the  contractor  had  fully  performed, 
refused  to  grant  the  certificate  because  the 
water  supply  at  the  factory  was  insuflicient 
and  the  factory  was  beyond  the  reach  of 
an  organized  fire  department — New  York  & 
N.  H.  Sprinli;ler  Co.  v.  Andrews,  173  N.  Y.   25. 

84.  Certificate  as  to  the  value  of  extra 
work  in  an  action  therefor — Board  of  Com'rs 
v.  Gibson,  158  Ind.  471. 

85.  The  final  payment  was  to  be  made. 
15  days  after  the  building  was  completed, 
delivered  and  accepted  on  certificate  of  the 
architect,  "such  certificate  to  be  final  and 
conclusive  that  the  work  done  warrp.nted 
said  payments" — Blanchard  v.  Sonnefield  (C. 
C.    A.)    116    Fed.    257. 

86.  A  stoppage  of  work  occasioned  by  the 
failure  of  the  architect  to  act  with  regard 
to  the  acceptance  of  work  already  done, 
and  by  the  need  to  avoid  covering  up  such 
work  before  settlement,  presents  a  proper 
subject  for  arbitration  within  a  clause  of 
a  contract  providing  for  the  arbitration  of 
disputes  between  the  contractors  and  the 
architect — McClellan  v.  McLemore  (Tex.  Civ. 
App.)  70  S.  W.  224.  Provisions  for  arbi- 
tration   as   to    the   value   of   changes    or   for 


5b2 


BUILDING    CONTRACTS. 


§n 


claims  to  arbitration  is  collateral  and  a  breach  cannot  be  pleaded  in  bar  to  an 
action  on  the  contract  itself."  Wliere  a  method  of  adjustment  for  extra  work  is 
provided  in  the  contract,  the  contractor  is  not  justified  in  abandoning  without  re- 
sort to  such  method.««  A  stipulation  that  findings  of  the  engineers  in  charge  as 
to  the  fulfillment  of  the  contract  shall  be  conclusive  is  not  an  attempted  ouster  of 
the  courts  of  jurisdiction."  Where  it  is  provided  that  architects  designated  by  a 
firm  name  shall  be  arbiters,  a  member  of  the  firm  whose  name  does  not  appear  in 
the  firm  name  may  act."* 

A  provision  for  arbitration  as  to  extra  work  cannot  be  availed  of  by  the  owner 
where  he  has  made  no  demand  or  offer  of  arbitration  and  has  not  taken  steps  to 
select  arbitrators,'^  and  an  agreement  or  arbitration  is  not  a  condition  precedent  to 
a  recovery  if  there  is  no  question  as  to  the  reasonableness  of  the  charges.^^  pro- 
visions as  to  the  finality  of  the  decision  of  an  arbitrator  do  not  apply  when  the 
contract  is  rescinded.®' 

§  11.  Acceptance.^*' — The  fact  that  a  tenant  is  allowed  to  enter  and  use  a 
building  does  not  amount  to  an  acceptance.®''  Entry  after  the  stipulated  time  for 
completion  is  not  a  waiver  of  defects  though  ascertainable  by  the  exercise  of  ordi- 
nary care.®^  Use  of  building  material  without  discovery  of  latent  defects  does  not 
prevent  a  subsequent  assertion  of  breach  of  the  contract."  The  owner's  supervision 
does  not  prevent  refusal  to  accept  finished  work,  the  contractor  having  made  no 
attempt  to  remedy  defects  then  pointed  out."'  An  agreement  that  the  em- 
ployer shall  determine  all  questions,  as  to  performance  of  work  done  after  plans 
and  specifications,  does  not  entitle  him  to  reject  the  work  arbitrarily.""     Eecovery 


damage  occasioned  by  the  contractor's  de- 
laying the  progress  of  the  work,  do  not  re- 
quire the  submission  to  arbitrators  of  dam- 
ages for  failure  to  complete  at  the  speci- 
fied time,  where  liquidated  damages  for 
each  day  of  such  delay  are  provided — Drum- 
heller  V.  American  Surety  Co.,  30  Wash.  530. 
71  Pac.  25.  Under  a  clause  providing  for 
arbitration  of  matters  In  dispute,  is  includ- 
ed a  dispute  as  to  whether  a  recovery  can- 
not be  had  for  the  entire  amount  of  stone 
specified,  though  the  whole  amount  was  not 
delivered  because  rendered  unnecessary  by 
reason  of  rock  foundation  being  found  soon- 
er than  anticipated — Wymard  v.  Deeds,  21 
Pa.   Super.   Ct.   332. 

87.  A  provision  for  the  arbitration  of 
disputes  concerning  allowances  for  alter- 
ations does  not  make  an  arbitration  a  con- 
dition precedent  to  an  action  based  on  a 
distinct  provision  for  the  reimbursement  of 
the  contractor  for  delays,  though  the  latter 
provision  states  that  the  amount  of  the 
contractor's  loss  through  delay  shall  be 
fixed  by  the  architects  or  by  arbitration  as 
provided  In  the  first  provision — Fontano  v. 
Robbins,   18  App.  D.  C.   402. 

S8.  A  sewer  contract  agreed  that  In  case 
of  cavings  of  banks  and  errors  in  grade, 
the  chief  engineer  of  the  city  should  ad- 
Just  the  claims  and  that  expenditures  and 
losses  should  be  charged  as  provided  for 
In  the  contract — Brown  v.  Baton  Rouge,  109 
La.    967. 

89.  Held  to  be  within  the  rule  allowing 
stipulations  that  actions  shall  not  be  brought 
until  performance  of  certain  acts  by  a 
third  person — National  Contracting  Co.  v. 
Hudson  River  Water  Power  Co.,  170  N.  Y. 
439. 


90.  Such  person  was  the  architect  In 
charge  and  recognized  as  such  by  both  par- 
ties— Wymard  v.  Deeds,  21  Pa.  Super.  Ct. 
332. 

91.  Evidence  held  Insufl^cient  to  show  a 
demand  of  arbitration  by  defendant  and  re- 
fusal by  the  plaintiff — Van  Note  v.  Cook,  55 
App.   Div.    (N.    T.)    55. 

92.  Essex  V.  Murray  (Tex.  Civ.  App.)  68 
S.   W.   736. 

93.  Action  for  damages  for  the  loss  of  a 
contract  and  not  for  work  done  thereunder 
in  reference  to  a  railroad  contract  making 
the  decision  of  the  engineer  final  as  to  dis- 
putes and  waiving  the  right  to  sue  at  law 
^Dobbling  v.  York  Springs  R.  Co.,  203  Pa. 
628. 

94.  An  unequivocal  acceptance  results 
from  delivery  of  keys  to  the  owner  and  his 
taking  possession  subject  to  an  agreed  list 
of  alterations  subsequently  performed  by 
the  contractor  to  the  satisfaction  of  the  ar- 
chitect— Vanderhoof  v.  Shell  (Or.)  72  Pac. 
126. 

95.  Mitchell  V.  Williams,  114  N.  Y.  St.  Rep. 
864. 

96.  Cannon  v.  Hunt  (Ga.)  42  S.  E.  734. 

97.  Utah  Lumber  Co.  v.  James  (Utah)  71 
Pac.    986. 

9S.  The  contract  provided  that  the  work 
should  be  done  to  the  owner's  satisfaction 
in  a  perfect  and  workmanlike  manner  and 
should  be  accepted  by  him — Mitchell  v.  Wil- 
liams, 114  N.  Y.  St.  Rep.  864. 

99.  The  issue  of  substantial  performance 
may  be  raised  In  an  action  for  the  contract 
price — Schliess  v.  Grand  Rapids  (Mich.)  9 
Detroit    Leg.    N.    192,    90   N.    W.    700. 


§  13 


SUBCONTRACTS. 


383 


may  be  had  where  the  owner  has  agreed  to  accept  a  certain  sum  for  a  minor  de- 
fault in  performance  and  agreed  on  the  balance  due.^ 

Acceptance  and  acquiescence  of  the  engineer  in  charge,  or  final  acceptance  by 
an  inspecting  board,  are  not  conclusive  in  the  case  of  government  contracts.^ 

§  12.  Payment. — Where  a  contract  provides  that  a  stated  sum  shall  be  paid 
within  a  specified  time  after  a  section  of  the  work  is  completed,  a  payment  not  in 
excess  of  such  sum  cannot  be  refused  on  the  ground  that  with  the  payments  al- 
ready made  it  will  amount  to  more  than  the  sum  for  which  the  work  on  that  par- 
ticular section  was  to  be  done  under  the  contract.'  A  provision  for  the  retention 
of  money  to  indemnify  the  owner  against  any  lien  chargeable  to  the  subcontractor 
entitles  the  retention  of  the  amount  of  a  judgment  on  a  subcontractor's  lien,* 
but  a  lien  for  material  furnished  by  the  owner  does  not  come  within  a  requirement 
that  final  payments  shall  not  be  made  until  the  owner  is  satisfied  that  no  liens 
have  been  placed  on  the  property.® 

An  admitted  liability  may  furnish  a  good  consideration  for  an  agreement  to 
allow  a  deduction  of  an  ofE-set  for  damages.' 

§  13.  Subcontracts. — ^The  contractor  may  be  liable  for  a  breach  of  a  sub- 
contract though  the  owners  may  have  a  good  defense  against  the  subcontractor.'^ 
A  subcontractor  may,  by  acting  on  his  contract  after  knowledge  of  the  insolvency 
of  the  general  contractor,  be  prevented  from  disaffirming  his  agreement.* 

A  contract  providing  for  payment  of  a  subcontractor  on  his  furnishing  to  the 
original  contractor  releases  of  all  liens  and  claims  which  might  arise  under  the  sub- 
contract is  complied  with  by  a  showing  that  no  mechanic's  liens  can  attach.' 

Extra  work  hy  subcontractor. — The  fact  that  a  subcontractor  is  required  by 
the  contract  to  omit  specified  work,  or  do  extra  work  at  the  direction  of  the  owner 
or  architects,  does  not  prevent  the  subcontractor  from  doing  extra  work  at  the  di- 
rection of  the  principal  contractor.^''  A  promise  to  pay  a  subcontractor  after  he 
had  done  work  outside  his  contract  and  not  within  the  principal  contract  is  with- 
out consideration  on  the  part  of  the  contractors.^^ 


1.  Roussel  V.  Mathews,  62  App.  Div.  (N. 
Y.)    1. 

2.  The  government  after  payment  and 
acceptance  may  hold  contractors  liable  for 
defects  -where  the  final  test  was  made  un- 
der conditions  which  did  not  permit  struc- 
tural departures  from  the  specifications  to 
be  discovered,  and  acceptance  was  in  ig-nor- 
anoe  of  facts  which  would  have  occasioned 
a  refusal,  the  contract  requiring  that  speci- 
fications should  not  be  changed  except  on 
written  order  of  the  bureau  in  charge  and 
by  written  agreement — United  States  v. 
Walsh,    115    Fed.    697,   52   C.   C.   A.   419. 

3.  Contract  for  completion  of  electrical 
work  on  a  building  for  $725,  such  building 
being  erected  in  two  sections,  provided  that 
payment  for  labor  should  be  made  twice 
a  week  during  the  progress  of  the  work  and 
for  material  witliin  30  days  after  the  re- 
ceipt of  the  same,  and  that  as  there  was 
Immediate  need  of  the  first  section  $400 
should  be  due  within  10  days  from  the 
completion  of  the  electrical  work  therein. 
$301  was  paid  for  the  first  two  weeks'  work. 
Held,  that  refusal  of  a  payment  of  $78 
thirty  days  later,  of  which  $63  was  for 
labor,  was  not  justified  as  to  the  labor  by 
reason  of  the  fact  that  it  was  in  excess  of 
the  sum  for  which  plaintiff  was  to  do  the 
work  on  the  first  section — Mullin  v.  I^^angley, 
37   Misc.   Rep.    (N.   Y.)    789. 

4.  Wear  v.  Schmelzer,   92   Mo.   App.   314. 


5.  Vanderhoof  v.    Shell    (Or.)    72   Pac.    126. 

6.  Admission  of  liability  for  an  Injury  to 
a  heating  system  in  a  building  may  operate 
as  an  off-set  to  the  contractor's  action  for 
a  balance  due  for  work  on  the  building, 
though  the  injury  was  caused  by  negligence 
of  an  independent  contractor  employed  by 
plaintiff — McClure  v.  Lorain  County  Com'rs 
24  Ohio   Cir.   Ct.   R.   72. 

7.  Agreement  that  work  should  not  be 
sub-let  without  the  architect's  consent,  and 
that  all  materials  should  be  submitted  to 
him.  and  failure  by  the  subcontractor  to 
comply  with  such  requirement — Herry  v.  Be- 
noit   (Tex.  Civ.  App.)    70  S.  W.  359. 

8.  The  subcontractor  failed  to  repudiate, 
called  on  the  owner  for  aid  in  collecting  pur- 
chase money  and  filed  a  mechanic's  llen^ 
University  of  Virginia  v.  Snyder  (Va.)  42 
S.   E.    337. 

9.  Turner  v.  Wells,  67  N.  J.  Law,  572. 

10.  On  a  contract  to  set  arch  blocks  on 
all  floors  except  the  ground  floor  in  accord- 
ance with  specifications,  the  sub-contractor 
may  recover  as  for  extra  work  for  setting 
arch  blocks  in  a  basement  floor  on  the 
street  level  of  one  frontage  which  was  fre- 
quently referred  to  in  the  specifications  as 
the  basement  or  ground  floor — Isaacs  v.  Daw- 
son,   70    App.    Div.    (N.    Y.)    232. 

11.  Majory  v.  Schubert,  115  N.  Y.  St  Rep 
703. 


384 


BUILDING    CONTRACTS. 


§   14 


Withholding  of  payments  for  benefit  of  subcontractor}^ — Action  may  be 
brought  on  an  agreement  to  retain  from  the  contractor  money  for  the  protection 
of  a  materialman  before  completion  of  the  contract/^  but  on  a  contract  to  retain 
pa}anents  to  be  made  a  principal  contractor  and  pay  them,  at  the  time  of  pay- 
ments to  a  materialman,  the  materialman  is  not  entitled  to  payment  though  he 
has  furnished  all  the  material  if  the  principal  contract  has  not  progressed  far 
enough  to  entitle  the  principal  contractor  to  payment.^* 

Rights  on  default  by  subcontractor. — Where  a  contract  provides  that,  on  de- 
fault in  the  furnishing  of  material,  other  material  may  be  secured  after  five  days' 
notice,  the  reasonableness  of  the  action  in  terminating  the  contract  is  not  involved ; 
the  contractors  have  the  right  to  secure  substantially  the  same  material,  and  may 
purchase  it  from  stock  at  greater  than  mill  prices,  if  to  have  it  manufactured  would 
necessitate  considerable  delay.^"^  A  materialman  agreeing  to  furnish  inspectors 
cannot  complain  that  he  is  not  notified  of  their  appointment.^' 

§  14.  Bonds. — Eequirement  that  bond  shall  be  given  to  secure  performance 
of  the  contract  does  not  require  the  owner  to  accept  a  bond  requiring  him  to  per- 
form additional  acts  for  the  protection  of  his  sureties.^^  Agreement  to  give  a 
bond  will  not  prevent  recovery  if  it  is  found  by  the  referee  that  the  objection  that 
the  bond  was  not  given  was  a  mere  subterfuge  to  avoid  payment.^*  Laborers  and 
materialmen  are  proper  parties  to  a  suit  to  enforce  a  bond  exacted  of  a  contractor 
for  the  payment  of  materials  and  wages.*' 

§  15.  Remedies  and  procedure. — An  action  may  be  brought  for  breach  of 
contract  though  the  owner  has  retained  an  amount  stipulated  as  demurrage.^"  The 
owner's  remedy  on  completion  after  abandonment  by  the  contractor  is  an  action 
for  damages  for  breach  of  contract.^*  Where  the  contractor  has  refused  to  accept 
a  small  amount  due  on  the  contract,  tendered  by  the  owner,  he  cannot  urge  de- 
fault in  regard  thereto  as  a  defense  to  an  action  for  breach.^^  A  bill  may  be  a 
sufficient  demand.^^ 

Recovery  in  general  assumpsit  or  on  quantum  meruit. — Where  nothing  remains 
to  be  done  under  a  special  contract  except  payment  of  the  amount  due,  recovery 


12.  An  agrreement  by  a  mortgagee  to 
withhold  moneys  coming  Into  his  hands  for 
the  owner  for  the  purpose  of  paying  them  to 
a  subcontractor,  in  case  he  will  continue 
to  supply  materials,  renders  the  mortgagee 
liable  to  the  subcontractor  with  whom  the 
agreement  was  made  in  case  he  pays  such 
moneys  over  to  the  owner — Prata  v.  Green, 
70  App.  Div.  (N.  Y.)  224.  An  agreement 
to  furnish  materials  to  a  contractor  Is  a 
sufficient  consideration  for  a  promise  by 
a  third  person  to  retain  enough  of  the 
money  due  on  the  contract  to  pay  the  per- 
son furnishing  the  materials — Roussel  v. 
Mathews,    62   App.    Dlv.    (N.   Y.)    1. 

13.  Roussel  V.  Mathews,  62  App.  Div.  (N. 
Y.)   1. 

14.  Young   V.    Smith,    202    Pa,    329. 

15.  In  this  case  30  days  had  elapsed  after 
the  time  limited  for  performance  before 
the  notice  called  for  was  given  and  manu- 
facture would  have  consumed  from  4  to  6 
months — Christopher,  etc.,  Co.  v.  Yeager,  202 
111.    486. 

16.  The  materialman  was  required  to  fur- 
nish shop  drawings  and  the  inspectors,  with- 
out whose  approval  no  work  could  be  done, 
were  appointed  as  soon  as  the  shop  draw- 
ings were  approved — Christopher,  etc.,  Co. 
V.   Yeager,   202  111.   486. 


17.  The  owner  need  not  accept  a  bond 
requiring  him  to  give  immediate  notice  in 
writing  to  the  surety  of  default  by  the 
principal  and  to  institute  any  suit  on  the 
bond  within  six  months  after  the  work  Is 
completed — Brown  v.  Levy  (Tex.  Civ.  App.) 
69    S.    W.    255. 

18.  Disken  v.  Herter,  73  App.  Div.  (N. 
Y.)    453. 

19.  Gastonia  v.  McEntee-Peterson  Engi- 
neering Co..   131   N.   C.   363. 

20.  Ramlose  v.  Dollman  (Mo.  App.)  73 
S.   W.   917. 

21.  Plaintiff  cannot  recover  the  contract 
price  and  cost  of  foundation  on  the  common 
counts  where  defendant  has  abandoned  a 
contract  to  erect  a  monument  on  a  founda- 
tion prepared  by  him,  and  plaintiff  has  fur- 
ni?;hed  the  foundation  and  erected  the  mon- 
ument— Wigent  V.  Marrs  (Mich.)  9  Detroit 
Leg.    N.    158.    90   N.    W.    423, 

22.  Ramlose  v.  Dollman  (Mo.  App.)  73 
S.   W.    917. 

23.  Presentation  of  a  bill  by  a  subcon- 
tractor to  a  contractor  on  the  contractor's 
rescission  of  his  contract,  followed  by  an 
admission  that  the  bill  was  correct  and  de- 
livery of  a  writing  stating  the  rescission  of 
the  contract  and  fixing  the  amount  due  the 
subcontractor,    shows    a    legal    demand    and 


8   iij 


KEMEDIES   AND   PROCEDURE. 


385 


may  be  had  on  a  common  count  for  work  and  labor.-*  Where  a  contractor,  with- 
out his  fault,  is  prevented  by  the  owner  from  completing,  he  may  recover  on  a 
quantum  meruit,-^  or  on  refusal  of  the  owner  to  pay  an  instalment  when  due  as 
required  by  the  contract,-®  or  on  termination  of  the  contract  by  inevitable  casualty 
before  full  performance,  if  payment  was  to  be  made  as  the  work  progressed. ^^  If 
work  done  under  an  express  contract  is  accepted  and  used,  recovery  may  be  h.id 
on  a  quantum  meruit  though  it  is  not  done  according  to  contract. ^^  Completion 
of  the  work  after  an  action  commenced  does  not  allow  a  recovery.^^  If  the  con- 
tra'ctor  rescinds  for  default  of  the  other  party,  he  may  only  recover  on  a  quantum 
meruit.^" 

\\Tiere  the  contractor  has  canceled  his  written  contract  against  the  will  of  z 
subcontractor,  the  subcontractor  may  sue  on  a  quantum  meruit  for  the  work  and 
labor  actually  done,  and  need  not  tender  the  contractor  what  has  already  been  paid.^' 

Pleading. — If  plaintiff  desire  to  disregard  an  invalid  portion  of  the  contract, 
the  petition  must  be  drawn  on  the  theory  that  the  contract  is  severable.'^  The 
complaint  must  show  performance,^^  though  performance  of  conditions  not  preced- 
ent to  demand  of  performance  of  the  other  party  need  not  be  pleaded.^*  Waive: 
of  provisions  of  the  contract  must  be  pleaded.^*  The  elements  of  damages  should 
be  alleged.^® 


refusal  to  pay  and  It  cannot  be  objected 
that  claimant  was  not  entitled  to  payment 
at  the  time  of  demand — South  End  Imp.  Co. 
V.  Harden    (N.  J.  Ch.)    52  Atl.   1127. 

a4.  On  an  express  contract  for  construc- 
tion of  a  sidewalk  recovery  after  abandon- 
ment cannot  be  had  on  a  quantum  meruit, 
unless  it  is  shown  that  the  work  rendered 
and  the  material  furnished  was  of  value  to 
and  accepted  by  defendant,  which  question 
is  for  the  jury — Roskilly  v.  Steigers,  96  Mo. 
App.  576.  Especially  where  the  contract 
only  fixes  a  maximum  price — Board  of  Com'rs 
V.  Gibson,  158  Ind.  471;  Zapel  v.  Ennis,  104 
111.   App.    175. 

25.  Day  v.  Eisele,  76  App.  Div.  (N.  Y.) 
304.  On  wrongful  prevention  of  completion, 
If  the  contractor  elect  to  treat  the  contract 
as  rescinded,  the  reasonable  value  of  the 
work  done  may  be  recovered,  if  there  Is 
no  provision  for  an  apportionment  of  com- 
pensation— George  M.  Newhall  Engineering 
Co.  V.  Daly  (Wis.)   93  N.  W.  12. 

26.  White  V.  Livingston,  69  App.  Div. 
(N.    Y.)    361. 

27.  Krause  v.  Board  of  School  Trustees 
(Ind.  App.)    66   N.   E.   1010. 

28.  Plumbing — Gross  v.  Creyts  (Mich.)  9 
Detroit  Leg.  N.  199,  90  N.  W.  689.  On  a 
contract  to  construct  a  heating  plant,  the 
contractor  miay  recover  for  services  ren- 
dered on  a  quantum  meruit  less  th«  dam- 
ages occasioned  by  his  breach — McKnight  v. 
Bertram  H.  &  P.  Co.,  65  Kan.  859,  TO  Pac. 
345. 

29.  Riddell  v.  Peck-Williamson  H.  &  V. 
Co..    27   Mont.    44,  69  Pac.   241. 

30.  Person  v.  Stoll,  72  App.  Div.  (N.  T.) 
Itl. 

31.  O'Dwyer  v.  Smith,  38  Misc.  Rep.  (N. 
Y.)    136. 

32.  Laclede  Const.  Co.  v.  Tudor  Iron 
Works,    169   Mo.   137. 

33.  Where    work    is    required    to    be    done 
according  to  the  plans,  specifications  and  re- 
quirements of  an  engineer,  a  petition  is  de- 
Cur.  Law — 25. 


murrable  which  does  not  allege  that  peti- 
tioner performed  according  to  the  require- 
ments of  the  supervising  engineer  or  sot 
forth  facts  excusing  him — National  Con- 
tracting Co.  v.  Com.  (Mass.)  66  N.  E.  639. 
It  is  not  sufficient  to  show  performance  of 
a  condition  precedent  to  a  right  to  ter- 
minate the  contract  to  aver  "that  plaintiff 
had  done  and  performed  all  the  agreements, 
provisions  and  stipulations  to  be  by  him 
done  and  performed  by  the  terms  of  said 
contract" — White  v.  Mitchell  (Ind.  App.)  65 
N.  E.  1061.  Under  a  contract  providing  that 
weekly  payments  should  be  made  on  esti- 
mates of  the  engineer  in  charge,  but  that 
such  estimates  should  be  made  only  when 
the  work  progressed  in  accordance  with  the 
contract,  a  petition  which  does  not  allege 
that  the  express  agreement  was  complied 
with  is  demurrable — National  Contracting 
Co.  v.  Com.  (Mass.)  66  N.  E.  639.  A  peti- 
tion for  damages  for  breach  of  contract, 
in  that  the  engineer  in  charge  had  failed 
to  make  alterations  in  the  plans  of  work, 
though  an  emergency  had  arisen  by  rea- 
son of  the  material  around  the  tunnel  not 
permitting  an  excavation  and  the  refilling 
of  it  be  done  under  air  pressure,  is  de- 
fective if  it  fail  to  allege  that  air  pressure 
was  necessary  to  prevent  changes  in  the 
ground  water  line,  the  contract  providing 
that  alterations  should  be  made  if  demand- 
ed by  an  ejnergency  and  that  work  be  done 
under  air  pressure  when  necessary  to  pre- 
vent changes  in  the  adjacent  ground  water 
line — National  Contracting  Co.  v.  Com. 
(Mass.)    66   N.   E.    639. 

34.  The  owner  need  not  plead  perform- 
ance of  the  conditions  of  the  contr.nct  in 
an  action  by  him  for  breach,  w^here  it  was 
stipulated  that  payments  should  depend  on 
the  progress  of  the  work,  and  on  presenta- 
tion of  certificates  from  the  architect  as 
to  performance — Ramlose  v.  Dollman  (Mo. 
App.)    73    S.   W.    917. 

3.5.  Waiver  of  provisions  for  a  written 
order   of  the   architect   for   alterations   must 


386 


BUILDING    CONTRACTS. 


§   15 


A  defense  that  plaintiff  has  not  complied  with  an  essential  condition  precedent 
is  not  deinurrable.^'  Where. the  complaint  is  assumpsit  for  extra  work  outside  a 
building  contract,  it  is  not  sufficient  answer  to  aver  execution  of  the  original  con- 
tract.^'^  Where  the  complaint  alleges  a  contract  to  erect  a  building,  it  is  but  S 
partial  defense  to  allege  a  contract  to  furnish  certain  portions  of  the  building 
which  was  taken  out  of  defendant's  hands  in  violation  of  the  agreement.^^  Special 
notice  is  not  needed  to  allow  proof  of  nondelivery  of  materials/"  By  statute  it 
may  become  unnecessary  to  traverse  a  different  contract  set  up  by  answer.*^ 

Variajice. — The  pleadings  and  proof  must  correspond.*- 

Evidence. — The  burden  is  on  defendant  to  show  failure  to  complete  the  work 
within  the  agreed  time.*^  Plaintiff's  failure  to  prove  the  expense  of  completion 
may  be  supplied  by  defendant's  evidence.**  In  an  action  for  extra  work,  evidence 
of  the  cost  thereof  is  inadmissible  which  does  not  show  its  amount  or  value  under 
the  terms  of  the  contract;*^  the  contractor  must  introduce  the  original  contract.** 
In  an  action  on  a  contract  and  not  a  quantum  meruit,  the  right  to  recover  is  not 
affected  by  evidence  of  value  to  the  defendant,*'  other  rulings  as  to  the  admissibil- 
ity of  evidence  are  collected  in  the  notes,*^  as  are  holdings  as  to  sufficiency.*^ 


be     pleaded — Essex     v.     Murray     (Tex.     Civ. 
App.)    68   S.  W.   736. 

3«.  Action  for  failure  to  permit  a  con- 
tractor to  perform  slTOuld  allege  the  char- 
acter and  amount  of  labor  done  by  plaintiff 
preparatory  to  the  work,  the  fact  that  a 
profit  would  have  been  made  and  the  amount 
thereof — Andrae  v.  "Watson  (Tex.  Civ.  App.) 
73   S.    "W.    991. 

37.  Averment  in  an  answer  of  a  clause 
providing  that  the  decision  of  the  supervis- 
ing engineers  as  to  the  fulfillment  of  the 
contract  should  be  conclusive,  and  that  the 
contractor  has  not  obtained  such  decision 
or  requested  defendant  to  obtain  it — Na- 
tional Contracting  Co.  v.  Hudson  River  Wa- 
ter Power  Co..   170  N.  T.  4:!9. 

38.  Complaint  alleged  that  the  work  was 
In  addition  to  the  work  required  by  the  orig- 
inal contract — Board  of  Com'rs  v.  Gibson, 
158   Ind.    471. 

39.  Where  no  denial  of  the  allegations 
of  the  complaint  was  made,  an  answer  set- 
ting up  such  facts  as  a  complete  defense  was 
demurrable  but  was  good  as  a  counterclaim 
— Ivy  Courts  Realty  Co.  v.  Morton,  73  App. 
Dlv.    (N.    Y.)    335. 

40.  In  an  action  to  recover  under  a  con- 
tract to  furnish  stone,  defendant  may  with- 
out special  notice  show  that  it  became  un- 
necessary to  use  the  rock  anticipated,  and 
plaintiff  having  been  notified  did  not  de- 
liver it,  though  he  claimed  for  the  entire 
amount  specified  by  the  contract — Wymard 
v.  Deeds,  21  Pa.  Super.  Ct.  332. 

•  41.  In  an  action  for  breach  of  a  contract 
to  pay  for  certain  floor  arches,  an  answer 
which  alleges  a  written  agreement  by  which 
payment  was  guaranteed  by  defendant  only 
of  a  certain  portion  of  the  price  of  setting 
up  such  arches,  is  under  Code  Civ.  Proc. 
§  522,  regarded  as  traversed  without  a  re- 
ply so  that  fraud  may  be  proven  in  avoid- 
ance of  the  agreement — Nesbit  v.  Jencks,  81 
App.  Div.    (N.  Y.)    140. 

42.  Where  the  complaint  alleges  simply 
a  contract,  the  answer  avers  the  execution 
of  a  written  contract  and  the  reply  admits 
the  execution  of  a  contract  as  set  forth  in 
plaintiff's  complaint,  and  plaintiff  on  the  trial 
admits    that    he    made    the    written    contract 


attached  to  the  answer,  evidence  of  an  oral 
modification  on  a  subsequent  day  may  be 
rejected  as  variance — Duval  v.  American 
Telep.  &  Teleg.  Co.,  113  Wis.  504.  Under  an 
allegation  that  a  tram-way  as  constructed 
was  defective,  unsafe  and  not  of  the  kind 
agreed  on,  it  may  be  shown  that  the  tram- 
way was  defective  in  that  it  was  more  de- 
structive to  the  cable  used  than  was  the 
tram-way  which  it  replaced — Lipscomb  v. 
South  Bound  R.  Co.,  65  S.  C.  148.  Under  alle- 
gations in  an  action  for  damage  occasioned 
by  falling  of  plaster,  that  the  materials  fur- 
nished w^ere  not  good  and  the  work  was  not 
performed  in  a  workmanlike  manner,  recov- 
ery cannot  be  had  for  falling  of  plaster  caus- 
ed by  too  rapid  drying,  though  occasioned  by 
defendant's  failure  to  properly  close  the  doors 
and  windows — Taussig  v.  Wind  (Mo.  App.) 
71  S.  W.  1095.  Where  a  contract  required 
an  architect's  certificate  and  complete  per- 
formance was  alleged,  the  contractor  can- 
not recover  on  a  sliowing  that  the  certifi- 
cate was  unreasonably  withheld — Dwyer  v. 
New  York,   77  App.  Div.    (N.   Y.)    224.      ' 

43.  Supporting  a  counterclaim  for  liqui- 
dated damages — Dunn  v.  Morgenthau,  73  App. 
Div.    (N.    Y.)    147. 

44.  Action  to  recover  a  balance  on  a  build- 
ing contract  where  at  the  close  of  evidence 
plaintiff  amended  by  alleging  substantial  In- 
stead of  complete  performance,  defendant's 
evidence  showing  the  necessary  expense  and 
enabling  the  court  to  adjust  the  judgment 
— Niemeyer  v.  Woods,  110  N.  Y.  St.  Rep.  563. 

45.  Work  in  constructing  a  railroad  grade 
under  a  contract  fixing  prices  for  extra  work 
required  by  the  engineer — North  American 
Ry.  Const.  Co.  v.  McMath  Surveying  Co.  (C. 
C.   A.)    116   Fed.   169. 

46.  As  evidence  that  the  work  was  extra 
and  of  the  rate  at  which  it  was  to  be  paid — 
Board  of  Com'rs  v.  Gibson,  158  Ind.  471. 

47.  Letters  not  objected  to  on  the  ground 
of  variance  may  be  considered  with  regard 
to  their  effect  on  the  previous  contract 
though  the  original  contract  is  pleaded — 
Laclede  Const.  Co.  v.  Tudor  Iron  Works,  169 
Mo.    137. 

48.  Not  reversible  error  to  exclude  evi- 
dence that  the  sub-contractor  at  the  time  of 


§  1 


BUILDING  AND  LOAN  ASSOCIATIONS. 


387 


Instructions"*  may  remove  from  the  jury  the  question  of  substantial  perform- 
ance of  the  entire  contract.^^ 

BUILDING  AND  LOAN  ASSOCIATIONS. 


9  1.  The  Organization. — By-Laws;  Powers; 
Ultra  Vires;  Powers  of  Officers;  Bonds. 

§  2.  Membership  and  Stock. — Status  of 
Borrowing-  Members;  Preferred  Shares;  Paid 
up  Stock;  Dividends;  Transfer  of  Stock;  Ma- 
turity; "Withdrawal;  Actions. 

§  3.  Loans  and  Mortgag-es. — General  Fea- 
tures; Priorities;  Dues  and  Fines;  Usury; 
Premiums;  Cancellation  of  Contract;  Default 


and  Foreclosure;  Foreclosure  after  Insolv- 
ency; Accounting  between  Borrower  and  As- 
sociation; Accounting-  on  Voluntary  Liquida- 
tion; Accounting  after  Insolvency  of  Asso- 
ciation. 

§  4.  Termination  and  Insolvency  of  Asso- 
ciation— Receivership;  Insolvency;  Rights 
between  Shareholders;  Rights  of  Directors; 
Voluntary   Liquidation. 


§  1.     The  organization} — Invalidity  of  an  association's  charter  may  be  reme- 
died by  subsequent  curative  legislation.^     A  provision  for  the  returning  of  fees 


making  his  contract  had  the  specifications, 
where  he  is  seeking  to  recover  for  work 
as  extra,  though  It  was  called  for  by  the 
specifications  and  expressly  excluded  from 
the  sub-contract — Isaacs  v.  Dawson,  70  App. 
Div.  (N.  Y.)  232.  Evidence  of  an  expert 
plumber  as  to  the  preferablllty  of  one  and 
one-half  Inch  to  two  inch  pipe  under  laun- 
dry tub  Is  admissible  if  the  issue  is  raised, 
the  two  Inch  pipe  being  called  for  in  the 
contract  and  the  one  and  one-half  inch 
pipe  conforming  to  the  regulation  of  the 
building  department.  The  expert  may  also 
testify  as  to  whether  earthen  pipe  was  pre- 
ferable to  iron,  if  the  contractor  has  sought 
to  show  that  such  pipe  was  necessitated  by 
the  condition  of  the  ground — Schultze  v. 
Goodstein,  115  N.  Y.  St.  Rep.  946.  Under  al- 
legations of  facts  showing  that  plaintiff  was 
entitled  to  a  final  certificate  which  had  been 
refused  him  on  his  demand,  evidence  show- 
ing that  the  certificate  was  refused  at  the 
Instance  of  the  owner  Is  admissible — Van- 
derhoof  v.  Shell  (Or.)  72  Pac.  12fi.  Evidence 
of  the  contractor's  reputation  for  fair  and 
honorable  dealing  is  irrelevant  to  an  issue 
of  compliance  with  the  contract — Cannon  v. 
Hunt  (Ga.)  42  S.  E.  734.  Evidence  of  the 
work  done  under  direction  of  the  architect 
as  well  as  under  the  original  plans  is  ad- 
missible, where  It  appears  that  the  archi- 
tect has  made  numerous  changes  in  the 
plans  requiring  a  great  deal  of  extra  work 
making  the  original  plans  inadequate — Mc- 
Clellan  V.  McLemore  (Tex.  Civ.  App.)  70  S.  W. 
224.  Where  contractors  are  compelled  to 
abandon  a  well  before  they  had  reached 
water  as  required  by  the  contract,  evidence 
in  an  action  to  recover  the  reasonable  value 
of  the  labor,  that  they  were  willing  to 
start  drilling  another  hole  unless  water 
was  found  Is  Immaterial — Peacock  v.  Glea- 
son  (Iowa)  90  N.  W.  610.  Where  defendant 
claimed  failure  to  perform,  it  may  be  shown 
that  he  rented  the  building  as  erected  and 
permitted  the  tenant  to  go  into  possession, 
and  the  acts  of  the  tenant  may  be  shown — 
Mitchell  V.  Williams,  114  N.  Y.  St.  Rep.  864. 
On  an  issue  as  to  whether  a  well  was  drilled 
with  reasonable  diligence  and  care,  it  may 
be  shown  that  It  was  customary  to  use 
casing  to  prevent  a  well  from  caving  in — 
Peacock  v.  Gleason  (Iowa)  90  N.  W.  610. 
Evidence  of  a  custom  in  papering  is  inad- 
missible where  the  contract  provides  "walls 
to    be    washed    or    sized    with    good    strong 


glue" — Independent   School   Dlst.    v.    Swearn- 
gin    (Iowa)    94   N.  W.   206. 

49.  Evidence  sufficient  to  warrant  sub- 
mission of  the  question  as  to  whether  a 
change  was  ordered  by  the  architect — Es- 
sex V.  Murray  (Tex.  Civ.  App.)  68  S.  W. 
736.  To  show  modification  of  a  contract 
for  drilling  a  well — Wendling  v.  Snyder 
(Ind.  App.)  65  N.  E.  1041.  Court's  allowance 
for  changes  and  extra  work  held  excessive 
— California  Iron  Const.  Co.  v.  Bradbury 
138  Cal.  328,  71  Pac.  346.  To  establish  in- 
solvency of  the  contractor  at  the  time  of 
making  a  subcontract,  entitling  the  subcon- 
tractor to  repudiate  on  the  ground  of  fraud 
— University  of  Virginia  v.  Snyder  (Va.)  42 
S.  E.  337.  To  show  agreement  to  pay  wages 
at  city  rates  for  work  in  the  country — Hil- 
brand  v.  DInlnny,  73  App.  Div.  (N.  Y.)  511. 
To  show  agreement  to  pay  the  board  of 
laborers — Hilbrand  v.  DIninny,  73  App.  Div. 
(N.  Y.)  511.  To  show  the  substitution  of 
a  verbal  contract  abrogating  a  written  con- 
tract for  the  dredging  of  a  channel — Row- 
land Lumber  Co.  v.  Ross,  4  Va.  Sup.  Ct.  R. 
191,  40  S.  E.  922.  To  show  waiver  of  timely 
delivery  of  material — Boyle,  etc.,  Co  v.  Fox 
110  N.  Y.  St.  Rep.  102. 

50.  Instructions  held  erroneous  as  assum- 
ing that  plaintiffs  declined  to  proceed  with 
their  work  unless  their  estimate  was  paid 
in  full — McClellan  v.  McLemore  (Tex.  Civ. 
App.)  70  S.  W.  224.  Where  there  is  evidence 
that  fire  proof  arches  had  already  been  de- 
livered before  the  contracts  in  controversy 
were  entered  into,  the  jury  should  be  in- 
structed that  in  case  there  had  been  a  de- 
livery there  was  no  consideration  for  the 
contracts,  one  of  them  being  alleged  to  be 
an  agreement  by  a  mortgagee  to  pay  for 
them  in  consideration  of  their  delivery  into 
the  mortgaged  premises,  and  the  other  which 
was  asserted  by  the  mortgagee  being  an 
agreement  to  guarantee  payment  to  a  cer- 
tain sum  if  plaintiff  would  furnish  a  set 
of  arches  In  the  building — Nesbit  v.  Jencks. 
81  App.  Div.  <N.  Y.)  140.  Instructions  that 
plaintiff  would  have  no  right  to  charge  de- 
fendants with  additional  costs  owing  to 
changes  in  sizes  and  weights  of  material, 
render  unnecessary  Instructions  on  the  ques- 
tion of  whether  plaintiff  could  bind  defend- 
ants by  contract  for  heavier  material,  the 
action  having  arisen  from  an  exercise  of 
the  right  by  plaintiff  to  procure  material 
elsewhere    on   default   of   defendants   in   fur- 


388 


BUILDING  AND  LOAN  ASSOCIATIONS. 


§   1 


and  charges  paid  in  advance  to  a  rejected  applicant  for  membership  does  not 
deprive  a  corporation  of  its  character  as  a  building  and  loan  association.^  An 
unincorporated  building  association  is  a  partnership  and  the  directors  are  not  gov- 
erned by  the  strict  rules  applying  to  directors  of  corporations.* 

Pleading  corporate  existence.— In  an  action  by  a  corporation  it  may  be  re- 
garded as  a  building  and  loan  association  if  its  name  and  the  allegations  of  the 
petition  indicate  that  it  has  such  character." 

By-laivs  adopted  before  passage  of  an  amendment  to  a  statute,  but  conform- 
ing thereto,  need  not  be  readopted  to  become  operative  under  the  amendmeric,® 
thouo-h  a  mere  doing  business  under  a  statute  is  not  an  acceptance  of  powers  con- 
ferred in  it.^  In  the  absence  of  statute,  notice  of  the  repeal  of  a  by-law  is  not 
required.*  A  member  who  has  for  years  recognized  the  validity  of  by-laws  can- 
not question  the  validity  of  their  adoption  collaterally,  or  there  may  be  an  estop- 
pel to  deny  their  existence." 

Powers. — Building  and  loan  associations  have  no  powers  not  conferred  by  stkl- 
ute.^"  Thev  cannot  borrow  money  to  retire  stock."  They  may  extend  the  time 
of  payment  of  mortgages  and  make  settlements  with  debtors.^^     If  they  have  power 


nlshing  It — Christopher,   etc.,    Co.   v.   Yeager,  | 
202   111.   486.  i 

51.  In  an  action  on  contract  to  decorate 
a  room,  erect  woodwork  and  furnish  it,  the 
jury  may  be  told  that  defective  woodwork 
would  not  prevent  recovery  if  the  contract 
was  "otherwise"  substantially  performed — 
Pitcairn  v.  Philip  Hiss  Co.,  113  Fed.  492, 
51  C.   C.  A.   323. 

1.  Taxation  of  building  and  loan  asso- 
ciations is  treated  under  the  article  Taxa- 
tion. 

The  subject-matter  of  a  statute  con- 
cerning building  and  loan  association  mort- 
gages is  sufficiently  indicated  by  a  title 
"An  act  regulating  building  and  loan  asso- 
ciations"— Julien  V.  Model  Bldg.,  Loan  &  In- 
vest. Co.   (Wis.)    92  N.  W.  561. 

a.  An  association  organized  under  Act 
Jan.  30,  1871.  whose  charter  is  invalid  for 
the  reason  that  it  was  granted  by  a  chan- 
cery court  without  power  In  the  premises, 
may  take  advantage  of  act  Mar.  23,  1883. 
providing  that  associations  under  charters 
granted  by  such  courts  may,  by  applica- 
tion for  amendment  of  their  charters,  ob- 
tain powers  prescribed  by  Acts  1875.  c.  142, 
and  it  is  a  mere  irregularity  if  In  the  appli- 
cation for  the  amendment  some  of  the  pow- 
ers which  the  association  desired  to  obtain 
were  described  merely  by  general  reference 
to  a  specific  section  of  such  later  statute — 
Deltch  V.  Staub   (C.  C.  A.)    115  Fed.  309. 

8.  Cottingham  v.  Equitable  Bldg.  &  Loan 
Ass'n    (Ga.)    41   S.   E.  72,  74. 

4.  The  directors  are  regarded  as  man- 
aging partners  and  so  called  stockholders 
are  general  partners — Woodward  v.  Nelli- 
gan,   19  App.  D.  C.   550. 

5.  Cottingham  v.  Equitable  Bldg.  &  Loan 
Ass'n  (Ga.)  41  S.  E.  72,  74. 

6.  Where,  before  the  passage  of  Act  July 
1,  1891,  providing  that  a  building  and  loan 
association  might  make  loans  at  a  rate 
of  interest  and  premium  fixed  by  its  by- 
laws, the  preference  or  priority  of  loans 
being  decided  by  the  priority  of  applica- 
tions, the  association  had  adopted  by-laws 
providing  for  the  filing  of  appllcati6ns  con- 


secutively and  the  charging  of  a  fixed  rate 
and  premium,  the  board  of  directors  need 
not  go  through  the  form  of  re-adopting  the 
by-laws  in  order  that  they  may  become 
operativ'e  under  the  act — Collins  v.  Cobe, 
104    111.    App.    142. 

7.  If  the  statute  confers  authority  on 
existing  associations  to  make  loans  at  a 
premium  fixed  in  the  by-laws  without  com- 
petition, it  must  be  shown  in  order  to 
validate  a  loan  so  made  that  a  by-law 
previously  adopted  fixing  the  premium  rate, 
was  readopted  after  the  statute  took  effect 
or  that  the  association  reorganized  under 
the  statute  (Rev.  St.  1889.  ch.  42,  art.  9; 
Rev.  St.  1899.  ch.  12,  art.  10).  On  a  loan  so 
made,  the  association  is  entitled  to  but  6 
per  cent,  interest  and  all  payments  in  ex- 
cess of  such  rate  should  be  credited  on  the 
principal — Callison  v.  Trenton  Bldg.  &  Loan 
Ass'n    (Mo.   App.)    72   S.  W.    477. 

8.  A  member  of  a  Minnesota  building  as- 
sociation becoming  such  while  the  by-law  is 
in  force  is  not  entitled  on  subsequently  ob- 
taining a  loan  to  rely  on  the  by-law  as  not 
having  been  repealed — Western  Realty  & 
Investment  Co.  v.  Haase   (Conn.)   53  Atl.   861. 

9.  By-laws  entered  on  the  records  of  the 
association,  acted  on,  and  enforced  cannot 
be  asserted  by  a  member  not  to  have  b'ern 
regularly  adopted,  as  a  defense  to  payment 
of  his  obligations  to  the  association — Collins 
V.  Cobe,   202  111.   469. 

10.  If  the  statute  provides  that  shares 
shall  mature  when  stock  by  reason  of  the 
earnings  reaches  par,  the  association  cannot 
fix  any  period  for  maturity — Caston  v.  Staf- 
ford, 92  Mo.  App.  182.  They  can  use  only 
such  proportion  of  the  monthly  receipts  in 
the  retirement  of  stock  as  is  authorized  by 
statute — Appeal   of   Powell,    93   Mo.   App.    296. 

11.  Such  borrowing  held  not  for  tem- 
porary purposes — Appeal  of  Powell,  93  Mo. 
App.    296. 

12.  Where  such  acts  are  done  for  the 
benefit  and  valid  exercise  of  their  powers 
and  not  to  evade  statutory  restrictions — 
Kelso  V.  Oak  Park  Bldg.  &  Loan  Ass'n,  99 
111.  App.   123. 


§  2 


MEMBERSHIP    AND    STOCK. 


389 


to  purcliase  property  sold  under  mortgages  which  they  hold,  they  have  also  the 
power  to  sell  ai>d  convey  such  property." 

Ultra  vires  acts. — Contracts  to  pay  officers  other  than  the  secretary,  for  serv- 
ices, are  ultra  vires  and  against  public  policy.^*  A  building  and  loan  association 
is  liable  for  a  deposit  though  received  on  an  ultra  vires  contract,^^  and  where  it 
has  had  the  benefit  of  performance  by  the  member  cannot  object  that  it  was  not 
authorized  by  statute  to  make  a  contract  to  pay  a  fixed  sum  at  the  maturity  of 
the  certificate.^^ 

Powers  of  officers. — Loans  may  be  placed  in  the  hands  of  the  directors. ^^  It 
is  not  an  unlawful  placing  of  power  in  the  hands  of  the  directors  to  vest  it  in 
fifteen  directors  chosen  from  the  stockholders.'^^ 

The  corporation  is  bound  by  official  statements  of  the  secretary  accepted  and 
acted  on  in  good  faith. ^®  Acts  of  the  secretary  of  an  incorporated  building  asso- 
ciation beyond  the  scope  of  his  powers  as  defined  by  the  articles  of  the  association 
may  be  binding  on  the  association  where  by  apparent  acquiescence  of  the  directors 
and  members,  he  has  become  practically  a  general  manager.^"  The  association 
may  be  estopped  by  a  statement  of  its  collecting  agent  as  to  the  number  of  pay- 
ments required  to  bring  stocks  to  par  and  release  a  deed  of  trust.^^ 

The  fact  that  a  representative  of  an  association  receives  a  commission  from 
the  borrower  does  not  make  him  the  agent  of  the  latter.^^ 

Bonds  of  officers. — A  signature  of  the  secretary  for  the  purpose  of  attesting 
the  signature  and  seal  of  the  vice-president  on  the  back  of  the  secretary's  surety 
bond  cannot  be  regarded  as  a  signing  of  the  bond.^^ 

§  3.  Membership  and  stock. — The  fact  that  a  lending  and  borrowing  class  of 
members  are  created  with  adverse  interests  does  not  render  the  methods  of  the 
association  unlawful.^*  Estoppel  to  deny  membership  by  virtue  of  a  forged  cer- 
tificate does  not  result  from  the  acceptance  of  payment  of  dues  to  the  secretary 
issuing  the  forged  certificate  where  the  treasurer  is  the  only  officer  entitled  to 
receive  payments.^" 


13.  Kelso    V.     Oak     Park    Bldg.     &    Loan 

Ass'n,    99    in.    App.    123. 

14.  Eddy   V.    Barry,   99    lU.   i^^VPP-   266. 

15.  On  an  ultra  vires  receipt  of  money 
as  a  deposit,  with  agreement  to  pay  inter- 
est, tlie  association  is  liable  for  interest 
only  from  the  time  payment  is  demanded — 
Brennan   v.   Gallagher,   199   111.   207. 

16.  Such  defense  is  not  available  in  an 
action  by  a  member  on  a  matured  certificate 
— Vought  V.  Eastern  Bldg-.  &  Loan  Ass'n, 
172  N.   Y.   508. 

17.  Boleman  v.  Citizens'  Loan  &  Bldg. 
Ass'n,  114   Wis.   217. 

18.  Boleman  v.  Citizens'  Loan  &  Bldg. 
Ass'n,    114    Wis.    217. 

19.  Statement  concealing  the  condition  of 
its  affairs — Shinkle  v.  Knoll,  99  111.  App. 
274. 

20.  A  member  Tvho  has  paid  his  debt  to 
the  association  to  the  secretary,  and  se- 
cured the  bond  and  deed  of  trust  and  ac- 
companying certificate  of  title,  which  had 
been  delivered  as  security,  is  entitled  to  a 
release  of  the  deed  of  trust,  acquiescence 
of  the  association  in  the  acts  of  the  secre- 
tary for  nearly  fourteen  years  being  shown, 
and  when  for  eight  years  after  the  member 
ceased  paying  dues,  the  directors  made  no 
effort  to  enforce  them  or  enforce  payment  of 
the  debt,  and  where  it  also  appeared  that  the 


association  was  In  process  of  liquidation 
with  no  "live"  stock  holders — Woodward  v. 
Nelligan,  19  App.  D.  C.   550. 

21.  The  estoppel  extends  to  the  assignee 
of  the  association  and  tliough  the  associa- 
tion did  not  know  the  purpose  of  the  in- 
quiry, where  in  reliance  thereon  plaintiff 
had  purchased  property  and  made  payments 
— Williams  v.  Verity  (Mo.  App.)  73  S.  W. 
732. 

22.  The  representative  had  power  to  so- 
licit loans,  collect  fines  and  dues,  appraise 
property  and  do  everything  toward  the 
consummation  of  the  loan,  and  w^as  appointed 
to  solicit  subscriptions  to  capital  stock  and 
collect  membersliip  fees  therefor — McMul- 
len   V.   Griggs,   23   Ohio   Cir.   Ct.    R.    417. 

23.  Laws  1895,  p.  105,  §  4,  provides  that 
the  surety  of  an  officer  should  be  approved 
by  the  board  of  directors.  A  bond  not  oth- 
erwise signed  by  the  secretary  bore 
on  its  back  after  recital  of  such  approval 
by  the  board,  the  signature  of  the  vice 
president,  followed  by  the  corporate  seal 
and  the  words  "Attest,  John  C.  Obert,  Secre- 
tary." Held,  that  it  was  not  a  sufficient 
signature  of  his  bond. — N.  St.  Louis  Bldg.  & 
Loan  Ass'n  v.   Obert,   169  Mo.   507. 

24.  Boleman  v.  Citizens'  Loan  &  Bldg. 
Ass'n,    114   Wis.   217. 

25.  Columbia    Council    Member    No.    77    V. 


390 


BUILDING  AND  LOAN  ASSOCIATIONS. 


g  2 


Status  of  borrowing  members. — The  borrower's  relation  as  a  shareholder  ceases 
with  a  resolution  of  the  directors  declaring  the  debt  due  and  directing  a  fore- 
closure, and  the  stock  is  thereby  forfeited  and  the  debt  matured,  and  it  is  also 
held  that  where  the  member  becomes  a  borrower  and  pledges  his  stock,  he  becomes 
a  debtor,"  and  is  not  chargeable  with  losses  or  entitled  to  share  profits.^^ 

Under  certain  statutory  provisions  a  borrowing  member  is  not  entitled  to 
profits  unless  they  have  been  apportioned  and  declared  by  a  board  of  directors. 
The  action  of  the  secretary,  approved  by  the  stockholders  on  report  of  the  board 
of  directors,  is  not  sufficient.^* 

Preferred  shares. — In  the  absence  of  charter  or  statutory  prohibition,  certain 
classes  of  shares  may  be  given  preference  in  respect  to  dividends  and  principal, 
and  are  not  invalidated  by  the  fact  that  when  issued  they  were  unauthorized  by 
by-law,  if  their  issuance  was  subsequently  ratified  by  the  shareholders  and  a  by- 
law authorizing  their  further  issuance  adopted,  objection  not  being  made  until  after 
insolvency  of  the  association.^' 

Full  paid  stock. — Associations  may  issue  full  paid  stock  with  guaranteed  divi- 
dends.'" If  such  dividends  are  to  be  paid  only  from  profits,  the  holders  are  not 
entitled  to  interest  after  insolvency  of  the  association." 

A  change  in  the  by-laws  of  an  association  conferring  on  instalment  stockhold- 
ers equality  with  common  or  full  paid  stockholders  does  not  authorize  the  full 
paid  stockholders  to  recover  the  price  paid  by  them  for  it,  either  on  the  ground 
that  its  issuance  was  ultra  vires  or  that  the  contract  under  which  it  was  issued 
was  repudiated,  and  if  they  were  previously  required  to  make  good  losses  in  favor 
of  instalment  shareholders,  and  having  control  of  the  business,  have  charged  losses 
against  their  stock,  they  are  not  entitled  to  repayment  of  the  losses  previously 
charged  to  them." 

Dividends  due  a  stockholder  may  be  applied  to  his  debt  to  the  association." 
A  provision  in  a  coupon  to  pay  a  certain  amount  in  a  dividend  at  a  certain  time 
amounts  to  an  agreement  to  pay  it  only  if  earned,'*  and  the  fact  that  profits  are 
earned  does  not  create  a  legal  obligation  to  pay  a  dividend.'" 

Rights  of  pledgees. — Where  a  statute  provides  that  stock  may  be  pledged  by 
delivery  of  certificates  and  the  former  holder  may  still  represent  it  at  meetings 
and  vote  as  a  stockholder,  notice  of  the  pledge  or  a  transfer  on  the  corporation's 


Belmar   Building   &   Loan   Ass'n    (N.    J.    Eq.) 
64  Atl.  142. 

26.  Juergens  v.  Cobe,  99  111.  App.  156. 

27.  Interstate  B\dg.  &  Loan  Ass'n  v.  Hol- 
land   (S.   C.)    43   S.   E.   978. 

28.  Rev.  St.  c.  32,  §  6c,  par.  83b,  !  6b,  §  5, 
par.  82--Agnew  v.  Macomb  Bldg.  &  Loan 
Ass'n,  197   111.  256. 

29.  Wilson  V.  Parvln  (C.  C.  A.)  119  Fed. 
662. 

30.  Such  Is  regarded  as  a  borrower  of 
money — Cottlngham  v.  Equitable  Bldg.  & 
Loan  Ass'n    (Ga.)    41   S.  E.  72,  74. 

31.  Wilson  V.  Parvln  (C.  C.  A.)  119  Fed. 
652. 

32.  Installment  stockholders  were  placed 
on  an  equality  with  the  owners  of  full  paid 
stock  who  had  formerly  had  the  sole  right 
to  vote  and  to  control  the  business  of  the 
association,  though  their  capital  was  sub 
ject  to  the  repayment  of  losses  sustained 
by  the  association  in  favor  of  installment 
stockholders.  The  meeting  had  been  called 
for  the  purpose  of  amending  the  by-laws 
and  complainants'   stock   was  voted   In   favor 


of  the  proposition,  complainants  being  rep- 
resented by  proxy — Synnott  v.  Cumberland 
Bldg.  Loan  Ass'n   (C.  C.  A.)  117  Fed.  379. 

33.  As  agamst  the  widow's  claim  of  such 
dividend  as  part  of  her  exempt  distributa- 
ble share  of  her  husband's  estate — Andrews 
V.  Ky.  Citizens'  Bldg.  &  Loan  Ass'n's  As- 
signee, 24  Ky.  Law  Rep.  966,  70  S.  W.  409. 

34.  Laws  1875,  c.  564.  §  1.  provided  that 
no  dividend  was  to  be  declared  except  from 
earnings,  and  the  stock  certificate  declared 
that  the  holder  was  subject  to  conditions 
printed  thereon,  that  the  certificate  should 
participate  in  profits  as  provided  by  the 
articles  of  the  association,  that  a  dividend 
to  the  extent  of  7%  per  cent,  per  annum 
would  be  paid.  The  by-laws  made  a  similar 
provision  for  the  annual  payment  of  a 
dividend  from  profits  not  exceeding  7%  per 
cent. — Watson  v.  Columbia  Mut.  Bldg.  & 
Loan   Ass'n    (N.    T.)    71  App.   Div.    498. 

35.  Dividend  Is  not  compelled  by  the  fact 
that  2  per  cent,  profits  were  earned  during 
the  preceding  six  months — Watson  v.  Co- 
lumbia Mut.  Bldg.  &  Loan  Ass'n  (N.  Y.)  71 
App.  Div.   498. 


s  2 


MEMBERSHIP    AND    STOCK. 


391 


books  is  not  required  to  make  the  association  liable  to  a  pledgee  if  it  pay  the  value 
of  the  shares  and  cancel  them  without  requiring  a  return  of  the  certificate.  The 
measure  of  damages  is  the  amount  for  which  they  were  pledged  with  interest  from 
tlie  time  action  was  brought.  The  pledgee  need  not,  before  action,  acquire  ti'Je 
to  the  shares  by  judicial  sale  or  otherwise.^" 

Maturity  of  stoclc. — A  contract  that  stock  shall  mature  before  the  borrower*? 
monthly  dues  and  profits  bring  the  stock  to  par  is  ultra  vires,^'  as  are  representa- 
tions that  stocks  will  be  brought  to  par  on  the  making  of  a  stated  number  of 
fixed  monthly  payments. ^^  An  estimate  in  a  building  and  loan  company's  prospectus 
that  stock  will  mature  at  a  stated  time  is  not  bindmg.^^  A  statement  that  par  will 
be  paid  for  each  share  at  the  end  of  a  stated  time,  subject  to  the  terms,  condi- 
tions, and  by-laws  attached,  does  not  make  the  fixed  time  of  maturity.*"  The  prom- 
ise to  pay  does  not  control  other  provisions  in  the  certificate.*^  Where  a  certificate 
of  stock  states  that  it  matures  at  a  stated  time,  and  that  the  company  will  then 
pay  the  par  value,  a  member  after  such  time  cannot  be  required  to  continue  to 
make  payment  until  they,  plus  the  earnings,  equal  the  par  value,*^  and  where  the 
instalments  have  been  duly  paid,  the  holder  of  the  certificate  of  membership  is 
entitled  to  the  par  value  of  each  share  of  stock  held  thereunder.**  Where  the 
by-laws  printed  on  a  stock  certificate  are  made  part  of  the  contract  without  reserva- 
tion as  to  amendments,  amendments  subsequent  to  the  issuance  cannot  be  consid- 
ered in  construing  the  contract.**  The  contract  with  one  shareholder  cannot  be 
avoided  for  the  reason  that  the  association  may  not  be  able  to  meet  obligations  to 
others.*** 


30.  Brown  v.  Union  Sav.  &  Loan  Ass'n, 
28   Wash.    657,    69   Pac.    383. 

37.  Caston  v.   Stafford,   92   Mo.  App.   182. 

38.  "Winiams  v.  Verity  (Mo.  App.)  73  S. 
W.    732. 

39.  Stock  does  not  necessarily  mature  in 
60  months  under  by-laws  providing:  that 
payments  on  stock  shall  be  a  certain  sum 
per  month  for  60  months  or  to  the  date  of 
maturity,  that  when  60  payments  have  been 
made,  the  stockholder  shall  be  entitled  to 
the  value  thereof,  that  a  borrowing  stock- 
holder making  60  payments  of  dues  shall 
have  credit  on  his  loan  to  the  value  of  the 
stock,  and  on  the  payment  of  any  balance, 
the  loan  will  be  satisfied — Hough  v.  "Woody 
(Ark.)    71   S.   W.   252. 

40.  Racer  v.  International  Bldg.  &  Loan 
Ass'n    (Ind.    App.)    63    N.   E.    772. 

41.  There  was  also  a  provision  that  prof- 
Its  arising  from  Interest,  premiums,  fines, 
etc.,  should  at  stated  periods  be  apportion- 
ed among  the  shares,  and  when  they  with 
the  monthly  payments  should  amount  to  the 
par  value,  the  shares  should  be  deemed  to 
have  matured  and  not  sooner — International 
Bldg.  &  Loan  Ass'n  v.  Radebaugh  (Ind.)  64 
N.  E.  604.  Provisions  for  monthly  payments 
on  shares  until  matured  or  withdrawn  and 
that  a  certain  sum  monthly  should  be  paid 
by  share  holders  on  each  share  until  they 
were  fully  paid,  are  not  inconsistent  with  a 
promise  to  pay  the  par  value  of  the  share 
at  a  fixed  date,  making  payment  contingent 
on  the  paying  In  of  a  sum  which  with  the 
profits  apportioned  to  the  certificate  would 
amount  to  its  face — Vought  v.  Eastern  Bldg. 
&  Loan  Ass'n.  172  N.  Y.  508. 

42.  Provision  for  maturity  on  seventy- 
eight  payments.  The  by-laws  provided  that 
the  certificate  of  stock,  the  application,  and 


the  by-laws  formed  the  contract,  and  re- 
quired a  monthly  installment  of  seventy- 
five  cents  on  each  share  until  fully  paid 
and  provided  that  $100  per  share  should  be 
paid  at  maturity — Field  v.  Eastern  Building 
&    Loan   Ass'n    (Iowa)    90   N.    W.    717. 

43.  The  certificate  provided  that  on  com- 
pliance with  the  conditions  and  by-laws 
printed  on  the  certificate,  the  association 
would  pay  $100  for  each  of  the  shares  held 
by  a  member,  78  months  after  the  date  of 
the  certificate,  the  amount  of  monthly  in- 
stallments and  the  maturity  of  the  certifi- 
cate being  fixed  by  the  Indorsement  on  the 
back  thereof — Vought  v.  Eastern  Bldg.  & 
Loan    Ass'n,    172    N.    Y.    508. 

44.  Field  v.  Eastern  Bldg.  &  Loan  Ass'n 
(Iowa)  90  N.  W.  717.  Where  the  associa- 
tion undertakes  to  mature  certain  shares 
in  a  certain  time,  the  agreement  is  not  af- 
fected by  the  fact  that  the  shareholder  ob- 
tains a  loan  on  the  security  of  his  shares 
after  amendment  of  the  by-laws  making 
stock  mature  when  Its  par  value  is  equaled 
by  the  amount  of  the  dues  paid  thereon 
with  apportioned  profits;  nor  Is  it  rendered 
conditional  on  the  success  of  the  enterprise 
by  an  agreement  of  the  shareholder  to  pay 
a  certain  monthly  Installment  until  the  stock 
matures  or  Is  withdrawn,  or  by  a  by-law 
continuing  payment  of  Installments  until 
full  payment  of  the  share — Eastern  Bldg.  & 
Loan  Ass'n  v.  Williamson,  189  U.  S.  122. 

45.  The  association  was  composed  of 
small  stockholders  throughout  the  United 
States,  and  It  was  provided  that  no  share- 
holder should  have  any  claim  or  Interest  or 
control  of  the  affairs,  assets  or  funds  of  the 
association  except  as  specifically  provided — 
Field  V.  Eastern  Bldg.  &  Loan  Ass'n  (Iowa) 
90  N.  W.  717. 


3V3 


BUILDi:JG  AND  LOAN  ASSOCIATIONS. 


§3 


Withdrawal. — PajTneiii  of  the  withdrawal  value  of  shares  may  be  required  to 
be  made  from  a  particular  fund,  and  a  fee  covering  clerical  expenses  may  be  ex- 
acted.*' The  term  "withdrawing  stockholders"  includes  those  who  withdraw  at 
the  maturity  of  stock  as  well  as  those  withdrawing  before.*^  One  who  ceases  to 
be  a  member  of  the  association  is  no  longer  liable  for  its  debts  or  entitled  to  share 
in  its  subsequent  earnings.**  A  leaving  of  a  portion  of  the  amount  due  a  stock- 
holder on  account  of  matured  stock  on  deposit  at  interest  will  not  be  considered  as 
a  deposit  to  meet  dues  and  payments  on  stock.** 

Actions. — A  foreign  building  and  loan  association  cannot  by  a  provision  in 
its  contract  require  that  suits  against  it  be  brought  in  the  state  of  its  incorpora- 
tion.'*" The  withdrawing  member  of  a  building  association  may  proceed  in  equity 
before  having  obtained  a  judgment  at  law  and  exhausted  his  legal  remedies.^^  lit 
an  action  on  a  matured  certificate,  the  application  for  membership  need  not  be 
introduced."^  Where  the  contract  is  misleading,  the  shareholder  may  testify  as 
to  representations  by  the  agent  of  the  association  at  the  time  of  her  application." 

§  3.  Loans  and  mortgages.  A.  General  features  and  regulations. — The  issu- 
ing of  stock,  execution  of  a  note  and  mortgage,  and  the  issuance  of  lien  stock  may 
be  one  transaction.^*  Neither  one  who  accepts  a  loan  and  stock  issued  nor  his 
assignee  can  assert  that  he  deals  as  a  stranger.""  The  constitution  and  by-laws  of 
the  association  become  part  of  the  contract."'  Where  there  is  no  usury,  fraud, 
or  other  illegality,  contracts  with  a  foreign  association  will  be  enforced  according 
to  the  equitable  interpretation  of  their  terms."''  Taking  a  trust  deed  on  encum- 
bered real  estate  to  secure  a  loan  by  a  member  is  not  an  ultra  vires  act,  and  stat- 
utes providing  that  borrowers  shall  give  unencumbered  security  are  not  positive 
prohibitions  on  the  association  though  mandatory  on  the  members;  hence  a  trust 
deed  obtained  on  a  false  representation  that  the  property  was  unencumbered  is 
not  void."*  Only  the  state  in  a  direct  action  may  question  whether  a  loan  to 
one  not  a  member  is  an  unauthorized  exercise  of  corporate  power."®  A  statute  pro- 
viding that  stock  pledged  as  security  may  not  be  withdrawn  does  not  forbid  its 
withdrawal  on  payment  of  the  loan.'" 


46.  The  association  may  limit  payments 
of  withdrawal  value  to  funds  derived  from 
a  percentage  of  dues  collected,  and  may  ex- 
act a  withdrawal  fee  of  one  dollar  per  sliare 
without  violating:  1  Gen.  St.  p.  331 — Intiso 
V.   State    (N.   J.    Law)    53   Atl.    206. 

47.  Construing  a  certificate  of  member- 
ship providinp:  that  no  money  should  be 
drawn  from  the  loan  fund  except  to  make 
loans  on  security  and  to  pay  amounts  due 
withdrawing  shareholders — Vought  v.  East- 
ern  Bldg.   &   Loan   Ass'n,   172  N.   Y.    508. 

48.  Juergens    v.    Cobe,    99    111.    App.    156. 

49.  The  stockholder  received  a  pass  book 
showing  a  deposit  of  $3,800  on  Interest,  the 
remaining  stock  amounted  to  only  $2,000. 
and  he  made  the  payments  thereon  from 
other  funds  and  received  the  value  on  its 
maturity,  leaving  the  $3,800  on  deposit — 
Brennan  v.  Gallagher.   199   111.   207. 

50.  Code  1897.  c.  13,  tit.  9.  requires  for- 
eign building  and  loan  associations  to  con- 
sent that  notice  of  suit  may  be  served  on 
the  auditor — Field  v.  Eastern  Bldg.  &  Loan 
Ass'n    (Iowa)    90    N.    W.    717. 

51.  Continental  Nat.  Bldg.  &  Loan  Ass'n 
V.  Miller   (Fla.)    33  So.  404. 

51.     It    was    not    a    part    of    the    contract 


though  mentioned  as  part  of  the  considera- 
tion and  defendant  did  not  claim  that  it 
'■onstituted  a  defense — Vought  v.  Eastern 
Bldg.    &    Loan   Ass'n,    172    N.    T.    508. 

53.  Code  1897.  §  4614.  provides  that  where 
there  is  a  mutual  misunderstanding  the  con- 
tract is  to  prevail  against  either  party  in 
the  sense  in  which  he  had  reason  to  sup- 
pose the  other  understood  it — Field  v.  East- 
ern Bldg.  &  Loan  Ass'n    (Iowa)   90  N.  W.   717. 

54.  Sufficiency  of  evidence  to  establish 
such  fact — Western  Loan  &  Sav.  Co.  v.  Des- 
ky,  24  Utah,  347,  68  Pac.  141. 

55.  The  association  having  no  right  to 
make  loans  except  to  members — Bnleman  v. 
Citizens'  Loan  &  Bldg.  Ass'n,   114   Wis.   247. 

56.  Agnew  v.  Macomb  Bldg.  &  Loan  Ass'n, 
197    111.    256. 

.57.  People's  Bldg.,  Loan  &  Sav.  Ass'n  v. 
Gllmore   (Neb.)    90  N.  W.   108. 

58.  Rev.  St.  c.  32,  §  85 — Juergens  v.  Cobe. 
99    111.    App.    156. 

59.  Civ.  Code.  §§  633-6481/4 — Bay  City  Bldg. 
i<c  Loan  Ass'n  v.  Broad,  136  Cal.  525.  69  Pac. 
225. 

60.  Rev.  St.  1899,  §§  1370,  1368— Reitz  v. 
Hay  ward    (Mo.   App.)    73   S.   W.   374. 


§  iii 


LOANS  AND  MORTGAGES. 


393 


In  the  absence  of  statute,  notes  and  mortgages  to  a  building  and  loan  associ- 
ation are  negotiable  and  assignable.'^ 

Priority. — Statutes  ma}^,  without  violation  of  the  United  States  Constitution, 
allow  mortgages  of  mutual  building  and  loan  associations  priority  over  other  liens 
on  premises  subsequently  filed."- 

Insurance  of  mortgaged  property. — A  provision  in  the  by-laws  requiring  bor- 
rowing members  to  insure  their  premises  for  the  security  of  the  association,  and 
authorizing  the  association  on  failure  of  the  borrower  to  make  renewals,  makes  the 
association  the  borrower's  agent  and  places  on  it  the  liability  for  loss  in  case  it 
neglect?  to  keep  the  property  insured.®' 

Dues  and  fines. — Loan  dues  characterized  by  the  by-laws  as  payments  on  stock 
cannot  be  regarded  as  interest,®*  and  stock  dues  cannot  be  considered  in  determin- 
ing whether  interest  paid  is  usurious  where  it  is  not  intended  to  apply  them  to 
the  loan  until  maturity.®^  Monthly  stock  dues  do  not  of  themselves  operate  as  a 
pro  tanto  satisfaction  of  the  loan.®® 

A  stipulation  to  continue  payment  on  stock  surrendered  at  the  time  of  loan 
is  void.®'^  The  rule  differs  as  to  the  liability  for  fines  where  a  borrower  has  ceased 
payment.®*  Where,  owing  to  the  peculiar  relationship  of  the  borrower,  fines  for 
delinquent  payments  have  never  been  charged  against  him,  they  should  not  be 
allowed  in  an  action  by  him  for  the  cancellation  of  his  note  and  deed  of  trust.®" 

Rights  and  liabilities  of  transferees  of  borrower. — The  grantee  of  a  borrowing 
stockholder  stands  in  the  same  position  as  the  stockholder. '^^ 

B.  Usury. — An  agreement  that  the  stockholder  would  be  bound  by  the  by-laws 
in  existence  or  afterward  adopted  does  not  deprive  him  of  his  right  to  assert  usury.''* 

Conflict  of  laws. — The  rule  of  the  federal  courts  is  that  the  contract  of  a  bor- 
rowing stockholder  is  governed  by  the  law  of  the  state  in  which  the  association 


61.  Prior  to  passage  of  Burns'  Rev.  St. 
§    4463e — Bowlby   v.    Kline.    28    Ind.    App.    659. 

62.  Rev.  St.  1898,  §§  2014-15;  United  States 
Const,  art.  14,  §  1 — Julien  v.  Model  Bldg., 
Loan   &   Invest.   Co.    (Wis.)    92   N.   W.    561. 

63.  Geswine  v.  Star  Bldg.  &  Loan  Co..  23 
Ohio  Clr.  Ct.  R.  477. 

64.  And  the  only  Interest  to  which  the 
association  is  entitled  is  the  surplus  of  the 
total  monthly  payments  for  the  specified 
period  over  the  principal  of  the  loan — West- 
ern Loan  .t  Sav.  Co.  v.  Desky,  24  Utah,  347, 
68   Pac.   141. 

65.  Boleman  v.  Citizens'  Loan  &  Bldg. 
Ass'n,    114   Wis.    247. 

66.  Caston   v.   Stafford,   92  Mo.  App.    182. 

67.  Such  an  agreement  by  a  member  of 
a  foreign  mntufil  loan  association,  held  to 
be  without  consideration  and  the  borrower's 
obligation  to  be  discharged  by  repayment 
of  the  loan,  with  interest — Kear  v.  Eastern 
Bldg.   &   Loan  Ass'n    (Neb.)    90  N.  W.   643. 

68.  Fines  may  be  embraced  in  a  verdict 
In  an  action  by  the  building  association 
against  the  member — Cottingham  v.  Equi- 
table Bldg.  &  Loan  Ass'n  (Ga.)  41  S.  E.  72, 
74.  His  connection  with  the  association  as 
a  stockholder  having  ceased  he  Is  no  longer 
liable  for  fines  for  non-payment  of  premiums 
— Kleimeir  v.  Covington  Perpetual  Bldg.  & 
Loan  Ass'n,  24  Ky.  Law  Rep.  735,  70  S.  W. 
41. 

69.  Loan  by  a  building  and  loan  associa- 
tion to  its  attorney — Arbuthnot  v.  Brook- 
field  Loan  &  Bldg.  Ass'n  (Mo.  App.)  72  S. 
W.  132. 

70.  If    he    assumes    performance     of    the 


grantor's  obligation  he  becomes  personally 
bound  and  his  notice  of  the  nature  of  his 
grantor's  obligation  is  not  limited  to  the 
recitals  in  the  deed  of  trust — Caston  v.  Staf- 
ford, 92  Mo.  App.  182.  One  to  whom  the 
mortgagor  has  conveyed  and  assigned  the 
mortgaged  stock,  cannot  on  failure  to  pay 
installments,  object  to  the  enforcement  of 
fines  provided  for  by  the  association  by- 
laws— Boleman  v.  Citizens'  Loan  &  Bldg. 
Ass'n,  114  Wis.  247.  Where  a  borrower  ex- 
ecutes a  mortgage  providing  for  usurious 
premiums,  the  grantee  of  the  mortgaged 
premises,  who  is  admitted  into  membership 
by  the  association,  may  have  credit  for  the 
usurious  payments  made  by  his  grantor, 
whether  he  has  agreed  to  assume  a  mort- 
gage debt  or  not — Middle  States  Loan  Bldg. 
&  Const.  Co.  V.  Baker,  19  App.  D.  C.  1.  A 
purchaser  of  property  who  assumes  payment 
on  a  building  and  loan  association  mort- 
gage as  part  of  the  purchase  price,  can  set 
up  a  defense  of  usury  or  have  premiums 
credited  to  the  principal  because  the  asso- 
ciation has  become  Insolvent — Deitch  v. 
Staub  (C.  C.  A.)  115  Fed.  309.  Where  the 
borrower  has  paid  usurious  interest,  one 
to  whom  he  has  conveyed  the  land  subject 
to  the  mortgage,  can  have  the  usurious  ex- 
cess applied  to  the  principal,  though  he  has 
no  such  rights  as  regards  excess  interest 
paid  by  himself — Irwin  v.  Washington  Loan 
Ass'n    (Or.)    71    Pac.    142. 

71.  The  by-law  asserted  was  passed  after 
the  loan.  Contracts  waiving  usury  are 
against  public  policy — Georgia  State  B.  & 
L.   Ass'n   V.    Grant    (Miss.)    34    So.    84. 


394 


BUILDING  AND  LOAN  ASSOCIATIONS. 


§  3B 


is  incorporated  and  has  its  home  oflBce,  if  the  subscription  to  stock  was  there  made 
and  payments  of  stock  instalments  and  interest  are  there  payable,"  and  if  the 
parties  to  the  contract  intended  that  there  should  be  no  violation  of  local  usury 
laws,  provisions  intending  to  make  the  contract  one  of  another  state  will  not  be 
regarded  as  for  the  purpose  of  enabling  a  violation  of  the  law;"  but  ^Mississippi 
holds  that  a  loan  contract  and  mortgage  is  governed  by  the  law  of  the  state  where 
the  property  is  situated,^*  and  is  not  freed  from  usury  by  the  fact  that  a  premium 
incidental  to  the  stock  contract  is  part  of  a  contract  separate  from  that  of  the  loan 
and  similar  to  those  used  in  the  state  of  the  corporation's  domicile  where  the 
by-laws  fixed  the  place  of  performance;^'  while  Nebraska  holds  that  a  foreign  build- 
ing and  loan  association  is  subject  to  its  usury  laws  and  that  a  premium  to  be 
paid  bv  taking  stock  in  a  foreign  corporation  which  has  not  complied  with  the 
state  laws  is  usurious.''® 

Where  a  foreign  association  makes  a  loan  and  stipulates  that  it  shall  be  with 
reference  to  the  law  of  the  state  of  its  domicile,  the  rule  as  to  accounting  in  such 
state  may  be  followed .'''  Mortgages  given  to  foreign  building  and  loan  associa- 
tions are  not  affected  by  subsequent  local  acts.''' 

Exemption  of  building  associations  from  general  usury  laws. — Building  and 
loan  associations  are,  by  statute  in  certain  states,  exempt-ed  from  the  usury  laws  f^ 


72.  Though  the  security  Is  situated  In 
another  state — Interstate  B.  &  L.  Ass'n  v. 
Edgefield  Hotel  Co.,  120  Fed.  422;  Alexander 
V.  Southern  Home  B.  &  L,.  Ass'n,  120  Fed. 
963;  Gale  v.  Southern  Bldg.  &  Loan  Ass'n, 
117   Fed.    732. 

73.  Provisions  will  not  be  regarded  as  for 
the  purpose  of  avoiding  the  law  of  Virginia 
which  are  for  the  purpose  of  making  the 
contract  an  Alabama  one.  If  It  was  expected 
that  the  stock  would  be  matured  at  such 
time  as  to  render  the  rate  of  interest  less 
than  that  allowed  by  the  laws  of  Virginia — 
Gale  V.  Southern  B.  &  L.  Ass'n,  117  Fed.  732. 

74.  National  Mut.  B.  &  L.  Ass'n  v.  Hulet 
(Miss.)  33  So.  3.  Interest  was  payable  to 
local  boards  in  the  state  where  the  property 
was  located  according  to  the  association's 
by-laws  and  was  held  to  be  governed  by 
the  local  laws  as  to  usury — Georgia  State 
B.  &  L.  Ass'n  V.  Shannon,  80  Miss.  642.  Con- 
tract for  a  loan  on  land  in  Mississippi  by 
an  association  having  no  office  or  general 
agent  In  the  state  but  with  special  agents 
in  various  towns  authorized  to  solicit  sub- 
scriptions for  stock,  take  application  for 
loans  and  receive  payments  of  dues.  Interest 
and  premiums — National  Mut.  B.  &  L.  Ass'n 
v.  Brahan.  80  Miss.  407.  A  contract  by  for- 
eign building  association  having  no  office 
or  general  agent  within  the  state  but  hav- 
ing provided  a  place  of  payment  of  loans 
within  the  state  and  estn^lished  a  local 
board,  making  Its  secretary  and  treasurer 
agent  to  receive,  payment,  is  regarded  as  a 
local  contract — National  Mut.  B.  &  L.  Ass'n 
V.    Farnham    (Miss.)    33   So.    2. 

75.  Georgia  State  B.  &  L.  Ass'n  v. 
Brown    (Miss.)    31    So.    911. 

76.  Contract  called  for  six  per  cent,  in- 
terest on  a  loan  of  $1,500  and  a  premium  of 
$1,500  to  be  paid  for  taking  stock  to  such 
amount  and  the  making  of  monthly  pay- 
ments thereon  of  $9  until  the  stock  ma- 
tured— Anselme  v.  American  S.  &  L.  Ass'n 
(Neb.)    92   N.    TT.   745. 

77.  Loan  by  Maryland  association  on  land 


in  the  District  of  Columbia;  adoption  of  thf 
Maryland  rule,  where  the  result  of  an  ac- 
counting in  the  District  is  found  to  be  the 
same — Middle  States  Loan,  Bldg.  &  Con- 
struction Co.  V.  Baker.  19  App.  D.  C.   1. 

78.  Kurd's  Rev.  St.  1901,  p.  479 — Carpen- 
ter V.  Welty.  101  111.  App.  58. 

Foreigrn  loans.  (Note.)  An  association 
which  loans  and  does  business  in  another 
state  may  therein  charge  no  higher  interest 
than  the  laws  of  such  state  permit.  If  it 
actually  makes  the  loan  in  a  state,  it  Is  of  no 
avail  that  the  contract  specifies  that  It  is 
subject  to  the  laws  of  a  foreign  domicile 
(Shannon  v.  Georgia  Building  Ass'n,  84  Am. 
St.  Rep.  657,  78  Miss.  955,  cited  In  note  to 
Floyd  V.  National  Loan  Co.,  87  Am.  St.  Rep. 
805.  826;  S.  C.  49  W.  Va.  327). 

AVhat  law  governs  in  determining  whether 
a  loan  by  a  foreign  building  association  la 
Ui«.nrious.  (Note.)  Though  there  is  some 
apparent  conflict  in  the  authorities  upon 
this  point,  the  true  answer  will  depend  on 
the  foreign  or  domestic  character  of  the 
loan  contract  and  the  question  whether  or 
not  it  was  designed  to  evade  domestic  usury 
laws.  It  was  held  that  where  the  loan  was 
in  fact  payable  in  the  state  of  the  borrow- 
er's residence,  it  was  to  be  regarded  as  a 
contract  of  that  state  and  governed  by  its 
laws;  hence  the  fact  that  the  contract  con- 
tained a  stipulation  for  payment  in  the  for- 
eign domicile  of  the  lender  was  of  no  avail 
to  make  such  contract  a  foreign  one  and 
thus  to  avoid  usury  laws  of  the  state  where 
the  payment  was  to  be  made  (Pacific  Sav- 
ings Co.  V.  Hill,  91  Am.  St.  Rep.  477,  40  Ore. 
280,  67  Pac.  103;  Hicinbothern  v.  Interstate 
Ass'n,  40  Ore.  511.  69  Pac.  1018).  See  dis- 
cussion of  these  cases  and  others  in  note  91 
Am.   St.   Rep.   484. 

79.  Under  Rev.  St.  1889.  §  2814,  Rev.  St. 
1899,  §  1364,  a  membership  and  stock  sub- 
scription contract  cannot  be  claimed  to  be  a 
fraud  on  the  usury  law — Stanley  v.  Verity 
(Mo.  App.)  73  S.  W.  727.  "Where  it  is  found 
on     foreclosure     that     the     mortgagee     is     a 


§  3B 


LOANS  AND  MORTGAGES. 


395 


interest  and  premmm  payments  together  piay  exceed  the  legal  rate;®"  and  such 
statutes  do  not  deny  the  equal  protection  of  the  laws,^^  interfere  with  property  righfs. 
or  grant  special  privilege.*^  Statutes  rendering  the  execution  of  premiums  and 
♦ines  nonusurious  do  not  validate  specific  reservations  of  interest  in  excess  of  the 
egal  rate.®^  The  use  of  a  form  of  contract  employed  by  building  and  loan  asso- 
ciations is  not  sufficient  to  show  a  loan  to  be  made  by  such  an  association.^* 

Premiums. — Premiums  for  a  loan  do  not  render  it  usurious/^  though  a  re- 
quirement of  a  payment  monthly  of  a  specified  sum,  called  premium,  in  addition 
to  a  legal  rate  of  interest,  is  void,*®  if  not  a  monthly  instalment  of  a  fixed  and 
determined  premium  for  the  loan,*''  A  statute  providing  that  a  borrower,  instead 
of  paying  the  entire  premium  in  advance,  may  pay  it  in  equal  monthly  or  other 
instalments,  does  not  authorize  other  than  a  fixed  and  definite  amount  of  pre- 
mium.*® If  by  statute,  establishment  of  a  fixed  premium  for  loans  is  authorized, 
one  who  borrows  at  less  than  the  premium  fixed,  though  in  addition  to  interest 
the  total  amounts  to  more  than  the  legal  rate,  cannot  claim  that  the  transaction 
is  usurious.*^  Contracts  in  which  a  gross  premium  is  deducted  from,  and  an  an- 
nual premium  made  payable  on,  a  loan  may  be  legalized  by  subsequent  statutes.^" 
Where  the  terms  of  a  loan  call  for  interest  at  a  certain  rate  and  premium,  the 
total  being  in  excess  of  the  statutory  percentage,  only  the  amount  named  as  in- 
terest may  be  exacted  by  the  association.'^  If  the  sum  of  premiums  and  instal- 
ments on  stock  is  in  excess  of  legalized  interest,  the  mortgage  is  usurious  only  a? 
to  excessive  payments.*^  The  extortionateness  of  a  premium  fixed  by  the  by-laM^s 
of  an  association  may  be  determined  by  the  courts.^^  Where  premiums  are  con- 
structively interest,  the  time  when  stock  is  to  mature  becomes  essential.^*  The 
legal  rate  of  interest  which  may  be  agreed  on  verbally  does  not  control  the  ques- 
tion of  usury  in  the  exaction  of  premiums  and  instalments  in  addition  to  a  rate 
named  in  the  bond.^"* 


homestead  loan  association.  It  may  take 
more  than  the  rate  of  Interest  otherwise  al- 
lowed  by   law — Collins   v.   Cobe.    202    111.    469. 

80.  Sanb.  &  B.  Ann.  St.  §  2013 — Bullman 
V.  Citizens'  L.  &  B.  Ass'n  (Vis.)  90  N.  W. 
199. 

81.  The  federal  court  held  that  the  stat- 
ute was  not  so  clearly  within  the  constitu- 
tional Inhibition  as  to  authorize  It  in  de- 
claring it  invalid  after  it  had  been  sus- 
tained by  the  state  supreme  court — Bran- 
don V.   Miller,    118   Fed.    361. 

82.  Rev.  St.  §  3836-3  does  not  violate 
Const,  art.  1,  §§  1,  2 — Spies  v.  Southern  Ohio 
L.  &  T.  Co.,  24  Ohio  Cir.   Ct.   R.   40. 

83.  Comp.  Laws,  §§  7581.  7584 — Estey  v. 
Capitol  Inv.  B.  &  L.  Ass'n  (Mich.)  9  Detroit 
Leg.   N.    424.    91   N.   W.   753. 

84.  For  the  purpose  of  preventing  the 
contract  from  being  vofd  by  usury  laws — 
Hyland  v.  Phoenix  Loan  Ass'n  (Iowa)  92  N- 
W.    63. 

85.  Savings  &  Loan  Association  Incor- 
porated under  laws  1851,  c.  122 — Roberts  v. 
Murray,   40  Misc.  Rep.   (N.  T.)    339. 

86.  On  accounting,  payments  so  made 
should  be  charged  as  on  account  of  the  prin- 
cipal debt — Middle  States  Loan.  Bldg.  & 
Construction  Co.  v.  Baker,  19  App.  D.  C.  1. 
A  contract  requiring  a  borrower  to  pay 
monthly  premium  and  dues  which  with  the 
Interest  on  the  loan  exceed  the  legal  rate  is 
usurious  (Laws  1886,  p.  35,  §§  1,  2) — National 
Mut.  B.  &  L.  Ass'n  v.  Pinkston,  79  Miss.   468. 


87.  Washington  Nat.  B.  &  L.  Ass'n  v.  An- 
drews,  95   Md.   696. 

88.  It  is  not  a  fixed  premium  to  require 
"no  more  than"  a  certain  number  of  fixed 
installments.  Construing  Code,  art.  23,  §  98, 
Acts  1894.  c.  321 — Washington  Nat.  B.  &  L. 
Ass'n  V.  Andrews,    95   Md.   696. 

89.  Cover  v.  Mercantile  Mut.  B.  &  L. 
Ass'n,    93   Mo.  App.    302. 

90.  Burns'  Rev.  St.  1901,  §  4463  (Horner's 
Rev.  St.  1897,  §  34061)— Racer  v.  Interna- 
tional B.  &  L.  Ass'n  (Ind.  App.)   63  N.  E.  772. 

91.  Bel.  &  C.  Ann.  Codes  &  St.  §  4595,  al- 
lows interest  at  the  rate  of  10  per  cent. 
The  contract  called  for  6  per  cent,  interest 
and  a  certain  amount  on  each  share  of  stock 
pledged.  Held,  that  the  association  was  en- 
titled to  interest  at  the  rate  of  6  per  cent, 
only — Hubert  v.  Washington  Nat.  Bldg.. 
Loan  &  Inv.  Ass'n   (Or.)   71   Pac.  64. 

92.  Irwin  V.  Washington  Loan  Ass'n  (Or.) 
71  Pac.  142. 

93.  Fixing  a  premium  of  forty  cents  per 
hundred  dollars  In  addition  to  interest  at 
7  1-5  per  cent,  is  not  extortionate — Cover  v. 
Mercantile  Mut.  B.  &  L.  Ass'n,  93  Mo.  App. 
302. 

94.  Evidence  as  to  the  time  of  maturity 
is  essential  where  It  Is  contended  that  a 
premium  deducted  as  an  entire  sum  from 
the  face  of  the  loan  Is  constructive  Interest 
because  not  fixed  by  competitive  bidding — 
Laidley  v.   Cram.    96  Mo.  App.   580. 

95.  Sums    withheld    whether    regarded    as 


396 


BUILDING  AND  LOAN  ASSOCIATIONS. 


§  3B 


Competitive  biddmg  to  determine  premiums. — The  policy  of  certain  states  now 
is  to  favor  fixed  rates  of  interest  and  premiums,'®  the  statutes  of  other  states  make 
a  premium,  over  the  legal  rate  of  interest,  not  fixed  by  competitive  bidding,  usuri- 
ous.®^ Premiums  not  fixed  by  competition  or  opportunity  therefor  are  regarded  as 
interest,  and  if  when  added  to  the  stipulated  interest  they  exceed  the  highest  legal 
rate,  the  loan  is  usurious,'^  and  the  excessive  premiums  will  be  applied  to  the 
principal.®® 

The  premium  paid  may  be  a  certain  per  cent  rather  than  a  stated  sum.^  The 
bidding  must  be  at  a  directors'  meeting  held  for  the  purpose,^  and  a  by-law  pro- 
viding a  fixed  minimum  premium  to  be  paid  in  advance  out  of  the  money  borrowed 
renders  a  loan,  made  thereafter  on  competitive  bidding,  usurious,^  though  the  pre- 
mium so  fixed  was  in  excess  of  the  minimum  amount.*  The  burden  is  on  the 
defendant  borrower  to  show  that  a  premium  was  not  fixed  as  required  by  statute." 

Statutes  authorizing  a  premium  to  be  agreed  on  without  bidding  do  not  au- 
thorize the  taking  of  two  premiums,  one  in  gross  and  one  payable  monthly.® 

The  stockholders  need  not  meet  whenever  a  loan  is  auctioned,  though  it  is 
provided  that  loans  shall  be  offered  at  open  meeting,  and  a  by-law  may  provide 
that  the  secretary  on  written  authority  may  bid  for  the  stockholder  and  a  bid 
in  writing  be  lawful.'' 

Application  of  usurious  payments. — If  the  contract  is  usurious,  the  borrower 
should  be  charged  with  the  amount  of  the  loan  and  credited  with  the  value  of  the 
stock  and  sums  paid  on  interest  and  premiums.^  He  is  entitled  to  credit  on  his 
loan  of  the  entire  amount  of  the  usurious  interest,  though  it  is  provided  that  a 
portion  of  such  payments  are  to  be  applied  to  the  operating  expenses  of  the  com- 
pany ;®  but  it  has  been  elsewhere  held  that  he  cannot  be  credited  with  payments 
on  the  expense  account  or  with  fines  and  withdrawal  fees^°  or  with  dividends,^^ 


actual  premiums  or  constructive  interest  are 
not  usurious  unless  the  entire  amount  ex- 
ceed the  rate  of  interest  which  may  be  con- 
tracted for  In  writing,  though  the  bond  In 
addition  provides  for  interest  at  five  per 
cent. — Laidley  v.  Cram.  96  ISIo.  App.   580. 

96.  Bullman  v.  Citizens'  L.  &  B.  Ass'n 
(Wis.)   90  N.  W.  199. 

97.  Trainor  v.  German  American  S.  L.  & 
B.  Ass'n,  102  111.  App.  fi04.  Rev.  St.  1889,  §§ 
2812,  2814 — Cover  v.  IMercantile  Mut.  B.  & 
L.  Ass'n,  93  Mo.  App.  302. 

98.  Laidley  v.  Cram.   96  Mo.  App.  580. 

99.  Moses  V.  National  L  &  L  Co.,  92  Mo. 
App.   484. 

1.  Comp.  Laws,  §§  7581,  7584 — Estey  v. 
Capitol  Inv.,  B.  &  L.  Ass'n  (Mich.)  9  Detroit 
Leg.   N.    424,   91   N.   W.   753. 

2.  Moses  V.  National  L  &  L  Co.,  92  Mo. 
App.   484. 

3.  The  by-law  w^as  passed  prior  to  Rev. 
St.  1899,  c.  1362 — Thudium  v.  Brookfield  L. 
&  B.  Co.    (Mo.   App.)    72   S.  W.   134. 

4.  Rev.  St.  18?9.  §  2812.  A  by-law  fixing 
a  minimum  premium  of  6  per  cent,  vitiates 
a  loan  though  the  premium  actually  received 
as  a  consequence  of  competitive  bidding  was 
25  per  cent. — Arbuthnot  v.  Brookfield  L  & 
B.   Ass'n    (Mo.   App.)    72   S.   W.    132. 

5.  Competitive  bidding — Deltch  v.  Staub 
(C.  C.  A.)  115  Fed.  309.  Evidence  that  the 
majority  of  loans  had  been  made  on  a  bid 
of  a  certain  amount  and  that  the  secretary 
stated  to  applicants  that  such  amount  with 
the  Interest  charged  would  probably  mature 
their  stock  within   a  certain   time,   that   the 


secretary  had  been  so  advised  by  an  actuary, 
that  such  were  the  usual  results,  that  this 
caused  many  of  the  bids  to  be  put  in  on 
that  basis,  but  that  no  rate  was  fixed  by 
the  directors  and  the  bid  was  left  to  the 
option  of  the  applicants,  does  not  show  that 
a  fixed  rate  of  interest  was  charged — Bull- 
man  V.  Citizens'  L.  &  B.  Ass'n  (Wis.)  90  N. 
W.   199. 

6.  Acts  1885,  §  6,  p.  S3,  required  competi- 
tive bidding  as  to  premiums.  Acts  1S97.  p. 
287,  provided  that  the  given  rate  of  premium 
might  be  agreed  on  without  bidding.  Held, 
that  the  latter  act  did  not  autliorize  the 
double  premium — International  B.  &  L.  Ass'n 
V.   Radebaugh    (Ind.)    64  N.   E.   604. 

7.  Directors  having  control  of  the  busi- 
ness with  power  to  enact  by-laws  provided 
by  by-laws  for  directors'  meetings  open  to 
all  stockholders  at  which  loans  were  to  be 
occasioned.  Construing  Sand.  &  B.  Ann.  St. 
§  2011 — Bullman  v.  Citizens'  L  &  B.  Ass'n 
(Wis.)    90   N.   W.    199. 

8.  People's  Bldg.,  Loan  &  Sav.  Ass'n  v. 
Marston  (Tex.  Civ.  App.)  69  S.  W.  1034.  A 
receiver  cannot  collect  either  costs  or  in- 
terest on  a  usurious  borrowing  contract 
and  the  borrower  should  be  credited  with  all 
dues  and  interest  paid — Carpenter  v.  Lewis 
(S.  C.)    43   S.   E.   881. 

9.  Middle  States  Loan,  Bldg.  &  Construc- 
tion Co.  V.  Baker.  19  App.  D.  C.  1. 

10.  Georgia  State  B.  &  L  Ass'n  v.  Grant 
(Miss.)    34   So.    84. 

11.  Where  the  loan  is  usurious,  the  bor- 
rower Is  entitled  to  be  credited  with  all  pay- 


§  3B 


LOANS  AND  MORTGAGES. 


397 


and  if  the  stock  contract  is  separate  from  that  for  the  usiirious  loan,  the  borrower 
may  be  credited  only  with  the  withdrawal  value  of  the  st«ck.^^ 

Settlements  waiving  usury. — A  change  in  the  form  of  the  usurious  contract, 
at  the  request  of  the  association,  to  make  it  in  accord  with  a  new  plan  of  doing 
business,  will  not  be  regarded  as  a  settlement  of  the  borrower's  claim  for  usury.^' 
One  who  has,  by  settlement,  participated  in  profits  arising  from  contracts  similar 
to  his  own,  cannot  claim  that  the  contract  and  settlement  is  usurious,^*  and  con- 
tracts may  be  purged  of  usury  in  equity  where  settlements  have  been  made  by  the 
parties  with  full  knowledge  of  their  rights.^'* 

Cancellation  of  contract. — Notice  of  desire  to  pay  a  loan  need  not  be  given 
before  suing  to  cancel  a  note  and  deed  of  trust  for  usury.^^  Where  it  is  desired 
to  avoid  a  loan  on  account  of  usury,  it  must  be  alleged  that  premium  is  contrary 
to  the  by-laws.     It  is  not  sufficient  to  allege  that  it  is  forbidden  by  the  statute.^^ 

Particular  contracts. — In  the  footnotes  are  given  contracts  regarded  as  usuri- 
ous,^* and  not  usurious.^"* 


ments,  whether  Indicated  as  premiums  or 
interest  as  payment  on  an  ordinary  6  per 
cent.  loan,  but  in  such  case  is  not  entitled  to 
dividends  on  the  stock — Kleimeir  v.  Coving- 
ton Perpetual  B.  &  L.  Ass'n,  24  Ky.  Law 
Rep.    735.    70   S.   W.    41. 

12.  Georgia  State  B.  &  L.  Ass'n  v.  Brown 
(Miss.)    31   So.   911. 

13.  The  new  contract  Included  all  money 
due  by  the  old  and  additional  repayment  and 
expense  charges — Hyland  v.  Phoenix  Loan 
Ass'n    (Iowa)    92   N.   W.   63. 

14.  Cover  v.  Mercantile  Mut.  B.  &  L.  Ass'n, 
93   Mo.   App.   302. 

15.  Equity  has  the  right  to  consider  the 
circumstances  attending  the  entire  matter 
as  w^ell  as  the  relation  and  rights  of  the 
parties — Tralnor  v.  German-American  S.  L. 
&   B.    Ass'n,    102    111.    App.    604. 

16.  Rev.  St.  1899,  §  1368,  does  not  require 
such  notice  though  a  balance  is  found  due 
the  association — Thudium  v.  Brookfleld  L. 
&  B.   Co.    (Mo.   App.)    72  S.   W.   134. 

17.  Under  statutes  construed  to  allow 
an  association  to  loan  on  a  fixed  premium, 
which  together  with  Interest  exceeds  the 
rate  that  others  may  charge-.-Gale  v.  South- 
ern B.  &  L.  Ass'n,  117  Fed.  732. 

18.  On  application  for  the  loan  of  $1,900, 
the  borrower  received  $1,710,  the  difference 
being  credited  to  the  private  account  of  the 
association  and  the  borrower  agreed  to  pay 
$12.35  per  month  stock  dues  and  $15.84  per 
month  interest  and  premiums.  Held,  that 
as  the  monthly  payments  of  $15.84  were  to 
be  regarded  as  interest,  they  exceeded  the 
statutory  rate  of  10  per  cent,  per  annum, 
the  sum  loaned  being  only  $1,710,  and  the 
contract  was  usurious — People's  Bldg.,  Loan 
&  Sav.  Ass'n  v.  Marston  (Tex.  Civ.  App.) 
69  S.  W.  1034.  The  contract  was  In  the 
nominal  sum  of  $1,500.  dated  June  14th,  the 
borrower  did  not  receive  a  first  payment  of 
$750  until  Sept.  23rd,  and  of  the  second  pay- 
ment on  December  23rd,  $171  was  reserved 
for  monthly  premiums  to  date — Hyland  v. 
Phoenix  Loan  Ass'n  (Iowa)  92  N.  W. 
63.  It  is  unconscionable  for  a  contract  to 
provide  that  the  borrower  should  repay  dou- 
ble the  amount  borrowed  together  with  In- 
terest, and  a  mortgage  securing  such  con- 
tract will  not  be  foreclosed.  At  the  time 
of   the    loan    the   borrower   purchased    stock 


to  the  amount  of  the  loan  and  Immediately 
reassigned  it  to  the  association  absolutely 
in  consideration  of  the  advancement,  "by 
way  of  anticipation  of  the  value  at  the  ma- 
turity" of  the  shares,  and  it  was  further 
provided  that  the  par  value  of  the  shares 
was  given  the  association  as  a  premium. 
The  borrower  was  required  to  pay  the  loan 
with  interest  in  seven  years  together  with 
the  entire  premium  if  the  stock  had  then 
matured,  and  if  it  had  not,  so  much  of  the 
premium  as  had  been  earned  or,  in  default 
of  such  payment,  to  keep  up  the  dues  on 
the  stock  until  it  matured,  in  addition  to 
the  payment  of  interest — Pacific  States  Sav., 
Loan  &  Bldg.  Co.  v.  Green.  114  Fed.  412.  It 
is  sufficient  to  authorize  a  submission  of  a 
question  as  to  whether  a  loan  obligation 
was  a  device  to  evade  usury  laws,  where 
a  contract  allows  receipt  of  full  interest 
on  the  principal  until  the  maturity  of  the 
stock  and  the  retention  of  all  payments  to 
such  time,  and  plaintiff  testifies  that  such 
payments  were  to  be  immediately  applied 
on  principal — M^'alter  v.  Mutual  Home  Sav. 
Ass'n  (Tex.  Civ.  App.)  68  S.  W.  536.  Suffi- 
ciency of  evidence  to  establish  that  con- 
tract was  a  device  to  cover  usury — Cotton 
States  Bldg.  Co.  v.  Rawlins  (Tex.  Civ.  App.) 
70  S.  W.  786.  Subscription  for  stock  and 
payment  of  premiums  at  the  time  of  renewal 
of  a  loan,  an  amount  of  stock  equal  to  the 
loan  having  been  subscribed  at  the  time 
of  the  original  loan,  is  regarded  as  a  mere 
pretext  for  usurious  interest — Kleimeir  v. 
Covington  B.  &  L.  Ass'n,  24  Ky.  Law  Rep. 
735,  70  S.  W.  41.  Sufficiency  of  evidence  to 
show  that  a  transaction  leading  to  a  loan 
w^as  free  of  fraud  and  without  concealment, 
though  usurious — Cover  v.  Mercantile  Mut. 
B.  &  L.  Ass'n,  93  Mo.  App.  302. 

19.  On  a  loan  of  $2,250,  the  borrower  paid 
10  per  cent,  premium,  also  $1.00  per  share 
premium  for  stock,  and  agreed  to  pay  month- 
ly $12.38  Interest  at  6  per  cent,  on  the  loan 
and  premium,  and  30c  per  share  or  $7.24  to 
be  applied  to  payment  of  the  stock.  Held, 
that  the  transaction  was  not  usurious — Hall 
V.  Stowell.  75  App.  Dlv.  (N.  Y.)  21.  Six  per 
cent.  Interest  together  with  premiums  of 
16  2-3c  a  month  on  each  $100  share,  dues  of 
50c  per  month,  and  fines  of  10c  per  month 
during  default   therein,   are   not   usurious   or 


398 


BUlLDlxNG  AND  LUAN  ASSOCIATIONS. 


§    301 


C.  Default  and  foreclosure. — A  provision  for  a  shorter  period  of  default  than 
indicated  by  statute  is  not  material  to  the  validity  of  a  mortgage  where  the  asso- 
ciation is  not  attempting  to  enforce  such  provision.-"  A  borrower  is  not  in  de- 
fault who  has  been  prevented  from  making  his  monthly  pa3Tnents  by  the  act  of 
the  association.-^  Where  the  borrower  defaults  he  should  be  credited  with  the  pres- 
ent value  of  his  stock,  and  for  such  purpose,  the  stock  will  be  regarded  as  equal  to 
the  sum  of  stock  payments  and  declared  dividends.^^ 

Foreclosure. — A  new  corporation,  assuming  the  liabilities  of  the  former  asso- 
ciation to  wliich  the  mortgagor  had  paid  his  dues  and  interest  for  about  4  years, 
may  foreclose  though  the  mortgage  was  not  given  to  it  originally.^^  The  associa- 
tion is  entitled  to  interest  and  monthly  premium  as  provided  in  the  contract  to 
the  time  of  decree.^*  Where  an  association  satisfies  a  decree  of  foreclosure  in 
consideration  of  an  execution  of  the  mortgage,  if  the  mortgage  is  void  the  satis- 
faction is  void.^^ 

Foreclosure  after  insolvency. — In  foreclosure  of  a  borrowing  member's  mort- 
gage by  receivers,  the  member's  claim  against  the  association  is  properly  left  unad- 
justed.^® Foreclosure  will  not  be  denied  because  dividends  to  which  defendants 
would  be  entitled,  are  not  yet  ascertained,^^  and  the  member  is  not  entitled  to  a 
computation  of  such  dividends.^^  The  mortgagor's  stock  should  be  sold  and  the 
proceeds  credited  on  the  debt  before  recourse  to  the  premises,^®  and  foreclosure 
will  not  be  awarded  where  the  payments  on  stock,  interest,  and  premiums  discharge 
the  debt  in  full.^°  The  stockholder  cannot  assert,  as  against  foreclosure  of  his 
mortgage,  that  the  association  was  improperly  managed  or  that  the  contract  was 
ultra  vires.^^  Dues  and  premiums  included  in  the  bond  should  not  be  made  part 
of  the  mortgage  debt.'* 

D.  Accounting  between  borrower  and  association.  1.  In  general. — The  bor- 
rower's liability  is  for  the  sum  loaned  with  such  interest  as  may  be  rightfully 
collected  under  the  contract.^^  The  by-laws  may  be  resorted  to  to  determine  the 
proportion  of   monthly  payments   to  be   applied  to   interest.^*     Interest  on   pro- 


unreasonable — Spies  V.  Southern  Ohio  L.  & 
T.  Co..  24  Ohio  Clr.  Ct.  R.  40.  A  borrower 
subscribed  for  30  shares  of  stock,  par  value 
$240  each  and  applied  for  a  loan  $7,200 
bidding  25  per  cent,  premium.  The  associa- 
tion withheld  the  premium,  $1,800  and  paid 
him  $5,400.  The  borrower  agreed  to  pay 
$30  monthly  installment  of  stock  and  also 
$30  monthly  Interest,  such  payments  to  be 
continued  until  the  stock  should  be  worth 
$240,  at  which  time  It  should  be  applied  to 
the  payment  of  the  loan  and  cancelled. 
Held  that  the  contract  was  not  usurious — 
Laldley  v.   Cram,   96  Mo.   App.   580. 

20.  Sand.  &  B.  Ann.  St.  §  2011 — Boleman 
V.  Citizens'  Loan  &  Bldg.  Ass'n,  114  Wis. 
217. 

21.  Home  Sav.  Ass'n  v.  Noblesville  Month- 
ly Meeting  of  Friends  Church  (Ind.  App.)  64 
N.  E.  478. 

22.  People's  Bldg..  Loan  &  Sav.  Ass'n  v. 
Gllmore    (Neb.)    90    N.    W.    108. 

23.  It  appeared  that  by  mortgagor's  con- 
sent the  assets  had  been  handed  over  to 
plaintiff  association,  and  that  he  was  rely- 
ing on  reimbursement  from  assets  of  which 
the  mortgage  In  question  was  part — Help- 
ing Hand  Bldg.  &  Loan  Ass'n  v.  Sarauelson, 
21   Pa.   Super.   Ct.   134. 

24.  It  Is  not  limited  to  the  legal  rate  of 
Interest    from    the    commencement    of    suit — 


P>.acer   v.    International    Bldg.    &   Loan   Ass'n 
(Ind.  App.)    63   N.   E.   772. 

25.  Kelso  v.  Oak  Park  Bldg.  &  Loan  Ass'n, 
99  111.  App.    123. 

26.  There  was  no  proof  as  to  the  value  of 
the  member's  stock,  or  as  to  the  probable 
dividend  which  would  be  paid  from  the  as- 
sets— Riggs  v.  Carter  (N.  Y.)  77  App.  Div. 
580. 

27.  Breed  v.   Ruoff,   173  N.  Y.   340. 

28.  The  bond  and  mortgage  obliged  the 
member  to  pay  the  principal  and  Interest 
of  the  loan  in  full — Hoagland  v.  Saul  (N.  J. 
Eq.)    53    Atl.    704. 

29.  The  stock  was  assigned  as  collateral 
to  the  mortgage — Hoagland  v.  Saul  (N.  J. 
Eq.)    53   Atl.    704. 

SO.     Meares  v.  Finlayson,  63  S.  C.  537. 

31.  Menominee  Loan  &  Bldg.  Ass'n  v. 
Lovell  (Mich.)  9  Det.  Leg.  N.  420.  91  N.  W. 
743. 

32.  Such  dues  and  premiums  being  part 
of  a  scheme  which  has  failed,  to  enable  the 
par  value  of  the  stock  to  be  applied  to  the 
payment  of  the  borrower's  debts  and  the 
redemption  of  the  non-borrowers'  shares — 
Hoagland   v.    Saul    (N.   J.    Eq.)    53   Atl.    704. 

33.  Interstate  Bldg.  &  Loan  Ass'n  v.  Hol- 
land  (S.  C.)   43  S.  E.   978. 

84.  The  mortgage  on  Its  face  did  not 
show   how  much   was   to   be  so   applied   on   a 


S  -5 


5D1 


ACCOUNTING  TO  BORROWER. 


399 


miuin  payments  should  not  be  credited  on  the  principal  if  not  usurious."  The 
member  should  not  be  allowed  interest  on  interest  rightfully  paid.^^  Interest  may 
be  charged  on  the  full  amount  of  his  loan  though  there  was  an  illegal  premium.^^ 
Where  there  is  a  tender  of  settlement  of  a  loan,  further  payment  of  interest  is 
released,^* 

Provisions  that  where  the  stock  held  as  security  is  matured,  the  total  payjnents 
of  instalments,  interest,  and  premiums  will  not  exceed  the  amount  of  the  advance 
together  with  interest  at  the  highest  legal  rate,  cannot  be  taken  advantage  of  by 
the  borrower  until  maturity  of  the  stock.^^  The  same  is  true  of  a  provision  in 
a  by-law  that  only  so  much  of  the  premium  collected  on  contracts  governed  by  laws 
that  limit  the  aggregate  amount  of  premium  and  interest  that  can  be  taken  on 
them  shall  be  taken  as  profits,  as  will  in  addition  to  the  interest  collected,  equal 
the  highest  legal  rate.*'* 

Payments  made  on  account  of  operating  expenses  should  not  be  credited  the 
loan,*^  or  admission  fees,  stock  dues  and  fines,*^  or  insurance  premiums  required 
by  the  contract.*' 

The  borrower  should  be  credited  with  the  withdrawal  value  of  his  stock  at 
time  of  the  loan  and  with  subsequent  payments  of  stock  dues,  interest,  and  pre- 
miums with  interest  from  the  time  of  payment.**  Where  credit  is  given  for  the 
amount  paid,  no  further  deduction  for  stock  should  be  made  on  an  accounting.*^ 
On  accoimting  between  a  foreign  association  and  a  borrowing  member,  the  bor- 
rower may  have  the  value  of  his  stock  credited  on  the  debt,  though  not  prior  to 
his  election,  and  if  there  is  no  evidence  of  its  actual  value,  stock  will  be  valued 
at  the  amount  actually  paid  on  it.  Dividends  earned  may  also  be  applied.*"  In- 
terest should  be  allowed  on  dues  from  date  of  payment.*^  The  withdrawal  value 
of  stock  of  a  stranger  cannot  be  applied  to  a  mortgage  debt  except  by  his  express 
direction.** 

The  stockholder,  seeking  accounting,  should  allege  that  his  stock  has  been 
brought  to  par  by  payment  of  monthly  dues,  thus  entitling  him  to  a  release  of 
his  deed  of  trust.*' 


sum      payable      monthly — ^Washlngrton      Nat. 
BIdgr.  &  Loan  Ass'n  v.  Andrews,  95  Md.  696. 

35.  McDowell  V.  Pioneer  Sav.  &  Loan  Co. 
(Neb.)    90   N.    W.    111. 

36.  In  computing  amount  due  on  with- 
drawal— Reitz  V.  Hayward  (Mo.  App.)  73  S. 
W.    374. 

37.  The  loan  was  subject  to  deduction 
of  $10  attorney's  fees  and  $16.50  premium, 
which  w^as  credited  on  the  loan — Reitz  v. 
Hayward   (Mo.  App.)    73   S.  W.  374. 

38.  Reitz  V.  Hayward  (Mo.  App.)  73  S.  W. 
374. 

39.  Stipulation  contained  in  the  bond  giv- 
ing the  stockholder  on  attempting  to  with- 
draw at  any  time  the  right  to  have  account 
taken  so  that  he  shall  only  pay  by  way  of 
Interest  the  highest  legal  rate — Georgia  State 
BIdg.  &  Loan  Ass'n  v.  Grant  (Miss.)  34  So. 
84. 

40.  Georgia  State  Bldg.  &  Loan  Ass'n  v. 
Grant    (Miss.)    34   So.   84. 

41.  McDowell  V.  Pioneer  Sav.  &  Loan  Co. 
(Neb.)   90  N.  W.  111. 

42.  Though  there  is  a  by-law  providing 
that  a  certain  amount  per  share  should  be 
set  aside  for  expenses,  since  the  borrower 
on  becoming  a  debtor  of  the  association  is 
no  longer  a  member — Interstate  Bldg.  & 
Loan  Ass'n  v.  Holland   (S.  C.)   43  S.  E.  978. 


43.  Alexander  v.  Southern  Home  Bldg  & 
Loan  Ass'n,  120  Fed.  963. 

44.  Interstate  Bldg.  &  Loan  Ass'n  v.  Hol- 
land  (S.  C.)    43  S.  E.   978. 

45.  Mercantile  Co-Operative  Bank  v. 
Schaaf  (Neb.)  89  N.  W.  990.  The  borrower 
is  not  entitled  to  credit  for  dues  and  also 
for  value  of  stock — Sappington  v.  Aetna  Loan 
Co.,  91  Mo.  App.  551. 

46.  McDowell  v.  Pioneer  Sav.  &  Loan  Co 
(Neb.)   90  N.  W.  111. 

47.  Sappington  v.  Aetna  Loan  Co.,  91  Mo. 
App.   551. 

48.  It  was  recited  in  a  quitclaim  deed 
from  the  association  that  the  grantee's  hus- 
band desired  to  withdraw  his  certificate 
and  that  it  should  be  applied  as  a  partial 
payment  on  the  debt  of  the  mortgagor.  In 
the  granting  clause  it  was  recited  that  in 
consideration  of  a  payment  of  a  sum  of 
money  and  of  the  "cancellation  of  said  cer- 
tificates," the  Interest  in  the  land  and  the 
mortgage  held  by  the  association  was  con- 
veyed. Held,  that  the  husband's  certificate 
was  withdrawn  in  consideration  for  the  deed 
and  was  not  to  be  applied  on  the  mortgage 
as  a  payment,  the  other  certificates  men- 
tioned being  those  of  the  mortgagor — Mc- 
Millan  V.  Craft,   135  Ala.   148. 

49.  Caston  v.  Stafford,   92  Mo.   App.   181. 


400 


BUILDING  AND  LOAN  ASSOCIATIONS. 


3D3 


The  adjustment  of  a  loan  and  acceptance  of  profits  due  a  borrowing  membei 
will  not  be  reviewed  in  an  action  to  settle  the  rights  of  the  parties  under  a  new 
loan  then  made.^**  A  mistaken  statement  to  a  stockholder  that  a  loan  was  fully 
paid  is  not  binding  where  immediately  recalled  before  intervention  of  added  rights.^^ 

2.  Rights  of  borrower  on  voluntary  liquidation. — Stockholders  are  account- 
ed with  on  the  same  principle  whether  the  association  is  solvent  or  insolvent  on 
voluntary  liquidation.^^  On  voluntary  liquidation,  a  borrowing  member  can  be 
credited  only  with  pa^Tnents  made  on  the  loan  specifically,  together  with  the  value 
of  the  shares  if  it  can  practically  be  determined  ;^^  he  is  not  entitled  to  damages 
for  failure  of  the  association  to  carry  out  the  contract,  and  should  be  credited  on 
liis  debt  only  with  payments  made  as  borrower.^* 

A  judicial  adjustment  may  be  demanded  by  a  borrowing  member  where  an 
association  on  notif}ang  him  that  it  has  decided  to  wind  up  its  affairs  refuses 
further  payment  under  the  contract  and  demands  pa\Tnent  of  a  certain  sum  largely 
in  excess  of  the  loan;  he  is  then  required  only  to  repay  the  loan  with  legal  interest 
less  premium  and  interest  paid,  and  cannot  be  required  to  continue  payments  un- 
der the  contract;  interest  at  the  legal  rate  is  to  be  charged  him  to  the  date  of  ad- 
justment of  the  claim  and  not  to  the  date  at  which  the  company  refused  pay- 
ments; and  the  association  cannot  complain  of  an  apportionment  of  payments  in 
a  manner  already  adopted  by  it  though  not  in  compliance  with  the  written  contract. 
The  court  should  fix  the  time  for  payment  of  the  amount  found  due  into  court 
and  make  provision  for  the  enforcement  of  a  mortgage  security.^^ 

3.  After  insolvency  of  association.  In  general. — On  receivership,  the  bor- 
rower need  not  comply  further  with  his  contract  but  there  must  be  an  equitable 
adjustment  with  the  association.^^  Limitations  of  the  right  to  demand  direct  pay- 
ments of  loans  before  the  member's  stock  matures  become  inoperative.'*'^  Where 
it  is  not  shown  that  the  association  was  insolvent  or  that  there  had  been  prior 
losses  at  the  date  of  termination  of  membership,  a  borrowing  stockholder  is  en- 
titled to  credit  for  ever}i;hing  paid  in  excess  of  a  legal  rate  of  interest,'*®  together 
with  such  payments  as  are  not  referable  to  the  stock."*®  A  mortgagor  is  entitled 
to  credit  for  interest  paid  an  association  to  be  paid  the  holder  of  a  prior  mort- 
gage and  wliich  has  not  been  so  paid,  if  an  inequality  of  the  final  distribution 
of  the  assets  of  the  association,  it  being  insolvent,  is  not  thereby  produced.^"     Lim- 


•50.  Calllson  v.  Trenton  Bldg.  &  Loan 
Ass'n   (Mo.  App.)   72  S.  W.   477. 

51.  Alexander  v.  Southern  Home  Bldg.  & 
Loan   Ass'n.    120    Fed.    963. 

62.  People's  Bldg.  &  Loan  Ass'n  v.  Mc- 
Fhlllamy  (Miss.)  32  So.  1001;  Same  v.  Hawks. 
Id. 

53.  He  l9  not  entitled  to  credit  of  the 
total  amount  paid  Including  stock  dues,  and 
if  the  value  of  the  shares  cannot  be  esti- 
mated he  must  wait  until  distribution  by 
the  receiver  before  receiving  their  value — 
PeoDle"s  Bldg.  &  Loan  Ass'n  v.  McPhlllamy 
(Miss.)    32   So.   1001:   Same  v.   Hawks,   Id. 

54.  On  adjusting  his  claim  a  special  con- 
tract as  to  monthly  payments  was  regard- 
ed as  abrogated  and  the  member  regarded 
simply  as  a  debtor — Home  Sav.  Ass'n  v.  No- 
blesville  Monthly  Meeting  of  Friends  Church 
(Ind.  App.)    66   N.  E.   465. 

55.  Home  Sav.  Ass'n  v.  Noblesville  Month- 
ly Meeting  of  Friends  Church  (Ind.  App.) 
66  N.   E.    465. 


56.  Hall  V.  Stoweli  (N.  T.)  75  App.  Div. 
21;  Riggs  V.  Carter  (N.  Y.)  77  App.  Div. 
580. 

57.  Western  Realty  &  Investment  Co.  v. 
Haase  (Conn.)  53  Atl.  861.  If  it  become 
necessary  by  reason  of  an  assignment  for 
benefit  of  creditors,  to  wind  up  the  associ- 
ation, a  borrower  cannot  complain  that  ma- 
turity of  his  loan  is  thereby  hastened — Cat- 
lett  V.  U.  S.  Bldg.  &  Loan  Ass'n's  Assignee, 
24    Ky.    Law    Rep.    200.    68    S.    "V^^    123. 

58.  The  only  evidence  of  losses  was  that 
the  assignee  for  the  benefit  of  creditors  of 
the  association  had  charged  off  sums  on 
account  of  uncollected  usury  and  that  there 
had  been  judgments  recovered  for  usury 
collected — Olliges  v.  Ky.  Citizens'  Bldg.  & 
Loan  Ass'n's  Assignee,  24  Ky.  Law  Rep. 
1954,    72    S.   "W.   747. 

59.  Hall  v.  Stoweli  (N.  Y.)  75  App.  Div. 
21. 

60.  Whitehead  v.  Commercial  Bldg.  & 
Loan  Ass'n    (N.    J.    Eq.)    53   Atl.    679. 


§  3D3 


ACCOUNTING  TO  BORROWER. 


401 


itation  of  an  action  to  recover  a  loan  to  a  borrowing  member  begins  to  run  at  the 
date  of  appointment  of  a  receiver  on  insolvency  of  the  association.^^ 

Credit  and  charges  for  premiums. — Payments  of  premiums  should  be  credited 
to  the  debt/-  without  interest.^^  The  member  cannot  be  charged  with  premiums 
to  be  paid.^*  A  stockholder  after  insolvency  is  not  entitled  to  credit  for  pre- 
miums paid  by  reason  of  a  provision  in  the  bond  that  on  final  settlement  the 
association  was  to  retain,  as  instalment  on  the  stock  and  interest,  no  more  than 
the  sum  actually  advanced  with  interest  at  a  stated  rate.®^ 

Credits  for  dues. — In  fixing  the  amount  due  on  a  mortgage  to  an  insolvent 
association,  the  stock  of  the  borrower,  or  payments,  fines,  dues,  or  penalties  thereon 
cannot  be  considered.^®  He  cannot  be  credited  on  the  debt  with  sums  paid  as  dues 
on  stock.®^  On  foreclosure  by  the  receiver,  they  cannot  be  taken  into  considera- 
tion, but  must  await  final  distribution.®*  The  borrower  is  not  entitled  to  credit 
though  before  the  assignment  she  has  taken  steps  to  have  the  dues  applied  to  the 
discharge  of  the  debt,  if  before  such  steps  were  taken  the  association  was  insolvent 
and  endeavoring  to  wind  up  its  affairs,®^  In  the  absence  of  fraud,  a  borrowing 
member  who  has  assigned  his  certificate  of  stock  as  security  cannot,  after  insolvency 
of  the  association,  have  his  payments  on  stock  credited  to  the  loan,  on  the  ground 
that  he  was  not  a  stockholder.'^" 

Credits  for  value  of  shares. — Provisions  for  final  settlement  with  borrowers 
may  be  made  the  basis  of  a  settlement  on  insolvency  of  the  association  before  the 
stock  matures.^^  Subsequent  insolvency  and  assignment  of  the  assets  of  the  as- 
sociation does  not  affect  the  withdrawing  member's  right  to  credit  for  the  value 
of  his  pledged  stack  and  dividends  already  declared. ^^  If  the  articles  of  the 
association  provide  that  obligations  due  it  may  be  canceled  by  applying  the  amount 
to  the  credit  of  all  shares  owned  by  the  borrower,  he  is  entitled  on  insolvency  of 
the  corporation  to  such  credit,  and  if  their  value  may  be  proximated,  they  may 
be  set  off  in  an  action  by  the  receiver  on  the  note,  though  it  is  difficult  or  impos- 
sible to  determine  their  exact  value.''*     Credit  to  be  allowed  on  shares  is  to  be 


61.  Contract  provided  that  the  loan 
should  be  repaid  at  a  future  time  and 
pledged  the  partly  paid  stock  as  security, 
stock,  to  be  paid  by  monthly  dues,  with  an 
alternate  provision  for  repayment  of  the 
loan  thereby — Clarke  v.  Caufman  (Kan.)  71 
Pac.   241. 

62.  Since  the  association  being  unable  to 
perform  its  part  of  the  plan  under  which 
they  were  paid,  they  are  without  considera- 
tion— Hoagland  v.  Saul  (N.  J.  Eq.)  53  Atl. 
704;  Roberts  v.  Murray  (N.  Y.)  40  Misc. 
Rep.   339. 

63.  Barry  v.  Friel,  114  Fed.  989. 

64.  Roberts  v.  Murray  (N.  Y.)  40  Misc. 
Rep.    339. 

65.  Alexander  v.  Southern  Home  Bldg.  & 
Loan  Ass'n,   120   Fed.   963. 

66.  Barry   v.    Friel,    114   Fed.   989. 

67.  In  an  action  by  the  assignee  of  the 
insolvent  association — U.  S.  Bldg.  &  Loan 
Ass'n's  Assignee  v.  Fitzpatrick,  24  Ky.  Law 
Rep.  222,  68  S.  W.  400;  Catlett  v.  U.  S.  Bldg. 
&  Loan  Ass'n's  Assignee,  24  Ky.  Law  Rep. 
200,  68  S.  W.  123.  The  condition  was  to  pay 
the  principal  in  six  months  with  interest  "to- 
gether with  all  dues  and  premiums  due  at 
the  expiration  of  each  month" — Hoagland 
V.  Saul  (N.  J.  Eq.)  53  Atl.  704;  Coltrane  v. 
Blake    (C.   C.   A.)    113   Fed.    785;    Andrews   v. 


Kentucky  Citizens'  Bldg.  &  Loan  Ass'n's  As- 
signee, 24  Ky.  Law  Rep.  966,  70  S.  W.  409; 
Whitehead  v.  Commercial  Bldg.  &  Loan 
Ass'n   (N.  J.   Eq.)    53  Atl.   679. 

68.  They  should  neither  be  charged  the 
member  or  set  off  against  the  loan — Roberts 
V.   Murray    (N.   Y.)    40  Misc.   Rep.   339. 

69.  Wills  V.  Paducah  Bldg.  &  Loan  Ass'n 
(Ky.)    67    S.    W.   991. 

70.  Monthly  payments  as  Interest  and 
payments  on  stock,  were  continued  for  more 
than  3  years — Stanley  v.  Verity  (Mo.  App.) 
73    S.    W.    727. 

71.  Where  the  bond  provided  that  on  final 
settlement  with  the  association.  It  should 
retain  as  Installment  on  the  stock  fftid  in- 
terest, no  greater  sum  than  the  amount 
actually  advanced  with  Interest  at  the  rate 
of  8  per  cent.,  final  settlements  should  be 
made  under  such  provision,  the  borrower 
being  charged  with  the  loan  and  interest 
and  credited  with  the  installments  of  stock 
and  interest  paid  as  partial  payments — In- 
terstate Bldg.  &  Loan  Ass'n  v.  Edgefield  Ho- 
tel Co.,  120  Fed.  422. 

72.  The  action  was  begun  before  insol- 
vency— Reitz  V.  Hayward  (Mo.  App.)  73  S. 
W.  374. 

73.  Robinson  v.  Spencer  (N.  Y.)  72  App. 
Div.    493. 


Cur.  Law — 26. 


402 


BUILDING  AND  LOAN  ASSOCIATIONS. 


§4 


computed  according  to  their  actual  value.  Statutory  notice  precedent  to  repay- 
ment of  a  loan  and  surrender  of  pledged  stock  may  be  waived,  though  a  with- 
drawing member  desiring  credit  on  account  of  stock  assigned  to  him  subsequent 
to  the  loan  must  have  given  notice  of  its  withdrawal.'^* 

Dividends  earned  prior  to  insolvency  should  be  credited  on  the  loan  of  a  with- 
drawing shareholder.'" 

§  4.  Termination  and  insolvency)  of  association. — The  court  of  an  insolvent 
association's  domicile  in  which  its  affairs  are  being  wound  up  is  a  court  of  primary 
jurisdiction,  and  the  courts  of  other  states  in  which  shareholders  and  assets  are 
located  should  remit  collections  made  by  them  in  either  ancillary  or  original  re- 
ceiverships to  the  domiciliary  court  for  equitable  distribution.''* 

Receivership. — AVhere  a  corporation  is  not  only  insolvent  but  its  business  has 
been  carelessly  managed,  its  affairs  ma/ be  wound  up  though  insolvency  alone  miglil 
not  be  sufficient  ground.'^''  Minority  stockholders  are  entitled  to  receivership  where 
the  assets  of  the  association  have  been  permitted  to  be  absorbed  by  a  competing 
company  and  its  affairs  so  managed  that  it  becomes  insolvent  and  they  may  have  the 
transaction  set  aside,^^  and  a  member  who  has  given  notice  of  withdrawal  may, 
notwithstanding,  sue  for  appointment  of  receiver  and  equitable  relief.^®  Where 
statutes  provide  that  a  receiver  shall  not  be  appointed  for  an  association  in  liquida- 
tion except  on  application  of  the  state  auditor,  a  receiver  cannot  be  appointed  in 
an  action  by  a  shareholder  though  the  association  went  into  liquidation  after  the 
action  was  begun.*" 

Insolvency  will  not  be  inferred  from  a  receivership.*^  Where  the  available 
assets  are  less  than  the  value  of  the  stock  paid  in,  the  association  is  insolvent.*^ 
In  computing  liabilities  shareholders  should  be  regarded  as  entitled  to  the  amounts 
they  have  paid  in,  without  deduction  of  expenses.*^ 

Eights  of  ivithdraicing  and  paid  up  shareholders. — Shareholders,  before  with- 
drawal claims  have  been  filed,  are  not  creditors,**  their  status  is  not  changed  by 
pajTnont  of  premiums  and  dues  in  advance,  notice  of  withdrawal  before  assign- 
ment, or  merging  of  claim  into  judgment;  nor  does  the  association  become  a  bor- 
rower from  a  stockholder  by  the  fact  that  the  amount  due  on  the  stock  was  in 
the  hands  of  the  association  at  the  time  of  assignment  and  after  a  demand  for 


74.  Notice  required  by  Rev.  St.  1899.  § 
1368,  is  w.iived  where  tlie  association  dis- 
putes merely  the  amount  owed — Reitz  v. 
Hayward    (Mo.  App.)    73  S.  W.  374. 

75.  Reitz  V.  Hayward  (Mo.  App.)  73  S. 
W.  374. 

76.  Whether  .such  courts  are  state  or  fed- 
eral— Southern  Bldg.  &  Loan  Ass'n  v.  Mil- 
ler (C.  C.  A.)    118  Fed.  369. 

77.  P.  L.  1899,  p.  366,  provides  that  an  In- 
junction against  further  operation  and  the 
appointment  of  a  receiver  may  be  had  where 
the  association  is  insolvent,  exceeding:  its 
powers,  or  violating  the  law;  or  where  its 
methods  of  business  or  continuation  render 
its  further  operation  hazardous  to  the  pub- 
lic or  those  whose  funds  it  has  in  custody; 
and,  in  the  case  at  bar,  it  appeared  that  the 
association  had  been  running-  8i^  years,  was 
insolvent,  its  withdrawals  large,  expenses 
extravagant,  investments  careless,  and  there 
was  no  probability  of  maturing  the  shares 
within  reasonable  time.  The  association  had 
been  compelled  to  take  property  to  an  amount 
more  than  the  first  mortgage  securities  to 
prevent  losses  on  loans — Settle  v.  Republic 
Sav.   &  Loan  Ass'n,   63  N.   J.  Bq.  578. 


78.  Continental  Nat.  Bldg.  &  Loan  Ass'n 
v.   Miller    (Pla.)    33    So.    404. 

79.  The  association  had  failed  to  set  apart 
a  fund  to  pay  withdrawing  members  and 
other  actions  of  the  directors  justified  the 
proceeding — Continental  Nat.  Bldg.  «&  Loan 
Ass'n  V.  Miller   (Fla.)    33  So.  402. 

80.  Construing  Burns'  Rev.  St.  1901,  §§ 
4477.  4479;  Horner's  Rev.  St.  1901.  §§  342011, 
3420kk;  Acts  1899.  p.  84.  §  8;  Burns'  Rev. 
St.  1901,  §  4463h;  Horner's  Rev.  St.  1901.  § 
3406h — Huntington  County  Loan  &  Sav. 
Ass'n   v.   Fulk,    158   Ind.   113. 

81.  In  a  bill  for  an  accounting  on  a  loan 
where  insolvency  Is  not  alleged — Caston  v. 
Stafford,    92   Mo.   App.   182. 

S3.  Where  stockholders  cannot  be  paid 
the  full  amount  of  their  contributions — 
Continental  Nat.  Bldg.  &  Loan  Ass'n  v.  Mil- 
ler   (Fla.)    33    So.    404. 

83.  Sufficiency  of  evidence  of  Insolvency 
— Bettle  V.  Republic  Sav.  &  Loan  Ass'n,  63 
N.   J.   Eq.   578. 

84.  Bettle  v.  Republic  Sav.  &  Loan  Ass'n, 
63   N.   J.   Eq.    578. 


§  4 


TERMINATION  AND  INSOLVENCY. 


403 


payment.®''  Notice  of  withdrawal  does  not  give  a  preference  over  other  members 
on  distribution  of  assets  in  insolvency,  against  express  provisions  of  the  by-laws/* 
or  if  the  association  is  insolvent  before  withdrawal  is  accomplished;*'  but  where 
the  holder  of  matured  shares  surrenders  them  and  causes  his  certificate  to  be  can- 
celed, though  he  allows  the  amount  due  to  remain  with  the  association,  his  claim 
is  entitled  to  preference  over  those  whose  stock  has  not  matured  at  the  time  of 
insolvency,^*  and  shareholders,  who  are  issued  certificates  of  indebtedness  on  with- 
drawal, obtain  preference  over  other  shareholders.**  Holders  of  fully  paid  stock 
have  no  preference  on  insolvency  over  other  stockholders,*"  being  regarded  as  share- 
holders and  not  creditors;*^  but  in  Georgia  it  is  held  that  the  holder  of  fully  paid, 
dividend-guaranteed,  nonparticipating  stock,  is  to  be  regarded  as  a  creditor.*^ 

A  pledge  of  secureties  to  secure  preferred  shares  of  fully  paid  fixed  dividend 
stocks  may  be  enforced  on  insolvency,  there  being  no  general  creditors.*^ 

Rights  of  officers. — Directors  are  not  deprived  of  their  rights  as  creditors  in 
the  assets  of  the  association  because  they  have  borrowed  money  beyond  its  legal 
capacity,  nor  is  it  gross  negligence,  raising  such  penalty,  for  them  to  mature  stock 
after  reports  by  duly  appointed  committees  as  to  the  financial  condition  of  the 
association  and  with  the  advice  of  counsel,"*  where  there  was  insufficient  evidence 
to  charge  them  with  its  insolvency."* 

Voluntary  liquidation. — The  question  of  whether  a  voluntary  liquidation  is 
or  is  not  an  administration  suit  does  not  alter  the  rule  of  distribution  among  stock- 
holders."" 


85.  The  stockholrler  Is  not  thereby  given 
preference  over  other  stockholders  and  the 
sole  effect  of  the  judgment,  is  to  fix  the 
amount  on  which  she  will  receive  pro  rata 
distribution  In  the  insolvency  proceedings 
after  dues  are  paid — Manheimer  v.  Hender- 
son Bldg.  &  Loan  Ass'n's  Assignee,  24  Ky. 
Law     Rep.   1816,   72   S.   W.   313. 

80.  Coltrane  v.  Blake  (C.  C.  A.)  113  Fed. 
785. 

87.  Though  such  fact  was  unknown  to 
the  shareholder — Reitz  v.  Hayward  (Mo. 
App.)  73  S.  W.  374.  If  30  days'  notice  is 
required  by  the  by-laws  in  order  that  paid 
up  stock  may  be  withdrawn,  in  order  that 
the  status  of  the  shareholder  be  changed, 
notice  must  be  given  more  than  30  days 
before  insolvency  proceedings — Coltrane  v. 
Blake   (C.  C.  A.)    113   Fed.   785. 

88.  Jones  v.  Brennan,  100  III.  App.  153; 
Gallagher  v.  Brennan,    99   111.  App.   81. 

89.  Bates  V.  American  Bldg.  &  Loan  Ass'n 
(C.  C.  A.)  120  Fed.  1018;  Reed  v.  Solomons, 
Id.;  Solomons  v.  American  Bldg.  &  Loan 
Ass'n,   116   Fed.   676. 

90.  The  only  difference  between  the  two 
classes  of  stoclc  w^as  that  the  holders  of  the 
fully  paid  received  interest  by  a  fixed  divi- 
dend at  stated  periods  instead  of  a  propor- 
tionate share  of  the  profits — Coltrane  v. 
Blake  (C.  C.  A.)  113  Fed.  785;  Bates  v.  Amer- 
ican Bldg.  &  Loan  Ass'n  (C.  C.  A.)  120  Fed. 
1018;  Reed  v.  Solomons,  Id. 

91.  Solomons  v.  American  Bldg.  &  Loan 
Ass'n,  116  Fed.  676;  Coltrane  v.  Blak'  'C. 
C.  A.)    113   Fed.   785. 


92.  Though  the  right  to  payment  Is  not 
absolute  until  after  a  stated  period  and 
specified  notice  and  sufficient  assets  have 
been  received  from  a  specific  source  to  make 
full  payment — Cashen  v.  Southern  Mut.  Bldg. 
&   Loan   Ass'n   (Ga.)    41   S.   E.   51. 

93.  The  corporation,  having  power  to 
borrow  money  and  mortgage  the  corporate 
property,  issued  prepaid  shares  bearing  a 
fixed  dividend  out  of  the  profits.  The  hold- 
ers of  such  share  had  no  vote  and  the  pro- 
ceeds became  part  of  the  fund  to  be  loaned 
to  borrowing  shareholders.  Held,  that  the 
prepaid  shareholders  were  entitled  to  a 
preference  as  against  other  shareholders  In 
notes  and  mortgages  payable  to  the  associ- 
ation placed  in  trust  for  the  payment  of 
principal  and  dividends  of  the  prepaid  shares 
— Wilson   V.   Parvin    (C.   C.   A.)    119   Fed.   652. 

94.  It  is  not  shown  that  the  money  did 
not  go  to  the  association  or  to  what  extent 
there  was  negligence,  if  any — Common- 
wealth V.  Anchor  Bldg.  &  Loan  Ass'n,  20  Pa, 
Super.  Ct.  101. 

95.  The  evidence  of  the  directors  was  not 
contradicted  that  the  first  intimation  they 
had  of  financial  difficulty,  was  an  exam- 
ination by  bank  examiners  and  the  reports 
of  committees  for  the  examination  of  the 
financial  affairs  of  the  association  had  uni- 
formly shown  it  to  be  solvent — Common- 
wealth V.  Anchor  Bldg.  &  Loan  Ass'n,  20 
Pa.   Super.   Ct.    101. 

96.  People's  Bldg.  &  Loan  Ass'n  v.  Mc- 
Phillamy  (Miss.)  32  So.  1001;  Same  v.  Hawks, 
Id. 


404 


BUILDINGS. 


§1 


BUILDINGS. 


§  1.     Public  Regiilatlon. 

§  2.  Private  Regulation. — Covenants  as  to 
Character    of    Buildings;    Building    Lines. 

§  3.  LiaMIlty  for  Unsafe  Condition  of 
Premises. — Notice;     Invitation     or      License; 


Falling  Materials;   Contributory  Negligence; 
Actions. 

4.     Liability    for    NesHgrent    Operation    of 
E^Ievators. — Care       Required;       Contributory 

Negligence;  Actions  for  Injuries. 


§  1.  Public  regulation. — Under  general  powers,  a  city  cannot  compel  build- 
ings in  a  certain  locality  to  conform  to  a  certain  standard.^  The  right  to  regulate 
does  not  carry  a  right  to  condemn  without  inspection.^  An  ordinance  may  provide 
that  in  the  business  portion  of  a  city  no  stationary  or  swinging  sign  or  awning 
sliod  shall  be  erected  across  the  sidewalk.^  A  city  cannot  allow  the  projection  of  a 
building  over  the  sidewalk  so  as  to  impair  the  public  use  of  the  street  or  the 
passage  of  light  and  air  to  adjacent  buildings.*  An  encroachment  of  a  building  on 
the  sidewalk  is  a  public  nuisance  whether  the  encroachment  is  for  ornament  or 
utility.^ 

Building  inspectors  are  not  included  in  an  ordinance  relating  to  the  appoint- 
ment of  janitors,  engineers,  or  other  persons  by  the  commissioner  of  public  build- 
ings.^ 

Precautions  against  fire  and  other  casualty. — A  statute  providing  for  the  pro- 
vision of  fire  escapes  may  impose  a  duty  on  the  owner  independent  of  the  action 
of  the  municipal  officer  or  fire  engineer.^  Where  lights  are  required  to  be  maintained 
in  hallways  without  outside  window  openings,  windows  opening  into  an  air  shaft, 
or  a  skylight  at  the  top  of  the  house,  are  not  outside  openings.^  Cutting  a  door 
into  a  theatre  entrance  comes  within  an  ordinance  concerning  such  entrances.* 

§  2.  Private  regulation.  Covenants  as  to  character  of  buildings. — Where 
there  are  express  restrictions  in  deeds  as  to  the  character  of  buildings,  the  vendee 
will  not  be  bound  by  parol  restrictions  unless  he  is  shown  to  have  had  notice  of  them 
before  payment  for  the  property.^"  Covenants  for  the  erection  of  dwellings  of  a 
specified  character  and  location  run  with  the  land  and  the  fact  that  a  street  subse- 


1.  A  power  to  make  building  regulations 
guarding  against  danger  from  unsafe  con- 
struction, and  to  pass  ordinances  for  the 
preservation  of  order  and  protection  of 
rights  and  privileges  from  encroachment  or 
for  the  maintenance  of  peace,  good  govern- 
ment and  welfare,  does  not  authorize  an 
ordinance  allowing  the  refusal  of  a  build- 
ing permit  if  the  proposed  building  does 
not  conform  to  the  general  character  of  the 
buildings  erected  In  the  locality  and  ■will 
tend  to  depreciate  the  value  of  surround- 
ing property.  Construing  Baltimore  City 
Charter,  Acts  1898,  c.  123.  that  a  similar 
ordinance  passed  prior  to  the  charter  was 
not  rendered  valid  by  the  section  of  the 
new  charter  ratifying  all  ordinances  not  In- 
consistent with  the  charter — Bostock  v. 
Sams,   95  Md.   400. 

2.  A  statute  allowing  cities  of  the  first 
class  to  regulate  the  management  and  In- 
spection of  elevator  hoist  ways  and  elevator 
shafts,  does  not  allow  a  city  to  condemn  an 
entire  class  of  elevator  appliances  and  re- 
quire their  removal  without  inspection  and 
by  a  general  regulation — Act  Pennsylvania, 
May  5th.  1899 — Richmond  Safety  Gate  Co. 
V.  Ashbridge,  116  Fed.  220. 

3.  Such  an  ordinance  Is  not  an  unlaw- 
ful invasion  of  the  rights  of  an  abutting 
owner,   is   not  special   or   discriminatory  and 


its   reasonableness    will    be-  presumed — Ivlna 
v.  Trenton  (N.  J.  Sup.)  53  Atl.  202. 

4.  Ordinance  authorizing  the  construc- 
tion of  a  bay  window  projecting  18  inches 
over  the  sidewalk,  held  invalid — John  Anis- 
fleld  Co.  v.  Grossman,  98  111.  App.  180. 

5.  Pillars  22  inches  in  the  street  may  b« 
enjoined  by  an  adjoining  owner — First  Nat. 
Bank  v.  Tyson,  133  Ala.  459. 

6.  See  for  construction  of  the  municipal 
Code  and  St.  Louis  City  charter  as  to  the 
right  of  a  commissioner  of  public  buildings 
to  remove  the  building  Inspectors  appointed 
by  him — State  v.  Longfellow,  93  Mo.  App. 
364. 

7.  Rev.  St.  c.  26,  §  26,  as  amended  by 
Pub.  Laws  1891.  c.  89 — Carrigan  v.  Stillwell, 
97  Me.  247. 

8.  Laws  1897,  p.  474,  c.  378,  §  1320 — 
Bretsch  v.  Plate,  115  N.  Y.  St.  Rep.  868. 

«.  Cutting  of  a  door  in  a  partition  be- 
tween a  store  and  the  entrance  of  an  ad- 
joining theatre  without  a  permit  from  the 
building  inspector,  is  a  violation  of  building 
regulations  1897,  §  182,  as  to  theatre  en- 
trances and  also  of  section  20  requiring  tha 
building  inspector  to  determine  whether  a 
formal  permit  is  necessary  for  an  Intended 
repair  to  a  building — Mertz  v.  District  of 
Columbia,   18  App.  D.  C.  434. 

10.  Standard  L.  &  B.  Co.  v.  Schanz  (N. 
J.  Ch.)  61  Atl.  620. 


§2 


PRIVATE  REGULATION. 


405 


qnently  becomes  a  business  street  does  not  prevent  the  covenantee  while  occupying 
her  residence  as  a  dwelling  from  enforcing  the  covenant/^  but  a  provision  in  a 
deed  that  a  house  erected  on  the  lot  sold  should  not  be  of  more  than  certain  dimen- 
sions does  not  create  an  easement  in  favor  of  an  adjoining  owner  entitling  him  to 
insist  that  no  different  building  shall  ever  be  erected  on  the  lot  conveyed.^^  A 
covenant  against  the  erection  of  tenement  houses  does  not  forbid  the  erection  of 
a  modern  apartment  house/^  nor  does  a  covenant  in  a  deed  for  the  erection  of  a 
first  class  dwelling  house  ;^*  but  a  covenant  similar  to  the  latter  prohibits  erection 
of  a  photograph  gallery.^"^ 

Building  lines. — Provisions  in  deeds  controlling  the  erection  of  buildings  are 
to  be  strictly  construed  against  the  grantor.^®  Acceptance  of  a  street  by  the  public 
is  an  acceptance  of  the  easement  created  by  a  building  line  established  in  a  plat. 
One  owner  can  be  compelled  to  observe  a  building  line  though  other  owners  have 
violated  it.^^  Grantees  of  adjoining  lots  cannot  enforce  a  covenant  against  building 
within  a  certain  line.^^  The  enforcement  of  a  covenant  establishing  a  building  line 
may  be  rendered  inequitable  by  changing  circumstances/^  or  the  restriction  may  ex- 
pire with  other  limitations  in  the  deed.^° 


11.  A  covenant  that  the  grantor,  her 
heirs  or  assigns,  In  the  case  of  improve- 
ment of  adjoining  lots,  ■would  erect  one  oi 
more  first-class  dwelling  houses,  the  frontp 
of  which  would  be  on  a  line  referred  to 
runs  with  the  land  and  is  binding  on  a  sub- 
sequent grantee  of  such  adjoining  lots  with 
notice,  arid  one  who  acquires  title  to  such 
lots  ill  partition  is  bound  by  notice  of  the 
covenant  obtained  from  the  record  of  the 
deed — Holt  v.  Fleischman,  75  App.  Div.  (N. 
Y.)    593. 

13.  Boston  Baptist  Social  Union  v.  Trus- 
tees of  Boston  University  (Mass.)  66  N.  E. 
714. 

13.  Notwithstanding  Laws  1867,  c.  908,  § 
17,  declares  that  a  tenement  house  includes 
every  house  occupied  as  a  residence  of  more 
than  three  families,  living  independently 
and  doing  their  own  cooking,  and  a  cove- 
nant against  the  erection  of  a  tenement 
house,  contained  in  a  deed  executed  in  1873. 
is  not  violated  by  the  erection  of  a  seven 
story  apartment  house  containing  two  sep- 
arate apartments  on  each  floor — Kitchings 
v.  Brown,  37  Misc.  Rep.  (N.  Y.)  439;  White 
V.  Collins  Bldg.  &  Const.  Co.,  82  App.  Div. 
(N.   Y.)    1. 

14.  Holt  V.  Fleischman,  75  App.  Div.  (N. 
Y.)   593. 

15.  A  photograph  gallery  Is  within  the 
meaning  of  a  restriction  that  nothing  but 
a  two  story  dwelling  house  costing  riot 
less  than  $3,000  with  a  brick  or  stone  found- 
ation and  set  not  less  than  twenty  feet  from 
the  sidewalk  should  be  erected  on  a  lot 
conveyed — Frink  v.  Hughes  (Mich.)  10  De- 
troit   Leg.    N.    106,    94    N.    W.    601. 

16.  A  deed  conveying  property  provided 
that  no  building  should  be  erected  nearer 
a  certain  street  than  the  building  directly 
south  of  the  property  conveyed.  The  gran- 
tor did  not  own  the  property  south  but  had 
conveyed  it  to  his  daughter.  Held,  that 
it  did  not  sufficiently  appear  that  the  re- 
striction was  for  the  benefit  of  the  daugh- 
ter's lot  to  allow  it  to  be  enforced  by 
her — Hays  v.  St.  Paul  M.  B.  Church.  196  111. 
633. 


17.  The  establishment  of  a  building  Hne 
s  sufl^cient  where  the  plat  shows  a  street 
ind  a  dash  line  parallel  tliereto  upon  which 
ire    the    words,    "Building    line    50    ft.    from 

he  boulevard  line,"  and  the  reservation  is 
for  the  benefit  of  the  public  and  property 
vbutting  on  the  street,  and  it  Is  unneces- 
sary to  expressly  mention  grantees  or  donees 
of  the  easement  in  the  plat,  or  to  refer  to 
the  reservation  in  deeds  made  by  the  owner 
in  order  to  bind  persons  holding  under  them 
by  the  restriction — Simpson  v.  Mikkelsen, 
196   111.   575. 

18.  Held,  that  a  subsequent  purchaser  of 
an  adjacent  lot  and  a  portion  of  the  lot 
subject  to  the  covenant  did  not  revive  the 
easement  by  a  conveyance,  the  adjacent  lot 
having  been  taken  from  the  original  gran- 
tor free  from  the  covenant — Schwoerer  v. 
Leo,    39    Misc.    Rep.    (N.    Y.)    505. 

19.  A  covenant  prohibiting  the  erection 
of  any  dwelling-house  nearer  than  twenty 
feet  to  the  street,  will  not  be  enforced  where, 
at  the  time  the  deed  was  executed,  the 
property  was  in  the  suburbs  and  neighbor- 
ing houses  were  detached  and  set  back  some 
distance  from  the  street,  and  since  that 
time  the  character  of  the  surrounding  prop- 
erty has  changed,  an  orphan  asylum  and  a 
brewery  have  been  erected  on  neigliboring 
blocks,  a  street  car  line  built  and  a  flat 
building  three  stories  high  placed  on  the 
street  line  directly  opposite — Roth  v.  Jung, 
79  App.  Div.  (N.  Y.)   1. 

20.  A  condition  in  a  deed  that  no  building 
of  less  than  a  certain  value  shall  be  erect- 
ed, that  all  buildings  shall  be  set  back  from 
the  street  a  certain  distance  and  that  no 
building  shall  be  used  for  a  livery  stable 
or  tenement  house  or  for  any  manufactur- 
ing purpose  for  the  period  of  ten  years,  is 
governed  by  the  time  limitation  as  to  all 
the  restrictions  and  becomes  inoperative  as 
to  the  building  lines  after  ten  years — Best 
V.  Nagle,   182  Mass.   495. 

Kqultable  enforcement  of  building  restric- 
tions. (Note.)  The  right  to  enforce  a  cove- 
nant concerning  the  use  to  which  land  shall 
be  put  may  be  enforced  In  equity,  though  It 


40,6 


BUILDINGS. 


§  3 


§  3.  Liability  for  unsafe  condition  of  premises.-'^ — A  building  so  erected  that 
fE  accimnilates  ice  and  allows  it  to  fall  on  adjacent  projjcrty  is  a  nuisance  which 
may  be  enjoined."^  Both  the  owner  and  contractor  are  liable  under  a  building 
contract,  the  performance  of  which  as  planned  will  injure  third  persons,  but  the 
owner  is  not  liable  where  the  execution  of  the  plan  will  not  necessarily  cause  the 
injury,  but  it  results  from  the  negligence  of  the  independent  contractor.^'  The 
owners  of  a  building  are  not  responsible  for  injuries  to  employes  by  a  person  con- 
tracting to  rearrange  it  according  to  fixed  plans,-*  though  they  have  been  held  liable 
to  an  employe  of  a  contractor  for  the  painting  of  an  elevator  shaft,  who,  while  within 
tlie  shaft,  is  struck  by  a  weight  of  the  elevator,  the  owners  having  used  the  elevator 
without  warning.^'* 

Notice. — Possession  of  the  means  of  knowledge  of  the  dangerous  condition  of 
premises  and  negligently  remaining  ignorant  is  equivalent  to  actual  knowledge.^^ 

Invitation  or  license  to  use  dangerous  place. — A  mere  license  to  enter  on  prem- 
ises does  not  impose  any  obligation  to  provide  against  injuries  or  accidents  arising 
from  the  existing  condition  of  the  premises,^^  but  a  person  wdio  is  on  the  premises 
with  the  permission  of  the  owner  on  business  for  their  mutual  benefit  is  not  a  mere 
licensee,-^  and  a  merchant  must  protect  a  customer  from  the  unsafe  condition  of  a 


be  not  a  covenant  such  as  runs  with  the  land 
(Tulk  V.  Moxhay,  2  Phillips.  774;  Whitney 
V.  Union  R.  Co..  11  Gray  [Mass.]  359,  71  Am. 
Dec.  715).  Some  American  cases  base  the 
right  on  the  theory  that  an  easement  is 
created  by  the  covenant,  which  theory  is 
criticised  by  Mr.  Tiffany  (Tiff.  Real  Prop.  p. 
763).  Agreements  which  are  so  enforced 
are  usually  restrictive,  relating  to  the  char- 
acter of  business  to  be  transacted  (McMa- 
hon  V.  Williams.  79  Ala.  2S8;  Post  v.  Weil. 
115  N.  Y.  361)  or  to  use  for  building  (Peck 
V.  Conway.  119  Mass.  546)  or  for  residence 
purposes  (Trustees  v.  Lynch,  70  N.  T.  440), 
or  establishing  building  lines  (Ogontz  Co.  v. 
Johnson.  168  Pa.  St.  178;  Linzee  v.  Mixer,  101 
Mass.  512),  or  fixing  a  minimum  cost  of  build- 
ings (Page  V.  Murray,  46  N.  J.  Eq.  325)  or 
style  of  construction  (Keening  v.  Ayling. 
126  Mass.  404).  But  agreements  not  restrict- 
ive have  been  enforced  (Carson  v.  Percj',  57 
Miss.  97;    Sharp  v.   Cheatham,   88  Mo.  498). 

Jurisdictions  differ  as  to  whether  an  own- 
er may  enforce  such  agreements  when  he  is 
only  Indirectly  benefited  by  them.  Affirma- 
tive Is  New  York.  (Hodge  v.  Sloan,  107  N. 
Y.  244.  Contra,  Norcross  v.  James,  140  Mass. 
188;    Brewer  v.  Marshall,  18  N.  J.  Eq.    337). 

While  it  is  not  necessary  that  such  agree- 
ment be  contained  In  a  sealed  instrument, 
yet  the  purchaser  must  have  either  actual 
or  constructive  notice.  Ordinarily,  a  pur- 
chaser can  enforce  such  an  agreement  only 
when  It  was  made  for  the  purpose  of  bene- 
fiting the  land  (De  Gray  v.  Monmouth  Beach 
Club,  50  N.  J.  Eq.  329;  Sharpe  v.  Ropes,  110 
Mass.  381;  Equitable  Life  Association  v. 
Brennon,  148  N.  Y.  651).  But  such  inten- 
tion is  inferred  from  the  fact  that  the  land 
was  laid  off  in  lots  intended  for  building 
purposes  (Parker  v  Nightengale,  6  Allen 
[Mass.]  341,  83  Am.  Dec.  632).  A  prior  pur- 
chaser enforcing  such  an  agreement  must 
generally  show  that  the  restriction  was  part 
of  a  common  plan  for  the  benefit  of  all  the 
lots  in  a  tract,  It  being  then  assumed  that 
all  assented  to  such  plan  (De  Gray  v.  Mon- 
mouth Beach  Club.  50  N.  J.  Eq.  329.  citing 
with  other  cases,  1  TiiTany.  Real  Prop.  768).    A 


change  in,  or  frustration  of,  such  a  general 
plan  of  improvement  (Trustees  v.  Thatcher. 
87  N.  Y.  311;  Page  v.  Murray,  46  N.  J.  Eq. 
325)  or  an  adjoining  proprietor's  act  in 
making  It  of  no  avail  (Landell  v.  Hamilton. 
177  Pa.  St.  23)  may  defeat  enforcement  of 
it.  The  leading  cases,  embracing  manj'  oth- 
ers than  those  herein  cited,  are  collected  and 
discussed  in  1  Tiffany,  Real  Prop.  pp.  762-770, 
from  which  this  note  is  taken. 

See  an  extended  discussion  of  the  right  to 
enjoin  breach  of  contract  in  note  to  Phila- 
delphia Ball  Club  V.  Lajoie,  90  Am.  St.  Rep. 
627,  641;  S.  C.  202  Pa.  St.  210.  Citing  as 
applied  to  building  covenants  Gawtry  v.  Le- 
land.  31  N.  J.  Eq.  385;  Hills  v.  Metzenroth. 
173  Mass.  423;  Wright  v.  Evans,  2  Abb.  Pr. 
(N.  S.)   308. 

21.  As  between  landlord  and  tenant,  see 
topic  "Landlord  and  Tenant."  Negligence  of 
building  contractors  Is  treated  with  other 
general  questions   under  "Negligence." 

22.  Davis  v.  Niagara  Falls  Tower  Co.,  171 
N.    Y.    336,   57   L.    R.   A.    545. 

23.  The  contract  is  no  justification  to  the 
contractor  in  an  action  by  a  party  who  has 
sustained  damages,  where  the  performance 
of  the  contract  is  necessarily  injurious — 
Murray   v.   Arthur,    98    111.    App.    331. 

24.  While  the  builder  was  in  possession 
of  the  building,  plaintiff,  an  employe  of  an 
electric  company,  fell  through  a  hole  in  the 
floor  which  was  concealed  by  rubbish — Ho- 
gan  v.  Arbuckle,  73  App.  Div.    (N.  Y.)   591. 

25.  Harmer  v.  Reed  A.  &  L  Co.  (N.  J. 
Err.    &   App.>    53    Atl.    402. 

26.  Person  injured  by  slipping  on  fish  in 
an  aisle  opposite  a  fish  stall  in  a  market 
house — Washington  Market  Co.  v.  Clagett, 
19  App.   D.   C.  12. 

27.  Bentley  v.  Loverock,  102  111.  App.  166. 

28.  Where  a  distilling  company  allows 
purchasers  of  slop  to  fill  their  wagons  from 
the  vat  and  to  go  on  a  platform  around 
the  vat  and  stir  it.  It  Is  bound  to  ordinary 
care  to  keep  the  vat  in'a  safe  condition  and 
may  be  liable  for  the  scalding  to  death  of 
a  person  by  the  bursting  of  the  vat — Hup- 
fer   v.   National   Distilling  Co.,   114   Wis.    279. 


§3 


UNSAFE  CONDITION. 


407 


store  room  though  he  enter  at  a  place  where  he  is  uninvited.^®  The  fact  that  a  per- 
son has  asked  an  employe  of  defendant  whether  she  might  use  a  certain  door  and 
has  seen  others  enter  and  leave  by  it  is  not  sufficient  to  show  an  implied  invitation 
for  its  use.^" 

Acts  or  conditions  sJwvnng  negligences^ — It  is  not  negligence  per  se  to  raise 
the  floors  of  rooms  of  a  building  slightly  above  the  hall  floors.^^  Failure  to  provide 
fire  escapes  as  required  by  statute,  if  the  proximate  cause  of  death,  and  the  death 
if  the  ordinary  consequence  thereof,  is  evidence  of  actual  negligence. ^^ 

Liability  for  falling  buildings  and  material. — The  owner  of  a  building  may  be 
'responsible  for  injuries  resulting  from  its  fall  if  he  has  not  exercised  proper  care 
to  ascertain  its  condition;  its  fall  without  apparent  cause  is  prima  facie  evidence  of 
negligence.^* 

The  owner  may  be  freed  from  liability  for  injuries  resulting  from  the  blowing 
of  material  from  the  roof  of  a  building  during  a  wind  storm  by  the  fact  that  he 
relied  on  the  skill  of  skilled  architects  and  workmen  to  whom  the  planning  and 
construction  of  the  building  was  delegated  and  that  it  was  safely  and  properly 
constructed  by  skilled  persons  and  was  in  possession  of  a  tenant.  It  is  also  a  good 
defense  that  the  accident  was  the  result  of  vis  major.^^ 

Where  a  building  has  been  damaged  by  fire,  the  owner  is  liable  for  injuries 
from  the  falling  of  its  walls  after  a  reasonable  time  to  make  them  safe  under 
ordinary  circumstances  or  such  causes  as  past  experiences  would  show  to  be  likely 
to  arise  and  he  is  not  relieved  by  the  emploj'ment  of  competent  architects  and 
builders  to  take  proper  precautionary  measures,  or  by  a  threatened  injunction 
against  repair  of  the  walls  by  persons  attempting  to  save  the  contents  of 
the  building.^''  It  is  also  held  that  he  is  bound  to  act  only  as  a  reasonably  prudent 
man.^^ 

City  ordinances  requiring  the  protection  of  sidewalks  pending  the  construction 
of  buildings  do  not  create  a  cause  of  action  in  favor  of  persons  injured  through 
failure  to  take  the  required  precaution  and  do  not  enlarge  the  personal  liability  of  the 
owner,  or  render  him  liable  for  an  injury  sustained  by  the  negligence  of  his  con- 
tractor's servants  in  allowing  material  to  fall  into  the  street.^^ 


29.  Customer  entering  by  an  alley  door — 
Burk  V.  Walsh    (Iowa)    92  N.   W.   65. 

30.  Door  at  the  back  of  a  store  reached 
by  three  steps,  access  to  which  was  had  by 
a  narrow  passage  between  the  counter  and 
cashier's  desk.  Plaintiff  was  injured  by 
stepping  through  such  door  and  falling  into 
an  excavation  outside,  no  light  being  pro- 
vided— Rooney   v.    Woolworth,    74    Conn.    720. 

31.  The  owner  of  a  store  Is  not  liable 
for  a  fall  occasioned  through  plaintiff  catch- 
ing his  foot  in  a  door  mat,  where  the  door 
mat  has  been  in  place  for  several  years  and 
no  injury  had  ever  happened — Dwyer  v. 
Hills  Bros.  Co.,  79  App.  Div.  (N.  T. )  45.  Ev- 
idence held  insufficient  to  establish  negli- 
gence in  the  owner  of  a  building  toward  a 
delivery  man  falling  into  a  space  between 
the  elevator  and  the  wall  of  a  shaft — Gray 
V.  Siegel-Cooper  Co.,  78  App.  Div.  (N.  Y.) 
118.  The  owner  of  a  building  is  not  liable 
to  a  fireman  falling  into  an  elevator  shaft, 
though  there  was  no  guard  rail  on  the  side 
from  which  he  approached,  where  it  was 
not  shown  that  he  had  entered  the  building 
in  a  way  that  might  reasonably  be  antici- 
pated, or  that  men  preceding  had  not  re- 
moved the  guard  rail  and  moved  the  ele- 
vator— Baker   v.    Otis    Elevator    Co.,    78    App. 


Div.  (N.  Y.)  513.  It  Is  for  the  Jui-y  to  de- 
termine where  brick  came  from,  the  fall 
of  which  occasioned  the  injury  and  whether 
the  fall  thereof  was  the  result  of  the  negli- 
gence of  defendant  or  his  servants — Leach 
V.    Durkin,    98    111.    App.    415. 

32.  Licensee  injured  through  the  con- 
struction of  a  room  floor  in  an  office  build- 
ing, four  and  seven-eighths  inches  above 
the  hall  floor — Ware  v.  Evangelical  B.  B.  & 
M.   Soc,  181  Mass.   285. 

33.  Rev.  St.  c,  26,  §  26,  as  amended  by 
Pub.  Laws  1891,  c.  89 — Carrigan  v.  Still- 
well,    97   Me.   247. 

34.  Comp.  Laws,  §  3603,  imposes  a  liabil- 
ity for  injury  to  others  by  the  want  of  or- 
dinary care  in  the  management  of  property 
— Patterson  v.  Jos.  Schlitz  Brew.  Co.  (S.  D.) 
91   N.   W.    336. 

35.  Uggla  V.  Brokaw,  77  App.  Div.  (N. 
Y.)    310. 

36.  Lauer  v.  Palms  (Mich.)  9  Detroit  Leg. 
N.    61,   89   N.   W.    694. 

37.  One  acting  on  the  report  of  a  com- 
petent mechanic  after  examination  of  con- 
dition held  not  liable — Freeman  v.  Carter 
(Tex.  Civ.  App.)    67  S.  W.  527. 

38.  New  York  City  ordinance  approved 
Sept.    25,    1895,    amended    Nov.    18,    1895,    pro- 


408 


BUILDINGS. 


§3 


Contributory  negligences^ — One  who  enters  as  a  mere  licensee  on  poorly  lighted 
]>remises.,  with  whicli  he  is  not  familiar,  is  contributorily  negligent.**' 

Actions.- — If  a  charge  of  negligence  is  based  on  the  violation  of  a  city  ordinance, 
recovery  cannot  be  liad  on  a  common  law  liability.*^  In  the  footnotes  are  grouped 
d'Bcisions  to  suificiency  of  pleading,*-  admissibility  of  evidence,*^  sufficiency  of  evi- 
d/ence,**  and  instructions.*"  Instructions  ignoring  the  question  of  whether  the  true 
condition  of  a  building  could  be  ascertained  by  the  exercise  of  ordinary  care  should 


vldlng'  penalties  for  failure  of  an  owner 
or  general  contractor  constructing  a  build- 
ing over  five  stories  high  to  build  a  tempo- 
rary roof  over  the  sidewalk  in  front  there- 
of—Koch  V.    Fox.    71    App.    Div.    (N.    T.)    288. 

39.  A  tenant  of  a  building  may,  without 
negligence,  use  a  dumb  waiter  placed  in  the 
house  for  the  convenience  of  persons  deliv- 
ering goods — Vandercar  v.  Universal  Trust 
Co.,  114  N.  Y.  St.  Rep.  290.  An  ice  dealer  who 
uses  a  dumb  waiter  in  an  apartment  house 
with  knowledge  that  it  was  in  a  danger- 
ous condition,  is  contributorily  negligent — 
McGuire  v.  Board,  58  App.  Div.  (N.  Y.)  388. 
Evidence  held  sufficient  to  go  to  the  Jury 
as  to  plaintiff's  contributory  negligence  in 
stepping  through  the  door  of  an  elevator 
shaft  in  an  unlighted  hall  on  a  dark  day — 
Muller  v.  Hale,   138   Cal.   163,    71Pac.    81. 

40.  He  cannot  recover  for  a  fall  down 
an  elevator  shaft — Bentley  v.  Loverock,  102 
111.  App.  166.  The  same  rule  applies  where 
plaintiff  after  having  several  times  called 
at  the  front  door,  found  the  front  door 
locked  on  one  evening  and  went  to  the  rear, 
while  attempting  to  enter  the  back  door 
in  the  dark,  fell  down  the  elevator  shaft — 
Daley  v.   Kinsman,    182   Mass.    306. 

41.  Action  for  injury  to  a  child  falling 
through  a  hatch-way  based  on  an  ordinance 
requiring  such  hatch-way  to  be  guarded — 
Hirst  V.  Rlngen  Real  Estn;  •  Co.,  169  Mo. 
194. 

43.  It  is  sufncient  that  the  complaint 
state  that  the  owner  permitted  a  building 
to  collapse,  and  In  so  doing,  to  instantly 
and  without  notice  kill  deceased  while 
he  was  rightfully  and  without  negligence 
therein — Patterson  v,  Jos.  Schlitz  Brew.  Co. 
(S.  D.)  91  N.  W.  336.  It  is  sufficient  against 
a  general  demurrer  to  allege  "that  this 
hatch-way,  at  the  time  of  the  Injuries  of 
plaintiff's  child,  was  barred,  enclosed  by 
railing,  gate  or  other  contrivance  to  pre- 
vent accident  or  Injuries  to  persons  there- 
from as  required  by  §  749,  art.  3,  c.  16,  of 
the  Revised  Ordinance  of  the  city" — Hirst  v. 
Ringen  Real  Estate  Co.,  169  Mo.  194.  Com- 
plaint for  injuries  received  by  the  fall  of 
a  building  alleged  that  plaintiff  was  law- 
fully in  front  of  the  building  and  the  answer 
denied  it.  held,  that  there  was  no  issue  as 
to  the  plaintiff's  precise  position — Water- 
house  V.  Jos.  Schlitz  Brew.  Co.  (S.  D.)  94 
N.   W.   587. 

43.  In  an  action  for  the  falling  of  a 
building,  evidence  that  other  similar  build- 
ings had  fallen  is  admissible  to  show  no- 
tice; it  may  be  shown  how  and  of  what  ma- 
terial the  building  was  constructed,  the 
manner  of  construction  and  the  fact  that 
the  material  had  decayed  being  alleged  in 
the  complaint;  and  description  of  material 
and  methods  employed  in  constructing  simi- 
lar   buildings    is    admissible — Waterhouse    v. 


Jos.  Schlitz  Brew.  Co.  (S.  D.)  94  N.  W.  587. 
To  show  that  a  hall  was  lighted  at  the  time 
plaintiff  stepped  into  an  elevator  shaft,  it 
is  inadmissible  to  introduce  evidence  of  its 
being  lighted  at  the  same  time  of  day  on 
other  days  of  the  month — Muller  v.  Hale, 
138  Cal.  163,  71  Pac.  81.  Evidence  that  fine 
print  could  be  read  March  18th  at  5  P.  M. 
is  not  admissible  to  show  that  a  hallway 
was  sufficiently  lighted  without  artificial 
light  December  13th  between  4  and  4:30 
P.  M.  Records  of  the  United  States  Weather 
Bureau  as  to  conditions  of  the  weather  are 
admissible,  and  a  picture  of  the  hallway 
may  be  admissible  to  show  the  construction 
of  the  staircase  though  it  will  not  show 
whether  the  hall  was  sufficiently  lighted — 
Bretsch  v.  Plate,  115  N.  Y.  St.  Rep.  868.  Wit- 
ness cannot  be  asked  as  to  her  knowledge 
of  whether  it  is  customary  for  elevators  to 
have  lights,  though  she  testified  that  when 
she  entered  the  room  whei-e  the  shafts  were, 
there  were  no  lights — Muller  v.  Hale,  138 
Cal.  163,  71  Pac.  81.  In  an  action  for  in- 
juries from  the  falling  of  a  wall  after  a 
fire,  a  letter  written  by  the  chief  engineer 
to  the  mayor  of  the  town  and  given  by  the 
mayor  to  the  owner,  stating  that  the  wall 
was  dangerous  and  should  be  pulled  down 
is  admissible  to  show  notice — Curd  v.  Wing. 
115  Ga.  371. 

44.  To  sustain  a  recovery  against  a  hotel 
proprietor  for  Injury  received  by  being 
struck  by  a  bag  of  potato  peelings  falling 
from  a  back  platform — Ahern  v.  Melvin,  21 
Pa.  Super.  Ct.  462.  Evidence  that  a  section 
of  iron  railing  has  been  allowed  to  remain 
loose  for  some  time  is  sufficient  to  go  to 
the  jury  in  an  action  by  a  pedestrian  In- 
iured  by  its  fall — Butts  v.  National  Exch. 
Bank  (Mo.  App.)  72  S.  W.  1083.  Evidence 
held  sufficient  to  show  that  the  def^-^tive 
condition  of  a  vat  could  have  been  discov- 
ered by  exercise  of  ordinary  care — Jriapier 
V.  National  Distilling  Co.,  114  Wis.  279.  To 
show  that  a  hall  was  sufficiently  lighted  to 
relieve  the  owner  from  the  duty  of  main- 
taining a  light  under  Laws  1897,  p.  474,  c. 
.",78,  §  1320 — Bretsch  v.  Plate,  115  N.  Y.  St. 
Rep.   868. 

45.  An  instruction  that  It  is  the  duty  of 
the  owner  of  a  market  house  to  maintain 
sufficient  watchmen  to  keep  the  aisles  in 
safe  condition  for  the  public,  is  proper — 
Washington  Market  Co.  v.  Clagett,  19  App. 
D.  C.  12.  Where  injury  was  received  from 
the  falling  of  walls  after  partial  destruc- 
tion of  a  brick  building,  an  in-struction  that 
the  owner  would  not  be  liable  if  he  had 
employed  a  competent  mechanic  to  inspect 
the  walls,  and  the  mechanic  had  reported 
them  safe,  should  be  given  though  there  is 
a  general  charge  on  ordinary  care — Freeman 
V.   Carter    (Tex.   Civ.  App.)    67   S.  W.   527. 


§4 


OPERATION   OF    ELEVATORS. 


409 


be  refused.*'  Instructions  requiring  a  peculiar  kind  of  protection  to  an  elevator 
shaft  are  erroneous.*^     Hypothetical  findings  will  not  be  reviewed.*^ 

§  4.  Liability  for  negligent  operation  of  elevators. — Operators  of  passenger 
elevators  are  common  carriers  of  passengers;*^  while  not  insurers,  they  must  exer- 
cise the  highest  degree  of  care,  and  their  liabilities  are  similar  to  those  of  a  carrier 
by  railroad.^"  It  is  their  duty  to  use  extraordinary  care  in  and  about  the  operation 
of  elevators  to  prevent  injury  to  persons  therein,^^  and  they  are  bound  to  the 
highest  degree  of  care  and  diligence  for  the  safety  of  passengers  practically  consist- 
ent with  eflScient  use  and  operation  thereof.^^ 

Where  the  elevator  is  built  by  a  reputable  firm,  has  all  known  safety  appliances, 
and  is  frequently  inspected,  there  is  no  liability  for  an  accident.^^  The  owner  of 
a  building  may  be  liable  for  negligence  where  a  freight  elevator  is  so  constructed 
that  it  will  not  come  to  the  level  of  a  floor  so  that  loading  causes  jarring  resulting 
in  an  accident.^*  The  owner  may  not  be  liable  for  an  act  of  a  third  person.^' 
The  jury  may  be  instructed  that  noncompliance  with  statutory  requirements  of  the 
use  of  appliances  to  prevent  passenger  elevators  from  starting  while  their  doors 
are  open  is  evidence  of  negligence.^®  Where  an  elevator  is  not  out  of  repair,  or  its 
use  in  the  way  in  which  it  was  used  dangerous,  the  doctrine  of  res  ipsa  loquitur  does 
not  apply  to  a  person  accustomed  to  its  operation  who  is  injured  in  an  unexplained 
manner."^ 

Where  a  stop  is  made  to  allow  passengers  to  get  off,  the  operator  must  stop  long 


46.  Instruction  Is  properly  refused  in  an 
action  for  collapse  of  a  building,  that  de- 
fendant was  not  liable  unless  there  was 
something  in  the  appearance  of  the  build- 
ing or  its  condition  to  indicate  to  a  per- 
son on  an  ordinary  examination  that  the 
building  was  improperly  constructed  or  un- 
less defendant  had  notice  that  it  was  im- 
properly constructed — Waterhouse  v.  Jos. 
Schlitz  Brew.  Co.   (S.  D.)  94  N.  W.  587. 

47.  Error  to  instruct  that  a  failure  to 
erect  and  maintain  guards  and  barriers  for 
the  protection  of  an  elevator  shaft  was  neg- 
ligence— Burk  V.  Walsh   (Iowa)    92  N.   W.  65. 

48.  It  is  not  an  adjudication  that  defend- 
ants failed  to  perform  their  duty  toward 
plaintiff  as  a  licensee,  and  that  plaintiff 
did  not  by  her  negligence  contribute  to  her 
injuries  such  as  to  demand  a  review,  where 
the  trial  court  found  that  plaintiff,  who 
was  injured  by  stepping  into  an  excava- 
tion on  going  out  of  a  door  of  defendant's 
store,  used  the  door  by  an  implied  invita- 
tion, and  that  if  the  facts  did  not  establish 
such  conclusion  it  would  find  that  the 
license  given  plaintiff  established  a  liability 
— Rooney  v.  Woolworth,   74  Conn.   720. 

49.  Chicago  Exch.  Bldg.  Co.  v.  Nelson, 
197  111.  334;  Beidler  v.  Branshaw,  102  111. 
App.   18T. 

GO.  Becker  v.  Lincoln  Real  Estate  &  Bldg. 
Co.  (Mo.)  73  S.  W.  581;  Griffen  v.  Manice, 
74    App.    Div.    (N.   Y.)    371. 

51.     Beidler  v.  Branshaw,  102  111.  App.  187. 

.-2.  Chicago  Exch.  Bldg.  Co.  v.  Nelson, 
197  111.  334.  Where  persons  are  carried  on 
a  freight  elevator,  the  highest  degree  of 
care  must  be  exercised  practicable  and  con- 
sistent with  the  efficient  use  of  the  means 
and  appliances  adopted — Beidler  v.  Bran- 
shaw,   102    111.    App.    187. 

53.  The  elevator  was  shown  to  be  In  per- 
fect order  by  various  inspections  of  the 
persons  erecting  it,  the  insurance  companies, 
and  the  city.     There  was  an  occasional  bump- 


ing of  the  car  on  the  springs,  and  the  acci- 
dent occurred  through  the  unexplained  fail- 
ure of  the  machinery  to  stop  at  the  bottom 
of  the  shaft,  though  the  car  was  properly 
operated — Griffen  v.  Manice,  74  App.  Div. 
(N.  Y.)    371. 

54.  Grifhahn  v.  Kreizer,  62  App.  Div.  (N. 
Y.)    413. 

55.  The  owner  of  a  building  Is  not  lia- 
ble to  a  person  injured  by  the  sudden  start- 
ing of  a  freight  elevator  through  the  fact 
that  some  one  on  another  floor  pulled  the 
starting  rope  without  giving  warning,  where 
no  similar  accident  had  occurred  since  the 
olevator  had  been  in  use  some  four  years, 
and  the  person  injured  testified  that  he  did 
not  think  that  a  person  outside  the  shaft 
could  pull  the  rope  with  force  enough  to 
start  the  elevator — Cleary  v.  Brooklyn  Fac- 
tory &  Power  Co.,  79  App.  Div.   (N.  Y.)   35. 

56.  Gen.  Laws,  c.  108,  §  16.  Plaintiff's 
foot  was  caught  between  the  elevator  and 
the  floor  by  the  moving  upward  of  the  ele- 
vator when  she  started  out  after  the  door 
had  been  opened — Bullock  v.  Butler  Exch. 
Co.    (R.    L)    62    Atl.    122. 

57.  A  freight  and  passenger  elevator  was 
so  constructed  that  in  passing  through  the 
shaft  it  lifted  on  its  top  sections  of  the 
floor  and  carried  them  thus  to  the  top  of 
the  shaft,  leaving  them  again  in  their  prop- 
er places  on  the  trip  down.  Plaintiff's  in- 
testate had  been  carried  to  the  top  floor 
of  the  building  and  left  alone  there,  it  be- 
ing agreed  that  the  elevator  should  return 
for  him  when  he  signalled.  The  signal  was 
given,  and  the  operator  on  reaching  the 
top  floor  discovered  him  pinned  between 
the  top  of  the  elevator  and  the  roof,  the 
guard  rail  of  the  opening  being  down;  there 
was  an  abundance  of  light  around  the  ele- 
vator. Held  that  on  the  evidence,  the  own- 
ers of  the  building  were  not  liable — State  v. 
Green,    95   Md.    217. 


410 


BUILDINGS. 


>J  4 


enough  to  allow  passengers  desiring  to  do  so  to  alight,  though  they  are  not  the  ones 
directing  the  stop,  and  before  starting  must  exercise  reasonable  care  to  ascertain  if 
there  are  other  persons  in  the  act  of  getting  oif.^^  ^Moving  of  an  elevator  after  it  is 
stopped,  though  at  plaintiff's  request,  may  be  negligence.^®  Starting  an  elevator 
without  closing  the  door  tends  to  show  negligence  in  its  operation."" 

Contributory  negligence. — An  attempt  to  leave  an  elevator  at  the  usual  stop 
without  speaking  to  the  conductor  is  not  negligence  as  a  matter  of  law,  though  the 
passenger  does  not  stop  to  look  or  listen  or  observe  whether  the  conductor  is  about 
to  close  the  door  which  has  been  opened  to  admit  passengers."^  The  passenger's 
mistake  in  the  number  of  the  floor  at  which  he  is  attempting  to  leave  the  elevator 
need  not  be  considered  in  determining  his  care.""  Persons  riding  on  freight  elevators 
must  avoid  assuming  dangerous  positions."* 

Actions  for  injuries. — A  statute  as  to  safety  appliances  need  not  be  referred  to 
in  terms  in  the  pleadings  if  it  clearly  appear  from  the  averment  of  the  accident  that 
had  it  been  complied  with  the  accident  would  not  have  occurred."*  The  burden  of 
showing  negligence  is  on  the  person  injured."^  No  presumption  that  negligence  does 
not  exist  in  the  operation  of  a  freight  elevator  arises  from  the  fact  that  it  has 
been  operated  for  some  time  without  accident."*  Evidence  of  negligence  not  charged 
in  the  declaration  is  inadmissible."^  The  condition  of  the  elevator  immediately  after 
the  accident  may  be  shown."*  Decisions  as  to  sufficiency  of  evidence  are  collected  in 
the  notes."* 


58.  Becker  v.  Lincoln  R.  E.  &  B.  Co.  (Mo.) 
73  S.   W.   581. 

5J).  An  instruction  as  to  such  point  should 
be  that  if  the  elevator  was  so  moved  at 
plaintiff's  request  as  to  conduce  to  the  acci- 
dent, such  moving-  was  not  negligence  on  the 
part  of  defendant — Bullock  v.  Butler  Exch. 
Co.    (R.   I.)    52   Atl.   122. 

00.  Passenger  knowing  it  to  be  the  cus- 
tom for  descending  passengers  to  notify  the 
operator  of  a  desire  to  get  off  at  floors  be- 
fore the  ground  floor,  attempted  to  leave 
at  the  second  floor,  thinking  that  the  ele- 
vator had  reached  the  ground — Chicago 
Exch.    Bldg.   Co.   V.   Nelson,   197   111.    334. 

61.  Chicago  Exch.  Bldg.  Co.  v.  Nelson, 
197  111.  334.  The  question  of  whether  a 
passenger  is  guilty  of  contributory  negli- 
gence in  attempting  to  leave  an  elevator 
without  acquainting  the  conductor  of  his 
purpose  as  well  as  the  right  to  assume  that 
the  car  would  not  start  until  the  door  is 
closed  is  for  the  jury — Roulo  v.  Minot  (Mich.) 
9  Detroit  Leg.  N.  619,  93  N.  W.  870. 

63.  The  passenger  has  the  right  to  alight 
at  any  of  the  usual  stopping  places,  though 
In  this  case  it  was  customary  for  descend- 
ing passengers  to  notify  the  conductor  if 
they  desired  to  get  off  elsewhere  than  at 
the  ground  floor — Chicago  Exch.  Bldg.  Co. 
v.    Nelson,    197    111.   334. 

63.  One  using  a  freight  elevator  as  a 
licensee  who  steps  off  into  an  unguarded 
place  which  was  perfectly  apparent,  is  con- 
tributorily  negligent — Gray  v.  Siegel-Coop- 
er  Co.,  78  App.  Div.  (N.  Y.)  118.  It  may 
be  contributory  negligence  for  a  person 
familiar  with  the  construction  of  an  ele- 
vator to  so  stand  that  his  heel  is  caught  be- 
tween the  car  and  a  lintel — Beidler  v.  Bran- 
shaw,  200  111.  425.  One  who  with  knowledge 
places  his  foot  between  a  freight  elevator 
and  a  floor  is  negligent  and  cannot  recover 


where  the  elevator  is  subsequently  lowered 
by  the  employee  in  charge  without  knowl- 
edge of  the  presence  of  the  foot — Bromberg 
V.  Friend,  101  N.  Y.  St.  Rep.  698. 

64.  Gen.  Laws,  c.  108,  §  16 — Bullock  v. 
Butler  Exch.   Co.    (R.   I.)    52  Atl.    122. 

65.  Defective  working  of  elevator — Grif- 
fen  V.  Manice,    74  App.  Div.    (N.  Y.)    371. 

66.  There  was  evidence  that  the  elevator 
was  impi«operly  constructed — Grifhahn  v. 
Kreizer,   62  App.  Div.   (N.  Y.)    413. 

07.  Operation  of  an  elevator — La  Salle 
County  Carbon  Coal  Co.  v.  Eastman,  99  111 
App.   495. 

68.  "Where  there  is  no  evidence  that  its 
condition  had  changed  before  the  examina- 
tion by  the  witness — Slack  v.  Harris  101 
111.    App.    527. 

69.  To  show  negligence  of  defendant  in 
an  accident  caused  by  the  sudden  starting  up 
of  an  elevator  while  plaintiff  was  attempt- 
ing to  leave  It — Ingrafia  v.  Samuels,  71  App 
Div.  (N.  Y.)  14.  To  show  that  by  defend- 
ant's negligence  plaintiff's  foot  was  caught 
and  crushed  under  a  floor  plate  through  the 
elevator  stopping  below  the  floor  and  then 
moving  upward  while  plaintiff  was  getting 
out — Bullock  V.  Butler  Exch.  Co.  (R.  I.)  52 
Atl.  122.  Evidence  held  insufficient  to  sus- 
tain a  judgment  for  plaintiff  injured  by  the 
falling  of  an  elevator  which  was  Inspected 
and  found  in  good  condition  by  a  competent 
engineer  the  morning  of  the  accident,  which 
was  in  charge  of  a  competent  operator  and 
had  worked  for  three  years  without  acci- 
dent and  worked  properly  after  the  acci- 
dent without  repair  and  there  was  no  evi- 
dence of  any  fault  of  the  operator  or  other 
employes — Hubener  v.  Heide,  73  App.  Div. 
(N.  Y.)  200.  Negligence  not  shown  in  aged 
woman's  attempting  to  leave  an  elevator 
after  it  had  stopped  and  the  door  was  opened, 
and    being  caught  between   the   car   and    the 


§3 


BURGLARY. 


411 


BURGLARY. 

§  1.  What  constitutes.  Breaking. — Entry  by  a  servant  with  intent  to  steal 
is  burglarious  though  he  had  a  right  to  sleep  in  the  building.^  Opening  a  closed 
door  is  a  breaking,-  as  is  breaking  a  window  and  reaching  in  through  it.^  Ee- 
moving  the  putty  around  a  window  pane  without  taking  out  the  pane  is  not.* 

Intent. — If  there  is  no  intent  to  commit  crime,  the  offense  is  not  burglary.* 

Nature  and  situation  of  building.^ — Enclosure  is  not  necessary  to  make  a  build- 
ing part  of  the  curtilage.'^  A  corn  crib  is  a  "house,"^  and  a  chicken  house  is  a 
%uilding."9 

Commission  of  intended  crime. — Actual  commission  of  a  crime  is  not  neces- 
sary.^" 

Attempt. — Going  to  a  building  with  burglar's  tools  and  with  intent  to  break 
in  is  an  attempt.^^ 

§  2.  Indictment. — The  indictment  need  not  state  whether  the  owner  of  the 
building  was  a  partnership  or  a  corporation/^  but  it  has  been  otherwise  held"  as 
to  the  property  within  the  building/^  nor  need  an  indictment  for  burglary  in 
rooms  in  a  hotel  allege  the  leasing  thereof  though  they  are  stated  to  be  a  dwelling 
house.^*  It  need  not  be  alleged  that  there  were  goods  subject  of  larceny  in  the 
building.^"^  Whether  the  crime  was  committed  in  the  day  or  night  need  not  be 
stated  under  some  of  the  later  laws.^®  Property  may  be  laid  in  a  part  owner  wTio 
is  in  control/'^  or  in  a  tenant/^  and  it  has  been  held  that  the  owner's  name  need 
not  be  alleged/®  and  title  to  the  chattels  stolen  may  be  laid  in  one  having  special 
property.^"     Particular  allegations  passed  on  by  the  courts  are  in  the  notes.^^ 

§  3.     Admissibility   of   evidence.^^ — Actual  larceny   may  be  proved  to   show 


floor  by  the  sudden  rising  of  the  car — Bul- 
lock V.  Butler  Exch.  Co.  (R.  I.)  52  Atl.  122. 
Evidence  held  sufficient  for  the  jury  on  the 
question  of  an  elevator  conductor's  negli- 
gence in  allowing  the  elevator  to  start  while 
the  passenger  was  getting  out — Roulo  v. 
Minot  (Mich.)  9  Detroit  Leg.  N.  619,  93  N. 
W.  870. 

1.  State  V.  Howard,   64   S.   C.    344. 

2.  Barber  v.  State  (Tex.  Cr.  App.)  69  S. 
W.   515;    State  v.   Snow    (Del.)    51   Atl.    607. 

3.  State  V.  Boysen,  30  Wash.  338,  70  Pac. 
740. 

4.  Mlnter  v.   State    (Ark.)    71   S.  W.   944. 

5.  It  is  breaking  and  entering  under  the 
Delaware  Statute — State  v.  Snow  (Del.)  51 
Atl.    607. 

6.  Under  Gen.  St.  1901,  §  2059,  to  con- 
stitute burglary  in  the  second  degree  there 
must  be  a  human  being  or  some  valuable 
property  in  the  building — State  v.  Poole, 
65   Kan.   713,   70  Pac.   637. 

7.  State  V.  Bugg   (Kan.)    72  Pac.   236. 

8.  Barber  v.  State  (Tex.  Cr.  App.)  69  S. 
W.   515. 

9.  State  V.  Poole,  65  Kan.  713,  70  Pac. 
637. 

10.  Accused  took  property  not  subject  of 
larceny — Farris  v.  State  (Tex.  Cr.  App.)  69 
S.  W.  140;  Ragland  v.  State  (Ark.)  70  S. 
W.   1039;    Walker  v.   State    (Fla.)    32   So.    954. 

11.  People  v.  Sullivan,  173  N.  Y.   122. 

12.  State  v.  Golden,   86  Minn.   206. 

13.  State  v.  Jones,  168  Mo.  398.  By  stat- 
ute In  Kentucky  (Stat.  §  1162)  an  averment 
of  the  ownership  of  such  property  is  sur- 
plusage— Scott  V.  Com.,  24  Ky.  Law  Rep.  889, 
70  S.  W.  281. 


14.  State  v.  Burton,  27  Wash.  528,  67  Pac. 
1097. 

15.  State   V.   Golden,   86   Minn.    206. 

16.  But  if  it  is  alleged  to  have  been  com- 
mitted in  the  night  a  conviction  of  burglary 
in  the  day  time  cannot  be  had — People  v. 
Smith,    136   Cal.    207,    68   Pac.    702. 

17.  Farris  v.  State  (Tex.  Cr.  App.)  69  S. 
W.    140. 

18.  Brown  V.   State   (Miss.;   33  So.   170. 

19.  State  v.  Williams  (Iowa)  94  N.  W. 
255. 

20.  Blackwell  v.  State  (Tex.  Cr.  App.) 
73  S.  W.  960. 

21.  Drug  store  properly  described  as  a 
"store  house  commonly  called  a  drug  store" 
— McNutt  V.  State  (Neb.)  94  N.  W.  143.  De- 
scription of  money  taken  held  sufficient — 
State  V.  Wilson  (Kan.)  71  Pac.  849.  In- 
formation for  burglary  from  railroad  car 
held  to  insufficiently  describe  the  car — Peo- 
ple V.  Webber,  138  Cal.  145.  70  Pac.  1089. 
Indictment  sufficient  in  this  respect — Gil- 
bert V.  State  (Ga.)  43  S.  E.  47.  Indictment 
charging  entry  and  Intent  to  "commit  a 
felony"  in  general  terms  sufficient — Com.  v. 
Johnston,  19  Pa.  Super.  Ct.  241.  And  see 
as  to  general  charge  of  Intent  to  commit 
larceny — State  v.  Ellsworth,  130  N.  C.  690; 
Smith  V.  State  (Neb.)  94  N.  W.  106.  Vari- 
ance: As  to  ownership  of  car  entered  fatal 
— People  V.  Webber,  138  Cal.  145,  70  Pac. 
1089. 

22.  Subsequent  finding  of  hidden  goods 
admissible — McAnally  v.  State  (Tex.  Cr. 
App.)  73  S.  W.  404.  Evidence  that  defend- 
ant's wife  knew  there  was  money  in  the 
house     is     not     admissible — Long    v.     State 


412 


CANALS. 


§   1 


the  intent."  Possession  of  burglar's  tools  some  time  later  may  be  shown.**  Proof 
of  possession  of  burglar's  tools  is  not  excluded  by  the  fact  that  such  possession 
is  an  independent  crime.'^'' 

§  4.  Sufficiency  of  evidence." — Possession  of  stolen  goods  is  not  necessarily 
a  proof  of  guilt.^^ 

§  5.  Instruciions  and  verdict.-^ — An  instruction  ignoring  intent  is  reversible 
error.-"  Instructions  that  where  defendant  is  found  in  possession  of  stolen  goods 
he  must  show  that  he  obtained  them  "fairly  and  honestly,"^"  or  must  satisfactorily 
explain  their  possession,^^  are  erroneous.  The  verdict  must  be  certain  as  between 
two  crimes  charged,^-  and  if  it  denominates  the  offense  found  must  specify  it.^' 

CANALS. 

§  1.  Locaiion,  establishment,  construction,  and  operation. — Where  a  company, 
authorized  to  construct  a  canal  under  a  law  requiring  it  to  keep  the  canal  open 
for  public  patronage  at  prescribed  tolls,  is  empowered  by  a  subsequent  law  to  lease, 
sell,  or  discontinue  it  because  no  longer  useful,  a  purchaser  of  the  canal  and 
franchises  is  not  required  to  keep  it  open.^  An  owner  of  lands  adjoining  a  canal 
may  enjoin  the  discharge  of  city  sewage  into  it  where  he  will  suffer  substantial 


(Miss.)  33  So.  224.  Statements  as  to  instru- 
ment with  wliich  door  was  broken  (State 
V.  Ellsworth,  130  N.  C.  690);  and  as  to 
whether  defendant  could  have  entered 
through  a  certain  opening  (Murmutt  v.  State 
[Tex.  Cr.  App.]  67  S.  W.  508)  not  excluded 
as  mere  opinions.  Statement  of  co-con- 
spirator admip.sible — Barber  v.  State  (Tex. 
Cr.  App.)  69.  S.  "W.  515.  Admissions  indefi- 
nite as  to  time  held  inadmissible — State  v. 
Snyder  (Iowa)  91  N.  W.  765.  Where  there 
is  testimony  that  deiendant  was  seen  with 
similar  property  he  may  explain  his  pos- 
session— State  V.  Brundidge  (Iowa)  91  N. 
W.    920. 

23.  Moseley  v.  State  (Tex.  Cr.  App.)  67 
S.  W.  414.  And  see  Farris  v.  State  (Tex. 
Cr.    App.)    69   S.   W.   140. 

24.  Williams  v.  People.  196  111.  173;  Peo- 
ple  V.    Gregory    (Mich.)    90   N.    W.    414. 

25.  Williams   v.    People.    196   111.    173. 

26.  Evidence  sufficient — Ragland  v.  State 
(Ark.)  70  S.  W.  1039;  Walker  v.  State  (Fla.) 
32  So.  954;  Gilbert  v.  State  (Ga.)  43  S.  E. 
47;  State  v.  Armstrong,  170  Mo.  406;  Black- 
well  V.  State  (Tex.  Cr.  App.)  73  S.  W.  9(n). 
Evidence  insufficient — Garcia  v.  State  (Tex. 
Cr.  App.)  70  S.  W.  95;  Brooks  v.  State 
(Tex.  Cr.  App.)  TO  S.  W.  419.  Evidence  of 
ownership  of  building  sufficient — McNutt  v. 
State  (Neb.)  94  N.  W.  143.  Evidence  suffi- 
cient to  show  that  stolen  goods  subsequent- 
ly found  were  hidden  by  defendant — Mc- 
Anally  v.  State  (Tex.  Cr.  App.)  73  S.  W. 
404.  Evidence  of  venue  sufficient  in  prose- 
cution for  burglary  from  car — Gilbert  v. 
State  (Ga.)  43  S.  E.  47.  Presumption  of  in- 
tent (Laws  1895.  c.  4405)  authorizing  pre- 
sumption of  intent  from  entry  in  night 
does  not  apply  to  entry  by  day — Walker  v. 
State  (Fla.)  32  So.  954.  Evidence  that  prop- 
erty was  taken  for  temporary  use  only  in- 
sufficient to  go  to  jury — King  v.  State  (Tex. 
Cr.  App.)    67   S.   W.   410. 

27.  State  v.  Brady  (Iowa)  91  N.  W.  801; 
Carano  v.  State.  24  Ohio  Cir.  Ct.  93;  Gravitt 
V.  State.  114  Ga.  841;  State  v.  Brundidge 
aowa)  91  N.  W.  920.    But  see  State  v.  Arm- 


strong, 170  Mo.  406.  And  It  has  been  said 
that  it  will  support  a  conviction — State  v. 
Swift  (Iowa)  94  N.  W.  269;  but  only  where 
the  burglary  and  attendant  larceny  were 
committed  by  the  same  person  and  at  the 
same  time — State  v.  Williams  (Iowa)  94  N. 
W.  255.  In  connection  with  other  facts  held 
sufficient — Branch  v.  Com.  (Va.)  41  S.  E. 
862;  Richardson  v.  State  (Miss.)  33  So.  441; 
Odell  v.  State  (Tex.  Cr.  App.)  71  S.  W.  971; 
State  V.  Brady  (Iowa)  91  N.  W.  801;  Will- 
iams V.  People,  196  111.  173;  Hollengshead 
V.  State  (Tex.  Cr.  App.)    67  S.  W.  114. 

28.  Charge  held  argumentative — Brant- 
ley V.  State,  115  Ga.  229.  Limitation  of  proof 
of  other  burglaries  to  bearing  on  intent — 
Camarillo  v.  State  (Tex.  Cr.  App.)  68  S.  W. 
795.  Evidence  not  requiring:  Instructions 
as  to  taking  of  property  for  temporary  use — 
King  V.  State  (Tex.  Cr.  App.)  67  S.  W.  410. 
As  to  acquiescence  in  statement  of  third 
person  by  silence — Brantley  v.  State,  115 
Ga.  229.  Instruction  as  to  possession  of 
stolen  goods — Brantley  v.  State,  115  Ga.  229. 
As  to  circumstantial  evidence — Moncevlis  v. 
State  (Tex.  Cr.  App.)  70  S.  W.  94.  As  to 
innocent  Intent  of  one  claiming  to  have  been 
employed  as  drayman — Whitworth  v.  State 
(Tex.  Cr.  App.)    67   S.  W.   1019. 

29.  State  V.  Williams  (Iowa)  94  N.  W. 
255. 

30.  State  V.  Brady  (Iowa)  91  N.  W.  801. 
But  see  State  v.   Swift   (Iowa)    94  N.   W.   269. 

31.  State  v.  Brundidge  (Iowa)  91  N.  W. 
920.  Instructions  as  to  possession  of  stolen 
goods  held  erroneous — People  v.  Boxer,  137 
Cal.  562,  70  Pac.  671.  Instructions  held  cor- 
rect— State   V.   Swift    (Iowa)    94    N.   W.    269. 

32.  On  trial  for  burglary  and  larceny 
must  identfy  crime  found — State  v.  Jones, 
168  Mo.  398.  Verdict  on  several  counts  con- 
strued— Carano  v.  State,  24  Ohio  Cir.  Ct.  R. 
93. 

33.  "Guilty  of  a  misdemeanor"  insufficient 
— Smith  v.  State  (Ga.)   43  S.  E.  440. 

1.  Under  Laws  1899,  c.  469,  §  3 — New  York 
Cement  Co.  v.  Consolidated  Rosendale  Ce- 
ment Co.,  76  App.  Div.    (N.  Y.)    285. 


§  1 


CANCELLATION. 


413 


injury  therefrom  though  he  thereby  greatly  interferes  with  the  plans  of  the  city 
for  the  public  welfare.^ 

§  2.  Ownership  and  administrative  control  hy  public. — A  canal,  constructed 
by  a  corporation  having  the  power  of  eminent  domain  and  the  right  to  divert  the 
waters  of  navigable  rivers,  which  uses  part  of  the  bed  of  a  public  stream,  is  held 
under  a  public  trust  and  the  tolls  thereof  may  be  regulated  by  law;  a  lease  of  part 
of  the  canal  from  a  grantee  of  the  original  corporation  will  not  enable  the  lessee 
to  charge  larger  tolls  than  originally  fixed  by  law  when  the  canal  was  constructed.' 
A  law,  authorizing  a  corporation  which  had  constructed  a  canal  to  discontinue 
its  use,  contemplates  an  actual  physical  discontinuance  by  vote  of  the  corporate 
managers,  and  notice  of  closing  given  by  a  mesne  grantee  of  the  corporation  is 
not  effectual  against  another  corporation  having  the  right  to  use  part  of  the  canal 
while  it  remained  a  canal.* 

CANCELLATION   OF   INSTRTJMENTS. 

§  1.     Nature     of     Remedy. — What     Instru-  i       §  3.     Procedure. — Laches;    Conditions    Pr*- 

ments;  Adequacy  of  Remedy  at  Law.  cedent;   Parties   and  Pleading;   Evidence   ajld 

f  2.     Grounds  of  Action.  |  Questions   of  Fact;   Findings  and  Judgmeht. 

§  1.  Nature  of  remedy.^  Instruments  which  may  be  canceled. — A  deed  will 
be  set  aside  in  equity  for  fraud  where  it  concerns  an  estate  purely  in  expectancy 
as  well  as  an  estate  in  praesenti,^  and  though  void  on  its  face  since  it  operates  as 
a  cloud  on  title;'  but  where  both  parties  to  a  deed  are  equally  guilty  in  attempt- 
ing to  defraud  creditors,  equity  will  leave  them  in  the  position  in  which  they  have 
placed  themselves.*  The  federal  government  may  maintain  a  suit  to  set  aside 
patents  erroneously  issued  granting  lands  to  a  railroad  company  as  against  the 
company  and  alleged  bona  fide  purchasers.'' 

Adequacy  of  remedy  at  law.^ — Generally,  a  conveyance  of  an  interest  in  lands 
will  not  be  canceled  in  equity  where  complainant  is  not  in  possession,  his  rem- 
edy at  law  by  ejectment  being  adequate;^  and  a  contract  by  him  with  the  tenants 
of  the  grantee  to  lease  premises  to  them  will  not  be  such  a  regaining  of  posses- 
sion by  him  as  will  enable  him  to  maintain  a  suit  in  equity;'  but  it  is  otherwise 


2.  Warren  v.  Gloversvllle,  114  N.  Y.  State, 
912. 

3.  Under  Laws  1823,  c.  238,  lease  under 
Laws  1899,  c.  469 — New  York  Cement  Co.  v. 
Consolidated  Rosendale  Cement  Co.,  37  Misc. 
Rep.   (N.  Y.)    746. 

4.  Laws  1899,  c.  469,  §§  3,  4 — New  York 
Cement  Co.  v.  Consolidated  Rosendale  Ce- 
ment Co.,  38  Misc.  Rep.   (N.  Y.)   518. 

1.  See  Quieting  Title;  Reformation  of  In- 
struments; retention  of  bill  to  grant  com- 
plete relief,  see  Equity. 

Cancellation  of  land  patents  by  govern- 
ment, see  Public  Lands;  of  patents  to  min- 
eral claims,  see  Mines  and  Minerals;  of  tax 
deeds  by  officers,  see  Taxes;  of  Insurance 
policy  under  terms  of  instrument,  see  In- 
surance. 

2.  Wells  V.  Houston  (Tex.  Civ.  App.)  69 
S.  W.  183. 

3.  Morton  v.  Morris,  27  Tex.  Civ.  App.  262. 

4.  Edg-ell  V.  Smith,   50  W.  Va.  349. 

5.  Under  U.  S.  Acts,  Mar.  3,  1887;  Feb.  12, 
1896;  and  Mar.  2,  1896,  the  company  may.  In 
the  same  suit,  be  required  to  account  for 
lands  sold — United  States  v.  Southern  Pac. 
R.  Co.,  117  Fed.  544. 

6.  Sufliciency  of  showing  of  Inadequacy  of 
remedy  at  law  for  cancellation  of  life  policy 


for  concealment  of  facts  to  entitle  company 
to  sue  in  equity — Mutual  Life  Ins.  Co.  v. 
Pearson,  114   Fed.  395. 

7.  Treadwell  v.  Torbert,  133  Ala.  504.  On 
ground  of  mental  Incapacity — Wilkinson  v. 
Wilkinson,  129  Ala.  279.  Deed  by  alleged  In- 
sane person  out  of  possession — Galloway  v. 
Hendon,  131  Ala.  280.  Deed  from  a  testator 
after  the  will  at  suit  of  a  devisee  out  of  pos- 
session— Letohatchie  Baptist  Church  v.  Bul- 
lock, 133  Ala.  548.  A  deed  conveying  land  to 
another  on  condition  that  It  shall  revert  to 
the  grantor  or  the  happening  of  the  condi- 
tion subsequent  be  cancelled  after  such 
event  has  occurred — Davison  v.  Davison,  71 
N.  H.  180.  Where  the  bill  avers  that  com- 
plainant never  delivered  possession  to  the 
grantees  at  any  time  It  should  be  dismissed 
for  failure  to  show  that  complainant  had 
possession  when  It  was  filed — Galloway  v. 
Hendon,  131  Ala.  280.  A  devisee  seeking  to 
recover  land  from  another  in  possession  un- 
der a  deed  made  by  testator  after  his  will, 
on  the  ground  of  mental  Incapacity  and  fail- 
ure to  join  the  wife  In  a  conveyance  of  the 
homestead,  will  be  left  to  his  remedy  at  law 
— Letohatchie  Baptist  Church  v.  Bullock,  133 
Ala.  548. 

8.  Treadwell  v.  Torbert,  133  Ala.  504. 


414 


CANCELLATION. 


§  2 


as  to  a  deed,  on  consideration  that  the  grantee  should  remain  with  and  care  for 
the  grantor  during  life,  sought  to  be  set  aside  on  the  ground  of  breach  of  con- 
tract,* or  an  instrument  secured  from  complainant  by  fraud  and  misrepresenta- 
tions of  one  in  a  fiduciary  relation  toward  him,^"  or  a  suit  in  Illinois  to  set  aside 
a  deed  for  fraud,  alleged  to  be  a  cldud  on  the  title,^^  and  the  cancellation  of  a 
release  of  damages  for  personal  injuries,  obtained  by  fraud  in  equity,  will  not  be 
prevented  by  an  enactment  of  a  statute  giving  a  remedy  at  law.^-  Equity  will 
not  cancel  an  insurance  policy  for  a  fraudulent  representation  by  the  insuretl  in 
his  application,  there  being  a  complete  remedy  at  law.^^  Where  fraud  in  obtaining 
a  release  of  an  interest  in  an  estate  was  constructive  and  insufficient  for  declaring 
it  void  in  a  court  of  law,  that  defendant's  account  as  executor  was  pending  in 
a  municipal  court  for  settlement  constituted  no  ground  for  refusing  jurisdiction 
on  the  theory  that  complete  relief  could  be  had  in  a  municipal  court.^*  Where 
a  statute  provides  that  fraud  or  circumvention  used  in  obtaining  execution  of  a 
note  may  be  pleaded  in  defense  in  an  action  on  the  note,  equity  will  not  cancel 
or  order  return  of  the  note  even  though  it  contains  a  power  of  attorney  author-f 
izing  confession  of  judgment  in  term  time  or  vacation.^^ 

§  2.  Grounds  of  action;  right  to  relief.  Right  in  general. — A  grantee  in 
a  deed  executed  after  a  grantor  is  restored  to  sanity  may  sue  to  cancel  a  previous 
deed  executed  by  him  while  insane.^®  Instruments  representing  debts  already  paid 
will  be  canceled  in  equity.^^  An  assignment,  without  consideration,  of  a  policy 
on  the  life  of  her  husband  just  before  his  death,  by  a  wife  to  his  brother,  who 
was  in  close  relations  with  them,  under  circumstances  indicating  undue  influence 
and  misrepresentation,  will  be  canceled  at  her  suit  where  it  appears  that  the  hus- 
band intended  that  his  wife  and  children  should  receive  the  proceeds  and  so  indi- 
cated by  his  wili,  leaving  her  little  else  in  lieu  of  her  dower  in  valuable  property.^* 

Duress  and  mistake. — A  deed  obtained  by  duress  may  be  set  aside  by  the  gran- 
tor or  his  heirs  within  the  limitation  period,^*  but  duress  is  not  shown  where  it 
appears  that  both  fear  and  promises  contributed  to  induce  the  execution,  since 
fear  without  the  promises  might  have  proved  insufficient.^"  That  the  grantee  of 
a  deed  from  a  husband  and  his  wife  knew  of  the  bad  habits  and  tyranny  of  the  hus- 
band is  insufficient  to  show  constructive  notice  that  the  husband  procured  the  wife 
to  sign  by  eoercion.^^  Mistake  is  a  ground  for  cancellation  of  an  instrument  in 
equity,^*  if  mutual.^' 


9.  Thpre  is  no  remedy  at  law — Liowman  v. 
Crawford.  99  Va.  688,  3  Va.  Sup.  Ct.  R.  534. 

10.  Robinson  v.  Sharp,  201  111.  86. 
Clay  V.  Hammond.  199  111.  370. 
Roberts    v.    Central    Lead    Co.,    95 


Mo. 


Illinois  Life  Ins.  Co.,   100 


989. 
lo- 


ll. 

12. 

581. 

13.  Shenehon 
III.   App.  281. 

14.  Gorman  v.  McCabe   (R.  I.)   62  Atl. 
l."..     Kurd's   Rev.   St.   111.   1S99.  c.   98,   § 

Vannatta  v.   Llndley.   198   111.   40. 

16.  Clay  V.  Hammond.  199  111.  370. 

17.  Note  ^iven  to  testator  will  be  can- 
celled as  against  executrix  where  it  appears 
that  it  was  paid  before  testator's  death — 
Hoberg  v.  Haessig.  90  Mo.  App.  516.  Bonds 
and  notes  of  complainant  held  by  defendant 
as  unp.'^id  though  fully  paid — Canon  v.  Bal- 
lard. 63  N.  J.  Eq.  797. 

18.  Way  V.  Union  Cent.  Life  Ins.  Co.,  61 
S.  C.  501. 


19.  Hovorka  v.  Havlik  (Neb.)  93  N.  W 
990. 

20.  Deed  by  husband  and  wife  sought  to 
be  cancelled  at  suit  of  wife — Pratt  L.  &  I. 
Co.  V.  McClain,  135  Ala.  452. 


21. 

452. 
22. 

chase 


Pratt  L.  &  L   Co.  v.  McClain,   135   Ala. 


Failure  of  husband  to  Join  In  a  pur- 
money  mortgage  on  property  pur- 
chased by  the  wife  because  of  a  mistake  of 
the  draughtsman — Dietrich  v.  Hutchinson,  73 
Vt.  134.  Deed  made  under  a  misapprehension 
as  to  the  location  of  the  land,  and  which  con- 
veys a  wrong  tract  though  there  was  no  in- 
tent to  defraud  on  the  part  of  the  grantor — 
Fearon  L.  &  V.  Co.  v.  Wilson,  51  W.  Va.  30. 
Release  of  a  cause  of  action  for  personal 
injuries  executed  when  complainant  did  not 
fully  understand  the  nature  of  the  docu- 
ment— Roberts  v.  Central  Lead  Co.,  95  Mo. 
App.   581. 

23.     Stewart  v.  Dunn,  77  App.  Div.   (N.  T.) 
631. 


§  2 


GROUNDS  OF  ACTION. 


415 


Fraud  and  misrepresentation. — An  instrument  procured  by  fraud  may  be  can- 
celed in  equity,^*  but  it  must  appear  that  the  grantee  participated  therein  or  gave 
consideration  with  knowledge  of  the  fraud/®  and  that  he  has  made  misstatements 
whereby  the  gi'antor  has  been  misled,  or  that,  knowing  the  grantor  to  be  laboring 
under  mistake,  he  remained  silent.^®  A  power  of  attorney  executed  by  an  insane 
person,  whereby  the  attorney  conveyed  to  a  third  person  who  in  turn  conveyed  to 
the  attorney  will  be  canceled  for  fraud  together  with  the  subsequent  instruments.^^ 
Fraud  in  securing  conveyance  of  property  in  a  residence  district,  the  residents  of 
which  had  agreed  not  to  sell  to  undesirable  persons,  to  one  who  was  undesirable, 
is  sufficient  ground  for  cancellation  at  suit  of  the  grantor  though  he  suffered  no 
pecuniary  loss  and  the  consideration  was  adequate.^®  Where  an  owner  conveyec^ 
property  relying  on  a  misrepresentation  of  the  grantee  that  a  mortgage  received 
in  consideration  was  a  prior  lien,  he  is  entitled,  when  the  property  covered  bv 
the  mortgage  is  swept  away  by  foreclosure  of  prior  liens  and  the  mortgagor  is 
insolvent,  to  sue  in  equity,  to  set  aside  his  conveyance,  and  as  well,  one  from  his 
grantee  to  a  third  person  without  consideration;  that  he  destroyed  the  worthless 
mortgage  before  discovering  the  fraud  will  not  prevent  relief.^'' 

Inadequacy/  of  consideration  or  unconscionable  terms  exacted  of  complainant 
may  be  ground  of  cancellation,^**  but  a  deed  executed  by  husband  and  wife  will 
not  be  canceled,  on  behalf  of  the  wife,  merely  because  the  consideration  was,  in 
part,  an  old  debt  due  from  the  husband.^^ 

Mental  incapacity  and  undue  influence. — Where  an  instrument  is  executed  by 
one  of  insufficient  mental  powers  to  understand  its  import,  or  who  has  been  un- 
duly influenced  by  another  of  stronger  mind,  equity  will  grant  relief,^-  but  other- 


24.  Andrews  v.  Frierson.  134  Ala.  626. 
Sufficiency  of  fraud  and  misrepresentation  to 
warrant  cancellation  of  deed — Dashner  v. 
Buffington,  170  Mo.  260.  Of  evidence  to 
show  fraud,  undue  influence,  mental  in- 
capacity, or  misrepresentation  in  execution 
of  a  deed  from  mother  to  her  son — Revels  v. 
Revels.  64  S.  C.  256.  Contract  for  the  col- 
lection of  payments  on  insurance  policies  ob- 
tained through  fraud  may  be  cancelled  in 
equity  and  further  litig-ation  enjoined — Bar- 
rington  v.  Ryan,  88  Mo.  App.  85.  Misrepre- 
sentations made  by  an  intellig-ent  white 
man  to  an  ignorant  and  destitute  negro 
woman  who  had  great  confidence  In  him, 
whereby  he  secured  a  deed  of  her  land  will 
warrant  cancellation  of  the  deed — Cannon  v. 
Gilmer,  135  Ala.  302.  A  quit  claim  deed  from 
his  wife  recorded  by  a  husband  after  their 
separation  conveying  the  homestead  which 
he  had  previously  conveyed  to  her  and  had 
always  treated  as  hers  will  be  cancelled 
w^here  it  appears  that  she  never  knowingly 
executed  it — Chittenden  v.  Chittenden,  22 
Ohio  Cir.  Ct.  R.  498,  12  O.  C.  D.   526. 

25.  Pratt  L.  &  I.  Co.  v.  McClain,  135  Ala. 
452. 

26. 

631. 

27. 

28. 

29. 


Stewart  v.  Dunn,   77  App.  Div.   (N.  T.) 


Clay  V.  Hammond.   199  111.   370. 

Brett   V.   Cooney    (Conn.)    53    Atl.    729. 

Sufficiency  of  evidence  to  show  con- 
veyance of  property  in  consideration  of  the 
mortgage — Bishop  v.  Thompson.  196  111.  206. 
30.  Sufficiency  of  showing  of  unconscion- 
able contract — Coveney  v.  Pattullo  (Mich.) 
89  N.  "W.  968.  Deed  given  in  exchange  for 
worthless  mortgage — Bishop  v.  Thompson, 
196  111.    206.     That  it  is  sealed  is   no  defense 


to  a  suit  to  cancel  an  instrument  for  want 
of  consideration.  Way  v.  Union  Cent.  Life 
Ins.  Co..  61  S.  C.  501.  A  sale  of  annuities 
worth  $20,400  for  a  consideration  of  $2,700 
will  be  set  aside  as  unconscionable — Roux  v. 
Rothschild,  37  Misc.  Rep.  (N.  Y.)  435.  Where  it 
appears  that  an  attorney  has  been  suf- 
ficiently paid  for  his  services  in  defending  a 
charge  of  robbery  against  complainant,  a 
mortgage  on  his  farm  executed  by  com- 
plainant, to  the  attorney  for  additional  fees, 
will  be  set  aside  as  unconscionable — Cove- 
ney V.  Pattullo  (Mich.)  9  Detroit  Leg.  N.  26, 
89  N.  W.  968.  Where  a  deed  was  made  to 
prevent  collection  of  a  Judgment  against  the 
grantor  for  damages  and  the  ground  for 
damages  failed,  the  purpose  of  the  convey- 
ance will  not  prevent  a  suit  to  set  aside  the 
deed — Brant  v.  Brant,  115  Iowa,  701. 

31.  Pratt  L.  &  I.  Co.  v.  McClain,  135  Ala, 
452. 

32.  Sufficiency  of  evidence  to  show  mental 
incapacity  of  father  in  action  to  set  aside 
a  conveyance  to  his  son — Chidester  v.  Turn- 
bull  (Iowa)  90  N.  W.  583.  One  claiming  as 
devisee  may  recover  land  from  another  in 
possession  under  a  deed  after  the  will  on  a 
showing  of  undue  Influence — Letohatchie 
Baptist  Church  v.  Bullock,  123  Ala.  548. 
Deed  for  a  grossly  inadequate  consideration 
secured  by  an  unfair  advantage  of  the 
grantor,  who  was  mentally  weak — Walling 
V.  Thomas,  133  Ala.  426.  Release  of  a  cause 
of  action  for  personal  injuries  executed 
when  the  maker  was  so  weak  physically  and 
mentally,  because  of  his  injuries  that  he 
could  not  understand  the  nature  of  the  docu- 
ment— Roberts  v.  Central  Lead  Co.,  95  Mo. 
App.    581.     Release    of   interest   In    estate    by 


41b 


CANCELLATION. 


8   3 


wise  if  the  grantor  realized,  without  advice,  the  nature  of  the  transaction  and 
guarded  the  interests  of  those  who  should  rightfully  receive  his  property.^^ 

§  3.  Procedure.  Laches. — Delay  before  bringing  a  suit  to  set  aside  an  in- 
etrument  for  fraud  must  not  be  unreasonable,^*  and  what  constitutes  unreasonable 
delay  depends  upon  the  particular  circumstances  of  each  c&s.ef"  if  complainant 
was  ignorant  of  the  fraud  until  shortly  before  suit,  laches  cannot  be  imputed,^* 
unless  he  had  knowledge  of  facts  putting  him  on  inquiry."^  If  the  parties  are 
living  in  confidential  or  fiduciary  relations,  the  fraud  must  be  actually  discovered,'® 
and  if  complainant  relies  on  promises  of  defendant  to  settle  and  delays  suit  he 
will  be  held  blameless.^"  The  rule  is  stricter  where  fraud  is  not  shown.**  The 
period  of  legal  limitation  will  not  always  govern.** 

Conditions  precedent. — A  suit  may  be  brought  by  a  surety  to  cancel  a  bond 
for  fraudulent  representations  by  the  obligee,  though  no  action  has  been  brought 
on  the  bond.*^  Where  it  appears  that  respondent  had  secured  a  conveyance  of  prop- 
erty from  his  mother  by  fraud  and  undue  influence  and  had  attempted  to  have 
them  rescinded  on  behalf  of  the  complainant,  no  notice  of  the  rescission  was  nec- 
essary as  to  him.*' 

Eeturn  of  consideration  or  the  placing  of  the  other  party  in  statu  quo  within 


an  aged  person,  weak  and  unable  to  write 
to  an  executor  In  ignorance  of  its  contents 
and  relying  on  the  advice  of  the  executor — 
Gorman  v.  McCabe  (R.  I.)   52  Atl.  989. 

33.  Deed  of  aged  woman  who  provided 
for  her  rightful  heirs — Dean  v.  Dean  (Or.) 
70  Pac.  10.39. 

34.  Deed — Edgell  v.  Smith,  50  W.  Va.  349. 
Four  years'  unexplained  delay  is  laches;  Civ. 
Code,  §  3711 — Reynolds  &  Hamby  Estate 
Mortg.  Co.  V.  Martin  (Ga.)   42  S.  E.  796. 

33.  McGee  v.  Welch,  18  App.  D.  C.  177. 
Delay  of  18  years  with  knowledge  of  fraud 
is  fatal — Becht  v.  Becht,  168  Mo.  525.  Delay 
may  be  laches  in  suit  to  set  aside  a  release 
given  by  a  legatee  to  an  administratrix 
where  the  facts  are  rendered  uncertain  of 
proof — Lutjen  v.  Lutjen  (N.  J.  Law)  53  Atl. 
625.  Three  years'  delay  by  wife  before 
suing  to  cancel  a  deed  executed  by  her  and 
her  husband,  on  ground  of  duress  and  fraud, 
is  not  laches — Pratt  Land  &  Improvement 
Co.  V.  McClaln,  135  Ala.  452.  "Where  a  suit 
was  brought  in  the  state  court  to  set  aside 
a  release  for  wrongful  death  within  one 
month  after  a  prior  suit  for  the  same  pur- 
pose was  dismissed  from  the  federal  court 
for  want  of  jurisdiction  there  was  no  laches 
— Russell  v.  Dayton  Coal  &  Iron  Co.  (Tenn.) 
70  S.  W.  1. 

36.  Fraud  was  discovered  five  days  before 
suit — Bishop  V.  Thompson,  196  111.  206. 

37.  Facts  and  circumstances  excusing 
laches  need  not  be  alleged;  sufficiency  of 
evidence  to  show  that  complainant  had  no- 
tice of  facts  putting  him  on  inquiry  so  as  to 
constitute  laches — Coolldge  v.  Rhodes.  199 
111.  24.  Suit  to  cancel  a  mortgage  for  fraud 
brought  40  years  after  execution  and  33 
years  after  foreclosure  and  sale  will  fail 
for  laches  where  purchasers  during  that 
time  have  been  in  open  possession  of  the 
lands  and  the  original  parties  to  the  trans- 
action are  dead,  none  of  whom  it  appears 
ever  made  any  adverse  claim — De  Roux  v. 
Girard's  Ex'r   (C.  C.  A.)    112  Fed.   89. 

38.  Children  living  with  their  father  dur- 
ing many  years,  in  friendly  and  confidential 
relations,  before  discovery  that  he  claimed  to 


own  property  under  a  deed  from  their 
mother,  given  before  her  death,  are  not 
guilty  of  laches  in  failing  to  file  a  suit  for 
cancellation  of  such  deed,  on  the  ground 
that  the  mother  never  executed  it,  until  the 
actual  discovery  of  the  fact — Lewis  v.  Mc- 
Grath,  191  111.   401. 

39.  If  complainants  suing  to  set  aside  a 
deed  obtained  from  their  ancestress  by  un- 
due influence  have  continually  asserted  their 
rights  and  postponed  suit  relying  on  prom- 
ises made  by  defendant  for  nearly  three 
years  after  the  death  of  the  grantor,  they 
are  not  guilty  of  such  laches  as  to  prevent 
cancellation — Walling  v.  Thomas,  133  Ala. 
426. 

40.  Ten  years'  unexplained  delay,  by  one 
not  under  disability,  before  suing  to  cancel 
a  release  of  his  rights  in  an  estate  for  fraud, 
is  laches  where  fraud  is  not  shown,  nor  mis- 
take alleged,  though  the  consideration  may 
have  been  inadequate — Lutjen  v.  Lutjen  (N. 
J.  Law)  53  Atl.  625.  Delay  of  three  years  in 
seeking  to  cancel  a  deed  to  a  grantee  after 
deceased,  for  failure  of  consideration,  is  fa- 
tal where  the  grantor  never  sought  the  con- 
sideration during  the  grantee's  life  nor  from 
his  administrator  after  his  death  until  it 
was  impossible  to  comply  with  the  demand 
and  the  complaint  does  not  sliow  when  the 
complainant  learned  that  the  grantee  did  not 
intend  to  complete  his  contract.  The  con- 
sideration was  a  deed  to  certain  land  of  the 
grantor  which  was  never  executed — Dean  v. 
Oliver,  131  Ala.  634. 

41.  Where  a  deed  of  property  was  given  In 
consideration  that  the  grantees  should  care 
for  the  grantor  during  life,  and  the  deed  was 
recorded  at  his  death,  and  the  grantees  and 
those  claiming  under  them  were  permitted 
to  hold  the  property  and  pay  the  taxes  for 
six  years  without  any  adverse  claim  or  ex- 
cuse for  delay,  a  suit  for  cancellation  in- 
stituted by  heirs  of  the  grantor  was  barred 
by  laches  though  not  barred  by  limitation- 
Vermilion  County  Children's  Home  v.  "Var- 
ner.  192  111.  594. 

42.  Craig  V.  McKnight,  108   Tenn.  690. 

43.  Parker  v.  Simpson,  180  Mass.   334. 


§  3 


PROCEDURE. 


41 : 


a  reasonable  time  is  a  necessary  condition  precedent  to  an  action  to  set  aside  an 
instrument  for  I'rand  or  undue  influence/*  unless  the  failure  so  to  do  is  excused 
for  good  reason,*^  or  it  appears  that  the  use  of  the  property  conveyed  during  de- 
fendant's possession  has  been  of  a  greater  value  than  the  consideration  received  by 
complainant/^  since  equity  proceeds  on  the  principle  that  a  transaction  should  not 
have  taken  place  and  the  parties  must  be  placed  as  nearly  as  possible  in  the  position 
they  would  have  occupied  had  there  never  been  any  such  contract.*'^  The  return 
of  worthless  property  is  unnecessary/^  nor  is  it  necessary  that  the  property  be 
returned  in  the  condition  in  which  complainant  received  it.*'  A  retiring  partner, 
seeking  to  set  aside  an  amicable  settlement  for  fraud  of  the  continuing  partner, 
need  not  offer  to  return  the  amount  received  in  such  settlement.^"  In  an  action  by 
heirs  to  set  aside  a  deed  of  the  ancestor,  for  fraud  while  she  was  mentally  weak, 
an  oiler  of  restitution  is  unnecessary  where  an  offer  was  made  by  amendment  to 
account  for  the  value  of  services  rendered  to  the  ancestor."^  Cancellation  of  a 
building  and  loan  mortgage  and  contract  because  it  does  not  represent  the  real 
contract  but  is  a  mere  device  to  avoid  usury  laws  will  not  be  refused  for  failure 
of  payment  of  the  debt  and  legal  interest.^^ 

Parties  and  pleading.^^ — The  grantor  need  not  be  joined  in  a  suit  bv  one 
claiming  to  be  the  equitable  owner  to  set  aside  a  deed  where  both  parties  to  the 
suit  admit,  that  by  the  deed,  defendant  acquired  all  his  interest.^*  A  husband 
by  whom  she  had  children  is  prima  facie  invested  with  title  to  the  curtesy  on  con- 


44.  Meyer  v.  Flshburn  (Neb.)  91  N.  W. 
534.  Trust  deed  of  homestead  executed  by 
husband  and  wife — Hirzel  v.  Schwartz  (Colo. 
App.)  68  Pac.  1056.  CanceUatlon  of  release 
for  personal  injuries — Roberts  v.  Central 
Lead  Co.,  95  Mo.  App.  581;  Hill  v.  Northern 
Pac.  R.  Co.  (C.  C.  A.)  113  Fed.  914.  Where 
a  deed  was  executed  for  a  debt  for  w^hich  a 
note  and  mortgage  on  a  homestead  had  pre- 
viously been  given,  the  debtors  to  keep  pos- 
session and  sell  the  property  within  nine 
months,  retaining  the  proceeds  after  pay- 
ment of  the  debt,  the  deed  would  not  be  set 
aside  for  failure  to  return  the  note  and 
mortgage  when  such  return  was  not  neces- 
sary to  execution  of  the  deed  and  was  not 
unreasonably  delayed — Snyder  v.  Nichols,  64 
Kan.  886,  67  Pac.  886. 

45.  Trust  deed  given  in  security  of  chattel 
mortgage  debt — Fry  v.   Piersol,   166   Mo.    429. 

46.  Walling  v.  Thomas,  133  Ala.  426.  The 
deed  was  alleged  to  be  void  as  inconsistent 
with  provisions  of  a  will  under  which  the 
land  was  held — Call  v.  Shewmaker,  24  Ky. 
Law  Rep.  686,   69  S.  W.  749. 

47.  Bell  V.  Felt.  102  111.  App.  218. 

48.  Worthless  notes  and  mortgages  given 
in  consideration — Bishop  v.  Thompson,  196 
111.   206. 

49.  Bell  V.  Felt,  102  111.  App.  218. 

50.  Menzenhauer  v.  Schmidt,  63  N.  J.  Eq. 
463. 

51.  Eagan  v.  Conway,   115  Ga.  130. 

52.  Walter  v.  Mutual  Home  Sav.  Ass'n 
(Tex.   Civ.   App.)    68   S.  W.  536. 

53.  Parties  in  a  suit  to  cancel  a  bond — 
Craig  V.  McKnight,  108  Tenn.  690.  Suffi- 
ciency of  allegations  in  bill  to  show  duress 
(Glass  V.  Haygood,  133  Ala.  489);  of  mental 
incapacity  of  grantor  to  contract  (Eagan  v. 
Conway,  115  Ga.  130);  of  mental  incapacity 
and  duress  (Walling  v.  Thomas,  133  Ala. 
426);  of  fraud  and  mental  Incapacity  (Combs 
V.  Combs,  23  Ky.  Law  Rep.  1264,  65  S.  W.  13); 
of  allegations  of  fraud  in  securing  a  deed 
(Johnson  v.  Velve,   86  Minn.   46);    of  allega- 

Curr.  Law — 27. 


tlons  of  mental  incapacity  in  bill  for  cancel- 
lation of  a  contract  (Eagan  v.  Conway,  115 
Ga.  130);  of  allegations  in  regard  to  con- 
tract sought  to  be  set  aside  as  showing  that 
defendant  was  a  creditor  of  the  grantor's 
estate — Eagan  v.  Conway,  115  Ga.  130.  Ma- 
teriality of  issues  in  suit  for  cancellation 
of  deed  from  parent  to  child  in  considera- 
tion of  support  of  parent — Payette  v.  Fer- 
rier   (Wash.)    71  Pac.  546. 

Parties.  (Note.)  Actions  for  cancellation 
of  instruments  must  depend  upon  the  pecul- 
iar circumstances  of  each  case  in  determin- 
ing who  shall  be  made  parties  thereto,  but 
the  general  rule  that  all  persons  whose  in- 
terests would  be  affected  by  the  cancella- 
tion must  be  made  parties  will  always  ap- 
ply— Pomeroy,  Code  Remedies,  §  379.  So  in 
an  action  to  set  aside  an  award,  the  arbi- 
trators, having  no  interest  in  the  subject 
matter  and  not  liable  to  be  affected  by  the 
result  of  the  action,  cannot  be  made  defend- 
ants— Knowlton  v.  Mickles,  29  Barb.  (N.  Y.) 
465;  nor  will  the  conveyance  of  part  of  a 
tract  of  land  to  a  third  person,  prior  to  the 
filing  of  a  bill  for  cancellation  of  a  fraudu- 
lent conveyance  of  the  whole,  render  the 
grantee  in  the  second  conveyance  a  neces- 
sary party  to  the  suit — Fletcher,  Eq.  PI.  & 
Pr.  p.  61;  Billings  v.  Aspen  Mining  Co.,  51 
Fed.  338. 

The  joinder  of  plaintiffs  in  suits  of  this 
kind  depends  entirely  upon  whether  the 
fraudulent  acts  resulting  in  injury  to  them 
are  the  same  as  to  each  particular  plaintiff 
and  result  from  the  same  means  and  in  iden- 
tical results  except  as  to  the  amount  of  the 
injury — Fletcher,  Eq.  PI.  &  Pr.  p.  72.  So  it 
has  been  held  that  persons  subscribing  to 
capital  stock  on  false  representation  of  the 
condition  of  the  corporate  capital  and  busi- 
ness prospects  may  join  In  a  bill  for  can- 
cellation of  their  subscriptions,  where  it  ap- 
pears that  they  acted  jointly  in  the  whole 
transaction^Id.,   and   cases   there  cited. 

54.     Mackay  v.  Gabel,  117  Fed.  873. 


418 


CANCEJ-,LAT10JN. 


§   3 


veyance  of  realty  to  his  wife,  and  should  be  joined  as  defendant  in  a  suit  against 
her  to  cancel  the  deed  for  fraud,  so  that  he  may  join  in  reconveyance;  and  this, 
even  though  he  would  take  no  interest  by  curtesy  on  failure  to  join.^'  Where  a 
grantor  improperly  brought  suit  in  equity  for  cancellation,  he  may  remedy  the 
defect  by  filing  the  appropriate  count  at  law  amending  the  bill.^®  A  bill  in  equity 
for  cancellation  of  a  deed  must  show  that  complainant  was  in  possession  when  it 
was  filed.°^  An  allegation  that  the  grantee  offered  to  reconvey  land  and  that 
such  offer  is  still  held  good  is  sufficient  to  show  that  he  is  able  to  reconvey.*"  A 
bill  to  cancel  a  deed  for  undue  influence  need  not  allege  the  manner  in  which  the 
influence  was  asserted  if  it  alleges  who  asserted  the  influence.^^  A  petition  to 
cancel  a  mortgage  for  duress  will  not  lie,  where  it  is  not  averred  that  complainant 
did  not  owe  the  debt  which  the  mortgage  was  executed  to  secure.^®  A  complaint 
to  cancel  a  deed  by  plaintiff's  testator,  alleging  undue  influence,  incapacity,  and 
weakness  of  mind  of  decedent,  is  sufficient,  unless  on  special  demurrer,  though  it 
does  not  directly  allege  fraud,*^  A  bill  to  set  aside  a  trust  deed  must  set  out 
facts  enabling  defendants  to  answer  without  embarrasssment  or  it  will  be  dis- 
missed.^^ Intimate  relations  of  friendship  between  the  parties  need  not  be  spe- 
cially pleaded  in  order  to  be  proved.®'  The  facts  constituting  fraud  alleged  as 
the  ground  in  a  cross  bill  for  cancellation  of  a  mortgage  must  be  particularly 
shown  and  a  general  allegation  is  insufficient.®*  An  allegation  in  a  complaint  to 
rescind  a  conveyance  for  fraud,  that  the  grantor  showing  the  grantee  a  fertile  an^ 
well  timbered  tract  of  land  during  the  negotiations  but  conveyed  to  him  a  rough, 
timberless,  and  valueless  tract,  sufl&ciently  alleges  injury  to  the  grantee.®"  Alle- 
gations in  a  petition  to  set  aside  a  conveyance,  that  the  vendees  knew  the  value  of 
land  and  fraudulently  concealed  it  from  the  grantor,  knowing  his  ignorance  there- 
of, are  material  in  connection  with  other  appropriate  allegations.®®  Allegations 
that  the  execution  of  a  deed  was  procured  by  fraud  and  undue  influence,  that 
the  grantor  was  weak  in  mind  and  incompetent  to  manage  his  affairs  and  that  de- 
fendant knowing  this  had  complete  control  over  his  mind  and  property,  and,  tak- 
ing advantage  thereof,  procured  the  deed  without  consideration,  sufficiently  alleges* 
the  fraud.®''  A  petition  setting  forth  with  sufficient  clearness  alleged  fraud  and 
artifice  practiced  to  secure  a  conveyance  will  not  be  subject  to  demurrer  for  vague- 
ness, and  if  it  alleges  that  when  the  contract  was  made  the  grantor  was  old,  with- 
out memory,  and  incapable  of  transacting  business,  it  is  not  liable  to  a  general  de- 
murrer for  a  failure  to  allege  that  she  remained  so  incapable  until  her  death.®® 
A  grantor  seeking  to  set  aside  a  deed  for  fraud  in  representations  must  allege  and 
prove  the  misrepresentations,  that  they  were  false,  that  he  believed  them  true  and 
relied  and  acted  upon  them;  if  the  allegations  of  the  complaint  confuse  the  the- 
ories of  the  contract  sought  to  be  canceled  so  that  insufficient  facts  are  shown  to 
sustain  any  particular  theory,  it  is  insufficient.®*  In  a  suit  to  cancel  a  power  of 
attorney  in  a  deed  executed  by  a  person  claimed  to  be  insane  brought  by  a  grantee 
of  the  premises  in  a  deed  executed  after  his  restoration  to  sanity,  it  is  immaterial 


55.  Construction  of  Gen.  Laws  R.  I.  c. 
194,  §  16.  with  Pub.  St.  R.  I.,  c.  166,  §  16;  also 
Gen.  Laws,  c.  194,  §  1,  as  to  rigrht  of  husband 
In  realty  conveyed  to  wife — Gorman  v.  Mc- 
Hale  (R.  I.)  52  Atl.  1083. 

56.  Davison  v.  Davison,  71  N.  H.  180. 

57.  Galloway  v.  Hendon.  131  Ala.   280. 
68.     Lockwood  v.   Allen.  113  "Wis.   474. 

59.  Letohatchle  Baptist  Church  v.  Bul- 
lock,  133  Ala.   548. 

60.  Fry  v.  Piersol,   166  Mo.   429. 

61.  Collins  V.  O'Laverty,  136  Cal.  31. 

62.  "Wolters  v.  Schrafft  (N.  J.  Law)  52 
Atl.   694, 


63.  Wells  V.  Houston  (Tex.  Civ.  App.)  69 
S.   W.   183. 

64.  Mortimer  v.  McMullen,  102  111.  App. 
593. 

65.  Under  the  rule  as  to  liberal  construc- 
tion of  pleadings — Lockwood  v.  Allen,  113 
Wis.  474. 

66.  Wells  V.  Houston  (Tex.  Civ.  App.)  69 
S.  W.  183. 

67.  Johnson  v.  Velve,   86  Minn.   46. 

68.  Eagan  v.  Conway,  115  Ga.  130. 

69.  Grentner  v.  Fehrenschield,  64  Kan.  764, 
68   Pac.    619. 


§3 


PROCEDURE. 


419 


what  consideration  was  paid  by  plaintiff  for  his  conveyanceJ"  In  a  suit  by  heirs 
to  cancel  a  deed  of  their  ancestor,  for  fraud  used  while  she  was  mentally  incompe- 
tent, an  amendment  to  the  bill  offering  to  account  for  the  value  of  services  ren- 
dered to  the  ancestor  by  defendant  as  her  agent  was  sufficient  as  an  offer  of  resti-i 
tution.''^  In  a  suit  for  cancellation  of  a  bond  and  mortgage  the  instruments  need 
not  be  made  a  part  of  the  complaint  or  filed  therewithj^  In  an  action  to  cancel 
a  deed  for  excess  of  authority  in  execution  by  plaintiff's  agent,  evidence  that  plain- 
tiff enlarged  the  agent's  authority  is  not  admissible  where  no  averment  of  such 
enlargement  was  made  in  the  answer  J  ^ 

Evidence  and  questions  of  fact?*" — In  a  suit  for  cancellation,  one  who  derives 
a  benefit  from  the  instrument  must  show  the  fairness  of  the  transaction.'^^  Com- 
plainant must  prove  fraud  alleged  as  ground  for  cancellation  of  an  instrument, 
even  though,  for  want  of  personal  knowledge  by  defendants,  their  answer  lacks 
the  force  of  an  answer  imder  oath  made  on  actual  knowledge.'^®  Where  defend- 
ant in  foreclosure  sets  up  fraud  in  securing  the  note  and  mortgage  and  asks  for 
cancellation  by  cross  bill,  the  burden  of  proving  fraud  is  upon  her."  That  a 
conveyance  is  made  by  a  father  to  his  son  while  residing  with  the  son  will  not 
suffice  to  show  it  presumptively  fraudulent  so  as  to  shift  the  burden  of  proof  of 
want  of  undue  influence  to  the  grantee,  though  the  conveyance  deprives  other  chil- 
dren of  their  share  in  the  property.''*  In  a  suit  for  cancellation  of  a  mortgage 
for  duress,  plaintiff  must  show,  by  a  preponderance  of  the  evidence,  that  he  made 
the  mortgage  to  escape  criminal  prosecution.''®  Evidence  that  the  agreed  price 
was  the  value  of  the  land  cannot  be  heard  in  an  action  to  cancel  a  deed  because 
executed  by  an  agent  in  excess  of  his  authority.^"  Inadequacy  of  consideration  is 
not  necessarily  conclusive  evidence  of  fraud  in  the  execution  of  a  convevance.^^ 
Parol  evidence  to  set  aside  a  written  contract  for  fraud,  accident,  or  mistake,  must 
concern  what  occurred  contemporaneously  with  execution  of  the  document  and 


70.  Clay  v.  Hammond,   199  111.  370. 

71.  Eag-an  v.  Conway,  115  Ga.  130. 

72.  Marley  v.  National  Bldg.,  Loan  &  Sav. 
Ass'n,    28    Ind.    App.    369. 

73.  Morton  v.  Morris,  27  Tex.  Civ.  App. 
262. 

74.  Admissibility  of  evidence,  in  a  suit  to 
cancel  a  contract  for  the  sale  of  cotton,  as 
to  the  manner  of  baling  cotton  and  improve- 
ments therein  after  the  making  of  the  con- 
tract— American  Cotton  Co.  v.  Collier  (Tex. 
Civ.  App.)  69  S.  W.  1021.  Sufficiency  of  evi- 
dence of  mistake  (Stewart  v.  Dunn,  77  App. 
Div.  631);  of  mental  incapacity  to  execute 
deed  (Wilson  v.  Jackson,  167  Mo.  135);  of 
mental  Incapacity  to  execute  a  trust  deed 
(Tatum  V.  Tatum's  Adm'r  [Va.]  43  S.  E.  184) ; 
of  mental  Incapacity  at  time  of  executing  a 
mortgage  (Beatty  v.  Somerville,  102  111.  App. 
487);  of  evidence  to  show  that  a  trust  deed 
was  executed  without  duress  (Bogue  v. 
Franks,  199  111.  411);  to  show  that  the  as- 
signment of  a  ground  lease  was  without 
fraud  (Sheehan  v.  Erbe,  77  App.  Div.  176); 
of  evidence  as  depending  on  weight  and 
credibility  of  witnesses  (Frank  v.  Schloss 
[N.  Y.]  37  Misc.  Rep.  140);  to  show  that  no 
undue  influence  was  used  in  securing  execu- 
tion of  a  deed  (Vinson  v.  Scott,  198  111.  144); 
to  show  mental  capacity  to  execute  a  deed 
(Vinson  V.  Scott,  198  111.  144);  to  show  that 
an  offer  to  place  the  other  party  in  statu  quo 
was  made  in  reasonable  time  (Meyer  v.  Fish- 
burn  [Neb.]  91  N.  W.  534);  to  cancel  deed 
to  grantor's  granddaughter  for  fraud  and 
undue  influence  (Haynes  v.  Harriman  [Wis.] 
92  N.  W.  1100);    of  evidence  of  acquiescence 


by  complainant  in  breach  of  a  condition  sub- 
sequent by  a  railroad  company  of  provisions 
in  a  deed  granting  the  company  complain- 
ant's land  (Dickson  v.  St.  Louis  &  K.  R.  Co., 
168  Mo.  90);  of  evidence.  In  suit  by  admin- 
istrator to  cancel  testator's  deed  for  fraud, 
to  carry  to  the  jury  the  issue  whether  the  in- 
strument contained  the  real  contract  be- 
tween the  parties  (Carpenter  v.  Bradshaw 
[Ga.]  42  S.  E.  1016);  of  evidence  to  establish 
lien  on  property  received  from  her  father's 
estate  conveyed  by  a  daughter  to  her 
brother  for  services  in  care  of  the  daughter 
and  father  by  the  son  in  a  suit  by  the  daugh- 
ter to  set  aside  her  deed  as  against  the 
son's  widow — Domllng  v.  Domling,  8  Det. 
Leg.  N.  786,  87  N.  W.  788.  Sufficiency  of  in- 
structions as  to  ratification  of  execution  of 
contract  and  deeds  sought  to  be  cancelled — 
American  Cotton  Co.  v.  Collier  (Tex.  Civ. 
App.)  69  S.  W.  1021. 

75.  Cannon  v.  Gilmer,  135  Ala.  302. 

76.  De    Roux   v.    Girard's    Ex'r    (C.    C.   A.) 
112  Fed.  89. 

77.  Mortimer    v.    McMullen,    102    111.    App. 


Chldester  v.  Turnbull  (Iowa)  90  N.  W. 

Fry  V.  Plersol,   166  Mo.   429. 

Morton   v.    Morris,    27    Tex.    Civ.    App. 


593. 

78. 
583. 

79. 

80. 
262. 

81.  An  Instruction  directing  the  Jury  to 
find  that  the  conveyance  was  procured  by 
fraud,  If  the  consideration  was  so  Inadequate 
as  to  shock  the  conscience  was  incorrect — 
Wells  v.  Houston  (Tex.  Civ.  App.)  69  S.  W. 
183. 


420 


CANCELLATION. 


§  3 


what  secured  its  execution  and  must  be  clear  and  precise  in  order  that  the  case 
may  be  submitted  to  the  jury."  Whether  an  offer  to  return  consideration  or  place 
the  other  party  in  statu  quo  was  made  in  reasonable  time  is  a  mixed  question  of 
law  and  fact.^'  The  question  of  ratification  of  a  conveyance  of  an  expectant  es- 
tate secured  by  fraud  of  the  grantee  for  an  inadequate  consideration  is  for  the 
jury,  where  evidence  appears  reasonable,  tending  to  show  that  at  the  time  of  the 
alleged  ratification  he  knew  no  more  about  the  transaction  than  at  the  time  of 
execution.^* 

Findings  and  judgment.'^ — Wliere  facts  sufficient  to  require  cancellation  for 
fraud  and  mental  incapacity  were  pleaded  by  plaintiff,  and  sufficient  evidence  ap- 
pears to  sustain  the  allegation,  defendant  suffers  no  injury  because  the  jury  was 
required  to  make  certain  additional  findings  though  their  submission  was  not  justi- 
fied by  the  evidence.®^  A  verdict  for  cancellation  of  a  deed  is  sufficient  wKere 
the  description  of  property  in  the  petition  is  practically  that  in  the  deed  so  that 
tlie  property  is  fully  identified.®'^  If  it  appears  in  an  action  to  rescind  a  convey- 
ance for  fraud,  that  there  was  no  evidence  of  any  change  in  the  contract,  but  the 
making  of  the  deed  and  the  execution  of  a  mortgage  to  secure  the  purchase  price 
were  admitted,  the  court  was  warranted  in  finding  that  the  grantee  held  the  land 
unencumbered  except  for  the  purchase  price  mortgage.^®  Cancellation  of  a  con- 
veyance by  an  aged  person,  mentally  incompetent,  conveying  land  and  vesting  title 
to  cash  at  suit  of  the  heirs  at  law  after  death  of  the  grantor,  relates  to  the  realty 
and  the  court  having  taken  jurisdiction  may  retain  it  to  recover  the  money.®*  A 
decree  dismissing  a  suit  for  cancellation  of  a  note  should  not  contain  findings  whicTi 
may  prejudice  an  action  on  the  note.*"  Where  the  prayer  for  relief  asks  that  de- 
fendant be  ordered  to  restore  personal  property  received  from  plaintiff  as  far  as 
possible,  defendant  is  entitled,  on  a  decree  against  him,  to  deliver  any  articles 
found  to  have  been  wrongfully  obtained  and  receive  credit  therefor  on  the  amount 
charged  against  him.*^  Where  the  court  in  a  suit  for  cancellation  for  fraucf  of 
the  grantee  required  the  grantee  to  execute  to  the  grantor  a  deed  in  fee  and  free 
Irom  all  incumbrances,  except  a  purchase-money  mortgage  which  was  received  from 
the  grantee  as  a  condition  for  entering  of  a  judgment  for  the  grantee  rescinding 
the  conveyance  to  him  for  fraud,  the  grantor's  rights  were  fully  protected. ^^  Where 
an  attorney,  employed  to  perfect  the  title  of  land  sold  at  the  expense  of  the 
grantor,  secured  a  cancellation  of  a  mortgage  covering  part  of  the  purchase  price 
and  another  loan,  at  the  instance  of  the  grantee  and  without  the  knowledge  of  the 
grantor,  the  latter  may  have  the  cancellation  set  aside  as  fraudulent.*'  Where  a 
father  deeded  land  to  a  son  in  consideration  of  the  care  of  his  parents  during  life 
and  payment  of  certain  sums  to  his  brothers,  and  after  compliance  for  several 
years  the  son  died  leaving  a  wife  but  no  children,  in  a  suit  by  the  brothers  to 
determine  the  interests  of  the  wife  in  the  farm  and  recover  the  title,  a  decree  was 
properly  granted,  on  condition  that  the  wife  be  paid  $500,  and  that  the  brothers 
restore  to  her  the  notes  given  to  them  by  her  husband  for  the  pa3Tnent  of  the 
sums  coming  to  them  from  their  father's  estate.** 


Nettleton   v.    Caryl,    20    Pa.    Super.    Ct. 
Meyer    v.    Fishburn    (Neb.)    92    N.    W. 


82. 
250. 

83 
534. 

84.  "Wells  V.  Houston  (Tex.  Civ.  App.)  69 
S.    W.    183. 

85.  Conclusiveness  of  findings  as  to  mis- 
representations and  undue  influence  in  se- 
curing a  sale  of  lands  at  greatly  inadequate 
consideration  on  the  question  of  setting  the 
sale  aside — Coile  v.  Hudgins  (Tenn.)  70  S.  W. 
56. 


8C.     "Wells  V.  Houston   (Tex.  Civ.  App.)    69 
S.    "W.    183. 

87.  American  Cotton  Co.   v.    Collier    (Tex. 
Civ.  App.)    69  S.  "W.   1021. 

88.  Lockwood  V.  Allen,  113  "Wis.  474. 

89.  Eagan  v.  Conway.  115  Ga.  130. 

90.  "Vannatta  v.  Lindley,  198  111.  40. 

91.  Parker  v.   Simpson,  180  Mass.   334. 

92.  Lockwood  v.  Allen,   113  "Wis.   474. 

93.  Renner  v.  Kannally,  193  111.  212. 

94.  Coe   V.   Dickerson,   8  Det.  Leg.   N.   8SS. 
87  N.  "W.   1028. 


CURRENT  LAW 

(Copyrighted  1903,  by  John  B.  West  company.) 


Volume  I. 


NOVEiMBER,  1903 


NUMBBB  4. 


CARRIEBS.i 


Pabt  I.     In   General. 

§  1.     Definitions  and  Distinctions. 

§  2.  Duty  to  Undertake  and  Provide  Car- 
riage; Discrimination;  Penalties. — Charges; 
Statutory  Provisions;  Definitions;  Indictment 
and  Prosecution. 

§  3.  Kig-lits  and  Relations  bet-iveen  Car- 
rier and  Connecting;  Carrier,  Draymen  or 
Transfer  Men. 

Pakt  II.     Carriage  of  Goods. 

§  4.  Delivery  to  Carrier  and  Inception  of 
Liability. 

§  5.  Contracts  for  Carriage. — Failure  to 
Furnish  Cars. 

§  6.  Bills  of  Lading. — Conclusiveness;  In- 
terpretation;  Indorsement  and  Transfer. 

§  7.  Delay  In  Transportation  and  Deliv- 
ery. 

§  8.  Loss  of  or  Injury  to  Goods. — Damage 
by  Water  and  Storms;  Fire;  Effect  of  Failure 
to  Disclose  Value;   Effect   of  Acceptance. 

§  9.  Delivery  by  Carrier. — Notice  of  Ar- 
rival; Duty  to  Require  Bill  of  Lading;  Place 
of  Delivery;  Wrongful  Delivery;  Liability 
for  Conversion;  Shipments  C.  O.  D. ;  Refused 
Shipments. 

§  10.  Carrier  as  Warehouseman. — Care 
Required. 

§  11.  Liability  of  Carrier  or  Connecting 
Carrier. — Limitation  of  Liability;  Delivery 
to  Succeeding  Carrier;  Loss  or  Injury;  Statu- 
tory Regulations. 

§  12.  Limitation  of  Liability. — Particular 
Limitation;  Limitations  as  to  Amount;  As- 
sent to  Limitations;  Waiver. 

§  13.  Remedies  and  Procedure. — Persons 
Who  May  Sue;  Form  of  Action;  Venue; 
Pleading;  Burden  of  Proof;  Evidence;  In- 
structions. 

§  14.  Freight  and  Other  Charges. — Estab- 
lishment of  Commission  Rates;  Rebates; 
Persons  Liable  for  Freight;  Advances  by 
Carrier;  Demurrage;  Liens  and  Enforcement; 
Recovery  of  Overpayments;  Actions  for 
Charges. 

Part  III.    Carriage  of  Live-Stock. 

§  15.  Duty  to  Carry  and  Contract  of  Car- 
riage Generally. 

§  16.     Care  Required  of  Carrier. — Delays. 

§  17.     Delivery. 

§  18.  Liability  of  Carrier  or  Connecting 
Carrier. — Through    Contracts;    Limitation    of 


Liability;  Duty  to  Deliver;  Delay;  Liability 
of  Final  Carrier. 

§  19.  Limitation  of  Liability. — Limitations 
as  to  Amount;  Consideration  for  Limitation; 
Assent;  Provisions  for  Personal  Care  of 
Shipper;  Provisions  for  Notice  of  Injury; 
Waiver. 

§  20.  Procedure  in  Actions  Relating  to 
Carriage  of  Stock. — Venue;  Limitations  and 
Conditions;  Who  May  Sue;  Pleading;  Burden 
of  Proof;   Evidence;   Instructions;   Judgment. 

§  21.  Damages. — Elements;  In  Case  of 
Connecting  Carriers. 

Part    IV.     Carriage    of    Passengers. 

§  22.  Duty  to  Undertake  and  Provide  Car- 
riage.— Who  are  Passengers;  When  Relation 
Begins;  When  Relation  Ceases;  Persons  on 
Other  Than  Passenger  Trains. 

§  23.  Contracts  and  Tickets. — The  Con- 
tract in  General;  Discrimination;  Statutory 
Regulations  of  Fare;  Mileage  Books, 
Through  Contracts;  Regulation  of  Sale  of 
Tickets;  Right  to  Use  Tickets;  Rights  on 
Loss  of  Tickets;  Round  Trip  Tickets;  Lim- 
ited Tickets;  Stop-over  Privileges;  Redemp- 
tion of  Tickets;  Actions  for  Failure  to  Carry 
or  Honor  Tickets;  Sufficiency  of  Perform- 
ance of  Contract;  Actions  for  Failure  to  Per- 
form. 

§  24.  Extra  Charges  Where  Tickets  are 
Not  Procured  and  Other  Regulations. 

§  25.  Kjection  of  Passengers. — Persons 
Without  Ticket  or  Refusing  to  Pay  Fare; 
Persons  Refusing  to  Pay  Extra  Charges; 
Persons  With  Defective  Tickets;  Inter- 
changeable Mileage;  Defective  Transfers; 
Right  to  Tender  Fare  After  Refusal;  Pas- 
senger on  Wrong  Train;  Passenger  Misbe- 
having; Place;  Manner;  Injuries  Caused  by 
Passenger's  Conduct;  Actions;  Pleading; 
Burden  of  Proof;  Evidence;  Instructions; 
Elements  and  Measure  of  Damages;  Exem- 
plary and  Punitive  Damages. 

§  26.  Liability  for  Personal  Injuries. — A. 
General  Principles. — What  Law  Governs;  De- 
gree of  Care  Demanded;  Non-incidental  Dan- 
gers; Freight  Trains;  Cabs;  Free  Passen- 
gers; Intoxicated  or  Disabled  Passengers; 
Carriers  Using  Cars  or  Premises  of  Others; 
Union  Stations. 

B.  Condition  and  Care  of  Premises. — Duty 
to  Warm  Stations;  To  Furnish  Safe  Plat- 
forms; To  Light  Platforms  and  Premises; 
Liability  for  Objects  Near  Tracks. 


1.  See  articles  "Railroads,"  "Street  Rail- 
ways," for  all  questions  of  the  rights  and 
liabilities  of  such  carriers  not  arising  from 
the  actual  carriage  of  goods  and  passengers, 
such    as    control    by    state    or    municipality, 


duties  toward  third  persons  and  trespassers, 
and  liability  to  fence  and  protect  right  of 
way.  See  article  "Master  and  Servant"  for 
injuries  to  employes.  Consult  also  article 
"Shipping  and  Water  Traffic." 


(421) 


422 


CARRIERS— IN  GENERAL. 


§   1 


C.  Taking  on  Passengers. — Duty  to  Afford 
Sufficient  Time;  Starting  Before  Passenger  is 
Seated. 

D.  Means  and  Facilities  of  Transportation. 

— Nature  of  Accommodations;  Construction 
of  Tracks;  Care  as  to  Adjacent  Objects;  Con- 
struction of  Cars;  Use  of  Approved  Appli- 
ances; Inspection;  Prevention  of  Exposure 
to  Danger. 

E.  Operation  and  Managrement  of  Trains 
and  Other  Veliicles. — Frightening  and  Mis- 
leading Passengers;  Sudden  Jerks;  Mixed 
Freight  and  Cattle  Trains;  Collisions;  Pass- 
ing Trains  Receiving  or  Discharging  Passen- 
gers. 

F.  Setting  Doim  Passenger. — Duty  to  An- 
nounce Stations;  Duty  Not  to  Mislead  Pas- 
sengers; Duty  Not  to  Carry  By;  To  Provide 
Safe  Place  to  Alight;  To  Assist  Passenger; 
Starting  While  Passenger  is  Getting  Off; 
Carriers  by  Water. 

G.  Protection  from  Otlier  Passengers, 
Train  Creiv  or  Third  Persons. — Assaults  and 
Injuries;  Unwarranted  Acts  of  Third  Per- 
sons. 

H.  Contributory  Negligence  of  Passenger. 
— Acts  Under  Impulse  of  Sudden  Danger; 
Acts  Under  Direction  of  Employes;  Negli- 
gence    In     Approaching     Car     or     Train;     In 


Boarding  a  Moving  Train;  Crowded  Car; 
Riding  in  Dangerous  Position;  Riding  on 
Platform  of  Street  Car;  Platform  of  Railroad 
Train;  Allowing  Body  to  Project;  Acts  Pre- 
paratory to  Getting  Off;  Leaving  Moving 
Train;  Alighting  in  Dangerous  Place;  Care 
After  Alighting;  Passengers  in  Cabs;  Mis- 
cellaneous Acts;  Questions  for  the  Jury. 

I.  Liability  of  Initial  or  Connecting  Car- 
rier. 

J.  Limitation  of  Liability. — Provisions  in 
Passes;  Contracts  With  Employes  of  Sleep- 
ing Car  Companies. 

K.  Damages. — Elements;  Excessive  and 
Punitive  Damages. 

L.  Remedies  and  Procedure. — Form  of  Ac- 
tion; Venue;  Defenses;  Pleading;  Presump- 
tions; Admissibility  and  Sufficiency  of  Evi- 
dence; Instructions;  Questions  for  the  Jury; 
Verdict  and  Findings. 

Paet   V.     Carriage   of    Baggage   and    Pas- 
sengers' Effects. 

§  27.  Rights,  Duties  and  Liabilities. 

§  2S.  Care  of  Baggage  and  E^ffects. 

§  29.  Limitation  of  Liability. 

§  30.  Damages. 

§  31.  Remedies    and   Procedure. 


Part  1.  In  general.  §  1.  Definitions  and  distinctions. — One  who  travels  be- 
tween certain  points  and  openly  professes  to  carry  goods  for  all  such  persons  as 
choose  to  employ  him  is  a  common  carrier.''  A  storage  company  which  engages 
in  moving  household  goods  is  not,^  nor  is  the  driver  of  a  licensed  bus  necessarily 
so.*     Operators  of  passenger  elevators  are  carriers."* 

§  2.  Duty  to  undertake  and  provide  carriage;  discrimination;  penalties.^ — A 
carrier  is  bound  to  receive  and  transport  freight  from  all  persons  similarly  situat- 
ed/ though  it  may  fix  for  itself  the  limits  within  which  it  will  act  as  a  common 
carrier  if  it  act  in  good  faith  and  without  discrimination.^  The  carrier  cannot  re- 
fuse shipments  except  such  as  are  to  be  sold  to  a  certain  person,  even  though  the 
refusal  is  applied  to  all  shippers.' 

Charges  of  common  carriers  may  be  regulated  by  the  legislature,"  but  should 
not  be  so  reduced  as  to  render  operation  of  the  road  infeasible.^^  A  carrier  may 
charge  a  less  rate  than  that  fixed  by  the  railroad  commission  if  discrimination  is 
not  made,  and  if  it  is  attempted  to  exact  the  maximum  rate  after  an  agreement 
to  carry  for  less,  the  shipper  may  recover  back  the  overcharged^  "Where  goods 
consigned  to  a  point  in  the  state  are  sold  to  a  person  without  the  state,  and  by 


2.  Swift  &  Co.  V.  Ronan,  103  111.  App.  476. 

3.  In  a  sense  entitling  it  to  a  lien  for 
charges — Thompson  v.  Storage  Co.  (Mo.  App.) 
70    S.    W.    938. 

4.  Atlantic  City  v.  Dehn  (N.  J.  Sup.)  54 
Atl.  220. 

5.  Chicago  Exch.  BIdg.  Co.  v.  Nelson,  197 
III.  334;  Beidler  v.  Branshaw,  102  111.  App. 
187. 

6.  See  "Commerce"  for  questions  under 
the  Interstate  commerce  act.  See  post.  §  14, 
for  general  questions  of  freight  and  de- 
murrage charges.  Discrimination  In  passen- 
ger rates,  see  post,  §  23. 

7.  A  carrier  maintaining  a  switch  to  a 
certain  quarry  is  bound  to  receive  freight 
belonging  to  owners  of  a  neighboring  quar- 
ry to  and  from  reasonable  points  along  its 
lines  at  which  it  could  lawfully  ship  or  re- 
ceive it. — Bedford-Bowling  Green  Stone  Co. 
V.  Oman,   24  Ky.   L.   R.   2274,   73   S.  W.   1038. 

8.  It  may  determine  the  means  and  meth- 


ods of  transportation,  the  goods  It  will  car- 
ry, and  between  what  points  and  under 
what  circumstances  and  conditions  it  will 
receive  them — Harp  v.  Railroad  Co.,  118  Fed. 
169. 

9.  Refusal   to  accept   shipments   of   coal — 
Loraine    v.    Railroad   Co.,    205    Pa.    132. 

10.  Chicago  Union  Traction  Co.  v.  Chicago, 
199    111.    484. 

11.  Legislative  reduction  of  rates  charge- 
able on  local  business  is  unreasonable  and 
unjust  where  at  the  time,  under  the  exer- 
cise of  efficient  and  economical  management, 
the  earnings  from  local  business  within  the 
state  are  insufficient  to  pay  one  half  the 
proportion  of  the  interest  of  the  mortgage 
debt  on  the  lines  within  the  state  justly 
chargeable  thereon — Chicago,  M.  &  St  P 
R.    Co.   V.    Smith,    110    Fed.    473. 

12.  Wells-Fargo  Exp.  Co.  v.  Williams 
(Tex.    Civ.    App.)    71    S.   W.    314. 


§  2 


DISCRIMINATION. 


423 


liim  sold  to  a  person  at  another  point  within  the  state,  a  shipment  from  the 
original  destination  to  the  final  one  is  intra-state  business,  governed  by  the  rates 
of  the  state,  but  transfers  from  one  car  to  another,  and  re-billing,  do  not  cause 
the  shipment  to  lose  its  character  as  an  interstate  one,  if  there  is  a  definite  in- 
tention that  the  shipment  shall  be  from  a  point  without  to  a  point  within  a  state,^^ 
and  though  the  person  alleging  an  overcharge  acquired  title  from  the  original  shipper 
at  a  point  within  the  state  before  it  arrived  at  its  destination."  To  render  a  rail- 
road liable  for  failure  to  observe  a  domestic  regulation,  it  must  be  shown  to  have 
knowledge  that  the  shipment  is  domestic.^^ 

Statutory  prevention  of  discrimination. — A  provision  for  indictment  of  car- 
riers for  discrimination  in  rates,  if  on  investigation  the  railroad  commission  fails 
to  exonerate  them  from  the  operation  of  a  statute,  is  not  an  encroachment  on 
the  power  vested  in  the  railroad  commission  to  determine  to  what  extent  a  car- 
tier  may  be  relieved  from  an  inhibition  against  greater  charges  for  short  than  long 
hauls,^*  but  it  cannot  be  provided  that  indictments  for  unjust  discrimination 
may  be  made  only  on  recommendation  by  the  commission,  for  that  might  exempt 
the  carrier  from  the  constitutional  penalty.^'' 

A  proceeding  by  action  against  a  railroad  commission  under  the  Texas  law, 
to  declare  an  established  rate  to  be  unreasonable,  does  not  give  the  court  ad- 
visory power  to  pass  on  the  rules  and  regulations  of  the  commission,^*  but  the 
inquiry  is  not  limited  to  whether  the  rate  is  so  unreasonable  and  unjust  as  to 
amount  to  the  taking  of  property  without  due  process  of  law.^® 

Omission  from  a  new  statute  providing  for  the  fixing  of  rates  by  a  railroad 
commission,  of  provisions  for  the  prosecution  of  carriers  charging  unlawful  rates, 
does  not  effect  a  repeal  of  the  previous  statute,^"  and  where  statutes  relating  to  dis- 
crimination are  united  in  a  revision  and  the  penalties  provided  in  each  are  contin- 
ued, the  penalty  provided  in  one  cannot  be  imposed  in  a  prosecution  based  on  the 
violation  of  another.^^ 

What  constitutes  discrimination. — It  is  not  discrimination  to  refuse  to  fur- 
nish cars  for  shipment  in  one  direction  though  cars  are  furnished  to  be  shipped 
in  the  opposite  direction,'^  or  to  furnish  cars  which  may  be  advantageously  loaded 
when  others  are  refused.^^  Cars  must  be  furnished  in  the  order  in  which  re- 
quests therefor  are  received.^*  It  is  not  a  discrimination  to  refuse  to  construct 
spur  tracks,^^  or  to  refuse  to  deliver  stock  to  other  than  the  carrier's  yards,^°  ard. 


IS.  Gulf,  C.  &  S.  F.  R.  Co.  V.  state  (Tex. 
Civ.  App.)    73   S.  W.  429. 

14.  Gulf,  C.  &  S.  F.  R.  Co.  V.  Fort  Grain 
Co.    (Tex.   Civ.  App.)    72   S.   W.   419. 

15.  Evidence  held  insufficient — failure  to 
stop  cotton  at  first  compress — (Rev.  St.  1895, 
art.  4574,  §  1) — State  v.  Railroad  Co.  (Tex. 
Civ.    App.)    73    S.    W.    572. 

16.  Construing  Ky.  St.  §  820;  Const.  § 
218 — Illinois  Cent.  R.  Co.  v.  Com.,  23  Ky.  L. 
R.    1159,    64    S.    W.    975. 

17.  Commonwealth  v.  Railroad  Co.,  23 
Ky.   L.   R.   1382,   65   S.  W.  158. 

18.  Railroad  Commission  v.  "Weld  (Tex. 
Civ.  App.)    66  S.  W.  122. 

19.  Rev.  St.  1895,  arts.  4565,  4566 — Rail- 
road Commission  v.  Weld  &  Neville,  95  Tex. 
278,    73    S.   W.   529. 

20.  Construing  Act  Ky.  March  10,  1900, 
Gen.  St.  Ky.  1894,  §  819 — McChord  v.  Rail- 
road Cos.,  183  U.  S.  483.  46  U.  S.  Lawy.  Ed. 
289. 

21.  Construing  Rev.  St.  1889,  §§  2636,  2637, 
2663,    and    awarding    a   judgment    for    treble 


damages — McGrew    v.    Railway    Co.,    87    Mo. 
App.    250. 

22.  The  cars  furnished  ■were  for  local  and 
not  for  interstate  shipments  and  the  order 
applied  to  all  persons  alike — Harp  v.  Rail- 
way Co.,    118   Fed.   169. 

23.  It  is  not  an  unlawful  discrimination  ei- 
ther at  common  law  or  under  the  statute  to 
furnish  coal  cars  to  be  loaded  from  chutes 
at  a  time  when  cars  to  be  loaded  by  wagon 
in  station  yards  are  refused,  nor  is  it  un- 
reasonable at  a  time  when  the  supply  of 
cars  was  insufficient  and  the  tracks  on  which 
cars  to  be  loaded  by  wagons  would  have  to 
be  placed  were  in  constant  use — Harp  v. 
Railway  Co.,  118  Fed.  169. 

24.  Nichols  V.  Railroad  Co.,  24  Utah,  83, 
66  Pac.   768. 

25.  A  railroad  need  not  lay  a  track  to 
a  mine,  though  it  has  permitted  the  build- 
ing of  similar  tracks  to  other  mines — Harp 
V.   Railway  Co.,   118  Fed.   169. 

26.  The  facilities  provided  were  reasona- 
ble— Central  Stock  Yards  Co.  v.  Railroad 
Co.    (C.    C.   A.)    118    Fed.    113. 


424 


CARRIERS— IN  GENERAL. 


§   3 


in  the  absence  of  statute,  the  courts  cannot  compel  an  exchange  of  traffic  between 
connecting  railroads."  A  greater  sum  may  be  charged  for  the  carriage  of  a 
high  than  a  low  grade  of  coal.^^  A  level  rate  on  cotton  without  regard  to  density 
of  compression  is  not  unreasonable  and  unjust.-^  'Wliere  the  statute  prohibits  a 
greater  charge  for  a  shorter  than  for  a  longer  haul  over  the  same  line  in  the 
same  direction,  the  shorter  being  included  in  the  longer  distance,  it  is  not  a  dis- 
crimination for  connecting  carriers  to  charge  less  under  a  joint  traffic  agree- 
ment for  a  haul  from  a  point  on  one  road  to  a  point  on  the  other  than  the  first 
carrier  charges  from  the  initial  point  on  its  road  to  its  terminus  between  the 
points.^  Penalties  for  overcharges  cannot  be  recovered  for  the  inclusion  by  tht> 
carrier  of  a  switching  charge  exacted  of  it  by  another  road  which  delivers  the 
goods  to  it.'^ 

It  may  be  an  illegal  discrimination  to  furnish  a  newspaper  editor  an  annual 
pass  in  consideration  of  the  publication  of  a  time  table.^^ 

Penalties. — Where  a  penalty  is  provided  for  each  article  refused,  a  separate 
penalty  may  be  exacted  for  each  animal  on  refusal  to  transport  a  car  load  of 
cattle."  Where  a  statute  provides  a  penalty  for  a  refusal  of  freight  or  passengers, 
a  connecting  carrier  to  whom  freight  is  consigned  cannot  sue  for  the  penalty.^* 

Indictment  and  prosecution. — A  fine  provided  for  an  overcharge  in  freight 
rates  cannot  be  enforced  in  a  civil  action.^^  An  indictment  for  violation  of  the 
Kentucky  statute  against  discrimination  cannot  be  returned  until  the  railroad 
commission  has  refused  to  exonerate  the  carrier,  since  it  is  provided  by  statute  that 
it  shall  be  the  duty  of  the  commission  to  investigate  charges  against  the  carrier, 
and,  if  an  order  failing  to  exonerate  it  is  made,  to  furnish  the  grand  jury  a  copy 
of  the  order  that  it  may  be  indicted.'®  Under  the  same  law,  an  order  of  railroad 
commissioners  failing  to  exonerate  a  carrier  from  unlawful  discrimination  with 
regard  to  special  named  cases  cannot  be  made  the  basis  of  an  indictment  for  dis- 
crimination as  to  subsequent  shipments.^^  Where  the  statute  provides  that  freight 
of  the  same  class  must  be  hauled  for  all  persons  between  the  same  points  and 
on  the  same  conditions,  in  the  same  manner  and  for  the  same  charges,  an  indict- 
ment for  discrimination  must  allege  that  the  services  were  on  the  same  conditions. ^^ 

§  3.  Rights  and  relations  between  carrier  and  connecting  carrier,  draymen  or 
transfermen,  etc.'^ — Ovmership  of  connecting  property  is  not  a  prerequisite  to  the 
statutory  duty  of  one  connecting  or  crossing  railroad  to  afford  accommodations  to 
the  other  in  the  transportation  of  passengers  and  goods.^°     A  railroad  has  power 


27.  Such  power  Is  not  conferred  on  courts 
by  the  interstate  commerce  act — Central 
Stock  Yards  Co.  v.  Railroad  Co.  (C.  C.  A.) 
118    Fed.    113. 

28.  Construing  Const.  §  215 — Common- 
wealth V.  Railroad  Co.,  24  Ky.  L.  R.  509, 
68    S.    W.    1103. 

29.  Not  a  violation  of  Rev.  St.  1895,  art. 
4566,  supporting  an  action  against  the  rail- 
road commission — Railroad  Commission  v. 
"Weld    &    Neville.    95    Tex.    278,    73    S.   W.    529. 

30.  Ky.  St.  §  820 — Commonwealth  v.  Rail- 
road  Co.,    24   Ky.   L.   R.    1883,   72  S.  W.    361. 

31.  Code  1892,  §§  4287,  4288.  Defendant 
had  given  a  rate  for  transportation  over  its 
own  line  and  in  the  freight  bill  included  a 
switching  charge  which  it  had  to  pay  in 
order  to  obtain  possession  of  the  freight — 
Gilliland   v.   Railroad   Co.    (Miss.)    32   So.    916. 

32.  If  the  value  of  the  advertisement  is 
not  shown  to  equal  the  value  of  the  pass  and 
there  is  a  sale  of  transportation  on  credit 
and  not  payable  in  money.  Construing  Laws 
1891,  p.  277,  c.  320.  §  4 — McNeill  v.  Railroad 
Co.    (N.   C.)    44   S.   E.    .T4. 


33.  Carter  v.   Railroad   Co..    129   N.   C.    213. 

34.  2  Comp.  Laws  1897,  §  6235 — Crosby  v. 
Railroad  Co.  (Mich.)  9  Det.  Leg.  N.  310.  91  N. 
W.  124. 

35.  Laws  1893,  c.  24.  §  9 — State  v.  Railroad 
Co.    (Neb.)    93   N.  W.   222. 

36.  Ky.  St.  §  820— Illinois  Cent.  R.  Co.  v. 
Com.,   23  Ky.   L.   R.   1159,   64  S.  W.   975. 

37.  Const.  5  218;  Ky.  St.  §  820 — Louisville 
&  N.  R.  Co.  V.  Com.,  24  Ky.  L.  R.  1593.  1779, 
71   S.  W.   910. 

38.  Violation  of  Const.  §  215,  constru- 
ing Cr.  Code.  §  124.  as  to  certainty  of  in- 
dictment— Commonwealth  v.  Railroad  Co.,  24 
Ky.  L.  R.  1887,  72  S.  W.  758.  "On  different 
conditions"  held  bad — Commonwealth  v.  Rail- 
road Co.,  24  Ky.  L.  R.  1888.  72  S.  W.  361; 
Commonwealth  v.  Railroad  Co.,  24  Ky.  Law 
Rep.  1886.  72  S.  W.  360. 

39.  See  post,  §  26,  for  liability  of  carrier 
of  passengers  who  uses  the  premises  or  ve- 
hicles  or  transports  the  cars  of  another. 

40.  A  street  railroad,  vested  with  the 
right  of  eminent  domain  and  with  charter 
T^OTvor    to    acquire    real    estate,    is    subject    to 


§  5 


CARRIERS  OF  GOODS— CONTRACTS. 


425 


to  conrracc  wivh  other  railroads  for  carriage  beyond  its  lines,  provided  it  does 
not  fix  discriminatory  rates.  *^  Where  a  carrier  maintains  a  wharf  for  the  trans- 
fer of  goods  between  its  own  lines  and  vessels  of  other  carriers,  the  use  of  such 
wharf  and  its  appliances  must  be  allowed  to  all  on  equal  terms.*^  In  a  statutory 
proceeding  for  the  appointment  of  commissioners  to  make  an  award  as  to  the 
terms  on  which  crossing  and  connecting  railways  are  to  receive  the  goods  and  passen- 
gers of  each  other,  a  recognizance  for  costs  is  not  required  unless  provided  for  by 
the  statute.*^ 

A  railroad  may  prevent  the  solicitation  of  custom  within  its  stations  for 
carriage  and  baggage  lines  and  hotels,*^  or  the  congregating  of  hackmen  around 
the  doors  of  its  station,  to  solicit  business,  in  such  numbers  as  to  interfere  with 
ingress  and  egress,  though  it  has  allowed  one  firm  of  hackmen  to  enter  its  sta- 
tion to  solicit  trade.*"^ 

Part  2.  Carriage  of  goods.  §  4.  Delivery  to  carrier  and  inception  of  lia- 
hility^^ — A  carrier  may  refuse  to  accept  freight  improperly  prepared  for  ship- 
ment, or  may  prepare  it  itself.*^  It  is  not  a  conversion  for  a  carrier  without  notice 
to  accept  goods  from  other  than  the  true  owner.** 

§  5.  Contracts  for  carriage. — A  contract  of  carriage  is  governed  by  the 
law  of  the  place  of  its  inception.** 

A  carrier  undertaking  to  carry  out  a  contract  to  deliver  freight  at  a  certain 
point  cannot  absolve  itself  from  negligence  by  reason  of  the  insufficient  authority 
of  an  agent  to  make  the  contract.^"  The  station  agent  is  not  presumed  to  have  au- 
thority to  bind  his  company  for  loss  on  connecting  lines,  but  his  authority  may 
be  inferred  from  previous  course  of  dealing,'^  If  the  carrier  ratifies  a  contract 
by  a  local  agent  accepting,  instead  of  advance  payment  of  freight  required  by 
rule,  a  deposit  of  the  amount  at  the  point  of  destination,  it  must  perform  the 
contract.^^  The  agent  of  a  railroad  company  having  no  line  within  the  stat;,^ 
has  implied  authority  to  contract  for  the  safe  delivery  of  goods  beyond  the  line 
of  Ms  company,  and  to  contract  over  what  roads  the  freight  shall  be  transported.^^ 
A  contract  made  by  an  eastern  freight  agent  may  be  binding  on  the  receivers 
of  a  western  railroad."'    Where  the  receiving  carrier  agrees  to  carry  over  its  own 


V.    S.    c.    169,    §    3860— Rutland    R.    Co.    v.    St. 
Ry.   Co.,   73   Vt.    20. 

41.  Code,  §  2066 — Bras  V.  McConnell,  114 
Iowa,    401. 

42.  West  Coast  Naval  Stores  Co.  v.  Rail- 
road Co.  (C.  C.  A.)  121  Fed.  645;  Macon,  D. 
&  S.  R.  Co.  V.  Graham  &  Ward  (Ga.)  43 
S.  E.  1000.  Injunction  will  lie  against  a 
grant  of  the  exclusive  use  of  coal  unloading 
machinery  at  a  dock  to  one  shipper,  though 
the  machine  which  had  been  erected  and 
maintained  jointly  by  the  carrier  and  a 
coal  transfer  company  is  conveyed  to  the 
transfer  company — Toughlogheny  &  O.  Coal 
Co.  V.  Railway  Co.,  24  Ohio  Cir.  Ct.  R.  289. 

43.  V.  S.  §  3864— Rutland  R.  Co.  v.  St. 
Ry.    Co.,    73    Vt.    20. 

44.  Injunction  w^ill  lie  for  such  purpose — 
Pennsylvania   Co.   v.   Donovan,    116   Fed.    907. 

45.  The  injunction  should  not  go  further 
than  to  protect  complainant's  right  of  pri- 
vate property;  an  obstruction  to  the  use  of 
the  sidewalk  or  street  by  the  public  should 
be  left  to  be  dealt  with  by  the  municipality 
— Donovan  v.  Pennsylvania  Co.  (C.  C.  A.) 
120    Fed.    215. 

46.  Evidence  held  sufficient  for  the  jury 
in    an    action    for    damages    from    negligent 


failure    to    ship    goods. — Porter    v.    Railroad 
Co.    (N.    C.)    43    S.    E.    547. 

47.  Elgin  J.  &  E.  Ry.  Co.  v.  Bates  Mach. 
Co.,    98    111.   App.    311. 

48.  Robt.  C.  White  L.  S.  Commission  Co. 
V.    Railroad   Co.,    87   Mo.    App.    330. 

49.  A  contract  entered  into  in  Missouri 
between  a  resident  corporation  and  a  car- 
rier having  an  office  and  doing  business 
there  Is  a  Missouri  contract — Herf  &  Fre- 
richs  Chemical  Co.  v.  Lackawanna  Line  (Mo. 
App.)  73  S.  W.  346.  See,  also,  article  "Con- 
flict of  Laws." 

50.  Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Smith. 
132    Ala.    434. 

51.  Faulkner  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.    (Mo.    App.)    73    S.    W.    927. 

52.  Porter  v.  Railroad  Co.  (N.  C.)  43  S.  E. 
547. 

53.  Freemont,  B.  &  M.  V.  R.  Co.  v.  Rail- 
road Co.  (Neb.)  92  N.  W.  131;  New  York,  C. 
&   St.   L.   R.   Co.   V.    Railroad   Co.,   Id. 

54.  Such  freight  agent  has  apparent  au- 
thority to  contract  at  his  office  in  New  York, 
for  carriage  over  the  road  and  the  con- 
necting steamship  lines  across  the  Pacific, 
and  such  contract  is  binding  on  the  receiv- 
ers, if  the  shipper  has  no  notice  of  limita- 
tion on  the  agent's  authority,  and  does  not 


426 


CARRIERS  OF  GOODS. 


line  and  forward  according  to  the  usual  course  of  business  from  its  terminus,  it 
is  not  bound  by  statements  of  its  station  agent  as  to  the  rate  to  be  charged  by  the 
connecting  carrier."  A  statement  by  one  not  the  regular  agent  but  in  the  car- 
rier's office,  that  a  low  rate  will  be  given  in  a  few  days,  does  not  evidence  a 
contract  to  carry  at  such  rate.**'  A  railroad  station  agent  may  bind  the  com- 
pany to  furnish  cars."''  The  burden  of  showing  the  station  agent's  authority  is 
on  the  plaintiff." 

Failure  to  furnish  cars. — Where  the  carrier  fails  to  furnish  cars  at  an 
hour  specified,  but  furnishes  them  at  a  time  early  enough  to  bring  them  to  their 
destination  in  time  for  the  same  market,  the  shipper  cannot  refuse  to  ship  and 
recover  for  breach  of  contract."*  In  an  action  for  failure  to  furnish  cars  the  con- 
tract must  be  set  out  if  the  cause  of  action  is  apparently  one  for  breach.^"  It 
must  be  alleged  that  the  goods  concerning  which  the  action  is  brought  were  ten- 
dered or  received  by  an  authorized  agent  of  the  carrier  or  application  for  cars 
made  to  agent  authorized  to  furnish  cars.*'^  The  carrier  is  liable  for  breach  of 
agreement  to  furnish  cars  belonging  to  another  line,  and  inability  to  obtain  the 
precise  kind  of  cars  ordered  is  not  an  excuse,  if  it  was  understood  that  the  ship- 
per would  accept  any  variety  obtainable  where  the  others  could  not  be  secured.®^ 

The  carrier  is  liable  for  refusal  to  accept  perishable  goods  and  provide  suitable 
cars,  though  it  has  not  held  itself  out  as  furnishing  refrigerator  cars.  The  car- 
rier is  not  relieved  from  liability  by  failure  of  a  refrigerator  car  company  to  furnish 
cars,  or  by  the  fact  that  it  was  willing  to  haul  iced  cars  to  be  furnished  by  another 
company  under  contract  with  the  shipper,  or  that  there  were  more  goods  for  ship- 
ment than  enough  to  fill  the  cars  ordered.^^ 

§  6.  Bills  of  lading. — Issuance  of  the  bill  of  lading  is  not  necessary  to  fix 
the  liability  of  a  railroad  as  a  carrier.*'*  Where  a  bill  of  lading  is  issued  for 
accoi^iinodation  before  actual  delivery  of  the  goods,  the  carrier  is  not  bound  to  en- 
deavor to  get  possession  of  the  goods  if  the  owner  has  agreed  to  deliver  them  on 
board." 


know  that  the  railroad  does  not  own  the 
steamship  line,  and  the  receivers  do  not 
operate  it — Farmers'  Loan  &  Trust  Co.  v. 
Railroad    Co.    (C.    C.   A.)    120    Fed.    873. 

55.     McLagan    v.    Railway    Co.,    116    Iowa, 


183. 
56. 

(Tex 

67. 


Williams, 


■Wells-Fargo     Exp.     Co. 

Civ.    App.)    71    S.   W.    314. 

An    oral    agreement    to    such    effect    Is 

valid  unless  the  want  of  authority  of  the 
agent  Is  known  to  the  shipper — Gulf,  C.  & 
S.  F.  Ry.  Co.  V.  Irvine  &  Woods  (Tex.  Civ. 
App.)    73    S.    W.    540. 

McLagan    v.    Railway    Co.,    116    Iowa, 


."58. 
183. 

59. 
71    S 

60. 


(Mo.    App.) 


Currell    v.    Railroad    Co 

W.    113. 

Such  omission  Is  not  supplied  by  an 
allegation  In  the  answer  stating  a  contract 
to  furnish  cars  on  a  certain  date  in  time  for 
a  certain  market  and  a  replication  admit- 
ting such  contract,  as  pleaded,  and  the 
trial  could  not  proceed  on  the  theory  of  a 
contract  to  have  cars  ready  on  a  certain 
hour  and  not  a  contract  to  furnish  them 
in  time  for  a  certain  market. — Currell  v. 
Railroad    Co.    (Mo.    App.)    71    S.    W.    113. 

61.  Complaint  held  demurrable  which  al- 
leged that  plaintiff  placed  timber  for  ship- 
ment near  the  company's  tracks  at  a  station 


named  and  that  he  applied  to  a  freight  con- 
ductor and  the  company's  agents  at  other 
stations  for  a  car — St.  Louis,  I.  M.  &  S.  Ry. 
Co.    v.    Lee,    69   Ark.    584. 

62.  Nichols  V.  Railroad  Co.,  24  Utah,  83, 
66   Pac.   768. 

63.  An  agreement  to  furnish  refrigerator 
cars  at  particular  dates  need  not  be  shown 
to  establish  prima  facie  liability — Mathis  v. 
Railway  Co.    (S.   C.)    43  S.  E.    684. 

64.  Where  it  has  received  a  consignment 
for  transportation  and  Is  notified  of  its  des- 
tination, it  cannot  escape  liability  as  a  car- 
rier by  issuing  a  bill  of  lading  in  the  form 
of  a  track  or  warehouse  receipt  after  de- 
struction of  the  consignment — Cleveland,  C, 
C.  &  St.  L.  R.  Co.  V.  Wilson,  99  111.  App.   367. 

65.  An  unauthorized  issuance  by  an  agent 
of  bills  of  lading  for  goods  in  a  public  ware- 
house is  not  ratified  by  a  steamship  com- 
pany by  its  reception  on  board  of  goods 
purporting  to  be  those  described,  which  have 
been  fraudulently  substituted  for  the  actual 
goods  In  the  warehouse.  Acceptance  of 
goods  on  board  Is  a  ratification  only  from 
time  of  delivery,  and  the  company  is  not 
liable  while  the  goods  are  in  the  warehouse 
subject  to  the  orders  of  the  seller,  though 
a  bill  of  lading  has  been  issued  by  its  agent 
to  the  purchaser — Cunard  S.  S.  Co.  v.  Kelley 
(C.  C.  A.)    115  Fed.   678. 


§6 


BILLS   OF  LADING. 


427 


Conclusiveness  of  hill. — Statutes  making  bills  of  lading  conclusive,  where 
weights  are  stated  therein,  have  been  held  constitutional,®®  and  may  provide  for  at- 
torneys fees  in  cases  prosecuted  under  them.®^  Liability  is  for  goods  actually  re- 
ceived, though  a  different  quantity  is  described  in  the  bill.®^  A  receipt  for  goods  not 
delivered  to  the  carrier  may  be  explained  by  showing  that  it  was  not  intended  to 
change  the  actual  or  legal  custody  until  they  were  loaded.®* 

Interpretation. — Clauses  of  bills  of  lading  will  be  interpreted  in  their  rela- 
tion to  the  other  clauses  thereof,  and  according  to  obvious,  not  to  hidden,  meanings.'^'' 
A  phrase  in  a  receipt,  in  "apparent  good  order  except  as  noted,  contents  and  condi- 
tion of  contents  unknown,"  does  not  create  a  presumption  that  boxed  goods  are  re- 
ceived in  good  condition.''^ 

Indorsement  and  transfer  of  bill  of  lading  operates  as  a  constructive  delivery 
of  the  property,  though  not  where  it  has  been  taken  from  the  carrier's  possession 
under  legal  process,  with  knowledge  of  the  parties.'^^  Transfer  deprives  the  con- 
signor of  his  control,''^  and  the  carrier  becomes  an  agent  of  the  indorsee  if  he 
has  actual  possession.''*  The  receipt  and  negotiation  of  the  bill  does  not,  as 
between  the  shipper  and  the  carrier,  annul  a  prior  contract  under  which  the 
goods  were  shipped  and  upon  which  rights  and  obligations  have  accrued.''^  Trans- 
fer of  bill  of  lading,  with  draft  attached,  to  a  creditor,  confers  a  lien  superior  to 
the  lien  of  a  subsequent  attachment.^®  Assignment  after  delivery  of  the  goods 
to  the  consignee  does  not  pass  title,  where  the  bill  requires  that  it  shall  be  taken 
up  on  such  delivery,''^  but  bills  of  lading  attached  to  drafts,  deposited  with  a 
bank  to  secure  checks  drawn  for  the  payment  of  the  drafts,  in  the  hands  of 
the  bank  still  represent  the  goods  on  which  it  has  a  lien.'^^  A  bank  advancing 
money  for  the  purchase  of  goods  may,  through  acquiescence  in  a  uniform  course 
of  business,  be  prevented  from  retaining  possession  of  the  goods  and  bills  of  lading 
as  against  one  to  whom  the  purchasers  had  sold  them.'^*  Under  statutes  providing 
that  a  bill  of  lading  to  bearer  may  be  transferred  by  delivery,  the  carrier  is  liable  for 
delivery  to  the  consignee  where  it  has  given  the  shipper  a  bill  of  lading  naming  the 
shipper  and  consignee,  providing  for  delivery  of  the  goods  shipped  to  the  parties 
entitled  thereto,  and  such  bill  has  been  indorsed  and  delivered  to  a  third  person.^" 


66.  Laws  1893,  c.  100 — Missouri,  K.  &  T. 
Ry.  Co.  V.  Simonson,  64  Kan.  802,  68  Pac. 
653,    57    L.    R.    A.    765. 

67.  Missouri,  K.  &  T.  Ry.  Co.  v.  Simon- 
son,  64  Kan.  802,  68  Pac.  653,  57  L.  R.  A. 
765. 

68.  Southern  Ry.  Co.  v.  Allison,  115  Ga. 
635. 

69.  A  bill  of  lading'  in  its  character  as 
a  receipt  is  open  to  explanation — Cunard  S. 
S.   Co.   V.    Kelley    (C.    C.   A.)    115    Fed.    678. 

70.  Texas  &  P.  R.  Co.  v.  Reiss,  183  U.  S. 
621,  46  U.  S.  Lawy.  Ed.  358. 

71.  Mears  v.  Railroad  Co.  (Conn.)  52  Atl. 
610,    56    L.    R.    A.    884. 

72.  Storey  v.  Hershey,  19  Pa.  Super.  Ct. 
485. 

73.  Robt.  C.  White  L.  S.  Commission  Co. 
V.   Railroad  Co.,    87   Mo.   App.    330. 

74.  Storey  v.  Hershey,  19  Pa.  Super.  Ct. 
485.  A  carrier  is  not  relieved  from  its  duty 
to  forward  within  a  reasonable  time,  by 
reason  of  the  fact  that  a  party,  who  by  the 
terms  of  the  bill  of  lading  it  was  to  notify, 
verbally  instructed  it  not  to  deliver  the 
goods,  such  person  not  being  in  possession 
of  or  entitled  to  the  bill  of  lading  in  which 
the  owner  of  the  goods  was  named  as  both 


shipper    and    consignee — Florida    Cent.    &    P. 
R.  Co.  V.  Berry   (Ga.)    42  S.  E.   371. 

75.  Negotiation  is  not  a  ratification  or 
adoption  of  the  bill — Farmers'  Loan  &  Trust 
Co.  v.   Railroad  Co.    (C.  C.  A.)    120  Fed.   873. 

76.  Clary  v.  Tyson  (Mo.  App.)  71  S.  W. 
710. 

77.  Action  by  the  assignee  for  a  valuable 
consideration  to  recover  for  a  conversion — 
National  Commercial  Bank  v.  Lackawanna 
Transp.   Co.,    59  App.  DIv.    (N.   T.)    270. 

78.  First  Nat.  Bank  v.  Railway  Co.  (Tex. 
Civ.    App.)    72    S.    W.    1033. 

See  Hall  v.  Keller,  64  Kan.  211,  67  Pac. 
518,  91  Am.  St.  Rep.  209,  and  note  on  liabil- 
ity of  indorsee  for  breach  of  contract  for 
sale  of  goods  so  shipped. 

79.  Agreement  to  advance  money  to  cot- 
ton dealers  for  the  purchase  of  cotton,  tak- 
ing the  bills  of  lading  as  security  under 
a  course  of  business  whereby  the  dealers 
sold  the  cotton,  and,  after  the  sales  were 
made,  obtained  the  bills  from  the  bank  and 
deposited  the  amount  received  on  the  sales 
therein — First  Nat.  Bank  v.  Railway  Co. 
(Tex.  Civ.  App.)   72  S.  W.  1033. 

80.  1  Ball.  Ann.  Codes  &  Statutes,  §§  3598, 
3603,  3604,  and  3600 — First  Nat.  Bank  v. 
Railroad  Co.,  28  "Wash.  439,  68  Pac.  965. 


428 


CARRIERS  OF  GOODS. 


§    7 


§  7.  Delay  in  transportation  and  delivery. — The  carrier  is  not  liable  for  delay 
to  perishable  fruit  on  account  of  damage  to  the  track  by  unprecedented  rains."  If 
goods  are  accepted  for  shipment  with  knowledge  that  they  may  be  seized  as  contra- 
band of  war,  the  carrier  is  bound  to  use  all  reasonable  means  to  prevent  delay  from 
such  cause.^-  The  carrier  is  not  liable  for  the  value  of  goods  by  reason  of  a  mere 
omission  to  deliver  within  a  reasonable  time ;  the  measure  of  damages  is  the  differ- 
ence between  the  value  at  time  of  delivery  and  the  value  at  the  time  delivery  should 
have  been  made,^^  and  if  after  shipment  the  destination  is  changed,  the  measure  of 
damages  for  delay  at  the  original  destination  is  the  difference  in  value  at  the  substi- 
tuted destination."  Any  reasonable  expense  occasioned  by  an  unreasonable  delay, 
causing  goods  to  deteriorate  in  value,  may  be  recovered.*" 

§  8.  Loss  of  or  injury  to  goods. — Where  receipt  of  goods  is  admitted,  the  car- 
rier must  show  that  their  loss  was  not  the  result  of  his  negligence.*'  He  is 
not  liable  for  acts  done  at  the  direction  of  the  shipper,"  imless  from  an  unrea- 
sonable delay  in  transportation  it  becomes  the  carrier's  duty  to  disregard  instruc- 
tions.** 

Damage  hy  water  and  storms. — Cars  must  be  shown  to  be  free  from  leaks.*' 
Where  there  is  a  stipulation  against  loss  by  water,  the  fact  that  goods  were  delayed 
two  days  and  were  wet  when  delivered  does  not  show  that  they  were  wet  by  the  car- 
rier's neo-ligencc.®°  A  carrier  is  not  rendered  liable  for  loss  of  goods  by  an  unpre- 
cedented storm  by  the  mere  fact  that  he  has  failed  to  make  a  prompt  delivery  after 
arrival.  He  must,  by  ordinary  prudence,  have  been  able  to  protect  the  goods  after 
notice  of  the  impending  danger.®^  A  carrier  is  not  liable  as  for  conversion  of  wheat 
destroyed  by  an  unusual  storm  while  the  property  remains  in  its  possession,  through 
delav  in  carriage  and  delivery  at  the  point  of  destination,  but  is  liable  for  retention 
of  a  portion  of  wheat  recovered  after  the  storm  and  retained  for  an  unreasonable 

time.®- 

pire. — No  presumption  of  negligence  in  an  express  company  arises  from 
the  mere  fact  that  a  fire  occurs.®^     The  carrier  is  bound  to  guard  its  warehouse 


81.  A  train  containing  fruit  was  sent 
over  the  road  first  after  repair  of  the  sec- 
tion damaged,  though  a  light  work  train 
went  over  the  road  through  the  water  the 
day  before — Burnham  v.  Railway  Co.  (Miss.) 
32    So.    912. 

82.  After  lead  was  loaded  on  a  vessel, 
the  deputy  collector  refused  to  clear  the 
ship  on  the  ground  that  the  lead  was  con- 
traband, and  it  was  unloaded.  The  ruling 
was  reversed  on  the  following  day  before 
the  vessel  sailed,  but  the  lead  was  left,  and 
the  carrier.  In  the  absence  of  proof  that  it 
had  made  any  effort  to  see  that  the  vessel 
was  cleared,  was  held  liable  for  damages  re- 
sulting from  delay,  though  the  lead  was 
sent  on  by  a  later  vessel — Farmers'  Loan  & 
Trust    Co.    V.    Railroad    Co.    (C.    C.    A.)    120 

83.  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Hell- 
prin,    95    111.    App.    402. 

84.  San  Antonio  &  A.  P.  Ry.  Co.  v. 
Thompson   (Tex.  Civ.  App.)    66  S.  W.  792. 

85.  San  Antonio  &  A.  P.  Hy.  Co.  v.  Josey 
(Tex.    Civ.    App.)    71    S.    W.    606. 

The  consignor's  estimate  of  damage  from 
delay  may  be  taken,  though  it  is  greater 
than  that  of  the  consignee  and  the  consign- 
or states  that  the  consignee  has  a  greater 
knowledge  of  the  market — Southern  Ry.  Co. 
V    Deaklns,  107  Tenn.  522. 

Se.     Blum  V.  Monahan,  36  Misc.  (N.  Y.)  179. 


87.  Where  a  vent  In  a  car  of  vegetables 
is  so  left  open  In  February,  recovery  cannot 
be  had  for  severe  but  not  unprecedented 
cold  w^eather — Gillett  v.  Railway  Co.  (Tex. 
Civ.  App.)    68   S.   W.    61. 

88.  Negligence  of  a  consignor  in  instruct- 
ing not  to  Ice  perishable  goods — Texas  Cent. 
R.  Co.  v.  Dorsey  (Tex.  Civ.  App.)  70  S.  W. 
676. 

89.  Where  injury  was  received  In  an  un- 
precedented storm,  evidence  that  cars  ap- 
peared to  be  good,  close  and  dry  and  were 
in  good  condition  at  a  certain  point,  does 
not  show  lack  of  negligence  where  there 
was  no  evidence  of  the  effect  of  the  storm 
on  the  cars  as  breaking  them  or  causing 
leaks — Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Browne, 
27  Tex.   Civ.   App.   437,   66   S.   W.   341. 

90.  Dobson  V.  Railroad  Co.,  38  Misc.  (N. 
T.)    582. 

91.  In  this  case,  though  delivery  was 
possible  on  the  morning  of  the  storm,  the 
drayman  was  deterred  by  bad  weather  and 
after  the  storm  became  apparent  it  did  not 
appear  that  there  was  any  safer  place  than 
that  of  storage — International  &  G.  N.  R.  Co. 
V.  Bergman  (Tex.  Civ.  App.)  64  S.  W.  999. 

92.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Darby  (Tex. 
Civ.   App.)    67   S.    W.    129. 

93.  The  contract  was  on  condition  that 
the  carrier  should  not  be  liable  for  loss  or 
damage  by  flre  unless  the  goods  were  spe- 


§9 


DELIVERY    BY    CARRIER. 


42<* 


from  the  spread  of  fire  originating  on  adjoining  premises.'*  Where  an  express 
company  is  not  informed  that  a  package  contains  gold,  it  is  not  negligent  in 
failing  to  search  the  ruins  of  a  burned  car  for  its  recovery.^^ 

Effect  of  failure  to  disclose  value. — It  is  a  fraud,  releasing  the  carrier  from 
liability,  for  the  shipper  not  to  state  the  value  of  the  property  in  order  to  obtain 
a  lower  freight  charge,^'  though  there  is  no  fraud  or  concealment  of  value  where 
goods  are  shipped  under  a  proper  description,  without  inquiries  or  representa- 
tions.®^ Where  a  valuable  package  is  shipped  without  disclosure  under  a  stipu- 
lation for  limited  liability  at  a  less  charge  than  would  have  been  made  had  the 
value  been  disclosed,  recovery  in  excess  of  such  limitation  cannot  be  had  in  the 
absence  of  proof  of  an  affirmative  act  of  wrong  doing.'® 

Acceptance  by  consignee. — Signature  of  a  clear  receipt  by  one  employed  by 
the  consignee  to  take  away  the  goods  may  not  be  binding.'' 

§  9.  Delivery  by  carrier. — Goods  may  be  held  until  charges  are  paid.^  In 
order  that  seizure  under  a  legal  process  be  a  defense  to  nondelivery,  the  carrier 
must  notify  the  shipper  and  must  show  that  the  process  was  valid  on  its  face.^ 
Where  there  is  reasonable  doubt  as  to  who  is  entitled  to  possession  of  goods,  the 
carrier  may  investigate  before  immediate  shipment,^  and  the  amount  of  time 
reasonable  to  allow  a  carrier  to  determine  disputed  ownership  is  a  question  for 
the  jury.*  Wlien  goods  shipped  subject  to  acceptance  are  refused  by  the  con- 
signee and  the  consignor  refuses  to  order  their  return  after  notice,  he  cannot 
recover  of  the  carrier.^  The  carrier  is  liable  for  a  promise  of  prompt  delivery 
by  its  agent  preventing  the  consignee  from  removing  the  goods  promptly  on  ar- 
rival.® 

Notice  of  arrival. — Under  the  laws  of  Missouri,  where  a  consignment  arrives 
at  its  destination  on  time,  the  carrier  is  not  bound  to  notify  the  consignee  of 
arrival,  but  the  duty  may  be  imposed  by  established  usage  at  the  point  of  des- 
tination, and  is  not  removed  by  a  stipulation  in  the  contract  that  goods  are  to 
be  called  for  on  the  dav  of  +heir  arrival.'^ 


cially    injured. — Rowan    v.    WeUs,    Fargo    & 
Co..    114    N.    Y.    St.    Rep.    226. 

94.  Adequate  precaution  on  the  carrier's 
premises  may  not  relieve  it  from  liability 
for  a  fire  originating  on  adjoining  premises, 
and  so  violent  that  its  spread  to  the  carrier's 
building  could  not  be  prevented,  if  the  car- 
rier had  full  knowledge  of  the  specially 
hazardous  condition  of  the  adjoining  place. 
Where  wool  is  stored  in  a  shed  adjoining  a 
large  quantity  of  jute  particularly  exposed 
to  flre,  evidence  that  the  shed  in  which  the 
jute  w^as  stored  had  no  watchman,  and  little 
fire  protection,  and  that  defendant's  shed 
was  not  well  constructed  to  withstand  a 
fire  from  the  outside,  is  sufficient  to  war- 
rant the  submission  of  the  question  of  de- 
fendant's care  to  the  jury — Judd  v.  Steam- 
ship Co.   (C.  C.  A.)  117  Fed.  206. 

95.  Rowan  v.  Wells,  Fargo  &  Co.,  114  N. 
T.    St.    Rep.    226. 

96.  Pacific  Exp.  Co.  v.  Pitman  (Tex.  Civ. 
App.)    71    S.   W.    312. 

97.  Valuable  negatives  shipped  as  "photo 
goods" — Southern  Pac.  Co.  v.  D'Arcals,  27 
Tex.    Civ.    App.    57,    64    S.    W.    813. 

98.  Rowan  v.  Wells,  Fargo  &  Co.,  114  N. 
T.  St.   Rep.   226. 

99.  The  fact  that  a  local  express  com- 
pany's agent  employed  by  the  consignee  to 
procure  the  goods  for  him,  signs  a  clear  re- 


ceipt without  complaint,  does  not  prevent 
the  consignee  from  showing  that  the  goods 
were  wet — Mears  v.  Railroad  Co.  (Conn.)  52 
Atl.    610,   56   L.   R.   A.   884. 

1.  Held  error  to  refuse  an  Instruction 
that  If  goods  were  shipped  by  mistake  over 
another  line  by  plaintiff's  agent  and  they 
were  shipped  to  their  right  destination  part- 
ly over  defendant's  line,  defendant  could 
hold  them  for  charges  and  plaintiff  could  not 
recover,  it  being  shown  that  the  value  was 
less  than  the  freight  charges — Texas  &  P. 
Ry.  Co.  v.  Klepper  (Tex.  Civ.  App.)  69  S.  W. 
426. 

2,  3,  4.  Merz  v.  Railway  Co.,  86  Minn.  33, 
90  N.  W.  7. 

5.  Levy  v.   Weir,    38    Misc.    (N.    T.)    361. 

6.  Where  the  agent  with  knowledge  of 
congestion  in  the  freight  yards  promises  a 
delivery  preventing  the  consignee  from  re- 
moving the  goods — Southern  Ry.  Co.  v.  Dea- 
kins,    107    Tenn.    522,    64    S.    W.    477. 

7.  The  question  of  notice  becomes  one 
for  the  jury,  where  the  carrier  claims  that 
It  had  notified  the  consignee  by  mail,  and 
the  person  having  charge  of  the  consignee's 
mail  claimed  that  such  notice  was  never 
received  and  could  not  be  found  In  the  usual 
flies — Herf  &  Frerichs  Chemical  Co.  v.  Lack- 
awanna  Line    (Mo.   App.)    73    S.   W.    346. 


430 


CARRIERS   OF  GOODS. 


§   9 


Dxdy  to  require  production  of  hill  of  lading. — A  carrier  is  not  civilly  liable 
for  delivery  to  the  consignee  without  requiring  surrender  of  the  bill  of  lading, 
though  such  bill  is  not  marked  "Not  negotiable."®  There  is  no  common  law  lia- 
bility to  require  surrender  of  the  bill  of  lading  on  delivery  to  the  owner  or  con- 
signee, and  there  is  no  liability  to  a  third  person  to  whom  the  bill  is  afterward 
sold."  Commercial  usage  may  require  a  production  of  a  bill  of  lading  though  it 
name  the  consignee.^"  The  owner  of  a  cotton  press  receiving  cotton  in  transit 
for  compression  is  liable  to  the  holder  of  the  bills  of  lading  for  its  delivery  with- 
out their  production.^^ 

Place  of  delivery  or  destination. — Goods  shipped  to  a  port  for  water  carriage 
may  be  delivered  at  carrier's  wharf  though  outside  the  statutory  limits  of  the 
port.^* 

Wrongful  delivery. — The  liability  for  wrongful  delivery  remains  though  the 
carrier  has  become  a  warehouseman  or  an  involuntary  bailee.^'  An  express  com- 
pany is  not  excused  for  delivery  of  money  to  a  third  person  other  than  the  con- 
signee, by  the  fact  that  the  consignor  might,  by  the  exercise  of  due  care,  have 
ascertained  that  the  order  and  check  for  the  money  were  forgeries.^* 

Liability  of  carrier  as  for  conversion. — Wliere  an  express  company  delivers 
to  a  person  other  than  the  consignee,  it  is  liable  for  a  conversion.^^  If  a  rail- 
road company  delivers  a  consignment  to  another  than  the  consignee,  subject  to 
the  consignor's  order,  it  is  not  relieved  from  liability  for  the  technical  con- 
version by  the  fact  that  the  goods  are  destroyed  in  the  hands  of  a  third  person 
by  an  unprecedented  storm.^^  Where  a  demurrage  charge  may  be  collected  at 
the  expiration  of  a  certain  time,  and  at  the  expiration  of  a  greater  time  the  carrier 
has  the  right  to  remove  the  shipment  and  place  it  in  a  warehouse,  the  carrier  is 
guilty  of  a  conversion  in  case  it  remove  a  car  before  the  final  period,  though  the 
demurrage  charge  has  accrued.^^  There  is  no  conversion  if  the  carrier  delivers  the 
goods  at  their  destination,  and  the  remedy  of  the  shipper  is  an  action  for  negli- 
gence or  breach  of  contract.^®  In  the  absence  of  direction,  failure  of  the  carri-er 
to  return  goods  refused  by  the  consignee  on  account  of  delay,  is  not  a  conversion.^® 

Shipments  C.  0.  D. — Where  goods  shipped  C.  0.  D.  show  damage  by  water, 
the  agent  must  disclose  such  fact  before  exacting  payment  from  the  consignee,"" 
and  if  he  unjustifiably  suppresses  facts  as  to  their  condition,  the  carrier  is  not 
relieved  from  liability  by  the  fact  that  it  has  remitted  the  proceeds  to  the  con- 
signor before  receiving  notice  within  a  reasonable  time  that  the  goods  were  worth- 
less."    Notice  within  a  reasonable  time  should  be  given  of  the  consignee's  refusal 


8.  Pen.  Code,  §  629,  633.  Laws  1858,  c. 
326,  as  amended  by  Laws  1859.  c.  353 — Malrs 
V.  Railroad  Co..  73  App.  Dlv.  (N.  T.)   265. 

9.  Where  the  bill  does  not  provide  for 
delivery  to  the  order  of  the  consignee,  the 
carrier  is  not  liable  for  delivery  to  him 
without  requiring  presentation  of  the  bill, 
though  the  words  "or  order"  were  inserted  in 
the  bill  and  it  was  transferred  to  an  innocent 
purchaser — Malrs  v.  Railroad  Co.,  73  App. 
Div.    (N.   T.)    265. 

10.  First  Nat.  Bank  v.  Railroad  Co.,  28 
Wash.   439.   68   Pac.   965. 

11.  Southern  R.  Co.  v.  Bank  (C.  C.  A.) 
112   Fed.   861. 

12.  Delivery  at  a  carrier's  wharf  at  West- 
wego  is  permissible  on  a  contract  of  ship- 
ment from  Texas  to  the  port  of  New  Or- 
leans for  export,  though  such  point  is  a 
few  miles  above  across  the  river  from  and 
outside  the  municipal  or  port  limits  of  New 


Orleans — Marande  v.   Railroad  Co.,    184  U.   S. 
173,   46  U.   S.   Lawy.  Ed.   487. 

13.  Security  Trust  Co.  v.  Wells,  Fargo 
&  Co.  Exp.,  114  N.  T.  St.  Rep.  830. 

14.  Security  Trust  Co.  v.  Wells,  Fargo  & 
Co.   Exp.,   114  N.   Y.   St.   Rep.    830. 

15.  Security  Trust  Co.  v.  Wells,  Fargo  & 
Co.  Exp.,  114  N.  Y.  St.  Rep.  830. 

16.  Missouri,  K.  &  T.  Ry.  Co.  v.  Seley 
(Tex.    Civ.   App.)    72   S.   W.    89. 

17.  Darlington  v.  Railway  Co.  (Mo.  App.) 
72    S.    W.    122. 

18.  The  shipper  should  receive  the  goods. 
The  measure  of  damages  in  either  action 
is  the  same — Redmon  v.  Railroad  Co.,  90  Mo. 
App.    68. 

19.  Louisville,  N.  A.  &  C.  R.  Co.  v.  Heil- 
prin,    95    111.    App.    402. 

20.  21,  22,  23.  Books  evidencing  damage  by 
water,  were  delivered  Dec.  1st.  opened  on 
the    12th    or    13th,    and    notice    sent    the   ex- 


§  11 


CARRIER   AS   WAREHOUSEMAN— CONNECTING  CARRIERS. 


431 


to  accept/^  and  the  question  of  reasonableness  may  be  for  the  jury.^^  Before 
money  paid  for  damaged  goods  received  C.  0.  D.  can  be  recovered,  there  must  be 
an  offer  to  return  the  goods.'^* 

Refusal  hy  consignee. — Before  the  shipper  may  abandon  goods  to  the  carrier, 
it  must  show  that  the  goods  were  not  delivered  in  due  time  through  the  car- 
rier's negligence,  and  that  they  were  kept  in  an  unsafe  place  until  there  was  ma- 
terial deterioration. ^° 

§  10.  Carrier  as  warehouseman. — The  carrier  is  liable  as  a  warehouseman 
only,  where  goods  are  not  demanded  by  the  consignee  immediately  on  their  ar- 
rival,^' or  where  it  holds  them  after  refusal  of  the  consignee  to  accept  on  account 
of  special  damages.-^  The  fact  that  goods  are  shipped  to  the  shipper  himself  as 
the  consignee  does  not  alter  the  rule  as  to  the  termination  of  the  carrier's  liability 
as  a  carrier.^^  An  express  company,  after  the  consignee  has  refused  to  accept 
a  C.  0.  D.  parcel  and  the  shipper  has  directed  it  to  be  held  imtil  called  for,^*  or 
a  carrier  by  water,  where  goods  are  left  on  its  dock  at  the  direction  of  the  con- 
signee for  more  than  a  reasonable  time  after  notice  of  arrival,  is  liable  as  a 
warehouseman  only.^**  Where  facts  are  undisputed,  the  question  of  whether  a 
railroad  is  a  carrier  or  a  warehouseman  is  one  of  law.^^ 

Care  required. — An  express  company  whose  liability  has  become  that  of  a 
warehouseman  is  not  liable  for  the  theft  of  goods  in  the  night-time  from  a  small 
country  depot  in  which  they  are  stored.^^  Eecovery  cannot  be  had  for  goods 
stolen  from  the  carrier's  warehouse  without  its  fault,  after  the  consignee  has  al- 
lowed them  to  remain  therein  three  days.^' 

§  11.  Liability  of  carrier  or  connecting  carrier.'*' — In  the  absence  of  con- 
tract, the  carrier  is  not  at  common  law  liable  for  the  negligence  of  employees  of 
a  connecting  carrier,'"  though  one  company  owns  a  large  amount  of  stock  of  the 
other.^®  The  common  law  rule  has  been  declared  by  certain  statutes,'^  but  if  the 
contract  is  to  deliver  at  the  ultimate  destination,  there  is  a  liability.'^  Acceptance  of 
freight  for  transportation  to  a  point  beyond  the  terminus  creates  a  prima  facie  obli- 
gation to  deliver  at  the  point  of  destination.^'  If  several  carriers  make  a  joint  agree- 
ment for  through  transportation  and  division  of  compensation,  they  become  jointly 
and  severally  liable  for  any  loss  on  the  whole  line.*"  The  carrier  is  liable  for  an 
injury  on  a  connecting  line  where  a  through  car  is  sent  to  its  destination  without 


press  company  on  the  19th  after  the  pur- 
chase price  had  been  remitted  to  the  con- 
signor— Hardy  v.  American  Exp.  Co.,  182 
Mass.  328. 

24.  Where  a  consignment  of  books  is  so 
damaged  as  to  be  worth  but  five  or  six  dol- 
lars, it  must  nevertheless  be  tendered  the 
express  company  on  demand  for  the  price 
paid — Hardy  v.  American  Exp.  Co.,  182  Mass. 
328. 

25.  Herf  &  Frerichs  Chemical  Co.  v.  Lack- 
awanna Line   (Mo.  App.)    73  S.  W.  346. 

26.  St.  Louis  &  S.  F.  R.  Co.  v.  Akers  (Tex. 
Civ.  App.)   73  S.  W.  848. 

27.  (joods  burned  after  two  weeks  had 
elapsed — Frederick  v.  Railroad  Co.,  133  Ala. 
486. 

28.  The  carrier  Is  liable  as  warehouse- 
man only,  for  goods  destroyed  the  fourth 
day  after  notice  of  delivery,  though  the 
goods  are  shipped  to  the  shipper  as  con- 
signee and  he  does  not  arrive  at  the  place 
of  delivery  or  have  an  agent  there  until 
after  such  time — Denver  &  R.  G.  R.  Co.  v. 
Peterson     (Colo.)     69    Pac.    578. 

20.     Byrne  v.   Fargo,   36  Misc.    (N.  T.)    543. 


30.  Notice  and  direction  by  wife  of  the 
consignee  in  charge  of  his  place  of  busi- 
ness— King  V.  Steamboat  Co.,  36  Misc.  (N. 
Y.)    555. 

31.  Denver  &  R.  G.  R.  Co.  v.  Peterson 
(Colo.)    69   Pac.    578. 

32.  Byrne  v.  Fargo,   36  Misc.    (N.   Y.)    543. 

33.  King  V.  Steamboat  Co.,  36  Misc.  (N. 
Y.)    555. 

34.  See  post,  §  18,  carriage  of  live  stock. 

35.  Hartley  v.  Railroad  Co.,  115  Iowa.  612. 

36.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Lee  (Tex. 
Civ.   App.)    65   S.   W.   54. 

37.  Civ.  Code,  §  2298,  provides  that  a 
company  shall  be  liable  only  to  its  own 
terminus  and  until  delivery  to  the  connect- 
ing road — Felton  v.  Railway  Co.,  114  Ga.  609. 

38.  Jones  v.  Railroad  Co.,  89  Mo.  App. 
653.  Agreement  to  transfer  over  its  own 
and  connecting  lines — Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  Leatherwood  (Tex.  Civ.  App.)  69  S.  W. 
119. 

39.  Elgin,  J.  &  E.  Ry.  Co.  v.  Machine  Co. 
98  111.  App.  311. 

40.  Robt.  C.  "White  L.  S.  Commission  Co. 
v.  Railroad  Co.,  87  Mo.  App.  330. 


432 


CARRIERS   OF  GOODS. 


§   11 


unloading.**  Where  a  transportation  company  receives  its  car  from  an  initial 
carrier,  the  transportation  company  becomes  liable  for  mistake  in  the  directions 
given  the  railroad  next  taking  the  car.*'^ 

Exemption  and  limitation  of  liability. — An  initial  carrier  entering  into  a 
through  contract  may  limit  its  liability  for  transportation  to  the  terminus  of  its 
own  line;"  this,  though  statutes  exist  providing  that  no  contract  shall  exempt  a 
railroad  corporation  from  a  liability  which  would  have  existed  in  the  absence 
of  a  contract.**  Though  the  agent  making  a  contract  is  the  agent  of  other  con- 
necting roads,  a  contract  limiting  the  liability  of  a  connecting  road  to  injuries 
on  its  own  line  may  be  valid.*"  The  limitation  may  be  in  the  bill  of  lading.*' 
It  is  not  affected  by  the  fact  that  there  is  an  agreement  for  a  particular  kind  of 
service,  or  the  naming  of  a  destination  beyond  the  carrier's  line.*^  In  the  absence 
of  such  limitation,  it  is  liable  for  injuries  occurring  on  other  lines  beyond  its 
terminus.**  In  Nebraska  it  is  held  that  where  the  first  carrier  receives  the  entire 
charge  for  transportation,  it  cannot  free  itself  from  liability  for  safe  carriage 
over  every  part  of  the  route  by  express  contract,  the  agreement  being  regarded  as 
one  to  deliver  at  the  ultimate  destination.**  If  the  contract  provides  that  the 
agreement  is  between  the  shipper,  the  carrier  and  the  connecting  lines,  and  that 
no  line  shall  be  liable  for  the  negligence  of  another,  the  receiving  carrier  is  not 
liable  for  negligence  of  other  carriers.""  Where  a  carrier  makes  a  through  con- 
tract, it  cannot  exempt  itself  from  liability  for  the  negligence  of  connecting  car- 
riers."* Receipt  of  bills  of  lading  from  connecting  lines  containing  an  assumption 
of  liability  is  sufficient  to  show  that  the  shipper  does  not  regard  the  original  car- 
rier as  liahle  for  the  entire  distance."^^  Though  the  carrier  limit  its  liability  to 
its  own  line,  it  is  liable  for  the  negligence  of  its  agent  in  billing  freight  to  a 
wrong  destination  on  the  line  of  the  connecting  carrier. "^^  An  exemption  in  favor 
of  the  first  carrier  may  extend  to  a  connecting  carrier/*  though  not  specially 
named.'*'' 

Delivery  to  succeeding  carrier.^^ — The  duty  of  an  intermediate  carrier  is  to 
use  reasonable  diligence  to  secure  further  transportation  by  tender  to  a  con- 
necting line,  and  if  acceptance  is  refused,  to  notify  the  consignor  or  consignee 
without  unreasonable  delay,  and  store  or  care  for  the  goods  while  awaiting  for 


41.  The  contract  was  to  transport  "to 
destination  If  on  its  road  or  otherwise  to 
the  place  on  its  road  where  same  is  to  be 
delivered  to  any  connecting  carrier" — Elgin, 
J.   &  E.  Ry.  Co.  V.  Mach.  Co..   200  111.  636. 

42.  Rlciier  V.  Fargo,  77  App.  Div.  (N.  T.) 
550. 

43.  Fremont,  E.  &  M.  V.  R.  Co.  v.  Rail- 
road Co.  (Neb.)  92  N.  W.  131;  N.  Y..  C.  & 
St.  L.  R.  Co.  V.  Railroad  Co.,  Id.;  Hartley  v. 
Railroad  Co.,  115  Iowa,  612. 

44.  Code,  §  2074 — Hartley  v.  Railroad  Co., 
115    Iowa,    612. 

45.  The  connecting  road  was  not  sued  as 
a  partner — Askew  v.  Railway  Co.  (Tex.  Civ. 
App.)    73   S.   "W.    846. 

46.  Provision  that  the  carrier  shall  not 
be  liable  for  loss  not  proved  to  have  oc- 
curred on  its  own  road  or  after  the  prop- 
ertv  is  ready  to  deliver  to  the  next  carrier 
Dunbar  v.  Railway  Co..  62  S.  C.  414. 

47.  Taffe  V.  Railroad  Co.,  41  Or.  64,  67  Pac. 

1015. 

The  words,  "Fulton  Market,  New  York 
City,"  with  a  stipulation  "on  fastest  passen- 
ger train  service."  do  not  amount  to  an 
agreement  to  deliver  at  the  ultimate  destin- 


ation but  is  merely  an  undertaking  to  de- 
liver to  the  connecting  carrier — TafEe  v.  Or- 
egon R.  &  Nav.  Co.,  41  Or.  64,  68  Pac.  732. 

48.  Elgin,  J.  &  E.  Ry.  Co.  v.  Machine  Co.. 
98    111.   App.    311. 

49.  Bill  of  lading  provided  that  the  prop- 
erty was  to  be  delivered  in  good  order  to 
the  succeeding  carrier,  "it  being  expressly 
agreed  that  the  responsibility  of  this  com- 
pany shall  cease  at  this  company's  depot 
at  which  the  same  are  to  be  delivered"  to 
such  carrier — Chicago,  R.  I.  &  P.  Ry.  Co. 
Grain    Co.     (Neb.)     90    N.    "W.    205. 

50.  Louisville  &  N.  R.  Co.  v.  Chestnut  & 
Co.,    24    Ky.   L.    R.    1846.    72   S.   W.    351. 

51.  Redmon  v.  Railroad  Co.,  90  Mo.  App. 
68. 

52.  Hartley  v.  Railroad  Co.,  115  Iowa.  612. 

53.  Gulf,  C.  &  S.  F.  Rv.  Co.  v.  Harris 
(Tex.    Civ.    App.)    72    S.   ^V.    71. 

54.  Cincinnati,  H.  &  D.  R.  Co.  v.  Berdan 
22  Ohio  Circ.  R.  326. 

55.  Stipulation  that  no  carrier  should  be 
liable  for  damage  by  water  not  due  to  its 
own  negligence — Mears  v.  Railroad  Co. 
(Conn.)   52  Atl.   610,   56  L.  R.  A.  884. 

5C.     Delivery   of   livestock,    see   post,    5    17. 


§  11 


CONNECTING    CARRIERS. 


433 


instructions,  and  when  it  has  done  this,  it  becomes  liable  only  as  a  warehouse- 
man.^^ Property  unloaded  at  the  pier  of  a  connecting  carrier  before  notice  of 
arrival  to  the  succeeding  carrier  is  not  within  the  meaning  of  a  clause  limit- 
ing the  carrier  to  liability  as  a  warehouseman  only  while  the  property  awaits 
further  conveyance.^^  A  bill  of  lading  providing  for  a  termination  of  liability 
on  delivery  to  a  steamship  company  or  on  the  steamship  company's  pier  is  not 
complied  with  by  an  imloading  on  a  pier  in  the  absolute  control  and  possession  of 
a  railroad  company  and  notice  to  the  steamship  company/^  but  on  almost  iden- 
tical facts,  a  contrary  ruling  is  announced.^''  A  connecting  carrier  is  not  liable 
for  conversion  if,  instead  of  delivery  to  the  next  carrier,  it  stores  the  property 
subject  to  the  owner's  order.^^  Where  the  agreement  of  an  express  company  is 
to  forward  goods  to  its  agency  nearest  the  ultimate  destination  and  to  deliver 
it  to  another  express  company,  it  is  not  liable  for  a  loss  in  the  hands  of  a  trans- 
fer company  while  the  goods  were  in  transmission  to  the  succeeding  express  com- 
pany.'^ 

Loss  or  injury. — Where  freight  is  injured  while  in  carriage  by  several  car- 
riers, the  presumption  is  that  it  was  injured  on  the  last  line."^  It  may  be  a 
question  for  the  jury  whether  damage  occurred  on  the  line  of  the  initial  carrier.®* 
The  final  carrier  is  not  liable  where  the  loss  occurs  by  a  delay  on  the  part  of  the 
initial  carrier,"^  so,  where  a  carrier  delays  vegetables,  it  is  liable  for  the  natural 
consequences  even  be5^ond  its  own  line.*^®  After  limitation  of  liability  to  loss 
and  damage  occurring  on  the  initial  carrier's  road  and  to  causes  within  its  con- 
trol, it  is  not  liable  for  a  delay  occasioned  by  an  agreement  between  the  last  car- 
rier and  the  consignee,  resulting  in  a  storage  of  the  goods,  and  finally  an  absolute 
refusal  to  receive  them.*''^ 

Statutory  regulations. — A  statute  that  carriers  receiving  goods  for  through 
transportation  between  points  in  the  state  shall  be  regarded  as  connecting  car- 


57.  Where  a  railroad  company  receives 
cotton  for  delivery  to  a  steamship  company 
it  is  not  bound,  where  the  carrier  by  water 
refuses  to  accept  it  on  account  of  the  fact 
that  fire  has  broken  out  in  the  cotton,  to 
place  the  cotton  in  condition  for  shipment 
and  again  tender  it,  but  after  having-  noti- 
fied the  owner  of  refusal  is  justified  in  stor- 
ing it  to  wait  his  orders — Buston  v.  Railroad 
Co.  (C.  C.  A.)  119  Fed.  808;  aff.  Jt.  116  Fed. 
235,  but  disapproving  opinion  announced  on 
this  point  that  the  railroad  should  place  th5 
cotton  in  fit  condition  and  renew  the  tender. 

58.  Texas  &  P.  R.  Co.  v.  Reiss,  183  U.  S. 
621,   46   U.   S.   Lawy.   Ed.    358. 

59.  It  is  held  that  though  the  pier  was 
the  place  agreed  on  between  the  railroad 
company  and  steamship  company  for  deliv- 
ery of  cotton,  it  was  not  sufficient  if  the 
railroad  company  had  full  control,  and  un- 
der certain  contingencies  could  send  the 
cotton  by  another  steamer,  and  the  steam- 
ship company  could  not  take  it  until  a 
steamer  was  sent  to  the  pier  for  such  pur- 
pose— Texas  &  P.  R.  Co.  v.  Callender,  183 
U.   S.    63,    46   U.   S.   Lawy.   Ed.    362. 

60.  Washburn,  Crosby  Co.  v.  Railroad 
Co.,  180  Mass.  252.  The  railroad  company  in 
this  case  gave  the  steamship  company  no- 
tice by  letter  which  was  acquiesced  in,  that 
unloading  at  the  pier  constituted  delivery 
by  the  railroad  company,  and  it  afterward 
assumed   no   liability   therefor. 

61.  Buston  V.  Railroad  Co.,  116  Fed.  235. 

62.  The    contract    contained    a    provision 

Curr.  Law — 28. 


that  the  company  to  which  the  goods  were 
delivered  by  the  initial  carrier  should  be 
regarded  as  the  agent  of  the  owner  and  lia- 
ble for  subsequent  damages — Mills  v.  Weir, 
115    N.    Y.    St.    Rep.    801. 

63.  Cote  V.  Railroad  Co.,  182  Mass.  290. 
Presumption  arises  from  receipt  in  good  con- 
dition by  an  initial  carrier  and  delivery  In 
a  damaged  condition  by  a  terminal  carrier — 
Missouri,  K.  &  T.  Ry.  Co.  v.  Mazie  (Tex. 
Civ.    App.)    68    S.    W.    56. 

64.  A  car  of  fruit  not  Iced  remained  for 
several  days  during  hot  weather  in  the  pos- 
session of  the  Initial  carrier  and  was  not 
opened  until  arrival  at  its  destination — Mis- 
souri, K.  &  T.  Ry.  Co.  V.  Mazie  (Tex.  Civ. 
App.)   68  S.  W.  56. 

65.  As  where  goods  packed  to  remain 
in  good  condition  from  2^/^  to  314  days,  were 
in  the  hands  of  the  initial  carrier  about  2% 
days,  being  carried  about  50  miles  and  de- 
fendant could  not  carry  them  the  remainder 
of  the  journey  in  less  than  from  2  to  3  days 
— Farmers'  Nursery  Co.  v.  Cowan,  21  Pa. 
Super.  Ct.  192. 

66.  San  Antonio  &  A.  P.  Ry.  Co.  v. 
Thompson  (Tex.  Civ.  App.)  66  S.  W.  792.  A 
delivering  carrier  is  not  liable  for  damage  to 
fruit  resulting  from  decay  commenced  ow- 
ing to  its  inherent  nature  in  the  initial 
carrier's  possession  and  which  could  not  be 
stopped — Missouri,  K.  &  T.  Ry.  Co.  v.  Mazie 
(Tex.   Civ.  App.)    68   S.  W.   56. 

67.  Harris  v.  Railroad  Co.,  36  Misc.  (N.  Y.) 
181. 


434 


CARRIERS   OF  GOODS. 


§   12 


riers  and  agents  for  each  other  does  not  apply  to  an  interstate  shipment.*®  Statu- 
tory provisions  requiring  any  member  of  a  line  of  connecting  carriers  to  obtain 
and  furnish  information  as  to  the  place  of  loss  of  freight  and  the  manner  there- 
of, together  with  the  persons  by  whom  such  facts  may  be  established,  are  not 
unreasonable,  and  are  not  unconstitutional  in  that  they  compel  by  penalty  the 
production  of  information  which  the  company  is  entitled  to  withhold.^^  The 
validity  of  the  act  or  the  legal  siifficiency  of  the  application  for  information  cannot 
be  tested  by  a  motion  for  non-suit,  nor  can  failure  of  the  evidence  to  show  that 
a  carrier  has  failed  to  trace  freight  as  requested,  and  that  it  showed  the  damages 
were  the  result  of  plaintiff's  negligence,  be  so  urged.'^°  The  shipper,  though  not 
the  owner  of  the  goods,  may  bring  an  action.''^  It  cannot  be  shown  that  defendant 
delivered  the  freight  to  a  succeeding  carrier  in  good  order  if  by  its  terms  the  act 
expressly  applies,  though  by  contract  or  law  the  responsibility  of  a  carrier  shall 
cease  on  such  delivery/*  A  petition  will  not  be  regarded  as  stating  a  cause  of 
action  under  a  statutory  provision  authorizing  action  against  the  last  of  several 
connecting  carriers,  by  reason  of  the  fact  that  it  alleged  that  defendants  re- 
ceived goods  in  good  order  at  a  station  on  its  line  and  transported  them  to  their 
destination.'^' 

§  12.  Limitation  of  liability.''* — A  carrier  may  limit  his  common  law  lia- 
bility by  a  just  and  reasonable  contract  made  as  a  basis  merely  for  his  charges 
and  responsibility.'^'  He  may  exempt  himself  from  liability  for  loss  from  speci- 
fied causes  other  than  his  own  negligence,^®  though  he  cannot  avoid  the  latter 
liability.'^''     Carriers  may  contract  against  their  liability  as  mere  bailees.'^^ 

Validity  and  effect  of  particular  limitations. — The  carrier  may  exempt  itself 
from  liability  for  damage  by  wetting  not  due  to  its  negligence.''*  Though  the 
carrier  cannot  stipulate  against  its  own  negligence,  it  may,  for  a  consideration, 
contract  for  notice  of  damage  within  a  reasonable  time,®"  but  the  time  for  notice 
will  not  expire  while  facts  remain  undiscovered.®^  Where  a  bill  of  lading  con- 
tains a  clause  "subject  to  delay,"  the  carrier  is  not  liable  for  delay  resulting  from 
the  detention  of  the  goods  as  contraband  of  war.®^     An  express  company's  receipt. 


68.  Texas  &  N.  O.  R.  Co.  v.  Berry  (Tex. 
Civ.    App.)     71    S.    W.    326. 

69.  Civ.  Code  Ga.  §§  2317.  2318 — Central 
of  Georgia  Ry.  Co.  v.  Murphey  (Ga.)  43  S. 
E.    265. 

70.  Savannah,  F.  &  W.  Ry.  Co.  v.  Elder 
(Ga.)    43   S.   E.   379. 

71.  Civ.  Code,  §§  2317.  2318 — Central  of 
Georgia  Ry.  Co.  v.  Murphey  (Ga.)  43  S.  E. 
265. 

72.  Civ.  Code,  §§  2317,  2318 — Savannah,  F. 
&  W.   Ry.  Co.  V.  Elder    (Ga.)    43   S.   E.    379. 

73.  Civ.  Code,  §  2298 — Philadelphia  &  R. 
Ry.  Co.  V.  Venable  (Ga.)  43  S.  B.  407. 

74.  See  post,  §  19,  contracts  for  carriage 
of  livestock.  L.  1883,  c.  124,  §  13,  providing 
that  railroad  companies  cannot,  except  as 
provided  by  regulation  of  the  board  of  rail- 
road commissioners,  limit  their  common  law 
liability,  became  Inoperative  and  void  by 
reason  of  L.  1S98,  c.  29 — Missouri  Pac.  Ry. 
Co.  V.  Park  (Kan.  Sup.)  71  Pac.  586. 

75.  O'Malley  v.  Railway  Co.,  86  Minn. 
380.  '  By  contract  based  on  special  freight 
rate  or  other  valuable  consideration — Ullman 
V  Railway  Co.,  112  Wis.  168.  A  limitation 
oif  liability  based  on  the  rate  of  freight  paid 
may  be  binding  on  shippers  with  notice — 
Klair  v.  Steamboat  Co.  (Del.  Super.)  54  Atl. 
694. 


76.  Morse  v.  Railway  Co.,  97  Me.  77;  Louis- 
ville &  N.  R.  Co.  V.  Landers.  135  Ala.  504. 

77.  Cincinnati.  H.  &  D.  R.  Co.  v.  Berdan. 
22  Ohio  Circ.  R.  326;  Morse  v.  Railway  Co..  97 
Me.  77;  Fasy  v.  Navigation  Co.,  77  App.  Div. 
(N.   Y.)    469. 

78.  Chicago,  St.  P.,  M.  &  O.  R.  Co.  v. 
Schuldt    (Neb.)    92    N.    W.    162. 

79.  A  receipt  providing  that  no  carrier 
or  party  in  possession  shall  be  liable  for  dam- 
ages from  wetting,  does  not  relieve  from 
damages  due  to  carriers'  own  negligence — 
Mears  v.  Railroad  Co.  (Conn.)  52  Atl.  610. 
56    L.    R.    A.    884. 

80.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Mor- 
ris,  65  Kan.   532,   70  Pac.   651. 

81.  A  provision  that  claims  must  be  pre- 
sented within  90  days  does  not  relieve  an 
express  company  from  liability  for  wrongful 
delivery  where  the  claim  is  presented  as 
soon  as  a  fraud  is  discovered  though  more 
than  two  years  after  delivery — Security 
Trust  Co.  V.  Wells,  Fargo  &  Co.  Exp.,  81 
App.    Div.    (N.    Y.)    426. 

82.  Having  a  traffic  agreement  with  a 
steamship  company  a  railroad  accepted  lead 
for  transportation  to  Japan  and  forwarded 
it  seasonably  to  a  steamship  bound  therefor, 
clearance  of  which  was  refused  as  long  as 
the  lead  was  on  board,  China  and  Japan  be- 


§  12 


LIMITATION    OF    LIABILITY. 


435 


making  it  liable  as  a  forwarder  only,  does  not  relieve  it  from  liability  for  a 
wrongful  delivery.®^  Evidence  and  findings  as  to  the  construction  of  contracts 
are  to  be  construed  as  in  other  cases,  though  the  contracts  themselves  are  to  be 
strictly  construed  against  the  carrier.**  A  specific  exception  of  a  certain  kind  of 
property,  from  clauses  limiting  liability,  controls. ^^ 

Limitation  of  amount. — A  carrier  cannot  limit  its  liability  to  an  arbitrary 
sum,  but  a  fair  agreement,  liquidating  the  loss  or  damage  in  advance  on  an  agreed 
actual  or  maximum  value  basis,  is  not  contrary  to  public  policy,  though  the  loss 
be  attributable  to  the  carrier's  negligence.*®  A  limitation  of  liability  to  value  at 
place  of  shipment  is  invalid.*^  A  limitation  of  the  extent  of  liability  for  loss 
does  not  cover  liability  for  negligence  in  delivering  after  notice  to  stop  in  transit/ ■" 
nor  does  it  relieve  the  carrier  from  liability  to  the  extent  of  value  of  the  goods, 
where  they  are  entirely  lost  by  him,  there  being  no  stipulation  relieving  the  carrier 
from  his  own  negligence.**  A  limitation  of  liability  as  carrier  does  not  operate  as 
limitation  of  liability  as  a  bailee  for  hire,  and  the  carrier  may  be,  as  such,  liab]<' 
to  the  full  value  of  the  goods.^" 

Necessity  and  sufficiency  of  agreement  between  carrier  and  shipper. — The 
limitation  may  be  in  a  shipping  receipt.®*  Acceptance  of  a  receipt  by  the  shipper 
containing  the  clause,  "subject  to  the  terms  and  conditions  of  the  railroad  com- 
pany's bill  of  lading,"  renders  the  limitations  therein  a  part  of  the  contract.^- 
Mere  acceptance  of  a  bill  of  lading  containing  restrictions  of  the  common-law  lia- 
bility of  the  carrier,  without  notice  thereof,  does  not  render  the  restrictions  bind- 
ing on  the  consignor,^ ^  otherwise  where  there  is  knowledge  of  and  no  objection  to 
the  terms.®*  It  is  held  that  in  the  case  of  an  express  company,  acceptance  of  a 
receipt  containing  a  limitation  of  liability  makes  the  contract  binding  on  both 
parties."^     The  shipper  need  not  sign  or  agree  to  the  terms  of  the  bill  in  writing.'"' 

Evidence  to  sJiow  assent.^'' — The  contract  is  not  conclusive  as  to  the  fairness 
under  which  it  was  entered  into."*     The  burden  of  showing  assent  to  the  terms 


ing    at    war — Farmers    Loan    &    Trust    Co.    v. 
Railroad  Co.,  112  Fed.   829. 

83.  Security  Trust  Co.  v.  Wells,  Fargo  & 
Co.    Exp.,    81   App.    Div.    (N.    Y.)    426. 

84.  Adams  Exp.  Co.  V.  Carnahan,  29  Ind. 
App.    606. 

85.  Where  a  clause  modifies  the  common 
law  liability  of  the  carrier  as  to  property 
in  its  possession  ready  for  delivery  to  the 
next  carrier  or  awaiting  further  convey- 
ance, and  another  clause  provides  that  cot- 
ton is  excepted  from  any  clause  therein  on 
the  subject  of  fire,  the  carrier  shall  be  lia- 
ble as  at  common  law  for  loss  or  damage 
of  cotton  by  fire — Texas  &  P.  Ry.  Co.  v. 
Callender,  183  U.  S.  632,  46  U.  S.  Lawy.  Ed. 
362. 

86.  Contract  limiting  amount  of  liability 
for  "accident"  construed  to  Include  loss  or 
injury  from  negligence — Ullman  v.  Railway 
Co.,  112  Wis.  168;  Adams  Exp.  Co.  v.  Carna- 
han,   29    Ind.    App.    606. 

87.  Though  concerning  an  interstate  ship- 
ment— Southern  Pac.  Co.  v.  D'Arcais,  27  Tex. 
Civ.    App.    57. 

88.  Rosenthal  v.  Weir,  170  N.  T.  148. 

89.  Blum  V.  Monahan,  36  Misc.  (N.  T.) 
179. 

90.  Bermel  v.  Railroad  Co.,  62  App.  Div. 
(N.  Y.)  389. 

91.  As  where  entered  Into  In  considera- 
tion   of   a   reduced    rate    of    shipment — Mears 


V.    Railroad    Co.    (Conn.)    52    Atl.    610,    56    I>. 
R.   A.   884. 

92.  Clause  exempting  the  carrier  from 
liability  for  loss  or  damage  by  causes  be- 
yond its  control,  or  by  floods  or  fire  not 
due  to  its  own  negligence,  though  the  ship- 
per was  not  aware  that  such  provision  was 
contained  therein — Cincinnati,  H.  &  D.  R. 
Co.  V.  Berdan,  22  Ohio  Circ.  R.  326. 

93.  Elgin,  J.  &  B.  Ry.  Co.  v.  Machine  Co.. 
98  111.   App.    311. 

94.  Exemption  from  liability  for  fire — Cau 
v.  Railway  Co.  (C.  C.  A.)  113  Fed.  91;  Char- 
nock  V.  Same,  Id.  92.  Acceptance  without 
objection  of  a  bill  of  lading  stating  the 
value  or  maximum  value  of  property  re- 
ceived for  shipment,  whether  it  does  or 
does  not  state  such  value  to  be  declared  by 
the  shipper,  shows  an  assent  to  the  terms 
thereof  as  regards  value — Ullman  v.  Railway 
Co.,  112  Wis.   168. 

95.  Adams  Exp.  Co.  v.  Carnahan,  29  Ind. 
App.  606.  Though  the  shipper  did  not  read 
it— Mills  V.   Weir,   115  N.  Y.   St.  Rep.   801. 

96.  Cincinnati,  H.  &  D.  R.  Co.  v.  Berdan, 
22  Ohio  Circ.  R.  326. 

97.  It  is  sufficient  to  show  that  on  in- 
formation that  a  rate  would  be  a  certain 
amount  if  the  value  was  not  more  than  a 
sum  fixed,  the  shipper  authorized  the  agent 
to  fix  the  value  at  a  greater  sum  for  a 
greater  rate — Adams  Exp.  Co.  v.  Carnahan. 
29   Ind.   App.    606.     Proof  held   insufficient   to 


436 


CARRIERS   OF  GOODS. 


13 


of  i^e  bill  of  lading  is  on  the  carrier.^^  It  will  be  presumed  that  a  freight  rate 
is  based  on  an  agreed  valuation  where  there  is  no  evidence  to  the  contrary.^  If 
the  contract  limits  liability  to  a  certain  sum  in  case  a  greater  value  is  not  stated^ 
a  statement  of  a  greater  value  indicates  an  intention  to  limit  the  liability  to  the 
tmount  stated.^ 

Waiver  of  exemption. — If  the  consignor  of  freight  insures  it  in  favor  of  the 
Barrier,  such  act  is  a  sufficient  consideration  for  a  promise  by  the  carrier  not  to 
insist  on  the  exemption  in  a  bill  of  lading  from  damage  by  fire.' 

§  13.  Remedies  and  procedure.*'  Persons  who  may  sue. — Action  for  non- 
delivery may  be  brought  by  the  consignor,  where  there  is  evidence  that  the  con- 
signee is  not  the  owner,  as  where  goods  are  shipped  subject  to  inspection/  or  are 
consigned  for  sale  on  commission.®  Evidence  sufficient  to  establish  plaintiff's  title 
as  against  the  seller  of  goods  is  sufficient  as  against  a  carrier.'^ 

The  right  of  action  to  recover  for  a  loss  by  fire  is  not  affected  by  a  conditional 
payment  of  insurance  on  account  of  the  loss.' 

Form  of  action. — Eeplevin  will  not  lie  for  mere  delay  if  there  is  no  demand  for 
eturn  of  the  goods.^ 

Venue. — By  statute,  actions  for  loss  or  damage  in  the  hands  of  connecting 
carriers  may  be  brought  against  one  or  all  of  them  in  any  county  in  which  either 
of  them  extends  or  is  operated,^"  and  a  carrier  may  be  sued  in  the  county  in 
which  goods  are  shipped,  though  its  line  does  not  run  through  such  county,  anci 
the  receiving  carrier  is  not  joined.^^ 

Pleading. — ^\'liere  forms  of  action  are  abolished,  it  is  sufficient  in  an  action 
to  recover  the  value  of  goods  represented  by  bills  of  lading  to  allege  facts  raising 
a  duty  in  defendant  to  properly  deliver  the  goods  represented,  and  show  a  breach 
of  such  duty  by  delivery  to  a  third  person.^^  A  statement  in  an  action  before  n 
justice  is  insufficient  if  in  one  portion  it  seeks  a  recovery  as  for  a  conversion,  and 
does  not  elsewhere  state  whether  the  action  is  based  on  contract  or  tort,  or  the 
amount  of  damages  sustained.^'  A  verbal  agreement  of  shipment  cannot  be  de- 
clared on  subject  to  the  terms  and  conditions  of  a  written  receipt,  providing  for 
delivery  to  another  consignee.^*  An  averment  that  the  plaintiff  consignee  pur- 
chased the  goods  from  the  consignor  and  was  the  owner  at  the  time  of  damage  is 
a  sufficient  allegation  of  ownership.^'  An  allegation  that  the  sinking  of  a  bridge- 
causing  the  loss  of  goods  was  caused  by  the  negligence  of  defendant,  its  officer? 
and  employes,  is  a  sufficiently  definite  averment  of  negligence.^®  A  complaint  in- 
sufficient which  alleges  the  difference  between  the  value  of  the  goods  as  delivered 


show  a  custom  nmongr  water  carriers  to  stip- 
ulate against  liability  for  loss  by  fire — Rob- 
inson V.  Steamship  Co.,  75  App.  Div.  (N.  Y.) 
431. 

98.  Limitation  of  liability  purporting  to 
be  based  on  the  charges  fixed — O'Malley  v. 
Railway    Co.,    86    Minn.    380. 

99.  Elgin,  J.  &  E.  R.  Co.  v.  Machine  Co., 
98    111.    App.    311. 

1.  Goods  accepted  under  contract  limiting 
liability     to     an     agreed     valuation. — Adams 

Exp.  Co.  V.  Carnahan,  29  Ind.  App.  606. 

2.  Adams  Exp.  Co.  v.  Carnahan,  29  Ind. 
App.    606. 

3.  Texas  &  P.  Ry.  Co.  v.  Cau  (C.  C.  A.) 
120   Fed.    15, 

4.  See  post,  §  20.  actions  against  carriers 
of  live  stock.  Questions  of  damages  will  be 
treated   in   the   article    "Damages." 

5.  Levy  v.  Wier.   38  Misc.    (X.  T.)    361. 

6.  Failure  to  deliver  promptly — Southern 
R.  Co.  V.  Deakins,  107  Tenn.  522. 


7.  Union  Feed  Co.  v.  Clipper  Line  (Wash.> 
71    Pac.    552. 

8.  Judd    V.    Steamship    Co.    (C.    C.    A.)    117 
Fed.    206. 

9.  Wabash   R.   Co.   v.   House,    101   111.   Apn. 
397. 

10.  Gen.    Laws    1S99,   p.    214 — Texas    &    P. 
Ry.  Co.  V.  Lynch  (Tex.  Civ.  App.)  73  S.  W.  65. 

11.  Acts    26th    Leg.,    p.    214 — Texas    &    P. 
Ry.   Co.  v.  Middleton,   27   Tex.   Civ.   App.    481. 

12.  Southern    Ry.    Co.    v.    Bank    (C.   C.    A.> 
112    Fed.    861. 

13.  Redmon  v.   Railroad   Co.,   90  Mo.  App- 
68. 

14.  Thomas  v.  Railroad  Co.   (Del.)   3  Pen- 
newill,  81. 

15.  Texas    Cent.    R.    Co.    v.    Dorsey    (Tex. 
Civ.   App.)    70   S.   W.   575. 

IG.     Marsdeii    Co.    v.    Bullitt,    24    Ky.   L,.   R 
1697,   72  S.   W.  32. 


§  13 


REMEDIES  AND  PROCEDURE. 


437 


and  as  they  should  have  been  delivered.^^  Where  a  statute  provides  that  in  cer- 
tain cities  and  towns  notice  of  arrival  nrnst  be  given  to  terminate  the  liability  as 
carrier,  incorporation  need  not  be  pleaded  if  the  statute  makes  no  distinction  be- 
tween incorporated  and  unincorporated  cities.^*  In  action  against  the  consignor 
and  the  carrier  where  the  consignee's  title  is  in  issue,  a  refusal  of  the  consignor 
to  pay  a  claim  for  damage,  stating  that  it  must  be  collected  from  the  carrier,  is 
proper  under  the  general  allegation  of  ownership  and  may  be  presented  in  a  sup- 
plemental pleading.^'  A  replication  to  a  plea  setting  up  a  limitation  against  liability 
for  loss  by  fire  is  not  good  on  demurrer,  if  it  merely  sets  up  a  statutory  provision 
requiring  notice  to  the  consignee  to  enable  a  carrier  to  reduce  its  liability  to  that 
of  a  warehouseman  by  storage  of  the  goods.^" 

Conformity  of  pleadings  and  proof. — The  bill  introduced  may  contain  limi- 
tations of  the  carrier's  common-law  liability,  though  the  declaration  is  in  statutory 
form  "for  suits  on  a  bill  "of  lading  of  a  common  carrier."^^  Eecovery  because  the 
carrier  wrongfully  delivered  goods  without  collecting  a  draft  attached  to  the  bill 
of  lading  is  not  warranted  by  a  petition  alleging  that  the  goods  were  to  be  de- 
livered to  plaintiff's  order,  and  defendant  wrongfully  delivered  them  to  a  third 
person,  and  proof  that  the  goods  were  sold  by  plaintiff  to  such  third  person  and 
were  to  be  delivered  to  him  on  payment  of  the  draft.^^  A  contract  to  notify  the 
consignee  of  an  arrival  at  destination  must  be  alleged,  to  permit  a  failure  to  be 
a  ground  of  recovery.^'  Declaration  on  a  contract  as  executed  by  an  agent  pre- 
vents denial  of  the  agent's  authority  to  agree  to  a  limitation  of  liability.'^* 

Burden  of  proof. — The  carrier  must  show  that  injury  was  not  due  to  its  neg- 
ligence,^^ unless  recovery  is  sought  against  it  merely  as  voluntary  bailee,^^  or  there 
has  been  a  prima  facie  showing  that  losses  resulted  from  an  excepted  cause,^^  so, 
where  there  is  a  contract  against  liability  for  delay,  the  shipper  must  show  that 
delay  was  caused  by  negligence.^^  Wetting  of  goods  in  a  carrier's  possession  does 
not  compel  an  inference  of  negligence.^®  Where  the  carrier  has  exercised  wrong- 
ful control,  it  must  show  that  loss  did  not  occur  in  its  hands.^°  In  action  for  con- 
version, plaintiff  must  prove  nondelivery.'* 

Evidence  admissible. — Eulings  as  to  admissibility  of  evidence  are  grouped  in 
the  notes.'' 


17.  Action  for  delay  In  delivery,  damages 
special,  on  account  of  rice  being  wet  when 
shipped — Texas  &  N.  O.  R.  Co.  v.  Blgham 
(Tex.  Civ.  App.)   67  S.  "W.  522. 

18.  Louisville  &  N.  R.  Co.  v.  Johnson,  136 
Ala.    232. 

19.  Texas  Cent.  R.  Co.  ▼.  Dorsey  (Tex. 
Civ.   App.)    70   S.   W.    575. 

30.  Code,  §  2244,  requires  a  notice  with- 
in 24  hours  in  towns  of  over  2,000  population 
having  a  daily  mail  service.  The  plea  set  up 
that  the  property  was  destroyed  by  fire  in 
the  carrier's  depot  without  fault  on  its  part 
and  the  replication  was  held  merely  to  be 
a  denial  or  a  confession  and  avoidance — 
Louisville  &  N.  R.  Co.  v.  Johnson,  135  Ala. 
232. 

21.  Declaration  In  form  prescribed  by 
Code,  No.  15,  p.  946 — Louisville  &  N.  R.  Co. 
V.   Landers,    135   Ala.   504. 

22.  Fowler  V.  Railway  Co.  (Mo.  App.)  71 
S.    W.    1077. 

23.  Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Darby  (Tex. 
Civ.   App.)    67    S.   W.    129. 

24.  Complaint  in  action  against  an  ex- 
press company,  alleged  the  contract  was  ex- 
ecuted by  complainant's  agent — Adams  Exp. 
Co.  V.  Carnahan,   29  Ind.  App.   606. 


25.  Goods  Injured  by  water — Mears  v. 
Railroad  Co.  (Conn.)  52  Atl.  610,  56  L.  R.  A. 
884. 

26.  Goods  destroyed  before  delivery  to  the 
consignee — Frederick  v.  Railroad  Co.,  133 
Ala.    486. 

27.  Morse  v.  Railway  Co.,  97  Me.  77. 

28.  In  a  jurisdiction  where  the  carrier  is 
prevented  from  contracting  against  liability 
for  negligence — Anderson  v.  Railway  Co.,  93 
Mo.   App.   677. 

29.  Mears  v.  Railroad  Co.  (Conn.)  52  Atl. 
610,    56   L.    R.    A.    884. 

30.  A  carrier  which  did  not,  as  required 
by  its  contract,  give  an  owner  an  opportu- 
nity to  take  charge  of  the  entry  of  a  trunk 
at  a  port  but  sent  it  to  a  customs  house,  and 
after  its  entry  and  release  sent  it  by  express 
to  the  owner's  address,  must  show  that  a 
loss  therefrom  did  not  occur  while  it  was 
in  its  actual  custody — Fasy  v.  Navigation  Co., 
77   App.   Div.    (N.   Y.)    469. 

31.  Mere  showing  that  goods  were  turned 
over  to  a  carrier  to  be  delivered  to  a  certain 
person  is  not  sufficient — Collins  v.  Railway 
Co.,   94   Mo.  App.   130. 

32.  Not  fatal  to  admit  evidence  of  defect 
In  a  locomotive  claimed  to  have  set  the  fire. 


438 


CARRIERS   OF  GOODS. 


§   14 


Questions  of  laiu  and  fact. — Liability  of  the  owner  of  a  car  for  the  mistake 
of  an  emplo3'ee  of  a  railroad  company  in  sending  the  car  to  a  wrong  destination 
with  its  contents  is  a  question  of  law.^'  The  carrier  is  entitled  to  have  the  ques- 
tion of  whether  damages  were  sustained  before  delivery  to  it  submitted  to  the 
jury/*  or  the  furnishing  of  sufficient  watchmen,^'  or  whether  a  denial  of  liability 
did  not  excuse  a  definite  tender  of  injured  goods.*® 

Instructions.^'' — Where  the  consignee's  title  is  denied,  an  instruction  that  a 
sale  would  not  be  presumed  in  the  absence  of  cash  payment  or  an  actual  delivery 
is  improper.'* 

Sufficiency  of  evidence. — Particular  holdings  are  grouped  in  the  notes.®' 

§  14.  Freight  and  other  cJiargcs.*" — A  rate  per  hundred  pounds  in  car  lots 
delivered  at  the  point  named  covers  switching  charges  at  terminals  or  tolls  over 
other  lines,  and  an  unfilled  car  if  accepted  is  taken  at  such  rate.**     Collection  of 


though  It  was  shown  not  to  have  been  near 
the  place  at  the  time  of  the  flre — Denver  & 
R.  G.  R.  Co.  V.  Peterson  (Colo.  Sup.)  69  Pac. 
578.  Unless  It  was  shown  to  be  raining-  at 
the  time,  an  expressman  to  whom  delivery 
was  made  cannot  be  asked  as  to  care  taken 
on  rainy  days — Mears  v.  Railroad  Co.  (Conn.) 
52  Atl.   610.  56  L.  R.  A.  884. 

Bill  of  lading  acknowledging  receipt  of 
goods  is  evidence  of  delivery  to  the  carrier 
— Fasy  V.  Navigation  Co.,  77  App.  Dlv.  (N. 
T.)  469.  Freight  bill  not  connected  with  the 
goods  in  question  does  not  show  an  assump- 
tion of  liability  by  the  carrier  in  an  action 
for  goods  shipped  to  the  consicrnee  and 
stored  on  his  failure  to  remove  them,  the 
freight  bill  being  relied  on  to  show  an  agree- 
ment to  return  the  goods  to  the  consignor — 
Samuelson  v.  Steamship  Co.,  37  ]\Iisc.  (N.  T.) 
867.  Custom  to  contract  to  carry  over  the 
carrier's  and  connecting  lines  may  be  shown 
in  connection  with  the  evidence  that  it  so 
contracted — Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Leath- 
erwood  (Tex.  Civ.  App.)  69  S.  T\'.  119.  In  an 
action  for  failure  to  deliver  freight  it  may  be 
show^n  that  the  consignees  have  never  re- 
ceived It — Alabama  Midland  Ry.  Co.  v. 
Thompson,  134  Ala.  232;  and  plaintiff  may 
testify  that  he  has  not  received  payment — 
Southern  Ry.  Co.  v.  Allison,  115  Ga.  635. 
Where  it  is  contended  that  not  all  goods 
received  had  been  delivered,  it  may  be  shown 
that  the  car  was  sealed  at  the  loading  point 
and  remained  sealed  until  delivery — Mis- 
souri, K.  &  T.  Ry.  Co.  v.  Simonson.  64  Kan. 
802,  68  Pac.  653,  57  L.  R.  A.  765.  Evidence 
admissible  that  expressman,  receipting  for 
goods,  looked  at  the  box  in  which  they  w^ere 
and  made  no  complaint — Mears  v.  Railroad 
Co.  (Conn.)  52  Atl.  610.  56  L.  R.  A.  884.  It 
may  be  shown  that  the  shipper  chose  to  ship 
"owners'  risk,"  rather  than  "shippers'  risk" 
at  a  higher  rate — Mears  v.  Railroad  Co. 
(Conn.)   52  Atl.  610,  56  L.  R.  A.  884. 

33.  Richer  v.  Fargo,  77  App.  Dlv.  (N.  T.) 
550. 

34.  Texas  Cent.  R.  Co.  v.  Dorsey  (Tex. 
Civ.  App.)    70  S.  W.   575. 

35.  Though  It  is  contended  that  a  watch- 
man personally  discovered  the  fire  as  soon 
as  it  started,  if  the  jury  may  inquire  from 
the  evid'^nce  that  the  flre  may  have  besn 
in  existence  some  time  before  it?  discovery 
and  a  sufacient  force  of  watchmen  would 
have  aided  in  putting  it  out — Marande  v. 
Railway  Co.,  184  U.  S.  173,  46  U.  S.  Lawy. 
Bd.  487. 


36.  The  first  complaint  of  the  consignees 
was,  "We  feel  justified  for  putting  in  a 
claim  for  the  entire  shipment  and  holding 
the  goods  subject  to  your  inspection" — Hardy 
V.  American  Exp.  Co.,  182  Mass.  328. 

37.  Instruction  In  an  action  against  con- 
necting carriers  for  delay  does  not  allow  the 
jury  to  fix  the  liability  of  each  carrier  with- 
out regard  to  the  evidence,  where  it  direct? 
them  to  apportion  the  entire  amount  of  dam- 
ages among  the  defendants,  "according  to 
and  in  proportion  to  their  re:=pective  lia- 
bility as  indicated  by  instructions  already 
given" — Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Cushney, 
95  Tex.  309.  When  a  contract  containing  a 
limitation  of  liability  is  declared  on  and  the 
carrier  by  ansi^-er  relies  on  the  limitation, 
the  only  question  presented  is  that  of  negli- 
gence and  the  jury  should  not  be  instructed 
as  to  the  elements  of  a  contract  limiting  lia- 
bility and  the  burden  of  proof  of  establish- 
ing it — Wells,  Fargo  &  Co.  v.  Bell,  65  Ohio 
St.   408. 

38.  There  may  have  been  an  intention  to 
vest  title  in  the  consignee  sufficient  to  main- 
tain the  action — Texas  Cent.  R.  Co.  v.  Dorsey 
(Tex.  Civ.  App.)   70  S.  W.  575. 

39.  Delay  in  shipment  of  vegetables — San 
Antonio  &  A.  P.  Ry.  Co.  v.  Thompson  (Tex. 
Civ.  App.)  66  S.  W.  792.  To  support  a  recov- 
ery against  an  express  company  for  fish  Im- 
properly delivered  to  a  game  warden — Gra- 
ham V.  Express  Co.  (Minn.)  94  N.  W.  54S. 
To  show  receipt  of  freight — Southern  Ry. 
Co.  V.  Allison,  115  Ga.  635.  To  show  proper 
care  against  fire — Marande  v.  Railway  Co.. 
184  U.  S.  173,  46  U.  S.  Lawy.  Ed.  487.  Evi- 
dence of  cause  of  a  fire  b.ased  on  a  defect  in 
an  engine  shown  not  to  have  been  near  the 
depot  at  the  time,  held  insufficient — Denver 
&  R.  G.  R.  Co.  V.  Peterson  (Colo.)  69  Pac. 
578.  It  need  not  be  shown  that  a  locomotive 
was  near  cotton  destroyed  by  flre,  on  the  day 
of  a  flre,  in  order  that  the  case  may  go  to 
the  jury,  since  the  flre  may  have  been 
started  on  preceding  days  and  have  smould- 
ered until  discovered — !Marande  v.  Railwav 
Co.,  184  U.  S.  173.  46  U.  S.  Lawy.  Ed.  487. 
Evidence  held  sufficient  for  submission  to 
the  jury  of  issues  as  to  shipment  and  de- 
struction of  goods  by  fire  en  route — Rov.'an 
V.    Vi'ells,    Fargo    &    Co.,    114    N.    Y.    St.    Rep. 

'iO.  See  ante.  §  2,  for  unjust  discrimina- 
tion. 

41.  Chesapeake  &  Ohio  R.  Co.  v.  Dobbins 
23   Ky.  L.   R.    1588,   65  S.  W.    334. 


§  14 


IFREIGHT    AND    OTHER    CHARGES. 


439 


an  increased  rate  is  not  justified  by  the  fact  that  a  rate  fixed  by  aK  agent  was  due 
to  a  mistake,  and  knowledge  of  a  general  tariff  rate  does  not  prevent  a  recovery 
of  the  difference  between  such  rate  and  a  lesser  one,  where  the  consignee  has  knowl- 
edge that  the  lesser  rate  is  being  given  in  other  cases.*=^  A  contract  to  pay  "at 
the  rate  of  tariff"  does  not  create  a  liability  to  pay  more  than  the  rate  agreed 
on.*^  Eates  over  roads  of  different  gauge  may  be  apportioned  according  to  an 
arbitrary  standard.'** 

Evidence  of  establisliment  of  rates. — Commission  rates  cannot  be  established 
by  a  letter  from  one  of  the  commissioners.*^  The  fact  that  a  rate  higher  than 
that  contracted  for  is  in  a  tariff  filed  in  the  office  of  the  general  freight  agent  does 
not  show  that  it  was  established  and  published  as  required  by  the  Inter-State  Com- 
merce Act.*^ 

Rebates. — A  shipper  is  not  entitled  to  a  reduction  from  the  rate  fixed  by  a 
railroad  commission  for  cotton  to  be  compressed  in  transit,  where  a  shipment 
made  under  a  bill  of  lading  containing  such  privilege  is  not  compressed.*^ 

Persons  liable  for  charges. — The  consignor  is  not  discharged  from  liability 
by  the  fact  that  charges  are  to  be  collected  from  the  consignee,  as  the  consignee 
is  not  bound  to  pay  freight  charges  in  the  absence  of  an  agreement,  but  if  a  con- 
signee, with  knowledge  that  charges  are  not  paid  and  that  the  carrier  is  surrend- 
ering its  lien  therefor,  accepts  the  goods  and  removes  them,  an  agreement  to  pay 
the  known  and  stated  charges  may  be  implied.** 

Advances. — A  carrier  pays  a  lien  on  goods,  for  the  purpose  of  continuing 
transportation,  at  its  own  risk,  if  without  consent  of  the  owner,  but  the  connecting 
carrier  may  advance  charges  incident  and  necessary  to  the  transportation  paid  by 
the  preceding  carrier  and  retain  possession  of  the  goods  for  its  reimbursement, 
so  the  connect^iig  carrier  is  entitled  to  freight  paid  by  it  to  the  initial  carrier, 
though  such  carrier,  there  having  been  no  instruction,  has  so  routed  them  as  to 
incur  greater  charges  than  had  they  been  sent  by  the  most  direct  line.*®  A  carrier 
has  no  lien  for  customs  duties  paid,  if  goods  shipped  in  bond  to  a  specific  port 
have  been  diverted.^" 

The  receiving  carrier  is  not  liable  for  an  additional  charge  exacted  by  a  final 
carrier,  unless  it  is  shown  that  it  received  a  portion  of  the  sum  so  coUected.^^ 

Demurrage. — The  carrier  may  provide  a  reasonable  demurrage  charge;'^  if 
it  is  reasonable,  the  shipper  need  not  be  consulted,  and  he  is  charged  with  notice 
by  the  regular  rendition  of  bills  for  violation.®^  Weather  will  not  excuse  a  con- 
signee for  failure  to  unload  within  the  time  stipulated  by  the  bill  of  lading.®* 

Liens  and  enforcement. — A  lien  for  demurrage  may  be  had,  though  there  is 
no  express  stipulation  therefor,  and  it  is  not  lost  by  delivering  cars  on  to  a  switch 


43.  Southern  Ry.  Co.  v.  Machine  Co.,  135 
Ala.   315. 

43.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Leather- 
wood    (Tex.   Civ.   App.)    69   S.   W.   119. 

44.  Where  freight  rates  in  a  shipment 
over  a  narrow  gauge  and  standard  gauge 
road  are  proportioned  at  the  rate  of  three 
narrow  gauge  to  two  standard  gauge  cars, 
the  fact  that  the  standard  guage  road  is  not 
compelled  to  use  its  proportionate  number 
of  cars  to  carry  the  shipment  does  not  create 
an  overcharge  in  the  case  of  a  shipment  be- 
ginning on  the  narrow  gauge  line — Carlisle 
v.  Railway  Co.   (Mo.  App.)    71  S.  W.   475. 

45.  "Wells.  Fargo  Exp.  Co.  v.  Williams 
(Tex.  Civ.  App.)    71   S.  W.  314. 

46.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Leather- 
wood    (Tex.   Civ.   App.)    69   S.  V\^   119. 


47.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Orth- 
wein-Fitzhugh  (IJotton  Co.  (Tex.  Civ.  App.) 
69   S.   W.    490. 

48.  Central  R.  Co.  v.  MacCartney  (N.  J. 
Law)    52   Atl.    575. 

49.  Glover  v.  Railway  Co.,  95  Mo.  App. 
369. 

50.  Pearce  v.  Railroad  Co.,  89  Mo.  App. 
437. 

51.  Chicago,  R.  L  &  T.  Ry.  Co.  v.  Hen- 
derson   (Tex.   Civ.   App.)    73    S.    W.    36. 

52.  Darlington  v.  Railway  Co.  (Mo.  App.) 
72   S.  W.   122. 

53.  Pennsylvania  R.  Co.  v.  Steel  Co.,  201 
Pa.    624. 

54.  Darlington  v.  Railway  Co.  (Mo.  App.) 
72  S.  W.  122. 


440 


CARRIERS  OF  LIVE  STOCK. 


§  IS 


track."  On  refusal  of  goods  owing  to  damage  in  transit,  if  the  carrier  sell  them 
to  third  persons,  it  may  retain  its  charges  from  the  proceeds  of  the  sale.^^ 

Recovery  of  overpayment. — Freight  paid  under  protest  in  excess  of  the  rate 
mentioned  in  the  bill  of  lading  may  be  recovered."  A  letter  quoting  a  rate  agreed 
on,  written  by  the  general  freight  agent  to  the  shipper,  is  admissil)le  in  an  action 
to  recover  excess  freight."  In  an  action  to  recover  the  difference  between  the 
actual  rate  and  the  rate  exacted  over  a  connecting  line,  the  actual  rate  having 
been  stated  by  the  receiving  carrier,  a  general  denial  raises  the  issue  as  to  whether 
the  statements  are  binding  on  him."** 

Actions  for  freight  and  charges. — It  is  sufficient  to  aver  that  a  demurrage 
rule  since  its  adoption  has  formed  a  part  of  the  contract  of  carriage.®"  In  the  notes 
are  decisions  as  to  admissibility  of  evidence.®^  Demurrage  rules  may  be  so  rea- 
sonable as  not  to  be  a  question  for  the  jurj-.®* 

Part  3.  Carriage  of  live  stoclc.  §  15.  Duty  to  carry  and  contract  of  car- 
riage generally. — A  carrier  of  live  stock  has  a  reasonable  time  after  notice  in  which 
to  furnish  cars.®' 

A  written  contract  supersedes  an  oral  contract.®*  The  written  contract  may 
be  signed  after  delivery  to  the  carrier  if  at  the  time  of  delivery  it  was  the  inten- 
tion to  execute  such  a  contract.®'  An  agreement  to  carry  cattle  to  their  destina- 
tion in  a  shorter  time  is  on  a  sufficient  consideration,  if  based  on  an  agi-eement  of 
shipment  in  larger  lots.®® 

§  16.  Care  required  of  carrier. — A  carrier  of  cattle  is  bound  to  the  care, 
prudence  and  caution  which  ordinarily  careful,  prudent  and  cautious  men  exer- 
cise under  like  circumstances.®'^  It  is  not  an  insurer.®^  It  must  carry  with  rea- 
sonable diligence.®'  It  is  not  bound  for  injuries  resulting  from  the  inherent 
viciousness  of  the  stock  or  their  propensity  to  injure  one  another,"'*  nor  for  dam- 


55.  It  may  repossess  itself  of  such  cars 
to  enforce  demurragre  charges  though  the 
switch  tracli  is  on  private  land  leased  by  the 
consignee — Darlington  v.  Railway  Co.  (Mo. 
App.)    72  S.  W.  122. 

56.  Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Browne, 
27  Tex.  Civ.  App.   437. 

57.  Southern  Ry.  Co.  v.  Annlston  Foundry 
&  Mach.   Co.    135   Ala,   315. 

58.  Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Leather- 
wood   (Tex.  Civ.  App.)   69  S.  W.  119. 

59.  McLagan  v.  Railway  Co.,  116  Iowa,  183. 

60.  Pacific  R.  Co.  v.  Steel  Co.,  201  Pa.  624. 

61.  Bill  of  lading  is  admissible  in  an 
action  for  freight  where  the  plaintiff  relies 
on  a  special  promise  made  by  defendant  be- 
fore car  is  shipped,  though  after  issuance  of 
the  bill,  providing  that  the  consignee  should 
pay  freight.  Defendant  may  testify  that 
when  freight  was  to  be  prepaid  plaintiff 
so  indicated  It  on  the  bill  of  lading,  though 
he  has  never  before  shipped  to  a  station  at 
which  prepayment  was  required,  and  he  may 
show  that  he  had  no  title  to  the  goods  after 
they  were  placed  in  the  car — Montpelier  & 
AV.   R.   Co.   v.   Macchl,   74   Vt.    403. 

62.  Rule  charging  one  dollar  per  day  per 
car  after  forty-eight  hours  from  time  of 
readiness  for  delivery — Pennsylvania  R.  Co. 
v.  Steel  Co.,   201  Pa.   624. 

63.  Illinois  Cent.  Ry.  Co.  v.  Bundy,  97  111. 
App.    202. 

64.  Oral  contract  to  furnish  cars  and  a 
written  contract  providing  that  the  shipment 
was  not  to  be  transported  at  any  specified 
time,  delivered  at  any  particular  hour,  or  in 
season   for   any   particular   market,   and   that 


the  shipper  released  any  cause  of  action  for 
damages  accruing  to  him  by  any  previous 
contract — Helm  v.  Railway  Co.  (Mo.  App.) 
72  S.  "W.  148.  Recovery  cannot  be  had  on 
an  oral  contract  of  shipment,  though  it  is 
contended  that  a  written  contract  afterwards 
signed  limiting  defendant's  liability  was  ex- 
ecuted under  duress,  where  the  shipper  at 
the  time  of  the  oral  contract  had  knowledge 
of  a  requirement  that  contracts  of  shipment 
be  In  writing — Texas  Mexican  Ry.  Co.  v.  Gal- 
lagher  (Tex.  Civ.  App.)    70  S.  W.   97. 

65.  Texas  &  P.  Ry.  Co.  v.  Bvers  Bros. 
(Tex.    Civ.    App.)    73    S.    W.    427. 

66.  St.  Louis  S.  W.  R.  Co.  v.  Barnes  (Tex. 
Civ.   App.)    72   S.   W.   1041. 

67.  Texas  &  P.  Ry.  Co.  v.  Tribble  (Tex. 
Civ.  App.)  67  S.  W.  890.  An  instruction  is 
erroneous  binding  the  carrier  for  injuries 
unless  occasioned  by  act  of  God,  a  public 
enemy,  negligence  of  the  shipper,  or  some 
vicious  propensities  of  the  animals  them- 
selves— Fort  Worth  &  D.  C.  Ry.  Co.  v.  Lock 
(Tex.  Civ.  App.)  70  S.  W.  456.  A  carrier  is 
not  liable  for  the  death  of  a  horse  from  men- 
ingitis if  it  was  not  forewarned  and  took  all 
possible  care  of  the  animal  after  the  at- 
tack— Klair  v.  Steamboat  Co.  (Del.)  54  Atl. 
694. 

68.  Louisville  &  N.  R.  Co.  v.  Harned,  23 
Ky.  L.  R.  1651.  66  S.  W.  25. 

69.  Held  error  to  instruct  that  It  must 
carry  stock  to  its  destination  in  as  safe  and 
speedy  a  way  as  possible — International  & 
G.  N.  R.  Co.  V.  Young  (Tex.  Civ.  App.)  72 
S.  W.  68. 

70.  Instructions    to    this    effect    should    be 


§  18 


DELIVERY— CONNECTING  CARRIERS. 


441 


ages  of  which  the  shipper's  negligence  is  the  proximate  cause.^^  The  fact  that  a 
shipper  has  expressed  satisfaction  with  the  bedding  placed  in  cars  before  they  are 
turned  over  to  him  may  prevent  his  assertion  of  negHgence  in  such  regard."  The 
carrier  is  liable  for  ill  treatment  of  cattle  being  held  for  charges.'^^ 

In  loading,  the  carrier  is  bound  to  the  care  required  in  dealing  with  the  par- 
ticular animal,  reference  being  had  to  his  known  instincts  and  habits.^*  An  un- 
necessary delay,  exposing  cattle  to  severe  cold,  cannot  be  excused  on  the  ground  that 
the  unseasonable  cold  was  an  act  of  God.^^  Making  a  flying  switch  may  be  gross 
carelessness.''^* 

Unreasonable  delay  in  the  transportation  of  stock  is  not  excused  by  a  slippery 
track  resulting  from  a  heavy  dew.''^  The  carrier  is  usually  liable  for  damages 
resulting  from  deviation  from  the  route  selected  by  the  shipper,'^^  but  if  the  shipper 
has  made  no  selection,  the  initial  carrier  may  choose  the  route,  the  shipper's  rights 
being  duly  regarded.'^* 

§  17.  Delivery. — On  an  agreement  to  deliver  to  a  consignee  at  the  stock. 
yards,  it  cannot  be  contended  that  delivery  was  undertaken  only  to  the  ordinary 
freight  station.^"  The  carrier  need  not  deliver  stock  to  connecting  roads  for  de- 
livery to  other  yards  in  the  city,  if  it  has  provided  adequate  yards  of  its  own.**^ 
Since  the  consignee  is  not  bound  to  receive  cattle  at  midnight,  the  carrier's  lia- 
bility does  not  cease  on  a  tender  at  that  time.^^  The  shipper  cannot  hold  the 
carrier  as  for  a  conversion  by  reason  of  a  mere  delay.®' 

§  18.  Liability  of  carrier  or  connecting  carrier.  Through  contracts.^* — The 
liability  of  an  original  carrier  for  negligence  of  a  final  carrier  is  purely  statutory 
where  so  provided,®'*  and  is  the  same  whether  the  original  contract  is  verbal  or 
written.®*  If  the  carrier  contracts  to  deliver  at  a  certain  point,  it  is  liable  for 
injury  on  a  connecting  line,"  though  not  where  the  consignor  accepts  a  bill  of 
lading  from  another  carrier  beyond  the  terminus  of  the  initial  carrier,®®  or  if  the 
contract  is  to  carry  by  connecting  lines,  the  first  acting  as  agent  only  for  such 
lines  with  distinct  freight  charges,  in  which  case  the  contract  is  severable.®'  A 
through  contract  of  shipment  is  sufficiently  shown  by  evidence  that  the  shipper  ar- 
ranged for  transportation  to  a  point  beyond  the  terminus  of  the  carrier,  with 


given — International  &  G.  N.  R.  Co.  v.  Young 
(Tex.  Civ.  App.)  72  S.  W.  68. 

71.  Where  dogs,  shipped  by  a  train  earlier 
than  directed,  are  returned  to  the  place  ^f 
shipment,  there  being  no  one  to  receive  them 
and  the  shipper  directs  that  they  be  sent 
back  the  next  day  without  caring  for  them, 
the  carrier  is  not  liable  for  the  death  of  one 
of  them  from  confinement — Harrison  v.  Weir, 
71   App.   Div.    (N.    Y.)    248. 

72.  Texas  Cent.  R.  Co.  v.  O'Laughlln  (Tex. 
Civ.  App.)    72  S.  W.   610. 

73.  Recovery  is  not  prevented  by  the  fact 
that  shippers  have  refused  for  a  time  to  pay 
a  rate,  higher  than  contracted  for,  demanded 
at  the  destination — Gulf,  C.  &  S.  F.  Ry.  Co. 
V.  Leathervs^ood  (Tex.  Civ.  App.)  69  S.  W. 
119. 

74.  A  steamboat  company  is  not  relieved 
from  liability  for  injuries  received  by  a  jack 
in  resisting  attempts  to  load  him,  by  the  fact 
that  they  used  only  necessary  force  in  the 
operation — Jones  v.  Memphis  &  A.  C.  Packet 
Co.    (Miss.)    31   So.    201. 

75.  Texas  &  P.  Ry.  Co.  v.  Smissen  (Tex. 
Civ.  App.)   73  S.  W.  42. 

76.  Chicago  &  N.  W.  Ry.  Co.  v.  Calumet 
Stock  Farm,    96   111.   App.   337. 


77.  Missouri,  K.  &  T.  R.  Co.  v.  Truskett, 
186  U.  S.  479,  46  U.  S.  Lawy.  Ed.  1259. 

78,  79.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Irvine 
(Tex.   Civ.   App.)    73  S.   W.   540. 

80.  Agreement  to  deliver  at  Kansas  City 
stock  yards  is  not  fulfilled  by  delivery  at 
Kansas  City  station — Jones  v.  Railroad  Co. 
89    Mo.    App.    653. 

81.  Central  Stock  Yards  Co.  v.  Railroad 
Co.    (C.    C.   A.)    118    Fed.    113. 

82.  On  the  consignee's  refusal  to  receive 
them  they  were  unloaded  and  placed  in  the 
company's  pens — Houston  &  T.  C.  Ry.  Co.  v. 
Trammell    (Tex.   Civ.   App.)    68   S.   W.   716. 

83.  Though  a  shipment  of  live  stock  Is 
thereby  injured  and  depreciated  in  value — 
Spalding  v.  Railroad  Co.  (Mo.  App.)  73  S.  W, 
274. 

84.  See  ante,  §§  3,  11.  General  rules  as  to 
connecting  carriers  and  application  to  car- 
riage of  goods  and  merchandise. 

85.  8G.  Rev.  St.  art.  331a — Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  Botts  (Tex.  Civ.  App  )  70 
S.  W.   113. 

87.  Texas  &  P.  Ry.  Co.  v.  McCarty  (Tex 
Civ.   App.)    69   S.  W.    229. 

88.  Hartley  v.  Railroad  Co..  115  Iowa,  612. 

89.  Hughes    V.    Railway    Co.,    202    Pa.    22'>' 


442 


CARRIERS  OF  LIVE   STOCK. 


§  18 


privilege  of  changing  the  destination  to  another  place.^"     A  way  bill  issued  for  the 
guidance  of  an  initial  carrier's  employes  does  not  prove  partnership  or  agency.^ 

Where  the  carrier  guarantees  the  suitableness  of  cars,  it  is  liable  for  injuries 
from  their  defective  condition,  whether  on  its  own  line  or  on  connecting  lines.- 

Righfs  of  holders  of  separate  hills  of  lading. — A  connecting  carrier  who  is- 
sues an  independent  bill  of  lading  sustains  no  contractual  relation  to  a  transferee 
of  the  bill  of  lading  of  the  initial  carrier,  rendering  it  liable,  where  the  shipper  of 
the  goods  sells  a  portion  thereof  at  a  point  on  the  connecting  carrier's  line.^ 

Limitation  of  liability.* — Connecting  carriers  are  not  jointly  liable  for  in-- 
juries  on  either  line,  where  there  is  no  agency  or  partnership,  and  the  contract 
limits  the  liability  of  each  to  its  own  line.^  A  carrier  may  provide  that  its  liability 
shall  cease  at  its  terminus  when  the  stock  is  ready  to  be  delivered  to  the  connecting 
carrier.*  After  a  custom  to  ship  for  many  years  under  a  contract  limiting  the 
carrier  to  losses  occurring  on  its  own  line,  it  will  be  presumed  that  the  shipper 
intended  to  ship  in  the  usual  way,  and  it  will  not  be  inferred  that  there  was  any 
fraud  or  mistake/  A  written  contract  of  shipment  controls  a  verbal  agreement, 
in  the  absence  of  evidence  of  fraud,  compulsion  or  want  of  time  to  examine  the 
writing.*  A  written  contract  for  shipment  to  a  point  on  the  carrier^s  line,  limit- 
ing liability  to  such  line,  is  not  affected  by  a  way  bill  issued  by  the  carrier  for 
guidance  of  its  employes,  terming  the  shipment  as  a  "through  line  stock  way  bill" 
to  a  point  on  a  connecting  line.® 

Duty  to  deliver  to  succeeding  carrier. — A  connecting  carrier  is  not  justified 
by  a  void  state  quarantine  line  in  refusing  to  transport  cattle  consigned  on  a 
through  bill  of  lading  not  issued  by  it  to  the  place  of  delivery  to  a  third  carrier 
not  within  the  line,  though  the  ultimate  destination  is  within." 

Delay. — Where  the  initial  carrier  issues  a  way  bill  stating  that  the  entire 
freight  has  been  paid,  the  connecting  carrier  is  liable  for  negligence  of  its  agent, 
who,  without  notice  of  the  fact  that  the  freight  has  been  paid,  states  to  the  final 
carrier  that  it  was  unpaid,  and  causes  such  carrier  to  hold  the  freight  until  pay- 
ment, and  is  liable  for  damages  resulting  from  delay.^^  Where  cattle  are  billed  to 
an  erroneous  destination  on  a  connecting  line  by  the  agent  of  an  initial  carrier, 
such  act  is  the  proximate  cause  of  loss  from  failure  to  get  them  on  a  certain  mar- 
ket, if  the  connecting  carrier  would  have  delivered  them  on  time  but  for  the  mis- 
take." 

Liability  of  final  carrier. — The  last  of  a  line  of  carriers  is  not  necessarily 
responsible  for  loss  of  cattle  where  it  has  received  a  car  sealed,  but  has  not  re- 
ceipted for  it  as  in  good  order.^' 


90.  Texas  Mexican  Ry.  Co.  v.  Gallagher 
(Tex.  Civ.  App.)   64  S.  W.  809. 

1.  San  Antonio  &  A.  P.  Ry.  Co.  v.  Barnett, 
27   Tex.  Civ.  App.   498. 

2.  Burnside  &  C.  R.  R.  Co.  v.  Tupman,  24 
Ky.  L.  R.   2052.   72  S.  W.   786. 

3.  Robert  C.  White  Live  Stock  Commission 
Co.  V.   Railway  Co.,   87  Mo.  App.   330. 

4.  See  ante.  §  12,  as  to  limitations  on  car- 
riage of  goods. 

5.  Texas  &  P.  Ry.  Co.  v.  Byers  Bros. 
(Tex.  Civ.  App.)   73  S.  W.   427. 

6.  Const.  §  106,  denying  carriers  the  right 
to  contract  from  exemption  from  common 
law  liability,  does  not  apply — Pittsburg,  C, 
C.  &  St.  L.  R.  Co.  V,  Viers.  24  Ky.  L.  R.  356, 
68    S.   W.    469. 

7.  Richmond,  N.  I.  &  B.  R.  Co.  v.  Rich- 
ardson.   23  Ky.  L.  R.   2234,   66  S.  "W.   1035. 

8.  So  a  v.-ritten  contract   to  deliver  cattle 


at  a  point  on  the  carrier's  line  controls  an 
alleged  verbal  agreement  for  through  car- 
riage, though  the  consignor  claims  that  he 
was  forced  to  execute  the  written  contract 
in  order  to  get  the  cattle  moved,  and  the 
evidence  showed  that  it  was  executed  at  his 
direction  to  secure  free  transportation  for 
the  helpers — San  Antonio  &  A.  P.  Ry.  Co.  v. 
Barnett,   27   Tex.   Civ.  App.   498. 

9.  San  Antonio  &  A.  P.  Ry.  Co.  v.  Bar- 
nett. 27  Tex.  Civ.  App.  498. 

10.  Tex.  R.  S.  1S95,  art.  4535,  requiring 
the  acceptance  of  freight  by  carriers — Fort 
Worth  &  D.  C.  Ry.  Co.  v.  Masterson,  95  Tex. 
262. 

11.  Missouri,  K.  &  T.  Ry.  Co.  v.  Dilworth 
(Tex.  Civ.  App.)    65  S.  "W.  502. 

12.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Harris 
(Tex.   Civ.  App.)    72   S.  W.   71. 

la.     Civil    Code.    §    2298,    provides    that    tlie 


i  19 


LIMITATION  OF  LIABILITY. 


443 


§  19.  Limitation  of  Uahility.^* — Where,  by  special  contract,  a  carrier  of 
live  stock  has  limited  its  liability  to  that  of  a  private  carrier  for  hire,  it  is  not 
bound  to  exercise  extraordinary  diligence.^°  A  carrier  cannot  exempt  itself  from 
liability  for  negligence  with  regard  to  stock,  on  consideration  of  making  a  lower 
rate,^®  nor  can  it  by  a  contract  relieve  itself  from  liability  for  gross  negligence.^' 
It  may  exempt  itself  from  liability  from  loss  in  loading  and  unloading.^*  The  law 
of  the  place  of  the  accident  will  control  with  regard  to  limitations  of  liability.^® 
Liability  for  a  connecting  carrier's  acts  may  be  stipulated  away.^° 

Limitations  as  to  amount. — An  agreement  to  transport  cattle  at  a  less  rate, 
in  consideration  of  an  agreement  that  the  value  of  stock  shall  be  limited,  is  not 
invalid  as  a  partial  exemption  from  negiigence,^^  but  has  been  held  to  be  against  pub- 
lic policy,  if  the  value  stated  is  greatly  below  the  true  value,  whether  the  carrier 
has  information  thereof  or  not.^^  In  Kentucky,  it  is  held  that  the  carrier  cannot 
limit  its  liability  to  a  stipulated  value  or  free  itself  from  claims  of  loss  or  damage 
unless  made  in  writing,  verified  and  delivered  to  an  agent  of  the  carrier  in  a 
stipulated  time  from  removal  of  the  stock  from  the  cars.^^ 

Consideration. — A  reduced  rate  is  a  sufficient  consideration  for  a  release  of  lia- 
bility in  excess  of  a  declared  value,^*  and  a  recital  in  a  contract  that  a  rate  is  a 
reduced  one  is  prima  facie  evidence  that  it  is.^"*  A  rate  which  is  the  only  rate  given 
is  not  a  reduced  rate.^®  A  contract  to  care  for  stock  is  not  without  consideration, 
though  no  reduction  is  made  in  the  regular  rate.^'^  The  question  of  whetlier  a  lim- 
itation of  liability  is  honestly  made  as  a  basis  for  freight  charges  is  for  the  jury.-* 

Assent  to  limitation. — A  shipper  is  not  bound  to  a  restriction  in  a  contract 
unless  he  accepts  it  understandingly  and  assents,  and  the  question  of  whether  a 
limitation  is  fairly  made  is  for  the  jury.^®  If  the  limitation  is  in  the  bill  of 
lading,  constituting  both  the  receipt  and  contract,  it  must  be  shown  that  the  shipper 
assented,^"  and  it  has  been  also  held  that  the  agreement  must  be  outside  the  biU.^^ 

Provisions  that  shipper  shall  accompany  and  care  for  or  load  and  unload  stocTc. 
— The  carrier  may,  by  contract,  relieve  itself  of  the  duty  of  feeding  and  watering 


last  company  receiving  the  goods  as  In  good 
order  siiall  be  responsible.  The  goods  In 
question  were  shipped  for  a  reduced  rate 
under  a  special  contract  requiring  the  ship- 
per to  accompany  the  stock,  load  and  unload 
it  at  its  own  risk,  and  the  carrier  was  re- 
leased from  the  injury  and  damage  not 
caused  by  fraud  or  gross  negligence — Susong 
V.   Railroad  Co.,   115   Ga.   361. 

14.  See  ante,  §  12,  as  to  carriage  of  goods 
with   limitations. 

15.  Central  of  Georgia  Ry.  Co.  v.  Glass- 
cock  fGa.)    43   S.   E.   981. 

16.  Normile  v.  Oregon  Nav.  Co.,  41  Or. 
177,    69    Pac.    928. 

17.  Chicago  &  N.  "W.  Ry.  Co.  v.  Calumet 
Stock  Farm.  194  111.  9. 

IS.  Robert  C.  White  Live  Stock  Commis- 
sion Co.  V.  Railwaj^  Co.,  87  Mo.  App.  330. 

19.  Limitation  of  value  will  not  be  en- 
forced though  the  contract  is  made  outside 
the  state  by  connecting  carriers  for  carriage 
to  a  point  "within  the  state — Hughes  v.  Rail- 
road Co.,   202  Pa.    222. 

20.  See  ante,  §  18. 

21.  Normile  v.  Oregon  Nav.  Co.,  41  Or. 
177,  69  Pac.  928.  In  case  there  is  an  agreed 
limitation  of  the  amount  of  liability  the  jury 
cannot  be  instructed  that  the  measure  of 
damages  is  the  market  value  of  live  stock — 


Central  of  Georgia  Ry.  Co.  v.  Glasscock  (Ga.) 
43  S.  B.  981. 

22.  Southern  Ry.  Co.  v.  Jones  (Ala.)  132 
Ala.  437. 

23.  Illinois  Cent.  R.  Co.  v.  Radford,  23 
Ky.   L.    R.   886,    64    S.   W.    511. 

24.  25,  26.  Bowring  v.  Railroad  Co.,  90  Mo. 
App.   324. 

27.  Rev.  St.,  art.  326 — Tex.  &  P.  Ry.  Co. 
v.  Peters   (Tex.  Civ.  App.)   71  S.  W.  70. 

28.  O'Malley  v.  Railway  Co.,  86  Minn.  380. 

29.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Patton,  104  111.  App.  550.  As  where  the  evi- 
dence was  that  on  payment  of  freight  char- 
ges, plaintiff  was  given  a  contract  which  he 
signed  without  reading,  there  having  been 
no  representations  made  as  to  the  value  of 
stock,  which  was  inserted  In  the  contract 
by  the  agent,  and  no  evidence  that  the 
freight  charges  were  in  any  way  controlled 
by  valuations — O'Malley  v.  Railway  Co.,  86 
Minn.    380. 

30.  Chicago  &  N.  W.  Ry.  Co.  v.  Calumet 
Stock  Farm,  194  111.  9. 

31.  A  provision  in  a  bill  of  lading  stipu- 
lating the  value  of  horses  shipped  is  not 
binding,  there  being  no  agreement  outside 
the  bill  though  valuable  horses  are  shipped 
at  a  reduced  rate — Louisville  &  N.  R.  Co. 
V.  Frazee,  24  Ky.  Law  Rep.  1273,  71  S.  W. 
437. 


444 


CARRIERS   OF  LIVE  STOCK. 


§  20 


animals,"  proper  facilities  being  provided  the  shipper,^^  but  remains  liable  where 
it  fails  to  furnish  such  facilities/*  and  it  has  been  held  that  failure  of  the  shipper 
to  comply  with  an  agreement  requiring  him  to  furnish  a  person  to  accompany  the 
stock  and  care  for  it  does  not  relieve  the  carrier  from  the  duty  to  transport  with- 
out unreasonable  delay,  and  to  care  for  the  stock  at  the  shipper's  expense.'^  Though 
cattle  are  to  be  in  sole  charge  of  a  person  selected  by  the  shipper,  the  carrier,  while 
not  liable  for  lack  of  attention  or  care,  is  liable  for  a  wrongful  act  of  its  em- 
ployees injuring  the  animals.*®  If  the  shipper  is  given  free  transportation  and 
facilities  the  carrier  is  not  liable  for  an  injury  from  failure  to  water,  through  the 
shipper's  fault.*^  A  carrier  is  liable  for  negligence  in  unloading,  though  there 
is  a  stipulation  that  the  shipper  shall  unload.**  Where  a  contract  for  reduced 
rate  contained  a  provision  that  the  owner  should  load  and  unload  stock  at  his 
own  risk  and  should  ride  on  the  freight  train,  he  is  bound  to  have  some  one  rep- 
resenting him  on  the  train,  though  he  is  given  a  pass  on  a  passenger  train.*^  A 
contract  providing  that  the  shipper  shall  load  at  his  own  risk  and  exempting  the 
carrier  from  injury  resulting  from  overloading,  fright  or  crowding  of  the  ani- 
mals, relieves  the  carrier  from  liability,  where  loss  is  occasioned  by  putting  too  many 
horses  in  one  car  or  leaving  them  loose  in  the  car.*" 

Provisions  for  notice  of  injury. — A  contract  providing  that  notice  of  claim  for 
injury  must  be  given  in  writing  before  removal  of  stock  is  reasonable,  and  such 
notice  is  essential.*^  If  notice  is  given  for  certain  cattle  which  died  before  re- 
moval, recovery  cannot  be  for  cattle  dying  after  removal.*^  A  requirement  of  no- 
tice of  injury  before  removal  of  cattle  is  met  by  notice  within  a  reasonably  short 
time  after  discovery  of  injury,  if  such  injury  was  not  discoverable  before  removal, 
though  notice  was  given  as  to  other  cattle  before  removal.** 

Waiver  of  limitation. — Written  notice  of  injury  is  waived  by  action  being 
taken  on  verbal  notice.** 

§  20.  Procedure  in  actions  relating  to  carriage  of  stocl\*°  Venue. — A  con- 
necting carrier  receiving  cattle  without  limitation  of  liability  will  be  regarded  as 
having  ratified  the  original  contract,  and  may  be  sued  in  the  county  where  it  was 
made.*® 

Limitations  and  conditions  precedent. — Actions  for  injuries  resulting  from  de- 
fective condition  of  a  car,  expressly  guaranteed  to  be  sufficient,  are  not  controlled 
by  a  general  limitation  of  actions  for  injuries  to  cattle  by  railroads.*'^  A  demand 
for  other  cars  in  writing  is  not  necessary  to  a  recovery  on  account  of  defects  in 
cars  furnished.** 


32.  As  by  a  stipulation  In  case  of  acci- 
dent or  delay  the  owner  is  to  care  for  the 
stoclc  at  his  own  expense  and  shall  have  all 
proper  facilities  on  trains  to  take  care  there- 
of— Seaboard  &  R.  R.  Co.  v.  Cauthen,  115 
Ga.  422. 

33.  Such  Is  not  a  limitation  of  liability 
forbidden  by  the  Constitution,  art.  11,  §  4 — 
Chicago,  St.  P..  M.  &  O.  R.  Co.  v.  Schuldt 
(Neb.)  92  N.  W.  162;  Texas  &  P.  Ry.  Co.  v. 
Byers    Bros.    (Tex.    Civ.    App.)    73    S.    W.    427. 

34.  Illinois  Cent.  R.  Co.  v.  Eblen,  24  Ky. 
Law  Rep.   1609,   71  S.  W.   919. 

35.  Spalding  v.  Railroad  Co.  (Mo.  App.) 
73   S.  W.   274. 

30.  Schureman  v.  Railway  Co.,  88  Mo.  App. 
183. 

37.  Chicago,  St.  P.,  M.  &  O.  R.  Co.  v. 
Schuldt  (Neb.)   92  N.  W.  162. 

38.  Normile  v.  Navigation  Co.,  41  Or.  177, 
69   Pac.    928. 


39.  Susong  v.  Railroad  Co.,  115  Ga.  361. 

40.  Morse  v.   Railway  Co.,   97  Me.   77. 

41.  Southern  Ry.  Co.  v,  Adams,  115  Ga. 
705. 

42.  43.  Louisville  &  N.  R.  Co.  v.  Landers, 
135  Ala,   504. 

44.  St.  Louis,  L  M.  &  S.  Ry.  Co.  v.  Jacobs. 
70  Ark.  401. 

45.  See  ante,  §  13,  general  questions  of 
procedure. 

46.  Pittsburg,  C,  C.  &  St.  L.  R.  Co.  v. 
Viers,    24   Ky.   L.   R.    356.   68   S.  W.   469. 

47.  Burnside  &  C.  R.  R.  Co.  v.  Tupman, 
24  Ky.  L.  R.  2052,  72  S.  W.  786. 

48.  The  shipper  held  cattle  at  a  certain 
point  on  account  of  a  failure  to  furnish  cars 
at  an  agreed  time — Gulf,  C.  &  S.  F.  Ry.  Co. 
V.  Irvine  &  "Woods  (Tex.  Civ.  App.)  "73  s 
W,   540. 


k 


§  20 


PROCEDURE. 


445 


Who  may  sue. — Eecovery  of  expenses  of  feed,  due  to  delay  in  sailing,  may  be 
had  by  the  shipper  without  proof  of  ownership  of  cattle/'' 

Pleading. — The  shipper  need  not  declare  on  the  special  contract  exacted  by 
the  carrier,  if  he  seeks  to  recover  for  negligence.®"  Gross  negligence  may  be  proved 
onder  an  allegation  of  willful  and  reckless  negligence.®^  The  negligence  charged 
may  be  changed  by  an  amendment  at  the  close  of  plaintiff's  evidence.®^  Wliere  there 
is  a  general  denial  of  an  allegation  of  the  value  of  a  horse,  an  affirmative  allega- 
tion that  the  horse  was  traded  for  one  of  slight  value  is  irrelevant.®^  If  interest 
is  sought  to  be  recovered  as  an  element  of  damage,  it  must  be  pleaded.®*  If  a 
plaintiff  places  a  contract,  requiring  the  owner  to  care  for  stock,  in  issue  by  a 
<supplementary  petition,  he  cannot  avail  himself  of  defendant's  failure  to  plead  it.®® 

Variance.^^ — Where  plaintiff  in  his  evidence  expressly  denies  a  joint  contract 
with  connecting  carriers  and  such  issue  is  not  submitted,  defendant  cannot  have 
a  peremptory  instruction  on  the  ground  that  a  joint  contract  was  declared  on  and 
not  proved.®^  Eecovery  on  contract  cannot  be  had  on  a  declaration  on  the  com- 
mon-law liability  for  negligence,®^  or  recovery  on  liability  as  a  warehouseman  on 
a  declaration  on  liability  as  a  common  carrier.®^  There  is  a  fatal  variance  between 
a  declaration  on  common-law  liability  and  evidence  of  a  valid  contract  stipulating 
for  limited  liability.^" 

Burden  of  proof. — If  the  shipper  undertakes  to  care  for  stock  and  load  and 
unload,  he  must  show  that  injury  resulted  from  the  carrier's  negligence.''^  Where 
the  shipper  examines  cars,  the  burden  is  on  him  to  show  that  an  injury  resulted 
from  a  concealed  defect.^^ 

Admissibility  of  evidence.^^ — Evidence  of  what  the  stock  sold  for  at  a  differ- 
ent time  and  place  than  at  the  point  of  destination  is  improper.^*  Where  recov- 
ery over  is  not  sought  by  a  defendant  connecting  carrier  for  failure  of  an  initial 


49.  There  being  no  stipulation  to  sucli 
effect — Morris  v.  "Wilson  Sons  &  Co.  (C.  C. 
A.)    114   Fed.    74. 

50.  Where  the  carrier  is  liable,  notwith- 
standing- the  contract — Southern  Pac.  Ry. 
Co.  V.  Arnett  (C.  C.  A.)  Ill  Fed.  849. 

51.  Chicag-o  &  N.  W.  Ry.  Co.  v.  Stock 
Farm,    194    111.    9. 

53.  Original  allegation  of  negligence  In 
shipping  a  horse  in  a  car  recently  used  for 
transportation  of  fresh  lime,  amendment  that 
the  horse  caught  cold  from  undue  exposure 
to  the  elements  while  in  the  car — Galliers 
V.   Railroad   Co.,   116   Iowa,    319. 

.'>3.     Galliers  v.  Railroad  Co.,  116  Iowa,  319. 

54.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Lee  (Tex. 
Civ.  App.)    65  S.  W.  54. 

55.  Texas  &  P.  Ry.  Co.  v.  Peters  (Tex. 
Civ.  App.)    71  S.  W.  70. 

56.  Where  the  shipper  alleged  that  live 
stock  was  never  received  by  him,  and  the 
answer  alleged  that  the  property  had  been 
abandoned  by  the  shipper  to  the  carrier 
while  in  transit,  and  that  it  had  been  sold 
on  the  shipper's  account,  and  there  was  a 
tender  of  the  proceeds,  it  cannot  be  deter- 
mined whether  the  amount  tendered  was  the 
amount  actually  realized  or  whether  it  was 
the  amount  that  should  have  been  realized 
— Spalding  v.  Railroad  Co.  (Mo.  App.)  73  S. 
W.   274. 

57.  Texas  &  P.  Ry.  Co.  v.  Hall  (Tex.  Civ. 
App.)    72   S.    W.    1052. 

58.  Pennsylvania  Co.  v.  Walker,  29  Ind. 
App.   285. 

59.  Normile  v.  Navigation  Co.,  41  Or.  177, 
69  Pac.   928. 


60.  Normile  v.  Navigation  Co.,  41  Or  177 
69    Pac.    928.  '  ' 

61.  Louisville  &  N.  R.  Co.  v.  Harned  23 
Ky.   L.    R.    1651,    66   S.   W.    25. 

62.  The  contract  recited  that  the  shipper 
found  the  cars  in  good  order  and  sufflcient, 
and  the  injury  was  received  through  the 
animal  getting  his  foot  in  a  crack — Williams 
V.   Central  of  Georgia  R.  Co.    (Ga.)    43   S.   E. 

63.  Death  of  the  cattle  several  days  after 
leaving  the  cars  may  be  shown — Gulf,  C.  & 
S.  F.  Ry.  Co.  V.  Irvine  &  Woods  (Tex.  Civ. 
App.)  73  S.  W.  540.  Where  a  carrier  shipped 
over  a  route  other  than  that  selected  by  the 
shipper,  evidence  as  to  the  customary  run- 
ning time  of  trains  over  such  route  is  admis- 
sible though  evidence  as  to  the  speed  of  one 
freight  train  at  a  certain  time  is  not — 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Irvine  &  Woods 
(Tex.  Civ.  App.)  73  S.  W.  540.  It  may  be 
shown  that  at  the  time  cattle  were  shipped 
they  were  not  fit  to  stand  transportation 
from  a  warmer  to  a  cooler  climate  through 
the  mountains,  and  that  the  effect  of  their 
becoming  numb  by  cold  would  cause  them 
to  lie  down  and  be  unable  to  get  up — South- 
ern Pac.  Co.  V.  Arnett  (C.  C.  A.)  Ill  Fed. 
849.  It  may  be  shown  that  the  time  made 
was  unusually  slow  for  a  stock  train  and 
that  the  bad  condition  of  the  cattle  was  due 
to  bad  treatment  en  route — Southern  Pac. 
Co.  V.  Arnett  (C.  C.  A.)  Ill  Fed.  849.  Evi- 
dence that  an  injury  occurred  after  a  car 
was  delivered  to  a  connecting  carrier  may 
be  excluded,  where  the  injury  is  due  to  the 
defective  condition  of  the  car — Burnside  &  C 


446 


CARRIERS  OP  LIVE  STOCK. 


§  20 


carrier  to  notify  when  the  cattle  were  ready  for  delivery  to  it,  evidence  as  to  such 
notice  cannot  be  admitted.®^ 

Questions  of  law  and  fact.^^ — A  written  statement  by  the  person  in  charge 
of  stock  as  to  their  condition  need  not  be  construed  by  the  court."  Where  there 
is  a  conflict  of  cAddence,  as  to  whether  one  suing  shipped  as  owner  or  as  factor,  the 
question  is  for  the  jury,®^  as  is  the  question  of  whether  a  rate  named  in  the  con- 
tract is  a  special  or  a  regular  one,*^^  or  of  whether  there  is  an  agreement  as  to 
value  or  a  mere  attempt  to  limit  liability  for  negligence  in  a  bill  of  lading,^"  or  of 
whether  a  mule  unloaded  is  properly  secured  so  as  to  cause  the  carrier's  liability  to 
ceaseJ^  After  negligence  is  shown,  the  extent  of  the  injury  resulting  therefrom 
is  for  the  jury.''^ 

Sufficiency  of  evidenced — In  actions  for  negligent  injury  to  live  stock,  the 
rule  of  disregarding  evidence  in  contradiction  of  obvious  physical  facts  cannot  be 
applied.'^* 

Instructions.''^ — If  the  carrier's  liability  is  limited  to  its  own  line,  it  is  en- 
titled to  an  instruction  that  it  is  not  liable  for  injury  after  the  stock  passes  from 


R.  R.  Co.  V.  Tupman,  24  Ky.  L.  R.  2052,  72 
S.  W.  786. 

64.  International  &  G.  N.  R.  Co.  v.  Young 
(Tex.  Civ.  App.)   72  S.  W.  6S. 

65.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Butler 
(Tex.  Civ.  App.)  73  S.  W.  84. 

66.  The  evidence  of  one  of  defendant's 
witnesses  that  stock  could,  after  delivery 
by  a  connecting-  carrier,  have  been  delivered 
at  its  destination  in  time  for  the  market 
agreed  on,  renders  the  question  of  the  pos- 
sibility of  such  delivery  for  the  jury,  thoug-h 
plaintiff  without  knowledge  of  the  distance 
testified  that  the  delivery  would  have  been 
impossible — Texas  &  P.  Ry.  Co.  v.  Hall  (Tex. 
Civ.  App.)  72  S.  W.  1052.  Where  the  terms 
and  nature  of  a  contract  for  delivery  are  in 
controversy,  and  there  is  evidence  of  dam- 
ages resulting  from  lack  of  food  and  water, 
the  case  must  be  submitted  to  a  jury — Wal- 
dron   v.    Fargo,    170   N.    Y.    130. 

67.  In  an  action  for  penalty  in  failure  to 
feed  and  water  stock  in  transit  it  was  held 
that  such  notice  not  being  contractual  was 
important  only  as  evidence — Texas  &  P.  Ry. 
Co.  V.  Peters  (Tex.  Civ.  App.)   71  S.  "W.  70. 

68.  Brauer  v.  Navigation  Co.,  66  App.  Div. 
(N.  Y.)   605. 

69.  Bowring  v.  Railway  Co.,  90  Mo.  App. 
324. 

70.  Southern  Ry.  Co.  v.  Horner,  115  Ga. 
381. 

71.  Normile  v.  Navigation  Co.,  41  Or.  177, 
69   Pac.    928. 

72.  Louisville  &  N.  R.  Co.  v.  Wathen,  23 
Ky.  L.  R.   2128,   66   S.  W.   714. 

73.  To  show  injury  on  defendant's  line — 
Western  Md.  R.  Co.  v.  Landis,  95  Md.  749. 
To  show  negligence  in  making  a  flying- 
switch — Chicago  &  N.  W.  Ry.  Co.  v.  Stock 
Farm,  194  111.  9.  To  show  that  two  rail- 
roads formed  a  continuous  line,  or  that  at 
the  time  of  the  receipt  of  cattle,  defend- 
ant knew  that  the  other  road  had  issued 
bills  of  lading  thereon — Robt.  C.  TV^hite  L. 
S.  Commission  v.  Railroad  Co.,  87  IMo.  App. 
330.    To  show  negligence  in  rounding  curves 

Louisville  &  N.  R.  Co.  v.  Harned.  23  Ky.  L. 

R  1651.  66  S.  W.  25.  To  show  defective  car — 
•W'illiams  v.  Railway  Co.  (Ga.)  43  S.  E.  980. 
To  show  that  pneumonia  resulted  from  injur- 


ies received — Louisville  &  N.  R.  Co.  v.  Wa- 
then. 23  Ky.  L.  R.  2128,  66  S.  V^^  714.  To 
show  diligence  in  transportation  of  cattle — 
Sloop  v.  Wabash  R.  Co.,  93  Mo.  App.  605. 
To  warrant  the  recovery  of  a  penalty  for 
failure  to  feed  and  water  cattle  in  transit 
— Texas  &  P.  Ry.  Co.  v.  Peters  (Tex.  Civ. 
App.)  71  S.  W.  70.  Plaintiff's  evidence  that 
the  contract  -was  for  through'  shipment  may 
be  sufficient  to  warrant  the  submission  to 
the  jury  of  the  terms  of  the  contract — 
Faulkner  v.  Railway  Co.  (Mo.  App.)  73  S.  W. 
927.  Previous  similar  contracts  carried  out 
by  defendant  warrant  the  submission  of  an 
agent's  authority  to  make  such  contracts  to 
the  jury — Faulkner  v.  Railway  Co.  (Mo. 
App.)  73  S.  W.  927.  It  is  sufficient  to  raise  a 
presumption  of  negligence  to  sliow  that  24 
hours  -tvas  consumed  in  transportation,  when 
it  usually  required  but  from  13  to  15  and 
there  were  delays  of  from  2  to  4  hours  at 
various  places — Anderson  v.  Rail-way  Co.,  93 
Mo.  App.  677. 

74.  Evidence  tending  to  prove  negligence 
in  operating  a  train  and  that  loss  was  oc- 
casioned thereby,  is  sufficient  to  send  the 
case  to  the  jury — Bowring  v.  Railway  Co.,  90 
Mo.   App.    324. 

75.  Instruction  not  erroneous  in  allowing 
damages  to  be  assessed  against  two  carriers 
which  in  fact  occurred  on  the  lines  of  three 
— Texas  &  P.  Ry.  Co.  v.  Hall  (Tex.  Civ.  App.) 
72  S.  W.  1052.  Not  erroneous  as  tending  to 
overweigh  the  injuries  on  the  line  of  other 
connecting  carriers — Texas  &  P.  Ry.  Co.  v. 
Hall  (Tex.  Civ.  App.)  72  S.  W.  1052.  Not 
failing  to  limit  the  value  of  the  horses  to 
the  time  immediately  before  and  after  the 
injury,  or  assuming  that  plaintiff  had  been 
put  to  expense  to  cure  them — Chicago  &  N. 
W.  Ry.  Co.  V.  Stock  Farm,  194  111.  9.  Not 
erroneous  as  allowing  a  recovery  while  the 
cattle  -were  in  possession  of  the  company 
operating  the  road  from  defendant's  terminus 
to  the  final  destination — Chicago.  R.  I.  &  T. 
Ry.  Co.  V.  Henderson  (Tex.  Civ.  App.)  73 
S.  W.  36.  As  to  the  measure  of  damages — 
Southern  Pac.  Co.  v.  Arnett  (C.  C.  A.)  Ill 
Fed.  849.  The  issue  of  increased  damages 
by  shipment  over  a  longer  route  than  that 
selected  by  the  shipper  cannot  be  submitted 
in  the  absence  of  evidence  of  increased  dam- 


§  21 


DAMAGES. 


447 


its  possession.'"  Where  the  only  evidence  is  of  delay  in  furnishing  transporta- 
tion, instructions  based  on  an  entire  refusal  to  furnish  should  not  be  given.''''  Un- 
der an  allegation  that  pens  were  insufficient  to  hold  cattle,  an  instruction  as  to 
liability  where  the  pens  were  injured  by  derailed  car  of  another  road  is  irrelevant.''® 
AVhere  the  facts  pleaded  authorize  a  recovery  on  the  carrier's  common-law  liabil- 
ity, instructions  should  not  confine  the  right  to  recover  on  the  existence  of  a  par- 
ticular contract,  two  contracts  being  pleaded.''^ 

Judgment. — There  may  be  a  judgment  over  against  the  connecting  carrier  in 
favor  of  the  initial  carrier  who  has  contracted  to  ship  cattle  over  its  own  and 
a  connecting  line,  the  connecting  carrier  being  primarily  liable.*"  Judgment 
against  one  of  two  connecting  carriers  sued  jointly  for  the  full  amount  demanded 
is  error,  where  neither  carrier  was  to  be  responsible  beyond  the  line  of  its  own 
road,  and  there  was  evidence  of  negligence  on  the  part  of  the  carrier  against 
whom  judgment  was  not  rendered.®^ 

§  21.  Damages. — It  is  intended  to  treat  here  but  a  few  particular  questions 
of  damages.*^  The  measure  of  damages  is  the  difference  in  the  market  price  be- 
tween the  time  at  which  the  cattle  were  delivered  and  when  they  should  have  been 
delivered,*^  or  the  difference  in  market  value  of  the  stock  in  the  condition  in  which 
they  would  have  arrived  but  for  the  negligence  of  the  carrier,  and  their  value  in 
the  condition  in  which  they  did  arrive.®*  Necessary  deterioration  must  be  disre- 
garded.®^ The  instructions  should  limit  the  carrier's  liability  to  such  injuries  as 
result  from  its  breach  of  contract  or  negligence  and  exempt  it  from  ordinary 
shrinkage  and  necessary  incident  damage,  and  from  inherent  weakness  or  vice  of 
the  cattle.®^  For  cattle  killed  in  transit,  the  measure  is  the  market  value  at  the 
point  of  destination.®^  '\\T^iere  cattle  die  in  transit,  the  amount  of  damages  is 
to  be  reduced  by  the  sum  received  by  the  owner  on  their  sale.®® 

In  order  that  commission  for  the  purchase  of  cattle  may  be  recovered  on 
breach  of  a  contract  to  furnish  space  on  a  steamer,  it  must  be  shown  that  the 
defendant  was  informed  of  the  contract  therefor.®*  The  amount  of  a  feed  bill  may 
be  recovered  if  the  cattle  were  fed  contrary  to  the  shipper's  direction,  or  if  they 
were  not  in  fact  fed.***  Interest  may  be  recovered  from  the  time  compensation 
was  demanded.®^  There  is  no  presumption  of  pregnancy  augmenting  damages  for 
death  of  a  bitch  which  had  been  but  recently  lined.*^ 


ages — Gulf,    C.    &    S.    F.   Ry.    Co.   v.    Irvine    & 
Woods    (Tex.    Civ.    App.)    73    S.    W.    540. 

76.  International  &  G.  N.  R.  Co.  v.  Young 
(Tex.   Civ.    App.)    72    S.   W.    68. 

77.  Illinois  Cent.  R.  Co.  v.  Bundy,  97  111. 
App.   202. 

78.  Houston  &  T.  C.  Ry.  Co.  v.  Trammell 
(Tex.   Civ.   App.)    68   S.   W.   716. 

79.  Bt.  Louis  S.  W.  Ry.  Co.  v.  Barnes 
(Tex.  Civ.  App.)    72  S.  W.  1041. 

SO.  Texas  &  P.  Ry.  Co.  v.  McCarty  (Tex. 
Civ.   App.)    69   S.   W.    229. 

81.  Gulf,  C.  &  S.  P.  Ry.  Co.  v.  Lee  (Tex. 
Civ.   App.)    65   S.  W.   54. 

82.  See    generally   article    "Damages." 

83.  Perry  v.  Railway  Co.,  89  Mo.  App.  49. 
First  available  market  day  after  delivery  is 
to  be  taken — Sloop  v.  Railroad  Co.,  93  Mo. 
App.  605.  Verdict  held  conjectural  and  ex- 
cessive— Helm  V.  Railroad  Co.  (Mo.  App.)  72 
S.  W.  148. 

84.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Patton,   104  111.  App.   550. 

85.  Evidence  of  the  market  value  of  cat- 
tle had  they  been  delivered  in  the  same 
condition    as    shipped    is    inadmissible   where 


it  is  not  disputed  that  there  was  bound  to 
be  some  deterioration  in  value — Galveston, 
H.  &  S.  A.  Ry.  Co.  v.  Botts  (Tex.  Civ.  App.) 
70  S.  W.  113. 

86.  Louisville  &  N.  R.  Co.  v.  Wathen,  23 
Ky.  L.  R.  2128,  66  S.  W.  714.  Erroneous  to 
instruct  that  the  defendant  is  liable  for  all 
injuries  received  on  its  line  though  they 
might  not  have  developed  or  been  discovered 
while  the  cattle  were  in  defendant's  custody 
—Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Butler  (Tex, 
Civ.  App.)    73   S.  W.   84. 

87.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Butler 
(Tex.  Civ.  App.)   73  S.  W.  84. 

88.  Amount  received  on  sale  of  cattle  dy- 
ing  in  transit  should  be  deducted — Gulf,  C, 
&  S.  F.  Ry.  Co.  v.  Butler  (Tex.  Civ.  App.)  73 
S.  W.   84. 

89.  An  instruction  to  such  effect  must  be 

given    where    the    evidence    is    conflicting 

Brauer  v.  Navigation  Co.,  66  App.  Div.  (N 
T.)  605. 

90.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Botta 
(Tex.   Civ.   App.)    70  S.   W.   113. 

91.  Missouri,  K.  &  T.  Ry.  Co.  v.  Trupkett 
(C.  C.  A.)   104  Fed.   728. 


448 


CARRIERS  OF  PASSENGERS. 


§  22 


Connecting  carriers. — The  market  price  at  the  ultimate  destination  is  the 
proper  basis  for  estimation  of  damages  against  a  connecting  carrier,  though  it  con- 
tracts for  transportation  over  its  own  line  only.^^  Where  two  connecting  carriers  are 
negligent,  verdict  for  the  entire  amount  of  damages  asked  against  one  may  be  re- 
garded as  excessive.**  Though  a  statute  provides  for  apportionment  of  damages 
between  several  defendants  who  are  connecting  carriers,  if  recovered  against  more 
than  one  carrier,  it  is  not  necessary  that  the  evidence  show  how  much  damage  is 
done  on  each  line.^^ 

Part  4.  Carriage  of  passengers.  §  22.  Duty  to  undertalce  and  provide  car- 
riage. Who  are  passengers. — An  express  contract  is  not  required  to  make  a  person 
a  passenger.**  The  intention  to  pay  fare  is  necessary,*^  though  not  actual  pay- 
ment or  possession  of  ticket  or  pass;*^  so  one  who  has  paid  no  fare,  traveling  in 
char<^e  of  a  race  horse,  cannot  be  regarded  as  a  trespasser,  if  fare  has  not  been 
demanded.**  A  child  riding  free  in  charge  of  an  older  person  paying  fare  is  a 
passenger,^  as  is  a  railroad  employe  traveling  free  though  on  private  business,^  but 
one  intending  to  ride  free  under  an  arrangement  with  the  conductor  or  brakeman, 
knowing  that  he  has  no  authority  to  give  free  transportation,  is  a  trespasser.* 
One  traveling  on  a  drover's  pass  in  charge  of  cattle  is  a  passenger  for  hire.* 

When  relation  begins. — It  is  not  necessary  that  a  person  touch  a  street  car 
that  he  may  be  a  passenger.^  The  intending  passenger  must  not  be  at  the  station 
at  an  unreasonable  time  before  the  departure  of  the  train,®  but  one  at  a  station  at 
train  time,  the  time  being  late  and  the  waiting  room  closed,  may  be  rightfully  on 
the  platform  as  a  passenger.'^  One  having  a  ticket,  approaching  a  train  over  the 
carrier's  premises  and  under  the  direction  of  its  agent,  is  a  passenger,  but  must 
not  take  a  short  cut  if  too  late  to  approach  a  train  properly;  hence,  one  is  not  re- 
garded as  a  passenger  who  passes  in  front  of  an  incoming  train  in  order  to  take  pas- 
sage on  another.^  One  who  has  been  carried  to  a  platform  between  elevated  tracks 
and  is  waiting  for  a  train  is  a  passenger  entitled  to  more  than  ordinary  care.* 

When  relation  ceases. — The  passenger  must  have  a  reasonable  opportuivity  to 
leave  the  car  at  the  end  of  his  journey;^*  so  one  stepping  from  a  platform  of  the 
train,  it  having  started  without  giving  him  sufficient  time  to  alight,  is  still  a  pas- 


92.  American  Exp.  Co.  v.  Bradford  (Miss.) 
83  So.   843. 

93.  Missouri,  K.  &  T.  Ry.  Co.  v.  Truskett 
(C.  C.  A.)  104  Fed.  728;  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Houghton  (Tex.  Civ.  App.)  68  S.  W. 
718. 

94.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Lee  (Tex. 
Civ.   App.)    65   S.   "W.   54. 

9.'.  Gen.  L.  1899,  p.  214,  c.  125 — Texas  & 
P.  Ry.  Co.  V.  Cushny  (Tex.  Civ.  App.)  64  S. 
W.    795. 

96.  One  attempting  in  a  proper  manner 
to  enter  a  street  car  becomes  a  passenger — 
Kane    v.    Railway   Co.,    100    111.    App.    181. 

97.  A  passenger  is  defined  to  be  one  -who 
enters  the  carrier's  vehicle  with  the  inten- 
tion of  paying  the  usual  fare  or  with  a 
ticket  or  pass  entitling  him  to  ride — Holt  v. 
Railroad  Co.,   87  Mo.  App.    203. 

98.  Simmons  v.  Railroad  Co.,  41  Or.  151, 
69    Pac.    440. 

99.  Alabama  &  V.  R.  Co.  v.  Beardsley,  79 
Miss.    417. 

1.  Rawlingg  v.  R.  Co.  (Mo.  App.)  71  S. 
W.   534. 

2.  Simmons  v.  Railroad  Co.,  41  Or.  151, 
69  Pac.  440. 

3.  Purple  v.  R.  Co.  (C.  C.  A.)  114  Fed.  123. 
67   L.   R.   A.  700.    Boy  of  17  paid  a  brakeman 


money  to  be  carried  to  a  certain  point  and 
obeyed  instructions  to  ride  on  the  platform 
on  the  baggage  car,  get  off  at  all  stops  and 
keep  out  of  sight — Mendenhall  v.  Railway 
Co.   (Kan.)    71  Pac.   846. 

4.  Pennsylvania  Co.  v.  Greso,  102  111.  App. 
252. 

5.  Where  person  walking  along  a  plat- 
form to  take  a  seat  on  the  car,  falls,  he  is 
entitled  to  the  care  due  to  the  passenger 
relation — Haselton  v.  St.  Ry.  Co.,  71  N.  H. 
589. 

6.  Ky.  St.  §  784,  requires  stations  to  be  open 
30  minutes  before  leaving  time  of  trains,  and 
it  was  held  that  the  carrier  was  not  liable  to 
a  person  assaulted  in  its  station  three  hours 
before  time  for  the  train  ■which  she  intended 
taking — Illinois  Cent.  R.  Co.  v.  Laloge,  24  Ky. 
L.  R.  693,  696,  69  S.  "W.  795,  1118. 

7.  Plaintiff  while  Oiree  feet  farther  away 
from  the  track  than  the  corner  of  the  station, 
was  struck  by  a  piece  of  coal  from  a  passing 
train — Louisville  &  N.  R.  Co.  v.  Reynolds. 
24  Ky.  L.  R.  1402.  71  S.  W.  516. 

S.  Chicago  &  N.  W.  Ry.  Co.  v.  "Weeks,  99- 
111.  App.  518. 

9.  Lake  St.  El.  R.  Co.  v.  Burgess,  200  IlL 
628. 

10.  Chicago  Terminal  Transfer  R.  Co.  v> 
Schmelling,  99  111.  App.  577. 


§  23 


CONTRACTS    AND    TICKETS. 


449 


senger/^  as  is  one  who  is  descending  from  a  street  car.^^  Qne  leaving  a  car  before 
his  journey's  end  at  a  regular  station  does  not  thereby  cease  to  be  a  passenger, 
and  he  may  still  be  within  a  statutory  provision  as  to  care  toward  persons  "^eing 
transported,"  though  the  train  is  still,  if  he  has  left  the  car  at  the  express  or 
implied  invitation  of  the  carrier  for  necessary  purposes  incident  to  his  journey.''^ 
The  relation  exists  until  he  has  left  the  station  or  has  had  a  reasonable  time  for 
so  doing,"  but  the  carrier  is  not  liable  to  a  person  as  a  passenger  who,  instead  of 
taking  an  exit  provided,  climbs  over  a  locked  gate  in  the  opposite  direction  and 
gets  upon  a  track.^^ 

Persons  on  other  than  passenger  trains. — Where  there  is  no  rule  allowing 
freight  trains  to  carry  passengers,  one  thereon  is  presumed  to  be  a  trespasser,^*' 
but  persons  boarding  such  trains,  without  knowledge  that  carriage  of  passengers 
is  prohibited,  may  rely  on  the  apparent  authority  of  the  conductor  to  allow  them 
to  ride  and  thus  become  passengers,^^  otherwise  if  they  know,  or  with  diligence 
may  know,  of  the  rule.^^  The  rule  is  similar  as  to  persons  on  a  special  excursion 
train,^®  A  person  who,  without  notice  that  it  will  not  stop,  boards  a  train  which 
sometimes  stops  at  his  destination,  is  not  a  trespasser,  unless  he  has  failed  to 
comply  with  the  conductor's  directions  to  leave  at  a  station  prior  to  his  des- 
tination or  go  to  one  beyond.^"  One  from  whom  a  conductor  on  a  construction 
train  has  accepted  a  ticket  is  a  passenger.^^  One  riding  on  a  hand  car  at  the  in- 
vitation of  a  section  foreman  is  not  a  passenger,^^  nor  is  an  engine  wiper  riding 
on  an  engine.^*  Persons  in  wrong  coach,  though  rightfully  on  the  train,  are  pas- 
sengers toward  whom  the  carrier  is  charged  with  at  least  ordinary  care.^* 

§  23.  Contracts  and  tickets.  The  contract  in  general.-^ — A  presumption  of 
assent  to  the  conditions  of  a  ticket  arises  from  the  fact  that  a  person  of  ordinary 
intelligence  signs  it.^®  Wliere  a  carrier  accepts  freight  from  a  connecting  carrier 
and  transports  it  on  a  through  way  bill  for  a  proportion  of  the  freight  rate,  it  is 


11.  Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co.  v. 
Gray,  28  Ind.  App.  588. 

12.  The  conductor  pushed  him  off  while  he 
was  descending:  and  at  the  same  time  called  a 
policeman  to  arrest  him.  Held  that  the  com- 
pany was  liable  if  the  arrest  was  wrongful — 
Grayson  v.  St.  Louis  Transit  Co.  (Mo.  App.) 
71  S.  W.  730. 

13.  One  leaving  a  train  at  a  siding  to  get 
a  drink  of  water  who  is  killed  while  attempt- 
ing to  pass  in  front  of  a  train  on  an  inter- 
vening track,  is  not  a  passenger  (construing 
Comp.  St.  c.  72,  art.  1.  §  3) — Chicago,  R.  I.  & 
P.  Ry.  Co.  V.  Sattler  (Neb.)  90  N.  W.  649,  57  L. 
R.  A.   890. 

14.  Houston  &  T.  C.  R.  Co.  v.  Batchler 
(Tex.  Civ.  App.)  73  S.  "W.  981.  It  cannot  be 
said  as  a  matter  of  law  that  one  who  has 
alighted  from  a  train  and  is  standing  in  a 
space  provided  by  the  company  for  alighted 
passengers  between  the  railroad  tracks  is  not 
still  a  passenger — Chicago  Terminal  Transfer 
R.  Co.  V.  Schmelling,  197  111.  619. 

15.  Chicago,  B.  &  Q.  R.  Co.  v.  Harrison, 
100  111.  App.   211. 

16.  Purple  V.  Union  Pac.  R.  Co.,  51  C.  C.  A. 
564,  114  Fed.  123,  57  L.  R.  A.  700. 

17.  Person  riding  on  an  extra  freight 
which  he  has  boarded  in  good  faith,  though 
passengers  were  allowed  only  on  regular 
freights.  The  extra  was  in  all  appearance 
similar  to  a  regular  freight — Simmons  v.  Ore- 
gon R.  Co.,   41  Or.  151,  69  Pac.   440,  1022. 

18.  Purple  V.  Union  Pac.  R.  Co.,  51  C.  C. 
A.  564;  57  L.  R.  A.  700. 

Current  Law — 29. 


19.  Fitzgibbon  v.  Chicago  &  N.  W.  Ry.  Co. 

(Iowa)  93  N.  W.  276. 

20.  Baldwin  v.  Grand  Trunk  R.  Co.,  128 
Mich.  417,  8  Detroit  Leg.  N.  706. 

21.  Plaintiff  had  ridden  before  on  the  train 
and  had  no  knowledge  that  an  official  permit 
was  required  to  allow  passengers  to  be  car- 
ried thereon — Spence  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  117  Iowa,  1. 

22.  Rathbone  v.  Oregon  R.  Co.,  40  Or.  225, 
66  Pac.  909. 

23.  Though  the  company  has  knowledge 
of  the  habitual  violation  of  its  rules  against 
employees  riding  on  engines — Streets  v. 
Grand  Trunk  Ry.  Co.,  76  App.  Div.  (N.  T.) 
480. 

24.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Shelton 
(Tex.  Civ.  App.)  69  S.  W.  653. 

25.  "I.  G.  Ry.  special  excursion  ticket. 
Going  coupon.  One  first  class  passage  from 
Austin,  Texas,  to  San  Antonio,  Texas,  rate 
sold,  $1.50,"  stamped  with  the  Austin  date 
stamp,  entitles  the  holder  prima  facie  to 
transportation  from  Austin  to  San  Antonio — 
International  &  G.  N.  R.  Co.  v.  Ing  (Tex.  Civ. 
App.)    68  S.  W.  722. 

26.  It  need  not  have  been  read  before  or 
after  signing  or  its  conditions  called  to  his 
attention  to  render  binding  provisions  requir- 
ing an  excursion  ticket  to  be  signed  by  the 
agent  at  the  point  of  destination  before  it 
should  be  good  for  return  passage — Daniels 
v.  Florida  Cent.  &  P.  R.  Co.,  62  S.  C.  1. 


450 


CARRIERS    OF    PASSENGERS. 


§  23 


bound  by  an  agreement  made  a  part  of  the  original  contract  by  the  initial  carrier, 
that  the  shipper  should  have  free  return  transportation  over  the  connecting  line." 

Discrimination. — A  carrier  by  rail  cannot  lawfully  discriminate  in  the  rates 
of  passenger  fares  between  passengers  under  the  same  conditions  and  circum- 
stances.^^ Use  of  an  excursion  ticket  sold  at  a  reduced  rate  may  be  limited  to 
particular  trains.-® 

Statutory  regulation  of  fare.^^ — A  statute  providing  that  street  car  companies 
shall  not  charge  more  than  five  cents  for  a  ride  does  not  apply  to  a  road  which 
such  a  company  leased  from  another  company  not  incorporated  under  the  act.'^ 
Where  the  same  statute  in  separate  sections  provides  a  penalty  for  overcharges  in 
fare  by  railroad  and  by  street  railroad  companies,  a  defense  provided  by  one  section 
is  applicable  to  the  other.^^  If,  after  a  refusal  to  accept  a  transfer  and  a  demand 
of  fare,  before  the  passenger  leaves  the  car,  the  conductor  offers  to  return  the 
fare  and  accept  the  transfer,  it  is  shown  that  the  overcharge  is  not  due  to  gross  negli- 
gence within  a  statute  requiring  the  furnishing  of  transfers.^'  One  who,  under 
a  misunderstanding,  boards  a  car  returning  from  rather  than  going  to  his  destina- 
tion must  pay  two  fares  if  he  continue  on  the  car  until  it  resumes  its  return  trip.'* 

Mileage  hools. — Where  mileage  books  entitling  the  holder  to  privileges  ac- 
companying the  highest  class  ticket  issued  by  the  corporation  are  required  by 
statute,  issuance  of  such  books  cannot  be  conditional  on  use  only  for  journeys 
wholly  within  the  state.'^  A  new  corporation  resulting  from  the  reorganization 
of  a  former  corporation  is  subject  to  the  provisions  of  an  act  concerning  mileage 
books,  which  is  unconstitutional  as  to  corporations  organized  before  its  passage.'® 
Such  a  statute  will  be  presumed  to  apply  when  it  is  admitted  that  at  a  previous 
date  the  defendant  carrier  was  a  domestic  railroad.''' 

Through  contracts}^ — A  mere  statement  by  an  agent  as  to  the  time  a  passen- 
ger will  reach  his  destination  does  not  constitute  a  contract  making  the  carrier  a 
through  carrier  or  binding  it  to  carry  him  to  his  destination  within  such  time," 
nor  does  the  fact  that  a  railroad  sells  a  ticket  to  a  point  of  connection  with  a 
steamship  company  and  also  an  order  for  a  steamship  ticket  to  a  further  point 
render  it  liable  for  delay  beyond  its  line.*" 


27.  If  the  shipper  was  to  receive  return 
transportation  on  condition  that  he  present 
to  defendant's  agent  a  transportation  request 
Issued  with  the  contract  for  a  return  pass, 
the  fact  that  the  plaintiff  did  not  present  the 
form  of  request  furnished  is  immaterial  if  he 
presented  the  contract  itself,  his  identity 
was  unquestioned  and  no  objection  to  the 
form  of  the  request  made,  and  the  ag-ent  re- 
ceived the  contract,  stamped  it,  and  returned 
It  saying  that  it  would  be  all  right  and  on 
ejection  for  failure  to  present  the  return 
pass  or  pay  fare,  he  could  recover  for 
breach  of  contract  without  paying  his  fare — 
Texas  &  P.  Ry.  Co.  v.  Lynch  (Tex.  Civ.  App.) 
73  S.  W.  65. 

28.  Phillips  V.  Southern  Ry.  Co.,  114  Ga, 
284. 

29.  England  v.  International  &  G.  N.  R. 
Co.    (Tex.  Civ.  App.)   73   S.  W.   24. 

30.  Rev.  St.  §  3374,  providing  a  penalty  for 
the  exaction  of  a  passenger  fare  "exceeding 
three  cents  per  mile  for  a  distance  of  more 
than  eight  miles,"  does  not  apply  until  the 
ninth  mile  is  reached,  since  it  will  not  be  as- 
sumed that  the  legislature  intended  to  take 
account  of  fractions  of  a  mile^-Cleveland,  C, 
C.  &  St.  L.  Ry.  Co.  v.  "^'ells,   65   Ohio   St.   313. 

31.  L.  18S4,  c.  252 — McXulty  v.  Brooklyn 
Heights  R.  Co.,  36  Misc.    (N.   T.)    402. 


32.  Construing  Laws  1890,  c.  565,  §§  39.  105 
— Tullis  v.  Brooklyn  Heights  R.  Co.,  71  App. 
Div.    (N.   Y.)    494. 

33.  Tullis  v.  Brooklyn  Heights  R.  Co.,  7r 
App.  Div.   (N.  Y.)   494. 

34.  McGarry  v.  Holyoke  St.  Ry.  Co.,  182 
Mass.   123. 

35.  Such  a  stipulation  held  to  mean  that 
the  book  is  acceptable  for  such  part  only  of 
a  journey  as  is  within  the  state — L.  1895,  c. 
1027 — Horton  v.  Erie  R.  Co.,  65  App.  Div.  (N. 
Y.)    587. 

36.  A  railroad  corporation  reorganized  un- 
der Laws  1892,  c.  688,  Is  subject  to  mileage 
book  act.  Laws  1895,  c.  1027 — Minor  v.  Erie 
R.  Co.,  171  N.  Y.  566. 

37.  L  1895,  c.  1027 — Horton  v.  Erie  R.  Co., 
65  App.  Div.   (N.  Y.)  587. 

38.  Evidence  held  insufficient  to  show  lia- 
bility of  Pa.  R.  Co.,  for  a  breach  of  a  special 
contract  of  carriage — Tyler  v.  Pennsvlvania 
R.  Co.,  18  App.  D.  C.  31. 

39.  Statement  that  plaintiff  would  reach 
Dawson  City  before  the  close  of  navigation, 
does  not  bind  the  carrier  to  transport  plain- 
tiff to  Dawson  City  before  such  time,  it  being 
no  part  of  the  consideration — Dresser  v.  Can- 
adian Pac.  Ry.  Co.,  116  Fed.   281. 

40.  Railroad  sold  a  ticket  from  Chicago  to 
Seattle  and  an  order  for  steamship  tranppor- 


§  23 


CONTRACTS    AND    TICKETS. 


451 


Where  a  company  receives  a  proportion  of  the  price  of  tickets  sold  b}''  another 
company,  the  ticket  agent  of  the  latter  company  is  the  agent  of  the  former,  so  that 
each  is  liable  for  his  acts  in  failing  to  issue  a  ticket  to  the  proper  destination." 

Regulation  of  sale  of  ticl^ets. — Statutes  restricting  the  sale  of  railroad  tickets 
to  authorized  agents  of  the  carrier  are  not  valid  regulations  of  the  railroad  com- 
pany's business,  whether  regarded  as  regulations  of  a  corporation  created  by  the 
legislature  or  as  a  police  regulation.*^  A  ticket  broker  may  be  liable  for  his  acts 
in  inducing  the  purchaser  of  a  nontransferable  special  ticket  to  sell  a  return  por- 
tion for  the  purpose  of  having  it  used  by  another.*'  A  carrier  cannot  deny  the 
authority  of  a  clerk  where  it  acts  on  a  contract  with  knowledge  that  it  has  been 
made  by  the  clerk  assuming  to  act  as  general  passenger  agent.*"*  A  statute  pro- 
liibiting  others  than  agents  from  selling  railroad  tickets,  but  stating  that  it  is 
not  applicable  to  persons  holding  tickets  not  having  printed  on  their  face  that  it 
is  an  offense  to  transfer  such  ticket  for  consideration,  does  not  render  a  ticket 
without  such  notice  nonassignable.*' 

Who  may  use  tickets. — A  railroad  ticket  is  transferable  in  the  absence  of  con- 
tract or  constitutional  or  statutory  provisions.*®  Use  of  a  nontransferable  ticket 
by  a  transferee  is  actionable.*'^  Under  statutes  providing  a  penalty  for  an  attempt 
to  use  a  pass  which  by  conditions  expressed  thereon  is  not  transferable,  an  attempt 
to  use  a  pass  which  has  no  condition  except  that  it  will  be  taken  up  if  presented 
by  any  person  other  than  the  one  to  whom  it  was  issued  does  not  render  a  person 
liable  to  the  penalty.** 

Rights  on  loss  of  ticket. — Issuance  of  a  duplicate  in  place  of  a  lost  commuta- 
tion ticket  cannot  be  compelled  where  the  ticket  provides  that  the  company  shall 
not  be  required  to  refund  if  it  is  not  used,  and  the  holder  cannot  on  its  loss  re- 
cover the  amount  paid  by  him  or  damages  for  failure  to  transport  him  without 
paying  fare,  neither  has  he  a  right  to  transportation  except  on  payment  of  the  reg- 
ular fare.*® 

Round  trip  tickets. — If  round  trip  tickets  provide  that  they  must  be  stamped 
on  the  day  that  they  are  to  be  used  for  return,  the  carrier  is  bound  to  have  present 
a  person  authorized  so  to  stamp  the  ticket  a  reasonable  time  before  the  arrival  of 
trains  on  which  it  is  good  for  passage.""  A  round  trip  ticket  good  for  one  day 
is  available  on  the  only  train  returning,  though  it  may  not  be  scheduled  to 
stop  at  the  station  of  purchase.''^ 

Limited  tickets. — A  ticket  may  be  good  for  a  return  journey  commenced 
though  not  completed  before  the  final  limit."  The  ticket  where  signed  by  the 
purchaser  and  bearing  punch  mark  showing  date  of  its  expiration,  is  conclusive 


tation  from  there  to  Dawson  City,  which  was 
stated  to  be  of  a  certain  value.  The  rail- 
road's agent  at  Seattle  purchased  a  regular 
contract  ticket  from  the  steamship  company 
for  the  sum  stated — Dresser  v.  Canadian  Pac. 
Ry.  Co..  116  Fed.  281. 

41.  Kansas  City,  M.  &  B.  R.  Co.  v.  Poster, 
134  Ala.  244. 

42.  Laws  1901,  c.  639 — People  v.  Caldwell, 
168  N.  Y.   671. 

43.  Delaware,  L.  &  W.  R.  Co.  v.  Frank, 
110  Fed.  689. 

44.  Southern  Ry.  Co.  v.  Marshall,  23  Ky. 
L.  R.  813,  64  S.  W.  418. 

45.  Batts'  Ann.  Civ.  St.,  title  94,  c.  12a — 
International  &  G.  N.  R.  Co.  v.  Ing  (Tex.  Civ. 
App.)   68  S.  W.  722. 

46.  International  &  G.  N.  R.  Co.  v.  Ing 
(Tex.  Civ.  App.)    68  S.  W.   722. 

4T.     Ticket    issued    at    a    reduced    rate    In 


consideration  of  persons  agreeing  that  it 
should  not  be  transferred — Delaware,  L.  & 
W.  R.  Co.  v.  Frank,  110  Fed.  689. 

48.  Act  June  10,  1897 — Allardt  v.  People, 
197  111.   501. 

49.  Southern  Ry.  Co.  v.  De  Saussure  (Ga.) 
42  S.  E.  479. 

50.  Southern  Ry.  Co.  v.  "Wood,  114  Ga.  140, 
55  L.  R.  A.  536. 

51.  Illinois  Cent.  R.  Co.  v.  Harris  (Miss.) 
32    So.    309. 

.52.  Rutherford  v.  St.  Louis  S.  W.  Ry.  Co. 
(Tex.  Civ.  App.)  67  S.  W.  161.  One  who  be- 
gins the  return  journey  before  midnight  of 
the  final  day,  but  owing  to  a  delay  misses  a 
connectinn,  may  recover  for  his  ejection  from 
the  next  train  of  the  connecting  road  on  the 
ground  that  the  ticket  has  expired — Morn- 
ingstar  v.  Louisville  &  N.  R.  Co..  135  Ala 
251. 


452 


CARRIERS    OF   PASSENGERS.  §   23 


evidence  to  the  conductor  as  to  when  it  expires."  The  passenger  is  not  bound 
by  limitations  printed  on  a  general  ticket,  where  his  attention  is  not  called  to  them 
and  he  is  not  charged  with  notice  thereof.''* 

Stop  over  privileges  do  not  exist  in  the  absence  of  agreement,  though  the 
ticket  is  unlimited."  A  passenger  is  entitled  to  ride  from  a  point  at  which  he  has 
rightfully  made  a  stop  over,  though  he  has  no  written  evidence  of  his  right  to  pas- 
sage, it  having  been  taken  up  by  a  previous  conductor,  before  the  stop  over,  over 
the  passenger's  objection.^* 

Redemption  of  ticTcets. — One  who  has  purchased  tickets  for  the  purpose  onl\ 
of  having  them  redeemed  is  not  entitled  to  a  statutory  penalty  on  failure  of  re- 
demption. Under  statutes  providing  a  penalty  on  failure  to  redeem  where  a  de- 
mand for  redemption  has  been  made,  a  second  demand  of  the  price  at  the  end 
of  the  time  within  which  the  redemption  money  should  have  been  paid  is  not 
necessary  to  put  the  carrier  in  default.  If  the  agent  knows  that  the  plaintiff  has 
tickets  in  his  possession  for  the  purpose  of  asking  that  they  be  redeemed  and  de- 
clines redemption,  a  formal  tender  of  the  tickets  is  not  required.  Wliere  notice 
of  the  time  for  redemption  is  not  posted  as  required  by  the  statute,  demand  may 
1)6  made  within  the  period  of  the  general  statutes  of  limitations." 

Actions  for  failure  to  carry  or  to  honor  tickets.^^ — An  allegation  that  a  con- 
ductor refused  to  accept  a  fare  offered  does  not  amount  to  a  statement  that  there 
was  a  refusal  to  carry  plaintiff.^^  Where  the  pleadings  and  evidence  show  reliance 
on  statements  of  an  agent  that  a  train  will  stop  at  a  certain  place,  an  instruction 
permitting  recovery  on  the  ticket  as  evidencing  the  contract  without  regard  to 
the  agent's  statements  is  erroneous.®"  Where  a  passenger  pays  a  fare  under 
threat  of  expulsion,  the  question  of  expulsion  should  not  be  submitted  to  the 
jury  in  an  action  for  damages.'^  Breach  of  contract  of  carriage,  no  special  dam- 
age being  laid,  entitles  the  passenger  only  to  recover  the  costs  of  transportation  in 
the  most  feasible,  reasonable  way.®^  Where  an  action  is  for  the  refusal  of  an  ex- 
cursion ticket  on  the  ground  that  it  had  expired,  the  difference  between  the  ex- 
cursion and  the  regular  rate  is  immaterial.®'  On  breach  of  contract  to  hold  the 
train,  the  measure  of  damages  is  the  compensation  for  lost  time,  personal  incon- 
venience and  necessitated  expenses,  but  there  can  be  no  recovery  for  pain  of  body  or 
of  mind.'* 

Performance  of  contract  of  carriage. — An  ice  blockade  is  not  an  act  of  God 
excusing  breach  of  a  contract  to  carry  to  a  particular  port,  and  where  a  ticket  pro- 
vides that  in  case  it  is  impossible  to  land  a  passenger  safely  at  his  port  of  destina- 
tion he  may  be  landed  at  the  next  port,  the  carrier  is  not  entitled  to  land  him  at  a 


53.  Rolfs  V.  Atchison,  T.  &  S.  F.  Ry.  Co. 
(Kan.)   71  Pac.  526. 

54.  Pull  fare  was  paid  and  it  was  held 
that  the  posting  of  notices  In  the  waiting 
rooms  and  ticket  offices  was  not  sufficient  to 
charge  him  with  notice  of  the  limitations — 
Norman  v.  Southern  Ry.,  65  S.  C.  517. 

55.  Louisville  &  N.  R.  Co.  v.  Klyman,  108 
Tenn.  304.  56  L.  R.  A.  769. 

56.  Nothing  on  the  face  of  the  ticket  In- 
consistent with  the  stop  over  privilege  or  any 
rule  or  knowledge  thereof  by  the  passenger 
inconsistent  with  such  privilege  was  shown 
— Scofield  V.  Pennsylvania  Co.  (C.  C.  A.)  112 
Fed.  855. 

57.  Acts  28th  Genl.  Assem.  c.  71,  5  1 — Jol- 
ley  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (Iowa)  93 
N.  W.  555. 

58.  Evidence   held   Insufficient   to   warrant 


a  peremptory  instruction  to  find  a  promise  by 
a  railroad  agent,  that  a  train  should  stop 
where  plaintiff  desired  to  alight — Interna- 
tional &  G.  N.  R.  Co.  v.  Kilgo  (Tex.  Civ.  App.) 
71   S.  W.  556. 

59.  Dierlg  v.  South  Covington  &  C.  St. 
Ry.  Co.,  24  Ky.  L.  R.  1825,  72  S.  W.  355. 

60.  International  &  G.  N.  R.  Co.  v.  Kilgo 
(Tex.  Civ.  App.)   71  S.  W.  556. 

61.  Myers  v.  Southern  R.,  64  S.  C.  514. 

62.  Rose  V.  King,  76  App.  Dlv.   (N.  Y.)  308. 

63.  Rutherford  v.  St.  Louis  S.  W.  Ry.  Co. 
(Tex.  Civ.  App.)  67  S.  W.  161. 

64.  $250  excessive,  where  pecuniary  loss  is 
only  $22.50  and  delay  for  one  night  and  plain- 
tiff was  able  to  secure  a  bed  and  go  to  sleep 
— Southern  Ry.  Co.  v.  Marshall,  23  Ky.  L.  R. 
813.  64  S.  W.  418. 


§  25 


EXTRA   CHARGES.      EJECTION   OF    PASSENGERS. 


453 


previous  port,  though  the  port  of  destination  is  ice  bound  and  inaccessible."  Where 
the  agreement  is  to  land  a  passenger  at  a  point  as  near  the  mouth  of  a  certain 
river  as  the  landing  may  be  made  in  safety,  the  determination  of  the  landing  is 
to  be  made  by  the  master  acting  in  good  faith.*^ 

Actions  for  failure  to  perform. — A  release  from  one  of  the  workmen  is  not  a 
defense  to  an  action  for  breach  of  contract  in  failing  to  land  plaintiff  and  his 
workmen  at  their  destination.  Where  defendant  testifies  that  its  reason  for  land- 
ing plaintiff  short  of  his  destination  was  information  that  the  port  was  inaccessible 
on  accoimt  of  ice,  it  is  immaterial  from  whom  such  information  was  received.®^ 
The  costs  incident  to  reaching  the  proper  destination  are  elements  of  damage.®' 
To  establish  the  wages  lost  by  failure  to  land  plaintiff  and  his  employees  at  the 
port  of  destination,  evidence  of  wages  at  the  point  where  landed  is  admissible,  if 
they  were  the  same  as  at  the  point  of  destination."*  In  the  absence  of  notice  of 
special  necessity,  a  person  delayed  may  recover  only  the  value  of  his  time  during 
the  delay. ■'°  Exemplary  damages  cannot  be  recovered  for  delay,  though  the  causes 
thereof  were  known  to  the  agent  at  the  time  the  ticket  was  purchased.''* 

§  24.  Extra  charges  where  ticlcets  are  not  procured,  and  other  regulations. — 
Before  a  greater  charge  may  be  exacted  of  persons  paying  fare  on  trains,  a  pas- 
senger must  be  afforded  a  reasonable  opportunity  to  purchase  a  ticket  before  enter- 
ing a  train.''^  A  street  railway  company's  rule  against  employees  in  uniform,  but 
off  duty,  sitting  on  front  seats  of  open  cars,  is  reasonable,  though  applied  to  an 
employee  paying  fare,'^^  but  does  not  justify  a  forcible  ejection  by  an  inspector 
who  has  authority  to  make  rules  governing  employees.''*  The  fact  that  an  agent 
sells  a  ticket  for  passage  on  a  freight  train,  without  informing  the  passenger  that 
he  must  sign  a  special  permit,  does  not  abrogate  a  rule  requiring  the  permit,  since 
it  is  reasonable,  and  the  passenger  is  bound  to  take  notice  of  reasonable  rules.''" 
Persistent  violation  of  rules  regulating  conduct  at  stations  may  prevent  a  passen- 
ger from  complaining  of  the  use  of  unnecessary  force  in  compelling  him  to  obey 
them.''*     The  reasonableness  of  regulations  is  a  question  of  law.''^ 

§  25,  Ejection  of  passengers.  Persons  without  ticket  or  refusing  to  pay  fare. 
— Where  a  passenger  having  stop  over  privileges  is  compelled  to  surrender  the 
ticket-coupon  evidencing  his  right  to  passage  for  the  remainder  of  the  journey,  his 
lack  of  written  evidence  of  right  to  transportation  confers  no  authority  on  the  con- 
ductor of  a  later  train  to  eject  him,  and  if  he  attempt  to  ride  without  a  ticket,  he 
is  not  guilty  of  contributory  negligence,  nor  is  his  right  of  action  rendered  com- 
plete by  the  fact  that  the  coupon  ticket  is  taken  up  so  that  he  has  no  right  of 


05.  Bnllock  V.  White  Star  S.  S.  Co.,  30 
Wash.  448,  70  Pac.  1106. 

66.  Torrey  v.  Kelly  (C.  C.  A.)  121  Fed. 
S42. 

67.  Bullock  V.  White  Star  S.  S.  Co.,  30 
Wash.  448,   70  Pac.  1106. 

68.  Such  as  the  cost  of  an  outfit  and  sup- 
plies to  travel  to  the  point  of  destination, 
living-  expenses  together  with  the  expenses 
of  loss  of  time  and  wages — Bullock  v.  White 
Star  S.  S.  Co.,  30  Wash.  448,  70  Pac.  1106. 

60.  Bullock  V.  White  Star  S.  S.  Co.,  30 
Wash.  448,  70  Pac.  1106. 

70.  Lawyer  detained  may  recover  value 
based  on  average  earnings  during  at  least 
twelve  months  preceding — Cooley  v.  Pennsyl- 
vania R.  Co.,   40  Misc.    (N.  Y.)   239. 

71.  Illinois  Cent.  R.  Co.  v.  Pearson,  80 
Miss.   26. 

72.  Phillips    v.    Southern   Ry.   Co.,    114   Ga. 


284.     Fare  for  points  within  the  state — Web- 
er V.  Southern  Ry.  Co.,  65  S.  c!  356. 

73.  Rowe  V.  Brooklyn  Heights  R.  Co.,  71 
App.  Div.  (N.  T.)  474. 

74.  Rowe  V.  Brooklyn  Heights  R.  Co.,  80 
App.  Div.    (N.  T.)    477. 

75.  Ellis  V.  Houston,  E.  &  W.  T.  Ry.  Co. 
(Tex.  Clv.  App.)   70  S.  W.  114. 

76.  The  persistent  violation  of  regulation 
forbidding  passengers  from  going  to  sleep  in 
the  waiting  rooms  or  lying  down  on  the 
benches  causing  defendant's  servant  to  lose 
his  temper — Central  of  Georgia  Ry.  Co.  v. 
Motes  (Ga.)  43  S.  E.  990. 

77.  A  rule  forbidding  passengers  lying 
down  or  going  to  sleep  in  w^aiting  rooms  Is 
not  as  a  matter  of  law  unreasonable — Cen- 
tral of  Georgia  Ry.  Co.  v.  Motes  (Ga.)  43  S. 
E.  990.  Regulations  as  to  excess  rates  and 
rebate  checks — Weber  v.  Southern  Ry.  Co..  65 
S.  C.  356. 


454 


CARRIERS    OF   PASSENGERS. 


25 


action  for  the  subsequent  expulsion^'  Where  a  passenger  is  so  drunk  that  he 
does  not  consciously  refuse  to  produce  a  ticket,  though  he  pays  no  attention  to  a  re- 
quest to  do  so,  the  carrier  may  be  liable  for  ejecting  him  at  night." 

Persons  refusing  to  pay  extra  charges. — An  extra  charge  cannot  be  exacted 
of  one  paying  cash  fare  where  the  ticket  office  is  not  kept  open  up  to  the  arrival 
of  the  train,*"  or  where  a  ticket  is  not  procured  because  of  a  statement  of  the 
agent  that  he  could  not  sell  a  ticket  and  the  passenger  would  have  to  pay  fare  on 
the  train.** 

Persons  with  defective  ticTcets. — Where  a  coupon  book  provides  that  coupons 
must  be  detached  by  the  conductor,  one  who  presents  a  coupon  from  his  wife's 
book  and  refuses  to  produce  the  book  cannot  recover  for  an  expulsion  though  the 
conductor  did  not  demand  a  cash  fare  or  plaintiff  tender  pa3Tnent  except  the 
coupon.*'^  Where  a  return  ticket  provides  that  it  shall  be  stamped  by  the  carrier's 
agent,  if  the  passenger,  on  the  day  he  desires  to  return,  is  unable,  by  the  exercise 
of  due  diligence,  to  find  an  authorized  agent  for  such  purpose,  the  carrier  is  liable 
for  his  expulsion  from  the  train  after  he  has  explained  the  facts,  and  the  passenger 
does  not  waive  his  right  to  recover  by  the  fact  that  he  has  the  ticket  signed  and 
stamped  and  uses  it  for  return  passage  on  another  train.^^ 

Interchangeable  mileage. — Where  a  station  is  out  of  exchange  tickets  and  a 
passenger  boards  a  train  and  presents  a  mileage  book,  but  the  conductor  refuses 
to  issue  an  exchange  ticket  and  ejects  him  at  a  station  where  the  ticket  office  is 
closed,  and  refuses  to  allow  him  to  re-enter  the  train,  though  he  calls  the  con- 
ductor's attention  to  such  fact,  there  is  a  breach  of  contract,  the  mileage  ticket 
providing  that  conductors  may  issue  exchange  tickets  where  the  train  is  boarded 
at  stations  where  there  is  no  ticket  office  or  where  the  office  is  closed,  and  in  such 
a  case  plaintiff  is  not  required  to  pay  his  fare  and  rely  on  its  recovery  by  suit,  but 
may  stand  on  his  rights  under  the  contract.** 

Persons  with  defective  transfers. — Where  there  is  an  agreement  between  two 
street  railroads  to  transfer  from  one  to  the  other,  one  company  is  liable  for  the  mistake 
of  the  employee  of  the  other  in  punching  a  transfer,*'  so  a  passenger  who  is  given 
a  transfer  to  a  wrong  line  may  recover  if  ejected  after  he  has  explained  the  matter 
to  the  conductor  on  the  line  over  which  he  wishes  to  travel.*^  Reasonable  explana- 
tions must  be  accepted.*^  One  receiving  an  erroneous  transfer  is  not  contribu- 
torily  negligent  in  case  he  does  not  understand  it,  and  good  faith  of  the  conductor, 
or  mistake  in  the  way  the  transfer  is  punched,  will  not  relieve  the  carrier  from 
liability  for  his  ejection.** 

Right  to  tender  fare  after  refusal. — A  passenger  may,  after  refusal  to  pay  fare, 
tender  it  as  he  sees  the  conductor  stop  the  train  to  put  him  off  and  the  conductor 


78.  Scofleld  V.  Pennsylvania  Co.  (C.  C.  A.) 
112  Fed.  855. 

79.  Passenger  was  visibly  Intoxicated 
when  he  g-ot  on  the  car  and  had  a  coupon 
ticket  to  his  destination  the  first  coupon  of 
which  the  conductor  collected — Clark  v.  Har- 
risburg  Traction  Co.,  20  Pa.  Super.  Ct.  76. 

SO.  Laws  1857,  c.  228,  providing  that  the 
ticket  office  must  be  kept  open  for  an  hour 
prior  to  the  departure  of  each  passenger 
train — Monnier  v.  New  York  Cent.  &  H.  R.  R. 
Co.,  70  App.  Div.  (N.  T.)   405. 

81.  Phillips  V.  Southern  Ry.  Co.,  114  Ga. 
284. 

82.  United  Rys.  &  Electric  Co.  v.  Hardesty, 
94  Md.  661. 


83.  Southern  Ry.  Co.  v.  "Wood,  114  Ga.  140, 
55  L.  R.  A.  53G. 

84.  Pennsylvania  Co.  v.  Lenhart,  120  Fed. 
61. 

85.  Jacobs  v.  Third  Ave.  R.  Co.,  71  App. 
Div.  199.  10  N.  T.  Ann.  Cas.  462. 

86.  The  passenger  was  under  no  obligation 
to  make  a  technical  examination  of  the 
transfer  slip — Lawshe  v.  Tacorna  Ry.  &  Pow- 
er Co.,  29  V^^ash.  681,  70  Pac.  118. 

87.  Indianapolis  St.  Ry.  Co.  v.  Wilson 
(Ind.)   66  N.  E.   950. 

88.  Passenger  was  ejected  on  account  of 
improper  punching  of  transfer  and  arrested 
at  the  request  of  the  conductor — Jacobs  v. 
Third  Ave.  R.  Co.,  71  App.  Div.  199,  10  N.  T. 
Ann.  Cas.  462. 


§25 


EJECTION    OF    PASSENGERS. 


455 


must  accept  it/®  though  it  has  also  been  held  that  an  offer  to  pay  fare  during  the 
process  of  ejection  will  not  render  the  continuance  of  the  expulsion  tortious."" 

Passenger  on  wrong  train. — A  passenger  cannot  recover  where  he  is  ejected 
because  his  ticket  is  not  good  on  a  particular  train,  of  which  fact  he  has  knowledge,*^ 
nor  can  one  who  attempts  to  ride  on  a  freight  train  without  a  necessary  permit.**"^ 
A  person  who  has  been  sold  a  ticket  for  passage  on  a  particular  train,  and  assured 
by  the  agent  that  the  train  will  stop  at  his  destination,  may  recover  if  ejected 
on  the  sole  ground  that  the  train  does  not  make  such  stop,  unless  he  has  knowledge 
that  the  agent  had  no  power  to  so  inform  him  and  that  the  conductor  is  prohibited 
from  stopping  there.®^  He  may  rely  on  the  representations  of  the  local  ticket 
agent.®*  A  ticket  entitling  the  purchaser  to  ride  on  a  freight  train,  and  contain- 
ing a  provision  that  the  company  shall  not  be  liable  for  damages  to  person  or  bag- 
gage, cannot  be  revoked  at  any  time  by  reason  of  the  fact  that  the  provision  is  not 
binding  on  the  passenger.®"* 

Passenger  misbehaving. — A  railroad  company  may,  without  unnecessary  force, 
eject  a  boisterous,  violent,  and  intoxicated  passenger.®® 

Place  of  ejection. — If  the  place  of  ejection  for  nonpayment  of  fare  is  provided 
by  statute,  the  carrier,  to  relieve  itself  from  liability,  must  prove  that  the  terms 
thereof  were  followed.®^  In  some  states,  a  carrier  is  liable  for  putting  a  passen- 
ger off  at  a  dangerous  place  only  in  the  event  that  he  is  put  off  against  his  will  of 
in  such  a  mental  condition  as  to  be  incapable  of  having  a  will.®^  The  question  of 
the  dangerous  character  of  the  place  of  ejection  is  controlled  by  the  fitness  of  the 
place  which  the  passenger  safely  reaches.®® 

Manner  of  ejection. — Where  a  passenger  repeatedly  refuses  to  pay  fare,  the  con- 
ductor may  use  necessary  force  in  putting  him  off.^  There  may  be  a  forcible 
ejection  though  the  passenger  is  not  touched,'^  but  mere  rude  and  not  abusive  lan- 
guage used  by  a  conductor  does  not  render  the  carrier  liable  in  damages.^  A 
boisterous  and  intoxicated  passenger  may  be  expelled  but  not  assaulted,*  and  his 
drunkenness  does  not  relieve  the  company  from  liability  to  exercise  care.^     One, 


89.  In  thi3  case  plaintiff  sought  to  get  a 
ticket  before  going  on  the  train  and  also  a 
credit  slip  necessary  for  rebate  on  purchase 
of  ticket  and  had  refused  to  pay  fare  unless 
the  conductor  would  give  such  credit  slip — 
Holt  V.  Hannibal  &  St.  J.  R.  Co.,  87  Mo.  App. 
203. 

90.  There  had  been  a  persistent  refusal  to 
pay  the  legal  fare  and  physical  force  was  be- 
ing employed  to  eject  plaintiff  at  the  regular 
station — Behr  v.  Brie  R.  Co.,  69  App.  Div.  (N. 
Y.)   416. 

91.  The  ticket  was  an  excursion  ticket 
sold  at  a  reduced  rate  and  reciting  that  it 
was  not  good  on  a  particular  train,  and  the 
ejection  was  accompanied  by  no  unnecessary 
force — England  v.  International  &  G.  N.  R. 
Co.  (Tex.  Civ.  App.)  73  S.  W.  24. 

92.  One  knowing  the  necessity  of  a  per- 
mit cannot  rely  on  the  ticket  agent's  state- 
ment that  such  permit  may  be  obtained  on 
the  train  if  he  know  the  statement  is  unau- 
thorized— Houston,  E.  &  W.  T.  Ry.  Co.  v. 
Stell  (Tex.  Civ.  App.)    67  S.  W.  537. 

93.  Atkinson  v.  Southern  Ry.  Co.,  114  Ga. 
146,  55  L.  R.  A.  223. 

94.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Lit- 
tle (Kan.)   71  Pac.  820. 

95.  This  theory  was  advanced  In  an  action 
for  wrongful  exclusion  from  a  freight  train 
— Central  of  Georgia  Ry.  Co.  y.  Almand  (Ga.) 
4t  S.  E.  67. 


96.  Chesapeake  &  O.  Ry.  Co.  v.  Saulsberry, 
23  Ky.  L.  R.  2341,  66  S.  W.  1051. 

97.  Rev.  St.  1899,  §  1074.  Allowing  a  pas- 
senger to  be  ejected  without  unnecessary 
force  at  any  usual  stopping  place  or  near  any 
dwelling  house — Holt  v.  Hannibal  &  St.  J.  R. 
Co.,  87  Mo.  App.  203. 

98.  So  held  construing  an  Instruction — 
Bohannon's  Adm'x  v.  Southern  Ry.  Co.,  23 
Ky.  L.  R.  1390.  65  S.  W.  169. 

99.  It  Is  not  negligence  to  eject  an  intoxi- 
cated passenger,  and  leave  him  25  or  30 
feet  from  the  track  In  a  public  street  talking 
to  a  public  officer — Gaukler  v.  Detroit.  G.  H. 
&  M.  Ry.  Co.  (Mich.)  9  Detroit  Leg.  N.  215, 
90  N.  W.  660. 

1.  McGarry  v.  Holyoke  St.  Ry.  Co.,  182 
Mass.  123.  On  removal  of  an  intoxicated  pas- 
senger for  nonpayment  of  fare  the  conductor 
must  act  In  a  prudent  manner  with  the  use 
of  no  more  force  than  is  necessary — Central 
Ry.  Co.  V.  Mackey,  103  111.  App.  15. 

2.  As  where  the  conductor  follows  the 
passenger  on  the  platform  and  threatens  to 
throw  him  off  If  he  does  not  alight — Indiana, 
D.  &  W.  Ry.  Co.  V.  Ditto,  158  Ind.  669. 

3.  Daniels  v.  Florida  Cent.  &  P.  R.  Co.,  62 
S.  C.  1. 

4.  St.  Louis  S.  "W.  Ry.  Co.  v.  Johnson  (Tex. 
Civ.  App.)   68  S.  W.  58. 

5.  An  Instruction  that  if  plaintiff  was  in 
such  a  state  of  intoxication  as  to  render  him 


456 


CARRIERS    OF   PASSENGERS. 


§  25 


with  a  ticket,  boarding  a  freight  train,  which  does  not  carry  passengers  may  re- 
cover if  compelled  to  jump  from  it  in  the  dark  while  it  is  in  motion.* 

Injuries  caused  by  passenger's  conduct.'' — One  who  causes  added  indignities  to 
be  shown  him  for  the  purpose  of  increasing  damages  cannot  recover  therefor.* 
Where  a  passenger  is  injured  while  running  beside  a  train  after  his  ejection,  with 
the  intention  of  getting  on  again,  the  carrier  is  not  boimd  to  stop  for  the  purpose 
of  finding  out  if  he  is  hurt.®  Where  a  person  on  the  steps  refuses  to  either  enter  or 
leave  the  car,  the  conductor  may  use  such  reasonable  force  as  may  be  necessary  to 
make  him  do  one  thing  or  the  other.^" 

Actions  for  ejection. — Eecovery  for  ejection  on  refusal  to  accept  a  transfer  may 
be  by  an  action  in  tort  as  well  as  on  contract  unless  plaintiff's  fault  or  negligence 
aided  in  leading  up  to  the  expulsion.*^  An  action  of  assault  and  battery  may  be 
maintained  for  ejection  on  refusal  to  pay  an  extra  sum  wrongfully  demanded.^- 

Pleading}^ — The  complaint  must  negative  a  statute  authorizing  the  charge 
of  an  increased  fare.^*  An  allegation  that,  after  tender  of  legal  fare,  passage  wa>; 
refused,  willfully,  wrongfully,  unlawfully,  and  intentionally,  sets  up  a  cause  of 
action  for  punitive  damages.^'  Where  rules  prohibiting  the  sale  of  tickets  such 
as  was  presented  by  plaintiff  are  pleaded,  disuse  or  waiver  of  the  rules  must  be  also 
pleaded.^'  It  cannot  be  shown  that  plaintiff  was  drunk  at  the  time  of  his  ejection 
under  a  mere  denial  of  wrongful  ejection,  the  complaint  alleging  that  plaintiff 
was  put  off  without  being  allowed  to  pay  his  fare.^^  Defendant's  opening  statement 
is  not  restrictive  as  to  the  issues  involved.^® 

Burden  of  proof. — In  the  absence  of  a  plea  of  non  est  factum  plaintiff  need 
not  prove  that  defendant  executed  and  issued  the  ticket  relied  on.^*  The  burden 
is  on  the  carrier  to  establish  conditions  in  a  ticket  relied  on  as  a  defense.-"  De- 
fendant has  the  burden  of  proof  if  it  admit  that  plaintiff  is  entitled  to  actual  dam- 


ages." 


Admissibility  and  sufficiency  of  evidence. 
in  the  notes.^* 


-Particular  decisions  are  grouped 


mentally  Incapable  of  ordinary  care  and  cau- 
tion for  hlg  own  personal  safety,  or  if  by 
reason  of  such  state  of  intoxication  he  con- 
tributed to  the  injuries  complained  of,  he 
could  not  recover.  Is  erroneous — Central  Ry. 
Co.  V.  Mackey,  103  111.  App.  15. 

6.  Indiana,  D.  &  W.  Ry.  Co.  v.  Ditto,  158 
Ind.  669. 

7.  The  carrier  Is  entitled  to  have  an  in- 
struction state  that  if  a  passenger  refuses  to 
comply  with  a  request  to  leave  the  train 
after  refusing  to  pay  fare  and  resists  and  an 
injury  happen,  the  company  was  not  respon- 
sible— McCullen  v.  New  York  &  N.  S.  Ry. 
Co.,  68  App.  Dlv.  (N.  Y.)  269. 

8.  Patterson  v.  Southern  Pac.  Co.  (Tex. 
Civ.  App.)  66  S.  "W.  308. 

9.  Chesapeake  &  O.  Ry.  Co.  v.  Saulsberry 
23  Ky.  L..   R.   2341,  66  S.  W.  1051. 

10.  Brace  v.  St.  Paul  City  Ry.  Co.,  87  Minn. 
292. 

11.  The  transfer  was  incorrectly  punched 
— Perrlne  v.  North  Jersey  St.  Ry.  Co.  (N.  J. 
Law)   54  Atl.  799. 

12.  Monnier  v.  New  York  Cent.  &  H.  R.  R. 
Co.,   70  App.   Div.    (N.   Y.)    405. 

13.  Pleas  held  bad  in  action  for  ejection  as 
not  denying  complaint  or  proper  as  confes- 
sion and  avoidance — Nashville,  C.  &  St.  L. 
Ry.  v.  Bates.  133  Ala.  447.  Sufficiency  of  plea 
to  place  in  issue  the  condition  of  a  coin  ten- 
dered as  fare — Mobile  St.  Ry.  Co.  v.  Watters, 
135  Ala.  227. 


14.  2  Burns'  Rev.  St.  1901,  §  5458c.  et  seq. 
— Smith  V.  Indianapolis  St.  Ry.  Co.,  158  Ind. 
425. 

15.  Kibler  v.  Southern  Ry.,  64  S.  C.  242. 

16.  Complaint  alleged  offer  of  an  unlim- 
ited ticket  and  defendant  pleaded  a  rule  that 
tickets  should  be  good  for  continuous  pass- 
age beginning  on  the  date  of  sale,  knowledge 
of  such  rule  by  plaintiff,  and  notice  indorsed 
on  the  ticket — Louisville  &  N.  R.  Co.  v.  Biz- 
zell,  131  Ala.  429. 

17.  Raynor  v.  Wilmington  S.  C.  R.  Co.,  129 
N.  C.  195. 

18.  If  plaintiff  allege  that  ejection  is  with- 
out fault  or  negligence  on  his  part  and  the 
allegation  is  denied  by  answer,  an  issue 
raised  by  proof  of  plaintiflf's  misconduct 
should  be  submitted  though  the  only  de- 
fense alleged  in  defendant's  opening  state- 
ment was  that  plaintiff  was  not  a  passenger 
— Bough  V.  Metropolitan  St.  Ry.  Co.,  115  N. 
Y.   St.   Rep.   771. 

19.  International  &  G.  N.  R.  Co.  v.  Ing 
(Tex.  Civ.  App.)   68  S.  W.  722. 

20.  Daniels  v.  Florida  Cent.  &  P.  R.  Co., 
62  S.  C.  1. 

21.  Civ.  Code  Pr.  §  526 — Louisville  &  N.  R. 
Co.  V.  Champion,  24  Ky.  L.  R.  87,  68  S.  W. 
143. 

22.  Admissibility.  Where  the  conductor 
claimed  that  a  ticket  was  out  of  date,  it  may 
be  shown  as  a  defense  that  the  ticket  was 
good  for  only  one  continuous  passage — Louis- 


§  25 


EJECTION    OF    PASSENGERS. 


457 


Questions  of  laiv  and  fact. — The  question  of  whether  the  conductor's  act  was 
the  proximate  cause  of  an  injur}^  may  be  for  the  jury;-^  so,  also,  the  question  of 
where  plaintiff  was  ejected,^*  or  what  kind  of  a  ticket  plaintiff  purchased." 

Instructions."^ — An  instruction  that  plaintiff  may  recover  if  a  fare  tendered 
was  legal  tender  ignores  the  issue  of  whether  the  conductor  could,  from  the  condi- 
tion of  the  coin,  determine  such  fact.^^  A^Hiere  the  evidence  was  that  the  ticket 
was  indorsed  good  for  a  continuous  passage  beginning  on  the  day  of  sale,  an  in- 
struction to  the  effect  that  there  was  nothing  on  the  ticket  to  show  the  purchaser 
that  he  could  not  use  it  when  he  was  disposed  to  do  so,  is  properly  refused.^*  Where 
the  gist  of  the  action  is  in  the  negligent  expulsion  of  an  intoxicated  passenger  in 


vlUe  &  N.  R.  Co.  V.  Klyman,  108  Tenn.  304,  56 
L.  R.  A.  769.  Evidence  that  other  passengers 
complained  of  plaintiff's  language  before  his 
ejection  may  be  admitted  where  plaintiff's 
allegation  is  that  he  was  without  fault  and 
it  is  denied  by  answer — Bough  v.  Metropoli- 
tan St.  Ry.  Co.,  116  N.  T.  St.  Rep.  771.  Where 
it  Is  alleged  that  the  conductor  on  an  offer 
of  a  third  person  to  pay  plaintiff's  fare  used 
violent  language  and  declared  that  plaintiff 
should  not  ride,  evidence  of  the  offer  is  ad- 
missible— Weber  v.  Southern  Ry.  Co.,  65  S.  C. 
356.  Posted  notices  limiting  the  validity  of 
tickets  are  not  admissible  unless  it  is  shown 
that  a  passenger  has  read  them  or  knows  of 
their  contents.  Action  for  ejection  on  the 
ground  that  a  ticket  has  expired — Georgia  R. 
Co.  v.  Baldoni,  115  Ga.  1013.  Evidence  that 
plaintiff  was  drunk  more  than  four  hours 
after  ejection  Is  not  admissible  to  corroborate 
evidence  that  he  was  drunk  when  ejected — 
Raynor  v.  Wilmington  S.  C.  R.  Co..  129  N.  C. 
195.  The  custom  of  conductors  on  payment 
of  cash  fares,  to  issue  credit  slips  on  con- 
tracts for  rebate  may  be  shown  where  pas- 
senger demanded  such  a  slip — Holt  v.  Hanni- 
bal &  St.  J.  R.  Co.,  87  Mo.  App.  203.  In  an 
action  for  being  wantonly  pushed  from  a  car 
platform,  evidence  of  the  conductor's  general 
character  and  conduct  toward  lady  passen- 
gers is  inadmissible,  where  no  attempt  has 
been  made  to  impeach  him — Berger  v.  Chi- 
cago &  A.  Ry.  Co.  (Mo.  App.)  71  S.  W.  102. 
Questions  relating  to  money  subsequently  ob- 
tained to  pay  fare  are  inadmissible,  where 
the  ground  of  action  was  the  ejection  of  a 
passenger  on  the  ground  that  a  fare  tendered 
was  not  legal  tender — Mobile  St.  Ry.  Co.  v. 
Watters,  135  Ala.  227.  Where  defendant  at- 
tempts to  prove  that  plaintiff  had  been  rid- 
ing in  another  car  than  the  one  she  alleges 
she  was  pushed  from,  plaintiff,  in  rebuttal, 
may  show  that  she  was  not  seen  in  such 
other  car — Berger  v.  Chicago  &  A.  Ry.  Co. 
(Mo.  App.)  71  S.  W.  102.  Where  a  passenger 
is  expelled  from  a  train  for  refusal  to  pay 
fare  after  having  presented  a  mileage  ticket 
without  an  exchange  ticket  which  he  had 
been  unable  to  procure,  evidence  of  conver- 
sations and  transactions  between  the  passen- 
ger and  a  ticket  agent,  or  the  conductor  of  a 
succeeding  train  after  the  ejection,  is  not 
admissible — Pennsylvania  Co.  v.  Lenhart,  120 
Fed.  61.  Evidence  of  negotiations  for  a  set- 
tlement of  a  claim  for  wrongful  ejection  by 
a  conductor  is  not  admissible  to  show  a  rati- 
fication of  the  conductor's  action — Pennsyl- 
vania Co.  V.  Lenhart,  120  Fed.  61.  Ground 
for  cancellation  of  a  contract  of  carriage  not 


discovered  until  after  the  ejection  and  nol 
urged  at  the  time  will  not  constitute  a  de- 
fense, as  where  a  passenger  was  put  off  on 
the  ground  that  his  ticket  had  expired  and 
subsequent  discovery  that  his  trunk  contain- 
ed merchandise  instead  of  baggage — Georgia 
R.  Co.  V.  Baldoni,  115  Ga.  1013.  Siimciencyi 
Injuries  from  being  wantonly  pushed  from 
car — Berger  v.  Chicago  &  A.  Ry.  Co.  (Mo. 
App.)  71  S.  W.  102.  Identity  of  a  conductor 
furnishing  a  transfer — Foley  v.  Metropolitan 
St.  Ry.  Co.,  114  N.  T.  St.  Rep.  249.  Ejection 
from  a  moving  train — International  &  G.  N. 
R.  Co.  v.  Bohannon  (Tex.  Civ.  App.)  71  S.  W. 
776.  To  demand  submission  to  jury  of  the 
question  whether  plaintiff's  delay,  until  an 
assault  was  made  on  him,  before  paying  an 
extra  charge  for  bridge  toll,  was  for  the  pur- 
pose of  increasing  damages — Patterson  v. 
Southern  Pac.  Co.  (Tex.  Civ.  App.)  66  S.  W. 
308.  Plaintiff's  evidence  that  she  had  pur- 
chased a  round  trip  ticket  is  sufficient  to  go 
to  the  jury.  Plaintiff  testified  as  to  the  regu- 
lar fare  from  her  starting  point  to  her  des- 
tination and  on  the  occasion  in  question  she 
bought  a  round  trip  ticket  for  a  less  amount 
— Daniels  v.  Florida  Cent.  &  P.  R.  Co.,  62  S. 
C.  1. 

23.  As  where  one  who  has  boarded  a 
freight  train  to  inquire  concerning  the  ex- 
pected arrival  of  his  wife,  refuses  to  leave 
the  train  while  it  is  in  motion  and  on  refus- 
ing to  pay  fare  is  locked  out  on  the  rear 
platform — Great  Northern  Ry.  Co.  v.  Bruyere, 
114  Fed.  540. 

24.  Evidence  examined  and  held  to  be  suf- 
ficiently contradictory — Gaukler  v.  Detroit, 
G.  H.  &  M.  Ry.  Co.   (Mich.)   90  N.  W.  660. 

25.  Plaintiff  having  lost  her  ticket,  sec- 
ondary evidence  of  its  contents  was  intro- 
duced in  evidence  by  the  agent  as  to  what 
sort  of  tickets  were  sold  for  the  excursion 
in  question — Daniels  v.  Florida  Cent.  &  P.  R. 
Co.,  62  S.  C.  1. 

26.  Instruction  held  erroneous  as  with- 
drawing right  to  exact  statutory  minimum 
charge  in  addition  to  rebate  charge — Kibler 
V.  Southern  Ry.,  62  S.  C.  252. 

27.  In  an  action  for  ejectment  of  a  pas- 
senger for  non-payment  of  fare,  an  instruc- 
tion that  a  dime  introduced  in  evidence  was 
of  legal  tender  quality  is  warranted  by  the 
evidence  of  defendant's  conductor,  who  while 
denying  that  coin  Introduced  was  the  one 
offered  for  plaintiff's  fare,  testified  that  such 
coin  was  a  good,  visibly  lettered  dime — Mo- 
bile St.  Ry.  Co.  V.  Watters,  135  Ala.  227. 

28.  Louisville  &  N.  R.  Co.  v.  Bizzell,  131 
Ala.  429. 


458 


CARRIERS    OF   PASSENGERS. 


§  25 


a  dangerous  place,  the  use  of  the  word  "ejectment"  in  an  instruction  does  not  re- 
quire the  jury  to  find  the  existence  of  force.-'* 

Elements  and  measure  of  damages.^° — Wliere  a  person  boarding  a  freight  train 
without  a  permit  is  put  ofE  without  force,  at  the  place  he  got  on,  he  is  not  dam- 
aged, not  being  prevented  from  making  his  journey  on  that  day  and  not  having 
demanded  the  money  paid  for  his  ticket.^^  The  carrier  is  liable  for  nominal  dam- 
ages for  failure  to  obey  a  statutory  requirement  that  trains  shall  be  stopped  before 
ejection  of  passengers,  though  the  passenger  is  not  injured.^-  Wliere  a  passenger 
is,  by  mistake,  issued  a  ticket  to  a  point  prior  to  his  destination  and  is  there  ejected, 
the  mere  cost  of  transportation  to  the  proper  destination  is  not  the  measure  of 
damages.^'  Compensatory  damages  may  be  awarded  only  for  loss  of  time,  fare  on 
another  car,  and  injury  to  feelings.**  Where  coupons  are  wrongfully  detached  by 
a  conductor  from  a  ticket  and  are  declined  by  a  subsequent  conductor,  the  amount  of 
damage  recoverable  for  ejection  is  the  fare  paid  by  plaintiff  on  the  next  car  by  which 
he  arrives  at  his  destination.*^  Where  plaintiff  sues  for  lost  time,  expenses  in- 
curred, and  punitive  damages  resulting  from  an  exclusion  from  defendant's  train, 
the  action  is  not  for  one  of  those  torts  included  by  a  statute  providing  that  where  the 
entire  injury  is  to  the  peace  or  feelings,  no  measure  of  damages  can  be  prescribed,*" 
A  carrier  may  be  liable  for  injury  to  feelings  without  physical  injury  in  a  case  of 
wrongful  expulsion.*^  Eecovery  may  be  had  for  sufferings  resulting  from  appre- 
hension of  yellow  fever,  caused  by  being  put  off  at  an  improper  destination,  the 
agent  knowing  of  the  prevalence  of  the  disease  there.*^  On  ejection,  damages  for 
humiliation  and  disgrace  may  be  recovered,  though  no  one  was  present  save  the 
conductor  and  the  brakeman.*^  They  may  be  included  as  an  element  of  damage, 
though  not  specifically  pleaded  and  though  there  is  no  direct  testimony  thereto.*^ 
Improper  conduct  is  admissible  in  mitigation.*^ 

Exemplary  and  punitive  damage.'^- — The  right  to  punitive  damages  is  for 
the  jury.**  The  carrier  is  liable  for  exemplary  damages  if  there  is  gross  wanton- 
ness or  willfully  oppressive  negligence."  Punitive  damages  cannot  be  awarded 
where  the  conductor  refuses  a  ticket  through  an  honest  mistake  and  the  passenger 
voluntarily  leaves  the  train,"  or  is  ejected.*®     Eefusal  to  honor  ticket  not  good 


29.  Bohannon's  Adm'x  v.  Southern  Ry.  Co., 
23  Ky.  L.  R.  1390.  65  S.  W.  169. 

30.  See  article  "Damages"  for  general  ques- 
tions. Where  a  conductor  has  knowledge 
that  plaintiff  has  an  injured  hand,  enhanced 
pain  therein  caused  by  forcible  ejection  may 
be  considered  as  bearing  on  damages — Texas 
&  P.  Ry.  Co.  V.  Lynch  (Tex.  Civ.  App.)  73  S. 
W.  65. 

31.  Ellis  V.  Houston,  E.  &  W.  T.  Ry.  Co. 
(Tex.  Civ.  App.)  70  S.  W.  114. 

32.  Rev.  St.  1899,  §  1074— Holt  v.  Hannibal 
&  St.  J.  R.  Co.,  87  Mo.  App.  203. 

33.  Kansas  City,  M.  &  B.  R.  Co.  v.  Foster. 
134  Ala.  244. 

34.  Jacobs  V,  Third  Ave.  R.  Co.,  71  App. 
Div.  199,   10  N.  T.  Ann.  Cas.  462. 

35.  Brown  v.  Rapid  Ry.  Co.  (Mich.)  90  N. 
W.  290. 

36.  Civ.  Code,  3907 — Central  of  Georgia  Ry. 
Co.  V.  Almand  (Ga.)  43  S.  E.  67. 

37.  Mabry  v.  City  Electric  Ry.  Co.  (Ga.) 
42  S.  E.  1025, 

38.  Kansas  City,  M.  &  B.  R.  Co.  v.  Foster, 
134  Ala.  244. 

39.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Little 
(Kan.)    71  Pac.   820. 

40.  Berger  v.  Chicago  &  A.  Ry.  Co.  (Mo. 
App.)   71  S.  "W.  102. 


41.  Bough  V.  Metropolitan  St.  Ry.  Co.,  115 
N.  Y.St.  Rep.  771. 

42.  The  jury  may  be  Instructed  on  the 
subject  of  punitive  damages,  where  one  un- 
able to  obtain  a  signature  on  his  return  trip 
ticket  boarded  a  train  without  having  It 
signed  and  stamped  and  though  he  explains 
to  the  conductor  and  offers  to  guaranty  pay- 
ment of  his  fare,  is  expelled  early  on  a  dark 
and  rainy  morning  in  a  strange  place — South- 
ern Ry.  Co.  V.  Wood,  114  Ga.  140,  55  L.  R.  A. 
536.  An  instruction  that  the  intentional  do- 
ing of  an  unlawful  act  will  be  construed  as 
malice  so  that  plaintiff  could  have  punitive 
damages  is  erroneous — Kibler  v.  Southern 
Ry.,   62  S.  C.  252. 

43.  Ejection  because  of  expiration  of  the 
time  limit  of  the  ticket — Norman  v.  Southern 
Ry.  Co..  65  S.  C.  517;  Louisville  &  N.  R.  Co.  v. 
Bizzell,  131  Ala.  429. 

44.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Lit- 
tle  (Kan.)    71  Pac.  820. 

45.  The  date  on  the  ticket  was  indistinct 
and  the  conductor  was  acting  under  a  warn- 
ing to  look  out  for  a  particular  ticket — Louis- 
ville «S:  N.  R.  Co.  V.  Champion,  24  Ky.  L.  R. 
87.  68  S.  ■V^^  143. 

46.  The  mistake  was  due  to  plaintiff  hur- 
rying the  issuing  agent — Illinois  Cent.  R.  Co. 
V.  Moore.  79  Miss.  766. 


5  26A 


LIABILITY    FOR    INJURIES. 


45Sf 


on  train  is  not  ground  for  exemplary  damages  though  the  agent  stated  that  the 
ticket  was  good  on  any  train,*^  Exemplary  damages  may  be  recovered  for  an  un- 
necessary assault.*'  Punitive  damages  may  be  awarded  where  a  conductor  speaks 
harshly  to  a  passenger  and  wantonly  pushes  her  from  a  car  platform.*®  Wliere  the 
Iiolder  of  a  limited  ticket  misses  a  connection  and  takes  the  next  train  after  the 
limit  has  expired,  if  full  fare  is  collected  after  expulsion  the  question  of  exemplary 
damages  is  for  the  jury.^"  Holdings  as  to  excessive  damages  are  grouped  in  the 
notes. ^^ 

§  26.  Liability  for  personal  injuries.  A.  General  principles.  What  law 
governs. — The  degree  of  care  required  of  a  carrier  is  governed  by  the  law  of  the 
state  in  which  the  injury  is  received.^^  A  judgment  will  be  reversed  when  it  can- 
not be  determined  as  to  how  far  it  was  governed  by  a  consideration  of  a  repealed 
statute  as  to  prima  facie  evidence  of  negligence."^' 

Degree  of  care  required. — The  degree  of  care  required  is  variously  defined  as : 
*'the  utmost  care  and  diligence,"^*  "the  strictest  diligence,'"''  "the  highest  degree  of 
care,"^^  and  as  being  liable  for  the  "slightest  negligence. "^^  From  the  reverse  stand- 
point the  carrier's  employes  are  not  bound  to  exercise  the  "utmost  human  skill, 
diligence  and  foresight,"^^  "the  highest  degree  of  care/'°^  other  than  the  highest 
degree  of  care  that  a  very  cautious  person  would  exercise  under  similar  circum- 
stances,^*' or  that  high  degree  of  care  which  would  have  been  exercised  by  very 
cautious,  prudent  and  competent  persons,®^  though  an  instruction  may  require  the 
highest  degree  of  care  where,  by  statute,  a  carrier  is  required  to  exercise  the  utmost 


47.  Yazoo  &  M.  V.  R.  Co.  v.  Rodgers,  80 
Miss.    200. 

48.  Ejection  for  nonpayment  of  fare 
thoug-h  conductor  was  notified  that  fare  was 
paid — Denison  &  S.  Ry.  Co.  v.  Randell  (Tex. 
Civ.  App.)   69  S.  W.  1013. 

49.  Berger  v.  Chicago  &  A.  Ry.  Co.  (Mo. 
App.)   71  S.  W.  102. 

50.  Myers  v.  Southern  R.,  64  S.  C.  514. 

51.  $150  Is  not  excessive  for  an  expulsion 
on  a  cold  night  where  it  was  necessary  for 
plaintiff  to  walk  about  ten  miles  and  the 
conductor  in  the  presence  of  other  passengers 
used  profane  language  towards  him — ^Gisle- 
son  V.  Minneapolis  &  St.  L.  R.  Co.,  85  Minn. 
329.  $250  for  putting  a  child  down  at  a 
wrong  station  is  excessive  where  the  child 
evidently  suffered  little  distress — Louisville  & 
N.  R.  Co.  v.  Jordan,  23  Ky.  L.  R.  1730,  66  S. 
W.  27.  $450  not  excessive,  where  plaintiff 
was  held  up  as  one  trying  to  ride  without  a 
lawful  right — Southern  Ry.  Co.  v.  Wood,  114 
Ga.  140.  55  L.  R.  A.  536.  $500  not  excessive 
where  refusal  to  pay  extra  charge  was  be- 
cause of  inability  to  secure  ticket  and  pas- 
senger w^as  with  acquaintances — Monnier  v. 
New  York  Cent.  &  H.  R.  R.  Co.,  70  App.  Div. 
(N.  Y.)  405.  $1500  is  not  excessive  for  ejec- 
tion of  a  passenger  accompanied  by  an  un- 
palliated  assault — Foley  v.  Metropolitan  St. 
Ry.  Co.,  114  N.  Y.  St.  R.  249.  $1500  not  ex- 
cessive— Texas  &  P.  Ry.  Co.  v.  Lynch  (Tex. 
Civ.  App.)   73  S.  W.   65. 

52.  Louisville  &  N.  R.  Co.  v.  Harmon,  23 
Ky.  L.  R.  871,  64  S.  W.  640. 

53.  Action  for  injuries  from  an  explosion 
of  a  steamboat  boiler  based  on  Act  Congress 
July  7.  1838,  c.  191,  §  13  (5  Stat.  305)  re- 
pealed by  Act  Congress  Feb.  28,  1871,  c.  100, 
§  71  (16  Stat.  440,  459) — Richtman  v.  Haley, 
121  Fed.  353. 

54.  Norfolk  &  W.  Ry.  Co.  v.  Tanner  (Va.) 
41    S.    E.    721;    Texas    &    P.    Ry.    Co.    v.    Gray 


rTex.  Civ.  App.)  71  S.  W.  316.  An  instruc- 
tion that  negligence  is  the  failure  to  use  the 
high  degree  of  care  that  would  be  exercised 
by  a  prudent  person  under  like  circumstan- 
ces, is  erroneous — Knauff  v.  San  Antonio 
Traction  Co.    (Tex.  Civ.  App.)    70   S.  W.   1011. 

55.  Le  Blanc  v.  Sweet,  107  La.  355. 

56.  Carrier  is  liable  for  any  negligence 
unless  the  passenger  is  contributorily  negli- 
gent— Knauss  v.  Lake  Erie  &  W.  R.  Co.,  29 
Ind.  App.  216. 

57.  Sambuck  v.  Southern  Pac.  Co.,  138  Cal. 
xix.,  71  Pac.   174. 

58.  An  instruction  to  such  effect  in  an  ac- 
tion for  an  injury  resulting  from  a  sudden 
stop  is  erroneous — Freeman  v.  Metropolitan 
St.  Ry.  Co.,  95  Mo.  App.  314. 

59.  It  is  sufficient  to  use  the  high  degree 
of  care  and  prudence  that  will  be  used  by 
very  cautious,  prudent  and  competent  per- 
sons under  like  circumstances — Williams  v. 
International  &  G.  N.  R.  Co.  (Tex.  Civ.  App.) 
67  S.  W.  1085.  Negligence  when  applied  to 
carriers  means  a  failure  in  the  performance 
of  duty  imposed  by  law  for  the  protection  of 
others  to  exercise  that  degree  of  care  which 
very  competent  and  prudent  persons  would 
usually  exercise  under  the  same  or  similar 
circumstances — St.  Louis  S.  W.  Ry.  Co.  v. 
Harrison   (Tex.  Civ.  App.)   73  S.  W.  38. 

60.  Over  an  objection  that  it  required  the 
greatest  care  which  would  have  been  exer- 
cised by  the  most  skillful  and  careful  indi- 
viduals to  be  found  in  the  class  named — St. 
Louis  S.  W.  Ry.  Co.  v.  Byers  (Tex.  Civ.  App.) 
70  S.  W.   558. 

61.  Action  for  injuries  resulting  through 
the  carriage  of  plaintiff's  wife  and  child  in 
an  unheated  car  in  cold  weather  without  wa- 
ter and  compelling  the  wife  to  stand  and 
hold  the  child — St.  Louis  S.  W.  Ry.  Co.  v. 
Campbell   (Tex.   Civ.  App.)    69  S.  W.  451. 


460 


CARRIERS    OF   PASSENGERS. 


§   26A 


care.'*  There  is  an  implied  contract  that  passengers  shall  not  be  imperiled  by 
even  the  slightest  fault  of  servants,®^  but  only  in  receiving,  keeping,  carr}-ing  and 
discharging  passengers  is  extraordinary  diligence  required.**  Carriers  of  passen- 
gers, while  not  insurers,  are  in  Illinois  held  to  the  exercise  of  the  highest  degree 
of  care,  skill  and  diligence  practically  consistent  with  the  efficient  use  of  the  mode 
of  transportation  adopted/^  the  passenger  being  in  the  exercise  of  ordinary  care.*® 
The  question  whether  a  carrier  is  bound  to  anticipate  an  unauthorized  act  of  a 
passenger  is  for  the  jury,'^  as  is  the  question  of  whether  the  omission  or  commis- 
sion of  particular  acts  is  negligence,  unless  omissions  are  made  negligence  by  law.*® 
The  burden  is  on  plaintiff  to  show  an  act  resulting  from  culpable  negligence  of  de- 
fendant, which  was  the  proximate  cause  of  the  injury;  recovery  cannot  be  had  for 
mere  accident.*® 

Street  railway  companies  may  be  required  to  exercise  the  "liighest  degree"  of 
care,^"  and  an  instruction  that  they  must  use  great  care  and  caution  with  regard  to 
their  machinery  and  appliances  does  not  impose  too  great  a  liabilit}',''^  or  "reason- 
able care"  may  be  all  that  is  required.''*  Where  the  situation  is  not  one  from  which 
grave  injury  may  be  expected,  a  street  car  company  is  not.  bound  to  exercise  the 
highest  degree  of  care  and  skill  which  human  foresight  can  provide.''^  Use  of 
electricity  or  steam  as  a  motive  power  raises  no  difference  as  to  the  degree  of  care 
required.^* 

As  to  dangers  and  perils  not  incident  to  ordinary  railway  travel,  the  carrier 
must  use  ordinary  care  and  diligence, ''°  and  must  adopt  all  reasonable  precautions 
for  the  safety  and  comfort  of  persons  who  are  at  his  station  as  passengers.'^* 

Carriage  of  passengers  on  freight  trains. — A  carrier  is  bound  to  the  highest 
degree  of  care  without  regard  to  the  vehicle  used  for  conveyance  f  the  same  care  is 
required  in  the  carriage  of  passengers  on  freight  as  on  exclusively  passenger  trains,^' 
and  the  carrier  must  exercise  all  care  available  for  a  passenger's  safety  consistent 
with  the  operation  of  the  train.''*  The  carrier  must  exercise  the  highest  degree  of 
care  in  the  operation  of  mixed  trains  consistent  with  their  use.^*     A  drover  beinsr 


62.  Civ.  Code,  §  2100 — Osgood  v.  Los  An- 
geles Traction  Co.,  137  Cal.   280,   70  Pac.   169. 

63.  Clerc  V.  Morgan's  L.  &  T.  R.  &  S.  S.  Co., 
107  La.  370. 

64.  Southern  Ry.  Co.  v.  Reeves  (Ga.)  42  S. 
E.    1015. 

65.  Pennsylvania  Co.  v.  Greso,  102  111.  App. 
252;  Kane  v.  Cicero  &  P.  Elec.  Ry.  Co.,  100  III. 
App.   181. 

66.  Chicago  City  Ry.  Co.  v.  Morse.  98  111. 
App.  662. 

67.  Where  an  intoxicated  passenger  un- 
coupled a  rear  coach,  and  the  air  brakes  au- 
tomatically set  thereon  were  insufficient  to 
stop  it  before  it  collided  with  the  forward 
section  of  the  coach — Texas  &  P.  Ry.  Co.  v. 
Storey    (Tex.    Civ.   App.)    68   S.    W.    534. 

68.  Central  of  Georgia  Ry.  Co.  v.  McKin- 
ney,  116  Ga.  13. 

69.  Cleveland  City  Ry.  Co.  v.  Osborn,  66 
Ohio  St.  45. 

70.  Citizens'  Ry.  Co.  v.  Craig  (Tex.  Civ. 
App.)  69  S.  "W.  239.  The  carrier  is  bound  to 
use  the  highest  degree  of  care  and  diligence 
reasonably  practicable  In  securing  the  safety 
of  passengers  by  keeping  its  cars  and  appli- 
ances In  a  safe  condition  and  at  all  times 
under  the  control  and  management  of  skilled 
and  competent  servants — McAllister  v.  Peo- 
ple's Ry.  Co.   (Del.  Super.)   54  Atl.  743. 

71.  r)allas  Consol.  Elec.  St.  Ry.  Co.  v. 
Broadhurst  (Tex.  Civ.  App.)   68  S.  W.  315. 


72.  Instruction  requiring  a  "very  high  de- 
gree of  care"  held  erroneous.  Passenger  in- 
jured by  collision  with  another  passenger  on 
jolt  as  the  car  rounded  a  curve — Merrill  v. 
Metropolitan  St.  Ry.  Co.,  73  App.  Div.  (N.  T.) 
401. 

73.  Such  a  situation  is  not  shown  in  an 
action  for  injuries  received  in  a  collision  be- 
tween a  street  car  and  a  wagon,  where  the 
wagon  travelling  in  the  opposite  direction 
from  the  car  Tvas  unable  to  turn  out  as  quick- 
ly as  usual  on  account  of  a  heavy  load,  and 
plaintiff  was  Injured  by  flying  splinters  in 
the  ensuing  collision. — Conway  v.  Brooklyn 
Heights  R.  Co.,  115  N.  Y.  St.  Rep.  878. 

74.  McAllister  v.  People's  Ry.  Co.  (Del. 
Super.)  54  Atl.  743. 

75.  Chicago  &  A.  R.  Co.  v.  Murphj',  99  111. 
App.  126. 

76.  Southern  Ry.  Co.  v.  Reeves  (Ga.)  42 
S.  E.  1015. 

77.  Southern  Ry.  Co.  v.  Crowder,  130  Ala. 
256;  Muth  v.  St.  Louis  &  M.  R.  R.  Co..  87  Mo. 
App.  422. 

78.  Brwln  v.  Kansas  City.  Ft.  S.  &  M.  R. 
Co.,  94  Mo.  App.  289. 

79.  Southern  Ry.  Co.  v.  Crowder.  130  Ala. 
266. 

80.  Stembridge  v.  Southern  Ry..  65  S.  C. 
440. 


§  26A 


LIABILITY    FOR    INJURIES. 


461 


transported  on  a  freight  train  is  not  entitled  to  the  highest  degree  of  care  or  skill 
consistent  with  the  nature  of  the  undertaking,  but  only  such  care  as  is  consistent 
with  the  operation  of  the  train.*^  A  person  riding  in  a  freight  car  assumes  the 
risks  incident  to  the  necessary  jerking  and  pushing  of  the  car  against  other  cars.®^ 
In  the  coupling  of  cars  to  a  freight  train,  the  carrier  must  use  such  care,  prudence 
and  foresight  as  would  be  used  by  very  cautious,  prudent  and  competent  persons 
under  similar  circumstances.*' 

Carrkige  of  passengers  in  cahs.^* — Where  a  person  riding  in  a  hack  is  injured 
by  the  collision  of  the  hack  with  a  street  car,  she  may  rely  on  the  agent  of  the 
hack  line  to  exercise  proper  care  for  her  safety,  but  as  toward  the  driver,  the  street 
car  company  is  bound  to  exercise  ordinary  care.*" 

Liability  to  persons  riding  free. — The  liability  for  negligence  is  the  same  to- 
ward one  riding  on  a  free  pass  as  toward  a  regular  passenger,*'  unless  there  is  a 
special  agreement;*^  so  a  passenger  carried  gratuitously  or  who  has  not  paid  his 
fare  may  maintain  an  action  for  negligence,**  though  a  person  riding  on  a  free  pass, 
issued  in  violation  of  statute,  cannot.** 

Duty  toivard  intoxicated,  infirm,  or  delicate  persons.^'* — A  carrier's  duty 
toward  an  intoxicated  passenger  is  not  affected  by  the  fact  that  he  violated  a 
law  in  becoming  intoxicated.  Whether  the  extent  of  intoxication  rendered  the 
passenger  unable  to  care  for  himself  is  for  the  jury.*^  A  carrier  is  liable  for  in- 
juries to  a  passenger,  though  the  condition  rendering  her  susceptible  to  such  injury 
is  not  disclosed.*^ 

Liability  of  carrier  transporting  cars  or  vising  premises  or  vehicles  of  another. — 
A  belt  line  may  be  a  common  carrier  and  liable  to  the  diligence  exacted  thereof.** 
A  street  railway  company  is  not  liable  to  persons  riding  in  che  cars  of  another 
street  railway  company  over  its  tracks  under  an  agreement,**  but  where  two  street 
railroad  lines  connect,  and  each  company  operates  cars  over  both  lines  under  an 
agreement  by  which  one  company  receives  the  fare  and  the  other  a  rental  for  its 
cars,  with  privilege  of  through  service,  the  companies  are  jointly  liable.*^  The 
negligence  of  a  lessee  of  the  tracks  of  a  railroad  company  is  imputable  to  the  lessor 
company.*'    The  carrier  is  responsible  for  the  negligence  of  persons  not  its  em- 


81.  Western  Md.  R.  Co.  v.  State,  95  Md. 
637. 

S3.  An  Instruction  to  such  effect  properly 
Includes  the  word  "necessary"  and  need  not 
state  that  there  can  be  no  recovery  If  the 
car  is  handled  In  a  usual  and  proper  manner 
— Texas  &  P.  Ry.  Co.  v.  Adams  (Tex.  Civ. 
App.)  72  S.  W.  81. 

83.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Buie 
(Tex.  Civ.  App.)   73  S.  W.  853. 

84.  Where  a  passenger  In  a  cab  was  in- 
jured by  a  collision  between  the  cab  and  a 
street  car,  an  instruction  that  as  toward  the 
cab  company  the  passenger  was  required  only 
to  sit  passively  In  the  cab  to  be  in  the  exer- 
cise of  ordinary  care.  Is  not  erroneous  as 
rendering  the  cab  company  an  insurer  of 
plaintiff's  safety — Frank  Bird  Transfer  Co.  v. 
Krug  (Ind.  App.)  65  N.  E.  309. 

85.  See  for  an  Instruction  stating  the  dis- 
tinction in  the  liability — Frank  Bird  Trans- 
fer Co.  v.  Krug  (Ind.  App.)  65  N.  E.  309. 

86.  Young  V.  Missouri  Pac.  Ry.  Co.,  93  Mo. 
App.  267. 

87.  In  re  California  Nav.  &  Imp.  Co.,  110 
Fed.  670. 

88.  Russell  v.  Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co..  157  Ind.  305,  55  L.  R.  A.  253. 

89.  Newspaper  editor  riding  on  an  annual 


pass  violating  Laws  1891,  p.  277,  c.  320,  5  4. 
forbidding  discrimination — McNeill  v.  Dur- 
ham &  C.  R.  Co.,  132  N.  C.  510. 

90.  A  complaint  states  a  cause  of  action 
which  charges  that  defendant's  servants  with 
knowledge  of  plaintiff's  Intoxicated  condition 
and  his  inability  to  care  for  himself,  allowed 
him  to  stand  In  the  baggage  car  between  two 
open  doors  dancing  and  staggering — Wheeler 
V.  Grand  Trunk  Ry.  Co.,  70  N.  H.  607.  54  L.  R. 
A.  955. 

91.  Wheeler  v.  Grand  Trunk  Ry.  Co.,  70 
N.  H.  607,  54  L.  R.  A.  955. 

92.  Injury  to  a  pregnant  woman  caused  by 
allowing  a  car  to  collide  with  a  train — St. 
Louis  S.  W.  Ry.  Co.  v.  Ferguson,  26  Tex.  Civ. 
App.  460. 

93.  Where  It  switches  whole  trains  from 
a  given  station  to  the  stock-yards — Fleming 
V.  St.  Louis  &  S.  F.  R.  Co.,  89  Mo.  App.  129. 

94.  Plaintiff  while  so  riding  on  the  plat- 
form was  struck  by  a  tree  growing  near  the 
track — Sias  v.  Rochester  Ry.  Co.,  169  N.  T. 
118. 

95.  Richard  v.  Detroit,  R.,  R.  &  L.  O.  Ry. 
Co.    (Mich.)    89  N.  W.   52. 

96.  Chicago  &  W.  I.  R.  Co.  v.  Doan,  195  111. 
168. 


462 


CARRIERS  OF  PASSENGERS.  §  26B 


ployes  in  whose  hands  it  places  a  car;"  so,  where  one  company  operates  its  cars 
over  the  road  of  another,  it  is  liable  to  passengers  for  negligence  of  servants  of  the 
licensor.^^  One  holding  a  legal  title  to  a  street  railway  in  trust,  managing  it 
in  accordance  with  the  instructions  of  a  committee,  is  not  responsible  for  the 
aegligence  of  an  employe.^^  A  switching  crew  employed  by  another  company 
may  be  the  servants  of  the  carrier.^  There  is  a  liability  to  a  passenger  who,  after 
being  thrown  from  the  carrier's  train  and  stuimed,  is  run  over  by  a  train  belonging 
to  another  company  using  the  tracks  under  an  independent  right.^ 

After  a  mail  car  has  been  placed  on  a  side  track  at  the  termination  of  its 
journey,  the  carrier  is  not  liable  to  a  mail  clerk  for  an  injury  sustained  by  reason 
of  the  negligence  of  another  corporation.' 

Wliere  a  carrier  negligently  shows  a  passenger  who  has  applied  for  a  berth,  to 
a  sleeper  belonging  to  another  company,  causing  him  to  be  carried  out  of  his  way 
and  ousted  from  the  car  by  the  conductor,  it  is  not  liable  for  wrongs  inflicted  bv  the 
company  owning  the  sleeper.* 

The  lessor  of  a  steamboat  is  not  liable  for  injuries  resulting  from  the  neg- 
ligence of  the  lessee.* 

Ujiion  stations. — The  carrier  has  been  held  liable  for  failure  to  keep  premises 
used  by  it  to  receive  and  discharge  passengers  in  safe  condition,  though  they  are  a 
union  depot  under  control  of  a  receiver  of  the  depot  company,®  but  it  has  been  also 
held  that  a  railroad  using  a  station  built  by  a  terminal  company  is  freed  from 
liability  by  discharge  of  its  passenger  at  such  station,  and  is  not  liable  for  injury 
received  by  him  while  going  through  the  station.'^  The  carrier  operating  the  depot 
is  liable  for  an  injury  to  a  person  alighting  from  a  train  on  another  road,  if  its 
negligence  concur,  and  it  is  not  necessary  that  its  negligence  be  the  sole  cause  of 
the  injury.* 

(§  26)  B.  Condition  and  care  of  premises. — The  railroad  company  must  be 
reasonably  sure  that  its  stations  are  safe,  since  the  erection  of  them  is  an  invitation 
to  the  public  to  enter  on  business,  but  is  not  liable  for  injuries  unless  the  premises 
are  unsafe  and  the  likelihood  of  injury  should  have  been  foreseen.^  A  passenger  is  not 
bound  to  find  out  whether  he  is  dealing  with  an  agent  of  the  carrier  in  the  pur- 
chase of  a  ticket  before  assuming  that  the  carrier  is  bound  to  furnish  a  safe  ap- 
proach to  its  depot.^°     An  intending  passenger  to  be  entitled  to  protection  as  such 


97.  Clerc  v.  Morgan's  L.  &  T.  R.  &  S.  S. 
Co.,  107  La.  370. 

98.  Brady  v.  Chicago  &  G.  W.  Ry.  Co.,  114 
Fed.  100,  57  L.  R.  A.  712. 

99.  The  holder  of  the  legal  title  received 
no  compensation  other  than  his  salary  as  a 
bookkeeper,  and  had  signed  an  agreement 
stating  that  he  had  purchased  the  road  with 
the  money  of  the  committee  as  their  agent 
and  in  trust  for  them,  and  agreed  to  convey 
on  their  request — O'Toole  v.  Faulkner,  29 
Wash.  544,  70  Pac.  58. 

1.  As  where  one  half  the  cost  of  switching 
at  a  certain  point  was  paid  by  defendant 
company  and  there  was  no  evidence  of  the 
terms  of  a  contract  concerning  the  joint  busi- 
ness— Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Shelton 
(Tex.)   72  S.  W.   165. 

2.  Southern  Ry.  Co.  v.  Webb  (Ga.)  42  S.  E. 
395. 

3.  Stoddard  v.  New  York.  N.  H.  &  H.  R. 
Co.,  181  Mass.   422. 

4.  Instructions  are  erroneous  for  this  rea- 
son, which  require  defendant  to  use  a  high 
degree   of   care   in   the   transportation    of  the 


and  allow  the  jury  to  take  into  consideration 
the  manner  of  his  injury,  his  mental  dis- 
tress, anguish  and  humiliation — International 
&  G.  N.  R.  Co.  v.  Evans  (Tex.  Civ.  App.)  70  S. 
W.    351. 

5.  Where  not  a  quasi  public  corporation 
with  special  privileges  or  benefits  from  the 
state — Phelps  v.  Windsor  Steamboat  Co.,  131 
N.  C.  12. 

6.  Herrman  v.  Great  Northern  Ry.  Co.,  27 
Wash.  472.  68  Pac.  82,  57  L.  R.  A.  390. 

7.  Construing  Acts  1896,  c.  516,  §§  1.  2.  3. 
8.  9,  10.  relative  to  the  organization  of  the 
Boston  Terminal  Company,  ■which  allows  con- 
struction of  a  station  by  five  railroads — Fra- 
zier  V.  New  York,  N.  IT.  &  H.  R.  Co.,  180 
Mass.  427. 

8.  A  passenger  boarded  a  train  at  the  sta- 
tion believing  that  it  was  the  train  of  a  cer- 
tain road,  and  on  finding  his  mistake  jumped 
off  while  it  was  in  motion,  slipped  on  a 
greasy  platform  and  w^as  hurt — Newcomb  v. 
New  York  Cent.  &  H.  R.  R.  Co..  169  Mo.   409. 

9.  Mavne  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 
(Okl.)  69  Pac.  933. 


passenger  to  his  destination  under  his  ticket        10.     Action  against  a  carrier  for  ;:.;iiry  r»»- 


§  26B 


CONDITION   AND   CARE   OF   PREMISES. 


463 


must  remain  in  the  station  house  or  on  such  part  of  the  grounds  as  he  has  a  legal 
right  to  be."  Allowing  a  freight  train  to  stand  so  as  to  prevent  passengers  from 
reaching  a  station  in  time  to  procure  tickets  for  their  trains  is  negligence,  but 
the  company  is  not  liable  imless  such  negligence  is  the  proximate  cause  of  an  in- 
jury which  should  have  been  foreseen  under  the  circumstances.^^ 

Duty  to  warm  stations. — The  carrier  must  keep  fire  in  its  stations  when  re- 
quired for  the  comfort  of  prospective  passengers,  and  failure  to  properly  heat  a 
waiting  room  is  prima  facie  negligence.^' 

Duty  to  furnish  safe  platforms. — The  platform  must  be  reasonably  safe  for  use 
and  so  located  as  to  afford  a  convenient  means  of  access  to  the  cars.^*  Depots  and 
platforms  must  be  kept  in  a  safe  condition.^'  Platforms  must  be  sufficiently  high.^** 
A  platform  used  exclusively  for  the  handling  of  freight,  of  which  fact  passengers 
have  Iniowledge,  need  not  be  kept  safe  for  their  use.^^  Depressions  in  station  plat- 
forms for  the  purpose  of  crossing  tracks  which  are  reached  by  moderate  inclines 
do  not  show  a  negligent  construction.**  A  carrier  is  liable  for  the  maintenance 
of  an  unguarded  stairway  on  its  station  platform,  though  the  person  injured  is  at 
the  time  intoxicated.*®  "Where  a  street  railroad  company  has  adopted  a  platform 
and  invited  the  public  to  use  it,  it  must  be  kept  in  a  reasonably  safe  condition  for 
boarding  or  alighting  from  cars,  whether  it  was  built  by  the  company  or  is  in  a 
public  street,^"  but  the  carrier  is  not  liable,  though  it  permit  a  stump  placed  in 
the  street  by  a  third  person  to  project  above  its  platform.^* 

The  carrier  is  liable  for  injuries  to  a  person  pushed  by  a  crowd  on  to  a  de- 
fective spot  in  its  platform.^2  Negligence  in  the  construction  and  care  of  platforms 
may  be  a  question  for  the  jury.^^ 

Duty  to  UgJit  platforms  and  premises. — The  carrier  is  not  bound  to  keep  its 
grounds  lighted  at  a  distance  from  the  depot  where  it  has  no  reason  to  expect  pas- 
sengers to  pass.^*    The  platform  must  be  sufficiently  lighted,^"  and  the  negligence 


celved  at  a  depot  controlled  by  a  union  depot 
company  which  had  charge  of  the  sale  of 
tickets  over  the  carrier's  road — Herrman  v. 
Great  Northern  Ry.  Co.,  27  Wash.  472,  68  Pac. 
82,  57  L.  R.  A.  390. 

11.  Instruction  held  proper  in  an  action 
for  injuries  received  by  negligence  in  un- 
loading of  baggage — Holcombe  v.  Southern 
Ry.  Co.  (S.  C.)  44  S.  E.  68. 

12.  Mayne  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 
<Okl.)    69  Pac.  933. 

13.  Sufficiency  of  instruction  considered — 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Wilson,  70  Ark. 
136. 

14.  Dotson  v.  Erie  R.  Co.  (N.  J.  Err.  & 
App.)  54  Atl.  827. 

15.  Barker  v.  Ohio  River  R.  Co.,  51  W.  Va. 
423;  Duell  v.  Chicago  &  N.  W.  Ry.  Co.,  115 
Wis.  516.  A  space  not  more  than  six  feet 
wide  between  the  tracks  of  two  railroad  com- 
panies filled  with  stone  and  cement  and  from 
five  to  seven  inches  below  the  track  level  is 
not  a  proper  place  to  discharge  passengers  at 
a  regular  station — Chicago  Terminal  Trans- 
fer R.  Co.  V.  Schmelling,  197  111.  619.  The 
mere  fact  that  the  bumper  of  a  car  projects 
slightly  over  the  edge  of  a  platform  will  not 
«:how  negligence  on  the  part  of  the  carrier — 
Dotson  V.  Erie  R.  Co.  (N.  J.  Err.  &  App.)  64 
Atl.  827. 

16.  It  Is  negligence  to  leave  12  or  13  inch- 
es between  the  car  steps  and  the  platform — 
Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Shelton  (Tex.  Civ. 
App.)   69  S.  W.  653. 

17.  Houston,  E.  &  W.  T.  Ry.  Co.  v.  Grubbs 
(Tex.  Civ.  App.)  67  S.  W.  519. 


18.  Action  for  Injuries  sustained  by  pas- 
senger jumping  from  moving  train — New- 
comb  V.  New  York  Cent.  &  H.  R.  R.  Co.,  169 
Mo.    409. 

19.  Chicago  &  E.  I.  R,  Co.  v.  Lawrence.  96 
111.  App.  635. 

20.  Haselton  v.  Portsmouth,  K.  &  Y.  St. 
Ry.,  71  N.  H.  589. 

21.  Stump  placed  by  electric  light  com- 
pany projected  11  Inches  above  platform; 
plaintiff  Intending  to  board  defendant's  car 
tripped  over  the  stump,  fell  on  the  track  and 
was  injured — Lucas  v.  St.  Louis  &  S.  Rv.  Co. 
(Mo.)  73  S.  W.  589. 

22.  Indianapolis  St.  Ry.  Co.  v.  Robinson, 
157  Ind.  414. 

23.  Haselton  v.  Portsmouth,  K.  &  Y.  St. 
Ry.,  71  N.  H.  589.  Removing  a  gate  which 
customarily  protected  a  space  between  cars 
of  an  elevated  train  allowing  the  passenger 
to  step  into  an  unguarded  hole,  believing  it 
to  be  the  platform  of  an  elevated  car  she 
was  about  to  board.  It  being  dark  at  the 
time — Lake  St.  El.  R.  Co.  v.  Burgess.  200  111. 
628.  Allowing  platform  to  remain  greasy — 
Newcomb  v.  New  York  Cent.  &  H.  R.  R.  Co., 
169  Mo.  409.  Invitation  to  board  the  train 
at  a  place  where  there  was  a  custom  to  stop, 
but  where  no  platform  was  provided — Chi- 
cago &  W.  I.  R.  Co.  V.  Doan,  195  111.  168. 

24.  Spot  130  feet  from  the  depot  occupied 
as  a  wood-yard  by  a  fuel  company — Davis  v. 
Houston.  E.  &  W.  T.  Ry.  Co.  (Tex.  Civ.  App.) 
68  S.  W.  733. 

25.  Carrier  held  liable  to  a  passenger  In- 
jured   in    alighting    from    a   moving   train    at 


464 


OAERIERS    OF   PASSENGERS.  §  26C 


of  a  city  in  failing  to  furnish  light  will  be  imputed  to  the  carrier,  though  it  has 
made  diligent  efforts  to  have  its  premises  properly  lighted  by  the  city.*«  The  ques- 
tion of  negligence  is  for  the  jury." 

Street  near  tracks  of  street  railroad}^— k  street  car  company,  though  not 
bound  to  furnish  safe  places  to  set  down  passengers,  must  warn  them  of  dangers 
known  to  it  or  assist  them  where  such  dangers  are  unknoAvn  to  the  passenger.'* 
Xegligence  may  be  found  from  the  fact  that  a  car  is  stopped  in  the  nighttime  so 
that  in  alighting  a  passenger  steps  into  a  trench.^"  If  a  city  ordinance  requires 
street  car  companies  to  pave  and  keep  in  repair  a  space  between  lines  one  foot  out- 
side the  outside  rails,  the  company  is  bound  to  keep  in  repair  both  pavements  laid 
under  the  ordinance  and  pavements  previously  laid,*^  but  such  ordinance  does  not 
confer  a  right  of  action  on  passengers  injured  through  nonrepair  independent  of 
the  consideration  of  the  general  question  of  negligence.'^  A  street  car  company  must 
provide  a  reasonably  safe  place  for  passengers  to  alight.^'  A  finding  that  a  plat- 
form has  been  adopted  as  a  place  to  receive  and  discharge  passengers,  and  the 
public  invited  to  use  it,  is  justified  by  the  fact  that  the  company  regularly  stops 
there  to  take  on  and  discharge  passengers.^* 

(§26)  C.  Talcing  on  passengers.  Duty  to  afford  time  to  hoard  trains. — The 
carrier  must  afford  a  reasonable  opportunity  to  board  its  trains  to  persons  who,  it  hav- 
ing notice,  purpose  doing  so,  and  who  present  themselves  under  such  circumstances 
that  they  may  be  reasonably  accepted,  they  being  in  the  exercise  of  reasonable 
care  and  expedition.^'  Statutes  requiring  sufficient  stop  to  allow  passengers  to 
get  on  or  off  apply  to  excursion  trains. ''  The  carrier  must  not  start  its  train  while 
a  passenger  is  boarding  it,  no  matter  how  long  it  has  stopped.^^  Where  the  ticket 
office  is  closed  just  before  the  departure  of  the  train,  but  a  passenger  attempting  to 
i)oard  the  train  without  a  ticket  is  sent  by  the  conductor  to  get  one,  the  carrier  is 
negligent  if  it  start  the  train  without  giving  him  a  reasonable  time,  and  he  is 
injured  by  attempting  to  board  the  train  while  it  is  in  motion.^* 

It  is  negligence  to  start  a  freight  train  with  a  jerk  before  a  passenger  has  had 
time  to  enter  the  caboose.'^ 

Street  railroads. — A  street  railway  company  is  bound  to  stop  at  its  regular 
crossing,  on  a  seasonable  signal,  to  receive  passengers,  and  a  rule  that  its  cars 
shall  not  be  backed  when  they  have  stopped  beyond  the  crossing  to  receive  a  person 

night   at   It3   direction — Gulf,   C.    &   S.   F.   Ry.l      32.     Fielders    v.    North    Jersey    St.    Ry.    Co. 
Co.  V.  Shelton  (Tex.  Civ.  App.)    69  S.  W.   653;     (N.  J.  Err.  &  App.)  53  Atl.  404. 
Duell  V.   Chicago   &  N.  W.   Ry.   Co.,   115  Wis.        33.     A    street    car    crmpany    Is    liable    to    a 
616.  passenger  who  on  a  dark  night  trips  over  a 

ae.     Owen   V.   Washington    &   C.    R.   R.   Co.,    pile    of    lumber    left    near    the    track    by    the 
29  Wash.  207,  69  Pac.  757.  carrier  on  the  day  previous — Montgomery  St. 


27.  Chadbourne  v.  Illinois  Cent.  R.  Co.,  104 
111.   App.    333. 

28.  The  fact  that  a  street  railway  com- 
pany engaged  in  an  excavation  for  the  pur- 
pose of  laying  down  a  new  track,  allows  a 
pile  of  earth  to  remain  on  the  street  in  broad 
daylight,  and  does  not  direct  a  person  alight- 
ing from  its  car  to  take  a  safe  course,  plain- 
ly indicated  by  the  situation,  is  not  negli- 
gence rendering  It  liable  to  a  person  stepping 
on  a  pile  of  earth,  thrown  from  the  excava- 
tion and  precipitated  into  the  trench  by  the 
earth  giving  way — Lee  v.  Boston  El.  Ry.  Co., 
182   Mass.   454. 

29.  Sweet  v.  Louisville  Ry.  Co.,  23  Ky.  L. 
R.  2279.  67  S.  W.  4. 

30.  Wolf  v.  Third  Ave.  R.  Co.,  67  App.  Div. 
(N.  T.)    605. 

31.  Fielders  v.  North  Jersey  St.  Ry.  Co.. 
67  N.  J.  Law,  76. 


Ry.  Co.  V.  Mason,  133  Ala.  508. 

34.  Haselton  v.  Portsmouth,  K.  &  T.  St. 
Ry..  71  N.  H.  589. 

3.5.  Chicago  &  A.  R.  Co.  v.  Flaharty,  96  111. 
App.  563.  Liability  cannot  be  based  on 
knowledge  of  the  carrier's  employees  that 
plaintiff  was  off  its  train  and  desired  to  get 
on  again — Texas  &  P.  Ry.  Co.  v.  Gray  (Tex. 
Civ.  App.)  71  S.  W.  316. 

36.  Rev.  St.  1893,  §  1687 — Oliver  v.  Colum- 
bia, N.  &  L.  R.  Co.,  65  S.  C.  1. 

37.  Texas  &  P.  Ry.  Co.  v.  Gardner  (C.  C. 
A.)  114  Fed.  186. 

38.  Sayles'  Ann.  Civ.  St.  1897,  art.  4542,  re- 
quires ticket  offices  to  be  kept  open  thirty 
minutes  before  the  departure  of  trains — 
IMissouri.  K.  &  T.  Ry.  Co.  v.  Gist  (Tex.  Civ. 
App.)  73  S.  W.  857. 

39.  Kelly  V.  Vicksburg,  S.  &  P.  Rv.  Co.,  lOS 
La.    423. 


MEANS  OF  TRANSPORTATION. 


4C5 


§  26D 

who  has  properly  signaled  is  unreasonable.'"  An  intending  passenger  has  a  right 
to  get  on  a  car  which  is  stopped,  or  in  the  act  of  stopping,  or  is  so  managed  as  to 
induce  the  passenger  to  thinlc  it  is  about  to  stop,  and  tlie  carrier  is  liable  for  an  in- 
jury resulting  from  starting  before  the  passenger  is  safely  seated,*^  and  starting 
without  warning  may  be  negligence;*-  but  where  a  car  has  been  stopped  solely  to 
enable  the  conductor  to  go  forward  at  a  railroad  crossing,  the  motorman  is  not 
negligent  in  starting  without  first  ascertaining  if  any  one  is  about  to  get  on." 
Though  the  car  did  not  stop  to  receive  passengers,  the  carrier  is  liable  to  one  who 
has  signaled  it  and  attempts  to  board,  unless  he  has  been  warned  not  to.**  One 
attempting  to  board  a  car  which  has  refused  to  stop  for  him  cannot  recover  for 
an  injury  as  due  to  the  failure  to  stop  and  accept  him.*'  Where  the  gates  are 
abruptly  closed  so  as  to  catch  the  dress  of  an  intending  passenger  before  she  has 
time  to  board  the  car,  the  carrier  is  liable  for  injury  sustained  by  her  through 
"being  thrown  on  the  starting  of  the  car.*'  A  concealed  infirmity  in  the  pas- 
senger does  not  excuse  a  starting  while  she  is  attempting  to  board  the  car.*''  There 
must  be  evidence  that  a  passenger  was  seen  by  the  conductor  in  his  attempt  to  get 
on.*^ 

A  motorman  is  not  required  to  foresee  that  one  intending  to  board  his  car 
may  fall  on  the  track  in  front  of  it.*®  A  person  crossing  in  front  of  a  car,  after 
signaling  it  to  stop,  may  assume  that  the  motorman  will  use  reasonable  care  for 
her  safety."* 

Starting  while  passenger  is  en  route  to  seat. — It  may  be  negligence  to  start  a 
street  car  before  a  child  has  an  opportunity  to  be  seated."^  The  question  of  the 
carrier's  negligence  may  be  for  the  jury  where  it  starts  suddenly  after  slowing 
down  to  receive  a  passenger  and  after  the  passenger  has  stepped  on  the  running 
board. "^ 

(§  36)  D.  Means  and  facilities  for  transportation.  Nature  of  accommoda- 
tions.— Female  second-class  passengers  must  not  be  compelled  to  ride  in  an  illy  ven- 
tilated smoking  car  occupied  by  men  only.^^  The  use  of  reasonable  care  and  diligence 
in  warming  coaches  and  providing  water  is  not  sufficient."^* 

Construction  of  tracks  and  care  as  to  adjacent  objects. — A  street-car  company 
must,  with  regard  to  its  tracks,  use  the  highest  degree  of  care  consistent  with  the 
undertaking. °^     Long  continued  operation  of  the  road  without  accident  does  not 


40.  A  passeng'er  signalled  on  a  rainy  night 
in  a  muddy  road,  car  40  feet  beyond  the 
crossing.  It  being  necessary  to  walk  seven 
blocks  If  he  "was  not  taken  up — Jackson  Elec. 
Ry.,  L.  &  P.  Co.  V.  Lowry,  79  Miss.  431. 

41.  Austrian  v.  United  Traction  Co.,  19  Pa. 
Super.  Ct.  329. 

4t£.  "While  a  young  girl  is  trying  to  board 
it — Schocnfeld  v.  Metropolitan  St.  Ry.  Co.,  40 
Misc.   (N.  Y.)   201. 

43.  There  is  no  liability  of  a  person 
thrown  off  by  a  sudden  jerk  incident  to  the 
starting  of  a  car.  he  having  attempted  to 
board  •without  giving  notice  of  his  intention 
to  do  so — Packard  v.  Toledo  Traction  Co.,  22 
Ohio  Clrc.  R.  578. 

44.  No  liability  to  one  trying  to  board  aft- 
er warning  sufficiently  loud  to  be  heard  by 
an  ordinary  person — Maxey  v.  Metropolitan 
St.  Ry.  Co..  95  Mo.  App.  303. 

45.  South  Chicago  City  Ry.  Co.  v.  Du- 
fresne.  200  111.  456. 

46.  Brown  v.  Manhattan  Ry.  Co.,  115  N.  Y. 
St.  Rep.  755. 

47.  Austrian  v.  United  Traction  Co.,  19  Pa. 
Super.  Ct.   329. 

Curr.  Law — 30. 


48.  Monroe  v.  Metropolitan  St.  Ry.  Co.,  79 
App.  Div.    (N.  Y.)   587. 

49.  Winchell  v.  St.  Paul  City  Ry.  Co..  86 
?.Iinn.    445. 

50.  Coneland  v.  Metropolitan  St.  Ry.  Co., 
78  App.  Div.   (N.  Y.)  418. 

51.  Child  two  years  and  nine  months  old 
thrown  down  while  she  was  temporarily  be- 
yond the  reach  of  the  person  w^ith  her — Her- 
bich  V.  North  Jersey  St.  Ry.  Co.,  67  N.  J.  Law, 
574. 

52.  Powelson  v.  United  Traction  Co.,  204 
Pa.   474. 

53.  Plaintiff  was  sold  tickets  without 
knowledge  that  they  were  second  class 
though  she  had  informed  the  agent  that  she 
wished  to  go  as  cheaply  as  possible — South- 
ern Ry.  Co.  v.  Wood,  114  Ga.  159. 

54.  Duty  is  to  exercise  such  a  high  degree 
of  foresight  and  prudence  as  would  have 
been  used  by  very  cautious,  prudent  and 
competent  persons  under  similar  circumstan- 
ces— Arrington  v.  Texas  &  P.  Ry.  Co.  (Tex. 
Civ.  App.)  70  S.  W.  551. 

55.  OalUgan  v.  Old  Colony  St.  Ry.  Co.,  183 
Mass.  211. 


4b6 


CARRIERS   OF    PASSENGERS. 


§  26D 


show  an  absence  of  negligence  as  a  matter  of  law.  The  question  is  for  the  jury.'* 
Wliere  a  track  passes  through  a  cut  not  used  for  travel,  the  care  required  as  to 
falling  material  is  as  if  the  tracks  were  on  the  land  of  the  company."  Accidents 
from  extraordinary  natural  causes  may  not  impose  liabilit}\^^  It  is  negligence  to 
leave  a  barrel  of  gravel  so  near  the  track  as  to  derail  a  street  car.''  To  place  a 
freight  car  on  a  siding  so  that  its  doors  extend  over  the  main  track  is  negligence,''" 
and  it  is  gross  negligence  to  construct  a  freight  platform  so  that  freight  thereon 
will  strike  the  elbow  of  a  passenger  protruding  but  slightly  from  a  passing  car.^^ 
The  question  of  whether  a  manner  of  construction  of  tracks  is  proper  or  not  cannot 
be  submitted  to  a  jury.®* 

Construction  and  care  of  cars. — The  duty  of  a  street  car  company  to  keep  car 
platforms  and  steps  safe  is  relative  to  the  practical  operation  of  the  road  in  con- 
sideration of  the  climate,  temperature,  and  condition  of  the  air  vsdth  respect  to 
snow,  moisture,  and  frost,®'  and  the  fact  that  ice  collects  on  the  steps  of  a  railway 
car  does  not  show  negligence,  in  the  absence  of  evidence  of  time  and  opportunity 
to  remove  it.®*  As  regards  curtain  rods  on  its  cars,  a  street  car  company  is  not 
bound  to  the  highest  degree  of  care.®'  Fall  of  a  window  not  shown  to  have  been 
caused  by  any  defects  in  the  window  or  fastenings  does  not  impose  liability.®" 
The  fall  of  a  fire  extinguisher  in  a  street  car  is  prima  facie  evidence  of  negli- 
gence.®^ A  carrier  may  be  liable  for  the  consequences  of  an  electric  shock  re- 
ceived by  a  passenger.®^ 

Use  of  usual  and  approved  appliances. — A  carrier  is  not  liable  for  the  use  of 
an  appliance  furnished  with  the  car  by  the  best  builder  of  cars  and  in  the  same 
condition,  except  as  improved  by  the  company,  where  it  do&s  not  appear  that  a 
safer  appliance  is  in  use  or  could  be  procured,®®  though  otherwise  if  the  appliance 
is  allowed  to  get  out  of  order.''"  The  most  approved  spark  arrester  in  use  must  be 
provided  to  prevent  the  injury  of  passengers  from  the  escape  of  sparks  or  cinders.'^' 

Duty  to  inspect  appliances.''^ — The  carrier's  duty  to  exercise  the  utmost  care 
and  skill  which  prudent  men  are  accustomed  to  exercise  under  similar  circum- 
stances with  regard  to  its  appliances  is  not  met  by  recent  inspection  or  by  inspec- 
tion by  a  competent  employe."     An   inspection   consistent  with  the  reasonable 


56.  Passenger  injured  was  on  a  foot-board  I 
of  an  open  car,  there  were  18  inches  of  space 
between  the  edge  of  the  foot-board  and  the 
bridge,  and  the  car  was  going  at  an  unlawful 
rate,  no  warning  having  been  given — Ander- 
son V.  City  &  Suburban  Ry.  Co.  (Or.)  71  Pac. 
659. 

57.  Galligan  v.  Old  Colony  St.  Ry.  Co.,  182 
Mass.   211. 

58.  No  liability  where  tree  falls  from  out- 
side the  right  of  way  across  the  track  imme- 
diately before  the  accident — Alabama  Mid- 
land Ry.  Co.  V.  Guilford.  114  Ga.   627. 

59.  Ramson  v.  Metropolitan  St.  Ry.  Co.,  78 
App.  Div.  (N.  T.)   101. 

60.  Clerc  v.  Morgan's  L.  &  T.  R.  &  S.  S. 
Co..  107  La.  370. 

61.  Kird  v.  New  Orleans  &  N.  "W.  Ry.  Co., 
109  La    525. 

62.  The  question  is  whether  the  highest 
degree  of  care  for  the  safety  of  passengers 
has  been  exercised — Merchant  v.  South  Chi- 
cago City  Ry.   Co..   104  111.  App.   122. 

63.  Herbert  v.  St.  Paul  City  Ry.  Co.,  85 
Minn.  341. 

64.  Pittsburgh.  C,  C.  &  St.  L.  Ry.  Co.  v. 
Aldridge.  27  Ind.  App.  498.  Evidence  held  to 
show  negligence  in  failing  to  prevent  car 
steps  from  becoming  slippery — Foster  v.  Old 
Colony  St.  Ry.  Co..  1S2  Mass.  378. 


65.  Plaintiff  was  Injured  by  the  breaking 
of  a  rod  in  a  storm  and  it  was  shown  that 
the  rods  had  been  in  use  only  two  years,  had 
been  furnished  by  a  maker  of  high  standard 
and  were  in  ordinary  use.  The  break  was 
clean  and  showed  no  flaw — Leyh  v.  New- 
burgh  Elec.  Ry.  Co..  168  N.  Y.  667. 

66.  Texas  Midland  R.  v.  Johnson  (Tex.  Civ. 
App.)   65  S.  "W.  388. 

67.  Allen  v.  United  Traction  Co..  67  App. 
Div.   (N.  Y.)   363. 

68.  Buckbf^e  v.  Third  Ave.  R.  Co.,  64  App. 
Div.   (N.  Y.)   360. 

69.  Injury  from  catching  dress  on  plunger 
in  floor  of  car — Smith  v.  Kingston  City  R. 
Co..  169  N.  Y.  616. 

70.  Ring  in  a  car  floor  was  allowed  to  get 
into  such  a  condition  that  It  arose  when  the 
car  started  and  remained  so  unless  replaced — 
Kingman  v.  Lynn  &  B.  R.  Co.,  181  Mass.  387. 

71.  St.  Louis  S.  W.  Ry.  Co.  v.  Parks  (Tex. 
Civ.  App.)   73  S.  W^.  439. 

72.  Where  it  is  shown  that  if  certain  bolts 
connected  with  a  steamboat's  machinery  had 
been  properly  examined  the  injury  might 
have  been  avoided,  defendant's  negligence  is 
for  the  jury — Wilmington  Steamboat  Co.  v. 
Walker.  120  Fed.  97. 

73.  Davis  v.  Paducah  Ry.  &  Light  Co.,  24 
Ky.  L.   R.   135.   68  S.  W.  140. 


§  26E 


OPERATION  OF  TRAINS. 


467 


dispatch  of  business  is  suflBcient.'^*  In  some  jurisdictions  the  carrier  is  liable  for 
defects  in  its  cars  which  could  have  been  discovered  by  the  exercise  of  the  utmost 
precaution,  care,  and  skill  in  their  construction,  though  not  discoverable  after  the 
cars  came  into  the  defendant's  possession,''^  but  in  others  is  not  liable  for  defective 
appliances,  where  the  defects  are  not  discoverable  by  the  most  careful  inspection 
and  the  apparatus  is  of  the  best  pattern,  purchased  of  a  manufacturer  in  high 
standing,  and  frequently  inspectedJ°  When  a  train  is  derailed  by  the  breaking  of 
an  axle  and  plaintiff  is  induced  to  jump  and  receives  injuries,  the  carrier  may  be 
liable  though  the  breaking  of  the  axle  was  not  the  immediate  cause  of  injury,  if  it 
was  the  result  of  a  defect  which  could  have  been  discovered  by  an  ordinary  inspec- 
tion/^ Allowing  a  switch  to  remain  closed,  causing  an  air  brake  to  fail  to  oper- 
ate, is  negligence.''^ 

Duty  to  prevent  exposure  of  passengers  to  danger. — The  highest  degree  of  care 
exacted  of  carriers  of  passengers  does  not  require  the  company  to  adopt  any  par- 
ticular method  of  construction  or  to  make  it  impossible  for  passengers  to  expose 
themselves  to  danger.''®  The  carrier  may  be  negligent  in  inducing  a  passenger  to 
assume  a  dangerous  position,***  though  it  is  not  negligence  per  se  to  receive  a 
passenger  on  a  crowded  car,*^  nor  to  allow  passengers  to  ride  on  the  footboard  of 
open  cars,  where  all  seats  are  occupied,*^  though  circumstances  may  render  it  so.*^ 
]f  cars  are  allowed  to  become  overcrowded,  additional  care  and  caution  must  be 
exercised,  and  if  the  passenger  is  received  under  such  condition  that  he  must  stand 
on  the  platform,  and  his  fare  is  accepted,  he  must  be  protected  from  accident  as  far 
as  circumstances  allow.**  Negligence  in  failure  to  provide  sufficient  room  inside 
cars  is  for  the  jury,^"*  as  is  the  question  of  whether  seats  were  provided.** 

(§  26)  E.  Operation  and  management  of  trains  and  other  vehicles.^'' — By  stat- 
ute, a  carrier  may  be,  as  a  matter  of  law,  negligent  in  placing  burden  cars  behind  pas- 
senger coaches.**  It  is  not  negligence  to  place  a  car  without  vestibules  in  a  train  ad- 
vertised as  a  solid  vestibuled  train.*®  The  question  of  whether  a  carrier  is  negligent 
in  not  delaying  a  mail  train  in  order  to  place  a  less  crowded  train  in  front  on  the 
day  of  an  excursion  is  for  the  jury.®"     Opening  a  front  platform  gate  before  a  full 


74.  A  scientific  Inspection  is  not  required 
to  discover  a  defect  in  axle  or  brakes  of  a 
freig-ht  car  received  from  another  company — 
Western  Maryland  R.  Co.  v.  State,  95  Md.  637. 

T!?.  Defects  in  street-car  wheels — Siemsen 
V.  Oakland,  S.  L.  &  H.  Elec.  Ry.,  134  Cal.  494. 

76.  Breaking-  of  a  pin  in  a  pipe  prevent- 
ing- the  turning  of  a  switch — Buckland  v. 
New  York,  N.  H.  &  H.  R.  Co.,  181  Mass.  3. 

77.  Western  Maryland  R.  Co.  v.  State,  95 
Md.  637. 

78.  McAllister  v.  People's  Ry.  Co.  (Del. 
Super.)  54  Atl.  743. 

79.  Merchant  v.  South  Chicago  City  Ry. 
Co.,  104  111.  App.  122. 

80.  Causing  him  to  go  on  the  steps  where 
he  is  thrown  off  by  a  sudden  stopping  of  the 
train — Southern  Ry.  Co.  v.  Roebuck,  132  Ala. 
412. 

81.  Burns  V.  Boston  El.  Ry.  Co.  (Mass.)  66 
N.  E.  418;  Houston  &  T.  C.  R.  Co.  v.  Bryant 
(Tex.  Civ.  App.)  72  S.  W.  885. 

82.  Anderson  v.  City  &  Suburban  Ry.  Co. 
(Or.)   71  Pac.  659. 

S3.  Where  a  car  Is  run  at  the  speed  of 
15  miles  an  hour  around  a  curve  near  which 
is  a  pole  14%  inches  from  the  outside  of  an 
8%  Inch  running-  board — Hesse  v.  Meriden,  S. 
&  C.  Tramway  Co.  (Conn.)  54  Atl.  299. 

84.     Passenger  on  a  front  platform  at  the 


conductor's  request,  may  recover  If  Jostled 
therefrom  by  the  action  of  the  conductor  In 
jumping-  upon  the  front  steps  of  the  car — 
McCaw  V.  Union  Traction  Co.  (Pa.)  54  Atl. 
893. 

85.  The  passenger  was  allowed  to  ride  on 
a  platform  so  crowded  that  he  was  apt  to  be 
pushed  off  by  employes  operating  the  car — 
Cattano  v.  Metropolitan  St.  R.  Co.,  173  N.  Y. 
565. 

80.  Farnon  v.  Boston  &  A.  R.  Co..  180 
Mass.  212. 

87.  Rev.  St.  art.  4517,  does  not  render  a 
carrier  liable  for  failure  to  provide  a  hand- 
brake and  brakeman  on  the  rear  coach  of  a 
strictly  passenger  train — Texas  &  P.  Ry.  Co. 
V.   Storey   (Tex.   Civ.  App.)    6S   S.  W.   534. 

S8.  Under  Sand.  &  H.  Dig-.  §  6195.  the  car- 
rier is  liable  where  a  train  is  composed  of  a 
caboose  in  front,  followed  by  several  freight 
cars,  and  pushed  by  an  engine  in  the  rear, 
and  the  caboose  Is  derailed,  causing  the 
death  of  the  passenger — Prescott  &  N.  Ry 
Co.  v.   Smith,   70  Ark.   179. 

89.  Sansom  v.  Southern  Ry.  Co.  (CCA) 
111  Fed.  887. 

90.  Where  negligence  alleged  was  in  the 
permission  of  excursion  trains  to  become  over- 
crowded, and  there  was  evidence  that  the  or- 
der of  the  trains  could  have  been  changed  so 


468 


CARRIERS    OF   PASSENGERS. 


§  26E 


stop  is  not  negligence  per  se."  A  guard  opening  an  exit  door  of  an  elevated 
road,  before  the  complete  stopping  of  a  train,  was  not  negligent  though  in  so 
doing  he  injured  the  hand  of  a  passenger,  he  having  no  knowledge  of  its  position.®=^ 
Carrier  is  liable  for  willful  running  at  a  speed  occasioning  derailment.®* 

Frightening  and  misleading  passengers. — Negligence  of  a  street-car  company 
in  exposing  a  passenger  to  apparently  imminent  danger,  causing  him  to  jump  from 
the  car,  is  for  the  jury,®*  as  is  continuance  of  operation  of  a  car  after  the  motor- 
man  should  have  known  that  if  it  was  not  stopped  the  controller  would  burn 
out.®^  Negligence  in  the  management  of  an  electric  car,  creating  a  panic,  may  be 
regarded  as  the  proximate  cause  of  an  injury  resulting  from  the  panic,  if  the  con- 
duct of  the  passengers  was  such  as  might  reasonably  be  expected  under  the  cir- 
cumstances.®' 

Duty  to  avoid  sudden  jerlcs.^'' — Where  hilly  country  necessitates  frequent  curves, 
the  incidental  lurcliing  is  not  negligence.®*  A  sudden  and  violent  stopping  of  a 
street  car  is  not  evidence  of  negligence  unless  unusual  in  degree,  caused  by  a 
defect  in  the  car  or  track,  or  by  an  unusual  or  dangerous  speed.®®  A  jerk  throw- 
ing a  passenger  from  the  front  platform  of  a  horse  car  may  be  negligence,^  but 
one  thrown  off  a  street  car  by  a  sudden  stop  to  avoid  a  collision  which  was  not  due 
to  the  carrier's  negligence  cannot  recover.^  Where  a  sudden  increase  in  speed  is 
due  to  avoid  a  collision  with  a  railroad  train  on  an  intersecting  track,  it  will  not  be 
regarded  as  negligent.'  The  mere  fact  that  a  person  is  injured  by  another  pas- 
senger being  thrown  against  her  while  a  street  car  is  rounding  a  curve  does  not 
render  the  carrier  liable.*  If  by  statute  separate  accommodations  must  be  furnish- 
ed negroes,  the  carrier  is  liable  to  a  negro  crowded  on  the  platform  by  white  men 
occupying  the  negro  coach  and  thro-\\Ti  therefrom  by  the  jolting  of  the  car.-'  Neg- 
ligence is  not  shown  by  the  fact  that  the  person  on  a  rear  platform  is  thrown  off 
by  a  sudden  stop." 

Management  of  mixed,  freight,  and  cattle  trains. — A  carrier  in  the  transporta- 
tion of  passengers  on  a  mixed  train  is  not  relieved  from  negligence  in  the  man- 


as  to  place  the  less  crowded  train  where  the 
most  people  wished  to  board  It,  the  question 
of  negligence  in  the  arrangement  of  the 
trains  should  be  submitted  by  the  Instruc- 
tions— "Williams  v.  Internp.tional  &  G.  N.  R. 
Co.  (Tex.  Civ.  App.)   67  S.  W.  1085. 

91.  Paginlni  v.  North  Jersey  St.  Ry.  Co. 
(N.  J.  Sup.)  54  Atl.  218. 

92.  Hannon  v.  Boston  El.  Ry.  Co.,  182 
Mass.  425. 

93.  Negligence  and  willfulness  In  running 
a  mixed  train  on  a  new  road  is  for  the  jury 
— Stembridge  v.  Southern  Ry.,  65  S.  C.  440. 

94.  After  the  conductor  signaled  the  mo- 
torman  to  come  on  across  a  railroad  track  he 
motioned  him  to  stop,  which  he  did  not  do. 
but  crossed  the  track  barely  In  time  to  avoid 
a  collision — Robson  v.  Nassau  Elec.  R.  Co., 
80  App.  Div.   (N.  Y.)  SOI. 

95.  Passenger  was  injured  by  panic  occa- 
sioned Dy  the  explosion  of  controller — Dunlay 
V.  United  Traction  Co.,  18  Pa.  Super.  Ct.  206. 

96.  Defective  appliances  produced  a  flash 
of  fire  followed  by  smoke  In  the  car — Davis 
V.  Paducah  Ry.  &  Light  Co.,  24  Ky.  L.  R.  135, 
68  S.  W.  140. 

97.  The  question  of  negligence  in  running 
a  train  rapidly  around  the  curve  and  throw- 
ing off  a  passenger,  is  for  the  jury — JNIacy  v. 
New  Bedford,  M.  &  B.  St  Ry.  Co.,  182  Mass. 
291.  Negligence  in  running  a  train  rapidly 
around  sharp  curves  without  devices  to  pro- 


tect Its  platforms — Northern  Pac.  Ry.  Co.  v. 
Adams,  116  Fed.  324. 

98.  A  railroad  running  through  a  hilly 
country,  necessarily  having  frequent  curves 
in  its  track,  while  bound  to  use  the  highest 
degree  of  care  in  its  construction  and  the 
management  of  its  trains,  cannot  avoid  the 
lurching  incidental  to  such  condition — San- 
som  V.  Southern  Ry.  Co.  (C.  C.  A.)  Ill  Fed. 
887. 

99.  Chicago  City  Ry.  Co.  v.  Morse,  98  111. 
App.  662. 

1.  Where  caused  by  the  driver  striking 
the  team  without  warning — Eberhardt  v. 
Metropolitan  St.  Ry.  Co.,  69  App.  Div.  (N.  T.) 
560. 

2.  Cleveland  City  Ry.  Co.  v.  Osborn,  66 
Ohio  St.  45. 

3.  The  employees  of  the  street  car  had 
used  proper  care  to  ascertain  that  no  train 
was  approaching  before  starting  on  the  track 
— Corkhill  V.  Camden  &  S.  Ry.  Co.  (X.  J. 
Law)   54  Atl.  522. 

4.  Merrill  v.  Metropolitan  St.  Ry.  Co.,  73 
App.  Div.  (N.  Y.)  401. 

5.  Rev.  St.  1895,  arts.  4509,  4516 — TV*illiams 
v.  International  &  G.  N.  R.  Co.  (Tex.  Civ. 
App.)  67  S.  W.  1085. 

<;.  Passenger  was  not  holding  to  anything; 
there  was  no  showing  of  a  defect  in  the  car 
or  rails  or  that  the  stop  was  not  justifiable — 
Timms  v.  Old  Colony  St.  Ry.  (Mass.)  66  N.  E. 
797. 


26K 


MANAGEMENT  OF  TRAINS. 


469 


agement  of  the  trains,  or  in  the  condition  of  the  cars,  by  the  fact  that  the  passen- 
gers assume  incidental  discomforts/  but  passengers  on  freight  trains  assume  risks 
ordinarily  incident  to  their  operation/  and  negligence  will  not  be  inferred  from 
a  jar  in  a  sudden  stopping  of  such  a  train.®  If  a  conductor  with  knowledge  that 
a  person  is  in  a  car  with  stock  does  not  warn  him  to  get  out  of  the  car  or  prevent 
recklessness  on  the  part  of  the  employees,  the  carrier  is  liable  for  injuries  result- 
ing from  sudden  jolt,  though  plaintiff  had  no  right  to  be  in  the  car.^° 

Duty  to  avoid  collision}^ — A  car  driver  who  drives  on  a  railroad  crossing  with- 
out stopping,  looking,  and  listening  is  negligent,  as  where  in  so  doing  he  also  vio- 
lates a  city  ordinance  requiring  a  complete  stop;^^  and  failure  to  stop  a  street 
car  and  sound  its  gong  before  passing  on  a  railroad  track  may  be  negligence  per  se.^* 
Wliere  a  passenger  is  injured  in  a  collision  between  a  street  car  and  a  steam  car, 
negligence  of  the  railroad  is  immaterial  if  the  street  car  company  was  also  negli- 
gent.^* Violation  of  rules  as  to  the  distance  to  be  maintained  between  trains  may 
be  gross  negligence,  rendering  the  carrier  liable  for  injuries  from  collision.^'^  It 
is  negligence  to  run  a  car  at  such  a  high  rate  of  speed  around  a  curve  as  to  occa- 
sion a  collision  with  another  car.^®  The  question  of  whether  a  grip-car  driver  is 
negligent  in  not  sounding  his  gong  is  for  the  jury.^^  The  carrier's  negligence  caus- 
ing imminent  danger  of  collision  is  the  proximate  cause  of  an  injury  to  a  passen- 
ger who  jumps,  or  is  pulled  off,  or  is  injured  by  one  jumping  on  her  after  she 
has  left  the  car.^^ 

Passing  cars  receiving  and  discharging  passengers}^ — A  carrier  running  a  train 
past  another,  stopping  for  the  purpose  of  receiving  and  discharging  passengers  at 
a  station,  must  exercise  the  greatest  care  and  caution.^"  It  is  negligence  for  a 
motorman  passing  a  car  stopping  to  discharge  passengers  to  fail  to  sound  his  gong.^^ 
A  car  need  not  slow  up  when  passing  another  which  has  just  started  after  a  stop 
tc  discharge  passengers.^'^  The  carrier  may  be  liable  for  the  death  of  a  child 
sttuck  by  a  train  on  an  intervening  track  while  the  child  is  crossing  the  track  witli 
its  mother  from  a  train  discharging  passengers  at  the  station,  there  being  a  place 
provided  for  passengers  to  cross  the  track  at  that  point  and  the  conductor  having 


r.  Symonds  v.  Minneapolis  &  St.  L.  By. 
Co.   (Minn.)   92  N.  "W.  409. 

8.  One  arising  from  his  seat  to  take  off 
his  overcoat  cannot  recover  for  a  sudden  jar 
Jnjuring  him,  in  the  absence  of  evidence  of 
defects  in  track,  train  or  appliances,  nor  of 
skill  In  handling-  or  stoppage  at  an  improper 
place — Walt  v.  Omaha,  K.  C.  &  B.  R.  Co.,  165 
Mo.  612. 

9.  Erwin  V.  Kansas  City,  Ft.  S.  &  M.  R. 
Co.,   94  Mo.  App.   289. 

10.  Bolton  v.  Missouri  Pac.  Ry.  Co.  (Mo.) 
72  S.  W.  530. 

11.  Street  car  company's  care  in  not  avoid- 
ing collision  with  a  truck  held  to  be  a  ques- 
tion for  the  jury — Suse  v.  Metropolitan  St. 
Ry.  Co.,  80  App.  Div.   (N.  T.)   24. 

12.  Selma  St.  &  Suburban  Ry.  Co.  v.  Owen, 
132    Ala.    420. 

13.  Under  an  ordinance  requiring  such 
stop  and  prescribing  a  penalty  on  motormen 
disregarding  it— Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Holt  (Tex.  Civ.  App.)  70  S.  W.  591. 

14.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Holt  (Tex. 
Civ.  App.)    70  S.  W.  591. 

15.  Freight  train  making  no  stops  and 
running  at  a  speed  of  from  25  to  30  miles  an 
hour  left  a  station  from  4  to  11  minutes  be- 
hind a  passenger  train  making  many  stops 
and  running  at  a  rate  of  23  miles  an  hour — 


Louisville  &  N.   R.  Co.  v.   Richmond,   23  Ky. 
L.  R.  2394,  67  S.  W.   25. 

16.  Private  car  of  the  president  was  run- 
ning around  a  curve  at  a  high  rate  of  speed 
with  knowledge  that  there  was  another  car 
out  on  the  road  which  would  come  in  at  some 
time  during  the  evening — Hennessy  v.  St. 
Louis  &  S.  Ry.  Co.  (Mo.)   73  S.  TV.  162. 

17.  Action  by  a  passenger  Injured  In  a  col- 
lision between  the  grip-car  and  a  buggy — 
West  Chicago  St.  R.  Co.  v.  Tuerk,  193  111.  385. 

18.  Birmingham  Ry.  &  Elec.  Co.  v.  Butler, 
135  Ala.  388. 

19.  It  is  a  question  for  the  jury  whether 
it  is  negligence  to  run  an  express  train  at  a 
high  speed  into  a  station  at  about  the  time 
a  local  train  Is  receiving  or  discharging 
passengers — Girton  v.  Lehigh  Valley  R.  Co., 
17   Pa.  Super.  Ct.   143. 

20.  The  train  ran  between  the  stationary 
train  and  the  station — Chicago  &  E.  L  R. 
Co.  V.  Taylor,  102  111.  App.  445. 

21.  Hornstein  v.  United  Rys.  Co.  (Mo. 
App.)    70  S.  W.  1105. 

22.  So  held  where  the  passenger  on  a 
north  bound  car  attempting  to  alight  from  it 
in  motion,  was  struck  by  a  south  bound  car 
travelling  at  the  rate  of  twelve  miles  an 
hour — Ackerstadt  v.  Chicago  City  Ry.  Co.,  194 
111.  616. 


470 


CARRIERS  OF  PASSENGERS. 


§  26F 


directed  them  to  do  so."  It  may  be  an  element  of  negligence  for  a  conductor  to 
call  "all  aboard"  at  a  time  when  a  train  in  the  opposite  direction  is  bound  to  pass 
on  an  intervening  track.-*  Signals  provided  for  trains  at  public  crossings  are  not 
applicable  to  passengers  attempting  to  board  trains  at  stations.^'^  A  carrier  may 
be  liable  for  the  failure  of  a  lookout  to  stop  a  train  which  is  backing  over  a  trestle 
in  order  to  avoid  injuries  to  intending  passengers  crossing  such  trestle.^^  Negli- 
gence in  striking  a  passenger  on  a  track  near  a  station  may  be  for  the  jury.^^ 

The  question  of  whether  plaintiff  was  struck  by  a  lump  of  coal  from  a  passing 
train,  rendering  the  carrier  liable,  is  for  the  jury.^^ 

(§  26)  F.  Setting  down  passengers. — The  carrier's  duty  is  discharged  by  offer- 
ing a  safe  place  and  a  reasonable  time  to  alight  at  the  end  of  a  journey.^^  After  an 
intoxicated  passenger  leaves  his  train  at  its  destination,  the  company  is  not  bound 
to  guard  him  further.^"  A  passenger  may  leave  a  train  at  an  intermediate  sta- 
tion for  a  purpose  not  inconsistent  with  his  character  as  a  passenger,  hence  instruc- 
tions that  the  carrier  owes  him  no  duty  while  so  doing  are  erroneous."  A  street 
car  company  may  be  not  negligent  in  failing  to  discover  an  obstacle  attached  to 
the  rear  of  the  car  by  a  trespasser.*^ 

Duty  to  announce  stations  and  direct  as  to  place  to  alight. — It  is  not,  as  a 
matter  of  law,  negligence  for  a  railroad  company  to  fail  to  announce  the  arrival 
of  passenger  trains  at  stations.**  A  porter  is  not  bound  to  the  exercise  of  reason- 
able care  in  directing  passengers  to  alight,  his  duty  being  confined  to  announcing 
names  of  the  stations.^*  Any  employe  may  announce  the  stations.*^  Negligent 
calling  of  a  station  is  the  proximate  cause  of  an  injury  to  one  induced  to  go  on 
the  platform  at  a  point  distant  from  the  station  and  thrown  off  by  a  sudden  jerk.'^* 

Duty  to  avoid  misleading'  passenger. — Failure  to  warn  passengers  that  a  stop, 
made  shortly  after  the  station  is  announced,  is  not  at  the  station,  is  negligence," 
though  it  is  a  question  for  the  jury  if  it  is  negligence  to  stop  a  train  at  a  crossing 
after  a  station  has  been  announced  without  other  warning  to  the  passenger.**  The 
fact  that  the  conductor  has  told  the  passenger  that  the  station  is  near  does  not 


23.  Glrton  v.  Lehigh  VaHey  B.  Co..  17  Pa. 
Super.  Ct.   143. 

24.  Sufficiency  of  evidence  supporting  the 
finding  of  negligence — Gulf,  C.  &  S.  F.  Ry.  Co. 
V.  Morgan.  26  Tex.  Civ.  App.  378. 

25.  A  carrier  is  not  relieved  from  liability 
from  injuring  a  person  crossing  the  track 
at  the  station  to  board  another  train  by  the 
reason  that  the  oncoming  train  has  given 
the  signals  required  by  Rev.  St.  art.  4507 — 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Morgan,  26  Tex. 
Civ.  App.  378. 

20.  The  lookout  warned  the  persons  to 
run  but  made  no  effort  to  stop  the  train 
or  signal  the  engineer — Chicaaro  Terminal 
Transfer  R.  Co.  v.  Kotoski,  199  111.  383. 

27.  The  person  injured  supposed  that  the 
train  which  was  moving  slowly  was  about  to 
stop  though  it  was  not  designed  to  do  so-^ 
Redhing  v.  Central  R.  Co.  (N.  J.  Err.  &  App.) 
54  Atl.   431. 

28.  The  evidence  varied  as  to  the  speed  of 
the  train,  it  being  placed  from  40  to  70  miles 
an  hour,  and  plaintiff  testified  that  he  saw 
the  coal  leave  the  tender,  was  struck  by  It, 
and  it  was  crushed  Into  small  fragments — 
Louisville  &  N.  R.  Co.  v.  Reynolds,  24  Ky.  L. 
R.  1402.  71  S.  "W.  516. 

29.  West  Chicago  St.  R.  Co.  v.  Buckley,  102 
111.  App.   314. 

SO.     Not  liable  where  he  Is  run  over  by  an- 


other train  during  the  night — Nash  v.  South- 
ern Ry.  Co.   (Ala.)   33  So.  932. 

31.  Instruction  was  that  there  was  no  duty 
to  stop  for  any  length  of  time  at  an  inter- 
mediate station  or  to  have  its  depot  lighted 
or  to  stop  at  all — Galveston.  H.  &  S.  A.  Ry. 
Co.  v.  Mathes   (Tex.  Civ.  App.)    73  S.  W.   411. 

32.  Plaintiff  was  tripped  by  a  rope  which 
had  been  attached  to  the  car  while  it  trav- 
elled about  a  mile  and  a  half  but  which  was 
not  discovered  because  of  darkness — La  Fond 
V.  Detroit  Citizens'  St.  Ry.  Co.  (Mich.)  92  N. 
W.   99. 

33.  Houston  &  T.  C.  R.  Co.  v.  Goodyear 
(Tex.  Civ.  App.)   66  S.  W.  862. 

34.  A  passenger  alighted  at  the  wrong 
station  though  the  porter  had  twice  an- 
nounced its  name,  the  carrier's  employes  hav- 
ing no  knowledge  that  plaintiff  was  hard  of 
hearing.  Plaintiff  testified  that  the  porter 
took  her  grip  and  told  her  to  sit  still  until 
the  train  stopped  and  in  this  was  contra- 
dicted by  the  porter — Texas  Midland  R.  Co. 
V.  Terry,  27  Tex.  Civ.  App.  341. 

35.  Duty  is  not  personal  to  the  conductor 
— Southern  Ry.  Co.  v.  O'Bryan.  115  Ga.  65:i. 

36.  Cincinnati,  H.  &  I.  R.  Co.  v.  Worth- 
ington   (Ind.  App.)    65  N.  E.  557,  66  N.  E.  47S. 

37.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Farr. 
70  Ark.  264. 

38.  Larson  V.  Minneapolis  &  St.  L.  R.  Co.. 
85  Minn.  387. 


§  26F 


SETTING  DOWN  PASSENGERS. 


471 


authorize  him  to  leave  a  moving  train  in  the  dark.^^  Where  a  passenger  unneces- 
sarily alights  to  change  cars,  there  being  proper  coaches  attached  to  the  train,  the 
conductor  is  negligent  in  having  failed  to  inform  him  of  such  fact.^° 

Duty  to  avoid  carrying  passenger  by  station. — The  carrier  is  liable  for  injuries 
received  by  a  passenger  through  being  set  down  at  a  wrong  station,"  or  being  car- 
ried by  his  station,  and  is  not  excused  by  the  fact  that  the  conductor  does  not 
know  of  the  passenger's  presence  on  the  train,*^  but  there  may  be  no  liability  for 
the  accidental  carrying  by  of  a  passenger  riding  on  a  freight  train.*^  The  carrier 
is  negligent  if  an  employe,  after  instructing  a  passenger  to  alight,  fails  to  stop 
the  train  to  enable  him  to  do  so  in  safety.*^  The  passenger  must  exercise  ordinary 
care  to  assure  himself  that  the  train  he  enters  is  the  proper  one;  it  is  not  sufficient 
that  he  is  received  without  protest  and  does  not  know  that  the  train  does  not  stop 
at  the  station  he  desires  to  reach. *^ 

Duty  to  provide  safe  place  to  alight. — The  carrier  must  not  stop  at  a  place 
unsuitable  for  alighting,  though  convenient  for  its  employes.**^  The  question  of 
suitableness  is  for  the  jury.*''  "\^niere  a  carrier  has  failed  to  provide  a  proper  place 
to  alight,  it  is  not  relieved  from  liability  by  the  fact  that  a  passenger  between  the 
tracks  is  struck  by  the  train  of  another  company.*® 

Duty  to  assist  passenger. — In  ordinary  circumstances,  the  carrier  is  not  bound 
to  assist  the  passenger  in  alighting,  though  if  it  know  of  an  infirmity  it  should 
render  reasonable  assistance,*®  as  where  a  female  passenger  encumbered  with  bag- 
gage and  children  has  requested  assistance. ^'^  The  duty  is  a  question  for  the  jury,^^ 
as  is  the  duty  to  provide  a  stool  for  alighting  passengers.^^  Failure  to  furnish  a 
portable  step  is  not  negligence  where  the  distance  from  the  car  step  to  the  ground 
is  not  further  than  usual,  and  a  large  number  of  persons  have  previously  alighted 
without  accident."  Placing  a  stool  on  ground  so  soft  that  the  stool  overturns  when 
stepped  on  may  be  negligence.^* 

Starting  while  passenger  is  alighting. — A  carrier  is  liable  for  failure  to  stop 
Bufficiently  long  to  allow  passenger  to  alight  or  if  it  start  with  knowledge  that  he 
is  attempting  to  do  so/^  even  though  its  train  is  late.''^     The  reasonableness  of  the 


39.  Where  a  person  on  a  train  not  stop- 
ping at  his  destination,  is  told  that  the  train 
will  slow  up  there  and  he  attempts  to  g-et  ofE 
while  the  train  Is  crossing  a  high  trestle  at  a 
rate  of  about  25  miles  an  hour,  the  carrier  is 
not  negligent  though  the  conductor  told  him 
they  were  nearly  at  the  station  and  beck- 
oned him,  but  when  the  passenger  got  to 
the  coach  door  the  conductor  was  not  in 
sight  and  the  passenger  swung  off  in  the 
dark — Illinois  Cent.  R.  Co.  v.  Kanberry,  23 
Ky.  L.  R.   1867,   66  S.  W.  417. 

40.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Shelton 
(Tex.  Civ.  App.)    69  S.  W.   655. 

41.  International  &  G.  N.  R.  Co.  v.  Samp- 
son  (Tex.  Civ.  App.)    64  S.  W.   692. 

42.  Twelve  year  old  girl  carried  some  dis- 
tance past  station — Rawlings  v.  Wabash  R. 
Co.    (Mo.   App.)    71  S.  W.   535. 

43.  Plaintiff  desired  to  get  off  at  a  cross- 
ing. She  was  on  a  long  freight  train  and 
the  conductor  could  not  signal  the  engineer 
in  time  to  stop  at  the  desired  point  but  stop- 
ped and  assisted  her  to  alight  at  a  crossing 
three  quarters  of  a  mile  further.  There  was 
no  showing  of  special  damages — Smith  v. 
Wilmington  &  W.  R.  Co..  130  N.  C.  304. 

44.  Instruction  was  given  with  knowledge 
that  the  platform  was  not  well  lighted  and 
there    was    considerable    distance    thereto — 


Gulf,  C.  &  S.  P.  Ry.  Co.  V.  Shelton   (Tex.  Civ. 
App.)   69  S.  W.   655. 

45.  St.  Louis  S.  W.  Ry.  Co.  v.  Campbell 
(Tex.  Civ.  App.)   69  S.  W.  451. 

46.  Simmons  v.  Oregon  R.  Co.,  41  Or.  151 
69  Pac.  440,  1022. 

47.  Question  of  whether  hole  in  street 
made  the  place  obviously  unsafe  and  was  the 
cause  of  injury — Sweet  v.  Louisville  Ry.  Co., 
23  Ky.  L.  R.  2279,  67  S.  W.  4.  Question  of 
whether  an  injury  by  reason  of  a  defective 
pavement,  which  the  carrier,  by  municipal 
ordinance,  was  required  to  keep  in  repair, 
is  the  result  of  negligence — Fielders  v.  North 
Jersey  St.  Ry.  Co.,  67  N.  J.  Law,   76. 

48.  Chicago  Terminal  Transfer  R.  Co.  v. 
Schmelling,   197  111.  619. 

49.  Young  V.  Missouri  Pac.  Ry.  Co.,  93  Mo. 
App.  267. 

50.  Missouri,  K.  &  T.  Rv.  Co.  v.  Buchanan 
(Tex.  Civ.  App.)   72  S.  W.  96. 

51.  Southern  Ry.  Co.  v.  Reeves  (Ga.)  42 
S.  E.  1015. 

52.  Missouri,  K.  &  T.  Ry.  Co.  v.  SherrlU 
(Tex.  Civ.  App.)   72  S.  W.   429. 

53.  Young  v.  Missouri  Pac.  Ry.  Co.,  93  Mo. 
App.   267. 

54.  Southern  Ry.  Co.  v.  Reeves  (Ga.)  42 
S.   B.   1015. 

55.  Louisville  &  N.  R.  Co.  v.  Harmon,  23 
Ky.  L.  R.  871,  64  S.  W.  640. 


472 


CARRIERS  OF  PASSENGERS. 


26  F 


time  allowed  is  for  the  jury/^  as  is  the  sufficiency  of  notice  to  change  cars  and 
time  therefor.^^  Where  a  car  is  stopped  at  a  point  customary  for  the  discharge  of 
passengers,  employes  must  exercise  extraordinary  diligence,  before  starting  a  car, 
to  see  if  any  passengers  desire  to  alight  and  to  give  a  reasonable  opportunity  for 
so  doing.^^  The  conductor  is  bound  not  to  signal  the  motorman  to  start  imtil  he 
sees  that  all  passengers  desiring  to  leave  the  car  have  alighted,^"  and,  though  the 
conductor  may  have  been  justified  under  the  circumstances  in  thinking  all  the  pas- 
sengers had  alighted,  a  reasonable  time  for  all  passengers  to  get  ofE  must  never- 
theless have  expired.**  Though  a  car  was  not  stopped  to  discharge  passengers,  the 
carrier  may  be  liable  if  it  start  the  car  with  knowledge  that  a  passenger  is  attempt- 
ing to  alight.^-  The  stop  may  have  been  in  the  middle  of  the  block,"^^  and  where 
tlie  car  is  so  stopped  at  the  request  of  passengers  desiring  to  alight,  the  carrier  must 
use  the  utmost  diligence  for  their  safety,  though  it  was  not  bound  to  make  such  a 
stop.®*  Where  the  speed  of  a  car  is  slackened  merely  to  permit  a  passenger  to  get  on, 
the  conductor  is  not  bound  to  know  that  a  passenger  will  attempt  to  get  off.®'  It  is 
negligence  to  start  a  car  before  the  conductor  sees  that  the  passenger's  skirts  are 
free  from  the  platform,®®  or  to  jerk  or  move  the  car  while  passengers  are  getting 
off,^^  or  to  couple  a  switch  engine  to  a  passenger  train,®*  but  an  acceleration  of  speed 
^vliile  a  passenger  is  on  a  bottom  step  of  a  platform  preparing  to  alight  is  not  neg- 
ligence where  the  intention  to  alight  has  not  been  indicated  to  the  conductor,  though 
from  the  fact  that  he  was  in  the  front  part  of  the  car  collecting  fares  he  could  not 
see  the  passenger  intending  to  alight,®^  though  the  qiiestion  may  be  for  the  jury.''" 
If,  through  the  passenger's  negligence,  she  failed  to  alight  within  a  reasonable  time, 
she  cannot  recover  for  injury  in  attempting  to  alight  without  knowledge  of  defend- 
ant's employes.'* 

Where  a  starting  signal  is  given,  without  the  knowledge  or  authority  of  the 
conductor,  by  some  one  not  in  the  company's  employ,  while  a  passenger  is  alight- 
ing, the  company  is  not  liable.''^ 

Carrier  by  water. — A  carrier  assumes  the  risk  if  it  attempts  to  land  a  passenger 
at  night  while  the  boat  is  in  motion.^' 


56.  St.  Louis  S.  W.  Ry.  Co.  v.  Byers  (Tex.  I 
Civ.  App.)    69  S.  W.   1009. 

57.  Crowded     train,     people     standing     in  ; 
aisles,    front   door   locked   and   other   circum- 
stances— "Walters  v.  Chicago  &  N.  W.  R.  Co., 
113  Wis.  367. 

.^S.     Oliver  v.  Columbia,  N.  &  L.  R.  Co..   65  | 
S.  C.  1.  I 

59.     Where  cars  are  stopped  in  compliance  | 
with  a  city  ordinance  before  reaching  a  grade  | 
crossing — Atlanta    Ry.    Co.    v.    Randall    (Ga.)  j 
43  S.  E.   412:  Ashtabula  Rapid  Transit  Co.  v. 
Holmes.  67  Ohio  St.  153. 

eo.  Bloomington  &  N.  Ry.  v.  Zimmerman, 
101  111.  App.   184. 

61.  "Walters  v.  Chicago  &  N.  W.  R.  Co.,  113 
Wis.  367. 

62.  Stop  to  repair  wire — Berlnger  v.  Du- 
buque St.  Ry.  Co.   (Iowa)   91  N.  W.  931. 

63.  There  had  been  a  failure  to  stop  at 
the  corner  but  car  had  slowed  up  in  such  a 
manner  as  to  clearly  Invite  an  attempt  to 
alight — Betts  V.  "Wilmington  City  Ry.  Co. 
(Del.  Super.)  53  Atl.  358.  See  for  instruction 
where  a  person  attempts  to  alight  while  a 
car  was  stopped  in  the  center  of  a  block — 
Beringer  v.  Dubuque  St.  Ry.  Co.  (Iowa)  91 
N.  W.  931. 

64.  West  Chicago  St.  R.  Co.  v.  Buckley,  102 
111.  App.  314. 

65.  An  instruction  requiring  him  to  ex- 
ercise the  highest  desrree  of  care  and  ascer- 


tain whether  any  other  person  might  be 
getting  on  or  oft,  is  erroneous — Ashtabula 
Rapid  Transit  Co.  v.  Holmes,  67  Ohio  St.  153. 

66.  Evidence  of  negligence  in  a  con- 
ductor's starting  a  car  while  standing  on  the 
skirt  of  a  passenger  who  had  attempted  to 
alight,  held  sufficient — Citizens'  St.  R.  Co.  v. 
Shepherd  (Ind.  App.)  65  N.  E.  765;  Smith  v. 
Kingston  City  R.  Co.,  55  App.  Div.  (N.  Y.) 
145. 

67.  Skelton  v.  St.  Paul  City  Ry.  Co.  (Minn.) 
92  N.  W.  960. 

68.  Though  the  coupling  Is  in  the  usual 
manner  and  with  no  more  force  than  neces- 
sary— Raughley  v.  West  Jersey  &  S.  R.  Co., 
202   Pa.   43. 

69.  Sims  V.  Metropolitan  St.  Ry.  Co.,  65 
App.  Div.    (N.  T.)    270. 

70.  Negligence  in  jerking  a  dummy  train 
while  approaching  a  customary  stopping 
place  and  while  plaintiff  was  standing  on  the 
bottom  step  of  a  platform — Sweet  v.  Bir- 
mingham Ry.  &  Elec.  Co.  (Ala.)  33  So.  8S6. 

71.  Defendant  is  entitled  to  an  Instruction 
to  such  effect  if  a  station  is  distinctly  called 
and  the  passenger  negligently  failed  to  hear 
the  same — Galveston.  H.  &  S.  A.  Ry.  Co.  v. 
Mathes   (Tex.  Civ.  App.)    73  S.  W.   411. 

72.  Krone  v.  Southwest  Missouri  Elec.  Ry. 
Co.  (Mo.  App.)  71  S.  W.  712. 

7.3.     IjB  Blanc  v.  Sweet.  107  La.   355. 


§  26G 


ASSAULTS  BY  EMPLOYES  AND  OTHERS. 


473 


(§  26)  G.  Protection  from  other  passengers  and  train  crew  or  third  persons. — 
A  carrier  is  bound  to  protect  the  passenger's  peace,  comfort  and  personal  safety  from 
other  passengers,  strangers  or  its  servants.'^*  It  is  liable  for  the  acts  of  its  serv- 
ants toward  passengers,  though  not  within  the  scope  or  course  of  their  employ- 
ment.'"* It  is  liable  for  the  malicious  tort  of  a  conductor  in  the  same  manner  as 
an  individual  would  be,^®  and  so  is  liable  to  a  passenger  assaulted  by  the  con- 
ductor,^''  whether  such  assault  constitutes  negligence  or  not,'^^  and  the  act  of  the 
conductor  in  insulting  the  passenger  is  the  act  of  the  carrier.'^^  Liability  exists, 
though  the  assault  is  in  retaliation  for  an  assault  committed  on  him,  or  for  abusive 
words,  or  in  revenge  or  punishment,  and  the  only  case  where  the  rule  is  otherwise 
is  where  the  assault  is  under  a  necessity  to  defend  himself  or  a  passenger  from 
battery  or  in  rightfully  ejecting  a  passenger,^**  though  it  was  held  that  where  the 
passenger's  violence  provoked  an  assault,  a  street  car  company  was  not  liable,^^ 
and  conduct  of  the  passenger  may  be  considered  in  mitigation  of  damages.^^  There 
is  also  a  liability  for  insults  and  violence  of  employes  toward  passengers,^*  such  as 
insulting  language  and  gestures  by  a  motorman  toward  a  passenger  carried  by  her 
destination  against  her  will,**  but  the  carrier  is  not  liable  where  a  conductor  charges 
a  passenger  with  lying,*"  or  where  the  motorman  gets  off  the  car  and  assails  a  passen- 
ger who  has  left  the  car,  deposited  his  bundles  on  the  sidewalk  and  returned  to  the 
car.*'  The  carrier  may  by  its  conduct  ratify  an  assault  by  its  conductor.*^  The 
carrier  is  liable  where  its  agent  locks  a  prospective  passenger  in  the  waiting  room 
over  his  protest,  where  such  act  could  have  been  prevented  with  the  exercise  of 
ordinary  care.** 

Assaults  and  injuries  hy  third  persons. — The  carrier's  employes  must  take  prop- 
er precautions  to  prevent  injuries  to  passengers  from  third  persons  which  they 
know  or  can  know  are  threatened,*®  but  a  carrier  is  not  liable  for  an  assault  on 


74.  Birmingham  Ry.  &  Elec.  Co.  v.  Balrd, 
130  Ala.   334,   54  L.  R.  A.  752. 

75.  Birmingham  Ry.  &  Elec.  Co.  v.  Baird, 
130  Ala.  334,  54  L.  R.  A.  752;  Missouri  Pac. 
Ry.  Co.  V.  DIvinney  (Kan.)  71  Pac.  855.  In 
a  complaint  in  an  action  for  assault  it  need 
not  be  alleged  that  the  act  was  within  the 
scope  of  the  servant's  duty,  It  being  alleged 
that  plaintiff  was  a  passenger  at  the  time — 
Birmingham  Ry.  &  Elec.  Co.  v.  Mason  (Ala.) 
34  So.  207. 

76.  Grayson  v.  St.  Louis  Transit  Co.  (Mo. 
App.)    71   S.  W.   730. 

77.  The  rule  limiting  the  master's  liability 
to  acts  within  the  scope  of  the  servant's  em- 
ployment does  not  apply — Johnson  v.  Detroit, 
Y.  &  A.  A.  Ry.  (Mich.)  90  N.  W.  274;  St.  Louis 
S.  W.  Ry.  Co.  V.  Johnson  (Tex.  Civ.  App.)  68 
S.  W.  58;  Willis  v.  Metropolitan  St.  R.  Co., 
76  App.  Div.    (N.  T.)    340. 

78.  Hence  the  carrier  cannot  complain  of 
an  instruction  requiring  the  facts  consti- 
tuting the  assault  to  constitute  negligence — 
St.  Louis  S.  W.  Ry.  Co.  v.  Johnson  (Tex.  Civ. 
App.)    68   S.  W.   58. 

79.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  La 
Prelle,    27   Tex.  Civ.  App.   496. 

80.  Birmingham  Ry.  &  Elec.  Co.  v.  Baird, 
130  Ala.  334,  54  L.  R.  A.  752;  Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  La  Prelle,  27  Tex.  Civ.  App. 
496. 

81.  James  v.  Metropolitan  St.  Ry.  Co.,  80 
App.  Dlv.    (N.  Y.)   364. 

82.  Grossly  insulting  language  used  to  a 
conductor — Houston  &  T.  Cent.  R.  Co.  v. 
Batchler  (Tex.  Civ.  App.)  73  S.  W.  981;  Gal- 
veston, H.  &  S.  A.  Ry.  Co.  v.  La  Prelle,  27 
Tex.  Civ.  App.    496. 


83.  Murphy  v.  St.  Louis  Transit  Co.,  96  Mo. 
App.  272.  It  is  actionable  for  a  conductor  to 
tell  a  woman  in  a  loud  and  insulting  manner 
so  as  to  be  heard  by  her  children  and  other 
passengers,  "The  idea  of  a  woman  trying  to 
board  a  train  with  her  child  without  a  ticket; 
you  can  go  on  this  time  but  do  not  undertake 
such  a  thing  again."  Such  language  rea- 
sonably supports  an  inference  of  dishonesty, 
and  though  it  should  not  it  is  Insulting  and 
calculated  to  humiliate  and  mortify  whether 
the  conductor  intended  to  charge  her  with 
dishonesty  or  not — Texas  &  P.  Ry.  Co.  v. 
Tarkington,  27  Tex.  Civ.  App.  353. 

84.  San  Antonio  Traction  Co.  v.  Crawford 
(Tex.  Civ.  App.)   71  S.  W.  306. 

85.  In  answer  to  a  passenger's  statement 
that  his  son  was  nine  years  old,  the  con- 
ductor said;  "You  can't  give  me  a  stiff  like 
that,  he  is  fourteen  years  old" — Grayson  v. 
St.  Louis  Transit  Co.  (Mo.  App.)  71  S.  W.  730. 

86.  The  act  not  being  within  the  scope  of 
the  motorman's  employment — Palmer  v 
Winston-Salem  Ry.  &  Elec.  Co.,  131  N.  C.  250. 

87.  Ratification  of  the  act  of  a  conductor 
in  assaulting  a  passenger  may  be  shown  by 
the  fact  that  the  company  paid  his  fine  there- 
for, defended  him  by  its  attorneys,  and  re- 
tained him  in  their  employ,  the  general  man- 
ager having  been  present  at  the  trial — 
Denison  &  S.  Ry.  Co.  v.  Randell  (Tex.  Civ. 
App.)    69    S.    W.   1013. 

88.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Wilson, 
70  Ark.  136. 

89.  Employes  are  not  charged  with  knowl- 
edge that  tramps  stealing  a  ride  will,  if 
brought  into  the  car,  make  an  assault,  while 
endeavoring  to  escape,  upon  passengers  who 


474 


CARRIERS  OF  PASSENGERS. 


§  26H 


a  passenger  in  its  train  during  the  absence  of  the  train  crew  at  dinner  at  a  regular 
eating  station.®"  The  carrier  is  liable  for  injury  sustained  by  a  prospective  pas- 
senger at  a  waiting  room  through  failure  to  exercise  ordinary  care  to  protect  him  from 
injury  by  disorderly  persons  there  congi-egated,  which  might  have  been  prevented  or 
lessened  by  the  agent  in  charge.®^ 

Where  plaintiff's  evidence  tends  to  establish  that  he  had  been  insulted  and 
assaulted  by  fellow  passengers,  the  conductor  making  no  effort  to  prevent  their 
acts,  his  complaint  should  not  be  dismissed.®^ 

A  street  car  company  is  not  guilty  of  negligence  in  attempting  to  operate  its 
cars  during  a  strike,  and  need  exercise  only  ordinary  care  and  prudence  to  guard 
against  the  lawless  acts  of  third  persons  not  under  its  direction  or  control.®^ 

The  carrier  may  not  be  chargeable  with  the  negligent  performance  of  acts  by 
third  persons  at  the  direction  of  employes.®* 

Securing  arrest  of  passenger. — Where  the  rules  give  conductors  authority  to 
call  policemen,  the  company  is  liable  for  wrongful  act  of  a  conductor  in  calling  a 
policeman  to  arrest  a  passenger  on  a  car.®^ 

Protection  of  passenger  from  arrest. — Though  the  carrier  is  bound  to  use  ex- 
traordinary diligence  to  protect  passengers  from  violence  or  injury  from  third  per- 
sons, it  need  not  inquire  into  the  legality  of  their  arrest  by  an  officer  of  the  law, 
and  is  not  liable  for  failure  to  prevent  an  arrest  of  a  passenger  or  to  refuse  to  stop 
the  train  to  allow  him  to  be  removed  by  the  officer,  nor  is  it  bound  to  see  that 
the  officer  uses  only  the  force  necessary  to  make  the  arrest.®^ 

Third  person  putting  child  off  at  wrong  station. — The  fact  that  a  conductor 
promised  to  put  a  child  off  at  its  proper  destination  does  not  render  the  carrier 
liable  where  she  is  assisted  from  the  train  by  another  person  before  she  reaches 
her  destination.®'' 

(§  26)  H.  Contributory  negligence  of  passenger. — The  law  of  the  state  wherein 
the  accident  occurred  with  regard  to  contributory  negligence,  as  admitted  by  the 
pleadings,  may  be  submitted  in  instructions.®^  Slight  contributory  negligence  will 
bar  recovery,®®  but  only  ordinary  care  is  required  of  the  passenger,^  the  test  being 
whether  a  person  of  ordinary  prudence  in  the  same  situation  and  with  the  same 
knowledge  would  have  done  the  alleged  negligent  act.^     The  passenger  is  not  bound 


are  not  interfering  with  such  escape — Savan- 
nah. F.  Sz  W.  Ry.  Co.  V.  Boyle,  115  Ga.  836. 

90.  The  assault  was  not  one  which  could 
be  reasonably  anticipated — Thweatt  v.  Hous- 
ton. E.  &  W.  T.  Ry.  Co.  (Tex.  Civ.  App.)  71 
S.  W.  976. 

91.  St.  Louis.  I.  M.  &  S.  Ry.  Co.  v.  Wilson, 
70  Ark.  136.  A  carrier  is  liable  for  damages 
sustained  by  a  female  passenger  in  its  sta- 
tion through  its  allowance  of  an  intoxicated 
person  to  enter,  use  indecent  language  and 
assault  her  with  a  knife — Houston  &  T.  C.  R. 
Co.  v.  Phillio  (Tex.)   69  S.  W.  994. 

92.  Koch  V.  Brooklyn  Heights  R.  Co.,  75 
App.  Div.   (N.  T.)   282. 

93.  It  was  not  negligence  justifying  re- 
covery against  the  carrier  to  fail  to  pull  down 
the  car  blinds  or  stretch  canvas  over  the  out- 
side to  protect  a  passenger  from  missiles 
thrown  by  a  mob  of  strikers — Fewings  v. 
MendenhaU    (Minn.)    93  N.   W.   127. 

94.  A  carrier  is  not  guilty  of  negligence 
where  a  passenger's  hand  is  injured  by  the 
closing  of  a  car  door  by  a  third  person  at  the 
direction  of  a  brakeman  who  has  his  back 
turned  toward  the  door  and  passenger. — 
Brineger  v.  Louisville  &  N.  R.  Co.,  24  Ky.  L. 
R.   1973,  72  S.  W.  783. 


95.  Grayson  v.  St.  Louis  Transit  Co.  (Mo. 
App.)    71   S.  W.   730. 

96.  In  this  case  the  carrier  had  no  notice 
that  the  arrest  was  illegal — Brunswick  &  "W. 
R.  Co.  v.  Ponder  (Ga.)   43  S.  E.  430. 

97.  Louisville  &  N.  R.  Co.  v.  Jordan,  23 
Ky.  L.  R.  1730,  66  S.  W.   27. 

98.  Louisville  &  N.  R.  Co.  v.  Harmon,  23 
Ky.  L.  R.  871,  64  S.  W.  640. 

99.  Passenger  jumping  from  moving  train 
and  slipping  on  greasy  platform — New- 
comb  v.  New  York  Cent.  &  H.  R.  R.  Co..  169 
Mo.    409. 

1.  Carroll  v.  Charleston  &  S.  R.  Co.,  65  S. 
C.  278. 

2.  Clerc  v.  Morgan's  L.  &  T.  R.  &  S.  S. 
Co.,  107  La.  370.  An  instruction  that  the 
measure  of  care  against  accident  which  one 
must  take  to  avoid  responsibility,  is  that 
which  a  person  of  ordinary  prudence  and 
caution  would  vise  if  his  interests  were  to  be 
affected  and  the  whole  risk  were  his  own.  Is 
not  erroneous  as  imposing  on  plaintiff  a  high- 
er degree  of  care  than  she  was  bound  to  ex- 
ercise— Citizens'  St.  R.  Co.  v.  Shepherd  (Ind 
App.)   65  N.  E.   765. 


§26H 


CONTRIBUTORY  NEGLIGENCE  OF  PASSENGER. 


475 


to  do  things  which  in  the  exercise  of  ordinary  care  do  not  occur  to  him  or  seem 
feasible.^  If  carrier  and  passenger  are  equally  at  fault,  the  passenger  cannot  re- 
cover,* but  negligence  of  the  passenger  in  regard  to  a  matter  not  the  cause  of  the 
injury  will  not  preclude  recovery."*  A  boy  ten  years  old  may  be  negligent,**  or  one 
of  sixteen,'^  but  a  plaintiff  sixteen  years  of  age  cannot  be  held  to  know  the  seat- 
ing accommodations  of  cars.®  In  some  states  contributory  negligence  must  be 
based  on  acts,  showing  a  willful  disregard  of  danger,  committed  under  circum- 
stances making  them  obviously  perilous.^  Under  statutes  requiring  criminal  neg- 
ligence, gross  negligence  amounting  to  a  reckless  disregard  of  safety,  a  willful  in- 
difference to  consequences  likely  to  follow,  is  intended.^"  Where  drunlcenness  is 
the  proximate  cause  of  injury,  there  can  be  no  recovery.^^ 

Acts  due  to  impulse  of  sudden  danger. — Wliere  an  act  is  incited  by  sudden 
peril,  the  imputation  of  negligence  may  be  removed  therefrom,^^  and  where  the 
passenger  has  been  put  into  a  position  of  danger,  preventing  the  exercise  of  clear 
judgment,  he  is  bound  only  to  ordinary  care  under  the  circumstances;^^  so  one 
may  leave  a  moving  street  car  without  negligence  to  avoid  a  merely  apparent  dan- 
ger, and  need  not  notify  the  persons  in  charge  before  jumping,^*  but  absence  of 
fault  cannot  be  inferred  from  the  general  and  known  disposition  of  men  to  take 
care  of  themselves  and  keep  out  of  the  way  of  difficulty.^^  Where  a  driver  passes 
on  to  a  railroad  crossing  without  looking  for  trains,  his  negligence  is  the  proximate 
cause  of  an  injury  to  a  passenger  who  jumps  to  avoid  an  apparently  imminent  col- 
lision.^® 

Acts  done  at  direction  of  employ es.^'^ — An  attempt  to  board  a  moving  train  at 
the  direction  of  an  employe,  which  does  not  lead  the  person  into  apparent  danger 


8.  West  Chicago  St.  R.  Co.  v.  Home,  100 
in.  App.  259. 

4.  Central  of  Georgia  Ry.  Co.  v.  McKin- 
iiey,  116  Ga.  113;  Doolittle  v.  Soutliern  Ry., 
62  S.  C.  130. 

5.  The  fact  that  a  person  is  riding  on  a 
bumper  will  not  preclude  a  recovery  where 
he  Is  not  injured  by  that  reason  but  because 
he  had  to  jump  ofE  to  avoid  a  collision — 
Paquin  v.  St.  Louis  &  S.  Ry.  Co.,  90  Mo. 
App.  118;  Doolittle  v.  Southern  Ry.,  62  S.  C. 
130. 

6.  In  protruding  his  head  from  a  car  win- 
dow— Knauss  v.  Lake  Erie  &  W.  R.  Co.,  29 
Ind.    App.    216. 

7.  Extending  his  person  beyond  the  line  of 
the  car — Benedict  v.  Minneapolis  &  St.  L.  R. 
Co.,  86  Minn.  224,  57  L.  R.  A.  639. 

S.  A  boy  16  years  old  who  passes  through 
seven  cars  of  an  excursion  train,  composed  of 
14  or  15  cars,  without  being  able  to  obtain  a 
seat,  may  be  found  to  have  been  in  the  ex- 
ercise of  due  care,  if  the  jury  find  that 
plaintiff  believed  that  the  cars  ahead  were  as 
crowded  as  those  through  which  he  went — 
Farnon  v.  Boston  &  A.  R.  Co.,  180  Mass.   212. 

9.  Chicago,  B.  &  Q.  R.  Co.  v.  Winfrey 
(Neb.)  93  N.  W.  526. 

10.  Comp.  St.  c.  72,  art.  1,  §  3 — Chicago,  B. 
&  Q.  R.  Co.  V.  Winfrey   (Neb.)    93  N.   W.   526. 

11.  The  passenger  acted  with  prudence  in 
taking  a  position  on  the  car  platform  but 
would  not  have  fallen  but  for  his  drunken- 
ness—Houston &  T.  C.  R.  Co.  v.  Bryant  (Tex. 
Civ.   App.)    72  S.  W.  885. 

12.  An  instruction  to  such  effect  was  held 
proper  where  a  person  jumped  from  a  derail- 
ed car,  though  had  he  remained  therein  he 
would    have    suffered    little    or    no    injury — 


Western  Maryland  R.  Co.  v.  State,  95  Md.  637. 
The  fact  that  an  old  and  infirm  passenger 
thrown  by  a  sudden  start  of  the  car  while 
alighting  catches  hold  of  a  running  board  and 
is  dragged  does  not  show  contributory  neg- 
ligence, his  act  being  due  to  the  impulse  of 
sudden  danger — Indiana  Ry.  Co.  v.  Maurer 
is  dragged  does  not  show  contributory  neg- 
ligence for  a  young  girl  to  continue  her  hold 
on  a  hand  rail  though  the  car  starts  while 
she  is  boarding  it,  and  though  she  is  dragged 
some  distance — Schoenfeld  v.  Metropolitan  St. 
Ry.  Co.,  40  Misc.    (N.  Y.)   201. 

13.  Instruction  that  if  plaintiff  stepped  to 
the  ground  voluntarily  and  without  necessity 
while  the  car  w^as  in  motion,  slie  could  not 
recover,  is  erroneous,  where  the  evidence 
was  that  plaintiff  was  crippled  in  her  left  leg 
and  while  putting  her  left  foot  on  the 
ground  and  holding  to  the  handle  bar  of  the 
car,  the  car  started — United  Rys.  &  Elec.  Co. 
V.   Beidelman,   95  Md.   480. 

14.  Jumping  from  a  moving  car  may  be 
excused  by  the  fact  that  the  passenger  saw 
an  engine  coming  at  a  high  rate  of  speed,  a 
collision  being  apparently  imminent  though 
there  w^as  no  actual  collision — Selma  St.  & 
Suburban  Ry.  Co.  v.  Owen,  132  Ala.  420. 

15.  Instruction  to  contrary  effect  is  not 
justified  in  a  case  where  a  drover  was  killed 
by  jumping  to  avoid  injury  on  the  derailment 
of  a  train — Western  Maryland  R.  Co.  v.  State, 
95  Md.  637. 

16.  Selma  St.  &  Suburban  Ry.  Co.  v.  Owen, 
132  Ala.   420. 

17.  It  is  a  question  for  the  jury  where  a 
passenger  ignorant  of  railroad  travel  alights 
from  a  moving  train  in  obedience  to  a  sup- 
posed invitation  of  an  employe — Doolittle  v. 
Southern  Ry.,  62  S.  C.  130. 


47b 


CARRIERS  OF  PASSENGERS. 


§   26H 


such  as  a  prudent  person  would  not  assume,  is  not  contributory  negligence,  and  it 
cannot  be  stated  as  a  matter  of  law  that  an  attempt  to  board  a  train  in  motion 
is  negligence,^^  unless  the  danger  is  so  obvious  that  it  would  be  undertaken  only 
by  a  reckless  man.^^  One  who  neglects  to  alight  while  train  is  stopped,  and  steps 
off  after  it  starts  at  the  advice  of  a  brakeman,  is  negligent.-"  It  is  not  negligence 
to  alight  from  a  slowly  moving  train  in  the  dark,  on  the  station  platform,  at  the 
request  of  an  employe;  it  may  be  shown  that  there  was  no  offer  to  stop  or  caution 
the  passenger  not  to  alight;  and  the  fact  that  a  passenger  is  asleep  and  does  not 
hear  an  announcement  as  to  change  of  cars  does  not  relieve  the  carrier,  where  the 
passenger  has  been  misled  by  information  from  the  conductor  that  a  change  of 
cars  was  necessary.^^  A  passenger  may  presume  that  a  member  of  a  switching 
crew  in  charge  of  a  train  has  authority  to  direct  him  to  alight.^^ 

Approaching  car  or  irain.-^ — One  who  signals  an  approaching  car  is  not  negli- 
gent per  se  in  failing  to  look  behind  her  where  she  starts  diagonally  across  the 
tracks  in  front  of  the  car  to  its  stopping  place.^*  The  question  of  whether  a  pas- 
senger crossing  a  railroad  track  to  take  a  train  is  negligent  is  for  the  jur}^  though 
tiiere  was  a  space  between  two  of  the  tracks  on  which  he  might  have  walked,^* 
and  it  is  not  negligence  per  se  to  fail  to  look  and  listen  when  crossing  an  intervening 
track  to  a  train  standing  at  a  station  to  receive  passengers.^®  An  attempt  to  board 
a  train  from  the  wrong  side  is  not  negligent  per  se,^^  nor  an  attempt  to  pass  in  front 
of  a  slowly  approacliing  train  at  a  station.'^  The  passenger's  use  of  a  platform  at 
a  station  must  be  limited  to  the  purposes  for  which  it  is  manifestly  adapted,  and 
he  should  keep  such  distance  from  passing  trains  as  to  avoid  being  struck  by  usual 
projections.-^  Street  car  passengers  are  not  bound  to  look  out  for  dangerous  holes 
near  the  entrance  of  the  cars  or  to  be  on  the  lookout  for  the  removal  of  former 
safe  guards.^"  One  with  knowledge  that  a  step  must  be  lowered  before  a  car  is 
ready  to  receive  passengers,  who  attempts  to  board  it  before  the  step  is  lowered, 
takes  the  risk  of  being  struck  thereby.^^ 

Boarding  moving  train  or  cars. — Whether  a  person  is  negligent  in  getting  on 
a  moving  train  is  a  question  for  the  jury  under  the  entire  evidence.^^  It  is  not 
contributory  negligence  per  se  to  board  a  moving  street  car,^^  unless  under  special 


18.  Pence  v.  "Wabash  R.  Co.,  116  Iowa,  279. 
One  who  attempts  to  board  a  moving  train  at 
the  direction  of  the  conductor,  having  alight- 
ed at  an  intermediate  station,  may  be  guilty 
of  negligence,  though  the  train  is  a  freight. 
It  i.s  a  question  for  the  .iury,  the  direction  of 
the  conductor,  the  speed  of  the  train,  and 
otlier  circumstances  being  considered — Illi- 
nois Cent.  R.  Co.  v.  Glover,  24  Ky.  L.  R.  1447, 
71  S.  W.  630.  Where  plaintiff  alleges  that 
he  was  in  the  exercise  of  ordinary  care  in 
getting  on  a  moving  train,  he  may  show  that 
he  acted  at  the  direction  of  the  conductor — 
Chicago  &  A.  R.  Co.  v.  Gore,  202  111.  18S. 

19.  Chicago  &  A.  R.  Co.  v.  Gore,  202  111. 
188. 

20.  Pittsburgh.  C,  C.  &  St.  L.  Ry.  Co.  v. 
Gray,  28  Ind.  App.  588. 

31.  Gulf.  C.  &  S.  P.  Ry.  Co.  v.  Shelton 
(Tex.  Civ.  App.)   69  S.  W.  653,  70  S.  W.  359. 

22.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Shelton 
(Tex.  Civ.  App.)   69  S.  W.  653,  70  S.  W.   359. 

23.  The  question  of  whether  one  walking 
along  a  platform  to  secure  a  seat  in  an  open 
car  is  negligent  is  for  the  Jury — Haselton  v. 
Portsmouth,  K.  &  T.  St.  Ry.,  71  N.  H.   589. 

24.  Copeland  v.  Metropolitan  St.  Ry.  Co., 
78  App.  Div.  (N.  Y.)   418. 

25.  Chicago,  St.  P..  M.  &  O.  Ry.  Co.  v.  Lag- 
erkrans  (Neb.)  91  N.  W.  358. 


26.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Morgan,  26 
Tex.  Civ.  App.  378. 

27.  Question  for  the  jury  where  plaintiff 
owing  to  the  crowd  at  the  station  was  com- 
pelled to  go  to  the  outside  of  the  track  on 
the  crowd  being  parted  to  make  way  for  the 
train — Begley  v.  Pennsylvania  R.  Co.,  201  Pa. 
84. 

28.  Redhing  v.  Central  R.  Co.  (N.  J.  Err.  & 
App.)    54   Atl.    431. 

29.  Dotson  V.  Erie  R.  Co.  (N.  J.  Err.  & 
App.)    54   Atl.    827. 

30.  Lake  St.  El.  R.  Co.  v.  Burgess.  99  111. 
App.  499.  An  instruction  declaring  without 
qualification  that  a  person  who  steps  into  a 
hole  or  on  a  rotten  board  in  a  platform  is 
negligent  if  she  fails  to  look  or  take  pre- 
cautions to  ascertain  the  danger  should  not 
be  given — Indianapolis  St.  Ry.  Co.  v.  Robin- 
son, 157  Ind.  414. 

31.  Clark  v.  Metropolitan  St.  Ry.  Co.,  68 
App.  Div.   (N.  Y.)   49. 

32.  Chicago  &  A.  R.  Co.  v.  Gore,  96  111. 
App.    553. 

33.  An  instruction  that  it  is  imprudent  to 
board  a  moving  public  vehicle  should  not  be 
given — Liobsenz  v.  Metropolitan  St.  Rv.  Oo.. 
72  App.  Div.  (N.  Y.)  181;  South  Chicago  City 
Ry.  Co.  V.  Dufresne.  200  111.  456.  102  111.  App. 
493;  Birmingham  Ry.  &  Elec.  Co.  v.  Brannon. 


^2611 


CONTRIBUTORY  NEGLIGENCE  OF  PASSENGER. 


477 


circumstances."  Slowing  of  a  car  at  a  street  crossing  is  not  an  invitation  to  board 
it  before  it  stops. ^^ 

Boarding  crowded  car. — It  is  a  question  for  the  jury  whether  one  who,  before 
he  starts  on  a  journey,  is  aware  of  the  crowded  condition  of  the  train,  is  not  con- 
tributorily  negligent  in  failing  to  leave  it.^^ 

Riding  in  dangerous  position. — A  passenger  who  continues  in  a  dangerous  po- 
sition with  Imowledge  that  it  is  so,  or  that  the  rules  of  the  carrier  forbid  him  to 
be  there,  is  as  a  rule  held  negligent,  unless  the  negligence  of  the  carrier  has  been 
such  as  to  be  the  controlling  or  proximate  cause  of  the  injury.  Illustrative  cases 
are  grouped  in  the  notes.^^  The  rule  does  not  apply  to  an  intoxicated  person  ac- 
cepted as  a  passenger.'* 

Riding  on  platform  or  running  hoard  of  street  car. — One  is  not  per  se  negli- 
gent who  stands  on  a  street  car  platform,  knowing  that  it  is  overcrowded,  unless 
he  has  knowledge  of  other  facts  exposing  him  to  danger,'^  but  a  rule  that  passengers 
ride  on  front  platforms  of  street  cars  at  their  own  risk  is  reasonable,  and  if  knowino-- 
ly  violated  by  a  plaintiff,  precludes  a  recovery,*^  and  is  not  waived  by  the  fact  that 
other  passengers  are  on  the  front  platform  when  plaintiff  enters  it.*^  It  is  not 
per  se  negligence  to  stand  or  walk  on  the  running  board  of  a  crowded  street  car,^- 
but  a  person  riding  on  the  side  steps  of  a  street  car,  where  there  is  room  inside. 


132  Ala.  431.  Car  moving-  slower  than  a  man 
can  walk — Kimber  v.  Metropolitan  St.  Ry. 
Co.,  69  App.  Div.   (N.  Y.)    353. 

34.  "Where  all  the  witnesses  except  plain- 
tiff testify  that  he  was  injured  while  trying 
to  board  a  moving  car  on  a  curve,  a  verdict 
for  plaintiff  must  be  set  aside — Wolf  v. 
Metropolitan  St.  Ry.  Co.,  115  N.  Y.  St.  Rep. 
257. 

35.  The  jury  should  be  so  instructed  In 
an  action  where  plaintiff  is  injured  by  a 
jerk  of  a  slowly  moving  car  which  he  has 
stepped  on  after  signaling  It — Monroe  v. 
Metropolitan  St.  R.  Co.,  79  App.  Div.  (N.  Y.) 
587. 

.3G.  Texas  &  P.  Ry.  Co.  v.  Rea,  27  Tex.  Civ. 
App.    549. 

37.  Held  negHg-ence  per  se.  Riding  on 
bumper  of  street  car  after  warning — Nieboer 
v.  Detroit  Elec.  Ry.,  128  Mich.  486.  Sitting  in 
a  chair  in  caboose,  knowing  that  train  is 
switching — Freeman  v.  Pere  Marquette  R. 
Co.  (Mich.)  91  N.  W.  1021;  Chicago,  R.  I.  & 
P.  Ry.  Co.  v.  Buie  (Tex.  Civ.  App.)  73  S.  W, 
853.  Stepping  onto  a  forward  platform  from 
a  car  which  was  to  be  separated  from  the 
train  and,  on  hearing  a  brakeman  call  "Look 
out,"  stepping  back  and  falling  between  the 
cars — Butts  v.  Cleveland,  C,  C.  &  St.  L.  H.  Co. 
(C.  C.  A.)  110  Fed.  329.  Standing  In  an  open 
door  with  hand  against  the  casing.  Injury 
received  through  the  closing  of  the  door — 
Brlneger  v.  Louisville  &  N.  R.  Co.,  24  Ky.  L. 
R.    1973,    72    S.   W.    783. 

Held  not  neglisrence  per  se.  Being  in  cat- 
tle car  while  train  is  at  a  stand  though  there 
is  no  right  to  be  there  while  the  train  is  in 
motion — Bolton  v.  Missouri  Pac.  Ry.  Co.  (Mo.) 
72  S.  "W.  630.  Remaining  In  furniture  car 
■\vhile  it  is  being  switched,  because  of  lack  of 
knowledge  as  to  when  the  journey  will  be  re- 
sumed— Texas  &  P.  Ry.  Co.  v.  Adams  (Tex. 
Civ.  App.)  72  S.  "W.  81.  Standing  in  car  with 
goods  during  switching — Texas  &  P.  Ry.  Co. 
V.  Adams  (Tex.  Civ.  App.)  72  S.  W.  81.  Be- 
ing on  bow-deck  of  a  barge  exposed  to  Injury 
from  a  towing  hauser — Hill  v.  Starin,  65  App. 
Div.    (N.   Y.)    361.     White   person  riding  In  a 


car  reserved  for  colored  passengers  though 
violating  the  rules  of  the  company  and  the 
direction  of  the  conductor — Florida  Cent.  & 
P.  R.  Co.  v.  Sullivan,  120  Fed.  799.  Failure 
to  secure  a  seat,  where  there  were  but  a  few 
vacant  seats  In  the  front  cars  of  a  train  of 
fourteen  and  plaintiff  passed  through  seven 
coaches  looking  for  a  seat  in  vain — Farnon 
V.  Boston  &  A.  R.  Co.,  180  Mass.  212.  Passing 
from  a  smoking  car  to  another  coach  and 
stepping  down  on  the  top  step  of  the  car 
holding  by  the  hand  rail — St.  Louis,  I.  M.  & 
S.   Ry.  Co.  V.  Leftwich,   117  Fed.   127. 

38.  Negligence  of  the  carrier  in  the  care 
of  an  Intoxicated  person,  accepted  by  it  as  a 
passenger,  is  not  excused  by  the  passenger's 
negligence  in  occupying  a  dangerous  position 
— Wheeler  v.  Grand  Trunk  Ry.  Co.,  70  N  H 
607,  54  L.  R.  A.  655, 

39.  Passenger  riding  on  a  front  platform 
with  others  and  thrown  off  by  the  jostling 
of  the  crowd  through  the  driver's  attempt  to 
apply  brakes — Cattano  v.  Metropolitan  St.  R 
Co.,   173  N.  Y.  565. 

40.  Cincinnati,  i,.  &  A.  Elec.  St.  R.  Co.  v. 
Lohe  (Ohio)  67  N.  E.  161.  Riding  on  platform 
of  interurban  car.  there  being  vacant  seats 
within  the  car — Cincinnati,  L.  &  A.  Elec.  St. 
R.  Co.  v.  Lohe   (Ohio)    67  N.  E.  161. 

41.  Burns  v.  Boston  El.  Ry.  Co.  (Mass.)  66 
N.  E.   418. 

43.  Sheeron  v.  Coney  Island  &  B.  R.  Co., 
78  App.  Div.  (N.  Y.)  476;  Anderson  v.  City 
Ry.  Co.,  42  Or.  505.  71  Pac.  659.  Riding  upon 
the  running  board  facing  in — Purington- 
Kimball  Brick  Co.  v.  Eckman,  102  111.  App. 
183.  Passenger  tlirown  back  against  a  pole 
as  the  car  rounded  a  curve — Hesse  v.  Meri- 
den,  S.  &  C.  Tramway  Co.  (Conn.)  54  Atl.  299. 
A  large  man  walking  back  on  the  running 
board  of  an  open  car  is  not  negligent  per  se 
so  as  to  preclude  a  recovery  if  struck  by  the 
girder  of  a  bridge  near  the  track,  though  the 
only  obstruction  in  the  centre  aisle  was  the 
dresses  of  lady  passengers  sitting  near  it — 
San  Antonio  Traction  Co.  v.  Bryant  (Tex. 
Civ.  App.)  70  S.  W.  1015. 


478 


CARRIERS  OF  PASSENGERS. 


§26H 


assumes  the  risk  of  being  struck  by  poles  near  the  track.*'  One  passing  vacant  seats 
while  passing  along  the  running  board  of  an  open  car  is  negligent  if  struck  by 
a  passing  car,  though  the  car  that  struck  plaintiff  was  a  new  one  of  greater  width 
than  old  ones,  and  plaintiff  cannot  show  that  he  had  been  on  the  running  board 
on  previous  occasions  without  injury."  Where  a  passenger  leaning  outward  from 
a  running  board  strikes  a  wagon,  the  conductor's  negligence  in  increase  of  speed 
is  not  the  cause  of  the  injury.*^ 

Riding  on  platform  of  railroad  train. — If,  without  reasonable  excuse,  a  passenger 
rides  in  a  place  not  designed  for  the  carriage  of  passengers,  such  as  a  car  platform 
or  steps,  he  is  negligent;*®  though  elsewhere  it  is  held  that  it  is  not  negligence 
per  se  to  stand  on  the  platform  of  a  moving  car,*^  though  in  violation  of  a  rule 
of  the  company.*^  The  rules  of  negligence  applicable  to  street  cars  do  not  apply 
to  persons  on  the  platforms  of  interurban  electric  railroad  cars.*®  A  petition  which 
does  not  show  that  plaintiff  was  not  unnecessarily  and  voluntarily  riding  on  a 
rear  platform  has  been  held  demurrable."*" 

One  who  goes  on  the  platform  when  the  train  starts  to  move  and  jumps  in 
order  to  avoid  being  struck  by  a  telegraph  pole  cannot  recover."^ 

The  question  of  whether  a  negro  compelled  to  ride  on  the  platform  by  the 
fact  that  the  ear  set  apart  for  negroes  is  crowded  by  whites,  and  by  the  fact  that 
a  conductor  has  refused  to  transfer  him  to  a  train  following,  is  guilty  of  negligence, 
is  for  the  jury.^^ 

Allowing  body  to  project  from  car. — Where  a  safe  place  is  established  within 
the  coach,  passengers  have  no  right  to  ride  on  the  platform  or  extend  their  persons 
beyond  the  car  line.^'  Negligence  in  allowing  an  arm  to  extend  from  the  sill  of 
a  car  window  is  for  the  jury,'*  but  it  is  held  also  that  a  passenger  going  to  sleep 
and  allowing  his  arm  to  project  from  a  car  window  is  negligent  per  se.^'*  One 
who  leans  outward  from  the  running  board  of  a  street  car  to  signal  the  conductor 
is  negligent,'*^  though  the  contrary  has  been  held  of  one  on  the  footboard  of  an 


43.  Woodroffe  v.  Roxborough,  C.  H.  &  N. 
Ry.   Co..   201   Pa.   521. 

44.  Moody  V.  Springfield  St.  Ry.  Co..  182 
Mass.  158. 

4r,.  Flynn  v.  Consolidated  Traction  Co.,  67 
N.  J.  Law,  546. 

46.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Left- 
wich  (C.  C.  A.)  117  Fed.  127;  Denny  v.  North 
Carolina  R.  Co.,  132  N.  C.  340.  Person  on 
platform  in  violation  of  rule — Kerr  v.  Chi- 
cago, R.  L  &  P.  Ry.  Co.,  100  111.  App.  148. 
Standing  on  platform  in  violation  of  rule 
and  request  though  there  was  a  custom  to 
violate  the  rule — Houston  &  T.  C.  R.  Co.  v. 
Bryant  (Tex.  Civ.  App.)   72  S.  W.  885. 

47.  Doolittle  V.  Southern  Ry.,  62  S.  C.  130. 
Riding  on  platform  of  a  freight  caboose  in 
front  of  several  cars  of  freight  and  lumber, 
pushed  by  the  engine  from  the  rear,  believ- 
ing that  to  ride  inside  was  dangerous — Pres- 
cott  &  N.  Ry.  Co.  v.  Smith,  70  Ark.  179. 

48.  St.  Louis  S.  W.  Ry.  Co.  v.  Ball  (Tex. 
Civ.  App.)    66  S.  W.   879. 

49.  Cincinnati,  L.  &  A.  Elec.  St.  R.  Co.  v. 
Lohe  (Ohio)   67  N.  E.  161. 

.no.  It  is  not  sufficient  to  state  that  not 
being  able  to  secure  a  seat  In  a  rear  coach 
which  he  boarded  because  of  its  crowded 
condition  he  stood  on  the  rear  platform — 
Meyere  v,  Nashville,  C.  &  St.  L.  Ry.  (Tenn.) 
72   S.   "W.   114. 


51.  Lindsay  v.  Southern  Ry.   Co.,   114  Ga. 

896. 

52.  An  Instruction  that  plaintiff  was  not 
guilty  of  contributory  negligence,  is  prop- 
erly refused — Williams  v.  International  &  G. 
N.  R.  Co.   (Tex.  Civ.  App.)    67  S.  W.  1085. 

53.  Benedict  v.  Minneapolis  &  St.  L.  R. 
Co.,  86  Minn.  224.  57  L.  R.  A.  639.  A  person 
standing  in  a  place  of  safety  on  a  street 
car  is  guilty  of  contributory  negligence  per 
se  if  he  extends  his  head  outside  a  railing 
protecting  the  platform  into  the  path  of  a 
car  approaching  on  the  parallel  track — Mer- 
chant V.  South  Chicago  City  Ry.  Co.,  104  111. 
App.  122. 

54.  Injury  sustained  by  striking  the  open 
door  of  a  freight  car  left  on  the  switch 
track — Clerc  v.  Morgan's  L.  &  T.  R.  &  S.  S. 
Co.,  107  La.  370.  It  is  not  negligence  per  se 
for  a  passenger  reading  beside  an  open 
window  to  allow  his  elbow  to  extend  some 
three  Inches  beyond  the  sill — Tucker  v.  Buf- 
falo Ry.  Co..  169  N.  Y.  589. 

55.  Plaintiff  testified  that  he  did  not  think 
his  arm  was  outside  of  the  car  but  two  wit- 
nesses testified  that  he  was  asleep  and  that 
his  arm  projected  and  that  there  were  no 
marks  on  the  side  of  the  car  showing  con- 
tact with  an  external  object — Chicago,  R.  I. 
&  P.   R.  Co.  V.  Hoover,  3  Ind.   T.   693. 

56.  Struck  by  passing  wagon — Flynn  v. 
Consolidated  Traction  Co.,  67  N.  J.  Law,  546. 


§26H 


CONTRIBUTORY  NEGLIGENCE  OF  PASSENGER. 


479 


open  car  who  leaned  back  to  place  change  in  his  pocket  or  looked  toward  a  friend 
also  on  the  footboard/^ 

There  can  be  no  recovery  where  a  passenger  negligently  extends  his  person  be- 
yond the  car  line  from  curiosity,  though  the  carrier  has  permitted  his  cars  to  be 
overcrowded  and  required  passengers  to  ride  on  the  platform.^^ 

Derailment  of  car. — There  is  no  question  of  contributory  negligence  where  a 
person  is  injured  by  the  derailment  of  a  car  in  which  she  is  seated.^^ 

Acts  preparatory  to  alighting. — Where  one,  after  notifying  the  conductor  to 
stop  at  a  certain  point,  rises  and  places  her  arm  about  a  child  to  protect  him 
from  falling,  and  is  thrown  out  while  the  car  goes  around  a  curve  after  failing 
to  stop,  the  question  of  contributory  negligence  is  for  the  jury.«°  The  carrier  is 
not  liable  for  an  injury  to  an  infirm  passenger  occasioned  by  her  arising  before 
the  train  stopped,  there  being  no  unusual  jerk,  and  she  having  been  told  by  the 
conductor  to  wait  imtil  there  was  a  stop.®^  It  is  not  negligence  per  se  for  a  per- 
son, after  a  station  has  been  called,  to  go  on  the  platform  steps  of  a  moving  train 
in  readiness  to  alight,®^  but  the  question  may  be  for  the  jury.®^  One  standing  on 
the  steps  of  a  car  about  to  stop  cannot  recover  for  a  fall  occasioned  by  the  jerk- 
ing of  the  car  where  it  was  not  greater  than  usual.^*  A  passenger  is  not  warranted 
in  assuming  that  a  car  will  stop  on  the  nearer  side  of  the  street  so  as  to  per- 
mit him  to  recover  for  being  thrown  from  the  footboard  by  a  jolt,  the  crossing 
of  the  street  not  being  at  an  unusual  speed.®^ 

Failure  to  ask  assistance. — Failure  to  inform  employes  of  a  disability,  and  to 
ask  for  assistance  in  alighting,  may  be  negligence.^® 

Leaving  moving  train  or  car. — One  unnecessarily  and  knowingly  leaving  a  rail- 
road train  in  motion  is  as  a  matter  of  law  contributorily  negligent.®^  Knowledc^e 
of  motion  is  not  in  all  cases  required.®^  In  some  jurisdictions  it  is  held  not  neces- 
sarily negligence  to  alight  from  a  slowly  moving  train,«»  or  under  circumstances 


57.  Anderson  v.  City  Ry.  Co..  42  Or.  505, 
71  Pac.  659. 

58.  It  Is  contributory  neg-ligence  for  a 
boy  sixteen  years  old,  on  the  platform  of  a 
crowded  train,  to  lean  out,  allowing  his  head 
to  come  in  contact  with  posts — Benedict  v. 
Minneapolis  &  St.  L.  R.  Co.,  86  Minn.  224,  57 
L.   R.  A.   639. 

50.  Ramson  v.  Metropolitan  St.  Ry.  Co., 
78   App.   Div.    (N.   Y.)    101. 

60.  Whitaker  v.  Staten  Island  Midland  R. 
Co.,  72  App.  Div.   (N.  Y.)    468. 

61.  Passenger  arose  in  obedience  to  the 
cry  "All  hands  get  out  here,"  her  head  being 
bundled  up  and  she  being  unable  to  hear 
well — Illinois  Cent.  R.  Co.  v.  Boles,  24  Ky. 
L.   R.   2282,   73   S.  W.   1034. 

fi2.  Southern  Ry.  Co.  v.  Roebuck,  132  Ala. 
412. 

63.  Sweet  V.  Birmingham  Ry.  &  Elec.  Co. 
(Ala.)  33  So.  886.  Passenger  was  holding 
a  valise  in  one  hand  and  her  skirts  with  the 
other  and  train  started  before  she  had  time 
to  alight  biit  she  did  not  return  to  the  car 
or  hold  to  the  railing  and  was  thrown  by 
a  jerk  incident  to  a  second  stop — Smalley  v. 
Detroit  &  M.  Ry.  Co.  (Mich.)   91  N.  W.  1027. 

64.  Philips  V.  St.  Charles  St.  R.  Co..  106 
La.  592. 

65.  Nies  V.  Brooklyn  Heights  R.  Co.,  68 
App.  Div.    (N.  Y.)    259. 

66.  A  passenger  with  a  weak  ankle  at- 
tempted to  alight  without  looking  to  see 
whether  there  was  a  portable  step  or  to  as- 
certain the  distance  to  the  platform — Young 
V.  Missouri  Pac.  Ry.  Co.,  93  Mo.  App.  267. 


67.  Walters  v.  Chicago  &  N.  "W.  R.  Co., 
113  Wis.  367;  Illinois  Cent.  R.  Co.  v.  Cunning- 
ham, 102  111.  App.  206.  A  woman  encumbered 
by  parcels  attempting  to  alight  from  a  mov- 
ing train  in  the  night,  especially  if  she  has 
been  warned — McMichael  v.  Illinois  Cent.  R. 
Co.  (La.)  34  So.  110.  Plaintiff  was  permitted 
to  ride  on  a  freight  train  only  as  a  matter 
of  accommodation  and  was  thrown  from  the 
train  as  it  was  moving  rapidly  past  his  sta- 
tion, though  he  had  been  told  it  stopped  there 
and  one  of  the  servants  had  told  him  It  was 
time  to  prepare  to  get  off — Peak's  Adm'r  v. 
Louisville  &  N.  R.  Co.,  23  Ky.  L.  R.  2157,  66 
S.  W.  995.  Jumping  from  a  train  in  rapid 
motion  to  avoid  being  carried  by  his  sta- 
tion at  which  the  train  has  not  stopped — Chi- 
cago. B.  &  Q.  R.  Co.  V.  Martelle  (Neb.)  91 
N.  W.  364.  Evidence  held  sufficient — La 
Points  V.  Boston  &  M.  R.  R.,  182  Mass.  227. 

68.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Hub- 
bard (Tex.  Civ.  App.)  70  S.  W.  112.  Passen- 
ger did  not  look — Brown  v.  New  York,  N.  H. 
&  H.  R.  Co.,  181  Mass.  365.  Jumping  in  the 
dark  without  looking — Oxsher  v.  Houston, 
E.  &  W.  T.  Ry.  Co.  (Tex.  Civ.  App.)  67  S.  W. 
550.  Prevented  from  seeing  by  a  veil — La 
Pointo  v.  Boston  &  M.  R.  R.,  179  Mass.  535. 

69.  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Gray,  28  Ind.  App.  588.  It  is  a  question  for 
the  jury  where  plaintiff  attempted  to  alight 
from  a  vestlbuled  train  at  night  which  had 
begun  to  move  again  after  a  stop.  Plaintiff 
testified  that  he  did  not  know  the  train 
was  moving  but  there  was  evidence  that 
the  conductor  told  him  to  wait  and  he  would 


480 


CARRIERS  OF  PASSENGERS. 


§  26H 


misleading  as  to  speedJ"  An  attempt  to  alight  from  a  moving  train  is  not  nec- 
essarily gi-oss  negligence,  as  where  one  preparing  to  alight  alights  after  the  train 
begins  to  move.''^  Wheve  there  is  evidence  that  the  train  stopped  long  enough  to 
allow  plaintiff  to  alight,  the  jury  should  be  instructed  on  the  question  of  plain 
tiff's  contributory  negligence  in  failing  to  use  proper  diligence  to  leave  the  train 
before  it  startedJ^  Negligence  in  alighting  from  a  moving  street  car  is  for  the 
jury,^^  to  be  determined  from  the  attending  circumstances.'* 

Where  the  carrier  is  not  negligent,  one  stepping  from  a  moving  street  car 
assumes  the  risk,  though  such  act  is  not  negligence  per  se."''     The  person  attempt- 
ing to  alight  from  a  moving  street  car  cannot  recover  for  injuries,  though  he  ha 
been  unable  to  notify  the  conductor  to  stop.^® 

Alighting  at  dangerous  'place. — As  a  general  rule,  a  passenger  assumes  the 
risk  when  he  attempts  to  alight  at  a  place  where  he  is  not  invited  to  do  so,"  but 
it  may  be  a  question  for  the  jury  whether  a  passenger  is  negligent  in  getting  off 
at  a  crossing  stop,'®  or  in  alighting  from  the  side  of  the  train  opposite  the  plat- 
form/® A  passenger  is  not  negligent  in  alighting  from  a  train,  where,  after  his 
station  has  been  called,  the  train  stops  opposite  a  building  which  indicates  that 
the  stop  was  for  a  station.^"  A  street  car  passenger  is  not  bound  to  inquire  whether 
the  place  of  stopping  is  reasonably  safe  to  alight." 

Care  required  after  alighting.— One  alighting  at  a  regular  stopping  place  is 
not  bound  to  look  for  approaching  trains  on  parallel  tracks,®-  but  a  passenger  who 


stop  It,  but  as  to  whether  plaintiff  heard  this 
warning  the  evidence  was  conflicting — Wal- 
ters V.  Chicago  &  N.  "W.  R.  Co.,  113  Wis.  367. 
Plaintiff  must  show  he  was  carefully  trying 
to  alight  safely — Brown  v.  New  York,  N.  H. 
&  H.  R.  Co.,  181  Mass.  365. 

70.  A  petition  does  not  show  contributory 
negligence  per  se  where  it  alleges  that  plain- 
tiff jumped  from  a  train  while  it  was  mov- 
ing rapidly  in  the  dark,  though  it  was  still 
at  the  station  and  plaintiff  believed  it  was 
moving  slowly,  no  lights  being  placed  so 
that  he  could  estimate  the  speed — Texas  &  P. 
Ry.  Co.  V.  Crockett,  27  Tex.  Civ.  App.  463. 

71.  Chicago.  B.  &  Q.  R.  Co.  v.  Winfrey 
(Neb.)  93  N.  W.  526. 

72.  Texas  &  P.  Ry.  Co.  v.  McKenzie  (Tex. 
Civ.  App.)  70  S.  W.  237. 

73.  Canfield  v.  North  Chicago  St.  R.  Co., 
98  111.  App.  1.  Slowly  moving  car — Betts  v. 
Wilmington  City  Ry.  Co.  (Del.  Super.)  53  Atl. 
358.  Injury  while  alighting  by  a  sudden 
jerking  of  the  car,  evidence  that  plaintiff  had 
signaled  conductor  to  stop,  that  car  had 
slowed  up,  and  that  he  had  seen  the  con- 
ductor's hand  go  up  as  if  to  signal — Harris 
V.  Union  Ry.  Co.,  69  App.  Div.  (N.  T.)  385. 
An  instruction  that  the  fact  that  a  car  starts 
before  a  passenger  can  alight  does  not  en- 
title her  to  jump  from  it  while  it  is  in  mo- 
tion should  be  modified  by  requiring  that  the 
car  must  not  be  going  at  a  rate  of  speed 
making  it  dangerous  to  do  so — Indianapolis 
St  Ry.  Co.  V.  Hockett  (Ind.)  66  N.  B.  39. 
Continuing  an  attempt  to  alight  after  the 
car  started — Indianapolis  St.  Ry.  Co.  v.  Lawn 
(Ind.  App.)    66  N.  E.  508. 

74.  Bloomington  &  N.  Ry.  v.  Zimmerman, 
101  111.  App.  184.  One  who  attempts  to  alight 
from  a  car  in  motion  without  knowledge  of 
the  car  employees,  may  relieve  them  from 
negligence  in  increasing  the  speed  of  the  car. 
Fvldence  held  sufficient  to  show  such  facts — 
Blakney  v.  Seattle  Elec.  Co.,  28  Wash.  607, 
68  Pac.   1037. 


75.  Jones  v.  Canal  &  C.  R.  Co.,  109  La.  213. 
One  attempting  to  get  off  a  street  car  In 
motion  while  the  motorman  is  slowing  up 
after  failure  to  observe  a  request  to  stop  is 
negligent — Campbell  v.  Los  Angeles  Ry.  Co., 
135  Cal.  137,  67  Pac.  50. 

7C.  Foran  v.  Union  Traction  Co.,  22  Pa. 
Super.  Ct.  10. 

77.  Leaving  train  at  coal  chute — Bohan- 
non's  Adm'x  v.  Southern  Ry.  Co.,  23  Ky.  L. 
R.  1390,  65  S.  W.  169.  Train  stopped  on 
switch  not  to  discharge  passengers — Chicago. 
R.  I.  &  P.  Ry.  Co.  V.  Sattler  (Neb.)  90  N.  W. 
649,  57  L.  R.  A.  890.  One  who,  wishing  to  go 
to  the  rear  of  car  of  a  train,  steps  off  the 
platform  to  go  back  on  the  outside  and  is 
injured  by  falling  through  a  bridge,  it  be- 
ing dark  and  the  passenger  being  familiar 
with  the  station  and  the  bridge,  is  negli- 
gent— Kellogg  V.  Smith,  179  Mass.  595.  One 
attempting  to  alight  from  a  rear  platform 
when  he  knows  that  assistance  will  be  af- 
forded him  at  the  front  end  of  the  car  can- 
not recover  for  a  fall  due  to  the  slippery 
steps,  it  being  raining,  snowing  and  freez- 
ing at  the  time — Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Aldridge,   27  Ind.  App.  498. 

78.  Larson  v.  Minneapolis  &  St.  L.  R.  Co., 
85  Minn.  387. 

79.  Owen  v.  Washington  &  C.  R.  R.  Co., 
29  Wash.  207,  69  Pac.  757. 

50.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Farr,  70 
Ark.   264. 

51.  Montgomery  St.  Ry.  Co.  v.  Mason,  133 
Ala.  508.  Question  is  for  the  Jury  where 
plaintiff  was  Injured  by  stepping  Into  a 
trench  on  alighting  from  a  car  at  night, 
plaintiff  testifying  that  she  received  no 
T\'arning.  did  not  see  any  ditch,  barrier,  or 
lis-ht — "Wolf  V.  Third  Ave.  R.  Co.,  67  App.  Div. 
(N.  T.)  605. 

52.  Chicago  Terminal  Transfer  R.  Co.  T. 
Schmelling,  197  111.  619. 


§26H 


CONTRIBUTORY  NEGLIGENCE  OF  PASSENGER. 


481 


is  injured  while  alighting,  through  proceeding  in  a  direction  where  he  has  not  been 
invited  and  the  carrier  has  no  reason  to  expect  him  to  be,  is  not  in  the  exercise  of 
ordinary  care/^  though  passengers  may  leave  cars  by  any  exit  unless  forbidden.^" 
A  passenger  is  not  bound  to  keep  a  greater  lookout  for  defects  in  a  platform  than 
is  suggested  by  ordinary  prudence;  so  it  is  not  contributory  negligence  to  step 
backward  into  a  hole  while  the  passenger  is  attempting  to  safely  dispose  of  her 
children.®^  Wliere  the  passenger  was  injured  in  an  attempt  to  reach  the  depot 
after  being  compelled  to  alight,  at  a  distance  therefrom  in  the  dark,  the  question 
of  negligence  may  be  for  the  jury.^'' 

Directions  of  passenger  to  driver  of  cah. — A  passenger  of  a  transfer  company 
is  not  contributorily  negligent  in  directing  the  driver  to  stop  at  a  place  not  neces- 
sarily dangerous,  though  the  driver  stops  so  near  a  car  track  that  the  cab  is  over- 
turned by  a  car..^^ 

Miscellaneous  acts  considered  as  constituting  or  not  constituting  negligence  are 
collected  in  the  footnotes.^^ 

Questions  for  jury. — The  question  of  negligence  is  a  matter  of  law  only  when 
the  facts  are  not  in  controversy,  or  but  one  rational  inference  may  be  drawn  there- 
from.*^ Ordinarily,  the  question  is  for  the  jury,^°  and  always  where  the  testimony 
is  conflicting.^^  Contributory  negligence  of  a  passenger  on  a  mixed  train  may 
be  for  the  jury.^^  Negligence  of  a  person  attempting  to  assist  a  passenger  injured 
while  boarding  a  street  car  is  for  the  jury.®^ 


83.  Chicag-o.    B.    &   Q.    R.   Co.   v.   Harrison, 
100  111.  App.  211. 

84.  Chicago    Terminal   Transfer   R.   Co.   v. 
Schmelling,  99  111.  App.  577. 

85.  Barker   v.    Ohio    River    R.    Co.,    51    W. 
Va.    423. 

86.  Harkness  v.   Kansas  City,  M.   &  B.   R. 
Co.    (Miss.)    33  So.   77. 

87.  Frank  Bird  Transfer  Co.  v.  Krug  (Ind. 
App.)    65  N.  E.  309. 

88.  A     pregnant     woman     undertaking     a 
journey  not  negligent  unless  the  undertaking 
was  dangerous  in  her  condition — St.  Louis  S. 
W.    Ry.    Co.    V.    Ferguson,    26    Tex.    Civ.   App. 
460.     A  woman  is   not  negligent  in  wearing 
a    long    skirt    though    her    dress    catches    on 
the    plunger    of    a    street    car    w^hile    she    is 
alighting — Smith    v.    Kingston    City    R.    Co., 
169  N.  Y.   616.     The   fact  that  plaintiff  made 
a   misstep    while    boarding   a   train   does   not 
require    an    instruction    on    the    subject    of 
contributory  negligence — Texas  &  P.  Ry.  Co. 
V.   Gardner    (C.   C.   A.)    114   Fed.    186.      Where 
a    husband    siies    for    an    injury    to    his    wife 
caused   by  the   crowded   condition   of  a  train 
compelling  her  to  stand  and  hold  a  child,  his 
contributory    negligence    in    permitting    her 
to  carry  the  child  is  a  question  for  the  jury — 
Texas  &  P.  Ry.  Co.  v.  Rea,  27  Tex.  Civ.  App. 
549.     One  walking  sidewise  and  holding  the 
rails  of  a  moving  street  car  cannot  recover 
for    an    injury   sustained    by    falling    into    an 
open  manhole — Sellers  v.  Union  Traction  Co., 
21    Pa.    Super.    Ct.    5.      One    who    steps    on    a 
street  car  without  grasping  a  railing  is  not 
per  se  negligent.    After  stepping  on  the  plat- 
form, plaintiff  caught  the  hand  hold  with  the 
hand    farthest    from   it,    reaching    across    his 
body,    the    other    hand    being    occupied    with 
packages — Birmingliam    Ry.    &    Elec.    Co.    v. 
Brannon,  132  Ala.  431.     A  mail  agent,  thrown 
from    a   mail    car,    cannot    recover    where    he 
did  not  have  the  lower  doors  across  the  door 
opening  closed,  though  the  safety  bar  was  so 

Current  Law — 31. 


tight  In  its  socket  that  It  could  not  be  placed 
across  the  door,  it  not  being  defective  and 
the  agent  having  made  no  attempt  to  find 
anything  with  which  to  dislodge  it — Martin 
V.  Philadelphia  &  R.  Ry.  Co.,  200  Pa.  603. 
The  question  of  whether  one  whose  thumb  is 
mashed  by  the  closing  of  a  door  of  a  freight 
caboose  on  a  sudden  jerk  of  the  train  is 
guilty  of  negligence  is  for  the  jury,  as  is 
the  question  of  whether  a  jerk  was  an  ex- 
traordinary one — Illinois  Cent.  R.  Co  v 
Crady,  24  Ky.  L.  R.  643,  69  S.  W.  706.  It  is 
a  question  for  the  jury  whether  a  passenger 
is  negligent  in  passing  an  unvestibuled 
sleeper  to  visit  a  dining  car — Northern  Pac 
Ry.  Co.  V.  Adams   (C.  C.  A.)  116  Fed.  324. 

80,  90,  91.     Chicago,  B.  &  Q.  R.  Co.  v.  Win- 
frey   (Neb.)    93   N.    W.    526.      The  question   of 
contributory    negligence    must    be    submitted 
to  the  jury  where   the  inference   may  result 
from   defendant's   evidence  that  the  accident 
did   not   occur   in    the   manner   contended    for 
by  the  plaintiff's  witnesses  without  contribu- 
tory negligence  on  plaintiff's  part — Wimple- 
berg   v.   Tonkers    R.    Co.,    115    N.    Y.    St.    Rep. 
963.     On  a  conflict  of  evidence  as  to  whether 
plaintiff  attempted  to  alight  while  car  was  in 
motion    or    whether    he    was    thrown    there 
from   by  a  sudden  jerk,   the   question  of  the 
locus  of  negligence  is  for  the  jury — Schilling 
V.    Union    R.    Co.,    77    App.    DIv.    (N.    Y.)    74^ 
Comerford  v.   New   York,   N.  H.   &  H.   H.   Co  ' 
181  Mass.  528.     Where  plaintiff  was  standing 
in  a  passenger  coach,  at  the  time  of  injury, 
the  question  whether  there  were  vacant  seats 
in    forward    cars    may    be    left    to    the    jury 
though  defendant's  evidence  shows  that  there 
were   some   1102   seats   on   the  train   and   952 
passengers,    and    that    there    were    plenty    of 
seats  in  the  two  front  cars,  since  defendant's 
witness    might    have    been    mistaken    or    the 
jury   have   disbelieved   him — Parnon   v.    Bos- 
ton &  A.  R.  Co.,  180  Mass.  212. 

92.     Symonds   v.    Minneapolis   &   St    L.    Ry 
Co.    (Minn.)    92  N.   W.   409. 


482 


CARRIERS   OF   PASSENGERS. 


§  261 


(§26)  I.  Liability  of  initial  or  connecting  carrier. — Where  the  carrier  limits  its 
liability  toward  a  passenger  to  its  own  line,  it  is  liable  for  an  injury  occurring  while 
running  its  cars  a  short  distance  over  a  connecting  line  before  turning  them  over 
thereto.^* 

(§26)  J.  Limitation  of  liability. — Statutes  may  provide  the  extent  to  which  lia- 
bility may  be  limited.®"*  Where  there  is  a  custom  to  carry  passengers  generally  on  cer- 
tain freight  trains,  contracts  with  passengers  releasing  the  company  from  all  liabil- 
ity while  riding  on  such  freight  trains  are  void,  though  tickets  are  furnished  by 
reason  thereof  at  a  reduced  rate,®*  and  one  on  a  freight  train  in  charge  of  freight 
is  a  passenger  concerning  whom  the  carrier  cannot  limit  its  liability  to  gross  neg- 
ligence or  exempt  itself  from  the  exercise  of  care  and  diligence.®^  An  agreement 
between  a  carrier  and  a  person  for  whom  it  agrees  to  haul  goods  and  employees, 
whereby  such  person  agrees  to  indemnify  the  carrier  for  any  damages  to  which  it 
may  be  held  liable  in  excess  of  a  certain  amount,  is  valid.®*  Acceptance  of  a  re- 
duced rate  ticket,  with  an  indorsement  that  the  person  using  it  assumes  the  risk 
of  accident  and  damage,  places  the  duty  on  the  passenger  of  affirmatively  proving 
negligence.®®  Where  tickets  are  given  in  consideration  of  the  grant  of  a  right  of 
way  subject  to  a  sole  condition  of  personal  use,  a  provision  in  the  tickets  exempting 
the  carrier  from  liability  for  injury  is  without  consideration  and  not  assented 
to  by  use  of  the  ticket.^ 

If  it  is  provided  that  a  person  in  charge  of  stock  shall  ride  in  the  caboose 
and  that  if  he  leave  it  or  pass  over  or  along  the  cars  or  track,  he  assumes  the  risk, 
the  carrier  is  nevertheless  liable  for  an  injury  received  by  him  while  in  the  cattle 
car,  caring  for  stock,  through  other  cars  being  bumped  into  it,  the  duty  of  caring 
for  the  stock  being  on  him  under  the  contract.^ 

Provisions  in  passes. — It  has  been  held  that  provisions  in  a  free  pass  exempt- 
ing the  carrier  from  liability  for  negligence  are  binding,^  and  contra,*  an  exemp- 
tion in  a  free  ticket  for  injury  to  the  person  or  loss  and  damage  to  property  doe? 
not  cover  the  death  of  the  passenger.^  A  condition  for  a  release  of  the  carrier  from 
all  claims  for  damages  for  personal  injuries,  from  whatever  cause,  does  not  release 
the  carrier  from  liability  for  negligence.® 

Contracts  with  employes  of  sleeping  car  companies. — A  carrier  transporting 
a  sleeping  car  is  entitled  to  the  benefit  of  a  release  from  liability  for  personal  in- 
juries, executed  by  an  employe  of  the  sleeping  car  company  to  the  sleeping  car 
company,  since  the  railroad  company  is  under  no  legal  duty  to  furnish  sleeping 


03.  Schoenfeld  v.  Metropolitan  St.  Ry.  Co., 
40  Misc.  (N.  Y.)   201. 

94.  Oliver  v.  Columbia,  N.  &  L.  R.  Co.,  65 
S.  C.  1. 

95.  Comp.  St.  c.  72,  art.  1,  §  5,  does  not 
confer  the  right  to  limit  liability  by  stipu- 
lation, since  section  3  confines  such  right  to 
the  exceptions  provided  therein — Chicago,  R. 
I.  &  P.  R.  Co.  V.  Hambel  (Neb.)  89  N.  W.  643. 

96.  Richmond  v.  Southern  Pac.  Co.,  41 
Or.   54,   67  Pac.  947. 

97.  Pennsylvania  Co.  v.  Greso,  102  111.  App. 
252. 

98.  Contract  to  haul  defendant's  circus 
train  and  to  provide  accommodations  on  pas- 
senger train  for  defendant's  agent,  contained 
a  provision  that  plaintiff  should  not  be  liable 
for  any  injury  to  an  amount  more  than  $50, 
and  If  held  liable  for  a  greater  sum,  defend- 
ant would  repay  the  excess — Seaboard  Air 
Line  Ry.  Co.  v.  Main,  132  N.  C.  445. 

99.  Common  law  rule  making  the  carrier 


liable  for  a  passenger's  safety.  Is  waived. — 
Crary  v.  Lehigh  Val.  R.  Co.,  203  Pa.  525. 

1.  Dow  V.  Syracuse,  L.  &  B.  Ry.,  81  App. 
Div.    (N,   Y.)    362. 

2.  Bolton  V.  Missouri  Pac.  Ry.  Co.  (Mo.) 
72  S.  W.  630. 

3.  Payne  v.  Terre  Haute  &  I.  Ry.  Co.,  157 
Ind.  616.  Where  one  riding  on  a  free  pass 
assumes  all  the  risks  of  accidents,  he  cannot 
recover  for  negligence,  though  the  pass  is 
a  breach  of  statutes  relating  to  interstate 
commerce — Duncan  v.  Maine  Cent.  R.  Co.,  113 
Fed.  508. 

4.  Code,  §  1296,  provides  that  a  carrier 
cannot  agree  for  exemption  from  liability  for 
injury  from  Its  own  negligence — Norfolk  & 
W.  Ry.  Co.  V.  Tanner  (Va.)  41  S.  E.  721. 
Against  public  policy — Missouri,  K.  &  T.  Ry. 
Co.  V.  Flood  (Tex.  CIv.  App.)  70  S.  "W.  331. 

5.  Northern  Pac.  Ry.  Co.  v.  Adams,  116 
Fed.    324. 

6.  Dow  V.  Syracuse,  L.  &  B.  Ry.,  81  App. 
Div.   (N.  Y.)   362. 


26K 


DAMAGES. 


483 


oars,  and  where  the  employe  releases  the  carrier  from  liability  of  any  nature  or 
character  whatsoever,  personal  injuries  caused  by  the  negligence  of  the  carrier 
are  included/ 

(§  26)  K.  Damages.^ — Where  the  carrier  carries  the  passenger  by  his  station,  it 
is  liable  for  any  injuries  which  may  be  reasonably  foreseen,^  but  he  cannot  recover  for 
mere  mental  suffering.^**  One  holding  a  ticket  to  a  point  at  which  a  train  stops 
only  on  signal  cannot  recover  damages  for  being  carried  by,  where  she  has  informed 
no  one  connected  with  the  train  as  to  her  destination  and  voluntarily  leaves  it 
though  the  conductor  offers  to  transport  her  to  the  next  stop  and  send  her  back." 

Elements  of  damage. — Where  a  woman  has  been  compelled  to  stand,  she  may 
recover  for  injury  on  account  of  having  to  hold  a  child  not  her  own,  which  she 
assumed  to  take  care  of.^^  An  officer  may  show  the  amount  of  fees  lost  by  his 
prevention  of  completion  of  his  journey.^^  Loss  through  inability  to  attend  to 
business  may  be  an  element  of  damage.^*  It  may  be  shown  that  after  his  in- 
juries plaintiff  still  collected  his  salary  as  a  government  employe.^^  An  instruc- 
tion need  not  call  attention  to  the  amount  claimed  for  the  expense  of  nursing 
and  medical  services.^^  The  question  of  whether  injured  feelings  are  connected 
with  bodily  injury  is  lor  the  jury,  as  is  the  question  of  whether  negligence  is  the 
proximate  cause  of  injuries.^^ 

Excessive  damages. — See  foot  note  for  consideration  of  particular  verdicts.^® 

Punitive  damages  may  be  awarded  in  cases  of  gross  negligence.^^  The  passen- 
ger must  have  been  injured  by  the  negligence.^"  There  must  be  willful  and  reckless 
disregard  of  the  passenger's  right,  together  with  gross  negligence,  to  warrant  ex- 
emplary damages.^^  Punitive  damages  may  be  awarded  for  a  malicious  assault 
by  a  conductor  on  a  passenger,^^  or  for  insolence  and  ridicule  of  a  passenger  by 
an  employe.^^  Where  an  instruction  as  to  punitive  damages  is  given,  defendant 
is  entitled  to  have  an  instruction  as  to  actual  damages  in  the  absence  of  malice.^* 


7.  RusseU  V.  Pittsburgh,  C,  C.  &  St.  L. 
Ry.  Co..  157  Ind.  305,  55  L.  R.  A.  253. 

8.  Merely  a  few  peculiar  cases  are  treated 
here.  For  a  comprehensive  review  of  all 
cases  see  article  "Damages." 

9.  Passenger  sustained  severe  Injuries 
from  being  compelled  to  remain  several 
hours  in  a  cold,  unlighted  depot  and  in  driv- 
ing to  her  destination — St.  Louis  S.  W.  Ry. 
Co.  v.  Ricketts  (Tex.)  70  S.  W.  315.  Evidence 
of  fright  after  being  discharged  at  a  station 
beyond  the  proper  one,  is  inadmissible,  unless 
it  is  shown  that  the  locality  was  one  to 
occasion  fright  and  that  the  carrier  had 
knowledge — Central  of  Ga.  Ry.  Co.  v.  Dorsey 
(Ga.)  42  S.  E.  1024.  A  carrier  is  not  liable 
for  the  robbery  of  a  passenger  after  he  is 
put  off  at  a  point  beyond  his  station,  defend- 
ant having  failed  to  awaken  him  at  the  prop- 
er place,  unless  It  is  shown  that  the  agents 
had  knowledge  of  the  moral  repute  of  the 
locality  where  he  was  ejected — Atkinson  v. 
Pacific  Ry.  Co.,  90  Mo.  App.  489.  Damages 
sustained  from  sickness  incurred  by  a  child 
from  falling  in  the  mud  and  being  wet  and 
frightened  cannot  be  recovered  where  he  was 
carried  a  short  distance  past  his  station  and 
put  off  without  Injury  and  without  malice  or 
inhumanity — Rawlings  v.  Wabash  R.  Co.  (Mo. 
App.)    71    S.    W.    534. 

10.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Dalton.  65  Kan.  661,  70  Pae.  645. 

11.  Pence  v.  Louisville  &  N.  R.  Co.,  23  Ky. 
L.  R.  1207,  64  S.  W.  905. 

12.  Texas  &  P.  Ry.  Co.  v.  Rea,  27  Tex.  Civ. 
App.   549. 


13.  Chicago,  R.  L  &  P.  R.  Co.  v.  Hoover, 
3  Ind.  T.  693. 

14.  Storrs  v.  Los  Angeles  Traction  Co.,  134 
Cal.  91,  66  Pac.  72. 

15.  Louisville  &  N.  R.  Co.  v.  Carothers,  23 
Ky.  L.  R.  1673,  65  S.  W.  833,  66  S.  W.  385. 

16.  International  &  G.  N.  R.  Co.  v,  Samp- 
son (Tex.  Civ.  App.)  64  S.  W.  692. 

17.  Rawlings  v.  Wabash  R,  Co.  (Mo.  App.) 
71   S.  W.   535. 

18.  $125  is  not  excessive  where  passenger 
Is  carried  beyond  her  station  and  sustains 
abrasions  and  bruises  while  crossing  a  cattle 
guard  on  the  way  back  to  the  station  and 
falls  at  other  places  and  becomes  thoroughly 
wet — Rawlings  v.  Wabash  R.  Co.  (Mo.  App.) 
71  S.  W.  535.  $1450  ordered  to  be  reduced 
to  $500  where  the  arrest  of  a  passenger  on 
a  street  car  was  ordered  by  the  conductor, 
the  passenger  was  released  on  recognizance 
and  was  discharged  on  the  following  day, 
there  being  no  appearance  against  him — 
Grayson  v.  St.  Louis  Transit  Co.  (Mo.  App.) 
71  S.  W.  730. 

19.  Louisville  &  N.  R.  Co.  v.  McClaln,  23 
Ky.  L.  R.  1878,  66  S.  W.  391. 

20.  21.  Oliver  v.  Columbia,  N.  &  L.  R.  Co., 
65  S.  C.  1.  Evidence  that  a  train  was  run 
at  the  rate  of  60  miles  an  hour  over  a  de- 
fective track  is  sufficient — Griffin  v.  Southern 
Ry.,   65   S.  C.   122. 

22.  Lexington  Ry.  Co.  v.  Cozine,  23  Ky. 
L.  R.  1137,   64   S.   W.   848. 

23.  Street  railway  company  failed  to  stop 
at  the  proper  signal  and  employee  Insulted 
the   per.'^on   on   his   becoming  a  passenger  on 


484 


CARRIERS   OF   PASSENGERS. 


§26L 


(§26)  L.  Remedies  and  procedure.  Form  of  action. — An  action  based  on  negli- 
gence in  maintenance  of  a  road  bed  is  in  tort,  though  the  plaintiff  alleges  a  contract  to 
carry  him  safely  as  a  passenger.-^ 

Yenue. — An  action  by  a  nonresident  against  a  railroad  corporation  for  per- 
sonal injuries  received  in  another  state  must  be  brought  in  the  county  in  which. 
the  chief  officer  of  the  defendant  resides  or  in  which  it  has  its  chief  office.-*^ 

Defenses. — Eecovery  under  accident  policies  is  not  a  bar  to  recovery  against 
the  carrier.  ^^ 

Pleading.-^ — Allegations  of  separate  breaches  of  duty  growing  out  of  the  same 
facts  do  not  state  separate  causes  of  action.^^  It  is  not  sufficient  to  show  that  plain- 
tiff was  a  passenger  to  aver  that  an  assault  was  committed  "while  plaintiff  was 
engaged  in  or  about  becoming  a  passenger  on  said  car/'^*** 

Xeo-ligence  mav  be  alleged  generally  in  the  absence  of  a  motion  for  more  spe- 
cific statement."  Use  of  the  word  "negligent"  may  be  unnecessary.^^-  The  fact 
that  elements  of  negligence  are  alleged  conjunctively  does  not  render  proof  of  all 
necessary.^'  An  allegation  that  an  act  was  done  \sdth  knowledge  or  notice  does 
not  charge  wantonness.^*  Cases  in  which  the  general  sufficiency  of  pleading  of 
neo-lio-ence  is  considered  are  grouped  in  the  notes/^  so  also  cases  of  sufficiency  of' 
nesrativing  contributory  negligence.^^ 


the   return   trip — Jackson  Elec.   Ry.,   L.   &  I*- 
Co.  V.  Lowry,  79  Miss.  431. 

24.  Failure  to  stop  a  passenger  train  in 
response  to  a  signal  at  a  flag  station — Yazoo 
&  M.  V.  R.  Co.  V.  White  (Miss.)   33  So.  970. 

25.  Chesapeake  &  N.  Ry.  Co.  v.  Hanmer, 
23  Ky.  L.  R.  1846,  66  S.  W.  375. 

26.  Eichorn  v.  Louisville  &  N.  R.  Co.,  23 
Ky.  L.  R.  1640,  65  S.  W.  797. 

27.  Averments  in  an  answer  that  plaintiff 
is  asserting  claims  for  his  injuries  under 
accident  policies  which  he  held,  are  properly 
stricken  out — Louisville  &  N.  R.  Co.  v.  Car- 
others.  23  Ky.  L.  R.  1673,  65  S.  W.  833,  66 
S.  W.  385. 

2S.  See  articles  "Negligence"  and  "Plead- 
ing" for  discussion  of  general  rules. 

29.  A  complaint  alleging  in  one  count  that 
defendant  negligently  and  carelessly  caused 
a  train  to  be  suddenly  started  while  plaintifC 
was  alighting,  and  in  another  that  reason- 
able time  was  not  allowed  plaintiff  to  alight, 
does  not  state  two  causes  of  action — Chicago 
&  E.  L  R.  Co.  V.  Wallace,  104  111.  App.  55. 

30.  Birmingham  Ry.  &  Elec.  Co.  v.  Mason 
(Ala.)   34  So.  207. 

31.  Charge  of  having  carelessly  and  neg- 
ligently started  a  car  with  a  sudden  jerk 
while  plaintifE  was  alighting,  throwing  her  to 
the  ground  and  injuring  her,  is  sufficient — 
South  Chicago  City  Ry.  Co.  v.  Zerler  (Ind. 
App.)  65  N.  E.  599.  "^"here  negligence  al- 
leged is  the  failure  to  provide  a  safe  place  to 
alight,  the  complaint  need  not  aver  what 
constitutes  a  safe  place  or  give  a  minute 
description  of  the  place  where  the  stop  was 
made,  and  of  the  in;-',ries — Montgomery  St. 
Ry.  Co.  v.  Mason,  133  Ala.  508. 

32.  An  averment  that  while  plaintiff  was 
attempting  to  alight,  after  the  carrier  had 
caused  its  passengers  to  go  on  the  platform 
for  the  purpose  of  getting  off,  the  train  sud- 
denly jerked  and  threw  her  off  the  car,  is 
sufficient— Cincinnati.  H.  &  I.  R.  Co.  v.  Worth- 
Ington   (Ind.  App.)    66  N.  E.   478. 

33.  Duell  V.  Chicago  &  N.  W.  Ry.  Co.,  115 
Wis.   518. 


34.  Birmingham  Ry.  &  Elec.  Co.  v.  Butler. 
135  Ala.  388. 

35.  Pleading  sudden  jerk — Gorman  v.  St. 
Louis  Transit  Co.,  96  Mo.  App.  602.  Petition 
where  a  passenger  was  injured  by  reason  of 
the  distance  from  a  car  step  to  the  ground 
held  good  against  general  demurrer — Inter- 
national &  G.  N.  R.  Co.  V.  Clark  (Tex.  Civ. 
App.)  71  S.  W.  587.  Allegation  that  plain- 
tiff was  injured  by  the  negligence  of  the 
driver  of  the  carriage  in  which  she  was 
transported  in  stopping  it  too  near  the  track, 
and  by  the  negligence  of  the  street  car  com- 
pany in  failing  to  operate  its  cars  so  as  to 
avoid  a  collision,  is  sufficient  against  a  de- 
murrer for  want  of  facts — Frank  Bird  Trans- 
fer Co.  V.  Krug  (Ind.  App.)  65  N.  E.  309.  A 
declaration  setting  forth  relation  of  carrier 
and  passenger  and  averring  defendant  failed 
to  comply  with  Its  duty  to  provide  suitable 
gates,  safeguards  to  prevent  persons  fall- 
ing between  cars,  by  reason  of  which  plain- 
tiff Vv^as  injured,  is  sufficient  as  against  a  mo- 
tion in  arrest  of  judgment  for  plaintiff — 
Lake  St.  El.  R.  Co.  v.  Burgess,  200  111.  628. 
Plaintiff  alleging  that  a  train  was  so  neg- 
ligently managed  that  w^hile  running  at  a 
speed  of  10  miles  an  hour,  it  was  sudden- 
ly stopped  and  plaintiff  injured  by  being 
thrown  with  violence  from  his  seat,  is  good 
as  against  a  demurrer  that  no  rate  of  speed 
can  be  said  to  be  negligence  per  se — Balti- 
more &  O.  S.  W.  R.  Co.  V.  Harbin  (Ind.)  67 
N.  E.  109.  An  averment  that  defendant  neg- 
ligently failed  to  carry  plaintiff  safely  and 
so  negligently  and  unskillfully  conducted  it- 
self that  plaintiff  was  thrown  to  the  floor,  is 
sufficiently  certain — Southern  Ry.  Co.  v. 
Crowder,  135  Ala.  417.  Petition  construed  as 
to  whether  it  presented  the  issue  of  faiKire 
to  open  a  ticket  office  promptly,  warranting 
the  giving  of  an  instriiction  on  such  theory 
— St.  Louis  S.  W.  Ry.  Co.  v.  Cannon  (Tex. 
Civ.  App.)  71  S.  W.  992.  Sufficiency  of  com- 
plaint for  injuries  received  while  crossing 
a  track  after  alighting  from  defendant's 
train — Savannah,  F.  &  W.  Ry.  Co.  v.  Hatcher, 


§26L 


ACTIONS  FOR  INJURIES.     PLEADING. 


485 


Allegations  as  to  manner  and  cause  of  the  accident  become  immaterial  where 

defendant  admits  the  derailment  by  reason  of  which  the  injuries  were  sustained.'^ 

^  AVliere  contributory  negligence  is  set  up  as  a  defense,  it  must  be  alleged  that 

plaintiff  failed  to  exercise  ordinary  and  reasonable  care  or  that  he  saw  the  cause 

of  the  accident.^^ 

A  complaint  alleging  that  plaintiff  was  rendered  unable  to  attend  to  business 
may  be  amended  at  the  trial  to  show  the  nature  of  his  business.^''  The  complaint 
may  be  amended  to  conform  to  proof,  where  the  variance  does  not  affect  the  cause 
of  action  but  merely  plaintiff's  contributory  negligence.*" 

Conformity  of  pleadings  and  proof  and  variance. — Proof  of  the  accident  must 
conform  to  the  allegations."  If  negligence  is  pleaded  specifically,  the  proof  will 
be  confined  to  the  allegations/^  and  negligence  not  pleaded  cannot  be  shown." 
Evidence  of  particular  acts,  not  set  out  in  detail  in  the  petition,  done  at  the  time 
of  the  injury  may  be  admissible  to  illustrate  the  manner  in  which  plaintiff  claimed 
the  injury  occurred.**     Matters  of  inducement  need  not  be  established.*® 


115  Ga.  379.  It  is  not  an  allegation  of  specific 
negligence  to  allege  "that  the  running  gear, 
that  is  to  say  the  wheels,  axles  and  other 
machinery,  by  means  of  which  the  said  car 
ran  along  said  track,  were  defective  and 
out  of  order  and  not  fit  for  the  purpose  of 
supporting  said  car  on  said  track,"  and,  after 
averring  knowledge,  that  the  defendant  "ran 
the  said  car  along  the  said  track  and  into 
said  curve  at  a  high  rate  of  speed" — Johnson 
V.  St.  Louis  &  S.  Ry.  Co.  (Mo.)  73  S.  W.  173. 
Complaint  is  sufficiently  specific  which  al- 
leges that  plaintiff's  father,  while  a  passen- 
ger on  defendant's  train,  was  killed  by  its 
derailment  occasioned  by  the  negligence  of 
defendant's  servants  and  agents  in  charge — 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Contreras 
(Tex.  Civ.  App.)  72  S.  W.  1051.  Sufliciency 
of  a  pleading  as  to  averments  that  an  in- 
jury was  due  to  the  negligence  of  the  lessee 
of  a  lessor  company  made  defendant — Chi- 
cago &  W.  L  R.  Co.  V.  Doan,  195  111.  168. 

36.  An  allegation  that  it  was  the  duty  of 
a  brakeman  to  assist  passengers  in  safely 
alighting,  is  a  suflicient  averment  that  ad- 
vice and  assistance  to  a  passenger  to  alight 
from  a  moving  train  was  in  the  scope  of  his 
employment — Pittsburgh,  C,  C.  &  St.  L.  Ry. 
Co.  V.  Gray,  28  Ind.  App.  5SS.  An  allegation 
that  a  car  was  about  to  collide  with  a  loco- 
motive is  a  sufficient  allegation  that  a  colli- 
sion was  Imminent — Selma  St.  &  Suburban 
Ry.  Co.  V.  Owen,  132  Ala.  420. 

37.  McNeill  V.  Durham  &  C.  R.  Co.,  130 
N.   C.   256. 

38.  It  is  not  sufficient  to  allege  facts  in- 
dicating that  it  could  have  been  seen — Mont- 
gomery St.  Ry.  Co.  V.  Mason,  133  Ala.  508. 

39.  Buckbee  v.  Third  Ave.  R.  Co.,  64  App. 
Div.    (N.   Y.)    360. 

40.  A  complaint  averring  that  plaintiff 
was  thrown  by  a  sudden  start  of  the  car 
after  it  had  stopped,  may  be  amended  to  con- 
form to  proof  that  the  jerk  occurred  before 
the  car  had  quite  stopped — Scarry  v.  Met- 
ropolitan St.  Ry.  Co.,  115  N.  Y.  St.  Rep.  284. 

41.  Variance  held  fatal.  Averments  that 
plaintiff  was  thrown  between  cars  while  at- 
tempting to  board  and  proof  of  being  thrown 
under  a  car  after  stepping  on  its  platform — 
Birmingham  Ry.  &  Elec.  Co.  v.  Brannon,  132 
Ala.  431.  Allegation  that  a  motorman  neg- 
ligently permitted  a  minor  to  ride  on  the 
foot  board  during  his  journey,  and  evidence 
that  he  rode  on  the  front  platform  until 
within  a  block  of  his  home,  where  the  motor- 


man  intended  to  let  him  off  and  there  stepped 
down  on  the  foot  board  to  leave  the  car- 
Richmond  Ry.  &  Elec.  Co.  V.  West,  4  Va  Sud 
Ct  112,  40  S.  E.  643.  Averments  that  plain- 
tiff was  thrown  to  the  ground  by  the  force 
of  a  coUision,  proof  that  plaintiff  jumped  to 
escape  the  collision — McAllister  v.  People's 
^/■.^°-,  ^?^'-  S^Per.)  54  Atl.  743.  Allegations 
that  while  plaintiff  was  in  the  act  of  alight- 
ing from  a  car  which  had  completelv  stopped 
It  started  with  great  suddenness  and  velocity 
throwing  her,  proof  that  plaintiff  stepped  off 

a   car    before    it    had    come    to    a    full    stop 

Coleman  v.  MetropoUtan  St.  Ry.  Co..  115  N 
Y.  St.  Rep.  836. 

Immaterial  variance.  Allegation  that  a 
car  was  caused  to  lurch  back  and  forward 
evidence  that  the  lurch  was  sideways— Hicks 
V.  Galveston,  H.  &  S.  A.  Ry.  Co.  (Tex.)  72 
S.  W.  835.  Allegation  that  plaintiff  paid  his 
fare  to  a  certain  point  and  proof  that  he  paid 
It  to  a  point  a  mile  beyond  when,  on  being 
informed  that  the  train  did  not  stop  at  the 
latter  point,  with  the  assent  of  the  conductor 
he  proposed  to  get  off  at  the  nearer  one- 
Southern  Ry.  Co.  v.  Lollar,  135  Ala.  375.  Al- 
legation that  a  conductor  in  charge  of  a 
street  car  was  unfit,  is  supported  by  proof 
that  the  conductor  wilfully  knocked  plaintiff 
from  a  car  step — Willis  v.  Metropolitan  St. 
Ry.  Co.,  76  App.  Div.  (N.  Y.)  340.  An  alle- 
gation that  a  conductor  negligently  and 
recklessly  interfered  with  plaintiff  while  at- 
tempting to  board  a  car,  is  supported  by 
proof  that  the  conductor  wilfully  knocked 
plaintiff  from  the  car  steps — Id. 

43.  Derailment  of  a  train— Johnson  v. 
Galveston,  H.  &  N.  Ry.  Co.,  27  Tex.  Civ.  App. 
616.  Under  a  declaration  alleging  a  defective 
airbrake,  evidence  that  control  of  the  car 
was  lost  through  a  snap  switch  being  closed 
which  should  have  been  open,  is  not  admis- 
sible— McAllister  v.  People's  Ry.  Co.  (Del 
Super.)   54  Atl.  743. 

43.  Absence  of  light  at  a  station — Milll- 
gan  V.  Texas  &  N.  O.  Ry.  Co.,  27  Tex.  Civ. 
App.  600.  Bad  condition  of  track — Nies  v. 
Brooklyn  Heights  R.  Co.,  68  App.  Div.  (n! 
Y.)  259.  In  the  absence  of  an  averment 
plaintiff  cannot  show  that  while  standing 
on  the  foot  board  he  lost  his  balance  by 
reason  of  jolting,  due  to  the  rough  condition 
of  the  track — Richmond  Ry.  &  Elec  Co  v 
West,  4  Va.  Sup.  Ct.  112,  40  S.  E.  643. 

44.  Central  of  Georgia  Ry.  Co.  v.  McKln- 
ney,  116  Ga.  13. 


486 


CARRIERS   OF   PASSENGERS. 


§  26L 


In  an  action  for  an  assault,  plaintiff  may  testify  to  remarks  of  the  employes 
after  assaulting  him,  where  it  is  alleged  that  after  the  assault,  the  employes  contin- 
ued to  insult  and  abuse  plaintiff.*^ 

Under  a  general  denial  in  an  action  for  injury  to  one  in  charge  of  stock,  while 
in  the  car  tending  the  stock,  a  provision  in  the  contract  requiring  plaintiff  to  ride 
in  the  caboose  may  be  admitted.*^ 

Special  pleas  which  fail  to  negative  the  averments  of  negligence  of  the  com- 
plaint are  subject  to  demurrer.** 

Presumptions  and  lurden  of  proof. — To  render  the  doctrine  res  ipsa  loquitur 
applicable,  the  thing  must  indicate  the  negligence  of  defendant.***  The  doctrine 
applies  to  the  derailment  of  street  cars  operated  by  mechanical  or  electrical  means.^° 
Evidence  of  a  contract  of  carriage  and  injury  to  plaintiff  while  a  passenger  there- 
under throws  the  burden  of  showing  freedom  from  negligence  on  defendant,"  or 
of  showing  that  the  injury  arose  from  the  negligence  of  the  passenger  or  the  viola- 
tion of  some  regulation  of  the  carrier  knoAvn  to  him.^^  The  rule  extends  to  car- 
riers by  street  cars,^^  or  by  steamboat."  The  presumption  of  negligence  from  the 
happening  of  an  accident  does  not  arise  unless  there  is  evidence  tending  to  con- 
nect the  carrier  or  its  employes  or  some  of  the  appliances  of  transportation  with 
the  injury,^"^  but  a  showing  of  an  injury  from  a  defect  in  anything  which  a  carrier 
is  bound  to  supply,^®  or  from  an  apparatus  wholly  within  the  control  of  the  car- 
rier, is  sufficient."     Particular  cases  are  grouped  in  the  notes.^*     Where  injuries 


45.  Where  It  Is  aUeged  that  a  door  was 
opened  by  the  conductor  and  that  sparks 
escaping  from  the  engine,  struck  plaintifE, 
it  Is  not  necessary  to  establish  the  fact  that 
the  door  was  opened  by  the  conductor,  or 
submit  it  as  an  issue — St.  Louis  S.  W.  Ry. 
Co.  V.  Parks  (Tex.  Civ.  App.)  73  S.  W.  439. 

4«.  Statement  of  porter  "That  is  my  bread 
and  butter  and  I  would  do  it  again" — Shaefer 
V.  Missouri  Pac.  Ry.  Co.  (Mo.  App.)  72  S.  W. 
154. 

47.  Bolton  V.  Missouri  Pac.  Ry.  Co.  (Mo.) 
72    S.    W.    530. 

48.  An  averment  that  plaintiff  was  thrown 
by  the  starting  of  a  train  as  she  was  at- 
tempting to  board  It  as  a  passenger  by  in- 
vitation of  an  agent  or  servant  of  defendant 
having  authority  to  extend  such  invitation 
is  not  negatived  by  a  plea  that  the  train 
had  stopped  sufficiently  long  for  her  to  have 
boarded  the  train  safely,  or  by  pleas  that  she 
was  attempting  to  get  on  without  knowledge 
of  the  conductor  or  persons  in  charge  of  the 
train — Alabama  Midland  Ry.  Co.  v.  Horn,  132 
Ala.  407. 

49.  Paynter  v.  Bridgeton  &  M.  Traction 
Co.,  67  N.  J.  Law,  619. 

50.  Adams  V.  Union  Ry.  Co.,  80  App.  Div. 
(N.  Y.)   136. 

51.  Texas  &  P.  Ry.  Co.  v.  Gardner  (C.  C. 
A.)  114  Fed.  186;  Le  Blanc  v.  Sweet,  107  La. 
355. 

52.  Chicago,  B.  &  Q.  R-  Co.  v.  Winfrey 
(Neb)  93  N.  W.  526;  Texas  &  P.  Ry.  Co.  v. 
Gardner  (C.  C.  A.)  114  Fed.  186. 

53.  Brimmer  v.  Illinois  Cent.  R.  Co.,  101 
III.   App.    198. 

54.  Where  It  Is  shown  that  a  passenger  on 
a  steamboat  was  drowned  in  an  attempt  to 
transfer  her  to  the  shore,  the  burden  is  on 
the  carrier  to  show  that  the  accident  was 
without  its  fault— Le  Blanc  v.  Sweet,  107  La. 

355 

5!;.  It  is  not  sufficient  to  show  that  a  for- 
eign   body    came    through    a    window    and 


struck  plaintiff  without  other  explanation  of 
what  the  body  was  or  how  It  happened  to 
come  Into  the  car — Ault  v.  Cowan,  20  Pa. 
Super.  Ct.  616.  Negligence  In  jerking  the 
train  while  stopping,  causing  a  door  to  be 
violently  closed  upon  plaintiff's  hand,  she 
having  placed  It  on  the  door  jamb  to  pre- 
vent herself  from  being  thrown  down,  must 
be  established  by  plaintiff — Denver  &  R.  G. 
R.  Co.  V.  Fotheringham  (Colo.  App.)  68  Pac. 
978. 

56.  Davis  v.  Paducah  Ry.  &  Light  Co.,  24 
Ky.  L.  R.   135,   68  S.  W.  140. 

57.  Chicago  City  Ry.  Co.  v.  Morse,  98  111. 
App.    662.  """ 

58.  Facts  raising  presnmption.  Injury  by 
sparks  escaping  from  the  engine — St.  Louis 
S.  W.  Ry.  Co.  V.  Parks  (Tex.  Civ.  App.)  73 
S.  W.  439.  Starting  of  car  while  passenger 
is  alighting — United  Rys.  &  Elec.  Co.  v.  Bei- 
delman,  95  Md.  480.  Collision  with  car  of  an- 
other company  (Construing  Code  Civ.  Proc. 
§§  1869,  1981,  1963) — Osgood  v.  Los  Angeles 
Traction  Co.,  137  Cal.  280.  70  Pac.  169.  Col- 
lision— Sambuck  v.  Southern  Pac.  Co.,  138 
Cal.  xix.,  71  Pac.  174.  Shock  on  taking 
hold  of  the  rail  of  a  street  car  to  board  it 
after  a  stop  for  such  purpose — Dallas  Consol. 
Elec.  St.  Ry.  Co.  v.  Broadhurst  (Tex.  Civ. 
App.)  68  S.  W.  315.  Falling  of  trolley  pole — 
Chicago  City  Ry.  Co.  v.  Carroll,  102  111.  App. 
202.  Passenger  at  a  station  being  struck 
by  a  lump  of  coal  from  the  tender  of  a 
passing  train — Louisville  &  N.  R.  Co.  v. 
Reynolds,  24  Ky.  L.  R.  1402,  71  S.  W.  516. 
Breaking  of  an  axle  injuring  a  drover  riding 
on  a  freight  train — Western  Maryland  R.  Co. 
V.  State,  95  Md.  637. 

Failure  of  presumption.  Mere  fall  without 
showing  of  cause — Paynter  v.  Bridgeton  &  M. 
Traction  Co.,  67  N.  J.  Law,  619.  Mere  fact 
that  a  drover  in  charge  of  stock  is  killed — 
Western  Maryland  R.  Co.  v.  State,  95  Md.  637. 
The  mere  presence  of  saw  dust  and  shavings 
and  fragments  of  wood  on  an  elevated  rail- 


26L 


ACTIONS  FOR  INJURIES.     EVIDENCE. 


487 


result  from  derailment  and  plaintiff  does  not  rest  on  the  presumption  arising  from 
the  fact,  he  must  show  by  his  evidence,  negligence  on  the  part  of  defendant.^* 
Where  negligence  is  alleged  to  have  been  in  having  caused  plaintiff  to  jump  by  rea- 
son of  an  appearance  of  imminent  danger,  the  plaintiff  should  show  that  the 
appearance  was  such  as  to  convince  a  reasonable  person  of  the  imminence  of  such 
danger.®**  If  a  blow  is  shown  to  have  resulted  from  the  carrier's  negligence,  and 
plaintiff  is  shown  to  suffer  from  shock,  the  result  of  a  jar  to  her  nervous  system, 
she  is  not  bound  to  show  that  the  shock  was  the  consequence  of  the  blow,  it  being 
presumed  that  the  jar  and  blow  were  due  to  the  same  cause. ^^  The  burden  may 
remain  on  plaintiff  after  all  the  proof  is  in  to  show  negligence,®^  as  where  there 
has  been  a  showing  of  contributory  negligence.®^  The  fact  that  plaintiff  fails  to 
establish  a  certain  theory  of  the  accident  does  not  relieve  defendant  from  the  duty 
of  showing  that  it  was  free  from  negligence,®*  and  see  for  sufficiency  of  evidence 
to  shift  burden.®^ 

Admissibility  of  evidence. — Decisions  as  to  admissibility  of  evidence  in  actions 
against  carriers  for  personal  injuries  are  collected  in  the  foot  notes.®® 


road  structure  Is  not  evidence  of  negligence 
where  a  passenger  is  injured  thereby,  and  if 
plaintiff  testifies  that  she  does  not  know 
whether  the  saw  dust  was  thrown  or  blown 
down  and  it  is  proved  that  there  was  consid- 
erable wind  at  the  time,  she  cannot  recover 
under  the  doctrine  of  res  ipsa  loquitur — 
Wadsworth  v.  Boston  El.  R.  Co.  (Mass.)  66 
N.  E.  421. 

59.  Buckland  v.  New  York,  N.  H.  &  H. 
R.  Co.,   181   Mass.  3. 

60.  Birmingham  Ry.  &  Elec.  Co.  v.  Butler, 
135  Ala.  388. 

61.  Homans  v.  Boston  El.  Ry.  Co.,  180 
Mass.   456. 

63.  As  where  he  has  made  a  prima  facie 
case  in  an  action  for  injuries  sustained  in 
a  derailment,  that  the  car  was  going  at  "a 
pretty  good  rate"  and  that  the  accident  hap- 
pened, where  there  was  a  junction  with  side 
tracks — Hollahan  v.  Metropolitan  St.  Ry.  Co., 
73  App.  Div.    (N.  Y.)   164. 

63.  Richmond  Pass.  &  Power  Co.  v.  Allen 
(Va.)  43  S.  E.  356. 

64.  Failure  of  a  passenger  to  establish 
that  an  accident  was  due  to  defective  insula- 
tion— D'Arcy  v.  Westchester  Elec.  Ry.  Co., 
115  N.  Y.  St.  Rep.  952. 

65.  Evidence  held  insufRcient  to  discharge 
the  burden  on  the  carrier  of  explaining  an 
accident  resulting  from  the  refusal  of  an 
engine  to  work — Walker  v.  Wilmington 
Steam  Boat  Co.,  117  Fed.  784.  Proof  of  an 
accident  by  the  sudden  and  unexplained  stop- 
ping of  a  street  car,  raises  a  presumption  of 
negligence  not  overcome  by  evidence  of  the 
use  of  the  best  known  appliances,  careful 
supervision  and  skillful  service — Langley  v. 
Metropolitan  St.  Ry.  Co.,  36  Misc.  (N.  Y.)  804. 

66.  In  general.  Evidence  of  negligence 
may  go  to  the  jury  though  not  shown  to 
be  the  proximate  cause  of  the  injury — Doo- 
little  V.  Southern  Ry.,  62  S.  C.  130.  Posses- 
sion of  money  to  pay  fare  and  intention  to 
become  a  passenger  is  admissible  where 
plaintiff's  intestate  was  killed  at  a  station — 
Chicago  &  B.  I.  R.  Co.  v.  Huston,  95  111. 
App.  350.  Injury  to  plaintiff's  hat,  after  he 
left  the  place  where  he  was  injured  cannot 
be  shown — Louisville  &  N.  R.  Co.  v.  Caroth- 
ers,  23  Ky.  L.  R.  1673,  65  S.  W.  833,  66  S.  W. 
385.  What  took  place  in  the  car  at  the  time 
of    the    accident    is    admissible — Id.      Where 


negligence    is    charged    in    starting    the    car 
with  a  jerk  after  a  stop  a  conductor  cannot 
be    examined    as   to    speed   before    coming   to 
the    stop — Birmingham    Ry.    &    Elec.    Co.    v. 
Ellard,   135   Ala.   433.     If  alleged   that  plain- 
tiff, the  morning  after  the  accident,  was  ar- 
raigned for  intoxication,  the  ofncer  who  took 
her  to  court  should  be  allowed  to  state  what 
plea  he   made   at   her   request   and   what   ad- 
missions  she   had  made   as   to   her   condition 
the  night  before — Link  v.   Brooklyn  Heights 
R.  Co.,  64  App.  Div.  (N.  Y.)  406.     Where  there 
is   evidence   of  negligence   in   that  a  steam- 
boat was  being  driven  with  more  than  usual 
speed,  the  usual  speed  may  be  properly  sub- 
mitted to  the  jury.     Plaintiff  was  injured  by 
reason    of    the    boat    striking    a   tree    knock- 
ing it  over  on  him,  while  it  was  being  at- 
tempted to  make  a  landing,  bow  on,  the  river 
being  bank  full,  and  there  being  an  eddy  in 
front    of   the    landing — Louisville    &   E.    Mail 
Co.  V.   Gilliland,   24  Ky.  L.   R.    2081,   72  S.  W. 
1101.       Plaintiff    having    been    compelled    to 
stand  on  the  platform  of  an  excursion  train 
by    reason    of    its    overcrowded    condition,    it 
may  be  shown  that  the  excursion  was  adver- 
tised  and    large   crowds   expected — Williams 
V.    International    &    G.    N.    R.    Co.    (Tex.    Civ. 
App.)    67  S.   W.   1085.     Where  an  element  of 
damage   alleged   In   compelling   the    plaintiff 
to  ride  in  a  second  class  car,  though  holding 
a  first  class  ticket,  was  that  rough  language 
was   used   in   her  presence,    evidence   of   the 
profanity    of    one    of    the    passengers    is    ad- 
missible— Texas    &    P.    Ry.    Co.    v.    Kingston 
(Tex.    Civ.    App.)    68    S.    W.    518.      Where   an 
accident    occurred    from    the    failure    of    an 
engineer    to    obey   signals   of   the    conductor, 
evidence  that  the  conductor  thought  the  pas- 
senger   had    alighted    is    immaterial,    it    not 
appearing  that   his    action   would   have  been 
different — Simmons  v.  Oregon   R.   Co.,   41  Or. 
151,  69  Pac.  440,  1022.     In  an  action  for  neg- 
ligently showing  a  passenger  into  the  wrong 
car,  the  unused  portion  of  a  ticket  may  be 
admitted  to  show  the  contract  of  transporta- 
tion— International  &  G.  N.   R.  Co.  v.  Evans 
(Tex.  Civ.  App.)    70  S.  W.  351.     Use  of  steps 
and   station   platform   is  admissible   to  show 
their   adoption    by   defendant    as   part    of  its 
accommodations — Smo^-K   v.    Savannah,    F.    & 
W.    R.   Co.,    65    S.    C.    299.      It   may   be    shown 
that   others  jumped   off  just  ahead  of  plain- 


488 


CARRIERS   OF   PASSENGERS. 


§  26L 


Sufficiency  of  evidence. — Where  evidence  is  equally  consistent  with  the  absence 
and  presence  of  negligence,  plaintiff  cannot  recover.^^     Under  a  general  denial, 


tiff  under  similar  circumstances,  as  showing 
that  plaintiff  thought  he  might  jump  with 
safety — Texas  &  P.  Ry.  Co.  v.  Crockett,  27 
Tex.  Civ.  App.  463;  evidence  of  a  custom 
to  notify  passengers  of  the  approach  of  a 
curve  is  inadmissible,  where  there  is  no 
evidence  that  such  notice  was  not  given. 
Where  the  injury  occurred  by  a  person  be- 
ing thrown  against  plaintiff  while  the  car 
was  rounding  a  curve,  evidence  that  the 
person  so  thrown  was  talking  to  the  con- 
ductor just  before  the  accident  is  immaterial, 
and  evidence  of  the  peculiar  motion  of  the 
car  in  going  around  a  curve  at  other  times 
is  inadmissible,  there  being  no  allegation 
that  the  road  bed  was  improper  or  out  of 
order,  or  that  the  car  was  not  a  proper  one, 
properly  equipped — Merrill  v.  Metropolitan 
St.  Ry.  Co.,  73  App.  Div.  (N.  Y.)  401.  Evi- 
dence that  blood  was  seen  running  from  the 
heads  of  other  persons  after  the  collision,  is 
admissible  to  show  its  violence — Larkin  v. 
Chicago  &  G.  W.  Ry.  Co.  (Iowa)  92  N.  W. 
891.  A  surgeon  in  defendant's  employ  sent 
to  the  scene  of  the  accident  may  be  asked 
as  to  his  efforts  to  find  out  who  were  in- 
jured— Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Story,  104  111.  App.  132.  If  it  is  alleged  that 
the  plaintiff  alighted  at  a  wrong  station  at 
defendant's  porter's  invitation,  it  may  be 
shown  that  the  porter  is  only  required  to 
announce  stations  and  assist  passengers  to 
alight  and  not  required  to  notify  particular 
passengers  where  they  should  get  off — Texas 
Midland  R.  v.  Terry,  27  Tex.  Civ.  App.  341. 
Where  the  injury  was  from  an  electric  shock, 
another  person  may  testify  that  he  was 
shocked  on  the  same  day  on  the  same  car — 
Dallas  Consol.  Elec.  St.  Ry.  Co.  v.  Broad- 
hurst  (Tex.  Civ.  App.)  68  S.  W.  315.  Where 
the  person  for  whom  recovery  is  sought  was 
one  to  whom  defendant  omitted  no  duty,  the 
question  as  to  whether  it  was  negligence 
to  allow  two  trains  to  collide  in  the  day  time 
is  irrelevant,  and  in  the  same  case  a  •wit- 
ness need  not  be  allowed  to  testify  that  he 
had  been  examined  before  a  railroad  com- 
mission as  to  double  headers — Crawleigh  v. 
Galve.'^ton.  H.  &  S.  A.  Ry.  Co.  (Tex.  Civ.  App.) 
67  S.  W.  140.  Where  defendant  claims  that 
plaintiff  is  chargeable  with  knowledge  of 
the  nearness  of  poles  to  the  track  by  the 
fact  that  he  has  passed  other  similar  poles, 
it  may  be  shown  that  such  poles  were  placed 
at  a  safe  distance  from  the  track — Hesse  v. 
Meriden,  S.  &  C.  Tramway  Co.  (Conn.)  54 
Atl.   299. 

Construction  of  cars.  Proof  that  applian- 
ces on  new  cars  were  not  used  on  old  cars 
does  not  tend  to  show  negligence  in  the 
use  of  the  latter — Moody  v.  Springfield  St. 
Ry.  Co.,  182  Mass.  158.  Where  plaintiff  was 
injured  while  seated  in  defendant's  car,  evi- 
dence of  the  car's  construction  and  furnish- 
ing is  admissible  as  part  of  the  res  gestae 
— Southern  Ry.  Co.  v.  Crowder,  130  Ala.   256. 

Condition  o£  tracks  and  premi-ses.  "U'here 
the  declaration  charges  that  the  car  was 
so  run  as  to  throw  defendant  out  by  a  vio- 
lent lurch,  the  condition  of  the  track  and 
rails  at  the  place  of  the  accident  may  be 
shown — Fitch  v.  Mason  City  &  C.  L.  Traction 
Co..  116  Iowa,  716.  On  an  injury  from  a 
broken  rail,  evidence  that  broken  rails  had 
been   seen   on    other   portions   of   the   road   is 


inadmissible,  either  to  rebut  evidence  that 
an  examination  a  short  time  before  the 
wreck  would  have  shown  a  broken  rail,  had 
there  been  one,  or  to  show  that  the  rail  was 
broken  before  the  train  went  on  it — Whittle- 
sey V.  Burlington,  C.  R.  &  N.  Ry.  Co.  (Iowa) 
90  N.  W.  516.  Where  it  is  alleged  that  there 
was  too  great  a  distance  from  the  car  step 
to  the  ground,  the  presence  of  a  ditch  at  the 
place  of  accident  may  be  shown,  and  a  w^it- 
ness  may  testify  that  there  was  a  fill  at  the 
place  of  accident  as  tending  to  show  the 
absence  of  a  platform  and  the  distance  to 
the  ground — International  &  G.  N.  R.  Co.  v. 
Clark  (Tex.  Civ.  App.)   71  S.  W.  587. 

Sufficiency  of  stop.  In  order  to  show  that 
a  train  did  not  make  a  reasonable  stop,  it 
may  be  shown  that  a  third  person  who  had 
purchased  a  ticket  was,  by  reason  of  its 
starting,  unable  to  board  the  train — Texas 
&  P.  Ry.  Co.  V.  Crockett,  27  Tex.  Civ.  App. 
463.  Evidence  of  a  crowded  condition  of 
cars  and  the  possibility  of  getting  on  an- 
other coach  may  be  admitted  as  bearing  on 
the  reasonableness  of  time  given  to  change 
cars — Oliver  v.  Columbia,  N.  &  L..  R.  Co.,  6o 
S.  C.  1. 

Carrier's  rules.  Rules  of  the  company 
having  no  relation  to  the  issues,  cannot  be 
introduced — Deutschmann  v.  Third  Ave.  R. 
Co.,  78  App.  Div.   (N.  T.)   413. 

City  ordinances.  Where  plaintiff  was  in- 
jured while  passing  from  the  car  to  the 
sidewalk,  an  ordinance  requiring  a  street 
railroad  company  to  keep  a  space  about  one 
foot  outside  its  tracks  in  repair  is  admis- 
sible— Fielders  v.  North  Jersey  St.  Ry.  Co., 
67  N.  J.  Law,  76.  Where  a  passenger  sus- 
tained an  injury  by  stepping  into  a  hole  on 
alighting  from  a  street  car,  a  re.solution  of 
the  council  giving  authority  to  a  paving 
company  to  take  up  the  paving  laid  by  the 
street  car  company  and  keep  the  street  in 
accordance  with  the  city's  specifications,  is 
admissible  to  show  that  the  carrier  had  been 
relieved  from  the  obligation  of  keeping  the 
street  in  repair;  or,  though  the  street  car 
company  was  not  relieved  of  the  obligation 
to  keep  the  street  in  repair  by  the  city's  ac- 
tion, as  bearing  on  the  question  of  negli- 
gence (construing  Railroad  Law.  §  98;  Syra- 
cuse City  Charter.  §§  30,  138) — Welch  v.  Syra- 
cuse Rapid  Transit  Ry.  Co.,  70  App.  Div.  (N. 
Y.)  362.  Where  negligence  alleged  is  in  run- 
ning at  a  speed  violating  a  city  ordinance, 
the  ordinance  is  admissible  in  evidence.  Pas- 
senger was  knocked  from  the  running  board 
by  a  bridge  girder — San  Antonio  Traction 
Co.  v.  Bryant   (Tex.  Civ.  App.)   70  S.  W.  1015. 

Conversations  and  statements  of  employes. 
Statements  of  a  railroad  commissioner  to  a 
railroad  official  are  admissible  to  show  no- 
tice of  the  condition  of  a  depot  and  plat- 
form— Smoak  v.  Savannah,  F.  &  W.  R.  Co., 
65  S.  C.  299.  Evidence  of  conversation  with 
a  brakeman  about  holding  a  train  is  admis- 
sible, where  the  contention  is  concerning  the 
holding  of  a  train  at  a  regular  stopping  place 
to  allow  plaintiff  to  alight  and  secure  a 
ticket,  and  it  may  also  be  shown  that  plain- 
tiff was  directed  by  the  conductor  to  get  off 
at  the  station  and  purchase  a  ticket— Chi- 
cago &  A.  R.  Co.  v.  Flaharty,  96  111.  App. 
563.  Where  plaintiff  was  thrown  to  the  floor 
by   a   sudden    stop,    a   conversation    with    the 


§  26L 


ACTIONS  FOR  INJURIES.     EVIDENCE. 


489 


there  must  be  evidence  that  defendant  owTied  or  operated  the  road  or  car  on  which 
plaintiff  was  a  passenger.^^  Where  plaintiff's  case  rests  on  her  unsupported  testi- 
mony partially  contradicted  by  her  own  witnesses,  it  is  not  sufficient  as  against 
clear  evidence  of  contributory  negligence.®®  WHiere  it  is  alleged  that  injuries  were 
received  through  the  negligence  of  servants  in  charge  of  certain  cars,  it  is  not  nec- 
essary that  it  be  shown  which  servant  was  negligent.^"  A  statement  by  the  passenger 
that  he  was  not  thrown,  but  that  a  ring  on  his  hand  was  caught  on  a  car  handle, 
tearing  his  finger,  is  not  contradictory  of  a  claim  at  the  trial  that  his  finger  was 
torn  by  a  sudden  forward  movement  of  the  car.''^  Cases  in  which  the  sufficiency 
of  evidence  with  regard  to  particular  allegations  of  negligence  has  been  considered 
are  grouped  in  the  foot  notes. '^'^ 


conductor  by  plaintiff  on  entering  the  car 
is  admissible  to  show  the  carrier's  knowl- 
edge that  plaintiff  was  a  cripple — Louisville, 
H.  &  St.  L.  R.  Co.  V.  Bowlds,  23  Ky.  L.  R.  1202, 
64  S.  W.  957.  Evidence  that  a  brakeman 
when  he  announced  the  station  told  plaintiff 
to  follow  him,  inducing  her  to  leave  her  seat, 
is  admissible.  The  fact  that  plaintiff  while 
standing  up  in  the  aisle  was  thrown  to  the 
floor  by  a  sudden  jerk  was  pleaded — Id. 

67.  Injury  received  through  stepping  on 
a  nail  when  leaving  a  street  car — Cahn  v. 
Manhattan  Ry.  Co.,  37  Misc.  (N.  Y.)  824. 

68.  Indianapolis  bt.  Ry.  Co.  v.  Lawn  (Ind. 
App.)   66  N.  E.  508. 

69.  Attempt  to  alight  from  moving  car — 
Hogan  v.  Metropolitan  St.  Ry.  Co.,  71  App. 
Div.    (N.  Y.)    614. 

70.  The  rule  that  if  plaintiff  pleads  spe- 
cific negligence  he  must  prove  it,  does  not 
apply  to  an  averment  that  defendant  "did 
by  the  servants  in  charge  of  said  car  and  its 
servants  in  charge  of  another  of  the  cars,  so 
carelessly  manage  and  control  said  cars  as 
to  cause  and  suffer  the  same  to  collide" — 
Malloy  V.  St.  Louis  &  S.  Ry.  Co.  (Mo.)  73  S. 
W.  159. 

71.  Tooker  v.  Brooklyn  Heights  R.  Co.,  80 
App.  Div.   (N.  Y.)   371. 

72.  To  show  payment  of  fare  causing  per- 
son to  become  passenger  on  freight  train — 
Crawleigh  v.  Galveston,  H.  &  S.  A.  Ry.  Co. 
(Tex.  Oiv.  App.)  67  S.  W.  140.  To  connect 
injury  with  accident — Hicks  v.  Galveston,  H. 
&  S.  A.  Ry.  Co.  (Tex.  Civ.  App.)  71  S.  W. 
322;  Nicholson  v.  Northern  Pac.  Ry.  Co.  (C. 
C.  A.)  114  Fed.  89;  Buckbee  v.  Third  Ave.  R. 
Co.,  64  App.  Div.  (N.  Y.)  360.  To  connect 
an  injury  with  an  accident  so  as  to  permit 
testimony  of  the  condition  resulting  from 
the  injury  two  and  a  half  years  after  the 
accident — Muller  v.  Metropolitan  St.  R.  Co., 
77  App.  Div.  (N.  Y.)  221.  Throwing  pas- 
senger from  street  car — South  Chicago  City 
Ry.  Co.  V.  Dufresne,  200  111.  456;  Ackerstadt 
v.  Chicago  City  Ry.  Co.,  194  111.  616;  With- 
erington  v.  Lynn  &  B.  R.  Co.,  182  Mass.  596, 
66  N.  E.  206;  Berry  v.  Utica  Belt  Line  St.  R. 
Co.,  76  App.  Div.  (N.  Y.)  490.  Sudden  stop — 
Chicago  City  Ry.  Co.  v.  Morse,  197  111.  327; 
Erwin  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.,  94 
Mo.  App.  289;  Smalley  v.  Detroit  &  M.  Ry. 
Co.  (Mich.)  91  N.  W.  1027.  Person  boarding 
car — Winchell  v.  St.  Paul  City  Ry.  Co.,  86 
Minn.  445.  Jerking  of  freight  train — South- 
ern R.  Co.  V.  Vandergriff,  108  Tenn.  14.  Evi- 
dence held  Insufficient  to  show  mismanage- 
ment of  a  freight  train  by  which  plaintiff 
riding  In  charge  of  stock  was  thrown  out 
of  a  bunk — Frohriep  v.  Lake  Shore   &  M.   S. 


Ry.  Co.  (Mich.)  91  N.  W.  748.  To  show  neg- 
ligence in  the  operation  of  a  mixed  train — 
Symonds  v.  Minneapolis  &  St.  L.  Ry.  Co. 
(Minn.)  92  N.  W.  409.  To  overcome  prima 
facie  case  of  negligence  resulting  from  a 
train  breaking  in  two — Larkin  v.  Chicago  & 
G.  W.  Ry.  Co.  (Iowa)  92  N.  W.  891.  To  re- 
quire submission  to  the  jury  of  the  ques- 
tion as  to  whether  a  motorman  on  a  car 
which  struck  a  passenger  after  alighting, 
sounded  his  gong — Hornstein  v.  United  Rys. 
Co.  (Mo.  App.)  70  S.  W.  1105.  Missiles 
thrown  by  strikers — Pewings  v.  Mendenhall 
(Minn.)  93  N.  W.  127.  Damages  sustained 
in  the  ensuing  panic  after  explosion  of  con- 
troller— Dunlay  v.  United  Traction  Co.,  18 
Pa.  Super.  Ct.  206.  Evidence  held  sufficient 
to  support  defendant's  theory  that  an  assault 
by  its  conductor  was  provoked  by  plaintiff 
after  he  had  jumped  from  the  car  while  in 
motion  and  during  the  course  of  a  conversa- 
tion with  the  conductor,  who  had  alighted 
to  make  inquiries — James  v.  Metopolitan  St. 
Ry.  Co.,  80  App.  Div.  (N.  Y.)  364.  Negligent 
construction  of  car  window — International  & 
G.  N.  R.  Co.  V.  Phillips  (Tex.  Civ.  App.)  69 
S.  W.  107.  To  establish  knowledge  of  plain- 
tiff's employee  of  use  of  profane  language 
by  a  fellow  passenger,  and  that  plaintiff  was 
suffering  from  the  overheated  condition  of 
a  car,  it  is  sufficient  to  show  that  the  con- 
ductor had  taken  up  tickets  in  the  car  and 
that  other  employees  swept  it  out  after 
plaintiff  was  a  passenger — Texas  &  P.  Ry. 
Co.  V.  Kingston  (Tex.  Civ.  App.)  68  S.  W. 
518.  To  show  that  a  derailment  was  caused 
by  defects  in  the  flange  of  a  wheel — Johnson 
V.  St.  Louis  &  S.  Ry.  Co.  (Mo.)  73  S.  W.  173. 
Street  car  jumping  track — Hollahan  v.  Met- 
ropolitan St.  Ry.  Co.,  73  App.  Div.  (N.  Y.) 
164.  Evidence  that  plaintiff's  foot  caught 
and  that  he  fell  when  he  pulled  to  get  it 
loose  as  he  was  getting  off  a  car,  does  not 
establish  negligence  of  the  carrier — Howell 
V.  Union  Traction  Co.,  202  Pa.  338.  Verdict 
for  plaintiff'  not  sustained  on  evidence  that  an 
accident  resulted  from  the  effects  of  an  eddy 
and  a  stiff  wind  which,  while  possible  of  be- 
ing overcome  by  the  use  of  greater  speed, 
use  of  such  speed  was  prevented  by  due  care 
of  passengers — Louisville  &  E.  Mail  Co.  v. 
Gilliland,  24  Ky.  L.  R.  2081,  72  S.  W.  1101. 
Evidence  held  insufficient  to  show  that  a  car 
was  not  stopped  at  a  safe  place  or  that  the 
conductor  was  negligent  in  failing  to  warn 
a  person  of  an  excavation  with  which  the 
street  car  company  was  in  no  way  connect- 
ed— MacKenzie  v.  Union  Ry.  Co.,  115  N.  Y. 
St.  Rep.  748.  A  mere  map  designating  the 
railroad  company  by  name  is  not  sufficient  to 
show   ownership    of  a   street   railway   at   the 


490 


CARRIERS   OF   PASSENGERS. 


§   26L 


Confusing  and  misleading  instructions. — Decisions  as  to  the  definiteness  and 
singleness  of  issues  presented  by  instructions  are  grouped  in  the  footnotes.''^ 

Instructions  as  to  burden  of  proof. '^* — Instructions  shoidd  be  so  framed  as  to 
indicate  the  burden  of  proof  without  expressly  referring  to  it.'^'  An  instruction 
denying  the  weight  of  the  accident  itself  as  an  evidentiary  fact  proving  negligence 
is  not  error,  where  plaintiff's  theory  as  to  the  cause  of  the  accident  has  been  over- 
thrown by  sufficient  evidence.'^® 

Instructions  invading  province  of  jury. — The  existence  of  negligence  or  of 
disputed  facts  should  not  be  assumed." 


scene  of  the  accident — Citizen's  St.  R.  Co.  v. 
Stockdell,   159  Ind.   25. 

Starting  or  jerkins  while  passenger  is 
alighting.  Toler  v.  Yazoo  &  M.  V.  R.  Co. 
(Miss.)  31  So.  788;  Baldwin  v.  Grand  Trunk 
R.  Co.,  128  Mich.  417;  Steinle  v.  Met- 
ropolitan St.  Ry.  Co.,  69  App.  Div.  (N.  Y.) 
85;  Ludeman  v.  Third  Ave.  R.  Co.,  72  App. 
Div.  (N.  Y.)  26;  Muller  v.  Metropolitan  St. 
R.  Co.,  77  App.  Div.  (N.  Y.)  221;  Houston  & 
T.  C.  R.  Co.  V.  Harris  (Tex.  Civ.  App.)  70 
S.  W.  335;  Bartle  v.  Houghton  County  St.  Ry. 
Co.  (Mich.)  93  N.  W.  620;  Doolittle  v.  South- 
ern Ry.,  62  S.  C.  130.  Rapid  rounding  of  a 
curve,  while  plaintiff  was  standing  prepar- 
ing to  alight — Whitaker  v.  Staten  Island 
Midland  R.  Co.,  72  App.  Div.  (N.  Y.)  468. 
Starting  of  car  by  negligence  of  defendant's 
employees,  where  it  is  contended  that  a 
starting  signal  was  given  by  some  one  on 
the  rear  platform — O'Neil  v.  Lynn  &  B.  R. 
Co.,  180  Mass.  576. 

Negligence  with  regard  to  traclis  or  prem- 
ises. Ice  on  street  car  steps — Herbert  v. 
St.  Paul  City  Ry.  Co.,  85  Minn.  341;  Rich- 
mond Ry.  &  Elec.  Co.  v.  West,  4  Va.  Sup.  Ct. 
112,  40  S.  E.  643;  Foster  v.  Old  Colony  St. 
Ry.  Co.,  182  Mass.  378.  Injury  from  being 
thrown  under  a  car  at  a  station  by  a  crowd, 
the  car  having  entered  the  station  at  a 
dangerous  rate  of  speed  and  there  being 
no  one  to  control  or  direct  the  movements 
of  the  crowd — Muhlhause  v.  Monongahela  St. 
Ry.  Co.,  201  Pa.  237.  Passenger's  arm  struck 
by  defective  mail  crane — Baltimore  &  O.  S. 
W.  Ry.  Co.  v.  Sims,  28  Ind.  App.  544.  Evi- 
dence held  insufficient  to  show  that  a  derail- 
ment was  due  to  negligence  in  the  construc- 
tion of  a  track,  as  against  a  theory  that  a 
rail  had  been  intentionally  removed — Whip- 
ple V.  Michigan  Cent.  R.  Co.  (Mich.)  90  N. 
W.  287.  Platform  not  sufficiently  lighted — 
Duell  V.  Chicago  &  N.  W.  Ry.  Co.,  115  Wis. 
516.  Unlighted  platform — Kansas  City,  M. 
&  B.  R.  Co.  V.  McShan  (Miss.)  33  So.  223. 
Failure  to  keep  station  grounds  lighted  and 
safe — Davis  v.  Houston,  E.  &  W.  T.  Ry.  Co. 
(Tex.  Civ.  App.)  68  S.  W.  733;  Duell  v.  Chi- 
cago &  N.  W.  Ry.  Co.,  115  Wis.  516.  Ex- 
press invitation  by  agent  to  pass  over  dan- 
gerous grounds — Davis  v.  Houston.  E.  &  W. 
T.  Ry.  Co.  (Tex.  Civ.  App.)  68  S.  W.  733. 
Ninety-one  year  old  plaintiff  got  off  on  the 
wrong  side  of  the  train,  being  told  by  the 
conductor  that  it  was  safe,  and  when  after 
the  train  left,  while  walking  along,  what  he 
supposed  was  the  platform,  in  the  dark, 
fell  off  and  was  injured,  held  sufficient 
against  motion  for  nonsuit — Owen  v.  Wash- 
ington &  C.  R.  R.  Co.,  29  Wash.  207,  69  Pac. 
757.  To  show  that  a  cold  contracted  by  an 
infant  plaintiff  was  due  to  the  negligence  of 
the  carrier  in  failing  to  heat  its  cars — St. 
Louis  S.  W.  Ry.  Co.  v.  Duck  (Tex.  Civ.  App.) 
72  S.  W.  445. 


Contributory  negligence.  Berry  v.  Utlca 
Belt  Line  St.  R.  Co.,  76  App.  Div.  (N.  Y.) 
490.  Attempting  to  alight  from  a  street 
car — Cincinnati,  H.  &  I.  R.  Co.  v,  Worthing- 
ton  (Ind.  App.)  65  N.  E.  557.  Sudden  start- 
ing of  train — Illinois  Cent.  R.  Co.  v.  Taylor, 
24  Ky.  L.  R.  1169,  70  S.  W.  825.  Standing  on 
the  platform  preparing  to  alight — Baltimore 
Consol.  Ry.  Co.  v.  Foreman,  94  Md.  226. 
Standing   on   platform — Farnon   v.    Boston   & 

A.  R.  Co.,  180  Mass.  212.  Care  with  regard 
to  slippery  steps — Foster  v.  Old  Colony  St. 
Ry.  Co.,  182  Mass.  378.  Passing  around 
the  rear  of  a  street  car,  after  alighting,  on 
the  track  of  a  car  moving  in  the  opposite 
direction — Harten  v.  Brightwood  Ry.  Co.,  IS 
App.  D.  C.  260;  Hornstein  v.  United  Rys.  Co. 
(Mo.  App.)  70  S.  W.  1105.  Fall  from  running 
board  after  sudden  jerk  of  car — Sheeron  v. 
Coney  Island  &  B.  R.  Co.,  78  App.  Div.  (N. 
Y.)  476.  Leap  from  the  street  car  to  avoid 
a  collision  with  a  railroad  train — Robson  v. 
Nassau  Elec.  R.  Co.,  80  App.  Div.  (N.  Y.)  301. 
Alighting  from  moving  train  or  car — Chicago. 

B.  &  Q.  R.  Co.  V.  Winfrey  (Neb.)  93  N.  W. 
526;   Johnson   v.   Atlantic   &  N.   C.   R..   130  N. 

C.  488;  Bruce  v.  Brooklyn  Heights  R.  Co.,  68 
App.  Div.  (N.  Y.)  242;  United  Rys.  &  Elec. 
Co.  V.  Beidelman,   95  Md.   480. 

73.  Definiteness.  Injury  to  person  in 
charge  of  stock — Bolton  v.  Missouri  Pac.  Ry. 
Co.  (Mo.)  72  S.  W.  530.  Use  of  word  "station" 
concerning  a  street  railway  not  erroneous — 
Maxey  v.  Metropolitan  St.  Ry.  Co.,  95  Mo.  App. 
303.  Permission  to  consider  lack  of  the  stat- 
utory number  of  brakemen  does  not  allow  re- 
covery on  mere  ground  of  violation  of  the 
statute — Comerford  v.  New*  York,  N.  H.  &  H. 
R.  Co.,  181  Mass.  528. 

Double  issues.  Insufficiency  of  time  to 
board  and  starting  with  a  sudden  jerk  may 
be  submitted  together. — Texas  &  P.  Ry.  Co.  v. 
Gray  (Tex.  Civ.  App.)  71  S.  W.  316.  Not  con- 
fusing as  submitting  together  failure  to  stop 
and  making  of  a  sudden  start. — Indianapolis 
St.  Ry.  Co.  V.  Hockett  (Ind.)   66  N.  E.  39. 

74.  Instructions  held  to  properly  state  the 
rule  as  to  burden  of  proof — Freeman  v.  Col- 
lins Park  &  B.  Ry.  Co.  (Ga.)  43  S.  E.  410.  An 
instruction  that  if  it  is  found  that  plaintiff 
was  injured  and  suffered  pain  and  that  such 
injury  was  caused  by  the  carelessness  of  de- 
fendant he  might  recover  does  not  place  the 
burden  of  proving  defendant's  negligence  on 
plaintiff — Whittlesey  v.  Burlington,  C.  R.  & 
N.  Ry.  Co.   (Iowa)    90  N.  W.  516. 

75.  Form  of  instructions  suggested — Da- 
vis v.  Paducah  Ry.  &  Light  Co.,  24  Ky.  L.  R. 
13.5.  68  S.  W.  140. 

76.  Johnson  v.  Galveston,  H.  &  N.  Ry.  Co., 
27   Tex.  Civ.  App.   616. 

77.  Assuming  negligence  In  going  to  sleep 
and  jumping  from  moving  train  in  the  dark 
— Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Shelton  (Tex.  Civ. 
App.)    69  S.  W.  653.     In  opening  and  shutting 


§    26L 


ACTIONS  FOR  INJURIES.     INSTRUCTIONS. 


491 


InsirucUons  empliasizing  or  omitting  particular  facts. — Facts  to  be  established 
by  plaintiff  may  be  grouped  in  an  instruction,  if  in  such  a  manner  as  not  to  con- 
fuse the  Jury  or  pass  an  opinion  on  the  evidence."" 

Conformity  of  instructions  with  evidence. — Instructions  not  justified  by  the 
evidence  should  not  be  given.''^ 

Conformity  of  instructions  with  issues. — Where  there  are  several  distinct  char- 
ges of  negligence,  instructions  should  not  limit  plaintiff's  right  to  recover  to  one 
only.*°  Where  there  is  no  evidence  to  support  a  count,  recovery  on  such  count  should 
be  excluded  by  an  instruction.^^  The  fact  that  evidence  on  a  question  not  in  issue 
was  received  without  objection  does  not  authorize  an  instruction  on  such  question.^^ 
Instructions  should  be  so  worded  as  to  preclude  recovery  for  want  of  care  not 
contributing  to  the  accident,^'  and  should  not  be  so  worded  as  to  permit  a  recov- 
ery if  defendant  was  negligent  in  one  respect  and  plaintiff  was  injured  from  an- 
other cause.^*  Decisions  as  to  the  relevancy  of  instructions  to  the  issues  are 
collected  in  the  notes.^° 

Instructions  as  to  the  extent  of  the  carrier's  liahility  where  the  decisions  appear 
to  be  based  on  the  form  of  the  instruction,  rather  than  the  substance,  are  grouped 
below.  The  substantive  law  regarding  liability  has  been  treated  in  a  preceding  sec- 
tion.*' 


car  door — St.  Louis  S.  "W.  Ry.  Co.  v.  Ball  (Tex. 
Civ.  App.)  66  S.  W.  879.  Error  to  assume  that 
car  was  not  in  sole  charge  of  plaintiff's  em- 
ployer— Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Carter 
(Tex.  Civ.  App.)  71  S.  W.  73.  Error  to  with- 
draw credibility  of  defendant's  witness  and 
contributory  negligence — Kellegher  v.  Forty- 
Second  St.,  M.  &  St.  N.  Ave.  R.  Co.,  171  N.  Y. 
309.  Not  erroneous  as  assuming  that  a  train 
was  being  made  up  (Texas  &  P.  Ry.  Co.  v. 
Adams  [Tex.  Civ.  App.]  72  S.  W.  81);  as  as- 
suming that  Injury  was  disputed — Whittlesey 
v.  Burlington,  C.  R.  &  N.  Ry.  Co.  (Iowa)  90 
N.  W.  516. 

78.  St.  Louis  S.  W.  Ry.  Co.  v.  Byers  (Tex. 
Civ.  App.)  70  S.  "W.  558.  Instruction  held  not 
objectionable  as  singling  out  particular  facts 
in  an  action  for  Injury  by  a  collision — Flem- 
ing V.  St.  Louis  &  S.  F.  R.  Co.,  89  Mo.  App. 
129.  Omitting  to  mention  spreading  rails  or 
loose  spikes  is  not  error — Johnson  v.  Galves- 
ton, H.  &  N.  Ry.  Co.,  27  Tex.  Civ.  App.  616. 

79.  Evidence  held  insufficient  to  warrant 
instructions  on  failure  of  signal  by  plaintiff 
to  stop  and  invitation  by  defendant  to  board 
(South  Chicago  City  Ry.  Co.  v.  Dufresne,  200 
111.  456);  on  theory  of  unavoidable  accident; 
on  theory  of  misunderstanding  not  negli- 
gence (Hennessy  v.  St.  Louis  &  S.  Ry.  Co. 
[Mo.]  73  S.  W.  162);  on  punitive  damages  for 
improper  language  and  mental  suffering  (St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Wilson,  70  Ark. 
136) ;  on  lack  of  knowledge  of  plaintiff's  pres- 
ence on  a  stock  car  (Gulf.  C.  &  S.  F.  Ry.  Co.  v. 
Carter  [Tex.  Civ.  App.]  71  S.  W.  73);  on  the- 
ory that  language  should  be  such  as  to  hu- 
miliate person  of  peculiar  temperament  (Tex- 
as &  P.  Ry.  Co.  V.  Tarkington,  27  Tex.  Civ. 
App.  353);  on  effect  of  guard  rail  as  adding 
to  safety  (Whitaker  v.  Staten  Island  Mid- 
land R.  Co.,  65  App.  Div.  [N.  Y.]  451);  that 
plaintiff  was  thrown  forward  from  his  seat 
(Chitty  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co..  166  Mo. 
435);  on  duty  to  prevent  insults  by  station 
agents  (St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Wil- 
son, 70  Ark.  136);  on  scope  of  authority  of 
porter  of  chair  car  (Texas  &  P.  Ry.  Co.  v. 
Kingston  [Tex.  Civ.  App.]   68  S.  W.  518);  that 


neglect  to  make  rules  and  regulations  for 
protection  of  passengers  is  negligence — Mer- 
rill V.  Metropolitan  St.  Ry.  Co.,  73  App.  Div. 
(N.    Y.)    401. 

80.  Where  negligence  Is  alleged  In  care- 
less management  of  a  car.  In  starting  while 
plaintiff  was  getting  on,  and  in  jerking  the 
car,  an  instruction  that  "If  you  believe  from 
the  evidence  that  by  the  starting  of  the  car 
plaintiff  was  jerked,  slung,  or  thrown  one 
way,  and  by  the  stopping  of  the  car  plaintiff 
was  not  jerked,  slung  or  thrown  the  other 
■way,  your  verdict  must  be  for  defendant,"  is 
erroneous — Birmingham  Ry.  &  Elec.  Co.  v. 
Ellard,  135  Ala.  433. 

81.  Birmingham  Ry.  &  Elec.  Co.  v.  Bran- 
non,  132  Ala.  431. 

82.  Where  negligence  alleged  was  In  the 
starting  of  a  car  before  plaintiff  had  time  to 
alight,  the  jury  should  not  be  instructed  on 
the  duty  of  defendant  to  assist  plaintiff  off — 
Indiana  Ry.  Co.  v.  Maurer  (Ind.)  66  N.  E.  156. 

83.  Suse  V.  Metropolitan  St.  Ry.  Co.,  80 
App.  Div.   (N.  Y.)  24. 

84.  Where  negligence  in  moving  a  car  and 
in  having  an  improperly  constructed  plat- 
form are  submitted  together — Missouri,  K.  & 
T.  Ry.  Co.  V.  Hay  (Tex.  Civ.  App.)  67  S.  W. 
171. 

85.  Assumption  of  risk  by  passenger  after 
alighting  (Indianapolis  St.  Ry.  Co.  v.  Whit- 
aker [Ind.]  66  N.  E.  433);  on  care  In  running 
and  management  of  train  (Western  Md.  R. 
Co.  V.  State,  95  Md.  637);  on  duty  to  carry 
passenger  to  destination  (West  Chicago  St. 
R.  Co.  V.  Lleserowitz,  197  111.  607);  on  sim- 
ilar duties  of  railroad  company  in  action 
against  street  railroad  (Gilmore  v.  Seattle  & 
R.  R.  Co.,  29  Wash.  150.  69  Pac.  743);  on 
jerking  before  stopping — Metropolitan  St. 
Ry.  Co.  V.  Hudson  (C.  C.  A.)  113  Fed.  449. 

86.  See  ante,  §  26  A  et  seq.  Instructions  as 
to  negligence  need  not  be  carefully  drawn 
where  the  carrier's  negligence  is  gross — Cen- 
tral Tex.  &  N.  'W.  Ry.  Co.  v.  Smith  (Tex.  Civ. 
App.)  73  S.  W^.  537.  InstructiouH  held  not  er- 
roneous. To  the  effect  that  the  carrier  o'wes  a 
passenger  the  greatest  care  to  save  him  from 


492 


CARRIERS   OF   PASSENGERS. 


§  26L 


Instructions  as  to  contributory  negligence. — Instructions  as  to  contributory 
negligence  should  be  given  where  asked  and  required  by  the  evidence.^^  Where 
the  evidence  is  contradictory  and  no  motion  to  instruct  the  jury  was  presented  at 
the  close  of  plaintiff's  evidence,  the  jury  need  not  be  instructed  after  all  the  evi- 
dence is  in  that  defendant  may  avail  itself  of  contributorily  negligent  acts  of 
plaintiff,  whether  established  by  the  e\'idence  of  plaintiff  or  defendant,  if  the  jury 
are  instructed  to  say  from  the  whole  evidence  whether  there  was  contributory  neg- 
ligence.®^ The  defendant  has  a  right  to  instructions  as  to  negligence  of  plain- 
tiff in  attempting  to  board  a  train  while  in  motion.®^  Miscellaneous  holdings  as 
to  instructions  on  contributory  negligence  are  grouped  in  the  notes.^° 

Instructions  cured  by  other  insi ructions. — Instructions  improper  as  ignoring 
particular  issues  or  failing  to  state  the  relative  liabilities  of  the  parties  with  suffi- 
cient particularity  may  sometimes  be  cured  by  the  construction  of  instructions  as 
a  whole.     For  examples,  see  the  footnotes.^^ 


harm,  and  that  whether  the  carrier  has  exer- 
cised the  degree  of  care  depends  on  circum- 
stances and  on  the  jury's  conception  of  what 
was  the  highest  degree  of  care — CarroU  v. 
Charleston  &  S.  R.  Co.,  65  S.  C.  378.  Not  er- 
roneous as  making  carrier  an  insurer  (Clukey 
V.  Seattle  Elec.  Co.,  27  Wash.  70,  67  Pac.  379); 
as  requiring  too  great  care  to  avoid  collision 
(Memphis  St.  R.  Co.  v.  Norris,  108  Tenn. 
632);  as  demanding  the  highest  degree  of 
care  consistent  with  the  undertaking  (Gal- 
ligan  V.  Old  Colony  St.  Ry.  Co.,  182  Mass. 
211);  as  not  considering  the  practicable 
prosecution  of  business  (Larkin  v.  Chicago  & 
G.  ^Sf.  Ry.  Co.  [Iowa]  92  N.  W.  891);  as  not 
stating  care  required  of  pregnant  woman  (St. 
Louis  S.  W.  Ry.  Co.  v.  Ferguson,  26  Tex.  Civ. 
App.  460);  as  limiting  necessity  of  notice  of 
intention  to  alight  to  porter  only  (Texas  &  P. 
Ry.  Co.  V.  Funderburk  [Tex.  Civ.  App.]  68 
S.  W.  1006);  as  imposing  absolute  liability  for 
boisterous  language  of  station  agent  (St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  V\aison,  70  Ark. 
136);  not  restricting  liability  for  defects  in 
cars  of  other  company  and  eliminating  con- 
tributory negligence  (Western  Md.  R.  Co.  v. 
State,  95  Md.  637);  as  to  taking  care  in  extent 
of  stop  (St.  Louis  S.  W.  Ry.  Co.  v.  Harrison 
[Tex.  Civ.  App.]  73  S.  W.  38);  as  rendering 
carrier  liable  for  concurrent  negligence 
(Southern  Ry.  Co.  v.  Roebuck,  132  Ala.  412); 
as  withdrawing  question  of  defendant's  neg- 
ligence (Louisville  &  M.  R.  Co.  v.  Steenber- 
ger.  24  Ky.  L.  R.  761,  69  S.  W.  1094);  as  re- 
qviiring  highest  degree  of  care  under  the 
circumstances — Chicago  &  A.  R.  Co.  v.  Mur- 
phy,  198  111.  462. 

Instructions  held  erroneous  as  not  submit- 
ting defendant's  negligence  (Foley  v.  Bruns- 
wick Traction  Co.,  66  N.  J.  Law,  637);  as  re- 
quiring only  ordinary  care  in  starting  (St. 
Louis  S.  W.  Ry.  Co.  v.  Harrison  [Tex.  Civ. 
App.]  73  S.  W.  38);  as  imposing  too  great  a 
duty  to  keep  ticket  offices  open  (Missouri, 
K.  &  T.  Ry.  Co.  v.  Mills,  27  Tex.  Civ.  App. 
245);  as  assuming  duty  to  anticipate  collision 
with  a  truck — Suse  v.  Metropolitan  St.  Ry. 
Co..  80  App.  Div.   (N.  T.)   24. 

87.  So  It  is  improper  to  refuse  an  instruc- 
tion that  if  plaintiff  acted  contrary  to  the 
way  an  ordinarily  prudent  person  v.-ould  have 
acted  and  his  conduct  contributed  to  the  in- 
jury, he  could  not  recover — Selma  St.  & 
Suburban  Ry.  Co.  v.  Owen.  132  Ala.  420.  In 
an  action  based  on  the  ground  that  plaintift 


became  ill  through  failure  to  heat  a  station, 
an  instruction  that  plaintiff  could  not  recover 
if  she  remained  out  of  doors  after  a  fire  was 
built  in  the  depot,  and  that  such  act  which 
would  not  have  been  done  by  a  person  of 
ordinary  care  caused  her  sickness,  should 
have  been  given — St.  Louis  S.  W.  Ry.  Co.  v. 
Patterson  (Tex.  Civ.  App.)  73  S.  W.  987.  As 
where  evidence  conflicts  as  to  ■^^•hether  plain- 
tiff was  warned  that  it  was  dangerous  to  re- 
main on  the  platform  or  whether  he  was 
there  at  the  invitation  of  the  conductor — St. 
Louis  S.  W.  Ry.  Co.  v.  Ball  (Tex.  Civ.  App.) 
66  S.  W.   879. 

SS.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Hoover,  3 
Ind.    T.    693. 

89.  Brown  V.  Manhattan  Ry.  Co.,  115  N.  T. 
St.  Rep.   755. 

90.  Proper  to  require  plaintiff's  acts  to  be 
voluntary  (Gorman  v.  St.  Louis  Transit  Co., 
96  Mo.  App.  602);  to  instruct  that  there  can 
be  no  recovery  for  concurrent  negligence — 
Hornstein  v.  United  Rys.  Co.  (Mo.  App.)  70  S. 
W.  1105.  Improper  to  instruct  that  plaintiff 
must  act  with  reasonable  care  and  judgment 
for  her  own  safety  especially  if  the  car  was 
unusually  overcrowded  (Davis  v.  Paducah 
Ry.  &  Light  Co.,  24  Ky.  L.  R.  135,  68  S.  W. 
140);  to  instruct  that  it  is  not  negligence  of 
itself  to  stand  on  a  car  platform  but  that  the 
jury  must  determine  negligence  from  all  the 
circumstances  (St.  Louis  S.  W.  Ry.  Co.  v.  Ball 
[Tex.  Civ.  App.]  66  S.  W.  879);  not  to  submit 
the  question  of  whether  the  act  would  have 
been  done  by  a  prudent  man — Missouri,  K.  & 
T.  Ry.  Co.  v.  Hay  (Tex.  Civ.  App.)  67  S.  W. 
171.  An  instruction  that  the  jury  should 
find  for  the  defendant  if  the  accident  was  not 
caused  by  defendant's  negligence,  impliedly 
excludes  contributory  negligence — Maxey  v. 
Metropolitan  St.  Ry.  Co.,  95  Mo.  App.  303.  In- 
struction held  not  to  deprive  defendant  of  the 
benefit  of  the  defense  of  negligence  arising 
out  of  plaintiff's  evidence — Chicago,  R.  I.  & 
P.  Ry.  Co.  v.  Buie  (Tex.  Civ.  App.)  73  S.  W. 
853.  An  instruction  concerning  a  dangerous 
position  assumed  by  plaintiff  must  require 
that  such  position  contributed  to  the  injury 
—Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Carter  (Tex. 
Civ.  App.)   71  S.  W.  73. 

91.  Error  cured.  Ignoring  partial  cause  of 
accident  or  excusing  negligence  (Johnson  v. 
Galveston,  H.  &  N.  Ry.  Co.,  27  Tex.  Civ.  App. 
616);  allowing  passenger  to  hold  to  car  rail 
after  getting  off — Gilmore  v.  Seattle  &  R.  R. 


§  28 


CARRIERS  OF  BAGGAGE. 


493 


Questions  for  jury. — A  conflict  of  evidence  as  to  facts  showing  negligence 
is  for  the  jury.^-  Matters  of  common  knowledge  should  not  be  submitted  to  the 
jury.»3 

Verdict  and  findings. — A  finding  that  plaintiff  was  not  injured  by  defendant's 
negligence,  but  by  her  own,  precludes  a  recovery  even  on  the  theory  that  plaintiff 
was  a  passenger.^*  A  finding  that  a  passenger  had  so  far  lost  his  bodily  powers 
as  to  be  incapable  of  the  exercise  of  care  when  he  was  received  as  a  passenger  can 
be  reviewed  on  appeal.^^  Where  it  is  found  that  there  was  negligence  in  not  giving 
a  passenger  reasonable  time  to  board  a  train,  and  in  starting  the  train  with  an 
unusual  jerk,  a  finding  for  plaintiff  is  conclusive  against  contributory  negligence.®" 

Part  5.  Carriage  of  baggage  and  passengers  effects.  §  37.  Rights,  duties, 
and  liahilities. — A  transfer  company  accepting  a  passenger  and  his  baggage  be- 
comes liable  for  the  baggage  without  regard  to  the  existence  of  a  custom  to  trans- 
fer baggage.®^  In  the  absence  of  contract,  the  carrier's  liability  for  baggage  ex- 
tends only  to  articles  carried  by  the  passenger  for  his  personal  use  and  convenience, 
and  the  carrier  is  not  made  liable  as  such  for  merchandise  in  a  trunk  by  the  fact 
that  excess  charges  are  paid  thereon.®®  Knowledge  of  the  contents  of  baggaga 
may  be  inferred  from  a  long  custom  to  accept  it  with  knowledge  of  the  owner's 
occupation.®® 

§  28.  Care  of  haggage  and  effects. — A  sleeping-car  company  is  liable  for 
passengers'  elfects  only  where  it  has  been  negligent  or  they  have  been  stolen  by  its 


Co.,  29  Wash.  150,  69  Pac.  743.  Failure  to 
limit  neg-ligence  to  proximate  cause  of  In- 
jury— Indianapolis  St.  Ry.  Co.  v.  Hockett 
(Ind.)  66  N.  E.  39.  Failure  to  instruct  as  to 
burden — West  Chicago  St.  R.  Co.  v.  Llesero- 
witz,  197  111.  607.  Failure  to  instruct  that  it 
is  not  negligence  to  allow  a  passenger  to 
ride  on  a  foot-board  (Anderson  v.  City  Ry. 
Co.,  42  Or.  505,  71  Pac.  659);  making  a  re- 
covery depend  on  position  of  plaintiff  (Chi- 
cago, R.  I.  &  P.  R.  Co.  V.  Hoover,  3  Ind.  T. 
693);  failure  to  submit  question  of  plaintiff's 
being  a  trespasser  in  an  action  for  assault 
(Murphy  V.  St.  Louis  Transit  Co.,  96  Mo.  App. 
272);  failure  to  submit  question  of  whether 
plaintiff  voluntarily  alighted — Southern  Ry. 
Co.  V.  Coursey,  115  Ga.  602.  An  instruction 
which  requires  It  to  be  found  that  defendant's 
servants  or  employes  were  not  at  fault  be- 
fore a  verdict  for  defendant  can  be  rendered, 
though  there  was  contributory  negligence,  is 
not  cured  by  the  giving  of  a  correct  charge 
on  request  which  does  not  refer  to  the  er- 
roneous one — International  &  G.  N.  R.  Co.  v. 
Anchonda  (Tex.  Civ.  App.)  68  S.  W.  743. 
TV'here  Instructions  are  given  as  to  the 
duty  of  elevated  railroads  not  to  start  until 
the  gates  have  been  firmly  closed,  until  pas- 
sengers on  the  platforms  have  actually 
boarded  the  cars,  and  that  the  plaintiff  has 
the  right  to  assume  that  a  train  which  she 
started  to  board  would  not  be  prematurely 
started,  an  instruction  for  defendant  should 
be  given  that  defendant  had  a  right  to  close 
Its  gates  and  start  Its  train  when  all  the 
persons  who  desired  to  stop  at  the  station 
had  left  the  train,  and  all  those  had  en- 
tered who  in  a  manner  apparent  to  the 
crowds  were  actually  evincing  a  desire  to 
board  it — Brown  v.  Manhattan  Ry.  Co.,  115 
N.  Y.  St.  Rep.  755.  A  charge  that  if  plaintiff 
negligently  failed  to  hear  a  station  an- 
nounced  and   under  the  impression  that  she 


had  reached  her  detlnatlon  attempted  to 
ahght  without  knowledge  of  defendant's  em- 
ployes after  the  train  had  been  held  a  rea- 
sonable time,  and  the  train  was  started 
without  any  jerk  when  started,  then  the  find- 
ing should  be  for  defendant,  does  not  cover 
a  request  for  an  Instruction  that  plaintiff 
could  not  recover  if  the  station  was  distinct- 
ly called  in  her  presence  and  hearing  just 
before  the  train  arrived,  and  she  negligently 
failed  to  hear  the  same,  and  the  train  was 
held  a  reasonable  time  for  passengers  to 
alight,  and  she  attempted  to  alight  without 
the  knowledge  of  defendant's  employes  and 
was  Injured  in  such  attempt— Galveston,  H.  & 
S^A  Ry.  Co.  V.  Mathes  (Tex.  Civ.  App.)  73  S 
Vv.    411. 

93.  The  case  cannot  be  dlsmis.sed  at  de- 
fendant's motion — Parlier  v.  Southern  Ry 
Co.,  129  N.  C.  262. 

93.  Knowledge  of  a  passenger  on  a  freight 
train  as  to  liability  of  jerks  and  jars  is  not 
for  the  jury— Southern  Ry.  Co.  v.  Crowder, 
135  Ala.   417. 

loo^^'^f.^^^  ^-  Chicago  &  N.  W,  Ry.  Co., 
1  y o   111.    551. 

95.  Wheeler  v.  Grand  Trunk  Ry.  Co.,  70  N 
H.  607,  54  L.  R.  A.  955. 

96.  Texas  &  P.  Ry.  Co.  v.  Gray  (Tex.  Civ. 
App.)  71  S.  W.  316. 

97.  City  Transfer  Co.  v.  Draper,  115  Ga. 
954. 

98.  Ky.  St.  §  783 — Illinois  Cent.  R.  Co.  v. 
Matthews,  24  Ky.  L.  R.  1766,  72  S.  W.  302. 

99.  Merchandise  had  been  carried  by 
plaintiff  over  defendant's  route  for  six  years 
in  trunks  different  from  the  usual  ones  and 
there  "was  evidence  that  a  baggageman  had 
stated  that  the  trunks  contained  ladies' 
dresses,  though  they  were  received  as  bag- 
gage— Amory  v.  Wabash  R.  Co.  (Mich.)  90 
N.  W.  22. 


494 


CARRIERS  OF  BAGGAGE, 


8  29 


servants.*  Its  liability  is  that  of  a  bailee  for  hire  and  not  of  an  insurer.  It  is 
liable  for  theft  by  its  servants  to  a  limited  extent,  and  is  bound  to  maintain  a  rea- 
sonable watch  during  the  night  to  protect  passengers'  personal  belongings.^  Its 
employes  may  be  negligent  in  failing  to  keep  windows  closed  at  stations  so  as  to 
prevent  theft.'  Where  a  passenger  is  allowed  to  occupy  a  bed  in  the  smoking  com- 
partment of  a  sleeper,  the  duties  of  the  company  toward  him  are  the  same  as  if 
he  were  in  a  regular  berth,  and  he  does  not  assume  any  greater  risks  as  to  his 
personal  belongings.  His  articles  of  wearing  apparel,  etc.,  are  in  the  mixed  cus- 
tody of  the  passenger  and  the  company,  and  the  fact  that  he  retires  with  the  win- 
dow open  to  his  knowledge  does  not  render  him  negligent  unless  it  was  left  open 
at  his  request,  and  even  in  such  case  he  may  recover  unless  his  property  is  stolen 
from  the  outside  through  the  window  by  a  stranger.*  The  liability  of  a  carrier  for 
baggage  is  that  of  an  insurer  as  to  articles  necessary  for  the  passenger's  comfort, 
but  for  additional  articles  it  is  but  a  bailee  and  is  not  compelled  to  carry  them 
unless  paid  an  additional  compensation.^  The  carrier  is  not  liable  for  the  theft 
of  mone}^,  by  one  of  its  employes,  which  has  been  placed  on  a  car  window  sill 
and  temporarily  forgotten.  It  is  not  liable  for  such  as  a  bailee,  and  such  money, 
if  not  for  traveling  expenses,  is  not  baggage.*  Heavy  rain,  as  an  act  of  God,  will 
not  excuse  damage  to  baggage  unless  injury  could  not  have  been  prevented  by  any 
reasonable  care.''  The  carrier's  liability  is  as  warehouseman  for  baggage  left  un- 
claimed in  its  station.*  Where  trunks  are  forwarded  in  the  usual  manner  and 
are  destroyed  while  being  detained  in  a  custom  house,  a  steamship  company  which 
was  the  initial  carrier  is  not  liable."  The  last  of  connecting  carriers  is  not  liable 
for  baggage  lost,  unless  it  is  shown  that  the  baggage  has  come  in  its  possession, 
or  that  there  was  a  joint  contract  or  partnership,  or  a  ratification  of  a  contract 
of  preceding  carriers,  and  proof  that  it  employed  tracers  for  lost  baggage  does  not 
show  that  it  is  a  party  to  the  original  contract,  nor  is  a  ticket  bought  from  an  initial 
carrier  over  several  lines,  which  is  signed  by  the  last  line  named,  sufficient  to  render 
such  line  liable  for  baggage  lost,  without  showing  that  it  came  into  its  possession.^** 
The  fact  that  the  agent  of  the  initial  carrier  is  also  agent  of  a  connecting  carrier 
does  not  render  it  liable  for  injuries  occasioned  by  connecting  carriers,  if  the  con- 
tract limit  its  liability  to  its  own  line.^* 

§  29.  Limitation  of  liability  for  haggage. — The  fact  that  a  ticket  provides 
that  a  contract  of  carriage  shall  be  governed  by  the  English  law  does  not  render 
valid  an  exemption  from  liability  for  negligence  with  regard  to  baggage  contrary 
to  the  public  policy  of  the  United  States.^*     The  company  may  limit  its  liability 


1.  PuUman  Sleeping  Car  Co.  v.  Hatch 
(Tex.  Civ.  App.)   70  S.  W.  771. 

2.  Liability  Is  for  the  necessary  baggage 
or  money  of  the  passenger,  regard  being 
had  to  the  character,  duration  and  purposes 
of  the  journey  though  the  passenger  was 
negligent — Morrow  v.  Pullman  Palace  Car  Co. 
(Mo.  App.)   73  S.  W.   281. 

3.  Evidence  held  sufficient  for  such  pur- 
pose— Pullman  Palace  Car.  Co.  v.  Arents 
(Tex.  Civ.  App.)   66  S.  W.  329. 

4.  Morrow  v.  Pullman  Palace  Car  Co.  (Mo. 
App.)   73  S.  W.  281. 

5.  Passenger  cannot  recover  for  an  em- 
broidered table  center  piece  or  a  dress  be- 
longing to  her  mother,  lost  from  her  personal 
baggage — BuUard  v.  Delaware,  L.  &  W.  R. 
Co.,    21    Pa.    Super.    Ct.    583. 

6.  Levins  v.  New  York,  N.  H.  &  H.  R.  Co. 
(Mass.)   66  N.  E.  803. 

7.  J.  Harzburg  &  Co.  v.  Southern  Ry.  Co.. 


65  S.  C.  539;  Henry  Sonneborn  &  Co.  v.  South- 
ern Ry.,   65   S.  C.   502. 

8.  Where  baggage  arriving  at  nine  A.  M. 
is  not  called  for  and  is  stolen  from  the  bag- 
gage-room during  the  night,  the  carrier's 
liability  is  that  of  a  warehouseman — St. 
Louis  &  S.  F.  Ry.  Co.  v.  Terrell  (Tex.  Civ. 
App.)   72  S.  W.  430. 

9.  The  steamship  agent  gave  a  receipt  of 
the  trunks  "for  transfer  by  slow  freight" 
to  an  interior  town — Parker  v.  North  Ger- 
man Lloyd  S.  S.  Co.,  74  App.  Div.   (N.  Y.)   16. 

10.  Texas  &  N.  O.  R.  Co.  v.  Berry  (Tex. 
Civ.  App.)  71  S.  W.  326. 

11.  Askew  V.  Gulf,  C.  &  S.  F.  Ry.  Co.  (Tex. 
Civ.    App.)    73    S.    "W.    846. 

12.  Limitation  of  a  carrier's  liability  for  a 
passenger's  baggage  to  $50  on  a  first  cabin 
passage  across  the  Atlantic  in  a  first  class 
steamship  is  unreasonable;  especially  where 
not    called   to   the   attention    of    a    passenger 


CASE,   ACTION   ON. 


495 


for  baggage  by  regulations,  of  which  the  passenger  has  notice,  -which  are  reasonable 
and  consistent  with  statute  or  public  duty,  and  such  limitation  may  be  by  notice 
printed  on  an  excursion  ticket."  Unless  negligence  is  alleged,  the  validity  of  a  stipu- 
lation relieving  the  company  from  liability  for  negligence  cannot  be  questioned.^* 

§  30.  Damages. — There  can  be  no  recovery  for  deprivation  of  the  use  of  ar- 
ticles or  for  inconvenience  and  mental  distress;  the  measure  of  damages  is  the 
actual  value  of  the  articles  destroyed.^' 

§  31.  Remedies  and  procedure  for  injury  to,  or  loss  of,  baggage. — One  liable 
to  the  owner  of  goods  which  he  checks  as  baggage  may  be  regarded  as  their  owner 
in  an  action  for  damage.^' 

The  petition  must  state  an  itemized  list  of  baggage  destroyed  with  the  value 
of  each  article  and  the  extent  of  damage  thereto.^^  Where  a  plea  is  in  confession 
and  avoidance,  it  is  defective  if  it  merely  admit  hypothetically.*^  If  a  demurrer 
to  an  answer  setting  up  a  limitation  of  liability  is  sustained,  recovery  on  the  evi- 
dence need  not  be  restricted  to  the  amount  limited.^® 

The  presumption  of  negligence  arising  from  a  derailment  is  not  rebutted  by  the 
fact  that  the  derailment  was  caused  by  a  slide  of  dirt  and  rocks,^"  The  passenger 
must  prove  a  delivery  of  the  baggage  to  the  carrier.^^ 

The  right  of  a  carrier  to  limit  its  liability  for  baggage  is  a  question  for  the 
court,  though  the  reasonableness  of  its  limitation  is  for  the  jury,^^  as  is  the  question 
of  negligence.^^  Holdings  are  grouped  below  as  to  admissibility  of  evidence/*  suffi- 
ciency of  evidence/^  and  instructions.^* 

CASE,  ACTION   ON. 
Case  is  the  proper  remedy  in  Ehode  Island  for  recovery  of  a  tax  under  a  stat- 


and  loss  results  from  a  theft  or  conversion 
by  the  carrier's  servants — The  New  England, 
110   Fed.   415. 

13.  Jacobs  V.  Central  R.  Co.,  19  Pa.  Super. 
Ct.    13. 

14.  Houston,  E.  &  W.  T.  Ry.  Co.  v.  Seale 
(Tex.  Civ.  App.)  67  S.  W.  437. 

16.  Houston,  E.  &  W.  T.  Ry,  Co.  v.  Seale 
(Tex.  Civ.  App.)   67  S.  W.  437. 

16.  Illinois  Cent.  R.  Co.  v.  Matthews,  24 
Ky.  L.  R.   1766,  72  S.  W.  302. 

17.  Insufficient  to  state  "The  articles  de- 
stroyed consisted  of  three  dresses  worth 
$300,  that  the  articles  Injured  consisted  of 
shirt  waists,  collars,  cuffs  and  ladies'  under- 
garments"— Houston,  E.  &  W.  T.  Ry.  Co.  v. 
Seale   (Tex.   Civ.  App.)    67  S.  W.   437. 

18..  Plea  in  action  for  loss  of  passenger's 
baggage  stating  that  if  the  baggage  was  re- 
ceived it  was  on  an  express  limitation  of 
liability  that  the  law  of  New  Jersey  governed 
the  contract  if  any,  and  that  by  such  law  de- 
fendant's liability  was  limited — Saleeby  v. 
Central  R.,  40  Misc.   (N.  Y.)   269. 

19.  Houston,  E.  &  W.  T.  Ry.  Co.  v.  Seale 
(Tex.  Civ.  App.)   67  S.  W.  437. 

20.  Thomas  v.  Southern  R.  Co.,  131  N.  C. 
590. 

31.  Evidence  held  insufficient  to  show  de- 
livery of  baggage  to  carrier — Lustig  v.  Inter- 
national Nav.  Co.,  3S  Misc.   (N.  Y.)    802. 

22.  Houston,  E.  &  W.  T.  Ry.  Co.  v.  Seale 
(Tex.  Civ.  App.)  67  S.  W.  437. 

23.  The  negligence  of  the  sleeping  car 
company  and  contributory  negligence  of  the 
passenger  as  well  as  the  sufficiency  of  evi- 
dence to  show  theft  by  an  employe  may  be 


questions   for  the  jury — Morrow  v.  Pullman 
Palace  Car  Co.  (Mo.  App.)  73  S.  W.  281. 

24.  On  an  Issue  of  wilful  negligence,  spe- 
cial damage  may  be  shown  where  trunks  are 
put  ofif  during  a  severe  rain  without  protec- 
tion— Henry  Sonneborn  &  Co.  v.  Southern 
Ry.,  65  S.  C.  502. 

25.  Evidence  that  a  trunk  which  had  been 
delivered  by  a  passenger  to  a  steamship  com- 
pany contained  her  wearing  apparel  and 
was  returned  to  her  empty  sometime  after 
the  termination  of  the  voyage  Is  sufficient. 
If  there  is  no  other  evidence,  to  justify  a 
finding  that  it  was  opened  and  rifled  by  the 
company's  servants — The  New  England,  110 
Fed.  415.  Where  a  carrier  refuses  to  transfer 
a  box  as  baggage  and  demanded  the  return  of 
a  check  given  for  it,  which  was  done  on  the 
agent  agreeing  to  forward  the  box  by  freight, 
conflicting  evidence  tending  to  show  that 
the  box  was  negligently  treated  and  damaged 
will  justify  a  recovery — Southern  Ry.  Co.  v. 
Wood.  114  Ga.  159.  Evidence  held  insufficient 
to  show  taking  of  property  by  sleeping  car 
porter,  rendering  the  company  liable — Pull- 
man Sleeping  Car  Co.  v.  Hatch  (Tex.  Civ 
App.)  70  S.  W.  771.  Proof  that  when  the  pas- 
senger received  baggage  from  the  transfer 
company  to  which  the  carrier  delivered  it  as 
his  agent,  certain  articles  were  missing  will 
not  render  the  carrier  liable — Galveston,  H.  & 
S.  A.  Ry.  Co.  V.  Schafermeyer  (Tex.  Civ.  Add  ■) 
72    S.    W.    1037.  ^^"^ 

26.  A  charge  that  the  giving  of  a  check 
for  a  trunk  imposing  the  burden  of  care  in 
transporting  and  delivering  it  Is  not  a  charge 
on  the  facts — J.  Harzburg  &  Co.  v.  Southern 
Ry.   Co.,   65   S.   C.   539.  "uinern 


496 


CAUSES   OF  ACTION  AND  DEFENSES. 


ute,^^  and  case,  not  trespass,  is  the  proper  remedy  for  injuries  resulting  from  wrong- 
ful acts  of  agents  or  servants  without  authority  of  the  principal,  but  for  which  he  is 
responsible.-*  In  case  for  purchase  of  lumber  by  defendant  with  notice  of  a  timber 
owner's  lien,  plaintiff  has  the  burden  of  showing  that  defendant  had  notice  of  the 
lien  as  alleged.^* 

CAUSES  OF  ACTION  AND  DEFENSES. 

This  article  deals  only  with  abstract  and  fundamental  principles.  To  collect  all 
applications  of  them  would  be  an  impossible  as  well  as  useless  labor.  Specific  articles 
as  well  as  the  general  practice  titles,  herein  referred  to,  must  be  consulted.  Some 
right  in  the  plaintiff  is  essential/"  whence  the  court  refuses  to  decide  moot  ques- 
tions.^^ Some  right  and  not  a  mere  declaration  of  rights  must  be  the  object.^^  A 
mere  anticipation  of  injury  is  not  actionable.^^  Whether  a  cause  of  action  is  one 
arising  out  of  contract  or  by  a  tort  becomes  material  in  applying  certain  remedies.^* 
The  existence  of  a  claim  implies  a  right  of  action.^^  The  question  most  often  arises 
as  one  of  pleading,  where  it  is  objected  that  there  is  a  misjoinder  or  a  splitting  of 
causes.  Such  cases  will  be  found  in  "Pleading."  In  like  manner  questions  of 
joinder  and  splitting  are  also  referable  to  the  title  "Pleading."  Joinder  of  parties 
will  be  treated  under  "Parties,"  and  the  consolidation  or  severance  of  actions  under 
the  article  on  "Trial."  A  single  act  may  be  several  torts.^®  Separate  obligations 
under  one  contract  may  each  support  an  action.^^ 

Defenses. — Impropriety  of  a  plaintiff's  motives  is  not  a  defense.^*  An  offer 
in  the  nature  of  a  disclaimer  must  be  without  reserve  or  condition.^^  The  omission 
of  an  attorney  to  pay  an  occupation  tax  is  not  a  defense  against  his  client's  action.*" 
That  plaintiff  may  have  so  acted  as  to  afford  a  defense  to  action  against  a  third  per- 
son is  no  defense.*^  The  existence  of  an  equitable  remedy  is  not  generally  a  defense 
to  an  action  at  law,"  but  the  converse  is  true.*^  Violation  of  the  terms  of  a  policy 
sued  on  is  defense,  but  not  matter  of  abatement.**     An  answer  setting  up  a  divorce 


27.  Franklin  v.  "Warwick  &  C.  Water  Co. 
(R.  I.)    52  Atl.   988. 

28.  Assault  on  a  customer  in  a  store  by 
servants  of  proprietor — Mossessian  v.  Callan- 
der  (R.  I.)   52  Atl.  806. 

20.  Thornton  v.  Dwight  Mfg.  Co.  (Ala.) 
34   So.   187. 

30.  Adversary's  wrong  is  not  enough — 
Home  Fire  Ins.  Co.  v.  Barber  (Neb.)  93  N.  W. 
1024. 

31.  State  V.  Lambert,  52  "W.  Va.  248;  State 
V.  Savage  (Neb.)  91  N.  W.  557;  State  v. 
Broatch  (Neb.)  94  N.  "W.  1016.  Whether  of- 
fice is  held  by  election  or  appointment  held 
moot — Johnson  v.  Smith,  24  Ky.  L.  R.  883, 
70  S.   W.   192. 

Moot  questions  give  no  right  to  appeal  or 
review.    See  Appeal. 

32.  Southern  Ry.  Co.  v.  State  (Ga.)  42  S. 
E.  508.  Rights  of  members  of  insurance  com- 
pany— In  re  Hurst  Home  Ins.  Co.,  23  Ky.  L.  R. 
940.   64  S.  W.   512. 

33.  Priewe  v.  Fitzsimons  (Wis.)  94  N.  W. 
317. 

34.  For  example  Assumpsit  or  Trover 
which  see.  Also  to  determine  whether  at- 
tachment will  issue  as  on  a  "claim  arising 
out  of  contract."    See  Attachment. 

35.  Ayres  v.  Thurston  County,  63  Neb.  96. 

36.  Injury  to  person  and  property  by  same 
act — Eagan  v.  New  York  Transp.  Co.,  39  Misc. 
(N.  T.)  111.    Distinct  injuries  to  husband  and 


wife — Stewart  v.  Alvis  (Ind.  App.)  65  N.  E. 
937.  A  survivable  tort  to  the  person  cannot 
be  joined  with  a  cause  of  action  for  death 
by  wrongful  act — Thomas  v.  Star  &  C.  Mill- 
ing Co..  104  111.  App.  110. 

37.  Instalments  under  one  contract — Col- 
well  v.  Fulton,  117  Fed.  931.  Suing  for  the 
balance  after  settlement  by  mistake  does  not 
split  the  cause  though  an  assignee  sues — 
Goodson  v.  National  Ace.  Ass'n,  91  Mo.  App. 
339. 

38.  Suit  by  a  stock  holder  to  enjoin  issue 
of  bonds — Hodge  v.  United  States  Steel  Corp. 
(N.  J.  Eq.)  53  Atl.  553. 

39.  Offer  to  surrender  to  trustee  in  bank- 
ruptcy provided  other  claims  be  waived — 
Frank  v.  Musliner,   76  App.  Div.   (N.  T.)    616. 

40.  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Carlock 
(Tex.  Civ.  App.)  75  S.  W.  931. 

41.  Roach  V.  Springer  (Tex.  Civ.  App.)  75 
S.  W.  933. 

42.  Garcelon  v.  Commei'cial  Trav.  Ace. 
Ass'n  (Mass.)   67  N.  E.  868. 

43.  See  the  title  Equity  citing  Jones  v. 
MacKenzie  (C.  C.  A.)  122  Fed.  390;  Inglis  v. 
Freeman  (Ala.)  34  So.  394;  Metz  v.  McAvoy 
Br'g  Co.,  98  111.  App.  584,  and  many  other 
cases. 

The  strictness  of  the  rule  is  modified  by  the 
circumstances — Vannatta  v.  Lindley,  98  111. 
App.   327. 

44.  Refusal   to   be   examined  concerning  a 


CEMETERIES. 


497 


to  an  action  against  a  husband  for  deserting  his  wife  whom  he  had  married  to  avoid 
prosecution  is  not  in  abatement.'"'  A  defense  of  prematurity  may  be  waived  by  go- 
ing to  trial.*®  As  against  a  denial,  the  court  will  not  lightly  infer  from  pleadings 
that  parties  have  colluded  to  confer  jurisdiction.*^ 

CEMETEIirES.48 

Cemetery  associations. — In  Kansas,  cemetery  associations  are  public  and  not 
private  corporations;*^  and  lot  owners  may  vote  on  all  matters  to  the  same  extent 
as  ordinary  stockholders  in  other  corporations. ^°  The  laws  of  Minnesota  do  not 
authorize  the  incorporation  of  cemetery  associations  for  private  speculation  and 
profit.^^  The  officers  of  the  association  therefore  become  trustees  of  the  lot  owners 
as  to  money  derived  from  sales  of  lots,  and  the  lot  owners  may  sue  to  compel  recog- 
nition of  the  trust  relation  and  a  restoration  of  misapplied  funds  to  the  treasury.^^ 
Grants  of  power  to  cemetery  associations  should  be  strictly  construed.^^ 

Public  control  of  location  of  cemeteries. — The  control  of  the  location  of  ceme- 
teries by  the  public  is  within  the  police  power  of  the  state.°*  On  refusal  of  an  appli- 
cation for  location  of  a  cemetery  by  the  New  Jersey  local  authorities,  an  appeal  lies 
to  the  state  board  of  health,^"  and  interested  persons  have  a  right  to  be  heard."*  The 
state  board  on  such  proceeding  is  not  required  to  examine  witnesses,  though  their  ac- 
tion is  of  a  judicial  nature,"^  and  is  not  confined  to  sanitary  considerations  in  deter- 
mining the  appeal."^  On  review  of  their  action  by  the  courts,  there  is  a  presumption 
that  the  decision  was  based  on  proper  grounds  which  can  only  be  overcome  by  the 
clearest  proof."*  Location  near  dwellings  is  not  necessarily  a  nuisance,*"  but  where 
so  situated  that  life  or  health  of  persons,  living  in  the  vicinity  will  be  endangered, 
the  location  may  be  enjoined,®^  and  one  specially  injured  or  threatened  with  a  special 
injury  by  the  location  may  question  the  legality  of  steps  taken  to  acquire  the  land.** 

Acquisition  of  land  for  cemetery  purposes  and  disposition  thereof. — A  cemetery 
company  may  take  title  to  land  for  cemetery  purposes  by  parol,*^  and  the  land  so 
acquired  may  not  be  sold  without  the  consent  of  the  stockholders  and  persons  who 
have  interred  dead  therein  on  the  faith  of  its  perpetual  use  for  burial  purposes.** 


fire  loss — Scottish  Union  &  Nat.  Ins.  Co.  v. 
Strain,  24  Ky.  L.  R.  958,  70  S.  W.  274. 

45.  State  V.  Lannoy  (Ind.  App.)  65  N.  E. 
1052. 

A  statutory  legal  remedy  in  a  different 
but  concurrent  jurisdiction  does  not  prevent 
resort  to  equity — Peck  v.  Ayers  Tie  Co.  (C. 
C.  A.)    116  Fed.   273. 

40.  Lake  v.  Anderson,  76  App.  Div.  (N.  T.) 
189. 

47.  Robinson  v.  Lee,  122  Fed.  1010. 

48.  See  Estates  of  Decedents,  for  expense 
of  monument  as  funeral  expense.  See,  Taxes, 
for  taxation   of  cemeteries. 

49.  50.  Davis  v.  Coventry,  65  Kan.  557,  70 
Pac.   583. 

51.  Gen.  St.  1894,  §§  2913-2929— Brown  v. 
Maplewood  Cemetery  Ass'n,  85  Minn.  498. 

52.  A  complaint  alleging  that  the  associa- 
tion has  no  capital  stock,  that  the  directors 
have  appropriated  to  their  own  use  moneys 
received  by  the  sale  of  the  lots  and  have 
refused  to  account  for  the  same  or  return 
the  money  into  the  treasury  of  the  associa- 
tion is  sufficient — Brown  v.  Maplewood  Ceme- 
tery Ass'n,  85  Minn.  498. 

53.  Palmer  v.  Hickory  Grove  Cemetery, 
116  N.  Y.  St.  Rep.  973. 

54.  Laws  of  1892.  N.  T.  p.  297,  c.  73,  gov- 

Cur.  Law — 32. 


ernlng  the  acquisition  of  lands  by  rural  cem- 
eteries, is  a  valid  exercise  of  legislative 
power  under  a  constitution  giving  the  legis- 
lature a  power  to  uphold  general  and  spe- 
cial acts  relative  to  corporations — Palmer  v 
Hickory  Grove  Cemetery,  116  N.  Y.  St  Reo 
973. 

55.  P.  L.  1885,  p.  165,  §  6— Dodd  V.  State 
Board  of  Health.  67  N.  J.  Law,   463. 

56.  Dodd  V.  State  Board  of  Health,  67  N 
J.   Law,   463. 

57.  They  may  consider  a  committee  re- 
port made  on  a  previous  hearing  of  the  same 
matter — Dodd  v.  Francisco  (N.  J.  Law)  53 
Atl.   219. 

58.  59.  Dodd  V.  Francisco  (N.  J.  Law)  53 
Atl.    219. 

60.  Braasch  v.  Cemetery  Ass'n  (Neb.)  95 
N.  W.   646. 

61.  Braasch  v.  Cemetery  Ass'n  (Neb  )  95 
N.  W.   646. 

62.  Palmer  v.  Hickory  Grove  Cemeterv 
116  N.  T.  St.  Rep.   973.  ^' 

63.  Woodland  Cemetery  Co.  v  Ellison  2-? 
Ky.    L.    R.    2222,    67   S.    W.    14. 

64.  Directors  selling  a  portion  of  a  burial 
tract  in  good  faith  will  not  be  held  personally 
liable  on  setting  aside  the  sale — Woodland 
Cemetery  Co.  v.  Ellison,  23  Ky.  L  R  222S  fir 
S.    W.   14.  ■  •  °' 


498 


CEMETERIES. 


A  deed  to  cemetery  trustees,  reciting  a  designation  of  trustees  by  town  authorities 
with  power  to  manage  as  they  should  deem  best,  gives  the  trustees  power  to  sell 
small  parcels  from  land  so  conveyed,®'  and  after  a  long  lapse  of  time,  a  presumption 
of  proper  performance  of  duties  in  this  respect  will  be  indulged.®®  A  grant  to  a 
community  for  cemetery  purposes,  too  indefinite  to  confer  title,  will  not  be  allowed 
to  fail  for  that  reason,  but  equity  will  appoint  trustees."  In  Illinois,  unincorporated 
towns  may  condemn,  lands  for  cemetery  purposes.®*  That  a  notice  of  purpose  to 
acquire  land  recited  that  it  was  done  by  order  of  the  board  of  directors  is  not  suffi- 
cient evidence  that  it  was  the  act  of  the  corporation,  where  rights  of  third  persons 
are  affected.®^  A  purchase-money  mortgage  for  cemetery  lands  given  by  a  cemetery 
association  may  be  foreclosed.'^® 

Title  to  and  rights  in  burial  lots. — There  is  presumption  of  payment  for  a 
cemetery  lot,  where  the  record  shows  continuous  ownership  for  thirty-seven  years,^^ 
and  trustees  have  no  right  to  sell  to  another,  unless  the  first  purchaser  has  abandoned 
the  lot  by  removal  from  the  neighborhood  or  by  other  acts  amounting  to  an  abandon- 
ment.''^ One  tenant  in  common  of  a  lot  may  not  appropriate  a  portion  of  a  lot  by 
the  erection  of  a  monument  without  consent  of  his  co-tenants.''*  Purchasers  of 
burial  lots  acquire  merely  a  right  to  use  the  lot,  subject  to  reasonable  regulations  of 
the  cemetery  association,''*  and  it  makes  no  difference  that  the  lot  was  conveyed  by 
warranty  deed.'' 

Licenses  for  burial  purposes. — In  Pennsylvania,  a  cemetery  association  may 
grant  an  exclusive  license  to  bury  dead  in  particular  lot.'® 

Grave  fees. — The  association  may  adopt  regulations  requiring  purchasers  to 
pay  the  fees  for  the  opening  and  filling  of  graves  to  the  superintendent,  without 
regard  to  whether  he  does  the  work,  where  the  fees  are  reasonable  and  uniform  in  all 
cases,"  and  the  courts  may  not  determine  the  amount  to  be  paid.'* 

Removal  of  bodies. — The  New  York  act,  allowing  removal  of  the  body  of  the 
widow  of  the  lot  owner  by  consent  of  the  heirs,  is  limited  to  lots  set  apart  to  partic- 
ular families,  and  does  not  authorize  removal  of  such  body  from  an  individual  grave 
in  an  undivided  portion  of  the  cemetery,  without  the  consent  of  the  corporation." 

Improvements. — A  cemetery  company  may  forbid  work  on  lots  by  individual  lot 
owners  and  require  all  work  in  the  care  of  graves  to  be  performed  under  the  direction 
of  the  superintendent  at  specified  rates,*®  and  a  gardener  employed  by  a  lot  owner 
having  no  contractual  relations  with  the  association,  may  not  question  the  reasona- 
bleness of  these  regulations.*^     A  bequest  of  a  permanent  fund  to  an  individual  trus- 


I 


65,  66.  City  of  Tacoma  v.  Tacoma  Ceme- 
tery,  28  Wash.   238.   68  Pac.   723. 

67.  It  will  not  be  declared  a  public  ceme- 
tery under  the  control  of  selectmen  and  cem- 
etery commissioners — Hunt  v.  Tolles  (Vt.) 
52   Atl.    1042. 

68.  Phillips  V.  Town  of  Scales  Mound,  195 
111.    353. 

69.  Palmer  v.  Hickory  Grove  Cemetery, 
116  N.  Y.  St.  Rep.  973.  Under  an  act  empow- 
ering supervisors  to  authorize  the  acquisition 
o£  lands  for  cemetery  purposes,  requiring 
notice  of  the  application  to  be  published  once 
a  week  for  six  weeks,  in  two  newspapers 
having  the  largest  circulation  therein,  no 
jurisdiction  is  conferred  where  the  applica- 
tion was  first  published  38  days  before  the 
day  set  for  hearing  and  was  not  published  in 
newspapers  having  the  largest  circulation  In 
the  county — Id. 

70.  Ross  v.  Glenwood  Cemetery  Ass'n,  81 
App.  Dlv.  (N.  Y.)  357.  Property  not  used  for 
interments  Is  not  prevented  from  being  sold 
on  foreclosure  by  the  statute  denying  the  su- 


preme court  the  right  to  order  sale  by  the 
cemetery  association  of  realty  used  for  actual 
interments — Id. 

71.  McWhirter  v.  Newell,  200  111.  583. 

72.  Purchaser  with  knowledge  will  not  be 
protected — McWhirter  v.  Newell,  200  111.  583. 
Abandonment  is  not  shown  by  the  fact  that 
interments  were  made  by  a  later  purchaser 
where  the  owners  on  learning  thereof  Insist- 
ed on  removal  and  afterwards  brought  suit 
to   compel   removal   of   bodies — Id. 

73.  And  other  tenants  may  remove  the 
monument  without  Incurring  liability  (Rev. 
L.  c,  78,  §§  26,  27) — Capen  v.  Leach.  182  Mass. 
175. 

74.  75.  Roanoke  Cemetery  Co.  v.  Goodwin 
(Va.)  44  S.  E.  769. 

76.  Congregation  Shaarai  Shomayim  v. 
Moss,  22  Pa.  Super.  Ct.  356. 

77,  78.  Roanoke  Cemetery  Co.  v.  Goodwin 
(Va.)   44  S.  E.  769. 

79.  In  re  Cohen,   76  App.  Div.    (N.  Y.)    401. 

80,  81.  Cedar  Hill  Cemetery  Co.  v.  Lees,  22 
Pa.  Super.  Ct.  405. 


CENSUS.     CERTIORARI. 


499 


tee  for  the  improvement  of  a  cemetery  is  not  authorized  by  the  California  act,  al- 
lowing formation  of  cemetery  improvement  corporations.^^ 

Abandonment. — On  abandonment  of  lands  granted  to  the  public  for  cemetery 
purposes,  the  title  will  revert  to  the  original  donors.^^  An  ordinance  prohibiting 
burials  will  not  work  an  abandonment.** 

Injuries  to  cemetery  lands  will  be  enjoined.'" 

CENSUS  AND  STATISTICS. 

Census. — A  federal  census  is  not  conclusive  on  the  question  of  population,®'  and 
a  city  may  take  a  census  under  a  state  law,  within  two  months  after  the  federal  cen- 
sus, and  this  particularly  where  territory  had  been  added  in  the  meantime.®'^  Where 
an  ordinance  providing  for  a  census  did  not  confine  the  enumerator  to  any  particular 
territory,  a  recanvass  of  his  work  by  another  enumerator  is  not  irregular,**  An 
enumerator  acts  in  his  official  capacity  in  correcting  schedules  after  the  expiration  of 
the  time  for  making  the  enumeration,  and  is  liable  under  the  federal  statute  for 
making  a  false  return.*' 

Vital  statistics. — In  a  prosecution  for  failure  to  report  a  case  of  consumption,  the 
question  whether  consumption  is  to  be  classed  with  other  dangerous  diseases  may  not 
be  submitted,^"  and  it  is  not  a  defense  that  a  physician  may  not  disclose  information 
acquii'ed  while  attending  a  patient.®^ 

CERTIORARI. 


S  !•  Natnre,  Occasion  and  Propriety  of  the 
Remedy. 

§  2.     Right  to  Certiorari;  Parties. 

§  S.  PreHeednre  for  Writ;  Writ;  Service 
and  Return. — Application;  Bond;  Writ;  No- 
tice; Return;  Objections  and  Amendments  to 
Return;  Effect  of  Writ;  Quashal  or  Dismiss- 
al. 


§   4.     Hearlns>   and   Question*   Wblcli    May 
he  Raised  or  Settled. 
§  5.     Judgment. 
§  6.     Costs. 
§  7.     Review  of  CertlorarL 


§  1.  Nature,  occasion  and  propriety  of  the  remedy. — Its  office  is  very  generally 
regulated  by  statute.  The  common-law  remedy  lies  to  reach  jurisdictional  errors,'** 
or  as  a  prerogative  writ  of  appellate  courts  to  supervise  lower  courts,'*  and  only  upon 
acts  of  a  judicial  nature,'*  which  are  final,'^  and  which  are  not  wholly  void.'^ 


82.  In  re  Gay's  Estate,  138  Cal.  552,  71 
Pac.   707. 

83,  84.     Kansas  City  v.  Scarritt,  169  Mo.  471. 

85.  Hunt  V.  Tolles  (Vt.)  52  Atl.  1042. 

86.  State  v.  Davis   (Neb.)    92  N.  W.  740. 

87.  Census  was  taken  to  determine  limit 
of  debt  according'  to  population — Lancaster 
V.  Owensboro,  24  Ky.  L.  R.  1978,  72  S.  W.  731. 

88.  Lancaster  v.  Owensboro,  24  Ky.  L.  R. 
1978.  72  S.  W.  731. 

89.  30  Stat.  1020,  c.  419— Chlng  V.  United 
States   (C.  C.  A.)   118  Fed.  538. 

90.  91.  People  V.  Shurly  (Mich.)  91  N.  W. 
i.-^g. 

92.  People  V.  Warden,  37  Misc.  (N.  T.) 
545,  109  N.  Y.  St.  Rep.  1114.  An  act  need  not 
be  grossly  abusive  of  power — People  v.  Adam, 
74  App.  Dlv.    (N.  Y.)    604. 

Errors  aflfecting  Jurisdiction.  Judgment 
by  a  justice  which  he  could  in  no  event  ren- 
der— Starry  v.  State,  115  Wis.  50.  Embracing 
irrelevant  papers  in  order  for  examination 
before  trial  and  falling  to  limit  time — State 
V.  District  Ct.,  27  Mont.  441,  71  Pac.  602. 
Judgment  after  jurisdiction  lost  by  adjourn- 
ment— Vandervoort  v.  Fleming  (N.  J.  Law) 
53  Atl.   225. 


Not  going  to  Jurisdiction.  Refusal  of  con- 
tinuance— Bisque  v.  Herrlngton  (Cal.)  72  Pac. 
336.  Rulings  on  trial  and  judgment  of  dis- 
missal— State  V.  District  Ct.,  27  Mont.  280,  70 
Pac.  981.  Refusal  to  dismiss  appeal — Eels  v. 
Bailee  (Iowa)  92  N.  W.  668.  Refusal  to  dis- 
miss an  appeal  for  want  of  justification  of 
sureties — State  v.  District  Ct.,  27  Mont.  179, 
70  Pac.  516.  Refusal  to  remand  cause  im- 
properly transferred — State  v.  Circuit  Ct. 
(Wis.)  93  N.  W.  16.  Jurisdiction  to  appoint 
receiver  pendente  lite  for  cause  not  enumer- 
ated in  statute  sustained — Glbbs  v.  Morgan 
(Idaho)  72  Pac.  733.  A  decision  on  appeal 
held  not  an  excess  of  jurisdiction  as  deciding 
points  not  In  issue — People  v.  Court  of  Ap- 
peals  (Colo.)   69  Pac.  606. 

93.  A  ruling  below  on  the  sufficiency  of 
the  supersedeas  bond  may  be  so  reviewed — 
Home  Sav.  &  Tr.  Co.  v.  District  Ct.  (Iowa) 
95  N.  W.  522.  When  the  district  court  has 
jurisdiction,  a  writ  of  certiorari  to  the  su- 
preme court  of  New  Jersey  must  now  rest 
on  the  latter  court's  supervisory  common  law 
powers  and  not  on  the  "District  Court  act" 
which  allows  certiorari  only  to  question  the 
jurisdiction    [applied  on  question   of  costs] — 


500 


CERTIORARI. 


§1 


It  will  not  issue  when  inadequate  because  of  the  necessity  of  afllrmative  relief,®^ 
or  when  the  relator  must  in  any  event  fail/^  or  where  the  writ  will  be  futile.®^ 

It  should  not  be  allowed  in  the  first  instance  if  another  adequate  remedy  exists/ 
for  instance,  appeal  or  error.-  But  appeal  is  inadequate  when  the  taking  of  it  would 
waive  the  defect,^  and  failure  to  resort  to  appeal  is  excused  by  lack  of  knowledge  of 
the  judgment.*  It  may  lie,  though  the  error  is  capable  of  rectification  in  the  pro- 
ceeding brought  up." 


C.  B.  Smith  &  Co.  V.  State  (N.  J.  Law)  52  Atl. 
308.  It  will  so  issue  when  an  attempt  is 
made  to  take  property  unlawfully  by  eminent 
domain  and  there  is  no  appeal — Seattle  &  M. 
R.  Co.  V.  Bellingham  Bay  &  E.  R.  Co.,  29 
Wash.  491,  69  Pac.  1107;  State  v.  Superior  Ct., 
30  Wash.  219,  232,  70  Pac.  484.  A  prerogative 
writ  reviews  only  the  jurisdiction  and  not 
the  merits— State  v.  Smith  (Mo.)  73  S.  W. 
211. 

94.  Gaster  v.  State  (Wis.)  94  N.  W.  787. 
A  state  auditor  acts  judicially  In  determining 
a  controversy  as  to  where  property  shall  be 
taxed — State  v.  Dunn,  86  Minn.  301.  Judicial 
act  defined. — Id.  Proceeding  by  city  council 
of  Brunswick  to  dismiss  policeman  Is  judicial 
—Gill  V.  Brunswick  (Ga.)  44  S.  E.  830.  Acts 
of  penitentiary  commission  in  Arkansas  are 
purely  administrative — McConnell  v.  Arkan- 
sas Mfg.  Co.,  70  Ark.  568.  Making  a  civil 
service  classification  Is  administrative — Peo- 
ple V.  Burt,  170  N.  Y.  620.  A  determination  of 
the  public  character  of  a  use  for  which  land 
is  to  be  taken  is  judicial — Seattle  &  M.  R.  Co. 
V.  Belllngham  Bay  &  E.  R.  Co.,  29  Wash.  491, 
69  Pac.  1107.  Act  of  city  council  In  annexing 
territory  is  judicial — Moore  v.  City  Council 
(Iowa)  93  N.  W.  510. 

Hence  mandamus  and  certiorari  are  not 
concurrent — Flanders  v.  Roberts,  182  Mass. 
524. 

95.  Unger  v.  Fanwood  Tp.  (N.  J.  Law)  55 
Atl.  42.  Order  refusing  to  dismiss  for  want  of 
jurisdiction  not  final — State  v.  Miller,  109  La. 
704.  Refusal  to  enter  judgment  against  gar- 
nishee not  final — Singer  Mfg.  Co.  v.  McNeal, 
etc..  Co.  (Ga.)  44  S.  E.  801.  Discharge  on  ha- 
beas corpus  is  final — Commonwealth  v.  But- 
ler, 19  Pa.  Super.  Ct.  626. 

96.  Levadas  v.  Beach,  117  Ga.  178.  Fine 
was  Imposed  ex  parte  by  board  of  health — 
People  V.  Board  of  Health,  83  App.  Div.  (N. 
T.)    571. 

97.  As  where  a  cause  was  to  be  trans- 
ferred back — State  v.  Circuit  Ct.  (Wis.)  93 
N.   W.   16. 

9S.  His  pleadings  stated  no  case — Echols 
V.  Crawford,  116  Ga.  771. 

99.  As  to  review  taxes  which  are  by  stat- 
ute not  to  be  changed  because  current — City 
of  Hoboken  v.  Jersey  City  (N.  J.  Law)  53 
Atl.   595. 

1.  The  defense  that  property  Is  not  sub- 
ject to  taxation  [Gen.  St.  1894,  §  155'D]  being 
applicable  only  to  exempt  property  and  not 
to  that  taxed  in  the  wrong  place,  certiorari 
lies — State  v.  Dunn.  86  Minn.  301.  No  other 
remedy  lies  to  review  an  order  depleting  an 
officer's  salary  while  he  Is  absent — State  v. 
Lauder,  11  N.  D.  136.  Certiorari  not  available 
to  review  road  proceedings  when  review  by 
freeholders  Is  allowed — Devlne  v.  Olney  (N. 
J.  Law)    53  Atl.   466. 

Application  to  the  original  tribunal  Is  dis- 
pensed with  where  futile  because  proceeding 
1b  whollv  void — People  v.  Feitner,  39  Misc. 
(N.  T.)   474. 


2.  Morse  v.  Baake  (N.  J.  Law)  53  Atl. 
693.  Lies  where  there  is  no  appeal  from  jus- 
tice— Loloff  V.  Heath  (Colo.)  71  Pac.  IIIS. 
Appealable:  Judgment  for  recovery  of  land 
in  eminent  domain  is  appealable  and  with  it 
tlie  order  allowing  the  propriety  of  the  con- 
demnation. It  is  not  necessary  to  wait  for 
adjudication  of  damages — Tennessee  Cent.  R. 
Co.  v.  Campbell  (Tenn.)  75  S.  W.  1012.  Order 
for  partial  distribution — State  v.  District  Ct.. 
26  Mont.  378,  68  Pac.  411.  Judgment  imposing- 
fine  for  violation  of  ordinance,  and  overruling 
demurrer  and  objection  to  jurisdiction — State 
V.  Lockhart,  28  Wash.  460,  68  Pac.  894.  Judg- 
ment of  a  justice  on  verdict — Falconer  v. 
Simmons,  61  W.  Va.  172.  Judgment  for  a 
material-man — Weldon  v.  Superior  Ct.,  13S 
Cal.  427,  71  Pac.  502.  Refusal  of  district  court 
to  dismiss  appeal  from  lower  court — Eels  v. 
Bailee  (Iowa)  92  N.  W.  668.  Judgment  in 
district  court  on  appeal  from  mayor's  court — 
State  V.  Miller,  109  La.  704.  Injunctional  or- 
der relating  to  possession  of  property — Static 
V.  Superior  Ct.,  30  Wash.  177,  70  Pac.  256. 
Refusal  of  justice  to  set  aside  default — State 
V.  Laurendeau.  27  Mont.  522.  71  Pac.  754. 
Judgment  rendered  after  an  adverse  decision 
of  a  jurisdictional  fact — Kent  v.  Crenshaw 
(Iowa)  94  N.  W.  1131.  Order  of  highway 
commissioners  laying  road  and  justice's  judg- 
ment assessing  damages — Hagenbaumer  v. 
Heckenkamp,  202  111.  621.  Intermediate  order 
reviewable  on  appeal  with  final  order  is  not 
reviewable  by  certiorari — State  v.  District 
Ct.  (Mont.)  72  Pac.  867.  Not  appealable: 
Question  of  public  use  in  eminent  domain — 
State  v.  Superior  Ct,  30  Wash.  219.  232,  70 
Pac.  484. 

An  order  of  distribution  notwithstanding 
a  pending  appeal  from  annulment  of  another 
will  Is  appealable  by  the  executor  who  re- 
sisted it — State  V.  Superior  Ct.,  28  Wash.  677, 
69  Pac.  375. 

Appeal  Is  not  inadequate  to  review  a  re- 
ceivership order  merely  because  It  would  ab- 
sorb "profits"  of  a  business;  but  property 
must  be  hazarded  to  a  loss  or  standing  of 
parties  jeopardized — State  v.  Superior  Ct.,  28 
Wash.   584,   68   Pac.   1052. 

Criiuinal  Proceedings,  Since  1884  certio- 
rari is  superseded  by  appeal  (Code  Cr.  Proc.  § 
515)  as  a  mode  of  reviewing  conviction  and 
sentence  on  a  prosecution  not  by  indictment 
— People  V.  Crane,  37  Misc.  (N.  Y.)  639,  lon 
N.  Y.  St.  Rep.  1111.  Will  not  lie  under  N.  Y. 
Code  to  review  cause  of  Imprisonment  of  one 
at  large  on  bail — People  v.  Pool,  77  App.  Div. 
(N.  Y.)  148.  Commitment  for  criminal  con- 
tempt is  not  appealable,  but  certiorari  lies — 
In  re  Teitelbaum,  116  N.  Y.  St.  Rep.  887.  Cer- 
tiorari as  prerogative  writ  may  He  after  ap- 
peal is  abandoned — State  v.  Pettigrew,  109 
La.  132. 

3.  Cause  was  tried  outside  the  jurisdic- 
tion— Swain  v.  Brady,  19  Pa.  Super.  Ct.  459. 

4.  Justice's  judgment  made  without  notice. 


S  3 


RIGHT  TO  REMEDY.     PARTIES. 


501 


Various  proceedings  wliich  are  not  appealable  are  reviewable  by  certiorari.*  It 
is  a  proper  remedy  in  Michigan,  if  promptly  pursued,  to  review  the  establishment 
of  a  school  district.'^ 

The  matter  ousting  jurisdiction  must  be  substantial.®  It  is  sufficient  that  error 
and  prejudice  co-exist.®  A  verdict  or  judgment  is  not  contrary  to  law  and  evidence 
if  there  is  any  evidence  to  support  it/'*  or  if  it  is  conflicting.^^  It  is  sufficient  that 
an  attempt  is  made  to  take  property  for  a  use  alleged  to  be  private.^^ 

Ancillary  certiorari. — Sometimes  the  writ  issues  as  ancillary  to  another  pro- 
ceeding.^^ 

A  prerogative  writ  from  a  court  of  last  resort  will  not  issue  where  a  court  of  gen- 
eral jurisdiction/*  or  a  lower  court^°  affords  a  remedy,  but  it  may  concur  with  the 
power  of  a  lower  court  to  issue  the  writ.^^  A  failure  to  follow  decisions  is  not  neces- 
sarily a  conflict  warranting  it.^'^  The  power  to  issue  prerogative  writs  "in  aid"  of 
appellate  jurisdiction  forbids  such  issue  to  a  court  whence  appeal  cannot  come.^* 
The  lower  court 's  discretion  wiU  not  be  disturbed  unless  it  has  been  abused.^' 

§  2.  Right  to  certiorari;  parties. — A  litigable  interest  in  relator  or  plaintiff  is 
necessaryj^"  for  which  purpose  private  or  individual  rights  are  distinct  from  a  repre- 
sentative capacity.^^  The  original  record  rather  than  a  printed  copy  wiU  determine 
who  are  proper  petitioners.^^ 

One  who  is  in  default  below  may  lose  the  right,^'  as  well  as  one  who  is  tardy  in 
seeking  his  remedy,^*  unless  the  proceeding  is  wholly  unlawful.^' 


time    for    appeal    having    elapsed — Elder    v. 
Justice's   Ct.,   136   Cal.    364,   68   Pac.   1022. 

5.  Error  improperly  brought  may  be  at- 
tacked by  certiorari — Security  Trust  Co.  v. 
Dent,   187  U.  S.  237. 

6.  Condemnation  proceeding's  for  a  ditch — 
Leyba  v.  Armijo    (N.  M.)    68  Pac.   939. 

7.  Huyser  v.  Scliool  Inspectors  (Mich.)  81 
N.  W.  1020. 

8.  Not  baseless  claim  of  right  under  fed- 
eral laws — State  v.  Bland,  168  Mo.  1. 

9.  Evidence  necessarily  harmful — Dougan 
V.  Dunham,  115  Ga.  1012;  Dye  v.  Napier  (Ga.) 
43  S.  E.  860.  Prejudice  Is  presumed  from 
wrong — State  V.  Sackett  (Wis.)   94  N.  W.  314. 

10.  Osborne  v.  Sims,  115  Ga.  97;  Wall  v. 
Macon,  D.  &  S.  R.  Co.,  115  Ga.  778;  Southern 
Ry.  Co.  V.   Pincher,   116  Ga.   966. 

11.  Clevenger  v.  Murray  (Tex.  Civ.  App.) 
67  S.  W.  469;  Lambert  Floral  Co.  v.  Lambert, 
117  Ga.  188. 

12.  One  railroad  for  another's  right  of 
way — Seattle  &  M.  R.  Co.  v.  Bellingham 
Bay  &  E.  R.  Co.,   29  Wash.  491,   69  Pac.   1107. 

13.  Mandamus  and  not  certiorari  Is  the 
remedy  to  bring  up  a  record  on  appeal — Ex 
parte  Grubbs,  80  Miss.  288.  To  bring  up  the 
record  on  appeal  to  affirm  but  not  to  reverse 
— Turman  v.  Whaley  (Fla.)  32  So.  811.  In 
aid  of  habeas  corpus  to  fetch  up  the  record — 
Gaster  v.  State  (Wis.)  94  N.  W.  787.  To 
bring  up  a  correction  of  record — Johnston  v. 
Arrendale  (Tex.  Civ.  App.)  71  S.  W.  44.  Cler- 
ical errors  cannot  be  corrected  in  appellate 
court — Smith  v.  Bunch  (Tex.  Civ.  App.)  73  S 
W.  559. 

14.  State  V.  Wilson,  90  Mo.  App.  154.  The 
sole  question  affected  an  Individual's  rights 
under  an  illegal  tax — Duluth  El.  Co.  v.  White 
11  N.  D.  534. 

15.  Certiorari  not  allowed  by  supreme 
court  until  rehearing  denied  by  court  of  ap- 
peals— Frellsen  v.  Ruddock  Cypress  Co.,  108 
La.  37. 


16.  Eminent  domain  proceedings  not  oth- 
erwise reviewable  are  open  to  certiorari  de- 
spite the  fact  that  inferior  courts  have  con- 
stitutional power  to  issue  the  writ,  the 
constitution  In  that  respect  being  declaratory 
and  not  restrictive — Tennessee  Cent.  R.  Co.  v. 
Campbell  (Tenn.)  75  S.  W.  1012. 

17.  The  court  below  had  not  regarded  it 
as  a  conflict  requiring  certification — State  v. 
Smith  (Mo.)   73  S.  W.  211. 

18.  Police  court  case  cannot  go  to  court 
of  appeals  on  an  original  certiorari — Sullivan 
V.  Dlst.  of  Columbia,  19  App.  D.  C.  210. 

19.  Home  Sav.  &  Tr.  Co.  v.  District  Ct. 
(Iowa)   95  N.  W.  522. 

20.  A  military  officer  having  a  voting 
right  may  review  an  order  for  an  election  of 
officers — Smith  v.  Wanser  (N.  J.  Law)  52  Atl. 
309.  Resident  taxpayers  may  sue  respecting 
annexation  to  municipality — Moore  v.  City 
Council  (Iowa)  93  N.  W.  510.  No  one  not 
specially  Injured  can  assail  a  public  ordi- 
nance— Unger  v.  Inhabitants  of  Fanwood  Tp. 
(N.  J.  Law)  55  Atl.  42.  Townships  may  sue 
to  reverse  a  proceeding  to  apportion  debts 
of  a  disorganized  county  among  the  several 
townships  which  composed  It — Fitch  v.  Audi- 
tors  (Mich.)   94  N.  W.  952. 

21.  Administrator  not  privately  interested 
in  order  to  turn  over  property — State  v.  Dis- 
trict Ct.,  26  Mont.  369.  68  Pac.  856. 

22.  Real  parties  in  interest  are — Fitch  v. 
Auditors   (Mich.)   94  N.  W.  952. 

23.  As  where  he  absented  himself  and 
hence  no  objection  was  made  to  evidence  be- 
fore a  medical  board  which  revoked  a  license 
— Stevens  v.  Hill,  74  Vt.  164.  Where  he  made 
no  defense — West  v.  Parkinson  (Mich.)  90  N. 
W.   27. 

24.  Huyser  v.  School  Inspectors  (Mich.) 
91  N.  W.  1020,  citing  many  cases  and  dis- 
tinguishing them.  Year's  delay — Coward  v. 
Bayonne,  67  N.  J.  Law,  470.  Two  months'  de- 
lay under  statute  requiring  notice  within  10 


502 


CERTIORARI. 


§3 


Several  petitioners  should  not  join  unless  one  adjudication  will  determine  their 
rights,^^  but  one  co-party  can  apply  alone.^^  The  attorney  general  should  apply  for 
a  prerogative  writ.^*  Officers  who  proceed  improperly  are  the  sole  respondents,^* 
but  unnecessary  parties  if  interested  may  be  admitted  to  defend.^" 

§  3.  Procedure  for  writ;  writ,  service  and  return. — Application  must  be  time 
ly."  In  Xew  York,  an  attorney  may  verify  the  petition.^^  In  Missouri,  none  is 
required.^'  Lack  of  jurisdiction  is  to  be  specifically  averred.^*  There  must  be  a 
showing  that  primary  remedies  are  inadequate  or  not  available,^''  as  well  as  suffi- 
cient grounds  for  the  writ.'*  Original  papers  should  not  be  attached  to  it.^^  Appli- 
cation for  a  prerogative  writ  should  show  a  want  of  remedy  in  lower  courts.'*  Mat- 
ters not  of  record  may  be  answered  to  show  that  despite  error  no  injustice  has  result- 
ed.3» 

In  New  York,  a  reference  of  fact  may  be  ordered  in  tax  cases  if  the  petition 
tenders  an  issue  going  to  reduction  or  cancellation  of  the  assessment.*"  A  judge 
of  the  reviewing  court  should  allow  the  writ.*^  Non-entry  of  allowance  of  the  writ 
is  not  fatal.'*^ 

The  statutory  hond  bearing  the  proper  signature  and  approval  is  prerequisite  to 
issuance  of  the  writ,*'  but  not  in  criminal  cases.**  The  bond  under  the  Georgia 
code  can  be  made  by  an  "agent"  only  when  he  is  specially  authorized.*^  The  affi- 
davit in  forma  pauperis  must  substantially  fulfill  the  statute,  or  the  writ  is  void.** 


days — Blumfleld  Tp.  v.  Brown   (Mich.)    90  N. 
W.    284. 

Unless  excused  (as  by  Ignorance) — Elder 
V.  Justice's  Ct..  136  Cal.  364,  68  Pac.  1022. 
18  months'  delay  after  docketing  case  on  er- 
ror held  too  long — Ayres  v.  Polsdorfer,  187 
U.  S.  585.  Party  having  knowledge  of  suit 
must  attack  it  within  time — Jacobs  v.  Brooke 
(Mich.)  92  N.  W.  783.  Six  years'  delay  with 
knowledge — Budd  v.  Camden  (N.  J.  Law)  54 
Atl.  569. 

25.  Eminent  domain — Slocum  v.  Neptune 
Tp.  (N.  J.  Law)  53  Atl.  301. 

26.  Statute  allows  joinder  to  assail  the 
"same"  matter  [L.  1896,  c.  908,  §  250] — Peo- 
ple V.  Feitner.  74  App.  Div.  (N.  Y.)  130. 

2T.  "Any  party"  may  (Code,  §  481) — Ex 
parte  Bogatsky.   134  Ala.   384. 

28.  Duluth  El.  Co.  V.  White,  11  N.  D.  534. 

29.  Adverse  party  to  the  cause  should  not 
be  joined — Chamberlain  v.  Edmonds,  18  App. 
D.  C.  332. 

30.  The  city  though  interested  is  not  nec- 
essary party  to  proceeding  against  tax 
board — In   re   Belmont,    40   Misc.    (N.   Y.)    133. 

31.  On  drain  proceedings  must  be  within 
10  days — Blumfleld  Tp.  v.  Brown  (Mich.)  90 
N.  "W.  284.  Finality  from  which  time  is  reck- 
oned begins  when  judgment  is  announced — 
Kyle  V.  Richardson  (Tex.  Civ.  App.)  71  S.  W. 
399.  An  order  must  be  recorded  before  it 
becomes  final  and  time  for  review  begins  to 
run — Peoplfe  v.  Vandewater,  83  App.  Div.  (N. 
Y.)  60.  See  as  to  tardiness  defeating  right 
to  certiorari,  supra. 

32.  In  re  Belmont,  40  Misc.   (N.  Y.)   133. 

S3.  An  illegal  verification  harmless  be- 
cause unnecessary — State  v.  Bennett  (Mo. 
App.)    73   S.   W.   737. 

34.  Presumption  favors  it — Hegenbaumer 
v.    Heckenkamp,    202   111.    621. 

35.  Frellsen  v.  Ruddock  Cypress  Co.,  108 
La.  37. 

36.  Weldon  v.  Ayers,  116  Ga.  181.  Allega- 
tions that  property  is  being  taken  for  a  use 
not   public  and  without  right   held   sufficient 


— Seattle  &  M.  R.  Co.  v.  Bellingham  Bay  &  E. 
R.  Co.,  29  "Wash.  491,  69  Pac.  1107.  Error 
must  be  assigned — Clements  v.  McCormick 
H.-M.  Co.,  115  Ga.  851.  Allegation  that  sub- 
stantial rights  are  affected  is  mere  conclusion 
and  needless — Ferguson  v.  Byers.  40  Or.  468, 
67  Pac.  1115,  69  Pac.  32.  Allegations  not  suflj- 
cient  to  plead  over  valuation  for  taxation — 
People  V.  Feitner,  39  Misc.  (N.  Y.)  463.  Alle- 
gations should  show  want  of  knowledge  of 
facts  in  order  to  negative  acquiescense — 
Stevens  v.  Somerset  County  Com'rs,  97  Me. 
121. 

Prerogative  -writ  will  not  issue  to  court  of 
limited  appeal  unless  some  excess  of  jurisaic- 
tion  appears — State  v.  Smith  (Mo.)  73  S.  W. 
211. 

37.  Brannon  v.  Dunahoo  (Ga.)  44  S.  E. 
991. 

38.  State  v.  Wilson,  90  Mo.  App.  154. 

39.  Hence  that  writ  should  not  issue — 
Ward  V.  Aldermen,  181  Mass.   432. 

40.  Whether  conveyors  of  a  public  service 
company  are  on  private  land  or  in  the  street 
[for  the  purpose  of  applying  the  proper 
method  of  taxation]  is  a  fact  to  be  decided 
by  reference;  but  the  allegation  that  property 
should  have  been  assessed  below  a  given 
sum  does  not  raise  such  an  issue  of  fact  as 
to  overvaluation — People  v.  Feitner,  39  Misc. 
(N.   Y.)    463. 

41.  Comp.  Laws,  §  937,  authorizing  a  court 
commissioner  "of  any  county"  does  not  mean 
"any  other"  county — Monroe  v.  Reynolds 
(Mich.)    90   N.   W.    1065. 

42.  People  v.  Stillings,  76  App.  Div.  (N.  Y.) 
143. 

43.  The  trial  justice  had  mentally  ap- 
proved it  but  had  not  yet  signed — Dykes  v. 
Twiggs  County,  115  Ga.  698.  Approval  al- 
lowed nunc  pro  tunc  under  Mo.  statute — Gos- 
sett  V.  Devorss  (Mo.  App.)  73  S.  W.  731. 

44.  Colvard  v.  State  (Ga.)   43  S.  E.  855. 

45.  Alabama  Midland  Ry.  Co.  v.  Stevens, 
116  Ga.  790.  And  it  cannot  be  ratified  retro- 
actively— Id.     Chief  clerk  of  local  depot  not 


§3 


PROCEDURE  FOR  WRIT. 


503 


The  writ  should  be  directed  to  a  municipality  whose  act  is  to  be  reviewed,  and 
not  to  officers.*'^  It  must  issue  from  a  court  and  not  from  chambers.**  It  should 
be  served  on  the  clerk  of  a  respondent  body  when  its  members  have  gone  out  of 
office.*^  It  is  not  a  summons  which  an  officer  must  serve.^"  Serving  a  copy  and 
filing  the  original  when  exact  duplicates  is  unimportant."^ 

Notice  of  writ  to  parties  in  original  cause  and  service. — Adverse  litigants  and 
persons  who  are  req^iired  to  appear  should  have  notice.''^  Plaintiff  must  be  diligent 
in  procuring  timely  service."  A  telegram  properly  delivered  has  been  held  a  suffi- 
cient written  notice  to  the  adverse  litigant.'*  A  certificate  of  service  should  be  dated, 
and  if  not  served  by  an  officer  should  be  verified."' 

The  return  should  be  signed  by  respondent,"^  and  be  sufficiently  authenticated." 
All  proceedings,  papers  or  matter  in  the  cause  must  be  returned,"*  and  others  may 
be  in  proper  cases."^  Eecords  brought  before  the  court  on  application  for  the  writ 
may,  if  identified  by  the  answer,  be  regarded  as  returned.***  The  return  by  a  court 
of  review  may  be  the  transcript  from  the  court  below.®^ 

Objections  and  amendments. — Exceptions  must  be  specific.®^  The  relator 
should  except  to,  or  traverse  a  return  which  leaves  it  doubtful  what,  if  anything,  was 
done  below,®^  else  it  will  conclude  him.**  Unless  the  petitioner  excepts  to  an  irre- 
pponsive  answer,  the  assignments  in  the  petition  cannot  be  heard.*"  If  only  law 
points  be  raised  by  a  traverse,  it  is  equivalent  to  a  demurrer.**  Motion  to  order 
certification  of  omitted  material  facts  and  not  motion  to  quash  the  record  is  the 
proper  remedy.*^  After  the  writ  issues,  the  record  is  conclusive ;  hence,  any  agreed 
statement  made  on  application  for  the  writ  cannot  be  avoided  or  discharged,  except 
on  application  in  the  nature  of  a  writ  of  review  on  grounds  of  mistake  warrantint' 
vacation  of  the  judgment.**    Impeaching  amendments  cannot  be  made,*®  thus,  when 


an  "agent"  competent  to  give  bond  for  rail- 
road  party — Id. 

46.  Hill   V.    State,    115   Ga.   833. 

47.  To  "township"  not  clerk  and  trustees 
— Young  V.  Crane,   67  N,  J.  Law,  453. 

48.  Const.  Colo.  art.  6,  §  3,  empowers  su- 
preme "court" — People  v.  District  Ct.  (Colo.) 
69  Pac.  1066.  [In  this  case  prohibition  was 
prayed  for.] 

49.  Their  order  was  on  file  with  him — 
State  V.  Losby,  115  "Wis.  57.  Ex  officers  may 
be  served  alone  if  their  return  will  be  com- 
plete without  that  of  the  custodian  of  rec- 
ords or  their  successors  (N.  T.  Code  Civ. 
Proc.) — People  v.  Stillings,  75  App.  Div.  (N. 
T.)   569. 

50.  Service  by  private  person  sufficient — 
Gossett  V.  Devorss  (Mo.  App.)  73  S.  W.  731. 

51.  Monroe  v.  Reynolds  (Mich.)  90  N.  W. 
1065. 

53.  Required  by  Georgia  Code,  §  4644 — 
Sheppard  v.  Walker  (Ga.)  44  S.  E.  801.  The 
solicitor-general,  who  is  required  to  appear, 
must  have  notice  on  a  writ  to  the  city  court 
from  the  superior  court — Culbreth  v.  State, 
115  Ga.  242. 

53.  Atlanta,  K.  &  N.  Ry.  Co.  v.  Whftaker, 
115  Ga.  644. 

64.  May  be  signed  by  relator  or  attorney 
W.  U.  Tel.  Co.  V.  Bailey,  115  Ga.  725. 

55.     Hardy   v.   Miller,    115   Ga.    107. 

66.  Not  by  counsel  only — ^Warren  v.  Hart, 
183   Mass.    119. 

57.  Certificate  of  evidence  In  inapt  form 
and  signed  before  writ  issued  held  insuffi- 
cient—Southern  Ry.  Co.  V.  Leggett,  117  Ga. 
81. 

58.  Even  an  indictment  originally  present- 


ed to  the  reviewing  court  and  by  it  trans- 
ferred down — Georgia  So.  &  F.  Ry.  Co.  v. 
State,  116  Ga.  845.  Tax  assessors  should  re- 
turn evidence  on  which  they  based  an  as- 
sessment—People V.  Feitner,  78  App.  Div. 
(N.  T.)  313.  Justice's  answer  under  Georgia 
practice  includes  evidence — Southern  Ry.  Co 
V.  Leggett,  117  Ga.  31. 

59.  Other  assessments  may  be  brought  up 
to  show  inequality — State  v.  Sackett  (Wis  > 
94  N.  W.  314. 

Evidence  must  be  set  out  by  justice  onlv 
in  prosecution  which  is  summary — N.  J  Soc 
for  Prevention  of  Cruelty  v.  Mickeloit  (N  J 
Law)    54  Atl.  559. 

60.  Warren  v.  Hart,  183  Mass.  119. 

61.  A  transcript  In  error  may  be  sent  up 
on  certiorari  to  the  proceeding  in  error Se- 
curity Trust  Co.  v.  Dent,  187  U.  S.  237. 

62.  Exception  for  omission  lield  suffi- 
cient— Daniels  v.  State   (Ga.)   44  S.  E.  818. 

63.  Tyner  v.  Leake   (Ga.)    44  S.  E.   812.    If 

he    does    not    the    writ    will    be    overruled 

Buckner  v.  State,  115  Ga.  238.  Answer  must 
show  a  Judgment — Garrett  v.  Mcintosh,  116 
Ga.  911. 

64.  Taylor  v.  Sandersville  (Ga.)  44  S.  E. 
845;  P.eople  v.  Pool,  77  App.  Div.   (N.  Y.)   148^ 

65.  Stoner   v.    Maglns,    116    Ga.    797. 

66.  A  traverse  to  a  magistrate's  return 
that  It  showed  no  warrant  held  in  effect  a 
demurrer  to  the  return — People  v.  Crane  37 
Misc.    (N.    Y.)    639,    109    N.    Y.    St.    Rep.    lill. 

67.  Tileston  v.  Street  Com'rs,  182  Mass 
325. 

68.  Application  was  made  to  discharge 
agreed  statement — Warren  v.  Hart,  183  Mass 
119. 


504 


CERTIORARI. 


§4 


the  record  is  silent  and  the  officers  who  made  it  are  out  of  office,  the  return  cannot 
be  amended  to  show  by  their  supplemental  return  that  they  considered  evidence 
which  would  make  the  proceeding  invalid.^" 

Effect  of  writ;  stay. — In  Xew  York,  a  stay  does  not  result,  but  may  be  allowed 
for  sufficient  reasonsJ^  A  recognizance  for  supersedeas  must  be  before  the  proper 
officer."  A  certiorari  in  aid  does  not  bring  up  a  cause  where  the  principal  proceed- 
ing is  defective.''' 

Quashal  or  dismissal. — The  court  issuing  a  writ  may  hear  a  motion  to  quash/* 
or  dismiss^^  before  return.  The  court  may  dismiss  if  parties  are  remiss  in  not  mov- 
inty  to  correct  a  bad  return.'^®  In  the  note  are  collected  grounds  for  dismissal." 
While  a  renewal  may  be  allowed,  yet  if  it  be  dismissed  as  void,  there  is  nothing  to 

78 


renew. 


S  4.  Hearing  and  questions  which  may  he  raised  or  settled. — The  writ  reaches 
only  the  judgment  and  not  irregularities  and  mere  errors.^'  Proper  and  timely 
objections  should  be  made  below,®"  though  it  has  been  held  that  exceptions  are 
unnecessary.*^  Errors  should  be  sufficiently  assigned.®^  Extraneous  matters,*'  even 
when  pleaded  as  a  reason  why  the  writ  should  be  refused  will  not,  though  traversed, 
be  heard  or  determined  on  hearing.'*    The  return  is  conclusive  of  facts  found  on  the 


69.  Street  commissioners  cannot  amend 
their  record  by  declaring  that  an  assessment 
was  for  a  purpose  other  than  that  expressed 
—Warren  v.  Hart,  183  Mass.  119. 

70.  Applied  where  former  police  commis- 
sioners returned  amendments  to  show  that 
the  record  of  an  officer's  prior  conduct  had 
been  considered  on  the  question  of  his  guilt 
contrary  to  law — People  v.  York,  78  App.  Div. 
(N.  Y.)    432. 

71.  Code  Civ.  Proc.  §  2131  does  not  en- 
large rights  to  or  grounds  for  a  stay.  Preju- 
dice of  relator's  superior  should  not  stay  re- 
moval from  office,  nor  should  allegations  of 
error;  and  when  removal  for  cause  was  after 
hearing  a  stay  until  review  is  improper — 
People  v.  Sturgis,  39  Misc.   (N.  Y.)   448. 

72.  If  taken  by  a  justice  other  than  the 
one  who  rendered  judgment  is  invalid  and 
judgment  cannot  be  entered  on  it — Wesley  v. 
Sharpe,  19  Pa.   Super.  Ct.  600. 

73.  Huguley  Mfg.  Co.  v.  Galeton  Mills, 
184  U.  S.  290,  46  Law.  Ed.  546. 

74.  State  v.  Fraker,  168  Mo.  445. 

75.  Motion  to  dismiss  is  in  the  nature  of 
a  demurrer — People  v.  Peck,  73  App.  Div.  (N. 
Y.)    89. 

76.  Failed  to  except  to  want  of  authenti- 
cation— Southern  Ry.  Co.  v.  Leggett,  117  Ga. 

31. 

lyiy.  Tardy  service  because  of  which  return 
was'not  made  in  time  for  return  term — At- 
lanta. K.  &  N.  Ry.  Co.  v.  Whitaker,  115  Ga. 
644.  irregularity  in  attaching  original  papers 
to  petition  not  cause  for  dismissal — Brannon 
v.  Dunahoo  (Ga.)  44  S.  E.  991.  Want  of  suffi- 
cient answer  and  of  motion  to  compel  it — 
Fain  v.  Shy,  115  Ga.  765;  Tyner  v.  Leake  (Ga.) 
44  S.  E.  812.  Issuance  before  approval  and  in- 
dorsement of  bond  renders  writ  dismissable 
Dykes  v.  Twiggs  County,  115  Ga.  698.  Pe- 
tition assigned  no  error — Clements  v.  McCor- 
mick  H.-M.  Co.,  115  Ga.  851.  Failure  to  make 
a  full  return  (writ  and  bond  omitted)  may 
be  cured — Monroe  v.  Reynolds  (Mich.)  90  N. 
W.  1065.  Bond  improper  because  signed  by 
agent  cannot  be  made  valid  after  motion  to 
dismiss — Alabama  Midland  Ry.  Co.  v.  Stev- 
ens, 116  Ga.  790. 


Case  or  question  become  moott  Voluntary 
dismissal  of  proceeding  below — State  v.  Third 
Judicial  Dist.  Ct.  (Nev.)  71  Pac.  664.  Cer- 
tiorari against  resolution  calling  charter 
election  is  moot  after  election  at  which  char- 
ter is  rejected — Smith  v.  Jersey  City  (N.  J. 
Law)   53  Atl.  811. 

78.  There  was  no  valid  bond — Southern 
Ry.  Co.  V.  Goodrum,  115  Ga,   689. 

79.  If  the  order  of  an  assessment  board 
taxes  "capital"  of  a  partnership,  certiorari 
will  not  reverse  it  because  earlier  In  the 
proceeding  the  words  "capital  stock"  were 
used — State  v.  Lewis   (Wis.)   95  N.  W.  388. 

80.  People  v.  Feitner,  39  Misc.  (N.  Y.)  463. 
Impropriety  of  conduct  of  counsel — Lanier 
V.  Byrd,  115  Ga.  200.  See  applications  of  an- 
alogous rule  in  the  article  "Saving  Questions 
for  Review."  Errors  were  consented  to  be- 
low— Ford  v.  Vinegar  Co.,  116  Ga.  793. 

81.  Because  certiorari  is  an  original  and 
not  an  appellate  proceeding — Coffey  v.  Gam- 
ble, 117  Iowa,  545. 

82.  Stanton  v.  Board  of  Educ'n  (N.  J.  Law) 
53  Atl.  236.  Averment  that  judgment  is  un- 
lawful may  suffice  if  error  is  apparent  on 
record — Marcellus  v.  Treasurer  (N.  J.  Law) 
52  Atl.  233.  Averments  held  to  specify  but 
one  error — Wing  v.  Blocker,  115  Ga,  778. 
Allegations  of  amount  of  benefit  and  of  as- 
sessment held  too  inferential  to  charge  er- 
ror consisting  in  inequality — Tileston  v. 
Street  Com'rs,  182  Mass.  325.  An  objection  in- 
sufficiently made  was  not  newly  averred  in 
petition  for  certiorari — People  v.  Feitner,  39 
Misc.   (N.  Y.)   463. 

83.  Stipulations — Knoell  v.  Jordan  (N.  J. 
Law)  53  Atl.  207.  Evidence  of  a  wrong  rul- 
ing not  contained  in  record — State  v.  Losby, 
115  Wis.  57.  Evidence  of  good  faith — Janvrin 
V.  Poole,  181  Mass.  463.  Affidavits  of  jurors  as 
to  whether  improper  evidence  was  consid- 
ered— Gildea  v.  Hill,  115  Ga.  136.  Affidavits 
which  are  not  part  of  petition  or  return  will 
be  ignored — Chamberlain  v.  Edmonds,  18 
App.  D.  C.  332. 

84.  Facts  alleged  to  make  error  harmless 
— Ward  V.  Aldermen,  181  Mass.  432. 


§6 


COSTS. 


505 


evidence,'^  but  this  conclusiveness  may,  it  seems,  be  waived."  Evidence  is  con- 
sidered only  so  far  as  affects  jurisdiction,  and  not  as  to  sufficiency.*''  Presumptions 
will  not  be  indulged  against  facts  in  the  record,*^  and  will  favor  the  court  below,®' 
but  the  rulings  will  not  be  sustained  on  a  different  ground  from  that  taken  by  the 
court.®"    In  many  instances  the  review  has  been  extended  by  statute  to  the  facts.*^ 

§  5.  Judgment. — Such  order  only  will  be  made  as  is  proper  on  the  record.'^ 
Final  judgment  should  be  rendered  if  the  case  admits  without  infringing  on  the 
trial  court,®^  otherwise  a  remand  will  be  made.®*  If  the  court  below  is  sustained, 
final  judgment  may  be  entered,  though  evidence  is  conflicting.®'  A  verdict  in  excess 
of  the  ad  damnum  clause  may  be  reduced  by  consent,®*  or  an  illegal  part  written  off 
and  the  writ  overruled.®'  General  judgment  on  the  bond  is  not  proper  practice  on  an 
affirmance.®^    Findings,  it  seems,  are  not  required.®® 

§  6.  Costs. — Costs  are  usually  made  discretionary,  unless  specifically  allowed 
'by  statute.^     A  successful  party  is  not  taxed  with  costs  merely  because  a  judgment 


85.  Return  of  an  assessment  proceeding — 
People  V.  Feitner,  38  Misc.  (N.  T.)  204.  As 
that  a  policeman  was  absent  without  leave 
whereupon  relator  police  board  dismissed 
him — People  v.  York,  73  App.  Div.  (N.  Y.)  445. 
Answer  that  road  was  completed  and  bene- 
fits were  ascertained  conclusive  though  rec- 
ord showed  only  assessment  of  the  sum — 
Janvrin  v.  Poole,  181  Mass.  463.  Question  of 
lunatic's  residence — Commonwealth  v.  Har- 
rold,  204  Pa.  154.  Necessity  of  a  road — Stowe 
Tp.  Road,  20  Pa.  Super.  Ct.  404. 

86.  Pacts  relative  to  an  assessment  were 
agreed  to — Jones  v.  Metropolitan  Park 
Com'rs,   181  Mass.  494. 

87.  West  Donegal  Tp.  Road,  21  Pa.  Super. 
Ct.  620;  Commonwealth  v.  Harrold,  204  Pa. 
154;  Sims  v.  Sims,  116  Ga.  679.  Only  Jurisdic- 
tional facts  on  face  of  record — State  v.  Baker, 
170  Mo.  383.  If  there  is  any  evidence  to  sup- 
port a  commitment  on  a  preliminary  hearing, 
the  Jurisdiction  is  upheld — People  v.  Warden, 
37  Misc.  (N.  Y.)  545,  109  N.  Y.  St.  Rep.  1114. 
Certiorari  in  aid  of  habeas  corpus  only 
brings  up  the  Jurisdiction  and  not  evidence 
on  a  commitment  for  contempt — State  v.  Dis- 
trict Ct..  26  Mont.  365,  68  Pac.  409,  471.  Con- 
dition of  cause  and  record  held  to  admit  of 
review  of  an  assessment  on  merits — People 
v.  Feitner,  81  App.  Div.   (N.   Y.)    118. 

88.  Thus  It  is  not  supposed  that  an  ordi- 
nance was  introduced  at  a  prior  meeting 
against  the  fact  that  the  only  ordinance 
shown  to  have  been  introduced  at  the  prior 
meeting  differed  in  terms — Delaware  &  A. 
Tel.  Co.  V.  Township  Committee,  67  N.  J.  Law, 
531. 

89.  Record  was  silent  as  to  whether  one 
was  misled  by  other's  nonresidence — Harris 
v.  Doyle  (Mich.)  90  N.  W.  293.  As  to  rela- 
tionship disqualifying  road  commissioners, 
the  record  being  silent — Stevens  v.  County 
Com'rs,  97  Me.  121. 

90.  Writ  was  quashed  as  become  void  by 
failure  to  return  and  not  because  of  laches — 
Guarantee  Safe  Deposit  Co.  v.  Nebeker  (N. 
J.   Law)    53   Atl.    558. 

91.  Allowing  new  trial  where  evidence 
was  conflicting  is  not  necessarily  error  if  the 
sufficiency  of  evidence  was  questioned — Car- 
ter V.  Garrett,  115  Ga.  595.  On  certiorari  to 
review  an  assessment  there  Is  substantially 
a  new  trial  admitting  of  additional  proof — 
People  V.  Wells,   116  N.  Y.  St.  Rep.  564. 

92.  Warren  v.  Hart,  183  Mass.  119. 


Proper  order  In  a  tax  certiorari  In  N.  Y. — 
People  V.  Feitner,  78  App.  Div.  (N.  Y.)  313. 
Where  return  shows  subsequent  satisfaction 
of  the  Judgment  It  should  not  be  set  aside — 
State  V.  Laurendeau,  27  Mont.  522,  71  Pac. 
754. 

93.  Error  was  one  of  law — Maxwell  v.  Col- 
lier, 115  Ga.  304.  For  this  purpose  a  finding 
of  facts  is  equivalent  to  a  special  verdict  on 
which  final  Judgment  will  pass — Sullivan  v. 
Vlsconti  (N.  J.  Law)  53  Atl.  598.  Pinal  Judg- 
ment may  be  given  In  discretion  of  court  in 
possessory  warrant  case — Sheriff  v.  Thomp- 
son, 116  Ga.  436. 

94.  So  where  a  different  result  on  the 
facts  should  have  been  reached — Pike  v.  Sut- 
ton. 115  Ga.  688.  As  where  fact  was  Involved 
— Williams  v.  Bradfield,  116  Ga.  705. 

95.  Ford  V.  Vinegar  Co.,  116  Ga.   793. 

96.  Seaboard  Air  Line  Ry.  v.  Christian, 
115   Ga.    742. 

97.  Ford  v.  Vinegar  Co.,  116  Ga.  793. 

98.  Suit  to  foreclose  a  lien — Barnett  v. 
Tant,  115  Ga.  659.  In  entering  final  Judgment 
against  relator  after  correcting  the  error 
complained  of  he  cannot  be  charged  on  his 
bond  for  costs — Mclnnis  v.  Greaves,  80  Miss. 
632. 

99.  At  least  when  hearing  Is  on  petition 
and  return — Elder  v.  Justice's  Ct.,  136  Cal. 
364,  68  Pac.  1022. 

1.  So  in  Supreme  Court  of  New  Jersey 
when  hearing  a  common  law  certiorari  In  ex- 
ercise of  its  appellate  Jurisdiction.  P.  L.  1898, 
p.  556,  §  94  is  applicable  only  where  district 
court  had  no  Jurisdiction — C.  B.  Smith  &  Co. 
V.  Holshauer  (N.  J.  Law)  52  Atl.  308.  On 
reversal  w^hich  does  not  result  in  final  judg- 
ment costs  are  not  usually  awarded  by  the 
supreme  court — Id.  They  were  refused  a 
prosecutor  on  dismissal  of  a  writ  which  had 
become  futile  for  lack  of  a  real  question — 
Smith  V.  Jersey  City  (N.  J.  Law)  53  Atl.  811. 
On  setting  aside  a  liquor  license  granted 
without  a  hearing  of  substantial  objections 
remonstrant  w^ho  prosecuted  was  allowed 
costs — Bachman  v.  Inhabitants  of  Phillips- 
burg  (N.  J.  Law)  53  Atl.  620.  An  arbitrary 
act  done  in  ignorance  by  unskilled  men  and 
like  the  custom  was  held  not  so  gross  as  to 
warrant  costs — People  v.  Rushford,  81  App. 
Div.  (N.  Y.)  298.  In  Iowa  costs  are  con- 
trolled by  rules  applicable  to  error  or  appeal 
— Coffey    V.    Gamble    (Iowa)    94    N.    W.    936. 

Costs   on    motion   to    correct   an    error  will 


506 


CHAMPERTY  AND  MAINTENANCE. 


goes  against  liim.2    The  relator  should  have  costs  if  respondent  voluntarily  dismisses 
the  case  below  and  thereby  causes  dismissal  of  the  writ.^ 

§  7,  Review  of  certiorari. — Certiorari,  being  at  law,  is  reviewable  only  by 
technical  legal  procedure.*  On  appeal  from  certiorari,  questions  not  properly  raised 
are  ignored,^  and  the  decision  below  is  sustained,  unless  error  is  shown.^  The  facts 
are  not  reviewed.''  Parties  may  not  complain  that  extraneous  matter  was  considered 
at  their  instance.^  An  intermediate  court  which  adopts  the  highest  court's  judgment 
of  dismissal  and  sends  it  dowm,  reserving  a  question  of  right  to  reinstate  the  cause, 
confers  no  rights  but  merely  preserves  existing  ones.* 

CHAMPERTY  AND   MAINTENANCE. 

A  gambling  or  traflicking  in  litigation  is  champertous."  A  layman  cannot  con- 
tract to  procure  employment  for  an  attorney  and  collect  evidence  for  a  portion  of 
the  fees  earned.^^  A  lienor,  though  not  of  record  in  the  action,  may  agree  to  main- 
tain an  action  which  will  protect  his  lien.^^ 

The  rule  against  conveyances  of  land  held  adversely^^  does  not  apply  to  judicial 
sales,"  nor  to  grants  of  franchises  by  the  public  in  opposition  to  a  conflicting  claim 
of  a  franchise."  A  quitclaim  deed  by  a  mortgagor,  after  foreclosure  under  a  power 
of  sale,  passes  an  equity  of  redemption  and  not  a  mere  right  to  attack  the  sale,^®  and 
a  mortgagor's  voluntary  grantee  may  require  the  mortgagee  to  account.^^  In  New 
Jersey,  no  policy  forbids  the  transfer  of  a  right  of  entry.^®  Possession  under  an 
adverse  claim  must  exist^*  when  lands  are  conveyed.^"  The  adverse  possession  need 
not  have  ripened  into  a  title,^^  and  it  need  not  be  actual  over  the  entire  tract,  but  may 
be  in  part  constructive.^^    In  Connecticut,  the  possession  of  a  mortgagee  is  adverse.^^ 


be   charged   to   the   party  In   fault — Fitch  v. 
Auditors   (Mich.)   94  N.  W.  952. 

2.  The  original  judgment  was  modified  at 
his  complaint — Mclnnis  v.  Greaves,  80  Miss. 
632. 

3.  Regardless  whether  certiorari  was 
proper — State  v.  Third  Judicial  Dist.  Ct. 
(Nev.)    71    Pac.    664. 

4.  By  exception  and  not  appeal  when 
writ  is  denied  by  single  justice  of  supreme 
judicial  court.  Appeals  in  law  cases  lie  from 
superior  court  only — Inhabitants  of  Brock- 
ton  V.    Com'rs,    183   Mass.    42. 

5.  There  was  no'  traverse — Lanier  v.  Byrd, 
115  Ga.  200.  Error  in  overruling  petition 
cannot  be  considered  where  answer  did  not 
admit  or  otherwise  show  any  judgment  In 
case  reviewed — Stoner  v.  Magins,  116  Ga.  797. 
Not  assigned  below — Suburban  Land  Imp. 
Co.  v.  Borough  of  Vailsburgh  (N.  J.  Law)  53 
Atl.    388. 

6.  General  grounds  urged  were  sufficient 
— D.  M.  Ferry  &  Co.  v.  Mattox  (Ga.)  44  S.  E. 
1005. 

7.  Suburban  Land  Imp.  Co.  v.  Borough  of 
Vailsburgh  (N.  J.  Law)  53  Atl.  388. 

8.  As  by  agreeing  to  a  given  fact  not 
shown  by  the  record — Barnett  v.  Tant,  115 
Ga.  659. 

9.  Lovelady   v.   Nursery   Co..    115   Ga.    714. 

10.  Casserleigh  v.  Wood  (C.  C.  A.)  119  Fed. 
308.  But  the  state  court  held  that  the  same 
contract  was  not  offensive  to  public  policy — 
Wood  V.  Casserleigh,  30  Colo.  287.  71  Pac.  360. 

11.  It  is  said  to  be  against  public  policy — 
Lan&don  v.  Conlin  (Neb.)  93  N.  W.  389,  60 
L.    R.   A.    429. 


12.  Hall  V.   Deaton,   24   Ky.   L.   R.   314,    68 

S.    W.    672. 

13.  Lyttle  V.  Fitzpatrick,  24  Ky.  L.  R.  93, 
67  S.  W.  988;  Eisemann  v.  Lapp.  38  Misc. 
(N.  Y.)  14.  Cf.  Gray  v.  Williams,  130  N.  C. 
53. 

14.  Griffin  v.  Dauphin,   133  Ala.  543. 

1.3.  People's  Elec.  Light  Co.  v.  Capital  Gas 
&   Elec.    Co.    (Ky.)    75    S.   W.    280. 

16.  Land  was  fraudulently  bought  in — 
Houston  v.  National  Mut.  B.  &  L.  Ass'n,  80 
Miss.    31. 

17.  Gribbel  v.  Brown,  202  Pa.  10.  Evi- 
dence held  insufficient  to  show  that  a  suit 
was  champertous  because  of  another  inde- 
pendent contract  to  sue  for  a  certain  ad- 
vantage In  respect  to  same  property — Id. 

18.  Semble  that  it  is  a  transferable  expec- 
tancy— Bouvier  v.  Baltimore  &  N.  Y.  Ry.  Co., 
67  N.  J.  Law,   281. 

19.  One  claiming  under  a  remainderman 
cannot  hold  adversely  to  the  life  tenant — Da- 
vis V.  TVillson,   25   Ky.  L.   R.   21.   74  S.  W.  696. 

20.  Claimant's  tenant  attorned  to  grantor 
before  sale  was  actually  made — Griffin  v. 
Dauphin,    133    Ala.    543. 

Deed  is  valid  if  grantor  has  a  final  and 
conclusive  judgment  against  the  tenant 
though  writ  of  possession  has  not  been 
served — Miller  v.  Farmers'  Bank  (Ky.)  75 
S.    W.    218. 

21.  So  by  statute  In  Tennessee — Green  v. 
Cumberland  Coal  Co.    (Tenn.)    72  S.  W.   459. 

22.  Green  v.  Cumberland  Coal  Co.  (Tenn.) 
72  S.  W.  459.  The  land  so  held  must  be  with- 
in the  boundaries  recited — Slatton  v.  Tennes- 
see C,  I.  &  R.  Co.    (Tenn.)    75  S.  W.   926. 

23.  Mead  v.  Fitzpatrick.  74  Conn.  521. 


CHARITABLE,  ETC.,   INSTITUTIONS. 


507 


A  conveyance  by  a  disseised  tenant  in  common  is  void  as  against  the  other.^*  A  dis- 
pute as  to  a  boundary  is  not  an  adverse  claim  to  the  intervening  strip.^'' 

If  a  deed  is  void  as  to  the  adverse  possessor  only,  and  under  the  law  the  grantee 
may  sue  in  the  grantor's  name,  a  later  statute  giving  him  the  same  remedies  as  if 
the  grantor  had  been  in  possession  is  purely  remedial,  and  the  grantee  may  sue  in  his 
own  name.^® 

The  common-law  rule  that  attorneys  could  not  contract  for  a  fee  dependent  on 
the  event  of  recovery  or  payable  thereout  is  now  largely  regulated  by  statute.^''  An 
attorney  must  not  acquire  an  interest  in  or  control  or  direction  of  the  action,^®  so  as 
to  take  away  that  of  the  assignor,^*  Whenever  a  contingent  fee  is  legal,  he  may  agree 
to  pay  associates  out  of  it.'*"  An  agreement  by  an  attorney  to  prosecute  at  his  own 
expense  for  a  compensation  is  bad,  as  agreeing  to  advance  money,  and  as  promising 
a  valuable  consideration  for  the  purpose  of  receiving  a  demand  for  suit." 

Under  statutes  prohibiting  "attorneys,"  a  layman  may  agree  with  an  attorney 
to  divide  the  recovery  and  the  agreement  is  enforceable  against  the  attorney.^^  Offi- 
cers cannot  make  their  fees  payable  out  of  a  recovery.^^ 

Champerty  is  a  defense  only  to  the  contract  infected  by  it.'*  Despite  the  in- 
validity of  a  champertous  agreement  for  a  contingent  fee,  a  quantum  meruit  may  be 
jecovered,*^  and  proper  amendments  for  that  purpose  should  be  allowed.^* 

Champerty  must  be  pleaded  as  a  defense,'^  but  champertous  conveyances  may 
be  regarded  as  void,  even  by  the  grantor,  and  without  pleading  invalidity.'* 

CHARITABLE    AND    CORRECTIONAL    INSTITUTI0NS.8* 


Institutions  Included;  Soldiers'Homes;  Com- 
mitment of  Minors;  Officers  and  their  Pow- 
ers; Labor  of  Inmates;  Custody  and  Control 
of      Inmates;      Maintenance      and      Support; 


Transfers;  Remission  of  Sentences;  Disci- 
pline; Liability  for  Injuries  to  Inmates;  E3s- 
capes. 


Institutions  included  in  term. — An  incorporated  industrial  school  and  orphan 
asylum  to  which  boys  are  committed  from  different  counties  by  overseers  of  the 


24.  Berry  v.  Tennessee  &  C.  R.  Co.,  134 
Ala.    618. 

25.  Small  V.  Hamlet,  24  Ky.  L.  R.  238,  68 
S.  W.  395;  Perciful  v.  Coleman,  24  Ky.  L.  R. 
1685,  72  S.  W.  29.  Overhanging  encroach- 
ments do  not  avoid  a  deed — Norwalk  H.  &  L. 
Co.  V,  Vernam   (Conn.)   55  Atl.  168. 

26.  Campbell  v.  Equitable  L.  &  T.  Co.  (S. 
D.)  94  N.  W.  401.  Compare  Galbralth  v. 
Paine  (N.  D.)  96  N.  W.  258. 

27.  In  Michigan  he  may  receive  a  share — 
Fletcher  v.  McArthur  (C.  C.  A.)  117  Fed.  393. 
So  in  Illinois  (collection  of  policy  on  life)  — 
Robinson  v.  Sharp,  201  111.  86.  But  it  must 
not  be  overreaching  or  fraudulent — Id.  Com- 
p.nre  title  Attorneys  and  Counselors,  ante,  p. 
270  et  seq. 

28.  An  assignment  to  him  to  collect  and 
pay  over  surplus  after  taking  out  expenses, 
fees  and  advances  is  void — Ravenal  v.  In- 
gram, 131  N.  C.  549.  No  settlement  was  to 
be  made  unless  he  was  present  and  directed 
it — Davis  v.  Chase,  159  Ind.  242.  An  agree- 
ment to  represent  several  clients  bringing 
one  test  case  on  a  contingent  fee  for  each, 
held  valid — Tron  v.  Lewis  (Ind.  App.)  66 
N.  E.  490.  Agreement  that  a  tax-ferret 
should  pay  all  expenses  and  attorney  fees  for 
half  of  recovery  held  not  champertous — 
Shlnn  V.  Cunningham   (Iowa)   94  N.  "W.  941. 

29.  Brown  V.  Ginn,  66  Ohio  St.  316. 

30.  In   re   Fitzsimons,    174    N.    Y.    15. 

81.     Statutes  construed — Stedwell  v.   Hart- 


mann,  74  App.  Div.  (N.  T.)  126.  Promise  to 
defray  all  expenses  is  one  to  give  "a  valua- 
ble thing"  for  employment;  but  to  take  an 
interest  in  the  action  to  secure  fees  is  not 
void — Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Carlock 
(Tex.   Civ.   App.)    75   S.   W.    931. 

32.  Code  Civ.  Proc.  §  74  construed — Ir- 
win  V.    Curie,    171   N.    Y.    409. 

33.  Edgerly  v.  Hale,  71  N,  H.  138;  Wat- 
son  V.    Fales,   97  Me.    366. 

34.  Not  in  the  original  action  (Hall  v. 
Deaton,  24  Ky.  L.  R.  314,  68  S.  W.  672);  nor  In 
a  suit  to  cancel  a  release  of  judgment  en- 
tered in  a  suit  where  the  attorney  was  act- 
ing champertously — Hearn  v.  Hearn,  24  R.  I. 
328.  Defendant  cannot  plead  champerty  be- 
tween plaintiff  and  plaintiff's  attorney — 
Isherwood  v.  H.  L.  Jenkins  Lumber  Co.,  87 
Minn.    388. 

35.  The  condition  for  no  pay  In  case  of 
failure  is  void  with  that  for  a  percentage- 
Leonard  V.  Boyd,  24  Ky.  L.  R.  1320,  71  S.  W. 
508. 

36.  Leonard  v.  Boyd.  24  Ky.  L.  R.  1320,  71 
S.   W.    508. 

37.  Held  In  action  to  enjoin  employment 
of  attorney  by  county  to  discover  and  col- 
lect unpaid  taxes — Disbrow  v.  Cass  County 
Sup'rs    (Iowa)    93    N.    W.    5S5. 

38.  Green  v.  Cumberland  Coal  Co.  (Tenn.  > 
72    S.    W.    459. 

39.  See  Public  Works  and  Improvements, 
for  exemption   oi  hospital  property  from  as- 


508 


CHARITABLE,  ETC.,   INSTITUTIONS. 


poor,  and  having  only  a  slight  income  from  the  sale  of  farm  products,  ia  a  charitable 
institution.**'  The  Illinois  state  reformatory  is  not  a  charitable,  but  a  penal  institu- 
tion." 

Soldiers'  homes. — National  soldiers'  homes  are  regarded  as  part  of  the  govern- 
ment of  the  United  States,  and  may  not  be  sued  in  tort,  and  the  fact  that  the  act 
gives  power  to  sue  and  be  sued  at  law  and  in  equity  does  not  change  this  rule,  as  that 
has  reference  solely  to  matters  within  the  scope  of  the  corporate  powers  of  the  insti- 
tution.*^ 

Commitment  of  minors  to  reformatories. — A  child  under  sixteen  years,  con- 
victed of  petit  larceny,  must,  under  the  New  York  Penal  Code,  be  committed  to  some 
reformatory  authorized  by  law  to  receive  minors.*' 

Officers,  their  powers,  duties  and  liabilities. — Courts  of  equity  may  not  remove 
oflBcers  of  penal  institutions.**  Generally  the  sheriff  is  entitled  to  the  charge  and 
custody  of  the  county  jail."  The  warden  of  a  penitentiary,  under  a  law  making 
him  the  custodian  of  funds  belonging  to  the  penitentiary,  is  not  a  mere  bailee,  but 
is  an  insurer  of  such  funds  and  liable  for  their  loss.**  A  like  liability  attaches  to  the 
treasurer  of  a  state  asylum  for  insane  criminals.*^  Failure  of  the  governor  to 
approve  a  warden's  bond  will  not  affect  its  validity  as  against  the  warden  and  his 
bondsmen.*® 

Labor  of  inmates. — The  proper  officers  may,  in  the  exercise  of  their  discretion, 
let  out  the  convict  labor  by  contract,*^  and  the  contract  is  not  invalid  because  for  a 
period  beyond  the  term  of  the  officers  making  the  contract.^"  A  convict  labor  con» 
tract  is  invalid  unless  the  bond  required  by  law  has  been  duly  approved,^^  and  offi- 
cials charged  with  the  duty  of  passing  on  such  bonds  have  discretion  in  the  matter 
of  the  hiring.^^  A  convict  labor  bond,  conditioned  for  payment  of  money  to  become 
due  and  for  the  humane  treatment  of  convicts,  permits  recovery  for  inhumane  treat- 
ment only  to  the  amount  of  actual  damages  resulting  to  the  county.^^  The  laws  of 
Georgia  prohibit  the  working  of  convicts  in  private  chain  gangs  controlled  by  private 
individuals."*  Inmates  of  insane  asylums  physically  fit  for  labor  may  be  employed 
without  the  grounds  of  the  institution,  where  the  laws  do  not  require  confinement 
within  the  grounds  of  the  institution.""  An  act  providing  that  not  less  than  fifty 
convicts  shall  be  hired  to  any  person,  but  where  convicts  are  worked  in  the  county 
of  conviction,  less  than  fifty  may  be  worked  in  one  place,  is  not  violated  by  a  contract 
for  hire  of  all  convicts  of  a  certain  county  to  labor  in  another  county,  no  number 
beiag  specified."®  A  convict  employed  under  a  convict  bond  may  be  returned  to  cus- 
tody by  agreement  between  the  hirer  and  the  judge.'^ 


sessments  for  municipal  improvements.  See 
Taxation,  for  liabiUty  of  charitable  institu- 
tion to  taxation. 

40.  Corbett  v.  St.  Vincent's  Industrial 
School,  79  App.  Div.    (N.  T.)    334. 

41.  Marshall  v.  Board  of  Managers,  201 
111.   9. 

42.  Overholser  v.  National  Home,  68  Ohio 
St.    236. 

43.  People  V.  New  Tork  Catholic  Protec- 
tory,  38   Misc.    (N.   Y.)    660. 

44.  Marshall  v.  Board  of  Managers,  201 
111.   9. 

45.  Sturr  v.  Buckley  (N.  J.  Law)  52  Atl. 
692.  The  fact  that  the  state  constitution  in- 
vests a  sheriff  with  the  common  law  duties 
of  such  officer  will  not  invalidate  a  statute 
taking  from  the  sheriff  the  control  of  a  jail, 
as  the  legislature  has  the  power  to  change 
his  rights  and  duties — Beasley  v.  Ridout,  94 
Md.    641. 


46,  47,  48.  Ramsay's  Estate  v.  People,  197 
111.  572. 

49.  Comp.  St.  1901,  c.  86,  §  16 — State  v. 
Mortensen  (Neb.)  95  N.  W.  831;  McC<innell 
V.  Arkansas  Brick  &  Mfg.  Co.,  70  Ark.  568. 

50.  McConnell  v.  Arkansas  Brick  &  Mfg. 
Co.,    70    Ark.    568. 

51.  Rev.  St.  §  3062 — Camp  v.  McLln  (Fla.) 
32  So.  927.  Comp.  St.  1901,  c.  86,  §  16 — State 
V.  Mortensen   (Neb.)   95  N.  "W.   831. 

52.  Rev.  St.  §  3062 — Camp  v.  McLln  (Fla.) 
32    So.    927. 

53.  Rev.  St.  1895,  art.  3746 — Ellis  v.  Ft. 
Bend  County  (Tex.  Civ.  App.)   74  S.  "W.  43. 

54.  Simmons  v.  Georgia  Iron  Co.  (Ga.)  43 
S.   E.   780. 

55.  Clough  V.  Worsham  (Tex.  Civ.  App.) 
74  S.  W.   350. 

56.  Rev.  Code,  §  4476,  and  in  a  suit  on  a 
bond  for  convicts  worked  in  another  coun- 
ty, a  plea  of  invalidity  because  at  the  time 


CHARITABLE,  ETC.,   INSTITUTIONS. 


509 


CiLstody  and  control  of  inmates. — Under  laws  releasing  parents  from  all  duties 
to  children  committed  to  state  institutions,  the  authority  of  the  officers  thereof  dur- 
ing minority  is  superior  to  the  rights  of  a  guardian,  unless  voluntarily  relinquish- 
^d,^^  and  the  discretion  of  the  officers  as  to  release  will  not  be  interfered  with  by 
courts.^® 

Maintenance  of  institutions  and  support  of  inmates. — An  orphans'  home  giving 
moral  training  and  religious  and  secular  education  is  an  asylum  and  not  a  school 
\vithin  the  constitution  of  New  York,  prohibiting  the  distribution  of  public  moneys 
to  sectarian  schools.®"  The  city  of  New  York  is  not  liable  to  an  asylum  for  the  sup- 
port of  an  incorrigible  child,  unless  duly  committed  pursuant  to  the  rules  of  the 
state  board  of  charities.®^  In  counties  maintaining  a  poorhouse,  townships  are  not 
chargeable  with  support  of  the  poor.®^  A  legislature  may  not  fix  one  rate  for  pay 
patients  admitted  into  a  state  insane  asylum  and  a  greater  rate  for  patients  admitted 
as  paupers,  who  afterwards  become  able  to  pay.*'  The  legal  settlement  of  an  insane 
person  is  the  one  primarily  liable  for  his  support  if  a  pauper.'*  The  persons  or  dis- 
tricts chargeable  with  the  maintenance  of  insane  persons,  need  not  be  notified  of  the 
proceedings  under  which  the  insane  person  was  sent  to  the  asylum.*^  After  a  lapse 
of  six  years,  a  coimty  may  not  recover  back  amounts  erroneously  paid  by  it  to  the 
.state  for  the  support  of  insane  sent  from  that  county."  The  expenses  of  the  criminal 
insane  are  to  be  borne  in  the  first  instance-  by  the  county  from  which  the  insane  per- 
son was  sent.*'^  The  sheriff  may  appoint  guards  for  prisoners  at  the  county's  expense 
when  necessary.®* 

Transfer  to  other  institutions. — A  transfer  of  an  inmate  to  another  institution 
under  an  unconstitutional  statute  will  not  operate  as  a  discharge.**    An  act  giving 


of  its  execution  defendant  did  not  have  fifty 
convicts  as  required  by  law  was  Insufflclent 
— Griffin  v.  Randolph  County,  136  Ala.  310. 

57.  Ex  parte  Miller  (Tex.  Cr.  App.)  72 
S.  W.  183. 

58,  5».  Armstrong'  v.  Board  of  Control 
(Minn.)    93   N.  W.   3. 

60.  Sargent  v.  Board  of  Education,  76  App. 
Div.  (N.  Y.)  588.  Laws  of  New  York,  allow- 
ing distribution  of  the  school  moneys  to 
children  educated  In  orphan  asylums  were 
not  repealed  by  the  constitution  prohibiting 
distribution  of  public  moneys  to  sectarian 
schools — Id. 

61.  Laws  of  1896,  c.  546,  §  9,  subd.  8,  re- 
quires board  of  Charities  to  establish  rules 
— In  re  New  York  Juvenile  Asylum,  172  N. 
Y.    50. 

62.  Town  of  Clearwater  v.  Town  of  Gar- 
field (Neb.)  91  N.  W.  496.  On  refusal  to  re- 
ceive a  pauper  because  afflicted  with  a  con- 
tagious disease,  the  county  is  liable  for 
money  thereafter  expended  by  the  township 
for  such  pauper's  support  and  maintenance — 
Rockaway  Tp.  v.  Board  of  Freeholders  (N.  J. 
Law)   52  Atl.  373. 

63.  Schroer  v.  Central  Ky.  Asylum,  24  Ky. 
L.  R.  150,  68  S.  W.  150.  Under  an  act  chan- 
ging the  name  of  an  asylum  to  a  hospital, 
transferring  the  properties  and  giving  the 
treasurer  of  the  new  Institution  power  to 
sue,  he  may  recover  for  the  care  of  an  in- 
mate sent  to  the  asylum  before  the  change — 
Napa  State  Hospital  v.  Yuba  County,  138 
Cal.   378,  71  Pac.   450. 

64.  Clay  County  v.  Adams  County  (Neb.) 
95  N.  W.  5S.  "Where  a  sane  person,  a  man, 
has  his  residence  in   one  county  and  moved 


to  another  with  Intent  to  make  It  his  home, 
the  county  from  which  he  removed  will  not 
be  liable  for  his  support  as  an  insane  per- 
son, where  he  did  not  become  insane  within 
thirty  days  after  abandoning  his  former  resi- 
dence— Clay  County  v.  Adams  County  (Neb.) 
95   N.  "W.   58. 

65.  Juniata  County  v.  Overseers  of  Poor, 
22  Pa.  Super.  Ct.  187.  The  finding  of  a  jury 
that  a  lunatic  is  a  pauper  will  not  prevent 
a  subsequent  Inquiry  by  the  state  authorities 
as  to  his  ability  to  pay — Central  Ky.  Asylum 
V.  Drane,  24  Ky.  L.  R.  176,  68  S.  W.  149; 
Schr*««r  v.  Central  Ky.  Asylum,  24  Ky.  L.  R. 
150.   68   S.   W.   150. 

66.  Trustees  of  State  Hospital  v.  Philadel- 
phia County,  205  Pa.  336. 

67.  Napa  State  Hospital  v.  Yuba  County, 
138  Cal,  378,  71  Pac.  450.  Rev.  St.  1899,  §§ 
4867,  4874-4878,  4883,  4887 — Thomas  v.  Macon 
County  (Mo.)  74  S.  W.  999.  It  is  not  con- 
clusive on  the  question  of  the  convict's  resi- 
dence that  the  indictment  used  the  words 
"late  of  the  county  aforesaid";  nor  is  convic- 
tion of  a  person  by  court  of  a  county,  prima 
facie  proof  that  the  person  so  convicted  was 
a  resident — Thomas  v.  Macon  County  (Mo.) 
74   S.   W.    999. 

68.  Dakota  County  v.  Eastcott  (Neb.)  93 
N.   W,    679. 

69.  People  v.  Mallary,  195  111.  582.  The 
doctrine  of  voluntary  escape  would  have  no 
application  to  such  situation  because  that 
doctrine  is  without  application  to  criminal 
cases — Id.  Constitutionality  of  act  allowing 
transfer  of  incorrigible  prisoners  may  be 
tested  by   habeas  corpus — Id. 


510 


CHARITABLE  GIFTS. 


§   1 


a  board  power  to  transfer  inmates  to  another  institution,  on  a  showing  of  certain 
facts,  invests  the  board  with  judicial  powers  and  is  unconstitutional.'''* 

Remission  of  sentence. — Courts  generally  are  without  power  to  remit  a  portion 
of  a  sentence  where  there  is  no  proceeding  in  error ;  that  power  being  vested  in  other 
officers.''^ 

Discipline. — Guards  have  no  right  to  whip  convicts  in  the  absence  of  rules  con- 
ferring that  power,^^  and  where  a  convict  is  whipped  by  a  guard,  he  may  sue  for 
assault  and  battery.''^ 

Liability  of  institutions  or  officers  for  injuries  to  inmates. — A  charitable  insti- 
tution exercising  due  care  in  the  selection  of  employes  is  not  liable  for  injuries  to  an 
inmate,  through  the  negligence  of  an  employe."*  An  institution  conducted  for  profit 
IS  liable  for  negligence  of  its  physician  treating  a  pay  patient.''^  The  surgeon  in 
chief  of  a  hospital,  and  paid  by  the  month  for  his  services,  is  the  servant  of  the 
hospital  and  not  an  employe  of  the  patient.''^  A  patient  in  a  private  sanitarium  may 
recover  for  unnecessary  assault  inflicted  when  he  was  delirious.''^  Money  paid  for  an 
injury  to  one  in  the  erection  of  a  building  required  by  a  bequest  will  be  regarded  as 
an  incident  to  the  management,  and  may  be  charged  as  an  item  of  cost  of  such  man- 
agement.'^®  A  convict  may  recover  for  injuries  inflicted  while  employed  under  con- 
vict contract,'^®  his  right  not  affected  by  disobedience  of  orders  of  state  officers.®"  A 
superintendent  of  an  insane  asylum  is  not  personally  liable  for  negligence  of  a 
patient  employed  in  work  outside  the  grounds,  where  the  fitness  of  inmate  to  labor 
was  passed  upon  by  the  physicians.^^ 

Liahility  for  escape. — A  jailer  negligently  allowing  escape  is  liable,  though 
effected  without  intent  on  his  part.*^ 

"-  •    "    ^  CHARITABLE  GIFTS.  88 


§  1.     Validity  In  General. 

S  a.     Capacity  of  Donee  or  Trustee. 


§  3. 
§  4. 


Interpretation  and  Constmctlon. 
Administration   and   Enforcement. 


§  1.  Validity  in  general. — The  motive  of  a  charitable  gift  cannot  be  considered 
in  determining  its  validity.**  Statutory  provisions  restrictive  of  the  right  to  devise 
or  bequeath  to  a  charity  may,  it  is  held,  be  waived  by  agreement  of  testator  and  the 
persons  protected  by  such  laws.***  To  be  valid  it  must  be  for  a  public  use,*^  as  for 
the  establishment  of  a  church  and  mission  of  a  particular  denomination,*'  or  for 
the  support  and  maintenance  of  a  pastor  thereof,**  or  for  foreign  and  home  missions 


70.  People  v.  MaUary,  195  lU.  582. 

71.  State  V.   Dalton    (Tenn.)    72   S.  W.    456. 

72.  Davis  V.   State    (Miss.)    33   So.   286. 

73.  Acts  1896,  p.  99;  Code  1892,  §  2747 — 
Davis  V.   State    (Miss.)    32  So.  922. 

74.  Corbett  v.  St.  Vincent's  Industrial 
School,  79  App.  Div.  (N.  Y.)  334;  Pepke  v. 
Grace    Hospital    (Mich.)    90    N.    W.    278. 

75.  Brown  v.  La  Societe  Francaise  de 
Bienfaisance  Mutuelle,  138  Cal.  475,  71  Pac. 
516.  Want  of  care  in  selecting-  physicians 
who  proved  to  be  unskillful  should  be  alleged 
— Plant  System  Relief  Dept.  v.  Dickerson 
(Ga.)    45    S.    E.    483. 

76.  Brown  v.  La  Societe  Francaise  de 
Bienfaisance  Mutuelle,  138  Cal.  475,  71  Pac. 
516. 

77.  And  a  hundred  dollars  is  not  an  ex- 
cessive amount — Galesburg  Sanitarium  v.  Ja- 
cobson.    103    111.    App.    26. 

78.  Though  will  prohibited  a  diversion  of 
the  fund — "Winnemore  v.  Philadelphia,  18  Pa. 
Super.   Ct.   625. 


79,   80.     San   Antonio    &   A.    P.    Ry.    Co.    v. 

Gonzales    (Tex.    Civ.    App.)    72    S.    W.    213. 

81.  Clough  V.  Worsham  (Tex.  Civ.  App.) 
74    S.    W.    350, 

82.  Lynch  v.  Commonwealth,  24  Kv.  L.  R. 
2180,    73    S.    W.    745. 

S3.  See  Charitable  and  Correctional  Insti- 
tutions for  liability  of  such  institutions  or 
the    trustees    thereof   for    torts. 

84.  As  that  the  intention  of  testatrix  was 
to  perpetuate  the  family  name — Appeal  of 
Bllot,   74   Conn.   586. 

85.  In  re  Beers'  Will,  117  N.  T.  St.  Rep.  67. 

86.  Grant  v.  Saunders  (Iowa)  95  N.  W. 
411.  A  use  for  a  cemetery  is  not  charitable 
merely  because  held  by  trustees — Congreg-a- 
tlon  Shaaral  v.  Moss,  22  Pa.  Super.  Ct.  356. 

87.  Is  for  a  charitable  object  within  Conn. 
Gen.  St.  §  2951 — Appeal  of  Eliot,  74  Conn. 
586. 

88.  Farmers'  &  Merchants'  Bank  v.  Robin- 
son,   96    Mo.    App.    385. 


§  1 


VALIDITY  IN  GENERAL. 


511 


connected  therewith/'  or  for  a  home  for  old  and  infirm  persons  who  may  become 
connected  therewith/"  or  a  gift  for  the  benefit  of  a  public  library/^  or  a  humane 
society/^  or  incorporated  mutual  benefit  associations/^  or  an  incorporation  for  the 
purpose  of  maintaining  an  industrial  school  and  asylum  for  the  sustenance  and  edu- 
cation of  male  orphan  children,  supported  by  contributions  and  from  sale  of  prod- 
ucts/* or  a  gift  to  a  city  for  a  college  for  the  education  of  orphan  boys/^  or  for 
masses  for  the  repose  of  the  soul  of  testator/*  but  a  gift  for  the  benefit  of  the  de- 
ceased members  of  a  fraternal  society  is  not  for  a  public  charity/'^  nor  is  a  bequest  of 
a  permanent  fund  to  maintain  testator's  place  of  interment.'^ 

It  is  essential  that  there  be  a  beneficiary  named  or  capable  of  being  ascer- 
tained/'* or  created  as  an  institution  by  organization  or  incorporation.^  A  grant  to  an 
aggregation  of  people  within  certain  municipal  limits  is  not  a  sufficient  designation 
of  grantees.^ 

Uncertainty  as  to  the  trustee  will  not  necessarily  defeat  the  trust.'  A  bequest 
to  a  "nephew"  is  not  invalid  as  creating  a  personal  trust.*  That  the  trustee  appoint- 
ed was  permitted  to  select  his  co-trustees  will  not  invalidate  the  trust.' 

In  some  states  a  limitation  on  the  amount  which  can  be  devised  to  charitable 
uses  has  been  fixed  by  statute.®     If  the  heirs  knowingly  permitted  the  trustees  to  en- 


89.  Bruere  v.  Cook,  63  N.  J.  Eq.  624. 

90.  Gen.  St.  Conn.  §  2951 — Appeal  of  Eliot, 
74   Conn.   5S6. 

91.  As  the  Boston  Library  and  the  Boston 
Atheneum- — Minns  v.  Billings,   183  Mass.   126. 

92.  Minns  v.  Billings,  183  Mass.  126. 

93.  As  typographical  society,  teachers  as- 
sociation and  bank  officers  association,  which 
are  open  to  all  qualified  to  join,  though  the 
gift  is  for  the  benefit  of  members  only — 
Minns  v.   Billings,   183  Mass.  126. 

94.  Corbett  v.  St.  Vincent's  Industrial 
School,   79   App.  Div.    (N.  Y.)    334. 

95.  St.  43  Eliz.  c.  4,  held  in  force  and  act 
1901  authorizing  the  city  to  accept  and  en- 
force the  bequest  was  an  expression  of  the 
policy  of  the  state — Clayton  v.  Hallett,  30 
Colo.  231,  70  Pac.  429,  59  L.  R.  A.  407. 

96.  But  there  is  a  conflict  in  the  decisions 
whether  this  is  a  charitable  use;  see  5  Am. 
&  Eng.  Enc.  Lavr  (2d  Ed.)  pp.  927-929 — Cole- 
man V.  O'Leary's  Ex'r,  24  Ky.  L.  R.  1248,  70 
S.   W.   1068. 

97.  Troutman  v.  De  Boissiere's  School 
Ass'n    (Kan.)    71   Pac.    286. 

98.  In  re  Gay's  Estate,  138  Cal.  552,  70  Pac. 
707. 

99.  Beneficiaries  need  not  be  limited  as  to 
any  particular  place — Grant  v.  Saunders 
(Iowa)  95  N.  W.  411.  Gift  held  Invalid  be- 
cause no  existing  Protestant  Episcopal  dio- 
cese corresponded  to  that  named — Mount  v. 
Tuttle,  40  Misc.  (N.  Y.)  456.  A  bequest  for  a 
college  for  poor  white  male  orphans  "born 
of  reputable  parents"  sustained  though  it 
did  not  define  the  word  "reputable" — Clayton 
V.  Hallett,  30  Colo.  231,  70  Pac.  429,  59  L.  R. 
A.  407.  A  bequest  for  "the  purpose  of  reli- 
gion or  education,"  or  "to  be  applied  to  any 
charitable"  use  is  uncertain  and  unascertain- 
able — Coleman  v.  O'Leary's  Ex'r,  24  Ky.  L.  R. 
1248,  70  S.  W.  1068.  A  bequest  In  aid  of 
"deserving,  aged  native  born,  needing  such 
aid"  Is  sufficiently  certain — Pay  v.  Howe,  136 
Cal.  599,  69  Pac.  423.  A  bequest  that  the  In- 
come of  a  certain  sum  be  applied  as  "re- 
wards of  merit  to  pupils  in  the  parochial  poor 
schools  In"  a  certain  city  Is  sufficiently  def- 
inite   as    to    purpose— Coleman    v.    O'Leary's 


Ex'r.  24  Ky.  L.  R.  1248,  70  S.  W.  1068.  A 
bequest  for  the  purchase  of  nonsectarian 
books  on  the  philosophy  of  spiritualism  to 
be  placed  where  all  could  read,  is  certain — 
Jones  V.  Watford  (N.  J.  Law)  53  Atl.  397.  A 
bequest  for  a  home  for  "poor  men"  is  suffi- 
ciently certain  and  under  1  Rev.  St.  p  235  It 
is  not  necessary  that  the  poor,  be  "aged  or 
impotent."  The  trustees  will  have  power  to 
act  under  the  chancellor's  direction — Cole- 
man v.  O'Leary's  Ex'r,  24  Ky.  L.  R.  1248,  70 
S.  W.  1068.  "To  the  poor"  to  be  selected  by 
the  trustee  Is  definite — Grant  v.  Saunders 
(Iowa)  95  N.  W.  411;  Thompson's  Ex'r  v. 
Brown,  25  Ky.  L.  R.  371,  75  S.  W.  210.  A 
bequest  for  maintaining  and  aiding  a  kin- 
dergarten in  a  certain  city  is  sufficiently  cer- 
tain— Owatonna  v.  Rosebrock  (Minn.)  92  N 
W.   1122. 

1.  A  bequest  for  the  establishment  of  an 
institution  not  in  existence  at  the  time  of 
the  donor's  death  is  valid — Appeal  of  Eliot, 
74  Conn.   586. 

2.  Hunt  V.  Tolles  (Vt.)   52  Atl.   1042. 

3.  Bequest  to  the  board  of  missions  of  the 
Baptist  church  of  New  Jersey  for  foreign 
and  home  missions,  there  being  no  such 
board,  held  a  valid  gift  to  the  home  and  for- 
eign missions  of  that  church — Bruere  v. 
Cook,   63   N.  J.  Eq.    624. 

4.  Pay  v.  Howe,  136  Cal.  599,  69  Pac.   423. 

5.  Coleman  v.  O'Leary's  Ex'r,  24  Ky.  L. 
R.    1248,    70   S.   "W.    1068. 

6.  Cal.  Civ.  Code,  §  1313.  Property  de- 
scribed as  community  property  by  the  surviv- 
ing widow  as  executrix  will  be  so  treated  in 
estimating  the  amount  of  the  estate.  In  de- 
termining the  one  third  of  the  widow's  es- 
tate devised,  where  she  died  leaving  surviv- 
ing no  next  of  kin,  but  two  nieces  of  her 
deceased  husband,  property  conveyed  to  her 
by  her  husband  and  another  will  not  be  con- 
sidered— In  re  McCauley's  Estate,  138  Cal. 
432,  71  Pac.  512.  The  execution  of  a  codicil 
revoking  a  charitable  bequest  within  30  days 
of  testator's  death  Is  not  a  reexecution  of 
the  will  so  as  to  Invalidate  other  charitable 
devises — Morrow's  Estate,  204  Pa.  484;  In  re 
McCauley's  Estate.  138   Cal.  132.   71   Pac.   512. 


512 


CHARITABLE   GIFTS. 


§2 


ter  upon  the  performance  of  the  void  trust,  there  can  be  no  recovery  for  expenditures 
or  losses  by  investments  thereunder/ 

§  2.  Capacity  of  donee  or  trustee. — Corporations,  municipal  or  private,  may 
take  a  bequest  for  charitable  purposes.*  In  case  of  municipal  corporations,  the  power 
need  not  be  expressly  given  by  its  charter,^  and  if  its  charter  gave  it  power  to  assist 
charitable  organizations,  it  has  power  to  accept  a  bequest  in  trust  for  the  establish- 
ment of  a  college  for  the  education  of  orphan  boys.^"  Merely  because  the  donee  cor- 
poration already  held  property  up  to  the  charter  limitation  will  not  invalidate  the 
donation,"  and  if  the  disability  is  removed  before  the  time  for  payment  of  the 
legacy,  there  is  no  failure  of  a  trustee."  A  charter  of  a  corporation  for  charitable 
purposes,  limiting  the  amount  of  property  which  it  can  hold  free  from  taxation,  is  a 
limitation  of  its  capacity  to  acquire  property."  If  one  of  the  purposes  of  incorpora- 
tion was  to  aid  destitute  seamen,  it  may  accept  a  bequest  for  that  purpose." 

§  3.  Interpretation  and  construction. — The  cy  pres  doctrine  will  be  applied 
only  where  the  purposes  of  the  trust  are  ascertainable.^'*  A  bequest  to  executors  to 
expend  a  certain  sum  for  charitable  purposes  constitutes  them  trustees  of  the  fund.^^ 
A  bequest  in  trust  to  be  transferred  to  a  mimicipality,  where  it  shall  be  authorized 
to  administer  such  a  trust,  does  not  make  it  the  beneficiary  but  the  trustee.^^  A 
bequest  to  "my  nephew,"  naming  him,  does  not  create  a  personal  trust  which  termi- 
nated on  his  death.^* 

§  4.  Administration  and  enforcement. — Incapacity,^'  or  maladministration/" 
or  refusal  of  the  trustee  to  act,^^  or  a  failure  of  the  donor  to  appoint  a  trustee,22  or 
to  name  a  successor  to  the  appointee  in  case  of  his  death  will  not  defeat  the  trust,^^ 
nor  will  death  of  the  trustee  terminate  it,^*  but  in  such  case  equity  will  administer 


T.  Coleman  v.  O'Leary's  Ex'r,  24  Ky.  L. 
R.  1248,  70  S.  W.  1068. 

8.  Equity  has  adopted  43  Eliz.  c.  4,  to  this 
extent,  though  not  adopted  by  express  legis- 
lation—State V.  Toledo,  23  Ohio.  Circ.  R. 
327.  The  common  law  of  England  by  stat- 
ute supplies  defects  in  the  state  statutes, 
and  act  1901  authorizing  the  city  to  accept 
the  request  was  an  expression  of  the  policy 
of  the  state  in  favor  of  the  common  law — 
Clayton  v.  Hallett,  30  Colo.  231,  70  Pac.  429, 
59  L.  R.  A.  407.  Under  Conn.  Gen.  St.  § 
2075  the  Episcopal  church  has  power  to  ac- 
cept a  bequest  to  establish  a  home  for  old 
and  Infirm  ladies  connected  with  the  church 
—Appeal  of  Eliot,  74  Conn.  586.  An  act  au- 
thorizing a  municipality  to  accept  a  trust 
fund  for  educational  purposes  is  not  uncon- 
stitutional for  want  of  corporate  power  to 
accept  trusts  (Rev.  St.  §  4105,  am'd  94  Ohio 
Laws,  p.  241) — State  v.  Toledo,  23  Ohio  Circ. 
R     327. 

9.  State  v.  Toledo,  23  Ohio.  Circ.  R.  327. 

10.  Clayton  v.  Hallett,  30  Colo.  231,  70  Pac. 
429,    59   L.    R.   A.    407. 

11.  12,  13,  14.     Appeal  of  Eliot,  74  Conn.  586. 
15.     A  trust   for   "the   benefit   of  the   poor" 

generally  upheld — Thompson's  Ex'r  v.  Brown, 
25  Ky  L  R.  371,  75  S.  W.  210.  And  see  Grant 
v  Saunders  (Iowa)  95  N.  W.  411.  The  board 
of  home  missions,  the  board  of  the  church 
erection  fund,  and  the  board  of  aid  for  col- 
leges and  academies,  held  to  be  legatees,  un- 
der a  bequest  to  the  "boards  of  the  Pres- 
byterian church,  to  be  used  in  home  mis- 
sions church  erections  and  aid  for  colleges" 
—Harris  v.  Keasbey  (N.  J.  Ch.)  53  Atl.  555. 
A  bequest  to  an  institution  "in  the  city  of" 
need  not  be  confined  to  an  institution  within 


the  corporate  limits;  the  word  "In"  will  be 
regarded  as  equivalent  to  "at"  and  an  insti- 
tution within  a  mile  of  the  city  will  be  en- 
titled to  the  bequest — Old  Ladies  Home  v. 
Hoffman,  117  Iowa,  716.  A  bequest  to  the 
■'Bishop  of  the  Catholic  Diocese  of  Louis- 
ville for  poor  Catholic  men"  was  construed 
to  require  to  establishment  of  the  home  in 
and  the  beneficiaries  to  be  selected  from  the 
diocese  of  Louisville — Coleman  v.  O'Leary's 
Ex'r.  24  Ky.  L.  R.  1248,  70  S.  W.  1068.  Gift 
to  "Society  for  Disabled  Ministers"  held  to 
mean  "Disabled  Ministers'  Fund"  etc. — Re- 
formed Presbyterian  Church  v.  McMillan 
(Wash.)    72    Pac.    502. 

16.  Jones  v.  Watford  (N.  J.  Law)  53  Atl. 
397. 

17.  And  it  was  the  duty  of  the  trustees  to 
transfer  the  fund  to  the  cily  on  statutory 
qualification  to  act — Owatonna  v.  Rosebrock 
(Minn.)    92  N.  W.  1122. 

18.  Fay  v.  Howe,  136  Cal.  599,  69  Pac. 
423. 

19.  Clayton  v.  Hallett,  30  Colo.  231,  70  Pac. 
429,  59  L.  R.  A.  407;  Appeal  of  Eliot,  74  Conn. 
586. 

20.  Von  Hoven  v.  Immanuel  Presbyterian 
Church,    108    La.    274. 

21.  The  refusal  of  a  town  to  accept  a  be- 
quest for  cemetery  purposes  unless  certain 
cemetery  lots  owned  by  testator  were  con- 
veyed to  it  will  not  affect  a  reversion  of  the 
bequest  or  authorize  the  executors  to  con- 
vey the  lots — Campbell  v.  Clough,  71  N.  H. 
181. 

22.  Bruere  v.  Cook,  63  N.  J.  Eq.  624. 

23.  In  re  Gay's  Estate,  138  Cal.  552,  71 
Pac.    707. 

24.  Fay  v.  Howe,  136  Cal.  599,  69  Pac.  423. 


§  1 


CHATTEL  MORTGAGES. 


513 


it  by  the  appointment  of  a  trustee.^'  The  executor  may  apply  for  the  appoint- 
ment of  a  trustee  in  case  the  will  does  not  name  one,^^  and  the  members  of  the 
church  devisee  may  compel  the  board  of  trustees  thereof  to  administer  the  trust.'^ 
On  capacitation  of  a  corporation  trustee,  the  court  could  appoint  it  trustee.** 

The  provisions  of  the  trust  and  not  the  charter  of  incorporation  for  the  purpose 
of  carrying  out  the  trust  will  govern."^  The  church  has  implied  power  to  determine 
the  manner  in  which  the  bequest  should  be  invested,  where  the  will  gave  the  wardens 
the  power.""  The  trustee  has  implied  power  to  select  the  particular  persons  to  be 
benefited  of  a  definite  class  of  beneficiaries.^^ 

A  sale  of  part  of  the  trust  estate  by  the  trustees,  being  such  as  would  have  been 
authorized  on  application  to  the  court,  will  be  deemed  valid.'*  The  presumption  is 
that  the  trustee  faithfully  discharged  his  duty  as  he  understood  it.^' 

CHATTEL  MORTGAGES.  34 


§  7.     Title  and  Ownership.  '"       '" 

§  8.     Rlsht   of   Possession. 

§  9.     liiena  and  Priorities;  "Waiver. 

§  10.     Disposal  of  Property  by  BIortsaKor. 

§  11.     Assignment  of  Mortgage. 

§  12.     Payment  and  Discharge. 

§  13.     Redemption. 

§  14.     Foreclosure. 

§  15.     Remedies  Betrreen  the  Partlea. 

S  16.     Remedies  Against  Third  Persons. 


§  1.  What  Constitutes  a  Chattel  Mort- 
gage. 

§  3.  Subject  Matter. — What  may  be  Mort- 
gaged; Title  of  Mortgagor;  Description  of 
Property;  Property  Covered. 

§  3.      Consideration. 

§  4.     Fraudulent  Conveyances. 

§  5.  Form,  Execution  and  Delivery.— Ac- 
knowledgment;  Extension. 

§  6.  Filing  or  Recording  and  Notice  of 
Title. 

§  1.  What  constitutes  a  chattel  mortgage. — At  common  law  a  chattel  mort- 
gage is  a  sale  of  a  chattel  on  a  condition  subsequent,  upon  the  performance  of  which, 
the  title  revests  in  the  mortgagor,  and  on  breach  of  which,  the  mortgagee's  title 
becomes  absolute.^'' 

An  instrument  to  have  the  effect  of  a  chattel  mortgage  must  be  executed  with 
the  intention  or  purpose  of  operating  as  a  security.'"  It  is  not  absolutely  essential 
t]iat  it  contain  an  express  defeasance;  it  is  sufficient  if  it  expressly  evidences  a  sale 
to  secure  a  debt  and  implies  a  defeasance.''' 

Distinguished  from  other  transactions. — A  chattel  mortgage  is  distinguished 
from  a  conditional  sale  wherein  title  is  retained  by  the  seller,  until  the  performance 
of  some  condition,  in  that  no  title  passes  from  the  debtor  to  the  creditor,  but  the 
creditor  merely  retains  title  which  the  debtor  never  had.'*     There  is  a  sale  and 


2.5.     Hunt  V.  Tolles  (Vt.)  52  Atl.  1042. 

26.  Bruere  v.  Cook,   63  N.  J.  Eq.  624. 

27.  Von  Hoven  v.  Immanuel  Presbyterian 
Church,    103    La.    274. 

28.  Appeal  of  Eliot,  74  Conn.  586. 

29.  State  V.   Toledo,   23   Ohio  Giro.   R.   327. 

30.  31.     Appeal  of  Eliot,  74  Conn.  586. 

32.  As  where  by  deed  land  had  been  con- 
veyed to  a  town  for  cemetery  purposes  and 
the  trustees  sold  part  thereof,  the  proceeds 
being  expended  In  Improving  the  cemetery; 
particularly  where  the  grantees  were  in 
peaceable  possession  for  fourteen  years  with 
knowledge  of  the  donor,  the  town  and  the 
cemetery  trustees — Tacoma  v.  Tacoma  Ceme- 
tery, 28  Wash.  238.  68  Pac.  723. 

33.  Tacoma  v.  Tacoma  Cemetery,  28  Wash. 
238,    68    Pac.    723. 

34.  See,  Bankruptcy,  for  chattel  mortgages 
as  preferences  or  fraudulent  transfer  under 
bankruptcy  act.  See.  Limitation  of  Actions, 
for  operation  of  limitation  laws  on  chattel 
mortgage.  See  Fraudulent  Conveyances,  for 
mortgage  in  fraud  of  creditors. 

Cur.    Law — 33. 


35.  Hammon,    Chat.    Mortg. 

36.  Long  v.  State  (Fla.)  32  So.  870.  An  in- 
strument reciting  indebtedness  of  a  certain 
amount  on  land  and  that  to  secure  the  debt 
parties  mortgaged  certain  animals,  "and  duly 
signed,  is  a  mortgage  to  secure  the  payment 
of  the  money  and  not  an  obligation  to  pay  It 
— Acton  V.  Walker's  Ex'x,  24  Ky.  L.  R.  2377, 
74  S.  W.   231. 

37.  Dothan  Guano  Co.  v.  Ward,  132  Ala. 
380.  In  this  case  an  Instrument  linder 
which  one  promised  to  pay  a  certain  amount 
of  cotton  or  the  market  value  thereof  to  the 
payee  and  to  secure  the  note,  granted,  bar- 
gained and  sold  to  the  payee  all  his  live 
stock,  giving  the  payee  after  maturity  the 
right  to  seize  and  sell  as  he  deemed  best, 
was  held  a  mortgage — Id. 

38.  McCormick  Harvesting  Mach.  Co.  v. 
Mills  (Neb.)  89  N.  W.  621.  Conditional  sales, 
see  Sales.  In  Missouri,  Kentucky  and  Texas 
the  retention  of  title  by  seller  until  consid- 
eration is  paid,  makes  the  instrument  a  chat- 
tel   mortgage — ^Fairbanks,    Morse    &    Co.    v. 


514 


CHATTEL   MORTGAGES. 


§    2 


not  a  mortgage  where  a  slock  of  goods  is  sold  to  one  residing  in  another  town,  and 
the  purchaser  informs  all  parties  interested  of  the  purchase,  and  files  a  bill  of  sale 
in  the  clerk's  office  and  removes  the  sign  of  the  seller  from  his  door.^®  So  there  is 
an  executory  contract  for  the  manufacture  and  sale  of  lumber,  and  not  a  chattel 
mortgage  under  a  contract  for  the  output  of  a  mill,  the  purchaser  to  make  ad- 
vances as  required  to  procure  logs  and  pay  operating  expenses,  the  logs  and  the 
lumber  manufactured  therefrom  to  bear  purchaser's  brand  and  be  his  property.** 
As  between  parties,  a  lease  binding  the  property  of  lessee  for  the  payment  of  the 
rent  is  a  mortgage.*^ 

§  2.  Suhject-matter — ]Y]iat  may  he  morigaged. — The  rule  allowing  mort- 
gage of  any  chattel  or  chattel  interest  capable  of  sale  and  transfer  excludes  real  es- 
tate*^ and  liquor  licenses.*^  One  giving  a  chattel  mortgage  on  property  is  estopped 
to  deny  its  character  as  personalty.** 

Title  and  interest  of  mortgagor. — The  mortgagor's  title  to  property  need  not 
be  absolute  in  order  to  render  the  mortgage  effective,*'  thus  a  series  of  chattel  mort- 
gages is  not  rendered  invalid  by  the  fact  that  at  the  date  of  the  first,  the  goods 
covered  by  the  mortgage  had  not  all  been  acquired.*®  A  mortgage  on  property  not 
in  existence  is  invalid.*^  Ownership  is  presumed  from  the  fact  of  giving  the  mort- 
gage,*^ but  not  as  against  one  not  a  party  to  a  mortgage.*®  In  Alabama,  executors 
are  without  power  to  mortgage  crops  to  secure  future  advances  necessary  to  raise 
crop.'°  A  lessee's  mortgage  of  crops  will  not  cover  crops  raised  by  a  sublessee,  an 
order  for  which  had  previously  been  given  to  a  third  person. °^ 

Description  of  property. — Except  as  between  the  parties  and  persons  having 
actual  notice,  a  mortgage  of  chattels  must  so  describe  them  either  expressly  or  by 
reference,  that  a  stranger  following  the  inquiry  suggested  by  the- description  may 
definitely  identify  the  property."*^     An  erroneous  geographical  location  may  be  re- 


Baskett  (Mo.  App.)  71  S.  W.  1113;  Rankin  v. 
McFarlane  Carriage  Co..  25  Ky.  L.  R.  258,  75 
S.  W.  221;  Parlin  &  OrendorfE  Co.  v,  Davis' 
Estate  (Tex.  Civ.  App.)  74  S.  "W.  951 


Fishier   v.   Stout,   74   App.   Div.    (N.   T.) 

Stelling   V.    G.    "W.    Jones   Lumber    Co. 

A.)    116  Fed.   261. 

Feller  v.  McKillip  (Mo.  App.)   75  S.  W. 


39. 
97. 
40. 

(C.  c. 

41. 

379. 

42.  Rev.  St.  §  3385 — Beeler  v.  C.  C.  Mercan- 
tile Co.    (Idaho)    70  Pac.   943. 

43.  Christian  Feigenspan  v.  Mulligan  (N. 
J.  Law)  53  Atl.  1124.  The  fact  that  the  mort- 
irage  of  a  liquor  license  requires  a  sale  for 
the  best  price  obtainable  does  not  authorize 
the  mortgagee  to  take  possession  of  the  li- 
cense— Id. 

44.  Gordon  v.  Miller,    28   Ind.  App.    612. 

45.  Where  at  the  time  of  the  mortgage, 
neither  the  mortgagor  nor  his  vendor  had 
any  title  to  the  mortgaged  property,  the 
mortgage  was  void  as  to  subsequent  mort- 
gagees from  the  vendor  of  the  mortgagor, 
who  was  In  possession  when  both  mort- 
gages were  executed — New  England  Nat. 
Bank  v.  Northwestern  Nat.  Bank,  171  Mo. 
307.  One  in  possession  of  chattels  under  con- 
ditional contract  of  sale,  has  a  mortgageable 
interest  in  the  property — Cutting  v.  Whltto- 
more  (N.  H.)  54  Atl.  1098;  Friedman  v.  Phil- 
lips. 116  N.  Y.  St.  Rep.  96.  Mortgage  of  a 
registered  trade-mark  duly  described,  giving 
mortgagee  the  right  to  manufacture  a  rem- 
edy, is  sufficient  for  that  p  irpose  though  the 
certificate  of  registration  is  invalid — Tuttle 
v.    Blow    (Mo.)    75    S.  "W.    617. 


46.  In  re  Durham,  114  Fed.  750. 

47.  McKinney  v.   Ellison    (Tex.   Civ.   App.) 
75   S.   W.   55. 

Mathew    v.    Mathew,    138    Cal.    334,    71 
344. 
Syck  V.  Bossingham   (Iowa)   94  N.  W. 


48, 
Pac. 

49. 
920. 

50. 

51. 

52. 
N.    W. 


Jones  V.  Peebles,   133  Ala.   290. 
Norfleet  v.   Baker,   131   N.   C.    99. 
First  Nat.  Bank  v.  Johnson    (Neb.)    94 
837;    City   Nat.    Bank   v.    Goodloe-Mc- 


Clelland  Commission  Co.,  93  Mo.  App.  123. 
Where  the  description  Is  too  indefinite  to 
furnish  aid  in  identifying  the  property,  the 
mortgage  is  void  as  to  subsequent  purchas- 
ers— Young  V.  Bank  of  Princeton,  97  Mo.  App. 
576;  First  Nat.  Bank  v.  Hughes  (Neb.)  92 
N.  W.  986.  As  description  of  animals  sole- 
ly by  number — Hardaway  v.  Jones  (Va.)  41 
S.  E.  957.  A  mortgage  Is  void  aa  to  inno- 
cent purchasers,  where  the  property  is  de- 
scribed as  in  one  place  when  in  fact  it  is 
in  another — Jones  Bros.  Commission  Co.  v. 
Long,  90  Mo.  App.  8.  Erroneous  description 
of  subject  matter  may  be  disregarded  where 
there  is  sufficient  In  the  descriptive  parts  or 
the  mortgage  to  definitely  locate  the  prop- 
erty— Swlnney  v.  Merchants'  Bank,  95  Mo. 
App.   186. 

There  oan  be  no  mortgage  lien  on  speciflo 
chattels  by  a  mortgage  of  a  certain  number 
out  of  a  mass  without  Identifying  them — 
First  Nat.  Bank  v.  Johnson  (Neb.)  94  N.  W. 
837. 

Future  crops  are  sufficiently  described  by 
the  words  "all  my  crops  I  may  raise  durinir 
the  year  1901"   evidence  showing  that   mort- 


§   3 


CONSIDERATION. 


515 


jected  as  surplusage  where  a  construction  of  the  entire  instrument  will  sufficiently 
locate  the  property. "^^  Recitals  as  to  character  of  mortgagee"*  or  place  of  business 
are  not  conclusive.^"  Insufficiency  of  description  cannot  be  taken  advantage  of  by 
a  creditor  with  actual  notice  that  the  property  is  covered  by  a  mortgage."®  Pos- 
session taken  by  the  mortgagee  will  cure  a  defective  description  of  the  property."^ 
An  erroneous  description  of  property  in  the  petition  is  cured  by  a  correct  descrip- 
tion in  the  judgment  rendered  in  an  action  to  enforce  the  mortgage."*  The  ques- 
tion of  the  identity  of  the  property  covered  by  the  mortgage  is  for  the  jury."® 

Property  covered  by  mortgage. — A  mortgage  on  after  acquired  property  is 
valid,^  particularly  where  possession  is  taken  before  the  rights  of  third  parties 
attach.®^  The  mortgage  binds  a  purchaser  from  the  mortgagor  assuming  his  obli- 
gations under  the  mortgage.®^  A  mortgage  of  machinery  used  for  a  particular 
purpose  and  necessary  additions  will  not  cover  other  machinery  and  appliances  not 
used  in  that  particular  line.^^  A  general  description  of  merchandise  covers  only 
merchandise  in  stock  when  the  mortgage  was  executed  and  not  stock  afterwards 
added  by  the  purchaser.®*  A  mortgage  of  a  liquor  license  will  be  presumed  to 
cover  the  privilege  conferred  by  the  license  and  not  the  license  itself,*"  and  will  not 
authorize  a  mortgagee  to  take  possession  of  the  instrument  for  the  purpose  of  pre- 
venting the  mortgagor  from  conducting  the  business.®®  A  chattel  mortgage  col- 
lateral to  an  agricultural  lien  may  cover  items  not  strictly  protected  by  the  lien.'^ 

§  3.  Consideration. — In  Missouri  a  chattel  mortgage  to  secure  a  usurious 
loan  is  void.®^  The  fact  that  a  mortgage  is  given  to  secure  a  debt  of  a  third  person 
does  not  make  the  mortgagor  personally  liable  for  the  debt  in  the  absence  of  an 
express  covenant  to  pay  the  money.®®     Where  there  is  an  entire  failure  of  consid- 


g-agor  owned  land  during-  the  entire  year  In 
that  county  and  that  crop  in  question  was 
raised  on  the  land  in  that  year — Woods  v. 
Rose,  135  Ala.  297.  After  acquired  property 
is  not  covered  by  a  clause  mortg'ag-ing'  "all 
cord  wood  and  pilings  cut  by  or  for  me" — 
Galveston,  etc.,  R.  Co.  v.  Hill  Merc.  Co.  (Tex. 
Civ.  App.)   71  S.  W.  797. 

Held  sufficient:  "All  goods  in  the  store  of 
the  makers  doing  business  In  a  certain  city," 
mortgagor  having  but  one  place  of  business  in 
such  city  and  the  stock  was  Ihe  one  referred 
to  in  the  mortgage — Davis  v.  Turner  (C.  C.  A.) 
120  Fed.  605.  "12  two  year  old  heifers  (2  past 
3  in  spring)  8  spring  calves,  1  bay  mare  8  years 
old,  1  roan  mare  10  years  old.  Increase  above 
included" — Ward  v.  Johnson  (Kan.)  72  Pac. 
242.  A  mortgage  describing  property  as  "1000 
lbs.  of  lint  (good  cotton)  corn,  fodder"  made 
or  to  be  made  on  the  mortgagor's  land  will 
convey  the  corn — Graves  v.  Currie,  132  N.  C. 
307.  A  mortgage  of  cattle  as  a  certain  num- 
ber of  yearlings.  Is  sufficient  to  cover  the 
cattle  intended  though  at  the  time  of  execu- 
tion of  the  mortgage  none  of  the  cattle  were 
12  months  old — Sparks  v.  Deposit  Bank,  24 
Ky.  L.  R.  2333,  74  S.  W.  185. 

53.  City  Nat.  Bank  v.  Goodloe-McClelland 
Commission   Co.,    93   Mo.   App.    123. 

54.  Elston  V.   Roop,    133   Ala.    331. 

55.  Gilbert  v.  Sprague,  196  111.  444. 

56.  Cohee  v.  First  Nat.  Bank  (Neb.)  95 
N.  W.  610. 

57.  Nichols  &  Shepard  Co.  v.  Bishop 
(Okl.)  70  Pac.  188.  Possession  may  be  taken 
by  any  acts  amounting  to  an  assumption  of 
possession,  and  control  and  a  particular  cere- 
mony or  formality  is  not  required — Id. 


58.  Day  fc  C.  Lumber  Co.  v.  Mack,  24  Ky. 
L.   R.    640,    69   S.   W.    712. 

59.  Third  Nat.  Bank  v.  Blosser,  65  Kan. 
859,  70  Pac.  373.  It  is  for  the  court  to  de- 
termine whether  description  is  sufficient  to 
identify  any  property  and  for  the  jury  to  de- 
cide whether  it  is  sufficient  to  cover  the 
property  in  dispute,  there  being  an  erroneous 
recital  as  to  location  of  the  property — Liv- 
ingston V.   Stevens    (Iowa)    94  N.  W.   925. 

60.  A  chattel  mortgage  on  a  street  rail- 
road constructed  and  to  be  constructed  cov- 
ers additions  which  become  an  essential 
part  of  the  road,  though  the  property  added 
was  furnished  under  a  contract  that  the  title 
must  remain  in  the  seller  until  paid  for — 
Westinghouse  Elec.  Mfg.  Co.  v.  Citizens'  St. 
R.  Co.,  24  Ky.  L.  R.  334,  68  S.  W.  463.  Un- 
der a  mortgage  on  stock  that  the  mortgagor 
might  have  from  time  to  time  to  secure  ad- 
vances up  to  a  certain  value  for  a  year,  stock 
purchased  within  the  year  and  after  the 
stock  In  existence  at  the  time  of  the  execu- 
tion of  the  mortgage  was  destroyed  by  fire, 
are  covered  by  the  mortgage — Cooper  v. 
Rouse,  130  N.  C.  202. 

61.  Burford  v.  First  Nat.  Bank  (Ind.  App.) 
66  N.  E.  78. 

62.  63.  In  re  Sentenne,  etc.,  Co.,  120  Fed. 
436. 

6i.  B.  A.  Godfrey  &  Sons  Co.  v.  Citizens' 
Nat.  Bank   (Neb.)    90  N.  W.  239. 

65,  66.  Christian  Felgenspan  v.  Mulligan 
(N.  J.  Law)   53  Atl.  1124. 

67.  Bostlck   V.   Ammons,    63   S.    C.    302. 

68.  Bell  V.  Mulholland,  90  Mo.  App.  612; 
Adams  V.  Moody,  91  Mo.  App.  41;  Coleman 
V.  Cole,  96  Mo.  App.  22. 

69.  Adams   v.   Moody,   91   Mo.   App.   41. 


516 


CHATTEL  MORTGAGES. 


§   4 


eration  for  a  mortgage,  the  mortgagee  may  not  recover  where  the  property  covered 
is  turned  over  to  another  in  satisfaction  of  a  valid  claim/" 

§  4.  Fraudulent  conveyances. — A  mortgage  alloAving  possession  to  remain  in 
the  mortgagor  with  authority  to  sell  in  the  usual  course  of  business  is  void  as  to 
creditors/^  unless  the  mortgage  requires  the  application  of  the  proceeds  to  the 
debt/-  but  not  where  the  proceeds  are  used  to  pay  other  creditors."  The  failure 
to  take  possession  or  record  will  postpone  the  mortgage  to  claims  of  creditors.^* 
Creditors  intended  by  a  statute  making  a  mortgage  void  as  to  creditors  where  pos- 
session is  retained  are  those  who  have  legally  fastened  a  lien  or  charge  upon  the 
property.'^'  Between  the  parties  it  is  valid.^'  Under  the  New  Jersey  chattel 
mortgage  act,  invalidating  mortgages  where  possession  is  retained  by  the  mortgagee, 
unless  an  affidavit  of  consideration  is  filed,  the  affidavit  should  show  that  the  affiant 
is  the  holder  of  the  mortgage,  or  his  agent  or  attorney."  The  affidavit  may  not  be 
made  by  an  agent  or  attorney,  unless  the  agency  relates  to  the  holding  of  the  mort- 
gage,'* and  the  mortgagor  is  not  permitted  to  act  as  agent  of  the  holder.''^  A 
mortgagee  of  after  acquired  property  is  not  entitled  to  priority  as  against  a  sub- 
sequent mortgage,  where  at  the  time  of  the  later  mortgage  he  had  not  taken  pos- 
session.*" The  mortgagee's  possession  must  be  actual,  constructive  possession  not 
being  sufficient  as  against  creditors. ^^  Possession  may  be  taken  at  any  time  before 
the  rights  of  third  persons  intervene.*-  Eeasonable  dispatch  is  required,  and  it  i> 
a  question  of  fact  whether  reasonable  dispatch  has  been  exercised.*'  An  oral  agree- 
ment that  a  mortgage  should  secure  future  advances  to  the  mortgagor  is  void  as  to 
creditors.** 

§  5.  Form,  execution  and  delivery. — Strictness  of  form  is  not  required.*" 
As  between  the  parties,  it  is  not  necessary  that  the  mortgage  should  be  in  writing.*''" 
The  clearest  evidence  is  required  to  show  that  an  instrument,  in  form  a  bill  of 
sale,  is  in  reality  a  mortgage.*^     In  Kentucky  a  seal  is  not  required  where  the  mort- 


70.  Hezel  V.   Schatz   (S.   D.)   95   N.  W.   926. 

71.  Enck  V.  Gerding,  67  Ohio  St.  245;  Stev- 
ens   V.    Curran    (Mont.)    72    Pac.    753. 

72.  State  V.  Fidelity  &  Deposit  Co.,  94  Mo. 
App.  184;  Burford  v.  First  Nat.  Bank  (Ind. 
App.)  66  N.  E.  78.  Retention  of  possession 
will  invalidate  a  mortgage  given  within  four 
months  of  bankruptcy  though  it  requires  pay- 
ment of  proceeds  on  mortgage — Egan  State 
Bank  V.   Rice   (C.  C.  A.)    119   Fed.   107. 

73.  Bank  of  Liberal  v.  Anderson  (Mo. 
App.)    75   S.   W.   189. 

74.  2  Gen.  St.  p.  2113 — Hardcastle  v.  Stiles 
CN.  J.  Law)  55  Atl.  104.  Comp.  St.  1899.  c. 
32.  §  14 — Johnson  v.  Spaulding  (Neb.')  95  N. 
W.  808;  Hillebrand  v.  Nelson  (Neb.)  95  N.  W. 
1068. 

75.  Folsom  v.  Peru  Plow  Co.  (Neb.)  95 
N.   W.   635. 

76.  Rev.  St.  Mo.  1899.  §§  33:7.  3404,  invali- 
dating mortgages  not  recorded  in  the  county 
where  the  mortgagor  resides  applies  only  as 
to  creditors  and  purchasers — Bagley  v.  Har- 
mon.  91   Mo.  App.   22. 

77.  78,  79.  Watson  v.  Rowley,  63  N.  J.  Eq. 
195. 

80.  New  England  Nat.  Bank  v.  Northwest- 
ern  Nat.   Bank,   171   Mo.   307. 

81.  In  this  case  the  mortgagee  merely 
laid  his  hands  on  the  articles  covered  by 
the  mortgage  saying  that  they  were  his  prop- 
erty and  that  he  demanded  and  took  posses- 
sion but  removed  nothing  and  the  mortgagor 
continued  to  use  the  property  in  connection 
with  his  business — Sloan  v.  National  Surety 
Co.,    74    App.    Div.    (N.   T.)    417;    Rice   v.   Sally 


(Mo.)  75  S.  "W.  398.  The  requirement  Is  not 
satisfied  where  the  attorney  of  the  mortgagee 
goes  to  the  tenant  of  the  mortgagor  and 
states  to  him  that  he  takes  possession  of 
the  property,  and  requests  him  not  to  al- 
low it  to  pass  out  of  his  hands  without  some 
authority  (3  Rev.  St.  [9th  Ed.]  p.  2013) — Wild 
V.  Porter,  173  N.  Y.  614.  Evidence  insufficient 
to  show  a  bona  flde  change  of  possession  un- 
der an  unrecorded  mortgage — Rice  v.  Sallv 
(Mo.)    75    S.   W.    398. 

82.  McFarlan  Carriage  Co.  v.  Wells  (Mo. 
App.)    74    S.    W.    878. 

83.  Hardcastle  v.  Stiles  (N.  J.  Law)  55 
Atl.   104. 

84.  F.  Gross  &  Co.  v.  First  Nat.  Bank 
(Tex.    Civ.    App.)    72    S.    W.    402. 

85.  Davis  v.  Turner  (C.  C.  A.)  120  Fed. 
605.  Under  a  statute  requiring  a  mortgage 
to  be  In  writing  the  fact  that  the  parties 
used  a  form  suitable  to  another  kind  of  mort- 
gage and  failed  to  strike  out  an  Irrelevant 
provision  will  not  invalidate — Harris  v.  State 
(Tex.  Cr.  App.)    67  S.  W.  327. 

86.  Reiss  v.  Argubright  (Neb.)  92  N.  W. 
988. 

87.  Powers  V.  Benson  (Iowa)  94  N.  W. 
929.  Evidence  of  Insolvency  of  a  firm  Is  ad- 
missible in  a  suit  to  have  a  bill  of  sale  of 
plaintiff's  interest  in  the  firm  to  defendant 
declared  security  for  the  firm's  Indebtedness 
to  defendant,  as  corroborating  plaintiff's 
statement  that  the  bill  was  merely  Intended 
to  secure  defendant  on  account  of  the  firm's 
indebtedness  to  him — Donnelly  v.  McArdle. 
117    N.    T.    St.    Rep.    193. 


§  5 


FORM,     EXECUTION     AND     DELIVERY. 


517 


gage  is  otherwise  properly  executed.^*  In  some  states  joint  execution  by  husband 
and  wife  is  required  where  the  mortgage  covers  exempt  property**  and  household 
goods.®'*  A  mortgage  obtained  by  duress®^  or  imposition®^  is  invalid.  Failure  of 
mortgagor  to  read  the  instrument  will  not  defeat  the  title  of  a  purchaser  at  a  fore- 
closure sale.®^  New  Jersey  requires  an  affidavit  of  consideration  which  must  show 
how  the  relation  of  debtor  and  creditor  arose/*  and  a  mortgage,  invalid  as  against 
a  creditor  for  failure  of  affidavit,  is  void  as  against  an  assignee  imder  the  assign- 
ment laws.®^  In  South  Dakota  the  acknowledgment  of  the  receipt  of  a  copy  of  the 
mortgage  must  be  indorsed  on  the  mortgage  over  the  mortgagor's  signature,®®  and 
this  defect  may  be  attacked  by  subsequent  mortgagees  and  attaching  creditors.®^ 
As  between  the  parties,  a  chattel  mortgage  is  not  invalid  by  failure  to  attach  the 
affidavit  of  good  faith  required  by  the  laws  of  Idaho.®*  This  statute  only  invali- 
dates the  mortgage  against  subsequent  creditors  and  purchasers  in  good  faith.®® 
The  Illinois  act  requiring  the  mortgage  to  state  on  its  face  the  fact  of  security  for 
notes  does  not  apply  where  the  mortgage  is  held  by  the  mortgagee,  the  purpose  of 
the  act  being  to  regulate  the  assignment  of  the  notes.^  The  question  as  to  whether 
a  mortgage  is  to  be  construed  in  connection  with  other  collateral  agreements  affect- 
ing its  character  is  one  for  the  jury.^  A  mortgage  rigned  by  a  member  of  a  firm 
without  authority  or  knowledge  of  his  partners  is  not  binding  on  the  other  part- 
ners, where  delivered  after  dissolution  of  the  firm  and  knowledge  of  the  facts  by 
mortgagee.^  Mortgages  valid  in  the  state  of  execution  will  be  considered  valid  in 
other  states.* 

AcJcnowledgment  and  extension. — An  unacknowledged  chattel  mortgage  is  valid 
as  between  the  parties.^  In  Illinois  a  mortgage  is  properly  acknowledged  before  a 
justice  in  the  town  where  a  corporation  has  its  office,  within  the  statute  requiring 


88.  Burkamp  v.  Healey,  24  Ky.  L.  R.  1926, 
72   S.   W.    759. 

89.  Gen.  St.  1901.  §  4255— Searle  v.  Gregg 
(Kan.)  72  Pac.  544;  Alexander  v.  Logan,  65 
Kan.  505,  70  Pac.  339;  Kindall  v.  Lincoln 
Hardware  &  Implement  Co.  (Idaho)  70  Pac. 
1056. 

Foreclosure  of  mortgage  executed  by  the 
husband  alone  will  be  restrained  by  injunc- 
tion— Kindall  v.  Lincoln  Hardware  &  Imple- 
ment Co.  (Idaho)  70  Pac.  1056.  The  Iowa 
laws  providing  for  joinder  of  husband  and 
wife  in  the  mortgage  of  exempt  property,  do 
not  require  that  the  husband  and  wife  both 
join  in  the  acknowledgment  where  it  has 
been  signed  by  both  (Code  Iowa,  §  2906) — 
Brown   v.    Koenig    (Mo.    App.)    74    S.   W.    407. 

90.  2  Gen.  St.  p.  2111,  §  41 — Dunham  v. 
Cramer,  63  N.  J.  Eq.  151.  The  New  Jersey 
Statute  requiring  the  signature  of  the  mort- 
gagor's wife  to  a  mortgage  covering  house- 
hold  goods  has  no  application  where  It  Is 
not  shown  that  the  goods  were  in  the  use 
and  possession  of  the  family  in  that  state — 
Id.  It  is  void  as  to  creditors  independent  of 
the  question  of  bad  faith  or  intent  to  de- 
fraud— Id. 

91.  Sufficiency  of  evidence  to  sustain  al- 
legation of  duress — Iowa  Sav.  Bank  v.  Frink 
(Neb.)  92  N.  W.  916;  Reichle  v.  Bentele,  97 
Mo.  App.  52.  There  is  duress  invalidating 
chattel  mortgage  where  a  wife  executes  the 
mortgage  for  her  husband's  debt  under  a 
threat  to  seize  the  stock  on  the  farm  and 
sell  same  at  forced  sale — Searle  v.  Gregg 
(Kan.)    72  Pac.  544. 

92.  Mis-reading  Instrument  to  Illiterate 
and  concealing  its  nature — Layson  v.  Cooper 


(Mo.)  73  S.  "W.  472.  A  chattel  mortgage  will 
be  cancelled  where  mortgagor  was  Imposed 
upon  by  representations  that  the  Instru- 
ment was  a  conditional  contract  of  sale — 
W.  W.  Kimball  Co.  v.  Deaton  (Mo.  App.)  74 
S.  W.  427.  Evidence  that  the  property  in- 
cluded in  the  mortgage  did  not  belong  to 
mortgagor,  held  admissible  to  support  con- 
tention of  plaintiff  that  he,  an  Illiterate,  was 
imposed  upon  and  the  mortgage  was  not  cor- 
rectly read  to   him — Id. 

93.  Jumiska  v.  Andrews,  87  Minn.  515; 
Forker  v.   Crockett    (Iowa)    92  N.  W.   76. 

94.  Dunham  v.  Cramer,  63  N.  J.  Eq.  161. 

95.  Watson  v.  Rowley,   63  N.  J.  Eq.  196. 

96.  Acknowledgment  below  mortgagor's 
signature  Is  not  sufficient  (L.  197,  c.  95,  §  2) 
— Park  V.   Robinson,   15   S.  D.   551. 

97.  Park  V.   Robinson,    15   S.   D.   551. 

98.  Rev.  St.  1887,  §  3380 — Marchand  v. 
Ronaghan  (Idaho)  72  Pac.  731.  An  affidavit 
otherwise  sufficient  will  satisfy  the  law, 
though  the  word  "defraud"  is  omitted  (Rev. 
St.  Idaho,  §  3386)  Deseret  Nat.  Bank  v.  Kid- 
man. 25  Utah,  379,  71  Pac.  873. 

99.  Deseret  Nat.  Bank  v.  Kidman,  26  Utah, 
379,  71  Pac.  873. 

1.  Laws  1895,  p.  260 — Smith  v.  Schey,  101 
111.   App.   223. 

2.  Hargadine,  etc.,  Co.  v.  Bradley  (Ind.  T.) 
69    S.   W.    862. 

3.  Meyer  v.  Michaels  (Neb.)  95  N.  W.  63. 

4.  Brown  v.  Koenig  (Mo.  App.)  74  S.  W. 
407. 

5.  McFarlan  Carriage  Co.  v.  Wells  (Mo. 
App.)  74  S.  W.  878;  Brown  v.  Koenier  (Mo. 
App.)     74    S.    W.    407. 


518 


CHATTEL  MORTGAGES. 


acknowledgment  before  a  justice  in  the  town  of  the  mortgagor's  residence.'  The 
statute  of  that  state  governing  the  extension  of  chattel  mortgages  is  to  be  strictly 
construed,  where  the  rights  of  third  parties  are  involved,  as  the  statute  is  in  dero- 
gation of  the  common  law  of  pledges.'^  The  failure  to  file  the  affidavit  with  the 
justice  will  defeat  an  extension.^  The  act  was  intended  only  for  the  protection 
of  innocent  parties,  and  is  not  required  as  between  the  parties.®  In  determining 
whether  the  affidavit  was  filed  in  time,  days  of  grace  are  considered."  One  becom- 
ing a  general  creditor  after  renewal  cannot  take  advantage  of  failure  to  renew  the 
mortgage  within  thirty  days  preceding  the  expiration  of  the  year  from  the  time  of 
its  record.^^ 

§  6.  Filing  or  recording  and  notice  of  title  or  rights. — Recording  acts  in- 
clude all  conveyances  intended  to  operate  as  mortgages.^^  They  do  not  affect  the 
validity  of  the  instrument  as  between  the  parties.^^  A  mortgage  covering  both  real 
and  personal  property  is  valid  as  against  creditors  as  to  the  personalty  only  where 
filed  as  a  chattel  mortgage.^*  In  Texas  unrecorded  chattel  mortgages  are  void  which 
cover  both  exempt  and  nonexempt  property.^^  Under  the  Colorado  assignment  law, 
saving  valid  and  subsisting  liens,  an  unrecorded  mortgage  is  void  and  not  entitled 
to  preference.^'  Where  the  mortgagee  takes  possession  before  other  rights  attach, 
it  is  not  important  that  the  mortgage  was  not  recorded.^'^  In  some  states  a 
chattel  mortgage  must  be  recorded  in  the  county  of  the  owner's  residence,  if  he 
lias  a  place  of  residence  in  the  state,*'  though  the  property  is  in  another  county.*^ 
In  other  states  it  may  be  recorded  in  the  county  where  the  property  is  situated  or 
in  the  county  of  the  mortgagor's  residence,  if  he  lives  in  the  state.^°  In  Nebraska 
there  can  be  no  sale  of  mortgaged  chattels  in  a  county  other  than  that  in  which 
the  mortgage  was  originally  filed,  unless  the  mortgage  is  also  filed  in  the  county  of 
sale.'^*  Under  the  California  statute  requiring  record  in  the  coimty  where  the 
property  is  situated,  a  mortgage  on  property  situated  in  more  than  one  county  and 
recorded  in  one  only  of  such  counties  is  valid  only  as  to  the  property  in  the  county 
of  record.^^     The  mortgage  must  be  recorded  within  a  reasonable  time,^^  where 


6.  Gilbert  v.   Sprague,    196   lU.   444. 

7,  8.     Grlffen  v.  Henry,  99  111.  App.   284. 

9.  Allcock  V.  Loy,   100  111.  App.   573. 

10.  Gilbert  v.  Sprague.  196  111.  444. 

11.  Baker  v.  Becker   (Kan.)   72  Pac.  860. 
la.     Dunham   v.    Cramer,   63   N.   J.   Eq.    151; 

Clark  V.  Baker  (Colo.)  69  Pac.  506;  Chitwood 
V.  Lanyon  Zinc  Co.,  93  Mo.  App.  225.  A  lease 
binding  the  property  of  lessee  for  the  pay- 
ment of  the  rent — Feller  v.  McKillip  (Mo 
App.)   75  S.  W.   379. 

13.  In  re  Williams,  120  Fed.  542;  Warner 
V.  Warner  (Ind.  App.)  66  N.  E.  760;  Allcock  v. 
Loy,  100  111.  App.  573;  McFarlan  Carriage  Co. 
V.  Wells  (Mo.  App.)  74  S.  W.  878.  The  instru- 
ment is  not  void  as  to  one  who  takes  the 
mortgaged  property  under  a  mistaken  belief 
of  his  own  ownership  of  it  (Gen.  St.  1901,  § 
4244) — Drnmm-Flato  Commission  Co.  v.  First 
Nat.  Bank,  65  Kan.  746,  70  Pac.  874.  An  un- 
recorded mortgage  good  between  the  parties 
is  good  as  against  the  mortgagor's  assignee 
for  the  benefit  of  creditors — In  re  Thompson, 
122  Fed.  174. 

14.  Hillebrand  v.  Nelson  (Neb.)  95  N.  W. 
1068. 

15.  Baughn  V.  Allen  (Tex.  Civ.  App.)  68 
S.  W.   207. 

16.  Clark  V.   Baker    (Colo.)    69    Pac.   506. 

17.  First  Nat.  Bank  v.  Barse  Live  Stock 
Commission    Co.,    198    111.    232. 


18.  Day  &  C.  Lumber  Co.  v.  Mack,  24  Ky. 
L.  R.  640,  69  S.  W.  712.  A  purchaser  at  the 
foreclosure  of  an  agister's  lien  is  protected 
against  a  mortgage  of  the  stock  recorded  in 
a  county  other  than  the  one  in  which  mort- 
gagor resides — Duke  v.  Duke,  93  Mo.  App. 
244. 

19.  Rev.  St.  Mo.  1899,  §  3404 — Rice  v.  Sally 
(Mo.)  75  S.  W.  398.  In  New  York  must  be 
filed  in  the  towns  where  members  of  part- 
nership reside  (Laws  1833,  p.  402,  c.  279,  §  2) 
— Russell  v.  St.  Mark,  83  App.  Div.  (N.  T.> 
543. 

20.  Bank  v.  Bond,  64  Kan.  346.  67  Pac.  818. 
In  the  county  of  mortgagor's  residence,  must 
show  that  a  mortgagor  was  a  resident  of  the 
county  in  which  the  mortgage  was  filed  and 
not  that  in  which  plaintiff's  mortgage  was 
filed — Hockaday-Gray  Co.  v.  Jonett  (Tex.  Civ. 
App.)   74  S.  W.   71. 

21.  McCormick  Harvesting  Mach.  Co.  v. 
Preitauer  (Neb.)   91  N.  W.  499. 

22.  Civ.  Code  Cal.  §§  2959,  2962— Guras  v. 
Porter,    118    Fed.    668. 

23.  Dunham  v.  Cramer,  63  N.  J.  Eq.  151. 
The  question  of  the  validity  of  a  mortgage, 
withheld  from  record  for  sixteen  months,  is 
a  question  of  fact  for  the  jury  where  the 
evidence  Is  conflicting  as  to  whether  it  was 
so  withheld  by  agreement  of  the  parties — 
E.  A.  Godfrey  &  Sons  Co.  v.  Citizens'  Nat. 
Bank     (Xeb.)    90    N.    W.    239. 


§^ 


FILING;    RECORDING;    NOTICE. 


519 


the  statute  fails  to  fix  the  time  for  record,^*  and  is  effective  as  notice  only  from 
the  time  of  record.^"^  Texas  requires  a  filing  forthwith.^'  Where  the  record  on 
the  removal  of  goods  to  another  jurisdiction  would  he  useless,  it  is  not  required, 
and  failure  so  to  record  will  not  be  regarded  as  a  badge  of  fraud.^''  A  trustee  in 
bankruptcy  attacking  it  for  failure  to  record  must  show  that  there  was  an  agreement 
to  withhold  or  that  prejudice  resulted  to  creditors  therefrom.^'  The  question  of 
the  priority  of  a  mortgage  filed  in  bankruptcy  proceedings  and  withheld  from 
record  for  an  unreasonable  time  is  to  be  determined  by  the  statutes  of  the  state 
where  the  mortgage  was  executed.*'  A  variance  between  a  copy  of  a  chattel  mort- 
gage filed  for  record  and  the  original,  to  be  fatal,  must  be  in  some  material  part.^" 
The  record  to  be  notice  should  show  correct  names  of  the  parties. ^^  AVliether  the 
record  of  a  chattel  mortgage  is  constructive  notice  under  the  statute  depends  on  the 
sufficiency  of  the  description.'*  Under  the  laws  of  New  Jersey  a  mortgage  is  in- 
valid where  recorded  in  the  wrong  book,  and  it  is  not  material  on  the  question  of 
validity  whether  the  negligence  was  that  of  the  mortgagee  or  of  the  clerk."  A 
mortgagee  under  a  mortgage,  void  as  to  a  portion  of  the  property  for  failure  to 
record,  has  the  burden  of  proving  the  property  as  to  which  the  mortgage  is  valid.'* 
Under  acts  invalidating  unrecorded  mortgages  as  against  creditors,  the  reasons  for 
withholding  the  mortgage  from  record  are  not  important."* 

Notice  of  title  or  rights. — A  purchaser  of  mortgaged  property  after  the  mak- 
ing and  filing  of  a  mortgage  on  such  property  takes  subject  to  the  mortgage.'"  One 
who  gives  credit  without  notice  of  a  prior  lien  is  not  affected  by  the  lien  of  an  un- 
recorded mortgage.'^  One  having  knowledge  of  a  prior  unrecorded  mortgage  takes 
subject  thereto."  A  creditor  is  not  required  to  examine  the  records  in  another 
state  for  mortgages  on  his  debtor's  property."  There  is  notice  to  put  mortgagee 
on  inquiry  where  the  mortgagor  informs  mortgagees  that  a  prior  mortgage  was 


24.  Rev.  St.  Wis.  1898,  §§  2313.  2314— In  re 
H.  G.  Andrae  Co.,  117  Fed.  561. 

25.  Rev.   L.  c.   198,   §  1 — Harrison  v.  J.   J. 

Warren  Co.    (Mass.)   66  N.  E.  589. 

26.  Austin  V.  Welch  (Tex.  Civ.  App.)  72  S. 
W.  881.  Requirement  Is  not  satisfied  where 
the  mortgagee  takes  the  mortgage  at  2 
o'clock  in  the  afternoon  and  at  5  o'clock  of 
the  same  afternoon  passes  the  clerk's  office 
without  filing,  the  filing  taking  place  on  the 
next  day — Id. 

27.  Foster  v.  McAlester  (C.  C.  A.)  114  Fed. 
145.  Under  the  Texas  law  requiring  record 
within  four  months  after  the  goods  have  been 
removed  from  the  county  where  the  mort- 
gage was  taken,  the  mortgagee  loses  his 
rights  as  against  a  subsequent  purchaser  in 
another  state  to  which  the  goods  were  re- 
moved after  their  surreptitious  return  to 
Texas  notwithstanding  the  mortgage  could 
not  have  been  recorded  In  such  other  state — 
Greene  v.  Bentley  (C.  C.  A.)   114  Fed.  112. 

28.  Deland  v.  Miller  &  Chaney  Bank 
(Iowa)   93  N.  W.  304. 

29.  In  re  H.  G.  Andrae  Co.,  117  Fed.  561. 

30.  Central  Nat.  Bank  v.  Brecheisen,  65 
Kan.   807,   70  Pac.    895. 

31.  A.  "VV.  Dixon,  not  notice  that  J.  W. 
Dixon  was  mortgagor — Johnson  v.  Wilson 
(Ala.)    34   So.    .392. 

82.  Code,  §  2468 — Hardaway  v.  Jones  (Va.) 
41  S.  E.   957. 

83.  Gen.  St.  p.  2113,  §  52^ — Knickerbocker 
Trust  Co.  v.  Penn  Cordage  Co.  (N.  J.  Ch.)  65 
AtL  231. 

34.     Quraa  v.   Porter,   118  Fed.   668. 


35.  Rev.  St.  1899,  §  3404 — Harrison  v.  South 
Carthage  Min.  Co.,  95  Mo.  App.   80. 

36.  Huber  v.  Ehlers,  76  App.  Div.  (N.  Y.) 
602;  Woods  v.  Rose,  135  Ala.  297.  Construct- 
ive notice  of  a  chattel  mortgage  is  not  fur- 
nished by  a  mortgage  made  by  one  not  the 
owner  of  the  property  or  by  one  using  a  fic- 
titious name — New  England  Nat.  Bank  v. 
Northwestern  Nat.  Bank,  171  Mo.  307. 

87.  Westlnghouse  Elec.  Mfg.  Co.  v.  Citi- 
zens' St.  R.  Co.,  24  Ky.  L.  R.  334,  68  S.  W. 
463;  Richards  v.  Jewett  (Iowa)  92  N.  W.  689. 
Failure  to  file  or  record  is  not  fraud  on  cred- 
itors in  the  absence  of  an  agreement  that 
the  mortgage  was  not  to  be  recorded  or  that 
the  creditors  were  induced  to  give  credit  on 
the  faith  that  no  mortgage  was  in  existence 
— Miller-Arthur  Drug  Co.  v.  Curtis  (Mo. 
App.)  67  S.  W.  712.  A  purchaser  without 
notice  of  the  subject  matter  will  take  free 
from  the  Hen  of  an  unregistered  mortgage — 
McArthur  v.  Mathis  (N.  C.)  45  S.  E.  530. 

38.  Russell  V.  St.  Mark,  ?3  App.  Div.  (N. 
T.)  543;  Burford  v.  First  Nat.  Bank  (Ind. 
App.)  66  N.  E.  78;  Reiss  v.  Argubright  (Neb.) 
92  N.  W.  988.  One  knowing  that  another 
was  engaged  in  the  business  under  a  busi- 
ness name  and  had  executed  a  mortgage  un- 
der such  name  who  purchases  at  an  execu- 
tion sale  of  such  mortgaged  property  against 
such  party  in  his  individual  name  is  not  a 
bona  fide  purchaser — Crawford  v.  Benoist, 
97  Mo.  App.   219. 

39.  Syck  v.  Bossingham  (Iowa)  94  N.  W. 
920. 


520 


CHATTEL   MORTGAGES. 


§7 


given  without  consideration  and  to  protect  him  against  creditors.**  Persons  who 
may  avail  themselves  of  failure  to  file  or  record  a  mortgage  must  have  an  interest 
in  the  property  such  as  lienors,  judgment  creditors,  officers,  etc.**  A  statute  in- 
validating an  unrecorded  mortgage  as  against  creditors  invalidates  a  mortgage  as 
against  an  execution  on  the  property,  notwithstanding  the  judgment  debt  was  in 
existence  at  the  time  of  the  execution  of  the  mortgage.*^  One  defending  against  a 
defectively  executed  mortgage,  on  the  ground  that  he  is  a  good-faith  purchaser, 
must  plead  such  defense,*^  and  has  the  burden  of  proof.**  A  mortgagee  is  under 
no  obligation  to  a  subsequent  incumbrancer  to  care  for  and  protect  the  security, 
where  he  has  no  notice  of  the  later  incumbrance.*'* 

§  7.  Title  and  ownership. — In  South  Dakota  the  legal  title  of  the  mortgaged 
property  is  in  the  mortgagor,  though  he  has  defaulted  and  delivered  possession.*^ 
In  other  states  a  mortgagee,  on  failure  of  the  mortgagor  to  pay  the  debt  at  ma- 
turity, has  an  absolute  title  to  the  property,  subject  only  to  the  right  of  the  mort- 
gagor to  redeem,*^  and  the  property  may  not  be  levied  on  for  mortgagor's  debt.*^ 
The  mortgagor  in  possession  is  the  general  owner  of  the  property  in  law;  his 
ownership  rests  on  the  equitable  right  to  clothe  himself  with  the  full  legal  title.*® 
The  mortgagee's  title  is  special,  so  that  until  the  right  of  redemption  is  extin- 
guished, his  property  interest  is  limited  to  the  amount  due."*'  A  second  mortgagee 
cannot  recover  for  conversion  against  the  first  mortgagee  in  possession,  unless  the 
property  was  worth  more  than  the  amount  due  on  the  first  mortgage."**  The  fact 
that  a  mortgage  authorized  the  mortgagor  to  remain  in  possession  of  wood  mort- 
gaged and  use  the  same  does  not  authorize  him  to  sell  such  wood.**^  A  mortgage 
of  a  trade-mark  and  a  formula  for  a  remedy,  the  mortgagor  giving  the  secret  formula 
to  be  used  in  case  it  became  necessary  to  foreclose,  conveys  the  right  to  manufac- 
ture and  sell  the  preparation  under  the  trade-name,  though  the  act  under  which 
the  trade-mark  was  registered  was  later  declared  invalid."' 

§  8.  Right  of  possession. — The  mortgagee  is  entitled  to  possession  of  the 
property  after  condition  broken,"*  without  the  consent  of  the  mortgagor,""  and  may 
maintain  replevin."^  In  Iowa  a  mortgage  may  stipulate  for  possession  to  be  taken 
whenever  the  mortgagee  chooses  to  do  so."^  A  mortgagee  taking  possession  of  prop- 
erty in  any  other  manner  than  that  provided  by  statute  is  guilty  of  conversion."* 
A  mortgage  may  allow  possession  to  be  taken  for  an  unreasonable  depreciation  of 
the  value  of  the  mortgaged  property,"'  and  the  mortgagor  on  account  of  a  contem- 


40.  Salmon  v.  Norrls,  115  N.  Y.  St.  Rep 
892. 

41.  Allcock  V.  Loy,  100  lU.  App.  573.  The 
Texas  statute  protecting-  subsequent  pur- 
chasers Intends  only  purchasers  by  contract 
and  does  not  include  a  purchaser  In  attach- 
ment proceedings — Scott  v.  Cox  (Tex.  Civ. 
App.)   70  S.  W.  802. 

tZ.     Pierson  v.  Hickey  (S.  D.)  91  N.  W.  839. 
43,  44.     Deseret   Nat.    Bank   v.   Kidman,    25 
Utah,  379,  71  Pac.  873. 

45.  Penney  v.  Miller  (Ala.)   33  So.  668. 

46.  This  case  held  that  the  mortgagor 
could  properly  sue  on  an  attachment  bond 
where  a  third  party  levied  on  the  mort- 
gagor's Interest  and  the  action  was  dis- 
missed— Jencks  v.  Murphy,  15  S.  D.  425. 

47.  Klinkert  v.  Fulton  Storage  Co.,  113 
Wis.  493;  Illinois  Trust  &  Sav.  Bank  v. 
Alexander  Stewart  Lumber  Co.  (Wis.)  94  N. 
W.  777.  Rev.  St.  1892,  §  3206a — St.  Mary's 
Mach.  Co.  V.  National  Supply  Co.  (Ohio)  67 
N.  E.  1055;  Western  Realty  Co.  v.  Musser,  97 
Mo.  App.   114. 

48.  Anderson  v.  Montgomery  County  Nat. 


Bank,  64  Kan.  587,  67  Pac.  1110.  Notwith- 
standing possession  by  mortgagor  long  after 
note  becomes  due — Burge  v.  Hunter,  93  Mo. 
App.   639. 

49,  50.  Illinois  Trust  &  Sav.  Bank  v.  Al- 
exander Stewart  Lumber  Co.  (Wis.)  94  N.  W. 
777. 

51.  Dempster  Mill  Mfg.  Co.  v.  Wright 
(Neb.)    95  N.  W.   806. 

52.  Meyer  v.  Munro  (Idaho)   71  Pac.  969. 

53.  Tuttle  V.  Blow  (Mo.)   75  S.  W.  617. 

54.  Edmonston  v.  Jones,  96  Mo.  App.  83; 
Elston  V.  Roop,   133  Ala.  331. 

55.  Singer  Mfg.  Co.  v.  Rios  (Tex.)  71  S. 
W.  275. 

56.  Feller  v.  McKilllp  (Mo.  App.)  75  S. 
W.   379. 

57.  Hocking  Val.  Coal  Co.  v.  Climie 
(Iowa)    92  N.  W.   77. 

58.  Marchand  v.  Ronaghan  (Idaho)  72 
Pac.    731. 

59.  An  Instruction  that  depreciation 
means  such  depreciation  as  impairs  any 
clause  of  the  security  and  prevents  It  from 
being    as    good    as    when    the    mortgage    Is 


^9 


LIENS    AND    PRIORITY. 


521 


plated  removal  to  another  location  may  not  reduce  the  stock  substantially/*  nor 
live  out  of  the  goods  to  an  unreasonable  extent.*^  Eights  under  insecurity  clause 
of  mortgage  must  not  be  arbitrarily  exercised.^^  The  facts  authorizing  possession 
under  an  insecurity  clause  must  be  such  as  did  not  exist  at  the  time  of  taking  the 
mortgage,  or,  if  they  did,  mortgagee  was  ignorant  of  the  same.^'  Under  an  inse- 
curity clause  in  New  York,  a  party  may  take  possession  where  there  has  been  a 
failure  to  comply  with  the  condition  of  the  mortgage  as  to  payment.®*  A  first 
mortgagee  is  entitled  to  possession  under  an  insecurity  clause  as  against  a  second 
mortgagee,  though  his  debt  has  not  matured  while  that  of  the  second  mortgagee  is 
past  due.®'  A  mortgagee  unreasonably  delaying  to  take  possession  loses  his  lien.®* 
A  wrongful  seizure  of  the  property  by  the  mortgagor  will  not  affect  the  mortgagee's 
rights  under  a  possession  previously  taken. ^'^  A  sale  of  goods  by  a  vendor  after 
default  of  the  vendee  under  a  bill  of  sale  intended  as  a  mortgage  operates  as  a 
conversion.®^  A  refusal  by  the  mortgagor  to  yield  possession  on  demand  after  de- 
fault amounts  to  a  conversion,  where  the  mortgage  authorizes  possession  on  de- 
fault.®' "Where  the  terms  of  a  mortgage  entitle  a  mortgagee  to  a  crop  at  the  time 
it  was  converted,  it  is  not  important  that  the  mortgagee  had  not  foreclosed  his 
mortgage.''®  For  withholding  possession  of  mortgaged  property  after  maturity  of 
the  mortgage  debt,  the  mortgagee's  recovery  is  limited  to  the  amount  due  on  the 
mortgage,''^  One  selling  mortgaged  property  and  disbursing  the  proceeds  is  liable 
for  the  proceeds,  though  not  in  possession.''^  A  mortgagee  allowing  a  mortgagor 
to  remain  in  possession  and  sell  at  private  sale  and  account  for  the  proceeds  may 
not  take  possession  and  sell  imder  the  mortgage.''*  The  character  of  possession 
under  conflicting  evidence  is  a  question  for  the  jury,''* 

§  9.  Liens  and  priorities;  waiver. — A  chattel  mortgage  takes  precedence  of  a 
later  agister's  claim.'"^  A  factor's  mortgage  lien  will  protect  a  balance  due  the  fac- 
tor, where  the  proceeds  of  shipments  have  been  partially  applied  on  other  accounts 
at  the  principal's  request."'®     Eelease  of  a  surety  on  a  note  and  the  taking  of  a  new 


^iven,  was  held  too  restrictive — Krebs  v. 
aumwalt,  91  Mo.  App.  404.  What  constitutes 
an  unreasonable  depreciation  is  a  question  for 
the  Jury — Id. 

60,  61.  Krebs  v.  Zumwalt,  91  Mo.  App. 
404. 

62.  Meyer  v.  Michaels  (Neb.)  95  N.  W.  63. 
The  exercise  of  the  right  is  authorized  where 
the  mortgagor  Is  about  to  do  some  act  tend- 
ing to  impair  the  security  of  the  mortgage, 
as  where  a  sale  of  a  substantial  part  of  the 
property  covered  is  made  without  the  con- 
sent of  the  mortgagee — Allen  v.  Cerny 
(Neb.)   94  N.  W.  151. 

63.  Meyer  v.  Michaels   (Neb.)    95  N.  W.  63. 

64.  Stage  v.  Van  Leuven,  112  N.  Y.  St. 
Rep.    960. 

65.  Russell  v.  St.  Mark,  83  App.  Div.  (N. 
Y.)  543. 

66.  Pflrshlng  v.   Peterson,   98   111.   App.    70. 

67.  First  Nat.  Bank  v.  Barse  Live  Stock 
Commission   Co.,   198   111.    232. 

68.  Frlck  V,  Kabaker,  116  Iowa,   494. 

69.  Mathew  v.  Mathew,  138  Cal.  334,  71 
Pac.  344.  A  conversion  defeating  the  mort- 
gagee's right  to  the  property  is  not  excused 
by  the  fact  that  for  several  years  previous 
an  agent  of  the  mortgagee  had  sanctioned 
such  conversion — First  Nat.  Bank  v.  Min- 
neapolis &  N.  Elevator  Co.,  11  N.  D.  280. 

70.  La  Rue  v.  St.  Anthony  &  D.  Elevator 
Co.  (S.  D.)  95  N.  W.  292.  Under  a  stipula- 
tion that  there  need  be  no  delivery  If  mort- 
gagor failed  to  raise  more  than  ten  bushels 


per  acre,  mortgagee's  testimony  that  judg- 
ing from  the  looks  of  the  crop  It  must  have 
been  considerably  over  that  amount,  is  sufB- 
cient  proof  of  that  fact  In  the  absence  of 
other  evidence  on  the  question — Id.  There 
is  sufficient  evidence  to  establish  the  grade 
of  wheat  raised  on  certain  land  where  the 
grade  of  one  load  taken  from  the  tract  Is 
shown  and  there  is  no  conflicting  evidence 
on   that  point — Id. 

71.  Klinkert  v.  Fulton  Storage  Co.,  113 
Wis.  493;  Illinois  Trust  &  Sav.  Bank  v.  Al- 
exander Stewart  Lumber  Co.  (Wis.)  94  N. 
W.  777;  Anderson  v.  B.  T.  Adams  &  Co.  (Ga.) 
43  S.  E.  982.  And  not  the  damages  for  lo.=;s 
of  use  thereof,  unless  it  is  shown  that  he 
could  have  used  it  if  it  had  not  been  with- 
held— Klinkert  v.  Fulton  Storage  Co.,  113 
Wis.  493.  In  Virginia,  the  trustee  is  en- 
titled to  recover  the  hire  of  animals  from 
the  time  of  demand — Hardaway  v.  Jones 
(Va.)    41   S.  E.   957. 

72.  City  Nat.  Bank  v.  Goodloe-McClelland 
Commission  Co.,  93  Mo.  App.  123. 

73.  F.  Groos  &  Co.  v.  First  Nat  Bank 
(Tex.  Civ.  App.)   72  S.  W.  402. 

74.  E.  A.  Godfrey  &  Sons  Co.  V.  Citizens' 
Nat.  Bank   (Neb.)   90  N.  W.  239. 

75.  The  fact  that  the  mortgagee  ratified 
one  contract  of  agistment  with  the  mort- 
gagor will  not  bind  him  to  other  agreements 
between  the  mortgagor  and  agister — ^Hard- 
ing V.  Kelso,  91  Mo.  App.  607. 

76.  In  re  -^Mlliams,  120  Fed.  542. 


522 


CHATTEL   MORTGAGES. 


§10 


note  by  the  purchaser  of  a  note,  secured  by  mortgage  on  stock,  will  not  affect  the 
lien  of  the  mortgage  on  such  stock,"  The  Alabama  agricultural  lien  law,  making 
the  lien  paramount,  protects  one  becoming  a  landlord  by  reason  of  tenant's  default 
under  a  contract  of  purchase,  as  against  one  becoming  a  mortgagee  before  the  de- 
fault, where  the  mortgagee  was  not  an  innocent  purchaser."  The  rule  in  Illinois, 
giving  purchase-money  mortgages  priority,  only  applies  to  purchase-money  mort- 
gages on  realty,^®  yet  a  mortgagee  in  that  state  is  charged  with  notice  of  the  terms 
on  which  the  purchase  of  the  mortgaged  property  was  made,  and  of  all  facts  of 
which  he  is  put  on  inquiry.^"  The  right  to  rescind  a  sale  is  superior  to  a  mortgage 
to  secure  a  debt  contracted  before  sale  sought  to  be  rescinded,®^  but  is  inferior  to 
right  of  mortgage  where  debt  created  after  sale,^-  and  party  seeking  rescission  has 
burden  of  proof  that  mortgagee  knew  of  the  buyer's  fraud  or  that  the  debt  was 
created  before  the  sale.®^  Equity  has  jurisdiction  of  an  action  to  decree  as  to  prior- 
ity between  chattel  mortgages,  the  remedy  at  law  being  inadequate."  In  Missouri 
it  is  held  that  the  renewal  of  a  loan  and  the  execution  of  a  new  mortgage  to  se- 
cure the  same  will  not  affect  the  priority  of  the  original  mortgage.^"  A  waiver  of 
a  mortgage  lien  need  not  be  in  writing.®*  Where  a  waiver  of  a  lien  amounts  to 
an  estoppel  in  favor  of  subsequent  purchasers,  it  is  no  objection  that  there  was  no 
consideration  therefor.®^  A  mortgagee  does  not  waive  his  mortgage  lien  by  attach- 
ing the  property .^^  A  waiver  of  a  mortgage  lien  by  the  mortgagee  may  be  shown 
in  an  action  by  the  mortgagee  for  the  recovery  of  mortgaged  property  bought  by 
defendant  from  the  mortgagor.*® 

§  10.  Disposal  of  the  property  hy  mortgagor. — ^While  the  general  property  in 
chattels  remains  in  the  mortgagor,  he  may  sell  the  same  subject  to  the  mortgage,"" 
and  the  purchaser  is  estopped  to  question  its  validity.®^  The  sale  of  the  mortgaged 
property  by  consent  of  mortgagee  invests  purchaser  with  title  free  of  the  lien.*''  A 
mortgagee  cannot  recover  for  conversion  as  against  a  purchaser  of  the  mortgaged 
property,  where  both  instruments  are  void  under  the  bankruptcy  law  and  the  con- 
version was  merely  technical.®^  The  New  York  Penal  Code,  punishing  the  seller 
of  mortgaged  property,  requires  proof  of  an  intent  to  defraud  thereby.®*  The 
Mississippi  Code,  making  the  offense  consist  of  the  sale  without  consent  of  the  mort- 
gagee and  without  discharging  incumbrances  immediately,  is  not  violated  by  a  sale 
without  paying  the  debt,  where  the  debt  is  not  due  at  the  time  of  the  sale.®^  In  a 
prosecution  for  selling  mortgaged  property  and  representing  it  free  from  incum- 
brance, an  averment  that  the  seller  knew  that  a  certain  corporation  had  a  mort- 


77.  Mayers   v.    McNeese    (Tex.    Civ.    App.) 
71   S.  W.   68. 

78.  British   &  A.   Mortg.   Co.  v.  Cody,   135 
Ala.  622. 

79.  Clark  V.  Woodruff,  100  111.  App.  18. 

80.  Jones  V.  Glathart,  100  III.  App.  630. 

81.  82,  83.     George   D.   Mashburn   &   Co.   v. 
Dannenberg  Co.   (Ga.)   44  S.  E.  97. 

84.  Salmon    v.    Norris,    115   N.   Y.    St.    Rep. 
892. 

85.  Drovers'    Live    Stock   Commission    Co. 
V.  Wilson  County  Bank,  95  Mo.  App.   251. 

86.  Livingston    v.    Stevens     (Iowa)     94    N. 
W.   925. 

87.  Livingston  v.  Heck   (Iowa)    94  N.   W. 
1098. 

88. 


First  Nat.  Bank  v.  Johnson   (Neb.)   94 


N.  W.   837. 

89.  In  this  case  evidence  of  prior  and 
subsequent  transactions  between  mortgagee 
and  mortgagor  showed  that  mortgagor  was 
authorized  to  sell  property  and  account  to 
the  mortgagee  for  the  proceeds — Livingston 
V.    Stevens    flowa)    94  N.   "^'.    925. 


90.  Illinois  Trust  &  Sav.  Bank  v.  Alexan- 
der Stewart  Lumber  Co.  (Wis.)  94  N.  W. 
777. 

91.  In  re  Standard  Laundry  Co.  (C.  C.  A.) 
116  Fed.  476. 

92.  It  is  not  important  that  the  mort- 
gagor does  not  at  the  time  know  of  the  con- 
sent— Livingston  v.  Stevens  (Iowa)  9t  M  W. 
925. 

93.  Stanley  v.  Southwick  (Iowa)  94  N.  W. 
1120. 

94.  In  this  case  the  mortgage  authorized 
an  election  to  consider  the  debt  entirely 
due  on  a  removal  without  written  consent. 
There  was  a  removal  but  the  mortgagee 
with  knowledge  accepted  pajanent  in  install- 
ments. A  later  removal  of  the  goods  was 
made  to  another  state  and  when  requested 
to  make  further  payments,  the  mortgagor 
informed  the  mortgagee  of  his  location  and 
made  further  payments — ^People  r.  Staton, 
114  N.  T.  St.  Rep.  2. 

95.  State  v.  Sullivan,  80  Miss.  596. 


§12 


PAYMENT   AND    DISCHARGE. 


>23 


gage  on  the  property  is  sufficiently  explicit  to  admit  proof  of  such  mortgage.®®  It 
is  no  defense  that  the  prosecuting  witness  could  have  protected  himself  by  exam- 
ining the  records.®^ 

§  11.  Assignment  of  the  mortgage. — The  assignment  of  a  note  carries  with  it 
a  chattel  mortgage  executed  as  security  therefor.®*  A  mortgagee  transferring  part 
of  the  mortgage  debt  is  not  thereby  made  a  trustee  for  his  assignee,  except  as  to 
collections  over  his  debt,  but  is  bound  to  act  in  good  faith  to  his  assignee/®  and  is 
guilty  of  a  conversion  where  he  collects  only  a  portion  of  his  debt  and  permits  an 
impairment  of  the  property.^  The  assignee  is  estopped  to  impeach  the  mortgage 
debt.^  The  assignee  of  a  chattel  mortgage  may  maintain  an  action  for  the  mort- 
gaged property.^  The  assignee  of  a  portion  of  a  mortgage  debt  may,  in  a  bill  to 
compel  an  accounting,  enforce  a  claim  as  to  a  second  mortgage  acquired  by  him.* 
On  the  question  of  title  to  a  mortgage,  bought  from  a  corporation,  the  minutes  of 
the  directors'  meeting  reciting  sale  by  the  directors  in  connection  with  the  by-laws 
of  the  corporation,  vesting  this  power  in  the  directors,  is  admissible.''  Generally, 
the  assignee  of  a  mortgage  on  goods  procured  under  fraudulent  sale  stands  in  the 
position  of  the  mortgagee  as  to  the  seller." 

§  12.  Payment  and  discharge. — Payment  of  a  mortgage  indebtedness  to  the 
original  mortgagee  before  due  is  at  the  peril  of  the  party  making  the  payment," 
particularly  where  the  mortgage  does  not  expressly  or  by  implication  aiithorize  the 
mortgagee  to  receive  payment  after  transfer  of  the  security.*  Payments  by  mort- 
gagor will  ordinarily  amount  to  payment  satisfying  the  mortgage  and  not  a  sale  of 
the  mortgage.®  Where  mortgagee  takes  the  goods  under  the  mortgage  and  retains 
them  instead  of  selling  them,  the  debt  is  paid  to  the  extent  of  the  value  of  the 
goods  taken.^®  A  mortgagee  paying  off  a  prior  mortgage  may  require  the  assign- 
ment of  such  mortgage  to  him.^^  The  vendee  of  a  mortgagor  required  to  pay  off 
the  mortgage  is  entitled  to  be  subrogated  to  the  rights  of  the  mortgagee  in  any 
other  security  he  may  have  for  the  payment  of  the  mortgage  debt."  He  may 
compel  application  of  payments  on  the  mortgage  without  reference  to  any  agree- 
ment between  mortgagor  and  mortgagee  to  which  he  is  not  a  party.*'  Recitals  in 
the  mortgage  as  to  order  of  payment  will  control.** 

In  states  imposing  a  penalty  for  failure  to  satisfy  of  record,  a  mortgagee  can- 
not assign  the  mortgage  after  it  has  been  paid  so  as  to  avoid  the  penalty.*^  Notice 
to  a  corporation  and  its  president  to  have  all  mortgages  paid  by  the  mortgagee  sat- 
isfied of  record  is  sufficient.*'  In  an  action  therefor,  a  plea  that  defendant  did 
not  own  the  mortgage  is  insufficient,  without  alleging  a  transfer  prior  to  its  pay- 
ment.*^    A  recovery  may  not  be  had  where  there  has  been  merely  a  tender  of  pay- 


96,  97.     Keyes  v.  People,  100  111.  App.  163. 

98.  Swift  V.  Bank  of  Washington  (C.  C. 
A.)  114  Fed.  643;  Penney  v.  Miller  (Ala.)  S3 
So.    668. 

99,  1,  2.     Penney  v.  Miller  (Ala.)  33  So.  668. 

3.  Clem  V.  Wise,  133  Ala.   403. 

4.  Penney  v.  Miller   (Ala.)   33  So.  668. 

5.  Clem  V.  Wise,  133  Ala.   403. 

6.  George  D.  Mashburn  &  Co.  v.  Dannen- 
herg  Co.   (Ga.)   44  S.  E.  97. 

7.  Swift  V.  Bank  of  Washington  (C.  C.  A.) 
114  Fed.   643. 

8.  City  Nat.  Bank  v.  Goodloe-McClelland 
Commission  Co.,  93  Mo.  App.  123.  Payment 
is  at  his  risk  though  the  mortgage  provides 
that  when  the  mortgaged  property  is  ready 
for  market  it  should  be  consigned  to  mort- 
gagee and  the  proceeds  applied  to  the  debt — 
Swift  V.  Bank  of  Washington  (C.  C.  A.)  114 
Fed.  643. 


9.  A  purchase  of  notes  and  not  a  pay- 
ment is  shown,  w^here  the  person  claiming 
to  purchase  gave  his  check  payable  to  bear- 
er and  intrusted  it  to  the  mortgagor  for  de- 
livery to  the  custodian,  the  purchaser  testi- 
fying positively  that  he  bought  the  notes — 
Powers  V.  McKnight  (Tex.  Civ.  App.)  73  S. 
W.  549. 

10.  M.  Groh's  Sons  v.  Feldman,  40  Misc. 
(N.  T.)   303;  Babcock  v.  Wells.   25  R.  I.  23. 

11.  Williams  Bros.  Co.  v.  Hanmer  (Mich.) 
94  N.   W.   176. 

13,  13.  Illinois  Trust  &  Sav.  Bank  v.  Alex- 
ander Stewart  Lumber  Co.  (Wis.)  94  N.  W. 
777.  A  release  of  a  mortgage  on  considera- 
tion that  the  proceeds  of  sale  be  applied  on 
the  debt  may  be  enforced — California  Wine- 
Makers'  Corp.  V.   Sciaronl    (Cal.)    72  Pac.    990. 

14,  Rice  V.  Davis   (Mo.  App.)   74  S.  W.  431. 

15,  16,  17.  Dothan  Guano  Co.  v.  Ward,  132 
Ala.  380. 


^24  CHATTEL  MORTGAGES.  §    13 

ment  and  the  amoimt  due  is  brought  into  court  with  the  suit."  The  mortgage  is 
admissible,  though  it  describes  the  note  as  due  at  an  impossible  date  by  reason  of 
failure  to  fill  a  blank."  The  construction  of  the  statute  may  not  be  submitted  to 
the  jury.^° 

An  erroneous  satisfaction  of  a  mortgage  may  be  canceled.^i  f^  purchaser  of 
mortgaged  property,  obtaining  a  release  from  the  mortgagee  on  the  property  bought, 
is  protected  against  liens  of  the  mortgagee  on  the  remainder  of  the  mortgaged  prop- 

§  13.  Redemption. — A  mortgagor  is  not  excused  from  making  a  tender  of  the 
amount  necessary  to  redeem  by  the  fact  that  the  property  has  been  attached."  A 
tender  conditional  on  the  property  being  returned  to  the  place  from  which  it  was 
taken  is  insufficient.^* 

§  14.  Foreclosure. — Jurisdiction  of  equity  to  adjudicate  as  to  the  rights  of 
parties  to  a  chattel  mortgage  is  not  defeated  by  a  stipulation  for  foreclosure  by  ad- 
vertisement.^'' In  Oklahoma  a  mortgage  may  be  foreclosed  by  sale  of  property  in 
the  manner  prescribed  by  the  mortgage  or  by  proceedings  under  the  civil  code,^^  and 
probate  courts  have  jurisdiction  where  the  debt  is  within  the  jurisdictional 
amount."  A  federal  court  is  not  deprived  of  jurisdiction  to  foreclose  because  the 
mortgagee  could  take  possession  and  sell  under  the  state  statute.'^*  A  receiver  may 
be  appointed.^^  A  creditor  may  maintain  a  suit  to  foreclose  in  his  own  name, 
though  the  mortgage  is  taken  by  a  third  person  named  as  a  trustee  of  the  creditor.^*' 
A  jud^pnent  for  the  debt  or  for  the  value  of  property  cannot  be  entered  against  one 
made  a  party  to  the  foreclosure  action  by  reason  of  his  being  in  joint  possession  of 
the  propert}^^^  nor  will  it  be  granted  where  the  property  is  destroyed  or  so  changed 
as  to  be  impossible  of  identification.^^  The  Iowa  Code  allows  a  decree  in  a  chattel 
mortgage  foreclosure  to  direct  the  issuance  of  special  executions  to  different  coun- 
ties,*^ and  such  decree  cannot  be  collaterally  attacked,  though  the  mortgage  pro- 
vides for  its  sale  in  the  home  county.**  An  appellate  court  will  reverse  a  judg- 
ment in  an  action  of  foreclosure,  where  it  is  clearly  apparent  that  the  judgment  is 
for  an  insufficient  amount.*"*  A  mortgagee  selling  mortgaged  property  must  show 
that  conditions  have  been  broken  so  as  to  warrant  the  sale,*^  and  the  question  de- 
pends upon  the  conditions  and  their  performance  by  the  mortgagor  and  not  on 
facts  occurring  at  the  execution  of  the  mortgage.*'^  A  mortgagee  in  possession  who 
sells  without  special  compliance  with  the  statute  must  account  to  subsequent  lien 


18.  Hamaker  v.  Bynum  (Ala.)  34  So.  405. 
A  purchaser  of  mortgaged  property  from  the 
mortgagor  whose  mortgage  secured  a  non- 
negotiable  note  making  payment  to  the  orig- 
inal payee  may  make  the  same  defense 
against  the  transferee  of  the  mortgage  that 
he  could  have  made  against  the  mortgagee 
— City  Nat.  Bank  v.  Gunter  "Bros.  (Kan.)  72 
Pac.   842. 

19.  Long  Bros.  v.  Jennings  (Ala.)  33  So. 
857. 

20.  Dothan  Guano  Co.  v.  Ward,  132  Ala. 
380. 

21.  Frost  V.  George,  181  Mass.  271.  One 
taking  mortgaged  property  subject  to  mort- 
gage, and  marked  paid  on  the  record  by 
mistake,  and  who  has  paid  nothing  for  the 
mortgage,  may  not  testify  as  to  statements 
of  the  vendor  that  the  mortgage  was  paid, 
it  not  being  shown  that  such  purchaser  re- 
lied on  such  statements — Id. 

22.  Drumm-Flato  Commission  Co.  v.  Bar- 
nard (Kan.)   72  Pac.  257. 

28.     Marsden  v.  Walsh   (R.  L)    52  Atl.    684. 


24.  Gen.  L.  c.  207,  §  13 — Marsden  v.  "^''alsh 
(R.  I.)    52  Atl.   684. 

25.  Meeker  v.  Waldron  (Neb.)  90  N.  W. 
755. 

26.  Pettee  v.  John  Deere  Plow  Co.,  11 
Okl.   467,   68   Pac.  735. 

27.  Stahl  V.  Wade,  11  Okl.  483,  69  Pac.  301. 

28.  H.  B.  Claflin  Co.  v.  Furtick,  119  Fed. 
429. 

29.  H.  B.  Claflin  Co.  v.  Furtick,  119  Fed. 
429;  Haggard  v.  SangUn  (Wash.)  71  Pac. 
711;  Tuttle  v.  Blow   (Mo.)   75  S.  W.  617. 

30.  H.  B.  Claflin  Co.  v.  Furtick,  119  Fed. 
429. 

31.  McLaln  v.  McCoUum  (Tex.  Civ.  App.) 
72  S.  W.  1027. 

32.  Flanagan  Bank  v,  Graham,  42  Or.  403, 
71  Pac.  137,  790. 

33.  Code.  §§  3772,  3956 — Ring  v.  Nelson 
(Iowa)   94  N.  W.  1095. 

34.  King  V.  Nelson   (Iowa)    94  N.  W.  1095. 

35.  Marchand  v.  Ronaghan  (Idaho)  73 
Pac.  731. 

36.  37.  Davis  V.  Bowers  Granite  Co.  (Vt.) 
54  Atl.  1084. 


§16 


REMEDIES. 


525 


holders  for  its  value.'*  Proof  that  notices  were  posted  at  or  near  certain  resi- 
dences is  too  indefinite  to  satisfy  a  requirement  that  notices  be  posted  at  public 
places.^'  A  liquor  license  may  not  be  sold  without  the  consent  of  the  city  to  a 
transfer  of  the  license.*"  In  Texas  the  mortgagor  of  exempt  and  non-exempt 
property  may  require  the  sale  of  non-exempt  property  first,  and  have  its  proceeds 
applied."  Attorney's  fees  are  properly  refused  where  an  amount  nearly  equal  to 
the  amount  due  was  tendered,  and  other  proceedings  were  with  reference  to  another 
claim  in  which  the  mortgagee  was  unsuccessful.*^  The  report  of  the  sale  to  be 
delivered  to  mortgagor  should  include  an  itemized  statement  of  the  necessary  and 
reasonable  expenses  for  taking,  keeping  and  selling  the  property.*'  A  failure  to 
comply  with  the  South  Dakota  act  making  it  the  duty  of  the  mortgagee  to  file  a 
report  of  the  sale  in  the  office  of  the  register  of  deeds  invalidates  the  sale.**  A 
mortgagor  fully  apprised  of  the  terms  of  the  sale  and  the  items  of  expenses  may 
not  complain  of  a  failure  to  serve  notice.*' 

A  good  faith  purchaser  at  foreclosure  sale  takes  without  notice  of  mortgagor's 
fraud  in  obtaining  the  goods.*®  The  purchaser  of  property  at  a  defective  fore- 
closure sale  takes  the  interest  of  the  mortgagee  in  the  property,*'  and  is  liable  to 
the  mortgagor  only  for  the  excess  in  the  value  of  the  property  over  the  indebted- 
ness.** No  title  is  acquired  by  a  purchaser  with  knowledge  of  facts  invalidating 
the  sale  as  against  a  creditor.*® 

§  15.  Remedies  as  between  the  parties. — Mortgagor  may  recover  the  value 
of  his  property  less  the  amount  of  the  mortgage  debt,  where  the  mortgagee  removes 
the  property  to  another  county  and  sells  without  first  filing  his  mortgage  in  such 
county.^"  Accounting  for  proceeds  may  be  had.''*  An  equitable  claim  to  proceeds 
deposited  in  bank  is  waived  where,  pending  the  action,  mortgagee  sues  on  mortgage 
notes  and  garnishes  the  money  so  deposited  as  the  property  of  the  mortgagor.'^  A 
mortgage  collateral  to  a  contract  for  the  sale  of  a  crop  to  secure  advances  does  not 
give  purchaser  a  lien  for  damages  for  seller's  breach  of  the  contract  of  sale."'  In 
replevin  by  mortgagor  under  a  mortgage  allowing  a  mortgagee  to  take  possession 
on  sale  of  mortgaged  property,  or  attempts  to  sell  the  same  without  the  permission 
of  the  mortgagee,  defendant  has  the  burden  of  showing  a  sale  or  attempt  to  sell 
without  consent."* 

§  16.  Remedies  against  third  persons. — The  assumption  of  dominion  over 
mortgaged  property  by  one  having  knowledge  of  a  mortgage  thereon  amounts  to  a 
conversion.""  A  mortgagee  having  right  of  possession  may  recover  for  injuries  to 
the  mortgaged  property  by  a  third  person."*  and  a  description  of  the  property,  suf- 


38.  Dempster    Mill    Mfgr.    Co.    v.    "Wright 
(Neb.)   95  N.  W.  806. 

39.  Powell  V.  Hardy  (Minn.)  94  N.  W.  682. 

40.  Christian   Peig-enspan  v.  Mulligan   (N. 
J.  Law)  53  Atl.  1124. 

41.  Baughn  v.  Allen    (Tex.   Civ.   App.)    73 
S.  W.  1063. 

42.  Lillenthal  v.  McCormIck  (C.  C.  A.)  117 
Fed.  89. 

43.  Geo.   J.    Stadler  Brg.   Co.   v.   Weadley, 
99  111.  App.  161. 

44.  Edmonds  v.  Riley,  15  S.  D.  470. 

45.  Starr  &  C.  Ann.  St.  1896,  c.  95,  par.  27 
— Marvel  v.  McKInzey,  105  111.  App.  165. 

46.  George  D.  Mashburn  &  Co.  v.  Dannen- 
berg  Co.   (Ga.)  44  S.  B.  97. 

47.  Powell    V.    Hardy    (Minn.)     94    N.    W. 
682. 

48.  Berg  v.  Olson  (Minn.)  93  N.  "W.  809. 

49.  Stuart  v.  Mitchum,  136  Ala.   546. 


60.  McCormIck  Harvesting  Mach.  Co.  v. 
Preltauer  (Neb.)  91  N.  "W.  499. 

81.  Averments  of  a  transfer  of  part  of 
the  notes  secured  by  a  mortgage  in  consid- 
eration of  complainant's  furnishing  money  to 
discharge  a  prior  Incumbrance  will  not  Im- 
ply that  the  defendant  thereby  became 
bound  to  account  for  the  specific  proceeds  in- 
cluded In  the  property — Penney  v.  Miller 
(Ala.)   33  So.  668. 

52.  Young  V.  Bank  of  Princeton,  97  Mo. 
App.  576. 

53.  Lillenthal  v.  McCormIck  (C.  C.  A.)  117 
Fed.  89. 

64.  Matthews  v.  Granger,  196  111.  164. 
Defendant  pleading  sale  of  products  In  vio- 
lation of  mortgage,  Is  restricted  to  such 
averment  and  may  not  show  a  mortgage  of 
other  property  covered  by  the  mortgage — Id. 

55.  Woods  V.  Rose,  135  Ala.   297. 

56.  O'Brien  v.  Miller,  117  Fed.  1000. 


526 


CITIZENS— CIVIL  ARREST. 


ficient  as  between  the  parties,  is  sufficient  as  between  the  mortgagee  and  trespasser.*' 
Failure  of  a  mortgagee  to  intervene  in  an  action  against  a  third  person  for  conver- 
sion of  chattels  will  not  deprive  the  mortgagee  of  his  lien  as  against  the  party  con- 
verting the  chattels."  Mortgagees  holding  under  different  mortgages  may  join  in 
an  action  against  a  sheriff  for  conversion  of  the  goods  withoiit  regard  to  the  fact 
that  their  mortgages  are  of  varying  priority/'  or  that  one  of  the  mortgages  was 
without  consideration.^"  An  action  for  conversion  cannot  be  maintained  by  the 
mortgagee  against  a  third  person  before  the  law  day  of  the  mortgage,®^  and  a  mort- 
gagee must  show  that  it  occurred  after  his  right  to  take  possession  had  accrued.®^ 
Under  a  mortgage  covering  certain  crops  raised  during  a  given  year  in  specified 
county,  mortgagee  must  show  that  crop  was  raised  in  the  county  during  the  year 
mentioned.^'  A  mortgagee  in  replevin  must  recover  on  the  strength  of  the  title 
of  the  mortgagor,  if  at  all,  where  title  is  denied.^*  In  an  action  for  conversion, 
evidence  to  show  title  in  a  third  person  is  admissible  to  defeat  the  action.^^  In 
replevin  of  mortgaged  property,  the  mortgage  itself  and  evidence  of  plaintiff  that 
he  had  a  mortgage  on  the  property  in  controversy,  will  sustain  a  verdict  that  he 
had  a  lien  on  such  property.*' 

CITIZENS.6T 

Citizenship  may  be  state  or  federal,  the  former  of  course  necessitating  the 
latter.®*  A  more  or  less  extended  meaning  is  that  given  to  jurisdictional  citizen- 
ship.®' An  inmate  of  a  national  soldiers'  home  may  have  a  voting  state  citizen- 
ship.''" Eesidence  is  not  equivalent  to  citizenship.''^  Citizenship,  when  not  orig- 
inal, may  be  acquired  by  naturalization,'-  or  by  allotment,  if  a  tribal  Indian,'^  or 
by  marriage,'*  or  by  adoptive  force  of  a  treaty  of  accession.  A  Porto  Eican  is  not 
an  adopted  citizen."^  Since  the  French  and  Spanish  treaties  of  1803  and  1819 
left  citizenship  of  inhabitants  unchanged,  a  Spanish  born  child,  within  what  is 
now  New  Mexico,  could  not  become  an  adoptive  citizen  except  as  provided  by  the 
treaty  of  Guadalupe  Hidalgo.''®  Expatriation  results  from  marriage  of  an  Amer- 
ican woman  to  a  foreigner.''''  The  burden  of  proving  a  claim  of  citizenship  is 
supported  by  a  mere  claim,  after  which  it  shifts.'* 


CIVIL  ARREST.79 

and    Propriety;     Procedure;     Order   and 
Supersedeas)  Ball  or  Discharge. 


sion 
Writ. 
§  4. 


S  1.     Privilege  from  Arrest. 

§  2.     Arrest  on  Mesne  Process.^Wiien  Al 

lowable;  Procedure;  Bond;  Order  and  Writ. 
§  3.     Execution    Against    tlie    Body. — Occa 

§  1.     Privilege  from  arrest. — A  citizen  of  another  state  cannot  be  arrested 
while  attending  as  a  witness.*" 


57.  O'Brien  v.  Miller,  117  Fed.  1000.  A 
complaint  is  sufficient  under  tlie  Connecticut 
law  which  states  that  a  demand  for  posses- 
sion had  been  made  more  than  two  months 
before  the  trespass  complained  of  and  it  is 
not  necessary  to  give  the  date — Id. 

58.  Scott  V.  Cox  (Tex.  Civ.  App.)  70  S.  W. 
802. 

59.  60.  Trompen  v.  Yates  (Neb.)  92  N.  W. 
647. 

61,  62.  Johnson  v.  Wilson  (Ala.)  34  So. 
392. 

63.  Geo.  ii.  Truss  &  Co.  v.  Byers  (Ala.) 
34  So.  616. 

64.  Sweeney  v.  Rejto  (Neb.)   95  N.  W.  669. 
66.     Reynolds    v.     Fitzpatrick     (Mont.)     72 

Pac.  610;  Beyer  v   Fields,  134  Ala.  236. 

66.  Cathey  v.  Bowen.  70  Ark.  348. 

67.  Compare  related  matters  In  titles 
Aliens,   Domicile. 

68.  Situs  of  state  citizenship  and  resi- 
dence qualifications  for  election  purposes,  see 
Elections. 


69.  See    Jurisdiction,    Removal    of    Causes. 

70.  Such  home  is  not  an  "asylum" — Cory 
V.  Spencer  (Kan.)  73  Pac.  920. 

71.  And  it  cannot  be  so  pleaded — Gale  v. 
Southern  B.  &  L.  Ass'n,  117  Fed.  732. 

72.  See  Aliens,  ante,   p.   70. 

73.  In  re  Celestine,  114  Fed.  551. 

74.  Moore  v.  Ruckgaher  (C.  C.  A.)  114 
Fed.    1020. 

75.  In  re  Gonzalez,  118  Fed.  941. 

76.  De  Baca  v.  United  States,  37  Ct.  CI. 
482. 

77.  Moore  v.  Ruckgaher  (C.  C.  A.)  114 
Fed.    1020. 

78.  Evidence  held  insufficient  to  show 
Illinois  citizenship  of  one  who  claimed  to 
reside  in  Indiana  and  yet  had  an  office  and 
a  room  in  Chicago — Adams  v.  Shirk  (C.  C. 
A.)    117  Fed.  801. 

79.  Inhibition  of  imprisonment  for  debt, 
see  Constitutional  Law. 

80.  He  was  entitled  to  discharg^e  under 
Pub.   St.  c.   221.  i  10  or  §  12.  though  he  g.-.ve 


§2 


ARREST  ON  MESNE  PROCESS. 


527 


§  2.  Arrest  on  mesne  process.  When  allowahle.^^ — Defendant  in  a  civil  ac- 
tion in  the  municipal  court  of  New  York  may  be  arrested  on  proof  that  he  has 
disposed  of  his  property  with  intent  to  defraud  creditors.^^  It  must  appear  when 
application  is  grounded  on  refusal  to  pay  that  the  debtor  had  means  sufficient  to 
pay  but  refused.*^  A  principal  cannot  have  his  agent  arrested  for  fraud  directed 
against  a  third  person  and  not  against  the  principal.®*  An  agent  arrested  in  a  pro- 
ceeding against  him  for  failure  to  account  may  show  that  he  had  not  appropriated 
the  principal's  property  to  his  own  use  but  that  its  loss  resulted  from  other  condi- 
tions; if  his  contract  does  not  prevent  him  from  selling  goods  on  credit,  he  can- 
not be  arrested  for  bad  sales  or  failure  in  collection,  no  misappropriation  or  em- 
bezzlement being  shown,  and  in  such  case  the  order  of  arrest  is  properly  vacated 
and  civil  judgment  entered  for  the  amount.®**  Officers  of  a  defendant  corporation 
not  parties  cannot  be  committed  by  the  sheriff  in  trover  when  bail  may  be  re- 
quired.®" 

A  law  authorizing  imprisonment  to  enforce  a  license  tax  is  not  unconstitu- 
tional.®'' An  award  of  alimony  unaccrued  is  not  a  "debt."®®  Whenever  an  action 
is  to  recover  damages  for  a  wrong  inflicted  on  plaintiff,  malice  is  the  gist  of  the 
action  so  as  to  warrant  issue  of  a  capias  ad  satisfaciendum.®®  The  constitutional 
provision  against  imprisonment  for  debt  unless  in  case  of  fraud  excludes  the  right 
to  arrest,  where  defendant  was  guilty  of  fraud  in  contracting  the  debt  and  in  re- 
ceiving a  transfer  of  property  from  an  insolvent,  but  action  was  not  on  the  debt 
but  to  assail  the  transfer  in  equity.®"  An  execution  against  the  person  will  issue 
on  a  judgment  rendered  in  favor  of  an  administratrix  for  wrongful  death  of  her 
intestate,  that  being  an  action  to  recover  for  injuries  to  the  property  rights  of  the 
beneficiaries.®^  In  an  action  for  conversion  of  proceeds  of  a  sale  of  property  an 
answer  admitting  that  the  property  was  placed  with  defendant  for  sale  on  plain- 
tiff's account  and  tendering  the  proceeds  less  commission  claimed  will  not  change 
the  action  to  one  for  money  had  and  received  so  as  to  preclude  execution  against 
the  person.®^ 

Procedure  to  obtain  order  of  arrest.^^ — An  order  for  arrest  given  on  two 
causes  of  action  fails  where  the  right  to  the  order  fails  as  to  one  of  them.®*  A 
complaint  is  necessary  in  New  York  to  an  order  of  arrest  in  divorce.®"^  That  the 
summons  shows  an  action  for  absolute  divorce  and  the  affidavit  demands  alimony 
is  insufficient  proof  on  which  to  issue  an  order  of  arrest.®'     An  exemplified  or 


ball    Immediately    on    arrest — Dickinson    V. 
Farwell,  71  N.  H.  213. 

81.  Sufficiency  of  showing  of  fraud  for 
Issuance  of  warrant  under  fraudulent  debt- 
or's act — William  Barle  Dry  Goods  Co.  v. 
easier  (Mich.)   90  N.  W.  670. 

82.  Laws  1902,  p.  1508.  c.  580 — Auerbach 
V.  Rogin,  83  N.  T.  Supp.  154. 

83.  Gen.  St.  §  1347 — ^Atwater  v.  Slepcow, 
74  Conn.  761.  The  gist  of  the  action  must  be 
fraud  In  respect  to  the  debt — Id. 

84.  Fraudulent  extension  of  credit — Hol- 
land Coilee  Co.  v.  Johnson,  38  Misc.  (N.  Y.) 
187. 

85.  Arrest  under  Code,  §  291  (2) — South- 
ern Grocery  Co.  v.  Davis  (N.  C.)  43  S.  E.  591. 

86.  Hall  &  B.  "Woodworking  Mach.  Co.  v. 
Barnes,  115  Ga.   945. 

87.  Rosenbloom  v.  State  (Neb.)  89  N.  W. 
1053. 

88.  In  re  Cave.  26  Wash.  213,  66  Pac.  425. 
But  commitment  for  contempt  may  be  made 
(Rev.  St.  §  5640) — State  v.  Cook,  66  Ohio  St. 
666. 

89.  Penoyer  v.  People,  105  111.  App.  481. 
00.     Const,  art.  1,  §  16,  as  applied  to  Code 


Civ.    Proc.   !   479 — Cooper  v.   Nolan,    138    Cal. 
248.  71   Pac.   179. 

91.  Code  Civ.  Proc.  §§  1487,  3343 — People 
V.  Gill,  83  N.  T.  Supp.  135. 

92.  Holmes  v.  Leighton,  83  N.  T.  Supp. 
164. 

93.  Sufficiency  of  affidavits  for  capias  ad 
respondendum  on  ground  that  certain  goods 
were  obtained  by  false  pretenses  by  defend- 
ant with  intention  not  to  pay  for  them;  of 
proof  of  defendant's  non-residence  to  sus- 
tain an  order  to  hold  him  to  bail  in  action 
for  conversion  (Kryn  v.  Kahn  [N.  J.  Sup.]  54 
Atl.  870);  of  evidence  to  show  waiver  of 
provision  in  recognizance  for  appearance  of 
debtor  at  time  stated  for  examination  be- 
fore magistrate — Spelrs  Pish  Co.  v.  Bobbins. 
182  Mass.   128. 

94.  Holland  Coffee  Co.  v.  Johnson,  38 
Misc.   (N.  Y.)   187. 

95.  An  affidavit  alone  is  insufficient  (Code 
Civ.  Proc.  §  550) — Lichstrahl  v.  Lichstrahl,  38 
Misc.   (N.  Y.)   331. 

96.  Code  Civ.  Proc.  §  550 — Lichstrahl  v. 
Lichstrahl,  38  Misc.  (N.  Y.)   331. 


528 


CIVIL  ARREST. 


§   S 


sworn  copy  of  the  record  is  necessary  to  prove  that  accrued  alimony  is  due  plaintiff 
by  a  decree  of  the  court  so  as  to  issue  a  writ  of  arrest  against  defendant;  and  a 
statement  by  defendant  to  plaintiff  as  shown  by  her  affidavit  that  he  was  about  to 
leave  the  state,  taking  his  property  with  him,  does  not  show  an  intent  to  defraud 
creditors  authorizing  arrest.®^  Direct  proof  of  payments  to  an  agent,  or  excuse 
for  failure  of  such  proof,  is  necessary  to  an  affidavit  for  an  order  for  his  arrest 
for  failure  to  account  for  moneys  collected.** 

Bond;  undertaking;  security. — A  bond  to  secure  an  order  for  arrest  condi- 
tioned to  pay  all  damages  which  defendants  or  either  of  them  may  sustain  may  be 
enforced  by  defendants  severally;  his  recovery  on  the  bond  could  not  be  defeated 
on  the  ground  that  it  would  leave  the  other  party  without  any  remedy;*®  and  on 
vacation  of  the  undertaking  one  defendant  imprisoned  under  the  order  may  sue 
without  joining  the  others  as  a  party  and  without  demand.  The  measure  of 
damages  on  the  undertaking  is  payment  for  time  and  expense  lost  and  nothing  for 
injury  to  the  person.^ 

The  order  and  writ  for  arrest. — In  civil  arrest,  a  warrant  is  absolutely  neces- 
sary.^ An  order  to  vacate  an  order  of  arrest  may  be  made  before  a  judge  in  the 
district  other  than  the  one  who  granted  the  order.'  Where  application  for  va<;a- 
tion  is  made  to  the  judge  who  granted  it,  notice  of  the  application  is  necessary  as 
the  judge  in  his  discretion  deems  proper.^  Omission  of  plaintiff's  attorney  to  in- 
dorse on  the  back  of  a  capias  ad  respondendum  the  name  of  the  county  of  service 
and  the  address  of  the  attorneys  issuing  the  writ  may  be  corrected  by  amendment, 
if  no  injury  results  thereby  to  defendant.  That  the  affidavits  and  order  for  a 
capias  ad  respondendum  were  not  filed  in  the  clerk's  office,  until  the  day  after  the 
issuance  of  the  writ  and  the  arrest,  is  not  ground  for  quashing  the  writ.' 

§  3.  Execution  against  the  body.  Occasion  and  propriety. — Malice  as  a  statu- 
tory ground  of  action  for  the  imprisonment  of  a  debtor  applies  to  wrongs  in- 
flicted with  evil  intent  and  under  improper  motives.*  The  right  to  arrest  may 
depend  on  whether  the  action  was  in  tort.  An  action  by  administratrix  to  recover 
for  wrongful  death  of  her  intestate,  is  an  action  to  recover  for  injuries  to  property 
rights  of  beneficiaries.''  In  an  action  for  conversion  of  the  proceeds  of  property 
sold,  an  answer  admitting  that  plaintiff's  assignor  placed  the  property  in  defend- 
ant's hands  to  be  sold  "on  her  account"  for  a  certain  amount  less  commissions,  did 
not  change  the  action  into  an  action  for  money  had  and  received.^  A  judgment 
debtor  sent  to  the  reformatory  of  another  county  is  not  a  resident  of  the  county 
so  that  an  execution  against  his  person  issued  to  that  county  during  his  confine- 
ment, and  returned  unsatisfied,  is  a  sufficient  ground  for  arrest.*  The  New  York 
statute  providing  that  a  defendant  discharged  from  arrest  for  failure  to  take  out 
an  execution  shall  not  be  arrested  on  execution  on  the  judgment,  does  not  apply  to 
municipal  courts.^"     Former  statutes  in  the  District  of  Columbia  permitted  arrest 


97.  Her  affidavit  of  award  of  alimony  is 
insufficient  (Practice  Act.  §  58  [2  Gen.  St.  p. 
2543]) — Innea  v.  Innes  (N.  J.  Sup.)  63  Atl. 
1041. 

98.  Holland  Coffee  Co.  v.  Johnson,  38  Misc. 
(N.  Y.)   187. 

99.  Krause  V.  Rutherford,  81  App.  Dlv. 
(N.  Y.)   341. 

1.  Krause  v.  Rutherford,  37  Misc.  (N.  Y.) 
382. 

2.  Park  v.  Taylor  (C.  C.  A.)  118  Fed.  34. 

3.  Wm.  Skinner  Mfff.  Co.  v.  Fagenson,  38 
Misc.   (N.  T.>   121. 

4.  Code  Civ    Proc.  §§  568,   769 — "Wm.  Skin- 


ner Mfg.   Co.   V.    Fagenson,    38   Misc.    (N.   Y.) 
121. 

5.  2  Gen.  St.  p.  2541,  §  46;  p.  2543,  §  58 — 
Kryn  v.  Kahn   (N.  J.  Sup.)   54  Atl.  870. 

6.  Kurd's  Rev.  St.  1899,  p.  966,  §  2 — Jern- 
berg  V.  Mix,  199  111.  254;  Penoyer  v.  People. 
105  111.  App.  481. 

7.  Code  Civ.  Proc.  §  1487,  construed  fn 
connection  with  §  549  and  Code  §  3343 — Peo- 
ple V.  Gill,  83  N.  Y.  Supp.  135. 

8.  Holmes  v.  Leighton,  83  N.  Y.  Supp.  164. 

9.  Code  Civ.  Proc.  §  1489 — American  Sure- 
ty Co.  v.  Cosgrove,  40  Misc.   (N.  T.)   262. 

10.  Code  Civil  Proc.  §  572 — Rogow  v. 
Clark,   40   Misc.    (N.    Y.)    208. 


§  4 


SUPERSEDEAS  OR  DISCHARGE. 


529 


for  fraud  in  conveying  real  as  well  as  personal  property  but  except  as  to  pending 
actions  they  have  been'repealed.^^ 

Procedure  to  obtain  writ. — Either  written  pleadings  or  an  indorsement  on  the 
summons  must  in  the  Municipal  Court  of  New  York  apprise  the  debtor  that  the 
action  is  one  in  which  he  is  liable  to  arrest.^^  Where  a  complaint  for  assault 
properly  verified  sets  out  facts  sufficient  for  cause  of  arrest  under  the  statute, 
execution  against  the  person  may  issue  after  execution  against  the  property  re- 
turned unsatisfied,  without  a  previous  affidavit  or  order  of  arrest.^* 

Plaintiff  in  an  action  to  foreclose  a  lien  on  personal  property  is  not  entitled  to 
execution  against  the  person,  where  no  order  of  arrest  has  been  issued.^*  An 
affidavit  for  a  capias  ad  satisfaciendum  made  by  the  treasurer  and  agent  of  a  cor- 
poration, who  is  the  plaintiff  in  the  suit  in  which  the  writ  is  issued  on  informa- 
tion and  belief,  is  sufficient.^"*  A  special  finding  of  malice  in  an  action  of  tort 
will  support  a  finding  of  malice  by  the  court  so  as  to  warrant  arrest  of  the  de- 
fendant.^' Where  the  general  verdict  against  one  imprisoned  under  a  capias  ad 
satisfaciendum  is  guilty  and  responds  to  all  the  counts,  the  burden  is  on  petitioner 
to  show  that  the  verdict  and  judgment  were  based  on  a  count  not  founded  on  mal- 
ice; and  he  is  not  estopped  by  the  judgment  from  showing  that  it  was  based  on  a 
count  in  which  malice  was  not  the  gist  of  the  action,  where  malice  appeared  in  only 
one  of  the  three  counts.^'' 

The  order  and  writ. — A  writ  of  execution  against  the  body  of  a  defendant  re- 
quiring the  officer  to  bring  him  before  the  justice  issuing  the  writ  at  the  time 
specified  must  be  strictly  followed.^* 

§  4.  Supersedeas  hail  or  discharge  from  arrest.  Mesne  process. — Plaintiff 
has  no  interest  in  money  deposited  with  an  officer  on  release  of  defendant  by  him, 
where  he  returned  on  the  capias  that  defendant  was  in  custody,  the  return  being 
conclusive  on  the  officer  and  the  parties,  unless  application  is  made  to  amend  or 
set  it  aside.^' 

Final  process.^^ — One  arrested  in  assumpsit  is  not  entitled  to  release  under 
the  Insolvent  Debtor's  act,  providing  for  release  when  malice  is  not  the  gist  of  the 
action,  where  the  declaration  shows  intentional  injury  or  wrong  to  plaintiff,  since 
malice  in  that  case  is  the  gist  of  the  action.^*  An  application  for  discharge  from 
arrest  must  be  granted  if  plaintiff  fails  to  take  out  execution  on  the  judgment 
before  the  expiration  of  24  hours  after  he  is  entitled  to  it,  but  the  failure  to  take 
out  execution  within  such  time  and  the  discharge  will  not  defeat  plaintiff's  right 
to  a  subsequent  issue  of  body  execution."  Where  it  appears  in  an  action  for 
breach  of  a  poor  debtor's  recognizance,  that  he  was  legally  arrested,  that  his  creditor 
was  a  non-resident,  that  the  attorney  for  the  latter  was  a  resident  of  the  county, 


11.  Rev.  St.  §§  794  and  795.  These  provi- 
sions were  repealed  by  Code,  §  1638.  repeal- 
ing Acts  of  General  Assembly  of  Maryland 
and  of  the  Legislative  Assembly  of  District 
of  Columbia — Costello  v.  Palmer,  20  App.  D. 
C.   210. 

12.  Judgment  cannot  contain  an  order  of 
arrest  unless  the  summons  was  properly  In- 
dorsed where  pleadings  were  oral — Munici- 
pal Court  Act.  §  39  (Laws  1902,  c.  580) — 
Auerbach  v.  Rogin,  83  N.  T.  Supp.  154. 

13.  Code  Civ.  Proc.  §§  260,  291 — Huntley  v. 
Hasty,  132  N.  C.  279. 

14.  L.  1902.  p.  1486,  c.  580,  and  Code  Civ. 
Proc.  §  1487 — Liederman  v,  Rovner,  115  N.  Y, 
St.  Rep.  606. 

15.  Capias  Issued  under  Rev.  St.  794,  795 
— Costello  v.  Palmer,  20  App.  D.  C.  210. 

Cur.    Law — 34. 


16.  Kurd's  Rev.  St.  1899,  p.  966,  5  2 — 
Jernberg  v.  Mix,  199  111.  254. 

17.  Jernberg  v.  Mix,   199  111.  254. 

18.  In  re  Jennison,  74  Vt.  40. 

19.  Loewenthal  v.  Wagner  (N.  J.  Sup.) 
52  Atl.  298. 

20.  SufRciency  of  showing  under  Pub.  St. 
c.  162,  §  32,  that  creditor  in  an  action  for 
breach  of  a  recognizance  by  a  poor  debtor 
w^as  a  non-resident  so  as  to  require  notice 
of  a  desire  to  take  the  poor  debtor's  oath 
to  be  served  on  his  agent  or  attorney — Grif- 
fin  v.   Betts,   182  Mass.   323. 

21.  Kurd's  Rev.  St.  c.  72,  §  2 — Penoyer  v 
People,  105  111.  App.  481. 

22.  Under  Municipal  Court  act  (L.  1902  p 
1511,  c.  580.  §  68;  L.  1902,  p.  1568.  c.  580,  8 
271) — Rogow  V.  Clark,   40  Misc.    (N.   Y.)    208. 


530 


CIVIL  RIGHTS. 


§   1 


but  no  notice  of  a  desire  to  take  the  poor  debtor's  oath  was  served  upon  such  at- 
torney as  required  by  statute,  a  judgment  for  the  creditor  on  the  undertaking  is 
authorized;  the  verdict  for  breach  of  his  recognizance  should  be  for  the  amount 
thereof  as  shown  by  the  amount  for  which  execution  should  issue,  to  be  determined 
in  the  action."  Statutes  providing  for  discharge  of  a  defendant  for  delay  in  issu- 
ing execution  against  the  person  on  the  judgment  under  certain  circumstance,  applies 
only  to  procure  discharge  from  arrest  on  mesne  process.^*  Denial  of  a  motion  to 
vacate  an  order  of  arrest  in  a  civil  action  for  insufficiency  of  the  papers  is  not  in 
conflict  with  a  decision  that  the  judgment  is  improper  in  providing  for  arrest  because 
of  insufficiency  of  the  pleadings  and  summons.^"* 

CIVIL  RIGHTS. 

§  1.  What  rights  are  civil. — ^By  the  term  "civil  rights"  is  meant  general  rights 
of  a  personal  nature  belonging  to  individuals  as  citizens.  The  term  is  most  gen- 
erally applied  to  the  rights  secured  by  the  tliirteenth  and  fourteenth  amendments 
to  the  United  States  constitution  and  the  statutes  pursuant  thereto  and  analogous 
state  legislation.^® 

§  2.  Violations  of  such  rights  and  prosecutions  thereon. — Places  of  public 
accommodation  embrace  a  bowling  alley  at  a  pleasure  resort,^^  and  a  bootblack 
stand  in  the  corridor  of  an  office  building,  in  which  discrimination  on  account  of 
race  is  unlawful.'^* 

Separation  of  races. — The  laws  requiring  separate  schools  for  colored^®  or 
Asiatic  children  do  not  violate  the  14th  amendment,  where  the  schools  offer  the 
same  advantages  as  other  public  schools.^"  The  constitution  is  not  violated  by  a 
state  law  requiring  street  railroads  to  provide  separate  accommodations  for  white 
and  colored  passengers,  where  the  accommodations  are  equal.^^ 

Composition  of  juries. — There  is  unlawful  discrimination  against  a  negro  on 
trial,  where  all  persons  of  his  own  race  are  excluded  solely  on  the  ground  of 
color.^^ 

Persons  liable  for  discrimination. — The  word  "person"  in  the  Ohio  Civil 
Rights  act  includes  a  corporation.^^ 

Removal  of  causes. — A  case  cannot  be  removed  to  the  federal  court  under  act 
authorizing  removal  of  criminal  prosecutions  against  persons  denied  civil  rights 
in  the  state  courts,  where  the  act  punishing  the  offense  does  not  discriminate  be- 
tween the  races  as  to  the  punishment.^* 


23.  Rev.  Laws,  c.  168,  §  66 — Griffin  v. 
Betts,   182  Mass.  323. 

24.  People  V.  Gin.  83  N.  T.  Supp.  135. 

25.  Suerbach  v.  Rogin,  83  N.  Y.  Supp.  154. 

26.  Cyc.   Law  Diet. 

27.  Johnson  v.  Humphrey  Pop  Corn  Co., 
24  Ohio  Circ.  R.  135. 

28.  Burks  V.  Bosso,  81  App.  Dlv.  (N.  T.) 
630. 

29.  Laws  1879,  p.  163,  c.  181 — Reynolds  v. 
Board  of  Education  (Kan.)  72  Pac.  274.  A 
constitutional  provision  that  white  and  col- 
ored races  should  be  taught  in  separate 
schools,  but  that  neither  shall  be  discrim- 
inated against,  is  violated  by  an  act  pro- 
viding that  if  there  shall  be  so  few  Of  ei- 
ther race  In  the  district  that  it  shall  be  re- 
garded inadvisable  to  organize  a  school  for 
that  race,  the  pro  rata  proportion  of  the 
school  fund  for  such  children  should  be  giv- 
en to  an  adjoining  district,  unless  there  are 
no  children  of  either  race  in  the  district  to 
be     discriminated     against     or     not     enough 


children  of  both  races  to  warrant  a  school 
for  each  (Pub.  Laws  1901,  c.  497,  §  8)  — 
Hooker  v.  Town  of  Greenville,  130  N.  C. 
472. 

30.  Wong  Him   v.   Callahan,    119   Fed.    381. 

31.  State  V.   Pearson   (La.)    34   So.   575. 

32.  Code,  §  1722,  making  payment  of  tax- 
es, good  moral  character  and  sufficient  Intel- 
ligence, qualification  for  jury  service — State 
V.  Peoples,  131  N.  C.  784.  Not  shov^'n  where 
only  a  small  percentage  of  the  voters  of  the 
county  were  negroes  and  only  a  few  of  these 
were  shown  to  be  qualified  and  the  jury 
commissioners  denied  discrimination — Mar- 
tin V.  State  (Tex.  Cr.  App.)  72  S.  W.  386; 
Hubbard  v.  State  (Tex.  Cr.  App.)  67  S.  W. 
413.  Evidence  held  sufficient  to  show  dis- 
crimination in  the  formation  of  a  jury  to  try 
a  negro  charged  with  crime — Smith  v.  State 
(Tex.  Cr.  App.)   69  S.  W.  151. 

33.  Johnson  v.  Humphrey  Pop  Corn  Co., 
24  Ohio  Clrc.  R.   135. 

34.  Rev.  St.  U.  S.  !  641 — People  v.  Bennett, 
113  Fed.  515. 


CLERKS   OF  COURT. 


531 


CLERKS   OP  COURT. 


§  1.     The    Office)    Indnctlon    Into    and    Re- 
moval Croui  Office;  General  Duties. 


§  2.     Fees  and  Compensation — In  General; 
United  States  Courts. 

8  8.     lilablllties  and  Breach  of  Bond. 

§  1.  The  office;  induction  into  and  removal  from  office;  general  duties.^^ — 
If  the  clerk  of  a  county  court  has  legal  authority  to  appoint  a  deputy,  and  neither 
his  oflBcial  term  nor  his  right  of  removal  is  limited,  the  latter  power  is  incident  to 
that  of  appointment  and  may  be  used  at  pleasure  without  notice  or  legal  liability; 
hence  a  contract  between  the  clerk  and  a  deputy,  providing  that  the  latter  should 
hold  office  at  a  certain  salary  during  the  entire  term  of  the  clerk,  is  against  public 
policy  and  no  action  will  lie  for  the  breach  thereof.^^  It  cannot  be  objected  that 
no  county  or  deputy  county  clerk  was  in  attendance  on  a  prosecution  at  time  of 
trial  where  one  who  had  previously  been  appointed  deputy  and  to  whom  a  com- 
mission had  been  issued  was  present  and  acted,  and  it  did  not  appear  that  the 
appointment  had  ever  been  revoked,  or  that  she  had  resigned,  though  she  had  not 
acted  for  a  year.^^  An  appeal  will  not  lie  from  an  order  of  the  judge  of  the  cir- 
cuit court  in  Wisconsin,  denying  a  petition  for  removal  of  the  clerk  for  malfea- 
sance.^^ 

It  is  his  duty  to  record  judgments,  orders  and  proceedings  of  the  court.^' 
His  receipt  for  money  paid  on  a  judgment  is  not  evidence  showing  that  the  creditor 
received  the  money.*"  The  certificate  of  the  clerk  under  the  court's  seal  shows 
prima  facie  that  it  is  a  court  of  record.*^  One  who  acts  as  deputy  clerk  of  the 
city  court  by  authority  of  the  clerk  of  that  court  may  legally  sign  processes  issuing 
therefrom.*^  The  clerk  of  the  United  States  circuit  court,  with  permission  of  the 
court,  may  receive  money  paid  into  court  by  a  private  party  in  a  pending  cause.'*^ 
Mandamus  will  lie  to  compel  a  clerk  to  perform  the  ministerial  duties  of  his 
office.'" 

§  2.  Fees  and  compensation.*^ — The  right  of  the  clerk  to  fees  on  all  fines, 
forfeitures  or  moneys  collected  for  the  state  does  not  apply  to  civil  actions  by  the 
state  to  recover  penalties,  such  fees  being  regulated  by  another  law.*^  Costs  will 
not  be  allowed  to  a  clerk  for  making  and  sending  up  a  transcript  in  which  he  failed 
to  incorporate  the  judgment.*^  Where  one  who  acted  both  as  circuit  court  clerk 
and  county  recorder  retains  sufficient  fees  on  a  severance  of  the  offices  to  com- 
pensate him  for  work  as  recorder,  but  afterward  collected  fees  for  services  as  clerk 


35.  Time  of  election  and  term  of  office  of 
clerks  of  courts  of  common  pleas  under  Rev. 
St.  §  1240,  and  Act  April  30,  1902 — State  v. 
Hall,  67  Ohio  St.  303.  Constitutionality  of 
Act  April  30,  1902,  amending  Rev.  St.  §  1240, 
providing  that  successors  of  clerks  of  com- 
mon pleas  whose  terms  expire  In  1903  shall 
be  elected  at  next  general  election  following 
the  amendment — Id.  Sufficiency  of  evidence 
to  show  that  a  county  had  less  than  a  cer- 
tain population  required  for  the  establish- 
ment of  the  office  of  clerk  of  the  district 
court — State  v.  Davis  (Neb.)  92  N.  W.  740. 

36.  Horstman  v.  Adamson  (Mo.  App.)  74 
S.  W.   398. 

37.  Hollar  v.  State  (Tex.  Cr.  App.)  73  S. 
W.    961. 

38.  Neither  petitioner  nor  the  county  can 
suffer  pecuniary  loss  from  the  order — In  re 
Aldrlch,  114  Wis.  308. 

39.  Boynton  v.  Crockett  (Okl.)  69  Pac. 
869. 

40.  Matusevltz  v.  Hughes,  26  Mont.  212, 
66  Pac.   939,   68  Pac.   467. 


41.  Civ.  Code,  §  3621 — Ford  v.  Nesmlth 
(Ga.)    43  S.  E.  483. 

42.  The  power  existed  while  Act  Dec.  10, 
1902,  was  In  force — Tietjen  v.  Merchants' 
Nat.  Bank  (Ga.)  43  S.  E.  730. 

43.  Rev.  St.  U.  S.  §  828,  construed  In  con- 
nection with  §§  798,  995,  9^6,  5504,  5505— 
Howard  v.  United  States,   184  U.  S.  676. 

44.  To  compel  Inclusion  of  certain  officers 
in  a  notice  of  election  (People  v.  Knopf,  198 
111.  340);  to  obey  an  order  of  court  allowing 
a  change  of  venue  and  to  transmit  papers  of 
the  case — State  v.  Chapman,  67  Ohio  St.  1. 

45.  Amount  of  fees  to  clerk  for  taxing 
bill  of  costs  In  criminal  prosecution  (Rev. 
St.  1898,  §  747) — Green  Lake  County  v.  Wau- 
paca County,  113  Wis.  425.  Sufficiency  of 
title  of  act  fixing  fees  of  clerks  of  civil  and 
criminal  district  courts  of  parish  of  Orleans 
— Grinage  v.  Times-Democrat  Pub.  Co.,  107 
La.  121. 

46.  Code  Crlm.  Proc.  art.  1143,  construed 
In  connection  with  Sayles'  Rev.  Civ.  St.  art. 
2423 — State  v.  Hart  (Tex.)   70  S.  W.  947. 

47.  State  V.  Crook,  132  N.  0.   1053. 


532 


CLERKS  OF  COURT. 


S  - 


before  the  settlement  and  paid  them  through  mistake  to  the  county,  he  could  not 
recover  such  fees  paid  over  to  the  county,  but  his  remedy  was  to  recover  compensa- 
tion out  of  fees  earned  while  he  was  clerk  and  collected  by  his  successor.**  A 
contract  will  be  implied  to  pay  fees  customarily  allowed  where  coimsel  procures  a 
loan  of  the  record  from  the  clerk  of  the  court  of  appeals  in  Kentucky."  The 
covmty  board  in  its  discretion  may  allow  supplemental  compensation  for  service.-; 
of  the  clerk  of  the  county  court  after  the  services  have  been  rendered.""  No  com- 
pensation can  be  recovered  by  the  clerk  in  Wisconsin  for  issuing  receipts  for  wit- 
nesses' certificates;  nor  for  filing  statements  of  witnesses'  services  and  milea-e 
prepared  by  the  attorneys  but  not  required  by  statute;  nor  for  issuing  affidavit? 
to  witnesses  proving  mileage."^  The  clerk  of  the  circuit  court  in  Alabama  may 
charge  compensation  for  entering  the  caption  of  an  indictment  on  final  record ; 
but  not  under  the  general  statute  for  entering  the  order  setting  the  day  for  trial. 
the  judgment  on  verdict  and  the  sentence  pronounced.^^  After  passage  of  a  laAv 
giving  the  clerk  of  the  Minnesota  district  court  a  fixed  salary  instead  of  the  per- 
quisites previously  given  he  cannot  retain  fees  collected  during  office  hours  foi- 
furnishing  imauthenticated  statements  to  commercial  or  abstract  companies  froui 
records  in  his  custody."'  The  clerk  of  the  superior  court  of  Georgia  is  entitled  to 
fees  paid  as  for  similar  services  in  other  cases  for  services  performed  after  re- 
cording Judgment  in  certiorari."*  The  clerk  of  the  common  pleas  of  Baltimoro 
is  not  entitled  to  interest  accruing  on  license  fees  collected  by  him  and  deposited 
in  bank.""  The  laws  providing  fees  to  be  charged  by  the  clerk  of  the  superior 
court  of  Washington  from  the  beginning  of  suits  down  to  entry,  collection  and 
satisfaction  of  final  judgment  does  not  apply  to  another  action  for  re^dving  the 
judgment,  such  proceedings  being  in  all  respects  a  new  suit."^ 

The  cleric  of  the  district  and  circuit  court  of  the  United  States  is  entitled  to 
his  statutory  per  diem  compensation  for  days  on  which  in  the  absence  of  a  judge 
he  entered  orders,  decrees  and  proceedings  on  the  journal  transmitted  to  him  by 
different  judges  composing  the  courts  of  the  district,"^  and  he  is  entitled  to  allow- 
ance of  a  day  while  the  court  is  actually  in  session  whether  business  is  transacted 
or  not;"*  but  cannot  claim  a  fee  for  filing  various  papers  given  to  his  custody  by 
circuit  court  commissioners,  on  abolition  of  their  office  under  the  statute,  where 
the  filing  was  not  required  by  statute  nor  a  rule  of  court."'  He  may  charge  for  filing 
and  marking  depositions  and  exhibits  in  a  criminal  case,  and  for  continuances 
though  the  date  of  the  term  at  which  they  were  taken  is  not  given,  or  for  a  certified 
copy  of  a  mittimus  left  with  the  jailor,  or  for  making  duplicate  copies  of  order? 
to  pay  jurors  which  the  statute  requires  to  be  kept  in  his  office  for  public  inspec- 
tion, or  for  copies  of  papers  furnished  United  States  attorneys  at  their  request: 


48.  Corbin  v.  Adair  County.  171  Mo.  385. 

49.  Shackelford  v.  Phillips,  24  Ky.  L.  R. 
154,  66  S.  W.   419,  68  S.  W.  441, 

."50.  Sess.  Laws  1897,  p.  239,  c.  34,  provide 
that  the  board  may  fix  the  compensation  of. 
the  clerk  of  the  county  court — Adams  Coun- 
ty V.  Bowen   (Neb.)   95  N.  "W.   869. 

51.  Rev.  St.  1898,  §§  747,  4060 — Green  Lake 
County  V.   Waupaca  County,   113  Wis.  425. 

52.  The  caption  is  a  part  of  the  indict- 
ment and  should  be  copied  under  the  char- 
ging part  (Code.  §  934,  subsec.  9,  §§  4893.  4511); 
the  last  named  items  cannot  be  allowed  un- 
der Code,  §  2642,  being  provided  for  by  Acts 
1896-7.  p.  1532 — Carmichael  v.  Matthews,  134 
Ala.  210. 

53.  Sp.  Laws  1891,  c.  373,  §§  2-6 — Board 
of  County  Com'rs    v.  Dickey,   86  Minn.   331. 

64,     He  Is  entitled  to  collect  $3  for  services 


performed  in  certiorari  Including  entry  of 
official  judgment  and  record  of  the  proceed- 
ings if  required  to  be  recorded  bv  law  (un- 
der Civ.  Code  1895,  §  5397) — McMichael  v. 
Southern  Ry.  Co.   (Ga.)   43  S.  E.  850. 

55.  Construction  of  various  provisions  of 
the  constitution  in  connection  with  various 
provisions  of  the  Code — Vansant  v.  State,  96 
Md.   110. 

56.  Under  Laws  1893,  p.  421,  §§  1,  2 — State 
v.   Collins    ("Wash.)    72   Pac.   98. 

57.  Compensation  provided  by  Act  March 
3,  1887.  c.  362— United  States  v.  Finnell,  185 
U.  S.   236. 

58.  Under  Organic  Act,  §  13,  and  Rev.  St. 
c.  16,  especially  §  823 — United  States  v.  War- 
ren  (Okl.)    71  Pac.   685. 

59.  Under  Act  May  28,  1896 — United  States 
V.  Van  Duzee,   185  U.  S.  278. 


5  -3 


LIABILITIES;    BOND. 


533 


but  not  for  copies  of  an  order  excusing  jurors  or  of  estimated  costs  furnished  to 
internal  revenue  collectors,  nor  for  making  copies  of  interrogatories  in  depositions 
in  a  criminal  case,  nor  for  a  copy  of  an  indictment  furnished  the  accused  at  his 
request  if  not  under  an  order  of  the  court,  nor  for  cartage  of  court  dockets,  files 
and  minute  books.^"  He  is  not  prevented  from  recovering  fees  in  a  suit  begun 
before  passage  of  a  law  requiring  an  account  for  fees  to  be  presented  and  allowed 
by  the  auditing  department  because,  through  inadvertence  or  a  mistake  to  post- 
pone the  charges  until  the  close  of  the  cause,  he  had  not  presented  some  of  the 
charges  until  after  passage  of  the  law;  and  his  right  to  fees  for  entering  in  his  ■ 
minute  book  a  memorandum  of  the  court  business  transacted,  and  of  adjournment, 
does  not  depend  upon  his  furnishing  an  itemized  statement  of  charges.^^  The  court 
will  not  interfere  to  allow  fees  suspended  by  the  department  for  explanation  imtil 
they  have  been  passed  upon.'^ 

§  3.  Liahilities  of  cleric  in  general;  lond  and  liahilities  thereon. — Where  a 
clerk  of  court  delivered  a  transcript  on  appeal  before  action  on  a  rule  by  the  Su- 
preme Court  to  show  cause  why  he  should  not  deliver  it,  the  rule  will  be  discharged 
at  his  cost.®^  A  city  court  sitting  in  equity  cannot  entertain  a  motion  against  the 
registrar  in  chancery  acting  ex  officio  on  the  chancery  side  of  that  court  for  default 
in  payment  of  proceeds  of  property  sold  under  decrees.^*  A  motion  will  not  lie  to 
require  the  clerk  of  the  District  Court  to  pay  over  money  received  by  him  on  a 
judgment  and  appropriated,  since  it  is  not  his  duty  to  receive  it  and  he  is  not  offi- 
cially liable  for  its  conversion.®"^ 

The  bondsmen  of  a  county  court  clerk  are  not  liable  to  the  purchaser  of  a 
warrant  forged  by  the  clerk  and  sold  at  a  discount,  such  act  not  being  within  his 
official  duties.^®  A  clerk  and  his  sureties  are  liable  on  his  official  bond  for  money 
received  in  his  official  capacity  in  court  in  condemnation  proceedings  which  he 
deposited  in  his  name  as  clerk  in  a  solvent  bank  without  order  of  court  and  which 
was  afterward  lost  by  failure  of  the  bank.®^  The  clerk  of  the  superior  court  re- 
ceiving proceeds  from  partition  commissioners  and  receipting  for  it  as  clerk  is  liable 
therefor  on  his  bond  and  claimants  may  sue  for  recovery  thereon.®^  The  clerk  of 
the  common  pleas  of  Baltimore  will  be  liable  on  his  bond  for  interest  received  on 
license  fees  received  by  him  and  deposited  in  bank.®®  A  special  bond  given  by  a 
clerk  in  a  particular  proceeding  as  a  cumulative  security  will  not  prevent  liability 
on  his  general  bond  in  that  proceeding.'^"  Where  it  appears  in  an  action  on  a 
clerk's  bond  to  recover  interest  collected  on  funds  of  the  state  that  other  money 
might  have  been  mingled  with  the  funds  by  the  clerk  in  depositing  funds  in  his 
custody  in  a  bank,  the  burden  is  on  him  to  show  what  part  if  any  of  the  fund 
deposited  belonged  to  him.''^  The  bond  of  a  United  States  circuit  court  clerk  is 
meant  for  the  protection  of  any  party  injured  by  failure  of  the  clerk  to  perform 


60.  The  last  Item  should  be  allowed  as 
miscellaneous  expenses  in  the  department  of 
justice  and  presented  by  the  marshal  to  tJlie 
attorney  general — Marvin  v.  United  States, 
114    Fed.    225. 

61.  Acts  June  27  and  July  1,  1898 — Marvin 
V.  United  States,  114   Fed.  225. 

62.  Marvin  v.  United  "States,  114  Fed.   225. 

63.  State  V.  Estorge   (La.)    34  So.   643. 

64.  Under  Code,  c.  106,  §  3767,  the  money 
so  received  not  being  money  collected  under 
"process" — Parks  v.  Bryant,  132  Ala.   224. 

65.  City  of  'W^hitesboro  v.  Diamond  (Tex. 
Civ.  App.)    75   S.   W.   540. 

66.  State  v.  Harrison  (Mo.  App,)  72  S.  W, 
469. 

67.  Northern  Pac,  Ry.  Co.  v.  Owens,  86 
Minn,  188. 


68.  Code,  §§  72,  1883— Smith  V.  Patton,  131 
N.   C.    396. 

69.  An  account  In  a  bank  opened  by  him 
in  his  name  as  clerk  and  which  he  after- 
ward remitted  to  the  state  treasurer  In  pay- 
ment of  license  fees  collected,  sufficiently 
shows  that  the  funds  belong-ed  to  the  state 
so  as  to  render  him  liable  for  interest  on 
the  deposits.  Code,  arts,  14  and  17,  He  may 
deposit  the  fees,  but  they  constitute  an 
emolument  beyond  the  sum  prescribed  by 
the  Constitution  for  his  salary — Vansant  v. 
State,  96  Md.  110. 

70.  The  sureties  have  at  most  a  right  of 
contribution  merely — Johnson  V.  Bobbitt 
(Miss.)    33   So,   73, 

71.  Vansant  v.  State,  96  Md.  110. 


534 


COLLEGES  AND  ACADEMIES. 


his  duty  within  its  conditions,  and  he  is  liable  thereon  for  appropriation  to  his 
own  use  of  money  deposited  with  him  by  a  private  suitor  in  a  pending  cause  with 
the  sanction  of  the  court.  A  private  suitor  may  sue  thereon  for  his  own  benefit 
in  the  name  of  the  United  States  without  express  statutory  authority." 

COLLEGES  AND  ACADEMIES. 

Nature,  establishment  and  organization. — A  manual  and  polytechnic  school 
established  by  private  donation  is  not  a  public  school.''^  Where  the  curriculum 
of  study  is  the  same,  it  is  not  important  that  an  institution  created  as  a  university 
is  termed  a  polyteclmic  school.^*  A  selection  of  a  site  for  a  normal  school,  after 
the  expiration  of  the  time  fixed  by  statute  for  the  selection,  is  unauthorized  and 
void.^^ 

Powers  of  officers. — Laws  prescribing  the  powers  and  duties  of  trustees  of  a 
college  are  not  unconstitutional  as  conferring  corporate  powers,  as  the  board  is 
not  a  corporation.'^*  Directors  of  an  endowed  institution  may  make  rules  and 
regulations  which  do  not  interfere  with  the  rights  of  the  public,  and  the  courts  will 
not  interfere  with  their  discretion  in  this  respect.''^  Laws  allowing  college  trustees 
to  convey  trust  property  to  a  city  in  the  execution  of  their  trust  do  not  deprive  the 
trustees  of  power  under  the  original  donation." * 

Endowments,  properties  and  fiscal  affairs. — The  course  of  legislation  in  In- 
diana shows  a  purpose  to  make  the  university  a  part  of  the  public  school  sj'steni, 
and  hence  its  endowment  fund  is  entitled  to  all  the  protection  accorded  to  the 
general  public  school  fund.'^®  Only  the  interest  on  proceeds  of  sales  of  a  govern- 
ment land  grant  for  normal  schools  may  be  expended  for  buildings  and  mainte- 
nance.^^ Directors  may  refuse  a  proposed  donation  for  maintenance  if  deemed  un- 
acceptable, but  where  accepted,  it  must  be  accepted  on  the  terms  offered.**  On 
failuje  of  a  college  to  establish  a  schoolarship  and  chair  under  an  agreement  for 
their  immediate  establishment  on  payment  of  a  certain  sum,  an  amount  to  be 
paid  at  donor's  death  cannot  be  collected  from  his  estate.*^  A  university  formed 
by  the  consolidation  of  two  existing  institutions  may  sell  a  portion  of  their  proper- 
ty, notwithstanding  the  agreement  of  consolidation  makes  a  removal  of  the  univer- 
sity work  a  reversion  of  property  to  the  constituent  colleges.*'  An  act  making  an 
annual  appropriation  to  support  a  state  institution  does  not  impliedly  repeal  an- 
other act  providing  for  an  annual  appropriation,  where  no  reference  is  made  to 
the  earlier  act;  the  later  act  will  be  construed  as  an  additional  appropriation.** 
An  act  by  the  city  requiring  the  city  board  of  education  on  application  of  the 
board  of  directors  of  a  college,  giving  instruction  to  pupils,  to  levy  a  tax,  does  not 
violate  the  bill  of  rights,  since  the  help  given  by  taxation  aids  public  instruction.** 
Endowment  fund  mortgages  under  Indiana  law. — In  Indiana  a  university 
permanent  endowment  fund  mortgage  may  be  foreclosed  by  public  advertisement.*® 
Publication  for  nine  successive  weeks  satisfies  the  requirement  of  sixty  days'  no- 


T2.  Bond  required  by  Rev.  St.  U.  S.  §  795, 
as  amended  by  Act  Feb.  22.  1875 — Howard  v. 
United  States.  184  U.  S.  676. 

73.  State  V.  Schauss,  23  Ohio  Circ.  R.   283. 

74.  State  v.  Toledo,  23  Ohio  Circ.  R.  327. 

75.  Board  of  Education  v.  Territory  (Okl.) 
70  Pac.  792. 

76.  Rev.  St.  §§  4099,  4105 — State  v.  Toledo, 
23  Ohio  Circ.  R.  327. 

77.  State  V.  Schauss,   23  Ohio  Circ.  R.   283. 
7S.     State  v.  Toledo,  23  Ohio  Circ.  R.  327. 

79.  Fisher  v.  Brower,  159  Ind.  139. 

80.  State  v.  Maynard  (Wash.)   71  Pac.  775. 


81.  State  V.  Schauss,  23  Ohio  Circ.  R.   283. 

82.  U.  S.  Grant  University  v.  Fruit's  Es- 
tate   ("Wis.)    94  N.   "W.   42. 

83.  Board  of  Trustees  v.  Board  of  Cura- 
tors,  24  Ky.  L.  R.  476,  68  S.  W.   660. 

84.  Agricultural  &  M.  College  v.  Lacy,  130 
N.   C.   364. 

85.  State  V.  Toledo,  23  Ohio  Circ.  R.  327. 

86.  Burns'  Rev.  St.  1901.  |  7164 — Fisher  v. 
Brower,  159  Ind.  139.  The  act  authorizing: 
the  state  auditor  to  foreclose  by  advertise- 
ment and  sale,  does  not  confer  judicial  power 
on  the  auditor — McElwain-Richards  Co.  v. 
Gifford   (Ind.)   66  N.  B.  576. 


§  1 


COMBINATIONS   AND   MONOPOLIES. 


53: 


tice.*^  The  legislature  has  power  to  make  permanent  endowment  fund  mortgages 
prior  to  all  other  mortgages  or  conveyances  of  the  property.^^  Purchasers  at 
such  foreclosiire  take  title  free  from  all  claim  of  the  holder  of  a  junior  mortgage.^® 
There  may  be  no  redemption  by  the  mortgagor  or  junior  incumbrancer.^"  Since 
the  act  of  1901,  the  purchaser's  deed  is  to  be  recorded  in  the  auditor's  office  and 
not  with  the  secretary  of  state.^^ 

Courses  of  study;  instruction;  teachers. — Trustees  are  proper  parties  to  suits 
to  enjoin  instruction  beyond  that  limited  by  the  deed  of  the  donor  establishing  the 
institution.^^ 

Instructors. — ^A  lady  teacher  in  a  private  academy  may  not  be  discharged  for 
disobeying  regulations  as  to  times  for  receiving  gentlemen  callers,  where  her  con- 
duct in  that  respect  is  ladylike  and  does  not  interfere  with  her  duties,®^  nor  for 
failure  to  keep  order,  where  the  disorder  is  due  to  the  fact  that  she  is  a  young  lady 
and  many  of  the  pupils  are  young  men  or  large  boys  who  could  not  be  restrained 
by  her.®* 

Discipline. — A  student  may  be  expelled  for  bearing  false  witness  against  a 
fellow  student.®'  In  California  the  local  board  of  trustees  of  a  normal  school 
may  not  dismiss  a  student  passing  all  classes  except  that  of  practice  teaching,  with- 
out giving  him  an  opportunity  to  complete  his  study  of  that  subject,®''  and  the 
joint  board  of  normal  school  trustees,  though  made  a  board  of  arbitration  in  mat- 
ters concerning  the  management  of  normal  schools,  is  without  appellate  jurisdic- 
tion to  pass  on  the  complaint  of  a  student  dismissed  from  school.®'' 

Issuance  of  diplomas. — An  action  solely  against  the  trustees  of  a  university, 
to  compel  the  issuance  of  a  diploma,  is  improper  where  diplomas  may  not  be  is- 
sued except  on  request  of  the  faculty.®* 

COMBINATIONS    AND    MONOPOLIES.99 

§  1.  Combinations  violative  of  the  federal  anti-trust  act. — Under  the  federal 
anti-trust  act  July  2,  1890,  if  the  effect  of  a  combination  or  contract  is  to  restrain 
interstate  commerce,  it  will  be  dissolved,^  no  matter  what  its  form  may  be,^  and 


87.  Burns'  Rev.  St.  1901,  §  6109 — Fisher  v. 
Brower,  159  Ind.   139. 

88.  Burns'  Rev.  St.  1901.  §  6100 — Fisher  v. 
Brower,  159  Ind.  139. 

89.  90.  McElwain-Richards  Co.  v.  GIfford 
(Ind.)   65  N.  E.  576. 

91.  Burns'  Rev.  St.  1901,  §  7651 — Fisher  v. 
Brower,   159   Ind.   139. 

92.  State  v.  Toledo,  23  Ohio  Circ.  R.  327. 

93.  Hall-Moody  Inst.  v.  Copass,  108  Tenn. 
582. 

94.  Hall-Moody  Inst.  v.  Copass,  108  Tenn. 
582.  An  instruction  that  the  board  could 
dismiss  a  teacher  if  she  was  keeping  late 
hours  with  young  men  or  going  with  them 
to  questionable  places  so  as  to  cause  her 
reputation  as  a  lady  to  be  called  in  question 
does  not  tend  to  lead  the  jury  to  think  that 
her  character  for  morality  or  chastity  was 
in  question,  where  there  was  evidence  tend- 
ing to  show  that  she  was  Indiscreet  in  vis- 
iting a  minstrel  show,  going  to  a  cafe  and 
receiving  gentlemen  callers  at  a  late  hour 
in  the  evening  and  in  other  respects — Id. 

95.  Goldstein  v.  New  York  University,  76 
App.  Div.   (N.  Y.)    80. 

96.  Miller  v.  Dailey,  136  Cal.  212,  68  Pac. 
1029. 

97.  There  was  a  sufficient  finding  on  the 
question  of  mental  capacity,  where  the  court 
in   mandamus    proceedings   found    that   there 


had  been  no  failure  in  the  subject  of  prac- 
tice teaching,  which  was  the  only  subject 
in  which  he  was  claimed  to  have  been  defi- 
cient, and  that  It  was  not  true  that  he  could 
not  attain  a  degree  of  proficiency  sufficient 
to  warrant  a  recommendation  for  a  diploma 
— Miller  v.  Dailey,  136  Cal.  212,  68  Pac.  1029. 
On  the  question  whether  there  had  been  an 
attendance  for  the  time  allowed  by  law,  a 
finding  is  sufficient  that  the  dismissed  stu- 
dent was  not  permitted  to  complete  the  prac- 
tice teaching  course  and  there  was  no  show- 
ing that  any  definite  time  had  been  fixed  by 
law  for  attendance  at  the  normal  school — Id. 

98.  Steinhauer  v.  Arkins  (Colo.  App.)  69 
Pac.  1075. 

99.  Illegality  of  contracts  as  violating 
public  policy,  etc.,  see  Contracts. 

1.  A  contract  betvreen  coal  producers  of  a 
district  controlling  and  limiting  the  output 
and  fixing  a  uniform  price  therefor,  etc.,  the 
contract  being  for  "Western  shipment"  and 
to  "enlarge  the  Western  market,"  is  Invalid 
as  restraining  interstate  commerce — Ches- 
apeake &  O.  Fuel  Co.  V  United  States  (C.  C. 
A.)  115  Fed.  610.  An  agreement  between 
dealers  In  a  certain  community  and  pro- 
ducers generally  in  the  United  States  bind- 
ing the  former  not  to  buy  from  producers 
not  members  and  not  to  sell  to  others  than 
members    at    le.ss    than    list   price,    the    latter 


53b 


COMBINATIONS   AND   MONOPOLIES. 


§2 


though  it  has  not  operated  injuriously  on  the  public,  but  has  been  beneficial.^ 
The  act  applies  to  interstate  carriers  of  passengers  or  freight.* 

Property  rights  and  the  right  to  protect  same  by  action  are  not  lost  because  the 
holder  is  a  member  of  a  combination  in  violation  of  the  act.^  That  a  contract  is 
violative  of  the  act  is  a  matter  of  defense/  but  unlawful  combination  cannot  be  made 
a  defense  in  collateral  way.'^  The  treble  damages  given  for  a  violation  of  the  act 
can  be  recovered  only  in  a  direct  action.* 

§  2.  ComMnations  violative  of  state  anti-trust  acts  and  of  the  common  law. 
— Acts  regulating  combinations,  known  generally  as  anti-trust  laws,  to  be  valid, 
must  not  discriminate  in  favor  of  any  particular  class  of  persons  or  products,^ 
but  they  are  not  invalid  in  that  they  abridge  the  right  to  acquire  property  by  con- 


not  to  sell  at  all  to  dealers  not  members, 
etc.,  is  w!thin  the  act  and  void — Montague 
V.  Lowry  (C.  C.  A.)  115  Fed.  27.  A  combi- 
nation between  dealers  to  compel  other 
dealers  to  sell  at  a  fixed  price  and  on  failure 
to  conform  to  prevent  sale  of  goods  to 
him  Is  within  the  act — Brown  v.  Jacobs' 
Pharmacy  Co.,  115  Ga.  429,  57  L.  R.  A.  547. 
A  contract  between  a  board  of  trade  and 
teleg-raph  company  not  to  furnish  market 
quotations  to  bucket  sliops  is  not  within  tlie 
act — Board  of  Trade  v.  Christie  Grain  Co., 
121  Fed.  608.  A  contract  by  a  patentee  giv- 
ing an  exclusive  license  to  manufacture  and 
Bell  the  patent  at  a  fixed  price  is  not  within 
the  act  though  it  also  provides  that '  the 
licensee  shall  not  manufacture  or  sell  other 
like  goods  without  the  improvement — Be- 
ment  v.  National  Harrow  Co.,  186  U.  S.  70,  4G 
U.  S.  Lawy.  Ed.  1058;  but  a  contract  be- 
tween the  licensee  and  dealers  not  to  sell 
the  article  below  a  fixed  price  will  not  be 
enforced — National  Phonograph  Co.  v.  Schle- 
gel,  117  Fed.  624. 

2.  The  formation  of  a  corporation  to  ob- 
tain control  of  the  majority  of  the  stock  of 
competing  interstate  railroad  companies,  to 
hold  and  vote  the  same;  to  receive  the  divi- 
dends and  divide  same  between  the  stock- 
holders of  the  companies  pro  rata,  though 
the  railroads  conducted  their  business 
through  their  own  officers  destroys  com- 
petition between  the  railroads  within  the 
Sherman  Act — United  States  v.  Northern  Se- 
curities Co.,  120  Fed.  721.  Combination  to 
control  production  and  price  of  shingles 
made  only  in  the  state  but  sold  principally 
without  the  state  is  violative  of  the  act — 
Glbbs  v.  McNeeley  (C.  C.  A.)  118  Fed.  120, 
60  L.  R.  A.   152. 

3.  Chesapeake  &  O.  Fuel  Co.  v.  United 
States  (C.  C.  A.)   115  Fed.  610. 

4.  A  contract  or  combination  which  de- 
prives a  carrier  of  the  right  to  fix  its  own 
rates  independent  of  a  competing  carrier  no 
matter  whether  the  combination  rates  are 
reasonable  or  unreasonable  Is  void — United 
States  V.  Northern  Securities  Co.,  120  Fed. 
721. 

5.  The  fact  does  not  give  third  persons 
the  right  to  infringe  patents  held  by  him — 
General  Elec.  Co.  v.  Wise,  119  Fed.  922.  A 
combination  In  violation  of  the  act  is  not 
precluded  from  recovering  on  collateral  con- 
tracts for  goods  sold — Connolly  v.  Union 
Sewer  Pipe  Co.,  184  U.  S.  640,  46  U.  S.  Lawy. 
Ed.  679. 

6.  Bement  v.  National  Harrow  Co.,  186  U. 
S.  70,  46  U.  S.  Lawy.  Ed.  1058. 


7.  Harrison  v.  Glucose  Sugar  Ref.  Co.  (C. 
C.  A.)  116  Fed.  304;  KInner  v.  Lake  Shore  & 
M.  S.  R.  Co.,  23  Ohio  Circ.  R.  294.  That  com- 
plainant in  equity  is  a  member  of  an  unlaw- 
ful railroad  transportation  company  is  not 
ground  for  refusing  it  relief  against  dealing 
in  its  tickets  by  third  persons — Id. 

8.  They  cannot  be  set  off  in  an  action  by 
the  trust  or  combination  particularly  In  a 
^tate  where  unllquIdateS  damages  cannot  be 
set  off  in  an  action  on  a  contract — Connolly 
V.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  46  U. 
S.  Lawy.  Ed.   679. 

9.  The  111.  Act  June  20,  1893,  exempting 
from  its  operation  agricultural  products  and 
live  stock  is  repugnant  to  U.  S.  Const, 
amend,  art.  14,  and  is  invalid  in  its  entire- 
ty— Connolly  v.  Union  Sewer  Pipe  Co.,  184 
Q.  S.  540,  46  U.  S.  Lawy.  Ed.  679.  So  also  the 
Georgia  Act,  Dec.  23,  1896  (Brown  v.  Jacobs' 
Pharmacy  Co.,  115  Ga.  429,  57  L.  R.  A.  547); 
and  Texas  Act,  March  30,  1899  (State  v. 
Waters-Pierce  Oil  Co.  [Tex.  Civ.  App.]  67  S. 
W.  1057);  but  the  Texas  Act  1895  (Rev.  St. 
1895,  arts.  5313,  5314)  is  not  repugnant  to 
such  constitutional  provision  because  It  pro- 
vides for  a  forfeiture  of  the  charter  of  do- 
mestic corporations  and  a  revocation  of 
licenses  to  foreign  companies  for  violation 
of  its  provisions — State  v.  Shippers'  Com- 
press &  Warehouse  Co.  (Tex.)  69  S.  W.  58; 
National  Cotton  Oil  Co.  v.  State  (Tex.  Civ. 
App.)  72  S.  W.  615.  Neb.  Com.  St.  1901,  c. 
91a,  excepting  labor  unions  from  its  opera- 
tion Is  not  invalid  as  a  grant  of  a  special 
privilege — Cleland  v.  Anderson  (Neb.)  92  N. 
W.  306.  111.  Act  June  10,  1897,  excepting 
combinations  for  the  purpose  of  maintaining 
wages  from  the  act  renders  it  invalid,  but  It 
did  not  invalidate  the  act  of  1891 — People  v. 
Butler  St.  Foundry  Co.,  201  111.  23"6.  Except- 
ing building  and  loan  associations  from  the 
operation  of  the  act  does  not  render  It  In- 
valid. Such  corporations  are  not  for  pecu- 
niary profit — People  v.  Butler  St.  Foundry 
Co.,  201  111.  236.  111.  Act  1891,  amend.  1893. 
§§  7a,  7b,  providing  that  corporations  under 
penalty  answer  under  oath  inquiries  from 
the  secretary  of  the  state  as  to  whether  they 
are  violating  the  act  is  valid,  though  this  Is 
only  required  of  corporations;  nor  is  it  an 
assumption  of  judicial  power  by  the  legisla- 
ture— Id.  Tex.  Anti-trust  Act  1899,  c.  146, 
by  section  fourteen  does  not  incorporate  as 
a  part  of  It  the  unconstitutional  part  of  act 
1895,  c.  83,  exempting  certain  parties  from 
Its  operation — State  v.  Laredo  Ice  Co.  (Tex.) 
73  S.  W.  951. 


§  2 


STATE  ANTI-TRUST  LAWS. 


537 


tract."  Statutes  designed  to  prevent  combinations  have  been  construed  as  shown 
below.**  Contracts  or  combinations  controlling  the  price  of  and  tending  to  stifle 
competitioi^  in  commodities  are  generally  void/^  as  against  public  policy.*'  If 
the  effect  of  the  combination  is  to  restrain  trade,  it  is  invalid/*  though  there  is 
not  a  complete  monopoly  of  the  article,  and  though  the  public  is  not  injuriously  af- 
fected,*^ but  a  monopoly  is  not  created  merely  because  a  certain  business  is  placed 
at  Bome  disadvantage.*® 

A  combination,  though  illegal  at  common  law,  is  not  precluded  from  recovering 
on  contracts  made  in  the  course  of  business.*^  Forfeiture  of  a  corporate  charter 
does  not  necessarily  follow  because  it  entered  into  a  combine,  but  it  will  be  fined 
after  abandonment  of  the  combine.**  Any  individual  injuriously  affected  by  the 
combination  has  a  cause  of  action  therefor,*®  or  he  may  obtain  an  injunction  to 
dissolve  it,^"  against  the  individuals  composing  the  combination. 2*  Where  it  is  an 
incorporation  for  monopolistic  purposes,  the  remedy  would  be  by  quo  warranto.^^ 
If  the  statute  permits  a  recovery  back  of  money  paid  to  a  company  imlawfully 
transacting  business  as  a  trust,  such  provision  is  in  the  nature  of  a  penalty.^' 


10.  Kan.  Laws  1897,  c.  265 — State  v. 
Smiley,  65  Kan.   240,  69  Pac.  199. 

11.  Miss.  Code  1892,  c.  140,  §  4437.  The 
words  "and  Is  inimical  to  public  welfare,  un- 
lawful, and  a  criminal  conspiracy"  were  not 
intended  as  an  element — Barataria  Canning 
Co.  V.  Joullan,  80  Miss.  555.  Illinois  Act 
June  11,  1891,  preventing  trusts  was  not  ex- 
pressly or  by  implication  repealed  by  Act 
June  20,  1893,  defining  trusts — People  v.  But- 
ler St.  Foundry  Co.,   201  111.   236. 

12.  An  agreement  to  sell  all  oysters  dug 
to  one  party  excepting  a  portion  which  the 
producer  was  not  to  sell  at  less  than  a  fixed 
price  is  void  under  Miss.  Code  1892,  c.  140,  §§ 
4437,  4438 — Barataria  Canning  Co.  v.  Joulian 
80  Miss.  555.  Agreement  between  plumbers' 
association  and  dealers  and  manufacturers 
of  supplies  not  to  sell  to  others  than  mem- 
bers is  within  Mo.  Rev.  St.  1899,  c.  143,  art, 
2,  §  8978  and  void — Walsh  v.  Master  Plumb- 
ers' Ass'n,  97  Mo.  App.  280.  A  combination 
of  retail  lumber  dealers,  prescribing  a  quali- 
fication for  membership,  to  prevent  sales  di- 
rect to  consumers  or  retailers  not  eligible  to 
membership  by  wholesale  dealers  is  void  un- 
der Neb.  Comp.  St.  c.  91a,  §  1 — Cleland  v.  An- 
derson (Neb.)  92  N.  W.  306.  Agreement  be- 
tween brewers  not  to  sell  beer  to  one  In- 
debted to  one  of  the  parties  for  beer  sold  is 
in  violation  of  Mo.  Rev.  St.  1899 — Ferd  Heim 
Brew.  Co.  v.  Belinder,  97  Mo.  App.  64.  The 
proportion  of  retail  dealers,  in  a  combine  to 
prevent  sales  to  non-members,  that  the  num- 
ber bears  to  the  w^hole  number  of  dealers  is 
not  material — Cleland  v.  Anderson  (Neb.)  92 
N.  W.  306.  The  mere  incorporation  for  the 
purpose  of  purchasing  and  maintaining  cot- 
ton compresses  does  not  show  of  itself  an 
intention  to  create  a  monopoly.  The  price 
of  compressing  being  uniform  and  fixed  by 
the  railroad  commission— State  v.  Shippers' 
Compress  &  "Warehouse  Co.  (Tex.)  69  S.  W. 
58. 

Manufacturers  and  dealers  do  not  create 
a  monopoly  by  fixing  a  uniform  jobbing 
price  and  agreeing  to  sell  only  to  retailers 
who  would  exact  the  regular  retail  list  price, 
provided  any  dealer  is  allowed  to  buy  on 
such  terms — John  D.  Park  &  Sons  Co.  v. 
National  Druggists'  Ass'n,  175  N.  Y.  1. 

Evidence  held  insufficient  to  show  a  con- 


tract to  stifle  competition  under  Iowa  Code,  § 
5060 — Willson  V.  Morse,  117  Iowa,  681. 

13.  An  agreement  limiting  the  amount  of 
purchase  of  grain  is  within  Kan.  Laws  1S97 
— State  V.  Smiley,  65  Kan.  240,  69  Pac.  199. 

14.  If  the  effect  of  the  association  of  a 
certain  branch  of  labor  is  to  control  it  to 
the  exclusion  from  employment  persons  not 
members,  courts  will  not  recognize  it  by 
compelling  its  continuance  or  by  reinstat- 
ing expelled  members — O'Brien  v.  Musical 
Mut.  Protective  Union  (N,  J.  Ch.)  54  Atl. 
150;  Froelioh  v.  Musicians  Mut.  Benefit  Ass'n, 
93  Mo.  App.   383. 

15.  Evidence  held  sufficient  to  show  com- 
bination to  fix  prices — State  v.  Armour  Pack- 
ing Co.    (Mo.)    73   S.   W.   645. 

16.  State  v.  New  Orleans  Warehouse  Co., 
109  La.  64. 

17.  Connolly  v.  Union  Sewer  Pipe  Co.,  184 
U.  S.  540.  46  U.  S.  Lawy.  Ed.  679.  Under  Mo. 
Rev.  St.  1899,  §§  8966,  8970,  that  plaintiff  was 
a  member  of  a  combine  may  be  set  up  as  a 
defense  to  an  action  on  a  contract  made  with 
It — Ferd  Heim  Brew.  Co.  v.  Belinder,  97  Mo. 
App.  64. 

18.  Mo.  Rev.  St.  1899,  §  8971 — State  v.  Ar- 
mour Packing  Co.    (Mo.)    73   S.  W.    645. 

19.  Laws  N.  Y.  1899,  c.  690 — Rourke  v.  Elk 
Drug  Co.,  75  App.  Div.  (N.  Y.)  145.  Under 
Neb.  Comp.  St.  1901,  c.  91a,  §  11  the  action 
may  be  brought  against  a  member  or  mem- 
bers of  the  association  personally — Cleland 
V.  Anderson    (Neb.)    92  N.  W.   306. 

Allegations  of  a  conspiracy  to  control 
prices  held  to  be  conclusions  of  law  not  ad- 
mitted by  demurrer — John  D.  Park  &  Sons 
Co.  V.  National  Druggists'  Ass'n,  175  N.  Y.  1. 

20.  Rev.  St.  1899,  c.  143,  art.  2,  §§  8978, 
8979,  do  not  affect  remedies  previously  ex- 
isting— Walsh  V.  Master  Plumbers'  Ass'n,  97 
Mo.  App.   280. 

21.  Brown  v.  Jacobs*  Pharmacy  Co.,  115 
Ga.   429.   57  L.   R.  A.   547. 

22.  Where  the  monopoly  was  created  by 
an  exercise  of  the  charter  powers,  as  where 
it  was  allowed  to  purchase  stock  in  other 
corporations,  a  contract  of  purchase  will  not 
be  enjoined — Dittman  v.  Distilling  Co.  (N.  J. 
Ch.)    54   Atl.   570. 

23.  And  on  termination  of  the  company 
the  right  of  action  dies — Mason  v.  Adoue 
(Tex.  Civ.  App.)   70  S.  W.  347. 


538 


COMBINATIONS— COMMERCE. 


§   3 


All  parties  to  the  conspiracy  should  be  nameJ  in  the  information,  though  they  need 
not  be  jointly  charged.^*  That  the  cause  of  the  breach  of  a  contract  was  the  en- 
tering into  an  unlawful  combination  is  not  ground  for  enhancing  the  damages.^* 

§  3.  Grants  of  privileges  by  statute,  ordinance  and  contracts  with  municipali- 
ties tending  to  create  monopolies. — The  power  of  a  municipality  to  create  a 
monopol)'  cannot  be  implied  from  its  charter.^®  Ordinances  or  statutes  which  in 
effect  grant  privileges  to  some  and  refuse  them  to  others  on  equal  terms  tend  to 
create  a  monopoly  and  are  invalid. ^^ 

COIOIERCE. 

S  1.     Public  Regrulation. — Federal  and  State        §  2.     Domestic   and   Interstate   or   Foreign. 

Powers;      Peddlers;      Foreign     Corporations;    — Original    Packages;    Sales    on    Agents'    Or- 
Telegraphs    and    Telephones;    Railroads;    Of-jders;    Lottery    Tickets;    Domestic    Terminals 
fenses;    Intoxicants;    Adulterations;    Quaran-    Connected  by  Foreign  Lines, 
tine;  State  Taxation  of  Foreign  Commerce.     | 

§  1.  Public  regulation  in  general.  Meaning  of  term  and  general  limitations 
of  federal  and  state  powers. — The  term  commerce  as  used  in  law  books  includes  all 
the  initiatory  and  intervening  acts  that  directly  bring  about  the  sale  or  exchange 
of  goods.-* 

The  purpose  of  the  commerce  clause  of  the  constitution  is  to  prevent  dis- 
crimination in  favor  of  local  products.^^  A  state  cannot  give  a  corporation  or- 
ganjzed  under  its  laws  power  to  do  acts  which  would  operate  to  restrain  interstate 
commerce,^"  and  the  government  may  not  interfere  with  commerce  strictly  within 
the  state.^^  A  state  cannot  regulate  except  for  public  health,  the  bringing  into  the 
state  from  another  of  an  article  of  commerce,  but  may  regulate  its  sale  after  the 
article  is  brought  into  the  state.  ^^ 

A  license  imposed  on  nonresidents  carrying  on  a  local  business  is  not  regida- 
tion  of  commerce.^^ 

Hawl-ers'  and  peddlers'  licenses. — Laws  taxing  peddlers  are  not  on  their  face 
objectionable  as  authorizing  a  tax  on  interstate  commerce.^*  The  fact  that  a  ped- 
dJer  deals  with  a  foreign  merchant,  who  requires  payment  for  goods  as  a  condition 
to  delivery,  will  not  make  the  license  a  burden  on  commerce.^^ 


24.  state  V.  Dreany,  65  Kan.  292,  69  Pac. 
182. 

25.  Crystal  Ice  Co.  v.  Wylle,  65  Kan.  104, 
68   Pac.   1086. 

26.  Town  of  Kirkwood  v.  Meramec  High- 
lands Co.,  94  Mo.  App.   637. 

27.  Ordinance  construed  and  held  not  to 
authorize  the  city  marshal  to  discriminate 
and  give  exclusive  rights  to  stand  cabs  at 
railroad  depots — City  of  Danville  v.  Noone, 
103  111.  App.  290.  A  statute  authorizing  a 
residence  park  association  to  maintain 
stores,  etc.,  to  furnish  visitors  and  lessees 
with  necessaries  held  not  tending  to  create 
a  monopoly — Thousand  Island  Park  Ass'n  v. 
Tucker.  173  N.  T.  203.  Authorizing  the  use 
of  certain  text  books  In  schools  for  a  term 
of  years  does  not  tend  to  create  a  monopoly 
— Rand.  McNally  &  Co.  v.  Hartranft,  29 
Wash.  591,  70  Pac.  77.  A  contract  with  an 
individual  giving  him  the  exclusive  right  to 
collect  ashes  and  other  harmless  substances 
Is  invalid  (Her  v.  Ross  [Neb.]  90  N.  "W.  869. 
57  L.  R.  A.  985)  but  a  contract  to  furnish 
lights  for  streets  and  for  individual  use  for 
a  definite  period  does  not  tend  to  create  a 
monopoly — Denver  v.  Hubbard  (Colo.  App.) 
68    Pac.    993.     A    grant    to    an    individual    an 


exclusive  right  to  use  city  streets  to  erect 
and  maintain  a  system  of  telephone  poles  Is 
a  grant  of  an  exclusive  privilege — Chicago 
Tel.  Co.  V.  Northwestern  Tel.  Co.,  100  111. 
App.  57. 

In  Alabama  an  exclusive  water  franchise 
may  be  revoked  (Const,  art.  1,  §  23)  though 
loss  may  befall  the  franchise  holders.  Const, 
art.  14,  §  10,  restricting  revocation  of  char- 
ters to  such  as  that  no  injustice  befalls  the 
corporators  does  not  apply — Bienville  Water 
Supply  Co.  V.  Mobile,  186  U.  S.  212,  46  U.  S 
Lawy.  Ed.  1132. 

28.  United  States  v.  Swift  &  Co.,  122  Fed. 
529. 

29.  Kehrer  v.   Stewart    (Ga.)    44  S.  E.   854. 

30.  United  States  v.  Northern  Securities 
Co..  120  Fed.  721. 

31.  State  v.  Hammond  Packing  Co.  (La.) 
34   So.   368. 

32.  Commonwealth  v.  Phosphate  Co.,  23 
Ky.  L.  R.   2284,  67  S.  W.   45. 

33.  State  v.  Hammond  Packing  Co.  (La.) 
34   So.   368. 

34.  In  re  Lipschltz  (N.  D.)  95  N.  W.  157. 
Ga.  Pen.  Code,  §  600 — Stone  v.  State  (Ga.) 
43   S.  E.   740. 

35.  In  ro  Pringle    (Kan.)    72  Pac.    864. 


8  I  PUBLIC  REGULATION.  539 

Regulation  of  foreign  corporations  in  general. — A  foreign  corporation  engaged 
in  interstate  business  may  be  required  to  comply  with  reasonable  regulations  as  a 
condition  to  doing  business  within  a  state.^^  A  state  law  requiring  foreign  cor- 
porations to  file  a  copy  of  their  charter  may  not  be  avoided  on  the  ground  that  the 
contemplated  traffic  might  extend  beyond  the  state  limits.^^  A  foreign  corporation 
sending  goods  to  retail  dealers  on  orders  obtained  from  traveling  men  is  not  within 
local  laws  requiring  foreign  corporations  engaged  in  business  in  the  state  to  desig- 
nate places  of  business  within  the  state  and  the  name  of  one  on  wliom  process  may 
be  served.^^ 

Regulation  of  telegraph  and  telephone  companies. — A  telegraph  company, 
though  engaged  in  interstate  commerce,  may  be  required  to  pay  a  reasonable  license 
fee  by  a  municipality;^®  and  it  is  not  material  that  a  larger  amount  is  realized  than 
is  actually  necessary  to  reimburse  the  city  for  the  costs  of  supervision  and  inspec- 
tion.*" An  occupation  tax  cannot  be  levied  on  the  interstate  business  or  business 
of  the  government  transacted  by  telegraph.*^  The  fact  that  telegrams  are  sent 
beyond  the  state  will  not  work  an  exemption  from  taxation  where  valuation  is 
determined  by  regarding  the  part  within  the  state  as  part  of  a  system  operated  in 
other  states,*^  nor  will  acceptance  of  the  benefits  of  Act  of  Congress,  allowing 
operation  over  military  and  post  roads  and  organization  under  the  laws  of  an- 
other state  be  conclusive  on  the  question.*^  A  state  may  compel  payment  of  a 
license  fee  on  each  telephone  in  use,  though  the  companies  do  interstate  business, 
where  the  act  applies  only  to  instruments  used  solely  in  business  within  the 
state.**  Neither  a  state  nor  an  Indian  nation  may  grant  to  telephone  companies 
the  exclusive  right  to  maintain  lines  in  the  territory.*" 

Regulation  of  railroads  and  other  carriers. — The  state  may  not  fix  the  rates 
to  be  received  by  carriers  engaged  in  interstate  commerce,*^  nor  compel  railroad 
companies  to  transfer  cars  containing  live  stock  to  connecting  roads  within  the 
state,  where  the  shipment  comes  from  another  state,*'^  nor  impose  a  penalty  for 
shipping  freight  from  another  state  by  a  road  different  from  that  designated  by 
the  shipper.** 

A  city  may  not  require  a  license  fee  from  an  express  company  doing  both  a 
local  and  interstate  business.*®  Laws  requiring  payment  of  an  occupation  tax 
must  distinguish  between  the  local  and  the  interstate  business."**  The  state  may 
regulate  the  local  business  of  carriers,  where  interstate  commerce  is  not  interfered 
with."^     The  commerce  clause  is  not  violated  by  state  laws  imposing  a  penalty  on 


36.  State  V.  American  Book  Co.,  65  Kan. 
847,  69  Pac.  563;  Commonwealth  v.  Phos- 
phate Co.,  23  Ky.  L.  R.  2284,  67  S.  W.  45. 
The  franchise  tax  laws  of  Michig-an,  requir- 
ing foreign  corporations  to  pay  a  franchise 
fee,  and  providing  that  contracts  made  by 
non-complying  companies  shall  be  wholly 
void,  are  within  the  power  of  the  state.  The 
real  purpose  of  the  statute  is  to  impose  a 
tax  as  a  condition  to  carrying  on  business  in 
this  state — Oakland  Sugar  Mill  Co.  v.  Fred 
W.  Wolf  Co.    (C.   C.  A.)    118   Fed.   239. 

37.  Diamond  Glue  Co.  v.  United  States 
Glue  Co.,  187  U.  S.  611. 

38.  Commonwealth  v.  Hogan,  McMorrow 
&  Tieke  Co.,  25  Ky.  L.  R.  41,  74  S.  W.  737. 

39.  Borough  of  Taylor  v.  Cable  Co.,  202 
Pa.  583;  Atlantic  &  P.  Telegraph  Co.  v. 
Philadelphia,  190  U.  S.  160.  It  may  be  based 
on  the  poles  and  length  of  conduits  in  city — 
Postal  Tel.  Cable  Co.  v.  Norfolk  (Va.)  43  S. 
B.   207. 

40.  "Western  Union   Tel.  Co.  v.  New  Hope, 


41.  Western  Union  Tel.  Co.  v.  Wakefield 
(Neb.)   95  N.  W.  659. 

42,  43.  Western  Union  Tel.  Co.  v.  Missouri, 
190  U.  S.   412. 

44.  State  V.  Rocky  Mountain  Bell  Tel.  Co., 
27  Mont.  394,  71  Pac.  311. 

45.  Muskogee  Nat.  Tel.  Co.  v.  Hall  (C.  C. 
A.)  118  Fed.  382.  The  act  of  congress  gov- 
erning the  matter  of  franchises  for  tele- 
phone lines  in  Indian  Territory  annulled 
grants  previously  made  by  Indian  nations 
conflicting  therewith — Muskogee  Nat.  Tel. 
Co.  V.  Hall   (C.  C.  A.)   118  Fed.  382. 

46.  Southern  Exp.  Co.  v.  Goldberg  (Va.) 
44  S.  E.  893. 

47.  Central  Stock  Yards  Co.  v.  Railroad 
Co.    (C.  C.  A.)    118   Fed.   113. 

48.  Lowe  V.  Railway  Co.,  63  S.  C.  248. 

49.  Southern  Exp.  Co.  v.  Ensley,  116  Fed. 
756. 

50.  Pol.  Code,  §  4074 — State  v.  Express  Co., 
27  Mont.  419,  71  Pac.  404. 


187  U.  S.   419.  51.     A  privilege  tax — Nashville,  C.  &  St.  L.. 


540 


COMMERCH. 


§   1 


carriers  for  failure  to  pay  damages  on  freight  in  a  specified  time,"  nor  by  laws 
making  weights  in  bills  of  lading  conclusive,"  nor  by  a  requirement  that  the 
delivering  carrier  trace  and  locate  the  carrier  causing  injury  to  goods  in  transit," 
nor  by  laws  prohibiting  unjust  discrimination  by  an  expreee  company  against  an- 
other company  engaged  in  the  same  business/"^ 

Eailroads  engaged  in  interstate  commerce  are  subject  10  local  la^^s  governing 
signals  at  crossings,^'  and  speed  of  trains.'*''  The  state  maj  require  it^corporatioa 
of  foreign  railway  corporations  under  its  laws."^* 

Discnmination  in  rates  under  interstate  commerce  act. — There  ^ust  be  a 
shipment  to  constitute  a  violation  of  the  Interstate  Commerce  Act;  mere  making 
of  offer  of  a  discriminating  rate  is  not  sufficient.^'  A  carrier  cannot  adopt  un- 
reasonable rates  for  the  purpose  of  building  up  a  seaport  on  its  own  line  at  the 
expense  of  one  on  a  rival  road.®"  The  charging  of  unjust  and  unreasonable  rates 
or  the  making  of  imdue  discrimination  on  a  portion  of  a  railroad  system  is  not 
justified  by  the  fact  that  such  portion  fails  to  pay  expenses.**  A  lesser  rate  to  a 
more  distant  and  competitive  point  is  not  an  unjust  discrimination  or  an  undue 
preference  with  regard  to  the  nearer  noncompetitive  point.®^  In  determining 
the  reasonableness  of  rates,  a  city  which,  by  reason  of  competition,  has  received  un- 
usually low  rates,  should  not  be  made  the  sole  basis  of  comparison.®'  Weight  should 
be  given  the  opinions  of  expert  witnesses  as  to  the  effect  of  the  rates  charged  on 
the  growth  and  prosperity  of  the  city,  the  cost  of  transportation  as  compared  with 
the  rates  charged,  and  the  rates  in  force  at  numerous  other  cities  where  the  cir- 
cumstances are  as  nearly  as  possible  similar.®*  The  fact  that  a  point  becomes 
noncompetitive,  by  reason  of  the  purchase  by  one  road  of  the  competing  road,  does 
not  affect  the  justice  of  discrimination  in  favor  of  a  competing  point,  where  it  is 
affirmatively  shown  that  the  rates  to  the  noncompetitive  point  have  not  been  in- 
creased.®"^ Where  a  through  rate  is  made  by  two  roads  jointly,  each  may  be  liable 
for  a  violation  of  the  interstate  commerce  act  without  regard  to  the  proportion  it 
receives  for  its  own  services.®®  On  appeal  from  a  decree  of  the  interstate  commerce 
commission,  the  supreme  court  will  not  independently  investigate  the  facts  to 
make  new  findings  to  sustain  the  order  of  the  commission,  even  though  the  record 
is  such  as  to  allow  such  investigation.®^  There  is  a  presumption  that  conclusions 
of  an  interstate  commerce  commission  are  well  founded,  and  in  a  suit  to  enforce 
the  order,  the  burden  rests  upon  the  company  to  show  any  errors.®'  Copies  of 
confidential  telegrams  sent  or  received  by  the  commission  need  not  be  filed  with  the 
claims  for  telegraph  tolls.®® 


Ry.  Co.  V.  Alabama  City,  134  Ala.   414;   Pull- 
man Co.  V.  Adams,  189  U.  S.  420. 

52.  Porter  v.  Railway  Co.,   63   S.   C.   169. 

53.  Missouri.  K.  &  T.  Ry.  Co.  v.  Simon- 
son,   64   Kan.   802. 

54.  Central  of  Georgia  Ry.  Co.  v.  Mur- 
phey  (Ga.)  43  S.  E.  265. 

55.  Acts  1901.  p.  149  (Burns'  Rev.  Sts. 
1901,  §  3312) — Adams  Exp.  Co.  v.  State  (Ind.) 
67   N.    E.    1033. 

56.  "Wlllfong  V.  Railroad  Co.,  116  Iowa, 
548. 

57.  Chicago  &  A.  R.  Co.  v.  CarllnviUe,  200 
in.    314. 

5S.  Davis'  Adm'r  v.  Railroad  Co.,  24  Ky. 
L.  R.   1125.   70  S.  W.   857. 

59.  Lehigh  Valley  R.  Co.  v.  Rainey,  112 
Fed.  487.  Proceedings  for  damages  for  dis- 
crimination in  freight  rates,  under  the  in- 
ter-state commerce  act,  are  governed  as  to 
limitations    by    the    statutes    of    the    state 


where     brought — Ratlcan     v.     Terminal     R. 
Ass'n,  114  Fed.  666;  Klnnavey  v.  Same,  Id. 

60.  Interstate  Commerce  Commission  v. 
Railroad   Co.,   118   Fed.    613. 

61.  Separate  road  operated  as  a  part  of 
a  large  railway  sj'stem — Interstate  Com- 
merce Commission  v.  Railroad  Co.,  118  Fed. 
613.  Evidence  of  shipments  on  a  certain 
division  of  a  road  held  to  be  unjust,  unrea- 
sonable  and    discriminating — Id. 

62.  63,  64,  e.*;.  Interstate  Commerce  Com- 
mission V.  Railway  Co.,  117  Fed.  741. 

66.  Interstate  Commerce  Commission  v. 
Railroad  Co.,   118  Fed.  613. 

67.  Interstate  Commerce  Commission  v. 
Railroad  Co.,  186  U.  S.  320,  46  U.  S.  Lawy. 
Ed.   1182. 

es.  Interstate  Commerce  Commission  v. 
Railroad  Co..  118  Fed.   613. 

69.  United  States  v.  Moseley,  187  U.  S. 
322. 


S  1 


PUBLIC    REGULATION. 


541 


Offenses  against  regulatory  acts. — The  officers  are  individually  liable  to  indict- 
ment along  with  the  carrier  for  violation  of  the  interstate  commerce  act/"  An  in- 
dictment under  the  Federal  act,  making  it  unlawful  for  a  common  carrier  to  trans- 
port game  killed  in  violation  of  the  laws  of  the  state  where  the  game  was  killed, 
must  aver  the  fact  that  it  was  so  killed  and  delivered  to  the  carrier/*  A  motion 
to  quash  information,  charging  violation  of  interstate  commerce  act,  should  show 
that  the  business  of  defendant  was  interstate  commerce,^"  and  the  interstate  com- 
merce commission  may  properly  examine  into  an  increased  rate  made  pending  the 
hearing/' 

Regulation  of  traffic  in  intoxicating  liquors. — The  Wilson  act,  making  liquors 
on  their  arrival  in  the  state  subject  to  the  operation  of  the  police  powers  of  the 
state,  gives  the  state  jurisdiction  only  after  the  liquors  have  been  delivered'^*  Oi. 
stored  within  the  state  to  await  the  consignee's  orders/"*  The  act  did  not  give  the 
state  power  to  interfere  with  interstate  commerce  by  laws  only  effectual  without 
the  state/*  Since  the  Wilson  act,  the  question  whether  a  local  statute  imposing  a 
tax  on  liquor  imported  into  the  state  violates  the  constitution  of  the  United  States, 
prohibiting  the  laying  of  imposts  or  the  commerce  clause  can  no  longer  arise/^ 

Beer  sent  by  a  foreign  brewery  into  a  state  for  storage  and  sale  by  an  agent  is 
subject  to  taxation  under  the  state  laws/*  State  inspection  laws  are  inoperative 
as  to  liquors  passing  through  a  state  or  stored  therein  for  distribution  to  points 
without  the  state/®  There  is  not  a  discrimination  against  foreign  brewers  by  a 
provision  releasing  local  brewers  from  payment  of  inspection  fees  on  export  beers/" 
The  fact  that  inspection  fees  exceed  the  cost  of  inspection  will  not  invalidate  a  law 
valid  under  the  Wilson  act."  A  state  law  providing  a  certain  tax  for  wholesale 
liquor  dealers  and  a  less  tax  on  manufacturers  does  not  discriminate  where  manu- 
facturers establishing  warehouses  or  places  of  sale  elsewhere  than  at  the  brewery 
must  pay  the  tax.*^  The  commerce  clause  is  violated  by  the  state  law  prohibiting 
the  sale  of  intoxicating  liquors  without  a  license  and  excepting  sales  of  domestic 
wines  or  ciders/' 

Adulteration  of  articles  of  food  and  drink. — The  states  have  power  to  enact 
laws  to  prevent  adulteration  of  food  stuffs,  and  such  laws  are  not  regarded  as  a 
violation  of  the  commerce  clause  of  the  constitution,  though  the  articles  or  in- 
gredients are  brought  from  other  states  or  intended  for  sale  in  such  states.'* 

Quarantine  laws. — A  state  health  law  against  healthy  persons  entering  infected 
districts  does  not  interfere  with  commerce,  though  the  persons  come  from  another 
state."*  The  state  has  power  to  impose  as  a  condition  to  the  admission  of  cattle 
from  an  infected  district  that  they  remain  in  a  district  free  from  such  conditions 
for  a  certain  time  or  submit  to  inspection  by  the  state  authorities,'*  and  such  a 


70.  In  re  Pooling  Freights,  115   Fed.   588. 

71.  United  States  v.  Smith,  115  Fed.  423. 
The  term  "evasion"  In  an  act  Imposing  a 
fine  for  an  evasion  of  Its  provisions  means 
acts  done,  and  not  those  In  mere  contempla- 
tion of  the  party — Id. 

72.  State  ex  rel.  Pettlgrew  v.  Hall,  109  La. 
290. 

73.  Interstate  Commerce  Commission  v. 
Railroad  Co..   118  Fed.   613. 

74.  In  re  Bergen,  115  Fed.  339. 

78.  State  V.  Intoxicating  Liquors,  96  Me. 
415. 

76.  And  therefore  did  not  have  the  effect 
of  re-enactfng  a  prior  law  having  that  ef- 
fect— Corbln  v.   McConnell,   71   N.  H.   350. 

77.  State  V.  Bengsch.  170  Mo.   81. 

78.  People  V.  Voorhls  (Mich.)  91  N.  W. 
624. 


79,  80,  81.  Act  Mo.  May  4,  1899  (Sess. 
Laws  1899,  p.  228) — Pabst  Brew.  Co.  v.  Cren- 
shaw,  120  Fed.   144. 

82.  People  V.  Voorhls  (Mich.)  91  N.  W. 
624. 

83.  Rev.  Laws,  c.  100,  §  1 — Common- 
wealth V.  Petranlch   (Mass.)   66  N.  E.  807. 

84.  Arbuckle  v.  Blackburn  (C.  C.  A.)  113 
Fed.  616;  Crossman  v.  Lurman,  171  N.  T.  329. 
Vinegar  (Laws  1893,  c.  338,  §§  50-53) — People 
V.  Fruit  Co.,  75  App.  Div.  (N.  T.)  11.  But- 
ter— Hathaway  v.  McDonald,  27  "Wash.  659, 
68    Pac.    376. 

85.  It  was  not  the  Intention  of  the  Fed- 
eral laws  to  overthrow  the  existing  quar- 
antine System — Compagnle  Francaise  D& 
Navigation  A  Vapeur  v.  Board  of  Health,, 
186  U.  S.  380,   46  U.  S.  Lawy.  Ed.  1209. 

SG.     Reid  V.  People,  187  U.  S.  137. 


542 


COMMERCE. 


§2 


law  is  not  objectionable  as  the  regulation  of  interstate  commerce/^  nor  as  laying 
an  impost  or  a  duty  on  imports  or  exports.^*  The  quarantine  laws  may  not  be 
used  to  give  a  monopoly  of  public  grazing  grounds  to  inhabitants  of  the  state.®* 

State  burdens  on  foreign  commerce. — The  state  may  not  tax  imported  goods 
in  original  unbroken  packages  on  which  United  States  duties  have  been  paid.°° 
A  license  tax  on  the  business  of  buying  products  for  export  is  in  fact  a  duty  on 
exports.®^  A  state  law  giving  a  lien  on  vessels  for  repairs  or  supplies  furnished  on 
credit  is  not  objectionable  as  imposing  a  burden  on  foreign  commerce,  though  ap- 
plicable to  vessels  engaged  in  foreign  commerce;  its  effect  is  to  facilitate  commerce 
by  enabling  vessel  owners  to  obtain  the  things  necessary  to  complete  a  voyage."' 

§  2.  Domestic  and  interstate  or  foreign  commerce. — A  car  in  a  train  made 
up  in  one  state  and  destined  to  a  point  in  another  state  is  engaged  in  interstate 
commerce.®^  Where  a  shipment  is  to  a  point  without  the  state,  the  shipment  is 
interstate  commerce  without  regard  to  the  form  of  the  bill  of  lading.®*  The  inter- 
state commerce  act  is  not  concerned  with  the  question  of  contracts  limiting  liabil- 
ity for  negligence  on  shipments  passing  through  different  states.*'  A  shipment 
ib  not  made  domestic  by  the  fact  that  title  was  acquired  from  the  sliipper  by  a  resi- 
dent of  the  state.*' 

Original  pacJcages. — Packages  of  cigarettes  containing  ten  cigarettes  each  and 
given  loose  to  an  express  company  for  transportation  to  another  state  are  not  origi- 
nal packages  so  as  to  prevent  the  operation  of  the  state  laws.*^ 

A  law  requiring  emigrant  agents  to  obtain  a  license  does  not  violate  the  com- 
merce clause  of  the  constitution,  as  that  business  is  not  an  article  of  commerce.*' 

The  assembling  of  articles  within  a  state  at  a  distributing  point  will  make 
such  articles  generally  amenable  to  state  laws,  though  a  portion  is  shipped  beyond 
the  state.** 

A  corporation  owning  elevators  and  trackage  thereto  but  no  rolling  stock  is 
not  engaged  in  interstate  commerce,  though  its  entire  business  consists  in  handling 
grain  in  course  of  interstate  transportation.* 

Laws  requiring  certification  of  engineers  do  not  impose  burdens  on  commerce 
when  applied  to  engineers  on  scows  engaged  in  blasting  in  a  navigable  river.* 

A  flock  of  sheep  driven  across  the  state  by  a  direct  route  is  exempt  from  local 
taxation,  though  the  sheep  while  in  transit  are  permitted  to  support  themselves  by 
grazing  on  the  land  traversed.^ 


87,  88.  Reid  v.  People,  29  Colo.  333,  68 
Pac.    228. 

89.  Equitable  relief  by  Injunction  may  be 
Invoked  by  a  cattle  owner  prevented  from 
bringing'  his  stock  into  a  state  by  a  procla- 
mation of  the  governor  against  the  importa- 
tion of  such  stock  on  the  ground  of  an  ex- 
istence of  an  Infectious  disease  In  an  ad- 
joining state,  where  it  is  shown  that  the 
cattle  in  question  were  free  from  such  dis- 
ease and  that  there  was  no  such  disease  on 
the  ranges  where  they  were  or  had  been, 
and  It  was  shown  that  the  purpose  of  the 
proclamation  was  to  secure  for  the  inhab- 
itants of  the  state  a  monopoly  on  the  graz- 
ing grounds,  and  the  effect  of  the  proclama- 
tion would  work  Irreparable  Injury  to  the 
complaining  parties — Smith  v.  Lowe  (C.  C. 
A.)    121    Fed.    753. 

90.  Appeal  of  Doane  &  Co.,   197   111.  376. 

91.  State  V.  Allgeyer  &  Co.  (La.)  34  So. 
798. 

93.     The    Robert   Dollar,    115    Fed.    218. 

93.  "Within  Act  of  March  2,  1893,  §  4  (U. 
S.  Comp.  St.  1901,  p.  3174)  requiring  Inter- 
state carriers  to  furnish  cars  ■u-ith  grab  irons 


and  hand  holds — Malott  v.  Hood.  201  111.  202; 
and  may  not  be  attached — Wall  v.  Norfolk  & 
W.    R.    Co.    (W.    Va.)    44    S.    E.    294. 

94.  State  V.  International  &  G.  N.  R.  Co. 
(Tex.  Civ.  App.)  71  S.  W.  994;  Gulf,  C.  &  S. 
F.  Ry.  Co.  v.  Ft.  Grain  Co.  (Tex.  Civ.  App.) 
72  S.  W.   419. 

95.  Hughes  V.  Pennsylvania  R.  Co.,  202 
Pa.    222. 

98.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ft.  Grain 
Co.    (Tex.  Civ.  App.)    72  S.  W.   419. 

97.  Cook  V.  Marshall  County  (Iowa)  93  N. 
W.   372. 

98.  State  V.  Napier,   63  S.  C.   60. 

99.  Logs — Diamond  Match  Co.  v.  Ontona- 
gon, 188  U.  S.  82.  Coal — Pioneer  Fuel  Co.  v. 
Molloy  (Mich.)  91  N.  "W.  750.  Hardware 
products — ^American  Steel  &  "Wire  Co.  v. 
Speed    (Tenn.)    75    S.  W.    1037. 

1.  People  V.  Miller,  116  N.  Y.  St.  Rep.  582. 

2.  People  V.  Prillen,  73  App.  Div.  (N.  Y.) 
207. 

3.  Kelley  v.  Rhoads,  188  U.  S.  1,  rev.  9. 
"Wyo.  352,  63  Pac.  935;  L.  Wyo.  1895,  c.  61. 
authorizing  taxation  of  stock  brought  into 
the  state   for  grazing  purposes. 


COMMON   LAW. 


543 


Whether  business  is  interstate  business  within  the  constitution  is  a  question  of 
fact.* 

Sales  hy  orders  taken  by  agent  of  nonresident. — An  agent  taking  orders  for 
the  sale  of  goods  for  a  nonresident  principal,  the  orders  to  be  subject  to  approval 
or  rejection  by  his  principal  and  the  goods  to  be  shipped  directly  to  the  purchasers, 
is  engaged  in  interstate  commerce,"  and  its  character  as  interstate  commerce  is 
not  affected  by  fact  of  shipment  direct  to  the  agent  for  distribution."  The  term 
does  not  apply  to  orders  from  samples  filled  from  goods  not  in  the  original  pack- 
ages but  sent  to  the  agent  in  bulk  from  the  other  state,'^  nor  to  shipments  from  an- 
other state  to  the  owner's  place  of  business  to  be  stored  and  offered  for  sale  by  his 
agent.' 

The  business  of  transporting  lottery  ticlcets  from  one  state  to  another  is  inter- 
state commerce  and  may  be  made  an  offense  under  the  United  States  laws."  Policy 
slips  delivered  to  an  agent  to  be  forwarded  to  headquarters  in  another  state  are  not 
within  the  act  making  it  an  offense  to  transport  lottery  tickets.^" 

Effect  of  use  of  lines  without  the  state  to  connect  points  within  the  state. — 
There  may  be  interstate  commerce  between  two  points  in  the  same  state  where  a  large 
portion  of  the  connecting  railroad  is  outside  the  state.^^  In  Virginia  the  rule  is 
differently  applied  to  telegraph  messages  and  a  telegraphic  message  is  there  con- 
sidered a  domestic  message,  where  the  initial  and  terminal  points  are  both  in  the 
same  state,  though  the  line  passes  in  part  through  another  state  and  the  company 
has  a  relay  office  in  sucb  other  state.^^ 

COMMON  LAW. 

In  general.'^^ — Constitutional  provisions  control  where  there  is  a  conflict  between 
the  constitution  and  the  common  law.^* 

Statutes  in  derogation  of  the  common  law  are  to  be  strictly  construed.^' 
Construction  of  statutes  enacting  common  law. — Statutes  making  the  com- 
mon law  of  England  the  rule  of  decision  in  cases  not  governed  by  the  constitution 
or  statutes  so  far  applicable  do  not  require  adherence  to  the  decisions  of  English 
common  law  courts  before  the  Eevolution,  in  cases  where  subsequent  decisions  either 
English  or  American  contain  better  expositions  of  its  principles.^"  Courts  should 
hesitate  to  declare  established  common  law  doctrines  inapplicable  to  a  state,  unless 
the  inapplicability  is  general,  extending  to  the  whole  or  a  greater  part  of  the  state 
or  to  a  portion  incapable  of  exact  ascertainment.^''  The  common  law  adopted  by 
Illinois  does  not  prohibit  ordinary  labor  on  Sunday.^' 


4.  Commonwealth  v.  Read  Phosphate  Co., 
23  Ky.  L.  R.  2284,  67  S.  W.  45. 

5.  State  V.  Hanaphy,  117  Iowa,  15;  In  re 
Bergen,  115  Fed.  339;  State  v.  Hickox,  64 
Kan.  650,  68  Pac.  35;  Ex  parte  Green,  114 
Fed.  959;  Stockard  v.  Morgan,  185  U.  S.  27,  46 
U.  S.   Lawy.   Ed.    785. 

6.  Stone  v.  State  (Ga.)  43  S.  E.  740;  Cald- 
weU  V.  North  Carolina,  187  U.  S.  622;  Kehrer 
V.  Stewart  (Ga.)  44  S.  E.  854.  Likewise  one 
selling  stoves  shipped  from  another  state  in 
different  parcels  to  be  set  up  by  an  employe 
of  the  manufacturer — Harkins  v.  State  (Tex. 
Cr.  App.)  75  S.  W.  26.  A  license  can  be  re- 
quired from  one  receiving  goods  from  a  non- 
resident shipper  in  the  original  packages  and 
delivered  to  the  purchasers  by  such  so- 
Ifcitor — Collier  v.   Burgin,   130  N.   C.   632. 

7.  In  re  Pringle   (Kan.)   72  Pac.  864. 

8.  Kehrer   v.    Stewart    (Ga.)    44   S.    B.    854. 

9.  Champion  v.  Ames,  188  U.  S.  321. 


10.  Francis  v.  United  States,  188  U.  S. 
375. 

11.  Hanley  v.  Arkansas  City  So.  Ry.  Co., 
187  U.   S.   617. 

12.  Western  Union  Tel.  Co.  v.  Reynolds 
(Va.)  41  S.  E.  856. 

13.  Common  law  marriage.  See  "Mar- 
riage." Forms  of  action  at  common  law. 
See  "Forms  of  Action." 

14.  Chicago  &  E.  R.  Co.  v.  Keith,  67  Ohio 
St.   279. 

15.  The  rule  has  no  application  to  a  re- 
vision of  the  Kentucky  statutes  which  are 
to  he  liherally  coir'triipr!  v/Uh  the  n-'imnsie  of 
promotlns  the  object  In  view — Dillehay  v. 
Hickey,    21    Ky.    L.    R.    1220,    71    S.    W.    1. 

16.  Williams  v.  Miles  (Neb.)   94  N.  W.  705. 

17.  Meng  V.  Coffey  (Neb.)   93  N.  W.  713. 

18.  McCurdy  v.  Commercial  Co.,  102  111. 
App.  120. 


544 


COMMON   SCHOOLS. 


§1 


Presumption  of  prevalence  of  common  law  in  a  sister  state. — In  the  absence 
of  evidence,  there  is  a  presumption  that  the  common  law  prevails  in  a  sister  state,^* 
and  that  it  is  the  same  in  all  the  states.^"     Statutory  modifications  must  be  proved.^^ 

Reference  to  common  law  for  purposes  of  definition. — Though  common  law 
crimes  do  not  exist,  yet  in  seeking  a  definition  of  an  act  forbidden  by  statute  but 
not  defined,  reference  may  be  had  to  the  common  law." 

COMMON  AND  PUBLIC  SCHOOLS.28 


§  5.  Fiscal  Affairs  of  District. — Invest- 
ments; Tuition  and  Fees;  Debt  Limit;  Levy, 
etc.,  of  Taxes;  Bonds;  Orders  and  Warrants; 
Apportionment  of  Funds;  Support  of  Li- 
braries. 

§  6.  Teachers  and  Instruction. — Certifi- 
cates; Contracts;  Employment  of  Relatives; 
Dismissal,  Suspension  and  Reassignment; 
Breach  of  Contract;  Payment  of  Salary;  Pen- 
sions; Teacher's  Liability;  Religious  Instruc- 
tion. 

§  7.     Control   and   Discipline. 

§  8.  Decisions  and  Orders  and  Revlefv 
Thereof. 


§  1.  Right,  Prlvllese  and  Duty  of  Attend- 
ance.— Compulsory  Laws;  Separation  of 
Races;  Vaccination;  Furnishing  Facilities 
and  Conveyances. 

§  2.  School  Districts  and  Sites. — Forma- 
tion and  Alteration;  Independent  Districts; 
High    Schools;    Use   of  Buildings. 

§  3.  Oflicers  and  School  Meeting's. — Boards 
of  Education;  Elections;  Qualifications  of  Of- 
ficers; Duties  and  Liabilities  of  Officers;  Ten- 
ure of  OflSce;  Quo  Warranto;  School  Meet- 
ings. 

§  4.  Property  and  Contracts. — Lands;  Con- 
tracts; Proposals;  Attorneys;  Text-books; 
Ratification  of  Contracts;  Contract  of  Officer 
or  of  District;  Contractor's  Bonds;  Actions. 

§  1.  Eighty  privilege  and  duty  of  attendance. — A  regulation  as  to  admission  to 
public  schools  can  be  questioned  only  by  parents  whose  children  are  affected  there- 
by.^* Where  there  is  a  clear  right  to  admission,  there  is  no  loss  of  the  right  by 
failure  of  a  parent  to  make  affidavit  of  the  facts  showing  the  right.^"^  Admission 
of  a  pupil  denied  school  privileges  under  illegal  requirements  may  be  compelled 
by  mandamus.^® 

Compulsory  school  laws. — Compulsory  education  laws  are  within  constitutional 
provisions  allowing  the  enactment  of  wholesome  and  reasonable  laws  for  the  wel- 
fare of  the  state,^^  and  do  not  interfere  with  the  right  of  parental  control  of  chil- 
dren.-^ Such  laws  do  not  require  attendance  where  injurious  to  health,^*  and 
do  not  prevent  occasional  absence.'" 

Separate  schools  for  races. — Where  the  advantages  are  equal,  the  states  may 
provide  separate  schools  for  children  of  different  races.'^  The  Kansas  law  does 
not  violate  the  provision  of  the  constitution  of  the  United  States  guaranteeing 
equal  protection  of  the  laws,  nor  does  it  invalidate  the  statutory  rule  against  plurality 
of  subjects.'^ 

Vaccination  of  pupils. — ^In  some  states  municipalities  through  their  health 
departments  may  require  vaccination  as  a  condition  to  admission  to  public  schools.^' 


19.  Gaylord  v.  Duryea,  95  Mo.  App.  574; 
Rush  V.  Landers,  107  La.  549.  57  L.  R.  A. 
353.  32  Hen.  VIII,  entitling  the  assignee  of 
a  reversion  to  the  rents,  is  a  part  of  the  com- 
mon law  of  Illinois,  and  in  the  absence  of 
evidence  will  be  presumed  to  be  the  law  of 
Iowa — David  Bradley  &  Co.  v.  Coal  Co.,  99 
111.   App.    427. 

20.  Engstrand  v.  Kleffman,   86  Minn.   403. 

21.  Rush  V.  Landers,  107  La.  549,  57  U  R. 
A.   353. 

22.  State  V.  DeWolfe  (Neb.)  93  N.  W.  746, 

23.  See  Colleges  and  Academies,  for  insti- 
tutions of  higher  learning. 

24.  Board  of  Public  Education  v.  Felder, 
116  Ga.  788. 

25.  State  ex  rel.  Biggs  v.  Penter,  96  Mo. 
App.   416. 


26.  Board  of  Education  v.  Felder,  116  Ga. 
788;  State  ex  rel.  Biggs  v.  Penter,  96  Mo.  App. 
416. 

27,  28,  29.  State  v.  Jackson,  71  N.  H.  552. 
On  the  question  of  excuse  from  attendance, 
under  a  compulsory  attendance  law,  evidence 
that  a  child  was  in  feeble  health  and  was 
kept  from  scliool  on  the  belief  that  attend- 
ance would  affect  her  health,  and  that  the 
board  was  so  informed,  is  admissible — Id. 

30.  State  V.  Jackson,  71  N.  H.  552. 

31.  W'liite  and  colored  children. — Reynolds 
V.  Board  of  Education  (Kan.)  72  Pac.  274; 
Hooker  v.  Greenville.  130  N.  C.  472.  3Iongoll- 
ans. — Wong  Him  v.  Callahan,  119  Fed.  3S1. 

32.  Laws  1879,  p.  163,  c.  81 — Reynolds  ▼. 
Board  of  Education   (Kan.)    72  Pac.   274. 

33.  State  ex  rel.  Freeman  v.  Zimmerman, 
86  Minn.  353. 


SCHOOL  DISTRICTS  AND   SITES. 


545 


In  other  states  boards  of  education  have  this  power  only  when  smallpox  is  prevalent/* 
and  in  such  states  boards  of  health  have  no  greater  powers.^" 

Duty  to  furnish  school  facilities. — A  town  having  provided  sufficient  school 
facilities  on  the  mainland  is  not  compelled  to  build  a  school  house  on  an  island 
adjacent  thereto  for  the  accommodation  of  a  few  children,  where  the  authority  to 
do  so  is  questionable.^® 

Public  conveyances  for  children  attending  school. — An  appropriation  for  trans- 
porting scholars  from  an  island  off  the  coast  to  a  district  on  the  mainland  will 
not  be  compelled,  where  the  access  is  difficult  and  at  times  impossible.^^ 

§  2.  School  districts  and  sites. — Laws  requiring  a  certain  number  of  children 
of  school  age  as  a  condition  of  newly  formed  cities  or  incorporated  towns  becoming 
school  districts  are  constitutional.^®  Such  laws  will  not  affect  a  borough  at  its 
formation  a  part  of  the  school  district  and  not  situated  in  the  township,  so  as  to 
cause  it  to  become  a  part  of  the  toMoiship  school  district.^® 

Formation,  alteration,  consolidation  and  dissolution  of  districts. — A  legislature 
may  create  a  school  district  from  lands  comprising  other  districts  and  give  the 
new  district  the  school  property  within  its  limits.*"  In  the  formation  of  districts, 
care  must  be  taken  that  the  boundary  lines  do  not  encroach  on  other  districts.^^ 
Laws  making  a  town  liable  for  school  property  taken  in  by  annexation  do  not 
apply  to  the  original  incorporation  of  a  town,  as  this  act  does  not  amount  to 
annexation,*^  and  the  property  becomes  the  property  of  the  town,  notwithstanding 
an  indebtedness  thereon.*^  A  school  board  is  without  power  to  alter  a  district  under 
an  act  authorizing  alteration,  but  providing  no  method  of  procedure.**  A  failure 
to  comply  with  the  statute  as  to  the  mode  of  procedure  of  changing  school  dis- 
tricts amounts  to  a  jurisdictional  defect  invalidating  action.*^  Where  the  officers 
acting  on  the  petition  for  consolidation  have  proceeded,  after  being  satisfied  that 
the  petition  was  regularly  signed  and  the  district  has  erected  buildings,  chosen 
school  officers  and  maintained  the  school,  objections  on  the  ground  of  irregularity 
in  obtaining  consent  of  taxpayers  will  not  be  considered.*®  Jurisdiction  to  estab- 
lish a  school  district  on  petition  of  a  majority  of  the  resident  freeholders  of  the 
district  is  not  lost  by  the  fact  that  at  the  time  of  the  hearing  the  number  of  free- 
holders had  increased  so  that  there  was  no  longer  a  majority  signed  to  the  peti- 


34,  35.  Osborn  V.  RusseU,  64  Kan.  507,  68 
Pac.  60. 

36,  37.  Newcomb  v.  Inhabitants  of  Rock- 
port,  183  Mass.  74. 

38.  State  V.  Board  of  Education  (N.  J. 
Law)  53  Atl.  398.  Supplemental  School  Law 
N.  J.  March  22,  1895. 

39.  State  v.  Board  of  Education  (N.  J. 
Law)  53  Atl.  398. 

40.  Attorney  General  ex  rel.  Klea  v.  Low- 
rey  (Mich.)   92  N.  W.  289. 

41.  Rev.  St.  1899,  §  9742 — State  ex  rel. 
School  Dist.  No.  1  v.  Denny,  94  Mo.  App.  559. 
In  determining  the  location  of  a  line  separat- 
ing districts  and  laid  out  by  the  officers  of 
the  two  districts,  the  rules  applicable  to  ordi- 
nary surveys  will  not  be  followed  and  a  line 
acquiesced  in  for  twenty  years  will  be  held 
the  true  boundary  line — Castleman  v.  Trus- 
tees, 24  Ky.  L.  R.  88,  68  S.  W.  17.  Sufficiency 
of  evidence  as  to  the  location  of  disputed 
boundary  in  mandamus  proceedings  to  com- 
pel the  extens'on  of  a  levy — State  v.  Beale, 
90  Mo.  App.  341. 

42.  Maumee  School  Tp.  v.  School  Town, 
159  Ind.  423. 

43.  Maumee  School  Tp.  v.  School  Town, 
159  Ind.  423. 

Cur   Law — 35. 


44.  School  DIst.  No.  110  v.  Palmer,  41  Or. 
485,  69  Pac.   453. 

45.  Huyser  v.  Township  Boards  (Mich.) 
91  N.  W.  1020.  In  determining  whether  the 
action  of  Louisiana  school  directors  in  di- 
viding parishes  into  districts  is  sufficiently 
formal,  regard  must  be  had  as  to  whether  the 
question  is  raised  in  connection  with  the  dis- 
tribution of  the  school  fund  or  with  refer- 
ence to  the  exercise  of  the  taxing  power,  as 
a  greater  degree  of  formality  is  required  in 
the  latter  case — Burnham  v.  Police  Jury, 
107  La.  513.  A  statutory  requirement  that 
arbitrators,  to  pass  upon  the  disputed  bound- 
ary, shall  be  disinterested  resident  taxpayers 
of  the  county,  is  not  complied  with  by  a  cer- 
tificate reciting  the  appointment  of  certain 
voters  of  the  county — State  ex  rel.  Smart  v. 
Wilson  (Mo.  App.)  74  S.  W.  404.  The  altera- 
tion of  a  petition  for  the  establishment  of 
a  graded  school  district,  after  its  approval  by 
the  trustee  of  one  of  the  districts  interested 
as  to  the  location  of  the  site,  entirely  invali- 
dates subsequent  proceedings — Waring  v. 
Bertram   (Ky.)   75  S.  W.  222. 

46.  Howell  V.  Shannon  (Mich.)  90  N.  W. 
410. 


546 


COMMON  SCHOOLS. 


§2 


tion.*^  Proof  of  posting  of  notices  for  an  election  to  change  school  districts  is 
insufficient,  unless  it  shows  that  the  place  of  posting  was  actually  a  public  place.** 
The  notice  should  describe  the  territory  to  be  affected.*'  The  directors  may  not 
open  the  polls  at  the  hour  fixed  by  the  statute  for  closing.^"  There  may  be  no  action 
by  voters  on  a  petition  presented  more  than  a  year  before,  where,  in  the  mean- 
time, adverse  action  has  been  had  by  voters  on  a  petition  for  consolidation  of  a 
larger  area.^^  A  majority  of  the  members  of  a  joint  convention  to  establish  a 
district  from  other  territory  constitutes  a  quorum,  and  their  vote  is  sufficient  for 
the  provisional  establishment  of  the  district.®^  Under  the  ]\Iissouri  law,  it  is  a 
prerequisite  to  the  appointment  of  arbitrators  to  pass  upon  the  necessity  for  a 
division  of  a  school  district  that  voters  of  the  district  to  be  affected  authorize  the 
action.^^  The  board  of  arbitrators  need  not  keep  a  record  of  their  proceedings.^* 
Their  proceedings  are  void  where  it  does  not  appear  that  they  ever  met  and 
considered  the  matter  or  found  a  necessity  for  the  change."*^  After  several  years' 
acquiescence  in  the  result  of  an  election  creating  a  graded  school  district,  the  action 
of  the  electors  will  not  be  invalidated  by  the  fact  that  a  slight  excess  of  territory 
was  included.^®  School  districts  are  not  parties  having  real  interest  allowing  them 
to  attack  an  act  detaching  territory,  on  the  ground  that  taxes  will  be  increased  in 
the  district  and  thus  impair  the  security  in  the  district's  creditors.^^  An  act 
attaching  territory  to  a  district  by  number  is  not  invalid  on  the  ground  that  the 
territory  had  never  been  legally  designated  by  that  number,  where,  as  a  matter  of 
fact,  it  has  long  been  kno^vn  by  that  number  and  had  been  so  designated  in  the 
tax  list.^^  Holdings  as  to  validity  of  statutes  relating  to  the  subject  will  be  found 
in  the  notes.^' 

Independent  school  districts. — An  independent  school  district  has  no  vested 
right  preventing  detachment  of  territory  to  establish  another  independent  school 
district.®"  In  Iowa  an  independent  school  district  will  not  lose  its  corporate 
existence,  though  reduced  by  detachment  of  territory  to  less  than  four  sections,  not- 


47.  Gerber  v.  Board  of  Com'rs  (Minn.)  94 
N.  W.  886. 

48.  Notices  were  posted  near  certain  resi- 
dences without  indicating  that  these  were 
public  places — Huyper  v.  Township  Board 
(Mich.)   91  N.  W.  1020. 

49.  School  Dist.  No.  4  v.  Smith,  90  Mo. 
App.  215. 

50.  1  Ball.  Ann.  Codes  &  Sts.  §  2420 — Peth 
V.  Martin  (Wash.)  71  Pac.  549. 

51.  Peth  V.  Martin  (Wash.)  71  Pac.  549. 

52.  Board  of  Education  of  Van  Buren  Tp. 
V.  Board  of  Education,  67  Ohio  St.  326. 

53.  Rev.  St.  1899.  §  9742 — School  Dist.  No. 
4  V.  Smith,   90  Mo.  App.   215. 

ZiA.  Rev.  St.  1899.  §  9742 — State  ex  rel. 
School  Dist.  No.  1  v.  Denny.  94  Mo.  App.  559. 

55.  State  ex  rel.  School  Dist.  No.  1  v.  Den- 
ny, 94  Mo.  App.   559. 

56.  Collins  V.  Masden.  25  Ky.  L.  R.  81,  74 
S.  W.  720.  The  election  is  not  invalidated  by 
the  failure  of  the  judge  to  sign  the  returns, 
where  they  are  signed  by  the  clerk — Id. 
W^here  the  clerk  of  a  school  election  board 
fails  to  act,  the  judge  in  Kentucky,  with  the 
consent  of  the  voters  present,  may  appoint 
another  to  act  as  clerk — Id. 

57.  Board  of  Education  of  Union  Free 
School  Dist.  No.  6  v.  Board  of  I-Jducation,  76 
App.  Div.   (N.  Y.)   355. 

.".8.  School  Dist.  No.  76  v.  Ryker.  64  Kan. 
612.  68  Pac.  34. 

59.  There  is  no  plurality  of  subjects  In 
the  Kansas  act  allowing  dissolution  of  dis- 
tricts and   attachment   of   the  s'ame   territory 


to  another  district  for  the  purpose  of  forming 
a  graded  school — Ash  v.  Thorp,  65  Kan.  60, 
68  Pac.  1067.  School  districts  are  municipal 
corporations  within  a  constitution  exempting 
municipal  corporations  from  a  provision 
against  creating  corporations  by  special  act 
— Board  of  Education  of  Union  Free  School 
Dist.  No.  6  v.  Board  of  Education.  76  App. 
Div.  (N.  T.)  355.  Sufficiency  of  titles  of  acts 
incorporating  school  districts — Attorney  Gen- 
eral ex  rel.  Kies  v.  Lowrey  (Mich.)  92  N.  W. 
289.  Laws  creating  special  school  districts 
in  certain  townships  violate  the  constitution- 
al provision  that  laws  of  general  nature  shall 
liave  uniform  operation — State  v.  Spellmire, 
67  Ohio  St.  77.  Laws  allowing  a  school  dis- 
trict co-terminous  with  the  city  to  elect  as  to 
the  laws  governing  it  are  not  objectionable 
as  special  or  local  legislation — Commonwealth 
ex  rel.  Martin  v.  Guthrie,  203  Pa.  209.  In 
Michigan  a  school  district  may  be  created  by 
a  local  act  from  a  portion  of  the  territory  em- 
braced in  other  districts,  and  authorizes  the 
inspectors  to  attach  lands  not  disposed  of  to 
other  districts.  Such  laws  are  not  generally 
open  to  the  objection  of  impairing  the  obliga- 
tion of  contracts,  or  as  depriving  the  people 
of  local  self-government,  and  the  law  other- 
wise valid  is  not  entirely  invalidated  by  the 
fact  that  it  fixes  the  site  of  a  school  building 
— Attorney  General  ex  rel.  Kies  v.  Lowrey 
(Mich.)    92  N.  W.  289. 

60.  Rural  Independent  School  Dist.  No.  10 
v  New  Independent  School  Dist.  (Iowa)  94 
N.  W.  284. 


§  3 


OFFICERS  AND  MEETINGS. 


547 


withstanding  a  statutory  provision  requiring  such  districts  to  contain  four  sections.®^ 
The  creation  of  an  adjunct  school  district  in  Nebraska  requires  the  concerted 
action  of  all  the  common  school  districts  embraced  therein,  and  the  question  must 
be  submitted  to  a  vote  in  all  of  such  districts.®^ 

Establishment  of  high  schools. — In  Louisiana  parish  boards  of  school  directors 
may,  with  the  approval  of  the  state  board,  establish  necessary  high  schools  when 
suitable  buildings  and  sites  have  been  furnished,  and  draw  for  their  support  upon 
the  general  school  fund  before  apportionment  to  the  school  districts.®^  The  board 
of  education  can  only  perform  the  official  acts,  where  there  is  a  quorum  thereof 
assembled  after  due  notice.^*  A  meeting  of  two  members  of  a  board  of  education 
at  a  time  and  place  of  which  no  notice  had  been  given  to  other  members  is  an 
illegal  meeting.*' 

Use  of  building  for  other  purposes. — In  Louisiana  public  school  buildings 
may  not  be  used  for  theatrical  performances.®" 

§  3.  Officers  and  school  meetings.  Municipal  boards  of  education. — A  city 
board  of  education  is  generally  a  mimicipal  agency  and  not  a  body  corporate,*'  and 
hence  may  not  call  an  election  to  vote  on  a  tax  proposition  without  authorization 
of  the  city  council,*^  nor  is  it  a  necessary  party  to  an  action  to  enjoin  action  on 
a  text  book  contract.*^  The  New  York  city  board  of  education  is  made  a  distinct 
corporation  by  the  charter,  and  may  be  sued  as  such  for  a  teacher's  salary.'^" 

Selection  of  officers. — In  Texas  the  trustees  of  a  district  comprising  a  town 
or  village  seeking  incorporation  are  to  be  elected  at  the  same  time  that  the  ques- 
tion of  incorporation  is  voted  on.''^  Laws  making  incorporated  cities  municipal 
school  districts,  with  power  to  elect  trustees  at  a  meeting  in  a  specified  month,  do 
not  destroy  the  old  board  of  trustees  in  cities  afterwards  incorporated,  as  such 
laws  refer  to  existing  cities,  and  it  is  the  policy  of  the  law  to  retain  experienced 
school  officers  if  possible,'^^  and  a  city  council  acting  under  such  laws  in  attempting 
to  fill  a  vacancy  must  designate  the  vacancy  intended  to  be  filled.'^'  In  Kentucky 
the  members  of  the  board  of  education  of  cities  of  the  fourth  class  must  be  elected 
by  viva  voce  vote.^*  Under  the  laws  of  Wisconsin  the  office  of  county  superintendent 
is  a  legislative  one,  and  the  legislature  may  fix  the  qualifications  and  prohibit  the 
placing  of  the  name  of  an  ineligible  candidate  on  the  ballot.'^' 

Qualification  of  officers. — Laws  requiring  a  director  to  be  a  resident  tax- 
payer and  qualified  voter  do  not  intend  that  he  must  be  a  resident  taxpayer  of 
the  district  in  which  he  is  elected.'^* 

Duties  and  liabilities  of  officers. — It  is  a  duty  to  furnish  certified  copies  of 
school  records  where  the  statute  imposes  a  penalty  on  the  district  officer  for 
failure  to  furnish  the  same,'^^  and  a  school  officer  may  not  excuse  his  refusal 
to  furnish   same  on  the  ground  that  the  statute   declares   the   copy  admissible 


61.  Rural  Independent  School  Dist.  No.  10 
V.  New  Independent  School  Dist.  (Iowa)  94 
N.  W.   284. 

62.  State  ex  rel.  Davis  v.  Board  of  Com'rs 
(Neb.)   95  N.  W.  6. 

63.  Andrus  v  Parish  Board.  108  La.  386. 
61, 65.     Cunningham  v.  Board  of  Education 

(W.  Va.)  44  S.  B.  129. 

66.  Sugar  V.  Monroe,  108  La.  677,  59  L.  R. 
A.   723. 

67,  68.  Ocorr  &  Rugg  Co.  v.  Little  Falls, 
77  App.  Div.    (N.  T.)    592. 

69.  Madden  v.  Kinney  (Wis.)  93  N.  W.  535. 

70.  Gunnison  v.  Board  of  Education,  80 
App.  Div.   (N.  Y.)    480. 


71.  Hillebrandt  v.  Devlne  (Tex.  Civ.  App.) 
72  S.  TV.   266. 

72.  Burns'  Rev.  St.  1901,  §§  3467.  5914.  5915 
— State  V.  Ogan,  159  Ind.  119.  The  course  of 
constitutional  and  statutory  enactment  indi- 
cates a  purpose  to  make  the  school  system  a 
centralized  and  not  a  localized  one — Id.  The 
entire  obliteration  of  the  existing  district 
school  organization,  Is  not  shown  by  the  fact 
that  the  succeeding  corporation  Is  called  a 
school  city — Id. 

73.  State  V.  Ogan,  159  Ind.  119. 

74.  Elliott  V.  Burke,  24  Ky.  L.  R.  292,  68 
S.  W.  445. 

75.  Fordyce  v.  State.  115  Wis.  608. 

76.  State  v.  Fasse  (Mo.  App.)  71  S.  W.  745. 

77.  7S.     Musback  v.  Schaefer,  115  Wis.   357. 


548 


COMMON  SCHOOLS. 


§  3 


as  evidence/®  School  directors  are  personally  liable  for  the  funds  lost  to  the 
school  district  through  their  misconduct/'  and  suit  therefor  may  be  brouglit 
by  a  resident  patron  for  the  use  of  himself  and  other  patrons,  and  for  the  school 
district. ®°  In  iN'ebraska,  in  counties  of  less  than  two  thousand  school  population, 
the  number  of  days  which  a  superintendent  may  be  employed  in  the  discharge  of 
his  official  duties  is  left  to  his  own  sound  discretion.^^  A  county  superintendent 
with  power  to  order  a  census  to  be  retaken,  where  he  believes  the  census  officei- 
has  not  reported  a  correct  list  of  school  children,  may  not  correct  the  lisi 
himself.*^  A  New  Hampshire  moderator  refusing  to  poll  the  voters  in  ac- 
cordance with  law  is  liable  to  a  penalty.®'  Action  of  boards  in  matters  within 
their  jurisdiction  may  not  be  controlled  by  injunction.®*  A  board  of  trustees 
may  not  use  funds  to  erect  a  building  at  a  particular  site  after  the  county 
board  has  decided  on  a  different  site.®^ 

The  treasurer  may  deposit  funds  in  a  solvent  banlc  to  his  credit  as  treasurer.®'"' 

Tenure  of  office. — In  Kentuclcy  a  city  of  the  fourth  class  is  without  power 
to  fill  vacancies  in  the  board  of  education,  and  the  members  hold  over  until 
their  successors  have  been  validly  elected.®^  An  act  creating  a  school  district- 
otherwise  valid,  is  not  invalidated  by  the  fact  that  it  appoints  the  first  trustees 
cind  fixes  their  terms.®®  The  constitutional  requirement  of  uniformity  in  the  public 
school  system  is  violated  by  an  act  appointing  designated  persons  as  trustees  of 
public  schools  in  a  certain  town  for  a  term  of  20  years  with  power  not  given 
trustees  of  other  common  schools.^^  The  action  of'  a  superintendent  in  changing 
boundaries  will  not  oust  trustees  living  in  the  districts  so  formed.'*"  A  statute 
allowing  a  trustee  to  hold  office  until  the  appointment  of  his  successor  does 
not  apply  to  one  removed  from  office.®^ 

Quo  warranto  to  test  right  to  hold  office. — Trustees  of  public  schools  aro 
officers  within  the  statutes  allowdng  quo  warranto  against  persons  unlawfully 
holding  an  office.®^ 

School  meetings. — Laws  requiring  notice  of  the  annual  school  meeting  to 
specify  the  propositions  to  be  submitted  to  the  voters,  and  requiring  the  postinir 
of  the  notice  by  the  secretary,  are  mandatory  and  not  directory,  and  require  notice 
as  to  any  special  propositions.®®  In  Arkansas  the  electors  at  a  school  district  meet- 
ing may  vote  to  dispense  with  the  school  for  the  year,  and  apply  the  proceeds  to  the 
building  of  a  school  house.®*  In  Nebraska  the  site  of  a  school  house  can  only  be 
changed  at  the  annual  school  meeting."^  A  divorced  woman  denied  the  custody  of 
children  cannot  vote  under  a  law  conferring  school  suffrage  on  widows  and  spinsters 
having  custody  of  children.®*  In  Arkansas  the  county  judge  sitting  alone  and  not 
the  quorum  court  opens  the  returns  on  a  text  book  election.®^     A  committee  of  a 


79.     Shannon's  Code,  §  1426 — Finney  v.  Gar- 
ner  (Tenn.)    71  S.  "W.  592. 

50.  Finney  v.  Garner  (Tenn.)  71  S.  W.  592. 

51.  Chase  County  v.   KeUey    (Neb.)    95  N. 
W.  865. 

52.  State  V.  Wedge  (Nev.)  72  Pac.  817. 
Of  $30 — State  v.  Waterhouse,  71  N.  H. 


S3. 

488. 

84. 
435. 

85. 

86 


Board  of  Education  v.  Holt,  51  "W,  Va. 


Sligh  V.  Bowers,  62  S.  C.  409. 

„„.  And  is  not  guilty  of  embezzlement  by 
depositing  school  funds  in  a  bank  within  an 
act  making  it  embezzlement  for  a  school  offi- 
cer to  loan  school  funds  without  authority, 
as  the  deposit  is  not  a  loan — Hunt  v.  Hopley 
(Iowa)   95  N.  W.  205. 

ST.  Elliott  V.  Burke,  24  Ky.  L.  R.  292,  68 
S.  W.  445.     An  appointment  to  a  vacancy  in 


a  school  board  cannot  be  made  prior  to  the 
time  the  office  is  vacated — Shepherd  v.  Gam- 
bill  (Ky.)   75  S.  W.  223. 

88.  Attorney    General    v.    Lowrey    (Mich.) 
92  N.  W.  289. 

89.  Ellis  V.  Greaves   (Miss.)    34  So.  81. 

90.  Farley  v.  Gilbert,  24  Ky.  L.  R.  2109.  72 
S.  W.  1098. 

91.  Shepherd    v.    Gamblll    (Ky.)    75    S.    W. 
223. 

92.  Ellis  V.  Greaves  (Miss.)  34  So.  81. 

93.  Code    1897,    §    2746 — Goerdt    v.   Trumm 
(Iowa)   91  N.  W.  1067. 

94.  Hale  v.  Brown,  70  Ark.  471. 

9.1.     School  Dist.  No.  34  v.  Stairs  (Neb.)   95 
N.  W.  492. 

96.  Ball  V.   Cawood,   23  Ky.  L.  R.   2315,   67 
S.  W.  37. 

97.  Acts    1899,    p.    147,    §    3 — Firestone    v. 
White  (Ark.)   71  S.  W.  250. 


§  4 


PROPERTY  AND  CONTRACTS. 


549 


school  district,  meeting  to  investigate  the  financial  affairs,  are  not  school  officers 
within  the  laws  allowing  school  officers  their  expenses  in  suits  against  them  growing 
out  of  the  performance  of  their  official  duties.®^ 

§  4.  Property  and  contracts.^^  School  lands. — Portions  of  the  public  do- 
main held  for  school  or  educational  endowment  are  treated  as  public  lands.^ 
Boards  charged  with  the  investment  of  a  permanent  school  fund  have  power  to 
assign  mortgages  to  secure  loans  of  such  funds,  though  the  power  to  assign 
is  not  expressly  given  by  the  laws.^  In  Texas  school  trustees  may  not  convey  lands 
belonging  to  school  districts,  unless  authorized  by  an  order  of  the  commissioners' 
court.*  A  statute  granting  a  right  of  way  to  railroads  over  lands  belonging  to 
the  state  does  not  embrace  public  school  lands  of  the  state.*  In  Washington 
school  lands  are  liable  to  assessment  for  drainage  purposes;^  otherAvise  in  North 
Dakota.®  Under  laws  requiring  trustees  to  take  a  fee  simple  title  to  lands  in 
use  for  school  sites,  a  tax  may  not  be  levied  to  pay  for  repairs  on  a  building 
owned  Jointly  by  the  district  and  other  parties  with  a  reversionary  interest 
in  favor  of  their  grantor.'^ 

Validity  of  contracts  in  general. — In  some  states  school  townships  may  contract 
for  school  supplies,  though  there  is  no  contingent  fund  on  hand  at  the  time.^  Where 
all  the  members  of  a  school  board  are  present,  a  contract  by  the  school  township 
may  not  be  attacked  on  the  ground  that  no  notice  of  a  special  meeting  was 
given.®  The  Nebraska  laws  allow  a  director  with  the  consent  of  a  moderator  to 
contract  for  repairs  during  vacation,^  °  and  it  is  not  necessary  that  the  contract 
be  entered  into  at  the  regular  meeting  of  the  school   board.^^ 

Under  laws  invalidating  contracts  in  which  school  officers  are  pecuniarily 
interested,  a  district  is  not  liable  on  a  warrant  in  favor  of  trustees  for  repairs.^^ 

Laws  allowing  districts  to  extend  temporary  aid  to  impoverished  school 
children  do  not  authorize  a  school  corporation  to  contract  a  debt  on  behalf  of 
the  county  with  a  third  person  for  furnishing  supplies  to  destitute  scholars.^' 

The  acceptance  of  a  void  warrant  by  the  assignee  of  one  furnishing  school 
supplies  will  not  deprive  him  of  his  right  to  insist  on  the  original  contract.^* 

A  text  book  bond,  conditioned  that  they  should  be  sold  at  the  lowest  retail 
price  fixed  by  the  publishers  anywhere  in  the  United  States,  is  not  violated  by 
sales  at  a  less  price  in  another  state,  where  the  publishers  had  not  sold  them 
at  a  price  below  that  made  to  the  complaining  state.^^ 

Proposals. — Unless  the  statutes  require  school  boards  to  advertise  for  pro- 
posals and  award  the  contract  to  the  lowest  bidder,  the  board  is  not  restricted 
to  that  method.^"  A  school  board  may  delegate  to  a  committee  the  duty  of  pre- 
paring specifications  for  contracts,  and  authorize  it  to  conduct  the  negotiations.*^ 


98.  Consol.  School  Laws,  §  264 — People  v. 
Skinner,  74  App.  Dlv.   (N.  Y.)   58. 

99.  Teachers'  Contracts,  see  post,  §  6.  Ex- 
emption of  school  property  from  taxatlcjn, 
see  "Taxes." 

1.  See  "Public  Lands." 

2.  Lawrey  v.  Sterling,  41  Or.  518,  69  Pac. 
460. 

3.  Crouch  V.  Posey  (Tex.  Civ.  App.)  69  S. 
W.  1001. 

4.  Texas  Cent.  R.  Co.  v.  Bowman  (Tex. 
Civ.  App.)   75  S.  W.  556. 

5.  State  V.  Henry,  28  Wash.  38,  68  Pac.  368. 

e.     Erickson  v.   Cass  County,  11  N.   D.   494. 

T.  Ky.  St.  1899,  §  4437— Dawson  v.  Trus- 
tees Common  School  Dist.  No.  40,  24  Ky.  L. 
R.    2027.   72  S.  W.   806. 

8.  Johnson  v.  School  Corp.  of  Cedar,  117 
Iowa,  319. 


9.  Hanna  v.  Wright,  116  Iowa,  275.  In 
Missouri  an  action  of  the  school  board  at  a 
meeting  thereof  whether  In  obedience  to  no- 
tice or  by  accident  is  valid,  though  there  is 
a  failure  to  preserve  the  minutes  of  the  pro- 
ceedings— Decker  v.  School  Dist.  No.  2  (Mo. 
App.)  74  S.  W.  390. 

10,  11.  Leonard  v.  State  (Neb.)  93  N.  W. 
988. 

12.  Miller  v.  Sullivan  (Wash.)  72  Pac.  1022. 

13.  Acts  1899,  p.  550,  §  6 — Board  of  County 
Com'rs  V.  Palk,  29  Ind.  App.   683. 

14.  Johnson  v.  School  Corp.  of  Cedar,  117 
Iowa,    319. 

15.  Mills  V.  Myers,  24  Ky.  L.  R.  971,  70  S. 
W.  412. 

16.  Kraft  V.  Board  of  Education,  67  N.  J. 
Law,   512.     They  may  not  be  required  to  let 


550 


COMMON  SCHOOLS. 


§4 


Employment  of  attorneys:. — School  districts  may  employ  attorneys  to  prose- 
c\ite  suits  for  the  district,  and  an  allowance  for  such  service  is  proper.^*  Under 
a  charter  provision  requiring  a  city  attorney  to  defend  suits  against  the  board 
of  education,  such  board  may  not  employ  a  private  attorney.^*  Nor  is  the 
board  authorized  to  employ,  imder  a  provision  giving  them  power  to  hire  teachers, 
janitors  and  other  employes.^" 

Contracts  for  text  books. — A  law  authorizing  a  state  board  to  contract  for 
text  books  for  a  term  of  years  is  not  objectionable  as  creating  a  monopoly.-^ 
In  Wisconsin  a  city  board  of  education  may  select  text  books  without  regard 
to  the  city  eouncil,^^  and  there  is  a  sufficient  adoption  within  a  law  prohibiting 
a  change  within  five  years,  by  the  passage  of  a  resolution  for  the  purchase  and  use 
of  certain  text  books. ^'  Laws  requiring  uniformity  of  text  books  refer  only  to 
the  same  grade  and  do  not  require  that  all  text  books  on  the  same  subject  used 
in  the  different  grades  should  be  prepared  by  the  same  author.^*  The  laws 
governing  the  reception  of  bids  for  furnishing  school  books  in  Utah  are  directory 
only,  and  a  failure  to  literally  comply  with  its  terms  is  not  important.^^  Laws 
providing  that  a  school  township  may  purchase  books  and  shall  levy  a  contingent 
fund  therefor  do  not  require  contingent  funds  on  hand  as  a  condition  to  the  purchase 
of  such  books.'^" 

Ratification  of  action  of  officers. — There  may  be  no  recovery  of  moneys  ex- 
pended on  a  contract  irregularly  entered  into  where  it  has  been  fully  performed 
by  both  parties  and  there  is  no  claim  of  corrupt  or  fraudulent  action  by  the 
officers,  and  the  amount  paid  was  not  excessive.^''  The  defeat  of  a  motion  not  to 
accept  the  articles  bought  amounts  to  an  approval.^* 

Whether  contract  that  of  the  district  or  the  members  of  board. — A  district 
will  not  be  liable  on  contracts  made  by  the  trustees  in  their  individual  capacity 
vnth.  reference  to  repairs  on  the  school  house.^'  A  contract  for  supplies  is  valid, 
where  signed  by  a  majority  of  the  board,  the  contract  providing  that  a  majority 
should  sign,  and  is  not  an  individual  contract  of  the  signers.^"     There  is  a  con- 


the  contract  to  union  labor  thoug-h  advertise- 
ment so  specifies — Id. 

17.  Kraft  V.  Board  of  Education,  67  N.  J. 
Law,  512. 

18.  State  V.  Aven,  70  Ark.  291. 

19.  Denman  v.  V\"ebster  (Cal.)  70  Pac.  1063. 
A  refusal  of  the  attorney  to  defend  will  not 
authorize  the  employment  of  a  private  attor- 
ney where  the  charter  authorizes  the  mayor 
to  suspend  an  official  refusing  to  discharge 
the  duties  of  his  office — Id. 

20.  Denman  v.  Webster  (Cal.)  70  Pac   1063. 

21.  Rand.  McNally  &  Co.  v.  Hartranft,  29 
Wash.  5'Jl.  70  Pac.  77.  The  laws  of  Washing- 
ton authorize  the  state  board  to  contract  for 
furnishing  text  books  for  a  term  of  years; 
a  later  law  organizing  a  county  board,  au- 
thorized such  board  to  enter  into  a  text  book 
contract  for  a  term  of  five  years.  Held  not 
an  impairment  of  the  contract  by  the  state 
board  within  the  constitution  against  the 
laws  impairing  the  obligation  of  contracts — 
Id. 

22.  Madden  v.  Kinney  (Wis.)  93  N.  W. 
535. 

23.  Attorney  General  v.  Board  of  Educa- 
tion (Mich.)  95  N.  W.  746.  The  time  is  com- 
puted from  the  date  of  the  resolution  of 
adoption,  and  not  from  the  time  the  text 
books  are  in  use  by  the  school — Id. 

24.  Attorney  General  v.  Board  of  Educa- 
tion   (Mich.)    95  N.  W.   746. 

25.  Rev.  St.  §  1856 — Tanner  v.  Xelson,  25 
Utah,   226,   70  Pac.   984.     There   is  a  substan,- 


tial  compliance  w^ith  laws  requiring  a  con- 
vention to  meet  and  publicly  open  proposals 
for  furnishing  text  books  by  a  public  open- 
ing a:id  the  reading  of  introductory  portions 
of  the  bids  and  accompanying  communica- 
tions, and  their  reference  to  committees, 
where  the  bids  are  voluminous  and  contain- 
ing large  catalogues  and  price  lists — Id. 
Where  a  convention  for  the  adoption  of  uni- 
form text  books  bases  a  bond  on  the  amount 
required  for  furnishing  a  certain  class  of 
text  books,  it  is  no  objection  that  they  fail 
to  fix  the  amount  of  bonds  for  furnishing 
other  books;  the  same  method  will  apply — 
Id. 

26.  Code,  §  2783 — Hanna  v.  Wright,  116 
Iowa,  275. 

27.  Kagy  v.  Independent  Dist.  of  Vv'est 
Des  Moines,  117  Iowa,  694;  Johnson  v.  School 
Corp.  of  Cedar,   117  Iowa,   319. 

28.  Johnson  v.  School  Corp.  of  Cedar,  117 
Iowa,  319.  There  is  a  ratification  of  an  un- 
authorized contract  for  school  supplies, 
where  the  goods  were  accepted  and  used 
without  objection  and  payment  made  there- 
on, and  no  objection  was  made  to  the  con- 
tract when  brought  before  a  subsequent  an- 
nual meeting — Haney  School  Furniture  Co. 
V.  School  Dist.  No.   1   (Mich.)    94  N.  W.   726. 

29.  Moore  v.  Leonard  Independent  School 
Dist.    (Tex.   Civ.  App.)    74  S.  W.   324. 

30.  Johnson  v.  School  Corp.  of  Cedar,  117 
Iowa,  319. 


§  5 


FISCAL  AFFAIRS. 


551 


tract  with  the  school  district  by  its  directors  and  not  with  directors  as  individuals, 
where  the  contract  recites  that  the  directors  were  parties  of  the  second  part  and 
the  parties  in  an  action  on  the  contract  stipulated  that  the  directors  had  made 
the  contract,  and  the  building  on  its  completion  was  accepted  by  such  board.^^ 

Contractor's  bonds. — Sureties  on  a  contractor's  bond  payable  to  the  directors, 
and  not  to  the  school  district  are  not  relieved  from  liability  by  that  fact,  as  the  school 
directors  acted  in  their  representative  capacity,^^  nor  by  an  unauthorized  attempt 
to  cancel  the  bond  so  that  the  contractor  might  receive  the  insurance  on  a  build- 
ing destroyed  while  in  course  of  construction.^^  Subcontractors  are  not  included 
in  a  statute  requiring  contractors  for  the  erection  of  public  buildings  to  give 
bonds  to  secure  amounts  due  mechanics  and  laborers.^* 

Actions  on  contracts. — There  is  no  joint  liability  authorizing  a  joinder  as 
defendants  of  a  town  and  a  school  district,  on  the  ground  that  the  town  is  the 
successor  of  the  school  district  on  its  dissolution.^^  A  board  of  education  sued 
for  breach  of  a  contract  may  not  defend  on  the  ground  that  public  funds  could 
not  be  used  to  pay  damages,^"  and  has  the  burden  of  establishing  a  defense 
of  ultra  vires  in  an  action  for  breach  of  contract.^^ 

§  5.  Fiscal  affairs  of  district.  Investment  of  school  funds. — Under  the 
constitution  of  Nebraska  authorizing  the  investment  of  the  school  fund  in  bonds 
or  state  securities,  bonds  of  other  states  running  not  less  than  thirty  nor  more  than 
f orty^  years  with  three  per  cent,  interest  may  be  purchased.^® 

Tuition  and  incidental  fees. — In  South  Carolina  the  trustees  of  gi-aded  schools 
may  not  charge  incidental  fees.^^  New  Hampshire  towns  not  being  authorized 
to  maintain  high  schools  and  having  no  school  boards  are  not  liable  under  a  law 
requiring  towns  not  maintaining  high  schools  to  pay  the  tuition  of  children 
therein  attending  schools  in  another  town  or  city.^**  Laws  allowing  children  liv- 
ing within  one-half  mile  of  the  city  limits  to  attend  the  nearest  city  school  free  of 
tuition  do  not  violate  the  constitutional  provision  against  depriving  one  of  prop- 
erty without  due  process  of  law.^^  In  an  action  on  a  tuition  note  given  by  a 
parent,  it  is  proper  to  submit  the  question  whether  the  note  was  given  as  a  com- 
promise of  a  doubtful  claim.'*^ 

Debt  limit. — A  contract  in  excess  of  the  debt  limit  is  valid  to  the  extent 
of  the  limit."  For  the  purpose  of  determining  whether  a  debt  limit  has  been 
exceeded,  a  contract  is  considered  to  have  been  created  on  the  day  the  contract 
was  made.*^  Prior  to  action  by  the  state  board  of  equalization,  an  assessment 
is  not  complete,  so  that  the  question  whether  the  debt  limit  has  been  exceeded 
must  be  determined  by  the  tax  roll  of  the  preceding  year.'*^  An  unexpended 
balance  on  hand  will  not  sustain  a  debt  in  excess  of  the  limit  unless  such  balance 
to  the  extent  of  the  excess  is  appropriated  for  payment  of  the  debt.*®  Where 
the  district  indebtedness  exceeds  the  constitutional  limit  the  levy  to  pay  the  debt 


31.  vVabash  R.  Co.  v.   People.   202  1\\.   9. 

32,  33.  Finney  v.  Garner  (Tenn.)  71  S,  W. 
592 

34.  Comp.  St.  1901,  c.  54,  art.  2,  §  1 — 
Fidelity  &  Deposit  Co.  v.  Parkinson  (Neb.) 
94  N.  W.  120. 

35.  Cunningham  v.  Town  of  Orang-e,  74 
Vt.   115. 

36.  37.  Morgan  v.  Board  of  Education, 
136  Cal.  245,  68  Pac.  703. 

.38.     State  V.  Stuefer  (Neb.)   92  N.  W.  646. 

39.  Young  V.  Trustees  of  Fountain  Inn 
Graded  School,   64   S.   C.   131. 

40.  Union  School  Dist.  v.  Dist.  No.  20,  71 
N.  H.  269.  The  term  "town"  is  held  to  in- 
clude school   districts — Id. 


41.  Edmondson  v.  Board  of  Education, 
108  Tenn.  557. 

42.  School  Dist.  of  Barnard  v.  Matherly, 
90  Mo.  App.    403. 

43.  Wabash  R.  Co.  v.  People,  202  111.  9. 

44.  Wabash  R.  Co.  v.  People,  202  111.  9. 
The  acceptance  of  a  bid  to  construct  school 
buildings  "will  not  amount  to  an  increase  of 
the  district's  Indebtedness,  it  being  under- 
stood at  the  time  that  a  formal  contract 
should  be  afterwards  signed  and  the  con- 
tractor furnish  a  bond — Baltimore  &  O.  S. 
W.  R.  Co.  V.  People,  195  111.  423. 

45.  46.  Wabash  R.  Co.  v.  People,  202  III. 
9. 


552 


COMMON   SCHOOLS. 


§   5 


may  be  defeated.''^  A  tax  for  payment  of  the  valid  portion  of  a  building  contract 
is  not  rendered  invalid  by  the  subsequent  issue  of  bonds  to  pay  the  invalid  portion 
of  such  contract.** 

Levy  and  collection  of  taxes. — A  tax  refused  at  an  annual  meeting  may  be 
levied  at  a  later  special  meeting  called  for  that  purpose.*®  A  levy  is  not  invalid 
because  of  the  failure  of  the  school  board  to  submit  the  proposed  rate  to  the 
meeting.^**  A  levy  will  be  defeated  for  unwarranted  interference  in  the  election 
by  the  school  officers.^^  Councilmen  approving  school  tax  levies  made  by  a 
board  of  education  act  as  ex  officio  members  of  the  board  and  not  as  municipal 
officers."^^  A  school  board  may  levy  an  annual  tax  for  the  interest  of  bonds  and 
sinking  fund  without  the  consent  of  a  school  meeting."^'  On  division  of  a  school 
district,  a  county  board  in  Nebraska  may  levy  the  whole  amount  necessary  for 
both  districts  within  the  statutory  limit,  but  having  failed  to  do  so  by  levying 
on  the  basis  of  a  district  certificate,  each  district  is  entitled  only  to  the  amount 
levied  in  its  favor  and  no  more.^* 

An  election  as  to  a  levy  to  establish  a  graded  school  is  not  rendered  invalid  by 
a  variance  in  the  order  as  to  the  term  at  which  the  petition  was  filed,  where  the 
record  is  correct  and  the  recital  in  the  order  a  mistake,^^  and  the  certificate  of 
commissioners  comparing  the  vote  at  such  election  need  not  show  that  notice 
was  given,  as  it  is  a  part  of  the  record.^^  An  objection  on  this  score  will  be 
disregarded,  where  the  school  has  been  carried  on  for  several  years  without  any 
objection.^^ 

A  school  tax  may  be  levied  on  a  statement  reciting  that  the  purpose  of  the 
tax  is  to  meet  current  and  running  expenses.***  Where  the  levy  designates  the 
amount  necessary  for  building  and  educational  purposes,  a  separation  of  the 
amount  for  building  and  for  sites  and  a  specification  of  items  under  the  amount 
intended  for  educational  purposes  is  not  necessary.^®  The  failure  of  the  district 
clerk  to  deliver  to  selectmen  an  attested  copy  of  the  vote  of  the  district  to  raise 
money  will  not  invalidate  the  levy,  as  the  statutory  provision  is  directory  and  not 
mandatory  as  to  the  time.^° 

A  general  act  limiting  a  levy  for  school  purposes  does  not  apply  to  an  inde- 
pendent school  district.^^  The  Nebraska  Act  limiting  a  levy  and  requiring  certifi- 
cation of  the  tax  to  the  county  clerk  has  reference  to  taxes  levied  by  the  electors 
and  does  not  apply  to  taxes  certified  to  county  authorities  by  the  county  superin- 
tendent on  the  creation  of  a  new  school  district.*^  Levies  to  pay  interest  and 
principal  of  bonds  are  not  within  laws  limiting  levies  for  educational  and  build- 
ing purposes.^^ 

In  New  York  the  school  tax  list  and  warrant  and  renewal  thereof  requires 
the  Joint  action  of  the  entire  board  of  trustees.'* 


47.  Baltimore  &  O.  S.  W.  R.  Co.  v.  People, 
195  111.  423. 

48.  Wabash  R.  Co.  v.  People,  202  111.  9. 

49.  Stanton  v.  Board  of  Education  (N.  J. 
Law)    53   Atl.    236. 

50.  Benton   v.   Scott,    168   Mo.    378. 

51.  Officers  suggested  amount  to  be  voted 
— Bennett  v.   Staples   (La.)   34  So.   801. 

52.  School  Dist.  No.  76  v.  Ryker,  64  Kan. 
612.   68  Pac.   34. 

53.  Rev.  St.  1899,  §§  9757,  9758 — Benton  v. 
Scott,  168  Mo.  378.  The  laws  of  Missouri 
authorizing  a  levy  to  pay  interest  on  school 
bonds  and  to  create  a  sinking  fund  are  not 
limited  to  bonds  issued  prior  to  the  con- 
stitution of  1875  or  issued  to  refund  an 
indebtedness   existing  at  that  time. 


54.  School  Dist.  No.  1  v.  McCormick  (Neb.) 
93  N.  W.  956. 

55,  56,  57.  Trustees  of  Fordsville  Graded 
School  Dist.  No.  96  v.  McCarty.  24  Ky.  L. 
R.    164,    68   S.   W.   147. 

58.  Stanton  v.  Board  of  Education  (N.  J. 
Law)   53  Atl.  236. 

59.  Koelling  V.  People,  196  111.  353. 

60.  Pub.  St.  c.  90,  §  18— Smith  v.  Swain, 
71  N.   H.   277. 

61.  State  V.  Babcock,  87  Minn.   234. 

62.  School  Dist.  No.  1  v.  McCormick 
(Neb.)   93  N.  W.  956. 

63.  Kurd's  Rev.  St.  1899,  c.  122,  §  202 — 
Baltimore  &  O.  S.  W.  R.  Co.  v.  People,  195 
111.   423. 

64.  Beck  V.  Kerr,  75  App.  Div.  (N.  T. ) 
173. 


^  5 


FISCAL  AFFAIRS. 


553 


On  proceedings  to  enforce  a  school  district  tax,  the  certificate  may  be  amended 
by  changing  the  date  in  a  certificate  to  conform  to  that  of  the  board  meeting/^  and 
an  omitted  signature  may  be  supplied.*^  An  objection  that  the  levy  is  to  pay  an 
unconstitutional  debt  may  be  raised  in  such  proceedings.®^  Taxes  having  once 
been  paid,  the  court  may  not  disallow  them  in  a  proceeding  for  a  judgment  on 
the  levy  of  other  taxes.®^  Eesidents  of  a  school  district  objecting  to  a  tax,  on 
the  ground  that  the  boundaries  are  so  fixed  as  to  make  an  attendance  of  the  school 
children  difficult,  must  show  that  their  own  children  are  incommoded  or  their  taxea 
are  increased  by  the  manner  in  which  the  boundaries  have  been  fixed.®®  Under 
the  laws  authorizing  the  acceptance  of  school  warrants  for  taxes,  the  warrant 
must  conform  to  the  law  governing  the  issuance  of  such  warrants,  and  does  not 
authorize  the  acceptance  of  a  warrant  payable  in  the  future.""  In  mandamus 
proceedings  to  compel  the  payment  of  taxes  on  disputed  territory  to  the  district, 
the  court  is  without  power  to  compel  payment  by  a  collector,  unless  the  taxes 
were  levied  by  such  district.'^^ 

School  bonds. — In  South  Carolina  a  town  may  issue  bonds  for  the  erection 
of  a  school  house  within  the  municipality,  though  the  school  be  controlled  by 
school  authorities.''^  Bonds  will  not  be  invalidated  for  confusion  between  a 
number  and  a  name  applied  to  the  district  issuing  the  bonds,  where  both  terms  have 
been  indiscriminately  applied.''^  A  school  district  in  Wisconsin  is  authorized  to 
borrow  money  to  pay  school  orders  issued  in  compromise  of  suit  against  it  only 
where  there  is  an  unusual  exigency.'^*  Under  laws  requiring  the  notice  of  the  sale 
of  bonds  to  give  the  amount  of  the  bonds  to  be  sold,  time  to  run,  where  payable,  the 
nature  of  the  option  to  redeem,  etc.,  a  notice  naming  the  rate  of  interest  the  bonds 
were  to  draw  is  not  void,  though  it  does  not  ask  the  bidders  to  name  the  rate  at  which 
they  would  accept  such  bonds.'"'  Bonds  issued  for  the  payment  of  orders,  void  for 
want  of  power  in  the  directors  to  settle  claims  or  issue  the  orders,  are  not  refunding 
bonds  within  an  act  providing  that  no  tax  is  required  to  be  levied  as  a  condition  to 
issuance  of  refunding  bonds.''®  Where  it  is  made  a  condition  to  the  issuance 
of  bonds  that  a  levy  of  a  tax  for  the  payment  of  bonds  and  interest  be  first 
made,  it  will  not  be  presumed  that  the  levy  of  the  tax  was  voted  at  a  previous 
special  meeting,  where  there  was  merely  a  levy  for  the  payment  of  the  annual 
interest,  at  the  meeting  called  to  ratify  acts  of  directors  in  issuing  the  bonds.''^ 

Where  school  district  bonds  are  issued  in  excess  of  the  debt  limit,  a  court 
may  not  reduce  them  to  an  amount  within  the  limit,  as  the  bonds  are  entirely 
invalid,''^  and  it  is  not  important  that  the  money  obtained  from  the  sale  of  the 
bonds  has  been  used  in  the  construction  of  school  buildings.''®  The  laws  of  Texas 
do  not  require  that  bonds  for  the  erection  of  school  buildings  should  be  paid  out 
of  the  levy  for  the  maintenance  of  schools.®** 


66,  66.  Indiana,  D.  &  W.  Ry.  Co.  v.  People, 
201  111.  351. 

67,  68.  Baltimore  &  O.  S.  W.  R.  Co.  v. 
People,  195  111.  423. 

69.  Burnham  v.  Police  Jury,  107  La.  513. 

70.  Coler  V.   Sterling,   15   S.  D.   415. 

71.  State  V.  Beale,  90  Mo.  App.  341. 

72.  Allen  V.  Adams,  66  S.  C.  344.  A 
constitutional  provision  against  the  enact- 
ment of  special  laws,  •where  general  laws 
could  be  made  to  apply,  will  not  invalidate 
an  act  authorizing  the  Issuance  of  bonds 
to  erect  a  school  building  in  a  specified 
school   district — State  v.  Brock,   66  S.  C.   357. 

78.     State  v.  Brock,  66  S.  C.   357. 


74.  Sanb.  &  B.  Ann.  St.  §§  474,  475,  476A 
— Montpelier  Sav.  Bank  &  Trust  Co.  v. 
School  Dist.  No.  5,  115  Wis.  622. 

75.  Parkinson  v.  Seattle  School  Dist.  No. 
1,   28  Wash.  335,   68  Pac.  875. 

76.  77.  Montpelier  Sav.  Bank  &  Trust  Co. 
V.   School  Dist.  No.  5,  115  Wis.   622. 

78.  Thornburgh  v.  School  Dist.  No.  3 
(Mo.)  75  S.  W.  81.  And  there  is  no  estoppel 
in  favor  of  bona  fide  purchasers  before  ma- 
turity— Id. 

79.  Thornburgh  v.  School  Dist.  No.  3 
(Mo.)    75  S.  W.  81. 

80.  Kennedy  v.  Birch  (Tex.  Civ.  App.)  74 
S.  W.    593. 


554 


COMMON  SCHOOLS. 


§  5 


Orders  and  warrants  for  payment  of  claims. — Warrants  should  be  counter- 
signed by  the  secretary  of  the  board  and  dra^vn  by  the  president*^  on  the  anthoriza- 
tion  of  the  rest  of  the  school  board. ^-  There  is  a  presumption,  in  the  absence 
of  evidence  to  the  contrary,  that  an  order  against  the  contingent  fund  of  a  school 
district  was  within  the  amount  allowed  by  law  to  be  drawn.^^  Mandamus  lies 
to  compel  the  issuance  of  an  order  for  payment  of  a  bill  where  the  bill  has  been 
audited  and  taxes  therefor  collected,^*  and  to  compel  a  school  district  treasurer 
to  register  and  pay  properly  drawn  orders.^*  The  fact  that  a  claim  against  a 
school  district  has  been  reduced  to  judgment  does  not  have  the  effect  of  changing 
the  character  of  the  claim  as  to  the  fund  from  which  it  should  be  paid.^®  Gen- 
erally an  anticipation  of  revenue  is  not  allowed.®^  In  Iowa  it  is  no  longer  a  con- 
dition to  appropriations  against  the  contingent  fund  that  there  should  be  un- 
appropriated money  on  hand.** 

Apportionment  of  funds.^^ — A  school  district  receiving  less  than  its  pro- 
portion of  the  school  fund  may  be  reimbursed  at  the  next  division  of  the  fund.®" 
A  new  district  in  which  no  teacher  had  been  employed  is  not  entitled  to  a  share 
of  the  primary  school  fund,  where  participation  in  apportionment  depends  on 
whether  school  had  been  taught  for  a  certain  period.®^  Under  an  act  directing 
an  equal  division  of  property  betu'een  districts  due  up  to  a  certain  period,  a 
new  district  is  not  entitled  to  funds  afterwards  apportioned.®^  The  term  inde- 
pendent school  districts  in  the  apportionment  laws  of  Texas  refers  to  schools  in 
incorporated  towns  and  cities  and  not  districts  created  by  the  commissioners' 
court.®^  In  Texas  commissioners'  courts  have  no  power  to  apportion  the  county 
school  fimd.®*  A  railroad  school  tax  collected  for  a  graded  school  must  be 
apportioned  between  the  graded  school  and  colored  school  district  within  the 
territory  occupied  by  the  graded  school,®^  and  the  right  thereto  is  not  defeated  by 
the  fact  that  no  tax  was  levied  on  the  property  of  the  colored  people  in  the 
district.®®  Where  the  colored  district  is  larger  than  the  boundaries  of  the  white 
district,  the  apportionment  of  a  railroad  school  tax  must  be  made  on  the  basis 


81.  Andrua  v.  Parish  Board  of  Directors, 
108  La.  386. 

82.  Johnson  v.  School  Corp.  of  Cedar,  117 
Iowa.  319. 

S3.  Farmers'  &  M.  State  Bank  v.  School 
Tp.  of  Rock  Creek  (Iowa)    92  N.  W.  676. 

84.  People  V.  Anderson,  109  N.  Y.  St.  Rep. 
240. 

85.  Leonard  v.  State  (Neb.)    93  N.  "W.  988. 

86.  State  V.  Cusenberry  (Mo.  App.)  71  S. 
V\'.   701. 

87.  Andrus  v.  Parish  Board  of  Directors, 
108  La.   386. 

SS.  Farmers'  &  M.  State  Bank  v.  School 
Tp.  of  Rock  Creek   (Iowa)   92  N.  W.   676. 

89.  Riarht  of  orphan  asylum  schools  to 
share  in  the  school  fund  see,  "Charitable  and 
Correctional    Institutions." 

90.  Andrus  v.  Parish  Board  of  Directors. 
108  La.   386. 

91.  Deokerville  Hish  School  Dist.  v.  School 
Dist.  No.   3   (Mich.)   90  N.  W.   1064. 

92.  Deckerville  Hiprh  School  Dist.  v.  School 
Dist.  No.  3  (Mich.)  90  N.  W.  1064.  Under  the 
California  law  requiring-  the  apportionment 
of  school  moneys  on  hand  after  apportion- 
ing to  the  districts  in  proportion  to  the  aver- 
age attendance  in  each  district  during-  the 
preceding  year  will  not  permit  the  distribu- 
tion of  the  surplus  to  a  m^w  district  formed 
during  the  school  year.  Pol.  Code.  §  1858. 
subds.   3  and  4.     The  rule  is  not  changed  by 


the  fact  that  section  1859  provides  that  no 
school  district  except  one  newly  formed  is 
entitled  to  receive  any  apportionment  of 
state  or  county  school  moneys  which  has  not 
maintained  a  public  school  for  at  least  six 
months  during  tlie  next  preceding  year — 
Sunol  School  Dist.  v.  Chipman,  138  Cal.  251, 
71  Pac.  340.  A  tax  voted  before,  but  col- 
lected after,  the  formation  of  a  new  district 
from  another  district,  but  going  to  the 
treasurer  of  the  old  district,  is  a  credit  with- 
in an  act  governing  the  apportionment  of 
credits.  A  tax  voted  by  a  school  district  be- 
fore, but  warrants  for  the  collection  of  whlcli 
need  not  go  to  the  treasurer  until  after,  the 
formation  of  a  new  district  from  the  old 
territory.  Is  not  property  within  an  act  for 
the  apportionment  of  property — School  Dist. 
No.  9  v.  School  Dist.  No.  6  (Wis.)  95  N.  W. 
148. 

93.  Wester  v.  Oge  (Tex.  Civ.  App.)  68  S. 
W.  1005.  Law  of  Texas  authorizing  the  ap- 
portionment of  school  funds  by  the  county 
superintendent  to  the  districts  including  in- 
dependent school  districts,  is  constitutional 
—Id. 

94.  Wester  v.  Oge  (Tex.  Civ.  App.)  68  S. 
W.  1005. 

95.  Sp.  Act  March  29,  1878,  Ky.  St.  §§  4433, 
4101 — Board  of  Trustees  v.  Morris,  24  Ky.  L. 
R.   1420.   71  S.  W.  654. 

96.  Kv.  St.  §  4101 — Board  of  Trustees  v. 
Morris,  24  Ky.  L.  R.  1420.  71  S.  W.  654. 


s  t) 


TE3ACHERS      AND      INSTRUCTION. 


fSS 


of  the  white  and  colored  children  of  school  age  living  in  the  territory  of  the  white 
district.®^ 

Support  of  public  libraries  from  school  funds. — Taxes  collected  for  school 
purposes  may  not  be  used  to  maintain  a  public  library  not  under  control  of 
the  board  of  education.®^ 

§  6.  Teachers  and  instruction.  Issuance  of  certificates. — A  county  super- 
intendent may  not  refuse  to  issue  a  certificate  where  a  majority  of  the  exam- 
iners certify  that  the  teacher  has  passed  the  required  examination.®^  In  New 
York  it  is  the  duty  of  the  superintendent  to  enter  names  of  teachers  passing 
examination  on  lists  to  be  kept  in  his  office.^  A  school  certificate  issued  after 
examination  on  request  of  the  board  of  education  is  valid  until  revoked,  though 
the  section  of  the  law  under  which  the  request  for  the  examination  was  made 
had  been  repealed  prior  to  the  issu?nce  of  the  certificate.^ 

A  teacher's  license  is  the  subject  of  forgery  within  the  criminal  code.^ 

Contracts  of  employment. — The  employment  of  a  teacher  for  a  year  intends 
a  school  year.*  Under  laws  requiring  a  contract  of  employraent  to  specify  the 
amount  of  his  compensation,  there  may  not  be  an  enforcement  of  a  contract 
providing  that  teachers  should  teach  for  the  public  money  to  be  apportioned  ac- 
cording to  an  agreement  yet  to  be  made."  There  is  a  presumption  that  school 
authorities  employ  legally  qualified  teachers.®  A  law  requiring  the  possession 
of  a  certificate  as  a  condition  to  employment  intends  that  the  teacher  should 
have  the  certificate  at  the  time  of  commencing  to  teach  and  not  at  the  time  of 
employment,'  and  contract  is  not  forfeited  by  failure  to  receive  certificate  until 
the  day  after  the  opening  of  the  school,  where  the  teacher  was  entitled  thereto 
on  the  opening  day.^  A  condition  in  a  contract  requiring  an  examination  before 
a  district  superintendent  may  not  be  enforced  where  there  is  no  such  oflBcer.'  A 
teacher  not  allowed  to  teach  under  her  contract  is  not  required  to  file  her  teacher's 
certificate  with  the  clerk  as  a  condition  to  recovery  for  breach  of  the  contract.^" 
The  contract  of  employment  of  a  teacher  is  void  where  entered  into  by  a  portion 
of  the  trustees  without  notice  to  other  trustees.^^  In  some  states  a  vote  or  reso- 
lution at  a  board  meeting  is  required."     In  an  action  for  breach  of  a  teacher's 


97.  Board  of  Trustees  v.  Morris.  24  Ky. 
L.  R.  1420.  71  S.  W.  654.  In  Maryland,  the 
comptroller  having  apportioned  the  school 
funds  for  colored  schools  according  to  the 
colored  population  will  not  be  compelled  to 
make  a  distribution  according  to  the  white 
population  under  another  section  of  the  stat- 
ute governing  the  matter — Shrlver  v.  Hering 
(Md.)   54  Atl.   651. 

98.  Board  of  Education  v.  Board  of  Trus- 
tees.  24  Ky.  L..  R.  98.   68  S.  W.   10. 

99.  Northington  v.  Sublette,  24  Ky.  L.  R. 
835,  69  S.  "W.  1076.  Mandamus  to  compel  is- 
suance will  lie — Id. 

1.  People  v.  Maxwell,  114  N.  T.  St.  Rep. 
726.  The  board  having  power  to  make  a 
rule  requiring  separate  lists  for  each  grade 
the  bolder  of  license  may  not  compel  the  mak- 
ing of  a  single  list  for  both  male  and  fe- 
male licensed  teachers  of  such  grade — Id; 
Brooklyn  Teachers'  Ass'n  v.  Board  of  Edu- 
cation.   83   N.   T.   Supp.   1. 

2.  Snell  V.  Glasgow   (Minn.)   95  N.  W.  881. 

3.  Arnold  v.  State  (Ark.)  74  S.  W.  513; 
Brooks  V.  State  (Tex.  Civ.  App.)  75  S.  W.  507. 

4.  TVilliams  v.  Bagnelle,  138  Cal.  699,  72 
Pac.  408;  Crabb  v.  School  Dlst.  No.  1,  93  Mo. 
App.  254. 

5.  Mingo  v.  Trustees  of  Colored  Common 
School  Dlst.,  24  Ky.  L.  R.  288,  68  S.  W.  483. 


6.     Hughes  V.  School  Dist.  No.   37,   66  S.  C. 
259. 


254 

259 

8 

254 


Crabb  v.  School  Dist.  No.  1,  93  Mo.  App. 
Hughes  v.  School  Dist.   No.   37,    66   S.   C. 


Crabb  v.  School  Dist.  No.  1,  93  Mo.  App. 
Question  may  not  be  raised  where 
board  employed  a  teacher  in  place  of  the 
plaintiff  several  days  before  the  commence- 
ment of  the  school  term — Id. 

9,  10.  Crabb  v.  School  Dist.  No.  1,  93  Mo. 
App.   254. 

11.  Scott  V.  Pendley,  24  Ky.  L.  R.  1431,  71 
S.  "W.  647.  Failure  to  notify  one  is  not  ex- 
cused on  the  ground  that  the  trustee  had 
expressed  his  opinion  adverse  to  the  employ- 
ment of  such  teacher — Id. 

12.  Comp.  Laws,  §  4671 — Cowley  v.  School 
Dist.  No.  3  (Mich.)  90  N.  W.  6S0.  Under  laws 
allowing  teachers'  contracts  to  be  made  by  a 
district  board  and  reserving  to  the  school 
district  meeting  power  to  decide  as  to  sex 
of  the  teacher  to  be  employed  the  district 
at  Its  next  meeting  after  the  contract  with 
the  teacher  may  terminate  the  same  by  de- 
ciding to  employ  a  teacher  of  a  different 
sex.  (Rev.  St.  WMs.  189S.  §  438) — Heming- 
way V.  Joint  School  Dist.  No.  1  (Wis.)  95  N. 
W.   116. 


556 


COMMON  SCHOOLS. 


§   6 


contract,  evidence  as  to  the  conduct  of  the  teacher  at  a  previous  term  is  irrele- 
vant.^' 

Employment  of  relatives. — Under  laws  invalidating  contracts  entered  into  vrith 
relatives  of  school  officers,  a  contract  with  the  wife  of  a  school  director  to  teach 
the  school  is  void.^*  A  second  cousin  of  a  school  director  or  his  wife  may  not  be 
employed  without  petition  under  a  law  proliibiting  employment  of  relatives  within 
the  fourth  degree  of  consanguinity.^^ 

Dismissal,  suspension  and  reassignment. — In  Pennsylvania  teachers  may  be 
suspended  for  a  refusal  to  comply  with  the  regulation  requiring  vaccination. ''' 
In  Xew  York  City  competent  teachers  as  well  as  superintendents  and  other  of- 
ficials are  protected  from  removal  during  good  behavior/^  and  cannot  be  reassigned 
to  a  lower  grade  at  a  reduced  salary  except  after  trial  on  charges.^'  Assignment  to 
a  lower  grade  with  a  reduction  of  salary  amounts  to  a  removal  and  not  an 
assignment,  and  can  only  be  brought  about  for  cause. ^^  The  evening  schools 
in  ISTew  York  City  are  a  part  of  the  common  school  system,-"  and  a  principal  of  an 
evening  high  school  will  not  lose  his  grade  by  accepting  emplo}Tnent  as  principal 
of  an  evening  elementary  school. ^^  A  principal  of  an  evening  school  discharged 
because  his  services  are  unnecessary,  may  not  have  mandamus  to  compel  rein- 
statement where  the  laws  authorize  the  abolition  of  unnecessary  positions.^^  The 
Xew  York  charter  allows  preference  to  be  extended  to  teachers  displaced  by  con- 
solidation or  discontinuance  of  schools.^'  The  charter  allows  removal  only  on 
charges  preferred  and  after  trial,  and  supersedes  the  law  making  marriage  of  a 
teacher  a  vacation  of  her  position.^*  A  board  of  education  having  the  power 
for  good  and  sufficient  reasons  to  reduce  the  number  of  classes  in  the  public 
schools  may  determine  the  teachers  to  be  retired.^"^  Where  directors  have  no  power 
to  dismiss  a  teacher  employed  under  contract,  an  attempt  to  dismiss  is  without 
effect,  hence  the  effect  of  a  teacher  leaving  school  under  such  dismissal  is  an 
abandonment  of  her  contract.^' 

Persons  liable  for  breach  of  contract. — The  district  and  not  the  trustees  is 
liable  for  the  violation  of  a  teacher's  contract  where  the  laws  make  the  trustees  a 
body  politic  and  corporate.^^ 

Payment  of  salary. — A  teacher  is  an  employe  and  not  a  city  official  and  may 
not  recover  for  deduction  of  salary  for  absence  where  the  board  refuses  to  excuse 
her  for  such  absence."*  A  teacher  may  contract  for  a  salary  for  the  entire  term 
of  her  employment,  and  it  is  not  necessary  that  the  contract  should  provide  for 
monthly  pa}Tnents  of  salary  thereunder,  and  it  is  not  necessary  that  the  payments 
should  be  made  monthly.^'  The  fact  that  a  school  teacher  has  no  control  over 
the  action  of  the  trustees  will  not  cause  a  strict  enforcement  of  a  requirement  that 
orders  specify  the  amount  of  the  salary  due  and  the  month  for  which  due,  as  a 


13.  Hughes  V.  School  Dlst.  No.  37,  66  S. 
C.   259. 

14.  Nuckols  V.  Lyle  (Idaho)   70  Pac.  401. 

15.  Holt  V.  "Watson  (Ark.)   71  S.  "W.  262. 

16.  Lyndall  v.  High  School  Committee.  19 
Pa.  Super.  Ct.  232. 

17.  18,  19.  Greater  N.  T.  Charter,  §  1117, 
as  amended  and  re-enacted  by  Laws  1901, 
p.  479,  c.  466,  §  1101 — People  v.  Board  of  Edu- 
cation.  174  N.   Y.  169. 

20.  Cusack  V.  Board  of  Education,  78  App. 
Div.    (N.  T.)    470. 

21.  O'Leary  v.  Board  of  Education,  78  App. 
Div.    (N.  Y.)   475. 

22.  Cusack  V.  Board  of  Education,  174  N. 
Y.  136. 

2.3.  Cusack  V.  Board  of  Education,  78  App. 
Div.    (N.   Y.)    470. 


24.     In  re  Murphy,  39  Misc.   (N.  Y.)    166. 

23.  The  school  board  is  amply  justified 
in  reducing  the  number  of  teachers  in  a 
high  school,  where  another  high  school  In 
the  same  city  employs  the  same  number  of 
teachers  to  instruct  double  the  number  of 
pupils — Bates  v.  Board  of  Education  (Cal.) 
72  Pac.   907. 

26.  Oakes  v.  Simrell  (Mo.  App.)  71  S.  W. 
10^0. 

27.  Ky.  St.  §  4437 — Mingo  v.  Trustees  of 
Colored  Common  School  Dist.,  24  Kv.  L.  R. 
288,   68   S.  W.   483. 

28.  Murphy  v.  Board  of  Education,  38 
Misc.   (N.  Y.)   706. 

20,  30.  Williams  v.  Bagnelle.  138  Cal.  699, 
72  Pac.  408. 


g  8 


DECISIONS    OF    OFFICERS. 


557 


condition  to  the  issuance  of  the  requisition  for  their  payment.'"  In  a  contro- 
versj'  between  rival  teachers  as  to  which  is  entitled  to  an  allowance  for  teaching 
the  school,  neither  will  be  paid,  where  the  one  who  taught  did  so  without  a  valid 
contract,  and  the  one  legally  entitled  to  teach  had  not  taught.'^ 

Teachers'  pensions. — Pension  fiinds  for  teachers  may  not  be  created  by  re- 
tention of  a  percentage  from  teachers'  salaries.^^  The  Ohio  act  is  a  taking  of 
private  property  for  the  use  of  another  without  the  consent  of  the  owner  and 
violates  the  constitutional  requirements  of  uniformity  of  taxation  and  is  not  uni- 
form in  its  operation  when  applied  to  only  one  city.^" 

Liability  of  teacher. — A  principal  of  a  public  school  is  not  liable  to  a  mer- 
chant for  damages  by  loss  of  business  sustained  by  reason  of  a  rule  requiring 
pupils  to  go  to  their  homes  immediately  at  the  close  of  school.^* 

Religious  instruction. — Pupils  in  a  public  school  cannot  be  required  either 
to  attend  religious  services  or  to  take  part  in  them.^^  The  laws  do  not  forbid  the 
use  of  the  Bible  in  the  public  schools,  and  courts  have  no  power  to  declare  its 
use  unlawful,  because  it  is  possible  or  probable  that  there  will  be  an  abuse  of 
the  privilege  in  the  interest  of  particular  theological  sects.'®  The  point  where 
courts  may  rightfully  interfere  to  prevent  its  use  is  where  legitimate  use  has 
degenerated  into  abuse.''^ 

§  7.  Control  and  discipline  of  scholars  and  regulation  of  attendance. — Dur- 
ing school  hours  the  teacher's  requests  to  his  pupils  amount  practically  to  de- 
mands.^* 

There  may  be  no  recovery  for  an  expulsion  after  hearing  on  account  of  a 
refusal  to  require  other  pupils  to  testify  as  to  difficulty  with  the  teacher,  for 
which  the  pupil  was  expelled,  unless  it  is  shown  that  the  refusal  was  based  on 
bad  faith.'*  In  such  an  action  there  may  be  no  recovery  for  board  or  tuition 
at  a  private  school,  unless  payment  for  such  board  or  tuition  is  shown.*"  There 
may  be  no  recovery  for  an  injury  to  a  pupil's  feelings  or  his  loss  of  standing  in 
the  community  caused  by  expulsion." 

The  board  may  delegate  to  a  committee  the  investigation  of  charges  against 
the  pupil.*^ 

Corporal  punishment. — Eeasonable  punishment  of  pupils  is  excepted  from  the 
penal  code  of  Texas  defining  and  punishing  assault  and  battery.**  Severe  pun- 
ishment of  a  pupil  will  not  justify  an  assault  by  the  parent  on  the  teacher  the 
following  day.** 

§  8.  Decisions,  rulings  and  orders  of  school  officers  and  review  of  same. — 
Findings  of  a  superintendent  in  forming  a  school  district  embraced  in  other 
districts  do  not  require  the  formality  of  legal  judgments.**  A  change  of  the 
time  of  hearing  is  not  material  where  it  involves  merely  the  change  of  one  day 
and  is  made  on  the  day  the  order  is  issued.**  There  is  a  presumption  that 
officers  in  changing  school  boundaries  have  sufficient  reason  for  their  acts.*^ 
Certiorari  is  a  proper  remedy  to  review  the   action  of   officers  in   establishing 


31. 
223. 
32. 
33. 
34. 
35. 


Shepherd   v.   Gamblll    (Ky.)    75    S.    W. 


Rogers,    87   Minn.   130. 
V.   State,   65   Ohio  St.   574. 
Cody  (Mich.)  92  N.  W.  495. 
Scheve   (Neb.)   93  N.  W.   169. 


State  V. 

Hibbard 

Jones  V. 

State  V. 
59  L..  R.  A.  927. 

36.  State  v.  Scheve  (Neb.)  93  N.  W.  169, 
59  L.  R.  A.  927.  The  school  authorities  have 
the  right  to  pass  upon  the  question  whether 
it  is  prudent  or  politic  to  permit  Bible  read- 
ing in  the  public  schools;  whether  the  prac- 
tice takes  the  form  of  sectarian  instruction 
Is  a  question  for  the  courts. — Id. 


37.  State  V.  Scheve  (Neb.)  93  N.  W.  169, 
59  L.  R.  A.  927. 

38.  Judgment  (1902)  91  N.  W.  846,  affirm- 
ed on  rehearing — State  v.  Scheve  (Neb.)  93 
N.  W.   169,   59  L.   R.   A.   927. 

39.  40,  41.  Rev.  Laws,  c.  44,  §  7 — Morrison 
V.   City  of  Lawrence,  181  Mass.  127. 

42.  Miller  v.   Clement   (Pa.)    55  Atl.  32. 

43.  Pen.  Code,  art.  593 — Stephens  v.  Stat© 
(Tex.  Cr.  App.)   68  S.  W.  281. 

44.  Walkley  v.  State,  133  Ala.  183. 

45.  46.  Biart  V.  Myers  (Neb.)  91  N.  "W. 
573. 

47.  Farley  v.  Gilbert,  24  Ky.  L.  R.  2109, 
72   S.  W.  1098. 


558 


COMPOSITION— CONFESSION     OF     JUDGMENT. 


§1 


a  school  district.*®  In  Xew  York  the  superintendent  of  public  instruction  has 
jurisdiction  of  an  appeal  by  an  aggrieved  person  against  an  allowance  for  the 
expense  of  defending  a  libel  suit  defended  by  one  of  the  committees  of  the 
school  meeting.*' 

COMPOSITION  WITH  CREDITORS. 

A  composition  operates  as  an  accord  and  satisfaction.'"'  The  giving  of  a 
fraudulent  preference,  though  it  avoid  the  composition  as  to  other  creditors, 
does  not  as  to  the  preferred  creditor,  and  the  sums  received  by  him  cannot 
be  recovered  back,  but  in  bankruptcy  proceedings  against  the  debtor,  they  must 
be  surrendered  before  the  creditor  can  prove  another  claim."^^  A  debtor  is  not 
released  by  a  composition  by  his  co-debtor  in  which  he  did  not  join.^-  A  binding 
new  promise  to  pay  in  full  may  be  made  by  one  member  of  the  debtor  firm.-''^ 

CONCEALING  BIRTH   OR   DEATH. 

Indictment. — An  averment  as  to  the  manner  of  concealment  may  be  rejected 
as  surplusage.^  "^* 

CONFESSION  OF  JUDGMENT. 

§  1.  The  warrant  or  cognovit. — A  warrant  or  cognovit  is  always  necessary 
to  entry  of  the  judgment;  it  must  be  exact  as  to  the  parties  confessing,^'  and  must 
be  strictly  construed.*"  A  warrant  in  a  note  though  it  will  not  support  a  judgment 
under  the  Xew  Jersey  law  will  give  validity  to  a  judgment  in  a  foreign  state.*^  The 
warrant  in  a  note  does  not  require  a  War  Kevenue  stamp.*^ 

§  2.  The  confession  of  judgment;  requisites  and  validity. — A  confession  of 
judgment  compelled  by  a  creditor,  without  notice  of  a  scheme  of  the  debtor  to 
defraud  his  creditors  and  before  it  is  completed,  is  valid.*'  Purchasers  from  a 
defendant  against  whom  judgment  by  confession  has  been  entered,  cannot  object 
that  the  debt  on  which  suit  was  brought  was  not  due.**  The  original  authority  to 
accept  a  confession  of  judgment  by  one  of  two  joint  debtors  is  immaterial  if  the 
creditors  with  full  knowledge  attempt  to  enforce  it.*^  The  judgment  will  be  pre- 
sumed regular  as  to  term  of  rendition,  process,  time  of  appearance,  trial  and 
rendition,  where  its  recitals  as  to  the  cause  are  full  in  all  particulars;  it  will 
be  valid  though  there  is  no  affidavit  by  plaintiff  if  it  recites  waiver  of  service.*® 

§  3.  Opening  or  vacating  the  judgment. — Motions  to  vacate  judgments  by 
confession  may  be  entertained  by  courts  of  law,*^  but  a  judgment  will  not  be 
vacated  except  on  a  clear  showing  that  defendant  does  not  owe  its  amount.*®    An 


48.  Huyser  v.  Township  Boards  of  School 
Inspectors    (Mich.)    91   N.   W.    1020. 

49.  People  V.  Skinner,  74  App.  Dlv.  (N. 
Y.)  58.  The  law  giving  an  aggrieved  person 
a  right  to  appeal  from  a  decision  of  the 
school  district  meeting,  intends  only  persons 
attending  such  meeting — Id. 

50.  See  "Accord  and  Satisfaction,"  ante, 
pp.  8,  10,  note  60. 

51.  In  re  Chaplin.  115  Fed.  162. 

52.  N.  T.  Code  Civ.  Proc.  §  1942 — Farmers" 
&  Mechanics'  Bank  v.  Hawn,  79  App.  Div. 
(N.  Y.)   640. 

53.  The  compromise  expressed  that  the 
firm  desired  to  resume  business — Taylor  v. 
Hotchkiss.    81   App.   Dlv.    (N.   Y.)    470. 

1-38.  "Wright  v.  United  States  (Ind.  T.) 
69  S.  W.  819. 

39.  Cognovit  or  warrant  by  A.  Bernstein 
&  Co.  will  justify  confession  against  A.  Bern- 
stein— Bernstein  v.   Curran.   99   111.   App.    179. 

40.  A     warrant     to    conf-^^s    judgment     in 


favor  of  the  holder  of  a  note  is  a  special  au- 
thority and  cannot  be  extended  to  one  not  a 
holder — National  Exch.  Bank  v.  Wiley  (Neb.) 
92   N.  W.  582. 

41.  Construing  1  Gen.  St.  p.  172 — Shelmer- 
dine  V.  Lippincott  (N.  J.  Sup.)    54  Atl.   237. 

42.  War  Revenue  Act,  June  13,  1898 — 
Treat  v.  Tolman  (C.  C.  A.)  113  Fed.  892. 

43.  That  the  same  attorneys  who  aided  In 
the  scheme  were  employed  by  the  creditor 
will  not  affect  the  judgment  if  he  had  no 
notice  of  it — Barker  v.  Franklin,  37  Misc. 
(N.   Y.)    292. 

44.  Under  Code  Civ.  Proc.  §  1274,  subd.  2, 
and  S  1277 — St.  John  Wood-Working  Co.  v. 
Smith,  82  App.  Dlv.   (N.  Y.)  348. 

45.  Tootle.  Hosea  &  Co.  v.  Otis  (Neb.)  96 
N.  W.  681. 

46.  Smith  V.  Ridley  (Tex.  Civ.  App.)  70  S. 
W.  235. 

47.  Baragwanath  v.  Lasher,  203  111.  247. 

48.  In    vacating    such   judgment?    a    court 


§  1 


CONFLICT   OF   LAWS. 


559 


application  to  open  a  judgment  by  confession  is  addressed  to  the  equitable  as 
well  as  the  legal  powers  of  the  court,  and  they  will  be  exercised  on  application 
of  any  defendant  without  regard  to  joinder  or  non-joinder  of  co-defendants.*® 
A  judgment  confessed  under  a  power  in  a  note  will  not  be  set  aside  because  the 
face  of  the  note  shows  a  change  in  the  place  of  contract  where  the  alteration  could 
not  affect  the  right  to  enter  judgment  within  the  state.^°  Failure  to  comply  with 
the  terms  of  a  warrant  in  a  lease  as  an  agreement  for  an  amicable  action  of 
ejectment  will  justify  opening  the  judgment."^  That  a  note  on  which  judgment 
was  entered  was  secured  by  undue  influence  and  duress  may  be  cause,  in  the 
discretion  of  the  court,  for  opening  the  judgment.^^ 

Procedure  and  evidence. — Delay  of  one  year  before  application  to  open  a  judg- 
ment on  a  note  alleged  to  be  forged  will  not  be  fatal  if  the  note  was,  in  fact, 
forged;  such  delay  may  be  excused  where  it  results  from  ad-vice  of  counsel. 
Terms  on  the  opening  requiring  that  the  note  shall  stand  as  a  prima  facie  case  for 
plaintiff  on  trial  may  be  stricken  out  on  due  notice  after  trial  and  new  trial 
granted.  The  question  of  forgery  of  a  note  containing  a  warrant  cannot  be 
determined  merely  from  comparison  of  the  signature  with  another  shown  to  be 
genuine;  and  plaintiff  has  the  burden  of  establishing  the  validity  of  the  instru- 
ment. If  the  judgment  is  opened  generally,  plaintiff  must  prove  his  case  as  though 
no  judgment  had  been  entered.''^ 


CONFLICT  OF  LAWS. 


§  1. 
§  2. 
§  3. 

*y. 

§   4. 

§  5. 

Fomiu. 

§  6.     Sfatters  Affecting  Morality. 


Contracts  In  General. 
Kffect  of  Status  or  Domicile. 
Matters  Relating  to  Personal  Proper- 
Effect  of  Public  Policy. 
Protection  of  Citizens  in  State  of  the 


§  7.     Contracts  Relating  to  Realty. 

§  8.  Application  of  Remedies. — Action  for 
Wrongful  Death;  Limitations;  Adopted  Stat- 
utes; Presumptions  and  Judicial  Notice  of 
Foreign  Laws. 

§  9.     Torts. 

§  10.     Crimes  and  Misdemeanors. 


§  1.  Contracts  in  general. — The  validity  of  a  contract^*  as  to  form  and 
the  solemnities  to  be  followed  therein,®^  as,  for  instance,  application  of  the 
statute  of  frauds,'®  or  of  the  statutes  governing  the  sale  of  intoxicating  liquors, **' 


of  law  acts  with  purely  equitable  jurisdic- 
tion— Pearce  v.  Miller,  99  111.  App.  424; 
Whalen  v.  Billings,  104  111.  App.  281.  Judg- 
ment against  a  surety  on  a  bond  will  be 
vacated  where  It  appears  that  he  did  not 
sign,  unless  it  also  appears  that  some  one 
duly  authorized  signed  for  him — Charles  D. 
Kaier  Co.  v.  O'Brien,  202  Pa.  153.  Where 
a  member  of  a  building  association  had  made 
considerable  payments  for  which  she  re- 
ceived no  credit  and  excessive  fines  had 
been  imposed  upon  her,  a  Judgment  entered 
against  her  on  warrant  will  be  opened — 
Provident  Bldg.  &  Loan  Ass'n  v.  Cresswell, 
204  Pa.  105.  Sufficiency  of  evidence  to  war- 
rant opening  of  judgment — Shannon  v.  Cast- 
ner.  21  Pa.  Super.  Ct.  294. 

49.  Custer  v.  Harmon,   105  111.  App.    76. 

50.  Krantz  v.  Kazensteln,  22  Pa.  Super. 
Ct.   275. 

31.  Weaver  v.  McDevltt,  21  Pa.  Super.  Ct. 
597. 

52.  Note  secured  by  son  from  parents 
through  fear  and  a  mingled  desire  to  give 
him  a  preferred  claim  and  provide  for  him 
— IMcMahon  v.  McMahon,  203  Pa.  16. 

53.  Shannon  v.  Castner,  21  Pa.  Super.  Ct. 
294. 

.54.  Emerson  Co.  v.  Proctor,  97  Me.  360. 
The  Ifcgality  of  stock  sales  made  by  broker's 
correspondents  in  New  York  depends  on  the 
laws    of    that    state — Gaj'lord    v.    Duryea,    95 


Mo.  App.  574.  A  contract  of  shipment  made 
in  Missouri  between  a  resident  corporation 
and  a  carrier  having  an  office  and  doing 
business  there  Is  governed  by  the  laws  of 
that  state — Herf  &  Frerichs  Chemical  Co.  v. 
Lackawanna  Line  (Mo.  App.)  73  S.  W.  346. 
A  contract  made  in  New  York,  relating  to 
construction  of  a  railroad  for  a  company 
afterward  consolidated  with,  one  organized 
under  the  laws  of  Pennsylvania,  will  be  en- 
forced in  the  latter  state  though  void  there, 
where  it  is  valid  as  between  the  parties  in 
New  York — Rumsey  v.  New  York  &  P.  R. 
Co.,  203  Pa.  579.  Matters  concerning  the 
validity  of  a  contract  of  insurance  issued  to 
an  applicant  resident  in  Mexico  on  an  appli- 
cation there  executed  will  be  settled  by  the 
laws  of  Mexico — DeSonora  v.  Banker's  Mut. 
Casualty  Co.   (Iowa)   95  N.  W.  232. 

55.  Roubicek  v.  Haddad,  67  N.  J.  Law,  522. 

56.  Contract  of  agency  to  sell  lands — 
Goldstein  v.  Scott,  76  App.  Div.   (N.  Y.)   78. 

57.  The  validity  of  a  sale  of  Intoxicating 
liquor  depends  upon  the  law  where  sold — 
P.  Schoenhofen  Brewing  Co.  v.  Whipple 
(Neb.)  89  N.  W.  751.  Sufficiency  of  sale  of 
liquors  In  New  York  to  persons  without  li- 
cense to  sell  in  Connecticut  to  prevent  vio- 
lation of  liquor  laws  of  the  latter  state; 
Gen.  Laws  Conn.  §  3078 — J.  &  J.  Eager  Co.  v. 
Burke,    74    Conn.    534.      A    sale    of    liquor    by 


560 


CONFLICT   OF  LAWS. 


§1 


or  as  to  usury/*  will  be  controlled  by  tlie  laws  of  the  state  where  made.  Insurance 
policies  will  be  governed  by  the  laws  of  the  state  where  the  policy  is  delivered 
and  the  premiums  paid/'  unless  the  policy  stipulates  otherwise  and  as  to  the 
rule  in  such  contingency  the  authorities  differ.®"  Contracts  are  generally  con- 
strued according  to  the  law  of  the  state  where  made/^  unless,  however,  by 
their  terms  they  are  to  be  performed  elsewhere,  in  which  case  they  are  governed 


a  Georgia  dealer  on  orders  obtained  by  a 
traveling  salesman  in  Alabama  is  governed 
by  the  laws  of  Alabama;  Act  of  Congress, 
"Wilson  Act"  construed — Bluthenthal  v.  Mc- 
Whorter,   131  Ala.  642. 

58.  Contracts  in  general.  The  rule  applies 
to  usury — Clarke  v.  Taylor,  69  Ark.  612.  In- 
terest to  be  paid  by  guarantor  of  mortgage 
not  secured  on  property  in  another  state — 
Taylor  v.  Simpkin3,  38  Misc.  (N.  Y.)  246. 
The  contract  may  be  enforced  In  another 
state  though  usurious  there  and  though  se- 
cured by  mortgage  on  lands  in  another  state 
— Crebbin  v.  Delony,  70  Ark.  493.  A  con- 
tract to  pay  interest  on  advances  on  prop- 
erty in  Nevada,  made  by  a  Colorado  corpora- 
tion with  one  of  its  directors,  will  be  en- 
forced in  Pennsylvania,  though  the  rate  was 
not  legal  under  the  laws  of  Pennsylvania, 
where  it  was  legal  under  the  laws  of  both 
Nevada  and  Colorado — Kroegher  v.  Calivada 
Colonization  Co.  (C.  C.  A.)  119  Fed.  641; 
Calivada  Colonization  Co.   v.  Kroegher,   Id. 

Bnilding-  and  loan  contracts.  American 
Bldg.,  Loan  &  Tontine  Ass'n  v.  McClellan 
(Ark.)  70  S.  W.  463.  Loans  made  In  Missis- 
sippi by  building  and  loan  association — Na- 
tional Mut.  Bldg.  &  L.  Ass'n  v.  Hulet  (Miss.) 
33  So.  3;  Same  v.  Hart,  Id.;  Same  v.  Hoskins, 
Id.  Subscription  and  loan  contract  governed 
by  laws  of  state  where  dated  and  made  pay- 
able— Alexander  v.  Building  &  Loan  Ass'n, 
120  Fed.  963.  A  loan  to  a  stockholder  by  a 
building  and  loan  association  organized  un- 
der the  laws  of  Alabama  and  payable  in  that 
state  at  the  home  office  is  governed  by  its 
usury  laws — Gale  v.  Building  &  Loan  Ass'n, 
117  Fed.  732.  Loan  by  borrowing  stockhold- 
er In  building  and  loan  association  depends 
as  to  legal  rate  of  interest  on  the  laws  of 
the  state  where  made  and  payable,  though 
the  security  may  be  situated  elsewhere — 
Interstate  Bldg.  &  L.  Ass'n  v.  Edgefield  Hotel 
Co..  120  Fed.  422.  Loans  made  by  resident 
agents  of  a  foreign  association  and  secured 
on  property  In  the  state  where  made,  and  on 
which  payments  are  there  made,  depend  as 
to  usury  on  the  laws  of  that  state  though  in 
terms  payable  at  the  home  office — Hicin- 
bothem  v.  Savings  &  Loan  Ass'n,  40  Or.  511, 
69  Pac.  1018;  Georgia  State  Bldg.  &  L.  Ass'n 
V.  Shannon,  SO  Miss.  642.  Such  loans  by  a 
foreign  association  are  usurious  If  the  rate 
is  above  the  legal  rate  in  the  state  where 
made,  though  the  contracts  for  loans,  being 
separate  from  those  for  subscription,  were 
similar  to  those  used  in  the  state  of  organi- 
zation and  the  place  of  performance  was 
there  fixed  by  the  by-laws — Georgia  State 
Bldg.  &  L.  Ass'n  V.  Brown  (Miss.)   31  So.  911. 

59.  Thompson  v.  Insurance  Co.,  169  Mo. 
12.  Property  In  Kentucky  Insured  by  New 
Tork  company — Carrollton  Furniture  !Mfg. 
Co.  V.  Indemnity  Co.  (C.  C.  A.)  115  Fed.  77. 
A  life  insurance  policy  executed  in  Missouri, 
the  premiums  and  losses  on  which  are  pay- 
able in  that  state.  Is  governed  by  Its  laws — 
Franklin  Life  Ins.  Co.  v.  Galligan  (Ark.)  73 
S.  W.  102.  A  life  insurance  policy  Issued  by 
a     company    authorized    to    do    bu.<5iness     in 


Massachusetts,  on  an  application  made  In 
writing  to  its  agent  in  that  state  where  the 
applicant  resided,  and  there  delivered  by  its 
agent,  who  there  received  the  first  premium, 
will  be  governed  by  the  laws  of  that  state — 
Albro  V.   Insurance  Co.,  119  Fed.   629. 

60.  An  Insurance  policy  will  be  construed 
under  the  laws  of  Missouri  where  delivered 
in  that  state  at  the  residence  of  the  insured 
though  it  stipulates  that  it  is  to  be  con- 
strued according  to  the  laws  of  New  Tork — 
Pietrl  V.  Seguenot,  96  Mo.  App.  258.  A  life 
insurance  policy  written  in  Washington  by 
a  New  Tork  company,  on  an  application 
providing  that  the  contract  should  be  gov- 
erned by  the  New  Tork  laws  and  made  a  part 
of  the  policy,  is  governed  by  such  laws  as  to 
forfeiture  for  nonpayment  of  premiums, 
though  tlie  contract  ■was  delivered  and  the 
premiums  paid  in  Washington.  Laws  N.  T. 
1877,  c.  321,  §  1 — Mutual  Life  Ins.  Co. 
Hill   (C.  C.  A.)   118  Fed.   708. 

61.  See  Building  &  Loan  Associations,  p. 
394.  note  78,  concerning  loans.  Where  the 
writings  for  a  loan  stipulate  no  place  of 
payment  by  a  borrowing  stockholder  of  a. 
foreign  building  and  loan  association,  but 
the  application  for  membership  designates 
the  local  treasurer  as  the  officer  to  whom 
payment  is  to  be  made  and  payments  are- 
actually  made  to  him,  the  rights  of  the 
member  under  an  assignment  of  the  debt  to 
a  stranger  without  recourse  will  be  deter- 
mined by  the  law  of  the  member's  domicile — 
Spinney  v.  Chapman  (Iowa)   95  N.  W.  230. 

An  action  in  one  state  on  a  policy  of  In- 
surance on  property  In  another  state  given 
by  a  company  of  a  third  state  is  governed 
as  to  the  contract  by  the  law  of  the  state 
where  the  property  was  situated  and  the 
contract  was  made — Thompson  v.  Insurance 
Co.,  169  Mo.  12.  Policy  of  insurance  by  Unit- 
ed States  company  on  property  in  Mexico — 
De  Sonora  v.  Banker's  Mut.  Casualty  Co. 
(Iowa)   95  N.  W.  2" 2. 

Negotiable  Instmmenta.  Note  Indorsed  In 
blank  in  Vermont  construed  under  the  laws 
of  that  state  in  the  New  Hampshire  courts — 
Limerick  Nat.  Bank  v.  Howard,  71  N.  H.  13. 
An  Indorsement  In  New  Tork  of  a  note  exe- 
cuted in  another  state  Is  governed  by  the 
New  Tork  laws — Spies  v.  Bank,  174  N.  T. 
222.  A  note  and  mortgage  on  Maryland  real- 
ty, dated  and  executed  in  that  state,  will  b€ 
presumed  payable  at  place  of  date  In  absence 
of  other  evidence,  and  will  be  construed  un- 
der the  laws  of  that  state — New  Tork  Se- 
curity &  Trust  Co.  v.  Davis,  96  Md.  81.  The 
Indiana  law  will  govern  a  note  dated  In 
Wisconsin  but  actually  negotiated,  executed, 
and  made  payable  In  Indiana,  as  to  days  of 
grace  and  notice  to  Indorsers.  though  the 
nature  and  sufficiency  of  evidence  to  show 
notice  will  be  governed  by  the  laws  of  Wis- 
consin— Second  Nat.  Bank  v.  Smith  (Wis.) 
94  N.  W.  664. 

Contracts  of  married  Tvomen.  Roblson  v. 
Pease,  28  Ind.  App.  610;  Baer  Bros.  v.  Terry. 
108  La.  597.  Note  of  married  woman  living 
with  her  husband  in  Tennessee,  executed,  de- 


§  2 


EFECT  OF  STATUS. 


;&i 


by  tlie  laws  of  the  place  of  performance;®''  citizens  of  the  United  States  ship- 
ping as  horsemen  on  English  vessels  carrying  live  stock  from  New  Orleans  to 
South  Africa  under  contract  requiring  free  return  passage  to  an  American  port 
were  subject  to  English  law  on  the  voyage  over  but  on  the  return  trip  their 
rights  were  governed  by  United  States  laws.^''  Where  certificates  of  stock  in 
a  foreign  building  association,  having  no  office  or  general  agent  in  a  certain 
state  but  merely  special  agents  who  solicit  subscriptions,  provide  that  payments 
sliall  be  made  at  the  principal  office,  unless  proper  notice  is  given  of  another 
place  of  paym?nt  which  was  given  fixing  a  place  within  the  state  for  payment, 
the  contract  as  to  usury  was  governed  by  the  laws  of  that  state.*^*  A  loan 
i^ecured  by  a  mortgage  on  land  in  Alabama  by  a  citizen  of  that  state  from  a  Minne- 
sota building  and  loan  association  declared  in  the  note  and  mortgage  to  be 
payable  in  Minnesota  and  to  be  made  with  reference  to  its  laws,  is  governed 
by  the  usury  laws  of  Minnesota.*^ 

§  2,  Effect  of  status  or  domicile.^^ — The  validity  of  a  will  covering  personal 
property  depends  on  the  law  of  the  testator's  domicile  though  the  property 
is  situate  elsewhere,**^  likewise  the  rights  of  an  heir  in  a  distributable  surplus.®^ 
While  the  effect  and  validity  of  a  will  are  determined  by  the  laws  of  the  testator's 
domicile,  a  beneficiary  given  power  of  "entire  disposal"  of  certain  personal 
property  may  do  so  by  an  instrument  conforming  to  the  laws  of  his  own  domicile.''^ 
The  estate  of  an  infant  deceased  will  be  administered  according  to  the  law  of  the 
state  of  its  domicile/"  The  eligibility  of  beneficiaries  of  a  benefit  association 
will  be  determined  by  the  laws  of  the  state  where  the  association  was  organized." 
The  liability  of  a  stockholder  will  be  determined  by  the  laws  of  the  domicile 
of  the  corporation  regardless  of  his  domicile  or  the  law  of  the  forum.^^ 


livered,  and  payable  in  Ohio,  is  governed  by 
the  laws  of  Oliio — First  Nat.  Bank  v.  Shaw 
(Tenn.)    70  S.   W.   807. 

62.  Neg-otiable  Instruments.  Notes  exe- 
cuted in  Indian  Territory,  where  the  laws 
of  Arkansas  govern,  and  made  payable  in 
the  latter  state,  are  governed  by  its  laws 
as  to  negotiability — Clark  v.  Porter,  90  Mo. 
App.  143.  A  note  sent  by  the  maker  in 
Nebraska  to  the  payee  in  Oklahoma  is  not 
governed  by  the  Nebraska  laws — Hewitt  v. 
Bank  (Neb.)  90  N.  W.  250;  see,  also,  Id. 
(Neb.)  92  N.  W.  741.  The  negotiability  of  a 
note  payable  in  another  state  depends  upon 
its  laws — Barger  v.  Farnham  (Mich.)  90  N. 
W.  281. 

es.     The   European,   120   Fed.   776. 

64.  National  Mut.  Bldg.  &  L.  Ass'n  v. 
Farnham   (Miss.)    33  So.  2. 

65.  United  States  Sav.  &  L,  Co.  v.  Beckley 
(Ala.)   33  So.  934. 

Rule  against  perpeicsities. — If  a  disposition 
of  personalty,  by  will  or  otherwise,  is  not 
against  the  rule  in  the  state  or  country  of 
the  owner's  domicile,  it  will  be  upheld,  though 
the  personalty  is  in  another  state  and  the 
disposition  could  not  there  be  sustained  un- 
der its  laws — Knox  v.  Jones,  47  N.  T.  389, 
Cross  v.  United  States  Trust  Co.,  131  N.  Y. 
330,  Whitney  v.  Dodge,  105  Cal.  196.  But 
though  a  will  or  other  transfer  of  realty  is 
not  in  violation  of  the  rule  in  force  in  the 
state  or  country  where  made  or  of  the 
maker's  domicile.  It  must  be  declared  void,  if 
against  the  rule  in  the  place  where  the  realty 
Is  situated,  since  the  disposition  of  realty 
must  always  be  determined  by  the  law  of  the 
state  or  country  of  which  it  is  a  part — White 
V.  Howard,  46  N.  T.  144,  Ford  v.  Foi-d,  70 
Wis.  19,  Hobson  v.  Hale,  95  N.  T.  588,  Knox 


V.  Jones,  47  N.  Y.  389.  And  sometimes  it  has 
been  held  that  when  funds  are  directed  to  be 
invested  in  another  state  in  trusts  allowable 
by  its  laws,  but  in  violation  of  the  law  of 
the  testator's  domicile,  that  such  directions 
must  be  disregarded  as  against  the  rule  in 
force  at  his  domicile — Wood  v.  Wood,  5  Paige 
(N.  Y.)  596.  But  since  the  property  to  be  ac- 
quired is  to  be  held  in  another  state,  the 
courts  or  authorities  of  the  state  whence  the 
funds  came  are  not  generally  concerned  with 
the  question  whether  the  direction  violates 
the  rule  against  perpetuities  or  not — Vansant 
V.  Roberts,  3  Md.  119,  Chamberlain  v.  Cham- 
berlain, 43  N.  Y.  424.  Where  a  testator  or- 
ders his  estate  to  be  invested  in  lands  in  an- 
other state  or  country,  he  must  be  presumed 
to  have  intended  to  submit  to  the  jurisdiction 
and  laws  of  that  state.  Whether  the  trusts 
created  by  his  will  are  in  violation  of  the 
statutes  of  that  state  or  country,  is  a  ques- 
tion for  the  Jurisdiction  of  its  courts  and  not 
for  the  courts  of  the  testator's  domicile — 
Ford  V.  Ford,  80  Mich.  55,  Ford  v.  Ford,  72 
Wis.  621.  See  more  fully  49  Am.  St.  Rep. 
124. 

66.  Sufficiency  of  acquisition  of  domicile 
in  Texas  by  husband  who  removed  so  that 
property  acquired  elsewhere  will  be  govern- 
ed as  to  marital  rights  by  the  laws  of  Texas 
— Blethen  v.  Bonner  (Tex.  Civ.  App.)  71  S. 
W.    290. 

67.  Garvey    v.    Horgan,    38    Misc.    (N.    T.) 


164. 

68. 

69. 
906. 

70. 

71. 

72. 


Champalllon  v.   Corbin,    71  N.  H.   78, 
Ward   v.    Stanard,    115    N.    Y.    St.    Rep. 

In  re  Klernan,  38  Misc.   (N.  Y.)   394. 
Grimme  v.  Grlmme,   198  111.   265. 
McClure  v.   Iron  Co.,   90  Mo.  App.   567; 


502 


CONFLICT   OF  LAWS. 


8 


The  nature  of  a  debt  contracted,  as  to  liability  of  husband  and  wife,  depends 
on  the  law  of  the  place  wliere  the  transaction  took  place."  Lands  purchased  in 
Texas  by  a  husband  after  moving  there  with  money  earned  while  a  citizen  in 
another  state  under  the  laws  of  which  it  was  separate  property,  is  not  community 
property.''*  The  laws  of  the  state  will  apply  to  determine-  whether  land  on 
which  a  husband  made  a  homestead  entry  during  the  life  of  his  wife  was  com- 
munity property  when  he  did  not  get  a  patent  or  make  final  proof  before  her 
death.''  Laws  regulating  privileges  and  disabilities  of  married  women  in  Louis- 
iana do  not  operate  for  benefit  of  such  persons  domiciled  elsewhere.''^  The  con- 
tract of  a  married  woman  is  valid  ever}'where  if  valid  where  it  is  made  and  to  be 
performed  unless  she  is  domiciled  where  she  cannot  legally  make  a  contract.'' 

Liability  for  negligence  resulting  in  personal  injuries  is  determined  by  the 
laws  of  the  state  where  the  injuries  were  received."  The  laws  of  the  state  where 
an  injury  to  a  passenger  occurred  govern  as  to  the  degree  of  care  required  of 
the  carrier.''® 

§  3.  Matters  relating  ia  personal  properttj. — The  validity  of  a  pledge  must 
be  determined  by  the  laws  of  the  state  where  the  property  is  situated.^"  Tlie 
validity  of  trusts  in  personalty  will  generally  be  settled  by  the  law  of  the  state 
where  they  are  to  be  administered.*^  A  contract  to  deliver  goods  then  in  ware- 
house or  to  pay  commissions  from  their  sale  must  be  governed  by  the  law  of  the 
place  where  it  is  to  be  performed.®^ 

§  4.  Effect  of  public  policy. — A  contract  made  in  one  state  will  not  be  en- 
forced in  another  state  wherein  it  is  against  public  policy  or  morals, ^^  nor  will 


Love  V.  Pusey  &  Jones  Co.  (Del.  Super.)  52 
Atl.  542.  Statute  regulating  proceedings  by 
creditors  to  enforce  statutory  liability  of 
stockholders — Pfaff  v.  Gruen  (Mo.  App.)  69 
S.  W.   405. 

73.  In  "Washington  a  debt  for  a  building 
for  husband  and  wife  in  another  state  will 
be  held  a  community  debt — Clark  v.  Eltinge. 
29   Wash.   215. 

74.  Blethen  v.  Bonner  (Tex.  Civ.  App.) 
71  S.  W.  290. 

75.  It  will  be  determined  community 
property  under  the  state  laws — Ahern  v. 
Ahern    (Wash.)    71   Pac.   1023. 

70.  Marks  v.  Germanla  Sav.  Bank  (La.) 
34  So.  725. 

77.  Young  V.  Hart   (Va.)    44  S.  E.   703. 

78.  The  laws  of  Texas  will  determine  lia- 
bility of  a  railroad  company  for  injuries 
there  received  because  of  negligent  loading 
of  a  car,  though  the  car  was  loaded  in  New 
Mexico— El  Paso  &  N.  W.  Ry.  Co.  v.  Mc- 
Comas   (Tex.  Civ.  App.)  72  S.  W.  629. 

79.  Louisville  &  N.  R.  Co.  v.  Harmon,  23 
Ky.   L.   R.    871.   64  S.   W.   640. 

Laws  Determining  Age  of  Majority. — The 
capacity,  state  and  condition  of  persons  ac- 
cording to  law  of  their  domicile,  will  gen- 
erally be  regarded,  as  to  acts  done,  rights 
acquired  and  contracts  made  in  place  of 
their  domicile,  touching  property  situated 
therein,  and  if  these  acts,  rights  or  contracts 
are  valid  there,  they  will  be  held  equally  valid 
everywhere;  if  they  are  invalid  there,  they 
will  be  invalid  everywhere.  As  to  acts  done, 
rights  acquired  and  contracts  made  in  other 
countries,  touching  property  therein,  the  law 
of  the  country  where  the  acts  are  done, 
rights  are  acquired  or  contracts  are  made, 
will  generally  govern  in  respect  to  capacity, 
state  and  condition  of  persons.  Hence,  it 
may  be  deduced  as  a  corollary,  that,  in  re- 
gard to  the  question  of  minority  or  ma- 
jority  and   other  personal  qualities   and  dis- 


abilities, the  law  of  the  domicile  of 
birth,  or  the  law  of  any  other  ac- 
quired and  fixed  domicile,  is  not  gen- 
erally to  govern,  but  the  law  of  the  place 
where  the  contract  is  made  or  the  act  done, 
and  a  person  who  is  a  minor  until  he  is  of 
the  age  of  25  by  the  law  of  his  domicile  and 
incapable  of  making  a  valid  contract  there, 
may  nevertheless  in  another  country  where 
he  would  be  of  age  at  21  generally  make  a 
valid  contract,  even  a  contract  of  marriage 
— Story  on  Conflict  of  Laws.  §§  101,  102.  103. 
approved  in  Pearl  v.  Hansborough,  9  Humph. 
426,  and  generally  in  the  courts  of  all  the 
states — Saul  v.  His  Creditors,  16  Am.  Dec. 
212;  Andrews  v.  His  Creditors.  11  La.  464; 
Baldwin  v.  Gray.  16  Am.  Dec.  169;  Pickering 
v.  Fisk,  6  Vt.  102;  Hiestand  v.  Kuns  (Ind.) 
8  Blackf.  345.  The  rule  is  applied  in  Louis- 
iana that  the  law  of  the  domicile  of  origin 
governs  the  state  and  condition  of  the  minor 
into  ■whatever  country  he  removes — Barrera 
V.  Alpuente  (La.)  6  Martin  (N.  S.)  69,  17 
Am.  Dec.  179.  See  also  more  fully  on  this 
point   17   Am.   Dec.   179,   and   note. 

80.  In  re  St.  Paul  &  K.  C.  Grain  Co. 
(Minn.)   94  N.  W.   218. 

81.  Trust  in  personalty  In  foreign  state 
given  by  will  of  domestic  testatrix — Mount 
V.  Tuttle,  116  N.  Y.  St.  Rep.  655.  The  lia- 
bility of  income  from  a  trust  founded  in 
Rhode  Island,  of  bonds  and  securities  In 
New*  York,  to  be  subjected  to  a  judgment 
rendered  against  the  beneficiary  in  New 
York,  will  be  settled,  in  comity,  by  the  laws 
of  the  latter  state — Keeney  v.  Morse,  71  App. 
Div.    (N.   Y.)    104. 

82.  Farmer  v.  Etherldge,  24  Ky.  L.  R. 
649.  69  S.  W.  761. 

S3.  Parker  v.  Moore  (C.  C.  A.)  115  Fed. 
799.  The  principle  of  state  comity  will  not 
apply — Palmer  v.  Palmer  (Utah)  72  Pac.  3. 
The  laws  of  a  state  where  a  gambling  de- 
vice   Is    to    be    delivered    will    determine   the 


§  6 


MATTERS  AFFECTING   MORALITY. 


563 


the  parties  be  allowed  to  abrogate  the  public  policy  of  a  state  by  conditions  in 
a  contract  adopting  the  laws  of  another  state.®* 

§  5.  Protection  of  citizens  in  state  of  forum. — Exemption  laws  of  another 
state  have  no  extraterritorial  force.®^  Foreign  voluntary  assignments  for  benefit 
of  creditors  cannot  be  enforced  if  they  conflict  with  the  statutes  or  public  policy 
of  the  state  where  they  are  sought  to  be  enforced,®^  but  they  will  be  held  valid  if 
tlie  controversy  is  wholly  between  nonresident  creditors.®^ 

§  6.  Matters  affecting  morality. — The  court  will  not  necessarily  refuse  to  recog- 
nize divorces  granted  in  another  state  for  causes  arising  before  the  marital  domicile 
was  established  irerely  because  it  will  not  grant  a  divorce  on  such  grounds.*'^  A 
statutory  prohibition  as  to  remarriage  within  a  certain  period  after  divorce  has  no 
force  beyond  the  state.®" 


validity  of  a  contract  for  Its  sale — Price  v. 
Burns,  101  111.  App.  418.  An  assignment  of 
a  neg'otlable  certificate  of  deposit  in  payment 
of  a  loss  at  gambling,  valid  at  the  common 
law  In  hands  of  a  purchaser  In  the  state 
where  made,  will  not  be  declared  void  in 
Colorado  as  against  statute,  where  the  law 
of  the  state  of  execution  is  not  so  offensive 
as  to  shock  the  moral  sense — Sullivan  v. 
Bank   (Colo.  App.)   70  Pac.  162. 

84.  Insurance  policy — Albro  v.  Insurance 
Co.,  119  Fed.  629.  A  condition  in  a  contract 
made  without  the  state  for  carriage  of  stock 
to  a  point  within  the  state,  limiting  liability 
for  injury  due  to  negligence,  will  not  be  en- 
forced where  the  injury  occurs  within  the 
state,  It  being  against  the  policy  of  the 
state — Hughes  v.  Railroad  Co..  202  Pa.  222. 
A  provision  in  a  steamship  ticket  issued  in 
England  that  the  English  law^  shall  govern 
the  contract  will  not  validate  a  limitation  of 
liability  for  negligent  injury  to  baggage 
which  is  against  the  public  policy  of  the 
United  States — The  New  England,  110  Fed. 
415. 

Limitation  of  liability  ot  carrier  by  con- 
tract.— Generally,  contracts  with  regard  to 
limitation  of  liability  of  carriers  are  deter- 
mined as  to  conflict  of  laws  by  the  rules  ap- 
plicable to  other  contracts  and  if  the  con- 
tract is  allowed  to  be  performed  within  one 
state,  Its  laws  will  govern,  though  the  con- 
tract is  brought  into  question  In  the  courts 
of  other  states— Knowlton  v.  Erie  Ry.  Co., 
19  Ohio  St.  260.  If  a  contract  Is  made  in  one 
country  or  state  between  citizens  and  resi- 
dents thereof  and  its  performance  begins 
there,  it  will  be  governed  by  the  laws  of  that 
country  or  state,  unless  the  parties  on  enter- 
ing the  contract  clearly  manifest  a  mutual 
Intention  that  it  shall  be  governed  by  the 
law  of  some  other  country — Michigan  Cent. 
R.  Co.  v.  Boyd.  91  111.  268,  Liverpool,  etc.. 
Steam  Co.  v.  Phoenix  Ins.  Co.,  129  U.  S.  397, 
Merchants'  Dispatch  Transportation  Co.  v. 
Furthman,  149  111.  86,  Brockway  v.  Ameri- 
can Ex.  Co.,  168  Mass.  257,  Pacific  Exp.  Co. 
V.  Foley,  46  Kan.  457,  26  Pac.  665,  Hudson  v. 
N.  P.  R.  Co.,  92  Iowa,  231.  Davis  v.  Chicago, 
etc.,  R.  Co.,  93  Wis.  470.  Eckles  v.  Missouri 
Pacific  R.  Co.,  72  Mo.  App.  296,  The  Henry  B. 
Hyde,  82  Fed.  682.  The  courts  are  In  conflict 
on  the  question  as  to  w^hether  a  contract  ex- 
empting a  carrier  from  liability  for  negli- 
gence, if  valid  where  made,  will  be  en- 
forced In  a  jurisdiction  where  It  is  void.  In 
Pennsylvania,  such  contracts  will  be  en- 
forced where  valid  in  another  state  though 
void  there — Forepaugh  v.  Delaware  &  Lack- 
awanna R.  Co.,  128  Pa.  St.  217,  and  in  Iowa, 
limitations  of  liability  valid  elsewhere  have 
bppn     upheld     though     forbidden     by    statute 


within  the  state  to  limit  the  common  law 
! lability — Hazel  v.  Chicago,  etc.,  R.  Co.,  82 
Iowa,  477,  and  in  Kentucky,  contracts  of  this 
sort  valid  elsewhere  have  been  upheld 
though  forbidden  by  the  constitution  of  the 
state — Tecumseh  Mills  v.  Louisville  &  Nash- 
ville R.  Co.,  22  Ky.  L.  Rep.  264,  57  S.  W.  9. 
In  Nebraska,  no  such  limitation  will  be  en- 
forced, no  matter  what  the  law  of  the  place 
of  contract  may  be — Chicago,  etc.,  R.  Co.  v. 
Gardiner,  51  Neb.  70.  and  the  federal  courts 
will  not  seek  to  enforce  such  contracts  in 
the  jurisdiction  where  they  have  been  de- 
clared illegal  as  against  the  public  policy  of 
the  state — Schulz-Berge  v.  The  Guild  Hall. 
58  Fed.  796.  Stipulations  in  a  contract  ex- 
empting a  carrier  froiri  liability  for  negli- 
gence will  generally  be  held  void  In  another 
state,  since  the  policy  of  the  law  will  not 
allow  a  party  to  accomplish  indirectly  what 
it  will  not  allow  him  to  do  directly — Lewi- 
sohn  v.  National  Steamship  Co.,  56  Fed.  602. 
Compagnie  De  Navigacion  v.  Brauer,  168  U. 
S.   104.     See   more  fully  88  Am.   St.   Rep.   125. 

85.  Pennsylvania  R.  Co.  v.  Rogers,  52 
W.  Va.  450.  A  personal  property  exemption 
cannot  be  set  up  by  a  resident  of  North 
Carolina,  in  an  action  against  him  in  New 
York,  in  which  a  debt  due  from  an  Insurance 
company  of  New  York  for  a  loss  in  North 
Carolina  was  attached.  The  exemption  laws 
have  no  extra-territorial  effect — Sexton  v. 
Insurance  Co.,   132  N.  C.  1. 

Sa.  Bloomlngdale  v.  Weil,  29  Wash.  611: 
Same  v.  Trust  Co.,  Id. 

87.  Memphis  Sav.  Bank  v.  Houchens  (C. 
C.  A.)  115  Fed.  96. 

88.  Succession  of  Benton,  106  La.   494. 

89.  Civ.  Code,  Cal.  §§  61,  91 — In  re  Wood's 
Estate,  137  Cal.   129;   Appeal  of  T\''ood,   Id. 

Laws  Governinj?  Valitlity  of  Marriage.^ 
It  is  almost  universally  recognized  that 
statutes  prohibiting  the  guilty  party  after 
divorce  from  marrying  again  either  for  a 
certain  period  or  during  the  life  of  the  other 
party  to  the  former  marriage,  are  In  nn 
sense  extraterritorial  and  are  without  ef- 
fect outside  the  limits  of  the  state  which 
pass  them,  even  though  they  may  be  in 
terms  special. — Moore  v.  Hegeman,  92  N.  Y. 
521;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18; 
Wilson  v.  Holt,  83  Ala.  528;  Succession  v. 
Hernandez,  46  La.  Ann.  962;  Phillips  v.  Ma- 
drid, 83  Me.  205.  But  a  state,  however,  may 
provide  by  statute  that  marriages  entered 
into  by  persons  domiciled  within  the  state 
and  who  leave  it  to  marry  elsewhere  in  eva- 
sion of  its  laws,  with  the  intention  to  re- 
turn and  live  within  the  state,  are  invalid. 
The  general  rule  Is,  as  established  by  the 
great    weight   of  authority,    that   a   marriage 


564 


CONFLICT   OF   LAWS. 


§   7 


§  7.  Contracts  relating  to  realty. — Conveyances  and  contracts  concerning 
lands  are  an  exception  to  the  general  rule  in  that  they  must  conform  to  the  law  of 
the  state  where  the  land  lies.®°  A  loan  made  by  a  building  and  loan  association 
and  secured  by  a  mortgage  on  lands  in  another  state  will  be  governed  by  the  laws 
of  the  latter  state  with  respect  to  usury  though  by  the  contract  payment  was  to 
be  made  at  the  domicile  of  the  association.*^  A  loan  by  a  Maryland  building  and 
loan  association  secured  by  a  mortgage  on  land  in  the  District  of  Columbia  under 
a  stipulation  that  the  law  of  Maryland  should  govern  may  be  so  governed  where 
it  appears  that  the  rule  in  Maryland  produces  the  same  result  on  accounting  as 
that  of  the  District  .®- 

§  8.  Application  of  remedies. — Remedies  are  applied  according  to  the  law  of 
the  forum.'^  The  penalty  provided  for  usury  by  the  laws  of  the  state  where  a 
contract  was  made  will  not  be  api)lied  on  an  attempt  to  enforce  the  contract  else- 
where."* An  action  for  breach  of  a  contract  for  sale  of  goods  will  not  lie  in 
Texas  though  the  contract  is  valid  there,  where  not  enforceable  under  the  laws 
of  xVrkansas,  the  state  of  performance,  on  account  of  non-compliance  with  the 
statute  of  frauds.®"^  Delay  in  transmission  of  a  telegram  in  another  state  wherein 
such  action  will  not  lie,  will  not  prevent  an  action  for  mental  anguish  for  failure 


valid  by  the  laws  of  the  state  or  country 
where  it  is  entered  into  is  valid  in  every 
other  state  or  country,  though  it  appears 
that  the  party  went  into  such  other  state 
or  country  to  contract  the  marriage  with 
the  express  view  to  evade  the  laws  of  their 
own  country;  however,  this  does  not  ex- 
tend to  incestuous  or  polygamous  marriages 
or  to  any  marriage  prohibited  by  the  terms 
of  the  general  and  universal  law  of  the  na- 
tions, the  contract  being  governed,  even  as 
regards  the  competency  of  the  contracting 
parties,  bv  the  law  of  the  place  of  contract. 
—Van  Storch  v.  Griffin,  71  Pa.  St.  240;  Hut- 
man  v.  Hutman,  8  Pick.  (Mass.)  433;  Ross 
V.  Ross,  129  Mass.  243.  A  marriage  in  Ten- 
nessee between  a  nephew  and  his  uncle's 
widow  must  be  held  valid  in  Kentucky,  if 
not  prohibited  by  the  laws  of  Tennessee, 
though  void  if  celebrated  in  Kentucky  and 
though  the  parties  left  the  state  to  evade 
its  laws  and  returned  to  live  there  after 
the  marriage. — Stevenson  v.  Gray  (Ky.)  17 
B.  Mon.  193.  However,  it  was  held  in  Ten- 
nessee under  the  statute  that  a  marriage 
between  a  guilty  husband  or  wife  after  di- 
vorce for  adultery  and  the  person  with  whom 
the  crime  was  committed,  is  prohibited  dur- 
ing the  life  of  the  innocent  party  under  the 
former  marriage,  and  that,  if  such  contract- 
ing parties,  being  citizens  and  residents  of 
the  state,  withdraw  temporarily  to  another 
state  for  the  purpose  of  evading  its  laws  by 
marriage  and  then  return  to  live  within  the 
state,  in  the  interest  of  public  morals,  peace 
and  good  order  of  society,  the  marriage  will 
be  declared  void  in  Tennessee,  though  valid 
in  the  state  whore  celebrated. — Pennegar  v. 
State.  87  Tenn.  244.  The  rule  has  also  been 
applied  often  in  Southern  states  with  the 
result  that  marriages  between  white  persons 
and  negroes,  entered  into  in  states  where 
they  are  not  so  prohibited,  have  been  held 
void  in  states  where  they  were  against 
the  statute  and  to  which  the  parties 
returned  to  live  after  marriage — State  v. 
Ross,  76  N.  Car.  242;  State  v.  Kennedy,  76 
N  C.  251;  Kinney  v.  Commonwealth,  30 
Grat.  858:  State  v.  Tutty,  41  Fed.  Rep.  753; 
Dupree  v.  Boulad.  10  La.  Ann.  411.  It  seems 
that  a  marriage  celebrated  on  the  high  seas 


for  the  purpose  of  evading  the  laws  of  the 
state  and  then  to  return  to  that  state  to 
live,  is  a  fraudulent  evasion  of  the  laws  of 
the  state  to  which  the  citizen  owes  obedi- 
ence and  will  not  be  held  valid — Holmes  v. 
Holmes,  1  Abb.  (U.  S.)  546.  In  such  a  case 
there  is  no  local  law  w^hich  can  be  applica- 
ble to  the  contract  of  marriage,  and  the  same 
rule  applies  to  a  marriage  celebrated  on  land, 
not  within  the  jurisdiction  of  any  particu- 
lar sovereignty;  hence  the  law  of  the  domi- 
cile of  the  parties  will  probably  control  the 
marriage  and  it  cannot  be  regarded  as  valid 
if  not  sustained  by  such  law — Davis  v.  Da- 
vis, 1  Abb.  N.  C.  140.  See  further  on  valid- 
ity of  marriages,  60  Am.  St.  Rep.  941;  79 
Am.    St.    Rep.    364. 

90.  Jurisdiction  over  the  land  is  local; 
construction  of  deed  with  regard  to  cove- 
nants— Dalton  v.  T.aliaferro,  101  111.  App. 
592.  Deed  of  married  woman  executed  in 
South  Carolina  conveying  land  in  North 
Carolina  must  conform  in  its  execution  to 
Code  N.  C,  §  1256 — Smith  v.  Ingram,  130  N. 
C.  100.  A  conveyance  of  immovables  in 
Louisiana  as  between  husband  and  wife  is 
governed  by  the  laws  of  that  state — Rush 
v.  Landers,  107  La.  549,  57  L.  R.  A.  353. 
Loan  by  building  and  loan  association  se- 
cured on  property  in  another  state  from  the 
domicile  of  the  association — Hoskins  v.  Sav- 
ings &  Loan  Ass'n   (Mich.)   95  N.  W.  566. 

91.  Georgia  State  Bldg.  &  L.  Ass'n  v. 
Shannon.  SO  Miss.  642:  Hicinbothem  v.  Sav- 
ings &  Loan  Ass'n,  40  Or.  511,  69  Pac.  1018. 
However,  see  Interstate  Blclg.  &  L.  Ass'n  v. 
Edgefield  Hotel  Co..  120  Fed.   422. 

92.  Middle  States  Loan,  Bldg.  &  Const.  Co. 
V.  Baker.  19  App.  D.  C.   1. 

93.  Contract — Young  v.  Hart  (Va.)  44  S. 
B.  703.  Action  on  insurance  policy — 
Thompson  v.  Traders'  Ins.  Co.,  169  Mo.  12. 
"Whether  there  was  equity  in  a  complaint  to 
foreclose  a  mortgage  by  a  building  and  loan 
association  will  be  determined  by  the  law  of 
the  forum  though  the  association  was  or- 
ganized elsewhere — Interstate  Sav.  &  Loan 
Ass'n  v.  Badgley,  115  Fed.   390. 

94.  Crebbin  v.  Deloney,  70  Ark.   493. 

95.  Jones  v.  National  Cotton  Oil  Co.  (Tex. 
Civ.   App.)   72  S.  W.   248. 


6  s 


APPLICATION  OP  REMEDIES, 


565 


of  delivery  in  a  state  where  such  action  will  lie.®®  That  mental  anguish  is  not 
recognized  as  an  element  of  damages  for  failure  to  deliver  a  telegram  in  the  state 
where  it  was  received  will  not  prevent  recovery  in  the  state  of  delivery  where  an 
action  will  lie  for  such  cause.®^ 

Recovery  for  ivrongful  death. — The  right  of  action  for  wrongful  death,  if 
existing  in  another  state,  may  be  enforced  by  any  appropriate  remedy;  it  is  the 
remedy  wliich  must  follow  the  law  of  the  forum.®*  The  right  of  recovery  foi' 
wi'ongful  death,  especially  as  pertaining  to  the  wife  and  daughters  of  deceased, 
under  the  laws  of  Mexico  is  so  unlike  that  given  by  the  laws  of  Texas,  and  so  hard 
to  enforce  properly  under  the  statutory  or  common  law  procedure  in  Texas,  so 
as  to  protect  the  rights  of  defendant,  that  the  United  States  circuit  court  will 
refuse  to  take  jurisdiction.  That  negligent  acts  render  defendant  liable  because 
under  the  laws  of  Mexico  they  constitute  crimes  however  will  not  prevent  main- 
tenance of  the  action  in  Texas;  the  Mexican  law  not  being  contrary  to  the  public 
policy  of  Texas,  to  natural  justice  or  good  morals.®' 

Statutes  of  limitation. — Statutory  limitations  of  the  forum  will  generally 
be  applied  to  actions  brought  on  causes  arising  elsewhere,^  especially  if  the  rem- 
edy is  statutory  and  is  governed  by  the  general  statute  of  limitations  only;^  if 
the  statute  of  another  state  is  applied  the  action  must  be  maintainable  in  that 
fttate,^  and  must  have  accrued  there.*  In  an  action  for  personal  injuries  the  lim- 
itation laws  of  the  state  where  the  injury  occurred  have  been  held  to  apply.^  The 
Illinois  statute  of  limitation  providing  that  a  cause  of  action  arising  in  a  foreign 
fctate  cannot  be  sued  on  in  Illinois  if  barred  in  the  state  of  its  origin  does  not 
apply  to  a  cause  not  barred  in  the  state  of  its  origin  because  defendant  was  a  non- 
resident and  could  not  be  sued  because  without  the  state.® 


90.  The  tort  was  done  in  the  latter  state 
— Western  Union  Tel.  Co.  v.  Cooper  (Tex. 
Civ.  App.)   69  S.  W.  427. 

97.  Western  Union  Tel.  Co.  v.  Blake  (Tex. 
Civ.  App.)   68  S.   W.  526. 

Control  of  ward's  estate  as  to  investment 
of  funds  by  guardian. — Where  the  law  of 
the  place  of  his  appointment  and  of  the 
domicile  of  his  ward  is  different,  the  law  of 
the  ward's  domicile  will  control,  especially 
when  he  actually  resides  there,  but  the  form 
of  accounting,  so  far  as  concerns  the  remedy 
only,  will  be  according  to  the  law  of  the 
court  in  which  relief  is  sought;  the  applica- 
tion of  general  rules  by  which  the  guardian 
is  to  be  held  responsible  for  the  investment 
of  the  property  will  be  governed  by  the  law 
of  the  ward's  domicile — Lamar  v.  Micon,  112 
U.   S.   452.     See   89  Am.   St.   Rep.    297. 

98.  It  is  not  contrary  to  public  policy  to 
enforce  in  Arkansas  a  cause  of  action  for 
wrongful  death  which  accrued  in  Louisiana 
(Civ.  Code  La.  art.  2315  &  Sand.  &  H.  Dig. 
Ark.  §§  5908,  5911,  5912  construed) — St.  Louis, 
L  M.  &  S.  Ry.  Co.  v.  Haist  (Ark.)  72  S.  W. 
893.  In  an  action  brought  in  Michigan  for 
death  of  a  servant  occurring  in  Canada  from 
the  employer's  negligence,  a  Canadian  stat- 
ute which  prevents  application  of  the  rule 
as  to  immunity  from  liability  for  negligence 
of  fellow  servants  will  be  applied  though 
contrary  to  the  law  of  Michigan — Rick  v. 
Saginaw  Bay  Towing  Co.  (Mich.)  93  N.  W. 
632.  The  English  common  law  does  not  ob- 
tain in  Hawaii  as  to  right  to  sue  for  wrong- 
ful death,  but  by  the  action  of  the  supreme 
court  a  widow  may  sue  for  the  death  of  her 
husband — Schooner  Robert  Lewers  Co.  v.  Ke- 
kauoha  (C.  C.  A.)  114  Fed.  849.  The  ques- 
tion as  to  who  may  sue  is  of  right  and  not  of 
remedy  (Rev.  St.  Wyo.  §§  3448,  3449)  and  must 
be  followed — Thorpe  v.  Union  Pac.  Coal  Co.,  24 
Utah.  475.  68  Pac.  145.      An  action  for  wrong- 


ful death  brought  in  Indiana,  when  the  death 
occurred  in  Ohio,  will  be  governed  as  to  par- 
ties by  the  laws  of  Ohio  where  the  right  of 
action  arose  and  the  father  of  deceased  can- 
not sue — Fabel  v.  Cleveland,  C,  C.  &  St.  L. 
R5'.  Co.  (Ind.  App.)  65  N.  E.  929.  An  action 
by  next  of  kin  for  wrongful  death  given  by 
statute  in  one  state  where  the  death  occur- 
red may  be  enforced  in  another  state  where 
a  like  statute  exists  differing  only  in  that 
no  recovery  is  allowed  for  pain  and  suffering 
of  decedent — Boyle  v.  Southern  Ry.  Co.,  36 
Misc.    (N.    Y.)    289. 

99.  Mexican  Nat.  R.  Co.  v.  Slater  (C.  C. 
A.)  115  Fed.  593. 

1.  Limitation  of  an  action  by  a  non- 
resident creditor  of  a  New  York  firm  on  a 
note  made  and  payable  in  that  state  will  be 
governed  by  the  laws  of  New  York  where 
the  creditor  brings  his  action  in  that  state — 
Hixson  V.  Rodbourn,  67  App.  Div.  (N.  Y.) 
424.  The  statute  of  limitations  of  the  state 
of  a  bankrupt's  residence  governs  as  to  bar 
of  claims  of  creditors  against  his  estate — 
Hargadine-McKittrick  Dry  Goods  Co.  v. 
Hudson  (C.  C.  A.)  122  Fed.  232.  As  to  lim- 
itations, actions  for  recovery  of  damages  for 
discrimination  in  freight  rates  will  be  gov- 
erned by  the  laws  of  the  state  where  brought, 
since  the  interstate  commerce  act  contains 
no  provisions  as  to  the  time  of  bringing  ac- 
tion— Ratican  v.  Terminal  R.  Ass'n,  114  Fed. 
666. 

2.  Enforcing  statutory  liability  of  stock- 
holder without  the  state  of  organization  of 
the  corporation — Pulsifer  v.  Greene,  96  Me. 
438. 

O'Donnell  v,  Lewis,  104  111.  App.  198. 
Janeway  v.  Burton,   201  111.   78. 
Southern  Ry.   Co.  v.   Mayes    (C.  C.  A.) 
Fed.  84. 
Martin   v    Wilson    (C.   C.    A.)    120    Fed. 


3 
4, 
5 

113 
C. 

202. 


566 


CONFLICT  OF  LAWS— CONSPIRACY. 


§   9 


Construction  of  statutes  adopted  from  other  states. — A  statute  adopted  or 
copied  verbatim  from  statutes  of  another  state  will  generally  be  construed  as  al- 
ready construed  by  the  highest  court  of  the  state  of  its  origin;^  in  any  jurisdic- 
tion the  construction  given  in  the  state  of  origin  is  always  of  persuasive  aid.* 

Presumptions  and  judicial  notice  regarding  foreign  laws. — The  contrary  not 
being  shown,  the  common  law  is  presumed  to  be  the  same  in  the  different  states," 
and  the  law  on  any  particular  subject  though  statutory  will  be  presumed  to  be 
the  same  elsewhere  as  in  the  state  of  the  forum,^"  and  the  rule  applies  to  laws  of 
foreign  countries,"  but  it  has  been  held  that  the  presumption  as  to  the  com- 
mon law  will  not  apply  to  countries  where  English  institutions  have  not  been 
established.^"  In  absence  of  otiier  evidence  it  will  be  presumed  that  the  statutes 
of  another  state  are  the  same  as  those  in  the  state  of  the  forum;  if  it  is  claimed 
that  they  are  different  such  fact  must  be  alleged  and  proved.^'  Courts  of  one 
state  will  take  judicial  notice  of  the  prevalence  of  the  common  law  in  another 
state  but  statutory  modifications  thereof  must  be  proved.^*  The  United  States 
courts  will  not  take  judicial  notice  of  the  Cherokee  statutes,^^  nor  of  the  laws  of  an 
Indian  nation.^® 

§  9.  Torts. — No  action  will  lie  in  one  state  for  a  tort  committed  in  another 
state,  in  which  no  such  right  of  action  exists,  even  though  an  action  would  lie 
if  the  tort  had  been  committed  in  the  state  where  the  action  is  brought. ^^ 

§  10.  Crimes  and  misdemeanors. — Bringing  into  the  state  property  stolen 
elsewhere  is  not  larceny,^®  The  question  of  larcenj  as  to  goods  stolen  elsewhere 
and  brought  into  Oklahoma  is  to  be  determined  by  the  laws  of  Oklahoma  and  not 
the  laws  of  the  place  where  the  property  was  stolen.^' 

CONSPIRACY. 

§  1.     Civil  liability. — No  express  agreement  is  necessary." 

Particular  conspiracies. — Eefusal  of  manufacturers  to  sell  to  dealers  who  will 

not  maintain  a  uniform  price  is  not  an  actionable  boycott.**     The  legality  of  various 

acts  of  labor  unions  is  treated  in  the  note.^- 


7.  Goldman  v.  Sotelo  (Ariz.)  68  Pac.  558. 
Construction  of  Comp.  Laws,  §  5803 — Yank- 
ton Sav.  Bank  v.  Gutterson,  15  S.  D.  486. 

8.  Stephan    v.    Metzger,    95    Mo.    App.    609. 

9.  Engstrand  v.  Kleffman,  86  Minn.  403; 
Gaylord  v.  Duryea,  95  Mo.  App.  574.  Com- 
mon law  as  to  presumptions — Baltimore  & 
O.  S.  W.  R.  Co.  V.  Adams,  159  Ind.  688. 

10.  Right  of  assignee  of  reversion  to 
rents  (David  Bradley  &  Co.  v.  Peabody  Coal 
Co.,  99  111.  App.  427);  assumption  of  risk  by 
employe  (Haworth  v.  Kansas  City  Southern 
R.  Co..  94  Mo.  App.  215);  limitations  (Keagy 
V.  Wellington  Nat.  Bank  [Okl.]  69  Pac.  811); 
lien  for  logging  supplies  (Hyde  v.  German 
Nat.  Bank,  115  Wis.  170;  Angle  v.  Manches- 
ter [Neb.]  91  N.  W.  501).  It  will  be  presum- 
ed that  the  rate  of  interest  on  a  note  was 
lawful  where  It  was  executed  if  lawful 
where  it  is  sought  to  be  enforced,  no  evi- 
dence appearing  to  the  contrary — Clark  v. 
Eltinge.   29  Wash.    215,   69   Pac.   736. 

11.  Laws  authorizing  sale  of  corporate 
stock  under  execution — Daniel  v.  Gold  Hill 
Min.  Co.,  28  Wash.  411,  68  Pac.  884.  The  law 
of  Italy  governing  a  stipulation  In  a  con- 
tract for  exclusive  jurisdiction  of  the  courts 
of  Italy  will  be  presumed  the  same  as  that 
of  Massachusetts — Mittenthal  v.  Mascagni 
(Mass.)  66  N.  E.  425. 

12.  Mexico — De  Sonora  v.  Bankers'  Mut. 
Casualty  Co.  (Iowa)  95  N.  W.  232. 

13.  Barringer  v.  Ryder  (Iowa)  93  N.  W. 
56. 


14.  Rush  V.  Landers,  107  La.  549;  Cam- 
eron v.  Orleans  &  J.  Ry.  Co.,  108  La.  83;  Bank 
V.  Carr,  130  N.  C.  479. 

15.  Kelly  V.  Churchill  (Ind.  T.)  69  S.  W. 
817. 

16.  Sass  V.  Thomas   (Ind.  T.)   69  S.  W.  893. 

17.  Baltimore  &  O.  S.  W.  R.  Co.  v.  Reed, 
158  Ind.  25.  The  liability  for  negligence  re- 
sulting In  personal  injury  depends  on  the 
law  of  the  state  where  the  injury  occurred 
— El  Paso  &  N.  W.  Ry.  Co.  v.  McComas  (Tex. 
Civ.  App.)  72  S.  W.  629;  Louisville  &  N.  R. 
Co.  V.  Harmon.  23  Ky.  L.  R.  871,  64  S.  W. 
640. 

18.  Van  Buren  v.  State  (Neb.)  91  N.  W. 
201. 

19.  The  act  Is  held  larceny  In  Oklahoma — 
Barclay  v.  United  States,  11  Okl.  503,  69  Pac. 
798. 

20.  Patnode  v.  Westenhaver,  114  Wis.  460. 

21.  John  D.  Park  &  Sons  Co.  v.  National 
Wholesale  Druggists  Ass'n,  175  N.  Y.   1. 

22.  Employes  may  combine  to  quit  their 
employment — Union  Pac.  R.  Co.  v.  Ruef,  120 
Fed.  102;  Wabash  R.  Co.  v.  Hannahan,  121 
Fed.  563.  Though  their  grievance  is  the 
refusal  to  discharge  nonunion  employes — 
National  Protective  Ass'n  v.  Cumming,  170  N. 
Y.  315.  But  a  resort  to  Intimidation  to  se- 
cure the  co-operation  of  other  employes  is 
unlawful — United  States  v.  Haggerty,  116 
Fed.  510;  Frank  v.  Herold,  63  N.  J.  Eq.  443; 
Wabash  R.  Co.  v.  Hannahan,  121  Fed.  563; 
Benton   v.   Tarrant.    102   111.   App.    124:   J«>rsey 


§2 


CRIMINAL   CONSPIRACY. 


567 


Actions. — All  conspirators  need  not  be  joined.^*  The  declarations  of  con- 
spirators in  pursuance  of  the  conspiracy  are  admissible  against  each  other.**  Hold- 
ings as  to  sufficiency  of  pleadings^''  and  evidence^®  are  found  in  the  note. 

§  2.  Criminal  liability.  Indictable  conspiracies. — The  fact  that  the  details  of 
the  overt  act  alleged  in  indictment  were  not  known  at  the  time  of  the  conspiracy 
is  immaterial. ^^  A  conspiracy  to  depreciate  the  value  of  a  corporate  stock,^*  to  de- 
fraud one  of  money,  though  the  conspirators  might  have  recovered  it  from  him  by 
action,^'  and  though  neither  the  object  nor  the  means  are  criminal/*^  or  to  fraud- 
ulently obtain  a  patent  to  government  lands/^  is  indictable.  Conspiracy  to  defraud 
an  individual  by  use  of  the  mails  is  not  an  "offense  against  the  United  States," 
within  TJ.  S.  Eev.  St.  §  5440.^'^ 

Defenses.^^ — The  statute  of  limitations  runs  from  the  last  overt  act.'*     It  is 


City  Printing  Co.  v.  Cassidy,  68  N.  J.  Bq. 
76a, 

An  organization  of  the  employes  of  a  re- 
ceiver with  intent  to  call  a  sympathetic 
strike  is  illegal  in  its  object — United  States 
V.  Weber,  114  Fed.  950.  Boycotts  are  gen- 
erally considered  Illegal — Beattie  v.  Calla- 
nan,  82  App.  Dlv.  (N.  Y.)  7;  Rourke  v.  Elk 
Drug  Co.,  75  App.  Div.  (N.  Y.)  145.  See, 
however,  Marx  &  H.  Jeans  Clothing  Co.  v. 
Watson,  168  Mo.  133,  in  which  an  injunction 
against  a  boycott  was  said  to  Impair  the 
right  of  free  speech. 

BOYCOTT.  (KOTB.)  A  boycott  Is  a  com- 
bination of  many  to  cause  loss  to  one  per- 
son by  coercing  others  against  their  will  to 
withhold  from  him  their  beneficial  business 
intercourse  through  threats,  that  unless 
those  others  do  so,  the  many  will  cause 
similar  loss  to  them.  Unlawful  boycotts  in- 
clude those  that  are  threatening  in  their  na- 
ture and  intended  and  naturally  calculated 
to  overcome  by  fear  of  loss,  the  will  of  oth- 
ers— Beck  v.  Railway  Teamsters'  Union.  118 
Mich.  497,  74  Am.  St.  Rep.  421.  Injunction 
may  issue  against  circulation  of  boj'-cotting 
notices — Id.  Cases  collected  in  note  to 
Marx  &  H.  Jeans  Clothing  Co.  v.  Watson,  168 
Mo.   133,   90  Am.  St.  Rep.   440,   451. 

Picketing  Is  not  unlawful  unless  accom- 
panied by  violence — Union  Pac.  R.  Co.  v. 
Ruef,  120  Fed.  102;  Poster  v.  Retail  Clerks' 
Protective  Ass'n,  39  Misc.  (N.  Y.)  48.  But  In 
case  of  intimidation  of  employes  an  Injunc- 
tion will  lie — Jersey  City  Printing  Co.  v. 
Cassidy,  63  N.  J.  Eq.  759;  Beaton  v.  Tarrant, 
102  111.  App.  124;  Herzog  v.  Fitzgerald,  74 
App.  Div.  (N.  Y.)  110.  And  union  officers 
are  not  relieved  from  liability  by  Instruc- 
tions to  the  pickets  to  refrain  from  violence 
— Union  Pac.  R.  Co.  v.   Ruef,   120  Fed.   102. 

23.  Rourke  v.  Elk  Drug  Co.,  75  App.  Dlv. 
(N.  Y.)  145. 

24.  Boyer  v.  Welmer,  204  Pa.  295;  Cohn  v. 
Saldel,  71  N.  H.  558;  Cleland  v.  Anderson 
(Neb.)  92  N.  W.  306;  Mosby  v.  McKee,  Z.  & 
W.  Commission  Co.,  91  Mo.  App.  500;  Con- 
necticut Mut.  Life  Ins.  Co.  v.  Hillmon,  188  U. 
S.  208;  Avard  v.  Carpenter,  72  App.  Div.  (N. 
Y.)  258;  Thompson  v.  Rosenstein  (Tex.  Civ. 
App.)   67  S.  W.  439. 

25.  Complaint  alleging  various  overt  acts 
states  but  one  cause  of  action — Rourke  v. 
Elk  Drug  Co.,  75  App.  Dlv.  (N.  Y.)  145.  Com- 
plaint for  oonsplracy  to  boycott  held  to  state 
cause  of  action — Id.  Where  the  action  is 
for  the  overt  act,   failure  of  proof  of  allega- 


tions of  conspiracy  is  not  fatal — Young  v. 
Gormley  (Iowa)  93  N.  W.  565.  And  e  con- 
verso  It  Is  held  that  in  an  action  for  deceit 
conspiracy  may  be  shown  though  not  alleged 
— Butler  V.   Duke,   39  Misc.    (N.  Y.)    235. 

26.  Evidence  of  conspiracy  to  obtain 
property  by  fraudulent  promise  of  marriage 
held  sufficient — Patnode  v.  Westenhaver,  114 
Wis.  460. 

27.  Conspiracy  to  procure  the  casting  of 
certain  illegal  votes.  The  names  of  the 
voters  to  be  procured  as  charged  in  the 
indictment  were  unknown  when  the  con- 
spiracy was  formed — Commonwealth  v.  Rog- 
ers, 181  Mass.  184. 


28, 

29,    30. 
727. 

31. 
642. 

32. 


People  V.   Goslin,   171  N.   Y.   627. 

State    V.    Gannon    (Conn.)    62    Atl. 

United    States    v.    Peuschel,    116    Fed. 


United  States  v.  Clark,  121  Fed.  190. 
[NOTE.] — Indictable  Conspiracies.  A  lead- 
ing case  In  Maryland,  exhaustively  reviewed 
the  early  English  cases,  and  concluded  that 
an  Indictment  would  lie  In  the  following 
cases: 

1.  For  a  conspiracy  to  do  any  act  that  Is 
criminal    per   se. 

2.  For  a  conspiracy  to  do  an  act  not  Il- 
legal, nor  punishable,  If  done  by  an  individ- 
ual,   but    immoral    only. 

3.  For  a  conspiracy  to  do  an  act  neither 
illegal  nor  immoral  in  an  individual,  but  to 
effect  a  purpose  which  has  a  tendency  to 
prejudice   the   public. 

4.  For  a  conspiracy  to  extort  money  from 
another,  or  to  injure  his  reputation,  by 
means  not  Indictable  if  practiced  by  an  In- 
dividual. 

5.  For  a  conspiracy  to  cheat  and  defraud 
a  third  person,  accomplished  by  means  of 
an  act  which  would  not  in  law  amount  to 
an  indictable  cheat.  If  effected  by  an  In- 
dividual. 

6.  For  a  malicious  conspiracy  to  Impover- 
ish or  ruin  a  third  person  In  his  trade  or 
profession. 

7.  For  a  conspiracy  to  defraud  a  third 
person  by  means  of  an  act  not  per  se  un- 
lawful, and  though  no  person  be  Injured 
thereby. 

8.  For  a  bare  conspiracy  to  cheat  and  de- 
fraud a  third  person,  though  the  means  of 
effecting  it  may  not  be  determined  on  at 
the  time.  State  v.  Buchanan,  5  Har.  &  J. 
(Md.)    317,   9  Am.   Dec.  534. 

33.  It  Is  no  defense  to  an  Indictment  for 
oonsplracy  to  cast  Illegal  votes  at  a  primary 


568 


CONSPIRACY. 


g  2 


no  defense  that  defendant's  co-conspirator  is  immune  from  prosecution  by  reason 
of  having  testified.'" 

Under  Ky.  Cr.  Code,  §  262,  conspiracy  to  commit  a  felony  does  not  merge  in 
the  completed  felony.'® 

]yho  liable. — Each  conspirator  is  liable  for  the  acts  of  all  within  the  purview 
of  the  conspiracy.'^ 

Indictments  passed  on  are  collected  in  the  note.'*  An  indictment  for  conspiracy 
to  "commit  a  crime  against  the  United  States"  need  not  fully  describe  the  proposed 
crime." 

Evidence. — Conspiracy  may  be  shown  by  circumstantial  evidence,*"  and  evidence 
of  individual  acts  tending  to  a  common  purpose  is  sufficient.*^  Knowledge  and 
participation  by  defendant  must  be  shown.*^  Overt  acts  in  another  county  may 
be  shown.*'  Acts  and  declarations  of  a  conspirator  in  furtherance  of  the  common 
object  are  admissible  against  his  co-conspirators,**  but  not  acts  and  declarations  after 
such  object  has  been  accomplished,*"  nor  narration  of  past  occurrences.*"  There 
must  be  preliminary  proof  of  the  fact  of  conspiracy,*'  though  the  order  of  proof 
is  discretionar}'.** 


that  the  arrangements  at  the  polling  place 
did  not  conform  to  la'w  or  that  the  ward- 
en Tvas  illegally  elected — Commonwealth  v. 
Rogers,  181  Mass.  184. 

34.     United   States  v.  Greene.  115  Fed.  343. 

:s.~.  Weber  v.  Commonwealth,  24  Ky.  L.  R. 
1726,   72  S.   W.  30. 

3C.  Wait  V.  Commonwealth,  24  Ky.  L.  R. 
604.  69  S.  W.  697. 

37.  Handley  v.  State,  115  Ga.  684. 

38.  Indictment  to  procure  casting  of  Ille- 
gal votes  need  not  state  the  particular  dis- 
qualification of  the  voters,  and  may  without 
duplicity  allege  conspiracy  to  procure  votes 
Illegal  under  several  statutes — Common- 
wealth V.  Rogers,  181  Mass.  1S4.  Sufficiency 
of  indictment  to  defraud  United  States  by 
making  false  entries  on  public  lands  (United 
States  V.  Peuschel,  116  Fed.  642);  by  over- 
charges on  public  contract — United  States  v. 
Greene.  115  Fed.  343.  An  indictment  for 
"contriving  propagating  and  spreading"  ru- 
mors tending  to  depress  stocks  is  sufficient 
though  the  statutory  term  is  "circulates" — 
People  V.  Goslin,  171  N.  Y.  627.  A  count  for 
conspiracy  to  commit  an  offense  may  be 
Joined  with  one  for  aiding  and  abetting  in 
the  commission  thereof  without  an  averment 
that  the  offenses  were  the  same — Common- 
wealth v.  Rogers,  181  Mass.  184.  Indictment 
for  conspiracy  to  procure  violation  of  Rev. 
St.  5  5425,  relating  to  issue  of  false  certifi- 
cates of  naturalization — United  States  v. 
Melfl,  118  Fed.  899.  An  indictment  may 
without  duplicity  allege  the  commission  of 
the  offense  which  was  the  object  of  the  con- 
spiracy— State  V.  Gannon  (Conn.)  52  Atl. 
727. 

[NOTE]. — The  Indictment  must  be  clear 
and  specific,  and  the  English  practice  which 
sustains  indictments  for  conspiracy  in  gen- 
eral terms  is  disapproved  (United  States  v. 
Crulkshank.  92  U.  S.  542).  The  overt  act 
need  not  be  alleged  (People  v.  Arnold,  46 
Mich.  268),  nor  need  the  means  agreed  on  be 
stated  if  the  act  which  is  the  object  of  the 
conspiracy,  be  unlawful  (State  v.  Crowley. 
41  Wis.  271;  State  v.  Ripley,  31  Me.  386),  and 
where  the  conspiracy  Is  to  commit  a  crime 
having  a  specific  name.  It  may  be  described 


by  that  name  In  the  Indictment  (TTazen  v. 
Commonwealth,  23  Pa,  St.  353).  Where  th» 
object  of  the  conspiracy  has  been  accom- 
plished, greater  particularity  is  required  In 
the  indictment  (State  v.  Noyes,  25  Vt.  415; 
Commonwealth  v.  Hunt,  4  Mete.  111).  It  has 
been  held  in  a  leading  case  that  an  indict- 
ment for  conspiracy  may  be  found  against 
one  conspirator  separately  (People  v.  Rich- 
ards, 67  Cal.  412).  Cases  collected  In  note. 
3  Am.  St.  Rep.  413. 

39.  Ching  V.  United  States  (C.  C.  A.)  118 
Fed.  538. 

40.  Dixon  V.  State,  116  Ga.  186. 

41.  State   V.   Gannon    (Conn.)    52    Atl.    727. 
43.     State  v.   Dreany,   65   Kan.    292.   69   Pac. 

182.  Evidence  held  sufficient  to  show  par- 
ticipation In  conspiracy  to  procure  illegal 
voting — Commonwealth  v.  Rogers.  181  Mass. 
184.  To  show  participation  in  conspiracy  to 
depress  stocks  by  circulating  false  reports — 
People  v.  Goslin,  171  N.  Y.  627. 

43.  State  V.  Soper,  118  Iowa,  1. 

44.  Crittenden  v.  State,  134  Ala.  145;  State 
V.  Dunn,  116  Iowa,  219;  Commonwealth  v. 
Rogers,  181  Mass.  184;  Nelson  v.  State  (Tex. 
Cr.  App.)  67  S.  yv.  320;  Barber  v.  State  (Tex. 
Cr.  App.)    69  S.  W.  515. 

45.  State  V.  Soper.  118  Iowa,  1;  Common- 
wealth V.  Rogers,  181  Mass.  184;  State  r. 
Aiken,  41  Or.  294.  69  Pac.  683;  Steed  v.  State 
(Tex.  Cr.  App.)  67  S.  W.  328.  Where  the  act 
though  subsequent  to  the  crime  was  pursu- 
ant to  the  conspiracy  It  is  admissible— Pow- 
ers V.  Commonwealth,  24  Ky.  L.  R.  1007,  70 
S.  W.  644. 

46.  People  V.  Gonzales,  136  Cal.  666,  69 
Pac.    487. 

47.  Young  V.  State  (Tex.  Cr.  App.)  69  S. 
W.  153.  Admissibility  and  sufficiency  of 
such  proof — State  v.  Dunn,  116  Iowa,  219; 
Commonwealth  v.  Rogers,  181  Mass.  184; 
Young  v.  State  (Tex.  Cr.  App.)  69  S.  W.  153; 
Freese  v.  State,  159  Ind.  597;  Chadwell  v. 
Commonwealth,  24  Ky.  L.  R.  818,  69  S.  W. 
10S2;  Powers  v.  Commonwealth,  24  Ky.  L.  R- 
1007,  1186,  70  S.  W.  644,  1050;  State  v.  Prater, 
52  W.  Va.  132. 

48.  State  v.   Bolden,   109  La.   484;  State  ▼. 
'  Prater,  62  W.  Va.  132. 


CURRENT  LAW. 

(Copyrighted  ISO*  by  Joha  B.  West  Company.) 


Volume  I. 


DECEMBER,  1903. 


NUMBBB  5. 


CONSTITUTIONAL  LAW. 


§  1.     Adoption   and   Amendment. 

§  2.     Operative    Korce    and    E^ffect. 

§  3.      General    Rules    of    Interpretation. 

§  4.  E^xecutive,  Legislative  and  Judicial 
Functions. 

§  5.  Relative  Fonrera  of  Federal  and  State 
Governments. 

§  6.     Police  Power  In   General. 

§  7.  Liberty  of  Contract  and  Right  of 
Property. 

§  8.     Freedom  of  Speech  and  the  Press. 

i  9.     Personal   and   Religious   Liberty. 

S   10.      Squal   Protection  of  LaTvs. 

§  11.  Privileges  and  Immunities  of  Citi- 
zens. 

§  13.  Grants  of  Special  Privileges;  Class 
Legislation. 

§  13.  Laivs  Impairing  Obligation  of  Con- 
tract. 


§  14. 
Rights. 
§  15. 
§  16. 
§   17. 


Retroactive        Legislation ;        Vested 


Due  Process  of  Law. 
Conipeusation    for   Taking   Property. 
Right    to    Justice    and    Guaranty    of 
Remedies. 

§  IS.     Jury  Trials  Preserved. 
§  19.      Crimes,     Prosecutions,     Punishments 
and   Penalties. 

§  20.      Searches  and  Seizures. 
§  21.      Suffrage    and   Flections. 
§  22.     Frame  and   Organization  of  Govern- 
ment; Courts;  Officers. 

§  23.     Taxation  and  Fiscal  Affairs. 

Scliools       and       Fducation;       School 


§  24. 
Funds. 
§  25. 
§  26. 
§  27. 


Commerce. 

Fnactnient  of  Statutes. 

Miscellaneous  Provisions   other  than 


Foregoing. 


§  1.  Adoption  and  amendment  of  constitutions. — A  constitution  acknowledged 
by  the  officers  administering  government,  accepted  by  the  people  of  the  state,  and 
enforced  throughout  the  state,  there  being  no  government  in  existence  under  a  former 
constitution  denying  its  validity,  will  be  regarded  as  the  existing  constitution,  with- 
out regard  to  whether  the  convention  had  power  to  promulgate  the  same  without 
submission  to  the  people.*' 

It  is  not  generally  necessary  that  a  proposed  amendment  should  have  a  title, 
though  there  is  no  reason  why  a  title  should  not  be  given  for  purposes  of  identifica- 
tion and  verification.^"  The  word  "read"  in  a  constitutional  provision,  requiring 
a  proposed  amendment  to  be  read  in  full  three  times  on  three  separate  days  in  both 
legislative  houses,  is  interpreted  according  to  its  received  meaning  by  legislative 
bodies,  and  not  in  its  popular  sense.**^  In  voting  on  a  constitutional  amendment, 
the  voters  exercise  a  legislative  function  and  are  for  that  purpose  a  part  of  the 
legislative  branch  in  the  state  government."^  The  amendment  and  not  the  section 
as  amended  should  be  submitted  to  the  voters.''^  Wliere  one  object  is  sought  by 
an  amendment,  separate  submission  is  not  required  by  the  fact  that  several  changes 
are  proposed  to  accomplish  it.°*  A  petition  for  the  submission  of  the  constitutional 
amendment  not  being  required  in  Louisiana,  the  validity  of  an  amendment  when 


49.  Taylor  v.  Commonwealth  (Va.)  44  S. 
E.    754. 

50,  51.  Saunders  v.  Board  of  Liquidation 
(La.)  34  So.  457. 

52.  And  courts  are  without  power  to  In- 
terfere with  submission  on  the  ground  that 
the  amendment  will  be  Invalid  if  adopted — 
People  V.   IHills,   30  Colo.   262,   70  Pac.   322. 

53.  Where  submitted  in  the  latter  form 
the   matter   will   be   regarded   as   surplusage 


not  affecting  the  result — Gabbert  v.  Chicago, 
R.   L  &  P.  Ry.  Co.,  171  Mo.  84. 

54.  An  amendment  allowing  rendition  of 
a  verdict  by  two-thirds  of  a  jury  in  courts 
not  of  record  and  by  three-fourths  of  a  jury 
in  courts  of  record,  does  not  require  sepa- 
rate submissions,  the  one  purpose  of  the 
amendment  being  to  abolish  unanimity  of 
verdicts — Gabbert  v.  Chicago.  R.  I.  &  P.  Ry. 
Co.,  171  Mo.  84;  Hubbard  v.  St.  Louis  R.  Co. 
(Mo.)  72  S.  W.  1073. 


(569) 


570 


CONSTITUTIONAL  LAW. 


§   2 


adopted  will  not  be  made  to  depend  upon  the  petition  asking  for  its  submission." 
The  ratification  of  a  statute  by  a  constitutional  amendment  does  not  necessarily 
make  the  statute  a  part  of  the  constitution;  its  effect  is  merely  to  validate  the  act, 
and  where  the  amendment  as  ratified  and  approved  allows  the  legislature  to  amend 
in  certain  particulars,  the  statute  becomes  a  part  of  the  constitution  with  this 
reservation."^' 

§  2.  Operative  force  and  effect. — Constitutional  restrictions  based  on  public 
policy  are  as  valid  as  other  provisions,  and  the  legislature  is  without  power  to  enact 
laws  in  opposition  thereto."*^ 

Constitutions  operate  prospectively,"  and  are  generally  without  effect  on  suits 
pending  at  the  time  of  their  adoption."^'  An  amendment  is  not  operative  before  a 
canvass  of  the  vote  on  its  adoption.®" 

Acts  in  force  at  the  time  of  the  adoption  of  the  constitution  and  not  inconsistent 
therewith  continue  in  force  imtil  repealed  by  the  legislature.®^  Inconsistent  pro- 
visions are  impliedly  repealed.®^ 

Congress  having  complete  authority  over  Indians,  an  act  of  congress  will  super- 
sede a  provision  in  the  constitution  of  an  Indian  nation.*' 

Self -executing  provisions. — A  provision  in  the  constitution  giving  the  supreme 
court  power  to  issue  writs  of  mandamus  is  self-executing;'*  likewise  a  provision 
making  directors  and  trustees  of  corporations  joint  and  severally  liable  to  creditors 
of  stockholders  for  misappropriated  funds.'*  A  provision  fixing  the  rate  of  inter- 
est on  trust  funds  held  by  the  state,  and  requiring  semi-annual  distribution  of  such 
interest,  is  not  self-executing  so  as  to  authorize  a  state  auditor  to  pay  interest  to 
state  institutions  without  an  appropriation."  A  constitutional  provision  of  self- 
executing  character  becomes  a  part  of  laws  enacted  thereunder,  and  controls  wherein 
there  is  a  difference,  so  that  the  statute  will  not  be  rendered  invalid,  but  will  be 
construed  as  though  the  constitutional  language  had  been  inserted  in  the  act.*' 

§  3.  Interpretation  and  exposition.  A.  When  called  for.^^ — Courts  will  gen- 
erally refuse  to  pass  upon  the  constitutionality  of  a  statute,  unless  absolutely  neces- 
sary to  a  decision  of  the  case.'*     The  constitutionality  of  an  act  may  not  be  tested 


K5.     Brennan  v.  Sewerage  &  "Water  Board, 

108  La.  569.  A  tax  adopted  into  a  constitu- 
tion in  accordance  with  a  vote  on  a  petition 
authorizing  the  tax  wliich  reque.sted  a  con- 
stitutional amendment  to  carry  out  the  tax 
scheme  is  subject  to  the  conditions  of  the 
petition    for    the    election — State    v.    Kohnke, 

109  La.    838. 

50.     State  v.    Kohnke,   109  La.   838. 

57.  Hannah  v.   People,   198  111.   77. 

58.  Adams  v.  Dendy  (Miss.)  33  So.  843. 
Where  at  the  time  of  an  execution  of  a 
mortgage,  the  constitution  required  record, 
a  subsequent  change  In  the  constitution  dis- 
pensing with  this  requirement,  would  not 
affect  a  mortgage  previously  executed — 
Blouin  V.  Ledet,  109  La.  709.  A  constitu- 
tional provision  prescribing  the  metliod  of 
waiving  a  homestead  has  application  only 
to  homesteads  set  oft  after  the  adoption  of 
the  constitution — Ex  parte  Jeter,  64  S.  C.  405. 

59.  Conyers  v.  Commissioners  of  Roads, 
116  Ga.  101.  .\mendment  as  to  qualifications 
of  jurors  (Nov.,  1902)  is  not  retroactive — 
Cubine  v.  State  (Tex.  Cr.  App.)   73  S.  "W.  396. 

60.  Glrdner  v.   Bryan,    94   Mo.   App.    27. 

61.  State  V.  O'Nell  Lumber  Co.,  170  Mo.  7. 

62.  Chicago  &  E.  R.  Co.  v.  Keith,  67  Ohio 
St.   279.   60   L.   R.   A.   525. 

63.  Ansley  v.  Ainsworth  (Ind.  T.)  69  S.  W. 
884. 


Keady  v.  Owers  (Colo.)   69  Pac.  509. 
Rice  V.  Howard   (Cal.)   69  Pac.  77. 
State    V.    Cole    (Miss.)    32    So.    314. 
Shively    v.    Lankford    (Mo.)    74    S.    W 


64. 
65. 
66. 
67. 

835. 

68.  Enactment  and  validity  of  statutes  as 
dependent  upon  constitutional  provisions 
governing  their  consideration  and  enactment 
by  the  legislature,  see  the  topic  "Statutes." 

69.  State  V.  King  (Mont.)  72  Pac.  667; 
Joralman  v.  McPhee  (Colo.)  71  Pac.  419; 
Gladwin  Tp.  v.  Bourret  Tp.  (Mich.)  91  N.  "W. 
618;  State  v.  Hardelein,  169  Mo.  579;  State  v. 
Courtney.  27  Mont.  378,  71  Pac.  308;  State  v. 
Curler,  26  Nev.  347,  67  Pac.  1075;  Hart  v. 
Smith.  159  Ind.  182;  Summerson  v.  Schilling. 
94  Md.  5S2;  Morse  v.  Omaha  (Neb.)  93  N. 
"W.  734.  The  constitutionality  of  an  act  cre- 
ating a  court  will  not  be  decided  where  It  Is 
not  necessary  to  the  disposition  of  the  case, 
and  the  members  of  the  court  are  not  par- 
ties— Platte  Land  Co.  v.  Hubbard  (Colo.) 
69  Pac.  514.  Under  the  rule  that  courts  will 
refuse  to  consider  constitutional  questions 
unless  necessary  to  a  determination  of  the 
case,  the  court  will  not  determine  the  con- 
stitutionality of  an  act  allowing  suits 
against  the  United  States  government  where 
the  only  purpose  of  such  actions  Is  to  fur- 
nish Congress  witli  information,  and  such 
judgments  are  merely  reported  to  Congrres* 


§  3B 


INTERPRETATION. 


571 


without  a  showing  that  the  party  was  injured  by  its  application/"  The  particular 
defect  must  be  pointed  out,  and  objection  to  the  statute  as  a  whole  is  not  sufficient.''^ 

Generally,  a  constitutional  question  cannot  be  raised  for  the  first  time  on  ap- 
peal."    It  may  be  determined  in  an  application  for  writ  of  habeas  corpus.''^ 

A  constitutional  objection  is  not  waived  by  the  fact  that  the  objecting  party 
had  acted  under  the  presumption  that  it  was  valid,'''*  but  where  he  institutes  pro- 
ceedings under  an  act,  he  may  not  question  its  constitutionality.''^  Under  a  law 
authorizing  the  revocation  of  a  liquor  license  on  failure  of  licensee  to  file  a  verified 
answer  denying  violations  of  the  law,  licensee  is  not  estopped  to  question  the  con- 
stitutionality of  the  act  by  reason  of  the  court  accepting  an  unverified  answer  from 
him.^' 

B.  General  rules  of  interpretation. — Words  will  be  given  their  ordinary  mean- 
ing unless  the  context  makes  it  plain  that  they  have  been  used  in  a  technical  sense.''^ 
Wliere  a  word  or  term  is  used  in  the  constitution  in  a  plain  and  manifest  sense,  it 
will  be  accorded  the  same  interpretation  when  used  in  other  parts,  unless  the  con- 
text indicates  a  different  meaning.''®  A  proviso  should  be  confined  to  the  ante- 
cedent next  preceding  it,  unless  the  contrary  intention  clearly  appears.^®  The  rule 
that  where  a  statute  is  re-enacted  in  the  same  words,  the  interpretation  placed  upon 
it  must  be  considered  as  adopted  along  with  it,  applies  to  the  construction  of  the 
constitution.^** 

The  proceedings  of  the  convention  may  be  consulted  in  determining  the  mean- 
ing of  doubtful  provisions.®^  Due  effect  will  be  given  to  long  continued  and  un- 
questioned interpretation  by  the  legislature,  and  officers  whose  duty  it  is  to  carry 
the  provisions  into  effect.®^ 

Enactments  against  the  spirit  of  the  constitution  may  be  declared  void,  though 
not  expressly  prohibited  by  the  instrument.®^ 


to  take  action  on  as  It  should  deem  fit  and 
are  in  no  sense  operative  against  the  gov- 
ernment prior  to  the  Congressional  consid- 
eration— United  States  v.  McCrory  (C.  C.  A.) 
119   Fed.    861. 

70.  Turpin  v.  Lemon,  187  U.  S.  51;  Turn- 
quist  V.  Cass  County  Drain  Com'rs,  11  N.  D. 
514;  Ely  v.  Rosholt,  11  N.  D.  559;  State  v. 
Smiley,  65  Kan.  240,  69  Pac.  199;  Donaldson 
V.  State  (Ind.)  67  N.  E.  1029;  Lufkin  v.  Luf- 
kin,  182  Mass.  476.  Where  the  constitution 
fixes  the  time  for  action,  the  party  may  not 
object  that  tlie  statute  conflicts  therewith 
where  the  constitutional  time  had  expired — 
Globe  Lumber  Co.  v.  Griffeth.  107  La.  621. 
A  dram  shop  keeper  prosecuted  tor  selling 
liquor  on  which  the  tax  had  not  been  paid, 
may  as.sail  the  constitutionality  of  the  act 
imposing  the  tax  on  the  manufacturer — 
State  V.  Bengsch.  170  Mo.  81.  A  non-resi- 
dent property  owner  who  does  not  appear 
after  notice  to  protest  cannot  obtain  a  re- 
view of  the  vionstitutionality  of  the  laws 
limiting  the  riglit  to  protest  to  resident  own- 
ers— Field  V.  Barber  Asphalt  Pav.  Co.,  117 
Fed.  925. 

71.  Dawson  v.  Waldhelm.  91  Mo.  App.  117. 

72.  Cauble  v.  Craig,  94  Mo.  App.  675; 
Keller  v.  Home  Life  Ins.  Co.,  95  Mo.  App. 
627;  In  re  Kipp,  70  App.  Div.  567,  10  N.  Y. 
Ann.  Cas.  456;  State  v.  Smith  (Mo.)  75  S.  TV. 
468.  Constitutionality  of  an  ordinance  is  not 
raised  in  the  lower  court  by  an  objection  to 
its  introduction  in  evidence  as  null  and 
void — Id.  Tlie  fact  that  a  contestant  in  an 
election  contest  did  not  specify  his  ground 
of  demurrer  to  Jurisdiction  of  contest  board. 


that  the  act  creating  the  board  was  not  con- 
stitutional, will  not  prevent  him  from  rely- 
ing on  that  ground  on  appeal — Davison  v. 
Johnson,   24  Ky.  L.  R.   27,  67  S.   W.  996. 

73.  In  re  Jarvls  (Kan.)  71  Pac.  576. 

74.  O'Brien  v.  Wheelock,  184  U.  S.  450,  46 
U.   S.   Lawy.   Ed.   636. 

75.  Comesky  v.  Village  of  SufCern,  115  N. 
Y.  St.  Rep.  1049;  Moore  v.  Napier,  64  S.  C. 
•564.  One  who  has  appeared  and  contested, 
cannot  question  the  constitutionality  of  an 
act  on  the  ground  that  it  fails  to  provide  for 
notice — Quin   v.    State    (Miss.)    33    So.    8.'?9. 

76.  In  re  Cullinan,  115  N.  T.   St.   Rep.  567. 

77.  Hamilton  Nat.  Bank  v.  American  Loan 
&  Trust  Co.  (Neb.)  92  N.  W.  189;  Bpping  v. 
Columbus  (Ga.)  43  S.  E.  803.  A  village  is  in- 
cluded in  the  term  '"town"  under  the  con- 
stitutional provision  giving  legislature 
power  to  provide  for  the  organization  of 
cities  and  towns — Brown  v.  Village  of 
Grangeville  (Idaho)  71  Pac.  151.  The  word 
"business"  In  the  Utah  constitution  provid- 
ing that  all  civil  and  criminal  business  aris- 
ing in  such  county  must  be  tried  in  such 
county,  means  "actions" — White  v.  Rio 
Grande  Western  Ry.  Co.,  25  Utah,  346,  71 
Pac.    593. 

78.  Epping  v.  Columbus  (Ga.)  43  S.  E. 
803. 

7».     State   V.    Quayle    (Utah)    71    Pac.    1060. 

SO.  Globe  Lumber  Co.  v.  Clement  (La.) 
34    So.    595. 

81,  83.  Epping  v.  Columbus  (Ga.)  43  S.  E. 
803. 

83.     Cain    v.    Smith    (Ga.)    44   S.   E.    5;   Lex- 


572 


CONSTITUTIONAL  LAW. 


8  4 


Presumptions  favor  the  constitutionality  of  statutes,®*  but  not  where  a  por- 
tion of  the  act  has  been  held  unconstitutional  and  the  validity  of  the  remainder 
is  challenged."  Wliere  one  of  two  interpretations  of  a  statute  will  bring  the  act 
within  the  constitution,  and  the  other  will  conflict  therewith,  the  former  will  be 
adopted.®*  The  conflict  must  be  shown  beyond  all  reasonable  doubt,"  and  must 
be  manifest.®* 

Courts  will  not  inquire  into  the  motives  of  the  legislature,®*  nor  the  wisdom 
of  their  enactments.®"  A  statute  satisfying  the  requirements  of  the  constitution 
will  not  be  declared  unconstitutional  on  the  ground  that  it  is  opposed  to  public 
policy." 

An  act  is  not  rendered  entirely  invalid  by  tlie  fact  that  it  contains  an  uncon- 
stitutional provision,  if  what  remains  is  complete  and  enforceable,^^  but  though  an 
act  be  valid  under  one  provision,  it  may  be  declared  void  where  expressly  prohibited 
by  another  provision.*^  A  penal  act  cannot  be  sustained  as  within  the  constitutional 
power,  where  it  is  broader  than  the  constitutional  provision,  and  the  language  covers 
acts  without  as  well  as  wthin  the  constitutional  limitation."* 

§  4.  Executive,  legislative  and  judicial  functions.  Executive  functions. — A 
governor  may  act  administratively  as  a  member  of  a  levee  board  without  transcend- 
ing his  functions.""^ 

Following  the  majority,"®  Missouri  holds  that  the  legislature  may  not  take  from 
the  executive  the  appointment  of  administrative  officers;"^  Maryland  holds  that 
this  is  also  a  nonjudicial  function;"®  New  Jersey,  on  the  contrary,  holds  that  their 
appointment  is  not  solely  for  the  executive,  but  may,  under  legislative  sanction,  be 
exercised  by  a  court,  since  the  appointive  power  is  not  strictly  referable  to  either 


Ington  V.  Thompson.  24  Ky.  L.  R.  384,  68 
S.  W.  477.  57  L.  R.  A.  775;  State  v.  Kohnke. 
109   La.   838. 

84.  Ross  V.  Board  of  Chosen  Free  Hold- 
ers (N.  J.  Law)  55  Atl.  310;  Commonwealth 
V.   Mintz.   19    Pa.   Super.   Ct.    283. 

85.  Western  Union  Tel.  Co.  v.  Austin 
(Kan.)    72    Pac.    850. 

86.  Grinage  v.  Times  Democrat  Pub.  Co.. 
107  La.  121;  Cass  County  v.  Sarpy  County 
(Neb.)  92  N.  W.  635;  Sugden  v.  Partridge. 
174  N.  Y.  87;  State  v.  Lewis  (Utah)  72  Pac. 
388;  People  v.  Rose  (111.)  67  N.  E.  746.  The 
constitutionality  of  a  .statute  will  be  sus- 
tained if  possible,  and  in  cases  of  doubtful 
terms  or  meaning  that  construction  will  be 
applied  which  upholds  the  act  if  it  can  be 
done  without  doing  violence  to  the  manifest 
legislative  purpose — Commonwealth  v.  Bar- 
ney. 24  Ky.  L.  R.  2352,  74  S.  W.  181;  Beasley 
V.  Ridout.  94  Md.  641.  Where  there  is  doubt 
as  to  whether  the  constitution  confers  power 
on  municipality  to  regulate  street  railway 
charges,  that  doubt  will  be  resolved  In  favor 
of  the  power — Chicago  Union  Traction  Co.  v. 
Chicago,   199   111.   484,   59   L.   R.   A.    631. 

87.  Bon  Homme  County  v.  Berndt,  15  S. 
D.   494;   State  v.  Sonier,  107  La.   794. 

88.  Rosenbloom  v.  State  (Neb.)  89  N.  W. 
1053,  57  L.  R.  A.  922;  People  v.  Warden  of 
Sing  Sing  Prison,  39  Misc.  (N.  Y.)  113; 
Grinage  v.  Times  Democrat  Pub.  Co.,  107  La. 
121. 

89.  Dobbins  v.  Los  Angeles  (Cal.)  72  Pac. 
970.  Whether  duress  and  coercion  caused 
the  adoption  of  a  congressional  law  by  In- 
dian tribes  will  not  be  considered — Ansley  v. 
Ainsworth    (Ind.   T.)    69   S.  W.   884. 


90.  State  V.  Lewis  (Utah)  72  Pac.  388; 
Point  Roberts  Fishing  Co.  v.  George  &  Bar- 
ker Co.,   28    Wash.    200,    68   Pac.    438. 

91.  Julien  v.  Model  Bldg.,  Loan  &  Inv. 
Co.  (Wis.)  92  N.  W.  561. 

93.  Northwestern  Mut.  Life  Ins.  Co.  v. 
Lewis  &  C.  County  (Mont.)  72  Pac.  982; 
White  v.  Gove  (Mass.)  67  N.  E.  359;  In  re 
Philadelphia,  M.  &  S.  St.  Ry.  Co.,  203  Pa. 
354;  Logan  County  v.  Carnahan  (Neb.)  95  N. 
W.  812.  If  the  valid  and  invalid  parts  of  a 
statute  are  severable  and  it  is  apparent 
that  the  latter  was  not  an  inducement  to  the 
adoption  of  the  former,  the  law  will  be 
enforced  to  the  extent  that  it  is  In  harmony 
with  the  constitution — Union  Pac.  R.  Co.  v. 
Sprague    (Neb.)    95    N.    W.    46. 

93.  State  v.   Froehlich.   115  Wis.    32. 

94.  Karem  v.  United  States  (C.  C.  A.)  121 
Fed.    250. 

93.  Dehon  v.  Lafourche  Basin  Levee 
Board   (La.)   34  So.  770. 

96.  6   Am.   &  Eng.   Enc.   Law,   1010. 

97.  There  is  a  legislative  encroachment 
on  the  executive  by  the  creation  of  a  bi- 
partisan board  of  election  commissioners  to 
be  chosen  from  persons  named  by  political 
committees.  The  power  of  the  legislature 
as  to  the  appointment  of  officers  "not  other- 
wise" provided  for  is  confined  to  the  "man- 
ner" of  making  such  appointments.  The 
fact  that  the  committees  "name"  and  the 
executive  "appoints"  is  unsubstantial  be- 
cause the  executive  has  no  choice — State  v. 
Washburn,  167  Mo.  680,  reviewing  many 
cases. 

98.  Appointment  of  jail  visitors  and  cus- 
todians— Beasley  v.  Ridout,  94  Md.  641. 


§  4 


LEGISLATIVE  FUNCTIONS. 


573 


department."*  The  courts  may  by  mandamus  compel  action,  but  cannot  direct  it/ 
and  may  hear  appeals  from  the  actions  of  official  boards.- 

The  pardoning  power  of  the  governor  is  not  invaded  by  a  provision  in  a  game 
law  giving  the  informer  one-half  the  fines  imposed,  as  this  power  does  not  extend 
to  the  remission  of  vested  interests  of  private  persons  in  fines  and  penalties,^  nor 
by  a  law  allowing  the  imposition  of  an  indeterminate  sentence  on  one  convicted  of 
a  crime  for  the  first  time,*  nor  by  an  act  allowing  the  resubmission  of  the  question 
of  the  sale  of  intoxicating  liquors,  as  the  second  submission,  though  in  favor  of  the 
sale,  will  not  absolve  from  offenses  previously  committed.^ 

Legislative  functions. — A  legislature  is  without  power  to  limit  the  powers  of 
a  subsequent  legislature  in  matters  strictly  governmental,®  and  cannot  give  a  munici- 
pality the  power  to  vacate,  suspend  or  repeal  a  general  law  of  the  state.''  A  legis- 
lature having  power  to  delegate  to  local  authorities  the  control  of  public  rights  in 
streets  may  at  any  time  resume  such  autliority.*  The  legislature  alone  has  power 
to  suspend  the  laws.® 

Legislative  power  is  delegated  by  an  act  giving  the  people  of  the  state  the  power 
to  declare  in  favor  of  a  salary  law,  and  making  the  same  void  if  rejected  by  the 
voters,^"  by  an  act  allowing  the  county  courts  of  certain  counties  to  appropriate 
such  amounts  as  they  shall  deem  just  and  equitable  within  a  certain  sum  as  judges' 
salaries,^^  and  by  an  act  requiring  a  license  from  steam  engineers  and  making  the 
examiner  the  sole  judge  of  the  competency  of  the  applicant. ^^ 

There  is  no  delegation  of  legislative  power  within  the  constitution  by  laws 
authorizing  the  subdivision  of  cities  and  townships  by  committees,^^  or  permitting 
appointments  without  concurrence  of  the  senate,^*  or  by  the  creation  of  a  park  board 
with  a  power  of  initiative  over  a  city  council,^^  or  by  the  creation  of  a  board  of 
fish  commissioners,  with  power  to  appoint  a  fish  warden,^'  or  by  acts  allowing  munici- 


99.  Ross  V.  Board  of  Chosen  Free  Holders 
(N.  J.  Law)  55  Atl.  310,  upholding-  act  giving- 
power  to  name  park  commissioners  and 
overruling  Schwarz  v.  Dover,  68  N.  J.  Law, 
576,  which  denied  validity  of  Laws  N.  J. 
1901,  c.  107,  p.  239  authorizing  the  court  to 
appoint  excise   officers. 

1.  State  V.  Savage  (Neb.)  90  N.  W.  898. 
Executive  discretion  in  acting  can  not  be 
so   controlled.      See   Mandamus. 

2.  Though  in  determining  the  illegality 
of  a  refusal  by  the  commissioners  of  the 
license  or  their  abuse  of  discretion,  the  court 
must  decide  question  of  suitability  and  in  a 
limited  sense  have  a  trial  de  novo,  yet  it  is 
not  required  to  decide  whether  it  would  have 
rejected  the  license  itself  and  in  that  sense 
exercise  administrative  powers — Appeal  of 
Moynihan,  75  Conn.  358. 

3.  Kurd's  Rev.  St.  1899,  p.  925 — Meul  v. 
People,    198    111.    258. 

4.  Penal  Code,  §  687A — People  v.  Warden 
of  Sing  Sing  Prison.  39  Misc.  (N.  Y.)  113. 
Indeterminate  sentence  law  is  valid  though 
clemency  is  in  a  sense  to  be  exercised  by 
the  court — Dreyer  v.  Illinois,  187  U.  S.  71. 

Reduction  of  sentence  at  a  subsequent 
term  of  court  infringes  on  the  pardoning 
power — State  v.  Dalton  (Tenn.)  72  S.  W. 
456. 

5.  Lloyd  v.  Dollisln,   23   Ohio  Circ.  R.  571. 

0.  Laws  N.  Y.  1897,  c.  378,  §§  351-357,  cre- 
ating a  police  pension  fund,  could  not  pre- 
vent a  subsequent  legislature  from  abolish- 
ing the  ofRce  of  one  about  to  become  a  pen- 
sioner— People  V.  Coler,   17S  N.  Y.  103. 


7.  Arroyo  v.  State  (Tex.  Cr.  App.)  69  S. 
W.    503. 

8.  New  England  Telephone  &  Telegraph 
Co.  v.  Boston  Terminal  Co.,   182  Mass.   397. 

9.  This  principle  is  not  violated  by  the 
act  allowing  resubmission  of  the  question 
of  local  option  in  cities  after  two  years 
from  the  former  determination — Lloyd  v. 
Dollisin,  23  Ohio  Circ.  R.  571.  An  act  al- 
lowing removal  of  a  county  seat  and  ap- 
pointing commissioners  therefor  with  pow- 
er to  solicit  subscriptions  and  ascertain  the 
amount  likely  to  be  realized  from  old  county 
buildings,  providing  the  act  should  not  take 
effect  until  such  commissioners  had  ascer- 
tained that  the  removal  -would  not  require 
increase  of  tax  rate,  does  not  violate  con- 
stitutional provision  limiting  power  of  sus- 
pending laws  to  the  general  assembly — Hand 
V.  Stapleton,  135  Ala.   156. 

10.  State  V.  Garver,  66  Ohio  St.  555. 

11.  The  judges  are  state,  not  county  of- 
ficers and  their  salaries  shall  be  "ascer- 
tained by  law" — Colbert  v.  Bond  (Tenn.)  75 
S.   W.    1061. 

13.  The  legislature  should  fix  a  standard 
of  proficiency — Harmon  v.  State,  66  Ohio  St. 
249. 

Kennedy   v.    Mayor   of   Pawtucket,    24 
461;   Allison   v.    Corker,    67   N.    J.    Law, 


13. 

R.  L 
596. 

14. 
Law)- 

15. 

16. 


Sess.   Laws   1899.    p.    345    (The  Medical 
-In  re  Inman   (Idaho)    69  Pac.   121. 
Kansas    City   v.   Mastin,    169    Mo.    80. 
Sess.  Laws  1901,  p.  328 — Reed  v.  Dun- 


bar,   41   Or.   509,    69   Pac.    451. 


574 


CONSTITUTIONAL  LAW. 


8   4 


pal  corporations  to  amend  their  cliarters/^  or  by  an  act  authorizing  voters  of  street 
ligliting  districts  to  appropriate  funds  raised  by  taxation  and  expended  within  the 
district  "  The  state  may  delegate  to  a  municipal  corporation  its  powers  to  regulate 
the  rates  of  local  common  carriers.^® 

There  is  not  an  unwarranted  delegation  of  legislative  power  by  laws  giving 
departmental  officers  the  power  to  make  rules  and  regulations.-"  But  the  violation 
of  such  rules  cannot  be  declared  a  crime/^  subject  to  the  proviso  that  a  subdivision 
of  government  or  a  branch  of  such  subdivision  may  be  authorized  to  legislate  upon 
matters  of  local  concern.^^ 

There  is  not  a  delegation  of  congressional  legislative  power  by  a  recognition  in 
the  banlvruptcy  act  of  local  laws  giving  exemptions,  dower,  etc.,^^  nor  by  an  act 
ratifying  an  agreement  with  an  Indian  tribe.^* 

There  is  not  an  invasion  of  legislative  power  by  a  court's  authorizing  a  statutory 
action  against  the  railroad  commission  to  determine  the  reasonableness  of  «ates  made 
by  the  commission,-'^  nor  by  an  act  authorizing  a  township  to  pass  an  ordinance 
directing  application  to  a  court  to  compel  railroad  companies  to  erect  gates  at  -s- 
ings.-*  Modes  of  procedure  are  for  legislative  regulation.-^  Courts  cannot  be 
given  the  initiative  in  the  acquisition  or  construction  of  permanent  accomii  ^da- 
tions  for  themselves.^^  It  is  proper  for  the  judiciary  to  be  authorized  to  call  a  c  Durt 
into  session  when  the  judge  who  shall  sit  is  otherwise  designated.^® 

Matters  within  the  legislative  discretion  are  not  the  subject  of  judicial  review, 
unless  there  has  been  an  abuse  of  power.^**  The  passage  and  approval  of  ordilianees 
may  not  be  controlled  by  injunction.^^ 

Judicial  functions. — The  protection  of  existing  tribunals  and  of  their  jurisdic- 
tions and  procedure  is  the  subject  of  later  portions  of  this  article.^^  Courts  are  given 
the  power  to  determine  all  judicial  questions  whenever  or  however  they  may  arise." 


17.  Yazoo  City  v.  Lightcap  (Miss.)  33  So. 
949. 

18.  Anison    V.   Corker,    67   N.   J.   Law,   596. 

19.  Chicago  Union  Traction  Co.  v.  Ciii- 
cago,  199  in.  484.  59  L.  R.  A.  631. 

20.  Act  of  Congress  approved,  June  4th, 
1897  (30  Stat.  35) — United  States  v.  Daster- 
vignes.  118  Fed.   199. 

21.  Federal  act  making  it  an  offense  to 
violate  rules  made  by  a  cabinet  officer  dele- 
gates legislative  powers  to  an  administra- 
tive officer — United  States  v.  Blasingame, 
116  Fed.  654;  Dastervignes  v.  United  States 
(C.  C.  A.)  122  Fed.  30;  Dent  v.  United  States 
(Ariz.)    71   Pac.   920. 

22.  Act  making  violation  of  rules  and 
regulations  of  a  board  of  park  commission- 
ers, breaches  of  the  peace,  does  not  amount 
to  a  delegation  of  legislative  power — Brod- 
bine  v.  inhabitants  of  Revere,  182  Mass.  598. 

23.  Hanover  Nat.  Bank  v.  Moyses,  186  U. 
S.   181,   46  U.   S.  Lawy.   Ed.   1113. 

24.  Ansley  v.  Ainsworth  (Ind.  T.)  69  S. 
W.    884. 

25.  Railroad  Commission  v.  Weld  &  Ne- 
ville (Tex.)   73  S.  W.  529. 

26.  Palmyra  Tp.  v.  Pennsylvania  R.  Co., 
63    N.    J.    Eq.    799. 

27.  In  re  Probate  Blanks.   71  N.  H.   621. 

28.  Moreau  v.  Board  of  Chosen  Freehold- 
ers.   68   N.   J.   Law,    480. 

29.  Commonwealth  Roofing  Co.  v.  Palmer 
Leather  Co.,   67  N.  J.  Law,   566. 

30.  May  not  review  the  discretion  of  the 
legislature  in  redistricting  a  state — People 
V.  Rose  (111.)  67  N.  E.  746;  People  v.  Carlock, 
198  111.   150.     Nor  whether  property   is  bene- 


fited by  the  construction  of  a  sewer — Prior 
V.  Buehler  &  C.  Const.  Co.,  170  Mo.  439.  Nor 
the  reasonableness  of  a  license  tax — Woodall 
V.  City  of  Lynchburg,  4  Va.  Sup.  Ct.  R.  166, 
40  S.  E.  915. 

31.  Wright  V.  People    (Colo.)    73   Pac.   869. 

32.  Establishment  and  abolition  of  con- 
stitutional courts  or  of  their  jurisdiction  Is 
subject  to  restriction  by  various  provisions 
not  dependent  on  the  distribution  of  powers. 
See  post,  §  22;  "Organization  and  Frame 
of  Government;  Officers."  See  also  sections 
treating   of   "Jury  Trials"  and   the  like. 

33.  State  v.  Savage  (Neb.)  90  N.  W.  898. 
The  question  whether  an  act  violates  a  con- 
stitutional provision  prohibiting  special 
legislation,  is  for  the  judiciary — State  v. 
Hammond  (S.  C.)  44  S.  E.  797;  Rambo  v. 
Larrabee   (Kan.)   73  Pac.  915. 

The  provision  against  the  passage  of  a 
special  act  where  a  general  law  can  be  made 
applicable.  Is  addressed  to  the  legislature 
alone;  it  Is  a  legislative  question  whether  a 
general  law  can  meet  the  occasion — Sanitary 
Dlst.   of  Chicago  v.  Ray,  199  111.   63. 

In  passing  on  the  constitutionality  of  a 
statute,  courts  must  bear  in  mind  that  ex- 
cept In  the  particular  wherein  It  Is  restrain- 
ed by  the  constitution  of  the  United  States, 
the  legislative  department  may  exercise  all 
legislative  power  which  Is  not  forbidden  ex- 
pressly or  by  implication  by  provision  of 
the  statute  of  the  state,  and  If  there  be 
doubt  as  to  the  validity  of  the  law.  It  is 
due  to  the  co-ordinate  branch  of  the  govern- 
ment  that   its   action    should   be    upheld    and 


§4 


JUDICIAL  FUNCTIONS. 


575 


The  legislature  cannot  declare  the  meaning  and  intent  of  the  pre-existing  law,'*  but 
in  legislating  may  define  its  own  meaning.^^ 

The  legislature  is  without  power  to  abridge  the  court 's  power  to  punisli  for  con- 
tempt.^® An  act  making  specifications  of  weights  in  bills  of  lading  conclusive  evi- 
dence of  the  fact  deprives  courts  of  the  power  to  determine  the  weight  and  sufficiency 
of  evidence.^''  An  attempt  by  the  legislature  to  exercise  control  over  court  records  and 
extend  the  time  for  filing  bills  of  exceptions  in  cases  pending  on  appeal  in  appellate 
courts  violates  the  rule  requiring  separation  of  the  three  departments  of  the  govern- 
ment.^* 

Judicial  functions  are  not  conferred  on  nonjudicial  officers  by  the  provision  of 
the  anti-trust  law,  imposing  a  penalty  on  a  corporation  for  failure  to  answer  under 
oath  inquiries  from  a  secretary  of  state  as  to  violation  of  provisions  of  the  act,^** 
nor  by  a  law  giving  a  state  board  of  irrigation  power  to  determine  the  priority  in 
amount  of  past  appropriations  and  allowing  further  appropriations,  when  there  is 
unappropriated  water  in  the  stream,*"  nor  by  an  act  allowing  the  board  of  manager,- 
o  "  reformatory  to  transfer  convicts  to  the  penitentiary,  where  the  convicts  are 
shown  to  be  more  than  twenty-one  years  of  age.*^  Congress  may  invest  officers  with 
pov  AT  to  determine  fact  of  citizenship  as  means  of  excluding  aliens,  such  being  an 
inc  liry  of  a  political  rather  than  a  judicial  fact.*^  There  is  an  invasion  of  judicial 
powerlDy  an  act  creating  a  board  of  auditors  with  the  power  to  determine  the  valid- 
ity of  laims  against  a  county  which  has  been  divided,  and  to  apportion  the  amount 
on  the  property  of  the  taxpayers  of  two  counties.*' 

Nonjudicial  functions  are  not  imposed  on  a  court  under  a  highway  law  allow- 
ing the  supreme  court,  on  the  presentation  of  a  petition,  to  determine  the  necessity 
and  line  of  construction  of  a  road  between  different  points  and  direct  a  notice  of 
a  hearing  before  commissioners,**  nor  by  an  act  making  it  the  duty  of  a  court  to 
count  names  on  a  petition  for  submission  of  the  question  of  sale  of  intoxicating 
liquors,  and  determining  whether  the  names  are  the  names  of  persons  voting  at  a 
preceding  election.*"^  An  act  giving  control  of  a  jail  to  a  board  of  visitors  appointed 
by  judges  of  the  circuit  court  confers  the  nonjudicial  power  of  appointment  on  the 
judges.*'  Local  legislative  bodies  and  not  the  judiciary  must  determine  the  neces- 
sity for,  and  initiate  the  action  of,  the  public,  in  providing  permanent  accommoda- 
tions for  the  courts,*^ 

Courts  are  without  power  to  regulate  the  procedure.**  For  a  court  to  request 
pursuant  to  statute  the  holding  of  a  constitutional  court  is  not  a  judicial  appoint- 
ment of  a  judge  of  that  court,  when  viewed  in  the  light  of  a  statute  which  desig- 
nates which  judge  shall  sit.*°     The  constitution  of  New  Jersey  does  not  prevent  legis- 


accepted  by  judicial  powers — Brown  v.  Gal- 
veston   (Tex.)    75   S.   W.    488. 

34.  Kern  v.  Supreme  Council,  A.  L.  of  H., 
167    Mo.    471. 

35.  The  provision  In  a  francliise  tax  act 
that  the  act  shall  not  be  considered  to  apply 
to  any  corporation  which  has  not  or  may 
not  exercise  a  municipal  franchise,  is  not  an 
invasion  of  judicial  functions  by  the  legis- 
lature, but  limits  the  scope  of  the  act  itself 
— State  Board  of  Assessors  v.  Plainfleld  Wa- 
ter Supply  Co.,  67  N.  J.  Law.  357. 

36.  State  V.  Shepherd   (Mo.)   76  S.  W.  79. 

37.  Missouri,  K.  &  T.  Ry.  Co.  v.  Simonson, 
64   Kan.   802,   68   Pac.   653,   57  L.   R.  A.   765. 

38.  Johnson    v.    Gebhauer,    159    Ind.    271. 

39.  Kurd's  Rev.  St.  1899,  pp.  616,  617 — 
People  V.  Butler  St.  Foundry  &  Iron  Co.,  201 
111.   236. 

40.  Laws  1895,  c.  69 — Crawford  Co.  v. 
Hathaway   (Neb.)    93  N.   W.    781. 


People   V.    Mallary,    195   111.    682. 
United   States   v.   Lee   Huen,   118   Fed. 


41. 
42. 

442. 

43.  Fitch  V.  Board  of  Auditors  of  Claims 
(Mich.)    94   N.   W.    952. 

44.  Laws  1892,  c.  493 — Citizens'  Sav.  Bank 
V.  Town  of  Greenburgh,  173  N.  Y.  215. 

45.  Board  of  Sup'rs  of  Election  v.  Todd 
(Md.)    54    Atl.    963. 

46.  Beasley  v.  Ridout,  94  Md.  641. 

47.  Moreau  v.  Board  of  Chosen  Freehold- 
ers, 68  N.  J.  Law,  480. 

48.  The  supreme  court  of  New  Hampshire 
is  without  power  to  approve  or  disapprove 
forms  and  rules  of  practice  and  procedure 
in  probate  courts  (Laws  1901,  c.  45) — In  re 
Probate  Blanks,    71   N.   H.    621. 

49.  New  Jersey  Act  1900  provides  that  a 
judge  of  the  Court  of  Common  Pleas  on  re- 
quest of  the  Justices  of  the  Supreme  Court 
shall  hold  the  Circuit  Court,  Act  of  1901  pro- 


576 


CONSTITUTIONAL  LAW. 


§5 


lation  afTccting  powers  lodged  in  several  justices  of  the  supreme  court,  as  distin- 
guished from  the  court  itself,  and  the  legislature  may  abolish  such  powers  without 
invading  jurisdiction  of  the  supreme  court.^° 

§  5.  Relative  powers  of  federal  and  state  or  other  subordinate  governments. 
— Under  the  provisions  conferring  exclusive  powers  over  certain  subjects,  the  ques- 
tions which  arise  are  such  as  require  a  construction  of  the  act  averred  to  be  ob- 
noxious. For  this  reason  titles  like  "Bankruptcy"  and  "Commerce"  should  be 
consulted.  The  state  may  not  invest  a  state  corporation  with  power  to  restrain 
interstate  commerce.'*^  In  a  preceding  article,  "Commerce,"  is  treated  the  ques- 
tion what  are  regulations  of  commerce  and  what  commerce  is  interstate  or  foreign 
as  distinguished  from  domestic.  The  federal  inhibition  against  the  passage  of 
laws  impairing  the  obligation  of  contracts  is  a  limitation  on  the  powers  of  states 
and  not  of  congress.^^  A  patent  is  the  property  right  granted  by  the  constitu- 
tion and  laws  of  the  United  States,  and  a  state  may  not  enact  laws  that  notes  in 
the  ordinary  form  shall  not  be  given  or  accepted  for  an  assignment  thereof,'*^ 
but  it  may  adopt  police  regulations  respecting  such  articles."*  A  state  is  with- 
out power  to  tax  the  compensation  allowed  federal  officers.^* 

Where  there  is  a  conflict  between  the  national  bankruptcy  and  the  state  in- 
solvency laws,  the  state  laws  must  yield.^®  A  federal  bankruptcy  act  excepting 
a  corporation  seeking  benefit  of  the  act  as  voluntary  bankrupt  does  not  suspend 
state  insolvency  laws  in  that  respect. ^^  The  constitutional  provision  giving  con- 
gress the  power  to  establish  uniform  bankruptcy  laws  does  not  affect  proceedings 
commenced  under  state  insolvency  laws  enacted  before  the  passage  of  the  national 
act.**     Tribal  constitutions  of  Indian  nations  yield  to  acts  of  congress."^ 

§  6.  Police  power  in  general. — This  section  is  designed  to  treat  of  the  gen- 
eral doctrine  of  police  power.  Police  regulations  considered  as  offending  some  one 
or  more  of  the  constitutional  guaranties  will  be  considered  in  succeeding  sections. 

The  legislature  may  not,  under  its  police  powers,  arbitrarily  invade  private 
property  or  personal  rights.**"  The  power  may  be  delegated  to  municipalities,^* 
There  can  be  no  estoppel  of  the  public  from  making  and  enforcing  proper  police 
regulations.®^  The  fact  that  an  article  is  protected  by  the  federal  patent  laws 
does  not  prevent  its  coming  within  the  operation  of  the  police  powers  of  the  state.*' 
The  state  may  not,  within  its  police  power,  confine  the  use  of  artesian  wells  by 
its  owner  to  the  amount  reasonably  necessary  for  his  own  use,®*  nor  prevent  a 
riparian  owner  from  bathing  in  the  waters  of  a  lake  because  a  city  draws  its 


vldlng  that  the  law  Judge  of  the  court  of 
Common  Pleas  should  ipso  facto  be  appoint- 
ed to  hold  the  Circuit  Court.  Hehl,  that  the 
judge  of  the  court  of  common  pleas  derives 
his  authority  to  hold  the  Circuit  Court,  from 
his  appointment  as  judge  of  the  Court  of 
Common  Pleas,  and  not  from  request  of  the 
Justices  of  the  Supreme  Court — Common- 
wealth Roofing  Co.  V.  Palmer  Leather  Co.. 
67    N.    J.    Law.    566. 

50.  State   V.    Taylor,    68   N.    J.    Law.    276. 

51.  United    States    v.    Northern    Securities 
Co..  120  Fed.  721. 

53,     Ansley  v.  Ainsworth  (Ind.  T.)  69  S.  W. 
884. 

53,  Pegram    v.    American    Alkali    Co.,    122 
Fed.  1000. 

54,  Arbuckle  v.   Blackburn    (C.   C.  A.)    113 
Fed.  616. 

55,  Purnell  v.  Page   (N.  C.)    45  S.  E.  534. 
.%«.     Rosenfeld    v.    Siegfried,    91    Mo.    App. 

169. 


57,  Keystone  Driller  Co.  v.  San  Francisco 
Superior  Ct..  138  Cal.  738,  72  Pac.   398. 

5S.  Old  Town  Bank  v.  McCormick,  96  Md. 
341;  Hood  v.  Blair  State  Bank  (Neb.)  91  N. 
W.  701,  706;  Osborn  v.  Fender  (Minn.)  92 
N.  W.  1114. 

59.  Ansley  v.  Ainsworth  (Ind.  T.)  69  S.  W. 
884. 

60.  Her  V.  Ross  (Neb.)  90  N.  W.  869,  57 
L.  R.  A.  895. 

61.  City  of  Danville  v.  Hatcher  (Va.)  44 
S.  E.  723;  Ward  v.  County  Ct.,  51  W.  Va.  102. 

63.  Dobbins  v.  Los  Angeles  (Cal.)  72  Pac. 
970. 

63.  Arbuckle  v.  Blackburn  (C.  C.  A.)  113 
Fed.   616. 

C4.  Laws  1901,  p.  502,  c.  354,  provides  that 
where  there  are  two  or  more  artesian  wells 
in  a  neighborhood,  one  or  more  of  which  are 
operated,  the  owner  of  such  well  shall  use 
due  care  to  prevent  waste,  and  see  that  the 
well  discharges  no  more  than  is  reasonably 
necessary  for  his  own  use — Huber  v.  Merkel 
("Wis.)    94   N.  W.   354. 


§7 


LIBERTY  OF  CONTRACT. 


577 


water  supply  from  a  lower  point  on  the  lake,®''  nor  compel  free  transportation  of 
policemen  on  street  cars/^  nor  limit  the  hours  of  labor  on  public  works  unless 
against  the  public  welfare  or  public  policy.'^  The  state  may,  within  its  police 
powers,  allow  the  erection  of  a  fence  by  a  landowner  along  a  railroad,  where  the 
company  refuses  to  build  the  fence,  and  authorize  the  recovery  of  an  attorney's 
fees  in  an  action  for  reimbursement.®*  Other  instances  of  valid  exercise  of  police 
powers  are  grouped  in  the  notes.®' 

§  7.  Liberty  of  contract  and  right  of  propertTj. — Legislation  is  not  invalid 
because  it  may  result  in  deprivation  of  property,  or  liberty  of  contract  if  pub- 
lic welfare  is  sought.^*  Liberty  of  contract  is  also  a  property  right,^^  which  is  not 
offended  by  laws  against  dealing  in  options  and  futures.'^^  Laws  against  combina- 
tion to  raise  the  price  of  articles  of  commerce  and  fix  prices  are  valid,''*  but  it  is 
unreasonable  to  require  persons  contracting  for  erection  of  buildings  to  secure  their 
contracts  by  bonds,  which  shall  inure  to  the  benefit  of  persons  furnishing  ma- 
terials.''* 

Laws  limiting  the  hours  of  employment  have  been  sustained,^''  though  the 
Ohio  courts  decide  that  such  are  invalid  as  applied  to  public  works,  unless  it 
appears  that  longer  hours  are  unlawful  or  impolitic.'"  A  law  compelling  weekly 
payments  of  wages  by  corporations  violates  the  right  of  private  contract,''^  but 
agreements  relieving  employer  from  the  payment  of  wages  each  week  may  be  for- 
bidden, as  well  as  assignments  of  wages^*  or  payment  of  seamen  in  advance,'''     The 


65.  People  V.  Hulburt  (Mich.)  91  N.  W. 
211. 

66.  Laws  1895,  c.  417 — "Wilson  v.  United 
Traction  Co.,  72  App.  Dlv.  (N.  Y.)   233. 

67.  Cleveland  v.  Clements  Bros.  Const. 
Co.,  67  Ohio  St.  197,  59  L.  R.  A.  775. 

68.  Terre  Haute  &  L.  Ry.  Co.  v.  Salmon 
and.)    67  N.  E.  918. 

69.  Hours  of  employment  of  females  (Act 
March  31,  1899)— Wenham  v.  State  (Neb.)  91 
N.  W.  421.  Sunday  laws — State  v.  Nichols, 
28  Wash.  628,  69  Pac.  372.  Forbidding  sale 
of  oleomargarine  and  imitation  butter — Peo- 
ple V.  Rotter  (Mich.)  91  N.  W.  167.  License 
acts  for  physicians  excepting  nonresidents, 
opticians — Parks  v.  State,  159  Ind.  211. 
Licensing  of  barbers  (Laws  1901,  p.  349.  c. 
172)— State  v.  Sharpless  (Wash.)  71  Pac.  737. 
Police  powers  of  cities,  see  Municipal  Cor- 
porations. Compulsory  vaccination  (Rev. 
Laws,  c.  75,  §  137) — Commonwealth  v.  Pear 
(Mass.)  66  N.  E.  719.  License  of  dentists — 
State  V.  Chapman  (N.  J.  Law)  55  Atl.  94. 
Law  making  specification  of  weights  in  bills 
of  lading  conclusive  on  railroad  companies 
I  Kan.  Laws  1893,  c.  100) — Missouri.  K.  &  T. 
Ry.  Co.  V.  Simonson,  64  Kan.  802,  68  Pac.  653, 
57  L.  R.  A.  765.  It  is  proper  to  compel  abut- 
ters to  make  sewer  connections  when  a  sew- 
er is  laid — Van  Wagoner  v.  City  of  Paterson, 
67  N.  J.  Law,  455. 

70.  A  law  is  reasonable  which  requires 
gas  flow  from  a  well  to  be  controlled  with- 
in two  days — Given  v.  State  (Ind.)  66  N.  E. 
750.  Restrictions  on  the  hours  of  stated 
kinds  of  labor  if  for  the  public  good  do  not 
invade  liberty  of  occupation — People  v.  Loch- 
ner,  73  App.  Dlv.  (N.  Y.)  120;  State  v.  Bu- 
chanan, 29  Wash.  602.  70  Pac.  52.  59  L.  R.  A. 
342.  Laws  against  the  use  of  trading  stamps 
are  not  reasonable — People  v.  Dycker,  72 
.A.PP.  Div.  (N.  Y.)  308. 

The  subjects  of  this  section  are  also  pro- 
tected against  deprivation  without  due  pro- 
cess of  law,  which  see,  post. 

Cur.   Law — 37. 


Propertyi  Alimony  decree — Gundry  v. 
Gundry,  11  Okl.  423,  68  Pac.  509;  Livingston 
V.  Livingston,  173  N.  Y.  377.  Liquor  license 
—In  re  Cullinan,  115  N.  Y.  St.  Rep.  567. 

Not  property:  Labor — Mathews  v.  People, 
202  111.  389;  Street  v.  Varney  Elect.  Co.  (Ind.) 
66  N.  E.  895.  Existing  proportion  between 
classes  of  stock  issues  and  bond  issues  may 
be  changed  by  majority  under  enabling  acts 
of  incorporation — Dickinson  v.  Consolidated 
Traction  Co.,  114  Fed.  232;  Venner  Co.  v. 
United  States  Steel  Corp.,  116  Fed.  1012.  Ex- 
pectancy of  a  pension — People  v.  Coler,  71 
App.  Div.  (N.  Y.)  584.  Levy  which  attached 
no  lien — McFaddin  v.  Evans-Snyder-Buel 
Co.,  185  U.  S.  505,  46  Law.  Ed.  1012.  Objec- 
tions to  land  entry — Emblen  v.  I^incoln  Land 
Co.,  184  U.  S.  660,  46  Law.  Ed.  736.  Imma- 
ture franchise — Underground  R.  of  N.  Y.  v. 
City  of  New  York,  116  Fed.  952.  Gambling 
devices — Garland  Novelty  Co.  v.  State  (Ark.) 
71   S.  W.  257. 

71.  Mathews   v.   People,   202   111.   389. 

72.  Booth  V.  Illinois,  184  U.  S.  425,  46  U. 
S.  Lawy.  Ed.  623.  Though  legitimate  con- 
tracts may  be  affected — Otis  v.  Parker,  187 
U.  S.  606. 

73.  State  v.  Smiley,  65  Kan.  240,  69  Pac. 
199. 

74.  San  Francisco  Lumber  Co.  v.  Bibb 
(Cal.)  72  Pac.  964.  Cal.  Code  Civ.  Proc.  } 
1203— Shaughnessy  v.  American  Surety  Co., 
138  Cal.  543,  69  Pac.  250,  71  Pac.  701. 

75.  In  re  Ten  Hour  Law  for  St.  Ry.  Corp. 
(R.  I.)  54  Atl.  602.  Pen.  Code,  §  384h — People 
V.  Orange  County  Road  Const.  Co.,  73  App. 
Div.   (N.  Y.)  580. 

76.  Act  April  16,  1900 — Cleveland  v.  Clem- 
ents Bros.  Const.  Co.,  67  Ohio  St.  197,  59  L. 
R,  A.  775. 

77.  Ind.  Laws  1899,  p.  193,  c.  124 — Repub- 
lic Iron  &  Steel  Co.  v.  State  (Ind.)  66  N.  B. 
1005. 

78.  Acts    1899,    p.    193,    §    4 — International 


578 


CONSTITUTIONAL  LAW. 


§  8 


right  to  discharge  an  employe  for  membership  in  a  labor  union**  and  to  employ 
laborers  to  take  the  place  of  strikers  is  protected.*^ 

The  liberty  of  contract  is  limited  by  the  commerce  clause  in  the  federal  con- 
stitution, and  congress  may  prohibit  private  contracts  in  restraint  of  interstate 
commerce.*'' 

Right  of  property  is  not  infringed  by  a  requirement  that  persons  offering  real 
property  for  sale  shall  have  written  authority,^*  nor  by  laws  allowing  the  prose- 
cution of  one  in  possession  of  premises  on  which  liquor  is  sold  in  violation  of  the 
law,  though  it  allows  such  person  to  be  punished  each  time  liquor  is  sold,  with- 
out regard  to  whether  he  makes  the  sale,**  nor  by  laws  making  it  an  offense  to 
buy  or  sell  certain  species  of  game,*'  nor  by  laws  making  spite  fences  a  nuisance,*" 
nor  by  laws  allowing  the  public  destruction  of  liquors  illegally  offered  for  sale.*^ 

Private  property  may  not  be  taken  for  private  purposes.** 

§  8,  Freedom  of  speech  and  the  press. — Speeches  and  writings  in  aid  of  a 
boycott  of  a  business  may  not  be  enjoined,*®  nor  may  a  judge  in  a  murder  trial 
prohibit  the  publication  of  the  evidence,  where  there  is  no  question  of  obscenity 
in  testimony,®"  but  publications  of  articles  scandalizing  courts  have  no  protection," 
nor  articles  inciting  to  revolution  and  murder  and  suggesting  the  murder  of  cer- 
tain persons."^ 

§  9.  Personal  and  religious  liberty. — Public  school  pupils  cannot  be  required 
to  attend  religious  services  or  join  in  them,®^  but  may  be  compelled  to  attend 
school.®*     Applications  of  the  guaranty  of  personal  liberty  are  shown  below.®' 

'^Imprisonment  for  debt"  does  not  include  imprisonment  to  enforce  payment 
of  a  license  tax,  or  a  fine,®®  or  alimony,  as  a  money  decree  for  alimony,  is  not  a 
debt;®^  nor  is  it  such  imprisonment  when  made  in  punishment  of  the  offense  of 
selling  property  on  which  a  lien  exists  without  consent  of  lienee.®* 


Weissinger   (Ind.)    65  N.  E. 


S. 


Text-Book  Co. 
521. 

79.     Patterson    v.    Bark    Eudora,    190    U. 
169. 

80. 

81. 

82. 


State  V.  Kreutzberg.  114  Wis.  530. 
Mathews  v.  People,  202  111.  389. 
United    States    v.    Northern    Securities 
Co..  120  Fed.  721. 

83.  In  certain  cities  only — ^Whlteley  v. 
Terry.  83  App.  Div.   (N.  Y.)  197. 

84.  City  of  Campbellsville  v.  Odewalt,  24 
Ky.  L.  R.  1717,  72  S.  W.  314. 

85.  Pen.  Code.  §  626k — Ex  parte  Kenneke, 
136  Cal.  527,  69  Pac.  261. 

86.  Horan  v.  Byrnes  (N.  H.)  54  Atl.  945. 

87.  Gen.  St.  Kan.  1901,  §  2493 — State  v. 
McManus.  65  Kan.  720,  70  Pac.  700. 

88.  An  act  requiring  the  railroad  com- 
pany to  keep  Its  right  of  way  clear  of  in- 
flammable material  and  Imposing  a  penalty 
for  violation  of  the  act,  does  not  amount  to 
a  taking  of  private  property  for  private  use 
— McFarland  v.  Mississippi  River  &  B.  T. 
Ry.  Co.  (Mo.)  75  S.  W.  152.  An  act  author- 
izing the  condemnation  of  land  for  "so- 
called"  private  roads,  does  not  authorize  the 
taking  of  private  property  for  private  use, 
as  a  private  road  Is  open  to  the  public — Ma- 
dera County  v.  Raymond  Granite  Co.  (Cal.) 
72  Pac.  915.  An  act  for  the  establishment  of 
drainage  districts  and  the  election  by  the 
residents  of  the  districts  of  a  board  to  man- 
age the  business,  does  not  create  a  private 
corporation  for  the  improvement  of  private 
property  and  force  Individuals  to  become 
members  of  the  corporation  against  their 
will  against  the  constitutional  inhibition 
(Rev.   St.   1899,  S   8251) — Mound  City  Land  & 


Stock  Co.  V.  Miller,   170  Mo.   240.   60  I>.   R.  A. 
190. 

89.  Marx  &  H.  Jeans  Clothing  Co.  v.  Wat- 
son,  168  Mo.   133,    56  L.   R.  A.   951. 

90.  Ex  parte  Foster  (Tex.  Cr.  App.)  71  S. 
W.   593. 

91.  State  V.  Shepherd  (Mo.)  76  S.  W.  79. 

92.  People  V.  Most,  171  N.  Y.  423. 

93.  The  point  where  courts  may  interfere 
with  the  use  of  the  bible  in  public  schools, 
is  where  the  use  amounts  to  an  abuse  and 
the  teacher  employed  to  give  secular  in- 
struction Inculcates  sectarian  views — State 
v.  Scheve  (Neb.)  93  N.  W.  169,  59  L.  R.  A. 
927. 

94.  Laws  requiring  compulsory  attend- 
ance of  children  at  school  are  not  unconsti- 
tutional as  authorizing  an  interference  with 
parental  dominion  or  personal  liberty — State 
V.  Jackson,   71  N.  H.  552. 

95.  Law  against  loitering  in  bar  rooms 
is  valid — In  re  Stegenga  (Mich.)  94  N.  W^. 
385.  To  require  license  from  transcient 
merchants  is  valid — Levy  v.  State  (Ind.)  68 
N.  E.  172. 

Missouri  bill  of  rights  does  not  allow  an 
injunction  to  restrain  boycotting  unless  the 
privilege  is  abused,  as  this  would  amount 
to  a  deprivation  of  personal  liberty — Marx 
&  H.  J.  Clothing  Co.  v.  Watson.  168  Mo.  133, 
56  L.  R.  A.   951. 

96.  Rosenbloom  v.  State  (Neb.)  89  N.  W. 
1053,  57  L.  R.  A.  922;  Sothman  v.  State 
(Neb.)   92  N.  W.  303. 

97.  State  V.  Cook.  66  Ohio  St.  666. 

98.  Cr.  Code.  §  277 — State  v.  Bardeii,  64  S. 
C.   206. 


§  10 


EQUAL  PROTECTION. 


579 


Right  to  choose  employment. — Laws  requiring  registration  and  examination 
as  a  condition  to  following  a  profession  are  not  unconstitutional,  as  operating  to 
prevent  persons  from  following  these  occupations.'*  An  ordinance  requiring  pub- 
lic printing  to  bear  a  union  label  deprives  those  not  using  the  label  of  the  right 
to  pursue  their  vocations  as  far  as  public  printing  is  concerned.^  There  is  not 
an  unconstitutional  restraint  to  personal  liberty  in  an  act  prohibiting  the  opera- 
tion of  a  barber  shop  on  Sunday.'^  An  act  making  it  unlawful  to  exhibit  games  of 
chance  in  rooms  made  difficult  of  access  to  the  police  is  not  invalid  as  unreason- 
able or  oppressive  interference  with  ordinary  personal  rights.^  Business  of  operat- 
ing street  railways  is  not  an  ordinary  avocation,  within  the  constitutional  provi- 
gion  securing  individuals  the  right  to  choose  their  occupation  and  to  pursue  any 
ordinary  calling  or  trade  so  as  to  prevent  legislative  regulation.* 

§  10.  Equal  protection  of  laws. — The  discrimination  contemplated  by  the 
clause  guaranteeing  equal  protection  of  the  law  is  a  discrimination  between  persons 
coming  within  the  same  class,^  and  must  be  in  some  measure  unjust  and  oppressive.* 
An  act  allowing  the  city  to  contract  for  the  construction  of  an  underground  street 
railroad  does  not  deprive  companies  desiring  to  construct  a  road  on  the  same  line 
of  the  equal  protection  of  the  laws.' 

Discrimination  against  races  is  not  wrought  by  separating  them  in  schools.' 
A  negro  on  trial  for  crime  is  denied  equal  protection  if  his  own  race  is  excluded 
from  the  jury  because  of  race." 

There  is  not  a  violation  of  the  clause  guaranteeing  equal  protection  of  the 
laws  by  an  act  exempting  a  portion  of  a  county  from  the  operation  of  the  general 
stock  law,^"  nor  by  a  law  requiring  the  licensing  and  regulation  of  barbers,  and 
exempting  from  its  provisions  barbers  in  cities  of  a  specified  class,  as  the  barbers 
in  the  different  towns  and  cities  are  treated  alike.^^  The  proclamation  of  the  gov- 
ernor of  a  state  against  the  importation  of  cattle  for  dairy  and  breeding  purposes 
from  a  certain  district,  but  allowing  the  importation  of  cattle  for  slaughter  from 
the  same  district  creates  an  illegal  discrimination  within  the  constitutional  provi- 
sion.^* An  act  giving  commissioners  under  the  general  stock  law  the  power  to 
exclude  all  undesirable  persons  from  the  exempt  territory  gives  such  commission- 
ers arbitrary  powers  and  is  unconstitutional.^' 


i 


99.  State  V.  Wilcox.  64  Kan.  789,  68  Pac. 
634. 

1.  Marshall  &  Bruce  Co.  v.  Nashville 
(Tenn.)    71  S.  W.   815. 

2.  State  V.  Sopher.  25  Utah.  31 S.  71  Pac. 
482,  60  L.  R.  A.  468. 

3.  In  re  Ah  Cheung,  136  Cal.  678,  69  Pac. 
492. 

4.  Goddard  v.  Chicago  &  N.  W.  Ry.  Co., 
202  111.  362. 

5.  City  of  Carthage  v.  Carlton,  99  111.  App. 
338.  Violated  by  laws  treating  some  per- 
sons within  the  state  differently  from  oth- 
ers in  respect  to  the  enjoyment  of  public 
waters — Rossmiller  v.  State,  114  "Wis.  169. 

6.  Does  not  apply  to  requirement  that 
one  consumer  pay  for  his  gas  by  meter  rate 
while  others  pay  by  the  flat  rate — Indiana 
Natural  &  Illuminating  Gas  Co.  v.  State,  158 
Ind.  516.  57  L.  R.  A.  761.  The  allowance  of 
exemptions  according  to  state  laws,  in  force 
at  the  time  of  filing  of  petition  in  bank- 
ruptcy, does  not  render  the   national  bank- 

uptcy  act   open  to  the  objection   that   it  is 
ithout  uniform  application  throughout  the 


United  States — Hanover  Nat.  Bank  v.  Moyses, 
186  U.  S.  181,  46  U.  S.  Lawy.  Ed.  1113. 

7.  Underground  R.  of  New  York  v.  New 
York,  116  Fed.  952. 

8.  Reynolds  v.  Board  of  Education  (Kan.) 
72  Pac.  274.  Mongolians  (Pol.  Code,  Cal. 
§  1662) — "Wong  Him  v.  Callahan,  119  Fed. 
381.  Apportionment  of  school  funds — Hook- 
er v.  Town  of  Greenville,  130  N.  C.  472. 

9.  There  is  not  sufliclent  evidence  to  show 
a  discrimination  against  the  colored  race  in 
formation  of  a  jury  for  the  trial  of  a  mem- 
ber of  the  race,  where  It  is  shown  that  only 
a  small  percentage  of  the  negroes  in  the 
county  could  read  or  write,  and  there  were 
but  few  negroes  in  the  county  and  the  jury 
commissioners  stated  that  they  were  In- 
structed not  to  discriminate,  and  that  they 
did  not  in  fact  discriminate  against  the  race 
—Hubbard  v.  State  (Tex.  Cr.  App.)  67  S.  W. 
413. 

Goodale  v.  Sowell,  62  S.  C.  516. 

State    V.    Sharpless    ("Wash.)    71    Pac. 


10. 
11. 

737. 
12. 


Pierce  v.  Dillingham,   203  111.   148. 


13.     Goodale  v.  Sowell,  62  S.  C.  516. 


580 


CONSTITUTIONAL  LAW. 


§    10 


Laws  prohibiting  the  sale  of  liquors  are  not  open  to  the  objection  that  they 
violate  the  constitutional  guaranty  of  equal  protection  of  the  laws."  A  local  op- 
tion law  allowing  the  use  of  liquors  on  prescription,  and  limiting  the  right  to 
write  prescriptions  only  to  physicians  who  follow  the  profession  of  medicine  as 
their  principal  and  usual  calling,  denies  the  equal  protection  of  the  laws  to  a  physi- 
cian engaged  in  the  practice  but  whose  principal  business  is  that  of  a  postmaster.^^ 
A  charter  provision  against  saloons  keeping  wine-rooms  into  which  women  are 
permitted  to  enter  and  be  supplied  with  liquor  is  not  a  discrimination  against 
women  on  account  of  sex.^" 

Inspection  fees  and  licenses. — An  act  exacting  an  inspection  fee  from  manu- 
facturers of  beer  for  sale  in  the  state,  which  brewers  for  export  need  not  pay,  de- 
nies a  brewer  for  domestic  use  the  equal  protection  of  the  laws.^^ 

Laws  requiring  a  license  as  a  condition  to  the  transaction  of  business  are  not 
generally  objectionable  as  denying  equal  protection,^*  unless  they  discriminate,  as 
where  a  law  requiring  peddler's  licenses  exempts  business  men  of  the  town,^^  and  hon- 
orably discharged  soldiers  of  the  civil  war,-"  or  deny  right  thereto  to  nonresidents.-' 
An  act  exempting  from  examination  steam  engineers  who  have  operated  engines 
for  three  years  or  held  a  license  under  a  city  ordinance  violates  the  equality  clause, 
in  that  it  confers  a  license  on  engineers  without  reference  to  their  competency.-" 

Taxation. — The  constitutional  guaranty  of  equal  protection  of  the  laws  does 
not  require  the  levy  of  taxes  by  a  uniform  method  upon  every  class  of  property, 
but  leaves  to  the  legislative  discretion  the  manner  with  respect  to  each  class.^^ 
The  clause  is  not  violated  by  the  inheritance  tax  laws  of  New  York  and  Illinois.-^ 
There  is  a  denial  by  the  Wisconsin  inheritance  tax  law,  exempting  inheritances 
of  less  than  $10,000  in  value,  and  taxing  those  exceeding  that  amount  without 
regard  to  the  size  of  the  bequests.^^  ^  There  is  not  a  denial  of  the  equal  protec- 
tion of  the  laws  by  an  act  taxing  railroad  stock  and  exempting  the  stock  in  domes- 
tic railroads  and  others  that  list  substantially  all  their  property  for  taxation,'^*' 


14.  An  act  allowing-  an  election  on  the 
auestion  of  prohibition  in  a  lesser  area  in 
the  county,  after  a  defeat  of  the  proposi- 
tion by  the  county  as  a  whole  and  prohibit- 
ing an  election  in  such  lesser  area,  where 
prohibition  has  been  carried  by  the  county 
as  a  whole  previous  to  a  defeat  of  the  ques- 
tion by  the  extire  county — Rippy  v.  State 
(Tex.  Cr.  App.)  68  S.  W.  687.  Sales  to  stu- 
dents— Peacock  v.  Limburger  (Tex.  Civ. 
.\pp.)  67  S.  W.  518.  Laws  forbidding  sales 
within  a  certain  distance  of  an  institution 
of  learning-  and  excepting  from  its  operation 
manufacturers  selling  wholesale  packages 
or  quantities — Webster  v.  State  (Tenn.)  75 
S.   W.   1020. 

15.  Busch  V.  Webb,  122  Fed.  655.  A  leg- 
islature is  not  given  power  to  prohibit  the 
giving  of  prescription  for  intoxicants  in 
local  option  territory  by  a  constitutional 
provision  requiring  the  legislature  to  enact 
local  option  laws — Stephens  v.  State  (Tex. 
Cr.   App.)    73   S.  W.    1056. 

16.  Denver  City  Charter.  §  20,  subd.  12 — 
Adams  V.  Cronin.  29  Colo.  488,  69  Pac.  590. 

17.  Rev.  St.  1899,  c.  117,  art.  4,  §§  7691, 
7696 — State  v.  Eby,  170  Mo.  497. 

18.  Transient  merchants — Levy  v.  State 
(Ind.)  68  N.  E.  172.  Dairy  permits — St. 
Louis  V.  Fischer,  167  Mo.  654.  Evidence  held 
sufficient  to  show  discrimination  against 
colored  race  in  formation  of  jury  for  trial 
of  defendant — Smith  v.  State  (Tex.  Cr.  App.) 


69  S.  W.  151.  Agents  of  banking  houses  do- 
ing business  -within  the  state — Stewart  v. 
Kehrer.  115  Ga.  184.  Stage  drivers — Borough 
of  Belmar  v.  Barkalow.  67  N.  J.  Law,  504. 
Merchants  according  to  a  division  into  class- 
es on  the  basis  of  sales  made  by  such  mer- 
chants— Clark  V.  Titusville,  184  U.  S.  329, 
46  U.  S.  Lawy.  Ed.  569.  Foreign  corpora- 
tions— State  V.  Hammond  Packing  Co.  (La.) 
34  So.  368.  Acts  of  Ark.  1901,  p.  113 — Ft. 
Smith  V.  Scruggs,  70  Ark.  549.  Physicians 
(Burns'  Rev.  St.  1901.  §§  7318-7323[a])— 
Parks  V.  State.  159  Ind.  211.  There  is  not 
an  arbitrary  and  unjust  discrimination  in 
an  act  exempting  from  the  physician's  regis- 
tration act  a  physician  called  from  another 
state  to  treat  a  particular  case  (Act  1895,  c. 
170) — State  v.    Bohemier,   96  Me.   257. 

19.  Pub.  L:iws  1901,  c.  277 — State  v.  Mit- 
chell,  97  Me.   66. 

20.  State  v.    Shedroi    (Vt.)    54   Atl.    1081. 

21.  Michigan  barber  law — Templar  v. 
Michigan  State  Board  of  Examiners  (Mich.) 
90  N.   W.   1058. 

22.  Harmon  v.  State,  66  Ohio  St.  249. 

23.  Peacock  v.  Pratt  (C.  C.  A.)  121  Fed. 
772. 

24.  Blackstone  v.  Miller,  188  U.  S.  189; 
Billings  v.  Illinois.  188  U.  S.  97. 

25.  Laws  1899,  c.  355^Black  v.  State,  113 
Wis.   205. 

2C.     Kldd  V.  Alabama,  188  U.  S.  730. 


§  10 


EQUAL  PROTECTION. 


581 


nor  by  provisions  assessing  the  stock  of  nonresident  stockholclers  in  a  domestic 
corporation  at  its  market  value,  without  deduction  of  amount  of  realty  held  by 
the  corporation,  though  such  deduction  is  allowed  to  resident  stockholders.^'^  Sav- 
ings banks  are  not  charitable  corporations  within  a  tax  exemption,  so  as  to  be 
subjected  to  an  inequality  by  reason  of  being  subjected  to  a  franchise  tax.^*  There 
is  a  denial  of  equal  protection  of  laws  to  the  citizens  of  the  United  States  and  of 
the  particular  states,  by  a  law  imposing  taxes  on  articles  manufactured  for  sale 
within  the  state,  but  exempting  therefrom  taxes  on  articles  manufactured  for 
export.^" 

Local  improvements. — Equal  protection  is  not  denied  by  an  act  making  the 
abutting  property,  in  proportion  to  its  frontage,  pay  three-fourths  of  the  cost  of 
paving  a  street,^"  nor  by  a  water  district  allowing  condemnation  of  the  property 
of  a  water  company  by  commissioners,  though  the  value  of  other  property  is  de- 
termined by  a  jury.'^ 

Regulation  of  business  trades  and  professions. — There  is  not  a  denial  of  equal 
protection  by  a  provision  avoiding  margin  contracts  because  it  strikes  at  some  and 
not  all  objects  of  possible  speculation.^^  Laws  requiring  affidavits  as  to  the  ingre- 
dients used  by  a  foreign  brewer  do  not  discriminate  against  the  foreign  brewer, 
though  exempting  the  local  brewer,  as  the  state  cannot  inspect  manufactories  with- 
out the  state.^^  There  is  no  denial  of  the  equal  protection  of  laws  by  an  act  mak- 
ing the  directors  of  a  corporation  liable  for  the  misappropriation  of  funds,^*  nor 
by  an  act  allowing  building  and  loan  associations  to  exact  a  rate  of  interest  in 
excess  of  that  allowed  to  be  demanded  by  other  persons,^'*  nor  is  the  clause  infringed 
by  laws  requiring  foreign  corporations  to  file  certificates  as  a  condition  to  doing 
business  in  the  state  and  using  the  state  courts.^^  An  act  relating  to  foreign  in- 
surance companies  and  defining  the  term  agent  to  include  acknowledged  agents, 
brokers  or  persons  aiding  in  a  transaction  of  the  business  of  the  company,  does 
not  deny  the  insurance  companies  the  equal  protection  of  the  laws.^^  Acts  re- 
quiring the  Sunday  closing  of  stores  and  excepting  therefrom  drug  stores,  livery 
stables  and  hotels,  except  as  to  sale  of  liquor,^*  prohibiting  wine-rooms  in  connec- 
tion with  saloons,^^  and  forbidding  the  manufacture  and  sale  of  imitation  butter 
and  oleomargarine,  do  not  violate  the  guaranty.*"  The  equality  clause  is  violated 
by  provisions  in  anti-trust  acts  exempting  agricultural  products  or  live  stock  In 
the  possession  of  the  producer  or  raiser,*^  and  combinations  for  tiie  purpose  •f 
raising  or  maintaining  wages  formed  by  those  doing  business  in  the  production 
of  articles,  the  cost  of  which  is  mainly  made  up  of  wages. ''^  It  is  not  violated  by 
a  provision  in  an  anti-trust  act  requiring  a  corporation  to  answer  under  oath  in- 
quiries from  secretary  of  state,  as  to  violation  of  the  act,  as  corporations  do  busi- 
ness by  virtue  of  their  charters  from  the  state  and  may  be  required  to  answer  in- 
quiries, though  individuals  are  not  subjected  to  like  provisions.'*'     The  Texas  anti- 


27.  Pub.  Acts,  Conn.  1897,  c.  153,  5  2 — 
Travellers'  Ins.  Co.  v.  Connecticut,  185  U.  S. 
364,  46  U.  S.  Lawy.  Ed.  949. 

28.  People  v.  Miller,  116  N.  T.  St.  Rep. 
621. 

29. 
30. 
31. 


State  V.  Bengsch,  170  Mo.  81. 
Chadwick  v.  Kelley,  187  U.  S.   540. 
Kennebec  Water  Dist.  v.  City  of  "Wa- 


terville,   96  Me.   234. 

32.  Otis  V.  Parker,   187  U.   S.   606. 

33.  Act   of   Mo.   March    4,   1899,    §    5 — Pabst 
Brew.  Co.  V.  Crenshaw,  120  Fed.  144. 

34.  Rice  v.  Howard   (Cal.)   69  Pac.  77. 

35.  Brandon  v.  Miller,  118  Fed.  361. 

36.  Keystone  Driller  Co.  v.  San  Francisco 
Superior  Ct.,  138  Cal.  738,  72  Pac.  398. 


37.  Pollock     V.     German      Fire     Ins.     Co. 
(Mich.)    93   N.  W.   436. 

38.  State  V.  Nichols,  28  Wash.  628,  69  Pac. 
372. 

39. 
590. 
40. 
41. 


Adams  v.  Cronin,  29  Colo.  488,  69  Pac. 


People  V.  Rotter  (Mich.)   91  N.  W.  167. 

Brown  v.  Jacobs'  Pharmacy  Co.,  115 
Ga.  429,  57  L.  R.  A.  547;  Connolly  v.  Union 
Sewer  Pipe  Co.,  184  U.  S.  540,  46  U.  S.  Lawy. 
Ed.    679. 

42.  People  v.  Butler  St.  Foundry  &  Iron 
Co.,    201    111.    236. 

43.  Kurd's  Rev.  St.  1899,  pp.  616,  617 — 
People  V.  Butler  St.  Foundry  &  Iron  Co., 
201   111.  236.     The  exemption  of  building  and 


582 


CONSTITUTIONAL  LAW. 


§  10 


trust  act,  authorizing  a  forfeiture  of  a  corporation's  charter,  does  not  deny  the 
equal  protection  of  the  law  as  authorizing  the  state  to  forfeit  the  charter  of  a 
domestic  corporation  and  revoke  the  license  of  a  foreign  corporatioa** 

There  is  no  violation  of  the  equal  protection  of  the  laws  clause,  by  an  act 
limiting  the  hours  of  employment  in  a  specified  occupation,*^  though  exempting 
cases  of  existing  written  contracts.*^  A  law  governing  hours  of  labor  on  state 
and  municipal  contracts  creates  a  distinction  between  persons  contracting  with 
the  state  and  other  employers  within  the  equality  clause.*'  There  is  a  denial  of 
the  equal  protection  by  an  act  creating  free  employment  officers,  but  prohibiting 
the  officers  thereof  to  furnish  lists  to  employers  whose  employes  are  on  a  strike.*^ 
There  is  not  a  denial  of  equality  by  the  acts  against  the  employment  of  women 
in  the  sale  of  intoxicating  liquors.*®  The  Kansas  ]\reclical  Examiners'  law  is  not 
open  to  the  objection  of  an  unlawful  discrimination,  by  providing  that  nothing 
in  the  act  shall  interfere  with  religious  beliefs  in  the  treatment  of  diseases. ^° 

Operation  of  railroads. — There  is  a  denial  of  equal  protection  by  regulations 
establishing  rates  unjustly  and  unreasonably  low.^^  There  is  not  a  denial  of  equal 
protection  by  a  provision  that  no  right  of  way  shall  be  appropriated  by  any  private 
corporation  until  full  compensation  is  first  made  and  paid  into  court,^^  nor  by 
an  act  authorizing  condemnation  of  right  of  way  of  railroad  company  for  tele- 
phone purposes,  in  that  it  allows  the  proceeding  for  numerous  counties  to  take 
place  in  one  county,  nor  because  it  fails  to  provide  for  jury  inspection,^^  nor  by 
an  act  allowing  the  assignment  of  claims  against  railroad  companies  for  injuries 
to  property,  where  the  claim  is  assignable  irrespective  of  the  statute,'*  nor  by  an 
order  of  railroad  commissioners  requiring  a  street  railroad  to  pay  one-half  the 
expense  of  constructing  and  maintaining  safety  appliances  at  a  grade  crossing  of 
a  railroad  built  after  the  construction  of  the  street  railroad.^'  There  is  no  uncon- 
stitutional discrimination  against  a  railroad  company  in  a  levee  act,  making  the 
costs  as  to  lands  in  general  a  charge  against  realty,  while  in  the  case  of  railroad 
companies  the  charge  is  against  the  owner.'*'  An  act  making  railroad  corpora- 
tions liable  for  injuries  to  employes  engaged  in  the  operation  of  the  road  by  the 
negligence  of  any  other  agent  or  servant  does  not  deny  equality,  where  construed 
as  including  all  servants  necessary  to  the  running  of  trains.'^ 

Creation  and  discharge  of  liabilities. — The  abrogation  of  the  fellow-servant 
doctrine  in  its  application  to  corporations  but  not  to  individuals  denies  to  cor- 
porations the  equal  protection  of  the  laws.'^     There  is  not  a  denial  of  the  equal 


loan  associations  from  the  operation  of  the 
act  does  not  render  It  invalid — People  v.  But- 
ler St.  Foundry  &  Iron  Co..  201  111.  236. 

44.  State  V.  Shippers'  Compress  &  Ware- 
house Co.,   95  Tex.    603. 

45.  People  V.  Lochner,  73  App.  Div.  (N.  Y.) 
120. 

46.  Pub.  Laws.  c.  1004 — In  re  Ten  Hour 
Law  for  St.   Ry.  Corp.    (R.  I.)    54   Atl.  602. 

47.  People  v.  Orange  Countv  Road  Const. 
Co.,  175  N.  Y.  84. 

48.  Laws  1899,  p.  268 — Mathews  v.  Peo- 
ple.  202  111.   389. 

49.  City  of  Hoboken  v.  Goodman  (N.  J. 
Law)   51  Atl.  1092. 

50.  State  V,  Wilcox,  64  Kan.  789,  68  Pac. 
634. 

51.  Wallace  v.  Arkansas  Cent.  R.  Co.  (C. 
C.  A.)    118   Fed.   422. 

52.  Steinhart  v.  Superior  Ct..  137  Cal.  575, 
70  Pac.  629.  59  L.  R.  A.  404;  Beveridge  v. 
Lewla.  137  Cal.  619.  67  Pac.  1040.  70  Pac. 
1083,    5*    L-    R.    A.    581.      The    constitutional 


provision  is  a  mere  limitation  on  the  power 
of  the  legislature,  negative  in  its  character, 
and  does  not  authorize  any  taking  by  any 
one  else  on  more  favorable  terms,  on  which 
corporations,  other  than  municipal,  may  take 
— Beveridge  v.  Lewis.  137  Cal.  619.  67  Pac. 
1040.  70  Pac.  1083,  59  L.  R.  A.  581. 

53.  South  Carolina  &  G.  R.  Co.  v.  Amer- 
ican Telephone  &  Telegraph  Co.,  65  S.  C.  459. 

54.  Louisville  &  N.  R.  Co.  v.  Landers,  135 
Ala.   504. 

55.  Detroit.  Ft.  W.  &  B.  L  Ry.  Co.  v.  Os- 
born,   189   U.   S.    383. 

56.  Missouri.  K.  &  T.  Ry.  Co.  v.  Cambern 
(Kan.)  71  Pac.  809. 

57.  Rev.  St.  1899.  §  2873 — Callahan  v.  St. 
Louis  Merchants'  Bridge  Terminal  R.  Co.,  170 
Mo.   473,  60  L.  R.  A.  249. 

58.  Ballard  v.  Mississippi  Cotton  Oil  Co. 
(Miss.)  34  So.  533.  But  see  Cincinnati.  H. 
&  D.  R.  Co.  V.  Thlebaud  (C.  C.  A.)  114  Fed. 
918.  decided  on  the  strength  of  Tullls  v.  Lake 
Erie  &  W.  R.  Co.,  175  U.  S.  348. 


J?  JO 


EQUAL  PROTECTION. 


583 


protection  of  the  laws  by  an  act  making  the  expenses  for  caring  for  an  insane 
patient  a  charge  against  his  estate,  though  the  property  had  been  taxed  to  help 
support  the  insane  asylum/®  nor  by  laws  giving  mortgages  of  building  and  loan 
associations  priority  over  other  liens  on  the  premises  filed  subsequent  to  the  re- 
cording thereof.®"  An  act  providing  that  persons  furnishing  material  or  labor 
to  a  contractor  on  a  public  improvement  shall  have  a  lien  on  the  money  due  the 
contractor,  providing  notice  of  the  claim  is  given  to  the  officer  whose  duty  it  is 
to  pay  the  contractor,  does  not  discriminate,  as  the  contractor  and  the  subcontractor 
are  not  in  the  same  position.®^ 

Imposing  penalties. — There  is  not  a  denial  of  equal  protection  by  laws  author- 
izing the  recovery  of  damages  and  attorney's  fees  for  failure  of  insurance  com- 
panies to  pay  losses,®^  nor  by  an  act  allowing  the  recovery  of  attorney's  fees  from 
railroad  companies  for  failure  to  keep  the  right  of  way  clear  from  inflammable 
material,®^  nor  by  an  act  imposing  a  penalty  on  carriers  for  failure  or  refusal  to 
pay  damages  within  a  certain  time,'*  nor  by  a  compulsory  vaccination  law  ex- 
cepting minors  and  persons  under  guardianship  from  the  pajnment  of  the  penalty 
for  its  violation,"  nor  by  laws  authorizing  the  recovery  of  ten  times  the  amount 
of  damages  caused  by  a  sheep-killing  dog.®*  The  clause  is  violated  by  an  act 
authorizing  the  recovery  of  costs  including  an  attorney's  fee,  from  the  mortgagee 
failing  to  release  a  mortgage  after  its  satisfaction.®^ 

Criminal  laws  and  procedure. — Equal  protection  is  not  denied  by  acts  prohib- 
iting the  sale  of  certain  species  of  game,®^  or  allowing  the  confiscation  and  sale  of 
game  illegally  killed,*'"  or  making  it  a  misdemeanor  to  work  as  barber  on  Sunday ,^'* 
or  by  local  option  laws  prescribing  a  penalty  for  sales  in  prohibition  districts,''^  or 
by  limitations  on  the  allowance  by  the  county  to  justices  for  services  on  criminal 
eases,^^  or  by  laws  specially  punishing  officers  for  embezzlement  of  bank  funds. '^^ 
There  is  no  denial  of  equal  protection  of  the  laws  by  an  act  authorizing  the  secretary 
of  the  interior  to  prescribe  rules  and  regulations  for  the  preservation  of  forests,  and 
making  the  violation  of  such  rules  a  misdemeanor,  as  the  rules  operate  alike  on  all 
persons  and  property  similarly  situated.''*  There  is  not  a  discrimination  within 
the  equal  protection  clause,  by  a  law  providing  that  one  who  records  a  wager  and 
does  not  transfer  a  memorandum  thereof  shall  not  be  punished  criminally  if  he 
makes  the  record  on  a  certain  racecourse  authorized  by  the  act.''^     An  act  prohibit- 


59.  Bon  Homme  County  v.  Berndt,  15  S. 
D.    494. 

60.  Rev.  St.  1898,  §§  2014.  2015 — JuUen  v. 
Model  Bldg.,  Loan  &  Inv.  Co.  (Wis.)  92  N. 
W.    561. 

61.  2  Starr  &  C.  Ann.  St.  1896,  p.  2572,  § 
24 — West  Chicag-o  Park  Com'rs  v.  Western 
Granite  Co.,   200  111.   527. 

63.  Iowa  Life  Ins.  Co.  v.  Lewis,  187  U.  S. 
S35.  Rev.  St.  Tex.  art.  3071 — Sun  Life  Ins. 
Co.  V.  Plilllips  (Tex.  Civ.  App.)  70  S.  W.  603. 
There  Is  not  a  denial  of  the  protection  by  a 
law  authorizing-  the  allowance  of  a  reason- 
able attorney's  fee  to  plaintiff  in  case  of  the 
unsuccessful  defense  by  an  insurance  com- 
pany of  a  suit  on  a  policy  covering  property 
totally  destroyed  by  clause  insured  against — 
Farmers'  &  M.  Ins.  Co.  v.  Dobney,  189  U.  S. 
801.  But  see  contra,  Civ.  Code  Ga.  §  2140 — 
Phoenix  Ins.  Co.  v.  Schwartz,  115  Ga.  113,  57 
L  R.  A.  752. 

63.  Cleveland,  C  C.  &  St.  L.  Ry.  Co.  v. 
Hamilton,  200  111.  633. 

64.  Porter  v.  Charleston  &  S.  Ry.  Co.,  63 
S.  C.  169. 


65.  Rev.  Laws,  c.  75,  §  137 — Common- 
wealth V.  Pear  (Mass.)    66  N.  E.  719. 

66.  Act  1886,  No.  Ill,  §  6 — Rausch  v.  Bar- 
rere,   109  La.   563. 

67.  Rev.  St.  §  2006 — Openshaw  v.  Halfin, 
24  Utah,  426.  68  Pac.  138. 

68.  Ex  parte  Kenneke,  136  Cal.  527,  69 
Pac.  2ni. 

69.  Title  of  game  is  in  the  state — Kurd's 
Rev.  St.  1899,  p.  928 — Meul  v.  People,  198  111. 
258. 

70.  Ex  parte  Northrup,  41  Or.  489,  69  Pac. 
445. 

71.  Rev.  St.  1895.  tit.  69,  arts.  3384-3399; 
Pen.  Code.  art.  402 — Rippey  v.  State  (Tex. 
Cr.  App.)    73  S.  W.   15. 

72.  Herbert  v.  Baltimore  County  Com'rs 
(Md.)  55  Atl.  376.  The  act  being  general  in 
its  operation  on  all  the  justices  within  the 
class  fixed  by  the  act — Id. 

73.  Ky.  St.  §  1202 — Commonwealth  v.  Por- 
ter, 24  Ky.  L.  R.  364,  68  S.  W.  621. 

74.  Dastervignes  v.  United  States  (C.  C. 
A.)   122  Fed.  30. 

75.  People  V.  Bennett,  113  Fed.  615. 


584 


CONSTITUTIONAL  LAW. 


§    11 


ing  unjust  discrimination  by  express  companies  against  each  other  and  imposing 
a  penalty  therefor  is  not  an  act  punishing  a  crime  by  a  special  act,  as  the  recovery 
is  by  means  of  a  civil  action.'^  An  action  for  a  penalty  is  not  a  criminal  proceed- 
ing, vithin  a  constitutional  provision  denying  the  state  the  right  to  appeal  in 
criminal  cases.''^ 

Civil  remedies  and  proceedings. — There  is  not  a  denial  of  equal  protection  of 
laws  by  a  law  authorizing  special  juries  in  cities  of  a  specified  population,  and 
requiring  the  deposit  of  a  jury  fee,^*  nor  by  laws  requiring  joinder  in  challenges  to 
jurors  by  joint  parties,'^  nor  by  laws  authorizing  recovery  against  telegraph  compa- 
nies for  mental  anguish,®"  nor  by  acts  exempting  plaintiff  in  a  personal  injury  casf 
from  the  burden  of  proving  want  of  contributory  negligence,*^  nor  by  the  practici' 
of  state  courts  allowing  proof  of  waiver  of  the  terms  of  an  insurance  policy,  with- 
out alleging  waiver  in  the  complaint.*^ 

§  11.  Privileges  and  immunities  of  citizens. — The  right  to  deal  in  alcoholic 
.stimulants  is  not  an  immunity  or  privilege  secured  to  citizens  by  the  14th  amend- 
ment.®^ Acts  are  valid  which  punish  the  selling  of  liquor  to  an  Indian  having  al- 
lotment or  patent  of  lands,  which  the  United  States  holds  in  trust  for  him.®*  A  non- 
resident has  a  right  to  engage  in  business  in  another  state,  and  by  so  doing,  does  not 
waive  his  right  to  object  to  the  constitutionality  of  a  statute  of  that  state  subjecting 
nonresidents  engaged  in  business  therein  to  judgments  without  personal  service  of 
process.®^  No  privileges  or  immunities  of  citizens  of  New  York  are  denied  bene- 
ficiaries under  a  foreign  will  by  the  tax  imposed  under  the  New  York  Inherit- 
ance Tax  Law  on  the  transfer  under  the  will  of  debts  due  decedent  by  the  citizens 
of  that  state.®' 

The  states  may,  under  this  clause,  exact  licenses  if  nonresidents  be  not  discrim- 
inated against,®^  and  may  require  possession  of  license  as  condition  to  pursuing  an 
occupation.®®  It  may  compel  foreign  insurance  companies  to  file  statements  with 
the  secretary  of  state,  and  obtain  a  license  as  a  condition  for  the  transaction  of 
business  in  the  state.®^  Permits  may  be  required  for  dairy  stables  within  city 
limits,^"  or  cattle  quarantine  laws  enforced,®^  as  well  as  those  forbidding  nonresi- 
dents to  permit  stock  to  run  at  large.®^  The  hours  of  employment  of  bakers  may  be 
limited.®^  Landowners  killing  game  on  their  own  land  may  be  punished  for  having 
it  in  possession.'*    A  practice  act  alloTvdng  service  on  the  manager  or  agent  or  per- 


70.  Adams  Exp.  Co.  v.  State  (Ind.)  67  N. 
E.   1033. 

77.  State  V.  Waters-Pierce  Oil  Co.  (Tex. 
Civ.  App.)    67  S.  W.  1057. 

78.  Eckrich  v.  St.  Louis  Transit  Co.  (Mo.) 
75   S.  W.   755. 

79.  Code  Civ.  Proc.  Cal.  §  601 — MuHer  v. 
Hale.  138  Cal.  163,  71  Pac.  81. 

80.  Simmons  v.  Western  Union  Tel.  Co., 
63  S.  C.  425,  57  L.  R.  A.  607. 

81.  Acts  1899,  p.  58 — Citizens'  St.  R.  Co. 
v.  Jolly   (Ind.)   67  N.  E.  935. 

82.  Andrus  v.  Fidelity  Mut.  Life  Ins. 
Ass'n.  168  Mo.   151. 

83.  Busch  v.  Webb.  122  Fed.  655;  City  of 
Danville  v.  Hatcher  (Va.)  44  S.  E.  723;  Rip- 
pey  v.  State  (Tex.  Cr.  App.)  73  S.  W.  15;  City 
of  Hoboken   v.   Goodman,    68   N.   J.   Law,    217. 

84.  No  privilege  of  the  Indian  as  a  citizen 
is  destroyed — Mulligan  v.  United  States  (C. 
C.  A.)    120   Fed.   98. 

85.  Moredock  v.  Kirby,  118  Fed.  180. 
80.     Blackstone  v.  Miller.   188  U.  S.  189. 
87.     Transient    merchants — Levy    v.    State 


(Ind.)  68  N.  E.  172.  Immigrant  agents  (22 
Stat.  p.  812) — State  v.  Napier,  63  S.  C.  60.  A 
vehicle  tax  ordinance  dividing  vehicles  and 
teams  into  different  classes,  and  imposing  oc- 
cupation tax  on  the  different  classes,  is  not 
void  as  exacting  a  tax  for  the  privilege  of 
using  vehicles  and  thereby  abridges  the 
right  of  citizens  to  use  the  streets  (Kansas 
City  Charter,  1889.  art.  3,  §  1) — Kansas  City 
V.  Richardson,  90  Mo.  App.  450.  The  clause 
is  violated  by  license  acts  operative  only  on 
non-residents  of  the  state — In  re  Jarvis 
(Kan.)   71  Pac.  576. 

88.  Medicine — Parks  v.  State,  159  Ind.  211. 

89.  Vt.    St.    §    4181 — Cook   V.    Rowland,    74 
Vt.  393. 

90.  St.  Louis  V.  Fischer,  167  Mo.  654. 

91.  Sess.  Laws  Colo.   1885,  p.  335 — Reld  v. 
Colorado,   187  U.  S.   137. 

92.  State  v.  Smith  (Ark.)  75  S.  W.  1081. 

93.  Laws  1897,  c.  415,  art.  8,  §  110 — People 
v.  Lochner,   73  App.   Div.    (N.   T.)    120. 

94.  People  V.  Van  Pelt    (Mich.)    90  N.  W. 
424. 


§  12 


SPECIAL  PRIVILEGES. 


585 


son  having  charge  of  the  business  of  a  nonresident  is  offensive  to  this  clause,®' 
but  laws  requiring  the  appointment  of  a  resident  assignee  for  the  benefit  of  creditors 
are  not.®®  One  who  has  a  right  to  protect  must  make  objection ;  lience  an  ordinance 
confining  labor  on  public  works  to  citizens  is  not  available  as  a  defense  to  a  suit  to 
enforce  the  payment  of  a  lien  on  abutting  property  for  its  proportion  of  the  costs 
of  improvement.®^ 

§  18.  Grants  of  special  privileges  and  immunities;  class  legislation. — The 
rules  for  interpretation  of  statutes  to  determine  if  they  do  or  do  not  tend  to  the 
violation  of  this  provision  are  treated  in  a  later  article.**®  The  constitutional  pro- 
vision against  grants  of  special  privileges  and  immunities  is  violated  by  an  act 
creating  an  election  commission  to  be  appointed  from  persons  named  by  political 
committees,®®  and  by  an  act  prohibiting  the  sale  of  nontransferable  passes,  and  im- 
pliedly giving  the  railroad  power  to  make  the  sale  lawful  by  not  expressing  a  non- 
transferable condition.^  The  clause  is  not  violated  by  medical  registration  acts,^ 
by  exception  of  labor  unions  from  the  operation  of  trust  acts,^  by  acts  allowing 
members  of  the  bar  to  nominate  jury  commissioners,*  or  acts  allowing  the  aj)point- 
ment  of  civil  service  commissioners  by  the  president  of  a  county  board  without 
consent  and  advice  of  the  board.''  Laws  allowing  liquor  manufacturers  to  sell  at 
wholesale  to  outside  dealers  within  a  municipality  which  has  prohibited  sale  of 
liquor,  are  valid.®  The  objection  on  this  ground  is  not  tenable  if  the  act  has  uni- 
form application.''  A  ''corporation"  within  this  clause  does  not  embrace  a  munici- 
pality.® In  the  note  are  collected  decisions  passing  on  numerous  acts  objected  to  as 
class  legislation.® 


05.  Civ.  Code  Pr.  Ky.  §  51,  subs.  6 — More- 
dock  V.  Kirby,   118  Fed.   180. 

90.  Duryea  v.  Guthrie  (Wis.)  94  N.  W. 
365. 

J>7.  Suit  to  enforce  lien  on  abutting- 
property — Chadwick  v.  Kelley,  187  U.  S.  640. 

98.  Statutes. 

99.  State  v.  Washburn,   167  Mo.  680. 

1.  111.  Act,  June  10,  1897 — Allardt  v.  Peo- 
ple. 197  111.  501. 

2.  Act  Idaho,  March  3,  1899 — In  re  Inman 
(Idaho)    69   Pac.    120. 

3.  Comp.  St.  Neb.  1901,  c.  91  A — Cleland  v. 
Anderson   (Neb.)    92  N.  W.   306. 

4.  Sess.  Laws  1901,  p.  204 — State  v.  Vance, 
29  Wash.   435,   70  Pac.  34. 

5.  1  Starr  &  C.  Ann.  St.  (2nd  Ed.  p.  1102) 
— Morrison  v.  People.  196  111.   454. 

6.  Lloyd  V,  Dollisin,   23  Ohio  Circ.   R.   571. 

7.  An  Act  authorizing  the  construction  of 
side  walks  by  a  city  on  refusal  of  the  prop- 
erty owner  and  exempting  the  city  from 
Ualjility  for  injuries  on  such  sidewalks  does 
not  grant  an  immunity  not  allowed  to  other 
municipal  corporations,  where  the  provision 
exists  In  the  charter  of  the  municipality — 
Dallas  V.  Lentz  (Tex.  Civ.  App.)  69  S.  W. 
166.  2  Burns'  Rev.  St.  Ind.  1901,  §§  54,  58c, 
authorizes  cities  of  over  100,000  to  grant  to 
existing  street  railway  corporations  a  fran- 
chise not  exceeding  34  years,  the  company 
to  surrender  all  franchises  or  right  to  use 
the  street.  The  act  further  provides  that 
if  no  extension  is  granted  between  the  enact- 
ment of  the  statute  and  nine  months  of  the 
expiration  of  the  franchise  the  company  may 
remove  its  tracks,  and  the  board  of  public 
works  shall  open  the  right  to  occupy  the 
streets  to  free  competition  and  authorizes 
the  successful  bidder  to  condemn  the  prop- 
erty of  the  former  occupant  of  the  street. 
Another  section  provides  that  the  contractual 


rights  of  the  board  of  public  works  with  ref- 
erence to  the  use  of  streets  are  not  taken 
away  by  statute  except  by  a  contract  under 
it.  Another  section  requires  the  companies 
operating  under  the  statute,  to  charge  fixed 
rates  which  are  in  excess  of  those  fixed  by 
an  earlier  statute.  No  provision  of  the  stat- 
ute gives  the  board  of  public  works  of  the 
city  of  Indianapolis  power  to  grant  fran- 
chise to  street  railroads  for  such  terms  and 
on  such  conditions  as  it  sees  fit.  Held,  that 
the  act  did  not  grant  a  right  to  an  existing 
Indianapolis  street  railway  company,  denied 
to  others,  by  which  it  could  charge  a  higher 
fare  than  other  companies,  in  violation  of 
the  constitutional  provision  against  the 
granting  of  special  privileges  or  immunities, 
since  the  benefits  are  not  confined  to  exist- 
ing corporations— Smith  v.  Indianapolis  St. 
Ry.  Co.,  158. Ind.  425. 

8.  Pub.  Laws  N.  J.  p.  73 — State  Board  of 
Health  v.  Diamond  Mills  Paper  Co.,  63  N.  J. 
Eq.    111. 

9.  I^aws  infringing  rule:  The  minimum 
wage  law  affecting  only  employmen-t  of  un- 
skilled laborers  on  public  works  (Burns' 
Rev.  St.  1901,  §§  7055a,  b) — Street  v.  Varney 
Electrical  Supply  Co.  (Ind.)  66  N.  E.  895.  An 
order  of  a  city  council  singling  out  particu- 
lar switch  tracks  and  ordering  their  removal 
"as  the  same  are  a  nuisance,"  as  the  city 
council  could  only  have  this  power  by  the 
enactment  of  a  general  ordinance  applicable 
to  all  switch  tracks — People  v.  Block!  (111.) 
67  N.  E.  809.  Prohibiting  merchants  from 
taking  the  assignment  of  miners"  wages  in 
consideration  of  checks  or  devices  redeem- 
able in  merchandise,  as  it  is  limited  to  mer- 
chants on  one  hand  and  coal  operators  on  the 
other  (Burns'  Rev.  St.  1901.  §  7448  A) — Dixon 
V.  Poe,  169  Ind.  492,  60  L.  R.  A.  308. 

La-rvB  not  objectionable  at*  class  leglslatioti! 


5b6 


CONSTITUTIONAL  LAW. 


§   13 


§  13,  Laws  impairing  the  obligations  of  contracts. — This  inhibition  does  not 
lie  upon  the  United  States.^"  It  binds  a  state  constitution,  hence  it  cannot  so 
retroact  on  a  prior  mortgagee  as  to  impair  his  rights  of  priority." 

What  is  a  contract. — There  must  be  an  enforceable  obligation."  It  must  have 
been  complete  before  the  offensive  law  passed."  Hence  an  act  may  be  valid  if  it  only 
operates  upon  unformed  obligations  arising  on  an  existing  contract.^*  A  lessee 
holding  over  under  an  executed  lease  will  not  have  his  rights  cut  down  by  a  law 
passed  after  the  law  implied  the  new  obligation." 

Judgments"  and  laws  governing  the  alienation  of  the  public  domains  are  not 
contracts  within  the  limitations."  If  a  mortgage  be  foreclosed,  the  obligation  passes 
into  decree,  and  in  this  view  is  noncontractual."  Ordinances  having  reference  to 
contracts  for  water  supply"  are  laws  of  the  state.  The  purchaser  of  invalid  rail- 
road bonds  has  no  contract  right  protected  by  the  constitution  against  impairment, 
because  the  purchase  was  made  on  the  faith  of  the  former  decision  tending  to 
show  validity  of  the  bond.^"  An  act  making  it  unlawful  to  sell  adulterated  goods 
will  not  act  obnoxiously  on  contracts  for  sale  of  such  goods.^^ 


Extending  time  for  filing  petition  for  damages 
caused  by  change  of  railroad  grade  and  ex- 
cepting terminal  companies — Dunbar  v.  Bos- 
ton   &    P.    R.    Corp..    181    Mass.    383.      Medical 
registration  laws   (Act  Idaho,  March  3,  1899) 
—In  re  Inman  (Idaho)  69  Pac.  120.     Allowing 
recovery  of  attorney's  fees  in  actions  against 
railroad   companies   for  taking  land  without 
compensation  (Gen.  St.  1894,  §  2661) — Pfaend- 
er  V.  Chicago  &  N.  W.  Ry.  Co.,  86  Minn.  218. 
Against  gambling,  punislaing  the  proprietors 
of  the  game  and  excepting  from  punishment 
the  patrons — State  v.  Woodman,  26  Mont.  348, 
67  Pac.  1118.     Limiting  hours  of  labor  of  wo- 
men employees  is  not,  where  it  has  uniform 
application  to  all  women  employment  in  the 
establishments  described  (Act  March  31.  1899) 
— Wenham    v.    State    (Neb.)     91    N.    W.    421. 
Making  it  a  misdemeanor  to  work  as  a  bar- 
ber on   Sunday   (Sess.   Laws   1901,  p.   17) — Ex 
parte  Northrup,   41  Or.  489,  69  Pac.   495.     Al- 
lowing recovery  against  telegraph  companies 
for    mental    anguish    [Act    Feb.    20,    1901    (23 
Stat.    p.    748)] — Simmons    v.    Western    Union 
Tel.  Co.,  63  S.  C.  425,  57  L.  R.  A.  607.     Allow- 
ing children  within  a  certain  distance  of  the 
city  limits  to  attend  the  nearest  city  school 
free  of  tuition  (Acts  1899.  c.  59) — Edmondson 
V.  Board  of  Education,   108   Tenn.   557.     Pro- 
hibiting  sale   of   liquors   in   local  option  dis- 
trict— State  V.  Johnson,  86  Minn.  121;  Rippey 
V.  State  (Tex.  Cr.  App.)  73  S.  W.  15.     Forbid- 
ding liquor  sales  within  a  certain  distance  of 
an  institution  of  learning,  though  it  excepts 
wholes.-\!ers — Webster    v.    State     (Tenn.)     75 
S.  W.  1020.     Making  it  a  misdemeanor  to  pur- 
chase   material    on    credit    under   representa- 
tions that  it  is  to  be  used  in  a  certain  build- 
ing  whereas   it   is    used    in   another   building 
without    the   consent   of  the   seller    (Rev.   St. 
1899,  §  4226) — State  v.  Gregory,  170  Mo.  598. 
.Making  a  jury  law  apply  only  to  counties  of 
a    certain    population    (Acts    1901,    c.    124)  — 
Turner  v.  State   (Tenn.)    69  S.  W.  774.     Mak- 
ing a  sale  of  goods  in  bulk  fraudulent  unless 
the  parties   tak<;  an   inventory  five  days  be- 
fore the  sale,   and   the   purchaser  makes   in- 
quiries as  to   the  creditors  of  the  seller  and 
gives    five    days    notice    of    the    sale    stating 
cost    price    and    the    price    to    be    paid    (Acts 
1901.  c.   133) — Neas  v.   Borches    (Tenn.)    71   S. 
W.  60.     Making  fraudulent  a  sale  of  a  stock 


of  goods  In  bulk  without  demanding  and  re- 
ceiving from  the  vendor  verified  list  of  all 
credits  with  the  amount  of  his  Indebtedness 
(Pierce's  Code.  §  5346) — McDaniels  v.  J.  J. 
Connelly  Shoe  Co.,  30  Wash.  549,  71  Pac.  37. 
Authorizing  the  making  of  a  proper  assess- 
ment on  failure  of  a  prior  assessment  for 
defects  therein  (Rev.  St.  Wis.  1898,  §  1210,  as 
amended  by  laws  1901,  1902,  c.  9) — Schintgen 
v.  La  Crosse  (Wis.)  94  N.  W.  84.  Allowing 
the  secretary  of  the  interior  to  prescribe 
rules  for  the  preservation  of  forests  and 
making  the  violation  of  such  rules  a  mis- 
demeanor— Dastervignes  v.  United  States  (C. 
C.  A.)  122  Fed.  30.  Making  it  a  misdemeanor 
to  buy  or  sell  species  of  game — Ex  parte 
Kenneke.  136  Cal.  527,  69  Pac.  261.  An  act 
giving  the  county  superintendent  a  specified 
mileage  allowance  in  one  class  of  counties, 
and  a  greater  allowance  in  another  class  of 
counties — Henry  v.  Thurston  County  (Wash.) 
72  Pac.  488. 

10.  Ansley  v.  Ainsworth  (Ind.  T.)  69  S. 
W.   884. 

11.  Later  one  dispensed  with  registration 
of  a  homestead — Blouin  v.  Ledet,  109  La.  709. 

12.  "Void  contracts  not  protected — Cam- 
eron's Ex'rs  V.  State  (Tex.  Civ.  App.)  67  S. 
W.  348. 

13.  Blackstone  v.  Miller,  188  U.  S.  189. 
Law  need  only  have  been  enacted  but  not 
operative  when  contract  is  made  (Rev.  St. 
Wis.  1898,  §  1770) — Diamond  Glue  Co.  v. 
United  States  Glue  Co.,   187  U.  S.  611. 

14.  Act  providing  that  notes  and  mort- 
gages by  associations  shall  be  negotiable 
only  on  the  order  of  court  or  judge  (Burns' 
Rev.  St.  1901,  §  4463e) — Bowlby  v.  Kline,  28 
Ind.   App.    659. 

15.  Caley  v.  Thornqulst  (Minn.)  94  N.  W. 
1084. 

16.  Changing  rate  of  interest  on  judg- 
ments— Stanford  v.  Coram  (Mont.)  78  Pac. 
655. 

17.  Waggoner  v.  Flack,  188  U.  S.  595;  Wil- 
son V.  Standefer,  184  U.  S.  399,  46  U.  S. 
Lawy.  Ed.  612. 

18.  Limitation  law  upon  certificate  of  pur- 
chase— Bradley  v.  Lightcap,  201  111.  511. 

19.  American  Waterworks  &  Guarantee 
Co.  V.  Home  Water  Co.,  115  Fed.   171. 


g  13 


IMPAIRING  CONTRACTS. 


587 


The  legislature,  being  empowered  to  alter  school  districts  by  taking  territory 
from  one  and  adding  it  to  another,  impairs  no  obligation  of  contract  in  so  doing, 
of  which  one  of  the  districts  may  complain.--  On  consolidation  of  districts  into 
one  which  assumes  their  debts,  it  does  not  matter  that  a  part  of  one  is  not  taken 
in.-^  The  state  may  abolish  an  office,  though  the  incumbent  will  in  consequence  not 
share  in  a  pension  fund  to  which  he  has  contributed.^* 

State  or  municipal  contracts  are  as  much  protected  as  one  made  between  in- 
dividual citizens.-^  A  city  warrant  drawn  on  an  appropriation  is  protected  against 
repeal  of  the  appropriation  ordinance.^*  An  act  organizing  a  county  board  of 
education,  with  power  to  determine  the  course  of  study  and  enter  into  contracts 
for  text  books  for  a  term  of  years,  is  not  objectionable  as  authorizing  an  impairment 
of  contracts  of  the  state  board  with  like  powers  as  to  the  state.^^  There  is  no  viola- 
tion of  the  obligation  of  a  contract  by  a  change  in  the  municipal  charter  requiring 
the  presentation  of  claims  to  the  city  council  for  allowance  as  a  condition  to  suit 
thereon.-* 

Corporate  charters  and  franchises. — The  power  of  a  state  reserved  in  its  consti- 
tution to  change  general  laws  governing  corporations  is  to  be  construed  in  connection 
with  federal  constitution  against  laws  impairing  the  obligation  of  contracts,  and 
rights  honestly  acquired  by  corporations  and  lawfully  exercised  cannot  be  arbitrarily 
destroyed  by  state  legislature.^® 

Where  the  general  incorporation  law  reserves  such  power,  this  right  becomes 
part  of  the  contract  of  every  stockholder,  and  amendatory  acts  do  not  impair  the 
obligation,^"  except  as  to  charters  already  granted.^^  The  legislature  may  not 
authorize  a  municipality  to  so  bind  it  as  not  to  exercise  its  retained  powers  of 
supervision  over  corporations.^^  But  the  charter  or  the  constitution  must  reserve 
this  power  of  alteration.^^  Where  the  validity  of  a  corporation  is  questionable, 
there  is  no  impairment  by  legislation  authorizing  the  corporation  to  become  a  cor- 
poration de  jure.^* 

Under  this  power  of  amendment  the  legislature  may  legislate  as  to  rates  charged 
by  public  service  corporations.^*     An  ordinance  giving  a  street  railroad  the  right  to 


20.  Zane  v.  Hamilton  County,  189  U.  S. 
370. 

21.  Hecht  V.  Wright   (Colo.)   72  Pac.   48. 

22.  Laws  1898,  c.  576 — Board  of  Education 
of  Union  Free  School  Dist.  No.  6  v.  Board  of 
Education  of  Union  Free  School  Dist.  No.  7. 
76  App.  Div.   (N.  Y.)   355. 

2.3.  Local  Acts  1901,  No.  315 — Attorney 
General  v.  Lowrey  (Mich.)   92  N.  W.  289. 

24.  Vested  rights  if  any  in  the  fund  are 
protected — People  v.  Coler,   173  N.   Y.  103. 

25.  Shinn  v.  Cunningham  (Iowa)  94  N.  W. 
941.     Contract  by  county — Id. 

26.  Moores  v.  State  (Neb.)  93  N.  W.  733. 

27.  Rand,  McNally  &  Co.  v.  Hartranft.  29 
Wash.   591,  70  Pac.   77. 

28.  Oshkosh  Waterworks  Co.  v.  Oshkosh, 
187  U.  S.  437. 

29.  San  Joaquin  &  K.  R.  Canal  &  Irr.  Co. 
V.  Stanislaus  County,   113  Fed.  930. 

30.  C.  H.  Venner  Co.  v.  United  States  Steel 
Corp.,  116  Fed.  1012.  An  act  fixing  the  rate 
of  taxation  on  the  gross  receipts  of  the  rail- 
road company,  will  not  violate  the  obligation 
of  the  charter  under  such  a  law,  exempting 
from  taxation — Northern  Cent.  Ry.  Co.  v. 
Maryland,  187  U.  S.  258. 

31.  Making  railroad  insurer  against  fires 
communicated  from  engines — MacDonald  v. 
New  York,  N.  H.  &  H.  R.  R.  Co.,  23  R.  I.  558. 


32.  City  of  Tampa  v.  Tampa  Water  Works 
Co.  (Fla.)  34  So.  631. 

33.  Changing  tax  exemption — State  v.  Ala- 
bama Bible  Soc.   134  Ala.   632. 

34.  Deitch  V.  Staub  (C.  C.  A.)  115  Fed 
309. 

35.  Water  rates — City  of  Tampa  v.  Tampa 
Water  Works  Co.  (Fla.)  34  So.  631.  A  water 
company  cannot  complain  of  an  impairment 
of  its  contract  rights  by  an  ordinance  re- 
ducing rates,  where  the  company  was  in- 
corporated under  an  act  giving  the  company 
the  right  to  charge  such  rates  as  might  be 
agreed  upon  with  consumers,  as  this  proviso 
expressly  recognized  the  power  in  the  munic- 
ipality to  regulate — Knoxville  Water  Co.  v. 
Knoxville,  189  U.  S.  434.  Gas — People's  Gas- 
light &  Coke  Co.  V.  Chicago,  114  Fed.  384. 
The  Canal  Act  of  1862,  makes  it  the  duty  of 
county  boards  in  fixing  water  rates  to  base 
same  on  the  amount  of  capital  actually  in- 
vested. Act  of  1885,  allowed  the  board  to 
estimate  the  value  on  the  property  actually 
used.  Held,  that  a  fixing  of  the  rates  on  a 
basis  other  than  the  capital  actually  invest- 
ed, when  applied  to  corporations  organized 
under  Act  1S62,  would  amount  to  an  impair- 
ment of  the  obligation  of  their  charter  con- 
tracts— San  .Toaquin  &  K.  R.  Canal  &  Irr.  Co. 
v.    Stanislaus    County,    113    Fed.    930. 


5S8 


CONSTITUTIONAL  LAW. 


§   1^ 


charge  a  maximum  fare  gives  the  company  a  contract  right  to  charge  that  rate, 
which  cannot  be  reduced  under  pretense  of  regulation  without  the  company's  con- 
sent ;^^  but  such  a  contract  rate  may  be  lost  by  leasing  to  an  operating  company 
which  is  subject  to  regulation. ^^ 

A  charter  authorizing  the  issuance  of  common  stock,  preferred  stock  and  bonds, 
and  giving  the  corporation  the  right  to  increase  the  bond  issue  for  necessary  objects 
and  to  decrease  its  capital  stock  by  purchasing  shares  for  retirement,  does  noi 
create  a  contract  entitling  the  stockholder  to  insist  that  the  relative  proportions  of 
the  different  classes  remain  the  same.^*  An  act  relating  to  the  rights  of  withdraw- 
ing shareholders  of  a  building  association,  if  retroactive,  is,  to  the  extent  that  it  im- 
pairs the  obligation  of  contract  implied  in  a  pre-existing  membership  in  the  associa- 
tion, unconstitutional.^®  An  act  making  it  a  felony  for  building  association  officers 
to  accept  dues  after  knowledge  of  insolvency  does  not  impair  the  contract  to  pay 
dues."" 

Public  service  franchises  are  contracts  within  this  clause.*^  Where  a  street 
railroad  company,  incorporated  under  general  statutes,  has  not  obtained  the  con- 
sent of  the  city  authorities,  it  may  not  object  that  there  is  an  impairment  of  obliga- 
tion of  contract  by  the  construction  by  the  city  of  a  railroad  on  streets  selected  for 
its  lines.*^  There  is  no  impairment  by  acts  requiring  railroads  to  construct*^  and 
maintain  grade  crossings.**  A  street  railway  grant  to  use  streets  may  not  be  arbi- 
trarily impaired  or  rejected,  though  it  is  subject  to  conditions  imposed  by  statute 
and  to  the  proper  exercise  of  the  police  power  of  the  municipality.*^  It  may  be  com- 
pelled to  clean  between  its  tracks,*®  or  to  pave  them.*' 

Tax  and  assessment  laws. — An  act  imposing  a  specific  tax  on  certain  business 
occupations,  not  to  become  operative  until  a  certain  time  after  its  passage,  does  not 


36.  Detroit  v.  Detroit  Citizens'  St.  Ry.  Co., 
184  U.   S.   368.   46  U.  S.  Lawy.  Ed.   592. 

57.  Chicago  Union  Traction  Co.  v.  Chi- 
cago, 199  111.  484,  59  L.  R.  A.  631. 

58.  C.  H.  Venner  Co.  v.  United  States  Steel 
Corp.,  116  Fed.  1012. 

39.  Intiso  V.  Metropolitan  Sav.  &  Loan 
Ass'n,   68  N.  J.  Law.   588. 

40.  Act  May  17,  1899  (Acts  1899,  p.  121)  — 
State  V.  Missouri  Guarantee  Sav.  &  Bldg. 
Ass'n,  167  Mo.   489. 

41.  There  is  an  impairment  of  a  contract 
by  an  ordinance  for  the  erection  of  electric 
or  water  works  in  competition  with  a  com- 
pany operating  under  a  prior  ordinance 
granting  a  franchise  for  a  term  of  years 
(Southwest  Missouri  Light  Co.  v.  City  of 
Joplin.  113  Fed.  817;  Potter  County  Water  Co. 
V.  Borough  of  Austin  (Pa.)  55  Atl.  991;  if  the 
franchise  be  accepted  and  used — Capital  City 
Light  &  Fuel  Co.  v.  Tallahassee.  168  U.  S. 
401,  46  U.  S.  Lawy.  Ed.  1219;  Underground 
R.  of  New  York  v.  City  of  New  York.  116 
Fed.  952.  An  unexercised  option  to  buy  such 
works  is  not  impaired  by  constructing  new 
works— Xewburyport  Water  Co.  v.  City  of 
Newburyport,  113  Fed.  677.  Where  a  tele- 
phone company  uses  a  street  under  permis- 
sion of  the  city  under  a  grunt  and  has  es- 
tablished a  plant,  it  may  not  be  required 
thereafter  to  pay  for  the  use  of  the  street 
as  an  additional  condition — Sunset  Telephone 
&  Telegraph  Co.  v.  City  of  Medford,  115  Fed. 
202.  An  electric  franchise  accepted  by  a 
corporation  on  which  large  sums  of  money 
had  been  expended  in  making  improvements 
amounts     to    a    contract     which     cannot     be 


changed  without  the  consent  of  the  com- 
pany and  w^iU  prevent  a  demand  for  compen- 
sation for  use  of  ground  occupied  by  poles — 
Hot  Springs  Elec.  Light  Co.  v.  Hot  Springs, 
70   Ark.   300. 

42.  Underground  R.  of  New  York  v.  City 
of  New   York.    116   Fed.    952. 

43.  Code  1892,  §  3555 — Illinois  Cent.  R 
Co.  V.  Copiah  County  (Miss.)  33  So.  502. 
Pub.  Laws  1898,  p.  110 — Palmyra  Tp.  v. 
Pennsylvania  R.  Co.,  63  N.  J.  Eq.  799.  An 
act  allowing  the  making  of  contracts  with 
railroads  for  the  relief  of  city  from  ob- 
struction of  railroad  crossings  and  grade, 
under  a  plan  adopted  or  to  be  adopted  by 
commissioners  to  be  appointed,  giving  com- 
missioners power  to  adopt  a  general  plan 
and  change  the  same  as  to  any  detail,  but 
denying  them  a  right  to  adopt  a  general 
plan  extending  beyond  the  one  heretofore 
adopted,  or  from  extending  the  general  plan 
adopted  by  them,  does  not  amount  to  an 
impairment  of  the  obligation  of  the  con- 
tract— Lehigh  Valley  Ry.  Co.  v.  Adam,  70 
App.   Div.    (N.   Y.)    427. 

44.  Vt.  St.  §§  3844-3846 — Town  of  Claren- 
don V.   Rutland  R.  Co.    (Vt.)   52  Atl.  1057. 

45.  Town  of  Mason  v.  Railroad  Co.,  51 
W.  Va.  183;  City  of  Springfield  v.  Spring- 
field St.  Ry.  Co..  182  Mass.  41;  City  of  Wor- 
cester V.  Worcester  Consol.  St.  Ry.  Co.,  182 
Mass.   49. 

46.  Chicago  v.  Chicago  Union  Traction 
Co..    199    111.   259.    59    L.    R.  A.    666. 

47.  Asphalt  in.stead  of  stone  as  prescribed 
by  charter — Binninger  v.  City  of  New  York. 
80   App.   Div.    (N.  Y.)    438. 


§14 


RETROACTIVE  LAWS. 


589 


impair  the  obligation  of  a  contract.*^  The  New  York  franchise  tax  act,  authorizing 
valuation  for  general  taxes  of  all  special  franchises  by  state  boards  appointed  by  the 
governor,  does  not  impair  the  obligation  of  a  contract,  as  it  does  not  change  any  part 
of  the  corporate  grants  and  exacts  nothing  from  the  owners  that  is  not  exacted  from 
property  owners  of  the  state.*® 

Regulation  of  remedies. — Remedial  rights  may  be  abridged  if  a  reasonable  time 
be  allowed  to  pursue  remedies  existing.^°  The  remedy  to  enforce  a  contract  is  not 
a  part  of  the  contract  so  as  to  prevent  control  thereof  by  the  legislature.^^  There 
is  no  impairment  of  the  obligation  of  a  contract  by  an  act  allowing  a  surety  to  set 
up  any  defense  of  which  his  principal  might  have  availed  himself,^^  nor  by  the  pro- 
vision of  the  bankruptcy  act  dissolving  an  attachment,  where  the  attachment  was 
secured  long  after  the  act  took  effect,^^  nor  by  an  act  relating  to  the  enforcement  of 
mortgages  after  notes  secured  are  barred  by  limitation,  and  declaring  that  no  suit 
shall  be  had  to  foreclose  any  mortgage  previously  executed  to  secure  any  such  obliga- 
tion after  two  years  from  the  passage  of  the  act.^*  A  carrier's  contract,  limiting  lia- 
bility, is  not  impaired  by  a  law  requiring  it  to  locate  the  connecting  carrier  to  which 
loss  is  attributable.^^  Recording  acts  making  period  of  lien  depend  upon  the  time 
of  recording  are  valid. ^®  A  lien  for  labor  may  be  made  prior  to  a  mortgage  later  in 
time  but  earlier  recorded.^^  A  statutory  attorney's  fee  cannot  be  impressed  on  a 
contract  by  subsequent  law.^* 

§  14.  Retroactive  legislation;  vested  rights.^^ — Many  state  constitutions  put 
the  ban  on  all  retrospective  laws.®" ,  Otherwise  the  state  may  pass  retrospective  laws,'* 
so  long  as  other  limitations  of  its  power  are  not  transgressed.®^     A  citizen  can  have 


48.  Kehrer  v.   Stewart    (Ga.)    44   S.   E.   854. 

Exemption  from  taxes  is  a  contract — Ban- 
croft V.  Wicomico  County  Com'rs,  121  Fed. 
874;  State  v.  Alabama  Bible  Soc,  134  Ala. 
<)32.  And  see  Northern  Cent.  Ry.  Co.  v. 
Maryland.  187  U.  S.   258. 

49.  People  V.  State  Board  of  Tax  Com'rs, 
174   N.   Y.    417. 

50.  Act  providing  that  ground  rents 
should  be  presumed  released  after  21  years, 
is  valid  if  postponed  for  reasonable  time  in 
taking  effect — Wilson  v.  Iseminger,  185  U. 
S.  55,  46  U.  S.  Lawy.  Ed.  804.  Laws  impair- 
ing priorities  are  not  merely  remedial — 
Blouin   V.  Ledet,   109  La.   709. 

51.  Kendall  v.  Fader,  99  111.  App.  104; 
Devalinger  v.  Maxwell  (Del.)  54  Atl.  684. 
Where  the  obligations  of  a  railroad  corpora- 
tion to  the  state  have  been  fixed  by  statute, 
a  later  act  is  unconstitutional  which  at- 
tempts to  increase  these  obligations  but  not 
where  the  effect  is  merely  to  provide  a 
remedy  for  enfor.  ement  of  liabilities  created 
by  the  earlier  statute — Terre  Haute  &  I. 
R.  Co.  v.  State,  159  Ind.  438.  An  act  raising 
the  amount  of  exemption  from  forced  exe- 
cution, applies  to  the  remedy  and  does  not 
effect  contractual  relation  of  the  parties 
contracted  before  the  passage  of  the  act. 
and  hence  does  not  impair  the  obligation 
of  contracts — Folsom  v.  Asper,  25  Utah,  299, 
71  Pac.  315.  Ob.iection  untenable  where 
urged  against  a  repealing  act  reinstating 
parties  in  their  former  rights  (Rev.  St. 
1879) — Knights  Templars',  etc..  Indem.  Co.  v. 
Jarman.  187  U.  S.  197.  Rev.  St.  c.  77,  §  30, 
p.  625  limiting  life  of  a  certificate  of  pur- 
chase upheld — Bradley  v.  Lightcap.  201  111. 
Bit. 

52.  Flags  V.  Locke,  74  Vt.  320. 


53.  Wood   V.    Carr,    24  Ky.   L.   R.    2144,   73 

S.  W.   762. 

54.  Rev.  St.  Mo.  1899,  §  4277— Kreyling 
V.  O'Reilly,  97  Mo.  App.  384. 

55.  Civ.  Code,  Ga.  §§  2317,  2318 — Central 
of  Georgia  Ry.  Co.   v.  Murphey,   116  Ga.  863. 

56.  Knights  of  Maccabees  v.  Nitsch  (Neb.) 
95   N.    W.    62G. 

57.  Sutton  v.  Consolidated  Apex  Min.  Co.. 
15   S.  D.   410. 

58.  Kendall  v.   Fader,    99   111.   App.   104. 

59.  The  forthcoming  article  on  Statutes 
should  be  consulted  as  to  the  rules  for  in- 
terpreting statutes  with  respect  to  their 
operation. 

60.  An  Act  making  findings,  maps  and 
surveys  of  a  canal  commission  evidence 
held  invalid — State  v.  Cincinnati  Tin  &  Ja- 
pan Co.,  66  Ohio  St.  182.  An  act  open  to  the 
construction  that  it  will  allow  the  court  to 
annul  or  vary  final  judgments  entered  be- 
fore its  passage,  is  objectionable  as  retro- 
spective legislation  w^ithin  the  constitution- 
al inhibition.  Laws  N.  Y.  1900,  c.  742,  allow 
a  court  on  application  of  either  party  to  an 
action  of  divorce  at  any  time  after  final 
judgment  whether  heretofore  or  hereafter 
rendered  to  annul,  vary  or  modify  a  direc- 
tion in  the  judgment  requiring  defendant  to 
provide  for  the  support  of  plaintiff  and  for 
the  education  and  maintenance  of  the  chil- 
dren of  the  parties — Livingston  v.  Living- 
ston, 173  N.  Y.  377. 

61.  Kiskaddon  v.  Dodds,  21  Pa.  Super.  Ct. 
351;  League  v.  Texas,  184  U.  S.  156,  46  U.  S. 
Lawy.    Ed.    478. 

62.  In  Montana  the  only  limitation  as  to 
retrospective  legislation.  Is  that  prohibit- 
insr  ex  post  facto  laws  and  laws  impairing 
the  obligat''^"  of  contracts — Bullard  v. 
Smith    (Mont.)    72  Pac.    76i. 


590 


CONSTITUTIONAL  LAW. 


§    H 


no  vested  right  in  general  law  which  can  preclude  its  amendment  or  repeal,  and 
there  is  no  implied  promise  on  the  part  of  the  state  to  protect  its  citizens  from  in- 
cidental injury  occasioned  by  changes  in  law.®^  There  is  no  disturbance  of  vested 
rights  by  an  act  amounting  only  to  a  declaration  of  rights  of  the  state  under  a  grant 
to  a  city."*  A  public  corporation  cannot  acquire  vested  contract  rights  as  to  the 
time  of  maturity  of  bonds  held  by  it  against  another  public  corporation."^  There  is 
no  impairment  of  a  vested  right  by  a  law  regulating  the  practice  of  dentistry  and 
requiring  a  license  as  a  condition  to  practice,  though  applied  to  one  engaged  in  the 
practice  before  the  enactment  of  the  law.®" 

Offices  may  be  abolished  or  incumbency  changed,"^  but  accrued  salaries  may  not 
be." 

Interests  in  realty. — Homestead  laws  are  prospective  in  their  operation  and  do 
not  affect  vested  rights."'  The  right  of  a  husband  in  his  wife's  realty  is  a  vested 
right.^" 

Taxes  and  public  rights. — A  taxpayer  has  no  vested  rights  in  an  existing  mode 
of  collecting  taxes.'^^  The  New  York  Transfer  Tax  Act  of  1899  is  unconstitutional, 
as  diminishing  value  of  vested  assets  wherein  it  taxes  remainders  and  reversions 
which  had  vested  before  1885,  on  their  coming  into  actual  possession  or  enjo}Tnent.^- 
An  act  retrospectively  making  delinquents  pay  interest  from  the  time  of  the  de- 
linquency is  not  objectionable  to  the  federal  constitution.''*  A  law  is  retrospective 
which  imposes  an  additional  liability  for  accrued  taxes.''* 

Laws  ajfecting  corporations. — A  statutory  right  given  in  the  charter  of  a  cor- 
poration is  not  vested  until  taken  possession  of.''"  By  reorganizing,  a  corporation 
becomes  subject  to  existing  laws  which  were  junior  to  its  original  existence.''"  Per- 
mission given  a  foreign  corporation  to  do  business  on  its  complying  with  the  con- 


es. Stanford  v.  Coram  (Mont.)  72  Pac.  655. 
An  act  made  marriages  valid  between  parties 
against  one  of  whom  an  impediment  exist- 
ed of  which  such  person  was  ignorant  from 
the  time  of  the  removal  of  the  impediment. 
A  later  act  made  this  statute  applicable  to 
impediments  removed  before  its  passage. 
Held,  that  where  the  marriage  was  per- 
formed before  the  passage  of  the  act  and 
the  impediment  was  removed  after  its  pas- 
sage, the  statute  was  not  retrospective  as 
no  vested  rights  had  attached  (St.  1895,  c. 
4960,  amended  by  act  of  1896) — Lufkin  v. 
Lufkin.    182    Mass.    476. 

64.  Mobile  Transp.  Co.  v.  Mobile,  187  U. 
S.    479. 

Go.  Held  in  an  action  construing  the 
laws  1887,  c.  77,  §  1,  providing  that  all  bonds 
issued  by  municipalities  shall  be  redeem- 
able at  pleasure  of  municipal  officers  at  any 
time  after  ten  years — Little  River  Tp.  v. 
Board  of  Com'rs,  65  Kan.  9.  68  Pac.  1105. 

66.  State  V.  Chapman  (N.  J.  Law)  65 
Atl.    94. 

67.  There  Is  no  vested  right  In  an  office 
created  by  the  legislature,  such  as  will 
prevent  an  act  abolishing  the  office — Dallis 
V.  Griffin  (Ga.)  43  S.  E.  758.  An  act  appoint- 
ing members  to  succeed  an  existing  board 
does  not  deprive  incumbents  of  vested 
rights — Sinclair  v.  Young  (Va.)  40  S.  E. 
907.  The  power  of  the  legislature  to  abolish 
the  office  of  chief  of  police,  does  not  affect 
the  right  of  such  officer  to  a  pension  and  he 
may  thereafter  assert  any  vested  rights 
which  he  may  have  in  the  pension  In  a 
proper  proceeding  therefor — People  v.  Coler, 
\73   N.   T.   103. 


68.  Term  had  expired — Young  v.  Roches- 
ter, 73  App.  Div.   (N.  Y.)   81. 

69.  Brown  v.  Hughes  (Minn.)  94  N.  W. 
438;  Bell  v.  Whitehead,  115  Ga.  589.  A 
husband  under  laws  giving  him  the  right 
to  alienate  the  homestead  without  his  wife's 
consent  under  certain  conditions,  acquires 
a  vested  right  of  which  he  may  not  be  de- 
prived by  subsequent  legislation  and  the 
fact  that  the  husband  had  not  exercised  his 
right  will  not  authorize  an  invasion  of  the 
right  by  the  legislature — Gladney  v.  Sydnor, 
172  Mo.   318. 

70.  Rev.  St.  1899,  §  4340,  enabled  her  to 
sue  for  possession — Vanata  v.  Johnson,  170 
Mo.    269. 

71.  League  v.  Texas,  184  U.  S.  156,  46 
U.  S.  Lawy.  Ed.  478. 

72.  In  re  Pell's  Estate,  171  N.  Y.  48.  57 
L.   R.   A.   540. 

73.  League  v.  Texas,  184  U.  S.  156,  46  U.  S 
Lawy.  Ed.  478. 

74.  An  Act  making  railroads  personally 
liable  for  special  assessments  for  which  they 
were  not  so  liable  originally  (Local  Acts. 
Mich.  1895.  Act  No.  443) — Grand  Rapids  v. 
Lake  Shore  &  M.  S.  Ry.  Co.  (Mich.)  89  N. 
W.   932. 

75.  San  Joaquin  &  K.  R.  Canal  &  Irr.  Co. 
V.   Stanislaus  County,   113   Fed.   930. 

76.  The  New  York  Mileage  Book  Act  ap- 
plied to  a  corporation  thereafter  reorganized, 
which  succeeds  a  previous  corporation,  is 
constitutional  notwithstanding  the  previous 
corporation  had  a  right  to  charge  a  speci- 
fied fare — Minor  v.  Erie  R.  Co.,  171  N.  Y. 
566. 


§  15 


DUE  PROCESS. 


591 


ditions  does  not  become  vested  against  other  conditions  in  later  laws.'^^  A  street 
railway  company  acquires  no  vested  rights  in  a  street  preventing  an  alteration  of 
the  grade  of  such  street,  so  as  to  justify  disobedience  of  an  order  requiring  tracks 
to  be  lowered  to  conform  to  the  grade.''*  A  preferred  stockholder  has  no  vested 
right  to  insist  that  the  proportion  of  stock  and  bonds  shall  remain  unchanged  and 
thus  prevent  retirement  of  stock  for  bonds.''® 

Regulation  of  procedure. — No  one  can  gain  a  vested  right  to  any  remedy  which 
would  preclude  legislation  taking  away  the  right  thus  created.*"  This  includes 
rules  of  evidence,*^  but  by  the  operation  of  remedies  or  failure  to  avail  of  them, 
rights  may  become  fixed ;  hence  an  act  must  not  deprive  one  of  rights  acquired  under 
a  judgment  obtained  before  its  passage,*^  nor  extend  time  for  filing  a  bill  of  excep- 
tions after  it  became  too  late  to  do  so.*'  Liens  and  securities  cannot  be  destroyed  by 
repeal  of  a  law  giving  them.**  Eeorganization  not  being  essential  to  operation  of  a 
railroad  by  a  purchaser  at  foreclosure,  its  limitation  does  not  impair  vested  rights  of 
the  bondholders.*^     Curative  acts  may  validate  mere  irregularities.*' 

Statutes  of  limitation  may  be  amended  if  time  be  given  to  enforce  existing 
causes  of  action.*^  An  act  removing  the  bar  of  limitation  has  been  upheld  where 
the  original  time  was  unnecessarily  short.** 

§  15.  Deprivation  without  due  process  of  law  or  contrary  to  law  of  the  land. — 
Due  process  of  law  requires  notice  and  the  right  to  be  heard.**  It  need  not  take  the 
form  of  a  judicial  determination  by  a  court.*"  A  law  prescribing  statutory  arbitra- 
tion and  sale  to  enforce  its  award  is  sufficient  f^  otherwise  where  sale  is  had  without 
judicial  proceedings.*-  Proceedings  of  societies  for  the  discipline  of  members  may 
be  due  process,  though  its  efi^ect  may  be  to  forfeit  property  rights.*^ 

Actual  notice  may  supply  the  failure  of  a  statute  to  provide  for  notice.** 

Use  and  enjoyment  of  property. — There  must  be  a  valid  subject  of  property 
rights,*^  and  not  a  mere  privilege.*'     The  right  must  have  matured  to  receive  pro- 


77.  Adams  Exp.  Co.  v.  State  (Ind.)  67  N. 
B.    1033. 

78.  Snouffer  v.  Cedar  Rapids  &  M.  City 
Ry.  Co.  (Iowa)  92  N.  W.  79. 

79.  Act  March  28,  1902 — Berger  v.  Unit- 
ed States  Steel  Corp.,  63  N.  J.  Eq.  809. 

80.  Bullard  v.  Smith  (Mont.)  72  Pac.  761. 
Gen.  Laws  Tex.  1901,  p.  122,  c.  54,  authorizes 
dismissal  of  a  cause  from  the  docket  of  the 
trial  court  for  reversal  when  the  mandate 
is  not  taken  out,  and  that  In  any  cause  which 
has  been  reversed  or  remanded  the  mandate 
shall  be  taken  out  within  twelve  months 
after  the  passage  of  the  act.  Before  the  act 
took  effect  judgment  against  plaintiff  was 
on  his  appeal  reversed  and  remanded  with 
costs  and  a  year  after  the  act  took  effect 
plaintiff  paid  the  costs  and  procured  a  re- 
mand whereupon  the  action  was  dismissed. 
Held  that  the  statute  deprived  him  of  no 
vested  right — Watson  v.  Boswell  (Tex.  Civ. 
App.)  73  S.  "W.  985.  There  is  no  constitu- 
tional obstacle  to  the  enactment  of  a  law 
allowing  negotiable  instruments  to  contain 
the  provision  for  a  reasonable  attorney's 
fee,  the  act  affecting  remedy  only — Bullard 
V.   Smith   (Mont.)    72  Pac.   761. 

61.  A  statute  making  church  and  parish 
records  of  birth  prima  facie  evidence  in  pro- 
ceedings to  determine  the  question  of  heir- 
ship does  not  impair  vested  rights  (Rev.  St. 
1898,  §  4160) — Sandberg  v.  State,  113  Wis. 
678. 

83.  Village  of  New  Holland  v.  Holland, 
99  111.  App.  251.  Alimony  decree — Goodsell 
v.   Goodsell,   82   App.   Div.    (N.   Y.)    65. 


83.  Johnson  v.  Gebhauer,   159  Ind.   271. 

84.  Preferred  lien  on  the  road  bed  of  a 
railroad — State  Trust  Co.  v.  Kansas  City,  P. 
&  G.  R.  Co.,  115  Fed.   367. 

85.  Commissioner  of  Railroads  v.  Grand 
Rapids   &  I.   Ry.   Co.   (Mich.)    89  N.  W.   967. 

86.  Private  sales  of  decedent's  real  prop- 
erty for  payment  of  debts — Kiskaddon  v. 
Dodds,    21   Pa.   Super.   Ct.   351. 

87.  On  foreclosure  of  mortgages  after 
notes  barred — Rev.  St.  Mo.  1899,  §  4277— 
Kreyllng  v.  O'Reilly,   97  Mo.  App.   384. 

88.  Dunbar  v.  Boston  &  P.  R.  Corp.,  181 
Mass.   383. 

89.  Stone  v.  Little  Tellow  Drainage  Dist. 
(Wis.)  95  N.  W.  405.  Notice  not  prescribed 
in  proceeding  to  construct  ditch  at  expense 
of  delinquent  railroad  (Rev.  St.  §§  3343-3346) 
— Chicago  &  E.  R.  Co.  v.  Keith,  67  Ohio  St. 
279. 

90.  Action  of  medical  board — Meffert  v. 
State  Board  of  Medical  Registration  &  Ex- 
amination  (Kan.)   72  Pac.  247. 

91.  To  fix  damage  by  live  stock — Randall 
V.  Gross   (Neb.)   93  N.  W.  223. 

92.  Sale  by  pound-master  (Laws  of  Ariz. 
1893,  p.  32) — Greer  v.  Downey  (Ariz.)  71 
Pac.   900. 

93.  Moore  v.  National  Council  of  Knights 
&  Ladies  of  Security,  65  Kan.  452,  70  Pac. 
352. 

94.  Detroit,  Ft.  W.  &  B.  L  Ry.  v.  Osborn. 
189  U.   S.  383. 

95.  Destruction  of  gambling  devices  un- 
der Sand.  &  H.  Dig.  §  1618  valid — Garland 
Novelty  Co.  v.  State  (Ark.)   71  S.  W.  257, 


593 


CONSTITUTIONAL  LAW. 


§   15 


tection,'^  a  mere  proceeding  on  a  claim  being  insufficient.^'  An  alimony  decree  is 
property,"  and  there  is  a  deprivation  by  the  law  authorizing  variance  or  modifica- 
tion of  a  decree  which  had  already  become  absolute.^  An  incumbent  public  servant's 
expectation  of  a  pension  is  not  such  a  property  right.^  The  regular  action  of  a  ma- 
jority does  not  impair  any  property  rights  of  dissenting  minority  stockholders.^ 
Fiaws  forbidding  the  collection  of  tolls,  unless  a  turnpike  road  is  kept  up,  do  not 
take,  but  merely  limit,  a  right."  Laws  compelling  the  free  transportation  of  police- 
men,'* allowing  killing  of  animals  found  to  be  unfit  for  use,^  or  giving  materialmen 
and  laborers  a  right  to  enforce  payment  in  money  from  the  owner,  irrespective  of  the 
contract  price,^  must  satisfy  this  clause.  Laws  requiring  forfeiture  of  unclaimed 
witness  fees  to  the  school  fund  are  held  to  simply  impose  the  duty  of  claiming  fees 
promptly.*  Laws  against  fraud  or  adulteration  in  commodities,®  or  fraudulent  con- 
veyances, are  upheld."  Eailroad  companies  are  not  deprived  of  their  property  by 
laws  for  the  opening  of  highways  across  their  rights  of  way,^^  or  compelling  them  to 
keep  their  rights  of  way  clear.^^  Laws  restricting  the  height  of  buildings  to  be 
erected  on  certain  streets  of  a  city  and  fixing  liability  on  the  municipality  are  valid, 
though  the  latter  was  not  heard. ^^  A  city  cannot,  in  the  exercise  of  its  governmental 
functions,  refuse  to  perform  a  contract  made  in  a  quasi  private  or  business 
capacity.^*  An  act  allowing  children  living  without  the  suburbs  of  a  city  to  attend 
its  schools  free  of  tuition  is  not  objectionable  as  depriving  the  school  organization 
of  property  without  due  process  of  the  law.^'^ 

Regulations  of  business  and  occupations. — Labor  is  property  in  this  sense. ^® 
The  right  to  contract  respecting  labor  is  also  protected,"  and  the  right  to  choose  an 


90.  Liquor  tax  certificate  In  New  York 
luder  present  law  is  property — In  re  Cul- 
Unan,  115  N.  T.  St.  Rep.   567. 

97.  Franchise  for  street  railroad  lacked 
confirmation  by  city — Underground  Ry.  of 
.New  York  v.  City  of  New  York,  116  Fed. 
352.  Contestant  of  an  entry  of  government 
lands  has  no  property  interest  therein  to 
be  affected,  by  an  act  confirming  the  title  of 
the  original  entryman  enacted  during  the 
pendency  of  the  contest — Emblen  v.  Lincoln 
Land  Co.,  184  U.  S.  660,  46  Law.  Ed.  736. 

98.  Attaching  creditors  with  knowledge 
')f  prior  mortgage,  acquire  no  property  rights 
— McFaddin  v.  Evans-Snider-Buel  Co.,  185 
U.    S.    505,    46   Law.    Ed.    1012. 

99.  Gundry  v.  Gundry,  11  Okl.  423,  68  Pac. 
509;  Livingston  v.  Livingston,  173  N.  Y. 
377. 

1.  T>i\^inci:ston  v.  Livingston,  74  App.  Div. 
(N.   Y.)    261. 

a.  Office  was  abolished — People  v.  Coler, 
71    App.   Div.    (N.   Y.)    584. 

3.  Dickinson  v.  Consolidated  Traction  Co., 
114  Fed.  232.  To  same  affect  C.  H.  Venner 
Co.  V.  United  States  Steel  Corp.,  116  Fed. 
1012. 

4.  Back  River  Neck  Turnpike  Co.  v.  Hom- 
berg,   96  Md.   430. 

3.  Laws  1895,  c.  417 — Wilson  v.  United 
Traction  Co.,  72  App.  Div.   (N.   Y.)    233. 

6.  Carter  v.  Colby,   71  N.  H.   230. 

7.  Stimson  Mill  Co.  v.  Braun,  136  Cal. 
122,    68    Pac.    481,    57   L.    R.    A.   726. 

8.  Douglas  County  v.  Moores  (Neb.)  92 
N.    W.   199. 

9.  "Imitation"  butter,  and  "colored"  oleo- 
margarine (Public  Acts  1901,  No.  22) — Peo- 
ple v.  Rotter   (Mich.)   91  N.  W.  167. 

10.  Laws  making  sales  of  merchandise 
stocks  in  bulk  otherwise  than  In  the  ordinary 


course  of  trade,  fraudulent  unless  the  parties 
make  an  inventory  and  the  purchaser  makes 
inquiry  as  to  creditors — Neas  v.  Borches 
(Tenn.)  71  S.  W.  50.  The  Washington  act 
requires  a  purchaser  to  require  a  verified 
list  of  creditors  and  making  the  sale  without 
it  fraudulent,  unless  the  purchaser  applies 
the  purchase  money  to  the  payment  of  bona 
fide  debts — McDaniels  v.  J.  J.  Connelly  Shoe 
Co.,    30  Wash.   549,    71   Pac.    37. 

11.  Baltimore  &  O.  S.  W.  R.  Co.  v.  State. 
159  Ind.  510.  Code  1892,  §  3555 — Illinois 
Cent.  R.  Co.  v.  Copiah  County  (Miss.)  33  So. 
502.  Act  authorizing  the  construction  by 
a  town  or  person  entitled  at  the  com- 
pany's expense  held  valid  (Vt.  St.  §§  3844, 
3846) — Town  of  Clarendon  v.  Rutland  R.  Co.. 
75   Vt.    6. 

12.  McFarland  v.  Mississippi  River  &  B. 
T.   Ry.  Co.    (Mo.)    75   S.  W.   152. 

13.  State  has  power  to  make  city  liable — 
Williams  v.  Parker,  188  U.  S.   491. 

14.  Riverside  &  A.  Ry.  Co.  v.  City  of 
Riverside,   118   Fed.  736. 

15.  Edmondson  v.  Board  of  Education. 
108  Tenn.  557. 

16.  Mathews  v.  People,  202  111.  389;  Street 
v.  Varney  Electrical  Supply  Co.  (Ind.)  66  N. 
E.    895. 

17.  Burns'  Rev.  St.  1901,  §§  7055a,  7055b 
fixing  a  minimum  wage  law  on  public  works 
held  invalid — Street  v.  Varney  Electrical 
Supply  Co.  (Ind.)  66  N.  E.  895.  Weekly  pay- 
ment law  held  invalid  (Republic  Iron  & 
Steel  Co.  V.  State  [Ind.]  66  N.  E.  1005);  but 
not  laws  declaring  agreements  relieving  an 
employer  from  the  operation  of  the  weekly 
payment  law — International  Text  Book  Co. 
V.  Weissinger  (Ind.)  65  N.  E.  521.  Act  cre- 
ating a  free  employment  bureau  which  wa.« 
not  to  give  names  to  employers  whose  men 


DUE  PROCESS. 


593 


occupation  is  a  liberty  subject  to  the  police  power.^^  There  is  a  deprivation  by  laws 
and  ordinances  making  rates  chargeable  by  public  corporations  unreasonably  low.^" 
Laws  against  meter  rents  by  gas  companies  are  valid.^°  Inspection/^  quarantine,-- 
medical  registration  laws,^^  and  license  laws/*  are  valid;  but  the  contrary  was  held 
of  a  law  requiring  a  fee  for  sending  a  commodity  out  of  the  state.^'*  Foreign  cor- 
porations may  be  denied  resort  to  courts  for  noncompliance  with  the  laws.^' 

Sunday  laws  do  not  operate  to  deprive  persons  of  life,  liberty  or  property, 
without  due  process.^^ 

Statutes  creating  a  liahility  may  he  validj^^  unless  unreasonable  or  unconscion- 
able.^® Eequiring  a  carrier  to  locate  a  connecting  carrier,  which  is  responsible  foi- 
loss,  does  not  take  its  property  unduly.'" 

Eminent  domain  proceedings.^^ — A  taking  without  giving  compensation  is  a 
taking  of  property  without  due  process  of  law.^^  Conferring  on  a  telegraph  com- 
pany the  right  to  condemn  a  way  on  a  railroad  right  of  way  may  be  upheld."  A 
special  tribunal  to  pass  on  necessity  of  the  taking  is  not  required.'* 

Local  improvements. — Due  process  is  satisfied  by  allowing  assessment  of  lands 
benefited  by  a  public  improvement'^  on  notice,  giving  the  property  owner  an  oppor- 
tunity to  be  heard  on  the  question  of  the  amount  apportioned  to  his  property.'^     It 


were   striking    is    void — Mathews   v.    People, 
202  111.   389. 

18.  Acts  limiting  hours  of  employment  of 
working-men  sustained — People  v.  Lochner, 
73  App.  Div.  (N.  Y.)  120;  State  v.  Buchanan, 
29  Wash.   602,  70  Pac.   52,   59  L.   R.  A.   342. 

Void  acts;  forbidding  pensioners  to  hold 
office — People  v.  Woodbury,  38  Misc.  (N.  T.) 
189.  Act  regulating  the  appointment  of 
branch  pilots  (Rev.  St.  1895,  art.  3796)  — 
Olsen  V.  Smith  (Tex.  Civ.  App.)  68  S.  W. 
320.  Laws  making  it  a  misdemeanor  to 
offer  for  sale  without  written  authority — 
Grossman  v.  Caminez,  79  App.  Div.  (N.  Y.) 
15. 

19.  Water  rates — Cedar  Rapids  Water  Co. 
V.  Cedar  Rapids,  117  Iowa,  250.  Carriers — 
Wallace  v.  Arkansas  Cent.  R.  Co.  (C.  C.  A.) 
118  Fed.  422.  Water  company  subject  to 
reasonable  regulation  of  rates — Tampa  v. 
Tampa  Water  Works  Co.  (Fla.)  34  So.  631. 
A  fixing  of  rates  for  carrying  hard  coal  held 
not  void — Minneapolis  &  St.  L.  R.  Co.  v. 
Minnesota,  186  U.  S.  257,  46  Law.  Ed.  1151. 

20.  Buffalo  v.  Buffalo  Gas  Co.,  81  App. 
Div.   (N.  Y.)   505. 

21.  Elevators — New  Orleans  v.  Kee,  107 
La,    762.      Laundries — Id. 

22.  Compagnie  Francaise  De  Navigation 
A  Vapeur  v.  Louisiana  State  Board  of  Health, 
186  U.  S.  380,  46  Law.  Ed.  1209. 

23.  Reetz  v.  Michigan,  188  U.  S.  505.  The 
due  process  provision  is  not  violated  by  a 
failure  of  the  medical  registration  act  to 
provide  in  terms  for  review  of  proceedings 
on  the  question  whether  the  applicant  had 
l>een  legally  registered  under  a  prior  stat- 
ute— Id. 

24.  Requiring  sellers  of  meats  in  public 
markets  to  take  license — Buffalo  v.  Hill,  79 
App.  Div.  (N.  Y.)  402. 

25.  Exacting  a  license  and  requiring  pay- 
ment of  a  certain  amount  a  ton  for  Ice  taken 
from  lakes  owned  by  the  state  for  ship- 
ment without  the  state — Rossmiller  v.  State, 
114  Wis.    169. 

26.  Filing  of  certificates — Keystone  Drill- 
er Co.  V.  Superior  Ct.,  138  Cal.  738,  72  Pac. 
398. 


27.  Barbers — State  v.  Sopher,  25  Utah, 
318,  71  Pac.  482,  60  L.  R.  A.  468.  (Sess.  Laws 
1901,  p.  17) — Ex  parte  Northrup,  41  Or.  489, 
69  Pac.  445.  Closing  stores  except  drug 
stores  and  livery  stables  and  hotels — State 
V.  Nichols,  28  Wash.  628,  69  Pac.  372. 

28.  Penalty  for  failure  to  pay  an  insur- 
ance loss  within  a  specified  time — New  York 
Life  Ins.  Co.  v.  English  (Tex.  Civ.  App.)  70 
S.  W.  440.  Making  a  married  woman's  prop- 
erty liable  for  family  necessaries,  after  exe- 
cution against  husband  (Comp.  St.  c.  53,  §  1) 
— Noreen  v.  Hansen  (Neb.)  90  N.  W.  937. 
Acts  making  directors  of  corporations  liable 
— Winchester  v.  Howard,  136  Cal.  432.  64 
Pac.  692,  69  Pac.  77.  Making  a  railroad  com- 
pany liable  for  injuries  to  a  passenger,  un- 
less the  injury  arise  from  the  criminal  negli- 
gence of  the  injured  party  or  by  his  violation 
of  the  carrier's  rules  brouglit  to  his  notice- — 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Hambel  (Neb.) 
89  N.  W.  643.  Requiring  street  railways 
to  pay  one-half  the  expense  of  safety  appli- 
ances at  grade  crossings  of  railroad  which 
was  built  after  street  railway  (Pub.  Act 
Mich.  1893.  No.  171,  §  15) — Detroit,  Ft.  W.  & 
B.   I.   Ry.  V.   Osborn,   1S9  U.   S.   3Sn. 

29.  Making  purchaser  liable  to  lien 
claimant  for  more  than  value  of  property 
(Rev.  St.  1898,  §  3336)) — Rogers-Ruger  Co.  v. 
Murray,  115  Wis.   267,  59  L.  R.  A.  737. 

30.  Civ.  Code,  §§  2317,  2318 — Central  of 
Georgia  Ry.  Co.  v.  Murphey,  116  Ga.  863. 

31.  See  the  following  section  as  to  the 
clause  against  taking  witlaout  compensa- 
tion. 

32.  Telegraph  right  of  way — Phillips  v. 
Postal   Tel.    Cable   Co.,    130   N.   C.    513. 

33.  Savannah,  F.  &  W.  Ry.  Co.  v.  Postal 
Tel.  Cable  Co.,  115  Ga.  554;  South  Carolina 
&  G.  R.  Co.  V.  American  Telephone  «&  Tele- 
graph Co.,   65  S.  C.   459. 

34.  Savannah,  F.  &  W.  Ry.  Co.  v.  Postal 
Tel.    Cable    Co.,    115   Ga.    554. 

35.  Voigt  V.  Detroit  City,  184  U.  S.  115, 
46    Law.    Ed.    459. 

36.  Voigt  V.  Detroit  City,  184  U.  S.  115, 
46  Law.  Ed.  459;  Kansas  City  v.  Mastin,  169 
Mo.  80.     Irrigation  laws  are  sufficient  which 


Cur.  Law — 38. 


594 


CONSTITUTIONAL  LAW. 


§  15 


is  not  necessary  to  give  opportunity  also  to  be  heard  against  issuance  of  bonds.'^ 
The  exaction  of  an  excessive  assessments^  or  the  requirement  of  written  objections 
which  shall  be  final"  are  offensive  to  this  clause.  The  front  foot  rule  of  assessment 
does  not  deny  due  process.*" 

Drainage  acts  satisfy  the  requirement  of  due  process,  where  the  property  owner 
is  given  a  day  in  court  before  his  property  is  taken  into  the  district,*^  or  the  assess- 
Tuent  for  benefits  become  final,*^  nor  is  there  a  denial  of  due  process  by  an  act  allow- 
ing a  deficiency  assessment  without  notice,  where  landowner  had  notice  of  the  original 
assessment."  They  are  sufficient  where  omission  as  to  procedure  for  confirmation  is 
provided  under  another  provision  of  the  code.**  Such  laws  do  not  deprive  land- 
owners of  property  without  due  process  by  the  fact  that  they  authorize  the  issuance  of 
interest-bearing  bonds  to  defray  costs  of  the  improvement  and  divide  the  same  into 
a?  many  parts  as  the  bonds  have  years  to  run.*"* 

Taxation. — Proceedings  to  levy  and  assess  taxes  do  not  require  a  notice  and 
1  tearing  like  litigated  proceedings.*'  Due  process  in  sales  of  land  for  unpaid  taxes 
I  !oes  not  require  that  the  same  should  be  matter  of  record.*^  In  the  note  are  various 
acts  which  have  been  upheld  as  affording  due  process  in  proceedings  to  sell  for 
taxes.*'     It  is  lacking  where  foreign  property  is  assessed.*" 


provide  the  means  by  which  benefits  re- 
ceived may  be  adjudicated — Pioneer  Irr. 
Dist.  V.  Bradbury  (Idaho)  68  Pac.  295.  Ob- 
jection of  want  of  notice  can  only  be  made 
by  parties  whose  property  has  been  taken 
— Goodrich  v.  Detroit,  184  U.  S.  432,  46  Law. 
Ed.    627. 

37.  German  Sav.  &  Loan  Soc.  v.  Ramlsh, 
1H8  Cal.  120.  69  Pac.  89,  70  Pac.  1067. 

38.  Klein  v.  Nugent  Gravel  Co.  (Ind.  App.) 
66    N.    E.    486. 

39.  Barber  Asphalt  Pav.  Co.  v.  Ridge,  169 
Mo.    376. 

40.  Franklin  v.  Hancock.  204  Pa.  110; 
Schaefer  v.  Werling,  188  U.  S.  516.  There  Is 
a  deprivation  without  due  process  by  an  act 
empowering  a  city  to  collect  sums  assessed 
against  lots  abutting  on  streets  through 
which  water  pipes  pass,  and  which  makes  no 
provision  for  fixing  the  amount  of  the  as- 
sessment either  as  to  cost  or  benefits  to 
property  owners,  or  for  just  apportionment 
of  the  cost  among  the  interested  land  owners, 
or  for  notice  to  them  giving  them  an  op- 
portunity to  be  heard  on  the  question  of  the 
reasonableness  or  justness  of  the  assess- 
ment— City  Council  of  Augusta  v.  King,  115 
Ga.  464. 

41.  Rev.  St.  1899,  §  8251 — Mound  City  Land 
&  Stock  Co.  V.  Miller,  170  Mo.  240.  60  L.  R. 
A.  190.  There  is  due  process  where,  before 
the  rendition  of  a  decree  creating  a  drainage 
district,  property  owners  all  receive  notice 
of  the  proceeding  and  have  a  trial  of  the 
question  whether  a  public  purpose  would  be 
subserved  by  the  drainage  and  whether  the 
property  owner's  land  would  be  benefited 
thereby,  and  whether  the  benefits  to  the  dis- 
trict in  Its  entirety  would  exceed  the  cost  and 
the  proportion  of  cost  which  ought  to  fall 
on  the  landowner's  property  considered  rela- 
tively to  all  other  lands  in  the  district,  and 
an  opportunity  Is  given  for  appeal  to  the 
highest  courts  of  the  state — Stone  v.  Little 
Yellow  Drainage  Dist.  (Wis.)  95  N.  "W.  405. 
A  drainage  law  does  not  authorize  taking 
without  due  process  of  law,  by  failure  to 
provide  for  giving  of  notice  of  the  assess- 
ment,  where   it   provides    for   notice    on    the 


hearing  determining  the  boundaries  of  the 
district — Oliver  v.  Monona  County,  117  Iowa, 
43. 

42.  Erickson  v.  Cass  County,  11  N.  D.  494. 

43.  Stone  v.  Little  Yellow  Drainage  Dist. 
(Wis.)   95  N.  W.  405. 

44.  State  V.  Henry,  28  Wash.  38,  68  Pac. 
368. 

45.  Rev.  Codes,  §  1474 — Erickson  v.  Cass 
County,    11   N.   D.    494. 

46.  The  due  process  provision  of  the  fed- 
eral constitution  does  not  apply  to  tax  pro- 
ceeding cases — German  Sav.  &  Loan  Soc.  v. 
Ramish,  138  Cal.  120,  69  Pac.  89,  70  Pac.  1067. 
Law  requiring  the  assessment  to  the  trus- 
tee, of  personal  property  held  in  trust,  and 
requiring  the  assessors  to  give  public  notice 
to  taxpayers  to  return  personal  property 
lists,  and  on  failure  to  make  such  return, 
giving  the  assessor  power  to  estimate  the 
value — Glidden  v.  Harrington,  189  U.  S.  255. 
Special  franchise  act  authorizing  the  assess- 
ment or  valuation  for  general  taxes  of  all 
special  franchises  by  a  state  board  of  tax 
commissioners  appointed  by  the  governor — 
People  v.  State  Board  of  Tax  Com'rs,  174  N. 
Y.  417.  Law  making  the  valuation  of  cor- 
porate stock  by  a  tax  commissioner  final, 
unless  appealed  from  within  a  given  time 
but  failing  to  provide  for  the  giving  of  no- 
tice to  the  owner,  does  not  deprive  the  cor- 
poration of  property  without  due  process 
as  the  corporation  represents  the  stock- 
holders and  has  a  right  to  appeal,  if  the 
valuation  is  unsatisfactory — Corry  v.  City 
Council  of  Baltimore,  96  Md.  310. 

47.  Turpin   v.    Lemon,    187    U.    S.    51. 

48.  Provision  against  setting  aside  sales 
of  property  for  taxes  except  in  case  of 
double  assessments  or  previous  payment  of 
taxes,  unless  the  proceeding  is  commenced 
within  a  limited  time  (Const.  La.  art.  233) — 
Ashley  Co.  v.  Bradford,  109  La.  641.  Act 
authorizing  foreclosure  of  tax  liens  by  pro- 
ceedings in  rem  to  which  the  land  alone  is 
a  party,  the  owner  being  unknown,  and  pro- 
viding that  the  sale  shall  cut  off  pre-existing 
rights  or  liens — Leigh  v.  Green  (Neb.)  90  N. 
W.    255.      A    claimant    of   land   sold    for   non- 


§  IS 


DUE  PROCESS. 


595 


Civil  remedies  and  proceedings. — There  is  a  deprivation  by  service  on  agents  of 
nonresidents  in  actions  in  personam,^"  but  debts  may  be  attached  against  a  nonresi- 
dent where  the  garnishee  debtor  resides,^^  and  service  by  publication  on  a  nonresident 
defendant  is  sufficient  in  a  suit  to  quiet  title  to  personal  property  situated  within  the 
state.^*  Notice  to  insane  persons  cannot  be  dispensed  with."*^  Short  notice  is  suffi- 
cient if  a  right  to  open  the  decree  is  reserved/* 

Statutes  of  limitation  are  not  open  to  the  objection  that  they  deprive  the  owner 
of  his  property  without  due  process  of  law.''* 

Amendments  may  be  allowed  by  consent  of  counsel/*  in  proceedings  changed 
during  pendency  of  an  action  to  make  them  conform  to  an  amended  statute."*^ 

The  clause  may  be  violated  by  laws  affixing  conclusiveness  to  certain  docu- 
ments.^^ It  is  not  permissible  to  make  a  license  certificate  revocable  summarily  un- 
less the  holder  shall,  in  a  revocation  proceeding,  deny  all  violations  of  the  liquor  law 
under  oath.** 

An  act  authorizing  contribution,  where  one  of  two  judgment  debtors  pays  more 
than  his  share  may  be  upheld  though  it  does  not  provide  for  an  adjudication  of  rela- 
tive equities.*"  Attorney's  fees  may  be  allowed  in  an  action  for  reimbursement  for 
building  fences  required  by  law.*^ 

The  omission  to  provide  in  the  bankruptcy  act  for  personal  service  on  creditors 
of  notice  of  application  for  discharge  in  voluntary  proceedings  is  not  objectionable  ;*- 
nor  is  the  failure  to  provide  for  notice  of  the  filing  of  petition  in  voluntary  proceed- 
ings, as  the  act  provides  for  ten  days'  notice  of  the  first  meeting  of  creditors  and 
of  each  of  the  later  steps  of  the  administration,  and  for  revocation  of  a  discharge 
where  procured  by  fraud.*^ 

Due  process  is  preserved  in  contempt  proceedings  where  accused  appears  and 
trial  is  had.**  The  clause  is  violated  by  orders  denying  defenses  and  evidence  for 
contempt  of  party.*°     An  order  to  show  cause  cannot  be  served  on  attorney.*'     Laws 


payment  of  taxes  is  not  deprived  of  his 
property  without  due  process  by  Judicial  pro- 
ceedings to  collect  the  delinquent  taxes,  un- 
der a  statute  subsequently  enacted,  though 
the  expenses  attending  the  proceeding  are 
chargeable  as  costs  contrary  to  the  earlier 
statute — League  v.  Texas,  184  U.  S.  156,  46 
Law.  Ed.  478.  Washington  irrigation  laws 
making  irrigation  bonds  a  lien,  and  provid- 
ing that  lands  may  be  taxed  therefor  and 
sold  for  non-payment,  and  authorizing  the 
special  proceeding  to  pass  upon  the  validity 
of  the  bends  on  publication  of  notice  of  the 
hearing  of  the  petition,  does  not  amount  to 
taking  of  property  without  due  process  be- 
cause authorizing  taxation  and  sale  without 
personal  notice — Kinkade  v.  Witherop,  29 
TVash.   10,   69   Pac.  399. 

49.  Assessment  of  an  interstate  bridge  in- 
cluding franchises  derived  from  a  sister  state 
— Louisville  &  J.  Ferry  Co.  v.  Kentucky,  188 
U.    S.    385. 

50.  Moredock  v.  Kirby,  118  Fed.  180. 
Laws  Minn.  1901,  c.  278 — Cabanne  v.  Graf, 
87  Minn.  510;  Kemper-Thomas  Paper  Co.  v. 
Shyer,    108    Tenn.    444. 

51.  Rothschild  v.  Knight,  184  U.  S.  334, 
46  Law.   Ed.   573. 

52.  People's  Nat.  Bank  v.  Cleveland  (Ga.) 
44    S.    B.    20. 

53.  Hunt  V.  Searcy,  167  Mo.  158. 

.%4.  Ten  days  notice  of  probate  is  enough 
where  a  party  interested  is  given  a  year  in 
which  to  attack  it — In  re  Davis'  Estate,  136 
Cal.    590,    69    Pac.    412. 


55.  Linton  v.  Heye  (Neb.)  95  N.  W.  1040; 
St.  Mary's  Power  Co.  v.  Chandler-Dunbar 
Water  Power  Co.  (Mich.)  95  N.  W.  554. 
An  act  making  probate  in  common  form 
conclusive  after  seven  years  except  in  case 
of  minors  who  are  given  four  years  after 
reaching  majority  valid — Sutton  v.  Hancock 
(Ga.)   45  S.  E.  504. 

56.  Rothschild  v.  Knight,  184  U.  S.  334, 
46  Law.  Ed.  573. 

57.  O'Brien  v.  Flint,  74  Conn.  502. 

58.  Specification  of  weights  in  bills  of 
lading  (Laws  1893,  c.  100) — Missouri,  K.  & 
T.  Ry.  Co.  V.  Simonson,  64  Kan.  802,  68  Pac. 
653,  67  L.  R.  A.  765.  Surveys  and  findings 
of  canal  commissioners  evidence  of  owner- 
ship of  state  or  canal  lands — State  v.  Cin- 
cinnati Tin  &  Japan  Co.,  66  Ohio  St.  182. 
Comp.  Laws,  §  10203,  prescribing  what  shall 
be  a  prima  facie  case  in  creditors'  suits, 
merely  creates  a  rule  of  evidence  and  is  not 
a  taking  of  property  without  due  process  of 
law — Crane  v.  Waldron  (Mich.)   94  N.  W.  593. 

59.  In  re  Cullinan,   115  N.  Y.  St.  Rep.  567. 

60.  Code  Civ.  Proc.  §  480 — City  of  Ft. 
Scott  V.  Kansas  City,  Ft.  S.  &  M.  R.  Co. 
(Kan.)    72   Pac.    238. 

61.  Terre  Haute  &  L.  Ry.  Co.  v,  Salmon 
(Ind.)    67   N.    E.    918. 

62.  63.  Hanover  Nat.  Bank  v.  Moyses,  186 
U.   S.   181,   46  Law.  Ed.   1113. 

64.  State   V.   Shepherd   (Mo.)    76  S.  W.   79. 

65.  Harley  v.  Montana  Ore  Purchasing 
Co.,  27  Mont.  388,  71  Pac.  407;  Sibley  v.  Sib- 
ley. 76  App.  Dlv.  132,  12  N.  Y.  Ann.  Cas.  135. 


5% 


CONSTITUTIONAL  LAW. 


§   16 


allowing  a  probate  judge  to  let  a  contract  for  opening  a  ditch  on  failure  of  a  rail- 
road company  to  do  the  work,  after  notice  by  the  landowner,  amount  to  the  taking  of 
private  property  for  private  purposes  without  due  course  of  law." 

Criminal  offenses  and  procedure. — Penal  laws  which  have  been  held  valid  are 
shown  below.** 

A  commitment  by  an  inferior  court  on  evidence  of  probable  guilt  is  not  a  depri- 
vation of  liberty  without  due  process,^**  and  a  like  construction  applies  to  laws  allow- 
ing a  trial  by  a  jury  of  five.^"  That  a  juror  on  the  trial  of  one  convicted  of  murder 
had  himself  been  found  guilty  of  a  felony,  though  ground  for  a  challenge  is  not  a 
denial  of  due  process."  The  compulsory  physical  examination  of  one  accused  of  a 
crime,  to  determine  whether  he  is  affected  with  a  disease  as  testified  to,  violates  the 
provision."  Eepresentation  of  a  prosecutor  by  other  counsel  on  the  trial  with  court's 
consent  does  not  amount  to  a  denial  of  due  process."  There  is  no  infringement  of 
the  due  process  clause  by  the  refusal  of  the  state  court  on  motion  for  a  new  trial  to 
review  the  question  whether  the  officers  in  charge  of  the  jury  on  a  trial  for  felony  have 
taken  the  statutory  oath.''* 

The  good  faith  of  prosecuting  witnesses  cannot  be  determined  in  the  trial  of 
defendnnt  for  the  purpose  of  fixing  costs,  unless  there  is  an  appeal  given." 

The  indeterminate  sentence  law  is  not  open  to  the  objection  by  the  fact  that  it  in 
a  degree  confers  judicial  powers  on  nonjudicial  officers  and  invests  them  with  some 
of  the  pardoning  power  belonging  to  the  executive.^' 

§  16.  Compensation  for  talking  of  property. — The  power  of  eminent  domain 
may  be  delegated  to  municipalities^^  and  private  corporations.'^*  The  constitutional 
provision  does  not  prevent  a  railroad  from  acqiiiring  an  easement  in  right  of  way 
by  adverse  possession.'^'  The  use  must  be  public.*"  Particular  laws  are  passed  on  by 
the  cases  shown  below.*^ 

Liability  to  make  just  compensation  is  not  prevented  by  the  fact  that  the  land 
was  taken  by  the  United  States  in  exercise  of  the  power  to  improve  navigation. *- 


e<t.  Alimony  proceeding — Goldie  v.  Goldie, 
77  App.  Div.   12,   12  N.   Y.  Ann.  Cas.   175. 

67.  Chicago  &  E.  R.  Co.  v.  Keith,  67  Ohio 
St.    279.   60  L.   R.   A.   525. 

68.  An  act  making  it  a  felony  for  build- 
ing and  loan  associations  to  accept  dues 
after  knowledge  of  insolvency  does  not  de- 
stroy the  rights  of  others  to  insist  that 
borrowers  shall  pay  their  loans — State  v. 
Missouri  Guarantee  Sav.  &  Bldg.  Ass'n,  167 
Mo.  489.  Act  establishing  a  park  and  pro- 
hibiting hunting  therein — Commonwealth  v. 
Hazen,  20  Pa.  Super.  Ct.  487.  Nor  by  laws 
making  it  an  offense  to  sell  Intoxicating 
liquor  in  a  prohibition  district  (Rev.  St. 
1895.  tit.  69,  arts.  3384,  3399;  Pen.  Code,  art. 
402) — Rippey  v.  State  (Tex.  Cr.  App.)  73 
S.   W.    15. 

69.  Parks  v.   Nelms.   115  Ga,   242. 

70.  Welborne  v.  Donaldson,  115  Ga.  563. 

71.  Queenan  v.  Territory,  11  Okl.  261,  71 
Pac.   218. 

72.  State  v.  Height,  117  Iowa.  650,  59  L. 
R.    A.    437. 

73.  State   v.   Conly.   130  N.  C.    683. 

74.  Dreyer  v.  Illinois.   187  U.  S.  71. 

75.  Rickley  v.   State   (Neb.)    91  N.  W.   867. 

76.  Dreyer  v.  Illinois.    187   U.  S.    71. 

77.  State  V.   District  Ct..  87  Minn.   146. 

78.  Street  railway  companies — Adee  v. 
Nassau  Elec.  R.  Co.,  72  App.  Div.  (N.  T.)  404. 
Under  a  constitution  allowing  the  exercise 
of    eminent    domain    only    by    domestic    cor- 


poration, a  foreign  corporation  complying 
with  laws  requiring  the  filing  of  copies  of 
articles  of  incorporation,  becomes  a  domestic 
corporation  notwithstanding  a  provision  in 
this  act  that  process  shall  be  served  on  such 
corporations  in  the  same  manner  as  process 
is  served  on  agents  of  domestic  corpora- 
tions— Russell  V.  St.  Louis  S.  W.  Ry.  Co. 
(Ark.)    75   S.  W.   725. 

79.  Boyce  v.  Missouri  Pac.  R.  Co..  168 
Mo.    583. 

80.  Opening  a  private  ditch  is  a  private 
purpose — Chicago  &  E.  R.  Co.  v.  Keith.  67 
Ohio   St.    279.    60   L.   R.  A.    525. 

81.  Void  acts:  Act  requiring  residents  of 
a  portion  of  a  county  exempt  from  the 
general  stock  law,  to  build  a  fence  along 
lines  therein  described — Goodale  v.  Sowell, 
62  S.  C.  516.  Act  pensioning  school  teach- 
ers— Hibbard  v.  State.  65  Ohio  St.  574.  Law 
requiring  license  to  cut  ice  for  shipment 
without  the  state  and  requiring  a  payment 
to  the  state  for  each  ton  so  shipped — Ross- 
miller  V.  State,  114  Wis.  169. 

Valid  acts:  Acts  compelling  the  extension 
of  street  railway  lines,  the  legislature  hav- 
ing power  to  amend  charters — Metropolitan 
R.  Co.  v.  Macfarland,  20  App.  D.  C.  421.  Act 
allowing  the  destruction  of  glandered  ani- 
mals is  not  a  taking — Livingston  v.  Ellis 
County  (Tex.  Civ.  App.)  68  S.  W.  723.  Re- 
quiring license  from  transients — Levy  v. 
State  (Ind.)   68  N.  E.  172. 

82.  United  States  v.   Lynah.   1S8  U.   S.   4*5. 


18 


JURY  TRIALS. 


597 


A  city  cannot  escape  liability  for  damages  caused  to  property  by  the  destruction  of  a 
public  improvement,  because  it  was  built  by  the  city  in  the  exercise  of  its  police 
power,"'  and  this  rule  extends  to  a  taking  of  a  street  by  a  railroad  company  in 
obedience  to  a  statute  enacted  within  the  police  power  of  the  state.** 

The  provision  making  payment  a  condition  to  possession  is  violated  by  an  act 
authorizing  possession  by  a  railroad  company,  pending  condemnation  on  a  court  or- 
der.®°  The  necessity  of  payment  before  taking  applies  to  acquisition  of  right  of  way 
over  the  track  of  another  railroad  company.®*  Payment  into  court  suffices.'^  This 
requirement  as  a  rule  has  no  application  to  appropriation  for  a  purely  public  pur- 
pose.*® 

§  17.  Right  to  justice  and  guaranty  of  remedies. — The  making  of  conditions 
precedent  to  suit  does  not  deny  a  remedy^®  if  reasonable,'"  nor  do  laws  regulating 
costs.'^  The  act  allowing  the  court  to  refuse  continuance,  though  facts  expected  to 
be  proved  be  admitted,  is  constitutional.'^  A  jury  law  allowing  a  jury  commis- 
sioner to  select  a  jury  in  cities  of  a  specified  population  is  not  opposed  to  principles 
of  justice,  in  that  it  gives  an  opportunity  to  a  dishonest  commissioner  to  "fix**  the 
jury.'* 

The  right  to  be  heard  in  courts  of  last  resort  is  satisfied  where  the  right  may 
be  had  by  error  or  otherwise,  though  no  remedy  by  appeal  is  provided."*  Under  a 
grant  of  power  to  regulate  and  limit  appellate  procedure,  the  right  of  review  cannot 
be  destroyed.*"  An  act  allowing  removal  of  causes  in  cases  in  which  it  appears  that 
plaintiff  is  entitled  to  some  relief,  but  not  in  the  court  in  which  it  is  brought,  is  not 
unconstitutional,  because  no  right  of  appeal  is  secured  from  the  order  of  removal.'* 

§  18.  Jury  trials  preserved. — The  right  of  trial  by  jury  is  that  which  existed 
at  common  law,®^  or  prior  to  the  adoption  of  the  constitution.'*  It  is  not  a  matter 
of  right  in  an  equity  case,"  but  where  a  cause  is  divested  of  its  purely  equitable  fea- 
tures, a  party  is  then  entitled  to  a  trial  by  jury,  unless  he  waives  the  privilege.*     Not- 


88.  Chicago  v.  LeMoyne  (C.  C.  A.)  119 
Fed.    662. 

84.  McKeon  v.  New  York,  N.  H.  &  H.  R. 
Co.,   75  Conn.  343. 

85.  Code  Civ.  Proc.  §  1254 — Steinhart  v. 
Superior  Ct.,  137  Cal.  575.  70  Pac.  629,  59 
L.    R.    A.    404. 

86.  Civ.  Code,  Ga.  2167 — Atlantic  &  B.  R. 
Co.  V.  Seaboard  Air  Line  Ry.,  116  Ga.  412. 

87.  Code,  Va.  1079 — Southern  Ry.  Co.  v. 
Gregg    (Va.)    43   S.   E.   570. 

88.  For  school-site — Buckwalter  v.  School 
Dist.  No.   42.    65   Kan.   603,    70   Pac.   605. 

89.  Law  requiring  the  deposit  of  a  jury 
fee — Eckrich  v.  St.  Louis  Transit  Co.  (Mo.) 
75  S.  W.  755.  Postponing  actions  for  mali- 
cious prosecutions  w^hich  are  still  pending — 
Bonney  v.  King,  201  111.  47. 

90.  And  acts  requiring  presentation  of 
claims  against  municipalities  where  the  in- 
jured person  was  unable  to  present  his 
claim  within  the  time  (Laws  1894.  c.  623) 
—Williams  v.  Village  of  Port  Chester,  72 
App.    Div.    (N.    Y.)    505. 

91.  Grinage  v.  Times-Democratic  Pub.  Co., 
107   La.    121. 

92.  Howard  v.  Commonwealth,  24  Ky.  L. 
R.  960.  70  S.  W.   295. 

98.  Eckrich  v.  St.  Louis  Transit  Co.  (Mo.) 
75   S.    W.   755. 

94.  Sothman  v.  State  (Neb.)  92  N.  W.  303. 
Gen.  Laws  1901,  c.  258 — State  v.  Board  of 
County  Com'rs,  87  Minn.  325,  60  L.  R.  A. 
161. 

95.  Finlen  v.  Helnze,  27  Mont.  107,  69 
Pac    829.    70   Pac.   517. 


96.  Acts  Maryland,  1896,  c.  229 — Insur- 
ance Co.  of  North  America  v.  Schall,  96  Md. 
225. 

97.  Eckrich  v.  St.  Louis  Transit  Co.  (Mo.) 
75  S.  W.  755;  Mound  City  Land  &  Stock  Co. 
V.  Miller,  170  Mo.  240,  60  L.  R.  A.  190;  State 
V.  Hamey,  168  Mo.  167,  57  L.  R.  A.  846.  Not 
allowed  in  summary  proceedings — Mahoney 
V.  People,  98  111.  App.  241;  McLeod  v.  Lloyd 
(Or.)    71   Pac.    795. 

98.  State  v.  Shepherd  (Mo.)  76  S.  W.  79; 
Terry  v.  State,  24  Ohio  Circ.  R.  Ill;  Ha- 
thorne  v.  Panama  Park  Co.  (Fla.)  32  So.  812. 
Where  at  the  time  of  the  adoption  of  a 
constitution  guaranteeing  the  right  to  a 
jury  trial,  there  is  no  statutory  provision 
for  a  trial  by  jury  in  certain  species  of 
actions,  a  later  re-enactment  of  such  stat- 
utes does  not  carry  with  it  the  right  to  a 
jury  trial — Montana  Ore  Purchasing  Co.  v. 
Boston  &  M.  Consol.  Copper  &  Silver  Min. 
Co.,   27   Mont.   288,   70   Pac.   1114. 

99.  Maggs  v.  Morgan,  30  Wash.  604,  71 
Pac.  188;  Porter  v.  International  Bridge  Co., 
79  App.  Div.  (N.  Y.)  358;  Jones  v.  Wood,  24 
Ky.  L.  R.  840,  70  S.  W.  45;  Culp  v.  Mulvane 
(Kan.)  71  Pac.  273.  Provision  for  the  en- 
forcement of  a  mechanic's  lien  by  bill  In 
equity — Hathorne  v.  Panama  Park  Co.  (Fla.) 
32  So.  812.  Action  to  quiet  title  to  mining 
property  is  an  equitable  action — Montana 
Ore  Purchasing  Co.  v.  Boston  &  M.  Consol. 
Copper  &  Silver  Min.  Co.,  27  Mont.  536,  71 
Pac.    1005. 

1.  McNulty  V.  Mount  Morris  Elec.  Light 
Co.,   172  N.  Y.   410;   Kentucky  Land   &  Immi- 


598 


CONSTITUTIONAL  LAW. 


§  18 


withstanding  the  constitutional  guaranty,  the  court  may,  in  a  case  where  authorizci 
by  statute,  refer  the  case  generally  or  specially.^  Where  an  action  at  law  is  referred 
in  part  to  state  an  account,  either  party  is  entitled  to  a  jury  trial  as  to  the  remain- 
ing issues  joined.*  The  right  is  not  denied  by  rule  authorizing  entry  of  judgment 
for  plaintiff  for  wnnt  of  an  affidavit  of  defense.*  Unanimity  is  a  part  of  the  system 
until  constitutionally  changed." 

There  is  no  impairment  of  the  right  by  the  instruction  of  a  verdict  where  thevo 
is  no  material  conflict  in  the  evidence,®  or  by  the  action  of  a  court  in  setting  aside  an 
unjustifiable  verdict.'' 

The  right  to  a  jury  trial  may  be  made  to  depend  on  the  amount  involved.* 

Statutes  denying  an  appeal  in  certain  cases  may  operate  as  a  deprivation  of  the 
right.» 

An  action  on  several  of  a  series  of  notes,  some  due  and  some  not  matured  except 
as  they  were  matured  by  stipulation  that  all  should  become  due  on  default  of  any 
one,  is  not  a  suit  on  an  unconditional  contract  in  writing,  within  a  constitutional 
provision  requiring  verdict  of  a  jury  on  such  a  contract.^" 

One  against  whom  the  case  is  dismissed  on  the  ground  of  falsity  of  an  affidavit 
of  poverty  may  not  raise  the  question  that  he  is  thereby  deprived  of  the  right  of 
trial  by  jury ;  having  invoked  the  provisions  of  a  statute  allowing  this  procedure,  he 
is  bound  thereby .^^ 

The  provision  of  the  constitution  of  the  United  States,  guaranteeing  the  right 
of  jury  trial  for  crimes,  applies  to  the  territories.^^  Misdemeanors,^'  prosecutions 
for  violation  of  municipal  police  regulations,^*  and  the  like,  are  not  crimes  of  which 
jury  trial  is  of  right. 

The  jury  contemplated  by  the  federal  constitution  is  the  common-law  jury  of 
twelve  persons.^^  A  constitutional  provision  requiring  an  impartial  jury  from  the 
countv  where  the  offense  is  committed  does  not  make  it  necessary  that  the  jury  be 
selected  from  the  particular  municipality  in  the  county,^®  and  is  not  violated  by  a  law 
requiring  jury  commissioners  to  place  on  the  list,  names  of  persons  whom  they  be- 
lieve to  be  qualified,  nor  by  an  act  providing  that  if  the  panel  for  the  term  becomes 
exhausted,  it  may  be  completed  from  those  on  the  list  living  within  five  miles  of  the 
court  house.^^ 


gratlon  Co.  v.  Crabtree,  24  Ky.  L.  R.  743, 
70  S.  W.  31.  Defendant  in  a  purchase  money 
mortgage  foreclosure  interposing  as  a  coun- 
terclaim a  claim  of  damages  arising  from 
a  breach  of  covenant  against  incumbrancers 
is  entitled  to  a  jury  trial  on  the  Issue  so 
raised — Herb  v.  Metropolitan  Hospital  &  Dis- 
pensary, 80  App.  Div.  (N.  Y.)  145.  In  pro- 
ceedings to  review  a  judgment  where  de- 
fendant pleads  facts  amounting  to  payment 
and  satisfaction  of  a  judgment  and  plain- 
tiff joins  the  Issues  a  jury  trial  Is  a  mat- 
ter of  right — Farak  v.  First  Nat.  Bank 
(Neb.)   93  N.  W.  682. 

2.  Const,  art.  2,  §  2S — Tinsley  v.  Kemery, 
170  Mo.   310. 

3.  Tinsley  v.  Kemery,   170  Mo.   310. 

4.  Fidelity  &  Deposit  Co.  v.  United  States, 
187  U.   S.   315. 

5.  Girdner  v.  Bryan,  94  Mo.  App.  27. 

6.  Henry  v.  Thomas  (Tex.  Civ.  App.)  74 
S.  W.  599;  Hintz  v.  Michigan  Cent.  R.  Co. 
(Mich.)     93    N.    W.    634. 

7.  Serwer  v.  Serwer.  71  App.  Div.  (N.  Y.) 
415. 

8.  Items  may  be  cumulated  to  make  the 
amount — Lee   v.  Dow,    71   N.   H.    326. 


9.  An  act  denying  an  appeal  from  a  com- 
missioner's court  in  civil  cases,  where  the 
amount  of  the  judgment,  exclusive  of  costs, 
does  not  exceed  $20.00,  violates  the  consti- 
tutional provision  guaranteeing  right  of  trial 
by  jury  in  suits  at  common  law,  where  the 
amount  In  controversy  exceeds  $20.00  (Act 
Congress,  March  1,  1895) — Archard  v.  Far- 
rls  (Ind.  T.)  69  S.  W.  821.  There  is  a  dep- 
rivation of  the  right  of  trial  by  jury  by 
an  act  allowing  cemetery  associations  to  se- 
cure land,  the  value  to  be  determined  by 
specified  commissioners  and  giving  no  right 
of  appeal — King  v.  Greenwood  Cemet^y 
Ass'n,   67  Ohio  St.   240. 

10.  Howard   v.   Wellham,   114   Ga.   934. 

11.  Woods    V.    Bailey,    122    Fed.    967. 

12.  Queenan  v.  Territory,  11  Okl.  261.  71 
Pac.  218. 

13.  People  V.  Stein.  80  App.  Div.  (N.  Y.) 
357. 

14.  Delaney   v.   Police  Court,   167  Mo.   667. 

15.  Queenan  v.  Territory,  11  Okl.  261,  71 
Pac.   218. 

16.  Lloyd  v.  Dolljsin,  23  Ohio  Circ.  R. 
571;  United  States  v.  Peuschel,   116  Fed.   642. 

17.  State  V.   Bolln   (W^yo.)    70  Pac.   1. 


§  19 


CRIMES  AND  PROSECUTIONS. 


599 


Special  juries  in  cities  of  a  specific  population  may  be  authorized  and  deposit  a 
jury  fee  required/^  and  unless  the  manner  of  obtaining  a  jury  is  prescribed,  an  act 
creating  city  court  is  not  unconstitutional,  because  it  provides  for  summoning  a  panel 
of  sixteen  jurors  from  which  twelve  should  be  taken.^' 

§  19.  Crimes,  prosecutions,  punishments  and  penalties. — A  provision  against 
passing  of  local  or  special  acts  to  regulate  the  punishment  of  crimes  repeals  a  special 
act  wherein  it  provides  for  the  punishment  for  embezzlement  by  officers  of  a  certain 
bank.^°  Under  a  constitutional  provision  declaring  gambling  a  vice  and  giving  the 
legislature  power  to  pass  laws  for  its  suppression,  the  legislature  have  power  to  de- 
clare betting  on  races  at  a  distance,  in  the  turf  exchange,  gambling.*^ 

Ex  post  facto  laws  include  only  those  punishing  crime,"-  One  charged  with  a 
crime  is  entitled  to  the  benefits  of  a  law  applicable  thereto,  enacted  after  his  com- 
mitment and  before  his  conviction  and  sentence,  though  the  situation  cannot  be 
altered  to  his  disadvantage  by  later  legislation.^*  The  place  of  executing  a  sentence 
may  be  changed  ex  post  facto.^*  The  statute  against  the  practice  of  medicine  by 
unregistered  persons  and  creating  boards  of  registration  does  not  render  the  act  ex 
post  facto  as  to  one  licensed  under  a  prior  act,  where  the  later  act  provides  for  regis- 
tration of  persons  legally  registered  under  the  earlier  act.^** 

The  federal  provision  that  no  person  shall  be  held  to  answer  for  an  infamous 
crime,  except  on  presentment  or  indictment  of  the  gi-and  jury,  is  a  limitation  on  the 
congressional  power  and  does  not  apply  to  the  states.^® 

The  nature  and  extent  of  the  accusation  may  be  known  without  averring  the 
name  of  the  purchaser  in  an  indictment  for  selling  liquors  without  a  license.^^ 

The  right  to  speedy  trial  does  not  clash  with  a  law  declaring  that  no  bar  shall 
arise  to  further  prosecution  of  one  who  is  discharged  for  delay  in  coming  to  trial.'® 
Accused  cannot  be  discharged  and  the  indictment  afterwards  reinstated.-" 

The  right  to  compulsory  process  to  compel  attendance  of  witnesses  in  criminal 
prosecutions  is  not  a  guaranty  of  their  attendance,  nor  of  more  than  ordinary  dili- 
gence in  serving  the  subpoena.*" 

The  confrontation  of  witnesses  is  given  if  accused  has  opportunity  to  be  present 
when  witnesses  give  evidence  which  is  introduced  in  writing.*^ 

One  is  compelled  to  be  a  witness  against  himself  by  a  prosecution  under  an 
indictment  founded  on  his  own  involuntary  testimony.*^  The  privilege  against  self- 
incriminating  testimony  precludes  cross-examination  of  accused  as  to  matters  whieli 


18.  EJckrich  v.  St.  Louis  Transit  Co.  (Mo.) 
75   S.   W.    755. 

19.  Mattox  V.   State,   115   Ga,   212. 

20.  Commonwealth  v.  Porter,  24  Ky.  L. 
R.   364,   68  S.  W.   621. 

21.  City  of  Shreveport  v.  Maloney,  107 
La.    193. 

22.  The  revocation  of  a  physician's  cer- 
tificate for  gross  immorality  is  not  a  crim- 
inal punishment  within  the  ex  post  facto 
clause,  though  applied  to  one  whose  habits 
were  grossly  Immoral  before  tlie  passage 
of  the  law — Meffert  v.  State  Board  of  Medical 
Registration  &  Examination  (Kan.)  72  Pac. 
247.  Ex  post  facto  law  see  State  v.  Calla- 
han,   109    La.    946. 

23.  State  V.  Edwards,   109  La.   236. 

24.  Capital  punishment  at  state  prison  in- 
stead of  jail — State  v.  Rooney  (N.  D.)  95 
N.   W.   513. 

25.  Reetz  V.  Michigan,   188  U.  S.   505. 

26.  State  V.  Jones,  168  Mo.  398;  People 
V.  Scannell,  37  Misc.  (N.  Y.)  345.  An  act 
establishing   a   criminal    court   for   a   city     is 


not  unconstitutional  for  failure  to  provide 
that  one  accused  of  a  penal  offense  shall 
have  right  to  demand  trial  by  indictment — 
Welborne   v.   Donaldson,    115   Ga.    563. 

27.  Jones  v.   State,   136  Ala.  118. 

28.  In  re  Begerow,  136  Cal.  293,  68  Pac. 
773,   56  L.  R.  A.   528. 

29.  Prosecuting  attorney  announced  his 
unreadiness  to  proceed  with  trial,  discharged 
witnesses  and  accused  from  his  bond — 
Jones  v.  Commonwealth,  24  Ky.  L.  R.  1434, 
71  S.  W.  643. 

30.  Smith  V.   State   (Ga.)    44   S.   B.  817. 

31.  Written  testimony  before  examining 
magistrate  (Rev.  St.  Utah,  1898,  §  4513,  subd. 
4)_State  V.  King,  24  Utah,  482,  68  Pac.  418. 
Depositions — State  v.  Kline,  109  La.  603. 
Right  to  confront  witnesses  not  impaired 
by  reading  testimony  of  deceased  witness — 
People  V.  Elliott,  172  N.  Y.  146.  Right  to 
confront  witnesses  may  be  waived — Odell 
V.    State    (Tex.  Cr.   App.)    90  S.  W.   964. 

32.  State  v.  Gardiner,  88  Minn.  130. 


600 


CONSTITUTIONAL  LAW. 


g  19 


he  did  not  develop  in  evidence."  Merely  requiring  one  to  be  sworn  before  the  grand 
jury  does  not  abridge  this  privilege."  There  must  be  compulsion.^^  The  fourteenth 
federal  amendment  did  not  extend  the  fifth  so  as  to  make  guaranty  therein  apply  to 
states.^'  The  presumption  of  guilt  from  silence  of  witnesses  other  than  accused  is 
not  forbidden." 

In  felony  cases  a  jury  cannot  be  waived  by  accused." 

An  act  allowing  sentence  to  depend  on  the  fact  of  a  prior  conviction  does  not 
provide  for  sentence  uncertain  or  disproportionate  to  the  offense.^®  Fines  in  cases 
made  to  abide  the  event  of  a  like  case  are  not  "assessed  by  a  jury,"  hence  are  void 
if  they,  with  the  fine  in  the  test  case,  exceed  what  may  be  imposed  by  the  court.*" 
The  inhibition  of  disproportionate  penalties  refers  only  to  criminal  ones.*^  A  fine 
of  twice  the  amount  embezzled  from  the  state  is  not  double  punishment.*^  It  is  not 
double  punishment  to  penalize  an  act  in  addition  to  giving  a  civil  recovery.*'  Ex- 
cessive fines**  and  cruel  and  unusual  punishment*"  are  not  imposed  because  separate 
fines  will  in  the  aggregate  take  many  years  to  work  out.*® 

There  is  no  jeopardy  to  preclude  a  second  trial  if  the  case  was  brought  to  an  end 
before  the  jury  was  sworn,*''  or  even  afterwards,  if  the  proceedings  were  insufficient 
to  support  a  conviction,*^  or  the  jury  became  disqualified  or  disagreed.*®  A  trial  of 
a  special  issue  is  not  jeopardy,'"  nor  is  a  former  trial  for  an  offense  which,  though 
perhaps  arising  out  of  the  same  acts,  was  not  identical  with  the  one  charged  at  bar,"*^ 
and  accused  cannot  complain  that  a  former  trial  jeopardized  him,  when  at  his  own 
instance  it  has  been  set  aside  or  reversed."^ 

An  act  allowing  a  person  under  an  indeterminate  sentence  to  be  released  by 
prison  officers  does  not  invade  the  governor's  pardoning  power, '^^  or  provide  an  im- 
eertain  sentence.'* 

A  constitutional  provision  declaring  that  fines  shall  be  for  the  benefit  of  the 
school  fund  will  not  prohibit  the  legislature  from  authorizing  a  judgment  in  a 
criminal  action  which  will  operate  in  favor  of  the  party  whose  moneys  have  been 
embezzled.'^ 


People  V.  Wyatt,   39  Misc.   (N.  Y.)    456. 
United    States    v.     Kimball,    117     Fed. 


33.  Rogers  v.  State  (Tex.  Cr.  App.)  71 
S.    W.   18. 

34.  He  cannot  assert  it  till  questioned — 
United  States  v.  Kimball,  117  Fed.  156.  But 
unless   he   tlien  asserts  It  it   is   lost — Id. 

35.  United  States  v.  Kimball,  117  Fed. 
156. 

30. 
3T. 
156. 

38.  Starr  &  C.  Ann.  St.  c.  38,  §  168 — 
Paulsen    v.    People.    195    111.    507. 

39.  People  v.  Fox,  77  App.  Div.  (N.  Y.) 
246. 

40.  Madden   v.   State    (Tenn.)    67   S.  W.   74. 

41.  Penalty  for  discrimination  by  one  ex- 
press company  against  another — Adams  Exp. 
Co.    V.   State    (Ind.)    67   N.   E.   1033. 

42.  Crim.  Code.  Neb.  §  124 — Everson  v. 
State    (Neb.)    92    N.    W.    137. 

43.  Penal  statute  making  pool  selling  or 
book  making  a  felony,  except  where  another 
penalty  is  provided  by  law,  of  amounts  lost 
in  a  civil  action  (Pen.  Code  of  New  York, 
§  351) — People  v.  Stedeker.  75  App.  Div.  (N. 
Y.)    449. 

44.  Fine  of  one  thousand  dollars  for  as- 
sault and  battery  on  a  young  woman,  not 
excessive — Doyle  v.  Commonwealth  (Va.)  40 
S.  E.  925.  Anti-trust  law  not  invalid  as 
laying  excessive  fines — State  v.  Laredo  Ice 
Co.    (Tex.)    73   S.   M^   951. 


45.  Fine  of  JlOO  or  imprisonment  for 
ninety  days  for  operating  stage  without 
license  not  a  cruel  and  unusual  punisliment 
— Borough  of  Belmar  v.  Barkalow,  67  N.  J. 
Law,    504. 

46.  Twenty  convictions  of  selling  liquor, 
twelve  years  to  work  out  the  fines — Ex  parte 
Brady,   70   Ark.    376. 

47.  State  V.  Taylor.  171  Mo.  465;  State 
V.   Lewis   (Wash.)    71  Pac.   778. 

48.  Defective  indictment — State  v.  Hol- 
ton,  88  Minn.  171;  State  v.  Sherman  (Ark.) 
74  S.  W.  293.  Verdict  on  fatally  defective 
indictment  is  no  jeopardy — State  v.  Brown 
(La.)    34  So.   698. 

49.  Illness  of  juror  and  discharge  of  jury 
— People  V.  Smith,  172  N.  Y.  210.  Discharge 
on  disagreement — Dreyer  v.  Illinois,  187  U. 
S.  71.  Discharge  on  holiday  legal — State 
V.  Lewis   (Wash.)   72  Pac.   121. 

50.  Issue  of  former  conviction — State  v. 
Ellsworth,   131  N.  C.  773. 

51.  See  Criminal  Law  where  the  cases 
are    collected   showing   what   are   identical. 

52.  People  V.  McFarlane,  138  Cal.  481. 
71  Pac.  568.  72  Pac.  48;  State  v.  Morrison 
(Kan.)    72  Pac.   554. 

53.  People  V.  Warden  of  Sing  Sing,  39 
Misc.    (N.    Y.)    113. 

54.  Indeterminate  sentence  act  not  bad 
for  uncertainty — People  v.  Warden  of  Sing 
Sing,    39    Misc.    (N.    Y.)    113.      Indeterminate 


g  22 


GOVERNMENT;  COURTS;  OFFICERS. 


bOl 


§  20.  Searches  and  seizures. — The  taking  of  incriminating  property  from  a 
defendant  iinder  arrest,  without  his  consent,  for  use  in  evidence,  does  not  amount 
to  an  unreasonable  search  and  seizure.^® 

§  21.  Suffrage  and  elections. — The  right  to  vote  at  a  purely  state  election  ia 
governed  by  the  laws  of  the  state.  The  fifteenth  amendment  does  not  confer  an 
affirmative  right  to  vote.  Its  office  is  to  inhibit  abridgment  of  the  right  on  grounds 
of  race,  color  or  condition.  It  is  not  directed  against  individuals  who  may  intimi- 
date voters.^^  Under  the  constitutional  provision  that  male  citizens  shall  be  eligible 
to  vote  for  all  elective  offices  to  be  elected  by  the  people,  the  legislature  may  not 
create  a  board  of  five  members  with  bi-partisan  representation  on  such  board,  and 
limiting  the  right  of  a  voter  to  vote  for  more  than  three  of  such  officers.^^  A  require- 
ment that  voters  shall  vote  in  the  wards  of  their  residence  does  not  impose  an  addi- 
tional qualification  within  a  prohibition  of  additional  qualifications.^*  Where  the 
constitution  of  a  state  makes  residence  in  a  municipality  for  one  year  a  condition  to 
right  to  vote  at  the  election,  a  city  is  without  power  to  require  a  residence  of  one 
year  prior  to  registration.""  An  act  imposing  a  property  qualification  on  persons 
voting  on  the  question  of  the  establishment  of  a  water-work  system  does  not  conflict 
with  the  constitutional  provision  prohibiting  property  qualification,  the  legislature 
having  elsewhere  in  the  constitution  been  given  the  power  to  restrict  the  taxing 
power  of  municipalities  so  as  to  prevent  abuse  of  assessment.'^ 

A  ballot  law  prohibiting  the  placing  of  the  name  of  the  candidate  nominated 
by  different  parties  under  the  different  party  emblems  interferes  with  the  right  of 
])arties  to  make  nominations,  and  with  the  right  of  a  candidate  to  demand  that  his 
name  shall  be  placed  on  the  ballot  so  as  to  inform  voters  that  he  is  the  nominee 
of  the  political  parties.®^  The  fact  that  the  constitution  makes  all  persons  entitled 
to  vote  eligible  to  office  does  not  prevent  the  legislature  from  enacting  laws  governing 
the  form  of  a  ballot  and  limiting  the  right  of  a  candidate  to  have  his  name  placed 
on  such  ballot.*^ 

The  Nebraska  primary  election  law,  being  complete  in  itself,  does  not  contra- 
vene a  constitutional  provision  relating  to  amendments  of  laws,  though  one  of  the 
sections  operates  indirectly  as  an  amendment  of  a  section  of  the  general  election 
law." 

Under  a  constitutional  provision  authorizing  a  city  to  form  a  charter  to  be 
submitted  at  the  "next  election"  thereafter,  it  is  not  necessary  that  it  be  submitted  at 
a  general  election.®''  A  drainage  act  is  not  unconstitutional  by  reason  of  the  fact 
that  it  gives  each  owner  of  land  one  vote  for  each  acre  owned  by  him.'' 

§  22.  Frame  and  organization  of  government;  courts;  officers. — The  right  of 
local  self  government  is  not  a  guaranty  to  a  cit}'^,  against  appointment  of  its  govern- 
ing body  by  the  governor  of  the  state ;  but  it  has  reference  solely  to  the  people  of  the 
state  and  not  to  the  people  of  any  portion  of  it."' 


sentence    law    valid — Shular   v.    State    (Ind.) 
fi6   N.   E.    746. 

.55.     Everson  v.  State   (Neb.)   92  N.  W.  137. 

56.  Russell  V.   State    (Neb.)    92   N.   W.   751. 

57.  Prosecution  for  conspiracy  to  intim- 
idate voters  under  Rev.  St.  §  5508 — Karem  v. 
United   States    (C.  C.  A.)    121   Fed.    250. 

58.  Bowden   v.    Bedell,   68   N.    J.   Law,    451. 

59.  60.     State   v.   Kelly    (Miss.)    32    So.    909. 

61.  Spitzer  v.  Village  of  Fulton,  172  N. 
T.  285. 

62.  Pol.  Code,  §  797 — Murphy  v.  Curry, 
137  Cal.  479,  70  Pac.   461,  59  L.  R.  A.  97. 

63.  State  V.  Moore,  87  Minn.  308,  59  L.  R. 
A.    447.      There    is    no    infringement    of    the 


constitutional  provision  making  voters  eli- 
gible to  office  by  a  provision  prohibiting  a 
candidate  who  has  sought  nomination  from 
a  political  party  and  been  successful  from 
having  his  name  printed  on  the  official  bal- 
lot as  an  independent  candidate  for  the 
same  office;  the  right  of  such  a  person  is 
amply  protected  by  the  provision  for  a  blank 
space  for  the  writing  of  names  of  candi- 
dates— Id. 

64.  Laws  1899.  c.  27 — De  France  v.  Harm- 
er   (Neb.)    92  N.  W.   159. 

65.  State  V.   Kiewel,   86   Minn.    136. 

66.  Mound  City  Land  &  Stock  Co.  v.  Mil- 
ler,   170   Mo.    240,    60    L.    R.    A.    190. 


602 


CONSTITUTIONAL  LAW. 


§  22 


No  offices  may  he  created  except  as  specially  authorized  by  the  constitution.** 
A  constitutional  provision  against  creation  of  executive  offices  is  not  violated  by  an 
act  imposiug  duties  of  commissioner  of  department  on  governor  of  the  state,  and 
providing  for  appointment  of  special  deputy  to  assist  in  discharging  such  dutie<5." 

Wliere  the  courts  have  been  classified  or  the  jurisdiction  fixed  by  the  constitution, 
the  legislature  is  without  power  to  alter  either.'^"  Grants  of  power  to  erect  courts" 
or  define  jurisdiction"  are  limited  to  terms  of  the  grant.  Under  a  provision  con- 
ferring appellate  jurisdiction  on  the  supreme  court  in  all  cases  at  law  and  in  equity, 
under  such  limitations  and  regulations  as  the  legislature  may  prescribe,  the  legisla- 
ture cannot  enlarge  or  diminish  the  jurisdiction  or  the  right  of  appeal."  Where 
jiirisdiction  is  fixed  at  a  certain  amount,  a  court  has  no  jurisdiction  of  an  offense 
where  the  maximum  fine  would  exceed  the  jurisdictional  amount.^*  The  giving  of 
;i  right  which  is  litigable  in  chancery  does  not  extend  chancery  powers.''  Judges 
as  distinguished  from  the  courts  may  be  deprived  of  powers.'^ 

An  act  temporarily  increasing  the  number  of  judges  of  the  supreme  court  does 
not  violate  the  constitutional  provision  that  the  supreme  court  shall  consist  of  a 
stated  number  of  judges,  and  that  the  legislature  may  increase  the  number  thereof 
from  time  to  time.'''  Provision  may  be  made  for  a  judge  to  serve  during  a  vacancy 
in  a  constitutional  court." 


67.  Brown  v.  Galveston  (Tex.)  76  S.  W. 
488.  The  appointment  of  the  majority  of 
a  board  of  commissioners,  to  constitute  the 
governing  body  of  a  city,  is  not  prevented 
by  the  constitutional  provision  allowing  the 
voters  the  right  to  vote  for  "mayor"  and 
all  other  elective  offices — Id.  Local  self  gov- 
ernment Is  not  impaired  by  state  officers  as- 
sessing franchise  taxes — People  v.  State 
Board  of   Tax   Com'rs,    174   N.   Y.    417. 

68.  Superintendent  of  sewers — Lowery  v. 
Lexington.  25  Ky.  L.  R.  392,  75  S.  W.  202. 
Legislature  of  Kentucky  is  without  power 
under  the  constitution  to  create  a  board 
with  judicial  powers  to  try  county  election 
contests,  as  this  in  effect  creates  a  new 
court — Davison  v.  Johnson,  24  Ky.  L.  R. 
27,  67  S.  W.  996.  Laws  authorizing  the  in- 
corporation of  a  private  police  and  detective 
agency  with  power  to  arrest  and  imprison 
on  the  officers  giving  bond  and  taking  of 
an  oath  and  requiring  no  public  service 
when  qualified  except  ability  to  read  and 
write  and  putting  no  limit  on  the  time  the 
officers  may  discharge  their  powers,  vio- 
lates a  constitutional  provision  against  the 
creation  of  offices,  appointment  to  which 
shall  be  for  more  than  a  term  of  years,  and 
that  no  grant  of  exclusive  privileges  shall 
be  made  to  any  man  except  on  consideration 
of  public  service,  and  requiring  civil  offi- 
cers of  the  state  at  large  to  reside  in  the 
state,  and  all  officers  of  the  districts,  coun- 
ties and  municipalities  to  reside  therein — 
(Kentucky  Act,  March  3,  1884) — Swincher 
V.  Commonwealth,  24  Ky.  L.  R.  1897.  72  S. 
W.  306.  Under  a  constitution  enumerating 
the  legislative  employes,  there  can  be  no 
payment  from  a  contingent  fund  of  a  claim 
for  services  by  an  officer  not  included  in 
the  enumeration  and  this  particularly  where 
an  act  In  force  at  the  time  provided  that 
no  other  employes  than  those  enumerated 
should  be  elected  without  joint  action  by 
the  two  houses — Walker  v.  Coulter,  24  Ky. 
Li,   R.    530,    68   S.   W.   1108.      Electoral   boards 


are    not    constitutional    officers — Sinclair    v. 
Young   (Va.)    40  S.  E.  907. 

69.  State  v.  Eskew  (Neb.)  90  N.  W.  869; 
Merrill  v.  State    (Neb.)   91  N.  W.  418. 

70.  Jurisdiction  of  federal  courts  under 
the  constitution  of  the  United  States,  see 
Appeal,  Jurisdiction — Love  v.  Liddle  (Utah) 
72   Pac.    185. 

An  act  allowing  a  township  to  pass  an 
ordinance  directing  application  to  courts  to 
compel  railroad  companies  to  erect  gates 
at  crossings,  does  not  confer  on  the  court  the 
power  inherently  belonging  to  the  supreme 
court  and  exercisable  by  mandamus — Pal- 
myra Tp.  V.  Pennsylvania  R.  Co.,  63  N.  J- 
Eq.   799. 

71.  Under  a  constitutional  provision  au- 
thorizing the  establishment  of  Inferior 
courts  in  territory  constituting  territorial 
division  of  the  state,  the  legislature  may 
not  authorize  election  of  magistrate  in  ter- 
ritory corresponding  to  a  congressional  dis- 
trict, as  such  districts  are  federal  and  not 
state  subdivisions  (Laws  1901,  c.  466,  }  1392) 
— People  V.  Dooley,  69  App.  Div.   (N.  Y.)   512. 

72.  Power  to  confer  additional  jurisdic- 
tion on  certain  courts  does  not  give  the  leg- 
islature power  to  confer  jurisdiction  beyond 
this  limitation — Ex  parte  Cox  (Fla.)  3$  So. 
509. 

73.  Finlen  v.  Heinze.  27  Mont.  107,  69  Pac. 
829. 

74.  State  V.  Wiseman,  131  N.  C.  795. 

75.  Fixing  a  penalty  for  violation  of  an 
act  against  discharging  sewerage  In  streams 
from  which  municipalities  receive  water, 
ind  authorizing  state  board  of  health  to 
enjoin  the  act  by  suit  in  a  chancery  court — 
State  Board  of  Health  v.  Diamond  Paper 
Mills  Co.    (N.  J.  Law)    53   Atl.   1125. 

76.  State  V.  Taylor,   68  N.  J.  Law,   276. 

77.  Laws  of  Wash.  1901,  p.  345 — Stato  v. 
McBride.    29   W^ash.    335,   70   Pac.   25. 

78.  Tovifn  of  Grayson  v.  Bagby,  25  Ky.  L. 
R.   44,   74   S.  W.   659. 


§  22 


OFFICERS. 


603 


Under  a  constitutional  provision  authorizing  the  legislature  to  change  supreme 
court  districts  at  the  session  next  preceding  the  election  of  the  judges,  the  legislature, 
in  changing  the  boundaries  of  one  district  at  such  time,  may  make  sueh  changes 
in  other  districts  as  are  necessary.''"  A  constitutional  provision  for  requiring  re- 
districting  of  a  state  for  legislative  purposes  the  year  following  a  national  census, 
and  each  ten  years  thereafter,  does  not  require  that  the  successive  re-apportionment 
acts  should  be  taken  the  year  following  the  taking  of  the  national  census.  It  is 
sufficient  if  a  census  has  been  taken  before  the  enactment  of  the  act.*" 

Appointments,  election,  and  removal  of  officers. — A  provision  that  the  senate 
shall  advise  and  confirm  all  appointments  to  constitutional  or  legislative  offices  is 
limited  by  a  following  provision  contemplating  modes  of  appointment  "otherwise 
provided,"  and  the  senatorial  confirmation  may  be  dispensed  with  by  law.*^  Wliere 
the  constitution  makes  it  the  duty  of  the  legislature  to  provide  for  the  election  of 
county  officers,  the  appointment  of  such  officers  may  not  be  delegated  to  other  count)' 
officers.*^  An  act  allowing  the  president  of  a  county  board  to  appoint  a  civil  service 
commission,  without  consent  and  advice  of  the  members  of  the  board  of  commission- 
ers, does  not  violate  a  constitutional  provision  for  the  management  of  affairs  of  such 
county  by  a  board  of  such  commissioners.^^ 

A  constitutional  provision  vesting  electors  and  county  or  municipal  authorities 
with  the  selection  of  officers  whose  appointments  are  not  provided  for  by  the  con- 
stitution is  violated  by  an  act  for  the  consolidation  of  numerous  boards  of  com- 
missioners into  one  board,  and  naming  the  commissioners  for  the  first  year,®*  and  by 
an  act  allowing  the  appointment  of  city  magistrates  by  the  mayor  for  a  term  of 
years  and  authorizing  the  election  of  city  magistrates  in  congressional  districts  in- 
cluded in  such  city,  as  the  act  does  not  require  the  election  of  magistrates  by  the 
entire  city,*°  and  by  acts  transferring  the  duties  and  privileges  belonging  to  local 
officers  to  state  officers.**  It  is  not  violated  by  an  act  allowing  the  appointment  of 
commissioners  of  juries  by  justices  of  the  supreme  court,  in  counties  having  a  cer- 
tain population,*^  nor  by  an  act  terminating  the  office  of  commissioners  in  New  York 
city  and  vesting  their  powers  in  a  single  commissioner  who  could  be  removed  by  the 
mayor  or  governor  whenever  the  public  interest  requires,  as  the  vesting  of  the  power 
of  removal  in  the  governor  was  a  particular  qualification  of  the  mayor's  power  of 
appointment.®*  The  right  to  vote  for  all  elective  officers  is  impaired  by  an  act 
allowing  a  vote  for  but  three  of  a  bi-partisan  board  of  five.*" 

An  act  forfeiting  an  office,  for  failure  of  the  elected  candidate  to  file  a  verified 
statement  of  his  election  expenses,  violates  a  constitutional  provision  by  requiring  an 
oath  of  office  different  from  the  one  required  therein,  and  the  further  provision  that 
no  otliei-  oaths,  declarations  or  tests  shall  be  required  as  a  qualification  for  any  office 
of  public  trust."" 

Tenure  of  office. — ^Under  a  constitutional  provision  that  county  officers  shall  be 
elected  at  such  times,  in  such  numbers  and  for  such  periods  not  exceeding  six  years, 
as  may  be  prescribed  by  law,  the  legislature  may  shorten  the  term  of  office  of  in- 


79.  People  v.   Rose    (111.)    67   N.   E.    746. 

80.  People  V.   Carlock,   198   111.   150. 

81.  Idaho  Act,  March  3,  1889 — In  re  In- 
man    (Idaho)    69   Pac.   120. 

82.  Appointment  of  county  hospital  physi- 
cian by  supervisors — People  v.  Wheeler,  136 
Cal.    652,    69    Pac.    435. 

83.  1  Starr  &  C.  Ann.  St.  (2nd  Ed.)  p. 
1102 — Morrison   v.   People.   196   111.    454. 

84.  Village  of  Saratoga  Springs  v.  Van 
Norder,    75    App.    Div.    (N.    T.)    204. 


85.  Laws    1901,    c.    466,    §    1392 — People    v. 
Dooley.    171    N.    Y.    74. 

86.  People  V.  State  Board  of  Tax  Com'r."5, 
174   N.   T.   417. 

87.  In    re    Allison,    172    N.    T.    421.      But 
compare  In  re  Brenner,   170  N.  Y.  185. 

88.  Laws    1901,   c.    33 — People  v.    Coler,    71 
App.    Div.    (N.   Y.)    584. 

89.  Bowden   v.   Bedell,   68  N.  J.   Law,   451. 

90.  Stryker  v.  Churchill,  39  Misc.    (N.  T.) 
678. 


^Q^  CONSTITUTIONAL  LAW.  §  23 

cumbents  elected  for  a  fixed  term."  In  some  states  the  constitution  prohibits  en- 
actment of  laws  extending  the  terms  of  public  officers.'^  The  constitutional  pro- 
vision that  officers  shall  continue  to  perform  the  duties  of  their  offices  until  the 
qualification  of  their  successors  is  mandatory,  and  an  officer  continues  in  office  until 
the  appointment  of  his  successor,  notwithstanding  the  acceptance  of  his  resigna- 
tion." 

The  office  of  state  assessor  in  Mississippi  is  one  held  under  the  authority  of  the 
state,  within  a  constitutional  provision  forbidding  a  person  to  hold  office  under  au- 
thority of  the  state  while  holding  an  office  of  honor  or  profit  under  the  United 

States." 

Under  the  constitution  fixing  the  number  of  members  of  the  legislature,  offi- 
cials receiving  certificates  of  nomination  are  without  power  to  refuse  a  certificate 
or  prevent  the  name  of  the  party  certifying  from  appearing  on  the  ballot,  on  the 
ground  that  the  nomination  calls  for  excess  in  membership,  as  the  legislature  is  the 
proper  body  to  pass  upon  the  election  and  qualification  of  its  members.^^ 

Compensation.""— Additional  compensation  for  services  in  the  line  of  duty  may 
not  usually  be  made  during  incumbency,  or  when  the  compensation  is  fixed  by  the 
constitution,  to  an  officer  whose  compensation  is  fixed  by  law."  A  provision  allowing 
the  increase  of  salaries  of  judges  does  not  authorize  acts  excepting  judges  presiding 
in  circuits  of  a  certain  area  and  population.'*  Under  a  constitution  providing  that 
justices  shall  have  such  compensation  "as  have  been  heretofore  or  may  hereafter 
be  prescribed  by  law,"  the  legislature  has  power  to  fix  the  amount  to  be  paid  by 
specified  counties  to  justices,  for  services  in  criminal  cases.®*  A  constitutional  pro- 
N-ision  requiring  uniformity  of  system  of  town  and  county  government  is  not  vio- 
lated by  an  act  for  salary  of  officer  in  counties  containing  a  specified  population, 
though  such  officers  in  other  counties  are  paid  by  fees,  where  there  is  no  change  in 
the  method  of  electing  the  officer,  and  a  requirement  for  the  execution  of  a  bond  is  to 
protect  the  county  in  its  title  to  fees  which  had  formerly  belonged  to  the  officer.* 

§  23.  Taxation  and  fiscal  affairs. — The  fact  that  the  constitution  does  not 
expressly  authorize  the  imposition  of  an  inheritance  tax  will  not  defeat  the  right  of 
the  legislature  to  provide  for  such  tax,  where  the  constitution  declares  that  the 
enumeration  of  certain  rights  therein  shall  not  be  construed  to  deny  others  retained 
by  the  people.'  A  county  empowered  to  tax  for  county  purposes  may  not  be  au- 
thorized to  lev}'  a  tax  to  pay  a  state  officer's  salary.^  Under  a  provision  requiring 
that  every  person  in  the  state  or  holding  property  therein  should  contribute  to  the 


91.  Brown  v.  Brooke,  95  Md.  738. 

92.  Violated  by  act  postponing  date  of 
election  of  judges— People  v.  Knopf,  198  111. 
340. 

93.  Keen  v.  Featherston  (Tex.  Civ.  App.) 
69    S.   W.    983. 

94.  This  constitutional  provision  does  not 
prevent  one  in  holding  a  state  office,  but 
who  has  pending  a  contest  therefor,  from 
accepting  during  the  pendency  of  the  con- 
test, an  office  under  the  United  States,  and 
the  contest  will  not  be  dismissed  on  mo- 
tion showing  the  acceptance — State  v.  Kelly, 
SO   Miss.    803. 

95.  Mills  V.   Newell    (Colo.)    70  Pac.   405. 

96.  A  salary  fixed  by  constitution  is  not 
taxable — In  re  Taxation  of  Judge's  Salaries, 
131  N.  C.  692.  An  act  limiting  the  amount 
to  be  paid  justices  in  a  specified  county  for 
.attendance  on  criminal  cases,  being  local 
but  not  special,  does  not  violate  the  consti- 
tutional provision  against  the  enactment  of 


a  special  law  respecting  that  for  which  pro- 
vision has  been  made  by  a  general  law. 
The  act  is  local  but  not  special — Herbert 
V.  Baltimore  County  Com'rs  (Md.)  65  Atl. 
376. 

97.  Applied:  To  officers  acting  ex  officio 
in  a  second  capacity — Warner  v.  Board  of 
State  Auditors,  128  Mich.  500.  To  officer  per- 
forming unusual  service — Humboldt  County 
V.  Stern,  136  Cal.  63,  68  Pac.  324.  To  officer 
claiming  allowance  for  expenses — Coles 
County  V.  Messer,  195  111.  540. 

98.  Bennett  v.  State  (S.  D.)   93  N.  W.   643. 

99.  Herbert  v.  Baltimore  County  Com'rs 
(Md.)    55  Atl.   376. 

1.  Laws  1895,  c.  169 — Verges  v.  Milwaukee 
County    (Wis.)    93   N.   W.   44. 

2.  State  V.  Clark,  30  Wash.  439,  71  Pac. 
20. 

3.  Judges  held  state  officers — Colbert  y. 
Bond  (Tenn.)  75  S.  W.  1061. 


§  23 


TAXATION. 


605 


public  taxes,  the  taxes  may  be  imposed  on  a  domestic  corporation  owned  by  a  non- 
resident.* A  license  fee  is  not  necessarily  an  "occiipation  tax"  within  a  limiting 
clause." 

Equality  and  uniformity. — The  requirement  of  imiformity  is  satisfied  where 
the  taxes  are  uniform  upon  the  same  class  within  the  territorial  limits  of  the 
levying  authority.*  It  is  necessary  that  the  tax  should  be  for  a  public  purpose 
and  subserve  the  interests  of  the  people.''  The  rule  applies  to  municipal  corpora- 
tions.® It  does  not  apply  to  licenses  imposed  under  the  police  power,^  nor  to  in- 
heritance taxes  which  are  not  upon  property.^"  Acts  exempting  property  of  chari- 
table institutions  from  taxation  are  valid  ;^*  but  the  rule  is  violated  by  a  town  charter 
relieving  property  within  the  town  from  payment  of  county  taxes.^^  A  license  tax 
on  dealers  in  a  commodity,  but  exempting  those  handling  such  of  it  as  had  already 
passed  through  a  licensed  dealer,  is  unreasonable  in  its  exemption.^'  In  determining 
whether  the  rule  has  been  violated,  property  escaping  taxation  altogether  cannot  be 
taken  into  account.^*  A  good  will  is  not  property  within  the  constitutional  require- 
ment of  equality  and  uniformity.^'  A  constitutional  amendment  providing  for  as- 
sessment of  property  under  general  laws  and  by  uniform  rules,  according  to  its  true 
value,  abrogates  special  laws  exempting  certain  property,  but  not  yet  accepted  so  as 
to  constitute  a  contract.^'  There  is  no  unconstitutional  discrimination  in  an  in- 
come tax  law,  exempting  from  its  operation  insurance  companies  taxed  under  other 
laws  on  their  premiums.^''  In  the  note  are  collected  laws  passed  on  in  this  connec- 
tion." 


4.  Corry  v.  City  Council  of  Baltimore,  96 
Md.  310. 

6.  Limit  on  occupation  tax — Brown  v. 
Galveston    (Tex.)    75    S.    W.    488. 

6.  Eltlngr  V.  Hickman,  172  Mo.  237;  Day 
V.  Roberts  (Va.)  43  S.  E.  362;  State  v. 
Beng-sch,  170  Mo.  81. 

Inequality  as  taking-  property  without  due 
process,  see  ante,  §  15;  as  denying  equal  pro- 
tection of  law,  ante,  §  10. 

7.  State  V.   Froehlich    (Wis.)    94  N.  W.   50. 

8.  Mayo  v.  Dover  &  Foxcroft  Village  Fire 
Co.,  96  Me.  639;  State  v.  Savage  (Neb.)  91 
N.  W.  716.  A  constitutional  provision  re- 
quiring uniformity  in  equality  of  taxation 
and  giving  municipalities  the  power  to  levy 
taxes  in  such  a  manner  as  shall  be  pre- 
scribed by  law,  does  not  impliedly  prohibit 
the  legislature  from  granting  a  municipal- 
ity the  right  to  levy  taxes  to  pay  particu- 
lar debts  on  the  theory  that  the  manner 
of  Ipvvin^  could  not  thereby  be  prescribed, 
as  the  manner  of  levying  taxes  is  fixed  by 
g'eneral  laws — State  v.  City  of  Bristol 
(Tenn.)  70  S.  "W.  1031. 

9.  State  v.  Hammond  Packing  Co.  (La.) 
?A  So.  368.  "Vehicle  taxes — Terre  Haute  v. 
Kersey,  159  Ind.  300;  Ft.  Smith  v.  Scruggs. 
70  Ark.  549.  Licenses  must  not  be  so  higTi 
as  to  amount  to  a  tax  on  the  business — 
Seattle  v.  Bartol   (Wash.)    71   Pac.   735. 

10.  Sess.  Laws  1901,  p.  68,  §  2 — State  v. 
Clark,  30  Wash.  439,  71  Pac.  20.  The  Min- 
nesota inheritance  tax  law  making  trans- 
fers as  between  collaterals  taxable  at  their 
value  when  they  exceed  $5,000.00,  and  that 
as  to  lineal  descendants  the  tax  shall  be 
Imposed  only  on  the  excess  over  and  above 
the  fixed  valuation  of  $5,000.00,  violates  the 
constitutional  provision  authorizing  an  in- 
heritance tax.  but  requiring  the  tax  above 
any    exempted    sum    to    be    uniform     (Laws 


Minn.  1901,  c.  215) — State  v.  Bazille,  87  Minn. 
500. 

11.  People  V.  Miller.  116  N.  T.  St.  Rep. 
621;  W.  C.  Peacock  &  Co.  v.  Pratt  (C.  C.  A.) 
121  Fed.  772. 

12.  Day   v.    Roberts    (Va.)    43   S.    E.    362. 

13.  No  reasonable  ground  for  classifica- 
tion— Standard  Oil  Co.  v.  City  of  Spartan- 
burg   (S.    C.)    44   S.   E.   377. 

14.  State  V.   Savage    (Neb.)    91    N.   W.    716. 

15.  Hart  v.   Smith,   159  Ind.   182. 

16.  Cooper  Hospital  v.  City  of  Camden, 
68  N.  J.  Law,  691. 

17.  W.  C.  Peacock  &  Co.  v.  Pratt  (C.  C.  A.) 
121    Fed.    772. 

18.  Unequal  and  not  nniform:  County 
tax  to  reimburse  general  fund  for  moneys 
paid  to  benefit  township — Harper  v.  New 
Hanover  County  Com'rs  (N.  C.)  45  S.  E. 
526.  The  creation  of  a  pension  fund  for 
school  teachers  out  of  teachers'  salaries — 
Hibbard  v.  State.  65  Ohio  St.  574.  General 
tax  of  certain  amount  and  in  addition  to  the 
water  rates  on  each  lot  having  a  building 
on  it  and  abutting  on  a  street  having  serv- 
ice mains — Village  of  Lemont  v.  Jenks,  197 
111.    363. 

Rule  not  violated:  Act  for  licensing  tran- 
sient merchants  and  excepting  therefrom 
sheriffs,  assignees  and  other  public  officers— 
Levy  V.  State  (Ind.)  68  N.  E.  172.  A  local 
option  law  imposing  a  penalty  different  from 
that  imposed  by  general  dram  shop  act — 
Ex  parte  Handler  (Mo.)  75  S.  W.  920.  Laws 
taxing  gross  premiums  of  insurance  com- 
panies where  imposed  on  foreign  and  do- 
mestic companies  alike — Northwestern  Mut. 
Life  Ins.  Co.  v.  Lewis  &  Clarke  County 
(Mont.)  72  Pac.  982.  An  act  exempting  the 
owner  of  mortgaged  property  from  taxation 
on  the  mortgage  (Burns'  Rev.  St.  1901,  § 
8417A;    Horner's    Rev.    St.    1901,    §    6272A)  — 


600 


CONSTITUTIONAL  LAW. 


§   23 


The  constitutional  provision  authorizing  taxation  of  persons  engaged  in  specific 
occupations,  by  the  general  law  of  uniform  application  as  to  classes  taxed,  does  not 
prevent  a  classification  of  persons  for  that  purpose."  The  federal  requirement  of 
uniformity  of  duties  and  imposts  does  not  apply  to  taxation  by  states  or  territories.'^" 

Double  taxation. — The  prohibition  of  double  taxation  has  no  reference  to  taxa- 
tion by  the  state  and  again  by  its  governmental  division,"  or  to  taxation  in  another 
state,"  but  the  same  property  cannot  be  taxed  in  two  places  for  the  same  purpose." 
A  tax  may  be  levied  to  restore  and  reimburse  a  fund  raised  by  taxation.^*  An  intent 
to  impose  it  will  not  be  presumed.^"*  Corporate  stocks  are  not  taxable  in  addition 
to  its  property,*'  but  taxation  of  shares  to  the  holders  and  landed  property  to  the 
corporation  has  been  upheld.*^  A  license  tax  on  an  insurance  company  and  also  its 
agents  is  valid,-*  as  well  as  a  license  for  street  use  by  vehicles  otherwise  taxed.  ^® 

Complaint  of  violation  of  the  rule  may  only  be  made  by  persons  affected.^" 

Exemption  clauses  are  strictly  construed.'^  Under  a  constitutional  provision 
reserving  the  right  to  exemption  to  the  legislature,  there  is  a  valid  exemption  of  an 


State  V.  Smith,  158  Ind.  543.  An  act  im- 
posing a  license  tax  on  agents  of  packing 
houses  doing  business  in  the  state — Stew- 
art V.  Kehrer,  115  Ga.  184.  An  act  tax- 
ing sellers  of  cigarettes  at  a  specified  amount 
per  annum,  and  inapplicable  to  jobbers  do- 
ing an  interstate  business  with  customers 
outside  the  state — Cook  v.  Marshall  County 
(Iowa)  93  N.  W.  372.  Occupation  taxes 
levied  under  a  charter  allowing  municipal- 
ities to  divide  the  various  occupations  into 
different  classes  and  imposing  taxes  on  all 
such  classes — Kansas  City  v.  Richardson,  90 
Mo.  App.  450.  Laws  placing  an  officer  on 
a  salary  instead  of  under  fees  as  formerly, 
objected  to  on  the  theory  that  under  the 
fee  system  such  officer  could  waive  his  fees, 
but  under  the  statute  every  citizen  must 
pay  the  fee  and  consequently  it  was  a  tax — 
Verges  v.  Milwaukee  County  (Wis.)  93  N. 
W.  44.  A  road  tax  law  exempting  from  its 
provision,  property  within  municipalities 
where  work  on  streets  is  done  under  laws 
relating  to  municipalities,  on  the  ground 
that  the  said  property  was  not  equally 
taxed  for  road  purposes  in  proportion  to  its 
value  (Act.  Cal.  1883,  §  2) — Miller  v.  Kern 
County,  137  Cal.  516,  70  Pac.  549.  An  act 
providing  that  all  personal  property  ex- 
cept certain  classes  shall  be  listed  for  tax- 
ation in  the  township  in  which  the  tax- 
payer resides,  the  residence  of  tlie  corpora- 
tion or  partnership  would  be  deemed  to  be 
in  a  township  in  which  the  particular  office 
or  place  of  business  is  situated,  It  not  be- 
ing the  purpose  of  the  constitution  to  re- 
strict the  legislature  from  prescribing  reg- 
ulations as  to  situs  of  personalty  (Laws 
1899.  c.  15,  §  14) — City  of  Winston  v.  City  of 
Salem,  131  N.  C.  404.  A  valuation  of  realty 
on  which  mine  is  situated,  at  the  price  that 
the  mine  would  sell  for  at  a  fair,  volun- 
tary sale  for  cash,  and  other  property  at 
value  at  which  it  would  be  taken  in  pay- 
ment of  a  just  debt  from  a  solvent  debtor 
(1  Ballinger's  Ann.  Codes  &  St.  §  1698 — Eu- 
reka Dist.  Gold  Min.  Co.  v.  Ferry  County, 
28    Wash.    250.    68    Pac.    727. 

19.  Rosenbloom   v.   State    (Neb.)    89  N.   W. 
1053,    57    L.    R.    A.    922. 

20.  W^.  C.  Peacock  &  Co.  v.  Pratt  (C.  C.  A.) 
121  Fed.   772. 

21.  The    fact    that    a    city    charter    allows 
the  levy  of  a  license  tax  on  insurance  com- 


panies, and  a  legislative  act  requires  com- 
panies to  pay  a  tax  does  not  authorize 
double  taxation,  but  merely  different  meth- 
ods of  taxation — City  of  Lamar  v.  Adams, 
90    Mo.    App.    35. 

22.  Griggs  Ry.  Const.  Co.  v.  Freeman,  108 
La.    435. 

23.  Township  where  the  taxpayer  resides, 
and  also  by  another  township — Stephens  v. 
Smith,    30   Ind.   App.    120. 

24.  County  tax  to  pay  expenses  of  pa- 
tients in  state  insane  hospital  supported 
by  state  tax — Bon  Homme  County  v.  Berndt, 
15  S.  D.  494. 

25.  Wright  V.  Louisville  &  N.  R.  Co.  (C. 
C.    A.)    117   Fed.    1007. 

26.  Shares  of  stock  held  by  resident  In 
foreign  corporation  taxed,  and  property  of 
the  corporation  is  taxed  in  the  state  where 
located — Stroh  v.  Detroit  (Mich.)  90  N.  W. 
1029. 

27.  Illinois  Nat.  Bank  v.  Klnsella.  201  111. 
3L 

28.  City  of  Farmington  v.  Rutherford,  94 
Mo.    App.    328. 

29.  Ft.  Smith  V.  Scruggs.  70  Ark.  549. 

30.  Corliss  V.  Village  of  Highland  Park 
(Mich.)    93   N.   W.    254. 

31.  Louisiana  &  N.  W.  R.  Co.  v.  State 
Board  of  Appraisers,  108  La.  14.  Exemption 
from  taxation  of  property  used  exclusively 
for  charitable  purposes,  a  part  of  a  build- 
ing not  used  will  not  be  exempt,  though 
the  rent  therefrom  Is  used  for  charitable 
purposes — State  v.  Board  of  Equalization 
(S.  D.)  92  N.  W.  16.  Within  the  constitu- 
tional provision  enumerating  property  ex- 
empt from  taxation  and  declaring  invalid 
all  laws  exempting  other  property,  an  in- 
spection law,  in  effect  a  revenue  law  ex- 
empting certain  kinds  of  liquors  Is  uncon- 
stitutional— State  v.  Bengsch,  170  Mo.  81. 
An  exemption  is  a  contract  within  the  con- 
stitution which  may  not  be  Impaired  by  tax- 
ation— Bancroft  v.  "^^icomico  County  Com'rs, 
121  Fed.  874.  A  sugar  refinery  Is  regarded 
as  a  "manufacturer" — State  v.  American 
Sugar  Refining  Co.,  108  La.  603.  The  term 
"produce  of  the  state"  in  a  constitutional 
provision,  exempting  articles  manufactured 
from  produce  of  the  state,  from  taxation,  in- 
cludes logs  grown  on  soil  of  the  state  lying 
at  a  mill  to  be  cut  up  into  lumber — Benedict 
V.  Davidson  County  (Tenn.)   67  S.  W.  806. 


d  23 


TAXATION. 


607 


asylum  from  taxation  in  a  charter  granted  thereto  under  such  statute.^'  An  exemp- 
tion of  property  leased  for  revenue  by  a  charitable  institution  and  not  embraced  in 
its  charter  is  repealed  by  a  provision  in  the  constitution  afterwards  adopted,  ex- 
empting only  property  of  charitable  institutions  not  used  or  leased  for  purposes  of 
private  or  corporate  income.^*  Exemptions  cannot  be  made  by  way  of  commuting 
taxes,'*  but  an  act  exempting  railroad  company  from  payment  of  taxes  for  a  term  of 
years,  in  compromise  of  a  claim  of  the  railroad  against  the  state,  was  sustained.^' 
Tinder  the  constitutional  provision  that  the  salaries  of  judges  shall  not  be  diminish- 
ed during  their  continuance  in  oflBce,  the  salaries  of  the  judges  of  the  supreme  court 
are  exempt  from  taxation  either  direct  or  otherwise." 

Levy,  assessment,  collection,  and  eqiuilization.^'' — The  constitutional  provision 
that  the  legislature  shall  provide  for  an  annual  tax  sufficient  to  defray  the  estimated 
expenses  of  the  state  for  each  year  limits  the  annual  tax  to  an  amount  sufficient  to 
defray  such  expenses.^'  A  constitutional  provision  that  the  treasurer  shall  be  the 
collector  of  taxes  is  violated  by  an  act  authorizing  the  assessor  to  collect  taxes  on 
personal  property.'®  Taxes  must  ordinarily  be  based  on  valuation.*"  Ordinances 
imposing  occupation  taxes*^  and  assessments  for  public  improvements  are  not  with- 
in the  constitutional  provision  requiring  taxation  in  proportion  to  value.*^  Laws 
providing  for  water  frontage  assessment  do  not  violate  either  state  or  federal  con- 
stitution.*' Alfalfa  will  not  be  regarded  as  an  "improvement"  so  as  to  require 
separate  assessment.** 

Public  improvements. — Under  a  constitutional  provision  prohibiting  the  state 
from  contracting  any  debt  for  works  of  internal  improvement,  the  state  is  without 
power  to  appropriate  money  for  the  construction  and  strengthening  of  a  levee  system 
on  navigable  river,  though  the  construction  of  a  levee  might  incidentally  avert  possi- 
ble peril  to  life.*^  The  constitution  of  Ohio  prohibits  the  raising  of  money  directly 
or  indirectly  by  assessment,  to  pay  compensation,  damages  or  costs  for  land  appro- 
priated by  the  public  for  public  use.*'  An  act  amending  an  act  incorporating  a  city 
is  not  rendered  unconstitutional  by  reason  of  it  requiring  reimbursement  of  property 
owners  for  paving  assessments  by  rebates  from  the  road  tax.*^     Constitutional  prin- 


32.  St.  Anna's  Asylum  v.  Parker,  109  La. 
592. 

33.  Female  Orphan  Soc.  v.  Board  of  As- 
sessors,  109  La.   537. 

34.  An  act  levying  a  tax  on  gross  pre- 
miums to  be  in  full  of  state  and  local  taxes 
— Raymond  v.  Hartford  Fire  Ins.  Co.,  196 
111.   329. 

85.  State  v.  Colorado  Bridge  Co.  (Tex. 
Civ.  App.)    75   S.  W.   818. 

36.  In  re  Taxation  of  Judge's  Salaries, 
131  N.   C.   692. 

37.  There  is  no  violation  of  a  home  rule 
constitutional  provision  in  a  law  requiring 
franchise  assessment  by  state  officers — Peo- 
ple V.  State  Board  of  Tax  Com'rs,  174  N.  Y. 
417. 

38.  State  V.  Froehlich  (Wis.)  94  N.  W.  50. 

39.  Mutual  Life  Ins.  Co.  v.  Martlen,  27 
Mont,    437,    71    Pac.    470. 

An  act  authorizing  a  collector  to  assess 
personal  property  he  finds  unassessed  by  the 
a.ssessor  is  constitutional — Powell  v.  McKee 
(Miss.)  32  Mo.  919,  following  State  Revenue 
Agent  v.  Tonella,  70  Miss.  701  and  line  of 
decisions. 

40.  The  beer  inspection  fees  provided  by 
the  laws  of  Missouri  are  a  tax  and  uncon- 
stitutional as  not  being  levied  on  a  cash 
valuation    (Rev.  St.   Mo.   1899,   c.   117,  art.   4, 


§  7691)— State  v.  Bby,  170  Mo.  497.  An 
inspection  law  providing  for  a  state  license 
tax  on  distilled  liquors  and  exempting  from 
its  provisions,  liquors  intended  for  export 
and  domestic  wines,  violates  the  constitu- 
tional provision  that  all  property  subject 
to  taxation  shall  be  taxed  in  proportion  to 
its  value — State  v.  Bengsch,  170  Mo.  81. 

41.  Kansas  City  v.  Richardson,  90  Mo. 
App.    450. 

42.  Jones  V.  Holzapfel,  11  Okl.  405,  68  Pac. 
511. 

43.  State  v.  Trustees  of  Macalester  Col- 
lege, 87  Minn.  165;  Minneapolis  &  St.  L.  R. 
Co.  V.  Lindquist  (Iowa)  93  N.  W.  103;  He- 
man  V.  Gilliam,  171  Mo.  258.  Benefits  must 
be  equal  and  uniform — Morse  v.  Omaha 
(Neb.)    93    N.   W.    734. 

44.  Miller  v.  Kern  County,  137  Cal.  516, 
70   Pac.   549. 

45.  State  v.  Froehlich,   115   Wis.   32. 

46.  The  constitution  does  not,  however, 
alTect  or  prohibit  the  raising  of  money  by 
assessment  to  pay  for  the  Improvement  of 
streets,  etc.,  so  long  as  the  assessn;ent  does 
not  exceed  the  special  benefits — Layton  v. 
Bauman,   66  Ohio  St.   379. 

47.  Pennsylvania  Act,  May  18,  1871 — 
Franklin  v,  Hancock,  204  Pa,  110. 


608 


CONSTITUTIONAL  LAW. 


§  23 


ciples  applicable  to  taxation  for  public  improvements  are  applicable  to  assessments 
for  the  construction  of  sewers.*® 

Debt  /tmif.— The  words  "debt"  or  "indebtedness"  refer  to  indebtedness  created 
by  contract,"  and  are  used  in  their  ordinary  sense."^"  Current  expenses  for  the  year 
are  not  to  be  counted  as  an  'ixisting  debt."  There  is  no  increase  by  issue  of  bonds 
to  be  exchanged  at  par  for  a  greater  or  equal  amount  of  pre-existing  legal  bonds 
bearing  a  greater  interest,"  nor  by  exchange  of  bonds  for  warrants,  where  the  change 
will  diminish  rather  than  increase  indebtedness."  City  bonds  bearing  interest  and 
secured  by  mortgage  on  a  water  works  erected  with  the  proceeds  are  a  debt  of  the 
city,  though  they  are  to  be  payable  out  of  a  special  tax  for  that  purpose  in  instal- 
ments." A  contract  requiring  the  city  to  pay  for  a  plant  in  the  form  of  rental  con- 
stitutes an  indebtedness"  from  the  day  of  the  execution  of  the  contract,"  though 
payment  of  rentals  at  specified  future  times  is  not  a  "current  expenditure,""  nor  is 
a  contract  to  pay  annual  rentals  an  indebtedness  for  the  aggregate  amount  of  the 
rentals."  Amount  of  debt  is  determined  by  adding  to  the  principal  of  all  outstand- 
ing debts  the  amount  of  accrued  and  overdue  interest."  A  percentage  of  "value" 
is  the  assessed  value  and  not  the  actual  value  of  taxed  property.'"  Funds  included 
among  the  cash  resources  of  the  cit}^  and  set  apart  pursuant  to  statutory  authority  to 
meet  a  specific  indebtedness  should  be  deducted  from  the  city's  liabilities,  and  funds 
not  so  set  apart  should  not  be  deducted.®^  Under  a  charter  provision  limiting  in- 
debtedness to  a  fixed  sum  and  providing  that  for  the  purpose  of  acquiring  and  estab- 
lishino-  a  water  works  and  sewerage  system  a  further  indebtedness  may  be  incurred, 
indebtedness  already  incurred  or  to  be  incurred  for  such  water  works  or  sewerage 
system  is  not  to  be  considered  in  the  fixed  limitation.'^ 

Debts  of  superior  or  co-extensive  but  distinct  public  corporations  are  not  reck- 
oned." The  indebtedness  of  a  water  district,  an  integral  part  of  a  municipality, 
is  not  an  indebtedness  of  the  municipality." 

A  city  may  not  exceed  the  limit,  though  it  has  in  its  treasury  a  part  of  the 


48.  White  V.  Gove  (Mass.)  67  N.  E3.  359. 
Statutes  1867.  c.  106 — Smith  v.  Worcester, 
182  Mass.  232.  59  L.  R.  A.  728.  An  act  al- 
lowing cities  to  build  sewers  Is  not  made 
unconstitutional  by  a  provision  allowing  a 
city  when  constructing  a  sewer  to  lay  the 
necessary  pipes  for  hose  connections  to  the 
curb  line  of  abutting  lots  and  charge  the 
cost  thereof  to  the  abutting  premises — Van 
Wagoner  v.  City  of  Paterson,  67  N.  J.  Law, 
456. 

49.  O'Bryan  v.  Owensboro,  24  Ky.  L.  R. 
469.   68   S.   W.   858. 

50.  Does  not  Include  unearned  interest — 
Epping  V.  Columbus  (Ga.)  43  S.  E.  803.  The 
term  "indebtedness"  in  Montana  constitu- 
tion means  what  a  city  owes  irrespective 
of  demands  which  it  might  hold  against 
others — Jordan  v.  Andrus,  27  Mont.  22,  69 
Pac.    118. 

.M.  O'Bryan  v.  Owenaboro,  24  Ky.  L.  R. 
469.    68    S.    W.    858. 

.•52.     Hyde  v.  Ewert    (S.  D.)    91  N.  W.   474. 

."i3.  Walling  V.  Lummis  (S.  D.)  92  N.  W. 
1063. 

54.  Swanson  v.  City  of  Ottumwa  (Iowa) 
91  N.  W.  1048.  59  L.  R.  A.  620.  But  see 
contra  City  of  Ottumwa  v.  City  Water  Sup- 
ply Co.  (C.  C.  A.)  119  Fed.  315,  59  L.  R.  A. 
604. 

55,  56.  Baltimore  &  O.  S.  W.  R.  Co.  v. 
People,   200  111.  541. 


57.  City  of  Centerville  v.  Fidelity  Trust 
&  Guaranty  Co.    (C.   C.  A.)    118  Fed.  332. 

58.  Fidelity  Trust  &  Guaranty  Co.  v. 
Fowler  Water  Co.,  113  Fed.  560;  Denver  y. 
Hubbard    (Colo.  App.)    68  Pac.   993, 

59.  Epping  V.  Columbus  (Ga.)  43  S.  E. 
803. 

60.  City  Water  Supply  Co.  v.  City  of  Ot- 
tumwa,   120    Fed.    309. 

61.  Kronsbein  v.  Rochester,  76  App.  Dlv. 
(N.  T.)   494. 

62.  Los  Angeles  v.  Hance,  137  Cal.  490. 
70   Pac.   475. 

63.  A  constitutional  limitation  of  the 
amount  of  indebtedness  of  municipality, 
does  not  require  the  inclusion  of  the  state 
debt — Lancaster  School  Dist.  v.  Robinson- 
Humphrey    Co.,    64    S.    C.    545. 

School  corporation  having  the  same  bound- 
aries as  the  city — Hyde  v.  Ewert  (S.  D.)  91 
N.  W.  474.  Interest  bearing  notes  given  by 
school  trustees  of  a  school  city,  to  raise 
money  for  school  purposes,  are  not  to  be 
included — Heinl  v.  Terre  Haute  (Ind.)  66  N. 
E.    450. 

A  library  board  is  not  included  in  a  lim- 
itation enumerating  counties,  cities,  towns, 
townships,  boards  of  education  and  school 
districts — Robertson  v.  Board  of  Library 
Trustees,   136   Cal.   403,   69   Pac.   88. 

64.  Holroyd  v.  Town  of  Indian  Lake,  40 
Misc.  (N.  Y.)  75;  Kennebec  Water  Dist.  v. 
City  of  Waterville,    96   Me.    234. 


§  23 


FISCAL  AFFAIRS. 


609 


funds  necessary  to  discharge  the  obligation  and  may  be  able  to  collect  the  remainder 
by  the  time  the  obligation  matures.^' 

An  act  allowing  a  court  to  direct  the  levy  of  a  tax  on  a  showing  of  its  necessity 
does  not  authorize  a  levy  in  excess  of  the  constitutional  limit."® 

Necessary  expenditures  are  sometimes  allowed  for  maintenance,  though  limit  has 
been  exceeded;®^  also  to  provide  specified  public  improvements.**  Where  bonds 
have  been  issued  in  excess  of  the  constitutional  authority  and  all  were  created  by 
the  same  ordinance  and  sold  at  the  same  time,  each  bond  is  valid  to  the  extent  of 
it-s  proportionate  share  of  the  debt  lawfully  contracted.®' 

Submission  of  question  of  indebtedness. — The  legislature  may  enact  necessary 
legislation  to  make  effective  a  constitutional  provision  allowing  public  assent  to  an 
increase.''"  It  is  not  necessary  to  the  validity  of  a  special  election  to  obtain  con- 
sent of  the  taxpayers  of  a  town  to  incur  a  debt,  that  the  debt  for  each  particular 
purpose  should  be  specifically  set  out.^^  The  majority  intended  by  a  constitution 
is  a  majority  of  the  votes  cast  on  that  question  at  a  general  election,  though  the 
majority  is  not  a  majority  of  all  electors  voting  at  the  election.''^  In  Georgia  the 
question  may  not  be  submitted  to  the  voters  in  connection  with  other  issues.'^' 
The  order  of  a  governmental  body  as  to  amount  to  be  raised  must  be  substantially 
followed.'^*  A  vote  to  exceed  a  limit  is  not  required  when  the  people  have  already 
voted  for  expenditures  which  with  existing  debts  exceed  the  limit.''' 

A  state  is  not  prevented  from  establishing  a  dispensary  and  making  the  city 
liable  for  its  maintenance,  by  a  constitutional  provision  forbidding  municipalities 
from  incurring  a  new  debt  without  the  consent  of  two-thirds  of  the  qualified  voters 
of  such  municipality.''" 

Provision  for  payment  of  debts. — In  many  states  it  is  required  that  provision 
for  payment  must  precede  creation  of  a  debt.''^  A  bonded  debt  is  not  "created" 
until  the  bonds  are  "issued,"  1.  e.,  until  they  are  sold.''* 


65.  City  Water  Supply  Co.  v.  City  of  Ot- 
tumwa,  120  Fed.  309.  A  city  is  not  exempt 
from  a  constitutional  debt  limitation  by  the 
fact  tliat  it  has  sufficient  property  to  pay  for 
a  public  building-,  and  it  was  the  Intent  of 
the  city  to  sell  the  property  for  that  pur- 
pose, where  there  was  no  action  on  the  part 
of  the  city  council  in  accordance  with  the 
Intent — Fourth  Nat.  Bank  v.  Dallas  (Tex. 
Civ.   App.)    73    S.    W.    841. 

66.  State   v.   Wabash   R.   Co.,   169  Mo.    56?. 

67.  Expenses  for  guards  to  prevent  de- 
struction of  property  (Ky.  St.  §  1241A)  — 
Hopkins  County  v.  St.  Bernard  Coal  Co.,  24 
Ky.  L.  R.  942.  70  S.  W.  289.  Labor,  election 
expenses,  guarding  quarantine  patients — 
Gladwin  v.  Ames,  30  Wash.  608,  71  Pac.  189. 
Light  and  water — Cain  v.  City  of  Wyoming, 
104  111.  App.  538.  Salaries — Laws  of  New 
York,  1901,  CO.  704-706 — McGrath  v.  Grout, 
171   N.  Y.   7. 

68.  Under  a  constitution  allowing  citi- 
zens to  increase  debt  to  a  certain  per  cent 
for  providing  water  for  irrigation  and  do- 
mestic purposes,  the  power  to  incur  an  addi- 
tional per  cent  of  indebtedness  for  water 
purposes  is  conferred  regardless  of  exist- 
ing indebtedness  for  otlier  purposes — Wells 
V.   Sioux   Falls    (S.   D.)    94   N.   W.    425. 

69.  Columbus  v.  W^oonsocket  Inst,  of  Sav- 
ings (C.  C.  A.)  114  Fed.  162.  Bonds  issued 
by  the  municipality  are  valid  only  to  the 
amount  that  a  tax  contemporaneously  levied 
would  pay  the  interest  and  create  a  sinking 
fund    of    the    per    cent    prescribed,    the    same 

Cur.   Law — 39. 


to  be  determined  by  the  next  preceding  as- 
sessment— Id. 

70.  State  V.  Quayle  (Utah)   71  Pac.  1060. 

71.  Gray   v.    Bourgeois.    107    La.    671. 

73.  Ballots  reading  "for  the  loan"  and 
"against  the  loan,"  are  sufficient  without 
specifying  the  purpose  and  nature  of  a 
proposed  loan — Tinkel  v.  Griffin,  26  Mont. 
426,    68   Pac.   859. 

73.  Cain  v.  Smith   (Ga.)   44  S.  E.  5. 

74.  A  resolution  for  reciting  an  Indebt- 
edness of  about  "$100,000,"  will  not  author- 
ize the  collection  of  a  tax  amounting  to 
"$132,000"— Peoria  &  P.  U.  Ry.  Co.  v.  People, 
198   111.  318. 

75.  Under  a  constitutional  provision  that 
the  debt  of  a  city  shall  not  exceed  seven 
per  cent  of  the  assessed  value  of  the  tax- 
able property,  nor  shall  It  incur  any  debt 
or  increase  its  indebtedness  to  an  amount 
exceeding  two  per  cent  of  such  assessed 
value  without  the  consent  of  the  electors 
construed — Keller  v.  Scranton,  202  Pa.  586. 

76.  Jacoby  v.  Dallis,   115  Ga.  272. 

77.  A  contract  by  a  municipality  to  pur- 
chase a  water  and  electric  light  plant  cre- 
ates a  debt  under  the  provision  that  no  debt 
shall  be  created  without  provision  being 
made  for  a  sinking  fund,  though  the  con- 
tract is  a  compromise  of  claims  against  tho 
city  In  favor  of  another  which  may  accrue 
in  the  future — City  of  Austin  v.  McCall,  95 
Tex.  565.  An  act  providing  for  the  estab- 
lishment of  a  dispensary  and  making  th« 
city    liable    for   Its   maintenance.    Is   not    op- 


610 


CONSTITUTIONAL  LAW. 


§  24 


Pullic  aid  donations  and  loans  of  credit.''^ — There  is  not  an  unconstitutional 
donation  by  an  ordinance  reimbursing  an  officer  for  expenses  incurred  in  removing 
nuisance  in  highway,®"  nor  by  an  ordinance  appropriating  money  to  reimburse 
property  owners  for  tlie  construction  of  a  water  pipe  to  connect  v^ith  the  city  wa- 
ter supply.*^  An  act  allowing  a  school  board  to  place  on  the  retired  list  teachers 
retired  prior  to  the  passage  of  the  act,  on  a  pension,  violates  the  constitutional  pro- 
vision forbidding  a  city  to  give  money  in  aid  of  any  individuals,  it  being  on  ac- 
count of  its  retroactive  operation  a  mere  gratuity.*^  Laws  making  it  the  duty  of 
school  districts  to  transport  scholars  from  remote  parts  of  the  district  to  attend 
school  do  not  authorize  diversion  of  public  funds  to  private  use.^^ 

Diversion  of  taxes  from  other  funds  to  a  special  road  district  newly  created  is 
not  a  grant  in  aid  of  individual  associations  or  corporations.**  There  is  no  pledg- 
ing of  credit  by  a  stipulation  in  a  contract  for  local  improvement,  that  the  city 
shall  not  be  liable  to  make  certain  payments  before  funds  applicable  thereto  shall 
have  been  collected,*"*  nor  by  insuring  public  property  in  a  mutual  insurance  com- 
pany.** 

§  24.  Schools  and  education;  school  funds. — A  constitutional  provision  mak- 
ing it  the  duty  of  the  legislature  to  establish  a  uniform  system  of  schools  is  vio- 
lated by  appointing  certain  persons  as  trustees  of  a  specified  district  for  twenty 
years.*^  Separate  schools  for  white  and  colored  children  may  be  maintained  un- 
der a  constitutional  provision  requiring  establishment  of  permanent  system  of 
public  schools.** 

Under  a  constitutional  provision  securing  to  the  school  fund  lands  under 
water  belonging  to  the  state,  such  lands  may  not  be  transferred  to  municipalities 
for  a  nominal  consideration.*®  Under  constitutional  provision  making  right  to 
participate  in  school  funds  dependent  on  the  fact  of  maintenance  of  a  school  for 
three  months  in  a  year,  a  school  district  organized  eight  months  before  the  time 
of  distribution  and  six  months  after  the  apportionment  is  not  entitled  to  share.®** 

The  legislature  is  often  denied  power  to  divert  any  portion  of  the  tax  raised 
for  school  purposes,®^  but  a  drainage  law  is  valid,  though  it  makes  public  school 
lands,  benefited,  liable  in  apportioning  cost  of  the  improvement.®^ 

§  25.  Commerce. — By  the  commerce  clause  the  federal,  to  the  exclusion  of 
the  state  governments,  is  given  the  power  to  regulate  commerce  which  passes  the 
borders  of  a  state.  This  clause  does  not  deprive  the  states  of  their  sovereign 
powers  respecting  persons  and  instrumentalities  engaged  in  interstate  and  for- 


posed  to  a  constitutional  provision  declaring 
that  municipal  corporations  shall  not  incur 
any  debt  until  a  provision  therefor  shall  be 
made — Jacoby  v.  Dallis.   115  Ga.   272. 

In  Georgia  the  constitution  does  not  re- 
quire that  provision  for  payment  should 
bo  made  before  its  creation — Epping  v.  Co- 
lumbus  (Ga.)   43  S.  E.  803. 

78.  City  of  Austin  v.  Valle  (Tex.  Civ. 
App.)  71  S.  W.  414. 

70.  Constitutional  provision  held  not  re- 
strictive of  the  power  of  counties  to  sub- 
scribe for  stock  In  any  railroad  company 
which  had  been  duly  Incorporated  and  in 
which  the  citizens  of  the  county  as  a  body 
have  a  general  interest  because  of  supposed 
benefits  to  be  derived  therefrom — Board  of 
Com'rs  V.  Coler  (C.  C.  A.)  113  Fed.  705. 

80.  State  V.  St.  Louis   (Mo.)    73  S.  W.  623. 

81.  State  V.  St.  Louis.  169  Mo.  31. 

83.  Laws  1900,  c.  725 — Mahon  v.  Board 
of  Education.  171  N.  T.  263. 


83.  School  Dlst.  No.  3  v.  Atzenweiler 
(Kan.)    73   Pac.    927. 

84.  Elting  V.  Hickman.  172  Mo.   237. 

85.  Kronsbeln  v.  Rochester,  76  App.  Div. 
(N.    Y.)    494. 

86.  Nor  by  giving  Its  premium  notes  for 
payment  of  assessments  to  meet  losses  in- 
curred by  the  company — French  v.  City  of 
Millville,   67   N.   J.   Law,    349. 

87.  Ellis   v.    Greaves    (Miss.)    34    So.   81. 

88.  Laws  1879.  p.  163,  c.  81 — Reynolds  v. 
Board  of  Education  (Kan.)  72  Pac.  274. 

89.  Henderson  v.  Atlantic  City  (N.  J.  Ch.) 
54  Atl.   533. 

90.  Deckerville  High  School  Dlst.  v. 
School  Dlst.  No.  3    (Mich.)    90  N.  W.   1064. 

01.  To  support  library — Board  of  Educa- 
tion V.  Board  of  Trustees,  24  Ky.  L.  R.  98,  68 
S.  W.  10. 

92.  The  money  goes  to  benefit  school 
property — State  v.  Henry,  28  Wash.  38,  68 
Pac.  368. 


§1A 


CONTEMPT. 


611 


eign  commerce,  but  forbids  regulation  of  the  commerce  itself,  and  it  leaves  to 
the  states  power  over  purely  domestic  commerce.  In  a  preceding  article^*  is  dis- 
cussed the  question,  what  is  a  proper  exercise  of  these  powers.  When  a  federal 
act  regulating  commerce  is  attacked  as  offending  a  provision  of  the  bill  of  rights, 
it  will  be  found  treated  under  the  appropriate  section  of  this  article. 

§  26.  Enactment  of  statutes  is  in  most  of  the  states  subject  to  restrictions 
against  local  or  special  laws,  against  repealing  or  amendatory  acts  which  do  not 
set  out  the  law  to  be  changed,  against  laws  embracing  more  than  one  subject  or  not 
clearly  expressing  that  subject  in  the  title  or  enacting  clause.  Such  provisions  will 
be  embraced  in  the  article  "Statutes,"  to  be  published  in  a  future  number. 

§  37.  Miscellaneous  provisions  other  than  foregoing.  Right  to  hear  arms. — 
The  constitutional  privilege  of  keeping  and  bearing  arms  is  not  infringed  by  an  act 
prohibiting  private  persons  from  carrying  deadly  weapons  within  the  limits  of 
municipalities  within  the  state.^* 

Religious  corporations. — The  constitutional  provision  that  no  religious  corpo- 
ration can  ever  be  established  in  the  state  is  not  violated  by  the  granting  of  a  char- 
ter to  an  institution  of  learning,  the  trustees  of  which  are  appointed  by  a  religious 
organization.®^ 

Right  to  require  information  hy  compulsion. — An  act  making  it  the  duty  of  a 
carrier  delivering  damaged  freight  to  a  consignee  to  locate  the  connecting  carrier 
liable  for  the  injury,  and  furnish  such  information  to  the  consignee,  is  not  uncon- 
stitutional, in  that  it  requires  information  by  a  statutory  compulsion  and  inflicts  a 
penalty  for  refusal  to  furnish  the  information  which  the  company  is  entitled  to 
withhold  if  it  so  desires.®" 

Usury  laws. — A  constitutional  provision  that  all  contracts  for  a  greater  than 
a  specified  rate  of  interest  per  annum  should  be  deemed  usurious  has  reference  only, 
to  contracts,  and  does  not  limit  the  power  of  the  legislature  with  regard  to  claims 
or  rights  that  may  be  created  otherwise  than  by  contract.®^ 

CONTEMPT. 


§  1.  Nature  of  a  Contempt. — A.  Elements. 
B.  Acts  of  Disobedience.  C.  Official  Miscon- 
duct and  Obstruction  of  Justice. 

§  2.     Defense,  Dxcuse,   or  Purgation. 

§  3.     Power  to  Punish  or  Redress, 

§  4.  Pleadings  and  Procedure  Before 
Hearing. 


§  5.     Hearing:;  Evidence?  Trial. 
§  6.     Findings    and   Judgment. 
§  7.     Punisliment;    Fine   and    Conunltmenti 
Furtlier  Proceedings. 

§  8.     Disoliarge  or  Pardon. 
S  9.     RevieiT. 


§  1.  Nature  of  a  contempt  and  what  constitutes  one.  A.  Elements  of  con- 
tempt and  nature  of  proceeding. — Contempt  must  be  willful  and  the  failure  to 
obey  the  direction  of  the  court  must  not  arise  from  mere  inability,®*  or  from  the 
acts  of  others  without  one's  knowledge  and  control,®®  and  where  the  circumstances 
are  such  that  it  can  fairly  be  inferred  that  a  party  acted  with  good  intention  and 
not  in  violation  of  his  obligations  to  the  court  and  other  parties,  he  cannot  be  held 


93.  Commerce. 

94.  Legislature  has  undoubted  power  In 
the  exercise  of  Its  police  power  to  prohibit 
the  carrying  of  concealed  deadly  weapons 
(Idaho  Act,  Feb.  4,  1889) — In  re  Brickey 
(Idaho)   70  Pac.  609. 

95.  State  V.  Board  of  Trustees  (Mo.)  74  S. 
W.  990. 

96.  Central  of  Georgia  Ry.  Co.  v.  Murphey, 
116  Ga.   863. 

97.  Galveston  &  W.  Ry.  Co.  v.  Galveston 
(Tex.)    74   S.  W.   537. 


98.  The  intent  to  defy  the  court  must 
clearly  appear — Kahlbon  v.  People,  101  111. 
App.  567.  A  mere  failure  to  comply  with  a 
decree  subjecting  a  party  to  a  fine,  cannot 
be  declared  contempt — ^Moseley  v.  People, 
101    111.    App.   564. 

99.  One  restrained  from  diverting  waters 
of  a  lake  is  not  guilty  of  contempt  because 
dams  constructed  for  purpose  of  retaining 
the  waters  were  removed  by  others  without 
his  knowledge — Stock  v.  Jefferson  Tp.  (Mich.) 
92  N.  W.   769. 


612 


CONTEMPT, 


§   IB 


guilty  of  contempt  ;*  nor  can  there  be  contempt  of  an  order  not  only  not  recorded 
but  actually  not  made  till  a  date  following  that  of  the  alleged  contempt;  hence  or- 
ders previously  made  cannot  be  modified  by  nunc  pro  tunc  orders,  nor  can  such 
orders  take  the  place  of  orders  intended  to  be  made  but  which  were  not  made,  so 
as  to  justify  proceedings  for  contempt.^  The  contemnor  must  have  had  notice  or 
been  served  when  the  act  was  done.^  It  is  not  "willful"  to  withhold  obedience  of 
an  order  which  is  immediately  appealed  and  superseded,*  nor  to  hold  property  as 
against  a  receiver  under  a  claim  of  right."*  Where  a  stay  of  proceedings  on  a  mo- 
tion is  granted  until  hearing  and  determination  thereof,  a  party  is  not  liable  for 
contempt  in  proceeding  after  the  motion  was  denied,  because  he  did  not  await  entr} 
of  a  formal  order  on  the  decision.*  It  must  appear  that  a  right  or  remedy  of  a 
party  in  the  cause  has  been  destroyed  or  prejudiced.''  One  with  actual  knowledge 
of  an  injunction  may  be  punished  for  contempt  in  violation,  tliough  not  a  party  to 
the  suit,  or  in  privity  with  any  party  therein,  or  served  with  process  in  it;'  but 
where  an  order  for  pa}TQent  of  money  was  modified  and  affirmed,  but  the  modified 
order  was  not  served  on  the  party  and  no  demand  was  made  of  him,  he  could  not 
be  held  guilty  of  contempt  for  failure  to  pay.®  The  order  must  be  in  certain  terms, 
else  only  a  technical  contempt  is  committed."  Invalidity  of  an  order  will  not 
prevent  punishment  for  a  criminal  contempt.^*  Disobedience  of  a  void  order  eject- 
ing plaintiff  from  land  and  forbidding  his  re-entry  is  not  contempt.^^ 

Civil  or  criminal. — Proceedings  for  contempt  are  criminal  when  conducted  to 
preserve  the  dignity  of  the  courts  and  punish  disobedience  of  their  order,  and  civil 
when  instituted  to  enforce  the  rights  of  parties  by  compelling  obedience  to  orders, 
judgments  or  decrees,  and  a  proceeding  against  judges  of  a  county  court  to  compel 
compliance  with  mandamus  directing  them  to  levy  a  tax  to  pay  a  judgment  against 
the  county  is  a  civil  contempt.^'  A  contempt  is  not  criminal  where  defendant  is 
required  to  pay  a  fine  and  costs  to  plaintiff,  since  in  criminal  contempt  the  fine  be- 
longs to  the  public  and  costs  are  not  allowed.^* 

§  1.  B.  Acts  in  disobedience  of  court. — A  defendant  in  supplementary  pro- 
ceedings who  violates  an  injunctive  order  by  using  money  to  his  credit  on  deposit  in  a 
bank  is  in  contempt.^"  Forcible  prevention  of  use  of  a  dock  by  other  parties  in  viola- 
tion of  an  injunction  against  obstruction  of  their  use  is  contempt.^®  Entry  on  the 
mining  claim  of  another,  merely  to  post  notices  of  a  discovery  of  quartz  lodes  with  an 


1.  Proceedings  for  contempt  for  failure 
to  pay  rent  to  a  receiver  on  order  of  the 
the  court — Moore  v.  Smith.  74  App.  Div.  (N. 
Y.)    629. 

3.     Gardner  v.  People,   100  111.  App.    254. 

3.  Fletcher  v.  McKeon.  74  App.  Div.  (N. 
T.)  231;  Schultz  v.  Luft.  74  App.  Div.  (N.  T.) 
628. 

4.  Failure  to  reinstate  dismissed  officer 
during  two  hours  elapsing  between  service 
order  appeal  therefrom  (Code  Civ.  Proc.  §  8, 
subd.  2) — Croker  v.  Sturgis,  38  Misc.  (N.  Y.) 
596. 

5.  State  V.  Denham.  30  V\'^ash.  643,  71  Pac. 

196. 

6.  Dady  v.  O'Rourke,  71  App.  Div.  (N.  Y.) 

557. 

7.  Application  to  punish  purchaser  in 
foreclosure  for  failure  to  complete  his  pur- 
chase— Dunlop    V.    Mulry,    40    Misc.     (N.    Y.) 

131. 

8.  Ex  parte  Stone  (Tex.  Or.  App.)  72  S. 
W.  1000;  Chisolm  v.  Caines,  121  Fed.  397. 
Rev.  St.  1899.  §  3643 — In  re  Coggshall  (Mo. 
App)   75  S.  W.  183.     He  may  be  required  to 


restore  the  status  at  issuance  of  writ — 
Murphey  v.  Harker,  115  Ga.  77;  Ex  parte 
Richards,  117  Fed.  658.  Injunction  to  stay 
prosecution  of  a  divorce  suit  in  another 
state — Kempson  v.  Kempson  (N.  J.  Law) 
52  Atl.   360,   625. 

9.  Code  Civ.  Proc.  §  2268,  requires  both  a 
service  of  the  order  requiring  payment  and 
a  demand  for  the  money — Flor  v.  Flor,  73 
App.  Div.    (N.  Y.)    262. 

10.  Rumney  v.  Donovan  (Mont.)  72  Pac. 
305. 

11.  Elmstedt  v.    People,   102   111.   App.    231. 

12.  The  rights  of  a  party  cannot  be  preju- 
diced In  advance  of  the  trial  of  the  main  is- 
sue— Forman  v.  Healey,  11  N.   D.   563. 

13.  In  re  Nevitt   (C.  C.  A.)    117  Fed.  44S. 

14.  Code  Civ.  Proc.  §§  8.  9 — Mutual  Milk 
&  Cream  Co.  v.  Tietjen,  73  App.  Div.  (N.  Y.) 
532. 

15.  Harvey  v.  Arnold,  116  X.  Y.  St.  Rep 
155. 

16.  Stolts  V.  Jackson.  82  App.  Div  (N.  Y.) 
81. 


I 


§  CI 


OFFICIAL  MISCONDUCT. 


613 


intention  to  locate  them,  is  not  a  violation  of  an  order  restraining  the  continuance 
and  trespass  by  sinking  shafts  and  other  mining  devices.^^  A  corporation  will  be 
liable  to  a  fine  for  contempt  where  through  carelessness  of  its  officers  its  employes 
violate  an  injunction  against  making  or  selling  a  patented  article.^*  Contempt 
proceedings  will  not  lie  against  the  secretary  and  treasurer  of  a  labor  organization 
for  refusing  a  transfer  card  to  another  division  of  the  order  not  previously  sought 
by  the  applicant,  though,  in  mandamus  proceedings,  the  particular  division  of  the 
labor  organization  had  been  commanded  to  restore  the  relator  to  rights  possessed 
before  his  expulsion.^*  Holding  a  meeting  near  mines  in  order  to  influence  miners 
to  strike  by  arguments  and  threats  of  violence  in  violation  of  an  injunction  restrain- 
ing the  assembling  of  defendants  at  or  near  the  mines  is  a  disobedience.^"  One 
restrained  from  selling  liquor  under  a  void  license  is  not  thereby  placed  in  con- 
tempt by  procuring  a  license  under  the  law  and  selling  under  it.^^  Failure  to  pay 
alimony  may  be  punishable  as  a  contempt.^^  Ceasing  to  pay  alimony  after  a  rec- 
onciliation is  not  contempt.^' 

§  1.  C.  Official  misconduct,  and  obstruction  or  perversion  of  justice. — An  at- 
torney or  officer  of  justice  is  guilty  who  advises  or  directs  acts  resulting  in  contempt,^* 
or  who  imposes  on  or  deceives  the  court,^^  unless  it  appears  that  he  was  acting  in  good 
faith  and  not  with  an  intention  to  defy  the  court.^®  The  trial  judge  does  not  con- 
temn a  mandate  by  allowing  amendments  to  raise  points  not  decided.^^  A  police 
officer  in  attendance  on  the  municipal  court  is  guilty  of  contempt  in  informing  the 
keeper  of  a  gambling  house  of  a  warrant  for  his  arrest  so  as  to  enable  him  to  es- 
cape.^^ 

Obstructing  or  embarrassing  the  administration  of  justice,  as  by  abusively  de- 
nouncing the  official  action  of  a  federal  judge,^*  constitutes  contempt.  A  news- 
paper article  published  during  progress  of  a  trial,  commenting  upon  the  political 
complexion  of  the  officers  and  others  engaged  in  the  trial,  is  not  necessarily  calcu- 


17.  Harley  v.  Montana  Ore  Purchasing 
Co.,    27  Mont.   388,   71   Pac.   407. 

18.  Westinghouse  Air  Brake  Co.  v.  Chris- 
tensen   Engineering  Co.,    121   Fed.    562. 

19.  People  V.  Millard  Div.  No.  104,  78  App. 
Div.    (N.  Y.)    581. 

20.  United  States  v.  Haggerty,  116  Fed. 
510. 

21.  Wray  v.  Harrison  (Ga.)  42  S.  E.  351. 
23.     Non-payment    of    notes    sanctioned    by 

decree  is  so — Bonney  v.  Bonney,  98  111.  App. 
129.  It  is  not  imprisonment  for  debt — State 
V.  Cook,  66  Ohio  St.  566;  In  re  Cave,  26  Wash. 
213,  66  Pac.  425;  Baker  v.  Baker  (Ga.)  43 
S.  B.  46;  Welty  v.  Welty,  195  111.  335.  See 
discussion   in   title   Alimony,   ante,    p.    74. 

23.  Dillon  v.  Shiawassee  Circuit  Judge 
(Mich.)    91  N.  W.  1029. 

24.  People  V.  District  Ct.,  29  Colo.  182, 
68  Pac.  242.  Leading  client  to  violate  an  In- 
junction against  interference  with  property 
— Stolts  V.  Jackson,  82  App.  Div.  (N.  Y.) 
81.  Attorney  general  advising  state  board 
of  assessors  to  disregard  an  injunction  re- 
straining assessment  cannot  claim  In  defense 
that  he  was  discharging  official  duties — Eeo- 
ple  V.  District  Ct.,  29  Colo.  182,  68  Pac.  242. 

A  judge  of  a  territorial  district  court,  who 
had  appointed  a  receiver  in  a  suit  respecting 
mining  claims,  was  guilty  of  contempt  of 
the  Circuit  Court  of  Appeals  in  writing  let- 
ters and  giving  instructions  to  the  receiver 
which  interfered  with  the  execution  of  writs 


of  supersedeas  granted  on  appeal  to  the  lat- 
ter court.  A  district  attorney,  who  refused 
to  give  up  keys  to  safety  deposit  boxes  in 
which  gold  dust  was  stored,  which  had  been 
given  him  by  the  receiver,  and  an  attorney 
who  was  a  special  examiner  for  the  depart- 
ment of  justice  and  who  advised  the  mar- 
shal to  obstruct  execution  of  the  writ  and 
prevent  the  parties  from  securing  the  prop- 
erty from  the  receiver,  commanded  to  sur- 
render it,  were  also  guilty  of  contempt  of 
the  same  court;  but  otherwise  as  to  the  at- 
torney for  the  receiver  who  advised  the 
latter  that  the  writ  was  void  because  not 
appealable,  and  that  it  did  not  require  him 
to  restore  certain  property  in  his  hands,  but 
who  did  not  advise  him  as  to  his  particular 
acts  or  that  he  should  disobey  the  writ — 
In  re  Noyes   (C.  C.  A.)    121  Fed.  209. 

25.  An  attorney  secured  approval  of  a 
worthless  bond  (Code  Civ.  Proc.  §  4,  subds. 
2,  8) — Nuccio  V.  Porto,  72  App.  Div.  (N.  Y.) 
88. 

2C.  Advising  a  state  court  to  compel  sur- 
render by  receiver  in  bankruptcy,  of  prop- 
erty which  was  turned  over  to  him  by  a 
state  court's  receiver  without  his  consent — 
In    re  Watts,   190  U.   S.   1. 

2r.     May  v.   Ball,   24   Ky.   L.  R.   241.   67   S. 
W.  257,  68  S.  W.  398. 

28.  State  v.  O'Brien,   87  Minn.   161. 

29.  During  labor  troubles — United  States 
V.  Gehr,  116  Fed.  520. 


bl4 


CONTEMPT. 


§  ic 


lated  to  embarrass  or  obstruct  the  court  in  administration  of  justice  so  as  to  con- 
stitute contempt.'" 

The  federal  courts  have  statutory  power  to  punish  as  for  contempt  an  assault 
on  a  court  official  still  in  office,  returning  from  performance  of  duty  in  a  past  case, 
and  such  assault  on  a  United  States  commissioner  is  contempt  of  the  court  to  which 
he  belongs,  though  no  proceeding  against  the  official  was  pending,  and  he  was  not  at 
the  time  in  performance  of  duty." 

Merely  evasive  and  contemptuous  conduct  of  a  witness  does  not  constitute  con- 
tempt under  the  New  York  laws,^^  j^q^  can  an  order  be  made  finding  him  guilty 
of  contempt  for  refusing  to  answer  or  answering  falsely  when  it  does  not  appear 
that  the  judge  directed  him  to  answer  any  specific  question,'^  nor  can  a  warrant  in 
contempt  issue  on  the  mere  statement  that  he  was  subpoenaed  and  failed  to  ap- 
pear.'* Tampering  with  evidence,  such  as  the  taking  and  concealment  of  an  ex- 
hibit admitted  to  the  jury,  is  contemptuous,'^  but  it  is  not  an  interference  with  a 
witness  to  solicit  the  plaintiff  to  settlement  for  money  in  a  divorce  action." 

Suing  or  procuring  process  of  the  court  to  abuse  it,"  or  fraudulently  procuring 
process,'*  or  acts  in  frustration  of,'®  or  interference  with  the  legal  custody  of  prop- 
erty ,*°  or  the  retaining  of  property  when  such  custody  has  ceased  and  surrender 
ordered,*^  is  contemptuous.  A  bankrupt  who  fails  to  turn  over  to  a  receiver  ap- 
pointed all  his  books,  papers  and  securities,  and  who  leaves  the  state  after  a  rule 
to  show  cause  why  he  should  not  be  held  in  contempt,*^  or  who  fails  to  turn  over 
goods  and  abandons  them  so  that  they  are  stolen,*'  is  guilty  of  contempt.  With- 
holding property  which  one  claims  as  his  own  does  not  contemn  a  receivership  or- 
der." 

An  executor  who  files  the  customary  printed  blank  on  being  ordered  to  ac- 
count, with  "nothing"  written  in  each  of  the  schedules,  and  claiming  to  no  longer 


so.     state  V.  Edwards.  15  S.  D.   383. 

31.  Rev.  St.  §  725 — Ex  parte  McLeod,  120 
Fed.   130. 

32.  Code  Civ.  Proc.  §  14,  subd.  5,  §  228, 
construed — Ryan  v.  Ryan,  73  App.  Div.  (N. 
Y.)   137. 

83.  East  River  Bank  v.  De  Lacy,  37  Misc. 
(N.  Y.)   765. 

84.  In  re  Haines.  67  N.  J.  Law,  442. 

85.  After  it  was  laid  on  the  table  by  the 
attorney  (Code  Civ.  Proc.  §  8,  subd.  1) — In  re  i 
Teltelbaum,   116  N.   T.   St.   Rep.   887.  I 

SO.     Under   Code   Civ.    Proc.    §   14,    subd.    4,  j 
making    "unlawfully"    preventing   a   witness, 
etc.,    a    contempt — Herrmann    v.    Herrmann, 
115  N.   Y.   St.   Rep.    811. 

87.  Using  writ  of  prohibition  to  cover  dis- 
obedience of  Injunction — People  v.  District 
Ct.,  29  Colo.  182,  68  Pac.  242. 

38.  Falsely  justifying  surety  for  order  of 
arrest  (Code  Civ.  Proc.  §  14,  subd.  4) — Nuccio 
V.   Porto.   72   App.  Div.    (N.   Y.>   88. 

39.  Suitors  in  a  state  court,  on  advice  of 
attorney,  to  prevent  a  federal  receiver  from 
carrying  out  an  order  of  the  federal  court 
to  cease  operation  and  sell  the  track  ma- 
terials and  equipment  of  a  mortgaged  rail- 
road, are  guilty;  the  attorney  is  flagrantly 
guiltv — Roval  Trust  Co.  v.  Vyashburn,  B.  & 
I.  R.  Ry.  Co.,  113  Fed.  531. 

40.  A  purchaser  at  a  tax  sale  with  deed 
does  not  so  interfere  In  taking  possession 
after  renting  contracts  made  by  the  re- 
ceiver's agent  have  expired  and  tenants  have 
>«ft,  no  one  being  In  possession — Metcalfe  v. 


Commonwealth  Land  &  Lumber  Co.'s  Receiv- 
er,  24  Ky.  L.  R.   527.   68  S.  W.  1100. 

Suing  to  oust  tenants  of  land  in  receiv- 
er's hands — Fletcher  v.  McKeon,  74  App.  Div. 
(N.  Y.)  231.  A  defendant  lessee  in  mortgage 
foreclosure,  after  receiving  service  of  an 
order  appointing  a  receiver  and  enjoining  the 
owner's  interference  with  the  property,  is 
in  contempt  for  collecting  rent  of  a  sub- 
tenant but  not  for  suing  to  oust  the  sub- 
tenant after  passage  but  before  service  of 
the  order — Schultz  v.  Luft,  74  App.  Div.  (N. 
Y.)  628.  But  a  tenant  who  has  paid  rent 
in  advance  is  not  guilty  of  contempt  in  re- 
fusing to  pay  rent  for  the  same  time  to  a 
receiver  of  the  premises  subsequently  ap- 
pointed— Krakower  v.  Lavelle,  37  Misc.  (N. 
Y.)    423. 

41.  Order  to  return  money  after  appoint- 
ment of  receiver  was  set  aside  (Code  Civ. 
Proc.  §  14.  subd.  3,  §§  729,  2268,  construed — 
Newell  V.  Hall,  74  App.  Div.  (N.  Y.)  278.  Re- 
ceiver under  advice  refusing  to  surrender  on 
appeal  order  of  his  appointment  and  stay  is 
only  technically  guilty — Rumney  v.  Donovan 
(Mont.)    72  Pac.    305. 

42.  In  re  Wilson,  116  Fed.  419. 

43.  In  re  Levin.   113  Fed.   498. 

44.  He  was  not  a  party  but  had  In  his 
possession  certain  property,  which  he  at  first 
admitted  belonged  to  the  insolvent,  but  was 
Informed  by  his  attorney  that  the  property 
did  not  belong  to  the  Insolvent  and  that  he 
ought  not  to  turn  It  over  until  ordered 
further  to  do  so  by  the  court — State  v.  Den- 
ham,    30    "Vyash.    643,    71    Pac.    196. 


§  3 


POWER  TO  PUNISH. 


615 


act  as  executor,*'  or  who,  being  ruled  to  produce  a  certain  chattel  in  court,  fails  to 
comply  and  responds  merely  that  it  has  been  lost  without  showing  that  he  waa 
blameless  or  the  manner  in  which  it  was  lost,**  or  who  refuses  to  answer  questions 
as  to  the  taxable  property  of  the  estate  at  an  appraisal  to  fix  the  transfer  tax 
thereon,*^  is  guilty  of  contempt.  Disobedience  by  an  executor  of  a  surrogate's  de- 
cree directing  payment  of  legacies  may  be  punished  as  a  criminal  contempt.*^ 

§  2.  Defense,  excuse  or  'purgation. — Inability  to  perform  the  requirements  of 
an  order  may  be  a  defense.**  Advice  of  counsel  is  not  justification,  but  merely 
goes  in  mitigation,^"  where  the  party  is  a  layman  and  not  an  officer  charged  with 
enforcement  of  the  law,°^  and  especially  where  the  violation  is  willful  and  the  effect 
of  the  order  cannot  be  misunderstood."^^  That  the  order  disobeyed  is  erroneous  is 
no  defense."'  The  improper  issuance  of  an  injunction  is  not  a  defense  to  contempt 
in  its  violation,"*  if  the  court  has  jurisdiction  of  the  parties  and  the  cause.""  An 
assertion  that  money  withheld  by  one  cited  for  contempt  for  failure  in  its  payment 
does  not  belong  to  the  judgment  debtor  in  supplementary  proceedings  constitutes 
no  excuse  for  disobedience  of  the  order."®  It  is  criminal  contempt  to  willfully  dis- 
obey an  injunction  pendente  lite  against  disturbing  a  tenant's  possession,  even 
though  afterward  the  contemnor  recovered  possession  of  the  premises  in  a  lower 
court.  "^  Error  pertaining  merely  to  description  of  lands  in  an  opinion  affirming 
a  decree  enjoining  defendant  from  diverting  a  water  course,  cannot  avail  him  in 
proceedings  for  contempt  in  violating  the  injunction."®  Punishment  for  contempt 
in  assaulting  an  officer  of  the  court  will  not  be  meted  out  where  no  public  good 
will  result  therefrom  and  the  trouble  between  the  parties  has  been  amply  ad- 
justed."' Technical  defenses  will  not  be  considered  in  contempt  for  decoying  a  wit- 
ness from  the  state  to  prevent  his  appearance  before  a  grand  jury,  where  it  appears 
that  the  witness  and  the  defendants  in  the  contempt  believed  the  subpoena  legal  and 
the  acts  constituting  the  contempt  were  committed  under  that  belief;  but  where 
no  subpoena  has  been  issued  for  appearance  of  the  witness,  one  influencing  him  to 
leave  the  state  to  prevent  testifying  is  not  guilty  of  contempt.®" 

§  3.  Power  to  punish  or  redress;  contempt  or  other  remedy. — Constitutional 
definitions  of  jurisdiction  do  not  limit  the  inherent  powers  of  courts  of  original 
general  jurisdiction  to  punish  for  contempt."^     The  federal  courts  have  the  consti- 


45.  In  re  People's  Trust  Co.,  37  Misc.  (N. 
T.)    239. 

46.  Reed  v.  Reed,  24  Ky.  L.  R.  2438.  74  S. 
W.   207. 

47.  In  re  Bishop,  115  N.  T.  St.  Rep.  474. 
See,  also,  115  N.  Y.  St.  Rep.  252,  40  Misc. 
(N.  Y.)   64. 

48.  Code  Civ.  Proc.  §  2555 — In  re  Holmes' 
Estate,  79  App.  Div.   (N.  Y.)   267. 

49.  Alimony — Welty  v.  Welty,  195  111.  335; 
"Wester  v.  Martin,  115  Ga.  776. 

50.  Violation  of  injunction — Stolts  v. 
Jackson,  82  App.  Div.  (N.  Y.)  81;  Coffey  v. 
Gamble,  117  Iowa,  545.  Suing  for  property 
In  custody  of  law — Fletcher  v.  McKeon,  74 
App.  Div.    (N.  Y.)    231. 

51.  Royal  Trust  Co.  v.  Washburn,  B.  & 
I.  R.  Ry.  Co.,  113  Fed.  531. 

52.  In  re  Granz,  78  App.  Div.  (N.  Y.)  399, 
S8   Misc.    666. 

63.  Elmstedt  v.  People,  102  111.  App.  231. 
Mandamus  to  treasurer  to  pay  over  fines, 
etc..  Is  conclusive — Ball  v.  Wright,  115  Ga. 
729. 

54.  People  V.  District  Ct.,  29  Colo.  182,  68 
Pae.    242. 


55.  St.  Louis,  B.  &  S.  Ry.  Co.  v.  Gray, 
100   111.   App.    538. 

56.  In   re  Lewis    (Kan.)    72   Pac.    788. 

57.  Code  Civ.  Proc.  §  8,  subd.  3 — In  r© 
Granz,    38    Misc.    (N.    Y.)    666. 

58.  Defendant  was  sufficiently  Informed 
of  the  identity  of  the  stream  affected  by  the 
Injunction  and  was  not  misled  by  the  er- 
ror— State  V.  Gray,  42  Or.  261,  70  Pac.  904, 
71    Pac.    978. 

59.  Ex  parte  McLeod,   120  Fed.  130. 

60.  Shannon's  Code,  §  5918,  subds.  3,  6 — 
Scott  V.   State    (Tenn.)    71   S.   W.   824. 

61.  Circuit  courts  of  Michigan  are  clothed 
with  "exclusive"  power  over  contempt  wheth- 
er specified  by  statute  or  not  and  the  mu- 
nicipal court  of  Grand  Rapids  has  the  same 
power  as  a  circuit  court  to  punish  for  con- 
tempt in  subornation  of  perjury  in  a  crim- 
inal cause  before  it  (Const,  art.  6,  §  8  con- 
strued; Const.  1835,  art.  6,  §  1,  and  the  pres- 
ent Const,  art.  6,  §§  1,  13,  18,  and  art.  3, 
§  2,  construed  in  connection  with  Comp.  Lu 
§§  630,  631,  1098) — Nichols  v.  Judge  of  Su- 
perior Ct.   (Mich.)    89  N.  W.  691. 


616 


CONTEMPT. 


g  4 


tutional  power  to  punish  for  contempt,"  and  upon  contempt  of  a  federal  court  the 
United  States  commissioner  is  authorized  to  arrest,  imprison  or  admit  to  bail." 
The  offended  court  has  exclusive  jurisdiction  ^herefrom  it  alone  has  power  to 
modify,  mitigate  or  revoke  its  sentence,  and  no  other  court  may  bail  or  discharge 
the  contemner."  A  bankruptcy  court  has  no  greater  powers  to  punish  for  con- 
tempt than  other  federal  courts  and  must  proceed  according  to  the  established  prac- 
tice of  those  courts.*^  It  may  enforce  an  order  requiring  a  debtor  to  turn  over 
money  to  a  trustee  appointed  by  committing  for  contempt.^®  In  Ohio  a  proceeding 
to  enforce  a  decree  for  alimony  rendered  in  the  circuit  court  by  attachment  for 
contempt  may  be  brought  in  the  common  pleas.^^ 

The  power  of  a  court  of  record  to  punish  neglect  or  violation  of  duty  or  mis- 
conduct, by  which  rights  or  remedies  of  parties  may  be  defeated  or  prejudiced,  may 
be  applied  to  enforce  any  civil  remedy.®^  One  is  not  relieved  from  punishment  for 
contempt  for  disobedience  of  an  order  in  a  case  in  which  a  statutory  remedy  of  exe- 
cution exists,  if  the  remedy  of  enforcement  by  contempt  proceedings  exists  also.®* 
That  an  attempt  to  bribe  a  juror  constitutes  a  crime  does  not  prevent  its  punish- 
ment by  the  court  as  a  contempt.''" 

§  4.  Pleadings  and  other  procedure  before  hearing J^ — A  decree  for  alimony 
may  be  enforced  by  attachment  for  contempt  after  the  term  at  which  the  decree 
was  entered,  on  a  hearing  showing  willful  refusal  to  pay.'^^  An  application  for  at- 
tachment for  contempt  brought  more  than  four  years  after  knowledge  of  the  facts 
is  properly  denied.'^'  A  contempt  proceeding  for  violation  of  a  previous  injunction 
is  not  criminal  so  as  to  abate  on  defendant's  death.''*  The  application  to  punish 
for  contempt  must  be  made  by  an  order  to  show  cause,''^  on  affidavit  or  proof  in 
open  court,  and  compulsory  process  should  never  be  used  unless  it  appears  that 
ordinary  methods  would  fail.''®  An  oral  motion  and  affidavit  which  make  out  a 
prima  facie  case  are  sufficient.''^  An  affidavit  which  does  not  show  that  accused  is 
one  of  the  defendants  in  the  suit,  or  an  employe  or  agent  of  one  of  the  defendants, 
will  not  authorize  contempt  proceedings  against  him  for  disobedience  of  an  order 
restraining  the  defendants,  their  agents  and  employes.''*  The  affidavit  of  arrest  for 
disobedience  of  an  injunctive  order  may  be  made  by  any  one  with  knowledge  of  the 
facts,  whether  a  party  or  not.''®  An  affidavit  in  proceedings  against  a  trial  judge 
for  refusing  to  obey  a  mandate  of  the  court  of  appeals  will  be  stricken  from  the 
files  where  it  reflects  upon  the  respondent  and  contains  irrelevant  and  impertinent 
matter.*"     In  a  proceeding  to  compel  payment  of  alimony,  the  order  to  show  cause 


62.  Const,  art.  3.  §  1 — In  re  Nevltt  (C.  C. 
A.)    117   Fed.    448. 

63.  Rev.  St.  §  1014,  construed  In  connec- 
tion with  Act.  May  28,  1896 — Castner  v.  Po- 
cahontas Collieries  Co.,   117  Fed.   184. 

64.  In  re   Nevltt    (C.   C.   A.)    117    Fed.   448. 

65.  Bankr.  Act,  1898.  §  41 — Boyd  v.  Gluck- 
lich   (C.   C.  A.)    116  Fed.   131. 

66.  In   re  Wilson,    116   Fed.    419. 

67.  State  V.  Cook,  66  Ohio  St.  566. 

68.  Code  Civ.  Proc.  §  14 — Rowley  v.  Feld- 
man,   116   N.   T.   St.   Rep.    679. 

69.  Code  Civ.  Proc.  §  779,  contempt  pro- 
ceedings to  enforce  an  order  directing  resi- 
due of  money  paid  out  of  court  on  a  judg- 
ment subsequently  reversed  on  appeal — Row- 
ley V.  Feldman,   116  N.   Y.   St.  Rep.    679. 

70.  Nichols  V.  Judge  of  Superior  Ct. 
(Mich.)    89   N.   W.   691. 

71.  Sufficiency  of  affidavit  In  proceedings 
for  contempt  against  grand  jurors  for  mis- 
conduct— State  v.  Rockwood.  159  Ind.   94. 

72.  2    Starr    &    C.    Ann.    St.    c.    40,    S    18. 


c.    22,    §§    42,    47 — Welty    t.    Welty,    195    111. 
335. 

73.  Though  the  contempt  may  constitute 
an  offense  against  the  order  of  the  court 
It  Is  not  bound  to  act  after  needless  delay — 
Matheson  v.  Hanna-Schoellkopf  Co.,  122  Fed. 
836. 

74.  Hannah   v.   People,    198    111.    77. 

75.  Notice  of  motion  is  Insufficient — Dun- 
lop  V.  Mulry,  40  Misc.  (N.  Y.)  131.  Viola- 
tion of  order  of  court  against  publication  ot 
testimony  in  a  criminal  case — Ex  parte  Fos- 
ter   (Tex.   Cr.  App.)    71  S.  W.  593. 

76.  In  re  Haines,  67  N.  J.  Law,  442;  Ex 
parte  Foster   (Tex.  Cr.  App.)   71   S.  W.  593. 

77.  Scott  v.  State   (Tenn.)    71  S.  W.  824. 

78.  Ballinger's  Ann.  Codes  &  St.  §  5798. 
subd.  5,  §  5801 — State  v.  Peterson,  29  Wash. 
571,   70  Pac.  71. 

79.  Castner  v.  Pocahontas  Collieries  Co.. 
117    Fed.    184. 

SO.  May  v.  Ball.  24  Ky.  L.  R.  241,  67  S. 
W.  257,  68  S.  W.  398. 


§5 


HEARING;    EVIDENCE;    TRIAL. 


617 


must  be  served  on  the  party  and  not  his  attorney,  under  the  New  York  Code.'^ 
The  complaint  in  attachment  for  contempt  for  failure  to  pay  alimony  need  not  al- 
lege ability  to  pay  as  it  is  imported  by  the  decree.^^  One  arrested  in  contempt  pro- 
ceedings, and  who  is  in  court  with  time  to  plead  and  to  go  on  his  own  recognizance, 
may  be  ordered  to  be  brought  before  the  court  without  bail  and  without  designating 
a  return  day  in  the  warrant.^^ 

§  5.  Hearing;  evidence;  trial.^* — A  bankrupt  should  not  be  punished  for  con- 
tempt in  failing  to  comply  with  order  of  the  court  before  giving  him  a  hearing  to 
show  his  inability  to  respond. ^^  A  husband  prosecuted  for  contempt  for  failure  to 
pay  alimony  cannot  be  attached  without  hearing  after  answer  alleging  poverty.^® 
Summary  punishment  may  follow  a  criminal  contempt  in  the  immediate  presence 
of  the  court,^^  but  failure  to  obey  a  subpoena  to  attend  court  as  a  witness  is  an  in- 
direct contempt  and  cannot  be  summarily  punished.**  Doubtful  questions  will  not 
be  decided  against  one  charged  with  contempt  in  violating  an  injunction.**  That 
the  subpoena  of  a  witness  as  shown  by  the  record  contains  an  error  inserted  by  the 
clerk  by  mistake  will  not  require  dismissal  of  contempt  proceedings  on  appeal  for 
decoying  a  witness  subpoenaed  to  appear  before  the  grand  jury  to  prevent  his  tes- 
timony, but  a  new  trial  will  be  ordered  where  the  guilt  of  the  parties  otherwise 
seems  clear.®"  The  burden  of  proof  is  on  plaintiff,  in  contempt  to  punish  another 
for  false  qualification  on  a  bond  to  release  property  from  a  lien,  to  show  that  de- 
fendant swore  falsely  as  to  his  financial  condition,  and  he  must  show  falsehood  be- 
yond a  reasonable  doubt.®^  The  relation  of  the  persons  charged  with  contempt  to 
the  suit,  or  the  parties,  and  acts  of  misconduct  beside  those  charged,  may  be  proved 
in  the  contempt  proceedings  to  show  their  motives.®^  Circumstantial  evidence 
merely  creating  a  strong  impression  that  defendant  has  infringed  a  patent  will  not 
warrant  a  finding  that  he  is  guilty  of  contempt  involving  imprisonment,  when  he 
makes  denial  under  oath.®^  Evidence  that  the  court  stated  that  the  injunction 
order  was  dissolved,  that  no  formal  decree  was  necessary,  and  that  defendant  might 
proceed,  may  be  admitted  in  mitigation  in  proceedings  for  contempt,  as  may  also 
evidence  that  defendant  acted  on  advice  of  counsel.®*  In  proceedings  against  a 
police  officer  for  informing  a  party  accused  of  crime,  so  as  to  enable  his  escape,  the 
failure  of  the  officer  to  explain  suspicious  circumstances  will  raise  an  inference 
against  him  which  the  court  may  consider  in  drawing  conclusions  from  his  silence, 
and  he  cannot  claim  benefit  of  the  absolute  presumption  of  innocence  given  to  per- 
sons accused  of  crime  who  decline  to  testify.®^  Defendant  in  a  hearing  for  con- 
tempt cannot  be  compelled  to  testify  as  to  his  own  guilt.®* 


81.  Goldie  v.  Goldie,  77  App.  Div.  (N.  T.) 
12. 

82.  State  V.  Cook,  66  Ohio  St.   566. 

83.  State  V.  Peterson,  29  Wash.  671,  70 
Pac.   71. 

84.  Sufficiency  of  evidence  In  proceedings 
for  violation  of  a  decree  restraining  ob- 
struction of  a  water  course — State  v.  Gray, 
42  Or.  261,  70  Pac.  904,  71  Pac.  978.  Of  ev- 
idence in  proceedings  for  false  qualification 
on  a  bond  to  release  property  from  a  me- 
chanic's lien — Johnson  v.  Austin,  76  App. 
Div.  (N.  Y.)  312.  Of  evidence  of  violation 
of  Injunction — Ex  parte  Richards,  117  Fed. 
658.  Of  showing  of  disobedience  of  order 
restraining  interference  of  complainant's 
business  or  employes  during  strike — George 
Jonas  Glass  Co.  v.  Glass  Bottle  Blowers' 
Ass'n    (N.   J.   Ch.)    53   Atl.   138. 

85.  In  re  Hausman  (C.  C.  A.)  121  Fed. 
•84. 


86.  Evidence  to  establish  his  plea  of  pov- 
erty must  be  heard — Wester  v.  Martin,  115 
Ga.    776. 

87.  Code  Civ.  Proc.  §  10 — In  re  Teitel- 
baum,   116   N.   T.   St.    Rep.   887. 

88.  Laws  1901,  c.  123— State  v.  Anders, 
64  Kan.   742,    68  Pac.   668. 

89.  Against  infringement  of  patent — 
Schlicht  Heat,  Light  &  Power  Co.  v.  Aeoll- 
pyle  Co.,   121    Fed.   137. 

90.  Scott  V.  State   (Tenn.)   71   S.  W.   824. 

91.  Johnson  v.  Austin,  76  App.  Div.  (N. 
Y.)    312. 

92.  Interference  with  execution  of  writs 
of  supersedeas — In  re  Noyes  (C.  C.  A.)  121 
Fed.    209. 

93.  Cimiotti  Unhairing  Co.  v.  FroUoehr, 
121   Fed.   561. 

94.  Coffey  v.   Gamble,   117   Iowa,   545. 

95.  State  V.    O'Brien,    87   Minn.    161. 

96.  In  re  Haines,  67  N.  J.  Law,  442. 


61S 


CONTEMPT. 


§  7 


§  6.  Findings  and  judgment.— An  adjudication  of  civil  contempt  for  viola- 
tion of  an  injunction  should  state  definitely  the  facts  constituting  the  violation  and 
recite  the  acts  of  defendant  calculated  to  defeat  or  prejudice  plaintiff's  rights.'^  A 
recital  in  an  order  adjudging  one  guilty  of  contempt  for  failure  to  pay  a  sum  or- 
dered by  the  court,  that  the  court  was  satisfied  that  a  demand  for  the  amount  had 
been  made  on  the  party,  is  insufficient  where  the  code  requires  proof  by  affidavit.®* 
Though  formal  accusation  is  not  necessary  for  contempt  in  the  presence  of  the 
court,  the  record  must  show  that  a  contempt  has  been  committed,  and  the  record 
should  contain  the  language  alleged  to  be  contemptuous  and  not  merely  a  recital 
that  such  language  was  addressed  by  accused  to  the  court.  It  must  appear  also 
that  the  contempt  was  committed  in  the  presence  of  the  court."®  A  written  accu- 
Bation  of  a  direct  contempt  being  unnecessary,  a  journal  entry  showing  the  proceed- 
ings may  constitute  the  full  record.*  The  order  of  the  court  on  a  motion  for  at- 
tachment in  contempt  should  contain  the  action  of  the  court  on  the  motion  and 
affidavit,  in  awarding  or  denying  the  attachment,  together  with  the  substance  of 
the  motion  and  of  the  charge,  though  not  necessarily  the  evidence,  and  the  sub- 
stance of  such  order  should  appear  in  the  writ  if  awarded.^ 

§  7.  Punishment;  fine  and  commitment;  further  proceedings. — One  guilty 
of  contempt  in  violating  an  injunction  may  be  sent  to  jail,^  but  violation  of  a  pre- 
liminary injunction  cannot  be  punished  by  instructing  that  testimony  in  behalf  of 
defendant  shall  not  be  considered,  any  more  than  it  would  be  proper  to  reward 
obedience  to  the  injunction  by  instructing  that  he  was  entitled  to  a  verdict.*  The 
striking  of  defendant's  answer  in  a  suit  for  separation  and  support  is  an  imconsti- 
tutional  punishment  for  contempt  if  he  is  thereby  prevented  from  presenting  a  de- 
fense.* Contempt  in  filing  a  scurrilous  motion  cannot  be  punished  by  forbidding 
the  party  to  appear  or  file  any  other  pleading  or  paper,  and  an  order  punishing  a 
party  for  contempt  by  forbidding  him  to  appear  or  file  any  pleadings  until  he  first 
purges  himself  will  not  forbid  filing  of  a  motion  to  purge  himself.*  Disobedience 
of  an  order  directing  a  son  to  support  his  mother  is  a  civil,  not  a  criminal  contempt, 
80  as  to  bring  his  punishment  within  the  statutory  limit  of  six  months.''  Statutes 
fixing  the  limit  of  a  fine  at  a  sum  "and  costs"  have  been  held  to  mean  only  costs  of 
the  contempt  proceeding.*  The  fine  assessed  against  one  guilty  of  a  technical  con- 
tempt only,  because  he  acted  in  good  faith  under  advice  of  counsel,  should  be  nom- 
inal.® One  who  violates  an  injunction  by  preventing  other  parties  from  enjoyment 
of  property  rights  may  not  only  be  fined  but  ruled  to  pay  damages  covering  prov- 
able loss  and  expenses  and  imprisoned  imtil  he  is  ready  to  obey  the  writ.*®  In 
Michigan  imprisonment  of  defendant  found  guilty  of  contempt  in  violating  an  in- 
junction not  exceeding  80  days  in  default  of  pa^-ment  of  a  fine  of  $225  and  $50 
costs  is  not  excessive,  the  proceeding  being  to  enforce  a  civil  remedy."     A  defend- 


97.  Mutual  Milk  &  Cream  Co.  t.   Tletjen, 
73   App.    Dlv.    (N.    Y.)    532. 

98.  Code   Civ.   Proc.    §   2268 — Flor   v.   Flor, 
73   App.   Div.    (N.    Y.)    262. 

99.  Ogden  v.  State   (Neb.)    93  N.  W.  203. 

1.  Laws  1901,  c.  123,  §  1 — State  v.  Anders, 
64   Kan.    742,    68    Pac.    668. 

2.  Scott  V.  State   (Tenn.)    71  S.  W.  824. 

3.  1  Gen.  St.  p.  392 — Frank  v.  Harold  (N. 
J.    Law)    51    Atl.    774. 

4.  Lake  v.   Copeland    (Tex.   Civ.  App.)    72 
S.    W.    99. 

5.  Fed.   Const.   Amend.   14 — Sibley  v.   Sib- 
ley. 76  App.  Dlv.   (N.  Y.)   132. 

6.  Kruegrel   v.   Nash    (Tex.    Civ.    App.)    70 
a   W.   98S. 


7.  Code  Crlm.  Proc.  §  915,  construed  In 
connection  with  Code  Civ.  Proc.  §  2285 — 
People  v.  O'Brien,   39  Misc.    (N.  Y.)   110. 

8.  Code  Civ.  Proc.  §  2284 — In  re  Husted's 
Estate,  37  Misc.  (N.  Y.)   237. 

9.  Rumney  v.  Donovan  (Mont.)  72  Pac. 
305.  A  witness  should  not  be  fined  the 
limit  for  refusing-  under  advice  of  counsel, 
to  answer  before  a  referee — In  re  Husted's 
Estate,   37   Misc.    (N.   Y.)    237. 

10.  Stolts  V.  Tuska,  82  App.  Div.  (N.  Y.) 
81. 

11.  Violation  of  an  injunction  to  enforce 
a  Judgment  of  ouster  ag-ainst  a  foreign  cor- 
poration— In  re  Osborn  (Mich.)  90  N.  W. 
1029. 


??  *♦ 


REVIEW  OF  PROCEEDINGS. 


619 


ant  in  alimony  proceedings  cannot  be  committed  until  the  whole  amount  of  ali- 
mony be  paid,  where  the  finding  of  the  court  does  not  show  that  he  was  able  to  pay 
the  whole  amount  ordered.^^  An  executor  who  became  guilty  of  contempt  by  fail- 
ing to  obey  an  order  of  the  court  after  he  had  paid  into  court  money  belonging  to 
himself  may  be  refused  his  motion  for  leave  to  withdraw  the  money.^^  An  ordei 
adjudging  defendant  in  contempt  for  failure  to  pay  alimony,  and  committing  him 
imtil  it  shall  be  paid,  must  name  a  definite  term  of  imprisonment,  if  imprisonment 
is  inflicted  as  punishment.^*  A  justice  may  in  Connecticut  sentence  to  imprison- 
ment for  contempt  without  imposing  a  fine.^^ 

§  8.  Discharge  or  pardon. — If  the  record  shows  that  a  trial  for  indirect  con- 
tempt was  summary,  defendant  must  be  discharged  until  formal  proceedings  are 
instituted.^"  A  judge  may  discharge  a  receiver  imprisoned  for  contempt  in  failing 
to  pay  over  money  on  order  of  the  court,  on  the  ground  that  poverty  prevents  his 
payment,  without  determining  the  question  whether  by  his  imprisonment  he  has 
been  sufficiently  punished  for  the  contempt. ^^  An  administrator  imprisoned  for 
failure  to  restore  a  wasted  estate  will  not  be  discharged  because  adjudged  a  bank- 
rupt, especially  where  his  inability  to  pay  is  not  clearly  shown  and  he  is  guilty  of 
fraud  and  perjury,  and  fled  before  entry  of  the  decree  requiring  payment.^* 

The  president  of  the  United  States  cannot  pardon  one  under  imprisonment 
for  a  civil  contempt  of  the  United  States  courts.^^ 

§  9.  Review  of  proceedings. — The  state  may  take  an  appeal  in  proceedings 
for  indirect  contempt.^**  Certiorari  is  the  proper  method  to  review  a  proceeding 
adjudging  a  "party  guilty  of  criminal  contempt.^^  An  order  punishing  for  con- 
tempt in  violating  an  injunction  is  not  appealable,  though  in  addition  to  a  fine,  it 
directs  restoration  of  the  conditions  when  the  injunction  issued,  and  commits  to 
imprisonment.  If  the  order  merely  imposes  a  fine  it  is  not  appealable.^^  One  ad- 
judged guilty  of  contempt  by  a  circuit  court  in  Oregon  may  appeal  as  from  a  judg- 
ment in  an  action,  though  at  common  law  such  judgments  were  not  reviewable. ^^ 
The  court  of  ultimate  appeal  cannot  review  a  judgment  imposing  a  penalty  for  a 
purely  civil  contempt  unless  an  element  is  involved  required  by  the  statute  to  carry 
the  case  past  a  court  of  intermediate  appeal.^*  One  found  in  contempt  may  have 
a  stay  pending  appeal.^^  Facts  found  by  the  judge  in  contempt  may  be  reviewed 
on  appeal  only  to  determine  their  sufficiency  to  warrant  the  judgment.^®  If  affi- 
davits in  contempt  for  failure  to  obey  an  order  of  court  do  not  enable  a  court  to 
determine  with  accuracy  the  existence  of  contempt,  an  order  denying  the  motion 
will  be  reversed  and  a  referee  appointed  to  hear  evidence  as  to  defendant's  guilt." 
Subsequent  modification  on  appeal  of  an  order  determining  the  liability  of  a  pur- 
chaser at  a  judicial  sale  for  failure  to  comply  with  the  terms  of  his  bid,  and  pay 


12.  Green  v.  Green,    130   N.   C.   578. 

13.  Reed  v.  Reed,  24  Ky.  L.  R.  2438,  74 
S.  W.  207. 

14.  Kahlbon  v.  People,  101  111.  App.  567. 

15.  Gen.  St.  1902,  §  506 — Church  v.  Pearne, 
75  Conn.  350. 

16.  State  V.  Anders,  64  Kan.  742,  68  Pac. 
668. 

17.  Nisbet  v.  Tindall,  115  Ga.  374. 

18.  Under  Code  Civ.  Proc.  §  2286,  provid- 
ing for  discharge — In  re  Collins,  39  Misc. 
(N.   Y.)    753. 

19.  In  re  Nevitt  (C.  C.  A.)  117  Fed.  448, 
as  to  power  in  criminal  contempt  see  7 
Wheat.    38,    43. 

20.  Burns'  Rev.  St.  1901,  S  1915 — State  v. 
Rockwood,   159   Ind.    94. 


21.  In  re  Teitelbaum,  84  App.  Div.  (N.  Y.) 
351. 

23.  Florida  Cent.  &  P.  R.  Co.  v.  Williams 
(Fla.)    33    So.    991. 

23.  Under  Del.  &  C.  Ann.  Codes  &  St. 
§  676 — State  v.  Gray,  42  Or.  261,  70  Pac.  904, 
71    Pac.    978. 

24.  Court  of  Appeals  Act,  1891 — Naturlta 
Canal  &  Reservoir  Co.  v.  People  (Colo.)  70 
Pac.  691. 

25.  2  Ballinger's  Ann.  Codes  &  St.  §  5811 
— State  V.  Superior  Ct.,  28  Wash.  590,  68 
Pac.    1051. 

26.  Green  v.  Green,   130  N.   C.   578. 

27.  Hogan  V.  Clarke,  72  App.  Div.  (N.  Y.) 
615. 


620 


CONTINUANCE. 


§1 


a  deficiency  resulting  after  resale,  cannot  affect  contempt  proceedings  against  him.^" 
An  affidavit  on  which  a  motion  is  based  on  appeal  from  a  conviction  for  contempt, 
if  insuilicient,  may  be  amended  on  remand.^^  Where  proceedings  for  contempt  were 
reversed  in  the  supreme  court  on  certiorari  and  supplementary  evidence  was  pro- 
duced on  rehearing  in  the  district  court,  that  court  must  consider  the  evidence  re- 
ceived on  both  hearings.^"  TVliere,  on  habeas  corpus  proceedings  and  certiorari  in 
aid  to  review  an  order  committing  in  contempt,  the  evidence  is  certified  on  request 
of  relator,  defendant  is  entitled  to  expenses  for  transcribing  the  evidence  into  long 
hand  on  dismissal  at  costs  of  relator.^^  On  dismissal  at  cost  of  relator  of  a  writ  of 
review  to  review  an  order  in  contempt,  defendant  is  entitled  to  the  fee  paid  by  him 
for  judgment  and  minute  entries  in  his  return  and  for  the  expense  of  making  the 
transcript  except  such  pages  as  consist  merely  of  recitals  by  defendant.*^ 

CONTINITANCE  AND  POSTPONEMENT. 


S  !•  Definitions  and  Distinctions;  PoTrers 
and  Duties  of  Courts. 

§  2.  Grounds. — A.  In  General.  B.  Absence 
or  Disability.  C.  Inability  to  Procure  Evi- 
dence.    D.   Surprise. 


§  3.  Admission    to    Aroid    Continuance. 

§  4.  Application. 

§  5.  Affidavits  or  SliOT«~ing. 

§  6.  Hearing  and   Order. 

§  7.  Continuance   By   Operation  of  Layr. 


§  1.  Definitions  and  distinctions;  powers  and  duty  of  courts. — In  exact 
phraseology  "continuance"  means  the  revival  of  an  abated  cause,  "adjournment" 
the  putting  over  from  day  to  day  in  the  term,  and  "postponement"  the  putting  over 
to  another  term.^^  But  these  uses  have  been  confused  and  much  relaxed  and  it  is 
believed  that  except  as  the  terms  have  been  locally  given  a  statutory  meaning  they 
cannot  be  distinguished.^* 

The  grant  of  a  continuance  lies  in  the  discretion  of  the  court,'*  especially  so  if 
it  is  a  second  application.^®  The  court  may  properly  go  to  the  residence  of  a  party 
and  take  her  testimony  in  his  presence,  without  officers  and  attorneys,  instead  of 
granting  an  application  for  a  continuance  because  of  her  physical  inability  to  attend 
and  testify.'^  An  unwritten  agreement  by  counsel  to  postpone  hearing  of  a  motion 
for  new  trial,  or  their  acquiescence  in  an  oral  statement  of  postponement  by  the 
judge,  will  not  keep  the  court  open  for  hearing  on  the  motion. ^^  A  justice  cannot 
grant  a  continuance  unless  given  authority  by  statute  but  he  may  postpone  a  trial 
after  commencement  on  sufficient  proof  of  the  discovery  of  new  evidence  by  the 
applicant.^* 

§  2.  Grounds  for  continuance  or  postponement.  A.  In  General. — A  contin- 
uance will  not  be  granted  defendant  because  of  the  short  time  granted  him  in  which 


28.  Rowley  v.  Feldman,  84  App.  Div.  (N. 
Y.)    400. 

29.  Scott  V.  State    (Tenn.)   71  S.  W.   824. 

30.  McConkie  v.  District  Ct.,  117  Iowa, 
334. 

31.  Code  Civ.  Proc.  §  1860 — In  re  Boyle. 
26   Mont.   365,  68   Pac.   409,   471. 

32.  Code  Civ.  Proc.  §§  1860,  1866,  3472 — 
State  V.  District  Ct.,  26  Mont.  224,  67  Pac. 
114,    68    Pac.    470. 

33.  Cyc.  Law  Diet.,   "Postponement." 

34.  4  Enc.  PI.   &  Pr.   824. 

35.  It  is  therefore  not  reviewable — Scott 
V.  Boyd  (Va.)  42  S.  E.  918;  Saastad  v.  Oke- 
son  (S.  D.)  92  N.  W.  1072;  McMahan  v. 
Norick  (Okl.)  69  Pac.  1047  [on  ground  of  re- 
jection of  evidence  offered  by  defendant] — 
Supreme  Lodge  Knights  of  Pythias  v.  Rob- 
bins,  70  Ark.  364.  For  absence  of  material 
witness — Doll     v.     Stewart     (Colo.)     70     Pac. 


326.  On  application  to  be  restored  to  mental 
capacity — In  re  Lovern's  Estate,  137  Cal. 
680,    70    Pac.    783. 

A  final  decree  will  not  be  reversed  for 
denial  of  a  motion  for  continuance  (United 
States  V.  Rio  Grande  Dam  &  Irr.  Co.,  184 
U.  S.  416);  and  the  same  is  true  of  a  judg- 
ment unless  the  action  is  clearly  erroneous 
— Empire  Coal  &  Coke  Co.  v.  Hull  Coal  & 
Coke  Co.,   51   W.   Va.   474. 

3G.  Not  properly  verified — Gulf,  C  &  S, 
P.  Ry.  Co.  V.  Brown  (Tex.  Civ.  App.)  75  S 
W.  807. 

37.  Action  to  set  aside  a  decree  for  a 
divorce — Humphrey  v.  Humphrey  (Neb.)  91 
N.   W.   856. 

38.  Atlanta.  K.  &  N.  Ry.  Co.  V.  Strick- 
land.   114   Ga.    998. 

39.  Rev.  Codes,  1899.  §  6650— Lyman-Ellel 
Drug  Co.  V.  Cooke   (N.  D.)   94  N.  W.  1041. 


§  2B 


GROUNDS. 


621 


to  produce  papers  tinder  an  order  of  court,  where  it  clearly  appears  that  ample  time 
was  given  for  that  purpose  and  no  defense  is  shown  to  the  suit.***  Death  of  co-de- 
fendants and  want  of  administration  is  not  necessarily  sufficient  where  the  statutes 
and  the  nature  of  the  case  permit  judgment  to  be  taken  without  affecting  their  es- 
tates,** A  statute  providing  that  unless  the  declaration  is  filed  ten  days  before  the 
term  of  court,  defendant  may  have  a  continuance,  is  not  designed  to  allow  plaintiff 
to  keep  defendant  attending  court  from  term  to  term,  without  giving  him  knowledge 
of  the  nature  of  the  case  against  him.*^  A  further  continuance  is  properly  denied 
where  the  former  continuance  was  on  a  plea  on  which  the  parties  introduced  no 
evidence,  and  which  constitutes  the  only  plea  which  they  were  enabled  to  file.*^  A 
continuance  will  not  be  granted  because  of  improper  remarks  by  coimsel  in  hearing 
of  persons  summoned  as  jurors,  but  the  case  will  only  be  postponed  until  panels 
may  be  drawn  from  which  to  select  the  jury.** 

(§2)  B.  Absence  or  disability  of  party  or  counsel. — A  continuance  should  be 
granted  for  absence  of  a  party,  where  it  appears  by  affidavit  that  he  was  seriously  sick 
and  that  he  was  a  material  witness  and  that  his  presence  was  necessary,*'  and  that  he 
was  out  of  the  state  temporarily  on  business  when  taken  sick  did  not  require  the 
other  co-parties  to  take  his  deposition  in  order  to  show  due  diligence.*'  It  should 
not  be  granted  to  a  party  who  voluntarily  leaves  the  district  without  asking  a  con- 
tinuance or  preparing  his  testimony,*^  nor  on  an  affidavit  merely  showing  that  he 
was  sick  and  unable  to  attend  the  trial  but  not  showing  that  he  was  expected  to 
testify  or  that  his  presence  was  otherwise  necessary,**  nor  where  it  appears  that  his 
presence  was  not  necessary  and  that  he  could  not  appear  for  some  time,  and  that 
his  deposition  could  have  been  taken,  and  it  is  admitted  that  if  he  were  present  he 
would  testify  as  alleged  in  an  affidavit  for  a  continuance.*®  If  no  former  continu- 
ance has  been  granted  and  the  application  on  the  ground  of  the  absence  of  the  de- 
fendant is  perfectly  regular,  and  it  does  not  appear  that  the  case  should  proceed 
against  the  other  defendants  without  him,  the  continuance  should  be  granted.'" 

A  further  continuance  should  be  granted  where  it  appears  after  a  continuance 
granted  because  of  an  accident  to  defendant,  that  he  was  not  physically  able  to  be 
present  or  have  his  deposition  taken  and  that  his  presence  at  the  trial  was  neces- 
sary.'* 

A  continuance  because  of  absence  of  counsel  will  not  be  granted  where  the 
party  is  ably  represented  by  other  counsel,'^  nor  because  of  absence  of  counsel  on 
leave,  where  it  appears  from  a  motion  for  new  trial  that  the  leave  was  intended  to 
apply  to  another  case.'^  Unavoidable  exhaustion  of  the  attorneys  of  a  party  will 
not  be  cause  for  continuance  if  it  appears  that  they  can  attend  and  properly  conduct 
his  defense.'* 


40.  Slsk  V.  American  Cent.  Fire  Ins.  Co.. 
95   Mo.   App.    695. 

41.  Action  to  set  aside  fraudulent  re- 
lease of  legatee's  share  [Comp.  Laws  1SS7, 
§  48S4] — Ward  v.  Du  Free  (S.  D.)  94  N.  W. 
397. 

42.  Kurd's  Rev.  St.  c.  110,  §  18 — CoHier 
V.    Grey,    105   111.    App.    485. 

43.  Klnzle  v.  Riely's  Ex'r  (Va.)  42  S.  E. 
872. 

44.  Thompson  v.   O'Connor,  115  Ga.   120. 

45.  Affidavit  of  physician  as  to  sickness 
and  of  attorney  as  to  materiality  of  evi- 
dence— McMahan  v.  Norick  (Okl.)  69  Pac. 
1047.  A  personal  affidavit  was  made  by  the 
party — Low,  Hudson  &  Gray  Water  Co.  v. 
Hickson    (Tex.  Civ.  App.)    74   S.  W.   781. 


46.  Low,  Hudson  &  Gray  Water  Co.  v. 
Hickson    (Tex.   Civ.   App.)    74   S.   W.   781. 

47.  Engelstad  v.  Dufresne  (C.  C.  A.)  116 
Fed.    582. 

48.  Hibbets  V.  Hibbets.   117   Iowa,   177. 

49.  Saastad  v.  Okeson  (S.  D.)  92  N.  W. 
1072. 

50.  Scott  v.  Whipple   (Ga.)    42  S.   E.   519. 

51.  Especially  where  it  appears  that  he 
would  probably  soon  be  in  a  condition  to  at- 
tend— Morehouse  v.  Morehouse,  136  Cal.  332 
68    Pac.    976. 

52.  Doug-lass  v.  Douglass,  24  Ky.  L.  R 
2398,  74  S.  W.  23.'5. 

53.  Southern  Ry.  Co.  v.  Beach  (Ga.)  43 
S.   E.    413. 

54.  Crabtree  Coal  Min.  Co.  v.  Sample's 
Adm'r,    24   Ky.   L.   R.    1703,   72   S.  W.    24. 


622 


CONTINUANCE, 


§  2C 


(§2)  C.  Inability  to  procure  evidence  or  to  examine  witnesses!^^ — A  continu- 
ance because  of  absence  of  a  witness  should  be  allowed  if  it  appears  that  a  deposition 
could  not  be  procured  within  a  reasonable  time  granted  on  denial  of  the  continu- 
ance;''® and  in  an  action  against  a  corporation  for  injuries,  because  of  the  absence 
of  the  president,  where  it  appears  that  he  was  in  possession  of  peculiar  material 
facts,  and  had  been  suddenly  called  to  the  bedside  of  his  dying  mother  f  and  trial 
in  divorce  should  be  postponed  because  of  the  absence  of  several  witnesses  without 
the  county  whose  testimony  was  material,  and  whose  attendance  plaintiff  could  not 
procure  though  defendant  had  produced  one  of  the  witnesses.^*  A  continuance 
should  be  granted  in  an  action  regarding  the  boundary  line  of  lands  where  it  appears 
that  a  survey  will  be  necessary  to  determine  the  line  and  that  one  of  the  parties 
owing  to  inclement  weather  was  unable  to  be  present  and  cross-examine  the  other 
on  the  taking  of  their  depositions;^'  or  to  allow  plaintiff  to  procure  testimony  of 
great  importance,  discovered  after  the  term  opened,  especially  where  his  attorney 
who  was  preparing  the  case  became  disabled  just  before  the  term;®°  but  not  to 
allow  plaintiff  in  damages  for  trespass,  to  produce  evidence  to  complete  its  chain  of 
title,  where  the  evidence  showed  title  only  to  land  as  to  which  the  title  was  not  un- 
disputed;®^ nor  for  failure  of  defendant  to  produce  a  deposition  after  permission 
was  properly  denied  plaintiff  to  take  the  deposition  and  after  a  continuance  to  the 
latter  to  supply  the  evidence,  there  being  no  proof  that  such  evidence  had  ever  been 
taken  by  defendant.®^  A  continuance  will  not  be  granted  because  of  absence  of  a 
witness  whose  evidence  is  purely  cumulative  f^  nor  where  the  evidence  sought  to  be 
proved  by  him  could  not  be  admitted  ;®*  nor  unless  diligence  of  the  party  in  secur- 
ing material  evidence  is  shown  ;®^  nor,  as  a  matter  of  right,  where  the  party  relied 
upon  the  witness'  promise  to  attend  and  did  not  subpoena  him;®®  nor  where  it  was 
not  reasonably  probable  that  his  presence  could  be  obtained,  and  where  his  deposi- 
tion had  been  taken  before  the  trial  ;®^  nor  where  the  testimony  of  the  witness  is 
not  shown  to  be  material  and  it  does  not  appear  that  it  could  not  have  been  supplied 
by  other  witnesses;®^  nor  where  no  order  of  court  has  been  obtained  authorizing 
service  of  a  subpoena  on  a  witness  outside  of  the  county  of  trial;®®  nor  where  it 
appears  that  part  of  the  witnesses  afterward  testified  to  facts  which  were  not  dis- 
puted and  the  affidavit  did  not  state  what  evidence  was  expected  of  other  absent 
witnesses  ;■'"  nor  where  it  appears  that  a  commission  was  taken  for  his  deposition 
which  was  never  placed  in  the  hands  of  the  officer  for  execution,  and  the  witness 
had  removed  from  the  county  and  could  not  be  located  ;^^  nor  where  the  affidavit 


65.  Sufficiency  of  showing  of  diligence  by 
party  for  whom  a  deposition  was  taken,  but 
which  was  withheld  by  the  commissioner 
because  of  nonpayment  of  fees,  in  order  to 
entitle  him  to  a  continuance  to  secure 
testimony — Kurd's  Rev.  St.  e.  HO,  §  42 — 
Hall   V.   Hale's   Estate,   202   111.   326. 

56.  Gatzmeyer  v.  Peterson  (Neb.)  94  N. 
W.   974. 

57.  Langdon-Creasy  Co.  v.  Rouse,  24  Ky. 
L.    R.    2095,   72  S.   W.   1113. 

58.  Church  v.  Church,  81  App.  Div.  (N. 
Y.)    349. 

59.  Chenault  v.  Spencer,  24  Ky.  L.  R.  141, 
68   S.   W.    128. 

60.  Kentucky  Union  Co.  v.  Patton,  24  Ky. 
L.  R.   701,  69   S.  W.   791. 

61.  Kentucky  Land  &  Immigration  Co.  v. 
Orabtree,   24   Ky.  L.  R.   743. '70   S.  W.   31. 

62.  Wetta  V.  New  Orleans  &  C.  R.  Co.,  107 
La.    383. 

63.  Scott  V.   Boyd    (Va.)    42   S.  E.   918. 


64.  Wood  V.  Farmer's  Life  Ass'n  (Iowa) 
95   N.   "W.   226. 

65.  McDermott  v.  Manley  (Neb.)  90  N.  W. 
1119;  American  Cent.  Ins.  Co.  v.  Heath  (Tex. 
Civ.  App.)  69  S.  W.  235.  Sufficiency  of  cir- 
cumstances showing  diligence  urder  Code,  S 
3664 — Hibbets  v.  Hibbets,   117  Iowa,   177. 

66.  Hughes  V.  Humphreys,  102  111.  Add 
194. 

.67.  Board  of  Internal  Imp.  v.  Moore's 
Adm'r.    25   Ky.   L.    R.    15,    74   S.    W.    683. 

68.  Taylor  v.  Nevada-California-Oregon 
Ry.,  26  Nev.  415.  69  Pac.  858;  John  S.  Met- 
calf  Co.  V.  Nystedt,  102  111.  App.  71.  The 
affidavit  must  show  the  materiality — Lomax 
V.    Holbine    (Neb.)    90   N.    W.    1122. 

69.  Abby  V.  Dexter  (Colo.  App.)  72  Pac 
892. 

70.  Illinois  Cent.  R.  Co.  v.  Taylor  24  Kv 
L.  R.   1169,   70  S.   TV.   825.  ' 

71.  Action  for  personal  Injuries— St.  Louis 

^4  1   W.^7^83.'^°"   ^'   ^""^^^^   ^^^"^   '''^-   ^PP-> 


§  2D 


GROUNDS. 


623 


does  not  .show  that  he  was  the  only  witness  who  could  testify  to  such  facts,  or  that 
the  facts  were  true,  or  that  his  attendance  and  deposition  could  be  obtained  at  a 
later  term,  or  why  his  deposition  had  not  been  taken  during  the  preceding  year  in 
which  the  case  was  pending  ;^2  nor  where  the  witness  did  not  testify  on  a  former 
trial  and  no  effort  was  made  to  secure  his  testimony  while  he  was  within  reach  of 
process,  and  it  does  not  appear  from  the  affidavit  that  if  the  motion  were  gi-anted 
his  presence  could  be  securedJ^  A  continuance  because  of  the  absence  of  two  wit- 
nesses is  properly  denied  where  the  deposition  of  one  of  them,  residing  in  another 
county,  had  not  been  taken,  and  the  testimony  of  the  other  had  not  appeared  ma- 
terial.'^^  A  continuance  is  properly  refused  near  the  close  of  a  trial  of  an  action 
to  cancel  a  deed  for  fraud,  for  the  purpose  of  taking  a  supplemental  deposition  of 
a  party  who  was  sick,  where  the  court  states  that  the  proposed  testimony  would  be 
valueless  f^  and  for  the  absence  of  evidence,  where  it  appears  that  the  party  asking 
the  continuance  refused  to  pay  the  charges  for  the  taking  of  the  deposition  of  the 
absent  witnesses,  and  it  is  not  shown  that  the  amount  was  unreasonable  or  that  she 
was  unable  to  pay;^^  but  a  party  for  whom  a  deposition  is  taken  is  not  bound  to 
pay  an  illegal  amount  demanded  by  the  commissioner  in  addition  to  the  statutory 
fees,  in  order  to  secure  the  deposition  and  rely  on  a  restitution  of  the  excess  bj^^  the 
court,  in  order  to  make  a  showing  of  diligence  on  applying  for  a  continuance  to 
procure  testimony.'^'  Where  it  appears  from  the  application  that  an  adjournment 
for  90  days  cannot  be  allowed  to  enable  a  party  to  produce  witnesses  because  28 
days  have  already  elapsed  since  service  of  summons,  and  the  materiality  of  the  evi- 
dence and  the  diligence  of  the  party  in  attempting  to  secure  attendance  of  witnesses 
does  not  clearly  appear,  the  granting  of  an  adjournment  is  wholly  within  the  dis- 
cretion of  the  courts* 

(§2)  D.  Surprise  in  pleadings  or  evidence  or  change  in  theory  of  action. — A 
continuance  will  not  be  granted  as  a  matter  of  right  because  the  issues  are  made  up 
sooner  than  expected  if  they  are  made  up  regularly;^®  nor  because  an  issue  in  the 
case  had  not  been  made  up  until  the  term  for  final  submission  of  the  cause,  where 
that  issue  was  expressly  reserved  by  the  court  and  continued  until  the  succeeding 
term.^**  Where  plaintiff  in  an  action  for  personal  injuries  changed  the  theory  of 
his  proof  as  to  negligence  of  defendant's  servant,  defendant  should  have  been 
granted  a  continuance.^^  A  continuance  will  not  be  granted  because  of  the  filing 
of  an  amended  answer,  substantially  the  same  as  the  original,  on  the  day  of  trial, 
where  no  affidavit  was  filed  showing  a  reason  for  continuance  ;^2  nor  because  of 
amendment  of  the  complaint,  notice  of  which  was  properly  served,  where  the  trial 
was  not  held  until  the  8th  day  of  the  term  and  it  did  not  appear  that  witnesses 
were  absent;^'  nor  because  of  amendment  of  a  complaint  at  the  close  of  the  evi- 
dence to  conform  to  the  proof,  where  the  amendment  presented  no  new  issue,  and 
it  does  not  appear  from  affidavits  filed  in  support  of  a  motion  for  new  trial,  that 
defendant  could  have  produced  other  evidence.^*     Where  it  appears  in  a  suit,  which 


72.  John    S.    Metcalf    Co.    v.    Nvstedt,    203 
in.    333. 

73.  Doll  V.   Stewart    (Colo.)   70  Pac.  326. 

74.  Chicago,    R.    I.    &   T.    Ry.    Co.   v.   Long 
(Tex.)    75   S.   W.   483. 

7.n.     Haynes  v.  Harriman   (Wis.)   92  N.   W. 
1100. 

7«.     Hall  V.   Muggeridge,    103  111.   App.   593. 

77.  Hall  jr.  Hale's  Estate,    202   111.    326. 

78.  Consol.    Laws    1882,     c.     410,    §    1364 — 
Weston  V.  Proctor,  37  Misc.    (N.  Y.)    800. 

79.  Palmer  v.   Caywood    (Neb.)    89   N.   W. 
1034. 


80.  Douglass    v.    Douglass,    24    Ky.    L     R 
2398,    74    S.   W.    233. 

81.  Choctaw.    O.   &   G.   R.    Co.    v.   Donavan 
(Ark.)    72    S.    W.    48. 

82.  Roach   v.   T.   J.   Moss   Tie  Co..   24   Ky, 
L.  R.  1222,  71  S.  W.  2. 

83.  J.     I.     Case    Threshing    Mach.    Co.    v 
Eichinger   (S.  D.)   91  N.  W.  82. 

84.  Montana   Ore   Purchasing  Co.    v.    Bos- 
ton &  M.   Consol.   Copper  &  Silver  Min.  Co 
27   Mont.    288,    70   Pac.    1114. 


624 


CONTINUANCE. 


§3 


is  the  consiolidation  of  two  suits,  that  a  party  was  surprised  by  collusion  between 
the  parties  to  the  other  suit  and  the  abandonment  by  defendant  therein  of  his  de- 
fense, he  should  be  granted  a  continuance.*^  Defendant  in  replevin  need  not  be 
granted  a  continuance  to  procure  testimony  to  meet  the  increase  in  values  of  the 
property,  in  the  amendment  by  plaintiff  of  her  petition,  making  their  value  greater 
than  that  alleged  in  her  affidavit.^®  A  continuance  is  properly  refused  on  the 
ground  of  surprise,  by  reason  of  admission  of  papers  in  a  suit  on  a  book  ac- 
count, none  of  which  were  referred  to  in  the  statement  of  account;*^  or  on  the 
ground  that  defendant  in  trespass  to  try  title  was  surprised  in  the  testimony  of 
the  original  trustee,  who  held  property  which  was  sold  under  the  trust  deed  by  a 
substitute  trustee,  that  he  was  not  disqualified  and  had  not  been  requested  to  sell, 
since  the  evidence  of  the  appointment  of  the  substitute  trustee  would  be  made  to 
sufficiently  appear.**  Defendant  in  a  suit  for  personal  injuries  is  not  entitled  to 
a  continuance  on  the  ground  of  surprise  because  of  evidence  of  injury  developed  by 
a  physical  examination  of  plaintiff  made  at  defendant's  request  f^  nor  can  defendant 
in  quo  warranto  ask  for  a  continuance  because  of  surprise  in  the  execution  of  cer- 
tain deeds  of  corporations,  in  that  they  were  admitted  in  evidence  in  a  similar  pro- 
ceeding against  him,  if  the  record  does  not  show  such  fact  and  if  the  deeds  were 
admitted  their  execution  was  not  denied  in  the  former  suit.®"  A  motion  to  dis- 
charge a  jury  and  postpone  the  trial  because  of  the  misleading  effect  of  the  admis- 
sion of  testimony  as  to  damages  afterwards  excluded  is  properly  denied  where  no 
witnesses  have  been  discharged  nor  documentary  evidence  in  possession  of  counsel 
removed  during  the  trial,  and  no  offer  was  made  to  present  further  testimony."^ 
Where,  after  two  continuances  by  consent,  a  deed  was  filed  by  defendant  in  the 
cause  and  was  finally  temporarily  withdrawn  on  notice  for  record,  and  refiled,  and 
an  affidavit  of  forgery  was  filed  against  the  deed  by  one  of  the  plaintiffs  the  day 
before  trial,  a  continuance  sought  by  such  plaintiff  is  properly  refused  because  of 
lack  of  diligence,  where  based  on  the  ground  that  he  discovered  for  the  first  time 
when  he  filed  his  affidavit,  that  defendants  would  rely  upon  the  deed  for  title  and 
wish  to  obtain  evidence  to  prove  its  forgery.®^ 

§  3.  Admission  or  stipulation  to  avoid  continuance  or  postponement. — ^The 
application  for  a  continuance  because  of  absence  of  a  witness  may  be  denied  where 
the  otlier  party  admits  that  the  facts  recited  in  the  application  and  desired  to  be 
proved  by  such  witness  are  true,''^  but  he  must  admit  the  truth  of  facts  to  which 
it  is  claimed  the  absent  witness  would  testify  and  not  merely  that  the  witness  would 
so  testify."  The  admission  will  not  deprive  plaintiff  of  the  right  to  object  to  the 
relevancy,  competency  and  materiality  of  the  facts  sought  to  be  proved,®^  nor  from 
objecting  to  conclusions  of  the  witness  as  they  appear  in  the  affidavit  in  order  to 
keep  them  from  being  read  to  the  jury,»«  nor  will  the  admission  authorize  the  exclu- 
sion of  otlier  evidence  to  the  same  facts,"  but  it  will  operate  as  a  waiver  of  his 
right  to  cross-examine  the  witness  as  to  his  knowledge  of  the  facts  on  which  he 
based  his  opinion.'* 


85.  Vaught  V.  Murray,  24  Ky.  L.  R.  1587, 
71   S.  W.   924. 

SC.  Chandler  v.  Parker,  65  Kan.  860,  70 
Pac.    368. 

87.  B.  Frank  Coe  Co.  v.  Elchenberg,  22 
Pa.    Super.    Ct.    287. 

88.  Bemis  v.  "Williams  (Tex.  Civ.  App.) 
74   S.   W.    332. 

89.  Louisville  &  N.  R.  Co.  v.  Richmond, 
23    Ky.   L.    R.    2394.    67   S.   W.    25. 

90.  Lyons  &  E.  P.  Toll  Road  Co.  v.  People, 
29    Colo.    434,   68    Pac    275. 


91.  Fidelity  &  Deposit  Co.  v.  L.  Buck!  & 
Son   Lumber   Co.,    189   U.   S.    135. 

92.  Collins   V.    Weiss    (Tex.    Civ.   App.)    74 
S.    W.    46. 

9.1.     St.    Louis    S.    W.    Ry.    Co.   v.   Campbell 
(Tex.    Civ.    App.)    75    S.    W.    564. 

94.  Louisville  &  N.  R.  Co.  v.  Voss  (Tenn.) 
72   S.  W.   983. 

95.  Code  Civ.  Proc.  §  1039 — Tague  v.  John 
Caplice  Co.  (Mont.)  72  Pac.  297. 

96.  Indiana   Ry.    Co.    v.   Maurer    (Ind.)    66 
N.   E.   156. 


§7 


PROCEEDINGS. 


625 


§  4.  The  application. — The  continuance  may  be  granted  at  any  stage  of  the 
case  and  on  such  terms  as  may  seem  just.®^  Postponement  is  properly  denied  where 
defendant  fails  to  object  to  the  bill  of  particulars  for  three  weeks  after  it  is  filed 
without  giving  reason  for  the  delay.^  An  application  verified  by  an  attorney  on 
information  and  belief  is  insufficient.^  The  application  is  properly  denied  where  a 
rule  of  the  court  requires  that  it  must  be  filed  on  or  before  the  first  day  of  the  term 
and  it  appears  that  it  was  not  filed  until  the  trial  was  called,  and  it  does  not  appear 
that  the  party  had  used  reasonable  diligence  to  procure  counsel  and  the  presence 
of  witnesses.' 

§  5.  Affidavits  or  showing. — An  affidavit  for  a  continuance  because  of  absence 
of  a  witness  is  insufficient  which  simply  avers  that  there  is  no  other  witness  whose 
testimony  can  be  so  readily  procured  ;*  or  where  it  does  not  set  out  facts  as  to  which 
he  will  testify,  or  does  not  show  that  there  are  other  witnesses  available  who  will 
testify  to  the  same  facts.''  Where  the  statements  of  an  absent  witness  made  in  writ- 
ing are  admitted  as  his  evidence  on  motion  for  a  continuance  because  of  his  absence, 
they  may  be  contradicted  by  an  affidavit  by  the  witness  at  another  time  and  place, 
where  it  had  been  agreed  between  counsel  that  such  contradiction  might  be  made.® 
A  continuance  is  properly  granted  in  an  action  by  a  bank  on  the  ground  of  the  ill- 
ness of  the  president  and  the  necessity  of  his  presence  at  the  trial,  though  all  the 
testimony  which  he  is  expected  to  give  is  not  set  out  in  the  affidavit,  if  sufficient 
appears  to  show  its  materiality.'^ 

§  6.  Hearing  and  order. — The  affidavits  of  counsel,  their  admissions  and  their 
unsworn  statements  in  open  court,  may  be  considered  by  the  judge  on  a  motion  for 
a  continuance.®  A  defendant  in  divorce,  directed  by  the  court  to  pay  plaintiff  a 
certain  amount  for  counsel  fees  in  order  that  she  might  prepare  for  trial  and  sub- 
poena witnesses,  is  estopped  by  his  failure  to  do  so  until  time  of  the  trial  from 
opposing  plaintiff's  motion  for  a  postponement.*  Improper  grant  of  a  continuance 
by  a  justice,  as  against  plaintiff,  on  the  ground  that  defendant's  attorney  will  be 
engaged  in  another  court  on  the  day  of  trial,  will  not  affect  a  judgment  for  plain- 
tiff.^» 

§  7.  Continuance  hy  operation  of  law. — The  general  rule,  usually  enacted  into 
the  statutes,  is  that  all  undisposed  of  cases  are  continued  to  the  next  term  without 
order,^^  If  a  motion  for  a  new  trial,  set  for  a  particular  day  by  an  order  entered 
in  term,  is  not  heard  or  dismissed,  it  must  be  continued  to  a  later  day  by  express 
written  order  or  it  will  go  over  to  the  next  term,  unless  disposed  of  as  provided  bv 
statute  on  notice  in  vacation.^^ 


9T.  St.  Louis  S.  W.  Ry.  Co.  v.  Campbell 
(Tex.   Civ.   App.)    75    S. '  W.    564. 

98.  American  Hardwood  Lumber  Co.  v. 
Nickey    (Mo.    App.)    73    S.    W.    331. 

99.  Civ.  Code,  §  328 — McMahan  v.  Norlck 
(Okl.)    69   Pac.   1047. 

1.  Schram  v.  Rudnick,  37  Misc.  (N.  Y.) 
821 

a!  Rev.  St.  1895,  art.  1276 — Gulf,  C.  &  S. 
F.  Ry.  Co.  V.  Brown  (Tex.  Civ.  App.)  75  S. 
W.  807. 

3.  Miles  V.  Ballantine  (Neb.)  93  N.  W. 
708. 

4. 
892. 


Abby  V.  Dexter  (Colo.  App.)  72  Pac. 
Dledrich  v.  Dledrich  (Neb.)  94  N.  W. 
Hutmacher  v.    Charleston   ConsoL   Ry., 


636. 
6. 
Gas  &  Qlec.  Co..  63  S.  C.   123. 


7.  Ida  County  Sav.  Bank  v.  Seldenstlcker 
(Iowa)    92   N.   W.    862. 

8.  Heyward  v.  Middleton,  65  S.  C.  493. 

9.  Church  V.  Church,  81  App.  Div.  (N.  Y.) 
349. 

10.  Dlsquo  V.  Herrlngton  (Cal.)  72  Pac. 
336. 

11.  4  Enc.  PI.  &  Pr.  830  and  cases  cited. 
Motion  to  set  aside  a  default  w^as  filed  at 
the  same  term  of  entry  of  Judgment,  and 
was  pending  at  the  end  of  that  term  [1 
Starr  &  C.  Ann.  St.  1896,  p.  1160] — Donald- 
son V.  Copeland.   201   111.   540. 

12.  Construction  of  Civ.  Codes,  §§  4323, 
4324 — Atlanta,  K.  &  N.  Ry.  Co.  v.  Strick- 
land, 114  Ga.  998.  See,  also,  Napier  v.  Heil- 
ker,    115    Ga.    168. 


Cur.  Law- 


626 


CONTRACTS. 
Edwin  C.  Crampton. 


§   1 


i   !•     Nature     and     Formal     Requisites.— A. 

Formal  Requisites.  B.  Offer  and  Acceptance. 
C.  Reality  of  Consent. 

5  2.  Consideration. — Necessity;  "Validity: 
Mutual  Promises;  Forbearnnce  or  Compro- 
mise; Legal  Duty;  Subscriptions;  Change  or 
Substitution  of  New  Contract;  Adequacy; 
Past  Consideration;  Expressing  Considera- 
tion; Want  or  Failure. 

§3.  Validity  of  Contract. — A.  General  Prin- 
ciples. B.  Subject-matter  or  Consideration. 
C.  Mutuality.  D.  Unreasonableness.  E.  Pub- 
lic Policy  In  General.  F.  Limitations  of  Lia- 
bility. G.  Relating  to  Marriage  or  Divorce. 
H.  Sunday  Contracts.  I.  P.elating  to  Prop- 
erty. J.  Litigious  Agreements.  K.  Com- 
pounding Offenses.  L.  Inte.-fering  with  Pub- 
lic Service.  M.  Restraint  of  Trade.  N.  Effect 
of  Invalidity. 

§  4.  Interpretation. — A.  General  Rules.  B. 
What  Is  Part  of  Contract.  C.  Character, — 
Joint  or  Several,  etc.  D.  Language  Used.  E. 
Custom  or  Usage.  F.  As  to  Subject-matter. 
G.  As  to  Parties.  H.  As  to  Place  and  Time. 
I.  As  to  Compensation.    J.  As  to  Compromise 


or  Arbitration.  K.  As  to  Performance.  L. 
As  to  Acceptance  of  Performance.  M.  Elec- 
tions and  Options. 

§  5.      Conflict  of  Lia-fTS. 

§  0.      Modification  and  Merger. 

§  7.  Diseliarg^e  by  Performance  or  Breach. 
— A.  General  Rules.  B.  Acceptance  and 
Waiver.  C.  Excuses  for  Breach.  D.  Suffi- 
ciency of  Performance.  E.  Rights  after  De- 
fault. 

§  8.     Damages  for  Breach. 

§  9.  llescission  and  Abandocnient.  —  A. 
What  Contracts  and  Manner  of  Rescission. 
B.  Causes.  C.  Waiver.  D.  Time.  E.  Condi- 
tions Precedent.  F.  Under  Terms  of  Con- 
tract. G.  By  Agreement.  H.  Rights  on  Re- 
scission. I.  Actions  for  Rescission.  J.  Aban- 
donment. 

§  10.  Remedies  for  Breach. — A.  Rights  of 
Action  In  General.  B.  Form  of  Action.  C. 
Accrual.  D.  Conditions  Precedent.  E.  De- 
fenses and  Recoupment.  F.  Place  of  Trial. 
G.  Parties.  H.  Pleading  and  Proof.  I.  Evi- 
dence. J.  Questions  of  Law  and  Fact.  K. 
Instructions.    L.  Verdict  and  Judgment. 


§  1.  Nature  and  formation  of  the  contract. — It  is  intended  here  to  treat  only 
of  the  general  principles  of  contracts,  leaving  more  extended  and  particular  treatment 
of  the  various  kinds  of  contracts  to  the  particular  articles  devoted  to  them.^ 

(§  1)  A.  Formal  requisites  of  contract.'^ — Where  negotiations  have  proceeded 
by  correspondence,  one  party  may  object  that  the  contract  is  not  complete  on  refusal 
of  the  other  to  sign  the  written  agreement  f  but  a  contract  may  be  final,  if  complete  in 
terms,  though  the  parties  intend  that  it  should  be  reduced  to  formal  writing,*  or  if 
all  substantial  terms  have  been  settled,  unless  it  has  been  clearly  imderstood  that 
formal  execution  was  necessary."  It  is  not  always  necessary  that  both  parties  sliould 
sign  the  contract,*^  but  it  must  be  executed  as  to  both.''  The  contract  may  be  formed 
by  correspondence.*     Parol  contracts  for  life  insurance  are  valid  and  enforceable.* 


1.  Bonds,  Negotiable  Instruments,  Deeds, 
Mortgages,  Gambling  Contracts,  Building  and 
Construction  Contracts,  Public  Coatracts, 
and  many  other  titles. 

The  reader  who  desires  to  consult  a  gen- 
eral treatise  will  find  in  Hammon  on  Con- 
tracts an  analysis  Identical  with  this  in 
many  particulars. 

2.  Execution  of  contracts  by  particular 
kinds  of  parties,  see  Husband  and  Wife,  Cor- 
porations, States,  United  States,  Counties, 
Municipal  Corporations. 

Sufficiency  of  execution  of  written  con- 
tract for  employment  of  school  teacher  un- 
der St.  §  4445 — Mingo  v.  Trustees  of  Colored 
Common-School  Dist.  No.  A,  24  Ky.  L.  R. 
288,  68  S.  W.  483.  A  written  contract  for 
the  hiring  of  convict  labor  in  Nebraska 
must  be  executed  by  the  warden  of  the 
penitentiary  and  approved  by  the  governor 
and  the  board  of  public  lands  and  buildings. 
(Comp.  St.  c.  86,  §  16) — State  v.  Mortensen 
(Neb.)  95  N.  W.  831.  A  formal  vote  or  writ- 
ten entry  of  assent  by  directors  of  a  corpora- 
tion is  not  necessary  to  validity  of  a  con- 
tract If  all  are  present  and  actually  assent — 
Indiana  Bermudez  Asphalt  Co.  v.  Robinson, 
29  Ind.  App.  59. 

3.  Harbor  Point  Club-House  Ass'n  v. 
Young,  99  111.  App.   292. 

4.  Lowrey  v.  Danforth.  95  Mo.  App.  441. 


5.  Dlsken  v.  Herter,  73  App.  Div.  (N.  Y.) 
453. 

6.  A  written  agreement  w^hereby  a  man 
agreed  with  a  pregnant  woman  to  make  cer- 
tain payments  and  support  the  child,  in  con- 
sideration of  which  she  agreed  to  make  no 
further  claim  on  him  was  binding  on  her 
after  she  accepted  the  payments  though  she 
failed  to  sign  it — Schnurr  v.  Quinn,  83  App. 
Dlv.   (N.  T.)   70. 

7.  Arnold  v.  Scharbauer,  116  Fed.  492. 
The  Intention  may  be  clearly  shown  by  state- 
ments In  negotiations — Hinote  v.  Brigman 
(Fla.)  33  So.  303.  Where  negotiations  for  a 
contract  were  carried  on  by  correspondents, 
the  offer  was  accepted,  the  acceptance  ac- 
knowledged, and  a  final  message  calling  for 
the  contract  transmitted,  but  both  parties 
understood  that  the  written  contract  was  to 
be  executed,  the  terms  of  which  were  not  aU 
settled,  there  was  a  failure  of  the  contract 
and  not  a  completed  agreement,  subject  only 
to  be  reduced  to  writing — Brauer  v.  Oceanic 
Steam  Nav.  Co.,  77  App.  Div.   (N.  Y.)    407. 

8.  An  agreement  in  a  letter  written  by 
one  party  and  accepted  by  the  other  reciting 
as  between  them  that  one  v,ras  entitled  to 
receive  certain  property  in  return  for  serv- 
ices rendered  under  a  former  contract,  is  a 
contract  disposing  of  all  the  liability  of  the 
other  party  under  the  former  contract — Spier 


§  ic 


OFFER  AND  ACCEPTANCE.  CONSENT. 


627 


A  signature  to  a  church  subscription  by  surname  followed  by  the  word  "famil/'  will 
bind  the  signer  as  his  full  name.^** 

(§  1)  B.  Offer  and  acceptance}''- — An  offer  may  be  withdrawn  at  any  time  be- 
jfore  notice  or  knowledge  of  acceptance  without  liability  to  the  party  making  the  of- 
fer.^^  It  is  revocable  until  the  opposite  party  has  changed  his  condition  and  may  be 
withdra"WTi  without  breach  before  that  time.^^  A  mere  offer  not  assented  to  does  not 
amount  to  a  contract,^*  and  the  rule  extends  to  an  offer  to  modify  a  contract  already 
niade.^®  Acceptance  of  an  offer  completes  a  contract.^*  It  must  be  unconditional 
and  identical  with  the  terms  of  the  offer.^''  It  may  be  shown  by  acts  amounting  to 
acquiescence  in  the  offer.^®  If  unconditional,  it  binds  both  parties  though  the  offer 
contains  a  mistake  as  to  terms.^®  Wliere  one  party  makes  a  definite  statement  of 
terms  which  the  other  accepts  in  so  many  words,  the  contract  is  not  unilateral.-" 
An  acceptance  of  "the  within"  contract  which  consists  of  two  propositions  in  alter- 
native form,  one  to  sell,  the  other  to  buy  land,  will  not  apply  to  both  so  that  part  per- 
formance of  one  applies  to  the  other.^^  'V\niere,  after  certain  negotiations  during 
which  an  offer  of  two  alternatives  as  to  terms  was  made,  one  party  accepted  one  of 
the  alternatives  and  the  other  replied  by  asking  for  immediate  performance,  the  offer 
and  acceptance  was  complete.^^ 

(§1)  C.  Reality  of  consent. — There  can  be  no  contract  without  the  assent  of 
the  parties.^^  The  minds  of  the  parties  must  meet  as  to  the  terms  of  the  contract.^* 
One  who  has  signed  a  contract,  no  fraud  being  practiced  upon  him,  is  conclusively 


V.  Hyde,  78  App.  Div.  (N.  Y.)  151.  Sufficiency 
of  evidence  of  Implied  contract  to  pay  for 
board  of  a  relative — Danes  v.  Slitor,  118  Iowa, 
81. 

9.  Pacific  Mut.  Ins.  Co.  v.  Shaffer  (Tex. 
Civ.  App.)  70  S.  "W.  566;  Commercial  Union 
Assur.  Co.  V.  Urbansky,  24  Ky.  L.  R.  462,  68 
S.  W.  653;  Fire  Ins.  Co.  v.  Sinsabaugh,  101 
III.  App.  55;  Continental  Ins.  Co.  v.  Roller, 
101  111.  App.  77;  Vining  v.  Franklin  Fire 
Ins.  Co..  89  Mo.  App.  311. 

10.  Hodg-es  V.  Nalty,  113  Wis.  567. 

11.  Sufliciency  of  offer  and  acceptance  In 
contract  of  sale — China  &  J.  Trading-  Co.  v. 
Davis  (C.  C.  A.)  119  Fed.  688;  Johnson  v. 
Corbett,  95  Md.  746. 

12.  Huber  Mfg.  Co.  v.  Smithgall,  19  Pa. 
Super.  Ct.   641. 

13.  Groomer  v.  McCully,   93  Mo.  App.   544. 

14.  "Van  Vlissingen  v.  Manning,  105  111. 
App.   255. 

15.  J.  K.  Armsby  Co.  v.  Blum,  137  Cal.  552, 
70  Pac.  669. 

16.  Jones  v.  Wattles   (Neb.)    92  N.  W.  765. 

17.  Monk  V.  McDaniel,  116  Ga.  108.  An 
offer  by  a  mortgagee  to  receive  less  than  the 
amount  due  in  payment  before  maturity,  is 
not  accepted  by  an  answer  of  the  mortgagor 
that  he  would  like  to  accept  and  he  ex- 
pected to  have  the  means  to  pay  in  about  two 
weeks,  and  was  withdrawn,  where  before  ac- 
tual acceptance  the  mortgagee  notified  the 
mortgagor  that  he  had  sold  the  mortgage 
for  its  face — Thurber  v.  Smith,  25  R.  I.   60. 

18.  Where  after  expiration  of  a  contract, 
an  option  was  given  for  continuation,  defend- 
ant's retention  and  continued  use  of  the 
property  held  under  it  thereafter  changed 
the  option  to  an  executed  contract  in  the 
absence  of  a  different  agreement — Bruck- 
man  v.  Hargadine-McKIttrick  Dry  Goods  Co., 
91  Mo.  App.  454.  Where  one  party  to  a  ver- 
bal contract  being  requested  by  the  other. 
prepared  and  signed  a  written  document  and 


sent  It  to  the  other  who  retained  It  without 
objection  and  acted  in  compliance  with  its 
terms,  the  latter  is  estopped  from  claiming 
that  the  writing  did  not  properly  express  the 
contract  between  them — Grafeman  Dairy  Co. 
V.  St.  Louis  Dairy  Co.,  96  Mo.  App.  495. 
Where  a  creditor  promptly  notifies  a  third 
party  of  his  acceptance  of  the  third  party's 
agreement  to  pay  his  debtor's  debts  in  cer- 
tain amounts,  and  thereafter  brings  a  suit  to 
enforce  the  terms  of  such  agreement,  he  has 
accepted  the  contract — Taylor  v.  Ingersoll 
(Colo.   App.)    71   Pac.   398. 

19.  Tliis  should  be  subject  to  the  condi- 
tion that  the  promisor  must  fail  to  show 
that  the  acceptor  could  not  reasonably  have 
supposed  that  the  offer  was  the  true  In- 
tention of  the  promisor  (See  Hammon  on 
Contracts,  §  95) — Postal  Tel.  Cable  Co.  v. 
Akron  Cereal  Co.,  23  Ohio  Circ.  R.  516. 

20.  Warden  Coal  Washing  Co.  v.  Meyer,  98 
111.  App.  640. 

21.  Bolton  V.  Huling,   195  111.   3S4. 

22.  Hartwig  v.  American  Malting  Co.,  74 
App.    Div.    (N.    Y.)    140. 

23.  Supplies  furnished  plaintiff's  employes 
cannot  be  set  up  as  a  defense  in  an  action 
for  a  balance  due  on  contract  if  plaintiff's 
order  for  the  supplies  is  not  shown — Izzo  v. 
Ludington.  79  App.  Div.    (N.  Y.)   272. 

24.  As  to  the  amount  of  goods  covered  by 
a  contract  of  sale — Singer  v.  Grand  Rapids 
Match  Co.  (Ga.)  43  S.  E.  755.  Where  it  Is 
shown  by  the  circumstances  at  the  time  of 
making  a  contract  for  the  delivery  of  ice. 
that  the  party  furnishing  the  ice,  did  not 
understand  that  deliveries  were  to  be  made 
to  several  dealers  who  had  formed  a  corpora- 
tion with  the  other  party  to  the  contract 
subsequent  to  its  execution,  but  the  other 
party  insisted  upon  such  compliance,  there 
was  no  meeting  of  the  minds  between  the 
parties — Consumers'  Ice  Co.  v.  E.  Webster. 
Son  &  Co.,  79  App.  Div.   (N.  Y.)   350. 


628 


CONTRACTS. 


§  ic 


presumed  to  know  and  assent  to  its  terms,  though  he  failed  to  read  it,"  and  cannot 
defend  on  the  ground  that  he  did  not  read  it  and  was  ignorant  as  to  its  contents  ;-* 
mere  ordinary  business  duties  will  not  excuse  negligence  in  failing  to  read  a  written 
contract  at  the  time  of  signing  so  as  to  prevent  the  inference  of  negligence."  A  set- 
tlement of  an  uncertain  boundary  line  by  an  executed  agreement  between  the  parties 
is  binding  on  them  and  their  purchasers  though  it  does  not  determine  the  true  line.^** 

Capacity  of  parties. — An  administrator  or  executor  cannot  bind  the  estate  by 
contracts  in  his  representative  capacity.^'  The  burden  is  on  one  seeking  to  avoid  a 
contract  for  mental  incapacity  to  prove  it.^°  Old  age  or  physical  infirmity  will  not 
raise  a  presumption  of  want  of  capacity  to  make  a  contract.^^  Contracts  between 
husband  and  wife  may  be  enforced  as  other  contracts.^^  That  a  man  and  his  wife 
are  aged  illiterates  not  acquainted  with  the  English  language  and  the  meaning  of 
technical  terms  used  in  conveyances,  and  that  for  this  reason  they  were  the  more 
easily  imposed  upon  by  their  attorney  in  procuring  a  mortgage,  does  not  show  them 
to  have  been  incapable  of  making  a  contract,^^  A  contract  made  by  one  while  drunk 
is  not  void  but  merely  voidable  at  his  election,  though  his  intoxication  be  caused  by 
the  other  party,  and  it  may  be  ratified  by  him  or  by  conduct  inconsistent  with 
rescission.'* 

Mistalce."^ — Where  parties  to  a  contract  are  mutually  mistaken  as  to  its  term? 
and  the  mistake  will  work  a  manifest  hardship  on  one  to  the  advantage  of  the  other. 
damages  will  not  be  allowed  for  breach  of  the  contract/®  though  one  of  the  parties 
was  negligent  in  ascertaining  its  contents  at  execution. ^^  One  signing  a  contract  un- 
der a  mistake  as  to  its  terms,  but  giving  no  attention  to  the  part  of  the  contract  con- 
cerning the  matters  as  to  which  he  was  mistaken,  there  being  no  relation  of  trust  or 
confidence  between  the  parties  excusing  his  lack  of  care,  is  bound  by  the  contract 
as  made.'*  If  a  patent  mistake  appears  and  the  opposite  party  knew  or  should 
have  known  of  it,  the  contract  is  incapable  of  enforcement.'^  A  mistake  accepted 
in  good  faith  by  the  other  party  cannot  prevent  enforcement  of  the  contract.*^' 
Where  the  scrivener  has  made  a  mistake  in  reducing  a  contract  to  writing,  and 
it  has  been  inadvertently  signed  by  a  part}^,  it  must  be  shown  in  what  way  tlie 
written  differs  from  the  oral  contract.*^  Where  a  contract  by  mistake  of  both  par- 
ties was  executed  on  a  blank  form  containing  provisions  different  from  those  agreed 
upon,  and  was  performed  as  intended  for  over  a  year,  the  attempt  of  one  party 
to  insist  on  the  contract  as  executed  was  fraudulent.*^  Mere  inability  to  read 
P^.nglish  will  not  enable  a  man  of  ordinary  intelligence  to  urge  that  he  did  not 
understand  a  contract  he  had  signed  where  he  does  not  claim  that  unfair  means 
were  used.*' 


25.  Johnston  v.  Covenant  Mut.  Life  Ins. 
Co.,  93  Mo.  App.  5S0;  Bostwick  v.  Mutual  Life 
Ins.  Co.   (Wis.)   92  N.  W.  246. 

20.  Catterlln  v.  Lusk  (Mo.  App.)  71  S.  W. 
1109.  Mere  ignorance  of  its  contents  will 
not  amount  to  mistake — Bostwick  v.  Mutual 
Life  Ins.  Co.   (Wis.)  92  N.  W.  246. 

27.  Wilcox  V.  Tetherington,  103  111.  App. 
404. 

28.  Egan  V.  Light  (Neb.)  93  N.  W.  S59. 

29.  Craig  v.  Anderson  (Neb.)  92  N.  W. 
640;  Hughes  v.  Treadaway.  116  Ga.  663.  Suf- 
ficiency of  evidence  of  mental  capacity  to 
contract — Lodge  v.  Hulings,  63  N.  J.  Eq.  159; 
Tuite  V.   Hart,   71   App.   Div.    (N.   Y.)    619. 

30.  Tuite  V.  Hart,  71  App.  Div.  (N.  T.) 
619. 

31.  Chadd  V.  Moser,  25  Utah,  369,  71  Pac. 
870. 

32.  Bea  v.  People,  101  111.  App.  132. 


33.  Hoffman  v.  Colgan,  25  Ky.  L.  R.  98,  74 
S.  W.   724. 

34.  Strickland  v.  Parlin  &  Orendorf  Co. 
(Ga.)   44  S.  E.   997. 

35.  In  execution  of  note — Bailey  v.  Wood. 
24  Ky.  L.  R.   801,   69  S.  W.   1103. 

30.  Singer  v.  Grand  Rapids  Match  Co. 
(Ga.)    43   S.  E.   755. 

37.  Story  v.  Gammell   (Neb.)   94  N.  W.  982. 

38.  Wood  V.  Wack  (Ind.  App.)  67  N.  E. 
562;  Bostwick  v.  Mutual  Life  Ins.  Co.  (Wis.) 
92  N.  W.   246. 

31).  Singer  v.  Grand  Rapids  Match  Co. 
(Ga.)    43   S.   E.    755. 

40.  In  estimates  on  an  offer  to  construct 
a  building — Brown  v.  Levy  (Tex.  Civ.  App.) 
69  S.  W^  255. 

41.  Story  V.  Gammell  (Neb.)   94  N.  W.  982. 

42.  Home  Sav.  Ass'n  v.  Noblesville  Month- 
ly Meeting    (Ind.  App.)    64  N.   E.   478. 


§  ic 


FRAUD   AND    UNDUE   INFLUENCE. 


629 


Fraud  and  misrepresentation  and  midue  influence.** — An  innocent  party  will 
always  be  relieved  from  obligation  resulting  from  fraud  ;*^  but,  if  tlie  fraud  con- 
sists in  false  representations,  he  must  be  actually  deceived  ;^^  the  misrepresentations 
must  pertain  to  matters  not  open  to  inspection  of  both  parties  alike,*^  and  musi 
relate  to  present  facts  and  not  merely  future  possibilities  or  opinions,*®  and  must 
have  been  relied  upon  by  the  party  to  whom  they  were  made,*®  and  it  is  insuffi- 
cient tliat  he  was  misled  as  to  the  meaning  of  the  contract  where  nothing  was  con- 
cealed from  him,^"  and  if  he  executed  the  contract  freely,  with  full  understanding 
of  his  acts,  the  fraud  is  harmless.^^  To  avail  him,  the  deceit  must  be  practiced 
at  time  of  signing.^^  ^  contract  will  not  be  set  aside  because  of  a  false  representa- 
tion that  it  embodies  the  verbal  understanding  of  the  parties  ;^^  it  is  only  when 
knowledge  is  in  possession  of  one  part}^,  and  the  other,  by  reason  of  absence  or 
other  sufficient  cause,  is  entitled  to,  and  does,  rely  upon  false  representations,  that 
they  avoid  the  contract/*  Insolvency  preventing  fulfillment  of  a  contract  is  in- 
sufficient to  constitute  fraud  which  will  vitiate  it.^^  If  notes  given  in  compliance 
with  a  previous  valid  contract  amount  to  no  more  than  a  satisfaction  thereof,  fraud 
in  procuring  the  maker  to  sign  the  notes,  or  drunkenness  at  the  time  of  execution 
makes  no  defense.*®  Eenewals  of  a  contract  induced  by  fraud  are  open  to  the 
same  defense.*'^ 

In  the  absence  of  undue  influence,  transactions  between  attorney  and  client 
are  held  valid,^®  if  a  full  and  valid  consideration  appears.^'  In  regard  to  a  con- 
tract of  employment  they  stand  on  an  equal  footing.®" 


43.  Muller  v.  KeUy,  116  Fed.  545. 

44.  What  constitutes  fraudulent  conceal- 
ment or  misrepresentation  vitiating  a  con- 
tract— Vodrey  Pottery  Co.  v.  H.  E.  Home 
Co.  (Wis.)  93  N.  W.  823;  Burnett  v.  Hen.sley 
(Iowa)  92  N.  W.  67S.  Fraud  must  always 
be  proven;  it  will  never  be  presumed — Ed- 
wards V.  Story.  105  111.  App.  433;  Fivey  v. 
Pennsylvania  R.  Co.,   67  N.  J.  Law,   627. 

45.  Equitable  Loan  &  Security  Co.  v.  War- 
ing (Ga.)  44  S.  E.  320;  Indiana,  D.  &  W.  R. 
Co.  v.  Fowler,  201  111.  152;  Bostwick  v.  Mu- 
tual Life  Ins.  Co.  (Wis.)   92  N.  W.  246. 

46.  Eccardt  v.  Eisenhauer,  74  App.  Div. 
(N.  Y.)   35. 

47.  Contract  for  dredging  a  channel  where 
both  parties  could  ascertain  locality  and 
depth  of  water — Rowland  Lumber  Co.  v.  Ross 
(Va.)  40  S.  B.  922. 

48.  Representations  as  to  future  cost  of 
manufacture  of  an  article  of  merchandise, 
made  to  secure  organization  of  a  corporation 
and  investment  of  capital,  are  as  to  future 
possibilities  not  present  facts  and  though 
wrong  will  not  avoid  the  contract — Macklem 
v.  Fales  (Mich.)  89  N.  W.  581.  Representa- 
tions made  by  one  party  to  a  dredging  con- 
tract after  soundings  in  the  harbor  tliough 
not  specific  as  to  actual  measurements,  are 
of  matters  of  fact  not  opinions  so  as  to  re- 
lieve the  other  party  from  performance 
where  the  statements  are  false  and  inten- 
tional and  the  other  party  being  absent  was 
entitled  to  rely  upon  them — Kingston  v.  L.  P. 
&  J.  A.  Smith  Co.  (C.  C.  A.)  114  Fed.  294. 
False  representations  as  to  the  quality  of 
land,  made  by  one  of  the  parties  to  an  ex- 
change at  the  time  of  the  exchange,  are  ex- 
pressions of  opinion  rather  than  statements 
of  fact  which  will  not  entitle  the  other  party 
to  avoid  the  contract — Tryce  v.  Dittus,  199 
111.  189.  A  mere  expression  of  opinion  as 
representation   on   the  making  of  a  contract 


does  not  amount  to  a  fraud.  In  the  absence 
of  any  showing  of  fiduciary  relations  between 
the  parties — Consumers'  Brew.  Co.  v.  Tobin. 
19  App.  D.  C.   353. 

49.  Hale  Elevator  Co.  v.  Hale,  201  111. 
131. 

50.  Nesblt  V.  Jencks,  81  App.  Div.  (N.  Y.  > 
140. 

51.  Metcalf  V.  Draper.  98  111.  App.  399. 
It  is  otherwise  if  he  has  been  actually  de- 
ceived— Story  V.  Gammell  (Neb.)  94  N.  W. 
982. 

52.  Bostwick  V.  Mutual  Life  Ins.  Co. 
(Wis.)    92  N.  W.    246. 

53.  The  other  party  must  examine  for 
himself — Johnston  v.  Covenant  Mut.  Life  Ins. 
Co..  93  Mo.  App.  580.  One  who  has  signed 
a  written  contract  without  investigating  its 
contents,  is  estopped  by  negligence  from  ask- 
ing relief  from  its  obligation,  though  his 
signature  is  procured  by  fraud — Ferrell  v. 
Ferrell   (W.  Va.)   44  S.  E.  187. 

54.  There  is  no  fraud  invalidating  a  con- 
tract, where  one  of  the  parties  on  the  false 
representation  of  the  other  that  it  embodies 
their  verbal  agreement,  does  not  himself 
read  it  but  takes  it  to  a  business  man  of  ex- 
perience and  at  his  advice  signs  it — Magee  v. 
Verity,  97  Mo.  App.  486.  One  party  who  is 
at  a  distance  from  the  subject  matter  of  a 
contract  is  entitled  to  rely  on  representa- 
tions of  the  other  party  as  to  its  condition 
and  is  not  bound  by  a  contract  resulting  from 
intentional  false  representations  on  which  he 
relied — Kingston  v.  L.  P.  &  J.  A.  Smith  Co. 
(C.  C.  A.)    114   Fed.   294. 

5.-;.     Stein  v.  Kill   (Mo.  App.)   71  S.  W.  1107. 

56.  Strickland  v.  Parlin  &  Orendorf  Co. 
(Ga.)    44   S.   E.   997. 

57.  Adams  v.  Ashman,  203  Pa.  536. 

58.  A  conveyance  whereby  an  attorney  re- 
ceived settlement  for  certain  fees  and  loans 
made    to    his    client    is    not    to    be    presumed 


630 


CONTRACTS. 


§  2 


Duress"^ — A  note  given  by  the  father  to  the  mother  of  a  bastard  while  he  is 
under  arrest  on  the  charge  is  not  void  for  duress.®^  ^  mere  threat  to  give  informa- 
tion in  aid  of  a  pending  prosecution  against  another  is  not  such  duress  as  to  avoid 
a  note  secured  from  him  in  settlement  of  claims.®' 

Ratifjcation. — A  nonenforceable  contract  may  be  ratified  as  well  after  as  be- 
fore suit;®^  but  as  to  one  under  disability  after  removal  thereof,  the  act  must  be 
voluntary  and  a  duty  which  the  party  recognizes  and  acknowledges.**'  Though  a 
contract  might  have  been  disaffirmed  for  good  cause,  failure  to  repudiate  after 
knowledge  of  all  facts  and  an  attempt  to  carry  out  the  provisions  and  enforce  the 
contract,  constitute  a  ratification  thereof.®®  The  negotiation  of  a  bill  of  lading 
by  shipper  after  receipt  is  a  ratification  or  adoption  of  its  terms  as  between  him 
and  the  carriers  operating  to  avoid  a  prior  valid  contract  under  which  the  goods 
were  shipped  and  under  which  rights  had  vested  and  obligations  accrued.®^ 

§  2.  Consideration.^^  Necessity  of  consideration. — On  a  sale  of  lands  the 
consideration  must  be  fixed.®®  Permission  given  by  the  county  commissioners' 
court  to  connect  with  the  county  sewer  not  founded  upon  consideration  is  only  a 
revocable  license  and  not  an  act  of  court  nor  a  contract.'^"  An  agreement  to  yield 
a  claim  to  lands  in  event  of  winning  a  pending  action  is  void  where  the  other 
party  neither  incurs  expense  nor  forbears  suit.'^^ 

Validity  of  consideration. — There  must  be  a  valuable  consideration  for  mod- 
ification or  extinguishment  of  an  existing  contract.'^^  There  must  be  a  valid  con- 
sideration.'''  An  agreement  to  marry  is  a  valid  consideration  for  a  transfer  of 
property.'^*  A  note  based  on  a  contract  void  as  against  public  policy  is  without 
consideration.'^'^  A  bond  to  perform  a  contract  under  a  void  ordinance  granting 
an  exclusive  franchise  is  invalid  as  to  consideration.''®  A  contract  containinsf  a 
recital  of  one  dollar  as  consideration  is  valid,  though  the  amount  is  not  actually  paid, 
since  it  creates  an  obligation  which  may  be  enforced  by  the  other  party. '^^ 

What  constitutes  a  consideration  in  general. — A  contract  whereby  a  railroad 
superintendent  agreed  to  employ  a  workman  for  life  as  flagman  at  a  certain  salary-, 
in  consideration  of  a  release  of  damages  for  injuries  resulting  from  the  negli- 


fraudulent    because    of    the    relation    of   the 
parties — Llndt  v.  Linder,  117  Iowa,  110. 

51).     Tippett  V.  Brooks  (Tex.  Civ.  App.)   67 

512. 

Clifford  V.  Braun,  71  App.  Div.  (N.  T.) 


S.  W 
60. 

432. 
61. 


Definition    of   duress — Batavian    Bank 
V.  North,   114  M'is.   637. 

62.  Jones  v.  Peterson,  117  Ga.   58. 

63.  Barger  v.  Farnham  (Mich.)  90  N.  W. 
281. 

64.  65.  Snyder  v.  Gerlcke  (Mo.  App.)  74  S. 
W.    377. 

66.  University  of  Virginia  v.  Snyder 
(Va.)  42  S.  E.  337.  Where  one  of  two  judg- 
ment creditors  having  a  lien  on  the  interest 
of  one  of  three  joint  tenants,  knows  that  the 
other  has  been  paid  the  amount  of  his  judg- 
ment by  the  purchaser  at  a  partition  sale, 
and  allows  a  settlement  to  be  made  by  her 
husband  with  the  purchaser,  such  settle- 
ment amounts  to  a  ratification  by  her  of  tlie 
retention  of  the  land  by  the  purchaser — 
Turner  v.  Baldwin,  81  App.  Div.   (N.  Y.)    639. 

67.  Farmers'  Loan  &  Trust  Co.  v.  North- 
ern Pac.  R.  Co.   (C.  C.  A.)    120  Fed.  873. 

68.  As  to  consideration,  see  Brown  v.  Ohio 
Nat.  Bank,  18  App.  D.  C.  598. 

69.  Pulford  V.  Dlmmick,  107  La.  403. 

70.  Fayette  County  v.  Krause  (Tex.  Civ. 
App.)    73  S.  W.  51. 


71.  East  Omaha  Land  Co.  v.  Hanson,  117 
Iowa.   96. 

72.  Gunby  v.  Drew  (Fla.)  34  So.  305.  Log- 
ging contract — Kerslake  v.  Mclnnis.  113  Wis. 
659.  Modification  due  to  failure  of  consider- 
ation of  original  contract — Jackson  v.  Hel- 
mer,  73  App.  Div.  (N.  Y.)  134.  An  agreement 
to  cancel  notes  without  consideration  is  un- 
enforceable— Templeton  v.  Butler  ("^^'■is.)  94 
N.  W.  306.  See,  also.  Accord  and  Satisfaction, 
ante,  p.  9. 

73.  Contract  for  carriage  of  express  limit- 
ing liability  of  company — Adams  Exp.  Co.  v. 
Carnahan,  29  Ind.  App.  606.  A  condition  in 
a  shipping  contract  limiting  the  carrier's 
liability,  in  certain  respects,  may  be  valid 
where  supported  by  reduced  freight  rate — 
Mears  v.  New  York,  N.  H.  &  H.  R.  Co.,  75 
Conn.  171.  A  surrender  by  a  widow  of  all 
claim  to  the  personal  effects  of  her  husband 
is  a  valid  consideration  for  a  release  of  her 
liability  for  claims  of  creditors — Gunther  v. 
Gunther,  181  Mass.  217. 

74.  In  re  Miller's  Estate,  77  App.  Div.  (N. 
Y.)    473. 

75.  Hubbard  v.  Frelburger  (Mich.)  94  N. 
W.    727. 

76.  Town  of  Kirkwood  v.  Meramec  High- 
lands Co.,  94  Mo.  App.  637. 

77.  Southern  Bell  Telephone  &  Telegraph 
Co.  v.  Harris  (Ga.)   44  S.  E.  885. 


§2 


SUFFICIENCY  OF  CONSIDERATION. 


631 


gence  of  the  railroad  company,  is  not  invalid  as  unreasonable.''''  Several  considera- 
tions may  exist  for  one  promise  and  several  promises  may  be  supported  by  one 
consideration.''®  Mere  motives  cannot,  of  themselves,  constitute  a  sufficient  con- 
sideration for  a  promise.^"  It  may  consist  in  the  relation  of  the  parties.^^  Pay- 
ment for  corporate  stock  is  a  consideration  for  a  promise  to  pay  a  certain  annual 
dividend,  if  the  corporation  failed  to  pay  it.^^  A  promise  to  pay  an  employer  a 
certain  amount  for  release  of  another  from  a  contract  of  service  is  foimded  on  a 
consideration.'^ 

Mutual  promises. — An  attempted  assignment  of  a  statutory  right  to  redeem 
from  a  foreclosure  sale  constitutes  no  consideration  for  the  contract,  the  right  be- 
ing personal  to  the  owner.'*  Mutual  and  concurrent  promises  constitute  a  valu- 
able consideration  for  each  other,'^  though  one  is  executory,'**  but  not  unless  there 
is  mutuality  of  engagement  or  obligation,  or  the  party  not  bound  has  fully  per- 
formed.''' 

Forbearance  or  compromise. — A  consideration  may  consist  in  a  forbearance  to 
enforce  rights  or  a  relinquishment  of  rights  or  advantages  gained  by  one  or  both 
of  the  parties,"  or  a  surrender  of  conditions  whereby  one  party  would  be  preju- 


78.  Usher  v.  New  York  Cent.  &  H.  R.  R. 
Co.,    76    App.    Div.    (N.    Y.)    422. 

79.  Hammon  on  Contracts,  p.  635. 

80.  Hammon  on  Contracts,  p.  635;  Philpot 
V.  Gruninger,   14  Wall.    (U.  S.)    570. 

81.  The  relation  of  husband  and  wife  is  a 
consideration  for  a  conveyance  of  land — La 
Pleure  v.  Seivert,  98  111.  App.  234;  Hammon 
on   Contracts,   §  329. 

82.  Crook  V.  Scott,  174  N.  Y.  520. 

83.  Person  wishing  to  marry  woman  em- 
ploye paj's  for  her  release — Holz  v.  Hanson, 
115  Wis.    236. 

84.  Terry  v.  Allen,  132  Ala.  657. 

85.  Steele  v.  Johnson,  96  Mo.  App.  147; 
Cold  Blast  Transp.  Co.  v.  Kansas  City  Bolt  & 
Nut  Co.  (C.  C.  A.)  114  Fed.  77.  A  mutual 
promise  between  co-sureties  on  a  note,  who 
have  contributed  equally  to  its  payment,  to 
divide  equally  amounts  collected  thereon 
from  the  maker  is  sufficient — Cramer  v.  Red- 
man (Wyo.)  68  Pac.  1003.  A  contract  where- 
by a  manufacturer  agreed  to  buy  all  his  raw 
material  of  a  certain  sort  for  a  certain  period 
from  another  at  a  certain  price  which  the 
other  agreed  to  furnish  as  ordered,  it  be- 
ing agreed  that  the  quantity  used  was  un- 
derstood to  be  about  a  certain  amount,  but 
that  the  buyer  should  have  the  right  to  de- 
mand twice  as  much  is  founded  upon  a  good 
consideration,  since  it  imposes  on  both  par- 
ties an  obligation  to  perform — Loudenback 
Fertilizer  Co.  v.  Tennessee  Phosphate  Co.  (C. 
C.  A.)   121  Fed.  298. 

86.  Chenoweth  v.  Pacific  Exp.  Co.,  93  Mo. 
App.   185. 

87.  A  promise  that  a  salesman  should 
have  the  exclusive  right  to  sell  goods  for  a 
certain  company  in  a  certain  territory  and 
that  the  company  would  fill  all  his  orders, 
is  without  consideration,  where  he  did  not 
agree  to  sell  their  goods  or  purchase  or  or- 
der any  of  the  goods  or  render  any  counter 
services — Hirschhorn  v.  Nelden-Judson  Drug 
Co.  (Utah)  72  Pac.  386.  A  contract  by  the 
county  commissioners  to  make  a  public  im- 
provement in  consideration  of  a  promise 
made  by  certain  persons  to  contribute  to  the 
cost,  cannot  be  enforced  against  the  prom- 
isors because  it  cannot  be  enforced  against 
th«  commissioners,  but  if  fully  performed  on 


the  part  of  the  latter,  it  is  binding  against 
the  promisors  and  may  be  so  enforced — 
Hassenzahl  v.  Bevins,  24  Ohio  Circ.  R.  173. 

88.  Forbearance  to  bring  or  continue  suit 
against  the  other  party — Pollak  v.  Billing, 
131  Ala.  519;  Weilage  v.  Abbott  (Neb.)  90  N. 
W.  1128;  Waters  v.  White,  75  Conn,  88;  Mc- 
Micken  v.  Safford,  197  111.  540.  Agreement 
to  pay  a  certain  sum  to  another  for  forbear- 
ance in  contesting  a  will — Clark  v.  Lyons,  38 
Misc.  (N,  Y.)  516.  A  forbearance  to  sue  on  a 
claim  constitutes  a  sufficient  consideration 
for  a  contract — Chenoweth  v.  Pacific  Exp.  Co., 
93  Mo.  App.  185.  Forbearance  on  an  over- 
due claim  for  a  reasonable  time,  is  a  suffi- 
cient consideration  for  a  promise  by  a  third 
person  to  pay  it — German  Sav.  Bank  v. 
Brodsky,  39,Misc,  (N.  Y.)  100.  An  agreement 
not  to  sue  on  a  debt  presently  is  sufficient 
consideration  for  waiver  of  limitations  by 
the  debtor — Pollak  v.  Billing,  131  Ala.  519. 
An  agreement  by  a  mortgagee  to  receive  less 
than  the  amount  due  in  full  payment,  if  the 
mortgagor  will  satisfy  the  mortgage  before 
maturity  is  based  on  sufficient  consideration 
— Thurber  v.  Smith,  25  R.  I.  60.  A  note  giv- 
en by  the  father  to  the  mother  of  a  bastard 
in  settlement  of  prosecution  is  sufficient  as 
to  consideration  both  legal  and  moral — 
Jones  V,  Peterson,  117  Ga.  58.  Release  of  a 
stock  certificate  already  cancelled  in  effect, 
for  a  credit  on  a  debt  already  paid — "Western 
Loan  &  Sav.  Co.  v.  Desky,  24  Utah,  347,  68 
Pac.  141.  If  notes  are  given  in  consideration 
of  the  cancellation  of  certain  other  notes  and 
the  discontinuance  of  actions  thereon,  the 
payment  of  such  notes  cannot  be  resisted  be- 
cause formal  discontinuance  of  the  actions 
is  not  entered  before  they  had  been  aban- 
doned— West  v.  Banigan,  172  N.  Y.  622.  An 
agreement  by  certain  defendants  to  assist 
plaintiff  in  securing  judgment  as  against  the 
remaining  defendants,  is  sufficient  consider- 
ation for  an  agreement  by  plaintiff  not  to 
levy  execution  against  their  property — Crook 
V.  Lipscomb  (Tex.  Civ.  App.)  70  S.  W.  99:^. 
An  agreement  to  forbear  from  enforcement 
of  a  claim  for  taxes  paid  in  consideration  of 
their  payment  by  another  cannot  be  con- 
strued to  be  indefinite  as  to  time  so  as  to 
;i  mount    to    insufficiency    of    consideration — 


632 


CONTRACIS. 


§   2 


diced  if  obligations  of  the  other  were  not  performed.*®  Eefraining  from  securing 
a  divorce,  and  resumption  of  relations  with  the  husband,  is  sufficient  consideration 
for  his  agreement  to  convey  property  to  the  cliildren.®"  The  settlement  or  com- 
promise of  a  dispute  or  controversy  is  sufficient  as  a  consideration.^^  A  mutual 
submission  to  arbitration  is  a  sufficient  consideration  for  a  note  for  the  award 
of  arbitrators.'^  The  right  of  other  creditors  to  an  equitable  enforcement  of  a 
scheme  to  compromise  the  entire  indebtedness  of  a  county  is  sufficient  to  make 
it  binding.*' 

Duty  already  imposed  hy  law  or  contract. — A  promise  to  do  that  which  the 
promisor  is  already  legally  bound  to  do  does  not  amount  to  legal  consideration 
for  promise  of  another.®*  An  agreement  wdth  a  servant  on  his  wrongful  discharge 
that  wages  due  will  be  accepted  as  satisfaction  of  all  damages  is  without  consid- 
eration.*^ 

Consideration  for  subscriptions. — A  note  payable  at  the  maker's  death  to  a 


Blumenthal  v.  Tlbblts  (Ind.)  66  N.  E.  159. 
The  relinquishment  of  advantages  and  tlie 
risks  of  future  costs  and  litigation  is  a  suffi- 
cient consideration  given  by  a  county  court 
in  condemnation  proceedings  to  open  a  high- 
way for  the  promise  of  the  landowner  to 
pay  the  costs  on  dismissal — County  Court  v. 
Hall,  51  W.  Va.  269.  A  surrender  of  claims 
under  a  contract  of  agency,  amounts  to  a 
sufficient  consideration  for  a  note  given  to  an 
agent  by  his  principal  in  settlement,  though 
the  agreement  under  which  it  was  given 
provided  that  the  agent  might  terminate  it 
after  a  certain  period — Barger  v.  Farnham 
(Mich.)  90  N.  W.  281.  Where  rights  of  a 
party  under  a  contract  for  the  sale  of  land 
had  expired,  but  he  still  held  certain  equities 
in  land,  a  later  agreement  between  the  par- 
ties that  his  rights  as  vendee  should  cease 
at  the  end  of  a  year,  unless  he  made  certain 
payment  and  a  promise  by  him  to  surrender 
all  right  to  damages  arising  from  the  orig- 
inal contracts  and  to  pay  the  expense  of  ap- 
praisal by  trustees,  constituted  a  sufficient 
consideration  for  the  new  agreement — Lam- 
prey V.  St.  Paul  &  C.  Ry.  Co.  (Minn.)  94  N. 
W.  555.  A  party  to  a  contract  may  be  held 
to  his  promise  not  only  because  of  a  con- 
sideration passing  to  him  therefor  but  by  the 
fact  that  the  other  party,  in  reliance  on  such 
promise,  has  so  done  or  omitted  to  do  things 
that  he  would  suffer  and  be  injured  if  the 
promise  was  withdrawn.  Agreement  for  set- 
tlement of  debt  by  delivery  of  deeds  and 
transfers  of  property  placed  in  escrow  of 
which  part  consideration  was  forbearance 
from  hostile  proceedings  to  enforce  collec- 
tion of  the  debt  thereby  losing  advantage 
to  the  creditors  and  resulting  in  expense  to 
them — Mechanics'  Nat.  Bank  v.  Jones,  76  App. 
Div.  (N.  y.)  534.  Refraining  from  securing 
a  divorce  by  a  wife  and  resumption  of  rela- 
tions with  her  husband  is  sufficient  consid- 
eration for  his  agreement  to  convey  property 
to  their  children — Moayon  v.  Moayon,  24  Ky. 
L.  R.  1641,  72  S.  "W.  33,  60  L.  R.  A.  415.  Con- 
Bult  the  title  Accord  and  Satisfaction,  ante, 
p.   9. 

89.  Where  by  a  verbal  promise  one  per- 
son induced  another  to  convey  land  to  a 
townsite  in  alternate  blocks  so  as  to  accom- 
modate his  interest,  thereby  placing  them- 
selves In  a  position  where  they  would  be 
greatly  prejudiced  if  the  contract  requiring 
him  to  convey  property  to  them  was  not  in 


force,  there  was  a  valid  and  sufficient  con- 
sideration for  his  promise — McCarty  v.  May 
(Tex.  Civ.  App.)  74  S.  W.  804.  Where  prior 
to  his  death  a  decedent  induced  parties  to 
part  with  their  title  to  land  on  a  promise 
to  become  liable  for  full  value  of  the  land, 
the  debt  became  a  valid  claim  against  hi.'; 
estate  and  constituted  sufficient  considera- 
tion for  an  agreement  with  the  administra- 
trix to  dismiss  a  suit  to  enforce  such  claim 
if  she  would  apply  for  an  order  of  sale  of 
the  property  and  pay  the  debt  from  the 
proceeds — McCarty  v.  May  (Tex.  Civ.  App.) 
74  S.  W.  804.  Abandonment  by  one  of  a 
valid  enforceable  lien  on  property,  and  of 
possession  of  the  property  under  such  lien, 
in  order  to  allow  another  to  attach  the 
property,  is  a  sufficient  consideration  to  sup- 
port the  bonds  executed  by  the  agent  of  the 
latter  as  surety,  binding  him  to  pay  the 
amount  of  the  lien — Davis.  Belau  &  Co.  v. 
National  Surety  Co.   fCal.)   72  Pac.  1001. 

90.  Moayon  v.  Moayon,  24  Ky.  L.  R,  1641. 
72  S.  W.   33,   60  L.   R.  A.   415. 

91.  Settlement  of  dispute  as  to  liability 
for  stolen  property  suffices  to  support  a 
promise  to  pay  for  work  done — Innes  v. 
Ryan,  37  Misc.  (N.  Y.)  806.  Of  a  dispute  con- 
cerning liability  for  support  of  a  pauper — 
Town  of  Brandon  v.  Jackson,  74  Vt.  78. 

93.  Downing  v.  Lee  (Mo.  App.)  73  S.  W. 
721. 

93.  Compromise  with  bond  holders — Dyer 
V.  Muhlenberg  Company  (C.  C.  A.)  117  Fed. 
586. 

94.  Reeves  Pulley  Co.  v.  Jewell  Belting 
Co.,  102  111.  App.  375;  Allen  v.  Plasmeyere 
(Neb.)  90  N.  W.  1125;  Wendling  v.  Snyder,  30 
Ind.  App.  330;  Sommers  v.  Myers  (N.  J.  Law) 
54  Atl.  812.  Agreement  to  pay  additional 
compensation  for  services  which  the  prom- 
isor was  already  legally  bound  to  give  under 
an  old  contract — Alaska  Packers'  Ass'n  V. 
Domenico  (C.  C.  A.)  117  Fed.  99.  An  agree- 
ment by  a  surety  to  substitute  his  individual 
note  for  one  on  which  he  was  surety,  is  in- 
sufficient as  consideration,  it  being  no  more 
than  his  legal  duty — Barringer  v.  Ryder 
(Iowa)  93  N.  W.  56.  A  promise  by  an  owner 
to  pay  a  contractor  for  work  as  extra 
which  was  already  Included  In  his  contract 
is  without  consideration — Wear  Bros.  v. 
Schmelzer,   92  Mo.  App.  314. 

95.  Walston  V.  F.  D.  Calking  Co.  (Iowa) 
93  N.  W.  49. 


§2 


FOR   MODIFIED    CONTRACT. 


633 


preacher  to  aid  the  spread  of  a  religious  doctrine  in  which  the  maker  believed  if^ 
founded  on  sufficient  consideration,  where  the  preacher  continues  the  work.®*  A 
subscription  in  writing  to  a  church,  made  by  deceased  person  in  her  lifetime,  is 
without  sufficient  consideration  to  be  made  enforceable,  though  it  appears  by  the 
oral  evidence  that  she  promised  to  pay  the  instalments,  where  no  otlier  subscrip- 
tions were  made  on  the  faith  of  it,  nor  was  the  construction  of  the  church  begun.®^ 
A  note  given  by  a  decedent  in  his  lifetime  to  an  incorporated  charitable  institu- 
tion payable  at  a  future  date  for  the  purpose  of  forming,  with  other  contributions, 
a  permanent  endowment  fund,  which  was  accepted  by  the  directors  of  the  insti- 
tution who  with  the  maker's  knowledge  began  work  in  reliance  on  the  subscrip- 
tions, is  founded  on  a  sufficient  consideration.®* 

Effect  of  change,  modification,  or  substitution  of  new  contract. — Surrender  of 
a  note  is  a  good  consideration  for  a  new  note,®®  and  will  bind  a  third  person  as 
surety  on  the  new  note.^  A  subsequent  oral  agreement  without  new  consideration 
can  have  no  effect  on  a  written  lease.^  ISTo  consideration  other  than  release  from 
their  respective  obligations  is  necessary  to  abrogation  of  a  mutually  executory  con- 
tract by  agreement  of  the  parties.^  A  mutual  release  from  an  old  contract  after 
partial  completion  owing  to  a  change  in  plans  is  sufficiently  supported  by  an  agree- 
ment by  one  party  to  work  without  delay  and  by  the  other  party  to  pay  for  the 
work  under  both  contracts.*  Where  one  party  to  a  contract  interfered  with  its 
performance  in  certain  particulars,  a  modification  to  obviate  difficulty  is  founded 
on  a  sufficient  consideration;^  and  likewise  modification  of  a  contract  made  neces- 
sary by  partial  failure  of  consideration.'  A  new  consideration  is  not  necessary  to 
a  change  in  the  terms  of  a  written  contract  by  parol  if  it  is  executory  and  there 
has  been  no  breach;  if  however  the  agreement  is  within  the  statute  of  frauds  the 
modification  must  be  executed  or  follow  on  a  new  consideration.''  The  want  of  a 
new  consideration  for  a  parol  modification  of  a  contract  is  obviated  by  perform- 
ance.* Where  extra  work  was  already  covered  by  his  contract,  a  contractor  cannot 
enforce  a  subsequent  promise  by  the  owner  for  additional  compensation  for  such 
work.®  Where  a  written  contract  failed  because  of  refusal  of  one  of  the  parties 
to  execute,  a  subsequent  parol  agreement  by  the  remainder  of  the  parties  that 
the  contract  should  stand  without  him  is  not  binding  unless  founded  upon  a  new 
and  independent  consideration.^"  A  second  contract,  identical  with  the  first  ex- 
cept that  it  provides  for  additional  compensation  for  the  same  services,  is  in  so 
far  without  consideration  and  void,  especially  where  the  employer  is  compelled 
by  stress  of  circumstances  to  jdeld  to  the  demand  for  its  execution,^^  A  subse- 
quent express  promise  by  a  debtor  to  reimburse  another  for  payment  of  his  debt 
owing  to  a  third  person  without  his  request  or  obligation  is  without  consideration  ;^^ 
likewise,  a  guaranty  by  a  vendor  of  land  after  the  contract  of  sale  was  completed, 
that  a  railroad  would  be  built  to  a  neighboring  town  in  two  years  or  he  would  re- 


9«.     Woodworth  v.  Veitch,  29  Ind.  App.  589. 

97.  Lippincott's  Estate,  21  Pa.  Super.  Ct. 
214. 

as.  Albert  Lea  College  v.  Brown's  Estate 
(Minn.)   93  N.  W.  672. 

99.  Siemans  &  H.  Elec.  Co.  v.  Ten  Broek, 
97  Mo.  App.  173. 

1.  Stroud  V.  Thomas  (Cal.)  72  Pac.  1008. 

2.  Spota  V.  Hayes,  36  Misc.    (N.  T.)   532. 

3.  Barrie  v.  King,   105  111.  App.  426. 

4.  Anderson  v.  McDonald  (Wash.)  71  Pac. 
1037. 

5.  Log^ging  contract — Kerslake  v.  Mclnnls, 
113  Wis.  659. 


6. 

134. 

7. 
580. 

S. 
134. 

9. 
314. 

10. 

11. 


Jackson  v.  Helmer,  73  App.  Div.  (N.  Y.) 
Bowman  v.  Wright  (Neb.)  91  N.  W. 
Jackson  v.  Helmer,  73  App.  Div.  (N.  T.) 
Wear  Bros.   v.  Schmelzer,   92  Mo.  App. 


Arnold  v.  Scharbauer,  118  Fed.  1008. 

Contract  for  navigation  of  vessel  de- 
manded by  seaman  in  the  midst  of  the  voy- 
age— Alaska  Packers'  Ass'n  v.  Domenico  (C 
C.  A.)   117  Fed.  99. 

12.     Thomson  v.  Thomson,  76  App.  Div.  (N. 
T.)    178. 


634 


CONTRACTS. 


§2 


pay  the  purchase  money  and  receive  a  reconveyance;*'  and  a  contract  made  subse- 
quent to  a  contract  of  sale  of  a  certain  business  for  execution  of  another  instru- 
ment embodying  a  promise  not  to  re-engage  in  the  same  business." 

Adeqxiacy    of   consideration}^ — There    must    be    a    sufficient   consideration.** 


13.  Pence  v.  Adams.  116  Iowa,  462. 

14.  Zanturjian  v.  Boornazian  (R.  I.)  65 
Atl.   199. 

15.  See.  also,  39  Am.  St.  Rep.  743;  81  Am. 
St.    Rep.    664. 

10.  Snfflcleucy  of  consideration  in  particu- 
lar contracts. — Contract  for  sale  of  barley — 
Hartwijj  v.  American  Malting  Co.,  74  App. 
Div.  (N.  Y.)  140.  Written  contract  for  as- 
sistance in  formation  of  corporation — Men- 
del V.  Plckrell,  37  Misc.  (N.  Y.)  813.  Agree- 
ment for  destruction  of  notes  as  between 
iiolder  and  lieirs  of  maker — Lodge  v.  Hul- 
ings,  63  N.  J.  Eq.  159.  For  agreement  of 
father  to  support  bastard — Beach  v.  Voegt- 
len,  68  N.  J.  Law,  472;  Sponable  v.  Owens,  92 
Mo.  App.  174.  Agreement  between  co-sure- 
ties for  collection  on  a  note  paid  by  them 
for  the  maker — Cramer  v.  Redman  (Wyo.)  68 
Pac.  1003.  Conveyance  of  lands — Perkins  v. 
Perkins.  181  Mass.  401.  Agreement  of  hus- 
band not  to  change  or  revoke  his  will  leav- 
ing his  property  to  his  wife — Kine  v.  Farrell, 
71  App.  Div.  (N.  Y.)  219.  A  written  contract 
to  convey  lands  is  invalid  where  it  contains 
no  terms  whereby  the  owners  could  enforce 
payment  for  their  lands — Arnold  v.  Schar- 
bauer,  116  Fed.  492.  Agreement  to  yield  claim 
to  lands — East  Omaha  Land  Co.  v.  Hanson, 
117  Iowa,  96.  A  promise  to  supply  materials  to 
n.  contractor  is  sufficiently  supported  by  the 
owner's  promise  to  withhold  payment  from 
contractor  to  cover  such  materials — Roussel 
V.  Mathews,  171  N.  Y.  634.  A  sale  of  an  in- 
terest in  an  estate  by  a  woman  of  full  age 
and  competency  for  less  than  half  its  value 
will  not  be  set  aside  at  suit  of  her  legatee 
for  inadequacy  of  consideration — Hagan  v. 
Ward,  38  Misc.  (N.  Y.)  367.  An  agreement 
by  commissioners  of  a  county  in  Ohio  with 
landowners  in  Michigan  regarding  a  sub- 
scription for  improvement  of  a  road  extend- 
ing into  both  states  where  the  land  is  con- 
tiguous and  specially  benefited,  is  founded 
on  a  valuable  consideration — Hassenzahl  v. 
Bevlns,  24  Ohio  Circ.  R.  173.  Contract  by  a 
builder  to  repair  a  heating  system  in  a  public 
building  because  of  Injuries  resulting  from 
his  use  of  the  system  in  doing  work  on  the 
building — McClure  v.  Lorain  County  Com'rs, 
24  Ohio  Circ.  R.  72.  A  promise  by  a  railroad 
company  to  provide  a  depot  within  a  mile 
and  a  half  of  plaintiff's  land,  was  sufficient 
consideration  for  his  donation  of  a  right  of 
way — Cadiz  R.  Co.  v.  Roach.  24  Ky.  L.  R. 
1761,  72  S.  W.  280.  Contract  by  members 
of  a  corporation  providing  for  payment  of 
profits  accruing  from  the  lease  of  a  building 
constructed  by  the  corporation  on  a  loan  to 
two  of  the  stockholders — Maginn  v.  Lan- 
caster (Mo.  App.)  73  S.  W.  368.  An  accepted 
offer  to  furnish  such  goods  as  another  may 
need  during  a  limited  time  In  an  established 
business  Is  mutual  and  sufficient  as  to  consid- 
eration— Cold  Blast  Transp.  Co.  v.  Kansas 
City  Bolt  &  Nut  Co.  (C.  C.  A.)  114  Fed.  77. 
A  contract  for  payment  of  a  certain  amount 
to  a  railroad  company  after  the  road  is  built 
to  a  certain  point  is  completed  as  to  consid- 
eration when  the  road  is  so  built — Los  An- 
geles Traction  Co.  v.   Wilshire.   135   Cal.    654, 


67  Pac.  1086.  Improvement  of  land  by  a 
daughter  in  reliance  on  a  promise  by  her 
father  to  convey  it  to  her  is  a  sufficient 
consideration  therefor — Horner  v.  McCon- 
nell,  158  Ind.  280.  Since  a  wife  is  presumed 
to  suffer  damages  by  a  recovery  against  her 
husband,  a  contract  with  her  for  convey- 
ance of  dower  right  in  order  to  prevent  a 
recovery  of  penalty  against  her  husband  for 
failure  to  convey  land  sold  because  of  wife's 
refusal  to  join  is  not  without  consideration 
— Goldstein  v.  Curtis,  63  N.  J.  Eq.  454. 
Where  one  party  conveyed  to  another  as  trus- 
tee certain  real  estate,  and  part  of  the  con- 
sideration was  to  be  paid  in  stock  of  a  cor- 
poration to  be  afterward  organized,  the  sec- 
ond party  agreeing  to  furnish  the  first  a 
purchaser  for  the  stock  at  par  within  a  cer- 
tain time  from  date  if  lie  desired  to  sell,  a 
subsequent  agreement  for  conveyance  of 
other  realty  alleged  to  have  been  purchased 
by  first  party  with  money  furnished  by  the 
second  in  consideration  of  certain  amount 
in  cash,  in  place  of  the  stock  included  in  the 
first  contract  and  of  an  exclusive  right  in 
the  land  conveyed,  is  based  on  suincient  con- 
sideration— Hazen  v.  Colossal  Cavern  Co. 
(Ky.)  76  S.  W.  116.  Where  stockholders  of 
two  corporations  agree  to  a  consolidation, 
one  to  receive  all  the  property  of  the  other, 
to  issue  stocks  and  bonds  for  its  payment, 
to  assume  all  debts  of  the  other,  and  to  issue 
and  set  aside  a  certain  amount  of  bonds  to 
retire  bonds  of  the  absorbed  corporation,  the 
surplus  of  such  issue  of  bonds  to  be  divided 
between  existing  stockholders  of  the  two 
corporations,  there  was  a  valuable  considera- 
tion for  the  disposition  of  the  surplus  in- 
corporated in  a  resolution  of  the  absorbing 
corporation  in  conformity  of  the  agreement — 
Read  v.  Citizens'  St.  R.  Co.  (Tenn.)  75  S. 
W.  1056.  A  recognition  of  the  right  of  the 
payee  of  a  note  to  certain  rents,  and  an 
agreement  to  pay  them  according  to  its 
terms,  amount  to  a  sufficient  consideration 
for  the  note — Smith  v.  McLennan,  101  111. 
App.  196.  A  change  in  his  plans  by  a  client 
as  to  litigation  to  be  carried  on  by  his  at- 
torney for  a  fee  contingent  on  success  is 
sufficient  consideration  to  support  a  contract 
with  the  attorney  for  reasonable  compensa- 
tion regardless  of  results — Jones  v.  Haines. 
117  Iowa.  80.  Aid  in  securing  a  contract  for 
work  to  a  firm  of  architects,  is  sufficient  con- 
sideration for  payment  by  the  firm  of  part  of 
their  commissions — Lord  v.  Hull,  80  App.  Div. 
(N.  Y.)  194.  A  provision  in  a  contract  for 
the  sale  of  lands  for  a  reconveyance  to  the 
vendor  for  a  certain  sum,  whenever  the  pur- 
chaser concludes  to  re-sell  is  sufficiently  sup- 
ported by  the  consideration  in  the  original 
conveyance — Peterson  v.  Chase,  115  Wis.  239. 
Where  a  note  is  given  by  a  trustee  to  a 
creditor  of  the  trust  in  settlement  of  a  judg- 
ment remaining  unsatisfied  of  record,  which 
did  not  exceed  the  amount  due  the  creditor 
for  the  purpose  of  preventing  further  pro- 
■eedings,  an  acceptance  is.  founded  on  a 
sufficient  consideration — Stitzer  v.  Whittaker 
(Xeb.)  91  N.  W.  713.  Accepted  orders  for 
goods    under    contracts    void    for    failure    of 


§  2 


PARTICULAR  CONTRACTS  CONTINUED. 


635 


Where  children  take  property  of  their  parents  subject  to  tlie  debts  of  the  father 
and  give  orders  to  the  executors  to  pay  claims  of  their  father's  creditors,  such  or- 
ders were  not  without  consideration.^'^  An  insolvent's  agreement  with  one  of  his 
creditors,  consenting  to  the  appointment  of  a  receiver  in  consideration  of  the  cred- 
itor's agreement,  if  appointed,  to  perform  his  duties  without  compensation  is 
founded  upon  a  sufficient  consideration.^^  Permission  by  a  city  to  a  company  to 
use  land  for  a  cemetery  under  the  supervision  of  the  city  sexton  in  the  presence 
of  reasonable  and  valid  ordinances  prohibiting  interment  within  certain  limits  of 
the  city  is  sufficient  consideration  for  an  agreement  of  the  company  to  limit  the 
prices  of  burial  lots.^*  An  assumption  of  payment  of  a  debt  of  a  life  tenant  by 
a  remainderman  on  condition  that  the  life  tenant  pay  interest  as  long  as  the  re- 
mainderman lives  is  supported  by  a  sufficient  consideration.-"  A  change  in  his 
plans  by  a  client  as  to  litigation  to  be  carried  on  by  his  attorney  for  a  fee  con- 
tingent on  success  is  sufficient  consideration  to  support  a  contract  with  the  attor- 
ney for  reasonable  compensation  regardless  of  results.-^  The  payment  to  an  em- 
ploye leaving  service  to  engage  in  a  competing  business  of  a  sum  in  excess  of  that 
to  which  he  would  have  been  entitled  is  sufficient  consideration  for  an  agreement 
by  him  not  to  enter  into  a  competing  business  or  disclose  the  secret  processes  of 
his  employer.^^  The  agreement  of  a  third  person  to  pay  a  judgment  creditor  a 
certain  amount  is  sufficient  consideration  for  his  agreement  to  satisfy  the  judg- 
ment and  convey  lands  purchased  by  him  at  execution  thereunder  for  more  thau 
sufficient  to  satisfy  it.^^  Wliere  a  husband  and  wife  sold  certain  property  in  a 
mercantile  corporation  owned  by  the  wife  and  certain  realty  o-WTicd  by  both  under 
a  contract  providing  that  neither  would  engage  in  that  business  in  the  same  village 
while  the  corporation  continued  in  business  is  sufficient  as  to  consideration  with  re- 
gard to  the  husband,  since  it  included  land  in  which  he  was  interested.-*  Wliere 
nothing  appears  to  be  due  the  state  from  the  surety  on  a  bond  of  a  deputy  officer 


consideration,  amount  to  sales  of  the  goods 
on  the  terms  of  the  contracts;  but  they  do 
not  validate  the  agreement  as  to  articles 
•which  the  one  refuses  to  purchase  or  the 
other  refuses  to  sell  or  deliver  under  the 
contract  since  neither  party  is  bound  to  take 
or  deliver  any  amount  or  quantity  of  these 
articles  thereunder — Cold  Blast  Transp.  Co. 
V.  Kansas  City  Bolt  &  Nut  Co.  (C.  C.  A.)  114 
Fed.   77. 

Con.sideration  for  promissory  note. — Ne- 
gotiable instruments  are  presumed  to  be 
based  on  a  consideration  and  the  holder  need 
not  prove  that  one  exists — Hammon  on  Con- 
tracts, p.  631.  Surrender  of  a  note  is  a  g-ood 
consideration  for  making  another — Siemans 
&  H.  Elec.  Co.  V.  Ten  Broek,  97  Mo.  App. 
173.  Note  for  assignment  of  interest  in 
mining  lease — C.  H.  Brown  Banking  Co.  v. 
Fink,  95  Mo.  App.  257.  A  note  given  to  an 
owner  of  standing  trees  by  a  trespasser  who 
had  removed  them  is  supported  by  a  suffi- 
cient consideration — Northern  Pac.  Ry.  Co. 
V.  Holmes  (Minn.)  93  N.  W.  606.  The  signa- 
ture of  a  surety  on  a  note  after  signature 
by  the  principal  debtors  which  was  pro- 
cured under  an  agreement  by  the  latter  with 
the  payee  to  obtain  the  surety's  signature 
If  the  note  would  be  accepted  in  satisfaction 
of  a  pre-existing  debt  did  not  require  any 
additional  consideration,  since  his  execution 
took  effect  as  if  coincident  with  the  execu- 
tion by  the  makers — Stroud  v.  Thomas  (Cal.) 
72  Pac.  1008.  Cancellation  of  an  old  note  on 
delivery  of  a  new  one  for  the  same  debt  Is 


sufficient  consideration  to  bind  a  third  person 
as  surety  on  the  latter  note — Stroud  v. 
Thomas  (Cal.)  72  Pac.  1008.  A  note  executed 
by  two  persons  jointly  in  renewal  of  a  for- 
mer note  made  by  both,  but  as  to  which,  one 
of  them  had  been  released,  is  without  con- 
sideration as  to  him — Farmers'  &  M.  Bank  v. 
Hawn,  79  App.  Div.  (N.  Y.)  640.  Payment  of 
overdue  interest  on  a  note  past  due  is  not  a 
sufScient  consideration  for  an  agreement  to 
extend  time  of  payment  on  tlie  note — Stroud 
V.  Thomas  (Cal.)  72  Pac.  1008.  A  note  exe- 
cuted by  two  persons  jointly  in  renewal  of  a 
former  note  is  without  consideration  as  to 
one  who  had  been  released  from  the  former 
note — Farmers'  &  M.  Bank  v.  Hawn,  79  App. 
Div.    (N.   T.)    640. 

Sufficiency  of  con.sideration  to  enable  spe- 
cific performance.— $32  per  acre  for  land 
^vorth  $35  is  not  such  inadequate  considera- 
tion as  will  prevent  specific  performance — 
To"wnsend  v.  Blanchard.   117  Iowa,   36. 

17.  Drye  v.  Cunningham,  Medley  &  Co.. 
24  Ky.  L.  R.  2500,  74  S.  W.  272. 

18.  Polk  V.  Johnson   (Ind.)    66  N.  B.  752. 

19.  City  of  Austin  v.  Austin  City  Ceme- 
tery Ass'n  (Tex.)   73  S.  W.  525. 

20.  Roberts  v.  Lamberton  (Wis.)  94  N.  W. 
650. 

21.  Jones  v.  Haines.  117  Iowa,  80. 

23.  S.  Jarvis  Adams  Co.  v.  Knapp  (C.  C. 
A.)    121   Fed.   34. 

33.     Farmer  v.   Sellers    (Ala.)    33   So.    8.?9. 

24.  Kronschnabel-Smith  Co.  v.  KroE-s«hna- 
bel,   87  Minn.  230. 


636 


CONTRACTS. 


except  from  representations  of  his  superior  officer,  a  contract  by  the  latter  for  re- 
lease of  the  surety  in  consideration  of  a  note  is  nevertheless  not  without  consid- 
eration." An  agreement  entered  into  at  the  time  of  a  sale  of  goods  between  the 
purchaser,  the  seller  and  the  agent  making  the  sale  for  the  seller,  that  the  pur- 
chaser and  the  seller  would  pay  commission  to  him,  is  not  supported  by  a  consid- 
eration binding  on  the  purchaser,  though  the  services  be  regarded  as  rendered  to 
the  parties  jointly.^'  Wliere  there  was  a  novation  by  giving  of  a  note  from  one 
party  to  another  as  substitution  for  a  debt  due  from  a  third  person,  an  executory 
agreement  by  the  party  receiving  the  note  to  take  another  from  the  party  giving 
it  for  the  correct  amount  under  a  provision  that  it  was  never  to  become  due  un- 
less the  original  debtor  completed  a  contract  with  the  maker  was  unenforceable  as 
being  without  consideration  to  the  holder  of  the  note."  A  contract  by  a  woman 
of  full  years  and  mentally  competent  to  procure  money  to  support  an  extravagant 
life,  whereby  she  transferred  her  interest  in  the  estate  wliich  was  in  dispute  for 
less  than  half  of  what  the  purchaser  realized  under  the  contract,  will  not  be  set 
aside  for  inadequacy  of  consideration  at  the  suit  of  the  legatee  in  a  small  amount 
under  her  will.'^*  An  agreement  to  convey  land  to  a  child,  in  consideration  of 
being  allowed  to  name  it,  cannot  be  held  without  consideration  because  the  promisor 
owned  no  land  at  the  time,  where  after  the  child  was  named  he  bought  a  particular 
tract  of  land,  and,  by  his  declarations  and  actions,  showed  that  he  intended  to  applv 
it  to  fulfillment  of  his  contract.^^ 

Past  consideration. — A  contract  cannot  depend  upon  a  past  consideration,^" 
though  a  promise  for  future  payment  is  not  without  consideration  because  for  past 
services.'^  Acts  voluntarily  done  cannot  operate  as  consideration  in  a  subsequently 
executed  contract,^^  nor  obligations  already  owing  under  a  previous  contract  f^  how- 
ever, voluntary  payment  of  a  judgment  recovered  against  another  by  a  third  person 
is  sufficient  consideration  for  a  subsequent  promise  of  the  judgment  debtor  for  re- 
payment.^* The  consideration  of  a  former  contract  which  has  been  discharged  is 
insufficient.^*     The  consideration  may  consist  in  a  pre-existing  debt,^*  but  pay- 


25. 
Z6. 
27. 

28. 

1128. 

29. 

30. 


Culver  V.  Caldwell  (Ala.)  34  So.  13. 
Wulff  V.  Lindsay  (Ariz.)  71  Pac.  963. 
Dillard  v.  Dillard  (Ga.)   44  S.  E.  885. 
Hagan    v.    Ward.    115    N.    Y.    St.    Rep. 


Dally  V.  Minnick.  117  Iowa,  563. 
Promise  of  landlord  during  lease  to 
make  repairs — Roehrs  v.  Timmons,  28  Ind. 
App.  578.  A  subsequent  oral  agreement 
without  new  consideration  can  have  no  ef- 
fect on  a  written  lease — Spota  v.  Hayes,  36 
Misc.  (N.  Y.)  532.  A  second  contract  for 
navigation  of  a  vessel  demanded  in  the  midst 
of  the  voyage,  identical  with  the  first  ex- 
cept that  it  provides  for  additional  compen- 
sation, is  in  so  far  without  consideration  and 
void  especially  where  the  party  is  compelled 
by  stress  of  circumstances  to  execute  it — 
.\laska  Packers'  Ass'n  v.  Domenico  (C.  C.  A.) 
117  Fed.  99.  Where  a  contract  failed  because 
of  refusal  of  one  party  to  execute,  a  subse- 
quent parol  agreement  by  the  remainder  of 
the  parties  that  the  contract  should  stand 
without  him  is  not  binding  unless  founded 
on  a  new  and  Independent  consideration — 
Arnold  v.    Scharbauer,    118    Fed.    1008. 

31.  Dupignac  v.  Bernstrom,  37  Misc.  (N. 
Y.)   677. 

82.  Nesblt  V.  Jencks,  81  App.  Div.  (N.  Y.) 
140.  Sufficiency  of  consideration  for  contract 
by  broker  to  sell  lands  for  commissions  made 
after  transaction  had  been   completed — Per- 


kins v.  Smith,  83  App.  Div.  (N.  Y.)  630.  A 
promise  by  contractors  after  a  sub-con- 
tractor had  performed  extra  work  -without 
his  contract,  to  pay  him  for  such  worlt.  is 
without  consideration — Majory  v.  Schubert 
82  App.   Div.    (N.   Y.)    633. 

33.  Wendling  v.  Snyder.  30  Ind.  App.  330; 
Sommers  v.  Myers  (N.  J.  Law)  54  Atl.  812. 
Where  work  for  whicli  a  contractor  claimed 
extra  pay.  was  clearly  provided  for  in  the 
contract  between  the  parties,  tlie .  owner's 
promise  for  such  pay  was  witliout  considera- 
tion and  contractor  could  not  recover — Wear 
Bros.  V.   Schmelzer,  92  Mo.  App.   314. 

34.  Wright  v.  Farmers'  Nat.  Bank  (Tex 
Civ.   App.)    72  S.  W.   103. 

3.1.  New  contract  for  navigation  of  vessel 
demanded  by  seamen  in  midst  of  voyage — 
Alaska  Packers'  Ass'n  v.  Domenico  (C.  C.  A.) 

117  Fed.  99.  Consideration  of  former  con- 
tract after  failure  in  execution  as  considera- 
tion for  new  contract — Arnold  v.  Scharbauer, 

118  Fed.  1008.  Additional  guaranty  after 
completion  of  contract  for  sale  of  land — 
Pence  v.  Adams.  116  Iowa,  462.  Contract  in 
restraint  of  trade  subsequent  to  contract  for 
sale  of  business — Zanturjian  v.  Boornazian 
(R.  I.)  55  Atl.  199.  A  note  executed  by  two 
persons  jointly  in  renewal  of  a  former  note 
made  by  both,  but  as  to  ivhich,  one  of  them 
had   been   released,    is   without   consideration 


§  2 


FAILURE  OF  CONSIDERATION. 


637 


inent  of  overdue  interest  on  a  note  past  due  will  not  suffice  for  an  agreement  to  ex- 
tend the  time  of  payment.^^  If  the  exact  amount  due  between  parties  was  not  de- 
termined, a  subsequent  agreement  for  full  satisfaction  is  founded  upon  a  sufficient 
consideration.**  A  new  consideration  is  not  necessary  to  a  change  in  the  terms  of  a 
written  contract  b}'^  parol  if  it  is  executory  and  there  has  been  no  breach ;  if  however 
the  agreement  is  within  the  statute  of  frauds  the  modification  must  be  executed  or 
follow  on  a  new  consideration.^" 

Sufficiency  of  expression  of  consideration ;  terms  as  to  consideration  construed. — 
The  value  of  consideration  must  not  be  left  wholly  in  the  will  of  the  party  from 
whom  it  comes.*"  A  contract  reciting  that  it  was  made  for  value  received  will  be 
held  to  be  founded  on  a  good  consideration  unless  the  contrary  is  proven.*^  Where 
a  mercantile  company  agreed  to  use  electric  service  in  its  store  for  a  year  "in  con- 
sideration of  which,  and  of  payment  by  the  10th  of  the  month,"  a  certain  discount 
was  to  be  allowed,  the  consideration  for  the  discount  was  the  agreement  to  use  the 
service  for  a  year.*^  A  written  agreement  to  convey  certain  realty  at  the  option 
of  the  other  party  failing  to  show  that  he  gives  anj^hing  in  return  for  the  option  is 
without  consideration  and  is  a  mere  offer  which  may  be  withdrawn  at  choice  of  the 
maker.*' 

Want  or  failure  of  consideration.** — Conditions  existing  when  a  contract  is  made 
must  determine  whether  or  not  it  rests  upon  a  valuable  consideration  and  it  cannot 
be  avoided  because  it  subsequently  transpires  that  the  thing  sought  to  be  obtained 
is  of  no  value,  unless  fraud  or  imposition  appears.*'  Where  the  consideration  for  a 
contract  was  dependent  upon  the  re-organization  of  a  corporation  and  existence  of  a 
surplus  thereafter,  the  contract  was  nudum  pactum  and  unenforceable.*^  A  mortgage 
given  between  husband  and  wife  after  marriage  to  secure  a  loan  made  before  marriage 
is  void  as  for  want  of  consideration,  the  debt  being  extinguished  by  marriage.*^  The 
sale  of  a  future  crop  is  void  for  want  of  consideration  if  the  crop  fails,  though  if  only 
the  hope  of  the  crop  is  sold  it  is  otherwise.**  If  the  maker  of  a  note  is  misled  as  to 
the  identity  of  a  bond  to  which  his  name  is  attached  and  in  liquidation  of  his  liability 
upon  which  the  note  was  given,  it  is  without  consideration.*®  A  note  given  on  convey- 
ance of  land  under  an  agreement  that  the  maker  should  sell  the  land  for  the  payee, 
failing  in  which,  the  land  was  to  be  reconveyed,  was  invalid  for  want  of  consideration 
on  a  failure  to  sell  the  land.''"  Where  the  consideration  for  a  discount  to  be  allowed 
on  a  contract  was  the  promise  of  the  other  party  to  continue  the  contract  for  a  year, 
a  failure  in  such  regard  will  warrant  a  recovery  of  all  discounts  allowed  though  pay- 
ments have  been  promptly  rnade."^    Under  a  law  making  it  a  misdemeanor  for  an 


as  to  him — Farmers'  &  M.  Bank  v.  Hawn,  79 
App.  Div.    (N.  Y.)    640. 

38.  Hibernla  Nat.  Bank  v.  Sarah  Planting 
&  Refining  Co.,  107  La.  650. 

37.  Stroud  v.  Thomas   (Cal.)   72  Pac.  1008. 

38.  Spier  v.  Hyde,  78  App.  Div.  (N.  Y.)  151. 

39.  Bowman  v.  Wright  (Neb.)  91  N.  W. 
680. 

40.  Contract  for  future  delivery  of  per- 
sonalty leaving  quantity  entirely  in  choice  of 
seller — Cold  Blast  Transp.  Co.  v,  Kansas  City 
Bolt  &  Nut  Co.  (C.  C.  A.)  114  Fed.  77.  Con- 
tract for  sale  of  goods  leaving  quantity  de- 
pendent on  want  or  will  of  one  party — City 
of  Ft.  Scott  V.  W.  G.  Eads  Brokerage  Co.  (C. 
C.  A.)    117   Fed.  51. 

41.  McDonough  v.  Aetna  Life  Ins.  Co.,  38 
Misc.    (N.    Y.)     625. 

42.  Missouri  Edison  Elec.  Co.  v.  M.  J. 
Steinberg  Hat  &  Fur  Co.,  94  Mo.  App.  543. 

43.  Tidball  v.  Challburg  (Neb.)  93  N.  W. 
679. 


44.  Zanturgian  v.  Boornazian  (R.  L)  55 
Atl.  199;  Thomson  v.  Thomson,  76  App.  Div. 
(N.  Y.)  178;  Pence  v.  Adams,  116  Iowa,  462. 
Failure  of  consideration  for  bond  to  perform 
a  contract  under  an  ordinance  because  of  in- 
validity of  the  ordinance  as  granting  an  ex- 
clusive franchise — Tow^n  of  Kirkwood  v.  Mer- 
amec  Highlands  Co.,   94  Mo.  App.   637. 

45.  Casserleigh  v.  Wood  (C.  C.  A.)  119 
FoJ.  308. 

46.  Patton  V.  Wells  (C.  C.  A.)  121  Fed. 
337. 

47. 

S.  W 

48. 


Dillon,   24   Ky.   L.   R.   781,   6'J 


Dillon 
1099. 

The  price  must  be  restored  under  the 
first  conditions — Losecco  v.  Gregory,  lUS  La. 
648. 

40.     Terrlll  v.   Tillison    (Vt.)    54   Atl.    187. 
.•JO.     Holmes  v.   Farris,    97  Mo.  App.   305. 
51.     Missouri    Edison    Elec.    Co.    v.    M.    J. 
Steinberg  Hat  &  Fur  Co.,  94  Mo.  App.  543. 


638 


CONTRACTS. 


g  3A 


insurance  agent  to  offer  a  rebate  of  premium  for  special  favor  to  secure  an  insurance, 
it  is  a  defense  of  want  of  consideration  to  an  action  by  such  an  agent  on  a  premium 
note  which  he  had  paid  to  the  company  that  he  had  induced  the  insured  to  take  the 
insurance  by  giving  him  the  benefit  of  the  commission  of  one-half  of  the  premium 
belonging  to  the  agent  and  taking  his  note  for  the  remainder."  Lesion  is  the  injury 
resulting  to  one  who  has  not  received  a  full  equivalent  for  what  he  has  given  in  a 
commutative  contract."  Irresponsibility  of  the  maker  of  a  note  will  not  cause  failure 
of  consideration  as  to  a  bona  fide  purchaser  thereof.^*  Where  land  is  sold  for  cash 
on  condition  that  a  draft  for  the  price  is  paid,  failure  to  meet  the  draft  is  a  failure 
of  consideration."'*  A  failure  of  consideration  through  neglect  or  refusal  of  plaintiff 
to  deliver  goods  defeats  liability  to  the  payee  on  notes  given  for  the  goods.^^  Where 
a  contract  is  one  of  bargain  and  sale  of  property  and  securities,  binding  the  seller  to 
convey  as  good  a  title  as  he  then  had,  and  he  loses  title  to  the  property  and  part  of  the 
securities,  such  loss  constitutes  a  partial  failure  of  consideration.^^  "iAliere  a  petition 
to  set  aside  an  instrument  as  without  consideration  shows  that  plaintiff  received  stock 
in  a  corporation  organized  under  the  conditions  of  the  contract  and  was  employed  as 
superintendent  of  the  business  at  a  salary,  no  failure  of  consideration  is  shown.*** 
One  who  was  drilling  a  well  under  a  contract  for  a  certain  price  is  not  bound  by  con- 
sent to  perform  part  of  the  work  at  his  own  risk  or  to  take  a  less  amoimt  without  a 
consideration  for  the  promise.^  Where  a  contract  was  made  to  pay  a  royalty  for 
the  exclusive  privilege  of  running  an  observation  wheel  at  a  pleasure  resort,  a  subse- 
quent agreement  that  further  royalties  should  be  paid  unless  the  persons  running  the 
wheel  were  able  to  stop  the  operation  of  other  wheels  which  interfered  with  their 
business  was  without  consideration  and  constituted  no  defense  to  an  action  for  royal- 
ties accrued.'^** 

Right  to  urge  want  or  failure  of  consideration. — One  who  has  repudiated  his 
contract  after  partial  performance  by  the  other  is  estopped  from  denying  his  obliga- 
tion for  want  of  consideration.®^  Giving  a  note  for  building  materials  will  not  estop 
the  owner  from  pleading  failure  of  consideration  in  that  materials  were  defective, 
unless  he  had  full  knowledge  of  the  defects  which  were  patent.®^ 

§  3.  Validity  of  contract. ^^  A.  General  principles  determining  validity.'^* — 
A  contract  is  to  be  held  invalid  only  when  it  will  admit  of  no  other  construction.®" 
If  a  clause  is  rendered  ambiguous  by  an  invalid  proviso,  such  a  construction  will  be 
given  the  whole  contract  as  will  render  it  legal  and  operative.®®  The  existence  of 
fiduciary  relations  will  render  the  contract  subject  to  closer  scrutiny.®^    It  is  not  ipso 


53.  Comp.  Laws,  §  7219 — Heffron  v.  Daly 
(Mich.)    95   N.   W.   714. 

53.  Smart  v.  Bibbins,  109  La.  986. 

54.  Crampton  v.  Newton's  Estate  (Mich.) 
93   N.   W.   250. 

5.'.  Time  is  of  the  essence  of  the  contract 
— Coppage  V.  Murphy,  24  Ky.  L.  R.  257,  68 
S.  W.  416. 

56.  Block  V.  Stevens,  72  App.  Dlv.  (N.  Y.) 
246. 

57.  American  Nat.  Bank  v.  Watkins  (C.  C. 
A.)    119  Fed.   545. 

58.  Parker  v.  Allen  (Tex.  Civ.  App.)  76  S. 
W.  74. 

59.  Wendling  v.  Snyder,  30  Ind.  App.  330. 

60.  Sommers  v.  Myers  (N.  J.  Law)  54  Atl. 
812. 

61. 

1761, 

62. 

63. 


U    R. 


Cadiz   R.    Co.   v.    Roach,    24    Ky, 
72  S.  W.   280. 

Means  v.  Subers,  115  Ga.  371. 

Gambling  contracts.  A  forthcoming 
article  will  treat  specifically  of  champertous 
contracts,  see  Champerty  and  Maintenance. 


64.  Validity  of  contract  respecting  cor- 
porate stock — Stokes  v.  Foote,  172  N.  Y.  327. 
Validity  of  contract  by  city  to  levy  tax  to 
pay  rentals  for  water  hydrants  to  trustee 
named  in  mortgage  given  by  water  company 
to  secure  an  issue  of  bonds — City  of  Center- 
ville  V.  Fidelity  Trust  &  Guaranty  Co.  (C.  C. 
A.)   118  Fed.  332. 

6.5.  Equitable  Loan  &  Security  Co.  v.  War- 
ing  (Ga.)    44  S.  E.   320. 

66.  An  assignment  is  not  Invalid  because 
of  a  provision  calling  for  illegal  action  by 
the  assignee  where  such  provision  is  follow- 
ed by  another  which  enables  him  to  follow 
the  provisions  of  the  statute — Validity  under 
Mansfield  Dig.  Ark.  c.  8,  §  307 — Rainwater- 
Bradford  Hat  Co.  v.  McBride  (C.  C.  A.)  117 
Fed.   597. 

67.  The  purchase  of  a  judgment  from  a 
client  by  her  attorney  while  in  his  hands  for 
collection  is  presumed  Invalid  and  the  burden 
is  on  him  to  show  otherwise — Stubinger  v. 
Frey,  116  Ga.  396. 


§  3B 


SUBJECT-MATTER  OR  CONSIDERATION. 


639 


facto  void  because  it  is  not  enforceable  in  the  courts  of  a  state  and  contravenes  its 
statutes.®^  The  illegal  intent  of  one  party  will  not  avoid  a  contract  unless  the  other 
knew  or  should  have  known  of  it.®®  If  it  is  not  illegal  in  its  provisions  or  object,  it 
cannot  be  declared  illegal  because  performance  may  enable  a  party  to  assist  third 
persons  in  the  violation  of  law.^°  A  contract  which  does  not  provide  for  labor  on 
Sunday,  nor  tend  to  disturb  peace  and  good  order,  nor  constitute  a  violation  of  the 
criminal  laws,  is  valid  and  enforceable.'^^  A  contract  is  not  void  because  of  failure  to 
affix  internal  revenue  stamps,  unless  it  is  shown  that  failure  resulted  from  intent 
to  defraud  the  government. '^^  The  name  or  character  given  to  a  contract  by  the 
parties  has  no  weight  in  determining  whether  it  is  void  as  a  gaming  contract.'^^ 

(§3)  B.  Validity  as  to  subject-matter  or  consideration.  Character  of  sub- 
ject-matter or  object?* — Contracts  for  a  fraudulent  or  unlawful  purpose  will  not  be 
enforced  nor  will  damages  be  awarded  for  their  breach,'^^  nor  can  the  contract  be  spe- 
cifically enforced;'^*  but  transactions  in  the  ordinary  course  of  business  will  not  be 
disturbed  because  of  a  secret  intention  of  the  purchaser  to  apply  the  subject-matter 
to  an  illegal  purpose.'''^  One  who  makes  and  sells  an  article  which  he  knows  to  be  de- 
signed exclusively  for  gambling  purposes  cannot  recover  for  the  price.''*  A  loan  to 
pay  gambling  losses  may  be  recovered  though  the  sender  knew  the  character  of  the 
transaction.'^®  A  judgment  on  a  note  in  settlement  of  a  gambling  transaction  is 
sometimes  made  unenforceable.*"     A  contract  for  services  as  housekeeper  on  a  money 


68. 


68.  AUeghany  Co.  v.  AHen,   68  N.  J.  Law, 

69.  Gambling'  contracts — McCarthy  v. 
Weare  Commission  Co.,  87  Minn.  11.  Tiiis 
was  true  at  the  common  law — Gaylord  v. 
Duryea,   95  Mo.   App.   574. 

70.  Damages  for  breach  of  a  contract  to 
deliver  ice  cannot  be  lessened  by  a  claim  that 
part  of  the  damages  claimed  were  profits  to 
be  derived  from  a  sale  of  ice  to  persons  vio- 
lating the  laws  regulating  the  sale  of  liquors 
— Crystal  Ice  Co.  v.  Wylie,  65  Kan.  104,  68 
Pac.   1086. 

71.  McCurdy  v.  Alaska  &  C.  Commercial 
Co.,   102  111.  App.  120. 

72.  First  Nat.  Bank  v.  Stone  (Iowa)  91 
N.  W.  1076. 

73.  Sharp  V.  Stalker,  63  N.  J.  Eq.  596. 

74.  Where  a  life  policy  was  assigned  un- 
der agreement  with  beneficiaries  that  the  as- 
signee should  receive  certain  amount  of  the 
insurance  in  consideration  of  his  paying  the 
premiums,  the  contract  was  invalid  and  the 
insurer  refusing  to  recognize  the  validity  of 
the  assignment,  in  a  suit  by  the  assignee  to 
recover  premiums  paid  by  him,  his  right  was 
founded  necessarily  on  the  illegal  contract 
with  the  insured  and  not  on  the  contract  of 
Insurance,  and  he  could  not  recover  on  the 
ground  that  the  latter  was  executory  and  that 
he  could  retire  from  such  contract  at  any 
time — Bruer  v.  Kansas  Mut.  Life  Ins.  Co. 
(Mo.  App.)    75  S.  W.   380. 

75.  A  nonsuit  will  be  directed — Wyckoff 
v.  Weaver,  66  N.  J.  Law,  648.  Sale  of  liquor 
-Ip.  Schoenhofen  Brew.  Co.  v.  Whipple 
(Neb.)  89  N.  W.  751.  Where  the  liquor  is 
bought  with  intent  to  violate  the  law  in  sell- 
in.-^  whether  the  seller  knew  of  such  intent 
is  Immaterial  (Rev.  St.  c.  27,  §  56)— Pollard 
v.  Allen,  96  Me.  455.  A  contract  whereby 
an  individual  was  to  carry  on  the  sale  of 
liquors  in  his  own  name  for  the  benefit  of 
a  brewing  company  which  was  to  lease  a 
building  to  him  for  such  purpose,  provide 
the    money    for    the   bond    and    secure    a    li- 


cense in  its  ow^n  name,  is  void  as  against 
public  policy,  since  such  person  has  no  right 
to  carry  on  business  under  a  license  issued 
to  the  company — Koppitz-Melchers  Brew^.  Co. 
V.  Behm  (Mich.)  90  N.  W.  676.  Judgment 
on  a  note  given  in  settlement  of  a  gambling 
transaction  is  unenforceable  (Kurd's  Rev.  St. 
1899,  p.  590) — Butler  v.  Nohe,  98  111.  App. 
624.  A  contract  for  greater  fees  to  the 
sheriff  for  service  of  writs  and  process  than 
the  law  allows  cannot  be  enforced,  though  a 
custom  allowing  such  increase  existed  among 
officers  and  attorneys — Edgerly  v.  Hale,  71 
N.  H.  138.  An  agreement  by  a  prospective 
dealer  in  stocks  with  brokers,  to  indemnify 
them  for  any  loss  resulting  from  the  illegali- 
ty of  his  dealings  is  void  as  an  attempt  to 
nullify  the  statute  against  dealings  on  mar- 
gins with  no  intent  to  receive  or  deliver. 
The  agreement  will  furnish  no  ground  for 
enjoining  an  action  under  the  statute — Corey 
V.  Griffin,  181  Mass.  229. 

76.  Buettgenbach  v.  Gerbig  (Neb.)  90  N. 
W.  654.  Contract  for  division  of  property  in 
violation  of  testamentary  trust — Rochevot  v. 
Rochevot,  74  App.  Div.  (N.  Y.)  585.  Excess- 
ive use  of  right  of  eminent  domain  con- 
templated by  contract — Driscoll  v.  New 
Haven,   75   Conn.   92. 

77.  A  verdict  cannot  be  directed  for  de- 
fendant in  an  action  to  recover  for  liquor 
sold  because  defendant  claims  that  plaintiff 
knew  that  the  liquor  was  bought  for  aiv 
illegal  purpose  where  it  appeared  from  the 
evidence  that  plaintiff  sold  in  the  ordinary 
course  of  business,  was  altogether  indifferent 
as  to  their  sale  by  defendant  and  did  not 
co-operate  in  such  sale — Fuller  v.  Hunt,  182 

TVTogg       299. 

78.  Ohlson  V.  Wilson  (Tex.  Civ.  App.)  71 
S.    W.    768. 

79.  Charleston  State  Bank  v.  Edman,  99 
111.   App.   235. 

80.  Hurd's  Rev.  St.  1899,  p.  590 — Butler  v. 
Nohe,   98  111.  App.   624. 


640 


CONTRACTS. 


§  3B 


consideration  is  valid  though  the  parties  illegally  cohabited  during  performance, 
where  the  contract  was  not  made  in  contemplation  of  concubinage.*^  An  assignment 
of  future  earnings  in  an  existing  employment  is  a  valid  and  enforceable  contract,*^ 
but  it  is  otherwise  if  no  present  employment  exists.^^  A  contract  requiring  a  teacher 
in  a  public  school  to  take  an  examination  before  a  certain  officer  binds  neither  party, 
where  no  such  officer  exists.**  A  contract  of  indemnity,  made  by  one  who  receives 
certain  property  from  another,  for  protection  against  the  latter's  unlawful  act  in 
seizing  the  property,  is  void.**'  That  one  to  whom  money  was  loaned  was  doing  busi- 
ness under  another  name  in  order  to  deceive  his  creditors  with  knowledge  of  the 
lender  will  not  prevent  recovery  by  the  latter  since  the  loan  could  in  no  way  hinder 
the  creditors.*® 

Certainty  as  to  subject-matter. — A  contract  must  be  definite  as  to  subject- 
matter,*^  so  that  the  jury  may  understand  its  provisions,**  and  so  that  the  measure 
of  damages  for  breach  may  be  ascertained.*®  A  contract  authorizing  plaintiff  to  cut 
timber  from  lands  belonging  to  a  certain  person  on  certain  rivers  in  a  certain  county 
of  the  state  describes  the  lands  with  sufficient  definiteness  to  show  the  subject  of 
contract.®"  That  a  person  since  deceased  did  not  own  land  at  the  time  that  he  agreed 
to  convey  land  to  a  child  in  consideration  of  the  right  to  name  it  will  not  render  such 
contract  void  for  uncertainty,  where  he  subsequently  purchased  land,  which  he  stated 
he  intended  to  convey  in  fullfilment  of  the  contract.®^ 

Consideration. — If  the  contract  is  separable  and  the  remaining  consideration  is 
sufficient,  partial  invalidity  of  consideration  is  harmless.®^  A  note  given  for  a 
gambling  debt  is  uncollectible.®'  A  bond  given  by  a  husband  for  the  payment  of  a 
certain  amoimt  to  his  abandoned  wife  and  child  on  provision  that  an  indictment 


81.  L,ytlo  V.  NeweU,  24  Ky.  K  R.  188.  68  S. 
W.   118. 

82.  Rydson  v.  Larson  (Neb.)  93  N.  W. 
195;  Wenham  v.  Mallin,  103  111.  App.  609; 
Brewer  v.  Griesheimer,  104  111.  App.  323; 
Tolman  v.  Union  Casualty  &  Surety  Co.,  90 
Mo.  App.  274;  Bell  v.  Mulholland,  90  Mo.  App. 
612. 

S3.     Bell  V.  Mulholland,  90  Mo.  App.  612. 

84.  Crabb  v.  School  Dist.  No.  1,  93  Mo. 
App.    254. 

85.  Rice  Bros.  &  Nixon  v.  National  Bank 
of  Commerce   (Mo.  App.)   73  S.  W.   930. 

88.  Kingsbury  v.  Waco  State  Bank  (Tex. 
Civ.  App.)  70  S.  W.  551. 

87.  Sufficiency  of  description  In  contract 
for  sale  of  standing  timber  to  pass  title — 
Hays  V.  McLin.  24  Ky.  L.  R.  1827,  72  S.  W. 
339.  One  by  which  defendant  agrees  to 
furnish  plaintiff  three  hundred  men  on  de- 
mand, and  plaintiff  agrees  to  work  not  less 
than  one  hundred  men  Is  sufficiently  certain 
to  be  valid — McConnell  v.  Arkansas  Brick  & 
Mfg.  Co.,  70  Ark.  568.  Contract  for  manufac- 
ture of  goods  executed  as  too  indefinite  and 
uncertain  to  be  enforced — Howie  v.  Kasno- 
wltz.  83  App.  Div.  (N.  Y.)  295.  Contract  for 
services  as  sufficiently  definite  and  certain 
In  the  work  to  be  performed  so  as  to  be  en- 
forceable— Banta  v.  Banta,  84  App.  Div.  (N. 
Y.)  138.  A  contract  by  which  plaintiff  was 
employed  to  manage  sales  of  a  certain  de- 
partment for  a  certain  percentage  of  the 
profits  without  regard  to  time,  is  unen- 
forceable for  uncertainty  as  to  time  of  em- 
ployment— Faulkner  v.  Des  Moines  Drug  Co.. 
117  Iowa,  120.  Where  a  contract  for  delivery 
of  bonds  was  uncertain.  In  that  It  did  not 
specify  the  particular  bond  to  be  delivered. 
the   transferee   has   no   forceable  Interest  in 


bonds  delivered  to  others,  but  can  only  re- 
cover the  value  of  those  to  be  delivered  to 
him  as  on  an  implied  contract — Cushing  v. 
Chapman,  115  Fed.  237.  A  contract  by  an 
actress  for  the  season  of  a  play  to  com- 
mence at  a  certain  date,  was  not  indefinite  so 
as  to  be  unenforceable,  where  a  provision  for 
performance  during  Christmas  week  of  the 
same  year  showed  that  the  contract  did  not 
apply  to  the  summer  season  of  that  year 
alone — Shubert  v.  Angeles,  80  App.  Div.  (N. 
Y.)  625.  A  contract  containing  a  provision 
that  one  party  should  assume  payment  of  a 
third  person's  note  to  a  bank  in  considera- 
tion of  its  securing  to  such  person  the  as- 
signment of  a  share  of  stock  to  be  held  as 
collateral  for  the  benefit  of  the  bank  and 
the  note,  is  not  void  for  uncertainty  as  to 
what  kind  of  assignment  was  intended — 
First  Nat.  Bank  v.  Park,  117  Iowa,  552. 

88.  Truitt  v.   Fahey.  3  Pen.   (Del.)   573. 

89.  Faulkner  v.  Des  Moines  Drug  Co.,  117 
Iowa,  120.  A  written  contract  between 
stockholders  by  whicli  one  agreed  to  provide 
by  loan  to  the  corporation,  whatever  addi- 
tional capital  is  needed  to  provide  a  working 
fund,  is  too  uncertain  and  vague  to  enable 
enforcement  by  an  action  to  recover  damages 
for  breach — Jones  v.  Vance  Shoe  Co.  (C.  C. 
A.)   115  Fed.  707. 

90.  Strubbe   v.   Lewis    (Ky.)    76  S.  W.   150. 

91.  Daily  v.  Minnick,  117  Iowa,  563. 

92.  Contract  valid  and  enforceable  in  its 
terms,  but  the  consideration  of  which  con- 
sists in  part  of  the  consideration  of  a  previ- 
ous contract  between  the  same  parties,  which 
was  illegal. — Washington  Irr.  Co.  v.  Krutz 
(C.   C.  A.)    119  Fed.   279. 

93.  Hurd'9  Rev.  St.  1899,  p.  590 — Butler  v. 
Nohe,   98  111.  App.   624. 


§  3C 


MUTUALITY. 


641 


pending  against  him  for  abandonment  should  be  suspended  is  not  invalid  because  of 
such  consideration,  since  it  is  for  performance  of  a  duty  which  he  owed  independ- 
ently of  his  written  obligation."*  Under  a  statutory  provision  to  the  effect  that  if 
part  of  the  consideration  for  a  contract  is  unlawful  the  entire  contract  is  void,  a 
contract  with  a  county  clerk  for  the  collection  of  data  from  his  records  and  other 
sources,  part  of  v^hich  is  void  because  of  his  official  duty  to  collect  data  without 
extra  compensation,  is  void  as  to  the  whole.^^ 

(§  3)  C.  Mutuality  of  obligation. — The  contract  must  mutually  bind  the  par- 
tico,*®  and  if  written  should  be  signed  by  both.^^  Each  party  to  the  negotiations 
must  define  his  position  and  create  an  obligation  upon  himself  in  order  to  bind  the 
other.®®  A  clause  attached  to  a  contract,  and  signed  by  one  of  the  parties  only,  which 
concerns  matters  distinct  from  the  subject-matter  of  the  contract,  will  not  bind  either 
party.®*  If  the  quantity  of  personalty  to  be  taken  under  a  contract  of  sale  depends  on 
the  want  or  will  of  one  party,  the  contract  lacks  mutuality.^  A  condition  allowing 
one  party  the  right  of  rejection  will  not  confer  upon  him  the  authority  arbitrarily  to 
decide  so  as  to  render  the  contract  void  for  want  of  mutuality.'^     A  unilateral  con- 


94.  Bea  v.   People,   101   111.   App.   132. 

95.  Civ.  Code,  §  1608 — Humboldt  County  v. 
Stern,   136  Cal.   63.  68  Pac.   324. 

96.  Contracts  held  valid.  A  contract 
whereby  defendant  agreed  to  sell  and  plain- 
tiff to  buy  a  certain  amount  of  oil  for  a  cer- 
tain period  is  sufficient  as  to  mutuality — 
Manhattan  Oil  Co.  v.  Richardson  Lubricating 
Co.  (C.  C.  A.)  113  Fed.  923.  And  a  contract 
by  which  coal  is  to  be  furnished  for  a  cer- 
tain period,  to  be  used  in  a  certain  building, 
its  quality  to  be  passed  upon  by  a  third  per- 
son— Hercules  Coal  &  Min.  Co.  v.  Central 
Inv.  Co.,  98  111.  App.  427.  And  a  contract  to 
allow  another  to  name  a  child  In  considera- 
tion of  conveyance  of  land  to  the  child — 
Dally  V.  Minnick.  117  Iowa,  563.  And  a  con- 
tract to  sell  land  to  a  corporation  to  be  form- 
ed in  consideration  of  a  sum  part  in  cash  and 
the  balance  in  stock — Burke  v.  Mead,  159 
Ind.  252.  A  condition  in  a  contract  for  the 
sale  of  land  to  re-convey  for  a  certain  price 
when  the  purchaser  concludes  to  re-sell,  is 
mutual  in  its  terms — Peterson  v.  Chiise,  115 
Wis.  239.  A  contract  to  furnish  a  party  with 
as  much  goods  of  a  certain  kind  as  he  might 
need  in  his  business  in  a  year,  is  not  lacking 
in  mutuality  as  requiring  the  purchaser  only 
to  take  such  goods  as  he  chose,  where  the 
character  and  amount  of  his  business  was 
known  to  the  other  party — Excelsior  Wrap- 
per Co.  V.  Messinger  (Wis.)  93  N.  W.  459.  A 
lease  of  a  coal  mine  is  not  void  for  want  of 
mutuality  where  the  lessee  is  required  to 
pay  a  certain  price  for  the  coal  he  mines,  to 
furnish  the  lessor  a  certain  amount  free 
each  year,  and  not  to  stop  work  longer  than 
a  year  at  a  time — Ingle  v.  Bottoms  (Ind.)  66 
N.  E.  160.  A  contract  providing  that  plain- 
tiffs will  buy  all  their  mirror  plates  from 
defendant,  if  defendant  will  sell  on  certain 
terms,  implies  a  covenant  on  the  part  of 
plaintiffs  to  buy  In  return  for  defendant's 
covenant  to  sell  and  is  not  void  for  want  of 
mutuality — Fuller  v.  Schrenk,  171  N.  Y.  671. 
Nor  a  contract  whereby  a  manufacturer 
agreed  to  buy  all  his  raw  material  of  a  cer- 
tain sort  for  a  certain  period  from  another 
at  a  certain  price  which  the  other  agreed  to 
furnish  as  ordered,  it  being  agreed  that  the 
quantity  used  was  understood  to  be  about  a 

Cur.  Law — 41. 


certain  amount,  but  that  the  buyer  should 
have  the  right  to  demand  twice  as  much — 
Loudenback  Fertilizer  Co.  v.  Tennessee 
Phosphate  Co.  (C.  C.  A.)  121  Fed.  298.  A 
contract  for  the  construction  of  a  switch 
track  giving  the  right  to  one  to  maintain  and 
operate  it  while  business  is  carried  on  at  a 
certain  mill  thereon,  is  not  void  for  lack  of 
mutuality,  because  such  party  was  given 
the  right  to  remove  the  track  whenever  in 
its  opinion  Its  maintenance  was  not  justified 
— Michigan  Cent.  R.  Co.  v.  Chicago,  K.  &  S. 
Ry.  Co.  (Mich.)  93  N.  W.  882. 

Contracts  held  invalid.  A  contract  con- 
cerning burial  lots  in  a  cemetery  which 
does  not  designate  the  lots  with  sufficient 
certainty  so  that  they  may  be  identified  is 
invalid — Buckley  v.  Wood,  67  N.  J.  Law,  583. 
And  a  contract  by  a  husband  for  his  wife 
w^ith  another  made  without  her  knowledge 
or  authority — Davis  v.  Walker,  131  Ala.  204. 
And  a  contract  reciting  that  certain  parties 
desired  to  ship  certain  loads  of  lumber  and 
that  the  other  party  agreed  to  carry  any 
and  all  of  this  lumber  as  may  be  desired  by 
the  former — Dennis  v.  Slyfield  (C.  C.  A.)  117 
Fed.    474. 

97.  A  contract  for  sale  of  goods  during  a 
certain  time,  at  a  certain  price,  binding  in 
its  terms  only  as  to  so  much  goods  as  the 
purchaser  shall  use  in  connection  with  that 
particular  portion  of  his  construction  during 
that  time  is  sufficiently  mutual — Laclede 
Const.  Co.  V.  Tudor  Iron  Works,  169  Mo.  137. 
A  contract  between  a  brewing  company  and 
an  individual  signed  by  the  latter  alone, 
delegating  him  to  buy  beer  and  to  pay  rent 
to  the  company  for  Its  premises  in  return 
for  money  paid  by  It  for  his  license,  is  uni- 
lateral and  unenforceable,  where  it  appears 
that  the  consideration  was  never  paid — 
Koppitz-Melchers  Brew.  Co.  v.  Behm  (Mich.) 
90  N.  W.  676. 

98.  Arnold  v.  Cason,  95  Mo.  App.  426. 

99.  Baylies  v.  Automatic  Fire  Alarm  Co., 
70  App.  Div.   (N.  Y.)  537. 

1.  City  of  Ft.  Scott  v.  W.  G.  Eads  Broker- 
age Co.   (C.  C.  A.)  117  Fed.  51. 

2.  Lllienthal  Bros.  v.  Stearns,  121  Fed. 
197. 


6+2 


CONTRACTS. 


§  3E 


tract  may  become  binding  by  performance,'  and  if  a  contract  not  mutual  be  accepted 
and  performed  by  one,  equity  will  compel  performance  by  the  other.* 

(§  3)  D.  Unreasonable  or  oppressive  contracts;  provisions  as  to  lapse  or  for- 
feiture.— The  terms  of  a  contract  must  be  reasonable,"  but  if  it  appears  fair  at  time 
of  execution  in  view  of  facts  and  information  on  which  the  parties  acted  at  that  time, 
that  it  proves  unreasonable  and  inequitable  by  later  developments  after  acceptance 
and  enjoyment  of  benefits,  cannot  prevent  its  enforcement.^  The  benefits  to  be  re- 
ceived from  a  contract  by  one  of  the  parties  do  not  necessarily  show  it  to  be  uncon- 
scionable in  the  absence  of  fraud  or  proof  that  such  benefits  were  excessive.'^  Lapses 
or  forfeitures  are  not  favored,*  but  reasonable  provisions  will  not  be  disturbed ;"  and 
to  render  a  contract  unlawful  because  dependent  for  success  on  foreitures  or  lapses,  it 
must  appear  that  it  is  not  only  largely  so  dependent  but  that  it  is  so  beyond  the 
range  of  reasonable  probability  that  the  number  of  forfeitures  or  lapses  necessary  to 
render  it  effectual  will  not  occur  in  the  time  required."  All  ambiguities  in  a  con- 
tract will  be  resolved  against  the  existence  of  forfeitures,  but  if  a  forfeiture  is  pro- 
vided for  in  unmistakable  terms,  it  will  not  be  relieved  against  either  at  law  or  in 
equity." 

(§3)  E.  Effect  of  public  policy  in  general}^ — The  power  of  the  courts  to  de- 
clare a  contract  void  as  against  public  policy  should  never  be  exercised  unless  the  case 
is  one  clear  from  doubt.^^  They  will  be  much  less  inclined  to  declare  void  as  against 
public  policy,  contracts  made  by  persons  of  full  age,  sound  mind,  and  without  disa- 


3.  Allen  v.  New  Domain  Oil  &  Gas  Co., 
24  Ky.  L.  R.  2169,  73  S.  W.  747;  Friend  v. 
Mallory.  52  W.  Va.  53;  Hoffman  v.  Colgan.  25 
Kj'.  L.  R.  98,  74  S.  W.  724;  Los  Angeles  Trac- 
tion Co.  V.  -^Mlshire,  135  Cal.  654,  67  Pac. 
1086.  Construction  of  contract  as  unilateral 
— Automatic  Vending  Co.  v.  Heins,  115  N.  T. 
St.  Rep.  301.  A  building  contract  providing 
that  one  of  the  parties  and  the  architect 
shall  determine  conclusively  disputes  as  to 
the  construction  or  what  constitutes  extra 
work,  will  not  bind  the  other  party  since 
one  party  to  the  contract  cannot  stipulate 
that  he  shall  arbitrate  differences — Fulton 
County  Com'rs  v.  Gibson,  158  Ind.  471.  An 
agreement  by  a  land  owner  to  pay  a  broker 
a  certain  commission  in  case  he  himself  sold 
the  land  Is  invalid  on  Its  face  as  a  unilateral 
contract  but  the  broker  by  taking  steps  to 
secure  a  sale  may  perform  sufficiently  to  be 
entitled  to  its  enforcement — Lapham  v.  Flint, 
86  Minn.  376. 

4.  Corbet  v.  Oil  City  Fuel  Supply  Co.,  21 
Pa.  Super.  Ct.  80. 

5.  A  contract  whereby  an  individual 
agrees  with  the  county  board  of  supervisors 
to  discover  taxable  property  In  the  county 
which  had  escaped  taxation  through  fraud  or 
otherwise,  and  pay  all  costs  and  attorney's 
fees  incurred  in  collecting  such  taxes  for  a 
compensation  of  one-half  the  amount  so  col- 
lected. Is  not  necessarily  unreasonable  or 
unjtist  or  excessive  as  to  compensation — 
Shinn  v.  Cunningham  (Iowa)  94  N.  W.  941. 
A  contract  of  sale  containing  a  condition 
that  the  sellers  would  not  engage  or  become 
Interested  in  catching  or  manufacturing 
products  from  certain  fish  along  the  Atlantic 
coast  in  competition  with  the  purchaser  for 
the  period  of  20  years  is  not  oppressive  and 
unreasonable  so  as  to  be  void  as  against 
public  policy — Fisheries  Co.  v.  Lennen,  116 
Fed.  217.  A  contract  whereby  a  corporation 
promises    to   assist   holders   of   it   and   other 


contracts  in  purchasing  homes  for  them- 
selves in  consideration  of  stated  payments, 
is  against  public  policy  where  some  of  the 
contributors  can  receive  no  benefit  for  more 
than  seventy  years — State  v.  Nebraska  Home 
Co.   (Neb.)   92  N.  W.  763. 

6.  T^'ood  V.  Casserleigh,  30  Colo.  287,  71 
Pac.  360. 

7.  Sufficiency  of  showing  that  attorney's 
fees  exacted  were  unreasonable — In  re  Fitz- 
simons,  77  App.  Div.  (N.  Y.)  345,  12  N.  Y. 
Ann.  Cas.   250. 

8.  If  it  appears  that  a  material  benefit 
has  been  secured  by  a  contract  to  one  of  the 
parties  who  is  asking  to  enforce  a  forfeiture 
thereunder,  or  that  he  has  suffered  no  dam- 
ages by  a  defect  in  performance  by  the  other, 
the  forfeiture  will  not  be  enforced — Knight 
v.  Orchard,   92  Mo.  App.   466. 

9.  A  provision  in  a  contract  for  sale  of 
goods  which  gives  the  purchaser  the  right 
to  reduce  or  cancel  the  order  at  any  time 
before  shipment  of  the  goods  without  lia- 
bility for  damage  is  valid — Hypse  v.  Avery 
Mfg.  Co.    (Tex.   Civ.  App.)   74   S.   W.   812. 

10.  Equitable  Loan  &  Security  Co.  v. 
Waring  (Ga.)  44  S.  E.  320.  Contract  for 
sale  of  coupons  redeemable  in  merchandise 
is  against  public  policy  where  it  will  cer- 
tainly leave  purchasers  of  coupons  finally  of 
no  value — Hubbard  v.  Frelburger  (Mich.)  94 
N.   "W.   727. 

11.  Equitable  Loan  &  Security  Co.  v. 
Waring   (Ga.)    44  S.  E.   320. 

13.  Contract  to  recover  for  services  In 
brokerage  business — Cullison  v.  Downing,  42 
Or.  377,  71  Pac.  70.  An  agreement  for  the 
exclusive  privilege  of  running  an  observa- 
tion wheel  at  a  pleasure  resort  during  the 
life  of  a  patent  thereon,  is  not  against  pub- 
lic policy — Sommers  v.  Myers  (N.  J.  Sup.)  54 
Atl.   812. 

13,  14,  15.  Equitable  Loan  &  Security  Co. 
V.  Waring  (Ga.)    44  S.  E.  320. 


§  3F 


RELEASE  OP  LIABILITY. 


643 


bilities,  than  those  made  by  persons  under  disability  or  of  unsound  mind.**  That  a 
contract  is  merely  unwise  or  foolish  is  insufficient  to  render  it  void  as  against  public 
policy.^"  There  must  appear  elements  of  bad  faith  or  intentions  inimical  to  public 
interests.^® 

(§3)  F.  Contracts  limiting  liability  for  negligence  or  releasing  damages}'' — 
Contracts  limiting  the  liability  of  carriers  for  loss  resulting  from  negligence  of  the 
carriers  or  their  agents  are  generally  void,*^  except  perhaps  in  certain  particulars  al- 
lowed by  statute/^  though  in  IMaine  they  will  be  held  valid  as  to  injuries  to  one  riding 
on  a  pass/°  but  in  Washington  even  such  contract  cannot  extend  to  the  death  of  the 
passenger.^*  A  carrier  may  limit  his  liability  for  loss  of  goods  where  such  contract 
is  made  as  a  basis  merely  for  carrier's  charges  and  responsibilit}'/^  as  where  it  is 
entered  into  in  consideration  of  a  reduced  rate  of  shipment  ;^^  and  likewise  a  carrier 
uiay,  for  a  valuable  consideration,  make  a  contract  fixing  the  value  of  property  to 
be  transported  as  a  limitation  of  liability.^"*  The  giving  of  insurance  on  goods  in 
favor  of  a  carrier  by  a  consignor,  fully  protecting  the  carrier  from  loss,  is  valuable 
consideration  for  a  promise  by  the  carrier  not  to  insist  on  an  exemption  from  lia- 
bility for  loss  by  fire.^^  He  may  contract  against  the  assumption  of  liability  accru- 
ing to  him  merely  as  bailee.^®  A  contract  by  a  railroad  company  relieving  it  from 
liability  is  not  against  public  policy  where  it  is  not  made  with  a  passenger  for  hire 
or  shipper  regarding  a  contract  of  carriage.-^  A  contract  by  a  railroad  company  to 
build  a  sidetrack  for  convenience  of  a  saw-mill  in  consideration  of  a  release  of  all 
damages  from  killing  of  stock  thereon  is  not  invalid  as  violating  a  statute  against 


16.  The  action  of  the  attorney  for  a  mort- 
gagee In  foreclosure  in  procuring  an  assign- 
ment of  the  judgment  was  not  contrary  to 
public  policy  though  the  Interest  of  the 
mortgagor  was  sold  later  under  execution  on 
a  junior  judgment — Miller  v.  Cousins  (Iowa) 
90  N.  W.  814.  Money  recovered  by  plaintiff 
in  the  court  of  claims  because  of  Indian 
depredations  on  property  jointly  owned  by 
himself  and  his  sister  under  an  agreement 
to  pay  her  an  equal  share  of  the  money,  may 
be  recovered  by  her,  there  being  no  intent 
nor  conspiracy  between  them  to  defraud  the 
government — Padilla  v.  Padilla  (N.  M.)  70 
Pac.  563.  A  contract  between  stockholders 
in  a  bank  and  another,  to  elect  him  cashier 
for  five  years  unless  he  resigns  sooner,  pro- 
viding that  he  should  purchase  certain 
shares  of  the  stock  to  be  repurchased  by 
them  when  he  left  their  employ,  is  not  void 
as  against  public  policy  where  it  does  not 
appear  that  it  was  not  made  in  good  faith 
and  to  promote  the  interest  of  the  bank — 
Bonta  v.  Gridley,  77  App.  Div.  (N.  Y.)  33.  A 
contract  of  a  corporation  made  through  Its 
general  manager  providing  for  a  lease  to 
another  company  of  a  manufacturing  plant, 
and  that  such  manager  shall  superintend 
the  plant  and  represent  the  other  company. 
Is  not  against  public  policy,  where  the  first 
corporation  approved  the  contract  through 
its  director  or  permitted  him  to  act  with 
full  knowledge  of  the  fact — Pungs  v.  Ameri- 
can Brake-Beam  Co.,  200  111.  306.  A  con- 
tract whereby  one  creditor  of  an  embarrass- 
ed debtor  outwardly  agrees  to  a  reduction 
equal  to  that  of  other  creditors  while  secret- 
ly exacting  full  payment  in  order  to  Induce 
other  creditors  to  settle  their  claims  at  such 
reduction.  Is  void  as  against  public  policy 
and  notes  In  pursuance  thereof  cannot  be 
enforced — John  T.  Hardle's  Sons  &  Co.  v. 
Bcheen   (La.)   34  So.  707. 


17.  Contract  by  railroad  company  for  car- 
rying passengers  construed  as  not  void  as 
against  public  policy  because  of  exemption 
from  liability  for  negligence — Seaboard  Air 
Line  Ry.  Co.  v.  Main,  132  N.  C.  445. 

IS.  Norfolk  &  W.  Ry.  Co.  v.  Tanner  (Va.) 
41  S.  E.  721;  Morse  v.  Canadian  Pac.  Ry.  Co., 
97  Me.  77;  Fasy  v.  International  Nav.  Co., 
77  App.  Div.   (N.  Y.)  469. 

19.  Comp.  St.  c.  72,  art.  1,  §  3 — Chicago,  R. 
I.  &  P.  R.  Co.  V.  Hambel  (Neb.)  89  N.  W. 
643. 

20.  Duncan  v.  Maine  Cent.  R.  Co.,  113  Fed. 
508. 

21.  Northern  Pac.  Ry.  Co.  v.  Adams  (C.  C. 
A.)    116   Fed.   324. 

22.  O'Malley  v.  Great  Northern  Ry.  Co., 
86  Minn.  380. 

23.  Mears  v.  New  York,  N.  H.  &  H.  R.  Co., 
75  Conn.  171;  Adams  Exp.  Co.  v.  Carnahan, 
29  Ind.  App.  606. 

24.  Adams  Exp.  Co.  v.  Carnahan,  29  Ind. 
App.  606.  A  limitation  In  a  bill  of  lading 
of  the  carrier's  liability  to  damages  result- 
ing only  from  negligence  of  Itself  or  Its 
agents.  Is  binding — Louisville  &  N.  R.  Co.  v. 
Landers,  135  Ala.  504. 

25.  Texas  &  P.  Ry.  Co.  v.  Cau  (C.  C.  A.) 
120  Fed.  15,  645. 

26.  Chicago,  St.  P.,  M.  &  O.  R.  Co.  v. 
Schuldt  (Neb.)  92  N.  W,  162. 

27.  Liability  for  fire  communicated  to  a 
building— Ordelheide  v.  Wabash  R.  Co.  (Mo.) 
75  S.  W.  149.  A  contract  by  an  express  mes- 
senger which  relieves  a  railroad  company 
from  liability  for  personal  injuries  to  him 
while  performing  his  duties  upon  Its  train, 
resulting  from  ordinary  negligence  of  rail- 
road employes.  Is  not  invalid  as  against  pub- 
lic policy — Peterson  v.  Chicago  &  N.  W.  Ry. 
Co.   (Wis.)   96  N.  W.  532. 


644 


CONTRACTS. 


§   3G 


limitation  of  liability."  A  city  cannot  escape  liability  for  damages  resulting  from 
its  negligence  in  permitting  a  sewer  to  remain  in  a  defective  condition  by  means  of 
an  ordinance  permitting  sewer  connections  to  be  made  on  condition  that  the  person 
for  whose  benefit  tlicy  are  made  shall  not  recover  for  any  damages  resulting  from 
the  connection."  Contracts  between  a  master  and  his  servant,  or  instructions  and 
rules  for  service  which  are  attempted  to  be  made  a  part  of  such  contracts,  by  reason 
of  which  the  liability  of  the  master  for  injuries  to  his  servants  resulting  from  his 
negligence  is  limited,  are  against  public  policy  and  void,^°  unless  the  employe  is  left 
free  to  decide  between  the  benefits  under  the  contract  and  his  right  of  action.^^ 

(§3)  G.  Contracts  affecting  marriage  or  divorce. — A  bequest  by  a  son  to  his 
mother  on  condition  that  she  should  not  remarry  is  not  void  as  against  public  poli- 
cy,^^  or  a  contract  by  one  who  is  desirous  of  marrying  a  woman  to  pay  for  a  release  of 
her  contract  for  employment  is  not  void  as  in  restraint  of  marriage.^^  An  agreement 
between  a  husband  and  wife  calculated  to  facilitate  the  securing  of  a  divorce  of  a 
vinculo  matrimonii,^*  or  a  conveyance  from  a  husband  to  his  wife,  the  consideration 
of  which  is  calculated  to  bring  about  a  separation,  is  against  public  policy  ;^^  but 
an  agreement  between  a  husband  and  wife  whose  relations  were  unsatisfactory  is 
not  necessarily  collusive  so  as  to  be  invalid,  though  one  of  them  was  contemplating 
divorce,  and  the  other  relying  on  the  agreement  did  not  appear  in  the  divorce  pro- 
ceedings, since  there  is  nothing  in  the  act  committed  or  appearing  to  have  been 
committed,  which  constituted  grounds  for  divorce.'®  An  assignment  of  part  of  her 
alimony  by  a  divorced  wife  for  services  contravenes  public  policy.'^ 

(§3)  H.  Contracts  made  or  to  he  performed  on  Sunday. — A  note  signed  on 
Sunday  is  valid  if  delivered  on  another  day.'*  In  Minnesota,  contracts  casually  ex- 
ecuted or  delivered  on  Sunday  are  not  void  under  the  statute.'^  A  church  subscrip- 
tion signed  on  Sunday  is  valid  in  Wisconsin.*"  A  contract  for  a  theatrical  perform- 
ance on  Sunday  is  not  contrary  to  public  policy  because  of  a  statute  forbidding  sport- 
ing on  Sunday  or  employment  at  common  labor.*^ 

(§3)  /.  Contracts  regarding  control  or  disposition  of  property. — An  agree- 
ment in  consideration  of  relinquishing  a  right  to  administration,*^  or  a  contract 
whereby  one  of  two  legatees  agrees  to  pay  a  bequest  to  the  other,  is  void  ;*'  but  a  con- 
tract by  an  administrator  with  his  surety,  after  administration  has  proceeded  for 


28.  Rev.  St.  art.  320 — Missouri,  K.  &  T. 
R.  Co.   V.   Carter,   95  Tex.    461. 

20.     Murphy  v.  IndianapoUs.  158  Ind.  238. 

SO.  Contract  between  express  company 
and  messenger  by  which  the  latter  agreed  to 
assume  risk  of  accidents  and  injuries  result- 
ing from  the  negligence  of  carriers  (Viola- 
tion of  Code.  Iowa.  §§  2071.  2074,  and  Acts  27 
Gen.  Assembly,  c.  49) — O'Brien  v.  Chicago  & 
N.  W.  Ry.  Co..  116  Fed.  502.  Stipulation  in 
application  for  employment  on  a  railroad 
whereby  the  company  attempts  to  compel  the 
employe  to  assume  the  risk  of  obstructions 
near  a  track — Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Dar- 
by (Tex.  Civ.  App.)  67  S.  W.  446.  Rules  posted 
by  mining  company  which  it  attempts  to 
make  a  part  of  its  contract  with  its  employes 
whereby  notice  is  given  that  the  employes 
assume  the  risk  of  falling  roofs — Consoli- 
dated Coal  Co.  V.  Lundak,  196  111.  594;  Him- 
rod  Coal  Co.  v.  Clark,  197  111.  514. 

31.  A  contract  between  a  corporation  and 
employes  becoming  members  of  its  "Relief 
Department."  providing  for  release  of  dam- 
ages for  injuries  in  consideration  of  benefits 
so  received  is  not  invalid  as  against  public 
policy.     The   employe    is   given    the    right    to 


elect  to  receive  benefits  from  the  "Depart- 
ment" or  sue  for  injuries  and  need  not  de- 
cide without  opportunity  for  counsel  and  ad- 
vice (Rev.  St.  1899,  §  2876) — Hamilton  v.  St. 
Louis,  K.  &  N.  W.  R.  Co..  118  Fed.  92. 

32.  Overton  v.  Lea,  108  Tenn.  505. 

33.  Holz  V.  Hanson,  115  Wis.  236. 

34.  Palmer  v.  Palmer  (Utah)   72  Pac.  S. 

35.  Brun  v.  Brun  (Neb.)   90  N.  "W.  860. 

3C.  Comp.  Laws  1887,  §  2568 — Burgess  v. 
Burgess  (S.  D.)   95  N.  V^.  279. 

37.  Lynde  v.  Lynde  (N.  J.  Law)  52  Atl. 
694. 

38.  Hofer  v.  McClung  &  Co.,  24 'Ky.  L.  R. 
355,  68  S.  TV".  438;  Barger  v.  Farnham  (Mich.) 
90  N.  W.   281. 

39.  Gen.  St.  1894,  §§  6510-6513 — Holden  v. 
O'Brien.   86  :Minn.   297. 

40.  Rev.  St.  1878,  §  4595 — Hodges  v.  Nalty, 
113  Wis.  567. 

41.  Contract  for  music  and  dancing  each 
day  of  the  week  including  Sunday  construed 
in  connection  with  Criminal  Code.  §  241 — 
Wirth  V.  Calhoun  (Neb.)   89  N.  W.  785. 

42.  Lewis'  Estate,   21  Pa.  Super.  Ct.  393. 

43.  Mitchell  v.   Mitchell,   132  N,   C.   350. 


§3J 


LITIGIOUS    CONTRACTS. 


645 


nearly  two  years,  that  in  consideration  of  signing  his'  new  bond,  the  administrator 
will  pay  half  of  the  commission  due  him  as  soon  as  received,**  or  whereby  the  prom- 
isor agrees  to  include  in  his  will  a  legacy  compensating  the  other  for  services  per- 
formed,*^ or  one  by  which  a  decedent  grants  all  of  his  property  at  his  death  to  anoth- 
er if  she  will  continue  to  live  with  him  until  that  time,  and  care  for  him  as  a  daugh- 
ter, is  not  void  as  against  public  policy.*^  A  secret  agreement  between  prospective 
heirs  whereby  one  agrees  to  induce  the  ancestor  not  to  change  his  will  is  against  pub- 
lic policy  unless  the  ancestor  knows  of  and  assents  to  the  agreement.*''  A  contract 
whereby  defendant  promises  to  pay  plaintiff  a  certain  amount  of  money,  if  a  testator, 
in  whose  property  each  was  to  share,  would  not  change  his  will  so  as  to  give  plaintiff 
more  property  as  he  intended  to  do,  does  not  relate  exclusively  to  an  expectancy 
where  it  appears  that  the  testator  stated  definitely  that  he  had  decided  to  so  change 
his  will,  and  may  be  enforced  in  a  court  of  law.**  An  agreement  whereby  stock- 
holders of  a  private  trading  corporation  arranged  that  on  the  death  of  one  or  more 
of  them,  the  remainder  should  have  an  option  to  purchase  the  stock  of  such  deceased 
person  or  persons  at  its  value,*®  or  a  gift  causa  mortis  to  one  who  is  to  care  for  the 
donor  during  life,  pay  his  debts  after  death,  and  after  applying  the  remainder  to 
his  gift,  deliver  any  surplus  to  the  donor's  sister,  is  not  against  public  policy.^**  An 
oral  agreement  that  a  son  shall  become  vested  with  the  family  homestead  on  death 
of  his  parents  in  consideration  of  their  support  during  life,  fairly  made  and  sub- 
stantially performed,  is  valid  under  the  law  as  to  homesteads.^^ 

(§3)  J .  Contracts  controlling  or  promoting  litigation.^^ — Any  contract  with 
an  attorney  for  the  conduct  of  a  suit  on  a  contingent  fee  which  limits  the  client's  con- 
trol over  the  litigation  is  void  as  against  public  policy,^'  unless  it  appears  that  the  at- 
torney already  had  an  interest  which  entitled  him  to  be  considered  in  the  settlement.'^* 
iln  assignment  of  one-third  of  "whatever  may  be  recovered"  in  a  suit  about  to  be 
instituted  "or  by  way  of  compromise"  as  attorney's  fees  is  not  against  public  policy 
as  preventing  compromised^  A  contract  whereby  an  attorney  agrees  to  prosecute 
claims  at  his  own  expense  is  invalid  as  being  champertous.^*  A  contract  between  the 
state  and  an  agent  for  prosecution  of  a  claim  is  not  against  public  policy  because 
of  a  provision  for  a  contingent  fee.^''  Contracts  to  secure  litigation  for  an  attorney,''* 
or  to  furnish  evidence,  will  not  be  upheld.^*    A  provision  in  a  contract  for  arbitra- 


May  V.  Moore  (Mo.  App.)  72  S.  W.  476. 

Banks  v.   Howard,   117  Ga.   94. 

HaU   V.   Oilman,    77   App.    Div.    (N.    T.) 


De  Boer  v.  Harmsen    (Mich.)    90  N. 


Teske  v.  Dittberner    (Neb.)    91   N,  W. 


44. 
45. 
46. 

458. 

47,  48. 

W.  1036. 

49.  Fitzsimmons  v.  Lindsay,  205  Pa.  79. 

50.  Deneff  v.  Helms,  42  Or.  161,  70  Pac. 
390. 

51, 
181. 

52.  Contracts  Interfering  fvitb  poTvers  of 
courts.  A  contract  whereby  an  insolvent 
for  whose  property  a  receiver  was  about  to 
be  appointed  agreed  with  one  of  his  creditors 
to  ask  the  court  to  appoint  the  latter  receiver 
In  consideration  of  his  agreement  to  act  with- 
out pay,  if  appointed,  was  not  against  public 
policy  as  an  unwarrantable  interference  with 
the  power  of  the  court  in  the  appointment — 
Polk  V.  Johnson  (Ind.)  66  N.  E.  752.  A  con- 
dition in  a  contract  between  citizens  of  a 
foreign  country,  partly  to  be  performed  in 
the  United  States  and  partly  abroad,  that  the 
courts  of  such  foreign  country  should  have 
exclusive  jurisdiction  of  actions  thereon,  is 
not  against  public  policy  so  that  the  courts 


of  Massachussetts  will  refuse  to  give  It  the 
validity  which  it  has  under  the  foreign  law 
according  to  the  treaty  with  the  foreign 
country  giving  the  citizens  of  each  full  rights 
in  the  courts  of  the  other — Mittenthal  v. 
Mascagni,  183  Mass.  19. 

53.  Contract  providing  that  no  settlement 
should  be  made  unless  the  attorney  was  pres- 
ent and  directed  it — Davis  v.  Chase,  159  Ind. 
242.  Contract  with  an  attorney  providing  for 
a  contingent  fee  on  recovery  or  settlement 
and  that  no  settlement  can  be  made  without 
the  attorney's  presence  and  direction  limits 
the    client's    direction   of   the   case — Id. 

54.  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Carlock 
(Tex.  Civ.  App.)    75   S.  W.   931. 

55.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Gin- 
ther   (Tex.)   72  S.  W.  166. 

56.  3  Rev.  St.  (5th  Ed.)  p.  478.  §  72;  Code 
Civ.  Proc.  §  74 — Stedwell  v.  Hartmann,  173 
N.   T.   624. 

57.  Opinion  of  the  Justices  (N.  H.)  54 
Atl.  950. 

58.  A  contract  between  a  layman  and  an 
attorney  by  which  the  former  agrees  to  se- 
cure business  for  the  latter  In  the  prosecu- 
tion of  suits  for  a  third  person  and  to  look  up 


646 


CONTRACTS. 


§  3K 


tion  will  not  prevent  an  action  thereon,®'^  but  an  agreement  whereby  parties  stipulate 
in  advance  that  they  will  not  enforce  substantial  rights  in  the  courts,  which  may 
subsequently  arise  in  dispute  between  them,  but  will  submit  such  rights  to  a  private 
tribunal,"^  and  a  conditiou  in  an  insurance  policy  that  an  award  by  arbitration  fix- 
ing the  loss  shall  precede  any  action  against  the  insurer  is  void.**^  A  contract  provid- 
ing that  the  payment  of  fees  to  a  disclosure  commissioner  should  be  dependent  ou 
collection  from  the  judgment  debtors  is  void  as  against  public  policy,®'  but  otherwise 
as  to  an  agreement  that  hearsay  evidence  of  a  witness'  testimony  may  be  offered  in 
consideration  of  abandonment  of  a  proceeding  to  perpetuate  it.®* 

(§3)  K.  Contracts  compounding  offenses  or  interfering  with  prosecution. — 
Contracts  by  which  the  commission  of  offenses  is  condoned,®^  concealed,®®  or  the 
prosecution  therefor  suppressed  or  dismissed,®^  are  void. 

(§3)  L.  Contracts  interfering  with  public  service,  office,  or  trust. — Con- 
tracts which  tend  to  injure  public  service  by  public  or  quasi-public  servants,®'  as, 


witnesses,  whose  testimony  is  to  be  used  in 
such  case  for  a  share  of  the  fees  received 
by  the  attorney,  is  void  as  against  public 
policy — Langdon  v.  Conlin  (Neb.)  93  N.  W. 
389. 

50.  Contract  whereby  a  patentee  promises 
to  furnish  evidence  to  a  third  person  in  ac- 
tions which  he  agrees  to  bring  against  as- 
signees of  the  patentee  to  set  aside  a  trans- 
fer of  patents  to  them — Cowles  v.  Rochester 
Folding  Box  Co.,  81  App.  Div.  (N.  Y.)  414. 
One  wlio  contracted  with  another  to  furnish 
evidence  to  establish  the  latter's  interest 
as  an  heir  in  certain  property  and  to  com- 
mence suit  to  recover  such  interest  of  which 
he  should  have  full  direction  and  control,  and 
all  the  expenses  of  which  he  was  to  pay,  in 
consideration  of  two-thirds  of  the  interest 
recovered,  is  a  contract  for  the  purpose  of 
gambling  in  litigation  and  is  void  because  of 
public  policy  though  not  voidable  under  the 
local  statute  against  maintenance — Casser- 
leigh  v.  Wood  (C.  C.  A.)  119  Fed.  308. 

60.  Turner  v.  Stewart,  51  "W.  Va.  493.  A 
provision  in  a  building  contract  that  the 
amount  of  the  work  to  be  paid  for  shall  be 
determined  by  the  engineers  whose  finding 
should  be  conclusive  is  not  a  general  arbi- 
tration clause  attempting  to  limit  the  juris- 
diction of  courts,  but  within  the  rule  au- 
thorizing a  provision  that  no  suit  shall  be 
brought  until  certain  acts  shall  be  performed 
by  a  third  person — National  Contracting  Co. 
V.  Hudson  River  Water  Power  Co.,  170  N.  Y. 
439. 

61.  Provision  for  arbitration  In  insurance 
policy  as  condition  precedent  to  action  upon 
the  policy — Hartford  Fire  Ins.  Co.  v.  Hon 
(Neb.)  92  N.  W.  746. 

62.  Phoenix  Ins.  Co.  v.  Zlotky  (Neb.)  92 
N.  W.  736;  Hartford  Fire  Ins.  Co.  v.  Hon 
(Neb.)   92  N.  W.   746. 

63.  TVatson  V.  Fales,  97  Me.  366. 

64.  Thompson  v.  Ft.  "Worth  &  R.  G.  Ry. 
Co.    (Tex.  Civ.  App.)    73  S.  W.   29. 

65.  Notes  given  by  an  employe  by  a  surety 
company  which  had  issued  his  employment 
bond  for  the  amount  of  his  defalcation  from 
his  employer  whom  the  company  had  reim- 
bursed in  consideration  of  a  promise  of  the 
company  not  to  prosecute  for  embezzlement 
— United  States  Fidelity  &  Guaranty  Co.  v. 
Charles,  131  Ala.  658. 

66.  Contract,  the  consideration  of  which 
is  concealment  of  a  crime  already  committed 


— Folmar  v.  Siler,  132  Ala.  297.  That  a  con- 
tract void  because  based  on  a  promise  to  con- 
i:eal  a  crime  already  committed  contains  an 
idditional  consideration  w^hich  is  legal  will 
not  make  the  contract  valid — Id. 

67.  Contract  by  the  president  of  a  cor- 
poration while  under  arrest  founded  on  a 
promise  that  he  will  not  be  prosecuted — 
Metropolitan  Land  Co.  v.  Manning  (Mo.  App.) 

71  S.  W.  696.  Note,  the  consideration  of 
which  is  the  suppression  of  a  criminal  prose- 
cution or  the  dismissal  of  a  prosecution  al- 
ready instituted — Smith  Premier  Typewriter 
Co.  V.  Mayhew  (Neb.)  90  N.  W.  939.  Agree- 
ment between  the  attornej'  of  a  railroad  com- 
pany and  the  attorney  of  the  commonwealth 
that  an  apr&al  shall  be  taken  from  a  suc- 
cessful prosecution  of  two  indictments 
against  the  company,  and  if  the  judgment  is 
affirmative,  the  company  will  consent  to  a 
line  in  three  of  the  twelve  remaining  indict- 
ments, and  that  the  other  nine  shall  be  dis- 
missed— Spalding  v.   Hill,    24   Ky.  L.    R.   1802, 

72  S.  W.  307.  An  agreement  w^hereby  one 
promised  to  repay  for  property  stolen  from 
mother  by  the  former's  relative,  if  the  latter 
would  not  prosecute  for  the  theft,  is  illegal, 
though  acted  upon  by  the  promisee  so  that 
the  thief  was  permitted  to  escape  with  his 
property — Giles  v.  De  Cow  (Colo.)  70  Pac. 
681. 

68.  Contracts  held  valid.  Agreement  by 
a  railroad  company  to  build  and  maintain  a 
switch  for  a  private  property  owner  which 
did  not  affect  the  performance  of  the  duties 
of  the  company  to  the  public — Scholten  v.  St. 
Louis  &  S.  F.  R.  Co.  (Mo.  App.)  73  S.  W.  915. 
Agreement  that  a  public  officer  should  look 
to  clients  and  not  to  their  attorney  for  fees 
if  suits  were  unsuccessful — Edgerly  v.  Hale, 
71  N.  H.  138.  A  sale  of  school  apparatus  to 
a  school  board  where  no  deceit  was  used  In 
obtaining  signatures  of  members  of  the  board 
to  the  contract,  though  each  signed  without 
consulting  the  others,  and  the  supplies  were 
accepted  and  used  by  the  district — Johnson 
V.  School  Corp.,  117  Iowa,  319.  Mortgage 
aiven  by  an  officer  when  he  was  suspected  of 
having  embezzled  public  funds,  to  indemnify 
'.lis  sureties  in  case  of  defalcation — Harlan 
County  V.  Whitney  (Neb.)  90  N.  W.  993.  A 
contract  made  by  a  public  officer  whereby  he 
releases  a  surety  on  the  bond  of  his  deputy 
in  consideration  of  a  note  made  to  him  by  the 
surety  which  he  promises  to  repay  from  his 


3L 


PUBLIC  POLICY. 


647 


where  they  affect  election  or  appointment  to  office,*^  or  which  have  for  their  object 
unfair  dealing  in  public  property  or  rights/"  or  which  contravene  the  spirit  of  laws 


salary — Culver  v.  Caldwell  (Ala.)  34  So.  13. 
An  agreement  by  a  mill  owner  to  release  a 
railroad  for  all  damag-es  to  his  property  re- 
sulting by  flre  from  the  operation  of  the 
road,  in  consideration  of  which  the  company 
establishes  a  switch  where  none  existed, 
merely  for  the  individual  use  of  the  mill 
owner,  is  not  void  where  it  does  not  relieve 
the  company  from  its  public  duty  in  the 
operation  of  its  road — Missouri,  K.  &  T.  R.  Co. 
v.   Carter,   95   Tex.   461. 

Contracts  held  invalid. — Agreement  where- 
by the  majority  in  interest  of  the  owners  of 
a  vessel  surrender  the  control  permanently 
or  indefinitely — Smith-Green  Co.  v.  Bird,  96 
Me.  425.  Agreement  between  a  town  and  a 
town  collector  of  taxes  who  had  guaranteed 
the  town  against  loss  for  unpaid  taxes, 
whereby  the  collector  is  to  have  warrants 
continued  in  force  after  he  has  paid  the 
town,  to  enable  him  to  compel  tax  payers  to 
reimburse  him — Page  v.  Claggett,  71  N.  H. 
85.  Contract  with  the  wife  of  a  member  of 
the  board  of  trustees,  employing  her  to 
teach  in  a  school  over  which  the  board  has 
supervision.  Under  Sess.  Laws  1899,  p.  96, 
providing  that  no  trustee  shall  be  pecuniarily 
interested  in  any  contract  made  by  the  board 
of  which  he  is  a  member — Nuckols  v.  Lyle 
(Idaho)  70  Pac.  401.  Agreement  between  an 
officer  and  an  attorney  that  the  officer  should 
receive  nothing  for  the  service  of  writs  un- 
less the  actions  were  successful — (Const,  pt. 
II,  art.  70;  Pub.  St.  c.  25,  §  1,  c.  212,  §§  3,  4, 
6,  7) — Edgerly  v.  Hale,  71  N.  H.  138.  Special 
contract  between  a  town  and  its  tax  collector 
whereby  he  guarantees  the  collection  of  all 
the  taxes  for  a  certain  consideration — Page 
V.  Claggett,  71  N.  H.  85.  A  contract  for  the 
purchase  by  the  county  from  the  register  of 
deeds  of  a  set  of  abstract  books  amounting 
to  a  numerical  index  is  invalid  under  the 
statute  providing  that  officers  are  prohibited 
from  taking  any  contract  for  performing 
work  for  their  own  profit  In  and  about  the 
office  which  they  control.  Gen.  St.  1901,  §  2364 
construed  in  connection  with  section  1736 
authorizing  commissioners  to  order  the  regis- 
ter to  furnish  a  numerical  index — Sedgwick 
County  Com'rs  v.  State  (Kan.)  72  Pac.  284. 
Assignment  of  a  future  salary  of  a  public 
officer — First  Nat.  Bank  v.  State  (Neb.)  94 
N.  "W.  633.  A  contract  by  a  corporation  with 
a  public  officer,  in  respect  to  matters  with 
which  he  had  to  deal  as  a  public  officer, 
which  was  formed  shortly  after  expiration  of 
his  term,  though  he  had  rejected  an  offer 
for  the  same  contract  during  his  term  of 
office,  is  so  blended  with  his  former  rejection 
of  the  offer  as  to  constitute  a  single  trans- 
action void  and  unenforceable  as  against 
public  policy — Washington  Irr.  Co.  v.  Krutz 
(C.  C.  A.)  119  Fed.  279.  A  contract  by  a 
bank  clerk  by  which  he  was  to  receive  $50 
a  month  for  his  services  Including  notarial 
fees,  is  not  against  public  policy  on  the 
ground  that  a  contract  by  a  public  officer  to 
accept  less  than  his  legal  fees,  is  void  where 
It  appears  that  the  amount  of  salary  accepted 
was  greater  than  his  notarial  fees — Second 
Nat.  Bank  v.  Ferguson.  24  Ky.  L.  R.  1298, 
71  S.  W.  429.  An  agreement  with  a  land- 
owner whereby  a  railroad  company  agrees 
to    establish    and    maintain    a    station    at    a 


particular  point  and  no  other,  within  a  cer- 
tain distance  thereof.  Is  against  public  policy, 
and  will  not  be  enforced  in  equity  though  a 
remedy  at  law  may  be  given  one  who  has 
conveyed  valuable  property  to  the  company 
on  the  faith  of  such  agreement  without 
wrongful  intent — Beasley  v.  Texas  &  P.  Ry. 
Co.    (C.    C.    A.)    115    Fed.    952. 

69.  Agreement  between  a  majority  of  the 
members  of  a  public  board  of  officers  by 
which  the  appointments  in  their  hands  are 
to  be  divided  between  them,  each  binding 
himself  to  vote  for  the  other's  candidate — 
Sallade  v.  Schuylkill  County,  19  Pa.  Super. 
Ct.  191.  Contract  whereby  the  owner  of  a 
newspaper  agrees  to  use  Its  Influence  to  se- 
cure nomination  of  a  certain  person  for  a 
political  office — Livingston  v.  Page,  74  Vt. 
n56.  Contract  by  a  candidate  for  clerk  of 
court  to  appoint  another  as  his  deputy  if 
elected  and  to  retain  him  as  such  during  the 
full  term  of  office  at  a  stated  salary — Horst- 
man  v.  Adamson  (Mo.  App.)  74  S.  W.  398. 
Contract  contained  in  the  bond  of  a  deputy 
sheriff  which  provides  for  the  farming  out  of 
a  part  of  the  office  (Code,  c.  7,  §  5) — White 
v.  Cook,  51  W.  Va.  201.  A  contract  for  sale 
of  a  deputyship  by  a  sheriff  for  a  sum  pay- 
able at  all  events  is  void  and  unenforceable, 
but  if  it  is  sold  for  part  of  commissions  or 
for  an  allowance  made  the  jailer  by  the  coun- 
ty for  his  services,  it  is  valid  (Code  1899,  §  5, 
c.  7) — Stephenson  v.  Salisbury  (W.  Va.)  44 
S.  E.  217. 

70.  Contracts  held  valid. — An  agreement 
of  city  to  build  cross-walks  in  consideration 
of  consent  of  abutting  owners  to  building 
street  railway  is  not  invalid  as  a  purchase 
of  frontage  con.sent  for  a  consideration  ac- 
cruing to  the  exclusive  benefit  of  any  owner 
— Farson  v.  Fogg,  105  111.  App.  572.  Agree- 
ment between  a  county  board  of  supervisors 
and  an  individual  for  services  of  the  iter 
in  investigating  and  discovering  taxable 
property  which  has  been  omitted  through 
fraud  or  otherwise  from  taxation,  and  to  re- 
port such  property  to  public  officers — Shinn 
V.  Cunningham  (Iowa)  94  N.  W.  941.  Con- 
tract to  pay  commissions  to  an  agent  for 
orders  for  applies  for  government  vessels 
to  the  extent  of  one-half  the  net  profits — 
Swift  V.  Aspell  &  Co.,  40  Misc.  (N.  T.)  453. 
Contract  between  county  officers  and  another, 
giving  the  latter  a  certain  proportion  of  tax- 
es recovered  for  discovering  omitted  taxes — 
Disbrow  v.  Board  of  Sup'rs  of  Cass  County 
(Iowa)  93  N.  W.  585.  Written  subscription  In 
aid  of  a  public  Improvement  by  persons  hav- 
ing a  peculiar  and  local  Interest  therein  or 
whose  property  will  be  specially  benefited 
thereby — Hassenzahl  v.  Bevins,  24  Ohio  Circ. 
R.  173. 

Contracts  held  Invalid. — Contract  to  pro- 
cure legislative  action  to  depreciate  market 
value  of  securities  of  a  certain  corporation, 
providing  that  profits  arising  from  specula- 
tion In  such  securities  should  be  divided  be- 
tween the  parties — Veazey  v.  Allen,  173  N.  Y, 
359.  Contract  to  use  personal  influence  to  se- 
cure the  consent  of  property  holders  to  en- 
able a  council  to  authorize  construction  of  an 
elevated  railroad — Union  El.  R.  Co.  v.  Nixon, 
199  111.  235. 


648 


CONTRACTS. 


§3M 


regulating  public  morals/^  or  of  the  laws  regulating  the  sale  and  occupation  of  pub- 
lic lands,"  or  which  tend  to  defeat  the  purpose  of  a  public  judicial  sale  of  property/* 
are  void  as  against  public  polic3\  A  contract  by  public  officials  is  not  necessarily 
invalid  because  its  period  extends  beyond  the  terms  of  such  officers.''*  An  agreement 
by  a  disclosure  commissioner  to  wait  for  his  fees  until  the  defendant  has  collected 
them  is  invalid  as  a  defense.'^*  One  who  contracts  with  a  city  for  printing  need 
not  comply  with  a  provision  inserted  in  the  advertisement  requiring  the  work  to 
bear  a  union  label,  it  being  void.'^^  A  contract  for  transfer  of  a  patent  switch 
operator  containing  a  covenant  that  in  case  patentee  made  further  improvements,  he 
would  disclose  the  same  to  the  other  party  and  grant  a  like  license  was  not  void 
as  against  public  policy  if  construed  to  mean  improvements  in  switch  operating 
mechanisms  generally.''^  The  fees  allowed  by  law  to  a  sheriff  may  be  recovered  by 
him  though  he  has  made  a  void  contract  with  an  attorney  for  the  pa}Tiient  of  fees 
greater  than  those  allowed  by  law,  but  only  as  to  services  to  which  the  agreement 
did  not  apply.'' ^  An  attorney  who,  under  a  contract  in  violation  of  statute,  pays  a 
sheriff  larger  fees  than  are  allowed  by  law  may  recover  the  excess  in  assumpsit  or 
by  set  off  though  paid  imder  a  mistake  of  law.''®  Illegality  of  a  contract  between  a 
sheriff  and  his  deputy  for  farming  out  the  office  will  not  prevent  the  sheriff  from 
recovering  money  collected  by  the  deputy  on  process  since  he  received  them  in  his 
capacity  as  a  de  facto  officer  as  well  as  by  virtue  of  the  contract.*" 

(§3)     M.  Contracts  in  restraint  of  trade;  combinations  and  monopolies'^ — 


71.  Note  given  in  return  for  execution  of 
written  consent  for  the  establishing  of  a  sa- 
loon as  required  by  statute.  Written  consent 
of  adjoining  property  owners  required  by 
Acts  25th  Gen.  Assem.  c.  62,  §  17 — Greer  v. 
Severson  (Iowa)  93  N.  W.  72. 

72.  Agreement  by  a  wife,  deserted  by  her 
husband,  that  her  son  should  contest  an  en- 
try by  the  husband  of  a  timber  claim  to  pre- 
vent its  contest  by  a  stranger,  obtain  title 
in  his  own  name  and  convey  to  his  mother — 
Fleischer  v.   Fleischer,   11   N.  D.   221. 

Contracts  held  valid. — Contract  between 
an  entryman  of  public  lands  and  another  to 
sell  the  land  to  tiie  latter  made  between  final 
proof  and  receipt  of  patent  is  not  invalid  as 
an  entry  by  one  person  for  benefit  of  another 
— Doll  V.  Stewart,  30  Colo.  320,  70  Pac.  326. 
One  who  enters  public  land  under  an  agree- 
ment with  a  third  person  that  in  considera- 
tion of  advancements  of  money  to  get  the 
patent,  he  will  sell  him  timber  on  the  land, 
may  properly  so  sell  the  timber.  Under  Rev. 
St.  U.  S.  §§  2290.  2291,  2296 — Butterfield  Lum- 
ber Co.  v.  Hartman  (Miss.)  34  So.  328.  An 
agreement  whereby  a  bidder  at  a  lease  of 
public  lands  was  to  bid  on  two  tracts,  one  of 
them  for  another  who  was  present  and  who 
would  take  the  lease  If  the  bid  was  success- 
ful, was  not  necessarily  against  public  policy 
where  the  bidding  was  not  chilled  and  the 
agreement  was  known  to  the  officers  taking 
the  lease — State  v.  Follmer  (Neb.)  94  N.  W. 
103. 

73.  Contract,  the  Intent  of  which  Is  to  les- 
sen competition  at  a  foreclosure  sale — Nitro- 
Phosphate  Syndicate  v.  Johnson  (Va.)  42  S. 
E.  995.  Agreement  whereby  one  party  con- 
tracts not  to  bid  at  a  public  auction  so  as  to 
enable  the  other  to  acquire  the  property — 
Coverly  v.  Terminal  Warehouse  Co.,  70  App. 
Div.   (N.  Y.)   82. 

74.  Contract  for  convict  labor — McConnell 
V.  Arkansas  Brick  &  Mfg.  Co.,  70  Ark.  568. 


75.  Watson  V.  Fales,  97  Me.  366. 

76.  Marshall  &  Bruce  Co.  v.  Nashvifle 
(Tenn.)   71  S.  W.  815. 

77.  Squires  v.  Wason  Mfg.  Co.,  182  Mass. 
137. 

78.  Pub.  St.  c.  287,  §  32— Edgerly  v.  Hale. 
71  N.  H.   138. 

79.  Pub.  St.  c.  287,  §  32,  prohibiting  such 
fees  imposes  a  penalty  on  the  officer  only — 
Edgerly  v.  Hale,  71  N.  H.  138. 

SO.     White  V.  Cook,  51  W.  Va.  201. 

81.  See  further  Combinations  and  Monop- 
olies. 

Definition  of  trust  or  combination  in  re- 
straint of  trade — Barataria  Canning  Co.  v. 
Joulian,  80  Miss.  555;  Herpolsheimer  v.  Funke 
(Neb.)  95  N.  W.  687.  Validity  of  contract  for 
sale  of  coal  and  coke  exclusively  to  one  com- 
pany— Chesapeake  &  O.  Fuel  Co.  v.  United 
States  (C.  C.  A.)  115  Fed.  610.  Construction 
of  act  of  June  20,  1893,  Illinois,  relating  to 
control  of  trusts  and  combinations,  as  re- 
pealing act  of  1891 — People  v.  Butler  St. 
Foundry  &  Iron  Co.,  201  111.  236.  An  agree- 
ment between  dealers  that  each  will  not  sell 
to  any  one  in  debt  for  purchases  from  any  of 
the  others  until  such  debt  is  paid,  is  against 
public  policy  as  lessening  free  competition 
(Rev.  St.  1899,  §  8966) — Ferd  Helm  Brew.  Co. 
V.   Belinder.   97  Mo.  App.   64. 

[Note.] — Agreements  In  restraint  of  trade. 
An  agreement  restraining  trade  limited  as  to 
time,  place  or  persons,  is  not  necessarily  void 
— Hammon  on  Contr.  p.  449.  The  courts  of  a 
few  states  have  held  that  a  contract  not  to 
engage  in  a  particular  business  at  any  place 
within  the  state  is  Illegal  per  se,  but  the 
weight  of  modern  authority  holds  that  such 
an  agreement  is  valid  if  the  public  interests 
are  not  specially  injured,  and  the  restriction 
does  not  extend,  as  to  space  or  otherwise,  be- 
yond what  the  court  considers  reasonably 
necessary  for  protection  of  the  promisee,  re- 
gard being  had  to  the  nature  of  the  trade  or 


§  3M 


RESTRAINT   OF   TRADE. 


649 


Contracts  in  restraint  of  trade  which  apply  to  a  particular  business  and  its  territory 
have  been  upheld,*^  but  the  validity  of  such  contracts  is  dependent  upon  the  peculiar 
circumstances  of  each  case.®^  The  provisions  of  such  contracts  must  be  reasonable 
in  the  judgment  of  the  court.^*    Combination  by  contract  is  unlawful  if  its  purpose 


business — Hammon  on  Contr.  Id.  Where  the 
contract  restricts  the  industry  of  a  party 
so  as  to  deprive  the  public  of  it,  or  where  he 
is  prevented  from  pursuing  his  occupation 
so  as  to  support  himself  or  family,  the  con- 
tract is  void,  and  these  occur  where  the  con- 
tract is  g-eneral  not  to  pursue  his  trade  at  all, 
or  not  to  pursue  it  in  the  entire  country — 
Oregon  Steam  Nav.  Co.  v.  Winsor,  20  Wall. 
(U.  S.)  64;  Hammon,  on  Contr.  §  244a.  The 
question  of  the  reasonableness  of  a  contract 
in  restraint  of  trade  is  to  be  determined  bj^ 
the  court  and  depends  upon  the  circum- 
stances of  each  case,  such  as  the  nature  of 
the  agreement,  the  business  affected  by  it, 
the  situation  and  population  of  the  place 
where  the  business  is  located,  the  extent  of 
territory  covered  by  the  business,  and  other 
circumstances — Hammon  on  Contr.  p.  455,  and 
cases  there  cited. 

82.  A  provision  in  a  contract  by  which  a 
firm  agreed  to  bind  themselves  not  to  engage 
in  the  business  in  a  certain  territory,  will 
bind  partners — Raymond  v.  Yarrington 
(Tex.)    73  S.  W.  800. 

83.  Agrreenients  in  restraint  of  trade. — An 
agreement  by  a  former  employe  that  for  six 
years  after  severing  his  relations  with  his 
master  he  w^lll  not  engage  in  the  manufac- 
ture or  sale  of  any  of  the  articles  so  handled 
by  his  employer  within  the  United  States  is 
in  restraint  of  trade — Mallinckrodt  Chemical 
Works  V.  Nemnlch,  169  Mo.  388. 

Agrreenients  not  in  restraint  of  trade. — 
Agreement  by  one  dealing  in  building  ma- 
terials on  a  sale  of  his  business,  to  buy  from 
the  other  parties  and  no  one  else,  certain  ma- 
terials during  five  years — Trentman  v.  Wah- 
renburg.  30  Ind.  App.  304.  Where  the  owners 
of  a  building,  who  were  conducting  a  depart- 
ment store,  leased  a  portion  to  a  firm  en- 
gaged in  a  certain  kind  of  business  and  cov- 
enanted not  to  sell  articles  of  the  same  char- 
acter as  the  latter  firm  during  the  lease,  the 
agreement  w^as  not  in  general  restraint  of 
trade  but  merely  prohibited  the  lessors  from 
competing  with  the  lessees  in  the  same  build- 
ing and  was  valid — Herpolsheimer  v.  Funke 
(Neb.)   95  N.  W.  687. 

84.  Hoops  Tea  Co.  v.  Dorsey,  99  111.  App. 
181. 

Reasonableness  as  shown  In  particular 
cases. — An  agreement  by  contractors  selling 
their  business  and  good  will  in  building  pub- 
lic buildings,  not  to  bid  on  public  works  In  a 
certain  county  for  five  years,  is  not  in  re- 
straint of  trade — Trentman  v.  Wahrenburg, 
30  Ind.  App.  304.  An  agreement  providing 
that  one  party  shall  not  engage  in  a  competi- 
tive business  for  a  time  of  reasonable  length 
and  within  a  limited  area  no  larger  than  is 
reasonably  necessary  for  the  protection  of 
the  other,  is  not  invalid  as  In  restraint  of 
trade — Herpolsheimer  v.  Funke  (Neb.)  95  N. 
W.  687.  A  provision  in  a  contract  of  sale  of 
a  business  that  the  seller  will  not  engage  In 
a  like  business  In  any  territory  from  which 
he  secures  his  patronage,  so  as  to  compete 
with  the  buyer,  is  void  as  indefinite  with  re- 
gard to  territory — Shute  v.  Heath.  131  N.  C. 


281.  An  agreement  by  one  dealing  In  build- 
ing materials,  on  a  sale  of  his  business,  not  to 
engage  in  that  business  for  five  years  in  a 
certain  county.  Is  not  so  unreasonable  as  to 
time  and  place  of  restriction  as  to  be  void — 
Trentman  v.  Wahrenburg,  30  Ind.  App.  304. 
A  covenant  by  an  employe  in  consideration 
of  his  employment  for  a  stated  term  that  he 
will  not  during  such  time  engage  in  business 
in  competition  with  his  employer  any  where 
within  1.500  miles  of  the  latter's  place  of 
business  is  not  void  as  against  public  policy 
and  in  restraint  of  trade,  where  the  em- 
ployer's business  is  the  manufacture  and  sale 
of  goods  within  the  greater  part  of  the  terri- 
tory covered  by  the  covenant  and  where  such 
manufacture  involves  secreting  processes 
which  must  of  necessity  be  communicated  to 
the  employe — Harrison  v.  Glucose  Sugar  Re- 
fining Co.  (C.  C.  A.)  116  Fed.  304.  Where  a 
husband  and  wife  sold  certain  shares  owned 
by  her  in  a  corporation,  and  certain  land 
owned  by  both  of  them  which  was  then  used 
by  the  corporation  in  business,  and  agreed 
as  to  part  of  the  contract  that  they  w^ould 
not  engage  in  the  same  business  in  that  vil- 
lage as  long  as  the  corporation  continued  in 
such  business  there,  the  contract  was  not 
void  as  in  restraint  of  trade  by  interference 
with  the  interests  of  the  public — Kronsch- 
nabel-Smith  Co.  v.  Kronschnabel,  87  Minn. 
230.  Where  a  contract  with  the  employe  of 
a  corporation  on  leaving  its  service  provided 
that  in  consideration  of  a  certain  amount  of 
money  he  surrendered  his  interest  in  stock 
of  a  corporation  and  his  right  to  purchase 
stock  under  his  contract  of  employment,  and 
agreed  that  for  a  certain  period,  he  would 
not  engage  In  a  competing  business  nor  dis- 
close the  secret  process  used  by  the  corpora- 
tion in  its  business,  it  was  not  valid  as  in  re- 
straint of  competition,  since  It  was  for  the 
protection  of  the  value  of  stock,  his  equita- 
ble title  to  which  he  had  transferred  to  the 
corporation — S.  Jarvis  Adams  Co.  v.  Knapp 
(C.  C.  A.)  121  Fed.  34.  The  restrictive  cove- 
nant in  a  contract  made  by  a  party  not  under 
disability,  unlimited  in  time  and  covering  the 
whole  United  States  Is  subsidiary  to  the 
main  contract,  being  consideration  of  pay- 
ment for  the  sale  of  good  will  and  is  reason- 
able, where  it  is  no  broader  than  is  necessary 
to  save  the  rights  and  privileges  to  the  pur- 
chaser for  which  he  has  paid — National  En- 
ameling &  Stamping  Co.  v.  Haberman,  120 
Fed.  415.  A  contract  of  sale  containing  a 
condition  that  the  sellers  would  not  engage 
or  become  Interested  in  catching  or  manu- 
facturing products  from  certain  fish  along 
the  Atlantic  coast  In  competition  with  the 
purchaser  for  the  period  of  20  years  Is  not 
oppressive  and  unreasonable  so  as  to  be  void 
in  restraint  of  trade — Fisheries  Co.  v.  Lennen, 
116  Fed.  217.  A  written  contract  for  dissolu- 
tion of  a  partnership  of  physicians  by  which 
one  agrees  not  to  practice  medicine  in  a  cer- 
tain vicinity  is  void  under  the  statute.  Un- 
der Wilson's  Rev.  &  Ann.  St.  1903,  §  820.  be- 
cause not  limited  as  to  time  during  which 
the  party  must  refrain  from  carrying  on 
business— Hulen  v.  Earel   (Okl.)   73  Pac.   927. 


650 


CONTRACTS. 


§  3M 


and  effect  necessarily  restrain  interstate  trade,^'  or  if  intended  to  restrict  production 
and  prevent  competition  in  trade,  the  invalidity  depending  on  the  peculiar  circum- 
stances of  each  case;^®  however,  contracts  relating  to  prices  or  exclusive  sale  of 
patented  articles  do  not  come  within  the  rule.^^  The  validity  of  a  combination 
between  retail  dealers  to  prevent  sales  by  wholesalers  to  person  not  belonging  to  the 
combination  does  not  depend  upon  the  number  of  members  in  proportion  in  the  com- 
bination, or  their  number  in  proportion  to  the  whole  number  of  dealers  in  the  trade.^* 
Mere  disadvantage  of  others  not  amounting  to  discrimination  will  not  warrant 
interference  with  business  on  the  ground  of  monopoly,®*  A  contract  or  the  grant  of 
a  franchise,  made  by  a  municipality,  which  tends  to  restrain  trade  and  create  a 
monopoly,  is  void.'"  A  dealer  injured  by  unlawful  combination  between  retail  lum- 
ber dealers  to  prevent  sale  of  lumber  by  wholesalers  to  retailers  not  members  of  the 
association  may  bring  an  action  under  the  statute  against  a  member  or  members 
of  the  association  personally,  for  damages.®^ 


S3.  Under  the  anti-trust  Act  of  1890 — 
Glbbs  V.  McNeeley  (C.  C.  A.)  118  Fed.  120; 
United  States  v.  Northern  Securities  Co.,  120 
Fed.  721.  An  agreement  between  manufac- 
turers of  a  certain  commodity  in  one  state 
which  Is  an  article  of  commerce  in  other 
states  to  reduce  production  and  raise  the 
price  by  destroying  competition  is  in  re- 
straint of  interstate  commerce.  (Anti-trust 
law  of  1890) — Gibbs  v.  McNeeley  (C.  C.  A.) 
118  Fed.  120.  60  L.  R.  A.  152.  A  combination 
to  restrict  competition  between  the  members 
as  individuals  and  outside  competitors  can- 
not be  defended  merely  because  no  injury 
has  resulted  to  the  public  or  because  the  com- 
bination is  thereby  enabled  to  extend  its  field 
of  operation;  the  effect  of  the  contract  under 
the  anti-trust  law  as  restraining  interstate 
commerce  is  the  only  criterion — Chesapeake 
&  O.  Fuel  Co.  V.  United  States  (C.  C.  A.)  115 
Fed.    610. 

8C.  Particular  contracts. — A  sale  of  a  pat- 
ent by  a  corporation  to  another  stipulating 
that  the  machinery  for  its  manufacture 
should  remain  in  the  seller's  building  and 
that  it  should  furnish  power  for  the  manu- 
facture, is  not  void  as  in  restraint  of  trade. 
no  element  of  combination  appearing — Pungs 
V.  American  Brake-Beam  Co.,  200  111.  306. 
An  agreement  between  firms,  sometimes  com- 
peting with  each  other  in  buying  grain,  that 
all  purchases  at  a  certain  place  shall  be  on 
joint  account  is  not  Illegal  as  In  restraint  of 
trade  (Code.  §  5060) — Willson  v.  Morse,  117 
Iowa,  5S1.  Where  the  price  of  compressing 
cotton  in  the  state  is  regulated  by  the  rail- 
road commission  and  the  cotton  is  required 
to  be  compressed  at  the  nearest  point,  the 
purchase  of  six  compresses  by  one  company 
on  the  same  day  cannot  be  held  invalid  as  a 
combination  to  restrict  competition — State  v. 
Shippers'  Compress  &  Warehouse  Co.,  95  Tex. 
603.  Cove  oysters  are  a  "commodity"  within 
the  Mississippi  statute  against  a  combina- 
tion to  limit,  increase  or  reduce  the  price  of 
a  commodity — Barataria  Canning  Co.  v.  Jou- 
llan,  80  Miss.  555.  An  agreement  between 
the  manufacturers  of  patent  medicines  and 
the  wholesale  dealers  for  the  maintenance  of 
prices  established  by  the  manufacturers.  Is 
not  void  as  in  restraint  of  trade  though  it 
destroyed  competition  as  to  prices,  where  it 
places  no  restriction  as  to  the  quantity  to  be 
sold  or  the  territory  for  the  transaction  of 
business — Park  v.  National  Wholesale  Drug- 
gists'   Ass'n,     175    N.     Y.     1.     An    agreement 


whereby  dealers  and  manufacturers  agreed 
with  a  plumbers'  association  to  sell  supplies 
to  none  but  members,  the  latter  to  boycott 
dealers  found  selling  to  plumbers  without  the 
association,  is  unlawful — 'U'alsh  v.  Associa- 
tion of  Master  Plumbers,  97  Mo.  App.   280. 

87.  Conditions  to  keep  up  a  monopoly  or 
fix  prices  imposed  in  a  license  by  a  patente"^ 
are  not  a  violation  of  the  Federal  law  against 
monopolies  or  restraint  of  trade — Bement  v. 
National  Harrow  Co.,  186  U.  S.  70.  A  con- 
tract by  w^hich  the  owner  of  certain  patents 
gives  to  another  an  exclusive  right  to  lease 
instruments  at  certain  rates  within  a  certain 
territory,  property  in  the  instrument  to  re- 
main in  the  owner,  is  not  a  violation  of  pub- 
lic policy  as  restraining  freedom  of  sale  and 
transfer  of  patented  article — Whitson  v.  Co- 
lumbia Phonograph  Co.,  18  App.  D.  C.  565. 
An  agreement  w^hereby  a  druggist  purchased 
g'oods  from  a  proprietor  of  a  patent  medicine 
providing  that  he  will  maintain  the  prices 
rtxed  by  the  manufacturer,  is  valid  so  that 
damages  may  be  recovered  for  its  breach — 
Park  V.  National  Wholesale  Druggists'  Ass'n, 
175  N.  T.  1. 

88.  Comp.  St.  1901,  c.  91  a,  5  1 — Cleland  v. 
Anderson  (Neb.)  92  N.  W.  306.  Compare, 
Park  V.  National  Wholesale  Druggists'  Ass'n, 
175  N.  Y.  1. 

89.  State  V.  New  Orleans  Warehouse  Co., 
109  La,  64. 

90.  "Validity  of  particular  grrants  or  con- 
tracts.— A  contract  with  a  company  for  light- 
ing a  town  and  furnishing  light  to  inhabit- 
ants for  a  period  of  ten  years  is  not  void  as 
creating  a  monopoly — Denver  v.  Hubbard 
(Colo.  App.)  68  Pac.  993.  A  grant  of  the  sole 
right  to  collect  ashes  and  other  harmless  sub- 
stances from  private  premises  in  a  city  in- 
vades the  personal  rights  of  citizens  and  is  In 
restraint  of  trade  as  creating  a  monopoly. 
The  articles  are  not  in  themselves  nuisances 
though  they  would  become  such  if  allowed  to 
accumulate — Her  v.  Ross  (Neb.)  90  N.  W.  869. 
The  power  of  the  Alabama  legislature  to  re- 
voke a  franchise  containing  exclusive  fea- 
tures as  to  water  supply  for  a  city  is  not  lim- 
ited by  the  constitution  to  revocations  that 
will  w^ork  no  harm  to  the  corporators 
(Const,  art.  1,  §  23,  and  art.  14,  §  10,  construed 
together) — BienviDe  Water  Supply  Co.  v.  Mo- 
bile,   186  U.   S.   212. 

91.  Comp.  St.  1901,  c.  91a,  §  11 — Cleland  v. 
Anderson  (Neb.)  92  N.  W.  306. 


§  3N 


EFFECT  OF  INVALIDITY. 


651 


(§3)  N.  Effect  of  invalidity  of  contract. — The  rights  of  parties  in  the  sub- 
ject matter  of  a  contract  void  as  against  public  polic^^  may,  nevertheless,  be  enforced 
when  they  do  not  depend  on  the  contract  itself."^  The  law  will  not  interfere  to  aid 
either  of  the  parties  to  an  unlawful  contract,®^  nor  will  equity  intervene,®*  but  equity 
will  not  refuse  aid  to  a  party  to  an  illegal  transaction  if  he  does  not  require  the  aid  of 
the  illegal  transaction  to  establish  his  right. ®^  The  breach  of  a  contract  will  not  be 
ground  for  recovery  of  damages  for  loss,  where  the  contract  is  invalid  under  the 
statute.^"  An  illegal  contract  will  not  prevent  enforcement  of  taxes.®^  An  officer 
may  collect  salary  for  his  services  though  appointed  under  an  illegal  contract  if  he 
was  in  no  way  connected  therewith. ^'^  In  a  suit  on  notes  given  in  pursuance  of  a 
contract,  the  maker  may  plead  that  the  contract  was  void  as  against  public  policy.'' 
That  a  contract  for  a  lease  of  realty  was  in  violation  of  law,  will  not  prevent  the 
landlord  from  recovering  possession  after  expiration  of  the  term.^  A  wife  cannot 
recover  money  paid  by  her  husband  in  an  attempt  to  conceal  his  fraud  in  regard  to 
lands  while  acting  as  attorney  for  the  owners.^  That  one  is  a  member  of  a  com- 
bination which  violates  anti-trust  law  of  1890,  will  not  prevent  his  obtaining  an 
injunction  against  third  persons  who  attempt  infringement  of  a  patent  which  he 
owms.' 

Separable  and  inseparable  contracts. — The  presence  of  harsh  provisions  in  a 
contract,  unenforceable  in  equity  is  no  defense  in  a  suit  to  enforce  valid  provisions 
thereof.*  A  contract  partly  invalid  and  separable  so  as  to  be  enforceable  as  to  the 
valid  portion,  must  be  enforced  as  to  both  parties  in  so  far  as  it  is  valid."  A  con- 
tract is  void  in  toto  if  it  is  void  in  part  and  not  severable;^  hence  a  valid  contract 


93.  Card  v.  Moore.  173  N.  Y.  598. 

03.  Bass  V.  Smith  (Okl.)  71  Pac.  628.  Es- 
pecially where  both  parties  had  knowledge 
of  the  illeg-ality — '^''heeler  v.  Mutual  Reserve 
Fund  Life  Assn,  102  111.  App.  48.  Recovery 
of  money  invested  in  a  bet  on  a  foot  race — 
.Snyder  v.  Nelson,  101  111.  App.  619.  Recovery 
by  sheriff  under  contract  witli  attorney  for 
higher  fees  than  allowed  by  \?iw  cannot  be 
had,  nor  can  the  attorney  recover  back  fees 
paid — Edgerly  v.  Hale,  71  N.  H.  138.  Where 
one  of  several  parties  engaged  in  maintain- 
ing an  illegal  lottery  received  money  to 
further  its  purpose  by  bribing  officers,  and 
converted  it  to  his  own  use,  no  recovery  can 
be  had  by  the  other  parties — Smith  v.  Rich- 
mond, 24  Ky.  L.  R.  1117,  70  S.  W.  846. 

94.  Contract  by  one  procuring  settlers  for 
public  lands  in  violation  of  Organic  Act,  §  24 
—Bass  V.  Smith  (Okl.)   71  Pac.  628. 

95.  A  wife  who  had  conveyed  lands  to  an- 
other to  enable  her  husband  to  leave  the  state 
to  escape  prosecution  for  a  felony  may  have 
a  conveyance  of  the  land  by  her  grantee  to 
a  third  person  set  aside  in  order  to  subject 
the  land  to  her  judgment  recovered  on  notes 
given  for  the  purchase  price — Robson  v. 
Hamilton,  41  Or.  239,  69  Pac.  651. 

96.  Contract  for  sale  of  family  homestead 
invalid  because  not  signed  by  wife  (Comp. 
St.  c.  36,  §  4) — Meek  v.  Lange  (Neb.)  91  N.  W. 
695. 

97.  Contract  between  a  town  and  collector 
of  taxes  extending  the  life  of  warrants  in 
consideration  of  his  guaranty  of  all  taxes  to 
be  collected  so  as  to  enable  him  to  compel 
taxpayers  to  reimburse  him,  will  not  avail  a 
property  owner  who  has  not  paid  his  taxes  so 
as  to  prevent  his  arrest  by  the  collector  for 
delinquency — Page  v.  Claggett.  71  N.  H.  85. 

98.  Sallade  v.  Schuylkill  Company,  19  Pa. 
Super.  Ct.  191. 


99.  John  T.  Hardie's  Sons  &  Co.  v.  Scheen 
(La.)    34   So.   707. 

1.  Sittel  V.  Wright  (C.  C.  A.)   122  Fed.  434. 

2.  Hamblet  v.  Harrison,  80  Miss.  118. 

3.  General  Elec.  Co.  v.  Wise,  119  Fed.  922. 

4.  Michigan  Cent.  R.  Co.  v.  Chicago,  K.  & 
3.  Ry.  Co.   (Mich.)   93  N.  W.  882. 

5.  Edwards  v.  Michigan  Tontine  Inv.  Co. 
(Mich.)  92  N.  W.  491.  Contract  for  manage- 
ment of  a  ranch  and  for  its  sale  in  violation 
of  the  insolvency  laws — McVicker  v.  McKen- 
zie,  136  Cal.  656,  69  Pac.  495.  Tontine  pro- 
visions in  a  life  insurance  policy  because 
contravening  statute,  will  not  avoid  the 
whole  policy — Wheeler  v.  Mutual  Reserve 
Fund  Life  Ass'n,  102  111.  App.  48.  An  illegal 
contract  between  a  sheriff  and  his  deputy  for 
farming  out  the  office,  being  separable  as  to 
the  authority  to  manage  the  office  and  to  re- 
ceive public  funds,  will  not  prevent  the  sheriff 
from  recovering  money  collected  by  the  depu- 
ty on  process — White  v.  Cook,  51  W.  Va.  201. 
Contract  for  sale  and  management  of  ranch 
invalid  as  to  the  sale  but  enforceable  as  to 
the  management;  the  agent  must  be  allowed 
to  recover  for  his  services  in  management  as 
well  as  required  to  account  to  the  ow.-ner  for 
money  received — McVicker  v.  McKenzie,  136 
Cal.  656,  69  Pac.  495.  Stipulations  that  pur- 
chasers of  a  business  of  selling  building  ma- 
terials will  refrain  from  bidding  on  public 
works  in  a  certain  county  for  five  years,  and 
that  the  sellers  will  buy  materials  from  the 
buyers  for  buildings  during  that  period  alone, 
may  be  separated  so  that  the  invalidity  of 
one  will  not  affect  the  other — Trentman  v. 
Wahrenburg.  30  Ind.  App.  304. 

6.  Pardridge  v.  Cutler,  104  111.  App.  89. 
Conveyance  of  interest  in  firm  together  with 
a  homestead  entry  which  was  void  because 
final  proof  had  never  been  made — Horseman 
V.  Horseman  (Or.)  72  Pac.  698. 


652 


CONTRACTS, 


§  4A 


joined  with  one  void  because  of  public  policy  is  unenforceable  where  it  is  not  sepa- 
rable therefrom..'^ 

§  4.  Interpretation  of  contracts.^  A.  General  rules  of  interpretation.^ — 
The  intention  of  the  parties  is  to  be  determined  in  construing  a  contract,  not  from 
the  facts  as  they  existed,  but  as  the  parties  supposed  them  to  be.^°  The  court  will 
attempt  to  place  itself  in  the  position  of  the  contracting  parties  so  that  it  may  view 
the  subject-matter  as  they  viewed  it.^^  Previous  understandings  or  agreements  be- 
tween the  parties  must  not  be  considered  to  determine  their  intention,  but  it  must 
be  obtained  from  the  instrument  itself,^^  but  circumstances  attending  the  execution 
of  the  contract  may  be  considered,^^  and  the  interpretation  given  by  the  acts  of 
parties  is  entitled  to  great  weight  in  determining  their  intention,^*  especially  where 
the  instrument  itself  is  lost.^''  Where  there  are  several  stipulations,  the  intention 
of  the  parties  must  be  determined  from  the  entire  agreement.^®  Conditions  not 
expressed  in  a  written  contract  cannot  be  introduced  by  inference.*'  A  contract 
will  be  construed  and  enforced  according  to  the  law  in  force  when  it  was  made.** 
A  debt  created  by  a  contract  must  be  deemed  to  have  been  created  on  the  day  when 
the  contract  was  made.**  A  contract  will  be  so  construed,  if  possible,  as  to  pro- 
mote benefits  and  prevent  delay  and  idleness  of  property.^"  A  contract  uncertain 
in  terms  will  be  construed,  if  at  all,  most  strongly  against  the  party  who  caused  the 
uncertainty  to  exist.^*     The  law  does  not  favor  forfeitures  and  a  provision  in  a 


7.  Sedgwick      County      Com'rs      v.      State 
(Kan.)    72    Pac.    284. 

8.  Construction   of  partlcnlar   contracts. — 

Contract  between  prospective  lessees  of 
property,  requiring-  one  party  to  pay  to 
the  other  annual  payments  during  its  oc- 
cupation of  the  property — Stitt  v.  Rector, 
70  Ark.  613.  69  S.  W.  552.  Agreement  by 
debtor  to  waive  limitations  on  debt — Pollak 
V.  Billing.  131  Ala.  519.  Contract  for  con- 
veyance of  mining  rights — Sharp  v.  Behr, 
117  Fed.  864.  Installment  contract  for  erec- 
tion of  building  as  to  rights  of  owner  to 
plead  defects  as  defense  in  action  to  recov- 
er the  last  payment  though  certificates  had 
been  given  by  the  architects — Blanchard  v. 
Sonnefield  (C.  C.  A.)  IIC  Fed.  257.  Contract 
for  railroad  right  of  way — Pontiac.  O.  &  N. 
R.  Co.  v.  Reed  (Mich.)  90  N.  W.  658.  Con- 
tract as  to  irrigation  rijrhts — Mabee  v.  Platte 
Land  Co.  (Colo.  App.)  68  Pac.  1058;  Paterson  v. 
Numberg  (Colo.  App.)  68  Pac.  134.  For  lease 
of  water  rights  to  particular  lands — Bible 
V.  Centre  Hall  Borough,  19  Pa.  Super.  Ct.  136. 
Contracts  with  cities  for  public  improve- 
ments— Gartner  v.  Detroit  (Mich.)  90  N.  W. 
690;  Piedmont  Pav.  Co.  v.  Allman,  136  Cal.  88. 
68  Pac.  493.  See.  also.  Public  Works  and 
Improvements;  Public  Contracts;  Municipal 
Corporations.  Contracts  with  the  United 
States — Venable  Const.  Co.  v.  United  States. 
114  Fed.  763;  United  States  v.  Barlow,  184 
U.  S.  123;  Monroe  v.  United  States.  184  U.  S. 
524.  Contract  whereby  land  should  be  deed- 
ed to  persons  who  hold  it  in  trust,  and 
divide  In  city  lots  and  sell  It  for  not  less 
than  a  certain  price,  as  to  rights  to  reim- 
bursement and  lien  on  the  share  of  the 
other  party  in  the  land  for  its  enforce- 
ment— Griggs  v.  Gower,  29  M'^ash.  86.  69  Pac. 
745.  Contract  for  surrender  of  mortgage  to 
third  persons  on  payment  of  a  certain  debt 
to  the  holder  owing  from  the  mortgagee — 
Von  Arnim  v.  Moore,  82  App.  Div.  (N.  T.) 
271.  Contract  between  railroad  companies 
for  use   of  bridge   belonging   to    independent 


corporation — Pittsburg,  C,  C.  &  St.  L..  R. 
Co.  V.  Dodd.  24  Ky.  L.  R.  2057,  72  S.  W.  822. 
Contract  by  one  to  build  house  on  land  of 
another  at  cost  after  which  the  premises 
were  to  be  sold  and  net  profits  divided 
equally  between  the  parties — Davis  v.  Kel- 
lar,  25  Ky.  L.  R.  279,  74  S.  W.  1100.  Con- 
tract between  a  brewing  company  and  an 
individual  for  the  sale  of  a  saloon  with  pro- 
visions requiring  exclusive  purchase  of  beer 
manufactured  by  the  brewing  company — Ma- 
loney  v.  Iroquois  Brew.  Co.,  173  N.  Y.  303. 
Contract  for  consolidation  of  corporation — 
Parks  V.  Gates.   84  App.   Div.    (N.   Y.)    534. 

9.  Construction  of  mining  lease  as  giv- 
ing by  implication  the  right  to  build  a 
switch  track  to  mines — Ingle  v.  Bottoms 
(Ind.)    66  N.  E.  160. 

10.  Parrish  v.  Rosebud  Min.  &  Mill.  Co. 
(Cal.)    71  Pac.    694. 

11.  O.  H.  Jewell  Filter  Co.  v.  Kirk,  200 
111.   382. 

12.  Pierpont  v.  Lanphere,  104  111.  App. 
232. 

13.  Pietrl  v.  Seguenot.   96  Mo.  App.   258. 

14.  Lewiston  &  A.  R.  Co.  v.  Grand  Trunk 
Ry.   Co..    97   Me.    261. 

!.•;.  Humphreys  v.  Ft.  Smith  Traction, 
r.ight  &  Power  Co.   (Ark.)    71  S.  W.   662. 

16.  Pressed  Steel  Car  Co.  v.  Eastern  Ry. 
Co.    (C.    C.    A.)    121   Fed.    609. 

17.  Forfeitures  not  Included  In  oil  lease 
— Core  V.  New  York  Petroleum  Co.,  52  W. 
Va.    276. 

18.  Kendall    v.    Fader,    199   111.    294. 

19.  "Wabash   R.   Co.  v.   People,   202  111.   9. 

20.  Oil  lease — Parish  Fork  Oil  Co.  v. 
Bridgewater  Gas   Co..   51   W.   Va.    583. 

21.  Keith  v.  Electrical  Engineering  Co., 
136  Cal.  178.  68  Pac.  598;  Kohlsaat  v.  Illi- 
nois Trust  &  Sav.  Bank.  102  111.  App.  110. 
Deeds  are  construed  most  favorably  to  the 
grantee — Chicago  &  A.  R.  Co.  v.  Hogan,  105 
111.  App.  136.  Contracts  limiting  the  liabil- 
ity of  carriers,  though  construed  strictly 
against  the  carriers,  are  construed  generally 


§   4C 


INTERPRETATION. 


653 


contract  to  prevent  forfeiture  will  be  upheld  if  possible,'^  but  the  court  cannot  ex- 
ceed a  fair  construction  of  the  language  used.^^ 

(§4)  B.  What  constitutes  part  of  the  contract. — If  a  statute  requires  that  cer- 
tain conditions  must  be  inserted  in  a  contract  made  by  a  city  they  are  by  force  thereol' 
inserted  in  the  contract,  but  if  such  statute  proves  to  be  unconstitutional,  such  con- 
ditions do  not  bind  the  parties.^*  The  presence  of  internal  revenue  stamps  on  a 
written  contract  will  not  prevent  the  printing  beneath  them  from  being  treated  as 
a  part  of  the  writing. ^^  Marginal  figures  on  a  negotiable  note  are  generally  held 
not  a  part  thereof.^®  Acceptance  of  an  offer  to  contract  under  certain  written  terms 
will  constitute  them  a  part  of  the  contract.^^  Where  one  of  the  parties  had  a  copy 
of  a  written  contract  with  a  writing  attached  concerning  portions  thereof  and  knew 
of  the  construction  of  certain  improvements  under  such  writing,  his  possession  and 
acceptance  of  the  whole,  when  completed,  amounted  to  a  recognition  that  the  writ- 
ing constituted  part  of  the  contract. ^^  Appended  writings  explaining  the  contract,^® 
or  terms  of  a  contract  on  which  a  subcontract  depends,^"  constitute  a  part  of  the 
contract,  but  otherwise  as  to  an  indorsement  on  a  written  contract  in  terms  differ- 
ent from  those  in  the  body  of  the  instrument.^^  Eepresentations  made  by  one  of 
the  parties  to  a  contract,  but  not  embodied  therein,  cannot  be  considered  a  part 
thereof.*^  Only  such  unexpressed  conditions  as  are  necessarily  implied  will  be 
treated  as  a  part  of  the  contract.^-^ 

(§  4)     C.  Character  of  contract;  joint  or  several;  promise  or  receipt.^* — A  con- 


by    the    same    rules   as    other    contracts — Ad- 
ams Exp.  Co.  V.  Carnahan,   29   Ind.  App.    612. 

22.  Equitable  Loan  &  Security  Co.  v.  War- 
ing- (Ga.)  44  S.  E.  320.  Forfeiture  for  de- 
lay— King  V.  United  States,  37  Ct.  CI.  428. 
Where  a  prospective  passenger  on  a  steam- 
boat failed  to  notice  a  condition  on  the 
back  of  his  ticket  reserving  the  right  to 
the  carrier  to  re-sell  rooms  not  called  for 
within  30  minutes  after  departure,  thereby 
failing  to  secure  his  room,  he  was  entitled 
either  to  the  use  of  the  room  or  to  have 
his  money  refunded — Clark  v.  New  York, 
N.  H.  &  H.  R.  Co.,  40  Misc.  (N.  Y.)  691. 
A  provision  in  a  building  contract  that  the 
owner  may,  in  case  of  default  by  the  con- 
tractor, proceed  to  finish  the  building  on 
his  own  account,  using  materials  brought 
to  the  place  by  the  contractor  for  that  pur- 
pose, is  not  a  forfeiture  of  the  contract, 
but  is  to  be  fairly  construed  as  In  the  in- 
terest of  both  parties — Duplan  Silk  Co.  v. 
Spencer  (C.  C.  A.)  115  Fed.  689.  And  the 
contractor  is  entitled  to  any  balance  of  the 
contract  price  remaining  after  deduction  of 
the  costs  of  such  completion — White  v.  Liv- 
ingston,   69   App.   Div.    (N.   Y.)    361. 

23.  Behling  v.  Northwestern  Nat.  Life  Ins. 
Co.    (Wis.)    93   N.   W.    800. 

24.  Cleveland  v.  Clements  Bros.  Const. 
Co.,    67   Ohio   St.   197,   59   L.    R.   A.   775. 

2.'>.  Sloman  v.  National  Exp.  Co.  (Mich.) 
95    N.    W.    999. 

26.  Sexton   v.    Barrle.    102   111.    App.    586. 

27.  Utah  Lumber  Co.  v.  James,  25  Utah, 
434,   71   Pac.   986. 

28.  General  Fire  Extinguisher  Co.  v. 
Mooresville    Cotton    Mills    (N.    C.)     43    S.    E. 

942. 

29.  Where  the  last  clause  of  a  contract 
which  set  a  particular  price  for  work,  pro- 
posed that  any  extra  work  not  Included  in 
the  specifications  should  be  supplied  by  the 
owner,    or    if    by    the    contractor,    at    certain 


prices,  a  writing  appended  to  the  contract 
specifying  what  constituted  such  extra  work 
and  the  prices  for  its  construction  was  a 
part  of  the  contract,  and  when  such  extra 
work  was  completed  by  the  contractor,  he 
was  entitled  to  recover  the  extra  compensa- 
tion at  the  rates  therein  prescribed — Gen- 
eral Fire  Extinguisher  Co.  v.  Mooresville 
Cotton   Mills    (N.   C.)    43   S.    E.    942. 

30.  Woarms  v.  Becker,  84  App.  Div.  (N. 
Y.)    491. 

31.  Insurance  contract — Bushnell  v.  Farm- 
ers'  Mut.   Ins.   Co.,   91   Mo.  App.    523. 

32.  Representations  as  to  the  cost  of  man- 
ufacture of  a  machine  for  w^hich  a  con- 
tract was  made  to  organize  a  corporation 
— Macklem   v.   Fales    (Mich.)    89   N.   W.    581. 

33.  Where  a  contract  does  not  in  express 
terms  require  that  one  of  the  parties  should 
perform  certain  conditions  without  value, 
an  agreement  for  such  performance  will  not 
be  implied — Arthur  v.  Baron  De  Hirsch 
Fund  (C.  C.  A.)  121  Fed!  791.  In  a  contract 
to  construct  a  ditch  for  a  drainage  district 
it  is  an  implied  condition  that  the  district 
will  furnish  the  right  of  way — Rood  v.  Clay- 
pool  Drainage  &  Levee  Dist.  (C.  C.  A.)  120 
Fed.  207.  A  contract  of  suretyship  will  not 
be  extended  by  implication  but  will  be  sub- 
ject to  the  same  rules  of  construction  as 
other  contracts — Ewen  v.  Wilbor,  99  111. 
App.  132.  Where  a  contract  for  building 
an  annex  to  an  old  schoolhouse  contained 
provisions  showing  that  the  construction  of 
the  annex  was  dependent  on  the  continued 
existence  of  the  old  building,  there  was  an 
implied  condition  that  destruction  of  the  old 
building  before  completion  of  the  contract 
should  terminate  It— Krause  v.  Board  of 
School    Trustees    (Ind.    App.)    66    N.    E.    1010. 

34.  Whether  a  contract  is  of  sale  or  bail- 
ment will  be  discussed  in  Sales;  Bailments; 
and  like  titles. 


654 


CONTRACTS. 


§4C 


tract  requiring  a  dealer  to  furnish  material  according  to  the  builder's  plans  and  speci- 
fications did  not  amount  to  a  mere  sale  on  inspection,  but  was  a  building  contract 
requiring  the  material  to  conform  to  such  plans  and  specifications.^*     An  instru- 
ment acknowledging  receipt  of  certain  moneys  to  be  repaid  to  a  certain  person  or 
order  within  a  certain  time,  whenever  business  will  permit,  at  a  certain  rate  of  in- 
terest, is  not  a  mere  receipt,  but  a  promise  under  seal  for  payment  of  money  accord- 
ing to  its  terms.^®     A  contract  for  drilling  a  well  simply  requires  that  the  work  be 
done  with  ordinary  skill  and  in  a  workmanlike  manner,  and  there  is  no  implied 
warranty  that  water  will  be  obtained  or  that  the  well  will  be  a  success  either  as  to 
quantity  or  quality  of  water.^^     A  contract  cannot  be  so  construed  as  to  give  the 
parties  the  right  to  sue  thereon  both  jointly  and  separately  without  express  author- 
ity, nor  can  it  be  treated  as  joint  or  several  at  the  choice  of  the  promisecs.^^     If 
two  or  more  persons  undertake  an  obligation,  the  undertaking  is  presumptively 
joint  at  common  law,  and  the  presumption  must  be  overcome  by  words  of  sever- 
ance.^'    If  a  promise  is  implied  by  law  and  the  consideration  therefor  comes  from 
several  persons  jointly,  the  promise  will  be  joint  as  to  them.*"     A  note  given  by 
two  persons  to  obtain  money  for  one  of  them  is  joint  as  well  as  several.*^     A  con- 
tract for  the  purchase  of  property  by  several  persons,  each  to  pay  so  much  for  a 
share  therein,  in  cash  or  in  deferred  pa^onents,  "secured  by  joint  and  several  notes 
with  interest,"  is  a  several  and  not  a  joint  contract,  binding  each  to  pay  the  sepa- 
rate pavments  and  not  the  entire  price.*^     Wliere  a  number  of  corporations  engaged 
in  business  separately,  signed  a  contract  to  furnish  contractors  with  materials, 
which  contained  nothing  by  which  an  action  could  be  maintained  against  any  one 
for  breach  thereof,  there  was  a  joint  contract  of  the  corporations.*^     The  character 
of  a  contract  as  entire  or  divisible  depends  on  the  intention  of  the  parties  as  shown 
by  the  language  used,  rather  than  the  character  of  the  subject-matter  or  of  the 
consideration,  though  this  may  be  considered,  and  if  the  duties  of  one  party  consist 
of  several  distinct  things,  and  the  price  to  be  paid  by  the  other  is  apportioned  to 
each  or  left  to  be  implied  by  law,  the  contract  is  severable.**     A  contract  made 
partly  by  correspondence  and  partly  orally  will  be  treated  as  oral.*' 


James,    25   Utah, 
Workingmen's 


35.  Utah   Liimber   Co. 
434,    71   Pac.    986. 

36.  Jacobs      v.       German 
Ass'n,  183  Mass.   3. 

37.  Butler   v.   Davis    (Wis.)    96   N.   W.    B61. 

38.  A  contract  requiring  certain  expenses 
to  be  apportioned  in  certain  parts  between 
three  parties,  will  not  bind  one  of  them  be- 
vond  his  share,  though  another  is  insolvent 
and  in  default  as  to  his  portion — Harris  v. 
Mercur.    202  Pa.   313. 

3!>.     Hill  V.   Combs.   92  Mo.  App.   242. 
Eveleth   v.  Sawyer,   96  Me,    227. 
Under   Civ.   Code.   §§   1431,    1659 — Leon- 
Leonard,  138  Cal,  xix,  70  Pac.  1071. 
McArthur    v.    Board    (Iowa)    93    N.   W, 


40. 
41. 

ard  V. 

42. 
580. 

43. 


Booth    Bros.    &    H.    I,    Granite    Co.    v, 
Baird,   83  App,  Div.   (N,  Y,)   495. 

44.  Nolt  V.  Crow,  22  Pa,  Super.  Ct.  113, 
E^ntlre  contracts — A  compromise  of  judg- 
ments In  consideration  of  compromises  by 
other  creditors,  and  one  with  the  same  cred- 
itor in  consideration  of  the  first  recited — 
Dyei  V,  Muhlenberg  County  (C.  C.  A,)  117 
Fed.  586,  Contract  for  different  sorts  of 
work  in  improvement  of  a  house  but  for 
a  lump  sum — Pitcairn  v.  Philip  Hiss  Co, 
(C  C.  A.)  113  Fed.  492.  Contract  for  pur- 
shase    of    all    of    a    certain    material    to    be 


used  in  a  factory  for  five  years,  at  a  cer- 
tain price  per  ton,  to  be  shipped  on  or- 
ders as  required — Loudenback  Fertilizer  Co. 
V.  Tennessee  Phosphate  Co.  (C.  C,  A,)  121 
Fed,  298.  Where  a  contract  for  cutting  tim- 
ber provided  that  cedar  timber  should  not 
be  removed  so  as  to  endanger  pine  by  fire, 
and  a  subsequent  contract  by  which  the  pur- 
chaser sold  the  cedar  provided  that  it  should 
not  be  cut  until  after  the  pine  but  should 
be  cut  before  a  certain  time,  or  all  timber 
then  standing  should  revert  to  the  seller, 
the  provision  for  forfeiture  in  the  later 
contract  was  entire  and  not  severable — Small 
V.  Robarge  (Mich.)  93  N,  W.  874.  A  con- 
tract to  construct  four  buildings  for  a  cer- 
tain sum  payable  semi-monthly  to  the  ex- 
tent of  75%  of  the  cost,  and  the  remainder 
payable  within  certain  time  after  comple- 
tion of  the  buildings.  Is  entire  and  not  a 
severable  contract,  though  It  provides  for 
a  division  of  payment  by  specifying  sums 
for  each  building — Wehrung  v.  Denham,  42 
Or.    386,    71    Pac,    133. 

Severable  contracts. — Contract  to  train 
horses  for  a  certain  amount  per  month  and 
ten  per  cent  of  purses  won — Brien  v.  Stone. 
82  App.  Div.  (N,  Y.)  450.  Contract  to  re- 
ceive three  specified  cars  of  goods  each  rep- 
I  resenting  a  particular   class   of  cars — Oliver 


§  4D  CONSTRUCTION  OF  LANGUAGE.  555 

(§4)     B.  Interpretation  of  language  used.*' — "Words  in  a  contract  free  from 


V.  Oregon  Sug-ar  Co.,  42  Or.  276,  70  Pac. 
902.  A  contract  for  cutting  and  getting  out 
timber  from  a  certain  tract  to  be  paid  for 
by  installments  as  the  work  progressed  is 
severable  in  that  full  performance  is  not 
necessary  to  recovery  of  compensation.  The 
contractor  may  recover  for  part  perform- 
ance less  damages  for  failure  to  perform 
remainder — Kerslake  v.  Mclnnis,  113  Wis. 
659.  A  contract  for  the  construction  of  a 
sample  machine  at  a  certain  price  and  for 
thirty  others  at  a  certain  price  for  each 
machine  when  delivered  complete,  is  sev- 
erable and  the  price  for  the  sample  machine 
may  be  recovered  on  its  completion — Flather 
V.  Economy  Slugging  Mach.  Co.,  71  N.  H. 
398.  A  contract  for  a  certain  number  of 
cars  of  lumber  to  be  taken  as  they  could 
be  produced  during  a  certain  period  of  time. 
complied  with  as  to  a  part  thereof  is  sev- 
erable so  that  having  been  partly  performed 
payment  could  be  recovered  for  the  lumber 
already  shipped  without  the  completion  of 
the  contract,  where  it  provided  for  the  re- 
ception of  each  car  individually — Henderson 
Lumber  Co.  v.  Stilwell  (Mich.)  89  N.  W.  71R. 
Where  a  building  contract  included  86 
houses,  but  the  price  of  work  on  each  was 
separately  fixed  and  payments  were  to  be 
made  in  amounts  and  at  time  enumerated 
in  the  estimate,  the  liens  to  be  released  on 
the  houses  on  which  the  contract  price  has 
been  paid  and  in  default  of  payment  and 
liens  to  be  filed  only  on  the  houses  as  to 
which  payment  was  in  arrears,  the  contract 
was  divisible,  the  consideration  and  rem- 
edy as  to  the  subject  matter  b^ing  separate 
as  to  each  building — Nolt  v.  Crow,  22  Pa. 
Super.   Ct.   113. 

45.  StaufEer    v.    Linenthal,     29     Ind.    App. 
305. 

46.  IVords  and  phrases  In  particular  con- 
tracts.— Particular  words  and  trade  terms 
in  contract  for  sale  of  coal — Withers  v. 
Moore  (Cal.)  71  Pac.  697.  Words  "held  in 
trust,"  used  In  an  insurance  policy — South- 
ern Cold  Storage  &  Produce  Co.  v.  Dechman 
(Tex.  Civ.  App.)  73  S.  W.  545.  Phrase  "use 
and  occupancy"  in  a  contract  for  insurance 
— Tanenbaum  v.  Simon,  40  Misc.  (N.  Y.) 
174.  Phrase,  "terms  cash,  less  1%%,"  in  a 
contract — Lawder  v.  Albert  Mackie  Grocer 
Co.  (Md.)  54  Atl.  634.  "By"  and  "through" 
— Wishon  v.  Great  Western  Min.  Co.,  29 
Wash.  355.  69  Pac.  1105.  Words  "so  as  to 
be  successfully  operative"  in  contract  for 
construction  of  railroad — Flanagan  Bank  v. 
Graham,  42  Or.  403,  71  Pac.  137,  790.  Words 
"delivered  Galveston"  without  explanatory 
note  in  a  contract  for  purchase  of  wheat; 
evidence  to  be  introduced  on  the  question 
of  construction  before  the  jury — Cameron 
Mill  &  Elevator  Co.  v.  Orthwein  (C.  C.  A.) 
120  Fed.  463.  "Settlement  or  recovery"  in 
a  contract  giving  an  attorney  a  certain  fee 
in  case  of  such  result — Randel  v.  Vander- 
bilt.  75  App.  Div.  (N.  Y.)  313.  Word  "equip- 
ment" in  contract  for  construction  of  street 
railway — McDonald  v.  Grout,  39  Misc.  (N. 
Y.)  18;  In  re  McDonald,  80  App.  Div.  (N.  Y.) 
210.  Where  the  word  "required"  In  a  con- 
tract for  the  sale  of  coal  is  construed  by 
the  parties  as  "needed,"  that  construction 
will  be  adopted  In  a  suit  on  the  contract — 
Purcell    V.     Sage,     200    111.     342.       The    word 


"proceeds"  in  a  contract  whereby  defendant 
agreed  to  hold  certain  notes  and  contracts 
in  trust,  and  out  of  the  proceeds  of  their 
collection  to  pay  cert.ain  debts,  the  collec- 
tion to  be  without  expense  to  one  of  the 
beneficiaries,  meant  as  to  such  beneficiary 
the  gross  amount  of  the  collection  to  an 
extent  suflScient  to  pay  him  and  the  collec- 
tion expenses  cannot  be  taken  out  of  the 
fund  applied  to  his  benefit — Wheeler  &  W. 
Mfg.  Co.  V.  Winnett  (Neb.)  91  N.  W.  514. 
"Profits"  in  salary  contract — Mayer  v.  Neth- 
ersole,  71  App.  Div.  (N.  Y.)  383.  A  contract 
of  partnership  providing  that  one  of  two 
brothers  was  to  furnish  services  to  the  firm 
and  "to  board  himself,"  was  not  a  contract 
requiring  him  to  pay  board  to  his  brother 
while  living  with  him — Hancock  v.  Han- 
cock's Adm'r,  24  Ky.  L.  R.  664,  69  S.  W. 
757.  Testimony  Is  admissible  to  show  in 
construction  of  a  lease  that  the  lessee  told 
the  lessor  that  he  was  about  to  build  a 
smelter,  and  that  the  prem.ises  were  desired 
for  dumping  purposes,  and  that  the  word 
"tailings"  used  in  the  lease  was  used  in 
its  broader  sense  and  intended  to  cover 
slag  (Code  Civ.  Proc.  §§  3136.  3137) — Butte 
&  B.  Consol.  Min.  Co.  v.  Montana  Ore  Pur- 
chasing Co.  (C.  C.  A.)  121  Fed.  524.  Soap- 
stone  is  "rock"  within  a  contract  to  drill 
a  well — Okey  v.  Moyers,  117  Iowa,  514.  The 
word  "claim"  in  a  contract  for  purchase  of 
a  mechanic's  lien,  provided  it  was  a  first 
claim  on  the  property  included  taxes  and 
the  existence  of  a  prior  lien  for  unpaid 
taxes  and  will  release  the  purchaser  from 
taxation — Dodson  v.  Crocker  (S.  D.)  94  N. 
W.  391.  The  -v/ord  "may"  in  a  contract 
for  construction  of  a  sewer  providing  that 
if  emergency  demands  the  engineer  may 
make  alterations  will  be  construed  ac- 
cording to  its  usual  meaning  and  not  as 
"shall."  The  clause  is  for  benefit  of  the 
commonwealth  alone — National  Corttracting 
Co.  v.  Commonwealth  (Mass.)  66  N.  E.  639. 
Where  a  contract  contained  the  words  "nom- 
inal horse-power"  which  had  no  technical 
meaning  in  the  trade,  they  must  be  construed 
as  referring  to  the  rated  or  professed  horse- 
power and  distinguished  from  the  capacity 
above  or  belo^v  the  nominal  horse-power 
nctually  developed  in  use — Heine  Safety 
Boiler  Co.  v.  Francis  Bros.  (C.  C.  A.)  117 
Fed.  235.  A  contract  with  a  boom  company 
to  carry  on  its  business  as  it  "is  now  re- 
quired" to  carry  it  on  does  not  require  the 
party  assuming  control  to  keep  the  booms 
and  piers  in  repair  though  the  boom  com- 
pany v^'as  under  obligations  to  its  prede- 
cessor to  maintain  the  booms  and  piers — 
Rumford  Falls  Boom  Co.  v.  Rumford  Falls 
Paper  Co.,  96  Me.  96.  Because  a  contract 
to  cut  and  deliver  dead  and  down  timber 
uses  the  word  "about"  or  "more  or  less," 
in  designating  the  quantity,  the  party  exe- 
cuting it  is  not  authorized  to  cut  a  large 
excess  over  the  quantity  mentioned — Pine 
River  Logging  Co.  v.  United  States,  186  U. 
S.  279.  Construction  of  a  contract  for  a 
dam  in  certain  contingencies  as  between  a 
mill  company  and  a  water  company  using 
water  from  Its  mill  pond,  as  to  what  con- 
stituted a  part  of  the  dam — Paris  Mill.  Co. 
v.  Paris  W^ater  Co.,  24  Ky.  L.  R.  1372,  71 
3.  W.   613. 


656 


CONTRACTS. 


§  4D 


ambiguity  will  be  given  their  plain  and  ordinary  meaning,*^  and  nothing  can  be  add- 
ed to  it  or  taken  from  it  by  the  court  in  construing  it.*^  The  purpose  of  the  contract 
therefore  will  be  given  effect,  if  possiljle,  by  any  reasonable  construction  of  the  lan- 
guage used,-**  and  if  the  meaning  is  doubtful,  that  construction  will  be  given  which 
will  give  effect  to  all  parts  of  the  instrument,'**  and  the  more  reasonable  and  prob- 
able of  two  constructions  of  which  an  ambiguous  contract  is  susceptible  will  be 
adopted."  Clauses  in  general  terms  which  would  be  conflicting  if  taken  literally 
must  be  construed  according  to  the  most  probable  intention  of  the  parties  under 
all  the  circumstances."*^  Where  a  contract  is  subject  to  two  constructions,  one  of 
which  will  make  it  valid  and  the  other  invalid,  that  construction  will  be  adopted 
which  will  make  it  valid.'^  A  plain  and  unambiguous  contract  cannot  be  miscon- 
strued by  reason  of  the  voluntary  pa}Tnents  made  by  one  party  through  mistake 
which  were  not  required  by  its  terms  nor  demanded  by  the  other  party.^*  If  two 
clauses  of  a  contract  are  repugnant,  the  earlier  prevails  unless  the  inconsistency  is 
such  as  to  destroy  the  instrument  as  uncertain.'*''  In  construing  a  particular  clause 
in  a  contract,  the  court  must  consider  the  entire  contract,  the  relation  of  the  par- 
ties, their  connection  with  the  subject-matter,  and  the  circumstances  of  its  execu- 
tion.'" The  interpretation  of  the  parties  themselves  in  their  dealings  together  will 
be  adopted  in  an  action  on  a  contract,'^  especially  where  the  contract  is  doubtful 


47.  The  purpose  of  construing  a  contract 
Is  to  learn  the  intentions  of  the  parties  and 
these  when  discovered  will  prevail  over 
inapt  expressions  and  verbal  inaccuracies — 
Pressed  Steel  Car  Co.  v.  Eastern  Ry.  Co. 
(C.  C.  A.)  121  Fed.  609;  Williams  v.  South 
Penn  Oil  Co..  52  "W.  Va.  181.  The  rule  ap- 
plies to  contracts  of  insurance — Hoover  v. 
Mercantile  Town  Mut.  Ins.  Co.,  93  Mo.  App. 
Ill;  Fitzgerald  v.  First  Nat.  Bank  (C.  C.  A.) 
114  Fed.  474.  Construction  of  contract  be- 
tween owners  of  related  patents  as  to  divi- 
sion of  license  fees  and  amounts  received 
for  damages  for  infringement — Wooster  v. 
Trowbridge  (C.  C.  A.)  120  Fed.  667.  A  con- 
tract for  the  purchase  of  a  mechanic's  lien 
providing  it  proved  to  be  a  first  claim  on 
the  property,  does  not  show  an  intention  on 
the  part  of  the  purchaser  to  exclude  the  lien 
of  taxes  under  his  contract — Dodson  v. 
Crocker  (S.  D.)  94  N.  W.  391.  A  contract 
requiring  one  to  refrain  from  making  claim 
against  an  estate  for  a  debt  in  consideration 
of  a  share  In  any  surplus  remaining  in  wind- 
ing up  of  a  firm  of  which  the  decedent  was 
a  member  if  such  surplus  did  not  exceed 
his  claim  against  the  estate,  does  not  mean 
that  he  would  make  no  claim  against  the 
partnership  assets  but  merely  against  the 
Individual — Whitman  v.  Taylor,  182  Mass.  37. 

48.  Hart   v.   Hart    (Wis.)    94   N.   W.  890. 

•J9.  Provident  Sav.  Life  As.sur.  Soc.  v.  Can- 
non. 201  111.  260.  That  construction  of  a 
contract  which  does  not  comport  with  the 
interest  of  otiier  party,  will  not  be  adopt- 
ed unless  expressed  In  clear  terms — Lewis- 
ton  &  A.  R.  Co.  V.  Grand  Trunk  Ry.  Co., 
97  Me.  261. 

50.  McGavock  v.  Omaha  Nat.  Bank  (Neb.) 
90  N.  W.  230.  The  construction  of  a  con- 
tract with  regard  to  certain  words  which 
appeared  to  be  ambiguous  must  be  deter- 
mined by  the  court  as  a  question  of  law. 
and  If  under  Its  determination,  the  words 
are  not  ambiguous,  parol  evidence  cannot 
be  admitted  to  show  the  construction  of 
either  party  so  as  to  vary  or  contradict 
such   meaning,   though   the  court  may   prop- 


erly hear  parol  evidence  of  the  collateral 
facts  and  circumstances  to  determine  the 
true  meaning  of  the  words;  but  on  the  other 
hahd,  when  testimony  of  a  contradictory 
character  is  admitted  to  show  the  meaning 
of  such  words,  the  question  is  for  the  Jury, 
and  plaintiff  must  establish  the  meaning  he 
asserts  by  the  weight  of  his  evidence — Cam- 
eron Mill  &  Elevator  Co.  v.  Orthwein  (C.  C. 
A.)    120    Fed.    463. 

51.  Pressed  Steel  Car  Co.  v.  Eastern  Ry. 
Co.    (C.   C.   A.)    121    Fed.    609. 

53.     Losecco    V.    Gregory,    108   La.    648. 

53.  Equitable  Loan  &  Security  Co.  v.  War- 
ing (Ga.)  44  S.  E.  320;  Culver  v.  Caldwell 
(Ala.)  34  So.  13;  Horton  v.  Rohlff  (Neb.)  95 
N.  W.  36.  The  same  is  true  of  a  single 
clause — State  v.  Mortensen  (Neb.)  95  N.  W. 
831.  Possible  Invalidity  as  suspending  power 
of  alienation  In  agreement  for  distribution 
of  an  estate — Union  Trust  Co.  v.  Owen,  77 
App.  Div.  (N.  Y.)  60.  Where  a  contract  Is 
capable  of  construction  either  as  legal  or 
illegal,  and  either  party,  especially  the  party 
upon  whom  the  main  obligation  rests,  has 
uniformly  construed  it  in  the  manner  which 
would  render  It  legal,  that  fact  will  be 
considered  in  determining  its  validity — Equi- 
table Loan  &  Security  Co.  v.  Waring  (Ga.) 
44    S.   E.    320. 

.14.     Sharp   V.    Behr,    117    Fed.    864. 

55.  Covenant  to  buy  goods  followed  by 
stipulation  releasing  liability  to  purchaser 
— Vickers  v.  Electrozone  Commercial  Co.,  67 
N.  J.  Law,  665. 

56.  Mayer  v.  Goldberg  (Wis.)  92  N.  W. 
556;  Losecco  v.  Gregory,  108  La.  648.  Con- 
tract for  purchase  of  iron  containing  pro- 
visions against  loss  by  fire  or  strikes  and 
for  transference  of  the  contract — Western 
Hardware  &  Mfg.  Co.  v.  Bancroft-Charnley 
Steel    Co.    (C.    C.    A.)    116    Fed.    176. 

57.  Clark  v.  University  of  Illinois,  103 
111.  App.  261;  Williams  v.  Auten  (Neb.)  93 
M.  W.  943;  Llnehan  Ry.  Transfer  Co.  v.  New 
Orleans  &  N.  W.  R.  Co.,  107  La.  645;  Porter 
V.  Allen  (Idaho)  69  Pac.  105,  236;  City  of 
Baxter    Springs    v.    Baxter    Springs    Light    & 


§4E 


INTERPRETATION.     USAGE. 


657 


as  to  its  meaning.""  Wliere  there  is  an  obvious  mistake  on  the  face  of  a  writter 
contract,  which  is  corrected  by  other  expressions,  it  will  be  construed  according  to 
the  evident  intent  of  the  parties  as  shown  by  the  entire  contract.^®  A  statute  will 
not  be  construed  to  avoid  a  contract  unless  it  so  specifically  declares.*"  Where  one 
who  is  ignorant  and  entirely  unable  to  read  or  write  English  is  induced  to  enter 
into  a  written  contract  by  representations  of  the  other  party's  agent  altogether  incon- 
sistent with  the  contents  of  the  instrument,  which  fact  was  known  to  the  agent  at 
the  time  of  making  the  representations,  the  court  will  give  such  contract  the  con- 
struction understood  and  agreed  to  by  the  party  so  signing.*^ 

(§4)  E.  Custom  or  usage  as  aids  to  interpretation.^^ — Contracts  are  always 
presumed  to  be  made  with  reference  to  the  existing  customs,  unless  they  are  excluded 
by  the  contractual  terms,*^  but  usage  cannot  create  a  contract,  where  none  existed 
without  it,®*  and  a  custom  to  violate  the  law  cannot  be  shown,**^  nor  can  usage 
he  shown  beyond  what  is  sufficient  to  make  clear  the  meaning  of  the  contract.^' 
Usage  may  be  proven  in  order  to  give  the  intended  ^^f^o\,  to  an  ambiguous  contract.*^ 
The  parties  must  have  knowledge  of  the  custom  or  usa^^./*  but  it  need  not  be  co- 
extensive with  the  state.®" 


Power  Co.,  64  Kan.  591,  68  Pac.  63;  Fitz- 
gerald V.  First  Nat.  Bank  (C.  C.  A.)  114 
Fed.  474.  Construction  of  constitution  of 
New  York  Exchange — In  re  Hayes,  37  Misc. 
(N.  T.)  264.  Rejection  of  words  from  con- 
tract— Ricketts  v.  Buckstaff  (Neb.)  90  N. 
W.  915.  Contract  for  royalty  in  manufac- 
ture of  dynamo  by  inventor  of  improved 
armature — Keith  v.  Electrical  Engineering 
Co.,  136  Cal.  178,  68  Pac.  598.  A  contract 
for  additional  compensation  is  a  practical 
construction  of  the  original  contract  be- 
tween the  parties  for  construction  of  a 
building — Board  of  Com'rs  v.  Gibson,  158 
Ind.  471.  In  construing  contracts  In  re- 
straint of  trade,  reference  should  be  had  to 
the  object  sought  to  be  attained  and  they 
will  not  be  given  a  construction  which, 
though  warranted  by  the  language,  cannot 
be  reasonably  supposed  to  have  been  con- 
templated by  the  parties  in  view  of  their 
circumstances  and  context  of  the  writing — 
Herpolsheimer  v.  Funke  (Neb.)  95  N.  W. 
687. 

58.  Laing  v.  Holmes,   93  Mo.  App.   231. 

59.  Noe  v.   Witbeck,   105   111.  App.   502. 

60.  Citizens'  State  Bank  v.  Nore  (Neb.) 
93  N.   W.   160. 

61.  People's  Bldg.,  Loan  &  Sav.  Ass'n  v. 
Klauber   (Neb.)    95   N.  W.  1072. 

62.  Custom  as  fixing  rate  of  compensa- 
tion— People  V.  Clarke.  79  App.  Div.  (N.  Y.) 
78.     See,  also.  174  N.  Y.  259. 

63.  Lupton  v.  Nichols,  28  Ind.  App.  539; 
McCurdy  v.  Alaska  &  C.  Commercial  Co.,  102 
111.  App.  120.  The  practice  of  years  may 
establish  a  custom — Hayes  v.  Union  Mercan- 
tile Co.,  27  Mont.  264,  70  Pac.  975.  Custom 
as  to  place  of  weighing  goods  sold — Gehl 
v.  Milwaukee  Produce  Co.  (W^is.)  93  N.  W. 
26.  Custom  as  to  "season"  for  traveling 
salesman — Johnston-Woodbury  Hat  Co.  v. 
Lightbody  (Colo.  App.)  70  Pac.  957.  Cus- 
tom to  sustain  Implied  contract — Bryan  v. 
Brown,  3  Pen.  (Del.)  504.  If  there  is  a 
certain  definite,  uniform  and  reasonable  cus- 
tom In  regard  to  certain  transactions,  that 
custom  is  binding  in  dealings  of  that  sort 
between  parties.  Dealings  by  cablegram,  in 
which  custom  requires  an  answer  to  be  sent 
within   twenty-four   hours — Robeson   v.  Pels, 

Cur.  Law — 42. 


202  Pa.  399.  Where  a  custom  Is  shown  to  b?"- 
been  as  extensive  and  general  as  the  busi- 
ness Itself  in  which  a  contract  was  made, 
and  defendant  is  shown  to  have  been  fa- 
miliar with  the  customs  of  the  business, 
he  will  be  bound  by  such  custom — Heyworth 
V.  Miller  Grain  &  Elevator  Co.  (Mo.)  73  S. 
W.  498.  Where  a  contract  for  manufacture 
of  a  patent  provided  that  the  cost  of  labor 
should  be  calculated  at  the  "average  shop 
cost  per  man,"  It  was  proper  In  determin- 
ing such  cost  to  employ  a  custom  of  the 
manufacturer  in  adding  60%  to  the  actual 
cost  of  labor  for  operating  expenses — Bate.s 
Mach.  Co.  v.  Cookson,  202  111.  248.  Where 
parties  to  a  contract  have  agreed  on  a  par- 
ticular point,  but  there  is  a  controversy  as 
to  the  terms,  usages  respecting  them  cannot 
be  shown,  since  they  are  excluded  by  spe- 
cial agreement — Currie  v.  Syndicate  Des  Cul- 
tivators Des  Oignons  a'  Fleur,  104  111.  App. 
165;  Mcintosh  v.  Pendleton,  75  App.  Div. 
(N.  Y.)  621;  Thompson  v.  Exum,  131  N.  C. 
111.  Custom  in  a  certain  trade  cannot  be 
shown  in  an  action  on  a  contract  specifying 
the  manner  in  which  work  was  to  be  done 
— Independent  School  Dist.  v.  Swearingin 
(Iowa)  94  N.  W.  206.  A  custom  of  land 
agents  to  get  benefits  from  both  parties  to 
a  sale  while  representing  one  cannot  be 
shown  In  an  action  on  a  contract  for  secur- 
ing an  exchange  of  property  on  considera- 
tion oi  receiving  certain  personalty — Distad 
V.   Shanklin,    15    S.    D.    507. 

64.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'  Fleur,   104  111.  App.   165. 

65.  Action  by  brewing  company  to  re- 
cover for  money  loaned  a  saloon  keeper.  In 
which  plaintiff  attempted  to  show  that  brew- 
ing companies  were  accustomed  to  take  out 
licenses  in  their  own  names  to  be  used  by 
third  persons — Koppitz-Melchers  Brew.  Co. 
V.    Behm    (Mich.)    90    N.   W.    676. 

66.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'   Fleur,   104  111.  App.   165. 

67.  Baer  v.  Glaser,  90  Mo.  App.  289.  Con- 
struction of  Constitution  of  New  York  Stock 
Exchange  as  to  disposition  of  proceeds  to 
membership  of  insolvent  member — In  re 
Hayes,    37    Misc.    (N.    Y.)    264. 

68.  Hendricks  v.  W.  G.  Middlebrooks  Co. 


653 


CONTRACTS. 


§  4F 


(§  4)  F.  Terms  as  to  subject-matter.'"^— An  agreement  as  to  the  application  of 
credits  in  an  account  which  was  afterward  closed  would  not  cover  an  account  subse- 
quently opened  unless  expressly  so  provided.^^  Bringing  together  materials  for 
performance  of  a  building  contract  gives  the  owner  no  right  therein  and  he  cannot 
restrain  their  removal  by  the  contractor."  Where  a  subcontract  for  a  building  re- 
quired work  to  cease,  or  extra  work  to  be  done  on  direction  of  the  owner  or  archi- 
tects, and  a  deduction  or  extra  pay  as  a  result,  whatever  the  case  might  be,  the  con- 
tractor was  not  precluded  from  doing  extra  work.''*  Where,  at  the  time  a  building 
contract  was  made,  it  was  intended  that  part  of  an  old  building  should  be  used  in 
the  construction  of  the  new,  and  as  the  work  progressed  it  became  apparent  that 
such  portion  could  not  be  so  used,  extra  work  in  making  the  new  construction  to 
take  its  place  was  not  covered  by  the  contract.^*  Where  specifications  require  that 
the  foundations  of  a  building  should  go  down  to  actual  undisturbed  earth  and  deeper 
than  the  drawings  necessary  for  that  purpose,  the  sinking  of  the  foundation  below 
the  point  shown  in  the  drawings  was  not  beyond  or  outside  the  contract  and  the 
contractor  cannot  charge  therefor  as  extra  work.'^^  A  contract  for  the  sale  of  logs 
cannot  be  held  to  include  logs  sold  and  delivered  to  another  imder  a  previous  con- 
tract.''® A  contract  whereby  a  theatrical  firm  was  to  produce  a  play,  restrictions 
being  given  against  publication  or  transfer  of  rights  and  the  author  having  control 
of  the  production,  will  not  allow  the  firm  to  license  production  by  other  companies.''^ 
Wliere  a  new  permit  was  necessary  to  reopen  streets  for  repaving,  after  gas  mains 
were  laid  and  trenches  filled,  such  permit  must  be  secured  by  the  commissioner  of 
highways  under  a  contract  between  him  and  the  gas  company  providing  for  gas 
mains  to  be  laid  in  the  streets  and  requiring  the  commissioner  to  secure  the  neces- 
sary permits.'*     A  contract  whereby  a  doctor  agreed  to  sell  his  practice  and  give 


(Ga.)  44  S.  E.  835;  Consumers'  Ice  Co.  v. 
Jennings  (Va.)  42  S.  E.  879;  Great  Western 
Elevator  Co.  v.  White  (C.  C.  A.)  118  Fed. 
40G. 

«l).  Rastetter  v.  Reynolds  (Ind.)  66  N. 
E.   612. 

70.  Construction  as  to  subject  matter.^ 
Whether  sale  of  a  crop  was  of  the  crop 
Itself  or  the  mere  hope  of  a  crop — Losecco 
V.  Gregory.  108  La.  648.  Whether  sale  of 
a  crop  included  damaged  tobacco — Jacobson 
V.  Tallard  (Wis.)  93  N.  W.  841.  On  a  sale 
of  goods  failure  to  deliver  the  particular 
goods  Is  immaterial  if  other  goods  equally 
good  are  delivered — Walker  v.  Taylor  (Del.) 
53  Atl.  357.  As  to  quantity — Scully  v.  De- 
troit Iron  Furnace  Co.  (Mich.)  93  N.  W^.  885; 
Excelsior  Wrapper  Co.  v.  Messinger  (Wis.)  93 
N.  W.  459.  What  was  included  in  sale  of  a 
machine  for  dipping  chocolate — Weeks  v. 
Robert  A.  Johnston  Co.  (W^is.)  92  N.  W.  794. 
'"•(impUance  of  grain  with  sample — Butter- 
lield  V.  Butterfleld  (Colo.  App.)  71  Pac.  639. 
Deflnlteness  of  shipping  articles  as  to  voy- 
age— The  Falls  of  Keltie.  114  Fed.  357;  The 
Mermaid  (C.  C.  A.)  115  Fed.  13.  Construc- 
tion of  oil,  gas  and  mineral  lease  as  to 
amount  of  product  to  which  lessor  is  en- 
titled— Dickson  v.  Fertig,  21  Pa.  Super.  Ct. 
283.  Discharge  from  "any  and  all  liability 
on  judgments"  for  sum  specified  includes 
liability  for  costs  and  interest — Dyer  v. 
Muhlenberg  County  (C.  C.  A.)  117  Fed.  586. 
A  contract  to  sell  land  confers  an  interest 
on  the  vendee  who  is  to  pay  a  certain  debt 
md  continue  to  occupy  and  pay  rent  for 
ihe  lands  though  he  has  paid  none  of  the 
Jebt   and   has   performed   only   in    respect   to 


the  other  promises — Cone  v.  Cone  (Iowa)  92 
N.  W.  665.  A  condition  in  a  sub-contract 
for  erection  of  a  building,  that  final  payment 
.should  be  due  when  the  Tvork  ^vas  complet- 
ed and  the  sub-contractor  had  furnished  the 
original  contractor  releases  of  all  liens  and 
claims,  referred  only  to  such  as  might  arise 
under  the  mechanic's  lien  law  of  the  state — 
Turner  v.  Wells,  67  N.  J.  Law,  572.  Where 
co-sureties  on  a  note  paid  it  in  equal  por- 
tions under  an  agreement  to  hold  it  and 
share  collections  from  the  principal,  and 
afterward  one  of  them  obtained  assignment 
of  a  contract  from  the  principal,  under  whict 
he  was  to  advance  the  principal  money  t" 
carry  out  such  contract,  and  \vas  to  re- 
ceive payment  on  his  debt  out  of  the  pro- 
ceeds, such  money  w^as  subject  to  the  divi- 
sion under  the  agreement  between  him  and 
his  co-surety — Cramer  v.  Redman  (Wyo.)  68 
Pac.    1003. 

71.  Boody  V.  Pratt,   68  N.  J.  Law,  295. 

72.  Cameron  v.  Orleans  &  J.  Ry.  Co.,  108 
La.  83;  Orleans  &  J.  Ry.  Co.  v.  International 
Const.   Co.,  108  La.   82. 

73.  Isaacs  v.  Dawson,  174  N.  Y.  537. 

74.  Langley  v.  Rouss,  116  N.  Y.  St.  Hep 
1082. 

75.  Wear  Bros.  v.  Schmelzer,  92  Mo.  App 
314. 

76.  Yellow  Poplar  Lumber  Co.  v.  Stephens 
24  Ky.  L.  R.  621,  69  S.  W.  715. 

77.  Heme  v.  Liebler,  73  App.  Div.  (N.  Y.  • 
194. 

78.  Under  City  Charter  of  New  York,  §i 
524,  525 — Norton  v.  New  Amsterdam  Gas  Co.. 
174  N.  Y.   538. 


§  4G 


PARTIES  AND  PRIVIES. 


659 


uj)  liis  office  to  the  other  party  did  not  require  that  he  should  make  arrangements 
with  his  landlord,  of  whom  he  rented  the  office,  for  its  use  by  the  purchaser,  or  with 
the  other  physician  with  whom  he  shared  such  office,  but  merely  required  that  he 
vacate  so  that  the  purchaser  might  occupy  it  if  he  so  chose.''®  Where  one  owning 
an  interest  in  lands  contracted  for  improvements  to  be  paid  for  at  certain  stages  of 
tlie  work,  and  subsequently  agreed  to  hold  money  due  the  contractor  for  benefit  of 
the  material  man,  no  liability  existed  under  the  latter  agreement  where  the  work 
was  not  completed  so  as  to  entitle  the  contractor  to  the  first  payment.^*^  A 
contract  between  husband  and  wife,  declaring  that  irreconcilable  dift'erences  existed 
and  that  a  permanent  separation  was  desired  and  a  divorce  was  contemplated,  which 
settled  on  the  wife  a  small  portion  of  the  property  in  lieu  of  alimony  and  contained 
an  agreement  of  dissolution  of  the  marriage  relations,  was  not  one  for  mere  sepa- 
]  ation,  but  was  for  the  purpose  of  eecuring  a  divorce.^^ 

(§4)  G.  Terms  as  to  parties;  privity  of  contract. — The  construction  of  the 
terms  of  contracts  as  to  who  is  privy  thereto,  or  entitled  to  benefits,  depends  so  much 
upon  the  circumstances  of  the  particular  case  that  no  definite  analysis  is  attempted, 
but  the  cases  will  be  found  represented  in  the  footnotes.  Some  few  instances  have 
been  thought  worthy  of  attention  in  the  text.^^     A  party  to  a  contract  who  is  injured 


70.     Wallingford    v.    Aitkins,    24   Ky.   L.    R. 
1995,  72   S.  W.   794. 

80.  Young  V.  Smith,   202  Pa.   329. 

81.  Palmer    v.    Palmer    (Utah)    72    Pac.    3. 
S3.     Parties  to  license  for  use  of  patented 

machine — Warth  v.  Mertens,  173  N.  Y.  626. 
Parties  to  railroad  lease — Southern  Ry.  Co. 
V.  Ensign  Mfg.  Co.  (C.  C.  A.)  117  Fed.  417. 
An  agreement  to  pay  taxes  on  trees  grow- 
ing on  lands  of  another  will  not  bind  the 
state  to  look  to  the  promisor  though  it  is 
binding  as  between  the  parties — Williams 
V.  Triche.  107  La.  92.  Sufficiency  of  recitals 
to  show  that  contract  was  made  for  benefit 
of  a  firm — Williams  v.  Magee,  76  App.  Div. 
(N.  Y.)  512.  An  assignment  of  a  contract 
under  an  agreement  that  the  assignee  shall 
assume  all  obligations  thereunder  does  not 
render  him  a  party  so  that  he  may  be  sued 
by  the  other  party — Goodyear  Shoe  Machin- 
ery Co.  V.  Dance!  (C.  C.  A.)  119  Fed.  692. 
An  agreement  i^y  an  insolvent  husband  to 
deed  property  to  his  wife  if  she  will  dis- 
continue a  divorce  proceeding  brought  may 
be  set  aside  by  creditors  of  the  husband — 
Oppenheimer  v.  Collins  (Wis.)  91  N.  W.  690. 
A  creditor  who  claims  the  benefit  of  a  con- 
tract by  a  third  person  with  the  debtor  to 
pay  the  debt,  is  bound  by  equities  arising 
between  the  parties  out  of  the  agreement — 
Hargadine-McKittrick  Dry  Goods  Co.  v. 
Swofford  Bros.  Dry  Goods  Co.,  65  Kan.  572, 
70  Pac.  582.  A  written  contract  signed  by  the 
"building  committee"  of  a  certain  church 
following  the  names  of  the  committee,  and 
containing  an  express  promise  on  the  part 
of  the  members,  without  a  statement  that 
they  promised  for  or  on  behalf  of  each 
other,  was  a  personal  obligation  of  the  com- 
mittee, where  no  authority  to  bind  each 
other  was  shown — Copeland  v.  Hewett,  96 
Me.  525.  An  employee  injured  by  an  ex- 
plosion of  oil  purchased  by  his  employer  can- 
not sue  the  seller  to  recover  for  injuries 
because  the  oil  was  Inferior  in  quality,  that 
being  a  foundation  of  an  action  for  breach 
of  contract,  as  to  which  he  was  not  a  party 
or  privy — Standard  Oil  Co.  v.  Murray  (C.  C. 
A.)  119  Fed.  572.     Where  at  the  time  of  sale 


of  a  paper  mill  to  another  corporation  a 
side  track  had  been  constructed  to  the  mill 
by  the  railroad  company  and  used  by  the 
prior  owner  for  nearly  a  year,  the  pur- 
chaser, charged  with  notice  of  its  existence, 
was  bound  by  the  terms  of  the  contract  as 
to  its  construction  and  maintenance  made 
by  the  vendor  with  the  railroad  company — 
Michigan  Cent.  R.  Co.  v.  Chicago,  K.  &  S. 
Ry.  Co.  (Mich.)  93  N.  W.  882.  Where  a  con- 
tract was  made  whereby  a  person  since  de- 
ceased was  allowed  to  name  a  child  in  con- 
sideration of  his  agreement  to  convey  land 
to  the  child,  and  the  latter  continued  to 
bear  the  name  down  to  the  time  of  bring- 
ing suit  to  obtain  the  land,  he  thereby  rat- 
ified the  contract  made  by  his  parents,  and 
there  was  sufficient  privity  between  him 
and  the  promisor  to  entitle  him  to  sue — 
Daily  v.  Minnick,  117  Iowa,  563.  If  the 
purchaser  of  premises  agrees  to  pay  claims 
for  materials  used  in  buildings  thereon,  for 
which  the  vendor  is  liable,  he  becomes  the 
principal  debtor  and  the  vendor  a  surety, 
but  his  undertaking  will  not  Inure  to  the 
benefit  of  a  claimant  if  the  vendor  was  not 
liable  therefor — Hurd  v.  Wing,  76  App.  Div. 
(N.  Y.)  506.  Where  an  agreement  for  the 
conveyance  of  land  was  on  the  consideration 
that  the  grantee  should  pay  third  persons 
a  certain  sum,  though  such  sums  were  really 
gifts,  the  promise  as  to  such  third  persons 
was  supported  by  the  consideration  be- 
tween the  immediate  parties  as  though  the 
beneficiaries  ■were  actual  parties,  regardless 
of  acts  of  the  parties  without  consent  of  the 
beneficiaries — Tweeddale  v.  Tweeddale  (Wis.) 
93  N.  W.  440.  Mere  consent  on  the  part 
of  a  chattel  mortgagee  of  cattle,  that  the 
owner  might  employ  another  to  care  for 
them,  raises  no  liability  on  his  part  to  pay 
for  such  care — Boston  &  K.  C.  Cattle  Loan 
Co.  V.  Dickson,  11  Okl.  680,  69  Pac.  889.  A 
sale  of  stock  in  a  railroad  company  by  a 
stockholder  with  covenants  to  erect  a  saw- 
mill on  lands  adjacent  to  the  road  and 
ship  lumber  at  a  certain  rate  followed  by 
subsequent  transfers  of  the  timber  rights 
with     the     covenants     attached     confers     no 


bbO 


CONTRACTS. 


§   4G 


cannot  recover  damages  from  a  third  person  whose  negligence  rendered  perform- 
ance by  the  other  party  impossible,^^  or  from  one  not  a  party  and  without  interest 
therein,  though  he  made  fraudulent  representations  which  induced  the  contract.** 
A  third  person,  for  whose  benefit  a  contract  is  made,  may  enforce  it  whether  he 
had  knowledge  of  it  at  the  time  of  making  or  whether  he  formally  assented  thereto 
before  action,*"  but  one  for  whose  benefit  a  bond  on  appeal  was  not  made  has  no 
privity  of  contract  therein  which  will  allow  him  to  compel  the  sureties  to  pay.*'' 
If  a  party  assumes  the  fulfillment  of  a  contract  for  another,  the  one  to  whom  tlie 
latter  is  bound,  if  informed  of  and  assenting  to  the  agreement,  is  in  privity  of  con- 
tract with  the  party  assuming  such  fulfillment.*^  A  debtor  may  sue  another  on  a 
contract  whereby  the  latter  agrees  to  assimie  payment  of  his  debt,  but  in  a  suit  by 
the  creditor,  the  third  person  may  urge  any  set  off  in  defense  he  might  have  had 
Mf^ainst  the  debtor  in  a  suit  on  the  agreement.**  One  who  has  an  indirect  interest 
in  an  undertaking  by  another  to  pay  the  debts  of  a  third  person  is  not  in  sufficient 
privity  as  to  be  enabled  to  maintain  an  action  at  law  thereon.*®  A  deed  providing 
that  a  surety  of  the  grantee  shall  have  a  lien  on  the  land  as  indemnity  gives  a  lien 
in  his  favor  which  may  be  enforced  though  he  is  not  a  party  to  the  deed,^°  but  it 
must  appear  that  there  was  an  intent  by  the  promisee  or  person  with  whom  the 
contract  was  made,  to  secure  the  benefit  to  the  third  party  and  that  some  privity 
existed  between  such  persons.®^  The  promise  of  individuals  that  a  certain  corpora- 
tion which  they  intend  to  organize  shall  make  certain  pa}'ments  will  not  bind  the 
corporation,  it  not  being  in  existence  nor  does  it  render  them  personally  liable.®- 
An  agreement  by  the  life  tenant  to  buy  improvements  made  by  his  lessee  will  not 


rights  on  the  railroad  company  there  being 
no  privity  between  the  company  and  the  cov- 
enantors. The  railroad  corporation  cannot 
contract  in  the  name  of  an  individual  stock- 
holder; it  cannot  enjoin  carriage  of  the  tim- 
ber over  another  road — Waycross  Air  Line 
R.  Co.  V.  Southern  Pine  Co.,  115  Ga.  7.  One 
who  contracted  for  a  contingent  fee  with 
defendants  in  an  action  to  secure  evidence 
to  show  that  the  ancestor  of  one  of  them 
who  located  a  mining  claim  was  a  citizen, 
\.as  entitled  to  recover  from  defendants  his 
part  of  a  judgment  rendered  in  favor  of 
defendants  and  third  persons  made  parties 
to  the  action.  The  contract  amounted  to  an 
assignment  of  so  much  of  the  judgment  ren- 
dered in  favor  of  defendants — Wood  v.  Cas- 
serlcigh,  30  Colo.  287.  71  Pac.  360.  Where 
a  .<5treet  railway  company  purchased  all  the 
equipment  of  a  previously  existing  rail- 
way under  a  stipulation  that  the  sale  did 
not  include  the  franchise,  leases,  contracts 
or  power  house  machinery  of  the  seller,  the 
street  railway  company  did  not  thereby  be- 
come the  successor  of  the  railway  company 
within  a  contract  which  obligated  such  com- 
pany and  its  successors  to  pay  for  mainte- 
nance of  a  flagman  at  a  steam  railroad  cross- 
ing— Chicago  &  N.  W.  Ry.  Co.  v.  Fox  River 
Elec.  Ry.  &  Power  Co.  (Wis.)  9fi  N.  W. 
541.  A  verbal  agreement  to  sell  a  certain 
privilege  to  land  without  conveyance  of  ti- 
tle, .cannot  be  set  up  to  defeat  the  right  to 
recover  the  balance  of  the  purchase  price 
under  a  subsequent  written  conveyance, 
whereby  with  consent  of  both  parties,  such 
privilege  is  sold  to  a  third  person  at  an 
advanced   price — Upchurch   v.    Bunn,    117  Ga. 


54. 


83.  Byrd  v.   English.   117   Ga.   191. 

84.  Lemon  v.  Wheeler.  96  Mo.  App.  651. 


85.  Erdman  v.  Upham,  70  App.  Div.  (N. 
T.)  315.  The  law  creates  the  relation  of 
privity  between  the  promisor  and  the  bene- 
ficiary— Tweeddale  v.  Tweeddale  (Wis.)  93 
N.  W.  440.  If  a  fund  is  placed  by  a  debtor 
in  the  hands  of  a  third  person  to  be  applied 
to  the  payment  of  a  certain  debt,  the  cred-' 
itor  may  sue  the'  holder  of  the  fund,  though 
he  was  not  present  when  the  transaction 
was  made — Howes  v.  McCrea,  21  Pa.  Super. 
Ct.  592.  A  promise  by  a  son  to  his  father 
on  receipt  of  property  from  the  latter  that 
on  the  father's  death  a  certain  amount 
should  be  paid  to  a  daughter,  created  a  right 
in  favor  of  the  father,  which,  being  assigned 
to  the  daughter,  could  be  enforced  by  her 
— Ebel  v.  Piehl    (Mich.)    95  N.  T\^  1004. 

86.  Partner  has  no  interest  in  an  appeal 
bond  given  by  another  who  alone  appealed 
from  a  judgment  against  the  firm — Rowe  v. 
Moon,   115  Wis.  566. 

87.  Contract  to  maintain  another  for  life 
— Moore    V.    Hooker,    101    111.    App.    177. 

8S.  The  creditor  cannot  sue  at  law  but 
may  be  subrogated  to  the  debtor's  rights 
in  equity^Greene  v.  McDonald,   75  Vt.  93. 

i89.  Central  Elec.  Co.  v.  Sprague  Elec.  Co. 
(C.    C.    A.)     120    Fed.    925. 

90.  Blakeley  v.  Adams,  24  Ky.  L.  R.  2G3. 
324.    68    S.    ^V.    393,    473. 

91.  Frerking  v.  Thomas  (Neb.)  89  N.  AV. 
1005.  Such  a  rule  enunciated  by  statute  iii 
New  Jersey  does  not  extend  the  right  of 
enforcement  to  third  parties  who  would  be 
benefited  incidentally  by  performance.  Pub. 
Laws  1898,  p.  481,  providing  that  third  per- 
sons for  whose  benefit  contracts  were  made, 
may  sue  thereon  in  their  own  name — Styles 
V.   F.   R.   Long  Co.,    67   N.   J.    Law.   413. 

92.  Durgin  v.  Smith  (Mich.)  94  N.  W. 
1044. 


§  AH 


PLACE  AND  TIME. 


66  i 


bind  the  remainderman."  Executors  who  sign  a  contract  agreeing  to  do  certain 
acts  as  executors  and  others  in  an  individual  capacity  are  only  bound  to  the  acts 
which  they  agree  to  do  as  executors."*  Connecting  carriers  are  not  liable  on  an 
interstate  contract  of  shipment,  which  in  terms  limits  each  carrier  to  its  own  line, 
there  being  no  agency  or  partnership  between  them.^"* 

(§4)  H.  Terms  as  to  place  and  time.^^ — Wliere  no  time  is  given  for  perform- 
ance of  a  contract  it  will  be  construed  to  require  performance  within  a  reasonable 
time.®''  A  contract  requiring  work  thereunder  to  commence  "immediately'"  will  be 
held  to  mean  such  time  as  is  reasonably  required  to  fulfill  such  terms.®*  A  promise  to 
pay  when  able  cannot  be  sued  upon  without  proof  of  ability  to  pay,"®  and  the  same  is 
true  of  promise  to  pay  money  "as  soon  as  he  could."^  A  condition  in  a  contract 
by  a  state  oiBcer  that  he  would  meet  an  obligation  as  fast  as  he  could  spare  funds 


93.  Chllvers   v.    Race,    196    111.    71. 

94.  Myers  v.  Metzger    (N.  J.   Law)    52  Atl. 

274. 

95.  Texas  &  P.  Ry.  Co.  v.  Byers  Bros. 
(Tex.  Civ.  App.)    73   S.  W.   427. 

96.  Time  as  of  the  essence  of  the  con- 
tract— Thacker  "Wood  &  Mfg.  Co.  v.  Mallory, 
27  Wash.  670,  68  Pac.  199.  Construction  of 
electric  power  service  contract  as  to  the 
time  when  power  should  be  taken  by  the 
purchaser — Laclede  Power  Co.  v.  Stillwell, 
97  Mo.  App.  258.  Contracts  as  to  time  and 
voyage  of  vessels  under  charter — The  Don- 
ald, 115  Fed.  744;  The  Helios  (C.  C.  A.)  115 
Fed.  705.  Where  a  contract  with  the  man- 
ager of  a  corporation,  requires  him  to 
place  it  on  a  paying  basis  and  gives  him  a 
substantial  interest  in  future  earnings  with- 
out regard  to  services  rendered  "thereafter," 
it  will  be  construed  to  mean  after  payment 
of  debts  of  the  corporation  and  not  after 
the  execution  of  the  contract — Dupignac  v. 
Bernstrom,  37  Misc.  (N.  Y.)  677.  A  contract 
for  the  rai.sing  of  money  and  the  organiza- 
tion of  a  corporation  for  the  purchase  of 
land,  providing  for  payment  of  a  certain  sum 
by  one  of  the  parties  when  such  money 
should  be  raised  and  title  to  the  lands  se- 
cured, only  required  the  payment  of  such 
sum  after  the  raising  of  the  money  for  the 
purchase  of  the  land  and  the  securing  of 
the  title — Oliver  v.  Morse,  104  111.  App.  129. 
A  clause  in  a  construction  contract  for  work 
during  five  years  and  providing  that  the  con- 
sideration is  to  be  paid  for  services  and 
materials  and  "the  complete  execution  of 
said  contract,"  is  not  a  necessary  condition 
to  payment  but  merely  an  independent  cove- 
nant giving  a  right  to  recoupment  or  to 
an  action  for  breach  thereof — Chapman  v. 
Salflsberg.  104  111.  App.  445.  Where  a  con- 
tract between  a  railroad  company  and  a 
ferry  company,  for  transportation  of  cars 
across  a  river,  provided  that  it  should  re- 
main in  force  for  ten  years,  that  if  at  the 
end  of  five  years  the  railroad  should  wish 
to  buy  the  property  of  the  ferry  company, 
the  basis  should  be  founded  on  the  fifth 
year's  business  for  the  remaining  five  years 
of  the  contract,  and  that  if  the  parties  de- 
sired to  terminate  the  contract  at  the  end 
of  ten  years,  then  the  railroad  company 
should  have  the  right  to  purchase  the  boats 
and  incline  for  a  fair  compensation,  the 
contract  terminated  at  the  end  of  ten  years 
with  the  right  in  the  railroad  company,  if 
it  did  not  wish  to  renew,  to  purchase  the 
property  at  a  fair  price — Linehan  Ry.  Trans- 


fer Co.  V.  New  Orleans  &  N.  W.  R.  Co.,  107 
La.  645.  Where  land  was  conveyed  to  an- 
other in  consideration  of  a  contract  for 
certain  services  to  be  performed  by  him 
conditioned  on  his  retaining  title  during 
performance,  and  in  case  of  sale  to  pay  cer- 
tain other  persons  specified  sums  of  money, 
on  a  sale  of  the  property  the  debt  to  such 
third  persons  became  absolute  Immediately 
— Tweeddale  v.  Tweeddale  (Wis.)  93  N.  W. 
440.  Where  a  contract  for  bidding  in  land 
under  foreclosure  and  holding  the  title  for 
benefit  of  the  owner  until  redeemed,  fails 
because  the  purchaser  did  not  pay  the  price 
and  the  land  was  resold  and  purchased  by 
the  purchaser  for  the  benefit  of  another, 
the  contract  extended  to  the  second  sale 
and  its  binding  effect  was  not  destroyed  by 
the  subsequent  contract  made  to  purchase 
for  another — Williams  v.  Avery,  131  N.  C. 
188.  A  contract  for  maintenance  of  a  side 
track  to  a  mill,  during  the  time  that  busi- 
ness was  carried  on  at  tlie  mill,  referred 
to  the  particular  business  for  which  the 
mill  was  constructed  and  did  not  terminate 
by  the  sale  of  the  mill,  where  it  was  operat- 
ed for  the  same  purpose  thereafter — Michi- 
gan Cent.  R.  Co.  v.  Chicago,  K.  &  S.  Ry. 
Co.    (Mich.)    93    N.    W.    882. 

97.  Walker  v.  Taylor  (Del.)  53  Atl.  357; 
Murphy  v.  Dernberg.  84  App.  Div.  (N.  Y.) 
101;  Krause  v.  Board  of  School  Trustees 
(Ind.  App.)  66  N.  B.  1010.  Building  con- 
tract— Andrae  v.  Watson  (Tex.  Civ.  App.) 
73  S.  W.  991.  Contract  to  procure  a  loan — 
Collier  v.  Weyman,  114  Ga,  944.  An  agree- 
ment to  work  a  farm  in  consideration  of  a 
half  interest  to  be  conveyed  at  some  future 
time  implies  that  a  deed  therefor  will  be 
given  in  a  reasonable  time — Reynolds  v. 
Reynolds,  74  "Vt.  463.  Oil  lease — Parish  Fork 
Oil  Co.  v.  Bridgewater  Gas  Co.,  51  W.  Va. 
583.  A  contract  providing  that  work  should 
be  done  as  to  a  certain  particular  within 
30  days,  the  remainder  as  soon  as  prac- 
ticable thereafter,  did  not  require  that  it 
should  have  been  done  as  soon  as  possible. 
with  the  best  appliances,  utmost  facilities 
and  extraordinary  diligence,  but  as  soon  as 
could  be  by  exercise  of  due  diligence  and 
without  unreasonable  delay — Williams  v.  Rit- 
tenhouse,   198  111.   602. 

98.  Ephrata  Water  Co.  v.  Ephrata  Bor- 
ough.   20    Pa.    Super.   Ct.    149. 

99.  In   re   Knab.    38   Misc.    (N.   Y.)    717. 

1.  Wright  V.  Farmers'  Nat.  Bank  (Tex. 
Civ.    App.)    72   S.   W.    103. 


662 


CONTRACTS. 


§   41 


from  his  salary  does  not  render  payment  subject  to  such  contingency  bnt  merely 
fixes  time  for  payment.'^  A  second  contract  made  after  performance  under  the 
first,  providing  that  paj^ment  was  to  be  made  thereunder  when  the  finances  of  the 
party  permitted,  means  that  payment  is  to  be  made  when  the  party  is  able.*  Un- 
avoidable delay,*  or  dehiy  caused  by  the  other  party,^  or  accepted  by  him,®  will  not 
affect  the  contract.  Where  one  alternative  of  a  contract  expires  by  default  the 
party  obligated  is  immediately  liable  on  the  other."  Under  a  building  contract 
prescribing  a  penalty  for  each  day  after  a  certain  date  until  the  building  is  com- 
pleted, the  contractor  is  not  entitled  to  a  deduction  for  Sundays.*  Where  a  material 
man  agreed  to  furnisli  materials  to  a  contractor,  if  the  o-ft-ner  with  the  consent  of 
the  contractor  would  retain  control  of  sufficient  funds  due  the  latter,  to  protect  him, 
he  was  not  obliged  to  wait  until  the  building  was  complete  before  recovering  on  the 
contract.^  A  contract  continued  through  five  years  without  an  accounting  as  to 
receipts  and  disbursements,  though  legally  due  and  not  because  of  a  failure  in  this 
regard,  must  continue  in  operation  until  a  settlement  is  had  between  the  parties. ^° 
Where  a  contract  provided  that  plaintiff  should  receive  one-half  the  profits  above 
a  certain  price  on  a  sale  of  property  made  by  him  for  defendant,  recovery  cannot 
be  had  until  the  proceeds  are  reduced  to  money  or  defendant  has  so  appropriated 
them  as  to  constitute  a  complete  equivalent  to  him  of  their  money  value.^^  ^\^^ere 
a  contract  was  partly  written  and  partly  oral,  and  the  o^^mer  had  made  representa- 
tions on  which  the  other  relied  but  which  were  misleading  as  to  the  amoimt  of 
work  to  be  done,  and  the  work  required  more  time  than  was  contemplated,  but  was 
accepted,  the  time  for  completion  was  impliedly  and  necessarily  extended.^^  If 
anything  remains  to  render  a  contract  binding,  it  is  deemed  executed  at  the  place 
where  the  last  act  necessary  was  done.^*  The  contract  only  remains  in  force  until 
superseded  by  a  later  and  inconsistent  one,  whether  written  or  parol.^* 

(§4)     7.  Terms  as  to  compensation.^^ — If  a  contract  does  not  fix  the  compen- 


2.  Culver   V.   CaldweU    (Ala.)    34   So.    13. 

3.  Flather  v.  Economy  Slugging  Mach. 
Co.,   71    N.   H.    398. 

4.  Where  a  contract  for  the  manufac- 
turing and  delivery  of  railroad  cars  stated 
a  certain  time  for  delivery,  with  a  forfeit 
for  over  time,  subject  however,  to  delay 
for  unavoidable  contingencies,  the  maker 
was  not  liable  for  delay  for  such  unavoid- 
able contingency,  since  the  time  specified 
In  the  earlier  part  of  the  contract  was  mod- 
ified by  the  provision  regarding  delay — 
Pressed  Steel  Car  Co.  v.  Eastern  Ry.  Co. 
(C.   C.  A.)    121   Fed.   609. 

5.  Where  a  building  contract  required  the 
owner  to  furnish  materials  and  shop  draw- 
ings, and  inspectors  for  the  work  were  ap- 
pointed on  approval  of  the  shop  drawings, 
the  owner  could  not  complain  of  delay  In 
notifying  him  of  the  appointment  of  such 
Inspectors  in  an  action  by  the  building  con- 
tractors for  delay  in  the  furnishing  of  the 
materials — Christopher  &  S.  Architectural 
Iron   &   Foundry   Co.   v.   Yeager,    202   111.    480. 

6.  Where  an  architect  was  also  the  own- 
er's superintendent  and  on  complaint  of  the 
contractor  because  of  delay  by  other  con- 
tractors, he  assured  the  contractor  that  he 
should  have  had  additional  time  and  agreed 
to  the  amount  of  time  demanded,  a  de- 
mand for  such  time  In  writing  was  unnec- 
essary— Vanderhoof  v.  Shell.  42  Or.  578,  72 
Pac.  126. 

7.  Where  a  contract  provided  for  the  con- 
duct   of    litigation    in    consideration    of    con- 


Roussel   v.   Mathews.    171    N.   Y.   634. 
Derouen   v.    Romero    (La.)    34    So.    415. 
Rogers-Ruger  Co.  v.  McCord,  115  Wis. 


veyance  of  certain  land  within  a  certain 
time  and  in  default  thereof  of  payment  of 
a  certain  amount  of  money,  when  the  time 
had  expired  for  conveyance,  the  party  obli- 
gating himself  to  convey  could  no  longer 
perform  in  that  manner,  but  became  abso- 
lutely liable  for  the  payment  of  the  amount 
of  money  specified — Ehrich  v.  Durkee  (Colo. 
.\pp.)    72   Pac.   814. 

8.  Vanderhoof  v.  Shell,  42  Or.  578.  72  Pac. 
126. 

9. 

10. 

11. 
261. 

12.  Malloy  V.  Lincoln  Cotton  Mills,  132 
N.    C.    432. 

13.  Emerson  Co.   v.   Proctor.   97  Me.    360. 

14.  Copeland    v.    Hewett,    96    Me.    525. 

15.  News  carrier's  contract — Stewart  Law 
&  Collection  Co.  v.  Krambs  (Cal.)  73  Pac. 
854.  Contract  allowing  one  railway  com- 
pany to  cross  tracks  of  the  other  as  to 
alternative  conditions  for  payment  of  a  cer- 
tain sum  or  interest  on  such  sum  annually 
— Stockton  v.  Railway  Co.  (Fla.)  33  So.  401. 
Contract  as  to  rate  of  w^ages  and  reim- 
bursement for  board  of  employes — Hilbrand 
V.  Dininny,  73  App.  ,Div.  (N.  Y.)  511.  Con- 
tract for  electric  lights  as  to  discounts — 
Missouri-Edison  Electric  Co.  v.  Hat  &  Fur 
Co.,  94  Mo.  App.  543.  Mode  of  payment  un- 
der terms  of  instalment  contract — Caryl  v. 
Kellogg  (Colo.  App.)  68  Pac.  114.  Particu- 
lar   clauses    in    contract    for    furnishings    gas 


§  41 


COMPENSATION. 


663 


sation  definitely,*'  or  if  the  benefits  received  are  without  its  terms  or  are  due  to  alter- 
ations, the  measure  of  compensation  is  the  value  of  benefits  received,"  but  if  the  con- 


as  to  prices — Muncle  Natural  Gas  Co.  v.  City 
of  Muncie  (Ind.)  66  N.  E.  436.  The  word 
"profits"  in  a  contract  with  an  actress  for 
two  seasons  for  a  weekly  salary,  and  a 
commission  on  "profits"  in  excess  of  a  cer- 
tain sum,  means  the  difference  between  re- 
ceipts and  running  expenses  without  re- 
gard to  the  production  account — Mayer  v. 
Nethersole,  71  App.  Div.  (N.  Y.)  3S3.  Un- 
der an  agreement  to  board  plaintiff  and  an 
assistant  while  they  were  drilling  a  well 
for  defendant,  defendant  was  not  entitled 
to  recover  for  board  furnished  after  the 
time  stated  within  the  contract,  where  it 
appears  that  such  statement  was  uncertain 
and  amounted  to  a  mere  matter  of  opinion 
on  the  part  of  the  other  party  as  to  the 
r  time  required  for  the  drilling  of  the  well 
— Butler   V.    Davis    (Wis.)    96    N.    W.    561. 

Conditions  precedent  to  payment. — Neces- 
sity of  final  certificate  of  approval  of  con- 
struction given  by  New  York  Board  of  Un- 
derw^riters  to  contractor  equipping  a  fac- 
tory with  fire  sprinklers,  as  to  final  pay- 
ment— New  York  &  N.  H.  Automatic  Sprink- 
ler Co.  V.  Andrews,  173  N.  Y.  25.  "^'here  a 
building  contract  required  a  certificate  to 
be  issued  to  the  contractor  by  the  architect 
as  an  order  on  the  owner  to  pay  part  of  the 
value  of  the  labor  and  material  to  a  certain 
time,  the  making  of  such  certificate  and 
sending  it  to  the  owner  who  objected-  to  the 
allowance  therein  and  returned  it  to  the 
architect  did  not  amount  to  an  issuance, 
there  being  no  delivery  to  the  contractor — 
Wear  Bros  v.  Schmelzer,  92  Mo.  App.  314. 
A  provision  in  a  building  contract  requiring 
that  contractors  shall  make  no  claim  for 
extra  work  unless  pursuant  to  architect's 
order,  and  that  notice  of  claim  shall  be 
made  to  him  in  writing  within  ten  days  of 
the  beginning,  the  order  and  not  the  no- 
tice is  necessary  to  recovery — Teakle  v. 
Moore  (Mich.)  91  N.  W.  636.  Where  specifi- 
cations in  a  building  contract  required  the 
contractor  to  allow  a  certain  amount  for 
one  item,  and  the  materials  used  on  that 
item  amounted  to  a  much  larger  amount,  on 
which  the  owner  was  credited  with  the  first 
amount,  that  the  seller  of  the  materials 
filed  a  lien  on  the  building  for  the  balance, 
will  constitute  no  defense  against  the  con- 
tractor's claim  for  final  payment,  on  the 
ground  that  under  the  contract  plaintiff 
was  not  entitled  to  final  payment  until  the 
owner  was  satisfied  that  no  liens  existed 
against  the  property — Vanderhoof  v.  Shell, 
42  Or.   578,   72  Pac.  126. 

Partlcnlar  building  or  material  contracts. 
— See  "Building  and  Construction  Contracts." 
Instalment  contract  for  construction  of  a 
building  as  to  payments  during  progress 
of  the  work — Mullin  v.  Langley,  37  Misc. 
(N.  Y.)  789.  Where  a  contract  for  material 
set  out  an  Itemized  statement  thereof  and 
the  price,  one  party  was  bound  to  furnish 
only  the  amount  specifically  mentioned  and 
the  other  was  bound  to  pay  only  a  reason- 
able compensation  for  additional  material 
furnished  with  his  consent — Libby  v.  Deake, 
97  Me.  377.  Where  a  contract  for  an  en- 
tire piece  of  work  is  made  with  one  who 
has    authority   under   his   contract   with    the 


owner  only  to  incur  expenses  sufl3cient  to 
satisfy  a  mortgage  which  he  holds  on  the 
property,  the  contractor  may  nevertheless 
recover  his  full  amount  from  such  person 
where  he  did  not  know  of  the  limits  as  to 
expenditures — Hill  Bros.  v.  Bank  (Mo.  App.) 
73  S.  W.  307.  Where  a  building  contract 
provided  specifications  as  to  the  manner  in 
which  the  work  should  be  done,  as  to  ex- 
tra work  required  by  conditions  arising 
after  the  work  had  begun,  the  contractor 
was  entitled  to  rely  upon  such  specifications, 
and  if  they  work  incorrectly  and  render  ex- 
tra work  necessary,  he  was  entitled  to  re- 
cover— Langley  v.  Rouss,  116  N.  Y.  St.  Rep. 
1082.  Where  a  construction  contract  with 
specifications  provides  that  extras  shall  not 
be  paid  for  unless  the  price  was  agreed 
upon  in  writing  before  the  work  was  done, 
recovery  may  be  had  for  extra  work  though 
there  was  no  writing,  where  the  specifica- 
tions for  that  particular  work  contained  no 
such  pro-\'ision — Teakle  v.  Moore  (Mich.)  91 
N.  W.  636.  Where  a  building  contract  pro- 
vides that  if  any  evidence  of  a  lien  ap- 
peared against  the  contractor,  the  owner 
should  retain  sufficient  to  indemnify  him 
against  it,  the  owner  was  entitled  to  credit 
for  a  subcontractor's  Judgment  in  enforcing 
a  lien  against  the  property  In  an  action 
against  him  by  the  contractor — Wear  Bros. 
V.  Schmelzer,  92  Mo.  App.  314.  Where  a 
contractor  receives  and  disposes  of  all  the 
materials  for  a  certain  work,  under  a  con- 
tract to  pay  one-half  in  cash  and  the  rest 
in  bonds  secured  by  mortgage  at  market 
value,  and  fails  to  complete  the  contract, 
tlie  materialmen  may  demand  the  full  com- 
pensation— Cameron  v.  Railroad  Co.,  IDS  La. 
83.  Where  a  contract  for  an  excavation  pro- 
vides that  It  will  be  necessary  to  pile  the 
earth  removed  because  of  the  presence  of 
quick  sand,  the  contractor  is  entitled  to  com- 
pensation for  all  earth  necessarily  removed 
at  the  agreed  price,  though  part  of  It  con- 
sisted of  earth  which  flowed  Into  the  ex- 
cavation from  the  sides  during  the  process 
of  the  work — Carroll  Contracting  Co.  v. 
Roofing  &  Paving  Co.  (Mo.  App.)  71  S.  W. 
1119. 

16.  Where  a  contract  for  yearly  rental 
of  hydrants  to  a  city  provides  that  the 
price  shall  not  be  more  than  $50,  the  value 
of  the  use  Is  the  criterion  of  compensation 
in  the  absence  of  any  further  agreement — 
City  of  Valparaiso  v.  Water  Co.,  30  Ind.  App. 
316.  Where  there  was  no  agreement  as 
to  the  compensation  an  engineer  should  re- 
ceive In  superintending  the  work  of  placing 
electric  wires  under  ground  for  several  elec- 
tric companies,  and  the  contractor  was  to 
receive  monthly  payments  on  estimates  fur- 
nished by  engineer,  it  will  be  presumed  as 
benefits  accrued  with  progress  of  the  work 
that  the  compensation  of  the  engineer  was 
apportionable  and  he  was  entitled  to  re- 
cover for  services  rendered  during  progress 
of  the  work  and  before  Its  completion — 
Wagner  v.  Illuminating  Co.  (Mo.)  75  S.  W. 
966. 

17,  Relchert  v.  Brown.  38  Misc.  (N.  Y.) 
782;  Barnes  v.  District  of  Columbia.  37  Ct. 
CI.    342;   Isaacs   v.   Dawson,   70   App.   Div.    (N. 


664 


CONTRACTS. 


§  41 


tract  stipulates  a  certain  compensation,  such  compensation  may  be  recovered  though 
oreater  than  the  real  value/*  and  a  claim  for  extra  work  on  a  contract  cannot  be 
made  where  it  does  not  appear  whether  there  was  an  express  or  implied  consent  of 
the  other  party  thereto.^^  Where  a  party  contracting  to  perform  certain  work  is 
required  to  meet  extra  expenditures  not  contemplated  by  the  contract  through  the 
action  of  the  other  party,  he  is  entitled  for  reimbursement  therefor^^o  ]^^^  unfore- 
seen expenses  occurring  which  were  not  contemplated  by  the  conditions  of  the  con- 
tract need  not  be  met  by  the  other  party  in  the  absence  of  an  express  agreement  so 
to  do.^^  Work  and  material  made  necessary  because  of  the  defective  manner  in 
which  a  contract  was  performed  will  not  entitle  the  contractor  to  extra  compensa- 
tion.^'^ Wliere  by  reason  of  the  acts  of  one  of  the  parties  to  a  contract,  the  other 
is  prevented  from  performance,  he  may  still  recover  at  the  contract  price  for  the 
portion  of  the  contract  completed.-^  To  recover  for  work  anticipated  under  the 
terms  of  the  contract  as  necessary  in  a  certain  contingency,  it  must  appear  that  the 
contingency  occurred.^*  An  express  promise  to  pay  for  services  must  be  shown.^'* 
Where  the  rate  for  publication  of  legal  notices  in  a  city  was  fixed,  that  the  cus- 
tomary rate,  during  a  long  course  of  dealing  before  passage  of  the  charter,  was 
greater,  will  not  Justify  its  allowance.^^  One  who  solicits  work  for  another  for  a 
portion  of  the  net  profits  thereon  is  entitled  to  no  compensation  where  the  latter 
settles  an  action  for  services  at  a  loss  unless  it  is  shown  that  recovery  might  have 


Y.)  232.  If  a  contractor  is  required  to  fur- 
nish material  and  do  work  outside  his  con- 
tract, he  may  recover  a  reasonable  sum  as 
provided  in  addition  to  the  actual  cost  of 
such  extra  materials  and  work — Venable 
Const.  Co.  V.  United  States,  114  Fed.  763. 
Where  a  contract  is  for  an  aggregate  price 
merely,  the  measure  of  value  for  extra  work 
and  materials  is  the  cash  market  value  and 
not  the  price  paid  for  similar  materials 
and  labor  under  the  main  contract — Board 
of  Commissioners  of  Fulton  County  v.  Gib- 
son, 158  Ind.  471.  A  manufacturer  may  re- 
cover the  increase  in  cost  of  manufacture 
of  a  sample  machine  due  to  changes  in  plans, 
following  an  oral  agreement  subsequent  to 
the  original  written  one,  since  the  law  Im- 
plies a  promise  therefor — Flather  v.  Economy 
Slugging  Mach.  Co.,  71  N.  H.  398.  Where  a  con- 
tract provided  for  the  setting  of  terra  cotta 
blocks  in  the  floors  of  a  building  except 
as  to  the  ground  floor,  where  there  was  a 
basement  and  a  cellar  also,  the  basement 
being  referred  to  as  the  basement  or  ground 
floor,  the  setting  of  blocks  on  the  ground 
floor  by  the  contractor  under  the  express 
direction  of  his  superior  was  extra  work  for 
which  he  was  entitled  to  recover  in  addi- 
tion to  compensation  named  in  his  con- 
tract— Isaacs  V.  Dawson,  70  App.  Div.  (N. 
Y.)    232. 

Compare Where   It   appears   that   part    of 

the  work  done  under  a  certain  contract  was 
not  contemplated  In  the  original  contract 
but  was  accepted  by  the  other  party,  the 
builder  was  entitled  to  recover  for  such 
work  at  the  rate  he  was  paid  for  work 
originallv  contemplated — Malloy  &  Boggs  v. 
Cotton  Mill  Co..   132  N.  C.   432. 

18.  Niemoller  v.   Buncombe,   50   App.   Dlv. 
fN.  T.)    614. 

19.  Nlemeyer  v.  Woods,   72  App.  Dlv.   (N. 

Y.)    630. 

20.  Illinois    Cent.    Ry.    Co.    v.    Manion,    23 
Ky    U  R.  2267,  67  S.  W.   40.     Though  a  con- 


tract for  grading  a  city  street  provides  that 
the  engineer  was  the  contractor's  agent  in 
fixing  grades,  where  the  contractor  called 
attention  of  the  city  to  an  error  therein, 
and  was  directed  to  proceed  according  to 
the  engineer's  directions  regardless  of  his 
objection,  he  was  entitled  to  recover  for 
work  made  necessary  by  the  error — Becker 
V.  City  of  New  York,  77  App.  Div.  (N.  T.) 
635. 

21.  Expenses  of  Injunction  suit  to  pre- 
vent the  raising  of  a  sunken  vessel  by  a 
third  person,  incurred  by  one  who  had  con- 
tracted with  the  owner  for  that  work — 
Murphy  v.  Northern  S.  S.  Co.  (Mich.)  91 
N.  W.  142.  M^'here  specifications  submitted 
by  one  of  the  parties,  to  a  contract  for 
sinking  piers,  to  the  other,  show  the  char- 
acter of  the  different  strata  through  which 
the  work  was  to  be  done,  and  such  party 
hid  on  the  work  relying  on  such  specifica- 
tions. It  could  not  recover  damages  for  ex- 
tra work  because  of  a  necessity  of  remov- 
ing logs  in  excavation,  since  the  plans  only 
warranted  substantial  accuracy  and  did  not 
guarantee  the  conditions  to  be  as  repre- 
sented— Groton  Bridge  &  Mfg.  Co.  v.  Rail- 
way  Co.,    80   Miss.    162. 

22.  Vanderhoof  v.  Shell,  42  Or.  578,  72 
Pac.    126. 

23.  Pitts  V.  Davey,  40  Misc.  (N.  Y.)  96. 
One  ■who  has  contracted  to  do  work  on 
a  building  may  recover  for  the  portion  of 
the  work  done  which  was  to  be  paid  for 
in  instalments,  where  the  building  fell  while 
in  course  of  construction  through  the  negli- 
gence of  the  owner's  agents — Teakle  v. 
Moore  (Mich.)  91  N.  W.  636. 

21.  National  Contracting  Co.  v.  Com 
(Mass.)    66    N.    B.    639. 

25.  Patton  V.  Wells  (C.  C.  A.)  121  Fed. 
337. 

26.  People  ex  rel.  Smith  v.  Clarke,  7» 
App.  Div.    (N.   Y.)   78. 


§  4K 


COMPROMISE.    PERFORMANCE. 


665 


been  had  by  prosecution.^^  Where  by  a  contract  for  prosecution  of  a  claim  to  a 
Mexican  grant,  an  attorney  was  to  receive  as  compensation  one-tenth  of  the  land 
less  640  acres,  it  was  intended  that  that  amount  should  be  taken  from  his  tenth 
after  division.'^' 

(§  4)  J.  Terms  for  compromise  or  arbitration.^^ — An  arbitration  clause  in  a 
building  contract  on  which  a  bond  is  given  to  a  corporation  without  reference  to  its 
successors  or  assigns  does  not  apply  to  a  dispute  as  to  whether  such  bond  could  be 
assigned.'"  A  provision  in  a  building  subcontract,  that  disputes  regarding  the 
meaning  of  drawings  or  specifications  shall  be  decided  by  the  architect,  does  not 
cover  a  dispute  as  to  whether  certain  work  required  by  them  is  included  in  the 
subcontract.*^  Where  a  clause  of  a  building  contract  provides  for  reference  of  dis- 
putes to  certain  architects,  a  member  of  the  firm  of  architects  named,  who  was  in 
charge  of  the  work  and  recognized  by  the  parties,  though  his  name  did  not  appear 
in  the  firm  name,  is  a  proper  arbitrator  and  his  acts  are  binding  on  the  parties.^^ 
A  condition  in  a  contract  to  furnish  coal  to  a  city  for  a  certain  period  provided  that 
the  water  engineer  should  interpret  its  conditions  and  that  his  decision  in  case  of 
dispute  was  to  be  final  did  not  apply  to  the  question  whether  the  city  was  in  default 
because  of  nonpayment  of  instalments  on  the  contract.*' 

(§4)  K.  Terms  as  to  performance.^* — To  constitute  performance  or  comple- 
tion of  the  contract  it  must  reasonably  appear  that  benefits  received  by  one  party  re- 


27.  Comer  v.  niinois  Car  &  Equipment 
Co.,   108   La.   179. 

28.  Adams  v.  Hopkins   CCal.)    69   Pac.   228. 

29.  What  constituted  proper  subject  for 
arbitration  under  terms  of  building  contract 
— McClellan  v.  McLemore  (Tex.  Civ.  App.) 
70  S.  W.  224.  A  contract  providing  for 
liquidated  damages  for  delay  in  completion 
of  a  building,  and  that  alterations  must 
be  made  by  written  order  of  the  architect, 
the  value  of  the  work  to  be  computed  by 
him  and  added  to  or  taken  from  the  con- 
tract price  and  damages  for  delay  to  be 
determined  by  the  architect  or  by  arbitra- 
tion, does  not  require  that  the  damages 
caused  by  the  failure  to  complete  within 
the  limit  should  be  submitted  to  the  archi- 
tect or  the  arbitrator — Drumheller  v.  Amer- 
ican Surety  Co.,  30  Wash.  530,  71  Pac.  25. 
Where  a  contract  for  the  furnishing  of  ma- 
terials provides  for  arbitration  by  the  ar- 
chitects whose  decision  should  be  final,  a 
dispute  as  to  whether  the  subcontractor 
should  recover  for  all  materials  specified, 
though  he  had  not  delivered  the  whole 
amount  because  such  amount  was  rendered 
unnecessary  by  reason  of  rock  foundation 
being  found  sooner  than  was  anticipated, 
is  a  matter  of  dispute  within  the  arbitra- 
tion clause — Wymard  v.  Deeds,  21  Pa.  Super. 
Ct.   332. 

30.  Citizens'  Trust  &  Surety  Co.  v.  How- 
ell, 19  Pa.  Super.  Ct.  255. 

31.  Isaacs  v.  Dawson,  70  App.  DIv.  (N. 
T.)     232. 

32.  Wymard  v.  Deeds.  21  Pa.  Super.  Ct. 
332. 

33.  City  of  Baltimore  v.  Schaub  Bros.,  96 
Md.  534. 

34.  Contract  by  second  mortgagees  with 
lienors  for  foreclosure  and  settlement — Jones 
V.  Garrigues,  75  App.  Div.  (N.  Y.)  539.  Con- 
tract by  general  manager  of  railroad  com- 
pany for  construction  of  a  road  within  a 
stated  time  "so  as  to  be  successfully  op- 
erative,"   in    consideration    of    all    donations 


and  bonuses  given  to  the  company — Flana- 
gan Bank  v.  Graham,  4  2  Or.  403,  71  Pac. 
137.  Where  a  city  engineer  in  charge  of 
a  contract  for  construction  of  a  sewer  had 
reason  to  believe  that  part  of  the  sewer 
had  been  laid  on  the  wrong  grade,  and 
possessed  power  to  change  the  construction 
if  imperfect,  he  has  authority  to  require 
work  to  be  done  by  other  parties  if  the  con- 
tractor refuses  to  correct  the  defect  and 
such  action  does  not  amount  to  an  ousting 
of  the  contractor  from  the  work — Brown  v. 
City  of  Baton  Rouge,  109  La.  967.  A  con- 
tract for  aid  to  secure  consent  of  adjacent 
property  owners  to  the  erection  of  an  ele- 
vated railroad  loop,  giving  a  bonus  for  suc- 
cessful effort  in  locating  road,  could  not 
be  construed  to  make  the  right  to  receive 
such  bonus  conditional  on  passage  of  an 
ordinance  giving  the  right  to  build  the  en- 
tire loop,  where  part  of  it  was  already  con- 
structed when  the  contract  was  made  and 
various  ordinances  were  given  for  construc- 
tion of  remainder,  though  no  one  ordinance 
provided  for  construction  of  the  entire  loop 
— Union  Elevated  R.  Co.  v.  Nixon,  199  111. 
235. 

Extent  of  obligation;  terms  am  to  liabil- 
ity for  breaeli. — A  contract  to  furnish  beef 
to  the  men  working  for  a  contractor  In 
building  a  railroad  does  not  apply  to  the 
men  employed  by  subcontractor  under  it, 
where  he  is  also  building  part  of  the  road 
on  his  own  account — Fitzgerald  v.  First  Nat. 
Bank  (C.  C.  A.)  114  Fed.  474.  A  contract 
whereby  one  person  agrees  to  disclose  the 
whereabouts  of  another  so  as  to  enable  a 
third  person  to  capture  him  requires  the 
flrst  party  to  give  information  of  facts  actu- 
ally In  existence  which  will  lead  to  the  cap- 
ture or  enable  the  other  party  to  accom- 
plish it — Cash  V.  Southern  Exp.  Co.,  133  Ala. 
272.  An  agreement  between  a  manufacturer 
and  a  patentee  for  the  manufacture  of  cer- 
tain articles,  by  which  the  patentee  agreed 
to  protect   the  manufacturer  from  Infringe- 


66b 


CONTRACTS. 


§  4K 


suited  from  the  efforts  of  the  other  under  its  terms.^"    Where  parties  for  whom  cer- 
tain work  is  to  be  performed  have  as  good  means  of  knowing  of  the  completion  of  the 


ment  suits,  wiU  not  require  a  bond  of  In- 
demnity on  the  bringing  of  a  suit,  and  a 
failure  tlierein  will  not  amount  to  a  breach 
of  the  contract — National  Machine  &  Tool 
Co.  V.  Machinery  Co.,  181  Mass.  275.  In- 
surance by  railroad  employe  in  accident 
company,  the  premium  of  which  was  paid 
partly  by  the  employe  and  partly  by  the 
company,  and  acceptance  by  him  of  benefits 
thereunder  will  not  discharge  the  company 
from  liability  for  his  injuries  where  there 
Is  no  contract  by  which  he  agrees  to  accept 
the  Insurance  benefits  in  settlement  of  his 
claim  against  the  company — Dover  v.  Rail- 
way (Mo.  App.)  73  S.  W.  298.  It  is  no 
defense  to  an  action  to  recover  unpaid  in- 
stalments of  royalty  on  a  contract  for  the 
exclusive  privilege  of  running  an  observa- 
tion wheel  at  a  pleasure  resort,  that  dur- 
ing a  part  of  the  time  for  which  royalty 
was  demanded,  defendants  did  not  own  or 
run  the  wheel — Sommers  v.  Myers  (N.  J. 
Sup.)  54  Atl.  812.  Where  a  mortgagee 
ngrees  with  a  contractor  who  has  arranged 
to  build  houses  for  the  owner,  that  if  the 
contractor  will  complete  the  buildings  he 
wil!  retain  sufficient  money  coming  to  his 
hands  for  the  owner  and  instead  of  paying 
it  to  the  contractor  when  he  receives  it, 
pays  It  to  the  owner,  the  contractor  may 
collect  the  amount  from  the  mortgagee  un- 
der the  contract — Prata  v.  Green,  70  App. 
Div.  (N.  T.)  224.  A  contract  whereby  one 
agreed  with  the  guardian  of  a  minor  to  re- 
cover the  minor's  Inheritance  from  a  cer- 
tain estate  and  to  pay  all  fees  for  attor- 
neys employed  from  his  own  share  of  the 
fund  to  be  recovered  will  require  that  the 
claim  of  an  attorney  employed  should  be 
enforced  against  the  one  undertaking  the 
recovery  and  not  against  the  estate  of  the 
minor — Kersey  v.  O'Day  (Mo.)  73  S.  W.  481. 
A  contract  providing  for  erection  of  an  ice 
plant  and  for  acceptance  or  rejection  by 
the  other  party,  and  that  if  rejected  such 
party  should  permit  the  builder  to  enter 
and  remove  machinery  without  charge,  does 
not  limit  the  latter's  liability  for  failure  to 
fully  perform,  to  a  return  of  the  money  re- 
ceived for  construction  of  the  plant,  though 
it  provides  for  such  return  in  the  contract 
— Harrison  Bros.  v.  Murray  Iron  Works  Co.. 
96  Mo.  App.  348.  A  requirement  In  an  ad- 
vertisement for  bids  on  a  building,  that  the 
successful  bidder  shall  give  a  bond,  con- 
templates security  to  the  owner  for  per- 
formance of  the  contract  and  not  that  he 
must  perform  acts  which  he  is  not  other- 
wise required  to  perform  so  as  to  protect 
the  surety,  and  lie  is  not  required  to  accept 
the  bond  stipulating  that  he  give  immediate 
notice  in  writing  of  default  to  the  surety 
and  that  he  institute  any  suit  on  the  bond 
within  six  months  after  completion  of  the 
.(vork — Brown  v.  Levy  (Tex.  Civ.  App.)  69 
S.  W.  255.  A  contract  between  a  mill  com- 
pany and  a  water  company,  allowing  the  lat- 
ter to  take  a  certain  amount  of  water  from 
the  stream  and  providing  that  the  former 
should  not  lower  water  in  a  pond  below 
a  certain  level  unless  to  make  repairs. 
whereupon  notice  should  be  given  to  the 
water  company  which  should  without  delay 


at  its  cost,  construct  a  suitable  cofferdam, 
the  provision  for  such  dam  was  not  merely 
for  the  benefit  of  the  water  company  and 
the  dam  must  be  sufficient  to  allow  the  mill 
company  to  make  repairs — Paris  Milling  Co. 
V.  Paris  Water  Co.,  24  Ky.  L.  R.  1372,  71 
S.    W.    513. 

AVaiver  of  terms. — Either  party  may  waive 
a  provision  in  a  building  contract  so  far  as 
intended  for  his  benefit  which  requires  that 
a  claim  for  alterations  or  extra  work  shall 
be  first  described  in  writing  and  the  valua- 
tion agreed  upon  in  writing — Copeland  v, 
Hewett,  96  Me.  525.  Where  a  provision  in 
a  building  contract  required  that  the  ma- 
terials furnished  and  the  work  done  should 
satisfy  a  certain  architect  as  agent  of  the 
ow^ner.  he  had  authority  to  waive  a  pro- 
vision declaring  that  no  extra  work  should 
be  paid  for  witliout  an  itemized  estimate  by 
the  "contractor  and  the  architect's  written 
order  for  payment — Langley  v.  Rouss,  116 
N,  Y.  St.  Rep.  1082.  Oral  direction  and 
sanction  of  an  architect  to  the  performance 
of  extra  work  under  a  contract  requiring 
work  and  materials  to  conform  to  his  sat- 
isfaction acting  as  the  owner's'  agent,  will 
entitle  the  contractor  to  recover  for  such 
extra  work  without  the  architect's  certifi- 
cate, as  required  by  the  contract,  if  he  un- 
reasonably refused  to  provide  it — Langley  v. 
Rouss,  116  N.  Y.  St.  Rep.  10S2.  Failure  of  the 
architect  to  reject  promptly  defective  build- 
ing materials  or  construction,  as  work  pro- 
ceeds, amounts  to  a  waiver  of  such  defects 
under  a  condition  providing  that  materials 
used  and  work  done  shall  be  subject  to 
his  judgment — Siebert  v.  Roth  (Wis.)  95  N. 
W.  118.  Where  a  building  contract  re- 
quires payments  to  be  made  only  on  archi- 
tect's certificate,  and  provides  that  he  should 
have  power  to  reject  any  work  not  in  ac- 
cordance with  the  specifications,  and  should 
be  the  arbiter  of  disputes,  and  it  appears 
that  during  the  work  he  inspected  materi- 
als and  work  and  approved  them  and  made 
directions  for  the  correction  of  errors, 
which  were  complied  with,  and  afterward 
he  agreed  with  the  parties  to  accept  the 
contract  excepting  certain  alterations,  there 
was  a  w^aiver  of  the  requirement  of  his  final 
certificate  as  a  condition  precedent  to  a  suit 
for  final  payment — Vanderhoof  v.  Shell,  42 
Or.  578.  72  Pac.   126. 

35.  Where  several  reports  concerning  a 
mine  were  furnished  to  a  prospective  buyer, 
evidence  merely  that  he  became  the  pur- 
chaser, will  not  entitle  one  who  made  one 
of  the  reports  under  a  contract  for  certain 
compensation,  if  a  sale  is  effected  "by"  and 
"through"  his  report,  to  compensation — 
Wishon  V,  Great  Western  Min.  Co.,  29  Wash. 
355.  69  Pac.  1105.  Where  a  prospective  pur- 
chaser of  mineral  lands  saw  the  report  of  a 
geologist  whom  the  owner  had  engaged  to 
examine  It  as  to  its  value  under  a  contract 
for  compensation  in  case  his  report  should 
lead  to  a  sale  of  the  lands,  such  report  will 
be  deemed  to  have  indirectly  aided  the  sale 
if  it  was  in  the  purchaser's  mind  at  the 
time  of  sale  and  was  regarded  by  him  as 
a  means  for  future  sale — Wheeler  v.  Chest- 
nut. 95  Mo,  App.  546. 


§  4L 


ACCEPTANCE    OR   REJECTION. 


667 


contract  as  the  party  who  is  to  perform,  they  are  not  entitled  to  notice  of  such 
completion  in  the  absence  of  special  agreement.^*  Where  the  sale  of  a  business  in- 
cludes good  will,  the  sellers  may  re-engage  in  the  same  business  in  the  same  vicin- 
ity in  absence  of  an  agreement  not  so  to  do,  but  they  cannot  appeal  to  their  old 
customers  to  deal  with  them  or  not  to  deal  with  the  purchasers. •''^  A  contract  to 
rent  land  to  a  good,  reliable  tenant,  who  can  provide  himself  during  its  tilling  and 
can  plant  a  certain  amount  of  grain,  does  not  necessarily  bind  the  party  making  it, 
that  the  land  shall  in  any  event  be  put  into  crops,  but  only  to  furnish  a  tenant  able 
and  willing  to  put  in  the  crops. ^^  Where  a  contract  for  work  on  a  boiler  house  and 
engine  room  provided  that  it  should  be  performed  in  a  thorough  and  mechanical 
manner  and  water  tight,  subject  to  the  approval  of  the  architect,  the  construction 
was  to  be  water  tight  only  so  far  as  the  flowing  of  the  plant  would  produce  such 
result.""  A  provision  in  a  subcontract  for  a  building,  requiring  the  subcontractor 
to  omit  work  called  for  in  his  contract  or  to  do  extra  work  when  directed  by  the 
owners  or  architects,  for  a  deduction  from  the  contract  price  or  extra  pay  as  the 
case  might  be,  will  not  prevent  him  from  doing  extra  work.*"  Under  a  contract 
for  the  construction  of  a  sewer  providing  that  the  engineer  should  make  weekly 
allowances  for  work  done  reasonable  in  his  judgment  according  to  the  relative  diffi- 
culty of  the  work,  the  contractor  could  not  stop  work  in  difficult  ground  and  exca- 
vate in  ot^.er  places  in  order  to  recover  payment.*^  Where  a  contract  for  the  sale 
of  a  stage  line  called  for  payment  of  a  certain  amount  per  month  unless  an  opposi- 
tion line  was  operated,  the  purchaser  was  justified  in  refusing  payments  where  it 
appeared  that  other  vehicles  were  used  for  carrying  passengers  and  were  advertised 
as  a  stage  line,  and  succeeded  in  drawing  considerable  business  away  from  him.*" 
Where  a  contract  with  the  United  States  for  construction  provides  that  articles  will 
be  loaned  the  contractor  for  performing  the  contract,  to  be  returned  in  good  con- 
dition, or  replaced  if  lost  or  damaged,  he  cannot  be  required  to  replace  articles  be- 
cause of  ordinary  wear,  but  only  because  of  damage  in  excess  of  wear.*^  Where 
specifications  in  a  building  contract  for  the  United  States,  recited,  as  to  an  alterna- 
tive bid,  that  the  work  must  be  performed  in  compliance  with  drawings  furnished, 
"including  all  necessary  changes  on  account  of  said  proposed  construction,"  they 
were  for  the  benefit  of  the  government  and  it  had  the  right  to  require  use  of  iron 
beams,  though  they  were  not  usually  required  in  such  buildings  without  liability 
for  extra  compensation.** 

(§  4)  L.  Terms  for  acceptance  or  rejection  of  performance. — A  provision  in  a 
contract  that  one  party  shall  determine  all  questions  of  performance  will  not  entitle 
him  to  reject  performance  without  reason  and  the  other  party  may  raise  the  ques- 
tion of  substantial  performance  ;*^  but  if  performance  is  to  be  subject  to  the  accept- 
ance of  a  certain  person,  his  right  of  rejection  in  good  faith  is  absolute.*®     Where 


36.  Drew  v.  Goodhue,  74  Vt.  436. 

37.  Zanturjian    v.    Boornazian    (R.    I.)     55 
Atl.    199. 

38.  Barr  v,  Cardiff   (Tex.   Civ.  App.)    75   S. 
W.   341. 

39.  Dwyer    v.    New    York,     77    App.     Div. 
(N.  Y.)   224. 

40.  Isaacs    v.    Dawson,    70    App.    Dlv.     (K. 
Y.)   232. 

41.  National   Contracting  Co.   v.   Common- 
wealth   (Mass.)    66   N.  E.   639. 

42.  Monroe    v.    "Wilson,    29    Wash.    121,    69 
Pac.   633. 

43.  United    States    v.    Mcintosh,    117    Fed. 
963. 


44.  Miles  v.  United   States,    113   Fed.    1011. 

45.  Schliess  v.  Grand  Rapids  (Mich.)  90  N. 
W.  700. 

4G.  Barrett  v.  Coal  Co.,  51  W.  Va.  416.  En- 
g*ineer  as  arbiter  of  railroad  construction  con- 
tract— North  American  Ry.  Const.  Co.  v.  R. 
E.  McMath  Surveying  Co.  (C.  C.  A.)  116  Fed. 
169.  Conclusiveness  of  architect's  certificate 
— Heberleln  v.  "Wendt,  99  111.  App.  506;  Perry 
V.  Levenson,  82  App.  Div.  (N.  Y.)  94.  Where 
a  contract  for  street  paving  is  subject  to  the 
approval  of  the  board  of  public  works,  their 
decision  is  binding  as  to  its  rejection,  unless 
it  appears  that  they  acted  unreasonably,  ar- 
bitrarily or  fraudulently — Brownell  Imp.  Co. 
V.  Critchfield.  197  111.  61. 


668 


CONTRACTS. 


§   <M 


a  construction  contract  provides  that  the  right  of  final  acceptance  or  rejection  could 
not  be  waived  at  any  time  during  progress  of  the  work,  the  failure  of  the  contractor 
to  object  while  on  the  ground  during  progress  of  the  work  did  not  amount  to  an 
acceptance.*^ 

(§4)  M.  Terms  for  election  under  the  contract  and  its  exercise. — Where  two 
joint  tenants  after  judgment  in  partition  agreed  with  the  judgment  creditors  holding 
a  lien  on  the  interest  of  the  other  tenant  that  he  would  purchase  and  hold  as  trustee 
for  them  and  that  if  at  the  end  of  a  year  the  property  had  not  been  sold,  they  might 
elect  to  buy,  giving  him  a  certain  amount  or  that  he  might  buy  from  them  at  a  cer- 
tain amount,  the  judgment  creditors  were  required  to  elect  whether  they  would 
buy  the  entire  property  at  the  expiration  of  the  year  or  within  a  reasonable  time/'* 
Where  a  contract  for  work  provided  that  it  should  be  done  in  a  workmanlike  man- 
ner, but  provided  two  alternative  methods,  the  contractor  was  not  required  to  use 
one  of  such  methods,  but  was  allowed  to  choose  whichever  of  the  two  would  be  most 
likely  to  insure  the  desired  result.*®  After  election  under  conditions  in  a  contract 
giving  that  right,  and  performance  in  accordance  with  such  election,  a  party  can- 
not rescind  his  action  and  choose  the  other  alternative.^" 

§  5.  Conflict  of  laws.^^ — A  contract  will  depend  for  its  validity  and  construc- 
tion upon  the  law  of  the  place  where  it  is  made,^^  unless  contrary  to  the  public 
policy  or  morals  of  the  state  where  it  is  sought  to  be  enforced,^^  or,  unless  by  its 
terms,  it  is  to  be  performed  elsewhere,^*  or  unless  it  refers  to  real  property  when 


47.  Brownell  Imp.  Co.  v.  Critchfleld,  197 
in.  61. 

48.  Turner  v.  Baldwin.  81  App.  Div.  (N. 
T.)    639. 

49.  Independent  School  Dist.  v.  Swearingin 
(Iowa)   94  N.  W.  206. 

50.  Gloe  V.  Chicago.  R.  I.  &  P.  Ry.  Co. 
(Neb.)  91  N.  W.  547.  "SVhere  creditors,  after 
Judgment  for  partition  sale,  acquiesced  ift  a 
purchaser's  retaining  property  for  fifteen 
months  after  expiration  of  the  year,  they 
could  not  elect  to  take  the  property  so  as 
to  bind  the  purchaser — Turner  v.  Baldwin. 
81  App.  Dlv.  (N.  T.)   639. 

51.  See  further  the  title  Conflict  of  Laws. 

52.  In  re  St.  Paul  &  K.  C.  Grain  Co. 
(Minn.)  94  N.  W.  218;  Bath  Gaslight  Co.  v. 
Rowland.  84  App.  Div.  (N.  Y.)  563;  Emerson 
Co.  V.  Proctor,  97  Me.  360.  Validity  of  terms 
of  a  contract  as  to  interest — Kroegher  v. 
Calivada  Colonization  Co.  (C.  C.  A.)  119  Fed. 
641.  Form  and  solemnity  in  execution — 
Roubicek  v.  Haddad,  67  N.  J.  Law,  522.  Con- 
tract to  sell  lands  as  governed  by  statute  of 
frauds — Goldstein  v.  Scott,  76  App.  Div.  (N. 
Y.)  78.  Life  insurance  policy — Franklin  Life 
Ins.  Co.  V.  Galligan  (Ark.)  73  S.  TV.  102. 
Statutory  provisions  of  the  state  cannot  be 
avoided  in  an  insurance  policy  by  a  provision 
adopting  the  laws  of  another  state — Albro 
v.  Manhattan  Life  Ins.  Co..  119  Fed.  629;  Born 
v.  Home  Ins.  Co.  (Iowa)  94  N.  W.  849;  Pietri 
v.  Seguenot.  96  Mo.  App.  258.  However,  it 
has  been  held  that  an  application  for  life 
insurance  in  a  New  York  company  made  in 
the  state  of  Washington  providing  that  it 
shall  be  construed  according  to  the  laws  of 
New  York,  and  a  policy  issued  thereon  recit- 
ing the  same  condition,  will  render  the  con- 
tract of  Insurance  a  new  York  contract  gov- 
erned by  its  laws — Mutual  Life  Ins.  Co.  v. 
Hill  (C.  C.  A.)  118  Fed.  708.  Contract  of 
shipment — Herf  &  F.  Chemical  Co.  v.  Lacka- 


wanna Line  (Mo.  App.)  73  S.  W.  346.  Where 
a  contract  between  the  officers  of  a  New 
York  corporation  and  other  parties,  to  share 
in  profits  from  construction  and  equipment 
of  a  railroad,  was  made  without  making 
the  railroad  company  a  party,  and  after- 
ward the  company  was  consolidated  with  an- 
other organized  under  the  laws  of  Pennsyl- 
vania, the  contract  though  void  In  the  latter 
state  may  be  enforced  there  as  between  the 
parties,  where  It  Is  valid  In  New  York — 
Rumsey  v.  New  York  &  P.  R.  Co..  203  Pa. 
579.  Sale  of  liquors — P.  Schoenhofen  Brew. 
Co.  V.  Whipple  (Neb.)  89  N.  W.  751;  J.  J. 
Eager  Co.  v.  Burke,  74  Conn.  534;  Bluthenthal 
V.  McWhorter.  131  Ala.  642.  Purchase  of 
stock — Gaylord  v.  Duryea,  95  Mo.  App.  574 
See  ante.  p.  560,  note  61. 

53.  Parker  v.  Moore  (C.  C.  A.)  115  Fed. 
799;  Palmer  v.  Palmer  (Utah)  72  Pac.  3. 
Marriage  settlement  void  in  one  state  be- 
cause of  marriage  witliin  a  year  after  di- 
vorce will  not  be  enforced  there  though  valid 
in  state  where  made — Wood  v.  Wood's  Es- 
tate. 137  Cal.  148,  69  Pac.  981.  An  indorse- 
ment and  assignment  in  another  state  of  a 
certificate  of  deposit  in  payment  of  losses  at 
gambling,  will  not  be  void  even  against  in- 
nocent purchaser  In  the  state,  where  It  Is 
attempted  to  be  enforced,  where  the  law  of 
the  other  state  is  not  so  offensive  or  shock- 
ing to  the  morality  of  the  state  of  suit  as  to 
make  it  necep.sary  to  apply  the  law  of  the 
forum — Sullivan  v.  German  Nat.  Bank  (Colo. 
App.)    70  Pac.   162. 

54.  Born  v.  Home  Ins.  Co.  (Iowa)  94  N.  W. 
S49;  Farmer  v.  Etheridge,  24  Ky.  L.  R.  649. 
09  S.  W.  761.  Effect  of  statute  of  frauds — 
Jones  V.  National  Cotton  Oil  Co.  (Tex.  Civ. 
App.)  72  S.  W.  248.  Contract  for  sale  of 
gambling  device — Price  v.  Burns.  101  111.  App. 
418.  Promissory  note — Hewitt  v.  Bank  of 
Indian  Territory  (Neb.)   92  N.  W.  741. 


§  6 


MODIFICATION.      MERGER. 


66y 


the  law  of  the  situs  of  the  property  will  control.'^''  If  a  contract  of  a  married  wo- 
man is  valid,  where  made  and  to  be  performed,  it  is  valid  everywhere,  unless  she 
is  domiciled  in  a  state  where  the  law  imposes  a  total  incapacity  on  the  part  of 
married  women  to  a  contract.''^  Where  a  contract  was  sent  from  Maryland  to  a 
corporation  in  Jlaine,  signed  by  the  party  sending,  and  was  there  signed  by  the  cor- 
poration on  assenting  to  the  proposition  and  returned  by  mail,  an  acceptance  was 
complete  when  the  contract  was  deposited  and  it  became  a  ]\Iaine  contract.^^  Notes 
executed  in  Indian  Territory  and  payable  in  Arkansas  will  be  regulated  by  the  laws 
of  the  latter  state,  since  such  laws  prevail  in  Indian  Territory.**®  A  statute  making 
members,  agents,  and  employes  of  a  corporation  liable  for  its  debts  where  it  does 
business  within  the  state  without  complying  with  its  laws  does  not  apply  to  con- 
tracts made  without  the  state  giving  the  corporation  title  to  lands  in  the  state.^" 
The  law  of  the  forum  governs  as  to  the  remedy  on  foreign  contracts.®" 

§  6.  Modification  and  merger  of  contracts. — A  change  or  merger  may  take 
place  when  there  is  an  accord  and  satisfaction  of  a  pre-existing  contract  liability,®^ 
or  a  novation,®^  or  release,"'  may  work  a  similar  result. 

Modification.^*^ — Stipulations  in  a  building  contract  limiting  weekly  payments 
may  be  waived  as  between  contractor  and  subcontractor.®'  Modification  of  a  con- 
tract cannot  be  made  without  the  actual  consent  of  both  parties  to  the  change.®' 
The  compensation  of  a  continuing  contract  cannot  be  changed  without  notice.®^ 
That  alterations  of  a  building  contract  were  made  without  the  written  order  of  the 
architect  as  required  will  not  prevent  recovery,  where  the  owner  was  present  and 
consented  to  the  alterations.®*  Acceptance  of  a  modified  proposition  is  legally  a 
rejection  of  the  original  and  where  a  new  proposition  is  substituted  for  a  contract 
acceptance  by  the  other  party  must  be  shown.®^  A  valid  oral  contract  is  not  af- 
fected by  an  attempt  to  execute  a  void  written  contract  in  its  stead.'"*     An  agree- 


55.  Where  a  contract  concerned  Immov- 
able property  In  another  state  and  was  made 
between  two  corporations  of  that  state,  and 
that  It  had  been  declared  illegal  by  the  high- 
est court  of  that  state,  it  will  not  be  enforc- 
ed in  New  York — Bath  Gaslight  Co.  v.  Row- 
land, 84  App.  Div.  (N.  Y.)  563.  The  capacity 
of  husband  and  wife  to  deal  with  each  other 
with  regard  to  immovable  property  in  Louisi- 
ana, must  be  determined  by  tlie  laws  of  that 
state — Rush  v.  Landers,  107  La.  549,  57  L.  R. 
A.  353.     See  ante,  p.  564,  §  7. 

56.  Young  V.  Hart  (Va.)   44  S.  E.  703. 
67.     Emerson  Co.  v.  Proctor,  97  Me.  360. 
58.     Clark  v.   Porter,   90  Mo.  App.   143. 

50.     Goldberry  v.  Carter  (Va.)   41  S.  E.  858. 

60.  Young  V.  Hart  (Va.)  44  S.  E.  703; 
Thompson  v.  Traders'  Ins.  Co.,  169  Mo.  12; 
Interstate  Sav.  &  Loan  Ass'n  v.  Badgley,  115 
Fed.  390;  Crebbin  v.  Deloney,  70  Ark.  493. 
See,  further,  Conflict  of  Laws,  p.  564,  §  8. 

61.  See  Accord  and  Satisfaction. 

62.  See  Novation. 

63.  See  Releases. 

64.  Modification  of  contract  without  his 
consent  as  discharging  surety,  see  Surety- 
ship. 

What  constituted  a  modification  of  the 
original  contract  for  the  drilling  of  a  well — 
Wendling  v.  Snyder,  30  Ind.  App.  330.  Modi- 
fication of  agreement  for  purchase  of  mining 
claim — Sherman  v.  Sweeny.  29  Wash.  321,  69 
Pac.  1117.  Alterations  within  terms  of  a 
contract  with  the  commonwealth  for  a  sewer 
providing  that  in  certain  contingencies  the 
engineer   In  charge  might  order  certain  al- 


tei^tlons  in  work  or  materials — National 
Contracting  Co.  v.  Commonwealth  (Mass.)  66 
N.  E.  639.  Modification  of  a  contract  between 
a  manufacturer  and  owner  for  introduction 
of  the  former's  goods  into  the  territory  cov- 
ered by  their  business — L.  N.  Brunswig  & 
Co.  v.  Wm.  S.  Merrell  Chemical  Co.  (La  )  34 
So.  417.  A  construction  contract  providing 
that  further  details  to  fully  explain  the  gen- 
eral drawings  will  be  furnished  the  contract- 
or at  the  proper  time  during  performance  of 
the  work,  and  that  such  drawings  and  speci- 
fications are  intended  to  cover  a  complete 
and  first  class  construction,  anything  omitted 
to  be  done  by  the  contractor  without  extra 
charge,  will  not  authorize  a  change  in  the 
plans  by  the  architect — Dwyer  v.  New  York, 
77  App.  Div.   (N.  Y.)  224. 

65.  O'Dwyer  v.  Smith,  38  Misc.  (N.  T.) 
136. 

66.  Farmers'  Loan  &  Trust  Co.  v.  North- 
ern Pac.  R.  Co.  (C.  C.  A.)  120  Fed.  873;  J.  K. 
Armsby  Co.  v.  Blum,  137  Cal.  552.  70  Pac. 
669.  Evidence  of  a  proposal  for  a  change  in 
terms  for  delivery  of  goods  under  a  con- 
tract without  an  acceptance  will  not  show  a 
modification — J.  K.  Armsby  Co.  v.  Blum,  137 
Cal.  552,  70  Pac.  669. 

67.  Contract  for  board — Rule  v.  McGregor, 
115  Iowa,  323. 

68.  Perry  v.  Levenson,  82  App.  Div.  (N. 
Y.)  94. 

69.  Kimbark  v.  Illinois  Car  &  Equipment 
Co.,  103  111.  App.   632. 

70.  Word  V.  Kennon  (Tex.  Civ.  App.)  76 
S.  W.  365. 


670 


CONTRACTS. 


§6 


ment  concerning  the  use  of  a  note  and  mortgage  executed  by  one  of  the  parties  to 
the  other  mav  be  changed  by  mutual  consent,  where  there  was  no  attempt  to  sub- 
stitute a  different  debt  for  the  one  secured  or  a  new  consideration  for  one  that  had 
failed."  Where  a  contract  provides  against  alterations  in  the  work  unless  on 
written  order  of  the  architect,  no  such  order  is  necessary  for  a  change  in  the  parties 
doing  the  work.^*  There  must  be  a  valuable  and  sufficient  consideration  for  the 
change.'*  A  change  in  a  contract  due  to  partial  failure  of  consideration  is  founded 
on  a  good  consideration,  and  the  contract  as  modified  may  be  enforced.'*  The  au- 
thorities differ  as  to  modification  of  a  written  contract  by  a  subsequent  oral  agree- 
ment, the  differences  being  generally  due  to  statute."  That  a  party  agreed  to  con- 
tract only  in  writing  will  not  prevent  a  parol  modification.'*  Performance  will 
render  such  parol  modification  binding."  Where  a  contract  with  a  corporation 
provides  for  pavment  of  a  certain  sum  in  a  certain  time  and  that  it  shall  not  be 
modified  except  by  resolution  of  the  directors,  proof  that  the  officers  of  the  com- 
pany informed  the  other  party  of  a  modification  is  inadmissible  in  an  action  on  the 
contract  to  show  that  it  would  mature  earlier.'®  Where  a  valid  contract  is  made 
in  substitution  of  a  previous  one,  the  obligations  of  the  latter  are  annulled,"  but  a 


71.  Sheats  v.  Scott.  133  Ala.  642. 

72.  Drumheller  v.  American  Surety  Co., 
-.f)  Wash.  aZO.  71  Pac.   25. 

73.  Modification  of  unsealed  written  con- 
tract by  s'Jbsequent  parol  agrreement — Gunby 
V.  Drew  (Fla.)  34  So.  305.  Where  one  of  the 
parties  to  a  contract  was  to  direct  its  per- 
formance in  certain  particulars  and  he  re- 
fused to  allow  it  to  be  performed  as  the 
other  party  intended,  a  modification  chang- 
ing the  duties  of  the  latter  was  supported  by 
a  sufliicient  consideration.  Logging  contract 
— Kerslake  v.  Mclnnis,  113  "Wis.  659. 

74-  A  colt  was  given  for  a  lease  and 
proved  afflicted  with  disease;  the  former 
owner  then  agreed  to  buy  the  colt  at  a  cer- 
tain price  In  the  fall,  or  if  it  died  to  reim- 
burse the  other  party — Jackson  v.  Helmer, 
73  App.  Div.    (S.  T.)    134. 

7.1.  In  Florida  an  unsealed  written  con- 
tract may  be  modified  by  subsequent  parol 
agreement — Gunby  v.  Drew  (Fla.)  34  So.  305. 
A  written  contract  of  guaranty  not  within 
the  statute  of  frauds  may  be  modified  by 
parol  In  Oregon.  Agreement  by  assignee  of 
oheck  and  certificates  of  deposit  to  pay  them 
if  not  paid  by  the  bank — Kiernan  v.  Kratz, 
42  Or.  474.  69  Pac.  1027.  70  Pac.  506.  In 
Washington  a  verbal  modification  will  not 
be  allowed  to  alter  a  written  contract;  the 
statute  requires  acceptance  in  writing — Nel- 
son V.  Nelson  Bennett  Co.  (Wash.)  71  Pac. 
749.  In  Kentucky  It  is  allowable,  unless  for- 
bidden by  the  statute  of  frauds — Illinois 
Cent.  R.  Co.  v.  Manlon,  23  Ky.  L.  Pv.  2207,  67 
S.  W.  40.  In  Montana  the  oral  modification 
must  be  executed  fCiv.  Code.  }  2281) — Arm- 
Ington  V.  Stelle.  27  Mont.  13,  69  Pac.  115. 
It  may  be  shown  In  Texas  to  avoid  the  de- 
fense of  the  statute  of  limitations — Liner  v. 
J.  B.  Watklns  Land  Mortg.  Co.  (Tex.  Civ. 
App.)  68  8.  W.  311.  A  passenger  ticket  can- 
not be  thus  modified  by  an  agreement  with 
the  train  crew — Illinois  Cent.  R.  Co.  v.  Harris 
rMlss.)  32  So.  309.  If  the  subsequent  oral 
agreement  la  an  independent  and  consistent 
agreement  It  will  not  be  construed  as  a 
modification — Cerruslte  Min.  Co.  v.  Steele 
fColo.  App.)  70  Pac.  1091.  A  sealed  Instru- 
ment   cannot    be    modified    in    Illinola    by    a 


subsequent  unexecuted  oral  agreement — 
Jones  V.  Chamberlain,  97  111.  App.  328,  but 
otherwise  as  to  a  contract  not  under  seal — 
Palmer  v.  Bennett,  96  111.  App.  281.  A  writ- 
ten lease  cannot  be  modified  in  New  York  by 
a  new  oral  agreement  without  further  con- 
sideration— Spota  V.  Hayes,  36  Misc.  (N.  Y.) 
532.  In  North  Carolina  a  subsequent  agree- 
ment relating  to  the  manner  in  which  the 
contract  is  to  be  performed  may  be  shown — 
Hardwood  Log  Co.  v.  Coffin,  130  N.  C.  432. 
Agreement  by  trustees  and  mortgagee  for 
benefit  of  preferred  creditors  that  another 
creditor  will  be  included  in  the  preference 
will  be  allowed  to  vary  the  preference  in 
Michigan — Wolff  v.  Alpena  Nat.  Bank  (Mich.) 
92  N.  W^.  287.  In  New  York  a  parol  agree- 
ment extending  the  time  of  payment  and  In- 
creasing the  rate  of  interest  on  a  mortgage 
under  seal  which  was  not  paid  at  maturity, 
is  a  valid  modification  of  the  mortgage — 
New  York  Life  Ins.  Co.  v.  Casey,  81  App.  Div. 
(^N.  Y.)  92.  And  a  subsequent  oral  agreement 
between  the  parties  may  work  a  modification 
of  a  written  contract  not  under  seal  before 
breach — Eagle  Iron  Works  v.  Farley,  83  App. 
Div.   (N.  Y.)   82. 

70.     Copeland  v.  Hewett,  96  Me.  525. 

77.  An  oral  agreement  reducing  rent  on 
a  written  lease  is  binding  In  Nebraska  aft- 
er payment  and  acceptance — Bowman  v. 
Wright  (Neb.)  91  N.  W.  580.  Parol  modifica- 
tion of  written  contract  binding  In  New  York 
after  performance  though  within  the  stat- 
ute of  frauds  and  no  new  consideration 
passed — Jackson  v.  Helmer,  73  App.  Div.  (N. 
Y.)   134. 

78.  Cleckley  v.  Mutual  Fidelity  Co.  (Ga.) 
43  S.  E.  725. 

79.  Howard  v.  Scott  (Mo.  App.)  72  8.  W. 
709.  A  written  contract  between  the  same 
parties  and  embodying  the  same  suijject 
matter  supersedes  a  previous  oral  contract — 
Curtis  Bros.  Lumber  Co.  v.  McLoughlin,  80 
App.  Div.  (N.  Y.)  636.  W^here  a  contract  for 
construction  of  an  electric  light  plant  under 
a  certain  statement  for  a  certain  price,  was 
changed  by  substitution  of  another  state- 
ment, the  contractor  could  only  recover  for 
a  reasonable  value  of  the  work  done  and  not 


7A 


MERGER.     PERFORMANCE. 


671 


modification  which  renders  useless  work  already  done  under  the  original  contract 
will  not  prerent  liability  therefor.^"  Alterations  made  orally  by  the  owner  in  plans 
for  buildings  under  construction  accepted  by  the  builder  amount  to  a  waiver  of  a 
contract  requiring  written  evidence  to  render  the  owner  liable.*^  A  steamship 
company  purchasing  the  property  of  another  company  thereby  assiunes  a  contract 
for  shipment  made  by  the  latter  company  providing  for  substitution,  on  notifying 
the  other  party  of  such  change.^-  Acceptance  of  a  note  from  a  debtor  in  security 
of  a  claim  will  not  bind  the  creditor  to  extend  the  time  of  maturity  of  the  debt  to 
the  maturity  of  the  note  except  on  clear  proof  that  tlie  parties  so  understood  tlie  ar- 
rangement." Where  railroad  companies  comply  with  contract  for  use  of  a  bridge 
at  a  certain  price  for  some  time  and  then  threaten  to  witlidraw  if  a  reduction  was 
not  made,  a  payment  of  a  less  amount  by  the  companies  for  19  years,  which  was 
accepted  by  the  bridge  ovmers  amounted  to  a  modification  of  the  contract.**  Where 
an  engineer  employed  by  a  city  to  supervise  and  inspect  the  construction  of  a  sewer 
system  was  directed  by  city  council  to  take  charge  of  the  completion  of  the  system 
after  its  abandonment  by  the  contractor,  he  may  bring  an  action  to  recover  for 
services  on  a  quantimi  meruit  though  he  may  have  failed  to  perform  some  of  the 
duties  required  by  his  prior  contract.*' 

Merger. — Promises  or  agreements  concerning  terms  of  a  contract  made  prior 
to  or  at  the  same  time  with  the  execution  of  the  contract  in  writing  are  merged 
therein.**  An  agreement  between  parties  for  services  which  does  not  exactly  settle 
the  compensation  therefor  is  merged  into  and  extinguished  by  a  subsequent  agree- 
ment specifying  full  amoimt  for  satisfaction,  and  cannot  be  enforced  merelv  be- 
cause one  party  failed  to  perform  tJie  subsequent  agreement.*'  Contracts  made  for 
the  purchase  of  a  certiiin  business,  the  seller  agreeing  not  to  engage  in  such  busi- 
ness while  the  ptirchaser  remains  therein,  are  not  merged  in  a  contract  made  sev- 
eral years  later  whereby  the  purchaser  agreed  on  the  seller's  purchase  of  certain 
land  and  re-purehase  of  the  business,  not  to  engage  in  such  business  in  a  certain 
territory  for  a  certain  period.**  Where  water  rents  for  irrigation  purposes  under 
a  contract  were  not  collected  during  the  first  year  owing  to  a  loss  of  crops  for  insuffi- 
ciency of  water,  and  the  next  year  a  new  contract  was  made  without  demand  for 
such  previous  rents,  it  will  be  presumed  in  an  action  to  set  aside  for  nonperformance 
that  the  debt  of  tlie  first  year  was  merged  in  the  consideration  for  tlie  later  con- 
tract." 

§  7.  DiscJwrge  of  coniract  ht/  performance  or  hre^ch.^  A.  General  rules. — 
Either  party  to  a  contract  may  perform  and  charge  the  other  with  liabilitv.  without 
the  latter's  consent  or  acquiescence."  The  question  as  to  which  of  two  parties  first 
broke  a  contract  depends  not  upon  the  demands  of  either  beyond  his  rights  there- 
under but  upon  which  failed  first  to  do  what  he  was  required  by  its  terms  to  do." 
If  a  contract  requires  performance  on  demand,  the  demand  is  absolutely  necessary 
to  place  the  other  party  in  default,"'  but  if  one  party  agreed  to  perform  on  demand 


the  price  agrreed  upon  In  the  original  con- 
tract— Davis  V.  Bingham.  S9  Misc.  (N.  T.) 
299. 

50.  Construction  of  modified  contract — 
Flather  v.  Economy  Slugging  Mach.  Co.,  71 
N.  H.  S9S. 

51.  Crowley  v.  United  States  Fidelity  & 
Gxjaranty  Co..  29  Wash.  26S.  69  Pac.  7S4. 

52.  Morris  v.  Wilson  (C.  C.  A.)  114  Fed. 
74. 

SS.  Philadelphia  v.  Howell,  19  Pa.  Super. 
Ct.  76. 

S4,  Pittsburg.  C.  C.  A  St.  I>.  R.  Co.  v. 
Dodd.   24  Ky.  L.  R.  2057,  72  S.  W.  S22. 


55.  City  of  Newport  News  v.  Potter  (C.  C. 
A.>   122  Fed.  S21. 

56.  Cannon  v.  Michigan  Mut.  Life  Ins.  Co., 
103  111.  App.   414. 

57.  Spier   V.    Hyde,    7S    App.    Dlv.    (N.    T.) 
151. 

SS.  Adams  v.  Adams  (Ind.>  66  N.  E.  15$i 
S9.  Perkins  v.  Frazer.  107  La.  S90. 
SW.  Interpretation  of  terms  fixing  obliga- 
tion, undertaking    or    acts    to    be    done,    see 
ante.  §   4-K. 

91.  Central    CotI    &    Coke    Co.    v.    Geo.    S. 
Good  &   Co.    (a  C.   A.">    120  Fed.    79S. 

92.  Emack  v.  Hughes,   74  Vt.   SSS. 


672 


CONTRACTS. 


§   7B 


and  notice  and  refused  so  to  perform,  a  further  demand  is  unnecessary.'*  The 
breach  must  relate  to  the  identical  contract,"^  but  a  breach  of  a  second  contract,  en- 
tered into  in  contemplation  of  the  first,  and  which  constituted  an  inducement  to 
one  of  the  parties  to  enter  into  the  first  contract,  is  a  good  defense  to  an  action  for  en- 
forcement of  the  first  contract  as  against  his  assignee.*" 

(§7)  B.  Acceptance  of  performance;  waiver  of  breach  or  insufficient  perform- 
ance.— Acquiescence  in  a  contract  as  performed,  by  payment  or  otherwise,  amounts  to 
acceptance,®^  unless  the  right  of  objection  is  expressly  reserved  as  to  subsequently 
discovered  breach,*®  and  persons  claiming  under  the  parties  will  be  bound  by  their 
acceptance.*®  Acts  which  might  otherwise  amount  to  acceptance  will  not  excuse 
latent  defects.^  A  demand  for  performance  after  expiration  of  the  contractual 
period  amounts  to  an  extension  of  time.^  A  specific  rejection  of  performance  and 
the  pointing  out  of  defects  therein  will  prevent  acceptance  though  such  party  him- 
self directed  performance.^  Mere  occupancy  of  a  building  by  the  owner  or  his  ten- 
ant after  completion  will  not  excuse  defective  construction,'*  nor  will  his  taking  pos- 
session after  expiration  of  the  contractual  period,^  with  the  contractor's  consent,  to 
complete  the  construction.®  Alterations  of  the  plans  by  the  owner  in  completing  a 
building  after  default  by  the  contractor  will  not  afTect  the  rights  of  the  former.'' 
Performance  by  one  party  may  be  waived  by  acts  of  the  other,^  and  likewise  lia- 


03.  Rodger  v.  Toilettes  Co..  37  Misc.  (N. 
Y.)  779.  ^^here  a  party  agreed  to  pay  the 
consideration  of  a  contract  by  raising  crops 
on  a  farm  during  the  current  year,  if  pos- 
sible, a  demand  by  the  other  is  necessary 
to  put  him  in  default,  otherwise  he  will  be 
given  more  time  for  performance — Thomp- 
son  V.   Easton,   73   App.   Div.    (N.   Y.)    114. 

JV4.     Loeb  V.  Stern,   198   111.   371. 

9.5.  Macklem  v.  Fales  (Mich.)  89  N.  "W.  581. 
The  failure  of  an  electric  light  company  to 
bury  its  wires  and  paint  its  poles  as  re- 
quired by  an  ordinance  constitutes  no  breach 
of  a  contract  with  the  city  to  furnish  lights 
— Kaukauna  Electric  Light  Co.  v.  City  of 
Kaukauna,  114  Wis.   327. 

96.  Falvey  v.  Woolner,  71  App.  Div.  (N. 
Y.)    331. 

97.  "Weekly  action  by  a  city  on  reports 
concerning  progress  of  a  building  contract 
made  by  its  agents  after  inspection  and  pay- 
ments on  their  estimates  amount  to  accept- 
ance and  prevent  a  claim  of  breach  of  the 
contract — Schliess  v.  City  of  Grand  Rapids 
(Mich.)  90  N.  W.  700.  A  delivery  of  a  build- 
ing to  the  owner  who  went  into  possession 
under  an  agreement  that  he  accepted,  ex- 
cept with  regard  to  certain  alterations  then 
agreed  upon,  constituted  an  unequivocal  ac- 
ceptance of  the  work,  where  the  alterations 
were  subsequently  performed  to  the  satis- 
faction of  the  architect — Vanderhoof  v.  Shell, 
42  Or.  578,  72  Pac.  126.  A  contractor  who 
failed  to  put  his  men  and  the  teams  at 
work  so  as  to  complete  the  contract  in  the 
time  fixed,  by  afterward  permitting  the  other 
party,  without  objection,  to  complete  the 
work,  and  by  assisting  him  in  so  doing 
waived  his  right  to  Insist  on  a  fulfillment 
by  a  date  fixed  in  the  contract — McArthur 
Bros.  Co.  V.  Whitney.  202  111.  527.  ^Vhere 
a  father  contracted  with  his  daughter  for 
the  occupancy  of  his  house,  to  be  hers  on 
his  death  on  certain  conditions,  one  of  which 
was  that  she  must  pay  the  taxes,  a  payment 
of  taxes  by  the  father  after  the  daughter's 
failure  to   pay  while  she   was  In  possession 


amounted  to  a  waiver  of  forfeiture  where 
he  made  no  complaint  at  the  time,  and  a 
devisee  of  the  house  11  years  after  his  death 
who  had  known  of  her  payment  of  taxes 
during  that  time  could  not  raise  any  ground 
of  forfeiture  and  avoid  the  contract — Sheldon 
V.    Dunbar,    200    III.    490. 

98.  Temporary  settlement  on  a  contract 
for  work  with  provision  that  the  contractor 
shall  be  liable  for  any  defects  subsequently 
discovered  will  expressly  bind  him  for  any 
breach  in  performance — Brownell  Imp.  Co. 
V.   Critchfield,   197  111.   61. 

99.  A  failure  to  comply  with  the  terms  of 
a  contract  cannot  be  raised  by  persons  claim- 
ing under  another  party  where  the  latter 
has  excused  the  nonperformance  or  default. 
Contract  for  location  of  lands  at  expense 
of  locator — Lane  v.  De  Bode  (Tex.  Civ.  App.) 
69    S.   W.    437. 

1.  Payment  or  part  payment  on  the  con- 
tract— Charley  v.  Potthoff  (Wis.)  95  N.  W. 
124.  An  owner  is  not  precluded  from  show- 
ing defects  in  material  used  in  a  building 
which  were  latent,  merely  because  he  used 
finishing  material  provided  without  discov- 
ering such  defects — Utah  Lumber  Co.  v. 
James.    25   Utah,   434,    71   Pac.    986. 

2.  Building  contract — Krause  v.  Board  ol 
School   Trustees   (Ind.  App.)    66   N.   E.   1010. 

3.  Building  contract — Mitchell  v.  Wil- 
liams.   80   App.   Div.    (N.   Y.)    527. 

4.  Mitchell  v.  Williams,  80  App.  Div.  (N. 
Y.)   527. 

5.  Cannon  v.  Hunt.  116  Ga.  452. 

6.  The  act  of  the  owner  is  a  privilege 
and  raises  no  duty  to  the  contractor — Mit- 
chell V.  Williams.  80  App.  Div.   (N.   Y.)   527. 

7.  Changes  in  detail  which  might  reason- 
ably be  made — Delray  Lumber  Co.  v.  Keo- 
hane    (Mich.)    92   N.   W.    489. 

8.  A  life  insurance  company  cannot  refuse 
to  fulfill  its  contract  to  make  a  loan  on  a 
policy  for  failure  of  deposit  of  the  original 
policy,  where  it  w^as  lost  and  on  notification 
the  company  furnished  a  certified  copy  and 
received    premiums    thereon — Reid    v.    N.    Y. 


§  7C 


EXCUSE  FOR  BREACH. 


6T3 


bility  for  defective  performance.®  The  acts  of  unauthorized  agents  or  representa- 
tives will  not,  however,  amount  to  such  waiver  of  defects.^**  A  delay  of  a  few  days 
by  one  party  before  refusing  a  demand  by  the  other  for  performance  will  not  pre- 
vent the  reliance  of  the  former  on  a  prior  breach  of  the  demanding  party,  where  it 
appears  that  he  had  no  intention  of  waiving  his  rights  and  was  not  fully  informed 
as  to  the  acts  of  the  other.^^  The  rule  that  acceptance  without  objection  or  failure 
to  object  within  a  reasonable  time  after  knowledge  of  facts  or  opportunity  of 
loiowledge  will  waive  defects  in  performance  does  not  apply  to  acceptance  of  an 
exhibit  by  a  theatrical  company  by  one  who  has  engaged  it  to  perform  in  his  theater 
where  he  has  already  rented  the  theater,  sold  the  tickets,  and  invested  the  proceeds 
in  advertising.^^  Acceptance  by  the  owner  will  not  bind  the  surety  as  to  compen- 
sation if  his  liability  is  thereby  changed.^^ 

(§7)  C.  Excuses  for  nonperformance}* — Where  failure  in  performance  of  a 
contract  was  entirely  due  to  acts  of  one  party  over  which  the  other  had  no  control,  it 
constitutes  no  defense  to  the  claim  of  the  latter  for  compensation.^'  The  existence  of 
undisclosed  conditions  cannot  be  assigned  by  the  party  as  an  excuse  for  failure,^" 
or  delay  in  performance  of  a  contract.^^  Inability  of  a  party  to  perform  his  con- 
tract can  never  be  made  a  defense  to  an  action  for  breach,  unless  that  inability 
amounts  to  an  impossibility,^*  but  impossibility  of  performance  will  relieve  him  of 
performance  of  provisions  of  a  contract  which  entitle  him  to  enforcement  of  other 
provisions  as  against  the  other  party.^®  That  subsequent  circumstances,  which 
might  have  been  in  contemplation  of  the  parties  at  time  of  making  a  contract,  ren- 
der its  completion  impossible  will  not  relieve  the  party  in  default  from  liability  to 
the  other  in  accordance  with  its  terms.^**     Where  a  party  diligently  attempted  to 


Life  Ins.  Co.,  65  S.  C.  295,  43  S.  E.  654.  A 
condition  in  a  contract  that  each  of  the 
parties  should  deposit  in  a  certain  bank  his 
certified  check  for  a  certain  amount  payable 
to  the  other  as  security  for  the  faithful  per- 
formance of  the  contract  is  waived  by  the 
acceptance  by  each  party  of  the  other's  un- 
certified check,  but  such  waiver  does  not 
affect  the  remaining  portions  of  the  contract 
and  its  provisions  as  to  venue  of  actions 
brought  thereon  are  still  in  force — Millar  v. 
Smith    (Tex.    Civ.   App.)    67    S.   W.    429. 

9.  Breach  of  a  contract  for  the  carriage 
of  goods  by  a  vessel  because  of  the  insuffi- 
cient capacity  of  the  vessel  cannot  be  claim- 
ed where  It  appears  that  no  complaint  was 
made  on  that  account  at  the  time  of  loading 
nor  until  aftir  two  voyages  for  which  it 
was  chartered  had  been  completed — Gow  v. 
William  W.  Drauer  S.  S.  Co.,  113   Fed.  672. 

10.  An  acceptance  of  work  under  a  con- 
tract by  the  United  States  and  payment  of 
compensation  after  a  test  by  officers  desig- 
nated for  that  purpose  will  not  prevent  the 
United  States  from  holding  the  contractors 
liable  for  subsequently  discovered  defects, 
where  made  in  ignorance  of  the  defects 
which  could  not  be  discovered  in  the  test 
though  its  engineers  had  knowledge  of 
them  but  were  without  authority  to  waive 
objections  or  bind  the  government  by  estop- 
pel— United  States  v.  Walsh  (C.  C.  A.)  115 
Fed.   697. 

11.  Loudenback  Fertilizer  Co.  v.  Tennes- 
see Phosphate  Co..    (C.   C.  A.)    121  Fed.   298. 

12.  13.  Charley  v.  PotthofC  (Wis.)  95  N.  W. 
124. 

14.  Where  the  whole  consideration  for  a 
promise  not  to  charge  interest  on  money 
lue    was   a    promise   by   the   other    party    to 

Cur.   Law — 43. 


furnish  goods  at  a  certain  price,  and  the 
whole  consideration  of  the  promise  to  furnish 
such  goods  was  the  promise  of  the  other 
not  to  charge  such  interest,  the  promises 
were  not  Independent  and  the  failure  of  one 
to  perform  excuses  the  other  from  liability 
— Schmidt  v.  Mitchell,  117  Ga.   6. 

15.  Walsh  v.  Hyatt,  74  App.  Div.  (N.  T.) 
20. 

16.  Where  a  contract  bound  a  party  to 
erect  a  building  upon  such  site  as  might  be 
selected  by  the  other  parties,  that  difficulties 
were  encountered  in  laying  of  the  founda- 
tion by  reason  of  the  weakening  of  the  soil 
by  its  previous  use  as  a  cemetery,  did  not 
relieve  him  from  performing  the  contract 
in  a  good  and  workmanlike  manner  accord- 
ing to  its  terms,  and  such  conditions  must 
be  held  to  have  been  considered  by  him  in 
making  his  terms  for  the  contract — Zim- 
merman V.  Conrad    (Mo.  App.)    74   S.   W.   139. 

17.  First  Nat.  Bank  v.  Park,  117  Iowa, 
552. 

18.  Bates  Mach.  Co.  v.  Norton  Iron  Works 
(Ky.)    68   S.  W.   423. 

10.  Sale  of  mining  lease  under  a  provision 
calling  for  its  operation  by  the  purchaser 
and  sale  of  its  ore  and  for  a  repurchase  by 
the  seller  at  the  expiration  of  one  year  in 
consideration  thereof — Buchanan  v.  Layne, 
95   Mo.   App.    148. 

20.  A  contract  for  transportation  of  con- 
tract labor  from  one  country  to  another, 
legal  in  both  countries  when  made,  is  not 
abrogated  by  passage  of  a  regulation  in  the 
midst  of  performance  which  prevents  secur- 
ing the  laborers  so  as  to  absolve  the  im- 
porter for  liability  for  the  hire  of  the  ship 
for    the    remaining   voyages — Tweedie    Trad- 


674 


CONTRACTS. 


§   7C 


perform,  but  on  acconnt  of  unavoidable  circumstances  was  prevented,  he  will  have 
performed  sufficiently  by  tendering  performance  at  the  earliest  possible  moment,  if 
no  demand  has  previously  been  made  upon  liim.'^^  That  work  under  a  contract 
costs  more  than  any  one  anticipated,  will  not  excuse  breach  of  the  contract.^^  Where 
one  party  notifies  the  other  that  he  will  not  complete  a  contract  partly  performed, 
the  other  is  not  required  to  perform  f urther.^^  Failure  to  perform  does  not  amount 
to  a  breach  where  it  was  to  follow  performance  by  the  other  party  who  f ailed.^*  A 
breach,^''  or  forfeiture  cannot  be  asserted  on  a  contract  where  the  party  to  perform 
has  been  improperly  interfered  with  by  the  other  party,^*  or  caused  delay  in  per- 
formance by  the  other."  If  there  is  no  time  limit  in  a  building  contract,  a  delay 
of  three  weeks  because  of  a  strike  will  not  prevent  recovery.-®  \Vliere  an  engineer 
in  charge  of  a  construction  contract  has  full  authority  to  order  necessary  changes, 
his  unreasonable  action  in  ordering  them  will  not  excuse  performance  by  the  con- 
tractor.^® Wliere  a  party  performs  his  contract  as  required  by  its  terms,  which  do 
not  contain  a  guaranty  as  to  its  permanence,  he  is  not  responsible  for  loss  arising 
from  the  natural  conditions  as  to  which  risks  would  be  assumed  by  the  other  party.'" 
Where  a  party  to  a  contract  for  the  harvest  of  grain  fails  to  commence  until  ten 
days  after  the  time  agreed  upon  for  beginning,  whereby  much  of  the  grain  was 


ing  Co.  V.  James  P.  McDonald  Co.,  114  Fed. 
985;  James  P.  McDonald  Co.  v.  Tweedie  Trad- 
ing-  Co..    Id. 

21.  Contract  for  the  delivery  of  small 
fruit  vines  to  be  raised  which  it  was  impos- 
sible to  raise  during  the  following  year  be- 
cause of  a  drought — Thompson  v.  Easton,  73 
App.   Div.    (N.    Y.)    114. 

22.  Hanthorn  v.  Qulnn,  42  Or.  1,  69  Pac. 
817. 

23.  Miller  v.  Sigler  (Mo.  App.)  69  S.  "W. 
479:  Wallingford  v.  Aitkins,  24  Ky.  L.  R. 
1995,  72  S.  W.  794.  Where  work  already 
done  under  a  partial  performance  of  a  con- 
tract is  rejected  by  the  other  party,  the  con- 
tractor is  excused  from  further  performance, 
if  the  work  has  been  performed  in  compli- 
ance with  the  contract — Davis  v.  Bowers 
Granite  Co.   (Vt.)   54  Atl.  1084. 

24.  Griffin  v.  Bass  Foundry  &  Machine  Co., 
135  Ala.  490;  La  Vallette  v.  Booth,  131  N.  C. 
36. 

25.  "Where  the  merging  of  the  business 
of  a  firm  into  a  corporation  rendered  it  im- 
possible for  a  party  to  a  contract  with  the 
firm  to  determine  how  much  ice  was  neces- 
sary for  its  use,  the  firm  could  not  recover 
for  breach  of  a  contract  by  refusal  of  such 
party  to  comply  with  the  contract  requiring 
the  furnishing  of  ice  for  the  retail  trade 
of  the  firm — Consumers'  Ice  Co.  v.  E.  Web- 
ster, Son   &  Co.  79  App.  Div.    (N.  Y.)   350. 

26.  Building  contract — King  v.  United 
States.  37  Ct.  CI.  428.  One  who  prevents 
exercise  of  an  option  he  has  granted  within 
the  time  specified  must  give  a  reasonable 
time     thereafter     for     exercise — Blodgett     v. 

.'Lanyon  Zinc  Co.   (C.  C.  A.)   120  Fed.   893. 

27.  Failure  In  completion  by  appointed 
time — Ocorr  &  Rugg  Co.  v.  City  of  Little 
Falls,  77  App.  Div.  (N.  Y.)  592.  Where  a 
contract  is  made  for  the  furnishing  of  cer- 
tain materials  in  weekly  quantities,  and  the 
purchaser  notifies  the  seller  not  to  deliver, 
but  subsequently  requests  him  to  resume  de- 
livery, which  he  does,  the  seller  is  not  liable 
on  failure  to  complete  the  contract,  for  the 
extra  cost  of  materials  which  the  purchaser 
had    to    buy    elsewhere — Pitts    v.    Davey,    40 


T-Iisc.  (N.  Y.)  96.  Failure  to  complete  a 
building  within  the  time  specified  because 
of  failure  of  the  owner  to  comply  with  re- 
quirements of  building  department,  and  be- 
cause further  of  an  alteration  of  the  work, 
and  neglect  of  the  owner's  architect  to 
furnish  sufficiently  detailed  plans,  "will  not 
bar  recovery  on  the  contract,  especially 
where  the  season  during  which  the  work 
was  done  was  unusually  wet  and  the  owner 
made  no  complaint  as  to  delay — Perry  v. 
Levenson,  82  App.  Div.  (N.  Y.)  94.  T^'here 
delay  in  a  building  contract  was  caused  by 
the  owner's  decision  to  change  from  the  use 
of  mortar  to  adamant  whereby  other  con- 
tractors were  secured  to  do  part  of  the  work, 
which  was  not  done  promptly  nor  in  work- 
manlike manner,  and  by  reason  of  which  the 
contractor  was  delayed  in  completing  the 
building,  he  could  recover  a  reasonable  al- 
lowance of  extra  time  in  computing  the  num- 
ber of  days  of  delay  for  wliich  the  owner 
was  entitled  to  damages  under  the  contract 
— Vanderhoof  v.  Shell,  42  Or.  578,  72  Pac.  126. 

28.  Happel  v.  Marasco,  37  Misc.  (N.  Y.) 
314. 

29.  National  Contracting  Co.  v.  Com. 
(Mass.)    66    N.    E.    639. 

30.  Construction  of  a  wall  which  was 
ruined  by  freezing  of  mortar — Schliess  v. 
City  of  Grand  Rapids  (Mich.)  90  N.  W.  700. 
Where  lumber  which  had  been  sawed  by  one 
of  the  parties  to  a  contract  under  its  terms 
was  burned  in  the  yards  before  delivery 
through  fault  of  neither  party,  compensa- 
tion could  still  be  recovered  for  its  manu- 
facture— Rhodes  v.  Hinds,  79  App.  Div.  (N. 
Y.)  379.  The  owner  of  an  iron  mill  is  not 
liable  for  nonperformance  under  a  contract 
to  furnish  its  output,  providing  that  he 
should  not  be  liable  for  loss  or  damage  aris- 
ing from  failure  to  perform,  because  of  fire 
or  strikes  and  giving  the  other  party  the 
right  to  transfer  the  contract  to  other  manu- 
facturers, if  they  so  desire,  where  the  mill 
was  destroyed  by  fire  before  full  perform- 
ance— V%'estern  Hardware  &  Mfg.  Co.  v.  Ban- 
croft-Charmley  Steel  Co.  (C.  C.  A.)  116  Fed. 
176. 


S  7D 


PERFORMANCE.  SUFFICIENCY. 


675 


lost  b}-  shelling,  the  fact  that  such  shelling  was  caused  '.,y  the  high  winds  did  not 
make  the  loss  an  act  of  God,  so  as  to  relieve  him  from  liability.^^  Though  a  con- 
tract will  not  be  discharged  by  the  intervention  of  an  act  of  God  rendering  per- 
formance impracticable,  yet  if  it  is  apparent  from  the  nature  of  the  contract  that 
the  parties  intended  that  it  should  rest  on  the  continued  existence  of  a  given  person 
or  thing,  there  is  an  implied  condition  that  if  performance  becomes  impossible  from 
the  death  of  the  person  or  the  destruction  of  the  thing,  performance  is  excused,  and 
this  in  spite  of  unqualified  promissory  words. ^^ 

(§7)  D.  Sufficiency  of  performance;  acts  amounting  to  hreach.^^ — Perform- 
ance of  an  entire  contract  must  be  complete  and  not  partial  to  require  acceptance  by 
the  other  party.^*    Proper  performance  of  a  contract  is  required  though  the  contract 


31.  Holt  Mfg-.  Co.  V.  Thornton.  136  Cal. 
232,    68   Pac.   708. 

32.  Dow  V.  State  Bank  of  Sleepy  Eye 
(Minn.)    93   N.   W.    121. 

33.  Pungs  V.  American  Brake  Beam  Co., 
200  111.  306;  Wallace  v.  "Williams  (Tenn.)  69 
S.  W.  267.  Sufficiency  of  performance  of 
service  in  examination  of  a  subway  by  an 
electrical  expert  to  entitle  him  to  compen- 
sation— Rosewater  v.  Glen  Telephone  Co.,  81 
App.  Div.  (N.  Y.)  275.  Contract  for  exclusive 
lease  of  building-  for  sale  of  liquors  as  to 
performance  or  breach — Wallace  v.  Williams 
(Tenn.)  69  S.  W.  267.  Payment  of  moneys 
coming  to  the  hands  of  a  mortgagee  of 
premises  for  the  owner  to  the  latter  amounts 
to  a  breach  of  an  agreement  between  the 
mortgagee  and  a  sub-contractor  furnishing 
supplies  to  erect  a  house  that  the  former 
would  withhold  such  money  as  security  if 
the  latter  would  continue  to  furnish  the  ma- 
terials— Prata  v.  Green,  70  App.  Div.  (N.  Y.) 
224.  An  agreement  to  discontinue  a  pend- 
ing action  without  further  costs  is  broken 
by  the  entry  by  plaintiff's  attorney  of  a 
judgment  to  protect  his  lien,  thereby  impos- 
ing more  costs — Rosenthal  v.  Rudnick,  76 
App.  Div.  (N.  Y.)  624.  Unskillful  perform- 
ance of  a  contract  by  construction  of  de- 
fective machinery  under  a  contract  for  first 
class  appliances  is  an  active  violation  of  b. 
contract — Payne  v.  Amos  Kent  Brick  &  Lum- 
ber Co.  (La.)  34  So.  763.  Failure  to  follow 
plans  and  specifications  of  a  building  and 
use  of  poor  material  so  that  the  floors  were 
so  unlevel  that  furniture  leaned  forward  or 
to  the  side,  the  roof  leaked  and  the  doors 
and  windows  could  not  be  closed,  was  an 
open  violation  of  the  contract — Sarrazin  v. 
Alfred  A.  Adams  &  Co.  (La.)  34  So.  301.  An 
attempt  to  disinherit  one  with  whom  a  con- 
tract was  made  for  services  in  consideration 
of  a  legacy  at  death  of  the  promisor  is  a 
breach  thereof  entitling  the  other  to  recover 
the  reasonable  value  of  her  services — Clark 
v.  West  (Tex.)  73  S.  W.  797.  Where  suffi- 
cient money  was  advanced,  under  a  contract 
with  attorneys  to  carry  on  litigation,  to 
preserve  the  proceedings  from  default,  a 
failure  of  the  attorneys  to  proceed  because 
of  refusal  of  the  other  party  to  advance 
more  moneys  amounted  to  a  breach  relieving 
the  other  party  from  performance;  likewise 
a  failure  of  a  member  of  the  firm  to  give 
his  personal  attention  to  the  case  accord- 
ing to  the  contract  amounts  to  a  breach — 
Nelson  v.  Hatch.  70  App.  Div.  (N.  Y.)  206. 
A  contract  for  the  purchase  of  fishing  plants 
on  the  Atlantic  Coast  and  for  the  good  will 


of  the  sellers,  stipulating  that  they  were  not 
to  engage  in  fishing  or  the  manufacture  of 
certain  fishing  products  for  20  years  on  the 
Atlantic  seaboard,  included  all  waters  on  the 
eastern  coast  of  the  United  States  and  was 
violated  by  the  sellers  going  into  Chesa- 
peake Bay  and  conducting  fishing  operations 
both  within  and  outside  the  bay,  nor  are 
these  consequences  of  the  contract  relieved 
by  the  fact  that  the  purchasers,  being  a 
non-resident  corporation,  were  prevented  by 
law  from  fishing  within  such  waters — Amer- 
ican Fisheries  Co.  v.  Lennen,  118  Fed.  869. 

34.  Price  v.  Engelke  (N.  J.  Sup.)  53  Atl. 
698.  There  was  a  breach  of  a  building  con- 
tract to  be  completed  within  a  stipulated 
time,  where  the  work  had  not  followed  the 
stipulations  though  completed  at  the  time  for 
delivery — Hay  v.  Bush  (La.)  34  So.  692. 
Where  boilers  to  be  furnished  for  a  heat- 
ing plant  under  a  contract,  were  to  be  sub- 
jected to  three  particular  tests,  each  was  an 
essential  element  of  the  contract  and  a  fail- 
ure in  any  one  regard  constituted  a  breach 
thereof — Heine  Safety  Boiler  Co.  v.  Francis 
Bros.  (C.  C.  A.)  117  Fed.  235.  If  a  contract 
fixes  no  time  for  payment,  substantial  per- 
formance of  the  entire  contract  is  necessary 
to  render  the  other  party  liable  for  the 
whole  or  any  part  of  the  consideration, 
though  prices  may  be  fixed  on  different  por- 
tions of  the  work  and  materials.  Contract 
for  placing  heating  plant  In  building  under 
schedule  giving  price  for  materials  and  la- 
bor— Riddell  v.  Peck-Williamson  Heating-  & 
Ventilating  Co.,  27  Mont.  44,  69  Pac.  241. 
Where  one  of  the  joint  owners  of  a  large 
plantation  failed  to  account  to  his  co-own- 
ers for  five  years  as  required  under  a  con- 
tract for  the  exclusive  charge  and  manage- 
ment of  such  plantation,  though  repeatedly 
requested  so  to  do.  there  is  a  breach  of 
the  contract  rendering  it  null — DeRouen  v. 
Romero  (La.)  34  So.  415.  An  arrangement 
concerning  debts  merely  good  between  the 
parties  thereto  will  not  amount  to  perform- 
ance of  a  contract  to  secure  an  assignment 
of  stock  to  be  held  as  security  for  notes  to 
be  valid  as  against  attaching  creditors — First 
Nat.  Bank  v.  Park,  117  Iowa,  552.  Where  a 
building  contract  required  work  to  be  done 
in  a  thorough  workmanlike  manner  to  the 
owner's  satisfaction  before  he  will  become 
liable  for  the  price,  a  finding  that  the  con- 
tractor had  failed  to  finish  the  work  to  the 
extent  of  one  seventh  the  value  of  the  price, 
but  that  there  was  a  substantial  perform- 
(  ance  and  that  the  owner  should  pay  six- 
sevenths  of  the  agreed  price,  was  not  In  ac- 


676 


CONTRACTS. 


§  7D 


is  silent  in  that  regard,^®  but  a  party  who  has  lully  performed  is  not  liable  for  un- 
satisfactory results  from  performance.^®  Substantial  performance  will  entitle  the 
party  to  recovery,"  but  substantial  performance  cannot  be  shown,  where  such  party 
has  departed  willfully  and  intentionally  from  the  contract,^*  nor  can  custom  or 
usage  be  employed  in  defiance  of  positive  terms  of  a  contract.^®  Acts  not  called  for 
by  the  contract  cannot  be  required.**'  A  breach  of  the  contract  occurs  when  one  of 
the  parties  refuses  to  be  bound  by  its  terms.**  Where  part  performance  was  to  be 
made  at  stated  periods,  failure  at  expiration  of  one  period  is  a  breach  of  the  whole 
contract.*^  Delay  in  performance  may  amount  to  a  breach,*'  as  may  also  acts  pre- 
venting performance  by  the  other  party.**     The  making  of  a  similar  contract  for 


cordance  with  the  terms  of  the  contract — 
Mitchell  V.  Williams,  80  App.  Div.  (N.  Y.) 
527. 

35.  Though  a  building  contract  does  not 
describe  the  materials  to  be  furnished  or 
the  manner  in  which  the  work  is  to  be  done, 
the  contractor  must  select  the  proper  ma- 
terials and  perform  the  work  properly — 
Cannon  v.   Hunt.   116  Ga.   452. 

30.  Building  contract  carried  out  as  to 
work  and  quality  of  materials — Cannon  v. 
Hunt,  116  Ga.  452.  Where  a  contract  to 
erect  a  passenger  elevator  called  for  a  mo- 
tor of  a  certain  strength,  the  purchaser  could 
not  complain  if  such  motor  was  furnished. 
though  the  conditions  required  one  of  larger 
power — Morse  v.  Puffer,  182  Mass.  423. 
Where  a  contractor  had  followed  the  specifi- 
cations given  him  carefully  bvit  had  failed 
to  complete  the  work  to  the  satisfaction  of 
the  commissioners  and  the  architect  who 
were  to  be  the  final  arbiters,  he  was  entitled 
to  recover  without  re-construction — Dwyer 
V.   New  York,   77   App.   Div.    (N.   Y.)    224. 

37.  City  of  Elizabeth  v.  Fitzgerald  (C.  C. 
A.)  114  Fed.  547;  Perry  v.  Levenson.  82  App. 
Div.  (N.  Y.)  94;  Anderson  v.  Plarper,  30 
Wash.  378,  70  Pac.  965.  Where  a  building 
contract  provides  for  extra  compensation  for 
changes  in  the  original  plans,  the  contractor 
may  recover  therefor,  though  he  did  not 
make  the  changes  at  the  time  they  were 
ordered — Essex  v.  Murray  (Tex.  Civ.  App.) 
68  S.  W.  736.  A  contract  to  build  the  road 
of  a  street  railroad  company  to  a  certain 
place,  does  not  fail  of  fulfillment  because 
the  builder  provided  for  the  use  of  part  of  a 
track  constructed  by  another  company,  since 
it  will  be  presumed  that  both  parties  entered 
the  contract  with  knowledge  that  such  use 
■was  permitted  by  law,  nor  did  the  construc- 
tion of  a  single  track,  where  the  railway 
turned  a  corner,  amount  to  a  violation  of 
the  contract,  though  it  stipulated  for  a  dou- 
ble track  railway — Los  Angeles  Traction  Co. 
V.   Wilshire.    135    Cal.    654.    67   Pac.    1086. 

38.  Harris  v.  Sharpies.  202  Pa.  243,  58  I.. 
R.  A.  214.  Failure  to  follow  plans — Sar- 
razin  v.  Alfred  A.  Adams  &  Co.  (T.a.)  34  So. 
301.  Substitution  of  inferior  materials  and 
workmanship — D'.\mato  v.  Gentile,  173  N. 
Y.  596;  Loudenback  Fertilizer  Co.  v.  Ten- 
nessee Phosphate  Co.  (C.  C.  A.)  121  Fed. 
298.  If  a  contractor  used  different  materials 
from  those  specified  in  the  contract,  the 
owner  may  recover  damages  though  ma- 
terials used  are  nearly  as  good  as  those  re- 
quired— Cannon  v.  Hunt,  116  Ga.  452.  "U^here 
a  contract  called  for  the  delivery  of  bonds 
on  a  certain  day  named  or  payment  of  their 
amount  in   cash,   a  delivery   or   tender   of  an 


accepted  order  on  the  treasurer  of  the  cor- 
poration having  them  in  charge  for  delivery 
of  the  bonds  when  they  should  be  issued, 
was  not  a  fulfillment  of  the  contract  and 
entitled  the  other  party  to  claim  the  cash 
payment — Barrett  v.  Twin  City  Power  Co.. 
1 1  f^  Fed.  861.  Where  a  contractor  was  pro- 
hibited by  his  contract  from  subletting  work 
wiiiiout  the  consent  of  the  architect  and 
was  compelled  to  submit  all  the  material 
to  the  latter,  he  was  liable  for  a  breach  of 
a  sub-contract  which  was  made  without  fol- 
lowing these  requirements,  though  they 
might  have  constituted  a  good  defense  to 
the  owners  as  against  the  sub-contractor — 
Herry  v.  Benoit  (Tex.  Civ.  App.)  70  S.  W. 
359. 

39.  A  contract  to  furnish  catalogue  covers 
based  upon  a  proof  in  which  the  firm  name 
of  the  printers  did  not  appear  at  the  bottom 
of  the  last  page,  is  not  fulfilled  by  the  print- 
ing of  such  covers  with  such  name  so  rep- 
resented, without  permission  of  the  other 
party,  though  it  is  customary  for  printers  to 
submit  proofs  without  such  imprint  and  to 
place  it  on  the  copy  afterwards  unless  other- 
wise ordered,  and  though  the  artistic  efEect 
was  not  thereby  diminished — Harris  v. 
Sharpies.   202  Pa.   243.   58  L.   R.  A.   214. 

40.  Dudley  v.  Sanders  Mfg.  Co.,  114  Fed. 
98  1.  1  auiiie  to  prosecute  appeal  from  a 
decision  of  land  commissioners  is  not  a 
breach  of  a  contract  to  apply  to  the  proper 
authorities  for  the  establishment  of  a  right 
of  preferment  to  the  purchase  of  certain 
tide  lands — Si^hwede  v.  Hemrich.  29  Wash. 
124,   69   Pac.   643. 

41.  Northrop  v.  Mercantile  Trust  &  De- 
posit Co..  119  Fed.   969. 

42.  National  Mach.  &  Tool  Co.  v.  Standard 
Shoe  Machinery  Co.,  181  Mass,  275;  Anderson 
V.    McDonald    (Wash.)    71    Pac.    1037. 

43.  Failure  to  operate  a  mine  under  a 
contract  impliedly  requiring  operation  with 
reasonable  diligence  amounts  to  a  breach  of 
the   contract — Sharp  v.  Behr,   117  Fed.  864. 

44.  Refusal  of  an  employer  to  make  pay- 
ments on  a  contract  for  work  and  labor 
providing  for  cash  payments  or  to  allow 
laborers  to  proceed — Anderson  v.  McDonald 
(Wash.)  71  Pac.  1037.  Failure  of  a  sugar 
manufacturer  to  receive  cane  from  a  grower 
under  a  contract  due  to  the  defective  condi- 
tion of  a  tram  road  built  under  his  super- 
vision— Robichaux  v.  Segura  Sugar  Co.  (La.) 
34  So.  744.  W^here  a  contract  was  made  for 
delivery  of  materials  In  weekly  installments 
for  a  certain  period,  but  the  seller  was  noti- 
fleld  not  to  deliver  after  the  first  delivery, 
until  further  notice,  there  was  a  breach  pre- 
venting   performance    of    the    contract    if    it 


§8 


RIGHTS  AFTER  BREACH. 


677 


services  "with  another  party  is  not  a  breach  of  the  first  unless  damage  results  to  the 
other  party  on  the  first  contract,  especially  where  made  with  knowledge  and  eon- 
sent  of  the  latter.*''  The  beginning  of  bastardy  proceedings  is  a  breach  of  a  settle- 
ment by  the  mother  with  the  father  in  consideration  of  which  she  agrees  not  to 
make  further  claim  upon  him.*^ 

(§7)  E.  Rights  after  default  or  nonperformance." — Where  one  party  to  an 
executory  contract  elects  to  treat  it  as  in  full  force  after  breach  by  the  other  who  has 
partially  performed,  the  latter  is  entitled  to  receive  the  benefits  resulting  from  partial 
performance  and  is  liable  for  any  damages  resulting  from  the  breach.*®  That  part  of 
payments  made  by  one  party  to  another,  under  an  agreement  that  the  latter  should 
purchase  property  to  be  conveyed  by  him  to  the  former,  were  made  to  a  third  per- 
son for  such  party  does  not  affect  the  right  to  recover  them  back  on  a  default  in 
conveyance  where  all  payments  were  m^ade  on  the  promises  for  conveyance.*"  Where 
by  the  provisions  of  the  contract,  the  owner,  on  default  of  the  contractor,  may  pro- 
ceed to  complete  construction,  using  materials  placed  on  the  ground  by  the  con- 
tractor, the  owner  has  such  a  qualified  right  to  the  property  in  such  materials  as  to 
make  them  a  security  for  advances  on  the  contract  and  to  give  him  the  right  to 
their  use  for  its  fulfillment.^"  \'\niere  a  contract  provided  that  proceeds  of  certain 
claims  should  be  equally  divided  among  three  parties  after  deducting  expenses,  one 
who  received  his  proportionate  share  after  deduction  of  expenses  cannot  complain 
because  payment  of  the  balance  of  a  certain  item  of  expense  was  not  equally  divided 
between  the  others. ^^  Wliere  a  contract  binding  an  advertiser  to  provide  the  pub- 
lisher with  copy  was  broken  immediately  by  countermanding  of  the  order,  the  pub- 
lisher was  not  entitled  to  insert  matter  prepared  by  himself  in  the  space  covered  by 
the  contract  which  tended  to  advertise  the  business  of  the  other  party  and  then 
sue  for  the  contract  price."  A  contract  for  digging  a  well,  requiring  that  the  land- 
owner should  furnish  board  for  the  employes  and  feed  for  the  teams,  required  the 
contractors  to  use  all  reasonable  diligence  and  care  in  completing  the  work,  and  if 
the  first  attempt  failed  through  negligence,  they  were  not  entitled  to  a  second  trial.''^ 

§  8.  Damages  for  breach.^* — Where  a  contract  is  actively  or  visibly  violated, 
default  is  not  necessary  to  recovery  of  damages,^^  but  a  loss  or  detriment  must  have 


could  have  been  fulfilled  without  such  Inter- 
ference— Pitts  V.  Davey,   40  Misc.    (N.   Y.)    96. 

45.  Contract  to  secure  shipment  of  prod- 
uce over  a  certain  railroad  in  consideration 
of  a  freight  commission  made  by  one  already 
having-  such  a  contract  with  another  rail- 
road made  with  knowledge  and  assent  of 
president  of  first  railroad  company — Paul  v. 
Delaware,  L.  &  W.  R.  Co.,  72  App.  Div.  (N. 
T.)    449. 

46.  Schnurr  v.  Quinn,  83  App.  Div.  (N.  Y.) 
70. 

47.  Where  one  who  has  failed  to  collect  a 
judgment  on  a  certain  trust  deed  and  notes 
sues  for  damages  for  breach  of  a  contract 
for  repurchase  of  the  securities  by  the  per- 
son from  whom  he  bought,  the  latter  cannot 
contend  that  in  event  of  payment  he  would 
be  entitled  to  the  deficiency  judgment — Loeb 
V.  Stern,  198  111.  371. 

48.  Orr  V.   Cooledge,   117   Ga.    195. 

49.  Hayes  v.  Stortz   (Mich.)    90  N.  W.   678. 

50.  Duplan  Silk  Co.  v.  Spencer  (C.  C.  A.) 
115   Fed.    689. 

51.  Adams  v.  Crown  Coal  &  Tow  Co.,  198 
111.    445. 

52.  Wm.  E.  Peck  &  Co.  v.  Kansas  City 
Metal  Roofing,   etc..   Co..   96   Mo.   App.    212. 

63.     Peacock  v.  Gleesen,  117  Iowa,  291, 


54.  The  question  of  damages  is  treated 
fully  in  the  title  "Damages." 

55.  Payne  &  Joubert  v.  Amos  Kent  Brick 
&  Lumber  Co.  (La.)  34  So.  763.  Particular 
cases  showing  application  of  rules  and  esti- 
mating damages  for  breach  of  contract — 
Jeffery  v.  Babcock,  98  111.  App.  15;  Knowlson 
V.  Piehl  (Mich.)  90  N.  W.  415;  Miller  v.  Slg- 
ler  (Mo.  App.)  69  S.  W.  479;  Deering  v. 
Johnson,  86  Minn.  172;  Rule  v.  McGregor,  115 
Iowa,  323;  Boughton  v.  Petigi.y,  72  App. 
Div.  (N.  Y.)  76;  Meyer  v.  Haven,  70  App. 
Div.  (N.  Y.)  529;  Bates  Mach.  Co.  v.  Norton 
Iron  Works  (Ky.)  68  S.  W.  423;  Griflfen  v. 
Sprague  Electric  Co.,  115  Fed.  749.  Dam- 
ages for  breach  of  a  contract  to  deliver  stock 
on  demand,  which  had  been  bought  by  a 
broker  on  a  margin,  is  the  highest  inter- 
mediate value  of  stocks  between  the  defai-It 
and  the  time  reasonably  following  such  de- 
fault, before  which  the  customer,  with  no- 
tice, has  reasonable  opportunity  to  replace 
the  stocks — In  re  Swift,  114  Fed.  947;  Ex 
parte  Harrigan,  Id.  Damages  for  breach  of 
a  contract  to  make  a  loan  is  the  difference 
between  the  rate  of  interest  under  the  con- 
tract, and  the  rate,  not  exceeding  the  local 
rate,-  which  the  borrower  was  required  to 
pay    elsewhere,    unless    it    appears    that    the 


678 


CONTRACTS. 


§8 


befallen."     Eeasonable  diligence  to  prevent  damages  by  reason  of  breach  is  re- 
quired.*^ 

The  general  rule  for  estimating  damages  for  breach  of  a  contract  is  the  differ- 
'mce  between  what  plaintiff  would  have  received  had  the  contract  been  performed 
and  what  he  actually  received  thereunder  if  anything."^  It  must  be  such  amount 
as  will  compensate  the  injured  party  for  the  breach.^^  The  evidence  of  damages 
for  breach  of  a  contract  must  be  reasonably  certain  and  not  given  to  speculation 
and  conjecture,""  else  a  verdict  may  be  directed.®^  Such  damages  as  are  the  nat- 
ural and  probable  consequence  of  the  breach  of  a  contract  are  not  too  remote  or 
speculative  to  be  awarded  in  an  action  thereon,''^  and  damages  naturally  arising  from 
circumstances  which  may  reasonably  be  considered  to  have  been  in  contemplation  of 


money  was  to  be  used  for  a  special  purpose 
and  could  not  be  procured  elsewhere — New 
York  Life  Ins.  Co.  v.  Pope.  24  Ky.  L.  R.  4S5, 
68  S.  W.  851.  Damages  for  breach  of  con- 
tract for  services  as  manager  for  a  few  days, 
■IS  excessive — Hoover  v.  Haynes  (Neb.)  91 
N.  W.  392.  Amount  of  damages  for  breach 
of  contract  for  services  of  an  actress — 
Evesson  v.  Ziegfeld,  22  Pa.  Super.  Ct.  79. 
Damages  for  failure  to  construct  a  building 
according  to  contract  are  measured  by  the 
difference  between  the  value  of  the  building 
as  constructed  and  its  value  as  it  should 
have  been  constructed,  and  not  the  cost  of 
alteration  to  make  it  conform  to  the  con- 
tract— Walter  v.  Hangen,  71  App.  Div.  (N.  Y.) 
40. 

56.  Damages  cannot  be  recovered  for  re- 
fusal to  make  a  loan  unless  it  is  shown  that 
plaintiff  could  not  secure  the  money  else- 
where at  the  same  rate  of  interest  agreed 
upon — New  York  Life  Ins.  Co.  v.  Pope,  24 
Ky.  L.  R.   485,  68  S.  W.   851. 

m.  Error  of  judgment  is  not  want  of 
diligence — The  Thomas  P.  Sheldon,  113  Fed. 
779;  The  S.  L.  \^''atson.  Id.  The  damnified 
party  is  not  required  to  take  steps  which 
would  result  in  a  further  loss  to  himself — 
Tradewater  Coal  Co.  v.  Lee,  24  Ky.  L.  R.  215, 
68   S.   W.   400. 

Where  the  other  parties  to  a  contract 
could  not  reasonably  do  otherwise  than  to 
accept  its  performance,  though  unskillful, 
and  to  make  the  best  possible  use  of  appli- 
ances furnished  in  their  defective  condition, 
he  did  not  thereby  waive  his  right  to  dam- 
ages— Payne  &  Joubert  v.  Amos  Kent  Brick 
&  Lumber  Co.  (La.)  34  So.  763.  By  going 
into  possession  while  the  contractor  was  at 
work,  the  owner  of  a  building  estopped  her- 
self from  recovery  for  delay  in  delivery  of 
the  building — Sarrazin  v.  Alfred  A.  Adams 
&  Co.    (La.)    34  So.   301. 

.•W.  Truitt  V.  Fahey  (Del.  Super.)  52  Atl. 
339. 

50 

L.  R.  906,  70  S.  W.  282.  For  breach  of  a 
contract  to  Install  a  plant  it  Is  the  differ- 
ence between  the  contract  price  and  the 
amount  which  it  would  have  cost  plaintiff — 
Wood  V.  Wack  (Ind.  App.)  67  N.  B.  562. 
On  a  contract  to  provide  for  plaintiff  dur- 
ing life  it  is  the  cost  of  such  care  during 
life  of  plaintiff  less  the  costs  of  the  care  al- 
ready received — Poston  v.  Eno,  91  Mo.  App. 
304.  The  measure  of  damages  to  a  party  who 
is  prevented  from  performing  his  contract 
by  repudiation  of  the  other  is  the  profits 
which  would  have  accrued  from  full  per- 
formance, with  interest  from  time  of  refusal, 


Standard    Oil    Co.    v.    Denton,    24    Ky. 


including  commissions  paid  by  the  party  to 
his  agent  for  obtaining  the  contract — Peck- 
Hammond  Co.  V.  Heifner,  136  Ala.  473.  The 
measure  of  damages  for  breach  of  a  contract 
of  service  before  performance  is  begun  is 
the  contract  price  less  the  amount  that 
might  be  obtained  by  the  exercise  of  rea- 
sonable diligence  for  the  same  services  from 
other  parties — Wm.  E.  Peck  &  Co.  v.  Kansas 
City  Metal  Roofing  &  Corrugation  Co.,  96 
Mo.  App.  212.  Where  a  building  contract 
was  performed  in  an  unworkmanlike  man- 
ner and  out  of  poor  material,  a  balance  re- 
maining in  payment  on  the  contract  was 
allowed  to  the  owner  in  order  to  put  the 
building  in  a  proper  condition  of  construc- 
tion— Sarrazin  v.  Alfred  A.  Adams  &  Co. 
(La.)  34  So.  301.  Contract  for  service  de- 
pendent on  peculiar  ability  of  plaintiff — 
United  Press  v.  A.  S.  Abell  Co.,  79  App.  Dlv. 
(N.    Y.)    550. 

On  breacli  of  contract  for  sale  the  measure 
of  damages  is  the  difference  between  the 
price  to  be  paid  and  money  value  at  time 
of  breach,  not  exceeding  the  amount  de- 
manded in  the  suit — V\^allingford  v.  Aitkins, 
24  Ky.  L.  R.  1995,  72  S.  W.  794;  but  in  Michi- 
gan the  measure  of  damages  for  refusal  to 
accept  personal  property  on  a  sale,  after 
tender,  is  fixed  by  law  at  the  contract  price. 
Express  provisions  of  Comp.  Laws  §  4590,  as 
to  property,  the  title  to  which  is  vested  by 
reason  of  tender  under  §  3258 — Dowagiac 
Mfg.   Co.   V.   Higinbotham,   15   S.   D.   547. 

60.  Truitt  V.  Fahey  (Del.  Super.)  52  Atl. 
339. 

Evidence  of  sales  of  similar  goods  between 
the  time  of  the  breach  of  the  contract  and 
the  time  of  trial  may  be  shown  as  bearing 
upon  the  damages  resulting  to  plaintiff,  by 
loss  of  profits — Hichhorn  v.  Bradley,  117 
Iowa,  130.  Where  the  price  of  the  sale  of 
cane  for  sugar  was  to  be  regulated  by  the 
market  price  of  sugar,  evidence  of  what  de- 
fendant paid  during  the  season  for  cane  re- 
ceived under  a  contract  with  plaintiff  and 
under  similar  contracts  with  other  cane 
growers  is  properly  admitted  and  the  aver- 
age of  such  price  may  be  accepted  as  the 
price  which  cane  lost  by  reason  of  defend- 
ant's negligence  would  have  brought,  if  he 
had  accepted  delivery  according  to  contract — 
Robichaux  v.  Segura  Sugar  Co.  (La.)  34  So. 
744. 

61.  Raymond  v.  Yarrlngton  (Tex.  Civ. 
App.)    69  S.  W.   436. 

62.  Herring  v.  Armwood,  130  N.  C.  177; 
Holt  Mfg.  Co.  V.  Thornton,  136  Gal.  232,  68 
Pac.    708. 


§  9A 


RESCISSION.     ABANDONMENT. 


679 


the  parties  at  time  of  contract  may  also  be  awarded.'^  Interest  may  be  allowed  as 
an  element  of  damages  from  the  time  of  the  commencement  of  the  action/*  but  if 
the  damages  be  unliquidated  they  must  be  certain  and  definite  in  their  possibility 
of  estimation."^  The  damages  may  also  include  any  moneys  plaintiff  may  have 
advanced  on  the  contract  or  expense  which  he  may  have  incurred."^ 

Prospective  profits  may  be  recovered  where  they  are  not  so  uncertain  as  to  be 
incapable  of  proof,"  but  mere  speculative  and  conjectural  estimates  of  profits  which 
might  possibly  have  been  made  cannot  be  allowed.^^  The  deprivation  of  intellectual 
enjoyment  and  mental  suffering  may  be  elements  of  damages  resulting  from  breach 
of  a  contract  in  Louisiana."® 

A  party  who  without  fault  fails  to  completely  perform  may  recover  for  what 
he  has  done.'^"  His  measure  of  damages  is  such  proportion  of  the  entire  price  as 
the  fair  cost  of  the  work  done  bears  to  the  fair  cost  of  the  whole  work,  together  with 
special  profits  in  respect  to  the  work  not  done  as  he  would  have  realized  by  per- 
forming it.''* 

The  contract  may  itself  specify  and  fix  what  shall  be  the  recovery  for  a  breach," 
but  an  unreasonable  penalty  will  not  be  enforced.''^  General  damages  may  be  re- 
covered in  addition  to  a  stipulated  right  to  deduct  from  the  price  enough  to  com- 
plete an  abandoned  contract.'^* 

§  9.     Rescission  and  abandonment  of  contract.''^     A.  Contracts  which  may  be 


63.  Meyer  v.  Haven,  70  App.  Div.  (N.  Y.) 
529.  Where  a  passenger  rented  a  state- 
room on  a  steamer  for  the  nig-ht,  but  failed 
to  notice  a  condition  on  the  back  of  his 
ticket  reserving  the  right  to  the  carrier 
to  resell  rooms  not  called  for  within  30 
minutes  after  departure,  and  did  not  call  for 
his  room  within  that  time  so  that  it  was  re- 
sold, and  was  refused  the  return  of  his 
money  or  another  room,  so  that  he  was 
compelled  to  sit  up  all  night,  he  was  not  en- 
titled to  exemplary  but  might  recover  ac- 
tual damages — Clark  v.  Railroad  Co.,  40  Misc. 
(N.  Y.)   691. 

64.  Roussel  v.  Mathews,  62  App.  Div.  (N. 
Y.)  1;  Peck-Hammond  Co.  v.  Heifner,  136 
Ala.  473.  In  an  action  on  a  breach  of  war- 
ranty of  chattels.  Interest  may  be  allowed 
on  the  difference  between  the  actual  worth 
of  the  chattels  and  their  value  had  they 
been  as  represented — Ash  v.  Beck  (Tex.  Civ. 
App.)  68  S.  W.  53.  Damages  for  delay  in 
the  carriage  of  live  stock — Texas  &  P.  Ry. 
Co.  v.  Smissen   (Tex.  Civ.  App.)    73  S.  W.   42. 

65.  Dady  V.  Condit,  104  111.  App.  507; 
Brownell  Improvement  Co.  v.  Critchfleld,  197 
111.    61. 

66.  Nelson  v.  Hatch,  70  App.  Div.  (N.  Y.) 
206. 

67.  Profits  from  increase  of  a  flock  of 
sheep — Schrandt  v.  Young  (Neb.)  89  N.  W. 
607.  Profits  from  cattle  to  be  kept  by  plain- 
tiff and  sold  for  profits  to  be  divided  between 
parties — Rule  v.  McGregor,  115  Iowa,  323. 
The  amount  to  be  recovered  Is  not  limited 
to  the  actual  expenses  to  be  incurred  by  the 
plaintiff,  but  may  include  whatever  chance 
of  profits  he  may  have  derived  from  con- 
tracts, the  performance  of  which  was  pre- 
vented by  the  breach — Pender  Lumber  Co. 
V.  Wilmington  Iron  Works.  130  N.  C.  584. 
On  breach  of  a  contract  to  deliver  lumber 
within  a  certain  time,  the  injured  party  may 
recover  to  the  amount  of  the  loss  sustained 


on  profits  of  his  business  of  which  he  has 
been  deprived — E.  B.  Williams  &  Co.  v.  Bien- 
venue,   109   La.   1023. 

68.  Douglass  V.  Railroad  Co.,  51  W.  Va. 
523. 

69.  Lewis    V.    Holmes,    109   La.    1030. 

70.  Tichenor  V.  Bruckheimer,  40  Misc.  (N. 
Y.)  194.  Where  a  party  to  a  contract  is  pre- 
vented in  its  completion  by  the  other  after 
part  performance,  the  measure  of  damages 
is  the  contract  price  for  the  work  already 
done  and  not  its  market  price — Hoyle  v. 
Stellwagen,  28  Ind.  App.   681. 

71.  Wilson  v.  Borden  (N.  J.  Err.  &  App.) 
54  Atl.  815. 

72.  Where  a  contract  was  made  for  the 
conduct  of  certain  litigation  in  considera- 
tion of  conveyance  of  certain  lands  at  a 
specified  time,  or  in  default  thereof  of  pay- 
ment of  a  certain  amount  of  money  after 
failure  in  the  conveyance,  the  other  party 
was  entitled  to  recover  the  full  amount 
specified  by  the  contract  and  was  not  limited 
to  actual  damages — Efcrich  v.  Durkee  (Colo. 
App.)  72  Pac.  814.  Though  the  essential 
features  of  a  scheme  for  securing  and  pub- 
lishing classified  advertisements  were  not 
originated  by  the  seller,  if  certain  forms  by 
which  it  was  to  be  effected  were  devised  by 
him.  to  that  extent  the  use  of  the  scheme 
by  a  purchaser  was  such  a  use  of  the  plan 
as  entitled  the  seller  to  recover  the  amount 
of  stipulated  damages  provided  for  in  a 
contract  of  purchase  and  sale — Taylor  v. 
Times   Newspaper  Co.    (Minn.)    93  N.   W.    659. 

73.  No  evidence  was  offered  as  to  actual 
damage  sustained — Zimmerman  v.  Conrad 
(Mo.   App.)    74   S.   W.   139. 

74.  McGrath  v.  Hogan,  72  App.  Div.  (N. 
Y.)    152. 

75.  See  Cancellation  of  Instruments,  ante, 
p.  413.  which  treats  of  the  procedure  to  an- 
nul written  instruments.  Rescission  or 
abandonment  of  contracts  with  United  States, 
see    "United   States." 


680 


CONTRACTS. 


§  9B 


rescinded;  manner  of  rescission.'"^ — A  marriage  contract  cannot  be  rescinded  or 
modified  except  as  provided  by  laws  of  the  land  even  though  one  or  both  of  these 
parties  may  have  violated  its  terms  or  obligations."  Negligence  of  a  party  will  not 
prevent  his  right  to  rescind  the  contract,  if  the  other  party  has  not  been  injured  by 
such  negligence.^^  If  a  contract  is  made  for  the  benefit  of  a  third  person,  neither 
of  the  immediate  parties  can  rescind  it  or  prejudice  the  rights  without  his  consent." 
If  the  parties  to  a  contract  deal  with  the  subject  matter  in  a  manner  which  shows 
no  intention  to  demand  a  strict  compliance  with  the  terms  as  to  time,  neither  will 
be  permitted  to  rescind  without  giving  the  other  a  reasonable  opportunity  to  per- 
form.^" Though  according  to  its  terms  a  contract  may  be  terminated  at  will  of 
either  party  on  reasonable  notice,  it  does  not  follow  that  it  is  binding  upon  them 
as  long  as  they  continue  to  act  thereunder  before  revocation  or  termination.*^  A 
mere  claim  by  one  party  that  the  other  had  broken  the  contract  and  that  he  had 
acted  in  accordance  with  such  breach  is  insufficient  to  show  a  rescission.®^  A  eon- 
tract  in  writing  for  sale  of  realty  may  be  rescinded  by  parol.*^  A  building  con- 
tract providing  that  if  the  Contractor  is  not  proceeding  with  sufficient  dispatch  or 
is  departing  from  the  plans,  the  contract  may  be  canceled  after  due  notice,  cannot 
be  canceled  by  the  other  party  solely  on  his  own  decision  as  to  the  state  of  the  work 
and  its  performance  by  the  contractor.®* 

(§9)  B.  Causes  for  rescission.  Mistake;  default  or  defective  performance.^^ 
— That  a  mistake  may  be  ground  of  setting  aside  a  contract,  it  must  have  been  mutual 
and  rescission  must  be  made  without  delay  after  discovery  ;®^  then  the  party,  who  re- 
lied on  the  representations  of  the  other  who  knew  he  was  so  relying,  may  rescind.®^  A 
willful  failure  of  one  party  to  a  contract  to  perform  will  entitle  the  other  to  a  re- 
scission without  alleging  or  proving  fraud,*®  unless  the  latter  knew  of  and  sanctioned 
the  default.®*  Violation  of  a  contract  will  warrant  cancellation,^"  but  not  unless 
the  party  is  injured  by  it,®^  or  where  the  violation  was  due  to  unauthorized  acts  of 


76.  Expense  incurred  by  lessee  as  pre- 
cluding termination  of  lease  by  lessor  under 
its  terms — American  Window  Glass  Co.  v. 
Williams,  30  Ind.  App.  685.  A  suit  in  equity 
by  the  grantor  In  an  absolute  deed  for  a 
reconveyance  under  an  oral  agreement  made 
when  the  deed  was  executed,  was  not  an 
election  to  treat  such  oral  agreement  as  re- 
scinded, so  as  to  prevent  him  from  suing 
for  the  damages  for  its  breach,  where  it  did 
not  appear  that  the  suit  sought  a  remedy 
without  the  oral  contract  or  specific  per- 
formance of  It.  and  defendant's  answer  did 
not  plead  the  statute  of  frauds  and  relied 
on  the  oral  agreement — Hurley  v.  Donovan, 
182   Mass.    65. 

77.  Palmer  v.  Palmer  (Utah)  72  Pac.  3. 

78.  Failure  to  docket  mortgage — Jones 
V.  Glathart.  100  111.  App.   630. 

79.  Tweeddale  v.  Tweeddale  (Wis.)  93  N. 
W.   440. 

SO.     Price  v.   Beach.    20  Pa,   Super.  Ct.   291. 

81.  Kenny  v.   Knight.    119   Fed.    475. 

82.  Walsh  V.  Hyatt,  74  App.  Div.  (N.  Y.) 
20. 

83.  Mahon  v.  Leech,  11   N.  D.   181. 

84.  Hoyle  V.  Stellwagen,  28  Ind.  App. 
681. 

85.  Mistake  as  ground  of  rescission — Illi- 
nois Cent.  R.  Co.  v.  Manion,  23  Ky.  L.  R. 
2267.   67   S.   W.    40. 

86.  Travelers'  Ins.  Co.  v.  Jones  (Tex.  Civ. 
App.)    73   S.  W.   978. 

87.  Oarrett  Co.  v.  Halsey,  38  Misc.  (N. 
T.)    438. 


88.  Agreement  to  deed  farm  at  death  in 
consideration  of  support  during  life — Howlin 
V.  Castro,  136  Cal.  605,  69  Pac.  432.  Abandon- 
ment of  the  contract  will  justify  rescission 
— Vickers  v.  Electrozone  Commercial  Co.,  67 
N.  J.  Law,  665.  Where  in  violation  of  the 
terms  of  a  contract  one  of  the  parties  failed 
to  make  payments  notwithstanding  the  de- 
mands of  the  other,  the  latter  was  justified 
in  rescinding  the  contract — Eastern  Forge 
Co.  V.  Corbin,  182  Mass.  590.  Where  goods 
delivered  under  a  contract  are  defective  in 
quality,  the  buyer  is  justified  in  rescinding 
— Grafeman  Dairy  Co.  v.  St.  Louis  Dairy  Co., 
96  Mo.  App.  495.  Under  a  contract  to  furnish 
coal  to  a  city  for  a  certain  period  on  monthly 
payments,  such  monthly  payments  were  of 
the  essence  of  the  contract  and  on  failure 
thereof,  the  seller  was  authorized  to  termi- 
nate the  contract  though  the  city  had  fail- 
ed to  perform  Its  contract  in  analyzing  the 
coal  through  no  lack  of  diligence — Baltimore 
V.   Schaub  Bros..   96  Md.   534. 

89.  Peuchen  v.  Behrend,  71  App.  Div.  (N. 
T.)    619. 

00.  Privilege  granted  for  a  show — Sfackay 
V.  Minnesota  State  Agricultural  Soc.  (Minn.) 
92  N.  W.  539. 

91.  Where  the  terms  of  a  contract  re- 
quired one  of  the  parties  to  perform  work 
for  no  other  persons  than  the  other  party, 
the  performance  of  such  other  work  will  not 
justify  a  rescission  of  the  contract  where  it 
did  not  interfere  with  the  work  performed 
for  the  parties  to  this  particular  contract — 
Reindl  v.  Heath,  115  Wis.  219. 


§  '>B 


CAUSES    FOR   RESCISSION. 


681 


third  persons,*^  Demands  made  by  one  of  the  parties  inconsistent  with  the  terms 
of  the  contract  will  release  the  other  party  from  performance.®^  If  the  contract  is 
severable,  default  in  one  part  will  not  justify  rescission  of  the  whole  contract,®*  nor 
will  default  in  a  subsequent  parol  subsidiary  agreement  justify  rescission  of  the 
prior  written  contract;®^  but  default  in  part  of  an  inseparable  contract  will  enable 
rescission  of  the  whole.®"  Where  one,  because  of  insolvency,  is  compelled  to  pay  for 
property  bought  on  delivery  and  refused  so  to  do,  he  has  no  right  to  rescind  a  con- 
tract for  purchase  merely  because  of  the  manner  adopted  by  the  vendor  in  enforcing 
his  remedy.®^ 

Incompetency;  fraud  and  misrepresentation. — The  contract  of  a  person  of  weak 
mental  powers  will  be  rescinded  in  equity,  when  it  appears  that  he  has  not  exercised 
a  deliberate  judgment  or  has  been  misled  by  undue  influence.®^  Fraud  is  cause  for 
rescission,®®  though  the  contract  itself  may  have  been  illegal,^  unless  the  fraud  was 
regarding  trivial  matters  which  could  not  have  influenced  the  other  party.^  The 
fraud  must  consist  in  representations  of  existing  facts,  not  mere  expressions  of  opin- 
ion regarding  future  probabilities,^  but  such  expressions  as  to  the  future  may  suf- 
fice if  false  and  the  party  making  them  knew  they  could  not  be  fulfilled.*     The 


92.  An  agreement  for  settlement  of  claims 
by  creditors  provided  they  would  not  seek 
to  enforce  their  claims  by  hostile  procedure, 
cannot  be  rescinded  merely  because  of  acts 
of  a  deputy  sheriff  in  going-  upon  the  prem- 
ises of  the  debtors  and  levying  on  execu- 
tion, where  he  did  not  take  actual  posses- 
sion of  the  property  and  where  he  went 
contrary  to  the  instructions  of  the  creditors 
— Mechanics'  Nat.  Bank  v.  Jones,  76  App. 
Div.    (N.   Y.)    534. 

93.  Cooney  v.  McKinney,  25  Utah.  329,  71 
Pac.  485.  Where  after  a  contract  was  part- 
ly performed,  one  of  the  parties  demanded 
conditions  not  required  by  its  terms  or  by 
the  customs  of  the  trade  with  which  it  was 
concerned,  the  other  was  entitled  to  rescind 
the  contract,  refuse  further  performance  and 
recover  compensation  due  for  the  part  al- 
ready performed — Minaker  v.  California  Can- 
neries Co.,   138   Cal.   239,  71  Pac.   110. 

94.  "Where  a  contract  provides  for  the 
performance  of  an  entire  w^ork  in  a  certain 
time  and  of  each  particular  part  of  the 
work  within  a  proportionate  part  of  the 
time  and  for  rescission  by  the  other  party 
for  failure  to  perform,  a  failure  to  perform 
the  first  part  of  the  work  within  its  pro- 
portion of  time  will  not  justify  a  rescission 
of  the  entire  contract — Cody  v.  New  York,  71 
App.  Div.  (N.  Y.)  54.  A  contract  calling  for 
several  acts  within  a  reasonable  time  for 
which  consideration  has  been  paid  in  full, 
cannot  be  rescinded  for  failure  to  perform 
one  of  the  subsidiary  acts  within  a  rea- 
sonable time,  the  remedy  for  such  failure 
being  a  suit  for  damages — Luce  v.  New 
Orange  Industrial  Ass'n,  68  N.  J.  Law,  31. 

95.  Under  a  building  contract,  giving  the 
contractor  the  right  to  cancel  If  the  sub- 
contractor gets  behind  in  his  work,  and 
providing  for  weekly  payments  to  the  lat- 
ter In  a  certain  amount,  failure  of  the  sub- 
contractor to  carry  out  a  subsequent  parol 
agreement  to  put  on  more  men  if  the  weekly 
payments  be  Increased,  because  of  a  strike 
for  one  day  of  such  extra  men  due  to  the 
payments  being  Insufficient  to  meet  their 
wages,  will  not  warrant  the  contractor  in 
cancelling  the  contract — O'Dwyer  v.  Smith. 
38  Ml«c.   (N.  T.)    136. 


96.  A  failure  to  pay  as  agreed  for  part 
of  goods  delivered  will  entitle  the  seller  to 
rescind  and  sue  for  those  delivered  at  the 
contract  price — Purcell  Co.  v.  Sage,  200  111. 
342. 

97.  Pratt  V.  Freeman  &  Sons  Mfg.  Co.,  115 
Wis.   648. 

98.  Meyer  v.  Fishburn  (Neb.)  91  N.  W. 
534. 

99.  Where  a  contract  for  building  a  rail- 
road provides  that  the  amount  of  work  shall 
be  determined  by  the  calculations  of  the  en- 
gineer in  charge,  any  fraud  by  him  Is  a 
ground  for  relief  from  the  contract — Illinois 
Cent.  R.  Co.  v.  Manion,  23  Ky.  L.  R.  2267,  67 
S.    W.    40. 

1.  Recovery  of  money  paid  to  a  national 
bank  on  a  contract  of  which  rescission  Is 
sought  for  fraud,  is  not  prevented  because 
the  transaction  was  forbidden  by  law,  since 
to  prevent  rescission  is  to  compel  reliance 
on  the  contract  with  its  attendant  burden  of 
fraud — Petrie  v.  National  Bank  &  Loan  Co., 
167  N.  Y.  589;  National  Bank  &  Loan  Co. 
V.  Petrie,  189  U.  S.  423;  National  Bank  & 
Loan  Co.  v.   Carr,   189  U.   S.    426. 

2.  Garrison  v.  Technic  Electrical  Works. 
63   N.    J.   Eq.    806. 

3.  False  representations  In  regard  to  the 
capacity  of  certain  cotton  presses  and  the 
merchantable  quality  of  the  cotton  produced 
by  them,  together  with  representations  as 
to  savings  in  freight  and  the  successful  op- 
erations of  the  machines,  which  induced  the 
making  of  a  contract,  were  not  merely  ex- 
pressions of  opinion  as  to  future  transac- 
tions but  representations  of  existing  facts 
within  the  knowledge  of  defendants,  en- 
titling plaintiffs  to  rescind  the  contract  and 
secure  cancellation  of  deeds  thereunder — 
American  Cotton  Co.  v.  Collier  (Tex.  Civ. 
App.)    69   S.  W.   1021. 

4.  Though  representations  which  secured 
the  execution  of  a  contract,  were  mere  ex- 
pressions of  opinion  as  to  the  future,  they 
are  sufficient  for  cancellation  of  such  con- 
tract If  they  were  false  and  the  parties 
making  them  knew  that  they  could  not  be 
performed — American  Cotton  Co.  v.  Collier 
(Tex.   Civ.   App.)    69   S.    W.    1021. 


682 


CONTRACTS. 


§  9C 


misrepresentation  must  relate  to  material  facts  and  must  be  made  with  intent  to 
deceive.'^  An  accord  and  satisfaction  may  be  rescinded  for  fraud  and  the  original 
liability  enforced.' 

Insolvency;  accident  or  natural  causes. — Mere  danger  of  insolvency  of  the  other 
party  will  not  warrant  a  rescission  of  the  contract  by  a  failure  to  perform ;  insolvency 
must  exist/  Insolvency  of  a  purchaser  at  time  of  a  contract  of  sale  is  not  ground 
for  rescission  by  the  seller.*  Where  a  contract  is  made  for  the  construction  of  a 
building  on  a  foundation  and  out  of  materials  to  be  furnished  by  the  owner,  and 
after  partial  completion  it  is  destroyed  by  a  storm,  performance  has  not  been  ren- 
"iered  so  impossible  as  to  cause  a  termination  of  the  contract  and  enable  the  builder 
to  recover  both  for  the  labor  lost  and  the  erection  of  a  new  building;  nor  is  the 
contract  terminated  on  the  theory  that  the  materials  on  which  the  contractor  agreed 
to  work  have  been  destroyed." 

(§9)  C.  ^yaiver  of  right  to  rescind. — Though  a  party  has  decided  to  rescind 
his  contract,  he  may,  while  the  conditions  are  still  unchanged,  decide  to  go  on  with 
the  contract,  though  he  has  been  notified  by  the  other  party  that  he  will  consider  the 
contract  at  an  end  ;^°  but  if  he  actually  intends  to  rescind  he  must  do  no  act  incon- 
sistent with  such  intention.^^  He  may  receive  part  payment  after  part  perform- 
ance without  wai%ang  his  right  to  rescind. ^^  If  two  compromises  be  of  the  same 
contract,  acceptance  of  delayed  performance  in  payment  of  one  waives  a  delay  in 
payment  of  the  other.^^ 

(§9)  D.  Time  for  rescission. — The  injured  party  must  rescind  within  a  rea- 
sonable time  after  discovery  of  the  fraud  or  after  a  reasonable  opportunity  for  its  dis- 
covery.^* Delay  is  f atal,^"^  unless  the  party  is  fraudulently  prevented  from  learning 
the  facts." 

(§9)  E.  Conditions  precedent  to  rescission;  return  of  benefits  or  considera- 
tion.^''— One  desiring  to  rescind  a  contract  for  fraud,^*  or  want  of  consideration,^*  as, 
for  defects  in  subject-matter,^"  must  return  or  offer  to  return  the  benefits  or  consider- 
ation received  within  a  reasonable  time  after  discovery  ;**  but  one  refusing  to  perform 


6.     Scott  V.   Boyd   (Va.)   42  S.  E.   918. 

6.  See  ante,  pp.   10,   11. 

7.  P.  W.  Kavanaugh  Mfg.  Co.  v.  Rosen 
(Mich.)    92    N.    W.    788. 

8.  Johnson  v.   Groff,    22   Pa.   Super.   Ct.   85. 

9.  Vogt  V.  Hecker    (Wis.)    95   N.   W.    90. 

10.  Perkins  v.   Frazer.  107  La.   390. 

11.  The  filling  of  a  portion  of  an  order 
without  objection  will  waive  the  right  to 
rescind  a  contract  because  the  agent  through 
whom  it  was  sent  for  acceptance  was  in- 
terested In  the  firm  for  which  the  order 
was  given,  where  such  fact  was  known  be- 
fore performance — Columbia  Mfg.  Co.  v. 
Hastings  (C.  C.  A.)  121  Fed.  328.  Where 
a  party  knew  when  he  filed  an  original  bill 
for  rescission,  that  a  fraud  had  been  prac- 
ticed upon  him,  and  then  obtained  an  in- 
junction against  the  other  parties,  restrain- 
ing them  from  breaking  his  contract,  he  has 
waived  his  right  to  a  rescission — Tolman  v. 
Coleman,   104  111.  App.   70. 

12.  It  is  sufficient  that  he  still  refuses 
to  complete  performance — Eastern  Forge  Co. 
v.  Corbin,   182  Mass.  590. 

13.  Compromises  of  county  bonds — Dyer 
V.  Muhlenberg  County  (C.  C.  A.)  117  Fed. 
586.  It  was  held  immaterial  that  acceptance 
was  in  part  the  act  of  another  if  he  was 
privy  to  the  contract. 

14.  Dickey  v.  Winston  Cigarette  Mach. 
Co.,  117  Ga.  131;  Bostwick  v.  Mutual  Life 
Ins.    Co.    (Wis.)    92    N.    W.    246;    Pekin    Plow 


Co.  V.  Wilson  (Neb.)  92  N.  W.  176.  Rescis- 
sion for  fraud,  undue  influence  or  duress — 
Mortimer  v.  McMullen,  202  111.  413. 

15.  A  transfer  by  heirs  of  a  succession 
to  the  usufructuary  of  the  property  will  not 
be  disturbed  after  ten  years — Sallier  v.  Ro- 
steet,   108  La.   378. 

16.  Four  and  a  half  months  delay  In  dis- 
covering a  fraud  In  the  substitution  of  an- 
other insurance  policy  for  the  one  which 
the  applicant  expected  to  receive,  will  not, 
as  a  matter  of  law,  forfeit  his  right  to  re- 
scission, where  he  ■was  fraudulently  prevent- 
ed from  examining  the  policy  at  the  time  of 
delivery — Bostwick  v.  Mutual  Life  Ins.  Co. 
(Wis.)    92   N.   W.    246. 

17.  Sufficiency  of  placing  in  statu  quo 
to  authorize  rescission  of  a  contract  for  ex- 
change of  stocks  and  bonds  of  an  old  cor- 
poration for  those  of  a  new  corporation — 
Jewell   V.   Mclntyre,   172  N.  T.   638. 

18.  Mortimer   v.    McMullen.    202   111.    413. 

19.  Sale  of  machine  which  proved  defect- 
ive— Massillon  Engine  &  Thresher  Co.  v. 
Schirmer    (Iowa)     93    N.    W.    599. 

20.  J.  I.  Case  Threshing  Mach.  Co.  v. 
Lyons,  24  Ky.  L.  R.  1862,  72  S.  W.  356;  Mas- 
sillon Engine  &  Thresher  Co.  v.  Schirmer 
(Iowa)   93  N.  W.  599. 

21.  One  who  is  prevented  in  fulfillment 
of  his  contract  after  part  performance,  by 
acts  of  the  other,  cannot  recover  considera- 
tion   paid    during    the    time    of    performance. 


Vi- 


RESCISSION  UNDER  TERMS. 


683 


a  contract  because  of  fraud  in  its  incejjtion  need  not  restore  that  which  in  any  event 
he  would  recover/^ and  on  rescission  of  a  contract  because  of  undue  influence,  it  is 
not  necessary  that  the  property  received  should  be  returned,  but  a  mere  tender  of 
the  value  is  sufficient.^* 

(§9)  F.  Rescission  or  termination  under  terms  of  contract. — Contracts  may 
be  rescinded  imder  terms  providing  for  rescission,^*  but  the  rescission  must  faithfully 
follow  such  terms.-"^  Where  a  contract  authorizes  termination  by  one  party  if  the 
other  suspends  work  for  10  days,  Sundays  should  not  be  counted  in  computing  the 
suspension.2^  If  a  buyer  attempts  to  return  goods,  where  under  the  contract  he 
has  no  right  to  return  them,  and  the  seller  refuses  to  accept,  there  can  be  no  recov- 
ery on  the  price  paid.^^ 

Contracts  for  service  of  a  continuing  nature  not  specifying  any  time  or  dura- 
tion may  usually  be  revoked  at  will  by  either  party  upon  reasonable  notice  and  in 
good  faith.*' 


because  of  a  breach  committed  by  the  other 
srlving-  him  a  right  to  rescind  where  he  can- 
not place  the  other  party  in  statu  quo.  Rent 
of  premises  for  restraurant  privileges — De 
Montague  v.  Bacarach,  181  Mass.  256. 
Though  a  contract  is  unilateral,  it  becomes 
binding  after  the  party  who  is  to  perform 
acts  thereunder  has  proceeded  with  the  per- 
formance, and  cannot  be  rescinded  by  the 
other  party  without  a  restoration  of  his  ex- 
penses incurred.  Contract  to  pay  railroad 
company  a  certain  sum  on  completion  of 
road — Los  Angeles  Traction  Co.  v.  Wilshire, 
135   Cal.   654,    67   Pac.    10S6. 

22.  Hargadine-McKittrick  Dry  Goods  Co. 
V.  Swofford  Bros.  Dry  Goods  Co.,  65  Kan. 
572,  70  Pac.  5S2.  It  need  not  be  done  where 
for  instance  an  accord  and  satisfaction  is 
treated  as  void  for  fraud  and  an  action 
brought  on  the  original  liability  so  that  the 
money  paid  may  be  proved  as  p.artial  satis- 
faction. See  Accord  and  Satisfaction,  ante, 
p.   11   et  seq.  and  cases  there  cited. 

23.  Meyer  v.  Fishburn  (Neb.)  91  N.  W. 
534. 

24.  Where  It  appears  that  work  under  a 
building  contract  was  defectively  done,  the 
owner  has  cause  to  terminate  the  contract 
and  take  charge  of  the  building,  where  there 
Is  a  stipulation  that  in  case  of  default  he 
would  have  such  right — Hay  v.  Bush  (La.) 
34  So.  692. 

35.  Contract  for  macadamizing  a  drive- 
way and  authorizing  the  city  to  rescind  on 
failure  of  the  contractor  to  complete  any 
part  of  the  work  to  the  satisfaction  of  the 
park  commissioners — Cody  v.  New  York.  71 
App.  Div.  (N.  T.)  54.  Where  a  contract  re- 
quires that  a  machine  sold,  should  be  re- 
turned if  It  fails  to  ■work,  a  mere  notice 
that  it  is  held  subject  to  the  seller's  order 
is  not  a  compliance  therewith — Dickey  v. 
Winston  Cigarette  Mach.  Co.,  117  Ga.  131. 
A  notice  by  the  purchaser  of  a  machine  that 
it  was  held  subject  to  the  seller's  order, 
was  In  compliance  with  the  terms  of  the 
contract  for  rescission  which  provided  that 
he  should  return  it  at  once  to  the  agent  if 
it  failed  to  work,  and  he  was  not  relieved 
from  liability  where  the  seller  never  took 
possession — McCormick  Harvesting  Mach. 
Co.  V.  Allison,  116  Ga.  445.  Where  a  contract 
provided    that   If   one   of   the   parties    should 


suspend  operations  thereunder  for  10  days, 
the  other  would  be  entitled  to  rescind,  the 
condition  was  not  broken  by  suspension  of 
work  for  9  days  and  an  offer  of  continu- 
ance on  the  10th,  from  performance  of  which 
the  party  was  prevented  by  default  of  the 
other  who  was  entitled  to  rescission — Brown 
v.  Rasin  Monumental  Co.  (Md.)  55  Atl.  391. 

Building  contracts. — A  condition  that  the 
certificate  of  the  architect  to  the  effect 
that  the  contractor  is  not  fulfilling  his  con- 
tract as  precedent  to  a  termination  of  the 
contract  by  the  owner  is  absolute — White  v. 
Mitchell.  30  Ind.  App.  342.  Where  a  contract 
for  a  building  provided  that  the  owner  might 
terminate  the  employment  and  complete  the 
work  on  a  certificate  of  the  architect  to  the 
effect  that  the  contractor  is  not  properly 
performing  his  contract,  a  certificate  that 
the  work  Is  not  being  properly  performed 
and  that  the  owner  may,  if  he  deems  best, 
take  such  action,  is  insufficient — Id.  Where 
a  building  contract  provided  that  the  owner 
may  terminate  the  contract  if  the  architect 
shall  certify  that  the  contractor  is  not  com- 
plying with  the  contract,  the  architect  oc- 
cupies a  judicial  position  thereunder  and 
a  private  letter  expressing  his  opinion  to 
the  owner,  of  which  no  communication  is 
made  to  the  contractor,  is  insufficient  to 
justify  a  rescission — Wilson  v.  Borden,  68 
N.  J.  Law,  627.  Where  a,  contract  provided 
that  a  certificate  by  the  architect  to  the 
owner  that  the  contractor  has  refused  or 
neglected  to  supply  workmen  or  materials 
to  complete  the  contract  will  entitle  the  own- 
er to  terminate  the  employment  on  three 
days'  written  notice  to  the  contractor,  the 
owner  was  not  entitled  under  such  condi- 
tion to  give  notice  merely  of  an  intention 
to  furnish  labor  and  materinls  and  not  to 
terminate  the  contract — McClellan  v.  Mc- 
Lemore    (Tex.  Civ.  App.)    70  S.  W.   224. 

2G.  Brown  v.  Rasin  Monumental  Co.  (Md.) 
55   Atl.    391. 

27.  Loader  v.  Brooklyn  Chair  Co.,  75  App. 
Div.    (N.   T.)    621. 

28.  Taylor  v.  Martin,  109  La.  137.  Com- 
pare titles  Agency,  ante,  p.  47  and  cases 
cited,  also  Master  and  Servant  to  be  pub- 
lished  in   a  later  issue. 

29.  Kelly  V.  Short  (Tex.  Civ.  App.)  75  S. 
W.  877.  Compare  Accord  and  Satisfaction, 
ante,   p.    8. 


684 


CONTRACTS. 


§  9G 


(§9)  O.  Rescission  hy  mutual  agreement. — A  contract  is  entirely  abrogated 
by  repudiation  by  both  of  the  parties  where  each  recognized  and  accepted  the  repudia- 
tion of  the  other  and  acted  thereon,-^  but  a  subsequent  agreement  or  acquiescence  of 
both  is  necessary,^"  though  this  may  be  shown  by  implication  from  circumstances  and 
the  conduct  of  the  parties. ^^  No  consideration  other  than  the  release  from  their 
respective  obligations  is  necessary  to  abrogation  of  a  mutually  executory  contract 
by  agreement  of  the  parties.^-  Wliere  one  party  claimed  his  right  to  rescind  in 
proper  time,  and  asked  for  a  return  of  the  consideration  which  defendant  promised, 
the  latter  acquiesced  in  the  rescission.^^  "Wliere  one  of  the  parties  withdrew  before 
the  contract  was  complete,  the  other  accepted  his  withdrawal  by  securing  another 
person  to  take  his  place,  thereby  relieving  him  from  obligation,'* 

(§9)  11.  Rights  on  rescissioti. — One  party  may  sue  to  recover  money  paid  on  a 
contract  from  the  other,  where  the  latter  acts  in  a  manner  assenting  to  the  rescission 
of  the  contract  by  the  other  after  such  rescission,^^  but  on  disaffirmance  and  suit 
to  recover  consideration,  profits  cannot  be  recovered  but  merely  the  amount  paid 
with  interest.^®  If  the  owner  of  a  partially  completed  building  wrongfully  prevents 
the  builder  from  completing  it  and  the  latter  elects  to  treat  his  act  as  a  rescission 
of  the  contract,  recovery  may  be  had  for  reasonable  value  of  the  work  done  prior  to 
the  decision  where  no  apportionment  of  compensation  is  provided  by  the  contract.'^ 
Where  under  a  contract  to  build  a  railroad,  the  decision  of  the  engineer  is  final  as 
to  any  dispute  and  any  right  to  sue  at  law  or  otherwise  is  waived,  the  latter  pro- 
vision does  not  apply  on  rescission  of  the  contract  where  the  contractor  sues  to  re- 
cover for  loss  thereon  but  makes  no  claim  for  work  done.^^  Under  a  contract  to 
furnish  iron  by  a  certain  time,  after  default  by  the  materialman,  the  contractors 
were  justified  in  going  into  the  market  and  paying  for  materials  at  a  higher  price 
than  that  provided  by  the  contract,  and  were  also  justified  in  securing  "substan- 
tial!/' the  same  kind  of  material  as  was  required  by  the  contract.^® 

(§9)  7.  Actions  for  rescission.*^ — Even  though  a  party  could  combine  with  a 
suit  on  a  contract  an  action  for  rescission  of  the  same  contract  for  fraud,  the  latter  ac- 
tion should  be  nonsuited  where  it  appears  that  he  had  received  from  the  other  partv 
tums  he  had  himself  paid  on  the  contract  and  that  no  restoration  or  offer  to  restore 
had  been  made.*^  In  rescission  for  misrepresentation,  the  misrepresentation  must  be 
set  out  in  the  pleading.*^  On  termination  of  a  contract  for  construction  of  a  build- 
ing, the  owner  must  show  failure  of  the  contractor  to  perform  his  contract  as  a  con- 
dition precedent  to  a  rescission  thereof.^^  The  party  seeking  rescission  must  show 
the  making  of  fraudulent  representations  and  their  falsity,  but  when  he  has  done 
so  the  burden  shifts  and  the  other  party  must  prove  that  such  representations  did 
not  influence  the  contract.**  Evidence  of  the  circumstances  and  facts  under  which 
a  contract  was  executed  may  be  shown  in  action  for  rescission  as  bearing  on  the 
question  of  good  faith.**     Wliere  the  consideration  of  a  contract  fails  without  the 


30.  Central  Coal  &  Coke  Co.  v.  George  S. 
Good   &   Co.    (C.  C.  A.)   120  Fed.   793. 

31.  Retaking  possession  of  land  and  col- 
lecting and  retaining  rents  therefrom  with- 
out attempting  to  enforce  payment  of  re- 
maining installments  of  purchase  price 
amounts  to  a  rescission  of  its  sale — Evans 
V.   Jacohitz    (Kan.)    72   Pac.   848. 

33.  Barrie   v.    King.    105    111.    App.    426. 

S3.  Luce  V.  New  Orange  Industrial  Ass'n. 
68   N.   J.    Law.    31. 

34.  Sutton   V.  Grlebel,   118   Iowa,   78. 

315.  Luce  V.  New  Orange  Industrial  Ass'n, 
68   N.    J.    Law,    31. 

36.     Hayes  v.   Stortz   (Mich.)    90  N.  W.   678. 


37.  C^eo.  M.  Newhall  Engineering  Co.  v 
Daly   (Wis.)    93  N.  TV.  12. 

3.S,  Dobbling  v.  York  Springs  Ry.  Co.,  203 
Pa.    628. 

39.  Christopher,  etc..  Foundry  Co.  v.  Yea- 
ger.  202  111.  486. 

40.  Consult  the  title  Cancellation  of  In- 
struments,   ante,    p.    413. 

41.  Cleckley  v.  Mutual  Fidelity  Co.  (Ga.) 
43    S.    E.    725. 

43.      Scott  V.  Boyd   (Va.)    42  S.  E.   918. 

43.  White  V.  Mitchell.   30  Ind.  App.   342. 

44.  Garrison  v.  Technic  Electrical  Works 
63   N.   J.    Eq.    806. 

45.  Jewell   V.    Mclntyre.   172   N.    Y.    638. 


§  lOA 


ABANDONMEINT.      ACTIONS. 


685 


avail  of  other  party  as  in  the  sale  of  a  patent,  which  under  the  terms  was  to  be  suc- 
cessful but  which  proved  to  be  unsuccessful,  both  parties  will  be  restored  to  their 
original  situations  in  equity.*" 

(§9)  J.  Abandonment  of  contract. — Formal  release  or  cancellation  is  not 
necessarj'  to  abandonment  of  a  written  contract  but  it  may  be  shown  by  the  conduct  of 
the  parties  and  the  circumstances;*^  the  act  of  one  party  in  rendering  performance 
impossible  is  an  abandonment.**  After  abandonment  there  can  be  no  enforcement 
according  to  the  terms  of  the  contract,*®  though  recovery  may  be  had  for  partial 
performance  on  a  quantum  meruit,  where  it  appears  that  the  abandonment  was  by 
mutual  consent  without  any  provision  as  to  compensation."**  Where  a  building  con- 
tract is  abandoned  by  the  contractor  and  completed  by  another  imder  conditions 
therein,  the  work  of  completion  is  done  under  the  contract  and  on  account  of  the 
contractor,  and  he  is  entitled  to  any  balance  remaining  after  the  cost  of  comple- 
tion."*^ On  failure  of  contractors  to  substantially  complete  a  building  and  their 
abandonment  on  refusal  of  the  owner  to  pay  an  instalment  of  the  price,  he  may 
complete  the  building  and  hold  them  responsible  for  the  expense.'^  Where  in  a 
contract  for  the  construction  of  sewers,  errors  in  grade  and  cavings  of  banks  were 
anticipated  by  agreement  that  on  occurrence  of  such  events  the  parties  shall  allow 
their  obligations  to  be  adjusted  by  the  chief  engineer  of  the  cit}',  and  the  expendi- 
tures and  losses  shall  be  charged  as  provided  by  the  contract  remaining  in  force,  the 
contractor  cannot  abandon  the  work  and  refuse  to  accept  the  adjustment  fixed  by  the 
contract."^  On  abandonment  of  a  contract  by  a  subcontractor,  he  should  not  be 
allowed,  though  entitled  to  remove  his  plant,  to  remove  any  part  which  is  necessary 
to  preserve  the  work  until  a  reasonable  time  during  which  another  plant  may  be 
substituted.^* 

§  10.  Remedies  for  breach  of  contract. ^^  A.  Rights  of  action  in  general. — 
Illegality  of  a  contract  will  not  prevent  relief  if  the  rights  of  plaintiff  do  not  re- 
quire aid  of  the  illegal  transaction.^®  If  a  contract  has  been  modified  bv  subse- 
quent agreement,  suit  must  be  brought  on  it  as  modified. °''  That  a  party  in  default 
may  have  incurred  a  criminal  liability  by  nonperformance  of  his  contract  will  not 
prevent  its  enforcement  or  action  thereon.^^  After  a  party  to  an  unexecuted  con- 
tract has  stopped  performance,  an  action  will  lie  only  for  the  breach  and  not  for 
the  price  of  the  goods  purchased.^®     Harsh  provisions  in  a  contract,  unenforceable 


46.  Hoffman  v.  Duryea,  38  Misc.  (N.  Y.) 
553. 

47.  Creamery  Packag-e  Mfg^.  Co.  v.  Sharp- 
ies Co.  (Mo.  App.)  71  S.  W.  1068.  A  letter 
between  the  parties  to  a  contract  stating 
that  the  writer  declined  to  have  anything 
further  to  do  with  it  amounted  to  a  re- 
nunciation giving  the  other  party  the  right 
to  the  recovery  of  any  damages  sustained — 
Wallingford  v.  Aitkins,  24  Ky.  L.  R.  1995,  72 
S.  W.  794.  Where  one  party  to  a  contract 
notifies  the  other  after  partial  performance 
that  he  will  not  proceed,  it  amounts  to  a 
breach  and  the  other  is  released  from  further 
performance — Miller  v.  Sigler  (Mo.  App.)  69 
S.  W.  479. 

48.  Where  parties  agree  to  act  together 
In  consolidation  of  a  corporation,  but  before 
the  contract  was  performed  one  of  the  par- 
ties affected  another  consolidation  which 
rendered  it  impossible  for  him  to  perform, 
such  act  constituted  an  abandonment  of  the 
agreement  and  authorized  any  arrangement 
by  the  other  party  for  consolidation  without 
responsibility    to    the    first   for   a   division    of 


accruing    profits — Parks    v.    Gates,    84    App. 
Div.    (N.   Y.)    534. 

49.  Tribune  Ass'n  v.  Eisner  &  M.  Co.,  70 
App.  Div.  (N.  Y.)  172.  Rebates  on  the  price 
according  to  terms  of  the  contract  cannot  be 
enforced — Id. 

50.  Tribune  Ass'n  v.  Eisner  &  M.  Co.,  70 
App.  Div.    (N.   Y.)    172. 

"White   V.   Livingston,    174   N.   Y.    538. 
Hansen  v.   Hackman,   37  Misc.    (N.  Y.) 


51. 
52. 

290. 
53. 
.54. 


Brown  v.   Baton  Rouge,  109  La.   967. 
Building-    city    underground    railway — 
McCabe  v.   Hunt,   40   Misc.    (N.    Y.)    466. 

S-l.     Cancellation  in  equity  of  written  con- 
tracts.    See  ante,   p.    413. 

56.  Robson    v.    Hamilton,    41    Or.    239,    69 
Pac.    651. 

57.  Iroquois  Furnace  Co.  v.  Bignall  Hard- 
ware Co..   201   111.   297. 

58.  Baum    v.    Union    Surety    &    Guaranty 
Co..   19  Pa.   Super.   Ct.   23. 

59.  Contract    of    sale    of    goods — Herring- 
Hall-Marvin   Co.   v.   Smith    (Or.)    72   Pac.   704. 


686 


CONTRACTS. 


§  lOB 


in  equity,  will  not  prevent  enforcement  of  valid  provisions  therein,'"  Where  there 
was  an  implied  contract  to  pay  for  litigation  necessary  to  performance  of  a  con- 
tract, an  accounting  could  be  had  to  determine  such  expenses  though  charges  could 
not  be  made  for  expenses  within  control  of  the  party,  or  for  his  services,  or  for 
losses  resulting  from  the  litigation.®^  To  be  effective,  a  waiver  of  the  right  to  sue 
on  the  contract  must  be  under  a  valid  condition  and  must  concern  the  identical 
contract.®-  An  unaccepted  offer  of  pa}Tiient  will  not  waive  an  action  for  breach,®' 
nor  will  an  act  calculated  merely  to  protect  plaintiff's  rights  made  necessary  by  de- 
fendant's default,®*  nor  mere  assertion  of  a  right  under  the  contract.®'' 

(§  10)  B.  Form  of  action. — In  asuit  brought  on  a  contract  forpurchaseof  cer- 
tain goods  and  on  notes  given  for  the  price,  plaintiff  cannot  be  required  to  elect 
whether  he  will  sue  on  the  contract  or  the  notes.®®  If  the  default  of  defendant  is  as 
much  a  wrong  as  a  breach  of  contract,  plaintiff  may  sue  for  either.®^  Assumpsit  will 
lie  for  failure  to  fulfill  an  offer  which  was  to  remain  open  until  a  particular  date  and 
to  be  accepted  in  a  certain  manner,  but  which  plaintiff  was  prevented  from  accept- 
ing by  the  fault  of  defendant,®®  or  on  a  special  contract  terminated  by  its  terms  by 
agreement  of  the  parties  or  by  improper  conduct  of  defendants,®^  or  to  enforce  a 
simple  contract  debt  growing  out  of  a  conveyance.'^**  If  a  contract  has  been  fully 
executed  except  for  payment  of  an  agreed  price,  plaintiff  may  sue  on  the  common 
counts,^^  a  special  declaration  being  unnecessary,'^-  but  after  declaration  on  a  special 
contract  and  proof  thereof,  plaintiff  cannot  abandon  his  position  and  recover  on  the 
common  counts.''^  Where  the  owner,  at  his  own  cost,  completes  construction  under 
a  building  contract,  which  had  been  renounced  by  the  contractor,  he  cannot  recover 
for  such  cost  on  the  common  counts  but  must  sue  for  breach  of  contract.'^*  In  an 
action  on  a  special  building  contract  to  which  common  counts  were  added,  if  there 
was  an  express  contract  for  construction,  recovery  could  not  be  had  under  the  com- 
mon counts  for  money  due  on  account  and  for  work,  unless  there  was  compliance 
with  the  contract  or  an  acceptance  of  the  construction  as  done.'^^     Eecovery  cannot 


60.  Michigan  Cent.  R.  Co.  v.  Chicago,  K. 
&  S.  Ry.  Co.   (Mich.)   93  N.  W.  882. 

61.  Murphy  v.  Northern  S.  S.  Co.  (Mich.) 
91   N.   W.   142. 

62.  A  condition  in  a  contract  that  courts 
of  another  country  shall  have  exclusive  ju- 
risdiction of  actions  on  a  contract  made 
therein  except  certain  suits,  is  not  Tvaived 
by  suit  against  parties,  not  identical,  on  a 
later  contract,  nor  by  a  suit  to  preserve  the 
rights  of  one  of  the  parties  provided  such 
condition  should  be  held  to  be  Invalid — Mit- 
tenthal   v.   Mascagni,    183   Mass.    19. 

63.  An  offer  by  the  owner  of  a  building 
to  pay  the  contractor  and  his  surety  a  small 
amount  due  on  the  contract  for  erection  be- 
fore bringing  action  for  breach  of  contract, 
will  not  bar  recovery  where  they  refused 
to  accept — Ramlose  v.  Dollman  (Mo.  App.) 
73  S.  W.   917. 

64.  Foreclosure  by  a  purchaser  of  a  trust 
deed  and  notes  on  refusal  of  the  seller  to 
repurchase  under  the  contract  of  sale,  and 
failure  to  realize  the  full  amount,  will  not 
estop  him  from  suing  for  breach  of  the 
contract — Loeb  v.   Stern.  198  111.   371. 

63.  Holding  out  by  the  owner  of  a  build- 
ing of  an  amount  agreed  upon  between  him 
and  the  contractor  as  demurrage  stipulated 
for  delay  in  completion  by  a  certain  time, 
will  not  prevent  an  action  by  him  against 
the  contractor  for  breach  of  the  contract — 


Dollman    (Mo.    App.)    73    S.    W. 
Parlin    &    Orendorf   Co. 


Ramlose 
917. 

66.  Strickland    -v 
(Ga.)    44   S.   E.   997. 

67.  Where  a  building  near  an  excavation 
by  a  railroad  company  suffered  damage 
through  faulty  design  of  a  wall  built  by  the 
company  under  an  agreement  to  make  the 
building  safe,  the  owner  could  sue  for  breach 
of  contract  or  in  tort — Paterson  Extension 
R.  Co.  v.  Church  of  Holy  Communion  (N.  J. 
Sup.)  53  Atl.  449;  Church  of  Holy  Communion 
V.  Paterson  Extension  R.  Co.  (N.  J.  Sup.) 
53  Atl.  1079. 

68.  Acceptance  was  to  be  signified  by  pay- 
ment of  a  certain  amount  of  money — Guil- 
ford  V.   Mason,   24   R.   I.   386. 

69.  Zapel   v.    Ennis,    104    111.   App.    175. 

70.  Where  a  debtor  conveys  his  land  to 
his  creditor  under  an  arrangement  that  it 
should  discharge  his  debt  and  that  both 
should  use  their  efforts  to  sell  the  property, 
any  surplus  above  the  debt  to  be  paid  to 
the  debtor,  he  was  entitled  to  recover  such 
surplus — Moran  v.   Munhall,    204  Pa.   242. 

71.  McDermott  v.  St.  Wilhelmina  Benev. 
Aid  Soc.   (R.  I.)    54  Atl.  58. 

72.  Union  El.  R.  Co.  v.  Nixon,  199  111.   235. 

73.  Burton  v.  Rosemary  Mfg.  Co.  (N.  C.) 
43  S.  E.   480. 

74.  Wygent  v.  Marrs  (Mich.)  90  N.  W. 
423. 

75.  Aarnes  v.  Windham   (Ala.)   34  So.  816. 


J5  10  D 


ACTIONS  FOR  BREACH. 


687 


be  had  on  a  quantum  meruit  for  goods  delivered  under  a  contract  invalid  for  non- 
compliance with  the  statute  as  to  execution/®  nor  for  breach  of  a  contract  to  leave 
a  legacy  to  plaintiff  in  return  for  services.''^  A  cause  of  action  as  on  a  quantum 
meruit  may  be  joined  with  the  declaration  on  a  special  contract.'^*  Equity  will  not 
construe  a  written  contract  and  give  damages  for  its  breach,  if  a  reformation  is  not 
asked  and  neither  fraud  nor  mistake  is  alleged/*  If  the  party  in  default  has  re- 
ceived no  benefits,  he  cannot  be  called  to  account  in  equity  but  the  other  must  sue 
for  the  breach.^" 

(§  10)  C.  Accrual  of  rigid  of  action. — The  action  for  breach  accrues  to  one 
party  on  refusal  of  the  other  to  perform  or  to  be  bound,^^  and  the  right  of  action  thus 
accruing  to  one  party  on  the  other's  breach  is  not  affected  by  a  subsequent  offer  to  per- 
form.^^  Instalments  due  may  be  sued  for  though  performance  is  not  complete.^^ 
An  action  begun  five  years  after  the  beginning  of  a  contract  which  was  to  continue 
four  years  was  not  premature,  though  the  cost  of  work  done  or  the  amount  of  rent 
chargeable  as  provided  by  its  terms  had  not  been  determined  by  the  parties.**  Dam- 
ages may  be  recovered  presently  for  breach  of  a  contract  to  give  a  note  payable  in 
the  future.^° 

(§10)  D.  Conditions  precedent  to  bringing  action.^^ — One  attempting  to  en- 
force performance  of  a  contract  must  show  performance  on  his  own  part,^^  or  readi- 
ness and  willingness  to  perform  if  permitted  so  to  do,*^  and  if  he  has  himself  broken 
the  contract  he  cannot  recover  consideration  paid,*®  regardless  of  the  validity  or  inva- 


76.  Contract  with  a  township — Peck-Wil- 
liamson Keating'  &  Ventilating'  Co.  v.  Steen 
School  Tp.    (Ind.)    66  N.   E.   909. 

77.  Banks  v.   Howard,   117  Ga.   94. 

78.  Burton  v.  Rosemary  Mfg.  Co.  (N.  C.) 
43    S.   E.    480. 

79.  Clarke  v.  Shirk  (C.  C.  A.)  121  Fed. 
340;  Bank  v.  Belington  Coal  &  Coke  Co.,  51 
W.  Va.  60. 

80.  Where  parties  entered  into  a  contract 
to  form  a  consolidated  corporation,  provid- 
ing that  profits  arising  therefrom  should  be 
divided  among  promoters,  but  the  contract 
was  abandoned  and  the  parties  agreed  to  act 
together  in  further  efforts  for  the  consolida- 
tion, but  before  one  of  them  had  prosecuted 
his  efforts  to  a  successful  issue,  the  other 
formed  a  different  consolidation,  from  which 
it  did  not  appear  that  any  profits  were  de- 
rived except  such  as  were  derived  by  party 
as  underwriter  of  bonds  for  the  consolidated 
corporation,  the  first  party  was  not  entitled 
to  recover  in  equity  for  an  accounting  of 
profits  but  only  for  a  breach  of  contract 
against  the  other  if  at  all — Parks  v.  Gates, 
84   App.   Div.    (N.   Y.)    534. 

81.  Shields  v.  Carson,  102  111.  App.  38. 
Though  time  for  performance  of  some  condi- 
tions has  not  yet  arrived — Northrop  v.  Mer- 
cantile Trust  &  Deposit  Co.,  119  Fed.  969. 
The  action  for  breach  of  a  contract  to  leave 
plaintiff  a  legacy  in  return  for  services  per- 
formed accrues  at  death  of  defendant — Banks 
V.  Howard.  117  Ga.  94. 

S2.     Emack  v.   Hughes,   74  Vt.   382. 
R3.     Cramer    v.    Redman     (Wyo.)     68    Pac. 
1003. 

84.  Rumford  Palls  Boom  Co.  v.  Rumford 
Falls  Paper  Co..   96  Me.   96. 

85.  Deering   v.   Johnson,    86   Minn.    172. 

80.  An  agreement  by  the  owner  to  ac- 
cept a  certain  sum  for  failure  of  the  con- 
tractor to  complete  minor  details,  and  as  to 
the  balance  due,  will  complete  the  contract 
so  as  to  entitle  the  materialmen  to  recover 


the  amount  due  from  the  contract — Roussel 
V.  Mathews,   62  App.  Div.    (N.  T.)   1. 

87.  Stern  v.  McKee,  70  App.  Div.  (N.  Y.) 
142.  Execution  and  tender  of  deed  must  be 
shown  in  an  action  on  a  contract  for  sale  of 
land — Evans  v.  Jacobitz  (Kan.)  72  Pac.  848. 
One  who  is  guilty  of  a  breach  of  a  contract 
cannot  sue  the  other  for  subsequent  failure 
or  refusal  to  perform — Loudenback  Fertilizer 
Co.  V.  Tennessee  Phosphate  Co.  (C.  C.  A.) 
121  Fed.  298.  Substantial  performance  will 
entitle  plaintiff  to  recovery — City  of  Eliza- 
beth V.  Fitzgerald  (C.  C.  A.)  114  Fed.  547; 
as  to  what  constitutes  such  performance — 
Harris  v.  Sharpless,  202  Pa.  243,  58  L.  R.  A. 
214.  Because  of  the  disproportionate  amount 
of  work  left  undone  and  greater  expenses 
incurred  by  plaintiffs  in  completing  the  con- 
tract, there  w^as  a  substantial  performance 
before  bringing  action — Drew  v.  Goodhue, 
74  Vt.  436.  Impossibility  of  performance  of 
certain  conditions  by  plaintiff  will  obviate 
necessity  of  performance  to  recover  on  other 
provisions — Buchanan  v.  Layne,  95  Mo.  App. 
148;  as  will  also  abandonment  of  the  con- 
tract after  part  performance — Tribune  Ass'n 
V.  Eisner  &  Mendelson  Co.,  70  App.  Div.  (N. 
Y.)  172.  Failure  to  perform  in  a  small  par- 
ticular will  not  render  the  action  premature 
where,  after  the  action  was  begun,  plaintiff 
completed  performance  with  due  care — Drew 
v.  Goodhue,  74  Vt.  436.  Failure  of  contract 
to  make  alterations  ordered  at  time  of  order 
will  not  prevent  his  recovery — Essex  v.  Mur- 
ray (Tex.  Civ.  App.)  68  S.  W.  736.  Failure 
of  a  contractor  to  complete  a  building  with- 
in a  certain  period  will  not  give  the  other 
the  right  to  complain  of  the  breach,  where 
he  failed  to  make  payments  as  prescribed — 
Harris'  Assignee  v.  Gardiner,  24  Ky.  L.  R. 
103,  68  S.  W.  8;  Brooks  v.  Greer's  Adm'r,  Id. 

88.  Stern  v.  McKee,  70  App.  Div.  (N.  Y.) 
142;  Leek  Milling  Co.  v.  Langford  (Miss.)  33 
So.   492. 

89.  Consideration    paid    on    a    contract    of 


688 


CONTRACTS. 


§   lOD 


lidity  of  the  contract ;'"  but  subseqiTent  promises  not  a  part  of  the  contract  need 
not  be  fulfilled."  However,  acceptance  by  defendant  of  part  performance  may 
waive  full  performance  as  a  condition  precedent  to  recovery."  Plaintiff  need  not 
give  notice  of  performance  where  defendant  has  equally  as  good  an  opportunity  to 
know  of  the  completion  of  the  contract.'^  A  tender  of  performance  by  plaintiff  is 
not  necessary  if  performance  is  rendered  impossible  by  default  of  the  other  party,^* 
and  a  notice  by  defendant  that  he  has  put  it  beyond  plaintiff's  power  to  perform 
is  a  waiver  of  such  tender  ;^=  the  offer  to  perform  is  sufficient  as  to  an  assigned 
contract  if  made  to  the  original  party  on  breaich  by  the  assignee.®*  Generally,  a 
demand  of  performance  is  necessary  before  bringing  an  action  for  breach  of  a 
contract,'^  but  no  demand  is  necessary  if  the  other  party  has  renounced  the  con- 
tract,*' or  it  is  apparent  from  the  conduct  of  the  other  party  that  it  will  be  un- 
availing,®* or  the  other  party  has  voluntarily  put  it  out  of  his  power  to  perform.^ 
Where  a  building  contract  provides  that  final  pa}Tnent  should  be  due  when  the 
work  was  completed  and  accepted  by  the  architect,  his  certificate  was  a  condition 
precedent  to  such  payment.^  Though  the  architect's  certificate  was  necessary  to 
payments  on  a  building  contract,  it  was  not  necessary  to  an  action  on  such  contract, 
where  the  owner  had  declared  it  forfeited  and  taken  possession  to  complete  the 
building  himself,'  if  the  contractors  have  substantially  performed  and  no  reason 


privilege  to  conduct  an  exhibition  on  the 
state  fair  grounds  where  the  contract  is 
canceled  by  the  fair  association  for  violation 
by  the  licensee — Mackay  v.  Minnesota  State 
Agricultural  Soc.  (Minn.)  92  N.  W.  539.  As 
to  a  contract  without  time,  substantial  per- 
formance of  the  entire  contract  by  plaintiff 
is  necessary  to  liability  of  the  other  party 
though  the  liability  may  be  separate  as  to 
different  items — Riddell  v.  Peck-Williamson 
Heating  &  Ventilating  Co..  27  Mont.  44, 
69  Pac.  241. 

90.  Contract  for  building  permit  for  street 
railroad  by  which  company  forfeited  de- 
posit for  failure  to  build  a  certain  distance 
in  a  given  time — West  Springfield  &  A.  St. 
Ry.  Co.  V.   Bodurtha.   181  Mass.   583. 

91.  Failure  to  give  a  bond  for  faithful 
performance  of  a  contract  which  plaintiff 
promised  after  the  contract  was  fully  made 
win  not  prevent  recovery  where  the  referee 
concluded  that  the  promise  was  not  a  part 
of  the  contract — Disken  v.  Herter,  73  App. 
Div.    (N.   Y.)    453. 

92.  Where  one  of  the  parties  to  a  con- 
tract Insisted  that  the  other  had  not  com- 
plied therewith,  whereupon  the  latter  agreed 
to  complete  the  contract  according  to  its  con- 
ditions, and  on  the  strength  of  this  promise 
was  paid  the  greater  part  of  the  price,  and 
the  work  was  accepted,  it  cannot  be  claimed 
that  complete  performance  is  a  condition 
precedent  to  the  recovery  of  the  balance  of 
the  price,  but  the  amount  of  the  claim  for 
work  may  be  reduced  by  the  amount  of 
damages  the  other  party  has  sustained  be- 
cause of  lack  of  complete  performance — 
Gray  v.  Village  of  New  Paynesville  (Minn.) 
94  N.  W.  721. 

93.  Drew  v.   Goodhue,   74  Vt.   436. 

94.  Where  the  co-owners  of  a  plantation 
are  out  of  possession  so  that  It  Is  impossible 
for  them  to  know  what  balance  is  due.  if 
any,  on  an  account  by  another  owner  under 
a  contract  for  exclusive  management  and 
control,    they   are    relieved   from   an   antece- 


dent tender  In  bringing  an  action  for  breach 
of  the  contract  wherein  they  so  alleged — 
Derouen   v.    Romero    (I-.a.)    34   So.    415. 

95.  Notice  by  mortgagee  to  mortgagor 
that  he  has  sold  the  mortgage  will  excuse 
tender  of  performance  of  contract  to  pur- 
chase the  mortgage  at  a  discount  before 
maturity — Thurber  v.  Smith,  25  R.  I.  60. 

96.  Bowen  v.  Young,  37  Misc.   (N.  Y.)   547. 

97.  SufRciency  of  demand  and  failure  to 
comply  constituting  a  breach  of  contract 
giving  the  demanding  party  immediate  right 
of  action — In  re  Swift,  114  Fed.  947;  Ex 
parte  Harrigan,  Id.  Sufficiency  of  descrip- 
tion of  town  lot  in  demand  made  for  con- 
veyance of  such  lot  under  contract  calling 
for  such  conveyance  within  a  certain  period 
of  time  in  consideration  of  services  rendered 
the  owner — Ehrich  v.  Durkee  (Colo.  App.)  72 
Pac.  814.  In  action  to  recover  the  value  of 
property  which  under  the  contract  defendant 
was  to  furnish  plaintiff — Ingram  v.  Bussey, 
133  Ala.  539.  Sufficiency  of  legal  demand  and 
refusal  to  pay  to  prevent  objection  that 
plaintiff  was  not  entitled  to  payment  when 
demand  was  made,  in  action  for  recovery  for 
services  performed  before  rescission  by  de- 
fendant— South  End  Imp.  Co.  v.  Harden  (N. 
J.  Eq.)    52  Atl.   1127. 

OS.  Contract  to  convey  lands  in  consider- 
ation of  support  of  grantor  for  life,  re- 
nounced by  prospective  grantee — Van  Horn 
V.  Mercer.  29  Ind.  App.  277.  Where  sellers 
of  certain  securities  agree  to  repurchase  on 
certain  notice,  and  such  notice  was  given, 
further  demand  after  their  refusal  is  un- 
necessary— Loeb    V.    Stern,    198    111.    371. 

99.  And  this,  though  the  terms  of  the 
contract  expressly  require  a  demand — Loeb 
V.    Stern,    198    111.    371. 

1.  Murphy  v.  Dernberg,  84  App.  Dlv.  (N. 
Y.)    101. 

2.  McGlauflln  v.  Wormser  (Mont.)  72  Pac. 
428. 

3.  Ocorr  &  Rugg  Co.  v.  City  ot  Little 
Falls.   77   App.  Div.    (N.   Y.)    692. 


§  lOG 


DEFENSES.    VENUE.    PARTIES. 


689 


for  its  refusal  appears,*  nor  to  an  action  of  assumpsit  to  recover  for  work  done.* 
There  must  be  an  award  or  settlement  of  disputes  before  action  on  a  contract 
providing  for  an  arbiter  whose  decision  shall  be  final,'  but  if  plaintiff's  demands 
are  not  questioned  arbitration  is  unnecessary.''  Defendant  cannot  urge  a  provision 
for  arbitration  as  to  value  of  work  done  where  he  neither  took  steps  to  select  arbi- 
trators and  neither  demanded  nor  ofEered  arbitration.* 

(§  10)  E.  Defenses  and  recoupment. — That  a  debt  sued  for  has  been  attached 
in  defendant's  hands  in  a  foreign  jurisdiction  by  plaintiff's  creditors  is  no  defense  to 
Hn  action  on  the  contract.®  In  an  action  on  a  contract  for  the  furnishing  of  evi- 
dence  to  establish  a  right  to  a  mining  claim,  an  objection  that  plaintiff  did  not 
own  the  evidence  which  he  agreed  to  furnish  but  obtained  it  under  a  contract  with 
a  third  person  is  no  defense;  nor  a  failure  by  plaintiff  to  advance  money  necessary 
to  perform  the  contract,  where  the  defendants  did  not  terminate  the  contract  for 
that  reason  but  continued  the  litigation  and  accepted  the  benefits.*"  In  an  action 
for  a  balance  of  compensation  on  a  building  contract,  if  there  has  been  an  accept- 
ance there  cannot  be  a  recoupment,  but  only  if  the  recovery  is  on  a  quantum  meruit 
alone,  especially  where  it  appears  that  the  work  was  performed  in  accordance  with 
■\  guaranty  which  was  made  a  part  of  the  contract.** 

(§  10)  F.  Place  of  trial. — The  place  where  a  contract  is  dated  will  not  neces- 
sarily control  the  place  of  trial  of  an  action  thereon.*^  The  right  to  sue  on  a  written 
contract  in  a  certain  county  is  not  dependent  upon  any  express  provision  in  the 
contract  that  it  is  to  be  performed  there,  but  it  is  sufficient  if  the  contract  must 
necessarily  be  performed  where  suit  is  brought.*^ 

(§  10)  G.  Parties. — In  an  action  for  breach  of  a  contract  to  deliver  goods  to 
two  persons,  both  are  necessary  parties.**  The  surviving  co-party  on  one  side  of  a 
contract  may  sue  thereon  in  his  o^\ti  name  as  though  a  surviving  partner.*^  One 
who  does  not  sustain  such  relation  to  a  contract  that  he  could  sue  upon  it  for 
breach  thereof  cannot  sue  in  tort  for  such  breach.*®  Under  the  common  law,  where 
it  appears  from  the  declaration  in  an  action  ex  contractu  that  there  are  too  many 
defendants,  any  of  them  may  demur  for  misjoinder.*'^  Where  a  building  contract 
required  the  contractor  to  give  a  bond  for  faithful  performance,  and  for  materials 
and  labor,  his  laborers  and  materialmen  were  beneficiaries  and  proper  parties  to 
sue  for  its  enforcement.**  In  a  several  action  brought  on  a  joint  contract,  non- 
joinder of  parties  plaintiff  need  not  be  raised  by  plea  in  abatement  nor  by  special 
plea  of  the  joint  contract,  since  the  defense  is  not  affirmative  and  plaintiff  must 
establish  his  cause  of  action.*®  Where  one  partner  dies  pending  an  action  against 
the  firm  on  a  contract,  as  his  administrators  appear  to  defend, .  plaintiff  may  be 
permitted  to  amend  by  discontinuance  as  to  the  living  partner  and  proceeding 
against  the  administrators.'"* 


4.  Happel  V.  Marasco,  37  Misc.  (N.  T.) 
314. 

5.  Board  of  Com'rs  of  Fulton  County  v. 
Gibson.    158   Ind.    471. 

6.  Citizens'  Trust  &  Surety  Co.  v.  Howell, 
19  Pa.   Super.  Ct.   255. 

7.  Charges  for  extras  under  a  building 
contract  providing  for  arbitration — Essex  v. 
Murray  (Tex.  Civ.  App.)  68  S.  W.  736. 

8.  Van  Note  v.  Cook,  55  App.  Div.  (N.  T.) 
55. 

9.  Bailey  v.  Pennsylvania  R.  Co.  (N.  J. 
Sup.)  54  Atl.   248. 

10.  Wood  V.  Casserlelgh,  30  Colo.  287,  71 
Pac.  360. 

11.  Mosaic  Tile  Co.  v.  Chiera  (Mich.)  96 
N.  W.  537. 

Cur.  Law — 44. 


12.  Contract  of  guaranty;  Code,  §  27 — 
Smith  V.  Post  Printing  &  Publishing  Co. 
(Colo.  App.)    68  Pac.  119. 

13.  Rev.  Sts.  1895.  art.  1194,  subd.  5 — Dar- 
ragh  V.  O'Connor  (Tex.  Civ.  App.)  69  S.  "W. 
644. 

14. 
15. 
16. 
413. 

17.  Cunningham  v.  Town  of  Orange,  74 
Vt.  115. 

18.  Town  of  Gastonla  v.  McBntee-Peter- 
son  Engineering  Co.,  131  N.  C.  363. 

19.  Blackburn  v.  Blackburn  (Mich.)  94  N. 
W.  24. 

20.  Under  Public  Sts.  c.  136,  §  8,  providing 


Lemon  v.  Wheeler,  96  Mo.  App.  651. 
Northness  v.  Hillestad,  87  Minn.  304. 
Styles  v.  F.  R.  Long  Co.,  67  N.  J.  Law, 


690 


CONTRACTS. 


§   10 


(§  10)  77.  Pleading  and  proof.  The  complaint  or  petition^^  must  allege  a 
performance  by  plaintiff  as  far  as  possible  and  that  he  was  ready  and  willing  to  per- 
form,^^  unless  a  sufficient  excuse  for  nonperformance  is  given  ;^^  as,  where  there  are 
no  precedent  conditions  to  be  performed  by  plaintiff  to  entitle  him  to  demand  per- 
formance, or  the  right  of  defendant  to  demand  performance  by  plaintiff  must  be  pre- 
ceded by  performance,  wholly  or  in  part,  by  defendant;^*  a  breach  in  that  there  was 
dcfaiilt  by  defendant;-^  that  the  time  for  performance  is  due;-**  the  obligations  of  de- 
fendant ;"  the  things  he  has  failed  to  do  ;-*  a  waiver  of  conditions  by  defendant  ;^'  a 
demand  for  performance  by  defendant  or  facts  showing  a  demand  to  have  been 
useless  ;^°  the  value  of  the  property  concerned  so  as  to  furnish  a  basis  for  deter- 


that  when  one  of  several  persons  Indebted 
on  a  joint  contract  dies,  his  estate  shall  be 
liable  as  though  the  contract  were  joint  and 
several — Philadelphia  &  R.  Coal  &  Iron  Co.  v. 
Butler.  181  Mass.  468. 

21.  Sufficiency  of  petition  for  breach  of 
building  contract  as  showing  that  a  discon- 
tinuance of  the  work  by  plaintiff  contractors 
did  not  amount  to  a  breach  on  their  part — 
McClellan  v.  McLemore  (Tex.  Civ.  App.)  70  S. 
W.  224.  Of  petition  in  action  for  recovery 
of  loan  to  Insolvent  on  strength  of  promise 
by  a  county  judge  to  retain  money  to  repay 
it  from  a  debt  owing  from  the  county  to  the 
insolvent— Huffman  v.  Ahl,  24  Ky.  L..  R.  1877. 
72  S.  W.  343.  Of  declaration  in  connection 
with  bill  of  particulars  in  action  for  loreach 
of  contract  for  sale  of  lands — Culver  v. 
Smith  (Mich.)  91  N.  W.  60S.  Petition  as 
counting  on  contract  or  in  tort — Lambert  v. 
Jones,  91  Mo.  App.  288;  Wallrath  v.  Bohnen- 
kamp,  97  Mo.  App.  242.  Sufficiency  of  allega- 
tion of  breach  of  a  contract  for  manufacture 
and  sale  of  goods  to  show  that  any  perform- 
ance was  ever  made  by  the  plaintiff — Howie 
V.  Kasnowitz.  83  App.  Div.  (N.  Y.)  295.  Of 
complaint  in  action  for  breach  of  a  contract  of 
employment  to  purchase  cotton  seed — Stokes- 
Evans  Co.  V.  Clay  County  Cotton  Oil  Co. 
(Miss.)  33  So.  283.  In  action  for  breach  of 
agreement  to  deliver  a  note  on  sale  of  ma- 
chinery— Deering  v.  Johnson,  86  Minn.  172. 
Of  complaint  as  to  validity  of  contract — De 
Boer  V.  Harmsen  (Mich.)  90  N.  W.  1036.  Of 
complaint  in  action  on  a  sale  of  lumber  to 
show  that  it  was  used  in  construction  of 
buildings  on  premises  of  defendant — Hurd  v. 
Wing.  76  App.  Div.  (N.  Y.)  506.  Sufficiency 
of  allegations  as  to  happening  of  emergence- 
necessitating  change  in  construction  con- 
tract anticipated  by  its  terms — National  Con- 
tracting Co.  v.  Commonwealth  (Mass.)  66  N. 
E.  639.  Sufficiency  of  bill  to  show  contractual 
relations  between  parties — Moore  v.  Ham- 
mond (C.  C.  A.)  121  Fed.  759.  Of  petition  to 
show  a  contract  between  the  parties  under 
its  averments — Standard  Oil  Co.  v.  Goodman 
Drug  Co.   (Neb.)   95  N.  W.  667. 

22.  Crafton  v.  Carmichael  (Ind.  App.)  64 
N.  E.  627.  Under  Burns'  Rev.  St.  1901,  §  373 
— Magic  Packing  Co.  v.  Stone-Ordean-Wells 
Co.,  158  Ind.  538.  A  general  allegation  that 
plaintiffs  had  at  all  times  performed  their 
part  of  a  contract  without  enumerating  sev- 
eral acts  done,  is  sufficient — Dennis  v.  Sly- 
fleld  (C.  C.  A.)  117  Fed.  474.  A  petition  to 
recover  damages  for  breach  of  a  construc- 
tion contract  requiring  the  work  to  satisfj- 
the  plans,  specifications  and  orders  of  the 
engineer  in  charge,  must  allege  that  the  pe- 
titioner has  performed  his  part  according  to 


contract — National  Contracting  Co.  v.  Com- 
monwealth (Mass.)  66  N.  E.  639.  An  allega- 
tion that  plaintiff  had  done  all  required  to 
be  done  by  him  under  the  terms  of  his  con- 
tract, was  insufficient  as  to  performance  of 
conditions  precedent  to  a  right  to  terminate 
the  contract — White  v.  Mitchell.  30  Ind.  App. 
342.  A  complaint  on  a  construction  contract, 
alleging  that  the  contractor  has  fulfilled  and 
performed  all  conditions  on  his  part  to  be 
performed,  is  sufficient  without  a  specific 
allegation  of  acceptance  of  the  work  by  the 
engineer  of  the  other  party  as  required  by 
tlie  contract.  Under  Code  Civ.  Proc.  §  533. 
providing  that  it  is  not  necessary  to  state 
facts  constituting  performance  if  a  general 
statement  is  made  that  due  performance  has 
been  done — Vandegrift  v.  Bertron,  83  App. 
Div.  (N.  Y.)  548.  If  the  contract  provides 
expressly  that  estimates  of  the  value  of  thf 
work  done  by  the  engineer  In  charge  should 
be  made  as  basis  of  weekly  payments  when 
the  work  was  progressing  in  accordance 
with  the  contract,  it  is  necessary  to  allege 
that  the  express  agreement  had  been  com- 
plied with — National  Contracting  Co.  v.  Com- 
monwealth  (Mass.)   66  N.  E.  639. 

23.  Buchanan  v.  Layne,  95  Mo.  App.   148. 

24.  Where  a  building  contract  stipulated 
that  payments  should  depend  on  the  progress 
of  the  work  and  on  certificates  of  the  archi- 
tect as  to  its  performance,  the  owner  in  an 
action  for  breach  of  the  contract  need  not 
plead  performance  of  the  conditions  of  the 
contract — Ramlose  v.  Dollman  (Mo.  App.) 
73  S.  W.   917. 

25.  Crafton  v.  Carmichael  (Ind.  App.)  64 
N.  E.   627. 

26.  Borough  of  Bradley  Beach  v.  Atlantic 
Coast  Elec.   R.  Co.    (N.  J.  Sup.)   52  Atl.   231. 

27.  A  complaint  on  a  contract  for  settle- 
ment of  partnership  matters  and  collection 
of  debts  by  one  partner  to  be  shared  by 
both,  merely  setting  out  the  contract  with- 
out showing  any  personal  indebtedness  or 
promise  to  pay  is  insufficient — Brewer  v. 
Swartz,  94  Mo.  App.   392. 

28.  In  order  to  take  advantage  of  a  pas- 
sive violation  of  a  contract  In  Louisiana — 
City  of  Alexandria  v.  Morgan's  Louisiana  & 
T.   R.   &   S.   S.   Co.,    109   La.    50. 

29.  Condition  in  a  building  contract  re- 
quiring a  -written  order  of  an  architect  for 
alterations — Essex  v.  Murray  (Tex.  Civ. 
App.)    68   S.  W.   736. 

30.  Contract  to  deliver  property — Ingram 
V.  Bussey,  133  Ala.  539.  In  the  absence  of 
a  demurrer  and  in  presence  of  an  answer 
showing  that  a  demand  would  have  been  un- 
availing, a  demand  for  payment  under  a 
written  contract  is  sufficiently  shown  by  an 


§  lOH 


PLEADING. 


691 


mining  damages  claimed  ;^^  and,  if  the  contract  is  ambiguous  in  its  application 
to  the  subject-matter,  must  point  out  in  what  particular  the  contract  is  uncertain, 
and  construe  definitely  its  meaning.^-  Where  money  is  to  be  paid,  the  time  for 
payment  must  be  alleged.^^  In  any  court  outside  of  the  justice  court  where 
formal  pleadings  are  not  required,  ratification  of  a  contract  must  be  pleaded  to 
become  the  theory  of  recovery.^*  A  statute  allowing  the  representative  of  a  de- 
ceased party  to  a  joint  contract  to  be  joined  does  not  dispense  with  pleading  insol- 
vency or  inability  of  the  joint  debtors  when  the  representative  is  joined.^®  One 
who  sued  for  breach  of  a  warranty  in  a  contract  could  not  recover  the  amount  of 
notes  executed  by  him  in  part  payment  without  alleging  that  such  notes  had 
been  negotiated  and  that  he  was  liable  thereon.^''  If  the  contract  is  written,  the 
complaint  may  either  set  out  the  language  thereof  or  merely  its  legal  effect.^^ 
In  Louisiana,  the  petition  need  only  set  forth  the  contract  and  the  breach.^^  A 
condition  in  the  contract  merely  fixing  time  for  payment  and  not  determining 
liability  need  not  be  alleged.^'  That  part  of  a  complaint  on  a  written  contract 
which  sets  it  forth  in  haec  verba  cannot  be  disregarded  on  the  theory  that  the 
contract  pleaded  must  be  treated  as  an  exhibit  merely.*"  An  allegation  that  the 
contract  was  entered  into  by  defendant  will  not  cover  negotiations  made  through 
an  agent. *^  On  proof  of  part  performance  of  a  contract  requiring  plaintiff  to  do 
three  distinct  things,  there  must  be  an  allegation  seeking  to  recover  on  a  quantum 
meruit.*^  A  complaint  not  as  complete  as  it  might  have  been  but  which  showed 
the  nature  of  the  demand  and  the  amount  of  damages  claimed  is  sufficient  as 
against  a  motion  to  take  the  case  from  the  jury  because  of  failure  to  state  a 
cause  of  action.'*'  Where  stock  was  purchased  in  consideration  of  an  agree- 
ment by  another  that  he  would  pay  a  dividend  thereon  if  the  corporation  failed 
to  pay,  a  complaint  for  recovery  against  such  promisor  need  not  allege  that  plain- 
tiff was  the  owner  of  the  stock  at  time  of  bringing  action.**  A  complaint  in  an 
action  brought  by  a  certain  company  on  a  contract,  addressed  to  that  company 
under  a  title  including  another  name,  and  embodying  an  instrument  in  which 
the  company  was  referred  to  under  the  latter  name  as  the  contracting  party,  is 
sufficient,  after  answer,  as  to  its  allegations  that  both  names  referred  to  the  same 
organization  as  plaintiff.'*^  A  complaint  in  an  action  by  a  contractor  for  failure 
of  the  owner  to  allow  completion  of  the  work  according  to  the  contract  must  show 
the  character  and  a-  'unt  of  the  work  done  in  preparation  for  the  construction, 
that  a  profit  would  have  resulted  and  the  amount  thereof.*®  A  complaint  on  a 
contract  for  dealing  in  lands,  alleging  that  the  contract  was  partly  oral  and  partly 
written,  and  to  be  executed  in  a  foreign  state,  and  showing  that  it  was  valid  and 


aUegation  In  the  complaint  that  defendant 
was  bound  under  the  contract  to  pay  a  cer- 
tain sum  out  of  certain  moneys  received  by 
him  but  failed  and  refused  so  to  do — Abby 
V.  Dexter   (Colo.  App.)   72  Pac.  892. 

31.     Grafton  v.   Carmichael    (Ind.   App.)    64 
N.  E.  627. 

.32.     Johnson    V.    Kindred    State    Bank    (N. 
D.)   96  N.  W.  588. 

Carmichael    (Ind.   App.) 


64 


Gericke    (Mo.    App.)    74    S. 
§      758 — Potts     V. 


33.  Crafton   v, 
N.  B.  627. 

34.  Snyder    v. 
W.   377. 

35.  Code      Civ.      Proc. 
Bounce,  173  N.  Y.   335. 

36.  Low,    Hudson    &    Gray    Water    Co.    v. 
Hickson    (Tex.   Civ.  App.)    74  S.   W.   781. 

37.  Abby  V.  Dexter    (Colo.   App.)    72   Pac. 
892. 


38.  Miller  v.  Kline,  108  La.  31. 

39.  Agreement  by  state  officer  to  pay  ob- 
ligation as  rapidly  as  he  could  spare  the 
money  from  his  salary — Culver  v.  Caldwell 
(Ala.)  34  So.  13. 

40.  Abby  V.  Dexter  (Colo.  App.)  72  Pac. 
892 

41.  Blotcky  V.  Miller  (Neb.)   91  N.  W.  523. 

42.  Felton  V.  Tally  (Tex.  Civ.  App.)  72  S. 
W.  614. 

43.  Johnson  v.  San  Juan  Fish  &  Packing 
Co.   (Wash.)   71  Pac.  787. 

44.  Having  been  alleged  the  owner  he  la 
presumed  to  continue  the  owner — Crook  v. 
Scott    (N.  Y.)    66  N.  E.   1106. 

45.  Herring-Hall  Marvin  Co.  v.  Smith 
(Or.)   72  Pac.  704. 

46.  Andrae  v.  Watson  (Tex.  Civ.  App.)  73 
S.  W.  991. 


<.'^2 


CONTRACTS. 


8  lOH 


binding  in  that  state,  is  sufficient  as  against  a  demurrer  alleging  that  under  the  law 
of  the  forum  such  a  contract  must  be  in  writing.*^  A  complaint  alleging  that 
defendant  agreed  to  pay  plaintiff  a  certain  amount  for  release  from  a  contract  of 
employment  of  a  woman  whom  defendant  wished  to  marry,  on  the  faith  of  which 
promise  she  was  released,  sufficiently  shows  a  consideration  for  her  obligation  to 
remain  in  the  service  of  plaintiff.** 

Answer  or  plea  and  affidavit  of  defense.*^ — If  defendant  relies  on  the  illegality 
of  the  contract,  he  must  plead  it,^"  unless  it  is  the  duty  of  the  court  to  notice  the 
illegality  of  its  o^^'n  motion.*^  Allegations  of  false  representations  as  inducement 
to  the  contract  must  also  declare  that  defendant  was  deceived  or  that  the  contract 
was  procured  by  fraud.^^  A  partial  defense  pleaded  as  a  complete  defense  is 
demurrable;  but,  though  insufficient  as  a  complete  defense,  it  may  be  good  as  a 
counterclaim.^'  If  a  defense  of  failure  of  warranty  is  sufficient,  the  pleading  of 
bad  intent  is  not  material.*^*  An  allegation  in  an  answer  in  an  action  for  services 
that  plaintiff  was  to  receive  a  certain  amount  under  a  special  contract  which  had 
been  paid  amounts  to  a  plea  of  payment.^**  An  answer  setting  forth  a  contem- 
poraneous agreement  which  varies  the  terms  of  a  written  contract  sued  upon  but 
fails  to  show  that  such  agreement  was  oral  is  not  liable  to  a  general  demurrer.'"' 
An  answer  alleging  that  the  purpose  of  the  sale  of  a  distillery  was  to  endeavor  to 
establish  a  monopoly  throughout  the  United  States,  sufficiently  shows  that  the 
contract  was  against  the  public  policy  of  the  forum,  without  regard  to  the  lex 
loci  contractus,  and  incapable  of  enforcement.''^ 

In  an  action  based  on  a  promise  to  pay  in  event  of  the  sale  of  certain  realty, 
an  affidavit  of  defense  averring  that  such  realty  was  not  sold  but  exchanged  for 
other  realty  which  was  not  yet  sold,  and  that  consequently  time  of  payment  had 
not  arrived,  is  sufficient.^*  Where  defendant  alleges  that  the  contract  was  entered 
into  because  of  false  representations  of  the  agent  of  plaintiff,  the  denial  of  lia- 
bility because  of  the  untruth  must  be  as  broad  in  the  affidavit  of  defense  as  the 
allegation  of  the  representations.'* 


47.  Gates  V.  Paul   (Wis.)   94  N.  "W.  55. 

48.  Holz  V.  Hanson.  115  Wis.  236. 

49.  Sufficiency  of  an  answer  in  action  for 
breach  of  contract  containing-  several  sep- 
arate defenses — Falvey  v.  Woolner,  71  App. 
Div.  (N.  Y.)  331.  Answer  in  suit  for  breach 
of  contract  as  setting  up  defense  of  volun- 
tary acceptance  by  plaintiff's  assignor,  with 
full  knowledge  of  facts,  of  defendant's  ven- 
dee as  bound  to  carry  out  defendant's  con- 
tract— Falvey  v.  Woolner,  71  App.  Div.  (N. 
Y.)  331.  An  answer,  in  an  action  to  re- 
cover money  paid  on  purchase  of  a  'mining 
claim,  denying  that  payment  was  made 
after  making  the  contract,  sufficiently  con- 
troverts a  statement  in  the  complaint  that 
payments  were  made  in  accordance  with 
its  terms — Sherman  v.  Sweeny,  29  "Wash. 
.^21.  69  Pac.  1117.  An  answer  in  an  action 
on  a  building  contract  that  the  contractor 
has  failed  co  obtain  a  decision  of  the  en- 
gineers In  charge  as  to  the  fulflllment  of 
the  contract,  in  accordance  with  a  clause 
therein,  must  be  construed  liberally  to  plead 
noncompliance  with  a  condition  precedent, 
and  Is  not  demurrable  as  stating  an  insuffi- 
cient defense — National  Contracting  Co.  v. 
Hudson  River  Water  Power  Co.,  170  N.  Y. 
439. 

50.  Horton   v.   Rohlff    (Neb.)    95   N.    W.    36. 

51.  Illegality  of  an  insurance  contract, 
under   a   law    making    it   a    misdemeanor    for 


an  agent  to  give  any  inducement  by  re- 
bate for  special  favors  for  the  securing  of 
insurance,  need  not  be  pleaded  in  defense 
in  an  action  on  a  premium  note,  since  it  is 
the  duty  of  the  court  on  its  own  motion  to 
take  notice  of  the  illegality — Heffron  v.  Daly 
(Mich.)  95  N.  W.  714.  A  motion  to  dismiss 
an  action  for  breach  of  an  oral  contract, 
because  it  was  unenforceable  by  reason  of 
statutes,  cannot  be  granted  defendant  w^here 
he  pleads  general  denial  only  and  does  not 
set  up  the  statute  either  as  affirmative  de- 
fense by  objection  of  introductory  evidence 
or  as  ground  for  dismissal — Banta  v.  Banta, 
84  App.  Div.    (N.  Y.)   138. 

52.  Eccardt  v.  Eisenhauer,  74  App.  Div. 
(N.  Y.)    35. 

53.  Sufficiency  of  answer  pleading  a  par- 
tial defense  which  it  sought  to  make  a 
complete  defense — Ivy  Courts  Realty  Co.  v. 
Morton,    73   App.   Div.    (N.   Y.)    335. 

54.  Code,  §  3639 — Perpetual  Building  & 
Loan  Ass'n  v.  United  States  Fidelity  &  Guar- 
antee  Co.    (Iowa)    92    N.    W.    686. 

5.5.  Burton  v.  Rosemary  Mfg.  Co.,  132  N. 
C.    17. 

56.  Tablet  &  Ticket  Co.  v.  La  Feber  (Neb.) 
93   N.  W.    414. 

57.  Falvey  v.  Woolner,  71  App.  Div.  (N. 
Y.)     331. 

58.  Schoenbaechler  v.  Land  Title  &  Trust 
Co.,  21  Pa.   (Super.  Ct.)   415. 


§  lOH 


PLEADING. 


693 


A  plea  of  whole  or  partial  failure  of  consideration  must  state  facts  showing 
such  failure,  though  a  general  plea  of  no  consideration  may  allege  the  fact  in 
general  terms.®**  In  Xew  Jersey  a  plea  of  want  of  consideration  in  an  action  on 
a  sealed  instrument  reciting  mutual  covenants  of  the  parties  as  respective  con- 
siderations is  insuiScient  to  raise  the  question  of  sufficiency  of  the  consideration, 
the  proper  pleading  being  demurrer  or  plea  of  non  est  factum.** 

Reply.^^ — Where  defendant  pleaded  the  making  of  a  subsequent  contract  as 
superseding  the  one  on  which  action  was  brought,  plaintiff  need  not  reply  but 
may  interpose  in  defense  showing  that  such  subsequent  contract  never  existed  or 
was  rendered  void.*^ 

Issues  and  proof;  evidence  admissible  under  pleadings;  variance.'^* — A  con- 
tract sued  on  must  be  substantially  proven  as  alleged.®^  A  party  declaring  on  one 
contract  cannot  recover  on  proof  of  another,®®  nor  can  he  declare  on  an  express 
contract  and  recover  on  a  quantum  meruit.®^  Plaintiff  may  be  required  to  show 
whether  he  sues  on  a  WTitten  or  verbal  contract.®*  Where  the  complaint  averrerl 
full  performance  within  the  limited  time,  no  recovery  can  be  had  unless  a  full 
performance  is  established.®'  A  nonsuit  for  failure  to  prove  performance  of  a 
condition  in  a  contract  cannot  be  granted  where  the  pleadings  thereon  did  not 
raise  any  issue  as  to  performance  thereof.'^"  Proof  of  the  things  in  which  the 
other  party  has  defaulted  is  necessary  to  take  advantage  of  passive  violation  of  a 
contract.'^*  In  an  action  by  a  contractor  for  additional  work,  the  original  con- 
tract must  be  introduced  to  show  whether  the  work  was  beyond  such  contract, 
and  the  rate  of  payment.'''^  Before  one  party  can  recover  for  failure  of  the  other 
to  allow  him  to  perform,  he  must  show  the  contract  valid  and  certain  in  its 
terms,  a  breach  thereof,  and  damages.''^  Eecovery  cannot  be  had  in  an  action  on 
a  contract  to  collect  notes  for  plaintiff,  unless  proof  is  sho\\Ti  that  defendant  has 
collected  sums  on  such  notes,  or  by  particular  diligence  could  have  so  done,  and 
that  loss  resulted  to  plaintiff.''*     In  a  suit  on  a  contract  for  construction  of  a 


ea.  Manufacturers'  Record  Pub.  Co.  v. 
Holton,   22  Pa.   Super.  Ct.   120. 

60.  Osborne  &  Co.  v.  Hanlin,  158  Ind.  325; 
Raritan  R.  Co.  v.  Middlesex  &  S.  Trac- 
tion   Co.    (N.    J.   Sup.)    51    Atl.    623. 

61.  Pub.  Laws  1900,  p.  362 — Raritan  R. 
Co.  V.   Traction  Co.    (N.   J.   Sup.)    51   Atl.    623. 

62.  Sufficiency  of  reply  in  action  for 
breach  of  contract  as  setting  up  the  same 
contract  as  the  one  set  out  In  the  com- 
plaint— McCorkle  v.  Mallory,  30  Wash.  632, 
71  Pac.  1S6.  Necessity  of  reply  In  order 
for  plaintiff  to  prove  fraud  in  avoidance  of 
a  new  agreement  set  up  in  an  answer  in 
action  for  breach  of  a  contract;  construc- 
tion of  Code  Civ.  Proc.  §  522 — Nesbit  v. 
Jencks,    81    App.    Div.    (N.    Y.)     140. 

63.  Spier  V.  Hyde,  78  App.  Div.  (N.  T.) 
151. 

64.  Issues  In  pleading  in  action  on  con- 
tract for  sale  of  mining  property — Sher- 
man v.  Sweeny.  29  Wash.  321,  69  Pac.  1117. 
Sufficiency  of  complaint  for  failure  to  prop- 
erly construct  a  tramway  to  admit  evidence 
of  defects — Lipscomb  v.  Railroad  Co.,  65  S. 
C.  148.  Admissibility  of  proof  of  renting 
of  building  by  owner  and  of  acts  of  tenant 
after  entry  under  pleadings  in  action  by 
contractor  to  recover  for  construction — 
Mitchell  V.  Williams.  80  App.  Div.  (N.  Y.) 
527.  Variance  in  action  on  contract  leav- 
ing time  for  performance  to  be  settled  by 
subsequent  agreement — Iroquois  Furnace 
Co     V.    Elphicke.     200    111.    411.      What    con- 


stitutes a  variance  In  action  for  breach  of 
contract  where  the  complaint  did  not  allege 
a  condition  which  was  to  be  performed  by 
plaintiff  nor  its  performance — Griffin  v.  Bass 
Foundry   &   Machine  Co.,    135   Ala.    490. 

65.  Mooneyham  v.  Cella,  91  Mo.  App.  260. 
No  recovery  can  be  had  for  breach  of  an 
implied  warranty  arising  out  of  a  written 
contract — Taussig  v.  Wind  (Mo.  App.)  71 
S.    W.    1095. 

66.  Brigger  v.  Mutual  Reserve  Fund  Life 
Ass'n,  75  App.  Div.  (N.  Y.)  149;  Iroquois 
Furnace  Co.  v.  Bignall  Hardware  Co.,  201 
111.  297.  Proof  that  one  was  authorized  to 
collect  rents  is  not  evidence  of  authority 
to  make  contracts  for  leases — Dieckman  v. 
Weirich.    24   Ky.   L.    R.    2340,   73   S.  W.   1119. 

67.  Hayes   v.    Bunch,    91    Mo.    App.    467. 

68.  Lombard  v.  Citizens'  Bank  of  La,,  107 
La.    183. 

69.  Stern  v.  McKee,  70  App.  Div.  (N.  T. ) 
142. 

70.  Walterboro  &  W.  Ry.  Co.  v.  Hamp- 
ton  &  B.  R.   &  Lumber  Co.,  64  S.  C.   383. 

71.  City  of  Alexandria  v.  Morgan's  La.  & 
T.  R.  &  S.  S.  Co.,  109  La.  50;  Morgan's  La. 
&  T.  R.  &  S.  S.  Co.  V.  City  of  Alexandria, 
Id. 

72.  Board  of  Com'rs  of  Fulton  County 
V.    Gibson.    158    Ind.    471. 

73.  Truitt  v.  Fahey  (Del.  Super.)  62  Atl. 
339. 

74.  Wight  V.  Commercial  Bank  of  Albany, 
115    Ga.    787. 


b94 


CONTRACTS. 


§   lOH 


city  pavement  to  be  subject  to  approval  of  the  city  commissioner  of  public  works, 
the  contractor  must  prove  that  in  rejecting  the  work,  the  commissioner  acted 
unreasonably,  arbitrarily  or  fraudulently."  Fraud  cannot  be  shown  as  a  ground 
of  damages  where  the  pleadings  show  merely  failure  of  performance,'"  nor  can 
false  representations  be  shown  under  an  answer  failing  to  allege  that  plaintifE 
knew  them  to  be  false.^^  Where  the  answer  is  a  general  denial,  evidence  only  tend- 
ing to  prove  a  rescission  is  not  primarily  admissible.'^*  Proof  of  facts  excusing  or 
waiving  full  performance  cannot  be  admitted  under  a  complaint  to  recover  for 
full  performance,  nor  can  recovery  be  had  on  that  theory;'®  the  complaint  must 
allege  facts  constituting  the  excuse  and  that  plaintiff,  though  ready  and  willing 
to  perform,  was  prevented  by  the  other  parties.*''  Plaintiff's  evidence  cannot  be 
excluded  on  the  ground  of  illegality  of  the  contract,  where  such  illegality  does 
not  clearly  appear  on  the  face  of  the  petition;*^  nor  can  the  illegality  be  shown 
under  a  general  denial  unless  it  appears  on  the  face  of  the  complaint  or  neces- 
sarily from  the  evidence  given  by  plaintiff.*^  Under  a  plea  of  total  failure  of 
consideration  it  may  be  shown  that  the  instrument  was  executed  under  mis- 
representations as  to  the  value  of  the  consideration.*^  A  defense  of  total  failure 
of  consideration  for  a  note  should  be  admitted  under  a  general  denial  and  an 
offer  to  show  that  the  holders  purchased  with  knowledge  of  the  want  of  con- 
sideration.** Evidence  of  another  contract  relating  to  an  entirely  distinct  trans- 
action cannot  be  admitted  where  there  is  no  connection  with  the  alleged  broken 
contract.*^  Letters  between  parties  to  a  contract  written  to  obviate  a  defect 
therein  may  be  considered  in  an  action  thereon  though  based  on  the  original  con- 
tract unless  an  objection  of  variance  is  made.*®  Evidence  offered  in  proof  of 
passive  violation  of  a  contract,  without  an  allegation  of  violation  in  the  particu- 
lars sought  to  be  proven,  and  without  an  allegation  as  to  putting  in  default,  can- 
not be  admitted.*^  Evidence  tending  to  show  that  an  architect's  certificate  was 
unreasonably  withheld  cannot  be  allowed  under  a  complaint  merely  alleging 
complete  performance.**  Evidence  regarding  the  specifications  under  a  building 
contract  may  be  excluded  in  an  action  to  recover  for  work  as  extra,  though  called 
for  by  the  specifications,  where  expressly  excepted  from  the  contract.*^  Where 
two  counts  appear  in  the  complaint  and  plaintiff  elects  to  stand  on  the  first, 
evidence  on  the  second  cannot  be  introduced  by  defendant.®"  Where  a  complaint 
in  an  action  for  final  payment  on  a  building  contract  alleged  facts  showing  the 
contractor  entitled  to  the  architect's  final  certificate,  which  on  his  demand  had 


75.  Brownell  Improvement  Co.  v.  Critch- 
fleld.  197  111.  61. 

76.  Poston   V.    Eno,    91    Mo.    App.    304. 

77.  Walsh  V.  Hyatt.  74  App.  Div.  (N.  Y.) 
20. 

78.  William  E.  Peck  &  Co.  v.  "Kansas 
City  Metal  Roofing  &  Corrugating  Co.,  96 
Mo.  App.   212. 

79.  Tribune  Ass'n  v.  Eisner  &  Mendelson 
Co.,   70  App.   Div.    (N.  Y.)    172. 

80.  Stern  v.  McKee,  70  App.  Div.  (N.  Y.) 
142. 

81.  Horton  v.   Rohlff    (Neb.)    95   N.    W.    36. 

82.  Lee   v.    Lee,    40   Misc.    (N.    Y.)    251. 

83.  Negotiable  Instrument  act.  §§  9,  10 — 
Taft  V.  Myerscough.   197   111.   600. 

84.  Comp.  Laws,  §§  767.  769 — Hibbard  v. 
Freiburger    (Mich.)    94   N.    W.    727. 

85.  Inman  v.  Crawford,  116  Ga.  63.  A 
separate  mortgage  executed  by  a  former 
mortgagor  to  agents  of  defendant  is  proper- 
ly excluded  In  an  action  to  recover  balance 
due    for    threshing    grain    mortgaged    to    the 


defendant — Hill  Bros.  v.  Bank  of  Seneca 
(Mo.  App.)  73  S.  W.  307.  Where  a  contract 
was  executed  for  the  formation  of  a  cor- 
poration by  defendant,  and  subsequently  on 
receiving  payment  of  the  consideration  he 
executed  a  contract  to  return  such  sum  if 
the  corporation  failed,  testimony  as  to  a 
breach  of  the  first  contract  cannot  be  ad- 
mitted except  on  a  question  of  the  con- 
sideration for  the  second,  where  in  an  ac- 
tion to  recover  such  consideration,  plaintiff's 
witnesses  testified  that  the  action  was  on 
the  second  contract — Mendel  v.  Pickrell,  37 
Misc.    (N.   Y.)    813. 

86.  Laclede     Construction     Co.     v.     Tudor 
Iron   Works,    169   Mo.    137. 

87.  City    of    Alexandria    v.    Morgan's    La, 
&  T.   R.  &  S.   S.  Co.,   109  La.   50. 

88.  Dwyer  v.   City   of  New   York,    77   App 
Div.    (N.  Y.)   224. 

89.  Isaacs    v.    Dawson,    70    App.    Div.     (N 
Y.)    232. 

90.  Doyle  V.  Edwards,   15   S.  D.  648. 


§  lOH 


ISSUES  AND  PROOF. 


695 


been  refused,   evidence  is  admissible  showing  that  the  certificate  had  been  re- 
fused at  the  instance  of  the  owner."     Evidence  of  the  value  of  land  to  be  ex- 
changed for  other  property  by  plaintiff  for  defendant  may  be  properly  excluded 
in   an   action   on  the  contract,   where  the  consideration  was   certain   personalty 
which  plaintiff  was  to  receive  from  defendant.®^     Evidence  of  the  value  of  work 
performed  under  a  contract  to  defendant  will  not  affect  the  right  of  recovery 
where  the  work  was   performed   at  a  stipulated   price   and  the   action  was   not 
brought  on  a  quantum  meruit.®^     Letters  constituting  part  of  correspondence  by 
which  a  contract  was  made  are  properly  admitted,  though  they  may  constitute 
a  modification  of  the  contract,  where  the  defendant  pleaded  such  modification 
as  an  aflSrmative  defense,  and  if  properly  introduced  as  part  of  the  correspond- 
ence they  may  be  considered  as  showing  the  modification.^*     An  excuse  for  non- 
performance cannot  be  shown  under  a  plea  of  performance  of  a  condition  prece- 
dent.®'    Where  a  contract  provided  that  in  consideration  of  the  conduct  of  a 
certain  suit  defendant  would  convey  to  plaintiff  at  a  certain  time  certain  lands 
in  default  of  which  he  would  pay  a  certain  amount  of  money,  the  fact  that  time 
was  or  was  not  of  the  essence  of  the  contract  was  not  material  in  an  action  to 
enforce   the   payment   thereunder,   since   when    defendant    failed    to   procure   the 
conveyance  he  became   absolutely  liable  for  the  payment  of  the  money.*®     No 
recovery  can  be  had  on  an  implied  contract  under  paragraphs   of  a  complaint 
counting  on  a  special  contract.*^     Proof  as  to  a  subsequent  oral  agreement  modi- 
fying a  written  contract  pleaded  constitutes  a  variance."^     Plaintiff  cannot  dis- 
regard  an  invalid  portion  of  his  contract  in  an  action  for  breach  thereon  and 
recover  on  the  remainder,  on  the  theory  that  the  contract  is  severable  where  his 
petition  is  not  drawn  on  that  theory.®®    Allegations  of  a  petition  in  an  action  for 
breach  of   a  construction  contract   that  materials  furnished   were  not  good   and 
that  the  work  was  not  properly  performed  will  not  entitle  plaintiff  to  recovery 
because  of  failure  to  protect  the  construction  after  it  was  made,  where  it  was 
properly  done,^     Proof  of  performance  of  a  contract  for  a  year's  service  durino- 
ten  months  and  of  a  waiver  of  the  continued  performance  is  a  fatal  variance 
from  a  counterclaim  foimded  on  the  entire  period  of  service  and  alleging  per- 
formance.^    A  nonsuit  was  properly  granted  because  of  a  failure  of  proof  rather 
than  a  departure  in  the  evidence  where  defendant  showed  the  contract  to  have 
been  greatly  modified  by  a  subsequently  written  agreement,  and  there  was  no 
proof  of  any  breach  of  the  modified  contract.^     Where  a  note  is  only  collaterally 
involved  in  a  suit  for  breach  of  a  contract  to  reimburse  the  maker,  a  variance  in 
describing  the  note  in  the  complaint  as  signed  by  plaintiff  only,  whereas  it  was 
signed  by  another   also,  is   immaterial.*     Where  a  complaint  in   an   action  for 
breach  of  a  contract  to  advance  a  law  firm  certain  money  for  prosecution  of  liti- 
gation did  not  allege  that  the  payments  advanced  were  not  used  for  the  purpose 
of  litigation,  but  evidence  on  that  point  had  been  received  without  objection,  it 


01.     Vanderhoof    v.    Shell,    42    Or.    678,    72 
Pac.    126. 

92.     Dlstad   V.   Shanklln,    15    S.    D.    607. 

03.  Cralgr  v.  French,  181  Mass.   282. 

04.  Lost    Lake    Lumber    Co.    v.    Smith,    29 
Wash.   713,   70  Pac.   134. 

05.  White    V.    Mitchell.    30    Ind.    App.    342. 

06.  Ehrlch    v.     Durkee     (Colo.     App.)     72 
Pac.   814. 

•7.     Davis  V.  Chase,  169  Ind.  242. 


98.  Duval   V.  American  Telephone  &   Tel- 
egraph Co.,  113  Wis.  504. 

99.  Laclede     Construction     Co.     v.     Tudor 
Iron  Works,  169  Mo.  137. 

1.  Taussig   v.   Wind    (Mo.   App.)    71    S.    W. 
1095. 

2.  Nelson   v.  Hatch,   70  App.   Dlv.    (N.   Y.) 
206. 

3.  Lost    Lake    Lumber    Co.    v.    Smith,    29 
Wash.    713,    70    Pac.    134. 

4.  Culver  v.  Caldwell   (Ala.)    34  So.   13. 


696 


CONTRACTS. 


§   101 


may  be  considered  that  the  complaint  was  amended  in  order  to  give  effect  to  such 
evidence.'^ 

(§  10)  /.  Evidence.  Presumptions  and  burden  of  proof." — A  consideration 
will  be  persumed  as  to  a  contract  under  seal/  or  a  contract  in  writing.*  One  signing 
a  contract  without  being  influenced  by  fraud  is  presumed  to  know  its  contents.' 
It  will  not  be  presumed  that  the  parties  intended  to  provide  for  an  illegal  act  or 
one  which  would  avoid  their  contract."  A  contract  undertaken  by  two  or  more 
persons  is  presumed,  at  the  common  law,  to  be  joint  until  the  presumption  is 
overcome  by  words  of  severance."  A  conveyance  from  a  client  to  an  attorney  in 
payment  of  fees  and  loans  is  not  presumed  fraudulent,"  however,  in  Georgia, 
the  purchase  of  a  judgment  from  a  client  by  his  attorney  is  presumed  invalid." 
Mere  testimony  that  one  party  knew  of  certain  facts  at  the  time  of  the  making 
of  the  contract  is  too  indefinite  to  warrant  a  presumption  that  they  contracted 
with  reference  to  such  facts,  where  nothing  was  said  between  the  parties  at  the 
time  reo-ardinc^  them.^*  Plaintiff  must  prove  the  obligation  of  defendant  under 
the  contract,"  and  performance  of  the  contract."  He  who  asserts  a  waiver  of  a 
provision  in  a  contract,"  or  the  absence,^*  or  partial  illegality  of  consideration," 
or  mental  incapacity  to  contract,^"  must  prove  it.  Defendant  must  show  fraud 
in  the  execution  of  a  written  contract,"  or  illegality  of  the  contract,^''  unless  it 
is  the  duty  of  the  court  to  notice  the  illegality  of  its  own  motion  ;^^  but  if  a 
written  statement  in  evidence  is  set  up  as  a  false  representation,  and  its  falsity 
is  sought  to  be  proved  by  other  evidence,  complainant  nevertheless  has  the  burden 
of  proving  its  falsity.^*  In  an  action  on  an  account  for  intoxicating  liquor, 
defendant   has   the  burden   of   proving   illegal   sales."      The   owner   sued  on   a 


5.  Scheurer  v.  Monash,  37  Misc.  (N.  Y.) 
803. 

6.  Presumption  of  Invalidity  of  contract 
for  purchase  of  client's  judgment  by  attor- 
n£y — Stubblnger  v.  Frey,  116  Ga.  396.  That 
plaintiff,  his  wife  and  several  children  re- 
sided for  a  year  at  a  hotel  belonging  to 
his  mother  and  operated  by  another  son 
as  her  agent,  and  that  plaintiff  and  his 
children  did  not  live  in  the  family  of  the 
mother  or  render  her  any  services,  and  that 
an  allowance  was  made  for  the  services  of 
his  wife  to  the  mother,  will  raise  no  pre- 
sumption that  board  was  furnished  them 
gratuitously,  but  a  contract  to  pay  will  be 
implied — Weitnauer  v.  Weitnauer,  117  Iowa, 
578. 

7.  Howie  V.  Kasnowitz,  83  App.  Dlv.  (N. 
Y  )    295. 

8.  Ash  V.  Beck  (Tex.  Civ.  App.)  68  S. 
W  53;  Kiesewetter  v.  Kress.  24  Ky.  L. 
R.  1239,  70  S.  W.  1065;  Rev.  St.  1899, 
§  894 — Holmes  v.  Farris.  97  Mo.  App.  305; 
Tapley  v.  Herman,  95  Mo.  App.  537;  Low- 
rey  v.  Danforth,  Id.  441;  Brown  v.  John- 
son Bros..  135  Ala.  608;  Woodworth  v.  Veitch, 
29  Ind.  App.  589;  Pritchett  v.  Sheridan  (Ind. 
App.)  63  N.  E.  865;  Gallagher  v.  Kiley,  115 
Ga.   420;   McMlcken  v.   Safford,   197   111.  540. 

9.  Fivey  v.  Railroad  Co.,  67  N.  J.  Law, 
627. 

10.  Horton  v.  Rohlff  (Neb.)  95  N.  W.  36; 
Bostwick  V.  Insurance  Co.  (Wis.)  92  N.  W. 
246;  Johnston  v.  Insurance  Co..  93  Mo.  App. 
B80. 

11.  Hill  V.   Combs.    92   Mo.   App.    232. 

12.  Lindt  V.  Llnder.  117  Iowa,  110. 
IS.     Stubbinger    v.    Frey,    116    Ga.    396. 

14.  Murphy  v.  Dernberg,  84  App.  Div. 
(N.    T.)    101. 


15.  Plaintiff  suing  for  balance  of  com- 
pensation under  a  contract  for  performance 
of  a  theatrical  exhibition  must  prove  an 
alleged  agreement  by  defendant  to  pay  at 
some  future  time  an  unsatisfied  balance  of 
the  contract  price  made  during  the  last 
performance — Charley  v.  Potthoff  (Wis.)  95 
N.    W.    124. 

16.  Special  contract — Aarnes  v.  Windham 
(Ala.)  34  So.  816;  Froellch  v.  Christie.  115 
Wis.  549.  In  an  action  by  one  for  services 
under  a  contract  making  it  optional  with 
the  other  party  as  to  whether  such  serv- 
ices should  be  continued,  plaintiff  must  show 
that  he  performed  the  services — Shedrick 
v.  Young,   72  App.   Div.    (N.   Y.)    278. 

17.  Sessa  v.  Arthur  (Mass.)  66  N.  E. 
804. 

18.  Howie  v.  Kasnowitz,  83  App.  Dlv.  (N. 
Y.)    295. 

io.  A  party  alleging  In  an  action  on  a 
contract  that  a  certain  promise  was  based 
on  an  illegal  consideration,  as  a  reason  for 
his  failure  in  its  fulfillment,  must  prove 
such  allegations — Anderson  v.  Carlson,  99 
111.    App.    514. 

20.  Tuite  V.  Hart,  71  App.  Div.  (N.  Y.) 
619. 

21.  Flvey  V.  Railroad  Co.,  67  N.  J.  Law, 
627;  Edwards  v.  Story,  105  111.  App.  433: 
Harrington  v.  Mining  Co.,  27  Mont  1,  69 
Pac.    102. 

22.  Horton   v.    Rohlff    (Neb.)    95   N.   W.   36. 

23.  Heffron  v.  Daly  (Mich.)  95  N.  W. 
714. 

24.  Garrison  v.  Technlc  Electrical  Works. 
63    N.    J.    Eq.    806. 

25.  Overstreet  v.  Brubaker  (Mo.  App.)  71 
S.    W.    1090. 


8  101 


EVIDENCE. 


697 


building  contract  must  show  that  an  architect's  certificate  presented  by  the  con- 
tractor was  secured  by  fraud  ;28  and  if  he  counterclaims  liquidated  damages  for 
failure  to  complete  the  work  in  the  agreed  time,  he  must  show  such  failure." 
Where  plaintiff  declared  on  an  open  account  but  defendant  pleaded  a  verbal  con- 
tract, which  plaintiff  admitted  while  testifying  that  it  was  restricted  to  a  time 
stated,  he  must  prove  the  restriction.-^  The  burden  is  on  an  attorney  to  show 
that  his  purchase  of  a  judgment  from  his  client  was  fair  and  for  a  sufficient 
consideration. 29  In  an  action  for  wages,  the  employer  must  show  that  other 
and  more  profitable  employment  had  been  offered  to  plaintiff  and  declined  by 
him,  or  might  have  been  found,  in  order  to  reduce  the  damages.^"  In  an  action 
for  services,  an  allegation  in  the  answer  that  plaintiff  was  to  receive  a  certain 
amount  under  a  special  contract,  which  had  been  paid,  amounted  to  a  plea  of 
payment  and  the  burden  was  on  defendant  to  prove  the  contract  he  alleged.*^ 
Where  water  rents  for  irrigation  purposes  under  a  contract  were  not  collected 
during  the  first  year  owing  to  a  loss  of  crops  for  insufficiency  of  water,  and  the  next 
year  a  new  contract  was  made  without  demand  for  such  previous  rents,  it  will  be 
presumed  in  an  action  to  set  aside  for  nonperformance  that  the  debt  of  the  first 
year  was  merged  in  the  consideration  for  the  later  contract.^^ 

Admissibility  of  evidence.^^ — Parol  evidence  is  inadmissible  to  vary,  contra- 
dict, or  modify  a  written  contract  unambiguous  in  its  terms,^*  especially  where 


26.  Schultze  V.  Goodsteln,  82  App.  Dlv. 
(N.   Y.)    316. 

27.  Dunn  V.  Morgenthau,  73  App.  Div. 
(N.    T.)    147. 

28.  Austin    V.    Schwlng    (La.)    34    So.    700. 

29.  Stubbinger    v.    Frey,    116    Ga.    396. 

30.  Griffin  v.  Brooklyn  Ball  Club.  68  App. 
Dlv.    (N.   Y.)    566. 

31.  Burton  v.  Manufacturing  Co.,  132  N. 
C.    17. 

32.  Perkins  v.    Frazer,    107   La.    390. 

33.  Evidence  admissible  in  action  by  sub- 
contractor to  recover  for  work  as  extra 
which  was  called  for  by  specifications — 
Isaacs  V.  Dawson,  174  N.  Y.  537.  Evidence 
in  action  by  a  surety  against  a  state  officer 
for  breach  of  a  contract  to  reimburse  the 
surety  for  money  paid  on  the  bond  of  the 
deputy  of  the  officer,  as  to  examination  by 
the  public  examiner  of  the  accounts  of  the 
department — Culver  v.  Caldwell  (Ala.)  34 
So.  13.  Evidence  of  what  persons  In  the 
audience  said  on  leaving  a  theater  during 
exhibitions  may  be  admitted  on  the  ques- 
tion of  compliance  of  the  opera  company 
with  its  contract  for  the  exhibition  in  an 
action  by  it  to  recover  compensation — 
Charley  v.  Potthoff  (Wis.)  95  N.  W.  124. 
Expert  evidence  as  to  whether  there  were 
cases  in  which  earthen  sewer  pipe  was 
preferable  to  iron,  where  the  contractor 
was  seeking  to  excuse  its  substitution  for 
Iron  pipe  required  by  the  contract,  on  the 
ground  that  the  condition  of  the  soil  made 
It  necessary;  and  as  to  the  size  of  pipe 
which  Is  preferable  under  laundry  tubs, 
may  be  admitted  on  the  issue  in  a  building 
contract,  where  It  appeared  that  the  smaller 
size  conformed  to  the  regulations  of  the 
building  department — Schultze  v.  Goodsteln, 
82  App.  Div.   (N.  Y.)   316. 

34.  Koffman  v.  Southwest  Missouri  Elec. 
Ry.  Co.,  95  Mo.  App.  459;  Sexton  v.  Barrie, 
102  111.  App.  586;  Heard  v.  Tappan,  116  Ga. 
930;  Consumers'  Ice  Co.  v.  Jennings  (Va.) 
42  S.  E.  879;  Foote  &  Davlea  Co.  v.  Malony, 


115  Ga.  985;  Rolfs  v.  Atchison,  T.  &  S.  F. 
Ry.  Co.  (Kan.)  71  Pac.  526;  Wear  Bros. 
v.  Schmelzer,  92  Mo.  App.  314;  Walther  v. 
Stampfll,  91  Mo.  App.  398;  Dady  v.  O'Rourke. 
172  N.  Y.  447;  Brewer  v.  Grogan,  116  Ga. 
60;  New  Idea  Pattern  Co.  v.  Whelan,  75 
Conn.  455;  National  Computing  Scale  Co.  v. 
Eaves.  116  Ga.  511;  Wilson  v.  Hinnant,  117 
Ga.  46;  Grand  Lodge,  A.  O.  U.  W.,  v.  Bunk- 
ers. 23  Ohio  Circ.  R.  487;  De  Sola  v.  Pom- 
ares,  119  Fed.  373;  Over  v.  Walzer,  103  111. 
App.  104.  Contract  to  pay  debt  of  another 
— Fritch  V.  Citizens'  Bank,  202  Pa.  287.  Evi- 
dence of  what  the  parties  to  a  written  con- 
tract construed  it  to  mean,  cannot  be  shown 
to  change  or  alter  its  terms — Hart  v.  Hart 
(Wis.)  94  N.  W.  890.  An  oral  promise  by 
one  of  the  parties  to  a  written  contract 
cannot  be  admitted  to  add  to  the  contract 
on  the  ground  that  it  is  collateral  unless  It 
relates  to  a  subject  distinct  from  that  to 
which  the  Instrument  relates — Johnson  v. 
Kindred  State  Bank  (N.  D.)  96  N.  W.  588. 
Contract  for  construction  of  a  telephone 
and  telegraph  line  over  property  different 
from  that  mentioned  in  the  subsequent  parol 
contract  sought  to  be  shown — Southern  Bell 
Telephone  &  Telegraph  Co.  v.  Harris  (Ga.) 
44  S.  E.  885.  Where  a  shipping  receipt  was 
filled  out  by  the  shipper  and  signed  by  the 
carrier's  agent,  the  conditions  therein  stated 
became  tlie  contract  of  shipment  between 
the  parties  so  that  oral  evidence  was  in- 
admissible to  show  that  the  goods  were 
shipped  under  a  special  agreement  as  to 
time  of  delivery — Sloman  v.  National  Exp. 
Co.  (Mich.)  95  N.  W.  999.  Executed  writings 
express  on  their  face  the  complete  contract 
between  the  parties  and  neither  express  nor 
implied  warranties  may  be  injected  into  the 
contract  by  proof  of  prior  oral  conversa- 
tion— Telluride  Power  Transmission  Co.  v. 
Crane  Co.,  103  111.  App.  647.  Oral  evidence 
that  the  sellers  of  a  certain  business  agreed 
never  to  re-engage  in  the  business  in  the 
same   vicinity    cannot    be    admitted    to    vary 


598 


CONTRACTS. 


§  101 


neither  fraud  nor  misrepresentation  is  shown;''  but  consideration  for  a  written 
contract  may  be  shown  by  parol/®  or  a  mistake  in  consideration/^  or  in  the 
name  of  a  party/*  or  the  place  of  performance,  if  the  contract  is  silent  in  that 
particular/"  or  the  subject-matter  may  be  identified.''*'  If  a  written  contract 
purports  on  its  face  to  contain  the  whole  agreement  of  the  parties,  oral  evidence 
cannot  be  received  to  add  to  or  vary  its  terms,  but  it  if  appears  from  the  face  of 
the  instrument  that  the  whole  agreement  was  not  reduced  to  writing,  and  that 
the  instrument  does  not  express  the  entire  agreement,  the  oral  part  of  the  con- 
tract may  be  shown  under  proper  allegations.*^  A  conversation  by  the  parties 
with  reference  to  a  written  instrument  may  be  admitted.*^  Evidence  of  cir- 
cumstances surrounding  the  making  of  a  contract  is  admissible  on  the  issue  as 
to  its  terms.*'  A  misunderstanding  between  the  parties  to  a  contract  as  to  its 
construction  cannot  be  shown  from  testimony  of  one  party  that  he  understood 
it  differently  from  the  claim  of  the  other,  but  only  from  the  language  used.** 
Negotiations  in  regard  to  a  second  contract,  on  a  different  basis,  after  expiration 
of  the  first,  will  not  constitute  evidence  of  renewal  of  the  first  contract.*^  Where 
a  contract  with  a  corporation  provides  for  pa}Tnent  of  a  certain  sum  in  a  certain 
time  and  that  it  shall  not  be  modified  except  by  resolution  of  the  directors, 
proof  that  the  oflficers  of  the  company  informed  the  other  party  of  a  modifica- 
tion IS  inadmissible  in  an  action  on  the  contract  to  show  that  it  would  mature 
earlier.*®  Corrections  and  interlineations  clearly  shown  to  have  been  made  before 
a  contract  was  signed  will  not  render  it  inadmissible  as  evidence.*^  A  written 
instrument  constituting  part  of  the  contract,  made  and  delivered  to  defendant  by 
the  other  party  at  the  time  of  execution,  is  admissible  in  a  suit  on  the  contract.** 
Under  the  statutes  of  1851,  Illinois,  deeds  not  recorded  prior  to  that  time  were 
admissible  in  ejectment,  though  not  accompanied  by  certificate  of  magistracy.*" 
Full  opportunity  to  a  purchaser  for  examination  of  the  subject-matter  consti- 


a  written  agreement  for  the  sale  of  the  busi- 
ness specifying  merely  that  good-will  is 
Included — Zanturjian  v.  Boornazlan  (R.  I.) 
55  Atl.   199. 

3.-5.  Mefford  v.  Sell  (Neb.)  92  N.  W.  148. 
Admissibility  of  parol  evidence  to  show 
fraud  In  execution  of  written  contract  (Le 
Bleu  V.  Savoie,  109  La.  680);  it  must  be 
pleaded  to  be  admitted  (New  Idea  Pattern 
Co.  V.  Whelan,  75  Conn.  455;  Telluride  Pow- 
er Transmission  Co.  v.  Crane  Co.,  103  111. 
App.  647);  character  of  evidence  as  parol 
(American  Cotton  Co.  v.  Collier  [Tex.  Civ. 
App.]  69  S.  W.  1021;  Hurlbert  v.  Kellogg 
Lumber  &  Mfg.  Co.,  115  Wis.  225;  Leicher  v. 
Keeney  [Mo.  App.]  72  S.  W.  145).  It  cannot 
be  introduced  to  enable  recovery  on  a  con- 
tract not  expressed  by  the  writing — Koffman 
V.  Southwest  Missouri  Elec.  Ry.  Co.,  95  Mo. 
App.  459. 

36.  Deeds — Martin  v.  White,  115  Ga.  866; 
Poor's  Ex'r  v.  Scott,  24  Ky.  L.  R.  239,  68 
S.  W.  397;  Columbia  Nat.  Bank  v.  Baldwin 
(Neb.)  90  N.  W.  890;  Harkless  v.  Smith, 
115  Ga.  350;  Lenhardt  v.  Ponder.  64  S.  C. 
354.  Notes — Vradenburg  v.  Johnson  (Neb.) 
91  N.  W.  496;  Folmar  v.  Slier,  132  Ala.  297. 
Mortgages — Boren  v.  Boren  (Tex.  Civ.  App.) 
68  S.  W.  184.  Bin  of  sale — Wolf  v.  Has- 
lach  (Neb.)  91  N.  W.  283.  Contract  for  sale 
of  standing  timber;  under  express  provi- 
sions of  statutes  1889.  §  470 — Strubbe  v. 
Lewis  (Ky.)  76  S.  W.  150.  The  writing  im- 
ports a  consideration — Ash  v.  Beck  (Tex.  Civ. 
App.)    68   S.   W.   53. 


37.  An  allegation  of  fraud,  accident  or 
mistake  is  unnecessary — Boren  v.  Boren 
(Tex.   Civ.   App.)    68   S.   W.   184. 

38.  Stokes  v.  Riley  (Tex.  Civ.  App.)  68 
S.    W.    703. 

39.  Cook  V.  Todd,  24  Ky.  L.  R.  1909,  72 
S.  W.  779;  Gehl  v.  Milwaukee  Produce  Co. 
(Wis.)    93    N.    W.    26. 

40.  Where  a  contract  for  the  sale  of 
standing  timber  sufficiently  describes  the 
land  to  show  the  subject  of  contract,  parol 
evidence  may  be  admitted  to  Identify  the 
land  intended — Strubbe  v.  Lewis  (Ky.)  76 
S.  W.  150. 

41.  Johnson  v.  Kindred  State  Bank  (N.  D.) 
96    N.    W.    588. 

42.  Copeland  v.  Copeland,  64  S.  C.  251. 
Evidence  of  negotiations  between  the  par- 
ties before  the  contract  is  reduced  to  writ- 
ing cannot  be  admitted  In  an  action  on  the 
contract  except  to  aid  the  court  to  con- 
strue the  Instrument — Arthur  v.  Baron  De 
Hirsch    Fund    (C.   C.    A.)    121    Fed.    791. 

43.  Anderson  v.  Harper,  30  Wash.  378,  70 
Pac.  965. 

44.  Durgin  V.  Smith  (Mich.)  94  N.  W. 
1044. 

45.  O'Connor  v.  Briggs,   182  Mass.   387. 

46.  Cleckley  v.  Mutual  Fidelity  Co.  (Ga.) 
43    S.    E.    725. 

47.  Crowley  v.  United  States  Fidelity  & 
Guaranty  Co.,   29  Wash.   268.  69  Pac.  784. 

48.  Sivell  v.  Hogan,  115  Ga.  667. 

49.  Laws  1851,  p.  122 — Stalford  v.  Qold- 
rlng,  197  111.  156. 


101 


EVIDENCE. 


699 


tutes  evidence  of  good  faith  of  the  vendor.''°  The  good  reputation  of  a  contractor 
for  fair  and  honorable  dealing  cannot  be  shown  on  issue  as  to  whether  he  had 
('omplied  with  terms  of  a  building  contract. ^^  On  the  question  of  damages  for 
breach  of  a  contract  to  sell  goods  in  certain  territory,  evidence  of  sales  of  similar 
goods  between  the  time  of  the  breach  and  of  the  trial  may  be  shown  where  the 
damages  are  confined  to  loss  of  profits. ^^  Evidence  of  cost  of  extra  work  to 
plaintiff  is  not  admissible  to  establish  the  liability  under  a  building  contract, 
where  no  evidence  of  the  amount  of  the  work  or  its  value  as  fixed  by  the  terms 
of  the  contract  is  shown.^^'^  As  tending  to  show  the  history  of  a  transaction  in 
whicli  a  contract  was  made  for  the  purchase  of  timber  lands  on  commission,  evi- 
dence is  properly  admitted  of  the  hiring  of  men  and  teams  to  aid  in  inspecting 
the  lands  though  it  was  not  claimed  that  the  prospective  purchaser  was  liable 
therefor.'^*  In  an  action  on  a  contract  between  co-sureties  for  payment  of  a  note 
and  division  of  all  collections  made  thereon,  evidence  of  their  joint  demand  on 
the  principal  to  pay  the  balance  due  may  be  admitted  as  showing  that  defendant 
had  recognized  their  joint  interest  in  the  debt.^^  Where  it  appears  that  a  great 
number  of  changes  were  made  in  the  original  plans  for  a  building  by  the  archi- 
tect, and  that  much  extra  work  was  required,  evidence  was  admissible  to  show 
what  work  was  done  under  direction  of  the  architect  as  well  as  under  the  original 
plans,  which  had  therefore  become  inadequate.^" 

Sufficiency   of   evidence.^'' — To   render   one   liable    for   breach   of   a   contract, 
he  must  be  shown  to  have  obligated  himself  to  perform  the  conditions  which  it 


50.  Garrison  v.  Technic  Electrical  Works, 
63    N.    J.    Eq.    806. 

51.  Cannon  v.  Hunt,  116  Ga.  452. 

52.  Hichhorn    v.    Bradley,    117    Iowa,    130. 

53.  North  American  Ry.  Const.  Co.  v.  R. 
E.  McMath  Surveying  Co.  (C.  C.  A.)  116  Fed. 
169. 

54.  Culver  v.  Smith   (Mich.)    91  N.  W.  608. 

55.  Cramer  v.  Redman  (Wyo.)  68  Pac. 
1003. 

56.  McClellan  v.  McLemore  (Tex.  Civ. 
App.)    70   S.   W.    224. 

57.  Sufficiency  of  evidence  of  mistake  in 
execution  of  note — Bailey  v.  Wood,  24  Ky. 
L.  R.  801,  69  S.  V/.  1103.  Of  undue  influ- 
ence— Lodg-e  v.  Hulings,  63  N.  J.  Eq.  159. 
Of  abandonment  of  a  contract — Eagle  Iron 
Works  v.  Farley,  83  App.  Div.  (N.  Y.)  82; 
Kelly  v.  Short  (Tex.  Civ.  App.)  75  S.  W. 
877.  Of  breach  of  wrecking  contract  by 
masters  of  a  vessel — The  Helios  (C.  C.  A.) 
115  Fed.  705.  Of  rescission  of  contract — 
Walsh  v.  Hyatt.  74  App.  Div.  (N.  Y.)  20.  Of 
intention  to  evade  tax  on  mortgage  by  con- 
tract for  second  mortgage — Brown  v.  New- 
ell, 64  S.  C.  27.  Of  contract  to  pay  for  serv- 
ices by  making  will  in  favor  of  servant- 
Leahy  V.  Campbell,  70  App.  Div.  (N.  Y.) 
127.  Of  contract  for  cancellation  of  notes — 
Templeton  v.  Butler  (Wis.)  94  N.  W.  306. 
Of  the  offer  and  acceptance  of  a  contract 
for  plastering  houses — Disken  v.  Herter,  73 
App.  Div.  (N.  Y.)  453.  In  an  action  for 
breach  of  a  contract  to  purchase  a  mechan- 
ic's lien  provided  it  was  a  first  claim  on 
the  property — Dodson  v.  Crocker  (S.  D.) 
94  N.  W.  391.  In  action  between  co-sure- 
ties on  a  contract  to  pay  the  notes  secured 
and  divide  collections  made  thereon  as 
against  the  principal — Cramer  v.  Redman 
(Wyo.)  68  Pac.  1003.  In  action  for  breach 
of  a  contract  for  sawing  lumber — Harris 
V.   Gano    (Ga.)    44   S.   E.    8.      In   action   to   re- 


cover freight  under  a  contract — Hunter  v. 
Helsley  (Mo.  App.)  73  S.  W.  719.  In  an 
action  to  recover  for  property  lost  In  sleep- 
ing car  where  it  was  left  under  a  promise 
of  care  by  an  employe  of  the  company  op- 
erating the  car — Nobie  v.  Great  Northern 
Ry.  Co.  (Minn.)  94  N.  W.  434.  In  an  ac- 
tion by  a  building  contractor  for  the  value 
of  extra  work,  to  show  that  a  demand  by 
the  owner  for  arbitration  to  settle  the  com- 
pensation for  such  extra  work  was  fully 
justified — Van  Note  v.  Cook,  171  N.  Y.  659. 
To  show  that  one  attempting  to  recover  a 
portion  of  tiie  gross  commissions  received 
by  a  brokerage  firm  as  an  employe  knew 
that  the  commissions  were  earned  in  a  man- 
ner contrary  to  public  policy — Cullison  v. 
Downing,  42  Or.  377,  71  Pac.  70.  To  show 
ratification  of  contracts  and  deeds  in  a 
suit  for  their  cancellation — American  Cotton 
Co.  V.  Collier  (Tex.  Civ.  App.)  69  S.  W. 
1021.  To  show  that  a  party  to  a  contract 
was  mentally  capable  of  ratifying  it — Den- 
ny V.  Stokes  (Tex.  Civ.  App.)  72  S.  W. 
209.  To  show  the  Insolvency  of  a  party 
at  the  time  a  contract  was  made,  entitling 
the  other  party  to  disaffirming  on  account 
of  fraud — University  of  Virginia  v.  Snyder 
(Va.)  42  S.  E.  337.  To  show  breach  of  a 
contract  for  delivery  of  goods — J.  E.  Dunn 
&  Co.  V.  Smith  (Tex.  Civ.  App.)  74  S.  W. 
576.  To  show  that  a  failure  to  deliver 
building  materials  within  a  certain  time 
had  been  waived  by  the  other  party — Boyle 
V.  Fox.  72  App.  Div.  (N.  Y.)  617.  To  show 
substitution  of  verbal  for  original  written 
contract — Rowland  Lumber  Co.  v.  Ross  (Va.) 
40  S.  E.  922.  To  show  a  contract  between 
the  parties — Standard  Oil  Co.  v.  Goodman 
Drug  Co.  (Neb.)  95  N.  W.  667.  To  show 
contract  to  make  an  heir  of  one  who  ren- 
dered service  to  deceased — McElvain  v.  Mc- 
Elvain,    171    Mo.    244.      To    show    failure    to 


700 


CONTRACTS. 


§   101 


is  alleged  he  failed  to  perform."  Evidence  of  damages  for  breach  of  a  contract 
must  be  reasonably  certain  and  not  founded  in  speculation  and  conjecture."*" 
That  plaintiff  misunderstood  the  terms  of  a  contract  will  not  suffice  to  show 
fraud.®"  Mere  presence  of  old  age  or  physical  infirmity  will  not  raise  a  presump- 
tion of  incapacity  to  contract.®^  In  an  action  on  a  contract  for  services,  it  must 
be  proven  by  reasonable  preponderance  that  there  was  an  express  promise  to 
pay  for  the  services  in  case  they  were  rendered.®^  Evidence  of  compensation  for 
services  received  under  a  contract  is  insufficient  to  show  the  validity  of  its  execu- 
tion.®* In  an  action  for  services,  it  must  be  proven  by  reasonable  preponderance 
that  there  was  an  express  promise  to  pay  for  the  services  in  case  they  were  ren- 
dered.®* In  an  action  on  a  promise  made  in  a  letter  written  by  a  deceased,  the 
testimony  of  his  wife  that  the  letter  was  in  the  handwriting  of  her  husband  with- 
out corroborative  evidence  in  the  record  to  show  the  fact  was  insufficient  to  pre- 
vent a  nonsuit.®'  The  certificate  of  an  architect  showing  compliance  by  the  con- 
tractor and  his  right  to  pa}Tnent  is  conclusive,  unless  impeached  for  fraud.®" 
Eecital  of  a  debt  owing  to  the  mortgagee  in  a  mortgage,  given  to  secure  him  in 
an  agreement  to  pay  the  debt  of  the  mortgagor  owing  to  a  third  person,  is  prima 
facie  evidence  thereof  under  a  plea  of  set  off  in  a  suit  in  equity  by  the  third  per- 
son to  enforce  the  agreement.®^  In  an  action  by  a  bank  president  against  the 
cashier  to  recover  the  share  of  profits  alleged  to  have  been  made  by  the  latter  in 
the  sale  of  stock,  held  as  collateral  security  for  the  debt  of  a  corporation  after 
it  had  been  re-organized  by  the  cashier  and  the  debt  paid,  evidence  of  mere  gen- 


perform  contract  according  to  its  terms — 
International  Soc.  v.  Dennis,  76  App.  Div. 
(N.  Y.)  327.  To  show  tliat  court's  allow- 
ance for  extras  and  alterations  on  a  build- 
ing contract  was  excessive — California  Iron 
Const.  Co.  V.  Bradbury,  138  Cal.  328,  71  Pac. 
346,  617.  To  show  that  a  license  under  a 
patent  was  granted  to  a  partnership  and  not 
to  a  corporation  subsequently  organized  un- 
der the  same  name  so  as  to  entitle  the  lat- 
ter to  aue  thereon — Toppan  v.  McLaugh- 
lin, 120  Fed.  705.  To  show  right  to  enforce- 
ment of  a  contract  to  convey  a  fourth  in- 
terest in  a  mining  claim — Jordan  v.  Coulter, 
30  Wash.  116,  70  Pac.  257.  To  establish  right 
to  extra  compensation  under  a  contract  for 
services  in  securing  consent  of  property 
holders  to  the  erection  of  an  elevated  rail- 
road— Union  El.  R.  Co.  v.  Nixon,  199  Jll. 
235.  Showing  a  right  in  a  purchaser  of 
certain  lots  In  a  plat  to  compel  the  vendor 
to  open  a  street  by  a  deflected  course  over 
a  lot  originally  conveyed  by  him  to  an- 
other but  afterwards  re-purchased — Miller 
V.  Mackey,  204  Pa.  345.  To  establish  a  writ- 
ing by  defendant  In  an  action  on  a  con- 
tract as  binding  him  for  the  amount  sued 
for  under  an  agreement  for  services — Davi- 
son V.  McWhorter,  115  Ga.  844.  To  show 
that  a  transaction  carried  on  by  plaintiffs 
husband,  whereby  stock  belonging  to  her 
was  delivered  to  a  corporation,  constituted 
a  loan  from  her  and  not  a  donation  from 
her  husband — Fanny  Rawlings  Min.  Co.  v. 
Tribe,  29  Colo.  302,  68  Pac.  2S4.  Of  recon- 
ventional  demand  for  damages  resulting 
from  breach  in  action  on  contract — Payne 
V.  Amos  Kent  Brick  &  Lumber  Co.  (La.) 
34  So.  763.  Transgression  of  public  policy 
must  clearly  appear  by  the  evidence — Equi- 
table Loan  &  Security  Co.  v.  Waring  (Ga.) 
44  S.   E.   320.     Where  a  change   In  the   plans 


of  work  under  a  contract  between  an  In- 
dividual and  a  partnership  resulted  in  the 
withdrawal  of  several  members  of  the  firm 
from  the  contract,  and  the  individual  con- 
sented to  its  continuance  by  the  remain- 
der in  an  action  for  wages  by  the  latter,  it 
was  sufficient  to  show  as  against  a  motion 
for  non-suit  on  the  ground  that  the  first 
contract  had  not  been  abrogated  by  the 
parties,  that  there  had  been  an  abandon- 
ment of  the  first  contract  by  those  who  re- 
fused to  continue  so  that  the  remainder 
were  not  prevented  from  making  a  new 
contract — Anderson  v.  McDonald,  31  Wash. 
274,    71    Pac.    1037. 

58.  Defendant  cannot  be  held  to  pay  a 
specified  compensation  for  services  where  no 
promise  is  show^n  to  any  other  p.irty  to  pay 
such  compensation — Dudley  v.  Sanders  Mfg. 
Co.,    114    Fed.    981. 

59.  Truitt  v.  Fahey,  3  Pen.  (Del.)  573; 
Raymond  v.  Yarrington  (Tex.  Civ.  App.)  69 
S.    W.    436. 

60.  Nesblt  V.  Jencks,  81  App.  Div.  (N. 
Y.)    140. 

CI. 
S70. 


Chadd  V.  Moser,  25  Utah,  369,  71  Pac. 
Patton    V.    Wells    (C.    C.    A.)    121    Fed. 


(•2. 

337. 

63.  Smith  v.  Bank  of  New  England  (N. 
H.)    54    Atl.    385. 

64.  Patton  v.  Wells  (C.  C.  A.)  121  Fed. 
337. 

65.  The  evidence  of  the  wife  was  intro- 
duced in  violation  of  Code  Civ.  Proc.  subd. 
1.  §  1881,  and  her  testimony  was  afterward 
stricken  out  by  the  court  leaving  the  let- 
ter unsupported  by  any  evidence — Metz  v. 
Bell.  137  Cal.  xix,  70  Pac.   618. 

66.  Schultze  V.  Goodstein,  82  App.  Div. 
(N.    Y.)    316. 

67.  Greene  v.   McDonald,   75   Vt.    93. 


§  lOJ 


QUESTIONS  OF  FACT, 


701 


eral  conversations  between  the  parties  about  the  affairs  of  the  bank  and  not  tend- 
ing to  show  that  the  cashier  intended  to  bind  himself  to  divide  any  surplus  aris- 
ing is  insufficient  to  show  contract  for  division  of  the  profits.®^ 

(§  10)  J.  Questions  of  law  and  fact.^^ — If  the  explanation  of  a  contract  re- 
quires extrinsic  evidence,  its  construction  in  view  of  such  evidence  is  for  the  jury.'^^ 
The  existence  of  a  contract  from  conflicting  evidence,  partly  parol  and  partly 
documentary,"  the  intention  of  the  parties  as  to  the  terms  of  a  contract,^^  the 
acceptance  of  an  order  for  sale  of  machinery,''^  the  question  of  consideration/* 
the  compromise  of  a  doubtful  claim  where  one  of  the  parties  has  given  his  note 
for  such  claim,^'  whether  the  parties  were  justified  in  terminating  a  contract  for 
failure  in  performance,'"  whether  a  written  contract  was  procured  by  fraud  and 
misrepresentation,^^  whether  writings  purporting  to  contain  a  contract  were  signed 
by  the  parties  and  if  signed  whether  they  were  delivered,^^  whether  a  contract 
expressly  providing  remuneration  to  plaintiff  for  time  and  services,  while  acting 
as  director  and  officer  of  a  bank,  was  made,''^  whether  a  contract  under  which 
illegal  acts  were  done  was  entered  into  in  contemplation  of  the  performance  of  such 
illegal  acts,®"  the  character  of  a  contract  as  a  loan  or  a  sale  where  the  pleadings 
raise  the  issue, **^  the  character  of  an  agreement,  whether  conditional  or  uncondi- 


68.  Patton  V.  Wells  (C.  C.  A.)  121  Fed. 
337. 

69.  Sufficiency  of  evidence  to  warrant  di- 
rection of  verdict  for  plaintiff — Knowlson 
V.  Piehl  (Mich.)  90  N.  W.  415.  In  an  action 
on  a  contract  for  resale  of  property  to  car- 
ry to  the  jury  the  question  whether  de- 
fendant elected  to  take  the  notes  of  the 
purchaser  as  assets  of  his  own,  so  as  to 
render  him  liable  to  the  seller — Rogers- 
Ruger  Co.  v.  McCord,  115  Wis.  261.  Right 
of  plaintiff  suing  on  written  contract  to 
have  question  of  liability  of  defendant  on 
an  Implied  contract  submitted  to  the  jury 
after  voluntary  nonsuit — Koffman  v.  South- 
west Missouri  Elec.  Ry.  Co.,  95  Mo.  App. 
459.  Where  correspondence  between  cer- 
tain persons  Introduced  in  evidence  clearly 
shows  a  contract  for  services  by  plaintiff 
for  certain  compensation,  such  issue  could 
not  be  submitted  to  the  jury  to  be  settled 
In  connection  with  a  subsequent  agreement 
regarding  the  same  services  made  after 
breach  of  the  first  contract  by  the  defend- 
ants as  shown  by  their  own  evidence — Rob- 
erts v.  Pacific  &  A.  Ry.  &  Nav.  Co.  (C.  C. 
A.)  121  Fed.  785.  The  question  whether  an 
architect  had  ordered  a  change  in  plans 
for  a  building  involving  extra  expense,  is 
for  the  jury,  where  there  was  evidence 
that  he  made  such  change  for  his  own  bene- 
fit and  made  no  extra  charge  therefor,  that 
he  denied  having  ordered  the  change,  and 
testimony  w^as  contradicted  though  there 
was  no  evidence  of  an  agreement  between 
the  parties  as  to  price  of  such  work — Es- 
sex v.  Murray  (Tex.  Civ.  App.)  68  S.  W. 
736.  The  determination  of  an  expert  as  to 
whether  he  could  be  of  service  to  one  who 
wished  him  to  furnish  an  affidavit,  was  not 
conclusive  upon  the  other  party,  and  wheth- 
er his  affidavit  so  furnished  was  service- 
able was  a  question  of  fact — Rosewater  v. 
Glen   Tel.   Co.,   81    App.    Div.    (N.   Y.)    275. 

70.  Haskell  v.  Read  (Neb.)  93  N.  W.  997; 
Dillon   V.   Watson    (Neb.)    92   N.    W.    156. 

71.  If  a  contract  is  to  be  made  out 
partly  by  correspondence  and  partly  by  evi- 


dence of  conversations,  as  to  the  exact 
statements  of  which  and  as  to  the  circum- 
stances under  which  the  conversation  was 
uttered,  there  is  conflicting  evidence,  the 
question  as  to  whether  a  contract  existed 
as  well  as  what  it  was,  is  for  the  jury — 
Telluride  Power  Transmission  Co.  v.  Crane 
Co..    103    111.    App.    647. 

72.  Clark  v.  Shannon,  117  Iowa,  645.  In 
an  action  on  a  contract  for  the  harvesting 
of  grain  to  recover  for  loss  of  grain  re- 
sulting from  high  winds  during  a  delay 
in  the  performance  of  the  contract,  the 
question  whether  the  high  winds  were  con- 
templated by  the  parties  when  the  con- 
tract was  made,  is  for  the  jury — Holt  Mfg. 
Co.  V.  Thornton,  136  Cal.  232,  68  Pac.  708. 
Whether  a  word  used  in  a  written  con- 
tract is  so  used  in  a  technical  sense  more 
comprehensive  than  its  ordinary  meaning, 
is  for  the  jury — Butte  &  B.  Consol.  Min.  Co. 
V.  Montana  Ore  Purchasing  Co.  (C.  C.  A.) 
121   Fed.   524. 

73.  Elfring  v.  New  Birdsall  Co.  (S.  D.) 
92  N.   W.    29. 

74.  Missouri,  K.  &  T.  R.  Co.  v.  Carter, 
95  Tex.   461. 

7.5.  Scliool  Dist.  of  Barnard  v.  Matherly. 
90    Mo.    App.    403. 

76.  Lincoln  v.  Orthwein  (C.  C.  A.)  120 
Fed.  880.  Contract  between  building  con- 
tractors and  manufacturer  of  materials  lim- 
iting performance  to  a  certain  date  and  pro- 
viding that  if  materials  were  not  furnished 
by  that  time,  the  contractors  after  giving 
five  days'  notice  might  purchase  elsewhere, 
when  there  was  a  delay  in  providing  ma- 
terials and  proper  notice  was  given — Chris- 
topher, etc..  Foundry  Co.  v.  Yeager,  202  111. 
486. 

77.  Guilford  v.   Mason,   24   R.  I.   386. 

78.  Telluride  Power  Transmission  Co.  v. 
Crane    Co.,    103    111.    App.    647. 

79.  Patton  v.  Wells  (C.  C.  A.)  121  Fed. 
337. 

80.  Lytle  v.  Newell,  24  Ky.  L.  R.  188,  68 
S.  W.   118. 

81.  Martin  v.   Dowd    (Idaho)    69   Pac.    276. 


702 


CONTRACTS. 


8  10J 


tional,  and  the  waiver  or  fuliillraent  of  conditions,^*  the  existence  of  an  indebted- 
ness under  a  contract,®^  performance"^*  or  repudiation,*^  the  reasonable  time  for 
performance  of  a  contract,*®  or  for  acceptance  of  goods  under  the  terms  of  the 
contract,*^  or  for  termination  of  a  contract  by  one  of  the  parties  under  its  terms;*' 
all  these  are  questions  for  the  jury.  Words  in  a  contract  relating  to  tools  to  be 
used  in  a  particular  class  of  work  are  to  be  construed  by  the  jury  in  the  view  of 
competent  expert  testimony.*^ 

The  court  must  settle  the  sufficiency  of  writings  to  constitute  a  contract 
whether  made  by  commercial  correspondence  or  formal  documents.®"  The  court 
and  not  the  jury  should  construe  a  contract,"^  with  a  view  to  finding  the  intention 
of  the  parties/^  as  to  the  real  object  of  the  parties  in  its  execution,®^  or  as  to  its 
legal  effect,  there  being  no  fraud  or  mistake.®*  The  amount  of  compensation 
due  cannot  be  left  to  the  jury  when  the  evidence  shows  it  to  be  a  sum  certain.®'* 
Wliere  a  contract  gave  no  time  in  which  rights  thereunder  must  be  exercised, 
the  reasonableness  of  the  time  within  which  a  demand  was  made  was  for  the 
court.®°  Whether  an  offer  of  rescission  is  made  within  a  reasonable  time  is  a 
mixed  question  of  law  and  fact.®^ 

The  construction  of  a  contract  with  regard  to  certain  words  which  appeared 
to  be  ambiguous  must  be  determined  by  the  court  as  a  question  of  law,  and  if 
under  its  determination  the  words  are  not  ambiguous,  parol  evidence  cannot  be 


82.  Jewell  V.  Posey  (Iowa)  93  N.  W. 
379.  The  question  whether  there  had  been 
a  waiver  of  a  requirement  in  the  specifica- 
tions of  a  building  contract  as  shown  by 
conversation  between  the  parties,  is  for  the 
jury — "Woarms  v.  Becker,  84  App.  Div.  (N. 
Y.)  491.  "Whether  a  provision  in  a  build- 
ing contract  requiring  alterations  or  addi- 
tions to  be  expressed  in  writing  has  been 
waived  by  one  of  the  parties,  is  for  the 
jury — Copeland    v.    Hewett,    96    Me.    525. 

83.  Greene    v.    McDonald,    75   Vt.    93. 

84.  Patton  V.  Wells  (C.  C.  A.)  121  Fed. 
337;  Gunther  v.  Gunther,  181  Mass.  217.  In 
an  action  on  a  contract  to  recover  the 
balance  of  compensation  agreed  to  be  paid 
for  theatrical  exhibitions  where  the  de- 
fense is  that  the  performances  failed  to 
comply  with  the  contract,  the  question  of 
proper  performance  is  for  the  jury — Charley 
V.  PotthofC  (Wis.)  95  N.  W.  124.  In  an 
action  to  recover  for  the  performance  of  a 
surgical  operation,  the  question  as  to  wheth- 
er the  plaintiffs  gave  proper  and  reasonable 
care  to  the  patient,  is  for  the  jury — Seabrook 
V.  Orto.  70  Ark.  503.  The  question  as  to 
which  of  two  parties  had  refused  to  per- 
form a  contract  for  personal  services,  where 
both  parties  alleged  readiness  to  perform, 
is  for  the  jury — Kochmann  v.  Baumeister, 
73  App.  Div.  (N.  Y.)  309.  The  question  of 
reasonable  performance  of  a  contract  with- 
in its  fair  intent,  where  it  has  not  been 
performed  exactly  to  the  letter,  is  for  the 
jury — Drew  v.  Goodhue,  74  Vt.  436.  The 
question  of  substantial  performance  of  a 
contract  is  for  the  jury — Pitcairn  v.  Philip 
Hiss   Co.    (C.   C.  A.)    113   Fed.    492. 

85.  Gunther  v.  Gunther,  181   Mass.  217. 

86.  Los  Angeles  Traction  Co.  v.  Wilshlre, 
135    Cal.    654,    67    Pac.    1086. 

87.  In  an  action  on  a  contract  for  manu- 
facture of  certain  goods  to  be  accepted 
within  a  reasonable  time — Bowen  v.  Young, 
37   Misc.    (N.    Y.)    547. 


88.  E.  H.  Taylor,  Jr.,  &  Sons  v.  Louis- 
ville Public  Warehouse  Co.,  24  Ky.  L.  R. 
1656,   72   S.   W.   20. 

89.  Glenn  v.  Strickland,  21  Pa.  Super.  Ct. 
88. 

90.  Telluride  Power  Transmission  Co.  v. 
Crane  Co.,  103  111.  App.  647.  The  effect  of 
letters  containing  tlie  proposal  and  accept- 
ance of  a  contract — Lost  Lake  Lumber  Co. 
V.   Smith,   29   Wash.   713,   70  Pac.   134. 

91.  Hinman  v.  F.  C.  Austin  Mfg.  Co.  (Neb.) 
90  N.  W.  934;  Grasmier  v.  Wolf  (Iowa)  90 
N.  "SV.  813;  Foster  v.  Chicago,  197  111.  264; 
Bullock-McCall-McDonnell  Elec.  Co.  v.  Cole- 
man, 136  Ala.  610.  Building  contract  incon- 
sistent and  contradictory  in  its  provisions 
— Keefer  v.  Sunbury  School  Dist.,  203  Pa. 
334.  A  written  contract  subsequently  signed 
governing  a  shipping  contract  previously 
.agreed  upon  by  the  parties — Ft.  Worth  & 
D.  C.  Ry.  Co.  V.  Wright  (Tex.  Civ.  App.)  70 
S.  W.  335.  This  is  true  of  a  written  con- 
tract though  the  language  is  so  plain  as 
not  to  require  explanation  of  the  extrinsic 
evidence — Davis  v.  Bowers  Granite  Co.  (Vt.) 
54   Atl.    1084. 

92.  Sexton  V.   Barrie,  102  111.  App.   586. 

93.  Pease  v.  Rand  &  L.  Desk  Co.,  100  111. 
App.    244. 

94.  Hughes  v.  Rudy,   15  S.  D.   460. 

95.  Where  the  testimony  of  plaintiff  in 
an  action  for  services,  showed  that  he  was 
to  be  paid  separate  amounts  for  each  of 
two  particular  kinds  of  services  if  required 
to  perform  both,  and  that  he  never  per- 
formed but  one  of  them,  the  liability  on 
which  was  admitted  by  defendant,  the  ques- 
tion as  to  the  amount  he  is  entitled  to  re- 
cover, cannot  be  left  to  the  jury — Plass  v. 
Weil,    81    N.    Y.    Supp.    299. 

96.  Loeb   V.    Stern,    198   111.    371. 

97.  Meyer  v.  Flshburn  (Neb.)  91  N.  W. 
534. 


lOK 


INSTRUCTIONS. 


703 


admitted  to  show  the  construction  of  either  party  so  as  to  vary  or  contradict 
such  meaning,  though  the  court  may  properly  hear  parol  evidence  of  the  col- 
lateral facts  and  circumstances  to  determine  the  true  meaning  of  the  words;  but 
on  the  other  hand,  when  testimony  of  a  contradictory  character  is  admitted  to 
show  tli«  meaning  of  such  words,  the  question  is  for  the  jury,  and  plaintiff  must 
establish  the  meaning  he  asserts  by  the  weight  of  his  evidence.^* 

(§10)  K.  Instructions.^^ — The  jury  may  be  charged  on  the  legal  effect  of  a 
contract  in  an  action  thereon.^  Where  a  joint  liability  of  parties,  sued  jointly  on  a 
contract,  is  shown  by  the  evidence,  the  jury  cannot  be  instructed  that  finding  may 
be  had  against  one  or  all.^  A  general  charge  cannot  be  given  for  plaintitf 
where  the  evidence  as  to  performance  in  accordance  with  the  contract  is  conflict- 
ing.^ Where  a  contract  was  made  in  consideration  of  certain  acts  of  plaintiff, 
and  it  appears  that  such  acts  constituting  the  consideration  had  been  performed 
before  the  making  of  the  contract,  it  was  proper  to  instruct  that  there  was  no 
consideration.*  An  instruction,  in  an  action  on  a  written  contract  for  payment 
of  one-half  of  certain  claims  when  collected,  that  plaintiff  must  recover  on 
any  claims  collected  less  expense,  is  incorrect  as  ignoring  the  terms  of  the  con- 
tract.® Where,  in  an  action  for  damages  because  of  a  breach  of  a  contract,  defend- 
ant's only  request  was  that  the  jury  allow  nominal  damages  only,  the  court  was 
not  required  to  instruct  more  fully  than  that  the  jury  should  award  such  dam- 
ages as  would  compensate  the  plaintiff  for  the  loss  resulting  from  the  failure  of 
the  plaintiff  to  perform.®     An  instruction  in  an  action  on  an  entire  contract  for 


98.  Cameron  Milling-  &  Elevator  Co.  v. 
Orthwein    (C.    C.    A.)    120    Fed.    468. 

99.  An  instruction  in  an  action  to  re- 
cover the  balance  due  for  threshing  grain, 
mortgaged  to  the  defendant,  limiting  de- 
fendant's creditors  to  a  certain  amount 
virhen  his  mortgagor  had  paid  the  plaintiffs' 
an  additional  amount  to  be  applied  on  the 
threshing,  was  correct  where  plaintiffs'  evi- 
dence showed  clearly  that  the  latter  amount 
was  applied  to  payment  of  an  account  for 
threshing  other  grain — Hill  Bros.  v.  Bank 
of  Seneca  (Mo.  App.)  73  S.  W.  307.  Where 
certain  whiskey  was  deposited  in  a  ware- 
house under  a  contract  whereby  it  was  to 
be  held  for  a  certain  charge  per  barrel,  per 
month,  and  loans  to  be  secured  thereon  and 
renewed  at  a  certain  amount  so  long  as 
it  remained  in  the  warehouse,  but  the  ware- 
housemen failed  to  renew^  the  loans  and 
forced  the  sale  of  the  whiskey  at  a  loss,  an 
instruction  in  an  action  for  the  breach,  that 
if  the  warehousemen  gave  the  owner  rea- 
sonable notice  that  the  loan  would  not  be 
renewed,  then  the  jury  should  find  only  the 
amount  the  owner  would  have  been  com- 
pelled to  pay  to  carry  the  loan  without  the 
w^arehousemen's  assistance,  was  incorrect 
in  its  application  to  the  facts — E.  H.  Tay- 
lor, Jr.,  &  Sons  V.  Louisville  Public  Ware- 
house  Co.,    24   Ky.  L,.   R.    1656.   72    S.   W.    20. 

Building  and  construction  contracts.  Suf- 
ficiency of  instructions  in  an  action  by  con- 
tractors for  breach  of  building  contract — 
McClellan  v.  McLemore  (Tex.  Civ.  App.) 
70  S.  W.  224.  Where  in  an  action  for 
breach  of  a  building  contract,  the  court 
instructed  that  if  the  jury  would  find  that 
plaintiff  believed  contract  to  be  on  certain 
basis,  and  defendant  believed  it  to  be  on 
a  certain  other  basis,  their  minds  did  not 
mpet  so  as  to  make  a  contract,  and  plain- 
tiff   could    recover    what    his    services    were 


reasonably  worth,  was  proper  as  In  effect 
instructing  the  jury  that  If  the  parties  did 
not  come  to  an  agreement  there  was  no 
special  contract — Burton  v.  Rosemary  Mfg. 
Co..  132  N.  C.  17.  Where  a  contract  for  fur- 
nishing building  materials  provided  that  if 
there  were  delays  in  the  furnishing,  ma- 
terials might  be  procured  elsewhere  and 
charged  to  the  seller,  an  instruction  on  the 
question  whether  the  purchasers  could  bind 
the  seller  by  contract  for  heavier  materials 
in  case  of  delay,  was  properly  refused  where 
the  court  had  instructed  that  they  would 
have  no  right  to  charge  the  seller  with  addi- 
tional cost  owing  to  change  in  the  size  and 
weights  of  materials — Christopher,  etc.. 
Foundry  Co.  v.  Yeager,  202  111.  486.  Where 
a  contract  for  labor  was  rescinded  after 
partial  performance  and  a  new  one  made 
providing  that  work  should  be  paid  for  at 
a  certain  rate  under  both  contracts,  evidence 
that  the  employer  told  the  laborers  after 
commencing  work  under  the  nev/  contract, 
that  he  was  in  charge  of  the  work  and  that 
there  was  nothing  more  for  them  to  do, 
is  sufficient  on  which  to  found  an  instruc- 
tion in  an  action  against  him  for  wages 
that  if  he  refused  to  permit  the  laborers 
to  proceed,  a  verdict  should  be  found  against 
him  for  work  under  both  contracts — Ander- 
son V.  McDonald.  31  Wash.  274,  71  Pac.  1037. 

1.  Ash  V.   Beck   (Tex.  Civ.  App.)    68  S.  W. 
53. 

2.  Sutherland    v.    HoUiday    (Neb.)    90    N. 
W.    937. 

S.     Special    building    contract — Aarnes    v. 
Windham    (Ala.)    34    So.    816. 

4.  Nesbit  V.   Jencks.   81  App.  Div.    (N.  Y.) 
140. 

5.  Brewer  v.   Swartz,   94  Mo.   App.   392. 

6.  Anderson  Carriage  Co.  v.  Pungs  (Mich.) 
96    N.    W.    563. 


704 


CONTRIBUTION. 


§2 


construction  that  the  presence  of  defective  material  will  not  prevent  recovery  if 
the  contract  is  "otherwise"  substantially  performed  takes  from  the  jury  the  ques- 
tion whether  the  entire  contract  has  been  substantially  performed.'' 

(§  10)  L.  Verdict  and  findings;  judgment. — A  finding  against  one  of  several 
defendants  will  not  be  supported  by  evidence  of  joint  liability  on  a  contract.^  A  find- 
ing that  a  subsequent  agreement  for  notice  of  completion  of  a  written  contract  had 
no  effect  on  the  contract  and  that  the  rights  of  the  parties  were  deducible  from 
the  latter  means  that  no  legal  liability  under  the  requirement  of  notice  was 
intended  in  making  the  contract.*  A  finding  that  before  plaintiff  accepted  a 
proposition  for  settlement  pursuant  thereto,  defendant  stated  to  the  plaintiff  how 
much  was  due,  which  representations  were  not  true  though  relied  upon  by  plain- 
tiff who  was  ignorant  of  the  facts,  did  not  amount  to  a  finding  that  defendant's 
representations  were  made  with  knowledge  that  they  were  untrue  and  with  intent 
that  they  should  be  acted  on  by  plaintiff  and  that  he  did  so  act  thereon.^"  After 
verdict  for  plaintiff  in  a  suit  for  specific  performance  of  a  contract  for  recon- 
veyance of  realty  on  termination  of  insanity  proceedings,  the  plaintiff  cannot  move 
to  set  aside  the  verdict  because  the  contract  was  illegal  as  entered  into  by  the 
parties  to  annul  the  court's  action  in  lunacy  proceedings.^^  Where  a  contract  is 
substantially  but  not  fully  performed  at  the  time  of  bringing  suit  thereon  but 
plaintiffs  thereto  complete  it  to  the  letter,  the  judgment  cannot  include  the  value 
of  work  done  after  the  action  was  brought.^^  Where,  in  an  action  on  a  contract, 
the  complaint  was  allowed  to  be  amended  to  conform  to  the  proof  of  substantial 
instead  of  full  performance,  and  plaintiff  was  aided  in  his  defect  of  proof  by 
defendant's  evidence,  the  court  could  properly  make  up  the  judgment."  Where  it 
is  alleged  in  a  complaint  that  a  third  person  was  indebted  by  a  note  to  plaintiff 
and  that  defendant  indorsed  on  the  note  an  agreement  to  pay  it  when  a  mortgage 
by  the  maker  was  fully  paid,  and  that  such  mortgage  was  foreclosed  and  proved 
insufficient  to  pay  all  the  debts  of  the  mortgagee,  a  judgment  for  plaintiff  for  his 
pro  rata  share  of  the  sum  realized  on  the  mortgage  was  proper.^* 

CONTRIBUTION. 

§  1.  General  principles. — Infants  as  well  as  adults  are  liable  to  contribu- 
tion.^ One  liable  only  for  his  share  cannot  pay  more  and  enforce  contribution 
unless  common  property  is  thereby  protected.'^ 

§  2,  As  between  persons  in  particular  relations. — A  tenant  in  common  is 
entitled  to  contribution  from  his  co-tenants  if  he  pay  more  than  his  share  for  the 
benefit  of  the  common  property.^ 


7.  Pitcalrn   v.    Philip  Hiss   Co.    (C.   C.    A.) 
113    Fed.    492. 

8.  Sutherland    v.    Holliday     (Neb.)     90    N. 
yf.    937. 

0. 
10 
151. 
11, 
12. 
13 


Drew   V.    Goodhue,    74    Vt.    436. 
Spier    V.    Hyde,    78    App.    Div.    (N.    T.) 


Lee   V.   Lee.    40  Misc.    (N.    Y.)    251. 
Drew  V.  Goodhue,   74  Vt.   436. 
Niemeyer   v.   Woods,    72   App.  Div.    (N. 
Y.)    630. 

14.     Gorman  v.  Lamb  (Minn.)  94  N.  W.  435. 

1,  Tenants    In    common — discharge    of   in- 
cumbrance— Case  V.  Case,  103  111.  App.  177. 

2.  McArthur    v.    Board    (Iowa)    93    N.    W. 
580. 


3.  Taxes — McClintock  v.  Fontaine,  li9 
Fed.  448;  Arthur  v.  Arthur,  76  App.  Div.  (N. 
Y.)  330.  But  one  of  several  remaindermen 
who  has  leased  the  property  from  the  life 
tenant  cannot  recover  from  his  fellows  on 
account  of  taxes  paid — Downey  v.  Strouse 
(Va.)  43  S.  E.  348.  Discharge  of  incum- 
brance— Grove  v.  Grove  (Va.)  42  S.  E.  312. 
Extinguishment  of  adverse  claim — McClin- 
tock V.  Fontaine,  119  Fed.  448;  Case  v.  Case, 
103  111.  App.  177.  The  right  to  contribu- 
tion for  excess  payment  on  purchase  price 
does  not  accrue  until  partition — Grove  v. 
Grove  (Va.)  42  S.  E.  312.  For  expenditure 
after  the  co-tenant's  death,  the  claim  is 
against  the  heirs,  not  against  the  estate — 
De  Grange  v.  De  Grange,  96  Md.  609. 


§  1 


CONVERSION    AS    TORT. 


705 


As  between  co-sureties  indemnity  given  by  the  principal  to  one  accrues  to 
all.*     Between  joint  tort  feasors  there  is  no  contribution  except  by  statute.* 

§  3.  Proceedings  to  enforce. — Statutory  remedies  are  usually  regarded  as 
cumulative.'  Contribution  may  be  granted  in  connection  with  other  relief.^  All 
persons  from  whom  contribution  is  sought  should  be  joined.®  Indemnity  shoiJd 
be  first  exliausted." 

CONVERSION  AS  TORT. 

§  1.  What  constitutes}'* — Wrongful  assumption  of  dominion,  such  as  refusal 
of  landlord  to  allow  tenant  to  remove  his  chattels/^  wrongful  removal  of  soil  from 
plaintiff's  land/*  refusal  by  an  owner  to  allow  unused  materials  to  be  removed  on 
rescission  of  an  agreement  between  contractor  and  materialman  for  their  pur- 
chase/' a  wrongful  levy  though  without  removal  or  sale/*  refusal  by  a  corporation 
to  transfer  stock  to  a  purchaser  on  its  books/"  constitutes  a  conversion,  and  guilty 
intent  is  essential  only  when  the  taking  is  otherwise  rightful,^"  but  a  mere  asser- 
tion of  title  by  defendant,  a  bailee,  in  his  answer,"  abatement  of  a  nuisance  erected 
on  defendant's  land,^*  failure  to  pay  for  goods  bought  on  credit,  is  not  conver- 
sion,^'' or  refusal  to  surrender  property  to  the  owner  without  production  of  a  re- 
ceipt which  defendant  had  given  therefor  to  the  owner's  bailee  is  not,^**  and  a  re- 
scission of  a  trade  for  fraud  and  taking  back  of  the  goods  given  in  trade  two  days 
before  putting  the  other  party  in  statu  quo  is  at  most  a  technical  conversion.*^ 

Consent  of  the  owner  is  a  defense.**  Wrongful  dealing  with  goods  rightfully 
in  possession  may  constitute  a  conversion.*' 


\ 


4.  Barker  v.    Boyd.   24   Ky.   L..   R.    1389,   71 

S.  W.  528.     Bvit  see  McDowell  County  Com'rs 
V.   Nichols,    131   N.   C.    501. 

5.  Code  Civ.  Proc.  §  480  as  to  Joint  Judg- 
ment debtors  allows  contribution  in  case  of 
judgment  for  tort  and  the  statute  has  been 
held  constitutional — City  of  Ft.  Scott  v. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  (Kan.)  72 
Pac.    238. 

O.  The  legal  remedy  given  by  Rev.  St. 
1899,  8  4504  does  not  exclude  a  suit  in 
equity — Dysart  v.  Crow,  170  Mo.  275.  The 
requirements  of  a  statutory  proceeding  need 
not  be  observed  if  plaintiff  elects  to  sue  in 
equity — City  of  Ft.  Scott  v.  Kansas  City, 
Ft.   S.   &   M.   R.   Co.    (Kan.)    72  Pac.   238. 

7.  A  claim  by  a  tenant  In  common  for 
contribution  may  be  adjudicated  in  a  par- 
tition suit — McClintock  v.  Fontaine,  119  Fed. 
448. 

8.  A  surety  who  has  paid  his  contribu- 
tive  share  need  not  be  joined. — Dysart  v. 
Crow,   170  Mo.    275. 

0.  The  administrator  of  a  deceased  surety 
need  not  first  resort  to  a  mortgage  de- 
fective in  having  been  made  to  the  surety 
after  his  death — Norwood  v.  Washington, 
136    Ala.    657. 

10.  The  elements  of  conversion  are  (1) 
property  and  right  of  possession  in  plaintiff 
(2)  conversion  of  the  property  by  defend- 
ant to  his  own  use — Boulden  v.  Gough  (Del.) 
54  Atl.  693.  Agents  who  take  goods  In 
transit  to  a  third  party  in  payment  of  a 
Claim  of  their  principai  against  the  ship- 
per are  not  liable  for  a  conversion  of  the 
proceeds  by  the  consignee,  they  never  hav- 
ing had  possession  of  the  goods  or  been 
In  privity  with  one  who  had — Williams  v. 
Fethers,   115  Wis.   314. 

Cur.   Law — 46. 


11.  Smith  V.  Boyle   (Neb.)   92  N.  W.  1018. 

12.  Radway  v.  Duffy,  79  App.  Div.  (N.  Y.) 
116. 

13.  Bartley  v.  Rogers,  104  111.  App.  164. 

14.  Zion  V.  De  Jonge,  115  N.  T.  St.  Rep. 
491. 

l."5.  London,  Paris  &  American  Bank  V. 
Aronstein    (C.  C.   A.)    117  Fed.   601. 

le.  State  v.  Omaha  Nat.  Bank  (Neb.)  93 
N.    W.    319. 

17.  Stoneman  v.  Lyons   (R.  I.)   64  Atl.  46. 

18.  McCarthy  v.  Murphy  (Wis.)  96  N.  W. 
531, 

10.  Carlson  v.  Jordan  (Neb.)  93  N.  W. 
1130. 

30.  Arsene  v.  La  Fermlna,  38  Misc.  (N. 
T.)    776. 

21.  Wilcox  v.  Morten  (Mich.)  92  N.  W. 
777. 

23.  Carlson  v.  Jordan  (Neb.)  93  N.  W. 
1130.  Where  the  owner  consents  that  an 
injured  animal  be  killed,  he  has  no  right 
of  action  if  it  is  sold  to  a  third  person 
instead — Kansas  City,  M.  &  B.  R.  Co.  v. 
Wagand,  134  Ala.  388.  A  remark  by  plain- 
tiff that  he  "might  as  well  swallow"  his 
loss  does  not  waive  a  conversion  accom- 
plished by  obtaining  property  under  false 
pretences — Rogers  v.   Dutton,   182  Mass.   187. 

23.  Bailee:  Allowing  third  person  to 
take  goods  under  pretended  lien — Dixon  v. 
Owens,  21  Pa.  Super.  Ct.  376.  Selling  prop- 
erty to  pay  bailee's  claim  against  bailor — 
Keiner  v.  Folsom,  113  N.  Y.  St.  Rep.  1099. 
Trover  will  not  He  for  conversion  of  money 
entrusted  to  defendant  to  expend  for  plain- 
tiff's use — Larson  v.  Dawson,  24  R.  L  317. 
Factor!  A  factor  selling  in  good  faith 
goods  to  which  his  principal  has  no  title 
Is   liable   In   conversion — Johnson  v.   Martin, 


706 


CONVERSION   AS   TORT. 


§2 


Demand  is  necessary  where  defendant's  possession  was  originally  lawful,"  but 
not  where  there  has  been  actual  wrongful  conversion,^^  or  where  delivery  is  impos- 
sible.-' 

§  2.  Remedies  and  procedure. — The  action  is  barred  in  three  years  in  Cali- 
fornia."^ 

The  action  is  transitory.^* 

A  special  property  in  plaintiff  is  sufficient.^'  "WTiere  plaintiff  sells  the  prop- 
erty pending  suit  he  may  continue  the  action  for  the  benefit  of  his  vendee.*"  A 
statutory  seller's  lien  on  chattels  gives  no  right  to  sue  assignees  of  the  buyer  for 
conversion.'^ 

The  sufficiency  of  the  complaint  or  declaration,'^  the  admissibility  of  evi- 
dence,'' and  the  sufficiency  thereof  are  treated  in  the  notes.'* 

The  measure  of  damages  is  the  value  of  the  property  at  the  time  of  conver- 
sion, with  interest."^  Punitive  damages  are  allowed  where  plaintiff's  rights  were 
willfully  disregarded,'" 


87  Minn.  370;  Flannery  v.  Harley  (Ga.)  43 
S.  E.  765.  Currier:  Misdelivery  of  goods 
is  a  conversion — Security  Trust  Co.  v.  Wells, 
Fargo  &  Co.  Exp.,  81  App.  Div.  (N.  Y.) 
426.  But  mere  delay  In  forwarding  is  not 
— Spalding  v.  Chicago,  B.  &  Q.  R.  Co.  (Mo; 
App.)  73  S.  TV.  274.  Pledgee:  Any  dealing 
with  a  pledge  inconsistent  with  the  pledg- 
or's rights  renders  the  pledgee  liable  in 
conversion — Schaaf  v.  Fries,  90  Mo.  App.  111. 
Purchase  of  property  by  the  pledgee  at  an 
unauthorized  sale  is  not  a  conversion — 
Winchester  v.  Joslyn  (Colo.)  72  Pac.  1079. 
Warehouseman:  Misdelivery  by  •warehouse- 
man is  a  conversion — Brink's  Chicago  City 
Exp.  Co.  V.  Hendricks,  104  111.  App.  154; 
Wheeler  &  W.  Mfg.  Co.  v.  Brookfield,  68 
N.  J.  Law,  478.  Trustee;  Conversion  by 
trustee — Canfield  v.  Canfield  (C.  C.  A.)  118 
Fed.  1;  Loetscher  v.  Dillon  (Iowa)  93  N. 
W.  98;  Hart's  Estate,  203  Pa,  488. 

24.  Sehnert  v.  Koenig,  99  111.  App.  513; 
J.  L.  Mott  Iron  Works  v.  Reilly,  115  N.  Y. 
St.  Rep.  323;  Temple  Co.  v.  Penn  Mut.  Life 
Ins.  Co.  (N.  J.  Sup.)   54  Atl.  295. 

25.  Gross  v.   Scheel    (Neb.)    93   N.    W.   418. 

26.  Freehill    v.    Hueni,    103    111.    App.    118. 

27.  Lowe  V.  Ozmun,  137  Cal.  257,  70  Pac. 
87. 

28.  Kryn  v.  Kahn  (N.  J.  Sup.)  54  Atl.  870. 

29.  Sheriff  holding  under  attachment — 
Rochester  Lumber  Co.  v.  Locke  (N.  H.)  54 
Atl.    705. 

30.  McElmurray  v.  Harris  (Ga.)  43  S.  B. 
987. 

31.  Thornton  v.  Dwlght  Mfg.  Co.  (Ala.) 
34    So.   187. 

32.  Complaint  held  to  sufficiently  describe 
property  (mine  tailings) — Stanley  v.  Sierra 
Nevada  Silver  Min.  Co.,  118  Fed.  931;  (logs) 
Eastern  Mfg.  Co.  v.  Camden  Lumber  Co., 
96  Me.  537.  Averment  that  defendant  con- 
verted the  property  to  his  own  use  Is  not 
a  mere  conclusion  of  law — Lowe  v.  Ozmun, 
137  Cal.  257,  70  Pac.  87.  Averment  of  plain- 
tiff's title  held  sufficient — Lowe  v.  Ozmun, 
137  Cal.  257,  70  Pac.  87;  Stanley  v.  Sierra  Ne- 
vada Silver  Min.  Co.,  118  Fed.  931;  Northness 
V.  Hillestad,  87  Minn.  304.  Variance:  If  de- 
fendant's answer  justifies  under  an  instru- 
ment as  a  chattel  mortgage  he  cannot  later 


assert  It  to  be  a  conditional  sale — Bower  v. 
Bower,  97  Mo.  App.  674. 

33.  Evidence  that  defendant  was  indebt- 
ed to  plaintiff  improper — Barrett  v.  Bruffee, 
182  Mass.  229.  Lavish  expenditure  by  al- 
leged embezzler  and  decreasB  of  employer's 
profits  may  be  shown — Adams  v.  Elseffer 
(Mich.)  92  N.  W.  772.  Admissibility  of  evi- 
dence: Tax  deeds  to  land  from  which  tim- 
ber w^as  cut  admissible  for  plaintiff — ^Ander- 
son  v.   Besser    (Mich.)    91   N.   W.    737. 

34.  Where  plaintiff  has  once  sold  the 
property  to  defendant  the  burden  is  on 
him  to  show  title — Gam  v.  Cordrey  (Del.) 
53  Atl.  334.  Evidence  insufficient.  Two  wit- 
nesses against  one  as  to  demand — Blumen- 
thal  v.  Lewy.  82  App.  Div.  (N.  Y.)  535.  Evi- 
dence sufficient — Flour  City  Nat.  Bank  v. 
Boyer  (Minn.)  94  N.  W.  557.  As  to  plain- 
tiff's ownership — Guernsey  v.  Fulmer  (Kan.) 
71  Pac.  578;  Arsene  v.  La  Fermina,  38  Misc. 
(N.  Y.)  776;  Jordan  v.  Coulter  (Wash.)  70 
Pac.  257.  As  to  value  of  property — Liebman 
v.  Abramson,  38  Misc.  (N.  Y.)  807.  As  to 
the  propriety  of  directing  a  verdict — Wallace 
V.  Mallory,  117  Ga.  161;  Rogers  v.  Dutton.  182 
Mass.  187.  Testimony  that  property  was 
"sold"  to  defendant  sufficiently  shows  as- 
sumption of  ownership  by  him — Woods  v. 
Rose,  135  Ala.  297. 

35.  Janeway  v.  Burton,  201  111.  78;  Daugh- 
erty  v.  Lady  (Tex.  Civ.  App.)  73  S.  W.  837; 
Midville,    S.    &    R.    B.    R.    Co.    v.    Bruhl    (Ga.) 

43  S.   E.   717;  Washburn  v.   Dannenber   (Ga.) 

44  S.  E.  97.  In  case  of  conversion  of  coal 
by  a  carrier  the  value  at  destination  is  the 
measure  of  damages — Blackmer  v.  Cleve- 
land, C,  C.  &  St.  L.  Ry.  Co.  (Mo.  App.) 
73  S.  W.  913.  In  case  of  conversion  of  a 
house,  the  value  of  the  materials — Lynch  v. 
White  (Tex.  Civ.  App.)  73  S.  W.  834;  An- 
derson  v.  Besser  (Mich.)  91  N.  W.  737.  If 
other  remedies  are  waived  by  bringing  tro- 
ver the  measure  of  damages  in  trover  ap- 
plies though  greater  damages  might  be  re- 
covered in  another  action — Id.  The  price 
a  third  person  agreed  to  pay  Is  no  evi- 
dence of  value — J.  L.  Mott  Iron  Works  v. 
Reilly,  115  N.  Y.  St.  Rep.  323.  Attorney's 
fees  are  not  recoverable — Lee  v.  McDonnell 
(Tex.    Civ.   App.)    72    S.    W.    612. 

36.  Blackmer  v.  Cleveland,  C,  C.  &  St,  L. 
Ry.  Co.   (Mo.  App.)   73  S.  W.  913. 


§  3 


CONVERSION    IN    EQUITY. 


707 


CONVEBSION  IN  EQUITY. 

§  1.  Definition  and  nature  of  doctrine. — The  doctrine  of  equitable  conver- 
sion by  a  direction  to  sell  in  a  will  is  applied  mainly  for  the  purpose  of  determining 
succession,^^  and  for  the  purposes  of  the  will  only.** 

§  2.  How  effected.  By  will. — A  devise  to  executors  to  sell,'®  or  to  sell  or 
lease,***  or  invest  the  proceeds  of  the  sale  for  distributive  purposes  operates  as  an 
equitable  conversion  of  the  realty  into  personalty,*^  from  the  time  of  the  testator's 
death,*^  except  where  the  sale  is  postponed  till  after  termination  of  a  life  estate 
devised  when  it  will  operate  from  the  time  of  the  sale,**  but  to  so  operate,  the  direc- 
tion to  sell  must  be  imperative,**  but  after  actual  conversion  by  a  sale  under  a 
discretionary  power  the  proceeds  descend  as  personalty.*"  A  direction  to  sell  re- 
mainder after  termination  of  a  life  estate,  if  the  beneficiaries  refuse  to  take  the 
realty,  is  an  equitable  conversion  thereof  as  to  the  beneficiaries.*®  That  a  conver- 
sion was  intended  may  be  implied  from  the  terms  of  the  will.*^  There  is  no  con- 
version where  the  purpose  of  the  conversion  failed.*® 

By  conveyance  or  contract. — Vendor's  interest  after  contract  of  sale  will  be 
considered  as  personalty  for  the  purpose  of  administering  his  estate.*" 

By  operation  of  law;  judicial  sales  of  property  of  those  not  sui  juris. — K  con- 
version is  not  etlected  by  the  sale  of  realty  by  the  representatives  of  insane  persons^ 
or  infants.'*^ 

§  3.  Reconversion. — A  reconversion  of  lands  ordered  sold  by  testator  may  be 
effected  by  the  beneficiaries  electing  to  take  the  realty ,°^  but  to  so  operate  all  must 
Join  in  the  election.'*'  The  election  may  be  shown  by  acts  in  pais."*  The  dis- 
charge of  the  executor  without  the  exercise  of  the  power  of  sale  will  constitute  an 
election  to  take  the  realty,"^  but  his  mere  delay  will  not  operate  as  a  reconversion."' 


37.  It  cannot  authorize  an  administrator 
with  will  annexed  to  exercise  the  pow^er  of 
sale  under  the  will  without  leave  of  court — 
McElroy  v.  McElroy  (Tenn.)  73  S.  W.  105. 
By  directing  the  conversion  of  realty  into 
personalty  the  property  will  descend  accord- 
ing to  law,  and  the  widow  excluded  by  the 
terms  of  the  will  will  take  her  distributive 
share  under  the  statute — Hutchings  v.  Davis, 
68    Ohio    St.    160. 

38.  A  direction  of  sale  for  the  purpose  of 
paying  gifts  to  legatees  and  the  proceeds 
of  the  sale  cannot  be  considered  personalty 
for  the  benefit  of  the  husband  as  heir  of  the 
testatrix — James  v.  Hanks,   202  111.   114. 

39.  Scott  v.  Douglas,  39  Misc.  (N.  T.) 
555;  Weeter's  Estate,  21  Pa.  Super.  Ct.  241; 
Schlereth  v.  Schlereth,  73  App.  Div.  (N.  Y.) 
283;  Wyeth  v.  Sorchan,  38  Misc.  (N.  Y.)  173; 
Garvey  v.  United  States  Fidelity  &  Guar- 
anty Co.,  77  App.  Div.  (N.  Y.)  391;  Lee  v. 
Baird.  132  N.  C.  755;  Hutchlngs  v.  Davis,  68 
Ohio    St.    160. 

40.  Russell  V.  Hilton,  37  Misc.  (N.  Y.) 
642. 

41.  Boland  v.  Tiernay,  118  Iowa.  59; 
Rauch's  Estate,  21  Pa.  Super.  Ct.  60;  Bates 
V.    Spooner,    75   Conn.   501. 

42.  Chick  V.  Ives  (Neb.)  90  N.  W.  751; 
Walker  v.  Killian,  62  S.  C.  482;  Becker  v. 
Chester,  115  Wis.  90.  Though  the  will  di- 
rected a  sale  at  such  time  that  the  trustees 
should  determine  the  estate  could  be  sold 
to  the  best  advantage — Bates  v.  Spooner,  75 
Conn.    501. 

43.  In  re  Hammond's  EJstate,  74  App.  Div. 
(N.  Y.)    547. 

44.  Bedford  v.   Bedford   (Tenn.)    75  S.  W. 


1017.  Will  construed  and  direction  to  sell 
held  Imperative — Russell  v.  Hilton,  80  App. 
Div.  (N.  Y.)  178.  A  direction  to  sell  "all 
or  any  part"  of  the  realty  devised  is  a  dis- 
cretionary power — Condit  v.  Bigalow  (N.  J. 
Ch.)  54  Atl.  160.  Power  to  sell  or  mortgage 
if  In  their  [the  executors']  judgment  it  was 
necessary  will  not  operate  as  a  conversion — 
Carberry  v.  Ennis,  72  App.  Div.  (N.  Y.) 
489;   Sauerbier's  Estate,   202   Pa.   187. 

45.  In  re  McKay,  75  App.  Div.   (N.  Y.)   78. 

46.  Weeter's  Estate,  21  Pa.  Super.  Ct.  241. 

47.  Becker  v.  Chester,  115  Wis.  90;  Lynch 
V.  Spicer  (W.  Va.)  44  S.  E.  255.  As  a  direc- 
tion to  invest  the  property  and  pay  over 
when  the  heir  shall  have  reached  a  certain 
age — Mendel  v.  Levis,  40  Misc.  (N.  Y.)  271; 
Chick  V.  Ives  (Neb.)  90  N.  W.  751.  Will 
construed  and  held  not  to  work  an  Implied 
conversion — Sauerbier's  Estate,  202  Pa.  187. 

48.  As  where  testator  devised  more  than 
half  of  the  proceeds  of  the  estate  to  a  char- 
itable use  since  under  Laws  1860  the  de- 
vise of  one-half  is  valid  and  the  remaining 
half  descends  as  though  no  will  had  been 
made — Jones   v.    Kelly,    170   N.    Y.    401. 

49.  Clapp   V.   Tower,   11   N.   D.    556. 

50.  In  re  Reeve,  38  Misc.   (N.  Y.)   409. 

51.  Major  V.   Hunt.   64  S.   C.   97. 

52.  Rauch's  Estate,  21  Pa.  Super.  Ct.  60; 
Condit  V.  Bigalow  (N.  J.  Ch.)  54  Atl.  160; 
Trask  v.    Sturges,    170  N.   Y.   482. 

53.  Rauch's  Estate,  21  Pa.  Super.  Ct.  60; 
Scott  V.  Douglas,  39  Misc.  (N.  Y.)  555;  Mc- 
Williams  v.  Gough   (Wis.)   93  N.  W.  550. 

54.  Rauch's   Estate,    21    Pa.    Super.   Ct.    60. 

55.  Boland  v.  Tiernay,  118  Iowa,  59. 

56.  Rauch's  Estate,   21   Pa.   Super.  Ct.   60. 


708 


CONVICTS— COPYRIGHTS. 


§   2 


There  is  no  reconversion  of  a  share  of  the  proceeds  from  partition  sale  because  pay- 
ment is  postponed  until  after  death  of  the  life  tenant  which  happened  after  the 
death  of  the  co-tenant."^ 

§  4.  Effect  of  conversion. — Where  the  will  works  an  equitable  conversion, 
the  heirs  take  no  interest  in  the  realty  as  such.^*  The  beneficiary  takes  free  from 
any  lien  acquired  against  the  property  after  the  conversion.^* 

CONVICTS. 

This  article  treats  only  of  the  status  and  rights  of  convicts.'**  A  convict  has 
such  a  status  that  he  may  recover  for  a  tort,*^  is  competent  to  testify  as  a  wit- 
ness,°*  may  be  tried  for  crime,®^  but  an  oflBcer  having  charge  of  one  sentenced  to 
a  term  of  imprisonment  may  not  deliver  him  to  an  ofiicer  of  another  jurisdiction 
to  be  tried  for  another  offense.®* 

COPYRIGHTS. 

§  1.  By  whom,  for  what  and  how  ohtaindble.^^ — Only  citizens  or  residents 
are  entitled  to  the  protection  of  the  copyright  laws.''® 

What  subject  of  copyright. — Pictorial  illustrations  in  colors  though  not  for  a 
mechanical  end  and  though  d^a^vn  from  life,®^  and  though  made  from  a  series  of 
metal  plates,®*  or  a  series  of  photographs  arranged  for  a  machine  to  produce  a 
panoramic  effect,®*  or  a  colored  photograph  of  natural  scenery  may  be  copyrighted.^® 

Telegraphic  market  quotations  or  results  of  races  or  games  cannot  be  copy- 
righted as  literary  property.'^^  To  be  the  subject  of  copyright  a  dramatic  produc- 
tion must  tend  to  promote  the  arts  and  sciences.'^^ 

§  2.  Character  and  extent  of  protection;  infringements;  licenses. — The  stat- 
ute requiring  that  the  copyrighted  book  must  be  printed  from  type  set  in  the  United 
States  or  from  plates  made  therefrom  does  not  apply  to  a  book  copyrighted  before 
the  passage  of  the  act."  Only  the  original  matter  in  a  new  edition  of  a  book  is 
protected  by  the  copyright  thereon.'^* 


57.  In  re   Reeve,   38   Misc.    (N.   T.)    409. 

58.  Chick  V.  Ives  (Neb.)  90  N.  "W.  751. 
And  the  fee  does  not  vest  in  the  persons 
entitled  to  the  proceeds  of  the  sale — Walk- 
er V.  Killian,  62  S.  C.  482. 

.'»!).  As  a  lien  of  judgment  acquired  after 
the  direction  for  sale  by  will — Weeter's  Es- 
tate,  21   Pa.  Super.  Ct.   241. 

60.  Place  of  imprisonment  see  "Criminal 
Procedure." 

Effect  of  conviction  for  crime  on  credibil- 
ity   of   witness    see    "Witnesses." 

Penal  Institutions  see  "Charitable  and  Cor- 
rectional Institutions." 

Pardon  of  convicts  see  "Pardon  and  Parol." 

flJ.  Injuries  inflicted  by  a  lessee  of  con- 
vict labor — San  Antonio  &  A.  P.  Ry.  Co.  v. 
Gonzales   (Tex.   Civ.   App.)    72   S.  W.    213. 

(Note.)  In  New  York  a  convict  for  life  Is 
civilly  dead  (Graham  v.  Adams,  2  Johns.  Cas. 
408;  Freeman  v.  Frank,  10  Abb.  Pr.  370;  Plat- 
ner  v.  Sherwood,  6  Johns.  Ch.  118;  overruling 
Troup  V.  Wood,  4  Johns.  Ch.  228),  but  not 
for  purpose  of  descent  and  administration 
— Avery  v.  Everett,  110  N.  Y.  317;  Matter  of 
Zeph,  50  Hun  523;  Matter  of  Stephani,  75 
Hun,  188. 

03.     Dixon    V.   State    (Ga.)    42   S.   E.    357. 

63.  If  convicted  his  teim  will  commence 
on  completion  of  that  then  being  served — 
Clifford   V.    Dryden    (Wash.)    72   Pac.    96. 


64.  In  re  Jennings,  118  Fed.  479. 

65.  Uncorroborated  testimony  of  the  au- 
thor held  sufflclent  to  show  mailing  two 
copies  to  librarian — Patterson  v.  J.  S.  Ogll- 
vie  Pub.  Co.,  119  Fed.  451. 

66.  Evidence  held  sufficient  to  show  au- 
thor's residence — Patterson  v.  J.  S.  Ogllvle 
Pub.   Co.,   119   Fed.   451. 

67.  As  chromolithographic  advertisements 
of  a  circus.  U.  S.  Rev.  Stat.  §  4952  as  amend- 
ed 18  Stat,  at  Large  78.  79,  c.  301 — Blerstein 
V.  Donaldson  Lithographing  Co.,  188  U.  S. 
239,  47  Law.  Ed.  460;  reversing  104  Fed.  (C* 
C.  A.)    993. 

68.  U.  S.  Rev.  Stat.  §  4956 — Hills  &  Co.  v. 
Austrich,  120  Fed.  862. 

69.  Rev.  St.  §  4952 — Edison  v.  Lubln  (C.  C. 
A.)    122   Fed.    240;   reversing  119   Fed.   993. 

70.  Cleland  v.  Thayer  (C.  C.  A.)  121  Fed. 
71. 

71.  National  Tel.  News  Co.  v.  W.  U.  Tel. 
Co.,    119    Fed.    294. 

72.  Dramatic  production  held  Immoral  in 
its  tendencies  and  not  copyrightable,  and 
not  infringed  even  if  copyrightable — Barnes 
V.   Miner,    122   Fed.   480. 

73.  U.  S.  Rev.  St.  §  4956  as  amended  March 
3,  1891 — Patterson  v.  J.  S.  Ogilvie  Pub.  Co.. 
119   Fed.    451. 

74.  Kipling  v.  G.  P.  Putnam's  Sons  (C. 
C.  A.)    120   Fed.    631. 


§3 


CORONERS. 


709 


The  publication  of  a  work  without  the  notice  of  copyright  is  an  abandonment 
of  the  copyright/''  but  a  publication  by  the  licensee  without  the  notice  through 
inadvertence  is  not  an  abandonment  by  the  author/"  nor  is  a  sale  of  the  plates  of 
a  copyrighted  book  under  execution  against  the  author.'^^  A  loss  of  copyright  is 
not  effected  by  the  publication  of  the  book  under  a  short  title.''® 

Ignorance  of  copyright  is  not  an  excuse  for  publishing  a  copyrighted  work.^' 
The  use  of  authorities  cited  in  a  copyrighted  book  for  reference  purposes  in  the 
preparation  of  another  book  is  not  an  infringement  of  the  copyright/''  nor  is  the 
reproduction  of  pictures  made  from  a  copyrighted  photograph  of  a  painting  an 
infringement  of  the  latter.^^  There  is  nothing  in  the  statute  prohibitive  of  sell- 
ing unbound  volumes  of  a  copyrighted  book  by  the  licensee  and  of  the  purchaser 
binding  and  selling  the  same.*^  An  author  who  has  pirated  a  large  part  of  his 
copyrighted  work  has  no  standing  in  a  court  of  equity  to  protect  his  work  against 
piracy.®' 

§  3.  Remedies  and  procedure. — The  forfeiture  of  plates,  etc.,  because  of  un- 
lawful sale  of  a  copyrighted  article,  cannot  be  enforced  by  replevin.®*  The  statute 
limiting  the  time  in  which  to  sue  for  penalty  or  forfeiture  under  the  copyright 
laws  does  not  apply  to  a  bill  for  injunction  against  infringement.®"  In  a  bill  for 
infringement  of  a  copyrighted  book  by  a  corporation  claiming  ownership,  it  is  un- 
necessary to  allege  the  names  of  the  persons  engaged  in  the  preparation  of  the 
work,®"  but  it  must  allege  that  the  titles  of  the  copyrighted  books  were  recorded  by 
the  librarian  of  congress.®^  A  preliminary  injunction  restraining  further  publi- 
cation of  the  infringement  may  be  granted.®® 

CORONERS. 

Fees  of  coroners  are  regulated  by  statute.®*  The  inquest  is  not  admissible  in 
a  civil  action  to  show  cause  of  death.^°  The  coroner  is  liable  in  damages  to  the 
relatives  of  a  decedent  for  needless  mutilation  of  the  body."^ 


75.  As  the  exhibition  of  a  painting  by 
the  artist  In  a  foreign  country  for  several 
months — Werclcmeister  v.  American  Litho- 
graphic Co.,  117  Fed.  360.  "Copyright,  1902, 
published  by  Hills  &  Co.,  Ltd.,  London, 
England,"  is  a  sufficient  notice  of  copyright 
— Hills  &  Co.  V.  Austrich,  120  Fed.  862.  A 
series  of  photographs  to  be  used  in  a  ma- 
chine to  produce  panoramic  effect  is  suffi- 
ciently marlted  by  attaching  a  plate  bearing 
the  copyright  notice  at  one  end — Edison  v. 
Lubin    (C.    C.    A.)    122    Fed.    240. 

76.  American  Press  Ass'n  v.  Dally  Story 
Pub.  Co.    (C.   C.  A.)   120  Fed.   766. 

77.  78.  Patterson  v.  J.  S.  Ogilvle  Pub.  Co., 
119   Fed.    451. 

79.  American  Press  Ass'n  v.  Dally  Story 
Pub.   Co.    (C.  C.  A.)    120  Fed.   766. 

80.  Edward  Thompson  Co.  v.  American 
Law  Boole  Co.   (C.  C.  A.)   122  Fed.  922. 

81.  Champney  v.  Haag,  121  Fed.  944. 

82.  The  contract  between  the  owner  of  a 
copyright  and  his  licensee  is  not  binding 
between  the  latter  and  his  vendee — Kipling 
V.  G.  P.  Putnam's  Sons  (C.  C.  A.)  120  Fed. 
631. 

83.  Edward  Thompson  Co.  v.  American 
Law  Book  Co.    (C.  C.  A.)    122   Fed.   922. 


84.  U.    S.    Rev.    St.    9    4968"— Rinehart    ▼. 

Smith,    121    Fed.    148. 

85.  Patterson  v.  J.  S.  Ogilvle  Pub.  Co., 
119   Fed.    451. 

86.  Bill  held  to  sufficiently  allege  pro- 
prietorship and  unfair  use — Edward  Thomp- 
son Co.  V.  American  Law  Book  Co.,  119  Fed. 
217. 

87.  Edward  Thompson  Co.  v.  American 
Law  Book   Co.,   119   Fed.   217. 

88.  Sufficiency  of  showing  to  warrant  Is- 
suance— Chicago  Directory  Co.  v.  United 
States  Directory  Co.,  122  Fed.  189.  If  on 
motion  for  the  injunction  defendant  fails  to 
overcome  plaintiff's  prima  facie  showing  of 
an  infringement  the  injunction  will  issue — 
Trow  Directory  Printing  &  Bookbinding  Co. 
V.  United  States  Directory  Co.,   122   Fed.  191. 

89.  In  Georgia,  he  Is  entitled  to  $10  for 
every  Inquest  unless  his  fees  exceed  11,500 
per  year.  If  he  summons  the  jury  for  an 
inquest  himself  he  is  not  entitled  to  fees 
therefor — Davis   v.   Bibb  County,   116  Ga.    23. 

90.  Cox  v.  Royal  Tribe,  42  Or.  365,  71 
Pac.  73.  But  It  is  admissible  In  a  prosecu- 
tion for  murder — State  v.  Baptiste,  108  La. 
234. 

01.     Palenzke  v.   Brunlng,  98  111.  App.   644. 


'10 


CORPORATIONS.! 
Donald  J.  Kiseb. 


§  1.  Dennltlon  and  Nnturp  of  n  Corpora- 
tion. 

3  2.     Classification   of   Cori)oratIons. 

§  S.  Creation,  Xanie  and  Existence  of  Cor- 
porations and  Amendment,  Extension  and  Re- 
vival of  Charters. — Place  of  Incorporation; 
Record  of  Articles  of  Incorporation;  Pur- 
poses; Organization  as  Fraudulent  Convey- 
ance: Alteration  of  Charters;  Proof  of  Incor- 
poration. 

§  4.  Effect  of  Irrejjiilarltles  In  Orsaniza- 
tlon  and  of  Failure  to  Incorporate. — Stock- 
holder as  Partner  or  Agent;  De  facto  Cor- 
porations; Collateral  Attack;  Estoppel  to  De- 
ny Incorporation:  Quo  Warranto. 

5  5.  Promotion  of  Corporations;  Acts  Pri- 
or to  Incorporation:  Incorporation  of  Psirt- 
nerships.  etc. — Acting  as  Corporation  before 
Incorporation;  Contracts  before  Incorpora- 
tion; Fraud  and  Secret  Profits  of  Promoters. 

§  G.  Citixenship  and  Residence  or  Domicile 
of  Corporations. 

§  7.  Poivers  of  Corporations. — A.  In  Gen- 
eral.— Powers  of  Quasi  Public  Corporations. 

B.  Power  to  Take  and  Hold  Property. 

C.  Power  to  Transfer  or  Incumber 
Property  and  Franchises. — Power  to 
Lease  and  Pledge  of  Credit. 

D.  Powers  with  Respect  to  Contracts. 
— Restraint  of  Trade;  Particular  Con- 
tracts; Mode  of  Execution  of  Contract; 
Necessity  of  Seal;  Commercial  Paper; 
Conveyances. 

E.  Power  to  Take  and  Hold  Stock. 

§  8.  Effect  of  Ultra  Vires  and  Illegal  Trans- 
actions.— Estoppel  to  Assert  Ultra  Vires; 
Necessity  of  Pleading. 

5  9.  Torts,  Penalties  and  Crimes. — Person- 
al Liability  of  Officers  or  Receiver;  Lien  of 
Judgment  for  Negligence;  Penalties;  Embez- 
zlement by  Officers:  Procedure. 

§  10.  Actions  By  and  Against  Corpora- 
tions.— Right  to  Sue  in  Corporate  Name;  Ju- 
risdiction; Venue;  Parties:  Process;  Appear- 
ance; Pleading;  Defenses;  Arrest;  Mandamus. 

§  11.  Leslslative  Control  Over  Corpora- 
tions. 

§  12.  HotT  Corporations  May  Be  Dissolved; 
Forfeiture  of  Charter;  EflEect  of  Dissolution; 
Winding  Up  Under  Statutory  Provisions.— 
Receivership;  Insolvency. 

9  13.  Succession  of  Corporations;  Re-or- 
eranlzatlon.  Consolidation. — Rights  of  Stock- 
holders; Rights  of  Bondholders;  Effect  on 
Other  Existing  Rights;  Assumption  of  Lia- 
bilities; Agreement  to  Pay  Dividends;  Deter- 
mination of  Legality. 

S  14.  Stock  and  Membership. — A.  Mem- 
bership  In    Corporation   in   General. 

B.  Capital  Stock  and  Shares  of  Stock. — 
Nature;  Issue  and  Payment;  Watered  or 
Fictitiously  Paid  Stock;  Assessments  on 
Fully  Paid  Stock;  Amount;  Increase  and 
Reduction;  Preferred  Stock;  Issue  and 
Cancellation  of  Certificates;  Lost  Cer- 
tificates;  Fraudulent  Issues. 

C.  Subscriptions  to  Capital  Stock  and 
Other  Agreements  to  Take  Stock. — Na- 
ture of  Contracts;  Release  of  Subscrib- 
ers: Conditions  Precedent;  Fraud;  Pay- 
ment on  Subscriptions. 

D.  Calls  or  Assessments  on  Unpaid 
Subscriptions. — Liability;  Validity;  Es- 
toppel to  Object;  Forfeiture;  Enforce- 
ment. 


E.  Transfer  of  Shares. — Right  to 
Transfer;  Effect;  Lien  of  Corporation; 
Mode  of  Transferring  Shares;  Registra- 
tion; LTnauthorized  Transfers;  Compel- 
ling Corporation  to  Recognize  Transfer; 
Contracts  for  Sale  of  Stock;  Pledge  of 
Stock;  Gifts. 

F.  Miscellaneous  Rights  of  Stock- 
holders.— Right  to  Dividends;  Inspec- 
tion of  Corporate  Books  and  Papers; 
Contracts  with  Corporations;  Actions  to 
Enforce  Individual  Rights;  Remedies  for 
Injuries  to  the  Corporation;  Procedure; 
Appointment  of  Receiver. 

§  15.  Management  of  Corporations. — A. 
Control  of  Corporntion  by  Stockholders  or 
Members:  Power  of  Majority. 

B.  Dealings  Between  Corporation  and 
Its  Stockholders. 

C.  By-Laws  and  Resolutions. 

D.  Corporate  Meetings  and  Elections. 

E.  Right  to  Vote. — Injunction  Against 
Voting;  Cumulative  Voting;  Pledged 
Stock;  Stock  Held  in  Trust;  Proxies;  Vot- 
ing Trusts. 

F.  Appointment  and  Election  of  Of- 
ficers.— Tenure  of  Office;  Resignation  and 
Removal. 

G.  Salary  or  Other  Compensation  of  Of- 
ficers. 

H.  How  Directors  Must  Act;  Directors' 
Meetings. 

I.  Power  of  Corporations  to  Act 
Through  Stockholders. 

J.  Power  of  Directors  or  Trustees. 

K.  Powers  of  Other  Officers  and  Agents 
than  the  Directors  or  Trustees. — Presi- 
dent; Vice-President;  Secretary;  Treas- 
urer; Cashier;  Business  Manager;  Sales- 
men, etc. 

L.  Apparent  Authority  of  Officers  and 
Agents  and  Estoppel  of  the  Corporation 
and  of  Others. — Implied  Permission  to 
Act;  Acceptance  of  Benefits;  Duty  of 
Third  Persons  to  be  on  Their  Guard. 

M.   Ratification  of  Unauthorized  Acts. 

N.  Notice  to  or  Knowledge  of  Officers 
or  Agents  as  Notice  to  or  Knowledge  of 
Corporation. 

O.  Admissions,  Declarations  and  Rep- 
resentations of  Officers  or  Agents. 

P.  Delegation  of  Authority  by  Direct- 
ors. 

Q.  Personal  Liability  of  Officers  and 
Agents. 

R.  Liability  of  Officers  for  Mismanage- 
ment. 

S.  Dealings    Between    Corporation    and 
Directors  or  Other  Officers  and  Personal 
Interest  In  Transactions. — Secret  Profits; 
Purchase    of    Corporate    Property;    Com- 
promise of  Claims;  Mortgages;  Purchase 
at  Judicial  Sales;  Independent  Dealings; 
Ratification;  Remedies. 
§  16.     Rights  and  Remedies  of  Creditors  of 
Corporations. — A.  The   Relation  of  Creditors. 
— Assets  as  a  Trust  Fund. 

B.  Rights  and  Remedies  of  Creditors 
Against  the  Corporation. — Compromise  of 
Claims:  Preferences;  Right  to  Reach 
Wrongfully  Paid  Dividends;  Fraudulent 
Conveyances:  Liens;  Attachment  and 
Execution;  Suits  to  Wind  Up;  Assign- 
ments for  Creditors;  Insolvency  Proceed- 
ings; Receivership. 


§2 


DEFINITION  AND  NATURE. 


711 


C  Rights  of  Corporate  Mortgagees  and 
Bondholders. — "Validity  of  Mortgages  and 
Bonds;  IJen;  Transfer;  Enforcement;  Re- 
ceivership. 

D.  Officers  and  Stockholders  as  Credit- 
ors. 

E.  Liability  of  Stockholders  on  Unpaid 
Subscriptions. — Who  are  Liable;  Holders 
of  Paid  Up  Stock;  Estoppel  of  Stockhold- 
ers; Defenses;  Limitations;  Who  may 
Enforce;  Procedure;  Remedies  in  Case  of 
Receivership. 


P.  Personal  Liability  of  Stockholders 
for  Debts  of  Corporation  and  Remedies. — 
What  Law  Governs;  Statutory  Provi- 
sions; For  What  Debts  Liable;  Who  Lia- 
ble; Exhaustion  of  Remedy  Against  Cor- 
poration; Procedure. 

G.  Rights  and  Remedies  of  Creditors 
Against  Directors  and  Other  Officers. — 
Debts  Contracted  before  Organization; 
Special  Charter  Liabilities;  Misappropri- 
ation of  Funds;  Excessive  Debts;  Loans 
to  Stockholders;  Wrongfully  Paid  Divi- 
dends; Failure  to  File  Reports. 

§  1.  Definition  and  nature  of  a  corporation.'^ — A  corporation  has  an  existence 
as  a  distinct  legal  entity  apart  from  its  stockholders/  but  where  it  is  seeking 
equitable  relief  its  rights  depend  upon  the  equities  of  the  stockholders.* 

A  private  corporation  is  a  person  within  the  meaning  of  a  statute  authorizing 
quo  warranto  proceedings  by  the  attorney  general  in  the  name  of  the  state,  in 
case  any  person  unlawfully  holds  or  exercises  a  franchise.'' 

A  charter  is  a  legislative  grant,  and  in  case  of  doubt,  is  to  be  construed 
most  strongly  against  the  grantee,  and  not  against  the  state." 

§  2.  Classification  of  corporations. — The  nature  and  character  of  a  corpora- 
tion is  to  be  determined  solely  from  its  articles,''  as  when  the  question  is  whether 
a  corporation  is  a  manufacturing  one  whose  stockholders  are  subject  to  a  consti- 
tutional liability  for  its  debts.^ 

Public  corporations. — A  cemetery  association  is  a  public  and  not  a  private 
corporation.*  Water  companies  execute  services  of  a  public  nature,  and  as  such 
are  subject  to  regulation  as  to  rates.^°  The  owner  of  a  steamboat  is  not  a  quasi 
public  corporation  where  it  has  received  no  special  privileges  or  benefits  from  the 
state.^^  Where  a  corporation  has  received  the  right  of  eminent  domain  it  becomes 
subject  to  public  regulations  as  to  the  use  of  its  property  or  products.^^ 


1.  This  article  treats  generally  of  do- 
mestic private  corporations.  "Foreign  Cor- 
porations" is  made  the  subject  of  a  later 
article.  Taxation  of  corporate  property  will 
be  discussed  in  the  article  "Taxes."  Con- 
sult for  questions  peculiar  to  the  nature  of 
corporations  for  particular  purposes,  "Bank- 
ing and  Finance,"  "Building  and  Loan  As- 
sociations," "Charities,"  "Fraternal  and  Mu- 
tual Benefit  Associations,"  "Insurance  Com- 
panies," "Mines  and  Minerals,"  "Railroads," 
"Street  Railways,"  "Telegraphs  and  Tele- 
phones," "Warehousing  and  Deposits,"  "W^a- 
ters  and  Watercourses." 

2.  A  corporation  is  a  body,  or  artificial 
person,  consisting  of  one  or  more  individuals, 
or  sometimes  of  individuals  and  other  cor- 
porations, created  by  law,  and  Invested  by 
the  law  with  certain  legal  capacities,  as  the 
capacity  of  succession,  and  the  capacity  to 
sue  and  be  sued,  to  make  contracts,  to  take, 
hold  and  convey  property,  to  commit  crimes 
and  do  other  acts,  however  numerous  its 
members  may  be,  like  a  single  Individual. 

A  corporation,  therefore,  when  it  consists 
of  more  than  one  member,  as  is  now  almost 
universally  the  case,  may  be  regarded  accord- 
ing as  the  one  view  or  the  other  may  be 
necessary,  either  as  a  legal  body  or  entity, 
in  which  the  existence  of  the  natural  persons 
who  compose  it  is  merged,  or  as  a  collection 
or  association  of  natural  persons,  vested  with 
the  capacity  of  existing  and  acting  as  a  body 
— Clark  &  Marshall,  Corporations,  Vol.  I,  §  1. 

3.  Taylor  v.  Com.  (Ky.)  75  S.  W.  244,  so 
regarded    when    proceeding    at    law    or    as- 


serting a  title  to  property — Home  Fire  Ins. 
Go.  V.   Barber    (Neb.)    93  N.  W.   1024. 

4.  Home  Fire  Ins.  Co.  v.  Barber  (Neb.) 
93    N.    W.    1024. 

5.  Rev.  Sts.  1898,  §  3466 — State  ex  rel. 
Vilter  Mfg.  Co.  v.  Railroad  Co.  (Wis.)  92 
N.  W.  546.  Balllnger's  Ann.  Codes  and  St.  5 
5780 — State  v.  Seattle  Gas  and  Electric  Co.. 
28  Wash.  488,  68  Pac.  946. 

6.  Starkweather  &  Shepley  v.  Brown  (R. 
I.)    55    Atl.    201. 

7.  A  corporation  which  from  Its  articles 
appears  to  be  an  ordinary  business  asso- 
ciation, and  is  incorporated  under  a  stat- 
ute authorizing  the  formation  of  corpora- 
tions for  pecuniary  profits  (Gen.  St.  1894, 
c.  34,  §  2),  cannot  be  shown  to  be  a  char- 
itable institution — Craig  v.  Benedictine  Sis- 
ters Hospital  Ass'n    (Minn.)    93  N.  W.  '669. 

8.  Articles  held  to  show  that  a  corpora- 
tion organized  for  the  purchase  of  capital 
stock,  evidences  of  Indebtedness  and  assets 
of  an  existing  corporation  and  for  the  pur- 
pose of  the  manufacture  and  sale  of  cer- 
tain articles,  is  not  a  corporation  organized 
for  the  sole  purpose  of  carrying  on  an  ex- 
clusive manufacturing  business,  but  is  in 
the  class  authorized  by  Gen.  Sts.  1894,  p. 
766,  c.  34,  tit.  2 — In  re  Receivership  of  Min- 
nesota Thresher  Mfg.  Co.  (Minn.)  95  N.  W. 
767;   Converse  v.  Morgan,   Id. 

9.  Davis  V.  Coventry,  65  Kan.  657,  70 
Pac.  583. 

10.  City  of  Tampa  v.  Tampa  Waterworks 
(Fla.)    34    So.    631. 

11.  Phelps  V.  Windsor  Steamboat  Co.,  131 
N.   C.   12. 


712 


CORPORATIONS. 


§3 


A  charter  of  a  corporation  not  for  purposes  wdthin  the  intendment  of  a  par- 
ticular statute  may,  by  express  reference  to  such  statute,  render  the  corporation 
subject  to  the  duties  and  liabilities  imposed  on  corporations  of  that  class.*'  Where 
a  corporation  not  a  manufacturing  corporation  is  by  its  charter  made  subject  to 
certain  duties  with  relation  to  the  filing  of  statements  as  to  its  capital  stock  and 
property  imposed  on  manufacturing  corporations,  it  may  be  compelled  to  file  such 
statements  in  the  oSice  of  the  city  clerk  of  the  city  where  it  was  required  to  have 
an  accounting  room  or  place  of  business,  the  provision  of  the  statute  requiring 
the  filing  in  the  office  of  the  town  clerk  in  the  town  where  the  manufactory  is 
established,  or  if  it  has  no  manufactory,  where  an  office  of  the  corporation  is 
located.** 

§  3.  Creation,  name,  and  existence  of  corporations,  and  the  amendment,  exten- 
sion, and  revival  of  charters.  Place  of  incorporation. — In  Georgia  the  superior 
court  of  the  county  may  grant  a  charter  to  a  corporation  whose  principal  office  is 
to  be  located  within  the  county,  though  it  own  no  property  therein  and  its  busi- 
ness is  to  be  carried  on  elsewhere.*^ 

Articles. — The  president  and  directors  of  a  corporation  need  not  affix  their 
official  title  to  their  signatures  to  articles  of  incorporation.*® 

Filing  and  record  of  articles. — Corporate  existence  begins  with  compliance 
with  statute  as  to  the  filing  of  the  articles  of  incorporation.*'''  By  statute,  filing 
articles  with  the  secretary  of  state  as  well  as  record  in  the  county  where  the  cor- 
poration is  to  transact  business  may  be  required.**  Where  the  statute  provides 
that  the  certificate  of  incorporation  shall  be  filed  in  the  office  of  the  secretary  of 
state  and  a  duplicate  shall  be  recorded  in  the  town  clerk's  office,  compliance  with 
the  latter  provision  does  not  dispense  with  the  necessity  of  the  first.*' 

Stoch  subscriptions. — There  must  be  valid  and  binding  subscriptions  for  stock 
before  articles  of  incorporation  are  filed.^" 

Purposes. — Where  statutes  authorize  the  organization  of  corporations  for 
particular  purposes,  the  objects  of  a  corporation  must  be  within  the  intendment 
of  the  statute.**  Wliere  the  purposes  for  which  corporations  may  be  organized 
are  specified  in  separate  subdivisions  of  a  chapter  of  a  statute,  purposes  sepa- 


12.  Fallsburg  Power  &  Mfg.  Co.  v.  Alex- 
ander (Va.)    43  S.  E.  194. 

13.  A  'charter  of  a  corporation  for  the 
purposes  of  acquiring  realty  for  the  main- 
tenance and  establishment  of  a  place  of 
recreation,  conferring  full  power  to  sell 
and  convey  "with  all  the  powers  and  priv- 
ileges, and  subject  to  all  the  duties  and 
liabilities  set  forth  In  cc.  152,  155  of  the 
Public  Statutes  and  in  any  acts  and  amend- 
ments thereof  in  addition  thereto"  plainly 
Intends  that  the  corporation,  though  not 
a  manufacturing  company,  shall  be  subject 
to  all  the  provisions  which  manufacturing 
companies  are  made  subject  to  by  c.  155. 
and  may  be  required  to  file  a  statement  as 
to  the  amount  of  Its  capital  stock,  the  as- 
sessed value  of  its  realty,  the  value  of  Its 
personalty  and  the  amount  of  its  debts 
or  liabilities  as  required  by  Gen.  Laws  1S96, 
c.  180,  p.  558,  §  11,  being  the  amended  form 
of  section  11  of  such  chapter  155,  and  on  the 
failure  to  file  such  a  statement  the  liabil- 
ity prescribed  by  the  statute  may  arise, 
though  the  section  imposing  such  penalty  Is 
penal  In  character — Starkweather  &  Shep  ■ 
ley  V.   Brown    (R.   I.)    55    Atl.    201. 

14.  Starkweather  &  Shepley  v.  Brown  (R. 
I.)    6S  Atl.    201. 


15.  McCandless    v.    Inland    Acid    Co.,    116 

Ga.    968. 

16.  St.  Louis  &  S.  F.  R.  Co.  V.  S.  W. 
Telephone  &  Telegraph  Co.  (C.  C.  A.)  121 
Fed.    276. 

17.  Rev.  Sts.  Mo.  §  2492— Ryland  v.  Hol- 
linger  (C.  C.  A.)  117  Fed.  216.  Sand.  & 
Hill.  Dig.  §  1334  is  complied  with  by  filing 
a  copy  of  the  articles  of  Incorporation  with 
the  clerk  of  the  county  which  It  has  se- 
lected as  its  place  of  business;  filing  In 
every  county  In  which  Its  business  extends 
is  not  required — St.  Louis  &  S.  F.  R.  Co. 
V.  S.  W.  Telephone  &  Telegraph  Co.  (C.  C 
A.)    121    Fed.    276. 

18.  Ky.  Sts.  §§  880,  779— Sims  v.  Com.,  71 
S.    W.    929,    24    Ky.    L.    R.    1591. 

19.  Gen.  Sts.  (Conn.)  §§  1944,  1948 — Card 
V.   Moore,    68   App.   Div.    (N.   Y.)    327. 

20.  Reid  V.   Paint  Co.    (Mich.)    94  N.  W.  3. 

21.  A  corporation  to  grow,  sell  and 
purchase  rice,  and  other  agricultural  prod- 
ucts Is  not  authorized  by  Rev.  St.  art. 
642,  subd.  27,  providing  for  corporations  for 
the  growing,  selling  and  purchasing  of 
seeds,  plants,  trees  and  the  like,  for  agri- 
cultural and  ornamental  purposes — Miller  v. 
Tod,    95    Tex.    404. 


§  3 


PURPOSES. 


713 


rately  specified  cannot  be  combined.-^'  The  acts  of  a  secretary  of  state  in  filing 
articles  of  incorporation  will  not  overcome  the  obvious  intention  of  the  statute,^* 
nor  does  the  amendment  in  other  respects,  of  a  statute  stipulating  the  purposes 
of  corporations,  after  executive  officers  of  the  state  have  sanctioned  the  organiza- 
tion of  corporations  combining  purposes  specified  in  separate  subdivisions,  indicate 
a  legislative  sanction  of  the  executive  construction.-* 

Where  a  portion  of  an  act,  providing  for  the  organization  of  corporations,  is 
carried  forward  without  change  into  a  subsequent  statute,  the  intention  of  the 
legislature  as  indicated  in  the  original  act  will  control  on  a  question  of  interpreta- 
tion of  the  portion  so  carried  forward. ^^ 

Corporations  organized  under  the  New  Jersey  Corporation  act,  L.  1899,  p. 
473,  are  limited  by  the  provisions  therein,  which  permit  organization  of  corpora- 
tions, "for  any  lawful  purpose."^®  A  corporation  may  be  organized  for  the  pur- 
pose of  holding  stock  in  and  controlling  the  operation  of  other  corporations.'*'' 
Statutory  authorization  of  corporations  not  for  pecuniary  profit,  among  which  are 
included  cemetery  associations,  does  not  authorize  the  incorporation  of  a  cemetery 
association  from  which  private  profit  is  to  be  derived.^*  A  corporation  cannot, 
under  the  Indiana  statute,  be  organized  for  the  generation  and  sale  of  electricity 
together  with  the  manufacture  and  sale  of  electrical  appliances,  apparatus,  and 
supplies.^^  By  charter  a  corporation  cannot  be  allowed  to  obstruct  a  public 
street.^" 

Creation  by  special  statute.^^ — Where  a  corporation  is  organized  under  a  spe- 
cial law,  it  is  not  relieved  from  the  obligations  imposed  thereby  by  the  acceptance 
of  a  general  law.^^  The  general  corporation  act  becomes  a  part  of  the  charter  of 
a  corporation  by  the  act  of  incorporation  and  a  corporation  which  is  organized 
under  an  act  rendering  it  subject  to  regulations  of  the  legislature  cannot  take 
advantage  of  provisions  in  the  charters  of  corporations  whose  property  it  leases 
rendering  the  use  of  such  property  free  from  legislative  interference.^' 

Acts  to  be  done  after  incorporation. — Failure  to  perform  acts  required  to  be 


22.  Construing  Act  1871,  Gen.  Laws  1871, 
second  session,  c.  80 — Ramsey  v.  Tod,  95  Tex. 
614. 

23.  Acts  of  secretaries  of  state  in  filing 
articles  including  several  purposes  indicat- 
ed by  the  separate  subdivisions  of  Gen. 
Laws  1871,  second  session,  c.  80,  §  5 — Ram- 
sey  V.   Tod,    95   Tex.    614. 

24.  An  amendment  to  a  statute  author- 
izing organization  of  corporations  limiting 
amendments  to  corporate  charters  to  pur- 
poses germane  to  the  original  object  of  in- 
corporation does  not  permit  an  Incorporation 
for  purposes  enumerated  in  separate  sub- 
divisions of  the  list  of  authorized  purposes, 
nor  empower  corporations  to  hold  sucli  prop- 
erty, as  the  "purposes"  of  the  corporation 
shall  require.  Act  1874,  Gen.  Laws  1874, 
c.  97,  amending  Act  1871,  as  re-enacted  in 
Rev.  St.  1879,  Rev.  St.  1895,  art.  649 — Ram- 
sey V.   Tod,   95  Tex.   614. 

25.  Construing  Rev.  St.  1895,  arts.  641- 
643,  originally  a  portion  of  Act  1871,  Gen. 
Laws  1871,  second  session,  c.  80,  §§  4-6 — 
Ramsey  v.  Tod.   95  Tex.   614. 

26.  United  States  v.  Northern  Securities 
Co.,    120    Fed.   721. 

27.  Rev.  Laws  1875,  p.  6,  §  10,  Corporation 
Act  1896,  p.  294,  §  51 — Dittman  v.  Distilling 
Co.   of   America    (N.   J.   Eq.)    54    Atl.    570. 


28.  Gen.  St.  1894,  §§  2913-2929— Brown  ▼. 
Maplewood  Cemetery  Ass'n,  85  Minn.  498. 

29.  Burns'  Rev.  Sts.  1901,  {  5051 — Burke 
V.    Mead,    159    Ind.    252. 

30.  Circuit  court  has  no  power  to  grant 
such  a  charter — City  of  Richmond  v.  Smith 
(Va.)    43    S.    E.    345. 

31.  The  title  of  a  special  act  "To  incor- 
porate the  Blooming  Grove  Park  Associa- 
tion" is  sufficient  to  authorize  the  inclu- 
sion of  a  provision  that  the  corporation 
shall  have  the  right  to  prevent  hunting  on 
its  lands — Commonwealth  v.  Hazen,  20  Pa. 
Super.   Ct.   487. 

32.  Railroad  corporation — Terre  Haute  & 
L   R.   Co.   V.   State,    159   Ind.    438. 

33.  A  corporation  organized  for  the  pur- 
pose of  operating,  owning  and  leasing  street 
railroads  in  Chicago,  under  1  Starr  &  C. 
Ann.  St.  (3d.  Ed.)  p.  1006,  Incorporation 
Act,  §  9,  cannot,  by  the  leasing  of  rail- 
road lines  from  corporations  whose  char- 
ters confer  a  right  to  charge  a  certain 
fare  which  the  city  cannot  reduce  without 
their  consent,  insist  on  such  charter  rights. 
Chicago  City  Charter,  art.  5,  §  1;  1  Starr 
&  C.  Ann.  St.  (2d  Ed.)  pp.  689-715,  giving 
the  city  power  to  regulate  the  amount  of 
fare  exacted  by  street  railroads — Chicago 
Union  Traction  Co.  v.  City  of  Chicago,  199 
111.    484,    59   L.    R.   A.    631. 


714 


CORPORATIONS. 


§  3 


done  after  the  formation  of  the  corporation  does  not  affect  its  existence  if  the 
failure  continue  for  but  a  short  time.^* 

Organization  as  a  fraudulent  conveyance. — The  organization  of  a  corpora- 
tion from  a  partnership,  the  partnership  property  having  been  previously  conveyed 
in  part  to  the  wives  of  the  partners,  and  then  the  entire  property  turned  over  to 
the  corporation  in  return  for  stock,  evidences  a  fraudulent  conveyance,"  as  does 
the  organization  of  a  new  corporation  to  which  the  assets  of  an  old  corporation 
are  transferred  to  defeat  existing  creditors,^*  or  the  fact  that  a  firm  in  connection 
with  a  heavy  creditor,  organizes  a  corporation  to  which  it  transfers  its  assets,  the 
creditor  securing  one-half  interest  in  the  new  corporation  in  return  for  his  debt.''' 

Corporate  name. — The  fact  that  a  single  person  becomes  the  owner  of  all  the 
stock  does  not  cause  the  termination  of  the  corporation,  unless  the  purposes  for 
which  it  is  organized  have  ceased,  hence  the  corporate  name  may  still  be  used.^' 

Where  a  corporate  name  is  taken  to  secure  the  trade  of  another  by  deception 
and  fraud,  the  use  may  be  restrained.^® 

Amendment,  extension,  and  revival  of  charters. — WTiere  a  statute  provides 
that  articles  of  incorporation  may  be  amended,  altered  or  repealed  unless  they  con- 
tain a  limitation  to  the  contrary,  charters  without  such  limitation  are  subject  to 
such  provision.*"  The  existence  of  a  corporation  may  be  extended  by  amend- 
ment of  the  articles  without  readopting  and  refiling  the  articles  as  in  the  case  of 
an  original  incorporation.*^ 

The  fact  that  an  act  creating  a  corporation  is  amended  so  as  to  relieve  the 
corporation  from  the  necessity  of  performing  a  certain  portion  of  its  purposes,  and 
to  create  a  new  corporation  to  perform  such  portion,  does  not  annul  the  original 
corporation.*^  A  slight  change  in  the  name  under  which  an  extension  of  a  cor- 
porate charter  is  granted  does  not  cause  a  new  corporation  to  result.*'  Where  the 
first  certificate  of  incorporation  is  void  because  a  sufficient  per  cent  of  the  capital 
stock  has  not  been  paid  in  cash,  an  additional  certificate  containing  the  material 
statements  of  an  original  certificate  which  is  filed  after  proper  payment,  will 
operate  as  an  original  certificate,  though  entitled  an  amended  certificate.** 

Fees  imposed  for  the  original  organization  of  corporations  cannot  be  exacted 
on  renewal  by  amendment  of  the  original  articles  of  a  corporation  which  has 
terminated  by  lapse  of  time,*^  and  statutory  provisions  for  renewal  fees,  though 
retrospective,  do  not  apply  to  corporations  which  have  been  promptly  renewed 
prior  to  their  passage  but  there  has  been  a  wrongful  refusal  by  the  secretary  of 
state  to  file  the  amendment.*" 


34.  Construing  Rev.  Sts.  Mo.  §§  961,  1283, 
1024— Ryland  v.  Hollinger  (C.  C.  A.)  117 
Fed.   216. 

3.'.     Metcalf   V.    Arnold.    132   Ala.    74. 

36.  Buekwalter    v.    V^'hlpple,    115    Ga.    484. 

37.  Colorado  Trading  &  Transfer  Co.  v. 
Acres  Commission  Co.  (Colo.  App.)  70  Pac. 
954. 

38.  Distilling  corporation,  which  having 
sold  its  distilleries  continues  to  own  prop- 
erty and  keep  up  its  organization,  may 
authorize  the  use  of  the  corporate  name, 
though  it  consists  merely  of  the  name  of  a 
stockholder  who  has  withdrawn  and  the 
addition  of  the  word  "company" — Geo.  T. 
Stagg  Co.  V.  E.  H.  Taylor,  Jr.,  &  Sons,  68  S. 
W.  862,  24  Ky.  L.  R.  495. 

39.  Imperial  Mfg.  Co.  v.  Schwartz,  105  111. 
App.  525. 

40.  Act   1868,   c   697,    incorporating  Maine 


Eclectic    Medical    Society,    Rev.    Sts.    c.     46, 
§    23 — State  v.   Bohemier,    96   Me.    257. 

41.  Code  1897,  §§  1618,  1615 — C.  Lamb  & 
Sons  v.  Dobson,  117  Iowa,  124. 

42.  Terre  Haute  &  I.  R.  Co.  v.  State,  159 
Ind.   438. 

43.  On  change  of  name  from  Orphans' 
Home  to  Protestant  Orphans'  Home,  tlie  cor- 
poration acting  under  the  new  name  may 
transfer  land  purchased  under  the  old — Pal- 
frey V.  Association    (La.)    34  So.   600. 

44.  People  ex  rel.  N.  Y.,  N.  H.  &  H.  B. 
Co.  V.  Board  of  Railroad  Com'rs,  81  App. 
Div.    (N.    T.)    242. 

45.  Code,  9  1610 — C.  Lamb  &  Sons  v.  Dob- 
son,  117  Iowa,  124. 

46.  Acts  28th  Gen.  Assem.  c.  56,  amend- 
ing Code  1897,  §  1618 — C.  Lamb  &  Sons  v. 
Dobson,    117    Iowa,    124. 


PROOF  OF  INCORPORATION. 


715 


Proof  of  incorporation.*^^ — The  corporate  existence  of  a  plaintiff  corporation 
is,  in  the  absence  of  contrary  evidence,  sufficiently  established  by  certified  copies 
of  the  articles  of  incorporation."'*  A  certified  copy  of  a  private  act  of  incorporation 
cannot  be  introduced  in  evidence  to  show  the  existence  and  powers  of  a  corpora- 
tion, but  a  certified  copy  of  the  recorded  act  must  be  introduced,  the  law  requiring 
the  charter  to  be  recorded  in  one  of  the  counties  of  the  state.*®  The  mere  fact 
that  there  is  evidence  that  a  writing,  piirporting  to  be  articles  of  incorporation, 
was  executed,  is  insufficient  to  establish  a  corporation  where  there  is  no  evidence 
that  the  articles  were  filed,  one-half  of  the  stock  subscribed  or  a  board  of  directors 
elected.'*" 

Evidence,  unobjected  to,  that  plaintiff  was  a  corporation,  may  be  sufficient 
proof  of  its  existence  in  an  action  of  unlawful  detainer,  though  there  was  a  gen- 
eral denial  of  all  the  allegations  of  the  complaint  among  which  was  that  of  cor- 
porate existence,  but  an  affirmative  defense  recognizing  such  existence  was  con- 
junctively set  up."^^ 

The  fact  that  the  statute  provides  that  certified  copies  of  certain  instruments 
shall  be  considered  prima  facie  evidence  of  the  facts  therein  stated  does  not  render 
inadmissible  evidence  of  the  de  facto  existence  of  the  corporation  under  the  name 
alleged  in  an  information,  there  being  no  provision  excluding  other  proof  of  the 
corporate  existence.^^ 

In  order  to  show  that  a  person  is  one  of  the  incorporators  of  a  corporation, 
the  record  of  the  proceeding  to  incorporate,  together  with  the  issuance  of  the  final 
certificate,  is  admissible,  as  it  also  is  to  show  dealings,  estopjnng  the  person  from 
denying  the  corporate  existence.^' 

The  minutes  or  a  certified  copy  of  a  corporation  must  be  procured  as  the 
best  evidence  of  its  corporate  actions,  though  they  are  in  a  foreign  state.^* 

Burden  of  proof. — The  burden  of  proving  nonissuance  of  a  license  to  transact 
business  is  on  the  person  asserting  it.^^  A  prima  facie  showing  of  corporate  exist- 
ence of  plaintiff  is  sufficient,  unless  such  existence  is  placed  in  issue.^"  After  a 
corporation  sued  as  such,  makes  a  general  appearance,  files  a  demurrer,  and 
answers  in  its  corporate  name,  plaintiff  cannot  be  charged  with  the  burden  of  prov- 
ing its  corporate  existence  though  such  existence  is  denied  in  the  answer."'^ 

Variance. — The  fact  that  a  corporation  in  its  petition  wrongfully  states  the 
date  of  its  incorporation  does  not  render  inadmissible  a  copy  of  its  charter.^' 


47.  Pleading  corporate  existence,  see  post, 
i  10. 

4S.  From  secretary  of  state  and  register 
of  deeds — Dowaglac  Mfg.  Co.  v.  Higgin- 
botham,  15  S.  D.  547.  Where  a  denial  of 
a  corporation's  existence  is  made  in  equity 
on  information  and  belief.  It  is  overcome  by 
a  duly  certified  copy  of  the  charter  accom- 
panied by  parol  evidence — Samuel  Bros.  & 
Co.  V.  Hostetter  Co.  (C.  C.  A.)  118  Fed. 
257.  Corporate  existence  Is  sufficiently 
proven  by  a  certified  copy  of  an  amended 
charter,  signed  by  the  state  auditor,  and 
evidence  of  the  corporation  cashier  that  the 
corporation  was  duly  organized  and  acting 
thereunder,  and  that  it  had  been  doing 
business  under  a  previous  charter,  and  had 
never  been  dissolved,  together  with  the 
minutes  of  the  corporation  showing  a  re- 
organization under  the  second  charter — State 
Bank  of  Chicago  v.  Carr,  130  N.  C.   479. 

49.  Star  Loan  Ass'n  v.  Moore  (Del.  Super.) 
S6  Atl.   946. 


50.  Construing  Hill's  Ann.  Laws,  §5  3217- 
3219,  3221,  3222-3225 — Goodale  Lumber  Co. 
V.    Shaw,   41   Or.   544,    69   Pac.   546. 

51.  Stanford  Land  Co.  v.  Steidle,  28  Wash. 
72,    68    Pac.    178. 

52.  State  V.  Plttam    (Wash.)    72  Pac.   1042. 

53.  Curtis   V.   Parker   &   Co.,    136   Ala.    217. 

54.  Central  Elec.  Co.  v.  Sprague  Elec.  Co. 
(C.   C.   A.)    120   Fed.   925. 

55.  Being  a  matter  of  record  In  a  public 
office — Northrup  v.  Wills  Lumber  Co.,  65 
Kan.    769,    70    Pac.    879. 

56.  MacMillan  Co.  v.  Stewart  (N.  J.  Sup.) 
54  Atl.  240. 

57.  Perris  Irr.  Dlst.  v.  Thompson  (C.  C. 
A.)    116    Fed.    832. 

58.  In  a  petition  by  the  T.  &  N.  O.  R. 
Co.  of  1874,  a  charter  Incorporating  the  T. 
&  N.  O.  R.  Co.  In  1859  Is  admissible — Texas 
&  N.  O.  R.  Co.  V.  Barber  (Tex.  Civ.  App.) 
71    S.    W.    393. 


716 


CORPORATIONS. 


§4 


Proof  of  corporate  seal. — The  authenticity  of  a  seal  of  a  private  corporation 
must  be  established  by  evidence."* 

§  4.  Effect  of  irregulariiies  in  organization,  and  of  failure  to  incorporate. 
Stockholder  as  partner  or  agent. — Where  the  constituent  companies  from  which  a 
consolidated  corporation  is  formed  had  no  legal  existence  as  a  corporation,  and 
hence  the  consolidated  com'pany  had  no  such  legal  existence,  one  of  the  stock- 
holders of  the  illegally  formed  corporation  cannot  hold  a  corporation,  which  is  a 
majority  stockholder  therein,  liable  to  him  as  an  agent,  in  the  absence  of  evidence 
of  any  intention  to  assume  such  liability,  nor  can  such  corporation  be  held  to  the 
liability  of  a  partner  inter  sese,  there  being  no  evidence  that  a  partnership  was 
intended  and  the  rights  of  the  parties  must  be  determined  as  if  both  corporations 
had  a  legal  corporate  existence."" 

De  facto  corporations — Collateral  attach. — A  bona  fide  attempt  to  organize, 
accompanied  by  actual  user  of  the  corporate  franchise,  creates  a  de  facto  corpora- 
tion,"^ and  where  a  corporation  is  by  its  articles  apparently  duly  organized  and 
existing  under  the  laws  of  the  state,  its  charter  cannot  be  collaterally  attacked,®^ 
nor  can  grounds  for  forfeiture  be  so  urged.®*  Where  the  entire  business  trans- 
acted is  outside  the  grant  contained  in  the  act  imder  which  incorporation  is  sought 
to  be  effected,  there  is  no  de  facto  corporation.®* 

In  order  to  establish  a  de  facto  existence  of  a  banking  corporation  on  a  prose- 
cution of  the  cashier  for  the  receipt  of  a  deposit  after  insolvency,  the  statute 
existing  at  the  time  of  the  indictment  may  be  shown  though  it  did  not  exist  at  the 
time  when  the  attempt  to  organize  was  made.®' 

Where  by  statute  it  has  been  provided  that  corporations  for  certain  purposes 
may  be  formed  and  that  companies  previously  incorporated  for  such  purposes  may 
by  acceptance  of  the  provisions  of  the  later  statute,  and  filing  a  certificate  with  the 
Becretary  of  state,  obtain  its  privileges,  a  corporation  which  continues  to  carry  on 
the  business,  but  which  fails  to  file  the  certificate,  may  be  regarded  as  a  de  facto 
corporation.®®  Defects  and  irregularities  in  articles  of  incorporation  do  not  prevent 
the  corporation  from  being  a  corporation  de  f acto,®^  as  where  they  are  filed  by  error 


60.     Reed  v.   Fleming,  102  111.   App.   668. 

60.  Cannon  v.  Brush  Elec.  Co.,  96  Md. 
446. 

et.  Attempt  to  organize  an  Irrigation  dis- 
trict under  the  California  Irrigation  Act, 
March  7,  1887 — Tulare  Irr.  Dist.  v.  Shepherd, 
185  U.  S.  1,  46  Law.  Ed.  773.  Under  the 
General  Incorporation  act  allowing  forma- 
tion of  corporations  for  any  lawful  purpose 
except  banking,  insurance  and  real  estate 
brokerage,  the  operation  of  railroads  and  the 
business  of  loaning  money,  a  corporation 
organized  for  the  purpose  of  promoting  the 
principles  of  Masonry  and  erection  of  a 
building,  providing  conveniences  therefor, 
is  sufficiently  within  the  statute  to  have 
a  de  facto  existence — Lincoln  Park  Chapter 
R.  .\.  M.  V.  Swatek,  105  111.  App.  604.  Evi- 
dence held  sufficient  to  show  a  grant  of  cor- 
porate powers  and  user — United  States 
Mortg.  Co.  V.  McClure,  42  Or.  190,  70  Pac 
543. 

62.  I'nion  Pac.  R.  Co.  v.  Colorado  Postal 
Tel.  Cable  Co.  (Colo.)  69  Pac.  564;  Lincoln 
Park  Chapter  R.  A.  M.  v.  Swatek.  105  111. 
App.  604;  Otoe  County  Fair  &  Driving  Park 
Ass'n   V.   Doman    (Mich.)    95  N.  W.    327. 

63.  Nicolai  t.  Maryland  Agricultural  & 
Mechanical  Ass'n,  96  Md.  323.  Where  a  cor- 
poration  asserts   a   franchise    In    its   defense. 


the  question  of  whether  such  franchise  Is 
rightfully  held  and  acquired  can  be  raised 
only  in  a  direct  proceeding — Bronson  v.  Al- 
bion Tel.  Co.  (Neb.)  93  N.  W.  201,  60  L.  R. 
A.    426. 

64.  A  grange  conducting  a  mercantile 
business  does  not  become  a  de  facto  cor- 
poration by  an  attempt  to  Incorporate  un- 
der an  act  declaring  that  the  trustees  of 
the  grange  shall  be  a  body  corporate  with 
only  ordinary  powers  incidental  to  all  cor- 
porations, the  enumerated  powers  being  to 
have  a  common  seal,  to  sue  and  be  sued,  to 
acquire,  hold,  improve  and  lease  or  sell 
land  and  to  have  a  capital  stock  and  to  make 
by-laws — Henry  v.  Simanton  (N.  J.  Ch.)  54 
Atl.    153. 

6,-.  State  v.  Stephens  (S.  D.)  92  N.  "W. 
420. 

66.  Bank  organized  under  acts  permit- 
ting formation  of  private  corporations,  there 
being  no  authority  to  create  banking  cor- 
porations, becomes  a  de  facto  corporation 
on  receiving  deposits.  Construing  Act  Con- 
gress July  30.  1886  (24  St.  c.  18,  §  5);  Laws 
1887,  c.  35.  [Comp.  Laws.  §  2900]  c.  172,  [Comp. 
Laws,  §§  3185,  3186] — Mason  v.  Stevens  (S.  D.) 
92   N.   W.    424. 

67.  Authority  and  law  to  Incorporate, 
and    attempt    in    good    faith    to    Incorporati 


§  4 


ESTOPPEL  TO  DENY  INCORPORATION. 


717 


with  the  wrong  officer,'*  but  where  the  articles  of  incorporation  are  on  their  face 
void,  they  may  be  so  declared  in  a  collateral  proceeding.""  The  existence  of  a  cor- 
poration cannot  be  collaterally  attacked  because  it  has  failed  to  do  business,^"  or  be- 
cause it  is  incorporated  for  purposes  not  specified  by  the  statute  or  for  more  than  the 
number  of  purposes  permitted."  Under  statutes  allowing  private  parties  to  in- 
quire into  the  extent  and  existence  of  franchises  created  by  corporate  charters, 
the  validity  of  the  charters  cannot  be  disputed." 

Where  legal  formalities  regarding  incorporation  have  been  complied  with,  the 
alleged  corporation  must  be  party  to  a  bill  seeking  the  division  of  its  property, 
though  it  is  asserted  that  it  has  no  corporate  existence  and  that  its  stockholders 
are  liable  as  co-partners.'^' 

Estoppel  of  corporation  to  deny  incorporation. — A  de  facto  corporation  can- 
not assert  the  fact  that  it  is  not  legally  incorporated  as  against  a  purchaser  of  its 
bonds  for  value  and  without  notice,^*  or  as  against  the  trust  deed  securing  the 
bonds.^*  A  writing  reciting  the  existence  of  a  corporation  made  by  partners  with- 
out intent  to  create  a  corporation  does  not  prevent  one  partner  from  asserting  that 
there  was  no  corporate  existence  as  against  those  who  claim  under  the  other  part- 
ner.^' 

Estoppel  of  tliird  persons  to  deny  incorporation. — One  who  deals  with  a  cor- 
poration in  its  corporate  capacity  cannot  avail  himself  of  its  want  of  legal  organi- 
zation," and  a  body  dealt  with  as  a  de  facto  corporation  may  recover  on  contracts 
entered  into  with  it.'^' 

Creditors  who  become  such  after  an  attempted  incorporation  though  the  debts 
are  not  contracted  in  the  course  of  corporate  business  may  file  a  bill  to  wind  up 
their  debtor  as  a  voluntary  association.''® 

If  an  action  is  begun  against  a  defendant  as  a  corporation,  plaintiff  cannot 


thereunder,  issuance  of  articles  of  Incorpo- 
ration, certification  of  record  by  secretary 
of  state,  holding:  of  meetings  for  election 
of  directors  and  performance  of  other  cor- 
porate acts — Shawnee  Commercial  &  Sav. 
Bank  Co.  v.  Miller,   24  Ohio  Circ.  R.   198. 

68.  Articles  were  filed  with  county  re- 
corder. St.  1862,  p.  110,  §  6,  provides  that 
the  validity  of  incorporation  of  a  company 
doing  business  as  a  corporation  and  claim- 
ing: to  so  act  In  good  faith,  shall  not  be  col- 
laterally attacked — San  Diego  Gas  Co.  v. 
Frame,   137   Cal.   441,    70  Pac.    295. 

69.  Proceeding  by  railroad  to  condemn 
land — Kinston  &  C.  R.  Co.  v.  Stroud,  132 
N.  C.    413. 

70.  De  facto  corporation  (St.  1862,  p.  110, 
§  6) — San  Diego  Gas  Co.  v.  Frame,  137  Cal. 
441,    70    Pac.    295. 

71.  Question  cannot  be  raised  by  plea  In 
abatement  to  an  action  by  the  corporation — 
Marian  Bond  Co.  v.  Mexican  Coffee  &  Rub- 
ber Co.  (Ind.)  C5  N.  E.  748. 

72.  Under  Act  June  19,  1871,  P.  L..  1360, 
a  bill  Is  not  sufficient  which  alleges  that  a 
railroad  is  In  fact  a  private  road  on  the 
property  of  a  manufacturing  company,  which 
did  not  furnish  accommodations  to  the  pub- 
lic— Windsor  Glass  Co.  v.  Carnegie  Co.,  204 
Pa.    459. 

73.  Lincoln  Park  Chapter  R.  A.  M.  v.  Swa- 
tek.    105   111.   App.   604. 

74.  In  defense  to  an  action  to  recover 
Interest  due — Tulare  Irr.  Dist.  v.  Shepherd, 
185  U.  S.  1,  46  Law.  Ed.  773. 

75.  Cannot    be    asserted    that    the    capital 


stock  of  the  corporation  was  not  in  good 
faith  subscribed  for  at  the  time  the  report 
of  the  commissioner  was  made  on  which 
the  charter  was  issued — Gunderson  v.  Illi- 
nois Trust  &  Sav.   Bank,   100  111.   App.   461. 

76.  Card  v.  Moore,   173   N.  Y.   598. 

77.  Otoe  County  Fair  &  Driving  Park 
Ass'n  V.  Doman  (Neb.)  95  N.  W.  327;  Crete 
Bldg.  &  Loan  Ass'n  v.  Patz  (Neb.)  95  N.  W. 
793.  A  borrowing  member  of  a  building  and 
loan  association  is  estopped  to  assert  the 
irregularity  of  its  organization  or  its  lack 
of  power  to  make  loans  and  carry  on  the 
business  of  the  association^Deitch  v.  Staub 
(C.  C.  A.)  115  Fed.  309.  "Where  a  corpora- 
tion begins  business  before  its  full  required 
amount  of  capital  stock  Is  paid  up,  one  to 
whom  It  sells  goods  after  the  amount  is 
properly  paid  In,  cannot  question  the  legal 
existence  of  the  corporation  to  defeat  an 
action  to  recover  the  price.  Attempt  to  de- 
feat the  right  to  maintain  action  in  the 
federal  court  as  a  citizen  of  Mississippi — 
W.  L.  Wells  Co.  v.  Avon  Mills,  118  Fed.  190. 
Those  who  have  executed  a  mortgage  to  a 
corporation  whose  term  of  corporate  exist- 
ence has  expired  cannot  set  up  such  fact 
as  a  defense  to  the  mortgage  in  the  hands 
of  a  new  corporation  to  which  it  has  been 
transferred  (Rev.  St.  1898,  §§  1764,  2024,  sub- 
sec.  21) — Citizens'  Bank  v.  Jones  (Wis.)  94 
N.   W.    329. 

78.  Riemann  v.   Tyroler  &  V.  Vereln,   104 
111.    App.    413. 

79.  Henry  v.  Simanton   (N.  J.  Ch.)   54  Atl. 
153. 


718 


CORPORATIONS. 


§5 


deny  its  corporate  existence/"  and  where  a  judgment  is  obtained  against  a  defend- 
ant as  a  corporation,  a  bill  in  equity  will  not  lie  for  the  purpose  of  imposing  an 
individual  liability  on  the  defendant's  members,  it  appearing  that  it  was  not  a 
corporation  but  a  partnership,*^  and  the  fact  that  the  firm  defended  against  the 
action  as  a  corporation  without  showing  that  they  were  a  partnership  is  not  such 
a  fraud  as  to  charge  them  individually  with  a  judgment.*^ 

Quo  warranto  proceedings  by  the  state. — A  corporation  is  within  the  meaning 
of  the  term,  "person,"  in  a  statute  allowing  an  information,  in  the  nature  of  quo 
warranto,  if  any  person  unlawfully  exercise  any  public  office  or  franchise.*'  Where 
the  powers  of  a  corporation  are  exercised,  the  state  may  determine  the  existence 
of  such  corporation  and  its  right  to  exercise  the  powers  asserted  under  the  laws 
for  the  establishment  of  corporations.**  Only  the  state  may  object  to  failure  to 
observe  provisions  for  the  filing  of  certified  copies  of  the  articles  of  incorporation, 
election  of  officers,  opening  of  an  office,  and  pa}Tnent  of  stock.*' 

Equity  jurisdiction. — Whether  a  company  which  claims  to  be  incorporated  has 
been  legally  organized  may  be  ascertained  by  scire  facias  or  an  information  in  the 
nature  of  a  quo  warranto  at  law,  but  where  there  is  a  corporation  de  facto,  there  is 
no  ground  for  chancery  interposition.** 

§  5.  Promotion  of  corporations;  acts  prior  to  incorporation;  incorporation 
of  partnerships,  etc."  Acting  as  corporation  before  incorporation. — In  the  absence 
of  statute  where  persons  assume  to  act  as  a  corporation  before  such  organization 
is  created,  they  are  liable  on  their  contracts  as  co-partners.** 

In  an  action  in  a  foreign  state  to  enforce  a  statutory  liability  of  officers  and 
directors  for  transaction  of  business  as  a  corporation  without  having  filed  a  cer- 
tificate of  complete  organization  as  required  by  statute  in  the  state  of  organi- 
zation, it  is  not  necessary  to  aver  the  time  the  statute  was  enacted,  but  it  is  suffi- 
cient to  show  that  it  was  in  force  at  the  time  when  the  liability  was  created.*' 

Effect  of  contracts  before  incorporation. — Before  incorporation,  the  corporation 
cannot  be  a  party  to  a  contract,®"  and  contracts  of  promoters  are  not  binding  on  the 
corporation,  unless  it  receives  the  benefits  thereof  or  the  contract  is  adopted  by  it," 


80.  The  terras  of  the  charter  as  to  Its 
principal  office  become  binding — Etowah 
Milling  Co.  v.   Crenshaw,  116  Ga.   406. 

81,  82.  Pittsburg  Sheet  Mfg.  Co.  v.  Beale, 
204    Pa.    85. 

83.  Balllnger's  Ann.  Codes  &  Sts.  §  5780. 
subd.  1 — State  v.  Seattle  Gas  &  Elec.  Co.,  28 
Wash.  488,  68  Pac.  946.  Rev.  Sts.  1898,  §  3466 
State  ex  rel.  Vilter  Mfg.  Co.  v.  Railroad  Co. 
(Wis.)   92  N.  W.  546. 

84.  State  V.  New  Orleans  Debenture  Re- 
demption Co..  107  La.  562. 

85.  Rev.  St.  Mo.  §§  961,  1084,  1283— Ryland 
V.   Hollinger    (C.   C.  A.)    117   Fed.   216. 

8C.  Lincoln  Park  Chapter  R.  A.  M.  v.  Swa- 
tek.  105  111.  App.  604.  Where  a  bill  seeks 
to  have  an  attempted  corporation  declared 
void  or  its  property  taken  away  from  It,  and 
its  stockholders  treated  as  partners,  it  can- 
not deprive  the  bill  of  its  character  as  a 
collateral  attack  on  a  de  facto  corporation 
by  designating  the  efforts  to  acquire  cor- 
porate existence  as  pretended — Terry  v.  Chi- 
cago Packing  &  Provision  Co.,  105  111.  App. 
663. 

87.  Those  who  represent  the  prospective 
members  of  a  corporation  In  the  purchase 
of  real  estate,  secure  most  of  the  subscrip- 
tions to  the  capital  stock  of  the  corpora- 
tion,   get   up   the  prospectus  and   hire   others 


to  assist  In  procuring  subscriptions,  and 
participate  In  the  doing  of  everything  that 
is  done  in  the  creation  and  building  up  of 
the  business  enterprise,  are  promoters  of 
the  corporation,  bound  to  the  exercise  of 
good  faith  toward  Investors — Goodwin  v. 
Wilbur,    104    111.    App.    45. 

88,  89.  Worthlngton  v.  Grlesser,  77  App. 
Div.   (N.  Y.)   203. 

90.  Where  a  recovery  Is  sought  on  an 
offer  made  to  a  corporation  before  the  com- 
pletion of  its  organization,  it  must  be  plead- 
ed either  that  the  corporation  accepted  such 
offer  after  its  organization  or  entered  into 
another  contract  according  to  its  terms — 
Hoiyoke  Envelope  Co.  v.  United  States  En- 
velope Co.  (Mass.)  65  N.  E.  54.  Evidence 
held  sufficient  to  go  to  the  jury  on  the  ques- 
tion of  whether  a  contract  was  entered  into 
before  the  completion  of  the  proceedings 
for  Incorporation — Consumers  Ice  Co.  v.  E. 
Webster   Son   Co.,    79    App.    Div.    (N.    Y.)    350. 

91.  Contract  by  promoter  of  a  bank  for 
the  purchase  of  a  burglar  proof  safe  and 
vault  door — Bank  of  Forest  v.  Ortjill  Bros. 
&  Co.  (Miss.)  34  So.  325.  It  is  not  a  defense 
to  an  action  on  a  note  that  it  was  entered 
into  as  a  liability  of  a  corporation  to  be 
organized  and  that  plaintiff  had  neglected 
to    carry    out    an    agreement    by    which    he 


LIABILITIES    OF   PROMOTERS 


719 


after  ratification  the  promoters  are  no  longer  personally  liable.'*  A  corporation 
cannot  recover  on  a  subscription  for  expenses  to  be  incurred  prior  to  its  organi- 
zation, unless  it  has  become  entitled  thereto  by  assignment,  succession,  or  other- 
wise.^®  If  a  corporation  act  on  the  negotiations  of  promoters,  evidence  of  their 
acts  may  be  shown  as  against  the  corporation  in  so  far  as  they  would  be  competent 
against  the  promoters.®*  Promoters  of  a  corporation  are  not  personally  liable  on 
a  contract  which  they  make  for  the  corporation,  though  they  fail  to  bind  it."* 
Though  it  has  never  chosen  officers,  the  corporation  is  not  prevented  from  having 
possession  of  property  relieving  its  corporators  from  liability  for  a  personal  judg- 
ment, in  an  action  for  possession.®"  After  the  corporation  has  come  into  exist- 
ence, the  stockholders  or  promoters  are  not  liable  on  its  contracts  either  individu- 
ally or  as  partners.®^  In  an  action  on  such  a  contract  if  it  is  alleged  that  the 
articles  were  signed  on  or  about  a  certain  day,  the  allegation  will  be  construed  to 
mean  on  or  before.®' 

Wliere  one  organizing  a  corporation  conveys  to  it  property  subject  to  a  vendor's 
lien  and  receives  in  return  a  mere  interest  in  the  land  as  a  stockholder,  it  will  be 
inferred  that  it  was  the  intention  that  primary  liability  for  the  debts  against  the 
property  should  follow  the  property,  especially  where  the  promoter  as  president 
of  the  corporation  in  making  a  statement  of  its  assets  and  liabilities  includes  such 
debts  therein.*® 

Fraud  of  promoters. — Those  who  become  stockholders  may  rely  on  the  good 
faith  of  the  promoters  and  may  assume  that  they  have  not  dealt  with  the  organi- 
zation in  such  manner  as  to  derive  personal  gain.^  Promoters  are  liable  to  sub- 
scribers to  corporate  stock  for  their  fraudulent  acts  in  procuring  subscriptions.* 
The  remedy  is  not  restricted  to  the  corporation.'  They  are  bound  not  to  conceal, 
from  those  whom  they  seek  to  interest  in  the  proposed  corporation,  any  fact  which 
materially  affects  the  value  of  the  property.*  Statutory  provisions  against  the 
issue  of  any  stock  or  certificate  of  stock  except  in  return  for  money,  labor,  or 
property  to  its  par  value  actually  delivered  does  not  prevent  equitable  relief  against 
promoters  defrauding  the  corporation,  though  sought  by  persons  who  have  sub- 


was  to  secure  payment  from  the  corporation 
unless  it  is  alleged  tliat  the  assumption  of 
the  note  by  the  corporation  was  on  consid- 
eration and  plaintiff  had  knowledge  thereof 
— Bohn  Mfg.  Co.  v.  Reif  (Wis.)  93  N.  W. 
466. 

92.  Esper  v.  Miller  (Mich.)   91  N.  W.  613. 

93.  Subscription  to  a  fund  to  be  used  in 
taking  out  certain  patents — Arnold  Mono- 
phase Electric  Co.  v.  Chew,  21  Pa.  Super. 
Ct.   407. 

94.  Raegener  v.  Brockway,  58  App.  Div. 
(N.  Y.)  166. 

95.  Durgln  V.  Smith  (Mich.)  94  N.  W. 
1044. 

06.  Grand  Rapids  School  Furniture  Co. 
V.  Grand  Hotel  &  Opera  House  Co.  (Wyo.) 
70   Pac.    838. 

97.  In  an  action  to  hold  incorporators 
liable  as  partners  on  a  note  which  the  cor- 
poration had  indorsed,  it  must  be  alleged 
that  the  indorsement  was  before  the  issue 
of  a  certificate  by  the  secretary  of  state — 
Ryland  v.  Hollinger  (C.  C.  A.)  117  Fed. 
216. 

98.  See  for  construction  of  pleading  aa  to 
the  allegation  of  indorsement,  prior  to  the 
issuance  of  a  certificate — Ryland  v.  Hollinger 
(C.    C.   A.)    117    Fed.    216. 


99.     Fox  V.  Robbing  (Tex.  Civ.  App.)  70  S. 

W.   597. 

1.  Shawnee  Commercial  &  Savings  Bank 
Co.  V.  Miller,  24  Ohio  Cir.  R.  198. 

2.  Hayden  v.  Green  (Kan.)  71  Pac.  236. 
Subscribers  may  rescind  a  stock  subscrip- 
tion and  recover  their  subscriptions,  sue  in 
equity  for  a  rescission  or  for  an  accounting, 
and  charge  the  promoter  as  trustee  of  the 
profits  fraudulently  obtained  by  him — Second 
Nat.  Bank  v.  Greenville  Screw-Point  Steel 
Fence  Post  Co.,  23  Ohio  Cir.  R.  274.  Evi- 
dence held  to  show  misrepresentations  by 
the  promoters  of  a  corporation  as  to  stock 
subscriptions  by  other  parties  and  as  to  the 
value  of  certain  abstract  books  which  were 
to  form  the  entire  capital  of  the  new  cor- 
poration— Hess  V.  Draffen  (Mo.  App.)  74  S. 
W.    440. 

3.  Where  the  promoters  of  a  corporation 
make  misrepresentations  as  to  the  value 
of  certain  property,  which  is  to  be  the  capital 
of  the  corporation,  for  the  purpose  of  in- 
ducing the  making  of  stock  subscriptions, 
the  subscribers  to  the  stock  have  a  cause 
of  action  for  deceit,  and  the  fraud  is  not 
one  on  the  corporation  of  which  it  alone 
may  take  advantage — Hess  v.  Draffen  (Mo. 
App.)    74    S.    W.    440. 

4.  Goodwin   v.   Wilbur,   104   111.   App.   46. 


720 


CORPORATIONS. 


S5 


scribed  for  stock  for  less  than  par.'  Where  a  false  subscription  list  enables  the 
perpetration  of  fraud,  the  loss  which  naturally  results  therefrom  is  the  measure  of 
damages.  If  the  stock  has  no  market  value,  tliere  having  been  no  sales,  the  assets 
and  liabilities  of  the  corporation  may  be  resorted  to  in  determining  the  damages.® 

Dealings  with  corporation. — The  corporation  may  pay  its  promoters  for  serv- 
ices in  procuring  sales  of  stock.''  Promoters  who  own  the  entire  stock  of  a  cor- 
poration may  subscribe  for  an  additional  issue  of  stock  and  pay  for  it  by  the  trans- 
fer to  the  corporation  of  property  which  they  have  previously  purchased.*  The 
promoters  are  not  liable  to  subsequent  purchasers  of  stock  as  standing  in  a  fiduciary 
relation  if  at  the  time  they  purchased  the  property  all  the  stock  was  owned  by 
them  though  some  was  in  the  name  of  their  agents  or  employes."  If  stock  is 
illegally  voted  to  promoters,  its  value  when  it  is  sought  to  be  recovered  by  the 
corporation  should  be  regarded  as  of  the  time  it  acquired  a  recognized  market  value 
and  not  as  of  the  time  the  first  sale  was  made.  The  promoters  may  be  charged  with 
interest  from  the  time  such  value  is  acquired  though  an  action  by  the  receiver 
to  enforce  the  liability  was  temporarily  suspended,  if  defendants  not  being  parties 
were  not  prevented  from  surrendering  stock  or  paying  in  its  value.*"  Actions  by 
a  receiver  against  the  promoters  of  a  corporation  to  recover  sums  due  on  stock 
which  it  is  alleged  they  obtained  wrongfully  at  the  time  it  was  organized  are  not 
affected  by  a  sale  of  the  realty  of  the  corporation  under  a  mortgage  and  its  pur- 
chase by  a  new  company  which  gave  its  stock  for  the  stock  and  bonds  of  the 
old." 

Secret  profits. — Promoters  stand  in  a  trust  relation  toward  the  stockholders 
of  a  corporation  from  the  time  at  which  they  begin  to  act  in  its  organization,  and 
must  make  as  full  a  disclosure  to  the  managers  of  the  company  and  the  sub- 
scribers to  its  stock  as  required  of  other  agents  for  the  purchase  of  property.*- 
A  person  may  form  a  corporation  to  which  he  may  sell  his  property  though  he 
thereby  makes  a  profit,  there  being  no  false  representation,*^  but  in  case  of  mis- 
representation, the  promoter  is  liable  to  other  stockholders  as  a  trustee,**  though 
a  stockholder  who  takes  an  active  interest  in  securing  other  stockholders  is  not 
liable  jointly  with  the  promoter  on  a  mere  showing  of  facts  causing  a  suspicion 
of  his  implication  to  arise.*''  Promoters  of  a  corporation  cannot  be  allowed  a  secret 
profit  on  property  purchased  by  them,  which  they  turn  over  to  the  corporation  in 
payment  of  their  stock  subscriptions.*'  The  organizers  of  a  corporation  to  con- 
solidate other  corporations  who  own  its  entire  stock  do  not  stand  in  a  trust  relation 


6.  Rev.  St.  1898,  §§  1751,  1753,  1773,  and 
4436 — Pletsch   v.   Krause    (Wis.)    93   N.   W.    9. 

6.  Goodwin  v.  "Wilbur,   104   111.   App.   45. 

7.  Ross  V.  Sayler,  104  111.  App.  19. 

8.  Transfer  by  promoters  of  a  corpora- 
tion organized  for  the  purpose  of  consolidat- 
ing breweries  or  brewing  properties  which 
they  have  previously  purchased,  valid — 
Tompkins  v.  Sperry,  Jones  &  Co.  (Md.)  54 
Atl.   254. 

0.  Tompkins  v.  Sperry,  Jones  &  Co.  (Md.) 
54   Atl.   254. 

10.  East  Tenn.  Land  Co.  v.  Leeson,  183 
Mass.    37;    Same   v.   Hopewell,   Id. 

11.  Central  Trust  Co.  v.  Land  Co.,  116 
Fed.    743;   Schumacher   v.    Same,   Id. 

12.  Promoters  held  accountable  to  a  cor- 
poration for  profits  obtained  In  the  sale  of 
furniture  and  fixtures  to  It  at  an  exorbitant 
price — Shawnee  Commercial  &  Savings  Bank 
Co.  V.  Miller,  24  Ohio  Cir.  R.  198. 


13.  Second  Nat.  Bank  v.  Greenville  Screw- 
Point  Steel  Pence  Post  Co.,  23  Ohio  Cir.  R. 
274. 

14.  Purchase  of  a  patent  right  for  $3,000. 
sale  thereof  to  the  corporation  for  $15,000. 
on  representations  that  that  was  the  lowest 
for  which  it  could  be  obtained  from  the  In- 
ventor, and  that  the  promoter  was  making 
no  profit  other  than  such  as  should  accrue 
to  the  stockholder — Second  Nat.  Bank  v. 
Greenville  Screw-Point  Steel  Fence  Post  Co.. 
23   Ohio   Cir.    R.   274. 

15.  Second  Nat.  Bank  v.  Greenville  Screw- 
Point  Steel  Fence  Post  Co.,  23  Ohio  Cir.  R. 
274. 

16.  They  may  be  compelled  to  account  to 
creditors  of  the  corporation  or  the  corpora- 
tion for  the  difference  between  the  pur- 
chase price  of  the  property  and  the  sum 
for  which  they  turned  it  in — Central  Trust 
Co.  V.  Land  Co..  116  Fed.  743;  Schumacher 
v.    Same,    Id. 


§  7A 


CITIZENSHIP.     POWERS. 


721 


toward  it  in  their  purchase  of  the  corporate  properties  which  are  to  be  consolrdated, 
and  if  they  exchange  such  properties  for  stock  and  bonds  of  the  new  corporation  in 
excess  of  the  amount  fixed  by  the  original  consolidation  agreement,  they  cannot  be 
compelled  by  the  corporation's  receiver  to  account  for  such  excess.^^ 

Creditors  who  seek  to  hold  the  organizers  of  a  corporation  liable  for  the  differ- 
ence between  the  value  of  property  which  they  transferred  to  it  and  the  stated 
value  of  the  shares  which  they  received  in  exchange  must  show  a  fraudulent  intent 
as  to  them,  and  an  action  on  the  faith  of  a  belief  that  the  stock  so  issued  was  fully 
paid.^* 

Incorporation  of  partnership. — On  incorporation  of  a  partnership  for  the 
purpose  of  carrying  on  business,  it  will  be  presumed  that  the  rights  held  by  the 
partnership  have  been  assigned  to  the  corporation,  if  the  corporation  is  so  treated.^' 

§  6.  Citizenship  and  residence  or  domicile  of  corporations.^^ — The  charter  and 
not  the  actual  management  of  the  company  will  determine  the  location  of  its 
principal  office.^^  A  corporation  does  not  become  a  nonresident  by  reason  of  the 
fact  that  its  active  place  of  business  is  outside  the  state  for  certain  seasons  of  the 
year,  nor  does  such  fact  cause  it  to  violate  a  statutory  requirement  that  articles 
of  incorporation  state  the  city,  town,  or  locality  in  which  is  the  corporation's 
particular  place  of  business.^'' 

A  corporation  created  and  organized  under  federal  laws  is  a  domestic  cor- 
poration in  the  state  in  which  it  transacts  business.''^ 

§  7.  Powers  of  corporations.  A.  In  general. — Whatever  may  be  fairly  and 
reasonably  regarded  as  incidental  to  or  consequential  on  those  things  which  the 
legislature  has  authorized  ought  not,  unless  expressly  prohibited,  be  held  by  judi- 
cial construction  to  be  ultra  vires.^*  Enumeration  of  powers  does  not  prevent  a 
corporation  from  exercising  powers  incidental  to  its  substantial  purposes.^^  Per- 
sons dealing  with  the  corporation  are  bound  to  take  notice  of  its  charter  powers.^® 
Irregular  acts  of  a  corporation  which  are  within  its  general  powers,  if  not  illegal, 
immoral  or  against  public  policy,  are  merely  voidable  and  subject  to  ratification 
by  the  stockholders.^^ 


17.  On  an  arrangement  by  the  promoter 
of  a  corporation  to  purchase  another  cor- 
poration, the  object  being  to  consolidate  It 
with  other  corporate  properties  Into  a  new 
corporation,  the  contract  to  be  inoperative 
in  case  certain  specified  properties  were  not 
secured  to  go  into  the  combination,  if  on 
failure  of  the  combination  the  promoter 
purciiases  the  property  individually,  he  does 
not  hold  it  in  a  trust  relation  for  the  con- 
solidated corporation  if  there  is  no  agree- 
ment that  the  purchase  was  on  its  behalf — 
Tompkins  v.  Sperry,  Jones  &  Co.  (Md.)  54 
Atl.    254. 

IS.     Taylor  v.  Walker,   117  Fed.   737. 

19.  Assignment  of  lease  held  by  partner- 
ship will  be  presumed  in  suit  by  corporation 
thereon — B.  Roth  Tool  Co.  v.  Champ  Spring 
Co.,    93   Mo.   App.   530. 

20.  Venue  of  actions,  see  post,  §  10;  see 
also  article  "Foreign  Corporations."  Citizen- 
ship for  purpose  of  federal  Jurisdiction,  see 
"Jurisdiction;"    "Removal    of    Causes." 

The  settled  doctrine  is  that  a  corporation, 
for  the  purposes  for  which  it  may  be  con- 
sidered a  citizen,  resident,  or  Inhabitant,  is  a 
citizen,  resident,  or  inhabitant  of  the  country 
or  state  by  or  under  whose  laws  it  was  cre- 
ated or  organized,  and  that  it  cannot  be  a 
citizen,  resident,  or  inhabitant  of  any  other 


country   or  state;    and   that   it   can   make  no 

difference  whatever,  in  the  application  of  this 
doctrine,  that  the  members  or  stockholders 
of  the  corporation  are  citizens  and  residents 
of  some  other  country  or  state  than  that  to 
whose  laws  it  owes  its  existence,  or  that  the 
corporation  is  engaged  in  business  in  some 
other  country  or  state  with  its  express  or  im- 
plied consent — Clark  &  Marshall,  Corpora- 
tions, Vol.  I,  p.  352. 

21.  For  the  purpose  of  establishing  the 
place  of  bringing  a  suit  in  Georgia  against 
a  railroad  company  for  injuries  occasioned 
in  a  foreign  state — Atlanta,  K.  &  N.  R.  Co.  v. 
Wilson    (Ga.)    42    S.   E.   356. 

22.  Hastings  v.  Anacortes  Packing  Co.,  29 
Wash.   224,   69  Pac.   776. 

23.  So  held  in  a  proceeding  to  enforce  a 
transfer  tax  against  national  bank  stock — 
In  re  Cushing's  Estate,  40  Misc.  (N.  T.)  505. 

24.  Dittman  v.  Distilling  Co.  of  America 
(N.  J.  Eq.)   54  Atl.   570. 

25.  A  church  society  may  take  a  legacy 
charged  with  payment  of  an  annuity — Sher- 
man V.  American  Congregational  Ass'n  (C. 
C.   A.)    113    Fed.    609. 

26.  Chicago  Union  Traction  Co.  v.  City  of 
Chicago,   199   111.   484,   59   L.  R.  A.   631. 

27.  Hatch  V.  Mining  Co.,  25  Utah,  405,  71 
Pac.    865. 


Cur.  Law — 46. 


722 


CORPORATIONS. 


§  7B 


Quasi  public  corporations  can  exercise  no  powers  not  expressly  conferred  by 
statute,  or  necessarily  implied,  for  the  purpose  of  carrying  out  powers  expressly 
granted."  Eights  to  use  or  interfere  with  a  highway  are  to  be  regarded  as  a  special 
franchise  and  are  not  to  be  derived  from  a  general  franchise  to  exercise  corporate 
powers."^  A  company  incorporated  to  transport  natural  gas  is  not  entitled  to  main- 
tain a  telegraph  or  telephone  line  along  its  right  of  way  as  a  necessity  in  carrying  on 
the  purposes  of  its  corporation.^"  The  fact  that  the  corporation  is  authorized  to 
make  public  exhibitions  does  not  allow  it  to  obstruct  city  streets."  The  con- 
duct of  a  relief  society  is  not  ultra  vires  a  railroad  corporation.^'^ 

(§7)  B.  Power  to  take  and  hold  property. — A  deed  to  a  corporation  which 
has  power  to  hold  real  estate  for  any  purpose  passes  the  title  of  the  grantor.^' 
Statutes  which  define  the  powers  of  a  corporation  within  the  limits  of  its  title  to 
realty  do  not  confer  a  title  on  it.^*  An  authority  to  hold  property  free  from  taxa- 
tion to  a  certain  amount  limits  not  only  the  amount  of  property  taxable  but  the 
amount  which  may  be  held.^'  Under  a  power  to  construct,  keep,  and  operate  rail- 
road lines,  roads  already  constructed  may  be  purchased.'® 

A  statutory  limitation  on  the  period  of  holding  real  property,  except  such  as 
iiecessary  to  the  corporate  business,  does  not  apply  to  a  building  but  partially  oc- 
cupied by  the  corporation.'^  A  corporation  with  power  to  purchase  realty  may  take 
a  lease  for  a  term  in  excess  of  its  corporate  life  and  though  the  aggregate  rental  ex- 
ceeds its  authorized  indebtedness.'* 

(§7)  C.  Power  to  transfer  or  incumber  property  and  franchises. — A  corpora- 
tion while  solvent  and  a  going  concern  holds  its  property  like  an  individual  free 
from  the  touch  of  its  general  creditors,  and  may  dispose  of  the  same  as  it  deems  best 
subject  to  the  provisions  of  its  charter  and  those  other  restraints  on  the  convey- 
ance of  property  which  the  law  imposes  alike  on  corporations  and  individuals.^® 
Persons  not  creditors  cannot  complain  of  the  sale  by  the  corporation  of  its  property 
to  another  corporation.*"  Where  a  corporation  has  power  to  use  the  streets  for 
polos  and  wires  for  the  operation  of  a  street  railroad,  it  cannot  transfer  such  right  to 
one  desiring  to  use  it  for  electric  lighting.*^  Where  a  corporation  is  prevented  from 
using  certain  property  by  the  fact  that  it  has  no  right  to  carry  on  the  business  to 
which  it  is  adapted,  it  may  transfer  such  property  free  from  its  disability.*^ 

Power  to  lease. — Wliere  the  corporation  has  power  to  sell  its  property,  it  may 
lease  for  the  purpose  of  use  in  an  incidental  business.*'  A  railroad  may  lease  super- 
fluous property  to  a  public  warehouse  company.**  The  lease  may  be  for  such  a  long 
term  of  years  as  to  virtually  effect  a  transfer  of  the  fee.*' 


28.  A  corporation  organized  under  gen- 
eral statutes  to  supply  water  to  a  municipal- 
ity and  Its  inhabitants  cannot  make  a  sale 
of  its  property  and  franchise  to  another  cor- 
poration or  execute  a  lease  covering  the 
term  of  Its  existence,  notwithstanding  the 
city  consents — New  Albany  Waterworks  v. 
Louisville  Banking  Co.  (C.  C.  A.)  122  Fed. 
776. 

29.  Right  to  operate  a  street  railway — 
People  ex  rel.  Metropolitan  St.  R.  Co.  v.  State 
Board   of  Tax  Com'rs,   174   N.   Y.   417. 

30.  Woods  V.  Greensboro  Natural  Gas  Co., 
204   Pa.   606. 

31.  City  of  Richmond  v.  Smith  (Va.)  43 
S.    E.    345. 

32.  State  ex  rel.  Sheets  v.  Railway  Co. 
(Ohio)    67  N.  E.  93. 

S3.  Springer  v.  Chicago  Real  Estate  L.  & 
T.  Co.,  102  111.  App.  294. 


34.  Construing  Sts.  1870.  c.  110.  5  2  and 
Sts.  1896,  c.  299  in  proceedings  to  secure  the 
removal  of  buildings  on  public  lands — At- 
torney General  v.  Vineyard  Grove  Co.,  181 
Mass.   507. 

35.  Appeal  of  Eliot.  74  Conn.  586. 

36.  Recital  of  such  a  power  in  a  corporate 
mortgage  does  not  invalidate  it — City  of 
Lincoln  v.  Lincoln  St.  Ry.  Co.  (Neb.)  93  N. 
W.    766. 

37.  Const,  art.  265 — State  v.  Warehouse 
Co.,   109  La.   64. 

38.  Brown  v.  Schleler  (C.  C.  A.)  118  Fed. 
981. 

39.  New  Hampshire  Sav.  Bank  v,  Rlchey 
(C.   C.  A.)    121   Fed.   956. 

40.  Goodwin  v.  Lumber  Co.,  109  La.  1050. 

41.  City  of  Carthage  v.  Carthage  Light 
Co.,    97   Mo.   App.    20. 

42-44.     State  V.  Warehouse  Co.,  109  La.  64. 


§  7D 


POWER  TO  CONTRACT. 


"23 


A  power  existing  in  a  corporation  under  its  charter  or  the  general  act  govern- 
ing corporations  to  lease  the  property  may  be  exercised  as  other  general  powers.'** 

Pledge  of  credit. — A  corporation  may  pledge  its  credit  for  the  purpose  of 
enabling  one  to  whom  it  has  sold  goods  to  continue  business  and  thereby  make  pay- 
ment.*^ Where  a  company  has  power  to  raise  money  by  its  notes  when  authorized 
by  the  board  of  directors  as  required  by  a  by-law,  the  transaction  is  not  rendered 
ultra  vires  by  the  fact  that,  to  the  holder  of  its  paper  for  money  loaned,  the  com- 
pany appeared  to  be  an  accommodation  indorser.*^ 

(§7)  D.  Powers  with  respect  to  contracts. — The  contracts  of  a  corporation 
incident  to  its  existence  are  subject  to  the  dissolution  of  the  corporate  existence  or 
the  determination  of  the  special  franchises  by  limitation,  by  judicial  decree  or  by 
repeal.*®  An  implied  contract  may  be  binding  on  a  corporation.^"  A  note  may  be 
given  for  an  existing  debt,  though,  at  the  time  the  note  is  given,  the  indebtedness 
of  the  corporation  exceeds  that  permitted  it  by  its  articles  of  incorporation."^^ 

Restraint  of  trade  and  violation  of  public  policy.^^ — A  contract  by  stockholders 
to  maintain  a  person  for  a  stated  length  of  time  as  cashier  of  the  bank  is  not 
against  public  policy  where  not  shoTVTi  to  have  been  entered  into  in  bad  faith  and 
against  the  interests  of  the  bank."'  Where  a  corporation's  employe  transferred 
an  equitable  interest  in  certain  of  his  stock  to  the  corporation,  he  may,  without 
entering  into  a  contract  in  restraint  of  trade,  agree  not  to  engage  in  a  competing 
business  for  ten  years  or  disclose  the  secret  processes  used  by  the  corporation  in 
its  business."* 

Particular  contracts.^^ — A  corporation  cannot  become  a  partner,"®  though  it 
may  contract  to  share  the  profits  of  contracts."^  A  corporation  may  contract  to 
pay  an  employe  a  percentage  of  the  profits."*  A  manufacturing  and  trading  cor- 
poration cannot  become  an  accommodation  indorser."®  A  lumber  company  may  by 
its  salesmen  enter  into  a  bond  securing  the  performance  of  a  contract  by  one  to 
whom  it  sells  lumber.^"  A  mercantile  corporation  may  purchase  a  claim  against  a 
third  person  secured  by  a  lien  if  in  good  faith  and  for  its  own  protection.®^     The 


45.  Dickinson  v.  Traction  Co.  (C.  C.  A.) 
119   Fed.   871. 

46.  Vote  of  majority  of  fhe  stockholders 
or  board  of  directors — Dickinson  v.*  Traction 
Co.,    114    Fed.    232. 

47.  See  post,  §  16-C  for  validity  of  corpo- 
rate bonds  and  mortgages  and  rights  incident 
thereto. 

Hess  V.  Sloane.  66  App.  DIv.  (N.  Y.)  522. 

48.  Beacon  Trust  Co.  v.  Souther  (Mass.) 
67    N.    E.    345. 

49.  Contracts  relating  to  loans,  supplies, 
royalties  and  services — Manning  v.  Tele- 
phone Co.,   18  App.  D.  C.   191. 

50.  Lowe  V.   Ring,    115   Wis.    575. 

51.  Marshall  Field  Co.  v.  Oren  RufCcorn 
Co.,   117   Iowa,   157. 

52.  See  generally  articles  "Contracts;" 
"Combinations  and  Monopolies." 

53.  Bonta  v.  Gridley,  77  App.  Div.  (N.  Y.) 
33. 

54.  S.  Jarvis  Adams  Co.  v.  Knapp  (C.  C. 
A.)    121    Fed.    34. 

55.  A  contract  by  a  trust  company  to  is- 
sue certificates  of  deposit  transferring  to 
another  trust  company  as  trustee,  real  es- 
tate mortgages,  stocks,  bonds  and  tax  cer- 
tificates as  security,  which  the  receiving 
company  agreed  to  rate  and  hold  at  their 
actual  worth  according  to  Its  best  judgment, 
certify  on  each  certificate  of  deposit  that  it 


was  so  secured  and  discharge  all  the  duties 
imposed  on  it,  is  not  a  contract  of  guaranty 
by  the  receiving  company  of  the  actual 
worth  of  the  security  and  on  that  account 
ultra  vires  a  loan,  trust  and  guaranty  com- 
pany— Smith  V.  Bank  of  New  England  (N. 
H.)    54    Atl.    385. 

56.  Geurlnck    v.    Alcott,    66    Ohio   St.    94. 

57.  L.  J.  Mestier  &  Co.  v.  A.  Chevalier 
Pavement  Co.,  108  La.  562.  Contract  between 
a  corporation  leasing  an  opera  house  and 
one  wlio  agrees  to  manage  the  same  is  not 
a  partnership  contract  and  ultra  vires, 
though  the  manager  receives  a  percentage  of 
the  profits  in  addition  to  a  fixed  salary  and 
in  the  event  of  his  removal  by  the  corpora- 
tion is  to  receive  only  his  Interest  in  the 
profits — Markowitz  v.  Greenwall  Theatrical 
Circuit  Co.  (Tex.  Civ.  App.)  75  S.  W.  74. 

58.  Not  a  division  of  cumulated  profits 
belonging  to  the  stockholders.  Corp.  Act,  § 
47 — Bennett  v.  Millville  Imp.  Co..  67  N.  J. 
Law,    320. 

59.  Preston  v.  Northwestern  Cereal  Co. 
(Neb.)   93  N.  W.  136. 

60.  Where  there  is  a  custom  to  do  so,  a 
plea  of  ultra  vires  to  an  action  on  the  bond 
cannot  be  sustained — Central  Lumber  Co.  v. 
Kelter,    201    111.    503. 

61.  Mahoney  v.  Butte  Hardware  Co.,  27 
Mont.   463.  71  Pac.  674. 


724 


CORPORATIONS. 


fact  that  goods  purchased  may  not  be  applicable  to  use  in  the  articles  manufactured 
by  the  corporation  does  not  of  necessity  render  the  purchase  ultra  vires.®^  A  cor- 
poration having  power  to  manufacture  fertilizers  cannot  engage  in  the  purchase 
and  sale  of  a  fertilizer  manufactured  by  other  persons,  and,  a  contract  for  the 
purchase  thereof  being  ultra  vires,  the  corporation's  notes  given  in  connection 
therewith  are  void.®^  The  fact  that  the  corporation  leases  a  building  to  be  used 
as  a  hotel  for  a  rental  established  in  part  by  a  percentage  of  the  income  docs  not 
cause  it  to  engage  in  the  hotel  business.^*  The  issuance  of  a  certificate  of  deposit  for 
borrowed  money  does  not  show  that  the  corporation  is  engaged  in  the  banking 
business." 

Mode  of  execution  of  contract.^^ — The  stockholders  cannot  convey  or  encumber 
the  corporate  property  in  their  own  name.®^  An  action  will  not  lie  against  the 
corporation  on  a  contract  under  seal  executed  by  an  individual.*^  The  uninten- 
tional omission  of  the  ofiicer's  official  designation  is  not  material  where  the  officer 
having  authority  signs  his  name  with  that  of  the  corporation.®^  A  letter  signed  by 
a  person  as  secretary  of  corporation  is  prima  facie  evidence  of  a  contract  expressed 
therein.''"  The  fact  that  a  corporation's  manager  mentions  the  corporation's  name 
and  then  his  own  in  beginning  a  telephone  conversation  justifies  a  belief  that  deal- 
ings are  with  the  corporation.^^  Consent  of  a  corporation  to  an  infringement  on 
its  franchise  cannot  be  established  by  a  paper  signed  by  the  vice-president  alone 
and  without  the  corporate  seal.''-  Where  the  question  as  to  whether  letters  were 
written  by  the  president  on  behalf  of  the  corporation  is  controverted,  it  may  be 
shown  that  the  company's  name  was  signed  to  some  of  them  without  the  presi- 
dent's knowledge.''' 

Necessity  of  seal. — ^Where  not  required  by  statute,  the  corporate  seal  is  not 
essential  to  the  validity  of  a  contract.''*  The  affixing  of  the  seal  is  prima  facie 
showing  that  the  act  is  of  the  corporation.''^  It  does  not  supply  want  of  the  cor- 
porate signature.^* 

Commercial  paper.'''' — Where  a  note  is  signed  in  the  corporation's  name  *T)}^'' 
certain  persons  who  are  its  officers,  the  corporation  and  officers  as  individuals  are 


G2.  Chicago  Pneumatic  Tool  Co.  v.  H.  W. 
Johns  Mfg.   Co.,   101   111.  App.    349. 

63.  Richmond  Guano  Co.  v.  Farmers'  Cot- 
ton Seed  Oil  Mill  &  Ginnery,   119  Fed.   709. 

C4.  Nantasket  Beach  Steamboat  Co.  v. 
Shea,  182  Mass.  147;  Same  v.  Hinckel  Brew- 
ing Co.,  Id.;  Same  v.  Preston.   Id. 

e."!.  Rendering  directors  liable  to  the  hold- 
er of  the  certificate  as  having  exceeded  their 
powers — Dietrich  v.  Rothenberger  (Ky.)  75 
S.   W.    271. 

66.  See  post,  §  15  K-M,  for  representation 
of  corporation  by  officers  and  agents  in  gen- 
eral.— An  assignment  of  a  note  and  mort- 
gage executed  by  the  fourth  vice-president 
of  a  corporation,  attested  by  the  corporate 
seal,  '.s  prima  facie  the  assignment  of  the 
oorporation,  and  the  burden  of  proof  of  the 
contrarv  is  on  the  person  attacking  it — Wil- 
son V.  Neu  (Neb.)  95  N.  "W.  502.  Evidence 
held  sufficient  to  go  to  the  jury  as  to  the 
sufficiency  of  a  transfer  of  a  chattel  mort- 
gage by  a  corporation  to  plaintiff — Clem  v. 
Wise.  133  Ala.  403.  A  letter  ratifying  its 
agent's  signature  to  a  bond  for  the  comple- 
tion of  the  contract  Is  admissible  to  show 
execution  of  the  contract  by  the  corpora- 
tion— Central  Lumber  Co.  v.  Kelter,  201  111. 
503. 

67.  Home  Fire  Ins.  Co.  v.  Barber  (Neb.) 
93   N.  W.  1024. 


68.  Congress  Construction  Co.  v.  Brewing 
Co.,   182  'Mass.    355. 

69.  St.  Clair  v.   Rutledge,  115  Wis.  583. 

70.  Employment  of  attorneys — Union 
Surety  &  Guaranty  Co.  v.  Tenney,  102  111. 
App.    95. 

71.  Sutter  V.  Moore  Inv.  Co.,  30  Wash.  333. 
70    Pac.    746. 

72.  Agreement  to  allow  a  railroad  com- 
pany to  cross  a  street  railroad's  tracks — 
Ballston  Terminal  R.  Co.  v.  Railway  Co.,  76 
App.  Div.    (N.  Y.)   184. 

73.  Sigel-Campion  Live  Stock  Commission 
Co.  V.  McMurphy  (Kan.)   71  Pac.  256. 

74.  St.   Clair  v.   Rutledge.    115   Wis.    583. 

75.  Assignment  executed  by  the  presi- 
dent and  attested  by  the  secretary — Roth  v. 
Continental   Wire   Co.,    94   Mo.   App.    2:?6. 

76.  Execution  of  a  deed — Hutchins  v. 
Barre  AVater  Co.,   74  Vt.   36. 

77.  A  telegram  in  response  to  a  request 
of  the  president  of  a  corporation  for  au- 
thority to  draw  a  draft  which  authorizes* 
the  recipient  to  draw  for  feed  bills  due  "on 
all  cattle  In  which  we  placed  you  in  charge" 
shows  that  the  agency  is  for  the  corporation 
and  not  for  the  president  individually — 
White  City  State  Bank  v.  Bank,  90  Mo.  App. 
396. 


§   7K 


EXECUTION  OF  CONTRACTS.     POWER  TO  HOLD  STOCK. 


725 


bound,  the  promise  being  that  "we  the  nndersigned  promise  to  pay.'^'^®  Where 
the  officer  signs  and  follows  his  name  with  the  word  "president"  and  the  style  of 
the  corporation,  it  must  be  shown  that  he  acted  for  the  corporation  in  order 
that  the  note  be  not  regarded  as  his  individually,^'  but  the  signature  of  a  note 
by  the  corporation  "per"  certain  persons  as  general  manager  and  as  secretary  does 
not  render  the  officers  personally  liable,  notwithstanding  in  the  body  of  the  note 
are  the  words  "I  or  we  promise"  and  the  word  "per"  applies  to  both  officers.*" 
The  execution  of  a  note  by  a  corporation  is  not  sufficiently  proved  by  evidence 
that  the  corporate  signature  was  affixed  by  a  person  who  was  president,  and  that 
the  president  and  secretar3r's  name  followed  that  of  the  corporation,  but  there  was 
no  showing  of  authority  to  execute  the  note  in  question  or  of  a  holding  out  of 
the  president  and  secretary  as  possessing  such  authority,  nor  was  it  shown  that 
any  consideration  passed  to  the  corporation.®^  Where  with  authority,  a  draft 
is  drawn  on  the  treasurer  of  a  corporation  in  favor  of  a  third  person  for  a  debt 
due  him  from  the  corporation,  it  operates  as  a  note  of  the  corporation.®^ 

In  an  action  against  a  corporation  on  its  indorsement  of  a  note  executed 
by  its  president,  evidence  of  the  genuineness  of  the  maker's  signature  is  com- 
petent, and  after  a  showing  of  the  genuineness  of  the  maker's  signature  and  of  the 
authority  of  the  officer  to  indorse  and  of  the  giving  of  value  by  plaintiff,  he  is  to 
be  regarded  as  holder  in  the  due  course  of  business.®' 

Conveyances. — Though  the  statutes  require  that  a  corporate  conveyance  must 
be  by  an  agent  appointed  for  such  purpose,  the  conveyance  must  run  in  the  name 
of  the  corporation.®*  Proof  of  authority  of  individuals  who  have  made  acknowl- 
edgments representing  themselves  as  officers,  may  be  required  in  proceedings  in 
wrhich  the  conveyances  are  involved.®'  A  waiver  of  a  right  to  forfeit  interests  in  real 
property  need  not  be  under  the  corporate  seal  and  signed  by  the  president  and 
secretary.®^  A  contract  to  convey  land  of  a  corporation  conditioned  for  the  execu- 
tion of  a  deed  by  the  corporation  on  pa3'ment  of  the  purchase  price  does  not  trans- 
fer the  title  relieving  the  corporation  from  taxation.®^ 

(§7)  E.  Power  to  take  and  hold  stock. — Where  there  is  no  statutory  enable- 
ment, a  corporation  cannot  subscribe  to  the  capital  stock  of  another.®® 

In  Washington  a  corporation,  foreign  or  domestic,  cannot  own  and  vote 
stock  in  another  corporation.®®  In  New  Jersey,  a  corporation  organized  for  the 
purpose  of  holding  stock  and  controlling  the  management  of  other  corporations 
is  to  be  regarded  as  for  a  lawful  purpose.®" 

Under  the  New  Jersey  corporation  act,  a  corporation  may  purchase  and  hold 
its  own  shares,®^  unless  it  thereby  prevents  itself  from  paying  its  debts  in  full.®'' 


78. 
376. 
79. 
80. 
81. 


Nunnemacher  v.  Posa  (Wis.)   92  N.  W. 


Reed  v.  Fleming,  102  111.  App.  668. 
Williams  v.  Harris,   198   111.   501. 
Gould   V.   W.   J.    Gould   &   Co.    (Mich.) 
96    N.    W.    576. 

82.  National  Fire  Ins.  Co.  v.  Eastern  Bldg. 
&   Loan   Ass'n    (Neb.)    91   N.  W.   482. 

83.  Under  the  common  law  and  Negotiable 
Instrument  Law,  §§  50.  91,  98,  L.  1897,  c.  612, 
pp.  727,  732.  733 — Karsch  v.  Pettier  &  Stymus 
Mfg.   &  Imp.  Co.,   81  N.   T.   Supp.    782. 

84.  Vt.  Sts.,  §  2212 — Hutchins  v.  Barre 
Water  Co.,  74  Vt.  36. 

85.  Conveyance  of  toll  road  franchise — 
Lyons  &  E.  P.  Toll  Road  Co.  v.  People,  29 
Colo.   434,  68  Pac.   275. 

86.  Not  being  a  conveyance — St.  Clair  v. 
Rutledge,   115  Wis.   583. 


87.  Hutchins  v.  Barre  Water  Co.,  74  Vt. 
36. 

88.  Nebraska  Shirt  Co.  v.  Horton  (Neb.) 
93  N.  W.   225. 

89.  Corp.  Act  1896,  §  51;  1  Hill's  Ann.  St. 
&  Codes,  Wash.  §  1506 — Coler  v.  Tacoma  Ry. 
&  Power  Co.  (N.  J.  Sup.)  54  Atl.  413.  The 
lower    court   held    in    this    case    [  (N.    J.    Ch.) 

53  Atl.  680]  that  the  power  of  a  New  Jersey 
corporation  to  hold  and  vote  stock  in  a 
Washington  corporation  would  be  presumed. 

90.  Rev.  Laws  1875,  p.  6,  §  10.  Corp.  Act 
1S96,  p.  294,  §  51 — Dittman  v.  Distilling  Co. 
(N.  J.  Ch.)   54  Atl.   570. 

91.  Corp.  Act  1896,  §  20,  subd.  4,  §  1 — 
Berger  v.  United  States  Steel  Corp.,  63  N.  J. 
Eq.    809. 

92.  Oliver  v.   Rah  way   Ice  Co.    (N.  J.   Ch.) 

54  Atl.    460. 


'26 


CORPORATIONS. 


§  8 


Where  a  corporation  obtains,  by  its  charter,  the  right  to  dispose  of  its  prop- 
erty and  to  dissolve  its  corporate  existence,  it  has  power  to  accept  stock  in  another 
corporation  in  pajTnent  of  the  purchase  price  provided  the  transaction  is  bona 
fide,*'  and  though  the  statute  under  which  a  corporation  is  formed  prohibits  the 
purchase  of  stocks,  bonds,  and  securities,  unless  specially  authorized,  since  the 
implied  power  to  wind  up  the  affairs  of  the  corporation  and  dispose  of  its  property 
authorizes  a  sale  for  stock  in  another  corporation.''* 

If  the  corporation  has  power  to  deal  in  the  stock  and  bonds  of  other  corpora- 
tions, it  may  promote  a  new  corporation  of  which  it  is  to  hold  a  large  proportion 
of  the  stock  for  the  purpose  of  increasing  its  business  and  profits,®^  and  it  is  not 
material  that  the  stock  held  be  issued  as  full  paid.®*  Under  a  power  to  purchase 
stock  of  other  corporations  dealing  in  the  same  commodities,  a  corporation  may 
organize  and  hold  the  stock  of  corporations  in  other  states  for  the  purpose  of  sell- 
ing its  products  to  them.®^ 

A  solvent  corporation  may  purchase  stock  from  its  retiring  president  for  the 
purpose  of  rei .-suing  it  to  the  president  who  shall  be  elected.*® 

§  8.  Effect  of  ultra  vires  and  illegal  transactions. — An  abuse  of  corporate 
power  cannot  be  asserted  by  the  corporation  or  its  assignee  for  creditors.^®  The 
right  to  acquire  realty  cannot  be  collaterally  attacked.^  The  question  of  whether 
the  powers  conferred  on  a  corporation  by  its  charter  or  certificate  of  organization 
are  being  exercised  in  such  a  manner  as  to  create  a  monopoly  can  be  determined 
only  on  quo  warranto  by  the  attorney  general.^  Creditors  cannot  assert  ultra  vires, 
unless  it  operates  to  fraudulently  divert  corporate  assets  from  their  benefit.^  One 
not  a  party  cannot  assert  that  a  contract  is  ultra  vires.*  Though  a  partnership 
between  a  corporation  and  an  individual  may  be  illegal,  the  corporation  must,  on 
the  death  of  the  individual,  be  allowed  to  maintain  such  action  as  might  be  main- 
tained by  a  surviving  partner."  A  corporation  may  make  a  valid  lease  of  property 
which  may  have  been  acquired  by  it  in  excess  of  its  powers.*  Wliere  recovery  is 
sought  on  a  corporation's  contract,  shareholders  who  intervene  asserting  its  in- 
validity cannot  show  that  the  compensation  received  thereunder  was  insufficient.'' 

Estoppel  to  assert  ultra  vires. — If  money  or  property  has  been  received  by  the 
corporation,  it  cannot  assert  that  the  contract  under  which  it  took  was  ultra  vires,* 


93,  94.  Construing  Code  West  Virginia, 
1899,  c.  52.  §§  3,  4  and  liolding  ttiat  the  pro- 
hibition therein  contained  against  the  pur- 
chase of  stocks  did  not  apply  In  case  of  a 
bona  fide  sale  terminating  the  existence  of 
a  corporation — Metcalf  v.  American  School 
Furniture  Co..  122   Fed.  115. 

95.  The  directors  being  given  authority 
to  exercise  the  powers  of  the  corporation 
cannot  be  enjoined  from  so  doing  on  the 
ground  of  ultra  vires  or  possible  loss — 
Rubino  v.   Pressed  Steel  Car  Co.    (N.  J.  Ch.) 

53  Atl.   1050. 

90.  Corporation,  for  $550,000,  may  take 
stock  to  the  value  of  $800,000 — Rubino  v. 
Pressed  Steel  Car  Co.  (N.  J.  Ch.)  53  Atl.  1050. 

97.  Dittman    v.    Di.itilling  Co.    (N.    J.    Ch.) 

54  AtL  570. 

98.  Joseph  V.  Raff,  82  App.  Div.   CN.  Y.)  47. 

99.  Ross  V.  Sayler,  104  111.  App.  19. 

t.  In  a  proceeding  to  enforce  a  debt — 
Advance  Thresher  Co.  v.  Rockafellow  (S. 
D.)  93  N.  W.  652.  The  question  of  whether 
a  corporation  authorized  to  hold  real  estate 
for  certain  purposes  has  exceeded  its  powers. 
can  be  raised  only  in  a  proceeding  instituted 
by  the  state — Springer   v.   Chicago   Real   Es- 


tate  Loan    &    Trust    Co.,    202    111.    17. 

2.  Dittman  v.  Distilling  Co.  (N.  J.  Ch.)  54 
Atl.    570. 

3.  Force  v.   Age-Herald   Co.,   136  Ala.    271. 

4.  State  Ins.  Co.  v.  Farmers'  Mut.  Ins.  Co. 
(Neb.)    90   N.   W.   997. 

5.  Willey  v.  Crocker-Woolworth  Nat. 
Bank   (Cal.)    72  Pac.  832. 

6.  May  recover  on  a  contract  of  guaranty 
of  the  rent — Nantasket  Beach  Steamboat  Co. 
V.   Shea,    182   Mass.    147. 

7.  Smith  V.  Bank  of  New  England  (N.  H.) 
54   Atl.    385. 

8.  Rehberg  v.  Tontine  Surety  Co.  (Mich.) 
91  N.  W.  132.  Though  the  purchase  of  goods 
is  ultra  vires,  if  they  are  retained,  the  money 
paid  cannot  be  recovered — Graton  &  K.  Mfg. 
Co.  V.  Redelsheimer,  28  Wash.  370,  68  Pac. 
879.  V\^here  a  corporation  has  actually  en- 
joyed the  use  of  money,  it  cannot  contend 
that  the  note  given  for  it.  and  the  transac- 
tions leading  up  to  Its  borrowing,  were  not 
pursuant  to  the  by-laws — St.  Joseph's  Polish 
Catholic  Ben.  Soc.  v.  St.  Hedwig's  Church 
(Del.)  53  Atl.  353.  In  an  action  on  a  note 
a  corporation  cannot  contend  that  it  had  no 
power   to   purchase   tobacco,    where   it   is   de- 


§8 


ULTRA  VIRES 


727 


or  where  third  persons  have  acquired  rights  without  notice,'  or  the  party  has  lost 
valuable  rights/"  and  in  general,  where  a  contract  has  been  fully  performed  by 
the  other  party,  it  cannot  defend  on  the  ground  of  ultra  vires  in  the  fact  that  the 
contract  is  merely  in  excess  of  its  powers."  Stockholders  may  be  estopped  with  the 
corporation."  If  a  corporation  which  has  entered  into  an  ultra  vires  contract  has 
received  no  benefit  therefrom,  it  is  not  estopped  from  repudiating  it  by  mere 
neglect.^^ 

Conversely. — Those  who  have  received  the  benefit  of  a  contract  with  a  corpo- 
ration cannot  assert  that  it  was  ultra  vires.^*  A  mortgagor  to  a  corporation  can- 
not contend  that  the  act  of  the  corporation  in  taking  the  mortgage  was  ultra  vires." 
Where  a  Judgment  creditor  of  a  corporation's  officers  sells  property  held  by  him 
in  trust  on  execution  and  purchases  the  same,  he  cannot  assert  the  corporation's 
inability  to  hold  property  as  against  its  claim  to  such  property.^®  Wliere  the 
assignors  of  a  claim  and  the  corporation's  assignee  sue  jointly,  the  defendant  can- 
not object  that  the  taking  of  the  assignment  was  ultra  vires  the  corporation.^'^ 

Pleading  and  procedure. — Ultra  vires  is  a  matter  of  defense  and  the  complaint 
need  not  show  power  to  enter  into  a  contract,^*  the  defense  is  in  the  nature  of  a 
confession  and  avoidance,^®  and  must  be  specially  pleaded.^"  It  may  be  raised  by  a 
demurrer  in  an  action  against  the  corporation  on  a  contract.^^     Where  ultra  vires 


fended  that  the  note  had  been  dlscharg-ed 
by  the  purchase  of  tobacco  for  the  corpora- 
tion, and  that  such  tobacco  was  received 
by  the  corporation — I^ouisville  Tobacco 
Warehouse  Co.  v.  Stewart.  24  Ky.  L.  R.  934, 
70  S.  "W.  285.  A  corporation  wliich  has  as- 
sumed to  act  as  trustee  cannot  assert  as 
against  claims  of  those  entitled  to  the  trust 
funds  that  it  had  no  power  to  so  act — Cen- 
tral R.  &  Banking'  Co.  v.  Farmers'  Loan  & 
Trust  Co.   (C.  C.  A.)   114  Fed.  263. 

9.  Bear  Valley  Land  Co.  v.  Savings  & 
Trust  Co.,  117  Fed.   941. 

10.  Agreement  for  settlement  of  a  claim 
for  personal  Injuries,  in  consideration  of  the 
life  employment  as  a  railroad  flagman,  which 
was  not  objected  to  until  after  the  claim 
was  barred  by  limitations — Usher  v.  New 
York  Cent.  &  H.  R.  R.  Co.,  76  App.  Dlv.  (N. 
Y.)    422. 

11.  Owyhee  Land  &  Irr.  Co.  v.  Tautphas 
(C.  C.  A.)  121  Fed.  343;  Chenoweth  v.  Pacific 
Exp.  Co.,  93  Mo.  App.  185.  A  building  and 
loan  association  cannot  avoid  payment  of 
shares  wliich  it  has  agreed  to  mature  on  the 
ground  that  its  contract  was  ultra  vires,  if 
the  subscriber  to  the  shares  has  paid  in  full 
the  sum  stipulated — Field  v.  Eastern  Bldg. 
&  Loan  Ass'n,  117  Iowa,  185;  Eastern  Bldg. 
&  Loan  Ass'n  v.  Williamson,   189  TJ.  S.  122. 

12.  Where  title  to  corporate  property  and 
the  possession  thereof  is  passed  to  the 
grantee  on  a  contract  of  sale,  the  corporation 
is  estopped  from  seeking  a  rescission  and 
a  stockholder  standing  in  its  shoes  Is  like- 
wise estopped,  the  ground  for  rescission  be- 
ing asserted  ultra  vires — Metcalf  v.  American 
School  Furniture  Co.,  122  Fed.  115.  Stock- 
holders who  have  authorized  the  issuance 
of  bonds  and  stock  at  a  discount  in  payment 
of  cost  of  construction  to  a  contractor  can- 
not afterward  assert  that  the  contract  was 
unjust — Wells  v.  Northern  Trust  Co.,  195  111. 
288. 

13.  Subscription   to   the  stock  of  another 


corporation — Nebraska    Shirt    Co.    v.    Horton 
(Neb.)    93  N.  W.   225. 

14.  Joint  contract  of  corporation  to  fur- 
nish paving  blocks — Booth  Bros.  &  H.  I. 
Granite  Co.  v.  Baird,  83  App.  Div.  (N.  Y.) 
495.  One  who  has  made  a  note  cannot  de- 
fend an  action  by  a  corporation  thereon  on 
the  ground  of  ultra  vires  in  its  purchase — 
Black  V.  First  Nat.  Bank,  96  Md.  399.  If  a 
national  bank  has  completed  a  sub-contract 
which  was  assigned  to  it,  the  original  con- 
tractor or  owner  cannot  assert  that  such 
completion  was  ultra  vires — Security  Nat. 
Bank  v.  St.  Croix  Power  Co.  (Wis.)  94  N.  W. 
74.  Where  a  corporation  has  made  valuable 
business  improvements  on  property  trans- 
ferred to  it,  a  party  to  the  agreement  for 
the  transfer  cannot  state  that  the  corpora- 
tion did  not  need  the  property  in  its  business 
— Coleridge  Creamery  Co.  v.  Jenkins  (Neb.) 
92  N.  W.  123. 

15.  Building  association — Bay  City  Bldg. 
&  Loan  Ass'n  v.  Broad,  136  Cal.  525,  69  Pac. 
225. 

16.  Scott  v.  Farmers'  &  M.  Nat.  Bank 
(Tex.)    75   S.  W.   7. 

17.  The  county  cannot  raise  such  objection 
in  an  action  against  it  vinder  Ky.  St.  §  1241a, 
providing  compensation  for  the  protection 
of  property  against  a  mob,  since  it  would 
not  be  prejudiced  by  the  judgment  in  favor 
of  the  corporation — Hopkins  County  v.  St. 
Bernard  Coal  Co.,  24  Ky.  L.  R.  942,  70  S.  W. 
289. 

18.  United  States  Mortg.  Co.  v.  McClure, 
42  Or.  190,  70  Pac.  543. 

19.  Lewis  V.  Clyde  Steamship  Co.,  131  N. 
C.    652. 

20.  Salvage  contract — Lewis  v.  Clyde  S.  S. 
Co.,  132  N.  C.  904.  Contract  of  suretyship — 
Hess  V.  W.  &  J.  Sloane,  173  N.  Y.  616.  In- 
dorsement of  a  note — Karsch  v.  Pottier  &  S. 
Mfg.   &  Imp.  Co.,  82  App.  Div.    (N.   Y.)    230. 

21.  Markowitz  v.  Greenwall  Theatrical 
Circuit  Co.   (Tex.  Civ.  App.)    75  S.  W.  74. 


728 


CORPORATIONS. 


§9 


is  pleaded  as  against  an  original  plaintiff,  it  need  not  be  repleaded  against  an  inter- 
venor  unless  he  is  harmed  b}'  the  omission  so  to  do.^^ 

Equity  may  have  jurisdiction  of  a  bill  for  discovery  and  to  recover  the  sum 
paid  on  a  contract  with  a  corporation  alleged  to  be  fraudulent  and  ultra  vires.^^ 

§  9.  Torts,  penalties,  and  crimes. — A  corporation  is  liable  for  malice  of  its 
servants  in  the  performance  of  acts  within  the  scope  of  their  duties  and  authority, 
though  not  when  they  are  engaged  about  their  own  business.-*  There  is  no  dis- 
tinction between  the  liability  of  a  corporation  and  of  an  individual  for  negligence 
causing  death."  Where  the  servants  or  agents  of  a  corporation  are  engaged  in 
work  authorized  solely  by  the  charter  of  the  corporation,  the  corporation  is  liable 
for  their  negligence,^'  A  corporation  organized  for  the  purpose  of  giving  a  fair 
may  be  liable  for  the  negligent  construction  of  seats  by  an  exhibitor.^'' 

A  relief  department  organized  by  a  railroad  company  and  supported  by  con- 
tributions from  the  employes  cannot  be  regarded  as  charitable,  exempting  the  cor- 
poration from  liability  for  maltreatment  by  physicians  and  surgeons  in  case  it  has 
exercised  due  care  in  their  selection,^*  but  the  doctrine  of  respondeat  superior  can- 
not nevertheless  be  applied  unless  evidence  shows  want  of  care  in  selection  of  the 
surgeon,  and  the  servant  injured  by  malpractice  has  no  recourse  against  his  em- 
ployer.2®  Wliere  the  secretary  of  a  corporation  wrongfully  places  money  to  its  credit 
and  then  applies  such  deposit  to  his  individual  indebtedness,  the  corporation,  if  it 
has  no  knowledge  of  the  fact  of  the  deposit  and  receives  no  benefit  therefrom,  is  not 
liable  to  the  owner  except  for  such  sum  as  remains  deposited  to  its  credit  when  it 
receives  notice,^"  and  the  fact  that  the  corporation  allowed  the  deposit  to  remain  to 
its  credit  does  not  show  a  ratification  of  the  secretary's  act  so  as  to  render  it  liable 
for  the  entire  sum.'^ 


22.  Laidlaw  v.  Pacific  Bank,  137  Cal.  392, 
70   Pac.   277. 

23.  Sufficient  to  aUege  that  stockholders 
have  conspired  to  transact  an  unlawful  busi- 
ness in  violation  of  its  charter  and  that  by 
fraudulent  representations,  complainant  had 
been  Induced  to  pay  money  to  it,  that  on 
discovery  of  fraud,  he  had  ceased  to  pay 
under  the  contract  and  that  defendant  was 
Insolvent — Bale  v.  Michigan  Tontine  Inv.  Co. 
(Mich.)    93   N.   "W.    1071. 

(Note)  After  examination  of  the  authori- 
ties, Clark  &  Marshall  In  their  work  on  Pri- 
vate Corporations,  Vol.  I,  p.  620,  lay  down 
the  following  general  rules: 

Though  there  is  some  conflict  in  the  de- 
cisions as  to  the  liability  of  a  corporation  for 
the  torts  of  its  officers  and  agents,  the  fol- 
lowing propositions  are  supported  by  the 
weight  of  authority:  (1)  As  a  general  rule 
a  corporation  Is  liable,  like  a  natural  person, 
for  torts  of  its  officers  or  agents  within  the 
scope,  or  apparent  scope  of  their  authority. 

(2)  It  is  liable  for  a  tort  so  committed,  al- 
though it  involves  a  specific  intent  or  malice, 
for  the  intent  or  malice  of  its  officers  or 
agents  may  be  imputed  to  it. 

(3)  It  Is  liable  for  exemplary  damages,  in 
a  proper  case,  for  the  torts  of  its  managing 
officers  or  officer,  or  for  torts  of  subordinate 
agents  authorized  or  ratified  by  them. 

(4)  It  is  liable,  according  to  the  weight  of 
authority,  although  the  tort  may  have  been 
committed  in  the  course  of  an  ultra  vires 
business  or  transaction,  if  such  business  or 
transaction  was  authorized  by  its  stockhold- 
ers or  managing  officers. 

(5)  It  is  not  liable   for  torts  of  an  agent 


not  within  the  scope,   or  apparent  scope,   of 
his  authority,  unless  it  has  ratified  the  same. 

(6)  Most  courts  hold  that  it  is  not  liable 
as  for  a  tort  for  acts  clearly  authorized  by 
its  charter,  if  the  grant  of  authority  was  con- 
stitutional, and  the  act  was  done  without 
negligence  and  in  good  faith. 

(7)  According  to  the  weight  of  authority, 
a  corporation  organized  exclusively  for  the 
purpose  of  a  public  charity  is  not  liable  to  a 
patient  or  other  person  receiving  the  benefit 
of  the  charity  for  the  torts  of  its  agents,  un- 
less it  has  been  negligent  in  selecting  or  re- 
taining them. 

24.  Liability  of  corporation  for  trespass — 
Waters  v.  West  Chicago  St.  R.  Co.,  101  111. 
App.  265.  Railroad  corporation  is  liable  for 
the  act  of  an  employe  in  locking  a  person 
into  an  empty  car  and  causing  his  arrest, 
such  act  being  done  at  the  direction  of  a 
station  agent  having  charge  of  the  property 
in  the  cars  of  the  company — Texas  &  P.  Ry. 
Co.  V.  Parker  (Tex.  Civ.  App.)  68  S.  W.  831. 
May  be  liable  in  a  statutory  action  for  in- 
sulting words  uttered  or  published  by  an 
agent  acting  within  the  scope  of  his  employ- 
ment and  in  the  course  of  its  business — Sun 
Life  Assur.  Co.  v.  Bailey  (Va.)  44  S.  E.  692. 

25.  Himrod  Coal  Co.  v.  Clark,  197  111.  514. 

26.  Chicago  &  G.  T.  Ry.  Co.  v.  Hart,  104 
111.    App.    57. 

27.  Texas  State  Fair  v.  Marti  (Tex.  Civ. 
App.)    69   S.   W.   432. 

28.  29.  Haggerty  v.  St.  Louis,  K.  &  N.  W. 
R.  Co.  (Mo.  App.)   74  S.  W.  456. 

30,  31.  Glendale  Inv.  Ass'n  v.  Harvey  Land 
Co.,  114  Wis.   408. 


§  ^ 


TORTS,  PENALTIES  AND  CRIMES. 


729 


Personal  Uahility  of  officers  or  receiver  for  torts. — The  receiver  of  a  corpora- 
tion is  not  liable  for  a  death  caused  by  his  negligence,  though  by  statute  an  action 
for  wrongful  death  is  authorized.^^  Employment  by  the  directors  of  persons  for  a 
specific  purpose  does  not  render  them  personally  liable  for  his  negligent  acts.^^ 
The  general  manager  of  a  corporation  which  publishes  a  paper  who  is  author- 
ized to  control  its  policy  may  be  individually  responsible  for  a  libel,  though  not  one 
who  is  merely  an  officer  without  control.^* 

Priority  of  judgment  for  negligence. — A  judgment  against  a  water  company 
based  on  its  negligence  in  failing  to  supply  water  for  fire  purposes,  which  recites 
that  it  is  for  the  tortious  injury  and  damage  done  plaintiff  by  the  negligence  of  de- 
fendant, is  prior  to  a  mortgage.^'' 

Penalties. — A  statutory  limitation  as  to  the  time  within  which  action  for  a 
penalty  or  forfeiture  based  on  the  statute  shall  be  brought  does  not  affect  actions 
against  directors  or  stockholders  of  a  corporation  to  recover  a  penalty  or  forfeiture 
imposed  or  to  enforce  a  liability  created  by  law.*® 

If  a  corporation  desires  to  object  that  a  statutory  proceeding  to  recover  a  pen- 
alty for  failure  to  file  an  annual  report  is  on  the  relation  of  the  circuit  attorney 
instead  of  the  city  within  which  the  corporation  is  located,  it  must  raise  such  objec- 
tion by  demurrer  or  answer  f  and  the  proceeding  should  be  by  the  state  on  relation 
of  the  city.**  It  is  not  a  defense  that  a  secretary  of  state  has  notified  the  prose- 
cuting officers  of  the  corporation's  default  in  the  filing  of  the  report,*®  and  it  need 
not  be  alleged  that  blanks  for  the  annual  report  have  been  mailed  to  the  corpora- 
tion.*" 

Crimes. — A  corporation  may  be  indicted  for  obstructing  a  highway.**  Statu- 
tory provisions  punishing  the  assumption  of  a  corporate  name  by  an  unincorporated 
person,  or  the  assumption  of  a  false  name  by  a  corporation  for  the  purpose  of  solicit- 
ing business  are  not  violated  by  the  mere  assumption  of  a  corporate  name.*^ 

Where  conspiracy  to  commit  an  act  injurious  to  trade  or  commerce  is  made 
an  offense,  a  combination  to  depreciate  the  value  of  the  capital  stock  of  a  corpora- 
tion which  is  listed  on  the  stock  exchange  is  such  a  conspiracy.** 

Embezzlement  hy  officers. — The  president  of  a  corporation  is  not  relieved  from 
liability  as  for  embezzlement  on  use  of  its  assets  in  an  unlawful  payment  of  divi- 
dends to  himself  and  others,  though  the  payment  of  such  dividends  was  concurred  in 
by  all  the  stockholders.**  It  must  be  shown  that  all  the  directors,  or  at  least  a  ma- 
jority of  them,  together  with  the  defendant,  if  he  voted,  acted  with  knowledge  that 
the  act  was  illegal,  and  that  they  each  acted  with  a  fraudulent  purpose  of  converting 
to  their  own  use  and  to  the  use  of  each  other  respectively,  the  money  of  the  corpora- 
tion, since  mere  guilty  knowledge  in  the  defendant  in  receiving  the  dividends,  if  it 
was  honestly  voted  would  not  render  him  guilty.*"* 


82.  Rev.  St.  §  3017 — Parker  v.  Dupree 
(Tex.  Civ.  App.)   67  S.  "W.  185. 

S3.  Employment  to  give  a  fireworks  ex- 
hibition on  grounds  of  a  corporation — Bianki 
V.  Greater  American  Exposition  Co.  (Neb.) 
92   N.   W.    615. 

34.  Danville  Press  Co.  v.  Harrison,  99  111. 
App.    244. 

S.'.  Being  within  the  terms  of  Code  North 
Carolina,  §  1255  which  gives  such  priority 
to  judgment  for  torts — Guardian  Trust  & 
Deposit  Co.  v.  Greensboro  Water  Supply  Co., 
115   Fed.    184. 

36.  Code  Civ.  Proc.  Mont.  tit.  2,  §§  554,  515 
—Davis  V.  Mills  (C.  C.  A.)   121  Fed.  703. 

37,  88.     Rev.   St.  1899.  §§  1013,   1017,   1021— 


State   v.    Missouri    Exploration    &    Land    Co.. 
97   Mo.   App.    226. 

39,  40.  Rev.  St.  1899,  §  1015,  provides  that 
failure  to  receive  blanks  shall  not  be  re- 
garded as  an  excuse — State  v.  Missouri  Ex- 
ploration &  Land  Co.,   97  Mo.  App.  226. 

41.  State  V.  White,  96  Mo.  App.  34. 

42.  Imperial  Mfg.  Co.  v.  Schwartz,  105  111. 
App.   525. 

43.  People  V.   Goslin,   171  N.   Y.   627. 

44.  The  corporation  having  a  separate 
legal  existence  from  that  of  the  stockhold- 
ers, it  cannot  be  urged  that  it  was  impossi- 
ble for  the  stockholders  to  steal  their  own 
property — Taylor  v.  Commonwealth,  25  Ky. 
L.  R.   374,  75  S.  W.  244. 


730 


CORPORATIONS. 


§  10 


An  indictment  for  embezzlement  under  the  Kentucky  statute  does  not  charge 
two  offenses,  though  it  alleges  that  while  defendant  was  acting  in  the  capacity  of 
president  and  director,  he  did,  with  "intent  to  wallfully  injure  and  defraud  the 
company  and  said  persons,  embezzle  said  money."*®  A  civil  liability  imposed  on 
directors  for  the  wrongful  declaration  of  dividends  does  not  prevent  the  pro?ecu- 
tion  of  the  corporate  officers  for  embezzlement  in  the  wrongful  payment  of  such 
dividends  to  themselves  from  the  assets  of  the  corporation.*''  The  same  is  true  of 
a  penalty  by  way  of  fine  on  directors  violating  provisions  of  the  statute  relating  to 
corporations.*^  On  a  prosecution  of  the  president  of  a  corporation  for  embezzlement 
in  the  sanction  and  receipt  of  dividends  at  a  time  when  the  corporation  was  insol- 
vent, it  must  be  shown  that  at  the  time  such  dividends  were  declared  and  paid  there 
were  no  funds  legally  applicable  to  their  pajonent,  and  the  acts  were  with  the  fraud- 
ulent purpose  of  converting  the  money  of  the  corporation  to  the  use  of  the  officers.** 
To  determine  the  question  of  insolvency,  proof  of  the  corporation's  resources  and 
assets  at  the  time  laid  in  the  indictment,  together  with  the  course  and  nature  of  its 
business  and  the  extent  of  its  liabilities,  is  admissible,^"  and  the  payment  of  divi- 
dends and  sums  at  about  the  same  time  to  the  directors  and  stockholders,  and  the 
actual  condition  of  the  company  at  such  times  may  be  shown,  also  corporate  trans- 
actions in  which  the  stockholders  bought  coupons  in  the  name  of  various  syndicates, 
on  the  security  of  which  they  borrowed  money  from  the  corporation,  but  the  jury 
should  be  instructed  to  regard  such  evidence  as  going  solely  to  the  question  of  mo- 
tive.''^ The  belief  of  defendant  and  the  board  of  directors  as  to  the  propriety  of 
voting  the  dividends  is  admissible,  together  with  evidence  that  it  was  based  on  the 
advice  of  counsel.^^  It  cannot  be  sho"mi  that  similar  other  companies  divided  the 
funds  mentioned  among  their  stockholders."^^  The  fraudulent  acts  of  defendant's 
co-directors  must  be  submitted  to  the  jury,'*  The  court  in  its  instructions  should 
define  the  fraudulent  appropriation  of  funds.'* 

Procedure  in  'prosecutions. — On  a  prosecution  of  a  corporation  the  state  need 
not  show  legal  incorporation,  though  the  allegation  of  corporate  existence  is  a  mere 
naming  of  defendant  if  defendant  appear  and  plead.**'  An  instruction  in  a  pro- 
ceeding for  the  mutilation  and  falsification  of  corporation  books  may  set  out  an  en- 
tire statute  if  the  charge  against  defendant  is  in  other  portions  of  the  instructions 
precisely  stated.''^  On  an  indictment  for  mutilation  of  corporate  records,  the  fact 
that  defendant  is  charged  to  have  altered  and  caused  to  have  altered  does  not  ren- 
der the  indictment  bad  as  stating  two  offenses  or  failing  to  state  who  it  was  that 
defendant  caused  to  perpetrate  the  alteration."*^ 

§  10.     Actions  hy  and  against  corporations.^^    Right  to  sue  in  corporate  name. 


45.  Taylor  v.  Commonwealth,  25  Ky.  L. 
R.   374,  75  S.  W.  244. 

46.  Ky.  St.  1899,  §  1202 — Taylor  v.  Com- 
monwealth, 25  Ky.  L.  R.  374,  75  S.  W.  244. 
The  ownership  is  not  material  further  than  it 
must  be  charged  and  shown  to  have  belong- 
ed either  to  the  corporation  of  which  de- 
fendant was  an  officer  or  agent,  or  to  some 
person  who  had  entrusted  its  possession  to 
that  corporation — Id. 

47.  Ky.  St.  1899,  §  548,  not  exclusive — Tay- 
lor V.  Commonwealth,  25  Ky.  L.  R.  374,  75 
S.  W.  244. 

48.  Ky.  St.  1899,  §  550,  not  exclusive — Tay- 
lor V.  Commonwealth.  25  Ky.  L.  R.  374,  76  S. 
W.   244. 

49-54.  Taylor  v.  Commonwealth,  25  Ky. 
L.  R.  374,  75  S.  W.  244 

55.     The  jury  should  have  been   told  that 


by  fraudulent  conversion  was  meant  the  de- 
ceitful intent  of  appropriation  of  the  prop- 
erty of  the  corporation  without  the  right 
and  without  a  belief  of  right,  and  a  fraudu- 
lent Intent  is  the  intent  to  effect  such  ap- 
propriation— Taylor  v.  Commonwealth,  25 
Ky.   L.    R.    374,   75   S.   W.    244. 

56.  State  V.  Glucose  Sugar  Refining  Co., 
117   Iowa,    524. 

57.  Pen.  Code,  par.  881 — Qualey  v.  Terri- 
tory (Ariz.)   68  Pac.  546. 

58.  Indictment  held  good  which  charged 
that  defendant  did  "alter,  mutilate  and  fal- 
sify and  cause  to  be  altered,  mutilated  and 
falsified,  a  book  in  writing" — Qualey  v.  Ter- 
ritory  (Ariz.)    68  Pac.  546. 

59.  Actions  against  foreign  corporations 
are  treated  in  article  "Foreign  Corporations." 
In    this    section    it    has    been    attempted    to 


§  io_ 


ACTIONS  BY  AND  AGAINST  CORPORATIONS. 


731 


— ^A  corporation  cannot  as  such  file  and  sign  a  bill  in  chancery  but  must  act  through 
the  intervention  of  agents.®"  After  cessation  of  business  and  death  of  a  portion  of 
the  stockholders,  an  attorney  representing  a  majority  of  the  stock  may  sue  in  the 
corporate  name.®^  Though  the  president  of  a  corporation  owns  all  but  two  shares 
of  its  capital  stock,  the  corporation  may,  after  his  death,  sue  to  vacate  a  decree  of 
foreclosure  obtained  against  it,  without  joining  his  administrator  and  heirs  or  its 
directors  and  trustees.®^  The  corporation  may  sue  in  a  name  slightly  variant  from 
that  under  which  it  enters  into  a  contract,*'^  but  if  the  question  as  to  variance  is 
raised,  the  identity  of  the  suing  and  the  contracting  party  is  in  issue.®* 

Jurisdiction. — An  action  seeking  a  discovery  and  the  repayment  of  money  ob- 
tained by  fraud  may  be  maintained  in  equity.®^  Actions  to  compel  an  accounting 
by  a  former  treasurer  of  a  corporation  may  be  brought  in  equity  as  may  an  action 
to  charge  a  bank  as  trustee  of  corporate  funds  which  with  knowledge  of  their  own- 
ership it  has  permitted  to  be  wrongfully  withdrawn  and  converted.®® 

Tenwe.®^ — Statutes  relating  to  service  of  process  do  not  affect  the  jurisdiction 
authorized  at  common  law  of  actions  against  corporations.®^  Where  the  principal 
relief  sought  is  equitable,  the  venue  is  governed  by  the  rules  with  regard  to  equity 
cases,  though  there  is  also  a  claim  for  damages  which  is  subject  to  a  different  rule.®^ 
Where  the  statute  provides  that  action  may  be  begim  in  any  county  where  the  cor- 
poration has  an  agency  or  representative,  action  may  be  brought  in  the  county  of 
the  residence  of  the  president,  he  performing  his  official  acts  therein,^®  though  the 
president's  official  acts  are  few,'^^  or  though  by  private  understanding,  the  other 
officers  were  to  do  all  the  work.''^  Wliere  it  is  provided  that  a  person  may  sue  in 
the  county  in  which  he  carries  on  his  regular  business,  though  other  than  the  county 
of  his  residence,  a  corporation 's  president  may  be  regarded  as  engaged  in  business 
in  the  county  of  its  general  office,  though  he  receives  no  salary  for  his  attention  to 
such  business.^'  The  fact  that  a  charter  provides  where  the  principal  place  of 
business  shall  be  does  not  prevent  an  action  being  brought  in  the  county  where  the 
president  and  assistant  auditor  have  offices,  unless  there  is  evidence  that  the  prin- 
cipal place  of  business  is  established  elsewhere.^*  If  the  corporation  agree  to  dis- 
charge an  obligation  in  a  county  other  than  that  of  its  principal  place  of  business, 
it  waives  the  right  to  have  a  suit  for  the  appointment  of  a  receiver  brought  in  the 
latter  county.^* 

Where  it  is  sought  to  enjoin  the  directors  of  a  corporation  from  disposing  of 


group  merely  questions  of  procedure  of  gen- 
eral nature  and  where  the  procedure  was 
apparently  dependent  on  the  peculiar  relief 
sought  it  has  been  treated  in  connection 
with  the  substantive  law  governing  such 
relief. 

60.  Jockish  V.  Deutscher  Krieger  Verein, 
98  111.  App.  9. 

61.  San  Diego  Gas  Co.  v.  Frame,  137  Cal. 
441.  70  Pac.   295. 

62.  Fox  V.  Robbina  (Tex.  Civ.  App.)  70  S. 
W.  597. 

63.  64.  Riemann  v.  Tyroler  &  V.  Verein, 
104  111.  App.  413. 

65.  Bill  against  the  corporation,  its  di- 
rectors and  stockholders,  alleged  a  con- 
spiracy by  the  stockholders  to  transact  an 
unlawful  business  and  fraudulent  repre- 
sentations inducing  complainant  to  pay 
money  to  It — Edwards  v.  Michigan  Tontine 
Inv.  Co.    (Mich.)    92  N.  W.   491. 

66.  Hunter  v.  Robbins,   117   Fed.   920. 

67.  Domicile  of  corporation.     See  ante,  §  6. 


68.  A  common  law  rule  requiring  suit 
against  a  corporation  to  be  In  the  county 
where  its  property  is  located  or  where  it 
transacts  a  substantial  part  of  its  business, 
is  not  affected  by  act  July  9,  1901,  P.  L,. 
614 — Park  Bros.  &  Co.  v.-  Oil  City  Boiler 
Works,  204  Pa.  453. 

69.  Petition  for  an  injunction  must  be 
brought  in  the  county  of  the  corporation's 
principal  office.  Construing  Civ.  Code,  §  1900 
— Etowah  Milling  Co.  v.  Crenshaw,  116  Ga. 
406. 

70-72.  Rev.  St.  1895.  art.  1194,  §  23— 
Sharp  V.  Damon  Mound  Oil  Co.  (Tex.  Civ. 
App.)    72   S.  W.   1043. 

73.  Code.  art.  75.  §  135 — Cromwell  v.  Wil- 
lis, 96  Md.  260. 

74.  It  does  not  matter  that  a  railroad  has 
no  track  in  such  county — Boyd  v.  Blue  Ridge 
Ry.  Co.,   65   S.   C.  326. 

75.  Rev.  St.  art.  1488 — Wills  Point  Mer- 
cantile Co.  V.  Southern  Rock  Island  Plow  Co. 
(Tex.   Civ.   App.)    71   S.   W.   292. 

76.  Moneuse  v.  Riley,  40  Misc.  (N.  Y.)   110. 


732 


CORPORATIONS. 


§  10 


its  property  or  carrying  on  its  business,  the  proceedings  should  be  brought  in  a 
court  of  general  jurisdiction  at  its  domicile."®  An  action  against  a  railroad  corpo- 
ration for  an  injury  resulting  from  a  defective  track  is  based  on  an  act  of  commis- 
sion and  is  not  based  on  a  passive  act  or  act  of  omission,  for  which  the  corporation 
should  be  sued  at  its  domicile,  and  may  be  brought  in  the  county  in  which  the  acci- 
dent occurredJ^ 

Parties. — If  the  holder  of  land  subject  to  a  vendor's  lien  conveys  it  to  a  corpo- 
ration of  which  he  holds  all  the  stock  except  two  shares,  and  of  which  he  is  presi- 
dent, his  executors  and  heirs  need  not  be  joined  in  an  action  to  foreclose  the  lien.''* 

Process. — Jurisdiction  of  a  corporation  cannot  be  obtained  by  service  on  its 
secretary  and  president  as  individuals.'^*  If  the  suit  is  on  a  claim  in  favor  of  the 
agent  which  he  has  assigned  to  plaintiff,  service  on  the  agent  is  not  good.^"  In 
Kansas,  service  may  be  had  on  an  assistant  secretary  whose  duties  in  fact  make  him 
a  local  secretary.*^  In  New  York,  service  is  not  good  on  a  president,  after  his  resig- 
nation, though  there  is  no  successor.*^  A  notice  of  garnishment  delivered  to  the 
state  superintendent  of  insurance  together  with  a  summons  to  the  company  to  ap- 
pear as  garnishee  is  sufficient  service.*^  The  official  capacity  of  a  person  as  secre- 
tary and  general  manager  of  a  corporation  cannot  be  inferred  for  the  purpose  of 
supporting  a  service  of  process  by  the  fact  that  he  did  not  state  that  he  did  not 
possess  such  capacity  at  or  after  the  time  process  was  served.®*  \Vliere  after  a 
transfer  of  railroad  property,  a  former  ticket  agent  of  the  old  is  retained  by  the 
new  owner,  service  on  him  is  not  good  as  against  the  old  corporation  if  he  no  longer 
represent  it  in  any  way,®"*  and  provisions  that  the  consolidation  of  railroad  com- 
panies shall  leave  all  the  rights  of  creditors  unimpaired  do  not  make  the  new  cor- 
poration agent  of  the  old  for  the  purpose  of  receiving  service.*' 

^Yhere  a  statute  provides  various  classes  on  whom  service  of  process  against  a 
corporation  may  be  made,  absence  of  the  first  mentioned  class  is  necessary  to  the 
validity  of  service. on  the  second  class.®^  Alternative  service  may  be  made  in  case 
of  absence  from  the  county  though  not  from  the  state.** 

Under  other  statutes  service  on  an  officer  of  lesser  rank  is  authorized  by  a 
statement  in  the  return  that  the  president  or  other  chief  officer  was  not  found. 
Where  a  successor  has  not  been  elected,  service  may  be  had  on  an  officer  after  his 
resignation,  if  by  the  by-laws  his  term  of  office  continues  until  the  election  and 
qualification  of  a  successor.*^ 

Return.^ — The  return  of  service  should  show  affirmatively  facts  establishing 
service  within  some  of  the  modes  prescribed  by  statute.^^     The  return  of  a  sum- 


77.  Culpepper  v.  Arkansas  Southern  R.  Co. 
(La.)   34  So.  761. 

78.  Fox  V.  Robbins  (Tex.  Civ.  App.)  70 
S.   W.    597. 

79.  Kirkpatrick  Const.  Co.  v.  Central 
Elec.  Co.,  159  Ind.  639.  A  citation  of  a  cer- 
tain person  as  president  of  a  certain  cor- 
poration is  not  a  citation  service  of  which 
confers  jurisdiction  on  the  corporation  it- 
self— Butler  V.  Holmes  (Tex.  Civ.  App.)  68 
S.  V^^   52. 

SO.  "U'hite  House  Mountain  Gold  Min.  Co. 
V.   Powell    (Colo.)    70   Pac.    679. 

81.  Civ.  Code,  §  68 — Colorado  Debenture 
Corp.  V.  Lombard  Inv.  Co.  (Kan.)  71  Pac. 
584. 

82.  Code  Civ.  Proc.  §  431,  requires  service 
on  a  general  ofRcer,  director  or  managing 
agent — Yorkville  Bank  v.  Zeltner  Brew.  Co., 
80   App.   Div.    (N.   Y.)    578. 

83.  Reid  v.  Mercurio,  91  Mo.  App.  673. 


84.  Scott  v.  Stockholders'  Oil  Co.,  120  Fed 
698. 

85,  86.  Thomson  v.  McMorran  Milling  Co. 
(Mich.)    94  N.  W.   188. 

87.  The  officer's  return  must  show  such 
absence  affirmatively  (Rev.  St.  §  1019) — Drew 
Lumber  Co.   v.   Walter    (Fla.)    34   So.    244. 

88.  Rev.  St.  §  1019— Florida  Cent.  &  P. 
R.  Co.  V.  Luffman  (Fla.)   33  So.  710. 

89.  Civ.  Code,  §  68 — Colorado  Debenture 
Corp.  V.  Lombard  Inv.  Co.  (Kan.)  71  Pac. 
584. 

90.  See  for  approval  of  a  return  of  service 
as  in  conformity  with  Rev.  St.  §  5044 — Par- 
ker v.  Van  Dorn  Iron  Works,  23  Ohio  Circ. 
R.    444. 

91.  Park  Bros.  &  Co.  v.  Oil  City  Boiler 
Works,  204  Pa.  453.  Where  the  statutes 
provide  that  service  may  be  had  by  leaving 
a  copy  with  the  person  In  charge  of  any 
business  office  of  the  corporation  In  case  the 


§  10 


PROCESS.     PLEADING. 


733 


mons  as  served  on  a  corporation's  agent  must  show  information  other  than  the  mere 
statement  of  the  person  on  whom  it  was  served  that  he  was  the  corporation's  agent.^- 

Defective  service  of  process  may  be  waived  by  voluntary  appearance.®^  A  de- 
fective service  of  process  may  be  set  aside  on  rule  without  a  plea  in  abatement.^* 

Appearance. — A  corporation  sued  under  a  name  by  which  it  is  no  longer  doing 
business  may  on  its  special  appearance  file  an  affidavit  of  defense  though  such  affi- 
davit must  show  the  use  by  the  corporation  of  a  different  name  and  the  necessary 
facts.»= 

The  rule  that  a  corporation  represents  its  stockholders  in  the  defense  of  all  suits 
which  involve  corporate  rights  or  functions  applies  only  where  the  matter  litigated 
is  a  corporate  matter  as  distinct  from  a  right  which  pertains  only  to  one  as  the 
owner  and  holder  of  particular  shares.®^ 

Pleading  corporate  existence.^'' — Under  statutory  provisions  in  certain  states, 
corporate  existence  need  not  be  proven  unless  there  is  a  verified  answer  which  con- 
tains an  affirmative  allegation  that  the  plaintiff  or  defendant  as  the  case  may  be 
is  not  a  corporation.®*  Failure  to  allege  that  a  statutory  certificate  has  been  pro- 
cured by  the  corporation  before  commencing  business  does  not  render  its  petition 
demurrable.*®  An  allegation  that  plaintiff  is  a  corporation  is  sufficient.*  A  show- 
ing that  plaintiff  was  a  corporation  may  be  by  amendment  to  the  petition.^ 

A  complaint  need  not  allege  that  defendant  is  a  corporation  in  order  to  bind  it, 
if  it  is  made  a  party  by  its  proper  name.^  The  fact  that  a  complaint  does  not  allege 
defendant's  incorporation  cannot  be  reached  by  a  general  demurrer.* 

To  take  advantage  of  special  statutes  of  incorporation,  they  must  be  pleaded.' 

A  slight  variance  between  the  name  of  a  corporation  as  alleged  in  a  pleading 
and  as  set  out  in  an  exhibit,  on  which  the  action  is  based,  is  immaterial." 


president  or  chief  officer  cannot  be  found, 
but  that  the  absence  of  such  officer  must  be 
expressed  in  the  return,  such  statement  in 
the  return  is  jurisdictional  in  case  service 
is  not  on  the  chief  officers  (Rev.  St.  §§  995, 
996) — Rixke  v.  Western  Union  Tel  Co.,  96  Mo. 
App.   406. 

02.  White  House  Mountain  Gold  Min.  Co. 
V.  Powell   (Colo.)    70  Pac.   679. 

93.  Burlington  &  M.  R.  R.  Co.  v.  Burch 
(Colo.  App.)  69  Pac.  6.  After  service  of  a 
citation  on  the  traveling  passenger  agent  of 
a  railroad  company,  any  defect  will  be  re- 
garded as  w^aived,  where  the  attorney  for  a 
co-defendant,  having  possession  of  the  cita- 
tion, secures  a  continuance,  stating  that  he 
would  either  appear  for  the  railroad  or  have 
someone  else  do  so  at  the  next  term — Texas 
&  P.  Ry.  Co.  V.  McCarty  (Tex.  Civ.  App.)  69 
S.  W.  229.  Though  service  is  on  a  corporate 
officer  as  individual  if  such  individual's  at- 
torney acknowledge  service  of  a  notice  to 
take  depositions  which  specifies  the  action  to 
be  against  the  corporation,  as  "attorney  for 
defendant"  and  subsequently  consents  to  a 
continuance  of  the  case,  the  corporation  is 
bound  by  his  assent  to  such  continuance — 
Kirkpatrick  Const.  Co.  v.  Central  Elec.  Co., 
159   Ind.   639. 

94.  Park  Bros.  &  Co.  v.  Oil  City  Boiler 
Works,   204   Pa.   453. 

95.  Montello  Brick  Co.  v.  Pullman's  Pal- 
ace Car  Co.   (Del.)   54  Atl.  687. 

96.  A  stockholder  is  not  made  a  party  by 
representation  by  the  fact  that  the  corpora- 
tion is  made  a  defendant  to  a  suit  to  enjoin 
the  voting  of  his  shares  for  directors — Tay- 
lor &  Co.  V.   Southern  Pac.  Co.,  122  Fed.   147. 


97.  Evidence  of  corporate  existence.  See 
ante,    §    3. 

98.  Crocker  v.  Muller,  40  Misc.  (N.  Y.) 
685.  Proof  of  the  de  facto  existence  of  a 
corporation  is  unnecessary,  where  in  the 
pleadings  the  corporation  is  admitted  to  be 
sucli — Grand  Rapids  School  Furniture  Co.  v. 
Grand  Hotel  &  Opera  House  Co.  (Wyo.)  72 
Pac.   687. 

99.  Laws  Spec.  Sess.  1898,  c.  10 — North- 
rup  V.  A.  G.  Wills  Lumber  Co.,  65  Kan.  769, 
70    Pac.    879. 

1.  Boston  Base  Ball  Ass'n  v.  Brooklyn 
Base  Ball  Club,  37  Misc.  (N.  T.)  521.  An 
allegation  that  a  plaintiff  is  a  private  cor- 
PLTation  is  sufficient  to  bring  it  within  a 
statutory  provision  dispensing  with  proof 
of  corporate  existence,  and  the  omission  of 
the  word  "duly"  if  desired  to  be  taken  ad- 
vantage of  must  be  raised  by  special  excep- 
tion or  a  special  plea  of  nul  tiel  corporation 
(Rev.  St.  1895,  art.  1186) — Bury  v.  Mitchell 
(Tex.    Civ.   App.)    74   S.   W.    341. 

2.  Petition  filed  in  the  name  of  Adas 
Teshurun  Society — Adas  Yeshurun  Soc.  v. 
Fish  (Ga.)  43  S.  E.  715. 

3.  Butterfleld  v.  Graves,  138  Cal.  155,  71 
Pac.  510. 

4.  Sly  V.  Palo  Alto  Gold  Min.  Co.,  28  Wash. 
485,    68    Pac.    871. 

5.  Norris  v.  Lake  Drummond  Canal  & 
Water  Co.,   132  N.   C.   182. 

6.  Action  for  breach  of  a  covenant  in  a 
deed  alleging  a  conveyance  to  have  been 
made  to  the  Owensboro  Falls  of  Rough  and 
Green  River  R.  Co.,  and  a  deed  showing  that 
the  grantee  was  the  Owensboro  Falls  of 
Rough  &  Green  River  Branch  Railroad  Co. — 


734  CORPORATIONS.  §   10 

Denial  of  existence. — The  corporate  existence  or  capacity  of  a  plaintiff  to  sue 
is  not  put  in  issue  by  a  general  denial.^  The  corporate  existence  of  a  plaintiff  is 
sufficiently  denied  by  an  answer  denying  that  plaintiff  was  a  corporation  incorpo- 
rated under  the  laws  of  the  state,  and  that  if  it  were  so  incorporated  it  would  be 
governed  by  the  laws  of  the  state.*  Where  defendant's  answer  in  abatement  attack- 
ing the  power  of  plaintiff  to  act  as  a  corporation  is  not  sustained,  leave  to  answer 
further  may  be  refused  in  the  discretion  of  the  court.* 

Verification  of  pleadings. — Where  a  corporation  seeks  to  have  an  injunction 
dissolved  on  denial  of  the  grounds  contained  in  an  answer,  such  answer  must  be 
sworn  to.*° 

Pleading  corporate  liahility.^^ — In  pleading  liability  of  a  corporation  for  the 
acts  of  a  surgeon  employed  in  a  relief  department,  it  is  not  necessary  for  the  plain- 
tiff to  set  out  all  the  regulations  of  the  relief  department  in  order  to  show  an  obli- 
gation on  the  part  of  defendant  to  furnish  skillful  surgical  attendance  to  injured 
members ;  it  is  sufficient  to  aver  that  such  obligation  existed."  ^^Tiere  a  count  in  a 
declaration  alleges  that  a  corporation  is  indebted  to  plaintiff,  a  recovery  may  be 
had  under  such  count  based  on  an  estoppel  of  the  corporation  to  assert  that  the  con- 
tract on  which  the  indebtedness  arose  was  executed  by  the  corporation's  agent  as  an 
individual.^^ 

An  allegation  that  defendant  made  and  executed  an  instrument  to  plaintiff, 
which  by  reason  of  the  manner  in  which  such  instrument  is  addressed  amounts  in- 
ferentially  to  an  allegation  that  a  concern  named  therein  is  the  same  as  plaintiff,  is 
sufficient  after  answer.^* 

Variance. — On  an  issue  as  to  defendant's  right  to  receive  certain  money  from 
a  corporation,  evidence  as  to  amount  of  salaries  paid  the  officers  is  immaterial.^* 
Where  a  pleading  bases  a  right  to  recovery  on  a  loan  of  money,  there  is  a  fatal  vari- 
ance between  it  and  proof  that  the  money  was  paid  on  a  stock  assessment.^® 

Defenses. — In  an  action  by  a  corporation  to  recover  money  loaned,  the  defend- 
ant cannot  show  that  the  money  alleged  to  have  been  loaned  was  really  the  indi- 
vidual property  of  plaintiff's  treasurer  and  another.^^ 

Arrest  of  officers. — Officers  of  a  corporation  made  defendant  in  trover,  who  are 
not  parties,  cannot  be  committed  to  jail.^* 

Mandamus. — Where  a  duty  is  especially  imposed  by  law  on  a  corporation,  man- 
damus wiU  lie  to  enforce  it.^'  So  a  railroad  company  may  be  compelled  by  such 
remedy  to  restore  a  highway,  which  it  has  crossed,  to  a  safe  condition  or  to  such  a 


Chicago.  St.  L.  &  N.  O.  R.  Co.  v.  Wilson  (Ky.) 
76   S.  W.   138. 

7.  Chamberlain  Banking  House  v.  Kemper, 
etc..  Dry  Goods  Co.  (Neb.)  92  N.  W.  175. 
After  a  filing  of  a  plea  of  general  issue  and 
payment,  verified  by  the  president,  the  ex- 
istence of  defendant  as  a  corporation  is 
admitted — Bennett  v.  Millville  Imp.  Co.,  67 
N.   J.   Law,    320. 

8.  State  Ins.  Co.  v.  Farmers'  Mut.  Ins.  Co. 
(Neb.)   90  N.  W.  997. 

9.  United  States  Mortg.  Co.  V.  McClure, 
42  Or.  190,  70  Pac.  543. 

10.  Chancery  Practice  Rule  32,  Code,  p. 
1209,  requires  the  verification  of  an  answer 
in  such  cases  generally — Niehaus  v.  Cooke, 
134  Ala.  223. 

11.  It  must  be  averred  that  agency  for 
the  corporation  existed  at  the  time  of  the 
transaction    complained    of.     It    is    not    suffl 


12.  Haggerty  v.  St.  Louis,  K.  &  N.  W.  R 
Co.   (Mo.  App.)   74  S.  W.  456. 

13.  Congress  Const.  Co.  v.  Worcester 
Brew,  Co.,  182  Mass.  355. 

14.  An  order  for  a  safe  on  which  the 
complaint  was  based  directed  "Herring-Hall- 
Marvin  Co.,  La  Grande,  Ore.  April  1.  1901, 
Hall  Safe  and  Lock  Works.  San  Francisco." 
sufficiently  indicates  that  the  two  concerns 
named  were  identical — Herring-Hall-Marvin 
Co.  V.  Smith  (Or.)   72  Pac.  704. 

15.  Groh  V.  Groh,   80  App.  Div.   (N.  Y.)   85. 

16.  Stanton  v.  Baird  Lumber  Co.,  132  Ala. 
635. 

17.  St.  James  Co.  v.  Security  Trust  & 
Life  Ins.  Co..  81  N.  Y.  Supp.  739. 

18.  Hall  &  B.  Woodworking  Mach.  Co.  v. 
Barnes,   115   Ga.   945. 


clent  to  aver  agency  generally — Pratt  Land        19.     State  v.   New   Orleans   Gas   Light  Co., 
&  Imp.  Co.  V.  McClain,  135  Ala.  452.  1 108  La.  67. 


§  12 


LEGISLATIVE  CONTROL.     DISSOLUTION. 


735 


state  as  to  permit  its  free  use,^°  or  to  compel  a  telephone  company  to  supply  a  cus- 
tomer with  service.^^  Mandamus  will  not  lie  to  compel  the  restoration  of  a  train 
service  where  the  discretion  of  determining  accommodations  is  placed  by  the  stat- 
ute in  the  directors  of  the  railroad,  but  a  board  of  railroad  commissioners  may  de- 
termine the  reasonableness  of  their  action  and  enforce  its  determination  by  manda- 
mus.^^  Mandamus  will  not  issue  to  compel  the  treasurer  to  apply  a  certain  fund 
in  his  possession  to  the  payment  of  a  judgment.^^ 

§  11.  Legislative  control  over  corporations. — Wliere  the  charter  gives  the  cor- 
poration the  right  to  increase  its  bond  issue  for  purposes  incidental  to  the  business, 
and  to  purchase  its  capital  stock  for  retirement,  preferred  stockholders  do  not 
occupy  a  contract  relation  guaranteeing  that  the  issues  of  different  classes  of  stock 
and  of  stock  and  bonds  shall  remain  of  fixed  proportions,  and  therefore  legislative 
authorization  of  the  issuance  of  bonds  to  retire  stock  applicable  generally  to  corpo- 
rations does  not  impair  the  obligation  of  contracts,^*  especially  where  the  general 
incorporation  statute  reserves  the  power  in  the  legislature  to  alter,  suspend,  or  re- 
peal all  charters,^^  Such  a  statute  does  not  impair  the  vested  rights  of  stockholders 
if  its  only  effect  is  to  alter  the  manner  in  which  an  existing  right  may  be  effect- 
uated.^® Where  it  is  provided  that,  after  the  dividends  declared  on  stock  of  a  pri- 
vate corporation  shall  amount  to  the  full  sum  invested,  the  legislature  may  regulate 
the  charges  of  the  corporation  so  that  no  more  than  a  certain  sum  shall  be  divided 
on  the  capital  employed,  the  earnings  of  the  corporation  cannot  be  held  as  capital 
and  though  the  charges  are  not  regulated,  surplus  profits  may,  notwithstanding,  be 
exacted  by  the  state.  ^'^ 

§  12.  Eow  corporations  may  he  dissolved;  forfeiture  of  charter;  effect  of  dis- 
solution; winding  up  under  statutory  provisions. — A  corporation  is  not  disoolved  by 
the  fact  that  one  person  becomes  the  owner  of  all  the  stock,^^  and  the  fact  that 
one  is  a  sole  creditor  and  stockholder  of  a  corporation  does  not  allow  him  to  deal 
with  its  property  without  consideration  of  its  existence.^® 

Nonuser. — Where  a  corporation  is  chartered  for  the  purpose  of  holding  exhibi- 
tions and  for  the  general  promotion  of  agricultural  interests,  it  is  not  dissolved  by 
the  mere  fact  that  it  fails  to  hold  exhibitions.^" 

Failure  to  pay  bonus  tax. — A  provision  that  after  two  years'  default  in  the 
payment  of  a  bonus  tax  such  default  shall  constitute  a  forfeiture  of  the  charter  de- 
prives the  corporation  of  a  legal  existence  on  default  in  payment  though  during  the 
two  years  such  existence  may  be  regained  by  payment  of  the  tax.^^ 

Dissolution  by  consent  of  stockholders  or  directors. — The  stockholders  cannot 
dissolve  the  corporation,  where  it  is  created  by  special  act  and  no  method  of  disso- 
lution provided,  so  as  to  exempt  it  from  existing  liabilities.'''     Where  the  advisa- 


20.  Chicago,  I.  &  L.  Ry.  Co.  v.  State,  158 
Ind.  189.  So  where  a  railroad  has  been  using 
a  street  for  its  track — Town  of  Mason  v. 
Railroad   Co.,   51   W.   Va.   183. 

31.  State  V.  Kinloch  Tel.  Co..  93  Mo.  App. 
349;  Mahan  v.  Michigan  Tel.  Co.  (Mich.)  93 
N.   W.    629. 

22.  Laws  1890.  c.  565 — People  v.  Brooklyn 
Heights  R.  Co.,  172  N.  Y.  90. 

23.  The  only  allegation  of  possession  was 
that  the  treasurer  was  in  possession,  unless 
the  fund  had  been  expended  in  an  unauthor- 
ized way — Minchener  v.  Carroll,  135  Ala.  409. 

24.  2.'.  C.  H.  Venner  Co.  v.  United  States 
Steel  Corp..   116   Fed.   1012. 

26.  Act  March  28.  1902 — Berger  v.  United 
Stat«M!  Steel  Corp..   63  N.  J.  Eq.   809. 

27.  Local  Laws  1847,  p.  82,  §§  23,  24,  35 — 
Terra  Haute  &  L  R.  Co.  v.  State,  159  Ind.  438. 


28.  Geo.  T.  Stagg  Co.  v.  E.  H.  Taylor,  Jr. 
&  Sons,  24  Ky.  L.   R.    495,   68   S.  W.   862. 

29.  Watson  v.  Bonfils  (C.  C.  A.)  116  Fed. 
157. 

30.  Acts  1867,  c.  128;  Acts  1870,  c.  89; 
Acts  1890,  c.  73 — Nicolai  v.  Maryland  Agri- 
cultural &  Mechanical  Ass'n.   96  Md.   323. 

31.  Acts  Assem.  1898,  p.  1173,  c.  504; 
Poe's  Supp.  Code,  Pub.  Gen.  Laws,  art.  81, 
§§  88f,  88i — Cleaveland  v.  Mullin  (Md.)  54  Atl. 
665. 

32.  It  is  said  to  be  doubtful  whether  the 
corporation  may  be  terminated  for  any  pur- 
pose before  the  day  fixed  by  the  charter  on 
resolution  of  a  mere  majority  of  the  stock- 
holders— Economy  Bldg.  &  Loan  Ass'n  v. 
Paris  Ice  Mfg.  Co.,  24  Ky.  L.  R.  107,  68  S.  W. 
21. 


736 


CORPORATIONS. 


§  12 


bility  of  dissolution  is  by  statute  left  to  the  determination  of  the  board  of  directors, 
their  discretion  cannot  be  interfered  with  by  equity  and  dissolution  enjoined  by  a 
minority  stockholder.^'  "Uliere  dissolution  is  permitted  on  consent  in  writing  of 
the  owners  of  a  majority  of  the  stock,  dissolution  is  not  permitted  on  the  mere  vote 
of  a  majority  of  the  stockholders  in  favor  thereof  and  action  of  the  directors  pur- 
suant thereto;  there  must  also  be  a  publication  of  notice  of  dissolution  if  required 
by  statute  and  the  mere  fact  that  the  stockholder  was  present  at  the  meeting  at 
which  it  was  voted  to  dissolve,  does  not  release  the  corporation  from  liability  to 
him.'*  Where  it  is  alleged  that  a  surrender  of  a  corporate  franchise  was  effected 
by  the  action  or  nonaction  of  stockholders,  it  may  be  showTi  what  was  the  intention 
of  another  corporation  which  held  a  majority  of  the  stock.'* 

Insolvency. — A  corporation  is  not  dissolved  by  the  mere  fact  of  insolvency  in- 
capacitating it  to  continue  its  business,'^  nor  can  minority  stockholders  have  a  dis- 
solution of  a  corporation  in  the  absence  of  a  statute  on  the  mere  ground  that  it  is 
insolvent  and  that  its  business  is  being  carried  on  at  a  loss.'^  The  officers  of  a  cor- 
poration may  ask  for  its  dissolution  and  the  appointment  of  a  receiver,  where  its 
stock  and  assets  are  insufficient  to  pay  its  debts  or  where  the  interests  of  the  stock- 
holders require  it.'^  A  federal  bankruptcy  law  does  not  supersede  state  insolvency 
laws  as  to  a  corporation  engaged  principally  in  mining.'* 

Forfeiture  of  charter  and  franchises  in  judicial  proceedings  by  the  state. — In 
New  York,  the  attorney  general  may  institute  proceedings  for  the  dissolution  of  an 
insolvent  savings  loan  and  building  association  on  the  report  of  the  superintendent 
of  banking  without  a  relator.*"  The  corporate  existence  of  a  banking  institution 
or  a  savings,  loan,  and  building  association,  cannot  be  determined  by  an  action  in 
the  name  of  the  people,  unless  for  some  reason,  distinctly  stated,  it  has  forfeited  the 
right  to  exist  conferred  on  it  by  its  incorporation.*^  If  the  attorney  general  is  not 
authorized  to  bring  quo  warranto  proceedings  but  the  right  is  vested  in  the  county 
attorney,  a  waiver  of  objection  on  the  part  of  the  respondent  cannot  be  taken  ad- 
vantage of  by  the  attorney  general,  and  the  bill  is  properly  dismissed  on  the  merits 
where  there  is  no  showing  that  it  was  brought  by  the  prosecuting  attorney,  or  au- 
thorized by  him,  or  any  court,  or  the  governor  of  the  state.*''  An  act  for  the  pre- 
vention of  the  formation  of  monopolies  which  is  unconstitutional  does  not  become 
a  part  of  the  charter  contract  causing  its  violation  to  effect  a  forfeiture,  if  the  char- 
ter itself  did  not  require  the  company  not  to  do  the  acts  inhibited  by  the  statute.*' 

Receivership. — If  creditors  and  other  parties  in  interest  are  satisfied,  the  state 
cannot  have  a  receiver  though  the  corporation's  affairs  have  been  prematurely  or 
irregularly  settled.**     The  fact  that  a  corporation  violates  its  corporate  powers  does 


33.  General  Corp.  Act  of  New  Jersey — 
Windmuller  v.  Standard  Distillins  &  Dis- 
tributing Co.,   114   Fed.   491. 

34.  Economy  Bldg.  &  Loan  Ass'n  v.  Paris 
Ice  Mfg.  Co.,  24  Ky.  L.  R.  107,  68  S.  W.  21. 

35.  Manchester  St.  R.  Co.  v.  "Williams.  71 
N.  H.   312. 

36.  Ready   v.   Smith,    170  Mo.    163. 

37.  Worth  Mfg.  Co.  v.  Bingham  (C.  C.  A.) 
116   Fed.  785. 

38.  Code  Civ.  Proc.  §§  2419,  2423 — Zeltner 
V.  Henry  Zeltner  Brew.  Co.,  174  N.  T.   247. 

39.  R.  H.  Herron  Co.  v.  Superior  Ct.,  136 
Cal.   279,   68   Pac.   814. 

40.  New  York  Banking  Law,  §  18;  Code 
Civ.  Proc.  §§  1785,  1786,  1808 — People  v.  Man- 
hattan Real  Estate  &  Loan  Co.,  74  App.  Div. 
(N.  Y.)    535. 


41.  A  complaint  which  states  that  the 
expenses  of  defendant  during  the  past  year 
have  exceeded  its  income,  that  it  has  made 
contracts  which  are  claimed  to  be  improv- 
ident, that  if  a  particular  claim  is  valid, 
then  the  corporation  is  insolvent,  and  that  a 
superintendent  of  the  banking  department 
has  certified  to  the  attorney  general  that  it 
is  unsafe  and  inexpedient  for  defendant  to 
continue  business,  is  insufficient — People  v. 
Manhattan  Real  Estate  &  Loan  Co.,  175  N. 
Y.   133. 

42.  Balllnger's  Ann.  Codes  &  St.  §  5781 — 
State  V.  Seattle  Gas  &  Elec.  Co.,  28  Wash. 
488.  70  Pac.  114. 

43.  Rev.  St.  1895,  art.  5313;  Anti-Trust 
Law  1895 — State  v.  Shippers'  Compress  & 
Warehouse  Co.  (Tex.  Civ.  App.)  67  S.  W. 
1049. 


§  12 


DISSOLUTION. 


737 


not  authorize  the  appointment  of  a  receiver.*'^  Where  a  statute  authorizes  a  receiver 
for  a  corporation  having  no  official  empowered  to  hold  its  assets,  resignation  of  the 
officers  of  an  insolvent  corporation  for  the  express  purpose  of  placing  it  within  the 
intention  of  such  statute  will  be  ineffective. "«  Wliere  by  statute  appointment  of  a 
corporate  receiver  is  authorized  in  case  of  dissolution,  insolvency  or  danger  thereof, 
or  forfeiture  of  the  corporate  rights  and  in  other  cases  where  receivers  have  thereto- 
fore been  appointed  by  the  usages  of  courts  of  equity,  a  receiver  may  be  appointed, 
where  the  corporate  property  has  been  destroyed  by  fire,  to  take  charge  of  such  as  is 
left  and  receive  the  insurance  money,  the  corporation  not  being  in  active  operation, 
and  its  capital  stock  being  equally  divided  between  contending  factions.*^ 

Where  the  receiver  is  vested  with  corporate  assets,  he  has  power  to  take  steps 
to  vacate  an  invalid  judgment  against  the  corporation.*^  An  order  allowing  re- 
ceivers to  be  made  parties  to  a  stockholder's  action  against  corporate  directors,  but 
denying  the  right  to  seek  to  impose  any  individual  liability  or  representative  lia- 
bility,  does  not  prevent  the  setting  up  of  a  cause  of  action  against  the  directors  for 
negligent  management  and  the  seeking  of  annulment  of  a  release  made  by  the  re- 
ceivers to  the  directors  and  their  compulsion  to  account  to  the  receivers,  also  that 
the  receivers  collect  the  same  for  the  plaintiff  or  that  plaintiff  be  authorized  to 
collect  it  individually." 

Creditors  cannot  assert,  as  against  a  former  receiver  of  a  corporation,  mis- 
management and  conversion  of  the  corporate  assets,  such  right  existing  in  the  sub- 
sequent receiver  alone.^** 

An  attorney  employed  to  resist  the  appointment  of  a  receiver  may  be  paid  from 
funds  realized  on  sale  by  the  receiver,  though  he  is  also  counsel  for  the  general  man- 
ager of  the  corporation.^^ 

Procedure  and  jurisdiction. — Charter  provisions  as  to  notice  of  meetings  tend- 
ing toward  dissolution  are  mandatory.^^  Where  efforts  of  minority  stockholders  to 
secure  a  sale  of  the  corporate  property  and  the  distribution  of  its  assets  would  be 
unavailing  for  the  reason  that  a  vote  of  the  majority  stockholders  cannot  be  ob- 
tained, not  on  account  of  their  unwillingness,  but  on  account  of  their  lack  of  in- 
terest in  the  affairs  of  the  corporation,  the  minority  stockholders  may  maintain  a 
bill  in  equity  to  secure  a  distribution  of  its  assets."*'  The  grounds  for  dissolution 
must  be  specifically  alleged.^*  An  order  to  show  cause  in  a  proceeding  for  volun- 
tary dissolution  of  a  corporation  may  be  amended  nunc  pro  tunc  by  insertion  of  the 


44.  state  V.  New  Orleans  Debenture  Re- 
demption Co.,   107  La.  562. 

45.  In  a  proceeding  to  enjoin  a  lease  of 
water  works  prcierty,  a  receiver  cannot  be 
appointed,  no  fraad  or  mismanagement  be- 
ing shown — New  Albany  Waterworks  v. 
Louisville  Banking  Co.  (C.  C.  A.)  122  Fed. 
776. 

46.  Code  Civ.  Proc.  §  1810,  subd.  3 — Zelt- 
ner  v.  Henry  Zeltner  Brew.  Co.,  174  N.  T. 
247. 

47.  Rev.  St.,  subds.  5.  6,  §  4329 — Gibbs  V. 
Morgan    (Idaho)    72  Pac.  733. 

48.  Yorkville  Bank  v.  Henry  Zeltner 
Brew.  Co.,  80  App.  Div.   (N.  Y.)    578. 

49.  Craig  v.  James,  80  App.  Dlv.  (N.  T.) 
16. 

50.  Boyd  V.  Mutual  Fire  Ass'n  (Wis.)  90 
N.  W.  1086. 

51.  Commonwealth  v.  Penn.  Germanla 
Bldg.  &  Loan  Ass'n,   204  Pa.  29. 

52.  Davies  v.  Monroe  Water  Works  & 
Light  Co.,  107   La.   145. 

Cur.  Law — 47. 


53.  Bill  to  secure  the  sale  of  land  of  a 
town-site  company  organized  during  boom 
times,  the  purposes  of .  which  had  become 
impossible,  whose  stockholders  had  aban- 
doned it,  and  whose  property  was  being 
sold  yearly  to  pay  taxes — Noble  v.  Gadsden 
Land  &  Imp.  Co.,   133  Ala.   250. 

54.  A  bill  which  seeks  the  termination 
of  a  corporation  on  the  ground  that  the 
original  corporators  are  all  deceased  except 
complainant,  should  specifically  show  that 
no  additional  members  have  been  admitted 
who  have  kept  up  the  organization  and  It 
is  not  sufficient  to  aver  that  no  successors 
have  been  named  and  no  vacancies  filled — 
Nicolai  v.  Maryland  Agricultural  &  Me- 
chanical Ass'n,  96  Md.  323.  Where  the  mem- 
bers seek  the  dissolution  of  a  corporation, 
complainant's  interest  and  the  facts  of  In- 
solvency must  be  specifically  alleged — Polk 
v.  Mutual  Reserve  Fund  Life  Ass'n,  119  Fed 
491. 


738 


CORPORATIONS. 


§  12 


return  day  named  in  the  copy  of  the  order  served  on  a  creditor,  the  creditor  having 
entered  a  general  appearance  on  such  day  and  then  on  discovering  that  the  return 
day  was  omitted  from  the  original  order  moved  to  dismiss.^^ 

Where  an  order  of  distribution  is  reversed  on  appeal,  and  certain  unpreferred 
creditors  are  allowed  to  share  in  a  particular  fund,  the  order  of  distribution  will  be 
stayed  below  in  order  to  allow  another  creditor  of  the  same  class  opportunity  to 
appeal,  leave  having  been  previously  denied  him  though  he  had  excepted  to  the  re- 
ceiver's report.°° 

Effect  of  dissolution. — Though  the  corporate  existence  has  expired  by  the  ter- 
mination of  its  charter  and  of  the  time  for  settling  its  affairs,  the  assets  may  be 
collected  by  the  stockholders  or  their  representatives.^^  Under  the  Kentucky  stat- 
ute, a  corporation  continues  to  exist  for  the  purpose  of  being  sued  until  its  debte 
are  paid.^* 

Notwithstanding  a  decree  in  a  state  court  declaring  a  corporation  dissolved  and 
appointing  receivers,  a  federal  court  may  have  jurisdiction  of  a  creditor's  petition 
to  have  the  corporation  adjudged  a  bankrupt.^'  After  a  corporation  has  been  dis- 
solved on  insolvency  and  it  has  no  corporate  existence,  one  recovering  a  judgment 
against  it  cannot  examine  a  third  party  under  supplementary  proceedings.®" 

An  execution  obtained  pending  voluntary  dissolution  of  a  corporation  will  not 
be  dissolved,  but  where  corporate  propert}'  has  been  placed  in  the  hands  of  a  per- 
manent receiver,  it  cannot  be  sold  on  an  execution  issued  without  leave  of  court.®^ 
A  corporation  pending  such  dissolution  may  move  to  vacate  the  execution  and  re- 
strain a  sale  though  its  receiver  is  not  a  party  to  the  motion.®^ 

Where  a  person  is  served  with  process  as  president  of  a  corporation,  he  may 
show  that  the  corporation  has  been  dissolved  and  is  not  liable  to  suit.*'^ 

Continuance  and  winding  up  under  statutory  provisions.'^* — Where  by  statute, 
after  the  termination  of  a  corporation  by  limitation,  the  directors  become  trustees 
to  wind  up  its  affairs,  one  director  may  maintain  an  action  in  equity  to  remove  the 
rest  and  for  the  appointment  of  a  receiver,  if  his  bill  disclose  that  the  trustees  have 
denied  liability  on  notes  which  they  have  given  to  the  company  and  which  are  a  part 
of  their  assets  and  are  making  no  effort  to  collect  them.®^  Statutes  providing  that 
trustees  on  dissolution  shall  be  trustees  for  the  creditors  and  stockholders  with 
power  to  collect  the  assets  and  make  settlement  with  the  creditors,  and  division 
among  the  stockholders  apply  only  to  dissolution  proceedings  under  the  same  stat- 
ute.®* After  the  expiration  of  a  period  for  the  filing  of  objections  to  claims  filed, 
those  who  have  filed  claims  are  to  be  regarded  as  creditors  who  are  entitled  to  object 
to  illegal  claims."^ 


65.  Code  Civ.  Proc.  §§  723,  724 — In  re  Quo 
Vadls   Amusement  Co.,   81   N.  Y.   Supp.   394. 

56.  People  V.  American  Loan  &  Trust  Co., 
39  Misc.   (N.  Y.)   647. 

57.  Connecticut  Mut.  Life  Ins.  Co.  v.  Duns- 
comb,   108   Tenn.    724. 

58.  Economy  Bldg.  &  Loan  Ass'n  v.  Paris 
Ice  Mfg.  Co..  24  Ky.  L.  R.  107,  68  S.  W.  21. 

59.  Proceeding  under  Code  of  Maryland, 
art.  23,  does  not  prevent  a  proceeding  under 
the  national  bankruptcy  act — In  re  Storck 
Lumber  Co..  114  Fed.   360. 

60.  •  Assessment  life  insurance  companies 
incorporated  and  dissolved  under  laws  of 
Illinois — In  re  Stewart,    40   Misc.    (N.   Y.)    32. 

61.  62.  Fox  V.  Union  Turnpike  Co.,  37  Misc. 
(N.   Y.)    308. 


63.  Economy  Bldg.  &  Loan  Ass'n  v.  Paris 
Ice  Mfg.   Co.,   24   Ky.   L.   R.   107,   68   S.   W.    21. 

64.  Facts  held  not  to  show  grounds  for 
winding  up  a  land  and  improvement  cor- 
poration under  Acts  Extra  Sess.  1901.  p.  326, 
c.  298,  permitting  the  winding  up  In  chan- 
cery of  a  corporation,  the  purpose  of  which 
has  failed,  the  management  of  which  has 
been  abandoned  or  which  has  become  Insol- 
vent or  the  assets  of  w^hich  are  being  con- 
sumed without  benefit  or  probable  benefit 
to  the  stockholders — Radford  VVest  End 
Land  Co.  v.   Cowan   (Va.)    44  S.   E.   753. 

65.  Buckley  v.  Anderson  (Ala.)   34  So.  238. 

66.  1  Ball.  Ann.  Codes  &  St.  §§  4274,  4275— 
New  York  Nat.  Exch.  Bank  v.  Metropolitan 
Sav.  Bank,   28  Wash.  553,  68  Pac.   905. 

67.  Proceedings  to  wind  up — Olmstead  v. 
Vance  &  Jones  Co.,  196  til.  236. 


§   13  SUCCESSION.     CONSOLIDATION.  739 

§  13.  Succession  of  corporations;  reorganization;  consolidation.^^ — There 
must  be  legal  authority  before  corporations  can  consolidate.^^  Where  the  charter 
any  by-laws  of  a  corporation  and  the  statute  under  which  it  was  created  vest  in  the 
stockholders  a  right  of  sale  of  the  corporate  properties,  and  discontinuance  of  the 
corporate  existence,  such  power  may  be  exercised  by  them  pursuant  to  laws  of  the 
state  to  which  the  corporation  owes  life.^°  A  transfer  of  the  property  of  a  do- 
mestic corporation  to  a  foreign  corporation  except  the  franchises  of  its  being  a 
corporation,  the  foreign  corporation  to  issue  paid  up  stock  to  stockholders  of  the  do- 
mestic corporation  or  to  make  a  cash  payment  of  less  than  the  face  value  thereof  to 
stockholders  refusing  to  accept  such  paid  up  stock  operates  as  a  dissolution  and 
may  be  carried  out  only  by  proceedings  under  the  statute  governing  dissolution.^* 

Organization  of  new  corporation. — Persons  are  not  prevented  from  organizing 
a  corporation  by  the  fact  that  they  are  stockholders  in  another  and  the  latter  cor- 
poration may  sell  its  property  to  the  new  corporation  or  the  promoter  thereof  be- 
fore the  corporation  is  completed,"  so,  the  stockholders  and  officers  of  a  corporation 
may  make  an  agreement  with  others  whereby  a  new  corporation  is  formed  which 
takes  all  the  assets  of  the  old  and  makes  paj-raent  by  issuing  its  stock  to  the  stock- 
holders of  the  old.''^  In  such  case,  a  new  corporation  will  be  regarded  as  holding 
the  assets  of  the  old  in  trust  for  the  creditors  of  the  old.^* 

Where  a  corporation  surrenders  its  property  to  another  corporation  and  lis 
stockholders  surrender  its  stocks  and  bonds,  which  are  canceled  and  replaced  by 
stock  and  bonds  of  the  new  corporation,  the  transaction  is  to  be  regarded  as  a  con- 
solidation.'^' 

Rights  of  stockholders. — Minority  stockholders  cannot  have  an  agreement,  by 
which  a  consolidation  has  been  effected,  set  aside  or  enjoined  unless  wrong  and  in- 
jury is  clearly  shown  to  have  been  done  them  or  the  corporation.'^'' 

If  a  consolidation  is  effected  without  authority,  wrongfully,  or  without  thp 
consent  of  the  stockholders  or  under  a  right  acquired  after  the  stockholder  has  sub- 
scribed to  his  stock,  a  dissenting  stockholder  may  recover  the  value  of  his  shares, 
but  if  the  corporation  is  organized  under  a  statute  authorizing  the  consolidation  of 
corporations  it  receives  the  statute  as  part  of  the  subscription  contract,  and  the 
nonassenting  stockholder  is  not  entitled  to  cash  pa3rment  for  his  shares.'''^  The 
stockholder  cannot  object  to  a  properly  effected  consolidation  though  he  cannot  be 
forced  into  the  new  corporation  without  his  consent,^*  and  the  mere  fact  of  con- 
solidation does  not  give  him  the  right  to  have  the  corporate  assets  converted  into 


68.  See  article  "Combinations  and  Mon- 
opolies" for  illegality  of  consolidation  and 
other  agreements  between  corporations  as 
creating  monopolies  or  violating  "anti -trust" 
statutes. 

69.  Overstreet  v.  Citizens'  Bank  (Okl.)  72 
Pac.    379. 

70.  Majority  stockholders  held  to  have 
power  to  transfer  corporate  property  to  an- 
other corporation  under  Code  W.  Va.  1899, 
c.  53,  §§  56,  59 — Metcalf  v.  American  School 
Furniture   Co.,    122    Fed.    115. 

71.  Coler  v.  Tacoma  Ry.  &  Power  Co.   (N. 


75.  Rendering  the  new  corporation  liable 
for  the  debts  of  the  old — Shadford  v.  Detroit 
Y.  &  A.  A.  Ry.   (Mich.)   89  N.  W.  960. 

76.  Evidence  held  insufficient  to  show 
fraud  and  conspiracy  on  the  part  of  the 
directors  authorizing  an  annulment  of  the 
consolidation — Dickinson  v.  Consolidated 
Traction  Co.,  114  Fed.  232.  A  showing  that 
a  new  company  has  been  organized  which 
has  set  apart  a  portion  of  its  stock  to  be 
exchanged  for  the  stock  of  an  old  company, 
and  that  a  large  majority  of  the  share- 
holders of  the  old  corporation  consent  to 
the    exchange,    does    not    show    a    fraudulent 


J.  Law)  54  Atl.  413.  .  intent    on    the    part    of    the    old    company    to 

72.     Goodwin    v.   Bodcaw   Lumber   Co..    109    dispose    of    all    its    property    which    justifies 


La.    1050. 

73,  74.  Such  an  arrangement  may  be  dis- 
turbed by  the  creditors  of  the  old  corpora- 
tion, only  as  far  as  necessary  to  secure  their 
claims — Wilson  v.  Aeolian  Co.,  64  App.  Div. 
(N.  T.)  337. 


an    injunction — Odlin   v.    Bingham    Copper    & 
Gold  Min.  Co.   (N.  J.  Law)   51  Atl.  925. 

77.  Mayfield   v.   Alton   Ry.  Gas   &  Electric 
Co.,  198  111.   528. 

78,  79.     Mayfield  v.  Alton  Ry.,    Gas  &  Elec- 
tric Co..   100  111.  App.  614. 


740 


CORPORATIONS. 


§   13 


money,  but  such  right  is  not  acquired  by  the  stockholder  until  the  corporation 
reaches  the  winding  up  stage.''®  Delivery  of  stock  to  a  committee  to  be  exchanged 
for  stock  in  the  new  corporation  transfers  it  such  a  title  as  will  permit  a  subsequent 
purchaser  in  good  faith  from  the  committee  to  hold  it  free  from  equities  in  favor  of 
the  original  holder.*"  A  mere  pledgee  who  has  not  become  a  registered  stockholder, 
though  the  shares  were  assigned  in  blank  by  the  registered  owner,  is  not  entitled  to 
participation  in,  or  notification  of,  proceedings  to  effect  a  consolidation  of  the  cor- 
poration with  another.*^  An  agreement  between  the  directors  of  constituent  cor- 
porations in  proceedings  towards  a  consolidation  that  matters  left  unadjusted  should 
be  adjusted  pursuant  to  a  memorandum  of  agreement  which  had  been  entered  into 
by  the  holders  of  more  than  a  majority  of  the  stock  of  the  constituent  corporations 
is  binding  on  stockholders  who  signed  the  consolidation  agreement  as  directors.*^ 

Wliere  there  is  an  arrangement  by  which  capital  stock  of  an  old  corporation 
is  taken  in  return  for  a  similar  number  of  shares  of  the  capital  of  a  new  corpora- 
tion with  double  the  amount  of  the  capital  stock,  there  is  no  confiscation  of  the  value 
of  the  shares  so  turned  in,  unless  the  remainder  of  the  new  company's  stock  is  not 
subscribed  in  good  faith  and  docs  not  equal  the  par  value  of  that  stock  which  is 
taken  over.**^  An  agreement  to  exchange  stock  for  stock  in  a  consolidated  com- 
pany may  be  valid,  though  the  number  of  corporations  consolidated  have  not  a  ca- 
pacity equal  to  that  originally  contemplated.** 

Where  on  consolidation  of  corporations  into  a  holding  company  the  holding 
company  issues  collateral  trust  bonds  under  a  plan  for  securing  working  capital  for 
all  constituent  companies,  the  stockholders  of  one  of  the  constituent  companies  can- 
not object  to  a  pledge  of  the  constituent  compan^^s  bonds  as  collateral  for  the  col- 
lateral trust  bonds  of  the  holding  company  part  of  the  proceeds  of  which  the  con- 
stituent company  has  received  as  working  capital.  The  constituent  company  is 
properly  charged  with  a  portion  of  the  expense  of  securing  the  loan  by  the  holding 
company  and  the  question  of  usury  cannot  be  raised  before  the  repayment  of  the 
debt." 

Where  a  corporation  which  has  acquired  the  property  of  other  corporations  is 
in  its  turn  merged  into  a  holding  corporation  its  stockholders  cannot,  in  a  suit 
against  the  holding  corporation,  assert  that  there  was  a  misappropriation  or  diver- 
sion in  the  amount  paid  for  one  of  its  constituent  properties,  it  not  being  shown 
that  there  was  any  fraud  or  breach  of  trust  on  the  part  of  its  directors  for  the  bene- 
fit of  the  holding  company  or  its  directors.*** 

Where  a  street  railroad  leases  its  property  at  a  specified  rental  based  on  a  per- 
centage of  its  value,  such  lease  is  not  a  fraud  on  minority  stockholders  as  a  limita- 
tion of  annual  dividends.     It  will  be  presumed  that  the  directors  acted  in  good 


80.  Jewell  V.  Mclntyre.  62  App.  Div.  (N. 
Y.)    396. 

81.  "Where,  on  consolidation  of  corpora- 
tions it  is  agreed  that  the  portion  of  the 
Steele  assigned  to  one  of  the  constituent 
companies  should  be  applied,  first  to  the 
payment  of  its  floating  indebtedness,  and 
then  apportioned  among  the  stockholders, 
and  the  stoclc  is  delivered  to  an  agent  of 
the  constituent  company  for  such  purpose, 
the  now  corporation  is  not  liable  to  a  pledgee 
of  the  stock  of  the  old  company  who  is  not 
a  stockholder  of  record,  for  a  conversion 
of  the  stock  to  which  his  pledgor  would  be 
entitled   under   the   consolidation   agreement, 


and  such  distribution  of  the  shares  of  the 
consolidated  company  is  not  a  violation  of 
the  provision  in  stock  certificates  of  the  con- 
stituent company  that  they  were  transfer- 
able on  the  books  only  on  surrender  of  the 
certificates — Cleveland  City  Ry.  Co.  v.  First 
Nat.  Bank  (Ohio)    67  N.  E.  1075. 

S3.     Cleveland    City    Ry.    Co.    v.    First    Nat. 
Bank    (Ohio)    67    N.    E.    1075. 

83.  Mayfield  v.  Alton  Ry.,  Gas  &  Electric 
Co..   198   111.   52S. 

84.  Jewell    V.   Mclntyre,    62   App.   Div.    (N. 
T.)    396. 

85.  86.     Dittman  v.  Distilling  Co.  of  Amer- 
ica (N.  J.  Ea  )  54  Atl.  570. 


§  13 


CONSOLIDATION.     RIGHTS  OF  BONDHOLDERS. 


741 


faith.*''  Where  a  lessee  is  operating  the  franchise  of  two  street  railroad  corpora- 
tions, a  stockholder  in  a  lessor  company  has  no  right  of  action  against  tlie  city  aris- 
ing from  an  ordinance  requiring  the  giving  of  transfers  and  such  ordinance  cannot 
be  set  up  in  connection  with  a  bill  alleging  an  infringement  of  the  contract  rights 
of  the  lessor  under  its  franchise.®^ 

On  the  consolidation  of  corporations  the  directors  of  a  constitutent  corpora- 
tion may  agree  that  the  company  shall  come  in  free  from  debt,  and  that  enough  of 
the  stock  apportioned  to  one  of  the  companies  shall  be  sold  to  pay  its  indebtedness 
and  the  remainder  distributed  among  the  preferred  and  common  stockholders  in 
proportion  to  the  relative  value  of  such  stock.^* 

If  a  corporation  absorb  another,  its  stockholders  cannot  avail  themselves  of  the 
relief  existing  in  favor  of  the  members  of  the  corporation  which  is  illegally  ab- 
sorbed.®" 

Rights  of  bondholders. — A  bondholder  who  has  joined  other  bondholders  in  a 
plan  of  reorganization  pursuant  to  which  the  property  was  sold  in  foreclosure  and 
the  bonds  and  matured  coupons  were  used  in  payment  of  the  sale  price  is  not  en- 
titled to  the  benefits  of  the  agreement  until  he  has  placed  himself  on  the  same  foot- 
ing as  other  parties  thereto,  if  before  depositing  his  bonds  he  detached  the  matured 
coupons  and  secured  their  payment  from  the  proceeds  of  the  sale,  and  until  he  has 
restored  such  payment  cannot  have  the  bonds  of  the  company  formed  on  reorganiza- 
tion which  under  the  agreement  were  to  be  delivered  to  those  joining  therein.*^ 

Subsequent  bond  issues. — Where  there  is  an  agreement  by  the  stockholders  of 
two  corporations  to  dispose  of  the  surplus  of  a  bond  issue  on  consolidation,  the 
validity  of  the  transaction  cannot  be  questioned  save  by  dissenting  stockholders  or 
creditors  of  the  estate.®^  On  consolidation,  an  agreement  that  there  should  be  a 
bond  issue  to  take  up  the  debts  of  one  of  the  corporations,  and  that  any  surplus 
should  be  divided  among  the  stockholders  of  the  two  corporations,  is  based  on  a 
good  consideration,  the  distribution  of  the  surplus  being  regarded  as  a  portion  of 
the  purchase  money.  The  right  to  the  surplus  does  not  pass  to  a  transferee  of  the 
stock,  being  an  individual  right  of  the  stockholder.  It  is  not  affected  by  the  fact 
that  the  mortgage  makes  no  mention  thereof.  The  surplus  contemplated  is  the 
excess  of  the  amount  of  the  issue  over  the  bonds  outstanding,  and  it  will  not  be 
held  to  include  the  market  appreciation  of  the  collateral  bonds.*^ 

Effect  on  existing  rights. — Though  a  new  corporation  succeeds  to  the  rights  of 
an  old  corporation,  it  may  be  subject  to  statutes  which  are  retroactive  in  effect  as 
to  the  old  corporation."*  On  consolidation  of  street  railroad  corporations,  the  new 
corporation  succeeds  to  all  the  rights  of  the  constituent  corporation  as  to  consents 
of  abutting  owners  to  the  construction  of  the  road.®"*  Where  the  corporation  ac- 
quires the  property  and  franchises  of  another,  a  transfer  of  land  to  the  latter  will 
pass  title  to  the  former.*® 

Tlie  fact  that  one  has  been  enjoined  from  manufacturing  an  article,  patent 
to  which  was  owned  by  the  corporation,  will  not  excuse  his  failure  to  furnish  such 


87.  Ninety-nine  year  lease  at  7  per  cent, 
rental — Wormsor  v.  St.  Ry.  Co.,  73  App.  Div. 
(N.   Y.)    G26. 

88.  Elkln3  V.  City  of  Chicago,  119  Fed. 
957. 

89.  Cleveland  City  Ry.  Co.  v.  First  Nat. 
Bank    (Ohio)    67   N.   E.    1075. 

90.  Continental  Nat.  Building  &  Loan 
Ass'n    V.    Miller    (Fla.)    33    So.    404. 

91.  Fuller  V.  Venable  (C.  C.  A.)  118  Fed. 
643. 


92.  Read    v.    Citizens'    St.    R.    Co.    (Tenn.) 
75  S.  W.   1056, 

93.  Read  V.  Citizens'  St.  R.  Co.  (Tenn.)  76 
S.  W.   1056. 

94.  Miieag-e  book  act,  Laws  1895,  c.  1027 — 
Minor  v.  Railroad  Co.,  171  N.  Y.  666. 

95.  Adee    v.    Nassau    Electric    R.    Co..    «5 
App.  Div.   (N.  Y.)    529. 

96.  Railroad    companies — Smith    v.     Rail- 
road Co.,  72  S.  W.   1088,  24  Ky.  L.  R.  2040.    . 


742 


CORPORATIONS. 


§  13 


articles  under  an  agreement  of  sale,  if  prior  to  the  entry  of  the  decree,  he  has  ac- 
quired control  of  the  complainant  corporation  by  purchase  of  its  stock.^' 

\Vliere  after  an  action  is  begim  on  a  policy  within  a  year  as  provided  by  the 
contract  with  an  insurance  company,  the  company  effects  a  consolidation  with  an- 
other company,  the  action  does  not  abate  as  not  having  been  brought  within  the 
year,  though  the  consolidation  is  after  such  time  has  expired.*^  An  amendment 
making  the  consolidated  company  defendant,  and  dismissing  as  to  the  original  de- 
fendant, is  proper.'^ 

Assumption  of  liabilities. — A  corporation  on  being  merged  in  another  corpora- 
tion which  assumes  its  obligations  has  no  further  liability  for  future  transactions 
and  can  create  no  new  obligations.^  The  relation  of  corporations  having  such  mu- 
tual interests  that  one  is  in  reality  a  branch  of  the  other  is  a  sufBcient  consideration 
for  an  assumption  by  one  of  the  liabilities  of  the  other.^ 

Where  the  transfer  of  the  property  of  one  corporation  to  another  is  on  con- 
sideration of  the  assumption  of  the  transferror's  contracts,  the  transferee  becomes 
liable  thereon.^  If  certain  debts  are  enumerated,  the  liability  is  only  to  the  extent 
thereof.*  If  the  facts  warrant  a  finding  that  a  new  corporation  is  a  mere  continua- 
tion of  an  old  it  is  liable  for  the  debts  thereof.^  The  insolvency  of  one  of  the  for- 
mer corporations  affords  no  defense  as  against  a  proceeding  to  recover  a  debt  due 
from  it  against  the  new  corporation.^ 

A  street  railroad  corporation  which  purchases  the  franchise  of  another  takes 
subject  to  the  duties  of  such  a  corporation  and  may  be  compelled  to  discharge  them 
by  mandamus,  but  the  transferring  corporation  is  thereafter  not  subject  to  such 
remedy.'' 

A  railroad  company  is  not  chargeable  on  the  contracts  or  for  the  torts  of  a  cor- 
poration to  which  it  succeeds  in  title  unless  it  has  assumed  such  liability  or  is  charge- 
able therewith  by  law,  though  statutes  provide  that  corporations  using  the  franchise 
of  another  corporation  shall  be  subject  to  the  burdens  that  are  imposed  by 
such  franchise.^  Where  the  property  of  a  railroad  company  has  been  transferred  to 
another  after  an  injury,  a  complaint  against  the  two  companies  is  not  demurrable 


»7.  McElroy  v.  American  Rubber  Tire  Co. 
(C.  C.  A.)   122  Fed.   441. 

08.  Franklin  Life  Ins.  Co.  v.  Hickson,  197 
in.  117. 

09.  Construing  Kurd's  Rev.  St.  1S99,  p.  444 
c.  32,  pp.  56,  65;  Practice  Act,  par.  24 — 
Franklin  Life  Ins.  Co.  v.  Hickson,  197  111. 
117. 

1.  City  of  New  York  v.  Railroad  Co.,  77 
App.  Div.    (N.   Y.)    367. 

3.     Kendall  v,  Klapperthal  Co.,  202  Pa.  396. 

3.  Rehberg  v.  Tontine  Surety  Co.  (Mich.) 
91  N.  W.  132.  Evidence  held  insufficient  to 
show  an  agreement  by  a  corporation  which 
received  the  assets  to  pay  its  debts — Central 
Electric  Co.  v.  Sprague  Electric  Co.  (C.  C. 
A.)    120    Fed.    925. 

4.  Not  liable  for  a  bank  check  issued 
eight  months  prior  to  the  sale  and  not 
enumerated  In  the  list,  no  fraud  being  al- 
leged or  shown — Anderson  v.  Mining  Co. 
(Idaho)   72  Pac.  671. 

5.  Evidence  held  sufHclent  to  establish 
such  a  finding — Douglas  Printing  Co.  v.  Over 
(Neb.)  95  N.  W.  656.  The  fact  that  one  who 
Is  the  general  manager  and  owner  of  a  large 
part  of  the  stock  becomes  the  general  man- 


ager of  another  corporation  with  which  the 
first  is  consolidated  does  not  render  the 
new  corporation  liable  for  the  debts  of  the 
old,  though  it  purchases  nearly  all  the  stock 
and  property  of  the  former — Crissey  v.  Cook 
(Kan.)  72  Pac.  541.  Where  a  corporation 
which  has  procured  the  property  of  other 
corporations  by  purchase,  transfers  all  such 
property  together  with  its  own  to  a  new 
company,  such  company  will  not  be  regarded 
as  a  reorganization  or  consolidation  of  the 
old  authorizing  its  substitution  as  defendant 
in  a  suit  originally  brought  against  the  old 
corporation — Sartison  v.  Railroad  Co.,  103 
111.  App.  507. 

6.  It  cannot  be  contended  that  since  the 
original  debtor  was  insolvent,  the  creditor 
was  not  Injured  by  the  consolidation — Shad- 
ford  v.   Railway   (Mich.)    89  N.  W.   960. 

7.  Comp.  Laws  1897,  §  6448 — Township  of 
Grosse  Pointe  v.  Railway  (Mich.)  90  N.  W. 
42. 

8.  Under  Civ.  Code.  5  1863,  a  railroad 
company  operating  a  line  of  another  com- 
pany is  not  liable  for  damages  resulting 
from  a  breach  of  a  contract  entered  into  by 
such  company — Seaboard  Air-Line  Ry.  v. 
Leader,  115  Ga.  702. 


§  13 


SUCCESSION.     ASSUMPTION  OF  LIABILITIES. 


743 


on  the  ground  that  the  judgment  could  be  enforced  as  against  the  transferee  only 
to  the  extent  of  the  transferror's  property.^ 

On  a  merger  of  street  car  companies  into  a  new  corporation,  which  assumes  the 
obligations  of  the  corporations  merged,  municipal  assessments  which  were  distinct 
against  the  property  of  several  corporations  become  a  single  lien  attaching  to  the 
new  corporation's  property  as  a  whole,  but  such  lien  does  not  become  a  prior  lien  as 
against  a  mortgage  on  the  property  of  one  of  the  constituent  railroad  companies  and 
as  to  property  covered  by  the  mortgage;  the  original  priorities  must  be  observed.^" 
On  a  lease  subject  to  all  debts  and  liabilities,  the  lessee  is  not  liable  for  previously 
,  accruing  license  fees.^^ 

A  creditor  may  bring  an  action  at  law  against  a  purchasing  corporation  which 
on  taking  the  assets  of  another  has  agreed  to  pay  its  debts.^^ 

Estoppel  to  assert  defenses. — One  holding  a  judgment  for  accrued  dividends, 
who  enters  into  a  reorganization  of  the  corporation,  cannot  assert  his  judgment 
against  the  assets  of  the  new  corporation  to  the  prejudice  of  other  creditors.^^  After 
consolidation,  the  resulting  corporation  cannot  contend  that  the  act  was  illegal  as 
against  a  creditor  of  one  of  the  former  corporations  so  long  as  it  receives  and  re- 
tains all  the  property  of  the  constituent  corporations.** 

Rights  of  creditors  to  follow  assets  of  old  corporation. — A  corporation  which 
takes  the  assets  of  and  continues  the  business  of  another  corporation,  as  its  suc- 
cessor, is  liable  to  a  plaintiff  in  an  action  pending  against  the  second  corporation 
to  the  extent  of  the  property  which  it  receives.*^  A  creditor  of  the  former  corpo- 
ration may  follow  the  assets,  though  some  of  the  stockholders  in  the  new  corpora- 
tion were  not  aware  of  his  claim.^®  The  right  to  follow  such  assets  is  not  removed 
by  a  statute  which  furnishes  a  remedy  in  favor  of  creditors  against  corporate  offi- 
cers who  have  transferred  its  property  to  themselves  or  others.*^ 

Agreements  to  pay  dividends. — An  agreement  by  a  corporation  which  purchased 
another  corporation  to  pay  fixed  sums  to  those  stockholders  of  the  latter  corporation 
who  exchanged  their  stock  for  its  stock,  such  sum  to  be  paid  in  a  fixed  amount 
semi-annually,  is  invalid  as  an  agreement  to  pay  the  dividends  whether  the  profits 
were  earned  or  not,  and  a  purchaser  of  certificates  of  indebtedness  issued  under 
such  agreement  which  contain  a  reference  thereto  acquires  no  greater  rights  than 
the  original  holders,  though  the  certificates  are  negotiable  in  form  and  acquires  no 
greater  rights  on  the  ground  of  estoppel  by  the  fact  that  the  issuing  corporation 
takes  the  originals  from  him  and  issues  new  ones  directly  to  him.*® 

Determination  of  legality  of  consolidation. — The  legality  of  merger  of  corpora- 
tions cannot  be  determined  in  an  injunction  proceeding,*®  and  the  exercise  of 
powers  conferred  by  the  corporate  charter  will  not  be  enjoined  on  the  ground  that 
rheir  effect  will  be  to  create  a  monopoly.'*"     A  dissenting  stockholder  cannot  object 


9.  citizens'  St.  R.  Co.  v.  Shepherd,  29  Ind. 
App.  412. 

10.  City  of  Lincoln  v.  Lincoln  St.  Rail- 
way Co.   (Neb.)    93  N.  W.   766. 

11.  Lease  of  a  street  railroad — City  of 
New  York  v.  Railroad  Co.,  77  App.  Div.  (N 
Y.)    379. 

12.  Central  Electric  Co.  v.  Sprague  Elec- 
tric Co.   (C.  C.  A.)   120  Fed.  925. 

13.  Farmers'  Loan  &  Trust  Co.  v.  Central 
R.  &  Banking  Co.,  120  Fed.  1006;  Central 
Trust  Co.   V.   Same,   Id. 

14.  Shadford  v.  Detroit  Y.  &  A.  A.  Ry. 
(Mich.)   89  N.  W.  960. 

1.5.  Berthold  v.  HoUaday-Klotz  Land  & 
Lumber  Co.,   91   Mo.  App.   233. 


16.  Wilson  V.  Aeolian  Co.,  64  App.  Dlv. 
(N.   Y.)    337. 

17.  Rev.  Sts.  1899,  §  1338— Berthold  v. 
Holladay-Klotz  Land  &  Lumber  Co.,  91  Mo. 
App.    233. 

18.  National  Salt  Co.  v.  Ingraham  (C.  C. 
A.)    122   Fed.    40. 

19.  Injunction  to  restrain  street  railway 
company  from  constructing  a  road  on  the 
ground  of  lack  of  consent  of  the  property 
owners — Adee  v.  Nassau  St.  Elect.  R.  Co.,  65 
App.   Div.    (N.  Y.)    529. 

20.  Power  to  hold  stock  of  and  control 
other  corporations — Dittman  v.  Distilling  Co. 
(N.  J.  Eq.)    54   Atl.   570. 


744 


CORPORATIONS. 


14A 


to  a  transfer  of  property  of  the  corporation  on  the  ground  that  it  is  a  violation  of 
tlie  Federal  Anti-Trust  Act  of  1890,  since  the  only  party  entitled  to  maintain  a 
bill  in  equity  for  injunctive  relief  for  violating  its  provisions  is  the  United  States 
attorney  at  the  instance  of  the  attorney  general,^^  and  a  state  court  of  equity  will 
not  take  jurisdiction  of  suit  by  a  stockholder  for  relief  on  the  ground  that  the  pur- 
pose of  a  corporation  was  unlawful  as  being  for  the  creation  of  a  monopoly  if  the 
corporation  is  merely  exercising  powers  conferred  by  its  charter  to  hold  stock  of 
other  corporations,  since  such  question  must  be  raised  in  quo  warranto  proceedings 
by  the  state.^^ 

In  a  proceeding  to  dissolve  a  holding  company  and  to  obtain  relief  against  a 
constituent  company,  a  ground  of  relief  solely  against  the  constituent  company  can- 
not be  set  up  without  making  the  bill  multifarious.-^  Where  a  bill  is  based  on  sup- 
posed illegality  of  management  of  the  company  and  there  is  a  prayer  for  its  dissolu- 
tion and  the  repayment  to  complainants  of  the  amounts  paid  for  their  stock,  an 
amended  bill  seeking  specific  performance  of  a  contract  to  pay  dividends,  based  on 
the  valid  continuous  existence  and  managoment  of  the  corporation  as  a  going  cor- 
poration, is  inconsistent  with  the  relief  originally  sought." 

§  14.  Stock  and  membership.  A.  Membership  in  corporations  in  general. — 
The  relation  of  the  stockholder  is  personal,  analogous  otherwise  than  technically  to 
that  of  a  partner.^^  Corporations  organized  for  gain  have  no  power  of  expulsion 
or  forfeiture,  unless  granted  by  their  charter  or  by  general  municipal  laws.^®  The 
stockholder  is  not  entitled  to  surrender  his  stock  and  withdraw  its  value  prior  to 
winding  up  of  the  corporation,  unless  the  corporation  consent.^^  The  fact  that  a 
citv  becomes  a  member  of  a  mutual  insurance  company  does  not  amount  to  an  ex- 
tension of  a  municipalit}''s  credit  to  the  corporation  within  the  constitutional  pro- 
vision.^^ One  who  holds  a  large  share  of  the  stock  of  a  corporation  has  an  insur- 
able interest  in  the  corporation's  propert}\2» 

Where  the  original  stockholders  have  transferred  all  their  stock  to  a  holding 
company,  they  cannot  deal  with  the  property  of  the  corporation  and  their  acts  as 
stockliolders  are  void.^° 

(§  14)  B.  Capital  stock  and  shares  of  stock.  Nature  of  capital  stock  and 
shares  of  stock.^^ — The  fact  that  the  property  of  a  corporation  is  almost  entirely 
realty  does  not  alter  the  character  of  its  stock  as  personalty.*=^ 

The  situs  of  shares  of  corporate  stock  for  the  purpose  of  determining  their  lia- 
bility to  execution  is  the  state  of  incorporation,  and  they  are  not  subject  to  execu- 
tion in  a  state  where  the  corporation  is  doing  business  unless  such  corporations  are 
made  domestic  for  the  purpose  of  suit.''     The  property  of  a  corporation  is  not  con- 


21.  Metcalf  V.  American  School  Furniture 
Co.,   122   Fed.   115. 

22.  Dittman  v.  DlstlUlng  Co.  of  America 
(N.  J.  Eq.)    54  Atl.   570. 

23.  Amendment  seeking  to  add  a  claim 
that  complainants  as  preferred  stockholders 
of  the  constituent  company  under  the  cer- 
tificate of  incorporation  are  entitled  to  re- 
ceive a  stated  dividend  payable  quarterly 
from  the  net  profits  arising  from  the  busi- 
ness of  the  company,  that  any  profits  ap- 
plicable to  such  dividends  have  been  ac- 
cumulated but  have  not  been  paid  and  pray- 
ing for  payment — Dittman  v.  Distilling  Co. 
of  America    (N.   J.   Eq.)    54   Atl.   570. 

24.  Such  amendment  cannot  be  permitted 
at  the  hearing — Dittman  v.  Distilling  Co.  of 
America   (.N.  J.  Eq.)   54  Atl.  570. 

25.  Barrett  v.   King.   181    Mass.    476. 

26.  Purdy  v.  Bankers'  Life  Ass'n  of  Des 
Moines   (Mo.  APP)    74  S.  W.   486. 


27.  Mayfield  v.  Alton  Ry.,  Gas  &  Electric 
Co..  100  111.  App.  614. 

28.  Const,  art.  1,  par.  19 — French  v.  City 
of  Millville,    67   N.   J.  Law,    349. 

29.  Crawford  v.  Aachen  &  M.  Fire  Ins. 
Co.,  100  111.  App.  454.  (See  generally  article 
"Insurance.") 

30.  Bauernschmidt  v.  Bauernschmidt 
(Md.)  54  Atl.  637;  Baltimore  Trust  &  Guar- 
anty Co.  V.  Same.  Id. 

31.  See  articles  Creditor's  Suit,  Attach- 
ment, Execution,  Garnishment  for  rights  of 
creditors  of  stockholders  as  against  cor- 
porate stock,  the  corporation  not  being  In- 
volved in  contractual  relation. 

32.  Champollion    v.    Corbin,    71    N.    H.    78. 

33.  CafCery  v.  Choctaw  Coal  &  Mln.  Co.. 
95  Mo.  App.  174:  Daniel  v.  Gold  Hill  Min.  Co.. 
28   Wash.   411,    68   Pac.   884. 


§  14B 


ISSUE  OF  STOCK.     WATERED  STOCK. 


745 


veyed  by  a  transfer  of  its  stock  no  matter  in  what  form  the  certificates  are  sold  and 
assigned.^* 

Issue  of  stock,  and  payment  therefor. — A  corporation  may,  by  its  acts,  be  es- 
topped to  deny  that  a  person  is  a  stockholder  though  the  issue  of  the  stock  is  not 
entirely  in  compliance  with  statute.^^  The  fact  of  an  omission  of  a  subscriber's 
name  from  a  certificate  of  incorporation  as  evidencing  an  intention  not  to  accept 
him  as  a  stockholder  is  overcome  by  a  demand  for  payment  after  incorporation.^" 

Holders  of  stock  as  collateral,  who  surrender  the  stock  certificate  on  default  in 
payment  of  the  debt,  are  not  to  be  regarded,  until  the  issue  of  a  new  certificate  in 
their  names,  as  stockholders,  entitled  as  such  to  demand  under  a  statute,  a  state- 
ment of  the  assets  and  liabilities  of  the  corporation.^^ 

Where  creditors  or  stockholders  are  not  injured,  the  corporation  may  fix  its 
own  price  for  the  sale  of  its  stock.^* 

Where  stock  is  exchanged  for  municipal  aid  bonds  which  are  void,  a  contractor 
to  whom  the  bonds  are  conveyed  in  lieu  of  stock  due  him  under  a  construction  con- 
tract is  entitled  to  such  stock,  and  this  right  may  be  asserted  by  his  assignees,  and 
in  an  action  against  the  corporation  by  the  assignees  to  compel  the  issue  of  stock  to 
them,  the  corporation  is  not  entitled  to  have  interest  payments  made  by  the  munici- 
pality on  the  void  bonds  broiight  into  court.  Complainants'  right  to  relief  is  not 
affected  by  any  notice  which  they  may  have  had  of  the  void  character  of  the  bonds, 
there  being  no  bad  faith.^''  The  municipality,  the  original  holders  of  the  bonds, 
and  stockholders  of  the  corporation,  are  not  necessary  parties.*" 

A  corporate  creditor  is  bound  by  an  agreement  to  apply  a  certain  portion  of  a 
new  issue  of  stock  on  his  debt  if  a  third  person  takes  the  remainder  of  such  stock.** 

Where  stock  is  issued  to  a  creditor  to  secure  a  debt,  it  cannot  be  set  off  as 
against  the  debt  though  the  mere  fact  that  the  creditor  in  taking  stock  did  not  re- 
gard it  as  of  value  or  intend  to  take  it  as  stock  does  not  prevent  its  being  set  off.** 

Watered  or  fictitiously  paid-up  stocTc. — As  against  creditors,  pa}Tnent  of  stock 
subscriptions  must  be  in  money  or  its  equivalent.*'  Under  the  statutes  of  certain 
states,  paid-up  corporate  stock  cannot  be  issued  for  less  than  its  par  value.**  Pay- 
ment by  an  uncertified  check  on  a  bank  is  not  a  payment  in  cash.*'     Though  a  stat- 


34.  Albany  Mill  Co.  v.  Huff  Bros.,  24  Ky. 
L,   R.   2037,   72  S.  "W.   820. 

35.  By  vote  of  two  thirds  of  the  members 
It  was  agreed  to  issue  the  additional  share 
to  the  buyer,  who  signed  the  articles  of  in- 
corporation as  a  stockholder  at  request  of 
the  president  and  thereafter  met  with  the 
other  members  as  a  stockholder,  with  full 
knowledge  and  consent  of  the  officers,  though 
nothing  was  paid  and  the  company  did  not 
issue  or  offer  to  deliver  the  shares  sold — 
Gowdy  Gas  Well,  Oil  &  Mineral  Water  Co. 
V.  Pattison   (Ind.  App.)    64  N.  E.  485. 

36.  Woods  Motor  Vehicle  Co.  v.  Brady, 
39   Misc.    (N.    Y.)    79. 

37.  Not  regarded  as  stockholders  of  rec- 
ord under  stock  corporation  law  §  52,  im- 
posing a  penalty  for  failure  to  make  such 
statement — Pray  v.  Todd,  71  App.  Div.  (N. 
T.)    391. 

38.  Ross  V.   Sayler,   104  111.  App.   19. 

39.  40.  Citienzs'  Sav.  &  Loan  Ass'n  v 
Belleville  &  S.  I.  R.  Co.  (C.  C.  A.)  117  Fed. 
109. 

41,    42.     Reld    V.    Detroit    Ideal    Paint    Co. 
(Mich.)    94  N.  W.  3. 
43.     Fraudulent  as  to  the  corporation  and 


stockholders  who  have  paid  up  In  full  to  re- 
ceive the  cliemical  formula  of  purported 
value  in  full  payment  of  stock  shares  trans- 
ferred to  a  third  person — Dean  v.  Baldwin. 
99  111.  App.   582. 

(Note)  Where  there  Is  no  charter,  statu- 
tory, or  constitutional  provision  requiring 
that  stock  shall  be  paid  for  at  its  par  value, 
and  where  no  rights  of  other  stockholders 
are  violated,  and  there  is  no  fraud  as  against 
creditors,  there  is  nothing  whatever  to  ren- 
der it  either  illegal  or  ultra  vires  for  a  cor- 
poration to  issue  its  stock  as  full-paid  upon 
payment  of  less  than  its  par  value.  Such  a 
transaction  Is  perfectly  valid  as  between  the 
parties  If  all  the  stockholders  consent,  and 
the  corporation  cannot  afterwards  repudiate 
the  agreement  and  compel  payment  of  the 
difference  between  the  par  value  of  the  stock 
and  what  It  has  agreed  upon  as  payment  in 
full — Clark  &  Marshall,  Corporations,  Vol. 
II,  p.  1198;  citing  Scovill  v.  Thayer,  105  U.  S. 
143. 

44.  Coler  v.  Tacoma  Ry.  &  Power  Co. 
(N.  J.  Law)   54  Atl.  413. 

45.  Laws  1890,  p.  1082,  c.  565.  §  2 — People 
V.  Board  of  Railroad  Com'rs.  81  App.  Div. 
(N.  Y.)   242. 


746 


CORPORATIONS. 


?J  14B 


ute  provides  that  stock  subscriptions  must  be  paid  in  money  or  labor,  a  note  secured 
by  a  paid-up  insurance  policy  may  be  accepted.**  Actual  payment  of  a  portion  of 
the  capital  stock  as  a  condition  precedent  to  doing  business  may  be  in  property  or 
labor,  where  by  statute  stock  is  authorized  to  be  issued  in  consideration  of  money, 
labor,  or  property  estimated  at  its  true  money  value.*^  There  must  be  a  parity 
between  the  value  of  property  conveyed  in  exchange  for  stock  and  the  value  of  the 
stock.**  A  mining  corporation  has  power  to  purchase  property  for  its  use,  by  the 
issuance  of  shares  equal  in  their  par  valuation  to  the  price  at  which  it  is  agreed 
the  purchase  is  to  be  made  if  not  in  excess  of  the  authorized  capital,**  and  a  con- 
veyance of  mining  propert)'  to  a  mining  corporation  in  exchange  for  its  capital 
stock  is  on  a  valuable  consideration.^"  Where  the  statute  prohibits  the  issue  of 
stock  in  exchange  for  anything  but  money  or  property  purchased  for  the  benefit  of 
the  corporation,  an  issue  of  stock  to  be  used  as  a  bonus  on  a  sale  of  the  corporation's 
bonds  at  par  may  be  enjoined  though  even  with  the  bonus  the  bonds  are  not  worth 
more  than  par.'^^ 

As  between  the  parties,  the  value  placed  by  the  corporation  on  stock  with  Avhich 
it  purchases  property  is  conclusive  though  not  as  against  creditors.**^ 

An  intent  to  defraud  need  not  exist  to  render  the  acceptance  of  merchandise 
in  pa}Tnent  of  stock  subscriptions  at  an  over  estimated  value  fraudulent  as  to  cred- 
itors.^* A  general  allegation  that  certain  defendants  entered  into  conspiracy  with 
the  directors  to  acquire  the  entire  capital  stock  of  a  corporation  for  a  sum  much 
less  than  its  actual  value  is  insuflficient  to  support  an  action  to  set  aside  an  issuance 
of  capital  stock  to  them.*** 

Assessments  upon  stockJiolders  after  payment  in  full. — Statutes  providing  that 
assessments  may  be  made  on  stock  not  to  exceed  the  amount  at  which  the  shares 
were  originally  limited  does  not  prohibit  the  making  of  a  contract  by  the  stockhold- 
ers for  additional  assessments.'*' 

Amount  of  capital  stoclc,  and  increase  or  reduction  thereof. — Where  there  is 
no  statutory  or  charter  provision,  the  corporation  may  deal  as  it  pleases  with  its 
own  stock,^**  but  a  contract  between  a  corporation  and  a  portion  of  its  stockholders 
to  buy  back  stock  at  a  specified  advance  at  the  end  of  a  specified  period  is  void  as 
to  creditors.*^  An  issuance  of  stock  to  pay  for  property  purchased  by  a  corporation 
is  not  a  fictitious  increase.'* 

A  statutory  right  of  a  stockholder  to  purchase  at  par  a  pro  rata  sliare  of  an 
additional  issue  cannot  be  restricted  by  the  other  stockholders.'*  A  right  to  pur- 
chase a  new  issue  of  stock  must  be  exercised  within  a  reasonable  time.®** 


46.  Ky.  St.  S  568 — Clarke  v.  Lexington 
Stove  Works.  24  Ky.  L.  R.  1755,  72  S.  W.  286; 
Clark  V.  Lexington  Stove  Works,  24  Ky.  L. 
R.  2247.  73  S.  W.  788. 

47.  The  20%  required  by  Rev.  St.  1898,  S 
1773,  may  be  so  paid  under  §  1753  as  amend- 
ed by  laws  1899,  c.  193 — La  Crosse  Brown 
Harvester  Co.  v.  Goddard,  114  Wis.  610. 

48.  Code.  1876,  §  1805 — Montgomery  Iron 
Works  V.  Capital  City  Ins.  Co.  (Ala.)  34  So. 
210. 

49.  Code,  c.  53,  §  24 — Bank  v.  Belington 
Coal  &  Coke  Co.,  51  W.  Va.   60. 

50.  Mill's  Ann.  St.  §§  490,  582 — Homestead 
Mln.  Co.  v.  Reynolds,  30  Colo.  330,  70  Pac. 
422. 

51.  Kraft  V.  GrifEon  Co.,  82  App.  Div.  (N. 
Y.)   29. 

53.  Coler  v.  Tacoma  Ry.  &  Power  Co.,  64 
N.  J.  Eq.  117. 


53.  L.  M.  Rumsey  Mfg.  Co.  v.  Kalme  (Mo.) 
73  S.  W.  470. 

54.  Insurance  Press  v.  Montauk  Fire  De- 
tecting "Wire  Co.,  82  N.  Y.  Supp.  104. 

55.  Blue  Mountain  Forest  Ass'n  v.  Bor- 
rowe,  71  N.  H.  69. 

56.  It  may  make  a  contract  to  re-pur- 
chase Its  shares  on  a  certain  contingency — 
Fremont  Carriage  Mfg.  Co.  v.  Thomsen 
(Neb.)   91  N.  W.  376. 

57.  On  winding  up.  the  stockholders  can- 
not assert  such  a  contract — Olmstead  v. 
Vance  &  Jones  Co.,   196  111.  236. 

58.  Not  rendered  void  by  Const.  W^ash. 
art.  12,  §  6 — Coler  v.  Tacoma  Ry.  &  Power  Co.. 
64  N.  J.  Eq.  117. 

59.  A  vote  of  holders  of  two-thirds  of 
the  stock  at  a  regular  meeting,  requiring 
payment  of  a  premium  for  additional  stock 
issued   under  Comp.  Laws,   J   7038,   subd.   4 — 


§  14B 


PREFERRED  STOCK. 


747 


If  stockholders  have  transferred  a  portion  of  their  stock  to  the  corporation  to 
be  used  as  assets,  or  their  stock  has  in  other  ways  been  taken  back  into  the  treasury, 
they  have  no  rights  based  thereon  to  share  in  an  issue  of  additional  stock,  though 
such  stock  has  been  reported  by  the  corporate  officers  as  unissued  stock.  One  stock- 
holder entitled  to  a  proportion  of  additional  stock  issued  cannot  maintain  an  action 
against  another  stockholder  on  the  ground  that  he  has  received  more  than  his  share, 
without  showing  a  demand  for  the  proportion  due  plaintiff,  especially  where  it  ap- 
pears that  more  than  sufficient  remained  to  satisfy  his  claim  after  the  allotment  to 
defendant,  and  it  must  be  shown  that  the  right  to  the  excess  had  not  been  purchased 
from  other  shareholders  or  otherwise  obtained.^^ 

Where  new  stock  to  the  amount  of  accumulated  surplus  earnings  is  distributed 
among  the  original  stockholders  if  certain  of  the  shares  are  held  subject  to  a  life 
estate,  the  new  shares  are  to  be  regarded  as  capital  and  not  income,  as  between  the 
life  tenant  and  remaindermen."^ 

Preferred  or  guarantied  stoch;  interest-hearing  stocl';  special  stoch. — A  subse- 
quent statute  authorizing  the  retirement  of  preferred  stock  on  certain  conditions  is 
a  repeal  of  a  prior  statute  allowing  capital  stock  to  be  reduced  by  purchase  without 
limitation  as  to  the  financial  condition  of  the  company."*'' 

Wliere  preferred  stock  has  been  issued  in  violation  of  the  charter  powers 
though  with  the  consent  of  all  persons  in  interest,  its  redemption  cannot  be  com- 
pelled by  mandamus."*  One  who  accepts  preferred  stock  cannot  contend  that  the 
extent  of  its  issue  was  based  on  an  overvaluation  of  the  corporate  assets  or  of  the 
paid  up  capital  stock,  but  is  limited  to  a  showing  of  a  shrinkage  in  the  assets 
after  its  issuance,"^ 

A  plan  for  the  retirement  of  preferred  stock  in  the  absence  of  fraud  or  bad 
faith  is  not  a  subject  of  judicial  control,  and  the  court  cannot  say  that  a  less 
expensive  plan  might  be  successfully  adopted."**  An  act  allowing  preferred  stock 
to  be  retired  from  the  proceeds  of  a  bond  issue  authorized  at  a  regularly  called 
meeting  with  the  consent  of  two-thirds  of  each  class  of  stockholders  must  be 
strictly  followed."^  In  proceedings  under  such  act,  the  directors  must  state  how 
many  shares  they  propose  to  retire  though  failure  to  acquire  such  number  will 
not  render  the  scheme  ineffectual."*  Where  holders  of  preferred  stock  are  given 
an  option  to  accept  bonds  in  lieu  thereof,  they  are  not  deprived  of  any  vested  right 
by  the  purchase  and  retirement  of  other  preferred  shares,  but  the  offer  to  pur- 
chase preferred  stock  for  retirement  must  be  made  to  all  stockholders."®  The  power 
to  issue  bonds  for  such  purpose  is  expressly  given  by  statute  in  certain  states.^" 
'Where  a  corporation  has  paid  four  quarterly  dividends  amounting  to  more  than 
the  minimum  fixed  in  the  statute,  it  may  take  advantage  of  a  statute  allowing 
a  corporation  which  has  issued  preferred  stock  entitling  the  holder  to  dividends 
in  excess  of  the  specified  amount  per  annum  to  retire  such  stock  by  the  issue  of 


Hammond  v.  Edison  Illuminating  Co.   (Mich.) 
90  N.  W.   1040. 

60,  61.  Crosby  v.  Stratton  (Colo.  App.)  68 
Pac.   130. 

62.  Chester  v.  Buffalo  Car  Mfg.  Co.,  70 
App.  Div.   (N.  T.)   443. 

63.  N.  J.  Corp.  Acts  March  28,  1902  and 
1896 — Hodge  v.  United  States  Steel  Corp.,  64 
N.  J.  Eq.   90. 

64.  State  V.  Ferracute  Mach.  Co.  (N.  J. 
Sup.)   52  Atl.  231. 

esi.  As  against  a  scheme  to  retire  the  pre- 
ferred stock  under  a  statute  giving  such 
power   to  a   corporation   provided   its   assets 


are  of  sufflcient  value  (N.  J.  Corp.  Act 
March  28,  1902) — Hodge  v.  United  States  Steel 
Corp.,  64  N.  J.  Eq.  90. 

66.  Berger  v.  United  States  Steel  Corp., 
63  N.  J.  Eq.  809. 

67.  Act  March  28,  1902  supplementing 
Corp.  Act  1896,  §5  27-29 — Berger  v.  United 
States  Steel  Corp.,  63  N.  J.  Eq.  809. 

68.  69.  Berger  v.  United  States  Steel  Corp., 
63  N.   J.  Eq.   809. 

70.  N.  J.  Corp.  Act  1896,  §§  27,  29 — Berger 
v.  United  States  Steel  Corp.,  63  N.  J.  E3q. 
809. 


748 


CORPORATIONS. 


§  14B 


bonds  if  it  shall  have  paid  dividends  continuously  at  such  rate  for  at  least  one 
year  previous.''^  One  who  may  seek  an  injunction  against  a  retirement  of  pre- 
ferred stock  by  a  bond  issue  must  be  the  owner  of  shares  standing  in  his  name 
on  the  corporate  books  at  the  time  of  filing  the  bill."  His  motive  in  asking  an 
injunction  is  not  material  if  the  relief  is  alleged  to  be  based  on  injury  to  his 
property  rights.'^' 

A  purchaser  of  preferred  stock  is  bound  by  his  transferror's  assent  to  a  plan 
for  the  retirement  of  a  portion  of  such  stock  issue.'^* 

A  corporation  may  substitute  noncumulative  for  cumulative  dividend  pre- 
ferred stock  if  the  amendment  by  which  it  is  effected  is  expressly  provided  to 
operate  only  on  those  preferred  stockholders  who  assent.  An  amendment  to  the 
by-laws  and  certificate  of  incorporation  which  provides  that,  as  to  preferred  stock- 
holders who  consent  to  the  arrangement,  dividends  shall  thereafter  be  noncumu- 
lative, and  which  provides  that  funding  certificates  to  the  amount  of  the  dividends 
in  arrears  shall  be  issued  to  those  stockholders  who  consent  to  the  arrangement, 
such  certificates  to  bear  interest  payable  out  of  the  net  profits  in  priority  to  any 
dividends  on  the  capital  stock,  is  not  unlawful  as  to  the  nonassenting  stock- 
holders, as  providing  for  an  unequal  distribution  of  the  surplus  earnings  among 
the  preferred  stockholders,  since  the  directors  will  be  bound  when  they  set  aside 
a  sum  equal  to  the  interest  due  on  the  certificate  to  set  aside  a  proportionate  sum 
for  the  nonassenting  stockholders.  Common  stockholders  cannot  object  since 
they  are  benefited  by  the  scheme  by  the  fact  that  it  accelerates  their  chances  of 
participation  in  dividends.  The  substitution  cannot  be  enjoined  by  a  nonassent- 
ing preferred  stockholder,  since,  if  after  the  confirmation  of  the  agreement  an 
attempt  is  made  to  pay  dividends  in  violation  of  his  right,  he  can  by  an  appro- 
priate proceeding  assert  his  legal  right  to  a  proportionate  share.^* 

Issue  and  cancellation  of  certificates  of  stock;  lost  certificates. — It  is  suffi- 
cient to  establish  the  loss  on  mandamus  for  the  issuance  of  a  duplicate  stock 
certificate  after  ten  years.  After  the  lapse  of  such  time  claim  by  third  persons 
cannot  be  made  to  lost  certificates.''®  To  support  a  statutory  proceeding  to  com- 
pel the  issue  of  a  new  certificate  of  stock,  there  must  be  a  refusal  on  the  part  of 
the  corporation  shown.  On  return  of  the  order  to  show  cause  why  a  certificate 
should  not  be  issued,  proof  should  be  taken  by  the  court.  On  granting  an  order 
to  issue  a  new  certificate,  either  the  order  to  show  cause  or  a  notice  should  be 
published  after  the  order  is  granted  but  before  the  certificate  is  delivered.'^ 
Where  a  stockholder  seeks  the  cancellation  of  stock  which  was  alleged  to  have 
been  fraudulently  issued,  he  must  allege  the  facts  showing  fraud.''^  An  action 
cannot  be  brought  in  equity  after  the  expiration  of  ten  years  from  the  time  of 


71.  United  States  Steel  Corporation  by 
the  payment  of  quarterly  dividends  at  the 
rate  of  1%  per  cent,  for  four  successive 
quarters  is  entitled  to  take  advantage  of 
New  Jersey  Corporation  Act  March  28,  1902 — 
Hodge  V.  United  States  Steel  Corp.  (N.  J. 
Sup.)  54  Atl.  1.  (Court  below  held  that  five 
such  dividends  must  have  been  paid — 53  Atl. 
601). 

72.  Hodge  V.  United  States  Steel  Corp., 
64  N.  J.  Eq.   90. 

73.  Hodge  v.  United  States  Steel  Corp.,  64 
N.  J.  Eq.  111. 

74.  Tlie  transferee  cannot  from  his  own- 
ership have  a  preliminary  injunction — Hodge 
V.  United  States  Steel  Corp.,  64  N.   J.  Eq.   90. 

T.l.  Wilcox  V.  Trenton  Potteries  Co.  (N. 
J.  Ch.)   53  Atl.  474. 


76.  The  particulars  of  the  loss  need  not 
be  shown — State  v.  Southern  Mineral  &  Land 
Imp.  Co..  108  1.3..  24. 

77.  Laws  1892,  c.  688.  §§  50,  51 — In  re 
Coats,    75   App.   Div.    (N.   Y.)    469. 

78.  On  a  bill  for  the  cancellation  of  stock 
seeking  also  the  recovery  of  dividends  paid 
thereon,  and  an  injunction  against  the  vot- 
ing thereof  on  the  ground  that  the  stock 
was  issued  in  consideration  of  fictitious 
patent  rights,  it  must  be  alleged  that  the 
right  to  operate  under  the  patent  was  known 
to  defendants  to  be  of  no  value  when  the 
stock  was  issued,  and  tiiat  the  corporation 
did  not  operate  under  the  patents  or  exer- 
cise the  exclusive  rights  which  it  acquired — 
Kimbell  v.  Chicago  Hydraulic  Press  Brick 
Co.   (C.  C.  A)  119  Fed.  102. 


§  14C 


SUBSCRIPTIONS  TO  STOCK. 


74<) 


issue,  there  being  no  concealment  of  the  circumstances  attending  the  transaction 
v/hich  fully  appeared  of  record  on  the  minutes  of  the  corporation/^  nor  after  six 
years,^"  nor  after  three  years  where  the  stock  has  been  transferred  and  the  real 
owners  are  not  made  parties  imtil  five  years. *^ 

Rights  and  liabilities  arising  out  of  the  issue  of  fictitious  certificates  of  stoch. 
— One  who  takes  stock  of  a  corporation  issued  for  the  purpose  of  enabling  certain 
directors  to  secure  a  majority  of  the  capital  stock  and  control  the  corporation 
acquires  no  rights,  he  having  knowledge.  On  determination  of  the  invalidity  of 
such  stock,  a  court  of  equity  should  require  the  issue  to  be  returned  and  can- 
celed, and  the  consideration  paid  restored  to  the  purchaser.*^  Where  it  is  sought 
to  set  aside  such  a  stock  issue,  the  fact  that  evidence  is  received  concerning  an 
alleged  taking  of  a  patent  by  one  of  the  directors  in  his  own  name  does  not 
amount  to  a  voluntary  submission  of  an  issue  with  regard  thereto,  supporting  a 
decree  requiring  the  directors  to  assign  the  patent  to  the  corporation,  the  issue 
not  being  raised  by  the  pleadings  or  such  relief  being  sought.*^  One  who  by  his 
false  representations  has  secured  an  overissue  of  stock  cannot  assert  an  estoppel 
on  the  part  of  another  stockholder  who  in  reliance  on  such  representations  has 
voted  for  the  issue.®* 

(§  14)  C.  Subscriptions  to  capital  stock,  and  other  agreements  to  talce  stoclc. 
Nature  and  formation  of  contracts  of  subscription. — Stock  subscriptions  may  be  by 
parol. ^^  Recognition  by  the  corporation  of  the  subscriber's  rights  is  not  essential 
where  there  is  an  agreement  before  incorporation,  to  take  stock.®®  As  between  the 
corporation  and  stockholders,  a  formal  contract  of  subscription  is  not  necessary  but 
a  contract  may  be  implied  by  the  acceptance  of  stock  issued  to  a  person.®^  If 
there  is  an  intention  to  subscribe,  a  subscription  is  sufficiently  indicated  by  a 
signature  to  the  articles  of  association  to  which  is  affixed  the  words  "250  shares."®® 
Where  a  subscriber  takes  newly  issued  stock,  his  liability  does  not  depend  on  his 
knowledge  of  the  filing  of  the  provisions  for  the  increase  of  stock.®^ 

Subscription  rights  in  a  proposed  corporation  may  be  sold,  title  passing  at  the 
completion  of  the  sale  and  not  by  operation  of  law.®" 

Where  subscriptions  and  offers  to  subscribe  to  stock  are  not  made  in  con- 
templation of  a  grant  of  a  charter  or  in  contemplation  of  incorporation  under  a 
general  law,  but  are  based  on  a  theory  that  there  is  in  existence  a  created  sub- 
sisting body  corporate  capable  of  entering  into  contract  with  subscribers  to  its 
stock,  such  contracts  do  not  become  binding  when  the  corporation  actually  comes 
into  legal  existence.*^ 

Withdrawal^  release,  and  discharge  of  subscribers. — The  validity  and  binding 
effect  of  a  stock  subscription  is  not  affected  by  failure  of  the  subscriber  to  pay  the 


79.  KlmbeU  v.  Chicago  HydrauUc  Press 
Brick  Co.   (C.  C.  A.)   119  Fed.  102. 

80.  Action  by  the  corporation  or  stock- 
holders— Calivada  Colonization  Co.  v.  Hays, 
119  Fed.   202. 

81.  Commonwealth  v.  Reading  Traction 
Co.,  204  Pa.  151. 

83.  Issuance  by  two  of  the  directors  au- 
thorized at  a  board  meeting  at  which  they 
were  a  majority — Luther  v.  C.  J.  Luther  Co. 
(Wis.)    94  N.  W.  69. 

83.  Luther  v.  C.  J.  Luther  Co.  (Wis.)  94 
N.  W.   69. 

84.  Hasken  v.   Read   (Neb.)    93  N.  W.   997. 
S."?.     Somerset  Nat.   Banking  Co.'s  Receiver 

V.   Adams,    24   Ky.   L.   R.   2083.   72   S.   W.   1125; 


Manchester    St.    Ry.    v.    Williams,    71    N.    H. 
312. 

86.  Manchester  St.  Ry.  v.  Williams,  71  N. 
H.  312. 

87.  Parkhurst  v.  Mexican  S.  E.  R.  Co.,  102 
111.  App.  507. 

88.  Dupee  v.  Chicago  Horse  Shoe  Co.  (C. 
C.  A.)   117  Fed.  40. 

89.  Reid  v.  Detroit  Ideal  Paint  Co.  (Mich.) 
94  N.  W.  3. 

90.  Manchester  St.  Ry.  v.  Williams,  71  N. 
H.  312. 

91.  Subscriptions  to  the  capital  stock  of 
a  corporation  before  it  has  paid  the 
bonus  tax  required  by  Poe's  Supp.,  Code  Pub. 
Gen.  Laws,  art.  81,  §  88 — Cleaveland  v.  Mul- 
lin.   96  Md.   598. 


750 


CORPORATIONS. 


§  14C 


whole  or  part  thereof,  unless  payment  is  expressly  required  by  the  charter.®' 
After  the  corporation  has  become  insolvent,  there  cannot  be  a  rescission  of  a  sub- 
scription to  its  stock.®^  A  stock  subscription  cannot  be  canceled  by  mere  direc- 
tion on  the  part  of  the  corporation  to  its  agent  to  return  the  stock,  and  a  sub- 
sequent indorsement  of  the  certificate  as  canceled  at  a  meeting  of  the  directors  of 
which  the  subscriber  had  no  notice,  and  such  action  constitutes  a  conversion  for 
which  the  measure  of  damages  is  the  difference  between  the  par  and  market 
value  less  the  amount  due  thereon.®* 

Where  the  purposes  of  the  organization  are  materially  changed  without  the 
knowledge  of  the  subscribers  or  without  their  ratification  or  consent,  the  sub- 
scriptions are  not  binding.®' 

Subscription  of  full  or  specified  amount  of  the  capital  stocl\ — If  a  certain 
amount  of  capital  stock  is  to  be  subscribed  before  a  contract  of  subscription  shall 
become  binding,  valid  and  enforceable  subscriptions  are  intended.  It  is  not  suffi- 
cient that  persons  known  to  be  insolvent  be  accepted  as  subscribers.®®  Where 
after  a  small  portion  of  the  stock  originally  contemplated  is  subscribed  for,  the 
number  of  shares  is  very  largely  increased  and  the  par  value  largely  reduced,  the 
charter  being  subsequently  changed  in  accordance,  the  additional  issue  '4\'ill  be 
regarded  as  original  and  not  increased  stock,  and  a  subscriber  for  a  number  of 
the  increased  issue  is  not  liable  to  creditors  imless  the  entire  amount  is  subscribed 
for.®'  An  assessment  may  be  made  on  the  shares  issued  though  less  than  the 
nominal  capital,  if  in  excess  of  the  stipulated  first  issue.®* 

Though  pa3'ment  of  a  per  cent  of  the  capital  stock  may  be  a  condition  prece- 
dent to  the  transaction  of  business,  it  is  not  to  the  organization  of  the  corporation 
and  the  collection  of  subscriptions  to  the  capital  stock,  the  charter  having  been 
granted.®® 

Subscriptions  upon  conditions  precedent. — The  rights  of  subscribers  become 
fixed  by  the  completion  of  subscriptions  and  the  grant  of  a  charter.^ 

If  a  bonus  tax  is  by  statute  made  a  condition  precedent  to  the  exercise  of 
corporate  powers,  an  offer  to  subscribe  to  stock  though  accepted  is  not  binding  on 
the  corporation  where  the  tax  has  not  been  paid  and  a  subsequent  payment  of  the 
tax  does  not  render  the  subscription  binding.^ 

Subscribers  to  the  stock  of  a  corporation  who  enter  into  their  contracts  with 
the  understanding  that  the  president  is  to  take  a  certain  number  of  shares  are 


92.  Nlcholson-Watson  Shoe  &  Clothing 
Co.  V.  Urquhart  (Tex.  Civ.  App.)  75  S.  W. 
46. 

93.  Deppen  v.  German-American  Title 
Co..  24  Ky.  L.  R.  1110,  70  S.  W.  868. 

»4.  Rev.  St.  1895.  art.  668.  requires  that 
thirty  days'  notice  in  writing  must  be  served 
on  the  stockholder  before  stock  can  be  for- 
feited for  neglect  to  pay  an  installment — 
Nicholson-Watson  Shoe  &  Clothing  Co.  v. 
Urquhart   (Tex.  Civ.  App.)   75  S.  W.  45. 

9.5.  West  End  Real  Estate  Co.  v.  Nash, 
51  W.  Va.  341.  Prospectus  stating  object  to 
acquire  patents  and  rights  to  certain  speci- 
fied metal  turning  machines,  certificate  stat- 
ing object  to  be  to  "make,  contract  for  the 
manufacture  or  purchase  of,  buy,  use,  sell, 
lease,  rent,  or  mortgage,  of  mechanical  or 
other  apparatus,  machinery  and  implements 
for  metal  turning  machines,  and  in  general 
to  do  a  manufacturing  business" — Stern  v. 
McKee,  70  App.  Div.   (N.  Y.)   142. 

96.  Chicago  Bldg.  &  Mfg.  Co.  v.  Browning, 
19  Pa.   Super.  Ct.   355. 


97.  Original  provision  for  200  $5  shares 
and  after  issue  of  11  shares  an  increase  to 
250,000  of  $1  each — Gettysburg  Nat.  Bank  v. 
Brown,  95  Md.  367.  (See  note  to  this  case 
in  93  Am.  St.  Rep.  339;  for  an  exhaustive 
treatment  of  the  liability  to  corporations  of 
subscribers  to  their  capital  stock.) 

OS.  Nominal  capital  50,000  shares,  first  Is- 
sue 25,000  shares  with  power  to  increase 
capital,  and  actual  issue  of  37,000  shares — 
Anglo-American  Land,  Mortg.  &  Agency  Co. 
v.  Dyer,  181  Mass.  593. 

99.  Corporation  chartered  by  the  supe- 
rior court — McCandless  v.  Inland  Acid  Co., 
115  Ga.  968. 

1.  Stock  need  not  have  been  issued  In 
order  to  render  the  subscription  rights  prop- 
erty rights,  assignable  and  carrying  with 
them  the  right  to  participate  in  the  man- 
agement of  the  corporation — Manchester  St. 
Ry.  V.  Williams,  71  N.  H.  312. 

2.  Acts  Assem.  1898,  p.  1173,  c.  504,  §  11— 
Poe's  Supp.  Code  Pub.  Gen.  Laws.  art.  81.  ! 
88f — Cleaveland  v.  Mullin,  96  Md.  598. 


§  14C 


SUBSCRIPTIONS  ON  CONDITION.     FRAUD. 


7S1 


not  bound  in  case  he  fails  to  do  so  and  has  never  had  an  intention  to  do  so  but 
has  the  stock  issued  to  another.^  Though  subscribers  are  to  select  a  committee- 
man to  investigate  the  workings  of  similar  corporations,  and  are  not  to  be  bound 
until  his  favorable  report,  they  do  not  become  jointly  liable.  A  time  limited  for 
the  pa}Tnent  of  subscriptions  does  not  begin  to  run  until  the  final  report  of  the 
committeeman.  The  measure  of  damages  for  failure  to  appoint  such  committee- 
man to  a  plaintiff  who  was  to  erect  certain  buildings  and  machinery  for  the  in- 
tended corporation,  is  the  value  of  the  opportunity  to  present  its  arguments.* 

Fraud  in  procuring  subscriptions. — Where  stock  is  sold  by  means  of  false 
representations,  the  subscription  may  be  rescinded  and  the  amount  paid  recov- 
ered,^ though  the  stock  was  worth  the  amount  paid."  The  representations  need 
not  be  made  with  intent  to  deceive  but  are  sufficient  if  materially  false  and  right- 
fully relied  on  by  the  subscriber.  They  need  not  have  been  relied  on  absolutely 
but  they  must  have  been  of  influence.^  ^^l■lere  there  has  been  fraud  on  the  part 
of  promoters,  confirmation  of  stock  subscriptions  must  be  by  deliberate  act  with 
full  knowledge  of  the  fraud  and  of  the  rights  intended  to  be  waived.* 

A  purchaser  of  stock  who  has  relied  on  an  official  statutory  statement  of  the 
secretary  may  bring  an  action  for  deceit  if  damaged  by  false  statements  therein, 
though  the  statement  which  had  been  filed  was  not  yet  published  and  distributed.® 

A  proceeding  may  be  brought  in  equity  against  the  directors  of  a  corporation 
for  damages  for  misrepresentations  leading  to  the  purchase  of  stock,  where  it 
appears  that  an  action  at  law  would  necessitate  a  delay  by  reason  whereof  the 
amount  and  time  when  plaintiff,  would  realize  anything  is  problematical  and 
uncertain.  In  such  an  action  the  receivers  of  the  corporation  need  not  be  joined 
as  defendants,  and  the  cause  of  action  does  not  abate  on  the  death  of  the  pur- 
chaser of  the  stock. ^^  Directors  guilty  of  false  representations  in  the  sale  of  stock 
are  not  necessary  parties  to  an  action  against  the  corporation  to  secure  the  rescis- 
sion of  the  stock  subscriptions  and  recover  the  money  paid.^^ 


3.  Byers  Bros.  v.  Maxwell  (Tex.  Civ.  App.) 
73  S.  W.   437. 

4.  Certain  land  was  to  be  furnished  with- 
in ten  days  from  the  date  of  the  subscription 
contract — Chicago  Bldg.  &  Mfg.  Co.  v. 
Browning,   19  Pa.  Super.  jCt.   355. 

5.  Evidence  held  sufficient  to  show  false 
representations  inducing  the  sale  of  min- 
ing stock — Morrison  v.  Snow  (Utah)  72  Pac. 
924.  Evidence  held  sufficient  to  show  fraud 
authorizing  the  avoidance  of  a  contract  to 
subscribe  for  capital  stock — Queen  City 
Printing  &  Paper  Co.  v.  McAden,  131  N.  C. 
178.  Evidence  held  sufficient  to  show  that  a 
purchase  of  corporate  stock  was  induced  by 
fraud,  there  being  a  representation  that  it 
was  worth  above  par  when  in  fact  the  cor- 
poration was  insolvent — Deppen  v.  German- 
American  Title  Co.,  24  Ky.  L.  R.  1110,  70  S. 
W.  868.  Evidence  held  to  show  misrepre- 
sentations of  facts  as  to  the  stage  of  com- 
pletion of  negotiations  for  the  consolidation 
of  corporations  inducing  plaintiff  to  sub- 
scribe to  stock  of  the  new  corporation  to  be 
formed — Mack  v.  Latta.  83  App.  Div.  (N.  Y.) 
242.  Where  a  conveyance  of  property  is  se- 
cured in  consideration  of  the  issue  of  stock 
falsely  represented  to  be  full  paid  and  non- 
assessable, the  contract  may  be  rescinded — 
Coolidge  v.  Rhodes,  199  111.  24.  Where  pro- 
moters have  an  option  on  land  which  the 
corporation   Is   being  organized   to   purchase 


a  stock  subscriber  Is  not  bound  If  such  fact 
is  concealed  from  him — West  End  Real  Es- 
tate Co.  V.  Nash,  51  W.  Va.  341. 

6.     Mack   V.    Latta.    83    App.    Div.    (N.    T.) 
242. 

7. 
73  S. 

8. 


Maxwell  (Tex.  Civ.  App.) 
V.  Nash,  51 


Byers  Bros. 
W.   437. 

West  End  Real  Estate  Co. 
W.  Va.  341. 

9.  Statement  to  the  state  auditor  of  the 
assets  and  liabilities  of  a  fire  insurance  com- 
pany— Warfleld   v.   Clark,    118    Iowa,    69. 

10.  Action  In  equity  may  be  brought 
against  the  directors  of  a  savings  and  loan 
association  whose  articles  of  incorporation 
provide  that  funds  should  be  invested  In 
first  mortgages,  vrho  Invest  in  second  mort- 
gages, and  by  false  statements  secure  plain- 
tiff's testatrix  to  become  a  purchaser  of  pre- 
paid stock — Squiers  v.  Thompson,  73  App. 
Div.   (N.  T.)   552. 

11.  They  are  Improper  parties  if  it  Is  not 
sought  to  recover  against  them,  where  it  Is 
not  charged  that  they  received  any  indi- 
vidual benefit,  and  it  is  not  alleged  that  th» 
stock  was  worthless  or  of  less  value  than 
it  would  have  been,  had  the  representations 
been  true,  and  where  they  are  joined  with 
the  corporation  a  demurrer  by  them  as  In- 
dividual  defendants  should  be  sustained — 
Mack  V.  Latta,  83  App.  Div.   (N.  T.)    242- 


752 


CORPORATIONS. 


§  14D 


An  action  for  damages  should  not  also  seek  relief  in  favor  of  the  corpora- 
tion." 

Where  notes  nre  sued  on  which  were  given  in  payment  of  a  stock  issue,  made 
for  the  purpose  of  enabling  a  corporation  to  pay  its  debts,  and  the  defense  is  on 
tlic  ground  that  the  assets  of  the  corporation  were  misrepresented,  the  question  of 
whether  the  corporation's  affairs  were  involved  should  not  be  submitted  to  the 
jury  if  it  is  conceded.^' 

Payments  on  subscriptions. — Liability  on  a  subscription  to  stock  is  not  affect- 
ed by  the  market  value  of  the  stock.^* 

A  record  kept  by  a  corporation  showing  the  date  of  delivery  of  bonds  in  pay- 
ment of  stock  is  the  best  evidence  as  to  the  date  when  stock  subscriptions  were 
naid.^^     Where  the  records  are  destroyed,  other  evidence  is  admissible.^® 

If  in  pajTtient  of  a  stock  subscription,  the  subscriber  turns  over  securities  to 
the  corporate  agent,  and  the  agent  by  mismanagement  of  such  securities  allows 
them  to  be  lost,  the  stockholder  will  be  entitled  to  credit.^^ 

Wliere  notes  secured  by  mortgage  are  given  in  payment  of  subscriptions  to 
capital  stock,  defenses  justifying  a  rescission  of  the  subscription  contract  may  be 
urged  as  against  a  proceeding  to  enforce  the  notes  and  mortgage,  though  the  cor- 
poration has  assigned  for  benefits  of  creditors,  if  the  purchaser  is  not  shown  to  have 
had  knowledge  of  the  fraud  inducing  a  purchase  before  the  time  of  the  assignment.^* 
An  answer  alleging  that  the  consideration  of  a  note  was  corporate  stock  of  no  value 
which  defendant  had  by  fraud  been  induced  to  buy  may  be  regarded  as  a  plea  of 
total  failure  of  consideration.^^ 

(§  14)  D.  Calls  or  assessments  on  unpaid  subscriptions . — The  necessity  or 
advisability  of  a  call  on  stockholders  for  the  amount  of  their  subscription  lies  entire- 
ly in  the  control  of  the  directors.-"  The  necessity  of  an  assessment  is  not  a  subject 
of  an  inquiry  in  an  action  thereon  where  the  power  of  assessment  as  to  the 
unpaid  portions  of  shares  is  vested  in  the  directors.-^  If  the  power  to  make  calls 
is  vested  in  the  directors  under  the  terms  of  the  subscription,  the  directors  may 
be  divested  of  their  discretion  by  the  legislature  if  the  period  of  time  within 
which  payment  is  to  be  made  is  not  shortened. ^^ 

117(0  liable. — Stock  bearing  on  its  face  a  provision  that  the  holder  shall 
be  liable  to  assessment  for  expenditures  is  liable  though  in  the  hands  of  a  mem- 
ber taking  the  shares  as  a  gift.^'  Where  it  appears  from  the.  stock  certificate- 
that  it  is  subject  to  future  calls,  and  after  becoming  a  stockholder  a  transferee 


12.  In  an  action  by  subscribers  to  stock 
against  a  corporation  and  its  promoters, 
causes  of  action  are  improperly  joined  where 
It  is  sought  to  recover  damages  from  false 
representations;  that  the  corporation  have 
judgment  for  money  which  the  promoters 
subscribed,  but  did  not  pay  in  for  their  stock; 
and  that  there  be  an  injunction  against  the 
sale  of  plaintiff's  stock  for  the  payment  of 
an  assessment — Pietsch  v.  Krause  (Wis.)  93 
N.  W.  9. 

13.  Byers  Bros.  v.  Maxwell  (Tex.  Civ. 
App.)   73  S.  W.  437. 

14.  Measure,  as  between  the  subscriber 
and  the  corporation,  is  the  amount  of  the 
subscription  of  the  stock  at  its  par  value 
less  the  amount  paid  thereon — Dean  v.  Bald- 
win,  99   in.  App.   582. 

15.  Louisville  &  N.  R.  Co.  v.  Hart  County 
(Ky.)  75  S.  W.  288. 

10.  If  the  corporate  books  have  been  de- 
stroyed,    parol     evidence     is     admissible     to 


show  circumstances  attending  a  surrender  of 
stock  as  bearing  on  the  question  of  whether 
certain  notes  in  issue  were  given  in  payment 
for  stock  or  as  part  of  a  collateral  transac- 
tion— Thistlethwaite  v.  Pierce,  30  Ind.  App. 
642. 

17.  A  note  secured  by  a  paid  up  policy, 
was  turned  over  and  lost  in  the  hands  of  an 
irresponsible  person — Clarke  v.  Lexington 
Stove  "Works,  24  Ky.  L.  R.  1755.  72  S.  W.  286; 
Clark  V.  Lexington  Stove  Works,  24  Ky.  L.  R. 
2247,  73  S.  W.  788. 

18.  Deppen  v.  German-American  Title 
Co.,   24  Ky.  L.  R.  1110.   70  S.  W.   868. 

19.  Taft  V.  Myerscough,  197  111.  600. 

20.  Fitzgerald's  Estate  v.  Union  Sav. 
Bank  (Neb.)    90  N.  W.  994. 

21.  Anglo-American  Land,  Mortg.  & 
Agency  Co.  v.  Dyer,  181  Mass.  593. 

22.  West  V.  Topeka  Sav.  Bank  (Kan.)  72 
Pac.  252. 

23.  Blue  Mountain  Forest  Ass'n  v.  Bor- 
rowe,   71  N.  H.  69. 


§  14D 


ASSESSMENTS   ON   STOCK. 


753 


pays  several  calls,  there  is  an  implied  promise  on  his  part  to  pay  future  calls.^* 
Under  the  English  statute,  a  subscriber's  authorization  of  the  signature  of  his 
name  on  the  memorandum  of  the  association  may  render  him  liable  for  calls  or 
assessments  by  the  directors  on  the  unpaid  portion  of  his  shares. -^ 

Validity. — Statutory  provisions  must  be  strictly  followed  in  order  to  render 
an  assessment  valid.=^«  A  stock  assessment  may  be  good,  though  the  directors  of 
a  mining  corporation  have  not  filed  their  oath  as  provided  by  statute,  where 
they  have  taken  and  subscribed  to  it."  Stock  assessments  cannot  be  made  at  a 
meeting  of  the  directors,  at  which  only  a  portion  were  present  and  the  remainder 
had  not  been  notified.^* 

Estoppel  to  object. — A  stockholder  who  by  reason  of  his  official  position  ig 
charged  with  the  duty  to  see  that  stock  assessments  are  properly  made  and  col- 
lected cannot  object  to  the  irregularity  of  an  assessment  after  his  stock  is  sold 
thereunder.29  Payment  of  increased  assessments  without  objection,  and  the  ac- 
ceptance of  a  stock  certificate  in  consideration  thereof  may  operate  as  an  estop- 
pel to  assert  that  such  assessments  were  illegal.^" 

Forfeiture. — Stock  may  be  forfeited  for  nonpayment  of  assessments,  though 
there  is  no  by-law  making  such  provision,  and  though  the  resolution  declaring 
forfeiture  is  general  in  its  terms  and  applies  to  all  defaulted  stock.  Where  the 
statute  prescribes  the  method  in  which  stock  shall  be  forfeited,  such  method  must 
be  pursued  with  some  strictness,  but  in  the  absence  of  such  provision  as  to  details, 
it  is  only  required  that  the  method  adopted  shall  be  reasonable  and  just.^^ 

Defenses. — An  agreement  to  pay  an  assessment  at  a  pro  rata  share  of  the 
existing  indebtedness  is  not  a  bar  to  the  collection  of  further  assessments  where 
the  money  paid  thereon  is  returned  to  the  subscriber  by  the  directors  on  being 
informed  that  the  compromise  is  ultra  vires,  nor  is  a  retiring  allowance  by  the 
directors.'^     The  stockholder's  answer  may  assert  that  the  call  is  unnecessary.^' 

Though  corporations  are  prohibited  from  issuing  stock  for  less  than  its  par 
value,  the  stockholder  is  not  liable  for  more  than  the  price  he  agreed  to  pay,  if 
stock  is  issued  to  him  as  fully  paid  at  an  agreed  price  less  than  par.^* 

Limitations^^  begin  to  run  from  the  time  the  calls  are  due  and  payable.^"  If 
the  law  fixes  the  time  at  which  the  subscription  was  to  become  due,  limitations 
berrjn  to  run  after  default  at  such  times. "'^  Limitations  as  to  the  right  to  make 
.^Ls  on  unpaid  subscriptions  begin  at  the  time  of  suspension  of  business  of  the 


24.     Sigua    Iron    Co.    v.    Brown,    171    N.    Y. 

188. 
•  25.  19  &  20  Vict.  c.  47,  §  7,  provides  that 
tnemoiandum  shall  bind  the  member  of  the 
company  to  the  same  extent  as  it  would  if 
each  member  had  signed  his  name  thereto, 
and  that  all  money  payable  by  any  member 
under  the  regulations  of  the  company  should 
be  deemed  to  be  a  debt  due  from  him  to  the 
company — Anglo-American  Land,  Mortg.  & 
Agency  Co.  v.  Dyer,  181  Mass.  593. 

26.  Corcoran  v.  Sonora  Min.  &  Mill.  Co. 
(Idaho)   71  Pac.  127. 

27.  Rev.  St.  1898,  §  317 — Hatch  v.  Lucky 
Bill  Min.  Co..   25  Utah,   405,   71   Pac.   865. 

38.  Invalid  where  made  by  but  four  of 
the  seven  directors — Hatch  v.  Lucky  Bill 
Min.  Co..   25  Utah,   405.   71  Pac.   865. 

29.  The  president,  director  and  business 
manager  of  a  mining  corporation,  cannot  ob- 
ject to  such  a  sale,  where  he  knows  that  it 
was  the  custom  to  levy  assessments,  though 
a  majority  of  the  stock  was  not  present  at 
the  meetings  and  though  a  portion  of  previ- 

Cur.  Law— 48. 


ous    assessments    had    not    been    collected — 
Hatch   v.   Lucky  Bill   Min.   Co.,    25   Utah,    405, 

71  Pac.  865. 

30.  Boll  V.  Camp   (Iowa)    92  N.  W.   703. 

31.  Crissey  v.  Cook   (Kan.)    72  Pac.   541. 

32.  Anglo-American  Land,  Mortg.  & 
Agency  Co.  v.   Dyer,  181   Mass.   593. 

33.  West  V.  Topeka  Sav.  Bank  (Kan.)  72 
Pac.  252. 

34.  Construing  laws  1892,  c.  688,  §  42 — 
Thompson  v.  Knight,  74  App.  Div.  (N.  Y.) 
316. 

35.  Suit  may  be  brought  on  a  call  within 
six  years  from  the  date  of  a  subscription 
within  six  years  after  the  date  of  the  call — - 
Athens  Car  &  Coach  Co.  v.  Blsbree,  19  Pa. 
Super.  Ct.  618.  Where  a  contract  is  not  in 
writing,  actions  are  barred  in  three  years 
under  Code.  1897,  §  2920 — Gold  v.  Paynter 
(Va.)    44  S.  E.   920. 

36.  Gold  V.   Paynter    (Va.)    iA  S.   B.    920. 

37.  38.     West  v.  Topeka  Sav.  Bank   (Kan.) 

72  Pac.    252. 


754 


CORPORATIONS. 


§  HE 


corporation  leaving  debts  unpaid,  but  do  not  run  as   against  a   subscription  so 
long  as  the  corporation  is  a  going  concern  until  a  call  has  been  made.'* 

^Pleading. — Where  a  foreign  corporation  seeks  to  recover  an  assessment  on  its 
shares,  it  need  not  show  the  terms  of  a  statute  and  plan  of  arrangement  referred 
to  in  its  articles.^®  A  complaint  in  an  action  to  recover  an  assessment  need  not 
state  when  the  stock  was  subscribed  and  the  statutory  proportion  paid  in;  it  is 
sufficient  to  allege  that  the  capital  had  been  subscribed  and  the  per  cent  paid.*** 
It  need  not  allege  that  the  assessments  were  equal  and  uniform;  it  is  sufficient 
that  it  state  that  a  per  cent  named  was  assessed  on  each  and  every  share."  It  is 
sufficient  to  allege  that  defendant  had  due  personal  service  and  notice  of  the  calls 
of  assessments  and  that  they  were  made  pursuant  to  the  by-laws  of  the  company, 
and  such  allegation  sufficiently  alleges  that  the  assessment  was  made  and  notice 
given  pursuant  to  the  by-laws.*^ 

(§  14)  E.  Transfer  of  shares.  The  right  to  transfer  shares. — It  may  be,  by 
by-law,  provided  that  stock  shall  not  be  sold  without  first  offering  it  for  sale  to  the 
corporation  directors,  and  such  a  by-law  if  not  prohibited  by  statute  is  not  contrary 
to  public  policy,*'  and  it  applies  to  a  purchase  by  an  agent  in  his  own  name  on 
behalf  of  an  undisclosed  principal.**  The  corporation  cannot  assert  that  a  trans- 
fer without  the  consent  of  its  board  of  directors  is  invalid,  where  the  transferee 
has  been  recognized  as  a  stockholder  by  election  as  a  director.*^ 

Effect  of  transfers. — A  stock  certificate  is  not  a  negotiable  instrument  and 
the  holder  must  show  as  against  the  true  owner  that  he  took  without  notice  and 
for  value.*"  The  fact  that  it  is  transferred  in  blank  on  its  back  does  not  render 
it  such  if  on  its  face  it  is  transferable  only  on  the  books  of  the  company  on  sur- 
render of  the  certificate.*^  The  rule  that  a  purchaser  of  stock  for  value  will  be 
protected  as  against  the  latent  equities  of  one  who  indorses  in  blank  does  not  pro- 
tect one  purchasing  at  a  sale  in  bankruptcy  stock  which  has  been  listed  as  the 
bankrupt's,  though  in  fact  held  by  him  only  to  deliver  to  another  as  collateral,  of 
which  facts  the  "purchaser  has  notice.***  The  assignee  of  stock,  who  has  knowl- 
edge of  defenses  against  the  original  holders,  takes  subject  thereto.*®  He  is  not 
chargeable  with  knowledge  possessed  by  his  assignor  estopping  him  from  asserting 
negligence  of  the  directors  causing  depreciation  in  the  stoclc's  value.^"     One  who 


39.  Anglo-American  Land,  Mortg.  & 
Agency  Co.  v.   Dyer,   181  Mass.   593. 

40.  Under  Rev.  St.  1898,  §  1773,  making  a 
condition  precedent  to  the  doing  of  business 
the  subscription  of  one  half  of  the  capital 
stock  and  payment  in  of  20% — La  Crosse 
Brown  Harvester  Co.  v.  Goddard,  114  Wis. 
610. 

41.  42.  La  Crosse  Brown  Harvester  Co.  v. 
Goddard,  114  Wis.   610. 

43.  Such  a  by-law  authorizes  a  refusal  of 
the  corporation  to  transfer  stock  sold  in  vio- 
lation thereof — Barrett  v.  King,  181  Mass. 
476. 

44.  Barrett  v.   King,  181  Mass.  476. 

4.'>.  None  of  the  parties  can  assert  that  a 
transfer  of  the  stock  of  a  saving  bank  is 
void  where  a  stockholder,  being  offered  an 
office  as  bank  commissioner,  was  compelled 
to  part  with  his  stock  in  order  that  he  might 
be  eligible  and  hence  caused  it  to  be  trans- 
ferred to  his  wife  who  consented  to  receive 
it  and  become  a  director  and  the  bank  also 
consented,  recognized  her  as  a  director  and 
accepted  her  note  indorsed  by  her  husband 
In  reduction  of  his  indebtedness.     The  wife 


could  not  thereafter  repudiate  her  note  nor 
could  the  husband's  administrators  claim  the 
stock  nor  the  bank  deny  its  transfer  and 
claim  a  Hen  based  on  such  denial — Just  v. 
State  Sav.  Bank   (Mich.)   94  N.  W.  200. 

46.  Where  a  transferee  of  stock  was  a 
witness  at  a  proceeding  in  which  it  was 
sought  to  recover  the  shares  from  her  as- 
signor, and  has  knowledge  of  the  issues  in- 
volved, the  judgment  roll  may  be  introduc- 
ed on  Interpleader  by  the  corporation  as 
bearing  on  the  question  of  good  faith,  the 
judgment  having  been  entered  after  the 
transfer,  though  the  decision  was  rendered 
before — Printing  Tel.  News  Co.  v.  Branting- 
ham,  77  App.  Div.    (N.  Y.)   280. 

47.  Farmers'  Bank  v.  Diebold  Safe  &  Lock 
Co..  66  Ohio  St.  367. 

4S.  Goodwin  v.  Ha»npton  Transp.  Co. 
(Mich.)    94   N.  W.  729. 

49.  He  may  be  estopped  to  assert  that 
sale  of  mining  stock  to  pay  assessments  was 
void — Hatch  v.  Lucky  Bill  Min.  Co.,  25  Utah, 
405,  71  Pac.  865. 

50.  Bank  stock — Warren  v.  Robison,  26 
Utah,  205,  70  Pac.  989. 


§  14E 


TRANSFER  OF  STOCK. 


755 


executes  a  power  of  attorney  to  transfer  a  stock  certificate,  though  the  name  of 
the  transferee  and  date  is  left  blank,  cannot  assert  ownership  against  one  pur- 
chasing from  an  apparent  o^oier  in  good  faith.'*^ 

Lien  of  corporation  on  shares. — A  subsequent  agreement  for  a  lien  cannot 
be  asserted  against  a  pledgee  without  notice.^^  Where  after  an  arrangement  that 
salary  advances  should  be  made  to  superintendent  to  be  reimbursed  from  divi- 
dends on  his  stock,  it  was  agreed  that  notes  should  be  given  by  superintendent  for 
further  advances,  the  further  payments  create  a  lien  on  the  superintendent's  stock 
superior  to  the  lien  of  a  pledgee  of  the  stock.®^ 

Mode  of  transferring  shares;  registration. — Where  a  certificate  is  indorsed  in 
blank  as  to  date  and  name  of  transferee,  the  holder  may  sell  by  a  delivery  and 
transfer,^*  and  the  rights  of  third  parties  need  not  be  inquired  into.^"^  The  trans- 
feree has  a  right  to  conveyance  on  the  stock  books  as  against  the  transferror  and 
to  have  new  certificates  issued  to  him.''®  As  between  the  parties  or  those  claim- 
ing under  them,  a  formal  transfer  of  the  stock  on  the  stock  book,  or  the  issuance 
of  certificates  to  the  transferee  is  not  necessary  though  it  may  be  provided  by  stat- 
ute that  corporate  stock  shall  be  transferred  on  the  books  as  prescribed  in  the 
by-laws.®^  Statutory  provisions  that  transfers  of  stock  by  indorsement  and  deliv- 
ery are  good  only  as  between  the  parties  until  entry  on  the  corporation  books  are 
not  for  the  purpose  of  protecting  creditors  of  stockholders,  and  an  unentered  writ- 
ten transfer  of  a  stock  certificate  accompanied  by  transfer  of  the  certificate  for 
security  takes  precedence  of  a  subsequent  attachment  by  a  creditor  of  the  trans- 
ferror.^* Assent  of  the  beneficiaries  of  an  assignment  to  the  transfer  of  corporate 
stock  will  be  presumed  in  order  to  support  an  unentered  assignment  as  against  a 
creditor  of  the  transferror  who  garnishees  the  corporation.^® 

Under  the  Kentucky  statute,  a  sale  of  stock  is  not  completed  until  transfer- 
red on  the  corporate  books,  though  it  is  the  intention  of  the  sellers  to  have  the 
transfer  made  on  payment.®" 

Forged  and  unauthorized  transfers,  and  transfers  in  breach  of  trust. — Where 
stock  certificates  have  been  placed  in  the  power  of  the  corporation's  cashier  to 
issue,  the  corporation  is  liable  for  their  value  to  one  to  whom  the  cashier  fraudu- 
lently conveys  them  in  payment  of  his  personal  debt,  though  the  stock  recited 
that  it  was  transferable  only  on  the  books  of  the  corporation.®^  Where  tlie 
assignor  of  a  certificate  of  stock  in  blank  recovers  it  by  fraud  and  pledges  it  for  his 
own  debt  to  one  who  does  not  make  inquiry  or  attempt  to  secure  a  transfer  on  the 
stock  books,  the  first  assignee,  if  not  culpably  negligent,  will  be  regarded  as  the 
owner  against  the  second.®^ 

Refusal  of  corporation  to  recognize  and  register  transfers. — Transfer  of  cor- 
porate stock  cannot  be  compelled  by  mandamus  except  in  case  of  a  judicial  sale.®* 


51.  Shattuck  V.  American  Cement  Co.,  205 
Pa.  197. 

52.  Just  V.  State  Sav.  Bank  (Mich.)  94  N. 
W.   200. 

53.  Comp.  Laws,  §  7052  provides  that  the 
corporation  shall  have  a  lien  on  the  stock 
of  its  members  for  debts  due  it  from  them — 
Russell  Wheel  &  Foundry  Co.  v.  Hammond 
(Mich.)   89  N.  W.  590. 

54.  Shattuck  v.  American  Cement  Co.,  205 
Pa.   197. 

.'55.     Clews  V.   Friedman,    182   Mass.    555. 
5G.     Though     the     transferror     has     died — 
Culp  V    Mulvane   (Kan.)    71  Pac.  273. 

57.  Culp  v.  Mulvane   (Kan.)   71  Pac.  273. 

58.  Rev.  St.  §  2611 — Mapleton  Bank  v. 
Standrod  (Idaho)   71  Pac.  119. 


59.  South  Texas  Nat.  Bank  v.  Texas  & 
L.  Lumber  Co.  (Tex.  Civ.  App.)  70  S.  W. 
768. 

60.  Ky.  St.  1899,  §  545— Albany  Mill  Co.  v. 
Huff   Bros.,    24   Ky.   L.   R.    2037,   72   S.   W.    820. 

61.  A  bank's  president  signed  blank  cer- 
tificates of  the  bank's  stock  which  were  left 
in  the  charge  of  the  cashier,  who  fraudulent- 
ly filled  out  one  of  such  certificates  to  him- 
self, countersigned  it  and  pledged  It  as  se- 
curity for  a  loan  to  one  without  knowledge 
— Havens  v.  Bank  of  Tarboro,   132  N.  C.   214. 

62.  Farmers'  Bank  v.  Diebold  Safe  & 
Lock  Co.,   66  Ohio  St.   367. 

63.  Where  an  order  has  been  granted  to 
a  trustee  to  sell  corporate  stock,  mandamus 
will    not    lie    to    compel    the    corporation    to 


756 


CORPORATIONS. 


§   HE 


On  a  refusal  of  the  seller  and  the  corporation's  agents  to  recognize  a  sale  and  per- 
mit a  transfer  on  tlie  company's  books,  an  action  in  equity  may  be  brought  for 
the  joint  object  of  preventing  a  disposition  of  the  shares  by  the  seller  and  to  com- 
pel the  corporation  to  make  a  transfer  on  its  books,  and  to  receive  the  buyer  as 
a  shareholder.  In  such  action  the  seller  and  the  corporation  may  be  joined  as 
defendants."*  If  the  seller  was  a  pledgee,  and  the  action  is  against  the  pledgor 
and  the  corporation,  proof  of  execution  of  the  written  transfer  made  by  the  pledgee 
must  be  made  before  it  is  admissible  in  evidence,  thougli  the  validity  of  the  trans- 
fer is  controvcited  without  either  admission  or  denial  of  its  existence.®^ 

A  purchaser  of  stock  from  a  subscriber  who  has  not  received  a  certificate  may 
liave  a  mandatory  injunction  to  secure  the  delivery  of  a  certificate  of  the  stock  pur- 
chased by  him  from  the  original  holder,  though  by  statute  it  is  provided  that  the 
transfer  of  corporate  stock  shall  be  by  delivery  of  the  certificate  and  registry  of 
transfer.®' 

An  executor  may  have  shares  of  stock  owned  by  his  decedent  transferred  by 
the  corporation  to  him  as  executor,  and  he  cannot  be  denied  by  reason  of  by-laws 
giving  the  corporation  an  option  to  refuse  transfer  if  the  owner  is  indebted  to  the 
corporation,  and  requiring  the  transfer  to  be  by  instrument  executed  by  the  trans- 
ferror and  transferee.  A  refusal  to  transfer  in  such  case  may  be  regarded  as  a 
conversion  and  the  value  recovered  by  an  action  at  law.°^  Before  the  transferee 
of  a  stock  subscription  can  compel  the  issuance  of  certificates,  he  must,  in  case 
the  statute  provides  that  transfers  to  be  valid  must  be  entered  on  the  company's 
books,  show  either  an  entry  of  the  transfer  in  such  manner  or  a  duty  on  the  part 
of  the  corporation  to  make  such  an  entry.*^ 

Contracts  for  the  sale  of  shares. ^^ — The  corporation  is  not  liable  for  the 
return  of  a  portion  of  the  purchase  price  of  shares  of  its  stock,  which  have  been 
-old  by  their  holders  on  rescission  of  the  sale  by  the  seller,  though  the  corporate 
name  has  been  signed  to  the  contract  by  its  secretary  and  vice-president  who  were 
sellers.  Nor  is  the  corporation  liable  for  fraudulent  representations  by  the  sell- 
ers." 

A  contract  for  the  sale  of  stock  in  a  corporation  to  be  formed  with  a  capital 
of  a  certain  sum  is  not  complied  with  by  a  tender  of  stock  in  a  corporation  organ- 
ized with  less  capital.''^  A  contract  to  deliver  three-fifths  of  the  capital  stock  of 
a  corporation  is  not  complied  with  by  delivery  of  a  less  amount  though  it  was  all 
which  the  seller  owned,  and  the  contract  also  called  for  a  sale  of  the  seller's  entire 
stock,''^  A  definite  contract  to  transfer  to  plaintiff's  intestate  a  designated  num- 
ber of  shares  of  stock  cannot  be  defended  against  by  the  fact  that  plaintiff's  intes- 
tate was  connected  with  a  stock  pool  as  a  member  or  trustee,  or  that  he  was  an 
officer  of  the  company,  or  that  there  was  an  over-issue  of  the  stock.''*     Where  stock 


transfer  stock  to  the  trustee — TerreU  v. 
Georgia  R.  &  Banking  Co.,  115  Ga.  104. 

6-t,    e.'.     Thornton    v.    Martin,    116    Ga.    115. 

C6.  Where  before  full  payment  and  re- 
■•elpt  of  stock  certificate,  a  subscriber  trans- 
fers his  interest  and  then  pays  up  the 
amount  remaining  due,  the  purchaser  is  en- 
titled to  mandamus  to  compel  issuance  of 
stock  certificate  to  him  though  contrary  to 
the  direction  of  the  seller  (Code.  §  844)  — 
Scherk   v.    Montgomery    (Miss.)    33   So.    507. 

67.  London,  Paris  &  American  Bank  v. 
Aronstein    (C.   C.   A.)    117   Fed.    601. 

68.  Ballinger's  Ann.  Codes  &  St.  §  4261  — 
L,acafC  v.  Dutch  Miller  Min.  Co.,  31  Wash. 
566,  72  Pac.  112. 


C9.  Evidence  held  sufficient  to  show  a 
sale  of  stock  held  in  trust  for  the  seller — 
Merrill  v.  Beat  (Wis.)  92  N.  W.  555.  See  for 
sufficiency  of  complaint  in  an  action  to  re- 
scind a  contract  for  the  sale  of  stock  on 
the  ground  of  fraud — Gutheil  v.  Goodrich 
(Ind.)    66  N.   E.   446. 

70.  Home  Elec.  Light  &  Power  Co.  v. 
Collins    (Ind.    App.)    66   N.   E.    780. 

71.  Faulkner  v.  Robinson  (Tex.  Civ.  App.) 
70  S.  W.   990. 

72.  Dady  v.  O'Rourke,  172  N.  Y.  447. 

73.  Cary  v.  Leszynsky  (Mass.)  67  N.  E. 
637. 


§  14F 


PLEDGE,  OR  GIFT  OF  SHARES.     DIVIDENDS. 


757 


is  transferred  in  consideration  of  payment  of  an  assessment  and  of  future  assess- 
ments, the  seller  cannot  assert  the  illegality  of  the  assessment  as  against  the  buy- 
er's rights  to  dividends/*  On  a  refusal  to  take  shares  bargained  for,  the  seller  is 
entitled  to  the  purchase  price,  and  his  measure  of  damages  is  not  the  difference 
in  the  market  value.'^" 

Where  an  owner  of  stock  allows  it  to  be  sold  as  the  property  of  another,  the 
proceeds  may  be  applied  to  the  personal  debt  of  the  seller  to  the  purchaser,  there 
being  no  evidence  that  the  seller  was  under  a  legal  or  moral  obligation  to  use  the 
money  fcr  any  specified  purpose,  though  there  was  a  plan  that  by  the  sale  the 
interests  of  the  corporation  should  be  benefited.''" 

Where  more  than  enough  shares  of  corporate  stock  remains  unsold  to  satisfy 
one  claiming  to  be  the  owner  of  a  certain  number  of  shares,  such  person  cannot 
have  an  injunction  against  the  sale  of  other  shares.''^ 

The  transferee  of  stock  may  have  the  benefit  of  a  guarantee  made  by  another 
corporation  that  such  stock  should  realize  a  certain  amount,  on  the  affairs  of  the 
corporation  by  which  it  was  issued  being  wound  up,  but  where  payment  is  made  on 
the  guarantee  to  the  seller  in  good  faith,  action  cannot  be  maintained  against  the 
guarantor  but  only  against  the  seller.''® 

Where  with  other  relief  injunction  is  sought  against  a  sale  of  stock,  a  jury 
trial  cannot  be  had.''" 

Pledge  or  mortgage  of  shares. — A  pledgee  for  value  without  notice  is  not 
affected  by  a  bank's  by-law  prohibiting  the  transfer  of  its  stock  without  consent 
of  its  directors  in  case  the  holder  is  in  the  bank's  debt,  nor  is  he  affected  by  an 
agreement  that  the  bank  should  have  a  lien  on  the  stock  for  the  holder's  indebted- 
ness. If  the  corporation  has  notice  of  the  pledge,  it  cannot  assert  claims  subse- 
quently arising  as  against  the  pledgee,  and  notice  is  sufficient  without  a  demand 
for  transfer  of  the  stock  on  the  books.®"  The  purchaser  from  a  pledgee,  of  stock 
which  has  been  given  to  the  pledgor  as  a  broker,  indorsed  with  blank  assignments 
and  power  of  transfer,  may  hold  such  stock  as  against  the  original  owner.®^ 

Gift  of  shares. — Where  a  stockholder  is  in  fact  the  owner  of  the  entire  prop- 
erty of  the  corporation  and  apparently  issues  and  cancels  stock  certificates  as 
lie  pleases,  he  does  not  by  the  mere  fact  that  he  places  his  wife's  name  in  his  stock 
certificates  as  joint  tenant  vest  her  with  title  as  having  made  a  valid  gift,  where 
by  his  subsequent  dealings,  it  appears  that  he  never  surrendered  dominion  over 
the  shares.®^ 

(§  14)  F.  Miscellaneous  rights  of  stoclcholders.  The  right  to  dividends. — 
Dividends  belong  to  the  owners  of  stock  at  the  time  of  declaration,  but  declared  divi- 
dends do  not  go  with  the  stock  unless  there  is  an  understanding  to  such  effect.®^ 
Where  interest  on  stock  is  payable  in  stock,  an  assignee  of  the  stock  is  entitled  to  the 
stock  due.®*     Where  the  owners  of  the  entire  stock  of  the  corporation  agree  that 


74.  Bon  V.  Camp  (Iowa)   92  N.  W.  703. 

75.  Reynolds  v.  CaUender,  19  Pa.  Super. 
Ct.   610. 

76.  Loetscher  v.  Dillon  (Iowa)  93  N.  W. 
98 

77.  Quin  v.  Havenor  (Wis.)    94  N.  W.   642. 

78.  Bacon  v.  Grossmann,  71  App.  Div.  (N. 
Y.)    574. 

79.  A  proceeding  to  set  aside  a  contract 
for  the  sale  of  stock  alleged  to  have  been 
procured  on  false  representations  for  an  in- 
junction to  prevent  the  purchaser  from  dis- 
posing of  such  stock,  and  for  a  decree  that 
the  certificates  be  delivered  up  for  can- 
cellation,   and    that    the    corporation    be    di- 


rected to  re-issue  the  stock  to  plaintiff,  Is 
purely  equitable  in  nature,  so  that  a  jury 
trial  cannot  be  awarded — Morrison  v.  Snow 
(Utah)   72  Pac.  924. 

80.  Just    V.    State    Sav.    Bank    (Mich.)    94 
N.  W.  200. 

81.  Shattuck  V.  American  Cement  Co.,  205 
Pa.  197. 

82.  Bauernschmidt        v.        Bauernschmidt 
(Md.)    54  Atl.   637. 

83.  Groh  V.  Groh,  80  App.  Div.   (N.  Y.)   85; 
flouser  V.   Richardson,    90  Mo.   App.    134. 

84.  Louisville  &  N.  R.  Co.  v.  Hart  County 
(Ky.)   75  S.  W.  288. 


758 


CORPORATIONS. 


§   14F 


certain  dividends  shall  be  paid,  one  to  whom  a  portion  of  the  stock  is  sold  before 
distribution  of  the  dividends  cannot  object  to  the  informal  manner  of  declara- 
tion." 

Where  a  county  is  a  stockholder  it  may  be  estopped  by  the  action  of  its  sink- 
ing fund  commissioners  from  contending  that  stock  dividends  did  not  stop  the 
running  of  interest  which  the  corporation  was  required  to  allow  to  stockhold- 
ers from  the  time  of  paying  for  stock  to  the  time  of  making  the  first  cash  divi- 
dends.^' 

Cash  dividends  go  to  the  life  tenant  and  stock  dividends  to  the  remainder- 
man, but  a  cash  dividend  is  not  made  a  stock  dividend  within  this  rule  by  the  fact 
that  on  the  same  day  that  it  was  declared,  an  issue  of  stock  was  authorized  and 
the  amount  of  the  cash  dividend  equaled  the  subscription  price  of  the  additional 
stock  to  which  the  shareholder  was  entitled  to  subscribe.^^ 

Right  to  inspect  the  hools  and  papers  of  the  corporation.^^ — An  act  confer- 
ring a  limited  right  of  inspection  incident  to  corporate  elections  does  not  by  its 
re-enactment  in  a  general  corporation  act  extend  an  unqualified  right  of  inspec- 
tion to  stockholders.*®  A  stockholder  may  be  granted  the  right  to  inspect  by- 
laws and  resolutions,  having  similar  effect,  of  a  corporation,  no  ulterior  purpose 
being  shown  or  prospect  of  abuse  of  the  corporation's  rights.®"  The  right  of  stock- 
holders to  examine  corporate  books  extends  to  fire  insurance  companies,  but  an 
application  by  one  seeking  to  gain  control  of  a  corporation  for  the  purpose  of 
wrecking  it,  or  by  a  third  person  secretly  acting  for  him,  is  properly  denied.'^ 
The  stockholder  should  not  be  granted  a  mandamus  for  the  purpose  of  securing 
inspection  of  the  books  and  papers  except  in  emergency  and  for  necessary  pur- 


85.  Evidence  held  to  show  an  agreement 
between  the  members  of  a  family  owning 
the  entire  stock  of  a  corporation  that  a  cer- 
tain sum  should  be  distributed  as  dividends 
— Groh  V.  Groh,   80  App.  Div.    (N.  Y.)    85. 

86.  The  county  acquiesced  In  several  cash 
payments  based  on  the  theory  that  interest 
had  stopped — Louisville  &  N.  R.  Co.  v.  Hart 
County  (Ky.)  75  S.  W.  288. 

87.  Lyman  v.  Pratt,   183  Mass.    58. 
(Note)     "When   a  person   is   entitled   to  the 

Income  and  proiits  of  shares  of  stock  for  life 
or  for  a  term  of  years,  under  a  will  or  gift, 
there  is  a  conflict  of  opinion  as  to  his  right 
to  dividends.  The  following  summary  may 
be  given: 

(1)  He  is  not  entitled  to  share  in  the 
profits  of  the  corporation  before  a  dividend 
is  declared. 

(2)  He  Is  not  entitled  to  dividends  de- 
clared before  the  testator's  death. 

(3)  He  is  entitled  to  dividends  declared 
after  the  testator's  death,  If  declared  out  of 
profits  earned  since  his  death. 

(4)  Some  courts  hold  that  he  is  entitled  to 
dividends  declared  after  the  testator's  death, 
though  declared  out  of  profits  earned  and 
accumulated  by  the  corporation  before  his 
death;  but  the  rule  Is  otherwise  in  several 
states. 

(5)  He  is  not  entitled  to  dividends  declared 
out  of  the  capital,  or  funds  representing  cap- 
ital. 

(6)  He  is  entitled  to  dividends  out  of 
profits  payable  In  bonds  or  certificates  of  in- 
debtedness. 

(7)  He  is  not  entitled  to  the  right  to  sub- 
scribe for  new  shares  on  an  increase  of  the 


capital  stock,  nor  to  the  proceeds  of  a  sale 
nf  such  privilege. 

(8)  In  some  states  it  is  held  that  he  is  en- 
titled to  a  stock  dividend  if  he  would  be  en- 
titled to  the  same  dividend  if  payable  in  cash, 
but  the  rule  in  other  states  is  to  the  contrary. 

(9)  On  his  death,  his  personal  representa- 
tive is  entitled  to  a  dividend  declared  during 
his  lifetime,  and  it  has  been  held  that  he  is 
entitled  to  a  dividend  declared  after  his  death 
out  of  profits  earned  during  his  lifetime. 

Clark  &  Marshall,  Corporations,  Vol.  II,  p. 
1614. 

S8.  See  Discovery  for  proceedings  against 
corporations  and  officers  for  the  purpose  of 
o'otaining  information  as  to  corporate  affairs 
before  action  is  begun  or  for  the  purpose  of 
preparing  for  trial. 

89.  A  statute  under  the  title  "An  act  to 
prevent  fraudulent  elections  in  incorporated 
companies  and  to  facilitate  proceeding's 
against  them"  remains  subject  to  the  limi- 
tation imposed  by  the  title,  though  re-en- 
acted in  a  revision  tinder  the  title  "An  act 
concerning  corporations"  and  though  gen- 
eral in  language,  does  not  entitle  the  stock- 
holder to  an  absolute  right  to  mandamus  or 
confer  on  him  a  greater  than  his  common 
law  right — State  v.  National  Biscuit  Co.  (N. 
J.   Sup.)    54  Atl.   241. 

90.  In  re  Coats,   75  App.  Div.    (N.   Y.)    567. 

91.  Application  by  a  stenographer  for  an 
inspection  of  the  books  of  an  insurance 
company,  alleging  that  he  owned  a  fourth  of 
the  entire  corporate  stock,  and  that  because 
of  reports  showing  a  decrease  in  surplus 
and  an  increase  In  losses,  he  had  become 
alarmed  as  to  the  safety  of  his  investments 
—In  re  Coats,  73  App.  Div.   (N.  Y.)   178. 


g  14F 


INSPECTION  OF  BOOKS.     CONTRACTS. 


759 


poses."'  It  should  not  be  granted  to  compel  the  exhibition  of  corporate  books  to 
the  executors  of  a  stockholder  where  it  is  sought  with  the  evident  purpose  of 
injuring  the  corporate  business.^^  Since  by  examination  of  the  officers  under  a 
subpoena  the  value  of  corporate  stock  may  be  determined  for  the  purposes  of 
estimating  a  transfer  tax,  mandamus  will  not  lie  to  compel  an  exhibition  of  the 
corporate  books  to  the  executors,^*  Under  the  New  Jersey  corporation  act,  one 
seeking  mandamus  for  the  examination  of  stock  and  transfer  books  must  show 
that  his  right  grows  out  of  his  position  as  a  stockholder.^^ 

An  order  granting  an  inspection  should  be  limited  as  to  the  place  and  dura- 
tion of  the  investigation.®^  An  order  to  produce  books  and  papers  of  a  corpora- 
tion before  a  referee  does  not  authorize  an  inspection  if  it  is  granted  in  connec- 
tion with  an  order  to  the  secretary  to  appear  for  examination,  but  authorizes 
simply  the  production  for  the  purposes  of  examination  to  enable  the  secretary  to 
refresh  his  memory,  and  such  order  need  not  comply  with  statutory  provisions  for 
the  inspection  of  corporate  books." 

Remote  and  speculative  damages  cannot  be  recovered  for  a  refusal  of  the 
president  to  permit  an  inspection  of  the  corporate  books  by  a  stockholder,  if  the 
president  has  not  acted  in  bad  faith.*® 

Penalties  for  refusal  of  inspection. — A  corporation  does  not  incur  three 
penalties  for  three  refusals  to  permit  inspection  of  the  books,  where  the  party 
seeking  to  recover  desired  to  use  the  books  for  one  occasion  but  repeated  his  re- 
quest for  two  or  three  consecutive  days,  and  made  the  demand  three  times,  twice 
of  the  secretary  and  once  of  the  president.^® 

Contracts  and  conveyances  between  a  corporation  and  its  stockholders. — If 
the  stock  of  a  corporation  has  been  deposited  with  one  of  its  officers  to  be  used 
for  the  interests  of  the  corporation,  he  may  transfer  part  of  it  to  'a  stockholder 
as  a  reimbursement  for  services  and  loss  in  the  interest  of  the  corporation.^  Wliere 
it  is  desired  to  rescind  a  sale  of  stock  purchased  by  the  corporation,  the  corpora- 
tion cannot  tender  back  the  stock  after  it  has  incumbered  its  property  but  must 
pay  the  value  of  the  stock  at  the  time  of  transfer.^  After  a  transfer  of  stock  to 
the  corporation  for  use  as  general  assets,  the  transferring  stockholders  cannot 
maintain  action  for  conversion  of  the  stock  by  other  stockholders  since  they  no 
longer  have  an  individual  right  to  any  specific  shares.' 

Stockholders  are  not  estopped  as  against  a  subsequent  mortgagee  with  notice 
to  assert  claims  on  property  which  they  have  sold  the  corporation,  in  the  absence 
of  a  showing  of  actual  consent  to  the  mortgage  or  of  presence  at  the  meeting 
when  it  was  authorized.* 


92.  Not  granted  in  favor  of  a  stockholder 
owning  6%  of  the  capital  stock,  for  the  pur- 
pose of  finding  out  if  the  corporation  had 
been  properly  managed,  where  considerable 
loss  would  result  from  the  examination,  and 
transactions  questioned  by  the  stockholder 
were  explained  by  the  directors — In  re  Col- 
well,  76  App.  Div.  (N.  Y.)  615.  A  stockholder 
is  not  entitled  to  mandamus  compelling  It 
to  submit  its  books  and  papers  to  his  in- 
spection, merely  that  he  may  ascertain  the 
names  and  residence  of  the  stockholders  to 
consult  with  them  regarding  the  manage- 
ment of  the  company — In  re  Latimer,  75 
App.  Div.  522,  12  N.  Y.  Ann.  Cas.  9. 

93.  In  re  Kennedy.  75  App.  Div,  (N.  Y.) 
188. 

94.  Subpoena  would   Issue   from  the  pub- 


lic  treasurer — In   re   Kennedy,    75   App.    Div. 
(N.   Y.)    188. 

95.  Gen.  Corp.  Act,  §  33 — State  v.  Nation- 
al Biscuit  Co.   (N.  J.  Sup.)   54  Atl.   241. 

96.  In   re  Coats.  73  App.   Div.    (N.  Y.)    178. 

97.  Code  Civ.  Proc.  §§  803-809,  872,  subd. 
7 — Mauthey  v.  "Wyoming  County  Co-Op. 
Fire  Ins.   Co.,   76  App.  Div.    (N.  Y.)    579. 

98.  Bourdette  v.  Sieward,  107  La.  258. 

99.  Action  to  recover  penalty  under 
Stock  Corporation  Law,  laws  1892,  p.  1840, 
c.    688,   §  53 — Cox  v.   Paul,   175   N.   Y.    328. 

1.  Playa  de  Oro  MIn.  Co.  v.  Gage,  172  N. 
Y.  630. 

2.  Oliver  v.  Rahway  Ice  Co.  (N.  J.  Ch.) 
54  Atl.  460. 

3.  Crosby  v.  Stratton  (Colo.  App.)  68  Pac. 
130. 


7(S0 


CORPORATIONS. 


§  14F 


Actions  hy  storl-holders  to  enforce  individual  rights. — The  mere  fact  that 
persons  are  stockholders  will  not  permit  them  to  intervene  in  a  suit  against  the 
corporation  unless  on  a  well  defined  ground  to  defend  their  own  interests."  A 
plaintiff  may  estiiblish  his  riglits  as  a  stockholder  under  a  complaint  which  shows 
that  he  is  a  member  of  the  corporation  defendant,  and  a  stockholder,  and  that 
his  membership  is  denied,  though  the  main  purpose  of  the  complaint  is  for  an 
injunction.  It  is  sufficient  to  allege  that  plaintiff  owns  a  share  of  the  stock  with- 
out saying  the  manner  in  which  it  was  received  or  acquired." 

Remedies  of  stoclcholdcrs  for  injuries  to  the  corporation. — Equity  has  power 
to  award  an  injunction  in  favor  of  a  stockholder  and  at  the  same  time  compel  an 
accounting  from  the  directors  on  the  theory  of  gross  negligence,  wrong  doing,  or 
waste,''  though  a  minority  stockholder  cannot  object  to  an  exercise  by  the  majority 
of  their  legal  powers  in  the  absence  of  fraud  or  attempt  to  exceed  legal  authorit}'," 
but  may  have  equitable  relief  against  management  of  the  corporation  sacrificing 
his  interest;"  hence,  minority  stockholders  cannot  object  to  an  act  of  the  majority, 
which  is  within  their  powers  ratifying  a  resolution  directing  the  president  and 
secretary  to  make  a  sale  of  the  good  will  and  property  of  the  corporation,  provid- 
ing that  such  acts  were  clear  of  fraud  and  with  the  intention  in  good  faith  to 
wind  up  the  affairs  of  the  corporation.  A  general  charge  of  conspiracy  to  stifle 
competition  in  trade  will  not  warrant  relief,  the  sale  itself  being  valid,  a  subse- 
quent intention  to  act  in  restraint  of  trade  being  collateral,  and  a  dissenting  stock- 
holder cannot  have  a  reconveyance  decreed  and  a  further  decree  that  the  directors 
and  the  grantee  company  pay  all  damages  sustained,  there  being  no  actual  fraud.^" 
They  cannot  secure  the  annulment  of  a  lease  of  corporate  property  approved  by 
the  majority  stockholders,  without  showing  of  fraud  or  injury  to  the  welfare  of 
the  corporation,"  or  have  the  intervention  of  equity  to  restrain  the  managing 
directors  in  expenditures  unless  not  shown  to  be  ultra  vires  or  in  the  pursuance 
of  a  fraudulent  scheme.^^ 

A  majority  stockholder  does  not  occupy  a  trust  relation  toward  minority 
stockholders  if  he  does  not  actually  control  the  affairs  of  the  corporation  to  their 
prejudice,  and  may  purchase  the  corporate  property  at  a  judicial  sale,  in  the 
absence  of  actual  fraud,^^  but  where  a  controlling  interest  in  a  corporation  is 
acquired  by  a  promise  to  pay  stockholders  a  certain  sum  per  annum  on  each  share, 
a  proposition  by  a  succeeding  corporation  which  acquires  such  controlling  inter- 


4.  Martin  v.  Eagle  Develop.  Co.,  41  Or. 
448,   69    Pac.    216. 

5.  Gunderson  v.  Illinois  T.  &  S.  Bank, 
100  111.   App.   461. 

6.  Gowdy  Gas  Well.  Oil  &  Mineral  "Water 
Co.  V.  Patterson.  29  Ind.  App.   261. 

7.  Moneuse  v.  Riley.  40  Misc.   (N.  Y.)   110. 

8.  Metcalf  v.  American  School  Furniture 
Co.,  122  Fed.  115;  Coss  v.  Herring.  24  Ohio 
Giro.  R.  36. 

9.  As  where  the  corporation  occupies  the 
same  offices  with  the  competing  corporation 
and  employs  the  same  agents,  the  two  cor- 
porations being  controlled  by  the  same  par- 
ties— Jacobus  V.  American  Mineral  Water 
Mach.  Co..  38  Misc.  (N.  Y.)  371.  Showing 
held  sufficient  to  oust  control  of  directors 
where  a  portion  of  the  assets  of  the  cor- 
poration were  sold  at  a  loss  of  over  two 
million  dollars  and  there  was  no  action  to 
set  the  sale  aside,  though  there  were  un- 
questionable grounds  therefor  under  the 
laws  of  the  state  where  it  was  made — Wat- 
kins  V.   North  American  Land  &  Timber  Co., 


107  La.  107.  The  mere  fact  that  a  director 
acts  for  two  corporations  in  a  transaction, 
does  not  of  itself  allow  a  stockholder  an  In- 
junction, though  it  may  cast  the  burden  of 
showing  good  faith  on  the  directors — 
Robotham  v.  Prudential  Ins.  Co.  (N.  J.  Ch.) 
53  Atl.  842.  Evidence  held  insufficient  to 
show  a  misappropriation  of  capital  stock  of 
a  corporation  by  other  corporations — Pitts- 
burg, C,  C.  &  St.  L.  R.  Co.  V.  Dodd,  24  Ky.  L. 
R.  2057,  72  S.  W.  822. 

10.  Metcalf  v.  American  School  Furniture 
Co..   122   Fed.   115. 

11.  Dickinson  v.  Consolidated  Traction 
Co.  (C.  C.  A.)  119  Fed.  871.  Facts  held  not 
to  show  that  the  price  charged  by  a  cor- 
poration for  the  use  of  Its  plant  by  another 
corporation  which  held  the  majority  of  its 
stock  was  unfair  or  unreasonable — Cannon 
V.   Brush   Elec.   Co..   96  Md.   446. 

12.  Taylor  v.   Southern   Pac.   Co.,   122  Fed 
147. 

13.  Rothchild  v.  Memphis  &  C.  R.  Co.  (C 
C.  A.)   113  Fed.  476. 


§  14F 


REMEDIES  OF  MINORITY  STOCKHOLDERS. 


761 


est,  to  vote  it  to  rescind  the  agreement,  may  be  restrained  on  the  suit  of  a 
minority  stockholder.^*  The  stockholder  who  joins  with  other  stockholders  in  the 
sale  of  the  entire  stock  and  property  of  the  corporation  may  be  required  to  account 
to  other  stockholders  for  an  additional  sum  which  he  obtained  through  a  secret 
arrangement  with  the  purchaser,  or  if  the  sum  may  be  definitely  determined 
without  an  accounting,  a  stockholder  may  sue  in  assumpsit  to  recover  his  share  as 
money  had  and  received  to  his  use.^^  An  action  for  damages  from  a  conspiracy 
of  majority  holders  to  depreciate  the  value  of  the  stock  and  sacrifice  the  prop- 
erty may  be  maintained  for  the  injury  by  the  corporation,  its  receiver  or  any 
stockholder,  after  proper  demand,  in  behalf  of  the  corporation  and  for  its  bene- 
fit. The  damages  recoverable  are  the  full  value  of  the  property  and  franchises 
prior  to  the  acts  producing  insolvency  less  the  sum  which  the  property  brought 
on  foreclosure  sale.^** 

Laches. — The  stockholder  must   act  promptly  on   discovery  of  the  fraud.*^ 

Who  may  assert  rights. — In  order  that  a  stockholder  may  intervene  as  such 
in  foreclosure  proceedings,  he  must  clearly  show  his  status  as  a  stockholder.^* 

Unless  such  mismanagement  has  affected  his  interests,  one  who  becomes  a 
stockholder  has  no  right  of  action  for  prior  mismanagement,  and  has  no  right  of 
action   if   he  acquire  his  interest  through  the  wrongdoer's  mismanagement.^® 

One  whose  stock  has  been  sold  under  an  assessment  is  not  entitled  to  bring 
an  action  as  a  stockholder  based  on  the  negligence  of  the  directors  in  necessitat- 
ing such  an  assessment,  since  the  cause  of  action  exists  in  favor  of  the  corporation 
for  the  misconduct  of  the  directors  and  may  be  prosecuted  only  by  the  stock- 
holder in  case  of  the  refusal  of  the  corporation  or  where  the  wrongdoers  are  in 
control.^"* 

Where  right  of  action  is  solely  in  corporation. — A  secret  profit  derived  from 
the  directors  upon  a  sale  of  the  property  of  the  corporation  does  not  allow  a  dis- 
senting stockholder  to  rescind  the  sale  in  equity,  the  remedy  being  an  accounting 
between  the  directors  and  the  corporation.  The  same  is  true  of  an  objection  to 
the  transfer  on  the  ground  of  want  of  consideration.^^  A  minority  stockholder  is 
not  entitled  to  bring  an  action  for  damages  for  a  conspiracy  to  depreciate  the 
value  of  the  stock  and  sacrifice  the  property  of  the  corporation,  since  the  cause 
of  action  therefor  accrues  to  the  corporation.** 


14.  On  the  ground  of  fraud  against  a 
minority  stockholder  and  as  showing  that 
the  majority  stockholders  were  opposed  to 
the  Interests  of  the  corporation — McLeary  v. 
Erie  Telegraph  &  Telephone  Co.,  38  Misc. 
(N.  Y.)    3. 

15.  Synnott  v.  Cummings,  116  Fed.  40. 

16.  Niles  V.  New  York  Cent.  &  H.  R.  R. 
Co.   (N.  Y.)    68  N.  E.  142. 

17.  Delay  for  11  years  before  seeking  to 
enforce  a  stockholder's  rights  Is  fatal — At- 
lantic Trust  Co.  V.  New  York  City  Suburban 
Water  Co.,  75  App.  Div.    (N.   Y.)   354. 

IS.  Proof  that  stock  had  been  issued  pe- 
titioner but  that  It  had  been  transferred  as 
collateral  security  and  In  subsequent  trans- 
actions one  of  the  certificates  had  passed 
Into  the  hands  of  a  third  person  who  claim- 
ed to  be  the  lawful  holder  and  the  where- 
abouts of  the  other  was  undisclosed,  is  in- 
sufficient, though  it  is  asserted  that  the  cer- 
tificates had  been  unlawfully  diverted  by 
the  assignee — Atlantic  Trust  Co.  v.  New 
York  City  Suburban  Water  Co.,  75  App.  Div. 
(N.  Y.)    354. 

19.     Home    Fire   Ins.    Co.    v.    Barber    (Neb.) 


93  N.  W.  1024.  An  allegation  that  before 
any  of  the  alleged  or  pretended  sales  or 
transfers  of  property  referred  to,  plaintiff 
owned  a  large  amount  of  the  stock  of  a  cor- 
poration, is  a  sufficient  allegation  that  plain- 
tiff's interest  was  acquired  before  the  fraud- 
ulent transaction — Tevis  v.  Hammersmith 
(Ind.  App.)    66  N.  E.  912. 

20.  Hanna  v.  People's  Nat.  Bank,  76  App. 
Div.    (N.  Y.)    224. 

21.  An  averment  In  a  bill  charging  re- 
ceipt of  secret  profits  which  appears  to  be 
merely  an  act  of  the  directors  in  further- 
ance of  an  unlawful  conspiracy  and  not  the 
basis  for  an  accounting  between  the  di- 
rectors and  the  corporation,  will  not  sus- 
tain a  bill  primarily  brought  for  a  rescis- 
sion as  entitling  complainant  to  an  account- 
ing— Metcalf  v.  American  School  Furniture 
Co.,   122   Fed.   115. 

22.  Conspiracy  was  alleged  to  divert  and 
reduce  the  earnings  of  a  railroad  so  that  it 
should  be  unable  to  pay  the  interest  on  its 
bonds  and  a  foreclosure  sale  .iustified — Niles 
v.  New  York  Cent.  &  H.  R.  R.  Co.  (N.  Y.) 
68   N.   E.   142. 


762 


CORPORATIONS. 


§   14F 


Procedure. — Proceedings  to  enjoin  directors  from  a  breach  of  trust  may  be 
brought  by  a  nonresident  stockholder  in  a  federal  court,  though  the  stockholders 
who  are  residents  of  the  state  of  incorporation  defray  part  of  the  expenses,  and 
he  is  acting  in  harmony  with  them.^^  Where  it  is  sought  to  set  aside  a  sale  by  the 
directors  because  of  lesion  against  moiety,  it  need  not  be  alleged  that  there  was 
a  purchaser  ready  at  the  greater  value,  but  it  is  merely  necessary  to  set  out  the 
difference  between  the  price  and  the  value.^*  Where  a  stockholder  seeks  to  compel 
an  accounting  by  the  president  of  a  corporation  as  to  funds  obtained  by  him,  the 
decree  should  not  direct  that  payment  should  be  made  to  the  stockholder  in  pro- 
portion to  his  holdings  of  the  amount  of  capital  stock. ^^ 

Necessity  of  seeding  corporate  action. — An  action  by  a  stockholder  for  the 
benefit  of  the  corporation  cannot  be  maintained  without  a  demand  on  and  refusal 
of  the  board  of  directors  to  bring  the  suit,  unless  it  is  shown  that  such  demand 
would  have  been  useless.^®  The  mere  fact  that  a  corporation  has  been  enjoined  to 
take  an  action  does  not  authorize  a  proceeding  by  a  stockholder."  A  shareholder 
cannot  bring  an  action  against  the  directors  for  mismanagement  after  the  com- 
pany is  in  the  hands  of  a  receiver  without  showing  an  application  to  the  receiver 
or  to  the  board  of  directors  for  the  institution  of  such  a  proceeding.^* 

Equity  rule  94  of  the  Federal  courts,  requiring  the  effort  of  a  stockholder 
suino-  in  his  own  right,  to  obtain  action  by  the  directors  or  stockholders  of  the 
corporation,  to  be  set  out  with  particularity  in  the  petition,  makes  such  efforts 
jurisdictional  unless  there  is  an  allegation  and  proof  that  they  would  have  been 
futile,  and  if  the  question  comes  up  on  final  hearing,  the  truth  of  the  allegations 
must  be  determined  from  the  evidence.^'    A  mere  allegation  of  a  friendly  applica- 


23.  Collusion  is  shown  in  the  sense  of 
•equity  rule  94,  it  appearing  that  the  con- 
trolling majority  in  the  corporation  Is  op- 
posed to  the  object  sought  by  the  bill,  and 
demand  on  the  directors  for  action  to  that 
.>nd  would  be  useless — New  Albany  Water- 
works V.  Louisville  Banking  Co.  (C.  C.  A.) 
122   Fed.   776. 

24.  Watkins  ▼.  North  American  Land  & 
Timber  Co.,   107  La.   107. 

•     25.     Chicago    Macaroni    Mfg.    Co.    r.    Bog- 
giano,  202  111.   312. 

26.  Suit  by  stockholders  to  set  aside  a 
judgment  on  a  note  given  by  the  directors 
to  a  director — Ide  v.  Bascomb  (Colo.  App.) 
72  Pac.  62.  Complaint  held  to  show  suffi- 
cient facts  excusing  an  attempt  to  obtain 
action  through  the  corporation  In  a  pro- 
ceeding to  enjoin  a  disposition  of  corporate 
property — Tevis  v.  Hammersmith  (Ind. 
App.)  66  N.  E.  79.  A  complaint  in  an  ac- 
tion against  the  officers  .md  directors  of  a 
■tiorporation  to  secure  an  accounting  held  to 
show  that  a  demand  on  the  corporation  to 
bring  the  action  would  have  been  useless — 
Miller  v.  Barlow,  78  App.  Div.  (N.  Y.)  331. 
Equity  Rule  94 — Dickinson  v.  Consolidated 
Traction  Co.,  114  Fed.  232.  Complaint  by 
minority  stockholders  seeking  the  appoint- 
ment of  a  receiver  and  winding  up  of  the 
corporation,  held  to  sufficiently  charge 
gross  negligence  in  the  management  of  the 
business  on  the  part  of  the  corporate  di- 
rectors and  a  majority  of  the  stockholders 
and  also  that  a  request  of  the  directors  to 
remedy  the  wrongs  would  be  futile — Klugh 
V.  Coronaca  Mill  Co.  (S.  C.)  44  S.  E.  566. 
In  order  that  a  stockholder  may  enjoin  the 
corporation    from    paying    taxes,    it    must    be 


shown  that  he  has  applied  to  the  president 
and  treasurer  of  the  corporation  to  take 
steps  to  render  unnecessary  such  payment — 
Stewart  v.  Washington  &  A.  S.  S.  Co.,  187 
U.  S.  466.  An  averment  that  a  stockholder 
addressed  a  letter  to  the  directors  of  the 
corporation  requesting  them  to  call  a  meet- 
ing of  the  directors  and  stockholders  for 
the  purpose  of  redeeming  corporate  prop- 
erty which  had  been  on  foreclosure.  In  the 
absence  of  a  showing  that  such  letter  ever 
reached  the  directors,  or  that  it  contained 
anything  calling  the  directors'  attention  to 
the  facts  on  which  relief  was  sought,  does 
not  show  a  sufficient  demand  for  corporate 
action  to  allow  a  bill  by  minority  stock- 
holders to  have  a  foreclosure  sale  set  aside — 
Johns  v.  McLester   (Ala.)   34  So.  174. 

27.  A  stockholder  cannot  enjoin  a  sale 
under  a  mortgage,  though  the  corporation 
has  been  enjoined  from  preventing  such 
sale  on  the  mere  ground  that  the  mortgage 
is  ultra  vires,  where  there  is  no  showing  of 
collusion  between  the  directors  and  the 
plaintiff  in  the  injunction  suit  against  the 
corporation  or  refusal  of  the  directors  to 
dissolve  the  Injunction — Smith  v.  Bulkley 
(Colo.  App.)    70  Pac.  958. 

28.  Coble  V.  Beall,   130  N.  C.  533. 

29.  A  bill  by  minority  stockholders  at- 
tacking the  validity  of  a  purchase  by  the 
managing  officers  of  a  corporation  of  the 
property  owned  by  them,  and  making  the 
former  owners  of  the  property  defendants. 
is  within  the  operation  of  Equity  Rule  94 — 
Worth  IMfg.  Co.  V.  Bingham  (C.  C.  A.)  116 
Fed.  785.  As  is  an  action  by  a  minority 
stockholder  in  the  federal  court  to  set  aside 
a    lease    executed    by    the    directors    and    ap- 


§i4F 


REMEDIES  OF  MINORITY  STOCKHOLDERS.     RECEIVER. 


763 


tion  to  the  directors  not  to  proceed  with  an  act,  together  with  an  unsubstantiated 
allegation  that  the  directors  own  the  majority  of  the  stock,  is  not  sufficient  to 
excuse  the  allegations  required  by  the  rule  or  to  support  them  if  made.'"  A 
demand  on  the  resident  managing  agent  is  not  sufficient  to  comply  with  the  rule, 
mere  distance  of  the  directors'  residence  from  that  of  the  plaintiff  being  relied 
on  as  an  excuse  for  failure  to  attempt  to  secure  action  by  the  corporation  or 
directors.^^ 

\Vhere  the  directors  have  refused  to  protect  the  interests  of  the  corporation 
in  litigation,  intervention  of  the  shareholders  for  such  purpose  may  be  allowed 
in  the  discretion  of  the  trial  court.^- 

Where  a  majority  of  the  directors  are  defendants,  they  need  not  be  asked  to 
sue  in  the  name  of  the  corporation.^^  There  is  a  sufficient  showing  to  entitle 
minority  stockholders  to  sue  to  enforce  a  contract  with  another  corporation,  where 
it  is  alleged  that  the  majority  stockholders,  who  are  the  same  in  both  corpora- 
tions, as  were  also  the  officers  and  directors,  would  not  sue  although  requested, 
and  if  a  third  corporation  is  involved  under  the  same  contract  and  would  be  lia- 
ble on  the  same  conditions,  the  minority  stockholders  may  maintain  suit  against 
it,  also,  though  the  officers  and  directors  mentioned  are  not  implicated.'*  The 
fact  that  one  of  the  directors,  was  a  business  associate  of  defendant  and  that 
another  was  an  employe  of  another  defendant,  there  being  twelve  directors,  does 
not  do  away  with  the  necessity  of  a  demand  for  action  by  them.^' 

Appointment  of  receiver. — A  majority  of  the  stockholders  may  secure  a 
receiver.^"  A  minority  may  have  a  receiver  only  in  an  extreme  case.'^  The  right 
to  appointment  is  a  question  for  the  court.  It  should  not  be  denied  because  it 
will  entail  great  cost  and  expense.'*  A  receiver  will  be  appointed  only  in  case  of 
actual  wrong,  injustice,  and  injury  in  the  management  of  the  business."*     The 


proved  by  the  majority  of  the  stockholders 
at  a  duly  called  meeting,  whether  the  in- 
validity of  the  lease  is  alleged  to  be  on  the 
ground  of  fraud  or  ultra  vires — Dickinson 
V.  Consolidated  Traction  Co.,  114   Fed.   232. 

30.  Suit  to  set  aside  a  lease  by  the  di- 
rectors of  a  corporation  as  ultra  vires,  det- 
rimental to  the  stockholder's  interests  and 
the  result  of  fraud  and  conspiracy  of  the 
directors — Dickinson  v.  Consolidated  Trac- 
tion Co..   114  Fed.   232. 

31.  Stewart  v.  Washington  &  A.  S.  S.  Co.. 
187  U.   S.   466. 

32.  Gunderson  v.  Illinois  T.  &  S.  Bank, 
100  111.  App.  461. 

33.  Appleton  v.  American  Malting  Co.  (N. 
J.  Sup.)  54  Atl.   454. 

34.  Pittsburg,  C,  C.  &  St.  L.  R.  Co.  v. 
Dodd,   24  Ky.  L.  R.   2057,  72  S.  W.  822. 

35.  Siegman  v.  Maloney  (N.  J.  Law)  54 
Atl.   405. 

36.  Posner  v.  Southern  Exhaust  &  Blow 
Pipe  Co.,   109  La.   658. 

37.  Continental  Nat.  Bldg.  &  Loan  Ass'n 
v.  Miller  (Fla.)  33  So.  404.  On  a  mere  ques- 
tion of  mismanagement,  a  receiver  will  not 
be  appointed  at  the  Instance  of  the  holders 
of  a  small  minority  of  the  stock — Callaway 
V.  Powhatan  Imp.  Co.,  95  Md.  177. 

38.  Davies  v.  Monroe  Water  Works  & 
Light  Co.,  107  La.  145. 

39.  Gross  mismanagement  of  officers  and 
directors  Is  ground — Posner  v.  Southern  Ex- 
haust &  Blow  Pipe  Co.,  109  La.  658.  Rights 
of  stockholders  and  creditors  being  injured 
by  mismanagement  or  waste  of  the  corpo- 
rate   property   by    the   directors   is   ground — 


Davies  v.  Monroe  Water  Works  &  Light  Co.. 
107  La.  145.  A  receiver  and  an  injunction 
should  not  be  granted  at  the  suit  of  a  minor- 
ity stockholder  on  the  ground  of  misman- 
agement and  insolvency  where  it  appears 
that  the  losses  were  due  to  general  business 
conditions,  that  under  the  same  manageme.nt 
it  had  previously  been  prosperous,  its  prop- 
erty was  worth  double  its  liabilities,  and  the 
creditors  and  majority  stockholders  oppose 
the  appointment  and  also  that  an  action 
which  was  alleged  to  have  been  fraudulent 
was  pursuant  to  an  unanimous  vote  of  the 
stockholders  present  at  a  called  meeting — 
Worth  Mfg.  Co.  V.  Bingham  (C.  C.  A.)  116 
Fed.  785.  Complaint  seeking  a  receiver  of  a 
telephone  company  on  the  ground  of  mis- 
management held  sufficient — Fernald  v.  Spo- 
kane &  British  Columbia  Telephone  &  Tele- 
graph Co.,  31  Wash.  672,  72  Pac.  462.  Re- 
ceivers of  an  insurance  company  may  be 
appointed  without  request  of  the  managers 
at  the  instance  of  a  stockholder,  where  It 
has  fraudulently  ceased  doing  business,  has 
no  income,  and  Is  paying  large  salaries — 
Treat  v.  Pennsylvania  Mut.  Life  Ins.  Co.,  203 
Pa.  21.  Violation  of  the  charter  rights  of 
minority  share-holders  by  the  majority  Is 
ground — Davies  v.  Monroe  Water  Works  & 
Light  Co.,  107  La.  145.  A  receiver  should  not 
be  appointed  on  a  bill  by  a  minority  stock- 
holder alleging  that  he  has  been  by  fraudu- 
lent misrepresentations  Induced  to  vote  In 
favor  of  a  contract  greatly  in  favor  of  the 
majority  stockholders  and  detrimental  to  the 
corporation — Devine  v.  Frankford  Steel  & 
Forging  Co.,  205  Pa.  114. 


7b4 


CORPORATIONS. 


§  ISA 


creation  and  investment  of  a  surplus  fund  is  not  ground  for  the  appointment  of 
a  receiver,  if  applicant  has  not  made  an  objection  and  effort  to  secure  the  distri- 
bution of  the  funds  before  suit,  or  if  he  has  acquiesced  in  the  investment.*" 

Insolvency  alone  without  fraud  or  gross  mismanagement  will  not  authorize 
the  appointment  of  a  receiver  at  the  instance  of  a  minority  stockholder.*^  A 
receiver  cannot  be  appointed  where  it  appears  that  the  corporation  is  transacting 
a  successful  business,  and  plaintiff's  rights  as  a  stockholder  are  in  dispute.*- 
Resignation  of  the  directors  pending  an  action  does  not  authorize  the  appoint- 
ment of  a  receiver  under  a  statutory  provision  allowing  such  appointment  in  an 
action  by  a  stockholder  to  preserve  the  corporate  assets,  there  being  no  officer 
with  power  to  hold  such  assets.*' 

If  a  complaint  by  a  stockliolder,  after  alleging  a  fraudulent  disposition  of 
the  corporate  property,  prays  judgment  for  possession  of  tlie  property  or  for  its 
value  and  for  an  accounting,  a  demurrer  presents  no  question  as  to  the  right  to 
appoint  a  receiver.** 

§  15.  Management  of  corporations.  A.  Control  of  a  corporation  hy  the 
stocl-hoJders  or  members;  power  of  the  majority. — The  stockholders  may  agree 
in  the  by-laws  that  a  majority  action  of  the  shareholders  shall  be  binding  on  the 
corporation  and  on  them.*=  The  majority  stockholders  have  no  power  to  directly 
overrule  or  control  the  action  of  a  majority  of  the  board  of  directors  acting 
within  the  discretionary  powers  entrusted  to  them  as  agents  of  the  corporation; 
such  control  must  be  exercised  by  the  methods  pointed  out  by  the  by-laws  or 
charter  of  the  statute  under  which  it  is  organized.*® 

(§  15)  B.  Dealings  hetiveen  a  corporation  and  its  stocTcholders. — The  corpor- 
ate officers  must  not  show  partiality  in  conferring  benefits  on  certain  shareholders  to 
the  prejudice  of  the  shareholders  in  general  or  of  the  corporation.*^  An  agree- 
ment between  the  corporation  and  a  large  stockholder  to  compensate  him  for 
certain  services  in  placing  the  corporation  on  a  paying  basis  is  valid,  as  is  a  vote 
in  fulfillment  thereof  to  confer  on  him  five  per  cent  of  such  earnings  as  in  the 
future  should  become  applicable  to  the  payment  of  dividends.*^ 

(§  15)  C.  By-Jaws. — The  members  in  their  constitutent  character  at  a  gener- 
al meeting  of  the  corporation  should  enact  the  by-laws  in  the  absence  of  charter 
provisions  to  the  contrary.*®  Directors  camiot  by  by-law  be  given  the  exclusive  pow- 
er to  alter  or  amend  the  by-laws  though  it  may  be  provided  that  alterations  and 
amendments  shall  be  proposed  to  and  sanctioned  by  two-thirds'  vote  of  the  board.^** 
The  by-laws  of  a  corporation  duly  enacted  and  containing  no  provisions  contrary 
to  the  charter  or  the  laws  of  the  land  are  binding  on  its  members  and  presumed 
to  be  known  to  them,'*^  but  are  not  binding  on  third  persons  who  have  no  notice 
thereof." 


40.  Posner  v.  Southern  Exhaust  &  Blow 
Pipe  Co.,   109   La.   658. 

41.  Worth  Mfg.  Co.  V.  Bingham  (C.  C.  A.) 
116    Fed.   785. 

42.  Comp.  Laws.  ?  5015.  making  the 
grounds  for  an  appointment  of  a  receiver  In- 
solvency, or  immediate  danger  thereof,  dis- 
solution, qr  forfeiture  of  corporate  rights — 
Kelly  V.  l?argo  Mefcantile  Co.  (S.  D.)  91  N. 
W.   350. 

43.  Code  Civ.  Proc.  §  1810,  subd.  3 — Zelt- 
ner  v.  Henry  Zeltner  Brew.  Co.,  79  App.  Div. 
(N.  Y.)  136. 

44.  Tevis  v.  Hammersmith  (Ind.  App.)  66 
N.  E.  912. 


45.  Hodge  v.  United  States  Steel  Corp.  (N. 
J.  Law)   54  Atl.   1. 

46.  Gold  Bluff  Mining  &  Lumber  Corp.  v. 
Whitlock   (Conn.)   55  Atl.  174. 

47.  Davies  v.  Monroe  "Waterworks  &  Light 
Co..   107  La.  145. 

48.  Dupignac  v.  Burnstrom,  76  App.  Div. 
(N.  Y.)    105. 

49.  50.  Alters  v.  Journeymen  Bricklayers 
Protective  Ass'n,  19  Pa.  Super.  Ct.  272. 

51.  Purdy  V.  Bankers'  Life  Ass'n  (Mo 
App.)  74  S.  W.  486. 

52.  A  lender  is  not  affected  by  a  by-law 
requiring  corporate  notes  to  he  counter- 
signed by  the  treasurer  and  approved  by  two 
members    of   the    executive    committee — Lyn- 


§  ISE 


MEETINGS.     RIGHT  TO  VOTE. 


7bS 


A  book  containing  printed  by-laws  which  the  president  of  a  corporation  testi- 
fies is  the  only  evidence  of  the  by-laws  thereof,  there  being  no  set  of  by-laws 
copied  into  the  minutes  of  the  corporation,  which  he  has  ever  discovered  on 
examination,  may  be  admitted  in  evidence  as  showing  the  bj^-laws,  where  such  books 
have  been  used  and  recognized  generally  by  the  members.^^ 

Resolutions  of  a  corporation,  not  incorporated  in  the  by-laws,  may  be  revo- 
cable at  any  time.'* 

(§15)  D.  Corporate  meetings  and  elections.  Notice. — Defects  in  notices  of 
meetings  are  waived  by  presence  or  representation  of  stockholders  thereat,'^  such  as 
insufficient  particularity  as  to  the  business  to  be  transacted.^'  The  same  rule 
applies  to  directors'  meetings.*^ 

Evidence  as  to  meetings. — The  proceedings  of  a  stockholders'  meeting  may 
be  shown  by  the  evidence  of  a  witness  who  was  present."* 

Elections. — A  majority  of  the  corporation's  stock  is  necessary  to  an  election 
in  the  absence  of  other  provision.'*®  A  meeting  for  the  election  of  officers  cannot 
be  adjourned  by  a  declaration  of  one  of  the  officers.®"  Failure  to  file  a  report  of 
election  as  required  by  statute  justifies  the  conclusion  that  no  election  has  been 
made.®^  Production  of  the  list  of  stockholders  may  be  essential  to  a  valid  elec- 
tion." 

Wliere  such  inquiry  is  essential  to  a  proceeding  before  it,  the  court  may 
inquire  into  the  validity  of  an  election  of  corporate  officers  and  directors.®^  On  a 
bill  for  an  accounting  and  to  enjoin  one  acting  as  president  and  director  from 
exercising  powers  as  such,  the  right  of  defendant  to  the  office  may  be  determined 
by  a  court  of  equity,  bill  being  brought  by  the  stockholder  on  behalf  of  the  cor- 
poration.®* 

(§  15)  E.  The  right  to  vote. — Unless  otherwise  provided  by  the  organic  law 
of  the  corporation,  the  right  of  a  stockholder  to  vote  on  his  stock  at  all  meetings  of 
the  shareholders  is  a  right  inherent  to  the  ownership  of  shares  and  as  such  is  a  prop- 
erty right.*'     The  holder  of  stock  may  vote  it  before  he  has  paid  it  in  full."® 


don   Sav.   Bank   v.   International  Co.    (Vt.)    54 
Atl.    191. 

53.  Star  Loan  Ass'n  v.  Moore  (Del.  Super.) 
55  Atl.  946. 

54.  Resolution  that  only  citizens  may  be 
trustees — Sorrentino  v.  Cilettl,  75  App.  Div. 
(N.  Y.)   507. 

55.  Tompkins  v.  Sperry,  Jones  &  Co.,  96 
Md.   560. 

56.  Synnott  v.  Cumberland  Bldg.  Loan 
Ass'n  (C.  C.  A.)  117  Fed.  379.  Insufficient 
particularity  in  a  call  for  a  special  meeting, 
in  stating  the  purpose  to  be  to  amend  the 
bj'-laws  by  chang-ing-  the  date  of  the  annual 
meeting,  is  not  a  sufficient  ground  for  an  in- 
junction against  stockholders  voting  to  elect 
additional  directors  before  the  next  annual 
meeting  or  making  any  change  in  the  by- 
laws without  having  given  legal  notice  to 
the  stockholders,  since  an  insufficiency  of 
notice  would  not  prevent  the  making  of  the 
proposed  change,  all  the  stockholders  being 
present  and  voting,  and  since  a  proper  no- 
tice of  another  meeting  may  be  given  after 
the  hearing  on  injunction  proceedings.  Gen. 
St.  1902,  §  3366 — Gold  BlufC  Mining  &  Lumber 
Corp.  v.  Whitlock  (Conn.)   55  Atl.  174. 

57.  Where  the  directors  are  all  present  at 
a  meeting  at  which  a  mortgage  Is  authorized, 
such  presence  obviates  the  necessity  of  a 
previous  notice,   though  the  president  is  ab- 


.?ent  but  the  mortgage  Is  executed  by  him — 
Wolf  &  Bro.  v.  Erwin  &  Wood  Co.  (Ark.)  75 
S.  W.  722. 

58.  Especially  where  the  minute  book  is 
lost — Blanton  v.  Kentucky  Distilleries  & 
Warehouse  Co.,  120  Fed.  31S. 

59.  Haskell  v.   Read    (Neb.)    93  N.  W.    997. 

60.  The  validity  of  an  election  cannot  be 
affected  in  such  manner — Chicago  Macaroni 
Mfg.  Co.  V.  Boggiano,  202  111.  312. 

61.  Provision  for  report  annually  within 
30  days  after  election.  P.  L.  1896,  c.  185,  §§ 
43,  12 — Appleton  v.  American  Malting  Co.  (N. 
J.  L.)   54  Atl.  454. 

62.  A  new  election  of  directors  will  be  or- 
dered, where  the  production  of  the  books 
showing  the  names  of  stockholders  w^as  re- 
quired by  petitioners,  but  defendant  direct- 
ors who  were  re-elected  did  not  understand 
that  their  production  was  insisted  on  until 
after  the  election  was  held.  (Proceedings  un" 
der  Corporation  Act,  §  42,  P.  L.  1896,  p.  291) 
— In  re  Jersey  City  Paper  Co.  (N.  J.  L.)  55 
Atl.   280. 

63.  Haskell  v.   Read   (Neb.)    93  N.  W.    997. 

64.  Chicago  Macaroni  Mfg.  Co.  v.  Boggi- 
ano. 202  111.  312. 

65.  Talbot  J.  Taylor  &  Co.  v.  Southern 
Pac.  Co..  122  Fed.  147. 

66.  Haskell   v.   Read    (Neb.)    93  N.   W.   997, 


•66 


CORPORATIONS. 


§   15E 


Directors  who  own  stock  may  vote  at  stockholders'  meetings.*'  A  corporation 
cannot  make  arrangements  for  elections  of  officers  in  such  manner  as  to  deprive 
stockliolders  of  votes  for  each  share  of  stock  held  by  them.*®  A  stockholder  may 
vote  on  measures  in  which  he  has  personal  interests  adverse  to  other  stockhold- 
ers, since  he  is  not  to  be  regarded  as  a  trustee  for  the  other  stockholders,  so  a  cor- 
poration holding  the  common  stock  of  another  corporation  may  vote  it  in  favor  of 
dissolution  of  such  corporation  though  it  has  guaranteed  payment  of  dividends  on 
the  preferred  stock  of  such  corporation  so  long  as  it  should  exist.*'' 

Injunction  against  voting  of  stocTc. — In  order  that  the  right  of  shareholders 
to  vote  be  denied,  it  must  be  on  the  ground  that  shares  have  been  illegally  issued 
or  that  the  holder  is  incapacitated  by  law,  public  policy  will  be  offended  or  that 
property  rights  of  minority  holders  will  be  thereby  so  seriously  placed  in  jeopardy 
as  to  justify  a  court  of  equity  in  allowing  the  minority  to  be  placed  in  control.'" 
Where  there  is  an  attempt  to  vote  shares  issued  in  excess  of  the  authorized  capital 
stock,  it  may  be  enjoined  by  a  stockholder,  and  the  shares,  if  issued  without  con- 
sideration, canceled.''^  A  corporation  which  owns  the  stock  of  another  corpora- 
tion is  a  necessary  party  to  a  proceeding  for  an  injunction  to  prevent  the  voting 
of  the  shares  of  stock  held  by  it  at  an  election  for  directors.^^ 

Wliere  the  stock  stands  in  the  name  of  an  individual,  though  beneficially 
owned  by  a  corporation,  the  fact  that  such  individual  files  an  affidavit  in  the  case 
does  not  amount  to  an  appearance  in  behalf  of  the  beneficial  owner,  the  affidavit 
being  filed  apparently  and  presumably  at  the  instance  of  defendant.''*  A  stock- 
holder is  not  made  a  party  by  representation  by  the  fact  that  the  corporation  is 
a  party  to  a  suit  to  enjoin  the  voting  of  the  stock  held  by  him  for  the  election  of 
directors,  though  such  stockholder  is  a  corporation  whose  directors  and  officers 
constitute  a  majority  of  the  directors  and  officers  of  both  companies.^*  The  pro- 
ceeding will  not  be  restrained  in  order  to  allow  the  owner  of  the  stock  to  be 
impleaded  in  a  forum  having  jurisdiction  over  it,  since  to  continue  the  stay  order 
for  such  purpose  would  be  in  effect  to  dispose  of  the  litigation.''^ 

Cumulative  voting. — Where  by  statute  cimiulative  voting  of  stock  is  author- 
ized, the  court  cannot  control  the  manner  in  which  the  stockholder  causes  his 
shares  to  be  voted  or  examine  his  motives.'®  Where  a  corporation  organized 
before  a  statute  preventing  cumulative  voting  has  acquired  benefits  thereunder  by 
obtaining  new  franchises,  its  members  may  vote  cumulatively  for  directors.''^ 

Pledged  stock. — Where  stock  has  been  pledged,  the  pledgor  retains  the  right 
to  vote  until  foreclosure,  as  a  general  rule,  and  a  voting  of  pledged  shares  by  the 
pledgee  against  the  rights  of  the  pledgor  may  be  enjoined,  though  in  conducting 
the  election,  the  officers  of  the  corporation  may  rely  on  the  corporate  books.'* 

Stoch  held  hy  trustee. — Where  stock  of  a  railroad  has  been  deposited  with  a 
trustee  and  the  depositor  reserves  the  right  to  vote  it,  the  depositor  may  secure  a 
proxy  from  the  trustee  to  vote  the  stock  for  a  merger,  though  in  case  the  merger 


67.  Hodge  v.  United  States  Steel  Corp.  (N. 
J.  L.)  54  Atl.  1. 

68.  Burns'  Rev.  St.  1901,  §  3425 — State  ex 
rel.  Ross  v.  Anderson  (Ind.  App.)  67  N.  E. 
207. 

69.  "WlndmuUer  v.  Standard  Distilling  & 
Distributing  Co.,  114  Fed.  491. 

70.  Talbot  J.  Taylor  &  Co.  v.  Southern 
Pac.  Co.,  122  Fed.  147. 

71.  Haskell  v.   Read    (Neb.)    93  N.  W.   997. 

72.  73.  Talbot  J.  Taylor  &  Co.  v.  Southern 
Pac  Co.,  122  Fed.  147. 


74.  Talbot  J.  Taylor  &  Co.  v.  Southern 
Pac.  Co.,  122  Fed.  147. 

75.  Talbot  J.  Taylor  &  Co.  v.  Southern 
Pac.  Co.,  122  Fed.  147. 

76.  1  Starr  &  C.  Ann.  Sts.  1896,  p.  990,  c. 
32,  §  3 — Chicago  Macaroni  Mfg.  Co.  v.  Bog- 
giano,  202  111.  312. 

77.  Literary  institute  incorporated  before 
the  right  conferred  by  constitution  1S74,  art. 
16,  §  4 — Commonwealth  v.  Flannery,  203  Pa. 
28. 

78.  Haskell  v.   Read    (Neb.)    93   N.   W.   997. 


§  15F 


VOTING  TRUSTS.  ELECTION  OF  OFFICERS. 


767 


is  effected,  the  trustee  will  receive  back  not  the  original  stock,  but  stock  in  the 
consolidated  company.'^* 

Proxies. — Where  before  attempting  to  repudiate  the  action  of  a  proxy  a  stock- 
holder allows  a  year  to  elapse,  his  laches  prevents  him  from  relief.^" 

Voting  trusts. — The  establishment  of  a  voting  trust  is  analogous  to  the  giv- 
ing of  proxies.  It  is,  under  the  law  of  New  Jersey,  prima  facie  unlawful  but 
may  be  rendered  lawful  by  the  circumstances.  An  arrangement,  however,  by 
which  majority  stockholders  exclude  themselves  irrevocably  from  the  manage- 
ment of  the  corporation  for  a  fixed  period  is  against  public  policy  and  may  be 
abrogated  by  the  other  stockholders,  who  are  entitled  to  the  right  to  have  the 
individual  judgment  of  all  the  stockholders  exercised.®^  If  consent  to  a  trust 
agreement  is  procured  in  such  a  manner  as  to  deprive  those  entering  into  it  of  an 
opportunity  for  deliberation  and  by  means  of  a  threatened  forfeiture  of  all  rights, 
it  is  to  be  construed  strongly  against  the  donees  of  the  power  and  such  donees  can- 
not assert  that  a  deed  poll  evidencing  the  terms  of  the  trust  has  become  binding 
on  the  stockholders  through  acquiescence,  where  such  donees  have  made  no  expendi- 
tures or  entered  into  obligations  entailing  a  loss  on  them  should  the  trust  be 
abrogated,  nor  can  such  acquiescence  be  asserted  as  against  transferees  of  the 
stockliolders.*^  In  case  the  trust  power  makes  no  provision  for  the  conduct  of 
the  trustee,  he  will  be  boimd  to  vote  in  accordance  with  the  expressed  wishes  of 
the  cestui  que  trust.®^ 

(§  15)  F.  Appointment  and  election  of  officers. — Though  the  law  provides 
that  trustees  of  a  corporation  must  be  stockholders,  three  incorporators  who  are  the 
ohly  stockholders  cannot  be  presumed  to  be  the  trustees.** 

Until  judicial  determination  of  a  dispute  as  to  the  right  to  occupy  an  office,  the 
incumbent  will  not  be  dispossessed,  if  he  is  in  possession  and  performing  the  duties 
under  a  bona  fide  claim  of  right.*" 

Tenure  of  officers. — Directors  hold  over  until  the  election  and  qualification  of 
successors,*®  but  where,  for  the  sake  of  perpetuating  themselves  in  office,  the  direc- 
tors and  officers  of  a  corporation  refuse  to  give  notice  of  a  stockholders'  meeting 
and  secure  an  injunction  against  the  holding  of  a  meeting  by  the  stockholders,  the 
stockholders  may  on  a  cross  bill  secure  an  order  for  an  election  to  be  had  at  a  stock- 
holders' meeting  held  under  the  control  of  a  master  in  chancery  appointed  for  such 
purpose.*''  Where  annual  elections  are  required  by  statute,  the  articles  of  incor- 
poration cannot  provide  for  indeterminate  terms  of  office.**     Where  the  stock- 


79.  Pennsylvania  R.  Co.  v.  Pennsylvania 
Co.  for  Ins.  on  Lives  &  Granting  Annuities. 
205   Pa.   219. 

80.  A  stockholder  must  exercise  the  most 
active  diligence  in  repudiating  the  act  of  his 
proxy — Synnott  v.  Cumberland  Bldg.  Loan 
Ass'n  (C.  C.  A.)  117  Fed.  379. 

81.  In  the  case  of  a  corporation  composed 
of  American  and  English  stockliolders,  the 
American  stockholders  of  which  have  been 
pledged  that  they  shall  stand  on  an  equal 
footing  with  the  foreign  stockholders  and 
whose  directors  are  Americans,  the  Ameri- 
can stockholders  may  object  to  a  voting 
trust  formed  by  the  foreign  stockholders 
which  confers  on  the  trustees  the  power  of 
voting  the  stock  for  fifty  years,  such  power 
being  irrevocable  save  by  vote  of  three- 
fourths  of  the  foreign  stock,  thus  allowing 
the  trustees  by  the  control  of  one-seventh 
of  the  entire  stock  to  vote  three-fifths  there- 
of and  depriving  the  American  directors  and 
stockholders   of  the  benefit   of  the  judgment 


of  about  one-half  of  the  stockliolders  of  the 
corporation — Warren  v.  Pim  (N.  J.  Eq.)  55 
Atl.    66. 

83.     Warren  v.  Pim    (N.  J.  Eq.)    55  Atl.   66. 

83.  The  donees  are  not  authorized  to  make 
an  arrangement  whereby  their  powers  will 
become  irrevocable  and  not  subject  to  con- 
trol for  a  term  of  fifty  years — Warren  v. 
Pim   (N.  J.  Eq.)  55  Atl.  66. 

84.  Grand  Rapids  School  Furniture  Co.  v. 
Grand  Hotel  &  Opera  House  Co.  (Wyo.)  72 
Pac.   687. 

85.  Standard  Gold  Mln.  Co.  v.  Byers,  31 
Wash.   100.   71   Pac.   766. 

86.  Hatch  V.  Mining  Co.,  25  Utah,  405,  71 
Pac.  865. 

87.  Bartlett  v.  Gates,  118  Fed.  66;  Gates  v. 
Bartlett,  Id. 

88.  Under  Burns  Rev.  St.  §§  3425,  5051, 
5054,  5055,  a  corporation  cannot  by  its  ar- 
ticles provide  that  certain  persons  sliall  act 
as  directors,  until  they  are  incapacitated,  re- 
sign or  die,  and  that  a  certain  person   shall 


7b« 


CORPORATIONS. 


§    15G 


holders  may  by  by-laws  fix  the  time  when  directors  shall  be  annually  chosen,  may 
alter  or  repeal  by-laws  previously  adopted,  and  may  appoint  more  than  three  direc- 
tors, the  stockholders  may,  at  a  special  meeting,  amend  the  by-laws  so  as  to  increase 
the  number  of  directors  from  three  to  five,  and  on  the  adoption  of  such  amend- 
ment have  the  additional  directors  immediately  appointed,  and  such  an  action  does 
not  infringe  the  statutory  requirement  that  directors  shall  be  chosen  annually,  nor  is 
the  choice  the  filling  of  a  vacancy  resting  in  the  power  of  the  directors.'^ 

Resignation  and  removal. — Acceptance  of  an  officer's  resignation  is  not  essential 
to  "-ive  it  effect.^"  One  who  after  his  election  as  trustee  resigns  cannot  be  declared 
a  trustee."  Wlien  the  resignation  of  a  corporation's  president  is  demanded,  he  is 
entitled  to  insist  that  his  stock  be  purchased.^^  There  is  a  presumption  that  a 
member  and  officer  has  knowledge  that  under  the  by-laws  of  the  corporation  the 
board  of  directors  may  discharge  an  officer  for  cause,  and  in  an  action  by  a  vice- 
president  for  his  salary,  he  cannot  secure  a  review  of  the  action  of  the  board  of  di- 
rectors in  discharging  him  for  cause.®^ 

(§  15)  G.  Salary  or  other  compensation  of  officers. — A  contract  to  pay  a  di- 
rector or  officer  of  a  corporation  will  not  be  implied  as  against  the  corporation.®* 
For  ordinary  services  an  officer  is  not  entitled  to  compensation  imless  so  provided  by 
the  board  of  directors,  though  he  may  recover  for  services  not  incidental  to  the  of- 
fice,^^  as  where  performed  at  the  request  of  other  officers,®^  so  on  an  action  on  a  con- 
tract of  emplovment  as  vice-president,  plaintiff  may  show  that  he  was  intended  to 
perform  additional  services.''^  An  officer  cannot  have  compensation  for  extra  serv- 
ices after  he  has  been  notified  not  to  render  them.^^  It  is  not  in  the  power  of  di- 
rectors to  fix  their  own  salaries,  and  in  case  of  an  attempt  to  do  so  they  can  be 
allowed  only  the  true  value  of  their  services,  which  they  must  establish.^^  A  resolu- 
tion increasing  an  officer's  salary  carried  only  with  the  aid  of  his  vote  is  invalid, 
so  if  the  president  takes  part  in  the  proceedings  and  his  vote  is  essential,  a  larger 
salary  or  bonus  in  addition  to  salary  cannot  be  voted  to  him.^  A  salary  illegally 
paid  a  director  or  officer,  is  to  be  treated  as  a  fund  from  vrhich  a  dividend  may  be 
declared.^  If  the  officer  waive  a  salary,  he  cannot  afterward  claim  it  on  the  ground 
that  another  officer  has  violated  a  similar  agreement.'  Voluntary  acceptance  of  a 
sura  as  salary  for  several  years  may  prevent  the  claim  of  a  greater  sum  as  due  for 
such  period.*     One  incorporator  may  recover  for  his  services,  though  the  incor- 


be  vice-president  and  bookkeeper  until  the 
happening  of  the  same  contingencies  or  until 
she  ceases  to  be  a  stockholder — State  ex  rel. 
Ross  V.  Anderson  (Ind.  App.)  67  N.  E.  207. 
SO.  Gen.  St.  1902.  §  3366 — Gold  Bluff  Min- 
ing &  Lumber  Corp.  v.  Whitlock  (Conn.)  55 
Atl.  174. 

90.  Zeltner  v.  Henry  Zeltner  Brewing  Co., 
79  App.  Div.   (N.  Y.)   136. 

91.  Sorrentino  v.  Ciletti.  75  App.  Div.  (N. 
Y.)   507. 

92.  Joseph  V.  Raff,  82  App.  Div.  (N.  Y.) 
47. 

93.  Discharge  on  account  of  having  dis- 
posed of  all  his  stock — Selley  v.  American 
Lubricator  Co.    (Iowa)    93  N.  W.  590. 

94.  Alston  Mfg.  Co.  V.  Squair,  105  111.  App. 
238. 

95.  Chicago  Macaroni  Mfg.  Co.  v.  Boggi- 
ano.  202  111.  312.  President  not  entitled. 
Code  1899,  c.  53.  §  53 — Maxon's  Adm'x  v.  Max- 
on-Miller  Co.  (W.  Va.)  44  S.  E.  131.  Evi- 
dence held  insufflcient  to  show  an  implied 
promise    to   pay   vice-president    of    an    insur- 


ance company  for  services  outside  of  his  reg- 
ular duties — Stout  v.  Security  Trust  &  Life 
Ins.  Co..  SI  N.  Y.  Supp.  70S. 

96.  Baines  v.  Coos  Bay  Nav.  Co.,  41  Or. 
135,   68   Pac.   397. 

97.  The  by-laws  provided  that  the  board 
of  directors  might  fix  the  compensation  for 
its  officers  and  employes'  services — Selley  v. 
American  Lubricator  Co.  (Iowa)  93  N.  "W. 
590. 

98.  Chicago  Macaroni  Mfg.  Co.  v.  Boggl- 
ano,   202  111.   312. 

99.  Facts  held  Insufflcient  to  warrant  a 
salary  of  $96  a  week  in  addition  to  a  salary 
of  $5,000  a  year  to  the  manager  of  a  wall 
paper  concern  and  $5,000  a  year  to  the  presi- 
dent, vice-president  and  secretary  of  the 
same — Davis  v.  Thomas  A.  Davis  Co.,  63  N.  J. 
Eq.  572. 

1,  2.     Adams  v.  Burke,  102  111.  App.  148. 

3.  Ryan  v.  Paciflc  Axle  Co.,  136  Cal.  xx., 
•58   Pac.    498. 

4.  Home  Fire  Ins.  Co.  v.  Barber  (Neb.)  9$ 
X.  W.  1024. 


DIRBUTOKS'  MEETINGS.     POWERS   OF  DIRECTORS. 


769 


porators  have  entered  into  a  mutual  agreement  whereby  an  unissued  portion  of 
the  company's  stock  should  be  divided  among  them,  in  consideration  of  their  re- 
spective services  to  each  other;"  but  where  two  persons  equally  interested  in  the 
stock  of  a  corporation,  and  holding  its  entire  stock,  devote  their  entire  time  to 
business,  neither  is  entitled  to  compensation,  each  withdrawing  equal  sums.® 

Where  an  officer  is  to  give  his  individual  attention  to  the  business  of  the  com- 
pany, he  cannot  recover  salary  during  a  time  when,  by  illness,  he  is  prevented  from 
performing  his  duties.'^  A  business  man  who  undertakes  to  make  the  affairs 
of  a  corporation  his  business  and  to  give  it  his  full  time  does  not  absolutely  ex- 
clude himself  from  everything  else.* 

Officers  who  do  not  live  at  the  principal  office  of  the  corporation  are  not 
entitled  to  traveling  expenses." 

Where  an  officer  is  acting  as  officer  of  a  corporation  and  also  as  a  trustee  for  its 
creditors  and  the  funds  of  the  corporation  and  of  the  trust  are  mingled  with 
consent  of  those  interested,  he  may  apply  the  common  fund  to  the  payment  of  his 
salaries  in  both  capacities.^" 

(§15)  H.  How  directors  must  act;  directors'  meetings. — Directors  cannot 
act  by  proxy.^^  A  directors'  meeting  at  which  but  one  director  is  present  who  votes 
the  proxy  of  another  director  and  his  own  vote  will  not  warrant  the  authorization  of 
the  executor  of  a  trust  deed  where  such  authorization  must  be  at  a  regular  meeting 
and  by  a  majority  of  the  directors.^^ 

Where  the  entire  board  of  directors  act,  though  informally,  it  cannot  be 
contended  that  they  acted  merely  as  individuals,^^  so  if  there  is  assent  of  all  the 
directors,  the  corporation  may  execute  a  written  contract  without  a  formal  vote  or 
written  entry.^* 

A  directors'  meeting  is  not  regularly  called  where  there  is  no  notice  to  or 
effort  to  notify  one  of  the  directors.^^ 

An  action  by  a  board  of  directors  cannot  be  shown  by  a  declaration  of  the 
president  nor  will  such  a  declaration  made  at  a  meeting  of  the  corporate  trustees 
show  an  estoppel  as  against  the  corporation.^" 

(§15)  /.  Power  of  corporations  to  act  through  stockholders . — Two  stock- 
holders who  have  actual  management  of  affairs  of  corporation  may,  with  the  ratifica- 
tion of  the  corporation,  make  a  valid  compromise  of  a  claim.^^ 

(§  15)  J.  Powers  of  the  directors  or  trustees. — In  the  absence  of  express  au- 
thority and  such  a  course  of  dealing  as  clearly  implies  authority  to  do  the  contro- 
verted act,  the  corporation  can  be  bound  only  by  its  board  of  directors.  The  power 
of  making  or  refusing  to  make  contracts  on  behalf  of  the  corporation  rests  prima 
facie  in  the  board  of  directors.^*     The  resignation  of  a  corporation's  president 


5.  Wlltbank  v.  Automatic  Amusement 
Mach.  Co.   (N.  J.  L.)   54  Atl.  558. 

6.  Chicago  Macaroni  Mfg.  Co.  v.  Boggl- 
ano.  202  111.  312. 

7.  Raley  v.  Victor  Co..  86  Minn.  438. 

8.  Acts  of  a  corporate  president  in  re- 
gard to  private  Investments  in  acting  as  ad- 
ministrator of  a  relative's  estate  and  on  the 
board  of  directors  of  a  bank  held  not  to  sup- 
port a  counterclaim  against  his  action  for 
salary — Johnson  v.  Stoughton  Wagon  Co. 
(Wis.)  95  N.  W.  394. 

9.  Davies  v.  Monroe  Waterworks  &  Light 
Co.,  107  La.   145. 

10.  Rocky  Mountain  Oil  Co.  v.  Phillips,  29 
Colo.   268,   68  Pac.   269. 

11.  Director's  wife  has  no  power  to  rep- 


resent   him — State    v.    Perkins,    90    Mo.    App. 
603. 

12.  First  Nat.  Bank  v.  East  Omaha  Box 
Co.    (Neb.)    90  N.  W.   223. 

13.  Three  or  four  trustees  purchased  land, 
the  fourth  having  knowledge  of  the  purchase 
— Anderson  v.  Wallace  Mfg.  Co.,  30  Wash. 
147,  70   Pac.   247. 

14.  Indiana  Bermudez  Asphalt  Co.  v.  Rob- 
inson, 29  Ind.  App.  59. 

15.  State  v.  Perkins,  90  Mo.  App.  603. 

16.  Childs  V.   Ponder   (Ga.)    43   S.  E.   986. 

17.  W.  F.  Taylor  Co.  v.  Baines  Grocery 
Co.    (Tex.  Civ.  App.)    72  S.  W.   260. 

18.  Rev.  St.  §  3248,  requires  the  corporate 
power,  business  and  control  of  a  corporation 
to  be  exercised  primarily  by  its  board  of  dl- 


Cur.  Law — 49. 


770 


CORPORATIONS. 


§  15K 


may  bo  secured  by  the  directors  and  they  have  the  power,  if  the  corporation  is 
not  insolvent,  to  pay  him  his  back  salar}-,  purchase  his  stock,  and  give  him  an 
additional  sum  as  liquidated  damages  in  consideration  of  the  resignation.  Neither 
the  corporation  nor  those  who  become  creditors  may  rescind  such  a  transaction  on  its 
insolvency.^" 

(§  15)  K.  Powers  of  other  officers  and  agents  than  the  directors  or  trustees. 
— The  presumption  is  that  acts  done  by  a  corporate  officer  in  the  scope  of  his  duties 
are  binding.^**  Where  there  is  no  express  or  implied  power  to  its  officers  to  contract, 
the  corporation  can  contract  only  by  authority  of  its  directors.-^  An  agreement 
by  a  corporation  to  pay  the  debts  of  another  corporation  which  it  had  absorbed 
cannot  be  shown  by  the  statements  of  its  officers,^^  unless  the  corporation  has  knowl- 
edge thereof.^^  Without  special  authority,  corporate  officers  cannot  execute  accom- 
modation paper  in  the  name  of  the  corporation.^*  Authority  to  perform  a  specific 
act  carries  with  it  authority  to  do  those  things  necessary  to  effect  it.^^ 

The  president  does-  not  ex  officio  have  authority  to  contract,  though  to  confer 
such  power  positive  act  of  the  directors  is  not  indispensable,  and  the  fact  that 
he  generally  acts  as  a  general  agent  is  of  weight  in  determinmg  his  authority.^" 
Wliere  acting  within  the  authority  conferred  by  the  by-laws,  the  action  of  a 
corporation's  president  is  conclusive  until  revoked  by  the  directors.-^  Where  the 
management  of  corporate  affairs  is  placed  in  his  hands,  he  may  execute  a  release 
of  a  contract  which  he  has  entered  into.^*  He  may  employ  experts  in  connection 
with  litigation,^^  or  a  physician  to  attend  on  employe,  hurt  in  the  course  of  his 
work  through  the  negligence  of  the  corporation.^"  The  power  to  mortgage  the 
corporate  property  is  not  incidental  to  his  office,^^  and  a  deed  of  trust  executed 
without  authority  may  be  avoided  by  creditors.^-  Authority  to  execute  a  mort- 
gage does  not  confer  authority  to  create  liens  in  addition  thereto.^^  There  is 
a  presumption  that  the  president  and  secretary  of  a  corporation  have  authority 
to  execute  a  chattel  mortgage.^* 


rectors — Bradford   Belting   Co.   v.   Gibson,    68 
Ohio  St.  442. 

19.  Joseph  V.  Raff.  82  App.  Div.  (N.  Y.) 
47. 

20.  Chicago  Pneumatic  Tool  Co.  v.  H.  W. 
Johns  Mfg.  Co.,  101  111.  App.  349. 

21.  St.  Clair  v.  Rutledge.  115  Wis.  583. 

22.  Central  Elec.  Co.  v.  Sprague  Elec.  Co. 
(C.  C.  A.)   120  Fed.  925. 

23.  Where  by  foreclosure  a  corporation 
becomes  the  owner  of  the  property  of  an- 
other corporation,  it  may  be  bound  by  a 
promise  of  its  president  to  pay  advances 
made  by  the  old  corporation  to  one  of  its 
selling  agents  if  it  has  knowledge  that  the 
liability  for  advances  was  assumed,  derived 
from  persons  other  than  the  president — Cur- 
tis V.  Natalie  Anthracite  Coal  Co.,  39  Misc. 
(N.  Y.)   586. 

24.  Pelton  v.  Spider  Lake  Saw  Mill  & 
Lumber  Co.  (Wis.)  94  N.  W.  293.  The  ques- 
tion of  the  purpose  of  the  Indorsement  by  a 
corporation's  officer  after  maturity  of  a  note 
is  for  the  jury — Lyndon  Sav.  Bank  v.  Inter- 
national Co.  (Vt.)  54  Atl.  191.  Evidence  held 
to  show  that  a  signature  was  as  accommo- 
dation indorser  not  rendering  the  corpora- 
tion liable — Preston  v.  North  AYestern  Cereal 
Co.  (Neb.)  93  N.  W.  136.  Evidence  held  to 
show  that  the  proceeds  of  a  note  on  which  a 
corporation  was  an  accommodation  indorser, 
were  used  for  Its  benefit,  rendering  It  liable 


— Orvis  V.  H.  H.  Warner  &  Co.,  75  App.  Div. 

(N.  Y.)    463. 

25.  Authority  to  sell  property  carries 
right  to  employ  broker — Henderson  V.  Ray- 
mond Syndicate  (Mass.)  67  N.  E.  427:  Hart- 
ford &  N.  Y.  Transp.  Co.  v.  Plymer  (C.  C.  A.  i 
120  Fed.   624. 

26.  St.  Clair  v.  Rutledge,   115  Wis.   583. 

27.  Act  of  the  president  of  a  mercantile 
norporation  in  joining  in  a  petition  for  in- 
voluntary bankruptcy  is  conclusive  under  a 
bill  conferring  the  management  of  the  busi- 
ness on  the  president  and  authorizing  him  to 
fix  tlie  time  of  credit  and  to  adjust  and  set- 
tle all  claims — In  re  Winston,  122  Fed.  187. 

28.  Louisville  &  N.  R.  Co.  v.  Dickey,  24 
Ky.  L.  R.  1710,  72  S.  W.  332. 

29.  A  sub-way  company  may  employ  an 
expert  in  a  litigation  whereby  a  telephone 
company  seeks  to  restrain  an  action  under 
an  ordinance  requiring  it  to  place  its  wires 
in  the  sub-way — Rosewater  v.  Glen  Tele- 
phone Co.,  81  App.  Div.   (N.  Y.)   275. 

30.  President  and  general  manager  of 
mining  corporation — Evans  v.  Marion  Min. 
Co.   (Mo.)   75  S.  W.  178. 

31.  32.     State  v.  Perkins,  90  Mo.  App.  603. 

33.  Bangor  &  P.  Ry.  Co.  v.  American  Ban- 
gor Slate  Co.,  203  Pa.  6. 

34.  Burkamp  v.  Healey,  24  Ky.  L.  R.  1926, 
72  S.  W.  759. 


8  15K 


POWERS  OF  PARTICULAR  OFFICERS. 


If  sale  of  mining  property  by  a  mining  corporation  is  prohibited  by  statute, 
unless  authorized  by  a  vote  of  two-thirds  of  the  entire  body  of  stockholders,  an 
offer  to  sell  made  by  the  president  and  a  promise  to  obtain  consent  of  stockholders, 
which  is  accepted  by  the  purchaser,  confers  no  equitable  title  to  the  right  to  ex- 
tract ore  from  the  mine.^' 

The  grantor  of  a  deed  cannot,  as  against  an  assignment  for  creditors,  make  a 
sufficient  delivery  to  himself  as  president  of  a  corporation,  in  the  absence  of  any 
knowledge  of  other  officers  of  the  corporation,  or  of  any  persons  except  himself 
and  his  wife.^^ 

Tlie  vice-president  cannot  without  authorization  of  the  directors  execute  a 
valid  assignment  for  the  benefit  of  creditors.^'  He  may,  in  good  faith,  waive  a  ci- 
tation of  the  corporation,  unless  an  interested  party,  such  as  agent  for  plaintiff.^" 
He  may  rent  a  building  for  storage  of  property  belonging  to  the  department 
of  which  he  is  the  manager,^"  or  may  employ  a  physician  to  render  services  to  an 
employe,*"  or  an  attorney  for  the  corporation  where  he  is  acting  as  president  after 
resignation  of  that  officer,** 

The  secretary  of  a  corporation  cannot  release,  sell,  or  convey  its  property  in 
the  absence  of  authority,  express  or  implied,  and  with  no  authorization  or  ratifica- 
tion by  its  board  of  directors.*^  He  has  no  implied  authority  to  satisfy  a  judgment 
on  real  estate  for  anything  but  a  money  payment.*^  His  act  in  certifying  that  a 
resolution  has  been  passed  by  the  directors  may  be  binding  on  the  corporation 
if  he  has  been  allowed  to  manage  the  corporation  business.**  Before  a  note  indorsed 
by  the  corporation's  secretary  may  be  admitted  in  an  action  against  it,  authority 
of  the  secretary  to  execute  the  indorsement  must  be  established,*^  but  on  a  showing 
of  such  authority  the  burden  of  showing  the  contrary  is  on  the  corporation.*' 
Where  there  is  a  custom  to  such  effect,  indorsement  by  the  secretary  and  treasurer 
may  be  regarded  as  the  corporation's  indorsement.*^ 

The  treasurer  who  has  been  entrusted  with  the  actual  management  of  financial 
affairs,  and  has  attended  to  all  the  business  of  the  corporation  after  it  ceased 
active  operation,  may  bind  it  by  the  extension  of  a  note.*^  A  vote  to  issue  bonds 
for  the  improvement  of  corporate  property  to  a  specified  sum  may  authorize  the 
execution  of  a  receipt  and  promise  to  repay  a  sum  received  and  used  by  the 
treasurer  for  that  purpose.**  The  mere  fact  that  a  person  is  treasurer  of  a  cor- 
poration does  not  give  him  authority  to  bind  it  for  debts  which  it  has  not  con- 
tracted.^" 

The  cashier  of  a  bank  cannot  take  an  acknowledgment  of  a  mortgage  to  se- 


as. Anaconda  Copper  Min.  Co.  v.  Heinze. 
27  Mont.  161,  69  Pac.  909. 

36.  Taylor  v.  Seiter.  199  111.  555. 

37.  Such  an  assignment  "will  not  cut  off 
the  lien  of  an  execution  on  a  judgment  en- 
tered on  the  same  day — Lesher  v.  Friedman, 
99  III.  App.  42. 

38.  As  where  a  vendor's  lien  is  sought  to 
be  enforced  against  land  not  worth  more 
than  the  lien — Fox  v.  Robbins  (Tex.  Civ. 
App.)   70  S.  W.  597. 

39.  Drew  v.  Billings-Drew  Co.  (Mich.)  92 
N.  W.  774. 

40.  Hasler  v.  Ozark  Land  &  Lumber  Co. 
(Mo.)   74   S.  W.   465. 

41.  Appearance  by  an  attorney  so  em- 
ployed is  binding  on  the  corporation — Fer- 
nald  V.  Spokane  &  British  Telephone  &  Tele- 
graph Co.,  31  Wash.  672,  72  Pac.   462. 

42.  California  W^ine  Makers  Corp.  v.  Soia- 
roni  (Cal.)  72  Pac.  990. 


43.  Good  Hope  Bldg.  Ass'n  v.  Amweg,  22 
Pa.  Super.  Ct.  145. 

44.  Certification  of  resolution  for  the  exe- 
cution of  a  bond  and  assignment  of  assets  as 
security — Hutchison  v.  Rock  Hill  Real  Estate 
&  Loan  Co.,   65  S.  C.   45. 

45.  Karsch  v.  Pottiere  &  Stymus  Mfg.  & 
Imp.  Co.,  82  App.  Div.  (N.  Y.)  230.  Evidence 
held  sufficient  to  show  authority  of  the  sec- 
retary of  a  coal  corporation  to  endorse  com- 
mercial paper — People's  Sav.  Bank  v.  Hine 
(Mich.)   91  N.  W.  130. 

46.  Karsch  v.  Pottiere  &  Stymus  Mfg.  & 
Imp.  Co.,  82  App.  Div.   (N.  Y.)   230. 

47.  Black  V.   First  Nat.   Bank,   96  Md.  399. 

48.  Franklin  Sav.  Bank  v.  Cochrane,  182 
Mass.  586. 

49.  Jacobs  V.  German  Workingman's 
Ass'n,   183  Mass.   3. 

50.  Rider  &  Driver  Pub.  Co.  v.  Roughrlder 
Horseshoe  Co.,   82  N.  Y.   Supp.   765. 


772 


CORPORATIONS. 


15K 


cure  the  bank  in  which  he  was  a  stockholder,^^  nor  can  a  stockholder  in  a  building 
and  loan  association  take  an  acknowledgment  of  a  mortgage  to  it,  though  the  mere 
fact  that  the  notary  is  an  officer  or  director  without  being  a  stockholder  in  the 
corporation  does  not  disqualify  him." 

Business  managers,  salesmen,  etc. — An  officer  who  is  a  general  manager  may 
make  the  ordinary  or  incident  contracts  without  there  having  been  a  formal 
vote  of  the  directors.''  His  contracts  may,  by  the  by-laws,  be  made  subject  to  the 
approval  of  the  executive  committee  and  not  binding  without  such  approval.'* 
A  custom  to  allow  officers  and  managing  agents  to  act  with  regard  to  certain 
matters  may  render  their  acts  binding  if  such  as  are  within  the  limits  of  the 
corporation's  powers.-'*'  Where  the  treasurer  and  manager  has  control  of  the  cor- 
poration, he  may  without  special  authority  employ  a  person  to  assist  in  securing 
new  capital  for  the  business.'®  Where  a  corporation  is  not  organized  for  such 
purpose,  its  managing  officer  cannot  bind  it  by  subscription  for  the  stock  of  another 
corporation,  and  one  who  desires  to  take  advantage  of  such  subscription  must  show 
authorization  or  ratification.'^  The  manager  of  a  corporation  organized  for  the 
purpose  of  raising  cattle  and  acquiring  property  necessary  therefor  has  no  authority 
to  execute  a  note  in  the  name  of  the  corporation  unless  specially  authorized,'* 
nor  does  the  fact  that  he  has  been  authorized  to  purchase  property  authorize  him 
to  execute  an  agreement  that  payment  should  be  deferred  and  the  debt  should 
bear  interest  greater  than  the  legal  rate.'^  The  manager  of  a  beet  sugar  cor- 
poration has  power  to  indenmify  a  grower  against  loss  on  condition  of  his  taking 
care  of  the  crop.®"  An  officer  of  a  corporation  authorized  to  make  a  sale  to  a 
customer  on  credit  may  pledge  the  corporation's  credit  to  enable  him  to  con- 
tinue business  and  borrow  money  for  such  purpose,  it  being  the  only  way  in  which 
he  had  to  pay  for  the  goods.®^  A  corporation  is  not  bound  by  the  promise  of  its 
traveling  salesman  to  pay  commissions  to  a  third  person.®-  Authority  of  a  cor- 
poration superintendent  to  indorse  a  check  cannot  be  inferred  from  his  actions  a? 
general  manager,  and  the  fact  tliat  he  has  countersigned  checks  drawn  in  payment 
for  material,  nor  from  the  mere  fact  of  possession.®'  The  superintendent  of  an 
express  company  has  no  authorit}'  to  make  a  contract  in  settlement  of  a  mes- 
senger's claim  for  injury  against  a  railroad  company.®*  The  general  manager  of  a 
corporation  may  bind  it  by  employment  of  a  surgeon  to  attend  an  injured  em- 
ploye to  whom  it  is  liable,®'  but  autliority  of  a  superintendent  to  hire  and  dis- 
charge employes  does  not  give  him  such  right.®® 

Evidence  of  authority.^'' — Where  in  an  action  to  recover  money  borrowed  by  the 
corporation's  vice-president  he  claimed  to  have  borrowed  only  under  an  implied 


."Jl.  First  Nat.  Bank  v.  Citizens  State  Bank 
(Wyo.)    70  Pac.   726;  Wilson  v.  Griess   (Neb.) 

90  N.  W.  866. 

53.  Ogden  Bldg.  &  Loan  Ass'n  v.  Mensch, 
196   jn.  554. 

rtS.     Lowe  V.  Ring,   115  Wis.   575. 

.'4.     Skene  v.  Union  Casualty  &  Surety  Co., 

91  Mo.  App.  120. 

55.  Woodward  v.  Nelligan,  19  App.  D.  C. 
550. 

5C.  Whitman  v.  Koted  Silk  Underwear 
Co..  38  Misc.  (N.  Y.)  796. 

67.  W.  L.  Wells  Co.  v.  Avon  Mills,  118  Fed. 
190. 

58,  59.  Sanford  Cattle  Co.  v.  Williams 
(Colo.  App.)    71   Pac.   889. 

60.  Constantine  v.  Kalamazoo  Beet  Sugar 
Co.   (Mich.)   93  N.  W.  1088. 

61.  Hess  V.  W.   &  J.  Sloane,   173  N.  T.   616. 
82.     Jones  v.   Keeler,   41  Misc.    (N.   Y.)    221. 


C3.  .Jackson  Paper  Mfg.  Co.  v.  Commercial 
Nat.  Bank,  199  III.   151,   59  L.  R.  A.  657. 

64.  In  order  that  the  messenger  should 
not  sue  the  railroad  company,  the  superin- 
tendent agreed  that  he  should  be  paid  a  cer- 
tain sum  monthly  during  his  life,  but  though 
the  payments  were  continued  for  several 
years,  the  messenger  could  not  maintain  an 
action,  the  agreement  by  the  company  hav- 
ing been  regarded  as  gratuitous  and  the  su- 
perintendent having  made  no  other  similar 
agreement — Chenoweth  v.  Pacific  Exp.  Co.. 
93  Mo.  App.  185. 

65.  Lithgow  Mfg.  Co.  v.  Samuel,  24  Ky. 
L.  R.  1590,  71  S.  W.  906. 

66.  King  V.  Forbes  Lithograph  Mfg.  C<> 
(Mass.)   67  N.  E.  330. 

67.  On  an  issue  as  to  the  assignment  of  a 
chattel  mortgage  by  a  corporation,  the  min- 
utes   of    the    directors'    meeting    authorizing 


§  15L 


APPARENT  AUTHORITY  OF  OFFICERS. 


773 


authority,  evidence  that  there  was  only  special  authority  was  properly  excluded, 
the  only  question  being  whether  under  a  resolution  conferring  general  power  to 
manage  the  corporation's  property  he  had  authority  to  borrow  money  to  pay  taxes."* 

(§  15)  L.  Apparent  authority  of  officers  and  agents,  and  estoppel,  of  the  cor- 
poration and  of  others. — Where  innocent  third  persons  are  concerned,  authority  may 
be  inferred  at  times  from  the  custom  of  dealing.^^  The  fact  of  execution  of  a  con- 
tract may  be  considered  as  bearing  on  the  question  of  implied  authority.'"  To  show- 
implied  authority,  parol  evidence  of  occurrences  at  meetings  of  the  board  of  directors 
not  shown  in  the  minutes  may  be  introduced.'^^  The  fact  that  a  person  is  acting 
as  an  officer  de  facto  of  a  corporation  will  not  validate  a  mortgage,  where  he  has 
acted  fraudulently  as  against  the  creditors  of  the  corporation  and  the  corporation 
itself  and  the  mortgagee  participates  in  such  fraud.'^  The  signing  of  certificates 
to  the  resolutions  of  the  board  of  directors  of  a  corporation,  being  within  the  scope 
of  the  secretary's  employment,  is  binding  on  the  corporation  though  they  were  un- 
authorized and  fraudulent.'^' 

Statements  of  representatives  as  to  authority. — A  statement  by  the  secretary  of 
a  corporation  that  the  corporation  would  not  perform  a  contract,  and  that  he  was 
authorized  by  the  directors  and  stockholders  to  so  state,  will  not  bind  the  corpora- 
tion without  other  showing  as  to  his  authority.  The  rule  as  to  the  agency  of  a 
corporate  officer  for  the  corporation  is  the  same  as  in  the  case  of  natural  persons, 
and  the  mere  fact  that  the  officer  represented  himself  to  be  empowered  to  act  for  the 
corporation  does  not  place  the  burden  of  disproving  authority  upon  the  corpora- 
tion.'* 

Implied  permission  to  act. — Where  there  is  a  neglect  of  corporate  meetings, 
and  the  president  is  apparently  permitted  to  carry  on  the  business,  authority  from 
the  directors  to  do  so  may  be  presumed.'^  If  the  secretary  and  treasurer  of  a  cor- 
poration is  allowed  complete  control  over  its  assets,  his  fraud  cannot  be  asserted  as 
against  bona  fide  holders.'"  If  the  corporation  alleges  that  a  note  sued  on  was 
executed  by  its  officer  as  a  part  of  a  fraudulent  conspiracy  with  plaintiff,  it  is  an 
admission  of  the  officer's  authority  to  execute  a  note  and  prevents  the  assertion  of 
the  defense,  also  set  up,  of  want  of  authority."  Wrongful  acts  in  other  matters  do 
not  relieve  the  corporation  from  liability  for  acts  of  an  agent  in  the  scope  of  his 
authority.'* 


the  president  to  make  a  transfer,  the  corpo- 
rate by-laws  and  parol  evidence  of  the  presi- 
dent as  to  the  transfer  are  admissible — Clem 
V.  Wise.  133  Ala.  403.  The  evidence  of  a  for- 
mer president  of  a  corporation  may  be  ad- 
missible to  show  what  a  person's  duties 
were  as  general  manager,  he  having  testified 
that  they  had  not  been  fixed  by  resolution — 
Clarke  v.  I^exington  Stove  Works,  24  Ky.  L. 
R.  1755,  72  S.  W.  286;  Clark  v.  Lexington 
Stove  Works,  24  Ky.  L.  R.  2247.  73  S.  W. 
788.  Evidence  consisting  of  letters  of  a  gen- 
eral manager  and  reference  to  him  as  such 
in  the  records  and  articles  of  the  corpora- 
tion, may  be  suflficient  to  take  his  authority 
as  agent  to  the  jury — Clarke  v.  Lexington 
Stove  Works,  24  Ky.  L.  R.  1755.  72  S.  W. 
286;  Clark  v.  Lexington  Stove  Works.  24  Ky. 
L.  R.  2247,  73  S.  W.  788.  Facts  held  to  show 
an  employment  by  the  president  individually 
In  the  purchase  of  stock — Butcher  v.  Harvie 
Drug  Co..  79  App.  Div.  (N.  Y.)  631.  Evidence 
held  sufficient  to  show  an  apparent  authority 
to  extend  time  granted  to  remove  timber 
from   the   corporate   lands — St.   Clair  v.   Rut- 


ledge,  115  Wis.  583.  Evidence  held  to  show 
authority  on  the  part  of  president  and  Bec- 
retary  to  enter  into  a  contract  retaining  an 
attorney — Union  Surety  &  Guaranty  Co.  v. 
Tenney,  200  111.  349.  Evidence  held  sufficient 
for  the  submission  to  the  jury  on  the  ques- 
tion of  the  authority  of  a  corporation's  su- 
perintendent to  contract  with  a  broker  for 
the  sale  of  a  vessel  owned  by  the  corporation 
— Hartford  &  New  York  Transp.  Co.  v.  Ply- 
mer   (C.  C.  A.)    120  Fed.   624. 

C8.  St.  James  Co.  v.  Security  Trust  &  Life 
Ins.  Co.,  81  N.  Y.  Supp.  739. 

69,  70,  71.  Smith  v.  Bank  of  New  England 
(N.   H.)   54  Atl.   385. 

73.     Lamb  v.  Mclntire  (Mass.)   67  N.  E.  320. 

73.  Hutchison  v.  Rock  Hill  Real  Estate  & 
Loan  Co.,   65   S.  C.   45. 

74.  Brndford  Belting  Co.  v.  Gibson,  68 
Ohio  St.  442. 

75.  St.  Clair  v.  Rutledge,   115  Wis.  583. 

76.  Hutchison  v.  Rock  Hill  Real  Estate  & 
Loan  Co.,  65  S.  C.   45. 

77.  Baines  v.  Coos  Bay  Nav.  Co,  41  Or. 
135,  68  Pac.  397. 


774 


CORPORATIONS. 


§  15L 


Acceptance  of  henefts. — Wliere  a  corporation  accepts  the  benefits  of  a  bond,  it 
is  bound  by  the  representations  of  its  president  leading  up  to  the  execution  there- 
of J*  Wliere  money  is  received  by  the  officers  and  stockholders  of  the  corporation 
with  the  knowledge  and  consent  of  all  members,  a  formal  authorization  of  the  loan 
is  not  necessary.®^  Though  a  contract  may  be  fraudulent  as  to  tlie  corporation,  if 
it  has  been  fully  executed  by  the  parties  and  the  corporation  has  acted  by  its  direct- 
ors with  full  knowledge  of  what  they  were  doing,  it  is  bound  thereby.^^ 

Estoppel  by  individual  acts. — The  fact  that  a  corporation's  secretary  and  treas- 
urer agrees  to  act  as  asrignec  of  a  bankrupt  does  not  estop  the  corporation  from 
joining  in  proceedings  to  have  the  banl^rupt  declared  an  involuntary  bankrupt,  the 
secretary  having  acted  as  an  individual,  and  it  not  being  within  the  scope  of  his 
ordinary  duties. ^^  A  corporation  cannot  be  made  liable  for  services  rendered  an- 
other corporation  by  the  fact  that  the  bill  is  rendered  to  its  treasurer,  and  he  states 
that  the  persons  who  held  stock  in  defendant  company  would  not  allow  such  bill  to 
remain  unpaid.*^  Jloney  passing  through  the  hands  of  a  corporation  on  ultra  vires 
transactions  from  which  the  corporation  acquired  no  benefit  cannot  be  recovered 
from  it  on  the  ground  that  such  transactions  are  gambling  ones  or  are  personal  to 
the  corporation's  officer  and  with  the  knowledge  of  the  corporation.®* 

Duty  of  third  persons  to  take  notice  of  powers. — A  person  dealing  with  a  cor- 
poration through  its  officers  is  bound  to  take  notice  of  the  limitations  of  power  pre- 
scribed by  the  charter.®'  Where  a  check  to  a  corporation  is  indorsed  by  the  corpo- 
ration's superintendent  as  such,  the  bank  is  bound  to  ascertain  the  extent  of  the 
agent's  authority.®*  One  who  contracts  with  a  corporate  president  who  assumes  to 
act  for  the  corporation  must  take  notice  of  the  extent  of  his  powers,®'  By-laws 
limiting  the  powers  of  officers  are  not  conclusive  as  against  persons  dealing  with 
them  unless  there  is  proof  of  knowledge  or  notice.®®  Wliere  a  person  deals  with  a 
corporate  officer  in  regard  to  biisiness  within  the  scope  of  the  corporation's  business, 
and  of  which  he  is  in  usual  charge,  such  person  is  warranted  in  assuming  authority.®" 
Where  an  officer  of  a  corporation  has  been  put  in  control  of  its  affairs  and  permitted 
to  manage  and  conduct  its  business,  his  authority  to  bind  the  corporation  will  be 
inferred  from  the  authority  thus  conferred  on  him,  and  the  corporation  is  held  for 
his  acts  to  a  person  acting  without  notice  that  he  has  exceeded  his  authority.^" 

Allowing  other  party  to  act. — A  beet  sugar  corporation  may  be  estopped  to  as- 
sert want  of  authority  of  its  manager  to  guaranty  beet  growers  against  loss,  where 
a  beet  grower  hearing  that  such  indemnity  has  been  promised  others  refuses  to  pro- 
ceed with  his  crop  unless  he  is  indemnified.®^     Where  a  corporation  has  executed  a 


78.  A  corporation  Is  liable  to  bona  fide 
holders  of  checks  drawn  by  Its  agent,  though 
such  ag-ent  has  been  an  embezzler,  where  it 
Is  not  shown  that  the  proceeds  of  the  checks 
have  been  lost  to  the  corporation,  or  that 
the  holder  had  knowledge  that  the  money 
was  being  unlawfully  converted  to  the  use  of 
the  agent — Stotts  City  Bank  v.  T.  A.  Miller 
Lumber  Co.   (Mo.)   74  S.  "W.   472. 

79.  Representations  of  a  president  as  to 
the  habits  of  a  cashier  referring  to  his  ap- 
plication for  Indemnity  bonds  are  binding 
on  the  bank — "Warren  Deposit  Bank  v.  Fidel- 
ity  &  Deposit  Co.   (Ky.)    74  S.  W.   1111. 

80.  Burke  v.  Sidra  Bay  Co.  (Wis.)  92  N. 
W.  568. 

81.  Ross  v.  Sayler,  104  111.  App.  19. 

82.  In  re  Winston,  122  Fed.  187. 

83.  Rider  &  Driver  Pub.  Co.  v.  Rough 
Rider  Horseshoe  Co.,  84  App.  Div.  (N.  Y.) 
S83. 


84.  Money  passing  into  the  hands  of  a 
corporation  as  the  result  of  an  agreement 
of  its  manager  to  make  option  contracts  in 
lard  in  the  name  of  the  member  of  another 
corporation  whose  money  was  used  in  the 
transaction — Clark  v.  Parker  (Mich.)  91  N. 
W.    134. 

S3.  Sturdevant  Bros.  &  Co.  v.  Farmers'  & 
M.  Bank  (Neb.)  95  N.  W.  819. 

86.  Jackson  Paper  Mfg.  Co.  v.  Commer- 
cial Nat.  Bank.  199  111.  151,  59  L.  R.  A.  657. 

87.  St.  Clair  v.  Rutledge,  115  Wis.   583. 

88.  Rosenbaum  v.  Gilliam  (Mo.)  74  S.  W. 
507. 

80.     St.  Cnair  v.  Rutledge,   115  Wis.  583. 

90.  Corporation  held  bound  by  the  acts  of 
managing  officer  in  employing  a  patent  so- 
licitor to  file  applications  for  patents — Ro- 
senbaum V.  Gilliam   (Mo.)   74  S.  W.  507. 

91.  Constantine  v.  Kalamazoo  Beet  Suffar 
Co.   (Mich.)    93  N.   W.  1088. 


§  15M 


RATIFICATION  OF  ACTS  OF  REPRESENTATIVES. 


775 


quitclaim  deed  to  land  and  its  officers  and  stockholders  know  of  the  execution  and 
do  not  question  the  authority,  it  is  estopped  on  acquiring  a  superior  title  from  as- 
serting such  title  as  against  the  grantor  who  has  made  valuable  improvements  as  a 
consideration  for  the  transfer.^^  After  an  agreement  whereby  the  general  man- 
ager of  a  corporation  is  to  pay  all  its  expenses,  those  who  deal  with  him  under  the 
agreement  are  not  entitled  to  share  on  a  sale  by  a  receiver  of  the  assets  of  the  cor- 
poration.*' Where,  after  execution  of  a  deed,  the  grantee  makes  improvements 
called  for  in  the  contract,  the  stockholders  and  officers  of  the  corporation  having 
knowledge  of  the  transaction  cannot  repudiate  the  deed  several  years  later."* 

Acquiescence  in  similar  acts. — Where  the  president  is  allowed  to  exercise  par- 
ticular powers,  the  corporation  may  be  estopped  from  denying  his  possession  there- 
of.*^ The  fact  that  an  officer  has  previously  performed  similar  acts  without  objec- 
tion may  be  evidence  of  his  authority  therefor,  though  such  authority  cannot  be  spe- 
cifically gathered  from  the  records  of  the  corporation."^  Authorization  of  a  con- 
tract within  the  powers  of  the  corporation  may  be  shown  by  the  general  manner  in 
which  the  directors  permitted  the  president  and  treasurer  to  act  for  it."^ 

(§  15)  M.  Ratification  of  unauthorized  acts. — If  the  acts  of  a  representative 
are  accepted  by  the  corporation  or  acquiesced  in  by  it,  they  become  binding."*  An 
assignee  for  creditors  stands  in  no  better  position  than  the  corporation.""  Subsequent 
knowledge  and  assent  may  take  the  place  of  prior  authority.^  There  can  be  no 
implied  ratification  in  the  absence  of  knowledge.'^  Where  with  knowledge  of  a  con- 
tract, the  corporation  accepts  and  retains  benefits  thereunder,  it  amounts  to  a  rati- 
fication.' Nonobjection  to  a  contract  may  tend  to  show  ratification.*  A  ratifica- 
tion of  a  sale  by  the  directors  of  a  corporation  amounts  to  a  ratification  of  the  em- 


92.  West  Seattle  Land  &  Imp.  Co.  v.  Nov- 
elty Mill  Co.,  31  Wash.  435,  72  Pac.  69. 

93.  Commonwealth  v.  Pennsylvania  Ger- 
mania  Bldg.  &  Loan  Ass'n,  204  Pa.  29. 

94.  Conclusive  presumption  of  authority 
of  officer  arises — West  Seattle  Land  &  Imp. 
Co.  V.  Novelty  Mill  Co.,  31  Wash.  435,  72  Pac. 
69. 

95.  St.  Clair  v.  Rutledge,  115  Wis.   583. 

96.  Act  of  the  general  manag-er  of  a  town- 
site  company  in  signing  a  petition  for  mu- 
nicipal improvements  as  required  by  Gen.  St. 
1901,  §  730 — Kansas  City  v.  Cullinan,  65  Kan. 
68,  68  Pac.  1099. 

97.  Smith  v.  Bank  of  New  England  (N. 
H.)  54  Atl.  385. 

98.  Acts  of  president — Bennett  v.  Mill- 
vllle  Imp.  Co.,  67  N.  J.  Law,  320.  Majority 
stockholder — Dupignac  v.  Bernstrom,  37 
Misc.  (N.  Y.)  677.  The  ratification  by  the 
directors  of  the  modification  of  a  contract  by 
the  president,  may  be  implied  from  their 
subsequent  actions — Taylor  Gas  Producer 
Co.  V.  Wood,  119  Fed.  966. 

99.  Ross  V.  Sayler,  104  111.  App.  19. 

1.  Smith  V.  Bank  of  New  England  (N.  H.) 
64  Atl.  385.  Sale  of  stock  of  goods  by  a  di- 
rector owning  half  of  the  stock,  and  acting 
as  general  manager,  and  secretary  made 
with  knowledge  of  his  wife  who  was  a  stock- 
holder, the  bill  of  sale  being  signed  by  the 
sole  other  director,  who  owned  one-fifth  of 
the  stock — Magowan  v.  Groneweg  (S.  D.)  91 
N.  W.  335.  Evidence  held  to  show  consent 
to  the  delivery  of  a  deed  on  immediate  pay- 
ment of  less  than  the  sum  of  future  payment 
agreed  on — Ruble  Combination  Gold  Min.  Co. 
V.  Princess  Alice  Gold  Min.  Co.  (Colo.)  71 
Pac.  1121.  A  corporation  may  by  proper  ac- 
tion of  Its  directors  or  stockholder^  ratify  a 


void  trust  deed  or  ratification  may  result 
from  acquiescence  by  the  stockholders  with 
complete  knowledge — First  Nat.  Bank  v. 
East  Omaha  Box  Co.  (Neb.)  90  N.  W.  223. 

2.  Mortgage  of  corporate  property — First 
Nat.  Bank  v.  Kirkby  (Fla.)  32  So.  881.  Evi- 
dence held  sufficient  to  show  actual  or  con- 
structive knowledge  of  the  directors  of  the 
execution  by  the  president  and  treasurer  of 
a  contract  for  the  Issuance  of  certificates  of 
deposit — Smith  v.  Bank  of  New  England  (N. 
H.)   54  Atl.  385. 

3.  Sale  of  water  rights — Washington  Irr. 
Co.  V.  Krutz  (C.  C.  A.)  119  Fed.  279.  Con- 
tract by  a  president  for  the  furnishing  of  a 
switch  track — Michigan  Cent.  R.  Co.  v.  Chi- 
cago, K.  &  S.  Ry.  Co.  (Mich.)  93  N.  W.  882. 
After  a  toll  road  company  has  complied  with 
the  contract  to  free  an  adjoining  owner  from 
payment  of  tolls  in  consideration  of  his  clos- 
ing a  certain  road,  the  authority  of  the  per- 
son entering  into  the  contract  for  the  toll 
road  cannot  be  questioned — Great  Western 
Turnpike  Co.  v.  Shafer,  172  N.  Y.  662.  Guar- 
anty of  notes  by  president  of  a  corporation 
having  power  to  own,  transfer  and  guarantee 
notes  and  mortgages — Hunt  v.  Northwestern 
Mortg.  Trust  Co.  (S.  D.)  92  N.  W.  23.  Agree- 
ment of  president  to  a  general  lien  for  ad- 
vances— Mathews  v.  Hardt,  79  App.  Div.  (N. 
Y.)  570.  Where  all  the  stockholders  but  the 
holders  of  two  shares  agree  to  the  convey- 
ance of  land  by  the  corporation,  and  the  pur- 
chase price  is  received  by  the  stockholr'ers, 
the  deed  cannot  be  thereafter  disaffirmed — 
Wentworth  v.  Braun,  78  App.  Div.  (N.  Y.) 
634. 

4.  Salem  Iron  Co.  v.  Commonwealth  Iron 
Co.   (C.  C.  A.)   119  Fed.  593. 


776 


CORPORATIONS. 


15  N 


ployment  of  a  broker  incidental  thereto.'*  If  the  corporation  desires  to  repudiate 
contracts  made  by  its  president,  it  must  reject  them  entirely.*  A  vote  of  the  cor- 
porate directors  that  all  notes  representing  advances  and  not  exceeding  a  certain 
amount  be  thereby  ratified  and  approved  is  a  ratification  of  a  note  executed  by  its 
president  and  indorsed  by  him  with  the  corporate  name,  the  money  received  haying 
gone  into  the  business  and  being  fully  disclosed  by  the  books  of  the  corporation, 
three  members  of  the  directorate  and  officers  of  the  corporation  knowing  of  the 
transaction,  and  it  not  being  contended  that  the  acts  of  the  ofiicers  were  fraudulent.^ 
The  vote  acted  as  a  ratification  also  on  the  ground  that  the  directors  must  be  held, 
as  between  the  parties,  to  have  acted  with  full  knowledge  as  to  the  special  matter 
as  to  which  they  were  voting.* 

(§15)  N.  Notice  to  or  Jcnowledge  of  officers  or  agents  as  notice  to  or  Icnowl- 
edge  of  corporation. — Information  to  an  ofBcer  or  agent  of  a  corporation  is  notice  to 
the  corporation,®  but  notice  must  be  to  the  officers  or  agents  who  have  power  to  act 
thereon  or  to  persons  whose  duty  it  is  to  impart  the  information  to  such  officers  or 
agents."  Where  two  corporations  in  their  dealings  with  each  other  are  both  rep- 
resented by  the  same  person,  who  is  president  of  both,  knowledge  obtained  as  presi- 
dent of  one  will  be  notice  to  the  other.^^ 

Where  the  officer  acquired  knowledge  in  his  individual  affairs,  the  corporation 
is  not  chargeable  with  notice  thereby,  nor  is  it  chargeable  with  knowledge  when  it 
is  dealing  with  its  officer  as  a  stranger,^^  or  where  the  officer  is  acting  adversely  to 
it/'  or  in  his  own  interest.^*  The  knowledge  of  a  director  of  his  own  unauthor- 
ized act  is  not  binding  on  the  corporation  as  notice.^^ 

Knowledge  gained  in  transactions  not  connected  with  the  one  under  considera- 
tion is  not  imputable  to  the  corporation.^® 

(§  15)  0.  Admissions,  declai-ations,  and  representations  of  officers  and  agents. 
— As  against  a  corporation,  the  admissions  of  its  agents  are  not  admissible  unless  in 


5.  Henderson  v.  Raymond  Syndicate 
(Mass.)   67  N.  E.  427. 

6.  Contract  for  sale  and  re-purchase  of 
stock — Fremont  Carriage  Mfg.  Co.  v.  Thom- 
sen  (Neb.)   91  N.  W.  376. 

7.  Beacon  Trust  Co.  v.  Souther  (Mass.)  67 
N.  E.  345. 

8.  Beacon  Trust  Co.  v.  Souther  (Mass.)  67 
N.  E.  345. 

0.  Waters  v.  West  Chicago  St.  R.  Co.,  101 
111.  App.  265.  Allegation  that  an  accident 
was  caused  by  the  fact  that  defendant's 
president  removed  a  part  of  a  machine,  and 
that  such  fact  was  known  to  the  company 
through  its  president,  is  a  sufficient  aver- 
ment of  notice — Houston  Biscuit  Co.  v.  Dial. 
135  Ala.  168.  Bank  is  chargeable  with  no- 
tice of  pledge  of  its  stock  by  the  fact  that 
the  pledgee  shows  the  certificate  to  the  pres- 
ident in  order  to  find  out  whether  It  had 
been  regularly  Issued,  and  the  bank's  lien 
for  a  loan  subsequently  made  to  the  pledgor 
of  the  stock,  is  subordinate  to  the  lien  of 
the  pledgee — Curtice  v.  Crawford  County 
Bank  (C.  C.  A.)  118  Fed.  390. 

10.  Nehawka  Bank  v.  Ingersoll  (Neb.)  89 
N.  W.  618.  Notice  to  a  traveling  salesman  of 
a  corporation  of  the  dissolution  of  a  part- 
nership Is  not  notice  to  the  corporation, 
where  the  salesman  Is  not  allowed  to  extend 
credit  or  required  to  report  the  membership 
of  firms  with  w^hich  the  corporation  deals — 
Neal  V.  Smith  (C.  C.  A.)  116  Fed.  20.  Where 
an   indemnity  bond  for  the  president  as  an 


employe  of  a  bank  stipulates  that  the  em- 
ployer will  not  continue  the  employe  in  em- 
ployment after  he  has  committed  a  default, 
a  surety  is  not  released  by  the  knowledge  of 
a  minority  of  board  of  directors  or  of  the 
vice-president — Fidelity  &  Deposit  Co.  v. 
Courtney,  186  U.  S.  342,  46  Law.  Ed.  1193. 

11.  Knowledge  that  the  capital  stock  of 
one  corporation  w^hich  borrows  from  another 
has  been  paid  in  property  at  an  exaggerated 
value  prevents  the  lending  corporation  from 
insisting  later  that  the  par  value  of  such 
stock  be  paid  in — Berry  v.  Rood,  168  Mo.  316. 

12.  People's  Bank  v.  Exchange  Bank,  116 
Ga.  820. 

13.  As  where  the  president  Indorses  drafts 
payable  to  himself  to  the  corporation  in  or- 
der that  the  drawers  may  realize  upon  it — 
Levy  &  C.  Mule  Co.  v.  KaufCman  (C.  C.  A.) 
114  Fed.  170. 

14.  Metcalf  V.  Draper,   98  111.  App.   399. 
13.     Act  of  director  and  manager  in  giving 

a  note  In  the  corporate  name — Sanford  Cattle 
Co.  v.  '^''illiams  (Colo.  App.)  71  Pac.  8S9. 

16.  Knowledge  of  an  agreement  executed 
by  the  president  without  authority  while  act- 
ing with  regard  to  distinct  transactions — 
Bangor  &  P.  R.  Co.  v.  American  Bangor  Slate 
Co.,  203  Pa.  6.  A  corporation  is  not  charged 
with  knowledge  acquired  by  its  president 
while  acting  as  attorney  for  other  parties  In 
regard  to  the  execution  of  a  mortgage  aft- 
erwards assigned  to  the  corporation — Tate  v. 
Security  Trust  Co.,  63  N.  J.  Eq.  559. 


§15Q 


DELEGATION    OF  AUTHORITY.     LIABILITY  OF  OFFICERS. 


777 


the  line  of  their  duty."  Declarations  and  admissions  by  stockholders  and  officers  are 
not  binding  on  the  corporation  unless  made  while  acting  for  the  corporation  in  con- 
nection with  the  transactions."  If  the  acceptance  of  official  bonds  is  entirely  en- 
trusted to  the  board  of  directors,  the  president's  statements  do  not  affect  the  liability 
of  sureties  on  a  cashier's  bond.^"  The  corporation  is  not  bound  by  statements  of  its 
agent  with  regard  to  the  sale  of  stock  owned  by  himself.^"  Admissions  of  a  president 
or  superintendent  of  a  corporation  made  after  an  answer  has  been  filed  in  an  action 
against  it  are  not  admissible  as  against  the  corporation.-^  A  letter  is  properly  ad- 
mitted in  evidence  as  sho\vn  to  have  been  authorized  by  a  corporation,  where  it  ap- 
pears that  it  was  dictated  by  the  general  manager  to  the  stenographer  of  the  corpora- 
tion who  was  also  its  secretary,  and  she  wrote  and  signed  it  as  she  did  other  letters 
sent  by  the  manager.*^ 

(§  15)  P-  Delegation  of  authority  hy  directors. — Where  under  an  incomplete 
sale  of  the  entire  corporate  stock  to  one  person,  such  person  is  given  the  entire  man- 
agement of  the  corporate  affairs  by  the  board  of  directors,  the  corporation  is  bound 
by  his  acts  within  the  corporate  powers.^^ 

(§15)  Q.  Personal  liability  of  officers  and  agents. — Where  a  transaction  is 
within  the  corporate  powers,  directors  are  not  personally  liable  thereon,  though  at 
other  times  and  with  other  persons  they  may  have  done  business  not  authorized  by 
the  charter."  They  may  be  personally  liable  for  their  ultra  vires  acts,  if  a  waste  of 
the  corporate  property  results-^"*  Mere  payment  of  a  valid  demand  in  an  unauthor- 
ized way  does  not  render  the  directors  liable  for  a  depreciation  of  funds  unless  there 
is  special  damage.^® 

The  president  of  a  corporation  does  not  become  personally  liable  by  defending 
an  action  against  it,  and  is  not  liable  on  a  judgment  against  the  corporation  for 
negligence,  if  no  personal  negligence  is  charged  and  he  was  not  a  party. ^^ 

Where  a  corporation's  president  executes  a  note  in  its  name  by  himself  as  presi- 


17.  Admlsslblet  Reports  of  persons  su- 
perintending work  performed  by  a  corpora- 
tion, made  to  the  corporation,  are  admissible 
to  show  the  condition  of  the  work — Lipscomb 
V.  South  Bound  R.  Co.,  65  S.  C.  148.  Declara- 
tions of  a  fire  insurance  agent  concerning 
commissions  from  the  company  itself  may  be 
binding  on  It — Ulysses  Elgin  Butter  Co.  v. 
Hartford  Fire  Ins.  Co.,  20  Pa.  Super.  Ct.  384. 
The  admissions  of  an  adjuster  are  binding  on 
an  insurance  company  if  made  w^hile  he  is  ex- 
amining the  extent  of  the  loss — Sisk  v.  Amer- 
ican Cent.  Fire  Ins.  Co..  95  Mo.  App.  695.  A 
letter  of  a  manager  of  a  corporation  concern- 
ing a  compromise  of  a  claim  for  a  broker's 
commission  where  from  the  evidence  it  ap- 
peared that  the  corporation  had  left  the  en- 
tire charge  of  its  business  to  the  manager 
dictating  the  letter — Henderson  v.  Raymond 
Syndicate  (Mass.)  67  N.  E.  427. 

Not  admis.sible:  Statement  by  railroad  of- 
ficial that  appliances  used  were  bad,  the 
official  not  having  control  over  the  equip- 
ment or  management  of  such  appliances — 
Hayzel  V.  Columbia  R.  Co.,  19  App.  D.  C.  359. 
Statement  by  the  officers  and  stockholders 
of  a  corporation,  which  had  sold  a  machine, 
as  to  Its  working,  such  persons  having  noth- 
ing to  do  with  the  operation  of  the  machine 
— Haynie-Campbell  Co.  v.  Preston  Creamery 
Ass'n  (Iowa)  93  N.  W.  297.  Statement  after 
the  transaction  in  issue — Harper  v.  "Western 
Union  Tel.  Co.,  92  Mo.  App.  304.  A  letter 
from  the  vice-president  of  a  bank  to  the  in- 
dorser  of  a  note,   where  not  written   in   his 


official  capacity  or  on  bank  stationery — Utica 
City  Nat.  Bank  v.  Tallman,  172  N.  Y.  642. 

18.  Statements  In  regard  to  the  existence 
of  a  debt — Stanton  v.  Baird  Lumber  Co.,  132 
Ala.  635.  Declarations  with  corporation's 
general  manager  as  to  the  cause  of  an  action 
made  shortly  after  its  occurrence — Momence 
Stone  Co.  v.  Groves,  197  111.  88. 

19.  Ida  County  Sav.  Bank  v.  Seidensticker 
(Iowa)  92  N.  "W.  862. 

20.  Though  the  person  dealing  with  the 
agent  thought  that  he  should  have  accurate 
information  from  his  capacity — Western 
Realty  &  Inv.  Co.  v.  Haase,  75  Conn.  436. 

21.  Such  admissions  are  only  admissible 
as  part  of  the  res  gestae — McEntyre  v.  Levi 
Cotton  Mills,  132  N.  C.  598. 

22.  Henderson  v.  Raymond  Syndicate 
(Mass.)    67  N.  E.   427. 

23.  Where  the  directors  of  a  mill  com- 
pany turn  its  management  over  to  an  indi- 
vidual pending  the  completion  of  a  transfer 
of  the  corporate  stock,  the  corporation  and 
not  the  individual  is  liable  for  contracts  in- 
cident to  his  management — Albany  Mill  Co. 
v.  Huff,  24  Ky.  L.  R.   2037,   72  S.  W.   820. 

24.  Dietrich  v.  Rothenberger  (Ky.)  75  S 
W.  271. 

25.  Dietrich  v.  Rothenberger  (Ky.)  75  S. 
W.  271.  Use  of  corporate  assets  of  an  in- 
surance company  to  purchase  a  mutual  in- 
surance company  which  is  without  assets  or 
good  will — Gilbert  v.  Finch,  173  N.  Y.   455. 

26.  Manhattan  Fire  Ins.  Co.  v.  Fox.  74 
App.  Div.  (N.  Y.)  271. 


778 


CORPORATIONS. 


§  15R 


dent  in  OTclcr  to  conceal  the  fact  that  he  is  purchasing  stock  in  his  own  name,  he 
becomes  personally  liable  on  such  note  and  the  corporation  signing  is  not  bound.-* 

(§15)  R.  Liability  of  officers  for  mismanagement.-^ — Wliere  a  corporation  is 
a  majority  stockholder  in  another  corporation,  the  directors  of  the  controlling  corpo- 
lation  are  answerable  only  for  fraud  or  for  such  gross  negligence  in  the  management 
as  amounts  to  fraud.^°  Asquiescence  by  the  board  of  directors  in  the  acts  of  a  secre- 
tary in  a  transfer  of  the  corporate  assets  is  not  fraudulent  as  to  the  rights  of  stock- 
holders unless  the  directors  have  notice  of  such  facts  as  may  be  reasonably  expected 
to  furnish  the  basis  for  a  successful  attack  on  the  transfers.'* 

Where  a  corporation  sells  certificates  of  membership  providing  that  a  certain 
portion  of  the  collections  made  thereon  shall  be  used  for  current  expenses,  and 
for  such  other  expenses  as  the  directors  might  direct,  the  directors  are  not  en- 
titled to  use  such  receipts  in  the  payment  of  dividends,  the  corporation  being  in- 
solvent.'^ 

By  statute,  a  director  may  sue  the  oflBcers  and  other  directors  of  a  corporation 
for  an  accounting,  and  the  corporation  need  not  be  made  a  plaintiff  though  properly 
joined  as  defendant.  Other  persons  given  the  right  to  sue  by  the  section  and  gen- 
eral creditors  need  not  be  joined.''  Where  the  corporation  treasurer  sues  one  who 
preceded  him  in  office  for  an  accounting  as  to  the  corporate  funds,  the  corporation 
is  not  such  an  indispensable  party  that  it  must  be  joined,  though  its  joinder 
would  oust  the  jurisdiction  of  a  federal  court.'* 

Statutes  making  directors  jointly  and  severally  liable  for  money  wrongfully 
appropriated  by  them  do  not  impose  a  penal  liability.'® 

The  directors  of  a  corporation  are  not  trustees  of  a  trust,  so  as  to  be  estopped 
from  pleading  limitations  when  sued  for  acts  of  administration,  for  which  they 
have  been  subject  at  all  times  to  an  action  at  law,  and  where  the  action  is  origi- 
nally brought  to  wind  up  the  cCi-poration,  an  officer  who  is  plaintiff  may  set  up 
the  statute  of  limitations  in  case  of  an  amendment  which  charges  him  with  mis- 
feasance in  office.'® 

Where  the  receivers  of  an  insolvent  corporation  have,  with  the  approval  of 
the  court,  released  its  officers  from  all  claims,  a  stockholder  cannot  maintain  an 
action  against  them  for  negligence  and  breach  of  trust.'^ 

(§  15)  S.  Dealings  between  a  corporation  and  the  directors  or  other  officers, 
and  personal  interest  in  transactions. — Transactions  between  corporate  directors  and 
the  corporation  are  subject  to  judicial  scrutiny.'^  A  director  or  officer  of  a  cor- 
poration is  not  precluded  from  entering  into  contracts  with  it  for  his  personal 
benefit,  where  the  rights  of  the  corporation  are  fully  protected.'*     The  trustees 


2T.     Tilley  v.  CoykendaU,  172  N.  T.  587. 

28.  Wheeler  v.  Mineral  Farm  Consol.  Min. 
Co.    (Colo.)    71   Pac.   1101. 

29.  Evidence  held  not  to  show  misman- 
agement on  the  part  of  a  corporate  president 
IS  to  the  collection  of  debts,  and  allowance 
of  overdrafts — Johnson  v.  Stoughton  Wagon 
Co.  (Wis.)  95  N.  W.  394.  Evidence  held  in- 
sufficient to  charge  the  president  of  a  cor- 
poration with  negligence  in  regard  to  the 
diversion  of  corporate  funds  by  the  secre- 
tary— Id. 

30.  Evidence  held  insufficient  to  show 
fraudulent  mismanagement  of  a  controlling 
corporation  in  the  conduct  of  electric  light- 
ing companies — Cannon  v.  Brush  Elec.  Co.,  96 
Md.   446. 

31.  Hutchison  v.  Rock  Hill  Real  Estate  & 
Loan  Co.,  65  S.  C.  45. 


32.  Taylor  v.  Commonwealth  (Ky.)  75  S. 
W.   244. 

33.  Code  Civ.  Proc.  §§  447,  488,  1782 — Mil- 
ler v.  Barlow,   78  App.  Div.   (N.  Y.)   331. 

34.  Equity  rule  47 — Hunter  v.  Robbins, 
117  Fed.   920. 

3.1.  Const,  art.  12,  §  3 — Winchester  v. 
Howard.    136   Cal.   432.   69  Pac.   77. 

36.  Boyd  v.  Mutual  Fire  Ass'n  (Wis.)  94 
N.  W.  171. 

37.  Craig  v.  James,  71  App.  Div.  (N.  Y.) 
238. 

38.  Davis  V.  Thomas  A.  Davis  Co.,  63  N.  J. 
Eq.    572. 

39.  A  director  Is  bound  by  an  agreement 
to  execute  to  the  corporation  a  lease  of 
property  in  which  he  has  an  interest  under  a 
contract  with  the  owner  for  a  conveyance — ■ 
Veeder  v.  Horstmann,  85  App.  Div.  (N.  Y.) 
154. 


g  15S 


DEALINGS  OF  OFFICERS  WITH  CORPORATION. 


779 


of  a  corporation  may  contract  with  the  president  for  the  use  and  manufacture  of 
inventions  made  by  him,  he  not  voting  upon  the  resolution. *<*  The  manager  of 
a  mining  company  may  by  an  offer  to  use  certain  of  its  shares  which  he  owns  for 
the  benefit  of  the  corporation,  which  offer  is  accepted  by  corporate  resolution, 
make  a  valid  gift  to  the  cojupany  rendering  the  manager  liable  for  the  misuse  of 
funds  derived  from  the  sale  of  new  certificates  of  stock  issued  to  him  represent- 
ing the  subject  matter  of  the  gift.'*^ 

An  issuance  of  stock  by  a  corporation  to  its  president  is  valid  in  the  absence 
of  a  fraudulent  intent  or  conceahnont  of  facts  from  subsequent  stockholders, 
though  it  is  made  in  consideration  of  services  performed  by  the  president  in  secur- 
ing options  and  contracts  on  property  turned  over  to  the  corporation.**  A  loan 
may  be  made  by  a  director  to  his  corporation.*'  A  corporation  may  transfer  its 
assets  to  its  directors  who  are  indorsers  of  notes  of  another  corporation  to  reim- 
burse them  for  payments  made  thereon,  which  have  been  beneficial  to  the  first 
corporation.**  Notes  of  a  corporation  cannot  be  pledged  by  its  officers 'or  directors 
to  secure  personal  debts  of  the  president.** 

Secret  profits. — Officers  of  corporations  cannot  accept  secret  profits.*®  Where 
the  directors  of  a  corporation  negotiate  a  transfer  of  the  corporate  stock  from  the 
stockholders  through  themselves  to  another  corporation,  the  fact  that  after  the 
agreement  is  completed  they  enter  into  an  arrangement  with  the  new  corpora- 
tion whereby  they  are  to  continue  as  directors  therein  in  consideration  of  certain 
of  its  stock  and  funds  gives  the  stockholders  of  the  former  corporation  no  rights  in 
such  consideration,  there  being  no  evidence  that  it  was  secretly  contemplated  at 
the  time  of  the  first  arrangement.  Since  there  was  no  fiduciary  relation  there 
must  have  been  actual  misrepresentation,  and  the  burden  of  proof  of  fraud  is  on 
those  asserting  it.*^  The  stockholders  of  a  corporation  are  not  entitled  to  share 
in  commissions  earned  by  a  manager  of  a  department  on  individual  sales,  though 
he  has  given  drafts  on  the  corporation  in  settlement  where  he  has  paid  such 
drafts  by  his  personal  checks.** 

Where  directors  act  adversely  to  the  stockholders  in  the  contract,  the  contract 
is  illegal,  and  openness  of  actions  by  directors  adverse  to  the  stockholders'  inter- 
ests does  not  validate  them.*®  If  a  director  sell  its  property,  it  being  insolvent,  he 
cannot  apply  the  proceeds  to  a  corporate  debt  for  which  he  is  a  surety,  but  he  may 
apply  them  to  the  payment  of  a  creditor  for  whose  indemnification  he  has  signed 
a  bond  and  protected  the  corporate  property.^" 

Where  a  director  has  sold  stock  to  the  corporation  he  acting  at  the  meeting 


40.  The  royalty  fixed  being  fair,  the 
stockholders  cannot  attack  the  contract  as 
fraudulent — Burden  v.  Burden  Iron  Co.,  39 
Misc.    (N.  Y.)    559. 

41.  "Wheeler  v.  Mineral  Farm  Consol.  Min. 
Co.   (Colo.)   71  Pac.  1101. 

42.  The  president  used  a  portion  of  the 
stock  to  interest  other  persons  than  the  com- 
pany, and  retained  a  small  portion  for  him- 
self— Calivada  Colonization  Co.  v.  Hays,  119 
Fed.   202. 

43.  Off  V.  Jack,  104  111.  App.  655. 

44.  Kendall  v.  Klapperthal  Co.,  202  Pa. 
S96. 

45.  El  Capltan  Land  &  Cattle  Co.  v.  Bos- 
ton-Kansas City  Cattle  Loan  Co.,  65  Kan.  359, 
69  Pac.   332. 

46.  Where  a  corporation's  manager  sells 
Ita  entire  capital  stock  he  cannot  be  allowed 


to  retain  a  secret  compensation  from  the 
buyer — Barbar  v.  Martin  (Neb.)  93  N.  W. 
722. 

Walsh    V.    Goulden    (Mich.)    90    N.    W. 


47 

406. 
48, 
40 


Adams  v.  Burke,   201   111.   395. 

Contract  by  the  directors  of  an  Irriga- 
tion company  to  furnish  water  to  the  mem- 
bers of  an  association  to  which  the  directors 
belong — Goodell  v.  Verdugo  Canon  Water 
Co.,  138  Cal.  308,  71  Pac.  354.  An  agreement 
on  a  sale  of  street  railroad  properties  by 
which  the  purchasing  company  agrees  to 
operate  its  line  for  a  specified  space  of  time 
to  land  owned  by  the  directors  of  the  sell- 
ing company  is  void,  it  being  for  the  benefit 
of  the  directors,  nor  does  such  agreement 
confer  a  vendor's  lien — Scott  v.  Farmers'  3t 
Merchants'  Nat.  Bank  (Tex.)  75  S.  W.  7. 
50.     Graham  v.  Carr,  130  N.  C.  271. 


780 


CORPORATIONS. 


8  15S 


at  which  it  was  authorized,  the  sale,  though  not  binding  as  to  price,  may  be 
enforced  on  the  basis  of  the  actual  value  of  stock.^^ 

Purchase  of  corporate  property. — Wliere  an  officer  of  a  corporation  buys  its 
property  and  pays  for  it  in  part  with  the  corporate  stock  at  an  exaggerated  value, 
the  conveyance  may  be  set  aside.''^  Though  a  corporate  president  is  not  formally 
authorized  to  purchase  subscription  rights  to  stock  of  another  corporation,  he  is. 
if  he  purchased  at  the  direction  of  the  corporation,  estopped  from  denying  that 
he  purchased  as  the  corporation's  agent,  and  the  title  passes  to  the  corporation, 
and  the  fact  that  he  advances  the  purchase  money  from  his  own  funds  and  takes 
receipts  in  his  own  name  does  not  show  conclusively  that  he  purchased  individu- 
ally.®^ A  subsequent  vote  of  the  directors  authorizing  the  corporation  to  acquire 
a  controlling  interest  in  the  new  corporation  does  not  affect  the  title  previously 
acquired.^*  A  purchaser  from  the  officer  acquires  no  rights  against  the  corpora- 
tion, though  the  contract  to  acquire  the  subscription  rights  was  ultra  vires, 
against  puGlic  policy  and  unlawful,  and  if  the  purchase  was  void  as  to  the  cor- 
poration, title  vested  in  the  officer  individually.^®  Where  a  trustee  has  been 
appointed  by  the  stockholders  and  directors  of  an  insolvent  corporation,  it  may,  if 
it  act  in  good  faith,  sell  the  bonds  and  capital  stock  belonging  to  the  corpora- 
tion, to  a  director.®® 

Where  the  president  of  a  corporation  secures  title  to  land  in  consideration 
of  acts  to  be  performed  by  the  corporation,  he  will  be  regarded  to  hold  such  land 
as  a  trustee,  unless  there  is  a  showing  of  a  valid  authorization  in  him  to  take 
title." 

Compromise  of  claims. — Where  a  director  compromises  claims  against  a  cor- 
poration, he  is  entitled  to  credit  for  the  sums  paid  and  not  for  their  face,®*  and 
though  he  uses  his  o\vn  funds  in  the  purchase  of  claims  he  cannot  take  advantage 
of  reductions  which  he  secures.®® 

Mortgages  by  corporate  officers  to  one  of  their  number  to  secure  a  fictitious 
indebtedness  will  be  set  aside  though  also  executed  ostensibly  to  secure  other 
creditors  who  are  not  shown  to  have  ever  relied  on  them  or  demanded  their  execu- 
tion.®'' A  director  may  take  a  mortgage  from  the  corporation  as  security,  the 
corporation  not  being  insolvent.®^ 

Purchases  of  property  at  judicial  sales  or  after  title  passes  from  corporation.'^" 
— A  purchase,  by  a  director  in  good  faith,  of  property  which  has  passed  from  the 
corporation,  does  not  inure  to  the  benefit  of  the  corporation.''^  The  fact  that  a 
director  holding  land  of  the  corporation  in  trust  for  his  security  makes  a  sale 
out  of  which  he  is  subsequently  to  realize  a  profit  does  not  of  itself  make  the  sale 
voidable  if  it  is  approved  by  the  directors  after  a  complete  disclosure  of  the  facts 
and  is  for  full  value,  and  he  may,  after  a  bona  fide  sale,  control  the  land  for  the 


51.  Oliver  v.  Rahway  Ice  Co.  (N.  J.  Eq.) 
64   Atl.   460. 

r>2.  Purchase  by  secretary  and  treasurer — 
MiUer  v.  Brown   (Neb.)   95  N.  W.  797. 

r»3-55.  Manchester  St.  Ry.  Co.  v.  Williams. 
71  N.  H.  312. 

5G.     Graham  v.  Carr.  130  N.   C.   271. 

57.  Property  conveyed  to  the  president 
and  promoter  of  a  street  railroad  in  consid- 
eration of  the  extension  of  the  line  to  the 
land  of  the  grantor — Scott  v.  Farmers'  & 
Merchants'  Nat.  Bank   (Tex.)   75  S.  "W.  7. 

58.  Fishel  v.  Goddard   (Colo.)    69  Pac.  607. 

59.  Kroegher  v.  Calivada  Colonization  Co. 


119  Fed.  641;  Calivada  Colonizaton  Co.  v. 
Kroegher,  Id. 

60.  Macklem  v.  Fales  (Mich.)  89  N.  W. 
5S1. 

Gl.  Mechanics'  Bldg.  &  Sav.  Ass'n,  No.  2. 
202   Pa.    5S9. 

G2.  Evidence  held  sufficient  to  show  that 
a  director  purchased  the  property  of  a  cor- 
poration on  mortgage  sale,  at  less  than  Its 
actual  value,  rendering  him  chargeable  with 
subsequent  profits — Fishel  v.  Goddard  (Colo.) 
69   Pac.    607. 

03.  Purchase  of  a  forfeited  mining:  claim 
from  a  relocator — McDermott  Min.  Co.  v. 
McDermott,  27  Mont.  143,  69  Pac.  715. 


§  15S 


DEALINGS  OF  OFFICERS  WITH  CORPORATION. 


781 


purchaser  and  take  part  of  the  profits  of  ensuing  sales.'*  \Miore  a  director  has 
acquired  title  to  corporate  land  in  a  fair  and  legitimate  manner,  the  fact  that  the 
land  is  greater  in  extent  than  is  known  by  all  the  parties  at  the  time  of  transfer 
does  not  render  the  sale  fraudulent.^^ 

The  mere  fact  that  one  who  joins  with  others  in  the  purchase  of  a  corpora- 
tion's note  which  is  secured  by  mortgage  is  a  director  of  the  corporation  does  not 
render  his  subsequent  purchase  of  the  property  at  a  fair  foreclosure  sale  fraudu- 
lent.«« 

It  is  held  that  a  director  who  purchases  property  of  the  corporation  at  a 
mortgage  sale  may  be  responsible  to  judgment  creditors  for  any  difference  between 
the  value  of  the  property  and  the  amount  paid,"  and  the  fact  that  he  acquires 
title  to  mortgaged  property  through  foreclosure  entitles  him  only  to  repayment 
of  his  actual  outlay  with  interest."*  A  corporation  is  not  estopped  from  denying 
the  validity  of  the  director's  claim  to  the  excess  by  actions  showing  an  intent  to 
recognize  it.®* 

Where  two  corporations  have  entered  into  a  contract  to  acquire  the  title  to 
the  property  of  one,  the  president  of  one  corporation  cannot  acquire  title  to  the 
property  of  the  other  at  a  trustee's  sale,  it  being  a  mere  scheme  in  pursuance 
of  the  contract.'''*  An  action  at  law  in  favor  of  a  corporation  will  lie  to  recover  a 
large  salary  which  the  president,  as  majority  stockholder,  has  induced  the  direct- 
ors to  vote  to  him.'^  Where  there  are  but  two  stockholders  of  actual  interest  in 
the  corporation,  though  there  are  three  nominal  stockholders  who  are  also  direct- 
ors, the  actual  stockholder  holding  a  minority  of  the  stock  may  share  in  a  sum 
voted  to  the  majority  stockholder  as  salary,  the  votes  being  taken  at  meetings  in 
the  absence  of  the  minority  stockholder.'^ 

Compensation  secured  for  services  not  rendered  for  corporation. — Where  a 
trustee,  being  a  corporation,  names  its  president  as  receiver,  he  need  not  account 
to  it  for  fees  received,  if  the  by-laws  of  the  company  in  fixing  the  president's 
duties  do  not  state  that  he  shall  act  as  a  receiver.  He  is  not  prevented  from 
acting  by  a  by-law  providing  that  no  trusteeship  or  receivership  shall  be  accepted 
by  the  president  without  the  approval  of  the  executive  committee,  since  such 
bj'-law  is  to  be  regarded  merely  as  a  precaution  against  the  binding  of  the  corpora- 
tion." 

The  mere  nomination  of  the  president  as  receiver  does  not  furnish  a  con- 
sideration for  an  agreement  by  him  to  pay  the  trust  company  the  compensation 
received  by  him  in  such  capacity,  and  a  resolution  of  the  trust  company  directing 
its  counsel  to  ask  that  a  certain  person  named  be  appointed  as  a  receiver  seeks 
the  appointment  of  such  person  as  an  individual,  though  he  is  also  president 
of  the  trust  company.''*  If  it  is  sought  to  recover  such  compensation  on  the 
gi'ound  of  an  alleged   agreement  that  the  corporation  would   foreclose  the  deed 


64.  The  director  Implicated  did  not  vote 
at  the  meeting  at  which  the  offer  of  sale 
was  accepted  and  the  price  obtained  was  a 
fair  valuation — Tenison  V.  Patton,  95  Tex. 
284. 

05.     Tenison  v.  Patton,  95  Tex.   284. 

66.  Ready  v.  Smith.  170  Mo.  163. 

67.  The  amount  realized  on  subsequent 
sale  of  the  property  may  be  shown  as  tend- 
ing to  fix  its  value,  and  for  this  purpose,  the 
director  may  be  questioned  as  to  what  was 
the  amount  realized  on  the  resale  as  shown 
by  his  books — Fishel  v.  Goddard  (Colo.)  69 
Pac.  607. 


68.  Kroeg-her  v.  Calivada  Colonization  Co., 
119  Fed.  641;  Calivada  Colonization  Co.  v. 
Kroegher,  Id. 

69.  Kroegher  v.  Calivada  Colonization  Co., 
119  Fed.  641;  Calivada  Colonization  Co.  v. 
Kroegher,   Id. 

70.  Scott  V.  Farmers'  &  Merchants*  Nat. 
Bank  (Tex.)   75  S.  W.  7. 

71.  Adams  v.  Burke,  102  111.  App.  148. 

72.  Adams  v.   Burke,   201   111.   395. 

73.  Citizens'  Trust  &  Deposit  Co.  v.  Tomp- 
kins   (M(l.)    54  Atl.   617. 

74.  Citizens'  Trust  &  Deposit  Co.  v.  Tomp- 
kins  (Md.)    54  Atl.   617. 


782 


CORPORATIONS. 


§    15S 


of  trust  without  charge  provided  the  president  was  appointed  receiver,  he  agree- 
ing to  pa}'  the  corporation  such  compensation  as  he  was  allowed  for  so  acting,  it 
must  be  alleged  that  at  the  time  the  corporation  relinquished  its  right  it  had 
the  right  to  make  a  foreclosure  sale,  and  also  that  the  corporation  had  made  such 
sale  and  had  not  made  any  charge  or  received  any  compensation  therefor.''' 

After  a  corporation  has  sold  property  of  which  it  is  in  charge,  the  fact  that 
one  of  its  officers  agrees  to  superintend  the  use  thereof  does  not  show  a  contract 
to  act  against  the  best  interests  of  the  corporation,  and  the  officer  cannot  after- 
ward question  such  a  contract,  if  the  corporation  does  not  object.''^ 

Use  of  patents. — The  corporation  may  be  entitled  to  profits  made  by  its 
president  and  general  manager  on  an  invention  made  by  him  and  manufactured 
by  the  corporation.'''^  Where  a  corporation  has  been  infringing  a  patent,  its 
executive  officers  by  a  transfer  of  their  stock  and  purchase  of  the  patent  acquire 
no  rights  allowing  their  assignee  to  compel  the  corporation  to  pay  the  profits 
resulting  from  the  infringement.'^ 

Ratification  of  dealings. — Stockholders  may,  at  a  regularly  called  meeting, 
ratify  a  contract  in  which  a  director  is  interested  and  which  is  voidable  at  the 
option  of  the  corporation,  and  in  case  they  have  notice  of  the  directors'  interests 
they  are  chargeable  with  proper  inquiry  as  to  the  extent  thereof.'® 

Mere  silence  for  two  years  with  knowledge  of  an  illegal  contract  by  the  direct- 
ors is  not  a  ratification,  nor  can  such  a  contract  be  ratified  by  a  subsequent  board 
of  directors,  the  majority  of  which  is  the  same  as  that  which  first  authorized  it.^° 
Where  the  directors  have  entered  into  a  contract  illegal  as  for  their  own  benefit, 
the  fact  that  the  corporation  has  taken  other  steps  against  other  parties  in  recog- 
nition of  the  contract  does  not  estop  it  and  its  stockholders  from  setting  up  the 
illegality,  nor  does  estoppel  result  from  the  fact  that  the  wrongdoing  directors 
allow  expenditures  to  be  made  on  the  faith  of  the  contract.*^  Where  mortgages 
are  invalid,  a  subsequent  reference  to  them  as  being  due  in  a  new  mortgage  does 
not  show  an  intention  to  validate  them.^^  Where  directors  have  sold  the  corpora- 
tion's stock  under  such  circumstances  that  they  cannot  enforce  the  full  price,  a 
payment  on  account  to  the  corporation  may  be  applied  to  an  implied  promise 
to  pay  what  the  stock  was  in  reality  worth.*' 

Repudiation. — Wliere  the  contract  is  illegal,  the  motive  of  subsequent  direct- 
ors in  repudiating  it  is  immaterial  as  far  as  the  other  party  is  concerned.** 

Remedies  in  case  of  wrongful  transactions. — Creditors  are  not  entitled  in  the 
first  instance  to  reach  profits  gained  by  a  director  in  fraud  of  the  corporation,  the 
right  of  action  being  in  the  corporation.  Mere  contract  creditors  cannot  reach 
equitable  assets  in  the  hands  of  a  director.     A  creditor  cannot  recover  a  profit 


75.  citizens'  Trust  &  Deposit  Co.  v.  Tomp- 
kins  (Md.)    54  Atl.   617. 

7«.  Sale  of  a  patent  for  the  manufacture 
of  a  brake  beam  and  contract  to  superintend 
the  manufacture  of  brake  beams  and  pur- 
chase supplies  on  the  best  terms  possible, 
the  machinery  used  in  the  manufacture  re- 
maining in  the  building  of  the  corporation 
and  the  business  being  distinct — Pungs  v. 
American  Brake  Beam  Co.,  200  111.  306. 

77.  Corporation  was  held  entitled  to  an 
accounting  where,  without  knowledge  of  the 
directors,  the  president  secured  the  manufac- 
ture of  an  article  patented  by  him  by  the 
corporation,  and  after  adding  a  certain  per- 
centage to  the  actual  cost  of  production  as 
profit    sold    them    to    himself    under    an    as- 


sumed name  and  placed  them  on  the  market 
at  a  higher  figure — D.  M.  Steward  Mfg.  Co. 
V.  Steward  (Tenn.)  70  S.  W.  808;  Montague 
V.  Same,  Id. 

78.  New  York  Grape  Sugar  Co.  V.  Buffalo 
Grape  Sugar  Co.,  24  Fed.  604. 

79.  Hodge    v.    Steel    Corp.     (N.    J.    L.)     54 
Atl.  1. 

80.  Oliver   v.   Ice   Co.    (N.   J.   Eq.)    54   Atl. 
460. 

81.  Goodell  V.  Water  Co.,  138  Cal.   308,  71 
Pac.  354. 

82.  S3.     Oliver  v.  Ice  Co.  (N.  J.  Eq.)  54  Atl. 
460. 

84.     Goodell  V.  Water  Co..  138  Cal.  308.  71 
Pac.  354. 


§  16B 


RIGHTS  AND  REMEDIES  OF  CREDITORS. 


783 


made  by  the  director  in  the  purchase  of  property  in  which  the  corporation  was 
equitably  interested,  in  the  absence  of  a  showing  that  the  corporation  ratified  the 
act  so  as  to  render  it  valid  as  to  him  or  that  there  was  fraud  and  collusion.*^ 
The  cause  of  action  is  barred  if  not  brought  within  twelve  years  from  the  happen- 
ing of  the  facts  on  which  it  accrued,  there  being  no  concealment  or  nonresidence.** 

Where  it  is  sought  to  reach  the  profits  gained  by  a  director  from  a  purchase 
of  the  corporation's  property  in  foreclosure  proceedings,  the  corporation  is  a  nec- 
essary party.*^ 

Where  the  directors  are  sued  Jointly  for  a  conversion  of  the  goods  of  a  cor- 
poration, and  one  director  is  admitted,  by  the  answer  in  which  he  joins,  to  be 
solely  interested  in  the  goods,  judgment  may  be  rendered  against  him  alone.  In 
such  an  action,  it  is  not  necessary  that  the  judgment  show  a  finding  as  to  what 
the  goods  were  worth  at  the  time  of  sale,  if  there  is  no  showing  that  the  value 
found  was  as  of  any  other  day.** 

In  a  proceeding  to  charge  a  director  with  profits  gained  by  him  from  a 
purchase  of  the  corporation  property  at  a  mortgage  sale,  a  supplemental  com- 
plaint and  an  original  complaint  vdll  be  read  together  in  determining  whethei* 
it  was  alleged  that,  at  the  time  the  director  purchased,  the  debt  was  in  exist- 
ence.*®    Evidence  must  conform  to  the  pleadings.*" 

§  16.  Rights  and  remedies  of  creditors  of  corporations.  A.  The  relation  of 
creditors — Assets  as  a  trust  fund. — Though  by  statute  in  New  Jersey  an  equal 
and  pro  rata  distribution  of  the  assets  in  an  insolvent  corporation  among  its 
creditors  is  secured,  such  equality  between  the  creditors  is  not  based  on  a  trust 
theory  such  as  is  adopted  in  the  federal  jurisdictions.®^  In  New  Jersey  apart 
from  the  direct  effect  of  statutes,  an  insolvent  corporation  has  the  same  dominion 
over  its  assets,  and  its  creditors  have  the  same  power  to  reach  those  assets,  as  in 
case  of  an  insolvent  natural  person.®*  In  Washington,  the  assets  of  an  insolvent 
corporation  being  regarded  as  a  trust  fund,  an  attachment  levied  the  day  before 
the  appointment  of  a  receiver  may  be  set  aside.®' 

(§16)  B.  Rights  and  remedies  of  creditors  against  the  corporation.^* — One 
holding  a  cause  of  action  for  tort  arising  before  the  corporation  was  declared  insolv- 
ent, but  reduced  to  judgment  thereafter,  may  share  on  an  equality  with  other  credit- 
ors.®'^ Under  an  agreement  to  advance  money  to  a  corporation  so  long  as  a 
certain  branch  of  the  business  should  be  continued,  the  advances  may  be  declared 
due  at  a  reasonable  time  after  the  cessation  of  the  business.®' 


85-87.     Ready  v.  Smith,  170  Mo.   163. 
88,  89.     Fishel   v,   Goddard    (Colo.)    69    Pac. 
607. 

90.  "Where  It  Is  pleaded  that  the  contract 
was  illegal  on  account  of  adverse  interest, 
evidence  as  to  whether  the  irrigation  com- 
pany had  less  water  than  required  hy  its 
needs  and  could  not  make  further  develop- 
ment is  immaterial — Goodell  v.  Water  Co., 
138  Cal.  308,  71  Pac.  354. 

91,  92.  Gallagher  v.  Asphalt  Co.  of  Amer- 
ica (N.  J.  Eq.)   55  Atl.  259. 

(Note)  According  to  the  great  weight  of 
authority,  the  relation  between  a  corpora- 
tion and  its  creditors  is  simply  that  of  debt- 
or and  creditor.  A  corporation,  although 
Insolvent,  holds  Its  property  as  an  insolvent 
natural  person  does,  and  its  assets  are  not  a 
trust  fund  for  the  benefit  of  creditors  in  any 
T)roper   sense.     If   they   can    be   said    to   be   a 


trust  fund  in  any  sense.  It  Is  only  In  the 
sense  that  they  cannot  be  distributed  among 
or  withdrawn  by  the  stockholders,  or  con- 
veyed or  given  away  without  consideration, 
leaving  creditors  unpaid,  and  in  the  sense 
that,  when  the  corporation  has  been  dissolv- 
ed or  gone  into  the  hands  of  a  receiver,  its 
assets  will  be  distributed,  subject  to  valid 
liens  thereon,  for  the  equal  benefit  of  all 
the  creditors — Clark  &  Marshall,  Corpora- 
tions, Vol.  Ill,  p.  2319. 

93.  Washington  Liquor  Co.  v.  Cafe  Co.,  28 
Wash.  176,   68  Pac.  444. 

94.  Priority  of  judgment  for  tort,  see 
ante,  §  9. 

95.  Corp.  Act,  §§  75-77,  86;  Pub.  Laws  1896 
— Lehigh  &  W.  Coal  Co.  v.  Transportation 
Co..  63  N.  J.  Eq.  107. 

98.  Five  years  Is  a  reasonable  time;  the 
election    is   sufficiently   shown   by  the   begin- 


784 


CORPORATIONS. 


§  16B 


Compromise  of  claims. — Where  it  is  asserted  that  a  creditor  had  agreed  to 
accept  a  new  issue  of  stock  in  lieu  of  a  portion  of  his  claim,  it  cannot  be  shown 
that,  subsequent  to  such  agreement,  the  corporation  was  in  bad  financial  condi- 
tion, nor  can  the  creditor  be  allowed  to  testify  that  if  he  had  thought  the  stock 
was  issued  as  a  witness  testified,  he  would  not  have  kept  it." 

Preferences. — The  wages  of  a  superintendent  are  not  within  the  intendment 
of  a  statute  giving  preference  to  the  wage  claims  of  employes  or  operatives  of 
insolvent  corporations.®^  A  formal  assignment  made  after  insolvency  effectuat- 
ing a  previous  oral  assignment  made  during  insolvency  does  not  create  a  prefer- 
ence.®®  Payments  made  to  a  corporation  under  mistake  as  to  indebtedness,  which 
are  not  kept  separately,  do  not  become  entitled  to  preference  over  other  corporate 
debts.^  One  who  advances  money  to  a  corporation  for  a  specific  use  and  deposits 
it  with  a  trust  company,  he  to  be  repaid  by  the  receipt  of  a  certain  rebate  on 
each  specific  piece  of  certain  property  purchased  under  the  agreement,  is  in  the 
position  of  a  general  creditor.^ 

Where  a  corporation  is  in  the  habit  of  drawing  against  shipments  of  goods 
and  disposing  of  the  drafts,  the  purchaser  being  given  credit  for  the  amount  of 
the  invoice,  it  does  not  create  the  relation  of  creditor  of  the  corporation  in  the 
purchaser  of  a  draft,  making  the  delivery  of  such  draft  after  insolvency  a  pref- 
erence.' Where  the  transfer  of  assets  of  an  insolvent  corporation  to  a  creditor  is 
an  invalid  preference,  the  preferred  creditor  may  participate  in  such  assets  with 
other  creditors  on  the  transfer  being  held  invalid.*  A  creditor  having  a  lien 
on  a  specific  portion  of  the  corporate  property  who  brings  an  action  to  secure  the 
application  of  the  general  property  to  its  debts  is  not  entitled  to  preference  in 
the  funds  obtained  if  the  specific  property  on  which  he  has  a  lien  has  not  been 
or  is  to  be  segregated,  and  such  suit  brought  in  behalf  of  all  the  creditors  does 
not  entitle  the  one  bringing  it  to  a  preference.* 

Right  to  reach  dividends  wrongfully  paid. — Under  statutory  provisions  mak- 
ing stockholders  liable  for  stock  refunded  to  them  before  payment  of  debts  for 
which  it  is  liable,  stockholders  of  insolvent  corporations  are  liable  to  creditors 
for  the  amount  that  dividends  have  reduced  the  capital  stock.®  Where  rents  of 
corporate  property  are  distributed  in  the  form  of  a  dividend  among  stockholders, 
they  are  not  impressed  with  a  trust  or  lien  in  favor  of  general  creditors,  neither 
insolvency  nor  a  fraudulent  purpose  being  shown.'^  In  a  proceeding  to  compel 
payment  of  a  certain  simi  from  the  net  earnings  of  a  corporation  before  distribu- 
tion among  the  stockholders,  the  stockholders  who  claim  the  right  to  an  immediate 
distribution  are  necessary  parties.*  The  cause  of  action  to  reach  dividends  im- 
properly paid  stockholders  given  by  statute  in  some  states  does  not  accrue,  until 
executions  against  the  corporation  have  been  returned  nulla  bona.* 


nlng  of  an  action  and  the  lender  is  entitled 
to  interest  from  the  date  of  the  election  only 
—Burke  V.  Sidra  Bay  Co.  (Wis.)  92  N.  W. 
568. 

97.  Reid  V.  Paint  Co.    (Mich.)    94  N.  W.   3. 

98.  Rev.  Sts.  1899,  §  1006 — PuUis  Bros. 
Iron  Co.  V.  Boemler,  91  Mo.  App.  85. 

99.  Corp.  Laws,  §  48,  Laws  1892,  c.  688 — In 
re  Rogers  Const.  Co..  79  App.  Div.  (N.  Y.) 
419. 

1.  Lacy  V.  Association.  132  N.  C.  131. 

2.  Miller  v.  Barlow,  78  App.  Div.  (N.  Y.) 
331. 

3.  Hodson  v.  Karr,  96  Md.  475. 


4.  National  Wall  Paper  Co.  v.  Bank  (Neb.) 
93  N.  W.  1004. 

5.  Moore  v.  Drug  Co.,  135  Ala.  287. 

6.  Comp.  Laws  1897,  §  7057 — American 
Steel  &  Wire  Co.  v.  Eddy  (Mich.)  89  N.  W. 
952. 

7.  New  Hampshire  Sav.  Bank  v.  Richer 
(C.  C.  A.)    121  Fed.   956. 

8.  Dupignac  v.  Bernstrom,  37  Misc.  (N. 
Y.)    677. 

9.  Limitations  against  a  bill  in  equity  un- 
der Rev.  St.  Me.  1857,  c.  46,  §  34,  do  not  begin 
to  run  until  such  time — Bowker  v.  Hill,  115 
Fed".   528. 


§  16B 


FRAUDULENT  CONVEYANCES.  LIENS. 


785 


Fraudulent  conveyances.^^ — On  a  bill  to  set  aside  a  deed  as  fraudulent  to 
corporate  creditors,  objection  cannot  be  made  that  the  deed  was  not  duly  author- 
ized by  the  directors  or  executed  by  the  proper  ofBcers.^^ 

Mortgage  as  fraudulent  conveyance. — The  fact  that  a  corporation  is  insolv- 
ent or  financially  embarrassed  does  not  prevent  it  from  mortgaging  its  property 
in  good  faith  to  secure  extension  of  a  prior  debt,  and  for  further  money  to  be 
used  in  its  business  if  it  is  yet  a  going  concern.^^  A  mortgage  which  operates  to 
secure  two  stockholders  the  repayment  of  the  purchase  price  of  their  stock  is 
invalid  to  creditors  and  other  stockholders,^^  but  the  corporation  may  execute  a 
mortgage  to  secure  the  payment  for  land  conveyed  to  it  or  of  money  expended 
for  its  benefit.^*  The  statutory  prohibition  of  the  transfer  of  property  in  con- 
templation of  insolvency  does  not  affect  a  mortgage  for  an  actual  presently  pass- 
ing consideration,  though  possible  insolvency  may  have  been  in  the  minds  of  the 
parties,  but  such  a  mortgage  is  void  in  so  far  as  it  attempts  to  secure  pre-existing 
debts.^'* 

Liens  on  corporate  property. — Under  a  statutory  provision  giving  a  lien  to 
laborers  and  materialmen  on  the  realty  and  personalty  of  a  corporation,  treasury 
bonds  secured  by  mortgage  on  its  property  are  not  to  be  regarded  as  personalty.^' 
Such  a  lien  does  not  extend  to  the  property  of  a  corporation  deposited  in  a  ware- 
house, the  warehouse  receipts  for  which  have  been  transferred  as  collateral  security 
for  money  borrowed  by  the  corporation.^''  A  lien  may  be  had  under  a  statute 
in  favor  of  corporate  employes,  though  the  petition  and  notice  is  insufficient  to 
sustain  a  mechanic's  lien.^*  Where  a  statute  conferring  a  lien  for  labor  on  cor- 
porate property  does  not  require  the  notice  to  describe  the  corporate  property,  the 
corporate  earnings  may  be  applied  to  the  payment  of  the  lien.^^  A  laborer  may 
have  priority  of  lien  for  wages  accruing  after  levy  of  an  execution  against  the 
corporation,  where  it  appears  that  it  was  for  the  judgment  creditors'  interest 
as  well  as  that  of  the  corporation  that  the  corporate  business  be  continued.^" 
Attorney's  fees  may  be  allowed  in  such  a  proceeding  where  they  are  allowed  in 
mechanic's  liens  and  the  mechanic's  lien  statute  is  made  applicable  to  proceed- 
ings under  the  statute  conferring  the  lien  on  the  corporate  property.^^  A  labor- 
er's lien  may  be  valid  against  an  insolvent  corporation  though  sworn  to  and  filed 
after  proceedings  to  wind  up  the  corporation  have  been  begun,  and  may  be  pro- 
tected by  filing  a  petition  in  such  proceedings  within  the  statutory  period." 
Where  it  is  sought  to  enforce  a  lien  on  corporate  property,  the  stockholders  and 
non-lien-holding  creditors  are  not  necessary  parties.^*  If  the  debt  is  adjudged  no 
lien,  the  decree  is  appealable.^* 

Attachment  and  execution. — By  statute,  corporate  property  may  be  made  sub- 
ject to  attachment  on  mesne  process  and  execution.^''     Where  the  corporation  is 


10.  On  an  issue  of  the  overvaluation  of  a 
partnership  property  transferred  to  a  corpo- 
ration, evidence  of  the  amount  of  sales  of 
the  partnership  during  its  existence  is  ad- 
missible to  determine  the  value  of  the  good 
will — White  Corbin  &  Co.  v.  Jones,  79  App. 
Div.   (N.  Y.)   373,  12  N.  Y.  Ann    Cas.  277. 

11.  Swentzel  v.  Investment  Co.,  168  Mo. 
272. 

12.  Coler  V.  Allen  (C.  C.  A.)    114  Fed.   609. 

13.  14.     Reed  v.  Specialty  Co.,   64  N.  J.  Eq. 

831. 

15.  Laws  1896,  p.  298,  §  64— Reed  v.  Spe- 
cialty Co.,  64  N.  J.  Eq.   231. 

16.  Code  1887,  §  2485— Millhiser  Mfg.  Co. 
▼.  Mills  Co.    (Va.)    44  S.  E.  760. 

Cur.  Law — 50. 


17.  Millhiser  Mfg.  Co.  v.  Mills  Co.  (Va.) 
44  S.  E.   760. 

18.  A  notice  Is  sufficient  If  It  set  forth 
the  date  of  the  employment,  the  name  of  the 
corporation  and  the  amount  of  the  lien. 
Burns'  Rev.  Sts.  1901,  §§  7248,  7249 — Forrest 
V.  Corey,  29  Ind.  App.  159. 

19.  20.     Forrest  v.  Corey,  29  Ind.  App.  159. 

21.  Burns'  Rev.  St.  1901,  §  7253 — Forrest  v. 
Corey,  29  Ind.  App.  159. 

22.  Kahle  v.  Oil  Co.,  51  W.  Va.  313. 

23.  Godchaux  v.  Morris  (C.  C.  A.)  121  Feid. 
482. 

24.  Kahle  v.  Oil  Co.,  51  W.  Va.  318. 


786 


CORPORATIONS. 


§  16B 


insolvent,  an  attachment  b}'  one  creditor  may  be  set  aside  on  a  subsequent  pro- 
ceeding to  wind  up  the  corporation.-^  Where  a  corporation  is  engaged  in  public 
or  quasi  public  service,  its  property  incident  to  such  service  is  not  subject  to  sale 
on  execution  unless  it  is  so  provided  by  statute.-^ 

Suits  to  wind  up  and  dissolve. — Under  the  New  Jersey  statute  defining  the 
persons  authorized  to  maintain  a  proceeding  under  the  insolvent  corporation  act, 
the  word  "creditor"  will  be  regarded  as  including  all  persons  so  related  to  the 
corporation  and  its  assets  as  to  be  entitled  to  a  share  of  what  is  divided  among 
creditors.^*  The  fact  that  a  federal  court  has  taken  jurisdiction  of  an  action  by 
a  creditor  against  the  corporation,  and  placed  the  assets  in  the  hands  of  a 
receiver,  will  not  prevent  the  maintenance  in  a  court  of  Xew  Jersey  of  a  pro- 
ceeding, under  a  New  Jersey  statute,  to  enjoin  the  corporation  from  the  exercise 
of  its  franchise,  since  the  proceeding  is  not  pecuniary  in  its  nature  so  as  to  include 
any  of  the  matters  of  which  the  federal  court  has  taken  jurisdiction  on  the  ground 
of  the  diversity  of  citizenship.-®  Under  certain  statutes,  proceedings  provided  for 
the  benefit  of  creditors  for  the  enforcement  as  against  the  directors,  trustees, 
officers,  or  stockholders  on  account  of  any  liability  created  by  law,  the  action 
when  once  begun  by  a  creditor  is  no  longer  subject  to  his  control,  and  cannot  be 
dismissed  without  the  consent  of  all  creditors  who  appear  and  prosecute.^" 

Assignment  for  benefit  of  creditors. — The  lien  of  a  judgment  entered  on  a 
judgment  note  is  not  displaced  by  a  voluntary  assignment  executed  for  such  a 
purpose  by  the  vice-president,  who  was  a  majority  stockholder,  without  authority 
from  the  directors.^^  An  assignee  for  creditors  of  a  corporation  may  acquire  a  good 
title,  though  the  deed  of  assignment  was  not  authorized  by  a  vote  of  the  ma- 
jority of  the  stock  as  provided  by  the  articles  of  incorporation  prior  to  its  execu- 
tion under  authority  of  the  board  of  directors,  especially  where  for  four  years 
the  stockholders  have  not  questioned  the  validity  of  the  assignment.'^ 

The  assignment  may  be  avoided  by  an  action  by  the  creditors  ta  enforce  their 
claims  against  the  corporation  where  by  statute  it  is  provided  that  any  convey- 
ance of  the  corporation's  property  shall  be  void  as  against  prior  creditors  in  case 
they  commence  proceedings  to  enforce  their  claims  within  a  stated  time  after  the 
registration  of  the  conveyance.  Such  action  in  case  the  corporate  assets  are  not 
thereby  increased  does  not  confer  any  lien  in  behalf  of  the  creditors  as  against 
the  corporation's  receiver.'' 

Insolvency  proceedings. — The  corporation  is  not  insolvent  by  reason  of  the 
mere  fact  that  it  cannot  pay  its  obligations  in  cash  as  they  become  due,  where  it 
is  not  yet  a  fully  going  concern  and  the  returns  of  its  business  have  not  yet 
matured,  though  their  amount  is  greatly  in  excess  of  its  liabilities.'*     Holders  oi 


25.  Rev.  St.  1883,  c.  46,  §  20 — Poor  v.  Cha- 
pln,  97  Me.   295. 

26.  WashinsTton  Liquor  Co.  v.  Cafe  Co.,  28 
Wash.    176.   68   Pac.   444. 

27.  Sherman  County  Irr.  &  Water  Power 
&  Imp.  Co.  V.  Drake   (Neb.)   91  N.  W.  512. 

2S.  A  trust  company  which  has  entered 
Into  a  contract  with  a  corporation  to  issue 
certificates  secured  by  stocks  and  bonds  of 
the  corporation,  the  corporation  to  pay  a 
certain  amount  of  money  annually  to  the 
trust  company  for  distribution  among  the 
certificate  holders,  is  a  creditor  entitled  to 
maintain  an  action  under  the  Insolvent  Cor- 
poration act  (Act  1829.  Pub.  Laws,  p.  58)  — 
Gallagher  v.  Asphalt  Co.  (N.  J.  Ch.)  55  Atl. 
269. 


29.  Bill  under  Insolvent  Corporation  act 
1829,  Pub.  Laws,  p.  58 — Gallagher  v.  Asphalt 
Co.   (N.  J.  Ch.)   55  Atl.  259. 

30.  Action  brought  under  Rev.  St.  1898,  5 
3223,  cannot  be  otherwise  dismissed  before 
final  judgment — Williams  v.  Brewster  (Wis.) 
93  N.  W.  479. 

31.  A  judgment  note  was  reduced  to  a 
judgment  before  ratification  of  the  assign- 
ment— Friedman  v.  Lesher,  198  111.  21. 

32.  Blanton  v.  Kentucky  Distilleries  & 
Warehouse  Co..  120  Fed.  318. 

33.  Code.  1883.  §  685 — Fisher  v.  Western 
Carolina  Bank  (N.  C.)   44  S.  E.  601. 

34.  Joseph  V.  Raff,  82  App.  Div.  (N.  Y.) 
47. 


§  16B 


INSOLVENCY.  RECEIVERSHIP. 


787 


a  claim  against  an  insolvent  corporation  may  come  in  at  any  time  before  final 
distribution.^^  Stockholders  cannot  intervene  in  insolvency  proceedings  to  set 
up  a  defense  not  available  to  the  corporation."''  Creditors  are  entitled  to  share 
in  tlie  assets  of  an  insolvent  corporation  in  proportion  to  their  respective  claims 
without  being  parties  to  a  suit  against  the  trustee  holding  such  assets.^^  If 
provisions  for  the  allowance  of  attorney's  fees  on  the  collection  of  notes  are  valid 
under  the  law  of  the  state,  they  may  be  allowed  in  a  federal  court  where  on 
insolvency  of  the  corporation,  the  creditors  employ  attorneys  to  prove  their  claims 
in  a  creditors'  suit  in  which  actions  at  law  on  claims  are  enjoined.^* 

ReceiversJiip  on  insolvency. — The  appointment  of  a  receiver  for  an  insolvent 
corporation  sought  by  creditors  on  the  ground  of  misapplication  of  the  assets  is 
within  the  discretion  of  the  court. ^^  If  the  statute  provides  that  a  receiver  may  be 
appointed  on  insolvency,  there  need  be  no  other  prerequisites.^"  The  appointment 
of  a  receiver  is  justified  by  the  payment  of  certain  creditors  in  full  after  knowl- 
edge of  the  inability  to  pay  all  claims  of  similar  rank.'*^ 

The  receiver  of  a  corporation  possesses  no  power  or  authority  beyond  the 
Jurisdiction  of  the  court  appointing  him.*^ 

After  a  receiver  has  taken  control  of  the  assets  of  an  insolvent  corporation, 
no  creditor  by  an  action  subsequently  commenced,  or  a  judgment  subsequently 
obtained,  can  acquire  a  superior  lien  upon  such  assets.*'  After  the  appointment 
of  a  receiver,  the  creditor  is  not  entitled  to  interest  on  his  claim,**  nor  can  interest 
be  allowed  as  between  preferred  and  unpreferred  creditors.*'^  Though  a  creditor 
hold  a  lien,  if  such  lien  is  not  enforced,  but  the  claim  is  paid  from  the  general 
funds  on  a  receivership,  he  cannot  have  interest  after  the  appointment.**  The 
fact  that  a  charter  gives  a  preference  on  dissolution  to  debts  which  the  corporation 
owes  as  a  trustee  does  not  create  a  preference  for  interest  thereon.*^ 

Where  a  receiver  is  defending  an  action  against  a  corporation,  intervention 
by  a  stockholder  and  creditor  will  not  be  allowed  unless  the  receiver  is  acting 
fraudulently  or  to  the  prejudice  of  interests  which  he  should  protect.  A  mere 
interest  as  a  stockholder  in  the  corporation  will  not  confer  the  right.**  Where  a 
trustee  has  brought  a  bill  to  secure  the  sale  of  certificates  pledged  by  the  cor- 
poration, the  receivers  will  not  be  required  to  answer  setting  up  certain  facts  at 
the  request  of  a  stockholder  in  case  they  allege  that  they  have  inquired  into  such 
facts  and  found  them  without  foundation.*^ 

Creditors  who  have  not  appeared  before  the  referee  appointed  to  state  a 
receiver's  account  are  not  entitled  to  notice  of  filing  of  his  report.^" 


S5.  People  V.  American  Loan  &  Trust  Co., 
39  Misc.   (N.  Y.)   647. 

36.  Cumberland  Lumber  Co.  v.  Clinton 
Hill  Lumber  Co.   (N.  J.  Ch.)   54  Atl.   452. 

37.  National  Wall  Paper  Co.  v.  Columbia 
Nat.  Bank   (Neb.)   93  N.  W.  1004. 

38.  South  Carolina  contract — Richmond 
Guano  Co.  v.  Farmers'  Cotton  Seed  Oil  Mill 
&  Ginnery.  119  Fed.   709. 

39.  The  Anvil  v.  Savery.  116  Ga.  321. 

40.  2    Ballinger's  Ann.   Codes  &  St.    §  5456 

New  York  Nat.  Exch.  Bank  v.  Metropolitan 

Sav.  Bank,  28  Wash.  553,  68  Pac.  905. 

41.  The  Anvil  v.  Savery.  116  Ga.  321. 

42.  A  New  York  receiver  cannot  secure 
control  of  assets  in  Pennsylvania  as  against 
creditors  in  such  state,  though  the  domestic 
creditors  issue  no  process,  acquire  no  lien 
and  make  no  demand  for  payment  out  of 
assets  In  the  hands  of  the  ancillary  receiv- 
er within  the  state  until  after  the  fund  was 


demanded  by  the   foreign   receiver — Frowert 
V.   Blank.   205  Pa.   299. 

43.  Clark  v.  Bacorn  (C.  C.  A.)  116  Fed. 
617. 

44.  Though  he  may  have  had  a  Hen  on  the 
property  giving  him  a  priority,  but  there 
was  no  attempt  to  enforce  such  lien — Solo- 
mons V.  American  Bldg.  &  Loan  Ass'n,  116 
Fed.    676. 

45.  People  V.  American  Loan  &  Trust  Co., 
172  N.  Y.  371. 

46.  Bates  v.  American  Bldg.  &  Loan  Ass'n 
(C.  C.  A.)    120  Fed.   1018. 

47.  People  V.  American  Loan  &  Trust  Co., 
70  App.  Div.   (N.  Y.)   579. 

48.  Hosmer  v.  Standard  Shoe  Mach.  Co., 
39  Misc.   (N.  Y.)   204. 

49.  Land  Title  &  Trust  Co.  v.  Asphalt  Co., 
121  Fed.   192. 

50.  People  V.  American  Loan  &  Trust  Co., 
.39  Misc.   (N.  Y.)   647. 


788 


CORPORATIONS. 


§   16B 


Where  the  court  in  an  action  against  the  corporation  has  appointed  a  receiver 
for  the  protection  of  the  property  pending  litigation,  its  power  over  the  subject- 
matter  is  not  exhausted  until  the  objects  of  the  suit  have  been  attained. ^^ 

Disiribution  of  asaets. — A  judgment  in  an  action  by  a  receiver  showing  how 
much  of  the  debtor's  claim  should  be  discharged  does  not  create  a  preference  over 
other  corporate  debts.*-  Fees  of  an  attorney  acting  for  a  corporation  cannot  be 
preferred,  where  his  services  did  not  create  any  additional  assets  or  were  rendered 
in  resisting  the  appointment  of  a  receiver  or  matters  not  in  judicial  proceedings  or 
not  brought  to  judgment."'  Costs  of  an  action  brought  by  an  insolvent  corpora- 
tion while  winding  up  its  affairs  are  preferred  claims.^*  Where  a  claim  is  based 
on  a  contract  void  as  to  all  creditors  and  the  objections  of  certain  creditors  are 
sustained,  such  ruling  inures  to  the  benefit  of  all.^*  though  it  is  held  also  that 
where,  on  objection  by  unpreferred  creditors,  certain  funds  are  diverted  from  the 
preferred  creditors,  they  may  be  shared  in  only  by  those  creditors  who  have  ex- 
cepted."® 

The  lien  of  a  judgment  is  not  divested  by  final  decree  dissolving  a  corpora- 
tion, appointing  a  permanent  receiver,  and  ordering  a  sale  of  the  realty  tliough 
the  judgment  is  not  referred  to  in  the  decree,  and  the  judgment  creditor  may  sell 
on  his  judgment,  the  sale  being  subject  to  order  of  court.*^ 

Sales  by  receiver. — The  code  provisions  authorizing  a  sale  in  partition  free 
from  lien  do  not  apply  to  sales  on  dissolution  of  the  corporation  for  insolvency.'^* 
Purchasers  at  a  receiver's  sale  of  corporate  property  take  free  from  all  claims 
except  such  as  are  declared  in  the  decree  not  to  be  prejudiced."*  One  purchasing 
at  a  receiver's  sale  with  notice  of  a  judgment  takes  subject  to  the  lien  of  such  judg- 
ment on  its  being  declared  valid  on  appeal  from  a  stockholder's  action  taking 
it.®"  The  receiver  must  either  redeem  existing  liens  or  satisfy  them  or  sell  sub- 
ject thereto."* 

Restraining  orders. — Xo  authority  to  grant  a  general  restraining  order  exists 
where  there  is  no  authority  to  appoint  a  receiver.®^ 

Remedies  on  mismanagement  by  receiver. — Wliere  a  receiver  has  been  re- 
moved and  a  new  one  appointed,  a  complaint  by  the  new  receiver  and  certain 
creditors  is  bad  for  a  misjoinder,  if  it  state  an  independent  cause  of  action  in 
favor  of  the  new  receiver  against  the  old  and  also  in  favor  of  the  creditors  against 
the  directors  and  certain  shareholders.  Such  a  proceeding  is  to  be  regarded  as 
a  creditor's  suit  authorized  for  the  purpose  of  winding  up  an  insolvent  corpora- 
tion.®* 


51.  Under  this  principle  It  was  held  that 
where  an  action  had  been  begv.n  by  former 
owners  of  water  rights  controlled  by  a  cor- 
poration to  enforce  specific  performance  of 
a  contract,  whereby  on  the  happening  of  cer- 
tain contingencies  the  title  to  a  canal  and 
appurtenances  owned  by  the  corporation 
should  pass  to  them  and  vest  in  a  new  cor- 
poration for  their  benefit,  and  in  such  action 
such  contract  had  been  ordered  enforced,  a 
receiver,  appointed  pending  litigation,  may 
be  directed  to  re-take  possession  of  the  prop- 
erty after  it  has  been  delivered  pursuant  to 
the"  decree  to  the  new  corporation  if  such 
new  corporation  has  refused  to  borrow  money 
to  discharge  indebtedness  incurred  during 
the  receivership,  and  has  acted  adversely  to 
the  interests  of  the  owners  of  the  water 
rights — La  Junta  &  Lamar  Canal  Co.  v.  Hess 
(Colo.)   "1  Pac.  415. 


52.  Lacey  v.  Clinton  Loan  Ass'n  (N.  C.)  43 

S.  E.  5S6. 

53.  People  v.   American  Loan  &  Trust  Co., 
70  App.  Div.    (N.  Y.")    579. 

54.  Ephraim  v.  Pacific  Bank,  136  Cal.  646, 

69  Pac.  436. 

55.  Olmstead    v.    Vance    &    Jones    Co.,    196 
111.  236. 

56.  People  V.  American  Loan  &  Trust  Co., 

70  App.  Div.   (N.  Y.)   579. 

n7,  58.     In  re  Coleman,   174  N.  Y.   373. 

59.  Scott    V.     Farmers    &    M.     Nat.     Bank 
(Tex.)    75  S.  "W.   7. 

60,  61.      In  re  Coleman,  174  N.  Y.  373. 

62.  Zeltner  v.  Henry  Zeltner  Brew.  Co.,  79 
App.  Div.    (N.  Y.)   136. 

63.  Rev.    St.    1S98.    §§    2316-3228 — Boyd    v. 
Mut.  Fire  Ass'n   (Wis.)   90  N.  W.  1086. 


§   16C 


RIGHTS  OF  MORTGAGEES. 


789 


(§  16)  C.  Rights  of  corporate  mortgagees  and  bondholders.  Generally. — A 
mortgage  may  be  of  only  partial  validity.^*  Where  a  mortgage  of  corporate  property 
has  been  executed  in  part  to  accomplish  a  fraudulent  purpose,  it  cannot  be 
enforced  for  the  security  of  any  part  of  the  consideration,  if  it  is  impossible  to 
separate  the  good  from  the  bad.**^  It  will  be  presumed  that  it  is  for  an  amount 
authorized  by  the  corporate  charter.®^  The  holders  of  corporate  bonds  secured 
by  mortgage  may  enforce  the  same  though  they  are  issued  before  its  entire  capital 
stock  is  subscribed  for  in  good  faith,  and  the  ofiScers  were  by  statute  therefore 
personally  liable  for  its  debts.®^  Assignees  of  corporate  property  to  secure  the 
corporate  bonds  are  bona  fide  holders,  no  bad  faith  being  shown  or  fraud  on  the 
part  of  the  directors  of  the  corporation.®* 

A  mortgagee  of  corporate  property  should,  on  a  mortgage  being  declared  void 
on  account  of  fraud,  be  refunded  taxes  which  he  has  paid  during  the  time  he 
held  record  title.®* 

Execution  of  mortgages  and  honds.""^ — The  board  of  directors  of  a  company 
authorized  to  loan  and  borrow  money,  and  to  mortgage  and  otherwise  dispose  of 
its  property,  may  execute  a  bond  and  assign  the  assets  of  the  corporation  as 
security.''^  Authority  to  execute  a  mortgage  may  be  shown  by  the  corporate  rec- 
ords showing  an  approval  of  the  mortgage  at  a  meeting  at  which  all  the  stock- 
holders were  present,^^  and  a  mortgage  otherwise  properly  executed  is  not  invali- 
dated by  the  fact  that  a  resolution  authorizing  its  execution  is  not  shown,''^  nor 
by  the  fact  of  omission  of  a  portion  of  the  corporate  name  from  the  signature.'^* 
Where  a  corporation  has  issued  bonds  secured  by  mortgage  and  accepted  the  bene- 
fits, it  cannot  assert  that  the  mortgage  is  invalid  because  the  statutory  assent  of 
the  stockholders  was  not  given,"^  or  because  the  corporate  meeting  at  which  it  was 
authorized  was  held  in  a  foreign  state.''® 

Pledge  of  bonds. — Corporate  bonds  are  not  invalidated  by  the  fact  that  they 
are  pledged  instead  of  being  sold  to  raise  money  in  good  faith  for  corporate  pur- 
poses, though  when  authorized  it  was  understood  that  they  were  to  be  sold;  and 
though  by  statute  the  issuance  of  bonds  or  stock  is  prohibited  except  for  labor 
done  or  money  or  property  actually  received,  corporate  bonds  may  be  pledged  to 
secure  an  amount  less  than  their  face,  which  has  been  used  in  the  discharge  of 
the  purchase  price  on  machinery  which  the  corporation  had  taken  over  to  be  used 
in  its  business,  and  the  bonds  are  not  to  be  regarded  as  pledged  for  antecedent 


64.  As  where  only  part  of  the  debts  se- 
cured are  enforceable — Reed  v.  Helois  Car- 
bide Specialty  Co.,  64  N.  J.  Eq.   231. 

65.  Lamb  v.  Mclntire  (Mass.)  67  N.  E.  320. 

66.  Lincoln  V.  Lincoln  St.  Ry.  Co.  (Neb.) 
93  N.  W.  766. 

67.  All  the  statutory  steps  had  apparent- 
ly been  taken,  and  Kurd's  Rev.  St.  1899,  p. 
438,  Corp.  Act  §  27,  makes  the  article  of  In- 
corporation prima  facie  evidence  of  the  facts 
therein  stated — Gunderson  v.  Illinois  Trust  & 
Sav.    Bank,   199   111.   422. 

68.  Hutchison  v.  Rock  Hill  Real  Estate  & 
Loan  Co.,   65  S.  C.   45. 

69.  Lamb  v.  Mclntire  (Mass.)  67  N.  E. 
320. 

70.  A  corporate  mortgage  was  signed  and 
sealed  in  the  presence  of  two  witnesses  and 
carried  to  the  trustee,  who,  on  its  receipt, 
executed  its  acceptance  in  the  presence  of 
two  witnesses,  held,  a  sufficient  delivery — 
William  Firth  Co.  v.  South  Carolina  Loan  & 
Trust  Co.  (C.  C.  A.)  122  Fed.  569.  Evidence 
held   sufficient   to   show   that   bonds   were   is- 


sued for  a  consideration  which  the  corpora- 
tion actually  received  and  were  valid — 
Schultze  V.  Van  Doren  (N.  J.  Ch.)  53  Atl. 
815.  Mortgage  to  the  amount  of  1600.000  for 
money  spent  in  construction  is  not  for  a  fic- 
titious debt  where  it  is  shown  that  $900,000 
was  expended — Lincoln  v.  Lincoln  St.  Ry. 
Co.   (Neb.)   93  N.  W.   766. 

71.  Act  Dec.  1888,  pp.  248-250.  General  In- 
corporation Act  Dec.  23,  1886 — Hutchison  v. 
Rock  Hill  Real  Estate  &  Loan  Co.,  65  S.  C. 
45. 

72.  Crossette  v.  Jordan  (Mich.)  92  N.  W. 
782. 

73.  Reed  v.  Helois  Carbide  Specialty  Co.. 
64  N.  J.  Eq.  231. 

74.  It  was  clearly  show^n  that  there  was 
an  intention  to  bind  the  corporation  and  the 
instruments  were  duly  authorized — In  re 
Goldville  Mfg.  Co.,  118   Fed.   892. 

75.  Atlantic  Trust  Co.  v.  Crystal  Water 
Co.,  72  App.  Div.   (N.  Y.)   539. 

76.  Schultze  v.  Van  Doren  (N.  J.  Ch.)  63 
Atl.    815. 


790 


CORPORATIONS. 


§  16C 


debts,  there  being  a  present  consideration."  Bonds  cannot  be  pledged  for  the 
security  of  directors.'" 

Xi^n. — Corporate  bonds  secured  b}'  trust  deed  are  of  equal  priority,  their 
lien  being  dated  from  the  time  of  record  of  the  mortgage.^^  The  lien  of  a  mort- 
gage on  a  corporation's  property  may  be  superior  to  paving  assessments  except 
such  as  were  already  in  existence  or  in  contemplation  at  the  time  it  was  recorded.*** 
Those  who  hold  bonds  issued  on  cancellation  of  stock  have  a  preference  to  the 
claims  of  ordinary  stockholders  on  an  assignment  for  creditors."  Where  by 
statute  it  is  provided  that,  on  purchase  of  a  corporation's  property  under  a  mort- 
gage sale,  the  purchaser  shall  become  a  new  corporation  succeeding  to  the  rights 
and  duties  of  the  old  corporation  which  is  by  the  fact,  dissolved;  after  sale  under 
a  second  mortgage  at  which  the  purchaser  assumes  payment  of  the  first  mortgage, 
the  first  mortgage  bondholders  possess  a  lien  inferior  to  that  of  a  judgment  for 
a  subsequent  tort  of  the  new  company,  which  judgment  by  statute  is  superior  to 
mortgage  liens.*^ 

Transfer. — Mortgage  bonds  are  negotiable.*'  Bona  fide  holders  are  in  the 
position  of  bona  fide  holders  of  notes  with  regard  to  defenses  available  on  fore- 
closure of  the  mortgages  securing  them.**  Where  bonds  and  a  mortgage  are 
given  to  a  contractor  in  payment  for  construction,  the  bonds  in  the  hands  of  a 
subsequent  transferee  are  not  liable  to  defenses  against  the  contractor  arising  out 
of  invalid  performance." 

Bond  coupons  are  negotiable  where  they  contain  an  absolute  promise  to  pay, 
and  the  purchaser  before  maturity  is  entitled  to  payment  as  therein  provided 
without  regard  to  limitations  or  conditions  in  the  bonds  and  mortgage,  the  mort- 
gage providing  that  the  coupons  shall  be  transferable  by  delivery.*® 

Exchange  of  bonds  for  new  issue. — On  the  issue  by  a  successor  corporation  of 
bonds  secured  by  mortgage  on  the  same  property  which  secured  a  mortgage  for 
the  bonds  of  a  preceding  corporation,  a  provision  that  trustees  of  the  second 
mortgage  should  retain  a  portion  of  the  second  bonds  to  exchange  for  the  first 
mortgage  bonds  does  not  create  a  trust  in  favor  of  the  first  mortgage  bondholders, 
and  their  right  to  an  exchange  may  be  lost  by  laches." 

Enforcement. — Where  a  mortgage  securing  corporate  bonds  provides  that  it 
shall  mature  on  default  in  payment  of  interest,  the  option  to  declare  the  mort- 
gage due  need  not  be  exercised  by  all  the  bondholders.**     If  the  trustee  wrongfully 


77.  Contrulng  Const.  S.  C.  art.  9,  §  10 — 
William  Firth  Co.  v.  South  Carolina  Loan  & 
Trust  Co.  (C.  C.  A.)  122  Fed.  569.  Constru- 
ing South  Carolina  Constitution — In  re  Gold- 
ville  Mf?.  Co.,  118  Fed.   892. 

78.  Where  the  bonds  secured  by  a  mort- 
gage on  corporate  property  are  not  sold,  but 
are  directed  by  the  board  of  directors  to  be 
held  by  the  secretary  to  secure  the  directors 
against  certain  obligations  Incurred  by  them 
on  behalf  of  the  corporation,  a  sale  under  a 
power  in  the  mortgage  is  void,  the  pledge 
being  void,  since  there  was  no  one  to  act  for 
the  company,  and  the  resolution  was  not 
concurred  in  by  all  the  stockholders — Scott 
V.  Farmers'  &  M.  Nat.  Bank  (Tex.)  75  S.  W.  7. 

See  ante,  §  15-S.  for  effect  of  personal 
dealings   between   directors   and   corporation. 

79.  80.  Lincoln  v.  Lincoln  St.  Ry.  Co. 
(Neb.)   93  N.  W.  766. 

81.  Mechanics'  Bldg.  &  Sav.  Ass'n  No.  2s 
Assigned  Estate.   202   Pa.   589. 

S2.     Code    North     Carolina.     St     697,     698 — 


Guardian  Trust  &  Deposit  Co.  v.  Greensboro 
Water  Supply  Co..   115   Fed.  184. 

83.  Lincoln  v.  Lincoln  St.  Ry.  Co.  (Neb.) 
93  N.  W.  766. 

84.  Atlantic  Trust  Co.  v.  Crystal  Water 
Co.,   72  App.  Div.    (N.  T.)   539. 

85.  Wells  V.  Northern  Trust  Co.,  195  111. 
288. 

86.  Haskins  v.  Albany  &  H.  Ry.  &  Power 
Co.,  74  App.  Div.  (N.  T.)  31. 

87.  The  exchange  cannot  be  enforced  some 
eighteen  years  after  the  issuance  of  the  sec- 
ond mortgage  bonds  and  after  the  second 
mortgage  bonds  have  become  of  greater 
value  than  the  first,  and  the  corporation  has 
refused  to  make  further  exchange  unless 
paid  the  difference  In  the  price — Morse  v. 
Chicago  &  E.  I.  R.  Co.,  84  App.  Div.  (N.  Y.) 
406. 

88.  A  request  by  a  chairman  of  a  commit- 
tee representing  a  majority  of  the  bonds  and 
similar  requests  by  other  bondholders  is  suf- 
ficient to  show  the  exercise  of  an  option  that 


^  IbC 


ENFORCEMENT  OF  MORTGAGES. 


791 


decline  to  sue  to  foreclose,  one  or  more  of  the  bondholders  may  sue  individu- 
ally though  it  is  provided  in  the  mortgage  that  the  trustee  shall  sue,^* 

If  a  trustee  suing  to  foreclose  a  corporate  mortgage  desires  to  show  that  he 
is  entitled  to  the  equities  of  a  bona  fide  transferee  for  value  of  the  bonds,  he  must 
show  that  the  persons  for  whom  he  is  trustee  were  not  the  original  holders,  but 
the  burden  of  proving  want  of  consideration  in  the  holders  is  on  the  corporation, 
since  where  the  bonds  are  payable  to  a  trustee  or  bearer,  it  will  be  presumed  that 
the  holders  acquired  them  in  good  faith  and  for  value.  The  same  presumptions 
as  to  good  faith  and  payment  apply  against  the  trustee  as  against  individual 
bondholders.®"  The  trustee  should  not  be  allowed  compensation  for  sale  where  it 
is  made  by  a  receiver.®^  On  foreclosure  sale,  error  in  granting  too  short  a  time 
for  redemption  before  sale  is  cured  by  the  fact  that  sale  is  not  actually  made  until 
the  lapse  of  a  sufficient  time.®^ 

Receivership. — Unless  mismanagement  is  clearly  shown,  a  minority  of  the 
bondholders  of  a  corporation  should  not  be  allowed  a  receiver  on  a  suit  to  fore- 
close where  they  had  delayed  a  long  time  before  bringing  such  action,  though 
there  had  been  a  default  in  interest,  and  during  recent  years  large  sums  have 
been  expended  by  the  corporation  in  development.*'  A  receiver  of  a  corporation 
nominated  under  a  power  in  a  trust  deed  is  nevertheless  an  officer  of  the  court 
and  need  not  account  to  the  trustee  for  his  fees.^* 

Intervention  by  the  stockholders  in  proceedings  to  foreclose  a  mortgage  given 
to  secure  corporate  bonds  is  not  warranted  by  general  charges  that  the  bonds  were 
received  at  a  large  discount.®^  A  holder  of  the  bonds  and  stock  of  a  corporation 
cannot  intervene  in  insolvency  proceedings  against  a  corporation  in  which  receiv- 
ers have  been  appointed,  for  the  reason  that  the  answer  of  the  corporation  is  col- 
lusive and  void,  in  order  to  permit  him  to  set  up  matters  of  defense  and  methods 
of  collecting  the  assets  of  the  corporation,  which  he  insists  will  not  be  adopted  by 
the  present  receivers  though  for  the  interest  of  the  shareholders.*®  The  fact  that 
a  majority  of  the  certificate  holders  have  united  to  secure  a  settlement  of  their 
claims  will  not  authorize  a  minority  holder  to  intervene  in  insolvency  proceedings 
in  which  receivers  have  been  appointed  on  the  ground  that  a  committee  repre- 
senting the  majority  holders  is  the  real  party  complainant,  since  his  rights  would 
be  unaffected  by  any  compromise  which  they  might  make.  The  assets  of  the 
corporation  are  sufficiently  protected  by  the  receivership,  and  as  to  him  any  lia- 
bility of  the  subscribers  to  the  capital  stock  would  be  unaffected  by  a  settlement 


the  trustee  should  foreclose  on  default  in 
Interest — Atlantic  Trust  Co.  v.  Crystal  Water 
Co.,  72  App.  Div.   (N.  Y.)   539. 

89.  Schultze  v.  Van  Doren  (N.  J.  Ch.)  53 
Atl.   815. 

90.  Evidence  held  sufficient  to  show  con- 
sideration paid  by  the  original  transferees — 
Atlantic  Trust  Co.  v.  Crystal  Water  Co.,  72 
App.  Div.   (N.  Y.)   539. 

91.  Where  before  instituting  foreclosure 
proceedings,  the  bondholders  are  required  to 
deposit  the  amount  required  for  costs,  com- 
pensation to  the  trustee  and  counsel  fees,  it 
being  understood  that  such  sum  should  cover 
the  expenses  of  sale;  if  the  sale  is  directed 
to  be  made  by  a  receiver,  a  reasonable  de- 
duction should  be  made  from  the  sum  de- 
posited before  turning  it  over  to  the  trus- 
tee as  compensation,  but  if  but  one  of  the 
bond  holders  objects  the  decree  will  be  dis- 
turbed only  so  far  as  necessary  to  protect 
his    Interest — Girard    Life    Ins.,    Annuity    & 


Trust  Co.  V.  Bedford  Coal  &  Iron  Co.,  20  Pa. 
Super.  Ct.   304. 

92.  Not  prejudicial  to  allow  only  ten  days 
before  an  absolute  sale  where  nearly  six 
months  elapse  before  the  sale  is  confirmed — 
Wells  V.  Northern  Trust  Co.,  195  111.  288. 

93.  Evidence  held  insufficient  to  warrant 
the  appointment  of  a  receiver  against  the 
will  of  majority  of  the  bondholders — Romare 
V.  Broken  Arrow  Coal  &  Min.  Co.,  114  Fed. 
194. 

94.  Citizens'  Trust  &  Deposit  Co.  v.  Tomp- 
kins  (Md.)    54  Atl.   617. 

95.  No  names  were  stated,  but  merely 
that  the  directors  agreed  with  certain  cap- 
italists that  supplies  should  be  furnished  at 
high  rates,  and  alleging  on  information  and 
belief  that  such  capitalists  were  still  the 
owners  of  the  bonds — Gunderson  V.  Illinois 
Trust  &  Sav.  Bank,  199  111.  422. 

96.  Land  Title  &  Trust  Co.  v.  Asphalt 
Co.,  114  Fed.  484. 


792 


CORPORATIONS. 


§  16D 


with  the  majority  holders.  Neither  is  the  certificate  holder  entitled  to  an  order 
instructing  the  receivers  to  bring  suits  to  ascertain  the  liability  of  the  promoters, 
directors,  oflScers,  trustees,  etc.,  of  the  defendant  corporation  before  the  deficiency 
of  the  corporate  assets  is  determined.®'^ 

(§  16)  D.  Offlcers  and  stocl-holders  as  creditors,  etc. — Stockholders  or  direct- 
ors who  make  advances  in  good  faith  stand  on  the  footing  of  other  creditors.®*  An 
agreement  by  a  corporation  with  its  directors,  for  the  conveyance  to  them  of  property 
to  the  amount  of  its  notes,  which  they  assumed  and  on  which  they  are  guarantors, 
is  on  good  consideration  and  is  valid  as  against  other  creditors,  the  corporation 
being  solvent.®®  On  conveyance  by  the  directors  of  an  insolvent  corporation  to  a 
director,  in  payment  of  a  corporate  debt,  the  director  must  show  the  good  faith  of 
the  transaction  and  that  he  did  not  vote  therefor  or  improperly  influence  his  asso- 
ciates.* The  directors  may  execute  a  mortgage  to  secure  another  corporation  in 
which  they  are  stockholders,^  and  they  will  be  protected  as  to  advances  made  to 
enable  a  bona  fide  purchase  from  a  corporation  in  which  they  are  also  directors.^ 
A  sale  of  property  of  an  insolvent  corporation  made  without  consideration,  by 
its  treasurer  to  an  insolvent  firm  of  which  he  was  a  member,  is  invalid,*  as  is  also 
a  collusive  judgment  creating  a  preference.'  Fraud  in  a  mortgage  to  stockholders 
is  not  conclusively  shown  by  the  fact  that  stockholders  meet  before  its  execution 
and  pay  up  their  stock  subscriptions  by  giving  the  corporation  credit  on  accounts 
against  it.® 

Preferences. — A  solvent  corporation  may  prefer  a  director  and  an  officer 
as  a  creditor  and  such  action  may  be  questioned  only  when  the  corporation  is 
insolvent,^  but  an  insolvent  corporation  cannot  prefer  claims  of  its  officers  as 
against  other  creditors,®  nor  can  it  dispose  of  its  property  to  its  directors,®  though 
in  Kansas  a  transfer  on  full  consideration  is  valid  in  the  absence  of  actual 
fraud.*®  In  Indiana  a  contrary  rule  is  held  as  to  the  directors  of  a  private 
manufacturing  corporation,  and  a  preference  to  them  is  allowed.**  Where  a  di- 
rector after  insolvency  of  the  corporation  furnishes  it  money  to  continue  its  opera- 


97.  Land  Title  &  Trust  Co.  v.  Asphalt 
Co.,  121  Fed.  587. 

98.  Standard  Cotton  Seed  Oil  Co.  v.  Ex- 
celsior Refining  Co.,   108  La.  74. 

99.  Swentzel  v.  Franklin  Inv.  Co.,  168  Mo. 
272. 

1.  Pitman  v.  Chicago  Lead  Co.,  93  Mo. 
App.  592. 

2.  Evidence  held  to  show  good  faith  In 
the  giving  of  a  mortgage  to  secure  indebt- 
edness to  corporations  in  which  the  mort- 
gagor's directors  and  stockholders  were  also 
stockholders,  though  at  the  time  the  mort- 
gagor corporation  was  Insolvent — Chick  v. 
Fuller   (C.  C.  A.)   114  Fed.   22. 

3.  Where  a  corporation's  directors  ad- 
vance it  money  to  make  a  purchase  of  prop- 
erty, their  claims  cannot  be  set  aside  in 
favor  of  other  creditors  though  they  were 
also  directors  in  the  corporation  of  which 
the  purchase  -was  made,  if  the  purchase  has 
been  ratified  by  the  sale  of  the  property  by 
the  assignee  of  the  corporation  for  credit- 
ors and  an  incumbrance  thereon  has  been 
settled — Mechanics'  Bldg.  &  Sav.  Ass'n  No. 
2's  Assigned  Estate,  202  Pa.  589. 

4.  Fraudulent  as  to  corporation's  credit- 
ors and  also  as  transfer  in  contemplation  of 
Insolvency  forbidden  by  Gen.  St.  p.  919; 
Corp.  Act,  5  64 — Richardson  v.  Gerli  (N.  J. 
Cb.)   64  Atl.   438. 


5.  Where  certain  directors  assign  a  cause 
of  action  to  a  third  person  to  be  placed  in 
judgment,  and  the  directors  being  served  as 
vice-president  and  secretary  allow  a  default 
judgment  to  be  taken  and  the  entire  corpo- 
rate property  sold  to  satisfy  judgment  of 
less  than  one-half  its  value,  judgment  Is 
fraudulent  and  void  as  to  other  creditors — 
Portland  Consol.  Min.  Co.  v.  Rossiter  (S.  D.  > 
94  N.  W.  702.  A  judgment  on  notes  executed 
for  the  use  of  a  corporate  board  of  directors, 
at  a  time  when  the  corporation  \vas  insolv- 
ent, may  be  set  aside  by  the  receiver  of  the 
corporation — Taylor  v.  Fanning.  87  Minn.  52. 

6.  Crossette  v.  Jordan  (Mich.)  92  N.  W. 
782. 

7.  Wolf  V.  Erwin  &  Wood  Co.  (Ark.)  75  S. 
W.   722. 

8.  Shields  v.  Hobart,  172  Mo.  491;  Lamb 
V.  Russell  (Miss.)  32  So.  916.  "Where  direct- 
ors have  advanced  money  to  take  up  the 
corporation's  obligation  without  agreement 
for  priority,  they  cannot  take  a  judgment 
note  for  their  advances — Pangburn  v.  Amer- 
ican Vault,  Safe  &  Lock  Co.,  205  Pa,  93, 

9.  Off  v.   Jack.  104  111.  App.   655. 

10.  Webb  v.  Rockefeller  (Kan.)  71  Pac 
283. 

11.  Mortgage  to  directors  sustained — Nap- 
panee  Canning  Co.  v.  Reid.  159  Ind.  614,  59 
L.  R.  A.   199. 


§  16E 


LIABILITY   OF  STOCKHOLDERS   ON   SUBSCRIPTIONS. 


793 


tion,  under  an  agreement  with  the  directors  that   he   shiOnld   be  protected  by  a 
first  judgment,  such  a  judgment  if  confessed  is  good  as  to  creditors.^^ 

Where  a  statute  which  authorizes  the  issuance  of  preferred  cumulative  divi- 
dend stock  provides  that  it  shall  be  subordinate  to  the  corporate  debts,  and  other 
liabilities  on  insolvency,  the  holders  of  such  stock  cannot  enforce  a  mortgage  given 
to  secure  it  to  the  prejudice  of  general  creditors,  especially  where  the  mortgage 
provides  that  in  case  of  the  dissolution  of  the  corporation,  it  should  be  paid  after 
the  payment  of  the  debts  and  liabilities  and  the  corporation  was  in  fact  dissolved, 
even  though  the  promoters  miglit  by  the  postponement  be  enabled  to  perpetrate 
a  fraud  on  the  preferred  stockholders  or  though  the  mortgage  was  recorded  before 
the  claims  of  the  general  creditors." 

(§  16)  E.  Liability  of  stoclclioldcrs  on  account  of  unpaid  subscriptions,  and 
remedies.  Statutory  provisions.^* — Statutes  exempting  shareholders  from  further 
liability  after  they  have  paid  up  a  stated  per  cent  of  the  par  value  do  not  affect  cred- 
itors whose  claims  exist  prior  to  the  passage  of  the  statute.^"  Where  the  liability  of 
stockholders  is  reduced  by  a  subsequent  statute,  the  limitation  of  a  creditor's 
claim  which  arose  before  the  passage  of  the  statute  begins  to  run  at  the  time  the 
stockholders  default  in  the  payment  of  their  subscriptions  under  the  original 
contract.^' 

Who  are  liable. — Under  the  statutes  of  Missouri  it  is  not  a  necessary  requisite 
to  title  that  stocks  be  transferred  on  the  stock  book,  and  after  a  recognized  trans- 
fer by  indorsement  and  delivery,  the  corporation's  creditors  cannot  recover  on  an 
unpaid  subscription  from  the  original  holder."  A  stockholder's  liability  for  un- 
paid subscriptions  may  be  enforced  by  a  creditor  without  a  showing  of  fraud.^* 
The  fact  that  a  portion  of  stock  has  been  taken  up  from  the  subscriber  and  made 
treasury  stock  does  not  relieve  him  from  personal  liability  as  to  subsequent  credit- 
ors to  the  amount  of  the  subscription  unpaid.^®  One  who  receives  stock  as  a 
bonus  is  not  within  the  meaning  of  a  statute  imposing  liability  in  favor  of  credit- 
ors on  the  original  subscribers  to  corporate  stock,  to  the  extent  of  their  unpaid 
subscriptions.^*'  One  need  not  be  a  stockholder  at  the  date  of  a  call  in  order  to 
render  him  liable  for  unpaid  stock  subscriptions,  where  with  knowledge  of  the 
insolvency  of  the  corporation  he  has  transferred  the  stock  to  an  insolvent  person 
knowing  him  to  be  insolvent  for  the  purpose  of  relieving  himself  from  liability.^^ 
The  stockholder's  liability  does  not  cease  in  case  of  a  forfeiture  of  stock  which  is 
actually  void,  though  it  may  where  there  is  a  merely  informal  forfeiture  which 
has  been  acquiesced  in  by  both  parties.^^ 

Preferred  stockholders  though  by  statute  exempted  from  personal  liability 
for  corporate  debts  are  not  relieved  from  a  statutory  liability  on  receipt  of  with- 
drawals from  the  capital  stock.^^ 

Fictitiously  paid  up  stocTc. — One  who  purchases  stock  from  the  corporation 
at  less  than  its  par  value  without  knowledge  that  it  was  not  originally  sold  at  par 


12.  Hog-sett  V.  Columbia  Iron  &  Steel  Co., 
203  Pa.  148. 

13.  Pub.  Laws  1896,  p.  283,  §  18  as  amend- 
ed by  Pub.  Laws  1901,  p.  245 — Black  v.  Ho- 
bart  Trust  Co.   (N.  J.  Ch.)   53  Atl.  826. 

14.  Act  Feb.  18,  1895,  Code,  §§  823,  1282, 
authorizing  a  bill  in  equity  to  reacli  unpaid 
stock  subscriptions,  does  not  apply  to  suits 
pending  at  the  time  of  its  passage — Hg^nder- 
son  V.  Hall.  134  Ala.  455. 

15.  16.     Williams  v.  Watters   (Md.)   54  Atl. 

767. 

17.  Dain  Mfg.  Co.  v.  Trumbull  Seed  Co., 
95  Mo.   App.  144. 


18.  Shields  v.  Hobart    (Mo.)    72  S.  W.   669 

19.  Chrisman-Sawyer  Banking  Co.  v.  In- 
dependence Wool  Mfg.  Co.  (Mo.)  68  S.  W. 
1026. 

20.  Const.  Neb.  art.  lib,  §  4 — Seaboard 
Nat.  Bank  v.  Slater,  117  Fed.  1002. 

21.  People's  Home  Sav.  Bank  v.  Rickard 
(Cal.)   73  Pac.  858. 

22.  Crissey  v.   Cook   (Kan.)    72  Pac.   541. 

23.  Comp.  Laws  1897,  §§  7073,  7057 — Amer- 
ican Steel  &  Wire  Co.  v.  Eddy  (Mich.)  89  N. 
W.   952. 


794 


CORPORATIONS. 


§   16E 


is  not  liable  to  creditors  for  the  difference  between  the  amount  paid  and  the  par 
value,^^  and  a  recital  in  stock  certificates  that  stock  is  full  paid  and  nonassessable 
throws  on  the  creditor  the  burden  of  showing  that  the  stock  was  taken  with  knowl- 
edge that  the  recital  was  fraudulent,  there  being  no  liability  in  the  case  of  a  bona 
fide  purcliaser,  such  a  purchaser  having  the  right  to  rely  on  the  recital  in  the 
certificate."-' 

Where  stock  has  been  accepted  in  payment  of  stock  subscriptions  at  an  excess- 
ive valuation,  creditors  are  entitled  to  relief  against  the  subscriber.^^  Under 
statutory  provisions  that  stock  is  not  to  be  issued  except  for  money  paid,  labor 
done,  or  property  actually  received,  a  stock  subscription  cannot  be  paid  in  the 
stock  of  another  corporation  unless  such  stock  is  disposed  of  or  a  direct  pecuniary 
advantage  has  been  received.^^  The  burden  of  showing  good  faith  in  payment  is 
on  the  stockholder.^^  WTiere  stockholders  jointly  turn  over  property  at  a  sum 
in  excess  of  its  real  value  in  payment  of  their  subscriptions,  they  are  liable  indi- 
vidually for  the  discrepancy  in  proportion  to  the  number  of  shares  held  by  tliem.^" 
On  payment  in  property,  the  stockholder  is  liable  though  both  the  corporation  and 
the  stockholder  at  the  time  supposed  the  value  of  the  stock  and  the  property 
was  equal,^"  but  it  is  held  that  the  transaction  must  be  first  impeached  for  fraud 
on  the  corporation.*^ 

In  determining  whether  the  property  of  a  firm  has  been  overvalued  where  it 
is  transferred  in  consideration  of  an  issue  of  stock,  the  good  will  of  the  firm 
should  be  considered,  the  firm  having  been  merged  in  the  corporation.*- 

Persons  to  whom  a  mining  corporation  transfers  its  stock  in  consideration 
of  the  transfer  of  mining  locations  are  not  protected  under  a  statute  authorizing 
the  issuance  of  full  paid  stock  for  such  purposes,  if  there  has  been  no  mineral 
discovered  in  such  locations.**  The  creditor  may  be  estopped  to  assert  a  fictitious 
valuation." 

Estoppel  of  stockholder. — If  a  stockholder  makes  representations  that  the 
capital  stock  has  been  entirely  paid  in,  he  may  be  liable  to  persons  becoming 
creditors  after  the  transfer  of  his  stock  for  unpaid  subscriptions."  As  against 
an  action  to  recover  an  assessment  on  stock,  defendant  who  does  not  seek  to 
rescind  the  contract  by  which  he  acquired  ownership  cannot  assert  that  the  con- 
tract under  which  he  held  was  void.*" 


24.  stock  standing  In  the  name  of  a  trus- 
tee— Berry  v.   Rood,   168   Mo.   316. 

25.  Garden  City  Sand  Co.  v.  American 
Refuse   Crematory  Co.,   105   111.   App.   342. 

26.  Evidence  held  to  show  that  stock  In 
another  corporation  turned  in  on  a  stock 
subscription  was  of  small  value,  authorizing 
creditors  to  relief — Lester-Haltom  v.  Bemis 
Lumber  Co.   (Ark.)   74  S.  W.  518. 

27.  Construing  Texas  Const,  art.  12,  §  6 — 
Lester-Haltom  v.  Bemis  Lumber  Co.  (Ark.) 
74  S.  W.  518. 

28.  Property  conveyed  in  payment  at  an 
over  valuation — Taylor  v.  Walker,  117  Fed. 
737. 

McClure  v.  Paducah   Iron   Co.,   90  Mo. 
567. 
Const,  art.  12,  §  8;  Rev.  St.  1899.  §  962 
—Berry  v.  Rood,  168  Mo.   316. 

31.  To  render  the  holder  liable  as  for  un- 
paid subscriptions — Bank  v.  Belington  Coal 
&  Coke  Co.,  51  W.  Va.  60.  Evidence  held 
sufficient  to  show  good  faith  in  the  trans- 
fer of  partnership  property  to  a  corporation 
at  an  amount  in  excess  of  Its  value — Taylor 
V.  Walker.  117  Fed.  737. 


29. 

App. 
30. 


32.  White  V.   Jones,    79   App.   Dlv.    373,    12 

N.  Y.  Ann.  Cas.  277. 

33.  A  petition  in  an  action  by  a  creditor 
to  reach  the  amount  unpaid  on  such  etock 
which  asserts  that  no  mineral  had  been  dis- 
covered is  therefore  not  demurrable.  Con- 
struing Mills'  Ann.  St.  §§  486,  582,  3152;  Rev. 
St.  U.  S.  §  2322 — Buck  v.  Jones  (Colo.  App.) 
70  Pac.  951. 

34.  One  joining  in  an  agreement  whereby 
at  the  organization  of  a  corporation  certain 
incorporators  received  fully  paid  stock  In 
exchange  for  property  w^hich  they  transfer- 
red to  the  corporation,  cannot,  on  becoming 
a  creditor  of  the  corporation,  assert  tliat  the 
properly  was  not  equal  to  the  par  value  of 
the  stock  as  a  ground  for  holding  the  incor- 
porators liable  for  their  unpaid  subscrip- 
tions— Cunningham  v.  Holley,  Mason  (C.  C. 
A.)   121  Fed.  720. 

35.  McBryan  v.  Universal  Elevator  Co. 
(Mich.)   89  N.  W.  683. 

36.  Mt.  Forest  Ass'n  v.  Borrowe,  71  N 
H.  69. 


§  16E 


PROCEDURE  TO  ENFORCE  SUBSCRIPTIONS. 


79S 


Defenses.-^As  against  an  application  for  an  order  for  an  assessment  for 
unpaid  subscriptions,  stockholders  cannot  assert  that  the  corporation  never  be- 
came such  de  jure  or  de  facto,  nor  that  the  agreement  to  incorporate  was  aban- 
doned and  subscription  canceled  by  subscribers,  nor  can  they  plead  the  statute  of 
limitations,  nor  that  the  claim  against  one  of  the  subscribers  is  barred  by  a  decree 
of  the  orphan's  court."  An  agreement  by  the  original  creditor  to  waive  the  right 
to  enforce  liability  on  subscriptions  may  constitute  a  defense.^^ 

The  fact  that  creditors  have  accepted  dividends  derived  from  the  sale  at  a 
factitious  value,  of  the  assets  of  an  insolvent  corporation,  on  stock  subscriptions, 
does  not  prevent  an  action  by  them  or  in  their  behalf  to  recover  the  actual  unpaid 
balance.'* 

Where  stock  subscribers,  relying  on  an  unauthorized  agreement  by  the  presi- 
dent to  purchase  their  stock,  pay  their  subscription  notes,  a  judgment  creditor 
cannot  enforce  a  repayment  .of  the  notes,  but  may  only  recover  the  corporate 
assets,  applied  to  the  purchase  of  the  stock.*" 

A  statute  providing  that  where  it  is  necessary  to  resort  to  a  court  of  chancery 
to  settle  and  wind  up  the  affairs  of  the  insolvent  corporation,  the  court  nuay,  in 
case  it  is  necessary,  direct  the  trustee,  assignee,  or  receiver  to  sue  at  law  to 
recover  assessments  on  stock  subscriptions,  and  which  further  provides  that  in 
such  suit  at  law  any  defenses  which  would  have  been  admissible,  were  the  corpora- 
tion solvent,  shall  be  permitted,  confers  the  right  to  assert  defenses  on  a  stock- 
holder sued  in  a  foreign  state  by  a  receiver  to  enforce  an  assessment.*^ 

Stockholders  who  have  not  answered  may  be  entitled  to  a  successful  defense 
by  other  stockholders.'*^ 

In  actions  brought  to  collect  assessments,  the  stockholders  may  make  a  defense 
based  on  their  status  as  stockholders,  though  in  insolvency  proceedings  they  can- 
not interpose  any  defense  that  the  corporation  itself  could  not  set  up,  and  the 
determination  of  the  debts  of  the  corporation  in  insolvency  proceedings  cannot 
be  questioned  in  proceedings  by  the  receiver  to  secure  an  authorization  of  an 
assessment  on  stockholders.*' 

Set-off. — Demands  of  stockholders  against  the  corporation  may  be  set  off  in 
a  proceeding  in  equity  by  a  judgment  creditor  to  reach  unpaid  stock  subscrip- 
tions,** but  the  demands  must  be  valid,*^  and  if  a  portion  is  invalid,  the  stock- 
holder has  the  burden  of  showing  the  validity  of  the  portion  relied  on.** 


37.  Cumberland  Lumber  Co.  v.  Clinton 
Hill  Lumber  &  Mfg.  Co.  (N.  J.  Ch.)  54  Atl. 
450. 

38.  "Where  one  of  the  purposes  of  a  cor- 
poration is  to  purchase  certain  land,  and 
stock  subscriptions  are  made  under  an  agree- 
ment with  the  owner  of  the  land  that  there 
should  be  no  personal  liability  to  the  stock 
subscribers  for  the  purchase,  such  agree- 
ment prevents  the  enforcement  by  the  re- 
ceiver of  the  corporation  against  the  sub- 
scribers personally  of  their  unpaid  stock  sub- 
scriptions to  satisfy  the  purchase  price; 
though  it  does  not  provide  for  the  amount 
of  the  capital  stock  or  specify  the  amount 
each  subscriber  would  take  and  thovigh  the 
notes  contained  an  unqualified  promise  on 
the  part  of  the  corporation  to  pay,  had  been 
assigned  to  a  third  person,  and  not  having 
been  made  payable  at  a  bank  were  subject 
to  defenses  by  the  maker  (Burns'  Rev.  St. 
1901,  §  7517;  Horner's  Rev.  St.  1901,  §  5503) — 
Carnahan  v.  Campbell,  158  Ind.   226. 

39.  Berry  v.  Rood,  168  Mo.  316. 


40.  Henderson  v.  Hall.  134  Ala.  455. 

41.  Act  Va.  Dec.  22,  1897;  Acts  1897,  1898, 
p.  16,  c.  20,  may  be  taken  advantage  of  by 
stockholders,  resident  in  Maryland,  sued  by 
a  receiver  appointed  in  Virginia — Williams 
v.  Watters   (Md.)   54  Atl.  767. 

42.  Denial  of  insolvency  In  an  action  to 
reach  unpaid  stock  subscriptions — Fletcher 
V.  Bank  of  Lonoke  (Ark.)   69  S.  W.  580. 

43.  Cumberland  Lumber  Co.  v.  Clinton 
Hill  Lumber  &  Mfg.  Co.  (N.  J.  Ch.)  54  Atl. 
450. 

44.  Shields   v.   Hobart   (Mo.)    72   S.    W.    669. 
4.5.     Where   a   corporation    having    sold    its 

property  constituting  its  actual  capital,  dis- 
tributed the  purchase  money  notes  as  div- 
idends and  then  renewed  them  with  its 
own  notes  indorsed  by  stockholders,  stock- 
holders who  have  paid  in  discharge  of  their 
liabilities  as  such  indorsers,  cannot  set  off 
such  payments  as  against  their  unpaid  sub- 
scriptions to  the  capital  stock,  when  a  judg- 
ment creditor  seeks  to  collect  them.  Rev. 
Stat.  1889,  §  2773,  provides  that  directors  sbaU 


796 


CORPORATIONS. 


§   lOh 


Limitations." — Equity  will  apply  the  statute  of  limitations  by  analogy  to 
a  proceeding  to  enforce  a  stockholder's  liability.*^  Limitations  against  the  right 
to  recover  on  stock  subscriptions  run  from  the  time  of  assessment.**  The  right 
of  action  to  enforce  unpaid  stock  on  the  insolvency  of  a  corporation  accrues  at 
the  time  the  corporation  is  declared  insolvent.^"  A  statutory  limitation  appli- 
cable to  the  enforcement  of  the  stockholder's  personal  liability  does  not  apply  to 
an  action  for  unpaid  subscriptions."  Under  statutes  which  do  away  with  the 
necessity  of  the  issuance  of  an  execution  against  a  corporation  and  its  return 
unsatisfied  before  an  action  may  be  maintained  to  enforce  the  liability  of  stock- 
holders on  their  subscriptions,  the  limitation  of  such  an  action  will  begin  at  the 
time  the  creditor  has  notice  that  the  corporation  is  insolvent,  and  such  notice 
will  be  presumed  when  the  insolvency  becomes  a  matter  of  general  notoriety." 
Wliere  the  members  are  policy  holders,  the  right  to  enforce  their  liability  on  the 
policies  accrues  for  the  purposes  of  limitations  at  the  time  of  appointment  of  a 
receiver  for  a  mutual  insurance  company."  Under  a  statute  allowing  suits  in 
equity  to  reach  unpaid  subscriptions,  limitation  will  run  against  such  an  action, 
though  the  right  to  proceed  under  the  general  chancery  act  has  not  accrued,  since 
the  remedies  being  similar,  the  rule  is  that  the  limitation  runs  when  the  right 
to  pursue  the  earlier  remedy  accrues.^*  Where  the  jurisdiction  of  chancery  of 
proceedings  to  recover  assessments  on  stock  subscriptions  after  insolvency  is  re- 
moved by  statute,  a  proviso  that  as  to  chancery  suits  pending  at  the  time  of  passage 
seekino-  to  recover  unpaid  stock  subscriptions,  the  limitation  shall  not  run  during 
the  time  elapsing  between  the  institution  of  such  suit  and  one  month  after  the 
order  authorizing  a  common-law  action,  does  not  apply  in  the  case  of  a  chan- 
cery suit  against  a  corporation  by  a  creditor,  where  recovery  against  stockhold- 
ers was  not  sought  until  by  an  amendment  after  the  passage  of  the  act." 

Who  may  enforce. — Under  the  Illinois  statute  allowing  suits  in  equity  against 
stockholders  to  compel  them  to  pay  their  pro  rata  share  of  the  corporate  debts 
to  the  extent  of  the  unpaid  portion  of  their  stock,  a  simple  contract  creditor  may 
bring  the  proceeding.^®  An  action  to  recover  unpaid  stock  subscriptions  cannot 
be  maintained  by  a  creditor  for  his  own  benefit,  but  the  right  is  in  the  receiver  for 
the  benefit  of  all  creditors,"  and  neither  can  the  action  be  brought  by  an  assignee  for 
creditors." 


be  personaHy  liable  to  creditors  in  case  they 
pay  dividends  diminishing  the  capital  stock 
—Shields  v.  Hobart   (Mo.)    72  S.  W.   669. 

40.  If  there  is  a  showing  that  a  portion 
of  notes  on  which  a  stockholder  was  indorser 
was  unlawfully  issued,  the  stockholder,  if 
he  attempts  to  set  off  a  payment  on  such 
liability  as  indorser  as  against  a  judgment 
creditor's  attempt  to  reach  unpaid  stock 
subscriptions,  has  the  burden  of  showing 
the  portion  of  the  notes  given  for  a  legiti- 
mate purpose — Shields  v.  Hobart  (Mo.)  72 
S.    W.    669. 

47.  Evidence  held  not  to  show  notice  of 
insolvency  causing  the  statute  of  limita- 
tion to  begin  to  run  against  an  action  to 
enforce  liability  on  stock  subscriptions — 
Lester-Haltom  v.  Bemis  Lumber  Co.  (Ark.) 
74   S.   W.   518. 

48.  Hale  v.  Coffin    (C.  C.   A.)    120   Fed.   470. 

49.  Otter  View  Land  Co.'s  Receiver  v.  Boi- 
ling's Ex'x,   24  Ky.   L.   R.   1157,   70   S.  W.    834. 

50.  Boyd  V.  Mutual  Fire  Ass'n  (Wis.)  90 
N.  W.  1086. 


51.  Rev.  St.  1899.  §  1330.  not  applicable  to 
the  collection  of  unpaid  subscriptions,  under 
section  985 — Chrisman-Sawyer  Banking  Co. 
V.   Independence  V\"ool  Mfg.  Co..   168  Mo.  634. 

53.  In  Arkansas,  action  is  barred  in  five 
years — Lester-Haltom  v.  Bemis  Lumber  Co. 
(Ark.)    74    S.   W.    518. 

53.  Boyd  v.  Mut.  Fire  Ass'n  (Wis.)  90  N. 
W.    1086. 

.54.  Limitation  of  action  under  Corpora- 
tion Act,  §  25.  Is  not  tolled  by  chancery 
act,  §  49 — Parmelee  v.  Price,  105  111.  App.  271. 

55.  Act  Va.  Dee.  22,  1897,  acts  1S97.  1898, 
p.  IC,  c.  20 — Williams  v.  Watters  (Md.)  54 
.\tl.    767. 

J56.  Corporations  act,  §  25 — Parmelee  v. 
Price,  105  111.  App.  271. 

57.  Stock  Corp.  Law,  §  54  as  amended  by 
Laws  1901,  c.  354.  held  merely  declaratory 
of  the  common  law — Lang  v.  Lutz,  39  Misc. 
(N.  Y.)   3. 

58.  Laws  1892,  c.  688.  §  54.  Case  in  which 
stock  was  issued  for  less  than  par  as  fully 
paid — Thompson  v.  Knight,   74  App.  Div.    (N. 

I  Y.)    316. 


;?  16E 


PROCEDURE  TO  ENFORCE  SUBSCRIPTIONS. 


797 


Exhaustion  of  remedies  against  corporation. — Unpaid  subscriptions  cannot 
be  enforced  for  the  payment  of  corporate  debts  until  the  corporation  is  insolvent 
or  the  remedies  against  it  have  been  exhausted  by  the  creditors.^^  The  liability 
to  the  amount  of  unpaid  stock  arises  only  after  the  return  of  an  execution  against 
the  corporation  unsatisfied,  and  limitations  do  not  run  in  favor  of  the  stock- 
holders imtil  such  time.°°  Under  some  statutes  the  exhaustion  of  the  corporate 
assets  is  not  a  condition  precedent.*'^ 

Procedure. — Equity  cannot  take  jurisdiction  to  subject  debts  due  on  stock 
subscriptions  to  the  payment  of  a  judgment  on  the  ground  that  the  capital  stock 
and  debts  due  thereon  constitute  a  trust  fund,  and  an  action  cannot  be  brought 
in  equit}^  though  with  intent  to  defraud  the  corporation,  the  subscribers  have 
transferred  their  stock  to  an  irresponsible  nonresident.*^ 

In  a  creditor's  suit  to  recover  unpaid  stock  subscriptions  on  insolvency  of  a 
corporation,  separate  stockholders  may  be  joined  as  defendants,  and  the  stock- 
holders may  be  brought  in  by  amendment  to  a  proceeding  originally  begun  against 
the  corporation.®^  An  order  allowing  creditors  to  come  in  and  give  security  for 
costs  in  order  that  they  may  receive  the  benefit  of  actions  prosecuted  by  the 
receiver  to  enforce  the  liability  of  stockholders  on  subscription  may  be  taken 
:u]  nntage  of  by  creditors  who  receive  their  claims  by  assignment  after  the  order 
is  entered.®* 

Pleading.^^ — A  bill  against  a  corporation  and  certain  of  its  stockholders 
brought  by  a  judgment  creditor  to  compel  the  payment  of  unpaid  subscriptions 
may  be  changed  by  an  amendment  to  a  common  creditor's  bill,  though  the  amend- 
ment contain  allegations  of  actual  fraud  in  addition  to  the  facts  showing  con- 
structive fraud  originally  alleged,  the  nature  of  defendant's  liability  not  being 
changed.®® 

A  complaint  in  an  action  by  a  creditor  to  recover  an  amount  unpaid  on  the 
stock  of  a  member  of  an  insolvent  corporation  is  sufficient  if  it  merely  allege 
the  ownership  of  the  stock,  and  the  fact  of  failure  of  payment.®^  A  stock  sub- 
scription contract  should  be  pleaded  in  a  suit  by  the  receiver  to  recover  the 
amount  unpaid  on  insolvency  of  the  corporation  where  it  relates  to  matter  other 
than  the  times  and  proportions  of  the  stock  subscriptions.®^  Where  it  is  desired 
to  assert  a  contract  making  liability  contingent,  the  answer  must  plead  facts 
showing  notice  to  purchasers  of  the  corporation's  obligations  of  such  limitation 
on  the  liability.®^  Where  it  is  sought  to  subject  unpaid  stock  subscriptions  of 
certain  stockholders  to  a  judgment,  a  cross  bill  does  not  state  a  cause  of  action 
which  asserts  as  against  a  co-defendant  that  he  had  agreed  to  hold  cross  com- 
plainant harmless  from  any  liability  on  the  subscription  price  of  stock  which  he 
transferred  to  cross  complainant,  but  does  not  allege  that  the  cross  complainant 


59.  Fletcher  v.  Bank  of  Lonoke  (Ark.) 
69  S.  W.   580. 

60.  Comp.  St.  1887.  div.  5.  §  457 — King  v. 
Pony  Gold  Min.  Co.   (Mont.)   72  Pac.  309. 

61.  Corporations  Act,  S  25 — Parmelee  v. 
Price,   105  111.  App.   271. 

62.  The  judgment  creditor's  remedy  Is  by 
garnishment — Henderson  v.  Hall,  134  Ala. 
455. 

63.  Comp.  Laws  1897,  §§  9760,  9769,  9773 — 
Schaub  V.  Welded  Barrel  Co.  (Mich.)  90  N. 
W.   335. 

64.  Central  Trust  Co.  v.  East  Tennessee 
Land  Co..  116  Fed.  743. 

65.  See  for  construction  of  a  bill  as  al- 
leging that  a  corporation  was  bound  by  an 


agreement  by  the  president  to  cancel  stock 
subscription  notes  in  consideration  of  pay- 
ment of  their  subscriptions,  and  also  to 
transfer  them  assets  of  the  corporation — 
Henderson   v.   Hall,    134   Ala.    455. 

66.  Montgomery  Iron  Works  v.  Capital 
City  Ins.   Co.    (Ala.)    34   So.   210. 

67.  Atlantic  Trust  Co.  v.  Osgood,  116  Fed. 
1019. 

68.  Agreement  making  the  times  of  pay- 
ment dependent  on  a  contract  of  land  pur- 
chase on  the  fulfillment  of  which  the  Bub- 
scriptions  were  conditional — Carnahan  v. 
Campbell,  158  Ind.   226. 

69.  Carnahan  v.  Campbell,  158  Ind.  226. 


798 


CORPORATIONS. 


§  16E 


was  liable  for  the  stock,  or  that  the  cross  respondent  had  not  paid  thereforJ"  An 
amendment  to  a  petition,  seeking  to  subject  impaid  subscriptions  to  the  satisfac- 
tion of  a  judgment,  which  states  that  certain  of  the  subscribers  have  been  allowed 
credits  on  their  notes  for  services  rendered  to  their  corporation,  is  immaterial.''^ 

The  burden  of  proof  of  insolvency  or  exhaustion  of  other  remedies  is  on  the 
creditors.''^  Where  it  is  sought  to  recover  an  amount  unpaid  on  a  stock  subscrip- 
tion, the  agreement  under  which  the  stock  was  issued  may  be  shown  by  parol,  and 
the  certificate  of  stock  is  admissible  to  show  that  it  was  fully  paid.''^ 

Remedies  in  case  of  receivership. — The  receiver  may,  by  direction  of  the 
court,  sue  for  the  recovery  of  unpaid  subscriptions  for  the  benefit  of  creditors,^* 
and  his  administration  is  not  complete  until  he  has  done  so.''' 

A  court  of  equity  may  compel  the  payment  of  unpaid  subscriptions,  not- 
withstanding a  statutory  provision  that  the  directors  shall  determine  the  time 
for  payment  of  deferred  instalments.''®  The  appointment  of  a  receiver  removes 
the  riglit  of  the  creditor  to  sue.'"  The  receiver  cannot  sue  for  the  purpose  of 
meeting  future  corporate  obligations,  if  there  is  no  existing  unsatisfied  creditor.'* 
The  receiver  cannot  be  compelled  to  sue  on  a  disputed  claim  before  he  can  have 
an  assessment  on  the  stockholders  authorized,  if  there  are  no  assets  for  such  pur- 
pose and  the  stockholders  had  not  asserted  the  validity  of  the  claim  and  indemni- 
fied him  against  the  expense  of  the  suit.'® 

Injunction  against  a  receiver's  proceeding  to  enforce  assessments  against  par- 
ticular stockholders  will  not  prevent  his  instituting  actions  against  other  stock- 
holders as  directed  by  the  decree  appointing  him.^" 

Procedure  hy  receiver. — A  receiver  may  bring  an  action  to  recover  an  unpaid 
stock  subscription  in  a  county  in  which  one  defendant  only  resides  and  which  is 
foreign  to  the  home  office  of  the  company.^*  Mere  failure  to  show  notice  to  the 
stockholders  to  pay  subscriptions  before  suit  will  not  warrant  a  judgment  for  de- 
fendant, though  if  the  failure  had  been  raised  by  answer  and  an  offer  to  pay  made, 
the  liability  for  costs  would  have  been  discharged.*^  Where  from  the  application 
for  an  order  to  authorize  an  assessment  against  subscribers  to  corporate  stock,  it  is 
shown  that  certain  persons  are  supposed  to  be  stockholders  but  that  they  allege 
that  they  are  not,  the  assessment  should  be  directed  and  the  liability  of  individual 
subscribers  left  to  be  determined  by  suit  if  necessary.*^  Where  in  a  branch  of 
insolvency  proceedings,  a  reference  has  been  had  and  the  amount  due  a  director 
from  the  corporation  determined,  the  court  may,  on  entry  of  a  decree  in  the  gen- 
eral proceedings  granting  an  assessment  on  stockholders  of  the  amount  of  their 
unpaid  subscriptions,  have  a  further  reference  deducting  the  amount  of  the  unpaid 
subscription  from  the  decree  in  favor  of  the  director.** 

Scope  of  assessment. — An  allowance  for  receiver's  fees  and  his  counsel  fees  may 
be  included,  together  with  interest  on  the  corporation's  debt,  and  expenses  in  actions 


70,  71.     Henderson  v.  HaH,  134  Ala.   455. 

72.  Action  to  reach  unpaid  stock  subscrip- 
tions— Fletciier  v.  Bank  of  Lonoke  (Ark.)  69 
S.  W.   580. 

73.  Cunningham  v.  Holley  (C.  C.  A.)  121 
Fed.   720. 

74.  Berry  v.  Rood,  168  Mo.  316. 

75.  Limited  corporation — City  Item  Co-Op. 
Printing  Co.  v.  Phoenix  Furniture  Concern, 
108   La.    258. 

76.  Kroegher  v.  Callvada  Colonization  Co. 
(C.  C.  A.)   119  Fed.   641. 

77.  Morgan  v.  Glblan.  115  Ga.  145. 


78.  Tichenor  v.  Williams  Block  Pavement 
Co.,    116   Ga.    303. 

79.  Cumberland  Lumber  Co.  v.  Clinton 
Hill  Lumber  &  Mfg.  Co.  (N.  J.  Ch.)  54  Atl. 
450. 

80.  Gold  V.  Paynter  (Va.)   44  S.  E.  920. 

81.  Such  facts  are  not  ground  for  plea  in 
abatement — Carnahan  v.  Campbell,  158  Ind. 
226. 

82.  Berry  v.  Rood,  168  Mo.  316. 

83.  Cumberland  Lumber  Co.  v.  Clinton  Hill 
Lumber  &  Mfg.  Co.    (N.  J.  Ch.)   54  Atl.   450. 

84.  Kroegher  v.  Callvada  Colonization  Co 
(C.  C.  A.)  119  Fed.  641. 


§16F 


PERSONAL  LIABILITY  OF  STOCKHOLDERS. 


799 


brought  at  the  order  of  court,  though  costs  went  to  persons  whom  it  is  sought  to 
charge  as  stockholders.^'^ 

Interest. — Assessments  may  draw  interest,  the  claim  being  liquidated  by  the 
fact  thereof.^' 

The  trustee  in  hanJcruptcy  of  a  corporation  has  the  sole  right  to  sue  to  recover 
unpaid  stock  subscriptions.*^ 

(§  IG)  F.  Personal  liahility  of  stoclcJioldcrs  for  debts  of  the  corporation  and 
remedies.  What  law  governs.^^ — Stockholders'  liabilities  are  governed  by  the  law  of 
the  state  of  incorporation,*®  and  where  the  courts  of  a  corporation's  domicile  have  de- 
termined the  amount  owing  by  stockholders  under  the  local  laws  rendering  them 
liable  to  creditors  in  excess  of  their  stock,  the  liabilities  will  be  enforced  by  the 
courts  of  a  foreign  state  as  to  stockholders  in  their  jurisdiction.®"  The  statute  of 
limitations  of  New  York  is  applicable  to  an  action  against  a  resident  stockholder 
of  a  Kansas  corporation  to  enforce  his  liability  as  created  by  the  laws  of  Kansas.®^ 
In  Maine  it  is  held  that  if  the  same  statute  of  a  foreign  state  which  fixes  the 
liability  also  fixes  a  limitation,  such  limitation  controls,  otherwise  where  the 
limitation  is  only  in  a  general  statute  of  a  foreign  state.®^  Where  the  action  is  in  a 
federal  court,  it  may  be  sustained  on  a  showing  of  the  existence  of  the  jurisdictional 
facts  requisite  under  the  statutes  of  the  state.*'  The  right  of  a  receiver  to  main- 
tain an  action  extra-territorially  to  enforce  stockholders'  liability  in  the  fed- 
eral courts  on  the  principles  of  comity  will  not  be  denied  for  the  reason  that  the 
stockholders  who  were  also  creditors  have  not  been  served  with  process,  and  have 
not  intervened  for  the  purpose  of  setting  off  their  debts,  where  the  statute  gov- 
erning the  action  in  the  state  of  incorporation  provides  that  notice  may  be  by 
publication.®* 

Common-law  liahility. — There  is  no  common-law  liability  of  stockholders  to 
creditors.®^ 

Statutory  provisions.^^ — A  full  liability  corporation  organized  under  the  busi- 
ness corporation  law  is  controlled  by  a  provision  of  the  stock  corporation  law 
which  provides  that  no  stockholder  shall  be  personally  liable  for  a  debt  not  payable 
within  a  certain  time  or  unless  action  is  brought  against  the  corporation  within 
such  time  and  that  no  action  shall  be  brought  against  a  stockholder  more  than  two 
years  after  he  ceases  to  be  one,®''  though  see  contra.®*  The  statutory'  liability  of 
stockholders  for  more  than  the  amount  of  their  stock  is  not  intended  as  a  penalty 


85.  Cumberland  Lumber  Co.  v.  Clinton 
Hill  Lumber  &  Mfg.  Co.  (N.  J.  Ch.)  54  Atl. 
450, 

8C.  Assessment  on  stockholders  of  an  In- 
solvent saviiigs  bank — May  v.  Ullrich  (Mich.) 
92  N.   W.    493. 

87.  30  Stat.  U.  S.  565,  §  70 — Falco  v.  Kau- 
pisch  Creamery   Co.,    42   Or.   422,   70   Pac.   286. 

88.  What  law  governs  enforcement  of 
stockholder's  liability,  see  also  "Foreign  Cor- 
porations." 

89.  McClure  v.  Paducah  Iron  Co.,  90  Mo. 
App.   567;  Pulsifer  v.  Greene,  96  Me.   438. 

90.  Pfaff  V.  Gruen  (Mo.  App.)  69  S.  W. 
405. 

91.  Code  Civ.  Proc.  N.  T.  5  394 — Piatt  v. 
Hungerford,   116   Fed.   771. 

92.  Pulsifer  v.  Greene,  96  Me.  438. 

93.  Action  at  law  by  a  creditor  against 
the  stockholder  of  an  insolvent  corporation 
— Atlantic  Trust  Co.  v.  Osgood,  116  Fed.  1019. 

94.  Hale   V.   Calder,   113   Fed.   670. 


95.  Parkhurst  v.  Mexican  S.  E.  R.  Co., 
102  111.  App.  507. 

9C.  The  power  to  enforce  stockholder's 
liabilities  given  to  assignees  and  receivers 
by  Laws  1SD7,  c.  341,  is  not  repealed  by 
Laws  1899,  c.  272 — Somers  v.  Dawson,  86 
Minn.  42.  A  right  of  action  under  Laws 
1892,  c.  688,  §  54,  Is  expressly  saved  under 
Laws  1901,  c.  354,  §  5,  and  If  it  be  assumed 
that  the  effect  of  such  chapter  was  to  r( 
peal  section  54,  the  right  of  action  was  pre- 
served by  Laws  1892,  c.  677,  §  31,  which  pro- 
vides that  the  repeal  of  a  law  shall  not 
affect  existing  rights  and  liabilities — Lan- 
caster v.  Knight,  74  App.  Div.   (N.  Y.)   255. 

97.  Heydecker's  Gen.  Laws,  p.  3502,  c.  41. 
§  6,  p.  2920,  c.  36,  §§  54,  55,  p.  2864,  c.  35. 
§  33 — Adams  v.  Wallace,   81   N.   Y.   Supp.   848. 

98.  Action  against  a  stockholder  of  a  full 
liability  corporation  organized  under  Laws 
1900,  c.  567,  §  6,  does  not  fall  within  the 
limitation  of  two  years  prescribed  by  the 
stock  corporation  law.  Laws  1900,  c.  564,  §  55 
— Adams  v.  Slingerland,  39  Misc.  (N.  Y.)  638. 


800 


CORPORATIONS. 


§  16F 


nor  as  an  «sset  of  the  corporation.^'  An  amendment  of  a  statute  relating  to 
the  enforcement  of  stockholders'  liability  so  as  to  allow  the  enforcement  of  such 
liability  in  an  additional  action  if  there  are  parties  against  whom  recovery  cannot 
be  had  in  the  first  action  is  applicable  to  actions  pending  at  the  time  of  its  en- 
actment.^ Where  laws  relating  to  the  personal  liability  of  stockholders  are  amend- 
ed but  existing  rights  are  saved,  claims  due  before  the  enactment  of  the  amend- 
ment are  enforceable  under  the  statute  as  it  stood  prior  thereto.^ 

For  what  debts  liable. — A  stockholder  who  has  transferred  his  stock  is  liable  for 
a  sura  becoming  due  under  a  lease  existing  at  the  time  of  his  transfer,  though  the 
instalment  of  rent  had  not  then  matured.^  The  liability  of  a  stockholder  continues, 
though  notes  are  renewed  after  the  stockholder  sells  his  stock,  or  accounts  are 
thereafter  closed  by  note.*  The  contingent  liability  arising  from  a  corporation's 
guaranty  of  payment  of  a  debt  does  not  in  itself  create  a  debt  rendering  the  holder 
a  creditor,  entitling  him  to  impose  individual  liability  on  stockholders.^  Under 
statutes  rendering  a  stockholder,  who  has  been  unfaithful  in  the  transaction  of 
corporate  business,  liable  for  corporate  debts,  there  must  be  a  failure  of  care 
which  may  be  attributed  to  incompetency  or  lack  of  business  qualifications.® 
The  shareholders  become  liable  to  the  creditors  of  a  corporation  when  they  ac- 
quiesce in  any  arrangement  by  which  property  is  taken  at  a  fictitious  value  in  pay- 
ment for  corporate  stock.    Actual  fraud  is  not  necessary.'^ 

Ultra  vires  acts. — Where  it  is  provided  by  statute  that  an  individual  liability 
of  stockholders  shall  secure  dues  from  corporations,  ultra  vires  obligations  in- 
curred by  the  corporation  are  not  included  though  the  corporation  itself  cannot 
deny  their  validity.*  Where  a  corporation  incurs  debts  and  acts  outside  of  its 
statutory  powers,  the  members  are  liable  as  a  partnership.® 

Liability  on  failure  to  file  certificates  or  returns}^ — A  corporate  charter  is 
a  grant  not  to  a  corporate  body  but  to  individuals  who  are  named  in  the  act  and 
their  successors  who  are  the  corporate  body  which  they  constitute,  and  such  stock- 
holders may  shield  themselves  under  the  corporate  character  and  name  so  long  as 
the  corporation  observes  conditions  which  are  imposed  by  reference  to  general  stat- 
utes, but  when  they  in  their  corporate  character  fail  to  fulfill  this  duty  they  may 
be  pursued  again  as  individuals.^^  Though  a  creditor  may  have  knowledge  that 
the  corporation  is  insolvent,  the  stockholders  may  nevertheless  be  liable  individually 
in  case  of  failure  to  file  a  statutory  certificate  of  financial  condition,  and  though 
the  statute  provides  that  notices  shall  not  be  necessary  after  an  assignment  for 


99.     Pfaft  V.  Gruen  (Mo.  App.)  69  S.  "W.  405. 

1.  McNaughton   v.   Ticknor,    113   Wis.    555. 

2.  Action  at  law  for  his  individual  bene- 
At,  under  Laws  1892,  p.  1841,  c.  688,  §  54, 
may  be  brought  by  a  creditor  whose  claim 
was  due  before  the  enactment  of  laws  1901, 
p.  971,  c.  354,  making  the  creditor's  remedy 
one  in  equity  to  enforce  contribution — Lang 
V.  Lutz,  83  App.  Div.   (N.  T.)   534. 

3.  4.  Hyatt  v.  Anderson's  Trustee,  25  Ky. 
u.  R.  132,  "74  S.  W.  1094. 

5.  McHale  v.  Moore   (Kan.)    71  Pac.   522. 

6.  Evidence  held  Insufficient  to  show  un- 
faithfulness on  the  part  of  stockholders  in  a 
warehouse  company  under  Gen.  St.  1894,  § 
2600,  subd.  3 — Rice  v.  Madelia  Farmers' 
Warehouse  Co.,   87  Minn.   398. 

7.  The  measure  of  damages  is  the  differ- 
ence between  the  par  value  of  the  shares  and 
the  actual  value  of  the  property — McClure  v. 
Paducah  Iron  Co.,  90  Mo.  App.  567. 


8.  Const.  Kan.  art.  12,  §  2 — Ward  v.  Jos- 
lin,    186    U.    S.    142,    46    Law.    Ed.    1093. 

9.  Debts  contracted  by  a  grange  Incor- 
porated under  act  1876,  2  Gen.  St.  p.  1644,  in 
the  transaction  of  a  mercantile  business — 
Henry  v.  Simanton    (N.  J.  Ch.)   54  Atl.  153. 

10.  Gen.  Laws  1896,  c.  180.  §  1'',  does  not 
exclude  from  the  operation  of  chapter  ISO. 
a  corporation  which  by  the  terms  of  its 
charter  is  made  subject  to  the  provisions 
of  chapter  155  and  any  amendment  thereto, 
though  chapter  155  has  been  repealed  and 
180  substituted  for  it — Starkweather  v. 
Brown   (R.  I.)    55  Atl.   324. 

11.  Where  it  was  intended  to  Incorporate 
the  provisions  of  Pub.  St.  1882,  tit.  19,  cc. 
152,  155.  into  the  charter  of  a  corporation, 
and  such  provisions  imposed  the  duty  of 
making  returns  as  to  the  condition  of  the 
corporation  on  the  corporation,  the  stock- 
holders become  liable  on  default  of  the  cor- 
poration in  such  regard — Starkw^enllier  v. 
Brown   (R.  L)   55  Atl.  201. 


PERSONAL    LIABILITY    OF    STOCKHOLDERS. 


801 


creditors  and  the  corporation  subsequently  makes  such  an  assignment.*'  On  a 
proceeding  by  judgment  creditors  to  enforce  a  penalty  prescribed  by  statute  on 
stockholders  for  failure  to  make  returns,  the  residuary  legatee  of  a  stockholder 
cannot  be  made  a  party."  Where  a  contract  by  the  corporation  \vith  an  individual 
stockholder  has  been  merged  into  a  subsequent  contract  with  a  company  of  which 
the  stockholder  is  the  manager,  the  corporation  stockholders  cannot  as  against  an 
action  to  enforce  their  individual  liability  for  the  amount  due  under  the  new 
contract  urge  as  a  defense  that  the  individual  stockholder  had  failed  to  pay  for 
his  stock  so  that  no  return  could  be  made  as  required  by  a  statute  to  relieve 
stockholders  from  liability  for  corporate  indebtedness.^* 

Persons  liable  as  stochholders. — Persons  who  allow  stock  to  be  issued  to  them 
and  make  no  objection  for  many  years  may  be  regarded  as  stockholders  and  liable 
as  such,  though  the  regularity  of  the  issue  is  subject  to  contest  and  they  have  paid 
no  consideration.^"^ 

The  transfer  of  stock  in  good  faith  to  a  responsible  person  releases  liability.*" 
The  burden  of  proving  that  the  transferee  is  responsible  is  on  the  stockholder,** 
and  if  to  avoid  liability  he  transfers  to  an  insolvent  who  subsequently  transfers 
to  another  who  is  also  insolvent,  the  primary  stockholder  is  not  relieved  from 
liability  by  the  fact  that  he  did  not  know  of  the  insolvency  of  the  last.*®  It  may 
be  shown  that  an  assignment  of  their  shares  by  stockholders  was  fraudulent  and 
for  the  purpose  of  avoiding  liability.*®  In  case  of  a  fraudulent  transfer  of  stock 
in  an  insolvent  corporation  to  an  insolvent,  for  the  purpose  of  escaping  liability, 
a  recognition  of  the  transfer  by  the  corporation  will  not  relieve  the  original 
holder.'" 

Eecognition  of  a  subsequent  transferee  as  a  stockholder  by  the  issuance  of  a 
new  stock  certificate  and  payment  of  dividends  may  operate  as  a  waiver  of  by- 
laws requiring  the  transfer  to  be  approved  by  the  board  of  directors  and  that  the 
transferee  shall  sign  the  by-laws.^* 

Creditors  who  do  not  file  their  claims  within  the  statutory  period  after  stock  is 
assigned,  are  not  aided  by  the  fact  that  a  creditor  beginning  his  proceeding  within 
the  statutory  limit  asked  leave  to  sue  for  himself  and  all  other  creditors,  if  there 
was  no  order  allowing  such  a  suit.^^ 

Conclusiveness  of  judgment  against  corporation. — The  fact  that  a  judgment  has 
been  obtained  against  the  corporation  does  not  prevent  the  stockholder,  when  it  is 
sought  to  enforce  his  individual  liability,  from  showing  that  the  obligation 
of  the  corporation  was  ultra  vires.^^  In  the  United  States  courts  it  is  held  that  the 
judgment  is  conclusive  unless  impeached  for  want  of  jurisdiction  or  for  fraud.''* 


12.  Gen.  Laws,  c.  180,  §§  11,  12 — Elsbree 
V.  Burt,   24  R.  I.   322. 

13.  Bill  to  enforce  a  penalty  Imposed  by 
chapter  155  of  the  Public  Statutes  of  1882. 
corresponding  to  Gen.  Laws  1896,  c.  180,  p. 
556 — Starkweather  v.  Brown  (R.  L)  55  Atl. 
201. 

14.  Flather  v.  Economy  Slugging  Mach. 
Co.,   71  N.   H.   398. 

15.  Hecht  V.  Phenix  "Woolen  Co.,  121  Fed. 
188. 

16.  Parkhurst  v.  Mexican  S.  B.  R.  Co.,  102 
in.   App.   507. 

17.  18.  People's  Home  Sav.  Bank  v.  Rick- 
ard    (Cal.)    73   Pac.   858. 

19.  Lamson  v.  Hutchlngs  (C.  C.  A.)  118 
Fed.    321. 

20,  21.  People's  Home  Sav.  Bank  v.  Rlck- 
*.rd    (Cal.)   73  Pac.  858. 

Cur.  Law — 51. 


22.  No  question  of  common  Interest  was 
raised  by  the  first  suing  creditor  and  the 
creditors  were  not  so  numerous  that  they 
could  not  have  been  brought  in — Hyatt  v. 
Anderson's  Trustee,  25  Ky.  L.  R.  132,  74  S. 
W.    1094. 

23.  Under  the  Kansas  Const,  and  Laws — 
Ward  V.  Joslin,  186  U.  S.  142,  46  Law.  Ed. 
1093. 

24.  American  Nat.  Bank  v.  Supplee  (C.  C. 
A.)  115  Fed.  657.  A  judgment  against  a  cor- 
poration fixing  its  liability  as  a  stockholder 
In  a  bank  is  conclusive  on  its  stockholders, 
and  the  power  of  the  corporation  to  become 
a  subscriber  cannot  be  questioned  by  one 
of  its  stockholders  when  sued  in  another 
jurisdiction  to  enforce  Its  statutory  liabil- 
ity— Martin  v.  Wilson  (C.  C.  A.)  120  Fed, 
202. 


802 


CORPORATIONS. 


§  16F 


In  Michigan  it  is  held  that  a  judgment  on  a  note  is  not  conclusive  but  that  the 
stockholders  may  show  failure  of  consideration,  and  the  judgment  cannot  be 
sustained  because  another  judgment  on  a  different  claim  for  a  greater  sura  might 
have  been  obtained. -° 

Exhaustion  of  remedy  against  corporation. — Under  the  Nebraska  statute  be- 
fore a  stockholder  can  be  proceeded  against,  the  creditor  must  reduce  his  demand  to 
a  judgment  and  exhaust  the  corporate  property,^**  and  the  rule  in  the  federal  courts 
as  to  general  creditors  is  the  same.-^  Before  the  receiver  may  enforce  the  stock- 
holder's liability  in  Kansas,  he  must  first  fix  the  amount  needed  to  pay  the  cor- 
porate debts,  by  an  action  against  the  corporation  and  all  resident  stockholders.^'' 

Necessity  for  a  judgment  and  the  return  of  an  execution  thereon  unsatisfied 
may  be  removed  if,  in  a  proceeding  for  the  dissolution  of  the  corporation,  all  cred- 
itors are  enjoined  and  restrained  by  final  judgment  from  instituting  and  prosecuting 
any  action  against  the  corporation  to  enforce  their  claims.-^ 

Vi'hen  liability  accrues. — Under  some  statutes  the  liability  on  insolvency  of 
the  corporation  does  not  become  fixed  until  the  enforcement  of  such  liabilty  is 
determined  to  be  necessary  and  authority  given  therefor.^" 

Where  the  statute  permits  an  action  to  be  brought  by  creditors  on  dissolution. 
debts  being  left  unpaid,  maturity  of  the  debts  is  not  essential  to  an  action. ^^ 

Wliere  the  liability  becomes  enforceable  on  suspension  of  business,  the  cor- 
poration is  regarded  as  suspended  where  the  business  of  the  corporation  has  been 
stopped  for  a  year,  winding  up  has  begun  and  directors'  meetings  are  no  longer 
held.^'*     Suspension  of  business  alone  is  sufficient.'^ 

Limitations  do  not  run  in  favor  of  stockholders  until  the  deficiency  of  the 
corporate  assets  is  determined  and  proceedings  begun  to  collect  such  deficiency,'* 
though  under  the  Pennsylvania  statute,  the  limitation  against  an  action  to  en- 
force the  stockholder's  liability  commences  at  the  time  the  debt  is  due  from  the 
corporation."'  The  necessary  administration  of  the  corporate  property  while  it 
is  winding  up  its  affairs  is  not  a  doing  business  suspending  the  statute  of  limita- 
tions.'" The  fact  that  proceedings  are  pending  to  administer  the  property  of  a 
corporation  under  an  insolvency  law  of  the  state  does  not  prevent  the  running  of 
limitation  against  the  right  of  action  of  creditors  in  another  state  to  sue  to  enforce 
the  statutory  liabilities  of  stockholders.'^ 

Who  viay  sue. — Statutory  provisions  that  on  dissolution  of  a  corporation 
the  trustees  shall  be  trustees  for  the  creditors  and  stockholders,  and  shall  collect 
and  pay  the  outstanding  debts  do  not  prevent  the  appointment  of  a  receiver  of  an 
existing  insolvent  corporation,  and  his  authorization  to  enforce  stockholder's  lia- 
bility.'* The  right  of  a  receiver  to  sue  in  his  own  name  to  enforce  a  stockholder's 
liability  given  by  an  appointment  and  leave  to  sue  under  the  statute  of  another 


25.  McBryan    v.    Universal    Elevator    Co. 
(Mich.)    89   N.   W.   683. 

26,  27.     New     Hampshire     Sav.     Bank     v. 
Richey   (C.  C.  A.)    121  Fed.   956. 

28.     Evans  v.  Nellis,  187  U.  S.  271,  47  Law. 
Ed.  173. 


2». 
634. 
30. 
31. 
32. 


Lang    V.    Lutz,    83    App.    Dlv.     (N.    Y.) 


Hale  V.  Cushman,   96  Me.   148. 

McHale   v.    Moore    (Kan.)    71    Pac.    522. 

Gen.    St.    1899,    §    1268— Jones    v.    Slo- 
necker    (Kan.)    71   Pac.    573. 

S3.     Piatt  v.  Hungerford,  116  Fed.  771. 

34.     Hale  V.  Cushman,  96  Me.  148. 

85.     Act  April   29,   1874,  §5   14,   15;   P.   L.   73 


amended  Act  April  17,  1876;  P.  L.  30 — Bower 
V.  Cyano  Chemical  Co.,   20   Pa.  Super.   Ct.   33. 

36.  Gen.  St.  1899,  §  1268  provides  that  the 
right  of  action  by  corporate  creditors  ac- 
crues on  suspension  of  business  for  a  year 
— Jones  V.  Slonecker   (Kan.)    71   Pac.  573. 

37.  Federal  court  applying  the  Alinnesota 
decisions  with  regard  to  local  corporations 
to  a  New  York  action  and  declaring  a  claim 
barred  which  was  not  brought  within  six 
years  after  insolvency — Hilliker  v.  Hale  (C. 
C.  A.)    117  Fed.   220. 

38.  1  Ball.  Codes  &  St.  §  4274;  2  Ball.  Ann. 
Codes  &  St.  §  5456 — New  York  Nat.  Exch. 
Bank  v.  Metropolitan  Sav.  Bank,  28  Wash. 
553,  68  Pac.  905. 


§  16F 


PERSONAL    LIABILITY    OF    STOCKHOLDERS. 


803 


state  may  be  recognized  in  a  federal  court.'®  Leave  of  court  is  not  necessary  to 
allow  a  receiver  appointed  at  the  suit  of  a  judgment  creditor  to  enforce  a  stock- 
holder's liability.*"  The  receiver  is  not  authorized  to  enforce  a  stockholder's  lia- 
bility, where  such  liability  is,  by  the  statute  which  creates  it,  made  not  a  general 
asset  of  the  corporation,  but  one  recoverable  only  for  the  individual  benefit  of 
the  creditor." 

Defenses.*^ — A  discharge  under  the  national  bankrupt  act  does  not  release 
stockholder's  individual  liability.*^  The  stockholder's  liability  may  be  discharged 
by  a  payment  to  the  receiver,  though  the  receiver  has  no  power  to  enforce  the 
same.**  As  against  an  attempt  to  enforce  a  stockholder's  individual  liability  to 
creditors,  an  indebtedness  due  from  the  corporation  cannot  be  set  olf,*^  but  pay- 
ment of  a  note  of  the  corporation  may  be  set  up  as  an  equitable  defense  though 
the  note  has  not  been  formally  assigned  to  the  stockholder,*®  or  an  assignment 
of  a  judgment  against  the  corporation  in  favor  of  a  third  party  for  more  than 
the  amount  due  on  the  stockholder's  share. *^ 

Pleading. — If  in  an  action  by  judgment  creditor  only  the  judgment  and  the  fact 
of  nonsatisfaction  is  averred,  nil  debit  is  a  proper  plea.*^  The  fact  that  a  similar 
action  is  pending  must  be  taken  advantage  of  in  an  action  to  enforce  stockholder's 
liability  by  answer  or  special  demurrer.*®  Though  payment  has  been  pleaded  as  an 
equitable  set-off,  an  amendment  alleging  equitable  ownership  of  the  debt  alleged 
to  be  paid  is  permissible.""  Where  a  stockholder  desires  to  controvert  the  amount 
of  the  debts  or  the  time  at  which  they  were  created  in  a  proceeding  to  enforce  his 
additional  liability,  he  must  answer  the  ^editor's  petition  and  he  cannot  raise 
the  objections  by  mere  exception  to  the  commissioner's  report.''^ 

Procedure. — The  statutory  method  of  enforcing  the  liability  of  stockholders 
must  be  followed."^  On  reversal  of  a  proceeding  to  enforce  a  stockholder's  lia- 
bility under  one  section  of  the  statute,  the  creditor  may  pursue  the  remedy  offered 
by  another  section."^  In  Illinois,  the  liability  of  resident  stockholders  of  a  foreign 
corporation  which  is  insolvent  cannot  be  determined  on  a  creditor's  bill.'^*  Under 
certain  statutes,  all  stockholders  must  be  made  parties  though  they  cannot  be 


39.  Burr   v.    Smith,    113    Fed.    858. 

40.  The  other  creditors  need  not  be 
brought  in  nor  an  aUegation  made  that  the 
suit  is  for  their  benefit  tog-ether  with  such 
other  creditors  as  may  choose  to  come  in — 
McBryan  v.  Universal  Elevator  Co.  (Mich.) 
89  N.   W.    683. 

41.  Gen.  St.  Kan.  1868.  §§  32,  44 — Evans  v. 
Nellls,  187  U.  S.  271,  47  Law.  Ed.  173. 

42.  Compromise  of  proceedings  to  enforce 
stockholder's  liability  held  not  to  include 
liability  on  stock  transferred  by  him  to  an 
insolvent — People's  Home  Sav.  Bank  v. 
Rickard    (Cal.)    73  Pac.   858. 

43.  Liability  under  Gen.  Laws,  c.  180 — 
Elsbree  v.  Burt,  24  R.  L  322. 

44.  Strauss  v.  Denny,   95   Md.   690. 

45.  Minnesota  corporation — Burget  v. 
Robinson  (C.  C.  A.)  113  Fed.  669;  Hale  v. 
Calder.    113   Fed.   670. 

4G.  Kansas  corporation  (St.  1883,  c.  223, 
§  14;  Rev.  Laws,  c.  173,  §  28) — Sargent  v. 
Stetson,  181  Mass.  371. 

47.  Evidence  held  sufficient  to  show  that 
the  assignment  was  prior  to  the  action — 
American  Freehold  Mortg.  Co.  v.  Brower 
(Miss.)    32   So.   906. 

48.  Elsbree  v.  Burt,   24  R.  L  322. 

49.  Laws  1897,  c.  341 — Somers  v.  Dawson, 
86  Minn.   42. 


50.  -Action  to  enforce  stockholder's  lia- 
bility In  foreign  corporation — Rev.  Laws,  c. 
173,   §  34 — Sargent  v.   Stetson,   181   Mass.   371. 

51.  Hyatt  V.  Anderson's  Trustee,  25  Ky. 
L.  R.  132,  74  S.  W.  1094. 

52.  The  remedy  by  motion  for  an  order 
awarding  execution  against  Btockholders 
and  corporations  for  the  collection  of  cor- 
porate judgments  cannot  be  invoked  where 
the  record  does  not  show  that  the  liability 
existed  prior  to  the  taking  effect  of  Laws 
1898,  0.  10,  §  14,  p.  54,  repealing  such  remedy 
and  providing  for  a  receivership  proceedings 
— Henley  v.   Stevenson    (Kan.)    72  Pac.   518. 

53.  After  reversal  of  an  action  under  Gen. 
St.  1889,  par.  1192.  to  charge  a  stockholder 
with  the  amount  of  the  judgment  on  which 
an  execution  has  been  returned  unsatisfied, 
a  creditor  may  proceed  under  Gen.  St.  1899, 
par.  1204,  allowing  a  stockholder  to  be  sued 
on  a  corporate  indebtedness  when  the  cor- 
poration has  suspended  business  for  more 
than  one  year,  and  the  fact  that  the  notes 
on  which  the  claim  is  based  are  placed  In 
judgment  against  the  corporation  pending 
such  action,  does  not  prevent  a  recovery — 
Thomas  v.  Remington  Paper  Co.  (Kan.)  73 
Pac.    909. 

54.  Parkhurst  v.  Mexican  S.  E.  R.  Co..  103 
111.  App.  507. 


804 


CORPORATIONS. 


§  1(»G 


served,"  but  if  by  statute  a  stockholder  is  severally  and  individually  liable  he  cannot 
insist  that  his  co-stockholders  be  joined.^®  In  Kansas  all  stockholders  in  the  juris- 
diction of  the  court  must  be  made  parties.^'  In  an  action  in  Missouri  under  tlie 
Ohio  statutes  all  stockliolders  resident  in  Missouri  should  be  joined.'® 

(§  16)  G.  Eights  and  remedies  of  creditors  against  directors  and  other  offi- 
cers.— Eeceivers  of  an  insolvent  corporation  will  not  be  directed  to  enforce  liabilities 
of  promoters,  officers,  and  directors  until  the  amount  of  deficiency  has  been  ascertain- 
ed on  administration  of  visible  assets.^''  Directors  are  not  personally  liable  for  the 
expenses  of  a  receiver  appointed  in  an  action  by  an  insolvent  corporation  for  the  pur- 
pose of  reaching  particular  property.®**  The  trustees  in  bankruptcy  can  enforce 
such  remedies  against  officers  and  stockholders  as  accrue  to  all  creditors,  or  distinct 
classes,  not  such  as  are  applicable  to  particular  creditors  only.®^ 

Liahility  for  debts  contracted  before  record  of  certificate  of  organization. — 
Liabilities  imposed  on  directors  and  officers  for  debts  contracted  in  the  name  of  the 
corporation,  before  record  of  certificate  of  complete  organization,  extend  to  debts 
contracted  with  them  as  officers  of  the  corporation  de  facto.  Under  such  statutes 
a  debt  is  regarded  as  made  by  the  officers,  if  they  are  in  any  way  connected  with 
it  or  approve  or  direct  it.®- 

Special  charter  liahilities. — Where  the  charter  of  a  corporation  makes  the  di- 
rectors liable  for  debts  incurred  during  their  tenure  of  office,  an  action  to  enforce 
such  liability  may  be  maintained  by  one  creditor  in  behalf  of  all,  all  directors 
who  are  liable  must  be  joined,  directors  who  cannot  be  personally  served  must  be 
served  by  publication,  and  if  the  corporation  has  been  dissolved,  a  receiver  who  has 
taken  possession  of  the  assets  must  be  made  a  party  dcfendant.*^^ 

Liability  for  misa ppropriation  of  funds. — A  constitutional  provision  fixing  a 
liability  on  directors  of  corporations  for  misappropriation  of  funds  is  not  a  denial 
of  equal  protection  of  laws  in  the  meaning  of  the  14th  amendment  of  the  United 
States  constitution."  Such  a  statute  is  self  executing.*'  Where  directors  by  en- 
gaging in  a  business  outside  the  legitimate  powers  of  the  corporation  waste  or  lose 
the  corporate  assets,  they  are  liable  to  creditors  to  the  extent  of  the  assets  thu^ 
lost  by  them.®'  Wliere  a  managing  officer  of  a  corporation  and  its  president  are 
shown  to  have  received  assets  of  the  corporation,  they  are  liable  to  account  to 
judgment  creditors  of  the  corporation  on  a  creditors'  bill.®^  The  directors  of  a 
corporation  cannot  be  held  personally  liable  by  a  creditor  for  the  transfer  of  its 
assets,  unless  by  his  bill  it  is  sho"UTi  that  they  have  received  the  proceeds  of  such 
assets.®*  The  directors  of  a  corporation  cannot  be  held  individually  liable  for 
mere  participation  in  an  ultra  vires  act  without  any  averment  or  charge  that  they 
individually  in  any  way  profited  by  the  act  or  without  a  showing  of  fraud.®^  Dam- 
ages for  waste  of  corporate  property  may  be  recovered  by  the  receiver  in  an  equita- 
ble proceeding  for  an  accounting  against  the  directors.""     A  proceeding  in  equity 


53.  Rev.  St.  Ohio,  §  3260  amended  1894 — 
Middletown  Nat.  Bank  v.  Toledo,  A.  A.  &  N. 
M.  Ry.  Co..  113  Fed.  587. 

.56.     Pulsifer  v.  Greene,   96  Me.   438. 

57.  Action  under  Laws  1898.  c.  10,  to  col- 
lect a  judgment  against  the  corporation  from 
the  stockholders — Waller  v.  Hamer,  65  Kan. 
168,   69   Pac.   185. 

.'>8.     Pfaff  V.  Gruen  (Mo.  App.)   69  S.  W.  405. 

.'59.  Land  Title  &  Trust  Co.  v.  Asphalt  Co., 
121  Fed.  5S7. 

60.  Ephraim  v.  Pacific  Bank,  136  Cal.  646, 
69    Pac.    436. 

61.  Bowker  v.  Hill,  115  Fed.  528. 


62.  Rev.  St.  c.   32,   §  18 — Seymour  v.  Rich- 
ardson Fueling  Co..   103  111.  App.   625. 

63.  Bauer  v.  Parker.  82  App.  Div.    (N.  Y.) 
289. 

64.  "Winchester    v.    Howard.    136    Cal.    432, 
64  Pac.   692.   69  Pac.  77. 

65.  Const,  art.  12,  §  3 — Winchester  v.  How- 
ard. 136  Cal.   432.   64  Pac.   692,   69  Pac.   77. 

60.     Dietrich    v.    Rothenberger.    25    Ky.    L. 
R.    338,    75   S.   W.    271. 

67.  Benedict    v.    T.    L.    V.    Land    &    Cattle 
Co.    (Xeb.)    92   N.   W.    210. 

68,  69.     Force  v.  Age-Herald  Co.,   136  Ala. 
271. 


§  16G 


PERSONAL  LIABILITY  OF  OFFICERS. 


805 


lies  at  the  instance  of  the  receiver  for  a  discovery  and  accounting,  where  the  di- 
rectors have  acted  wrongfully  in  wasting  and  misappropriating  the  corporate  prop- 
erty causing  it  to  become  apparently  insolvent.^^  Causes  of  action  against  di- 
rectors for  their  fraudulent  use  of  corporate  property  may  be  joined  by  the  re- 
ceiver though  their  participation  and  liability  is  not  equal."  A  money  judgment 
for  the  amount  of  debts  improperly  paid  may  be  rendered  on  a  complaint  which 
seeks  the  recovery  of  corporate  bonds  and  stock  sold  a  director  or  their  value.''' 

Where  from  the  articles  of  incorporation  of  a  mutual  insurance  company  a 
trust  appears  in  the  directors  and  officers,  it  Mali  be  regarded  as  an  express  trust 
preventing  the  running  of  the  statute  of  limitations  as  against  creditors  and  the 
personal  representatives  of  the  officers  and  directors  are  in  no  more  favorable  posi- 
tion.^* An  action  for  wrong-doing  of  directors  is  not  necessarily  begun  against 
them  while  they  are  in  office.''* 

Where  the  directors  of  a  corporation  have  wrongfully  made  payments  to  the 
directors  of  the  second  corporation  in  purchase  of  such  directors'  rights  in  the 
second  corporation,  they  cannot  plead,  as  against  an  action  against  them  to  recover 
a  balance  remaining  unsatisfied,  a  release  which  the  receiver  had  executed  to  the 
directors  of  such  second  corporation  in  compromise  of  a  proceeding  which  he 
brought  against  such  directors  originally  to  recover  the  amount  paid  by  the  first 
directors  to  them.''" 

LiahiliUj  for  creation  of  excessive  debt. — In  order  to  hold  directors  personally 
liable  for  an  excessive  debt  created,  all  the  conditions  under  the  statute  must  be 
established.'^  If  the  statute  make  the  officers  personally  liable  for  debts  in  excess 
of  capital  stock,  there  is  no  liability  unless  such  excess  exists  at  the  time  suit  is 
brought. ^^ 

Liability  for  loans  to  stoclcliolders.''^ — In  a  proceeding  to  enforce  the  personal 
liability  of  a  director  under  the  Massachusetts  statute  for  debts  incurred  between 
the  time  of  a  loan  to  the  stockholder  and  the  repayment  thereof,  a  release  executed 
by  plaintiff's  creditor  in  assignment  proceedings  cannot  be  pleaded  as  against 
a  default  judgment  obtained  by  the  creditor  against  the  corporation,  and  a  director 
is  not  aided  by  the  fact  that  he  was  absent  from  the  state  during  the  action  at  law, 
since  that  is  not  enough  to  show  that  he  was  prevented  from  defending  by  fraud  or 
accident,  nor  is  he  aided  by  the  corporation's  failure  to  plead  the  release.  He 
has  no  superior  equity  than  the  creditor  and  he  cannot  collaterally  attack  the 
judgment.*"     The  liability  imposed  by  such  statute  is  not  a  debt  within  the  meaning 


70,  71,  73.  Mabon  v.  Miller,  81  App.  Dlv. 
(N.   Y.)    10. 

73.  Payment  was  from  the  proceeds  of 
the  sale — Graham  v.  Carr.  130  N.  C.  271. 

74.  Construing  Rev.  St.  1S98.  §  2081.  subd. 
5.  defining  express  trusts — Boyd  v.  Mutual 
Fire  Ass'n    (Wis.)    90   N.  W.   1086. 

75.  Boyd  V.  Mutual  Fire  Ass'n  (Wis.)  90 
N.  W.   10S6. 

76.  The  release  ran  to  such  directors  and 
contained  a  provision  that  its  execution 
should  not  affect  any  organization  of  the 
receiver  against  any  person  not  named 
therein — Gilbert  v.   Finch.   173   N.  Y.   455. 

77.  In  a  proceeding  under  Stock  Corpora- 
tion Law,  §  24,  Laws  1890,  p.  1070,  c.  564,  as 
amended  by  Laws  1892,  p.  1830,  c.  688,  which 
makes  directors  of  a  corporation  consenting 
to  the  creation  of  an  indebtedness  not  se- 
cured by  mortgage  in  excess  of  its  paid  up 
capital    stock    personally    liable,    there    must 


be  evidence  offered  at  the  trial  to  establish 
that  the  indebtedness  in  excess  of  the  paid 
up  capital  stock  was  not  secured  by»  mort- 
gage— Irving  Nat.  Bank  v.  Moynihan,  84 
App.  Div.    (N.  Y.)   301. 

78.  No  liability  arises  where,  before  ac- 
tion is  brought,  assignees  for  creditors  of 
the  corporation  have,  by  the  payment  of 
dividends,  reduced  the  debts  to  an  amount 
less  than  the  capital  stock — Flint  v.  Boston 
Woven   Hose  &  Rubber  Co.,   183   Mass.   114. 

79.  Evidence  held  to  show  assent  to  a 
loan  to  a  stockholder  within  the  meaning 
of  Pub.  St.  1882,  c.  106,  §  60.  rendering  a 
director  personally  liable  for  debts  con- 
tracted between  the  time  of  such  loan  and 
its  re-paj'ment — Old  Colony  Boot  &  Shoe  Co. 
V.  Parker-Sampson-Adams  Co.  (Mass.)  67  N. 
E.    870. 

SO.  Old  Colony  Boot  &  Shoe  Co.  v.  Par- 
ker-Sampson-Adams Co.  (Mass.)  67  N.  E. 
870. 


S06 


CORPORATIONS. 


§  16U 


of  the  laws  relating  to  insolvency  or  bankruptcy,  and  a  discharge  in  bankruptcy 
is  not  a  bar  to  an  action  to  enforce  such  liability.^^ 

Unlawful  payment  of  dividends. — Where  by  statute  the  directors  are  liable 
to  the  corporation  and  its  creditors  in  case  they  pay  dividends  from  the  capital, 
such  liability  exists  though  the  corporation  does  not  dissolve  or  become  insolvent  ;^- 
such  a  statute  is  not  regarded  as  penal  and  may  be  enforced  in  equity.^^  The 
fact  that  such  dividends  induced  complainants  to  purchase  their  stock  may  be 
considered.**  Under  such  statute,  however,  the  action  being  for  the  benefit  of  the 
corporation,  stockholders  may  maintain  it  though  they  retain  the  dividends  or  though 
the  stock  has  been  transferred  to  holders  who  have  not  received  any  of  the  divi- 
dends." 

Unless  it  is  shown  that  in  the  exercise  of  ordinary  diligence  directors  should 
have  known  that  at  the  time  a  dividend  was  voted  and  paid  the  company  was 
insolvent  or  that  they  might  have  known  that  an  indebtedness  greater  than  the 
capital  stock  was  being  created,  they  cannot  be  held  liable.®^  Where  the  statute 
imposes  a  liability  on  directors  in  behalf  of  creditors  for  wrongfiil  payment  of 
dividends  when  the  capital  stock  has  not  been  fully  paid  in,  when  they  are 
paid  other  than  from  the  net  profits,  or  when  the  corporation  is  insolvent  or  in 
danger  thereof,  there  being  no  reason  to  believe  that  the  capital  will  not  thereby 
be  diminished,  the  liability  of  the  directors  is  not  affected  by  the  fact  that  the 
unpaid  capital  is  subsequenth'  collected  and  liability  is  incurred  by  payment  under 
either  of  the  provisions,  and  a  director  need  not  have  taken  an  actual  part  in  the 
pa3"ment,  but  need  only  have  consented  thereto  and  accepted  the  benefits.  The 
giving  of  a  note  does  not  constitute  actual  pa}Tiient  under  such  statute.^^  The 
directors  who  have  wrongfully  authorized  dividends  are  jointly  and  severally 
liable  to  the  creditors  as  a  class,  but  not  as  individuals.  Individual  common-law 
liabilities  of  directors  are  not  included.®* 

In  an  action  against  a  director,  there  need  not  be  a  specific  allegation  that 
the  company  is  a  stock  corporation,  if  facts  are  set  forth  so  that  such  fact  ap- 
pears.*^ Defendants  who  are  not  served  must  be  brought  in  though  the  action 
may  be  maintained  against  the  defendant  who  was  served  or  the  defendants  not 
served  have  a  good  defense.^ 

Liability  as  to  certificate  of  payment  of  stocTc. — A  president  who  under  the 
advice  of  counsel  makes  a  certificate  that  the  capital  stock  has  been  paid  in  does 
not  become  personally  liable  for  the  debts  of  the  corporation,  his  act  being  in 
good  faith.®^     Where  a  false  certificate  has  been  given,  a  creditor  may  be  entitled 


81.  Pub.  St.  1882,  c.  106,  §  60;  Bankruptcy 
Act  1898,  §  17 — Old  Colony  Boot  &  Shoe  Co. 
V.  Parker-Sampson-Adams  Co.  (Mass.)  67  N. 
E.    870. 

82.  Pub.  Laws  1896.  c.  185,  §  30 — Appleton 
V.  American  Mailing  Co.  (N.  J.  Law)  54  Atl. 
454.  The  lower  court  held  that  the  stock- 
holders could  not  compel  the  directors  to 
repay  the  amount  of  such  dividends  to  the 
corporation  unless  the  assets  were  insuffi- 
cient to  pay  the  corporation  creditors  (Sess. 
Laws  1896.  c.  185,  §  30) — Siegman  v.  Maloney, 
63  N.  J.  Eq.  422. 

83.  Appleton  v.  American  Malting  Co.  (N. 
J.  Law)  54  Atl.  454.  See  contra  decision  of 
lower  court — Siegman  v.  Maloney,  63  N.  J. 
Eq.   422. 

84.  Appleton  v.  American  Malting  Co.  (N. 
J.  Law)    54  Atl.  454. 

85.  Siegman  v.  Maloney,  63  N.  J.  Eq.  422; 


Appleton    V.    American    Malting    Co.     (N.    J. 
Law)    54   Atl.    454. 

86.  Evidence  held  insufficient  to  show 
such  knowledge — Chick  v.  Fuller  (C.  C.  A.) 
114   Fed.   22. 

87.  Rev.  St.  1898,  §  1765 — Williams  v. 
Brewster    (Wis.)    93   N.   W.    479. 

88.  Williams  v.  Brewster  (Wis.)  93  N.  W. 
479. 

89.  Allegations  that  company  was  organ- 
ized under  the  General  Manufacture  act  of 
1S48  and  statement  of  the  object  is  sufficient 
— Ginsburg  v.  Von  Seggern.   172  N.  Y.   662. 

90.  Action  to  enforce  statutory  liability 
of  directors — Geoghegan  v.  Luchow,  75  App. 
Div.    (N.  Y.)    581. 

91.  Pub.  St.  c.  106,  §  46  provides  for  such 
certificate,  section  60  makes  an  officer  know- 
ingly signing  a  false  certificate  liable  for 
corporate  debts — International  Paper  Co.  v. 
Gazette  Co.,  182  Mass.  578. 


CORPSES  AND  BURIAL. 


807 


to  a  remedy,  though  he  was  not  deceived  thereby."  If  a  statute  impose  liability 
to  creditors  on  failure  of  the  directors  to  make  and  file  a  certificate  of  the  fully 
paid  capital  stock  within  a  specified  time,  no  extension  of  time  can  be  granted.^^ 

Liability  for  failure  to  file  reports. ^^ — Statutes  making  a  notice  essential  to 
the  enforcement  of  the  liability  of  a  director  to  creditors  on  account  of  failure  to 
make  annual  reports  do  not  apply  to  pending  actions.®^  The  liability  of  an 
officer  for  a  false  report  under  the  New  York  law  is  not  penal  and  subject  to  the 
restrictions  provided  by  statute  as  to  the  place  of  trial  of  actions  to  recover  a 
penalty  or  forfeiture  imposed  by  statute.^"  The  duty  to  make  an  annual  report  as 
to  financial  condition  is  not  removed  by  an  assignment  for  the  benefit  of  cred- 
itors,^^ or  a  mere  discontinuance  of  business.^^  A  co-director  who  is  a  creditor 
may  nevertheless  sue  another  director.®®  The  debt  need  not  be  one  which  was 
to  have  been  paid  within  a  year.^  A  judgment  need  not  first  be  obtained  and 
execution  levied  against  the  corporation.^  Where  it  is  shouTi  that  plaintiff  did 
not  pay  the  debts  declared  on  except  as  agent  for  a  third  person,  he  cannot  enforce 
personal  liability  of  directors  for  failure  to  file  an  annual  report.^  Eenewal  of 
a  note  given  for  a  corporate  debt  by  the  corporation  does  not  toll  a  cause  of  action 
provided  by  statute  against  the  corporate  president  for  failure  to  make  a  certifi- 
cate to  specified  facts,  and  the  limitation  runs  from  the  maturity  thereof.* 

A  director's  personal  liability  resulting  from  failure  to  file  the  required 
annual  report  is  not  affected  by  an  interlocutory  judgment  against  a  person  seeking 
to  enforce  such  liability  granting  an  accounting  against  such  person  as  trustee  in 
the  results  of  which  the  director  was  to  share  proportionately.'' 

Where  it  is  sought  to  hold  a  director  personally  liable  for  failure  to  file  an 
annual  report,  the  director  must  prove  a  waiver  and  the  absence  of  a  waiver  need 
not  be  specifically  found.*  It  is  not  sufficient  that  a  statement  be  filed  which  is 
verified  by  the  president  and  vice-president.''  It  is  not  sufficient  to  state  that  the 
assets  do  not  exceed  a  certain  sum.®  Defendant  may  complain  of  plaintiff's  failure 
to  bring  in  other  defendants,  though  he  has  agreed  to  stipulations  extending  his  time 
to  answer.® 

CORPSES  AND  BUBIAL. 
Property  in  "bodies. — There  may  be  a  recovery  for  injuries  to  a  corpse.*' 


92.  Heard  v.  Pictorial  Press.  182  Mass. 
630. 

93.  Gen.  St.  §  252 — Cannon  v.  Brecken- 
rldge  Mercantile  Co.   (Colo.  App.)  69  Pac.  269. 

94.  The  filing  of  articles  in  the  office  of 
the  secretary  of  state  and  the  calling  of  a 
meeting  at  which  officers  were  elected  and 
a  contract  authorized  which  was  not  com- 
pleted prior  to  Jan.  1,  1900,  does  not  render 
the  directors  personally  liable  on  failure 
to  file  an  annual  report  in  January,  1900, 
the  corporation  articles  not  having  been  filed 
In  the  office  of  the  county  clerk  and  a  de 
facto  existence  not  having  been  established 
— Emery  v.  De  Peyster,  77  App.  Div.  65,  12 
N.  Y.  Ann.   Cas.   218. 

95.  Laws  1899,  c.  354,  §  34 — Shepard  v. 
Fulton,  171  N.  Y.  184;  Staten  Island  Midland 
R.   Co.   v.   Hinchliffe.   170   N.  Y.    473. 

96.  Construing  Stock  Corporation  Law,  s 
31  and  Code  Civ.  Proc.  §  983 — Hutchinson  v. 
Young,  80  App.  Div.   (N.  Y.)   246. 

97.  Stock  Corporation  Law,  §  30 — Hor- 
rockg  Desk  Co.  v.  Fangel,  71  App.  Div.  (N. 
Y.)   313. 

98.  Liability   on    account   of   a   failure   to 


make  an  annual  report  of  financial  condition 
as  required  by  statute  is  not  removed  by  the 
fact  that  a  water  company  discontinues  busi- 
ness, but  nevertheless  maintains  an  action 
to  establish  an  exclusive  right  to  supply 
water  to  a  village  which  has  been  infringed 
by  the  erection  of  a  public  plant — Stevenson 
V.  Cowan,  84  App.  Div.    (N.  Y.)    135. 

99,  1,  2.  Glnsburg  v.  Von  Seggern,  172  N. 
Y.    662. 

3.  Staten  Island  Midland  R.  Co.  v.  Hin- 
chliffe, 170  N.  Y.  473. 

4.  Sanders  &  Hill  Dig.  Ark.  §  1347 — Con- 
tinental Nat.  Bank  v.  Buford  (C.  C.  A.)  114 
Fed.    290. 

5.  Ginsburg  v.  Von  Seggern,  172  N.  Y. 
662. 

6.  Laws  1899,  c.  354 — Shepard  v.  Fulton, 
171   N.   Y.    184. 

7.  Rhodes  v.  Hinds,  79  App.  Div.  (N.  Y.) 
379. 

8.  Lllienthal  v.  Betz,   172  N.  Y.   643. 

9.  Geoghegan  v.  Luchow,  75  App.  Div.  (N 
Y.)    581. 

10.  Relatives  not  allowed  to  recover  for 
mental  anguish   caused   by  witnessing   body 


808 


COSTS. 


Burials.— The  nest  of  kin  of  a  deceased  unmarried  person  has  the  right  to 
the  custody  of  the  body  and  to  decide  upon  its  phice  of  burial/^  and  a  waiver  of 
this  right  can  only  be  established  by  most  satisfactory  evidence  of  free  and 
voluntary  intent  to  that  end.^^ 

An  undertaker  may  be  liable  in  exemplary  damages  for  imposition  in  sub- 
stituting a  cofiSn  where  the  circumstances  indicate  willfulness  and  disregard  of 
rights  and  feelings  of  relatives  paving  therefor.^* 

Removal  of  bodies. — The  court  will  consent  to  the  removal  of  a  body  only 
where  reasons  given  therefor  are  substantial  and  meritorious.^*  The  New  York 
act,  allowing  removal  of  the  body  of  the  widow  of  the  lotowner  by  consent  of  the 
heirs,  is  limited  to  lots  set  apart  to  particular  families,  and  does  not  authorize 
removal  of  such  body  from  an  individual  grave  in  an  undivided  portion  of  the 
cemetery,  without  the  consent  of  the  corporation.^"  The  membership  corporation 
law  of  New  York  allowing  the  removal  of  bodies  from  a  cemetery  owned  by  a  ceme- 
tery corporation  as  defined  in  the  act  confers  no  authority  on  a  court  to  grant  per- 
mission to  remove  a  body  from  a  cemetery  controlled  by  a  corporation,  created  by  a 
special  law  and  not  repealed  by  the  corporation  law.^' 

Graves. — The  fact  that  a  widow  may  not  remove  the  remains  of  her  husband 
will  not  operate  to  deny  her  access  to  the  plot  for  purposes  of  adornment  and 
care.^^ 

Crimes  against  sepulture. — An  indictment  for  disturbing  a  grave  and  re- 
moving a  dead  body  should  state  the  name  of  the  body,^^  or  the  reason  for  not 
stating  that  fact  should  be  averred.^' 

COSTS. 


I  1.     Scope,  Nature  and  Definition.  §  6.     Character    of    Litigation. — A.  Equity. 

8  2.     Power  to  Award.  B.  Appeal  or  Error.     C.  Justices  and  Municl- 

§  3.     Security    for    Costs;   Forma    Pauperis,    pal   Courts. 

§  4.     To  AVbom  and  Against  AVboiu.  §   7.     Amount  and  Items. 

S  5.     Riffbt   Dependent  on  Amount  in  Suit.         §  S.     Procedure  to  Tax  Costs. 

I       §  9.     Enforcement  and  Payment. 

§  1.  Scope,  nature,  and  definition. — By  the  term  costs  as  here  used  is  meant 
all  statutory  allowances  made  in  actions  to  parties  or  their  attome)'s,  guardians  ad 
litem,  or  other  officers  of  the  court,  allowances  for  disbursements  in  the  action,  and 
allowances  of  statutory  sums  as  "costs"  as  well  as  the  taxation  of  fees  in  the  cause.^ 

§  2.  Power  to  award  costs. — Costs  are  not  recoverable  at  common  law.- 
Courts  of  equity  have  power  to  award  costs.'  In  proceedings  in  personam,  the 
court  is  without  power  to  award  costs  against  the  defendant  where  jurisdiction  of 


thrown  out  of  wagon  by  collision  witli  train 
where  body  was  not  injured — Hockenham- 
mer  v.  Lexington  &  E.  R.  Co.,  24  Ky.  L.  R. 
2383,   74   S.    W.    222. 

11,  12.  McEntee  v.  Bonacum  (Neb.)  92  N. 
W.   633.   60   L.   R.   A.   440. 

13.  Substitution  of  cheap  pine  box  too 
small  to  decently  contain  remains,  for  suita- 
ble coffin  paid  for  by  relatives  of  one  dying 
of  smallpox — J.  E.  Dunn  &  Co.  v.  Smith  (Tex. 
Civ.  App.)   74  S.   W.  576. 

14.  "Want  of  sufficient  burial  space  might 
have  been  foreseen — Smith  v.  Shepherd  (N. 
J.  Ch.)    54  Atl.   806. 

15.  In  re  Cohen,  76  App.  Div.   (N.  Y.)   401. 

16.  In  re  Owens,  79  App.  Div.  (N.  Y.) 
236. 

17.  Smith  V.  Shepherd  (N.  J.  Ch.)  54  Atl. 
806. 


18.  "Williamson  v.  State  (Tex.  Cr.  App.)  72 
S.  "W.   600. 

19.  Leach  v.  State  (Tex.  Cr.  App.)  72  S. 
"W.    600. 

1.  Costs  paid  as  an  element  of  damages, 
see  Damages. 

Assessment  of  expenses  of  eminent  domain 
proceedings  as  an  element  of  damage,  see 
Eminent  Domain. 

Commissions,  etc.,  paid  as  compensation 
to  Executors  and  the  like,  see  Estates  of  De- 
cedents; Trusts:  Receivers,  etc. 

2.  Price  V.  Clevenger  (Mo.  App.)  74  S.  "W. 
894. 

3.  And  in  an  action  on  a  foreign  decree  it 
is  not  necessary  to  plead  the  statute  allow- 
ing  costs.     Davis  v.    Cohn,    96   Mo.   App.    587. 


§  4A 


TO    WHOM    AND    AGAINST    WHOM. 


809 


the  person  had  not  been  obtained.*  A  general  prayer  for  relief  is  broad  enough 
to  authorize  the  allowance  of  costs.° 

§  3.  Security  for  costs  and  proceeding  in  forma  pauperis. — Questions  con- 
cerning the  giving  of  and  the  right  to  demand  security  for  costs  being  governed 
by  various  statutory  regulations  will  be  shown  in  the  footnotes,*  nonresidence  of 
the  party  being  generally  ground  for  requiring  security/  If  the  required  security 
is  not  given,*  or  if  the  bond  given  is  not  in  conformity  with  the  statute,  the  com- 
plaint will  be  dismissed,®  or  the  court  may  compel  the  filing  of  security  where  it 
was  not  filed  before  the  commencement  of  the  action.^" 

It  cannot  be  conclusively  presumed  that  the  clerk  approved  the  security.** 

A  party  may  sue  or  defend,*^  or  appeal  in  forma  pauperis/^  whether  residents 
or  nonresidents.**  The  order  permitting  plaintiff  infant  to  sue  in  forma  pauperis 
must  provide  that  the  attorne}'^  prosecute  without  compensation.*" 

§  4.  To  whom  and  against  wJioni  award  should  he  made.  A.  On  termina- 
tion of  actions. — The  general  rule  is  that  the  prevailing  party  is  entitled  to  costs 
of  course,*®  but  they  can  be  charged  only  against  parties  to  the  record.*^     The  de- 


4.  On  dismissal  of  a  petition  in  bank- 
ruptcy for  want  of  jurisdiction  the  court 
cannot  award  costs  against  the  debtor — In  re 
Williams,   120  Fed.   34. 

5.  Saunders  v.  King,  93  N.  W.   (Iowa)   272. 

6.  A  school  district  is  within  Code  Civ. 
Pro.  S  1058  exempting  counties  and  cities 
from  giving  security — Mitchell  v.  Board  of 
Education,  137  Cal.  372,  70  Pac.  180.  Code 
Civ.  Pro.  §  3268  requiring  assignees  in  bank- 
ruptcy to  give  security  is  mandatory — Joseph 
V.  Raff,  75  App.  Div.  (N.  Y.)  447.  An  action 
to  recover  preferences  within  four  months 
of  the  proceedings  In  bankruptcy  is  not  with- 
in the  section — Kronfeld  v.  Liebman.  78  App. 
Div.  (N.  Y.)  437.  Code  Civ.  Pro.  §  3271  does 
not  Include  trustees  in  bankruptcy — Kron- 
feld v.  Liebman,  78  App.  Div.  (N.  Y.)  437. 
Security  should  have  been  required  where 
the  administrator's  complaint  in  an  action 
under  Laws  1902,  c.  600,  fails  to  state  a  cause 
of  action. — Gmaehle  v.  Rosenberg,  SO  App. 
Div.  (N.  Y.)  541.  In  chfvicery  security  may 
be  ordered  after  answer  or  even  after  vaca- 
tion of  a  decree  entered  (Code,  art.  16.  §  152) 
— Watson  V.  Classic,  95  Md.  658.  Liability 
of  attorneys  as  indorsers  of  writ  by  non- 
resident plaintiifs — Johnson  v.  Sprague,  183 
Mass.  102.  Security  for  costs  cannot  be  re- 
quired of  contestant  of  a  will — In  re  Scott's 
Will.  80  App.  Div.  (N.  Y.)  369.  Merely  be- 
cause the  defendant  is  the  committee  of  an 
Insane  person  is  not  ground  for  requiring 
plaintiff  to  give  security  for  costs.  Code 
Civ.  Pro.  §  3271  provides  that  when  the  plain- 
tiff Is  the  committee  the  defendant  may  re- 
quire security — Kelly  v.  Kelly,  77  App.  Div. 
(N.  Y.)  519.  On  appeal  from  a  justice's  court 
appellant  may  be  required  to  give  security 
for  costs — State  v.  Edwards.  109  La.  210. 

7.  Under  Wis.  Rev.  St.  1898.  §  2942  it  is 
discretionary  to  order  security.  Discretion 
held  properly  exercised  though  the  applica- 
tion was  based  on  §§  2943  et  seq.  under  which 
it  could  not  have  been  ordered — Colbeth  v. 
Colbeth  (Wis.)  93  N.  W.  829. 

8.  Colbeth  v.  Colbeth  (Wis.)  93  N.  W.  829. 

9.  Meade  County  Bank  v.  Bailey,  137  Cal. 
447,  70  Pac.  297. 

10.  The  statute  requires  a  filing  of  secur- 
ity before  commencement  of  the  suit — Car- 
rier v.  Missouri  Pac.  Ry.  Co.  (Mo.)  74  S.  W. 
1002. 


11.  Therefore  parol  evidence  is  admissible 
to  show  that  it  was  not  in  fact  approved — 
Little  V.  State  (Ala.)  34  So.  620. 

13.  Leave  to  sue  in  forma  pauperis  will 
not  be  granted  where  the  action  is  prosecut- 
ed under  a  valid  contract  for  a  contingent 
fee — Fell  v.  Wabash  R.  Co.,  119  Fed.  490. 
Security  may  be  required  from  one  suing  in 
forma  pauperis  on  his  subsequent  removal 
from  the  state  (Shan.  Code,  §  4928.  Am'd  Oct. 
1901,  c.  126) — Southern  Ry.  Co.  v.  Thompson 
(Tenn.)  71  S.  W.  820.  That  the  guardian  ad 
litem,  not  the  parent  of  the  infant  plaintiff, 
is  responsible  is  not  ground  for  refusing 
leave — Muller  v.  Bammann,  77  App.  Div.  (N. 
Y.)  212.  Otherwise  if  he  is  the  parent — 
Sumkow  V.  Sheinker,  84  App.  Div.  (N.  Y.) 
463.  Contra.  Gallagher  v.  Geneva.  W.,  S.  F. 
&  C.  L.  Traction  Co.,  39  Misc.  (N.  Y.)  637. 
.\  false  showing  of  poverty  may  result  in  a 
dismissal  if  properly  brought  to  the  court — 
Woods  V.  Bailey,  122  Fed.  967. 

13.  Alexander  v.  Morris  (Tenn.)  71  S.  W. 
751.  The  required  affidavit  must  be  filed  In 
the  lower  court  before  the  record  is  trans- 
mitted— Smith   v.   State,   117  Ga.    16. 

14.  Carrier  v.  Missouri  Pac.  Ry.  Co.  (Mo.) 
74  S.  W.  1002. 

15.  Code  Civ.  Pro.  §  460 — Sumkow  v. 
Sheinker.   84  App.  Div.   (N.  Y.)    463. 

16.  Spencer  v.  Mungus  (Mont.)  72  Pac. 
663;  Decker  &  St.  Louis  &  S.  Ry.  Co.,  92  Mo. 
App.  50.  Trespass  on  realty.  Finding  of 
iury  not  guilty  and  on  issue  of  title  in  plain- 
tiff's favor:  plaintiff  held  not  entitled  to 
costs — Hill  v.  McMahon,  81  App.  Div.  (N.  Y.) 
324.  An  administrator  who  is  unsuccessful 
in  a  personal  action  against  the  estate,  is 
within  the  rule — Holburn  v.  Pfanmiller's 
Adm'r.  24  Ky.  L.  R.  1613,  71  S.  W.  940. 
Where  the  claim  for  damages  under  the 
civil  damage  act  brought  the  action  within 
the  jurisdiction  of  a  court  of  record  on  re- 
covery plaintiff  is  entitled  to  costs — Purvis 
V.  Segar  (Mich.)  93  N.  W.  261.  Applied  to 
drainage  proceedings — In  re  Bradley.  117 
Iowa,  472.  Applied  to  proceedings  to  estab- 
lish highway — Wilhite  v.  Wolfe,  90  Mo.  App. 
18.  Applied  to  an  action  to  recover  a  re- 
ward offered,  several  claimants  intervening 
and  the  reward  being  deposited  in  court — 
Kinn  v.  First  Nat.  Bank  (Wis.)  95  N.  W. 
969.     Applied    to    a  proceeding   by    a   person 


810 


COSTS. 


§  4B 


fendant  is  the  prevailing  party  on  counts  dismissed  or  abandoned,*'  and  the  court 
may  award  costs  against  a  successful  plaintiff  where  he  unnecessarily  multiplied 
the  actions,"  or  they  may  be  allowed  defendant's  attorney  on  settlement  of  the 
action  between  the  parties.^^"  Costs  cannot  be  allowed  against  the  United  States 
as  a  party,-^  and  in  actions  relating  to  official  duties  they  should  not  be  charged 
against  the  officer  where  it  is  not  shown  that  he  acted  with  gross  negligence,  in  bad 
faith,  or  with  malice.-^ 

(§4)  B.  In  interlocutory  or  special  proceedings,  as  on  motions^'  relating  to 
the  amendment  of  pleadings,-*  or  to  strike  the  cause  from  the  short-cause  calendar, 
costs  are  discretionary.-'  Generally  they  will  be  charged  against  the  party  whose 
fault  occasioned  the  motion.^'  In  special  proceedings  costs  are  generally  statu- 
tory.^^ 

(§4)  C.  Several  co-parties. — Each  defendant  who  answered  separately  is  en- 
titled to  the  statutory  costs  on  judgment  going  against  plaintiff,''*  and  on  a  joint 
judgment  against  several  defendants,  the  costs  should  be  divided,-^  but  a  defendant 
should  not  be  charged  with  the  costs  of  parties  unnecessarily  made  defendant.'''' 

(§4)  D.  Parties  in  special  capacitij  or  qualified  interest. — Whether  an  execu- 
tor shall  be  personally  charged  with  costs  rests  within  the  court's  discretion,^*  and  it 
is  proper  to  so  charge  him  if  his  misconduct  occasioned  the  action,^^  as  where  he 
unmeritoriously  contests  a  claim  against  the  estate,^^  or  where  he  made  his  ac- 


adjudged  a  lunatic  to  be  discharged  from  the 
committee  allowing  the  latter  costs  on  ad- 
verse decision — In  re  Larner,  75  App.  Div. 
(N.  Y.)   509. 

Applied  to  proceeding  by  a  remonstrant 
wherein  he  obtained  a  revocation  of  a  liquor 
license — Bachman  v.  Inhabitants  of  Phillips- 
burg,  68  N.  J.  Law,  552. 

17.  Where  executors  abandoned  petition 
for  probate  and  filed  a  subsequent  petition, 
contestants  on  the  first  proceedings  and  not 
parties  to  the  second  cannot  be  charged  with 
costs  on  the  admission  of  the  will  to  pro- 
bate— Woodall  V.  McLendon   (Ala.)   34  So.  406. 

18.  Edwards  v.  Missouri,  K.  &  T.  Ry.  Co., 
97  Mo.  App.   103. 

19.  Kreiger  v.  Gosnell,  24  Ky.  L.  R.  1095, 
70  S.   W.   683. 

20.  Plaintiff's  attorney  refused  to  discon- 
tinue and  defendants'  attorney  being  com- 
pelled to  answer  and  place  cause  on  calen- 
dar— Himberg  v.  Rogers,  40  Misc.  (N.  Y.) 
190.  Costs  belong  to  the  attorney — Adams  v. 
Niagara  Cycle  Fittings  Co.,  108  N.  Y.  St.  Rep. 
485. 

21.  United  States  v.  Warren  (Okl.)  71  Pac. 
685. 

22.  O'Connor  v.  Walsh,  83  App.  Div.  (N. 
Y.)  179. 

23.  It  is  error  to  charge  opponent  on  an 
appeal  to  the  favor  of  the  court  as  where 
a  city  asked  to  have  a  judgment  in  condem- 
nation vacated  because  prematurely  entered 
— Fargo  V.  Keeney,  11  N.  D.  484.  Amount  as 
condition  of  opening  default  judgment — 
Randall  v.  Shields,  80  App.  Div.  (N.  Y.)  625. 
On  denial  of  a  motion  for  an  injunction  $10 
costs  only  can  be  allowed — Cotusa  Parrot 
Mln.  Co.  V.  Barnard  (Mont.)   72  Pac.  45. 

24.  All  costs  and  disbursements  should  be 
allowed  where  the  original  complaint  did  not 
state  •  cause  of  action — Lindblad  v.  Lynde, 
81  App.  Div.  (N.  Y.)  603.  Allowance  on 
amendment  of  complaint  held  reasonable — 
Perry  t.  Levenson,  82  App.  Div.  (N.  Y.)  94. 


25.  Costs  to  defendant  are  discretionary 
■>vhere  the  cause  has  proceeded  less  than  one 
hour   before    being   stricken    from    the    short 

•ause  calendar   (Hurds'   Rev.   St.  1899,  c.   110, 
S  97) — Jeffery  v.  Babcock,  98  111.  App.  17. 

26.  Coffey  v.  Gamble  (Iowa)  94  N.  W.  936. 

27.  Compensation  of  assessors  to  assess 
damages  in  eminent  domain  cannot  be  taxed 
as  costs,  nor  can  fees  of  stenographer — Bos- 
ton Belting  Co.  v.  Boston  (Mass.)  67  N.  E. 
428.  In  taxing  costs  of  commissioners  in 
condemnation  proceedings  commissioners' 
clerk  fees  should  be  allowed  only  on  proof 
of  the  nature  and  value  of  the  services — In 
re  Collis,  78  App.  Div.   (N.  Y.)  495. 

28.  Koyukuk  Min.  Co.  v.  Van  De  Vanter, 
30  Wash.  385,  70  Pac.  966.  An  Intervener 
after  judgment  against  plaintiff  at  his  cost, 
is  entitled  to  recover  his  costs — Johnson  v. 
New  Orleans,  109  La.  696. 

29.  Albers  V.  Dillavou  (Neb.)  93  N.  W. 
937. 

30.  Baughn  v.  Allen  (Tex.  Civ.  App.)  73 
S.  W.  1063. 

31.  Costs  of  accounting — In  re  Holmes, 
79  App.  Div.    (N.   Y.)    264. 

32.  Steinway  v.  Von  Bernuth,  82  App. 
Div.  (N.  Y.)  596;  Roberts  v.  Lamberton 
(Wis.)    94  N.  W.  650. 

33.  The  extra  allowance  under  Code  Civ. 
Pro.  §  3253  may  be  given  though  costs  had 
been  granted  against  the  executor  for  un- 
reasonably resisting  a  claim  under  §  1836 — 
Weeks  v.  Coe,  76  App.  Div.  (N.  Y.)  310. 
Costs  under  Code  Civ.  Pro.  §  1836  should 
not  be  allowed  against  an  executor  w^here 
the  claim  w^as  materially  reduced  on  the 
trial,  though  with  claimant's  consent — 
Healy  v.  Malcolm,  75  App.  Div.  (N.  Y.)  422. 
Where  no  material  benefit  resulted  from  the 
contest  of  the  account  the  contestants  will 
not  be  allowed  costs — In  re  Eadle,  39  Misc. 
(N.  Y.)   117. 


i5  <>A 


KIND  OF  LITIGATION, 


811 


counts  so  intricate  that  an  audit  was  necessary.'*  If  the  costs  are  not  in  the 
terms  of  the  judgment  charged  against  the  estate  the  executor  is  personally  lia- 
ble.^o 

The  person  for  whose  benefit  an  action  is  brought  may  be  charged  with  all 
the  costs. '^ 

(§  4)  E.  \Vaiver  of  right  and  effect  of  tender  or  offer  of  judgment. — The  suc- 
cessful party  may  waive  his  right  to  judgment  and  execution  for  costs.'^ 

On  recovery  of  a  less  favorable  judgment  than  offered  by  defendant/*  or  for 
less  than  the  amount  tendered/^  or  if  only  for  the  amount  of  the  offer  or  tender, 
the  defendant  is  entitled  to  costs.'*** 

§  5.  Right  dependent  on  minimum  amount  of  demand  or  recovery. — In  some 
jurisdictions  the  right  of  a  successful  plaintiff  to  recover  costs  depends  on  the 
amount  of  recovery,*^  but  the  statute  has  been  held  not  to  apply  to  a  defendant 
who  recovers  on  a  coimterclaim  though  in  a  sum  less  than  the  statutory  limit,*^ 
or  to  a  suit  in  equity.*' 

§  6.  Right  affected  by  character  of  litigation  or  proceeding.  A.  In  equity 
and  equitable  code  actions. — While  in  equity  costs  are  discretionary,**  the  rule  at 
law  that  the  successful  party  is  entitled  to  costs  has  been  generally  followed,** 


34.  Executor  held  not  liable  for  cost  of 
audit  of  his  accounts — Young's  Estate,  204 
Pa.  32. 

33.  McCarthy  v.  Speed  (S.  D.)  94  N.  W. 
411. 

3G.  As  the  person  who  requested  the  re- 
ceiver to  sue.  Code  Civ.  Pro.  §  3247 — Droege 
V.  Baxter.  77  App.  Div.   (N.  Y.)  78. 

37.  Decker  v.  St.  Louis  &  S.  Ry.  Co.,  92 
Mo.  App.  50.  A  stipulation  to  submit  the  con- 
troversy, the  judgment  to  be  without  costs 
should  be  followed  by  the  court — Real  Es- 
tate Corp.  v.  Harper,  174  N.  Y.  123. 

38.  Mills'  Ann.  Code,  Colo.  §  281 — Florence 
Oil  &  Ref.  Co.  V.  Farrar  (C.  C.  A.)  119  Fed. 
150. 

39.  Saunders  v.  King  (Iowa)  93  N.  W.  272. 
Acceptance  of  tender  held  not  to  include 
costs — McEldon  v.  Patton  (Neb.)  93  N.  W. 
938. 

40.  Maxwell  v.  Missouri,  K.  &  T.  Ry.  Co., 
91  Mo.  App.  582;  Edward  Hines  Lumber  Co. 
V.  Chamberlain   (C.  C.  A.)    118  Fed.  716. 

41.  Action  for  rent  or  use  and  occupation; 
plaintiff  recovered  less  than  fifty  dollars;  de- 
fendant entitled  to  costs  of  course — United 
States  Mortg.  Co.  v.  Willis,  41  Or.  481,  69  Pac. 
266.  On  recovery  in  the  supreme  court  of 
less  than  $200  for  unlawful  distress  the 
plaintiff  is  not  entitled  to  costs — Brown  v. 
Howell,  68  N.  J.  Law,  292.  On  recovery  in 
foreclosure  of  a  mechanic's  lien  in  the  su- 
preme court  for  a  claim  less  than  fifty  dol- 
lars and  reduced  to  but  $2.65  the  plaintiff  is 
not  entitled  to  costs — Majory  v.  Schubert,  82 
.\pp.  Div.  (N.  Y.)  633.  In  tort  actions  the 
costs  should  not  exceed  the  recovery — Gut- 
tery  v.  Boshell,  132  Ala.  596.  In  the  city 
court  of  Baxley  it  is  error  to  enter  judgment 
for  defendant  foi"  the  difference  between  the 
justice's  court  costs  and  the  usual  city  court 
costs.  Act  1897,  p.  420,  §  2,  allowing  only 
justice's  court  costs  on  recovery  of  $100  or 
less — Graham  v.  City  of  Baxley,  117  Ga.  42. 
On  recovery  of  less  than  $100  in  a  municipal 
court  only  $10  costs  can  be  allowed.  Laws 
1902,  p.  1585,  c.  580 — Brendon  v.  Traders'  & 
T.  Ace.  Co.,  84  App.  Div.  (N.  Y.)  530. 

42.  Spencer  v.  Mungus  (Mont.)  72  Pac. 
«fi3. 


43.  On  foreclosure  of  a  mechanic's  lien 
and  for  equitable  relief  the  plaintiff  is  en- 
titled to  costs,  though  he  recovers  less  than 
$50 — Faville  v.  Hadcock,  39  Misc.   (N.  Y.)  397. 

44.  Jennings  v.  Parr,  66  S.  C.  385.  Applied 
to  suit  for  dissolution  of  partnership — Hart 
V.  Hart  (Wis.)  94  N.  W.  890.  Applied  in  ac- 
tion to  enforce  contract  lien — Roussel  v. 
Mathews,  171  N.  Y.  634.  Applied  in  foreclo- 
sure of  mechanic's  lien  and  costs  held  prop- 
erly allowed — Harvey  v.  Brewer,  82  App. 
Div.  (N.  Y.)  5S9.  The  chancery  rule  govern- 
ing costs  does  not  apply  to  proceedings  to 
foreclose  mechanics'  liens — Kalina  v.  Stein- 
meyer,  103  111.  App.  502.  Discretion  held 
properly  exercised  in  dismissing  bill  to  fore- 
close mortgage— Williams  v.  Williams  (Wis. ) 
94  N.  W.  25.  Held  error  to  award  plaintiff 
costs  on  mandamus  requiring  approval  of 
official  bond— State  v.  Holm  (Neb.)  92  N.  W. 
1006.  In  proceedings  to  recover  damages  re- 
sulting from  change  of  grade  of  highway, 
costs  before  appointment  of  commissioners 
are  discretionary  and  under  Code  Civ.  Pro. 
§  3240 — Bley  v.  Village  of.  Hamburg,  84  App. 
Div.  (N.  Y.)  23.  Simply  because  the  court 
sustained  but  one  of  the  defenses  the  defend- 
ant should  not  be  charged  with  costs — Oliver 
V.  Wilhite,  201  111.  552.  Where  there  was 
reasonable  cause  to  contest  the  will  the 
costs  will  be  charged  against  the  estate;  but 
where  the  contestant  had  no  reasonable 
cause  to  appeal  the  costs  of  the  appeal  will 
not  be  so  charged — In  re  Claus'  Will  (N.  J. 
Prerog.)   54  Atl.  824. 

4.>.  Trespass  to  try  title.  Issue  only  as  to 
boundary,  on  which  defendant  was  success- 
ful and  entitled  to  costs  —  Rountree  v. 
Haynes  (Tex.  Civ.  App.)  73  S.  W.  435.  Action 
held  equitable  and  plaintiff  entitled  to  costs 
though  recovery  was  less  than  $300— Bem- 
merly  v.  Smith,  136  Cal.  5,  68  Pac.  97.  Plain- 
tiff in  injunction  may  be  required  to  pay 
costs  of  mandamus  directing  dissolution  of 
the  injunction — Johnson  v.  New  Orleans,  109 
La.  696.  The  partner  whose  acts  in  refusing 
to  account  caused  the  other  partner  to  sue 
for  dissolution,  which  was  granted,  will  be 
charged  with  the  costs — Richard  v.  Mouton, 
109  La.   465.    Applied  to  a  bill  to  interplead 


812 


COSTS. 


§  6B 


though  where  both  parties  are  successful  the  costs  may  be  divided,*'  apportioned/^ 
or  each  party  may  be  compelled  to  pay  his  own  costs.*^  Costs  follow  the  defendant 
on  dismissal  of  the  bill  on  demurrer  sustained/^  or  because  complainant  failed  to 
do  equity,^"  but  a  failure  to  offer  to  do  equity  will  not  affect  complainant's  right  to 
costs  where  the  offer  would  have  been  unavailing.^^  If  complainant  is  successful 
the  intervenor  may  be  charged  with  the  costs  after  the  inter venti on. '^  As  between 
co-defendants,  the  complainant  will  be  charged  with  the  costs  of  those  dismissed 
from  the  bill,'^  and  a  defendant  on  disclaimer  is  not  entitled  to  costs  against  the 
other  defaulting  defendants."**  Costs  should  be  allowed  only  on  the  final  deter- 
mination of  the  suit."" 

(§6)  B.  On  appeal,  error,  etc. — Ordinarily  the  successful  party  on  appeal  is 
entitled  to  the  costs,^°  though  the  allowance  is  discretionary,^^  and  where  both  par- 
ties are  successful  each  may  be  required  to  pay  his  own  costs.^*  If  the  appeal 
could  have  been  avoided,  the  appellant  though  successful  will  be  charged  with  the 
costs,^®  or  if  he  appealed  merely  for  the  purpose  of  delay.®"  Costs  will  be  charged 
to  one  whose  laches  caused  a  dismissal  f''^  they  will  be  charged  against  appellant 
where  the  dismissal  was  because  of  a  defective  record,"^  or  where  he  fails  to  pro- 


claimants  to  a  fund,  the  whole  costs  being 
charged  against  the  claimant  whose  Invalid 
claim  caused  the  proceeding  to  be  instituted 
— Sovereign  Camp  "Woodmen  v.  "Wood  (Mo. 
App.)  75  S.  "W.  377.  "Where  in  interpleader 
the  issue  as  to  the  amount  due  from  com- 
plainant went  against  the  complainant  he 
will  not  be  allowed  costs  out  of  the  fund — 
English  v.  "U^arren   (X.   J.  Ch.)   54  Atl.  S60. 

46.  Mo.  Rev.  St.  1S99.  §§  1549.  1550— Schu- 
macher v.  Mehlberg,  96  Mo.  App.  598.  As 
where  the  defendant  was  successful  in  re- 
ducing the  amount  of  recovery — Fielder  v. 
Beekman  (N.  J.  Ch.)  54  Atl.  156;  Stern- 
bach  V.  Friedman,  75  App.  Div.  (N.  T.)  418. 
Both  partners  should  be  charged  with  the 
cost  of  taking  account  when  both  contribut- 
ed to  delay  after  dissolution — Dyer  v.  Bal- 
linger,  24  Ky.  L.  R.  1918,  72  S.  "W.  738. 

47.  Fees  of  master — Hall  v.  Bridgeport 
Trust  Co.,  122  Fed.  163. 

48.  Jones  v.  Garrigues.  75  App.  DIv.  (N. 
Y.)   539;  Barger  v.  Gery,  64  N.  J.  Eq.  263. 

49.  Chan.  Act.  §  24;  Rev.  1902 — Brown  v. 
Tallman   (N.  J.  Ch.)   54  Atl.  457. 

50.  Insufficient  tender  before  suing  to 
avoid  deeds — Glos  v.  "Woodard.  202  111.  480. 

51.  Tender  of  consideration  of  contract 
before  suit  for  rescission — Hansen  v.  Allen 
("Wis.)   93  N.  "W.  805. 

52.  So  held  in  quo  warranto  to  try  title  to 
office — People  v.  Campbell,  138  Cal.  11,  70 
Pac.  918. 

53.  Kurd's  St.  1899.  c.  33,  §  18 — McDavid  v. 
McLean,   202  111.  354. 

54.  Halpin  v.  Donovan  (Mich.)  92  N.  "W. 
782. 

5."».  They  should  not  be  given  on  interloc- 
utory judgments  directing  an  accounting — 
McWhirter  v.  Bowen,  82  App.  Div.  (N.  Y.) 
144. 

58.  Coffey  v.  Gamble  (Iowa>  94  N.  "W.  936; 
State  V.  Miller,  109  La.  240.  The  appellant  is 
the  successful  party  if  he  sustains  his  appeal 
on  any  of  the  grounds — McQueeney  v.  Nor- 
cross  Bros.,  75  Conn.  381.  Or  where  he  pro- 
cured a  modification  of  the  judgment  against 
him — Fanning  v.  Supreme  Council,  84  App. 
Div.  (N.  Y.)  205;  Mclnnis  v.  Greaves,  80 
Miss.  632.    By  the  filing  by  appellee  of  a  re- 


mittitur— First  Nat.  Bank  v.  Calkins  (S.  D.) 
93  N,  "W.  646;  "White  v.  Glover  (Tex.  Civ. 
App.)  71  S.  'W.  319.  But  merely  because  ap- 
pellant obtained  a  modification  of  the  judg- 
ment will  not  entitle  him  to  the  costs  of  the 
trial  court — Vogt  v.  Hecker  ("Wis.)  95  N.  W. 
90.  If  appellant  obtains  a  less  favorable 
judgment  he  will  be  charged  with  the  costs 
of  the  appeal — Barrall  v.  Quick,  24  Ky.  L.  R. 
2393.  74  S.  "W.  214.  "V\'here  the  plaintiiT  ap- 
pealed from  the  judgment  against  him  and 
the  appellate  court  reversed  the  judgment 
sua  sponte  because  of  want  of  jurisdiction 
in  the  lower  court  the  defendant  is  the  pre- 
vailing party — Freer  v.  Davis,  52  "W.  "Va.  1. 
Costs  of  appeal  charged  against  fund  in  re- 
ceivers' hands  and  of  the  court  below  to 
abide  the  event — Alfred  Richards  Brick  Co. 
V.  Rothwell,  19  App.  D.  C.   178. 

57.  On  vacation  of  order  of  contempt 
plaintiffs  in  certiorari  were  charged  with  the 
costs,  it  appearing  that  tliey  were  commit- 
ting an  illegal  act  and  the  order  was  vacated 
because  the  original  proceeding  was  not  the 
proper  remedy — Coffey  v.  Gamble  (Iowa)  94 
N.  "^^  936; 

58.  Clerks'  Inv.  Co.  v.  Sydnor,  19  App.  D. 
C.  89.  So  held  in  admiralty — Donnell  v. 
Amoskeag  Mfg.  Co.  (C.  C.  A.)  118  Fed.  10. 
W'here  a  decree  had  been  reversed  v.'ith  costs 
and  execution  therefor  returned  unsatisfied 
appellant  may  be  taxed  with  costs  incurred 
nt  his  instance — "Wooten  v.  Hecker,  136  Ala. 
2.10. 

.■;5).  As  by  filing  a  demurrer  to  the  peti- 
tion for  foreclosure  he  could  have  avoided 
the  personal  judgment  against  him  (Bush  v. 
Louisville  Trust  Co.,  24  Ky.  L.  R.  2182,  23  S. 
S.  775);  or  where  the  only  result  of  the  ap- 
peal was  to  decrease  the  amount  of  the 
judgment,  which  was  too  large,  owing  to  a 
clerical  error — Poersclike  v.  Horowitz,  84 
App.  Div.  (N.  Y.)  443.  If  the  question  on 
which  appellant  Avas  successful  should  first 
have  been  raised  in  the  lower  court,  he  will 
be  cliprged  witli  the  costs — Herry  v.  Benoit 
(Tex.  Civ.  App.)  70  S.  ^V.   359. 

60.  Gammage  v.  Smith.   116  Ga.   779. 

61.  Rush  V.  Connor   (Fla.)   32  So.  796. 

C2.     Defect  of  parties  in  printed  record  on 


§  7 


AMOUNT  AND  ITEMS. 


813 


cure  a  mandate  to  the  lower  court  after  procuring  a  reversal  of  the  judgment/^ 
or  if  he  dismisses  on  his  own  motion.^*  If  the  plaintiff  dismisses  the  action  after 
favorable  judgment  and  after  proceedings  for  review  have  been  instituted,  the 
costs  of  the  latter  will  be  charged  against  him.®^  No  costs  being  allowed  by  the 
intermediate  appellate  court,  a  reversal  by  the  final  court  with  costs  will  include 
the  costs  of  the  appeal  to  the  lower  court.**  The  rules  as  to  taxation  of  costs  on 
appeal  will  be  applied  on  certiorari.®^ 

(§6)  C.  Justices'  courts  and  municipal  courts. — Costs  in  an  action  brought  in 
the  municipal  court  of  I^ew  York  city  will  be  allowed  as  though  commenced  in  the 
court  to  which  tlie  action  is  removed.®* 

§  7.  Amount  and  items;  after  trial. — The  lex  fori  governs  as  to  the  amount 
of  the  costs,"^  and  only  such  costs  as  are  allowed  by  statute  can  be  taxed.'^"     Costs 


certiorari,  the  orig-inal  record  being  proper — 
Fitch  V.  Board  of  Auditors  (Mich.)  94  N.  W. 
952. 

63.  Laws  1901,  p.  122,  c.  54 — Watson  v. 
Boswell  (Tex.  Civ.  App.)  73  S.  W.  985;  Wat- 
.^on  V.  Mirike   (Tex.  Civ.  App.)    73  S.  W.  986. 

64.  Post  V.  Spolcane.  28  Wash.  701,  69  Pac. 
371,  1104.  >« 

6.5.  So  held  on  dismissal  after  certiorari 
brought — State  v.  Third  Judicial  Dist.  Ct. 
.Nev.)    71  Pac.   664. 

60.  Where  a  judgment  was  affirmed  on 
respondent  filing  a  remittitur  and  without 
costs  to  either  party  in  the  appellate  division 
■I  reversal  by  the  court  of  appeals  with  costs 
to  abide  the  event  will  include  costs  of  ap- 
peal to  appellate  division;  plaintiff  being 
'successful  on  new  trial — Smith  v.  Lehigh 
Valley  R.  Co..  116  N.  Y.  St.  Rep.  674. 

67.  Coffey  v.  Gamble  (Iowa)   94  N.  W.  93. 

68.  Kochman  v.  Hefter.  115  N.  Y.  St.  Rep. 
i'.91.    Cf.  article  "Justices  of  the  Peace." 

60.  Items  of  cost  accruing  without  the 
state  w^ill  be  allowed  under  the  fee  bill  pro- 
vided by  the  laws  of  this  state — Dignan  v. 
Xelson  (Utah)   72  Pac.  936. 

70.  Douglas  County  v.  Moores  (Neb.)  92 
N.  W.  199.  Laws  1893,  p.  421,  §  2,  subds.  3,  4, 
;4overn  the  fees  to  be  collected  by  clerks  in 
lury  cases — Nelson  v.  Nelson  Bennett  Co. 
rWash.)   71  Pac.  749. 

Preparation  of  exhibits.  Without  order  or 
evidence  that  the  originals  could  have  been 
used  cost  for  printing  exhibits  cannot  be 
taxed — Edison  v.  American  Mutoscope  Co., 
117  Fed.  192.  Expenses  for  models,  surveys 
Mnd  for  development  of  work  done  in  prepa- 
ration for  trial  cannot  be  taxed — Montana 
Ore  Purchasing  Co.  v.  Boston  &  M.  Consol. 
Copper  &  Silver  Min.  Co.,  27  Mont.  288,  70 
Pac.  1114. 

Stenosrapher  and  clerk  fees.  Fees  of 
'Stenographer  on  hearing  before  a  master  in 
chancery  cannot  be  allowed — Smyth  v.  Stod- 
dard. 203  111.  424.  Fees  paid  a  private  sten- 
ographer acting  In  the  place  of  the  official 
stenographer  by  consent  cannot  be  taxed — 
Montana  Ore  Purchasing  Co.  v.  Boston  &  M. 
Consol.  Copper  &  Silver  Min.  Co.,  27  Mont. 
288,   70  Pac.  1114. 

Docket  and  trial  fees.  Order  remanding 
cause  to  state  court  is  a  final  judgment  on 
which  $10  docket  fees  may  be  allowed  plain- 
tiffs attorney  (U.  S.  Rev.  St.  §  824) — Riser  v. 
Southern  Ry.  Co..  116  Fed.  1014.  A  hearing 
had  after  service  of  an  infant's  answer  is  a 
trial  for  the  purpose  of  taxation  of  trial  fees 
B,s    costs,     though     counsel    for    infants     did 


not  cross-examine  plaintiff's  witnesses — 
Wandell  v.  Hirschfeld.  40  Misc.  (N.  Y.)  527. 
Costs  after  notice  of  trial  may  be  taxed  on 
sustaining  a  demurrer  to  the  answer  w^ith 
costs — Veriscope  Co.  v.  Brady,  115  N.  Y.  St. 
Rep.  498. 

Mileajre  and  fees  of  officers  and  witnesses. 
There  must  be  proof  of  the  distance  traveled 
before  the  sheriff  can  be  allowed  mileage — 
TIakonson  v.  Metropolitan  St.  Ry.  Co..  40  Misc. 
(N.  Y.)  182.  So.  also,  as  to  witnesses — Duree 
v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (Iowa)  92  N. 
W.  890.  Where  the  witness  was  not  sworn 
or  summoned  by  ordinary  subpoena,  living 
beyond  the  reach  thereof,  it  must  appear 
that  an  oral  examination  was  important  and 
desirable.  That  the  objection  to  the  bill  was 
on  that  ground  ■  will  not  admit  evidence 
thereof — Luckey  v.  Lincoln  County,  42  Or. 
331,  70  Pac.  509.  The  bill  should  show  the 
name,  residence  of,  place  of  subpoena,  miles 
actually  traveled  and  days  attended  by  wit- 
nesses— Garr  v.  Cranney,  25  Utah,  193,  70 
Pac.  853.  Bill  held  insufficient  to  show  days 
attendance  or  miles  traveled  by  witnesses — 
Garr  v.  Cranney.  25  Utah,  193,  70  Pac.  853. 
Mileage  for  witnesses  appearing  and  testify- 
ing will  be  allowed  whether  they  were  le- 
gally subpoenaed  or  not  —  McGlauflin  v. 
Wormser  (Mont.)  72  Pac.  428.  Witness  fees 
can  be  taxed  only  for  such  witnesses  as  were 
summoned  at  the  request  of  one  of  the  par- 
ties— Manuel  v.  State  (Tex.  Cr.  App.)  74  S. 
W.  30.  Slieriffs'  costs  of  sending  messages 
to  witnesses  to  attend  cannot  be  taxed — 
Egan  V.  Finney,  42  Or.  599,  72  Pac.  133. 

Attorney's  fees  and  extra  allowances.  Al- 
lowances for  counsel  fees  are  not  costs  (Acts 
1898,  c.  123,  §  315) — Singer  v.  Fidelity  &  De- 
posit Co.,  96  Md.  221;  Kaufmann  v.  Kirker,  22 
Pa.  Super.  Ct.  201;  Rowland  v.  Maddock 
(Mass.)  67  N.  E.  347;  Wormely  v.  Mason  City 
&  Ft.  D.  R.  Co.  (Iowa)  95  N.  W.  ?03.  Colo- 
rado. Attorney's  fees  cannot  be  allow^ed  on 
foreclosure  of  mechanics'  liens — Sickman  v. 
Wollett  (Colo.)  71  Pac.  1107.  Georgia.  At- 
torney's fees  cannot  be  allowed  merely  be- 
cause defendants  had  refused  to  pay  without 
suit  (Civ.  Code  1895,  §  3796) — Pferdmenges 
Preyer  &  Co.  v.  Butler  (Ga.)  43  S.  E.  695. 
Illinois.  Attorney's  fees  cannot  be  taxed  as 
costs  where  no  evidence  of  their  value  had 
been  given — Mehan  v.  Mehan,  203  111.  180 
lo-wa.  The  corporation  in  condemnation  pro 
ceedings  should  not  be  charged  with  attor 
ney's  fees  on  appeal  where  if  procured  a  re 
duction  in  the  amount  of  the  award  (Code 
§  2007) — Wormely  v.  Mason  City  &  Ft.  D.  R 


814 


COSTS. 


§7 


allowable  by  the  laws  of  the  state  wherein  the  action  was  brought  are  recoverable 
in  the  federal  court  to  which  the  action  was  removed.^* 

On  appeal. — The  expense  for  printing  all  assignments  of  error  on  appeal  may 
be  taxed  though  appellant  was  not  successful  on  all  of  themJ^  If  the  abstract  or 
brief  is  defective/^  or  if  unnecessar}'  parts  of  the  record  are  sent  up,  the  cost  of 
printing  will  not  be  allowed/*  though  in  the  latter  case  the  clerk's  fees  for  making 
up  the  transcript  will  be  taxed  against  the  party  requesting  the  same/^  but  the 
clerk  will  be  allowed  only  for  that  part  of  the  record  which  the  parties  stipulated 
should  be  sent  up/®  and  he  will  be  charged  with  the  expense  of  a  proceeding  to 
compel  him  to  deliver  transcript  where  he  delivers  it  after  proceeding  brought  but 
before  action  thereon  is  taken.''^  The  cost  of  procuring  an  appeal  and  stay  bond 
cannot  be  taxed.''*  If  the  appeal  was  frivolous,  double  costs/®  or  a  per  centum 
allowance  on  the  recovery,  will  be  given.^" 

In  criminal  proceedings,  the  costs  chargeable  against  a  person  after  convic- 
tion,*^ or  to  the  county  for  services  of  counsel  assigned  by  the  court  to  defend,  will 


Co.  (Iowa)  95  N.  W.  203.  It  Is  only  where  the 
injunction  was  dissolved  that  attorney's  fees 
may  be  taxed.  That  the  action  went  against 
plaintiff  and  permanent  injunction  was  re- 
fused, there  having  been  no  motion  to  dis- 
solve the  preliminary  injunction,  attorney's 
fees  cannot  be  taxed — Hocking  Valley  Coal 
Co.  V.  Climie  (Iowa)  92  N.  W.  77.  3!issouri. 
Receiver's  attorney  fees  are  not  costs — Pul- 
lis  V.  Pullis  Bros.  Iron  Co.,  90  Mo.  App.  244. 
'Sew  Jersey.  Under  chancery  act  1902  (P.  L. 
p.  504.  §  91)  In  partition  attorney's  fees  may 
be  allowed — Keeney  v.  Henning  (N.  J.  Ch.) 
55  Atl.  88.  Practice  stated  to  obtain  allow- 
ance for  attorney's  fees  under  Chan.  Act  1902 
(P.  L.  p.  540,  §  91) — McMullen  v.  Doughty  (N. 
J.  Ch.)  55  Atl.  115.  New  York.  In  proceed- 
ings like  mandamus  to  compel  reinstate- 
ment of  expelled  members  of  an  association, 
attorney's  fees  can  be  recovered  only  on 
proof  of  malice — Lurman  v.  Jarvie  (N.  Y.) 
82  App.  Div.  37.  The  right  to  an  extra  allow- 
ance is  limited  to  actions  and  does  not  In- 
clude special  proceedings.  As  summary  pro- 
ceedings by  landlord  against  tenant — Lauria 
V.  Capobianco,  39  Misc.  (N.  Y.)  441.  The  ex- 
tra allowance  should  not  be  granted  in  an 
action  to  recover  for  injuries  resulting  from 
a  collision  at  a  railroad  crossing.  Such  an 
action  Is  not  "extraordinary"  within  the 
Code — Smith  v.  Lehigh  Valley  R.  Co.,  77  App. 
Div.  (N.  Y.)  47.  Where  the  issue  was  solely 
one  of  title  to  land  and  there  was  no  evi- 
dence as  to  its  value,  it  is  error  to  award  an 
extra  allowance  (Code  Civ.  Pro.  §  3253.  subd. 
2) — Deuterman  v.  Pollock,  172  N.  Y.  595.  At- 
torney's fees  can  be  allowed  a  party  only 
where  he  had  recovered  the  costs  of  the  ac- 
tion— Frost  V.  Reinach,  115  N.  Y.  St.  Rep. 
246.  Oklahoma.  A  school  teacher  is  not 
within  the  statute  allowing  attorney's  fees 
in  actions  for  personal  services  (Sess.  Laws 
1895.  p.  268.  c.  51,  §  1) — School  Dist.  No.  94  v. 
Gautler  (Okl.)  73  Pac.  954. 

New  trial.  After  disagreement  of  the  Jury 
and  recovery  on  the  second  trial  only  one 
item  after  notice  of  trial  can  be  taxed.  In  N. 
T.  City  Court — Hakonson  v.  Metropolitan  St. 
Ry.  Co.,  40  Misc.  (N.  Y.)  182.  Costs  of  new  trial 
should  not  be  allowed  on  an  order  restoring 
the  case  on  calendar  after  withdrawal  of  a 
juror  by  the  plaintiff.  The  second  trial  is  not 
a  new  trial  within  Code  Civ.  Pro.  §  3251 — 
Blocb  V.  Linsley,  40  Misc.  (N.  Y.)   184. 


71.  Attorney's  fees  on  dissolution  of  at- 
tacliment  allowed — Fidelity  &  Deposit  Co.  v. 
L.  Bucki  &  Son  Lumber  Co.,  189  U.  S.  135. 

73.  Curry  v.  Sandusky  Fish  Co.  (Minn.) 
93  N.  W.  896. 

73.  Brinkley  Car  Co.  v.  Cooper,  70  Ark. 
331.  If  respondent's  abstract  supplied  a  defi- 
ciency in  appellant's,  the  latter  is  charge- 
able only  with  the  cost  of  curing  the  defect 
— Berkshire    v.    Hoover,    92    Mo.    App.    349. 

74.  Greene  v.  Montana  Brewing  Co. 
(IMont.)  72  Pac.  751;  Liver  v.  Thielke,  115 
Wis.  389.  The  appellant  will  be  charged  with 
costs  of  bill  of  exceptions  containing  testi- 
mony in  extenso — Sup.  Ct.  Rule  33;  Gaynor 
V.  Louisville  &  N.  R.  Co.,  136  Ala.  244.  There 
being  reasonable  grounds  for  the  necessity 
of  printing  the  whole  evidence,  costs  will 
be  taxed  in  favor  of  the  prevailing  appellant 
to  the  full  extent  allowable  by  law — Mc- 
Queeney  v.   Norcross   Bros.,    75   Conn.    381. 

75.  Harris  v.  Davenport.  132  N.  C.  697. 
The  party  causing  a  needless  amended  ab- 
stract to  be  filed  will  be  taxed  with  the 
costs  thereof — Martin  v.  Martin  (Iowa)  94  N. 
W.  493.  The  cost  of  an  additional  abstract 
filed  too  late  will  be  charged  against  the 
party  filing  it — Ridgeway  v.  Jewell  (Iowa) 
95  N.  W.  410. 

76.  Lamb  Knit  Goods  Co.  v.  Lamb  Glove 
&  Mitten  Co.   (C.  C.  A.)   120  Fed.  257. 

77.  State  v.  Estorge  (La.)  34  So.  643. 

78.  The  cost  of  procuring  an  appeal  and 
stay  bond  cannot  be  taxed  as  a  disbursement 
— Edison  v.  American  Mutoscope  Co.,  117  Fed. 
192;  In  re  Hoyt,  119  Fed.  9S7. 

79.  Under  Mass.  Rev.  Laws.  c.  156,  §  13. 
the  appellant  is  chargeable  with  double  costs 
if  his  appeal  was  frivolous — Connell  v.  Morse. 
182  Mass.   439. 

SO.  Under  Missouri  Rev.  Stat.  1899,  S  867, 
in  case  of  a  frivolous  appeal  recovery  of  10 
per  cent,  damages  may  be  had — Mooneyham 
V.  Cella.  91  Mo.  App.  260.  So  also  in  Illinois 
— Potter  V.  Leviton.  199  111.  93.  In  the  Indian 
Territory  following  Arkansas,  damages  of  10 
per  cent,  will  be  allowed  on  affirming  a 
money  judgment  which  has  been  superseded 
— Missouri.  K.  &  T.  Ry.  Co.  v.  Truskett,  186 
U.  S.  480.   46  Law.  Ed.  1259. 

81.  Iowa.  The  county  may  recover  the 
costs  though  the  record  entry  of  judgment 
contained  no  reference  to  the  matter  of  costs 
— Hayes  v.  Clinton  County   (Iowa)   92  N.  W. 


§  9 


ENFORCEMENT. 


815 


be  treated  in  the  footnotes,  the  right  thereto  and  the  amounts  and  items  varying 
according  to  the  statute  under  which  they  are  allowed.^^ 

§  8.  Procedure  to  tax  costs. — The  right  to  costs  is  lost  if  the  bill  is  not  served 
within  the  statutory  time,®^  though  the  court  may  on  application  extend  the  time 
for  filing  and  service.** 

Wliile  the  right  to  a  retaxation  may  be  barred  by  laches,*'  or  by  payment  of 
the  judgment  and  costs,®^  it  may  be  had  after  the  term  of  judgment  or  appeal.®^ 
On  permitting  corroborative  affidavits  to  be  filed,  the  opposing  party  should  be 
given  leave  to  reply  thereto,*®  and  on  retaxation  by  the  court,  all  intendments  are 
in  favor  of  a  proper  taxation  by  the  clerk,*"  and  the  allowance  by  the  court  is  con- 
clusive.®" 

A  motion  for  the  allowance  of  attorneys'  fees  made  three  years  after  entry  of 
the  judgment  comes  too  late.®^ 

A  party  taxed  with  costs  on  appeal  can  only  object  to  the  aggregate  allowance 
and  not  to  the  manner  of  dividing  between  adverse  parties.®- 

§  9.  Enforcement  and  payment  of  cost  judgment. — A  judgment  for  the  costs 
must  be  entered  before  execution  for  their  collection  can  be  issued.®'  A  fee  bill 
is  the  proper  process  for  the  collection  of  witnesses'  and  officers'  costs.®* 

Costs  must  first  be  paid  from  the  funds  arising  from  a  sale  of  the  debtor's 
property.®^  If  money  be  deposited  as  security  for  appeal  costs  only,  the  reviewing 
court  cannot  order  its  application  to  payment  of  the  judgment  and  costs  below.®^ 
Accrued  costs  deposited  in  court  as  a  tender  should  be  offset  against  the  costs  al- 
lowed on  final  recover}'^  by  plaintiff.®^ 

Generally  nonpayment  of  costs  stays  further  proceedings  in  the  action,*'  though 
the  stay  may  be  waived.®* 


8C0.  Kansas.  The  clerk  In  taxing  costs  al- 
lowed against  a  county  in  a  criminal  prose- 
cution must  specify  the  services  for  which 
the  amount  is  due — Lockard  v.  Board  of 
Com'rs  (Kan.)  71  Pac.  856.  Missouri.  Jury 
cost^  in  criminal  proceedings  cannot  be  taxed 
against  defendant  when  he  pleads  guilty. 
Accrued  costs  of  preliminary  examination 
before  a  justice  of  the  peace  are  chargeable 
against  defendant  after  conviction  on  trial 
on  information  filed  in  the  circuit  court  on 
the  same  charge — State  v.  Williams,  92  Mo. 
App.  443.  AVasliington.  The  county  cannot 
be  charged  with  the  expense  of  printing  the 
brief  on  appeal  in  forma  pauperis  from  a 
conviction — State  v.  Superior  Ct.  (Wash.)  72 
Pac.  1027. 

83.  New  Yorl«.  Allowance  to  assigned 
counsel  in  capital  cases  can  be  made  only 
to  those  assigned  at  the  time  of  the  pleading 
to  the  indictment.  If  defendant  appeared  by 
counsel  at  the  arraignment,  counsel  assigned 
at  later  term  is  not  entitled  to  the  allow- 
ance. (Crim.  Code.  §  308) — People  v.  De 
Medicls,  39  Misc.  (N.  Y.)  438.  And  when  so 
assigned  he  may  be  allowed  the  full  statu- 
tory allowance  together  with  his  expenses — 
In  re  Monfort,  78  App.  Div.  (N.  Y.)  567.  In- 
cluding expense  of  preparing  exhibits — In  re 
Monfort  78  App.  Div.  (N.  Y.)  567.  If  he  ap- 
peals merely  for  delay  he  will  not  be  allowed 
compensntion  therefor — People  v.  Triola,  175 
N.  Y.  407.  Intliana.  Attorneys  assigned  to 
defend  can  only  recover  fees  against  the 
county  to  the  amount  apportioned  for  such 
purpose — Miami  County  Com'rs  v.  Mowbray 
(Ind.)   66  N.  E.  46. 

8.3.  Code  Civ.  Pro.  §  1867 — Reins  v.  King, 
27  Mont.   511,  71  Pac.  763. 


84.  Bellby  v  Superior  Ct.,  138  Cal.  51,  70 
Pac.   1024. 

85.  A  motion  to  retax  made  a  year  after 
the  decree  had  been  entered,  and  from  which 
no  appeal  had  been  taken,  comes  too  late — 
Paisley  v.  Jones  (Miss.)  34  So.  557. 

86.  Iowa  Sav.  &  Loan  Ass'n  v.  Chase,  118 
Iowa,  51;  Patton  v.  Cox  (Tex.  Civ.  App.)  75 
S.   W.    871. 

87.  Chicago  City  Ry.  Co.  v.  Burke,  102  111. 
App.  661. 

88.  In  re  Spafford  Ave.,  76  App.  Div.  (N. 
Y.)    90. 

89.  Chicago  City  Ry.  Co.  v.  Burke,  102  111. 
App.  661. 

90.  They  cannot  be  reviewed  by  manda- 
mus— Murray  v.  Gillespie  (Tex.)  72  S.  W. 
160.  The  remedy  of  a  surety  is  by  appeal 
from  the  original  Judgment,  it  going  against 
them  for  costs,  and  not  by  motion  for  retaxa- 
tion and  appeal  from  the  order — Staples  v. 
Barclay    (Colo.)   71  Pac.  374. 

91.  Attorneys'  fees  in  suits  to  collect 
taxes — State  v.  Keokuk  &  W.  R.  Co.  (Mo.) 
75    S.   W.    636. 

92.  Johnson  v.   New  Orleans,   109  La.    696. 

93.  Hendon  v.  Delvichio   (Ala.)    34  So.  830. 

94.  Execution  cannot  Issue — Decker  v.  St. 
Louis  &  S.  Ry.  Co.,  92  Mo.  App.  50. 

95.  Applied  to  tax  sale — State  v.  Wilson 
(Mo.)    74  S.  W.   636. 

96.  Mitchell  v.  Evans,  18  App.  D.  C.  254. 

97.  Grafeman  Dairy  Co.  v.  St.  Louis  Dairy 
Co.,   96  Mo.  App.   495. 

98.  Where  the  plaintiff  had  been  allowed 
to  sue  as  a  poor  person  In  the  federal  court 
it  was  proper  not  to  stay  the  action  in  the 
state  court  after  a  non-suit  had  been  taken 


816 


COUNTERFEITING— COUNTIES. 


§2 


COUNTEBFEITING. 

The  prosecution  should  not  be  required  to  elect,  before  introducing  evidence, 
between  a  count  for  making  and  one  for  uttering.^"" 

COUNTIES. 

S  1.     Creation  and   Organization.  ,       §  3.     Public    Powers,    Duties    and     Llabili- 

§  2.     Oflioers,   Personal  Riglits   and   Liabil-    ties.     Contracts;    Bonds;    Torts;    Claims    ana 
ities.  I  Warrants. 

§  1.  Creation  and  organization. — Generally  a  new  county  can  be  created 
only  on  consent  of  the  qualified  voters;  the  proceedings  to  establish  being  purely 
statutory  will  be  shown  in  the  footnotes.^  The  question  of  legality  of  organization 
cannot  be  raised  collaterally.-  On  the  dissolution  of  a  county  and  the  formation  of 
a  new  division  including  the  entire  county  territory,  the  former  succeeds  to  the 
property  and  liabilities  of  the  old  county.^  The  newly  organized  county  is  liable 
for  the  expenses  of  organization.* 

§  3.     Officers,  personal  rights,  and  liahilities. — A  county  oflacer  cannot  at  the 


in  the  former  court — Fox  v.  Jacob  Dold 
Packing  Co..  96  Mo.  App.  173.  The  action 
may  be  stayed  until  costs  of  the  former  ac- 
tion should  be  paid — Plumley  v.  Simpson 
(Wash.)  71  Pac.  710.  Dismissal  with  costs 
and  without  prejudice  will  only  stay  the  new 
suit  in  case  of  non-payment  from  the  time 
the  costs  must  be  paid  under  the  statute. 
N.  Y.  Code  Civ.  Pro.  §  779  provides  that  such 
costs  shall  be  paid  within  10  days — Kellogg 
Switchboard  &  Supply  Co.  v.  Glen  Tel.  Co., 
121  Fed.  174.  A  second  application  for  the 
same  relief  cannot  be  had  without  payment 
of  the  costs  on  denial  of  first  application — 
Hunt  V.  Sullivan.  79  App.  Div.  (N.  Y.)  119. 
It  is  error  to  order  dismissal  of  complaint 
on  failure  to  pay  costs  as  a  condition  of 
granting  a  continuance — Hewett  v.  Cook,  7.5 
App.  Div.  (N.  Y.)  239.  Where  the  motion  to 
amend  title  was  denied  with  costs  an  order 
permitting  supplementary  summons  to  issue 
is  void — Hochman  v.  Hauptman,  76  App.  Div. 
(N.  Y.)  72.  Costs  on  affirmance  of  an  order 
granting  new  trial  must  be  paid  before  the 
cause  can  be  restored  to  the  calendar — Co- 
hen V.  Krulewitch,  81  App.  Div.   (N.  Y.)   147. 

99.  As  by  noticing  the  cause  for  trial 
rMattice  v.  Shelland,  76  App.  Div.  [N.  Y.] 
236);  or  by  proceeding  to  trial  after  default 
judgment  had  been  vacated  with  costs  plain- 
tiff waived  the  stay — Dout  v.  Brooklyn 
Heights  R.  Co.,  84  App.  Div.    (N.  Y.)    618. 

100.  Burgess  v.  State  (Miss.)  33  So.  499. 

1.  Minnesota.  The  petition  first  filed  for 
organization  of  a  new  county  is  entitled  to 
priority  of  consideration  by  the  state  offi- 
cials— State  V.  Larson  (IMinn.)  94  N.  W. 
226.  Laws  1895,  p.  270,  c.  124,  §  2  amend- 
ing Laws  1893,  p.  262,  c.  143,  §  4  is  not 
in  violation  of  constitution,  §  2,  art.  1,  since 
it  does  not  operate  to  disfranchise  electors 
having  the  right  to  vote  on  the  organization 
of  a  new  county — State  v.  Falk  (Minn.)  94 
N.  W.  879.  But  one  proposition  involving 
the  same  territory  can  be  submitted  at  the 
same  election  to  create  a  new  county  and 
to  warrant  a  submission  of  more  than  one 
there  must  be  a  material  and  substantial 
difference  in  the  territory  to  be  included 
within  their  respective  boundaries — State  v. 
r^rson    (Minn.)    94  N.   W.   226.     In  case   sev- 


eral competing  propositions  are  submitted 
at  the  same  election,  the  electors  are  au 
thorized  to  vote  only  upon  one,  which  must 
be  carried  by  an  affirmative  vote  of  the 
majority  on  that  issue  and  a  plurality  over 
its  competitors — State  v.  Falk  (Minn.j  94 
N.   W.    879. 

South  Carolina.  A  petition  to  the  gov- 
ernor for  the  establishment  of  a  new  county 
should  be  made  by  the  qualified  voters  with- 
in the  area  of  each  section  of  the  old  coun- 
ty proposed  to  be  cut  off  to  form  a  new 
county,  irrespective  of  township  or  school 
district  lines — Fraser  v.  James.  65  S.  C.  78. 
The  result  of  an  election  governs  the  legis- 
lative right  to  create  a  new  county — Id. 
Whether  the  constitutional  requirements  in 
the  creation  of  a  new  county  from  the  old 
have  been  followed  is  a  question  for  the 
determination   of  the    legislature — Id. 

AVyoniing.  The  county  organization  com- 
missioner may  incur  obligations  for  sup- 
plies for  the  conduct  of  the  election — Tay- 
lor V.  Board  of  Com'rs  (Wyo.)  70  Pac.  835. 
The  commissioners  and  their  clerk  are  not 
entitled  to  compensation  as  county  officers 
—Id. 

2.  A  newly  organized  county  is  a  de  facto 
county  from  the  time  of  the  governor's  proc- 
lamation to  that  effect,  and  the  legality  of 
its  organization  cannot  be  collaterally  at- 
tacked— State  v.  District  Ct.  (Minn.)  95  N. 
W.    591. 

3.  Garfield  Tp.  v.  Herman  (Kan.)  71  Pac. 
517.  Green  County  of  Texas  transferred  to 
Green  County  Oklahoma  by  act  of  Con- 
gress, May  4,  1896,  the  latter  county  on 
such  transfer  being  liable  for  debts  of  the 
former — Board  of  Com'rs  v.  Clarke  (Okl.) 
70  Pac.  206.  A  legislative  resolution  pro- 
viding for  a  commission  to  audit  accounts 
and  claims  against  a  disorganized  county, 
creating  a  board  of  auditors  for  that  pur- 
pose with  power  to  determine  the  validity 
and  amount  of  the  claims  and  to  apportion 
them  against  property  of  the  disorganized 
county,  is  invalid  as  conferring  judicial  pow- 
ers on  such  board — Fitch  v.  Board  of  Au- 
ditors  of  Claims    (Mich.)    94   N.   W.    952. 

4.  Taylor  v.  Board  of  Com'rs  (Wyo.)  70 
Pac.   835. 


§  2 


OFFICERS. 


817 


same  time  hold  more  than  one  office,"  nor  can  they  while  holding  office  enteT  into 
contractual  relations  with  the  county.®  Statutes  giving  a  remedy  to  compel  officers 
to  perform  their  duties  must  be  strictly  followed.'' 

The  county  treasurer  is  entitled  to  all  the  county  funds,^  and  may,  by  man- 
damus, compel  county  commissioners  to  pay  over  funds  in  their  possession.® 

An  officer's  powers  are  co-extensive  with  his  term  of  office,^"  but  an  action 
instituted  in  behalf  of  a  county  by  an  officer  does  not  abate  on  the  expiration  of 
his  term  of  office.^^  The  issuance  and  service  of  a  summons  in  error  in  an  action 
against  the  coiinty  may  be  waived  by  the  county  commissioners.^- 

For  a  tort  which  results  from  a  mere  neglect  of  duty,  the  officer  cannot  be 
held  personally  liable,^^  but  he  may  be  held  liable  for  the  costs  of  proceedings 
to  compel  him  to  perform  his  duties,^*  and  for  official  misconduct  he  may  be 
prosecuted  criminally.*' 

The  right  and  amount  of  compensation  that  officers  are  entitled  to  being 
purely  statutory  will  be  shown  in  the  footnotes.*®     Generally  the  salaries  of  county 


5.  That  the  trustee  of  county  bonds  was 
a  county  commissioner  at  the  time  of  his 
appointment  is  not  ground  for  removal,  lie 
having-  thereafter  and  before  entering  upon 
his  duties  as  trustee  resigned  from  the  of- 
tice  of  commissioner — Potter  v.  Lainhart 
(Fla.)  33  So.  251.  Rev.  St.  1898.  §§  541,  542. 
vests  in  the  county  commissioners  discre- 
tionary power  to  consolidate  the  duties  of 
the  county  officers  and  in  the  absence  of 
such  consolidation  one  person  cannot  hold 
and  discharge  the  duties  of  two  or  more 
county  offices  simultaneously — State  v.  Wool- 
fenden  (Utah)  72  Pac.  690.  Where  at  a 
county  election,  one  candidate  was  nominat- 
ed by  both  parties  to  two  offices  and  his 
name  alone  appeared  on  the  ballots  which 
were  voted  and  canvassed  without  objection, 
a  presumption  of  consolidation  arises — State 
v.  Woolfenden  (Utah)  72  Pac.  690.  Evidence 
that  an  attempted  consolidation  was  inef- 
fectual, because  publication  thereof  w^as  not 
properly  made,  is  insufficient  to  overcome 
a  presumption  of  consolidation  of  offices — 
Id. 

6.  County  officers  Including  a  county  sur- 
veyor cannot  purchase  public  lands  (Tex. 
Pen.  Code,  art.  123) — Keen  v.  Featherston 
(Tex.    Civ.    App.)    69    S.    W.    983. 

7.  The  fiscal  court  has  no  power  to  en- 
force the  attendance  of  justices  of  the  peace 
by  attachment  as  is  allowed  in  case  of  a 
court  of  claims — Stephens  v.  Wilson,  24  Ky. 
L.    R.    18;!2,    72    S.    W.    336. 

8.  He  is  entitled  to  the  public  road  fund 
under  Political  Code  1895,  §§  458,  575 — Board 
of  Roads  &  Revenue  v.  Clark  (Ga.)  43  S.  E. 
722. 

9.  Board  of  Roads  &  Revenue  v.  Clark 
(Ga.)    43    S.   E.    722. 

10.  County  commissioners  having  appoint- 
ive powers  can  only  appoint  for  the  term 
of  office  for  which  they  were  elected — Han- 
cock v.  Craven  County  Com'rs,  132  N.  C. 
209.  An  act  changing  the  time  for  com- 
mencement of  term  of  office  of  a  particular 
officer  of  a  particular  county,  is  valid — Hunt 
V.  Buhror  (Mich.)  94  N.  W.  589.  A  coun- 
ty treasurer  elected  at  a  general  election 
in  1902  will  not  begin  his  term  of  office  until 
the  first  Monday  in  October  1903 — Finley 
v.    Combs    (Okl.)    71    Pac.    625. 

11.  Sebree  v.  Commonwealth,  25  Ky.  L. 
R.   121,  74   S.  W.  716. 

Cur.   Law — 52. 


12.  Dakota  County  v.  Bartlett  (Neb.)  93 
N.    W.    192. 

13.  County  commissioners  cannot  be  held 
under  Gen.  St.  §  1829  for  death  caused  by 
fire  which  resulted  from  defective  electric 
wiring  of  the  county  jail  and  which  they 
neglected  to  repair — Miller  v.  Ouray  Elec. 
Light  &  Power  Co.  (Colo.  App.)  70  Pac. 
447. 

14.  Where  the  holder  by  mandamus  com- 
pels payment  of  a  warrant,  he  may  recover 
as  damages  against  the  county  treasurer 
individual  attorney's  fees  and  other  expen- 
ses incurred  in  the  prosecution  of  the  man- 
damus suit  with  interest  on  the  amount 
of  the  w^arrant;  but  to  recover  double  dam- 
ages under  Rev.  St.  1899,  art.  4,  §§  6772,  6808, 
it  is  essential  that  the  plaintiff  must  plead 
and  show  that  the  treasurer  had  been  con- 
victed of  a  misdemeanor  for  refusing  to  pay 
the  warrant  on  presentation  and  demand — 
State  v.  Adams  (Mo.  App.)  74  S.  W.  497. 
To  recover  double  damages  under  Rev.  St. 
1899,  art.  4,  §§  6772,  6808,  it  is  essential  that 
the  treasurer  willfully  and  knowingly  in 
disregard  of  his  official  duty  refused  to  pay 
the  warrant  and  acting  under  legal  advice 
that  it  was  not  his  duty  to  pay,  is  not  a 
willful    refusal — Id. 

1.5.  The  letting  of  contracts  without  the 
presence  of  other  members  of  the  board  of 
commissioners  by  a  county  supervisor,  Is 
such  misconduct  as  will  call  for  criminal 
prosecution,  but  that  he  did  not  let  con- 
tracts to  the  lowest  bidder  will  not  sub- 
ject him  to  criminal  prosecution  (Act  Feb. 
19,  1900,  p.  280) — State  v.  Jaques,  65  S.  C. 
178.  If  the  supervisor  knowingly  approves 
a  false  claim  he  may  be  prosecuted  crim- 
inally— Id. 

16.  County  officers  are  entitled  to  a  per 
diem  allowance  for  services  as  members  of 
the  board  of  review  in  addition  to  their 
regular  compensation  (Acts  1891,  p.  197,  § 
114,  amended  1895  is  not  repealed  by  act 
1895.  p.  319) — Seller  v.  State  (Ind.)  65  N. 
E.  922,  66  N.  E.  946,  67  N.  E.  448.  In  a 
proceeding  calling  in  treasury  warrants  for 
cancellation,  and  re-issuance,  the  county 
clerk  should  be  allowed  commission  for  in- 
dexing and  allowance  for  all  claims  pre- 
sented— Duncan  v.  Scott  County,  70  Ark.  607. 
A  county  bond  trustee  acting  as  a  substi- 
tute    is     entitled     to     compensation — Mercer 


818 


COUNTIES. 


§3 


officials  cannot  be  increased  during  their  term  of  oflBce,^^  nor  will  the  imposition  of 
additional  duties  within  the  scope  of  the  office  warrant  an  allowance  in  addition 
to  the  regular  salary.^^ 

For  any  breach  of  official  duty,  the  officer  and  his  sureties  are,  generally 
speaking,  liable.^® 

§  3.  Public  powers,  dutus,  and  liahilities.^° — Courts  cannot  compel  the  ex- 
ercise of  county  officer's  discretionary  powers,-^  but  they  can  compel  the  performance 
of  duties.-' 


County  V.  Pearson,  24  Ky.  L..  R.  1368,  71 
S.  W.  639.  The  county  trustee  of  realty 
bonds  under  the  statute  is  entitled  to  be 
reimbursed  for  counsel  fees  expended  in 
collecting  from  the  county — Mercer  County 
V.  Pearson,  24  Ky.  L.  R.  1368,  71  S.  W.  639. 
Mississippi  Code  1892  did  not  repeal  Act 
1890.  p.  386,  c.  250,  §  8,  authorizing  salary 
to  members  of  the  board  of  supervisors  of 
Madison  County — Adams  v.  Dendy  (Miss.) 
33  So.  843.  A  county  clerk  is  entitled  only 
to  the  statutory  per  diem  compensation  and 
to  none  other  for  acting  as  a  member  of 
the  board  of  equalization — State  v.  Adams 
(Mo.)  72  S.  W.  655.  County  treasurers  are 
entitled  to  a  limited  commission  on  funds 
belonging  to  the  state  collected  and  paid 
over  by  them  in  addition  to  the  statutory 
compensation.  Laws  1871,  p.  227,  c.  110. 
§  1,  limiting  the  commission  to  1%  and 
not  to  exceed  $500.  except  in  certain  coun- 
ties, is  not  affected  by  Laws  1892,  p.  1775, 
c.  686,  §  141,  subd.  5,  fixing  compensation 
of  county  treasurers — Upham  v.  State,  174 
N.  T.  336.  The  complaint  in  an  action  by 
a  county  surveyor  to  recover  compensation 
must  state  the  time  actually  occupied  as 
-such  surveyor — Sayles  v.  "Walla  Walla  Coun- 
ty. 30  Wash.  194,  70  Pac.  256.  After  fixing 
the  salary  of  the  register  In  probate  and 
collecting  the  taxes  to  meet  the  same,  a 
county  board  cannot  prohibit  payment — Rob- 
erts  V.    Erickson    (Wis.)    94   N.   W.    29. 

17.  Etsell  v.  Knight   (Wis.)    94  N.  W.   290. 

18.  Jefferson  County  v.  Waters,  24  Ky. 
L.    R.    816,    70    S.   W.    40. 

19.  The  articles  on  "Officers"  and  "Sure- 
tyship" will  treat  more  specifically  of  these 
matters.  A  county  officer's  bond  should 
run  to  a  state  or  territory.  It  may  be  joint 
and  several  in  form — Brady  v.  Pinal  Coun- 
ty (Ariz.)  71  Pac.  910.  An  action  on  the 
county  bond  of  a  county  officer  should  be 
brought  in  the  name  of  the  state  on  rela- 
tion of  the  county  commissioner — Nowlin  v. 
State,  30  Ind.  App.  277.  The  town  and  its 
supervisors  cannot  maintain  an  action  on 
the  county  treasurer's  bond  for  failure  to  pay 
over  school  funds  apportioned  to  the  town — 
Town  of  Ulysses  v.  Ingersoll.  81  App.  Div. 
(N.  Y.)  304.  The  sureties  on  a  county  treas- 
urer's bond  are  not  liable  for  losses  occur- 
ring by  reason  of  payment  of  forged  school 
district  warrants — State  v.  Weeks.  92  Mo. 
App.  359.  The  neglectful  performance  of 
duties  as  a  county  treasurer  is  a  breach  of 
a  condition  of  his  bond  to  faithfully  dis- 
charge his  duties,  as  where  he  received 
a  check  from  a  b.ank  for  county  bonds,  gave 
the  revenue  board  a  receipt  as  for  money 
received,    deposited    the    check    in    the    bank 


to  his  credit  as  treasurer  as  a  special  fund, 
the  bank  having  failed  after  a  small  part 
had  been  paid  on  warrants — Montgomery 
County  v.  Cochran  (C.  C.  A.)  121  Fed.  17. 
Sureties  on  an  official  bond  are  liable  only 
for  such  sums  of  money  as  the  principal 
may  lawfully  receive  in  the  discharge  of 
liis  official  duties — Wilson  v.  State  (Kan.) 
72  Pac.  517.  An  action  may  be  maintained 
on  the  bond  of  a  county  officer  for  failure 
to  pay  over  to  a  successor,  though  the  au- 
ditors had  not  yet  settled  and  adjusted  his 
accounts — Lancaster  County  v.  Hershey,  205 
Pa.  343.  The  county  attorney's  sureties  are 
not  liable  for  his  failure  to  pay  over  money 
collected  on  promissory  notes  given  by 
needy  farmers  under  a  provision  of  Laws 
1895,  p.  394,  §  242 — Wilson  v.  State  (Kan.) 
72  Pac.  517.  The  sureties  on  the  county 
auditor's  bond  are  liable  for  the  acts  of 
the  auditor's  deputy,  the  latter  having  pow- 
er to  remove  him  from  office — Board  of 
Com'rs  V.  Sullivan  (Minn.)  93  N.  'W.  1056. 
The  county  treasurer  and  his  sureties  are 
liable  for  the  redemption  by  him  of  fraud- 
ulent orders  drawn  by  the  deputy  county 
auditor — Board  of  Com'rs  v.  Sullivan  (Minn.) 
93  N.  W.  1056.  The  sureties  on  the  bond 
of  an  official  are  liable  for  fees  unlawfully 
received — State  v.  Adams  (Mo.)  72  S.  W. 
655.  The  sale  of  county  warrants  is  not 
a  part  of  the  duty  of  the  county  clerk,  and 
the  purchaser  of  a  warrant  from  such  clerk 
cannot  maintain  an  action  on  the  official 
bond  of  the  clerk — State  v.  Harrison  (Mo. 
App.)  72  S.  W.  469.  Actions  against  the 
bond  of  county  officers  may  be  properly 
brought  in  the  name  of  the  county  com- 
missioners— Board  of  Com'rs  v.  Sullivan 
(Minn.)    93   N.   W.   1056. 

20.  Contruction  and  maintenance  of  high- 
ways and  bridges  see  "Highways,"  "Bridg- 
es." 

21.  The  county  commissioners  having  ex- 
clusive power  to  determine  the  necessity  for 
erection  of  a  new  court  house  cannot,  in  the 
absence  of  fraud,  be  compelled  to  act.  Mat- 
kin  V.  Marengo  County  (Ala.)  34  So.  171. 
That  proceedings  by  the  court  of  county 
commissioners  for  the  erection  of  a  new 
court  house  was  adjourned  over  to  the  sec- 
ond succeeding  term,  the  intervening  term 
being  limited  by  the  Code  to  the  transaction 
of  business  relating  solely  to  taxation,  will 
not  affect  the  validity  of  proceedings — Mat- 
kin  V.  Marengo  County   (Ala.)   34  So.   171. 

22.  Mandamus  is  the  proper  remedy  for 
enforcement  of  the  duty  of  a  county  fiscal 
court  to  restore  a  destroyed  bridge  on  the 
county  road — Leslie  County  v.  Wooton  (Ky.) 
75    S.    W.    208. 


POWERS  AND   DUTIES. 


819 


County  officers  cannot  by  virtue  of  their  office  alone  donate  county  funds/'  or 
release  county  claims,^*  or  sell  county  property.^^ 

Eemoval  of  the  court  house  within  the  same  town  is  not  a  removal  of  the 
"county  seat"  on  which  a  vote  must  be  taken.^*  Proceedings  to  enlarge  or  es- 
tablish a  new  court  house  instituted  under  an  invalid  act  cannot  be  supported  as  a 
proceeding  under  a  previously  existing  valid  statute.^^ 

A  county  cannot  be  estopped  to  dispute  the  validity  of  an  unauthorized  and 
void  act  by  officers  merely  because  it  received  tlie  benefit  of  such  act/®  though  the 
approval  of  a  report  of  the  act  will  operate  as  a  ratification.^" 

On  refusal  of  officers  to  act,  a  taxpayer  may  sue  to  recover  county  funds  in  the 
possession  of  an  officer,  to  which  action  the  state  is  not  a  necessary  party.^"  The 
prosecuting  attorney  is  the  proper  person  to  restrain  misuse  of  county  property  by 
the  commissioners.^^ 

Contracts. — Generally,  counties  are  without  authority  to  contract  or  incur  in- 
debtedness beyond  certain  fixed  limits,^^  but  such  a  limitation  refers  only  to  that 
class  of  debts  which  it  is  optional  with  the  county  to  incur  and  not  to  necessary 
expenses  of  the  governmental  functions.^^  If  a  fund  has  reached  the  legal  limit, 
it  cannot  be  increased  by  the  transfer  of  another  fund  to  it.**  The  issuance  of  re- 
funding bonds  is  not  an  incurring  of  new  debt.*'' 

A  county  is  liable  only  on  contracts  made  as  authorized,*'  and  it  can  contract 


23.  Awarding  by  resolution  a  sum  of 
money  "as  a  charity  rather  than  as  a  set- 
tlement of  a  legal  liability"  to  one  whose 
claim  for  personal  injuries  was  disallowed, 
is  without  authority — Kircher  v.  Pederson 
(Wis.)     93    N.    W.    813. 

24.  The  board  of  county  commissioners 
has  no  power  to  release  surety  on  an  ofH- 
cial's  bond — Fidelity  &  Deposit  Co.  v.  Flem- 
ing,   132    N.    C.    332. 

2.5.  An  order  directing  a  sale  of  lands 
purchased  by  the  county  under  execution 
in  favor  of  the  county,  held  to  authorize  a 
sale  by  the  commissioners — Ckrdwell  v. 
Hargis,  24  Ky.  L.  R.  1406.  71  S.  W.  4S8. 
Rev.  St.  1895,  art.  845,  authorizing  a  coun- 
ty which  holds  a  judgment  which  cannot 
at  the  time  be  collected,  to  sell  and  dis- 
pose of  the  same,  is  not  In  conflict  with 
Const,  art.  3,  §  55,  providing  that  the  legis- 
lature shall  have  no  power  to  release  or 
extinguish  any  liability  of  any  county  or 
other  municipal  corporation — Lindsey  v. 
State    (Tex.)    74    S.    W.    750. 

26.  Constitution,  §  41,  in  case  of  removal 
of  a  county  seat — Matkin  v.  Marengo  Coun- 
ty   (Ala.)    34   So.    171. 

A  county  resident  may  Institute  proceed- 
ings to  review  proceedings  for  the  removal 
of  the  county  seat — Board  of  Sup'rs  v.  Buck- 
ley (Miss.)  33  So.  650.  Act  Feb.  5,  1901, 
providing  for  the  removal  of  a  county  seat 
held   valid — Hand   v.   Stapleton,    135   Ala.    156. 

27.  Proceedings  under  Act  March  5,  1902 
cannot  be  sustained  as  a  proceeding  under 
Act  April  16,  1846 — Moreau  v.  Board  of 
Chosen    Freeholders,    68    N.    J.   Law,    480. 

28.  Missouri  &  S.  W.  Land  Co.  v.  Quinn 
(Mo.)    73   S.   W.   184. 

29.  Cardwell  v.  Hargis,  24  Ky.  L.  R.  1406, 
71  S.  "\V.  488.  Unauthorized  acts  by  the 
representative  of  the  county  commissioners' 
court  are  not  ratified  by  the  latter  by  ac- 
cepting   the    report    of    such    representatives 


making  ho  reference  to  particular  acts — 
Fayette  County  v.  Krause  (Tex.  Civ.  App.) 
73   S.    W.    51. 

30.  State  v.  Casper   (Ind.)   67  N.  E.  185. 

A  resident  may  obtain  review  of  county 
seat  removal — Board  of  Sup'rs  v.  Buckley 
(Miss.)    33   So.    650. 

31.  First  German  Reformed  Church  v. 
Summit  County  Com'rs,   23  Ohio  Cir.  R.  553. 

32.  F.  C.  Austin  Mfg.  Co.  v.  Colfax  Coun- 
ty (Neb.)  93  N.  W.  145.  A  county  cannot 
levy  a  special  assessment  to  meet  valid  out- 
standing warrants  which  represent  indebt- 
edness in  excess  of  the  constitutional  limit 
(Rev.  St.  Mo.  1899,  §  9274)— State  v.  Wa- 
bash R.  Co.,  169  Mo.  563.  A  statute  author- 
izing the  employment  and  payment  of  guards 
to  protect  property  threatened  with  mob 
violence  does  not  contravene  Const.  §  157, 
providing  that  no  county  shall  become  in- 
debted for  any  purpose  exceeding  in  any 
year  the  income  provided  for  in  such  year 
without  the  assent  of  a  third  of  the  voters 
— Hopkins  County  v.  St.  Bernard  Coal  Co., 
24   Ky.   L.    R.    942,    70  S.   W.    289. 

33.  Hopkins  County  v.  St.  Bernard  Coal 
Co.,    24    Ky.   L.   R.    942,    70   S.    W.    289. 

34.  In  such  case  the  levy  for  the  fund 
transferred  is  void — Chicago,  B.  &  Q.  R.  Co. 
v.  Lincoln  County  (Neb.)  92  N.  W.  208. 
Comp.  St.  Neb.  1901,  c.  18,  art.  3,  §  4— 
Bacon  V.  Dawes  County  (Neb.)  92  N.  W. 
313. 

35.  Walling  V.  Lummis  (S.  D.)  92  N.  W. 
1063. 

36.  It  is  not  liable  for  services  rendered 
in  securing  evidence  to  assist  the  prosecu- 
tion for  violations  of  the  liquor  laws  on 
request  of  the  prosecutor  of  pleas;  but  such 
party  should  submit  his  claim  to  the  judge 
of  sessions  or  oyer  and  terminer — Gibboney 
v.  Board  of  Chosen  Freeholders  (C.  C.  A.) 
122    Fed.    46. 


.S20 


COUiNTlES. 


§3 


only  through  its  authorized  officials,"  who  can  act  only  within  the  scope  of  their 
authorit}'.^' 

Since  the  board  of  commissioners  can  act  only  as  an  entity,  contracts  made  by 
individual  members  are  not  binding  on  the  county.^''  If  given  authority  to  appro- 
priate money  for  a  specific  purpose,  it  has  authority  to  enter  into  contracts  involving 
the  expenditure  of  moneys  appropriated.'*"  It  has  power  to  enter  into  a  contract 
to  erect  a  fireproof  vault  for  public  records  without  previous  legislative  authoriza- 
tion," to  make  a  contract  with  one  to  investigate  and  discover  taxable  property 
which  through  fraud  or  otherwise  had  been  omitted  from  taxation,*^  to  employ 
counsel  to  defend  civil  suits,  though  the  county  had  at  the  time  a  regular  attorney,^^ 
but  only  to  prosecute  and  defend  actions  wherein  the  county  is  a  party.** 

BonJs.*^ — It  is  within  the  power  of  the  legislature  to  authorize  counties  to 
issue  bonds  for  the  construction  of  public  improvements  without  a  submission  of 
the  question  to  the  people.*^  It  is  essential  to  the  validity  of  county  bonds  that 
all  the  statutory  requirements  as  to  their  issuance  be  followed ;  the  mode  of  issuance 
being  dependent  on  various  statutes  is  shown  in  the  footnotes.*^     An  issue  of  bonds 


37.  The  county  court  having  authority  to 
subscribe  for  railroad  stock  may  properly 
order  the  clerk  of  court  to  make  the  sub- 
scription, such  being  a  mere  ministerial  act 
and  not  a  delegation  of  power— Green  Coun- 
ty  V.    Shorten    (Ky.)    75    S.    W.    251. 

38.  County  officers  cannot  contract  for 
the  publication  of  a  sheriff's  election  proc- 
lamation or  other  public  notice  in  excess 
of  the  number  directed  by  statute  and  the 
fact  that  there  is  on  the  same  paper  a  charge 
for  a  publication  which  is  authorized  wili 
not  render  it  valid  (Vindicator  Printing  Co. 
V.  State,  68  Ohio  St.  362);  and  the  members 
of  the  board  do  not  become  individually 
liable  on  contracts  beyond  the  scope  of  their 
power — Warren  County  v.  Dabney  (Miss.) 
32    So.    908. 

3!).  "Williams  v.  Board  of  Com'rs  (Mont.) 
72  Pac.  755.  An  oral  commission  given  by 
members  to  person  to  connect  with  a  county 
sewer  is  not  the  act  of  a  commissioners' 
court — Fayette  County  v.  Krause  (Tex.  Civ. 
App.)  73  S.  W.  51.  A  resolution  signed  and 
attested  by  commissioners  individually  of- 
fering a  reward  is  not  a  personal  obligation 
— Schieber  v.  Von   Arx,   87   Minn.   298. 

'10.  Bayne  v.  Board  of  Com'rs  (Minn.)  95 
N.    W.    456. 

41.  B.  F.  Smith  Fireproof  Const.  Co.  v. 
Munroe    (Md.)    55   Atl.   315. 

42.  It  is  not  the  duty  of  the  county  treas- 
\!rer  to  investigate  and  discover  property 
omitted  from  the  assessment  list.  The  court 
will  not  on  appeal  presume  that  a  contract 
for  fifty  per  cent  as  a  compensation  for 
such  services,  is  unreasonable — Shinn  v. 
Cunningham  (Iowa)  94  N.  W.  941.  Act  28th 
Gen.  Assem.  p.  333.  c.  50,  limiting  payment 
for  discovery  of  property  omitted  from  tax- 
ation to  15  per  cent,  does  not  apply  to  a 
contract  for  a  greater  rate  made  with  the 
county  supervisors  prior  to  its  passage — 
Shinn   v    Cunningham    (Iowa)    94   N.    W.    941. 

4,1.  Act  1892,  §  293 — Board  of  Sup'rs  v. 
Booth  (Miss.)  32  So.  1000.  Contract  with 
•  >ne  not  a  county  officer  to  pay  for  services 
in  preparing  evidence  is  valid,  though  such 
person  employed  a  county  officer  to  do  work 


for    him — Contra    Costa   County    v.    Soto,    138 
Cal.    57.    70    Pac.    1019. 

44.  Williams  v.  Board  of  Com'rs  (Mont.) 
72  Pac.    755. 

45.  Under  N.  Car.  Ordinance  March  8. 
1868,  Wilkes  County  had  authority  to  issue 
'londs  to  aid  construction  of  the  Northwest- 
ern North  Carolina  Railroad — Wilkes  County 
.-.   Coler,    190  U.   S.   107. 

46.  But  Gen,  Laws  1893,  c,  133  authorizing 
county  commissioners  of  certain  counties 
to  issue  bonds  for  the  construction  of  a 
"ourt  house,  limiting  its  operation  to  such 
jounties  as  had,  at  the  time  of  its  passage, 
■expended  at  least  $7,000  for  the  court  house 
purpose,  is  invalid  as  special  legislation — 
Hetland  v.  Board  of  Com'rs  (Minn.)  95  N. 
W.   305. 

47.  Hillsborough  County  v.  Henderson 
(Fla.)    33   So.   997. 

Election  to  obtain  consent  of  taxpayers. 
The  county  commissioners  have  authority 
to  submit  the  question  whether  bonds 
shall  be  issued  for  the  erection  of  public 
buildings  and  the  construction  of  high- 
ways to  the  voters  as  an  entirety.  (Rev. 
St.  Fla.  §  591,  amended  acts  1899,  c.  4711, 
Rev.  St.  §  593) — Potter  v.  Lainhart  (Fla.) 
33  So.  251.  It  is  essential  that  the  notice 
of  an  election  for  the  purpose  of  determin- 
ing the  question  of  issuance  of  bonds  must 
be  published  during  the  statutory  time 
prior  to  the  election;  that  is  thirty  days  next 
preceding  the  day  of  the  election  (Pol.  Code, 
Ga,  §  377,  not  being  repealed  by  Civil  Code, 
§  5458) — Davis  v.  Dougherty  Co.  (Ga.)  42  S. 
E.  764.  A  notice  of  an  election  in  every  re- 
spect in  compliance  with  the  statute,  is 
sufficient,  thougli  it  fails  to  state  the  date 
that  the  bonds  were  to  bear,  or  the  price  at 
which  the  bonds  are  to  be  sold,  or  that  the 
notice  does  not  bear  any  date,  it  being 
Droperly  published  prior  to  the  election — 
Wimberly  v.  Twiggs  Co.,  116  Ga.  50.  The 
form  of  the  ballot  for  an  election  to  deter- 
mine the  issuance  of  bonds  for  county  Im- 
nrovements  will  be  governed  by  Rev.  St. 
Fla.  §§  592,  595 — Potter  v.  Lainhart  (Fla.) 
33  So.  251.  A  majority  vote  at  an  election 
to  determine  the  issuance  of  bonds  for  pub- 


§3 


POWERS  AND   DUTIES. 


821 


is  not  invalid  in  toto  because  of  excess  issue,**  nor  will  the  making  of  illegal  special 
assessments  to  pay  them  affect  their  validity.*"  That  the  bidder  was  permitted  to 
take  the  bonds  on  payment  of  the  first  instalment  without  giving  security  will  not 
invalidate  the  bonds. ^^ 

It  is  within  the  power  of  the  legislature  to  validate  county  bonds/*  and  such 
an  act  will  affect  bonds  issued  and  those  to  be  issued.^^ 

A  county  may  be  estopped  to  question  the  validity  of  bonds  issued  by  the  re- 
citals therein,^*  but  it  cannot  be  estopped,  even  as  against  a  bona  fide  purchaser, 
to  question  the  validity  of  bonds  issued  which  contained  no  recital  as  to  the  author- 
ity of  officers  issuing  them  or  as  to  the  performance  of  the  requisite  preliminaries,''* 
since  a  purchaser  of  such  bonds  is  put  upon  inquiry  as  to  the  authority  of  the  offi- 
cers,^^  particularly  where  the  issuance  was  made  a  matter  of  court  record,^^  and 
this  though  the  county  had  paid  interest  on  the  bonds  for  a  few  vears.^''  A  county 
which  had  received  a  valuable  consideration, — which  is  presumed — for  bonds  issued, 
cannot  repudiate  bonds  issued  in  lieu  of  the  original  issue.^*     A  taxpayer  may 


lie    Improvements     determines     the     result — 
Potter  V.    Lainhart   (Fla.)    33  So.   251. 

Issuance  by  oitieers.  A  resolution  of  the 
board  of  commissioners  to  issue  bonds  duly 
recorded  and  sig-ned  by  each  is  valid,  though 
the  minutes  of  the  board  did  not  recite  that 
It  was  seconded  and  formally  voted  upon  by 
the  board — Potter  v.  I.ainhart  (Fla.)  33  So. 
251.  The  commissioners  have  authority  to 
Issue  bonds  only  for  the  purpose  specified 
In  the  resolution  authorizing  the  issuance — 
Id.  It  is  essential  that  the  county  board  of 
commissioners  provide  a  sinking  fund  by 
resolution  for  the  redemption  of  bonds  be- 
fore their  issuance  (Fla.  Rev.  St.  §  602.  Act 
1893.  c.  42S6) — Potter  v.  Lainhart  (Fla.)  33 
So.  251.  The  resolution  of  county  commis- 
sioners for  the  issuance  of  bonds  must  fix 
the  rate  of  interest  that  they  will  bear.  Rev. 
St.  Fla.  1892,  §§  591-593.  A  provision  that 
they  shall  not  bear  more  than  4  per  cent 
interest  per  annum  is  insufficient — Hills- 
borough County  V.  Henderson  (Fla.)  33  So. 
997.  The  county  commissioners'  resolution 
for  the  issuance  of  bonds  should  state  the 
amount  of  bonds  required  for  each  purpose 
where  more  than  one  purpose  is  designated. 
Providing  for  gross  amount,  one  of  the  pur- 
poses being  the  funding  of  the  county  debt. 
is  suflficient — Hillsborough  County  v.  Hen- 
derson (Fla.)  33  So.  997.  County  bonds  is- 
sued in  form  prescribed  by  resolution  of  the 
commissioners,  signed  by  the  chairman,  at- 
tested by  the  county  clerk  and  countersigned 
by  the  county  treasurer  under  seal  of  the 
board  are  valid  county  bonds — Potter  v. 
Lainhart  (Fla.)  33  So.  251.  Counties  having 
authority  to  issue  bonds  may  make  them 
payable  in  gold  coin  of  the  United  States 
of  the  present  standard  weight  and  fineness — 
Hillsborough  County  v.  Henderson  (Fla.) 
33  So.  997.  The  presentment  of  county  bonds 
to  the  attorney  general  for  approval  as  re- 
quired by  statute  is  a  mere  ministerial  act 
— Martin  Co.  v.  Gillespie  Co.  (Tex.  Civ.  App.) 
71  S.  W.  421.  The  issuance  of  bonds  and 
the  levying  of  a  tax  required  for  their  pay- 
ment and  delivery  to  a  purchaser,  authorizes 
such  purchaser  to  submit  them  to  the  at- 
torney general  for  approval — Id.  It  is  not 
a  fraud  on  the  part  of  the  purchaser  of 
bonds   from   a   county   to   fail   to   disclose   to  | 


the  attorney  general  at  the  time  of  i5ub- 
mitting  them  to  him  for  approval  as  re- 
quired by  the  statute  an  attempted  repu- 
diation  of  the   bonds  by  the  county — Id. 

48.  Martin  Co.  v.  Gillespie  Co.  (Tex.  Civ. 
App.)    71    S.   W.   421. 

49.  Com'rs  of  Franklin  County  v.  Gar- 
diner Sav.  Inst.   (C.  C.  A.)   119  Fed.  36. 

50.  If  the  action  is  not  discretionary  with 
the  commissioners  it  is  an  irregularity  at 
most  that  may  be  cured  by  legislative  ac- 
tion— Potter  v.  Lainhart  (Fla.)  33  So.  251. 
If  a  bid  is  stated  In  the  amount  of  dollars 
and  is  accepted,  it  must  be  paid  In  current 
money — Id.  A  county  treasurer  may  re- 
ceive checks  or  certificates  of  deposit  in  ex- 
change for  county  bonds  which  will  be  con- 
sidered "funds  and  money"  In  his  hands 
within  the  statute  authorizing  the  issue  of 
the  bonds — Montgomery  County  v.  Cochran 
(C.  C.  A.)   121  Fed.  17. 

5t.  "Where  bonds  were  Issued  before  a 
sinking  fund  was  provided  for  their  re- 
lemption  an  act  validating  them  is  not  In 
violation  of  Const,  art.  9.  §  5,  authorizing 
the  legislature  to  empower  counties  and 
lowns  to  assess  taxes  for  county  and  mu- 
nicipal purposes  and  for  no  other  purpose — 
Potter  V.  Lainhart  (Fla.)  33  So.  251.  A 
statute  validating  bonds  issued  for  the  con- 
struction of  highways  and  county  buildings, 
validates  bonds  issued  for  roads  and  a  court- 
house, and  a  resolution  of  the  bonrd  of  com- 
■nissioners  authorizing  a  submission  to  the 
electors   for   the   latter   issuance — Id. 

52.  Potter   V.    Lainhart    (Fla.)    33    So.    251. 

53.  Bonds  issued  by  Stanley  County,  North 
Carolina,  to  aid  the  construction  of  the 
Yatkin  Valley  Railroad  are  valid  obligations 
of  the  county — Stanley  County  v.  Coler,  190 
n.  S.  437.  A  statement  in  the  certificate 
->t  approval  of  county  bonds  by  the  attorney 
<?eneral  that  they  were  submitted  in  accord- 
ince  with  the  requirement  of  the  statute 
for  approval  by  him,  estops  the  county  from 
lenying    the    truth    thereof — Martin     Co.     v. 

Gillespie   Co.    (Tex.    Civ.   App.)    71    S.   W.    421. 

54.  55,  56,  57.  Green  County  v.  Shortell 
fKy.)    75   S    W.   251. 

.58.  MarMn  County  v.  Gillespie  County 
(Tex.  Civ.  App.)   71  S.  "W.  421. 


822 


COUNTIES. 


i  3 


maintain  an  action  and  declare  bonds  void  as  being  in  excess  of  the  statutory 
limit.'® 

The  statutory  mode  of  redemption  of  county  bonds  has  been  held  not  the  ex- 
clusive mode.®" 

Torts. — In  the  abisonce  of  statutory  provisions,  counties  cannot  be  held  liable 
for  torts,"  particularly  the  torts  of  its  officers  acting  without  the  scope  of  their 
authority." 

Presentation,  allowance,  enforcement,  and  payment  of  claims.  Issuance  of 
warrants. — In  presenting  claims  against  a  county,  the  statutory  requisites  must  be 
complied  with.®^  The  decision  must  specify  the  items  allowed  or  disallowed."  An 
appeal  lies  from  the  refusal  of  the  proper  officers  to  inspect  and  accept  a  work  done 
under  a  contract,®^  only  after  they  have  refused  to  allow  a  claim  for  the  work  done.®® 
The  anpeal  from  the  decision  of  the  board  on  a  claim  presented  must  be  from  the 
entire  decision,®'  and  it  vacates  the  entire  decision  of  the  board.®*  In  the  absence 
of  a  specific  agreement,  a  county  is  not  liable  for  interest  on  claims.®"' 

It  is  essential  that  a  claim  against  the  county  be  first  audited  before  action 
can  be  brought  thereon,'"  and  a  decision  may  be  presumed  by  reason  of  lapse  of 


50.  Comr's  of  Owen  County  v.  Spangler. 
159   Ind.   575. 

«0.  A  provision  in  an  act  authorizing  the 
issuance  of  county  bonds  for  road  improve- 
ments that  they  be  paid  for  by  assessment 
upon  the  property  abutting  the  improve- 
ments is  not  exclusive  of  any  other  mode 
of  payment  for  the  same,  the  obligation  to 
pay  being  unconditional — Com'rs  of  Franklin 
County  V.  Gardiner  Sav.  Inst.  (C.  C.  A.)  119 
Fed.  36.  Act  Gen.  Assem.  Ala.  1900,  1901, 
pp.  1722-1728.  providing  for  the  issuance  of 
bonds  for  the  construction  of  sewers,  held 
not  to  intend  by  section  11  providing  for  a 
special  tax  levy,  that  the  principal  of  such 
bonds  should  be  paid  exclusively  from  such 
fund  but  that  it  was  payable  out  of  any 
funds — Birmingham  Trust  &  Sav.  Co.  v. 
Jefferson    County    (Ala.)    34    So.    398. 

61.  Trespass  in  taking  land  for  construc- 
tion of  highway  cannot  be  maintained — 
Hitch  V.  Edgecombe  County  Com'rs  (N.  C.) 
44  S.  E.  30.  A  county  cannot  be  held  liable 
for  false  arrest  (Const,  art.  5.  §  15,  Rev.  St. 
§§  1104,  5181,  provides  that  all  prosecutions 
shall  be  carried  on  in  the  name  of  the  state 
by  the  prosecuting  attorney) — Houtz  v. 
Com'rs  of  Uinta  County   (Wyo.)    70   Pac.   840. 

General  discussion  in  7  Am.  &  Eng.  Enc. 
I..aw,  947  et  seq.  A  county  may  be  liable 
for  depreciation  of  adjoining  realty  by  the 
erection  of  a  pest-house.  Evidence  held 
sufficient  to  support  a  verdict  for  defendant 
— Banks  v.  Henderson  Co.,  24  Ky.  L.  R.  1560, 
71  S.  W.  902. 

62.  It  is  not  a  part  of  the  official  duties 
of  a  county  treasurer  to  examine  the  ac- 
count of  a  tax  collector  and  report  the  same 
to  one  intending  to  become  a  surety  for 
such  collector  and  a  false  statement  made 
therein  to  such  surety  is  not  binding  on  the 
county — Commonwealth  v.  American  Bond- 
ing &  Trust  Co.    (Pa.)    54  Atl.  1034. 

63.  The  county  is  liable  only  for  the  re- 
corder's assistant's  salary  when  a  bill  for 
such  services  had  been  filed  by  the  recorder 
as  required  by  the  statute,  that  Is  at  the 
next  regular  meeting  after  the  rendition  of 
the  services  (Code,  §  496) — Allen  v.  Adams 
County   (Iowa)   94  N.  W.   261.     The  claim  of 


an  attorney  for  services  under  appointment 
of  the  court  to  assist  in  the  prosecution  of 
an  action  need  not  be  verified  as  required 
by  statute  on  a  claim  against  the  county — 
Com'rs  of  Hinsdale  County  v.  Crump  (Colo. 
App.)  70  Pac.  159.  A  certified  copy  of  the 
order  of  appointment  would  be  sufficient — 
Com'rs  of  Hinsdale  County  v.  Crump  (Colo. 
App.)  70  Pac.  159.  Claim  presented  held 
sufficiently  verified  under  the  statute — Bayne 
V.  Board  of  Com'rs  (Minn.)  95  N.  W.  456. 
A  mere  letter  from  the  attorney  for  the 
claimant  demanding  payment  is  not  a  pre- 
sentment of  the  claim  in  such  form  as  would 
authorize  commissioners  to  act  upon  it — 
Houtz  v.  Comr's  of  Uinta  County  (Wyo.)  70 
Pac.  84.  A  mere  declination  to  allow  a  claim 
IS  not  a  waiver  of  an  objection  that  it  had 
not  been  presented  in  due  statutory  form — 
Id. 

64.  People  V.  Board  of  Sup'rs,  83  App. 
Div.    (N.   T.)    51. 

65.  Young  V.  Leflore  County  (Miss.)  33  So. 
410.  Claimant  is  not  confined  to  an  appeal 
from  the  fiscal  court's  judgment;  he  may 
bring  action  against  the  county — Hudgins  v. 
Carter  County,  24  Ky.  L.  R.  1980,  72  S.  W. 
730. 

66.  Young  V.  Leflore  County  (Miss.)  33 
So.    410. 

67.  Claimant  cannot  accept  payment  un- 
der the  favorable  part  of  a  decision  and  at 
the  same  time  appeal  from  the  remainder — 
Dakota  County  v.  Borowsky  (Neb.)  93  N.  W. 
686. 

68.  Dakota  County  v.  Borowsky  (Neb.) 
93    N.    W.    866. 

69.  Chambers  v.  Custer  County  (Idaho) 
71  Pac.   113. 

70.  Chambers  v.  Custer  County  (Idaho) 
71  Pac.  113;  Houtz  v.  Com'rs  of  Uinta  Coun- 
ty (Wyo.)  70  Pac.  84.  The  trustee  who  holds 
the  county  bonds  pursuant  to  the  statute 
may  recover  his  compensation  in  an  action 
on  the  bond,  where  it  is  but  an  incident  to 
the  suit,  without  first  presenting  his  claim — 
Mercer  County  v.  Pearson.  24  Ky.  L.  R.  1368, 
71  S.  W.  639.  It  Is  not  an  essential  pre- 
requisite to  a  suit  by  a  city  against  the 
county  to  recover  taxes,  interest  and  penal- 


§3 


POWERS  AND   DUTIES. 


823 


time  and  failure  of  the  commissioners  to  act;^^  this,  however,  does  not  apply  to 
county  bonds."  Payment  of  county  warrants  cannot  be  enforced  until  there  is 
money  in  the  fund  against  which  they  are  drawn  or  on  neglect  of  the  authorities  to 
provide  such  fund."  Garnishment  will  not  lie  against  a  county.'^*  The  action 
should  be  brought  against  the  county  and  not  against  the  officers,"  and  recovery  is 
limited  to  the  amount  as  submitted  for  audit. '^^ 

In  the  adjustment  of  claims,  county  commissioners  act  ministerially  and  their 
allowances  are  not  conclusive,"  and  if  the  allowance  and  payment  of  the  claim  was 
illegal  or  unauthorized,  the  county  may  recover  back  the  payment,^^  in  an  action  by 
a  taxpayer  when  the  proper  officers  refuse  to  act,"  and  in  such  case  the  judgments 
should  be  in  favor  of  the  county  with  costs  to  the  taxpayer  f°  the  fund  so  collected 
may  be  charged  with  counsel  fees  and  expenses  of  the  suit,^^  but  only  such  fees  as 
are  reasonable  and  necessary.^^  A  taxpayer  may  sue  to  restrain  payment  of  alleged 
Illegal  claims.^' 

In  the  issuance  of  warrants,  it  is  essential  that  all  the  statutory  requirements 
as  to  form  be  followed,®*  but  an  admission  of  the  issuance  of  county  warrants  is  a 
waiver  of  an  objection  to  their  sufficiency  in  form.®* 

County  warrants  are  valid,  though  a  sufficient  amount  of  taxes  had  not  been 
collected  to  pay  them,®"  but  if  drawn  in  excess  of  the  statutory  limitation  of  indebt- 
edness are  void.®' 

Void  warrants  cannot  be  ratified  by  the  county,®®  nor  will  false  statements  in 


ties  received  by  the  county  treasurer  that 
It  file  an  itemized  claim  with  the  county 
commissioner — City  of  Fergus  Falls  v.  Com'rs 
of  Otter  Tail  County    (Minn.)    93    N.   W.    126. 

71.  Com'rs  of  Hinsdale  v.  Crump  (Colo. 
.\pp.)    70  Pac.  159. 

72.  Martin  County  v.  Gillespie  County 
(Tex.    Civ.   App.)    71    S.   W.    421. 

73.  Bacon  v.  Dawes  County  (Neb.)  92  N. 
W.    313. 

74.  Duval  County  v.  Charleston  Lumber 
&  Mfg.  Co.  (Fla.)  33  So.  531;  Michigan  Lum- 
ber &  Mfg.  Co.  V.  Duval  County  (Fla.)  34 
So.    245. 

75.  The  complaint  In  an  action  against 
the  county  commissioners  may  be  amended 
so  as  to  be  against  the  county — Conyers  v. 
Com'rs  of  Roads  &  Revenues,  116  Ga.  101. 
The  failure  to  amend  the  complaint  in  action 
pending  when  Const.  1877  took  effect,  by 
changing  name  of  county  commissioners 
to  that  of  the  county  as  defendant  will 
not  abate  the  suit.  Actions  pending  when 
Const.  1877  took  effect — Conyers  v.  Com'rs 
of  Roads  &  Revenues,  116  Ga.  101.  Evidence 
in  an  action  to  recover  for  services  as  an 
attorney  for  the  county,  held  sufficient  to 
warrant  its  submission  to  the  jury.  Suffi- 
ciency of  evidence  to  sustain  validity  of  war- 
rant— Dakota  County  v.  Bartlett  (Neb.)  93 
N.  W.  192;  Hancock  v.  Board  of  Com'rs,  132 
N.   C.    209. 

76.  Hudgins  v.  Carter  County,  24  Ky.  L. 
R.   1980,  72  S.   W.   730. 

47.  Chase  County  v.  Kelley  (Neb.)  95  N. 
W.  865;  Honey  v.  Com'rs  of  Jewell  County, 
65  Kan.  428,  70  Pac.  333;  Vindicator  Printing- 
Co.  V.  State,  68  Ohio  St.  362;  Saline  County 
V.  Gage  County  (Neb.)  92  N.  W.  1050.  Thp 
decision  of  a  county  commissioner  allowing 
a  claim  is  not  in  the  nature  of  a  Judgment 
precluding  the  auditor  from  questioning  the 
validity  of  a  claim — State  v.  Perry,  159  Ind. 
508. 

78.     Btsell  V.  Knight   (Wis.)   94  N.  W.   290; 


Honey  v.  Com'rs  of  Jewell  County,  65  Kan. 
428,  70  Pac.  333.  In  Ohio  prior  to  April  25, 
1898,  a  prosecuting  attorney  could  not  main- 
tain an  action  in  the  absence  of  fraud,  but 
since  that  act  he  has  power — Vindicator 
Printing  Co.  v.  State,  68  Ohio  St.  362.  Com- 
plaint In  action  by  a  tax  payer  to  recover 
back  allowances  illegally  made  to  a  member 
•f  the  board  of  supervisors,  held  insuffi- 
cient— "Wallace  v.  Jones,  83  App.  Div.  (N  Y  ) 
152. 

79.  A  tax  payer  may  sue  to  compel  a 
county  auditor  to  restore  money  allowed  him 
In  excess  of  his  fees  which  action  is  not 
barred  by  a  lapse  of  60  days  after  the  al- 
lowance and  payment  of  such  claims,  under 
Burns'  Rev.  St.  1901,  §  7S4Sc — Kimble  V. 
Board  of  Com'rs  (Ind.  App.)  66  N.  E.  1023. 
Burns'  Rev.  St.  1901,  §  5594,  providing  for 
the  recovery  in  addition  to  moneys  misap- 
propriated by  county  officers,  of  attorney's 
fees  and  necessary  expenses,  does  not  apply 
to  a  tax  payer's  action  against  county  com- 
missioners to  recover  funds  misappropriated 
on  illegal  claims  allowed — Id. 

SO.     Etsell  V.  Knight    (Wis.)    94   N.  W.  290. 

81,  82.  Kimble  v.  Board  of  Com'rs  (Ind. 
App.)    66    N.    B.    1023. 

83.  Rogers  v.  Board  of  Sup'rs,  77  App. 
Div.    (N.    Y.)    501. 

84.  County  warrants  which  do  not  state 
on  their  face  the  purpose  for  which  they 
were  drawn  and  when  the  claim  accrued 
are  void — Bingham  County  v.  First  Nat 
Bank   (C.   C.   A.)    122   Fed.   16. 

85.  As  an  objection  that  they  did  not  bear 
the  seal — Dakota  County  v.  Bartlett  (Neb.) 
;)3  N.   W.   192. 

86.  Walling  V.  Lummis  (S.  D.)  92  N.  W 
1063. 

87.  Neb.    Comp.    St.    1901,    c.    18,    art.    1 

Bacon    v.    Dawes    County    (Neb.)     92    N.    W 
313. 

88.  Bingham  County  v.  First  Nat.  Bank 
(C.  C.  A.)    122  Fed.   16. 


824 


OOUKTS. 


§   1 


warrants  estop  the  county  from  questioning  their  validity/'  The  acceptance  of  a 
county  warrant  which  contains  a  statement  that  it  was  in  full  settlement  precludes 
claimant  from  recovering  on  the  disallowed  balance  of  his  claim/"  To  render 
transfer  of  a  county  warrant  valid,  the  assignment  must  be  in  the  form  prescribed  by 
statute." 

The  fund  particularly  charged  with  the  payment  of  a  warrant  alone  is  liable, 
and  it  cannot  be  charged  against  any  other  fund/^  Payment  of  warrants  by  check 
dra^vn  on  an  insolvent  bank  does  not  discharge  the  comity's  liability/* 

C0URTS.1 

§  1.  Creation,  change,  and  alteration. — The  legislature  unless  restricted  has 
power  to  establish  courts  other  than  those  provided  in  the  constitution,^  especially 
those  of  inferior  jurisdiction,*  or  to  increase  the  number  of  judicial  districts  ;*  but 
in  the  absence  of  constitutional  warrant,  the  legislature  cannot  change  the  constitu- 
tional classification  of  the  state  courts/ 

In  the  absence  of  such  an  intent  it  will  not  be  presumed  that  an  act  conferring 
upon  a  new  tribunal  the  greater  part  of  the  jurisdiction  of  an  inferior  court  abolish- 
ed the  latter/ 

§  2.  Officers  and  instrumentalities  of  courts.'' — Bailiffs  and  criers  are  officers 
of  the  court/ 

§  3.  Places,  terms,  and  sessions  of  courts. — Courts  of  equity  in  absence  of  a 
contrary  statute  are  always  open/ 

Generally,  the  time  of  the  commencement  of  the  term  is  fixed  by  statute,*"  and 
a  statute  fixing  the  term  of  court  and  limiting  it  to  a  court  of  a  particular  district 
is  valid/*     A  term  continues  until  the  succeeding  term  as  to  a  pending  motion,*^ 


89.  False  indorsement  by  the  county 
board  of  the  amount  of  the  levy  and  ex- 
penditures on  a  warrant  against  a  particular 
fund  will  not  estop  the  county  from  assert- 
ing invalidity  of  the  warrant  because  be- 
yond the  statutory  limit.  The  purpose  of 
the  statute  is  to  guard  against  overdrawing 
of  warrants  against  the  fund — National  Life 
Ins.  Co.  V.  Dawes  County  (Neb.)  93  N.  W. 
187. 

90.  Com'rs  of  Garfield  County  v.  Beards- 
ley    (Colo.   App.)    70   Pac.   155. 

91.  Mere  assignment  by  indorsement  is 
Insufficient — State  v.  Harrison  (Mo.  App.)  72 
S.  W.   469. 

92.  There  being  no  stenographers'  fund. 
the  court  stenographer's  salary  cannot  be 
paid  out  of  any  other  fund.  Arkansas  act 
March  16,  1897 — Dunn  v.  Ouachita  Valley 
Bank  (Ark.)  71  S.  "W.  265.  A  warrant 
against  the  "advertising  fund"  will  be  con- 
sidered as  drawn  against  the  general  fund — 
Dakota  County  v.  Bartlett  (Neb.)  93  N.  W. 
192. 

93.  Green  v.  Custer  Co.  (Idaho)  71  Pac. 
115. 

1.  The  establishment,  organization,  con- 
stituency, and  the  general  procedure  of  courts 
only  will  be  treated  herein;  for  questions  of 
Jurisdiction  see  "Jurisdiction,"  rules  of  deci- 
sion by  precedent  see  "Stare  Decisis"  and  for 
practice  governing  in  particular  actions  see 
the  specific  heads. 

2.  P.  L.  1898.  p.  866,  empowering  quarter 
sessions  to  transmit  indictments  to  oyer  and 
terminer  which  It  has  no  jurisdiction  to  try 
is  valid — State  v.  Gruff,  68  N.  J.  Law,  287.     It 


is  within  the  power  of  the  legislature  to 
confer  on  the  judge  of  the  common  pleas 
■^ourt  the  power  to  hold  a  term  of  oyer  and 
terminer.  Pub.  Laws  1898,  p.  867.  §  3,  is  valid 
— State  v.  Taylor,  68  N.  J.  Law.  276. 

3.  Act  1901,  creating  municipal  courts  is 
valid — State  v.  Howell    (Utah)    72  Pac.   187. 

4.  Act  March  12,  1903,  increa.sing  the  num- 
ber of  judges  in  the  third  judicial  district — 
State  V.  Lewis   (Utah)   72  Pac.  388. 

.5.     Love  V.  Liddle  (Utah)   72  Pac.  185. 

6.  Laws  1899,  c.  127,  p.  250.  creating  the 
"ity  court  in  Ft.  Scott  did  not  abolish  the 
office  of  police  judge — City  of  Ft.  Scott  v. 
Slater    (Kan.)    72    Pac.   550. 

7.  Rights,  duties  and  liabilities  of  partic- 
ular officers,  see  Attorney  and  Client,  Clerks 
of  Court,  Judges,  Justices  of  the  Peace, 
Stenographers. 

8.  And  are  entitled  to  per  diem  compensa- 
tion on  days  when  it  was  adjourned  by  writ- 
ten order  of  the  federal  circuit  court — Unit- 
ed States  V.  McCabe,  122  Fed.  653. 

9.  To  order  sale  of  infants'  estates  with- 
in equity  jurisdiction — Webb  v.  Hicks  (Ga.) 
43  S.  E.  738;  Mitchell  v.  Turner  (Ga.)  44  S.  E. 
17. 

10.  Indiana  Act  March  9,  1903,  did  not 
change  the  time  for  holding  court  in  Foun- 
tain county  circuit  until  the  beginning 
of  the  court  year  that  is  on  the  last  Monday 
of  August — Rabb  v.  McAdams  (Ind.)  67  N.  E. 
182.  Sufficiency  of  evidence  to  show  that 
court  did  not  convene  entitling  a  defendant 
in  a  criminal  proceeding  to  discharge — Farr 
V.  State.  135  Ala.  71. 

11.  111.  Act  May  15,  1903 — City  of  Mt.  Ver- 


§  1 


COVENANTS  FOR  TITLE. 


825 


or  for  the  correction  of  the  court's  minutes,^^  or  for  the  purpose  of  entry  of  a  judg- 
ment on  verdict  rendered  at  the  preceding  term."  Appelhite  courts  will  take  ju- 
dicial notice  of  the  terms  of  the  trial  courts/^  but  not  of  adjournments;^®  but  any 
court  may  take  judicial  notice  of  its  own  terms,  adjournments,  and  vacations.*' 

In  the  absence  of  statute,  a  court  has  no  power  to  call  a  special  term  thereof,*' 
and  a  term  beginning  on  the  day  to  which  the  regular  term  had  been  adjourned  is 
not  a  special  term.***  An  additional  session  may  be  held  by  calling  on  another 
judge  of  the  same  court.^" 

Except  in  a  few  instances  usually  statutory,  the  functions  of  a  court  can  be  ex- 
ercised only  when  it  is  in  session.-* 

§  4.  Conduct  and  regulation  of  business.^- — Courts  have  power  to  make  rea- 
sonable rules  governing  the  procedure  before  them,^'  and  if  not  in  violation  of  law 
and  made  of  record  are  binding,^*  on  both  court  and  suitors.^'  In  federal  courts, 
the  rules  of  procedure  adopted  by  state  courts  must  be  pleaded  and  proved.^"  The 
existence  of  rules  must  be  proved  by  the  record  and  nonexistence  by  the  clerk's  tes- 
timony.2'  A  court  may,  to  prevent  disturbance  of  the  court's  business,  prevent 
traffic  on  a  street  running  by  the  room  dedicated  to  court  purposes.^® 

COVENANTS  FOR  TITLE. 

§  1.  Persons  and  estates  benefitted  or  bound. — Covenants  running  with  the 
land  cannot  be  held  separately  from  the  title.^*  A  covenant  against  incumbrances 
does  not  run  with  the  land.^*  Only  those  who  could  have  vouched  in  an  action  real 
can  sue  on  a  covenant.'* 


non   V.   Evans   &  H.   Fire   Brick   Co.    (111.)    68 
N.   E.    208. 

13.  Walker  v.  Moser  (C.  C.  A.)  117  Fed. 
230.  If  not  ordered  to  be  heard  in  vacation 
— Wood  V.  Wiley  Mfg.  Co.  (Ga.)  43  S.  E. 
983. 

13.  Baum  V.  Corslcana  Nat.  Bank  (Tex. 
Civ.   App.)   75  S.  W.  863. 

14.  Walker  v.  Moser  (C.  C.  A.)  117  Fed. 
230;  Jones  v.  Miller  (Neb.)  92  N.  W.  201, 

15.  Lanckton  v.  United  States,  IS  App. 
D.  C.  348;  Hadley  v.  Bernero,  97  Mo.  App. 
314;  Emery  v.  League  (Tex.  Civ.  App.)  72  S. 
W.   603. 

16.  17.  Hadley  v.  Bernero,  97  Mo.  App. 
314. 

18.  Under  Laws  1891,  p.  142,  c.  83  the  cir- 
cuit court  of  Shawnee  county  has  power — 
Durand  v.  Higgins  (Kan.)   72  Pac.  567. 

19.  First  Nat.  Bank  v.  Abe  Block  &  Co. 
(Miss.)  33  So.  849. 

20.  Without  regard  to  the  disability  of 
the  requesting  judge — Bigcraft  v.  People,  30 
Colo.   298.   70   Pac.   417. 

21.  A  motion  fo  set  aside  a  verdict  in  a 
criminal  case  cannot  be  entertained  in  a  city 
court  during  vacation — Chapman  v.  State. 
116  Ga.  59o.  It  is  within  the  civil  district 
court's  power  to  make  its  terms  continuous 
for  the  trial  of  particular  actions — Succes- 
sion of  Hoyle.  109  La.  623.  After  adjourn- 
ment for  the  day  the  court  in  which  the 
prosecution  is  pending  may  take  a  bail  bond 
— State  V.  Eyermann,  172  Mo.  294.  Expro- 
priation proceedings  cannot  be  entertained  in 
vacation  by  the  district  court — State  v.  St. 
Paul,  109  La.  8.  A  decree  dismissing  a  bill 
can  only  be  entered  In  term  time  though  the 
motion  to  dismiss  may  be  heard  out  of  term 
— Cain  V.  City  of  Wyoming,  104  111.  App.  538. 


Certiorari  may  be  Issued  at  chambers  In  the 
lirst  department  of  the  supreme  court — Peo- 
ple V.  Stilllngs,  76  App.  Dlv.   (N.  T.)   143. 
23.     See   Records   for  judge's   minutes. 

23.  Hopper  v.  Mather,  104  111.  App.  309. 
A  rule  limiting  the  number  of  requests  to 
charge  each  party  is  entitled  to  present  to 
12  is  unreasonable — Chicago  City  Ry.  Co.  v. 
Sandusky.  198  111.  400.  Special  term  supreme 
court  rule  14  requiring  notice  of  sale  under 
execution  to  contain  diagram  of  the  property 
is  valid — Francis  v.  Watkins,  171  N.  Y.  682. 
A  rule  that  matter  not  denied  by  pleading 
shall  stand  as  admitted  is  valid — Easton 
Power  Co.  v.  Sterlingworth  Ry.  Supply  Co., 
22  Pa.  Super.  Ct.  538. 

24.  Hopper  v.  Mather,  104  111.  App.  309; 
State  v.  St.  Paul,  109  La.   8. 

25.  District  of  Columbia  v.  Roth,  18  App. 
D.  C.  547;  Klinesmith  v.  Van  Bramer,  104  111. 
App.  384;  Talty  v.  District  of  Columbia,  20 
App.  D.  C.   489. 

26.  Randall  v.  New  England  Order  of  Pro- 
tection, 118  Fed.  782. 

27.  Affidavit  of  counsel  of  non-existence 
of  rule  is  not  evidence  of  that  fact — Hughes 
V.   Humphreys,    102  111.    App.   194. 

28.  Ex  parte  City  of  Birmingham,  134  Ala. 
609,   59  L.  R.  A.  572. 

29.  Dalton  v.  Taliaferro,   101  111.  App.  592. 

30.  Sears  v.  Broady  (Neb.)  92  N.  W.  214; 
Water's  Estate  v.  Bagley  (Neb.)  92  N.  W 
637. 

31.  Smith  V.  Ingram,  130  N.  C.  100.  Sub- 
sequent grantees  without  warranty  may  sue 
on  a  warranty — Ravenal  v.  Ingram,  131  N.  C, 
549.  The  holder  of  a  contract  for  deed  can- 
not sue  on  a  warranty  to  his  vendor — Raven- 
al V.  Ingram,  131  N.  C.   549. 


826 


CREDITORS'   SUIT. 


§   1 


§  2.  Performance  or  hrcacli.  Seisin  and  rigid  to  convey. — The  covenantor 
mar  be  disseised  by  a  tax  deed.^^ 

Against  incumbrances. — An  easement  of  light  is  an  "incumbrance.'"'  Whether 
an  incumbrance  exists  is  to  be  determined  according  to  the  lex  rei  sitae.'*  An  un- 
confirmed assessment  for  local  improvements  is  not.'^ 

Warranty  and  quiet  enjoyment. — There  is  no  right  of  action  until  eviction,'® 
or  the  acquisition  of  paramount  title  to  avoid  it."  Actual  eviction  without  judicial 
action  is  sufficient,'^  and  judicial  without  actual  eviction  is  not  sufficient.'" 

§  3.  Enforcement  of  covenants. — The  declaration  must  allege  the  covenant,*" 
if  of  warranty,  and  eviction,*^  and  if  of  special  warranty  that  the  evictor  claimed  un- 
der the  covenantor.** 

Eeconveyance  in  suit  on  covenant  of  seisin  need  not  be  offered.*' 

Peculiar  value  of  property  from  which  plaintiff  was  evicted  may  be  shown.** 
The  measure  of  damage  for  breach  of  covenant  of  seisin  is  the  consideration  with 
interest  ;*^  for  breach  of  the  covenant  against  incumbrances,  it  is  the  difference  in 
the  value  of  the  premises  ;*•*  for  breach  of  the  covenant  of  warranty,  it  is  the  purchase 
price  in  case  of  eviction,*^  the  amount  paid  to  extinguish  the  paramount  title,*®  or 
the  damage  to  the  premises  where  the  warranty  is  broken  by  the  existence  of  an 
easement.*' 

CREDITORS'  STJIT.50 

§  1.  Nature  and  grounds  of  remedy  and  property  which  may  he  reached. — 
The  purpose  of  a  creditor's  bill  is  to  reach  assets  which  are  either  not  subject  to  levy 
or  have  been  fraudulently  conveyed.^^  A  judgment  at  law  for  the  debt  is  prereq- 
uisite,** as  is  the  insolvency  of  defendant.*'    The  property  to  be  subjected  must  be 


S2.  Koepke  v.  Winterfield  (Wis.)  92  N.  W. 
«37. 

33.  Denman  v.  Mentz,  63  N.  J.  Eq.  613. 
Facts  held  not  to  create  an  easement  which 
would  be  a  breach  of  the  covenant — Parley 
V.  Howard.  172  N.  Y.  628. 

34.  Dalton  v.  Taliaferro,  101  111.  App.  592. 
And  see  Smith  v.  Ingram,  132  N.  C.  959. 

35.  Real  Estate  Corp.  v.  Harper,  174  N.  Y. 
123. 

36.  Boulden  v.  Wood,  96  Md.  332;  Merrill 
V.  Suing  (Neb.)  92  N.  W.  618. 

37.  Leet  V.  Gratz,  92  Mo.  App.  422. 

38.  Covenantee  quit  possession  after  sale 
under  paramount  mortgage — Harr  v.  Shaf- 
fer.   52   W.   Va.   207. 

39.  Ravenal  v.  Ingram,  131  N.  C.  549; 
Pharr  v.  Gall,  108  La.  307.  Even  an  adverse 
judsrment  in  ejectment  is  not  an  eviction — 
Lundgren  v.  Kerkow  (Neb.)  95  N.  W.  501. 
But  it  has  been  held  that  an  injunction  pre- 
venting beneficial  use  is  a  constructive  evic- 
tion— Ensign  v.  Colt,  75  Conn.  111. 

40.  Gano  v.   Green,   116  Ga.   22. 

41.  Sears  v.  Broady  (Neb.)  92  N.  W.  214. 

43.  Revenal  v.  Ingram,  131  N.  C.  549. 

4.t.  Koepke  V.  Winterfield  (Wis.)  92  N.  W. 
437. 

44.  Louisville  Public  Warehouse  Co.  v. 
James,  24  Ky.  L.  R.  1266,  70  S.  W.  1046. 

45.  Rules  for  computation  when  covenant 
Is  broken  as  to  part  of  land  stated — Conk- 
lln  v.  Hancock,  67  Ohio  St.  455.  "^^here  the 
tracts  are  severable  the  measure  of  damages 
Is  the  consideration  paid  for  that  as  to  which 
the  covenant  is  broken — Llovd  v.  Sandusky 
(111.)   68  N.  E.  154. 

46.  Herb  v.  Metropolitan  Hospital  &  Dis- 


pensary, 80  App.  Div.  (N.  Y.)  145.  Where 
the  incumbrance  is  an  outstanding  lease,  the 
measure  of  damages  is  the  rental  value  of 
the  premises  for  its  term — J.  Wragg  &  Sons 
Co.  V.  Mead  (Iowa)   94  N.  W.  856. 

47.  Leet  v.  Gratz.  92  Mo.  App.  422;  West 
Coast  Mfg.  &  Inv.  Co.  v.  West  Coast  Imp. 
Co.   (Wash.)  72  Pac.  455. 

48.  Leet  v.  Gratz,  92  Mo.  App.  422.  Ex- 
penses in  defending  title  cannot  be  recov- 
ered unless  covenantor  was  notified  to  de- 
fend— Wiggins  v.  Pender,  132  N.  C.  628. 

49.  Louisville  Public  Warehouse  Co.  v. 
James.  24  Ky.  L.  R.  1266,  70  S.  W.  1046. 

50.  For  statutory  proceedings  in  aid  of 
execution  see  "Execution."  For  bills  by 
creditors  merely  to  set  aside  fraudulent  con- 
veyances,   see    "Fraudulent    Conveyances." 

51.  State  Bank  v.  Belk  (Neb.)  94  N.  W. 
617.  The  bill  does  not  lie  in  the  absence  of 
statute  to  reach  known  assets  subject  to 
levy  and  the  remedy  provided  by  Code  1886, 
§  3540  is  by  way  of  a  discovery  only  and  does 
not  authorize  a  bill  to  subject  known  assets 
— Henderson  v.  Hall.  134  Ala.  455.  One  pur- 
pose of  the  remedy  is  to  prevent  multiplicity 
of  suits  and  accordingly  the  existence  of  a 
legal  remedy  by  garnishment  is  no  bar — 
Benedict  v.  T.  L.  V.  Land  &  Cattle  Co. 
(Neb.)  92  N.  W.  210. 

53.  Ready  v.  Smith.  170  Mo.  163.  An 
award  of  arbitrators  has  been  deemed  a 
substitute — Sanborn  v.  Maxwell,  18  App.  D. 
C.  245.  Where  the  judgment  is  reversed  on 
appeal  the  creditors'  suit  must  fail — Kudrna 
V.  Ainsworth  (Neb.)  91  N.  W.  711.  A  trustee 
in  bankruptcy  may  sue  without  reduction  of 
creditors'  claims  to  Judgment — Hood  v.  Blair 


§  i 


CRIMINAL  LAW. 


827 


be3'ond  the  reach  of  execution,^*  and  must  not  be  speculative  in  its  character/''  or  in 
custodia  legis.®* 

§  2.     Procedure. — Holdings  as  to  limitations  are  found  in  the  note." 

Jurisdiction  of  the  court  rendering  complainant's  judgment  need  not  be  alleg- 
ed.'* 

Return  of  nulla  bona  is  prima  facie  evidence  that  legal  remedy  is  exhausted," 
and  statutes  sometimes  prescribe  what  shall  be  a  prima  facie  case  on  the  entire  bill."" 

A  receiver  may  be  appointed. ^^ 

The  bill  should  be  dismissed  as  to  parties  not  shown  to  be  liable.®*  A  personal 
judgment  against  the  debtor's  grantees  is  unauthorized.®^ 

Complainant  is  not  entitled  to  a  preference  in  the  assets  discovered.'* 


CRIMINAL  LAW. 


i  1.  Elements   of   Crime. 

§  2.  Defenses. 

S  3.  Capncity  to  Commit  Crime. 

S  4.  Parties  in   Crimes. 


§  5.     Former       Adjiiilicitlon       and     Second 
Jeopardy. 

§   G.      Pnnl.shmeut   of   Crime. 

§  7.     Risfats  iu  Property  Subject  of  Crime. 


This  article  is  intended  to  embrace  only  the  general  substantive  law  of  crimes. 
Matters  of  general  criminal  procedure  are  treated  in  an  article,  "Arrest  and  Binding 
Over,"  covering  the  procedure  to  the  time  of  indictment,  and  one  on  "Indictment 
and  Prosecution"  embracing  the  procedure  from  indictment  to  final  judgment. 
Matters  of  law  and  procedure  peculiar  to  particular  crimes  are  treated  under  titles 
expressive  of  the  names  of  such  crimes  where  they  have  well  recognized  names  or, 
where  they  are  violations  of  mere  statutory  regulations,  under  titles  dealing  with  the 
subject-matter  involved. 

§  1.  Elements  of  crime.  Sources  of  the  criminal  law. — In  most  of  the  states, 
the  common  law  of  crimes  is  now  abolished.®^  The  statute  creating  an  offense  must 
have  been  in  effect  before  the  criminal  act  in  question  or  it  will  be  ex  post  facto.®® 


state  Bank  (Neb.)  91  N.  W.  701.  The  in- 
debtedness of  a  defendant  to  the  judgment 
debtor  cannot  be  litigated  as  he  has  a  right 
to  a  jury  trial  thereon — Hudson  v.  Wood, 
119  Fed.   764. 

53.  Oppenheimer  v.  Collins,  115  Wis.  283. 
Trust  property  may  be  subjected  by  creditors 
of  the  beneficiary  though  he  was  not  insolv- 
ent when  the  trust  was  created — Burke  v. 
Tewksbury  (Neb.)  92  N.  W.  726.  Where  there 
has  been  an  assignment  for  the  benefit  of 
creditors,  creditors  can  sue  only  when  the 
assignee  fails  to  do  so — Cornell  v.  Suiter,  23 
Ohio  Circ.-R.  384. 

54.  Henderson  v.  Hall,  134  Ala.  455.  But 
see  Benedict  v.  T.  L.  V.  Land  &  Cattle  Co. 
(Neb.)  92  N.  W.  210  where  it  is  held  that  a 
remedy  by  garnishment  will  not  bar  the 
suit. 

55.  Contingent  remainder  cannot  be — 
Howbert  v.  Cawthorn  (Va.)  42  S.  E.  683.  A 
widow's  interest  in  the  rents  and  profits  of 
dower  lands  unassigned  may  be  reached — 
Muir  V.  Hodges,  116  Fed.  912.  The  interest 
of  the  beneficiary  In  a  trust  may  be — Kilham 
V.  Western  Bank  &  Safe  Deposit  Co.  (Colo.) 
70  Pac.  409;  Burke  v.  Tewksbury  (Neb.)  92  N. 
W.  726. 

5G.  Property  in  hands  of  executor — Wil- 
liams V.  Smith  (Wis.)   93  N.  W.  464. 

57.  For  general  doctrine  of  laches  see 
forthcoming  article  on  "Equity."  Limita- 
tions do  not  begin  to  run  until  the  recovery 
of  Judgment  against  defendant — Montgomery 
Iron  Works  v.  Capital  City  Ins.  Co.  (Ala.) 
?.i    So.    210.      Effect    to    suspend    running    of 


limitations  on  claims  embraced  in  suit — 
Gunnell's  Adm'rs  v.  Dixon's  Adm'r  (Va.)  43 
S.  E.  340;  Woods  v.  Douglass,  52  W.  Va. 
517.  Two  years'  delay  held  fatal — Ready  v. 
Smith,   170  Mo.  163. 

58.  Kilham  v.  Western  Bank  &  Safe  De- 
posit Co.   (Colo.)   70  Pac.  409. 

59.  Evidence  held  not  to  overcome  prima 
facie  case  so  made — Oppenheimer  v.  Collins, 
115  Wis.  283.  There  must  be  evidence  of  the 
judgment  and  execution — Hagek  v.  Pracheil 
(Neb.)    95  N.  W.   35. 

GO.  Comp.  Laws,  §  10203  makes  proof  of 
judgment,  execution  and  return  thereof,  and 
a  conveyance  by  judgment  debtor  a  prima 
facie  case,  and  this  statute  is  held  due  pro- 
cess of  law — Crane  v.  Waldron  (Mich.)  94 
N.   W.  593. 

61.  The  fact  that  complainant  appeals  be- 
cause part  of  the  relief  demanded  is  denied 
will  not  prevent  the  appointment  of  a  re- 
ceiver to  protect  that  which  Is  granted — 
Benedict  v.  T.  L.  V.  Land  &  Cattle  Co. 
(Neb.)   94  N.  W.  962. 

63.  As  to  purchasers  in  good  faith,  but 
not  as  to  parties  shown  to  have  received 
property  who  fail  to  answer — Benedict  v.  T. 
L.  V.  Land  &  Cattle  Co.    (Neb.)   92  N.  W.   2I0. 

63.  Oppenheimer  v.  Collins,  115  Wis.  283. 

64.  Moore  v.  Parker  Drug  Co.,  135  Ala. 
287. 

65.  But  the  common  law  may  be  resorted 
to  for  the  definition  of  a  crime  forbidden  by 
name — State  v.  De  Wolfe  (Neb.)  93  N.  W. 
746.  The  common  law  as  to  capacity  to  com- 
mit crime  obtains  In  the  absence  of  statute — 


828 


CAPACITY. 


§  3 


Criminal  intent. — Guilty  intent  is  essential  only  when  made  so  by  the  statute.*^ 
Altcmpts. — Some  act,  other  than  mere  preparation,  is  essential  to  an  attempt.^" 
Felonies  and  misdemeanors. — Attempt  to  obtain  money  under  false  pretenses  is 
a  felony."'-'     Malicious  mischief  is  a  misdemeanor/*'  as  is  petit  larceny.^^ 

§  2.  Defenses.''^ — One  may,  in  general,  defend  his  person  or  property  with  all 
needful  force.'^^  Mistake  of  fact  is  a  defense  only  where  the  facts  as  believed  would 
make  the  act  wholly  lawful.^*  Personal  convictions  against  policy  of  the  law  are  no 
defense,"  nor  is  command  of  a  superior.""  Consent  of  party  aggrieved  is,  with  few 
exceptions,  a  defense  only  to  crimes  involving  taking  of  property.^^  Testimony 
against  co-defendant  gives  no  immunity.''*  Pendency  of  an  injunction  to  restrain 
enforcement  of  the  statute  is  no  defense.'^ 

§  3.  Capacity  to  commit  crime. — The  admissibility  and  sufficiency  of  evidence 
of  insanity  is  treated  elsewhere.*"  Ability  to  distinguish  between  right  and  wrong 
as  to  the  act  in  question  is  the  test,*^  and  "irresistible  impulse"  is  not  recognized,*'- 
but  the  insanity  need  not  be  permanent. ^^  Voluntary  intoxication  is  no  defense,*^ 
though  delirium  tremens  or  insanity  induced  by  alcoholism  is,*^  and  intoxication 


Davis  V.  state  (Fla.)  32  So.  S22.  Statute  held 
to  abolish  common  law  offense  of  obstruct- 
ing highway — Eaton  v.  People,  30  Colo.  345, 
70  Pac.  426. 

66.  See  Constitutional  Law. 

67.  State  V.  Keller  (Idaho)  70  Pac.  1051. 
Criminal  intent  is  essential  to  arson — State 
V.  Jones  (Del.)  53  Atl.  858.  Escape — State  v. 
Daly,  41  Or.  515,  70  Pac.  706.  Larceny — Long 
V.  State  (Fla.)  32  So.  870;  People  v.  Hoag- 
land,  138  Cal.  338.  71  Pac.  359;  State  v. 
Kavanaugh  (Del.)  53  Atl.  335;  State  v.  Palm- 
er (Del.)  53  Atl.  359;  State  v.  Riggs  (Idaho) 
70  Pac.  947;  People  v.  Wnlburn  (Midi.)  92 
N.  "W.  494.  Receiving  stolen  goods — Golds- 
berry  V.  State  (Neb.)  92  N.  W.  006.  And  to 
forgery — State  v.  Bjornaas  (Minn.)  92  N.  W 
980.  But  belief  in  right  to  make  alterations 
must  be  based  on  rea.sonable  grovind.s — 
Towles  V.  United  States,  19  App.  D.  C.  471. 
And  a  belief  that  the  person  wliose  name 
was  forged  would  ratify  the  act  is  imma- 
terial— People  V.  Weaver.  SI  A,.p.  Div.  (N. 
Y.)  567.  But  not  to  embezzlement — People  v. 
Jackson,  138  Cal.  462,  71  Pac.  566.  Nor  to 
negligent  permitting  of  escape  by  jailor- 
Lynch  V.  Commonwealth.  24  Ky.  L.  R.  2180, 
73  S.  W.  745.  Abandonment  of  intent  alter 
breaking  no  defense  to  burglary — Ragland 
V.  State  (Ark.)  70  S.  W.  1039;  V^^alker  v. 
State  (Fla.)  32  So.  954.  Intent  to  properly 
criticise  public  officer  as  defense  to  prosecu- 
tion for  libel — Commonwealth  v.  Scouton,  20 
Pa.  Super.  Ct.  503.  Intent  may  be  inferred 
from  circumstances — State  v.  Jones  (l-el.) 
53  Atl.  85S.  The  motive  is  immaterial — State 
V.  Crabtree.  170  Mo.  642.  Malice  is  essential 
to   arson — Boone  v.   State    (Miss.)    33   So.   172. 

68.  Groves  v.  State,  116  Ga.  516.  Dis- 
charging a  pistol  into  a  room  where  a  per- 
son was  believed  to  be  is  an  attempt  to  kill 
though  he  was  not  In  the  room — State  v. 
Mitchell.  170  Mo.  633.  Going  to  a  building 
with  intent  to  break  and  enter  is  an  attempt 
to  commit  burglary — People  v.  Sullivan,  173 
N.  y.  122. 

60.  A  penalty  not  to  exceed  five  years  in 
the  penitentiary  is  provided  by  statute  for 
the  completed  offense  and  by  Rev.  St.  §  2360 
the  penalty  for  an  attempt  is  not  to  exceed 
one-half  of  that  for  the  completed  offense  — 
State  V.  Scroggs,  170  Mo.  153. 

70.     State  V.  JVIcLain,   92  Mo.   App.    456. 


People   V.   Stein,   80  App.  Dlv.   (N.  T.) 


71. 

357. 

72.  Effect  of  general  amnesty  law — State 
V.  Eby,  170  Mo.  497. 

73.  See  "Assault  and  Battery";  "Homi- 
cide." Preventing  entry  without  search 
warrant  not  obstruction  of  justice — Neifeld 
V.  State,  23  Ohio  Circ.  R.  246.  Driving  tres- 
l^assing  cattle  from  premises — Alexander  v. 
State  (Tex.  Cr.  App.)  70  S.  W.  425. 

74.  Belief  that  a  child  was  over  the  age 
of  consent  no  defense  to  prosecution  for 
carnal  knowledge — Smith  v.  State  (Tex.  Cr. 
App.)  73  S.  W.  401.  Request  of  abducted  fe- 
male no  defense — Griffin  v.  State  (Tenn.)  70 
S.  W.  61.  Misinformation  as  to  title  ex- 
cuses trespass — Kimmons  v.  State  (Tex.  Cr 
App.)  71  S.  W.  283.  Belief  in  right  to  alter 
instrument  or  sign  another's  name  must  be 
based  on  reasonable  grounds — Towles  v. 
United  States.  19  App.  D.  C.  471;  People  v. 
Weaver,   81  App.   Div.    (N.  Y.)    567. 

75.  Individual  belief  against  vaccination 
no  justification  for  failure  to  obey  health 
regulation — Commonwealth  v.  Pear  (Mass.) 
fi6  N.  E.  719. 

7G.  Robbery — Thomas  v.  State.  134  Ala. 
126. 

77.  Consent  of  owner  is  a  defense  to  lar- 
ceny— Lowe  V.  State  (Fla.)  32  So.  956;  Tyler 
V.  State  (Tex.  Cr.  App.)  70  S.  W.  750.  But  see 
State  V.  Meldrum,  41  Or.  380,  70  Pac.  526. 
Purchase  of  the  property  after  the  larceny 
is  not — Landreth  v.  State  (Tex.  Cr.  App.)  70 
S.   W.   758. 

78.  Martin  v.  State,  136  Ala.  32. 

79.  State  V.  Keller   (Idaho)   70  Pac.  1051. 
SO.     See  Indictment  and  Prosecution. 

.SI.  State  V.  Kavanaugh  (Del.)  53  Atl.  335; 
Davis  V.  State  (Fla.)  32  So.  822;  Lee  v.  State. 
116   Ga.   563. 

S3.  Davis  V.  State  (Fla.)  32  So.  822;  Mc- 
Carty  v.  Commonwealth,  24  Ky.  L.  R.  1427. 
71  S.  W.  656.  Kleptomania — Lowe  v.  State 
(Tex.  Cr.  App.)    70  S.   W.   206. 

S.l.  People  v.  Ford,  138  Cal.  140,  70  Pac. 
1075. 

84.  Fielding  v.  State.  135  Ala.  56;  Lanck- 
ton  V.  United  States.  18  App.  D.  C.  348;  State 
V.  Ford  (S.  D.)  92  N.  W.  18;  Wright  v.  Com- 
monwealth. 24  Ky.  L.  R.  1838,  72  S.  W.  340. 

85.  State  v.  Kavanaugh  (Del.)  63  Atl. 
335. 


PUNISHMENT. 


829 


incapacitating  one  from  forming  a  specific  intent  prevents  a  conviction  if  an  offense 
to  which  that  intent  is  essential.^® 

§  4.  Parties  in  crimes. — All  the  parties  to  a  misdemeanor  are  principals.*^ 
Presence  at  the  commission  of  a  crime  is  essential  to  constitute  one  a  principal.^* 
One  present  aiding  and  abetting  is  a  principal.^*  An  accessory  after  the  fact  must 
have  acted  with  knowledge  of  the  crime.®"  There  may  be  an  accessory  before  the 
fact  to  manslaughter."^  The  common-law  distinctions  as  to  principals  and  acces- 
sories are  abolished  in  many  states.*^ 

§  5.  Former  adjudication  and  second  jeopardy. — There  is  no  jeopardy  where 
the  indictment  is  dismissed  without  a  trial,"-"'  or  where  the  trial  is  abortive,"*  or 
where  the  court  had  no  jurisdiction.*"*  A  finding  on  a  plea  in  bar  which  was  subse- 
quently set  aside,""  or  a  conviction  of  an  included  offense,  reversed  on  appeal,  does 
not  preclude  a  retrial."^  The  offenses  must  have  been  so  far  identical  that  a  con- 
viction of  one  might  have  been  had  on  an  indictment  for  the  other."^ 

§  6.  Punishment  of  crime. — Validity  of  various  statutes  relating  to  punish- 
ment is  considered  in  the  note."" 

Extent  of  imprisonment. — Punishment  imposed  must  not  exceed  the  statutory 
limit.^     If  execulion  of  sentence  is  legally  suspended,  the  term  is  computed  from 


86.  state  V.  Kavanaiigh  (Del.)  53  Atl. 
.^35;  State  v.  Davis,  52  W.  Va.  224.  But  see 
Commonwealth  v.  Dudash,  204  Pa.  124;  State 
V.  Pasnau   (Iowa)    92  N.  W.  GS2. 

87.  State  V.  Mcl^ain.   92  Mo.  App.  456. 

88.  Mitchell  v.  State  (Tex.  Cr.  App.)  70 
S.  W.  208;  McCulloh  v.  State  (Tex.  Cr.  App.) 
71  S.  W.  278.  But  one  who  instigated  the 
iiffense  and  was  near  the  scene  of  the  crime 
may  be  convicted  as  principal — Martin  v. 
State   (Tex.   Cr.  App.)    70  S.  W.   973. 

89.  Jahnke  v.  State  (Neb.)  94  N.  W.  158; 
Greene  v.  State  (^rk.)  70  S.  W.  1038.  One 
present  and  abetting  is  a  principal  though 
he  did  not  assist — ^State  v.  Palmer  (Del.)  53 
Atl.  359.  One  who  stands  outside  and  re- 
ceives the  goods  from  his  confederate  w^ho 
broke  and  entered  a  house  to  steal  them  is 
guilty  of  burglary — State  v.  Boysen,  30  Wash. 
338,  70  Pac.  740.  One  who  assisted  in  a  crime 
need  not  have  previously  instigated  it — By- 
num  V.  State  (Tex.  Cr.  App.)    72  S.   W.   844. 

90.  Whorley  v.  State  (Fla.)   33  So.  849. 

91.  Mathis  v.  State  (Fla.)  34  So.  287. 

92.  Jahnke  v.  State  (Neb.)  94  N.  W.  158. 
One  who  procured  and  advised  the  commis- 
sion of  a  crime  is  guilty  as  principal  where 
the  distinction  between  principals  and  ac- 
cessories is  abolished — Pearce  v.  Territory 
(C.  C.  A.)    118   Fed.    425. 

93.  Before  trial — State  v.  Taylor,  171  Mo. 
465;  State  v.  Lewis  (Wash.)  71  Pac.  778. 
After  impannelling  jury  but  before  evidence 
Is  introduced — State  v.  Holton,  88  Minn,  171. 
Two  informations  for  the  same  offense  may 
be   filed — State  v.   Vinso,   171    Mo.   576. 

94.  Jury  discharged  for  illness  of  a  Juror 
— People  v.  Smith.  172  N.  Y.  210.  Disagree- 
ment— Dreyer  v.  Illinois,  187  U.  S.  71.  Dis- 
charge on  holiday  for  failure  to  agree — 
State  v.  Lewis    (Wash.)    72   Pac.   121, 

93.  Wrong  venue — State  v.  Bacon,  170  Mo. 
161, 

96.  State  V,   Ellsworth,   131    N.   C.   773. 

97.  People  V.  McFarlane,  138  Cal.  481,  71 
Puc.  568,  72  Pac.  48;  People  v.  Wheeler,  79 
App.  Div.  (N.  Y.)  396;  State  v,  Balsley,  159 
Ind.  395. 

98.  Commonwealth    v,     Campbell,     22     Pa, 


Super.  Ct.  98.  The  following  have  been  held 
identical:  Bigamous  marriage  with  "Gussie 
S''  and  "Bessie  S" — Gully  v.  State,  116  Ga, 
.527.  Affray  and  assault  with  intent  to  kill — 
Jackson  v.  State,  136  Ala.  96.  Failure  to 
reconstruct  parts  of  a  public  road  and  fail- 
ure to  reconstruct  the  whole  road — Common- 
wealth v.  Allegheny  Valley  Ry.  Co.,  21  Pa. 
Super.  Ct.  188.  Arson  of  building  within 
curtilage  and  of  same  building  without  men- 
tion of  curtilage — S'ate  v.  Switzer,  65  S.  C. 
187.  Abandoning  wife  and  failure  to  provide 
for  her — State  v.  Miller,  90  Mo.  App.  131.  The 
following  have  been  held  not  identical: 
Burglary  and  receiving  stolen  goods — Pat  v. 
State,  116  Ga.  92.  Using  vulgar  language  in 
presence  of  female  and  using  abusive  lan- 
guage— Mcintosh  V.  State.  116  Ga.  543.  Sales 
of  different  uninspected  packages  of  beer — 
State  V.  Broeder,  90  Mo.  App.  169.  Gaming 
at  different  times  on  the  same  day — Miller 
V.   State   (Tex.   Cr.  App.)   72  S.  W.   856. 

99.  Indeterminate  sentence  act  not  bad 
for  uncertainty  nor  does  it  encroach  on 
executive  function — People  v.  Warden  of  Sing 
Sing,  39  Misc.  (N.  Y.)  113.  Indeterminate 
sentence  law  is  due  process  of  law — Dreyer 
V.  Illinois.  187  U.  S.  71;  Shular  v.  State  (Ind.) 
66  N.  E.  746.  A  fine  based  on  amount  of 
embezzlement  in  addition  to  imprisonment  is 
not  double  punishment — Everson  v.  State 
(Neb.)  92  N.  W.  137.  The  fine  for  the  benefit 
of  the  victim  of  an  embezzlement  is  not  with- 
in Const.  Art.  8  §  5,  providing  that  fines  shall 
become  part  of  the  school  fund — Everson  v. 
State  (Neb.)  92  N.  W.  137.  Fines:.  The  legis- 
lature may  provide  for  the  disposition  of 
money  realized  from  fines — Lloyd  v.  Dollisin. 
23  Ohio  Circ.  R.  571.  The  act  authorizing 
w^orkhouse  sentences  is  not  repealed  by  Act 
June  26,  1895,  providing  for  work  about 
premises  by  county  jail  convicts — Common- 
wealth V.  Barton,  20  Pa.  Super.  Ct.  447. 

1.  Stark  V.  State  (Miss.)  33  So.  175. 
Where  a  completed  offense  is  punishable  by 
imprisonment  for  not  less  than  a  specified 
number  of  years,  with  no  limit  as  to  this 
maximum,  and  an  attempt  Is  punishable  bj 
one-half   such   penalty    one   guilty   of   an   at 


830 


CURTESY— CUSTOMS  AND  USAGES. 


§  2 


date  of  incarceration.^  Imprisonment  until  fine  and  costs  are  paid  is  not  justified 
on  conviction  of  felony.^     Particular  punishments  held  proper  are  found  in  the  note.* 

Place  of  impinsonment.— Under  Act  Congress,  June  16,  1880,  one  convicted  in 
a  territory  may  by  contract  of  the  authorities  be  imprisoned  in  the  penitentiary  of 
another  state  or  territory.'  In  the  note  are  cases  as  to  place  of  imprisonment  of 
females  and  infants.® 

Second  offenses. — One  who  pleads  guilty  to  the  first  offense  cannot  attack  the  in- 
formation therefor.'' 

§  7.  Rights  in  property  the  subject  of  crime.— One  who  in  good  faith  received 
stolen  money  in  pajTnent  of  a  debt  cannot  be  compelled  to  repay  it.* 

CTJRTESY.o 

A  husband  has  curtesy  only  in  lands  of  which  the  wife  was  seized  during  her 
life.^"  Initiate  curtesy  rights  are  not  devested  by  statutory  abolition."  A  tenant 
by  the  curtesy  has  no  right  to  dispose  of  emblements."  Inchoate  curtesy  in  lands 
acquired  during  coverture  is  not  subject  to  execution.^'  Curtesy  vests  on  the  death 
of  the  wif  e.^* 

CUSTOMS  AND  USAGES. 

§  1.  General  requisites. — The  words  "custom"  and  "usage"  are  not  synony- 
mous.^^ Usage  must  be  uniform  and  reasonable,^*'  general,^^  and  consonant  with  the 
law."     As  to  duration,  there  is  a  distinction  between  custom  and  usage.^" 

§  2.  Application  to  contracts  and  other  dealings. — Usage  becomes  a  part  of 
contracts  on  the  theory  that  it  is  known  to  the  parties  and  enters  into  their  inten- 
tions,^" and  knowledge  of  the  usage  is  accordingly  essential.^^     Usage  cannot  con- 


tempt may  be  sentenced  for  a  definite  number 
of  years  though  one-half  of  the  possible  life 
Imprisonment  cannot  be  calculated — People 
V.  Burns,  138  Cal.  159,  69  Pac.  16,  70  Pac. 
1087.  The  court  has  no  power  at  a  subse- 
quent term  of  court  to  reduce  the  sentence 
— State  V.  Dalton  (Tenn.)  72  S.  W.  456. 

2.  In  re  Morse.  117  Fed.  763.  If  it  is  de- 
layed by  wrong-ful  act  of  a  ministerial  of- 
ficer the  computation  is  from  date  of  sen- 
tence— In  re  Jennings,   118   Fed.   479. 

3.  Smith  V.  State,  24  Ohio  Circ.  R.  140. 
Discharge  on  affidavit  in  forma  pauperis — ■ 
Ex  parte  Rodriguez  (Tex.  Cr.  App.)  73  S.  W. 
1050. 

4.  Death  penalty  held  proper  in  homicide 
case — Johnson  v.  State  (Tex.  Cr.  App.)  71  S. 
W.  25.  Ten  years  imprisonment  for  larceny 
held  not  excessive — State  v.  Williams  (Iowa) 
92  N.  "W.  652;  State  v.  Connor  (Iowa)  92  N. 
W.  654. 

5.  In  re  Terrill   (Kan.)    71   Pac.   589. 

6.  A  woman  cannot  be  committed  to  the 
state  reformatory  for  loitering  on  the  streets 
— People  V.  Davis.  80  App.  Div.  (N.  Y.)  448. 
St.  1895,  p.  122  did  not  give  the  superior 
judge  all  the  powers  theretofore  possessed 
by  a  magistrate  to  commit  infants  to  the 
school  of  industry — In  re  Peterson  (Cal.)  71 
Pac.  690.  An  infant  convicted  of  crime  must 
be  committed  to  a  reformatory  institution 
and  not  to  any  Institution  willing  to  receive 
him — People  v.  New  York  Catholic  Protec- 
tory, 38  Misc.   (N.  Y.)    660. 

7.  Latney  v.  United  States,  18  App.  D.  C. 
265. 

8.  Rankin  v.  Chase  Nat.  Bank,  188  U.  S. 
557. 


9.  Husband's  dower  under  statutes  abol- 
ishing curtesy  is  treated  in   "Dower." 

10.  Not  in  a  remainder  vesting  after  the 
wife's  death — Appeal   of  Ward,  75  Conn.   598. 

11.  Dillon  v.  Dillon,  24  Ky.  L.  R.  781.  69 
S.  W.  1099.  But  see  Hallyburton  v.  Slagle, 
132  N.  C.  947,  in  which  the  Constitution  of 
1S68  was  held  to  apply  to  a  marriage  before 
its  ratification. 

13.  Lease  giving  right  to  extract  oil  held 
void — Barnsdall  v.  Boley,  119  Fed.   191. 

13.  Rev.  St.  §  4339  so  provides — Ball  v. 
Woolfolk   (Mo.)    75  S.  W.  410. 

14.  McNeeley  v.  South  Penn.  Oil  Co.,  52  W. 
Va.    616. 

15.  16.  "Custom"  relates  to  places,  and 
"usage"  to  vocations — Currie  v.  Syndicate 
Des  Cultivators  Des  Oignons  a'  Fleur,  104 
111.  App.   165. 

17.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'  Fleur,  104  111.  App.  165:  John- 
ston v.  Parrott,  92  Mo.  App.  199. 

18.  McCurdy  v.  Alaska  &  C.  Commercial 
Co..  102  111.  App.  120;  De  Sola  v.  Pomares. 
119   Fed.   373. 

19.  Custom  is  established  by  immemorial 
practice;  usage  need  only  be  well  known 
and  generally  observed  In  the  business  to 
which  it  relates — Currie  v.  Syndicate  Des 
Cultivators  Des  Oignons  a'  Fleur,  104  111. 
App.  165.  It  Is  not  necessary  that  a  u=!nge 
should  have  been  in  existence  any  particu- 
lar length  of  time — Rastetter  v.  Reynolds 
(Ind.)   66  N.   E.   612. 

20.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'  Fleur,  104  111.  App.  165:  Mc- 
Curdy V.  Alaska  &  C.  Commercial  Co.,  102  III. 
App.    120.      Usage    to    pay   assignee    of    labor 


§  2 


CUSTOMS  LAW. 


831 


travene  the  contract,^^  but  may  explain  it.^'     Usage  may  also  be  considered  in  deter- 
mining the  question  of  negligence.^* 

§  3.  Pleading  and  proof. — Usage,  as  an  affirmative  defense,  must  be  specially 
pleaded.-*  Judicial  notice  will  be  taken  of  some  customs.-®  Testimony  that  a  cer- 
tain usage  exists  is  not  a  mere  opinion.^^  Existence  of  a  usage  is  for  the  jury;  its 
sufficiency  and  effect  for  the  court.^* 


CUSTOMS  LAW. 


§  1. 

§  2. 


Interpretation  and  Operation. 
Dutiable    Articles    and    Classilication. 


§  3. 
§  4. 


Administration    of    Customs    leaves. 
Violations  and  Consequences  Thereof. 


§  1.  Interpretation  and  operation  of  customs  laws  in  general. — The  act  in 
force  at  the  time  of  entry  of  importations  governs,-"  and  if  the  importation  is  in 
bond,  it  is  subject  to  duties  existing  at  the  time  of  the  deposit,  though  the  country 
of  export  subsequently  became  United  States  territory.'"  In  determining  the  ques- 
tion of  classification,  the  customs  laws  must  be  strictly  construed,'^  and  if  the  stat- 
ute is  open  to  construction  which  would  place  the  goods  as  well  on  the  free  list,  the 
course  most  favorable  to  the  importer  must  be  adopted.^^ 

§  2.  Dutiable  articles  and  classification  of  the  same. — The  particular  importa- 
tions and  the  cases  in  which  they  are  discussed  for  purposes  of  classification  only  are 
collected  in  the  footnotes.^' 


checks  held  to  create  Implied  contract — 
Bryan  v.  Brown,  3  Pen.  (Del.)  504.  Usage 
as  to  number  of  ounces  in  pound  lield  bind- 
ing— Baer  v.  Glaser,  90  Mo.  A  pp.  289.  Evi- 
dence as  to  what  constituted  a  "season" 
of  employment  lield  competent — Johnston- 
Woodbury  Hat  Co.  V.  Lightbody  (Colo.  App.) 
70  Pac.  957.  The  usage  of  the  port  is  to  be 
considered  in  determining  what  is  reason- 
able di-spatch — Donnell  v.  Amoskeag  Mfg. 
Co.   (C.  C.  A.)  118  Fed.  10. 

21.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'  Pleur,  104  111.  App.  165;  Con- 
sumers' Ice  Co.  V.  Jennings  (Va.)  42  S.  E. 
879;  Bixby  v.  Bruce  (Neb.)  95  N.  W.  34.  One 
is  not  presumed  to  have  knowledge  of  the 
usages  of  a  business  in  which  he  is  not  en- 
gaged— Great  Western  Elevator  Co.  v.  White 
(C.  C.  A.)  118  Fed.  406.  Circumstances  held 
to  show  knowledge  of  usage — Rastetter  v. 
Reynolds  (Ind.)  66  N.  E.  612;  Heyworth  v. 
Miller  Grain  Co.  (Mo.)  73  S.  W.  498.  Evi- 
dence insufficient  to  establish  notoriety  of 
usage  of  seaport — Bonanno  v.  Tweedie  Trad- 
ing Co.,  117  Fed.  991.  A  party  who  con- 
tracted in  ignorance  of  a  usage  cannot  take 
advantage  of  it — Hendricks  v.  Middlebrooks 
Co.   (Ga.)    44  S.  E.  835. 

23.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a'  Fleur,  104  111.  App.  165;  With- 
ers V.  Moore  (Cal.)  71  Pac.  697;  Mcintosh  v. 
Pendleton,  75  App.  Div.   (N.  Y.)  621. 

23.  Gehl  V.  Milwaukee  Produce  Co.  (Wis.) 
93  N.  W.  26;  Hayes  v.  Union  Mercantile  Co.. 
27  Mont.  264,  70  Pac.  975;  Richardson  v.  Corn- 
forth   (C.  C.  A.)   118  Fed.  325. 

24.  Employe  assumes  risk  of  customary 
methods — Olsen  v.  North  Pac.  Lumber  Co.  (C. 
C.  A.)  119  Fed.  77;  Carr  v.  St.  Clair  Tunnel 
Co.  (Mich.)  92  N.  W.  110.  Exceeding  cus- 
tomary speed  is  not  necessarily  negligence — 
Martin  v.  Chicago,  R.  I.  &  P.  R.  Co.  (Iowa)  91 
N.  W.  1034.  Customary  violation  of  rules  of 
employment  as  abrogating  them — Clark  v. 
Manhattan  Ry.  Co.,  77  App.  Div.  (N.  Y.)  284; 
Wright's  Adm'r  v.  Southern  Ry.  Co.  (Va.)  42 
S.  E.  913.  Duty  of  railroad  company  to  take 
pr-^cniitionB  at  place  not  crossing  customarily 


traveled  by  public — Bullard  v.  Southern  Ry. 
Co.,  116  Ga.  644;  Ringstaff  v.  Lancaster  &  C. 
Ry.  Co..  64  S.  C.  546. 

23.  McCurdy  v.  Alaska  &  C.  Commercial 
Co..  102   111.  App.  120. 

26.  Of  custom  to  Irrigate  from  natural 
streams — Crawford  Co.  v.  Hathaway  (Neb.) 
93   N.   W.  781. 

27.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Collins 
(Tex.  Civ.  App.)  71  S.  W.  560.  A  statement 
that  two  persons  were  married  according  to 
the  Indian  custom  is  a  mere  opinion — Henry 
V.   Taylor   (S.  D.)    93  N.  W.   641. 

28.  Currie  v.  Syndicate  Des  Cultivators 
Des  Oignons  a*  Fleur,  104  111.  App.  165. 

29.  Goods  are  not  dutiable  under  Act  1897, 
but  under  Act  1894,  where  tendered  for  con- 
sumption entry  before  four  o'clock  July  24, 
1897,  and  a  warehouse  entry  made  after  re- 
fusal of  the  former  and  on  .Tuly  26 — United 
States  v.  Perkins.  119  Fed.  384.  Ginger  ale 
in  bottles  Imported  when  tariff  act  1894  was 
in  effect,  is  not  subject  to  duty  for  corking, 
wiring,  labeling  or  capping  as  fixed  by  Act 
1S90 — West  V.  United  States,  119  Fed.  495. 

30.  As  goods  shipped  from  Porto  Rico— - 
Mosle  V.  Bidwell,  119  Fed.  480. 

31.  O.  G.  Hempstead  &  Son  v.  Thomas  (C. 
G.  A.)   122  Fed.  538. 

32.  O.  G.  Hempstead  &  Son  v.  Thomas  (C. 
C.   A.)    122   Fed.    538. 

33.  Boolis:  Books  printed  In  foreign  lan- 
guage— F.  H.  Petry  &  Co.  v.  United  States, 
121  Fed.  207.  Scientific  books — Macmillan 
Co.  V.  United  States,  116  Fed.  1018.  Books 
consigned  to  a  social  club,  not  entitled  to  free 
entry — United  States  v.  Vandiver,  122  Fed. 
740. 

Ciiemlcals  and  medicines.  Subacltate  of 
copper — United  States  v.  Petry,  116  Fed.  929. 
Sheep  dip — Wyman  v.  United  States,  118  Fed. 
202.  Commercial  carbonate  of  baryta — Ga- 
briel V.  United  States,  121  Fed.  208.  Albu- 
men— Merchants'  Despatch  Transp.  Co.  v. 
United  States,  121  Fed.  443.  Whiting  (Act 
1894,  par.  46) — United  States  v.  Tiffany,  117 
f<"ed.  367.  Salol — Schering  v.  United  States, 
119       Fed.       472.     Hyoscin       hydrobromnte — 


832 


CUSTOMS  LAW. 


§ 


§  3.  Administration  of  customs  laws;  liquidation  and  reliquidation  of  duties, 
remedies  and  procedure;  Uahillty  of  importer  or  oicner.^*  It  is  within  the  dis- 
cretion of  the  secretary  of  the  treasury  to  employ  inspectors  for  less  than  three  dol- 
lars jier  day.^* 

Duties  on  goods  in  bond  may  be  liquidated  at  any  time  after  entry  or  withdrawal 
for  consumption.^^  Drawback  on  goods  imported  and  entering  into  articles  manu- 
factured in  this  country  are  allowed  only  on  exportation  to  a  foreign  destination.^' 
In  the  exportation  of  metals  or  ores  imported  under  bond  for  smelting  or  refining 
purposes,  there  must  be  a  deduction  for  wastage  from  the  amount  imported  in  cal- 
culating the  product  of  the  refined  metal  required  to  be  exported.^* 

In  appraising  the  goods,  the  general  rule  is  to  reduce  standard  foreign  coins 
to  the  value  of  the  pure  metal  and  not  to  take  the  exchange  value,^*  and  the  general 


Schering:  v.  United  States.  119  Fed.  472. 
Chloral  hydrate — United  States  v.  Schering. 
119  Fed.  473.  Precipitated  chalk — I.  W.  Lyon 
&  Son  V.  United  States.   121   Fed.  204. 

Textiles  and  manufiictures  thereof.  Bands 
of  cotton  cloth  woven  in  widths  1  to  2^^ 
Inches  and  imported  in  pieces— Walter  H. 
Graef  &  Co.  v.  United  States.  120  Fed.  1015. 
Trimmings  c^\t  out  of  cotton  velvet  cloth  in 
different  designs  and  colors — Horstmann  v. 
United  States,  121  Fed.  147.  Garnitures  and 
hussar  sets  in  designs  of  silk  cord  and  braid 
to  be  used  on  dresses  sold  by  the  piece — 
Garrison,  Wright  &  Co.  v.  United  States.  121 
Fed.  149.  Silk  goods  four  to  twelve  inches 
wide  used  in  trimming  women's  hats — Rob- 
inson V.  United  States,  121  Fed.  204.  Narrow 
cotton  tape  used  for  covering  seams  of  un- 
derwear and  waists — A.  Steinhardt  &  Bro.  v. 
United  States.  121  Fed.  442.  Cotton  corsets 
trimmed  around  the  upper  border  with  cot- 
ton lace  edging — Wanamaker  v.  United 
States  (C.  C.  A.)  120  Fed.  16.  Braids  com- 
posed  of  india  rubber  and  cotton — Calhoun 
V.  United  States,  122  Fed.  894.  All  silk 
mourning  crepes  of  4-4  widths  in  lengths 
not  marked  for  cutting — Robinson  v.  United 
States.  122  Fed.  970.  Linoleum  in  colors — 
Hunter   v.   United   States.    121    Fed.    207. 

Asricnlttiral  products  and  provisions. 
Grass  piquets  consisting  of  stalks  of  oats  or 
wheat  and  grasses  dyed  to  imitate  their  nat- 
ural color,  mixed  with  leaves,  natural  and 
artificial,  bound  together  to  be  used  for  mil- 
linery purposes — Herman  &  Guinzeberg  v. 
United  States.  121  Fed.  201.  Canary  seed — 
United  States  v.  Nordlinger.  119  Fed.  478. 
Sago  flour — Littlejohn  v.  United  States,  119 
Fed.  483.  Tobacco  unsuitable  for  either 
wrapper  or  filler  purposes — Dominguez  Bros. 
V.  United  States.  122  Fed.  556.  Bleached 
wheat  stems  or  wheat  heads — Bayersdorfer 
&  Co.  V.  United  States,  122  Fed.  968.  Leg- 
horn citron — United  States  v.  Nordlinger  (C. 
C.  A.)  121  Fed.  690.  Currants  are  dutiable 
In  the  condition  imported — United  States  v. 
Reid  (C.  C.  A.)  120  Fed.  242.  Decayed  fruit 
— Lawder  v.  Stone.  187  U.  S.  281.  The  duty 
on  fruits  in  spirits  is  to  be  computed  on  all 
the  excess  alcohol  whether  absorbed  or  su- 
pernatant— Rheinstrom  v.  United  States,  lis 
Fed.   303. 

Slinerals  and  mannfactnres  thereof.  Fer- 
rochrome — Dana  v.  United  States.  116  Fed. 
933.  Tungsten  ore — O.  G.  Hempstead  &  Son 
V.  Thomas  (C.  C.  A.)  122  Fed.  538.  Crude 
hematite  ore — Francklyn  v.  United  States 
119  Fed.  470.  Thin  steel  strips  from  one  to 
six  inches  wide  and  in  lengths  of  one  hun- 
dred feet  or  more — Boker  v.  United  States, 
116    Fed.    1015.     Boiler    plate    trimmings    of 


various  dimensions  to  be  manufactured  into 
tacks,  trunk  irons,  etc. — United  States  v. 
.Milne.  117  Fed.  352.  Old  brass  cannons — 
Downing  v.  United  States  (C.  C.  A.)  122  Fed. 
445.  Surgical  scissors — O.  G.  Hempstead  & 
.Son  v.  United  States,  122  Fed.  752.  Electric 
-arbon  sticks — R.  F.  Downing  &  Co.  v.  United 
States,  120  Fed.  1014.  Asphaltum  mastic — 
Saacke  v.  United  States,  122  Fed.  895;  Ga- 
briel V.  United  States.  122  Fed.  896.  Fir© 
brick — "U'ing   v.   United    States.   119    Fed.    479. 

Gla.ssware.  Gauge  glass — Rogers  v.  Unit- 
ed States  (C.  C.  A.)  121  Fed.  546.  Museum 
or  preparation  jars  and  reagent  bottles — O. 
3.  Hempstead  &  Son  v.  United  States,  122 
Fed.  752. 

Precious  stones,  jewelry,  ornaments,  etc. 
Articles  as  paper  cutters,  etc..  made  wholly 
or  chiefly  of  agate  or  onyx — Hahn  v.  United 
States.  121  Fed.  152.  Pearl  imitations  in 
srlass  or  paste — Lorsch  v.  United  States,  119 
Fed.  476.  Shells  cleansed  from  animal  or 
vegetable  matter — Schoenemann  v.  United 
States  (C.  C.  A.)  119  Fed.  584.  Decorated 
and  ornamented  statuettes  made  from  plas- 
ter of  paris — T.  Bing  &  Co.'s  Successors  v. 
United  States.  121  Fed.  194.  Horsehair  braids 
carrying  spangles — Veit  Son  &  Co.  v.  United 
States.    121    Fed.    205. 

Spirits,  -wines  and  other  beverages.  Chi- 
nese spirituous  beverages— Kwong  Chin 
Chong  V.  United  States.  119  Fed.  383.  Char- 
treuse— Nicholas  v.  United  States,  122  Fed. 
892. 

Packaeres  and  coveringrs.  Glass  bottles — 
United  States  v.  Austin  (C.  C.  A.)  121  Fed. 
729;  Kwong  Chin  Chong  v.  L'nited  States. 
119  Fed.  383.  Boxes  containing  tobacco — 
Laverge  v.  United  States.  119  Fed.  481. 

34.  Complaint  in  an  action  to  recover  du- 
ties held  sufficient  to  show  defendant  charge- 
ible  with  the  duties — Abner  Doble  Co.  v. 
United  States   (C.  C.  A.)   119  Fed.  152. 

35.  The  statute  allowing  certain  inspect- 
ors not  exceeding  $3  per  day  does  not  apply 
to  persons  guarding  the  goods  at  night  to 
prevent  their  removal,  not  having  inspectors' 
Mowers — Johnston  v.  United  States,  37  Ct.  CI. 
:)09. 

36.  Act  1874,  §  21.  limiting  time  for  re- 
liquidation  to  one  year.  etc..  does  not  apply 
to  bonded  goods — Abner  Doble  Co.  v.  United 
States   (C.  C.  A.)  119  Fed.  152. 

37.  The  shipment  of  the  goods  by  a  for- 
eign vessel  to  be  consumed  in  transitu  is  not 
in  exportation — Swan  &  Finch  Co.  v.  United 

States,   37  Ct.   CI.   101. 

38.  In  re  Guggenheim  Smelting  Co.,  121 
red.  153. 

3J>.  United  States  v.  Beebe  (C.  C.  A.)  1  r2 
r>d.    762. 


§  1 


DAMAGES. 


833 


internal  revenue  tax  of  the  foreign  state  may  be  added  to  the  invoice  but  not  local 
taxes.'**' 

Where  a  part  of  an  entry,  though  not  specified  in  the  original  protest,  was  in 
fact  the  subject  of  consideration  on  reliquidation  by  the  collector,  the  time  for  pro- 
test will  begin  to  run  from  such  reliquidation.*^  If  good  grounds  are  set  forth  in  the 
protest  against  the  collector's  classification,  it  will  be  sustained  though  the  wrong 
paragraph  of  the  statute  in  support  is  cited  or  if  the  paragraph  is  not  cited  at  all.*^ 
The  collector  may  reconsider  his  classification  after  the  goods  have  passed  into  con- 
sumption.'*' 

The  board  of  general  appraisers  has  jurisdiction  to  review  a  decision  of  the  col- 
lector on  reliquidation  ordered  by  the  secretary  of  the  treasury.**  Only  so  much  of 
the  importation  can  be  examined  by  the  board  as  the  statute  directs.*^  The  burden  of 
showing  that  particular  goods  should  be  classified  under  particular  paragraphs  is  on 
the  government.*' 

In  the  absence  of  evidence,  the  court  on  appeal  will  sustain  the  classification 
of  the  board  of  general  appraisers.*^ 

If  goods  not  ordered  were  consigned  and  the  consignee  does  not  exercise  or 
perform  any  act  of  ownership,  the  entry  for  consumption  being  made  by  one  without 
authority  from  the  consignee,  he  cannot  be  charged  with  the  duties.*^ 

§  4.  Violations  of  customs  laws  and  consequences  thereof. — The  importer  is 
liable  for  the  additional  duty  on  account  of  undervaluation  though  no  actual  loss  by 
reason  thereof  occurred  to  the  government,*®  which  is  recoverable  though  the  col- 
lector of  tbe  port  did  not  levy  such  duty  on  the  importation. '''* 

Goods  fraudulently  imported  are  subject  to  forfeiture  though  the  importer  was  a 
fraudulent  purchaser  of  the  same  and  the  seller  entitled  to  rescind  the  sale.®^ 

DAMAGES. 


§  1.  Kinds  of  Damases  and  Characteris- 
tics.— Special;  Nominal;  Exemplary;  Liqui- 
dated; Double  and  Treble. 

§  3.     General    Principles    for    Ascertaining. 

—  Proximate  Consequences;  Speculative 
Damages;  Loss  of  Profits;  Avoidable  Loss; 
Mitigation   and  Aggravation. 

§  3.  Ueeovery  as  Affected  by  Status  or 
Limited   Interest. 

§  4.  Itreucb  of  Contract. — A.  Miscellane- 
ous Contracts.  B.  Land  Contracts.  C.  Cove- 
nants for  Title.  D.  Leases.  E.  Sales.  F. 
Bailment  and  Telegrams.  G.  Services.  H. 
Marriage. 


§  5.  Torts. — A.  Miscellaneous.  B.  Loss  of, 
or  Injury  to.  Property.  C.  Nuisance.  D. 
Trespass.  E.  Conversion.  F.  Wrongful  Talc- 
ing or  Detention.  G.  Fraud  or  Deceit.  H. 
Libel  and   Slander.    I.  Personal  Injuries. 

§  6.     Death   by  Wrongful  Act. 

§  7.     Excessive  and  Inadequate. 

§  8.  Pleading;  Evidence;  Procedure. — A. 
Pleading.  B.  Evidence.  C.  Instructions.  D. 
Verdicts. 


§  1.     Kinds  of  damages  and  their  characteristics. — Special  damages  are  such 
as  do  not  ordinarily  or  generally  result  from  a  given  cause.     They  are  extraordinary 


40.  In  France  the  general  Internal  revenue 
being  remitted  on  exportation.  The  special 
local  taxes  as  "droit  de  ville"  and  "octroi" 
are  to  be  excluded — Rheinstrom  v.  United 
States,  118  Fed.  303. 

41.  In  re  Brown,  Durrell  &  Co.,  121  Fed. 
605.  „   ^ 

42.  Knowles  v.  United  States,  122  Fed. 
971.  Act  1890.  c.  407,  §  14  (26  Stat.  137). 
Protest  held  sufficient  though  it  claimed  un- 
der a  paragraph  of  an  act  different  from  the 
one  applied  where  both  acts  contained  the 
same  paragraph— Shaw  v.  United  States  (C. 
C  A  )  122  Fed.  443.  Protest  held  sufficient 
which  claimed  a  right  of  free  entry  though 
the  paragraph  of  the  statute  under  which  the 
goods  were  in  fact  entitled  to  free  entry  was 
not  cited  in  the  protest— Bayersdorfer  &  Co. 
V.  United  States,   122  Fed.   968. 

43.  Knowles  v.  United  States.  122  Fed.  971. 


44.  United  States  v.  Beebe  (C.  C.  A.)  122 
Fed.  762.  The  appraiser  is  presumed  to  have 
acted  fairly  In  exercising  his  discretion  as  to 
the  production  of  packages  for  examination 
— Renvy  v.  United  States.  121  Fed.  441. 

43.  U.  S.  Rev.  St.  §  2939 — Renvy  v.  United 
States.  121  Fed.  441. 

46.  O.  G.  Hempstead  &  Son  v.  Thomas  (C. 
C.  A.)   122  Fed.  538. 

47.  Knowles  v.  United  States,  122  Fed. 
971;  E.  H.  Bailey  &  Co.  v.  United  States,  122 
Fed.  751. 

48.  United  States  v.  O'Neill  Bros.,  122  Fed. 
547. 

49.  Act  1897,  §  32 — United  States  v.  Nuck- 
olls  (C.  C.  A.)   118  Fed.  1005. 

50.  United  States  v.  Nuckolls  (C.  C.  A.) 
118   Fed.   1005. 

51.  581  Diamonds  V.  United  States  (C.  C 
A.)    119   Fed.   556. 


Cur.  Law — 53. 


834 


DAMAGES. 


§    1 


in  charactor  in  the  sense  that  they  follow  as  the  natural  result  of  the  intervention 
of  some  condition  or  circumstance  out  of  the  ordinary,  and  therefore  not  generally 
to  be  expected.^  There  can  be  no  recovery  of  such  damages  in  the  absence  of  special 
averment.* 

Nominal  damages  are  a  trifling  sura  allowed  where  an  infraction  of  a  right  is 
shown  but  no  resultant  damage  is  proved.^  The  rule  does  not  apply  to  a  defendant 
who  seeks,  under  plea  of  recoupment,  to  reduce  the  claim  of  plaintiff,  arising  under 
a  contract,  by  nominal  damages,  in  consequence  of  some  breach  of  the  same  contract 
by  the  plaintiff.*  A  verdict  for  nominal  damages  is  improper  where  actual  damage 
is  shown  with  certainty  as  to  amount.'  Where  plaintiff  is  entitled  to  at  least  nom- 
inal damages  a  nonsuit  is  improperly  granted.' 

Liquidated  damages  are  those  whose  amount  has  been  determined  by  antici- 
patory agreement  between  the  parties.''  They  are  enforceable  without  regard  to  the 
actual  damages  suffered  where  the  actual  damages  cannot  be  measured  with  ap- 
proximate certainty.*  Where  the  damages  are  of  easy  ascertainment  and  the  amount 
agreed  upon  is  disproportionate  to  the  actual  damages,  such  sum  will  be  regarded 
as  a  penalty  to  secure  the  performance  of  the  contract  and  actual  damages  only  arc 
recoverable.®  The  use  of  the  term  "liquidated  damages"  or  "penalt/'  in  the  agree- 
ment is  not  conclusive  on  the  question,^"  and  the  case  is  the  same  where  the  con- 
tract contains  a  provision  making  time  of  its  essence."  The  question  is  one  largely 
of  intent  of  the  parties  to  be  deduced  from  the  circumstances."     Amounts  agreed 


1.  Kircher  v.  Incorporated  Town  of  Larch - 
wood   (Iowa)    95  N.  W.  184. 

2.  Rules  relating  to  necessity  of  aver- 
ment of  special  damages,  see  post,  §  8. 

3.  Raymond  v.  Yarrington  (Tex.)  73  S. 
W.  800;  Yoder  v.  Reynolds  (Mont.)  72  Pac. 
417;  Wilcox  v.  Morten  (Mich.)  92  N.  W.  777; 
Armstrong  v.  Rhoades  (Del.  Super.)  53  Atl. 
435;  Armstrong  v.  Little  (Del.  Super.)  54 
Atl.  742;  Gruell  v.  Clark  (Del.  Super.)  54  Atl. 
955;  Williamson  County  v.  Farson,  Leach  & 
Co..  199  111.  71.  Nominal  damages  only  are 
recoverable  for  infringement  of  a  patent, 
where  the  owners  sold  the  article  without 
marking  It  "patented" — B.  B.  Hill  Mfg.  Co. 
V.  Stewart.  116  Fed.  927.  More  than  nominal 
damages  are  recoverable  against  a  sheriff 
for  oppressive  acts  in  the  service  of  a  civil 
process — Foley  v.  Martin  (Cal.)  71  Pac.  165. 
Nominal  damages  at  least  are  recoverable 
for  an  unlawful  levy  on  property  for  the 
debt  of  another — State  ex  rel.  Lilly  v.  Car- 
ter,  92  Mo.  App.   6. 

4.  Foote  &  Davies  Co.  v.  Malony,  115  Ga. 
985. 


112. 
0. 


Paxson   V.    Dean    (Ind.    App.)    67    N.    E. 


Bloom   V.   Grocery   Co.,    116    Ga.    784. 

7.  Cyc.   Law  Diet. 

8.  Pressed  Steel  Car  Co.  v.  Railway  Co. 
(C.  C.  A.)  121  Fed.  609;  Eastern  Ry.  Co.  v. 
Car  Co.,  Id.;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  V. 
Stone  Co..  90  Mo.  App.  171;  Drumheller  v. 
Surety  Co.,  30  Wash.  530,  71  Pac.  25;  Leavitt 
V.  Bolton,  102  111.  App.  5S2;  American  Cop- 
per, Brass  &  Iron  Works  v.  Galland-Burke 
Brewing  &  Malting  Co.,  30  Wash.  178,  70  Pac. 
236;  Hipp  v.  City  of  Houston  (Tex.  Civ.  App.) 
71  S.  W.  39;  Wood  v.  Paper  Co.  (C.  C.  A.) 
121  Fed.  818;  Menges  v.  Piano  Co..  96  Mo. 
Apv-  283;  Dobbs  v.  Turner  (Tex.  Civ.  App.) 
70  S.  W.  45S;  Champlain  Const.  Co.  v.  O'Brien. 
■'I'?  Fed  271,  7SS;  D'Brien  v.  Construction 
Co.,  IQ.,  Womack  v.  Coleman  (Minn.)  93  N. 
\V.  663;  Lamson  v.  City  of  Marshall  (Mich.) 
95  N.  W.  78;  Wood  v.  Paper  Co.  (C.  C.  A.) 
121   Fed.    818.     An   amount   fixpd   upon  as  the 


damages  for  breach  of  a  water  contract  !5< 
in  the  nature  of  liquidated  damages  and  rot 
a  penalty — Pogue  v.  Kaweah  Power  &  Wa- 
ter Co.  (Cal.)  72  Pac.  144.  A  stipulation  In 
a  contract  for  $10  a  day  as  liquidated  dam- 
ages for  delay  in  completing  a  structure' 
is  not  unreasonable,  and  will  be  upheld 
where  the  building  rents  for  $300  per  month 
— Ram.lose  v.  Dollman  CMo.  App.)  73  S.  W. 
917.  Under  Civ.  Code  of  I\Iont.  §  2243.  which 
provides  that  every  contract  by  which  the 
amount  of  damage  to  be  paid  for  breach  if- 
determined  in  advance,  is  to  that  extern 
void  except  as  expressly  provided  by  the 
following  section,  which  declares  that  the 
parties  to  a  contract  may  agree  upon  an 
amount  presumed  to  be  the  amount  of  dam- 
age sustained  by  breach  thereof,  when  from 
the  nature  of  tlie  acts  it  would  be  imprac- 
ticable to  fix  the  actual  damage.  It  is  tht- 
duty  of  defendant  to  plead  and  prove  that 
a  contract  is  one  wlierein  it  is  impracticable- 
or  extremely  difficult  to  fi.x  the  actual  dam- 
ages— Deuninck  v.  Irrigation  Co.  (Mont.)  7r 
Pac.  618. 

9.  Mansur  &  Tebbetts  Implement  Co.  \ 
Tissier  Arms  &  Hardware  Co.,  136  Ala.  597; 
Schreiber  v.  Cohen,  3S  Misc.  (N.  Y.)  546: 
Foote  &  Davies  Co.  v.  Malony  (Ga.)  42  S.  E. 
413;  Hicks  v.  Cycle  Mfg.  Co.  (N.  Y.)  68  N. 
E.  127;  Zimmerman  v.  Conrad  (Mo.  App.)  74 
S.  W.   139. 

Where  in  an  action  on  a  contract,  the 
-Stipulated  damages  are  so  disproportionate 
as  to  amount  to  a  penalty,  and  there  is  no 
evidence  of  the  actual  damages  sustained  by 
the  delay,  all  damages  are  properly  disal- 
lowed— Zimmerman  v.  Conrad  (Mo.  App.)  74 
S.   W.    139. 

10.  Use  of  word  "penalty" — Lamson  v. 
City  of  Marshall  (Mich.)  95  N.  W.  78.  De- 
posit of  $1,000  designated  as  "liquidated  dam- 
ages" for  breach  of  lease  providing  for 
monthly  rent  at  $45 — Caesar  v.  Rubinson 
174   N.  Y.    492. 

11.  Sherburne    v.    Hirst.    121    Fed.    9D8. 

12.  Hicks  V.  Cycle  Mfg.  Co.  (N.  Y.)  68  N 
E.   127. 


§  1 


KINDS  OF  DAMAGES. 


835 


upon  as  the  damages  for  breach  of  a  contract  not  to  engage  in  a  similar  business 
within  a  specified  territory  are  generally  regarded  as  liquidated  damages.^^ 

Exemplary  damages. — Damages  variously  termed  "exemplary,"  "punitive"  and 
"v.indictive"  are  recoverable  in  addition  to  actual  damages  where  the  act  causing 
the  injury  is  maliciously  or  willfully  done.^*  Their  recovery  is  confined  to  cases  of 
private  tort  and  even  then  damages  must  be  only  compensatory  as  a  general  rule.^' 
They  are  limited  to  the  aggravation  of  the  injury  and  are  not  given  for  purposes  of 
punishment/®  nor  as  a  penalty  for  a  public  wrong.^^  They  are  not  recoverable  in 
the  absence  of  proof  of  actual  damages,  and  must  bear  a  reasonable  proportion  to 
the  actual  damages  suffered.^^  Damages  for  mental  pain  and  suffering  are  actual 
and  not  punitive  damages.^*  Exemplary  damages  are  not  recoverable  against  a 
principal,^"  or  master^^  for  acts  of  their  agents  or  servants  unless  there  has  been 
a  ratification  of  the  misconduct. 

Wliere  willfulness  or  malice  is  sho%\Ti  exemplary  damages  may  be  recovered 
for  false  imprisonment,^-  malicious  prosecution,-^  libel,^*  slander,^^  aggravated  tres- 
pass,^**  ejection  of  passengers,-^  and  abuse  of  process  by  sheriffs.-* 


13.  Newpaper — Robinson  v.  Centenary 
Fund  &  Preacher's  Aid  Soc.  (N.  J.  L.)  54 
Atl.  416.  Barbershop — Liotta  v.  Abruzzo, 
82  App.  Div.    (N.   Y.)    429. 

14.  Harmon  v.  Western  Union  Tel.  Co.  (S. 
C.)  43  S.  E.  959;  Boyd  v.  Blue  Ridge  Ry.  Co.. 
65  S.  C.  326;  Gildersleeve  v.  Overstolz,  90 
Mo.  App.  518;  Petit  v.  Colmary  (Del.)  55  Atl. 
344;  Oliver  v.  Columbia  N.  &  L.  R.  Co.,  65  S. 
C.    1. 

Exemplary  damag-es  are  recoverable  for 
an  assault  committed  under  aggravating  cir- 
cumstances— Berknor  v.  Dannenberg.  116 
Ga.  954.  For  gross  negligence  in  failing  to 
deliver  a  telegram  announcing  a  death — 
"Western  Union  Tel.  Co.  v.  Law.on  (Kan.) 
72  Pac.  283.  Failure  to  deliver  a  telegram 
announcing  the  death  of  a  husband,  where 
the  evidence  shows  a  willful  disregard  of 
rights — Western  Union  Tel.  Co.  v.  Watson 
(Miss.)  33  So.  76.  Injuries  to  a  passenger, 
where  speed  indicates  a  reckless  disregard 
of  rights  of  passengers — Griffin  v.  Southern 
Ry.  Co..  65  S.  C.  122.  From  an  undertaker 
who  receiving  pay  for  a  good  coffin  in  ■which 
to  bury  a  person  infected  with  the  small  pox 
substitutes  a  plain  pine  box  too  small  to 
contain  the  remains — Dunn  v.  Smith  (Tex. 
Civ.  App.)  74  S.  W.  576.  Where  the  party 
with  full  knowledge  of  an  easement  for  a 
sewer  across  his  lot  destroys  such  sewer  and 
refuses  to  permit  its  re-construction  al- 
though it  could  be  done  Tvithout  injury  to 
property — Jones  v.  Sanders,  138  Cal.  405,  71 
Pac.   506. 

In  the  absence  of  proof  of  actual  malice, 
oppression  or  bad  motive,  there  can  be  no 
recovery  of  exemplary  damages  for  wrong- 
ful refusal  to  honor  a  check — American  Nat. 
Bank  v.  Morey,  24  Ky.  L.  R.  658,  69  S.  W. 
759.  Nor  for  the  protest  of  a  note  fully 
satisfied — State  Mut.  Life  &  Annunity  Ass'n 
V.    Baldwin.    116    Ga.    855. 

15.  Ilurxthal  v.  St.  Lawrence  Boom  & 
Lumber  Co.  (W.  Va.)  44  S.  E.  520.  Ex- 
emplary damages  are  not  recoverable  against 
a  steamship  company  for  reselling  a  Btate 
room  and  refusing  to  return  money  paid 
therefor  by  a  passenger;  the  rules  printed 
on  the  back  of  the  ticket  allowing  such  re- 
sale where  the  room  w^as  not  demanded  at  a 
certain  time  after  boat  had  left  the  w^harf — 
Clark  V.  New  York.  N.  H.  &  H.  R.  Co.,  40 
Misc.   (N.  Y.)   691. 


16.  McChesney  v.  Wilson  (Mich.)  93  N. 
W.    627. 

17.  Oliver  v.  Columbia.  N.  &  L.  R.  Co., 
65  S.  C.  1.  For  a  wrong,  the  commission  of 
which  subjects  the  wrong-doer  to  both  a 
criminal  prosecution  and  a  civil  action,  puni- 
tive damages  cannot  be  assessed — Borken- 
stein   v.   Schrack    (Ind.   App.)    67   N.   E.    547. 

18.  Flanary  v.  Wood  (Tex.  Civ.  App.)  73 
S.  W.  1072;  Hoagland  v.  Forest  Park  High- 
lands Amusement  Co.,  170  Mo.  335;  Cumber- 
land Telegraph  &  Telephone  Co.  v.  Hendon, 
24  Ky.  L.  R.  1271.  71  S.  W.  435.  A  recovery 
of  $2,344  exemplary  damages  is  excessive 
where  the  actual  damages  amount  to  $56 — 
Flanary  v.   Wood    (Tex.)    73   S.   W.    1072. 

19.  Young  V.  Gormley  (Iowa)  94  N.  W. 
922. 

20.  Rueping  v.  Chicago  &  N.  W.  R.  Co. 
(Wis.)    93   N.   W.   843. 

21.  Kastner  v.  Long  Island  R.  Co..  76 
App.  Div.  (N.  Y.)  323.  12  N.  Y.  Ann.  Cas.  77; 
Kentucky  Distillery  &  Warehouse  Co.  v. 
Schreiber,  24  Ky.  L.  R.  2236.  73  S.  W.  769. 
Not  awarded  where  the  act  of  wilfulness  was 
not  ratified  and  the  servant  had  been  prose- 
cuted criminally  therefor — Patterson  v.  New 
Orleans  &  C.  R.  Light  &  Power  Co.  (La.) 
34    So.    782. 

22.  Harness  v.  Steele.  159  Ind.  286.  Evi- 
dence of  good  faith  of  those  making  arrest 
is  admissible  on  the  question  of  exemplary 
damages  in  action  for  false  imprisonment — 
Pincham  v.  Dick  (Tex.)   70  S.  W.  333. 

23.  Kelly  v.  Durham  Traction  Co.  (N.  C.) 
43    S.    E.    923. 

24.  Turner  v.  Hearst.  137  Cal.  232,  70  Pac. 
18;  Crane  v.  Bennett,  77  App.  Div.  (N.  Y.) 
102;  Clark  V.  North  American  Co.,  203  Pa. 
346;  St.  Louis  S.  W.  Ry.  Co.  v.  McArthur 
(Tex.  Civ.  App.)  72  S.  W.  76;  Palmer  v.  Mahin 
(C.  C.  A.)  120  Fed.  737;  Minter  v.  Bradstreet 
Co.  (Mo.)  73  S.  yv.  668;  Brandt  v.  Morning 
Journal  Ass'n,  81  App.  Div.  (N.  Y.)  183; 
Donahoe  v.  Star  Pub.  Co.  (Del.)  55  Atl.  337. 
Where  some  of  the  defendants  publishing 
the  libellous  article  were  inspired  by  malice 
and  the  others  were  not,  the  verdict  should 
be  so  framed  as  to  Include  exemplary  dam- 
ages against  the  parties  guilty  of  express 
malice  and  compensatory  damages  against 
the  other  parties — Mauk  v.  Brundage,  68  Ohio 
St.    89. 

25.  Schofield  v.  Baldwin,  102  111.  App.   560. 


83b 


DAMAGES. 


§2 


A  statute  requiring  a  verdict  to  separately  state  the  amount  allowed  as  ex- 
emplary damages  has  no  application  to  actions  pending  at  the  time  of  its  enact- 
ment.^' Under  a  constitutional  provision  allowing  recovery  of  exemplary  dam- 
ages for  -willful  homicide,  a  court  may  instruct  the  jury  as  a  matter  of  law  to  award 
exemplary  as  well  as  actual  damages,  where  the  evidence  justifies  the  direction  of 
a  verdict  for  plaintiff.^" 

Under  the  civil  damage  act  of  South  Dakota,  there  may  be  no  recovery  of  ex- 
emplary damages  by  a  married  woman.^^ 

Statutory  double  and  treble  damages. — In  Missouri,  a  judgment  for  twice  the 
the  value  of  monthly  rents  and  profits  of  the  premises  is  given  in  an  unlawful  de- 
tainer case  for  wrongful  detainer  after  notice  to  vacate.''^  In  California,  the  code 
of  civil  procedure  allows  a  judgment  for  three  times  the  amount  of  rent  due 
at  the  time  of  the  trial,  if  the  unlawful  detainer  is  after  default  in  rent.^^  To 
authorize  the  recovery  of  treble  damages  for  forcible  ejectment  from  real  property 
imder  the  North  Dakota  laws,  it  is  necessary  that  the  entry  should  be  forcible, 
but  it  is  not  necessary  that  force  should  be  actually  applied;  it  is  enough  if  it  is 
present  and  threatened  and  is  justly  to  be  feared.^*  "Where  an  entry  has  been 
peaceably  made,  a  tenant  in  New  York  cannot  recover  the  treble  damages  allowed 
for  a  disseizin  in  a  forcible  manner  under  a  code  provision  authorizing  such  recov- 
ery under  these  circumstances.^"  One  buying  from  a  trespasser,  timber  cut  on 
land  of  another  with  guilty  knowledge  of  trespass  before  completing  the  purchase, 
is  liable  to  the  owner  for  treble  damages  under  the  Missouri  laws.^* 

A  statute  giving  tenfold  damages  for  the  killing  of  sheep  by  dogs  has  been 
upheld.*^ 

§  2.  General  principles  for  ascertaining.  Rule  of  strictness  as  between  con- 
tracts and  torts. — In  an  action  for  breach  of  contract  the  measure  of  damages  is  more 
strictly  confined  than  in  cases  of  tort,  the  primary  and  immediate  results  are  alone 
to  be  looked  to.*^ 

Limitation  to  natural  and  proximate  consequences. — There  may  be  no  recov- 
ery of  remote  and  speculative  damages  or  those  depending  on  mere  contingen- 
cies.^'   The  recovery  is  limited  to  damages  which  are  the  natural  and  proximate 


26.  Avera  v.  ■Williams  (Miss.)  33  So.  501; 
Hickey  v.  Welsh.  91  Mo.  App.   4. 

27.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Little  (Kan.)  71  Pac.  820;  Norman  v.  South- 
ern Ry.  Co.,  65  S.  C.  517.  Compelling  pay- 
ment of  fare  under  threat  of  ejection — Myers 
V.  Southern  R.  Co.,  64  S.  C.  514.  Not  deprived 
of  damages  for  humiliation  and  disgrace  be- 
cause no  one  was  present  beside  the  con- 
ductor and  brakeman — Kansas  City.  Ft.  S.  & 
M.   R.   Co.   V.   Little    (Kan.)    71   Pac.   820. 

2S.  Foley  V.  Martin  (Cal.)  71  Pac.  165. 
Against  sheriff  for  breaking  into  a  mill  and 
carrying  away  the  belt  by  which  the  ma- 
chinery was  propelled  instead  of  securing  a 
lien  of  record  under  the  laws — Friedly  v. 
Giddings.   119   Fed.    438. 

29.  Rev.  St.  1899,  §  595 — Minter  v.  Brad- 
street  Co.    (Mo.)    73   S.   W.   668. 

30.  Morgan  v.  Barnhill  (C.  C.  A.)  118  Fed. 
24. 

31.  Garrlgan  v.  Thompson  (S.  D.)  95  N. 
W.    294. 

32.  Hadley  v.  Bernero,  97  Mo.  App.  314. 

33.  Nolan  v.  Hentig,  138  Cal.  281,  71  Pac. 
440. 

34.  Rev.  Code,  N.  D.  §  5007 — Wegner  v. 
Lubenow  (N.  D.)   95  N.  W.  442. 

35.  Code  Civ.  Proc.  §  1669 — Yeamans  v. 
Nichols.   81   N.   T.  Supp.   500. 

36.  Carls  v.  Nimmons,   92  Mo.  App.   66. 


37.  Does  not  deny  equal  protection  of 
laws — Rausch  v.  Barrere,  109  La.  563. 

3S.  Hurxthal  v.  St.  Lawrence  Boom  & 
Lumber  Co.   (W.  Va.)   44  S.  E.   520. 

39.  Puget  Sound  Iron  &  Steel  Works  v. 
Clemmons  (Wash.)  72  Pac.  465.  A  nervous 
chill  Is  too  remote  to  be  considered  as  an 
item  of  damages  in  an  action  for  the  dishonor 
of  a  check  by  a  bank  in  which  plaintiff 
has  a  deposit — American  Nat.  Bank  v.  Morey, 
24   Ky.   L.   R.    658,   69   S.   W.   759. 

Mentnl  distress:  There  may  be  no  recov- 
ery for  fright  which  results  in  an  injury  un- 
less fright  is  the  proximate  cause  of  a  legal 
wrong  against  plaintiff  by  defendant — San- 
derson V.  Northern  Pac.  Ry.  Co.,  88  Minn., 
162.  60  L.  R.  A.  403.  For  a  wrongful 
refusal  to  honor  a  check,  there  may  be 
no  recovery  for  humiliation  or  mortifica- 
tion of  feelings — American  Nat.  Bank  v. 
Morey.  24  Ky.  L.  R.  658,  69  S.  W.  759. 
There  can  be  no  recovery  for  mental 
anguish  caused  by  the  dead  body  of  a 
relative  being  thrown  from  a  wagon  by 
the  negligent  operation  of  a  train,  where 
it  is  not  shown  that  any  injury  resulted 
to  the  body — Hockenhammer  v.  Lexington  & 
E.  Ry.  Co.,  24  Ky.  L.  R.  2383.  74  S.  TV.  222. 
Nor  for  mental  distress  caused  by  the  seizure 
and  sale  of  exempt  property — Morris  v.  Wil- 
llford    (Tex.    Civ.    App.)    70    S.    W.    228.     Nor 


§  2 


GENERAL    PRINCIPLES. 


837 


consequence  of  a  breach  of  a  contract  or  are  such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  the  parties  at  the  time  they  made  the 
contract  as  the  probable  consequence  of  the  breach  of  it.*"  Damages  traceable  in 
some  measure  to  a  tortious  act  but  resulting  chiefly  from  other  and  contingent  cir- 
cumstances, not  the  legal  or  natural  consequences  of  the  act,  are  too  remote  to  be 
the  basis  of  recovery  against  the  wrong  doer.*^  The  question  whether  a  breach 
of  warranty  is  the  proximate  cause  of  the  damages  claimed  is  a  matter  relating  to 
the  proof  and  not  to  the  pleadings,  so  as  to  authorize  striking  items  of  that  character 
from  the  answer.** 

Speculative  and  prospective  damages. — There  may  be  no  recovery  of  speculative 
or  conjectural,*^  or  uncertain  prospective  damages.** 

Loss  of  profits. — It  is  generally  held  that  probable  future  profits  are  not  recov- 
erable as  damages  either  for  breach  of  contract  or  for  tort.  Their  recovery  is  re- 
fused not  because  there  may  be  no  profits  but  because  of  difBculty  if  not  impossi- 
bility, in  estimating  them  with  any  sort  of  certainty.*'  Where  there  is  nothino-  to 
show  that  special  circumstances  existed  which  would  affect  the  subject-matter  of 
the  contract,  so  that  gains  would  be  lost  as  a  result  of  the  breach,  such  loss  will  be 
disregarded  and  the  damages  will  be  such  only  as  may  fairly  be  supposed  to  have 
been  in  contemplation  of  the  parties  at  the  time  the  contract  was  entered  into.*' 


for  shame  and  degradation  where  the  only 
basis  for  such  a  recovery  Is  a  defense  urged 
in  good  faith  to  the  action — Loomis  v.  Hol- 
lister,  75  Conn.  275.  Annoyance  and  dis- 
turbance of  mind  caused  by  an  invasion  of 
an  exclusive  privilege  at  a  fair  is  too  re- 
mote to  warrant  a  recovery  as  an  element  of 
damages — Mason  v.  Davis,  24  Ky.  L.  R.  1312, 
71   S.  W.   4  34. 

In  Louisiana  there  may  be  a  recovery 
for  disappointment  and  humiliation  suffered 
by  a  bride  on  account  of  defects  in  vi^edding 
garments  provided  for  her  wedding,  and  in 
this  recovery  may  be  included  damages  for 
mortification  at  being  deprived  from  attend- 
ing receptions  in  her  honor  after  marriage 
by  reason  of  her  not  having  suitable  dresses 
to  wear  at  these  functions — Lewis  v.  Holmes, 
109  La.    1030. 

Mental  distress  as  an  element  of  damages 
for  errors  and  delays  in  transmission  of 
telegrams,  see  post,  §  4.  As  an  element  of 
damages  for  personal  injuries,   see   post.  §  5. 

40.  J.  Wragg  &  Sons  Co.  v.  Mead  (Iowa) 
94  N.  TV.  856;  Leek  Mill.  Co.  v.  Langford 
(Miss.)  33  So.  492;  Colvin  V.  McCormick  Cot- 
ton Oil  Co..  66  S.  C.  61.  Recovery  for  an 
existing  disease  is  not  lost  by  reason  of 
the  length  of  time  which  has  elapsed  be- 
tween its  discovery  and  the  infliction  of 
original  injuries,  nor  upon  the  character 
of  the  disease  if  an  unbroken  connection 
is  shown — Wood  v.  New  York  Cent.  &  H.  R. 
Co.,   83   App.   Div.    (N.   T.)    604. 

41.  Central  of  Georgia  Ry.  Co.  v.  Dorsey, 
116  Ga.  719.  Evidence  as  to  damages  fifteen 
montlis  after  the  negligent  act  complained 
of  is  too  remote  and  conjectural  to  war- 
rant a  recovery  therefor — Simonson  v.  Min- 
neapolis &  St.  L.  R.  Co.,  88  Minn.  89. 

42.  Mallory  Commission  Co.  v.  Elwood 
(Iowa)    95   N.   W.    176. 

43.  Expert  testimony  that  injury  sustain- 
ed in  a  street  car  accident  might  be  the 
cause  of  headache  suffered  by  plaintiff  after 
the  accident  is  too  speculative  to  be  adopted 
in  estimating  damages — Huba  v.  Schenectady 
Ry.  Co..  85  App.  Div.  (N.  Y.)  199.  There  can 
be  no  recovery  of  damages  under  a  stipula- 
tion for  a  renewal  of  a  lease  where  tenants 


may  never   avail   themselves   of  the   stipula- 
tion— Jackson    v.    Doll,    109    La.    230. 

44.  Where  damages  resulting  ex  contractu 
are  continuing,  but  as  to  the  future  too  un- 
certain to  support  an  action  for  their  re- 
covery, and  suit  is  brought  for  such  as 
have  been  actually  sustained  at  the  day  of 
its  filing,  evidence  as  to  the  damages  subse- 
quently sustained  whilst  the  suit  is  pend- 
ing and  before  judgment,  should  be  excluded 
— Jamison  v.  Cullom   (La.)    34  So.  775. 

45.  Raywood  Rice,  Canal  &  Mill.  Co.  v. 
Langford  (Tex.  Civ.  App.)  74  S.  W.  926.  Loss 
of  profits  to  a  street  railway  company  in  the 
transportation  of  passengers  to  and  from  a 
summer  resort  are  too  speculative  and  un- 
certain to  furnish  the  basis  for  damages  for 
failure  of  an  engine  to  furnish  sulficient 
power  to  operate  the  line — People's  Sav. 
Bank  v.  Rapid  Transit  Co.  (Iowa)  92  N.  W. 
691.  Damages  for  loss  of  profits  in  a  busi- 
ness may  be  recovered  only  wliere  they  are 
susceptible  of  definite  ascertainment  and  di- 
rect results  of  the  injury — Paul  E.  Wolff 
Shirt  Co.  v.  Frankenthal,  96  Mo.  App.  307. 
Where  tenant  of  a  leased  building  partially 
destroyed,  moved  out,  an  allowance  of  profits 
on  the  lease  for  the  unexpired  term  would 
be  remote  and  speculative — Jackson  v.  Doll, 
109  La.  230.  The  profits  that  a  purchaser  of 
logs  could  have  made  had  the  logs  been  de- 
livered, is  too  remote  to  be  considered  in  an 
action  for  damages  for  breach  of  the  con- 
tract— Wilson  v.  Russler.  91  Mo.  App.  275. 
Loss  of  profits  on  breach  of  contract  of  sale 
of  goods   and   machinery,   see   post,    §   4. 

46.  South  Gardiner  Lumber  Co.  v.  Brad- 
street.  97  Me.  165;  Paguin  v.  St.  Louis  &  S. 
Ry.  Co.,  90  Mo.  App.  118.  In  an  action  for 
breach  of  a  contract  to  furnish  a  retail  deal- 
er with  fertilizer,  there  may  be  a  recovery 
of  loss  of  profits  on  sales  which  the  pur- 
chaser would  have  made  if  defendant  liad 
not  broken  his  contract,  and  this  particular- 
ly where  he  had  spent  much  time  and  labor 
in  advertising  the  brands  and  the  refusal 
to   fill   the   orders   came   at   the   time   when   a 

demand     for     fertilizer    was     the     greatest 

Currie   Fertilizer  Co.   v.   Krish,   24   Ky.   L.  R 
2471.    74   S.   W.    268. 


838 


DAMAGES. 


§  2 


Loss  of  profits  are  recoverable  for  damages  sustained  by  reason  of  an  obstruction 
of  adjoining  landowner  preventing  the  construction  of  a  factory  for  the  manufac- 
ture of  patented  articles.'*'  Where  the  damages  allowed  for  loss  of  a  vessel  sunk 
in  a  collision  are  based  on  a  total  loss  including  interest  on  the  value  of  the  vessel 
and  the  pending  freight,  there  may  be  no  recovery  for  loss  of  future  earnings  under 
an  unexpired  charter.*^ 

Difficulty  of  proof  of  amonnt  as  har. — Eecovery  of  damages  will  not  be  de- 
feated because  of  difficulty  of  proving  their  exact  amount,  it  will  be  sufficient  to 
approximate  damages  by  the  best  evidence  obtainable.*^ 

Avoidable  consequences. — A  party  suing  for  breach  of  contract  is  required  to 
do  what  he  reasonably  can  and  embrace  all  reasonable  opportunity  to  lessen  the  in- 
jury and  reduce  the  damages  caused  by  the  breach.^"  Whether  any  act  of  plaintiff 
would  have  lessened  the  amount  of  damages  for  breach  of  a  contract  is  a  question 
for  the  jury.^^ 

Where  obstruction  of  highways  or  ditches  could  be  removed  at  a  slight  ex- 
pense, that  will  be  the  measure  of  the  recovery.®-  There  may  be  no  recovery  for 
aggravation  of  an  injury  by  the  negligent  conduct  of  the  injured  person.®^  He  is 
not  prevented  from  recovering  because  he  considered  the  injury  unconsequential 
and  did  not  seek  the  services  of  a  phj-sician  until  home  remedies  had  failed.^* 
Though  it  is  the  duty  of  one  injured  to  render  the  loss  as  light  as  possible,  yet  he 
is  not  required  to  anticipate  a  loss.®®  A  recovery  of  damages  for  personal  injury 
will  not  be  defeated  by  the  fact  that  his  susceptibility  to  a  delirium  resulted  in  a 
measure  from  his  own  acts.®®  Where  plaintiff  knew  of  the  dangers  of  his  employ- 
ment, he  may  not  recover  exemplary  damages  for  an  injury  received  which  he  could 
have  guarded  against.®'^ 

Mitigation  and  aggravation  of  damages. — Abusive  and  insulting  language  and 
misconduct  of  one  suffering  at  the  hands  of  a  carrier's  servants  may  be  considered  in 
mitigation  of  damages.®^     The  damages  for  loss  of  animals  are  properly  reduced 


47.  Barnes  v.  Berendes  (Cal.)   72  Pac.  406. 

48.  The   Fontana    (C.   C.   A.)    119   Fed.   853. 
40.     Lincoln    v.    Orthwein     (C.    C.    A.)     120 

Fed.  880;  Banta  v.  Banta,  84  App.  Div.  (N.  Y.) 
138. 

50.  Hurxthal  v.  St.  Lawrence  Boom  & 
Lumber  Co.  (W.  Va.)  44  S.  E.  520;  Colvin  v. 
McCormick  Cotton  Oil  Co..  66  S.  C.  61.  On 
the  failure  of  an  advertiser  to  comply  with 
his  contract,  it  is  the  duty  of  the  publisher 
to  use  reasonable  efforts  to  fill  the  space 
contracted  for  in  order  to  reduce  the  dam- 
ages— Peck  V.  Metal  Roofing  &  Corrugating 
Co.,  96  Mo.  App.  212.  On  the  failure  of  the 
seller  of  goods  to  deliver  according  to  con- 
tract, it  is  the  duty  of  the  purchaser  to  pur- 
chase the  goods  as  cheaply  as  possible  and 
thus  render  the  damages  as  light  as  possi- 
ble, and  in  an  action  for  such  damages  his 
failure  to  do  so  will  be  considered — Creve 
Coeur  Lake  Ice  Co.  v.  Tamm.  90  Mo.  App. 
189.  A  chartered  vessel  loading  at  a  river 
port  during  a  low  stage  of  water  cannot 
recover  dead  freight  from  the  charterer  be- 
cause of  inability  to  cross  a  bar  with  the 
maximum  cargo,  which  the  charterer  w^as 
willing  to  furnish,  where  the  vessel  did  not 
wait  a  reasonable  time  for  the  river  to  rise — 
Tweedie  Trading  Co.  v.  New  York  &  B. 
Dyewood   Co.,    118   Fed.    492. 

51.  Peck  V.  Kansas  City  Metal  Roofing, 
etc.,    Co..    96   Mo.   App.    212. 

52.  Highway — Mellick  v.  Pennsylvania 
R.,  203  Pa.  457.  Ditch — Raleigh  v.  Clark. 
24   Ky.    L.   R.    1554,    71   S.   W.    857. 


53.  Campbell  v.  Los  Angeles  Traction  Co.. 
137  Cal.  565.  If  the  injured  party  fails  to 
jse  ordinary  care  to  treat  and  have  treated 
his  injury  and  by  reason  of  such  failure  the 
same  is  aggravated  or  increased,  he  can- 
not recover  damages  for  increased  injury 
resulting  from  his  failure  to  use  ordinary 
care  under  all  the  circumstances  to  have 
the  same  treated — Texas  Portland  Cement 
Co.  V.  Poe  (Tex.  Civ.  App.)  74  S.  "V\^.  563: 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Hubbard 
(Tex.  Civ.  App.)  70  S.  W.  112.  The  law  as  to 
damages  for  the  aggravation  of  eftisting  in- 
jury is  correctly  stated  by  an  instruction 
that  plaintiff  could  not  hold  defendant  lia- 
ble for  the  effects  due  to  the  former  condi- 
tion of  the  injury  and  he  was  only  entitled 
to  damages  on  account  of  decreased  earning 
poT\^er,  as  In  accordance  with  his  former 
condition  the  jury  should  consider  just — 
Leslie  v.  Jackson  &  S.  Traction  Co.  (Mich.) 
96  N.  ^^.  580.  Violation  of  a  physician's  in- 
structions by  using  an  Injured  limb  neg- 
ligently thereby  retarding  or  preventing  re- 
covery— Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Benson 
(Tex.  Civ.  App.)   72  S.  "W.  70. 

54.  Toledo  V.  Radbone,  23  Ohio  Circ.  R. 
268. 

55.  Taylor  v.  Norfolk  &  C.  R.  Co.,  131  N. 
O.    50. 

56.  Maguire  v.  Sheehan  (C.  C.  A.)  117 
Fed.    819.    59   L.   R.    A.   496. 

57.  Louisville  &  N.  R.  Co.  v.  Hall,  24  Ky. 
L.    R.    2487.    74    S.    W.    280. 

58.  Assault   by   conductor — Houston    &   T. 


§3 


QUALIFIED  INTEREST  OR  STATUS. 


839 


by  the  amount  realized  from  sales  of  hides  and  pelts.'^  There  may  not  be  a  recov- 
ery of  the  entire  value  of  a  broken  article  of  art  where  it  is  shown  that  it  has 
some  value  after  restoration.*^"  One  impaired  in  his  earning  capacity  by  an  acci- 
dent is  required  to  labor  to  his  capacity  in  order  to  mitigate  the  damages  as  much 
as  possible/^  and  it  may  be  shown  that  the  use  of  artificial  limbs  will  enable  one  to 
pursue  ordinary  occupations.®^  The  jury  may  take  into  consideration  the  fact  that 
defendant,  guilty  of  a  trespass,  acted  on  the  advice  of  capable  counsel."^  It  may 
not  be  shovni  in  mitigation  of  damages  for  the  wrongful  occupancy  of  land  with  a 
tramway  that  defendant  hauled  freight  free  of  charge  for  plaintiff's  tenants,  as  this 
does  not  show  any  benefits  derived  by  the  landowner.®*  Where  plaintiff  was  pre- 
vented from  completing  work  by  fault  of  the  owner,  the  defendant  may  show  that 
the  contractor  had  not  done  his  work  in  accordance  with  the  contract.®^ 

In  an  action  for  illegal  arrest  it  may  be  shown  as  a  matter  of  aggravation  that 
plaintiff  was  arrested  in  the  presence  of  his  family.®® 

§  3.  Recovery  as  affected  by  status  of  'plaintiff  or  limited  interest  in  property 
affected. — Under  laws  providing  for  the  >-^urvival  of  actions  for  negligent  injuries 
to  persons,  the  administrator  may  recover  the  same  damages  his  intestate  would  have 
recovered  if  living.®^ 

The  owner  of  a  freehold  may  recover  for  an  injury  which  permanently  depre- 
ciates his  property  while  a  tenant,  or  one  having  only  a  possessory  right  may  recover 
for  an  injury  to  the  use  and  enjoyment  of  that  right.®*  Under  the  laws  of  North 
Carolina  providing  for  the  assessment  of  the  entire  amount  of  damages  suffered  by 
a  trespass,  a  tenant  may  sue  for  injury  to  his  leasehold  estate  caused  by  the  trespass 
without  joining  the  landlord.®®  Where  the  acts  complained  of  were  commenced 
before  a  lease  of  the  land,  an  action  therefor  can  be  maintained  only  by  the  land- 
lord.'^"  A  landlord  of  property  on  leased  ground  may  recover  for  loss  of  rents  dur- 
ing the  remainder  of  a  lease  for  the  destruction  of  the  building.'^^ 

In  an  action  by  a  child,  the  damages  for  lessened  earning  capacity  are  limited 
to  the  period  to  which  the  child  would  be  entitled  to  his  own  earnings.''^  The 
measure  of  damages  for  the  loss  of  a  child's  services  is  their  pecuniary  value  during 
minority  less  care,  support,  and  maintenance.'''  In  Nebraska,  a  parent  may  recover 
for  loss  of  the  expected  services  of  a  child,  not  only  during  minority  but  afterwards, 
on  evidence  justifying  the  reasonable  expectation  of  pecuniary  benefit  therefrom.^* 

In  an  action  for  personal  injuries  plaintiff  may  show  that  she  is  a  widow,  as 
being  a  feme  sole  she  may  recover  for  her  own  services.'"'  In  an  action  for  injuries 
to  a  married  woman  living  apart  from  her  husband,  and  supporting  herself  by  her 


G.  R.  Co.  V.  Batchler  (Tex.  Civ.  App.)  73  S. 
W.  981.  Ejection  of  passenger — Bough  v. 
Metropolitan  St.  Ry.  Co.,  82  App.  Div.  (N.  T.) 
215. 

59.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Lee 
(Kan.)  72  Pac.  266.  A  verdict  for  damages 
on  the  killing  of  sheep  will  not  be  con-sid- 
ered  excessive  by  reason  of  the  failure  of 
the  jury  to  deduct  the  value  of  the  pelts 
where  there  was  no  evidence  before  them 
on  this  question — Peeler  v.  McMillan,  91  Mo. 
App.    310. 

60.  Comerford  v.  Smith,  82  App.  Div.  (N. 
Y.)    63S. 

61.  Missouri,  K.  &  T.  Ry.  Co.  v.  Flood 
(Tex.  Civ.  App.)    70  S.  W.   331. 

62.  Hamilton  v.  Pittsburgh.  C,  C.  &  St.  L. 
Ry.    Co.,    104    111.    App.    207. 

63.  United  States  v.  Homestake  Min.  Co. 
(C.  C.  A.)   117   Fed.   481. 

64.  Leigh  V.  Garysburgh  Mfg.  Co.,  132  N. 
C.   167. 

6."..     Wilson  V.  Borden,  68  N.  J.  Law,  627. 


66.  Young  V.  Gormley  (Iowa)  94  N.  W. 
922. 

67.  Kyes  V.  Valley  Tel.  Co.  (Mich.)  93  N. 
W.   623. 

6S.  St.  Louis,  L  M.  &  S.  Ry.  Co.  v.  Hall 
(Ark.)    74  S.  W.  293. 

«9.  Dale  v.  Southern  Ry.  Co.,  132  N.  C. 
705. 

70.  Sposato  V.  New  York,  75  App.  Div.  (N. 
Y.)   304. 

71.  McPhlllips  V.  Fitzgerald,  76  App.  Div. 
(N.  Y.)    15. 

72.  Chicago.  B.  &  Q.  R.  Co.  v.  Krayenbuhl 
(Neb.)    91   N.   W.   880,   59   L.   R.  A.    920. 

73.  Schnable  v.  Providence  Public  Market, 
24  R.  I.  477;  McGarr  v.  National  &  P.  Wor- 
sted Mills.  24  R.  I.  447,  60  L.  R.  A.  122.  No 
recovery  allowed  for  loss  of  child's  society — 
Id. 

74.  Draper  v.  Tucker  (Neb.)  95  N.  W.  1026. 

75.  Bradley  v.  City  of  Spickardsville,  90 
Mo.   App.    416. 


840 


DAMAGES. 


§  4A 


own  labor,  the  jxiry  may  take  into  consideration  her  age  and  condition  in  life  in  as- 
sessino-  the  damages."  Under  the  Married  ^Yomen's  act  of  Colorado,  a  married  wo- 
man in  an  action  for  personal  injuries  cannot  recover  for  her  inability  to  perform 
household  duties." 

§  4.  Measure  and  elements  of  damages  for  Ireacli  of  contract.  A.  Miscel- 
laneous contracts.  Interest  as  an  element. — There  may  be  no  recovery  of  interest 
for  breach  of  a  contract  where  the  damages  are  uncertain  and  indefinite.^^  Where 
the  recovery  is  for  a  breach  of  an  obligation  not  arising  from  contract,  the  allow- 
ance of  interest  is  a  question  for  the  jury  under  the  laws  of  South  Dakota.'^* 

For  breach  of  a  contract  for  sale  of  a  medical  practice,  the  measure  of  damages 
is  the  difference  between  the  contract  price  to  be  paid  and  the  market  value  of  the 
property  at  the  time  of  the  breach,  not  exceeding  the  amount  demanded.*"  In  an 
action  by  one  person  against  another  for  a  wrongful  dissolution  of  partnership,  the 
measure  of  damages  is  the  value  of  the  partnership  to  the  plaintiff  and  not  his 
share  of  the  profits  which  defendant  made  thereafter  on  carrying  on  the  business." 
On  breach  of  a  contract  to  maintain  a  person  for  the  remainder  of  his  life  in  con- 
sideration of  the  conveyance  of  certain  property,  the  measure  of  damages  would  be 
the  cost  of  boarding  and  clothing  the  person  during  his  life  less  what  care  he  had 
already  received  from  the  defendant.®^ 

Newspaper  contracts. — For  breach  of  a  contract  with  a  news  association  for  fur- 
nishing news,  the  association  may  recover  the  difference  between  what  it  would  have 
received  after  the  breach  up  to  the  time  of  its  insolvency,  which  occurred  some 
months  later,  and  what  it  would  have  cost  the  association  to  have  performed  the 
contract  during  that  time.*' 

The  measure  of  damages  for  breach  of  an  advertising  contract  before  the  pur- 
chaser had  done  anything  thereunder  is  the  contract  price  less  the  sum  the  pub- 
lisher might  have  obtained  by  the  exercise  of  reasonable  diligence  for  advertising  in 
the  space."  On  rejection  of  an  advertising  scheme  providing  for  the  payment  of 
a  certain  per  cent  based  on  an  increase  of  advertising  business  shown  by  its  use. 
there  may  be  a  recovery  of  the  percentage  on  the  amount  of  the  increase  of  business 
shown  by  the  surreptitious  adoption  of  part  of  the  scheme,  though  the  seller  was 
not  the  sole  originator  of  the  scheme  or  its  forms.*' 

Insurance  contracts. — An  act  allowing  the  recovery  of  a  percentage  of  the  loss 
as  attorney's  fees  from  an  insurance  company  for  failure  to  pay  a  loss  within  the 
time  specified  in  its  policy  docs  not  apply  to  accident  insurance.*'  The  measure 
of  damages  for  breach  of  a  contract  to  insure  property  against  loss  by  fire  is  the 
value  thereof  up  to  the  amount  for  which  it  was  agreed  that  insurance  should  be 
procured.*' 

Contracts  referring  to  negotiable  instruments. — In  an  action  for  damages  for 


76.  Brake  v.  Kansas  City  (Mo.  App.)  75 
S.  W.   191. 

77.  Mills'  Ann.  St.  Colo.  §§  3009,  3012.  3020 
—Denver  &  R.  G.  R.  Co.  v.  Young  (Colo.) 
70  Pac.  6S8. 

78.  Dady  v.  Condit.  104  111.  App.  507. 

79.  For  possession  on  refusal  of  sheriff 
to  Issue  deed  on  ground  that  period  of  re- 
demption had  expired  (Comp.  Laws  S.  D. 
S  4578) — Hollister  v.  Donahoe  (S.  D.)  92  N. 
W.  12. 

80.  "Wallingford  v.  Aitkins,  24  Ky.  L.  R. 
1995,  72  S.  W.   794. 

81.  McCollum  V.  Carluccl  (Pa.)  55  Atl. 
979. 

82.  Poston  V.  Eno,  91  Mo.  App.  304. 


S3.  United  Press  v.  Abell,  79  App.  Dlv. 
(N.    Y.)    550. 

84.  Peck  V.  Kansas  City  Metal  Roofing, 
etc.,  Co.,  96  Mo.  App.  212.  The  amount  is  a 
question  for  the  jury  under  all  tlie  circum- 
stances disclosed  by  the  evidence — Id. 

85.  Taylor  v.  Times  Newspaper  Co. 
(Minn.)   93  N.  W.  659. 

86.  Rev.  St.  1895.  art.  3071 — Aetna  Life 
Ins.  Co.  V.  Parker  (Tex.)  72  S.  W.  168.  580. 
W^liere  the  policy  was  payable  in  annual  In- 
stallments, the  penalty  prescribed  and  the 
attorney's  fees  should  be  computed  only  on 
installments  due  when  suit  w^as  commenced 
^New  York  Life  Ins.  Co.  v.  English  (Tex. 
Civ.  App.)    70   S.   W.    440. 

87.  Everett  v.  O'Leary  (Minn.)  95  N.  W. 
901.     Loss  under  policy,  see  title  Insurance. 


§  4B 


LAND   CONTRACTS. 


841 


refusal  to  repurchase  a  trust  deed  according  to  agreement,  evidence  of  the  value  of 
the  premises  sold  under  foreclosure  is  inadmissible,  as  there  is  a  presumption  in 
the  absence  of  fraud  or  irregularity,  that  the  price  obtained  at  the  sale  was  all  that 
they  would  bring,**  nor  will  a  deficiency  judgment  afford  a  just  estimate  of  the 
damages  suffered  by  reason  of  the  refusal  to  repurchase.*® 

Oil  contracts. — For  breach  of  a  contract  to  furnish  oil  on  certain  terms  for  a 
certain  period,  the  plaintiff  may  recover  all  damages  for  the  breach  and  not  merely 
those  accruing  prior  to  the  filing  of  his  petition.''"  Where  pending  an  appeal  by  de- 
fendant from  a  judgment  for  specific  performance  of  an  agreement  to  transfer  oil 
property,  the  defendant  removes  material  and  produces  oil  therefrom,  the  damage 
on  afiirmance  is  based  on  the  value  of  the  material  and  oil  on  the  day  plaintiffs  are 
put  in  possession  of  the  property,  though  this  value  exceeds  that  at  the  time  when 
the  material  and  oil  were  taken.®^ 

Contracts  with  railroad  companies. — On  breach  of  a  contract  to  operate  a  rail- 
road across  land  under  which  the  railroad  company  had  received  a  bonus,  the  meas- 
ure of  damages  is  the  actual  loss  suffered  by  the  landowner  to  be  determined  by 
ascertaining  the  value  of  the  land  to  its  owner  with  the  railroad  on  it  and  in  opera- 
tion and  the  value  of  the  same  land  with  the  railroad  abandoned.*^  On  the  re- 
moval of  a  switch  built  under  an  agreement  with  the  landowner  that  he  should 
construct  the  grade  and  furnish  the  ties,  the  contract  stipulating  no  time  for  the 
existence  of  a  switch,  the  landowner  may  recover  for  the  ties  and  his  expenditures 
in  making  the  grade.®*  Where  the  owner  of  a  brickyard  was  deprived  of  its  use  by 
failure  to  build  a  tramway  as  agreed  upon  between  the  parties,  the  rental  value  of 
the  works  is  competent  to  go  to  the  jury  as  showing  the  damages  sustained.®* 

(§4)  B.  Contracts  for  sale  or  purchase  of  land. — In  an  action  by  the  vendee 
of  realty  for  breach  of  a  contract  to  convey,  the  measure  of  damages  is  not  the  pur- 
chase price  paid  vdth  legal  interest  but  the  actual  value  of  land  at  the  time  it  should 
have  been  conveyed.®'  In  Virginia,  the  measure  of  damages  for  a  breach  of  con- 
tract of  sale  of  realty  by  the  vendor  is  the  contract  price  and  not  the  difference  be- 
tween the  contract  price  and  the  market  value  of  the  property  at  the  time  of  the 
breach.®*  For  breach  of  a  parol  contract  for  the  sale  of  land,  the  damages  are  lim- 
ited to  the  purchase  money  paid  and  expenses  incurred,  and  there  can  be  no  recovery 
for  loss  of  profits.®^ 

A  vendor  suing  on  a  contract  of  sale  of  realty  is  not  limited  to  the  difference 
between  the  agreed  price  and  the  market  value  when  the  vendee  agreed  to  take  and 
pay  for  the  realty,  but  he  may  recover  on  the  basis  of  the  agreed  price.®*  The 
measure  of  damages  in  an  action  against  an  abstracter  for  failure  to  discover  a  de- 
fect is  the  difference  between  what  the  purchaser  paid  and  the  present  worth  of  what 
he  actually  received,®®  and  where  plaintiff  has  not  been  ejected  but  has  received 


88,  89.     Loeb   v.   Stern,   198   IH.   371. 

90.  Standard  Oil  Co.  v.  Denton,  24  Ky.  L. 
R.  906,  70  S.  W.  282. 

91.  Southern  Oil  Co.  v.  Scales  (Tex.  Civ. 
App.)   69  S.  W.  1033. 

92.  Eckington  &  S.  H.  Ry.  Co.  v.  Mc- 
Devitt.   18   App.   D.  C.   497. 

93.  Scholten  v.  St.  Louis  &  S.  F.  R.  Co. 
(Mo.    App.)    73   S.   W.    915. 

94.  Lipscomb  v.  South  Bound  R.  Co.,  65 
S.  C.   148. 

95.  Krepp  v.  St.  Louis  &  S.  F.  R.  Co.  (Mo. 
App.)  72  S.  W.  479.  Where  the  conditions 
are  such  at  the  time  when  the  deed  is  to 
be  delivered  that  a  hig-her  price  could  be 
obtained  in  the  market  than  that  agreed 
upon,  then  the  jury  may  take  into  considera- 


tion this  Increased  value  without  regard  to 
whether  the  conditions  are  permanent  or 
temporary — Dady  v.  Condit,  104  111.  App. 
507.  In  an  action  for  specific  performance, 
the  measure  of  damages,  where  performance 
cannot  be  enforced,  is  the  amount  paid  by 
vendee  with  interest,  expense  in  searching 
title,  and  the  difference  between  the  contract 
price  and  the  market  value  of  the  property 
together  with  costs — Schorr  v.  Gewirz,  39 
Misc.    (N.  Y.)    186. 

96.  Stuart  v.   Pennis    (Va.)    42  S.  B.   667. 

97.  Gray  v.  Howell,   205  Pa.  211. 

98.  Gray    v.    Meek,    199    111.    136. 

99.  Kenthan   v.    St.    Louis   Trust   Co.    (M< 
App.)    73   S.  W.   334. 


842 


DAMAGES. 


§  -ic 


rents  and  profits  of  the  property,  he  is  not  entitled  to  interest  in  addition  to  the 
damages.^ 

(§  4)  C.  Breach  of  covenant  as  to  tiiJe. — For  breach  of  covenant  of  seizin,  the 
measure  of  damages  is  the  consideration  with  interest  from  the  time  of  the  convey- 
ance.^ Where  the  title  has  partially  failed  and  the  consideration  was  paid  as  a  whole, 
then  the  measure  of  damages  is  the  proportion  in  value  that  the  land  to  which  title 
failed  bore  to  '^e  whole  land,  or  if  the  consideration  was  severable  as  to  the  various 
tracts,  and  tii.^'  failed  as  to  one  of  these  tracts,  then  the  measure  of  damages  is  the 
price  paid  for  the  particular  tract  with  interest.^  Where  there  is  a  partial  failure  of 
title,  the  value  of  the  property  at  the  time  of  the  conveyance  forms  the  basis.* 

On  a  covenant  against  incumbrances  where  the  breach  alleged  is  an  outstand- 
ing lease  of  the  premises,  the  measure  of  damages  is  the  rental  value  for  the  unex- 
pired term." 

For  breach  of  a  covenant  of  warranty  of  title,  the  measure  of  damages  is  the 
consideration  money  lost  to  the  buyer  and  not  the  value  of  the  property  less  any 
unpaid  consideration,'  nor  damages  for  loss  of  the  bargain.^  Where  tlie  title  fails 
to  a  portion  sold  for  a  gross  sum,  the  measure  of  damages  is  such  a  proportion  of 
the  consideration  paid  as  the  value  of  that  part  of  the  land  to  which  the  title  has 
failed  bears  to  the  value  of  the  whole  land  and  interest  on  such  proportion.^ 

(§  4)  D.  Contracts  to  give  lease  and  liabilities  as  hetiveen  lessor  and  lessee.— 
Where  a  tenant  is  wrongfully  evicted  during  the  term  for  which  he  has  paid  rent,  he 
can  recover  from  the  landlord  the  entire  amount  paid  for  the  period.''  Loss  of  profits 
to  a  business  are  recoverable  where  such  loss  can  be  proved  with  reasonable  certainty 
to  have  resulted  from  the  landlord's  act.^"  A  tenant  unlawfully  removed  under 
judgment  in  forcible  entry  may  recover  the  difi^erence  between  the  rental  value  of 
the  premises  and  the  rent  reserved  from  the  day  of  the  eviction  to  the  end  of  the 
term  or  the  termination  of  the  lease  otherwise.^^  For  failure  of  a  landlord  to  at 
liver  possession  at  the  comi:iencement  of  the  term,  lessee  may  recover  the  difference 
between  rent  agreed  to  be  paid  and  the  value  of  the  term,  together  with  such  special 
damages  as  may  be  shown.^-  The  special  damages  recoverable  are  limited  to  dam- 
ages the  direct  and  natural  result  of  the  breach  of  contract,  as  these  damages  are 


1.  Kenthan  v.  St.  Louis  Trust  Co.  (Mo. 
App.)    73   S.  W.   334. 

2.  Conklin   v.  Hancock.   67   Ohio  St.   455. 

3.  Lloyd  V.  Sandusky  (lU.)  68  N.  E.  154. 
Where  the  parties  have  agreed  on  a  fixed 
and  uniform  price  per  acre  or  per  front 
foot  or  any  other  standard  or  quantity,  the 
measure  of  damages  is  such  price  multiplied 
by  the  quantity  of  land  as  to  which  the 
oonvenant  fails  with  Interest — Conklin  v. 
Hancock,   67  Ohio  St.   455. 

4.  Lloyd   V.    Sandusky    (111.)    68   N.   E.   154. 

5.  J.  Wragg  &  Sons  Co.  v.  Mead  (Iowa) 
94  N.  W.  856.  The  fact  that  the  grantor 
knew  that  plaintiff  intended  to  use  the  land 
for  storage  purposes  will  not  make  defend- 
ant liable  for  the  amount  expended  by  plain- 
tiff during  the  continuance  of  the  Incum- 
brance in  hauling  stock  to  and  from  a  more 
distant  place  of  storage,  as  such  damages 
are  too  remote  to  have  been  within  the 
contemplation   of  the  parties — Id. 

6.  West  Coast  Mfg.  &  Inv.  Co.  v.  West 
Coast  Imp.  Co..  31  Wash.  610,  72  Pac.  455; 
Roberts  v.  McFaddln  (Tex.  Civ.  App.)  74  S. 
W.   105. 

7.  Roberts  v.  McFaddin  (Tex.  Civ.  App.) 
74  S.  W.   105. 

8.  West    Coast   Mfg.    &    Inv.    Co.    v.    West 
-Coast  Imp.  Co.,  .31  "^^ash.   610.   72   Pac.   455. 
"9.     Mallette  v.  Hillyard    id.)    43   S.   E.   779. 


10.  Murphy  v.  Century  Bldg.  Co.,  90  Mo. 
App.  621.  Where  a  landlord  breaks  into  a 
tenant's  place  of  business  and  tears  down 
partitions  and  bars  doors  and  puts  the  room 
in  i>ossession  of  private  detectives  for  a 
few  days,  the  plaintiff  may  prove  the  net 
income  of  his  business  before  the  wrongful 
dispossession  to  show  what  he  lost  by  dis- 
possession— Gildersleeve  v.  Overstolz,  90  Mo. 
App.   518. 

11.  Small  V.  Clark.   97  Me.   304. 

12.  Bernhard  v.  Curtis,  75  Conn.  476;  Wil- 
liamson v.  Stevens.  84  App.  Div.  (N.  Y.) 
518.  Will  include  expenses  incurred  in  rent- 
ing and  fitting  up  another  store  if  necessary 
to  protect  him  from  loss  but  not  expendi- 
tures made  toward  the  occupancy  of  the 
store  after  knowledge  of  the  situation  as  to 
a  tenant  in  possession  of  the  leased  premises, 
nor  loss  sustained  by  depreciation  in  value 
of  goods  which  he  had  on  hand  before  he 
had  obtained  the  lease,  but  may  be  allowed 
loss  sustained  by  reserving  goods  for  use  in 
the  store — Bernhard  v.  Curtis,  75  Conn.  476. 
For  breach  of  a  lease  of  an  exclusive  privi- 
lege in  a  railway  station  caused  by  failure 
to  eject  a  former  tenant  and  designate  place 
for  work,  loss  of  profits  may  not  be  recov- 
ered, the  recovery  being  limited  to  the  rent 
paid  in  advance  and  the  costs  of  the  action — 
Deluise  v.  Long  Island  R.   Co.,  174  N.  Y.  616. 


s  4fc: 


SALES. 


b43 


presumed  to  have  been  in  contemplation  of  the  landlord."  The  measure  of  dam- 
ages for  the  breach  of  a  farm  rental  contract  is  the  difference  between  the  contract 
price  aiid  the  market  rental  value  of  the  land."  For  breach  of  a  crop-sharing  rent- 
al contract,  the  measure  of  damages  is  the  reasonable  market  value  of  the  tenant's 
share  of  the  crops  he  would  be  reasonably  expected  to  have  raised  during  the  term, 
less  his  earnings  for  the  period,  or  what  he  would  have  earned  by  the  exercise  of 
reasonable  diligence,  and  such  damages  are  not  regarded  as  speculative.^^  Where 
a  landlord  lawfully  distrains  for  rent  justly  due  but  in  later  proceedings  acts  irregu- 
larly or  unlawfully,  the  tenant  cannot  maintain  a  suit  for  these  irregular  acts  with- 
out a  sliowing  of  special  damage.^®  On  breach  of  a  contract  to  make  repairs  on 
leased  premises,  the  party  making  the  repairs  may  recover  their  value  fi'om  the 
party  in  default.^^  A  tenant  is  not  deprived  of  his  right  of  recovery  for  forcible 
entry  by  the  fact  that  his  lease  has  expired  before  the  trial  of  the  action  making  it 
impossible  to  grant  a  writ  of  restitution.^^ 

(§4)  E.  Contracts  for  sale  or  purchase  of  goods  and  chattels. — The  seller  of 
goods  for  refusal  of  purchaser  to  accept  same  may  recover  the  difference  between  the 
market  value  at  the  time  of  the  breach  and  the  contract  price.^®  As  to  articles  not 
manufactured  but  included  in  the  contract,  the  measure  is  the  difference  between 
the  cost  of  manufacture  and  the  contract  price.^**  The  market  value  may  be  de- 
termined by  a  prompt  resale  at  the  best  obtainable  price.-^  There  is  a  presump- 
tion in  the  absence  of  evidence  that  the  value  of  bonds  is  that  expressed  on  their 
face,^-  and  where  there  is  a  breach  of  a  contract  to  receive  ores  deliverable  in 
monthly  instalments  throughout  the  year,  insufficient  deliveries  to  be  made  good 
by  the  last  day  of  the  year,  it  is  the  market  value  on  the  last  day  of  the  year  that 
governs.-^ 

The  purchaser  on  a  breach  of  a  contract  to  sell  and  deliver  may  recover  the 
market  value  of  the  article  at  the  time  and  place  of  the  breach.^*  Loss  of  profits 
may  be  considered,^^  unless  they  are  so  uncertain  as  to  rest  in  conjecture,-*     Where 


13.  Bernhard  v.    Curtis.   75   Conn.    476. 

14.  Scottish-American.  Mortg.  Co.  v.  Tay- 
lor  (Tex.   Civ.    App.)    74   S.   W.   564. 

15.  Rogers  V.  McGuffey  (Tex.)  74  S.  W. 
753;  Rogers  v.  McGuffey  (Tex.  Civ.  App.)  75 
S.  W.  817. 

10.     Brown   v.    Howell,    68    N.    J.    Law,    292. 

17.  Barnhart  v.  Boyce,  102  111.  App.  172; 
Thompson  v.  Clemens.  96  Md.  196,  60  L.  R. 
A.  580.  For  failure  of  a  tenant  to  make  re- 
pairs in  accordance  with  the  contract,  and 
by  reason  of  this  breach  the  landlord  is 
compelled  by  the  authorities  to  make  the 
repairs,  he  may  recover  from  the  tenant  the 
cost  of  repairs  and  the  rental  value  of  the 
building  during  the  time  occupied  in  mak- 
ing the  repairs — Loughlin  v.  Carey,  21  I'a. 
Super.  Ct.  477. 

18.  Cutler  v.  Co-operative  Brotherhood, 
31   Wash.    680,   72   Pac.    464. 

19.  Gehl  V.  Produce  Co.  (Wis.)  93  N.  W. 
26;  First  Nat.  Bank  v.  Ragsdale,  171  Mo. 
168;  Pratt  v.  S.  Freeman  &  Son's  Mfg.  Co.. 
115  Wis.  648;  Saveland  v.  Railroad  Co.  (Wis.) 
95  N.  W.  fSO;  Kincaid  v.  Price  (Colo.  App.) 
70  Pac.  153;  Hamilton  v.  Finnegan.  117 
Iowa,  623;  Gruell  v.  Clark  (Del.  Super.)  54 
Atl.  955.  Where  the  seller  of  goods  is  ready 
to  deliver  them  In  accordance  with  the  con- 
tract, the  measure  of  damages  on  refusal  of 
the  purchaser  to  receive  them  is  the  dif- 
ference between  the  contract  price  and  the 
cost  of  manufacture  and  delivery — Puritan 
Coke  Co.  V.  Clark.  204  Pa.  556.  For  breach 
of   a   contract    to   receive   piles,    the   measure 


of  damages  Is  the  difference  between  the 
actual  cost  to  the  contractor  of  delivering 
the  piles  and  the  contract  price  therefor — 
Reed  v.  Railroad  Co.  (Ky.)   75  S.  W.  200. 

20.  Puritan  Coke  Co.  v.  Clark.  204  Pa 
556. 

21.  Gehl  V.  Produce  Co.  (Wis.)  93  N.  W. 
26;  American  Hide  &  Leather  Co.  v.  Chalk- 
ley   &   Co.    (Va.)    44   S.   E.    705. 

22.  Weigley  v.  Kneeland.  60  App.  Dlv. 
(N.    Y.)     614. 

23.  Duluth  Furnace  Co.  v.  Mining  Co 
(C.  C.  A.)   117  Fed.  138. 

24.  O'Gara  v.  Ellsworth.  85  App.  Div.  (N. 
Y.)    216. 

23.  B.  B.  Williams  &  Co.  v.  Bienvenue. 
109  La.  1023.  For  breach  of  a  contract  to 
furnish  goods  purchased  by  a  merchant  to 
fulfill  contracts  made  for  their  sale,  there 
may  be  a  recovery  of  the  expected  profit  on 
the  sale — Lapp  v.  Illinois  Watch  Co..  104  m. 
App.  255.  For  breach  of  a  contract  to  de- 
liver goods  to  a  purchaser  for  resale,  there 
may  be  a  recovery  of  the  profits  lost  through 
the  seller's  breach  of  the  contract,  where 
the  purchaser  was  unable  to  obtain  other 
like  good  in  the  open  market — F.  W.  Kava- 
naugh  Mfg.  Co.  v.  Rosen  (Mich.)  92  N.  W. 
78S.  For  delay  in  the  delivery  of  machinery 
the  seller  is  responsible  for  the  loss  of  the 
use  or  possibly  for  interest  on  the  invest- 
ment where  there  is  no  rental  value,  but  not 
for  loss  of  profits  in  the  business  in  which 
such  machinery  is  to  be  used — Creamery 
Pkg.    Mfg.    Co.    V.    Creamery    Co.     (Iowa)    85 


B44 


DAMAGES. 


§  4E 


the  article  is  machinery,  there  may  be  recovered  all  damages  within  the  contempla- 
tion of  the  parties  at  the  time  of  entering  into  the  contract.-^  Where  property 
should  have  been  delivered  at  any  time  within  a  certain  period,  the  law  in  regu- 
lating the  measure  of  damages  contemplates  a  range  of  the  entire  market,  and  the 
average  price  as  thus  found  running  through  the  period  of  time,  and  not  sudden 
or  transient  inflation  of  prices  or  depression  of  prices.^^  For  breach  of  a  contract 
to  deliver  during  the  month,  the  market  price  at  the  place  of  delivery  on  the  last 
day  of  the  month  controls.^' 

For  breach  of  a  warranty  on  return  of  goods,  the  vendee  may  recover  such  dam- 
ages as  may  reasonably  be  supposed  to  have  been  in  contemplation  of  the  parties 
when  the  contract  was  made.'"  This  does  not  allow  recovery  of  expense  of  making, 
an  examination  of  the  articles  bought.'^  In  case  of  live  stock  bought  with  warranty 
of  soundness,  purchaser  may  recover  reasonable  compensation  for  attempts  to  cure 
diseases  manifesting  themselves  in  the  stock.'^  Where  the  warranted  article  is 
worthless  for  any  purpose,  purchaser  can  recover  the  entire  price  paid.''  For  breach 
of  a  contract  to  furnish  suitable  machinery,  which  has  been  accepted  and  put  in 
use  in  ignorance  of  its  failure  to  comply  with  the  contract,  the  buyer  may  recover 
the  difference  between  its  value,  if  it  had  complied  with  the  contract,  and  its  value 
in  its  defective  condition.'*  For  breach  of  a  warranty  of  an  engine  to  furnish  mo- 
tive power  to  a  street  railway  line,  there  may  be  a  recovery  of  losses  due  to  passen- 
gers being  compelled  to  leave  the  cars  before  reaching  their  destination,  the  excessive 
use  of  coal,  injury  to  boilers  and  the  generator,  and  extra  labor.'^     For  breach  of  a 


N.  W.  188.  Mere  delay  In  furnishing  ma- 
chinery which  does  not  interrupt  an  estab- 
lished business  will  not  allow  the  award  of 
prospective  profits  by  way  of  damages — 
Creamery  Pkg.  Mfg.  Co.  v.  Benton  County 
Creamery  Co.   (Iowa)   95  N.  W.  ISS. 

26.  Lapp  V.  Illinois  Watch  Co.,  104  111. 
App.  255.  The  general  rule  of  damages  for 
nondelivery  of  goods  excludes  the  elements 
of  profit  and  loss — South  Gardiner  Lumber 
Co.   V.   Bradstreet,   97  Me.  165. 

27.  Colvin  v.  Cotton  Oil  Co.,  66  S.  C.  61. 
For  the  breach  of  a  contract  in  failing  to 
deliver  machine  for  a  cotton  mill,  there  may 
be  recovered  damages  to  the  seed  by  the 
firm  manufacturing,  arising  from  expenses 
Incurred  in  cooling  it  after  heating,  as  these 
expenses  are  within  the  reasonable  contem- 
plation of  the  parties — Id.  For  breach  of 
a  contract  to  furnish  an  essential  part  of  a 
disabled  machine  within  a  specified  time, 
the  measure  of  damages  is  the  value  of  use 
of  machine  in  the  business  for  the  time 
which  intervenes  between  day  for  delivery 
fixed  by  contract  and  day  of  actual  delivery, 
if  the  circumstances  are  known  to  both  par- 
ties at  the  time  of  making  the  contract — 
Champion  Ice  Mfg.  &  Cold  Storage  Co.  v. 
Iron  Works  Co.,  68  Ohio  St.  229.  In  an  ac- 
tion for  damages  for  delay  in  furnishing 
machinery  for  creamery,  there  may  be  no 
recovery  for  damages  arising  out  of  the 
fact  that  the  patrons  delivered  their  milk  to 
others,  as  being  too  remote  and  speculative 
— Creamery  Pkg.  Mfg.  Co.  v.  Creamery  Co. 
(Iowa)  95  N.  W.  188.  W^here  the  warranty 
of  a  logging  engine  is  merely  that  defective 
parts  will  be  replaced  and  the  seller  of  the 
engine  knew  nothing  of  the  extent  of  the 
buyer's  operations,  there  can  be  no  recovery 
of  loss  of  profits  caused  by  the  breaking  of 
defective  parts  of  the  machine,  as  they  will 
not  be  deemed  to  have  been  within  the  con- 
templation of  the  parties  at  the  time  of  en- 


tering Into  the  contract — Puget  Sound  Iron 
&  Steel  Works  v.  Clemmons  (Wash.)  72  Pac. 
465. 

28.  O'Gara  v.  Ellsworth,  85  App.  Dlv.  (N. 
Y.)    216. 

29.  J.  P.  Gentry  Co.  v.  Margolius  &  Co 
(Tenn.)    75  S.  W.  959. 

30.  Punteney-Mitchell  Mfg.  Co.  v.  T.  G. 
Northwall  Co.  (Neb.)  91  N.  W.  863.  In  an 
action  for  breach  of  warranty  of  powder  for 
use  in  flash  lamps  sold  on  a  warranty  that 
it  contained  no  explosive  compound,  dam- 
ages for  injuries  received  by  tlie  buyer  from 
an  explosion  of  powder  are  recoverable  in 
an  action  for  breach — Wood  v.  K.  &  H.  T. 
Anthony  &  Co.,  79  App.  Div.  (N.  Y.)  111. 
In  an  action  for  the  purchase  price  of  goods, 
where  breach  of  warranty  is  pleaded  as  to 
the  quality  of  the  goods  and  it  is  shown 
that  the  goods  were  bought  for  resale  and 
the  vendor  knew  that  fact,  and  the  vendee 
before  discovering  the  defects  sells  thera  to 
customers  who  reject  them  because  of  de- 
fects, the  reasonable  expenses  incurred  in 
making  such  abortive  sales  and  in  returning 
the  goods  are  proper  elements  of  damages — 
Punteney-Mitchell  Mfg.  Co.  v.  T.  G.  North- 
wall  Co.    (Neb.)    91   N.   W.   863. 

31.  Lifshitz  v.  McConnell,  80  App,  Div. 
(N.  Y.)    289. 

32.  Galbreath  v.   Carnes,    91   Mo.  App,   512. 

33.  Small  v.  Bartlett.  96  Mo.  App.  550: 
Westinghouse  Electric  &  Mfg.  Co.  v.  Troell 
(Tex.    Civ.   App.)    70   S.    W.    324. 

34.  Florence  Oil  &  Refining  Co.  v.  Farrar 
(C.  C.  A.)  119  Fed.  150.  For  breach  of  a 
warranty  of  a  filtering  plant,  the  purchaser 
may  recover  all  the  money  paid  for  the  plant 
ind  all  losses  otherwise  suffered  in  conse- 
quence of  failure  to  do  the  work  as  war- 
ranted— O.  H.  Jewell  Filter  Co.  v.  Kirk.  200 
111.   382. 

35.  People's    Sav.    Bank    v.    Rapid    Transit 


§  4F 


BAILMENTS  AND  MESSAGES. 


845 


contract  for  the  manufacture  and  delivery  of  a  vessel  to  have  a  specified  speed,  the 
rueasurc  of  damages  is  the  difference  between  the  market  value  of  the  vessel  as  she 
is  and  as  she  was  warranted  to  be.^^  The  measure  of  damages  for  selling  unsound 
cattle  feed  which  caused  a  lessening  in  the  weight  of  the  cattle  and  their  deteriora- 
tion in  market  value  is  the  diminished  market  value  at  the  time  and  place  they  are 
injured."  For  sale  of  goods  on  which  a  partial  payment  had  been  made,  the  meas- 
ure of  damages  to  the  persons  making  the  payments  is  the  value  of  the  goods  at 
the  time  they  were  sold.^^ 

(§4)  F.  Liability  of  bailees,  carriers,  and  telegraph  companies. — Where  no 
•special  damages  are  asked  for  breach  of  a  contract  of  carriage,  the  recovery  is  limited 
to  what  it  would  cost  the  passenger  to  get  from  the  point  of  departure  to  his  destina- 
tion in  the  most  feasible  and  reasonable  way,  allowing  nothing  for  humiliation  or 
indignity.^^  For  delays  in  transportation,  a  passenger  may  recover  the  reasonable 
value  of  the  time  lost.*"  For  wrongful  ejection  of  a  passenger,  there  may  be  a  re- 
covery for  loss  of  time,  physical  and  mental  suffering,  and  humiliation.*^  Where 
the  ejection  is  rightfully  made,  no  unnecessary  force  being  used,  damages  are  not 
recoverable.*^  There  can  be  no  recovery  for  mental  suffering  unaccompanied  by 
physical  injury  for  carrying  a  passenger  beyond  his  destination.*^  In  the  absence 
of  malice  only  actual  damages  can  be  recovered  for  refusal  to  stop  a  train  at  a  flag 
station.**  A  steamship  company,  landing  a  party  at  a  point  short  of  the  destina- 
tion, is  liable  for  expenses  and  loss  of  time  occasioned  thereby  within  reasonable 
limitations.*^  There  may  be  no  recovery  for  fright  caused  by  collision  where  no 
physical  or  bodily  injury  resulted.*® 


Co.   (Iowa)   92  N.  W.  691;  Fischer  Foundry  & 
Mach.  Co.  V.  Same,  Id. 

36.  Bull  V.  Bath  Iron  Works,  75  App.  Div. 
(N.   Y.)    380. 

37.  Houston    Cotton    Oil    Co.    v.    Trammell 
<Tex.  Civ.  App.)    72  S.  W.   244. 

38, 
544. 


Trotter    v.    Tousey    (Mich.)    92    N.    W. 
Rose    V.    King,    76    App.    Div.    (N.    Y.) 


39. 

308. 

40.  For  detention  by  a  railroad  wreck. 
an  attorney  can  recover  from  the  carrier 
only  the  value  of  his  time  during  the  delay 
based  on  the  average  of  what  he  had 
earned  for  at  least  a  year  preceding,  where 
he  had  not  notified  the  carrier  of  special 
circumstances  making  it  necessary  for  him 
to  arrive  on  scheduled  time — Cooley  v.  Penn- 
sylvania R.  Co.,  40  Misc.  (N.  Y.)  239.  In 
an  action  for  damages  for  delay  in  furnish- 
ing transportation,  the  employment  of  one 
of  the  party  in  a  menial  capacity  by  the 
person  in  charge  thereof  during  the  delay 
will  not  warrant  the  allowance  for  such 
services  the  wages  the  person  was  to  have 
been  paid  for  work  in  the  line  of  his  em- 
ployment at  point  of  destination — Johnson 
v.  San  Juan  Fish  &  Packing  Co.  (Wash.) 
71  Pac.  787.  For  a  refusal  to  issue  to  a 
passenger  an  exchange  ticket  for  mileage 
as  required  by  the  condition  of  the  mileage 
book  which  entitled  the  holder  to  trans- 
portation in  exchange  tickets  over  certain 
iines  the  measure  of  damages  is  the  time 
lost  by  the  passenger  and  any  expense  In- 
curred or  loss  thereby  directly  sustained — 
Schmidt  v.  Cleveland,  C,  C.  &  St.  L.  Ry. 
Co.,    25    Ky.    L.    R.    11,    74    S.    W.    674. 

41.  Choctaw.  O.  &  G.  R.  Co.  v.  Hill 
(Tenn.)  75  S.  W.  963;  Rawlings  v.  Wabash 
R.  Co.,  97  Mo.  App.  515.  Liable  for  in- 
juries to  the  feelings  though  no  physical 
Injuries   were   inflicted — Mabry   v.    City   Elec. 


Ry.  Co.,  116  Ga.  624,  59  L.  R.  A.  590.  In- 
creased pain  to  a  lame  hand  caused  by  a 
wrongful  ejection — Texas  &  P.  Ry.  Co.  v. 
Lynch  (Tex.  Civ.  App.)  73  S.  W.  65.  For 
a  wrongful  expulsion  a  lawyer  cannot  re- 
cover for  the  loss  of  time  where  there  is 
no  proof  as  to  the  value  of  the  time  lost — 
Pennsylvania  Co.  v.  Scofleld  (C.  C.  A.)  121 
Fed.  814.  Under  a  law  allowing  the  ejec- 
tion of  a  passenger  for  failure  to  pay  his 
fare,  on  the  conductor's  stopping  the  train, 
there  may  be  recovery  of  at  least  nominal 
damages  for  ejection  while  the  train  is  in 
motion — Holt  v.  Hannibal  &  St.  J.  Ry.  Co. 
(Mo.)    74    S.    W.    631. 

43.  England  v.  International  &  G.  N.  R. 
Co.    (Tex.   Civ.   App.)    73   S.   W.    24. 

43.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Dalton,  65  Kan.  661,  70  Pac.  645.  A  female 
passenger  carried  beyond  her  destination 
and  required  to  walk  a  long  distance  with- 
out an  escort  to  the  house  of  a  friend,  can- 
not recover  for  fright  at  hearing  loud  voices 
of  negro  men  walking  behind  her,  unless 
it  Is  shown  that  the  railroad  company  knew 
that  the  locality  was  one  in  which  such 
occasion  for  fright  was  likely  to  occur — 
Central  of  Georgia  R.  Co.  v.  Dorsey,  116 
Ga.  719.  One  put  off  a  train  250  yards  be- 
yond his  station  "without  any  injury  and 
no  malice  or  inhumanity  on  the  carrier's 
part  may  not  recover  for  sickness  caused 
by  his  falling  Into  a  stream  while  return- 
ing to  the  station — Rawlings  v.  Wabash  R. 
Co.,    97    Mo.    App.    511. 

44.  Yazoo  &  M.  V.  R.  Co.  v.  White  (Miss.) 
33  So.   970. 

45.  In  an  action  against  a  steamship 
company  for  landing  plaintiff  and  his  em- 
ployes at  a  point  short  of  their  destination, 
where  they  were  compelled  to  remain  for 
some  time  and  to  furnish  an  outfit  and  sup- 
plies    to    take     them     to     their    destination, 


846 


DAMAGES. 


§   4F 


The  oAvner  of  goods  may  recover  for  deterioration  caused  by  the  unreasonable 
delay  of  the  carrier  in  delivering  same/^  and  the  value  is  not  to  be  determined  by 
the  value  of  similar  goods  at  nearby  second-hand  stores.**  For  the  loss  of  a  valuable 
package,  recovery  is  limited  to  the  liability  fixed  by  the  company  on  shipments,  \m- 
less  their  true  value  is  stated.*®  Stipulations  fixing  the  value  of  the  property  in 
case  of  injury  or  loss  are  valid. ^°  The  limitation  only  applies  to  the  carrier  rela- 
tion, and  not  to  that  as  a  bailee  for  hire.^^ 

The  measure  of  damages  for  a  carrier's  delay  in  the  delivery  of  stock  is  the 
difference  between  their  market  value  in  the  condition  in  which  they  were  delivered 
and  their  market  price  if  seasonably  delivered,  deducting  therefrom  any  depreciation 
necessarily  resulting  from  the  transportation.^^  The  measure  of  damages  for  in- 
juries to  stock  is  the  difference  between  the  market  value  of  the  stock  in  the  condi- 
tion in  which  they  would  have  arrived  but  for  the  negligence  and  the  market  value 
in  the  condition  in  which  they  did  arrive.^^  The  value  of  stock  may  be  proved  by 
opinion,  but  whether  or  not  there  is  a  market  for  stock  as  injured  is  not  provable 
by  opinion  evidence.^*  The  measure  of  damages  for  cattle  dying  from  injuries  re- 
ceived in  transit  is  the  market  value  of  the  cattle  at  the  point  of  destination,^^  less 
the  amount  received  by  the  owner  on  a  sale  of  carcasses.^''  A  shipper  may  recover 
the  amount  of  a  feed  bill  where  the  cattle  were  not  actually  fed  and  he  had  to  pay 
the  bill  to  get  possession.^^ 

Compensatory  damages  are  recoverable  for  damages  caused  by  delays  and  er- 
rors in  the  transmission  of  telegrams  where  they  may  be  determined  with  certainty 
and  are  not  objectionable  as  being  remote,"*  and  the  company  is  advised  of  the  im- 


plalntiff  may  recover  his  own  and  the  par- 
ties' living  expenses  at  the  point  where 
they  were  landed  and  the  cost  of  the  sup- 
plies and  outfit — Bullock  v.  White  Star  S. 
S.    Co.,    30   Wash.    448,    70   Pac.    1106. 

46.  Ohliger  v.  Toledo  Traction  Co..  23 
Ohio  Circ.   R.   265. 

47.  San  Antonio  &  A.  P.  R.  Co.  v.  Josey 
(Tex.  Civ.  App.)    71   S.  W.   606. 

48.  Wells-Fargo  Exp.  Co.  v.  Williams 
(Tex.  Civ.  App.)   71  S.  W.  314. 

49.  Rowan  v.  Wells-Fargo  &  Co.,  80  App. 
Dlv.    (N.    Y.)    31. 

50.  Nelson  v.  Great  Northern  Ry.  Co. 
(Mont.)  72  Pac.  642;  101  Live  Stock  Co.  v. 
Kansas  City,  M.  &  B.  R.  Co.  (Mo.  App.)  75 
S.  W.  782;  Central  of  Georgia  Ry.  Co.  v. 
Glascock    (Ga.)    43    S.    E.    9S1. 

.'-.1.  Bermel  v.  New  York,  N.  H.  &  H.  R. 
Co..   172  N.   Y.   639. 

52.  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Botts  (Tex.  Civ.  App.)  70  S.  W.  113;  Mis- 
souri. K.  &  T.  Ry.  Co.  V.  Storey  (Tex.  Civ. 
App.)  75  S.  W.  847.  Interest  may  be  in- 
cluded— Texas  &  P.  Ry.  Co.  v.  Smissen  (Tex. 
Civ.   App.)    73   S.  W.   42. 

53.  Cleveland.  C,  C.  &  St.  L.  R.  Co.  v. 
Patton.  203  111.  376;  International  &  G.  N. 
R.  Co.  V.  Young  (Tex.  Civ.  App.)  72  S.  W. 
68;  Texas  &  P.  Ry.  Co.  v.  Meeks  (Tex.  Civ. 
App.)    74    S.   W.    329. 

54.  Texas  &  P.  Ry.  Co.  v.  Meeks  (Tex. 
Civ.    App.)    74    S.    W.    329. 

55.  56.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  But- 
ler   (Tex.    Civ.   App.)    73    S.    W.    84. 

57.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Botts 
(Tex.    Civ.    App.)    70    S.    W.    113. 

58.  The  damages  caused  by  failure  to 
deliver  a  telegram  to  come  and  contract 
for  building  a  house,  are  too  uncertain — 
Harmon   v.   Western   Union    Tel.    Co.    (S.    C.) 


43  S.  E.  959.  Compensatory  damages  can- 
not be  recovered  of  a  telegraph  company 
for  failure  to  send  or  deliver  a  mere  pro- 
posal to  sell  lumber,  as  they  are  contingent 
upon  its  acceptance — Beatty  Lumber  Co.  v. 
Western  Union  Tel.  Co.  (W.  Va.)  44  S.  E. 
309.  In  an  action  for  failure  to  deliver  a 
message  correctly  which  caused  a  loss  of 
a  position  to  a  student  in  a  normal  school. 
a  failure  of  the  student  to  receive  benefit 
from  his  course  In  the  school  because  of 
worry  over  loss  of  position,  is  too  remote 
to  be  considered — Western  Union  Tel.  Co. 
V.  Partlow  (Tex.  Civ.  App.)  71  S.  W.  584. 
For  failure  of  a  telegraph  company  to  de- 
liver a  message  which  resulted  in  the  fail- 
ure of  the  addressee  to  sell  property  to  a 
person  who  had  agreed  to  purchase  it  at 
a  certain  price,  the  measure  of  damages 
is  the  difference  between  the  amount  which 
he  would  have  received  for  the  property  and 
the  amount  which  he  did  receive  on  dis- 
posing of  it  after  due  diligence  to  obtain 
the  highest  price  which  he  could  under  the 
circumstances.  In  this  case  it  was  held 
that  the  evidence  failed  to  show  that  the 
price  received  was  the  highest  price  thai 
with  reasonable  diligence  could  have  been 
obtained  under  the  circumstances — Brooks 
v.  Western  Union  Tel.  Co.  (Utah)  72  Pac. 
499.  In  an  action  for  failure  to  deliver  a 
message  announcing  a  death,  there  can  be 
no  recovery  of  the  cost  of  exhuming  and 
reburying  the  deceased,  unless  it  is  shown 
that  the  plaintiff  incurred  the  expen.^e — 
Western  Union  Tel.  Co.  v.  Watson  (Miss.) 
33  So.  76.  Damages  are  not  recoverable  in 
an  action  for  failure  to  promptly  deliver 
a  telegram,  where  it  Is  not  shown  that 
plaintiff  suffered  any  physical  injury — West- 
ern Union  Tel.  Ca  v.  Cross'  Adm'r  (Ky.) 
74  S.  W.   1098. 


§  4F 


BAILMENTS  AND  MESSAGES. 


847 


portance  of  the  message.'"  For  nondelivery  of  a  telegram,  there  may  be  recovered, 
as  actual  damages,  money  paid  for  the  transmission  and  delivery  of  the  telegram.'^'' 
Mental  suffering  is  an  element  of  recovery  in  some  states  for  delay  in  transmission 
and  delivery  of  telegrams  announcing  fatal  illness  or  death  of  near  relatives.®' 
There  is  a  sufficient  disclosure  of  the  importance  of  a  telegram  to  warrant  recovery 
for  mental  anguish  for  failure  to  deliver  it,  where  it  recites  the  death  of  a  person.®- 
Mental  anguish  at  delay  in  the  delivery  of  a  telegram  asking  for  information  as  to 
the  health  of  a  child  is  not  recoverable.®^  Where  a  message  is  delivered  to  the  tele- 
graph company  at  a  point  for  transmission  to  a  point  in  another  state,  damages 
for  mental  anguish  suffered  by  delay  in  the  delivery  may  be  recovered  in  the  state 
from  which  the  message  was  sent,  though  such  damages  are  not  recoverable  in  the 
state  of  the  delivery  of  the  message.®*  There  may  be  no  recovery  for  mental  an- 
guish caused  by  the  failure  to  deliver  a  telegram  to  a  clergyman  requesting  his  at- 
tendance at  a  funeral.®"^  Plaintiff  may  be  asked  as  to  the  nature  and  duration  of 
his  grief  on  hearing  of  the  death  of  his  brother,  and  whether  it  was  increased  by 
his  inability  to  attend  the  funeral.®®  The  intentional  failure  of  a  messenger  boy 
to  deliver  a  telegram  authorizes  the  awarding  of  punitive  damages  against  the  com- 
pany.®^ 

For  disconnecting  a  telephone  by  mistake,  the  subscriber,  in  the  absence  of 
proof  of  pecuniary  injury,  can  recover  only  the  amount  paid  for  the  service  for  the 
time  the  telephone  was  disconnected  on  the  basis  of  the  monthly  rental.®* 

Penalties  for  failure  to  transmit  telegrams  promptly  are  recoverable  only  by  the 
sender  of  the  dispatch  and  not  by  the  addressee.®' 

For  loss  of  cotton  delivered  to  a  cotton  compress  company,  the  value  is  that  at 


Co.    V.    Lawson 
Union    Tel.    Co., 


59.  Western  Union  Tel.  Co.  v.  Pearce 
(Miss.)  34  So.  152.  In  an  action  against  a 
telegrapli  company  for  failure  to  deliver 
a  telegram  to  a  slieriff  to  postpone  an  exe- 
cution sale  of  land  belonging  to  plaintiff. 
the  plaintiff  may  recover  to  the  full  ex- 
tent of  his  actual  interest  In  the  prop- 
erty wliere  the  message  disclosed  his  inter- 
est— Western  Union  Tel.  Co.  v.  Wofford  (Tex. 
Civ.   App.)    74   S.   W.    943. 

eo.     Western    Union    Tel 
(Kan.)    72    Pac.    283. 

61.  Graham  v.  Western 
109  La.  1069;  Marsh  v.  Western  Union  Tel 
Co.  (S.  C.)  43  S.  E.  953;  Western  Union 
Tel.  Co.  v.  Seffel  (Tex.  Civ.  App.)  71  S.  W. 
616;  Meadows  v.  Western  Union  Tel.  Co. 
(N.  C.)  43  S.  E.  512;  Western  Union  Tel.  Co. 
V.  Cavln  (Tex.  Civ.  App.)  70  S.  W.  229. 
Grandparents — Western  Union  Tel.  Co.  v. 
Crocker,  135  Ala.  492.  Recovery  of  uncle 
standing  in  relation  of  parent  to  deceased 
— Bright  v.  Western  Union  Tel.  Co.  (N.  C.) 
43  S.  E.  481.  Mental  anguish  and  inabil- 
ity to  attend  the  funeral  of  a  niece  is  not 
an  element  of  damage  in  an  action  by  the 
uncle  for  damages  against  a  telegraph 
company  for  delay  in  delivery  of  the  message 
announcing  her  death — Western  Union  Tel. 
Co.  V.  Wilson  (Tex.)  75  S.  W.  482.  The 
complaint  sufficiently  states  a  cause  of  ac- 
tion for  damages  for  delay  in  the  delivery 
of  a  telegram,  where  it  recites  delivery  for 
transmission  within  a  reasonable  time  so 
that  had  it  been  promptly  delivered  plain- 
tiff could  have  attended  his  sister's  funeral. 
who  was  dying  at  the  time  of  the  sending 
of   the   message,    and   plaintiff   did   not    know 


of  her  condition  until  the  evening  of  the 
second  day  thereafter,  at  which  time  his 
sister  had  been  buried,  and  by  reason  of 
wilful  negligence  the  plaintiff  was  subject 
to  great  pain  and  anguish  in  consequence 
of  being  deprived  of  the  privilege  of  at- 
tending his  sister's  funeral — Hartzog  v. 
Western  Union  Tel.  Co.  (Miss.)  34  So.  361. 
In  an  action  for  delay  In  the  delivery  of 
a  telegram,  there  may  be  no  recovery  for 
plaintiff's  inability  to  reach  her  daughter's 
bed-side  and  for  mental  anguish  in  not  be- 
ing able  to  accompany  her  home,  where  the 
message  was  sent  by  a  friend,  announcing 
the  sickness  of  the  daughter  and  request- 
ing the  mother  to  telephone,  as  these  dam- 
.iges  could  not  have  been  In  contemplation 
of  the  parties  as  a  probable  result  of  a 
breach  of  duty  of  the  telegraph  company — 
Western  Union  Tel.  Co.  v.  McFadden  (Tex. 
Civ.    App.)    75    S.    W.    352. 

63.  Bright  v.  Western  Union  Tel.  Co.  (N. 
C.)    43    S.    E.    841. 

63.  Western  Union  Tel.  Co.  v.  O'Cal- 
laghan    (Tex.    Civ.    App.)    74    S.   W.    798. 

64.  Western  Union  Tel.  Co.  v.  Waller 
(Tex.)    74   S.  W.   751. 

63.  Western  Union  Tel.  Co.  v.  Arnold 
(Tex.)     73    S.    W.    1043. 

66.  Western  Union  Tel.  Co.  v.  Simmons 
(Tex.    Civ.    App.)    75    S.    W.    822. 

67.  Butler  v.  Western  Union  Tel.  Co.  (S. 
C.)    44   S.    E.    91. 

65.  Cumberland  Telephone  &  Telegraph 
Co.  V.  Hendon,  24  Ky.  L.  R.  1271,  71  S.  W. 
435. 

6!).  Thompson  v.  Western  Union  Tel.  Co., 
40    Misc.    (N.    Y.)    443. 


848 


DAMAGES. 


§  4H 


the  time  of  the  discovery  of  the  loss  with  interest  and  not  its  value  at  the  time  of 
suit.'" 

(§4)  G.  Contracts  for  services. — Where  a  contract  for  personal  services  is  en- 
tire and  breacli  of  it  is  total,  the  measure  of  damages  is  what  the  plaintiff  would  have 
earned  less  what  it  would  have  cost  him  to  perform  services  according  to  the  terms  of 
the  contract.^^ 

A  contractor  prevented  from  completing  his  work  by  the  fault  of  the  owner 
of  the  property  may  recover  such  a  proportion  of  the  entire  price  as  the  fair  cost 
of  the  work  done  bears  to  the  fair  cost  of  the  whole  work,  and  in  respect  to  work 
not  done,  the  profits  he  would  have  realized  by  doing  it.''^  On  failure  of  a  con- 
tractor to  comply  with  his  contract  he  may  recover  on  a  quantum  meruit  for  the 
value  of  the  services  performed,  less  the  damages  occasioned  by  his  breach  of  the 
contract. ''' 

For  breach  of  a  contract  of  emplo}Tnent,  the  measure  of  damages  is  the  salary 
for  the  contract  time  less  what  plaintiff  earned  or  could  have  earned  at  other  em- 
ployment during  the  term.''*  What  the  servant  earned  or  could  have  earned  in  the 
meantime  is  a  matter  of  defense  and  should  be  pleaded  in  mitigation  of  damages,^'' 
and  the  employer  has  the  burden  of  showing  that  other  and  more  profitable  employ- 
ment than  that  in  which  plaintiff,  in  fact,  engaged,  in  order  to  reduce  the  damages, 
had  been  offered  and  declined  or  might  have  been  found.''®  Where  the  complaint 
in  the  action  for  breach  of  contract  of  employment  averred  inability  to  obtain  em- 
ployment, evidence  as  to  earnings  may  be  shown  by  defendant  under  a  general  de- 
nial.'''  The  doctrine  allowing  deduction  of  earnings  on  breach  of  contract  of  em- 
ployment has  no  application  to  earnings  after  the  expiration  of  the  contract  time.''* 

One  employed  to  perform  services  covering  a  number  of  years  and  prevented  by 
his  employer  from  working  under  the  contract  may  recover  his  monthly  salary  as  it 
accrues  though  he  does  no  work  whatever  under  the  contract,  where  he  is  ready  and 
willing  to  work  and  no  work  is  offered.'"  On  breach  of  a  contract  of  permanent 
employment,  where  a  part  of  the  consideration  was  the  rendition  of  services  for  a 
less  rate  than  formerly  received  for  the  work,  the  plaintiff  may  recover  the  reasonable 
value  of  the  services  rendered  up  to  the  time  of  the  breach  of  the  contract  and  is  not 
restricted  to  the  lower  rate.®** 

Where  a  person  performs  services  under  a  void  contract,  or  one  that  cannot  for 
any  reason  be  enforced,  his  recovery  therefor  should  be  measured  by  the  value  of 
the  services  performed. ^^ 

(§4)  H.  Promise  of  marriage. — For  breach  of  a  marriage  promise,  there  may 
be  recovered  such  a  sum  as  will  fairly  compensate  plaintiff  for  defendant's  failure  to 


70.  Hattiesburg  Compress  Co.  v.  John- 
son   (Miss.)    33    So.    654. 

71.  School  Dist.  v.  McDonald  (Neb.)  94 
N.  W.  829;  V.'ood  v.  Wack  (Ind.  App.)  67 
N.    E.    562. 

72.  Wilson  v.  Borden,  68  N.  J.  Law,  627. 
In  an  action  by  a  sub-contractor  against  a 
contractor  for  damages  caused  by  prevent- 
ing the  performance  of  the  contract  to  put 
in  a  heating  apparatus,  the  damages  may 
include  the  profits  that  would  have  accrued 
to  the  sub-contractor  from  a  full  perform- 
ance of  his  contract,  with  interest  from 
the  time  of  the  contractor's  refusal  not  de- 
ducting therefrom  the  commissions  paid  by 
the  subcontractor  to  the  agent  to  obtain 
the  contract — Peck-Hammond  Co.  v.  Heif- 
ner,    136   Ala.    473. 

73.  McKnight  v.  Bertram  Heating  & 
Plumbing  Co.,   65   Kan.   859.   70   Pac.   345. 


74,  75.  Latimer  v.  New  York  Cotton  Mills, 
66  S.   C.   135. 

76.  Griffin  v.  Brooklyn  Ball  Club,  174  N. 
Y.    535. 

77.  Latimer  v.  New  York  Cotton  Mills. 
66  S.  C.  135. 

78.  Hughes  V.  School  Dist.  No.  37,  66  S. 
C.    259. 

79.  Stone   V.   Bancroft    (Cal.)    72    Pac.    717. 
SO.     Davidson    v.    Laughlin,    138    Cal.    320,. 

71   Pac.   345. 

81.  Banta  v.  Banta,  84  App.  Div.  (N.  Y.) 
138.  In  an  action  on  a  quantum  meruit  for 
services  as  a  clerk  where  evidence  has  been 
received  as  to  salary  paid  plaintiff's  prede- 
cessor, it  is  proper  to  charge  that  the  jury 
would  not  be  bound  by  such  salary,  but 
could  award  what  the  services  w^ere  fairly 
and  reasonably  w^orth — Meislahn  v.  Irving.- 
Nat.    Bank,    172    N.    Y.    631. 


§   5A 


TORTS. 


849 


marry  her  and  for  any  mortification  of  feelings  suffered  on  account  thereof.^'  The 
pecuniary  status  of  defendant  may  be  shown  to  establish  the  injury  sustained  by 
the  breach/^  and  this  intends  the  actual  pecvmiary  circiunstances  and  not  general 
reputation  for  wealth.®* 

§  5.  Measure  and  elements  of  damages  for  torts.  A.  Miscellaneous  torts. 
Injuries  to  animals. — The  market  value  of  an  animal  killed  by  a  railroad  train  is 
that  of  the  place  and  time  of  the  accident.^^  That  the  animal  was  well  broken 
may  be  shown  as  bearing  on  the  extent  of  the  loss.^® 

Alienation  of  affections. — In  an  action  for  the  alienation  of  the  affections  of 
a  husband,  the  financial  condition  of  defendant  may  be  shown.®^ 

Obstruction  of  highways. — For  obstruction  of  a  right  of  way  appurtenant  to  a 
farm,  the  measure  of  damages  is  the  difference  in  the  rental  value  with  and  without 
the  way  and  this  though  the  farm  is  not  rented.®* 

False  imprisonment. — Plaintiff  may  recover  the  expenses  reasonably  incurred 
in  procuring  his  discharge,  for  his  loss  of  time,  for  his  physical  and  mental  suffer- 
ing, and  for  humiliation  which  the  arrest  and  incarceration  may  have  occasioned 
him.®^  Exemplary  damages  are  not  recoverable  unless  the  arrest  was  accompanied 
with  malice,  gross  negligence,  or  other  circumstances  of  legal  aggravation.*"  Where 
exemplary  damages  are  claimed,  defendant  may,  in  mitigation  of  such  damages, 
show  resistance  by  plaintiff  and  any  relative  circumstances  showing  reasonable  prov- 
ocation for  resorting  to  force  in  making  the  arrest.®^  Where  an  arrest  is  illegal 
only  because  the  officer  having  the  warrant  is  not  present,  but  the  arrest  is  made 
by  his  direction,  damages  may  be  recovered  only  to  the  time  when  the  lawful  officer 
takes  the  prisoner  into  his  custody.®^  For  assault  and  false  imprisonment,  there 
may  be  a  recovery  for  physical  and  mental  pain  including  humiliation.®^ 

Malicious  prosecution. — For  malicious  prosecution  there  may  be  a  recovery  for 
loss  of  time,  attorney's  fees  paid  to  obtain  acquittal  or  release,  and  injuries  to  feel- 
ings and  reputation.®*  There  may  be  no  recovery  for  peril  to  plaintiff's  life  by  his 
imprisonment  in  jail,  as  life  is  not  necessarily  imperiled  by  incarceration  in  a  jail.®' 

Infringements  of  patents  and  trade  marks  and  unfair  competition. — For  in- 
fringement of  a  patent,  recovery  is  limited  to  damages  clearly  and  strictly  proved.®" 
The  profits  recoverable  for  unfair  competition  are  governed  by  the  same  rule  as  in 


82.  Grubbs  V.  Pence.  24  Ky.  L.  R.  2183, 
73   S.   W.   785. 

S3.     Birum    v.    Johnson,    87    Minn.    362. 

84.  Johansen  v.  Modahl  (Neb.)  94  N.  W. 
532. 

85.  Central  of  Georgia  Ry.  Co.  v.  Main, 
135    Ala.     451. 

86.  Southern  Kansas  Ry.  Co.  v.  Cooper 
(Tex.    Civ.    App.)    75    S.    W.    328. 

87.  Love  V.  Love  (Mo.  App.)  73  S.  W. 
255. 

88.  Hey  v.  Collman,  78  App.  Div.  (N.  Y.) 
584. 

89.  Petit  V.  Colmary  (Del.)  55  Atl.  344. 
Loss  of  time  is  sufficiently  pleaded  by  an 
allegation  that  the  plaintiff  was  deprived 
of  his  liberty — Young  v.  Gormley  (lovv^a) 
94  N.  W.  922.  In  actions  for  false  impris- 
onment against  officer  and  one  causing  ar- 
rest, there  may  be  a  recovery  for  wounded 
pride,  humiliation  and  mortification  from  a 
public  arrest — Harness  v.  Steele,  159  Ind. 
286. 

90.  Kelly  v.  Durham  Traction  Co..  132 
N.   C.    3G8. 

91.  Petit    V.    Colmary    (Del.)    55    Atl.    344. 

92.  McCullough  V.  Greenfield  (Mich.)  95 
N.   W.    532. 


93.  Golibart  v.  Sullivan,   30  Ind.  App.   428. 

94.  Ruth  v.  St.  Louis  Transit  Co.  (Mo. 
App.)  71  S.  W.  1055.  Injury  to  reputation — 
Lord  V.  Guyot,  30  Colo.  222,  70  Pac.  683. 
Mental  suffering — Cohn  v.  Saidel,  71  N.  H. 
558.  For  malicious  prosecution  of  an  at- 
tachment suit,  evidence  is  admissible  to 
show  damages  sustained  by  reason  of  being 
unable  to  dispose  of  attached  property — 
Lord  V.   Guyot,   30  Colo.   222,   70   Pac.   683. 

9.1.  Kansas  &  T.  Coal  Co.  v.  Galloway 
(Ark.)    74   S.    W.    521. 

96.  Jennings  v.  Rogers  Silver  Plate  Co., 
118  Fed.  339.  Where  a  patent  is  for  a  par- 
ticular part  of  a  machine  it  Is  not  necessary 
to  ascertain  profits  of  the  whole  machine 
but  it  must  be  shown  what  portion  of  the 
profits  is  due  to  the  particular  invention 
secured  by  the  patent  in  suit — Lattlmore  v. 
Hardsocg  Mfg.  Co.  (C.  C.  A.)  121  Fed.  986. 
Profits  from  the  manufacture,  sale  and  leas- 
ing of  patented  machines,  are  too  conjec- 
tural to  form  a  basis  for  the  recovery  of 
damages  wliere  there  were  no  averments 
that  the  machines  were  in  use  or  that  there 
was  any  demand  for  them  or  that  their 
manufacture,  sale  or  leasing  was  profit- 
able or  otherwise — Doane  v.  Preston  (Mass.) 
67  N.  E.  867, 


Cur.   Law-— 54. 


85) 


DAMAGES. 


§  ^B 


•ises  of  infringement  of  trade  marks  and  are  not  limited  to  those  accruing  from 
sales  in  which  it  is  showTi  that  the  customer  was  actually  deceived,  but  include  all 
profits  made  on  goods  sold  in  a  simulated  package.^^  Under  the  Iowa  label  law, 
there  can  be  no  recovery  of  profits,  unless  it  is  shown  that  defendants  acted  in  bad 
faitli,^^  and  clear  proof  of  the  damages  or  profits  is  required.®^ 

Liahiliti/  of  corporate  officers  for  conspiracy. — In  an  action  for  damages  for 
conspiracy  by  the  officers  of  a  corporation  to  wreck  the  same,  the  measure  of  dam- 
ages is  the  value  of  the  property  and  franchise  of  the  corporation  as  it  existed  be- 
fore the  overt  acts  complained  of  producing  insolvency,  less  the  amount  which  the 
property  actually  brought  on  foreclosure  sale.^ 

(§  5)  B.  Loss  of,  or  injuries  to,  property. — For  injury  to  a  vehicle  injured  by 
collision,  there  may  be  a  recovery  of  the  expenses  for  repairs,-  together  with  cost  of 
removing  the  wreck  and  storage  while  arrangements  for  repairs  were  being  made  and 
the  reasonable  value  of  its  use  for  such  time.^  For  injuries  to  machinery,  there 
may  be  a  recovery  of  the  difference  in  value  before  and  after  the  injury  or  if  it  can 
be  restored,  the  reasonable  cash  value  of  making  repairs  and  the  reasonable  cash 
value  of  its  use  during  the  time  of  making  the  repairs.*  The  recovery  for  repairs 
is  limited  to  necessary  repairs  and  the  reasonable  amount  therefor.^  The  measure 
of  damages  for  injuries  to  stock  caused  by  feeding  impure  meal  furnished  by  de- 
fendant is  the  difference  between  the  market  value  of  the  stock  at  the  place  where 
the  injury  occurred  just  before  and  just  after  they  were  made  sick  by  eating  the 
meal.* 

For  injuries  to  a  yacht  there  may  be  recovered  the  amount  paid  for  wages  and 
provisions  for  the  crew  during  the  period  of  repairs,  where  the  presence  of  the  crew 
was  necessary  to  care  for  the  vessel,^  but  not  demurrage  unless  actual  pecuniary 
loss  is  shown.*  Where  both  vessels  were  in  fault  in  the  collision  and  the  damages 
are  divided,  interest  is  not  recoverable  as  an  element  of  damages.*  Where  the  libel- 
ant of  a  vessel  is  entitled  to  damages  for  its  detention  for  repairs,  he  may  recover 
interest.***  For  injury  to  a  dredge  in  a  collision  there  may  be  no  recovery  of  the 
salary  of  the  superintendent  in  charge  of  the  dredge  work  during  the  time  of  re- 
pairing the  dredge,  where  he  attended  to  his  regular  duties  in  addition  to  overseeing 
the  repairs.** 

The  measure  of  damages  for  change  of  grade  is  the  difference  between  the 
market  value  of  the  lots  immediately  before  the  grading  of  the  street  and  the  value 
after  the  injury  was  complete,*^  taking  into  consideration  the  value  of  the  improve- 
ments to  the  property  itself.*^  The  damage  to  abutting  property  by  the  construc- 
tion of  a  street  railway  above  the  street  grade  is  the  difference  between  the  fair  mar- 
ket value  of  the  property  immediately  before  the  tracks  of  the  railway  were  so  raised 
and  its  fair  market  value  after  its  tracks  were  changed,**  excluding  benefits  from 
the  railroad  to  the  property  involved  of  a  general  benefit  to  all  other  property  in 


07.  N.  K.  Falrbank  Co.  v.  Windsor,  118 
Fed.    96. 

OS.  Code,  Iowa,  §  5050 — Beebe  v.  Toler- 
ton    &    Stetson    Co.,    117    Iowa.    593. 

00.  Beebe  v.  Tolerton  &  Stetson  Co.,  117 
Iowa,    593. 

1.  Niles  V.  New  York  Cent.  &  H.  R.  R. 
Co.    (N.    Y.)    68   N.    E.    142. 

2.  San  Antonio  Traction  Co.  v.  Upson 
(Tex.   Civ.   App.)    71    S.    V\^    565. 

3.  Moore  v.  Metropolitan  St.  Ry.  Co.,  82 
N.    Y.    Supp.    778. 

4.  Davidson  v.  Chicago  &  A.  Ry.  Co.  (Mo. 
App.)   71  S.  "W.  1069. 

5.  Rock  V.  Interurban  St.  Ry.  Co.,  40 
Misc.    (N.    Y.)    664. 


6.  Houston    Cotton    Oil    Co.    v.    Trammell 
(Tex.)    74   S.   W.    899. 

7,  8.     Fisk  V.  New  York,  119  Fed.  256. 
O.     The    Itasca,    117    Fed.    885. 


Harrison    v.    Hughes,    119    Fed.    997. 

The    Itasca,    117    Fed.    8S5. 

Robinson    v.    St.    Joseph,    97    Mo.    App. 


10. 
11. 
12. 

503. 

13.  Chicago  v.  McShane,  102  111.  App. 
239;  Village  of  Barrington  v.  Meyer,  103 
111.  App.  124;  Chicago  v.  Anglum,  104  111. 
App.    188. 

14,  15.  Farrar  v.  Midland  Elec.  Ry.  Co. 
(Mo.  App.)    74  S.  W.  500. 


§  SB 


INJURY  TO  PROPERTY. 


851 


the  vicinit}'."  The  measure  of  damages  for  opening  a  street  along  private  prop- 
erty is  the  difference  in  the  market  vahie  of  the  property  with  the  improvement  and 
without  it,  and  the  city  may  not  offset  any  future  increase  in  the  value  of  part  of 
the  property  in  common  with  the  public  because  of  the  improvement,^®  and  the 
jury  may  take  into  consideration  the  fact  that  the  market  value  of  the  land  may 
be  injuriously  affected  by  reason  of  the  cost  of  other  street  improvements  that  may 
be  charged  on  the  land."  One  whose  access  from  a  public  street  has  been  cut  off 
for  several  months  while  it  was  being  located  anew  and  improved  may  recover  for 
Ipss  of  rent  from  the  tenements  and  a  decrease  of  their  rental  value  for  such  time.^* 
The  question  of  damages  to  property  caused  by  the  construction  of  street  improve- 
ments is  for  the  jury.^® 

The  recovery  for  damages  to  a  building  is  the  cost  of  placing  the  building  in 
as  good  condition  as  it  was  before  the  damage,-"  and  where  destroyed,  the  owner  may 
recover  the  cost  of  removing  the  debris  under  orders  of  the  authorities.^^  For 
injuries  to  a  building  by  failure  of  a  contractor  of  an  adjoining  excavation  to  pro- 
tect the  foundation  of  the  building,  the  measure  is  the  actual  damage  to  the  prop- 
erty with  interest  for  delay  in  paying  same.^^  Where  the  erection  of  a  building 
was  prevented  by  encroachment  of  adjoining  landowner  and  the  price  of  lumber 
rose  in  the  meantime,  the  owner  may  recover  the  difference  between  the  contract 
price  of  the  lumber  and  the  price  he  was  later  required  to  pay  for  the  same,^'  and 
the  amount  paid  a  watchman  to  guard  and  protect  a  temporary  structure  during  the 
delay.-* 

It  is  the  face  value  of  treasury  notes  destroyed  by  fire  while  the  notes  were 
in  custody  of  an  officer,  and  not  the  cost  to  the  United  States  government  of  issuing 
new  notes,  that  is  the  measure  of  damages  for  their  loss.^' 

For  injury  to  pasture  lands  by  a  fire,  the  measure  of  damages  is  the  difference 
in  the  value  of  the  land  immediately  before  and  after  the  fire.^®  For  destruction 
of  a  fence  by  fire  there  may  be  recovered  the  amount  necessary  to  construct  a  fence 
equal  to  the  one  destroyed.^^  Fruit  trees  and  hedges  are  to  be  regarded  as  part  of 
the  realty  in  determining  damages  for  their  destruction.-^ 

The  measure  of  damages  for  injury  to  a  crop  is  the  difference  between  the  value 
of  the  crop  just  before  and  just  after  the  damage.  In  speaking  of  the  value  of  the 
growing  crop  at  the  time  of  the  injury,  what  is  meant  is  its  value  for  the  purpose 
of  continuing  its  cultivation  to  maturity,  for,  in  most,  if  not  in  all  cases,  it  will  be 
valueless  for  any  other  purpose.-® 

For  injuries  caused  by  the  wrongful  discharge  of  surface  water  on  the  owner's 
premises,  there  may  be  a  recovery  of  the  actual  damages  sustained  up  to  the  be- 


16.  City  of  Meridian  v.  Higgins  (Miss.) 
33    So.    1. 

17.  De  BenneviUe  v.  Philadelphia,  204  Pa. 
51. 

18.  Munn  v.   Boston    (Mass.)    67  N.   E.   312. 

19.  Board  of  Councilmen  v.  Howard,  25 
Ky.   L.   R.   Ill,  74  S.  W.   703. 

20.  Fitz  Simons  &  Connell  Co.  v.  Braun, 
199    III.    390. 

21.  McPhillips  V,  Fitzgerald,  76  App.  Div. 
(N.    T.)    15. 

23.     Irvine    v.    Smith,    204    Pa.    58. 
23,  24.     Barnes  v.  Berendes   (Cal.)    72  Pac. 
406. 

25.  Smythe  v.  United  States,  188  U.  S. 
156,    47    Law.    Ed.    425. 

26.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Chit- 
tim  (Tex.  Civ.  App.)  71  S.  W.  294;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Hall  (Ark.)  74  S.  W. 
293.  For  destruction  of  grass  the  recov- 
ery is  limited  to  the  reasonable  market  value 


of  grass  at  the  time  of  its  destruction,  and 
if  it  had  no  market  value,  then  its  value  in 
view  of  the  use  to  which  it  was  put — Gal- 
veston, H.  &  S.  A.  Ry.  Co.  V.  Chittim  (Tex. 
Civ.    App.)    71    S.    W.    294. 

27.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Chit- 
tim   (Tex.   Civ.  App.)    71  S.  W.   294. 

28.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Perry,    65    Kan.    792,    70    Pac.    876. 

29.  Raywood  Rice  Canal  &  Mill.  Co.  v. 
Langford  (Tex.  Civ.  App.)  74  S.  W.  926. 
In  ascertaining  the  value  of  growing  crops, 
proof  must  be  heard  either  as  to  the  mar- 
ket price  or  its  intrinsic  worth  and  it  fol- 
lows that  any  witness  who  undertakes  to 
speak  intelligently  as  to  its  value  must  base 
his  figures  on  a  sound  estimate  of  what  the 
crops  would  probably  produce  if  well  cul- 
tivated and  uninjured  and  to  deduct  from 
that  result,  the  cost  of  cultivating  and  mar- 
keting— Id. 


853 


DAMAGES. 


§  5C 


ginning  of  the  action  and  the  injured  party  is  not  limited  to  the  di  (Terence  between 
the  value  of  the  property  just  before  and  just  after  the  injury.^**  It  is  not  neces- 
sary to  a  recovery  for  damages  to  land  from  an  overflow  caused  by  an  embankment 
built  with  inadequate  provision  for  carrying  off  water,  that  the  particular  damage 
caused  should  be  within  the  anticipation  of  reasonably  intelligent  and  prudent  per- 
sons.'^ For  overflows,  the  damage  is  the  difference  between  the  market  value  of 
the  land  before  and  immediately  after  the  overflow,  and  this  rule  applies  to  suc- 
cessive overflows  if  there  were  more  than  one.'^  For  withdrawal  of  waters  from 
land,  the  measure  of  damages  is  the  diminution  in  the  rental  value  caused  thereby 
and  not  the  loss  of  profits  on  crops  and  expenses  incidental  to  the  loss  of  water,'* 
and  in  an  action  for  injuries  to  land  caused  by  the  diversion  of  water,  the  difference 
in  the  value  of  land  before  and  after  the  injury  may  be  shown. ^*  For  injuries  to  a 
farm  caused  by  the  discharge  of  sewage  over  the  land,  the  damages  cannot  exceed 
the  rental  value  of  the  land.^^ 

(§5)  C.  Maintaining  nuisance. — In  an  action  for  damages  for  maintaining  a 
nuisance,  the  recovery  may  include  damages  for  discomfort  in  the  occupancy  of  the 
home.'°  In  an  action  to  abate  a  nuisance,  the  reasonable  cost  of  its  removal  may 
be  recovered. ^^  A  tenant  suing  for  damages  for  a  nuisance  may  recover  the  depre- 
ciation in  the  rental  value  of  the  premises  occasioned  thereby.'^ 

Where  a  nuisance  is  permanent  and  continuing,  there  may  be  a  recovery  in 
one  action  of  all  the  damages  past  and  future  which  the  maintenance  of  the 
nuisance  will  occasion.^^  In  the  case  of  a  permanent  injury  to  a  freehold  caused 
by  the  maintenance  of  a  nuisance,  the  measure  of  damages  is  the  difference  in 
market  value  before  and  after  the  construction  of  the  works  constituting  the 
nuisance.*"  There  can  be  no  recovery  on  tlie  theory  that  a  city  will  continue  to 
Doaintain  the  nuisance.*^  ^Vhere  the  market  value  of  property  is  increased  by  the 
wrongful  act  of  a  city,  it  will  still  be  liable  for  actual  damages  resulting  from  in- 
juries therefrom  to  the  property.*^  For  injuries  occasioned  by  a  public  nuisance, 
the  damages  are  not  the  value  of  the  use  of  the  property  when  not  devoted  to  any 
use  whatever,  but  the  value  of  the  use  when  occupied  for  the  purpose  for  which  the 
property  was  suitable  in  its  then  condition.*^ 

A  petition  for  damages  resulting  from  the  location  of  a  pesthouse  in  the  neigh- 
borhood of  plaintiff's  farm,  averring  the  fears  of  persons  dealing  with  the  plaintiff, 
must  show  that  the  fears  of  such  persons  are  well  grounded.** 


30.  Ready  v.  Missouri  Pac.  Ry.  Co.  (Mo. 
App.)  72  S.  W.  142. 

31.  Schmeckpepper  v.  Chicago  &  N.  W. 
Ry.  Co.  (Wis.)  93  N.  W.  533.  In  an  action 
for  damages  for  alteration  of  a  water  level 
so  as  to  make  lands  less  fit  for  crops,  there 
can  be  no  recovery  for  loss  of  crops  planted 
with  the  knowledge  that  they  would  fail 
— Westphal  V.  New  York,  75  App.  Div.  (N. 
Y.)    252. 

32.  Houston  &  T.  C.  R.  Co.  v.  Lensing 
(Tex.  Civ.  App.)  75  S.  "W.  826;  Ready  v. 
Missouri  Pac.  Ry.  Co.  (Mo.  App.)  72  S.  W. 
142. 

33.  Klnsey  v.  New  York,  75  App.  Div. 
(N.   Y.)    262. 

34.  Briscoe  v.  Young,  131  N.  C.  386;  Cole- 
man  V.   Bennett    (Tenn.)    69    S.   W.   734. 

35.  $30,000  is  not  an  excessive  recovery 
for  damages  to  land  caused  by  a  continuing 
nuisance,  it  being  stipulated  that  plaintiff 
entitled  to  damages  should  recover  perma- 
nent damages,  where  defendant's  own  evi- 
dence was  that  the  property  damaged  was 
worth  at  least  $100,000 — Hentz  v.  City  of 
Mt.    Vernon.    78    App.    Div.    (N.    Y.)    515. 

36.  Daniel   v.'  Ft.   Worth   &   R.   G.    Ry.   Co. 


(Tex.)  72  S.  W.  578;  Louisville  &  N.  Ter- 
minal Co.  V.  Jacobs  (Tenn.)  72  S.  W.  954; 
Houston.  E.  &  W.  T.  Ry.  Co.  v.  Charwaino 
(Tex.    Civ.    App.)    71    S.    W.    401. 

37.  City  of  Mineral  Wells  v.  Russell  (Tex. 
Civ.   App.)    70   S.    W.    453. 

38.  Ely  v.  Edison  Elec.  Illuminating  Co., 
172   N.   Y.    1,   58   L.   R.  A.    500. 

30.  Langley  v.  City  Council  of  Augusta 
(Ga.)  45  S.  E.  486.  Where  a  nuisance  caused 
by  the  faulty  construction  of  a  sewer  is  a 
continuing  nuisance,  plaintiff  is  entitled  to 
all  damages  within  the  statutory  limits  not 
previously  covered  by  him.  though  the  orig- 
inal cause  for  establishing  the  nuisance  is 
barred — Bennett  v.  City  of  Marion  (Iowa) 
93    N.   TV.    558. 

40.  Langley  v.  City  Council  of  Augusta 
(Ga.)  45  S.  E.  486;  Missouri,  K.  &  T.  Ry 
Co.  V.  McGehee  (Tex.  Civ.  App.)  75  S.  W. 
841. 

41,  42.  Langley  v.  City  Council  of  Au- 
gusta   (Ga.)    45    S.   E.   486. 

43.  Pettlt  V.  Incorporated  Town  of  Grand 
Junction    (Iowa)    93    N.    W^.    381. 

44.  McKay  v.  Henderson,  24  Ky.  L.  R. 
1484,    71   S.   W.   625. 


g  5E 


TRESPASS  AND  CONVERSION. 


833 


(§5)  D.  Trespass  on  lands. — For  the  unlawful  occupancy  of  land  with  a 
tramway,  the  measure  of  damages  is  the  rental  value  of  land  actually  occupied  togeth- 
er with  the  decrease  in  the  rental  value  of  the  remainder  of  the  land  caused  by  its  ex« 
istence.*^  Defendant's  abusive  and  violent  conduct  in  an  illegal  trespass  may  be  con- 
sidered on  the  question  of  mental  suffering  of  plaintiff.*"  In  some  states,  the  stat- 
utes allow  a  recovery  of  all  damages  down  to  the  time  of  the  trial.*^  The  measure 
of  damages  for  waste  by  removing  timber  from  land  is  the  diminished  value  of  the 
land  by  such  removal  and  not  the  value  of  the  timber  in  its  manufactured  state.** 

In  an  action  for  an  illegal  entry  into  plaintiff's  place  of  business  and  injury  to 
the  contents,  plaintiff  may  recover  for  injuries  directly  caused  to  his  business  by 
the  entry.*®  Where  property  is  taken  by  its  true  owners,  the  value  of  the  property 
is  not  to  be  regarded  as  element  of  the  damages.^** 

(§  5)  E.  Conversion. — In  an  action  for  conversion,  the  measure  of  damages  is 
the  value  of  the  article  at  the  time  of  the  conversion,  with  interest.^^  Attorney's  fees 
are  not  recoverable  as  actual  damages  in  action  for  conversion,^^  For  conversion 
of  coal  by  a  carrier,  the  measure  of  damages  is  the  value  of  the  coal  at  its  destina- 
tion and  not  at  the  mines.°^  The  measure  of  damages  for  the  taking  of  ore  or 
timber  from  another's  land  without  right  is  the  enhanced  value  of  the  property 
when  finally  converted  to  the  trespasser's  use;  where  the  property  is  taken  through 
mistake  or  honest  belief  that  the  trespasser  is  acting  within  his  rights,  the  measure 
is  the  value  of  the  property  at  the  time  of  severance.''*  The  measure  of  damages 
for  the  conversion  of  property  by  an  innocent  purchaser  from  an  intentional  tres- 
passer is  the  value  of  the  property  at  the  time  of  the  puroliase.'*^  A  pledgor  may 
recover  damages  sustained  by  wrongful  sale  of  a  pledge,  taking  into  account  the 
injury  done  to  the  property  and  expenses  in  getting  it  back.***  In  an  action  for 
conversion  of  goods  sold  under  contract  of  conditional  sale,  proof  of  the  price  the 
vendee  agreed  to  pay  is  not  proof  of  the  value  of  the  goods.^^     Evidence  of  the 


Gildersleeve  v.  Overstolz,  90  Mo.  App. 


45.  Leigh  v.  Garysburg  Mtg.  Co.,  132  N. 
C.    167. 

46.  Hickey  v.  Welch,   91  Mo.  App.   4. 

47.  Pub.  Acts  1895,  p.  297,  C.  224 — Dale 
V.  Southern  Ry.  Co.,  132  N.  C.  705.  Under 
an  act  allowing  recovery  of  damages  for  a 
continuing  trespass  down  to  the  day  of  the 
trial  Instead  of  obliging  party  to  bring  sec- 
ond action,  this  method  cannot  be  used  to 
bring  in  a  subsequent  cause  of  action  aris- 
ing between  issue  of  writ  and  trial,  though 
the  trespass  is  of  the  same  character  as 
that  alleged  in  the  first  action — Pantall  v. 
Rochester  &  P.  Coal  &  Iron  Co.,  204  Pa.  158. 

48.  Nelson  v.  Churchill  (Wis.)  93  N.  W. 
799. 

49. 
518. 

50.  Pabst  Brew.  Co.  v.  Greenberg  (C.  C. 
A.)    117    Fed.    135. 

51.  Janeway  v.  Burton,  201  111.  78;  Daugh- 
erty  v.  Lady  (Tex.  Civ.  App.)  73  S.  W.  837; 
Midville.  S.  &  R.  B.  R.  Co.  v.  Bruhl  (Ga.) 
43  S.  E.  717;  Hunt  v.  Boston  (Mass.)  67 
N.  B.  244;  State  v.  Sullivan  (Mo.  App.)  74 
S.  W.  417;  Lynch  v.  White  (Tex.  Civ.  App.) 
73  S.  W.  834.  In  assessing  damages  for 
conversion  It  is  proper  for  the  jury  to  con- 
sider not  only  the  value  of  the  property  at 
the  time  of  cenversion  but  also  the  time 
which  has  elapsed  since  the  conversion  to 
determine  the  fair  compensation  to  plain- 
tiff for  his  injury — Davis  v.  Bowers  Granite 
Co.  (Vt.)  54  Atl.  1084;  Geo.  D.  Mashburn  & 
Co.    v.    Dannenberg    Co.    (Ga.)    44    S.    E.    97. 

.'52.  Lee  v.  McDonnell  (Tex.  Civ.  App.)  72 
S.   W.    CI 2. 


53.  Blackmer  v.  Cleveland,  C,  C.  &  St. 
L.  Ry.  Co.  (Mo.  App.)  73  S.  W.  913.  Puni- 
tive damages  may  be  recovered  where  the 
consignee  had  contracted  for  its  delivery  to 
customers  and  there  was  no  evidence  that 
the  carrier  was  compelled  to  use  the  coal 
or  stop  running  its  trains,  evidence  show- 
ing a  willful  taking  without  regard  to 
plaintiff's  rights  and  the  carrier  may  not 
deduct  the  freight  charges  from  the  value 
of   the   coal   at   point   of   destination — Id. 

54.  United  States  v.  Homestake  Min.  Co. 
(C.  C.  A.)  117  Fed.  481.  Where  defendant 
purchased  timber  of  trespassers,  who  cut 
the  same  on  plaintiff's  land,  some  being  pur- 
chased before  and  some  after  notice  of  the 
trespass,  the  measure  of  damages  Is  for 
the  timber  purchased  before  notice.  Its 
value  as  it  stood  on  the  land,  and  for  that 
purchased  after  notice,  the  value  in  its 
manufactured  form  without  deduction  for 
the  expense  of  cutting  and  preparing  for 
market  in  tlie  absence  of  facts  showing  spe- 
cial injury  to  the  land  by  the  removal  of 
the  timber — Holt  v.  Hayes  (Tenn.)  73  S. 
W.  111.  In  trover  for  timber  cut  in  good 
faith  by  a  trespasser  the  measure  of  dam- 
ages is  the  value  of  the  timber  at  the  time 
of  the  conversion  less  the  amount  he  add- 
ed to  its  value — Anderson  v.  Besser  (Mich.) 
91    N.    W.    737. 

.^5.  Potter  V.  United  States  ( D.  C.  A.) 
122    Fed.    49. 

56.  Schaaf  v.    Fries.    90   Mo.   App.    111. 

57.  Mott  Iron  Works  v.  Reilly,  39  Misc. 
(N.    Y.)    833. 


854 


DAMAGES. 


§  5F 


par  value  of  converted  stock  is  insufEcient  on  the  question  of  its  value  at  the  time 
of  conversion."* 

(§  5)  F.  Wrongful  talcing  or  detention  of  property. — The  measure  of  dam- 
ages for  an  unlawful  seizure  of  goods  under  an  execution  subsequently  quashed  is  the 
market  value  of  the  goods  at  the  time  and  place  of  the  seizure,  less  the  market  value 
at  the  time  of  their  return.'"  Attorneys'  fees  necessarily  expended  may  be  recov- 
ered.*"* Where  defendant  in  execution  was  not  allowed  to  point  out  the  property,  the 
measure  is  the  value  of  the  goods  seized  at  time  of  levy  less  amount  of  judgment.®^ 
For  the  sale  of  exempt  property,  where  no  special  damages  are  alleged,  the  measure  is 
the  value  of  the  property  with  interest  thereon  from  the  date  of  the  levy.®^ 

In  an  action  for  wrongful  attachment  of  a  stock  of  goods,  the  rent  of  the  build- 
ing is  recoverable  for  the  time  the  goods  are  in  custody.®*  Lost  profits  are  not 
recoverable,  tlie  allowance  of  legal  interest  on  the  value  of  the  goods  taking  the  place 
of  such  profits."*  The  measure  of  a  debtor's  damages  for  loss  of  time  is  what  his 
time  would  have  been  worth  in  his  particular  business  and  not  what  he  would  have 
been  able  to  earn  in  other  employments.®^  Injury  to  credit  or  reputation  in  busi- 
ness must  be  shown  in  order  to  justify  allowance  therefor."®  In  the  absence  of 
any  evidence  on  the  question,  the  valuation  of  the  officers  will  be  conclusive.'^ 
Where  goods  attached  are  sold  by  order  of  the  court  as  perishable  and  the  money  de- 
posited in  court,  a  judgment  for  the  value  of  the  goods  instead  of  the  amount  in 
court  is  erroneous.®* 

In  replevin  of  domestic  animals,  the  amount  of  damages  is  determined  by  add- 
ing to  the  value  of  the  use  of  the  usable  property  its  usable  value  from  the  time 
of  taking  to  the  date  of  judgment  and  interest  on  the  value  of  the  rest  of  the  prop- 
erty for  the  same  time.®*  The  cost  of  caring  for  and  feeding  other  animals  during 
the  time  of  detention  may  not  be  recovered  on  the  ground  that  plaintiff  intended 
to  ship  all  the  stock  to  market  in  one  car  and  that  all  were  necessary  to  make  a 
carload;  such  damages  are  too  remote  and  speculative.''*'  Interest  is  recoverable 
from  the  time  of  demand,  though  the  property  is  in  the  possession  of  the  sheriff 
under  order  of  court.^^  Where  grain  is  wrongfully  taken  in  replevin  and  con- 
sumed before  trial,  the  value  rising  in  the  meantime,  the  measure  of  damages  is 
the  market  value  of  the  same  quantity  of  grain  of  a  similar  grade  and  quality  at 
the  time  of  the  trial.''^  Where  plaintiff  dismissed  his  suit  after  return  of  the  prop- 
erty, attorney's  fees  and  expenses  incurred  in  preparing  a  defense  to  the  replevin 
suit  are  not  recoverable  in  an  action  on  the  bond.^* 

Damage  for  unlawful  detainer  of  premises  are  recoverable  from  the  date  of 
the  demand  and  not  from  the  date  of  possession,^*  and  the  person  entitled  to  pos- 
session may  recover  the  value  of  use  of  the  premises  for  any  legitimate  and  proper 
purpose  while  he  is  deprived  thereof.'"^  Under  a  code  provision  that  damages  for 
withholding  dower  shall  be  computed,  where  the  action  is  against  the  heirs  from 


58.  Warren  v.  Stlkeman.  84  App.  Dlv.  (N. 
Y.)    610. 

59.  Palmer   v.    Augensteln,    18    App.    D.    C. 
511. 

60.  Deleshaw   v.    Edelen    (Tex.    Civ.   App.) 
72   S.   W.   413. 

61.  Avlndino's    Heirs    v.    Beck    (Tex.    Civ. 
App.)    73    S.    W.    539. 

62.  Morris   v.    Williford    (Tex.    Civ.    App.) 
70   S.    W.    228. 

63.  Lord  v.  Wood    (Iowa)   94  N.  W.   842. 

64.  Moravec    v.    Grell,    78    App.    Div.    146, 
12  N.  Y.  Ann.   Cas.   294. 

65.  Lord    v.    Wood    (Iowa)    94   N.    W.    842. 

66.  Hume    V.  .Netter    (Tex.    Civ.    App.)    72 
8     «V.    865;    Fidelity    &    Deposit   Co.    v.    Buckl 


&   Son   Lumber   Co.,    189   U.   S.    135,    47    Law. 
Ed.    744. 

67.  Geiger  v.  Henry   (Fla.)    32  So.   874. 

68.  Huglies     Bros.     Mfg:.     Co.     v.     Reagan 
(Ind.    T.)    69    S.    W.    940. 

69.  State   Bank   v.   Showers,    65   Kan.    431. 
70  Pac.   332. 

70.  Haas   V.   Tough    (Kan.)    72   Pac.    856. 

71.  Follett    Wool    Co.    V.    Utica    Trust    & 
Deposit    Co.,    84    App.    Div.    (N.    Y.)    151. 

72.  Schnabel  v.   Thomas    (Mo.   App.)    71   S. 
W.   1076. 

73.  Edwards    v.    Bricker    (Kan.)     71    Pac. 
587. 

74.  Moston    V.    Stow,    91    Mo.    App.    554. 

75.  Curry   v.    Sandusky    Fish    Co.    (Minn.) 
93    N.    W.    896. 


§51 


DECEIT;  PERSONAL  INJURIES. 


855 


the  husband's  death,  but  where  against  any  one  else  from  the  time  when  the  widow 
demanded  her  dower,  the  latter  rule  governs,  though  some  defendants  are  heirs, 
where  the  action  is  against  them  as  beneficiaries  under  a  trust.'^^ 

(§5)  G.  Fraud  or  deceit. — The  measure  of  damages  for  deceit  inducing  a 
transfer  of  property  is  the  difference  between  the  market  value  of  the  property  and 
its  value  as  represented/'' 

(§5)  H.  Libel  and  slander. — Wliere  the  article  was  libellous  per  se,  plaintiff 
is  entitled  to  recover  compensatory  damages  attributable  to  the  publication,'^^  and  is 
not  required  to  show  actual  damages.'^  On  the  question  of  actual  or  compensatory 
damages,  evidence  of  the  standing  of  defendant  suing  for  libel  is  not  important.*" 

( §  5 )  /.  Personal  injuries. — Only  compensatory  damages  can  be  recovered  for 
personal  injuries  resulting  from  negligence,^^  and  these  independent  of  punitive  dam- 
ages should  be  limited  to  compensation  which  consists  in  remuneration  for  loss 
of  time,  necessary  expenditures,  mental  and  physical  suffering  and  permanent 
disability,  where  that  is  shown  as  a  result.*^     There  may  be  a  recovery  for  aucr- 


76.  Code  Civ.  Proc.  N.  Y.  §  1600 — Gorden 
V.   Gorden,   80  App.   Div.    (N.   Y.)    258. 

77.  Deceit  inducing  the  sale  of  corporate 
stock — Warfleld  v.  Clark,  118  Iowa.  69. 
False  representations  as  to  the  condition 
of  property  on  which  plaintiff  had  accept- 
ed a  mortgage  for  part  payment  of  her  own 
property — Lee  v.  Tarplin,  183  Mass.  52.  A 
person  induced  to  lease  a  building  by  false 
representations  as  to  the  amount  to  be  de- 
rived from  letting  rooms  therein,  may  re- 
cover the  difference  betw^een  the  rental  of 
the  premises  as  represented  and  as  in  fact 
existing  le.ss  what  was  due  on  the  lease — 
Prince    v.    Jacobs,    80    App.    Div.    (N.    Y.)    243. 

78.  Mauk   v.    Brundage,    68    Ohio    St,    89. 
Williams    v.    Fuller    (Neb.)    94    N.    W. 


70. 
118. 

80. 
44    S 

81. 


Sun    Life    Assur.    Co.    v.    Bailey    (Va.) 
E.    692. 

City    of  Pueblo   v.   Timbers    (Colo.)    72 
Pac.   105  9. 

82.  Louisville  &  N.  R.  Co.  v.  Mason,  24 
Ky.  L.  R.  1623,  72  S.  W.  27;  Chicago  Ter- 
minal Transfer  R.  Co.  v.  Gruss,  200  111.  195; 
Louisville  &  N.  R.  Co.  v.  Logsdon,  24  Ky. 
L.  R.  1566.  71  S.  W.  905;  Wilman  v.  Peo- 
ple's Ry.  Co.  (Del.  Super.)  55  Atl.  332;  Louis- 
ville &  N.  R.  Co.  V.  Hall,  74  S.  W.  280,  24 
Ky.  L.  R.  2487.  In  an  action  for  assault, 
plaintiff,  being  entitled  to  damages,  is  en- 
titled to  such  a  sum  as  will  reasonably  com- 
pensate him  for  the  Injuries  and  outlays 
made,  including  therein  pain  and  suffering, 
loss  of  bodily  and  mental  power,  capacity 
for  work  and  loss  of  time — Armstrong  v. 
Rhoades  (Del,  Super,)  53  Atl.  435.  A  serv- 
ant may  recover  for  Injuries  in  an  amount 
necessary  to  compensate  him  for  loss  of 
time  and  wages,  pain  and  suffering  in  the 
past  and  such  as  may  come  in  the  future, 
resulting  from  the  accident,  and  also  for 
pecuniary  losses  caused  by  his  diminished 
capacity  to  earn  a  living  in  the  future — 
"Winkler  v.  Philadelphia  &  R.  Ry.  Co.  (Del, 
Super.)    53    Atl.    90. 

Loss  o*  time  and  wassres  may  be  recov- 
ered— Karczewski  v.  Wilmington  City  Ry. 
Co.  (Del.  Super.)  54  Atl.  746;  McAllister  v. 
People's  Ry.  Co.  (Del.  Super,)  Id.  743;  Sachra 
v.  Town  of  Manilla  (Iowa)  95  N.  W.  198, 
Amount  of  earnings — [Metz  v.  Metropolitan 
St.  Ry.  Co.,  82  App.  Div.  (N,  Y,)  168,]  and 
value  of  lost  time  must  be  shown — Stoetzle 
V.  Sweringen,  96  Mo.  App.  592.  It  is  proper 
to   pr(>ve    earnings    in   service    of   a    previous 


employer,  as  furnishing  aata — Southern  Ry. 
Co.  V.  Howell  (Ala.)  34  So.  6.  Where  per- 
manent injuries  are  shown  to  result,  in- 
structions are  not  objectionable  which  tell 
the  jury  that  it  would  not  be  proper  to 
multiply  the  amount  of  plaintiff's  earnings 
by  his  expectancy,  but  it  was  the  province 
)f  the  jury  to  ascertain,  by  the  exercise  of 
heir  own  judgment,  what  would  be  the 
■<resent  cash  value  of  his  earnings,  consid- 
ering the  expectancy  of  life — Chicago  House 
Wrecking  Co.  v.  Birney  (C.  C.  A.)  117  Fed. 
72. 

Impnirment  of  earnins  power.  In  an  ac- 
tion for  personal  injuries  there  may  be  a 
recovery  for  impairment  of  earning  capacity 
— Karczewski  v.  Wilmington  City  Ry.  Co. 
(Del,  Super.)  54  Atl.  746;  McAllister  v.  Peo- 
ple's Ry.  Co.  (Del,  Super,)  Id,  743;  Chesa- 
peake &  O,  Ry.  Co.  V.  Jordan  (Ky.)  76  S. 
W.  145;  International  &  G.  N,  R.  Co.  v, 
Clark  (Tex.)  72  S.  W.  584;  Chicago  &  M. 
TSlect.  Ry.  Co.  v.  Krempel,  103  111.  App.  1; 
Reliance  Textile  &  Dye  Works  v.  Mitchell, 
24  Ky.  L.  R.  1286,  71  S.  W.  425;  Chicago 
City  Ry.  Co.  v.  Fennimore,  199  111.  9.  On 
the  question  of  loss  of  earning  power,  plain- 
tiff may  testify  that  he  was  discharged  from 
the  position  he  obtained  after  the  injury 
on  the  ground  that  he  was  too  slow — South- 
ern Car  &  Foundry  Co.  v.  Bartlett  (Ala.) 
'i4  So.  20.  In  an  action  for  Injuries  to  a 
member  of  a  pilot  association,  it  may  be 
shown  that  the  pilot's  fees  were  turned 
into  an  association  from  which  the  pilot 
received  a  certain  amount  monthly,  as  show- 
ing the  earning  capacity  of  the  injured  per- 
son— Waldie  v.  Brooklyn  Heights  R.  Co., 
78    App.    Div.    (N.    Y.)    557. 

Past  and  future  damng-es.  Past  and  future' 
pain  and  suffering  may  be  recovered  for — 
ivarczewski  v.  Wilmington  City  Ry.  Co.  (Del. 
Super.)  54  Atl.  746;  McAllister  v.  People's 
Ry.  Co.  (Del.  Super.)  Id.  743;  Stanley  v. 
Cedar  Rapids  &  M.  C.  Ry.  Co.  (Iowa)  93 
N.  W.  489;  Heer  v.  Warren-Scharf  Asphalt 
Pav.  Co.  (Wis.)  94  N.  W.  789.  The  recov- 
ery for  future  damages  is  limited  to  those 
shown  with  reasonable  certainty  to  be  a 
consequence  of  the  injury — Chicago,  R.  I. 
&  P.  R.  Co.  V.  McDowell  (Neb.)  92  N.  W. 
121;  Allen  B.  Wrisley  Co.  v.  Burke,  203 
111.  250;  McLain  v.  St.  Louis  &  S.  Ry.  Co. 
(Mo.  App.)  73  S.  W.  909.  Where  it  i§  shown 
that  a  person  was  permanently  injured  and 
as    a   result   has   hernia    curable    only    by   an 


856 


DAMAGES. 


§6 


mented  injuries  to  one  suffering  from  a  disease  at  the  time  of  tte  accident."  In- 
juries to  the  sexual  organs  preventing  performance  of  their  functions  may  be  con- 
sidered in  estimating  damages.^*  An  injured  person  may  testify  as  to  his  own 
estimate  of  the  amount  of  his  damages.®'' 

§  6.  Measure  and  elements  of  damages  for  death  by  wrongful  act. — The  jury 
may  consider  the  number,  age,  and  sex  of  dependent  children,^®  the  value  of  serv- 
ices of  the  deceased  in  the  care,  superintendence,  and  education  of  his  minor 
children,*^  the  amount  he  would  have  expended  for  their  education,*®  liis  age, 


operation  and  Is  partially  paralyzed  and 
has  frequent  attacks  of  vomiting  blood,  the 
jury  may  consider  future  pain  and  suffer- 
ing, though  no  witness  states  that  plaintiff 
will  suffer  in  the  future — Smith  v.  City  of 
Sioux  City  (Iowa)  93  N.  W.  81.  An  in- 
struction allowing  the  jury  to  return  a 
verdict  for  damages  that  plaintiff  would  be 
reasonably  certain  to  suffer  in  future  from 
the  injury  is  not  objectionable  as  allowing 
a  recovery  for  loss  of  time  in  the  future — 
Curtis  V.   McNair   (Mo.)    73   S.  W.   167. 

Sledical  attendance  and  nursing.  The  rea- 
sonable value  of  medical  services  may  be 
recovered — Sachra  v.  Town  of  Manilla  (Iowa) 
95  N.  W.  19S;  Texas  &  P.  Ry.  Co.  v.  Ball 
(Tex.  Civ.  App.)  73  S.  W.  420.  The  amount 
of  the  medical  charges  must  be  proved — 
Halley  v.  Tichenor  (Iowa)  94  N.  W.  472; 
Central  Tex.  &  N.  "W.  Ry.  Co.  v.  Smith  (Tex. 
Civ.  App.)  73  S.  W.  537;  and  also  their  ne- 
cessity and  reasonableness — St.  Louis  South- 
western Ry.  Co.  V.  Highnote  (Tex.  Civ.  App.) 
74  S.  V?'.  920;  Houston.  E.  &  W.  T.  Ry.  Co. 
V.  Charwaine  (Tex.  Civ.  App.)  71  S.  W. 
401;  City  of  Dallas  v.  Moore  (Tex.  Civ.  App.) 
74  S.  W.  95;  San  Antonio  &  A.  P.  Ry.  Co. 
v.  Moore  (Tex.  Civ.  App.)  72  S.  W.  226: 
International  &  G.  N.  R.  Co.  v.  Boykin 
(Tex.  Civ.  App.)  74  S.  W.  93;  Powers  v. 
City  of  St.  Joseph,  91  Mo.  App.  55;  Gulf. 
C.  &  S.  F.  Ry.  Co.  V.  Robinson  (Tex.  Civ. 
App.)  72  S.  "W.  70.  There  may  be  a  re- 
covery, though  bills  have  not  been  paid — 
San  Antonio  Sz  A.  P.  Ry.  Co.  v.  Moore  (Tex. 
Civ.  App.)  72  S.  W.  226;  Hickey  v.  Welch. 
91  Mo.  App.  4;  Curtis  v.  McNair  (Mo.)  73 
S.  "W.  167.  The  question  of  the  reasonable- 
ness of  a  physician's  charge  in  a  bill  ren- 
dered but  not  paid  Is  one  for  the  jury — 
Lampman  v.  Pruning  (Iowa)  94  N.  W.  562. 
The  services  of  a  nurse  may  be  recovered, 
though  she  has  rendered  no  bill — Styles  v. 
Village  of  Decatur  (Mich.)  91  N.  "W.  622. 
There  may  be  a  recovery  of  probable  future 
medical  expenses — Chicago  &  M.  Elect.  Ry. 
Co.  V.  Krempel,  103  111.  App.  1;  but  not 
where  there  is  no  evidence  as  to  their  prob- 
able cost — Missouri.  K.  &  T.  Ry.  Co.  v.  Flood 
(Tex.  Civ.  App.)  70  S.  W.  331.  A  husband 
can  recover  only  the  value  of  his  services 
in  nursing  his  wife  and  not  the  amount 
of  his  salary  lost  thereby — Southern  Ry. 
Co.  v.  Crowder,  135  Ala.  417.  A  recovery 
may  be  had  for  services  of  a  daughter  as 
nurse,  though  the  daughter  stated  that  she 
performed  the  services  as  she  would  for  a 
mother  without  thought  of  being  recom- 
pensed— Beringer  v.  Dubuque  St.  Ry.  Co. 
(Iowa)  91  N.  W.  931.  A  motorman  injured 
In  a  collision  may  recover  for  money  paid 
for  treatment  at  another  hospital  than  the 
one  he  was  taken  to  by  his  employer — Mc- 
Laln  v.  St.  Louis  &  S.  Ry.  Co.  (Mo.  App.) 
73  S.  "W.  909.  Liability  of  a  city  for  per- 
sonal   Injury    Is    a    statutory    one    and     In 


Massachusetts  there  may  be  no  recovery  In 
such  an  action  of  the  amount  expended  for 
doctor's  bills — Nestor  v.  City  of  Fall  River 
(.Mass.)    67    N.    E.    248. 

Mental  suffering:  Mental  suffering  may 
be  taken  in  consideration  in  estimating 
damages  in  a  case  of  physical  injury — Reed 
V.  Maley  (Ky.)  74  S.  W.  1079;  Chesapeake 
&  O.  Ry.  Co.  v.  Jordan  (Ky.)  76  S.  W.  145: 
Louisville  &  N.  R.  Co.  v.  Gordon.  24  Ky. 
L.  R.  1S19,  72  S.  W.  311.  Reasonable  ap- 
prehension of  blood  poisoning — Butts  v.  Na- 
tional Exch.  Bank  (Mo.  App.)  72  S.  W. 
10S3.  Direct  proof  thereof  is  not  required 
where  the  Injury  Is  serious  or  permanent 
or  continues  for  a  long  time — Galveston. 
H.  &  S.  A.  Ry.  Co.  V.  Hubbard  (Tex.  Civ. 
.A.pp.)  70  S.  W.  112.  Where  there  Is  an 
ample  allowance  for  the  injury,  including 
physical  and  mental  suffering,  there  may  be 
no  recovery  for  regret  and  humiliation  that 
party  may  feel  because  of  inability  to  per- 
form household  duties — Linn  v.  Duquesne 
Borough,  204  Pa.  551.  There  may  be  a 
recovery  for  physical  injury  resulting  from 
fright  or  nervous  shock  caused  by  blast- 
ing in  the  neighborhood  of  a  residence, 
where  defendant  had  been  requested  to  con- 
duct the  blasting  so  as  not  to  cause  rocks 
to  be  thrown  into  the  residence — Watkins 
V.  Kaolin  Mfg.  Co.,  131  N.  C.  536,  60  L. 
R.   A.   617. 

Disfigurement:  There  may  be  a  recovery 
for  mental  suft'ering  and  distress  caused  by 
disfigurement — Gray  v.  Washington  Water 
Power  Co.,  30  Wash.  665,  71  Pac.  20S;  Chica- 
go &  M.  Elec.  Ry.  Co.  v.  Krempel,  103  111. 
App.  1. 

Permanency  of  Injuryj  Where  plaintiff 
has  not  recovered  from  an  injury  at  the 
time  of  trial  or  has  been  to  any  extent 
permanently  disabled,  the  Jury  may  take 
into  consideration  such  facts  in  estimating 
the  damages — Palmquist  v.  Mine  &  Smelter 
Supply  Co.,  25  Utah,  257,  70  Pac.  994.  Where 
evidence  as  to  the  extent  of  Injuries  Is 
conflicting,  It  Is  proper  to  leave  the  ques- 
tion to  the  jury  notwithstanding  a  physi- 
cian testifies  that  the  injuries  are  of  a 
trivial  character — Styles  v.  Village  of  De- 
catur   (Mich.)     91    N.    W.    622. 

83.  Jordan  v.  Coulter,  30  Wash.  116;  Jor- 
dan V.  Seattle,   30  Wash.   298.    70   Pac.   743. 

84.  Male  organs — Galveston.  H.  &  S.  A. 
Ry.  Co.  V.  Collins  (Tex.  Civ.  App.)  71  S.  W. 
560.  Female  organs — Brake  v.  Kansas  City 
(Mo.   App.)    75    S.    W.    191. 

85.  Oliver  v.  Columbia,  N.  &  L.  R.  Co., 
65    S.    C.    1. 

86.  Coffeyvllle  Mln.  &  Gas  Co.  v.  Carter. 
65  Kan.   565,   70   Pac.   635. 

87.  Anthony  Ittner  Brick  Co.  v.  Ashby. 
19S  111.  562;  Sternfels  v.  Metropolitan  St. 
Ry.   Co.    (N.   T.)    66   N.  E.   1117. 

88.  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Puente    (Tex.    Civ.    App.)    70    S.    W.    362. 


§  7 


EXCESS    AND   INADEQUACY. 


857 


habits  of  industry,  capacity  for  labor,  and  probable  earnings,'"  the  pecuniary 
condition  of  plaintiff,^**  the  condition  of  health  of  deceased  as  bearing  on  the 
pecuniary  value  of  his  life,"^  and  may  not  be  required  to  consider  the  possibility 
of  deceased  becoming  poor  and  his  children  being  compelled  to  support  him  in 
old  age,®^  nor  may  they  consider  prospective  advancements  in  salary,  dependent 
upon  problematic  conditions.^^  In  some  states  the  recovery  may  include  grief  or 
mental  suffering.***  In  an  action  by  parents  for  the  death  of  a  child,  the  measure 
of  damages  is  the  reasonable  value  of  the  child's  services,^'  and  the  loss  of  its 
society  and  comfort  excluding  any  recovery  for  sorrow,  grief,  or  anguish  of  par- 
ents, or  pain  and  suffering  of  the  child,°^  and  the  jury  are  not  limited  to  the 
consideration  of  the  deceased's  ability  to  earn  wages  during  his  minority  but 
may  take  into  consideration  the  expectation  of  benefits  from  the  continuance  of 
his  life  as  shown  by  the  evidence.®^  It  may  not  be  shown  in  mitigation  of  dam- 
ages that  a  parent  would  receive  a  death  benefit  from  a  relief  department  main- 
tained in  connection  with  the  railroad  by  whom  deceased  was  employed.®*  Under 
the  Texas  statute  the  recovery  by  a  child  for  the  death  of  a  parent  is  not  limited 
to  damages  accruing  during  minority.^® 

The  recovery  is  properly  termed  a  "capital  fund"  which  represents  the  future 
value  of  all  the  pecuniary  loss  to  the  widow  and  next  of  kin.^  In  Delaware  the 
rule  allows  the  recovery  of  such  sum  as  deceased  would  probably  have  earned 
and  left  as  his  estate,  considering  his  age  and  his  ability  and  disposition  to  labor, 
and  his  habits  of  living  and  expenditures.* 

For  death  caused  by  alleged  malpractice,  the  recovery  is  limited  to  the 
damages  sustained  by  the  deceased  in  his  lifetime,^  and  are  limited  to  loss, 
expense,  and  suffering  due  to  the  physician's  negligence  in  excess  of  what  they 
would  have  been  had  the  case  been  properly  treated.* 

§  7.  Excessive  and  inadequate  damages. — The  rule  against  the  allowance  of 
excessive  damages  is  plainly  violated  by  a  verdict  for  double  damages  for  an 
injury  for  which  only  compensatory  damages  are  recoverable,"^  and  by  a  verdict 


80.  Knight  V.  Sadtler  Lead  &  Zinc  Co., 
91  Mo.  App.  574;  Snyder  v.  Lake  Shore  & 
M.   S.   Ry.    Co.    (Mich.)    91    N.    W.    643. 

90.  St.  Louis  S.  "W.  Ry.  Co.  v.  Bowles 
(Tex.  Civ.  App.)   72  S.  W.  451. 

91.  Coffeyville  Min.  &  Gas  Co.  v.  Carter, 
65    Kan.    565,    70    Pac.    635. 

92.  Sternfels  v.  Metropolitan  St.  Ry.  Co. 
(N.  Y.)    66  N.   E.   1117. 

93.  Fajardo  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  84  App.  Div.    (N.  Y.)   354. 

94.  Brown  v.  Southern  Ry.  (S.  C.)  43  S. 
B.  794;  Davidson  Benedict  Co.  v.  Severson 
(Tenn.)  72  S.  W.  967.  A  verdict  is  excessive, 
where  the  jury  makes  the  allowance  for 
the  loss  of  society  and  comfort  of  the  hus- 
band g-reater  than  the  substanial  pecuniary 
value  of  his  life,  the  case  not  being  one 
where  punitive  damages  could  be  recov- 
ered— Florida  Cent.  &  P.  R.  Co.  v.  Fox- 
worth    (Fla.)    34    So.    270. 

95.  Stumbo  v.  Duluth  Zinc  Co.  (Mo.  App.) 
75  S.  "W.  185.  The  mother  in  Indigent  cir- 
cumstances entitled  to  recover  at  all  for 
the  death  of  her  son,  is  entitled  to  more 
than  nominal  damages  under  a  law  giving 
a  right  of  action  to  a  person  dependent  for 
support  on  a  miner  killed  by  reason  of  the 
violation  of  mining  laws  (Rev.  St.  c.  133,  art. 
2,  §  8820) — Bowerman  v.  Lackawanna  Min. 
Co.  (Mo.)  71  S.  W.  1062. 

9a.  Corbett  v.  Oregon  Short  Line  R.  Co.. 
25  Utah,  449.  71  Pac.   1065. 


97.  Chicago  &  E.  I.  R.  Co.  v.  Beaver,  199 

111.    34. 

98.  Boulden  v.  Pennsylvania  R.  Co.   (Pa.) 

.14   Atl.    906. 

99.  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Puente    (Tex.   Civ.   App.)    70  S.  "W.   362. 

1.  Hackney  v.  Delaware  &  A.  Telegraph 
vt  Telephone  Co.  (N.  J.  Law)  55  Atl.  252; 
Cox  v.  T\'ilmington  City  Ry.  Co.  (Del.)  53 
Atl.  569;  Florida  Cent.  &  P.  R.  Co.  v.  Sullivan 
(C.  C.  A.)  120  Fed.  799.  Under  laws  allow- 
ing a  recovery  for  such  sum  as  the  Jury 
deems  just  compensation  for  wrongful  death. 
a  sum  which  at  current  rate  of  interest  for 
trust  Investment  would  bring  an  amount 
equal  to  the  earning  powers  of  decedent, 
does  not  constitute  a  just  measure  of  dam- 
ages— Fajardo  v.  New  York  Cent.  &  H.  R. 
Co.,    84    App.    Div.    (N.    Y.)    354. 

2.  Neal  v.  Wilmington  &  N.  C.  Elec.  Ry. 
Co.,    3    Pen.    (Del.)    4G7. 

3.  4.     Ramsdell  v.  Grady,  97  Me.  319. 

.5.  An  instruction  allowing  recovery  of 
shrinkage  in  weight  of  stock  caused  by  de- 
lay of  carrier  to  promptly  deliver  said 
stock  determined  by  weight  of  stock  at 
destination  before  the  feeding  and  al- 
lowing a  recovery  for  feed  purchased  for 
the  stock  thereafter,  amounts  to  an  author- 
ization of  a  recovery  of  double  damages — 
Melson  V.  Great  Northern  Ry.  Co.  (Mont.) 
72  Pac.  642.  An  instruction  allowing  recov- 
ery of  damages   "for  any  future  impairment 


858 


DAMAGES. 


§7 


ill  excess  of  the  demand  in  the  complaint.'  A  recovery  is  not  to  be  regarded  as 
excessive  merely  because  larger  than  the  court,  sitting  as  a  juror,  would  have 
fouud.^  The  courts  of  New  York  may  reduce  a  verdict  for  excessiveness  though 
punitive  damages  are  recoverable.^  In  Illinois  there  will  be  no  review  of  the 
question  of  excessiveness  by  the  supreme  court  where  that  point  has  been  passed 
upon  by  the  appellate  court.*  An  excessive  verdict  may  be  cured  by  a  remit- 
titur," unless  so  grossly  excessive  as  to  indicate  passion,  partiality,  or  miscon- 
ception of  the  evidence."  The  question  of  the  excessiveness  or  adequacy  of 
recoveries  is  so  peculiarly  one  for  the  jury  under  the  facts  of  each  individual 
x;ase  that  it  is  impracticable  to  attempt  to  deduce  general  rules  governing  the 
matter.     These  holdings,  briefly  stated,  are  collected  and  classified  in  a  footnote.^- 


of  health  and  mind"  and  "for  Impairment 
of  capacity  to  labor  and  earn  a  livelihood 
for  himself  and  family"  is  not  objectionable 
as  authorizing  double  damages  for  the  same 
loss— Central  Tex.  &  N.  W.  Ry.  Co.  v.  Luther 
(Tex.  Civ.  App.)  74  S.  W.  589.  Where  plain- 
tiff was  authorized  to  remove  buildings  and 
equipments  erected  by  him  in  order  to  car- 
ry out  a  contract  for  cutting  and  deliver- 
ing logs  to  defendant,  the  allowance  of 
damages  for  breach  of  the  contract  by  re- 
fusing plaintiff  permission  to  carry  out  the 
contract  and  for  damages  for  conversion  of 
the  building  and  equipments,  does  not 
amount  to  a  double  assessment  of  damages 
— McCorkle  v.  Mallory,  30  Wash.  632.  71 
Pac.  186.  Double  damages  are  not  called 
for  by  an  Instruction  allowing  recovery  for 
loss  of  time,  medical  expenses,  physical  pain 
or  mental  anguish  which  plaintiff  had  en- 
dured and  would  endure  in  the  future  and 
also  for  the  probable  effect  of  injuries  in 
impairing  his  ability  to  earn  a  livelihooc: 
in  the  future — Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Robinson    (Tex.    Civ.    App.)    72    S.    W.    70. 

6.  Branower  v.  Independent  Match  Co.,  8:^ 
App.    Div.    (N.    Y.)    370. 

7.  Dickerson  v.  Payne  (N.  J.  1..)  53  At! 
699 

S.  Rlker  v.  Clopton.  83  App.  Div.  (N.  T.  ^ 
310. 

9.  Lasher  v.   Llttell.   202  111.   551. 

10.  Davis  v.  Bowers  Granite  Co.  (Vt.)  54 
Atl.  1084;  Bull  v.  Bath  Iron  Works,  75 
App.  Div.  (N.  Y.)  380;  Vanderbeck  v.  City 
of  Paterson  (N.  J.  L.)  53  Atl.  216;  Rose 
V.  King,  76  App.  Div.  (N.  Y.)  308;  as  con- 
dition to  refusal  of  new  trial — Creve  Coeur 
Lake  Ice  Co.  v.  Tamm,  90  Mo.  App.  189. 
Where  the  verdict  exceeds  the  damages 
proved  under  either  count  of  a  petition  and 
there  is  a  general  verdict  on  two  counts  and 
no  exceptions  are  taken  the  mistake  is  cured 
by  a  remittitur — Rosenfeld  v.  Siegfried,  91 
Mo.  App.  169.  Affirmance  on  appeal  may 
be  made  to  depend  on  acceptance  of  re- 
mission—Chicago City  Ry.  Co.  v.  Carroll. 
102  111.  App.  202;  Skelton  v.  St.  Paul  City 
Ry.  Co..  88  Minn.  192;  Live  Stock  Remedy 
Co.  v.  White,  90  Mo.  App.  498;  United  Press 
v.  A.  S.  AbeU  Co.,  79  App.  Div.  (N.  Y.)  550: 
First  Nat.  Bank  v.  Calkins  (S.  D.)  93  N. 
W.   646;   Hawes  v.  Warren,   119   Fed.   978. 

11.  Close  v.  Hinsley,  104  111.  App.  65; 
Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  Story, 
Id.  132;  F.  M.  Davis  Ironworks  v.  White 
(Colo.)    71  Pac.   384. 

12.  Largely  question  for  jury — Economy 
Lieht  &  Power  Co.  v.  Sheridan,  103  111. 
App.  145;  True  &  True  Co.  v.  Woda,  104 
111.    App.    16.      . 


Recoveries   held   not   excessive. 

Breach  of  contrnct.  $525.50  (;igainst  un- 
dertaker for  substitution  of  coffin) — J.  B. 
Dunn  &  Co.  v.  Smith  (Tex.  Civ.  App.)  74 
S.  W.  576.  $695  (breach  of  warranty  of 
note) — Stanley  v.  Core  (Iowa)  93  N.  W. 
343. 

Delivery  of  telegrams.  $225  (failure  to 
deliver  a  telegram  announcing  death  of 
child) — Western  Union  Tel.  Co.  v.  Crocker. 
135  Ala,  492.  $1,995.25  (failure  to  deliver 
message  announcing  the  sickness  of  a  son 
until  after  his  death  and  burial) — Western 
Union  Tel.  Co.  v.  James  (Tex.  Civ.  App.)  73 
S.    W.    79. 

Carrying  passenger  past  destination.  $125 
— Rawlings  v.  Wabash  R.  Co.,  97  Mo.  App. 
511.  $1,375 — Guthier  v.  Minneapolis  &  St. 
U  R.  Co..  87  Minn.  355.  $100 — San  Antonio 
Traction  Co.  v.  Crawford  (Tex.  Civ.  App.) 
71    S.    W.    306. 

Torts  in  general.  Injuries  to  crops.  $400 
destruction  of  a  crop) — Corwin  v.  Erie  R. 
2o..   84  App.   Div.    (N.  Y.)    555. 

Wrongful  levy.  $998 — Friedly  v.  Giddings, 
119  Fed.  438.  $500  (breaking  Into  a  house 
o  serve  summons  in  a  civil  action  on  par- 
I lytic) — Foley  v.   Martin    (Cal.)    71    Pac.    165. 

Wrongful  ejection  of  passenger.  $250 — 
Choctaw.  O.  &  G.  K.  Co.  v.  Hill  (Tenn.)  75 
S.  W.  963.  $1,500 — Texas  &  P.  Ry.  Co.  v. 
Lynch  (Tex.  Civ.  App.)  73  S.  W.  65.  $1,500 
— Foley  V.  Metropolitan  St.  Ry.  Co.,  80  App. 
Div.    (N.    Y.)    262. 

Libel  and  slander.  $30,000  (malicious  libel 
affecting  credit  and  mercantile  standing) — 
Minter  v.  Bradstreet  Co.  (Mo.)  73  S.  W.  668. 
$1,500  (libel  reflecting  on  financial  standing 
cai'sing  loss  of  trade) — Brown  v.  Providence 
Telegram  Pub.  Co.  (R.  L)  54  Atl.  1061. 
$2,500  (libel  attacking  a  prosecuting  attor- 
ney)— Bee  Pub.  Co.  v.  Shields  (Neb.)  94  N. 
W.  1029.  $500  (slanderous  charge  of  theft) 
— McMinemee  v.  Smith  (Iowa)  93  N.  W. 
75;   Fat  jo  v.  Seidel,  109  La.   699. 

Seduction.  $5,000  (seduction  of  a  seven- 
teen year  old  girl  by  a  man  worth  $125,000) 
— Willeford  v.    Bailey,    132   N.   C.    402. 

Assaults.  $4,100 — Houston  &  T.  Cent.  R. 
Co.  V.  Bell  (Tex.  Civ.  App.)  73  S.  W.  56. 
$500  (assault  on  woman) — Bruske  v.  Neu- 
gent    (Wis.)    93    N.    W.    454. 

Alienation  of  affections.  $2,250  (aliena- 
tion of  a  husband's  affections) — Love  v. 
Love    (Mo.   App.)    73    S.   W.    255. 

Personal  injuries.  Injuries  to  head.  $200 
(injuries  to  head  and  other  parts  of  body) 
— EzeU  v.  Outland,  24  Ky.  L.  R.  1970,  72 
S.  W.  784.  $3,500  (fracture  of  nasal  bones) 
— Bell     V.     Incorporated     Town     of     Clarion 


8A 


PLEADING. 


859 


g   8.  Pleading,  evidence,  and  procedure.     A.  Pleading. — It  is  not  generally 
necessary  to  allege  the  separate  items  of  damages  resulting  from  a  single  act  of 


(Iowa)  94  N.  W.  907.  $4,100  (fracture  of 
skull.  Injuring  eyes  and  brain) — Revolin- 
sky  V.  Adams  Coal  Co.  (Wis.)  95  N.  W.  122. 
$12,000  (crushed  skull,  causing-  paralysis)  — 
Pouppirt  V.  Elder  Dempster  Shipping,  122 
Fed.   9S3. 

Sight  and  hearing.  $20,000  (loss  of  one 
eye  and  impairment  of  the  other) — Missouri 
K.  &  T.  Ry.  Co.  V.  Flood  (Tex.  Civ.  App.) 
70  S.  W.  331.  $12,500  (loss  of  one  eye  and 
impairment  of  other) — Cummings  v.  National 
&  Providence  "U^orsted  Mills.  24  R.  I.  390. 
$fi.ono  (loss  of  both  eyes) — Bane  v.  Irwin, 
172  Mo.  306.  $6,000  (permanent  injuries  to 
hearing  and  sight) — Hunt  v.  St.  Paul  City 
Ry.  Co.   (Minn.)   95  N.  W.  312. 

Spinal  and  nervous  injuries.  $15,000 
(spine) — Copeland  v.  Wabash  R.  Co.  (Mo.) 
75  S.  W.  106.  $5,000  (spine) — Sweeney  v. 
New  York  Cent.  &  H.  R.  R.  Co.,  83  App. 
Div.  (N.  Y.)  565.  $2,000  (spine) — Houston 
&  T.  C.  R.  Co.  V.  Harris  (Tex.  Civ.  App.) 
70  S.  W.  335.  $3,800  (spine  and  head)  — 
Central  Tex.  &  N.  W.  Ry.  Co.  v.  Luther 
(Tex.  Civ.  App.)  74  S.  W.  589.  $4,208.33 
(neck,  back  and  head  producing  mental  im- 
pairment)— Baumann  v.  C.  Reiss  Coal  Co. 
(Wis.)  95  N.  W.  139.  $10,000  (injuries  in- 
dicating chronic  sclerosis  of  the  spinal  cord 
and  brain) — Clark  v.  Brooklyn  Heights  R. 
Co.,  78  App.  Div.  (N.  Y.)  478,  12  N.  Y.  Ann. 
Cas.    333. 

Internal  Injuries.  $6,000  (internal  Injuries 
to  a  married  woman) — Chicago,  R.  I.  &  T. 
Ry.  Co.  v.  Armes  (Tex.  Civ.  App.)  74  S. 
W.  77.  $6,166.79  (diabetes) — Eichholz  v. 
Niagara  Falls  Hydraulic  Power  &  Mfg.  Co., 
68  App.  Div.  (N.  Y.)  441.  $4,000  (rupture) 
— Texas  &  N.  O.  R.  Co.  v.  Lee  (Tex.  Civ. 
App.)  74  S.  W.  345.  $800  (rupture) — Chesa- 
peake &  O.  Ry.  Co.  V.  Jordan  (Ky.)  76  S. 
W.  145.  $7,000  (rupture) — Malloy  v.  St. 
Louis  &  S.  Ry.  Co.  (Mo.)  73  S.  W.  159. 
$3,900  (hernia) — Hennessy  v.  St.  Louis  &  S. 
Ry.  Co.   (Mo.)   73  S.  W.   162. 

Paralvsis:  $5,000  (total  paralysis  of  one 
arm)— Stauning  v.  Great  Northern  Ry.  Co. 
(Minn.)  S3  N.  W.  518.  $15,000  (paralysis 
below  the  waist) — City  of  Elgin  v.  Nofs. 
103    111.    App.    11. 

Injuries  peculiar  to  women:  $1,500  (per- 
manent organic  injury) — Brake  v.  Kansas 
City  (Mo.  App.)  75  S.  W.  191.  $7,000  (dis- 
placement)— I>ouisville  v.  Bailey,  25  Ky.  L. 
R.    6,    74    S.    W.    688. 

Burns  and  scalds:  $4,650  (burns,  destroy- 
ing arteries) — Curtis  v.  McNair  (Mo.)  73 
S.  W.  167.  $10,000  (burns  destroyings  a 
large  area  of  skin  causing  loss  of  fingers. 
and  Injury  to  sexual  organs) — Quincy  Gas 
&  Elec.  Co.  V.  Bauman,  104  111.  App.  600. 
$4,000  (scalding) — Zellars  v.  Missouri  Water 
&  Light  Co.,   92  Mo.  App.   107. 

Fractures,  dislocations  and  Injuries  to  and 
loss  of  limbs:  $3,000  (one  hand) — Baltimore 
&  O.  S.  W.  R.  Co.  v.  Roberts  (Ind.)  67  N. 
B.  530.  $3,000  (dislocation  of  fibula  of  the 
left  limb) — Milledge  v.  Kansas  City  (Mo. 
App.)  74  S.  W.  892.  $6,000  (fracture  of 
limbs  and  other  injuries) — Missouri.  K.  & 
T.  Ry.  Co.  V.  TafE  (Tex.  Civ.  App.)  74  S. 
W.  89.  $8,000  (injuries  making  party  a 
helpless  cripple) — Heer  v.  Warren-Scharf 
Asphalt  Co.  (Wis.)  94  N.  W.  789.  $4,000 
(joint    of    knee,    crushing    chest    and    break- 


ing ribs) — Hanlon  v.  Milwaukee  Elec.  Ry. 
&  Light  Co.  (Wis.)  95  N.  W.  100.  $1,000 
(fracture  of  both  bones  of  leg  above  ankle) 
— Isham  V.  Broderick  (Minn.)  95  N.  W.  224. 
$1,000  (partial  dislocation  of  ankle) — Hoff- 
man V.  Village  of  North  Milwaukee  (Wis.) 
95  N.  W.  274.  $6,090  (injury  resulting  In 
ulceration  and  partial  disablement^) — Jor- 
dan V.  City  of  Seattle,  30  Wash.  298,  70  Pac. 
743.  $11,000  (arm  and  hand) — Galveston,  H. 
&  S.  A.  Ry.  Co.  v.  Courtney  (Tex.  Civ.  App.) 
71  S.  W.  307.  $11,500  (loss  of  leg  above 
knee),  compound  fracture  of  arm  and  bruises 
.md  cuts  about  head  and  body) — Hill  v. 
Starin,  173  N.  Y.  6.'52.  $1,000  (loss  of  leg) 
— Eberhardt  v.  Metropolitan  St.  Ry.  Co.  (N. 
Y.)  66  N.  E.  1107.  $4. 346. 93  (permanent  crip- 
pling of  limb) — Bertsch  v.  Metropolitan  St. 
Ry.  Co..  173  N.  Y.  634.  $1,000  (fracture  of 
bones  in  leg  requiring  use  of  crutches)  — 
Adams  Exp.  Co.  v.  Smith,  24  Ky.  L.  R. 
1915,  72  S.  W.  752.  $6,000  (compound  frac- 
ture of  right  leg  necessitating  numerous 
operations) — The  Anchoria  (C.  C.  A.)  120 
Fed.  1017.  $10,000  (one  hand) — Sesselmann 
V.  Metropolitan  St.  Ry.  Co.,  76  App.  Div. 
(N.  Y.)  336.  $11,000  (one  arm) — Baird  v. 
New  York  Cent.  &.  H.  R.  R.  Co..  172  N.  Y. 
637.  $15,000  (loss  of  foot) — New  Omaha 
Thomson-Houston  Elec.  Light  Co.  v.  Rom- 
bold  (Neb.)  93  N.  W.  966.  $1,933  (injuries 
to  hand  and  arm) — Baker  v.  City  of  Inde- 
pendence, 93  IMo.  App.  165.  $4,000  (limb 
broken  in  tv,-n  places  and  serious  injuries  to 
back  with  shock) — Continental  Tobacco  Co. 
V.  Knoop,  24  Ky.  L.  R.  12G8.  71  S.  W.  3. 
.?847  (loss  of  arm) — Illinois  Cent.  R.  Co.  v. 
Taylor,  24  Ky.  L.  R.  1169,  70  S.  W.  825. 
.?7,750  (loss  of  hand) — South  Chicago  St.  Ry. 
Co.  V.  Dufresne,  102  Til.  App.  493.  $7,000 
(loss  of  limb  below  knee) — Seaboard  Air 
Line  Ry.  Co.  v.  Phillips,  117  Ga.  98.  $1,000 
(wrenching  and  spraining  ankle) — Louis- 
ville R.  Co.  v.  Casey,  24  Ky.  L.  R.  1527. 
71  S.  W.  876.  $1,500  (impairment  of  use  of 
■irm) — Wagner  v.  Metropolitan  St.  Ry.  Co., 
79  App.  Div.  (N.  Y.)  591.  $2,000  (loss  of 
fingers,  cuts  and  bruises) — Dover  v.  Missis- 
sippi River  &  B.  T.  Ry.  (Mo.  App.)  73  S. 
W.  298.  $2,000  (bruises,  dislocation  of  shoul- 
der, and  fracture  of  shoulder  joint) — Meyer 
V.  Milwaukee  Elec.  Ry.  &  Light  Co.  ("U''is.) 
93  N.  W.  6.  $10,000  (fracture  of  thigh)  — 
Waldie  v.  Brooklyn  Heights  R.  Co.,  78  App. 
Div.  (N.  Y.)  557.  $400  (injuries  to  the  hip 
nf  a  female) — Louisville  &  N.  R.  Co.  v. 
Shepherd.  24  Ky.  L.  R.  839,  69  S.  W.  1070. 
$9,000  (broken  bones  and  laceration  of  flesh, 
doubtful  union  of  bones) — Bolton  v.  Mis- 
souri Pac.  Ry.  Co..  172  Mo.  92.  $5,000 
(broken  ribs  and  collar  bone) — Black  v, 
Missouri  Pac.  Ry,  Co.,  172  Mo.  177.  $500 
(injuries  necessitating  the  removal  of  a 
part  of  a  bone) — Monticello  &  B.  Turnpike 
R.  Co.  V.  Jones  (Ky.)  24  Ky.  L.  R.  821,  69 
S,  W.  1073.  $3,000  (fracture) — Beringer  v. 
Dubuque  St.  Ry.  Co.  (Iowa)  91  N.  W.  931. 
$3,000  (side,  leg  and  back) — Louisville  & 
N.  R.  Co.  V.  Davis,  24  Ky.  L.  R.  1415,  71 
S.    W.    658. 

Bruises  and  shock:  $1,000  (severe  shock 
and  pain) — Chicago  City  Ry.  Co.  v.  Bieder- 
man,  102  111.  App.  617.  $1,250  (bruises) — 
Ljungberg  v.  Village  of  North  Mankato,  87 
Minn.    484. 


860 


DAMAGES. 


8  8A 


ne<yli?ence,"  nor  is  it  a  requisite  to  a  recovery  that  all  the  damages  averred  should 
be  proved."     Where  interest  is  allowed  as  an  incident  of  recovery,  it  is  not  nee- 


Wronsftil  dentbi  J1.500  (youth  eighteen 
and  a  liilf  years  of  age  earning  $2.00  a  day) 
— Stumbo  V.  Duluth  Zi-nc  Co.  (Mo.  App.) 
76  S.  W.  185.  $5,000  (the  extreme  statu- 
tory amount  not  excessive  for  death  of  a 
bright,  active  boy  16  years  of  age,  who  for 
nearly  three  years  had  been  a  general  clerk 
In  a  store) — Nelson  v.  Branford  Lighting  & 
Water  Co.,  75  Conn.  548.  $5,000  (married 
man  of  37  earning  $9.00  a  week) — Geismann 
V.  Missouri  Edison  Elec.  Co.  (Mo.)  73  S.  W. 
654.  $25,000  (battalion  fire  chief,  38  years 
of  age,  salary  of  $3,300) — Lane  v.  Brook- 
lyn Heights  R.  Co.,  82  N.  Y.  S.  1057.  $1.51.S 
(boy  of  six  years) — Hoon  v.  Beaver  Valley 
Traction  Co.,  204  Pa.  369.  $25,000  (man  62 
years  of  age  expending  $5,000  a  year  on 
his  familv) — Sternfels  v.  Metropolitan  St. 
Ry.  Co.  (N.  Y.)  66  N.  E.  1117.  $3,600  (man 
earning  $10  a  week) — Garbaccio  v.  Jersey 
City,  H.  &  P.  St.  Ry.  Co.  (N.  J.  Law)  53 
Atl.  707.  $1,100  (man  of  35,  earning  $1,800) 
—Chicago,  R.  I.  &  P.  R.  Co.  v.  Young  (Neb.) 
93  N.  W.  922.  $2,750  (boy  of  6,  where  two 
juries  have  returned  the  same  verdict)  — 
Gray  v.  St.  Paul  City  Ry.  Co.,  87  Minn.  280. 
$500  (scowman  having  no  one  dependent 
on  him  for  support) — The  O.  L.  Hallenbeck. 
119  Fed.  468.  $10,000  (man  of  35  earning- 
$12  a  week) — Stevens  v.  Union  Ry.  Co.  (N. 
Y.)    75    App.    Div.    602. 

Recoveries   Held    E^ccesslve. 


Breach  of  contract:  $2o0  (carrying  a 
passenger  bevond  his  station) — Central  of 
Ga.  Ry.  Co.  v.  Wood  (Ga.)  44  S.  E.  1001. 
$25,000  (breach  of  promise  by  mail  clerk 
owning  house  not  fully  paid  for) — Broyhill 
V.  Norton  (Mo.)  74  S.  W.  1024.  $100  (in- 
juries to  shipment  of  stock) — Helm  v.  Mis- 
souri   Pac.    R.    Co.    (Mo.    App.)    72    S.    W.    148. 

Torts  In  general:  $1,250  (ejection  of  a 
passenger) — Georgia  R.  Co.  v.  Baldoni,  115 
Ga.  1013.  $1,000  actual  and  $1,000  punitive 
damages  (arrest  of  a  passenger  tendering 
worn  coin) — Ruth  v.  St.  Louis  Transit  Co. 
(Mo.  App.)  71  S.  W.  1055.  $1,450  (arrest  by 
order  of  conductor  of  street  car)  $500  be- 
ing ample — Grayson  v.  St.  Transit  Co.  (Mo. 
App.)  71  S.  W.  730.  $3,333  (failure  to  stop 
a  train  at  a  flag  station)  $2,000  being  ample 
— Yazoo  &  M.  V.  R.  Co.  v.  Faust  (Miss.) 
34  So.  356.  $400  (wrongful  discharge  of  sur- 
face water) — Ready  v.  Missouri  Pac.  R.  Co. 
(Mo.    App.)    72   S.   W.    142. 

Libel  and  slander:  $36,000  (libel  charging 
conspiracy  to  defraud  the  Insurance  com- 
panies) $20,000  being  ample — Duke  v.  Morn- 
ing Journal  Ass'n,  120  Fed.  860.  $40,000 
(libel  holding  a  magistrate  up  to  scorn  as 
a  bullying  magistrate  unfit  for  his  posi- 
tion) $25,000  being  ample — Crane  v.  Bennett. 
77  App.  Div.  (N.  Y.)  102.  $5,000  (libel  con- 
cerning business  standing)  $3,000  being 
ample — Daisley  v.  Douglass.  119  Fed.  485. 
J7.000  (slouder  with  Immediate  recantation) 
$1,738.20  being  ample — Riker  v.  Clopton,  83 
App.    Div.    (N.   Y.)    310. 

Personal  injuries;  $10,000  (loss  of  hand 
and  m.ental  and  physical  suffering  Incident 
thereto)  $5,000  being  ample — Texas  &  Ft. 
S.  Ry.  Co.  V.  Hartnett  (Tex.  Civ.  App.)  75 
S.  W.  809.  $16,000  (injuries  to  wrist,  back 
and  partial  paralysis  of  the  leg)  $S,000  be- 
ing   ample — Missouri,    K.    &    T.    Ry.    Co.    v. 


Bodie  (Tex.  Civ.  App.)  74  S.  W.  100.  $3,100 
(temporary  injuries,  party  having  sustained 
no  fracture  of  bones  and  only  slight  de- 
tention from  business) — Stoetzele  v.  Swear- 
ingen,  90  Mo.  App.  588.  $12,000  (compound 
fracture  of  the  leg  below  the  knee,  causing 
looseness  in  knee  joint) — Rueping  v.  Chi- 
cago &  N.  W.  Ry.  Co.  (Wis.)  93  N.  W.  843. 
$3,000  (broken  leg  not  resulting  in  perma- 
nent injury) — South  Omaha  v.  Fennel! 
(Neb.)  94  N.  W.  632.  $7,500  (partial  dis- 
ablement of  knee  cap) — Langbein  v.  Swift, 
121  Fed.  416.  $10,000  (evidence  of  perma- 
nent impairment  slight  and  no  visible  marks) 
$6,000  being  ample — McDannald  v.  Washing- 
ton &  C.  R.  Ry.  Co.,  31  Wash.  585,  72  Pac. 
481.  $2,500  (injuries  imperceptible  to  the 
eye) — Swafford  v.  Rosenbloom,  102  111.  App 
578. 

\Vrongful  death:  $3,000  (alleged  malprac- 
tice)— Ramsdell  v.  Grady,  97  Me.  319.  $3,500 
(girl  SVn  years  of  age)  $2,500  being  ample 
— Wells  V.  New  York  Cent.  &  H.  R.  R.  Co.. 
78  App.  Div.  (N.  Y.)  1.  $5,000  (domestic 
servant,  turning  over  to  parent  $3  a  month) 
$1,500  being  ample — Lindstrom  v.  Interna- 
tional Nav.  Co.,  117  Fed.  170.  $5,200  (track 
walker  earning  $1.25  a  day)  $4,000  being 
ample — Erie  R.  Co.  v.  McCormick,  24  Ohi" 
Circ.  R.  86.  $6,000  (ordinarily  bright  boy 
a  little  over  4  years  of  age)  $3,000  being 
ample — Hively  v.  Webster  County,  117  Iowa. 
672.  $10,000  (man  seventy-three  years  of 
age)  $5,000  being  ample — Stillings  v.  Met- 
ropolitan St.  Ry.  Co.,  84  App.  Div.  (N.  Y.) 
201.  $10,000  (miner  55  years  of  age  re- 
ceiving $50  a  month)  $6,000  being  ample — 
Vowell  V.  Issaquah  Coal  Co.,  31  Wash.  IDS. 
71    Pac.    725. 

Adequacy    of    Recovery. 

Torts:  6c.  inadequate  for  injuries  where 
$150  w^as  expended  for  medical  services 
alone — Tooker  v.  Brooklyn  Heights  R.  Co.. 
SO  App.  Div.  (N.  Y.)  371.  $100  inadequate 
for  deprivation  of  wife's  society  caused  by 
injuries,  a  considerably  larger  sum  having 
been  expended  by  husband  for  expenses — 
Caswell  v.  North  Jersey  St.  Ry.  Co.  (N.  J. 
Law)  54  Atl.  565.  $250  not  inadequate  for 
levy  of  a  wrongful  execution — Avindino's 
Heirs  v.  Beck  (Tex.  Civ.  App.)  73  S.  W. 
539. 

Wrongful  death:  $10.00  for  death  of  child 
three  year  four  months  old  is  grossly  inade- 
ciuate — Draper  v.  Tucker  (Neb.)  95  N.  W. 
1026.  $750  not  inadequate  for  death  of  boy 
cif  5  years — Schnable  v.  Providence  Public 
Market.  24  R.  I.  477.  $200  is  not  so  gross- 
ly inadequ.Tte  for  killing  child  of  6  as  to 
justify  setting  aside  award — Gubbitosi  v. 
Rothschild,  75  App.  Div.  477.  12  N.  Y.  Ann. 
Gas.  16.  $250  for  the  death  of  a  boy  of  11 
not  so  grossly  inadequate  as  to  justify  the 
granting  of  a  new  trial — Snyder  v.  Lake 
.Shore  &  M.  S.  Ry.  Co.  (Mich.)  91  N.  W. 
643. 

13.  Nokken  v.  Avery  Mfg.  Co.,  11  N.  D. 
399.  Action  for  wrongful  death  (Cutting's 
Ann.  Comp.  Laws,  §S  39S3.  3984) — Peers  v. 
Nevada  Power.  L.   &  W.  Co.,  119   Fed.   400. 

14.  Under  an  allegation  that  plaintiff's 
hip  was  dislocated,  the  dislocation  includ- 
ing a  bruise,  strain  or  contusion,  a  recov- 
ery  is   not   prevented   by    the   fact   that   the 


^  8A 


PLEADING. 


8bl 


essary  that  it  should  be  demanded  in  the  declaration,  otherwise  where  interest 
beyond  the  legal  rate  is  sought  to  be  included  in  the  recovery  by  reason  of  a 
special  contract.^' 

Special  damages  are  those  arising  directly,  but  not  necessarily  or  by  impli- 
cation of  law,*®  and  cannot  be  recovered  unless  specially  alleged.^^  The  expense 
of  recovering  property  wrongfully  taken  and  injured,*^  loss  of  earnings  or  of 
business,*®  loss  of  time  or  wages,-"  loss  of  profits  for  breach  of  an  agreement  to 
lease,^^  amount  paid  to  others  to  perform  the  same  services  in  carrying  on  plain- 
tiff's business  that  he  would  have  performed  but  for  the  injur}^--  are  within  the 
rule  and  must  be  pleaded.  Increased  injury  by  reason  of  the  diseased  condition  of 
plaintiff  at  the  time  of  the  accident  is  not  considered  a  special  damage.-^  In  Illinois 
evidence  of  the  wages  earned  by  the  injured  party  at  the  time  of  the  accident  is 
admissible,  though  special  damages  are  not  averred.^*  An  allegation  that  on 
account  of  the  injuries  plaintiff'  was  compelled  to  hire  a  nurse  to  wait  upon  him 
and  asking  judgment  for  a  stated  sum  allows  evidence  of  the  amount  paid  for 
nurse  hire  though  there  was  no  specific  sum  claimed  therefor.^"*  Where  the  dam- 
ages are  such  as  would  necessarily  follow  a  breach  of  the  contract,  allegations  as 
to  special  damages  are  unnecessary.^**  The  rule  as  to  pleading  special  damages  is 
relaxed  where  willful  negligence  is  charged.^^ 

There  is  a  physical  injury  stated  Adhere  the  complaint  alleges  disturbance 
in  body  to  the  great  damage  of  plaintiff.-* 

On  an  application  for  the  appointment  of  commissioners  to  assess  damages 
for  change  in  a  street  grade,  a  railroad  company  liable  for  a  portion  of  the 
damages  may  interpose  an  answer  setting  up  any  defense  it  may  have.^" 

Whether  evidence  of  particular  damages  is  admissible  under  the  issues  is 


evidence  does  not  show  a  dislocation — St. 
Louis  S.  W.  Ry.  Co.  v.  Brown  (Tex.  Civ. 
App.)    69    S.    W.    1010. 

1.1.  Camp  V.  First  Nat.  Bank  (Fla.)  33 
So.    241. 

16.  Cyc.    Law    Diet. 

17.  Kircher  v.  Incorporated  Town  of 
Larchwood  (Iowa)  95  N.  W.  184;  Cronin  v. 
Metropolitan  St.  Ry.  Co..  81  N.  Y.  Supp. 
752. 

Sufficiency  of  allegations  of  special  dam- 
ages: Special  damages  are  averred  in  a 
petition  for  slander  stating  that  plain- 
tiff became  sick  and  suffered  great  bodily 
pain — Hitzfelder  v.  Koppelmann  (Tex.  Civ. 
App.)  70  S.  W.  353.  Special  damages  In  a 
suit  for  slander  are  insufficiently  averred 
by  an  allegation  that  defendant  falsely  and 
maliciously  said  to  a  person  with  whom 
plaintiff  was  negotiating  a  trade  that  plain- 
tiff "is  no  good,  he  will  not  pay  for  any- 
thing he  gets"  and  therefore  the  trade  w^as 
broken  off — Ford  v.  Lamb,  116  Ga.  655. 
In  an  action  for  damages  to  one  article  of 
clothing,  it  Is  not  necessary  to  allege  spe- 
cial damages  to  the  entire  suit — J.  Harz- 
burg  &  Co.  v.  Southern  Ry.  Co.,  65  S.  C. 
539.  Loss  of  time  of  a  peculiar  and  spe- 
cial value  is  insufficiently  averred  In  a  pe- 
tition alleging  in  addition  to  suffering,  the 
Inability  of  plaintiff  to  do  ordinary  farm 
work,  permanent  injuries  and  damages  in 
a  certain  sum — Louisville  &  N.  R.  Co.  v. 
Mason,    24    Ky.    L.    R.    1623.    72    S.    W.    27. 

IS.  Patee  v.  McCabe-Bierman  Wagon 
Co.,    97   Mo.   App.   356. 

19.     Louisville    &    N.    R.    Co.    v.    Reynolds, 
24    Ky.    L.    R-    1402.    71    S.    W.    516;    Pei  uin    ^ 
St.    Louis    &    S.    Ry.    Co..    90    Mo.    App.    118; 
Stoetzle   V.    Swearingen.    90   Mo.   App.    592. 


20.  Brake  v.  Kansas  City  (Mo.  App.)  75 
S.  W.  191.  Sufficiency  of  allegation  to  ad- 
mit evidence  of  the  value  of  time  lost  while 
disabled  from  injuries — General  Elec.  Co.  v. 
Murray  (Tex.  Civ.  App.)  74  S.  W.  50.  There 
is  a  sufficient  allegation  of  damages  for 
loss  of  time  where  it  is  alleged  that  plain- 
tiff has  been  ill  and  still  is  partially  dis- 
abled from  attending  to  her  work  and  house- 
hold affairs — Brake  v.  Kansas  City  (Mo. 
App.)    75   S.   "W.    191. 

21.  Drischman  v.  McManemin,  68  N.  J. 
Law,    337. 

22.  Paquin  v.  St.  Louis  &  S.  Ry.  Co..  90 
Mo.   App.   118. 

23.  Campbell  v.  Los  Angeles  Traction  Co.. 
137  Cal.  565,  70  Pac.  624.  Where  the  dam- 
ages are  for  an  assault,  evidence  that  plain- 
tiff was  an  epileptic  at  the  time  of  the  as- 
■sault  with  evidence  showing  the  assault 
might  aggravate  the  disease,  is  admissible, 
though  the  fact  that  plaintiff  was  in  an 
epileptic  condition  was  not  pleaded — St. 
Louis  Trust  Co.  v.  Murmann,  90  Mo.  App. 
555. 

24.  Illinois  Steel  Co.  v.  Ryska.  200  111. 
280. 

25.  Moore  v.  Southwest  Missouri  Elec.  Ry. 
Co.    (Mo.    App.)    75    S.    W.    176. 

26.  Bussard  v.  Hibler,  42  Or.  500,  71  Pac. 
642. 

27.  Henry  Sonneborn  &  Co.  v.  Southern 
Ry.,  65  S.  C.  502.  22  St.  at  Large,  p.  693— 
Stembridge  v.  Southern  Ry..  65  S.  C.  440. 

28.  Watkins  v.  Kaolin  Mfg.  Co.,  131  N. 
C.    536,    60   L.   R.   A.    617. 

29.  In  re  Grade  Crossing  Com'rs,  171  N 
Y.    685. 


802 


DAMAGES. 


§  8B 


larf^clv  a  matter  of  construction  of  averments  in  the  pleadings  describing  the 
particuhir  injuries  and  their  effects.^"  Evidence  inadmissible  for  want  of  proper 
pleading  should   be   stricken.^^ 

(§8)  B.  Evidence  as  to  damages.  In  general. — There  may  be  no  recovery  of 
damages  in  the  absence  of  proof  of  their  amount.'-  The  Northampton  tables  though 
not  conclusive  are  competent  evidence  on  question  of  probable  duration  of  a  life 
in  an  action  for  breach  of  a  contract  for  support. '^  The  value  of  realty  cannot  be 
established  by  the  testimony  of  witnesses  as  to  the  amount  they  would  be  willing 
to  take  for  their  property.'*  Where  it  becomes  necessary  to  establish  the  value 
of  land  in  an  action  for  failure  to  convey  and  the  value  has  been  estimated  by 
parcels  in  the  terms  of  the  contract,  such  estimate  is  prima  facie  evidence  there- 
of.'^ A  witness  cannot  testify  that  in  his  opinion  the  breach  of  a  contract  by  one 
of  the  parties  thereto  caused  damages  to  the  other  in  a  lump  sum  stated. ^° 

The  fact  that  property  is  insured  for  a  certain  amount  is  not  conclusive  evi- 
dence as  to  its  value  in  an  action  for  its  destruction  by  fire.'^  Direct  proof  of 
injuries  to  the  feelings  alleged  as  an  element  of  damages  is  not  indispensable  to 
their  recovery,  as  the  existence  of  this  element  may  be  determined  from  circum- 


.10.  Evidence  of  hernia  is  admissible  un- 
der an  averment  of  injury  to  muscles  of 
legs.  arms,  side,  back,  abdomen  and  that 
bowels  were  strained  and  bruised — City  of 
Connersville  v.  Snider  (Ind.  App.)  67  N.  E. 
555.  Impairment  of  hearing  may  not  be 
shown  under  averment  of  serious  and  per- 
manent injuries  to  head  and  body  and 
nerves  and  physical  shock,  great  pain  in 
head  and  body  and  loss  of  sleep  and  loss 
of  memory — Piltz  v.  Tonkers  R.  Co.,  83  App. 
Dlv.  (N.  Y.)  29.  Evidence  of  injuries  to 
nerves  is  admissible  under  an  allegation  that 
plaintiff's  arm  was  cut  off.  his  foot  mutilated,. 
and  he  was  otherwise  permanently  injured — 
Kappus  v.  Metropolitan  St.  Ry.  Co.,  82  App. 
Div.  (N.  T.)  13.  Under  allegation  of  in- 
ternal injuries  about  the  head,  and  other 
pains,  injuries  to  the  eye  may  be  shown — 
Stembridge  v.  Southern  Ry.,  65  S.  C.  440. 
Diabetes  may  be  shown  under  allegation  of 
bruises,  strain  of  spinal  column  and  lacera- 
tion of  muscles  causing  great  pain  and  pre- 
venting labor — Eichholz  v.  Niagara  Falls 
Hydraulic  Power  &  Mfg.  Co.,  174  N.  Y.  519. 
Averment  of  injuries  to  the  nervous  system 
allows  testimony  of  physician  that  such  in- 
juries produce  a  lower  state  of  vitality, 
causing  defects  of  hearing,  speech  and  sight 
—Missouri,  K.  &  T.  Ry.  Co.  v.  Hawk  (Tex. 
Civ.  App.)  69  S.  W.  1037.  Averment  of  in- 
juries to  the  spine  allows  evidence  of  the 
effect  of  an  injury  to  the  spine  on  the  sense 
of  hearing — Id.  Averment  of  fracture  of 
skull  and  contusion  of  person  with  internal 
injuries  does  not  authorize  evidence  of  de- 
mentia— Sealey  v.  Metropolitan  St.  Ry.  Co., 
78  App.  Div.  (N.  Y.)  530.  Retroversion  of 
womb  may  not  be  shown  under  averment  of 
injuries  in  and  around  head  and  body  making 
plaintiff  sick  and  sore  and  causing  great 
bodily  pain  and  Injuries  of  a  permanent 
character — Ramson  v.  Metropolitan  St.  Ry. 
Co.,  78  App.  Div.  (N.  Y.)  101.  Averment  of 
concussion  of  the  spine  does  not  allow  evi- 
dence of  injury  to  sexual  organs,  that  not 
being  a  necessary  result  from  the  injury 
pleaded — Page  v.  Delaware  &  H.  Canal  Co., 
76  App.  Div.  160,  12  N  Y.  Ann.  Cas.  IS. 
Averment  of  Injuries  as  affecting  the  back. 
leg  and  hip  causing  concussion  of  the  spine 
and    other    bruises    or    injuries,    allows    evi- 


dence as  to  the  injury  of  sexual  organs — 
Atlanta  Ry.  &  Power  Co.  v.  Maddox,  117  Ga. 
ISl.  Averment  of  great  injury,  bruises  on 
leg,  back  wrenched  and  sprained,  severe 
contusion  of  muscles  and  nerves,  and  that 
plaintiff  became  sick  and  unable  to  labor, 
and  his  health  greatly  impaired,  does  not 
authorize  proof  of  traumatic  neurosis  re- 
sulting from  concussion  or  shock — Maynard 
V.  Oregon  R.  Co.  (Or.)  72  Pac.  590.  Aver- 
ment of  great  injury,  bruises  on  limbs  and 
wrenching  of  back,  sprains  and  contusion 
of  muscles  and  nerves  allows  evidence  that 
plaintiff  was  skinned  on  the  knee  and 
bruised  on  the  right  hip,  and  that  sharp 
pains  extended  into  his  neck  and  that  his 
legs  would  draw  and  cramp — Id.  Under  an 
averment  that  by  reason  of  injury  to  his 
leg  plaintiff  endured  great  pain  and  bodily 
suffering,  and  evidence  of  a  physician  with- 
out objection,  that  the  temporary  derange- 
ment of  the  kidneys  frequently  resulted 
from  confinement  due  to  broken  leg,  plain- 
tiff may  testify  that  kidneys  were  affected 
by  his  inactivity — Kircher  v.  Incorporated 
Town  of  Larchwood  (Iowa)  95  N.  W.  184. 
The  amount  actually  paid  for  medical  at- 
tendance and  its  reasonableness  may  be 
shown  under  a  petition  alleging  the  amount 
paid,  and  that  the  treatment  was  necessary 
and  plaintiff  was  compelled  to  pay  the 
same — St.  Louis  S.  W.  Ry.  Co.  v.  Duck  (Tex. 
Civ.  App.)  69  S.  "W.  1027.  Evidence  of  plain- 
tiff's condition  a  year  and  a  half  after  an 
accident  is  admissible  under  a  complaint 
alleging  serious  resulting  injury — Mogk  v. 
Xew  York  &  N.  J.  Tel.  Co..  78  App.  Div.  (N. 
Y.)    560. 

31.  Brown  v.  Manhattan  Ry.  Co.,  82  App. 
Div.    (N.    Y.)    222. 

32.  Riggs  V.  Gray  (Tex.  Civ.  App.)  72 
S.   W.   101. 

33.  Banta  v.  Banta,  84  App.  Div.  (N.  Y.) 
138. 

34.  Eastern  Tex.  R.  Co.  v.  Scurlock  (Tex. 
Civ,   App.)    75    S.   W.    366. 

35.  Humphreys  v,  Shellenberger  (Minn.) 
94   N.   W.   1083. 

3G.  Foote  &  Davies  Co.  v.  Malony,  115 
Ga.  985. 

37.  Verdon  v.  United  Elec.  Co.  (N.  J. 
Law)    55    Atl.    99. 


8B 


EVIDENCE. 


863 


stances  disclosed  by  the  evidence.^''  The  credibility  of  witnesses  testifying  as  to 
"damages  may  be  tested.^^  In  an  action  against  officers  for  an  alleged  unlawful 
search  of  premises  where  special  damages  are  asked  for  humiliation  and  disgrace, 
it  may  be  shown  that  a  part  of  the  house  was  occupied  by  persons  of  low  char- 
acter/" 

Cases  passing  on  the  sufficiency  of  evidence  are  collected  in  the  footnote.** 

Evidence  in  action  for  personal  injuries. — The  condition  of  the  injured 
person  before  and  since  the  injury  may  be  shown,*^  but  this  does  not  authorize 
the  admission  of  hearsay  evidence."^  The  injured  person  may  testify  as  to  the 
condition  of  his  health  previous  to  the  injury.**  The  evidence  must  have  refer- 
ence ^to  the  effect  of  the  injury.*^  The  size  and  dependent  condition  of  plaintiff's 
family  may  not  be  shown.*®  The  fact  that  testimony  as  to  an  injury  was  not 
admissible  to  show  the  injury  as  an  element  of  damages  because  riot  pleaded  will 
not  prevent  its  admission  when  offered  solely  as  a  manifestation  of  injuries 
received  which  were  properly  pl^aded.*^  The  opinion  of  a  husband  as  to  the  value 
of  his  wife's  services  is  admissible  together  with  facts  to  the  effect  that  she  had 
been  able  to  perform  all  of  the  ordinary  duties  of  the  household  and  family  prior 
to  the  injury  but  not  thereafter,*®  and  he  may  testify  as  to  the  value  of  his  time 
and  services  devoted  to  her  care  and  the  reasonable  amount  of  drug  bills,  nurse 
hire,  and  hospital  bills  that  were  expended.**  There  can  be  no  recovery  where 
there  is  no  data  from  which  tlie  jury  may  determine  the  amount  of  the  damages 
suffered,  though  it  is  clear  that  the  party  is  entitled  to  recover  something.^" 

Expectancy  life  tables  are  admissible  where  the  injuries  are  permanent/*  and 
in  actions  for  WTongful  death."^* 

Physical  examination  is  usually  allowable.''^       * 


S8.     Hoover    v.    Haynes    (Neb.)     93    N.    W. 
732. 

39.  Houston    Cotton    Oil    Co.    v.    TrammeU 
(Tex.)   74  S.  W.  899. 

40.  Collins    V.    Clark    (Tex.    Civ.    App.)    72 
S.    W.    97. 

41.  Breach  of  contract — Slater  v.  La 
Grande  Lig-ht  &  Power  Co.  (Ore.)  72  Pac. 
738.  Illegal  levy  by  sheriff — Whitworth  v. 
McKee  (W^ash.)  72  Pac.  1046.  Value  of 
bonds  at  a  certain  date — -Scrivner  v.  "Wood- 
ward (Cal.)  73  Pac.  863.  Breach  of  con- 
tract involving  sale  of  inventions — South 
African  Reduction  Co.  v.  Peck  (C.  C.  A.) 
120  Fed.  87.  Loss  of  or  damage  to  prop- 
erty— Golden  v.  Heman  Const.  Co.  (Mo. 
App.)  71  S.  "W.  1093;  "Wagner  v.  Conway, 
76  App.  Div.  (N.  T.)  623;  Goldberg  v.  Bes- 
dine,  76  App.  Div.  (N.  T.)  451;  Glass  v. 
Hauser,  38  Mise.  (N.  Y.)  780;  Dibble  v. 
State,  77  App.  Div.  (N.  Y.)  647;  Lippert  v. 
Leski.  79  App.  Div.  (N.  Y.)  632;  Forrest  v. 
Buchanan.  203  Pa.  454;  Houston  &  T.  C.  Ry. 
Co.  V.  Cluck  (Tex.  Civ.  App.)  72  S.  W.  83. 
Loss  of  profits — Consumers'  Ice  Co.  v.  Jen- 
nings (Va.)  42  S.  E.  879.  Amount  of  profits 
lost  by  delay  in  furnishing  machinery  for 
the  operation  of  a  street  railroad — Bristol 
Belt  Line  Ry.  Co.  v.  Bullock  Elec.  Mfg.  Co. 
(Va.)  44  S.  E.  892.  Value  of  stock  converted 
— Warren  v.  Strikeman,  84  App.  Div.  (N. 
Y.)  610.  Cost  of  completing  a  building — Cen- 
tral Lumber  Co.  v.  Kelter,   201  111.  503. 

43.  Rea  v.  St.  Louis  S.  W.  Ry.  Co.  (Tex. 
Civ.  App.)  73  S.  "W.  555;  Chicago  Terminal 
Transfer  R.  Co.  v.  Kotoski,  199  111.  383.  Acts 
or  occupation  showing  physical  strength — 
Birmingham    Ry.    &   Elec.    Co.    v.   Ellard,    135  | 


Ala.     433;    Heer    v.    Warren-Scharf    Asphalt 
Pav.  Co.   (Wis.)   94  N.  W.  789. 

43.  Statements  to  a  physician  as  to  past 
sufferings — Internatonal  &  G.  N.  R.  Co.  v. 
Boykin   (Tex.  Civ.  App.)    74   S.  W.   93. 

44.  Isherwood  v.  Lumber  Co..  87  Minn 
388. 

45.  Not  confined  to  the  effect  of  the  In- 
juries sued  upon — Lentz  v.  City  of  Dallas 
(Tex.)  72  S.  W.  59.  Testimony  as  to  effect  of 
assumed  injury  is  baa — Cronin  v.  Metropol- 
itan St.  Ry.   Co.,  82  App.  Div.   (N.  Y.)   227. 

46.  Louisville  &  N.  R.  Co.  v.  Collinsworth 
(Fla.)    33   So.    513. 

47.  Bopp  V.  New  York  Elec.  Vehicle 
Transp.   Co.,   78   App.   Div.    (N.  Y.)    337. 

48.  Chicago,  R.  I.  &  T.  Ry.  Co.  v.  Armes 
(Tex.   Civ.   App.)    74   S.   W.    77. 

49.  City  of  Dallas  v.  Moore  (Tex.  Civ. 
App.)    74    S.    W.    95. 

50.  Louisville  Bridge  Co.  v.  Louisville  & 
N.   R.   Co.    (Ky.)    75   S.   W.   285. 

51.  Galveston,  H.  &  S.  A.  Ry,  Co.  v.  Mort- 
son  (Tex.  Civ.  App.)  71  S.  W.  770;  Galves- 
ton, H.  &  S.  A.  Ry.  Co.  v.  Hubbard  (Tex. 
Civ.  App.)  70  S.  W.  112;  San  Antonio  &  A. 
P.  Ry.  Co.  V.  Moore  (Tex.  Civ.  App.)  72  S. 
W.  226.  Carlisle  tables  need  no  proof  of  their 
correctness — Atlanta  Ry.  &  Power  Co.  v. 
Monk  (Ga.)  45  S.  E.  494.  Defendant  not  prej- 
udiced by  an  instruction  assuming  the  Car- 
lisle tables  to  be  conclusive — Chicago,  R.  I. 
&  P.  R.  Co.  V.  Sizer  (Neb.)   95  N.  W.  498. 

52.  Coffeyville  Min.  &  Gas  Co.  v.  Carter, 
65    Kan.    5  65,    70    Pac.    635. 

53.  Denied  by  U.  S.  Supreme  Court — Union 
Pac.  Ry.  Co.  v.  Botsford,  141  U.  S.  250,  35 
Law.  Ed.  734.    A  like  rule  obtains  in  Texas — 


864 


DAMAGES. 


§  8C 


Sufficiency  of  evidence  is  shown  by  citations  below.'* 

(§8)  C.  Instructions. — Instructions  should  limit  the  recovery  to  such  dam- 
ages as  are  shown  by  the  evidence,"^^  and  to  the  amount  demanded.'^  The  instructions 
should  be  so  clear  as  not  to  mislead  the  jury."  An  instruction  that  the  jury  should 
take  into  consideration  mental  and  physical  pain  is  not  made  erroneous  by  the 
use  of  the  word  "should,"^*  nor  the  words  "may"  for  "will"  and  "has  sustained" 
for  "will  sustain.""^"  An  instruction  on  the  question  of  aggravation  of  an  injury 
by  unskillful  or  improper  treatment  should  state  the  exceptions  allowing  a  recov- 
ery where  diligence  has  been  usod.^''  It  is  not  proper  to  instruct  the  jury  to  con- 
sider the  probable  duration  of  plaintiff's  life  in  a  particularly  hazardous  business, 
unless  it  is  shown  that  plaintiff  intended  to  follow  that  business  for  the  remainder 
of  his  life.^^  Where  there  is  no  evidence  authorizing  the  allowance  of  exemplary 
damages,  the  court  should  instruct  that  if  plaintiff  is  entitled  to  any  damages  the 
jury  should  state  how  much  and  should  find  only  such  actual  damages  as  were 
proved  by  the  evidence.^-  Generally  speaking  it  is  not  material  whether  an  instruc- 
tion which  goes  simply  to  the  amount  of  the  damages  to  be  recovered  is  good  or 
bad,  if  the  jury,  upon  proper  instruction  as  to  the  question  of  negligence  on  main 
issue,  find  against  the  plaintiff.®*  There  is  no  prejudice  to  a  defendant  by  the 
statement  of  an  incorrect  rule  of  damages,  where  the  rule  adopted  diminished  the 
recovery  rather  than  increased  it.®*  An  instruction  on  humiliation  and  shame  is 
proper  though  these  elements  were  not  specifically  pleaded  and  though  there  was  no 
direct  testimony  on  the  point.®^ 

(§8)  D.  Verdicts  when  special  must  find  and  not  assume  all  the  facts  in  is- 
sue." A  separate  finding  of  exemplary  damages  must  be  requested®^  and  a  failure 
to  separately  state  them  does  not  vitiate  a  general  verdict.®* 


Austin  &  N.  W.  R.  Co.  v.  Cluck  (Tex.  Civ. 
App.)  73  S.  W.  569;  Gulf,  C.  &  S.  F.  Ry.  Co. 
V.  Brown  (Tex.  Civ.  App.)  75  S.  W.  807;  Gulf. 
C.  &  S.  F.  Ry.  Co.  V.  Gibbs  (Tex.  Civ.  App.) 
76  S.  W.  71.  Illinois  (Pittsburgh.  C,  C.  &  St. 
L.  Ry.  Co.  v.  Story,  104  111.  App.  132);  and 
Kentucky — Louisville  Ry.  Co.  v.  Hartlege. 
25  Ky.  L.  R.  152.  74  S.  W.  742.  Where  the 
Injured  person  refuses  a  personal  examina- 
tion, evidence  as  to  whether  the  examina- 
tion would  be  hurtful  to  his  case  is  inad- 
missible— Chicago  &  E.  I.  R.  Co.  v.  Stewart 
(111.)  67  N.  E.  830.  A  code  provision  allow- 
ing a  physical  examination  of  an  Injured 
person,  does  not  authorize  a  second  examina- 
tion on  a  subsequent  trial,  where  the  per- 
mission for  the  first  examination  was  volun- 
tarily given  (Code  Civ.  Proc.  §  873) — Whit- 
akor  V.  Staten  Island  Midland  R.  Co.,  76  App. 
Div.  (N.  Y.)   351. 

In  North  Dakota  It  is  recognized — Brown 
V.  Chicago.  M.  &  St.  P.  Ry.  Co.  (N.  D.)  95  N. 
W.  153.  See  ca.«?e  for  list  of  conflicting  au- 
thorities on  this  proposition. 

B4.  Willis  v.  Metropolitan  St.  Ry.  Co.. 
76  App.  Dlv.  (N.  Y.)  340;  Eichholz  v.  Niagara 
Falls  Hydraulic  Power  &  Mfg.  Co.  (N.  Y.) 
66  N.  E.  1107;  Comerford  v.  Smith.  82  App. 
Dlv.  (N.  Y.)  638;  First  Nat.  Bank  v.  San 
Antonio  &  A.  P.  Ry.  Co.  (Tex.  Civ.  App.)  72 
S.  W.  1033.  Permanency  of  injury — Ashley 
V.  Sioux  City  (Iowa)  93  N.  W.  303:  Louisville 
R.  Co.  V.  Casey.  24  Ky.  L.  R.  1527,  71  S.  W. 
876.  Loss  of  time — Sachra  v.  Town  of 
Manilla  (Iowa)  95  N.  W.  198.  Value  of 
wife's  services — Houston  &  T.  C.  R.  Co.  v. 
Harris  (Tex.  Civ.  App.)  70  S.  W.  335.  Loss 
of  future  earning  capacity — Hanlon  v.  Mil- 
waukee Elec.   Ry.   &  Light  Co.   (Wis.)   95  N. 


W.    100.      Rupture — Texas   &  N.    O.   R.   Co.    v. 
Lee   (Tex.  Civ.  App.)    74   S.   W.   345. 

55.  Brink's  Chicago  City  Exp.  Co.  v.  Her- 
ron,  104  111.  App.  269;  Denver  &  R.  G.  R.  Co.  v. 
Young  (Colo.)  70  Pac.  688;  Hoover  v.  Haynes 
(Neb.)  93  N.  W.  732;  Comstock  v.  Price.  103 
111.  App.  19;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Rob- 
inson (Tex.  Civ.  App.)  72  S.  W.  70.  Need  not 
expressly  do  so — Stanley  v.  Cedar  Rapids  & 
M.  C.  Ry.  Co.   (Iowa)    93  N.  W.  489. 

56.  Louisville  &  N.  R.  Co.  v.  V\'atklns.  24 
Ky.  L.  R.  1464,  71  S.  W.  882;  Morris  v.  Willi- 
ford    (Tex.   Civ.   App.)    70  S.   W.    228. 

57.  Held  not  to  authorize  double  damages 
—Missouri,  K.  &  T.  Ry.  Co.  v.  Flood  (Tex. 
Civ.  App.)  70  S.  W.  331.  As  to  lessened  earn- 
ings— St.  Louis  S.  W.  Ry.  Co.  v.  Byers  (Tex. 
Civ.  App.)  70  S.  W.  558.  As  to  unanticipated 
but  proximate  damages — Coleman  v.  Perry 
(Mont.)    72  Pac.   42. 

5S.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Col- 
lins   (Tex.   Civ.  App.)    71   S.  W.   560. 

59.  Baker  v.  City  of  Independence,  93  Mo. 
.\pp.    165. 

60.  Louisville  &  N.  R.  Co.  v.  Mason,  24 
Ky.   L.   R.    1623.    72   S.   W.   27. 

61.  Louisville  &  N.  R.  Co.  v.  Gordan,  24 
Ky.   L.   R.   1819,    72   S.   W.    311. 

C2.  Florida  Cent.  &  P.  R.  Co.  v.  Mooney 
(Fla.)    33    So.    1010. 

63.  Zimmerman  v.  Denver  Consol.  Tram- 
way  Co.    (Colo.    App)    72    Pac.    607. 

64.  Friedrich  v.  Milwaukee  (Wis.)  95  N. 
W.    126. 

6.5.  Berger  v.  Chicago  &  A,  Ry.  Co.  (Mo. 
App.)    71    S.   W.   102. 

66.  Bredlan  v.  York,  115  Wis.   554. 

67.  Foley  v.  Martin  (Cal.)  71  Pac.  165. 

68.  Frledly  v.  Glddlngs.  119  Fed.  438 


CURRENT  LAW. 

(Copyriglited  1904,  by  Joha  B.  West  Company.) 


Volume  I. 


JANUARY,  1904. 


NUMBEB  6. 


DEATH  AND  SURVIVORSHIP. 

Presumption  of  death. — The  absence  of  a  person  from  his  usual  place  of  abode 
for  seven  years  without  tidings  from  him  raises  a  presumption  of  his  death.^  The 
presumption  of  death  may  be  raised  in  less  time,  where  there  is  convincing  though 
not  actual  proof  of  loss  of  life.^ 

Letters  of  administration  are  prima  facie  evidence  of  death  of  one  on  whose 
estate  they  are  granted.^ 

Survivorship. — Under  the  common  law  there  is  no  presumption  of  survivor- 
ship depending  on  the  age,  sex,  or  physical  condition  of  persons  losing  their  lives 
in  a  common  disaster,  hence  evidence  on  that  question  is  required.* 

DEATH  BY  WRONGFUL  ACT. 


§  1.  Nature  and  Blements  of  Liability. 

§  2.  Wlio  May  Brins  Action. 

§  3.  Beneficiaries. 

§  4.  Damages. 


§5.  Actions.  —  Pleading;  Evidence;  In- 
structions; Questions  for  Jury;  Verdicts, 
Judgments  and  Costs. 

§  6.  Distributive  Rights  In  Amount  Re- 
covered. 


§  1.  Nature  and  elements  of  liability. — The  right  to  recover  for  wrongful 
death  is  purely  a  statutory  right  and  did  not  exist  under  the  common  law,^  except 
under  that  prevailing  in  Hawaii.* 


1.  This  was  the  rule  at  common  law — 
Ruoff  V.  Greenpoint  Sav.  Bank,  40  Misc.  (N. 
Y.)  549;  Griffin  v.  Southern  Ry.,  66  S.  C.  77. 
Proof  of  absence  for  more  than  seven  years 
Is  sufficient  where  there  is  no  rebutting 
proof — Wilcox  V.  Trenton  Potteries  Co.,  64 
N.  J.  Eq.  173.  A  statute  making'  seven 
years'  absence  a  presumption  of  death  un- 
less proof  is  made  of  life  within  that  time 
means  that  the  person  referred  to  must  ab- 
sent himself  from  his  home  and  proof  of 
change  of  residence  from  one  state  to  an- 
other and  that  he  lias  not  been  heard  of  In 
the  former  state  for  seven  years,  does  no*" 
make  a  case — Latham  v.  Tombs  (Tex.  Civ. 
App.)  73  S.  W.  1060.  A  code  provision  that  a 
person  on  wliose  life  an  estate  in  real  prop- 
erty depends  who  remains  without  the  Unit- 
ed States  and  absents  himself  for  seven 
years  altogether,  is  presumed  to  be  dead  in 
an  action  relating  to  the  property  in  which 
his  death  comes  in  question  has  reference  only 
to  a  case  where  the  right  to  possession  of 
real  property  depends  on  the  life  of  a  third 
person  and  does  not  apply  to  a  person  who  is 
the  owner  of  the  property,  and  the  widow 
and  heirs  at  law  of  the  owner  of  property 
sold  under  condemnation  proceedings  do  not 
show  the  death  of  the  owner  by  the  fact 
that  he  had  made  no  will  and  that  seven 
years  had  elapsed  since  he  had  been  seen 
or  heard  from;  there  must  be  other  evidence 


either  presumptive  or  direct  to  raise  the  pre- 
sumption of  death — In  re  Boerum  St.,  173  N 
Y.  321. 

2.  There  is  a  strong  presumption  of  death 
where  a  passenger  on  an  ocean  vessel  was 
seen  late  at  night  when  the  vessel  was  in 
mid-ocean  and  was  never  seen  or  heard  of 
afterwards  though  a  diligent  search  was 
made  for  him  the  next  morning — Traveler's 
Ins.  Co.  V.  Rosch,  23  Ohio  Circ.  R.  491. 

3.  Ruoff  V.  Greenpoint  Sav.  Bank,  40  Misc. 
(N.  Y.)   549. 

4.  Young  Women's  Christian  Home  v. 
French,  187  U.  S.  401,  47  Law.  Ed.  233;  Males 
V.  Sovereign  Camp  Woodmen  of  the  World 
(Tex.  Civ.  App.)  70  S.  W.  108;  Middeke  v. 
Balder,  198  111.  590.  59  L.  R.  A.  653.  Where 
testatrix  designated  a  charity  as  a  beneficiary 
in  the  event  that  she  survived  her  son  and 
husband  the  charity  will  take  to  the  exclu- 
sion of  next  of  kin  of  testatrix  or  her  son 
where  both  survive  the  husband  and  perish  in 
a  common  disaster  withoutproof  as  to  the  or- 
der   of   death,    the    intention    of    testatrix    to 

this     disposition     being     plainly     manifest 

Young   Women's   Christian   Home   v.   French 
187  U.  S.   401,  47  Law.  Ed.  233. 

5.  Louisville  &  N.  R.  Co.  v.  Jones  (Fla.) 
34  So.  246;  Peers  v.  Nevada  Power,  Light  & 
Water  Co..  119  Fed.  400. 

6.  The  common  law  of  Hawaii  is  adopted 
bv    Act   of   Congress — The    Schooner   Robert 


(§65) 


Curr.  Law — 55. 


866 


DEATH  BY  WRONGFUL  ACT. 


§2 


In  ^lichigan,  the  action  for  personal  injuries  survives  where  the  injured  per- 
sons live  an  appreciable  time  thereafter  and  the  action  must  be  prosecuted  for  the 
injury  and  not  for  the  wrongful  death/  In  Texas  the  opposite  rule  obtains  and 
the  action  for  the  injuries  does  not  survive.*  In  some  states,  plaintifE  may  recover 
in  one  action  for  injuries  to  deceased  and  for  the  wrongful  death.® 

There  can  be  no  recovery  under  the  general  maritime  law  for  damages  for 
negligence  resulting  in  death  on  the  high  seas.^"  Wliere  the  vessel  is  registered  in 
a  state  in  this  country,  the  action  may  be  brought  in  such  state,  as  the  injury,  in 
the  eye  of  the  law,  was  consummated  therein."  Wliere  the  statute  in  force  at  the 
place  of  collision  gives  a  rijht  of  action  to  the  widow  or  next  of  kin,  the  action 
may  be  enforced  in  a  court  of  admiralty  in  proceedings  by  the  owner  of  the  offending 
vessel  for  a  limitation  of  liability.^* 

The  negligence  of  defendant  must  be  the  proximate  cause  of  the  death."  ISTeg- 
ligence  of  the  nurse  in  a  smallpox  camp  in  connection  with  the  hospital  maintained 
by  the  railroad  as  a  part  of  its  legal  department  is  imputable  to  the  railroad  making 
it  liable  for  resulting  death,** 

The  law  of  the  state  where  the  wrongful  death  occurs  governs  though  the  ac- 
tion therefor  is  brought  in  another  state.*^ 

A  release  of  one  person  from  liability  for  an  accident  does  not  release  another, 
the  defendant,  unless  their  relation  made  them  joint  tort  feasors." 

§  2.  Who  may  bring  action. — ISTon-existence  of  any  of  the  persons  having  a 
precedent  right  to  sue  is  requisite,*^  and  defendant  may  show  as  a  matter  of  defense 


T.ewers  Co.  v.  Kekauoha  (C.  C.  A.)   114  Fed. 
849. 

7.  Olivier  v.  Houghton  County  St.  Ry.  Co. 
(Mich.)    96  N.  W.  434. 

See  Abatement  and  Revival,  (§  3  Surviva- 
bility of  Actions)  ante,  pp.  3,  4.  There  may 
be  a  recovery  for  pain  and  suffering  previ- 
ous to  death  together  with  decedent's  loss 
by  being  deprived  of  power  to  labor  during 
time  he  would  have  lived  if  not  injured — 
Olivier  v.  Houghton  County  St.  Ry.  Co. 
(Mich.)    96  N.  W.  434. 

8.  EUvson  V.  International  &  G.  N.  R.  Co. 
(Tex.  Civ.  App.)  75  S.  W.  868.- 

9.  Under  the  laws  of  Tennessee  damages 
to  the  deceased  accruing  up  to  the  time  of 
his  death  and  damages  to  widow  and  next 
of  kin  for  the  pecuniary  loss  sustained  by 
them  by  the  death,  may  be  recovered. 
(Shannon's  Code.  §§  4025.  4026.  4028)— David- 
son Benedict  Co.  v.  Severson.  109  Tenn.  572. 

The  damages  for  the  wrongful  death  are 
equivalent  to  loss  of  earning  capacity  to  one 
totally  disabled — Id.  The  Nevada  act  creat- 
ing liability  for  wrongful  death  where  the 
act  causing  death  is  such  as  would,  if  death 
had  not  ensued,  entitle  the  party  injured  to 
maintain  an  action,  the  action  to  be  brought 
by  a  personal  representative  of  deceased,  and 
prescribing  the  manner  for  distribution, 
creates  but  a  single  cause  of  action  and  not 
one  in  rieht  of  deceased  by  survival  and  the 
other  in  "the  right  of  the  next  of  kin— Peers 
V.  Nevada  Power,  Light  &  "Water  Co.,  119 
Fed.  400. 

10.  In  re  La  Bourgogne,  117  Fed.  261. 

11.  Lindstrom  v.  International  Nav.  Co., 
117  Fed.   170. 

12.  The  Northern  Queen,  117   Fed.   906. 
The    jurisdiction    of    admiralty    to    enforce 

such    causes    is    treated    in    Admiralty,    ante, 

p.  23. 

13.  It    is    not    important    that    the    negli- 


gence of  a  third  person  may  also  have  con- 
tributed to  the  accident — Neal  v.  Wilmington 
.t-  N.  C.  Elec.  R.  Co.,  3  Pen.  (Del.)  467.  To 
attribute  death  to  two  or  more  concurrent 
causes,  each  must  be  a  prominent  efficient 
cause,  for  if  one  of  the  alleged  causes  oper- 
ates slightly  with  another,  which  is  the 
prominent  efficient  cause,  then  the  proxi- 
mate cause  of  death  should  be  traced  to  the 
latter — Ellyson  v.  International  &  G.  N.  R. 
Co.  (Tex.  Civ.  App.)  75  S.  'W.  868.  The  vol- 
untary willful  act  of  suicide  of  an  insane 
person  whose  insanity  was  caused  by  a  rail- 
road accident,  and  who  knows  the  purpose 
md  the  physical  effect  of  his  act,  is  a  new 
ind  independent  agency  not  flowing  from  the 
iccident- — Daniels  v.  New  York,  N.  H.  &  H. 
R.  Co.   (Mass.)   67  N.  E.  424. 

14.  Missouri,  K.  &  T.  Ry.  Co.  v.  Freeman 
(Tex.  Civ.  App.)   73  S.  W.   542. 

15.  Foreign  cause  of  action  recognized — 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.   Haist   (Ark.) 

72  S.  W.  893. 

Parties  who  may  sue — Fabel  v.  Cleveland, 
C,  C.  &  St.  L.  R.  Co.,  30  Ind.  App.  268;  Mc- 
Ginnis  v.  Missouri  Car  &  Foundry  Co.   (Mo.) 

73  S.  W.  586.  A  non-resident  widow  could 
not  sue  for  wrongful  death  in  "Wisconsin,  the 
statute  of  that  state  giving  the  right  of  ac- 
tion to  the  personal  representative  of  the  de- 
ceased for  the  benefit  of  the  husband  or  wid- 
ow— McMillan  v.  Spider  Lake  Saw  Mill  & 
Lumber  Co.,   115  "Wis.   332. 

16.  The  employer  of  a  teamster  killed  by 
negligence  of  a  street  railw^ay  company  in 
running  a  car  upon  him  after  the  wheel  of 
his  wagon  had  broken  and  thrown  him  on 
the  track  is  not  a  joint  tort  feasor — O'Brien 
v.  Brooklyn  Heights  R.  Co.,  80  App.  Div. 
(N.  Y.)   474. 

17.  Laws  of  Florida  of  1883.  c.  3439,  § 
2  (Rev.  St.  Fla.  §  2343)  gives  the  right  to  re- 
cover   for   wrongful    death    to    the    widow   or 


§3 


BENEFICIARIES. 


8b7 


that  there  is  in  being  a  person  given  by  statute  a  precedent  right  of  action  over 
plaintiff.^* 

In  some  states  the  action  can  only  be  brought  by  the  representative  of  de- 
ceased for  the  benefit  of  the  parties  entitled  to  the  recovery,"  and  the  appointment 
of  a  special  administrator  is  not  required.^"  This  allows  the  suit  to  be  prosecuted  by 
a  foreign  administrator.^*  The  widow's  acceptance  of  a  benefit  certificate  will  not 
bar  an  action  by  the  personal  representative  of  the  deceased  against  the  company  for 
the  benefit  of  minor  children.-^  In  other  states  the  action  in  certain  cases  is  made 
personal  to  the  designated  beneficiaries  and  may  not  be  brought  by  the  representa- 
tive of  the  deceased.^'  In  still  other  states  the  action  may  be  brought  by  either  the 
heirs  or  the  personal  representative  of  deceased.^* 

The  fact  that  the  parties  entitled  to  sue  are  nonresident  aliens  will  not  prevent 
a  recovery.-^ 

§  3.  Beneficiaries. — Many  of  the  statutes  make  the  right  to  the  recovery  de- 
pend on  whether  the  party  was  dependent  on  deceased  for  support.  In  such  cases  the 
fact  of  dependency  must  be  established.^® 


husband  of  deceased;  If  there  are  neither 
widow  nor  husband  then  to  the  minor  child 
or  children;  where  there  Is  neither  widow 
nor  husband  nor  minor  children  then  to  any 
person  dependent  on  the  person  killed;  and 
where  there  is  neither  of  the  above  classes 
then  to  the  executor  or  administrator  of  the 
person  killed — Louisville  &  N.  R.  Co.  v.  Jones 
(Fla.)  34  So.  246.  The  Missouri  act  provid- 
ing that  a  right  of  action  shall  accrue  to  the 
widow  of  a  person  so  killed,  his  lineal  heirs 
or  adopted  children,  or  to  any  person  or  per- 
sons who  were  before  such  loss  of  life  de- 
pendent for  support  on  the  person  so  killed, 
gives  separate  and  alternative  rights  of  ac- 
tion first  to  the  widow,  if  there  is  one,  sec- 
ond to  the  lineal  heirs  or  adopted  children, 
and  third  to  persons  dependent,  and  under 
this  act  where  the  widow  de  jure  is  alive,  no 
action  can  be  maintained  by  the  children  of 
the  deceased.  The  right  to  maintain  suit  by 
the  widow  is  not  affected  by  her  personal 
misconduct — Cole  v.  Mayne,  122  Fed.  836; 
Poor  V.  Watson.  92  Mo.  App.  89. 

IS.  LniTisville  &  N.  R.  Co.  v.  Jones  (Fla.) 
34  So.  246. 

i;>.  Wetherell  v.  Chicago  City  R.  Co.,  104 
111.  App.  357;  Peers  v.  Nevada  Power,  Light 
&  Water  Co.,  119  Fed.  400;  Carrigan  v.  Still- 
well.  97  Me.  247.  The  laws  of  Oregon  per- 
mit the  action  to  be  brought  by  the  personal 
representative  of  a  minor  though  he  leaves 
surviving  him  a  father,  mother  or  guardian 
(B.  &  C.  Comp.,  §§  34,  379.  381) — Schleiger  v. 
Northern  Terminal  Co.  (Or.)  72  Pac.  324. 

20.  Burns'  Rev.  St.  1901,  §  285 — Lake  Erie 
&  "W.  R.  Co.  V.  Charman  (Ind.)   67  N.  E.  923. 

21.  Boulden  v.  Pennsylvania  R.  Co.  (Pa.) 
54  Atl.  906.  Rev.  St.  Fla.  §§  2342,  2343 — Flori- 
da Cent.  &  P.  R.  Co.  v.  Sullivan  (C.  C.  A.)  120 
Fed.  790;  Harrill  v.  South  Carolina  &  G.  Ex- 
tension Ry.  Co.   (N.  C.)    44  S.  E.   109. 

22.  Ovster  v.  Burlington  Relief  Depart- 
ment  (Neb.)   91  N.  ^W.   699,  59  L.  R.  A.  291. 

23.  The  laws  of  Indiana  allowing  an  ac- 
tion for  wrongful  death  of  men  employed  in 
mines  in  excess  of  the  number  prescribed, 
intends  the  right  of  action  as  personal  to 
the  widow  and  children  of  the  deceased  and 
does  not  allow  the  action  to  be  maintained 
by  the  administrator  of  deceased — L.  T. 
Dickason  Coal  Co.  v.  Unverferth,  30   Ind.  App. 


546.  Under  the  laws  of  New  Mexico  giving 
the  right  of  action  for  death  caused  by  rail- 
road accidents  to  the  husband  or  wife  of  de- 
ceased, or  if  there  be  no  husband  or  wife 
then  to  the  minor  children,  or  if  there  be  no 
minor  children  then  to  the  father  or  mother 
of  either  of  them,  the  action  cannot  be  prose- 
cuted in  favor  of  legal  representatives  of 
the  deceased.  (Comp.  Laws  N.  Mex.  1897,  5 
3213) — Romero  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.  (N.  Mex.)  72  Pac.  37.  Under  the  Penn- 
sylvania Act  of  1855,  the  widow  alone  could 
maintain  the  action  though  deceased  left 
children  surviving  him — Marsh  v.  Western 
N.  Y.  &  P.  Ry.  Co.,  204  Pa.   229. 

24.  Under  a  statute  allowing  the  action 
to  be  brought  by  the  heirs  of  the  deceased  or 
his  personal  representatives,  an  administra- 
tor can  sue  only  where  there  are  heirs,  as  the 
right  of  action  is  for  their  benefit — Webster 
V.  Norwegian  Min.  Co.,  137  Cal.  399,  70  Pac. 
276.  The  fact  that  the  only  heirs  of  dece- 
dent had  assigned  all  their  Interest  in  the 
cause  of  action  to  the  administrator  of  de- 
ceased before  the  commencement  of  the  suit, 
and  the  administrator  a,ppeared  as  plain- 
tiff, will  not  bar  the  action  where  the  stat- 
ute allows  the  suit  to  be  brought  either  by 
the  heirs  or  the  administrator,  as  the  ad- 
ministrator was  entitled  to  sue  in  his  own 
right  and  recovery  by  him  would  bar  a  sub- 
sequent action.  (Rev.  St.  of  Utah,  §  2912) — 
Fritz  V.  Western  Union  Tel.  Co.,  25  Utah, 
263.  71  Pac.  209. 

25.  Gen.  St.  1894,  §  5913 — Renlund  v.  Com- 
modore Min.  Co.  (Minn.)  93  N.  W.  1057.  Code, 
Ariz.  1887,  §§  2145,  2149,  2150 — Bonthron  v. 
Phoenix  Light  &  Fuel  Co.  (Ariz.)  71  Pac. 
941. 

26.  Kurd's  Rev.  St.  1899,  p.  1775 — Willis 
Coal  &  Min.  Co.  v.  Grizzell,  198  111.  313.  A 
mother  in  indigent  circumstances,  living 
generally  with  her  unmarried  son  and  de- 
pendent on  him  for  support,  is  dependent 
within  the  meaning  of  the  statute  giving  the 
right  of  action  to  persons  dependent  for  sup- 
port on  one  killed  by  reason  of  the  violation 
of  the  mining  laws  by  the  owner  of  the 
mine — Bowerman  v.  Lackawanna  Min.  Co. 
(Mo.  App.)  71  S.  W.  1062.  The  dependent  con- 
dition of  a  father  is  shown  by  the  fact  that 
he  lived  In  a  foreign  country,  was  advanced 


868 


DEATH  BY  WRONGFUL  ACT. 


Minor  ^andchildren  are  not  included  in  the  term  "minor  children"  in  the 
liOuisiana  statute.^^  The  mother  of  an  illegitimate  child  may  not  sue  for  his  wrong- 
ful death  under  the  laws  of  Georgia.^*  The  next  of  kin  of  a  child  are  the  next  of 
kin  by  blood  and  not  the  adopting  parents.^®  A  posthumous  child  is  not  deprived 
of  his  cause  of  action  by  the  fact  that  the  mother  and  other  children  have  recovered 
damages  for  the  death.^" 

§  4.  Damages. — The  jury  in  considering  the  amount  of  recovery  may  prop- 
erly take  into  consideration  the  age,  habits  of  industry,  capacity  for  labor,  and 
probable  earnings  of  deceased,^^  the  number,  age,  and  sex  of  decedent's  children  de- 
pendent on  him  for  support,^^  the  special  aptitude  of  a  boy  for  a  particular  trade 
on  the  question  of  his  earning  capacity,^*  the  condition  of  decedent's  health  as  bear- 
ing on  the  pecuniary  value  of  his  life  to  plaintiff,^*  the  ability  of  the  deceased  to 
earn  money  and  his  disposition  to  contribute  to  the  support  of  his  family.  ^^  They 
may  not  consider  prospective  advances  in  salary  to  deceased  based  on  the  prosperity 
of  his  employer's  business,^®  nor  the  habits  and  moral  character  of  the  widow  of  de- 
ceased.'^ A  widow  may  recover  such  a  sum  as  will  reasonably  compensate  her  for 
all  damage  sustained  or  that  she  may  subsequently  sustain  by  reason  of  her  hus- 


In  years,  destitute,  feeble  and  unable  to 
work,  and  that  deceased  had  on  numerous 
occasions  sent  him  money  for  his  support — 
Boyle  V.  Columbian  Fire  Proofing  Co.,  182 
Mass.  93.  The  dependent  condition  of  a 
mother  is  shown  by  evidence  that  she  had 
no  property  but  her  house  and  no  support  ex- 
cept what  she  received  from  her  sons,  and 
that  other  children  occupied  the  home  with 
the  mother  paying  only  a  small  sum  for  their 
board,  and  that  deceased  had  promised  to 
take  care  of  liis  motlier  and  had  at  different 
times  sent  her  money — Id.  On  the  question  of 
dependency  of  a  mother  on  her  son  for  sup- 
port, evidence  is  admissible  of  his  promise  a 
few  days  before  his  death,  to  help  her  all  he 
could  and  to  send  money  at  stated  intervals 
— Id.  An  invalid  adult  to  whom  a  father 
gave  money  when  requested,  has  such  a  pe- 
cuniary interest  in  the  life  of  the  father  as 
to  entitle  her  to  share  in  damages  recovered 
for  his  death — Duzan  v.  Myers,  30  Ind.  App. 
227.  Where  the  issue  is  as  to  whether  a  per- 
son is  dependent  on  the  deceased  for  support 
It  may  be  shown  that  regardless  of  any  strict 
legal  right  to  such  support,  tlie  person  was 
because  of  some  dNability  coupled  with  lack 
of  property,  dependent  on  deceased  for  sup- 
port, and  that  by  reason  of  past  support  the 
person  had  a  reasonable  expectancy  of  its 
continuation  had  deceased  lived — Louisville 
&  N.  R.  Co.  V.  Jones  (Fla.)  34  So.  246.  A 
recovery  in  favor  of  a  father  is  erroneous 
where  there  was  no  evidence  that  the  father 
received  any  pecuniary  benefits  from  the 
earnings  of  deceased  at  the  time  of  his  death 
or  that  he  had  any  reasonable  expectation 
of  ever  sharing  in  such  earnings — r^Iissouri, 
K.  &  T.  Ry.  Co.  V.  Freeman  (Tex.  Civ.  App.) 
73  S.  W.  542.  "Where  It  is  shown  that  de- 
ceased was  unmarried  and  had  sent  sums  of. 
money  to  his  parents  at  different  times,  tes- 
timony as  to  his  paying  attention  to  some 
young  lady  was  properly  excluded  as  too 
remote  to  affect  the  recovery  for  support  of 
parents — Fritz  v.  Western  Union  Tel.  Co., 
25  Utah,   263.  71  Pac.  209. 

27.  W^alker  v.  Vicksburg,  S.   &  P.   Ry.   Co. 
(La.)    34  So.   749. 

28.  Robinson    v.    Georgia    R.    &    Banking 
Co..  117  Ga.  168. 


29.  2  Gen.  St.  N.  J.  p.  1714 — Heidecamp 
V.  Jersey  City,  H.  &  P.  St.  Ry.  Co.  (N.  J. 
Law)  55  Atl.  239. 

30.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Con- 
treras  (Tex.  Civ.  App.)   72  S.  W.  1051. 

31.  Knight  v.  Sadtler  Lead  &  Zinc  Co.,  91 
Mo.  App.  574;  Davidson  Benedict  Co.  v.  Sev- 
erson.  109  Tenn.  572;  Watson  v.  Seaboard 
Air  Line  Ry.  (N.  C.)  45  S.  E.  555.  An  instruc- 
tion that  the  measure  of  damages  for  wrong- 
ful death  is  such  sum  as  would  represent  the 
value  of  the  future  earnings  of  deceased 
which  the  beneficiaries  had  reasonable  ex- 
pectation he  would  contribute  to  them  if  he 
had  lived,  and  in  determining  the  amount  of 
damages  sustained  by  them,  the  jury  could 
consider  the  deceased's  earning  capacity,  his 
age  and  life  expectancy,  is  not  open  to  the 
construction  that  it  allows  plaintiffs  to  re- 
cover all  the  future  earnings  of  deceased — 
St.  Louis  S.  W.  Ry.  Co.  v.  Bowles  (Tex. 
Civ.  App.)  72  S.  W.  451. 

32.  Coffeyville  Min.  &  Gas  Co.  v.  Carter. 
65  Kan.  565,  70  Pac.  635.  On  the  question  of 
the  amount  the  deceased  would  have  contrib- 
uted to  support,  evidence  is  admissible  to 
show  that  a  married  daughter  separated 
from  her  husband  accompanied  by  her  chil- 
dren was  on  her  way  to  live  with  and  be 
supported  by  her  father  at  time  of  his  death, 
and  that  another  daughter  was  dying  with 
consumption  and  unable  to  support  herself — 
St.  Louis  S.  W.  Ry.  Co.  v.  Bowles  (Tex.  Civ. 
App.)  72  S.  W.  451.  In  an  action  by  a 
child  for  the  wrongful  death  of  parent,  he 
may  show  that  his  mother  and  numerous 
other  children  are  living  and  entitled  to  re- 
cover pecuniary  damages,  as  bearing  on  the 
extent  of  his  recovery — Galveston,  H.  &  S. 
A.  Ry.  Co.  v.  Contreras  (Tex.  Civ.  App.)  72 
S.  W.  1051. 

33.  Snyder  v.  Lake  Shore  &  M.  S.  Ry. 
Co.   (Mich.)   91  N.  W.  643. 

34.  35.  Coffeyville  Min.  &  Gas  Co.  v.  Car- 
ter, 65  Kan.   565,   70  Pac.   635. 

30.  Fajardo  v.  New  York  Cent.  &  H.  R. 
R.  Co.,   84  App.  Div.   (N.  Y.)    354. 

37.  Consolidated  Stone  Co.  v.  Morgan 
(Ind.)   66  N.  E.  696. 


§4 


DAMAGES. 


869 


band's  death,  basing  the  calculation  on  the  number  of  years  he  would  probably  have 
lived.^®     The  amount  of  the  recovery  is  not  affected  by  her  subsequent  marriage.^^ 

For  the  death  of  a  parent,  the  recovery  may  include  the  value  of  his  services  for 
care,  sustenance,  and  education  of  his  minor  children.*"  The  damages  to  the  child 
are  not  limited  to  those  accruing  during  his  minority.*^ 

Parents  are  not  limited,  in  the  matter  of  recovery,  to  the  ability  of  the  deceased 
to  earn  wages  during  his  minority,  but  the  jury  may  take  into  consideration  the 
reasonable  expectation  of  the  parents  of  benefits  from  the  continuation  of  the  life 
of  their  son.*^  The  recovery  may  include  loss  of  services  of  a  child  and  its  society 
and  comfort  but  not  for  sorrow,  grief,  or  anguish  to  the  parents  or  pain  and  suf- 
fering to  the  child.*^  A  mother  in  indigent  circumstances,  entitled  to  recover  at 
all  for  the  wrongful  death  of  her  son,  should  recover  more  than  merely  nominal 
damages  under  a  law  giving  a  right  of  action  to  dependent  persons  killed  by  rea- 
son of  violation  of  mining  laws  by  the  owner  of  the  mine.** 

The  expectancy  of  life  may  be  shown  as  bearing  on  the  amount  of  damages 
caused  by  his  death,*'  unless  the  deceased  was  engaged  in  a  particularly  dangerous 
occupation,*®  This  expectancy  may  be  showoi  by  any  proper  evidence.*^  This  does 
not  allow  evidence  of  the  longevity  of  the  father  of  deceased.*^  Under  laws  allow- 
ing recovery  of  such  damages  as  may  be  just,  the  ages  and  expectancy  of  life  of  the 
beneficiaries  where  they  are  dependent  in  whole  or  in  part  on  the  deceased  may  be 
taken  into  account  in  fixing  the  damages.*^  The  jury  are  not  required  to  take  into 
consideration  the  possibility  of  deceased  becoming  impoverished  and  his  children 
being  required  to  support  him  in  his  old  age.'° 

The  amount  plaintiff  is  entitled  to  recover  is  properly  termed  a  "capital  fund' ' 
which  represents  the  present  value  of  all  the  pecuniary  loss.^^ 

Under  the  laws  of  Michigan,  the  plaintiff  may  recover  the  same  damages  for  in- 
juries to  his  intestate  that  the  intestate  would  have  recovered  if  he  had  lived.'^ 

In  South  Carolina  the  heirs  may  recover  for  loss  resulting  from  grief  or  mental 
suffering.*' 


38.  Cox  V.  Wilmington  City  Ry.  Co.  (Del.) 
53  All.  5G9. 

39.  Consolidated  Stone  Co.  v.  Morgan 
(Ind.)   66  N.  E.   696. 

40.  Anthony  Ittner  Brick  Co.  v.  Ashby, 
198  111.  562;  Sternfels  v.  Metropolitan  St.  Ry. 
Co..  174  N.  Y.  512;  Galveston,  H.  &  S.  A. 
Ry.  Co.  V.  Puente  (Tex.  Civ.  App.)  70  S.  W. 
S62;  St.  Louis.  I.  M.  &  S.  Ry.  Co.  v.  Haist 
(Ark.)  72  S.  W.  893. 

41.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Puente 
(Tex.  Civ.  App.)   70  S.  W.  362. 

43.  Chicago  &  E.  I.  R.  Co.  v.  Beaver,  199 
111.  34;  Draper  v.  Tucker  (Neb.)  95  N.  W. 
1026;  Corbett  v.  Oregon  Short  Line  R.  Co., 
25  Utah.  449.  71  Pac.  1065. 

4.3.  Corbett  v.  Oregon  Short  Line  R.  Co., 
25  Utah,   449.  71  Pac.  1065. 

44.  Bowerman  v.  Lackawanna  Min.  Co. 
(Mo.  App.)   71  S.  W.  1062. 

43.  Coffeyville  Min.  &  Gas  Co.  v.  Carter, 
65  Kan.  565.  70  Pac.  635. 

46.  Western  &  A.  R.  Co.  v.  Clark  (Ga.) 
44  S.  E.  1. 

47.  Haines  v.  Pearson  (Mo.  App.)  75  S. 
W.  194. 

48.  Hinsdale  v.  New  York,  N.  H.  &  H.  R. 
Co..   81  App.   Div.    (N.   Y.)    617. 

49.  Code  Civ.  Proc.  Cal.  §  377 — The  Daunt- 
less, 121  Fed.   420. 

50.  Sternfels  v.  Metropolitan  £  Ry.  Co., 
174  N.  Y.   512. 

51.  Hackney  v.  Delaware  &  A.  Telegraph 


&  Telephone  Co.  (N.  J.  Law)  55  Atl.  252; 
Watson  v.  Seaboard  Air  Line  Ry.  (N.  C  ) 
45  S.  E.  555;  Florida  Cent.  &  P.  R.  Co  v 
Sullivan  (C.  C.  A.)  120  Fed.  799;  Merchants' 
&  P.  Oil  Co.  v.  Burns  (Tex.)  74  S.  W.  758. 
In  Delaware  it  is  held  that  the  recovery  is 
properly  limited  to  such  a  sum  as  deceased 
would  probably  have  earned  in  his  business 
in  life  and  left  as  his  estate,  taking  into  con- 
sideration his  age.  ability,  habits  of  indus- 
try and  his  expenditures.  Neal  v.  V\^ilming- 
ton  &  N.  C.  Elec.  R.  Co.,  3  Pen.  (Del.)  467. 
Under  a  Code  provision  allowing  recovery  of 
damages  In  such  sum  as  the  jury  deems  just 
compensation  for  pecuniary  injuries  result- 
ing from  death,  it  is  not  a  just  measure  of 
damages  to  instruct  that  the  recovery  should 
be  limited  to  such  an  amount  as  the  current 
rate  of  interest  for  trust  investments  would 
bring  an  amount  equal  to  the  earning  power 
of  the  deceased — Fajardo  v.  New  York  Cent. 
&  H.  R.  R.  Co.,  84  App.  Div.  (N.  Y.  354.  In 
an  action  for  wrongful  death,  on  the  ques- 
tion of  damages  evidence  of  the  cost  of  an- 
nuity based  on  deceased's  expectancy  of  life, 
sufficient  to  produce  a  yearly  income  equal 
to  his  yearly  income  at  time  of  his  death, 
is  inadmissible — Hinsdale  v.  New  York,  n! 
H.  &  H.  R.  Co..  81  App.  Div.   (N.  Y.)  617. 

.52.  Comp.  Laws  Mich.  §  10.117 — Kyes  v. 
Valley  Tel.  Co.    (Mich.)    93  N.  W.   623. 

53.     Brown   v.   Southern  Ry.,   65   S.   C.   260. 


870 


DEATH  BY  WRONGFUL  ACT. 


§4 


Under  the  constitution  and  laws  of  Texas  allowing  the  recovery  of  exemplary 
damages  for  the  commission  of  a  willful  homicide,  where  the  evidence  justifies  the 
direction  of  a  verdict  for  plaintiff,  it  is  not  error  to  instruct  the  jury  as  a  matter 
of  law  to  award  exemplary  as  well  as  actual  damages.^* 

It  may  not  be  showm  in  mitigation  of  damages  that  the  mother  of  the  deceased 
would  receive  benefits  from  a  relief  association,"  and  the  amount  of  property  left 
bv  deceased  may  not  be  inquired  about."  Declarations  of  deceased  that  his  chil- 
dren are  trying  to  get  his  property  from  him  may  not  be  shown  in  mitigation  of 
dama«^es."  Excessiveness  and  adequacy  of  recovery  have  been  passed  on  in  cases 
cited."  WTiere  punitive  damages  are  not  recoverable,  the  recovery  is  excessive 
where  the  loss  of  society  and  comfort  of  a  husband  is  estimated  at  a  greater  valua- 


54.  Const.  Tex.  1876,  art.  16,  §  26,  and 
Rev.  St.  Tex.  art.  3019 — Morgan  v.  Barn- 
hin   (C.  C.  A.)    118  Fed.  24. 

55.  Boulden  v.  Pennsylvania  R.  Co.  (Pa.) 
54  Atl.  906. 

56.  Comp.  St.  1901,  c.  21,  §  2— Chicago, 
R.  I.  &  P.  Ry.  Co.  V.  Holmes  (Neb.)  94  N. 
W.  1007.  The  pecuniary  condition  and  re- 
sources of  the  widow  or  next  of  kin  or  their 
unfortunate  condition  may  not  be  shown  but 
It  Is  not  error  to  allow  proof  of  the  earnings 
of  the  deceased  and  that  the  wife  and  chil- 
dren were  supported  by  him — Pittsburgh,  C, 
C.   &  St.  L.  R.  Co.  V.  Klnnare.   203  111.   388. 

67.     Brown   v.    Southern   Ry.,   65    S.   C.    260. 

58.  Amounts  held  not  excessive:  $1,500 
(boy  181/1.  years  of  age.  earning  $2  a  day, 
and  assisting  his  mother  In  the  housework, 
and  contributing  a  portion  of  his  earnings 
to  the  support  of  the  family) — Stumbo  v.  Du- 
luth  Zinc  Co.  (Mo.  App.)  75  S.  W.  185.  $1,518 
(boy  six  years  old) — Hoon  v.  Beaver  Valley 
Traction  Co..  204  Pa.  369.  $25,000  (battalion 
chief  in  a  fire  department  receiving  $3,300  a 
year  whose  income  was  the  sole  support  of 
his  wife  and  two  children  aged  8  and  12 
years,  he  being  38  years  of  age  at  the  time 
of  his  death) — Lane  v.  Brooklyn  Heights  R. 
Co..  82  N.  Y.  Supp.  1057.  $25,000  (one  62 
years  of  age,  In  good  health,  with  a  life  ex- 
pectancy of  13  years,  who  had  accumulated 
considerable  property  and  expended  for  his 
own  and  his  family's  support  about  $5,000  a 
year) — Sternfels  v.  Metropolitan  St.  Ry.  Co. 
174  N.  Y.  512.  $5,000  (bright,  active  boy  of 
16  years,  who  for  nearly  three  years  had 
been  a  general  clerk  in  a  grocery  store 
though  this  is  the  extreme  statutory  limit  of 
recovery) — Nelson  v.  Branford  Lighting  & 
Water  Co.,  75  Conn.  548.  $5,000  (man  37 
years  of  age  earning  $9  a  week  and  leaving 
a  wife  and  four  children) — Geismann  v.  Mis- 
souri Edison  Elec.  Co.  (Mo.)  73  S.  "W.  654. 
$2,750  (boy  of  6  particularly  where  two  jur- 
ies have  returned  the  same  verdict) — Gray 
V.  St.  Paul  City  Ry.  Co.,  87  Minn.  280.  $1,100 
(man  35  years  of  age,  earning  $1,800  a  year 
and  accustomed  to  render  assistance  to 
plaintiffs)— Chicago,  R.  I.  &  P.  R.  Co.  v. 
Young  (Neb.)   93  N.  W.  922. 

Second  verdict  for  less  than  might  have 
been  given  under  the  mortuary  tables  will 
stand  on  appeal — Georgia,  C.  &  N.  Ry.  Co.  v. 
Mathews.  116  Ga.   424. 

Amounts  held  excessive:  $3,500  (a  bright, 
healthy  girl  between  8  and  9  years  of  age 
who  lived  with  her  mother  apnrt  from  her 
father,    $2,500    being    ample) — Wells    v.    New 


York  Cent.  &  H.  R.  R.  Co.,  78  App.  DIv.  (N. 
Y.)  1.  $10,000  (a  miner  55  years  of  age  re- 
ceiving $50  a  month,  w^hose  expectancy  was  17 
years,  $6,000  being  ample) — Vowell  v.  Issa- 
quah  Coal  Co.,  31  Wash.  103,  71  Pac.  725. 
$6,000  (an  ordinarily  bright  boy  4  years  and 
4  months  of  age.  $3,000  being  ample) — Hive- 
ly  V.  Webster  County,  117  Iowa,  672.  $5,000 
(a  daughter,  a  domestic  servant  23  years  of 
age  who  remitted  to  her  father  about  $3.00 
1  month,  $1,500  being  ample) — Lindstrom  v. 
International  Nav.  Co.,  117  Fed.  170.  $3,000 
(malpractice  resulting  In  death  where  the 
physician  had  the  patient  under  his  care  six 
lays) — Ramsdell  v.  Grady,  97  Me.  319.  $5,- 
JOO  (a  track  walker  earning  i\.i^  a  day, 
$4,000  being  ample) — Erie  R.  Co.  v.  McCor- 
mlck.  24  Ohio  Circ.  R.  86.  $10,000  (a  man 
of  73  years,  engaged  in  successful  business, 
leaving  a  wife  and  adult  children,  and  giv- 
ing financial  assistance  only  to  the  wife, 
$5,000  being  ample) — Stilllngs  v.  Metropoli- 
tan St.  Ry.  Co.,  84  App.  Div.  (N.  Y.)  201. 
Adequacy  of  recovery:  $10  Is  a  grossly 
inadequate  recovery  for  the  death  of  a 
child  three  years  and  four  months  old — Dra- 
per V.  Tucker  (Neb.)  95  N.  W.  1026.  $500 
(death  of  a  scowman  leaving  two  sisters 
who  supported  themselves  to  whom  he  had 
promised  funds  to  take  them  back  to  the 
old  country  to  live) — The  O.  L.  Hallenbeck, 
119  Fed.  468.  $10,000  (death  of  a  milk  driver 
35  years  of  age  earning  $12  a  week,  leaving 
a  widow  and  two  daughters  aged  9  and  12 
years) — Stevens  v.  Union  Ry.  Co.,  75  App. 
Div.  (N.  Y.)  602.  $250  not  so  grossly  in- 
adequate as  to  justify  granting  of  a  new 
trial  in  an  action  for  the  death  of  a  boy  be- 
tween eleven  and  twelve  years  of  age. 
though  It  was  shown  that  within  a  year 
from  the  time  of  his  death  he  would  have 
been  able  to  earn  from  $12  to  $15  a  week 
and  there  was  some  evidence  that  a  boy 
of  deceased's  age  would  not  earn  more  than 
the  cost  of  his  maintenance  before  reaching 
his  majority — Snyder  v.  Lake  Shore  &  M.  S. 
Ry.  Co.  (Mich.)  91  N.  W.  643.  $200  not 
grossly  inadequate  for  the  wrongful  death 
of  an  infant  6  years  of  age — Gubbitosi  v. 
Rothschild,  75  App.  Div.  477,  12  N.  Y.  Ann. 
Cas.  16.  $750  not  grossly  inadequate  for 
death  of  boy  of  5  years — Schnable  v.  Provi- 
dence Public  Market,  24  R.  I.  477.  $3,600 
(death  of  man  50  years  of  age  earning  $10 
a  week,  leaving  a  widow  and  four  children 
one  of  whom  was  self-supporting  and  the 
others  aged  respectively  13,  6  and  5  years)  — 
Garbaccio  v.  Jersey  City,  H.  &  P.  St.  Ry.  Co. 
(N.   J.)    53   Atl.    707. 


ACTIONS. 


871 


tion  than  the  amount  of  the  actual  and  substantial  pecuniary  value  of  his  life.^" 
It  is  not  error  to  allow  the  full  statutory  damages  though  it  does  appear  that  the 
party  lived  for  some  minutes  after  the  accident  and  suffered  some  pain,  where  there 
was  little  or  no  contest  as  to  the  amount  of  the  damages  and  the  attention  of  the 
court  was  not  called  to  the  matter  except  by  a  somewhat  ambiguous  claim  of  law.^° 

§  5.  Actions, — A  requirement  of  notice  of  injury  as  a  condition  precedent  to 
the  action  does  not  apply  to  actions  for  death. ^^  Especially  when  the  right  of  action 
for  wrongful  death  is  secured  from  abrogation  by  a  state  constitution.*^-  Contrib- 
utory negligence  of  deceased  may  be  urged  in  defense  of  the  action/^  but  not  where 
v/antonness  on  the  part  of  defendant  is  charged.^* 

To  determine  the  jurisdiction  of  the  Federal  court  on  the  ground  of  diverse  citi- 
zenship, it  is  the  citizenship  of  the  administrator  and  not  of  the  beneficiaries  that 
controls.^'' 

The  laws  of  Utah  allow  the  action  to  be  brought  either  in  the  county  where  the 
injury  was  inflicted  or  in  the  county  where  the  death  occurred.®® 

The  action  is  commenced  when  the  process  is  put  in  the  hands  of  the  sheriff 
for  service.®^  Under  the  laws  of  Louisiana  the  parties  entitled  may  sue  at  any  time 
within  one  year  from  the  death.®^  In  Kansas,  the  time  is  not  extended  by  the 
pendency  and  dismissal  of  the  former  action  as  allowed  by  the  Code  in  other  cases.®^ 

All  persons  entitled  to  recover  must  be  joined  or  represented  in  the  action.'^"- 

Pleading. — In  an  action  by  the  administrator,  it  is  proper  to  allege  such  facts  as 
will  show  a  pecuniary  loss  to  the  next  of  kin/^  but  not  necessary  as  these  damages 
will  be  presumed.'^^  Where  the  names  of  those  entitled  to  share  are  stated  it  is  not 
necessary  to  expressly  negative  the  existence  of  other  relatives.''*  Under  the  Code 
of  California  it  is  the  duty  of  plaintiff  to  plead  and  prove  the  existence  of  heirs  of 
deceased,  as  the  administrator  can  sue  for  wrongful  death  only  where  there  are 
heirs.''*  Under  laws  giving  the  right  of  action  to  a  personal  representative  of  one 
whose  immediate  death  was  caused  by  negligence,  it  is  not  necessary  that  the 
declaration  should  contain  an  averment  of  immediate  death,  it  is  sufficient  if  it 
necessarily  appears  that  the  death  was  immediate.''^  Where  exemplary  damages  are 
recoverable,  the  complaint  need  not  specify  what  portion  or  whether  or  not  the  dam- 


59.  Florida  Cent.  &  P.  R.  Co.  v.  Foxworth 

(Fla.)   34  So.  270. 

60.  Hesse  v.  Meriden,  S.  &  C.  Tramway 
Co.,  75  Conn.  571. 

61.  Laws  of  Minn.  1897,  c.  248  referring- 
to  defective  sidewalks  etc. — Orth  v.  "Village 
of  Belgrade,  87  Minn.  237. 

62.  Const.  N.  Y.  art.  1,  §  18 — Gmaehle  v. 
Rosenberg,  83  App.  Div.  (N.  Y.)   339. 

63.  See  Negligence  and  related  titles 
treating  liability  for  negligence  such  as  Car- 
riers, Municipal  Corporations,  Railroads,  etc., 
for  treatment  of  contributory  negligence  as 
defense  to  actions  for  injuries  including 
those  resulting  in  death. 

64.  Gaynor  v.  Louisville  &  N.  R.  Co.,  136 
Ala.  244;  Alabama  G.  S.  R.  Co.  v.  Guest,  136 
Ala.  348. 

(55.  The  complaint  should  allege  citizen- 
ship of  administrator — Bishop  v.  Boston  & 
M.  R.  R.,   117   Fed.   771. 

60.  "White  v.  Rio  Grande  "Western  Ry.  Co., 
25  Utah,   346.  71  Pac.  593. 

C7.  County  v.  Pacific  Coast  Borax  Co.,  68 
N.  J.   Law,   273. 

GS.  Goodwin  v.  Bodcaw  Lumber  Co.,  109 
La.  1050. 

fiO.     Civil    Code,    Kan.    §     422 — Rodman    v. 


Missouri   Pac.   Ry.    Co.,    65   Kan.    645,   70   Pac. 
642,  59  L.  R.  A.  704. 

70.  The  failure  of  a  widow  suing  to  join 
the  husband's  mother  as  a  party  plaintiff,  is 
not  prejudicial  where  she  joins  as  defendant 
and  the  jury  awards  the  entire  recovery  to 
plaintiff  (Rev.  St.  Tex.  arts.  3021,  3022) — Mer- 
chants' &  P.  Oil  Co.  V.  Burns  (Tex.  Civ.  App.) 
72  S.  "W.   626. 

71.  Union  Pac.  R.  Co.  v.  Roeser  (Neb.) 
95  N.  W.  68. 

72.  Peers  v.  Nevada  Power,  Light  &  "Wa- 
ter Co.,  119  Fed.  400;  Peden  v.  American 
Bridge  Co.,   120   Fed.   523. 

73.  Peers  v.  Nevada  Power,  Light  &  "Wa>- 
ter  Co.,  119  Fed.  400. 

74.  Code  Civ.  Proc.  Cal.  §  377 — "Webster 
V.  Norwegian  Mln.  Co..  137  Cal.  399,  70  Pac. 
276. 

75.  There  is  a  sufficient  averment  of  Im- 
mediate death  within  the  requirements  of 
the  laws  of  Maine  where  it  is  alleged  that  de- 
ceased being  properly  in  the  third  story 
when  the  fire  broke  out,  by  reason  of  such 
negligence  without  fault  on  her  part,  was 
then  and  there  burnt  to  death  and  consumed 
by  said  fire,  and  then  and  thereby  lost  her 
life  (Pub.  Laws  of  Maine,  1891,  c.  124) — 
Carrigan  v.  Stillwell,  97  Me.   247. 


872 


DEATH  BY  WRONGFUL  ACT. 


ages  prayed  for  are  claimed  as  exemplary ;  the  allowance  of  such  damages  as  well  as 
damages  resulting  to  the  kindred  being  matter  for  the  determination  of  the  jury 
in  their  discretion  from  the  evidence.'^  A  petition  is  not  demurrable  because  it  al- 
leges a  contract  to  support  the  next  of  kin,  made  by  the  deceased  in  his  lifetime, 
wfthout  alleging  that  the  estate  of  the  deceased  is  insufficient  for  that  purpose." 
Cases  cited  show  what  amendments  are  allowable." 

The  cause  of  the  death  may  be  shown  by  defendant  under  the  general  issue.^' 
Under  the  Kansas  Code  in  an  action  by  a  widow  who  was  a  resident  of  the  state,  an 
allegation  that  no  personal  representative  had  been  appointed  is  put  in  issue  by  an 
imverified  denial.^" 

Evidence. — There  is  a  legal  presumption  that  one  found  dead  and  killed  by 
alleged  negligence  of  another  has  exercised  due  care."  In  Georgia  it  is  the  duty  of 
plaintiff  to  show  that  deceased  was  without  negligence.^^  Holdings  as  to  suf- 
ficiency of  evidence  will  be  found  in  the  footnote.®^ 

Instructions. — Instructions  should  state  the  rules  of  recovery  clearly,"  and 


76.  Peers  v.  Nevada  Power,  Light  &  Wa- 
ter Co.,  119  Fed.  400. 

77.  Union  Pac.  R.  Co.  v.  Roeser  (Neb.)  95 
N.  W.  68. 

78.  In  an  action  in  Kentucky  for  a  death 
occurring  in  Virginia,  an  amendment  setting 
out  the  Code  of  Virginia  allowing  such  re- 
covery is  properly  allowed — Louisville  &  N. 
R.  Co.  v.  Pointer's  Adm'r,  24  Ky.  L.  R.  772,  69 
S.  W.  1108.  "Where  the  petition  sets  forth 
in  general  terms  the  pecuniary  loss,  the 
court  may  permit  an  amendment  setting 
forth  the  particular  facts  from  which  the 
loss  is  inferable — Chicago,  R.  I.  &  P.  R-  Co. 
V.  Young  (Neb.)  93  N.  W.  922.  Where  the 
action  is  erroneously  commenced  by  the  wid- 
ow and  children,  who  are  the  only  parties 
in  interest,  instead  of  by  all  personal  repre- 
sentatives, it  is  the  duty  of  the  court  to 
allow  an  amendment  of  the  complaint  sub- 
stituting the  widow  in  her  capacity  as  ad- 
ministratrix (Rev.  St.  Utah  1898,  §  3005) 
— Pugmire  v.  Diamond  Coal  &  Coke  Co. 
(Utah)    72  Pac.   385. 

79.  Wetherell  v.  Chicago  City  R.  Co.,  104 
111.  App.  357. 

80.  Vaughn  v.  Kansas  City  N.  W.  R.  Co., 
65  Kan.   685,  70  Pac.   602. 

81.  Cogdell  V.  Wilmington  &  W.  R.  Co., 
132  N.  C.  852.  Plaintiff  is  not  bound  to  show 
by  direct  evidence  that  deceased  was  free 
from  negligence,  and  where  there  were  no 
eye  witnesses  of  the  killing,  the  fact  of  his 
exercise  of  due  precautions  for  his  safety 
may  be  shown  by  special  evidence,  or  facts 
and  circumstances  from  which  that  fact  may 
be  reasonably  inferred.  Including  the  natural 
instinct  of  self-preservation — Chicago,  R.  L 
&  P.  Ry.   Co.  V.   Keely,   103  111.  App.   205. 

82.  Jones  v.  Central  of  Ga.  Ry.  Co.,  116 
Ga.  27. 

S3.  SufHciency  of  evidence  of  cause  of 
death  of  one  thrown  from  a  train  by  the 
sudden  jerking  of  the  same — Southern  Ry. 
Co.  V.  Webb.  116  Ga.  152,  59  L.  R.  A.  109. 
Evidence  is  insufficient  to  warrant  recovery 
of  full  statutory  amount  where  the  only  fact 
established  is  the  death  of  the  party  at  a 
certain  age — Hesse  v.  Meriden,  S.  &  C.  Tram- 
way Co..  75  Conn.  571.  Evidence  that  a 
body  was  found  in  the  neighborhood  of  a 
bridge  and  an  overcoat  close  by,  is  not  suf- 
ficient evidence  to  justify  submission  to  the 
jury  of  the  issue  whether  deceased  came  to 


his  death  by  falling  from  the  defective 
bridge — Armstrong  v.  Town  of  Cosmopolis 
(Wash.)  72  Pac.  1038. 

84.  An  instruction  allowing  the  recovery 
of  an  amount  proportionate  to  the  pecuniary 
injury  occasioned  should  explain  the  mean- 
ing of  the  term  "porportionate  to  the  pe- 
cuniary injury" — Merchants'  &  P.  Oil  Co.  v. 
Burns  (Tex.)  74  S.  W.  758.  An  instruction 
that  the  jury  should  estimate  the  reasonable 
probabilities  of  the  life  of  deceased  if  they 
find  for  plaintiffs,  and  give  such  damages  not 
only  for  past  losses  but  for  such  prospective 
damages  as  plaintiffs  might  have  suffered  or 
would  suffer  as  the  direct  consequence  of  the 
death,  and  that  the  jury  should  apportion 
the  damages  among  the  plaintiffs,  was  not 
improper  when  taken  in  connection  with  a 
further  instruction  that  no  recovery  could 
be  had  in  favor  of  one  of  plaintiffs  as  to 
whom  no  pecuniary  loss  had  been  shown — 
Western  Md.  R.  Co.  v.  State,  95  Md.  637. 
The  action  of  a  court  in  refusing  to  in- 
struct that  the  law  presumes  the  exercise  of 
due  care  by  one  found  dead  and  killed  by 
the  alleged  negligence  of  another,  and  giv- 
ing on  his  own  motion  an  instruction  that  an 
inference  arises  from  the  instinct  of  self- 
preservation  that  the  person  killed  has  ex- 
ercised due  care  himself,  is  erroneous,  as 
presumption  and  inference  do  not  have  the 
same  significance — Cogdell  v.  Wilmington  & 
"V\^  R.  Co.,  132  N.  C.  852.  An  instruction  that 
the  jury  might  consider  in  assessing  the 
damages,  the  pecuniary  benefits  which  the 
plaintiff  may  have  derived  from  deceased 
had  he  not  been  killed  at  that  stage  of  his 
life,  providing  plaintiff  is  next  of  kin  and 
dependent  on  deceased  for  support,  though 
awkwardly  drafted  is  not  erroneous — 
O'Fallon  Coal  &  Min.  Co.  v.  Laquet,  198  111. 
125.  Where  the  only  evidence  in  an  action 
for  wrongful  death  was  relevant  to  the  is- 
sue of  pecuniary  injury,  and  there  was  no 
intimation  that  damages  might  be  given  as 
a  solace  for  loss  of  deceased  or  as  punitive 
damages,  an  instruction  that  the  jury  should 
consider  the  age  of  deceased  and  his  earn- 
ings and  all  other  evidence  in  the  case, 
was  not  objectionable  as  allowing  an  in- 
clusion of  other  than  pecuniary  damages — 
Chicago  &  E.  I.  R.  Co.  v.  Rains,  203  111. 
417.  Instruction  need  not  direct  a  deduc- 
tion   of    the    amount    of    the    child's    "keep" 


§6 


DECEIT. 


873 


must  be  based  on  the  evidence.*^  Generally  speaking  it  is  immaterial  in  an  action 
for  wrongful  death  whether  an  instruction  which  goes  simply  to  the  amount  of 
damages  to  be  recovered  is  good  or  bad  if  the  jury  on  proper  instructions  as  to  the 
question  of  negligence,  the  main  issue,  find  against  plaintiff.^®  An  instruction  that 
the  jury  might  assess  the  damages  as  they  deemed  fair  and  just,  not  exceeding  the 
statutory  amount,  is  not  erroneous  where  defendant  asked  for  no  instructions  or 
modifications.®^ 

Question  for  jury.— The  questions  as  to  the  actual  cause  of  the  death,®*  and  of 
decedent's  contributory  negligence,  are  for  the  jury  f^  likewise  the  question  whether 
a  deserting  wife  was  damaged  by  the  husband's  death."" 

Verdicts,  judgments,  and  costs. — The  failure  of  the  jury  to  apportion  two  or 
more  plaintiffs  is  not  reversible  error  where  plaintiffs  make  no  objection,  as  the  gen- 
eral verdict  is  sufficient  to  bar  a  subsequent  action  by  any  of  the  plaintiffs. ^^  A 
joint  judgment  is  improperly  awarded  plaintiff's  where  one  of  the  parties  is  not  en- 
titled to  sue  therefor.®^  Security  for  costs  should  be  required  where  the  complaint 
fails  to  state  a  cause  of  action.*^ 

§  6.  Distributive  rights  in  amount  recovered. — The  mere  failure  of  the  ad- 
ministrator to  name  all  the  legal  beneficiaries  provided  in  the  act  allowing  recovery 
for  wrongful  death  will  not  prevent  persons  entitled  to  share  in  the  distribution 
from  receiving  their  distributive  share."*  A  child  is  not  deprived  of  a  right  to  share 
in  the  damages  recovered  for  the  death  of  his  parent  by  the  fact  that  he  had  for 
some  years  lived  away  from  his  father's  home  and  the  father  did  not  contribute  any- 
thing to  his  support."^  Where  the  widow  of  deceased  has  recovered  for  his  death, 
children  of  full  age  who  have  lived  apart  from  the  family  are  not  entitled  to  share 
in  the  judgment."® 

DECEIT.  * 

Walter    A.    Shumakeb. 


§  1.     Definition   and  Tfatnre  of  the  W^rong. 

— A.  In  General.  B.  Deceit  as  between  Par- 
ties to  Contract.  C.  Deceit  Not  Connected 
with  Contract. 

§  2.  Character  of  the  Representation. — A. 
In  General.  B.  Opinion  or  Prediction.  C. 
Promises  and  Statements  of  Intention.  D. 
Reasons.  B.  Misrepresentation  of  Law.  F. 
Immaterial  Statements.  G.  Vague  State- 
ments.    H.  Ambiguous  Statements. 

§  3.  Oral  Representations  and  Statute  of 
Frauds. 

§  4.     Misrepresentation  by  Conduct. 

§  5.  Nondisclosure  and  Concealment.  — 
When  General  Rule  Does  Not  Apply. 

§  6.     Representation  Must  be  False. 


§  7.  Knowledge  of  Falsity,  and  Intent  to 
Deceive. — A.  Knowledge  In  General.  B.  Neg- 
ligence and  Unreasonable  Belief.  C.  Reckless 
Ignorance.  D.  Intention  to  Deceive.  E3. 
Failure  to  Disclose. 

§  8.  Representation  Must  be  Made  to 
Plaintiff. — A.  In  General.  B.  Those  Made  to 
a  Class  or  to  Public. 

§  9.  Necessity  for  Reliance  on  Represen- 
tations. 

§  10.  Representations  on  which  One  Has 
a  Right  to  Rely. 

§  11.     Nesligent  Reliance. 

§  12.     Necessity  for  Damage. 

§  13.     Actions  and  Procedure. 


This  article  covers  fraudulent  misrepresentation  as  ground  for  an  action  for 


in  estimating  the  value  of  his  services,  as  the 
jury  would  be  presumed  to  understand  that 
recovery  should  be  based  on  a  deduction  of 
such  an  amount — Texas  &  P.  Ry.  Co.  v.  Tar- 
brough  (Tex.  Civ.  App.)   73  S.  W.  844. 

85.  North  Chicago  St.  R.  Co.  v.  Irwin, 
202  111.  345.  A  court  properly  refused  to 
submit  the  issue  of  self  defense  in  an  ac- 
tion for  damages  for  willful  homicide  where 
defendant's  own  testimony  showed  that  he 
brought  on  the  difficulty,  used  the  first  of- 
fensive language  and  struck  the  first  blow, 
and  pursued  and  shot  the  deceased  while  the 
latter  was  attempting  to  escape — Morgan  v. 
Barnhill    (C.  C.  A.)   118   Fed.   24. 


86.  Zimmerman   v.   Denver   Consol.   Tram- 
way Co.    (Colo.  App.)    72   Pac.   607. 

87.  Geismann  v.  Missouri  Edison  Elec.  Co. 
(Mo.)    73  S.  W.  654. 

88.  City    of    Madisonville    v.    Pemberton's 
Adm'r,  25  Ky.  L.  R.  347,  75  S.  W.  229. 

89.  Wells    V.    Town    of    Remington    (Wis.) 
95  N.   W.   1094. 

90.  Houston    &    T.    C.    R.    Co.    v.    Bryant 
(Tex.   Civ.   App.)    72   S.   W.    885. 

91.  International    &   G.    N.    R.   Co.   v.   Leh- 
man  (Tex.  Civ.  App.)    72  S.   W.  619. 

92.  Willis    Coal    &    Min.    Co.    v.    Grizzell, 
198  in.  313. 


♦Includes  all  late  cases. 


874 


DECEIT. 


IK- 


damages,  whether  the  action  be  in  common  law  form  foi  deceit  or  an  equivalent 
action  imder  the  Codes.  Fraud  as  a  ground  for  relief  other  than  damages  is  else- 
where treated.®^ 

§  1.  Definition  and  nature  of  the  wrong.  A.  In  general. — The  wrong  called 
"deceit"  consists  "in  leading  a  man  into  damage  by  willfully  or  recklessly  causing 
him  to  believe  and  act  on  a  falsehood"  f^  or  to  be  more  specific,  it  may  be  defined 
as  a  false  representation  of  a  material  fact,  made  with  knowledge  that  it  is  false  or 
recklessly,  and  with  intent  to  deceive,  and  which  is  acted  upon  to  his  damage  by  the 
person  to  whom  it  is  made,  or  a  concealment  or  suppression  of  a  material  fact^ 
which  there  is  a  duty  to  disclose,  with  lilce  intent  and  effect.''^  It  is  a  tort  for  which, 
at  common  law,  the  person  damaged  may  maintain  an  action  on  the  case,  known  as 
an  action  of  deceit,  or  an  action  for  deceit. 

Analyzing  the  above  definition,  it  will  be  seen  that,  to  sustain  such  an  action, 
the  following  conditions  are  essential : 

(1)  There  must  be  a  representation  of  a  material  fact,  or  a  concealment  of  a 
fact  which  there  is  a  duty  to  disclose. 

(2)  The  representation  must  be  false. 

(3)  It  must  be  made  with  knowledge  that  it  is  false,  or  recklessly.* 

(4)  There  must  be  an  intention  to  deceive. 

(5)  The  person  to  whom  the  representation  is  made  must  rely  and  act  upon  it, 

(6)  And  he  must  sustain  damage  by  reason  of  doing  so. 

(§1)  B.  Deceit  as  between  the  parties  to  a  contract. — Most  of  the  cases  in 
which  an  action  of  deceit  is  brought  are  cases  in  which  false  and  fraudulent  represen- 
tations are  made  by  one  of  the  parties  to  a  proposed  contract  and  acted  upon  by  the 
other  party  in  entering  into  the  contract,  the  term  "contract"  being  here  used  in  the 
broad  sense,  as  including  executed,  as  well  as  executory  contracts.  In  such  a  case, 
the  party  who  has  been  deceived  and  induced  to  enter  into  the  contract  by  the  oth- 
er's false  and  fraudulent  representations  may  rescind  the  contract  at  law  for  want 
of  real  consent,  and  recover  back  what  he  has  parted  with  under  it,  or  under  some 
circumstances  he  may  obtain  relief  in  a  court  of  equity.  But  rescission  or  avoid- 
ance of  the  contract  is  not  his  only  remedy.  He  may,  instead  of  rescinding,  afib'm 
the  contract  or  allow  it  to  stand,  and  maintain  an  action  of  deceit  to  recover  any 
damages  he  has  sustained  by  reason  of  the  fraud;  and  his  affirmance  of  the  con- 
tract, and  keeping  what  he  has  received  under  it,  or  receiving  what  he  is  entitled  to 
under  it,  after  discovery  of  the  fraud,  is  not  of  itself  a  waiver  of  the  right  to  main- 
tain the  action.* 


93.  Gmaehle  v.  Rosenberg-,  80  App.  Dlv. 
(N.  Y.)  541. 

94.  Oyster  v.  Burlington  Relief  Depart- 
ment (Neb.)  91  N.  W.  699,  59  L.  R.  A.  291; 
Duzan  v.  Myers,  30  Ind.  App.  227. 

95.  Duzan  v.  Myers.   30   Ind.   App.   227. 

96.  Lewis  V.  Hunlock's  Creek  &  M.  Turn- 
pike Co.,  203  Pa.  511. 

97.  See  the  forthcoming  article  on 
Fraud  and  Undue  Influence,  and  articles  on 
such  subjects  as  Cancellation  of  Instruments, 
Reformation  of  Instruments,  Contracts  (re- 
scission)    6tc» 

98.  Pollock,  Torts  (Webb's  Ed.)  348. 
And  see  Fottler  v.   Moseley,   179  Mass.   295. 

99.  Pasley  v.  Freeman,  3  Term  R.  51,  2 
Smith's  Lead.  Cas.  94,  Bigelow's  Cas.  1 ; 
Byard  v.  Holmes,  34  N.  J.  Law,  296;  Ming 
V.  Woolfolk,  116  U.  S.  599;  Southern  Develop- 
ment Co.  V.  Silva,  125  U.  S.  247;  Matlock  v. 
Reppy,   47   Ark.   148;  Upton  v.  Vail,   6  Johns. 


(N.  T.)  181,  5  Am.  Dec.  210;  Arthur  v.  Gris- 
wold,  55  N.  Y.  400;  Brackett  v.  Griswold,  112 
N.  Y.  454,  467,  Erwin's  Cas.  416;  Medbury 
V.  Watson,  6  Mete.  (Mass.)  246,  39  Am.  Dec. 
726,  Bigelow's  Cas.  22;  McGar  v.  Williams, 
26  Ala.  469,  62  Am.  Dec.  739;  Alexander  v. 
Church,  53  Conn.  561;  Bartholomew  v.  Bent- 
ley,  15  Ohio,  659,  45  Am.  Dec.  596;  Endsley 
V.  Johns,  120  111.  469,  60  Am.  Rep.  572;  Cox 
V.  Highley,  100  Pa.  249;  Hexter  v.  Bast,  125 
Pa,  il.  11  Am.  St.  Rep.  S74;  Buschman  v. 
Cf^n.  52  Md.  202;  Fenley  v.  Moody,  104  Ga. 
790;  Bank  of  Atchison  County  v.  Byers,  139 
Mo.    627. 

1.  As  to  this,  however,  thet-e  is  some 
conflict.     See  post,  §  7. 

2.  Mallory  v.  Leach,  35  Vt.  156,  82  Am. 
Dec.  625;  Allaire  v.  "U'hitney,  1  Hill  (N.  Y.) 
484,  Bigelow's  Cas.  36:  Whitney  v.  Allaire, 
4  Denio  (N.  Y.)  554,  1  N.  Y.  305;  Rohrschnel- 
der    V.     Knickerbocker    L.     Ins.     Co.,     76     N. 


§  ic 


NATURE  OF  WRONG. 


875 


Thus  a  person  who  is  induced  to  buy  goods,  notes,  bonds,  stock,  or  other  per- 
sonal property,  by  the  false  and  fraudulent  representations  of  the  seller  as  to  ma- 
terial facts,  may,  instead  of  rescinding  the  purchase,  keep  the  property  and  bring 
an  action  of  deceit  to  recover  such  damages  as  he  has  sustained.^  And  one  who  has 
been  induced  to  sell  property  by  the  false  and  fraudulent  representations  of  the  pur- 
chaser may  allow  the  sale  to  stand  and  sue  to  recover  damages  for  the  deceit ;  and  he 
does  not  waive  this  right  by  merely  accepting  the  amount  due  under  the  contract  after 
discovery  of  the  fraud.* 

It  was  at  one  time  doubted  whether  an  action  of  deceit  would  lie  for  false  and 
fraudulent  representations  on  the  sale  of  land,  but  it  is  now  well  settled  that  the 
action  will  lie,"*  if  the  representation  is  one  of  fact,®  and  if  it  is  of  such  a  character 
and  made  under  such  circumstances  that  the  purchaser  has  a  right  to  rely  on  it.'^ 

Effect  of  warranty  or  covenant. — An  action  of  deceit  to  recover  damages  for 
false  and  fraudulent  representations  by  the  seller  of  personal  property  is  not  barred 
by  the  fact  that  there  is  an  express  or  implied  warranty  upon  which  the  purchaser 
might  maintain  an  action  of  assumpsit.'  He  has  an  election  to  sue  either  on  the 
warranty  or  for  the  deceit:  "The  warranty  is  none  the  less  a  contract  because  it 
is  the  means  by  which  the  fraud  is  accomplished,  and  the  fraud  is  in  no  way  dimin- 
ished because  the  seller  has  at  the  same  time  bound  himself  by  a  warranty.'^* 

Nor  is  an  action  of  deceit  for  false  and  fraudulent  representations  by  the  vendor 
of  land  barred  by  the  fact  that  there  are  express  covenants  in  his  deed, — as  cov- 
enants of  seizin  or  against  incumbrances,  etc., — upon  which  the  purchaser  might 
maintain  an  action  of  covenant.^" 

(§1)  C.  Deceit  not  connected  with  contract. — It  must  not  be  supposed  from 
what  has  been  said  above  that  the  action  of  deceit  is  limited  to  cases  of  fraud  as  be- 
tween the  parties  to  a  contract,  for  it  will  lie  in  many  other  cases.  It  may  be  laid 
down  as  a  general  rule  that  this  action  will  lie  whenever  the  plaintiff  has  been  led  to 
act  to  his  damage  by  false  representations  of  fact  made  by  the  defendant,  with  knowl- 
edge of  their  falsity  or  recklessly,  and  with  intent  to  deceive;  and  it  is  altogether 
immaterial  that  the  defendant  was  not  in  any  way  benefited  by  the  deceit  and  did 


T.  216,  32  Am.  Rep.  290;  Whiting  v.  Price, 
172  Mass.  240.  70  Am.  St.  Rep.  262;  Bing- 
hampton  Trust  Co.  v.  Auten,  68  Ark.  299, 
82  Am.  St.  Rep.  295;  Milnazek  v.  Libera,  83 
Minn.  288,  and  other  cases  in  the  notes  fol- 
lowing. 

3.  Hoiildsworth  v.  City  of  Glasgow  Bank, 
5  App.  Cas.  323;  Stiles  v.  White,  11  Mete. 
(Mass.)  356,  45  Am.  Dec.  214;  Andrews  v. 
Jackson,  168  Mass.  266,  60  Am.  St.  Rep.  390; 
Whiting  V.  Price,  172  Mass.  240,  70  Am.  St. 
Rep.  262;  Handy  v.  Waldron,  18  R.  I.  567, 
49  Am.  St.  Rep.  794;  Trice  v.  Cockran,  8 
Grat.  (Va.)  442.  56  Am.  Dec.  151;  Binghamp- 
ton  Trust  Co.  v.  Auten,  68  Ark.  299,  82  Am. 
St.  Rep.  295;  Goring  v.  Fitzgerald,  105  Iowa, 
507;  Pronger  v.  Old  Nat.  Bank,  20  Wash. 
618,  56  Pac.  391;  Chilson  v.  Houston,  9  N. 
D.    498. 

4.  Mallory  v.  Leach,  35  Vt.  156,  82  Am. 
Dec.   625. 

5.  Risney  v.  Selby.  1  Salk.  211;  Dobell 
V  Stevens,  3  Barn.  &  C.  623;  Journey  v. 
Hunt,  1  N.  J.  Law,  235,  1  Am.  Dec.  202; 
Bostwick  V.  Lewis,  1  Day  (Conn.)  250,  2  Am. 
Dec  73;  Monell  v.  Golden,  13  Johns.  (N.  Y.) 
395,  7  Am.  Dec.  390;  Culver  v.  Avery,  7 
Wend.  (N.  Y.)  380,  22  Am.  Dec.  586;  Van 
Epps  v.  Harrison.  5  Hill  (N.  Y.)  63,  40  Am. 
Dec.  314;  Foster  v.  Kennedy's  Adm'r.  38  Ala. 
359,    81    Am.    Dec.    56;    Atwood    v.    Chapman, 


68  Me.  38,  28  Am.  Rep.  6;  Andrus  v.  St. 
Louis  Smelting  &  Ref.  Co.,  130  U.  S.   643. 

For  cases  in  which  actions  have  been 
sustained  for  particular  representations, 
see  post,  §  2  B,  notes  35-42,  §  10,  notes  78- 
87. 

e.     Post,  2  B. 

7.  Post,    §    10. 

8.  Wallace  v.  Jarman,  2  Stark.  162;  Ma- 
hurin  v.  Harding,  28  N.  H.  128,  59  Am.  Dec. 
401;  Trice  v.  Cockran,  8  Grat.  (Va.)  442,  56 
Am.  Dec.  151;  Handy  v.  Waldron,  18  R.  L 
567,  49  Am.  St.  Rep.  794;  Hexter  v.  Bast,  125 
Pa.  52,  11  Am.  St.  Rep.  874;  Cobb  v.  O'Neal, 
2   Sneed    (Tenn.)    438. 

Giving  a  warranty  known  to  be  false  is 
a  fraudulent  representation — Handy  v.  Wald- 
ron, 18  R.  L  567,  49  Am.  St.  Rep.  794;  Hex- 
ter v.  Bast,   125  Pa.   52,   11   Am.  St.   Rep.   874. 

9.  Mahurin  v,  Harding,  28  N.  H.  128,  59 
Am.  Dec.  401. 

10.  Warden  v.  Fosdick,  13  Johns.  (N.  Y.) 
325,  7  Am.  Dec.  383;  Ward  v.  Wlman,  17 
Wend.  (N.  Y.)  193;  Bostwick  v.  Lewis,  1  Day 
(Conn.)  250,  2  Am.  Dec.  73;  Reynolds  v. 
Franklin,  44  Minn.  30.  20  Am.  St.  Rep.  540; 
Claggett  v.  Crall.  12  Kan.  393. 

If  a  person  sells  land  which  has  no  exist- 
ence the  purchaser  may  disregard  the  cove- 
nants in  the  deed  and  maintain  an  action  of 
deceit — Wardell    v.    Fosdick.   supra. 


876 


DECEIT. 


IC 


not  act  in  collusion  with  the  party  who  was."  The  fraud  of  the  defendant  and  the 
damage  of  the  plaintiff  are  the  ground  of  the  action.  "Fraud  without  damage,  or 
damage  without  fraud,  gives  no  cause  of  action,  but  where  these  two  do  concur 
*     *     *     an  action  lies."^^ 

Thus  it  is  well  settled  that  a  person  who  is  induced  to  extend  credit  to  another, 
to  his  damage,  by  the  false  and  fraudulent  representations  of  a  third  person  as  to 
the  party's  credit  or  financial  condition,  may  maintain  an  action  of  deceit  against 
such  third  person." 

And  an  action  will  lie  for  false  and  fraudulent  representations  by  the  defend- 
ant, however  uninterested  he  may  have  been,  by  which  the  plaintiff  has  been  in- 
duced to  purchase  real  or  personal  property  from  a  third  person,"  or  to  pay  money 
to  a  third  person,"  or  to  enter  into  a  marriage  with  a  third  person." 

An  af^ent,  although  not  personally  interested,  is  liable  in  an  action  of  deceit 
to  one  whom,  by  false  and  fraudulent  representations,  he  induces  to  enter  into  a  con- 
tract with  his  principal." 

And  an  agent  is  liable  to  his  principal  in  an  action  for  deceit  if  by  false  and 
fraudulent  representations  he  induces  the  principal,  by  making  a  bad  loan,  or  oth- 
erwise, to  act  to  his  damage.^*     Directors  and  other  officers  of  a  corporation  are 


11.  Pasley  v.  Freeman,  3  Term  R.  51, 
2  Smith's  Lead.  Cas.  94.  Bigelow's  Cas.  1; 
Hart  V.  Tallmadge,  2  Day  (Conn.)  381,  2 
Am.  Dec.  105;  INIedbury  v.  Watson,  6  Mete. 
(Mass.)  246,  39  Am.  Dec.  726,  Big^elow's  Cas. 
22;  Bean  v.  Herrick,  12  Me.  262,  28  Am. 
Dec.  176;  Upton  v.  Vail,  6  Jolins.  (N.  Y.) 
181,  5  Am.  Dec.  210;  Culver  v.  Avery,  7  "Wend. 
(N.  Y.)  380,  22  Am.  Dec.  586;  White  v.  Mer- 
rltt.  7  N.  Y.  352,  57  Am.  Dec.  527;  Sigafus 
V.  Porter  (C.  C.  A.)  84  Fed.  430;  Stoney 
Creek  Woolen  Co.  v.  Smalley,  111  Mich.  321; 
Kroeger  v.  Pitcairn,  101  Pa.  311.  47  Am. 
Rep.  718;  Endsley  v.  Johns,  120  111.  469,  60 
Am.  Rep.  572;  James  v.  Crosthwait,  97  Ga. 
(178. 

vendor  of  land  who  gives  the  pur- 
chaser a  false  receipt  for  the  purchase  price 
to  enable  him  to  deceive  a  subsequent  pur- 
chaser is  liable  to  the  latter — Stoney  Creek 
Woolen   Co.    v.    Smalley,    111    Mich.    321. 

i2.  Croke,  J.,  in  Baily  v.  Merrell,  3  Bulst. 
95.    And  see  Pasley  v.  Freeman,  3  Term  R.  51. 

13.  Pasley  v.  Freeman.  3  T.  R.  51.  2 
Smith's  Lead.  Cas.  94.  Bigelow's  Cas.  1;  Fos- 
ter v.  Charles,  6  Bing.  396,  7  Bing.  105; 
Corbett  v.  Brown,  8  Bing.  33;  Patten  v. 
Gurney,  17  Mass.  182,  9  Am.  Dec.  141;  Potts 
V.  Chapin.  133  Mass.  276;  Upton  v.  Vail,  6 
Johns.  (N.  Y.)  187,  5  Am.  Dec.  210;  Adding- 
ton  V.  Allen.  11  Wend.  (N.  Y.)  374;  Za- 
briskie  v.  Smith,  13  N.  Y.  322.  64  Am.  Dec. 
551;  Browning  v.  National  Cap.  Bank,  13 
App.  D.  C.  1;  Einstein  v.  Marshall,  58  Ala. 
153.  29  Am.  Rep.  "29;  Boyd's  Ex'rs  v.  Browne, 
6  Pa.  310,  Burdick's  Cas.  242;  Wynne  v. 
Allen,  7  Baxt.  (Tenn.)  312,  32  Am.  Rep.  562; 
Nevada  Bank  v.  Portland  Nat.  Bank.  59 
Fed.  338;  Fooks  v.  Waples,  1  Harr.  (Del.) 
131.  25  Am.  Dec.  64;  Endsley  v.  Johns.  120 
111.  469,  60  Am.  Rep.  572;  Thomas  v.  Wright. 
98  N.  C.  272;  Anderson  v.  McPike,  86  Mo. 
293.  Compare  Newsom  v.  Jackson,  26  Ga. 
241,    71    Am.    Dec.    206. 

False  represpntation  that  another's  check 
is  good — Endsley  v.  Johns,  120  111.  469.  60 
Am.    Rep.    572. 

14.  Medbury  v.  Watson,  6  Mete.  (Mass.) 
246.  39  Am.  Dec.  726,  Bigelow's  Cas.  22;  Bean 


v.  Herrick,  12  Me.  262,  28  Am.  Dec.  176; 
Irwin  V.  Sherril,  Tayl.  (N.  C.)  1,  1  Am. 
Dec.  574;  Culver  v.  Avery,  7  Wend.  (N.  Y.) 
380,  22  Am.  Dec.  586;  Kountze  v.  Kennedy, 
147  N.  Y.  124,  49  Am.  St.  Rep.  651;  Bost- 
wick  V.  Lewis,  1  Day  (Conn.)  250,  2  Am. 
Dec.  73  (a  case,  however,  of  conspiracy). 

Inducing  a  person  to  Invest  in  stock  of 
a  corporation  or  proposed  corporation — 
Teachout  v.  Van  Hoesen,  76  Iowa,  113,  14 
Am.  St.  Rep.  206;  Kountze  v.  Kennedy,  147 
X.    Y.    124,    49    Am.    St.    Rep.    651. 

15.  Inducing  a  bank  to  pay  money  on  a 
draft  or  other  instrument  to  another  person 
than  the  payee  by  falsely  representing  him 
to  be  the  payee — Lahay  v.  City  Nat.  Bank, 
15   Colo.    339.    22    Am.    St.    Rep.    407. 

16.  One  who  falsely  and  fraudulently  rep- 
resents to  another  that  a  woman  is  virtu- 
ous, when  she  is  pregnant  by  himself,  and 
thereby  induces  the  other  to  marry  her,  is 
liable  in  an  action  for  deceit — Kujek  v.  Gold- 
man,  150  N.   Y.   176,    55  Am.   St.   Rep.   670. 

17.  Campbell  v.  Hillman,  15  B.  Mon.  (Ky.) 
508,  61  Am.  Dec.  195;  Culver  v.  Avery.  7 
Wend.  (N.  Y.)  380.  22  Am.  Dec.  586;  Kroeger 
V.  Pitcairn,  101  Pa.  311,  47  Am.  Rep.  718: 
Hedden  v.  Griffin,  136  Mass.  .229,  49  Am. 
Rep.  25;  Endsley  v.  Johns,  120  111.  469,  60 
Am.  Rep.  572;  Hedin  v.  Minneapolis  Med. 
&  Surg.  Inst.,  62  Minn.  146,  54  Am.  St.  Rep. 
628;  Chisolm  v.  Gadsden,  1  Strobh.  L.  (S.  C.) 
220,   47  Am.   Dec.   550. 

Insurance  agent  making  to  the  insured  a 
false  representation  that  a  clause  in  the 
policy  against  the  keeping  of  petroleum  is 
not  intended  to  and  does  not  prohibit  the 
keeping  of  a  small  quantity,  the  policy  be- 
ing subsequently  avoided  by  reason  of  the 
keeping  of  a  small  quantity — Kroeger  v.  Pit- 
cairn. 101  Pa.  311,  47  Am.  St.  Rep.  718. 
See,  also,  as  to  insurance  agent's  liability — 
Hedden  v.  Griffin,  136  Mass.  229,  49  Am.  Rep. 
25. 

Agent  falsely  representing  that  the  check 
of  his  principal  is  good — Endsley  v.  Johns, 
120   111.    469,    60   Am.    Rep.    572. 

18.  Pewtriss  v.  Austen.  6  Taunt.  522; 
Goodale  v.  Middaug^,,  8  Colo.  App.  223,  46 
Pac.    11. 


§  2B 


CHARACTER  OF  REPRESENTATION. 


877 


personally  liable  in  an  action  of  deceit  for  false  and  fraudulent  representations  as 
to  its  condition  or  other  material  facts,  whereby  persons  are  induced  to  contract  with 
the  corporation,  or  subscribe  for  or  purchase  its  stock  or  bonds,  or  otherwise  act  to 
their  damage.^^ 

So,  also,  an  action  will  lie  against  a  public  officer  who  makes  false  and  fraudu- 
lent representations  in  selling  property;^"  or  against  an  executor  or  administrator 
who,  by  false  and  fraudulent  representations  as  to  the  estate,  induces  one  to  loan  or 
pay  out  money  on  its  credit,^^  or  who  in  selling  his  decedent's  land  falsely  and  fraud- 
ulently represents  that  there  is  no  incumbrance.^^ 

One  who  by  false  and  fraudulent  representations  intentionally  induces  another 
to  so  act  that  he  is  prevented  from  fulfilling  a  contract  with  a  third  person,  and 
thereby  damaged,  is  liable  in  an  action  of  deceit.^^  And  such  an  action  will  lie 
where  a  man  is  induced  to  come  into  a  state  by  false  and  fraudulent  representations, 
with  intent  to  arrest  him  and  thus  compel  him  to  settle  a  disputed  claim.  ^* 

§  3.  The  character  of  the  representation.  A.  In  general. — Laying  aside,  for 
the  present,  cases  of  concealment  or  nondisclosure  of  facts  which  there  is  a  duty  to 
disclose,^^  the  general  rule  is  that,  to  sustain  an  action  of  deceit,  there  must  be  a 
false  representation  as  to  some  material  and  existing  fact.^®  And  as  we  shall  see  in 
a  subsequent  section,  the  representation  must  be  made  as  to  such  a  fact  and  under 
such  circumstances  that  the  person  to  whom  it  is  made  has  a  right  to  rely  upon  it, 
instead  of  ascertaining  the  truth  for  himself .^^ 

(§2)  B.  Opinion  or  prediction. — As  a  general  rule,  a  mere  expression  of  opin- 
ion or  prediction,  not  being  a  representation  of  fact,  cannot  be  made  the  ground  for 
an  action  of  deceit,  even  though  it  may  not  have  been  honestly  entertained,  but  may 
have  been  given  with  intent  to  deceive,  and  may  have  had  such  effect.^^  The  rea- 
son is  that  one  is  not  supposed  to  rely  upon  the  mere  opinion  of  another,  and  if  he 
does  so,  and  is  deceived,  he  cannot  complain.^^ 

This  rule  does  not  apply,  of  course,  where  an  expression  of  opinion  or  pre- 
diction is  accompanied  by  a  false  statement  of  fact,  for  there  is  then  a  false  repre- 
sentation of  fact  in  addition  to  the  opinion  or  prediction.^" 


19.  Peek  v.  Gurney,  L,.  R.  6  H.  L.  377; 
Andrews  V.  Mockford  [1896]  1  Q.  B.  372; 
Clarke  v.  Dickson,  6  C.  B.  (N.  S.)  453;  Salm- 
on V.  Richardson,  30  Conn.  360,  79  Am.  Dec. 
255;  Tyler  v.  Savage,  143  U.  S.  79;  Bruff  v. 
Mali,  36  N.  Y.  200;  Morgan  v.  Skiddy,  62 
N.  Y.  325;  Westervelt  v.  Demarest,  46  N.  J. 
Law,  37,  50  Am.  Rep.  400,  Burdick's  Cas. 
236;  Seale  v.  Baker,  70  Tex.  2S3,  8  Am.  St. 
Rep.  592;  Windram  v.  French,  151  Mass.  547; 
Clark  V.  Edgar,  84  Mo.  106.  54  Am.  Rep.  84; 
Shaw  V.  Gilbert,  111  Wis.  165.  And  see  post, 
§  8  B.  See,  also,  3  Clark  &  Marshall,  Corp. 
2263. 

30.  Culver  V.  Avery,  7  Wend.  (N.  Y.)  380, 
22   Am.   Dec.    586. 

21.  Winston  v.   Young,   47  Minn.   80. 

22.  West  V.  Wright,   98   Ind.   335. 

23.  Benton  v.  Pratt,  2  Wend.  (N.  Y.)  385, 
20  Am.  Dec.  623. 

24.  Cook  V.  Brown,  125  Mass.  503,  28  Am. 
Rep.  259;  Sweet  v.  Kimball,  166  Mass.  332. 
55  Am.  St.  Rep.  406;  Wanzer  v.  Bright,  52 
111.    35. 

25.  Post,   §   5. 

2G.  People  v.  Healy,  128  111.  9,  15  Am.  St. 
Rep.  90,  and  other  cases  in  the  notes  fol- 
lowing. 

27.  See  post,  §   10. 

28.  Harvey  v.  Young,  Yelv.  21;  Haycroft 
v.   Creasy,   2  East,   92;   Gordon   v.   Butler,   105 


U.  S.  553;  Thompson  v.  Phoenix  Ins.  Co.,  75 
Me.  55,  46  Am.  Rep.  357;  Holbrook  v.  Con- 
nor, 60  Me.  578,  11  Am.  Rep.  212;  Parker  v. 
Moulton.  114  Mass.  99,  19  Am.  Rep.  315; 
Homer  v.  Perkins,  124  Mass.  431,  26  Am. 
Rep.  677;  Mooney  v.  Miller,  102  Mass.  217; 
Lynch  v.  Murphy,  171  Mass.  307;  Page  v. 
Parker,  43  N.  H.  363,  80  Am.  Dec.  172;  Syra- 
cuse Knitting  Co.  v.  Blanchard,  69  N.  H. 
447;  Davis  y.  Meeker,  5  Johns.  (N.  Y.)  354; 
Ellis  V.  Andrews,  56  N.  Y.  83,  15  Am.  Rep. 
379;  Robertson  v.  Parks,  76  Md.  118;  Col- 
lins V.  Jackson,  54  Mich.  186;  Crocker  v. 
Manley,  164  111.  282,  56  Am.  St.  Rep.  196; 
Brady  v.  Cole.  164  111.  116;  Williams  v.  Mc- 
Fadden,  23  Fla.  143,  11  Am.  St.  Rep.  345; 
Handy  v.  Waldron,  18  R.  I.  567,  49  Am.  St. 
Rep.  794;  Hedin  v.  Minneapolis  Med.  &  Surg. 
Inst.,  62  Minn.  146,  54  Am.  St.  Rep.  628; 
Foster  v.  Kennedy's  Adm'r.  38  Ala.  359, 
81  Am.  Dec.  56;  Ansley  v.  Bank  of  Pied- 
mont, 113  Ala.  467;  Cooke  v.  Cook.  100  Ala. 
175;  Hecht  v.  Metzler.  14  Utah,  408.  48  Pac. 
37,  60  Am.  St.  Rep.  906;  Cole  v.  Smith,  26 
Colo.  506,  58  Pac.  1086;  Dudley  v.  Minor's 
Ex'r  (Va.)  42  S.  E.  870;  Wrenn  v.  Truitt. 
116    Ga.    708. 

29.  Van  Epps  v.  Harrison.  5  Hill  (N.  Y.) 
63,  40  Am.  Dec.  314,  318;  Parker  v.  Moulton, 
114  Mass.  99,  19  Am.  Rep.  315;  Page  v. 
Parker.  43  N.  H.  363.  80  Am.  Dec.  172,  and 
other   cases   cited   in   the   note    preceding. 


878 


DECEIT. 


§  2B 


^OT  does. the  rule  apply  where  it  appears  that  a  statement  as  to  a  matter  which 
is  sometimes,  or  even  generally,  a  matter  of  opinion,  was  intended  and  understood 
in  the  particular  case  as  a  statement  of  fact  within  the  knowledge  of  the  party 
making  it.^^  As  a  general  rule  a  statement  as  to  the  value  of  real  or  personal  prop- 
erty, stock  of  corporations,  or  choses  in  action,  is  treated  as  a  mere  statement  of 
opinion,  for  which  an  action  will  not  lie.^^  But  a  statement  as  to  the  value  of  prop- 
erty may  be  intended  as  a  statement  of  fact  within  the  knowledge  of  the  party  mak- 
m<^  it,  and  in  such  a  case  it  may  give  rise  to  an  action  of  deceit  to  the  same  extent 
as*any  other  statement  of  fact,^^  unless  it  was  made  under  such  circumstances  that 
there  was  no  right  to  rely  upon  it.^*  The  same  is  true  of  false  statements  as  to 
the  quality  or  condition  of  real  property,  or  its  adaptability  to  particular  uses,'"'  or 
as  to  the  location  or  boundaries,^^  the  number  of  acres,"  the  title,**  etc. ;  and  of 
statements  as  to  the  quality  or  condition  of  personal  property,*"  or  the  title  thereto,"" 
or  quantity,*^  etc.;  and  of  a  statement  as  to  the  amount  of  an  estate.'*^  A  state- 
ment as  to  the  financial  condition  or  credit  of  another  person  or  corporation,  while 
it  may  be  a  mere  expression  of  opinion  for  which  an  action  will  not  lie,**  may  be 
intended  and  understood  as  a  positive  statement  of  fact,  in  which  case,  if  it  was 
known  to  be  false  and  made  with  intent  to  deceive,  an  action  may  be  maintained.** 


30.  Ekins  V.  Tresham,  1  Lev.  102;  Rohr- 
schneider  v.  Knickerbocker  Life  Ins.  Co.,  76 
N.  Y.  216,  32  Am.  Rep.  290;  Peffley  v.  No- 
land,  80  Ind.  164;  McAleer  v.  Horsey.  35  Md. 
439;   Bristol  v.    Braidwood,    28   Mich.    191. 

In  a  late  Connecticut  case,  where  the 
seller  of  a  patented  improvement  in  a  ma- 
chine represented  to  the  purchaser  that  it 
had  been  extensively  sold,  and  was  in  suc- 
cessful operation  and  practical  use  in  many 
mills,  and  that  there  was  a  large  demand 
for  it,  and  that  he  found  it  a  profitable 
business,  it  was  held  that  matters  of  opinion 
were  so  blended  with  statements  of  the 
facts  from  which  they  arose,  that  they  also 
became  statements  of  fact — Scholfield  Gear 
&  Pulley  Co.  V.   Scholfield,   71  Conn.   1. 

31.  See  the  cases  in  the  notes  following. 
Ordinarily,  the  question  whether  a  state- 
ment was  intended  merely  as  a  statement 
of  opinion  or  as  a  representation  of  fact 
is  a  question  of  fact  for  the  jury — Simar  v. 
Canaday,  53  N.  Y.  298.  13  Am.  Rep.  523; 
Bradley  v.  Poole.  98  Mass.  169,  93  Am.  Dec. 
144;  Morse  v.  Shaw,  124  Mass.  59;  Homer 
v.  Perkins,  124  Mass.  431.  26  Am.  Rep.  677; 
American  Nat.  Bank  v.  Hammond,  25  Colo. 
367.    55    Pac.    1090. 

But  it  may  be  so  clearly  the  one  or  the 
other  as  to  admit  of  no  question,  in  -w-hich 
case  its  character  is  to  be  determined  by 
the  court — Gordon  v.  Butler,  105  U.  S.  553; 
Bellairs  v.  Tucker,  13  Q.  B.  Div.  562;  Hickey 
v.  Morrell,  102  N.  Y.  454,  55  Am.  Rep.  824, 
Chase's  Cas.  260,  Erwin's  Cas.  424.  Repre- 
sentations as  to  value  of  patent  rights  held 
to  be  of  fact — Coulter  v.  Clark  (Ind.)  66  N.  E. 
739. 

32.  Harvey  v.  Young,  Yelv.  21;  Davis  v. 
Meeker,  5  Johns.  (N.  Y.)  354;  Ellis  v.  An- 
drews, 56  N.  Y.  83,  15  Am.  Rep.  379;  Bos- 
singham   v.    Syck,    118   Iowa,    192. 

33.  Picard  v.  McCormick,  11  Mich.  68; 
Handy  v.  Waldron,  18  R.  I.  567.  49  Am.  St. 
Rep.  794;  Simar  v.  Canaday,  53  N.  Y.  298, 
13  Am.  Rep.  523;  Chrysler  v.  Canaday,  90 
N.  Y.  272,  43  Am.  Rep.  166,  Bigelow's  Cas. 
17;  Allen  v.  Hart,  72  111.  104;  Murray  v. 
Tolman,    162    111.    417;   McClellan   v.    Scott,    24 


Wis.   81;  Moon  v.  McKlnstry,  107  Mich.   668; 
Ruberg   V.    Brown,    50   S.    C.    397. 

34.  Ellis  V.  Andrews,  56  N.  Y.  83,  15  Am. 
Rep.  379.     See  post,  §  10. 

35.  Van  Epps  v.  Harrison,  5  Hill  (N.  Y.) 
63,  40  Am.  Dec.  314;  Hecht  v.  Metzler,  14 
Utah.  408,  48  Pac.  37,  60  Am.  St.  Rep.  906; 
Oakes  v.  Miller,  11  Colo.  App.  374,  55  Pac. 
193;  Williams  v.  McFadden,  23  Fla.  143,  11 
Am.  St.  Rep.  345;  Holcomb  v.  Noble,  69  Mich. 
396;  Tryce  v.  Dittus,  199  111.  189.  And  see 
post,  §  10,  notes  78-87,  and  cases  there  cited. 
Representations  by  vendor  that  land  is  tim- 
bered and  suitable  for  cultivation  are  of  a 
fact — Sykes  v.  Reiher  (Iowa)   91  N.  W.  920. 

36.  Foster  V.  Kennedy's  Adm'r,  38  Ala. 
359,  81  Am.  Dec.  56;  Hecht  v.  Metzler,  14 
Utah,  408,  48  Pac.  37,  60  Am.  St.  Rep.  906; 
Caldwell  v.  Henry,  76  Mo.  254;  Baker  v. 
Sherman,  71  Vt.  439.  And  see  post,  §  10. 
Pointing  out  of  boundaries  by  vendor  is  a 
representation  of  a  fact — Nelson  v.  Allen 
(Wis.)    93    N.    W.    807. 

37.  Starkweather  v.  Benjamin,  32  Mich. 
305;  Lovejoy  v.  Isbell,  73  Conn.  368;  Coon 
V.  Atwell,  46  N.  H.  510;  Griswold  v.  Gebbie. 
126  Pa.  353,  12  Am.  St.  Rep.  878.  And  see 
post,  §  10.  Compare  Gordon  v.  Parmelee, 
2  Allen  (Mass.)  212;  Bankson  v.  Lagerlof 
(Iowa)    75    N.    W.    661. 

3S.  Warden  v.  Fosdick,  13  Johns.  (N.  Y.) 
325.  7  Am.  Dec.  383;  Atwood  v.  Chapman,  68 
Me.  38,  28  Am.  Rep.  5;  Hunt  v.  Barker,  22 
R.  I.  18,  84  Am.  St.  Rep.  812.  And  see  post, 
§   10. 

39.  Stiles  V.  White,  11  Mete.  (Mass.)  356, 
45  Am.  Dec.  214;  Trice  v.  Cockran,  8  Grat. 
(Va.)    442    56   Am.    Dec.   151. 

40.  Campbell  v.  Hillman,  15  B.  Mon.  (Ky.) 
508,  61  Am.  Dec.  195;  Barney  v.  Dewey,  13 
Johns.   (N.  Y.)   224,  7  Am.  Dec.  372. 

41.  Lewis  V.  Jewell,  151  Mass.  345,  21 
Am.    St.    Rep.    454. 

42.  Wilson   v.   Nichols,    72    Conn.   173. 

43.  Haycroft  v.  Creasy,  2  East,  92;  Homer 
V.  Perkins,  124  Mass.  431,  26  Am.  Rep.  677; 
Marsh  v.   Falker,  40  N.  Y.  562. 

44.  Pasley  v.  Freeman,  3  T.  R.  51,  2 
Smith's  Lead.  Cas.   94.   Bigelow's  Cas.   1;  Up- 


2C 


CHARACTER  OF  REPRESENTATION. 


879 


The  same  is  true  of  a  false  representation  by  a  person  as  to  his  own  financial  con- 
dition, where  the  other  party  has  a  right  to  rely  upon  it.'*'* 

The  rule  that  a  mere  expression  of  opinion  or  prediction  is  not  such  fraud  as 
will  support  an  action  of  deceit  does  not  apply  where  a  person  dishonestly  expresses 
an  opinion  or  prediction  in  form,  with  intent  that  it  shall  be  relied  upon,  knowing 
at  the  time  of  the  existence  of  a  fact,  which  he  does  not  disclose,  rendering  the 
opinion  false,  or  the  fulfillment  of  the  prediction  impossible  or  improbable,  which 
fact  is  not  equally  within  the  means  of  knowledge  of  the  other  party.  In  such  a 
case  he  impliedly  represents  that  he  does  not  know  of  any  such  fact,  and  the  state- 
ment of  opinion  or  prediction  coupled  with  the  suppression  of  such  fact  is  a  false 
and  fraudulent  representation.*"  Thus  a  statement  by  the  vendor  of  a  hotel  to 
the  purchaser  that  the  lessee  is  a  most  desirable  tenant  is  a  false  representation,  and 
not  a  mere  expression  of  opinion,  where  the  vendor  knows  that  the  tenant  is  em- 
barrassed and  behind  in  the  payment  of  his  rent.*^  The  same  is  true  of  a  state- 
ment by  the  seller  of  cattle  that  they  will  weigh  so  much,  when  he  knows  that  they 
weigh  less,*^  and  of  a  statement  by  a  warehouseman  that  the  exterior  of  his  ware- 
house is  fireproof,  when  he  knows  that  portions  of  the  exterior  are  constructed  of 
wood.*^ 

Nor  does  the  rule  that  a  mere  statement  of  opinion  is  not  actionable  apply  where 
there  is  a  relation  of  special  confidence  between  the  parties,  and  the  party  making 
the  statement  has  or  is  supposed  to  have  special  knowledge  on  the  subject.  A  state- 
ment of  opinion  made  by  a  person  on  a  subject  as  to  which  he  has,  or  is  supposed 
to  have,  special  knowledge,  with  knowledge  that  it  is  false  and  with  intent  to  deceive, 
to  one  who  he  knows  to  be  ignorant  on  the  subject,  and  to  rely  on  his  opinion, 
is  such  fraud  as  will  support  an  action  of  deceit.^" 

(§2)  C.  Promises  and  statements  of  intention. — Ordinarily  a  mere  promise  or 
a  statement  of  intention  as  to  the  future,  not  being  a  representation  as  to  an  existing 
fact,  cannot  be  made  the  basis  of  an  action  of  deceit  because  it  is  not  performed  or 
fulfilled;  and  many  courts  have  held  that  this  is  true  even  though  the  promise  is 
given  or  statement  made  with  the  intention  at  the  time  not  to  perform  it,  or  with 
knowledge  that  it  cannot  be  performed.^^     This  doctrine,  however,  is  not  recognized 


ton  V.  Vail,  6  Johns.  (N.  Y.)  181,  6  Am.  Dec. 
210;  MendenhaU  v.  Stewart,  18  Ind.  App. 
262;  Einstein  v.  Marshall,  58  Ala.  153,  29 
Am.  Rep.  729;  "Wynne  v.  Allen,  7  Baxt. 
(Tenn.)  312,  32  Am.  Rep.  562;  Andrews  v. 
Jackson,  168  Mass.  266,  60  Am.  St.  Rep. 
390;  Warfield  v.  Clark,  118  Iowa,  69.  And 
see  the  other  cases  cited  ante. 

Representation  by  the  seller  of  notes  that 
the  maker  is  responsible  and  that  the  notes 
are  as  good  as  gold — Andrews  v.  Jackson, 
168    Mass.    266.    60   Am.    St.    Rep.    390. 

45.  Cain  V.  Dickenson,  60  N.  H.  371;  Eaton 
V.  Avery,  83  N.  Y.  31,  38  Am.  Rep.  389; 
Gainesville  Nat.  Bank  v.  Bamberger,  77 
Tex.  48,  19  Am.  St.  Rep.  738.  And  see  post, 
§  10,  note  6  et  seq.  Compare  Syracuse  Knit- 
ting Co.    v.   Blanchard,    69   N.    H.    447. 

46.  Smith  v.  Land  &  House  Property 
Corp.,  28  Ch.  Div.  7,  Bigelow's  Cas.  26;  Bird- 
sey  V.  Butterfield,  34  Wis.  52;  Hickey  v. 
Monell,  102  N.  Y.  454,  55  Am.  Rep.  824, 
Chase's  Cas.  260,  Erwin's  Cas.  424;  Glaspie 
V.  Keator  (C.  C.  A.)  56  Fed.  203;  French  v. 
Ryan,  104  Mich.  625. 

47.  Smith  v.  Land  &  House  Property 
Corp.,    28    Ch.   Div.    7.    Bigelow's    Cas.    26. 

48.  Birdsey   v.    Butterfield,    34   Wis.    52. 

49.  Hickey  v.  Morrell,  102  N.  Y.  454,  55 
Am.    Rep.    824. 


50.  Picard  v.  McCormlck,  11  Mich.  68; 
Chase  v.  Boughton,  93  Mich.  285;  Moon  v. 
McKinstry,  107  Mich.  668;  Gordon  v.  But- 
ler, 105  U.  S.  553;  Hedin  v.  Minneapolis  Med. 
&  Surg.  Inst,  62  Minn.  146,  54  Am.  St.  Rep. 
628;  Lofgren  v.  Peterson,  54  Minn.  343;  Vilett 
v.  Moler,  82  Minn.  12;  Robbins  v.  Barton, 
50  Kan.  120,  31  Pac.  686;  Andrews  v.  Jack- 
son, 168  Mass.  266,  60  Am.  St.  Rep.  390; 
Hicks  V.  Stevens,  121  111.  186;  Murray  v. 
Tolman,  162  111.  417;  Blacknall  v.  Rowland, 
116  N.  C.   389. 

Statement  by  a  physician  and  surgeon  in 
a  hospital  to  an  ignorant  person,  that  in- 
juries sustained  by  the  latter  are  curable 
and  can  be  cured  at  the  hospital — Hedin  v. 
Minneapolis  Med.  &  Surg.  Inst.,  62  Minn. 
146,    54   Am.    St.   Rep.    628. 

"It  is  true,  as  a  general  rule,  that  the 
expression  of  belief  or  opinion  as  to  a  par- 
ticular matter,  though  false,  cannot  be  made 
the  basis  of  an  action  of  deceit;  but  an 
opinion  falsely  expressed,  with  intent  to  de- 
fraud, may,  in  special  cases,  where  there  is 
a  disparity  of  knowledge,  and  the  parties 
do  not  stand  on  a  basis  of  equality,  be  ma- 
terial and  actionable" — Vilett  v.  Moler,  82 
Minn.   12. 

51.  Knowlton  v.  Keenan,  146  Mass.  86,  4 
Am.   St.  Rep.   282;  Dowe  v.  Morris,   149  Mass. 


880 


DECEIT. 


§  2C 


to  the  full  extent  in  all  jurisdictions.  It  is  clear  that  a  man's  intention  or  purpose 
at  a  given  time  is  a  matter  of  fact,  and  a  misrepresentation  of  intent  or  purpose  is  a 
misrepresentation  of  fact."  Many  courts,  therefore,  have  held  that  a  false  and 
fraudulent  representation  as  to  one's  intention  or  purpose,  or  a  promise  to  perform 
or  not  to  perform  acts  in  the  future,  may  be  made  the  ground  of  an  action  of  de- 
ceit, if  it  was  a  mere  device  resorted  to  without  any  intention  of  performance  and 
for  the  purpose  of  deceiving."  Thus  in  an  English  case,  where  a  prospectus  issued 
to  shareholders  in  a  company  to  invite  subscriptions  to  a  loan  contained  a  false  and 
fraudulent  statement  of  the  purposes  for  which  the  money  was  wanted,  which  was 
in  effect  a  statement  of  intention  as  to  its  application,  it  was  held  a  material  state- 
ment of  fact  for  which  an  action  of  deceit  would  lie.^*  And  in  Massachusetts,  where 
it  is  generally  held  that  a  mere  promise  will  not  support  an  action  of  deceit,  al-. 
though  made  vrith  the  intention  not  to  perform  it,  it  was  held  in  a  late  case  that  a 
promise  to  perform  acts  in  the  future,  if  a  mere  device  resorted  to  without  any 
intention  of  performance  and  for  the  purpose  of  inducing  a  debtor  to  come  within 
the  state,  to  be  there  arrested,  followed  by  his  coming  into  the  state  in  reliance  on 
such  promise,  and  by  his  subsequent  arrest,  was  such  fraud  as  would  support  an 
action." 

Some  of  the  courts  hold  that  a  person  who  sells  property  on  credit  cannot 
maintain  an  action  of  deceit  against  the  buyer  because  he  purchased  with  fraudulent 
intent  not  to  pay,  or  knowing  that  he  would  not  be  able  to  pay,^^  while  other  courts 
hold  that'  such  a  purchase  involves  a  false  and  fraudulent  representation  as  to  pres- 
ent intention,  for  which  the  action  will  lie." 

The  general  rule  that  a  promise  or  statement  of  intention  will  not  support  an 
action  of  deceit  does  not  appl5%  of  course,  where  the  promise  or  statement  is  ac- 


188,  14  Am.  St.  Rep.  404;  People  v.  Healy, 
128  111.  9,  15  Am.  St.  Rep.  90;  Gage  v.  Lewis, 
68  111.  609;  Kitson  v.  Farwell,  132  111.  327; 
Ansley  v.  Bank  of  Piedmont,  113  Ala.  467. 
59  Am.  St.  Rep.  122;  Long  v.  Woodman,  58 
Me.  49;  Burt  v.  Bowles,  69  Ind.  1;  Balue  v. 
Taylor.  136  Ind.  368;  Farrar  v.  Bridges,  3 
Humph.  (Tenn.)  565;  Farris  v.  Strong,  24 
Colo.  107,  48  Pac.  963;  Tufts  v.  Weinfeld.  88 
Wis.  647;  Closius  v.  Reiners,  13  App.  Div. 
(N.  T.)  163;  Hackett  v.  Equitable  Life  Assur. 
Soc,  30  Misc.   (N.  Y.)   523,  50  App.  Div.  266. 

But  it  has  been  held  that  making  a  prom- 
ise with  intent  not  to  perform  it  consti- 
tutes a  fraud  for  which  a  contract  may  be 
rescinded — Lawrence  v.  Gayetty,  78  Cal.  126, 
20  Pac.  382,  12  Am.  St.  Rep.  29;  Chicago. 
etc.  Ry.  Co.  v.  Titterington,  84  Tex.  21S, 
31  Am.  St.  Rep.  39;  Ansley  v.  Bank  of  Pied- 
mont.  113   Ala.    467,    59  Am.   St.   Rep.   122. 

."52.  Pollock,  Torts  (Webb's  Ed.)  359. 
"The  state  of  a  man's  mind  is  as  much  a 
fact  as  the  state  of  his  digestion" — Bowen. 
L.  J.,  in  Edgington  v.  Pitzmaurice,  29  Ch. 
Div.    459,    483. 

as.  Edgington  .v  Pitzmaurice,  29  Ch.  Div. 
459;  Ayres  v.  French,  41  Conn.  142;  Sweet 
V.  Kimball.  166  Mass.  332.  55  Am.  St.  Rep. 
406;  Goodwin  v.  Plorne.  60  N.  H.  486;  Mc- 
Cready    v.    Phillips,    56    Neb.    446. 

See.  also,  Metcalf  v.  Hart,  3  Wyo.  513.  27 
Pac.   900.   31   Pac.   407,   31   Am.   St.    Rep.   122. 

.'V4.  Edgington  v.  Pitzmaurice,  29  Ch.  Div. 
459. 

.55.  Sweet  v.  Kimball,  166  Mass.  332,  55 
Am.    St.    Rep.    406. 

S6.  Gage  v.  lewis,  68  111.  604;  People  v. 
Healy.    128    111.    9,    15    Am.    St.    Rep.    90.      And 


see  Smith  v.  Smith,  21  Pa.  367,  60  Am.  Dec. 
51. 

57.  Swift  v.  Rounds,  19  R.  I.  527,  61  Am. 
St.  Rep.  791;  Goodwin  v.  Home,  60  N.  H. 
486;  McCready  v.  Phillips,  56  Neb.  446;  Place 
V.  Minster,  65  N.  Y.  89,  Burdick's  Cas.  259; 
Anon.,  67  N.  Y.  598,  Burdick's  Cas.  240.  And 
see  Morrill  v.  Blackman,  42  Conn.  324. 

"Deceit,  to  ground  a  recovery,"  said  the 
Nebraska  court,  "must  relate  to  existing 
facts;  but  if  a  man  buys  property  on  credit, 
with  the  intention  at  the  time  of  not  pay- 
ing therefor,  his  promise  to  pay  is  but  a 
false  token  whereby  the  fraud  is  effected. 
The  real  fraud  is  the  expressed  or  implied 
representation  of  his  intention  to  pay" — Mc- 
Cready  V.    Phillips.    56    Neb.    446. 

It  has  repeatedly  been  held  that  a  pur- 
chase of  goods  with  the  fraudulent  intent 
not  to  pay  for  them  is  such  fraud  as  entitles 
the  seller  to  rescind  and  recover  the  goods 
— Durell  V.  Haley,  1  Paige  (N.  Y.)  492,  19 
Am.  Dec.  444;  Nichols  v.  Pinner,  18  N.  Y. 
306;  Wright  v.  Brown,  67  N.  Y.  1;  Rowley 
V.  Bigelow.  12  Pick.  (Mass.)  307,  23  Am. 
Dec.  607;  Dow  v.  Sanborn,  3  Allen  (Mass.) 
181;  Talcott  v.  Henderson,  31  Ohio  St.  162, 
27  Am.  Rep.  501;  Shipman  v.  Seymour,  40 
Mich.  274;  Donaldson  v.  Farwell,  93  U.  S. 
631;  Ayres  v.  French,  41  Conn.  142;  Des 
Farges  v.  Pugh,  93  N.  C.  31,  53  Am.  Rep. 
446;  Powell  v.  Bradlee.  9  Gill  &  J.  (Md.) 
220;  People  v.  Healy,  128  111.  9,  15  Am.  St. 
Rep.  90;  Ex  parte  Whittaker,  10  Ch.  App. 
446.  See.  also,  Bidault  V.  Wales,  20  Mo.  546, 
64   Am.   Dec.    205. 

Contra  Smith  v.  Smith,  21  Pa.  367,  60  Am. 
Dec.    51. 


g  2E 


CHARACTER  OF  REPRESENTATION. 


881 


companied  by  a  false  and  fraudulent  representation  of  fact,  or  by  a  fraudulent  con- 
cealment of  a  fact  which,  under  the  circumstances,  there  is  a  duty  to  disclose.^^ 

(§2)  D.  Reasons. — It  has  been  said  that  a  man's  statement  of  his  reasons  is 
not  such  a  representation  as  will  support  an  action  of  deceit,^*  and  this  is  no  doubt 
generally  true  for  the  reason  that  such  a  statement  is  ordinarily  immaterial,  or  is  one 
upon  which  persons  are  not  supposed  to  rely.  Such  a  statement,  however,  is  as  much 
a  statement  of  fact  as  it  is  a  statement  as  to  a  man's  intention,  and  it  would  probably 
be  held  actionable  if  shown  to  be  material,  to  have  been  intended  to  deceive,  and  to 
have  deceived.®" 

(§3)  E.  Misrepresentation  of  law. — As  a  rule,  a  false  representation  of  the 
law,  not  being  a  representation  of  fact,  does  not  constitute  fraud,  and  will  not  sup- 
port an  action  of  deceit,  although  made  with  intent  to  deceive.®^  The  reason  is  that  a 
person  is  presumed  to  know  the  law,  and  has  no  right  to  rely  upon  a  statement  of 
matter  of  law  made  by  another.*^  The  rule  applies,  for  example,  in  the  absence 
of  special  circumstances,  where  a  person  misrepresents  the  legal  effect  of  a  contract, 
to  induce  another  to  enter  into  it,  there  being  no  misrepresentation  as  to  the  con- 
tents f^  or  where  a  person  misrepresents  the  legal  effect  of  certain  acts,  to  induce  an- 
other to  release  a  claim,  or  to  settle  for  less  than  is  due  under  a  contract.®* 

This  rule  does  not  apply,  however,  to  a  misrepresentation  as  to  one's  private 
rights,  which  is  regarded  as  a  statement  of  fact,  although  it  may  involve  matters 
of  law,®^  as  a  statement  by  a  corporation  or  its  officers,  express  or  implied  from  con- 
duct, that  a  certain  power  is  conferred  upon  it  by  its  charter,  the  person  relying 
on  the  representation  not  having  notice  of  the  terms  of  the  charter  f^  or  where  the 
holder  of  a  tenant's  notes  for  the  rent  of  land  makes  false  representations  to  a  sub- 
tenant, who  is  ignorant  of  the  terms  of  the  contract  between  the  landlord  and  ten- 
ant, as  to  the  legal  right  in  respect  to  crops  grown  on  the  land,  and  thereby  induces 
the  subtenant  to  surrender  a  right.®^  A  representation  by  an  officer  that  certain 
property  has  been  attached  by  him  is  a  representation  of  fact,  and  not  of  law.®* 

'Not  does  the  rule  apply  where  there  is  a  special  relation  of  confidence  between 


And  if  this  is  so,  there  is  no  good  reason 
why  it  should  not  be  held  such  fraud  as 
will  support  an  action  of  deceit.  The  Illi- 
nois court,  however,  has  made  a  distinction. 
See  People  v.  Healy,  128  111.  9.  15  Am.  St. 
Rep.    90. 

5S.  Pollock  V.  Sullivan,  53  Vt.  507,  38 
Am.  Rep.  702;  Kley  v.  Healy,  127  N.  Y.  555; 
Blake  v.  Blackley,  109  N.  C.  257,  26  Am.  St. 
Rep.    566. 

A  woman  may  maintain  an  action  of  de- 
ceit against  a  married  man  for  promising- 
to  marry  her,  and  is  not  limited  to  an  ac- 
tion of  assumpsit — Pollock  v.  Sullivan,  53 
Vt.    507,    38    Am.    Rep.    702. 

59.  Vernon    v.    Keyes,    4    Taunt.    488. 

60.  Pollock,  Torts  (Webb's  Ed.)  360. 
Polloc'i  here  gives  as  an  example  the  case 
of  a  buying  agent's  falsely  naming,  not 
merely  as  the  highest  price  which  he  is  will- 
ing to  give,  but  as  the  actual  limit  of  his 
authority,  a  sum  lov/er  than  that  for  which 
he  is  really  empowered  to  deal.  See,  also, 
Edelman  v.  Latshaw,   180  Pa.   419. 

61.  Pollock,  Torts  (Webb's  Ed.)  361; 
Rashdall  v.  Ford,  L.  R.  2  Eq.  750;  Thomp- 
son V.  Phoenix  Ins.  Co.,  75  Me.  55,  46  Am. 
Rep.  357;  Upton  v.  Tribilcock,  91  U.  S.  45; 
Burt  V.  Bowles,  69  Ind.  1;  Aetna  Ins.  Co. 
V.  Reed,  33  Ohio  St.  283;  Gormely  v.  Gym- 
nastic Ass'n,  55  Wis.  350;  Beall  v.  McGehee, 
57  Ala.   438;   Lehman  v.   Shackleford,   50  Ala. 

Curr.  Law — 56. 


437.      And    see    Fish    v.    Cleland,    33    ill.    238; 
Reed   v.   Sidener,   32  Ind.   373. 

62.  See   the   cases  above  cited. 

63.  Upton  v.  Tribilcock,  91  U.  S.  45;  Rus- 
sell V.  Branham,  S  Blackf.  (Ind.)  277;  Jag- 
gar  V.  Winslow,  30  Minn.  263,  and  other 
cases  in  note   26   et  seq.,   supra. 

64.  Thus  it  was  held  that  one  who  had 
a  claim  against  an  insurance  company  for 
loss  by  fire,  and  who  was  induced  to  set- 
tle for  less  than  the  amount  of  his  claim 
by  the  false  representation  of  the  com- 
pany's agent  that  his  policy  had  been  for- 
feited by  non-occupancy  of  the  premises, 
could  not  maintain  an  action  of  deceit 
against  the  company — Thompson  v.  Phoenix 
Ins.   Co.,    75   Me.   55,    46   Am.    Rep.    357. 

65.  Pollock,    Torts     (Webb's    Ed.)    361. 

66.  West  London  Com.  Bank  v.  Kitson, 
13  Q.  B.  Div.  360,  holding  that  acceptance 
of  a  bill  by  directors  of  a  company  in- 
corporated by  a  private  act  of  parliament 
was  a  representation  by  them  to  persons 
who  might  purchase  the  bill  that  the  com- 
pany had  power  under  the  act  to  accept 
the  same,  that  it  was  a  representation  of 
fact  and  not  merely  of  law,  and  being 
false,  the  directors  were  liable  to  an  ac- 
tion. 

67.  Lehman  v.   Shackleford,   50  Ala.    437. 

68.  Burns   v.    Lane.    138    Mass.    350. 


882 


DECEIT. 


Ihe  parties,  as  where  a  lawyer  misrepresents  the  law  to  one  who  he  knows  is  relying 
on  his  advice,  or  even  where  a  layman  does  so  to  one  whom  he  knows  to  be  ignorant 
of  the  law  and  to  depend  on  his  statement.  In  either  case  there  is  a  special  relation 
of  confidence,  and  a  false  representation  as  to  the  law,  made  with  intent  to  deceive, 
is  such  frand  as  will  support  an  action  of  deceit.*'® 

Persons  are  not  chargeable  with  notice  of  the  laws  of  a  foreign  coimtry  or  of 
another  state,  and  a  false  representation  as  to  such  laws,  therefore,  is  treated  as  a 
representation  of  fact  which  will  support  an  action.'^" 

(§  2)  F.  Immaierial  statements. — A  false  representation,  in  order  that  it  may 
amount  to  actionable  fraud,  must  be  as  to  a  material  fact.'^^  Thus  where  the  defend- 
ant, to  induce  the  plaintiff  to  enter  into  a  contract  to  build  a  section  of  railroad, 
falsely  represented  that  he  had  purchased  certain  rails,  and  would  sell  them  to  the 
plaintiff  at  a  certain  price,  the  court  held  that  the  representation  that  the  defendant 
would  sell  the  rails  to  the  plaintiff,  being  a  mere  promise,  would  not  support  an  ac- 
tion for  deceit,  and  that  the  action  could  not  be  sustained  on  the  false  representation 
that  he  had  purchased  the  rails,  since  this,  separated  from  the  promise,  was  unim- 
portant and  immaterial. '^^ 

(§  2)  G.  Vague  statements. — A  statement  does  not  amount  to  such  a  represen- 
tation as  will  support  an  action  of  deceit  if  it  is  so  vague  or  indefinite  that  a  person 
of  ordinary  intelligence  would  not  rely  upon  it.  Such  is  the  case,  for  example,  where 
a  vendor  of  land  points  out  a  line  as  the  "probable"  boundary,'^'  or  where  a  pur- 
chaser of  goods  on  credit  asserts  that  he  is  "a  person  safely  to  be  trusted  and  given 
credit  to.""^* 

(§2)  H.  Avibiguous  statements. — The  fact  that  a  statement  is  ambiguous 
does  not  prevent  it  from  being  made  the  ground  of  an  action  of  deceit,  but  in  such  a 
case  it  is  incumbent  upon  the  plaintiff  to  show  that  the  statement  was  reasonably 
capable  of  a  meaning  rendering  it  false  and  misleading,  and  that  he  relied  upon  it 
in  that  sense.'^^ 

§  3.  Oral  representations  and  the  statute  of  frauds. — The  rule  that  parol  evi- 
dence is  not  admissible  to  add  to  or  vary  a  written  contract  does  not  exclude  parol 
evidence  of  a  false  and  fraudulent  representation,  not  as  a  term  of  the  contract,  but 


69.  Townsend  v.  Cowles,  31  Ala.  428; 
Lehman  v.  Shackleford.  50  Ala.  437;  More- 
land  V.  Atchison,  19  Tex.  303  (where  the 
seller  of  land  to  a  newly  arrived  immigrant 
falsely  represented  that  the  title  was  good). 

70.  Haven  v.  Foster.  9  Pick.  (Mass.)  112, 
19  Am.  Dec.  353;  Wood  v.  Roeder,  50  Neb. 
476;  Rosenbaum  v.  United  States  Credit 
System   Co.,    64   N.   J.   Law.    34. 

One  who  has  purchased  a  warrant  of 
another  state,  in  reliance  on  a  false  and 
fraudulent  representation  of  the  seller  as 
to  the  statute  of  limitations  of  the  other 
state,  may  maintain  an  action  of  deceit — 
Wood   v.   Roeder,    50   Neb.    476. 

71.  Hedden  v.  Griffin,  136  Mass.  229,  49 
Am.  Rep.  25;  Dowe  v.  Morris,  149  Mass.  188, 
14  Am.  St.  Rep.  404.  And  see  Holbrook  v. 
Connor,  60  Me.  578.  11  Am.  Rep.  212;  Young 
v.  Young.  113  111.  430;  Tuck  v.  Downing, 
76  111.  71;  Winston  v.  Young,  52  Minn.  1; 
Palmer  v.  Bell,  85  Me.  352;  Nounnan  v. 
Sutter  County  Land  Co.,  81  Cal.  1,  22  Pac. 
515:  .Tordan  v.  Pickett,  78  Ala.  331;  Hart  v. 
Waldo   n_;a.)    43   S.  E.   998. 

Whether  a  representation  was  material, 
there  being  no  dispute  as  to  the  facts,  is 
purely    a    question    of    law    for    the    court — 


Greenleaf  v.  Gerald,  94  Me.  91,  80  Am.  St. 
Rep.  377;  Caswell  v.  Hunton,  87  Me.  277. 
Compare,  however,  Fottler  v.  Moseley,  179 
Mass.    295. 

False  representations  by  the  seller  of 
letters  patent  for  the  manufacture  of  an 
article,  as  to  the  cost  of  manufacturing  the 
article,  are  material — Braley  v.  Powers.  92 
Me.    203. 

A  misrepresentation  as  to  quantity  of 
land  of  18  acres  on  sale  of  160  is  material — 
Leicher   v.   Keeney    (Mo.  App.)    72   S.  W.   145. 

72.  Dowe  V.  Morris,  149  Mass.  188,  14 
Am.    St.    Rep.    404. 

"U^'here  the  president  of  a  corporation,  to 
procure  credit  for  it,  represents  that  It  is 
solvent,  and  also  falsely  represents  that 
none  of  its  assets  are  incumbered  and  that 
it  is  doing  a  profitable  business,  the  fact 
that  the  corporation  is  solvent  does  not 
render  the  other  representations  immaterial 
— Shaw   v.   Gilbert,   111   Wis.   165. 

73.  Hall  V.  Thompson,  1  Smedes  &  M. 
(Miss.)    443,   483. 

74.  Lyons  v.  Briggs,  14  R.  I.  222.  51  Am. 
Rep.    372. 

75.  Pollock,  Torts  (Webb's  Ed.)  380; 
Smith    V.    Chadwlck,    9    App.    Cas.    187. 


§4 


BY  CONDUCT. 


883 


<5s  an  inducement  thereto,  and  for  the  purpose  of  an  action  of  deceit.^^  Nor  is  evi- 
dence of  an  oral  representation  rendered  inadmissible  because  it  was  made  as  an 
inducement  to  a  contract  which  is  within  the  statute  of  frauds." 

An  action  of  deceit  for  false  and  fraudulent  representations  as  to  the  credit  or 
identity  of  another  is  not  within  the  clause  of  the  statute  of  frauds  providing  that 
no  action  shall  be  brought  to  charge  a  person  upon  any  oral  promise  to  answer  for 
the  debt,  default,  or  miscarriage  of  another.''^  In  some  jurisdictions,  however,  it 
is  expressly  provided,  in  somewhat  varying  language,  that  no  action  shall  be  brought 
to  charge  any  person  upon  or  by  reason  of  any  representation  or  assurance  made  or 
given,  concerning  or  relating  to  the  character,  conduct,  credit,  ability,  trade,  or 
dealings  of  any  other  person,  to  the  intent  or  purpose  that  such  person  may  ob- 
tain credit,  money,  or  goods  thereupon,  unless  such  representation  or  assurance  be 
made  in  writing,  signed  by  the  party  to  be  charged  therewith."  Such  a  statute 
prevents  an  action  of  deceit  for  false  and  fraudulent  representations,  not  in  writing 
and  signed,  made  by  one  person  to  another  concerning  the  financial  condition  or 
credit  of  a  third  person,  to  whom  the  person  to  whom  the  representation  is  made 
is  thereby  induced  to  extend  credit  to  his  damage  ;*"  but  it  does  not  affect  the  right 
to  maintain  an  action  for  oral  false  representations  concerning  third  persons  or 
their  property,  which  do  not  affect  their  credit,  or  are  not  made  with  intent  to  give 
them  credit.^^ 

§  4.  Misrepresentation  hy  conduct. — A  false  representation  of  fact  may  be 
made,  both  for  the  purpose  of  avoidance  of  a  contract  and  for  the  purpose  of  an 
action  of  deceit,  by  conduct  as  well  as  by  words.  Any  act  intentionally  done,  which 
naturally  and  distinctly  conveys  an  impression  that  a  particular  fact  does  or  does 
not  exist,  is  as  much  a  representation  that  such  fact  does  or  does  not  exist  as  an 
express  representation  in  words.*^ 

Thus  one  who  assumes  to  accept  a  bill,  or  make  any  other  contract  as  ao-ent 


76.  Dobell  V.  Stevens,  3  Barn.  &  C.  623; 
Picard  v.  McCormick,  11  Mich.  68,  76;  Hang-- 
er  V.  Bvins,  3S  Ark.  334;  Newell  v.  Horn, 
45  N.  H.  421;  Cobb  v.  O'Neal,  2  Sneed  (Tenn.) 
438. 

77.  Poss  V.  Newbury,  20  Or.  257,  25  Pac. 
669.  See.  also,  Catalain  v.  Catalain.  124 
Ind.  54,  19  Am.  St.  Rep.  73. 

78.  Pasley  v.  Freeman,  3  Term  R.  51, 
2  Smith'.s  Lead.  Cas.  94,  Bigelow's  Cas.  1; 
Hamar  v.  Alexander,  2  Bos.  &  P.  (N.  R.) 
241;  Upton  v.  Vail,  6  Johns.  (N.  T.)  181,  5 
Am.  Dec.  210;  Ewins  v.  Calhoun.  7  Vt.  79. 
See.  also,  Lahay  v.  City  Nat.  Bank,  15  Colo. 
339.   25   Pac.   704,  22  Am.   St.  Rep.   407. 

Contra  Newsom  v.  Jackson,  26  Ga.  241,  71 
Am.    Dec.     206. 

The  clause  of  the  statute  requiring  ^ 
promise  to  answer  for  the  debt  of  another 
to  be  in  writing  does  not  prevent  an  ac- 
tion of  deceit  against  an  officer  of  a  bank 
by  a  depositor  for  false  representations  as 
to  the  condition  of  the  bank,  by  reason  of 
whicl-i  the  depositor  has  suffered  loss — 
Kemp  V.  National  Bank  of  Republic  (C.  C. 
A.)    109    Fed.    48. 

79.  The  original  statute  In  England  was 
the  statute  of  9  Geo.  IV.  c.  14,  known  as 
Lord    Tenderden's   Act. 

80.  Haslock  V.  Fergiisson,  7  Adol.  &  B. 
86;    Kimball    v.    Comstock,    14    Gray    (Mass.) 


510 

386 
20S 


Mann    v.     Blanchard,     2    Allen     (Mass.) 

McKinney   v.   "Whiting,    8    Allen    (Mass.) 

Hearn     v.     "Waterhouse,      39     Me.      96; 


Nevada    Bank    v.     Portland     Nat.     Bank,     59 


Fed  338;  Cook  v.  Churchman,  104  Ind.  141, 
Compare,  however.  Ball  v.  Farley,  81  Ala. 
292;  Warren  v.  Barker,  2  Duv.   (Ky.)   156. 

81.  Medbury  v.  Watson,  6  Met.  (M.iss.) 
246.  39  Am.  Dec.  726;  Norton  v.  Huxley,  13 
Gray  (Mass.)  287;  Stannard  v.  Kingsbury 
179  Mass.  174;  Hess  v.  Culver,  77  Mich.  598* 
18  Am.  St.  Rep.  421;  Lahay  v.  City  Nat. 
Bank,  15  Colo.  339,  25  Pac.  704,  22  Am.  St 
Rep.    407. 

An  action  against  a  person  for  fraudulent- 
ly signing  his  name  as  a  witness  to  a  false 
signature  of  a  letter  of  credit,  whereby  the 
plaintiff  was  induced  to  sell  goods  on  credit 
to  the  person  named  in  the  letter,  is  not 
founded  on  an  oral  representation  as  to  the 
solvency  or  credit  of  another,  within  a 
statute  providing  that  no  action  shall  be 
maintained  to  charge  a  person  by  reason  of 
any  representation  made  concerning  the 
credit,  ability,  trade,  or  dealings  of  any 
other  person,  unless  made  in  writing  and 
signed  by  the  party  to  be  charged — Men- 
denhall  v.  Stewart,  18   Ind.  App.  262. 

Such  statute  applies  to  false  representa- 
tions as  to  the  condition  and  property  of  a 
corporation,  whereby  a  person  is  induced 
to  purchase  shares  of  stock  directly  from 
it — Heintz  v.  Mueller,  19  Ind.  App.  240. 
Compare  Hubbard   v.    Long,    105    Mich.    442 

82.  Polhill  V.  Walter,  3  Barn.  &  Ad.  114; 
West  London  Com.  Bank  v.  Kitson,  13  Q.  b! 
Div.  360:  Mudsill  Min.  Co.  v.  Watrous  (C.  c! 
A.)  61  Fed.  163;  Croyle  v.  Moses,  90  Pa.  2Bo! 
35   Am.    Rep.    654;    Swift  v.   Rounds,    19   R.   i' 


•^84 


DECEIT. 


for  another,  impliedly  represents  that  he  has  authority  to  do  so,  and  if  he  knows 
':hat  he  has  no  such  authority,  he  is  liable  in  an  action  of  deceit  for  any  damages 
lustaincd  by  the  other  party.*'  In  like  manner  officers  of  a  corporation,  who  ac- 
cept a  bill  in  its  name  and  put  the  same  in  circulation,  thereby  represent  that  the 
corporation  has  power  under  its  charter  to  accept  the  bill.^*  Persons  who  issue 
bills  or  notes  in  the  name  of  a  pretended  corporation  impliedly  represent  that  there 
is  such  a  corporation,  and  if  the  representation  is  known  to  be  false,  they  are  liable 
0  purchasers  in  an  action  of  deceit.*^ 

There  is  also  a  false  representation  by  conduct  for  which  an  action  of  deceit 
rill  lie,  where  a  person  fraudulently  draws  a  check  on  a  bank  knowing  that  he  has 
10  funds  to  meet  it,  or  where  the  holder  of  a  check  transfers  it,  or  fraudulently 
Dresents  it  and  obtains  payment  or  credit,  knowing  that  the  drawer  has  no  funds  f* 
where  a  person  fraudulently  procures  a  minor  to  indorse  a  note,  and  then  sells  the 
note  or  authorizes  it  to  be  sold  to  one  who  relies  on  such  indorsement;®^  where  a 
person  purchases  goods  on  credit  with  the  fraudulent  intent  not  to  pay  for  them  f^ 
where  a  person  selling  grain  by  measurement  or  weight  puts  a  foreign  substance 
therein  to  increase  the  bulk  or  weight;**  where  the  seller  of  land  pours  petroleum 
thereon  to  give  it  a  deceptive  appearance  as  oil  land;*"  where  the  seller  of  a  mine 
mixes  silver  in  samples  of  ore  taken  from  the  mine  f^  where  a  seller  of  goods  fraud- 
ulently packs  them  in  such  a  way  as  to  present  a  favorable  exterior  not  truly  rep- 
resenting the  character  of  the  goods  f-  where  a  broker  selling  property,  and  having 
knowledge  of  a  defect  in  his  principal's  title,  directs  an  investigation  to  a  place  where 
he  knows  that  no  satisfactory  information  can  be  obtained,  instead  of  to  another  place 
where  the  truth  can  be  ascertained."^ 

§  5.  Nondisclosure  and  concealment  of  facts. — As  between  parties  who  have 
entered  into  a  contract,  and  particularly  in  the  case  of  sales  of  real  or  personal  prop- 
erty, a  failure  of  one  of  the  parties  to  disclose  facts  within  his  knowledge,  and  not 
within  the  knowledge  of  the  other  party,  is  frequently  relied  upon  as  constituting 
fraud,  not  only  for  the  purpose  of  avoiding  the  transaction,  but  also  for  the  pur- 
pose of  an  action  of  deceit;  but  it  is  well  settled  that  it  does  not  amount  to  fraud 
for  either  purpose  except  under  special  circumstances.  The  general  rule  is  that 
the  mere  failure  of  one  of  the  parties  to  a  sale  of  real  or  personal  property,  or  other 
contract,  to  disclose  facts  within  his  knowledge,  and  which,  if  disclosed  to  the  other 
party,  might  prevent  him  from  entering  into  the  contract,  does  not  amount  to 
fraud,  either  for  the  purpose  of  avoiding  the  contract  or  for  the  purpose  of  main- 
taining an  action  of  deceit,  unless  the  nature  of  the  transaction  or  the  relation  of 
the  parties  is  such  as  to  impose  a  duty  to  disclose  the  facts.^'*  As  applied  to  nondis- 
closure by  the  vendor  of  property,  the  rule  is  expressed  in  the  maxim,  caveat  emptor. 


527.  61  Am.  St.  Rep.  791;  Mizner  v.  KusseU, 
29  :RIich.  229;  Chisolm  v.  Gadsden,  1  Strobh. 
L.  (S.  C.)  220,  47  Am.  Dec.  550;  Paddock  v. 
Strobridge,   29  Vt.  470. 

83.     Polhill  V.  Walter,  3  Barn.  &  Ad.  114. 

S4.  West  London  Com.  Bank  v.  Kitson,  13 
Q.  B.  r>iv.  360. 

85.  Bartholomew  v.  Bentley.  15  Ohio,  659, 
45  Am.  Dec.  596. 

86.  Peterson  v.  Union  Nat.  Bank,  52  Pa. 
206,  91  Am.  Dec.  146;  True  v.  Thomas,  16  Me. 
36. 

87.  Lobdell  v.  Baker,  1  Met.  (Mass.)  193, 
35  Am.  Dec.  35S. 

8.S.  Swift  V.  Rounds,  19  R.  I.  527,  61  Am. 
St.  Rep.  791.    See  supra,  §  2  C. 

89.  West  V.  Bradley.  6  Ind.  394. 

90.  Chester  v.  Dickerson,  52  Barb.  (N.  Y.) 
349. 


91.  Mudsill  Min.  Co.  v.  Watrous  (C.  C.  A.) 
61  Fed.  163. 

93.  Singleton's  Adm'r  v.  Kennedy,  9  B. 
Mon.  (Ky.)   222. 

93.  Chisolm  v.  Gadsden,  1  Strobh.  L.  (S. 
C.)   220,  47  Am.  Dec.  550. 

94.  Peek  V.  Gurney,  L.  R.  6  H.  L.  403; 
Hadley  v.  Clinton  County  Importing  Co.,  13 
Ohio  St.  502.  82  Am.  Dec.  454;  Laidlaw  v.  Or- 
gan. 2  Wheat.  (U.  S.)  178;  Cleaveland  v. 
Richardson.  132  U.  S.  318;  Dambman  v. 
Schulting,  75  N.  T.  55;  Harris  v.  Tyson,  24 
Pa.  347,  64  Am.  Dec.  661;  Butler's  Appeal,  26 
Pa.  63;  Smith  v.  Beatty,  2  Ired.  Eq.  (N.  C.) 
456,  40  Am.  Dec.  435;  Bening-er  v.  Corwin.  24 
N.  J.  Law.  257;  Crowell  v.  Jackson,  53  N.  J. 
Law,  656:  Iron  City  Nat.  Bank  v.  Anderson. 
194  Pa.   205. 


§  5 


NONDISCLOSURE  AND  CONCEALMENT. 


885 


The  difficulty  in  applying  the  rule  is  in  determining  what  circumstances  impose  the 
duty  to  disclose  facts. 

All  of  the  courts  no  doubt  agree  that  where  the  parties  are  dealing  at  arm's 
length,  and  do  not  occupy  a  confidential  relation,  the  vendor  of  land  is  under  no 
duty  to  disclose  to  the  purchaser  facts  affecting  the  condition  or  value  of  the  land, 
which  the  purchaser  might  ascertain  for  himself  by  inquiry  or  examination,  and 
his  failure  to  disclose  such  facts,  where  there  is  nothing  more,  does  not  amount  to 
fraud.®'  The  same  is  true  of  mere  nondisclosure  of  facts  by  a  lessor  of  premises,*^ 
or  by  a  seller  of  personal  property.®^  And  it  is  only  where  a  special  relation  of 
confidence  exists,  or  where  inquiry  is  made,  that  a  purchaser  of  real  or  personal 
property  is  under  any  duty  to  disclose  facts  known  to  him,  and  not  known  to  the 
seller,  enhancing  the  value  of  the  property.®*  Failure  of  a  purchaser  of  goods 
on  credit  to  disclose  his  insolvency  is  not  such  fraud  as  will  sustain  an  action  of 
deceit,  where  he  is  not  asked  as  to  his  financial  condition.*® 

When  the  general  rule  does  not  apply. — The  general  rule  that  mere  nondis- 
closure of  facts  is  not  fraud  does  not  apply  where  there  is  a  special  relation  of  trust 
and  confidence  between  the  parties,  or  where,  for  any  other  reason,  the  circum- 
stances are  such  as  to  impose  as  a  matter  of  good  faith,  a  duty  to  disclose  the  facts.^ 


95.  Long  V.  Warren,  68  N.  Y.  426,  Chase's 
Cas.  263;  Hall  v.  Thompson,  1  Smedes  &  M. 
(Miss.)  443,  481.  Failure  of  vendor  of  land 
to  disclose  the  fact  that  the  boundary  is  in 
dispute — Baker  v.  Sherman,  71  Vt.  439. 

96.  In  Keates  v.  Earl  of  Cadogan,  10  C.  B. 
591,  it  was  held  that  a  lessee  of  premises 
could  not  maintain  an  action  of  deceit 
against  the  lessor  because  of  the  latter's  fail- 
ure to  disclose  the  fact  that  the  premises 
•u'-ere  in  a  ruinous  condition  and  unfit  for 
habitation,  although  he  kneyv  that  they  were 
leased  for  immediate  occupation. 

"It  is  not  pretended,"  said  Jervis,  C.  J., 
"tliat  there  was  any  warranty,  express  or  im- 
plied, that  the  house  was  fit  for  immediate 
occupation,  but  it  is  said  that  because  the 
defendant  knew  that  the  plaintiff  -wanted  it 
for  immediate  occupation,  and  knew  that  it 
was  in  an  unfit  and  dangerous  state,  and  did 
not  disclose  that  fact  to  the  plaintiff,  an  ac- 
tion of  deceit  will  lie.  The  declaration  does 
not  allege  that  the  defendant  made  any  mis- 
representation, or  that  he  had  reason  to  sup- 
pose that  the  plaintiff  -would  not  do  what 
any  man  in  his  senses  would  do,  namely, 
make  proper  investigation  and  sati.sfy  him- 
self as  to  the  condition  of  the  house  before 
he  entered  upon  the  occupation  of  it.  There 
is  nothing  amounting  to  deceit."  See,  also, 
Foster  V.  Peyser,  9  Cush.  (Mass.)  242,  57  Am. 
Dec.  43:  Lucas  v.  Coulter,  104  Ind.  81. 

97.  Kohl  V.  Lindley,  39  111.  195,  89  Am. 
Dec.  294;  Beninger  v.  Corwin,  24  N.  J.  Law, 
257;  Hadley  v.  Clinton  County  Importing  Co., 
13  Ohio  St.  502,  82  Am.  Dec.  454;  Brown  v. 
Gray,  6  Jones  L.  (N.  C.)  103,  72  Am.  Dec.  563; 
West  V.  Anderson,  9  Conn.  107,  21  Am.  Dec. 
737;  Paul  v.  Hadley,   23  Barb.    (N.  Y.)    521. 

"Caveat  emptor  is  the  general  rule  of  the 
common  law.  If  defects  in  the  property  sold 
are  patent,  and  might  be  discovered  by  the 
exercise  of  ordinary  attention,  and  the  buyer 
has  an  opportunity  to  inspect  the  property, 
the  law  does  not  require  the  vendor  to  point 
out  defects" — Grigsby  v.  Stapleton,  94  Mo. 
423,  Chase's  Cas.  258. 

98.  Thus  it  is  not  a  fraud  for  the  pur- 
chaser of  goods  at  the  market  price  to  dis- 


close facts  which  if  known  generally  would 
greatly  enhance  the  price — Laidlaw  v.  Or- 
gan, 2  Wheat.   (U.  S.)   178. 

And  the  purchaser  of  land  is  not  guilty  of 
fraud  in  failing  to  disclose  the  fact  known 
to  him  only,  that  there  is  a  mine  on  the  land 
— Fox  V.  Mackreth,  2  Brown  Ch.  420;  Harris 
v.  Tyson,  24  Pa.  347,  64  Am.  Dec.  661-  But- 
ler's Appeal,  26  Pa.  63;  Smith  v.  Beatty  2 
Ired.  Eq.  (N.  C.)  456,  40  Am.  Dec.  435. 

99.  People  V.  Healy,  128  111.  9,  15  Am.  St. 
Rep.  90;  Hennequin  v.  Naylor,  24  N.  Y.  139; 
Nichols  V.  Pinner.  18  N.  Y.  295;  Talcott  v' 
Henderson,  31  Ohio  St.  162,  27  Am.  Rep  501- 
Rodman  v.  Thalheimer,  75  Pa.  232;  Le  Grand 
v.  Eufaula  Nat.  Bank,  81  Ala.  123,  60  Am 
Rep.  140. 

It  is  otherwise,  as  we  have  seen,  vrhere 
goods  are  purchased  with  fraudulent  intent 
not  to  pay  for  them.    See  ante,  §  2  C. 

1.  Mallory  v.  Leach,  35  Vt.  156,  82  Am. 
Dec.  625;  Bennett  v.  McMillin,  179  Pa.  146,  57 
Am.  St.  Rep.  591;  Stewart  v.  Wyoming  Cattle 
Ranche  Co.,  128  U.  S.  383,  Erwin's  Cas.  430; 
Thomas  v.  Murphy,  87  Minn.  358. 

Concealment  by  purchaser  of  superior 
knowledge  of  value  is  not  fraud — Pratt  Land 
&  Imp.  Co.  v.  McClain,  1^5  Ala.  452.  Failure 
of  broker  to  disclose  facts  to  his  principal 
held  fraudulent — Holm.es  v.  Cathcart,  88 
Minn.  213;  Rank  v.  Garvey  (Neb.)  92  N  W 
1025. 

And  there  Is  a  relation  of  confidence  with- 
in this  rule  if  a  person  knows  that  another 
relies  upon  his  knowledge  and  permits  him 
to  do  so,  although  their  relation  is  not  oth- 
erwise a  confidential  one — Bennett  v  Mc- 
Millin,  177  Pa.   146,  57  Am.  St.   Rep.   59l". 

Where  an  executor  who  had  sold  stock  be- 
longing to  the  estate  of  his  father,  and  con- 
sidered worthless,  for  a  nominal  sum,  and 
afterwards  received  a  letter  directed  to  the 
'lecedent  offering  a  certain  amount  for  the 
stock,  repurchased  it  from  the  purchaser, 
stating  to  him  that  he  wanted  it  because  it 
belonged  to  his  father,  and  that  it  was  of  no 
value,  it  was  held  that  he  was  liable  to  the 
purchaser  in  an  action  of  deceit — Edelman  v 
Latshaw.  180  Pa.  419. 


886 


DECEIT. 


While  it  is  not  fraud  for  the  vendor  of  land  to  fail  to  disclose  facts  affecting 
its  value,  which  the  purcluiser  might  ascertain  for  himself,  it  is  a  fraud  for  him 
to  fail  to  disclose  a  defect  in  his  title  not  apparent  on  the  face  of  the  title  deeds,  or 
other  material  facts  peculiarly  within  his  own  knowledge,  and  which  he  knows  are 
not  within  the  k-nowledge  or  equal  means  of  knowledge  of  the  purchaser.^  And 
while  the  lessor  of  premises  is  under  no  duty  to  disclose  the  fact  that  they  are  unfit 
for  habitation  because  of  want  of  repair,  a  fact  which  the  lessee  can  ascertain  for 
himself,  it  is  a  fraud  for  him  to  fail  to  disclose  that  they  are  infected  with  a  con- 
tagious disease  or  otherwise  subject  to  a  nuisance  prejudicial  to  health.' 

In  like  manner,  a  seller  of  personal  property,  while  he  is  under  no  duty  to  dis- 
close defects  which  are  patent  or  other  facts  which  the  purchaser  may  ascertain  for 
himself  by  the  exercise  of  ordinary  diligence,  is  bound,  according  to  the  great  weight 
of  authority,  to  disclose  latent  defects  within  his  knowledge,  which  he  knows  are 
not  within  the  knowledge  of  the  purchaser,  and  which  render  the  property  unfit,  or 
less  fit  than  it  would  otherwise  be,  for  the  purposes  for  which  it  is  purchased ;  and 
if  he  intentionally  remains  silent  as  to  such  defects,  he  is  guilty  of  a  fraud,*  un- 
less the  sale  is  expressly  made  "with  all  faults.""  This  rule  has  been  applied,  for 
example,  to  a  sale  of  cattle,  known  by  the  vendor  to  be  infected  with  a  contagious 
disease,  without  disclosing  this  fact  f  to  the  sale  of  a  horse  without  disclosing  the 
fact  that  it  is  affected  by  a  secret  malady  of  a  fatal  character;^  to  the  sale  of  a 
cow,  known  to  be  purchased  for  breeding  purposes,  without  disclosing  a  latent  de- 
fect rendering  her  unfit  for  such  purpose;*  to  the  sale  of  provisions  for  domestic 
use  with  knowledge  that  they  are  unwholesome  f  to  the  sale  of  hay  without  disclosing 


2.  1  Sugd.  Vend.  564;  Bryant's  Ex'r  v. 
Boothe.  30  Ala.  311.  68  Am.  Dec.  117;  Peebles 
V.  Stephens,  3  Bibb  (Ky.)  324,  6  Am.  Dec. 
660;  Burns  v.  Dockray,  156  Mass.  135.  See. 
also,  Camp  v.  Camp,  2  Ala.  632,  36  Am.  Dec. 
423. 

3.  Minor  v.  Sharon,  112  Mass.  477,  17  Am. 
Rep.  122;  Cesar  v.  Karutz,  60  N.  Y.  229,  19 
Am.  Rep.  164.  Compare  Erskine  v.  Adeane. 
8  Ch.  App.  756. 

4.  Hoe  V.  Sanborn,  21  N.  Y.  552,  78  Am. 
Dec.  163;  Brown  v.  Montgomery,  20  N.  Y.  287, 
75  Am.  Dec.  404;  Waters  v.  Mattingley,  1  Bibb 
(Ky.)  244.  4  Am.  Dec.  631;  French  v.  Vining, 
102  Mass.  132.  3  Am.  Rep.  440;  Cecil  v.  Spur- 
ger.  32  Mo.  462,  82  Am.  Dec.  140;  Grigsby  v. 
Stapleton.  94  Mo.  423,  Chase's  Cas.  258;  Had- 
ley  V.  Clinton  County  Importing  Co.,  13  Ohio 
St.  502,  82  Am.  Dec.  454;  Paddock  v.  Stro- 
bridge,  29  Vt.  470;  Graham  v.  Stiles,  38  Vt. 
578;  Maynard  v.  Maynard,  49  Vt.  297;  Card- 
well  V.  McClelland,  3  Sneed  (Tenn.)  150; 
Downing  v.  Dearborn,  77  Me.  457;  Dowling  v. 
Lawrence,  58  Wis.  282;  Brown  v.  Gray,  6 
Jones  L.  (N.  C.)  103,  72  Am.  Dec.  563;  Marsh 
V.  Webber,  13  Minn.  109;  Johnson  v.  Wal- 
lower,  18  Minn.  288;  Patterson  v.  Kirkland, 
34   Miss.   423. 

Compare,  however.  Hill  v.  Balls,  2  Hurl.  & 
N.  299;  Paul  v.  Hadley.  23  Barb.  (N.  Y.j  521; 
Beninger  v.  Corwin,   24  N.  J.  Law,  257. 

In  a  North  Carolina  case  in  which  an  ac- 
tion of  deceit  was  brought  against  the  seller 
of  an  unsound  slave,  Pearson.  C.  J.,  stated 
the  law  as  follow^s:  "In  the  sale  of  a  chat- 
tel, the  rule  of  our  law  is  caveat  emptor, 
and  if  the  thing  be  unsound,  to  entitle  the 
purchaser  to  maintain  an  action  he  must 
prove  either  a  warranty  of  soundness  or  a 
deceit.  In  regard  to  deceit,  .the  distinction 
is,  where  the  unsoundness  is  patent,  that  is, 


such  as  may  be  discovered  by  the  exercise 
of  ordinary  diligence,  mere  silence  on  the 
part  of  the  vendor  is  not  sufficient  to  estab- 
lish the  deceit,  although  he  knows  of  the 
unsoundness,  because  the  thing  speaks  for 
itself,  and  it  is  the  folly  of  the  purchaser 
not  to  attend  to  it.  So  that  in  such  a  case 
he  will  not  be  heard  to  say  he  was  deceived, 
unless  the  vendor  made  a  false  statement,  or 
resorted  to  some  artifice,  in  order  to  prevent 
an  examination,  or  to  hide  the  unsoundnes.-=. 
so  as  to  make  the  examination  of  no  avail. 
Where  the  unsoundness  is  latent,  that  is, 
such  as  could  not  be  discovered  by  the  exer- 
cise of  ordinary  diligence,  mere  silence  on 
the  part  of  the  vendor  is  sufficient  to  estab- 
lish the  deceit,  provided  he  knows  of  the  un- 
soundness; for  as  the  thing  is  not  what  it 
appears  to  be,  and  diligence  does  not  enable 
the  purchaser  to  discover  Its  unsoundness, 
he  is  deceived  unless  the  fact  is  disclosed: 
so  that  in  such  a  case,  without  what  the  law 
considers  laches  on  the  part  of  the  pur- 
chaser, the  deceit  is  accomplished  by  the 
suppressio  veri."  Brown  v.  Gray,  6  Jones  L. 
(N.  C.)   103,  72  Am.  Dec.  563. 

5.  Baglehale  v.  Walters.  3  Camp.  154: 
Ward  V.  Hobbs.  3  Q.  B.  Div.  150,  4  App.  Cas. 
13;  West  v.  Anderson,  9  Conn.  107,  21  Am. 
Dec.  737;  Whitney  v.  Boardman,  118  Mass. 
242. 

6.  Grigsby  v.  Stapleton,  94  Mo.  423.  Chase's 
Cas.  258;  Jeffrey  v.  Bigelow.  13  Wend.  (N.  Y.) 
518,  28  Am.  Dec.  476;  Badger  v.  Nicholls,  28 
Law  T.  (N.  S.)  441;  Mullett  v.  Mason,  L.  R.  1 
C.  P.  559.  Compare  Ward  V.  Hobbs,  3  Q.  B. 
Div.  150,  4  App.  Cas.  13. 

7.  Paddock  v.  Strobridge,  29  Vt.  470. 

8.  Hadley  v.  Clinton  County  Importing 
Co.,  13  Ohio  St.  502.  82  Am.  Dec.  454. 

9.  Van    Bracklin   v.    Fonda,    12   Johns.    (N. 


§  5 


NONDISCLOSURE  AND  CONCEALMENT. 


887 


the  fact  that  poison  has  been  spilled  upon  it;^°  to  the  sale  of  commercial  paper 
without  disclosing  the  fact  that  the  maker  has  failed  and  is  insolvent/^  and  in  many 
other  cases. 

The  general  rule  that  failure  of  a  party  to  a  sale  or  other  contract  to  disclose 
facts  Icnown  to  him  and  not  known  to  the  other  party  does  not  amount  to  fraud  does 
not  apply  where  the  party,  instead  of  merely  remaining  silent,  says  or  does  any- 
thing to  mislead  the  other  party,  or  to  induce  him  to  forego  making  inquiry  or 
examination  which  would  result  in  discovery  of  the  facts,  or  to  prevent  an  inquiry 
or  examination  which  would  result  in  such  discovery.^^  Nor  does  the  general 
rule  apply  where  a  partial  statement  of  facts  is  made,  which,  although  no  fact  stated 
is  untrue  in  itself,  is  rendered  false  or  misleading  as  a  whole  by  the  intentional 
suppression  or  nondisclosure  of  other  facts.  This  is  expressed  in  the  maxim,  sup- 
pressio  veri,  suggestio  falsi, —  "a  suppression  of  the  truth  may  amount  to  a  sugges- 
tion of  falsehood."^^  "Mere  silence  is  quite  different  from  concealment.  Aliud 
est  iacere,  aliud  celare, — a  suppression  of  the  truth  may  amount  to  a  suggestion 
of  falsehood.  And  if,  with  intent  to  deceive,  either  party  to  a  contract  of  sale 
conceals  or  suppresses  a  material  fact  which  he  is  in  good  faith  bound  to  disclose, 
this  is  evidence  of,  and  equivalent  to  a  false  representation,  because  the  conceal- 
ment or  suppression  is,  in  effect,  a  representation  that  what  is  disclosed  is  the  whole 
truth.  The  gist  of  the  action  is  fraudulently  producing  a  false  impression  upon 
the  mind  of  the  other  party,  and  if  this  result  is  accomplished,  it  is  unimportant 
whether  the  means  of  accomplishing  it  are  words  or  acts  of  the  defendant,  or  his 


Y.)  468,  7  Am.  Dec.  339;  Moses  v.  Mead,  1 
Denio  (N.  Y.)  378,  43  Am.  Dec.  676;  Hoe  v. 
Sanborn,  21  N.  Y.  552,  78  Am.  Dec.  163;  Em- 
erson V.  Brigham,  10  Mass.  197,  6  Am.  Dec. 
109;  French  v.  Vining,  102  Mass.  132,  3  Am. 
Rep.  440. 

10.  French  v.  Vining,  102  Mass.  132,  3  Am. 
Rep.   440. 

11.  Brown  v.  Montgomery,  20  N.  Y.  287,  75 
Am.  Dec.  404;  Gordon  v.  Irvine,  105  Ga.  144. 

12.  Udell  V.  Atherton,  7  Hurl.  &  N.  172; 
Laidlaw  v.  Organ,  2  Wheat.  (U.  S.)  178; 
Stewart  v.  Wyoming  Cattle  Ranche  Co.,  128 
U.  S.  383,  Erwin's  Cas.  430;  Henderson  v. 
Henshall  (C.  C.  A.)  54  Fed.  320;  Hadley  v. 
Clinton  Importing  Co.,  13  Ohio  St.  502,  82 
Am.  Dec.  454;  Chisolm  v.  Gadsden,  1  Strobh. 
L.  (S.  C.)  220,  47  Am.  Dec.  550;  Bowman  v. 
Bates,  2  Bibb  (Ky.)  47.  4  Am.  Dec.  677; 
Croyle  v.  Moses,  90  Pa.  250,  35  Am.  Rep.  654; 
Matthews  v.  Bliss,  22  Pick.  (Mass.j  48;  Ny- 
sewander  v.  Lowman.  124  Ind.  584;  Firestone 
V.  Werner,  1  Ind.  App.  293;  Kenner  v.  Hard- 
ing, 85  111.  264,  28  Am.  Rep.  615. 

The  purchaser  of  land  is  guilty  of  fraud 
where,  instead  of  merely  remaining  silent 
as  to  the  existence  of  a  mine  or  other  facts 
which  he  has  discovered,  he  prevents  the 
agent  of  the  vendor  from  giving  informa- 
tion thereof,  and  resorts  to  artifice  to  conceal 
the  facts  from  the  vendor — Bowman  v.  Bates, 
2   Bibb   (Ky.)    47,   4  Am.  Dec.   677. 

Directing  an  investigation  at  a  place  where 
it  is  known  that  information  cannot  be  ob- 
tained— Chisolm  V.  Gadsden,  1  Strobh.  L.  (S. 
C.)    220.   47  Am.  Dec.   550. 

13.  Stewart  v.  Wyoming  Cattle  Ranche 
Co.,  128  U.  S.  383,  Erwin's  Cas.  430.  See,  also, 
Corbett  v.  Brown,  8  Bing.  33;  Central  Ry. 
Co.  V.  Kisch,  L.  R.  2  H.  L.  99;  Peek  v.  Gurney, 
L.  R.  6  H.  L,.  377;  Rhode  v.  Alley.  27  Tex.  443; 
Mitchell  V.  McDougall,  62  111.  501;  Howard  v. 


Gould,  28  Vt.  523,  67  Am.  Dec.  728;  Mallory  v. 
Leach,  35  Vt.  156,  82  Am.  Dec.  625;  Bowman 
V.  Bates,  2  Bibb  (Ky.)  47,  4  Am.  Dec.  677; 
Atwood  V.  Chapman,  68  Me.  38,  28  Am.  Rep. 
5;  George  v.  Johnson,  6  Humph.  (Tenn.)  36, 
44  Am.  Dec.  288;  Newell  v.  Randall,  32  Minn. 
171,  50  Am.  Rep.  562;  Kidney  v.  Stoddard,  7 
Mete.  (Mass.)  252;  Burns  v.  Dockray,  156 
Mass.  135;  Coles  v.  Kennedy,  81  Iowa,  360,  25 
Am.  St.  Rep.  503;  Lomerson  v.  Johnston,  47 
N.  J.  Eq.  312;  Busch  v.  Wilcox,  82  Mich.  315. 

Where  a  person  desiring  credit,  being' 
asked  "how  he  stood,"  correctly  stated  his 
means,  but  was  silent  as  to  the  fact  that  he 
owed  two-thirds  as  much  as  his  capital,  it 
was  held  that  there  was  a  false  and  fraudu- 
lent representation — Newell  v.  Randall,  32 
Minn.  171,  50  Am.  Rep.  562.  And  see  Brown- 
ing v.  National  Capital  Bank,  13  App.  D.  C.  1. 

Representation  by  the  vendor  of  land 
which  had  been  set  off  to  him  on  a  .iudg- 
ment  execution,  that  his  title  was  good, 
without  disclosing  the  fact  that  a  petition 
to  reverse  the  judgment  was  pending — At- 
wood v.  Chapman,  68  Me.  38,  28  Am.  Rep.  5. 

Statement  that  the  title  of  land  is  good, 
without  disclosing  the  insanity  of  a  person 
affecting  the  title — Burns  v.  Dockray,  156 
Mass.  135. 

Representation  by  the  seller  that  a  horse 
has  the  distemper,  witliout  disclosing  the 
fact,  known  to  him,  that  it  also  has  the  glan- 
ders— George  v.  Johnson,  6  Humph.  (Tenn.) 
36,  44  Am.  Dec.  2SS;  Howard  v.  Gould,  28  Vt. 
523,  67  Am.  Dec.  728. 

Representation  by  the  purchaser  of  stock 
in  a  corporation  from  one  who  confides  in  his 
knowledge,  that  a  large  assessment  is  about 
to  be  levied  upon  the  stock,  without  disclos- 
ing other  facts  enhancing  the  value  of  the 
stock — Mallory  v.  Leach,  35  Vt.  156,  82  Am. 
Dec.   625. 


888 


DECEIT. 


§7A 


concealment  or  suppression  of  material  facts  not  equally  within  the  knowledge  or 
reach  of  the  plaintiff."^* 

If  a  purchaser  of  real  or  personal  property  makes  inquiry  of  the  seller  as  to 
facts  within  the  seller's  knowledge,  the  seller  must  either  decline  to  give  any  an- 
swer and  thus  let  the  purchaser  know  that  he  must  rely  on  his  own  examination  and 
judgment  and  take  all  risks,  or  else  he  must  disclose  the  truth  and  the  whole  truth. 
If  he  expresses  or  intimates  doubt  or  ignorance  as  to  facts  which  he  knows,  or  if 
he  discloses  a  part  of  the  truth  only  and  suppresses  the  rest,  and  the  purchaser  is 
thereby  deceived,  it  is  deceit.^^ 

As  we  shall  hereafter  see,  knowledge  that  a  representation  is  false  and  an  intent 
to  deceive,  or  what  is  equivalent  thereto,  is  necessary  to  support  an  action  of  deceit, 
and  this  applies  where  a  failure  to  disclose  facts  is  relied  upon  as  constituting  fraud. 
Therefore,  one  is  not  liable  for  failure  to  disclose  facts  in  the  absence  of  knowledge 
and  an  intent  to  deceive.^® 

§  6.  The  representation  must  he  false. — In  order  that  a  representation  may 
constitute  fraud  it  must  be  in  fact  false,  and  the  plaintiff  must  prove  this.  If  it 
is  in  fact  true  it  cannot  be  fraudulent,  although  it  may  have  been  made  in  the  be- 
lief that  it  was  false  and  with  intent  to  deceive.^^  An  action  vnll  lie,  however,  for 
a  representation  which  is  literally  true,  if  it  is  calculated  and  intended  to  convey 
a  false  impression,  and  does  convey  such  an  impression.^®  "In  order  to  establish  a 
case  of  false  representation,  it  is  not  necessary  that  something  which  is  false  should 
have  been  stated  as  if  it  were  true.  If  the  presentation  of  that  which  is  true  cre- 
ates an  impression  which  is  false,  it  is,  as  to  him  who  seeing  the  misapprehension 
seeks  to  proiit  by  it,  a  case  of  false  representation."^*  On  the  other  hand,  if  a  state- 
ment operates  as  an  estoppel  so  as  to  make  it  true  in  law  it  is  not  false. ^°  As  we 
have  seen,  a  statement  which  is  literally  true  as  far  as  it  goes  is  rendered  false  and 
misleading  by  the  suppression  of  other  facts.^^ 

Representations  subsequently  discovered  to  he  untrue. — It  has  been  held  that 
where  a  false  representation  is  innocently  made  in  the  belief  that  it  is  true,  but 
the  person  making  it  discovers  that  it  is  false  before  it  is  acted  upon  by  the  person 
to  whom  it  was  made,  and  suffers  the  latter  to  continue  in  error  and  act  upon  the 
representation,  a  court  of  equity  will  treat  the  representation  as  fraudulent  from 
the  time  the  mistake  is  discovered,  for  the  purpose  of  setting  aside  a  deed.^^  There 
seems  to  be  no  good  reason  why  the  same  rule  should  not  apply  in  an  action  of  de- 
ceit.^^ 

§  7.  Knowledge  that  representation  is  false,  and  intent  to  deceive.  A.  Knowl- 
edge in  general. — Eelief  is  frequently  granted  in  equity,  and  under  some  circum- 


14.  Stewart  v.  Wyoming-  Cattle  Ranche 
Co.,  128  U.  S.  383.  Erwin's  Cas.   430. 

15.  Baker  v.  Seaborn,  1  Swan  (Tenn.)  54, 
55  Am.  Dec.  724;  Howard  v.  Gould.  28  Vt. 
523,  67  Am.  Dec.  728;  James  v.  Crosthwait,  97 
Ga.  673. 

1«.  Klrtley's  Adm'x  v.  Shinkle.  24  Ky.  L. 
R.  608,  69  S.  "SV.  723.     And  see  post,  §  7. 

17.  Arkwright  v.  Newbold,  17  Ch.  Div.  301; 
Richardson  v.  Smith.  1  Camp.  277;  Potts  v. 
Chapin.  133  Mass.  276;  Allison  v.  Jack,  76 
Iowa,  205;  I.unn  v.  Shermer,  93  N.  C.  164; 
Gros.lean  v.  Galloway,  82  App.  Div.  (N.  T.) 
380;  Hart  v.  Waldo   (Ga.)   43  S.  E.  998. 

Evidence  held  insufficient  to  show  that  an 
agrreement  alleged  to  have  been  concealed 
frrim  plaintiff  was  in  existence  at  the  time — 
Willock   V.   Dilworth,    204   Pa.    492. 

I.S.  Central  Ry.  Co.  v.  Kisch.  L.  R.  2  H.  L. 
90;  Aaron's  Reefs  v.  Twiss  [1896]  App.  Cas. 
273i  Stewart  v.  Wyoming  Ranche  Co.,  128  U. 


S.  383,  Erwin's  Cas.  430;  Howard  v.  Gould, 
28  Vt.  523.  67  Am.  Dec.  523;  Busch  v.  Wilcox, 
82  Mich.  315. 

19.  Lomerson  v.  Johnston,  47  N.  J.  Eq.  312, 
24  Am.  St.  Rep.  410. 

20.  Hart  v.  Waldo   (Ga.)  43  S.  E.  998. 

21.  Ante,  §  5. 

22.  Reynell  v.  Sprye.  1  De  Gex.  M.  &  G. 
660,  709.  The  same  is  true  of  a  representa- 
tion which,  although  true  when  made,  ceases 
to  be  true  by  the  happening  of  some  event 
within  the  knowledge  of  the  party  making 
it — Traill  v.  Baring,  4  De  Gex,  J.  &  S.  318. 

In  a  late  Michigan  case  it  was  held  that 
if,  after  a  merchant  has  made  a  statement 
to  a  commercial  agency  as  to  his  financial 
condition,  there  is  a  change  for  the  worse 
therein,  it  is  his  duty  to  notify  the  agency — 
Mooney  v.  Davis,  75  Mich.  188,  13  Am.  St. 
Rep.  425.     Morse,  J.,  dissented. 

23.  Pollock,  Torts  (Webb's  Ed.)  366. 


§  7A 


KNOWLEDGE  AND  INTENT. 


889 


stances  it  has  been  held  that  contracts  may  be  avoided  at  law,  because  of  false  rep- 
resentations made  in  the  honest  belief  that  they  were  true  and  without  any  intent  to 
deceive,^*  and  an  action  ex  contractu  to  recover  damages  for  breach  of  a  warranty, 
express  or  implied,  may  be  maintained  without  alleging  or  proving  that  the  de- 
fendant knew  that  the  warranty  was  false.^''  But  it  is  very  different  where  a  false 
representation  is  treated  as  a  tort,  and  made  the  ground  of  an  action  of  deceit.  In 
such  a  case  the  law  requires  that  there  shall  have  been  some  degree  of  moral  wrong, 
and  something  more  than  mere  negligence.  There  must  have  been  actual  fraud. 
It  is  sometimes  said  that  an  action  of  deceit  will  not  lie  for  a  false  representation 
imless  it  was  made  by  the  defendant  with  knowledge  that  it  was  false  and  with 
intent  to  deceive,  but,  as  we  shall  hereafter  see,-^  this  is  not  strictly  true.  It  is 
true,  however,  that  the  representation  must  have  been  made,  either  with  actual 
knowledge  that  it  was  false,  or  under  circumstances  which  are  equivalent  to  knowl- 
edge in  the  contemplation  of  law.  In  this  sense,  knowledge  of  the  falsity  of  the 
representation  is  essential,  and  must  be  both  alleged  and  proved.^'^  This  is  true, 
not  only  where  a  person  is  induced  to  enter  into  a  contract  with  another  by  the 
false  representations  of  a  third  person  who  is  not  interested  in  the  transaction,  as 
in  the  case  of  false  representations  as  to  the  credit  of  another,  but  also  where  one 
of  the  parties  to  a  contract  is  deceived  by  the  false  representations  of  the  other 
party.^* 


34.  Davis  V.  Heard,  44  Miss.  50;  Snyder  v. 
Flndley,  1  N.  J.  Law,  78,  1  Am.  Dec.  193;  East 
V.  Matheny,  1  A.  K.  Marsh.  (Ky.)  192,  10  Am. 
Dec.  721;  Tyson  v.  Passmore,  2  Pa.  122,  44 
Am.  Dec.  181;  Woodruff  v.  Garner,  27  Ind.  4, 
89  Am.  Dec.  477.  And  see  Hammon,  Cont. 
I  106. 

25.  As  to  the  distinction  between  war- 
ranty and  deceit  in  this  respect,  see  Pollocli, 
Torts  (Webb's  Ed.)  372;  Mahurin  v.  Harding, 
28  N.  H.  128,  59  Am.  Dec.  401;  Kingsbury  v. 
Taylor,  29  Me.  508,  50  Am.  Dec.  607;  Erie  City 
Iron  Works  v.  Barber,  106  Pa.  125,  51  Am. 
Rep.  508;  Bartholomew  v.  Bushnell,  20  Conn. 
271,  52  Am.  Dec.   338. 

26.  See  infra,  this  section. 

27.  Taylor  v.  Ashton,  11  Mees.  &  W.  401; 
Derry  v.  Peek,  14  App.  Cas.  337,  Chase's  Cas. 
249;  Emerson  v.  Brigham,  10  Mass.  197,  6  Am. 
Dec.  109;  Tryon  v.  Whitmarsh,  1  Mete.  (Mass.) 
1,  35  Am.  Dec.  339;  Cole  v.  Cassidy,  138  Mass. 
437,  52  Am.  Rep.  284;  Nash  v.  Minnesota  Title 
Ins.  &  Trust  Co.,  163  Mass.  574,  47  Am.  St. 
Rep.  489;  Kountze  v.  Kennedy,  147  N.  Y.  124, 
49  Am.  St.  Rep.  651;  Meyer  v.  Amidon,  45  N. 
T.  169;  Salisbury  v.  Howe,  87  N.  T.  128; 
Unckles  v.  Hentz,  19  App.  Div.  (N.  T.)  165; 
Cowley  V.  Smyth,  46  N.  J.  Law,  380,  50  Am. 
Rep.  432,  Erwin's  Cas.  405;  Boddy  v.  Henry. 
113  Iowa,  462;  Bartholomev/  v.  Bentley,  15 
Ohio,  659,  45  Am.  Dec.  596;  Lamm  v.  Port  De- 
posit Homestead  Ass'n,  49  Md.  233,  33  Am. 
Rep.  246;  Erie  City  Iron  "V^^'orks  v.  Barber,  106 
Pa.  125,  51  Am.  Rep.  508;  Hexter  v.  Bast,  125 
Pa.  52.  11  Am.  St.  Rep.  874;  Griswold  v.  Geb- 
bie,  126  Pa.  353,  12  Am.  St.  Rep.  878;  Ma- 
hurin V.  Harding,  28  N.  H.  128,  59  Am.  Dec. 
401;  Bartholomew  v.  Bushnell,  20  Conn.  271, 
52  Am.  Dec.  338;  Elwell  v.  Russell,  71  Conn. 
462;  Munro  v.  Gairdner,  3  Brev.  (S.  C.)  31,  5 
Am.  Dec.  531;  Cooley  v.  King,  113  Ga.  1163; 
Hiner  v.  Richter.  51  111.  299;  Merwin  v.  Ar- 
buckle,  81  111.  501;  Holdonj  v.  Ayer,  110  111. 
448;  Hanger  v.  Evins,  38  Ark.  334;  Anderson 
V.  McPike,  86  Mo.  293;  Dunn  v.  White.  63  Mo. 
181;   Hutchinson   v.   Gorman   (Ark.)    73   S.   W. 


793;  Live  Stock  Remedy  Co.  v.  White,  90  Mo. 
App.  498;  Grosjean  v.  Galloway,  82  App.  Div. 
(N.  Y.)  380;  Warfield  v.  Clark,  118  Iowa,  69; 
Summers  v.  Metropolitan  Life  Ins.  Co.,  90  Mo. 
App.  691.  But  see  Hitchcock  v.  Gothenburg 
Water  Power  Co.    (Neb.)    95  N.  W.  638. 

And  this  applies  equally  to  concealment  of 
facts — Kirtley's  Adm'x  v.  Shinkle,  24  Ky.  L. 
Rep.   608,   69  S.  W.  723. 

28.  The  rule  has  been  applied  to  the  fol- 
lowing representations,  among  others:  False 
representations  as  to  the  solvency  or  credit 
of  another — Haycraft  v.  Creasy,  2  East,  92; 
Tryon  v.  Whitmarsh,  1  Mete.  (Mass.)  1,  35 
Am.  Dec.  339;  Young  v.  Covell,  8  Johns.  (N. 
Y.)  19,  5  Am.  Dec.  316;  Marsh  v.  Falker,  40  N. 
Y.  562;  Lord  v.  Colley,  6  N.  H.  99,  25  Am. 
Dec.  445;  Fooks  v.  Waples,  1  Harr.  (Del.) 
131,  25  Am.  Dec.  64;  Einstein  v.  Marshall,  58 
Ala.  153,  29  Am.  Rep.  729;  Tift  v.  Harden,  22 
Ga.  623,  68  Am.  Dec.  512. 

Representations  by  directors  of  a  corpora- 
tion or  other  persons,  inducing  persons  to 
subscribe  for  or  purchase  its  stock  or  bonds 
— Taylor  v.  Ashton,  11  Mees.  &  W.  401;  Derry 
V.  Peek,  14  App.  Cas.  337,  Chase's  Cas.  249; 
Cole  v.  Cassidy,  138  Mass.  437,  52  Am.  Rep. 
284;  Kountze  v.  Kennedy,  147  N.  Y.  124,  49 
Am.  St.  Rep.  651;  Wakeman  v.  Dalley,  51  N. 
Y.  27,  10  Am.  Rep.  551;  Morgan  v.  Skiddy,  62 
N.  Y.  319;  Utley  v.  Hill,  155  Mo.  232,  78  Am. 
St.  Rep.  569.  Compare  other  cases  cited  in  3 
Clark  &  M.  Corp.  p.  2265. 

Representation  by  a  third  person  as  to 
title  or  value  of  mortgaged  property  induc- 
ing others  to  purchase  bonds  of  a  corporation 
secured  by  the  mortgage — Nash  v.  Minnesota 
Title  Ins.  &  Trust  Co.,  163  Mass.  574,  47  Am. 
St.  Rep.  489;  Kountze  v.  Kennedy,  147  N.  T. 
124,  49  Am.  St.  Rep.  651. 

Representations  by  the  directors  of  a  bank 
or  others  as  to  Its  condition.  Inducing  per- 
sons to  make  or  leave  deposits — Cole  v.  Cas- 
sidy, 138  Mass.  437,  52  Am.  Rep.  284;  Cowley 
V.  Smyth,  46  N.  J.  Law,  380,  50  Am.  Rep.  432, 
Erwin's  Cas.  405. 


890 


DECEIT. 


^  7B 


(§  7)  B.  Negligence.  Unreasonable  ielief. — In  England,  aiter  some  difference 
of  opinion  among  the  judges,  it  has  been  settled  by  a  decision  of  the  House  of  Lords.^^ 
that  an  action  of  deceit  will  not  lie  for  a  false  representation,  if  it  was  made  by  the 
defendant  in  the  honest  belief  that  it  was  true,  even  though  his  belief  may  not 
have  been  founded  on  such  grounds  as  would  produce  such  belief  in  the  mind  of  a 
prudent  and  competent  man.  In  other  words,  the  negligence  of  the  defendant 
in  coming  to  an  honest  belief,  or  the  unreasonableness  of  such  belief,  is  no  ground 
for  holding  him  liable,  as  a  matter  of  law,  in  an  action  of  deceit,  although  it  is  evi- 
dence to  be  considered  in  determining,  as  a  fact,  whether  he  entertained  such  a  be- 

lief.«° 

In  this  country  some  of  the  courts  have  followed  the  decision  of  the  House  of 
Lords,  or  adopted  the  same  doctrine  on  the  authority  of  earlier  cases."  Other 
courts,  however,  have  considered  that  the  moral  wrong  is  sufficient  to  support  an 
action  of  deceit  where  a  person  makes,  as  of  his  own  knowledge,  a  false  repre- 
sentation of  a  fact  susceptible  of  actual  knowledge,  when  he  does  not  know  it  to  be 
true,  although  he  may  believe  it  to  be  true,  and  may  have  no  intent  to  de- 
ceive. Until  recently  this  was  understood  to  be  the  settled  doctrine  in  Mas- 
sachusetts, not  only  with  respect  to  representations  made  by  one  of  the  par- 
ties to  a  contract  inducing  the  other  to  enter  into  it,  but  also  with  respect  to 
representations  by  third  persons.  "It  is  well  settled  in  this  Commonwealth," 
said  the  ]\Iassachusetts  court,  "that  the  charge  of  fraudulent  intent,  in  an  ac- 
tion for  deceit,  may  be  maintained  by  proof  of  a  statement  made,  as  of  the 
partes  own  Icnowledge,  which  is  false,  provided  the  thing  stated  is  not  merely  a 
matter  of  opinion,  estimate,  or  judgment,  but  is  susceptible  of  actual  Imowledge; 
and  in  such  case  it  is  not  necessary  to  make  any  further  proof  of  an  actual  intent 
to  deceive.  The  fraud  consists  in  stating  that  the  party  knows  the  thing  to  exist 
when  he  does  not  know  it  to  exist;  and  if  he  does  not  know  it  to  exist,  he  must 
ordinarily  be  deemed  to  know  that  he  does  not.  Forgetfulness  of  its  existence  after 
a  former  knowledge,  or  a  mere  belief  of  its  existence,  will  not  warrant  or  excuse 
a  statement  of  actual  knowledge.'"-"  There  are  decisions  to  substantially  the  same 
effect  in  some  of  the  other  states.''     In  a  later  Massachusetts  case,  however,  this 


Representations  by  the  seller  of  personal 
property,  or  by  his  agent,  or  by  a  third  per- 
son, as  to  the  title,  condition,  soundness,  etc. 
— Irwin  V.  Sherril,  Tayl.  (N.  C.)  1.1  Am.  Dec. 
574;  Erie  City  Iron  Works  v.  Barber,  106  Pa. 
125,  51  Am.  Rep.  508;  Staines  v.  Shore.  16  Pa. 
200.  55  Am.  Dec.  492;  Emerson  v.  Brigham.  10 
Mass.  197,  6  Am.  Dec.  109;  French  v.  Vining:. 
102  Mass.  132.  3  Am.  Rep.  440;  Bartholomew 
V.  Bushnell.  20  Conn.  271,  52  Am.  Dec.  338; 
Mahurin  v.  Harding.  28  N.  H.  128,  59  Am.  Dec. 
401;  Campbell  v.  Hillman.  15  B.  Mon.  (Ky.) 
508,  61  ^m.  Dec.  195;  Kingsbury  v.  Taylor.  29 
Me.  508.  50  Am.  Dec.  607;  Lewark  v.  Carter, 
117  Tnd.  206.  10  Am.  St.  Rep.  40. 

Representations  by  the  vendor  of  real 
property,  or  his  agent,  or  a  third  person,  as 
to  the  title,  value,  condition,  number  of  acres, 
etc. — Williams  v.  McFadden,  23  Fla.  143.  11 
Am.  St.  Rep.  345;  Griswold  v.  Gebbie,  126  Pa. 
353,  12  Am.  St.  Rep.  878. 

29.  Derry  v.  Peek,  14  App.  Cas.  337, 
Chase's  Cas.  249. 

30.  Pollock.  Torts  (Webb's  Ed.)  362.  363; 
Derry  v.  Peek.  14  App.  Cas.  337.  Chase's  Cas. 
249;  Lord  Cranworth  In  Western  Bank  v. 
Addie.  L.  R.  1  Sc.  145.  168;  Taylor  v.  Ashton, 
11  Mees.  &  W.  401;  Glnsier  v.  Rolls.  42  Ch. 
Div.   436;   Angus  v.   Clifford    [1891]    2   Ch.   449; 


Low  v.   Bouverie    [1891]    3   Ch.   82;   Le   Llevre 
V.  Gould   [1893]  1  Q.  B.   491. 

31.  Cowley  v.  Smyth,  46  N.  J.  Law,  380,  50 
Am.  Rep.  432,  Erwin's  Cas.  405;  Townsend  v. 
Felthousen,  156  N.  Y.  618;  Kountze  v.  Ken- 
nedy. 147  N.  Y.  124,  49  Am.  St.  Rep.  651;  Gris- 
wold V.  Gebbie.  126  Pa.  353,  12  Am.  St.  Rep. 
878;  Boddy  v.  Henry,  113  Iowa,  462;  Allison 
V.  Jack.  76  Iowa,  205;  Pieratt  v.  Young,  20 
Ky.  L.  R.  1815,  49  S.  W.  964. 

32.  Chatham  Furnace  Co.  v.  Moffatt.  147 
Mass.  403.  9  Am.  St.  Rep.  727.  Burdick's  Cas. 
237.  Erwin's  Cas.  437;  Litchfield  v.  Hutchin- 
son,  117  Mass.   195,  Chase's  Cas.  257. 

33.  Munroe  v.  Pritchett.  16  Ala.  785,  50 
Am.  Dec.  203;  Foster  v.  Kennedy's  Adm'r,  38 
Ala.  359,  81  Am.  Dec.  56;  Cabot  v.  Christie.  42 
Vt.  121.  1  Am.  Rep.  313;  BrAley  v.  Powers,  92 
Me.  203;  Bird  v.  Kleiner.  41  Wis.  134;  Davis 
v.  Nuzum,  72  Wis.  439;  Krause  v.  Busacker. 
105  Wis.  350;  West  v.  Wright,  98  Jnd.  335; 
Kirkpatrick  v.  Reeves,  121  Ind.  280;  Menden- 
hall  V.  Steivart,  18  Ind.  App.  262;  Bullitt  v. 
Farrar,  42  Minn.  8.  18  Am.  St.  Rep.  4S5:  He- 
din  V.  Minneapolis  Med.  &  Surg.  Inst.,  62 
Minn.  146.  54  Am.  St.  Rep.  628;  Holcomb  v. 
Noble,  69  Mich.  396;  Totten  v.  Burhans.  91 
Mich.  495.  See.  also.  Lahay  v.  City  Nat.  Bank, 
15  Colo.  339,  25  Pac.  704.  22  Am.  St.  Rep.   407. 


S  7C 


KNOWLEDGE  AND  INTENT. 


891 


doctrine  has  in  effect  been  limited  to  representations  made  by  one  of  the  parties 
to  a  contract  to  induce  the  other  party  to  enter  into  it,  and  it  has  been  held  that 
where  one  merely  answers  inquiries  of  a  stranger  or  volunteers  information  in  a 
matter  which  does  not  concern  him,  although  he  may  know  that  his  statements 
will  be  acted  upon  by  the  person  or  persons  to  whom  they  are  made,  he  is  guilty 
of  no  breach  of  duty  if  he  makes  the  statements  honestly  to  the  best  of  his  ability, 
and  cannot  be  held  liable  in  an  action  of  deceit  because  of  ignorance  or  stupidity.^* 

In  this  country  some  of  the  courts  hold  that  a  person  may  be  in  such  a  relation 
to  the  subject-matter  of  a  representation  and  to  the  person  or  persons  to  whom 
it  is  made,  as  to  impose  upon  him  a  duty  to  know  whether  the  representation  is  true, 
and  that  in  such  a  case  an  action  of  deceit  may  be  maintained  against  him  if  the 
representation  was  false,  and  he  could  have  known  that  it  was  so,  although  he  may 
have  believed  it  to  be  true  and  may  have  had  no  fraudulent  intent.  This  doctrine 
has  been  applied,  for  example,  to  false  statements  issued  by  directors  of  banks,  and 
relied  upon  by  depositors,  or  purchasers  of  stock,  on  the  ground  that  their  relation 
to  the  bank  and  to  the  public  is  such  as  to  impose  a  duty  to  know  the  truth  of  state- 
ments as  to  the  condition  of  the  bank  which  they  may  publish.^^  Other  courts, 
however,  do  not  recognize  this  doctrine,  but  require  that  the  representations  shall 
be  made  fraudulently,  or  at  least  recklessly,  in  order  that  an  action  of  deceit  may  be 
maintained.^®  This  is  the  better  view.  If  the  directors  of  a  bank,  or  others  owing 
a  duty  to  ascertain  the  truth  of  representations  which  they  make  to  the  public,  vio- 
late this  duty  by  making  representations  in  good  faith  but  without  having  used 
due  care  to  ascertain  their  truth,  an  action  against  them  by  persons  who  are  dam- 
aged by  relying  on  the  representations  may  and  should  be  based  on  the  ground  of 
negligence,  and  not  on  the  ground  of  deceit.*'' 

(§7)  C.  Reckless  ignorance. — Not  only  in  this  country,  but  in  England  as 
well,  reckless  ignorance  of  one  who  makes  a  false  statement  of  fact  may  be  equivalent 
to  knowledge  that  it  is  false.  "If  a  man  states  as  fact  what  he  does  not  believe  to 
be  fact,  he  speaks  at  his  peril;  and  this  whether  he  knows  the  contrary  to  be  true 
or  has  no  knowledge  of  the  matter  at  all,  for  the  pretence  of  having  certain  in- 
formation which  he  has  not  is  itself  a  deceit,'*'^ — and  in  such  a  case  he  is  just  as 
much  liable  in  an  action  of  deceit  as  if  he  knew  that  his  statement  was  false.^' 
"If  persons  take  upon  themselves,"  said  Lord  Cairns  in  a  leading  English  case, 
"to  make  assertions  as  to  which  they  are  ignorant  whether  they  are  true  or  untrue, 
they  must,  in  a  civil  point  of  view,  be  held  as  responsible  as  if  they  had  asserted 


34.  Nash  v.  Minnesota  Title  Ins.  &  Trust 
Co.,  163  Mass.  574,   47  Am.  St.  Rep.   489. 

35.  Prewitt  V.  Trimble,  92  Ky.  176;  Seale 
V.  Baker,  70  Tex.  283.  8  Am.  St.  Rep.  592; 
Tate  V.  Bates,  118  N.  C.  287,  54  Am.  St.  Rep. 
719;  Solomon  v.  Bates,  118  N.  C.  311,  54  Am. 
St.  Rep.  725;  Houston  v.  Thornton,  122  N.  C. 
365.   65   Am.   St.   Rep.   699. 

36.  Derry  v.  Peek,  14  App.  Cas.  337, 
Chase's  Cas.  249;  Cowley  v.  Smyth.  46  N.  J. 
Lav/,  380,  50  Am.  Rep.  432,  Erwin's  Cas.  405; 
Cole  V.  Cassidy,  138  Mass.  437,  52  Am.  Rep. 
284;  Wakeman  v.  Dalley,  51  N.  T.  27,  10  Am. 
Rep.  551:  Kountze  v.  Kennedy,  147  N.  Y.  124, 
49  Am.  St.  Rep.  651;  Utley  v.  Hill,  155  Mo.  232, 
78  Am.  St.  Rep.  5G9. 

37.  See  Delano  v.  Case,  121  111.  247,  2  Am. 
St.  Rep.  81;  Houston  v.  Thornton,  122  N.  C. 
365,   65  Am.  St.   Rep.  699. 

38.  Pollock,  Torts   (Webb's  Ed.)   367. 

39.  Taylor  v.  Ashton,  11  Moes.  &  Vi.  401; 
Evans  v.  Edmonds,  13  C.  B.  777;  Derry  v. 
Peek,    14    App.    Cas.    337,    Chase's    Cas.    249; 


Ang-us  V.  Clifford  [1891]  2  Ch.  449;  Cooper  v. 
Schlesing-er,  111  U.  S.  148;  Bennett  v.  Jud- 
son,  21  N.  T.  238;  Hadcock  v.  Osmer,  153  N. 
Y.  604,  Erwin's  Cas.  440;  Kountze  v.  Ken- 
nedy, 147  N.  Y.  124,  49  Am.  St.  Rep.  651; 
Frank  v.  Bradley  &  C.  Co.,  42  App.  Dlv.  (N. 
Y.)  178;  Lahay  v.  City  Nat.  Bank,  15  Colo. 
339,  25  Pac.  704,  22  Am.  St.  Rep.  407;  Aetna 
Ins.  Co.  V.  Reed,  33  Ohio  St.  283;  Hedin  v. 
Minneapolis  Med.  &  Surg-.  Inst.,  62  IMinn.  146, 
54  Am.  St.  Rep.  628;  Griswold  v.  Gebbie,  126 
Pa.  353,  12  Am.  St.  Rep.  878;  Scholfield  Gear 
&  Pulley  Co.  V.  Scholfield,  71  Conn.  1;  Dunn 
V.  White,  63  Mo.  181;  Dulaney  v.  Rogers,  64 
Mo.  201;  Caldwell  v.  Henry,  76  Mo.  254;  Chase 
V.  Rusk,  90  IMo.  App.  25;  Riley  v.  Bell  (Iowa) 
95  N.  W.   170;  Johnson  v.  Cate,   75  Vt.   100. 

Deceit  "will  lie  on  a  false  "warranty  though 
the  maker  did  not  know  of  its  falsity — Piche 
V.  Robbins,  24  R.  I.  325. 

Evidence  of  defendant's  knowledge  that 
horses  were  unsound  held  insufficient — Pos- 
tal V.  Cohn,   S3  App.  Div.   (N.  Y.)   27. 


892 


DECEIT. 


§  7E 


that  which  they  knew  to  he  untrue."**'  The  ignorance  referred  to  is  conscious 
ignorance,— the  state  of  mind  of  a  man  who  asserts  his  belief  in  a  fact  "when  ha 
is  conscious  that  he  knows  not  whether  it  be  true  or  false,  and  when  he  has  there- 
fore no  such  belief."*^ 

(§7)  D.  Intention  to  deceive. — In  order  that  an  action  of  deceit  may  be  main- 
tained for  false  representation,  the  representation  must  have  been  made  with  intent 
to  deceive,  and  it  must  therefore  have  been  made  with  intent  that  it  should  be  acted 
upon  by  the  person  to  whom  it  was  made.*'  But  it  is  not  always  necessary  to  prove 
by  direct  evidence  that  there  was  such  an  intent.  An  intent  to  deceive  is  to  be 
implied  if  a  false  representation  was  made  with  knowledge  of  its  falsity  or  reck- 
lessl}--,  and  if  the  circumstances  were  such  that  it  would  naturally  be  relied  upon 
and  have  the  effect  of  deceiving,  for  persons  are  presumed  to  intend  the  natural  and 
probable  consequence  of  their  volimtary  acts.** 

If  a  representation  is  made  with  knowledge  that  it  is  false,  or  recklessly,  and 
with  intent  that  it  shall  be  acted  upon,  it  is  no  defense,  in  an  action  of  deceit,  that 
the  defendant  did  not  intend  to  injure  the  plaintiff  or  to  obtain  any  gain  for  him- 
self,— or,  in  other  words,  it  is  no  defense  that  he  did  not  make  the  representation 
from  any  bad  motive.*'  "It  is  a  fraud  in  law  if  a  party  makes  representations  which 
he  knows  to  be  false,  and  injury  ensues,  although  the  motives  from  which  the  rep- 
resentations proceeded  may  not  have  been  bad."** 

(§7)  E.  Failure  to  disclose  facts. — The  rule  that  a  fraudulent  intent  is  neces- 
sary to  supvort  an  action  of  deceit  applies  where  a  failure  to  disclose  facts*"  is  relied 
upon  as  constituting  the  deceit,  as  well  as  in  the  case  of  false  representations  of  fact. 
An  action  on  an  implied  warranty  may  be  maintained  without  proof  of  fraud,  but 
an  action  of  deceit  cannot  be  maintained  because  of  a  failure  to  disclose  facts,  un- 
less it  is  alleged  and  proved  that  the  defendant  knew  the  facts  and  intended  to  de- 
ceive.**    An  intent  to  deceive  may  be  implied,  however,  if  it  appears  that  he  knew 


40.  Reese  River  Min.  Co.  v.  Smith,  L.  R.  4 
H.  L.  64,  79. 

41.  Lord  Herschell,  in  Derry  v.  Peek,  14 
App.  Cas.  337,  359,  Chase's  Cas.  249,  254. 

43.  Pollock,  Torts  (Webb's  Ed.)  355,  372; 
Munro  v.  Gairdner,  3  Brev.  (S.  C.)  31,  5  Am. 
Dec.  531;  Mahurin  v.  Harding-,  2S  N.  H.  128, 
59  Am.  Dec.  401;  Griswold  v.  Sabin,  51  N.  H. 
167,  12  Am.  Rep.  76;  Humphrey  v.  Merriam, 
32  Minn.  197;  Tonng  v.  Covell.  8  Johns.  (N. 
T.)  19,  5  Am.  Dec.  316;  Addington  v.  Allen. 
11  Vv'end.  (N.  Y.)  374;  Zabriskie  v.  Smith,  13 
N.  Y.  322,  64  Am.  Dec.  551;  Tucker  v.  "White, 
125  Mass.  344;  Thorp  v.  Smith.  18  Wash.  277, 
51  Pac.  3S1;  Terrell  v.  Bennet.  18  Ga.  404; 
Sims  V.  Eiland.  57  Miss.  83;  Holdom  v.  Ayer, 
110  111.  448;  Lebby  v.  Ahrens.  26  S.  C.  275; 
Clement.  Bane  &  Co.  v.  Swanson,  110  Iowa, 
106.    And  see  post,  §  8. 

44.  Foster  v.  Charles,  6  Bing-.  396;  Boyd's 
Ex'rs  V.  Browne.  6  Pa.  310,  Burdick's  Cas. 
242;  Cowley  v.  Smyth.  46  N.  J.  Law.  3S0.  50 
Am.  Rep.  432.  Erwin's  Cas.  405;  Collins  v. 
Denison.  12  Mete.  (Mass.)  549;  Whiting  v. 
Price,  169  aiass.  576,  61  Am.  St.  Rep.  307; 
Mnnro  v.  Gairdner.  3  Brev.  (S.  C.)  31,  5  Am. 
Dec.  531:  Humphrey  v.  Merriam,  32  Minn. 
197:  Claflin  v.  Commonwealth  Ins.  Co..  110  U. 
S.  81:  Judd  V.  Weber.  55  Conn.  267:  Endsley 
V.  Johns.  120  111.  469.  60  Am.  Rep.  572;  Hud- 
nut  V.  Gardner,   59  Mich.  341. 

4o.  Foster  v.  Charles,  7  Bing.  105;  Corbett 
V.  Brown.  8  Bing.  33;  Polhill  v.  Walter,  3 
Barn.  &  Ad.  114;  Langridge  v.  Levy,  2  Mees. 
&  W.  519,  4  Mees.  &  W.  337;  Boyd's  Ex'rs  v. 


Browne,  6  Pa.  310,  Burdick's  Cas.  242;  French 
V.  Vining,  102  Mass.  132.  3  Am.  Reo.  440; 
Whiting  V.  Price,  169  Mass.  576.  61  Am.  St. 
Rep.  307;  Hedin  v.  Minneapolis  Med.  &  Surg. 
Inst..  62  Minn.  146,  54  Am.  St.  Rep.  628. 

46.  Tindal,  C.  J.,  in  Foster  v.  Charlej,  7 
Bing.   105. 

"Willfully  to  tell  a  falsehood,  intending 
that  another  shall  act  upon  it  as  if  it  were 
the  truth,  may  well  be  termed  fraudulent, 
whatever  the  motive  which  induces  it, 
though  it  be  neither  gain  to  the  pers  n  mak- 
ing the  assertion  nor  injury  to  the  person  to 
whom  it  is  made" — Lord  Herschell,  in  Derry 
V.   Peek.    14   App.   Cas.    337,   Chase's   Cas.    249. 

"The  scienter  as  well  as  the  falsehood  be- 
ing proved,  proof  of  the  fraudulent  intent  is 
regarded  as  conclusive.  Evidence  that  the 
defendant  intended  no  fraud  will  not  be  re- 
ceived and  the  jury  will  be  instructed  to  find 
for  the  plaintiff,  though  they  should  be  of 
opinion  that  the  defendant  was  not  insti- 
gated by  a  corrupt  motive  of  gain  for  liim- 
self,  or  by  a  malicious  motive  of  injury  to 
the  plaintiff" — Depue,  J.,  in  Cowley  v.  Smvth, 
46  N.  J.  Law.  380,  50  Am.  Rep.  432. 

47.  Ante,  §  5. 

48.  Emerson  v.  Brigham,  10  Mass.  197,  6 
Am.  Dec.  109;  Wilde  v.  Gibson,  1  H.  L.  Cas. 
605;  Chisolm  v.  Gadsden.  1  Strobh.  L.  (S.  C.) 
220.  47  Am.  Dec.  550;  Hanson  v.  Edgerlv,  29 
X.  H.  343;  Poag  v.  Charlotte  Oil  &  Fert.  Co., 
61  S.  C.  190;  Cowan  v.  Sapp,  SI  Ala.  525; 
Dowling  V.  Lawrence.  58  Wis.  282;  Sheldon 
V.  Davidson,  85  Wis.  138;  Brooke  v.  Cole,  lOS 
Ga.   251. 


§8A 


MUST  BE  MADE  TO  PLAINTIFF. 


893 


the  facts,  and  the  circumstances  were  such  that  he  was  under  a  duty  to  disclose 
them.*® 

§  8.  The  representation  mtbst  he  made  to  the  plaintiff.  A.  In  general. — A 
false  representation,  to  sustain  an  action  of  deceit,  must  not  only  have  been  made 
with  intent  to  deceive,  but  it  must  have  been  made,  at  least  in  contemplation  of  the 
law,  with  intent  to  deceive  the  plaintiff,  and  therefore  it  must  have  been  made  with 
the  intention  that  he  should  act  upon  it.^"  In  other  words,  if  a  false  and  fraudulent 
representation  is  made  to  one  person,  with  intent  that  he  only  shall  act  upon  it,  and  a 
third  person  acts  upon  it,  the  latter  cannot  maintain  an  action.  ^^ 

It  is  not  necessary,  however,  that  the  representation  shall  have  been  made  di- 
rectly to  the  plaintiff.  It  is  enough  if  it  was  made  with  intent  that  it  should  be 
communicated  to  and  acted  upon  by  him."^^  "Every  man  must  be  held  liable  for 
the  consequences  of  a  false  representation  made  by  him  to  another  upon  wliich  a 
third  person  acts,  and  so  acting  is  injured  or  damnified,  provided  it  appear  that 
such  false  representation  was  made  with  the  intent  that  it  should  be  acted  upon 
by  such  third  person  in  the  manner  that  occasions  the  injury  or  loss;"^^  and  pro- 
vided the  injury  is  the  immediate  or  proximate,  and  not  the  remote  consequence  of 
the  representation.^*  Thus  where  a  dealer  sold  a  gun  to  a  man,  knowing  that  it 
was  to  be  used  by  the  purchaser  and  his  sons,  and  falsely  represented  that  it  was 
safe  and  sound,  he  was  held  liable  in  an  action  of  deceit  brought  by  a  son  of  the 
purchaser,  who  was  injured  by  the  bursting  of  the  gun.^' 


49.  See  the  cases  above  cited.  And  see 
ante,  §  5,  and  cases  there  cited. 

50.  Peelc  V.  Gurney,  L.  R.  6  H.  L..  377  (as 
to  which  see  infra,  note  52);  Wells  v.  Cook, 
16  Ohio  St.  67,  88  Am.  Dec.  436;  Buschman  v. 
Codd,  52  Md.  202;  Munro  v.  Gairdner,  3  Brev. 
(S.  C.)  31,  5  Am.  Dec.  531;  Henry  v.  Dennis, 
95  Me.  24.  85  Am.  St.  Rep.  365;  Carter  v.  Har- 
den. 78  Me.  528;  Butterfleld  v.  Barber,  20  R. 
I.  99;  Hunnewell  v.  Duxbury,  154  Mass.  286; 
Hindman  v.  First  Nat.   Bank,  86  Fed.   1013. 

51.  One  who  has  been  damaged  by  acting- 
upon  false  and  fraudulent  representations 
made  to  him  as  the  agent  of  another,  but 
not  intended  to  be  acted  upon  by  him,  cannot 
maintain  an  action  of  deceit  against  the  per- 
son making  the  representations — Wells  v. 
Cook,  16  Ohio  St.   67,   88  Am.  Dec.  436. 

Where  the  defendant  had  made  false  rep- 
resentations to  the  plaintiff  to  be  communi- 
cated to  the  defendant's  creditor  to  obtain 
extension  of  time  on  a  claim  which  was  sub- 
sequently transferred  to  the  plaintiff,  but  he 
did  not  know  that  a  note  given  in  payment 
of  the  claim  was  to  be  taken  by  the  plaintiff. 
It  was  held  that  the  defendant  was  not  liable 
to  the  plaintiff  in  an  action  of  deceit,  as  the 
false  representations  -were  not  made  with 
intent  that  they  should  be  acted  upon  by 
him — Butterfleld  v.  Barber,  20  R.  I.  99. 

The  seller  of  a  horse,  who  has  falsely  rep- 
resented it  to  be  gentle,  is  not  liable  in  an 
action  of  deceit  brought  by  the  wife  of  the 
purchaser,  for  personal  injury  sustained  by 
her  in  driving  the  horse,  where  he  did  not 
know  the  horse  was  intended  for  her  use — 
Carter  v.  Hardin,  78  Me.  528. 

53.  Langridge  v.  Levy,  2  Mees.  &  W.  519, 
4  Mees.  &  W.  338;  Chubbuck  v.  Cleveland,  37 
Minn.  466.  5  Am.  St.  Rep.  864;  Henry  v.  Den- 
nis, 95  Me.  24,  85  Am.  St.  Rep.  365;  Eaton  v. 
Avery,  83  N.  Y.  31,  38  Am.  Rep.  389,  Bur- 
dick's  Cas.  245;  Waterbury  v.  Andrews.  67 
Mich.  281;  Stoney  Creek  Woolen  Co.  v.  Smal- 


ley,  111  Mich.  321;  Salmon  v.  Richardson,  30 
Conn.  360,  79  Am.  Dec.  255;  Bartholomew  v. 
Bentley,  15  Ohio,  659,  45  Am.  Dec.  596;  Nash 
V.  Minnesota  Title  Ins.  &  Trust  Co.,  159  Mass. 
437;  James  v.  Crosthwait,  97  Ga.  673,  and 
cases  cited  in  the  notes  following. 

See  the  extensive  note  on  this  question  in 
85  Am.  St.  Rep.  368,  et  seq. 

One  is  liable  to  a  partnership  for  a  false 
representation  made  to  one  of  the  partners, 
although  not  made  to  him  as  such,  if  he  rely- 
ing thereon,  induces  the  firm  to  act  to  its 
damage — Henry  v.  Dennis,  95  Me.  24,  85  /-m. 
St.   Rep.  365. 

Where  a  person  made  false  representatit  n 
to  others  to  induce  them  to  form  a  corpora- 
tion and  to  have  the  corporation  enter  into  a 
contract  with  him  when  organized,  which 
was  done,  it  was  held  that  he  was  liable  to 
the  corporation  in  an  action  of  deceit,  al- 
though he  had  no  direct  communication  with 
it  prior  to  the  contract — Scholfleld  Gear  & 
Pulley  Co.  V.  Scholfleld,  71  Conn.  1. 

53.  Lord  Hatherly,  in  Barry  v.  Crosky,  2 
Tohns.  &  H.  1,  23. 

54.  Barry  v.  Crosky,  2  Johns.  &  H.  1,  23. 
See,  also,  post,  §  12. 

55.  Langridge  v.  Levy,  2  Mees.  &  W.  519, 
4  Mees.  &  W.  338. 

On  the  same  principle,  where  a  husband 
purchases  a  preparation  for  washing  the 
hair,  and  the  seller,  knowing  that  it  is  in- 
tended for  such  use  by  the  purchaser's  wife, 
falsely  and  fraudulently  represents  that  it  is 
fit  for  the  purpose,  the  wife  may  maintain 
an  action  against  the  seller  for  injuries  sus- 
tained in  using  it — George  v.  Skivington,  L, 
R.  5  Exch.  1. 

And  if  a  druggist  fraudulently  labels  a 
noxious  preparation  as  a  harmless  medicine, 
and  sells  it  as  such  to  dealers,  he  will  be  lia- 
ble to  any  one  who  purchases  it  from  a  deal- 
er and  is  injured  by  using  it.  The  action 
would  be  for  deceit  or  negligence  according 


894 


DECEIT. 


§  8B 


(§  8)  B.  Representations  to  a  class  or  to  the  public  generally. — ^A  representa- 
tion may  be  circulated  or  published  with  the  intent  that  it  shall  be  acted  upon  by  a 
certain  class  of  persons,  or  by  any  one  of  the  public  to  whose  hands  or  notice  it  may 
come.  In  such  a  case  it  is  deemed  to  be  made  to  any  person,  or  to  any  person  of  the 
particular  class,  as  the  case  may  be,  who  may  act  upon  it,  and  if  the  representation  is 
fraudulent,  and  he  is  damaged,  he  may  maintain  an  action  of  deceit.^^  Thus  a 
person  who  accepts  a  bill  for  another,  knowing  that  he  has  no  authority,  will  be  lia- 
ble in  an  action  of  deceit  to  anyone  who  may  become  the  holder  of  the  bill  in  re- 
liance on  the  acceptance."  And  where  a  merchant,  for  the  purpose  of  obtaining 
credit,  makes  a  false  and  fraudulent  statement  of  his  financial  condition  to  a  com- 
mercial agency,  he  will  be  liable  to  customers  of  the  latter  who  are  defrauded  by  ex- 
tending credit  to  him  in  reliance  thereon.'*^  A  railroad  company  issuing  a  time- 
table thereby  represents,  unless  it  is  otherwise  stated,  to  any  persons  meaning  to 
travel  by  its  trains,  that  it  will  use  reasonable  diligence  to  run  trains  as  therein 
specified,  and  if  a  train  which  has  been  taken  off  is  announced  as  still  running, 
there  is  a  false  representation,  for  which  any  person  who  has  sustained  loss  by  rely- 
ing on  the  representation  may  sustain  an  action  of  deceit.'^ 

A  prospectus  or  other  statement  issued  by  the  directors  or  promoters  of  a  cor- 
poration for  the  purpose  of  inducing  persons  to  subscribe  for  or  purchase  its  stock 
or  bonds,  and  containing  representations  which  they  know  to  be  false,  will  render 
them  liable  to  any  person  who  subscribes  or  purchases  in  reliance  on  the  repre- 
sentations.^" And  a  statement  issued  by  the  directors  of  a  bank,  containing  state- 
ments as  to  its  financial  condition  or  other  material  facts,  known  by  them  to  be 
false,  will  render  them,  or  the  bank,  or  both,  liable  to  any  person  who  is  thereby 
induced  to  make  deposits,  or  not  to  withdraw  deposits,  and  loses  the  same  by  rea- 
son of  the  bank's  insolvency."^     The  same  is  true  of  a  statement  issued  by  the  of- 


to  the  circumstances — Thomas  v.  Winchester, 
6  N.  Y.  397,  57  Am.  Dec.  455,  Chase's  Cas.  65, 
Bigelow's  Cas.  567.  And  see  V\'elling-ton  v. 
Downer  Kerosene  Oil  Co.,  104  Mass.  64. 

56.  PoUock.  Torts  (Webb's  Ed.)  373;  Peek 
V.  Gurney,  L.  R.  6  H.  L.  337;  Bartholomew  v. 
Bentley,  15  Ohio,  659.  45  Am.  Dec.  596;  Had- 
cock  V.  Osmer.  153  N.  T.  604,  Erwin's  Cas. 
440;  Rohrschneider  v.  Knickerbocker  Life 
Ins.  Co..  76  N.  Y.  216,  32  Am,  Rep.  290;  Eaton 
V.  Avery,  83  N.  Y.  31.  38  Am.  Rep.  389,  Bur- 
dlck's  Cas.  245;  Hindman  v.  First  Nat.  Bank 
(C.  C.  A.)  98  Fed.  562;  Stoney  Creek  Woolen 
Co.  V.  Smalley,  111  Mich.  321,  and  other  cases 
cited  in  the  notes  following.  And  see  the 
valuable  note  in  85  Am.  St.  Rep.  368  et  seq. 

General  letter  of  recommendation — Had- 
cock  V.  Osmer.  supra.  False  receipt  given  by 
vendor  of  land  to  enable  the  purchaser  to  de- 
ceive others  to  whom  he  may  afterwards  sell 
— Stoney  Creek  Woolen  Co.  v.  Smalley,  111 
Mich.   321. 

.-.7.     Polhill  v.  Walter,  3  Barn.  &  Ad.  114. 

r.S.  Eaton  V.  Avery,  83  N.  Y.  31,  38  Am. 
Rep.  389,  Burdick's  Cas.  245.  See,  also.  Con- 
verse V.  Sickles.  161  N.  Y.  666;  Bradley  v. 
Seaboard  Nat.  Bank,  167  N.  Y.  427;  Gaines- 
ville Nat.  Bank  v.  Bamberger.  77  Tex.  48.  19 
Am.  St.  Rep.  738:  Mooney  v.  Davis.  75  Mich. 
188,  13  Am.  St.  Rep.  425;  Genesee  Sav.  Bank 
V.  Michigan  Barge  Co.,  52  Mich.  164;  Hinch- 
man  v.  Weeks,  85  Mich,  535;  Furry  v.  O'Con- 
nor, 1  Ind.  App.  573. 

59.  Denton  v.  Great  Northern  R,  Co.,  6  El. 
&  Bl.   860. 

60.  Peek  v.  Gurney,  L.  R.  6  H.  L.  377; 
Clarke  v.  Dickson,  6   C.  B.    (N.   S.)    453;   Bed- 


ford v.  Bagshaw,  4  Hurl.  &  N.  538;  Andrews 
V.  Mockford  [1896]  1  Q.  B.  372:  Tyler  v.  Sav- 
age, 143  U.  S.  79;  Morgan  v.  Skiddy,  62  N.  Y. 
325;  Vreeland  v.  New  Jersey  Stone  Co.,  29  N. 
J.  Eq.  188;  Paddock  v.  Fletcher,  42  Vt,  389; 
Hublsard  v.  Weare.  79  Iowa,  678;  Gerner  v. 
Mosher.   58  Neb.   135. 

It  has  been  held  that  the  oflBce  of  a  pros- 
pectus of  a  new  company  setting  forth  mat- 
ters of  fact  concerning  the  position  and 
prospects  of  the  undertaking,  while  it  Is  to 
be  deemed  to  be  addressed  to  all  persons 
who  apply  for  shares  on  the  original  allot- 
ment in  the  formation  of  the  company,  is  ex- 
hausted when  the  shares  have  once  been  al- 
lotted, and  that  it  is  not  to  be  deemed  to  be 
addressed  to  persons  •who  may  afterwards 
purchase  shares  from  the  original  allottees 
or  their  transferees — Peek  v.  Gurney,  L.  R. 
6  H.  L.  377.  But  this  does  not  apply  where 
a  prospectus  is  issued,  not  merely  for  the 
purpose  of  inviting  persons  to  subscribe  for 
shares,  but  also  for  the  purpose  of  inducing 
them  to  purchase  shares  in  the  market — An- 
drews V.  Mockford  [1896]  1  Q.  B.  372. 

Directors  of  a  national  or  state  bank  are 
liable  for  false  and  fraudulent  representa- 
tions as  to  its  financial  condition  publislied 
by  them,  whereby  persons  are  induced  to 
purchase  its  stock — Gerner  v.  Mosher.  58  Neb. 
135;  Gerner  v.  Yates.  61  Neb.  100;  Houston  v. 
Thornton,   122  N.  C.  365.  65  Am.  St.   Rep.    699. 

61.  Westervelt  v.  Demarest,  46  N.  J.  Law, 
37.  50  Am.  Rep.  400,  Burdick's  Cas.  236;  Brady 
V.  Evans  (C.  C.  A.)  78  Fed.  558;  Zinn  v.  Men- 
del. 9  W.  Va.  580;  Seale  v.  Baker.  70  Tex.  283, 
8   Am.   St.   Rep.    592;   Tate   v.   Bates,   118  N.   C. 


§  9 


NECESSITY  OF  RELIANCE. 


8^5 


ficers  of  an  insurance  company  by  which  persons  are  induced  to  take  out  insur- 
ance.^- Officers  of  a  corporation  who  knowingly  sign  and  issue  fictitious  certifi- 
cates of  stock  are  liable  in  an  action  of  deceit  to  purchasers  or  pledgees  who  are 
damaged  by  relying  on  the  certificate  as  genuine.*'^  And  directors  or  other  officers 
wlio  fraudulently  cause  bonds  of  the  corporation  to  be  falsely  indorsed  "first  mort- 
gage bonds,"  and  place  them  in  the  hands  of  agents  for  sale,  or  the  corporation 
itself,  will  be  liable  to  purchasers  of  the  bonds  in  reliance  on  the  indorsement.®* 

§  9.  Necessity  for  reliance  on  representations. — In  order  that  a  person  may 
treat  a  false  representation  as  fraudulent,  for  the  purpose  either  of  avoidino-  a  con- 
tract or  of  an  action  of  deceit,  he  must  have  been  deceived  by  it,  and  one  is  not  de- 
ceived by  a  representation  unless  he  relies  upon  it  and  is  thereby  induced  to  act.®^ 
It  is  clear,  therefore,  that  one  cannot  maintain  an  action  of  deceit  for  a  false  and 
fraudulent  representation  which  he  knew  to  be  false  or  did  not  believe  to  be  true,®" 
or  which  had  not  been  communicated  to  him  at  all.®^  Nor  can  he  maintain  such 
an  action  if  he  made  and  acted  solely  upon  the  result  of  an  independent  inquiry 
or  investigation,  and  not  at  all  upon  the  false  representation.®* 


2S7,  54  Am.  St.  Rep.  719;  Solomon  v.  Bates, 
118  N.  C.  311,  54  Am.  St.  Rep.  725;  Stuart  v. 
Bank  of  Staplehurst,  57  Neb.  569.  And  see 
Cole  V.  Cassidy.  138  Mass.  437,  52  Am.  Rep. 
284;  Cowley  v.  Smyth,  46  N.  J.  Law,  380,  50 
Am.  Rep.  432.  Erwin's  Cas.  405;  Delano  v. 
Case,   121   111.    247,    2   Am.   St.   Rep.    81. 

False  publication  by  savings  bank  directors 
that  directors  and  stockholders  are  person- 
ally liable  to  depositors — Westervelt  v.  Dem- 
arest,  46  N.  J.  Law,  37,  50  Am.  Rep.  400. 

62.  Salmon  v.  Richardson.  30  Conn.  360,  79 
Am.  Dec.  255;  Pontifex  v.  Bignold,  3  Scott  N. 
R.  390,  3  Man.  &  G.  63;  Warfield  v.  Clark.  118 
Iowa,  69. 

63.  Windram  v.  French,  151  Mass.  547; 
Bruff  V.  Mali.  36  N.  T.  200;  Huntington  v. 
Attrill,  118  N.  Y.  365. 

64.  Clark  v.  Edgar,  84  Mo.  106,  64  Am. 
Rep.  84;  Bank  of  Atchison  County  v.  Byers, 
139  Mo.   627. 

65.  Pollock.  Torts  (Webb's  Ed.)  375,  376; 
Horsfall  v.  Thomas,  1  Hurl.  &  C.  90;  Ming 
V.  Woolfolk,  116  U.  S.  599;  Southern  Develop- 
ment Co.  V.  Silva,  125  U.  S.  247;  Taylor  v. 
Guest,  58  N.  Y.  262,  Erwin's  Cas.  445;  Brack- 
ett  V.  Griswold,  112  N.  Y.  454,  Erwin's  Cas. 
416;  Wakeman  v.  Dalley,  51  N.  Y.  27,  10  Am. 
Rep.  551;  Zabriskie  v.  Smith,  13  N.  Y.  322,  64 
Am.  Dec.  551;  Tindle  v.  Birkett,  57  App.  Div. 
(N.  Y.)  450;  Bennett  v.  Gibbons,  55  Conn.  450; 
Flanders  v.  Cobb.  88  Me.  488,  51  Am.  St.  Rep. 
410;  Roscoe  v.  Sawyer,  71  Vt.  367;  Tuck  v. 
Downing-,  76  111.  71;  Holdom  v.  Ayer,  110  111. 
448;  Dady  v.  Condit.  163  111.  511;  Hagee  v. 
Grossman,  31  Ind.  223;  T\^hiting  v.  Hill,  23 
Mich.  399;  Page  v.  Parker,  43  N.  H.  363,  80 
Am.  Dec.  172;  Priest  v.  White,  89  Mo.  609; 
Anderson  v.  McPike,  86  Mo.  293;  Cole  v. 
Smith.  26  Colo.  506,  58  Pac.  1086;  Grosjean  v. 
Galloway,  82  App.  Div.  (N.  Y.)  380;  Burnett 
v.  Hensley,  118  Iowa,  575. 

The  fact  that  one  who  rented  certain  prem- 
ises for  a  certain  price  had  been  falsely  told 
by  the  landlord  that  it  had  previously  rented 
at  that  figure  does  not  show  that  he  acted  on 
such  statements — Powell  v.  F.  C.  Linde  Co., 
171  N.  Y.  675. 

The  purcliaser  of  a  note  who  relied  solely 
upon  the  seller's  indorsement,  and  not  upon 
his   false  representations  as   to   the  solvency 


of  the  maker,  cannot,  after  failure  to  take 
th«  proper  steps  to  charge  the  seller  as  in- 
dorser,  maintain  an  action  of  deceit  for  the 
false  representations — Flanders  v.  Cobb  88 
Me.  488,  51  Am.  St.  Rep.  410. 

Reliance  on  guaranty,  and  not  on  false  rep- 
resentations— Holdom  v.  Ayer,  110  III.   448. 

One  who  has  lost  his  deposit  in  a  bank  by 
reason  of  its  insolvency  cannot  hold  the  di- 
rectors or  other  officers  liable  in  an  action 
of  deceit  because  of  their  false  representa- 
tions as  to  its  condition,  if  he  was  not  in- 
duced thereby  to  make  or  leave  the  deposit 
— Brady  v.  Evans   (C.  C.  A.)   78  Fed.   558. 

66.  Cowen  V.  Simpson,  1  Esp.  290;  Whiting 
V.  Hill,  23  Mich.  399;  Bennett  v.  Gibbons,  55 
Conn.  450;  Adams  v.  Sage,  28  N.  Y.  103;  Clout- 
man  V.  Bailey,  62  N.  H.  44;  Proctor  v.  McCoid, 
60  Iowa,  153;  Hooper  v.  Whitaker,  130  Ala. 
324;  Anderson  v.  Burnett,  5  How.  (Miss.)  165, 
35  Am.  Dec.  425;  Davis  v.  Hawkins,  163  Pa. 
228;  Crehore  v.  Crehore.  97  Mass.  330,  93  Am. 
Dec.  98;  Marshall  v.  Gilman,  52  Minn.  88. 

67.  Horsfall  v.  Thomas,  1  Hurl.  &  C.  90; 
Brackett  v.  Griswold,  112  N.  Y.  454,  Erwin's 
Cas.   416;   Lindsey  v.  LIndsey,  34  Miss.   432. 

A  purchaser  of  defective  goods  who  has 
made  no  inspection  at  all  cannot  maintain  an 
action  of  deceit  against  the  seller  because  he 
patched  up  a  flaw  in  the  goods  to  prevent  the 
defect  from  being  seen — Horsfall  v.  Thomas, 
1  Hurl.  &  C.   90. 

68.  Redgrave  v.  Hurd,  20  Ch.  Div.  1; 
Farnsworth  v.  Duffner,  142  U.  S.  43;  Southern 
Development  Co.  v.  Silva,  125  U.  S.  247;  Hagee 
V.  Grossman,  31  Ind.  223;  Hall  v.  Thompson, 
1  Smedes  &  M.  (Miss.)  443;  Grauel  v.  Wolfe, 
185  Pa.  83;  Boyd  v.  Shiffer,  156  Pa.  100; 
Crocker  v.  Manley,  164  111.  282,  56  Am.  St. 
Rep.  196;  Adams  v.  Sage,  28  N.  Y.  103;  An- 
derson V.  McPike,  86  Mo.  293;  Lee  v.  Burn- 
ham,  82  Wis.  209;  Colton  v.  Stanford,  82  Cal. 
351.  23  Pac.  16,  16  Am.  St.  Rep.  137. 

This  does  not  apply,  of  course,  where  the 
party  to  whom  the  representation  is  made, 
and  who  makes  an  Investigation,  is  prevented 
by  the  other  party  from  ascertaining  the 
truth,  or  the  circumstances  are  such  that  he 
cannot  ascertain  the  truth,  and  he  In  fact  Is 
influenced  after  all  partly  by  the  representa- 
tion— Smith  v.  Land  &  House  Property  Corp., 
28  Ch.  Div.  7,  Bigelow's  Cas.  26. 


&9o 


DECEIT. 


§   10 


It  is  not  necessary,  however,  that  the  representation  complained  of  shall  have 
been  the  sole  inducement  to  the  plaintiff's  action,  or  even  the  principal  induce- 
ment; but  it  is  sufficient  if  it  was  a  material  inducement,  although  there  may  have 
been  others."^  And  if  this  is  so,  it  is  not  necessary  to  show  that  the  plaintiff 
would  not  have  acted  if  the  representation  had  not  been  madeJ" 

When  it  is  said  that  a  person  cannot  maintain  an  action  for  false  and  fraud- 
ulent representations  imless  he  acted  upon  them,  it  is  not  meant  that  he  must  have 
done  some  positive  act,  as  distinguished  from  a  forbearance  to  act.  One  who  re- 
frains from  doing  what  he  would  otherwise  have  done,  in  reliance  on  a  false  and 
fraudulent  representation  made  for  the  purpose  of  inducing  him  to  do  so,  acts  on 
the  representation  within  the  meaning  of  the  law,  and  if  damaged  thereby,  may 
maintain  an  action.''^ 

The  fact  that  a  sale  of  personal  property  is  "with  all  faults,"  or  a  sale  and  as- 
signment of  commercial  paper  or  a  mortgage,  etc.,  is  "without  recourse,"  is  no  bar 
to  an  action  of  deceit  for  false  and  fraudulent  representations  of  fact  by  the  seller 
or  assignor,  if  they  were  relied  upon  by  the  purchaser  or  assignee.''^ 

§  10.  Representations  upon  which  one  has  a  right  to  rely. — Whether  or  not 
a  person  has  a  right  to  rely  upon  representations  made  by  another  depends  upon 
the  character  of  the  representations  and  the  circumstances  under  which  they  are 
made.  The  courts  have  recognized  the  fact  that  sellers  of  property  and  other  per- 
sons, to  induce  another  to  enter  into  a  contract,  will  resort  to  commendatory  and 
extravagant  expressions  and  representations  as  to  value,  quality,  and  the  like,  and 
have  held,  within  limits,  that  such  representations,  although  known  to  be  false,  and 
in  fact  relied  upon  by  the  other  party,  cannot  be  made  the  basis  of  a  charge  of 
fraud,  either  for  the  purpose  of  rescinding  the  contract,  or  for  the  purpose  of  main- 
taining an  action  of  deceit,  unless  the  representations  relate  to  facts  as  to  which  the 
parties  have  not  equal  means  of  Imowledge,  or  the  party  making  them  induces  the 
other  to  forego  making  inquiry  or  examination  for  himself.  The  reason  is  that 
such  representations  may  be  expected,  and  the  party  to  whom  they  are  made  is  not 
supposed  to  rely  upon  them.  If  he  does  so  it  is  his  own  folly,  and  he  cannot  com- 
plain.    This  principle  is  expressed  in  the  maxims,  simplex  commendatio  non  ohligat 


69.  Peek  v.  Derry,  37  Ch.  Div.  541.  14  App. 
Cas.  337;  Clarke  v.  Dickson.  6  C.  B.  (N.  S.) 
453;  Safford  v.  Grout.  120  Mass.  2'i;  V\"ind- 
ram  v.  French,  151  Mass.  547;  Roberts  v. 
French,  153  Mass.  60,  25  Am.  St.  Rep.  611; 
Morgan  v.  Skiddy,  62  N.  T.  319;  Strong  v. 
Strong,  102  N.  T.  69;  Lebby  v.  Ahrens,  26  S. 
C.  275;  Hicks  v.  Stevens.  121  111.  1S6;  Cabot  v. 
Christie,  42  Vt.  121,  1  Am.  Rep.  313;  Braley  v. 
Powers.  92  Me.  203;  Scholfield  Gear  &  Pulley 
Co.  V.  Scholfield.  71  Conn.  1;  Lee  v.  Burnham, 
82  Wis.  209;  Shaw  v.  Gilbert,  111  V\'is.  165. 
1S4;  James  v.  Crosthwait,  97  Ga.  673;  Dashiel 
V.  Harshman.  113  Iowa,  283. 

"It  was  not  necessary."  said  the  court  in  a 
late  Maine  case,  "that  the  defendant's  false 
representation  should  have  been  the  sole,  or 
even  the  principal  inducement  for  the  plain- 
tiff to  enter  into  the  contract.  If  it  exerted 
a  material  influence  upon  his  mind,  although 
it  was  only  one  of  several  motives  acting  to- 
gether, which  prodviced  the  result,  it  would 
be  sufficient  to  render  the  defendant  liable" — 
Braley  v.  Powers,  92  Me.  203. 

70.  "^Vhat  the  plaintiff  would  have  done, 
but  for  the  false  representations,  is  often  a 
mere  speculative  inquiry,  and  is  not  the  test 
of  the  plaintiff's  right.  If  the  false  repre- 
sentations   were    material    and    relied    upon, 


and  were  intended  to  operate,  and  did  oper- 
ate, as  one  of  the  inducements  to  the  trade, 
it  is  not  necessary  to  inquire  vs'hether  the 
plaintiff  -would  or  would  not  have  made  the 
purchase  without  this  inducement" — Cabot  v. 
Christie,  42  Vt.  121,  1  Am.  Rep.  313. 

71.  Fottler  V.  Moseley,  179  Mass.  295, 
(holding  that  an  action  could  be  maintained 
against  a  broker  for  false  and  fraudulent 
representations  by  which  the  plaintiff  was 
induced  to  refrain  from  selling  stock,  and 
was  thereby  damaged) ;  Alexander  v.  Church, 
53  Conn.  561.  (holding  that  a  subcontractor 
on  a  building  could  maintain  an  action 
against  the  owner  for  a  false  and  fraudulent 
representation  by  which  he  was  induced  not 
to  perfect  his  lien).  Compare  Bradley  v.  Ful- 
ler. 118  Mass.  239,  where  it  was  held  that  a 
creditor  could  not  maintain  an  action  for 
false  representations  inducing  him  not  to  at- 
tach property  of  his  debtor,  on  the  ground 
that  there  was  no  damage.  As  to  this  see 
post,  §  12. 

72.  Schneider  v.  Heath,  3  Camp.  506;  Hex- 
ter  V.  Bast.  125  Pa.  52.  11  Am.  St.  Rep.  874; 
West  v.  Anderson,  9  Conn.  107,  21  Am.  Dec. 
737.  See  George  v.  Johnson,  6  Humph. 
(Tenn.)   36,  44  Am.  Dec.  288. 


§  10 


RIGHT   TO   RELY. 


897 


and  caveat  emptorJ'  "If  the  buyer  trusts  to  representations  which  were  not  cal- 
culated to  impose  upon  a  man  of  ordinary  prudence,  or  if  he  neglects  the  means  of 
information  easily  within  his  reach,  it  is  better  that  he  should  suffer  the  conse- 
quences of  his  own  folly  than  to  give  him  an  action  against  the  seller."^*  It  may 
be  laid  down  as  a  general  rule,  therefore,  that  false  representations  by  the  vendor 
of  real  property  to  the  purchaser,  as  to  the  condition,  situation,  or  value  of  the 
property,  will  not  support  an  action  of  deceit,  although  known  by  the  vendor  to  be 
false,  unless  the  purchaser  had  no  reasonable  present  means  of  ascertaining  the 
truth,  or  was  fraudulently  induced  by  the  vendor  not  to  make  inquiry  or  examina- 
tion, or  unless  there  was  a  special  confidential  relation  between  the  parties/^  And 
the  same  is  true  of  false  representations  as  to  quality  or  value  made  by  the  seller 
of  personal  property,  stock  of  corporations,  or  bonds,  notes,  and  other  choses  in  ac- 
tion.'^® 

This  principle  does  not  apply,  however,  to  false  representations  by  the  seller  of 
property  as  to  extrinsic  facts  affecting  its  value,  or  even  to  false  representations  as 
to  value,  condition,  quality,  etc.,  where  the  representations  are  made  as  statements 
of  fact,  and  with  intent  that  they  shall  be  relied  upon,  and  the  means  of  ascertain- 
ing the  truth  are  not  equally  open  to  the  purchaser,  or  he  is  induced  not  to  make 
inquiry  or  examination  for  himself.  In  such  a  case  the  purchaser  has  a  right  to 
rely  upon  the  representations,  and  if  he  does  so,  and  is  damaged,  he  may  maintain. 
an  action.'^'^ 

Under  such  circumstances  an  action  of  deceit  may  be  maintained,  in  the  case 
of  sales  of  real  property,  for  a  false  and  fraudulent  representation  by  the  vendor  or 
a  third  person  as  to  the  amount  of  rental  or  income  from  the  property,'^^  or  as  to 


73.  Harvey  v.  Young,  Telv.  21;  Stewart  v. 
Stearns,  63  N.  H.  99,  56  Am.  Rep.  496,  Bur- 
dick's  Cas.  233;  Parker  v.  Moulton,  114  Mass. 
99,  19  Am.  Rep.  315:  Long-  v.  "Warren,  68  N. 
Y.  426,  Chase's  Cas.  263;  Chrysler  v.  Canaday, 
90  N.  Y.  272,  43  Am.  Rep.  166,  Bigelow's  Cas. 
17. 

The  leading-  case  is  Harvey  v.  Young.  Yelv. 
21.  In  that  case  the  plaintiff  in  an  action  of 
deceit  alleged  that  the  defendant  stated  that 
a  certain  term  of  years  -which  he  proposed 
to  sell  to  him  -was  -worth  one  hundred  and 
fifty  pounds,  -when  it  -was  in  fact  -worth  but 
one  hundred  pounds.  After  a  verdict  for 
the  plaintiff  judgment  -was  arrested  upon 
the  ground  that  it  -was  the  plaintiff's  folly 
to  gJve  credit  to  such  an  assertion. 

74.  Page  V.  Parker,  43  N.  H.  363,  80  Am. 
Dec.    172. 

75.  Harvey  v.  Young,  Yelv.  21;  Long  v. 
Warren,  68  N.  Y.  426,  Chase's  Cas.  263; 
Chrysler  v.  Canaday,  90  N.  Y.  272,  43  Am. 
Rep.  166,  Bigelo-w's  Cas.  17;  Gordon  V.  Par- 
melee,  2  Allen  (Mass.)  212;  Parker  v.  Moul- 
ton. 114  Mass.  99,  19  Am.  Rep.  315;  Messer 
V.  Smyth,  59  N.  H.  41;  Gustafson  v.  Ruste- 
'neyer,  70  Conn.  125;  Williams  v.  McFadden, 
23   Fla.    143,    11   Am.   St.   Rep.    345. 

76.  Davis  v.  Meeker,  5  Johns.  (N.  Y.)  354; 
Ellis  V.  Andre-ws,  56  N.  Y.  83,  15  Am.  Rep. 
379;  Chrysler  v.  Canaday,  90  N.  Y.  272,  43 
Am.  Rep.  166,  Bigelow's  Cas, ,17;  Salem  India 
Rubber  Co.  v.  Adams,  23  Pick.  (Mass.)  256; 
Brown  v.  Leach,  107  Mass.  364,  Bigelow's 
Cas.  33;  Poland  v.  Brownell,  131  Mass.  138, 
41  Am.  Rep.  215;  Collins  v.  Jackson,  54  Mich. 
186;  Mamlock  v.  Fairbanks,  46  Wis.  415,  32 
Am.  Rep.  716;  Leavitt  v.  Fletcher,  60  N.  H. 
182;   Buschman  v.   Codd,   52  Md.   202. 

77.  Ekins  v.   Tresham,   1   Lev..    102;   Stew- 


art V.  Stearns,  63  N.  H.  99,  56  Am.  Rep.  496, 
Burdick's  Cas.  233;  Chrysler  v.  Canaday,  90 
N.  Y.  272,  43  Am.  Rep.  166,  Bigelow's  Cas. 
17;  Townsend  v.  Felthousen.  156  N.  Y.  618; 
Cottrill  V.  Krum,  100  Mo.  397,  18  Am.  St. 
Rep,    549. 

Value  of  territorial  rights  under  patent — 
Coulter   V.   Clark    (Ind.)    66    N.   E.    739. 

An  inexperienced  person  is  entithid  to 
rely  on  the  representations  of  a  promoter 
as  to  the  value  of  corporate  stock — Hebs  v. 
Draffen    (Mo.   App.)    74    S.    W.    440. 

And  see  the  cases  more  specifically  cited 
in  the  notes  following.  "If  the  rule  caveat 
emptor,"  said  the  New  Hampshire  court, 
"was  of  universal  application,  an  action  of 
deceit  for  false  representations  in  a  sale 
could  never  be  maintained  by  the  purchas- 
er. It  may  be  difficult  to  draw  the  line 
which  separates  cases  within  the  rule  from 
those  to  which  it  does  not  apply,  as  each 
case  depends  to  some  extent  upon  its  pe- 
culiar circumstances;  but  it  applies  gen- 
erally to  cases  free  from  actual  fraud,  where 
the  parties  deal  upon  an  equal  footing  and 
with  equal  means  of  knowledge;  and  it  is 
not  applicable,  as  a  general  rule,  where 
false  and  fraudulent  representations  of  ma- 
terial facts  are  made  by  the  vendor,  and  the 
parties  have  not  equal  facilities  for  ascer- 
taining the  truth.  In  such  cases  the  pur- 
chaser has  a  right  to  rely  upon  the  state- 
ments of  the  vendor;  and  when  the  purchas- 
er is  justified  in  relying  upon  the  represent- 
ations of  the  vendor,  the  rule  caveat  emptor 
does  not  apply" — Stewart  v.  Stearns,  63  N. 
H.   99,  56  Am.  Rep.   496,  Burdick's  Cas.   233. 

78.  Ekins  v.  Tresham,  1  Lev.  102;  Dobel 
V.  Stevens.  3  Barn.  &  C.  623;  Hecht  v.  Metz- 
ler,    14    Utah,    408,    48    Pac.    37,    60    Am.    St. 


Curr.  Law — 57. 


898 


DECEIT. 


§  10 


its  quality  or  condition/^  the  frequency  of  the  arrival  and  departure  of  trains,**' 
the  title,"  incumbrances,*^  location  or  boundaries,*^  number  of  acres,**  annexation  of 
particular  privileges,*^  rights  of  way  or  other  easements  or  appurtenances.**'  And 
the  circumstances  may  be  such  as  to  permit  the  vendor  of  land  to  maintain  an  ac- 
tion for  false  representations  as  to  land  made  by  the  purchaser.*^  So  also,  where 
the  circumstances  are  as  above  stated,  an  action  may  be  maintained  by  the  pur- 
chaser of  personal  property  for  false  and  fraudulent  representations  as  to  the  qual- 
ity or  condition,**  or  as  to  the  quantity,*^  or  the  title,^°  etc.;  or  by  the  purchaser 
of  a  note  or  bond  for  a  false  and  fraudulent  representation  that  it  is  good,  or  the 
maker  or  obligor  solvent,®^  or  that  it  is  secured  by  a  mortgage  on  real  estate,"-  or 
that  such  bonds  have  sold  in  the  market  at  a  certain  price  f^  or  by  the  purchaser  of 
shares  of  stock  for  a  false  and  fraudulent  representation  that  it  has  always  paid  a 
certain  dividend;®*  or  by  the  purchaser  of  a  patent  right  for  false  representations 
as  to  what  is  covered  by  the  patent,  or  what  is  not  covered  by  an  earlier  patent;®" 
or  as  to  the  cost  of  manufacturing  the  article  covered  by  the  patent,  it  being  a  novel 
device  with  no  established  market  price.®' 

Even  a  representation  as  to  the  value  of  property,  real  or  personal,  may  be 
relied  upon,  and  will  support  an  action  of  deceit,  if  the  parties  occupy  a  special 
relation  of  trust  and  confidence,  or  if  they  have  not  equal  means  of  knowledge,  and 
if  the  representation  is  made  as  a  statement  of  fact  and  with  intent  that  it  shall  be 
relied  upon.®^ 


Rep.    906;    Grifflng  v.    DlUer,    21    N.    T.    Supp. 
407;  Wise  v.   FuUer,   29  N.  J.  Eq.   257. 

79.  Van  Epps  v.  Harrison,  5  Hill  (N.  Y.) 
63,  40  Am.  Dec.  314;  Caldwell  v.  Henry,  76 
Mo.  254;  Oakes  v.  Miller,  11  Colo.  App.  374; 
Holcomb  V.  Noble.  69  Mich.  396;  Smith  v. 
Myers,  56  Neb.  503;  Dinwiddle  v.  Stone,  21 
Ky.  L.  R.  584,  52  S.  W.  814;  Hecht  v.  Metz- 
ler.  14  Utah,  408,  48  Pac.  37,  60  Am.  St. 
Rep.    906. 

80.  Hoist  V.  Stewart.  161  Mass.  516,  42  Am. 
St.  Rep.   4  12. 

81.  Bostwick  V.  Lewis,  1  Day  (Conn.)  250, 
2  Am.  Dec.  73;  Wardell  v.  Fosdick,  13  Johns. 
(N.  T.)  325.  7  Am.  Dec.  383;  Culver  v.  Avery, 
7  Wend.  (N.  Y.)  380,  22  Am.  Dec.  586;  Ward 
V.  Wiman,  17  Wend.  (N.  Y.)  193:  Haight  v. 
Hoyt,  19  N.  Y.  464;  Atwood  v.  Chapman,  68 
Me.  38,  28  Am.  Rep.  5;  Reynolds  v.  Frank- 
lin. 39  Minn.  24,  44  Minn.  30,  20  Am.  St.  Rep. 
540;  Hunt  v.  Barker,  22  R.  I.  18.  84  Am.  St. 
RpT).  812;  Wilson  v.  Allen  (Wis.)  93  N.  W. 
807. 

But  see  Peabody  v.  Phelps,  9  Cal.  213;  An- 
<Jru3  V.  St.  Louis  Smelting  &  Ref.  Co..  130 
U.  S.   643. 

82.  Weber  v.  Weber,  47  Mich.  569;  West 
V.  Wright,  98  Ind.  335;  Hutchinson  v.  Gor- 
man (Ark.)  73  S.  W.  793;  Riley  v.  Bell 
(Iowa)    95   N.   W.   170. 

S3,  Foster  v.  Kennedy's  Adm'r,  38  Ala. 
359,  81  Am.  Dec.  56;  Munroe  v.  Pritchett,  16 
Ala.  785,  50  Am.  Dec.  203;  Caldwell  v.  Henry, 
76  Mo.  254;  Hecht  v.  Metzler,  14  Utah,  408, 
48  Pac.  37,  60  Am.  St.  Rep.  906;  Baker  v. 
Sherman.  71  Vt.  439;  Gunther  v.  Ullrich,  82 
Wis.  222,  33  Am.  St.  Rep.  32:  Davis  v.  Xuzum, 
72  Wis.  439;  Kevrell  v.  Horn.  45  N.  H.  421; 
Roberts  v.  Holliday,  10  S.  D.  576;  Smith  v. 
Myers,   56  Neb.   503. 

84.  Starkweather  v.  Benjamin,  32  Mich. 
305;  Griswold  v.  Gebbie,  126  Pa.  353,  12  Am. 
St.  Rep.  878;  Lovejoy  v.  Isbell.  73  Conn.  368; 
Coon  V.  Atwell.  46  N.  H.  510;  Hill  v.  Brower, 
76  N.  C.  124;  Whitney  v.  Allaire,  1  N.  Y.  305. 


Compare,  however,  Gordon  v.  Parmelee,  2 
Allen  (Mass.)  212;  Mooney  v.  Miller,  102 
Mass.  217;  Credle  v.  Swindell,  63  N.  C.   305. 

Such  a  representation  is  ordinarily  not 
actionable,  if  a  mere  expression  of  opinion 
or  estimate — Bankson  v.  Lagerlof  (Iowa)  75 
N.  W.  661.    See  ante,  §  2  B. 

85.  Monell  V.  Colden,  13  Johns.  (N.  Y.) 
395.   7  Am.   Dec.   390. 

86.  Durkin  v.  Cobleigh,  156  Mass.  108,  32 
Am.  St.  Rep.  436;  Fenley  v.  Moody,  104  Ga. 
790. 

87.  Where  the  purchaser  of  land  fn.lsely 
represented  its  condition  to  the  vendor,  who 
was  his  sister,  and  who  lived  in  another 
state  and  was  ignorant  of  its  condition,  he 
was  held  liable  to  her  in  an  action  of  de- 
ceit— Akers  v.   Martin    (Ky.)    61   S.   W.   465. 

88.  Stewart  v.  Stearns.  63  N.  H.  99,  56 
Am.  Rep.  496.  Burdick's  Cas.  233;  Stiles  v. 
White,  11  Mete.  (Mass.)  356.  45  Am.  Dec.  214; 
Townsend  v.  Felthousen,  156  N.  Y.  618; 
Trice  v.  Cochran,  8  Grat.  (Va.)  442,  56  Am. 
Dec.    151;    Buschman   v.   Codd.   52   Md.    202. 

89.  An  action  will  lie  against  a  seller  of 
carpets  laid  on  the  floors  of  a  house  for 
a  false  representation  of  fact  as  to  the 
number  of  yards  therein — Lewis  v.  Jewell, 
151  Mass.  345,  21  Am.   St.   Rep.   454. 

90.  Barney  v.  Dewey.  13  Johns.  (N.  Y.) 
224,  7  Am.  Dec.  372;  Campbell  v.  Hillman,  15 
B.   Mon.    (Ky.)    508,    61   Am.   Dec.   195. 

91.  Safford  v.  Grout,  120  Mass.  20;  An- 
drews V.  Jackson,  168  Mass.  266,  60  Am.  St. 
Rep.  390;  Binghampton  Trust  Co.  v.  Auten, 
68  Ark.   299.   82  Am.   St.   Rep.   295. 

92.  Whiting  v.  Price,  172  Mass.  240,  70 
Am.  St.   Rep.   262. 

93.  Manning  v.  Albee,  11  Allen  (Mass.) 
520. 

94.  Handy  v.  Waldron,  18  R.  I.  567,  49 
Am.   St.   Rep.   794. 

95.  David  v.  Park.  103  Mass.  501,  Bur- 
dick's   Cas.    247. 

96.  Braley  v.   Powers,   92  Me.   203. 


§  10 


RIGHT   TO   RELY. 


899 


A  false  statement,  if  made  by  the  seller  of  property,  as  to  what  it  cost,  or  as  to 
what  it  has  sold  for  or  he  has  been  offered  for  it,  etc.,  has  been  held  by  some  courts 
to  be  in  the  category  of  mere  dealer's  talk,  and  not  to  constitute  the  basis  of  a  charge 
of  fraud,®^  while  other  courts  have  held  the  contrary.**^  Such  a  representation  if 
made  by  a  third  person,  and  not  by  the  seller,  is  actionable.^  And  it  is  actionable 
€ven  when  made  by  the  seller,  if  there  is  a  special  relation  of  confidence  between 
the  parties,-  or  if  the  price  to  be  paid  is  based  upon  the  cost,  and  the  cost  is  falsely 
misrepresented.^ 

It  has  been  held  that  an  action  of  deceit  will  not  •  against  one  for  a  false  and 
fraudulent  representation  merely  that  he  is  "a  person  safely  to  be  trusted  and  given 
-credit  to,"  on  the  ground  that  such  a  representation  is  mere  dealer's  talk  upon 
which  a  person  is  not  supposed  to  rely,*  and  some  courts  seem  to  have  gone  further 
and  to  have  held  that  an  action  will  not  lie  for  false  representations  by  a  person 
that  he  is  solvent  or  that  he  has  certain  resources,  fraudulently  made  for  the  pur- 
pose of  procuring  credit,''  The  latter  proposition,  however,  is  not  sustained  by  the 
weight  of  authority.  Most  of  the  courts  in  which  the  question  has  arisen  have  held 
that  a  false  and  fraudulent  representation  by  a  purchaser  of  goods,  or  other  person, 
that  he  is  solvent,  or  that  he  has  certain  property  or  resources,  made  for  the  pur- 
pose of  procuring  credit,  and  relied  upon  by  the  party  to  whom  it  is  made  in  giving 
credit,  is  such  a  fraudulent  representation  of  fact  as  will  support  an  action  of  de- 
ceit.' 

An  action  of  deceit  lies  by  a  creditor  against  his  debtor  for  a  false  and  fraudu- 
lent representation  by  the  latter  that  he  is  insolvent,  whereby  the  creditor  is  induced 
to  discharge  a  note  or  other  debt  on  payment  of  less  than  the  full  amount,'^  or  to 
release  claims  and  accept  a  note  in  settlement  of  pending  actions,^  or  whereby  he  is 
induced  to  forbear  his  efforts  to  collect  the  debt  until  after  it  has  become  barred  by 
the  statute  of  limitations.® 


97.  Simar  v.  Canaday,  53  N.  T.  298.  13 
Am.  Rep.  523;  Chrysler  v.  Canaday,  90  N.  T. 
272,  43  Am.  Rep.  166,  Bigelow's  Cas.  17; 
Townsend  v.  Felthousen,  156  N.  T.  618;  Man- 
ley  V.  Felty,  146  Ind.  194;  Handy  v.  Waldron, 
IS  R.  I.  567,  49  Am.  St.  Rep.  794;  Plcard  v. 
McCormick,  11  Mich.  68;  Holcomb  v.  Noble, 
69  Mich.   396. 

8S.  Medbury  v.  Watson,  6  Mete.  (Mass.) 
246,  39  Am.  Dec.  726;  Cooper  v.  Lovering-, 
106  Mass.  79;  Boles  v.  Merrill,  173  Mass.  491, 
73  Am.  St.  Rep.  308;  Holbrook  v.  Connor, 
60  Me.  578,  11  Am.  Rep.  212;  Martin  v.  Jor- 
dan. 60  Me.  531;  Bishop  v.  Small,  63  Me.  12; 
Colo  V.    Smith,    23   Colo.    506,   58   Pac.    1086. 

99.  Van  Epps  v.  Harrison,  5  Hill  (N.  T.)  63, 
40  Am.  Dec.  314;  Fairchild  v.  McMahon,  139 
N.  Y.  290,  36  Am.  St.  Rep.  701;  McAleer  v. 
Horsey,  35  Md.  439;  Page  v.  Parker,  43  N. 
H.  363.  80  Am.  Dec.  172;  Ives  v.  Carter,  24 
Conn.  3  92;  Morehead  v.  Eades,  3  Bush  (Ky.) 
121;    Strickland  v.   Graybill,   97  Va.    602. 

Representation  by  attorney  to  client — 
Manley  v.  Felty.  146  Ind.  194.  See,  also, 
Stoney  Creek  Woolen  Co.  v.  Smalley,  111 
Mich.   321. 

1.  Medbury  v.  Watson,  6  Mete.  (Mass.) 
246.  39  Am.  Dec.  726;  Kenner  v.  Harding, 
S5  111.   264,   28  Am.  Rep.   615. 

2.  Tcachout  v.  Van  Hoesen,  76  Iowa,  113, 
14   Am.    St.    Rep.    206. 

3.  Where  a  person  contracts  to  sell  to 
an-^chti-  d.  shars  in  property  at  cost  price 
and  falsely  states  the  cost  price,  the  mis- 
r-^presentation  is  a  fraud — Pendergast  v. 
R«r>cl.   29  Md.   398,   96  Am.   Dee.   539. 


If  a  person  Induces  another  to  join  with 
him  In  the  purchase  of  land,  each  to  pay 
one-half  of  the  purchase  price,  and  by  false- 
ly representing  the  purchase  price  to  be 
greater  than  it  really  is  obtains  from  the 
latter  more  than  one-half  of  the  actual 
price  paid,  the  deceit  is  actionable — Bei'ge- 
ron  V.  Miles,  88  Wis.  397,  43  Am.  St.  Rep. 
911.  See,  also,  Bunn  v.  Schnellbacher,  163 
111.   328. 

4.  Lyons  V.  Briggs,  14  R.  I.  222,  51  Am. 
Rep.   372. 

5.  Fisher  v.  Brown,  1  Tyler  (Vt.)  387,  4 
Am.  Dec.  726.  See,  also.  Dyer  v.  Tilton,  23 
Vt.   313. 

Contra,  where  there  was  an  intention  not 
to  pay — Swift  v.  Rounds,  19  R.  I.  527,  61 
Am.  St.  Rep.  791.  As  to  this  see  ante,  § 
2  C. 

6.  Eaton  v.  Avery,  83  N.  T.  31,  38  Am. 
Rep.  389;  Cain  v.  Dickinson,  60  N.  H.  371; 
Strong  V.  Strong,  102  N.  Y.  69.  See,  also, 
Morse  V.  Shaw,  124  Mass.  59;  Newell  v.  Ran- 
dall, 32  Minn.  171,  50  Am.  Rep.  562;  Mooney 
V.  Davis,  75  Mich.  188,  13  Am.  St.  Rep.  425. 
This  does  not  apply  to  a  buyer's  false  rep- 
resentation as  to  his  financial  condition, 
if  it  is  a  mere  statement  of  opinion — Syra- 
cuse Knitting  Co.  v.  Blanchard,  69  N.  H. 
447.  As  to  the  right  to  maintain  an  action 
for  false  representations  as  to  financial  con- 
dition made  to  a  mercantile  agency,  see  ante, 
§  8,  note  58. 

7.  Edwards  v.  Owen,  15  Ohio,  500;  Wea- 
sels  V.   Carr,   15   App.   Div.    (N.  Y.)    360. 

8.  Strong   v.    Strong,    102    N.    Y.    69. 


900 


DECEIT. 


§11 


§  11.  Negligence  in  relying  on  representations. — As  we  have  seen  in  the  pre- 
ceding section,  it  is  a  general  rule  that  a  purchaser  of  real  or  personal  property,  or  a 
party  to  any  other  contract,  has  no  right  to  rely  upon  representations  by  the  seller, 
or  other  party,  as  to  value,  quality,  condition,  etc.,  when  he  himself  has  equal  means 
of  ascertaining  the  truth,  and  no  artifice  is  resorted  to  in  order  to  prevent  him  from 
doing  so.^"  And  even  when  a  false  representation  is  not  connected  with  a  contract, 
and  is  made  with  intent  to  deceive,  and  does  in  fact  deceive,  the  negligence  of  the 
person  to  whom  it  is  made  in  relying  upon  it  may  be  so  great  as  to  preclude  him 
from  maintaining  an  action  of  deceit.  It  is  a  general  principle  "that  false  state- 
ments furnish  no  cause  of  action,  if  they  relate  to  matters  concerning  which  the 
persons  to  whom  they  are  made,  by  the  use  of  ordinary  care  and  attention,  can  ob- 
tain full  and  accurate  information.  The  law  will  not  relieve  those  who  suffer  dam- 
ages by  reason  of  their  own  negligence  or  folly ."^^ 

It  is  well  settled,  however,  that  this  principle  "does  not  call  for  more  than  rea- 
sonable diligence"  under  all  the  circumstances  of  the  particular  case.^^  It  does  not 
apply,  therefore,  where  false  representations  are  fraudulently  made  with  intent  that 
they  shall  be  relied  upon,  and  are  in  relation  to  facts  as  to  which  the  parties  have 
not  equal  present  means  of  knowledge,  or  are  of  such  a  character,  or  made  under 
such  circumstances,  as  to  reasonably  induce  the  party  to  whom  they  are  made  to 
forego  making  an  inquiry  or  examination  which  he  might  otherwise  make,  although 
such  inquiry  or  examination,  if  made,  would  result  in  discovery  of  the  truth.  In  such 
a  case  the  party  to  whom  the  representations  are  made  has  a  right  to  rely  upon  them, 
and  if  he  does  so,  and  is  deceived,  the  other  party  cannot  escape  liability  for  the 
fraud  by  saying  that  he  was  negligent  in  relying  on  the  representations  instead  of 
making  an  investigation  or  examination  for  himself.^^  "Where  one  assumes  to  have 
knowledge  upon  a  subject  of  which  another  may  well  be  ignorant,  and  knowingly 
makes  false  statements  regarding  it,  upon  which  the  other  relies,  to  his  injury,  we 
do  not  think  it  lies  with  him  to  say  that  the  party  who  took  his  word  and  relied 
upon  it  as  that  of  an  honest  and  truthful  man  was  guilty  of  negligence  in  so  doing, 
so  as  to  be  precluded  from  recovering  compensation  for  the  injury  which  was  in- 
flicted upon  him  under  cover  of  the  falsehood."^* 


9.  Marshall  v.  Buchanan,  35  Cal.  264,  95 
Am.   Dec.    95. 

10.  Negligence  induced  by  defendant's 
act  is  no  defense — Leicher  v.  Keeney  (Mo. 
App.)  72  S.  W.  145.  Knowledge  possessed 
by  plaintiff's  agent  will  not  be  imputed  to 
him — Lee  v.  Tarplin,  183  Mass.  52.  A  state- 
ment by  a  third  person  that  he  claimed 
part  of  the  land  sold  is  sufficient  to  put 
plaintiff  on  inquiry  as  to  defendant's  title — • 
Grosjean  v.  Galloway,  82  App.  Div.  (N.  T.) 
380.    Ante.  §  10,  notes  73  et  seq. 

11.  Silver  v.  Frazier,  3  Allen  (Mass.)  382. 
81  Am.  Dec.  662.  In  this  case  it  was  held 
that  the  owner  of  land  whose  agent  was  in- 
duced to  erect  a  house  at  a  different  place 
on  the  land  than  he  had  been  directed,  by 
the  false  representation  of  a  third  person 
as  to  the  boundary  of  the  land,  could  not 
maintain  an  action  of  deceit  against  such 
third  person,  where  there  was  nothing  to 
show  that  the  true  boimdary  was  peculiar- 
ly within  the  knowledge  of  the  latter.  See, 
also.  Hoist  V.  Stewart,  161  Mass.  516,  42  Am. 
St.   Rep.   442. 

12.  Holmes,  J.,  In  Whiting  v.  Price,  172 
Mass.  240,  70  Am.  St.  Rep.  262.  See,  also, 
Cottrill  V.  Krum,  100  Mo.  397.  18  Am.  St. 
Rep.    549,    wljere    it   was    held    error    for    the 


court  to  charge  the  jury  that  the  plalntiflC 
in  an  action  of  deceit  was  required  to  make 
"diligent  inquiry." 

13.  Pollock,  Torts  (Webb's  Ed.)  377,  378; 
Dobell  V.  Stevens,  3  Barn.  &  C.  623;  Central 
Ry.  Co.  V.  Kisch,  L.  R.  2  H.  L.  99;  Stewart 
V.  Stearns,  63  N.  H.  99,  56  Am.  Rep.  496.  Bur- 
dick's  Cas.  233;  Mead  v.  Bunn.  32  N.  Y.  275; 
Chrysler  v.  Canaday,  90  N.  T.  272,  43  Am. 
Rep.  166,  Bigelow's  Cas.  17;  Frank  v.  Brad- 
ley &  C.  Co.,  42  App.  Div.  (N.  Y.)  178; 
Townsend  v.  Felthousen,  156  N.  Y.  618; 
Eaton  V.  Winnie,  20  Mich.  156,  4  Am.  Rep. 
377;  Linington  v.  Strong,  107  111.  295;  Ends- 
ley  V.  Johns,  120  111.  469.  60  Am.  Rep.  572; 
Holland  v.  Anderson,  38  Mo.  55;  Caldwell 
V.  Henry,  76  Mo.  254;  Clark  v.  Edgar,  84  Mo. 
106.  54  Am.  Rep.  84;  Cottrill  v.  Krum,  100 
Mo.  397,  18  Am.  St.  Rep.  549;  David  v.  Park, 
103  Mass.  501,  Burdick's  Cas.  247;  Roberts 
V.  French,  153  Mass.  60.  25  Am.  St.  Rep.  611; 
Durkin  v.  Cobleigh,  156  Mass.  108,  32  Am. 
St.  Rep.  436;  Hoist  v.  Stewart,  161  Mass, 
516,  42  Am.  St.  Rep.  442;  Bean  v.  Herrick. 
12  Me.  262,  28  Am.  Dec.  176;  Wilson  v. 
Nichols,  72  Conn.  173;  Camp  v.  Camp,  2  Ala. 
532.  36  Am.  Dec.  423;  Lahay  v.  City  Nat. 
Bank,  15  Colo.  339,  25  Pac.  704,  22  Am.  St. 
Rep.    407;    Gunther    v.    Ullrich,    82    Wis.    222. 


§  12 


NECESSITY  FOR  DAMAGES. 


901 


Illustrations. — Thus  one  who  subscribes  for  shares  of  stock  in  a  corporation  on 
the  faith  of  false  representations  in  a  prospectus  is  not  precluded  from  treating  the 
representations  as  a  fraud  because  he  could  have  ascertained  the  truth  by  examining 
the  records  of  the  corporation.^^  And  a  purchaser  of  real  or  personal  property  may 
treat  as  a  fraud  false  and  fraudulent  representations  as  to  title,  incumbrances,  loca- 
tion, etc,  made  by  the  vendor  or  by  a  third  person,  if  they  were  intended  to  be 
relied  upon  and  were  in  fact  relied  upon,  although  he  might  have  disregarded  them 
and  ascertained  the  truth  by  examining  the  public  records.^**  If  the  seller  of  a  busi- 
ness falsely  and  fraudulently  overstates  the  amount  of  the  business  and  returns,  the 
buyer  is  not  precluded  from  maintaining  an  action  of  deceit  by  the  fact  that  he 
might  have  examined  the  books.^'^  The  purchaser  of  a  large  number  of  carpets  in 
a  furnished  house  is  not  precluded  from  maintaining  an  action  of  deceit  for  false 
representations  of  the  seller  as  to  the  number  of  yards,  made  as  of  his  own  knowl- 
edge, because  he  might  have  ascertained  the  truth  by  a  measurement.^^  And  the 
purchaser  of  a  house  in  the  vicinity  of  a  city  is  not  precluded,  by  the  fact  that  he 
might  have  made  independent  inquiry,  from  maintaining  an  action  against  a  broker 
for  false  and  fraudulent  representations  as  to  the  frequency  of  the  arrival  and  de- 
parture of  trains,  where  the  broker  falsely  purported  to  read  from  a  time-table.^® 

A  person  cannot  be  held  negligent  in  relying  upon  representations  instead  of 
making  inquiry  or  investigation,  where  he  has  no  reasonable  present  opportunity  to 
do  so.2» 

Impossihility. — The  fact  that  representations  were  incapable  of  being  made  o-ood 
does  not  prevent  them  from  constituting  a  fraud  for  which  an  action  of  deceit  may 
be  maintained,  if  the  plaintiff  did  not  know  of  the  impossibility,  and  in  fact  relied 
upon  them.^^ 

§  13.  The  necessity  for  damage. — To  maintain  an  action  for  deceit,  the  plain- 
tiff must  show,  not  only  that  he  relied  upon  the  false  and  fraudulent  representations 
of  the  defendant,  but  also  that  he  has  sustained  damage  by  reason  of  his  doing  so.^^ 


33  Am.  St.  Rep.  32;  Hoock  v.  Bowman,  42 
Neb.  80,  47  Am.  St.  Rep.  691;  Smith  v.  My- 
ers, 56  Neb.  503;  Hunt  v.  Barker,  22  R.  I. 
18,  84  Am.  St.  Rep.  812;  Strand  v.  Griffith 
(C.  C.  A.)  97  Fed.  854;  Roberts  v.  Holliday, 
10  S.  D.  576. 

14.  Cooley.  J.,  in  Eaton  v.  Winnie,  20 
Mich.   156,   4  Am.   Rep.  377. 

l.>.  Central  Ry.  Co.  v.  Kisch,  L.  R.  2  H.  L. 
99. 

16.  Parham  v.  Randolph,  4  How.  (Miss.) 
435,  35  Am.  Dec.  403;  David  v.  Park.  103 
Mass.  501,  Burdick's  Cas.  247;  Grimes  v. 
Kimball,  3  Allen  (Mass.)  518;  Holland  v. 
Anderson,  38  Mo.  55;  Clark  v.  Edgar,  84  Mo. 
106,  54  Am.  Rep.  84:  Kiefer  v.  Rogers,  19 
Minn.  32;  Hunt  v.  Barker,  22  R.  I.  18,  84 
Am.  St.  Rep.  812;  Dodge  v.  Pope,  93  Ind. 
481;  V\'est  V.  "^'right,  98  Ind.  335;  Evans  v. 
Forstall.  58  Miss.  30;  W^etaer  v.  Weber,  47 
Mich.    569;    Fenley   v.   Moody,    104   Ga.    790. 

"It  is  established  law  that  a  false  repre- 
sentation made  for  a  fraudulent  purpose 
may  be  relied  upon  by  the  party  to  whom 
It  is  made,  although  the  representation  is 
of  a  fact  contained  in  a  public  record" — 
Backer  v.  Pyne,  130  Ind.  288,  30  Am.  St. 
Rop.  231.  See,  also,  Hoock  v.  Bowman,  42 
Neb.   80,  47  Am.  St.  Rep.   691. 

In  Campbell  v.  Hillman,  15  B.  Mon.  (Ky.) 
508.  61  Am.  Dec.  195.  it  was  held  that  an 
agent  was  not  relieved  from  liability  for  a 
false  and  fraudulent  representation  as  to 
the    title    of    his    principal   to    property   sold, 


by  the  fact  that  he  Informed  the  purchaser 
that  his  principal  derived  title  under  a  will, 
which  the  purchaser  had  sufficient  time  and 
opportunity  to  examine,  where  the  purchase 
was  made  on  the  faith  of  the  representation, 
and  it  was  calculated  to  induce  belief  and 
prevent  further  inquiry.  And  in  Clark  v. 
Edgar,  84  Mo.  106,  54  Am.  Rep.  84,  it  was 
held  that  the  purchaser  of  mortgage  bonds 
of  a  corporation  was  not  precluded  from 
maintaining  an  action  of  deceit  against  the 
directors  for  a  false  and  fraudulent  repre- 
sentation that  the  bonds  were  secured  by  a 
first  mortgage  by  the  fact  that  he  could  have 
known  the  truth  if  he  had  examined  the  rec- 
ords. 

17.  Dobell  V.   Stevens,   3  Barn.  &  C.   C23. 

18.  Lewis  V.  Jewell,  151  Mass.  345,  21  Am. 
St.   Rep.   454. 

19.  Hoist  v.  Stewart,  161  Mass.  51G,  42 
Am.  St.  Rep.  442. 

20.  Failure  to  examine  records  in  a  dis- 
tant place — David  v.  Park,  103  Mass.  601 
Burdick's  Cas.  247. 

Compare,  however,  Saunders  v.  Hatter- 
man,   2   Ired.   L.    (N.   C.)    32,   37  Am.    Dec.    404. 

Failure  to  examine  land  which  is  covere^i 
by  snow  or  water — Martin  v.  Jordan,  60  Me. 
531;   Jackson  v.  Armstrong,  50  Mich.   65. 

21.  McGar  v.  Williams,  26  Ala.  469,  62  Am. 
Dec.  739;  Kendall  v.  Wilson.  41  Vt.  567  (sale 
of  perpetual   motion   machine). 

22.  Vernon  v.  Keys.  12  East,  632,  4  Taunt. 
488;    Smith    v.    Chadwick.    9    App.    Cas.    187- 


9U2 


DECEIT. 


13 


"Fraud  without  damage,  or  damage  without  fraud,  gives  no  cause  of  action,  but 
where  these  two  concur,  an  action  lies."^^^  It  is  also  necessary  that  the  damage  sus- 
tained by  the  plaintiff  shall  have  been  the  natural  and  proximate,  and  not  the  re- 
mote consequence  of  the  false  and  fraudulent  representations,-*  and  such  as  can  be 
clearly  defined  and  ascertained." 

It  has  been  held  that,  in  legal  contemplation,  a  creditor  sustains  no  damage 
from  false  representations  by  which  he  is  induced  not  to  attach  property  of  his 
debtor ;  although  another  creditor  afterwards  attaches  the  same,  and  the  opportunity 
of  thereby  collecting  his  debt  is  thus  lost  to  the  first  creditor.^^  But  the  soundness 
of  this  decision  may  well  be  doubted."  ^Tiere  a  person  is  prevented  from  fulfilling 
a  contract  with  another,  by  which  he  would  have  profited,  by  the  false  and  fraudu- 
lent representations  of  a  third  person  made  for  such  purpose,  he  sustains  a  damage 
for  which  he  may  maintain  an  action  against  the  latter ;  and  this  is  true  though  the 
contract  may  have  been  unenforceable  under  the  statute  of  frauds.^^ 

S  13.  Actions.^^ — A  vendee  may  waive  his  right  of  rescission  and  sue  for  de- 
ceit.«» 


Ming  V.  Woolfolk,  116  U.  S.  599;  Hutchlns  v. 
Hutching,  7  HiU  (N.  Y.)  104.  Bigelow's  Cas. 
76;  Alden  v.  Wright,  47  Minn.  225;  Freeman 
V.  Venner,  120  Mass.  424;  Dawe  v.  Morris, 
149  Mass.  188,  14  Am.  St.  Rep.  404;  GilfiUen  v. 
Moorhead,  73  Conn.  710;  Bartlett  v.  Blaine, 
83  111.  27,  25  Am.  Rep.  346;  Byard  v.  Holmes, 
34  N.  J.  Law,  296;  Jordan  v.  Pickett,  78  Ala. 
331;  Fuller  v.  Hodgdon,  25  Me.  243;  Nye  v. 
Merriam.  35  Vt.  438:  Bank  of  Atchison  Coun- 
ty V.  Byers,  139  Mo.  627;  Freeman  v.  McDan- 
iel,  23  Ga.  354;  Grosjean  v.  Galloway,  82  App. 
Div.   (N.  Y.)    380. 

The  Michigan  Statute  (Comp.  L.  §  10421) 
giving  a  remedy  in  assumpsit  does  not  dis- 
pense with  the  necessity  of  resultant  dam- 
age—In re  Pennewell  (C.  C.  A.)  119  Fed. 
139. 

It  Is  sufficient  and  proximate  damage  that 
goods  were  obtained  long  after  a  credit  was 
induced  by  misrepresentations — Levy  v. 
Abramson,    81   N.    Y.    Supp.    344. 

A  false  representation  by  the  seller  of 
property  that  there  is  no  mortgage  thereon 
will  not  sustain  an  action  where  he  has  the 
mortgage  released  as  soon  as  his  attention 
Is  called  to  it.  and  no  injury  results — John- 
son V.  Seymour,  79  IMich.  156. 

A  stockholder  of  a  corporation  suffers  no 
actionable  wrong  in  being  induced  by  false 
representations  to  surrender  a  part  of  his 
stock  at  less  than  its  actual  value,  where  all 
the  other  stockholders  have  surrendered  a 
proportionate  amount  of  their  stock  at  the 
same  valuation — Potter  v.  Necedah  Lumber 
Co.,  105  "Wis.   25. 

A  person  who  is  induced  by  false  and 
fraudulent  representations  to  indorse  a 
promissory  note  is  not  damaged  if  the  maker 
pays  the  same,  or  if  he  is  not  compelled  to 
pay  it;  and  it  has  been  held,  therefore,  that 
he  cannot  maintain  an  action  of  deceit  un- 
til he  has  paid  it.  Freeman  v.  Venner,  120 
Mass.   424. 

But  it  has  been  held  that  an  action  to  re- 
cover damages  for  fraudulently  procuring  a 
loan  on  inadequate  security  may  be  main- 
tained as  soon  as  the  loan  is  made,  the  meas- 
ure of  damages  being  the  difference  be- 
tween the  amount  of  the  loan  and  the  value 
of  the  securities  at  the  date  ^t  the  loan, 
with  interest — Briggs  v.  Brushaber,  43  Mich. 
330,   38  Am.  Rep.   187. 


A  wife  sustains  damage  for  which  she 
may  maintain  an  action  of  deceit  where  she 
is  Induced  by  false  and  fraudulent  repre- 
sentations to  join  with  her  husband  in  a 
conveyance  releasing  her  inchoate  right  of 
dower — Simar  v.  Canaday,  53  N.  Y.  298,  13 
Am.   Rep.   523. 

A  man  who  is  Induced  to  marry  a  preg- 
nant woman  by  the  false  and  fraudulent  rep- 
resentation of  the  man  by  whom  she  is 
pregnant,  sustains  a  damage  In  the  loss  of 
consortium,  if  for  no  other  reason,  which 
will  support  an  action  of  deceit — Kujek  v. 
Goldman,  150  N.  Y.   176,   55  Am.  St.  Rep.   670. 

A  party  is  not  defrauded  when  induced  by 
artifice  to  do  that  Tvhich  the  law  would  have 
compelled  him  to  do — Deobold  v.  Oppermann, 
111   N.  Y.   531,  7  Am.  St.  Rep.   760. 

23.  Croke,  J.,  in  Bally  v.  Merrell,  3  Bulst. 
05. 

34.  Barry  v.  Croskey,  2  Johns.  &  11.  1; 
Smith  V.  Chadwick,  9  App.  Cas.  187;  Silver  v. 
Frazier,  3  Allen  (Mass.)  382,  81  Am.  Dec. 
G62;  Lamb  v.  Stone.  11  Pick.  (Mass.)  527; 
Bradley  v.  Fuller,  118  Mass.  239;  Dawe  v. 
Morris,  149  Mass.  188,  14  Am.  St.  Rep.  404; 
Jex  V.  Straus,  122  N.  Y.  293. 

25.  Dawe  v.  Morris,  149  Mass.  188,  14  Am. 
St.    Rep.    404. 

26.  Bradley  v.  Fuller,  118  Mass.  239.  See- 
also,  Austin  v.  Barrows,  41  Conn.  287. 

27.  See  Kelsey  v.  Murphy.  26  Pa.  78,  8  4. 
See,  also.  Alexander  v.  Church.  53  Conn.  561. 
sustaining  an  action  for  deceit  for  false  rep- 
resentations by  the  owner  of  a  building 
that  he  had  paid  in  full  under  a  building 
contract,  whereby  a  subcontractor  was  in- 
duced not  to  perfect  his  lien. 

If  a  creditor  who  has  actually  levied  an 
execution  or  attachment  upon  his  debtor's 
property  is  induced  by  the  false  and  fraudu- 
lent representations  of  the  debtor  or  a  third 
person  to  release  the  same  and  forbear  en- 
forcement of  his  claim,  and  thereby  loses  his 
opportunity  to  collect  the  same,  he  may 
maintain  an  action  of  deceit — Marshall  v. 
Buchanan.  35  Cal.  264.  95  Am.  Dec.  95;  Brad- 
ley v.  Fuller,  118  Mass.   239. 

28.  Benton  v.  Pratt,  2  "Wend.  (N.  Y.)  385, 
20  Am.  Dec.  623.  See.  also.  Rice  v.  Slanley. 
66  N.  Y.  82,  23  Am.  Rep.  30. 

.      29.     An    exhaustive    treatment    of    practice 
in    actions    for    deceit    is    impracticable    be- 


§  2 


DEDICATION. 


*J03 


Conditions  precedent. — It  is  not  usually  necessary  to  put  defendant  in  statu 
quo/^  nor  repudiate  the  transaction.^^ 

Pleading. — The  declaration  must  show  that  the  representation  was  of  a  matter 
of  fact,^^  that  defendant  knew  of  its  falsity/*  and  that  plaintiff  relied  thereon.^^ 
Evidence. — Kulings  as  to  admissibilit}^  of  evidence  are  found  in  the  note.^® 
Question  for  jurTj. — Wliether  plaintiff  relied  on  the  representations/^  whether 
he  was  justified  in  so  doing/®  and  whether  he  was  negligent  therein/"  are  for  the 
jury.  Comparatively  slight  circumstances  authorize  the  submission  of  the  issue  to 
the  jury.^" 

Instructions. — Instructions  passed  on  are  found  in  the  note.*^ 
Damages. — The  measure  of  damages  for  fraud  inducing  a  purchase  is  the  differ- 
ence between  the  value  of  the  property  and  what  it  would  have  been  worth  had  the 
representations  been  true.** 

DEDICATION. 


§  1.     Dedication  or  Conveyance. 
§  2.     Who  May  Dedicate. 

§  3.     Mode  of  Dedication. — In  General;  In- 
tention; Acceptance;  Sale  with  Reference  to 


Plat;  Plats  and  Maps;  By  Corporations;  Evi- 
dence. 

§  4.     Bffect  of  Dedication. 


§  1.  Dedication  or  conveyance. — A  deed  with  full  warranties  of  title  reciting 
that  it  is  given  in  consideration  for  the  location  of  a  county  seat  thereon  and  in  ful- 
fillment of  the  promise  of  the  grantors  to  make  the  conveyance  in  case  such  location 
should  be  adopted  conveys  the  property  in  fee  simple,  and  is  not  a  dedication  of  the 
land  to  the  use  of  the  public  in  general.*^ 

§  2.  Wlio  may  dedicate. — A  dedication  by  the  state  is  as  binding  as  a  dedica- 
tion by  individuals.**     School  commissioners  in  Alabama  may  plat  school  lands  and 


cause  Including  so  much  that  belongs  in 
general  practice  heads.  The  current  cases 
are  here  presented  to  preserve  the  uniform 
practice  of  presenting  all  current  cases.  A 
suit  to  recover  purchase  price  and  expenses 
alleging  that  the  goods  were  worthless 
though  fraudulently  represented  to  be  valu- 
able is  in  deceit  within  statute  regulating 
venue — Howe  Grain  &  Mercantile  Co.  v.  Gait 
(Tex.  Civ.  App.)   73  S.  W.  828. 

30.  Leicher  v.  Keeney  (Mo.  App.)  72  S.  W. 
145. 

31.  Brown  v.  Lyon  (Miss.)  33  So.  284; 
Hurlbert  v.  Kellogg  Lbr.  Co.,  115  TVis.  225. 

32.  Foreclosure  of  a  mortgage  given  in  a 
trade  procured  by  fraud  is  not  an  accord 
and  satisfaction — Lee  v.  Tarplin,  183  Mass. 
52.  Acceptance  of  a  deed  does  not  wa.ive 
false  representations  as  to  amount  of  a 
mortgage  to  be  assumed  by  purchaser — 
Hutchinson   v.  Gorman    (Ark.)    73   S.   W.    793. 

33.  Declaration  sufficient  as  a  whole.  Fraud- 
ulent representations  as  to  title  to  logs — 
Hurlbert  v.  Kellogg  Lbr.  Co.,  115  Wis.  225. 
Fraudulent  representations  as  to  existence  of 
tax  title — Koepke  v.  M"interfleld,  116  Wis.  44. 
Fraudulent  representations  as  to  size  of 
tract  of  land — Leicher  v.  Keeney  (Mo.  App.) 
72  S.  W.  145. 

34.  Declaration  insufficient — Northwestern 
S.  S.  Co.  V.  Dexter  Horton  &  Co.,  29  T\^ash. 
565,  70  Pac.  59. 

33.  Oliver  v.  Hubbard,  29  Ind.  App.  639. 
Circumstances  showing  relation  between 
representations  and  damage  should  be  al- 
leged— Northwestern  Mut.  Life  Ins.  Co.  v. 
Breautigam  (N.  J.  Sup.)  54  Atl.  228.  A  gen- 
eral   averment    that    plaintiff    relied    on    the 


representations  is  sufficient — Quinby  v.  Ayre 
(Neb.)   95  N.  W.  464. 

36.  Evidence  depreciating  the  value  of 
the  goods  given  by  plaintiff  in  exchange  is 
inadmissible  in  the  absence  of  a  counter- 
claim— Chase  v.  Rusk,  90  Mo.  App.  25.  The 
possibility  of  their  condition  being  the  in- 
ducing motive  rather  than  the  representa- 
tions being  speculative — Lee  v.  Tarplin,  183 
Mass.  52.  Defendant  may  show  that  he  act- 
ed under  advice  of  counsel — Warfield  v. 
Clark.  118  Iowa,  69.  A''arianoe:  Conspiracy 
may  be  proved  though  not  alleged — Butler 
V.  Duke,   39  Misc.    (N.   Y.)    235. 

37.  ■^''arfield  v.  Clark,   118  Iowa,   69. 

38.  Chase  v.   Rusk,   90  Mo.  App.   25. 

39.  Lee  v.  Tarplin,  183  Mass.  52. 

40.  Mosby  v.  McKee,  etc..  Com.  Co.,  91 
Mo.  App.   500. 

41.  An  instruction  leaving  the  sufficiency 
of  the  declaration  to  the  jury  is  erroneous — 
Samuels  v.  Fuller,  104  111.  App.  623.  In- 
structions held  not  to  confine  truth  of  repre- 
sentations too  closely  to  time  of  making 
them — Von  Boeckmann  v.  Loepp  (Tex.  Civ, 
App.)    73   S.   W.   849. 

43.  Warfleld  v.  Clark,  118  Iowa,  69;  Lee 
V.  Tarplin.  183  Mass.  52. 

43.  First  German  Reformed  Church  v. 
Summit  County  Com'rs,   23  Ohio  Circ.  R.  553. 

44.  In  this  case  the  state  of  Pennsylvania 
laid  out  the  town  of  Allegheny  under  an  Act 
which  provided  that  the  streets,  lanes  and 
alleys  should  be  common  highways  forever, 
and  some  fifty  years  later  issued  a  patent 
covering  some  of  the  streets — Snowden  v. 
Loree,  122  Fed.   493. 


904 


DEDICATION. 


§3 


dedicate  the  streets  to  the  public.*'  A  valid  dedication  may  not  be  made  by  a  rco'  t- 
gagor,*«  or  lessor  leasing  same  with  the  right  in  the  lessee  to  purchase.*^  A  corpo- 
ration may  dedicate  some  of  its  land  to  public  use  for  a  highway,  if  it  do  not  ma- 
terially interfere  with  the  accomplishment  of  the  purposes  of  its  incorporation/* 

§  3.  Mode  of  dedication.  In  general— Land  may  be  dedicated  to  public  use 
either  in  accordance  with  the  statute  or  by  common-law  dedication.*'  The  follow- 
ing steps  are  necessary  to  the  latter,— first,  a  survey  or  other  segregation  of  the  land 
intended  to  be  devoted  to  public  use ;  second,  the  making  of  a  plat  representing  the 
division  of  the  tract ;  and  third,  the  sale  of  land  so  surveyed  by  reference  to  such 
plat.  As  a  condition  precedent  to  a  common-law  dedication  which  is  implied  from 
the  sale  of  lots  by  reference  to  a  plat  thereof,  exhibited  or  improperly  recorded,  there 
must,  in  the  absence  of  an  acceptance,  have  been  either  a  survey  of  the  land  or  some 
physical  evidence  upon  the  ground,  to  indicate  the  location  and  extent  of  the  ease- 
ment intended  by  the  donor  to  be  devoted  to  the  use  of  the  public.'*"* 

Intention.— Dedication  of  ground  to  the  public  is  a  question  of  intention,"  and 
this  is  particularly  the  case  where  it  is  sought  to  establish  a  common-law  dedication.=^= 
Acts  of  the  owner  clearly  manifesting  an  intention  to  dedicate  are  sufficient.^^  The 
intention  may  sometimes  be  inferred  from  the  shape  of  the  land,  its  situation,  dimen- 
sions, and  the  like." 

The  mere  fact  that  landowners  acquiesce  in  or  omit  to  protest  against  the  use 
of  a  highway  by  travelers,^^  or  put  down  sidewalks  either  volimtarily  or  by  order 
of  the  citv,  to  enable  persons  passing  on  the  street  to  use  it,  is  not  conclusive  evi- 
dence of  intent  to  dedicate.^*  Where  the  boundaries  of  a  village  include  all  land 
to  the  low-water  mark  on  a  navigable  stream,  the  owner  of  land  platting  an  addition 


45.  Laws  Ala.  1828.  p.  31— Roberts  v.  Mat- 
thews (Ala.)   34  So.  624. 

46.  Newport  News  &  O.  P.  Ry.  &  Elec. 
Co.  V.  Lake  (Va.)  43  S.  E.  566. 

47.  Town  of  Manitou  v.  International 
Trust  Co.  (Colo.)  70  Pac.  757. 

48.  Hast  V.  Piedmont  &  C.  R.  Co.,  52  W. 
Va.   396. 

49.  Nodine  v.  City  of  Union,  42  Or.  613,  72 
Pac.  582. 

50.  Nodine  v.  City  of  Union,  42  Or.  613, 
72  Pac.  582.  There  is  an  insufficient  com- 
mon law  dedication  of  streets  where  the 
plat  does  not  show  the  size  of  lots  or  the 
width  of  the  streets,  and  does  not  refer  to  a 
survey  or  any  natural  object  nor  fix  an  ini- 
tial point  from  which  a  survey  could  be  ex- 
tended and  there  was  no  acceptance  for 
over  30  years — Id.  Public  user  and  control 
must  be  long  enough  to  presume  a  gift — 
Georgia  R.  &  Banking  Co.  v.  City  of  At- 
lanta (Ga.)    45   S.  E.   256. 

51.  Lonaconing,  M.  &  P.  Ry.  Co.  v.  Con- 
solidation Coal  Co.,  95  Md.  630;  Guttery  v. 
Glenn,  201  111.  275;  Langan  v.  Whalen  (Neb.) 
93  N.  W.  393. 

32.     Russell  V.  City  of  Lincoln,  200  111.  511. 

53.  Lonaconing,  M.  &  F.  Ry.  Co.  v.  Con- 
solidation Coal  Co.,  95  Md.  630;  Guttery  v. 
Glenn,  201  111.  275;  Langan  v.  Whalen  (Neb.) 
93  N  "W.  393;  Town  of  Manitou  v.  Interna- 
tional Trust  Co.  (Colo.)  70  Pac.  757.  Cor- 
respondence of  unmarked  strip  with  similar 
strip,  which  as  they  lie  parallel  form  a 
street — Thompson  v.  Maloney.  199  111.  276. 
Laying  out  a  cut  ofE  and  closing  up  an  old 
road— Lonaconing.  M.  &  F.  Ry.  Co.  v.  Con- 
solidation  Coal  Co.,   95   Md.    630. 

Deed  referring  to  a  street  held  to  show  no 


intent  to  dedicate  an  extension  of  such 
street — Atlantic  City  v.  Groff,  68  N.  J.  Law, 
670.  Claiming  compensation  disproves  in- 
tent— Langan  v.  W'halen  (Neb.)  93  N.  W. 
393.  Where  the  plat  of  a  public  square  in- 
tersecting streets  did  not  show  that  the 
streets  should  cross  the  square,  thtre  was 
no  intent  to  dedicate  streets  within  the 
square — Guttery  v.  Glenn,  201  111.  275.  The 
word  "reserved"  written  in  a  plat  sho'w  s  an 
intent  not  to  dedicate  the  part  so  marked — 
Cleveland  v.  Bergen  Bldg.  &  Imp.  Co.  (N.  J. 
Eq.)  55  Atl.  117.  Where  a  railroad  company 
occupies  a  street  -which  is  a  public  highway 
in  an  unincorporated  village,  and  acquires  a 
lot  with  intent  to  open  through  it  a  way  in 
place  of  the  street,  but  does  nothing  more 
to  evince  a  dedication  than  to  tear  down  the 
fence  around  the  lot  and  allow  its  use  by  the 
public  for  a  way.  this  does  not  constitute  an 
irrevocable  dedication — Hast  v.  Piedmont  & 
C.  R.  Co.,  52  T\'.  Va.  396.  An  intention  that 
streets  on  a  plat  should  not  be  dedicated  to 
the  public,  is  shown  where  the  plat  itself 
contains  a  statement  that  the  streets  were 
merely  for  convenience  in  description  and 
without  intent  to  dedicate  same  to  the  pub- 
lic, and  this  effect  is  not  changed  by  a  later 
contrary  declaration,  as  a  mere  declaration 
of  a  grantor  cannot  add  to  or  take  from  the 
subject  matter  of  a  grant — In  re  City  of  New 
York,  83  App.  Div.   (N.  T.)   513. 

54.  Coe  College  v.  Cedar  Rapids  (Iowa) 
95  N.  W.   267. 

55.  Postal  v.  Martin  (Neb.)  95  N.  W.  8. 
A  dedication  of  a  road  by  the  proprietor  is 
not  shown  by  fifteen  years  use  of  the  road 
by  the  public  with  the  knowledge  and  ac- 
quiescence of  the  land  owner — Hartley  v, 
VermilV.on   (Cal.)   70  Pac.  273. 


§3 


MODE  OF  DEDICATION. 


905 


along  such  stream  and  laying  out  the  road  along  the  banks  thereof  will  be  presumed 
to  have  intended  to  dedicate  all  the  land  lying  between  the  street  and  the  river," 
The  question  of  intention  to  dedicate  is  for  the  jury,  where  the  fact  is  to  be  deter- 
mined from  the  disputed  circumstances.^^ 

Acceptance. — The  rights  of  the  public  resting  in  a  dedication  depend  on  ac- 
ceptance express  or  implied  by  the  public/^  which  must  be  within  a  reasonable 
time.*"*  An  acceptance  of  a  street  is  peculiarly  necessary  since  it  may  be  a  public 
burden.®^  Until  there  has  been  an  acceptance,  the  act  of  the  proprietor  in  selling 
lots  with  reference  to  the  dedication  amounts  to  a  mere  offer  to  dedicate  and  may 
be  withdrawn,^2  ^j^^  i^^  owners  may  close  streets  included  in  their  premises,  where 
they  allow  other  lot  owners  necessary  ingress  and  egress  to  their  property.''^  A  city 
is  estopped  to  accept  a  dedication,  where  it  levied  assessments  against  the  property.''* 
After  the  acceptance  of  a  dedication,  it  is  irrevocable.^^  Wliere  there  is  a  "ood  com- 
mon-law dedication,  the  grantor  may  not  withdraw  the  dedication,  though  there  has 
been  no  acceptance  of  it.^® 

There  is  a  good  acceptance,  where  the  public  authorities  take  possession  of  lands 
dedicated  to  the  public,®^  or  where  there  is  a  recognition,*'*  though  not  a  formal 
one,**®  of  the  public  rights.  Where  the  land  is  dedicated  by  allowing  the  public  use 
of  the  property,  acceptance  and  user  by  the  public  is  sufficient.''*'     In  Ohio   the  ac- 


56.  Webber  v.  City  of  Toledo,  23  Ohio 
Giro.  R.  237. 

57.  City  of  Uniontown  v.  Berry,  24  Ky.  L. 
R.  1692,  72  S.  W.  295;  reliearing  24  Ky.  L..  R. 
2248,  73  S.  W.  774. 

58.  Langan  v.  Wiialen  (Neb.)  93  N.  W. 
393. 

59.  Town  of  Manitou  v.  International 
Trust  Co.  (Colo.)  70  Pac.  757;  Georgia  R.  & 
Banking  Co.  v.  City  of  Atlanta  (Ga.)  45  S.  E. 
256;  Hast  v.  Piedmont  &  C.  R.  Co.,  52  W.  Va. 
396.  Ky.  Acts  1902,  p.  172,  c.  76 — Schuster 
V.  Barber  Asphalt  Pav.  Co.,  24  Ky.  L.  R.  2346, 
74  S.  W.  226;  Pease  v.  Patterson  &  S.  L. 
Traction  Co.  (N.  J.  Law)  54  Atl.  524;  Lunk- 
enheimer  v.  Cincinnati,   23  Ohio  Circ.  R.   617. 

60.  Tow^n  of  Manitou  v.  International 
Trust  Co.  (Colo.)  70  Pac.  757.  Where  a  dedi- 
cation of  lands  for  street  purposes  w^as  not 
accepted  by  the  city  for  thirty  years,  the 
city  will  then  be  estopped  to  assert  any 
right  to  open  streets  that  have  been  fenced 
in  for  a  good  sliare  of  tlie  period — Schooling 
V.  City  of  Harrisburg,  42  Or.  494,  71  Pac. 
605. 

61.  Georgia  R.  &  Banking  Co.  v.  City  of 
Atlanta   (Ga.)   45   S.  E.  256. 

63.  Town  of  Manitou  v.  International 
Trust  Co.   (Colo.)   70  Pac.  757. 

63.  State  V.  Hamilton  (Tenn.)  70  S.  W. 
619. 

64.  Lunkenheimer  v.  Cincinnati,  23  Ohio 
Circ.  R.  617.  Where  it  was  not  shown  that 
a  town  ever  claimed  a  certain  park  contain- 
ing mineral  springs  but  had  required  pay- 
ment of  taxes  thereon,  the  fact  that  the 
town  contributed  money  to  keep  the  springs 
in  repair  because  the  public  was  permitted 
to  use  them  will  not  amount  to  a  dedication 
and  acceptance  of  the  land  as  a  public  park 
— Town  of  Manitou  v.  International  Trust 
Co.   (Colo.)   70  Pac.  757. 

G.'.  Spring  V.  Pittsburg,  204  Pa.  530;  Oet- 
tinger  v.  District  of  Columbia,  18  App.  D.  C. 
37.5. 

OC  Russell  V.  City  of  Lincoln,  200  111. 
511;  Alden  Coal  Co.  v.  Challis,  200  111.  222. 
There  is  an  acceptance  of  an  impliea  dedica- 


tion of  a  street,  where  the  owners  of  land  In 
a  city  graded  the  street,  built  the  sidewalk, 
had  telegraph  poles  strung  along  it  and 
erected  a  hotel  fronting  on  the  street  which 
had  been  used  as  such  for  two  or  three 
years — City  of  Hammond  v.  Maher,  30  Ind 
App.   286. 

67.  Town  of  Manitou  v.  International 
Trust  Co.  (Colo.)  70  Pac.  757.  The  attempt 
of  a  city  to  open  a  street  embraced  in  a 
dedication  amounts  to  an  acceptance  thereof. 

68.  Uhlefelder  v.  City  of  Mt.  Vernon,  76 
App.  Div.  (N.  Y.)  349;  Russell  v.  City  of  Lin- 
coln, 200  111.  511. 

69.  Heffron  v.  Galveston  (Tex.  Civ.  App.) 
75  S.  W.  370.  There  is  a  valid  dedication  of 
land  for  a  public  market  where  a  plat  divid- 
ing the  city  into  lots  designates  a  square  for 
that  purpose  and  the  city  for  more  than  40 
years  cared  for  and  preserved  the  property 
and  lots  were  sold  with  reference  to  the 
plat  though  there  was  no  formal  acceptance, 
lb.  If  a  landowner  dedicate  a  highway  over 
his  land  for  public  use  by  a  valid  dedication 
binding  on  him,  and  it  is  accepted  by  the 
public  by  general  use  of  the  way,  it  be- 
comes a  highway,  as  between  the  dedicator 
and  public,  beyond  his  revocation  of  the 
dedication,  though  the  dedication  is  not  ac- 
cepted by  the  county  court;  but  this  does  not 
charge  the  county  with  maintenance  or  re- 
pair of  the  highway — Hast  v.  Piedmont  &  C. 
R.  Co.,  52  W.  Va.  396. 

70.  Wright  v.  Oberlin,  23  Ohio  Circ.  R. 
509.  There  is  an  acceptance  of  an  owner's 
implied  dedication  of  a  street  without  proof 
of  a  formal  acceptance,  where  the  owner  of 
the  land  in  a  city  graded  a  street,  built  side- 
walks, had  telegraph  poles  strung  along  it 
and  erected  a  hotel  fronting  on  the  street, 
vv^hich  had  been  used  extensively  for  a  num- 
ber of  years — City  of  Hammond  v.  Maher, 
30  Ind.  App.  286.  Where  the  public  used  a 
cut  oft  laid  out  instead  of  an  old  road,  with 
the  knowledge  of  the  owner  and  without  any 
objection  on  his  part  and  same  was  im- 
proved at  the  public  expense,  there  was  a 
sufficient    dedication    of    the    cut    off    to    the 


906 


DEDICATION. 


§  3 


ceptance  of  a  -dedication  by  an  ordinance  general  in  its  terms  is  held  insufficient,  as 
more  than  a  general  acceptance  must  be  shown/^  The  laying  out  of  an  extension 
of  a  street  under  legislative  authority  does  not  amount  to  an  acceptance  of  a  way 
previously  dedicated,  where  the  land  used  is  not  identical  with  that  actually  laid 
out.''''  There  is  a  refusal  to  accept  a  way  previously  dedicated  not  identical  with 
that  actually  laid  out,  where  the  city  on  laying  out  the  way  allows  substantial  dam- 
ages to  the  abutting  owner.'^^  On  the  acceptance  of  a  dedicated  way  by  a  city, 
nominal  damages  only  may  be  allowed  to  the  abutting  owners.'* 

Sale  with  reference  to  plat. — If  an  owner  of  land  lays  it  out  into  streets,  lots, 
and  alleys,  and  sells  lots  with  reference  to  such  streets  and  alleys,  by  plat  or  other- 
wise, it  is  a  dedication  of  such  streets  and  alleys  irrevocable  by  him,  and  makes  them 
public  as  to  all  lot  owners,  and  consequently  as  to  the  general  public.'^^  Where  the 
contract  for  the  sale  of  property  refers  to  a  map  on  which  streets  are  shown,  there 
is  an  assurance  by  the  vendor  that  the  streets  have  been  dedicated  to  public  use,''® 
which  estops  the  grantor  of  land  to  deny  the  dedication  of  a  street  along  the  side  of 
a  lot  conveyed.''^ 

Plats  and  maps. — Statutes  governing  dedication  generally  require  the  making 
of  a  plat  and  provide  for  its  acknowledgment,  certification,  and  record.''*  A  statu- 
tory plat  should  mark  the  comers  of  the  lots  and  show  the  width  of  streets.'^  The 
plat  should  be  acknowledged  by  the  owner/"  and  not  by  his  agent.*^  An  approval 
by  a  clerk  in  a  public  office  is  insufficient  where  the  law  requires  approval  by  his 
principal.®^  In  New  York,  it  is  held  that  the  filing  of  maps  on  which  a  street  was 
laid  out  will  not  make  the  street  a  public  highway  so  far  as  the  public  is  concerned.®' 

A  mere  plat  of  land  upon  paper  laying  off  streets,  blocks,  and  houses  in  a  city 
is  not  itself  a  dedication  of  the  street  to  public  use.®*  To  constitute  a  common-law 
dedication  of  land  to  public  purposes  by  means  of  a  plat,  the  same  certainty  of  de- 
scription is  required  as  in  other  forms  of  conveyance.®*     Long  use  of  an  unacknowl- 


public  and  acceptance  thereof — Lonaconlng, 
M.  &  P.  Ry.  Co.  V.  Consolidation  Coal  Co.,  95 
Md.   630. 

71.  Cox  V.  City  of  Lancaster,  24  Ohio  Circ. 
R.  265. 

72,  73,  74.  Chapin  V.  Maine  Cent.  R.  Co.,  97 
Me.  151. 

75.  Hast  V.  Piedmont  &  C.  R.  Co.,  52  W. 
Va.  396:  Town  of  Manitou  v.  International 
Trust  Co.  (Colo.)  70  Pac.  757;  Nodine  v.  City 
of  Union,  42  Or.  613.  72  Pac.  582;  Schooling 
V.  City  of  Harrisbvirg,  42  Or.  494,  71  Pac. 
605.  Where  the  inhabitants  of  a  town  ac- 
quire property  interests  with  reference  to 
streets  duly  laid  out  and  establish  homes 
and  build  up  trade  within  the  town,  the 
owner  of  the  property  may  not  thereafter 
deny  the  dedication  either  as  against  the 
inhabitants  or  the  public  at  large  though  no 
plat  of  the  town  -was  made  and  title  re- 
mained in  the  original  owner — Alden  Coal 
Co.  V.  Challis.  200  111.  222.  The  laying  out  of 
lots  fronting  on  streets  connecting  with 
public  highways  and  renting  the  same  to  in- 
habitants of  a  village,  amounts  to  a  dedica- 
tion of  the  streets  to  the  public  use  during 
the  time  the  lots  are  so  rented  and  occupied 
— Alden  Coal  Co.  v.  Challis.  103  111.  App.  52. 
Where  a  camp  meeting  association  has  plat- 
ted its  grounds  showing  lots  and  the  roads 
and  streets  to  be  used  for  access  thereto  and 
has  leased  same  for  a  long  term  of  years, 
there  is  a  dedication  of  the  streets  and  roads 
to  the  use  of  the  lessee,  and  the  ac^'sociation 


cannot  maintain  trespass  against  a  person 
using  one  of  the  roads  to  deliver  merchan- 
dise to  lessees  at  their  request — ThousaLd 
Island  Park  Ass'n  v.  Tucker,  173  N.  Y.  203. 

76.  Cleveland  v.  Bergen  Bldg.  &  Imp.  Co. 
(N.  J.  Eq.)   55  Atl.   117. 

77.  Davis  V.  Morris.  132  N.  C.  435. 

78.  Gen.  St.  Kan.  §  4364 — Garfield  Tp.  v. 
Herman   (Kan.)   71  Pac.  517. 

79.  Coe  College  v.  Cedar  Rapids  (Iowa) 
95  N.  'W.  267.  Courts  will  not  take  judicial 
notice  of  the  width  of  streets  even  in  cities 
organized  under  special  charters — Id.  There 
is  a  complete  dedication  where  the  owner 
makes  a  plat  laying  the  land  out  into  blocks 
and  lots  with  intervening  streets  clearly  in- 
dicated on  the  plat  and  the  streets  cannot  be 
closed  up  except  where  legally  authorized — 
Price  v.  Stratton   (Fla.)  33  So.  644. 

80.  Deady  &  Lane's  Gen.  Laws  Or.  p.  776, 
o.  59 — Nodine  v.  City  of  Union,  42  Or.  613,  72 
Pac.  5S2. 

81.  Russell  V.  City  of  Lincoln,  200  111.  511. 

82.  Approval  signed  in  the  officer's  name 
by  the  clerk  (Comp.  Laws  Mich.  §  3372)  — 
City  of  St.  Joseph  v.  Schulz  (Mich.)  93  N.  W. 
432. 

S3.  Loughman  v.  Long  Island  R.  Co.,  S3 
App.  Div.   (N.  Y.)    629. 

84.  Nodine  v.  City  of  Union,  42  Or.  613,  72 
Pac.  582. 

85.  Sanders  v.  Village  of  Riverside  (C.  C. 
A.)  118  Fed.  720;  Coe  College  v.  Cedar  Rapids 
(Iowa)   95  N.  W.  267. 


§  4 


EFFECT    OF    DEDICATION. 


907 


edged  plat  by  the  public  will  bind  the  dedicator.®^  Where  the  owners  of  land  plat- 
ted it  and  laid  out  streets  and  afterwards  by  numerous  conveyances  recognized  a 
later  plat  by  the  city  engineer,  showing  the  street  in  a  changed  position,  and  made 
no  objection  to  the  public  use  of  the  street  as  so  changed,  there  was  a  valid  dedica- 
tion of  the  street  not  only  as  platted  originally  but  as  changed  by  the  engineer's 
plat."  ■ 

Sufficiency  of  dedication  hy  corporation. — A  dedication  by  a  corporation,  to  bind 
the  corporation  beyond  revocation,  must  be  made  by  the  directors,  or  recognized  by 
them  in  some  way,  or  be  expressly  ratified  by  them,  or  by  such  public  use  for  such 
time  and  under  such  circumstances  as  to  justify  the  inference  of  such  ratification. 
The  mere  act  of  officers  and  agents  making  such  dedication  without  authority  from 
the  directors  will  not  make  a  valid  dedication,  unless  by  such  express  or  implied 
ratification.*' 

Evidence  of  dedication. — In  every  case  of  an  implied  dedication,  it  must  appear 
that  the  property  has  been  in  the  exclusive  control  of  the  public  for  a  period  long 
enough  to  raise  the  presumption  of  a  gift.*'  Claiming  compensation  negatives  a 
dedication.'"  A  deed  insufficient  in  law  to  amount  to  a  dedication  of  land  for  a 
street  may  be  submitted  as  a  circumstance  on  the  question  of  dedication.®^  Evi- 
dence of  dedication  is  sufficient  where  the  testimony  shows  that  the  buildings  on  a' 
farm  had  been  in  existence  for  more  than  100  years  and  that  the  only  way  to  reach 
them  from  the  main  highway  was  by  the  road  in  question.'* 

§  4.  Effect  of  dedication. — An  acknowledgment  and  recording  of  a  plat  is 
equivalent  to  a  deed  in  fee  simple  of  the  portion  of  land  set  apart  to  the  public 
use.'^  Where  the  grantor  conveying  land  retained  title  to  land  used  for  street,  it 
made  no  difference  to  the  grantee  whether  the  land  was  used  by  the  public  under 
common  law  or  statutory  dedication.'* 

A  dedication  is  binding  on  remote  grantees  of  the  party  executing  a  plat,"  and 
purchasers  at  a  judicial  sale  of  platted  premises.'" 

Municipal  authorities  are  without  power  to  appropriate  property  dedicated  to 
the  public  to  the  individual  use  of  corporations.'''  In  Louisiana,  it  has  been  held 
that  although  property  has  been  dedicated  to  the  public  use,  the  city  may  make  rea- 
sonable changes  therein.'*  Wliere  there  is  a  valid  dedication  of  land  for  highway 
purposes,  an  adjoining  owner  may  not  invade  a  portion  of  the  highway  on  the 
ground  that  more  space  for  road  purposes  was  dedicated  than  was  used." 

WTiere  there  is  a  conveyance  of  land  to  town  trustees  for  a  street,  the  land  will 
revert  to  the  grantor  on  its  abandonment.^"" 


Re.     Wright    V.    Oberlin,    23    Ohio    Circ.    R. 

509. 

S7.  Sweatman  v.  Bathrick  (S.  D.)  95  N.  W. 
422. 

88.  Hast  V.  Piedmont  &  C.  R.  Co.,  52  W. 
Va.  396.  Oral  evidence  of  a  general  man- 
ager of  a  railroad  company  that  the  com- 
pany purchased  a  lot  of  land  for  the  purpose 
of  dedicating  it  to  public  use  as  a  street,  and 
tore  down  the  fences  around  it,  and  threw  it 
open  to  public  use,  does  not  prove  such  dedi- 
cation of  it  as  to  render  the  dedication  irrev- 
ocable— Id. 

89.  Georgia  R.  &  Banking  Co.  v.  City  of 
Atlanta   (Ga.)    45  S.  E.  256. 

00.  Admitting  existence  of  highway  by 
claim  of  damages  which  is  ignored  is  not 
conclusive — Langan  v.  Whalen  (Neb.)  93  N. 
W.  393. 

91.  Atlantic  City  v.  Groff,  68  N.  J.  Law, 
670. 


92.  Town  of  Clarendon  v.  Rutland  R.  Co. 
75  Vt.  6. 

93.  Coe  College  v.  Cedar  Rapids  (Iowa)  95 
N.  W.  267;  Blennerhassett  v.  Town  of  Forest 
City,  117  Iowa,  680. 

94.  Sweatman  v.  Bathrick  (S.  D.)  95  N.  W. 
422. 

The  right  to  use  streets  dedicated  as  at 
common  law  extends  to  the  general  public — 
Alden  Coal  Co.  v.  Challis,  200  111.  222. 

95.  Faller  v.  Town  of  Latonia,  24  Ky.  L. 
R.  2476,  74  S.  "W.  287. 

96.  Thompson  v.  Maloney,  199  III.  276. 

97.  First  German  Reformed  Church  v. 
Summit  County  Com'rs.   23  Ohio  Circ.  R.   553. 

98.  Capdevielle  v.  New  Orleans  &  S.  F.  R. 
Co.   (La.)   34  So.  868. 

99.  State  V.  Thompson,  91  Mo.  App.  329. 

100.  Downes  v.  Dimock  &  Fink  Co.,  76 
App.  Div.   (N.  T.)  513. 


908 


DEEDS. 


DEEDS  OF  CONVEYANCE. 

§  1.  Nature,  form,  and  requisites.  Deeds  distinguished  from  other  instru- 
ments.—In  determining  whether  an  instrument  taking  effect  on  the  grantor's  death 
is  a  deed  or  a  will,  the  intent  of  the  grantor  as  to  whether  it  is  the  passing  of  title 
or  merely  the  enjoyment  which  is  thus  postponed  is  the  test.  Tliis  intention  is 
usually  determinable  from  the  retention  of  a  power  of  recall.^  An  instrument  in 
form  a  contract  for  deed  is  sometimes  held  to  be  a  conveyance.^  An  instrument  in 
form  an  absolute  deed  may  be  held  a  mortgage,  if  it  appears  that  it  was  the  inten- 
tion of  the  parties  that  it  should  stand  as  security  only,^  and  this  intent  may  appear 
either  by  parol,*  in  the  absence  of  a  statute  to  the  contrary,^  or  by  a  separate  written 
defeasance.®  A  conveyance  of  lands  upon  declared  trusts  may  embody  both  a  con- 
veyance and  a  declaration  of  trust  in  the  same  writing.  The  latter  phase  of  the 
instrument  will  be  properly  discussed  in  a  later  title.^  In  many  if  not  all  particu- 
lars the  formal  requisites  of  mortgages  correspond  to  those  of  deeds.  Such  cases 
as  apply  the  law  to  mortgages  will  be  collected  under  the  article  on  mortgages. 


1.  Mere  nondelivery  during  the  life  time 
of  grantor  if  no  power  of  recall  is  reserved 
does  not  constitute  tlie  instrument  a  will- 
Phillips  V.  Phillips  (Colo.)  71  Pac.  363;  Sei- 
fert  V.  Seifert  (Kan.)  71  Pac.  271;  Bogan  v. 
Swearingen.  199  111.  454.  A  deed  is  not  tes- 
tamentary because  it  provides  that  grantor 
shall  retain  possession  during  his  life  time 
—Christ  V.  Kuehne,  172  RLo.  118;  Adair  v. 
Craig,  135  Ala.  332.  Or  reserves  a  rental 
during  grantor's  life — Cone  v.  Cone,  118 
Iowa,  458.  Conveyance  to  one  for  life  and 
remainder  to  others,  the  instrument  not  to 
take  effect  till  grantor's  death,  is  a  will — 
Coulter  V.  Shelmadine,  204  Pa.  120.  Lost  in- 
strument proved  merely  to  be  a  conveyance 
to  take  effect  on  grantor's  death  held  to  be 
a  will— Lincoln  v.  Felt  (Mich.)  92  N.  W.  780. 
An  instrument  executed  as  a  deed  and  de- 
livered, stating  that  grantor  "has  given"  to 
grantee  certain  land  to  belong  to  him  at 
grantor's  death  is  a  deed  and  not  a  will— 
Brice  v.  Sheffield  (Ga.)  44  S.  E.  843.  Where 
power  of  recall  is  retained  the  instrument  is 
not  a  deed — Tarlton  v.  Griggs,  131  N.  C.  216; 
Johnson  v.  Johnson,  24  R.  I.  571;  V\^hite  v. 
Watts,  118  Iowa,  549.  An  instrument  in 
form  a  deed  reciting  that  grantor  was  to  re- 
tain possession  of  the  Instrument  until  his 
death  and  to  have  the  use  of  the  property 
during  his  life  is  a  will  not  a  deed — Griffin 
v.  Mcintosh   (Mo.)  75  S.  W.  677. 

2.  Agreements  without  operative  words 
of  conveyance  held  deeds,  the  conditions  de- 
volving on  the  purchaser  having  been  per- 
formed— Cone  V.  Cone,  118  Iowa.  458;  Yeary 
V.  Crenshaw   (Tex.  Civ.  App.)   70  S.  W.   579. 

3.  A  deed  absolute  in  form  but  given  to 
secure  the  payment  of  a  debt  will  be  re- 
garded as  a  mortgage — Fahay  v.  State  Bank 
(Neb.)  95  N.  W.  505.  The  intent  may  be  in- 
ferred, inadequacy  of  consideration,  reten- 
tion of  premises  by  grantor  and  a  debt  to  be 
secured  being  the  principal  indicia — Tuggle 
V.  Berkeley  (Va.)  43  S.  E.  199;  Dillon  v. 
Dillon,  24  Ky.  L.  R.  781,  69  S.  W.  1099;  Ang- 
lln  V.  Conley,  24  Ky.  L.  R.  1551.  71  S.  W.  926; 
Thacker  v.  Morris,  52  W.  Va.  22".  An  agree- 
ment that  when  the  land  was  resold  all  sur- 
plus over  a  certain  debt  should  be  pr.id  to 
grantor  does  not  make  the  deed  a  mortgrage 
^Moran  v.  Munhall,  204  Pa.  242.  An  abso- 
lute   deed    w^ith    an    agreement    back    giving 


control  and  use  to  grantor  during  his  life  is 
not  testamentary — Durand  v.  Higgins  (Kan.) 
72  Pac.  567.  An  agreement  for  a  reconvey- 
ance on  making  certain  payments  does  not 
make  a  deed  absolute  on  its  face  a  mort- 
gage— Pumilia  v.  De  George  (Tex.  Civ.  App ) 
74  S.  W.  813. 

4.  The  rule  against  parol  evidence  to  vary 
a  writing  is  not  applicable — Brown  v.  John- 
son, 115  Wis.  430;  Ross  v.  Howard,  31  Wash. 
393,  72  Pac.  74:  Stafford  v.  Stafford  (Tex.  Civ. 
App.)  71  S.  W.  984;  Hurlbert  v.  Kellogg 
Lumber  Co.,  115  Wis.  225;  Northern  Assur. 
Co.  V.  Chicago  Mut.  Bldg.  &  Loan  Ass'n,  198 
111.  474;  Beebe  v.  Wisconsin  Mortg.  Loan  Co. 
(Wis.)  93  N.  W.  1103.  But  it  has  been  held 
that  in  an  action  at  law  such  proof  is  inad- 
missible— Billingsley  v.  Stutler,  52  W.  "Va. 
92. 

Sufficiency  of  evidence:  The  eviderce  that 
a  deed  absolute  on  its  face  was  in  fact 
a  mortgage  must  be  clear  and  convincing — 
Heaton  v.  Gaines,  198  111.  479;  Evan's  v. 
Thompson  (Minn.)  94  N.  W.  692;  Carvetlx  v. 
Winegar  (Mich.)  94  N.  W.  381;  Rose  v. 
Gandy  (Ala.)  34  So.  239;  Cassem  v.  Heustis, 
201  111.  208;  HoUaday  v.  Willis  (Va.)  43  S. 
B.  616;  In  re  Holmes,  79  App.  Div.  (N.  Y.) 
264;  Little  v.  Braun,  11  N.  D.  410.  Testi- 
mony of  grantor  alone  insufficient  by  ex- 
press terms  of  statute — Schwartz  v.  Lieber 
(Miss.)  32  So.  954.  Evidence  held  not  to 
show  that  a  deed  absolute  on  its  face  was 
designed  as  a  mortgage — Miller  v.  Price, 
66  S.  C.  85. 

Bona  fire  purchasers:  A  parol  defeasance 
may  in  the  absence  of  statute  be  asserted 
against  a  bona  fide  purchaser — Carveth  v. 
Winegar  (Mich.)  94  N.  W.  381.  And  an  in- 
surer is  not  a  bona  fide  purchaser  within  a 
statute  protecting  such  purchasers — Wolf  v. 
Theresa  Village  Fire  Ins.  Co.,  115  Wis.   402. 

5.     Moran  v.  Munhall,  204  Pa.  242. 

(S.  Wolf  V.  Theresa  Village  Fire  Ins.  Co., 
115  Wis.  402.  But  see  Bates  v.  Sherwood, 
24  Ohio  Circ.  R.  146.  Defeasance  held  to  re- 
fer to  same  property  as  deed — Turner  v. 
Cochran  (Tex.  Civ.  App.)  70  S.  W.  1024.  A 
proviso  that  the  deed  shall  be  void  if  a  cer- 
tain debt  is  paid  makes  it  a  mortgage — 
Thacker  v.  Morris,  52  W.  Va.  220. 

7.     See  Trusts. 


§  1 


REQUISITES. 


909 


Requisites. — Instruments  affecting  the  title  to  realty  are  required  to  be  in  writ- 
ing,^ and  in  the  proof  of  their  existence  the  general  rules  as  to  best  and  secondary 
evidence  apply.®  Holding  as  to  sufficiency  of  evidence  of  existence  and  execution 
are  found  in  the  note.^°  To  constitute  a  valid  conveyance  by  deed,  there  must  be 
some  title  in  the  grantor/^  words  of  description  identifying  the  property/^  apt 
words  of  conveyance/^  execution  according  to  the  statutes/*  delivery^^  during  the 
life  of  the  grantor/^  and  acceptance  thereof.^''  As  between  the  parties,  a  consid- 
eration is  unnecessary.^" 


8.  See  article  on  Frauds,  Statute  of. 

9.  See  Evidence. 

10.  Uncontradicted  evidence  tliat  ancestor 
of  witness  liad  executed  a  deed  hield  suffi- 
cient-— Jones  V.  Brig-ht  (Miss.)  33  So.  655. 
Evidence  of  execution  lield  sufficient  not- 
withstanding- denial  by  grantor — Royals  v. 
Lacey  (Tex.  Civ.  App.)  73  S.  W.  1062.  Evi- 
dence held  sufficient  to  sliow  that  deed  was 
a  forgery — Parlin  &  Orendorft  Co.  v.  Hutsor, 
198  111.  389;  Crate  v.  Strong,  24  Ky.  L.  R. 
710,  69  S.  W.  957.  Evidence  of  forgery  held 
Insufficient — Riviere  v.  Wilkens  (Tex.  Civ. 
App.)  72  S.  W.  608.  See,  also,  article  on 
Lost  Instruments  as  to  sufficiency  of  evi- 
dence on  proceeding  to  establish  lost  deed. 

11.  Jordan  v.  Fennacy,  24  Ky.  L.  R.  1636, 
71  S.  W.  900. 

At  common  law,  and  in  most  of  the  states 
the  rule  is  still  in  force,  a  deed  to  lands  of 
which  the  grantor  was  at  the  time  disseised 
is  void  being-  in  elfect  a  transfer  of  a  litig- 
ious right.  This  doctrine  is  treated  in  the 
article  Champerty  and  Maintenance. 

12.  Huntress  v.  Portwood,  116  Ga.  351. 
Description  sustained  though  extrinsic  evi- 
dence v.-as  necessary — Gates  v.  Paul  (Wis.) 
94  N.  W.  55.  "Frye's"  instead  of  "Smith 
Frye's"  addition  sufficient  where  there  was 
but  one  Frye's  addition — Langlois  v.  Cam- 
eron, 201  111.  301.  Description  supplemented 
by  reference  to  other  recorded  deeds  suffi- 
cient— Sheafer  v.  Mitchell,  109  Tenn.  181. 
But  not  wliere  the  deed  referred  to  is  mis- 
described  as  to  date — Rountree  v.  Tliomp- 
son  (Tex.  Civ.  App.)  71  S.  W.  574,  72  S.  W. 
69.  Description  by  metes  and  bounds  the 
measures  being  in  blank  insufficient — Ellis 
v.  LeBow  (Tex.  Civ.  App.)  71  S.  W.  576.  If 
otherwise  adequately  described  the  fact  that 
part  of  land  was  in  another  county  than  de- 
scription states  does  not  invalidate — Morri- 
son V.  Casey  (Miss.)  34  So.  145.  A  date  line 
at  the  top  giving  city  and  state  may  be  re- 
ferred to  in  aid  of  a  description — Horton  v. 
Murden    (Ga.)    43  S.  E.   786. 

13.  Technical  words  of  conveyance  are 
not  necessary  in  Georgia — Horton  v.  Murden 
(Ga.)  43  S.  E.  786.  Instruments  held  to  be 
deeds  and  not  mere  agreements  to  convey — 
Cone  V.  Cone.  118  Iowa,  4.5S:  Yeary  v.  Cren- 
shaw (Tex.  Civ.  App.)   70  S.  W.  579. 

14.  Signature:  In  Georgia  a  signature  in 
the  recitals  is  sufficient — Horton  v.  Murden 
(Ga.)  43  S.  E.  786.  Parol  authorization  of 
agent  to  sign  followed  by  acquiescence  suffi- 
cient between  parties — Saunders  v.  King 
(Iowa)  93  N.  W.  272.  Seal:  Not  required  in 
New  York — Leask  v.  Horton.  39  Misc.  (N.  Y.) 
144.  Aclinowledgnient  is  not  necessary  to 
the  validity  of  t'ne  deed  as  betv.^een  the  par- 
ties.   See  Acknowledgment  No.  1,  p.  17. 

15.  Manual  tradition  unnecessary  if  par- 
ties intended  to  deliver  and  believed  they 
had  done   so    (Hildebrand  v.   Willig,   64   N.   J. 


Eq.  249);  and  e  converso  obtaining  and  re- 
cording contrary  to  the  intent  of  grantor 
rSchaefer  v.  Purviance  [Ind.]  66  N.  E.  154; 
McNicholas  v.  Moran,  204  Pa.  165);  or  in 
violation  of  a  condition  on  which  the  deed 
was  given  to  grantee  (Kenney  v.  Parks,  137 
Cal.  527,  70  Pac.  556)  is  no  delivery.  Re- 
cordation by  grantor  with  intent  to  deliver 
is  a  sufficient  delivery — Ford  v.  Boone  (Tex. 
Civ.  App.)  75  S.  W.  353.  Where  deed  was 
given  to  third  person  with  right  to  recall 
and  grantor  exercised  rights  of  ownership 
thereafter  and  the  deed  was  not  delivered 
until  after  his  death  there  was  no  sufficient 
delivery — Johnson  v.  Johnson,  24  R.  I.  571. 
Unconditional  delivery  to  a  third  person  for 
grantee  Is  sufficient — Callahan  v.  James 
(Cal.)  71  Pac.  104;  Marshall  v.  Hartzfelt  (Mo. 
App.)  71  S.  W.  1061;  Oliver  v.  Wilhite,  201 
111.   552. 

Presumptions  and  evidence  as  to  deliv- 
ery: A  deed  In  the  possession  of  grantee 
is  presumed  to  have  been  delivered — In- 
man  v.  Swearingen,  198  111.  437.  On  the  day 
when  it  bears  date — Atlantic  City  v.  New 
Auditorium  Pier  Co.,  63  N.  J.  Eq.  644.  Re- 
cording by  grantor  raises  presumption  of  de- 
livery— Luckhart  v.  Luckhart  (Iowa)  94  N. 
W.  461;  Tarlton  v.  Griggs.  131  N.  C.  216; 
Hildebrand  v.  Willig,  64  N.  J.  Eq.  249.  But 
acknowledgment  raises  no  presumption  of 
delivery — Tarlton  v.  Griggs,  131  N.  C.  216. 
Evidence  held  sufficient  to  rebut  presun  p- 
tion  arising  from  recordation — Smith  v. 
Smith,  116  Wis.  570.  Or  presumption  arii  - 
Ing  from  possession  by  grantee — Barron  v 
Mercure  (Mich.)  93  N.  W.  1071.  Evidence  of 
delivery  held  sufficient — Inman  v.  Swear- 
ingen, 198  111.  437;  Kuhn's  Adm'r  v.  Kuhn,  24 
Ky.  L.  R.  787.  69  S.  W.  1077.  Evidence  held 
sufficient  though  deed  was  unrecorded  and 
in  possession  of  grantor — McGuire  v.  Mc- 
Guire,  81  N.  Y.  Supp.  1134. 

16.  Delivery  to  a  third  person  to  be  given 
to  grantee  after  grantor's  death  is  sufficient 
if  grantor  relinquishes  all  control — Bogan  v. 
Swearingen,  199  111.  454.  But  otherwise  If 
right  of  recall  is  retained  by  gr?cntor — 
Tarlton  v.  Griggs,  131  N.  C.  216;  Johnson  v. 
Johnson,  24  R.  I.  571.  The  fact  that  at 
grantor's  direction  one  of  the  deeds  was  de- 
livered before  his  death  does  not  show  that 
he  retained  control — White  v.  Watts,  118 
Iowa,  549.  Delivery  to  grantee  with  direc- 
tion to  record  after  grantor's  death  is  suffi- 
cient— Seifert  v.    Seifert    (Kan.)    71    Pac.    271. 

17.  Wells  V.  Hobson,  91  Mo.  App.  379. 
Acts  of  ownership  after  delivery  constitute 
an  acceptance — -White  v.  Watts,  118  Iowa, 
549;  Williams  v.  Van  Geison,  76  App.  Div. 
(N.  Y.)  592;  Ewing  v.  Stanley,  24  Ky.  L.  R. 
633.  69  S.  W.  724. 

18.  See  article  on  Fraudulent  Convey- 
ances for  effect  of  want  of  consideration  as 
to  creditors. 


910 


DEEDS. 


§2 


Validity,  of  assent}^ — As  in  all  other  contracts,  the  parties  must  be  competent 
to  contract,-"  and  must  be  free  from  fraud,^^  mistake,^^  and  undue  influence.-' 

§  2.  Recordation.'*^ — The  recording  of  a  deed  is  unnecessary  as  between  the 
parties,^*  but  under  the  registry  laws  an  unrecorded  deed  is  of  no  effect  against  a 
subsequent  purchaser  in  good  faith,"®  and  a  judgment  creditor  is  a  purchaser  within 


19.  This  subject  will  be  more  fully  treat- 
ed in  forthcoming  articles  on  Incompetency, 
Duress,  Fraud  and  Undue  Influence  and  Mis- 
talte.  Proceedings  to  set  aside  are  treated  in 
Cancellation  of  Instruments.    Ante,  page  413. 

20.  Man  of  73  lield  competent — String-fel- 
fellow  V.  Hanson,  25  Utah,  480,  71  Pac.  1052. 
Woman  of  73  held  competent — Dean  v.  Dean, 
42  Or.  290,  70  Pac.  1039.  Woman  of  76  held 
Incompetent — Chadd  v.  Moser,  25  Utah,  369, 
71  Pac.  870.  Habitual  drunkard  held  incom- 
petent— Hardy  v.  Dyas,  203  111.  211.  Ability 
to  understand  the  nature  and  consequences 
of  the  transaction  is  the  test  of  competency 
— Stringfellow  v.  Hanson,  25  Utah,  480,  71 
Pac.  1052.  If  grantor  was  able  to  under- 
stand the  nature  and  value  of  his  property 
and  how  he  wanted  to  dispose  of  it  he  is 
competent — Hayman  v.  Wakeham  (Mich.)  94 
N.  W.   1062. 

21.  Deed  set  aside  where  there  was  great 
disparity  of  intelligence  and  grantor  re- 
posed confidence  in  grantee — Cannon  v.  Gil- 
mer, 135  Ala.  302.  False  representation  as 
to  purpose  for  which  property  was  to  be 
used  held  sufficient  to  set  aside — Brett  v. 
Cooney,  75  Conn.  338.  Transfers  by  which 
the  attorney  in  fact  of  an  insane  person  ob- 
tained his  principal's  land  held  fraudulent — 
Clay  V.  Hammond,  199  111.  370.  Conveyance 
by  way  of  compromise  where  grantee's  claim 
was  fraudulently  made  set  aside — Dashner 
V.  Bufflngton,  170  Mo.  260.  Evidence  of 
fraud  held  insufficient — Stewart  v.  Dunn,  77 
App.  Div.  (N.  Y.)  631;  Haynes  v.  Harriman 
(Wis.)  92  N.  W.  1100;  Simon's  Estate,  20  Pa. 
Super.  Ct.  450.  Evidence  of  fraud  sufficient 
— Barry  v.  Murphy  24  Ky.  L.  R.  953,  70  S. 
W.  276:  Wilson  v.  Winsor,  24  Ky.  L,.  R.  1343, 
71  S.  W.  495;  Highland  v.  Highland,  24  Ky. 
L.  R.  2242,  73  S.  W.  791.  The  burden  of 
proving  fraud  is  on  the  party  alleging  it — 
Simon's  Estate,  20  Pa.  Super.  Ct.  450.  Con- 
veyance by  old  and  illiterate  woman  to  her 
pastor  (McClellan  v.  Grant.  83  App.  Div.  [N. 
T.]  599);  or  physician  (Norfleet  v.  Beall 
[Miss.]  34  So.  328)  held  presumptively  fraud- 
ulent. 

22.  Mistake  must  be  mutual — Stewart  v. 
Dunn,  77  App.  Div.  (N.  Y.)  631.  Evidence 
held  insufficient  to  show  that  deed  by  an  old 
woman  to  her  son  was  induced  by  mistake  as 
to  her  duty  to  support  him — Chadd  v.  Moser, 
25  Utah.  369.  71  Pac.  870. 

23.  Influence  arising  from  affection  Is  un- 
objectionable— Adair  v.  Craig,  135  Ala.  332. 
Relationship  of  brother  and  sister  raises  no 
presumption — Reeves  v.  Howard,  118  Iowa, 
121.  Conveyance  from  wife  to  husband 
without  consideration  presumptively  invalid 
— Wilson  V.  Winsor.  24  Ky.  L.  R.  1343,  71  S. 
W.  495.  Evidence  of  undue  influence  as  be- 
tween principal  and  agent  held  insufficient — 
Adair  v.  Craig,  135  Ala.  332.  As  between 
relatives — Chowning  v.  Howser,  24  Ky.  L.  R. 
1951.  72  S.  W.  748;  Ryan  v.  Ryan  (Mo.)  73  S. 
W.  494;  Chadd  v.  Moser,  25  Utah,  369,  71  Pac. 
870;    Vance    v.    Davis    (Wis.)    95    N.    W.    939; 


Stringfellow  v.  Hanson,  25  Utah,  480,  71  Pac. 
1052;  Reeves  v.  Howard,  118  Iowa.  121;  Dean 
v.  Dean,  42  Or.  290,  70  Pac.  1039;  Apland  v. 
Pott  (S.  D.)  92  N.  W.  19.  Evidence  of  undue 
influence  held  sufficient — Highland  v.  High- 
land, 24  Ky.  L.  R.  2242,  73  S.  W.  791;  Bab- 
cock  V.  Clark,  79  App.  Div.  (N,  Y.)  502; 
Barry  v.  Murphy,  24  Ky.  L.  R.  953,  70  S.  W. 
276. 

24.  This  subject  will  be  more  fully  treated 
in  the  forthcoming  article  on  Notice  and  Rec- 
ord of  Tittle.  See,  also.  Adverse  Possession 
record  as  color  of  title  and  Evidence  admis- 
sibility of  certiflcate  of  record  in  evidence. 

25.  Whalon  v.  North  Platte  Canal  &  Colo- 
nization Co.   (Wyo.)   71  Pac.  995. 

26.  Goosby  V.  Johnson,  24  Ky.  L.  R.  610, 
69  S.  W.  697;  Waggoner  v.  Dodson  (Tex.  Civ. 
App.)   71  S.  W.  400. 

Who  is  a  bona  fide  purchaser:  To  take 
as  against  a  prior  deed  the  purchaser 
must  have  had  no  actual  knowledge  there- 
of— Michigan  Trust  Co.  v.  City  of  Red 
Cloud  (Mich.)  92  N.  W.  900;  Buchholz  v. 
Leadbetter,  11  N.  D.  473.  Though  in  a  few 
states  the  states  do  not  require  good  faith 
and  admit  of  no  substitute  for  the  record — 
Collins  v.  Davis,  132  N.  C.  106.  And  must 
not  have  been  in  possession  of  information 
putting  him  on  inquiry-  -Truth  Lodge  v. 
Barton  (Iowa)  93  N.  W.  106;  Atlantic  City  v. 
New  Auditorium  Pier  Co.,  63  N.  J.  Eq.  644; 
Albany  Exch.  Sav.  Bank  v.  Brass,  171  N.  Y. 
693;  Blgelow  v.  Brewer,  29  Wash.  670,  70 
Pac.  129;  Beebe  v,  Wisconsin  Mortg.  Loan 
Co.  (Wis.)  93  N.  W.  1103.  Such  as  posses- 
sion of  the  premises — Storthz  v.  Ciiapline 
(Ark.)  70  S.  W.  465;  Allen  v.  Moore,  3t  Colo. 
307,  70  Pac.  682;  Kirkham  v.  Moore,  3t'  Ind, 
App.  549;  Gillespie  v.  Buffalo,  R.  &  P.  Ry. 
Co.,  204  Pa.  107;  Gray  v.  Zelmer  (Kan.)  72 
Pac.  228;  Linder  v.  Whitehead,  116  Ga.  206. 
Under  the  North  Carolina  act  possession  un- 
der an  unrecorded  deed  gives  no  rights 
against  a  subsequent  grantee — Collins  v.  Da- 
vis, 132  N.  C.  106.  Payment  of  value  is  es- 
sential to  constitute  one  a  bona  fide  pur- 
chaser— Grove  v.  Grove  (Va.)  42  S.  E.  312; 
Mackey  v.  Gabel,  117  Fed.  873;  Sullivan  v. 
McLane  (Tex.)  70  S.  W.  949;  Trice  v.  Com- 
stock  (C.  C.  A.)  121  Fed.  620.  "A  valuable 
consideration"  means  a  fair  and  reasonable 
price — Collins  v.  Davis,  132  N.  C.  lOG.  One 
who  had  agreed  to  purchase  and  had  begun 
a  suit  for  specific  performance  at  the  time 
of  recording  the  deed  is  not  a  "subsequent 
purcliaser" — Noyes  v.  Crawford,  118  Iowa,  15. 
Where  one  buys  property  described  general- 
ly as  all  the  land  owned  by  grantor  in  a 
certain  state  he  is  entitled  to  the  protection 
of  the  registry  laws  as  to  all  land  which 
grantor  appeared  by  the  records  to  own — 
Boynton  v.   Haggart    (C.   C.  A.)    120   Fed.   819. 

Sufficiency  of  record  as  notice:  A  record  not 
indexed  is  not  notice — Koch  v.  West  (Iowa) 
92  N.  W.  663.  But  under  a  statute  provid- 
ing that  a  deed  takes  effect  from  the  time  it 
is   filed   for  record.   It   has   been   held    that  a 


§  3 


INTERPRETATION. 


911 


this  rule."  As  a  prerequisite  to  recording,  it  is  generally  provided  that  a  deed  shall 
l-'e  executed  with  certain  formalities  not  essential  to  the  mere  passing  of  title  be- 
tween the  parties,^*  or  as  a  substitute,  proved  by  a  subscribing  witness,^^ 

§  3.  Interpretation  and  effect.^'^  General  rules. — The  interpretation  of  a  deed 
is  for  the  court.^^  A  deed  will  be  construed  against  the  grantor/^  but  reservations 
are  to  be  construed  in  his  favor.^* 

Designation  of  parties.^* — The  word  "administratrix"  affixed  to  the  name  of 
grantee  is  descriptio  pcrsonae.*^  "Heirs"  in  designation  of  grantees  is  frequently 
held  to  mean  "issue."^° 

Description  of  property  conveyed. — A  deed  ordinarily  conveys  only  such  land 
as  is  clearly  vsdthin  its  terms/^  but  passes  without  mention  all  that  is  appurtenant,^* 
or  affixed  to  the  realty^®  and  a  reservation  of  a  building  has  been  held  to  include 
land  inclosed  with  it.*°  On  the  other  hand  latent  equities  will  not  diminish  the 
property  clearly  conveyed."  In  case  of  conflict,  metes  and  bounds  control  state- 
ment of  quantity,*^  but  statement  of  quantity  prevails  over  a  reference  to  the  land 
as  that  obtained  by  grantor  from  a  certain  source.*' 


deed  Is  effective  against  a  third  person  with- 
out notice  though  recorded  in  the  wrong 
book — Durrence  v.  Northern  Nat.  Bank  (Ga.) 
43  S.  E.  726.  In  some  states  the  statute  al- 
lows a  specified  time  for  recording  deeds, 
after  which  they  shall  be  void  as  to  bona 
fide  purchasers.  Under  such  a  statute  a  deed 
not  recorded  within  such  time  is  neverthe- 
less notice  after  it  is  recorded  (Blackwell 
V.  British  American  Mortg.  Co.,  65  S.  C.  105); 
but  if  neither  of  two  deeds  is  recorded  with- 
in the  time  limited  that  first  recorded  takes 
precedence — McLeod  v.  Lloyd  (Or.)  71  Pac. 
795.  The  record  of  a  deed  by  the  grantee  to 
another  is  no  notice  of  the  deed  to  him — 
Goosby  V.  Johnson,  24  Ky.  L.  R.  610,  69  S.  W. 
697;  Hart  v.  Gardner  (Miss.)  33  So.  4'<"; 
Boynton  v.  Haggart  (C.  C.  A.)  120  Fed.  'ol9. 
But  reference  in  a  recorded  deed  to  other 
deeds  puts  purchasers  on  inquiry  as  to  the 
same — Mitchell  v.  D'Olier,  68  N.  J.  Law,  375; 
Waggoner  v.  Dodson  (Tex.)  73  S.  W.  517. 
The  fact  that  one  deed  in  the  chain  is  a  quit 
claim  is  no  notice  of  outstanding  unrecorded 
deeds — Boynton  v.  Haggart  (C.  C.  A.)  120 
Fed.  819. 

Evidence  of  recording  held  sufficient — Ri- 
viere  V.  Wilkens  (Tex.  Civ.  App.)  72   S.  W.  608. 

27.  Gary  v.  Newton,  201  111.  170. 

28.  See,  also,  article  on  Acknowledgment, 
ante,  p.  17,  and  forthcoming  article  on 
Mortgages.  Certificate  of  acknowledgment 
held  sufficient  thoiigh  it  did  not  show  wheth- 
er notary  was  appointed  by  court  or  govern- 
or— Durrence  v.  Northern  Nat.  Bank  (Ga.)  43 
S.  B.  726.  Deed  with  but  one  subscribing 
witness  may  be  recorded,  under  Hart,  Dig. 
art.  2760 — Riviere  v.  Wilkens  (Tex.  Civ.  App.) 
72  S.  W.  60S. 

29.  The  affidavit  of  a  subscribing  w^itness 
who  did  not  in  fact  see  the  grantor  execute 
the  deed  is  insufficient — Baxley  v.  Baxley, 
117  Ga.  60 

30.  Only  the  interpretation  of  the  lan- 
guage of  deeds  is  here  treated.  The  nature 
of  estates  and  rights  incident  thereto  will 
be  discussed  in  forthcoming  articles  on 
Real  Property  and  Life  Estates,  Remainders 
and  Reversions. 

31.  Holmes  v.  Weinheimer  (S.  C)  44  S.  B. 
82.  Interpretation  of  the  language  of  the 
deed  is   for  the  court  but  application  of  the 


description  to  the  land  when  extraneous 
evidence  has  been  admitted  is  for  the  Jury — 
Snooks  V.   Wingfield,   52   W.   Va.   441. 

32.  Van  Winkle  v.  Van  Winkle,  39  Misc. 
(N.   T.)    593. 

33.  Sears  v.  Ackerman,  138  Cal.  583,  72 
Pac.    171. 

34.  A  deed  reciting  receipt  of  consid- 
eration from  "Mrs.  S"  and  with  grant  and 
habendum  to  "said  S"  conveys  to  Mrs.  S, 
not  to  her  husband — Day  v.  Shiver  (Ala  ) 
33    So.    831. 

35.  Richardson  v.  Biglane  (Miss.)  33  So. 
650. 

36.  So  held  where  a  life  estate  was  given 
to  grantor's  wife  with  remainder  to  the 
heirs  of  grantor  and  his  wife — Beedy  v. 
Finney,    118    Iowa,    276. 

37.  The  burden  is  on  grantee  to  show 
that  a  deed  embraces  lands  not  clearly  cov- 
ered by  its  terms — Peery  v.  Elliott  (Va.)  44 
S.   E.    919. 

38.  Railroad  embankment  and  rails — ^"an 
Husan  v.  Omaha  Bridge  &  T.  Ry.  Co.,  118 
Iowa,  366.  Easement  of  drainage — Overton 
V.  Moseley,  135  Ala.  599.  Right  to  obtain 
water  through  pipes  laid  in  street — Mul- 
rooney  v.   Obear,    171   Mo.    613. 

39.  See   forthcoming  article  on   Fixture.s. 

40.  A  reservation  of  a  chapel  together 
with  the  land  on  which  the  same  stood  has 
been  held  to  include  stables  40  feet  from 
the  chapel  and  inclosed  with  it — Weed  v. 
Woods,    71    N.    H.    581. 

41.  Where  a  husband  supplied  a  defi- 
ciency in  the  purchase  price  of  lands  bought 
by  executors  as  an  investment  of  a  legacy 
to  the  wife  and  a  deed  was  made  to  her 
with  his  consent  she  took  the  entire  tract 
and  not  merely  the  proportion  represented 
by  the  amount  paid  by  the  executors — Clay 
V.  Clay's  Guardian,  24  Ky.  L.  R.  2016,  72 
S.    W.    810. 

42.  Seeders   v.    Shaw,    200    111.    93. 

See   also    title    Bovindaries    ante,    p.    346. 

43.  A  deed  of  an  undivided  interest  in 
2,500  acres  "to  which  I  am  entitled  as 
widovr,"  etc.,  conveys  an  Interest  in  2,500 
acres  only  though  the  widow's  share  was 
a  larger  tract — Laufer  v.  Powell  (Tex.  Civ. 
App.)  71  S.  W.  549.  A  deed  of  an  undivid- 
ed three-sevenths  "being  the  interest  I  hold 


912 


DEEDS. 


§3 


Quantum  of  estate  conveyed. — A  quitclaim  deed  conveys  only  sncli  interest  as 
grantor  may  have/*  but  where  one  conveys  with  warranty,  title  subsequently  ac- 
quired by  him  accrues  to  his  grantee.*"  The  rule  in  Shelle/s  Case,  though  abolished 
in  some  states,  is  followed  in  others.*®  Limitations  of  the  estate  conveyed  must  be  in 
the  granting  or  habendum  clause,*'  but  these  clauses  will  be  construed  together.** 
A  deed  to  several  without  designation  of  interest  ordinarily  makes  them  joint  tenants 
at  common  law,  but  the  rule  by  statute  in  many  states  makes  them  tenants  in  com- 
mon only.*® 

A  reservation  of  timber  reserves  title  thereto  and  not  merely  the  right  to  re- 
move witliin  a  reasonable  time.''"  A  reserved  right  may  be  sold  if  so  provided  in 
the  deed." 

Conditions  and  restrictions.^^ — A  breach  of  a  condition  does  not  work  a  for- 
feiture in  the  absence  of  words  to  that  effect,^^  but  where  a  forfeiture  is  stipulated  it 
may  be  enforced  though  there  is  a  remedy  at  law,^*  but  where  the  failure  to  per- 
form was  due  to  mistake,  grantee  will  be  allowed  to  pay  damages.^^  Wliere  the  con- 
dition is  severable,  the  forfeiture  will  be  proportioned  to  the  breach.''®     Grantor  can- 


as  heir  at  law,"  etc.,  conveys  a  three-sev- 
enths Interest  though  grantor's  interest  as 
heir  was  less — Johnson  v.  Johnson,  170  Mo. 
34.  A  conveyance  of  all  grantor's  right, 
title  and  interest  is  not  limited  by  a  recital 
of  his  interest  which  states  it  as  less  than 
it  is — Murphy  v.  Murphy  (N.  C.)  43  S.  E. 
922.  But  a  conveyance  of  all  grantor's  in- 
terest will  be  restricted  to  his  interest  by 
purchase  only  where  such  intent  appears — 
Curtis   V.    Zutavern    (Neb.)    93   N.   W.   400. 

44.  Curtis  v.  Zutavern  (Neb.)  93  N.  W. 
400.  Subject  to  previous  deeds  by  grantor 
— "Wetzstein  v.  Largey,  27  Mont.  212,  70  Pac. 
717.  Equitable  interests  pass — Uihlein  v. 
Matthews,  172  N.  Y.  154;  Cauble  v.  Worsham 
(Tex.)  70  S.  W.  737;  Sowles  v.  Lewis,  75 
Vt.    59. 

45.  The  rule  that  where  one  without 
title  attempts  to  convey  in  fee  subsequently 
acquired  title  Inures  to  the  benefit  of  gran- 
tee (Rev.  St.  §  4591)  does  not  make  such 
subsequent  title  accrue  to  purchasers  at 
sales  for  taxes  levied  against  the  grantee, 
but  grantor  retains  such  title — Wilson  v. 
Fisher,  172  Mo.  10.  Where  land  w^as  ad- 
versely held  at  the  time  of  a  convej'^ance 
with  warranty,  the  conveyance  is  void  and 
an  after  acquired  title  does  not  accrue  to 
the  grantee — Altemus  v.  Nichols  (Ky.)  74 
S.  W.  221.  After  acquired  title  does  not 
inure  to  the  grantee  unless  the  deed  contains 
covenants  of  seisin  or  warranty — -Altemus  v. 
Asher,  24  Ky.  L.  R.  2401.  2416,  74  S.  W. 
245.  A  quitclaim  deed  with  habendum  to 
grantee  and  his  heirs  forever  will  convey 
an  after  acquired  title — West  Seattle  Land 
&  Imp.  Co.  V.  Novelty  Mill  Co.,  31  Wash. 
435,  72  Pac.  69. 

See,   also.    Estoppel. 

46.  A  deed  to  one  and  his  heirs  with 
reversion  on  failure  of  heirs — Davis  v.  Stur- 
geon, 198  111.  520.  Or  of  a  life  estate  to  one 
with  remainder  to  his  heirs,  vests  the  fee  in 
grantee — Shapley  v.  Diehl,  203  Pa.  566.  But 
it  is  otherwise  as  to  a  grant  to  one  and 
his  "bodily  heirs" — Utter  v.  Sidman,  170  Mo. 
284.  Or  "heirs  of  his  body" — Mattison  v. 
Mattison  (S.  C).  43  S.  E.  874.  And  a  grant 
of  a  life  estate  with  habendum  in  fee  to  his 
"heirs"  has  been  held  not  to  vest  the  fee 
in    grantee — Christ   v.    Kuehne,    172    Mo.    118. 


47.  Humphrey  v.  Potter,  24  Ky.  L.  R.  1264, 
70  S.  W.  1062.  And  a  grant  of  a  life  estate 
to  a  married  woman  is  not  enlarged  by 
an  added  clause  that  she  is  to  hold  the  same 
free  from  her  husband's  "control,  liabilities, 
curtesy  and  all  other  interest" — Chew  v. 
Kellar,  171  Mo.  215.  Nor  does  a  clause 
granting  power  to  grantee  to  appoint  re- 
mainderman among  his  heirs — Taylor  v.  Ad- 
ams,   93    Mo.    App.    277. 

48.  Grant  without  limitation  with  haben- 
dum to  heirs  on  death  of  grantee  gives  life 
estate  to  grantee^Beedy  v.  Finney,  118 
Iowa,  276.  As  does  a  grant  to  one  and  ha- 
bendum to  him  and  his  "bodily  heirs"  though 
the  covenant  of  warranty  runs  to  "heirs  and 
assigns" — Utter  v.  Sidman,  170  Mo.  284.  Or 
a  grant  to  one  of  a  life  estate  with  ha- 
bendum to  his  heirs  in  fee — Christ  v.  Ktiehne, 
172  Mo.  118. 

49.  A  grant  to  one  and  his  children  ma'-ces 
them  joint  tenants — Hallam  v.  Ashford,  24 
Ky.  L.  R.  870,  70  S.  W.  197.  Where  one 
and  his  "children"  are  named  as  parties 
of  the  second  part  they  take  as  tenants  in 
common  though  the  granting  and  ha'oendum 
clauses  run  to  the  "party"  of  the  second  part 
— Tyler  v.  Lilly  (Miss.)  33  So.  445.  A  deed 
providing  that  a  dooryard  adjacent  to  the 
granted  premises  should  be  used  by  grantor 
and  grantee  in  common  gives  grantee  an 
easement  and  not  a  tenancy  in  common — 
Deavitt  v.  Washington  County  (Vt.)  53  Atl. 
563.  Where  the  grant  is  to  two  persons 
jointly,  with  habendum  to  them,  their  heirs 
and  assigns,  a  clause  that  one  should  not 
come  into  possession  until  the  death  of  the 
other  does  not  make  the  person  whose  en- 
joyment is  deferred  a  mere  remainderman — 
Pickett   V.  Garrard,   131   N.    C.   195. 

50.  Sears  v.  Ackerman,  138  Cal.  583,  72 
Pac.  171. 

51.  Right  to  use  wall  of  granted  build- 
ing for  party  wall — Alexander  v.  Parks,  24 
Ky.  L.   R.   2113,   72  S.   W.   1105. 

52.  See  article  on  Buildings,  ante,  p.  404 
for  restrictions  and  character  of  erections 
and  use  thereof. 

53.  Rankin  Regular  Baptist  Church  v.  Ed- 
wards. 204  Pa.  216. 

54.  Wanner  v.   Wanner.   115   "^'is.    196. 

55.  Laking  v.  French,  183  Mass.  9. 


DEFAULTS, 


913 


not  claim  a  forfeiture  because  he  was  permitted  by  grantee  to  break  the  condition." 
Holdings  as  to  breach  of  particular  conditions  are  found  in  the  notes.^®  On  con- 
dition broken,  grantor  need  not  demand  performance,^*  and  delay  in  suing  is  no 
bar.*°  Grantor  is  entitled  to  rents  and  profits  from  time  of  suit.®^  No  language  in 
the  deed  will  permit  others  than  the  grantor  or  his  heirs  to  re-enter  for  condition 
broken.^^ 

Extinguishment  of  rights. — Title  is  not  divested  by  a  return  of  the  deed  to 
the  grantor.^^ 

DEFAULTS. 

§  1.  Elements  and  indicia  of  default. — The  party  must  have  been  delinquent 
in  appearance  or  pleading,^*  Jurisdiction  must  have  attached.®^  In  an  action  be- 
gun by  attachment,  pleading  under  a  rule  may  be  equivalent  to  an  appearance.®^ 
If  service  be  constructive,  every  requirement  of  the  statute  must  be  fulfilled.®^  A 
court  exercising  a  special  jurisdiction  in  a  statutory  remedy  must  not  enter  a  de- 
fault without  showing  facts  in  the  record  supporting  its  jurisdiction.®* 

The  pleadings  and  proceedings  must  sustain  the  judgment  if  it  be  given,^°  and 
there  must  be  no  responsive  pleadings  if  the  default  is  in  pleading,^^  and  those 
which  are  not  responsive  may  be  disregarded.^''     The  full  time  to  plead  must  be 


56.  Condition  against  Incumbrances;  only 
part  incumbered  held  to  be  forfeited — Fouts 
V.   Millikan,    30    Ind.   App.    298. 

57.  First  Presbyterian  Church  v.  Elliott, 
65   S.   C.   251. 

58.  A  condition  that  grantee  shall  not  In- 
cumber applies  only  to  voluntary  incum- 
brances, not  to  lien  for  taxes — Fouts  v. 
Millikan,  30  Ind.  App.  298.  A  condition  to 
build  within  a  reasonable  time  is  broken  by 
failure  to  build  within  ten  years — Union 
College  V.  City  of  New  York,  173  N.  Y.  38. 
Evidence  held  to  show  performance  of  con- 
dition to  support  grantor — Hilgar  v.  Miller, 
42    Or.    552,    72   Pac.    319. 

59.  Union  College  v.  City  of  New  York, 
173    N.    Y.    38. 

60.  Fifteen  years  delay  in  suing  where 
condition  was  to  erect  building  in  reason- 
able time — Union  College  v.  City  of  New 
York,   173  N.  Y.   38. 

61.  Union  College  v.  City  of  New  York. 
173    N.    Y.    38. 

63.  The  right  before  breach  is  not  sub- 
ject of  assignment — First  Presbyterian 
Church  V.   Elliott,   65   S.   C.   251. 

63.  Goodwin  v.  Tyrrell  (Ariz.)  71  Pac. 
906;  McClendon  v.  Brockett  (Tex.  Civ.  App.) 
73  S.  W.  854.  The  deed  may  be  reformed 
or  cancelled.  See  Cancellation  of  Instru- 
ments;  Reformation  of  Instruments. 

64.  Entry  of  default  judgment  after  ap- 
pearance is  mere  error  but  not  void — Cul- 
bertson  v.   Salinger   (Iowa)    97  N.  W.   99. 

6.5.  Ault  V.  Cowan,  20  Pa.  Super.  Ct.  628; 
Russell  V.  Butler  (Tex.  Civ.  App.)  71  S.  W. 
395.  Constructive  service  against  one  named 
by  initials  is  bad — Gillian  v.  McDowell  (Neb.) 
92  N.  W.  991.  Serving  two  parties  in  two 
actions  not  consolidated  does  not  put  both 
in  default — Swift  v.  Dixon,  131  N.  C.  42.  An 
original  return  held  not  invalid  for  slight 
misnomer  of  corporation  defendant — South- 
ern   Bell    Tel.    Co.    v.    Earle    (Ga.)    45    S.    E. 


319.  Default  cannot  be  taken  on  action  by 
attachment  if  attachment  affidavits  are  as- 
sailed— J.  H.  Mohlman  Co.  v.  Landwehr,  83 
N.    Y.    Supp.    1073. 

66.  Myler  v.  Wittish,   204  Pa.   180. 

67.  The  order  appointed  no  attorneys  for 
nonresidents — Jones  v.  Griffin,  25  Ky.  L,  R. 
117,   74   S.  W.   713. 

68.  Default  in  answering  Interrogatories 
as  on  discovery — Goodwater  Warehouse  Co. 
V.   Street    (Ala.)    34   So.    903. 

70.  Tremblay  v.  Aetna  Life  Ins.  Co.,  97 
Me.  547.  Contracts  and  bonds  securing  per- 
formance need  not  be  exhibited  In  action 
against  sureties — Fidelity  &  Deposit  Co.  v. 
United  States.  187  U.  S.  315,  47  Law.  Ed. 
194.  Plaintiff  must  show  performance  on 
his  part  of  a  contract  exhibited  for  pay- 
ment of  money — Hibbert  v.  Guardian  Sav.  & 
Loan  Ass'n,  3  Pen.  (Del.)  591.  Petition 
founded  on  a  note  and  mortgage  held  suffi- 
cient to  pray  personal  judgment  against 
original  makers  in  favor  of  another  defend- 
ant who  as  assignor  of  the  debt  as  collat- 
eral to  plaintiff  adopted  the  petition  as  a 
cross-petition — Crist  v.  Davidson  (Wis.)  93 
N.  W.  532.  If  they  are  not  and  default  judg- 
ment is  erroneously  taken  the  remedy  is  by 
motion  to  set  aside  and  not  by  oral  demur- 
rer— Gillian   v.    Gillian,    65    S.    C.    129. 

71.  Demurrer  remained  undisposed  of- — 
Warford  v.  Temple,  24  Ky.  L.  R.  2268,  73 
S.  W.  1023.  Judgment  as  on  default  is  harm- 
less when  entered  a  month  after  overruling 
demurrer  defendant  not  having  answered 
over — Lane  v.  Dowd  (Mo.)  72  S.  W.  632.  Un- 
der the  Texas  practice  a  firm  is  brought  in 
by  serving  members  and  hence  cannot  be 
defaulted  though  each  answers  as  an  indi- 
vidual— Owen  V.  Kuhn,  Loeb  &  Co.  (Tex. 
Civ.  App.)    72   S.  W.   432. 

72.  Glens  Falls  Ins.  Co.  v.  Porter  (Fla.)  3a 
So.  473. 


Curr.  Law — 58. 


914 


DEFAULTS. 


§2 


allowed/'  A  cross  petition  filed  after  time  does  not  put  the  plaintiff  in  default  if 
he  fails  to  answer/*  If  pleadings  be  amended,  the  time  for  answer  is  reckoned 
anew/'  unless  the  amendment  be  not  material/®  Continuing  the  cause  with  time 
to  plead  may  also  make  an  answer  at  the  succeeding  term  timely/^  The  affidavit 
required  by  many  statutes  must  supply  the  statutory  requirements/®  Action  against 
principal  and  surety  is  "ex  contractu"  so  that  want  of  an  affidavit  of  defense  may  be 
a  default/* 

A  default  may  be  waived.®" 

The  practice  fixing  time  to  plead,*^  or  the  term  at  which  trial  is  set  down®^  is 
elsewhere  shown  and  additional  cases  are  there  cited. 

§  2.  Default  by  part  of  co-defendants. — All  must  be  impleaded  or  brought 
into  one  action.®^  One  co-defendant  may  answer  after  others  have  compelled  an 
amendment  of  the  complaint.** 

§  3.  Procedure  on  default;  taking  judgment. — Plaintiff  must  promptly 
move  to  enter  judgment  lest  he  become  chargeable  with  laches.®'  Proof  must  be 
taken  of  such  facts  as  are  not  admitted,®®  and  is  usually  required  on  all  the  facts  in 
divorce,®'  or  in  actions  against  infants,®®  or  to  guard  generally  against  a  fraud  on  the 
court  or  the  parties.®^  Clerks  cannot  as  a  rule  enter  final  judgment  where  further 
proof  than  the  admitted  allegations  is  necessary  to  ascertain  the  liability. *°  The 
plaintiff  may  properly  be  required  to  prove  the  taking  in  replevin,  that  not  being 
for  recovery  of  money  only  wherein  judgment  is  entered  by  the  clerk  on  the  verified 
eomplaint.^^  Scire  facias  on  a  judgment  is  ex  contractu  in  form  within  default 
statutes.^^ 

Under  the  "West  Virginia  practice  of  taking  an  office  judgment,  defendant  must, 
in  ex  contractu  actions  when  there  is  no  order  for  inquiry  of  damages,  plead  to 
issue  at  the  next  term  or  defense  will  be  barred  at  the  expiration  of  the  term  and 
plaintiff  may  then  have  judgment  absolute  on  his  filing  affidavit  as  to  amount  due 
and  unpaid  which  affidavit  he  may  file  later  than  the  term  succeeding  office  judg- 
ment.   If  there  is  an  order  for  inquiry  the  plea  may  be  filed  at  the  next  or  at  a  later 


73.  Removing  cause  before  time  to  put 
in  affidavit  and  recalling  it  afterwards  pre- 
vents default — Muir  v.  Preferred  Ace.  Ins. 
Co.,  203  Pa.  338. 

74.  Koehler  v.  Reed  (Neb.)  96  N.  W.  380. 
On  error  demurrer  presumed  to  have  been 
too  late — Grant  v.  Commercial  Nat.  Bank 
(Neb.)    93   N.   W.   185. 

75.  Demurrant  must  have  service  of 
amended  complaint  drawn  out  by  motions 
of  co-defendants  in  tort — Merrill  v.  Thomp- 
son, 80  App.  Div.  (N.  T.)  503.  If  an  entirely 
new  cause  of  action  be  pleaded  by  amend- 
ment there  must  be  new  process  or  its 
equivalent — Cope  v.  Slayden,  24  Ky.  L.  R. 
1734,   72   S.   "W.   2S4. 

7G.  O'Connor  v.  Brucker  (Ga.)  43  S.  E. 
731. 

77.  "White   v.   Lokey,   131   N.    C.    72. 

78.  Affidavit  held  not  sufficient  to  verify 
account  sued  on — Reybold  v.  Denny,  3  Pen. 
(Del.)   589. 

79.  Rule  73  Sup.  Ct.  D.  C. — Fidelity  & 
Deposit  Co.  V.  United  States,  1S7  U.  S.  315, 
47    Law.    Ed.    194. 

SO.  Muir  V.  Preferred  Ace.  Ins.  Co..  203 
Pa.  338.  By  appearing  to  later  proceedings 
without  objection — In  re  F.  W.  Jdyers  &  Co., 
123    Fed.    952. 

Stipulation  that  pleadings  should  be 
deemed   filed   in   time   void   for  want  of  con- 


sideration— Southern   Bell   Tel.    Co.   v.   Earle 
(Ga.)    45    S.   E.    319. 

51.  Pleading. 

52.  Dockets,   Calendars   and  Trial  Lists. 

53.  Swift  V.  Dixon,  131  N.  C.  42.  Rail- 
road party  not  served  is  not  in  default  to 
suit  resulting  in  judgment  against  receiver 
— Ault   V.    Cowan.    20   Pa.    Super.   Ct.    628. 

54.  Merrill  v.  Thompson,  SO  App.  Div.  (N. 
Y.)    503. 

So.  Eight  years,  too  late — Coleman  v. 
Akers,  87  Minn.  492.  Final  judgrment  may 
be  taken  any  time  after  default  is  entered 
in  City  Court  of  Macon — O'Connell  Bros.  v. 
Friedman    (Ga.)    45    S.   E.    668. 

86.  See  §  5  post  as  to  what  is  admitted. 
The  burden  of  proving  substantial  damage 
remains  on  plaintiff — Osborn  v.  Leach  (N. 
C.)  45  S.  E.  783. 

87.  Kline  v.  Kline,  104  111.  App.  274.  And 
see    generally    Divorce. 

55.  See  Infants. 

89.  See  Equity. 

90.  Liability  under  the  mortgage  clause 
in  an  insurance  policy  must  be  sent  out  to 
jury  not  being  money  demand  on  a  money 
contract — Glens  Falls  Ins.  Co.  v.  Porter 
(Fla.)   33  So.  473. 

91.  Sibley  v.  "Weinberg,   116  Wis.   1. 

92.  For  "recovery  of  money  arising  out 
of  contract" — Marstiller  v.  "Ward,  52  W.  "Va. 
74. 


§4 


OPENING. 


915 


term,  either  in  tort  or  contract.  When  there  has  been  no  order  and  plaintiff  has  put 
in  his  affidavit  which  must  state  what  is  "unpaid"  as  well  as  "due"  he  is,  on  defend- 
ant's failure  to  plead,  entitled  to  judgment  and  may  compel  its  entry  by  the  court.®' 
The  burden  of  proof  of  damages  is  on  plaintiff  generally  but  defendant  must 
prove  facts  relieving  him  from  liability.**  Under  the  Connecticut  practice,  a  de- 
faulting defendant  reserving  the  right  to  disprove  material  allegations  has  the  bur- 

The  judgment  must  follow  the  issues.®*  Judgment  by  default  does  not  "deny^' 
trial  by  jury.®'^ 

§  4.  Opening  defaults. — When  the  default  has  passed  into  judgment,  the 
judgment  may  for  certain  causes  be  opened  or  vacated  either  by  a  statutory  proceed- 
ing on  motion  or  action  or  by  a  bill  or  equitable  action.  The  groimds  are  usually 
fraud,  accident,  or  mistake  or  some  vital  defect  of  jurisdiction.  The  fact  in  such 
cases  that  there  was  a  default  is  of  persuasive  but  not  controlling  force  and  since 
the  remedies  do  not  depend  on  default  they  are  relegated  to  another  title  for  con- 
sideration.®* 

The  right  to  relief  is  lost  by  one  who  parts  with  all  interest  in  the  subject- 
matter  of  the  action.®"  A  garnishee  defendant  has  an  interest  entitling  him  to 
relief.^ 

Mistake  of  fact,^  or  excusable'  neglect  or  absence,  is  generally  a  ground  to 


93.  MarstiHer  v.  Ward,  52  W.  Va,  74  con- 
struing- Code,    1899,   c.    125,   §   4S. 

94.  Bernhard   v.   Curtis,   75  Conn.   476. 

In  tort  defendant  must  prove  contributory 
neglig-ence — Nelson  v.  Branford  Lighting:  & 
Water  Co..  75  Conn.  548.  While  the  fa^ts 
alleged  cannot  be  disproved,  defendant  mav 
cross-examine  on  the  trial  of  damages  and 
may  move  to  dismiss  for  insufficiency  of  pe- 
tition or  may  request  a  peremptory  char^ — 
O'Connor  v.    Brucker   (Ga.)    43   S.  E.   731. 

95.  Upton  V.  Town  of  Windham,  75  Conn. 
288. 

96.  In  action  ag-ainst  partnership  default 
cannot  run  ag-ainst  members  individually — 
Williams  v.  Hurley,  135  Ala.  319. 

97.  Fidelity  &  Deposit  Co.  v.  United 
States,   187  U.   S.   315,  47   Law.   Ed.  194. 

98.  See  Judgments.  Prior  to  Acts  1902, 
p.  117  the  judge  of  the  City  Court  of  Atlanta 
could  not  allow  a  defense  to  be  put  in 
after  default — Southern  Bell  Tel.  Co.  v. 
Earle   (Ga.)    45   S.   E.   319. 

99.  Browne  V.  Palmer  (Neb.)  92  N.  W. 
315. 

1.  Sprague  v.  Auffmordt,   183  Mass.  7. 

2.  Between  general  officers  of  a  corpora- 
tion as  to  wliich  one  was  to  employ  attor- 
neys to  defend  an  action  is  excuse — Barto 
V.  Sioux  City  Elec.  Co.  (Iowa)  93  N.  W.  268. 
Evidence  held  sufficient  to  disprove  inten- 
tion to  default — Id.  Mistake  in  trying  to 
serve  notice  of  appearance  due  to  illegible 
signature  of  plaintiff's  attorney  on  sum- 
mons is  sufficient — Wheeler  v.  Castor,  11  N. 
D.  347.  Illiteracy  does  not  excuse  the  con- 
founding of  the  case  with  a  pending  one  and 
consequent  default  where  the  summons  was 
read  to  defendant  at  his  request— Dean  v. 
Noel,  24  Ky.  L.  R.  969.  70  S.  W.  406.  Mis- 
taken belief  that  service  was  invalid  because 
not  made  by  officer  is  of  law  and  not  fact — 
Piano  Mfg.  Co.  v.  Murphy  (S.  D.)  92  N.  W. 
1072. 

3.  "Reasonable  excuse"   must  satisfy   dis- 


cretion of  court — Deerlng  Harvester  Co.  v. 
Thompson,  116  Ga.  418.  Misunderstanding 
which  misled  associate  counsel  to  forbear 
putting  in  defense  held  sufficient — MacCall 
v.  Looney  (Neb.)  96  N.  W.  238.  Absence  of 
attorney  subpoenaed  by  another  court — Hop- 
kins v.  Meyer,  76  App.  Div.  (N.  Y.)  365.  Neg- 
lect to  appear  due  to  being  misled  by  sum- 
mons to  wrong  term  is  excused — Patterson 
V.  Yancey,  97  Mo.  App.  681.  Reliance  on 
settlement  pendente  lite  held  sufficient  ex- 
cuse for  default — McBride  v.  McGinley,  31 
Wash.  573,  72  Pac.  105.  Permanent  depart- 
ure of  attorney  from  state  without  notice 
and  his  subsequent  failure  to  oppose  dis- 
missal excuses  plaintiff's  default  in  prose- 
cuting— Atkinson  v.  Abraham,  78  App.  Div. 
(N.  Y.)  498.  Allowance  of  insufficient  time 
(two  days)  to  answer  application  for  man- 
damus while  attorney  was  absent  held  suffi- 
cient— People  V.  Brett,  79  App.  Div.  (N.  Y.) 
631.  Neglect  may  be  attorney's  if  excus- 
able— O'Brien  v.  Leach,  139  Cal.  220,  72  Pac. 
1004. 

Erroneous  extension  of  time  to  answer  to 
a  day  out  of  term  is  no  excuse — Deering 
Harvester  Co.  v.  Thompson,  116  Ga.  418. 
Default  after  service  on  local  agent  who 
merely  informed  plaintiff  and  the  serving 
officer  that  the  general  agent  should  be 
served  but  received  no  Intimation  that  it 
would  be  done  is  not  excused — Morris  v. 
Liverpool,  L.  &  G.  Ins.  Co.,  131  N.  C.  212. 
Reliance  on  clerk's  statement  that  he  would 
not  send  over  transcript  on  change  of  venue 
until  payment  of  costs  is  not  excusable  when 
statute  obliges  him  to  Immediately  send  it 
and  gives  remedy  to  collect  costs — Patter- 
son V.  Yancey,  97  Mo.  App.  681.  Failure 
of  attorney  to  inform  one  employed  in  his 
stead  of  pendency  of  action  is  no  excuse — 
Welch  V.  Mastin  (Mo.  App.)  71  S.  W.  1090. 
Party  denied  relief  who  had  not  relied  wholly 
on  counsel  who  was  absent  at  hearing  on 
cross-complaint — Harlow  v.  First  Nat.  Bank» 
30   Ind.   App.   160.      Neglect   held   inexcusable 


916 


DEFAULTS. 


§4 


open  a  default,  and  good  cause  must  be  shown/  since  the  discretion  of  the  court  will 
ultimately  control.^  Neglect  is  not  excused  in  one  who  relied  on  counsel  to  the  ex- 
tent of  withholding  all  personal  attention.*  Existence  of  a  meritorious  defense  is 
not  alone  sufficient  but  merely  persuasive/  and  mere  error  is  not  sufficient.* 
The  proposed  defense  must  show  merit  and  not  be  merely  technical.* 
Conditions  may  be  imposed/"  but  should  not  be  where  plaintiff  has  procured 
the  default  by  fraud/^  or  where  the  default  could  not  be  entered."  Costs  are  fre- 
quently imposed  as  a  condition.^^  Times  to  plead  or  for  hearing  on  the  issues  may 
be  accelerated  on  reinstating  the  cause.^* 

Motion  or  application  must  be  at  the  same  term/"  or  within  the  time  pre- 
scribed/® unless  the  default  was  one  that  the  court  could  not  enter.^^  Everything 
necessary  to  support  the  opening  should  be  shown/*  including  a  copy  of  the  pro- 


though  party  claimed  to  have  mailed  plead- 
ings— Osborn  v.  Leach  (N.  C.)  45  S.  B.  783. 
Party  not  excused  whose  agent  had  actual 
notice — Turner  v.  J.  I.  Case  T.-M.  Co.  (N.  C.) 
45  S.  E.  781. 

4.  Lasswell  V.  Kitt  (N.  M.)  70  Pac.  561. 
Opening  refused  on  application  of  one  bear- 
ing a  name  variant  from  judgment  and 
against  whom  its  enforcement  is  not  sought 
— Meurer  v.  Berlin,  80  App.  Div.   (N.  Y.)   294. 

5.  Welch  v.  Mastin  (Mo.  App.)  71  S.  W. 
1090;  O'Brien  v.  Leach,  139  Cal.  220,  72  Pac. 
1004. 

6.  Evidence  held  insufficient  to  show  de- 
fendant's inability  to  appear,  his  counsel 
having  been  remiss  in  arranging  for  a  con- 
tinuance— Pepper  v.  Clegg,  132  N.  C.  312. 
Compare  Osborn  v.  Leach  (N.  C.)  45  S.  E. 
783. 

7.  Welch  v.  Mastin  (Mo.  App.)  71  S.  W. 
1090;  Osborn  v.  Leach  (N.  C.)  45  S.  E.  783; 
Calvert,  W.  &  B.  V.  Ry.  Co.  v.  Driskill  (Tex. 
Civ.  App.)  71  S.  W.  997;  Turner  v.  J.  I. 
Case  Threshing  Mach.  Co.  (N.  C.)  45  S.  E. 
781.  It  is  required  in  Iowa  if  opened  after 
term — Culbertson  v.  Salinger  (Iowa)  97  N. 
W.   99. 

8.  Such  as  published  service  when  defend- 
ant was  not  nonresident  but  only  absent — 
Smothers  v.  Meridian  Fertilizer  Factory 
(Ala.)  33  So.  898.  Clerical  errors  and  omis- 
sions— Acklen  V.  Fink,  95  Md.  655;  Shelby  v. 
St.   James  Asylum    (Neb.)    92   N.   W.    155. 

9.  Sutherland  v.  Mead,  80  App.  Div.  (N. 
T.)  103;  Johnson  v.  Richardson  (Kan.)  73 
Pac.  113;  Childs  v.  Ferguson  (Neb.)  93  N.  W. 
409.  Allegations  of  contributory  negligence, 
assumed  risk,  denial  of  negligence  and  of 
injuries  complained  of  is  meritorious — Bar- 
to  V.  Sioux  City  Elec.  Co.  (Iowa)  93  N.  W. 
268.  Limitation  is  meritorious — Wheeler  v. 
Castor,  11  N.  D.  347.  Defense  of  fraud  which 
he  failed  to  make  by 'defaulting  after  gen- 
eral denial  will  not  avail — Hoffman  v.  Lou- 
don, 96  Mo.  App.  184.  Must  be  adjudged  mer- 
itorious— Waters  v.  Raker  (Neb.)  96  N.  W. 
78. 

If  sufficient  to  defeat  the  judgment  it  may 
suffice  though  technical  as  where  the  case 
cannot  be  made  for  lack  of  witnesses  and 
there  is  testimony  available  to  make  de- 
fense— Culbertson  v.  Salinger  (Iowa)  97  N. 
W.  99. 

10.  Chicago  v.  English,  198  111.  211.  Rea- 
sonable to  require  immediate  filing  of  plead- 
ings and  trial  In  three  days — Id. 

11.  Defendant  wife  not  required  to  sub- 
mit  to   Interrogation   where   her   husband  as 


co-defendant  colluded  with  plaintiff — Rauer's 
Law  &  Collection  Co.  v.  Gilleran,  138  Cal. 
352,    71   Pac.   445. 

12.  Payment  of  counsel  fee  and  under- 
taking to  pay  judgment  not  proper  on  ex- 
cusable default  of  answering  defendant — 
Hopkins  v.  Meyer,   76  App.  Div.   (N.   Y.)    365. 

13.  Atkinson  v.  Abraham,  78  App.  Div. 
(N.  Y.)  498.  Items  enumerated — RandaU  v. 
Shields,    80  App.  Div.    (N.   Y.)    625. 

14.  Hearing  on  demurrer  in  three  days 
and  trial  a  week  later  without  time  to  plead 
over  held  proper — Chicago  v.  English,  198 
111.  211.  When  a  cause  is  reinstated  and 
demurrer  filed  it  need  not  be  sent  to  the 
contested  motion  calendar  but  may  be  ar- 
gued  sooner — Id. 

15.  Leavitt  v.  Bolton,  102  111.  App.  582; 
First  Nat.  Bank  v.  Flynn,  117  Iowa,  493. 
It  will  be  deemed  timely  if  filed  at  term 
though  not  heard  till  day  of  next  term  and 
though  record  does  not  show  that  motion 
was  called  and  continued — Donaldson  v. 
Copeland,  201  111.  540.  The  judgment  be- 
came absolute  where  while  standing  before 
an  assessor  a  motion  in  court  for  continu- 
ance was  not  prosecuted  and  judgment  of 
neither  party  was  entered — Green  v.  Fitch- 
burg   R.    Co.,    116    Fed.    928. 

Hi.  If  within  60  days  "after  the  party 
has  notice"  it  matters  not  that  summons 
was  "served"  eight  years  before — Coleman 
V.  Akers,  87  Minn.  492,  construing  Sp.  Laws 
1889,  c.  351.  In  city  court  of  Macon  not 
after  final  judgment — O'Connell  Bros.  v. 
Friedman  (Ga.)  45  S.  E.  668.  Two  years 
time  "after  notice"  when  service  is  by  mail 
— Atkinson  v.  Abraham,  78  App.  Div.  (N.  Y.) 
498,    reconciling   Code   Civ.   Proc.   §§   724,    798. 

17.  Default  pending  bankruptcy — First 
Nat.  Bank  v.  Flynn,  117  Iowa,  493.  Such  a 
default  (entered  prematurely)  is  an  irreg- 
ularity remediable  by  motion  to  set  aside 
judgment  within  three  years — Reed  v.  Nichol- 
son,   93   Mo.   App.    29. 

18.  Excuse  for  default — Childs  v.  Fergu- 
son (Neb.)  93  N.  W.  409.  Allegations  of 
mistake  as  excuse  for  neglect  held  suffi- 
cient— MacCall  v.  Looney  (Neb.)  96  N.  W. 
238.  Refused  in  divorce  to  wife  personally 
served  and  who  did  not  deny  guilt  except 
to  say  that  she  had  a  "good  defense"  and 
presented  no  affidavit  of  merits  or  answer — 
Maguire  v.  Maguire,  75  App.  Div.  (N.  Y. ) 
534.  Objection  that  petition  did  not  show 
that  term  had  ended  when  petitioner  first 
knew  of  judgment  must  be  taken  below — 
MacCall  v.   Looney   (Neb.)    96  N.  W.   238. 


§1 


DEPOSITIONS. 


917 


posed  answer/'  or  its  equivalent.*"  There  should  be  an  affidavit  of  merits,"  unless 
the  court  dispenses  with  one-^  or  the  judgment  is  irregular  on  its  face.*^ 

If  the  petition  to  open  a  judgment  be  not  diligently  prosecuted  and  proved  it 
will  be  denied.^*     The  moving  party  has  the  burden  of  proof.^' 

The  judgment  should  ordinarily  be  opened  and  not  stricken  off,^'  and  may 
be  retained  as  security.*^  A  judgment  which  is  joint  and  several  need  not  be  va- 
cated as  to  answering  co-parties  of  the  applicant.-*  Extension  of  time  to  plead 
may  be  granted  on  notice  of  motion  only  to  open  default.^*  The  order  is  some- 
times required  to  embody  findings.*"  If  it  is  still  pending,  an  order  opening  de- 
fault may  itself  be  set  aside.*^ 

§  5.  Operation  and  effect  of  default. — Generally  speaking  the  defaulting 
party  admits  every  issuable  allegation/^  but  may  assail  the  judgment  for  funda- 
mental defects/*  and  may  appear  and  cross-examine  on  an  issue  to  try  damages.** 
Statutes  sometimes  provide  for  saving  defenses  by  timely  notice.*^  A  default 
judgment  is  a  conclusive  adjudication.*" 

DEPOSITIONS. 

§  1.  Occasion  or  necessity;  right  to  take. — Where  the  only  witness  who  could 
testify  as  to  the  main  point  in  issue  resided  in  another  state  and  was  unwilling  to 


19.  Childs  V.  Ferguson  (Neb.)  93  N.  "W. 
A09;  Waters  v.  Raker  (Neb.)  96  N.  W.  78; 
Meyer  v.  City  of  New  York,  80  App.  Div. 
(N.  Y.)  584.  Copy  of  proposed  pleading 
should  be  annexed  to  motion  papers — 
Schumpp  V.  Interurban  St.  Ry.  Co.,  81  App. 
Div.    (N.   Y.)    576. 

20.  Court  may  take  affidavit  in  lieu — 
Wheeler  v.  Castor,  11  N.  D.   347. 

21.  The  affidavit  or  verification  must  be 
positive.  Not  on  information  and  belief — 
Smothers  v.  Meridian  Fertilizer  Factory 
(Ala.)  33  So.  898.  It  must  be  objected  to  be- 
low for  defects — Headings  v.  Gavette,  83 
N.   Y.   Supp.   1017. 

23.  Crane  v.  Sauntry  (Minn.)  96  N.  W. 
794. 

23.  Hence  one  is  required  where  there 
was  an  answer,  though  filed  without  au- 
thority, but  no  process — Chambers  v.  Gal- 
lup   (Tex.   Civ.   App.)    70   S.   W.   1009. 

24.  It  was  improperly  verified  and  peti- 
tioner did  not  appear  on  hearing — Smothers 
v.  Meridian  Fertilizer  Factory  (Ala.)  33  So. 
898. 

2.'>.  Of  diligence — Wheeler  v.  Castor,  11 
N.  D.  347.  If  there  is  a  conflict  in  affidavits 
relief  will  be  denied — Hoffman  v.  Loudon,  96 
Mo.  App.  184.  Affidavits  denying  service 
held  sufficient  against  sheriff's  return — Park- 
er V.  Van  Dorn  Iron  Works,  23  Ohio  Circ.  R. 
444. 

Evidence.  Actual  notice  to  agent  is  pre- 
sumed to  have  passed  to  defaulting  prin- 
cipal unless  the  contrary  is  shown — Turner 
V.  J.  I.  Case  Threshing  Mach.  Co.  (N.  C.)  45 
S.  E.  781.  Record  held  sufficient  to  show  no 
service  on  one  partner — Ricaud  v.  Alderman, 
132  N.  C.  62.  Facts  held  sufficient  on  review 
though  not  strongly  preponderating — Crane 
V.   Sauntry    (Minn.)    96   N.   W.    794. 

26.  Davidson  v.   Miller,    204   Pa.    223. 

27.  In  Municipal  Court — Long  Branch 
Pier  Co.  v.  Crossley,  40  Misc.    (N.  Y.)    249. 

28.  Patterson  v.  Yancey,   97  Mo.  App.  681. 


29.  Headings  v.  Gavette,  83  N.  Y.  Supp. 
1017. 

30.  The  New  York  Municipal  Court  must 
recite  the  grounds  on  which  it  acted  (Consol. 
Act,  §  1367) — Johnson  v.  Manning,  80  App. 
Div.  (N.  Y.)  368.  Finding  of  neglect  with- 
out excuse  sustains  refusal  without  finding 
on  merit  of  defense — Turner  v.  J.  I.  Case 
Threshing  Mach.  Co.  (N.  C.)  45  S.  B.  781. 
Justice's  findings  not  binding  on  Superior  or 
reviewable   in   Supreme  Court — Id. 

31.  Reed  v.  Nicholson,  93  Mo.  App.  29. 
When  the  case  is  ordered  set  down  for  a 
certain  day  the  court  to  which  it  is  sent 
cannot  move  it  forward  without  notice — 
Martin  v.  Universal  Trust  Co.,  76  App.  Div. 
(N.   Y.)    320. 

32.  Chicago  v.  English,  198  111.  211.  Only 
cause  of  action  and  not  substantial  dam- 
ages— Osborn  v.  Leach  (N.  C.)  45  S.  B.  783. 
Execution  of  mortgage  is  admitted  by  de- 
fault of  a  verified  answer — Downing  North 
Denver  Land  Co.  v.  Burns,  30  Colo.  283,  70 
Pac.  413.  The  only  question  not  admitted  In 
action  for  unliquidated  damages  is  amount 
— Southern  Bell  Tel.  Cb.  v.  Barle  (Ga.)  45 
S.  E.  319.  In  an  action  for  rent  it  is  need- 
less to  show  when  it  accrued — Chicago  v. 
English,   198   111.    211. 

33.  Wolfe   V.    Murray,    96    Md.    727. 

34.  O'Connor  v.  Brucker  (Ga.)  43  S.  E. 
731. 

35.  In  an  action  for  damages  for  failure 
to  put  a  lessee  in  possession,  the  wrongful 
holding  over  of  a  former  tenant  as  a  de- 
fense is  admitted  away  unless  saved  by  the 
statutory  notice — Bernhard  v.  Curtis,  75 
Conn.    476. 

3C.  See  generally  Former  Adjudication. 
Judgment.  Party  as  "trustee"  is  not  barred 
by  judgment  against  it  not  designated  as 
trustee — -Farmers'  Loan  &  Trust  Co.  v.  Es- 
sex (Kan.)  71  Pac.  268.  In  support  of  it 
a  demurrer  was  presumed  to  have  been  filed 
too  late — Grant  v.  Commercial  Nat.  Bank 
(Neb.)    93   N.   W.    185. 


918 


DEPOSITIONS. 


§2 


appear  on  the  trial,  a  commission  to  take  his  testimony  was  properly  issued/'^  and 
he  may  be  examined  on  oral  questions  where  he  is  likely  to  testify  unfairly.^*  A 
busy  physician  is  not  within  the  words, — "a  witness  about  to  depart  or  who  by  rea- 
son of  age,  sickness  'or  other  causes' "  shall  be  unable  or  unlikely  to  attend.^^  The 
Federal  practice  allows  depositions  where  the  witness  lives  over  one  hundred  miles 
by  the  shortest  route  usually  traveled.*" 

An  application  to  take  a  deposition  under  a  dedimus  postestatem  as  authorized 
by  U.  S.  Eev.  Sts.  §  866,  cannot  be  granted  under  section  863,  which  relates  only 
to  the  taking  of  depositions  de  bene  esse  and  which  section  is  expressly  excluded 
from  the  operation  of  section  866.*^ 

Under  the  chancery  rule  in  Alabama,  a  deposition  cannot  be  taken  until  the 
case  is  at  issue  by  sufficient  answer  or  decree  pro  conf  esso  and  should  be  suppressed 
where  taken  before  such  time.*^  Depositions  may  not  be  taken  by  a  person  before 
he  has  properly  become  a  party  to  the  suit  particularly  where  there  are  nonresident 
defendants  who  have  only  been  served  by  publication  and  have  not  appeared." 

A  deposition  may  be  taken  for  use  on  motion  for  a  new  trial,**  and  in  proceed- 
ings in  probate  and  administration.*"* 

An  order  for  the  examination  of  witnesses  to  preserve  testimony  is  properly 
vacated  where  it  does  not  appear  that  the  applicant  is  in  hazard  of  losing  such 
testimony.**  The  proceeding  to  perpetuate  testimony  may  be  terminated  by  stipu- 
lation allowing  another  to  give  the  evidence  of  the  party  subsequently  deceased.*^ 

§  2.  Procedure  to  obtain  deposition.  In  Nebraska  there  is  no  code  provision 
requiring  leave  of  court  to  entitle  one  to  take  a  second  deposition  of  the  same  wit- 
ness for  use  in  the  same  case.*^ 

A  California  superior  court  sitting  in  probate  may  issue  a  commission.*"  The 
issuance  of  a  commission  to  take  testim.ony  is  a  matter  of  judicial  discretion  in  New 
York,  to  be  exercised  on  the  facts  presented  in  a  given  case.*^  Wliere  the  opposing 
party  files  cross  interrogatories  and  takes  out  a  commission  for  the  witness'  deposi- 
tion, the  party  initiating  proceedings  for  the  deposition  is  entitled  to  a  commission, 
though  the  full  time  has  not  elapsed  since  the  service  of  notice  and  precept  on  the 
opposite  party."** 


37.  Frounfelker  v.  Delaware,  L.  &  W.  R. 
Co.,  81  App.  Div.   (N.  Y.)   67. 

38.  Witness  was  in  the  employ  of  party 
against  whom  his  testimony  was  sought — 
Frounfelker  v.  Delaware,  L.  &  W.  R.  Co.,  81 
App.  Div.    (N.   Y.)    67. 

39.  Code,  Miss,  1892,  §  1747 — American 
Exp.  Co.  V.  Bradford   (Miss.)   33   So.   843. 

40.  Not  by  a  "short  line"  or  air  line — 
Jennings  v.  Menaugh,  118  Fed.  612. 

41.  North  American  Transp.  &  Trading 
Co.  V.  Howells   (C.  C.  A.)    121   Fed.   694. 

42.  Henderson   v.   Hall,   134   Ala.    455. 

43.  Riviere  v.  Wilkens  (Tex.  Civ.  App.) 
72   S.  W.   608. 

44.  Code  Civ.  Proc.  N.  Y.  §  885 — O'Connor 
v.  McLaughlin,   80  App.  Div.    (N.  Y.)    305. 

45.  Code  allows  it  in  "any  action  in  any 
court" — Reformed  Presbyterian  Church  v. 
McMillan,  31  Wash.  643,  72  Pac.  502.  The 
brother  of  an  intestate  living  in  a  foreign 
country  not  cited  to  appear  at  the  account- 
ing of  the  administrator  is  entitled  to  an 
order  for  a  commission  issued  with  inter- 
rogatories for  his  examination  on  a  pro- 
ceeding by  him  for  an  accounting  in  which 
proceeding    all    the    parties    who    were    cited 


and  did  appear  on  the  original  accounting 
may  join  in  the  application  for  the  com- 
mission and  be  represented  in  the  execu- 
tion thereof — In  re  Killan's  Estate,  172  N. 
Y.  547. 

46.  In  re  Fulton,  75  App.  Div.   (N.  Y.)   623. 

47.  A  stipulation  that  plaintiff  might  tes- 
tify as  to  what  decedent  said  was  the  cause 
and  extent  of  his  injury  as  a  consideration 
for  the  abandonment  of  the  proceeding  to 
perpetuate  deceased's  testimony,  is  broad 
enough  to  admit  evidence  that  deceased 
stated  on  returning  home  that  he  was  a 
passenger  on  defendant's  freight  train  and 
that  when  at  a  certain  station  the  trainmen 
caused  the  car  in  which  he  was  riding  to 
give  a  violent  jerk  which  threw  him  from 
his  seat  against  a  door  causing  injuries  to 
his  head,  shoulder,  side  and  back — Thomp- 
son V.  Fort  Worth  &  R.  G.  Ry.  Co.  (Tex. 
Civ.  App.)    73  S.  W.   29. 

49.  Peycke  v.   Shinn    (Neb.)    94  N.   W.   135. 

50.  Reformed  Presbyterian  Church  v. 
McMillan,  31  Wash.  643.   72  Pac.  502. 

51.  Frounfelker  v.  Delaware,  L.  &  W.  R. 
Co.,   81  App.  Div.    (N.  Y.)   67. 

52.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Skaggs 
(Tex.  Civ.  App.)   74  S.  W.   783. 


§  3 


TAKING  THE  TESTIMONY  OR  EVIDENCE  ADDUCED. 


919 


On  the  iRsiiance  of  du  open  commission  to  take  testimony,  both  parties  should 
have  the  right  to  name  ■witnesses  whose  examination  is  desired,^^  and  the  order 
should  name  the  witnesses  to  be  examined.^*  A  case  for  the  grantin£:  of  an  open 
commission  to  examine  witnesses  upon  oral  questions  exists  in  the  contest  of  a  will 
where  the  testator  and  all  the  witnesses  to  capacity  and  influences  surrounding  tes- 
tator reside  in  a  distant  state.^^  Where  the  first  commission  is  an  open  one  allow- 
ing the  examination  of  witnesses  that  might  be  called  by  either  party  in  a  foreign 
country,  a  court  may  properly  refuse  a  second  commission  when  the  affidavits  of 
the  proposed  testimony  showed  no  contradiction  of  testimony  already  taken. ^" 

Interested  parties  should  have  notice  of  the  taking"'^  unless  their  interests  are 
represented  by  other  parties,^^  but  where  parties  are  numerous  or  interest  is  remote, 
code  provisions  sometimes  dispense  with  service  on  all  of  them.'^® 

In  some  states  the  notice  cannot  be  served  by  a  party  to  the  action.®"  Notice 
"not  less"  than  ten  days  excludes  the  day  of  service  and  the  tenth  day  there- 
after.®^ 

§  3.  Taling  the  testimony  or  evidence  adduced. — A  commissioner  to  take  tes- 
timony for  use  in  a  case  in  another  state  derives  his  authority  from  the  foreign  state 
and  court,®^  and  where  the  commission  names  a  particular  person  to  take  the  depo- 
sition, it  cannot  be  taken  by  another,  though  the  person  named  is  absent  and  can- 
not act.®'  The  commissioner  to  take  testimony  for  use  in  a  foreign  court  may  be 
a  resident  of  the  foreign  state.®*  The  deposition  may  not  be  taken  by  a  commis- 
sioner or  notary  who  is  the  attorney  of  one  of  the  parties,  and  this  though  there  is 
no  statutory  provision  against  such  practice.®" 

Where  a  deposition  is  taken  at  the  place  designated  it  is  not  important  that 
there  is  a  variance  between  the  notice  and  certificate  as  to  the  name  of  the  occu- 
pant of  the  office.®®  In  New  Jersey,  formal  proof  of  the  commission  need  not  be 
presented  to  support  an  order  for  subpoena,®^  nor  is  such  an  order  a  rule  which 
must  be  entered  within  ten  days.®^  A  motion  to  the  court  to  quash  it  and  the  writ 
when  made  by  a  judge  does  not  require  a  certiorari  since  it  is  alrer.dy  before  the 
court.®^  Such  an  order  is  illegal  so  far  as  it  directs  the  production  of  the  docu- 
ments if  the  commission  does  not  require  them.''®     There  is  no  authority  to  issue 


53,  54.     Corbin  v.  Anderson,  82  N.  T.  Supp. 

683. 

.'>.■>.  Code  Civ.  Proc.  N.  T.  §  897 — Corbin  v. 
Anderson,  82  N.  T.  Supp.   683. 

56.  O'CaHaghan   v.   O'Brien.    116    Fed.    934. 

57.  Vansht  V.  Murray,  24  Ky.  L.  R.  1587. 
71  S.  W.  924. 

58.  In  taking  a  deposition  in  support  of 
a  claim  against  an  estate,  it  is  sufficient  to 
notify  tlie  executor  and  any  other  person 
wlio  may  have  appeared  to  resist  the  claim, 
but  it  is  not  necessary  to  notify  every  per- 
.son  -who  has  an  ultimate  interest  in  the 
disposition  of  the  property — Deuterman  v. 
Ruppel,  103  111.  App.  106. 

59.  A  code  provision  that  depositions 
may  be  taken  on  notice  to  the  adverse  party 
if  there  be  only  one.  if  there  be  several,  to 
any  one  of  them  who  is  a  real  party  in  in- 
terest, does  not  authorize  one  of  two  de- 
fendants to  take  depositions  by  service  of 
notice  on  the  sole  plaintiff  and  thereby 
upon  his  co-defendant  (Burns'  Rev.  St.  Ind. 
1901.  §  423) —  Black  v.  Marsh  (Ind.  App.)  67 
N.    B.    201. 

60.  Deposition  taken  thereunder  inadmis- 
sible (Rev.  Laws  Mass.  c.  175,  §  29) — O'Con- 
nell    v.    Dow,    182   Mass.    541. 


61.  Code,  S.  C.  §  2881— Williams  v.  Hal- 
ford   (S.  C.)    45  S.  E.  207. 

62.  In  re  Canter,  40  Misc.  (N.  Y.)  126. 

63.  Provident  Sav.  Life  Assur.  Soc.  v. 
Cannon,   103  111.   App.   534. 

64.  In  re  Canter,  40  Misc.   (N.  Y.)   126. 

65.  Swink  v.  Anthony,  96  Mo.  App.  420; 
Hacker  v.  United  States,  37  Ct.  CI.  86. 
Where  the  commissioner  certified  that  he 
v/as  not  of  counsel  or  kin  to  either  of  the 
parties  in  said  cause,  an  objection  to  the 
certificate  on  the  ground  that  it  did  not  cer- 
tify that  the  commissioner  was  of  counsel 
or  of  kin  to  any  one  or  either  of  the  parties 
to  the  cause  was  without  merit — Bickley  v. 
Bickley,   136  Ala.   548. 

66.  Particularly  where  the  objector  was 
present  by .  representative  at  the  taking  of 
the  deposition — Henry  Sonneborn  &  Co.  v. 
Southern  Ry.  Co.,  65  S.  C.  502. 

67.  In  re  Edison,   68  N.  J.  Law,   494. 

68.  Rule  40  of  New  Jersey  Supreme  Court 
not  applicable — In  re  Edison,  68  N.  J.  Law, 
494. 

69.  It  is  filed  with  the  clerk — In  re  Edi- 
son, 68  N.  J.  Law,  494. 

70.  In  re  Edison,  68  N.  J.  Law,  494. 
Query  if  it  can  be  allowed  at  all  (Statute 
allows   only    "subpoena") — Id. 


g^Q  DEPOSITIONS.  §  4 

a  subpoena  where  there  is  nothing  in  the  application,  order,  or  commission  showing 
wheuier  the  commission  was  to  be  executed  within  or  without  the  state  in  which 
the  action  was  pending.'^  There  is  no  abuse  of  discretion  in  refusing  a  continu- 
ance for  want  of  a  witness,  where  the  commission  for  the  taking  of  his  deposition 
was  issued  in  time,  but  was  not  placed  in  the  hands  of  an  officer  to  be  executed.''^ 

In  Illinois,  a  commissioner  may  within  reasonable  limitations  and  for  reason- 
able cause  adjourn  the  taking  of  a  deposition." 

Commissioners  usually  have  ample  means  to  compel  witness  to  testify.''* 

A  witness  on  a  second  examination  may  read  over  a  copy  of  his  testimony 
given  on  a  previous  examination  and  subscribe  such  testimony  as  his  deposition." 

Cross-examination  must  not  be  unreasonably  interfered  with  by  the  commis- 
6ioner.^«  One  allowed  to  appear  after  depositions  have  been  taken  is  bound  by  the 
depositions,  but  may,  on  application,  cross-examine  the  witnesses,"  or  on  deposi- 
tions taken  by  a  new  party  original  parties  may  also  examine.'^* 

A  certificate  that  a  deposition  was  reduced  to  writing  by  a  specified  person  and 
subscribed  by  the  witness  in  the  presence  of  the  notary  shows  sufficiently  that  the 
deposition  was  both  reduced  to  writing  and  subscribed  to  in  the  presence  of  the 
notary.''^  A  misrecital  that  exhibits  are  attached  may  be  disregarded  if  th»y  are 
fully  identified.^"  In  South  Carohna  a  witness  is  not  required  to  sign  in  the  pres- 
ence of  the  officer.** 

A  commissioner  is  not  to  be  denied  reasonable  compensation  for  his  services 
by  the  fact  that  there  is  no  express  statutory  provision  allowing  such  compensation.*^ 
The  party  at  whose  instance  the  deposition  is  taken  is  chargeable  with  the  fees  al- 
lowed to  the  commissioner,  who  may  recover  if  the  losing  party  fails  to  pay  them 
as  costs  taxed.*^  In  Georgia  such  fees  are  not  to  be  regarded  as  taxable  costs.**  A 
continuance  mav  be  granted  where  the  commissioner  withholds  a  deposition  on  an 
illegal  claim  of  fees.*' 

§  4.  Returning  and  filing.  A  deposition  withdrawn  from  a  case  must  be 
refiled  to  entitle  it  to  be  read  on  the  trial.** 

§  5.  Suppression  before  trial. — As  a  deposition  may  be  used  by  either  party 
and  if  suppressed  may  be  retaken,  trivial  objections  not  promptly  made  will  not  be 
considered  sufficient  for  their  suppression,  where  no  harm  will  result.*^  The  mo- 
tion must  be  made  within  the  time  fixed  by  statute,**  and  before  the  cause  is  called 
for  trial.**     The  deposition  will  not  be  suppressed  because  taken  during  term  in 


71.  Code  Civ.  Proc.  N.  Y.  §  914 — In  re 
Canter,  82  App.  Div.   (N.  Y.)   103. 

72.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Skaggs 
(Tex.  Civ.  App.)    74   S.  W.   783. 

73.  Bueb   V.   Dreessen,   104   111.   App.    409. 

74.  Bernard  v.  Guidry,  109  La.  451. 

75.  Samuel  Bros.  Co.  v.  Hostetter  Co.  (C. 
C.  A.)    118  Fed.  257. 

76.  Hacker  v.  United  States,  37  Ct.  CI.  86. 

77.  Deuterman  v.  Ruppel,  103  111.  App. 
106. 

78.  All  parties  interested  who  appeared 
on  an  administrator's  accounting  may  join 
in  application  for,  and  take  part  in  exam- 
ination under  a  commission  which  issues  in 
a  further  accounting  taken  at  the  instance 
of  an  absent  heir — In  re  Killan's  Estate,  172 
N.   Y.    547. 

79.  Bohilva  v.  Priddy,  68  Ohio  St.  373. 

80.  Black  V.  Webber  (Neb.)  96  N.  W. 
606. 

81.  The  genuineness  of  the  evidence  In 
the  deposition  certified  to  by  the  officer  is 
sufficient — J.  Harzburg  &  Co.  v.  Southern  Ry. 


Co.,  65  S.  C.  539.  Code  S.  C.  1902.  §  2881— 
Henry  Sonneborn  &  Co.  v.  Southern  Ry. 
Co..    65    S.    C.    502. 

82,  S3.  Paxson  v.  MacDonald,  97  Mo.  App. 
165. 

84.  Almand  v.  Atlantic  Coast  Line  R.  Co. 
(Ga.)    45  S.  E.   302. 

85.  The  moving  party  need  not  pay  the 
fees  demanded  to  make  out  a  case  of  proper 
diligence — Hall  v.  Hale's  Estate,  202  111.  326. 

86.  Peycke  v.  Shinn  (Neb.)  94  N.  W.  135. 

87.  Hughes  V.  Humphreys,  102  111.  App. 
194. 

88.  Under  a  code  provision,  expressly  pro- 
viding that  if  depositions  are  not  filed  during 
the  term,  exceptions,  other  than  for  incompe- 
tency, must  be  filed  by  noon  of  the  third  day 
after  such  filing,  a  motion  to  suppress  ten 
days  after  the  depositions  were  filed  was 
properly  overruled  (Code,  5  4712) — Casley  v. 
Mitchell   (Iowa)    96  N.  W.  725. 

89.  Samuel  Bros.  Co  v.  Hostetter  Co.  (C. 
C.  A.)   118  Fed.  257;  Pittsburg,  C,  C.  &  St.  L. 


§  b 


OPENING  AND  OBJECTIONS;   USE  AS  EVIDENCE. 


921 


which  case  is  pending  in  the  absence  of  a  statute  against  such  practice,'"  nor  because 
the  party  received  no  notice  of  its  taking  where  the  notice  was  served  on  his  attor- 
ney who  sent  it  through  the  mail  to  his  client  who  did  not  receive  it,®^  nor  because 
improperly  opened  by  the  clerk  without  a  special  order  of  the  court  where  no  harm 
has  resulted,"-  nor  because  answers  are  not  responsive  where  questions  were  not  com- 
prehended/"'' or  the  evidence  immaterial.®*  Where  the  deposition  considered  as  a 
whole  showed  that  a  question  was  substantially  answered,  the  deposition  will  be 
admitted  though  the  party  refused  to  answer  the  question  on  cross-examination  and 
this  particularly  where  the  witness  died  before  the  trial. "^  Where  a  party  has  se- 
cured a  commission  to  take  a  witness'  deposition  on  cross  interrogatories  propounded 
by  him  subsequent  to  a  commission  issued  to  the  opposite  party,  and  this  deposition 
is  on  file  but  is  not  used,  the  refusal  to  quash  the  deposition  taken  by  the  opposite 
party  on  account  of  the  premature  issuance  of  his  commission  is  not  giound  for 
reversal."* 

§  6.  Opening  and  objections;  use  as  evidence. — A  deposition  may  not  be 
opened  for  further  examination  as  to  a  matter  not  material  or  not  disputable.®^ 

Objections  to  depositions  should  be  made  in  writing,"^  and  where  based  on  other 
grounds  than  incompetency  or  irrelevancj''  should  be  presented  to  the  court  before 
the  commencement  of  the  trial,"®  and  passed  on  before  the  trial  begins.^  Generally 
a  party  may  not  object  to  testimony  adduced  by  himself,^  or  to  depositions  admitted 
under  his  stipulation.^  Appearance  before  the  commission  and  cross-examination 
of  witnesses  without  taking  any  exceptions  waives  an  objection  as  to  the  regularity 


Ry.  Co.  V.  storey,  104  111.  App.  132.  In  this 
case  nearly  two  months  elapsed  after  the  er- 
roneous opening — Hughes  v.  Humphreys,  102 
111.  App.   194. 

90.  Donovan  v.  Hibbler  (Neb.)  92  N.  W. 
€37. 

91.  Party  should  have  asked  a  postpone- 
ment and  opportunity  to  cross  examine — 
Diedrich  v.  Diedrich  (Neb.)  94  N.  W.  536. 

92.  Hughes  v.  Humphreys,  102  111.  App. 
194. 

93.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Baum- 
garten  (Tex.  Civ.  App.)  72  S.  W.  78;  Houston 
&  T.  C.  R.  Co.  V.  Bell  (Tex.  Civ.  App.)  73  S. 
W.  56. 

94.  Where  a  witness  whose  deposition  was 
taken  was  one  of  the  complainants  in  the 
suit  and  the  only  object  in  asking  for  a 
contract  was  to  show  interest  of  witness, 
his  refusal  to  produce  same  was  no  ground 
for    striking    his    deposition — Bullock    Elec, 


Co.    V.    Crocker   Wheeler    Co.,    121    Fed. 
Shannon  v.  Castner,   21  Pa.  Super.   Ct. 


Mfg. 
200. 

95, 
294. 

96.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Skaggs 
(Tex.  Civ.  App.)   74  S.  W.   783. 

97.  To  show  that  deponent  who  is  a  party 
and  in  court  has  an  interest — Bullock  Elec. 
Mfg.  Co.  v.  Crocker  Wheeler  Co.,  121  Fed. 
200. 

98.  Willeford  v.  Bailey,  132  N.  C.  402. 

99.  Woodard  v.  Cutter  (Neb.)  96  N.  W.  54; 
Shannon  v.  Castner,  21  Pa.  Super.  Ct.  294. 
Where  an  entire  deposition  is  not  asked  to 
be  suppressed,  the  customary  method  of  pro- 
cedure is  to  wait  until  the  deposition  is  of- 
fered in  evidence  before  objections  to  cer- 
tain questions  and  answers  contained  In  the 
deposition  are  passed  upon,  but  this  is  not  an 
inflexible  rule,  and  where  nothing  but  ir- 
relevant and  improper  testimony  is  stricken 
from    the    deposition,    the    action    is    without 


prejudice,  whether  done  before  or  after  it  is 
actually  offered  in  evidence — Stull  v.  Stull 
(Neb.)   96  N.  W.   196. 

Where  depositions  are  filed  but  not  used 
in  a  case  pending  in  a  county  court,  excep- 
tions may  be  filed  at  any  time  before  the 
deposition  is  used  at  trial  on  appeal — Collier 
v.  Gavin  (Neb.)   95  N.  W.  842. 

1.  Willeford  v.  Bailey,  132  N.  C.  402. 

2.  A  party  taking  a  deposition  and  hav- 
ing copies  of  papers  attached  thereto  as  ex- 
hibits may  not  by  a  general  objection  pre- 
vent their  introduction  as  evidence  by  his 
opponent — George  Adams  &  Frederick  Co.  v. 
South  Omaha  Nat.  Bank  (C.  C.  A.)  123  Fed. 
641.  Where  a  witness  in  response  to  inter- 
rogatories filed  by  the  objector  said  he  had 
received  certain  instructions  by  letter  and 
the  answer  was  offered  in  evidence  by  tha 
other  parties,  the  answer  being  responsive 
and  called  for  by  the  objector,  his  objection 
on  the  ground  that  the  letter  itself  was  not 
produced  was  properly  overruled — Curtis  v. 
Parker,  136  Ala.  217.  Under  a  code  provi- 
sion that  a  deposition  shall  have  the  same 
effect  as  the  oral  testimony  of  the  witness 
and  objections  to  the  competency  of  ques- 
tions or  answers  may  be  made  as  if  the  wit- 
ness was  personally  examined,  a  defendant 
at  whose  instance  plaintiff's  deposition  was 
taken,  though  indorsing  part  of  it,  may  ob- 
ject to  other  parts  as  hearsay  (Code  Civ. 
Proc.  N.  Y  §  883) — Kramer  v.  Kramer,  8C 
App.  Div.  (N.  Y.)  20. 

3.  Under  a  stipulation  allowing  the  use  of 
a  deposition  taken  in  a  former  suit  and  that 
either  party  should  have  the  right  to  use 
such  additional  evidence  as  either  might  de- 
sire and  should  be  competent  under  the  pleas, 
no  objection  could  be  raised  on  the  trial  to 
the  admissibility  of  depositions,  but  only  to 
the  additional  evidence — Parlin  v.  Hutson, 
198  111.  389. 


92: 


DESCENT  AND  DISTRIBUTION. 


fe    i 


of  the  commission.*  In  Nebraska,  it  is  no  objection  to  the  reading  of  a  deposi- 
tion that  the  officer  before  whom  it  is  taken  does  not  certify  that  the  witnesses  were 
sworn  as  well  after  as  before  testifying,^  The  fact  that  a  stranger  to  a  deposi- 
tion might  have  introduced  it  in  evidence  as  against  those  who  were  parties  to  it 
does  not  affect  his  right  to  object  to  its  introduction  by  them  as  against  him.® 

A  deposition  taken  and  filed  is  for  the  use  of  either  party  to  the  action/  and 
where  one  party  has  offered  a  part  of  a  deposition  taken  by  him,  the  other  party 
mav  offer  other  parts  thereof.*  A  deposition  de  bene  esse  for  one  trial  is  competent 
for  any  subsequent  trial  of  the  case.^  A  second  deposition  is  admissible  within 
the  discretion  of  the  court  like  the  recall  of  a  witness  for  second  examination.^"  A 
deposition  which  has  been  quashed  is  inadmissible  for  any  purpose^^  until  the 
order  has  been  set  aside.^^  A  deposition  is  not  competent  against  one  not  present 
at  the  time  it  was  taken  and  to  whom  no  notice  was  given  where  he  properly  objects 
to  it.^'  A  showing  of  nonresidence  of  depon'^nt  is  sufficient,  where  the  notice  states 
that  he  is  a  nonresident  and  witness  has  previously  stated  that  he  lived  in  another 
state  and  the  deposition  so  states  as  does  also  the  return.^*  There  is  a  presumption 
that  the  witness  continued  to  reside  in  a  distant  state  where  he  was  at  the  time  a 
deposition  was  taken  and  the  fact?  of  his  residence  at  a  greater  distance  than  one 
himdred  miles  need  not  be  proved.^' 

A  party  taking  a  deposition  may  read  the  deposition,  though  the  witness  is 
present  at  the  trial  for  his  opponent,  defendant  being  allowed  to  fully  cross-examine 
the  witness  before  the  jury.^®  A  deposition  incompetent  because  not  fiJed  as  re- 
quired by  statute  or  because  the  party  is  present  in  court  may  be  introduced  as  his 
■^vritten  admission.^^  The  deposition  of  a  witness  is  admissible  where  he  is  physically 
unable  to  attend.^* 

Exhibits  sufficiently  identified  by  markings  of  the  notary  and  testimony  of 
witnesses  who  saw  them  issued  may  be  considered  in  connection  with  depositions, 
though  not  attached  as  recited.^' 

DESCENT  AND  DISTRIBUTION. 

§  1.  Law  governing  descent. — The  law  of  the  state^°  in  force  at  the  time  of 
intestate's  death  governs  the  descent  of  his  estate.^^ 


Willeford  v.   Bailey,   132  N.   C.   402. 
Donovan    v.    Hibbler    (Neb.)    92    N.    W. 


4. 
5. 

637. 

6.  Black  V,  Marsh  (Ind.  App.)  67  N.  E. 
201. 

7,  8.     Curtis  v.  Parker,  136  Ala.  217. 

9.  Oliver  V.  Columbia,  M.  &  L.  R.  Co.,  65 
S.  C.  1. 

10.  Fredonia  Nat.  Bank  v.  Tommei  (Mich.) 
92  N.  V\''.  348. 

11.  Joy  V.  Liverpool,  L.  &  G.  Ins.  Co.  (Tex. 
Civ.  App.)  74  S.  W.  822.  A  deposition  which 
had  been  quashed  w^as  not  admissible  at  the 
instance  of  the  party  procuring  its  sup- 
pression to  impeach  the  testimony  of  the 
witness  as  contained  in  a  deposition  subse- 
quently taken,  where  no  foundation  had  been 
laid  by  asking  the  witness  whether  he  had 
not  said  or  done  the  things  specified  in  the 
deposition  and  an  opportunity  offered  him  to 
explain — Id. 

12.  Long  V.  Fields  (Tex.  Civ.  App.)  71  S. 
W.  774. 

13.  Black  V.  Marsh  (Ind.  App.)  67  N.  E. 
201. 

14.  Oliver  v.  Columbia,  M.  &  L.  R.  Co.,  65 
S.  C.  1. 


15.  Texas  &  P.  Ry.  Co.  v.  Reagan  (C.  C. 
A.)   118  Fed.  815. 

16.  Louisville  &  N.  R.  Co.  v.  Steenberger, 
24  Ky.  L.  R.  961,  69  S.  W.  1094.  Under  a 
code  provision  allowing  a  party  to  summon 
the  witness  whose  deposition  has  been  taken 
who  may  be  examined  as  if  summoned  by 
the  party  taking  the  deposition,  the  party 
taking  the  deposition  may  read  the  deposi- 
tion or  examine  the  witness  orally  or  decline 
to  do  either  at  his  election,  but  in  either 
event  the  other  party  may  examine  the  wit- 
ness as  to  all  matters,  whether  brought  out 
in  the  deposition  or  not — Sherrod  v.  Hughes 
(Tenn.)    75  S.  W.  717. 

17.  Profile  &  Flume  Hotels  Co.  v.  Bickford 
(N.  H.)   54  Atl.  699. 

IS.  Under  the  North  Carolina  code,  a  dep- 
osition of  a  w^itness  adjudged  unable  to  talk 
and  physically  unable  to  remain  in  court  is 
admissible  in  evidence  (Code.  N.  C.  1SS3.  § 
1358  [4])— V^Mlleford  v.  Bailey,  132  N.  C.  402. 
"Where  a  deposition  is  taken  under  the  stipu- 
lation that  it  is  to  be  used  only  in  case 
v.'itness  is  unable  to  attend,  the  deposition 
is  properly  admitted  on  the  affidavits  of  the 
witness  shov.'ing  physical  inability,  which  is 


§3 


INHERITABLE  PROPERTY. 


^Z^, 


§  2.  Persons  entitled  to  share  or  inherit. — Persons  claiming,  have  the  burden 
of  proving  heirship. ^^ 

The  common  law  rule  as  to  inheritance  by  aliens  has  been  changed  in  some 
states.  An  adopted  child  is  likewise  enabled  under  some  laws  to  inherit  the  same  as 
if  born  to  decedent  in  lawful  wedlock,^*  provided  it  has  been  legally  adopted/^  and  if 
adopted  after  the  execution  of  a  will  which  made  no  provision  for  it  and  showed  no 
intention  to  disinherit  will  share  as  an  after-born  child  ;^®  and  this  may  sometimes 
result  from  an  adoption  by  parol. ^'^  Legitimacy  by  recognition  may  be  conferred 
by  an  alien  on  his  natural  son  so  as  to  enable  the  son  to  inherit.^* 

An  intentional  omission  to  provide  for  a  child  in  the  will  will  disinherit  him.^^ 

§  3.  Inheritable  and  distributable  property. — The  heir  claiming  a  share  in 
certain  property  has  the  burden  of  proving  it  a  part  of  the  distributable  estate.^** 

To  be  a  part  of  the  distributable  estate,  it  is  essential  that  decedent  have  title 
in  the  property.  ^^ 

Property  ineffectually  devised  will  pass  as  intestate  estate,^^  or  in  case  of  lapsed 
legacies,^^  or  on  failure  to  dispose  of  the  remainder  after  termination  of  the  life 
estate.^*  Where  the  property  by  the  will  is  equitably  converted  into  personalty,  it 
will  be  distributed  as  such."^  * 

A  recovery  for  death  of  decedent  by  wrongful  act  is  not  generally  a  part  of  the 
estate  though  sometimes  sued  for  by  an  administrator  for  the  benefit  of  "heirs"  or 
''children."  Who  can  share  depends  on  the  wording  of  the  statute.  Generally 
decedent's  minor  children  are  entitled  to  share,  but  not  adult  children  whose  family 
relations  with  decedent  had  been  severed,^*  nor  grandchildren.^^  That  the  bene- 
ficiary was  not  named  in  the  complaint  in  the  action  to  recover  the  damages  will 
not  affect  his  right  to  share." 


contradicted  only  by  unsworn  statements  of 
attorneys — Styles  v.  "Village  of  Decatur 
(Mich.)    91  N.  W.   622. 

19.  Black  V.  Webber  (Neb.)    96  N.  W.  606. 

20.  Moen  v.  Moen  (S.  D.)  92  N.  W.  13;  Mc- 
Cune   V.  Essig-   (C.   C.   A.)    122    Fed.   588. 

31.  Evans'  Adm'r  v.  Evans,  24  Ky.  L.  R. 
2421,  74  S.  W.  224. 

22.  Pleading  held  not  such  an  admission 
as  to  shift  the  burden — Sorenson  v.  Sorenson 
(Neb.)  94  N.  W.  540.  Sufficiency  of  evidence 
of  heirship — O'Callaghan  v.  O'Brien,  116  Fed. 
934;  Crumley  v.  Worden,  201  111.  105. 

23.  In  Nebraska  he  may  inherit  lands 
within  corporate  limits  of  a  municipality 
(Comp.  St.  c.  73,  §§  70-73) — Dougherty  v.  Ku- 
bat  (Neb.)   93  N.  W.  317. 

24.  Flannigan  v.  Howard,  200  111.  396,  59 
L.  R.  A.  664.  Compare  Adoption  of  Children, 
ante,  p.  26. 

25.  A  child  taken  into  decedent's  family 
but  not  legally  adopted  is  not  a  legal  heir — 
Merchant  v.  White,  77  App.  Div.   (N.  Y.)   539. 

26.  Flannigan  v.  Howard,  200  111.  396,  59 
L.  R.  A.  664. 

27.  Lynn  v.  Hockaday,  162  Mo.  111.  Suffi- 
ciency of  evidence  to  show  agreement  by  de- 
ceased to  make  child  in  his  custody  his  heir 
— Merchant  v.  White,  77  App.  Div.  (N.  T.) 
539. 

28.  Though  the  recognition  was  made 
prior  to  the  taking  effect  of  Comp.  Laws,  § 
3403 — Moen  v.  Moen  (S.  D.)   92  N.  W.  13. 

29.  Omission  held  not  due  to  inadvertence 
or  mistake — In  re  McMillen's  Estate  (N.  M.) 
71  Pac.  1083.  Will  construed  and  held  to  suf- 
ficiently mention  a  child  to  prevent  such 
child  from  sharing  as  though  decedent  died 
intestate — Smith  v.  Smith  (N.  H.)  54  Atl. 
1014.     Compare  Wills. 


30.  In  re  Ruchizky's  Estate,  205   Pa.   105. 

31.  Goods  sold  by  decedent  but  not  deliv- 
ered until  after  his  death  are  not  part  of  the 
distributable  estate — Warner  v.  Warner,  30 
Ind.  App.  578.  If  a  homestead  settler  has  not 
completed  the  term  of  residence  entitling  him 
to  make  final  proof  before  death  he  has  no 
descendible  Interest  in  the  land.  The  widow 
on  making  final  proof  has  absolute  title — 
McCune  V.  Essig  (C.  C.  A.)  122  Fed.  588. 
Only  lands  to  which  a  patent  had  been  is- 
sued to  the  deceased  Indian  will  pass  to  his 
heirs.  The  land  only  having  been  allotted 
remains  tribal  property — Sloan  v.  United 
States,  118  Fed.  283. 

32.  Shumaker  v.  Grammer,  200  111.  48; 
Dodsworth  v.  Dam.  38  Misc.  (N.  Y.)  684. 


33. 

224. 
34. 
35. 
36. 


In   re   Woolley,   78   App.   D4v.    (N.   Y.) 


Torrey  v.  Peabody,  97  Me.  104. 

Hutchings  v.  Davis,  68  Ohio  St.  160. 

Lewis  V.  Hunlock's  Creek  &  M.  Turn- 
pike Co..  203  Pa.  511. 

A  minor  son  held  not  emancipated  and  an 
adult  crippled  daughter  entitled  to  share — 
Duzan  v.  Myers,  30  Ind.  App.  227. 

The  next  of  kin  have  no  legal  title  to  a 
cause  of  action  for  the  wrongful  or  negligent 
death  of  the  ancestor;  hence  an  order  author- 
izing the  compromise  of  an  action  by  the 
widow  as  administratrix,  to  recover  for  the 
wrongful  death  of  her  husband,  will  not  be 
vacated  merely  because  of  the  birth  of  a 
posthumous  child — In  re  Anderson's  Estate 
82  N.  Y.  S.  763. 

37.  Walker  v.  Vicksburg,  S.  &  P.  Ry.  Co. 
(La.)   34  So.  749. 

38.  Duzan  v.  Myers,  30  Ind.  App.  227; 
Oyster  v.  Burlington  Relief  Dept.  (Neb.)  91 
N.  W.  699,  59  L.  R.  A.  291. 


924 


DETINUB. 


§4 


§  4.  Course  of  descent  and  distribution. — Property  inlierited  from  the  mother 
passes  to  her  relatives  on  the  child's  death  without  la-nrful  descendants,^®  but  a  de- 
ceased child's  share  in  the  mother's  estate  which  passed  to  another  child  was  not 
inherited  by  the  latter  from  the  mother  and  passes  on  his  death  without  lawful 
descendants  to  the  surviving  father.*"  A  child  has  no  present  interest  to  furnish 
a  stock  of  descent  in  the  land  inherited  by  his  step-mother  from  the  deceased 
father.*^  A  half-brother  will,  under  the  laws  of  Indian  Territory,  take  the  land 
of  the  deceased  sister  leaving  surviving  a  maternal  uncle  and  the  deceased  father's 
third  wife.*^  Xieces,  nephews,  uncles,  and  aunts  take  the  entire  personalty  as 
against  cousins.*' 

§  5.  Quantity  of  estate  or  share  acquired. — Nieces,  nephews,  uncles,  and  aunts 
share  equally.**  Property  conveyed  to  an  infant  on  his  death,  intestate  leaving  no 
children  or  their  descendants,  passes  to  his  parents  equally  in  Kentucky.*'  In 
Texas  in  the  distribution  of  the  paternal  moiety,  children  of  deceased  aunts  will 
take  per  stirpes.*® 

§  6.  Hustand  or  wife  as  heirs.*'' — The  widow^s  share  in  the  husband's  estate 
will  be  governed  by  the  statute  in  force  at  the  time  of  the  husband's  death,**  In 
case  of  intestacy  leaving  no  issue  or  parent  the  survivor  takes  the  entire  estate,** 
and  the  property  given  to  the  surviving  widow  by  statute  on  intestacy  of  the  hus- 
band without  issue  vests  in  her  absolute.'"  In  Minnesota,  as  against  a  testamentary 
disposition  of  personalty,  the  surviving  wife  has  no  interest,'^  but  in  Ohio  she  is 
entitled  to  her  share  irrespective  of  any  testamentary  disposition,'^  and  if  the  will 
affects  an  equitable  conversion  of  the  realty  into  personalty,  the  widow  will  take 
her  distributive  share  though  she  has  been  paid  her  dower.'^  In  computing  the 
widow's  share  of  the  personalty  under  the  North  Carolina  statute,  she  should  re- 
ceive one-half  after  deducting  expenses  of  administration  less  the  amount  paid  her 
for  a  year's  support.'*  A  post-nuptial  contract  procured  by  fraud  will  not  afEect 
the  widow's  inheritance."" 

DETINUE.BB 

"NTon  detinet  puts  in  issue  defendant's  possession  of  the  chattels  at  the  time  of 
suit,'^  but  evidence  of  possession  three  days  before  is  prima  facie  sufficient.'®  A 
verdict  need  not  separately  find  the  value  of  articles  of  the  same  class.'®  The  right 
of  defendant  to  a  judgment  for  return  of  the  goods  or  for  their  value  on  nonsuit 
must  be  sought  during  the  term.®" 


See  Death  by  Wrongful  Act. 

39.  Facts  held  to  show  that  the  property 
had  been  conveyed  absolutely  to  the  mother 
and  not  in  trust  by  the  deceased  father — 
Shires  v.  Shires.  76  App.  Div.   (N.  Y.)   621. 

40.  Such  son  did  not  take  directly  from 
the  mother  within  Laws  1896.  c.  547.  §  284 — 
Righter  v.  Ludwig.  39  Misc.   (N.  T.)   416. 

41.  Under  Rev.  St.  1881,  §§  2483,  2486.  2487 
— Bateman  v.  Bennett  (Ind.  App.)  67  N.  E. 
713. 

42.  Finley  v.  Abner  (Ind.  T.)  69  S.  W.  911. 

43.  44.     In  re  Davenport,  172  N.  T.  454. 

45.  Ky.  St.  §  1893.  Though  one  of  the  par- 
ents paid  the  purchase  money — Guier  v. 
Bridges.  24  Ky.  L.  R.  945,  70  S.  "W.  288. 

46.  Rev.  St.  1895.  art.  1695.  does  not  apply 
to  the  distribution  of  the  paternal  moiety — 
Jernigan  v.  Lauderdale  (Tex.  Civ.  App.)  73 
S.  W.  39. 

47.  See  Husband  &  Wife  for  rights  of  sur- 
vivor in  community  property.  See  Home- 
steads for  rights  of  survivor  in  land  exempt- 


ed as  homestead.  See  Estates  of  Decedents 
for  widow's  quarantine  and  allowance.  See 
Curtesy  and  Dower  for  such  interest  of  sur- 
vivor. 

48.  Evans'  Adm'r  v.  Evans,  24  Ky.  L.  R. 
2421.    74   S.   W.    224. 

49.  Burns'  Rev.  St.  §  2651 — Haugh  v.  Smel- 
ser  (Ind.  App.)  66  N.  E.  506;  McCarthy  v.  Mc- 
Carthy, 20  App.  D.  C.  195. 

50.  Code  Civ.  Proc.  §  2713 — Crawford  v. 
Nassoy,  173  N.  Y.  163. 

51.  Laws  1889,  c.  46.  §  70,  amended  Laws 
1893,  c.  116 — In  re  Robinson's  Estate,  88  Minn. 
404. 

.52,  53.  Hutchings  v.  Davis,  68  Ohio  St. 
160. 

54.  Baptist  Female  University  v.  Borden, 
132  N.  C.  476. 

55.  Palmer  v.  Palmer  (Utah)  72  Pac.  3. 

56.  Statutory  substitutes  are  treated  un- 
der Replevin. 

57.  58,  59.     Downs  v.  Bailey,  135  Ala.  329. 
60.     Ex  parte  Bolton,  136  Ala.  147. 


§  1 


DIRECTING  VERDICT  AND  DEMURRER  TO  EVIDENCE. 


925 


DIRECTING  VERDICT  AND  DEMURRER  TO  EVIDENCE. 

§  1.  Directing  verdict.^^ — The  court  should  direct  a  verdict  without  hesi- 
tancy in  a  case  where  the  duty  is  plain  though  it  should  not  do  so  if  in  doubt 
as  to  the  propriety  of  the  action.^^  A  motion  for  a  directed  verdict  is  to  be  regarded 
as  a  demurrer  to  the  evidence,  admitting  not  only  all  the  evidence  proves  but  all 
that  it  tends  to  prove,  and  the  judge  cannot  consider  any  modifying  or  counter- 
vailing evidence,  the  sole  question  being  whether  there  is  or  is  not  evidence 
legally  tending  to  prove  the  fact  affirmed.®^  The  most  favorable  view  which  is 
authorized  by  the  law  of  evidence  must  be  taken  in  favor  of  the  party  against 
whom  verdict  is  directed.®*  His  evidence  with  all  inferences  fairly  deducible 
from  it  must  be  assumed  to  be  true  though  contradicted  in  every  particular.®" 
Evidence  erroneously  admitted  in  his  favor  over  objection  and  exception  may 
be  disregarded,®®  so  also  evidence  at  variance  with  the  pleadings.®^  As  against  one 
defendant,  evidence  preventing  a  direction  may  be  introduced  by  a  co-defendant.®* 

Rules  as  to  quantum  of  evidence.  Generally. — In  some  jurisdictions,  evi- 
dence amounting  to  more  than  a  scintilla  demands  submission  to  the  jury;®'  in 
others,  the  rule  is  that  any  evidence  tending  to  support  the  plaintiff's  cause  of 
action  is  sufficient,^"  or  any  competent  evidence  which  if  believed  would  support 
a  verdict  for  plaintiff,'^^  and  conversely  on  motion  by  plaintiff.''^ 

Elsewhere,  the  question  is  not  whether  or  not  there  is  any  evidence  but 
whether  or  not  there  is  any  substantial  evidence  on  which  a  jury  can  properly 
render  a  verdict  in  favor  of  the  party  who  produced  it.'^'     Such  evidence  may  be 


61.  See,  also,  Dismissal  and  Nonsuit  for 
nonsuit  on  failure  of  proof.  Discharge  of 
jury  and  trial  by  court  where  no  facts  are  in 
dispute  see  articles  Jury;  Trial.  Necessity  to 
request  directed  verdict  in  order  that  errors 
may  be  reviewed  is  treated  in  article  Saving 
Questions  for  Review. 

62.  U.  P.  Steam  Baking  Co.  v.  Omaha  St. 
Ry.   Co.    (Neb.)    94  N.   W.   533. 

63.  Cohen  v.  Chicago  &  N.  W.  Ry.  Co., 
104  111.  App.  314;  Chadbourne  v.  Illinois 
Cent.  R.  Co.,  104  111.  App.  333;  Wetherell  v. 
Chicago  City  R.  Co.,  104  111.  App.  357;  Hart- 
ung  V.  North  Chicago  St.  R.  Co.,  102  111. 
App.  470.  Plaintiff's  evidence  alone  should 
be  considered  and  all  questions  on  which 
there  was  a  substantial  conflict  of  testi- 
mony dismissed  from  consideration,  since 
on  such  questions  defendants  are  entitled 
to  have  judgment  of  a  jury — Chesley  v. 
Rocheford    (Neb.)    96   N.    W.    241. 

64.  From  that  evidence  and  inferences 
justified  to  be  drawn  therefrom  the  judge 
must  say  whether  there  is  any  evidence 
which  would  reasonably  justify  a  finding 
for  that  party — Milwaukee  Mech.  Ins.  Co.  v. 
Rhea  (C.  C.  A.)  123  Fed.  9.  Verdict  should 
not  be  directed  unless  the  facts  testified  to 
can  be  said  to  admit  of  no  rational  infer- 
ence but  that  of  absence  of  negligence  on 
the  part  of  defendant  railroad  company,  or 
the  presence  of  negligence  on  the  part  of 
plaintiff's  decedent  or  the  plaintiff  has  failed 
to  furnish  a  scintilla  of  evidence  on  all  es- 
sential points  to  sustain  his  claim — Ham  v, 
Lake  Shore  &  M.  S.  Ry.  Co.,  23  Ohio  Circ. 
R  496;  Cogan  v.  Cass  Ave.  &  P.  G.  Ry.  Co. 
(Mo.    App.)    73    S.    W.    738. 

65.  Newbold  v.  Hayward.   96  Md.    247. 

66.  Townsend  v.  Greenwich  Ins.  Co.,  8fi 
App'  Div  (N.  Y.)  323;  Mallory  v.  Fitzger- 
ald's Estate   (Neb.)   95  N.  W.  601. 


67.  Winchester  v.  Joslyn  (Colo.)  72  Pac. 
1079. 

68.  Bopp  V.  New  York  Elec.  Vehicle 
Transp.   Co.,   78  App.  Div.   (N.  Y.)    337. 

60.  Plaintiff's  case — Coble  v.  Hufllnes, 
132    N.    C.    399. 

70.  Gladstone  Baptist  Church  v.  Scott 
(Ky.)  74  S.  W.  1075;  Chesapeake  &  N.  R. 
Co.  V.  Ogles,  24  Ky.  L.  R.  2160,  73  S.  W. 
751;  Chicago  &  E.  I.  R.  Co.  v.  Huff,  104  111. 
App.  594;  Illinois  Cent.  R.  Co.  v.  Crady,  24 
Ky.  L.  R.  643,  69  S.  W.  706;  Heman  v.  Larkin 
(Mo.  App.)  70  S.  W.  907;  Nelson  v.  Fehd. 
203  111.  120.  In  conversion  to  recover  the 
value  of  grain  unlawfully  cut,  a  verdict 
should  not  be  directed  for  defendant  if 
there  is  evidence  as  to  the  value  of  the 
standing  grain,  though  it  is  not  very  specif- 
ic— Mueller  v.  Olsen  (Minn.)  97  N.  W.  115. 
Evidence  "fairly  tending  to  prove" — Hart- 
rich  V.  Hawes,  202  111.  334.  Circumstantial 
evidence — Caris  v.  Nimmons,  92  Mo.  App. 
66.  In  an  action  for  malicious  prosecution 
where  the  evidence  fairly  tended  to  show 
want  of  probable  cause  for  the  arrest  and 
malice,  the  cause  should  not  be  taken  from 
the  jury — Lasher  v.  Littell,  202  111.  551. 
Verdict  should  not  be  directed  for  defend- 
ant in  an  action  for  false  imprisonment 
where  there  is  evidence  tending  to  show 
defendant's  bad  faith — Burbanks  v.  Lepov- 
sky  (Mich.)  96  N.  W.  456.  A  reasonable  in- 
ference of  actionable  negligence  will  pre- 
vent a  directed  verdict  for  defendant — 
Board  v.  Chesapeake  &  O.  R.  Co.,  24  Ky.  L. 
R.    1079,   70   S.    W.    625. 

71.  Allen   v.   Cerny   (Neb.)    94  N.  W.  151. 

72.  An  instruction  for  plaintiff  may  be 
refused  where  defendant  has  introduced  evi- 
dence tending  to  support  a  counterclaim — 
NTew  Orleans  Coffee  Co.  v.  Cady  (Neb.)  95 
N.  W.   1017. 


926 


DIRECTING  VERDICT  AND  DEMURRER  TO  EVIDENCE. 


§   1 


direct  or  inferential,'*  but  slight  evidence  which  is  suspicions  and  uncertain  is 

not  sufficient.'^ 

Absence  of  evidence.— An  instruction  should  be  given  for  defendant  where 
there  is  no  testimony  to  support  plaintifi's  contention  on  a  material  and  essential 
point  ;^«  so  verdict  should  be  directed  on  such  counts  in  the  declaration  as  are 
wholly  unsupported,"  and  where  there  is  no  evidence  whatever  an  issue  may  be 
withdrawn."  A  verdict  is  properly  directed  for  plaintiff  where  defendant  having 
assumed  the  burden  of  proof  offers  no  evidence  as  to  material  facts.'^" 

Necessity  that  verdict  if  given  should  be  set  aside. — Wliere  the  evidence 
vnth  all  the  inferences  which  the  jury  could  justifiably  have  drawn  from  it  is 
insufficient  to  support  a  verdict  for  one  party  so  that  it  would  be  the  duty  of 
the  court  to  set  aside  such  verdict  if  it  had  been  rendered,  the  court  may  direct  a 
verdict  for  the  opposite  party.*"  To  justify  a  court  in  directing  a  verdict  or 
changing  the  answer  of  the  jury  from  affirmative  to  negative,  the  finding  of  the  jury 
must  be  contrary  to  the  undisputed  credible  evidence.'^  The  evidence  must  de- 
mand a  finding  in  accordance  with  the  verdict.'^ 

Undisputed  or  conclusive  evidence. — Though  a  question  of  fact  is  involved,  a 
verdict  mav  be  directed  if  the  evidence  is  clear  and  uncontradicted,®'  such  that  all 
reasonable  'men  in  the  exercise  of  an  unprejudiced  judgment  must  reach  the  same 
conclusion,**  but  not  when  the  court  cannot  say  that  the  jury,  without  actiag 


73.  Cole  V.  German  Sav.  &  Loan  Soc.  (C. 
C.  A.)    124  Fed.  113. 

74.  Rosenbaum  v.  Gilliam  (Mo.  App.)  74 
S.  W.   507. 

75.  Chicago.  R.  I.  &  P.  Ry.  Co.  v.  Sporer 
(Neb.)    94   N.  W.    991. 

76.  Cogan  v.  Cass  Ave.  &  F.  G.  Ry.  Co. 
(Mo.  App.)  73  S.  W.  738.  If  at  the  close  of 
the  testimony  in  a  trial  for  personal  injuries 
there  is  no  substantial  evidence  on  which  a 
jury  can  properly  find  that  the  negligence 
charged  was  the  proximate  cause  of  the 
hurt  sustained,  it  is  the  duty  of  the  court, 
as  it  is  in  a  like  condition  of  the  evidence 
in  the  trial  of  every  other  issue  of  fact,  to 
instruct  the  jury  to  return  a  verdict  for  de- 
fendant— Cole  V.  German  Sav.  &  Loan  Soc. 
(C.  C.  A.)  124  Fed.  113.  "Where  no  competent 
admissible  evidence  of  negligence  is  pro- 
duced— Thomas  v.  Star  &  C.  Milling  Co.,  104 
111.   App.    110. 

77.  Chicago  &  A.  R.  Co.  v.  O'Leary,  102 
111.   App.    665. 

78.  Tague  V.  John  Caplice  Co.  (Mont.) 
72   Pac.    297. 

79.  Boughn  V.  Security  State  Bank  (Neb.) 
95  N.  W.  6S0.  In  a  suit  on  a  contract,  where 
no  evidence  is  introduced  in  support  of  the 
only  defense  properly  pleaded,  the  court 
should  construe  the  contract,  determine  the 
measure  of  damages  and  direct  the  jury  to 
return  a  verdict  accordingly — School  Dist. 
v.  McDonald   (Neb.)   94  N.  W.   829. 

SO.  Day  v.  Boston  &  M.  R.  R.,  97  Me. 
528;  Webster  Mfg.  Co.  v.  Goodrich.  104  111. 
App.  76;  Sherwood  v.  Rieck,  104  111.  App. 
368:  Palmer  v.  Fidelity  Mut.  Fire  Ins.  Co. 
(Neb.)  92  N.  W.  575;  Chaffee  v.  Park  Falls 
Lumber  Co.  (Neb.)  96  N.  "W.  495;  Lynch  v. 
Englehardt.  etc.,  Merc.  Co.  fNeb.)  96  N.  W. 
524;  Marquardt  v.  Ball  Engine  Co.  (C.  C. 
A.)  122  Fed.  374;  Heisch  v.  Bell  (N.  M.)  70 
Pac.  572:  "Wall  v.  Brewer,  115  Ga.  1021. 

Note New    York    has    departed    from    the 

rule  that  the  court  may  direct  a  verdict  at 
the  close  of  all  the  evidence  where  It  would 
be  compelled  to  set  aside  a  verdict  in  favor 


of  the  opposing  party,  and  holds  that  where 
an  actual  issue  of  fact  is  presented  the  case 
must  go  to  the  jury — McDonald  v.  Metro- 
politan St.   Ry.  Co.,  167  N.  Y.  66. 

81.  Blohowak  V.  Grochoski  ("Wis.)  96  N. 
W.    551. 

82.  Verdict  for  a  particular  amount  should 
not  be  directed  unless  demanded  by  the  evi- 
ience — Pritchett  v.  Moore,  116  Ga.  757. 

83.  Residence  of  a  corporation  was  in- 
volved— Nester  v.  Baraga  Tp.  (Mich.)  95  N. 
W.  722;  "Wagoner  v.  Landon  (Neb.)  95  N.  "W. 
496.  Issue  as  to  w^hether  defendant  was 
plaintiff's  agent — Midville,  S.  &  R.  B.  R.  Co. 
V.  Bruhl  (Ga.)  43  S.  E.  717;  Bryson  v.  "Wal- 
lace (Ind.  T.)  69  S.  "V\^  814;  McCleneghan  v. 
Xorton  (Neb.)  93  N.  "W.  695.  Instruction  for 
attorney's  fees — New  York  Life  Ins.  Co.  v. 
English  (Tex.  Civ.  App.)  70  S.  "W.  440. 
'>Vhere    value    of    goods    sought    in    trover   is 

indisputed,  verdict  in  such  amount  may  be 
directed — Rogers  v.  Dutton.  1S2  Mass.  187. 
Action  on  notes  for  farm  machinery — "Win- 
lerringer  v.  Warder   (Neb.)    95  N.  "W.   619. 

84.  Chicago  &  N.  'W.  Ry.  Co.  v.  De  Clow 
iC.  C.  A.)  124  Fed.  142.  Defense  of  usury — 
McCall    v.    Herring    (Ga.)    45    S.    E.    442;    City 

>f  Chanute  v.  Higgins.  65  Kan.  680,  70  Pac. 
"38;  Merchant  v.  South  Chicago  City  Ry.  Co.. 
104  111.  App.  122;  Linton  v.  Baker  (Neb.)  96 
N.  "W.  251.  Issue  as  to  whether  certain  cat- 
tle were  covered  by  a  chattel  mortgage — 
.\dams  v.  South  Omaha  Nat.  Bank  (C.  C.  A.) 
123  Fed.  641.  Where  all  reasonable  minds 
would  be  compelled  to  conclude  that  plain- 
tiff encountered  danger  with  concurrent  in- 
jury under  circumstances  and  surroundings 
showing  that  in  so  doing  he  acted  rashly, 
recklessly  or  unreasonably — Illinois  Cent. 
Pv.  Co.  v.  Finfrock.  103  111.  App.  232.  "Ver- 
dict may  be  directed  for  defendant  in  an 
iction  for  injuries  at  a  railroad  crossing, 
where  the  undisputed  evidence  when  con- 
strued most  favorably  to  plaintiff  is  Insuffi- 
cient to  warrant  the  inference  of  negligence 
— Hajsek  v.  Chicago,  B.  &  Q.  R.  Co.  (Neb.) 
97   N  W.    327. 


QUANTUM  OF  EVIDENCE. 


927 


unreasonably,  might  come  to  a  different  conclusion  from  the  evidence/^  as  wliere 
two  equally  plausible  conclusions  may  be  deduced  from  the  circumstances/'^  or 
where  a  reasonable  inference  against  the  moving  party  exists.®^  It  is  error  to 
direct  a  verdict  where  the  evidence  would  authorize  a  finding  for  either  party.^* 

On  conflicting  evidence  as  to  a  material  issue  of  fact,  a  verdict  cannot  be  di- 
rected.®® Immaterial  questions  of  fact  need  not  be  submitted.®"  The  rule  that 
defendant  must  admit  all  of  the  facts  essential  to  plaintiff's  case,  or  they  must 
be  f^stablished  by  documentary  evidence  which  he  is  estopped  to  deny,  is  not 
applicable  if  there  is  no  evidence  tending  to  prove  the  defenses  which  he  pleads 
and  the  facts  on  which  plaintiff's  cause  of  action  is  based  are  undisputed.®^ 

Evidence  of  contributory  negligence  should  not  be  withdrawn  by  direction  of 
a  verdict.®^ 

Preponderance  of  the  evidence  will  not  warrant  a  direction  if  an  issue  of  fact  is 
presented,®^  which  is  supported  by  any  credible  evidence.®* 

Credibility  of  witnesses  is  a  question  for  the  Jury,®^  though  they  are  uncontra- 
dicted,®* or  though  they  have  made  contradictory  statements  out  of  court  ;®^  but 
where  the  undisputed  circumstances  show  that  a  witness'  version  cannot  be  by  any 
possibility  true,  or  if  it  is  inherently  impossible,  the  rule  demanding  the  submis- 
sion of  the  credibility  of  the  witness  to  the  jury  does  not  apply.®^  A  sufficient  con- 
tradiction of  the  witness  may  arise  from  the  nature  of  the  facts  to  which  he  tes- 
tifies, though  the  witness  is  not  directly  contradicted.®®  The  question  of  intentional 
false  testimony  and  its  effect  on  other  portions  of  the  evidence  is  for  the  jurv'.^ 
Where  if  experts  whose  evidence  was  properly  received  are  believed  by  the  jurv,  plain- 


85.  standard  Life  &  Ace.  Ins.  Co.  v.  Sale 
(C.  C.  A.)  121  Fed.  664;  Howard  v.  Indian- 
apolis St.  Ry.  Co.,  29  Ind.  App.  514.  Plain- 
tiff's neglig-ence — Palmer  v.  Kinlock  Tel.  Co., 
91   Mo.   App.   106. 

S6.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Wood 
(Kan.)  72  Pac.  215.  Action  to  establish  a 
will — Hagan  v.  Sone,  174  N.  Y.  317;  Otstot 
V.  Indiana,  I.  &  I.  R.  Co.,  103  111.  App.  136: 
"Whalen  v.  Utica  Hydraulic  Cement  Co.,  103 
111.  App.  149.  Contract  for  shipment  of  coal 
— Hocking  v.  Hamilton  (C.  C.  A.)  122  Fed. 
417. 

87.  Peters  v.  Southern  Ry.  Co.,  135  Ala. 
533. 

88.  Cunningham  v.  Central  of  Ga.  Ry.  Co. 
(Ga.)    45   S.    B.    246. 

80.  Moore  v.  Xashville,  C.  &  St.  L.  Ry. 
(A\p.)  34  So.  617;  Morrill  v.  McNeill  CNeb.) 
91  N.  W.  602;  Matheson  v.  City  of  Tennille. 
115  Ga.  999;  Central  Ry.  Co.  v.  Mehlenbeck. 
103  111.  App.  17;  Peters  v.  Southern  Ry.  Co.. 
135  Ala.  533;  Pope  v.  '^''hitcomb  CXeb.)  93 
N.  V/.  947.  Action  for  logs — Griffin  v.  Brock 
CMiss.)  33  So.  968.  Action  on  note  given  for 
legal  services — Mc'Whorter  v.  Bluthenthal,  136 
Ala.  568.  Error  to  direct  a  verdict  in  a  proceed- 
ing to  set  aside  a  tax  sale  on  account  of  an 
excessive  levy  where  there  is  a  wide  variance 
betv.'een  the  evidence  of  plaintiff  and  de- 
fendant as  to  the  value  of  the  property 
levied  on — Stark  v.  Cummings  (Ga.)  45  S. 
E.  722.  On  failure  of  an  affirmative  defense, 
there  being  positive  evidence  to  the  con- 
trary by  plaintiffs,  verdict  for  defendant 
should  not  be  directed — Webb  v.  Hicks  (Ga.) 
43  S.  E.  738.  Evidence  that  a  person  does 
not  remember  having  authorized  a  message 
Is  not  so  contradictory  of  evidence  that  it 
■was    authorized    as    to    require   a   submission 


to  the  jury — Norman   v.   Western  Union   Tel. 
Co.,  31  Wash.  577.   72  Pac.  474. 

90.  Stokes  v.   Foote,  172  N.  T.   327. 

91.  Mosby  V.  McKee,  etc..  Commission 
Co.,   91  Mo.  App.   500. 

92.  See  generally  Negligence  and  articles 
dealing  with  particular  phases  thereof  such 
as  Carriers,  Master  and  Servant. 

Chicago,  B.  &  Q.  P^  Co.  v.  Lilley  (Neb.) 
93   N.   W.    1012. 

93.  Philips  v.  Philips,  77  App.  Div.  (N. 
T.)  113;  Daggett  v.  Webb  (Tex.  Civ.  App. 
70  S.  W.  457;  Rosenkranz  v.  Saberski,  40 
Misc.   (N.  Y.)    650. 

94.  Morton  v.  Smiley  (Wis.)  96  N.  W. 
534. 

95.  Quincy  Gas  &  Elec.  Co.  v.  Bauman. 
104  111.  App.  600.  Sufficiency  of  resolution 
authorizing  municipal  contracts  to  take  the 
place  of  ordinances  for  such  purpose  re- 
quired by  charter,  must  be  submitted  to  the 
jury  where  established  by  parol  evidence — 
Dalton  v.  City  of  Poplar  Bluff,  173  Mo.  39. 
In  replevin  where  plaintiff  alone  testifies  to 
value  of  property,  the  jury  should  not  be 
instructed  that  in  finding  for  plaintiff,  they 
should  assess  the  value  at  such  sum — Dy- 
sart  V.  Terrell  (Tex.  Civ.  App.)  70  S.  W 
986. 

96.  City  of  Poplar  Bluff  v.  Hill,  92  Mo. 
App.   17;   Hugumin  v.  Hinds.  97  :Mo.  App.   346. 

97.  McCoy  v.  Munro,  76  App.  Div.  (N.  Y  ) 
435. 

98.  Blumenthal  v.  Boston  &  :nl  R.  R.,  97 
Me.    255. 

99.  Van  Gaasbeek  v.  Staples,  85  App  Div. 
(N.   Y.)    271. 

1.  Bankers'  Union  v.  Schlverln  (Neb.)  92 
N.  W.   158. 


928  DIRECTING  VERDICT  AND  DEMURRER  TO  EVIDENCE.  §    1 

tiff  is  entitled  to  substantial  damages  it  is  error  to  direct  a  verdict  for  nominal 
damages.^ 

Variance. — A  directed  verdict  on  the  ground  that  a  theory  presented  by  the 
pleadings  is  not  supported  by  the  evidence  may  be  denied  where  in  his  evidence 
plaintiff  expressly  repudiates  such  theory.^ 

Insufficiency  in  law. — The  court  should  so  instruct  the  jury  when  the  evi- 
dence offered  is  not  sufficient  in  law  to  make  out  the  case  of  the  party  who  has 
offered  it.* 

The  federal  courts  hold  that  where  plaintiff  is  not  entitled  to  recover  and 
does  not  ask  leave  to  take  a  voluntary  nonsuit  and  there  is  no  motion  by  defendant 
for  a  compulsory  nonsuit,  verdict  is  properly  directed  for  defendant/  but  in  other 
courts  it  has  been  held  that  though  plaintiff  has  failed  to  prove  his  case  and 
should  be  nonsuited,  defendant  is  not  entitled  to  have  a  verdict  directed  in  his 
favor  which  will  be  a  final  bar  to  plaintiff's  right  of  action.^ 

Right  as  dependent  on  the  state  of  the  pleadings. — A  verdict  cannot  be  directed 
based  on  pleadings  bad  in  substance.*^  "Where  the  answer  contains  no  substantial 
defense,  verdict  may  be  properly  directed  for  plaintiff.*  A  verdict  should  not  be 
directed  in  favor  of  a  surety  entitled  to  a  partial  release  where  its  effect  will  be 
to  release  him  entirely.' 

Time  for  motion  or  direction. — A  verdict  may  be  directed  at  any  time  before 
the  jury's  verdict  is  announced  and  recorded  in  open  court."  A  prayer  for  an  in- 
struction that  evidence  is  insufficient  to  entitle  plaintiff  to  recover  may  be  granted 
at  the  close  of  plaintiff's  evidence.^^  In  Florida,  a  directed  verdict  after  all  the  evi- 
dence is  in  cannot  be  requested  before  the  argument.^^ 

Duty  of  court  to  first  announce  rulings  on  evidence. — If  objections  to  evi- 
dence and  motions  to  strike  the  same  are  reserved,  the  court  cannot  direct  a  verdict 
without  special  ruling  on  the  objections  and  motion  made.^^ 

Effect  of  motion  on  moving  party. — The  New  York  rule  that  after  a  motion 
to  direct  a  verdict  in  his  favor  a  party  is  not  entitled  to  reserve  exceptions  to  a 
refusal  to  send  the  case  to  the  jury  at  his  request  after  the  motion  to  direct  a 
verdict  was  denied  is  not  followed  in  the  circuit  court  of  appeals  of  the  second 
circuit.^* 

Motion  hy  both  parties. — Where  both  parties  move  for  a  directed  verdict,  it  is 
a  virtual  submission  of  the  issue  to  the  judge."  The  court  may  determine  the 
case  on  its  merits,^^  and  its  decision  on  the  facts  is  equivalent  in  effect  to  a  verdict.^'^ 


2.  Bjerrum    v.    Springfield    Breweries    Co.. 
83  App.  Div.    (N.  Y.)   172. 

3.  Alleg-ed    joint    contract    in    declaration 
against  connecting  carriers — Texas  &  P.  Ry 


on  whose  property  a  fl.  fa.  had  been  levied 
reciting  that  the  plaintiff  in  fl.  fa.  had  re- 
leased property  of  the  principal  defendant 
for  the  sum  of  $90.00  which  was  credited  on 


Co.  V.  Hall   (Tex.   Civ.  App.)   72  S.  W.  1052.         the  fl.  fa.  but  which  property  was  averred  to 


4.  Hill  V.  Pitt  (Neb.)  96  N.  V\'.  339.  Un 
disputed  evidence  of  probable  cause  war- 
rants a  direction  for  defendant  in  malicious 
prosecution — Bechel  v.  Pacific  Exp.  Co. 
(Neb.)  91  N.  "^V.  853.  Though  some  of  the 
facts  bearing  on  that  issue  may  be  in  dis- 
pute—Figg  v.  Hanger   (Neb.)   96  N.  W.  658. 

."».  Gibboney  v.  Board  of  Chosen  Free- 
holders   (C.   C.   A.)    122   Fed.    46. 

6.  Rosenkranz  v.  Saberski,  40  Misc.  (N.  T.) 
650.  Plaintiff  should  be  reserved  the  right 
to  institute  a  subsequent  action  for  the  same 
cause  (Civ.  Code.  1895.  §  5347)— Hines  v.  Mc- 
Lellan    (Ga.)   45  S.  E.   279. 

7.  Kellv   v.   Strouse.   116    Ga.   872. 

8.  Sloan  Commission  Co.  v.  Pry  (Neb.) 
95  H.  "W.   862. 

9.  Trial  of  an  illegality  filed  by  a  surety 


be    worth    $200 — Ward    v.    McLamb    (Ga.)    45 
S.   E.    688. 

10.  Prior  to  such  time  the  judge  may  re- 
call all  instructions  and  direct  a  verdict — 
Garrett  v.  Farwell,   102  III.  App.   31. 

11.  Proceedings  under  a  caveat  to  a  will 
— Schwanteck   v.    Berner,    96   Md.    138. 

12.  Rev.  St.  §  1088 — Florida  Cent.  &  P. 
R.   Co.   V.   Seymour   (Fla.)    33   So.   424. 

13.  McDermott  v.  Mahoney  (Iowa)  93  N. 
W.   499. 

14.  One  Pearl  Chain  v.  United  States  (C. 
C.  A.)    123  Fed.   371. 

15.  Cullinan  v.  Fidelity  &  Casualty  Co.. 
82  N.  T.  Supp.   695. 

16.  Snow  V.  Modern  Woodmen,  24  Ohio 
Circ.    R.    142. 


DEMURRER  TO  EVIDENCE. 


929 


Each  party  is  concluded  as  to  the  findings  of  fact.^^  Though  the  only  evidence  on 
an  issue  is  given  by  an  interested  witness,  such  issue  need  not  be  submitted  unless 
requested  where  both  parties  have  moved  for  a  directed  verdict."  The  New  York 
rule  that  a  motion  by  both  parties  for  direction  of  a  verdict  is  a  submission  of 
questions  of  fact  to  the  court  is  not  followed  in  Wisconsin.^" 

On  appeal,  every  reasonable  intendment  of  the  facts  will  be  indulged  in  favor 
of  the  party  in  whose  behalf  the  verdict  is  directed.^^ 

Waiver  of  motion. — A  motion  at  the  close  of  plaintiff's  case  is  waived  by  in- 
troduction of  evidence  by  defendant  on  his  own  behalf,^^  and  must  be  renewed 
at  the  close  of  all  the  evidence.^^  Where  after  the  close  of  evidence  against  one  de- 
fendant he  moves  for  a  directed  verdict  in  his  favor,  there  being  no  evidence  against 
him,  but  the  motion  is  denied  and  he  remains  in  the  case,  and  his  co-defendant  pre- 
sents evidence  which  tends  to  show  his  liability,  the  case  against  him  may  properly 
be  submitted  to  the  jury.^* 

§  2.  Demurrers  to  evidence ^^ — A  demurrer  to  the  evidence  admits  the  truth 
of  plaintiff's  testimony  together  with  reasonable  inferences  to  be  drawn  therefrom 
most  favorable  to  plaintiff.^^  It  is  to  be  regarded  as  a  waiver  by  demurrant  of  all 
evidence  introduced  by  it  that  is  contradictory  to  that  for  the  demurree.^^  The 
court  cannot  weigh  contrary  inferences.  ^^  If  the  evidence  supports  the  issue  made  by 
the  pleadings,  a  demurrer  to  the  evidence  should  be  overruled,^*  or  if  there  is  any 
evidence  from  which  the  essential  facts  may  be  inferred.^"  A  demurrer  to  plaintiff's 
evidence  may  be  sustained  when,  considered  with  the  whole  evidence,  reasonable 
persons  could  not  differ  as  to  the  failure  to  establish  a  prima  facie  case,*^  or 
where  it  totally  fails  to  support  the  pleadings.^^  A  joinder  in  demurrer  may  be 
compelled  unless  the  court  doubts  the  facts  to  be  reasonably  inferred  though  the 
evidence  is  plainly  against  the  demurrant.  A  mere  conflict  in  the  evidence  does 
not  warrant  a  refusal  since  it  may  be  determined  by  rejecting  the  parol  evidence 
of  the  demurrant.  The  existence  of  the  right  is  to  be  determined  in  the  judicial 
discretion  of  the  trial  court. ^* 

When  demurrer  should  he  made. — The  production  of  other  portions  of  the 
record  on  cross-examination  of  a  witness  as  to  a  record  testified  to  by  him,  and 
the  reading  of  such  portions  of  the  record  to  the  jury,  does  not  amount  to  the 
introduction  of  original  evidence  forfeiting  the  right  to  demurrer.^* 


17.  Leg-gat  v.  Leggat,  79  App.  Div.  (N. 
Y.)    141. 

18.  Bradley  Timber  Co.  v.  White  (C.  C. 
A.)    121   Fed.   779. 

l!>.  W.  P.  Fuller  &  Co.  v.  Schrenk,  171  N. 
T.   671. 

SSO.  National  Cash  Register  Co.  v.  Bonne- 
ville   (Wis.)    96   N.   W.    558. 

21.  Birnstein  v.  Stuyvesant  Ins.  Co.,  39 
Misc.  (N.  Y.)  808;  Appel  v.  Aetna  Life  Ins. 
Co..   86  App.  Div.    (N.   Y.)    83. 

23.  Western  Md.  R.  Co.  v.  State,  95  Md. 
637. 

23.  Anthony  Ittner  Brick  Co.  v.  Ashljy, 
198   111.    562. 

34.  Bopp  V.  New  York  Elec.  "Vehicle 
Transp.   Co.,   78   App.   Div.    (N.   Y.)    337. 

25.  See  definition  and  historical  sketch  in 
Cyc.  Law  Diet.   "Demurrer   (In  Practice)." 

26.  In  seduction  it  presents  the  question 
whether  plaintiff's  testimony  is  sufficient  on 
which  to  base  a  finding  of  such  loss  of  serv- 
ices as  is  necessary  to  maintain  the  action — 
Snider  v.  Newell,  132  N.  C.  614.  Evidence 
held  sufficient  to  authorize  a  verdict  for 
plaintiff    injured    at    a    railroad    crossing — 

Curr.  Law — 59. 


Vance  v.  Ravenswood,  S.  &  G.  Ry.  Co.  (W. 
Va.)  44  S.  E.  461;  Creighton  v.  Modern  Wood- 
men,  90   Mo.  App.   378. 

27.  Glasscock  v.  Swofford  Bros.  Dry 
Goods  Co.  (Mo.  App.)  74  S.  W.  1039;  Chinn 
v.  Chicago  &  A.  Ry.  Co.  (Mo.  App.)  75  S. 
W.  375;  Geiser  Mfg.  Co.  v.  Lee  (Ind.  App.) 
66  N.    E.   701. 

28.  Morrow  v.  Pullman  Palace  Car  Co.,  98 
Mo.   App.   351. 

29.  Kelly   V.    Strouse,    116   Ga.    872. 

30.  31.  Morrow  v.  Pullman  Palace  Car  Co., 
98  Mo.   App.   351. 

33.  Sustained  on  failure  of  evidence  to 
discharge  burden  of  proving  alleged  waiver 
of  forfeiture  in  action  on  insurance  policy- — 
Cottom  v.  National  Fire  Ins.  Co.,  65  Kan. 
511,  70  Pac.  357.  Sustained  where  evidence 
shows  right  of  action  on  contract  without 
evidence  of  tort,  the  sole  ground  of  action 
alleged — Ellis  v.  Flaherty,  65  Kan.  621,  70 
Pac.  586.  Not  sustained  on  failure  of  evi- 
dence as  to  injury  to  land,  where  Injury  to 
land  and  crops  was  alleged — Coleman  v. 
Bennett   (Tenn.)    69   S.   W.   734. 

33.  University  of  Virginia  v.  Snyder  (Va.> 
42  S.  E.   337. 


930 


DISCOVERY  AND  INSPECTION. 


§   1 


Proceedings  after  demurrer. — Defendant  after  a  decision  against  him  on 
demurrer  to  plaintiff's  evidence  may  introduce  evidence  in  his  own  behalf.^^ 

DISCOVERY  AND  INSPECTION". 

§  1.     Discovery  in   Equity.  [Books,    and    Papers    Liable.      C.      Procedure; 

§  3.*     Production        and        Examination    .  of  j-'se  at  Trial.     D.   Order,  and  Time  or  Manner 

Boolis,  etc.;  Examination  of  Party A.   Right  of    Examination.       E.   Physical     Examination 

to  Examination   or  Inspection.     B.     Persons.j  lo  Prepare  for  Trial  or  to  Prepare  Evidence. 

Discovery  is  a  remedy  for  the  disclosure  of  facts  or  the  production  of  instruments 
in  the  possession  or  power  of  the  adverse  party  which  are  necessary  to  maintain 
the  right  or  title  of  the  party  asking  it.  It  was  originally  a  chancery  proceeding 
ancillary  to  another  suit  but  is  sometimes  asserted  as  a  common-law  right.  Its 
remedial  features  are  preserved  in  code  remedies  for  examination  of  parties  or« 
inspection  of  documents.^® 

§  1.  Discovery  in  equity. — The  right  to  have  discovery  must  pertain  to  ma- 
terial facts  relating  to  complainant's  own  case  and  cannot  be  extended  to  the 
manner  in  which,  or  the  evidence  by  which,  the  adversar}^s  case  is  to  be  estab- 
lished." it  is  refused  when  unnecessary  to  make  a  prima  facie  case,^*  or  when  the 
complainant  fails  to  show  a  right  to  be  protected.^*  A  suit  in  equity  cannot  be 
brought  in  the  federal  courts  to  discover  evidence  to  enforce  a  purely  legal  demand, 
provable  by  process  at  law.***  In  an  equitable  suit  by  judgment  creditors  of  a 
corporation  to  obtain  discovery  of  names  of  stockholders  to  sue  them,  it  cannot  be 
urged  that  a  statute  providing  for  production  of  documents  in  possession  of  an 
adverse  party  gave  an  adequate  remedy,  since  that  statute  applies  only  when  a  suit 
has  already  been  commenced.*^  In  a  creditors  suit  against  the  defendant  and  his 
alleged  debtor,  if  the  debt  is  purely  legal  and  is  denied  by  the  alleged  debtor,  the 
question  of  its  existence  cannot  be  tried,  but  complainant  may  obtain  a  discovery 
from  such  alleged  debtor  as  to  his  indebtedness,  and  the  right  to  an  equitable  lien 
by  his  joinder,  with  a  pro\asion  in  the  decree  that  the  lien  may  become  effective*, 
when  the  debt  is  established  at  law,  and  may  also  have  a  receiver  appointed  wifh 
authority  to  bring  such  an  action.*^     If  the  bill  waives  a  sworn  answer  discovery 


34.  Cooley  v.  Galyon,  109  Tenn.  1.  60  L. 
R.    A.    139. 

33.  Riley  v.  Missouri  Pac.  Ry.  Co.  (Neb.) 
95  N.  W.  20. 

36.  Cyc.  Law  Diet.  "Discovery."  As  a  pre- 
liminary to  the  introduction  of  secondary 
evidence  of  documents  a  notice  to  produce 
them  may  be  given.  See  Evidence  (Docu- 
mentary Evidence).  Compare  also  Trial 
(Reception   and   Exclusion   of  Evidence). 

Examination  of  a  party  by  way  of  taking 
his  deposition  for  use  as  evidence  is  treated 
in  the  article  Depositions.  Subpoena  duces 
tecum    see    Evidence.    Witnesses. 

37.  Denied  to  cross  complainant — Sunset 
Telephone  &  Telegraph  Co.  v.  City  of  Eu- 
reka,   122   Fed.    960. 

38.  Where,  in  a  suit  to  enjoin  infringe- 
ment of  a  patent,  the  validity  and  infringe- 
ment are  not  disputed,  and  claimant  claims 
as  an  assignee  and  proves  his  assignment, 
his  case  is  prima  facie  complete  without 
proving  defendant's  knowledge  of  the  as- 
signment— Arnold  Monophase  Elec.  Co.  v. 
Wagner  Elec.  Mfg.  Co.,  118   Fed.  653. 

3T>.  The  creditor  of  an  insolvent  railroad 
company  cannot  have  a  Jiscovery  of  prices 
paid  lor  claims  against  the  company  by  the 


president,  in  a  purchase  for  a  third  person 

who  had  full  right  to  buy  them,  unless  he 
shows  a  conspiracy  to  defraud  stockholders 
and  creditors,  especially  where  a  master  has 
previously  allowed  such  claims — Cassidy 
Fork  Boom  &  Lumber  Co.  v.  Roaring  Creek 
&   C.   R.   Co.,   119   Fed.    425. 

40.  Bill  based  on  agreement  for  use  of 
patented  device  for  discovery  and  account- 
ing as  to  the  use  of  such  device  as  a  basis 
of  royalty  will  not  lie  since  defendant  is 
entitled  to  a  jury  trial,  and  under  Rev.  St. 
U.  S.  §  724,  plaintiff  may  compel  production 
of  the  evidence  at  law — Safford  v.  Ensign 
Mfg.  Co.    (C.  C.  A.)    120  Fed.   4 SO. 

41.  A  demurrer  by  defendant  on  the 
ground  that  the  claims  of  the  judgment 
creditors  not  having  been  proven  in  the  in- 
solvency proceedings  they  thereby  lost  their 
remedy  against  the  corporation,  cannot  be 
sustained  where  it  appears  that  complain- 
ants were  non-resfdents  and  under  the  stat- 
ute governing  insolvency  proceedings  the 
claims  of  nonresidents  who  have  not  ap- 
peared voluntarily  in  the  proceedings  are 
not  affected  (Gen.  Laws,  c.  274) — Clark  v. 
Rhode  Island  Locomotive  Works  (FJ.  I.)  53 
Atl.   47. 

42.  Hudson  V.  Wood,  119  Fed.  764. 


§  2A 


PRODUCTION   AND   INSPECTION. 


931 


cannot  be  had/^  but  the  rule  is  not  extended  to  a  creditor's  suit  in  which  the 
creditors  are  endeavoring  to  discover  assets."  In  a  suit  against  a  corporation  by  a 
judgment  creditor  to  compel  discovery  of  the  names  of  stockholders,  the  bill  is  not 
liable  to  demurrer  for  failure  to  allege  that  the  stockholders  had  not  protected 
themselves  from  liability;  if  it  alleges  that  complainants  did  not  Imow  their  names 
iind  residences  and  the  amount  of  stock  held  by  them,  that  the  treasurer  had- 
been  requested  to  give  them  such  information  but  had  neglected  to  do  so,  and  that 
they  had  no  means  of  learning  the  facts  necessary  to  prosecute  an  intended  action  at 
law,  it  is  sufficient  as  to  allegations  of  want  of  knowledge.*^  It  is  not  necessary  to 
discovery  that  a  bill  against  stockholders  to  subject  equitable  assets  of  the  corporation 
to  a  judgment  against  it,  asking  discovery  as  incidental  relief,  should  be  verified.*' 
On  a  bill  for  partition  asking  discovery  and  alleging  that  defendants  have  in  their 
possession  a  will  under  which  complainant  claims  title,  and  which  they  refuse  to 
produce  or  prove,  or  permit  complainant  to  use  for  that  purpose,  the  court  will 
construe  the  will  on  the  issue  as  to  whether  complainant  has  a  right  to  discovery.*'' 
An  order  for  the  inspection  of  books  by  a  party  litigant  before  trial  where  the 
books  contained  entries  which  have  no  concern  with  his  transaction  and  which  he  is 
not  entitled  to  inspect  must  require  deposit  of  books  in  the  clerk's  office  and  attend- 
ance of  a  representative  of  the  other  party,  and  that  the  clerk  shall  determine  the 
relevancy  of  contested  entries  as  to  their  inspection,  the  judge  being  empowered 
to  review  such  determination  at  chambers  on  summary  application.*^ 

§  2.  Production  and  inspection  of  hoohs,  papers,  and  documents;  examina- 
tion of  party. *^  A.  Right  to  examination  or  inspection. — Production  and  inspec- 
tion of  books  may  be  had  in  the  Federal  courts  before  trial  at  law,^"  and  in  Mon- 
tana.^^  The  granting  of  the  order  is  in  the  discretion  of  the  trial  court  and  it 
may  exclude  such  books  or  papers  on  trial,  if  the  inspection  is  not  allowed.^' 
The  application  must  conform  to  the  statute.'*'  It  must  appear  that  the  examina- 
tion of  a  party,^*  or  the  inspection  of  books,  papers,  or  documents,^^  is  necessary 


4.3.  Tillinghast  v.  Chace,  121  Fed.  435;  Ex- 
celsior Wooden  Pipe  Co.  v.  Seattle  (C.  C.  A.) 
117  Fed.  140. 

44.  Hudson  v.  Wood,  119  Fed.   764. 

4.';.  Under  Gen.  Laws,  c.  180,  §  14 — Clark 
V.  Rhode  Island  Locomotive  Works  (R.  I.) 
63  Atl.  47. 

4(5.  Montgomery  Iron  Works  v.  Capital 
City  Ins.  Co.  (Ala.)  34  So.  210. 

47.     Hanneman  v.  Richter,  63  N.  J.  Eq.  803. 

45.  Gray  v.  Schneider.  119  Fed.  474. 

4ft.  The  discretion  of  the  court  on  an  ap- 
plication for  production  of  books,  papers  and 
documents  to  enable  a  party  to  prepare  for 
trial  should  be  liberally  exercised  (Hart  v. 
Ogrdensburg  &  L.  C.  R.  Co.,  69  Hun  [N.  Y.] 
497,  cf.  Richmond's  Appeal,  59  Conn.  226,  21 
Am.  St.  Rep.  85);  but  they  must  contain  evi- 
dence relative  to  the  merits  of  the  case 
(Keeler  v.  Dusenbury,  1  Duer  [N:  T.]  660); 
and  the  party  applying  must  show  this  to  be 
the  fact  to  the  satisfaction  of  the  court  or 
officer  by  stating  facts  and  circumstances 
(Davis  V.  Dunham,  13  How.  Pr.  [N.  T.]  425; 
New  England  Iron  Co.  v.  New  York  Loan  & 
Imp.  Co.,  55  How.  Pr.  [N.  Y.]  351;  Lienan  v. 
Dinsmore,  10  Abb.  Pr.  fN.  S.;  N.  Y.]  212;  Ely 
V.  Mowry,  12  R.  I.  570);  and  show  enough 
facts  to  raise  a  presumption  that  the  docu- 
ments exist  and  are  in  the  possession  and 
control  of  the  other  party  (Hoyt  v.  American 
Exch.  Bank,  1  Duer  [N.  Y.]  655;  Ahlymeyer 
v.  Healy,  12  N.  Y.  State  Rep.  677).  Curiosity 
alone  Is  insufficient  (Bien  v.  Hellman,  2 
Misc.    [N.   Y.]    168);    books    of   no   use   when 


produced  are  not  subject  to  the  order  (Whit- 
man v.  Weller.  39  Ind.  515).  "Fishing  for  evi- 
dence," or  "drawing  the  fire"  of  the  opposite 
party  will  not  be  allowed  (Arnold  v  Paw- 
tuxet  Valley  Water  Co.,  18  R.  I.  189);  if  the 
applicant  can  gain  access  to  the  books  with- 
out an  order  it  will  not  be  allowed  (McAllis- 
ter v.  Pond,  6  Duer  [N.  Y.]  702,  15  How.  Pr. 
299).    See  extended  note  in  41  Am.  St.  R.  392. 

50.  Especially  if  their  existence  has  beeii 
disclosed  by  discovery  (under  Rev.  St.  U.  S. 
724,  providing  that  in  actions  at  law  the  fed- 
eral courts  may  require  production  of  books 
or  writings  in  the  possession  or  power  of 
parties,  on  motion  and  notice,  which  contain 
evidence  pertinent  to  the  issue  under  circum- 
stances allowing  such  production  in  chan- 
cery)— Gray  v.  Schneider,  119  Fed.  474. 

51.  Where  an  action  at  law  is  pending, 
the  court  may  order  an  inspection  of  books] 
papers  and  documents  in  possession  of  the 
other  party  containing  evidence  relating  to 
the  merits  of  the  action  or  defense  (Code  Civ 
Proc.  §  1810) — State  v.  District  Ct.,  27  Monti 
441,  71  Pac.  602.  Since  the  statute  enumer- 
ates the  reasonable  grounds  for  it,  it  is  not 
an   "unreasonable  search   or  seizure." Id. 

52.  Under  Code  Civ.  Proc.  §  394 — Chamber- 
lain v.  Chamberlain  Banking  House  (Xeb  ) 
93  N.  W.  1021. 

53.  Under  Code  Civ.  Proc.  c.  8,  art.  4 Ro- 

mer   v.    Kensico   Cemetery,    79  App.   Div     (N 
Y.)   100. 

54.  Hunt  v.  Sullivan,  79  App.  Div.  119,  12 
N.  Y.  Ann.  Cas.  328.    Plaintiff  cannot  have  an 


932 


DISCOVERY  AND  INSPECTION. 


§  2A 


to  the  other  party  in  the  preparation  of  his  case  for  trial.  Mere  "fishing  excursions" 
to  probe  the  other  part}'  for  possible  grounds  of  an  action  or  defense  are  not  allow- 
able.°®     It  must  appear  that  the   information  sought  is   peculiarly  within   the 


examination  of  defendant  before  trial  to  ob- 
tain information  to  enable  him  to  ask  recov- 
ery of  a  specific  amount  if  he  can  state  the 
amount  without  such  examination  with  rea- 
sonable accuracy  and  his  demand  is  not  com- 
plicated with  other  matters — Boeck  v.  Smith, 
85  App.  Div.  (N.  T.)  575.  An  order  for  exam- 
ination of  certain  defendants  to  enable  plain- 
tiff to  frame  his  pleadings  will  not  be  al- 
lowed unless  he  shows  a  cause  of  action  by 
affidavit  and  the  necessity  of  the  examina- 
tion; that  he  has  insufficient  information 
to  draw  his  complaint,  and  that  defend- 
ants have  such  necessary  information  to  the 
obtaining'  of  his  relief — Butler  v.  Duke,  39 
Misc.  (N.  Y.)  235.  Where  the  grounds  of 
complaint  in  an  action  by  a  minority  stock- 
holder against  the  directors  •was  that  under 
certain  agreements  they  were  mismanaging 
the  corporation  to  their  o"n'n  advantage  and 
to  the  injury  of  the  stockholders,  the  latter 
are  not  entitled  to  an  examination  of  the  di- 
rectors before  joinder  of  issues,  since  the 
exact  terms  of  the  agreement  as  to  which 
the  plaintiffs  w^ere  ignorant  need  not  be 
alleged — Elmes  v.  Duke,  39  Misc.  (N.  T.)  244. 
Where  it  appears  in  an  action  to  reach  part 
of  the  income  from  a  trust  fund  that  the 
beneficiary  was  entitled  to  as  much  as  was 
necessary  for  his  support,  plaintiff  may  have 
an  examination  of  the  trustees  before  trial 
to  determine  the  amount  of  income  and  sur- 
plus, if  any,  and  to  find  in  whose  possession 
books  relating  to  the  trust  are  kept — Corn 
Exch.  Bank  v.  Lorillard,  84  App.  Div.  (N.  T.) 
194.  Where  a  stockholder  who  had  exchan- 
ged his  common  stock  for  bonds  of  a  con- 
solidated company  alleged  in  an  affidavit 
asking  examination  of  the  directors  who 
were  defendants,  together  with  the  other 
corporations  constituting  the  consolidated 
company,  that  they  had  deceived  him  as 
to  the  value  of  his  stock,  and  had  retained 
for  their  own  benefit,  the  difference  be- 
tween the  interest  paid  on  the  bonds  he 
had  received  and  the  earning  capacity  of 
the  stock  he  had  surrendered,  and  that 
he  had  been  damaged  as  an  individual,  he 
will  not  be  allowed  to  examine  certain  of 
the  directors  of  his  company  before  trial, 
since  he  is  able  to  frame  a  complaint  for 
deceit  and  damages  based  on  the  alleged 
misrepresentations  from  an  injury  result- 
ing therefrom — Butler  v.  Duke,  39  Misc.  (N. 
Y.)  235.  An  affidavit  by  a  minority  stock- 
holder of  a  corporation  alleging  that  its 
directors  controlled  three  similar  corpora- 
tions and  a  consolidated  company  embracing 
all  ol  them;  that  they  agreed  to  divert  busi- 
ness of  the  company  to  other  corporations 
and  afterwards  to  the  consolidated  com- 
pany; that  they  withheld  from  stockholders, 
dividends  earned,  and  had  benefited  individ- 
ually by  large  profits,  will  entitle  him  to 
Bue  for  an  accounting  of  profits  and  enable 
him  to  draw  his  complaint  so  that  an  ex- 
amination of  the  directors  before  trial  will 
not  be  allowed;  the  extent  of  the  damages 
caiinot  be  made  a  subject  for  examination 
of  the  directors;  nor  can  a  director  be  re- 
quired to  disclose  what  has  been  done  with 
the  property  of  the  corporation,  merely  be- 
cause of  his  fiduciary  relation  to  the  stock- 


holder, where  the  affidavit  for  such  exam- 
ination shows  that  plaintiff  has  sufficient  in- 
formation to  draw  his  complaint — Elmes 
V.   Duke,   39  Misc.    (N.   Y.)    244. 

55.  It  will  not  be  allowed  to  enable  plain- 
tiff to  form  its  complaint  where  It  has  the 
necessary  information  without  such  order — 
Snow,  Church  &  Co.  v.  Snow-Church  Surety 
Co.,  80  App.  Div.  (N.  Y.)  40.  Where  in  an  ac- 
tion by  customers  of  stock  brokers  to  sur- 
charge accounts  rendered  because  certain 
items  are  false  and  fraudulent  and  the  pre- 
tended transactions  fictitious,  It  is  alleged 
that  the  information  cannot  be  obtained  ex- 
cept from  the  stock  brokers,  plaintiffs  are 
entitled  to  examination  of  such  persons  be- 
fore trial  to  determine  who  are  the  buy- 
ers and  sellers  in  the  alleged  transactions — 
Caldwell  v.  Labaree,  40  Misc.  (N.  Y.)  564. 
Where  defendant  in  an  action  to  recover 
services  for  transactions  on  the  stock  ex- 
chajige  and  for  advancements,  did  not  allege 
that  any  particular  account  or  entry  sought 
to  be  examined  was  necessary  to  enable  him 
to  prepare  his  answer  or  prove  his  defense, 
or  that  any  account  or  entry  in  the  book 
would  be  of  value  to  him,  an  order  giving 
him  the  general  right  to  inspect  plain- 
tiff's books  to  discover  defects  in  the  lat- 
ter's  proof  or  matter  justifying  a  defense 
or  counterclaim,  is  improper — Seligsberg  v. 
Schepp,  79  App.  Div.  (N.  Y.)  626.  In  an 
action  by  an  insurer  to  recover  additional 
premiums  on  indemnity  policies  providing 
that  the  premium  should  be  based  on  an 
estimate  of  the  compensation  paid  by  the 
insured  to  its  employes  during  the  existence 
of  the  policy,  and  that  such  premium  should 
be  raised  if  greater  compensation  was  paid, 
and  a  certain  amount  thereof  refunded  if 
less  compensation  was  paid,  and  as  to  other 
policies,  they  were  based  on  the  number  of 
employes  under  certain  conditions,  both  pol- 
icies giving  plaintiff  the  right  to  examina- 
tion of  books  of  the  insured  in  so  far  as 
relating  to  the  number  of  employes  and  the 
matter  of  their  wages,  in  which  the  com- 
plaint alleged  that  the  number  of  employes 
and  the  amount  of  wages  was  greater  than 
appeared  in  the  representations  of  assured, 
plaintiff  is  entitled  to  an  order  for  exam- 
ination of  defendant's  books  (Code  Civ.  Proc. 
§  803) — Fidelity  &  Casualty  Co.  v.  Seagrist, 
79  App.  Div.  (N.  Y.)  614.  Where  defend- 
ants do  not  show  that  the  books  of  plain- 
tiff contain  entries  which  they  wish  and  do 
not  excuse  their  own  failure  in  not  ob- 
taining the  necessary  information  from  per- 
sons whom  they  say  informed  them  as  to 
the  books,  they  cannot  compel  plaintiff  to 
produce  his  books  in  order  to  support  a 
counterclaim — Russell  v.  McSwegan,  39  Misc. 
(N.  Y.)   306. 

56.  Interrogatories  for  discovery  and 
written  answers  under  oath,  such  as  seek  ex- 
clusively matter  for  the  other  side  which 
amount  to  a  fishing  e::cursion  and  are  un- 
reasonable and  irrelevant  or  seek  to  estab- 
lish a  forfeiture  to  contradict  written  in- 
struments or  answers  privileged  on  the 
ground  of  public  Interest,  are  not  allow- 
able— Volusia  County  Bank  v.  Bigelow  (F]a.) 
33  So.   704. 


§  2A 


PRODUCTION  AND  INSPECTION. 


933 


kno-n-ledge  of  the  other  party/"  and  that  the  party  seeking  it  intends  to  use  it  at 
the  trial.^^  The  nature  of  the  pending  action  in  which  the  information  is  sought 
to  be  used  and  the  nature  of  relief  sought  must  appear  to  the  court,^"  and  the  peti- 
tion must  show  expressly  or  impliedly  that  the  court  has  acquired,,  or  would  have, 
jurisdiction  in  the  action  in  which  an  examination  is  sought.®^  The  books  and  pa- 
pers sought  must  be  within  the  state.®^  Where  complainant  alleged  injury  by 
libel  in  a  newspaper,  an  examination  before  suit  to  enable  him  to  ascertain  from 
the  person  in  control  who  is  the  proprietor  of  the  paper  was  denied  though  in 
former  suits  certain  persons  who  were  alleged  to  be  the  editors  or  proprietors 
filed  answers  denying  such  allegation.®-  It  is  no  defense  to  a  motion  for  dis- 
covery and  inspection  of  the  books  of  a  firm  that  it  has  dissolved  and  has  turned  its 
books  and  papers  over  to  a  corporation  succeeding  to  its  business,  where  it  appears 
that  the  members  of  the  firm  have  become  the  officers  of  the  corporation  and  it  is  not 
shown  that  they  did  not  have  control  of  the  books  and  could  not  produce  them  for 
inspection.®' 

Under  the  Florida  statute,  plaintiff  may  propound  interrogatories  to  a  claimant 
of  property  seized  under  execution  to  discover  affirmative  evidence,  disprove  good 
faith  of  her  claim,  or  to  rebut  a  prima  facie  title  asserted  by  her  bv  showing  fraud. 
The  statute  was  intended  to  enable  a  party  to  secure  admissions  by  the  other  party 
before  trial  to  relieve  the  necessity  of  producing  evidence  to  prove  particular  issues 
thus  admitted.  Such  answers  are  admissible,  though  they  may  expose  the  persons 
answering  them  to  actions  or  to  penalties,  also  where  the  defendant  in  ejectment 
seeks  to  learn  the  character  in  which  plaintiff  claims,  or  seeks  secondarv  evidence  of 
lost  written  documents,  or  seeks  to  ascertain  the  character  of  confidential  communi- 
cations which  the  other  party  wotdd  not  be  privileged  from  disclosing,  or  to  dis- 
prove the  good  faith  of  a  prima  facie  defendant,  or  to  show  fraud  on  the  part  of  the 
defendant.®* 

Plaintiff  cannot  be  accused  of  laches  in  delaying  an  application  for  inspection 
of  books  of  defendant  where  it  alleges  that  defendant  made  statements  recrardin*' 
the  facts  sought  to  be  discovered,  which  plaintiff  believed  to  be  true,  and  that  on 
discovery  of  the  falsity  thereof  plaintiffs  at  once  applied  for  the  examination,  which 
statement  was  not  denied  by  defendant.®^ 

One  suing  a  municipality  may  inspect  public  records  and  documents  pertinent 
and  material  to  the  issues  in  possession  of  defendant,  but  cannot  have  a  peremptory 
order  requiring  the  latter  on  motion  after  notice  to  defendant  in  its  corporate  capac- 
ity, to  exhibit  such  records  and  documents  to  his  inspection  at  certain  times  and 
places;  he  may  make  a  motion,  designating  the  record  or  document  he  wishes  to 
inspect,  for  a  rule  on  the  officer  or  agent  of  the  municipality  having  custodv  of  it. 


oT.  An  affidavit  for  examination  of  direct- 
ors of  a  corporation  before  issue  joined  in 
an  action  by  a  stockholder,  must  show  that 
the  information  desired  is  peculiarly  vrith- 
in  the  knowledge  of  the  directors  and  can- 
not be  obtained  by  plaintiff  in  any  other 
way,  and  that  he  demanded  such  informa- 
tion from  the  directors — Elmes  v.  Duke,  39 
Misc.  (N.  T.)  244. 

5S.  Where  it  is  alleged  as  a  reason  for 
askingr  examination  of  plaintiff  before  trial 
that  it  is  necessary,  in  order  that  defend- 
ant may  properly  prepare  for  trial,  but  it 
does  not  appear  that  he  intends  to  use 
the  evidence  at  the  trial,  the  examination 
will  be  denied  without  prejudice  to  a  re- 
newal   of    the    motion   on    proper    grounds — 


District    Ct.    27    Mont.     441 


Dudley  v.  New  York  Filter  Mfs-.  Co..  80  App 
Div.    (X.   T.)    164. 

59.  State 
71  Pac.   602. 

60.  61.  Snow,  Church  &  Co.  v.  Snow- 
Church   Surety  Co.,   SO  App.  Div.    (N.   T.)    40 

62.  The  court  observes  that  under  the 
authority  of  Matter  of  "Weil.  25  App.  Div. 
(N.  T.)  173  this  examination  would  be  al- 
lowed, but  "in  this  department"  the  rule 
is  otherwise — In  re  Singer,  40  Misc.  (X  T  ) 
561. 

63.  Fidelity  &  Casualtv  Co.  v.  Sea«Tist, 
SO   App.    Div.    (N.    T.)    625. 

ft4,  Volusia  County  Bank  v.  Bigelow  (Fla.) 
33   So.   704. 

65.  Five  years  delay — Fidelity  &  Casualty 
Co.  V.   Seagrist,   SO  App.  Div.    (X.  Y.)    625. 


934 


DISCOVERY  AND  INSPECTION. 


§  2H 


to  show  cause  why  the  inspection  should  not  be  allowed,  and  if  the  rule  is  made  ab- 
Bolute  on  the  return  and  disobeyed,  it  may  be  enforced  by  attachment.®^ 

(§2)  B.  Persons,  hoolcs,  and  papers  liable  to  examination. — All  of  joint  or 
successive  parties  should  be  examined  if  no  one  of  them  can  make  full  disclosure." 
The  books  and  documents  to  be  examined  must  be  limited  to  those  pertaining  to 
the  matter  in  controversy. ««  A  provision  in  an  order  allowing  inspection  of  letters 
written  to  defendant  concerning  a  claim  is  too  broad  since  defendant  cannot  be 
bound  by  statements  written  by  strangers  to  the  transaction.^® 

(§2)  C.  Procedure;  use  at  trial. — Motion  or  application  for  physical  examin- 
ation should  be  made  before  trial  if  pleadings  apprise  defendant  of  nature  of  injury.''* 
A  "petition"  to  inspect  books  and  papers  in  the  hands  of  defendant  cannot  be 
joined  with  a  "motion"  for  an  order  for  examination  of  a  party  before  trial.'^^  A 
demand  for  inspection  of  papers  is  waived  by  the  opposing  party's  appearance  ta 
oppose  an  order  after  service  of  an  order  to  show  cause."  That  a  petition  for 
discovery  and  inspection  of  papers  in  possession  of  defendant  was  subscribed  to  by 
plaintiff's  attorney  instead  of  himself  is  not  material  where  he  verified  the  petition.^* 
The  petition^*  must  show  expressly  or  by  implication  that  the  court  has  acquired 
or  would  have  jurisdiction,  in  the  action  in  aid  of  which  an  examination  of  books 
and  papers  is  sought  to  enable  plaintiff  to  frame  his  complaint,  and  that  the 
books  and  papers  are  within  the  state.'^^ 

The  affidavit  for  examination  of  defendant  before  trial  must  show  facts  ren- 
dering the  examination  necessary,  or  why  it  will  not  suffice  to  bring  out  the  facts 
at  the  trial.^®     On  application  for  an  order  for  examination  of  defendant's  books 


66.  District  of  Columbia  v.  Bakersmith, 
18  App.  D.  C.  574. 

67.  Trustees  appointed  at  different  times 
no  one  of  whom  could  establish  all  the 
facts  (order  for  examination  of  such  trus- 
tees before  trial  to  discover  in  whose  pos- 
session the  books  were  kept  and  the  amount 
of  the  income  and  surplus  properly  includ- 
ed all  the  trustees) — Corn  Exch.  Bank  v. 
Lorillard,    84  App.   Div.    (N.   Y.)    194. 

6S.  Where  the  order  requires  defendant 
to  produce  ledgers,  cash  books,  time  books, 
time  sheets,  and  all  other  books  showing- 
the  amount  of  wages  paid  to  employes  dur- 
ing period  covered  by  policies,  it  is  too 
broad  since  only  the  number  of  employes 
and  the  amount  of  money  paid  to  them  is 
sought  to  be  discovered,  and  it  must  be 
modified  to  require  only  producing  of  cash 
books,  time  books  and  time  sheets  during 
the  period.  It  should  be  limited  to  books  of 
original  entry  showing  payments  to  employ- 
es— Fidelity  &  Casualty  Co.  v.  Seagrist,  79 
App.  Div.  (N.  T.)  614.  The  inspection  given 
under  an  order  to  investigate  the  books  of 
account  of  the  other  party  concerning  a 
certain  transaction,  must  be  limited  to  the 
particular  items  showing  the  facts  men- 
tioned and  cannot  relate  to  the  entire  books 
of  the  other  party;  it  cannot  be  limited  to 
books  and  records  of  one  year;  where  the 
order  authorizes  him  to  inspect  all  letter 
press  copy  books  of  defendant  containing 
letters  written  by  its  officers,  to  ascertain 
letters  relating  to  the  claim,  a  provision 
which  enables  inspection  of  copies  of  maps 
of  all  workings  made  by  defendant  in  a 
certain  year,  was  "too  broad — State  v.  Dis- 
trict Ct.,  27  Mont.  441,  71  Pac.  602.  An  order 
requiring  officers  of  a  defendant  corpora- 
tion to  prodiice  all  books  of  the  corporation 
for   examination    is    too    broad    and    must   be 


restricted  to  the  corporate  minute  books 
and  by-laws  pertaining  to  the  instrument 
set  out  in  the  complaint  and  relating  to 
contracts  annexed  to  and  made  a  part  there- 
of— De  Brunoff  v.  McClure-Tissot  Co.,  83  App. 
Div.    (N.   Y.)    640. 

69.  State  v.  District  Ct.,  27  Mont.  441,  71 
Pac.  602. 

70.  Examination  of  plaintiff's  urine  re- 
fused during  trial  where  the  petition  plead- 
ed injury  to  his  kidneys — Austin  &  N.  W.  R. 
Co.  V.   Cluck    (Tex.    Civ.   App.)    73   S.   W.   569. 

71.  Under  Code  Civ.  Proc.  §  805 — Boeck 
v.  Smith,  85  App.  Div.   (N.  Y.)   575. 

72.  73.  Hallett  v.  American  Law  Book 
Co.,    40   Misc.    (N.   Y.)    652. 

74.  Sufficiency  of  shot^'ins  o£  need  for  ex- 
amination. Plaintiff  suing  on  a  life  policy 
providing  that  the  amount  thereof  could 
be  realized  from  the  death  fund  existing 
at  the  time  of  the  insured's  death,  the  pro- 
ceeds of  the  assessment  levy  and  the  re- 
serve fund  in  excess  of  a  certain  amount 
of  outstanding  bonds,  Is  entitled  to  an  ex- 
amination of  the  insurance  company's  books 
and  officers  before  trial  to  ascertain  its  finan- 
cial condition  on  a  complaint  alleging  on 
information  and  belief  that  sufficient  funds 
existed  in  the  hands  of  defendant  company 
to  pay  the  policy  -which  was  denied  by  de- 
fendant, and  averring  that  the  only  proof 
plaintiffs  had  concerning  such  facts  were 
certain  reports  made  by  the  company  to  the 
insurance  commissioner  and  published  state- 
ments which  were  not  in  proper  form  or 
sufficient  to  justify  plaintiff  in  relying  upon 
them — McCoy  v.  Mutual  Reserve  Life  Ins. 
Co.,    84   App.   Div.    (N.   Y.)    315. 

75.  Snow,  Church  &  Co.  v.  Snow-Church 
Surety  Co.,   80   App.   Div.    (N.   Y.)    40. 

76.  Hunt  V.  Sullivan,  79  App.  Div.  119. 
12  N.  Y.  Ann.  Cas.   328.     See,  also,  McCoy  v. 


§  2D 


PRODUCTION  AND  INSPECTION. 


935 


and  papers,  the  affidavit  in  support  must  show  that  an  action  is  pending  and  advise 
the  court  of  the  nature  of  the  action,  the  relief  sought,"  and  the  necessity  of  the 
examination  J*  The  affidavit  for  examination  of  a  witness  before  suit  to  discover  who 
is  proprietor  of  a  newspaper  to  bring  an  action  against  him  for  libel  must  name 
definitely  the  proposed  defendant  and  show  a  cause  of  action  against  him  in  favor 
of  the  plaintiff.^^ 

Where  the  entire  series  of  interrogatories  propounded  under  the  Florida  prac- 
tice was  objected  to  as  improper  and  certain  ones  as  incompetent  and  irrelevant,  a 
ruling  of  the  court  sustaining  the  objection  is  wrong  if  any  interrogatory  proves  com- 
petent,^" 

After  an  order  for  examination  of  defendants  before  trial  was  granted,  and 
one  of  them  left  the  jurisdiction  before  an  application  was  made  to  reverse  the 
order,  but  after  advice  that  it  could  not  be  sustained,  his  action  will  not  justify 
continuance  of  the  order  as  to  him  where  proceedings  were  begun  for  reversal  within 
a  few  days  after  the  order  was  granted.*^ 

A  party  may  contradict  answers  to  interrogatories  introduced  by  him,^-  and 
this  by  parol  where  the  parol  evidence  is  otherwise  admissible.*' 

(§3)  D.  Order,  and  time  and  manner  of  examination. — An  order  for  exam- 
ination of  defendant's  books  and  papers  by  plaintiff  must  limit  the  time  within  which 
inspection  shall  be  made.^*  It  may  allow  inspection  of  papers  in  possession  of  de- 
fendant on  a  particular  date  and  at  such  other  times  as  the  referee  may  appoint.'® 
An  ex  parte  order  which  requires  the  secretary  of  a  corporation  to  appear  at  a  certain 
time  and  place  before  a  referee  and  submit  to  examination  and  produce  books 
and  papers  relating  to  a  fire  insurance  policy  issued  by  the  company  is  not  de- 
fective as  failing  to  comply  with  the  statute  governing  proceedings  for  inspection 
of  books  where  the  order  is  for  the  examination  of  the  secretary  before  trial ;  it  does 
not  authorize  inspection  of  the  corporate  books  and  papers  but  only  the  production 
of  them  for  the  examination  to  enable  the  officer  to  refer  to  them  for  refreshment 
of  his  recollection.^^ 

Jurisdictional  facts  must  be  embodied  in  the  order  if  any  special  jurisdictional 
power  be  exercised.*'^  If  an  order  for  examination  of  defendant's  books  and  papers 
is  made  without  a  proper  showing,  or  embraces  inspection  of  papers  which  could 
contain  no  evidence  relevant  to  the  issue  under  the  circumstances,  or  fails  to  limit 


Mutual  Reserve  Life  Ins.  Co.,  84  App.  Div. 
(N.  Y.)  315.  An  examination  of  defendants 
will  not  be  allowed  plaintiff  before  trial  in 
order  to  state  the  amount  of  his  damages 
accurately  in  an  action  for  deceit,  since  such 
statement  is  not  required,  and  his  informa- 
tion of  the  fraud  may  be  alleged  on  informa- 
tion and  belief — Butler  v.  Duke,  39  Misc. 
(N.   T.)    235. 

77.  Butler  V.  Duke,  39  Misc.  (N.  T.)  235. 
Sufficiency  of  affidavit — Elmes  v.  Duke,  39 
Misc.   (N.  T.)   244. 

78.  State  V.  District  Ct.,  27  Mont.  441.  71 
Pac.    602. 

79.  In   re   Singer,    40   Misc.    (N.   Y.)    561. 

80.  Interrogatories  submitted  under  Rev. 
Sts.  §  1116 — Volusia  County  Bank  v.  Bigelow 
(Fla.)    33   So.   704. 

81.  Boeck  V.  Smith,  85  App.  Div.  (N.  Y.) 
575. 

82.  Under  2  Ballinger's  Ann.  Codes  &  St. 
§  6012 — Sawdey  v.  Spokane  Falls  &  N.  R.  Co., 
30   Wash.   349,   70  Pac.   972. 

83.  Under  Code  Pr.  art.  354 — Le  Bleu  v. 
Savoie,    109    La.    680. 


84.  State  V.  District  Ct.,  27  Mont.  441.  71 
Pac.    602. 

85.  Hallett  V.  American  Law  Book  Co.,  40 
Misc.    (N.   Y.)    652. 

86.  Under  Code  Civ.  Proc.  §  872.  subd.  7. 
and  §§  803-809— Mauthey  v.  Wyoming  Coun- 
ty Co-op.  Fire  Ins.  Co.,  76  App.  Div.  (N.  Y.) 
579. 

87.  The  Circuit  Court  of  Alabama,  though 
of  general  jurisdiction  is  of  limited  jurisdic- 
tion in  the  terms  of  the  statute  allowing 
either  party  to  a  civil  suit  at  law,  a  discov- 
ery on  interrogatories  propounded  to  the  ad- 
verse party  as  in  courts  of  equity,  so  that 
the  existence  of  the  jurisdictional  facts  must 
affirmatively  appear  in  the  record  on  tlie 
granting  of  a  judgment  by  default  when  the 
answers  are  not  full  or  are  evasive,  and 
the  requirement  is  not  satisfied  by  a  recital 
in  the  judgment  that  the  court  sustains 
plaintiff's  motion  for  judgment  by  default 
or  because  defendants  failed  to  answ^er  prop- 
erly such  interrogatories  (Under  Code,  1896, 
§  1856.  See,  also,  §§  1850  et  seq.) — Good- 
water  Warehouse  Co.  v.  Street  (Ala.)  34  So. 
903. 


936 


DISCOVERY  AND  INSPECTION. 


§  2E 


the  time  of  inspection,  certiorari  will  lie  on  the  ground  that  the  court  has  exceeded 
its  jurisdiction.^* 

(§2)  E.  Physical  examination  to  prepare  for  trial  or  to  prepare  evidence. — 
The  later  cases  as  to  allowance  of  examination  of  the  person  of  plaintiff  in  personal 
injury  cases  to  enable  plaintiff  to  prepare  his  defense  are,  like  the  earlier  cases,  in 
conflict,  but  by  the  weight  of  authority  the  rule  may  be  said  to  be  that  such  exam- 
ination may  be  allowed  whenever,  in  the  discretion  of  the  court,  the  ends  of 
justice  demand  it.*^  Kentucky^"  and  North  Dakota^^  allow  the  examination,  and 
Illinois®-  and  Texas®^  refuse  it.  The  consequences  of  refusal  to  submit  to  a  rule  for 
such  examination  are  various  in  different  states,®* 


88.     state  v.  District  Ct.,   27  Mont.   441,  71 
Pac.   602. 

80.  Tiote.  The  leading  authority  against 
allowing  the  examination  is  Union  Pac.  Ry. 
Co.  V.  Botsford,  141  U.  S.  250,  35  Law.  Ed.  734, 
which  is  influenced  by  the  federal  statute 
quoted  in  the  opinion,  as  preventing  any 
other  manner  of  examination  or  discovery 
than  that  prescribed  by  itself;  and  there 
is  a  strong  dissenting  opinion  by  Justice 
Brewer  refusing  to  assent  to  the  doctrine 
that  such  examination  is  not  sanctioned  at 
common  law;  the  courts  of  various  states 
have  refused  to  accept  the  ruling  in  this 
case,  the  North  Dakota  Supreme  Court  re- 
marking that  no  such  limitation  on  the  court 
there  exists  either  by  statute  or  under  the 
Constitution  of  the  State.  See  Brown  v.  Chi- 
cago. M.  &  St.  P.  Ry.  Co.  (N.  D.)  95  N.  W. 
153  (this  case  reviews  the  conflicting  au- 
thorities and  cites  many  cases  from  differ- 
ent states).  For  other  states  in  accord  with 
the  latter  case,  see  Lane  v.  Spokane  Falls  & 
N.  Ry.  Co.,  21  Wash.  119,  57  Pac.  367;  City 
of  Ottawa  v.  Gilliland,  63  Kan.  165,  65  Pac. 
252;  Belt  Elec.  Line  Co.  v.  Allen,  102  Ky. 
551  (see  this  case  for  a  statement  of  the 
rule  according  to  the  weight  of  authority); 
Schroeder  v.  Chicago,  R.  I.  &  P.  R.  Co., 
47  Iowa,  375;  Sibley  v.  Smith,  46  Ark.  275; 
Sidekum  v.  Wabash,  St.  L.  &  P.  Ry.  Co.,  93 
Mo.  400;  Atchison,  T.  &  S.  P.  R.  Co.  v.  Thul, 
29  Kan.  466;  Graves  v.  Battle  Creek,  95  Mich. 
266;  Alabama  G.  S.  R.  Co.  v.  Hill,  90  Ala. 
71;  King  v.  State,  100  Ala.  S5;  Hatfield  v. 
St.  Paul  &  D.  R.  Co.,  33  Minn.  130;  Rich- 
mond &  D.  R.  Co.  v.  Childress,  82  Ga.  719; 
Miami  &  M.  Turnpike  Co.  v.  Baily,  37  Ohio 
St.  104.  The  lower  courts  of  Pennsylvania 
have  acquiesced  in  the  rule — Hess  v.  Lake 
Shore  &  M.  S.  R.  Co.,  7  Pa.  Co.  Ct.  R.  565. 
The  court  of  Civil  Appeals  in  Texas  has 
heretofore  held  the  contrary — Austin  &  N. 
W.  R.  Co.  v.  Cluck  (Tex.  Civ.  App.)  73  S.  W. 
569;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Brown 
(Tex.  Civ.  App.)  75  S.  W.  807.  But  the 
same  court  recognizes  the  weight  of  author- 
ity, and  observes  in  another  case  (Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Gibbs  [Tex.  Civ.  App.] 
76  S.  W.  71)  that  the  supreme  court  of  the 
state  is  inclined  to  allow  such  examina- 
tion, citing  L  &  G.  N.  Ry.  Co.  v.  Under- 
wood, 64  Tex.  463  and  Missouri  Pac.  R.  Co. 
V.  Johnson,  72  Tex.  95.  In  Indiana  the  right 
to  such  examination  is  now  recognized  in 
South  Bend  v.  Turner,  156  Ind.  418,  which 
directly  overrules  former  cases,  (Pennsyl- 
vania Co.  V.  Newmeyer,  129  Ind.  401  partic- 
ularly) and  shows  that  conflict  has  existed 
within  the  state,  citing  Graves  v.  Battle 
Creek,  95  Mich.  266,  as  showing  the  rule  in 
the  Federal  courts  to  be  against  the  weight 


of  authority.  The  latest  Kentucky  case 
(Louisville  Ry.  Co.  v.  Hartlege  [Ky.]  74  S. 
W.  742)  is  in  accord  but  emphasizes  the 
condition  that  the  right  to  examination  is 
not  absolute  but  addressed  to  the  sound 
discretion  of  the  court.  Massachusetts,  Illi- 
nois, and  New  York  do  not  allow  examina- 
tion in  absence  of  statute,  holding  with  the 
Federal  Court  that  it  has  no  sanction  at  the 
common  law — Stack  v.  New  York,  N.  H.  & 
H.  R.  Co.,  177  Mass.  155;  McQuigan  v.  Dela- 
ware, L.  &  W.  R.  Co.,  129  N.  Y.  50;  Parker 
V.  Enslow,  102  111.  272;  Peoria,  D.  &  E.  Ry. 
Co.  V.  Rice,  144  111.  227.  But  in  New  York 
it  is  now  allowed  by  statute — Lyon  v.  Man- 
hattan Ry.  Co.,  142  N.  Y.  298;  Laws  1893.  c. 
721.  See  extended  note  on  this  subject  in 
41  Am.  St.  Rep.  392  (The  changes  since 
publication  of  this  note  will  be  found  in 
the  later  cases  here  noticed). 

90.  Louisville  Ry.  Co.  v.  Hartlege  (Ky.) 
74   S.    W.    742. 

91.  Brown  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.  (N.  D.)  95  N.  W.  153,  containing  a  res- 
ume of  the  conflicting  authorities  on  per- 
sonal examination. 

92.  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Story,  104  111.  App.  132,  citing  144  111.  227, 
as  the  leading  case  in  Illinois. 

93.  Austin  &  N.  W.  R.  Co.  v.  Cluck  (Tex.) 
77  S.  W.  403,  exhaustively  reviewing  the 
authorities  pro  and  con  and  affirming  Aus- 
tin &  N.  W.  R.  Co.  V.  Cluck  (Tex.  Civ.  App.) 
73  S.  W.  569,  citing  Union  Pac.  Ry.  Co.  v. 
Botsford,  141  U.  S.  250  and  Galveston,  H. 
&  S.  A.  Ry.  Co.  V.  Sherwood  (Tex.  Civ.  App.) 
67  S.  W.  776;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Brown  (Tex.  Civ.  App.)  75  S.  W.  807.  Ex- 
amination not  allowed  because  it  w^as  un- 
disputed that  plaintiff  received  no  external 
injuries,  it  did  not  appear  that  the  examina- 
tion w^ould  throw  any  light  on  the  extent 
or  character  of  her  injuries,  and  no  sus- 
picion appeared  that  the  alleged  suffering 
was  unreal — Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Gibbs  (Tex.  Civ.  App.)  76  S.  W.  71,  citing 
I.  &  G.  N.  Ry.  Co.  V.  Underwood,  64  Tex. 
463  and  Missouri  Pac.  R.  Co.  v.  Johnson, 
72  Tex.  95  as  seeming  to  support  the  doc- 
trine of  allowing  the  examination  when  de- 
manded by   the   ends   of  justice. 

94.  The  order  requiring  a  person  to  sub- 
mit to  inspection  of  the  person  may  be  en- 
forced by  an  order  dismissing  the  action 
(South  Bend  v.  Turner,  156  Ind.  418,  83  Am. 
St.  Rep.  200).  Some  courts  enforce  the  or- 
der by  contempt  (Schroeder  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  47  Iowa.  375;  cited  with 
approval  in  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Thul,  29  Kan.  466,  44  Am.  Rep.  664).  Con- 
tra, see  dissenting  opinion  by  Brewer,  J.,  in 
Union    Pac.    Ry.    Co.    v.    Botsford,    141    U.    S, 


DISMISSAL  AND  NONSUIT. 


93/ 


DISMISSAL  AND  NONSTJIT.95 


§  !•  Voluntary  Nonsuit  or  Discontinu- 
ance.— Authority  to  Dismiss;  In  Case  of 
Counterclaim;  Submission  of  Controversy; 
Conditions;   Effect;   Reinstatement. 


§  2.     Involuntary    Dismissal    or    Nonsuit.— 

Time;  Grounds;  Defect  in  Process;  Parties; 
Pleading;  Dismissal  on  Merits;  On  Failure  of 
Proof;  Prosecution;  Waiver  of  Right;  Effect; 
Opening  and  Setting  Aside. 


§  1.  Voluntary  nonsuit  or  discontinuance. — Where  defendant  does  not  ask 
affirmative  relief,  plaintiff  at  common  law  may,  as  a  matter  of  right,  discontinue 
at  any  time  before  trial.^° 

Authority  to  dismiss. — A  general  employment  of  an  attorney  to  prosecute  an 
action  does  not  confer  on  him  the  power  to  dismiss  it.''^  A  defendant  may,  with- 
out the  assent  of  his  attorney,  enter  into  a  stipulation  with  plaintiff's  attorneys  for 
a  dismissal  of  the  action  with  prejudice  and  without  costs.®*  Where  a  committee 
for  the  reorganization  of  a  corporation  takes  a  nonsuit  in  a  suit  by  it  on  a  contract 
which  it  has  entered  into,  a  stockholder  may  at  the  discretion  of  the  court  be  allowed 
to  have  the  nonsuit  set  aside  on  the  ground  of  collusion,®^  but  if  a  majority  of  a 
committee  had  power  to  act,  failure  of  one  member  to  act  will  not  vitiate  the 
right  to  take  a  nonsuit,^  and  if  the  purpose  of  the  intervenor  is  to  protect  his  in- 
dividual interests  and  not  of  all  those  in  similar  status,  the  committee  may  take 
a  nonsuit  subject  only  to  the  intervener's  right  to  be  heard  on  his  claim  for  af- 
firmative relief.^ 

In  case  of  counterclaim  or  cross  complaint. — Where  defendant  sets  off  a  de- 
mand, plaintiff  may  take  a  nonsuit  without  prejudice  as  to  his  own  demand,  and 
a  judgment,  if  entered  for  defendant,  should  protect  plaintiff,^  but  after  a  plea 
of  set-off,  plaintiff  in  assumpsit  cannot  take  a  voluntary  nonsuit  so  as  to  prevent 
defendant  from  further  prosecuting  his  plea.*  A  second  cause  of  action  may  be 
withdrawn  though  there  has  been  a  counterclaim,  if  the  first  is  sufficient  to  meet  the 
counterclaim.^  Where  a  cross  complainant  has  been  given  jurisdiction  by  the  act 
of  the  plaintiff  in  commencing  an  action  in  a  certain  forum,  he  is  not  deprived 
of  the  right  to  maintain  the  cross  complaint  by  the  act  of  the  original  complainant 
in  dismissing.®  Notice  of  an  intention  to  dismiss  given  by  an  intervenor  to  the 
judge  after  an  adjournment  has  been  granted  for  the  purpose  of  enabling  a  party 
to  prepare  an  additional  answer  of  set-off  will  not  operate  as  a  dismissal,  preventing 
the  filing  of  the  answer  as  against  the  intervenor.'^ 

After  submission  of  controversy  to  court  or  jury. — The  court  may,  at  its  dis- 
cretion, permit  a  dismissal  after  final  submission  to  the  court  or  jury,  but  plaintiff 


250;  South  Bend  v.  Turner,  156  Ind.  418,  83 
Am.  St.  Rep.  200.  The  case  of  Austin  &  N.  W. 
R.  Co.  V.  Cluck  (Tex.  Civ.  App.)  73  S.  W. 
569  cites  the  Indiana  case  approvingly.  The 
result  is  the  discrediting  of  the  refusing 
party's  evidence — Austin  v.  N.  W.  R.  Co.  v. 
Cluck  (Tex.)  77  S.  "W.  403.  Motion  must  be 
promptly  made — Austin  &  N.  W.  R.  Co.  v. 
Cluck    (Tex.   Civ.  App.)    73   S.  W.   569. 

95.  Dismissal  In  equity  is  treated  in  the 
article  Equity,  dismissal  on  reference  in 
Reference,  limitation  of  time  to  bring  new 
action  Limitation  of  Actions,  question  of 
costs  Costs,  effect  of  dismissal  as  adjudica- 
tion Former  Adjudication. 

96.  United  States  v.  Norfolk  &  "W.  Ry.  Co. 
(C.  C.  A.)    118   Fed.   554. 

97.  Steinkamp  v.  Gaebel  (Neb.)  95  N.  W. 
684. 

98.  Paulson  V.  Lyson  (N.  D.)  97  N.  W. 
533. 

99.  1,  2.  Bangs  v.  Sullivan  (Tex.  Civ.  App.) 
73    S.   W.    74. 


3.  Rev.  St.  1810,  1812— Samahaw  v.  Sama- 
haw,   18   App.   D.   C.    76. 

4.  Samahaw  v.  Samahaw,  18  App.  D.  C.  76. 

5.  Collin  V.  Farmers'  Alliance  Mut.  Fire 
Ins.  Co.    (Colo.  App.)    70  Pac.   698. 

e.  Action  brought  by  a  judgment  cred- 
itor In  the  county  in  which  the  judgment 
was  rendered  under  Code,  §  70,  to  subject 
land  to  the  judgment — Chinn  v.  Curtis,  24 
Ky.    L.    R.    1563,    71    S.    W.    923. 

7.  On  an  intervention  in  a  receivership, 
where  it  is  agreed  that  matters  of  set-off 
may  be  proved  under  a  general  denial,  if  the 
receiver,  on  the  close  of  the  evidence,  is  di- 
rected to  file  an  answer  of  set-off  and 
counterclaim  against  the  intervenor  and  an 
adjournment  granted  for  that  purpose,  the 
counterclaim  may  be  received  and  filed  be- 
fore hearing  a  motion  by  the  intervenor 
to  dismiss,  notice  of  a  desire  to  dismiss 
having  been  first  given  to  the  judge  after 
he  left  the  bench  on  adjournment — Whit- 
comb  V.   Stringer    (Ind.)    66   N.   E.    443. 


938 


DISMISSAL  AND  NONSUIT. 


§1 


may  no  longer  dismiss  as  of  right.^  After  demurrer  and  the  due  submission  by 
both  parties  of  the  issues  to  the  court,  plaintiff  is  not  entitled  as  a  matter  of  right 
to  dismiss;^  hence  dismissal  without  prejudice  cannot  be  allowed  after  a  demurrer 
on  the  ground  of  limitations  is  sustained.^" 

After  submission  on  a  demurrer  to  the  evidence,  plaintiff's  absolute  right  to 
dismiss  without  prejudice  is  lost.^^ 

Submission  to  the  jury  is  the  submission  of  an  issue  of  fact  which  the  jury 
may  decide  in  favor  of  either  party,^^  so  plaintiff  may  dismiss  without  prejudice,  if 
before  final  submission  of  the  case  to  the  jury,  though  the  court  has  announced 
its  intention  to  give  a  peremptory  instruction  for  defendants,^^  but  the  giving  of 
a  supplementary  instruction  that  three-fourths  of  the  jury  may  render  a  verdict 
does  not  affect  a  previous  submission  so  as  to  authorize  plaintiff  to  take  a  nonsuit 
before  such  supplementary  instruction  is  given."  After  verdict  on  an  issue  of  fact, 
plaintiff  cannot  take  a  nonsuit.^'' 

In  case  of  a  trial  by  the  court,  plaintiff  cannot  dismiss  without  prejudice  after 
the  court  has  announced  its  conclusion  and  directed  the  terms  of  the  judgment  to 
be  entered."  On  a  trial  to  the  court  in  Missouri  if  the  plaintiff  desires  to  save 
his  right  to  take  a  nonsuit  until  after  decision  of  the  questions  of  law  he  should 
request  a  special  finding  thereon  before  the  issues  of  fact  are  submitted.^^ 

Wliere  discontinuance  may  be  had  as  to  a  joint  defendant  at  any  time  before 
final  judgment,  there  may  be  a  discontinuance  as  to  the  executrix  in  a  suit  on  a 
bond  against  the  sureties  and  the  executrix  of  the  principal  before  confirmation  of 
an  assessor's  report  determining  the  amount  for  which  execution  should  issue, 
though  there  has  been  a  finding  assessing  the  damages  at  the  penal  sum  of  the 
bond." 

Conditions  to  dismissal  without  prejudice. — If  after  various  postponements 
complainant  dismisses,  defendants  should  as  far  as  possible  be  indemnified  for 
expenses  in  preparing  for  trial  at  the  times  when  it  was  regularly  called  as  a  con- 
dition for  setting  aside  the  dismissal.^'  An  ex  parte  order  on  complainant's  mo- 
tion dismissing  a  bill  at  complainant's  cost  without  prejudice  to  the  right  to  begin 
a  reserved  cause  of  action  is  not  conditional  on  payment  of  costs.^**  Complainant's 
motion  to  dismiss  without  prejudice  may  be  allowed  on  condition  that  defendant's 
evidence,  which  he  has  been  at  great  pains  to  get  together,  be  perpetuated  and 
placed  so  as  to  be  available  in  future  controversies  over  the  subject-matter  between 
the  parties  or  their  privies.^^ 


8.  Bee  Bldg.  Co.  v,  Dalton  (Neb.)  93  N. 
W.    930. 

9.  Day  v.  Mountain  (Minn.)   94  N.  "W.  887. 

10.  Action  to  recover  realty — Dunham  v. 
Harvey    (Tenn.)    69   S.  W.  772. 

11.  Fronk  v.  Evans  City  Steam  Laundry 
(Neb.)  96  N.  W.  1053;  Bee  Bldg.  Co.  v.  Dal- 
ton (Neb.)  93  N.  W.  930.  Wliere  demurrer 
to  the  evidence  is  Interposed  at  the  close 
of  plaintiff's  evidence,  and  at  the  close  of 
defendant's  evidence  by  defendant  in  a  cause 
tried  to  the  court  and  the  cause  is  taken 
under  advisement  and  the  parties  required 
to  furnish  briefs,  there  is  a  final  submission 
(Rev.  St.  1899,  I  639) — Lawyers'  Co-op.  Pub. 
Co.    v.    Gordon,    173    Mo.    139. 

12.  Code  Civ.  Proc.  §  430 — Bee  Bldg.  Co. 
V.    Dalton    (Neb.)    93   N.   'W.    930. 

13.  Civ.  Code  Pr.  §  371 — Wilson  v.  Du- 
pree,   24  Ky.   L.   R.   1456,   71   S.  W.   645. 

14.  Rev.  St.  1899.  §  639,  permits  plaintiff 
to  take  a  nonsuit  at  any  time  before  the 
cause  Is  finally  submitted  to  the  jury  and 
not  afterward — McCauley  v.  Brown  (Mo. 
App.)    74    S.   W.  .464. 


15.  Code,    1883,    §    936.      Too    late    where 

the  jury  after  returning  a  verdict  is  sent 
out  to  place  its  verdict  In  proper  form — 
Strause   v.    Sawyer   (N.   C.)    45   S.   E.    346. 

16.  Code,  §§  3764,  3765 — Carney  v.  Reed. 
117   Iowa,   508. 

17.  Rev.  St.  1899,  §  695 — Lawyers'  Co-op. 
Pub.  Co.  v.  Gordon,  173  Mo.   139. 

IS.  Pub.  St.  c.  167,  §  42;  St.  1885,  c.  384, 
§    12 — McKim   v.   Titus,    182   Mass.    393. 

19.  McEwen  v.  Dimond,  81  App.  Div.  (N. 
Y.)   626. 

20.  Dismissal  of  a  bill  for  infringement 
of  a  patent  without  prejudice  to  the  right 
to  commence  a  suit  for  infringement  of  a 
re-issued  patent  obtained  pending  the  suit 
by  surrender  of  the  patent  sued  on — Kellogg 
Switchboard  &  Supply  Co.  v.  Glenn  Tel.  Co., 
121   Fed.    174. 

21.  American  Steel  &  Iron  Co.  v.  Mayer, 
123  Fed.  204.  Leave  to  discontinue  was  de- 
nied on  a  mere  sho'wing  of  desire  to  re- 
litigate — American  Steel  &  Iron  Co.  v.  May- 
er,   121   Fed.    127. 


§  1 


EFFECT  OF  VOLUNTARY  DISMISSAL.     REINSTATEMENT, 


93^ 


Effect  of  discontinuance. — A  discontinuance  does  not  bar  another  action,  though 
there  has  been  an  agreement  as  to  the  facts  and  a  submission  to  the  court  for  its 
opinion.^^  Where  independent  causes  of  action  were  joined,  a  dismissal  of  one 
does  not  abate  the  other,^^  but  where  a  person  has  brought  an  action  in  two  forms  on 
the  same  facts,  he  cannot,  after  a  voluntary  dismissal  of  one  action,  have  a  re- 
instatement of  the  other.^* 

Where  a  proceeding  for  a  money  judgment  is  joined  with  one  for  the  fore- 
closure of  a  lien,  on  the  sustaining  of  exceptions  to  such  portions  of  the  petition  as 
sought  to  foreclose  a  lien  on  land  conveyed  before  suit  and  on  land  not  leased  to 
plaintiff,  plaintiff  may  dismiss  his  claim  for  a  money  judgment  and  as  to  the  con- 
sideration of  a  sale  of  the  land  to  others  without  dismissing  his  action  for  fore- 
closure.*'' 

AAHiere  there  is  a  dismissal  as  to  one  defendant,  the  court  is  without  juris- 
diction to  reinstate  the  case  as  to  him  or  render  judgment  against  him.*" 

Where  plaintiff'  is  erroneously  allowed  to  dismiss  as  of  right  after  demurrer 
and  submission  of  the  issues  to  the  court,  a  judgment  rendered  on  the  order  is 
nevertheless  valid  until  vacated,  and  such  judgment  cannot  be  granted  by  the 
court  against  objections  so  as  to  make  it  a  dismissal  on  the  merits.*^ 

As  between  co-defendants. — Where  defendants  are  jointly  liable,  a  discontinu- 
ance as  to  one  is  fatal  as  to  the  rest.**  An  objection  by  one  defendant  to  a  dismissal 
as  against  the  other,  places  the  plaintiff  on  his  guard,  and  if  he  fail  to  amend  his 
declaration  charging  joint  liability,  he  cannot  have  judgment  against  the  remaining 
defendant  alone.*® 

In  an  action  against  the  principals  and  sureties  on  the  bond  of  a  partner- 
ship if  the  bond  binds  the  sureties  to  liability  for  the  members  of  the  partnership  as 
individuals,  a  dismissal  as  to  one  of  the  principals  not  served  who  is  insolvent  is 
permissible,  and  a  judgment  may  be  rendered  against  the  other  and  against 
the  surety.^"  Where  a  note  is  executed  jointly,  a  petition  thereon  which  is  dis- 
continued as  to  one  maker  should  not  be  dismissed  as  to  the  other.^^ 

Reinstatement  or  setting  aside  nonsuit. — The  ex  parte  entry  of  an  order  of  dis- 
missal on  complainant's  motion  if  irregular  on  account  of  lack  of  notice  must  be 
questioned  by  motion  to  set  aside.^*  A  petition  for  new  trial  on  the  ground  of 
newly-discovered  evidence  which  has  been  dismissed  voluntarily  will  not  be  reinstat- 
ed on  the  ground  of  surprise,  after  an  adverse  decision  on  a  motion  for  rehearing  in 
the  supreme  court  which  plaintiff  had  supposed  would  be  favorable  to  him.^' 


22.  Such  a  discontinuance  Is  not  a  re- 
traxit— Wilson  V.   Smith.  117   Fed.   707. 

23.  Dismissal  of  an  action  to  recover  dam- 
ages for  trespass  on  mining  property,  does 
not  abate  a  statutory  action  under  Code  Civ. 
Proc.  §  13,  to  quiet  title  and  for  an  injunc- 
tion against  trespass — Montana  Ore  Purchas- 
ing Co.  V.  Boston  &  M.  Consol.  Copper  & 
Silver   Ulin.   Co.,    27    Mont.    288,    70   Pac.    1114. 

24.  Action  brought  in  assumpsit  and  in 
equity,  with  a  dismissal  as  to  the  action 
in  assumpsit — Jones  v.  Kennedy  (Miss.)  33 
So.    287. 

25.  Industrial  Lumber  Co.  v.  Texas  Pine 
Lands   Ass'n    (Tex.    Civ.   App.)    72    S.   W.    875. 

2C.  On  dismissal  of  the  wife  of  one  also 
a  defendant  in  an  action  for  conversion  on 
the  ground  that  the  evidence  does  not  show 
possession  in  her,  she  cannot  be  reinstated 
on  a  subsequent  disclosure  that  she  has 
possession — Blumenthal  v.  Lewy,  82  App. 
Div.    (N.    Y.)    535. 

27.     Plaintiff   is  entitled  to   the  benefit   of 


due  process  of  law  which  proceeds  on  in- 
quiry of  the  matter  it  adjudicates — Day  v. 
Mountain   (Minn.)    94  N.  W.   887. 

28.  Discontinuance  as  to  one  director  in 
an  action  to  enforce  limited  liability  of  di- 
rectors of  an  insolvent  corporation — Bauer 
v.  Parker,  82  App.  Div.   (N.  Y.)    289. 

29.  Harris  v.  Humphrey  &  Co.,  103  111. 
App.    45. 

30.  Rev.  St.  1895,  §§  1256,  1257,  1259— Scalfl 
V.   Graves    (Tex.   Civ.   App.)    74    S.   W.    795. 

31.  It  was  held  in  this  case  that  where 
a  note  was  signed  on  its  face  by  one  person 
and  on  the  back  by  another,  it  was  a  joint 
civil  undertaking,  and  on  discontinuance  as 
to  the  party  signing  on  the  face,  the  petition 
should  not  be  dismissed  on  the  ground  that 
the  one  signing  on  the  back  was  a  surety 
only — Brooks  v.  Thrasher,  116  Ga.   62. 

32.  Kellogg  Switchboard  &  Supply  Co.  v. 
Glenn   Tel.    Co.,    121    Fed.    174. 

33.  Tighe  V.  Winger  <Neb.)  95  N.  W. 
Ifi-TS 


940 


DISMISSAL  AND  NONSUIT. 


§2 


An  unauthorized  dismissal  by  an  attorney  may  be  set  aside  especially  where 
pending  the  action  the  cause  has  become  barred  by  limitations  and  the  fact  that 
another  attorney  who  represented  plaintiff  asked  that  the  order  be  made  without 
prejudice  will  not  be  necessarily  construed  as  showing  plaintiff's  assent,  an  ex- 
ception having  been  taken  and  allowed."  A  discontinuance  without  costs  made  un- 
der a  written  stipulation  signed  by  defendant  will  not  be  set  aside  in  the  absence 
of  fraud  for  the  mere  purpose  of  protecting  the  rights  of  defendant's  attorney 
who  was  to  receive,  as  fees  for  defending  the  action,  the  costs  taxable  to  defendant 
in  case  he  was  successful,^'' 

§  2.  Involuntary  dismissal  or  nonsuit.  Time  for  Dismissal. — Where  the 
court  has  submitted  the  case  to  the  jury  and  received  a  general  verdict  for  plaintiff, 
it  cannot  dismiss  on  the  merits,^^  but  a  motion  for  nonsuit  in  the  nature  of  a 
motion  to  dismiss  for  want  of  jurisdiction  may  be  made  after  verdict,^''  and  where 
the  case  should  never  have  been  submitted  to  the  jury  because  of  failure  of  plain- 
tiff's evidence,  the  complaint  may  be  dismissed  notwithstanding  the  previous  sub- 
mission to  the  jury.^*  Dismissal  after  death  of  a  party  is  unwarranted  before 
expiration  of  the  time  in  which  an  action  may  be  revived  by  his  personal  repre- 
sentative.^® 

Questions  which  may  he  presented. — The  question  of  jurisdiction  may  be 
raised  bv  motion  to  dismiss.*"  A  motion  for  nonsuit  is  not  a  proper  way  in  which 
to  test  the  validity  of  a  statute  or  the  legal  sufficiency  of  compliance  therewith.*^ 
On  an  exception  raising  the  statute  of  limitations  if  all  of  plaintiff's  complaint  is 
barred  save  a  sum  too  small  to  bring  it  within  the  jurisdiction  of  the  court,  the 
petition  is  properly  dismissed.*^ 

Defect  in  process. — Dismissal  may  be  had  on  failure  to  return  summons, 
though  an  affidavit  of  service  on  one  of  defendants  and  a  copy  of  the  summons  is 
filed,*^  and  though  the  summons  is  for  a  time  lost.** 

Defect  in  parties. — Where,  in  an  action  on  tort,  a  defendant  is  joined  who 
was  not  connected  with  the  tort,  a  nonsuit  may  be  entered  as  to  him  or  a  verdict 
directed  for  him  and  the  case  submitted  as  to  the  other  defendants.*^  On  motion  by 
a  sole  defendant  served,  for  a  dismissal  unless  the  other  defendants  are  brought  in, 
he  should  not  be  allowed  costs  to  indemnify  him  against  expense  of  answering.*® 

Defect  in  pleadings.'^'' — ^Defendant  is  entitled  to  consideration  of  a  motion 


34.  Steinkamp  v.  Gaebel  (Neb.)  95  N.  W. 
684. 

35.  Garvin  v.  Martin   (Wis.)   93  N.  W.  470. 

3B.  Though  Code  Civ.  Proc.  §  1187.  pro- 
vides for  opening  a  motion  to  non-suit,  the 
Jury  may  be  required  to  assess  damages 
or  any  question  of  fact  raised  by  the  plead- 
ings to  be  submitted  to  it — Levy  v.  Grove 
Mills  Paper  Co.,  80  App.  Div.   (N.  Y.)   384. 

37.  Parker  v.  Southern  Exp.  Co.,  132  N. 
C.    128. 

38.  Failure  of  plaintiff  in  an  action  for 
death  by  negligence  to  offer  any  evidence 
of  negligence  of  defendant — Glennon  v.  Erie 
R.  Co.,  86  App.  Div.  (N.  Y.)   397. 

39.  See  article  Abatement  and  Revival. 
Code.   §   38.     Dismissal   of  suit   on   death   of 

party  interposing  claim  to  property  levied 
on  under  execution — Bauer  v.  Word,  135  Ala. 
430. 

40.  City  of  Windsor  v.  Cleveland,  C,  C. 
&  St.  L.  Ry.  Co..  105  111.  App.   46. 

41.  •Where  the  action  is  for  failure  of  a 
carrier  to  comply  with  an  application  to 
trace  freight,  it  cannot  be  urged  as  ground 
for  nonsuit  that  the  evidence  failed  to  show 


noncompliance  with  plaintiff's  application  by 
defendant  and  that  It  showed  that  the  dam- 
age was  due  to  plaintiff's  negligence — Sa- 
vannah. F.  &  W.  Ry.  Co.  V.  Elder  (Ga.)  43 
S.   E.    379. 

42.  Roller  v.  Zundelowltz  (Tex.  Civ.  App.) 
73   S.   W.   1070. 

43.  Code  Civ.  Proc.  §  582 — Grant  v.  Mc- 
Arthur.   137   Cal.   270,   70  Pac.   88. 

44.  Code  Civ.  Proc.  provides  that  if  a  pa- 
per is  lost,  the  court  may  authorize  the  use 
of  a  copy  in  place  of  the  original — Grant 
V.   McArthur,   137   Cal.    270,    70   Pac.   88. 

45.  Action  against  two  street  railway 
companies  and  a  construction  company  to 
recover  injuries  from  the  construction  and 
operation  of  a  street  railroad  in  which  it 
appeared  that  one  of  the  railway  companies 
having  leased  its  property  was  no  longer 
liable  for  negligent  operation — Minnich  v. 
Lancaster  &  L.  Elec.  Ry.  Co.,  203  Pa.  632. 

46.  Error  to  grant  $50.00  costs  in  addi- 
tion to  $10.00  motion  costs — Geoghegan  v. 
Luchow.   75  App.   Div.    (N.   Y.)    581. 

47.  Dismissal  of  a  bill  asking  reconvey- 
ance of  land  alleged  to  have  been  conveyed 


§  2 


DISMISSAL  ON  MERITS. 


941 


for  Judgment  on  the  pleadings  only  when  there  is  no  demurrer  or  reply  to  new  mat- 
ter stated  by  him  as  a  defense  or  counterclaim  ;**  an  insufficient  reply  is  not  ground.*^ 
A  judgment  of  dismissal  will  be  entered  where  the  pleadings  fail  to  show  a  right  of 
recovery  in  plaintiff/"  but  where  a  petition  contains  several  counts,  the  whole 
case  should  not  be  dismissed  on  the  ground  that  one  of  them  is  bad,^^  and  judgment 
on  the  pleadings  cannot  be  rendered  where  they  present  a  material  issue  of  fact.^^ 

A  successful  demurrer  to  a  supplemental  petition  setting  up  facts  estopping 
defendants  from  asserting  a  defense  does  not  authorize  a  dismissal,^^  nor  does 
a  demurrer  sustained  as  to  a  portion  of  the  claim.'* 

Where  plaintiffs  sue  in  an  individual  and  representative  capacity  on  successful 
exceptions  to  the  right  to  sue  as  representatives,  there  should  not  be  a  dismissal.^* 

A  stipulation  as  to  reference  reserving  a  right  to  move  to  dismiss  on  the 
ground  of  no  cause  of  action  does  not  save  a  right  to  seek  dismissal  on  the  ground 
of  variance  of  proof  from  the  pleadings.'* 

A  dismissal  for  an  inadvertent  failure  to  file  copies  of  instruments  forming 
the  basis  of  the  proceeding  should  be  set  aside,  where  the  substance  of  the  papers 
was  fully  set  out  in  the  petition,  and  a  copy  should  be  allowed  to  be  subsequently 
filed." 

Where  variance  between  pleading  and  proof  is  by  statute  made  immaterial 
unless  the  adverse  party  has  been  misled  to  his  prejudice,  a  dismissal  will  not  be 
granted  in  the  absence  of  prejudice  on  a  showing  that  labor  and  material  was 
furnished  on  an  express  contract  where  the  complaint  is  on  a  quantum  meruit.'* 

Amendable  defects. — Dismissal  should  not  be  granted  for  insufficiency  of  an 
affidavit  in  forcible  entry  and  detainer,  the  affidavit  being  amendable."  Filing 
an  unverified  complaint  is  not  ground  for  dismissal."* 

Dismissal  on  merits.^'^ — Every  material  fact  in  issue  must  be  found  for  plaintiff 
on  dismissing  complaint  at  the  close  of  the  opening  address,*^  and  judgment  on 
the  opening  statement  should  be  denied  umless  it  admits  facts  precluding  recovery.*^ 
Though  the  court  is  authorized  in  his  discretion  to  set  aside  a  verdict  it  should 
not  enter  a  judgment  dismissing  the  complaint  on  the  merits.**  Under  the  New 
York  municipal  court  act  a  judgment  of  dismissal  on  the  merits  can  be  granted  only 
where  at  the  close  of  the  whole  case  the  court  is  of  the  opinion  that  the  plaintiff  is 


In  trust,  will  be  sustained,  where  the  an- 
swer denies  the  trust  and  a  finding  is  made 
below  on  sufficient  evidence  that  no  trust 
was  contemplated — Jackson  v.  Thomson,  203 
Pa.    622. 

48.  Alaska  Code,  §  69;  31  St.  343,  c.  786— 
Walton  V.  "Wild  Goose  Mln.  &  Trading  Co. 
(C.  C.  A.)    123  Fed.   209. 

49.  Walton  v.  Wild  Goose  Min.  &  Trad- 
ing Co.    (C.   C.   A.)    123   Fed.   209. 

50.  Original  action  in  the  supreme  court 
— Territory  v.   Jacobs    (Okl.)    70   Pac.   197. 

51.  Woodbridge  v.  Drought  (Ga.)  45  S. 
E.   266. 

52.  Swinehart  v.  Pocatello  Meat  &  Prod- 
uce  Co.    (Idaho)    70   Pac.   1054. 

53.  Allegation  of  sale  through  an  agent 
and  supplemental  petition  setting  up  an  es- 
toppel of  defendant  to  deny  an  agency — 
Owens  V.  Hughes  (Tex.  Civ.  App.)  71  S.  W. 
783. 

54.  Ingham  v.  Ryan  (Colo.  App.)  71  Pac. 
899. 

55.  Trespass  to  try  title  by  plaintiffs  In 
their  own  right  and  as  foreign  executors — 
Hayden  v.  Kirby  (Tex.  Civ.  App.)  72  S.  W. 
198. 


56.  Lake  v.  Anderson,  76  App.  Div.  (N.  T.) 

189. 

57.  Failure  to  file  certified  copy  of  the 
proceedings  as  required  by  Ky.  St.,  §  2838 
with  a  petition  to  enforce  liens  on  said 
apportionment  warrants — Kremer  v.  Leath- 
ers,   24   Ky.    L.    R.    1149,   70   S.   W.    843. 

58.  Code  Civ.  Proc.  §  2943 — Lundine  v. 
Callaghan,    82   App.    Div.    (N.    Y.)    621. 

59.  Mansfield's  Dig.  §§  5102,  5083,  2285 
(Ind.  Ter.  Ann.  St.  1899,  §§  3307,  3288,  2285) 
—Smith  V.   Bush    (Ind.  T.)    69  S.  W.   934. 

60.  Expressly  so  provided  by  Mansfield's 
Dig.  §  5086;  Ind.  T.  Ann.  St.  1899.  §  3291,  if 
the  complaint  is  verified  on  or  before  calling 
of  the  action  for  trial — Hargrove  v.  Chero- 
kee Nation    (Ind.  T.)    69   S.   W.   823. 

61.  Nonsuit  held  properly  granted  on  the 
ground  that  in  an  action  on  an  insurance 
policy  plaintiff's  interest  was  not  properly 
stated  in  the  policy — Alberts  v.  Insurance  Co. 
(Ga.)    45   S.    E.    282. 

62.  Hoffman  House  v.  Foote,  172  N.  T. 
348. 

63.  Coffeyville  Min.  &  Gas  Co.  v.  Carter, 
65   Kan.    5G5,    70   Pac.   635. 

64.  Rosenstock  v.  Dessar,  85  App.  Div. 
(N.   Y.)    501. 


942 


DISMISSAL  AND  NONSUIT. 


§  2 


not  entitled. to  recover  as  a  matter  of  law  or  where  the  court  stistains  a  demurrer 
and  no  leave  to  plead  over  is  granted.®^  The  order  of  dismissal  must  state  the 
ground  on  which  the  issues  have  been  dismissed.**  In  trover,  a  nonsuit  should  not 
be  granted  on  failure  of  demand  before  suit  where  such  demand  is  not  necessary." 
Plaintiff  in  an  action  for  damages  cannot  be  nonsuited  for  the  reason  that  he  has 
failed  to  repay  or  tender  money  paid  him  for  a  release.** 

Failure  of  proof. ^^ — While  the  rule  of  law  is  the  same,  the  practical  restric- 
tions upon  the  court  are  even  greater  in  the  case  of  a  motion  for  nonsuit  than 
they  are  upon  the  motion  to  direct  a  verdict  after  all  the  evidence  is  in.'^°  The 
overruling  of  a  demurrer  to  the  evidence  or  a  motion  for  a  nonsuit  is  not  an 
adjudication  as  to  the  sufficiency  of  the  pleadings  to  authorize  a  recovery.''^  In 
Georgia  a  nonsuit  corresponds  to  a  demurrer  to  the  evidence  and  the  only  question 
is  as  to  the  sufficiency  of  the  evidence  without  regard  to  defects  in  the  pleadings." 
The  common-law  practice  does  not  there  prevail  which  authorizes  a  nonsuit  when 
it  is  clear  that  the  action  in  point  of  law  is  not  maintainable,  though  the  objection 
appear  on  the  face  of  the  record  and  may  be  taken  advantage  of  by  motion  in  arrest 
of  judgment.'^' 

On  motion  for  nonsuit,  plaintiff's  evidence  is  to  be  taken  as  true,  and  all  the 
evidence  should  be  construed  most  favorably  toward  him.''*  The  case  should  not 
be  taken  from  the  jury  when  recovery  may  be  had  on  any  view  reasonably  drawn 
from  the  facts  which  the  evidence  tends  to  establish,^'  or  where  there  is  more  than 
a  scintilla  of  evidence  tending  to  prove  plaintiff's  contention.'^*  If  made  after  de- 
fendant has  introduced  evidence,  his  evidence  is  not  to  be  considered.''^  Nonsuit 
should  not  be  ordered  where  plaintiff  states  a  good  case  in  his  declaration  and  sus- 
tains it  by  his  evidence.''*  Plaintiff  can  be  nonsuited  when  the  allegations  are  sus- 
tained by  the  testimony  only  in  cases  where  the  complaint  is  subject  to  a  de- 
murrer.''® 

A  nonsuit  should  be  granted  on  failure  of  evidence  to  support  plaintiff's  alle- 
gations,^" but  a  motion  to  dismiss  for  failure  to  establish  one  branch  of  the  com- 


es. Laws  1902.  p.  1561.  c.  680,  §  249.  Dis- 
missal should  be  without  prejudice  on  fail- 
ure of  plaintiff  in  an  action  to  recover  com- 
missions for  sale  to  prove  that  he  was  the 
procuring-  cause  of  the  sale — Wakefield  v. 
Street,  83  N.  Y.  Supp.   765. 

6C.  Under  Code  Civ.  Proc.  §  1022.  an  or- 
der is  insufficient  which  states  the  ground 
to  be  that  plaintiff  has  failed  to  establish 
a  cause  of  action  and  that  he  is  not  entitled 
to  the  relief  demanded  in  the  complaint — 
Gein  v.  Little.  86  App.  Div.  (N.  Y.)   503. 

C7.  Civ.  Code,  1895,  §  3887.  Trover  by 
a  vendor  against  a  vendee  based  on  a  con- 
ditional bill  of  sale  reserving  title  until 
pavment  of  the  purchase  money — Scarboro 
V.  "Goethe    (Ga.)    45    S.    E.    413. 

68.  Austin  v.  Piedmont  Mfg.  Co.  (S.  C.) 
45   S.  E.  135. 

69.  See  for  other  procedure  for  taking 
case  from  jury  Directing  Verdict  and  De- 
murrer to  Evidence. 

70.  In  an  action  based  on  negligence,  if 
any  reasonable  probability  of  negligence  may 
account  for  the  event  by  inference  from 
the  evidence  within  plaintiff's  control,  de- 
fendant should  be  put  to  its  proofs  to  sup- 
ply the  facts  as  to  its  own  conduct  and 
plaintiff  should  not  be  nonsuited  merely  be- 
cause he  has  not  fully  established  those 
acts  of  which  he  can  acquire  knowledge 
only    from    the    defendant    or    those    in    its 


interest — Hupfer    v.    National   Distilling   Co. 
(Wis.)    96  N.  W.  809. 
71,  73,  73.     Kelly  V.  Strouse.   116  Ga.   872. 

74.  House  V.  Seaboard  Air  Line  R.  Co., 
131  N.  C.  103;  Hopkins  v.  Norfolk  &  S.  R. 
Co.,  131  N.  C.  463.  Evidence  held  not  to 
authorize  a  nonsuit  In  an  action  against  a 
distillery  company  by  one  scalded  by  the 
bursting  of  a  vat  of  slops. — Hupfer  v.  Na- 
tional Distilling  Co.  (Wis.)  96  N.  W.  809. 
Nonsuit  held  properly  granted  where  the 
evidence  of  plaintiff  showed  that  by  ordi- 
nary care  he  could  have  avoided  the  injuries 
for  which  he  sued — Barfield  v.  Southern  Ry. 
Co.   (Ga.)    45  S.  E.   282. 

75.  Cain  v.  Gold  Mountain  Min.  Co.,  27 
Mont.    529,    71    Pac.    1004. 

76.  Butts  V.  Atlantic  &  N.  C.  R.  Co.  (N. 
C.)    45   S.   E.   472. 

77.  Though  acts  1897,  c.  109  provides  for 
motion  for  non-suit  at  the  end  of  plaintiff's 
evidence — Brown  v.  Atlantic  &  C.  Air  Line 
R.  Co.,   131  N.   C.   455. 

78.  Beck  Duplicator  Co.  v.  Pulghum  (Ga.) 
45  S.  E.  675:  Southern  Bauxite  Mineral  & 
Mfg.   Co.   V.   Fuller,   116   Ga.   695. 

79.  Austin  v.  Piedmont  Mfg.  Co.  (S.  C.) 
45   S.   E.   135. 

80.  Failure  to  prove  an  agreement  to 
pay  for  work  and  labor  sued  for — Briggs  v. 
Collins,  27  Mont.  405,  71  Pac.  307.  Failure 
to  establish   an  essential   part  of  a  contract 


§  2 


FAILURE  TO  PROSECUTE. 


943" 


plaint  should  be  denied  where  the  complaint  states  another  cause  of  action  on 
which  plaintiff  may  recover  without  amendment.*^  Where  a  special  plea  of  former 
adjudication  is  made  in  connection  with  denial  of  all  material  terms  of  the  com- 
plaint and  a  finding  is  made  for  defendant  on  the  issue  of  former  adjudication  on 
its  submission  to  the  court  after  a  jury  is  impaneled,  the  complaint  is  properly 
dismissed  if  no  evidence  has  been  offered  in  support  of  the  controverted  allegations.^- 

Wliere  negligence  established  is  not  as  to  a  matter  alleged  as  negligence,  a  non- 
suit is  properly  granted,^^  but  where  negligence  and  willful  negligence  are  both 
alleged,  nonsuit  cannot  be  granted  on  failure  of  evidence  as  to  willful  negligence 
merely,^*  and  the  same  is  true  of  failure  to  prove  an  intention  of  wrong  alleged 
in  connection  with  negligence.^"^  A  motion  for  a  nonsuit  based  on  an  assumed  state 
of  facts  which  may  be  properly  determined  by  the  jury  only  should  be  denied,®* 

Failure  of  prosecution.^'' — A  complaint  is  properly  dismissed  by  default  on 
failure  of  plaintiff's  counsel  to  take  up  the  case  when  called  for  trial,®*  and  a 
nonsuit  may  be  properly  entered  on  a  statement  of  no  evidence,  where  a  postpone- 
ment has  been  denied  a  representative  of  an  attorney  in  the  case.®^ 

A  statute  authorizing  dismissal  of  actions  not  brought  to  trial  is  not  intended 
to  authorize  dismissal  of  a  litigant  who  though  ready  to  proceed  seasonably  has 
consented  to  delay  in  order  to  accommodate  opposing  counsel,^"  and  while  dismissal 
of  a  cause  for  want  of  prosecution  is  within  the  discretion  of  the  court,  an  ex- 
cusable neglect  to  present  facts  to  the  court  on  the  hearing  of  the  motion  controls 
the  discretion,^^ 

If  plaintiff  refuses  to  prosecute,  the  suit  should  be  dismissed  for  want  of 


— United  States   Fidelity  &  Guaranty  Co.  v. 
DonneUy,    68   N.  J.   Law,   654. 

81.  Action  for  damages  from  failure  to 
keep  a  cold  storage  warehouse  at  the  prop- 
er temperature,  and  failure  to  prove  an 
agreement  in  such  regard  also  alleged — Rett- 
ni»r         "  -   -  -  «.  ^_ 

352, 


82. 
380. 
83 


Minnesota  Cold-Storage  Co.,   88  Minn. 
Rensberger  v.  Button   (Colo.)   71  Pac. 


„„.  Action  for  death  of  a  railroad  em- 
ploye, negligence  in  handling  and  overload- 
ing a  freight  train  and  carelessly  managing 
the  trains  and  in  shifting  the  meeting  point 
of  trains,  and  proof  that  plaintiff's  intestate 
was  killed  by  a  train  going  in  an  opposite 
direction  from  one  which  he  was  sent  back 
to  signal — Land  v.  Southern  Ry.  (S.  C.)  45 
S.   E.    203. 

84.  22  St.  at  Large,  p.  693,  provides  that 
there  need  not  be  an  election  between  two 
or  more  acts  of  negligence  alleged  to  have 
caused  the  injury  sued  on — Griffin  v.  South- 
ern Ry.,  65  S.  C.  122. 

85.  Young  v.  Western  Union  Tel.  Co..  63 
S.  C.  93. 

86.  Based  on  assumption  of  risk  by  serv- 
ant suing  for  negligent  injury — Wood  v.  Vic- 
tor Mfg.    Co.    (S.    C.)    45   S.   E.   81. 

87.  A  case  which  has  been  at  issue  for 
nearly  13  years  without  plaintiffs  bringing 
It  on  for  trial,  the  reason  for  delay  being 
that  the  parties  became  reconciled  and  nei- 
ther party  wished  to  prosecute  the  action, 
may   be    dismissed    for    want    of   prosecution 

Rosenheim   v.   Rosenfield,   83  App.   Div.    (N. 

T.)  640.  Code  Civ.  Proc.  §  822,  Gen.  Rule 
of  Practice  No.  36 — Zafarano  v.  Baird,  80 
App    Dlv.  (N.  Y.)   144.     A  dismissal  for  neg- 


lect is  authorized  where  there  Is  an  unex- 
plained delay  for  five  years  in  the  taking 
of  steps  to  bring  the  issue  to  a  hearing. 
Where  nothing  is  done  for  seven  years  after 
flling  a  demurrer  to  the  complaint,  defend- 
ant is  entitled  to  a  dismissal  on  motion  by 
plaintiff  to  strike  the  demurrer,  though  he 
was  by  statute  permitted  to  bring  the  case 
to  hearing — Langford  v.  Murphey,  30  Wash. 
499,   70  Pac.   1112. 

88.  McEwen  v.  Dimond,  81  App.  Div.  (N. 
Y.)  626.  If  a  plaintiff's  attorney,  five  days 
before  the  opening  of  the  session  has  notice 
that  his  case  is  the  only  cause  on  the  trial 
calendar  and  will  be  called,  the  case  la 
properly  dismissed,  though  the  attorney  is 
engaged  in  another  court,  on  failure  to  pros- 
ecute— Spokane  &  V.  Gold  &  Copper  Co.  v. 
Colfelt,    30   Wash.    628,    71   Pac.    196. 

89.  Representative  stated  that  the  attor- 
ney was  actually  engaged  in  another  case, 
but  postponement  was  denied  on  the  ground 
that  the  attorney  had  had  ample  opportunity 
to  prepare  for  trial,  and  his  client  was  en- 
deavoring to  delay  trial — Appeal  of  White, 
75    Conn.    314. 

90.  Facts  held  to  show  an  abuse  of  the 
trial  court's  discretion  in  refusing  to  set 
aside  a  dismissal  ordered  under  Rev.  St. 
1898,  §  2611a — Hine  v.  Grant  (Wis.)  96  N. 
W.    796. 

91.  A  dismissal  for  the  want  of  prose- 
cution may  be  vacated,  where  it  has  been 
granted  after  substitution  of  attorneys  by 
plaintiff,  and  plaintiff's  new  attorney  alleges 
a  failure  to  find  the  former  attorney  and 
consequent  Inability  to  procure  an  affidavit 
contradicting  the  allegations  In  support  of 
the  motion — Moore  v.  Thompson,  138  Cal. 
23,    70    Pac.    930. 


944 


DISMISSAL  AND  NONSUIT. 


prosecution  and  a  Jury  should  not  be  empaneled  over  plaintiff's  objection  and  judg- 
ment entered  for  defendant.^^ 

Waiver  of  right  to  dismiss.— Neglect  to  make  a  motion  for  dismissal  on  the 
overruling  of  a  motion  for  a  cost  bond  waives  a  statutory  right  to  dismissal  of  an 
action  in  which  such  bond  is  required,  at  any  time  before  judgment.^^  Though 
plaintiff  has  performed  an  act  which  entitles  defendant  to  a  discontinuance,  defend- 
ant waives  his  right  by  failing  to  avail  himself  of  it  promptly  and  by  appearing 
and  consenting  to  continuances.^* 

Effect.— A  judgment  of  dismissal  entered  by  the  court  on  the  merits  is  a  bar 
to  further  proceedings  on  the  facts  disclosed  in  the  pleadings.^''  ^  Dismissal  as  to 
one  not  a  necessary  or  proper  party  who  has  been  on  his  o^vn  motion  granted  leave 
to  come  in  as  a  defendant  does  not  affect  complainant's  right  as  against  original 
defendants.®^ 

Opening  and  setting  aside. — The  denial  of  a  motion  to  open  a  nonsuit  is  or- 
dinarily discretionary,  and  is  not  governed  by  statutes  providing  for  the  setting 
aside  of  default  judgments.'*^  The  motion  should  usually  be  made  during  the  ses- 
sion at  which  judgment  was  rendered,^^  and  may  be  required  sooner.^® 

There  must  be  notice  to  defendant  before  a  cause  dismissed  for  want  of  prosecu- 
tion may  be  reinstated  at  an  adjourned  term.^ 

On  motion  to  set  aside  a  dismissal,  a  complaint  duly  verified,  which  states  a 
cause  of  action,  is  a  sufficient  showing  of  merits.^  Motion  to  reinstate  may  be 
based  on  facts  outside  the  record.^ 

A  motion  to  set  aside  an  order  of  dismissal  and  judgment  suspends  the  judg- 
ment and  prevents  the  court  from  being  ousted  of  jurisdiction  by  the  running  of 
time  from  the  entry  of  judgment.* 

The  presumption  is  that  the  trial  court's  discretion  as  to  dismissal  for  want  of 
appearance  to  go  on  with  the  trial  has  not  been  abused."  Absence  of  a  witness  will 
not  warrant  the  setting  aside  of  a  dismissal  for  failure  of  prosecution,  if  there  is 
no  showing  made  of  diligence  in  procuring  his  attendance  or  statement  of  what 
his  evidence  was  to  be." 

A  judgment  denying  a  motion  to  reinstate  is  conclusive  of  all  matters  pleaded 
or  which  might  have  been  pleaded  including  fraud  or  mistake  in  the  dismissal.^ 

On  reversal  of  an  order  of  reinstatement,  proceedings  to  renew  must  be  brought 
within  six  months  from  the  order  of  dismissal  and  no^  within  six  months  from  the 
judgment  reversing  the  order  of  reinstatement.* 


92.  Anderson  v.  Broward  (Fla.)  34  So. 
897. 

93.  Fidelity  &  Casualty  Co.  v.  Brown  (Ind. 
T.)   69  S.  W.  915. 

94.  Hayes  v.  Dunn,  136  Ala.  528. 

9.5.  Day  V.  Mountain  (Minn.)  94  N.  W. 
887. 

96.  Citizens'  Sav.  &  Loan  Ass'n  v.  Bellville 
&  S.  I.  R.  Co.  (C.  C.  A.)  117  Fed.  109. 

97.  Gen.  St.  1888.  §  1126,  does  not  apply 
to  a  non-suit  for  failure  of  prosecution — 
Appeal   of  "White,   75   Conn.    314. 

98.  Delay  of  six  weeks  until  another 
judge  is  holding  a  session  of  court,  author- 
izes a  refusal — Appeal  of  White,  75  Conn. 
314. 

99.  Motion  not  made  In  two  days  after 
judgment  stricken  when  defendant  was  in 
court  and  had  made  no  objection  to  the  dis- 
missal   as    to    him    on    plaintiff's    motion — 


Calvert.  W.  &  B.  V.  Ry.  Co.  v.  Drisklll  (Tex. 
Civ.  App.)   71  S.  W.  997. 

1.  Laun  V.  Ponath,  91  Mo.  App.  271. 

2.  Hine  v.  Grant   (Wis.)    96  N.  W.  796. 

3.  Crawford  v.  Watkins  (Ga.)  45  S.  B. 
482. 

4.  Kremer  v.  Leathers,  24  Ky.  L.  R.  1149, 
70    S.   W.    843. 

5.  Evidence  held  insufficient  to  show  an 
abuse  of  discretion  in  dismissing  on  failure 
of  party  or  attorney  to  be  present  when 
case  was  called  for  trial — Hall  v.  City  of 
Austin    (Tex.    Civ.   App.)    73    S.   W.    32. 

6.  Spokane  &  V.  Gold  &  Copper  Co.  v. 
Colfelt,  30  Wash.   628,   71   Pac.  196. 

7.  Crawford  v.  Watkins  (Ga.)  45  S.  B. 
482. 

8.  Civ.  Code,  1895,  §§  3786,  3787 — Craw* 
ford  v.  Watkins   (Ga.)    45  S.  E.  482. 


DIVORCE. 


945 


DISORDERLY  CONDXTCT. 

A  statute  prohibiting  use  of  profane  words  in  the  presence  of  a  female  is 
not  violated  by  a  profane  written  communication.®  Vagrants  are  punishable  aa 
disorderly  persons  at  common  law.^°  Making  political  speeches  in  the  street  to  the 
obstruction  of  traffic  is  a  breach  of  the  peace.^^  An  ordinance  declaring  palmists, 
etc.,  disorderly  persons,  is  valid.^^  An  indictment  for  using  profane  language  in  the 
presence  of  a  "woman"  is  sufficient,^^ 

DISORDERLY  HOUSES. 

If  disorderly  persons  frequent  a  house  and  unfit  and  unbecoming  acts  are 
there  committed,  it  is  immaterial  that  the  peace  of  the  neighborhood  was  not 
disturbed.^*  The  penalty  in  Minnesota  is  fixed  by  Gen.  St.  1894,  §  6297,  not  by  acts 
1897,  c.  108." 

DISTURBANCE  OF  PUBLIC  ASSEMBLAGE. 

Injury  to  property,  while  the  owner  was  attending  a  religious  meeting,  not 
known  to  him  until  afterward,  is  not  a  disturbance  of  the  meeting.^*  That  one 
rose  in  a  meeting  and  endeavored  to  answer  criticisms  by  the  clergyman  does  not 
show  that  he  "willfully"  disturbed  the  meeting.^'' 

DIVORCE.  18 


§  1.     Jurisdiction  and  Domicile  of  Parties. 

§  2.     Causes    for   Divorce. 

§  3.     Defenses   and   E^xcuses. 

§  4.     Practice  and  Procedure. — In  General; 

Ne    Exeat;     Pleading;     Evidence    and    Proof; 
Reference;     Verdicts     and     Findings;     New 


Trial;  Decree,    Vacation    and    Modification; 

Costs;  Review. 

§  5.  Custody  and  Support  of  Children. 

§  6.  Adjustment  of  Property  Rights. 

§  7.  EfiEeet  of  Divorce. 

§  8.  Foreign    Divorce. 


§  1.  Jurisdiction  and  domicile  of  parties. — The  question  of  residence  is 
jurisdictional.^^  Eesidence  once  attained  is  not  lost  by  temporary  absences.^**  The 
appearance  of  a  nonresident  defendant  will  not  give  the  court  jurisdiction  of  a 
suit  instituted  by  one  who  is  without  a  bona  fide  domicile  in  the  state.^^  If  a 
residence  is  bona  fide  it  makes  no  difference  that  plaintiff's  motive  was  to  procure 
a  divorce.^^ 


9.  Williams   v.    State.    117   Ga.    13. 

10.  In  re  Stegenga   (Mich.)    94  N.  W.   385. 

11.  People  V.   Wallace,    85   App.    Div.    (N. 

T.)    170. 

12.  State  V.  Kenilworth  (N.  J.  Law)  54 
Atl.    244. 

13.  Jackson  v.  State    (Ala.)    34  So.   611. 

14.  State  V.  Ireton  (Minn.)  94  N.  W.  1078. 
Evidence  held  sufficient  to  show  keeping  of 
disorderly  house  where  liquors  were  sold 
on  Sunday  and  disorderly  persons  gathered 
— State  V.  Babcock  (R.  I.)  55  Atl.  685.  A 
residence  is  not  rendered  a  disorderly  house 
by  occasional  acts  of  fornication  therein 
by  the  owner — State  v.  Irvin,   117  Iowa,   469. 

15.  State   V.   Grosofski    (Minn.)    94    N.    W. 


Cox  V.    State,    136   Ala.    94. 

State  V.   Dahlstrom    (Minn.)    95  N.   W. 


1077. 
16. 
17. 

580. 

18.  Alimony,  see  Alimony.  Separation 
and  separate  maintenance  without  change  of 
status  see  Husband  and  Wife.  Annulment 
of  marriage  see  Marriage. 

19.  Branch  v.  Branch,  30  Colo.  499,  71 
Pac.    632. 

Curr.   Law — 60. 


20.  A  wife's  residence  for  the  purpose  of 
an  action  for  divorce  is  not  lost  by  her 
going  into  another  state  to  work  in  order 
to  support  herself — Boreing  v.  Boreing,  24 
Ky.  L.  R.  1288,  71  S.  W.  431.  A  residence 
for  one  year  prior  to  the  commencement  of 
a  suit  is  sufficiently  established  by  evidence 
that  plaintiff  came  to  the  state  about  two 
years  before  the  commencement  of  the  suit 
and  spent  much  of  the  time  until  its  com- 
mencement therein,  and  though  absent  from 
the  state  for  some  time  the  absence  was 
to  seek  employment,  and  her  child  remained 
in  the  state  during  this  absence,  and  it  was 
the  constant  intention  of  the  plaintiff  to 
make  her  home  within  the  state — Summer- 
ville  V.  Summerville,  31  Wash.  411,  72  Pac. 
84. 

21.  Andrews  v.  Andrews,  188  U.  S.  14,  47 
Law.   Ed.    366. 

32.  Wallace  v.  Wallace  (N.  J.  Law)  54 
Atl.   433. 

Presumption  against  bona  fide  residence 
arises  from  undue  haste  in  suing  after  tak- 
ing up  new  domicile — Hunter  v.  Hunter,  64 
N.  J.  Eq.   277. 


946 


DIVORCE. 


§   2 


§  2.  Causes  for  divorce. — Ante-marital  unchastity  is  not  of  itself  a  ground 
in  Georgia.-^ 

Cruelty  must  consist  in  such  treatment  as  will  meet  the  terms  of  the  local 
statutes  making  it  a  ground.^*  The  habitual  use  of  rough  language  as  constituting 
extreme  cruelty  depends  on  the  character  and  station  in  life  of  the  parties.^^ 

Indignities. — It  is  an  indignity  to  the  wife  rendering  her  "condition  intolera- 
ble" for  the  husband  to  drink  to  excess  and  frequent  evil  resorts/®  or  to  impute 
adultery  to  her  and  withdraw  all  marital  relations.'-*^ 

Desertion. — A  refusal  to  accompany  a  husband  to  a  new  home  established  by 
him  amounts  to  desertion.^*  In  California,  a  refusal  to  consent  to  matrimonial 
intercourse  when  physical  conditions  do  not  warrant  the  refusal  and  there  is 
no  just  cause  therefor  amounts  to  desertion.^®  The  desertion  must  not  be  the 
result  of  mutual  agreement/"  and  where  willful  and  continued  for  the  statutory 
time,  it  is  not  necessary  that  it  should  be  malicious.^^  So  long  as  a  husband 
performs  his  duties  to  his  wife,  she  is  required  to  live  with  him  and  her  separation 
from  him  is  not  justified  either  by  coolness  of  his  manner  or  want  of  expressions 
of  affection,^^  unless  accompanied  with  rudeness  and  negligence  showing  a  loss 
of  affection.^^ 

The  continued  separation  of  complainant  prosecuting  a  suit  for  divorce  from 
bed  and  board  for  extreme  cruelty  of  defendant  cannot,  during  the  pendency  of  the 
suit,  be  held  to  be  an  obstinate  desertion  and  the  time  of  the  pendency  of  the  suit 
cannot  be  included  in  the  period  of  desertion  in  a  suit  for  divorce  on  the  ground 
of  desertion.^*  In  some  states,  it  is  the  duty  of  a  husband  to  seek  his  wife  and  en- 
deavor to  induce  her  to  return  before  suit  on  the  ground  of  desertion  whether  the 
desertion  was  caused  by  his  own  misconduct^^  or  the  wife's  willfulness.^®  The 
offer  must  be  sincere^''  and  without  unreasonable  delay,^*    The  wife  who  expects  to 


23.  statute  names  "fraud"  and  "preg- 
nancy at  time  of  marriage  unknown  to  hus- 
band"— Stanley   v.    Stanley,    115    Ga.    990. 

24.  In  Kentucky  it  suffices  that  the  hus- 
band abuses  and  beats  his  wife  and  his 
temper  is  such  that  she  will  probably  suffer 
great  bodily  harm  by  remaining  with  him 
— Hewlett  V.  Howlett,  24  Ky.  L.  R.  974,  70 
S.  W.  404.  Likewise  where  he  uses  unfeel- 
ing language  to  her,  admits  misconduct  with 
other  women  and  attempts  to  poison  the 
minds  of  his  children  against  their  mother, 
thus  indicating  settled  aversion — Zumbiel  v. 
Zumbiel,  24  Ky.  L.  R.  590,  69  S.  W.  708. 
"Repeated"  cruelty  is  not  shown  by  a  single 
act  of  physical  violence — Werres  v.  Werres, 
102   111.   App.    360. 

25.  Shuster   v,    Shuster    (Neb.)    92    N.   W. 


203. 
26. 
27. 

131   N 
28. 
29. 
30 


McCann   v.   McCann,    91   Mo.   App.    1. 

Besides  striking  her — Green  v.  Green, 

C.   533. 

Schuman  v.  Schuman,   93  Mo.  App.   99. 

Fink  V.  Fink.  137  Cal.  559,  70  Pac.  628. 
ou.  The  evidence  warrants  an  inference 
that*  separation  was  by  mutual  consent  and 
therefore  insufficient  to  justify  a  decree 
where  plaintiff  testified  that  she  lived  pleas- 
antly with  defendant  until  a  few  weeks  be- 
fore the  alleged  desertion,  when  she  dis- 
covered her  husband  in  a  falsehood  and  a 
quarrel  ensued  which  led  to  the  separation, 
and  she  stated  that  she  did  not  care  much 
about  defendant's  leaving  her.  and  made  no 
inquiry  for  him,  but  that  she  would  have 
lived  with  him  had  he  stayed  at  home — 
W^lthen  V.  Walthen  (Mo.  App.)  73  S.  W. 
736. 


31.  McBride  v.  McBride   (Tenn.)    69  S.  W. 

781. 

32.  Schuman  v.  Schuman,  93  Mo.  App.  99. 

33.  A  wife  was  justified  in  leaving  her 
husband  though  he  had  used  no  physical 
violence  to  her  and  had  been  liberal  with 
her  in  money  matters,  where  his  conduct 
had  become  so  rude  and  negligent  as  to 
show  a  loss  of  affection  and  he  was  habitu- 
ally rude  to  her  lady  visitors  and  often 
left  his  home  for  long  visits  without  inform- 
ing  her  of  his  proposed  departure — Boreing 
v.    Boreing.    24   Ky.   L.    R.    1288,    71    S.   V\''.    431. 

34.  Weigel  V.  "Weigel,  63  N.  J.  Eq.  677; 
Hunter  v.  Hunter,   64   N.   J.  Eq.   277. 

35.  On  a  separation  caused  by  the  drunk- 
enness and  cruelty  of  the  husband  and  his 
fail.ure  to  reform  within  two  years  and  seek 
his  wife  a  divorce  is  properly  granted  for 
desertion — Jerolaman  v.  Jerolaman  (N.  J. 
Eq.)    54  Atl.   166. 

36.  Though  the  desertion  on  the  part  of 
the  w^ife  was  wrongful,  yet  it  is  the  duty 
of  the  husband  to  seek  by  proper  steps  to 
cause  her  to  return — Wood  v.  Wood,  63  N. 
J.   Eq.    688. 

37.  A  husband  demanding  a  separation 
will  not  be  entitled  to  a  divorce  on  the 
ground  that  his  offer  of  reconciliation  was 
refused  where  the  letter  asking  such  return 
was  written  in  cold  and  formal  terms  with 
no  promise  of  affection  or  indication  of  re- 
gret for  causing  the  separation — Woolard  v. 
Woolard,   18  App.  D.  C.  326. 

38.  Where  a  husband  deserted  his  wife 
against  her  consent  he  cannot  18  years  after 
cure  the  desertion  by  an  offer  to  return  so 
as   to    entitle    him    to   divorce    for    desertion 


§  3 


DEFENSES  AND  EXCUSES. 


947 


take  advantage  of  the  rule  requiring  a  husband  to  seek  his  wife  and  endeavor  to 
induce  her  to  return  must  so  behave  herself  as  not  to  give  the  husband  any  cause 
to  suspect  her  chastity.^"  A  husband  marrying  to  escape  conviction  for  seduction 
is  not  entitled  to  a  divorce  for  abandonment  because  she  refused  to  live  with  him 
where  she  shortly  afterwards  retracted  and  offered  to  live  with  him  as  a  wife.*"  Fail- 
ure to  provide  must,  in  Colorado,  continue  for  a  year.*^ 

§  3.  Defenses  and  excicses. — A  divorce  will  not  be  granted  where  both  par- 
ties are  at  fault.*^  The  general  principle  which  governs  in  a  case  where  one  party 
recriminates  is  that  the  recrimination  must  allege  a  cause  which  the  law  declares 
sufficient  for  divorce.*' 

Subsequent  cohabitation  with  knowledge  condones  the  offense.**  A  delay  of  25 
years  after  discovery  of  a  wife's  infidelity  to  sue  for  divorce  on  that  ground  is 
fatal  in  the  absence  of  some  satisfactory  excuse.*"*  A  wife  is  not  prevented  from  re- 
lying on  cruelty  of  a  husband  as  ground  for  divorce  by  reason  of  her  continuing  to 
live  with  him  thereafter  in  expectation  of  proper  treatment  in  which  she  is  dis- 
appointed.*® A  husband  may  not  excuse  his  cruel  treatment  on  the  ground  that 
he  was  intoxicated  at  the  time.*^  Whether  the  improper  language  of  the  husband 
was  provoked  by  the  acts  of  the  wife,  unless  the  language  was  disproportionate 
to  the  occasion,  is  a  question  for  the  trial  court  and  will  not  be  reviewed  on 
appeal.**  A  husband  cannot  obtain  a  decree  for  adultery  of  the  wife  where  he 
turns  her  out  of  the  house  into  the  streets  of  a  large  city  with  but  a  trifling  sum 
to  provide  for  her  wants  and  the  alleged  act,  if  committed  at  all,  was  committed 
thereafter.*^  A  husband  is  not  prevented  from  defending  on  the  ground  of  cruelty 
by  reason  of  a  denial  of  a  divorce  to  him  on  the  ground  of  the  wife's  adultery 
connived  at  by  him,  his  conduct  since  that  time  having  been  exemplary.^** 

Where  the  suit  is  based  on  allegations  which  the  party  personally  knew  to  be 
false,  it  is  a  fraud  on  the  court,  and  the  pendency  of  the  action  is  no  defense  to  a 
subsequent  suit  for  desertion  brought  by  the  other  spouse,'*  and  this  is  the  case 


on  the  wife's  refusal  of  his  offer  to  return 
— McMullin  V.  McMuUin  (Cal.)  71  Pac.  108. 
Civ.  Code  Cal.  §  102,  allows  return  within 
one  year  to  cure  a  desertion. 

39.  Hall    V.    Hall    (N.    J.    Eq.)    53    Atl.    45.'S 

40.  Alderson  v.  Alderson's  Guardian,  24 
Ky.   L.   R.    595,   69   S.   W.    700. 

41.  A  decree  for  failure  to  make  reason- 
able provisions  for  the  support  of  a  family, 
is  properly  refused,  where  the  evidence 
shows  that  ample  provisions  had  been  made 
until  less  than  a  year  before  the  commence- 
ment of  the  action  and  that  the  parties  were 
dependent  on  their  own  labor  for  support — 
Branch  v.   Branch,   30   Colo.   499,   71   Pac.   632. 

43.  Anderberg  v.  Anderberg  (Iowa)  91  N. 
W.  1071.  A  divorce  for  misconduct  of  a 
wife  will  be  refused  where  the  petitioner 
is  shown  to  be  guilty  of  a  like  offense — 
Knott  v.  Knott  (N.  J.  Eq.)  54  Atl.  559.  A 
divorce  is  properly  denied  on  the  ground  of 
cruelty  in  the  use  of  profane  language  where 
the  testimony  shows  that  both  parties  were 
guilty  of  using  such  language — Shuster  v. 
Shuster    (Neb.)    92   N.   W.    203. 

43.  In  North  Carolina  a  wife  sued  for 
divorce  on  the  ground  of  adultery  may  not 
recriminate  on  ground  of  two  acts  of  adul- 
tery of  the  husband,  the  laws  requiring  In 
case  of  a  husband  that  he  should  live  in 
adultery  while  it  gives  the  husband  a  di- 
vorce on  the  ground  of  adultery  of  the  wife 
—House  V.  House.  131  N.  C.  140. 


44.  A  husband  living  with  his  wife  after 
full  knowledge  that  her  representations  as 
to  her  reputation  before  marriage  were  false, 
cannot  urge  such  representations  as  a  ground 
for  divorce — Stanley  v.  Stanley,  115  Ga.  990. 
Where  the  husband  resumed  marital  rela- 
tions after  separation  and  suspected  unfaith- 
fulness of  his  wife  but  had  no  proof  there- 
of until  after  a  later  separation,  the  fact 
of  his  living  with  her  after  the  first  separa- 
tion did  not  amount  to  such  a  condonation 
as  deprived  him  of  the  right  to  a  divorce 
on  the  ground  that  her  acts  in  planning 
to  elope  with  another  constituted  indigni- 
ties to  him  rendering  his  condition  Intoler- 
able— Connelly  v.  Connelly  (Mo.  App.)  71 
S.  W.  1111. 

45.  Poverty  as  an  excuse  insufficient  where 
complainant  had  means  to  make  a  trip  to 
Europe  likewise  the  fact  that  she  had  re- 
sided abroad — Barker  v.  Barker,  63  N.  J. 
Eq.    593. 

46.  Creyts  v.  Creyts  (Mich.)   94  N.  W.  383. 

47.  Harl  V.  Harl,  24  Ky.  L.  R,  2163,  73  S. 
W.  756. 

48.  Shuster  v.  Shuster  (Neb.)  92  N.  W. 
203. 

49.  Heidrich  v.  Heidrlch,  22  Pa.  Super.  Ct 
72. 

50.  Torlotting  v.  Torlotting,  97  Mo.  Api>. 
183. 

51.  52.    Welgel  V.  Welgel,  63  N.  J.  Eq.  177. 


948 


DIVORCE. 


§4 


where  the  stdt  is'  begun  by  advice  of  counsel,  unless  it  is  shown  that  all  the  facts 
within  the  knowledge  of  the  party  were  truly  stated  to  the  counsel."^ 

§  4.  Practice  and  procedure. — Practice  in  general  should  be  as  in  other  cases, 
unless  there  is  a  different  provision  by  statute.^^  In  Washington,  the  code  allows 
complaint  to  be  filed  in  the  county  in  which  plaintiff  has  lived  for  one  year." 
Under  the  divorce  act  giving  defendant  thirty  days  to  appear  and  answer,  a  sum- 
mons which  gives  him  only  twenty  days  is  insufficient  to  authorize  the  court  to 
proceed  to  judgment.^^ 

Ne  exeat. — Departure  of  a  husband  from  the  state  without  procuring  the  dis- 
charge of  a  writ  of  ne  exeat  and  without  leave  of  court  is  a  breach  of  the  bond, 
whether  the  departure  occurs  before  or  after  judgment.^^  The  action  on  a  ne  exeat 
bond  is  properly  brought  for  the  use  and  benefit  of  the  wife."  An  allegation  that 
after  it  was  given  the  husband  left  the  state  and  had  not  since  returned  and 
that  the  wife  recovered  judgment  against  him  in  a  certain  sum  shows  sufficiently 
as  against  a  demurrer  that  he  left  after  judgment  was  rendered.^^ 

Pleading. — An  allegation  that  plaintiff  was  a  bona  fide  resident  of  the  state 
constitutes  a  sufficient  allegation  of  residence  to  confer  jurisdiction  and  to  render 
the  complaint  amendable  to  conform  to  the  proof  as  to  residence.^*  Adultery, 
drunkenness,  or  indignities  may  be  proved  under  allegations  of  numerous  acts  of 
drunkenness  or  adultery,  and  it  is  not  necessary  to  plead  them  in  the  words  of 
the  statute.^''  Where  specific  acts  of  adultery  are  charged,  evidence  that  defendant 
committed  adultery  with  other  women  than  paramour  named  is  not  admissible." 
Defendant  is  entitled,  in  New  York,  to  a  bill  of  particulars  showing  time,  place,  and 
circumstances  of  each  act  of  adultery  charged.^^  A  demurrer  to  a  petition  on  the 
ground  that  it  shows  condonation  of  the  offense  will  not  be  sustained  unless  aver- 
ments of  the  petition  plainly  show  conduct  of  the  wife  amounting  to  condonation.*^* 

In  Maryland,  a  supplemental  bill  may  not  be  filed  setting  up  as  a  ground  for 
relief  actual  adultery  occurring  after  the  institution  of  the  suit  with  persons  not 
specified  in  the  original  bill."*  Under  a  prayer  for  general  'relief,  a  divorce  from 
bed  and  board  may  be  granted  where  the  facts  shown  warrant  such  relief  though  the 
complaint  does  not  show  the  existence  of  the  statutory  grounds  relied  on.^^  Veri- 
fication in  accordance  with  the  code  is  mandatory.*'^  The  Pennsylvania  common 
pleas  courts  may  require  service  of  copies  of  pleadings  to  be  made  on  parties  with- 
in the  county  by  the  sheriff  though  there  is  nothing  in  the  divorce  act  requiring 
service  by  the  sheriff.®'' 

Evidence  and  proof. — Under  a  code  provision  making  a  husband  a  competent 
witness  to  disprove  the  allegations  of  adultery,  he  should  be  allowed  to  deny  the 
charge  specifically.®*  In  Kentucky,  a  wife  is  not  competent  to  testify  in  an  action 
brought  by  her  for  divorce  on  the  ground  of  separation  for  five  years.®*  In  In- 
diana, the  two  witnesses  offering  to  prove  plaintiff's  status  in  the  county  and  state 
must  be  resident  freeholders  and  householders  of  the  state.''** 


.53.  Reed  v.  Reed  (Mo.  App.)  70  S.  W. 
505. 

54.  2  Ball.  Ann.  Codes  &  St.  §  5718 — Bach- 
elor V.  Bachelor,   30  Wash.   639,   71   Pac.   193. 

55.  Mottschall  V.  Mottschall  (Colo.)  72 
Pac.    1053. 

56.  57.  58.  Marselis  v.  People  (Colo.  App.) 
71  Pac.   429. 

5».  Johnson  v.  Johnson,  30  Colo.  402,  70 
Pac.    692. 

60.  McCann  v.  McCann,  91  Mo.  App.  1. 

61.  Goldie  v.  Goldie,   39  Misc.   (N.  T.)    389. 

62.  Hunter  v.  Hunter,  38  Misc.  (N.  Y.) 
672;  Kirkland  v.  Kirkland,  39  Misc.  (N.  Y.) 
423. 


63.  Diedrich  v.  Diedrich   (Neb.)    94  N.  W. 
536. 

64.  Schwab  V.   Schwab,    96   Md.    592. 

65.  Zumbiel  v.  Zumbiel,  24  Ky.  L.  R.  590, 
69   S.  W.   708. 

66.  Code  of  N.  C.  §  1287 — Hopkins  v.  Hop- 
kins,   132   N.    C.    22. 

67.  Timney  v.   Timney,   21   Pa.   Super.   Ct. 
538. 

68. 
60. 


Goldie  V.  Goldie,  39  Misc.   (N.  Y.)  389. 
Boreing  v.  Boreing,  24  Ky.  L>.  R.  1288, 


71    S.   W.    431. 

70.     Burns'    Rev.    St.    1901,   §   1043 — Becker 
V.   Becker   (Ind.)    66  N.  E.   1010. 


§  4 


PRACTICE  AND  PROCEDURE. 


949 


The  motives  of  the  complainant  in  effecting  a  change  of  residence  may  be 
inquired  into.^^  Under  a  statute  requiring  proof  of  good  conduct  of  plaintiff  before 
granting  him  a  divorce,  a  decree  is  properly  refused  where  the  evidence  shows  that 
plaintiff  deserted  his  family  shortly  after  the  birth  of  a  child  and  remained  in 
concealment  until  his  whereabouts  were  disclosed  by  the  commencement  of  the 
euitJ^  Circumstances  relevant  to  a  charge  of  adultery  are  shown  below.^^  A 
husband  seeking  divorce  on  the  ground  of  desertion  has  the  burden  of  proving  a 
willful  and  obstinate  desertion  and  must  show  affirmatively  that  she  left  of  her 
own  choice  against  his  will  and  remained  away  when  it  was  her  duty  to  return.'^* 
Corroborative  testimony  to  essential  matters  must  be  taken  to  support  a  decree.'^'^ 
Where  evidence  is  equally  balanced  and  is  as  capable  of  one  construction  as  the 
other,  the  court  will  adopt  the  construction  in  favor  of  innocence.'^®  Holdings  as  to 
sufficiency  of  evidence  are  grouped  in  the  footnote.''^ 

Reference. — A  master  in  an  undefended  suit  for  divorce  may  examine  the 
witness  by  leading  questions,  where  he  seems  inclined  to  evade  disclosure,  but  this 
does  not  allow  his  counsel  to  examine  by  use  of  leading  questions^* 


71.  Hunter  v.  Hunter,  64  N.  J.  Eq.  277. 
Want  of  bona  fide  residence  may  be  inferred 
from  haste  in  suing-  upon  a  cause  wliich 
originated  in  a  state  where  such  cause  is 
not  recognized — Id.  "Where  the  evidence 
shows  that  plaintiff  acquired  her  residence 
in  the  state  with  intent  to  remain  therein, 
the  fact  that  she  states  that  lier  object  in 
coming  to  the  state  was  to  obtain  a  divorce 
will  not  bar  her  right  to  obtain  such  di- 
vorce, though  her  evidence  will  be  consid- 
ered in  determining  the  bona  fides  of  a  res- 
idence— Wallace  v.  Wallace  (N.  J.  Law)  54 
Atl.    433. 

72.  Coe   V.    Coe    (Mo.   App.)    72   S.   W.    707. 

73.  Where  one  testifies  to  seeing  defend- 
ant in  a  compromising  position  it  may  be 
shown  that  the  act  could  not  have  been  seen 
from  the  place  testified  to — Goldie  v.  Goldie, 
39  Misc.  (N.  Y.)  389.  A  companion  of  de- 
fendant at  the  house  of  prostitution  may 
testify  whether  he  had  seen  defendant  have 
sexual  intercourse  with  any  woman  on  such 
occasion — Id.  In  an  action  for  the  w^ife's 
adultery  a  letter  written  to  her  by  her  al- 
leged paramour  shortly  before  her  marriage 
is  admissible  in  connection  with  evidence  of 
similar  acts  during  marriage  to  prove  the 
illicit  intercourse  charged — Bickley  v.  Bick- 
ley,  136  Ala.  548. 

74.  Wood  V.  Wood,   63  N.  J.  Eq.   688. 

75.  Proof  of  plaintiff's  status  by  witness- 
es, only  one  of  whom  possesses  the  qualifi- 
cations, is  insufficient  and  confers  no  juris- 
diction on  the  court — Cummins  v.  Cummins, 
30  Ind.  App.  671.  The  Illinois  laws  require 
the  cause  of  divorce  in  case  of  default  to 
be  proved  by  more  than  one  witness  (Rev. 
St.  c.  40,  §  8) — Kline  v.  Kline.  104  111.  App. 
274. 

76.  Poillon  V.  Poillon,  78  App.  Div.  (N. 
T.)    127. 

77.  The  motive  cannot  be  established  by- 
the  petitioner's  ow^n  testimony  as  to  the  rea- 
son for  making  a  change  of  residence  and 
w^here  the  petitioner's  testimony  on  that 
point  is  practically  unsupported  and  there 
is  no  cross-examination  and  some  of  the 
answers  Indicate  a  mental  reservation,  it 
will    be    held    that    there    was    not    such    a 


residence  acquired  as  would  give  the  court 
jurisdiction — Hunter  v.  Hunter,  64  N.  J.  Eq. 
277.      The     statutory     dcgrrees     o£     cruelty 

Bryan  v.  Bryan,  137  Cal.  XIX,  70  Pac.  304; 
McKee  v.  McKee  (Neb.)  96  N.  W.  489;  Creyts 
V.  Creyts  (Mich.)  94  N.  W.  383;  Harl  v. 
Harl,  24  Ky.  L.  R.  2163,  73  S.  W.  756.  Ex- 
treme cruelty  of  wife — Torlotting  v.  Tor- 
lotting,  97  Mo.  App.  183.  A  divorce  on  the 
ground  of  extreme  cruelty  is  properly  de- 
nied a  husband  where  the  evidence  of  a 
child  in  the  father's  favor  showed  prejudice 
and  feeling  against  the  mother  and  the  evi- 
dence of  neighbors  showed  that  defendant 
had  been  a  faithful  wife,  cleanly  in  her 
habits  and  there  was  strong  evidence  that 
plaintiff  himself  had  been  unfaithful  and 
that  her  refusal  to  admit  him  to  the  house 
occurred  after  he  had  filed  a  bill  for  di- 
vorce against  her  which  was  afterwards  dis- 
continued— Parkinson  v.  Parkinson  (Mich.) 
96  N.  W.  497. 

Adultery — Gibson  v.  Gibson,  18  App.  D.  C. 
72;  Fischer  v.  Fischer  (Mich.)  91  N.  W.  633; 
White  V.  White,  64  N.  J.  Bq.  84.  Evidence 
insufficient  to  sustain  charge  of  adultery — 
Post  V.  Post  (N.  J.  Eq.)  52  Atl.  1102;  Goldie 
V.  Goldie,  39  Misc.  (N.  Y.)  389;  Poillon  v. 
Poillon,  78  App.  Div.  (N.  Y.)  127;  Burch  v. 
Burch,  80  App.  Div.  (N.  Y.)   55. 

Causes  of  separation  or  desei^tion:  Evi- 
dence insufficient  to  show  that  the  husband 
was  authorized  in  refusing  longer  to  live 
with  his  wife  because  of  her  misconduct — 
Wood  V.  Wood,  63  N.  J.  Eq.  688.  Evidence 
held  not  to  satisfactorily  show  that  defend- 
ant's leaving  plaintiff  was  without  plain- 
tiff's fault — Hale  v.  Hale,  24  Ky.  L.  R.  2203, 
73  S.  W.  784.  Evidence  sufficient  to  war- 
rant a  decree  for  desertion — Hall  v.  Hall  (N. 
J.  Eq.)  53  Atl.  455.  Evidence  insufficient  to 
show  willful  separation — Wood  v.  Wood,  63 
N.  J.  Eq.  688.  Evidence  insufficient  to  sup- 
port a  finding  that  the  separation  between 
plaintiff  and  defendant  was  voluntary  and 
without  defendant's  consent — McMullin  v. 
McMullin  (Cal.)  71  Pac.  108.  Evidence  of 
constructive  desertion  of  a  wife  by  her  hus- 
band held  insufficient  to  authorize  a  de- 
cree— Seeley   v.   Seeley,    64   N.   J.   Eq.   1, 

78.     Seeley  v.   Seeley,    64  N.   J.   Eq.   1. 


I 


950 


DIVORCE. 


§   + 


In  New  York,  the  court  of  special  term  will  not  deny  judgment  because  of 
errors  of  the  referee  in  the  reception  and  exclusion  of  evidence,  the  code  not  allow- 
ing a  judgment  to  be  taken  of  course  on  a  referee's  report  and  requiring  the  tes- 
timony and  other  proceedings  to  be  certified  to  the  court  by  the  referee  with  Ms 
report  and  judgment  rendered  by  the  courts® 

Verdicts  and  findings.— A  finding  that  plaintiff  has  been  guilty  of  willful  de- 
pertion'  is  a  conclusion  of  law  and  not  a  finding  of  fact.*"  Where  there  is  no  issue 
as  to  the  date  of  a  marriage,  findings  are  unnecessary  and  an  inconsistency  on  that 
point  is  harmless.*^  Consent  to  a  verdict  by  eleven  jurors  is  valid  where  the  ver- 
dict is  for  defendant,  though  a  code  provision  provides  that  no  judgment  in  divorce 
shaU  be  given  in  favor  of  plaintiff  until  facts  have  been  found  by  the  jury  and  under 
this  rule  the  verdict  would  have  been  invalid  if  for  plaintiff.*^ 

New  trial. — In  North  Carolina,  a  new  trial  may  be  granted  on  the  issue  of 
adultery  by  plaintiff  without  granting  it  on  the  issue  of  desertion  by  defendant.®* 

Decree,  vacation,  and  modification}* — Under  the  New  York  provision  that 
final  judgment  in  divorce  shall  be  made  three  months  after  the  entry  of  the  inter- 
locutory judgment,  the  date  of  the  entry  and  not  of  the  filing  of  the  referee's  report 
is  the  day  from  which  the  time  is  to  be  reckoned,®^  and  the  interlocutory  judgment 
must  be  filed  with  the  county  clerk  who  is  a  clerk  of  the  supreme  court  and  not 
with  the  clerk  of  a  particular  division  of  the  supreme  court.*®  A  decree  divorcing 
the  husband  "from  his  wife"  is  valid  though  the  name  of  the  wife  is  incorrectly 
given  in  the  decree,  as  the  inaccurate  name  may  be  rejected  as  surplusage.*^ 

A  decree  will  not  be  vacated  where  party  was  personally  served  and  might  have 
appealed,**  or  where  he  has  unreasonably  delayed  in  seeking  to  vacate  or  set  it 
aside.**  A  statute  allowing  a  certain  time  to  open  a  decree  made  on  publication 
does  not  apply  where  the  party  obtaining  the  divorce  is  dead  at  the  time  the  appli- 
cation to  open  the  decree  is  made.*°  Defects  or  irregularities  in  procuring  published 
service  must  be  such  as  to  vitiate  the  jurisdiction  on  which  the  decree  rests.*^  Ap- 
plication to  vacate  a  decree  must  be  made  in  time  and  present  a  strong  case  if 
plaintiff  has  since  died.®^    When  there  are  no  property  rights  or  anything  but  the 


79.  Party  relegated  to  appeal  to  obtain 
new  trial — Goldie  v.  Goldie,  39  Misc.  (N.  Y.) 
389 

80.  Fink  v.  Fink,  137  Cal.  559,  70  Pac. 
628.  A  denial  of  a  divorce  on  a  finding 
that  extreme  cruelty  had  been  proved  but 
that  defendant  had  refused  matrimonial  in- 
tercourse without  finding-  that  there  "was  "no 
just  cause  for  such  refusal"  as  required  by 
the  code  is  insufficient  to  support  the  con- 
clusion and  on  appeal  the  court  could  not 
say  that  the  finding  as  to  cruelty  was  a 
finding    of   cause    for   plaintiff's   conduct — Id. 

81.  Bryan  v.  Bryan,  137  Cal.  XIX,  70 
Pac.    304. 

82.  83.     Hall   v.   Hall,    131   N.   C.   185. 

84.  Evidence  of  fraud  and  duress  suffi- 
cient to  sustain  judgment  setting  aside  de- 
cree of  divorce — Humphrey  v.  Humphrey 
(Neb.)    91   N.   W.   856. 

85.  Gibson  v.  Gibson,  40  Misc.  (N.  T.) 
103. 

86.  Code  Civ.  Proc.  N.  Y.  §  1774 — Roth- 
stein   V.    Rothstein,    40   Misc.    (N.   Y.)    101. 

87.  Howton  v.  Gilpin,  24  Kv.  L.  R.  630. 
69   S.   "W.    766. 

88.  A  defendant  in  a  divorce  suit  served 
with  citation  which  -was  explained  to  him 
on  the  original  petition  and  the  amended  pe- 
tition did  not  set  up  a  new  cause  of  action, 
and    who    knew    of    the    decree    twenty    days 


after  Its  rendition  and  paid  the  costs,  can- 
not maintain  the  suit  to  set  aside  the  de- 
cree for  fraud,  his  remedy  was  by  appeal — 
Richards  v.  Minster  (Tex.  Civ.  App.)  70  S. 
W.   98. 

89.  In  this  case  the  parties  were  married 
in  1888  but  never  lived  together.  In  1892. 
a  divorce  was  obtained  of  which  the  defend- 
ant in  the  state  had  knowledge  the  same 
year  but  made  no  effort  to  have  the  decree 
set  aside  until  1899  and  after  the  marriage 
of  her  former  husband — Hurley  v.  Hurley, 
117    Iowa,    621. 

90.  Burns'  Rev.  St.  1901,  §  1042 — Day  v. 
Nottingham    (Ind.)    66   N.   E.    998. 

91.  The  fact  that  the  affidavit  for  service 
by  publication  was  made  by  the  wife  in- 
stead of  by  a  disinterested  person  as  re- 
quired by  one  statute  •will  not  suffice  to 
shoTT  more  than  mere  error  -where  a  real 
doubt    as    to    the    applicability    of    that   stat- 

,ute  exists  and  the  requirements  of  the  other 
one  are  met  and  the  notice  given  substan- 
tially complies  with  the  law.  (Burns'  Rev. 
St.  1901.  §  1048) — Day  v.  Nottingham  (Ind.) 
66   N.   E.   998. 

92.  Day  v.  Nottingham  (Ind.)  66  N.  E. 
998.  It  is  not  a  fraud  on  an  actual  non- 
resident to  state  falsely  but  unnecessarily  in 
the  affidavit  for  published  service  that  the 
place    of    residence    is    unknow^n,    especially 


CUSTODY  AND  SUPPORT  OF  CHILDREN. 


951 


right  to  a  divorce  to  be  relitigated,  tlie  death  of  one  party  extinguishes  all  right 
to  open  the  decree  ;^^  and  hence,  where  she  dies  leaving  considerable  property,  and 
it  is  not  shoT^Ti  that  she  was  possessed  of  the  property  at  the  time  she  obtained  the 
divorce,  the  court  will  hesitate  to  set  aside  the  decree  as  the  only  effect  of  such  an 
action  will  be  to  permit  defendant  to  inherit  the  property.  Defaulted  parties  must 
show  merits  and  good  cause.®* 

Costs. — In  granting  a  husband  a  divorce,  in  Kentucky,  the  costs  may  not  be 
adjudged  against  the  wife,  where  she  is  without  property  and  was  not  in  fault. 
The  husband  should  have  been  adjudged  to  pay  the  costs  of  the  wife  including 
reasonable  attorney's  fees.®^ 

Review. — The  reviewability  and  mode  of  review  of  divorce  decrees  or  of  the 
order  for  alimony  depends  on  the  local  statutes.®^  The  review  of  divorce  suits  on 
appeal  is  generally  governed  by  rules  applicable  to  equity  cases  and  extends  to 
law  and  facts  and  the  courts  are  not  bound  to  affirm  the  decrees  where  convinced  that 
they  are  against  the  preponderance  of  the  evidence.®^  On  appeal  the  court  will 
give  great  weight  to  the  judgment  of  the  lower  court  and  will  not  reverse  unless 
the  showing  of  error  is  clear,®^  and  this  is  especially  the  case  where  the  evidence  is 
contradictory.^''  Plaintiff  in  a  divorce  suit,  having  married  pending  the  appeal 
from  the  decree  granting  the  divorce,  will  not  be  heard  on  the  appeal  or  be  allowed 
to  have  the  case  remanded  for  a  new  trial,  the  case  being  reversed.^  A  marriage  by 
a  divorced  person  during  the  period  allowed  by  law  for  commencing  proceedings 
for  reversal  of  the  divorce  decree  is  invalid.^  Where  the  husband  to  whom  the  di- 
vorce was  granted  died  pending  an  appeal,  and  the  wife  asserts  no  right  to  have  the 
action  revived  to  determine  the  property  rights,  the  appeal  will  be  dismissed.' 

§  5.  Custody  and  support  of  children. — The  question  of  custody  should  be 
determined  by  the  welfare  of  the  child,*  and  should  be  given  to  a  deserting  wife  as 
against  a  husband  who  though  successful  married  her  only  to  escape  a  prosecution.^ 
The  custody  decree  allowing  parents  alternate  custody  should  be  so  framed  as  not 
to  interfere  with  the  child's  attendance  at  school.*  Support  of  children  should  be 
awarded  separately  from  alimony.''  A  husband  is  entitled  to  the  earnings  of  a 
child  and  bound  for  HI'S  support  though  the  custody  is  given  to  the  mother.* 


since  had  affiant  stated  the  truth  the  serv- 
ice   would    have    been    allowed — Id. 

93.  Day  v.  Nottingham  (Ind.)  66  N.  E. 
998. 

94.  A  judgment  by  default  will  not  be  set 
aside  where  defendant  admits  personal  serv- 
ice and  does  not  deny  the  charge  of  adul- 
tery except  by  stating  that  she  has  a  good 
and  valid  defense  and  does  not  present  an 
affidavit  of  merits  or  a  proposed  answer — 
Maguire  v.  Maguire,  75  App.  Div.  (N.  Y.) 
634.     See,    also,   Defaults. 

95.  Alderson  v.  Alderson's  Guardian,  24 
Ky.  L.  R.  595,  69  S.  W.  700.  See,  also,  Ali- 
mony ante,   p.    70   and   Costs  ante,   p.    808. 

96.  An  alimony  decree  in  Louisiana  before 
final  Judgment  is  appealable  regardless  of 
amount  (Const.  1898.  art.  85) — Dale  v.  Haner, 
109  La.  711.  An  order  modifying  a  decree 
by  reducing  alimony  appealable — Davis  v. 
Davis,  78  App.  Div.  (N.  Y.)  500.  A  judg- 
ment of  the  appellate  division  reversing  a 
decree  which  reduced  alimony  goes  to  the 
court  of  appeals — Livingston  v.  Livingston, 
173  N.  Y.  377.  In  Kentucky,  the  action  of 
the  chancellor  in  the  matter  of  adjudging 
the  costs  and  alimony,  and  maintenance  can 
be  reviewed,  though  the  judgment  for  di- 
vorce is  not  subject  to  review  on  appeal — 
Alderson   v.    Alderson's   Guardian,   24   Ky.   L. 


R.  595.  69  S.  W.  700.   See  Appeal  and  Review, 
ante,  p.  85. 

97.  Schuman  v.  Schuman,  93  Mo.  App.  99. 
The  appellate  courts  in  Missouri  may  review 
issues  of  fact  in  suits  for  divorce  as  in  suits 
of  equity — McCann  v.  McCann,  91  Mo.  App.  1. 

98.  Harl  v.  Harl,  24  Ky.  L.  R.  2163,  73 
S.  W.  756. 

99.  Donaldson  v.  Donaldson  (Mich.)  96 
N.  W.  448;  Coe  v.  Coe  (Mo.  App.)  72  S.  W. 
707. 

1.  Branch  v.  Branch,  30  Colo.  499,  71  Pac. 
632. 

2. 

3. 
1077. 

4.  Properly  given  to  a  father,  where  the 
wife's  circumstances  and  surroundings  make 
it  doubtful  whether  it  would  be  just  to  the 
child  to  give  her  its  custody  and  the  father 
is  giving  the  child  a  fair  opportunity  for 
education  in  a  home  surrounded  by  good 
conditions — Masterson  v.  Masterson,  24  Ky. 
L.    R.    1352,    71    S.    "W.    490. 

5.  Alderson  v.  Alderson's  Guardian,  24  Ky. 
L.   R.   595,   69   S.   W.   700. 

6.  Van  Buren  v.  Van  Buren,  75  App.  Div. 
615,    11    N.    Y.    Ann.    Cas.    381. 

7.  Rev.  St.  1899,  §  2926 — Meyers  v.  Meyers, 
91    Mo.    App.    151. 


Eaton  V.  Eaton   (Neb.)   92  N.  W.  995. 
Sperry  v.   Sperry   (Mo.  App.)    72  S.  W. 


952 


DIVORCE. 


§   6 


Courts  generally  have  tlie  right  to  modify  orders  providing  for  the  custody 
of  the  minor  children,®  and  the  change  in  custody  may  be  made  in  habeas  corpus 
proceedings.^"  Wliere  no  provision  is  made  for  the  custody  of  the  children  at  the 
time  the  decree  is  entered,  the  mother  may  at  a  subsequent  term  obtain  an  order 
compelling  the  father  to  provide  her  with  means  for  their  future  support."  In 
California,  the  supreme  court  has  no  power,  on  appeal  from  an  order  denying  a 
new  trial,  to  modify  the  provision  of  the  decree  providing  for  support  of  a  minor 
child  until  it  attains  its  majority.^^  A  decree  of  another  state  determining  the 
custody  of  the  child  in  a  suit  for  divorce  is  res  judicata  of  all  questions  as  to  the 
right  of  custody  which  could  have  been  before  the  court  at  the  time  of  the  entry  of 
the  decree,^^  but  the  decree  will  not  bar  a  subsequent  proceeding  in  the  domestic 
court  to  modify  it  on  proof  of  a  change  in  the  situation  of  the  parties.^*  Acts  allow- 
ing the  court  to  modify  maintenance  orders  entered  before  the  passage  of  such  acts 
are  unconstitutional.^^ 

§  6.  Adjustment  of  property  rights. — ^Where  the  court  finds  that  the  wife 
has  been  willfully  absent  for  more  than  three  years  and  that  the  husband  is  en- 
titled to  a  decree  on  that  ground,  the  court  can,  under  Eev.  St.,  Ohio,  1890,  §  5700. 
adjudge  to  her  such  share  of  the  husband's  property  as  it  deems  just,  which 
adjudication  is  binding  on  his  estate.^^  Under  a  code  providing  that  by  failure  to 
take  exceptions  to  a  misjoinder  of  causes  of  action,  it  shall  be  deemed  waived, 
property  rights  not  growing  out  of  the  marriage  relation  should  be  adjudicated  by 
an  action  of  divorce  though  not  properly  joined,  where  no  objection  was  made.^'^ 

§  7.  Effect  of  divorce. — A  husband  and  wife  after  divorce  become  tenants 
in  common  o.f  the  community  property  and  either  may  recover  the  entire  interest 
as  against  a  trespasser.^*  After  a  decree  of  divorce,  the  husband  has  no  right  of 
possession  in  the  wife's  separate  property  simply  because  such  property  was  oc- 
cupied as  a  homestead  while  the  marriage  relation  existed.^®  The  fact  that  a  wife 
obtains  a  divorce  for  desertion -of  husband  will  not  bar  proceedings  against  a  husband 
who  marries  to  escape  prosecution  for  bastardy  and  afterwards  maltreats  and  deserts 
her.20 

§  8.     Foreign  divorce. — The  full  faith  and  credit  clause  of  the  federal  con- 


8.  Meyers   v.   Meyers,    91    Mo.   App.    151. 

9.  Miles  V.  Miles,  65  Kan,  676,  70  Pac. 
631;  Everitt  v.  Everitt,  29  lad.  App.  508. 
Rev.  St.  Mo.  1899,  §  2926 — Meyers  v.  Meyers, 
91  Mo.  App.  151.  Tlie  court  has  power  on 
petition  to  provide  for  the  care  and  custody 
of  children  born  after  the  decree  of  divorce, 
where  the  decree  made  no  provisions  for 
such  support — Shannon  v.  Shannon,  97  Mo. 
App.    119. 

10.  The  duty  of  the  state,  as  parens  pa- 
triae, and  the  jurisdiction  of  a  habeas  corpus 
court  are  continuing  and  not  limited  to  the 
date  of  a  divorce — Williams  v.  Crosby  (Ga.) 
45  S.  E.  282.  A  decree  in  a  divorce  suit 
awarding  the  child  to  one  of  the  parents  is 
prima  facie  evidence  of  the  legal  right  to 
its  custody,  but  is  not  conclusive  in  habeas 
corpus  proceedings,  where  neglect  or  mis- 
treatment of  the  child  or  unfitness  of  the 
parent  arising  since  the  date  of  the  decree 
is   involved — Id. 

11.  Meyers  v.  Meyers,   91  Mo.   App.   151. 
Evidence   sufficient   on    petition    to    modify 

decree  as  to  support  and  maintenance  of 
child  to  sustain  legitimacy  of  child  whose 
paternity  was  denied  in  the  later  proceed- 
ing— Kraus  v.  Kraus  (Mo.  App.)  72  S.  W. 
130. 


12.  Bryan  v.  Bryan,  137  Cal.  XIX,  70  Pac. 
304. 

13.  Wilson  V.  Elliott  (Tex.)  73  S.  W.  946. 
A  foreign  divorce  decree  awarding  custody 
to  the  mother  may  not  be  contested  by  a 
father  where  he  has  recognized  its  validity 
by  contracting  a  second  marriage — State  v. 
King,    109   La.    161. 

14.  Wilson  V.  Elliott  (Tex.)  73  S.  W.  946. 
In  a  proceeding  to  modify  a  decree  of  an- 
other state  awarding  custody  of  a  child, 
evidence  of  a  change  in  the  situation  of  the 
parties  prior  to  the  rendition  of  the  foreign 
decree  is  admissible  in  corroboration  of  evi- 
dence showing  a  similar  situation  or  con- 
duct since  the  decree  relied  on  to  effect  a 
modification   thereof — Id. 

15.  Livingston  v.  Livingston,  173  N.  Y. 
377. 

16.  Hassaurek  v.  Hassaurek's  Adm'r 
(Ohio)    67   N.    E.    1066. 

17.  Code  Civ.  Proc.  Neb.  §  96 — Reed  v. 
Reed   (Neb.)   91  N.  W.  857. 

18.  Williamson  v.  Gore  (Tex.  Civ.  App.) 
73   S.   W.    563. 

19.  Cizek  V.  Cizek  (Neb.)   96  N.  W.  657. 

20.  State  v.  Lannoy,  30  Ind.  App.  335. 
Burns'   Rev.   St.   1901,   §   7298a   et  seq. 


b^ « 


DOCKETS,  CALENDARS  AND  TRIAL  LISTS. 


953 


ptitution  is  not  violated  by  the  refusal  of  a  state  to  recognize  a  decree  of  another 
state  by  one  who  temporarily  left  his  home  and  acquired  a  domicile  in  such  state 
to  obtain  a  divorce  for  an  act  which  occurred  in  the  former  state  which  was  not 
ground  for  a  divorce  there.^^  A  foreign  decree  to  a  husband  for  desertion  will  be 
regarded  as  a  nullity  in  the  forum  where  the  wife  at  the  time  had  obtained  a  decree 
from  bed  and  board  in  the  state  of  the  forum  for  his  desertion.^^  Where  the 
decree  of  a  state  rendered  after  personal  service  on  the  husband  and  notice  to 
appear  or  answer  requires  the  husband  to  pay  alimony  in  certain  amounts,  a  ju 
dicial  debt  of  record  is  established  which  may  be  enforced  in  the  courts  of  another 
state  within  the  full  faith  and  credit  clause  of  the  constitution.^*  One  obtaining  a 
decree  in  a  foreign  court  will  not  thereafter  be  heard  to  deny  its  validity  though 
in  states  not  recognizing  such  divorces.^* 

DOCKETS,  CALENDARS  AND  TRIAL  LISTS.  28 

Placing  cause  on  calendar. — A  notice  of  trial  is  essential,^*  even  where  the 
cause  is  transferred  from  another  calendar  for  which  it  has  been  noticed/^  but  it 
is  otherwise  where  both  parties  move  that  a  cause  be  restored  to  the  calendar.^® 
Notice  of  trial  cannot  be  given  while  a  stay  is  in  effect.^^ 

Passing  or  advancing  causes. — The  court  may  advance  a  preferred  cause 
though  the  attorney  has  failed  to  comply  with  the  statute  as  to  notice  of  motion 
for  advancement.*"  Motion  to  pass  a  cause  is  implied  consent  to  trial  on  the  day 
to  which  it  is  passed.*^ 

Transfer,  correction,  or  strihing  off. — A  motion  to  strike  off  must  be  promptly 
made.*^  Modification  of  an  order  setting  a  cause  for  trial  cannot  be  made  ex 
parte.**  The  clerk  cannot  of  his  own  motion  correct  his  error  in  placing  the  cause 
on  the  wrong  calendar.**  Wliere  the  complaint  does  not  authorize  equitable  re- 
lief, the  court  will  transfer  the  cause  to  the  law  calendar  e.  g.,  in  New  York  to 
trial  term  calendar.*" 


31.     Andrews    v.    Andrews,    188    U.    S.    14, 

47    Law.    Ed.    366. 

33.  In  re  Heins'  Estate,  22  Pa.  Super.  Ct. 
31. 

33.  Compare  title  Alimony  ante  as  to 
w^hen  alimony  award  becomes  enforceable 
as  money  judgment — Moore  v.  Moore,  40  Misc. 
(N.  Y.)   162. 

34.  In  re  Swale's  Estate,  172  N.  Y.  651; 
Starbuck  v.  Starbuck,   173  N.  Y.  503. 

35.  Calendars  and  dockets  of  appellate 
Courts,  see  Appeal  and  Error,  ante,  p.  139. 
Rules  for  determining  when  issues  are  join- 
ed, also  times  to  plead,  see  Pleading. 

2G.  The  court  has  no  power  to  relieve  a 
party  whose  notice  was  served  too  late — 
Roberts  v.  Schaf,  76  App.  Div.  (N.  Y.)  433. 
The  fact  that  the  attorney  had  instructed 
his  clerk  to  give  the  notice  is  no  excuse 
for  failure — Hix  v.  Edison  Blec.  Light  Co., 
78  App.  Div.  (N.  Y.)  384;  Loftus  v.  Oppen- 
heim,  84  App.  Div.  (N.  Y.)  464.  The  request 
to  put  the  case  on  the  calendar  required 
by  Pub.  Acts  1899,  c.  187,  p.  1102,  must  be 
made  within  thirty  days  after  the  return 
day  when  issue  is  joined  within  such  time 
— McKay  v.  Pair  Haven  &  W.  R.  Co.,  75 
Conn.  608. 

In  some  states  the  practice  is  for  the  clerk 
to  put  the  cause  on  the  docket  for  trial  in 
all  cases  wh^re  the  action  is  begun  in  time 
to  enable  all  issues  to  be  formed  by  the  first 
day   of  the  term.    It  is   then  announced    "for 


trial"    or  otherwise   by   the   attorneys   when 
the  docket  is  "called." 

27.  Poerschke  v.  Baldwin,  83  App.  Div. 
(N.   Y.)    284. 

28.  Darby  v.  Metropolitan  St.  Ry.  Co.,  78 
App.   Div.    (N.   Y.)    631. 

39.  Stay  under  Code  Civ.  Proc.  §  779,  for 
failure  to  pay  costs  of  motion — Roberts  v. 
Schaf,  76  App.  Div.    (N.   Y.)    433. 

30.  Code  Civ.  Proc.  §  792,  provides  that 
unless  notice  be  given  of  the  particular  day 
at  which  it  is  intended  to  move  the  cause 
for  trial  it  shall  not  be  moved  out  of  its 
order  except  by  special  order  of  court — 
City  of  New  York  v.  Shack,  81  App.  Div.  (N. 
Y.)    575. 

31.  Union  Surety  &  Guaranty  Co.  v.  Ten- 
ney,   102   111.   App.    95. 

33.  Winterburn  v.  Parlow,  102  111.  App. 
368.  Two  and  one-half  months  delny  after 
notice  of  trial  is  fatal — Freund  v.  Huylers, 
102  111.  App.  486.  And  a  motion  when  the 
cause  is  called  for  trial  comes  too  late — 
Pierpont  v.  Johnson,  104  111.  App.  27.  A 
motion  to  have  equitable  issues  sent  to 
special  term  cannot  be  made  after  two  years 
delay — Jacob  v.  Thompson,  80  App.  Div.  (N. 
Y.)    526. 

33.  Martin  v.  Universal  Trust  Co.,  76 
App.  Div.   (N.  Y.)   320. 

34.  Noble  V.   Burney,    116   Ga.    626. 

35.  Plaintiff  contended  that  he  was  en- 
titled  to   go  to   trial   at  peril  of  dismissal  If 


954 


DOMICILE. 


Short  cause  calendars. — A  case  should  not  be  put  on  the  short  cause  calendar 
where  there  is  reasonable  doubt  whether  it  can  be  tried  in  the  prescribed  short 
time.^' 

DOMICILE.  3T 

Under  the  common  law,  the  husband  may  select  the  family  domicile.'*  The 
domicile  of  an  infant  is  that  of  the  parents  and  is  presumed  to  continue  at  such 
place  until  proof  that  it  has  been  lawfully  changed.^'  After  the  death  of  the 
father,  the  domicile  of  the  children  is  that  of  the  mother.*" 

A  change  of  domicile  is  accomplished  by  a  change  of  residence  to  a  new  place 
coupled  with  the  animus  manendi.*^  The  intent  must  be  shown,*^  and  there  must 
be  an  actual  removal,  an  arrangement  for  the  change  is  not  sufficient.*^  Domicile 
is  not  lost  by  temporary  absence.**  One  charging  a  change  of  domicile  has  the 
burden  of  proving  the  change,  as  the  domicile  of  origin  continues  until  another  is 
acquired.*^ 

Domicile  of  paupers  and  insane  persons. — A  person  of  unsound  mind  is  in- 
capable of  forming  an  intention  necessary  to  effect  a  change  of  domicile.*®  On 
marriage,  the  woman  takes  the  pauper  settlement  of  her  husband  if  he  has  any.*'^ 
A  settlement  of  a  woman  is  not  changed  by  her  marriage  induced  by  collusion  of 
the  pauper  officers  of  the  district  of  her  settlement,**  nor  where  the  husband  at 
the  time  of  the  marriage  was  mentally  incapacitated  to  contract  a  marriage.** 
Though  a  pauper  act  uses  the  word  "resides"  in  the  sense  of  having  a  domicile 
and  provides  that  a  woman  who  resides  at  any  place  for  five  years  altogether  shall 
gain  a  settlement,  yet  the  intention  of  one  leaving  a  place  to  return  at  some  in- 


he  failed  to  establish  an  equitable  cause  of 
action — Everett  v.  De  Fontaine,  78  App.  Div. 
(N.   Y.)    219. 

36.  Uvalde  Asphalt  Pav.  Co.  v.  Dunn,  77 
App.  Div.  (N.  T.)  467.  Cases  requiring  more 
than  two  hours  should  be  sent  to  the  foot 
of  the  general  term  calendar — Guaranty- 
Trust  Co.  V.  Griffiths,  81  App.  Div.  (N.  Y.) 
631. 

37.  Jurisdiction  as  dependent  on  domi- 
cile or  citizenship  of  parties,  see  Jurisdic- 
tion. 

38.  Schuman  v.   Schuman.   93   Mo.  App.   99. 

39.  In  re  Russell's  Estate,  64  N.  J.  Eq. 
313.  The  residence  of  a  child  at  the  death 
of  the  father  is  not  changed  by  the  fact 
that  the  mother  takes  the  child  with  her  to 
another  state,  unless  an  intent  on  her  part 
to  abandon  the  former  state  as  a  residence 
is   shown — Id. 

40.  In  re  Russell's  Estate,  64  N.  J.  Eq. 
313.  It  is  not  necessary  that  the  children 
should  be  removed  from  the  state  of  the 
father's  residence  in  order  to  make  their 
domicile  that  of  the  mother  in  another 
state — Modern  "Woodmen  of  America  v.  Hes- 
ter   (Kan.)    71   Pac.    279. 

41.  Marks  v.  Germania  Sav.  Bank  (La.) 
34  So.  725.  Continuous,  uninterrupted  decla- 
rations, especially  at  times  not  suspicious, 
accompanied  by  the  fact  of  residence,  the 
removal  of  personal  property  and  the  exer- 
cise of  political  rights  establish  a  change  of 
domicile — Id. 

42.  In  re  Russell's  Estate,  64  N.  J.  Eq. 
313;  Inhabitants  of  Palmer  v.  Inhabitants  of 
Hampden,   182  Mass.   511. 

43.  Inhabitants  of  Palmer  v.  Inhabitants 
of  Hampden,  182  Mass.   511. 


44.  Removal  for  temporary  purposes 
without  intention  of  changing  his  residence 
will  not  disqualify  a  juror — Sikes  v.  State, 
116  Ga.  182.  A  wife  living  separately  from 
her  husband  for  five  years  does  not  lose  her 
residence  in  the  state  of  his  domicile  for  the 
purpose  of  a  divorce  suit  w^hile  going  into 
another  state  to  work  to  support  herself — 
Boreing  v.  Boreing,  24  Ky.  L.  R.  12S8,  71  S. 
"W.  431.  A  finding  that  a  party  was  not  a 
nonresident  so  as  to  allow  an  attachment 
is  supported  where  testimony  of  a  party  and 
his  wife  shows  that  he  left  the  state  merely 
to  take  a  temporary  position  and  there  -was 
nothing  to  the  contrary  on  which  to  base 
more  than  a  mere  suspicion — Xewlon-Hart 
Grocer  Co.  v.   Peet    (Colo.   App.)    70   Pac.    446. 

An  intention  to  return  at  an  indefinite 
time  not  sufficient  to  retain  domicile  under 
pauper  laws — Inhabitants  of  Palmer  v.  In- 
habitants of  Hampden,  182  Mass.   511. 

45.  Succession  of  Simmons,  109  La.  1095; 
Fidelitv  &  Casualty  Co.  v.  Brown  (Ind.  T.) 
69   S.  W.   915. 

46.  Held  in  a  case  involving  a  pauper 
settlement — Phillips  v.  City  of  Boston 
(Mass.)    67    N.   E.    250. 

47.  Inhabitants  of  "U'inslow  v.  Inhabit- 
ants of  Troy,  97  Me.  130. 

48.  Inhabitants  of  Hudson  v.  Inhabitants 
of  Charleston,  97  Me.  17.  Sufficiency  of  evi- 
dence that  a  marriage  was  procured  by  col- 
lusion on  the  part  of  the  officers  of  a  town 
liable  for  the  support  of  a  pauper  woman 
—Id. 

49.  Inhabitants  of  Winslow  v.  Inhabitants 
of  Troy,  97  Me.  130. 


EVIDENCE  AS  TO  DOMICILE. 


955 


definite  time  is  not  enough  to  retain  her  domicile  there  so  that  the  time  before 
and  after  her  leaving  may  be  tacked  to  make  the  five  year  domicile.^  The  guard- 
ian of  an  insane  person  in  Iowa  may  deny  his  ward's  legal  residence  in  the  county 
of  the  guardian's  appointment  in  an  action  to  restrain  collection  of  taxes  though 
the  laws  of  that  state  require  appointment  of  a  guardian  for  any  "inhabitant"  of 
the  county  found  insane. ^^ 

Domicile  under  election  laws. — ^Residence  in  an  election  district  is  acquired  by 
moving  one's  personal  effects  thereto  and  by  acts  showing  an  intent  that  residence 
should  commence  at  that  time."  It  is  not  lost  by  temporary  absences.^'  It  is 
lost  by  removal  into  another  state  with  intent  to  remain  there  permanently,  though 
the  party  afterwards  changes  his  intention  and  returns.'**  A  student,  who  at  the 
time  of  voting  has  no  fixed  intention  to  remain  in  the  state,  is  not  eligible  to 
vote  therein  though  he  has  actually  resided  in  the  state  for  a  longer  period  than 
that  required.^*" 

Domicile  under  revenue  laws  is  often  required  as  of  a  certain  date  as  determin- 
ing taxable  residence."" 

Domicile  under  bankruptcy  act. — Under  the  bankruptcy  act  conferring  juris- 
diction as  to  persons  having  a  domicile  within  the  district  for  the  preceding  six 
months  or  greater  portion  thereof,  a  traveling  gambler  residing  in  a  particular 
district  for  only  two  months  is  not  included.*' 

Evidence  as  to  domicile. — The  statements  of  a  party  and  his  conduct  are  not 
conclusive  of  the  question  of  intent,"  but  may  be  considered  on  that  question 
along  with  other  evidence,"*  and  a  like  rule  governs  where  domicile  is  sought  to 
be  proved  by  the  appointment  of  an  administrator  and  the  probate  of  a  will.®"  In 
the  absence  of  evidence  to  the  contrary,  residence  in  the  United  States  under  the 
copyright  law  is  sufficiently  proved  by  a  certificate  of  the  librarian  describing  the 
party  as  of  New  York  and  the  author's  testimony  that  he  was  at  the  time  of  the 
trial  a  resident  of  New  York  and  had  mailed  the  copies  to  the  librarian  in  New 
York  more  than  ten  years  before.*^ 


50.  Inhabitants  of  Palmer  v.  Inhabitants 
of  Hampden,   182  Mass.   511. 

51.  Brown  v.  Lambe  (Iowa)   93  N.  "W.  486. 
63.     There  Is  an  acquisition  of  a  residence 

in  a  precinct  within  the  election  laws  where 
the  party  at  the  date  necessary  to  fix  his 
residence  as  a  legal  voter  moves  a  part  of 
his  property  Into  the  house  and  is  married 
on  that  day  and  the  following  day  moves 
into  the  house  with  his  wife — Conner  v. 
Commonwealth,  24  Ky.  L.  R.  709,  69  S.  W. 
963. 

53.  An  unmarried  man  will  not  lose  his 
residence  by  reason  of  his  leaving  the  state 
where  he  Intends  to  return  within  a  short 
time  and  does  in  fact  return  and  lives  in 
the  state  at  the  time  of  his  election — Ed- 
wards V.  Logan.  24  Ky.  L.  R.  1099,  70  S.  W. 
852,  25  Ky.  L.  R.  435,  75  S.  "W.  257.  A  voter 
moving  into  another  ward  for  sanitary  rea- 
sons only  intending  to  return  does  not  lose 
his  residence  by  reason  of  the  temporary 
removal — Finn  v.  Board  of  Canvassers,  24 
R.   I.   482. 

But  see  ante,  note  44. 

54.  Edwards  v.  Logan,  24  Ky.  L.  R.  1099. 
70  S.  W.   852,   25  Ky.  L.  R.   435,  75   S.  W.   257. 

55.  Parsons  v.  People,  30  Colo.  388,  70 
Pac.  689. 


56.  In  New  Tork,  residence  on  July  1st 
determines  residence  for  assessment — Peo- 
ple V.   Feitner,   78  App.   Dlv.   (N.   T.)    287. 

57.  In  re  Williams,  120  Fed.  34. 

58.  Ida  County  Sav.  Bank  v.  Seldenstick- 
er  (Iowa)  92  N.  W.  862.  An  affidavit  stat- 
ing that  a  party  has  removed  and  resides 
in  another  state  and  does  not  reside  in  the 
state  from  which  it  is  claimed  he  has  re- 
moved, states  a  conclusion  and  is  not  suffi- 
cient proof  of  nonresidence — Fidelity  &  Cas- 
ualty Co.  v.  Brown   (Ind.  T.)    69  S.   W.   915. 

59.  While  a  man's  act  in  registering  him- 
self and  wife  at  hotels  as  of  a  certain  place 
may  be  insufficient  in  itself  to  fasten  upon 
him  acknowledgment  of  domicile  there,  re- 
peated registerings  of  that  kind  through  two 
or  three  years  time,  and  never  once  of  an- 
other (subsequently  claimed  from  interested 
motives,  to  be  his  domicile)  are  strong  links 
in  the  chain  of  facts  and  circumstances 
going  to  establish  Intention  to  make  the 
place  of  declared  residence  his  domicile — 
Marks  v.  Germania  Sav.  Bank  (La.)  34  So. 
725. 

60.  Ewing  V.  Mallison,  65  Kan.  484,  70 
Pac.  369. 

61.  Patterson  v.  J.  S.  Ogilvle  Pub.  Co.,  119 
Fed.   451. 


956 


DOWER. 


§   1 


DOWER. 


5  1.  iVatare  of  RIgbt,  Persons  Entitled, 
ESlection. 

§  2.     In  What  Dotver  may  be  Had. 

§  3.  Extinguishment,  Release  or  Bar  and 
Revival  of  Dower. — Joinder  in  Conveyance; 
Warranty;  Judicial  Sale;  Creditor's  Suit; 
Adverse  Possession;  Title  to  Payments  for 
Release. 


§  4.     Ldens    and    Charges    on   ]>o'«rer. 
§  5.     Assignment     of     Dovrer     and     Money 
Awards. 

§  6.     Damages  for  Withholding  Dower. 
§  7.     Remedies    and   Procedure. 


§  1.  Nature  of  right;  persons  entitled;  election. — ^The  wife's  inchoate  rigM 
of  dower  prior  to  the  husband's  death  is  not  a  vested  right  protected  against  legis- 
hitive  change  ;^2  hence  a  statute  defining  the  lands  in  which  a  wife  is  dowable  is 
operative  as  to  inchoate  rights  of  dower/^  but  after  the  dower  estate  has  become 
vested  by  the  death  of  the  husband  it  cannot  be  changed  by  legislation  to  the 
prejudice  of  the  heirs.®* 

A  widow  who  prior  to  her  husband's  death  abandons  him  and  lives  in  adul- 
tery is  not  entitled  to  dower/^  and  though  both  husband  and  wife  have  been  guilty 
of  adultery,  the  husband  first  being  guilty,  the  wife  nevertheless  is  not  entitled  to 
dower  she  not  being  living  with  her  husband  at  the  time  of  his  death.®® 

\Yliere,  on  the  emigration  of  the  husband,  the  wife  refuses  to  accompany  him, 
the  separation  will  be  regarded  as  voluntary  on  her  part,  within  the  meaning  of 
statutes  depriving  her  of  dower  in  the  case  of  such  separation,  and  she  is  not  ex- 
cused by  a  report  that  he  is  married  to  another  woman.®^  Xor  can  she  claim  dower 
where  from  her  actions  it  is  apparent  that  she  does  not  intend  again  to  live  with 
her  husband.®* 

Election  between  dower  and  other  rights. — Statutes  allowing  an  election  by 
the  widow  to  take  one-half  of  the  land  subject  to  the  payment  of  the  debts  of  the 
estate  in  lieu  of  dower  in  one-third  where  there  are  no  children  have  been  construed 
to  be  distinct  from  statutes  providing  for  the  order  of  succession  in  the  event  of 
intestacy  without  issue,  so  that  an  election  to  take  under  one  of  such  provisions 
will  not  bar  a  claim  under  the  other.®® 

There  is  no  such  inconsistency  between  the  right  of  dower  and  the  distribu- 
tive share  in  personalty  as  to  make  the  taking  of  one  an  exclusion  of  the  other.''® 
Acceptance  of  the  provisions  of  the  will  by  the  widow  does  not  bar  dower  unless 
the  provisions  of  the  will  are  inconsistent  with  such  right  or  it  expressly  so  pro- 
vides.''^ A  provision  for  joiiit  occupancy  of  the  realty  by  the  wife  and  daughter, 
and  in  case  they  desire  it,  for  a  sale  and  equal  division  of  the  proceeds  between 
the  wife  and  two  children  of  testator,  is  not  so  inconsistent  with  the  widow's  right 
of  dower  as  to  prevent  her  becoming  an  owner  in  fee  of  one-third  of  the  land 
occupied  though  it  provided  that  on  sale  the  share  of  the  proceeds  should  be  given 
to  the  wife  in  lieu  of  dower.'' ^ 

In  ]^ew  York  a  widow  cannot  have  dower  in  addition  to  a  testamentary  provi- 


62.  Helm  v.  Board,  24  Ky.  L,.  R.  1037,  70 
S.  "W.  679;  Bartlett  v.  Tinsley  (Mo.)  75  S.  W. 
143. 

63.  Ky.  St.  §  2135 — Helm  v.  Board,  24  Ky. 
L.  R.  1037,   70  S.  "W.  679. 

64.  Estate  vested  under  Code  1851,  §  1394, 
giving  the  -widow  for  life,  one-third  of  the 
land  of  Tvhich  the  husband  died  seized — Bot- 
torff  v.  Lewis  (Iowa)   95  N.  W.  262. 

65.  Rev.  St.  1S99,  §  2953 — Lyons  v.  Lyons 
(Mo.  App.)    74  S.  W.  467. 

66.  Code.  §  2102;  Acts  1893,  c.  153 — Phil- 
lips v.  "Wiseman.  131  N.  C.  402. 

67.  Rev.  St.  1889,  §  4532 — Wilson  v.  Craig 
(Mo.)   75  S.  W.   419. 


68.  She  remarried  without  procuring  a 
divorce — Wilson  v.  Craig  (Mo.)   75   S.  "W.  419. 

69.  Rights  under  Civ.  Code,  §§  228,  236,  re- 
garded as  separate  from  rights  under  sec- 
tion 1852 — Dahlman  v.  Dahlman  (Mont.)  72 
Pac.  748. 

70.  Rev.  St.  1892,  §§  4176,  5964 — Hutchings 
V.   Davis    (Ohio)    67   N.  E.   251. 

71.  Code.  1873,  §  2452,  provides  that  the 
widow's  share  cannot  be  affected  by  any 
•will  of  the  husband,  unless  she  consent 
thereto  within  six  months  after  notice  of 
its  provisions — Kiefer  v.  Gillett  (Iowa)  94 
N.  W.   270. 

72.  Kiefer  v.  Gillett   (Iowa)   94  N.  W.  270. 


§  1 


ELECTION— EXTENT    OF    ESTATE. 


9S7 


sion  for  payment  to  her  of  one-third  of  the  income  of  the  realty  during  the  minor- 
ity of  the  child,  and  on  the  termination  of  the  trust  for  the  child  a  conveyance  of 
one-tliird  of  the  realty  itselfJ^  Where  no  pro^dsion  is  made  for  the  widow  by 
will  except  the  creation  of  an  annuity  not  stated  to  be  in  lieu  of  dower,  the  widows 
is  not  required  to  elect,''*  and  where  the  will  gives  the  widow  nothing  in  lieu  of 
dower,  her  acceptance  of  her  dower  is  not  an  election  between  her  distributive  share 
conferred  by  statute  and  the  will,  though  she  takes  the  value  in  money/^ 

An  agreement  by  the  wife  at  the  time  of  execution  of  a  will  by  her  husband, 
to  take  thereunder  in  lieu  of  dower  or  other  interest,  and  the  acceptance  of  a  por- 
tion of  the  bequest  from  the  executors,  does  not  prevent  the  widow  from  renounc- 
ing the  will  if  the  bequest  is  less  than  the  amount  she  would  take  under  the  stat- 
ute.^« 

Ignorance  of  her  rights  will  not  excuse  failure  of  the  widow  to  renounce  the 
husband's  will  within  the  period  prescribed  by  statute  for  her  election  unless 
the  time  has  been  extended  by  the  chancellor,'''^ 

The  fact  that  the  widow  remains  in  the  residence  given  her  in  lieu  of  dower 
by  an  antenuptial  contract  during  assignment  of  dower  does  not  show  an  election 
to  take  under  the  contract.''^  The  widow's  right  to  dower  is  not  extinguished  by 
merger  on  an  acceptance  from  the  heirs  of  a  quitclaim  deed  of  the  premises  in 
which  dower  is  claimed,  where  a  different  intention  may  be  reasonably  deduced 
from  the  circumstances.'" 

Effect  of  assignment. — Before  dower  is  assigned  it  is  not  subject  to  a  transfer 
or  conveyance  by  the  widow, ^°  though  by  statute  it  may  be  made  so.®^  Prior  to 
assignment,  the  widow  has  no  such  title  to  the  land  as  will  support  an  action  at 
law  against  the  administrator  or  heir  for  rents  collected ;  her  remedy  is  in  equity.*^ 

When  dower  is  assigned,  the  widow's  seisin  relates  to  the  date  of  death  of  her 
husband  and  the  antecedent  seisin  of  the  heir  is  to  be  regarded  as  not  having  had 
an  existence,^^  and  where,  before  assignment,  the  administrator  rents  property  in 
which  such  dower  is  assigned,  one  to  whom  he  transfers  the  obligation  for  rent 
cannot  enforce  such  obligation  as  against  the  widow's  claim,  such  transferee  being 
chargeable  with  knowledge  of  the  limited  rights  of  the  administrator,^*  and  the 
widow  can,  if  the  transferee  receive  a  portion  of  the  crop  as  rent,  waive  the  tor- 
tious conversion  and  bring  an  action  for  money  had  and  received.*^ 

After  assignment,  the  widow  has  a  vested  estate  in  that  assigned  to  her,^* 
which  estate  does  not  depend  on  her  continued  occupancy,®^  and  she  is  not  an- 
swerable to  the  heirs  of  the  husband  for  rents  received  from  tenants  to  whom  she 
leased  the  premises.**  Under  statutes  giving  the  widow  a  life  estate,  her  dower 
estate  after  award  is  not  one  of  inheritance  and  cannot  be  bequeathed  or  conveyed 
so  as  to  pass  an  interest  to  her  heirs  or  strangers  after  her  death  ;*^  hence,  when 
an  heir  in  a  conveyance  of  his  realty  reserved  any  interest  which  might  accrue  in 


73.  In  re  Gorden,  172  N.  T.  25,  11  Ann. 
Cas.    397. 

74.  Horstmann  v.  Flege,  172  N.  T.  381,  12 
Ann.   Cas.   163. 

75.  Hutchings  v.  Davis  (Ohio)  67  N.  E. 
251. 

76.  There  Is  no  ground  for  estoppel  and 
there  is  no  consideration  making  the  agree- 
ment binding  as  a  valid  contract — Spratt  v. 
Lawson   (Mo.)    75  S.  W.   642. 

77.  Election  must  be  within  one  year  un- 
der Kentucky  St.  1899,  §  1404 — Logsdon  v. 
Haney   (Ky.)    74  S.  W.  1073. 

78.  The  contract  was  on  an  insufficient 
consideration — Moran  v.  Stewart,  173  Mo. 
207. 


79.  Wettlaufer  v.  Ames  (Mich.)  94  N.  W. 
950. 

80.  She  cannot  by  a  lease  transfer  her  in- 
terest in  oil  and  gas  rights  in  land  from 
which  she  is  entitled  to  be  assigned  dower 
— Haskell  v.  Sutton    (W.  Va.)    44   S.  E.  533. 

81.  Rev.  St.  1899,  §  2934 — Phillips  v.  Pres- 
son,  172  Mo.   24. 

82.  83,  84,  85.  Bettis  v.  McNider  (Ala.)  34 
So.  813. 

86.  Haugh  V.   Peirce,   97  Me.   281. 

87.  She  is  seized  for  life  of  a  freehold 
estate — Rowley  v.   Poppenhager,    203   111.   434. 

SS.     Rowley  v.  Poppenhager,  203  111.   434. 
89.     Code.    1851.    §    1394 — BottorfC   v.    Lewis 
(Iowa)   95  N.  W.  262. 


958 


DOWER. 


§2 


the  estate  of  the  widow,  such  reservation  cannot  be  regarded  to  refer  to  the  dower 
estate  but  merely  to  such  other  lands  as  might  be  acquired  by  the  widow  in  fee 
simple.^" 

Wliere  property,  devised  the  widow  for  life,  is  on  her  refusal  to  take  under 
the  will  set  off  as  dower,  the  rights  of  the  remaindermen  are  not  affected." 

§  2.  In  what  dower  may  he  had. — Possession  imder  a  mere  equitable  right  to 
a  conveyance  is  not  sufficient  to  support  an  inchoate  right  of  dower,  though  the 
husband  complies  with  the  contract  of  purchase  but  takes  title  in  the  name  of  a 
third  person.®=^  Under  certain  statutes,  the  widow  may  have  dower  in  property  of 
which  the  husband  was  not  in  actual  possession.^'  Possession  by  the  husband 
under  an  arrangement  with  the  life  tenant  is  not  sufficient.**  Where  the  hus- 
band's equity  under  a  contract  for  the  purchase  of  land  is  sold  to  satisfy  a  judg- 
ment for  the  pa}Tnent  of  a  balance  due  on  the  purchase  price,  the  wife  has  no 
right  of  dower  as  against  the  purchaser  who  has  received  possession.^* 

The  wife  of  a  devisee  has  an  inchoate  right  of  dower  in  his  share  of  lands 
devised,  and  a  decree  in  partition  which  bars  her  of  any  right,  title,  or  interest 
in  such  lands  is  erroneous.®* 

The  wife  is  not  entitled  to  dower  in  land  which  her  husband  holds  in  trust,'^ 
but  a  parol  trust  will  not  be  raised  to  defeat  a  wife's  claim  to  dower  in  land  of 
which  her  husband  was  seized  in  favor  of  one  taking  with  constructive  notice  of 
the  absolute  character  of  the  conveyance  to  the  husband.'®  The  widow  may  have 
dower  in  the  husband's  lands  which  with  him  she  has  conveyed  in  trust  to  be  con- 
veyed by  the  trustee  to  the  husband's  heirs  in  default  of  an  appointment  during 
his  life  time  or  in  his  will,  there  having  been  no  appointment,^^  but  her  dower  is 
extinguished  as  to  a  portion  of  the  land  which  the  trustee  conveyed  during  the 
husband's  life  at  his  request.^ 

Dower  attaches  only  to  such  real  estate  of  a  partnership  as  is  not  required 
for  the  payment  of  partnership  debts  and  for  the  adjustment  of  rights  between 
the  partners.^ 

Property  conveyed  before  marriage. — The  widow  is  entitled  to  one-third  of 
the  real  property  owned  by  her  husband  during  coverture  only,  and  such  right  can- 
not be  extended  to  lands  conveyed  by  the  husband  before  marriage  to  his  heirs  by 
a  former  marriage  by  way  of  advancements.^  A  conveyance  before  marriage  is 
not  in  fraud  of  the  wife's  dower  right  where  made  with  her  knowledge  and  in  the 
absence  of  fraud,  undue  influence,  or  want  of  capacity  on  the  part  of  the  hus- 
band.* There  is  no  right  of  dower  in  property  which  before  his  marriage  the 
husband  has  conveyed  by  deeds  placed  in  escrow  to  be  recorded  and  delivered  to 
the  gi-antees  after  his  death. ° 


90.  Bottorff  V.  Lewis  (Iowa)  96  N.  W. 
262. 

91.  Baptist  Female  University  v.  Borden, 
132  N.  C.   476. 

92.  There  is  no  sufficient  seisin  where  the 
husband  has  title  to  land  which  he  pur- 
chases, conveyed  to  his  brother  in  order  to 
prevent  the  vrife's  right  of  dower  from  at- 
taching— Nichols  v.  Park,  78  App.  Div.  95,  T'2 
N.  Y.  Ann.   Cas.   306. 

93.  Rev.  St.  1889,  §  4535 — Bartlett  v.  Tins- 
ley   (Mo.)    75   S.  W.  143. 

94.  Boykin  v.  Springs,   66   S.  C.  362. 

95.  Burns'  Rev.  St.  1901,  §  2652,  provides 
that  dower  shall  attach  to  the  real  estate 
of  which  the  husband  is  seized  in  fee  sim- 
ple during  marriage — Schaefer  v.  Purviance 
(Ind.)  66  N.  E.  154. 


96.  Schick  V.  Whitcomb   (Neb.)    94  N.  W. 

1023. 

97.  His  estate  not  being  an  indefeasible 
estate  of  inheritance — Gritten  v.  Dickerson, 
202   111.    372. 

98.  Bartlett  v.  Tinsley  (Mo.)   75  S.  W.  143. 

99.  1.  Goodheart  v.  Goodheart,  63  N.  J.  Eq. 
746. 

2.  Davidson  v.  Richmond,  24  Ky.  L.  R. 
699.   69  S.  W.  794. 

3.  Code,  §  3366 — Burgoon  v.  Whitney 
(Iowa)   95  N.  W.  229. 

4.  Evidence  held  not  to  show  fraud  In  the, 
case  of  a  conveyance  before  the  second  mar- 
riage of  a  man  of  76  in  consideration  of  the 
assumption  of  debts  by  a  son  and  promise 
to  make  certain  provisions  for  other  chil- 
dren— Daniher  v.  Daniher,   201  III.   489. 


§  3 


PROPERTY  SUBJECT.   .RELEASE. 


959 


Land  acquired  hy  the  husband  after  divorce  is  not  subject  to  dower  in  favor 
of  the  former  wife.' 

Lands  subject  to  mortgage  or  vendor's  lien. — The  wife  has  no  dower  in  land 
which  her  husband  takes  subject  to  a  mortgage  though  he  executes  his  own  notes 
and  mortgage  to  take  the  place  of  the  existing  indebtedness,  the  evidences  of  which 


are  surrendered  to  his  grantor.'^ 


In  ]\Iissouri,  the  wife  is  entitled  to  dower  in  land  purchased  by  the  husband 
subject  to  a  mortgage,  and  if  after  the  husband's  death  the  administrator  pays  off 
the  mortgage  by  a  sale  of  the  mortgaged  and  other  land,  the  widow's  dower  imme- 
diately attaches,  and  as  the  purchaser  does  not  acquire  title  under  the  mortgage 
he  cannot  be  subrogated  to  the  mortgagee's  rights.' 

In  Kentuck)^  prior  to  the  adoption  of  a  statute  allowing  the  vdfe  dower  in 
a  surplus  remaining  after  the  sale  of  land  of  which  her  husband  was  seized,  to 
satisfy  a  vendor's  lien,  the  widow^s  right  to  dower  was  subordinate  to  the  purchase 
money  lien.^ 

Though  a  sale  under  a  mortgage  in  which  the  wife  has  joined  is  after  the  hus- 
band's death,  the  widow  is  entitled  to  dower  only  in  the  surplus  remaining  after 
satisfaction  of  the  mortgage." 

Land  of  alien. — The  widow  may  claim  dower  in  lands  conveyed  individually 
by  her  husband,  though  he  was  bom  in  a  foreign  state. ^^ 

§  3.  Extinguishment,  release  or  bar,  and  revival  of  dower. — "Where  before 
marriage  the  wife  releases  her  widow's  award,  dower,  and  homestead  in  her  future 
husband's  property  in  consideration  of  a  sum  in  gross,  the  release  will  be  inopera- 
tive as  to  the  dower  if  void  as  to  the  homestead  and  repudiated  as  to  the  award  by 
the  wife  after  the  birth  of  a  child.^^  An  antenuptial  relinquishment  of  dower 
cannot  be  renounced  by  the  widow  unless  she  was  an  infant  at  the  time  of  its  exe- 
cution.'^ Dower  is  not  barred  by  an  antenuptial  contract  making  provision  for 
the  wife's  support  during  widowhood  merely  and  not  for  life.^* 

A  widow  who  has  been  given  a  consideration  for  her  release  of  her  distribu- 
tive share  cannot  avoid  such  release  without  a  return  of  the  consideration." 

Effect  of  joinder  in  conveyance  or  incumbrance. — Statutes  which  provide  that 
the  wife  shall  not  have  dower  in  land  sold  to  satisfy  liens  or  encumbrances  created 
by  deed  in  which  she  joins  comprehend  mortgages.^'  Where  the  wife  has,  in  a 
mortgage,  released  her  dower,  she  is  entitled,  on  a  sale  under  the  mortgage,  only 
to  compensation  for  the  value  of  her  dower  in  that  part  of  the  land  not  necessary 


5.  Yutte  V.   Tutte.   39  Misc.    (N.   T.)    272. 

6.  Nichols  V.  Park,  78  App.  Div.  95,  12  N. 
Y.  Ann.  Cas.  306. 

7.  Dower  denied  as  against  a  purchaser 
on  foreclosure  of  the  second  mortgage — 
Rhea  v.   Rawls.   131   X.  C.   453. 

S.  The  better  rule  appears  to  be  an- 
nounced in  a  dissenting  opinion  in  this  case, 
in  which  it  is  held  that  the  husband  during 
his  lifetime  never  having  more  than  an 
equity  of  redemption,  there  was  nothing  to 
which  the  inchoate  right  of  dower  could  at- 
tach in  excess  thereof,  and  hence  no  such 
inchoate  right  could  become  absolute  on 
the  discharge  of  the  mortgage  by  the  ad- 
ministrator. Majority  opinion  construes 
Rev.  St.  §§  2933.  2935.  2936 — Casteel  v.  Potter 
(Mo.)   75   S.   W.   597. 

9.  Under  Rev.  St.  c.  47.  art.  3,  §  6,  Ky.  St. 
2135.  providing  that  if  there  is  a  surplus  of 
the  land  or  proceeds  of  sale,  after  satisfy- 
ing a  purchase  money  lien,  the  wife  shall 
have  dower  from  such  surplus,  the  widow's 
right   to  dower  must  be   satisfied   out   of  the 


surplus  proceeds  where  the  whole  land  is 
sold  and  the  land  or  its  transferees  are  not 
liable — Helm  v.  Board,  24  Ky.  L.  R.  1037,  70 
S.  W.  679. 

10.  Code,  §  2269,  does  not  make  any  con- 
trary provision  though  it  provides  for  a 
dower  in  surplus  in  the  sale  of  land  dur'ng 
a  husband's  life  time — Hoy  v.  Varner  (Va.) 
42   S.   E.    690. 

11,  In  the  absence  of  evidence  that  he 
was  an  alien,  McClain's  Code,  1888,  §  3646, 
•will  have  no  application  even  if  it  applied 
to  resident  aliens — Casley  v.  Mitchell  (Iowa) 
96  N.  W.   725. 

13.     Zachmann  v.  Zachmann.  201  111.  380. 

13.  Rev.  St.  1899.  §  2951.  allows  such  re- 
linquishment in  case  of  infancy — Moran  v. 
Stewart.   173  Mo.    207. 

14.  Moran  v.   Stewart,  173  Mo.   207. 

15.  "Willis  V.  Robertson  (Iowa)  96  X  TV 
900. 

16.  Ky.  St.  §  2135 — Morgan  v.  TVickliffe, 
24  Ky.  L.  R.   2104,  72  S.  "W.  1122. 


960 


DOWER. 


§  3 


to  the  payment  of  the  mortgage  debt  though  the  proceeds  of  that  part  of  the  land 
are  obtained  by  a  sale  of  the  husband's  personal  right  of  redemption.^^ 

Signature  and  acknowledgment  of  a  mortgage  is  not  sufficient  to  bar  the 
wife's  dower  if  her  name  does  not  appear  in  the  body  of  the  instrument.^®  Par- 
ticular words  of  release  are  not  necessary  in  New  Jersey.^' 

Where  a  wife  joins  in  a  conveyance  by  her  husband  for  the  purpose  of  re- 
leasing any  inchoate  right  of  dower  which  she  may  have  in  his  interest  in  the 
estate  of  a  deceased  brother,  she  will  not  be  regarded  as  conveying  property  owned 
by  her.-" 

Covenants  of  warranty. — Where,  by  statute,  the  heirs  and  devisees  of  a  person 
who  has  conveyed  with  covenants  or  agreements  are  made  answerable  on  such 
covenants  to  the  extent  of  the  lands  descended  or  devised  to  them,  the  widow  is 
not  by  such  statute  estopped  from  claiming  dower  in  land  conveyed  by  the  husband 
alone  with  warranties  during  marriage  until  claims  for  damage  for  breach  of  such 
warranty  are  satisfied.  ^^ 

Foreclosure  or  execution  sales. — A  wife's  right  to  dower  is  not  barred  by  fore- 
closure proceedings  in  which  she  has  failed  to  have  her  inchoate  right  adjudicated 
where  the  decree  contains  nothing  from  which  it  could  be  implied  that  the  rights 
of  the  parties  to  the  land  in  controversy  were  litigated  or  determined.^^  The  right 
to  claim  dower  is  not  barred  by  a  default  decree  rendered  against  the  wife  in  fore- 
closure proceedings  instituted  on  a  mortgage  which  she  has  signed  and  acknowl- 
edged, but  in  which  she  has  not  released  dower,  if  neither  the  petition  nor  the 
decree  in  such  proceedings  mentions  or  seeks  to  bar  dower.  ^^  A  wife's  dower  is 
not  divested  by  sale  of  land  on  execution  on  judgment  rendered  against  the  hus- 
band alone.^*  A  decree  of  foreclosure  which  does  not  mention  the  wife  of  the 
gi'antor  will  not  be  extended  to  cut  off  her  dower  interest  in  the  land  through  an 
application  of  the  rule  that  the  word  "defendant"  iu  a  decree  will  be  held  to  in- 
clude a  plural  where  the  sense  requires  it.^^ 

Effect  of  creditors  suit. — A  decree  in  a  suit  by  judgment  creditors  of  the 
husband  to  marshal  liens,  to  which  tTie  wife  is  an  unnecessary  party,  does  not  bar 
her  dower  right  since  the  creditors  have  no  claim  against  such  right,  nor  is  such 
right  affected  by  a  sheriff's  sale  under  the  decree,  or  by  judgments  on  answers  and 
cross  petitions  in  favor  of  mortgagees  who  are  joined  where  she  is  not  included  in 
such  judgments,^"  nor  is  the  wife,  by  the  fact  that  she  is  improperly  made  a  party, 
bound  to  take  notice  of  the  claims  of  the  mortgagees  so  that  the  decree  will  estop 
her  from  asserting  dower."  If  there  is  a  sale  under  the  decree  of  land  in  which 
the  wife  is  entitled  to  dower  and  from  the  proceeds  mortgages  thereon  are  paid, 
the  wife  on  bringing  suit  for  dower  is  not  bound  to  redeem  the  mortgages  where 
they  are,  before  such  suit  is  brought,  barred  by  the  statute  of  limitations  and  the 


17.  Potter  V.  Skiles,  24  Ky.  L.  R.  910,  70 
S.  W.   301. 

18.  Beverly  v.  Waller,  24  Ky.  L.  R.  2505, 
74  S.  W.   264. 

19.  Joining  with  tiie  husband  In  the  exe- 
cution and  acknowledgment  of  a  convey- 
ance, the  acknowledgment  being  properly 
certified  is  sufficient — Goodheart  v.  Good- 
heart,  63  N.  J.  Eq.  746. 

20.  Such  deed  does  not  pass  land  the 
equitable  title  to  which  was  in  the  w^ife 
before  the  death  of  her  husband's  brother, 
and  of  which  he  held  the  legal  title  as  trus- 
tee, and  which  by  a  succeeding  trustee  had 
been  conveyed  to  her — Adamson  v.  Souder, 
205   Pa.   498. 


21.  Construing  Rev.  St.  1889,  §  8839— 
Bartlett  v.  Tinsley   (Mo.)   75  S.  W.  143. 

22.  Martin  v.  Abbott   (Neb.)   95  N.  W.   356. 

23.  Beverly  v.  Waller,  24  Ky.  L.  R.  2505, 
74  S.  W.  264. 

24.  Martin  v.  Abbott   (Neb.)   95  N.  W.  356. 

25.  Rev.  St.  1892,  §  23,  provides  that  the 
singular  shall  be  held  to  Include  the  plural 
where  the  sense  requires.  The  language  of 
the  decree  was  "Recover  of  the  defendant 
Adams  Jewett" — Jewett  v.  Feldheiser  (Ohio) 
67  N.  E.  1072. 

26.  27,  28.  Jewett  V.  Feldheiser  (Ohio)  67 
N.  E.   1072. 


§  5 


LIENS  AND  CHARGES.     ASSIGNMENT. 


961 


same  reason  prevents  relief  to  the  purchaser  on  the  ground  of  subrogation,  in  addi- 
tion to  the  fact  that  such  purchaser  was  not  in  privity  with  the  mortgagees.^^ 

Adverse  possession  will  not  bar  the  wife's  right  to  dower  unless  continued 
after  the  husband's  death  for  the  full  period  of  limitations.^* 

Payments  to  secure  release. — Creditors  cannot  reach  a  sum  paid  the  wife  of 
the  execution  debtor  by  the  purchaser  of  the  husband's  equity  of  redemption,  who 
has  redeemed  from  execution  sale,  to  secure  a  release  of  her  dower.^"  A  wife  who 
takes  conveyances  of  specific  realty  from  the  husband's  assignee  for  creditors  in 
consideration  of  relinquishment  of  dower  in  the  remainder,  and  the  release  of  a 
mortgage  on  a  portion  thereof,  is  entitled  to  dispose  of  the  realty  convej^ed  to  her 
by  will.^^ 

§  4.  Liens  and  charges  upon  dower. — Though  mortgages  on  the  real  estate 
are  paid  by  a  sale  of  a  portion  thereof  under  order  of  the  court,  the  widow's  dower 
as  against  the  heirs  is  to  be  computed  on  the  full  value  of  the  real  estate,^-  but 
where  a  mortgage  superior  to  the  wife's  dower  is  satisfied  in  part  by  payment  by 
the  heirs  after  the  husband's  death,  the  widow  to  be  entitled  to  dower  in  the  land 
must  contribute  her  share  of  such  advances.^^ 

§  5.  Assignment  of  dower  and  money  awards. — Where,  under  the  statute, 
dower  may  be  assigned  in  a  body  and  need  not  be  assigned  in  each  tract  of  land 
OT.ned  by  the  decedent  separately,  an  heir  who  has  received  a  portion  of  the  realty 
in  full  of  his  share  of  an  estate  and  holds  under  a  warranty  deed  is  entitled  to 
have  the  widow's  dower  allotted  from  land  other  than  that  which  he  has  so  taken.'* 
The  widow  and  heirs  may  make  an  arrangement  by  which  the  widow  is  allotted 
in  a  single  tract  of  land  the  dower  to  which  she  is  entitled  in  each  separate  lot, 
and  a  subsequent  partition  decree  allotting  the  lands  in  severalty  but  finding  that 
the  widow  occupies  the  tract  mentioned  as  her  homestead  and  dower  interest  in 
the  real  estate  of  her  deceased  husband  may  be  regarded  as  intending  to  effectuate 
such  assignment  by  agreement.'" 

Dower  may  be  assigned  from  the  rents  of  improved  property,  allowance  being 
made  for  the  rental  value  of  the  improvements  in  case  the  widow  has  no  dower 
therein.^^  Where  an  annuity  is  assigned  to  the  widow  payable  from  the  rents  and 
profits  of  realty,  she  cannot  be  compelled  by  the  owner  of  the  realty  to  sell  or 
commute  such  rents.''' 

Where  on  partition  sale  a  third  of  the  proceeds  are  assigned  the  widow  as 
dower  to  revert  to  the  heirs  on  her  death,  such  fund  when  it  again  comes  into 
court  will  be  distributed  under  the  original  decree  imless  there  have  been  inter- 
vening transfers.'®  An  assignment  of  an  interest  in  the  reversion  may  be  ver- 
bal,^^  but  is  not  evidenced  by  a  quitclaim  deed  of  the  land  iiade  to  the  purchaser 
after  confirmation  of  the  partition  sale.*"  Where  the  widow  has  assigned  the  fund 
to  one  who  has  given  a  bond  for  its  repayment  into  court,  the  owners  of  the  land 


29.  Lucas  V.  White  (Iowa)  95  N.  W.  209. 
Limitation  fixed  by  Code,  §  3447,  does  not 
begin  until  the  husband's  death — Lucas  v. 
Whitacre   (Iowa)    96  N.  W.   776. 

30.  It  is  immaterial  that  the  amount  so 
paid  was  excessive — Potter  v.  Skiles,  24  Ky. 
L.  R.  1457,  71  S.  W.  627. 

31.  She  is  a  purchaser  for  value  and  the 
conveyance  does  not  simply  vest  in  her  her 
inchoate  dower  Interest  so  that  it  will  pass 
to  her  husband  on  her  death — Under  Hor- 
ner's Rev.  St.  1901,  §  2510 — Willson  v.  Miller, 
30  Ind.  App.   586. 

32.  There  was  no  personalty  to  be  ap- 
plied to  the  encumbrances — Mowry  v.  Mow- 
ry,  24  R.  I.   565. 

Curr.   Law — 61. 


.33.     Hoy  V.  Varner   (Va.)    42  S.  E.   690. 

34.  Hurd's  Rev.  St.  1899,  p.  661,  §  36— 
Long-shore   v.   Longshore,   200  111.   470. 

35.  Rowley  v.  Poppenhager,  203  111.  434. 

36.  She  may  be  awarded  one-third  of  the 
remainder  after  deduction  from  the  net 
rent  of  the  proportion  which  the  improve- 
ments bear  to  the  land,  if  the  land  has  no 
rental  value  separate  from  the  improve- 
ments and  cannot  be  divided — Bartlett  v. 
Ball,  92  Mo.  App.  57. 

S7.  A  third  part  of  the  rents  and  profits 
assigned  under  the  Rev.  St.  c.  65,  §  3 — 
Haugh  V.  Peirce,  97  Me.  281. 

38,  39,  40,  41.  Curtis  v.  Zutavern  (Neb.) 
93  N.  W.  400. 


962 


DURESS.     EASEMENTS. 


as  determined  in  partition,  and  the  representatives  of  such  as  are  deceased,  may 
join  in  an  action  on  the  bond." 

§  6.  Damages  for  withholding  dower  and  mesne  profits. — ^Where  the  action 
is  against  heirs  but  as  beneficiaries  of  a  trust,  they  are  to  be  regarded  as  strangers 
in  fixing  the  time  from  which  damages  shall  run  for  the  detention  of  dower.'*^^ 

§  7.  Ee medics  and  procedure. — A  court  in  the  exercise  of  probate  jurisdic- 
tion can  in  Montana  make  no  orders  affecting  dower,  but  the  general  jurisdiction  of 
the  court  must  be  invoked.*' 

Limitations  begin  to  run  against  the  action  for  the  allotment  of  dower  at  the 
time  of  the  husband's  death.**  In  states  where  the  right  of  dower  becomes  fixed 
in  case  of  a  divorce  for  extreme  cruelty,  an  action  to  recover  such  dower  is  limited 
by  the  general  statutes  relating  to  real  actions  and  not  by  the  general  limitation 
of  actions  on  judgments  and  decrees.*' 

The  widow  is  not  guilty  of  laches  while  she  remains  in  joint  possession  of 
the  estate  in  which  she  is  dowable.*^ 

On  election  to  take  under  the  statute  an  undivided  one-half  interest  in  her 
husband's  estate,  the  widow  may  have  partition  without  waiting  until  the  expira- 
tion of  the  time  within  which  contest  of  the  probate  of  the  will  can  be  made.*^ 

An  averment  of  ownership  by  the  wife  of  an  undivided  one-third  of  lands  of 
her  deceased  husband,  seeking  that  title  be  confirmed  in  her,  sufficiently  negatives 
the  loss  of  the  wife's  dower  interest  during  coverture.*' 

DURESS.  <» 

Arrest  on  a  criminal  charge,""*  particularly  where  it  was  at  the  instance  of  a 
third  person,"^  or  threat  of  such  arrest,"  or  of  civil  proceedings,"  are  not  duress; 
but  a  threat  of  forcible  eviction  from  premises  has  been  held  to  be  duress." 

EASEMENTS,  bb 


§  1.  Xatnre  and  Creation. — Grant;  Impli- 
cation;   Estoppel;    Prescription. 

§  2.  Location,  Maintenance  and  Extent  of 
Right. 

§  3.     Transfer    and    Assignment. 


§  4.  Extinguishment  and  Revival. — Limi- 
tations in  Grant;  Abandonment;  Merger; 
Adverse  Possession. 

§  5.     Obstractlon  and  Remedies. 


§  1.  Nature  and  creation.  Creation  hy  grant.^^ — In  construing  an  am- 
biguous grant  of  a  right  of  way  of  adjoining  owners,  obscure  or  ambiguous  expres- 
sions will  be  interpreted  to  fulfill  the  common  purposes  of  the  grantors.     The  deed 


42.  Code  Civ.  Proc.  §  1600.  provides  that 
as  against  heirs  damages  shall  run  from  the 
husband's  death;  as  against  others,  from  de- 
mand— Gorden  v.  Gorden,  80  App.  Div.  (N. 
Y.)    258. 

43.  Code  Civ.  Proc.  tit.  13 — In  re  Dahl- 
man's  Estate   (Mont.)   72  Pac.  750. 

44.  Are  barred  in  15  years — Winchester 
V.  Keith.   24  Ky.  L.  R.  1033,  70  S.  W.  664. 

45.  Comp.  Laws,  §§  8639,  8918.  9714.  9751. 
Such  action  may  be  brought  within  15  years 
after  the  decree  of  divorce — Moross  v.  Mo- 
ross   (Mich.)    93  N.  TV.   247. 

46.  Brumback  v.   Brumback,   198   111.    66. 

47.  Spratt  v.   Lawson    (Mo.)    75   S.  W.    642. 

48.  Omission  to  negative  loss  of  plain- 
tiff's inchoate  interest  in  the  property,  by 
execution  or  other  judicial  sale,  or  by  her 
own  relinquishment,  does  not  prevent  her 
from  demurring  to  an  answer  setting  up  ad- 
verse possession  as  a  defense — Lucas  v. 
Whitacre   (Iowa)   96  N.  TV.  776. 

49.  The  recovery  back  of  money  paid  un- 


der  duress   will  be   treated  In  Implied   Con- 
tracts. 

50.  Arrest  on  a  charge  of  bastardy  will 
not  invalidate  a  settlement — Jones  v.  Peter- 
son, 117  Ga.  58. 

51.  Bogue  V.   Franks,   199  111.    411. 

52.  A  statement  to  defendant  that  he  was 
liable  to  imprisonment  because  his  note  had 
no  revenue  stamps  attached  to  it  does  not 
invalidate  a  renewal  note — Reichle  v.  Ben- 
tele,  97  Mo.  App.  52. 

53.  Threat  to  issue  execution  on  a  dis- 
puted judgment  does  not  invalidate  secur- 
ity thereupon  given — Dispeau  v.  First  Nat. 
Bank,    24  R.  I.   508. 

54.  Iowa  Sav.  Bank  v.  Frink  (Neb.)  92  N. 
W.    916. 

55.  See  articles  Adjoining  Owners  for 
easement  of  lateral  support.  Highways  and 
streets  for  establishment  of  highway  by 
prescription.  See,  also.  Licenses  to  enter 
on   Land,    Waters  and   Water   Supply. 

56.  Evidence    held    sufficient    to    establish 


CREATION. 


963 


if  joint  will  be  regarded  as  the  several  grant  of  each  owner.'''  A  right  of  way 
granted  need  not  be  described  or  definitely  located.^^  A  deed  conveying  "rights, 
privileges,  advantages,  hereditaments,  and  appurtenances,"  passes  an  easement 
over  an  adjacent  alley.^^ 

Negative  easements. — Where  the  owners  of  a  portion  of  a  building  make  a 
mutual  covenant  that  no  change  in  the  front  or  main  entrance  shall  be  made  with- 
out mutual  consent,  they  create  a  negative  easement.®" 

Public  easements. — "V\Tiere  a  strip  of  land  is  conveyed  as  a  private  easement 
or  for  street  purposes  only,  no  interest  greater  than  an  easement  is  conveyed,®^  so 
a  deed  conveying  to  a  city  "a  perpetual  easement  for  the  purpose  of  a  public  levee*' 
conve3^s  nothing  but  an  easement  to  the  city  and  the  grantors  retain  the  fee,  to- 
gether with  such  right  of  possession  and  beneficial  use  as  is  not  inconsistent  with 
an  exercise  of  the  rights  granted  the  city,®^  and,  on  an  unwarranted  lease  of  the 
lots  by  the  city,  may  maintain  an  action  against  the  lessee  for  possession.®^  An 
express  covenant  to  dedicate  for  public  highway  purposes  a  portion  of  the  premises 
embraced  in  a  deed  gives  the  grantor  a  right  in  common  with  the  general  public 
to  use  the  strip  as  a  public  highway  and  insist  that  it  be  kept  open  as  a  means  of 
access  to  his  premises  though  the  dedication  is  not  accepted  by  the  proper  local 
authorities ;  and  an  intention  to  create  a  private  right  of  way  appurtenant  to  the  re- 
maining premises  of  the  grantor  is  not  shown.®* 

Implication  from  necessity. — The  grant  of  an  easement  by  implication  does 
not  arise  for  convenience,  but  only  from  necessity.®"  A  right  to  quarry  carries  the 
right  to  use  the  land  over  the  stone  as  far  as  necessary  to  make  the  right  avail- 
able.«« 

A  right  of  way  of  necessity  based  on  an  estoppel  is  not  an  interest  or  right  in 
land  which  entitles  the  holder  to  compensation  on  the  taking  of  the  land  for  a 
public  improvement.®^ 

Sever-ance  of  title  after  creation  of  servitude. — If  the  owner  of  land  effects  an 
advantage  for  one  portion  as  against  another,  the  grantees  of  the  several  portions 
on  severance  of  the  ownership  take  charged  with  the  easements  and  entitled  to 
the  benefits  visibly  attached  at  the  time  of  severance,®^  and  where  the  owner  of 
tv;o  adjoining  tracts  of  land  sells  one,  the  purchaser  takes  in  the  same  manner 
as  against  the  tract  retained,®®  and  where  the  owner  of  two  adjoining  lots  conveys 
one  on  which  a  building  has  been  erected  encroaching  on  the  other  with  the  "im- 


a  rig-ht   of  way   based   on   a  deed  which   had 
been  destroyed — Bright  v.  Allan,  203  Pa.  386. 

57.  Atlantic  City  v.  New  Auditorium  Pier 
Co.,  63  N.  J.  Eq.  644. 

58.  Lease  conferring-  a  right  of  access  to 
a  water  front  regarded  as  sufficiently  defi- 
nite to  show  a  right  of  access  to  the  lessor's 
dock  which  was  the  only  water  front  which 
he  owned  and  was  separated  from  the  leased 
premises  merely  by  a  private  drive-way — 
Stolts  V.   Tuska,   76  App.  Div.    (N.   Y.)   137. 

59.  Lowenberg  v.  Brown,  79  App.  Div.  (N. 
Y.)   414. 

60.  First  Nat.  Bank  v.  Portsmouth  Sav. 
Bank,    71    N.   H.    547. 

61.  Lott  V.  Payne   (Miss.)   33  So.   948. 

62.  63.  Sanborn  v.  Van  Duyne  (Minn.)  96 
N.   W.    41. 

64.  Allen  V.  Lester,  81  App.  Div.  (N.  T.)" 
376. 

65.  Easement  of  way  over  other  land  of 
owner  does  not  arise  unless  necessary  to 
reach  that  sold— In  re  City  of  New  York,  83 
App.  Div.  (N.  Y.)  513;  In  re  East  142d  St.,  83 
App!   Div.    (N.  Y.)    430. 


66.  Bedford-Bowling  Green  Stone  Co.  v. 
Oman,  73  S.  W.   1038,  24  Ky.  L.  R.   2274. 

67.  In  re  East  142d  St.,  S3  App.  Div.  (N. 
Y.)    430. 

68.  Fremont,  E.  &  M.  V.  R.  Co.  v.  Gay- 
ton  (Neb.)  93  N.  W.  163.  During  his  life 
time  a  testator  owning  lands  between  cer- 
tain highways,  kept  open  a  passage  from  his 
dwelling-house  to  each  of  such  highways; 
by  his  will  he  divided  his  land  into  two 
tracts,  giving  one  to  each  of  his  sons,  the 
passage  or  roadway  going  through  each  of 
such  tracts.  Held,  that  the  sons  were  char- 
ged with  the  reciprocal  easement — Winne 
V.  "Winne,  40  Misc.  (N.  Y.)  435.  Where  the 
owner  of  lots,  after  erection  of  a  house  on 
one,  constructs  a  sewer  across  the  others  to 
a  public  sewer,  on  severance  of  the  owner- 
ship of  the  lots,  an  easement  in  the  use  of 
the  sewer  arises  In  favor  of  the  purchaser  of 
the  lot  on  which  the  house  is  located.  Un- 
der Civ.  Code,  §§  1084,  1104 — Jones  v,  San- 
ders, 138  Cal.  405.  71  Pac.  506. 

69.  Where  the  owner  constructs  a  dfi 
across  a  stream  on  one  tract  causingr  flou  - 


o^4  EASEMENTS.  §  1 

provements,  easements,  rights,  and  privileges  thereto  appurtenant,"  he,  and  those 
claiming  under  him,  cannot  secure  the  removal  of  the  encroachment/"  but  an 
encroachment  by  an  owner  on  an  adjoining  lot  of  which  he  is  an  owner  in  common 
does  not  become  an  easement  after  a  sale  of  the  house  and  lot  and  acquisition  by 
the  former  owner  of  title  in  severalty  to  the  adjoining  lot." 

A  husband,  by  joining  with  his  wife  in  a  conveyance  of  a  lot  owned  by  her 
adjacent  to  one  owned  by  him,  does  not,  if  he  does  not  join  in  the  covenants,  create 
an  easement,  authorizing  the  continuance  of  an  encroachment  on  his  lot  by  a  house 
erected  on  the  wife's  lot.^'  ^  v    ^4.  ? 

Creation  by  estoppel  Description  in  conveyance. — A  right  of  way  is  recog- 
nized by  acceptance  of  a  deed,  specifically  reserving  it  to  the  grantor.''' 

While  in  most  conveyances  where  an  easement  passes  as  an  appurtenance  to 
the  grant  it  is  referred  to  as  a  boundary  or  in  specific  terms  in  the  deed,  that  is 
not  essential;^*  hence,  the  fact  that  a  description  does  not  refer  to  an  alley-way 
alono-  the  boundary  of  a  lot  does  not  show  an  intention  to  discontinue  the  use  of 
such  alley-way,  and  if  it  is  shown  in  a  map  which  is  referred  to  as  evidencing  the 
description,  an  easement  therein  passes,"  though  the  map  was  not  filed  until  after 
the  execution  of  the  deed.'^^  After  transfer  of  both  title  and  possession,  the  grantor 
cannot  create  an  easement  by  mere  declarations."  Where  a  lot  is  described  as 
fronting  on  a  strip  reserved  for  a  street,  the  grantee  acquires  a  private  right  of 
way,^^  but  an  implied  covenant  for  a  right  of  way  will  not  arise  out  of  a  false  de- 
scription.'^* 

The  act  of  a  city  in  accepting  a  plat  or  excluding  an  alley  shown  thereon  from 
the  city  limits  has  no  bearing  on  the  right  of  a  purchaser  of  one  of  the  platted 
lots  to  use  an  alley  shown  on  the  plat  as  appurtenant  to  his  land,  the  plat  having 
been  recorded  by  the  owner.®"* 

Though  an  easement  of  way  may  be  created  only  by  grant  or  by  prescription, 
a  purchaser  of  lots  may  recover  for  breach  of  a  contract  by  the  vendor  to  make 
certain  streets  in  case  the  purchaser  should  erect  a  house,  since  the  right  to  use 
the  contemplated  ways  arises  from  an  implied  covenant  on  the  part  of  the  grantors 
that  the  ways  are  in  existence  and  defendants  are  estopped  to  deny  such  fact.*^ 

Where  after  a  mortgage  is  executed  the  lands  are  platted,  a  release  of  one  of 
\he  lots  describing  it  by  metes  and  bounds  and  its  plat  number  does  not  carry 
with  it  the  easements  to  use  the  private  roads  described  in  the  plat  nor  do  they 
pass  as  appurtenant.*^ 


age  of  a  portion  of  the  other  tract,  there  Is, 
on  a  sale  of  the  servient  tract,  an  implied 
contract  that  the  mutual  benefits  and  servi- 
tudes shall  remain — Znamanacek  v.  Jelinck 
(Neb.)    95  N.  W.   28. 

70.  Frizzell  v.  Murphy,  19  App.  D.  C.   440. 

71,  73.     Farley  v.  Howard,  172  N.  Y.  628. 

73.  Morrison  V.  Chicago  &  N.  W.  Ry.  Co., 
117  Iowa,  587. 

74,  75,  76.  Lowenberg  v.  Brown,  79  App. 
Div.    (N.   Y.)    414. 

77.  Land  conveyed  was  described  by  ref- 
erence to  a  plat,  and  both  in  the  deed  and 
on  the  plat  was  a  statement  that  certain 
streets  were  referred  to  and  shown  for  con- 
venience of  description  only  and  not  with 
intent  to  convey  them  or  dedicate  them  to 
public  use.  Held,  that  a  subsequent  state- 
ment of  the  grantor  that  such  reservation 
was  not  intended  to  restrict  the  free  and  un- 
interrupted use  of  said  streets  by  the  gran- 
tee for  the  purpose  of  ingress  and  egress 
to  and   from  any  of  the  building  lots  would 


operate  to  create  a  way  by  estoppel,  ex- 
tending only  to  allow  the  use  by  the  lot 
owner  of  the  street  on  which  his  lot  abutted 
so  far  as  to  enable  him  to  reach  the  next 
open  street,  but  would  give  him  no  ease- 
ment over  other  streets  designated  on  the 
map — In  re  East  142d  St.,  83  App.  Div.  (N. 
Y.)  430;  In  re  City  of  New  York,  83  App. 
Div.    (N.  Y.)    513. 

78.  Teasley  v.   Stanton,   136   Ala.   641. 

79.  Lots  described  as  fronting  on  a  strip 
of  land  reserved  for  a  street  but  shown  by 
the  description  by  metes  and  bounds  as  well 
as  statements  of  facts  to  be  some  105  ft. 
distant  from  such  reserved  strip — Teasley 
V.   Stanton,   136  Ala.  641. 

80.  Douthitt  V.  Canaday,  24  Ky.  L.  R. 
2159,  73   S.   "W.  757. 

81.  Drew  v.  Wiswall  (Mass.)  67  N.  E.  666. 

82.  The  metes  and  bounds  excluded  the 
only  road  touching  the  lot — Queens  County 
Sav.  Bank  v.  Hudson,  83  App.  Div.  (N.  Y.) 
629. 


§2 


PRESCRIPTION.    LOCATION  AND  EXTENT. 


96S 


Creation  hy  prescription. — An  easement  may  be  established  by  open,  visible, 
continuous  and  undisputed  user  during  the  statutory  period.^^  Such  user  will  be 
presumed  to  be  under  a  claim  or  assertion  of  right  and  adverse,  and  not  by  leave 
or  favor  of  the  owner,^^  User  must  be  exclusive,  adverse,  uninterrupted,  and  in- 
consistent with  the  rights  of  the  owner  to  its  use  and  enjoyment.®^  It  must  be 
adverse  and  not  permissive.^^  Use  by  the  public  negatives  the  presumption  of  a 
grant.^^  A  license  will  not  furnish  a  basis  for  a  prescriptive  easement.**  There 
must  be  a  claim  of  right  known  to  the  adverse  party*^  with  the  acquiescence  of  the 
owner  of  the  land.®"  Facts  rendering  it  necessary  that  opposing  claimant  should 
have  known  of  the  assertion  of  title  may  remove  the  necessity  of  showing  actual 
knowledge.®^  There  need  not  be  a  positive  prohibitive  act  in  order  to  show  lack 
of  acquiescence  preventing  a  claimant  from  acquiring  a  right  of  way  by  prescrip- 
tion.''2 

The  adverse  user  must  not  only  be  continuous  in  point  of  time,  but  substan- 
tially identical  during  the  whole  of  the  statutory  period  with  regard  to  manner 
and  extent.®' 

Where  by  statute  it  is  required  that  there  must  be  other  evidence  of  adverse 
possession  of  an  easement  than  the  mere  use,  evidence  of  an  understanding  be- 
tween the  grantor  and  grantee  that  land  transferred  should  be  subject  to  a  way 
is  sufScient.®* 

§  2.  Location,  maintenance,  and  extent  of  right. — Where  right  of  way  has 
been  decreed,  the  location  need  not  be  expressly  designated  by  the  parties  but  it  is 
sufficient  that  there  be  acquiescence  in  the  use  of  a  particular  way.®^  A  deed,  if 
aptly  expressed,  may  gi-ant  a  new  location  of  an  easement  of  a  way  and  return  the 


83.  Use  of  an  alley — Lowenberg  v.  Brown, 
79  App.  Div.  (N.  Y.)  414.  Must  be  20  years 
use — Riehlman  v.  Field,  81  App.  Div.  (N.  Y.) 
526.  Use  of  a  well  defined  track  for  more 
than  21  years  to  reach  land  owned  by  the 
claimant  otherwise  inaccessible — Bates  v. 
Sherwood,   24   Ohio  Circ.   R.   146. 

84.  Winne  v.  Winne.  40  Misc.  (N.  Y.)  435. 
No  objection  or  assertion  of  dominion  to  the 
contrary  being  shown — Hey  v.  Collman,  78 
App.  Div.   (N.  Y.)    584. 

85.  Exclusive  use  by  defendant  of  an  al- 
ley way  for  more  than  twenty  years  ex- 
cept for  swinging  window  blinds  which 
opened  into  the  alley  from  complainant's 
property  is  not  sufficient  to  establish  an 
easement  by  prescription  in  complainant — 
Jesse  French  Piano  &  Organ  Co.  v.  Forbes, 
135   Ala.    277. 

86.  Use  of  a  sluice  way  under  a  railroad 
bridge  by  an  adjoining  property  owner  as  a 
pass  way  for  cattle  during  the  statutory 
period  of  limitations — Chicago,  B.  &  Q.  R. 
Co.  V.  Ives,   202  111.   69. 

87.  Reed  v.  Garnett  (Va.)  43  S.  B.  182. 
Evidence  held  insufficient  to  show  that  way 
was  used  under  a  lease  in  its  inception  and 
hence  not  adverse — Hey  v.  Collman,  78  App. 
Div.   (N.  Y.)    584. 

88.  License  to  use  land  for  a  private  way, 
no  rights  being  asserted  in  connection  with 
the  use  and  no  consideration  paid  or  value 
parted  with  on  the  faith  that  the  license 
was  perpetual — Kibbey  v.  Richards,  30  Ind. 
App.  101.  Use  of  way  in  common  with  pub- 
lic not  shown  to  be  under  an  independent 
claim  of  right  is  regarded  as  exercised  un- 
der an  implied  license — Reed  v.  Garr.ett 
(Va.)  43  S.  E.  182.  Permissive  connection 
of  private  pipes  with  a  railroad  water  main 


for  more  than  fifteen  years  does  not  show 
an  easement — Louisville  &  N.  R.  Co.  v.  Dick- 
ey, 24  Ky.  L.  R.  1710,  72  S.  W.  332. 

89.  Use  by  complainant  of  an  alley  way 
which  was  not  exclusive  or  inconsistent 
with  defendant's  rights — Sharpe  v.  Marcus 
(Ala.)   33   So.  821. 

90.  Use  of  a  way  together  with  the  pub- 
lic is  insufficient,  though  such  use  is  great- 
er than  the  usual  public  use  and  accompa- 
nied by  occasional  repairs — Reed  v.  Garnett 
(Va.)    43   S.   E.    182. 

91.  An  instruction  that  possession  to  be 
adverse  must  have  been  asserted  with  the 
knowledge  and  acquiescence  of  the  oppos- 
ing claimant  is  not  erroneous  if  given  in 
connection  with  an  instruction  that  actual 
knowledge  need  not  be  shown  if  there  are 
facts  such  that  the  opposing  claimant  should 
have  known  of  the  assertion  of  title — Allen 
V.  McKay   (Cal.)    70  Pac.   8. 

92.  Denial  of  the  existence  of  a  right  of 
way  and  threats  to  close  It  up  before  the 
expiration  of  twenty  years  from  the  time  of 
the  first  claim  held  sufficient — Reed  v.  Gar- 
nett  (Va.)    43  S.   E.  182. 

93.  That  one  seeking  to  acquire  an  ease- 
ment for  the  purpose  of  maintaining  a  ditch 
may  have  had  a  ditch  somewhere  on  the 
land  for  ten  years,  does  not  give  him  a 
right  to  maintain  it  in  a  new  location,  or 
use  an  extension  thereof  made  within  that 
period — Dunn  v.  Thomas  (Neb.)  96  N.  W. 
142. 

94.  Code,  §  3004 — O'Reagan  v.  Duggan, 
117  Iowa,    612. 

9.5.     Evidence   held   to   show   a  definite  se-  . 
Ipction — Dickinson    v.    Crowell    (Iowa)    94   N. 
W.    495. 


966 


EASEMENTS. 


§3 


site  of  the  old  waj  to  the  owners  of  the  fee/^  but  the  conveyance  cannot  be  effectual 
for  one  purpose  and  not  the  other.^'' 

Ways  of  necessity. — Where  a  right  of  way  arises  from  necessity,  it  must  be 
chosen  at  such  place  as  is  reasonably  necessary.®^  The  choice  must  be  such  as  to 
injure  the  grantees  of  other  portions  of  the  property  as  little  as  possible.^*  The 
fact  that  the  way  is  impassable  during  a  portion  of  the  year  will  not  allow  it  to 
be  widened.^ 

Extent  of  use} — Nothing  passes  as  incident  to  a  grant  of  a  right  of  way  ex- 
cept what  is  reasonable  to  the  fair  enjoyment  thereof.^  If  appurtenant  to  certain 
land  it  cannot  be  used  for  the  benefit  of  other  land.*  The  purposes  of  use  need 
not  exist  at  the  time  of  the  original  grant,**  unless  the  burdens  are  increased.^ 

§  3.  Transfer  and  assignment. — "\\Tiere  an  easement  is  conveyed  by  deed  and 
the  habendum  runs  to  the  heirs  and  assigns  of  the  grantee,  the  easement  runs  with 
the  land/  An  easement  may  pass  to  the  successors  in  title  to  the  dominant  estate, 
though  the  conveyance  by  which  it  is  created  contains  no  words  of  assignability.* 
It  need  not  be  especially  mentioned  to  pass  with  the  conveyance  of  the  dominant 
tenement.^  An  easement  to  pump  water  from  an  adjacent  owner's  lands  so  long 
as  a  mine  on  a  leasehold  is  operated  is  an  easement  appurtenant  to  the  mine  and 
passes  to  a  purchaser  of  the  mining  company's  interest.^"  An  easement  of  way  is 
assignable.^^  The  assignee  of  an  easement  does  not  take  subject  to  his  grantor's 
liabilities  to  perform  duties  pertaining  thereto.^* 

Judicial  or  tax  sale. — Easements  appurtenant  pass  imder  a  sheriff's  deed  on 
foreclosure  without  express  mention.^^     An  easement  of  way  passes  by  a  deed  of 


96,  97.  Atlantic  City  v.  New  Auditorium 
Pier   Co.,   63  N.   J.   Bq.   644. 

98.  Right  arising  from  a  sale  of  stand- 
ing timber  on  land  not  bordering  on  a  high- 
way to  pass  over  other  land  of  the  vendor, 
does  not  afford  the  purchaser  choice  of  any 
way  he  wishes,  though  it  affords  a  reason- 
able means  of  egress  and  Ingress  and  is 
commonly  used  by  others — Worthen  v.  Gar- 
no,    182   Mass.    243. 

99.  Where  a  right  of  way  was  granted 
for  access  to  a  dock.  If  the  dock  is  subse- 
quently leased  by  the  grantor  to  two  other 
persons  in  severalty  and  at  different  times, 
the  grantee  of  the  easement  must  confine 
his  right  of  way  to  that  portion  of  the  dock 
last  alienated,  if  it  is  sufficient — Stolts  v. 
Tuska,   76  App.  Div.    (N.  Y.)    137. 

1.  "Way  16  ft.  wide  used  for  25  years.  Im- 
passable during  a  large  part  of  the  year  on 
account  of  moisture — Dudgeon  v.  Bronson, 
159   Ind.    562. 

2.  Evidence  held  not  to  show  an  excess- 
ive use  of  an  easement  of  way — Weed  v. 
McKeg,   79  App.  Div.    (N.  T.)    218. 

3.  The  grantee  of  a  strip  of  land  for  a 
right  of  viray  has  no  right  to  construct  em- 
bankments in  such  a  manner  as  to  injure 
an  irrigation  ditch  where  suflJicient  soil 
could  be  obtained  to  raise  the  way  to  a 
height  protecting  it  from  overflowing  with- 
out encroaching  on  or  damaging  the  ditch — 
Hotchkiss  V.  Toung,  42  Or.   446,   71   Pac.   324. 

4.  A  railroad  owning  a  lot  abutting  on  a 
private  alley  appurtenant  thereto  which  oc- 
cupies such  lot  for  a  freight  depot,  is  not 
entitled  to  insist  on  the  alley  being  kept 
open  for  public  use  in  approaching  its  pas- 
senger station  located  on  a  lot  not  abutting 
on  such  alley — West  v.  Louisville  &  N.  R. 
Co.    (Ala.)    34    So.    852. 


5.  Right  to  cart  clay  is  not  limited  to 
beds  open  at  the  time  of  the  grant  but  ex- 
tended to  those  subsequently  opened — Perth 
Amboy  Terra  Cotta  Co.  v.  Ryan,  68  N.  J. 
Law,   474. 

6.  Where  a  common  stairway  and  area 
is  established  by  owners  of  adjoining  build- 
ings one  of  the  parties  cannot  interfere  with 
the  light  in  the  other's  windows  by  changes 
in  the  stairway  or  use  the  neighbor's  walls 
for  support  of  new  landing,  subjecting  the 
area  to  an  additional  use  by  persons  going 
to  additional  stories  erected  on  his  build- 
ing— Allegheny  Nat.  Bank  v.  Reighard,  204 
Pa.  391. 

7.  Conveyance  of  a  house  and  lot  with 
easement  to  a  door-yard — Deavitt  v.  Wash- 
ington County  (Vt.)  53  Atl.  563.  Convey- 
ance of  upland  with  privileges  on  waters  of 
adjacent  lake — Mitchell  v.  D'Olier,  68  N.  J. 
Law,    375,   59   L.   R.   A.   949. 

8.  Easement  of  way  to  a  stone  quarry 
created  by  writing  under  seal  and  reserv- 
ing a  right  in  the  grantor  to  re-enter  on 
termination  of  the  use  of  the  road  and 
working  of  the  quarry — Stovall  v.  Coggins 
Granite  Co.,   116  Ga.   376. 

9.  Mitchell  v.  D'Olier,  68  N.  J.  Law,  375, 
59    L.    R.    A.    949. 

10.  Featherston  Min.  Co.  v.  Young  (Ga.) 
45    S.  E.   414. 

11.  Perth  Amboy  Terra  Cotta  Co.  v.  Ryan. 
68   N.   J.   Law,    474. 

12.  Assignee  of  an  easement  to  maintain 
a  canal  not  liable  for  breach  of  assignor's 
covenant  to  maintain  a  dam  which  was  the 
condition  of  the  grant — Barringer  v.  Vir- 
ginia Trust  Co.,    132   N.  C.   409. 

13.  Easements  of  way — Richmond  v.  Ben- 
nett,  205  Pa.  470. 


TRANSFER.      EXTINGUISHMENT. 


%7 


foreclosure,  though  created  after  the  execution  of  the  mortgage.^*  A  sheriff's  sale 
for  taxes  does  not  discharge  an  easement.^^ 

§  4.  Extinguishment  and  revival.  Limitations  in  grant. — A  water  privilege 
granted  to  a  mining  company  operating  on  an  adjacent  leasehold,  to  continue  as 
long  as  the  company  shall  mine  iron  ore  and  use  water  from  said  location,  termi- 
nates on  the  removal  of  the  washer  to  an  adjoining  mine,^*  A  right  of  way  to 
remove  timber  sold  granted  to  continue  for  a  specified  time,  does  not  continue  for 
the  removal  of  other  timber  after  the  expiration  of  the  time  limit.^'' 

A  proviso  on  grant  of  a  new  right  of  way  to  a  city  that  a  former  way  shall 
revert  to  the  grantors  on  acceptance  and  record  of  the  deed  does  not  postpone  the 
acquisition  of  the  right  to  the  new  site  until  the  city  has  passed  a  formal  resolu- 
tion of  acceptance.^® 

Termination  of  necessity. — An  easement  of  way  granted  for  the  purpose  of 
enabling  access  to  certain  land  is  not  a  way  of  necessity  which  becomes  extinct  on 
the  acquirement  of  another  means  of  access.^* 

Abandonment. — A  right  of  way  conveyed  by  grant  does  not  become  extinct 
by  mere  nonuser,^"  hence,  the  allowance  of  an  arch  over  a  way  does  not  consti- 
tute an  abandonment  by  the  grantee  of  rights  above  such  arch.^^  An  easement 
does  not  expire  merely  because  not  mentioned  in  a  deed  of  conveyance  forming  a 
portion  of  the  chain  of  title.^^ 

Unauthorized  use  will  not  extinguish  an  easement  in  fee.^' 

Merger. — Where  the  owner  of  the  servient  estate  purchases  the  dominant  es- 
tate the  easement  is  merged  and  a  subsequent  sale  of  the  dominant  estate  does  not 
revive  the  easement  in  the  absence  of  an  express  creation  thereof,^*  though  there 
may  be  a  revivor  by  a  subsequent  conveyance  of  the  two  estates  to  different  parties, 
and  where  the  transferees  of  the  servient  estate  take  jointly  with  the  owners  of 
the  dominant  estate,  they  will  be  held  to  have  taken  subject  to  the  easement  if 
visibly  in  use.^^  A  way  of  necessity  so  merged  does  not  revive  on  severance  of 
the  estates  but  a  new  way  is  implied  if  the  necessity  continue.^*  If  the  owner  of 
a  portion  of  the  servient  estate  acquires  the  easement  there  is  a  merger  only  to 
the  extent  of  his  interest.^'^ 

Conveyance  of  servient  estate. — The  purchaser  of  a  servient  estate  is  charged 
with  notice  by  open  and  visible  use  of  the  easement.^®  He  is  not  protected  by 
recording  acts,^®  Constructive  notice  arises  from  record  of  a  lease  referring  to 
the  easement,^"  or  from  a  partition  decree  establishing  it.^^  One  claiming  an  ease- 
ment is  not  estopped  by  silence  at  a  public  sale  of  the  land,^^  nor  does  a  convey- 


14,  15.     Richmond  v.   Bennett,   205  Pa.    470. 

16.  Featherston   Min.   Co.   v.   Young    (Ga.) 

45    S.    E.    414. 

17.  Leigh  V.  Garysburg  Mfg.  Co.,  132  N. 
C.  167. 

18.  Atlantic  City  v.  New  Auditorium  Pier 
Co.,  63   N.  J.  Eq.   644. 

19.  20.  Perth  Amboy  Terra  Cotta  Co.  v. 
Ryan,    68   N.   J.    Law,    474. 

21.  The  grant  conveyed  "free  and  perfect 
egress  and  ingress"  over  an  alley  and  it 
was  held  that  the  allowance  of  the  arch  was 
a  mere  non-user — Weed  v.  McKeg,  79  App. 
Div.    (N.   Y.)    218. 

22.  Richmond  V.  Bennett,   205   Pa.   470. 

2.3.  Deavitt  v.  "Washington  County  (Vt.) 
53  Atl.   563. 

24.  Easement  of  way  to  spring  acquired 
by  prescription  originally — Riehlman  v. 
Field,   81   App.   Div.    (N.  Y.)    526. 


25.  Easement  in  a  hall-way — Wettlaufer 
V.  Ames  (Mich.)   94  N.  W.  950. 

26.  Bates  V.  Sherwood,  24  Ohio  Circ.  R. 
146. 

27.  Barringer  v.  Virginia  Trust  Co.,  132 
N.  C.  409. 

28.  Use  of  irrigating  ditch  for  six  years — 
Croke  v.  American  Nat.  Bank  (Colo.  App.) 
70    Pac.    229. 

29.  Easement  of  way,  physically  defined 
and  apparent  arising  from  prescription — 
Hey  v.  Collman,   78  App.  Div.    (N.  Y.)    584. 

30.  Lease  granting  a  right  of  way  to  a 
water  front  and  dock — Stolts  v.  Tuska,  76 
App.  Div.    (N.  Y.)   137. 

31.  Though  the  deeds  make  no  mention 
thereof,  a  right  of  way  may  be  so  estab- 
lished— Dickinson  v.  Crowell  (Iowa)  94  N. 
W.    495. 

32.  Hey  V.  Collman,  78  App.  Div.  (N.  Y.) 
584. 


968 


EASEMENTS. 


§5 


ance  with  covenants  of  seisin  and  right  to  convey  without  reservation  of  an  ap- 
parent easement  estop  the  claiming  of  the  easement  by  a  person  not  a  party  to  the 
deed  or  in  privity  with  the  grantee.^^ 

If  on  severance  of  ownership  of  lots  jointly  subject  to  an  easement  for  a  sewer 
an  intermediate  vendee  executes  a  grant  of  the  easement  to  his  vendee,  such  grant 
is  conclusive  evidence  of  his  knowledge  of  the  existence  of  the  easement,  and  it  is 
immaterial  whether  it  is  known  to  those  holding  the  grant  as  security  only.^* 

Adve7'se  possession. — \\Tiere  a  way  has  been  acquired  by  prescription,  adverse 
possession  to  defeat  it  must  be  equivalent  to  that  barring  all  rights  of  entry  on 
realty.^^  The  fact  that  a  portion  of  an  alley-way  is  closed  up  by  a  prior  convey- 
ance does  not  show  an  intention  to  close  the  entire  alley.^® 

§  5.  Obstruction  and  remedies. — An  easement  of  way  and  of  light  and  air 
may  be  violated  though  the  use  for  a  way  is  not  hindered.^^  If  there  is  an  ease- 
ment of  way,  an  adjoining  owner  on  building  a  projection  over  such  way  must 
construct  it  at  such  height  as  not  to  interfere  with  the  convenient  use  of  the  way 
by  the  grantee.^^ 

Laches,  estoppel,  or  acquiescence. — Where  defendants  have  gone  ahead  over 
plaintiff's  objection  under  a  theory  that  they  are  acting  within  their  legal  rights, 
they  cannot  claim  that  they  have  been  misled  by  plaintiff  so  that  he  is  estopped.^** 
There  is  no  acquiescence  to  an  obstruction  where,  at  the  time  it  is  begun,  the 
o^vner  of  the  easement  objects  and  begins  a  suit  for  injunction  within  a  week,*" 
nor  is  plaintiff  barred  by  laches  when  he  objects  when  the  encroachment  is  begun 
but  does  not  bring  an  action  until  the  obstruction  is  completed.*^ 

Who  may  enforce. — Where  one  of  adjacent  owners  abandons  his  right  of  way 
common  to  several  adjacent  lots,  he  cannot  enjoin  an  appropriation  of  the  way  by 
adjacent  owners  where  it  is  contiguous  to  their  land.*^ 

Demand. — Before  action  can  be  brought  to  establish  a  way  of  necessity,  com- 
plainant must  show  a  request  of  the  owner  to  locate  the  way  and  either  a  failure 
to  do  so  or  an  unreasonable  location,  and  in  the  event  of  the  failure,  that  com- 
plainant has  established  a  location.*^ 

Form  of  remedy. — "\Miere  an  easement  is  obstructed  the  obstruction  may  be 
removed  by  the  person  injured  if  he  can  do  it  peaceably.**  The  owner  of  the  ease- 
ment cannot  bring  ejectment  or  trespass  to  try  title  against  the  owner  of  the  fee 
who  is  rightfully  in  possession.*^  Equity  has  jurisdiction  to  prevent  interference 
with  easements,*®  and  a  complainant  may  have  equitable  relief  though  his  title 


33.  Easement  of  right  to  carry  water  in 
an  irrigation  ditch — Croke  v.  American  Nat. 
Bank   (Colo.  App.)   70  Pac.   229. 

34.  Jones  v.  Sanders,  138  Cal.  405,  71  Pac. 
506. 

35.  Clay  V.  Kennedy,  24  Ky.  L,.  R.  2034, 
72  S.  "W.  815.  Easement  of  free  passage  over 
a  bridge  barred  by  continuous  denial  and 
compulsion  of  payment  of  toll  daily  for  12 
years — Dupont  v.  Charleston  Bridge  Co.,  65 
S.    C.    524. 

36.  Lowenberg  v.  Brown,  79  App.  Div. 
(N.    Y.)    414. 

37.  Erection  of  smoke  stack  darkening 
windows  and  heating  the  air  in  an  alley 
mutually  reserved  by  adjoining  owners — St. 
Louis  Safe  Deposit  &  Sav.  Bank  v.  Kennett 
Estate   (Mo.   App.)    74   S.   W.    474. 

38.  Construction  of  a  projection  from  a 
building  at  a  height  of  9  ft.  above  an  alley, 
and  a  construction  at  a  less  height  with  an 
excavation  of  the  existing  surface  to  make 
It  9  ft.,  held  an  unlawful  trespass — Weed  v. 
McKeg,  79  App.  Div.   (N.  Y.)    218. 


39.  St.  Louis  Safe  Deposit  &  Sav.  Bank  v. 
Kennett  Estate   (Mo.  App.)   74  S.  W.   474. 

40.  Weed  V.  McKeg,  79  App.  Div.  (N.  T.) 
218. 

41.  Erection  of  smoke  stack  where  de- 
fendants have  advised  plaintiff  that  he  has 
no  right  to  object  and  have  suffered  no  dam- 
age through  the  delay — St.  Louis  Safe  De- 
posit &  Sav.  Bank  v.  Kennett  Estate  (Mo. 
App.)    74   S.  W.   474. 

42.  Where  an  avenue  thirty  feet  wide 
was  abandoned  and  enclosed  by  the  owners 
of  lots  fronting  on  it.  one  of  such  owners 
cannot  enjoin  the  erection  of  a  building  by 
another  owner  on  a  portion  of  the  strip 
on  which  his  lot  fronts — Tremberger  v. 
Owens,    80  App.   Div.    (N.    Y.)    594. 

43.  Thomas  v.  McCoy,   30  Ind.  App.   555. 

44.  Keplinger  v.  Woolsey  (Neb.)  93  N. 
W.    1008. 

45.  Cornick  v.  Arthur  (Tex.  Civ.  App.)  73 
S.    W.    410. 

46.  Obstruction  of  right  to  carry  water 
in    an    irrigation    ditch — Croke    v.    American 


§  1 


EJECTMENT. 


969 


has  not  been  adjudicated  at  law,  where  it  is  clear  and  such  that  in  a  trial  at  law 
the  judge  would  not  be  warranted  in  submitting  the  question  to  the  jury.*^  The 
remedy  may  be  by  injunction.** 

Pleading. — A  bill  to  restrain  obstruction  of  an  easement  must  show  the  exist- 
ence thereof.*^  A  complaint  is  sufficient  which  states  ownership  of  an  easement 
without  stating  how  it  was  acquired.^"  In  a  proceeding  to  establish  a  way  of  neces- 
sity, the  complaint  must  contain  a  particular  description  of  the  route  selected.^^ 

Damages.^^ — Exemplary  damages  may  be  awarded  for  destruction  of  an  ease- 
ment under  statutory  provisions  allowing  such  damages  for  malicious  or  oppressive 
breach  of  noncontractual  obligations.^^  On  obstruction  of  a  way,  the  measure  of 
damages  is  the  difference  in  the  rental  value  of  the  dominant  estate.^* 

Review. — Wliere  negative  easements  are  partially  extinguished,  a  question  of 
whether  further  encroachment  will  be  restrained  becomes  one  of  fact.^'  On  seek- 
ing to  restrain  the  use  of  an  easement  on  the  ground  that  it  is  more  burdensome 
to  the  servient  estate,  it  must  be  alleged,  in  order  that  such  fact  be  considered  on 
appeal,  that  the  taking  of  the  dominant  estate  for  a  jail  site  made  an  easement 
of  door  yard  more  burdensome.^* 

EJECTMENT,  bt 


§  1.  Cause  of  Action. — Property  Recover- 
able; Title  of  Plaintiff;  Seizin  of  Plaintiff; 
Ouster  by  Defendant;  Property  Taken  for 
Public  Use. 

§  3.  Defenses. — Rightful  Possession;  In- 
junction; Limitations  and  Laches. 

§   3.      Partie-s. 

§  4.  Pleading. — Complaint  or  Petition; 
Plea  or  Answer;  Variance. 

§  5.  Evidence. — Burden  of  Proof;  Com- 
mon Source;  Admissibility;  Sufficiency. 


§  e.  Trial  and  Judgment.— Instructions; 
Taking  Cases  From  the  Jury;  Conformity  of 
Judgment  with  Pleadings  and  Evidence;  Re- 
lief Granted;  Effect;  Writ  of  Possession. 

§  7.     Receiversliip  In   E^jectment. 

§  8.     IVew  Trial. 

§  9.  Mesne  Profits  and  Damages. — Neces- 
sity of  Demanding;  Persons  Liable;  Amount; 
Set-Off;  Measure  of  Damages. 

§  10.  Allowance  for  Improvements  and 
E^xpenditnres. 


§  1.  CaiLse  of  action. — The  right  to  maintain  ejectment  may  be  removed  by 
statutory  provisions  for  other  remedies.^*  In  Georgia,  the  right  to  maintain  an 
action  in  the  common-law  form  of  ejectment  has  not  been  removed  by  statutes  de- 
fining the  form  and  character  of  pleadings  nor  by  the  general  judiciary  act.°® 

Property  for  which  action  lies. — Mining  rights  appurtenant  to  land  cannot 
be  recovered  in  ejectment.®" 


Nat.  Bank  (Colo.  App.)  70  Pac.  229.  To  re- 
strain obstruction  of  a  right  of  way  though 
the  exact  width  and  particular  location  is 
not  definitely  fixed  if  the  existence  of  a  right 
of  way  of  a  certain  width  is  admitted  by  the 
answer — Bright  v.  Allan,   203  Pa.   386. 

47.  Obstruction  of  way — Richmond  v. 
Bennett,  205  Pa.  470. 

48.  Keplinger  v.  Woolsey  (Neb.)  93  N.  W. 
1008;  St.  Louis  Safe  Deposit  &  Sav.  Bank  v. 
Kennett  Estate    (Mo.  App.)   74  S.  W.  474. 

49.  Bill  held  demurrable  which  asserts 
possession  of  land  carrying  with  it  the 
easement  by  adverse  possession,  where  the 
instrument  pleaded  as  color  of  title  did  not 
comprehend  within  its  boundaries  the  ditch 
in  which  the  easement  was  claimed,  or  show 
that  complainant's  user  of  the  ditch  was  ad- 
verse or  under  the  grantee — Overtlon  v. 
Moseley,  135  Ala.  599. 

50.  Carter  v.  Wakeman,  42  Or.  147,  70 
Pac.   393. 

51.  Thomas  v.  McCoy.   30  Ind.   App.   555. 

52.  See  article  Damages  for  general  ques- 
tions. 

53.  Civil    Code,    §    3294.      Action    for    de- 


struction of  a  sewer — Jones  v.  Sanders,   138 
Cal.    405,    71   Pac.   506. 

54.  Though  the  dominant  estate  is  not 
rented — Hey  v.  Collman,  78'  App.  Div.  (N. 
Y.)    584. 

55.  Negative  easements  to  refrain  from 
changing  the  front  and  entrance  of  a  build- 
ing which  had  been  abrogated  as  to  a 
change  in  the  lower  story  of  the  building, 
but  it  was  sought  to  enjoin  a  change  in  the 
upper  stories — First  Nat.  Bank  v.  Ports- 
mouth Sav.  Bank,  71  N.  H.  547. 

56.  Deavitt  v.  "Washington  County  (Vt.) 
53   Atl.    563. 

57.  See,   also.    Trespass. 

58.  Under  Rev.  St.  D.  C.  §  482,  providing 
a  remedy  for  an  encroachment  of  less  than 
seven  inches  by  a  wall,  ejectment  cannot  be 
maintained  to  recover  an  inch  of  ground  oc- 
cupied by  an  encroachment  of  the  wall  of 
a  house  on  an  adjoining  lot — Frizzell  v. 
Murphy,  19  App.  D.  C.   440. 

59.  Judiciary  Act  1799 — Georgia  Iron  & 
Coal  Co.  V.  Allison,  116  Ga.  444. 

60.  An  instruction  that  plaintiff  may  re- 
cover    the     "mineral     Interest     and     mining 


970 


EJECTMENT. 


Title  of  phinfiff.—TlamtiS.  must  recover  on  the  strength  of  his  own  title." 
He  must  have  legal  title  at  the  time  action  is  brought.*'^'  An  equitable  title  will 
not  sustain  the  action^^  though  it  is  sujfficient  to  enable  the  maintenance  of  a 
suit  in  equity,  to  procure  legal  title.®*  A  title  based  on  equitable  estoppel  is  not 
sufficient,"^  and  plaintiif  cannot,  in  ejectment,  enforce  equities  against  a  grantee 
in  good  faith  holding  the  legal  title,^®  but  a  corporation  which  has  acquired  pos- 
session of  land  in  payment  of  stock  subscriptions  has  an  equitable  title  allowing 
it  to  maintain  ejectment  without  joining  the  holders  of  the  legal  title.®'' 

The  holder  of  a  vendor's  lien  may  maintain  an  action  in  equity  to  dispossess 
a  third  person  in  possession,  though  it  has  made  a  conveyance.®* 

A  tenant  in  common  may  bring  ejectment  against  third  persons.®^  One  who 
has  a  mere  easement  cannot  bring  ejectment  against  the  rightful  possession  of  the 
fee  owner.^®  A  devisee  may  prosecute  ejectment  during  the  pendency  of  probate 
proceedings.'^  The  holder  of  the  duplicate  final  receipt  of  the  receiver  of  the 
United  States  land  office  for  a  homestead  entry  may  bring  ejectment."  Where 
it  appears  that  plaintiff  holds  the  legal  title  charged  with  certain  payments  to  de- 
fendants, he  need  not  make  payment  or  tender  before  bringing  his  action,  but  the 
equities  may  be  adjusted  at  the  trial  either  by  pa3Tnent  of  the  money  into  court 
or  by  a  conditional  verdict."  A  minor  whose  property  has  been  illegally  seized 
and  sold  as  that  of  another  person  may  ignore  the  sale  and  institute  a  petitory 
action  for  its  recovery .''* 

A  grant  under  which  title  is  claimed  from  the  state  must  be  registered  at  the 
time  action  is  begun.  Registry  before  trial  is  not  sufficient,'"^  and  a  curative  stat- 
ute allowing  the  registry  of  grants  within  a  certain  time,  though  the  time  orig- 
inally fixed  for  their  register  may  have  expired,  does  not  alter  the  rule  that  plain- 
tiff must  show  title  in  himself  at  the  commencement  of  the  suit." 

Sufficiency  of  mere  prior  possession. — The  rule  varies.  In  some  jurisdictions 
plaintiff  must  have  more  than  a  mere  possessory  right,''  though  defendant  is  only 
a  trespasser;"  in  others,  prior  possession  is  sufficient  as  against  a  trespasser,'^  and 
in  such  case  possession  sufficiently  establishes  title,*"  and  evidence  thereof  is  suffi- 
cient to  throw  the  burden  of  establishing  a  superior  title  on  defendant,  though  it 
is  not  averred  that  he  is  a  trespasser.*^     In  a  petitory  action  in  Louisiana,  a  de- 


rights"  is  erroneous,  since  such  rights  must 
include  incorporeal  hereditaments  lying  in 
grant  but  not  in  seisin,  such  as  rights  of 
way  over  the  surface,  the  right  to  dig  and 
drive  slopes  and  entries  and  the  like — Lou- 
isville  &  N.   R.   Co.   V.   Massey,    136   Ala.    156. 

61.  As  against  defendant's  possession, 
plaintiff  must  show  a  better  muniment  of 
title  or  acquisition  of  title  by  adverse  pos- 
session— Jackson  Lumber  Co.  v.  McCreary 
(Ala.)    34  So.   850. 

62.  Where  defendant's  grantor  acquired 
a  legal  title  through  a  foreclosure,  plaintiff 
who  had  taken  title  as  co-tenant  with  such 
grantor  subject  to  the  trust  deeds  which 
were    foreclosed    cannot    bring    the    action — 

V.  Thompson.  173  Mo.  595. 

Nalle  V.  Parks.  173  Mo.   616. 

Nalle   V.   Thompson,    173   Mo.   595. 

Harrison  v.  Alexander,  135  Ala.   307. 

Equities  arising  from  a  statement  in 
a  deed  that  the  grantor  was  a  trustee  for 
plaintiff — De  Lassus  v.  Winn  (Mo.)  74  S.  W. 
635. 

67.  McCandless  v.  Inland  Acid  Co.,  115 
Ga.   968. 

68.  Miller  v.  Farmers'  Bank,  25  Ky.  L. 
R.   373,   75   S.   W.   218. 

69.  Shelton   v.    Wilson,    131    N.    C.    499. 


Nalle 
63. 
64. 
65. 
66. 


70.  Cornick  v.  Arthur  (Tex.  Civ.  App.) 
73  S.  W.   410. 

71.  Beer  v.  Plant  (Neb.)   96  N.  W.  348. 

72.  McClung  V.   Penny    (Okl.)    70   Pac.   404. 

73.  Howard  v.  Murray,   203   Pa.   464. 

74.  Jewell  V.   DeBlanc    (La.)    34   So.    787. 

75.  Morehead  v.  Hall,  132  N.  C.   122. 

76.  Acts  1901.  c.  175 — Morehead  v.  Hall, 
132   N.   C.    122. 

77.  Must  show  legal  title  and  presump- 
tion of  grant  does  not  arise  from  possession 
— Cahill  V.  Cahill,  7^  Conn.  522. 

78.  Under  Shannon's  Code  Tenn.  §§  5000, 
5001,  plaintiff  must  show  a  perfect  legal 
title  either  by  conveyances  by  the  state  or 
by  completed  adverse  possession — Stockley 
V.  Cissna  (C.   C.  A.)   119  Fed.   812. 

79.  One  who  on  the  face  of  the  county 
records  has  color  of  title,  is  regarded  as 
the  owner  in  the  neighborhood  where  it 
lies,  pays  the  taxes  for  many  years,  dis- 
poses of  the  hay  or  other  products,  is  re- 
garded as  ir,  such  actual  possession  as  will 
maintain  the  action — Robinson  v.  Gantt 
(Neb.)  95  N.  W.  506.  Petition  held  sufficient 
to  show  prior  possession — Watkins  v.  Nugen 
(Ga.)   45  S.  E.   260. 

80.  81.  Horton  v.  Murden  (Ga.)  43  S.  ES. 
786. 


§2 


DEFENSES. 


971 


fendant  may  compel  his  adversary  to  produce  another  than  a  title  radically  null 
before  ouster  can  be  decreed,  even  under  the  rule  possideo  qua  possideo.^^ 

Eecovery  cannot  be  had  on  prior  possession  as  against  one  who  enters  under 
a  valid  deed  from  one  in  possession,  though  such  possessor  had  no  title,  unless  it 
is  shown  that  defendant  had  knowledge.  The  rule  is  otherwise  where  the  deed  is 
void.®' 

Rights  arising  from  mortgages. — After  condition  broken,  the  mortgagee  may 
bring  ejectment,^*  and  the  trustee  in  a  trust  deed  may  proceed  without  a  demand 
for  possession.®^  While  the  mortgage  debt  is  not  paid,  action  will  not  lie  against 
a  mortgagee  in  possession  though  foreclosure  is  barred  by  limitation.^®  If  neces- 
sary parties  are  not  joined  on  foreclosure,  the  purchaser  cannot  bring  ejectment.®^ 

Seisin  of  plaintiff. — Plaintiff's  title  must  be  connected  with  the  possession.®* 
Seizure  and  possession  within  the  limitation  act  is  shown  by  legal  title  in  the 
absence  of  evidence  of  an  actual  adverse  possession.®*  An  heir  may  recover  on  the 
prior  possession  of  his  ancestor.®" 

Oiister  hy  defendant. — Ejectment  will  not  lie  against  one  not  in  possession,®^ 
or  after  an  abandonment  of  possession,  where  there  is  no  assertion  of  title,®^  but 
it  may  be  maintained  against  a  tax  title  claimant  under  a  void  tax  deed,  who  has 
not  had  actual  possession.®'  Persons  having  an  easement  of  way  are  not  in  such 
possession  of  the  strip  so  used  as  to  warrant  ejectment  being  brought  against 
them,®*  unless  they  take  exclusive  possession  and  exclude  the  owner  of  the  fee.®" 

Public  or  quasi  public  use. — Where  land  has  been  occupied  by  a  tram  road 
without  power  of  eminent  domain,  it  may  be  recovered  in  ejectment,®'  but  if  a 
city  takes  possession  of  property  appropriated  for  a  local  improvement  without 
paying  the  compensation,  the  owner  is  not  entitled  to  the  remedy.®'^  Grantors  who 
have  conveyed  to  a  city  an  easement  for  levee  purposes  in  certain  lots  may,  on 
an  unwarranted  lease  of  the  lots  by  the  city,  maintain  arv  action  against  the  lessee 
for  possession.®® 

Taxation  of  land  as  estoppel  of  state. — A  state  or  municipality  is  not  estopped 
from  maintaining  ejectment  by  the  fact  that  it  has  levied  taxes  on  the  land,®® 

§  2.  Defenses. — An  equitable  defense  cannot  be  asserted  in  ejectment,^  so 
an  equitable  estoppel  cannot  be  urged.^     Where  resulting  trusts  are  abolished  by 


82.  Granger  v.  Sallier  (La.)   34  So.  431. 

83.  As  based  on  an  immoral  consideration 
— Watkins  v.  Nugen   (Ga.)    45  S.  E.   260. 

84.  Bradfield  v.   Hale,    67    Ohio   St.    316, 

85.  Brown  v.  Schintz,   203   111,  136. 

86.  Action  by  heirs  at  law  of  a  deceased 
mortgagor — Kelso  v.  Norton,  65  Kan.  778,  70 
Pac.    896. 

87.  One  who  has  conveyed  with  cove- 
nants of  freedom  from  encumbrances  cannot 
on  purchase  at  foreclosure,  in  which  his 
vendee  is  not  joined,  bring  ejectment 
against  the  vendee  in  possession,  since  he 
takes  before  an  assignment  of  the  mortgage 
— Titcomb  V.  Fonda,  J.  &  G.  R.  Co.,  38  Misc. 
(N.   T.)    630. 

88.  Plaintiff  must  show  a  regular  chain 
of  title  back  to  some  grantor  in  possession 
or  to  the  government — Jackson  Lumber  Co. 
V.   McCreary    (Ala.)    34  So.   850. 

89.  Code  Civ.  Proc.  Alaska,  c.  2,  §  4,  pro- 
vides that  plaintiff  or  one  of  his  predeces- 
sors in  title  must  be  seized  or  possessed  of 
the  premises  within  ten  years  before  com- 
mencement of  an  action  to  recover  real 
property  or  the  possession  thereof — Tyee 
Consolidated  Min.  Co.  v.  Langstedt  (C.  C. 
A.)    121    Fed.   709. 

90.  It    must    be    shown    that   the    ancestor 


was  In  possession  at  the  date  of  his  death 
under  a  bona  fide  claim  of  right — Watkins 
V.  Nugen  (Ga.)   45  S.  E.  260. 

91.  Doggett  V.  Hardin,    132   N.   C.    690. 

92.  A  defendant  who  on  vacating  a  house 
had  locked  all  the  doors  but  one  on  the  in- 
side, leaving  the  keys  inside,  and  closed  the 
remaining  door  by  a  spring  lock,  keeping 
no  key,  is  not  in  possession  authorizing 
ejectment — Connor  v.  Connor  (Mich.)  96  N. 
W.    441. 

93.  Dunbar  v.  Lindsay  (Wis.)  96  N.  W. 
557. 

94. 
95. 

96.  Hughey  v.  Walker  (Ark.)  73  S.  W. 
1093. 

97.  Appropriation  authorized  in  Rev.  St.  § 
2232 — Webber  v.  Toledo,  23  Ohio  Circ.  R.  237. 

98.  Sanborn  v.  Van  Duyne  (Minn.)  96  N. 
W.   41. 

99.  Levy  of  taxes  on  wharves  in  a  river 
— Turner  v.  Mobile,   135  Ala.   73. 

1.  Action  by  a  purchaser  at  a  tax  sale 
cannot  be  defended  against  on  the  ground  of 
his  Incapacity  to  purchase — Graham  v.  War- 
ren  (Miss.)   33  So.  71. 

2.  Grubbs  v.  Boon,  201  111.  98;  Haney  v. 
Breeden  (Va.)   42  S.  E.  916.     Action  based  on 


Davis  v.  Morris,  132  N.  C.  435. 
Lott  V.   Payne   (Miss.)    33   So.  948. 
Hughey    v.    Walker    (Ark.)    73    S. 


972 


EJECTMENT. 


§3 


statnte,  except  in  favor  of  creditors,  a  defendant  in  ejectment  cannot  show  that 
plaintiff  holds  as  a  resulting  trustee  for  a  third  person,  unless  defendant  is  a 
creditor  of  such  person.'  In  case  plaintiff  fails  to  prove  a  valid  title,  defendants 
need  not  establish  their  title.* 

Rightful  possession  under  a  lease  with  option  to  purchase  will  defeat  eject- 
ment.^ 

Removal  into  equity.  Injunction. — Equity  will  not  take  jurisdiction  to  pre- 
vent a  multiplicity  of  suits  where  a  plaintiff  basing  his  right  on  the  same  title, 
brings  separate  actions  against  numerous  defendants  who  hold  distinct  portions 
of  the  land  under  different  titles,  and  who  are  without  privity  with  each  other.^ 
An  ejectment  suit  cannot  be  enjoined  for  reasons  which  may  be  set  up  as  a  de- 
fense in  the  action,''  and  a  city  cannot  have  an  action  of  ejectment  against  it  to 
recover  shore  lands  on  a  river,  removed  into  equity,  where  it  contends  that  it  has 
a  right  to  control  certain  wharves  and  lots  by  immemorial  usage  and  custom,  since 
such  contention,  if  established,  furnishes  a  complete  and  adequate  defense  to  the 
action  of  ejectment.® 

Limitations  and  laches. — Title  by  adverse  possession  affords  a  good  defense 
to  ejectment.®  The  action  is  not  barred  in  a  time  shorter  than  the  period  pre- 
scribed by  statute.^" 

§  3.  Parties. — The  person  in  possession  is  a  necessary  party  where  ejectment 
is  used  to  try  a  question, of  title  asserted  by  one  not  in  possession.^^  In  ejectment 
by  a  claimant  under  a  single  title,  aU  those  in  possession  of  the  land  should  be 
joined  though  they  claim  distinct  tracts  under  separate  titles,^^  One  alleged  to 
be  in  possession  jointly  with  claimants  under  an  agreement  with  them  is  properly 
made  a  co-defendant.^^  A  railroad  which  allows  another  railroad  to  operate  over 
a  rio-ht  of  way  originally  obtained  by  it  is  not  a  necessary  defendant.^*  An  ad- 
ministrator who  is  not  in  possession  of  land  and  has  not  been  directed  by  the 
court  to  take  possession  cannot  defend  an  action  of  ejectment  and  is  not  a  proper 
party.^^  One  who  has  sold  the  land  in  controversy  cannot  intervene  in  ejectment 
to  which  the  purchaser  is  not  a  party  and  in  which  the  vendor's  title  is  not  at- 
tacked."    Where  on  the  declaration,  made  by  the  party  against  whom  a  petitory 


breach  of  condition  In  a  deed  against  the 
erection  of  a  particular  kind  of  building 
cannot  be  defended  on  the  ground  that  the 
grantor  with  knowledge  and  without  pro- 
test permitted  the  erection  of  such  a  build- 
ing— Wakefield  v.  Van  Tassell,    202   111.   41. 

3.  One  holding  as  purchaser  at  a  judicial 
sale  cannot  show  that  the  plaintiff  held  title 
for  the  judgment  debtor — Pfeffer  v.  Kling, 
58  App.  Div.   (N.  Y.)    179. 

4.  Sinclair  v.   Huntley,    131   N.   C.    243. 

5.  Tyson  v.  Neill   (Idaho)    70  Pac.  790. 

6.  Turner  v.  Mobile,  135  Ala.  73. 

7.  Bill  to  enjoin  ejectment  and  set  aside 
a  deed  to  plaintiff  on  the  ground  that  the 
grantor  was  insane,  cannot  be  maintained — 
Larson  v.  Larson    (Miss.)    33   So.   717. 

8.  Turner  v.   Mobile,  135  Ala.   73. 

9.  Baty  V.  Elrod  (Neb.)  97  N.  W.  343. 
Prescription  under  color  of  title — Ballard  v. 
James   (Ga.)   45  S.  E.  68. 

10.  Prior  to  such  time  the  action  cannot 
be  held  to  be  on  a  stale  claim — Craig  v. 
Conover,   24  Ky.  L.  R.   1682,   72  S.  W.   2. 

11.  Comp.  Laws,  §  10950,  permits  an  ac- 
tion of  ejectment  for  such  purpose — Far- 
rand  V.  Kavanaugh   (Mich.)    93  N.  W.   1083. 

12.  Lewis  V.   Hlnson,   64  S.   C.   571. 

13.  Complaint  by  the  Cherokee  Nation  al- 
leging   that   a   third    person    pursuant    to    an 


agreement  with  the  claimants  to  citizenship 
in  the  Nation  holds  the  land  jointly  with 
the  claimants  is  suflScient  to  authorize  mak- 
ing such  third  person  a  defendant  under 
Mansfield's  Dig.  §  4940;  Ind.  Ter.  Ann.  St. 
1899,  §  3149,  allowing  joinder  of  persons 
claiming  adverse  interests  or  who  are  nec- 
essary parties  to  a  complete  determination 
— Hargrove  v.  Cherokee  Nation  (Ind.  T.)  69 
S.  W.   823. 

14.  Construing  Ejectment  Act,  §§  17,  18; 
2  Starr  &  C.  Ann.  St.  (2d  Ed.)  pp.  1610,  1614, 
providing  for  the  making  of  the  landlord 
defendant  in  an  action  against  the  tenant — 
Chicago  &  E.   I.  R.  Co.  v.  Clapp,   201  111.   418. 

15.  Rev.  St.  Fla.  §  1917 — Finlayson  v. 
Love   (Fla.)    33  So.   306. 

16.  On  ejectment  for  the  possession  of  a 
portion  of  lands  originally  belonging  to  the 
Cherokee  Nation,  the  Nation  cannot  be  per- 
mitted to  come  in  under  Mans.  Dig.  §  4946 
(providing  for  intervention  by  "any  person 
having  an  interest  in  the  property")  and 
seek  judgment  for  possession,  improvements 
and  back  rents,  on  the  grounds  that  the  im- 
provements -were  made  on  the  land  bj'  de- 
fendant's grantor  under  claim  of  citizenship, 
that  such  claim  was  adjudged  void  and  the 
improvements  sold  by  the  Nation  to  plain- 
tiff's grantor,  which  sale  carried  with  it  the 


§  4 


FLBADENG. 


973 


action  is  brought,  that  he  is  a  mere  lessee,  the  lessor  is  brought  into  the  action, 
the  latter  is  the  real  defendant,  he  is  a  warrantor  only  in  a  qualified  sense.^^ 

§  4.  Pleading.  Complaint  or  petition. — In  an  action  of  ejectment  in  the 
common-law  form,  an  abstract  of  the  title  relied  on  need  not  be  attached  to  the 
declaration.^^  Evidence  of  the  truth  of  plaintiff's  allegation  of  ownership  need 
not  be  set  out  in  the  petition.^®  Where  the  action  may  be  brought  on  an  equitable 
title,  the  nature  of  the  equity  need  not  be  stated  in  the  complaint  if  from  the 
record  evidence  introduced  an  ex  parte  correction  of  defects  therein  would  be  made 
by  the  court.^"  In  jurisdictions  allowing  equitable  defenses,  on  an  action  by  the 
holder  of  the  legal  title  for  lands  as  an  entirety,  it  is  not  necessary  that  he  state 
equities  in  defendant.^^ 

An  allegation  that  plaintiffs  were  placed  in  possession  by  a  former  owner  is 
suificient.^^  In  South  Carolina,  it  is  not  necessary  that  the  complaint  allege  a 
right  to  immediate  possession  in  addition  to  an  allegation  of  ownership  and  un- 
lawful possession  of  defendants  and  a  refusal  on  their  part  to  surrender.^' 

Allegations  that  plaintiff  has  a  lawful  title  and  that  defendants  are  unlaw- 
fully withholding  possession  are  not  demurrable  as  conclusions  of  law,^*  but  if 
from  the  facts  pleaded  it  is  shown  that  an  allegation  of  ownership  is  an  unwar- 
ranted conclusion  of  law,  the  complaint  is  demurrable.^" 

A  complaint  specifying  the  nature  of  defendant's  title  to  be  under  a  pre- 
tended deed  executed  by  plaintiff,  which  plaintiff  avers  that  he  never  executed 
or  delivered,  but  that  he  is  and  has  been  at  all  times  the  owner  in  fee  simple  of 
the  premises,  is  not  demurrable  as  stating  an  equitable  cause  of  action.^^ 

The  fact  that  the  prayer  is  only  for  damages  is  not  ground  for  demurrer,  if 
the  complaint  shows  a  cause  of  action  for  recovery  of  possession. ^'^ 

The  petition  may  be  amended  so  as  to  conform  to  the  evidence  and  properly 
describe  the  land  sought  to  be  recovered,  even  after  trial  and  verdict.^®  The  com- 
plaint cannot  be  amended  so  as  to  seek  to  enforce  an  equitable  lien.^® 

Plea  or  answer. — An  answer  is  sufficient  which  denies  that  plaintiff  at  the 
date  laid  in  the  declaration  or  at  any  other  time  was  possessed  or  entitled  to  the 
possession.^"    A  denial  of  plaintiff's  title  is  sufficient  as  against  a  demurrer.^^ 

Title  by  adverse  possession  to  be  a  defense  must  be  pleaded.^^  A  plea  that 
prior  to  the  date  laid  in  the  complaint,  defendant  had  acquired  title  by  adverse 


right  of  possession;  that  installments  of  the 
purchase  money  were  due  and  unpaid  and 
the  Nation  had  an  interest  in  the  improve- 
ments to  the  extent  of  the  deferred  pay- 
ments— Donohoo  V.  Howard  (Ind.  T.)  69  S. 
W.    927. 

17.  Jewell  V.  DeBlanc  (La.)  34  So.  787. 

18.  Civ.  Code,  §  5002,  concerning-  the  ac- 
tion for  recovery  of  lands  and  mesne  profits 
is  not  applicable — Georgia  Iron  &  Coal  Co. 
V.  Allison,  116  Ga.  444. 

19.  The  petition  which  alleges  that  plain- 
tiffs are  the  owners  and  entitled  to  posses- 
sion of  an  undivided  1-36  interest  of  the 
land  particularly  described  therein,  and  that 
the  defendant  was  wrongfully  withKoldlng 
possession  from  them  is  sufficient — Ander- 
son V.  Proctor  Coal  Co.,  25  Ky.  L.  R.  130,  74 
S.   W.    717. 

20.  Westfelt  V.  Adams,   131   N.   C.   379. 

21.  Under  Code,  1899,  c.  90,  §  9,  in  eject- 
ment against  a  co-tenant  having  an  equi- 
table interest  in  the  land  in  controversy, 
plaintiff  having  legal  title  need  not  mention 
such  equity  in  her  declaration — Parr  v.  Cur- 
rence  (W.  Va.)  44  S.  E.  184. 

22.  "Whether    plaintiffs    had    prior    posses- 


sion, were  tenants  at  will,  or  were  In  under 
a  mortgage,  whether  title  had  been  acquired 
under  the  mortgage  or  not — Horton  v.  Mur- 
den    (Ga.)    43  S.  E.   786. 

23.  Senterfeit  v.  Shealy,  66  S.  C.  384. 

24.  Livingston  v.    Ruff,    65   S.   C.    284. 

25.  Ely  V.  Azoy,  39  Misc.   (N.  T.)   669. 

26.  Evidence  that  the  deed  was  never  ex- 
ecuted or  delivered  is  admissible  in  eject- 
ment— Wisconsin  Lakes  Ice  &  Cartage  Co. 
v.  Pike  &  North  Lakes  Ice  Co.,  115  Wis.  377. 

27.  Livingston  v.  Ruff,   65  S.  C.   284. 

28.  •  Gushing  v.  Conness  (Neb.)  95  N.  W. 
855. 

29.  Complaint  by  a  creditor  against  one 
devisee  cannot  be  amended  to  seek  an  equi- 
table lien  on  the  entire  land  of  the  estate  to 
recover  against  all  heirs  and  devisees — 
Pinch   V.    Strickland.   132   N.    C.   103. 

30. 
548. 
31. 


Weeks   v.    Link,   137    Cal.    502,    70    Pac. 

Jones   V.   Griffin,   25   Ky.   L.   R.    117,   74 
S.   W.   713. 

32.  Code  Civ.  Proc.  §  437,  requires  the 
statement  of  any  new  matter  constituting  a 
defense — Allen  v.  McKay  (Cal.)  70  Pac.  8. 


974 


EJECTMENT. 


possession,  together  with  a  denial  of  plaintiff's  title  or  right  of  possession  as  ex- 
ecutor and  denials  of  his  executorship,  and  of  the  death  of  his  testator,  does  not 
deny  the  title  of  the  testator.^^ 

Under  a  general  denial,  a  partition  decree  between  the  parties  cannot  be  at- 
tacked on  the  ground  that  it  was  rendered  in  the  absence  of  defendant  and  not 
in  accord  with  views  previously  expressed  by  the  court.  ^* 

Wliere  defendants  set  up  a  tax  title  they  may  be  allowed  to  amend  by  specific- 
ally setting  forth  in  their  answer,  the  proceedings  in  the  tax  sale  and  the  manner 
in  which  title  became  vested  in  the  commonwealth." 

Effect  of  pleading. — A  plea  of  the  general  issue  is  a  waiver  of  a  disclaimer." 
Failure  to  serve  a  notice  to  quit  is  waived  by  an  answer  to  the  merits.'^ 

Variance^^  with  regard  to  immaterial  allegations  is  not  fatal.*'  An  admis- 
sion of  legal  title  in  plaintiffs  and  a  common  source  contained  in  defendant's 
answer  is  not  affected  by  an  immaterial  allegation  in  the  reply  that  plaintiffs 
claimed  through  a  person  named  as  devisee  of  the  common  source,  and  hence 
failure  of  the  evidence  to  show  that  plaintiff's  title  was  derived  through  such 
devisee  cannot  be  taken  advantage  of  by  the  defendants.**  Where  possession  as 
alleged  is  admitted,  it  cannot  be  shown  that  the  premises  are  unoccupied.*^ 

§  5.  Evidence.  Burden  of  proof. — The  burden  is  on  plaintiff  to  establish 
his  title  as  against  the  title  asserted  by  defendant.**  If  he  deraigns  title  through 
purchase  from  heirs,  he  must  establish  the  fact  of  heirship.*'  Where  a  boundary 
is  in  dispute,  he  has  the  biirden  of  establishing  encroachment  by  defendant,**  and 
if  defendant  has  occupied  for  more  than  the  time  requisite  to  acquire  title  by  ad- 
verse possession,  plaintiff  must  show  that  the  occupancy  was  not  adverse.*"  If 
the  parties  claim  under  conflicting  patents,  plaintiff  claiming  under  the  junior 
patent  must  establish  that  the  land  for  which  he  sues  is  within  lands  excepted  by 
the  senior  patent.*®  Since  one  taking  a  deed  from  a  widow  is  not  estopped  to  deny 
a  husband's  title,  where  she  is  not  one  of  the  heirs  or  devisees  of  the  husband, 
and  her  right  of  dower  has  not  been  assigned,  the  burden  is  on  plaintiff  to  show 
that  the  deed  covers  the  widow's  dower  interest.*'^ 

Presumption  of  a  sale  of  an  unlocated  head  right  certificate  may  arise  from 
continued  possession  under  a  claim  of  right  together  with  acts  of  ownership.*' 

Common  source  of  title. — Where  the  parties  claim  through  a  common  source, 
examination  of  the  title  back  of  such  source  is  unnecessary,*^  so  where  plaintiff 
brings  ejectment  as  trustee  against  the  mortgagor  and  his  tenants,  the  trust  deed 
stating  that  the  grantor  conveys  and  warrants  renders  unnecessary  proof  of  title  from 
the  government  there  being  an  affidavit  of  common  source.""     A  claim  under  a 


33.  Knight  v.  Denman  (Neb.)  94  N.  W. 
622. 

34.  Bartley  v.  Bartley,   172  Mo.   208. 

35.  Jones  V.  Griffin,  25  Ky.  L.  R.  117.  74 
S.  W.   713. 

36.  Danner  v.  Crew   (Ala.)    34  So.   822. 

37.  Action  by  the  Cherokee  nation  against 
non-citizens — Hargrove  v.  Cherokee  Nation 
(Ind.   T.)    69   S.    W.    823. 

38.  Defendant's  allegation  that  she  holds 
by  mesne  assignments  of  a  mortgage  does 
not  render  admissible  parol  evidence  that 
she  has  executed  an  assignment  of  the  mort- 
gage as  collateral  after  the  date  named  and 
had  received  a  re-assignment  on  repayment 
of  the  debt  secured — Barson  v.  Mulligan,  77 
App.  Div.   (N.  T.)   192. 

39.  Proof  that  legal  title  la  In  plaintiff 
and  declaration  that  plaintiff  was  an  ad- 
ministratrix— Richardson  v.  Biglane  (Miss.) 
33  So.  650. 


40.  Snyder  v.  Elliott,  171  Mo.  362, 

41.  Dunbar  v.  Lindsay  (Wis.)  96  N.  W. 
557. 

42.  Instruction  to  such  effect  held  proper 
— Finch  V.  Finch,  131   N.   C.   271. 

43.  Lochridge  v.  Corbett  (Tex.  Civ,  App.) 
73   S.   W.   96. 

44.  Harper  v.  Anderson,   132  N.   C.   89. 

45.  Burden  of  showing  that  occupancy  of 
land  by  a  widow  was  as  a  homestead  and 
not  adverse  to  the  heirs — Reno  v.  Blackburn, 
24  Ky.  L.  R.   1976,   72  S.  W.   775. 

46.  Virginia  Coal  &  Iron  Co.  v.  Keystone 
Coal  &  Iron  Co.   (Va.)   45  S.  E.  291. 

47.  Caudle   v.   Long,   132   N.    C.    675. 

48.  Lochridge  v.  Corbett  (Tex.  Civ.  App.) 
73   S.   W.   96. 

49.  Horswill  V.  Farnham  (S.  D.)  92  N.  W. 
1082. 

50.  Brown  v.  Schintz,  203  III.   136. 


§  ^ 


EVIDENCE. 


975 


decedent  and  a  claim  under  the  widow  will  be  presumed  to  be  through  a  common 
source,  where  b}'  statute  it  is  provided  that  in  the  absence  of  heirs  at  law  the  widow 
inherits  her  husband's  realty  in  fee.°^ 

The  effect  of  filing  an  affidavit  in  denial  of  an  affidavit  of  common  source 
filed  by  plaintiff  is  to  cast  on  plaintiff  the  burden  of  proving  both  his  own  and 
defendant's  chain  of  title  to  the  common  source/^  If  all  the  titles  held  by  one 
defendant  are  identical  in  origin  with  all  held  by  the  other  defendant,  they  claim 
through  a  common  source,  and  plaintiff  is  not  required  to  elect  under  statutes  re- 
quiring that  when  defendants  hold  under  different  sources,  plaintiff  shall  elect 
against  which  he  shall  proceed. ^^ 

Admissibility  of  evidence.^* — Evidence  offered  by  a  plaintiff  having  the  bur- 
den of  proving  defendant'.3  title  to  a  common  source  is  not  inadmissible  for  the 
reason  that  it  shows  defendant's  title  to  be  defective."  The  lesser  seal  of  the 
commonwealth  need  not  be  shown  by  a  land-office  copy  of  a  patent  to  be  attached 
to  the  original  to  render  it  admissible  in  ejectment.'**  Where  an  instrument  of  con- 
veyance has  been  lost,  possession,  acts  of  ownership,  and  other  circumstantial  proof 
may  be  offered."^  In  determining  the  question  of  whether  plaintiffs  have  had  suf- 
ficient possession  of  land  to  warrant  the  maintenance  of  ejectment,  the  manner  in 
which  owners  of  land  of  like  character  in  the  same  neighborhood  commonly  occupy 
and  use  such  lands  may  be  considered.^* 

Deeds  from  persons  not  asserted  by  the  pleadings  to  have  had  title  are  not 
admissible  by  plaintiff,^^  nor  is  a  deed  admissible  where  the  alleged  grantor  de- 
nies its  execution  and  there  is  no  evidence  of  delivery,**'  Evidence  in  support  of 
title  outside  of  that  shown  by  an  abstract  tendered,  if  admitted  without  objection, 
may  be  submitted  to  the  jury  though  there  is  a  statutory  provision  limiting  a  party 
in  ejectment  to  the  title  shown  by  the  abstract  tendered  by  him.*^ 

To  render  a  sheriff''s  deed  on  execution  sale  admissible,  the  essentials  to  its 
validity  must  first  be  shown.*^     A  sheriff's  deed  to  defendant  after  an  execution 


51.  Shannon's  Code,  S  4165 — Carver  v. 
MaxweU   (Tenn.)    71   S.  W.   752. 

52.  Bradley  v.  Lightcap,   201   111.   511. 

53.  Evidence  held  to  show  common 
source — Townsend  v.  Kreigh  (Mich.)  97  N. 
W.    46. 

54.  In  ejectment  by  the  husband  and  v/ife 
where  it  is  claimed  that  she  furnished  a 
portion  of  the  purchase  money,  evidence  as 
to  statements  made  by  the  wife  at  the  time 
she  furnished  a  particular  sum,  and  the  pur- 
pose for  which  it  was  furnished  is  admis- 
sible— Ray  V.  Long,  132  N.  C.  891.  Where 
plaintiff  is  claiming  title  through  a  head- 
right  certificate  a  petition  and  judgment  in 
favor  of  one  asserting  an  ownership  under 
the  same  right  as  plaintiff  is  admissible  as 
establishing  notoriety  of  an  adverse  claim 
and  if  plaintiff  claims  through  purchase 
from  the  heirs  of  the  owner  of  the  certifi- 
cate, the  inventory  and  appraisement  of 
such  owner's  estate  showing  the  certificate, 
an  order  of  court  authorizing  and  approv- 
ing its  sale,  and  an  administrator's  deed  re- 
citing a  purchase  by  the  decedent  from  the 
original  owner  are  admissible  as  muniments 
of  title  and  declarations  of  ownership — 
Lochridge  v.  Corbett  (Tex.  Civ.  App.)  73  S. 
W.  96.  In  ejectment  based  on  breach  of 
condition  of  a  trust  deed,  the  record  of  a 
judgment  in  a  chancery  action  between  the 
same  parties  finding  a  sum  due  on  the  note 
secured  by  the  trust  deed,  is  admissible 
though   a  writ  of  error  had  been  prosecuted 


from  the  decree  and  a  supersedeas  granted. 
The  original  notes  are  also  admissible  in 
evidence  though  they  have  been  merged  in 
a  decree  or  in  judgment — Brown  v.  Schintz, 
203  111.  136.  Where  plaintiff  claims  under  a 
deed,  a  mortgage  executed  by  the  heirs  of 
the  grantor  on  the  premises  is  admissible 
as  bearing  on  the  question  of  the  nature  of 
the  grantor's  subsequent  possession,  it  be- 
ing contended  that  the  property  had  re- 
verted to  the  grantor  by  failure  of  plaintiff 
to  comply  with  the  conditions  of  the  deed — 
First  Presbyterian  Church  v.  Elliott,  65  S.  C. 
251.  Where  ejectment  Is  based  on  breach 
of  a  condition  against  the  erection  of  a 
building  for  a  particular  purpose,  evidence 
as  to  the  business  and  property  interests  of 
the  grantors,  is  inadmissible — Wakefield  v. 
Van   Tassell,    202   111.   41. 

55.  Bradley  v.  Lightcap,  201  111.  511. 

56.  Virginia  Coal  &  Iron  Co.  v.  Keystone 
Coal   &  Iron   Co.    (Va.)    45  S.  E.   291. 

57.  The  acts  of  the  husband  and  of  the 
wife  in  relation  to  land  are  admissible  to 
show  in  which  one  of  them  was  the  posses- 
sion— Cahill  v.  Cahill,   75  Conn.   522. 

58.  Hanson  v.  Stinehoff,  139  Cal.  169,  72 
Pac.   913. 

59.  Hilllard  v.  Connelly,  21  Pa.  Super.  Ct. 
271. 

60.  Bynum  v.  Hewlett  (Ala.)   34  So.  391. 

61.  Code  1896,  §  1531 — Louisville  &  N.  R. 
Co.  V.  Massey,   136  Ala.   156. 

62.  Valid    judgment    and     execution,    the 


976 


EJECTMENT. 


§  6 


sale  on  a  judgment  against  plaintiff's  husband  is  inadmissible  where  it  is  not  con- 
tended that  the  husband  had  ever  had  title.^^ 

Sufficiency  of  evidence.^* — Wliere  plaintiff  was  entitled  to  possession  and  de- 
fendants were  unlawfully  withholding  at  the  time  action  was  brought,  plaintiff 
may  recover  on  proof  of  his  title  without  regard  to  the  date  of  the  ouster  or  the 
possession  at  any  time  prior  or  subsequent.®"  The  evidence  must  identify  and 
locate  the  lands  which  are  the  subject  of  controversy;*^^  documentary  evidence  of 
title  to  a  particular  strip  of  land  not  shown  to  be  the  land  described  by  metes 
and  bounds  in  the  complaint  is  not  sufficient.®'^  A  decree  divesting  the  title  of 
parties  to  land  in  controversy  and  vesting  it  in  one  through  whom  plaintiff  claimed  is 
not  a  sufficient  proof  of  title  in  the  absence  of  evidence  in  the  decree  or  otherwise 
as  to  who  were  the  parties  in  the  suit.®®  To  establish  title  under  an  oral  gift 
from  a  parent,  the  evidence  must  leave  no  room  for  reasonable  doubt.*®  Mere 
description  of  themselves  by  the  grantors  in  a  quitclaim  deed  as  heirs  of  a  person 
named  is  not  sufficient  to  establish  title  through  intestate  succession  from  such 
person.'^"  Evidence  of  a  possession  under  a  recorded  deed  prior  to  defendant's 
entry  authorizes  the  direction  of  a  verdict  in  the  absence  of  evidence  by  defend- 
ant.''^ Evidence  of  a  deed  to  plaintiff's  father  is  not  sufficient  in  the  absence  of 
possession  for  a  sufficient  length  of  time  to  ripen  a  title.'^^ 

§  6.  Trial  and  judgment.  Instructions. — Instructions  should  be  applicable 
to  the  issues,"^  Where  several  distinct  issues  are  submitted  to  the  jury,  an  in- 
struction requestiud  by  plaintiff  on  the  effect  of  certain  facts  as  barring  his  right 
of  action  should  be  limited  to  the  issue  of  limitations.''*  An  instruction  on  the 
effect  of  a  deed  as  color  of  title  in  defendant  is  not  harmful  when,  if  the  exist- 
ence of  the  deed  is  found,  defendant  is  entitled  to  a  verdict.''^  Wliere  only  an 
undivided  interest  is  sued  for  and  verdict  rendered  therefor,  a  general  charge  for 


jurisdiction  of  the  court  and  whether  de- 
fendant in  ejectment  was  the  party  against 
whom  the  judgment  was  rendered — Clem  v. 
Meserole  (Fla.)  32  So.  815.  Must  be  shown 
who  tlie  judgment  or  the  order  or  execution 
was  against,  or  whose  title  the  sheriffs  deed 
purported  to  convey  in  the  absence  of  evi- 
dence sufficient  to  show  a  claim  of  adverse 
possession — Bynum  v.  Hewlett  (Ala.)  34  So. 
391. 

63.  Finch  v.  Finch,  131  N.  C.  271. 

64.  To  establish  ownership — Baxter  v. 
Newell,  88  Minn.  110.  To  authorize  a  ver- 
dict finding  part  for  plaintiff  and  part  for 
defendant — Perry  v.  Saylor  (Ga.)  44  S.  E. 
993.  To  allow  submission  of  the  question  of 
forgery  of  a  deed — Larson  v.  Pederson,  115 
Wis.  191.  To  sustain  a  defense  based  on 
occupancy  of  land  under  a  parol  contract 
with  the  grand-parent  as  against  the  plain- 
tiff claiming  under  a  deed — Shroyer  v.  Smith. 
204  Pa.  310.  To  establish  title  under  a  gift 
— Ramey  v.  Crum,  24  Ky.  L.  R.  741,  69  S. 
W.  950.  To  show  entry  under  a  parol  gift 
by  a  parent  and  erection  of  improvements 
in  reliance  thereon — Goodin  v.  Goodin,  172 
Mo.  40.  To  show  title  by  inheritance  or 
through  a  decree  in  chancery  vesting  title 
in  a  partnership  under  which  plaintiff 
claimed — Stockley  v.  Cissna  (C.  C.  A.)  119 
Fed.  812.  To  show  that  one  through  whom 
plaintiff  claimed  died  at  such  date  as  to  pre- 
clude his  having  taken  as  an  heir — Peniston 
..  Schlude,  171  Mo.  132.  To  show  possession 
of  a  river  bed  vacated  by  diversion  of  the 
water    into    a   new   channel    at   the   time    de- 


fendants entered — Hanson  v.  Stinehoff,  139 
Cal.  169,  72  Pac.  913.  To  sustain  a  finding 
that  defendant  had  offered  to  pay  a  balance 
remaining  due  on  the  purchase  price  of  the 
premises — Belger  v.  Sanchez,  137  Cal.  614,  70 
Pac.  738. 

65.  Walton  v.  Wild  Goose  Min.  &  Trading 
Co.    (C.   C.  A.)   123  Fed.   209. 

66.  A  map  attempting  to  plat  land  lo- 
cated under  a  lake  is  not  sufficient  proof  of 
location  in  the  absence  of  any  showing  of  a 
survey — Webster  v.  Harris  (Tenn.)  69  S. 
W.    782,    59   L.   R.  A.    324. 

67.  Stoffelo  V.  Molina  (Ariz.)    71  Pac.   912. 

68.  Stockley  v.  Cissna  (C.  C.  A.)  119  Fed. 
812. 

69.  Claim  by  a  son  against  other  heirs — 
Goodin  v.  Goodin,  172  Mo.  40. 


70. 

812. 
71. 
72. 


Stockley  v.  Cissna   (C.  C.  A.)    119   Fed 


Wilcox  V.  Moore    (Ga.)    45  S.  B.   400. 
Possession  for  seven  years — Caudle  v. 
Long,   132  N.   C.   675. 

73.  An  instruction  on  adverse  possession 
by  defendants  ignoring  an  issue  of  co-ten- 
ancy and  failing  to  show  knowledge  of  the 
adverse  holding  on  the  part  of  plaintiff  ia 
erroneous — Parr  v.  Currence  (W.  Va.)  44  S. 
E.  184. 

74.  Defendant  claimed  title  by  deed  and 
also  by  adverse  possession — Pittman  v. 
Weeks,    132    N.    C.    81. 

75.  Though  the  defense  asserted  is  the 
20-year  limitation  and  not  the  7-year  limita- 
tion based  on  color  of  title — Pittman  v. 
Weeks,  132  N.  C.  81. 


§6 


JUDGMENT. 


977 


the  recovery  of  the  entire  land  is  harmless.^'  If  there  is  evidence  of  breach  of 
condition  of  a  deed,  an  instruction  as  to  the  effect  thereof  may  be  given.''^ 

Directing  verdict. — Under  a  declaration  charging  a  joint  holding,  a  verdict 
cannot  be  directed  on  evidence  that  defendant's  holding  was  not  joint.''*  A  ver- 
dict may  be  directed  against  defendant  who  has  asserted  an  entire  ownership 
though  a  deed  in  evidence  not  relied  on  by  him  in  his  pleadings  shows  that  he  is 
the  owner  of  a  tenth  interest.''* 

Conformity  of  pleadings,  evidence,  and  findings  with  judgment. — The  judg- 
ment must  conform  to  the  pleadings  and  evidence.***  If  defendants  set  up  com- 
plete performance  of  a  contract  of  purchase  and  pray  judgment  for  a  deed  from 
plaintiff  or  repayment  of  the  purchase  price  and  improvements,  a  judgment  that 
plaintiff  take  nothing,  that  defendants  go  without  day  and  recover  the  costs,  is 
erroneous.*^  Under  statutes  allowing  recovery  on  a  showing  of  a  possession  in 
defendant  and  a  right  to  possession  in  plaintiff,  findings  that  defendants  are  with- 
holding possession  and  that  plaintiffs  have  the  right  to  possession  will  support  a 
judgment  for  plaintiff  without  a  specific  finding  of  an  ouster.*^  Judgment  award- 
ing plaintiff  possession  cannot  be  rendered  on  findings  of  fact  not  showing  title 
in  plaintiff.*'  Where  the  judgment  conforms  to  a  particular  description  in  the 
petition  which  describes  a  piece  of  land  which  is  no  part  of  that  sought  to  be  re- 
covered, it  cannot  be  sustained,  though  there  is  a  general  description  of  the  land 
in  the  petition  which  is  correct.**  If  the  only  question  submitted  to  the  jury  is 
one  of  damages,  the  judgment  cannot  be  amended  to  conform  to  the  verdict  by 
striking  out  an  award  of  possession.*' 

A  written  disclaimer  is  necessary  before  a  judgment  can  be  rendered  in 
favor  of  defendant  if  his  defense  is  that  he  is  not  in  possession  or  claiming  title.*" 

Relief  granted. — Where  a  deed  is  not  void  on  its  face,  defendant  may  be 
required  to  deliver  it  up  for  cancellation.*^  In  ejectment  by  a  grantor  in  which 
he  tenders  a  deed  to  defendant,  the  court  may  render  a  decree  as  in  an  action 
for  specific  performance  allowing  the  defendant  to  take  the  deed  on  performance 
of  the  conditions.** 

Effect  of  judgment. — One  not  a  party  to  ejectment  who  does  not  appear  and 
who  is  not  vouched  in  is  not  bound  by  the  judgment.*' 


Danner    v.    Crew    (Ala.)    34    So.    822. 
First   Presbyterian  Church   v.   Elliott, 
C.    251. 
Townsend  v.  Krelgh  (Mich.)  94  N.  W. 

Inland    Acid    Co.,    115 


76 

77, 
65   S 

~^. 
732. 

.y.     McCandless 
Ga.    968. 

SO.  Value  of  use  of  a  party  wall  cannot 
be  included  In  the  Judgment  in  the  absence 
of  a  claim  therefor  or  evidence  of  use  by 
defendant — Alexander  v.  Parks,  24  Ky.  L. 
R.    2113,    72    S.   W.    1105. 

81.  Since  defendant  was  either  entitled 
to  a  decree  as  prayed  in  the  answer  or  not 
to  recover  at  all  and  if  it  was  found  that  a 
balance  remained  due  on  the  purchase  price, 
a  conditional  decree  should  have  been  ren- 
dered vesting  title  In  him  on  payment  of 
the  balance,  interest  and  costs — Chouteau 
Land  &  Lumber  Co.  v.  Chrlsman  (Mo.)  72 
S.  W.   1062. 

82.  Rev.  St.  1887,  par.  3139 — Curtig  v. 
Boqulllas  Land  &  Cattle  Co.  (Ariz.)  71  Pac. 
924. 

83.  Findings  that  defendant  delivered 
plaintiff's  grantor  a  deed  of  the  lands  and 
that  a  sheriff   delivered   a   deed   based   on   a 


sale  of  the  land  on  execution  are  not  suffi- 
cient— Wickersham  Banking  Co.  v.  Rice, 
137   Cal.   506,    70   Pac.   546. 

84.  Cushing  v,  Conness  (Neb.)  95  N.  W. 
855. 

85.  It  being  apparent  that  the  court 
found  for  plaintiffs  on  all  issues  not  sub- 
mitted to  the  jury — Barson  v.  Mulligan,  77 
App.    Div.    (N.    Y.)    638. 

86.  Judgment  should  not  be  rendered  on 
a  verdict  before  such  disclaimer  is  filed  if 
the  verdict  is  in  favor  of  defendant  on  the 
evidence  of  witnesses  that  defendant  w^as 
not  in  possession  or  claiming  title — Lehigh 
Valley  Coal  Co.  v.  Beaver  Lumber  Co.,  203 
Pa.   544. 

87.  Watkins  v.  Nugen  (Ga.)  45  S.  E. 
260. 

88.  Decree  held  to  be  based  on  sucH 
theory  which  allowed  a  railroad  company  to 
withdraw  a  deed  from  the  record,  which 
deed  conveyed  to  the  company  on  condition 
of  the  erection  of  a  station — Smith  v. 
Frankfort  &  C.  R.  Co.,  24  Ky.  L.  R.  2040,  72 
S.   W.    1088. 

89.  Ballard  v.  James   (Ga.)   45  S.  E.   68. 


Curr.   Law — 62. 


978 


EJECTMENT. 


§7 


Writ  of  possession,  supersedeas,  restitution. — Pa}Tnent  of  sums  had  by  plain- 
tiff under  the  contract  by  which  he  is  entitled  to  possession  may  be  exacted  before 
tlie  award  of  a  Avrit  of  possession.^"  ^Tiere  a  supersedeas  writ  is  illegally  issued 
restraining  a  writ  of  possession,  the  obligors  on  the  bond  are  nevertheless  liable  as 
on  a  common  law  obligation.^^  On  reversal  of  a  judgment  for  plaintiff  in  eject- 
ment, restitution  cannot  be  awarded  to  defendant,  where  a  receiver  appointed 
pending  the  litigation  has  sold  the  land  as  trustee  of  a  paramount  mortgage.^^ 

§  7.  Receivership  in  ejectment. — Pending  action  of  ejectment,  a  court  of 
ecjuity  may  appoint  a  receiver  of  the  rents  and  profits  where  it  appears  that  de- 
fendants are  appropriating  the  rents  and  profits,  that  from  the  state  of  the  law 
docket  there  can  be  no  speedy  trial  of  the  action,  and  the  defendants  are  in- 
solvent."^ A  receiver  in  ejectment  is  not  authorized  by  a  showing  that  there  was 
a  deed  of  trust  on  the  land  superior  to  the  title  of  either  of  the  parties  or  of  those 
under  whom  they  claim  title,  that  the  interest  was  unpaid,  the  taxes  were  delin- 
quent, and  foreclosure  was  threatened.®*  In  ejectment  by  a  foreclosure  pur- 
chaser, collection  of  rents  by  an  insolvent  in  possession  may  be  enjoined  and  a 
receiver  appointed.®' 

Right  of  defendant  to  rents. — If  on  an  intervention  in  ejectment,  a  receiver 
of  rents  and  profits  is  appointed,  defendant  may  be  allowed  the  money  derived 
from  the  receivership  if  plaintiff  is  without  title  and  an  intervenor  failed  to  allege 
sufficient  interest  to  permit  an  intervention.®'  Where  land  incumbered  by  a 
mortgage  paramount  to  the  rights  of  either  of  the  parties  is  sought  to  be  recov- 
ered in  ejectment  and  a  receiver  is  appointed,  the  defendant  on  reversal  of  a  judg- 
ment against  him  is  entitled  to  recover  rents  and  profits  and  the  proceeds  of  a 
sale  of  the  equity  of  redemption,  which  the  receiver  has  paid  over  to  plaintiff. 
Defendant  is  not  liable  for  rents  and  profits  after  the  appointment  of  a  receiver, 
and  on  reversal  of  the  judgment  may  have  restitution  in  a  summary  manner  in 
the  ejectment  suit  without  being  relegated  to  a  separate  action.®^ 

§  8.  Neiv  trial.^^ — The  assertion  of  an  equitable  counterclaim  for  specific 
performance  of  an  oral  contract  for  sale  of  land  will  not  prevent  a  new  trial  as  of 
right  though  by  statute  it  does  not  exist  in  equitable  actions,  notwithstanding  they 
determine  not  only  the  possession  but  the  title,  where  also  by  statute  defendant  is 
allowed  to  set  up  equitable  defenses  in  his  answer  in  ejectment.®®  A  second  new 
trial  in  ejectment  can  be  granted  only  as  a  matter  of  favor,  and  when  the  court 
is  satisfied  that  justice  will  be  promoted.* 

Amendments  setting  up  the  statute  of  limitations  may  be  refused  in  the  dis- 
cretion of  the  court  on  a  second  trial.* 

Conditions.  Bond. — A  bond  filed  is  sufficient  though  conditioned  for  pay- 
ment of  costs  "if"  the  new  trial  is  granted."     Where  payment  of  all  costs  recov- 


00.  Plaintiffs  were  in  possession  under  a 
deed  from  an  ancestor,  having  agreed  to 
make  certain  payments  to  their  brothers  and 
sisters — Howard   v.  Murray,   203   Pa.    464. 

91.     Leech  v.   Karthaus,   135   Ala.   396. 

Colbern    v.    Yantis     GVIo.)     75    S.    W. 


92. 
€53. 
03. 
M. 
05. 


Whyte  V.  Spransy,   19   App.   D.   C.   450. 
Colbern  v.   Yantis    (Mo.)    75  S.  W.   653. 
Whyte  V.   Spransy,   19  App.  D.  C.   450; 
Vizard  v.  Moody,   117  Ga.  67. 

96.  Donohoo    V.    Howard    (Ind.    T.)    69    S. 
W.  927. 

97.  Colbern  v.  Yantis  (Mo.)   76  a  W.  (63. 


98.     New  trial  for  error  and  not  of  right. 

see  generally  New  Trial. 

09.  Rev.  St.  1898,  §§  3073.  3078,  3092— 
Newland  v.  Morris.  115  Wis.   207. 

1.  New  trial  should  be  granted  where  Its 
defeat  may  have  turned  on  a  question  of 
pleading  and  of  the  order  of  proof,  which 
on  another  trial  might  be  obviated  by  an 
amendment  of  the  answer  and  strict  com- 
pliance with  rules  governing  the  introduc- 
tion of  evidence — Barson  v.  Mulligan,  40 
Misc.   (N.  Y.)    407. 

2.  Kennan  v.   Smith,   115  Wis.   463. 

3.  4.  Rev.  St.  1898,  S  3092 — Newland  v. 
Morris,  116  Wis.  207. 


§9 


MESNE    PROFITS. 


979 


ered  by  the  judgment  is  made  a  condition  to  the  granting  of  a  new  trial,  interest 
on  the  costs  to  the  time  of  payment  is  not  required.*  On  a  second  new  trial  in 
ejectment,  defendant,  though  held  to  the  payment  of  costs  and  damages  awarded 
the  plaintiff  is  not  required  to  pay  damages  awarded  for  the  rents  and  profits  or 
the  value  of  the  use  and  occupation.' 

§  9.  Mesne  profits  and  damages.' — A  statutory  provision  for  the  recovery  of 
mesne  profits  is  applicable  to  an  action  by  an  Indian  nation  imder  an  act  of  con- 
gress to  recover  land  from  a  trespasser.'' 

Necessity  of  prayer. — If  the  prayer  is  simply  for  possession  of  the  premises, 
damages  for  mesne  profits  cannot  be  awat-ded,*  and  where  special  damages  are  not 
claimed,  the  rental  value  cannot  be  awarded  as  damages  nor  can  the  complaint  be 
amended  to  cover  such  rentals.^ 

Persons  liable. — In  order  that  one  may  be  protected  by  good  faith  in  posses- 
sion as  against  a  claim  for  waste,  the  possession  need  not  be  continuous  or  of  the 
entire  property.^"  One  taking  possession  in  error  as  to  the  law  may  be  regarded 
as  holding  in  bad  faith  and  chargeable  with  rents  and  profits,^^  and  one  in  under 
an  erroneous  judgment  must  respond  to  the  owner  for  resulting  damages.^^ 

Time  for  which  recovery  may  he  had. — If  the  statute  provides  that  rents  and 
profits  or  the  value  of  the  use  and  occupation  for  a  term  not  exceeding  6  years 
may  be  recovered,  the  6  years  are  to  be  regarded  as  dating  back  from  the  beginning 
of  the  action.^'  Where  defendants  in  ejectment  are  without  notice  of  plaintiff's 
title  until  action  is  begun,  they  can  be  chargeable  only  from  the  date  of  filing  the 
suit  to  the  date  of  judgment.^*  Judgment  should  not  be  rendered  against  de- 
fendants for  detention  of  the  premises  prior  to  the  time  at  which  plaintiffs  acquired 
title." 

Set-off. — A  claim  for  rents  and  profits  may  be  off-set  by  the  cost  of  clearing 
the  land  in  a  case  where  the  court  is  in  doubt  as  to  the  actual  value  of  the  occu- 
pancy.^®  If  the  premises  detained  are  a  homestead,  defendant,  as  against  a  claim 
for  the  use  thereof,  cannot  set  off  judgments  held  by  him  against  plaintiff.^' 

Measure  of  damages. — The  measure  of  damages  for  an  unlawful  withholding 
of  possession  is  the  value  of  the  use  for  any  legitimate  and  proper  purpose  while 
the  owner  is  deprived  thereof.^*  An  increased  rental  value  resulting  from  im- 
provements made  by  one  holding  under  color  of  title  and  in  good  faith  should  not 
be  taken  into  consideration  against  him.^®  Disconnected  benefits,  not  arising  in 
the  usual  course  of  defendant's  occupancy,  should  not  be  considered,^"  nor  uses 


5.  Damages  mentioned  In  Code,  §  1525, 
■will  be  regarded  as  those  recovered  for 
Waste  and  other  material  injuries  and  not 
the  penalty  for  the  detention  of  the  prem- 
ises— Barson  v.  Mulligan,  40  Misc.  (N.  Y.) 
407. 

6.  See  generally  Waste,  Damages. 

7.  Mansfield's  Digest,  §  2637;  Ind.  Ter. 
Ann.   St.   1899,  §  1921,   is  applicable  to  an  ac- 

•tion  under  Act  of  Congress,  June  28.  1898, 
§§  3.  4  &  6  (Ind.  Ter.  Ann  Sts.  1899,  §§  57s, 
57t,  57v) — Brought  V.  Cherokee  Nation  (Ind. 
T.)    69    S.    W.    937. 

8.  Gen.  St.  p.  1289,  §  45;  Sup.  Ct.  Rule  85— 
Kline    v.   Williams    (N.    J.    Law)    54    Atl.    556. 

9.  Pfeffer  v.   Kling,   171  N.    Y.   668. 

10.  Claim  for  value  of  timber  cut  down 
and  disposed  of — Leathern  &  Smith  Lumber 
Co.   V.   Nalty,   109   La.    325. 

11.  McDade  V.  Bossier  Iicvee  Board,  109 
La.    625. 

12.  On  detention  of  a  farm,  water  mill 
and  power,   the   reasonable   rental  value   to- 


gether with  the  expenses  In  moving  to  and 
from  the  premises  may  be  recovered  less 
the  taxes  and  the  value  of  the  permanent 
reasonable  and  necessary  repairs — Lewis  v. 
Scott,   24   Ky.  L.   R.   2367.  73  S.   W.   1131. 

13.  Code  Civ.  Proc.  §  1531 — Willis  v.  Mc- 
Klnnon,    79    App.   Div.    (N.   Y.)    249. 

14.  Cowan  V.  Mueller   (Mo.)   75  S.   W.   606. 

15.  Where  title  is  acquired  by  descent, 
judgment  should  not  be  rendered  for  de- 
tention prior  to  the  death  of  the  ancestor — 
Fitzpatrick  v.  Graham  (C.  C.  A.)  122  Fed. 
401. 

16.  McDade  v.  Bossier  Levee  Board,  109 
La.    625. 

17.  Lewis  V.  Scott,   24   Ky.  L.    R.   2367,   73 
1131. 
Curry  v.  Sandusky  Fish  Co.,  88  Minn. 


S.  W, 
18. 

485. 
19. 
20. 


McCarver  v.  Herzberg,  135  Ala.  642. 

Such  as  a  particularly  profitable  catch 

of  sturgeon  in  defendant's  fishing  business 

Curry  v.  Sandusky  Fish  Co.,  88  Minn.  485. 


980 


EJECTMENT. 


§   10 


peculiar  to  defendant's  business."  A  city  on  recoveiy  of  land  dedicated  as  a 
street  cannot  recover  its  rental  value  where  it  is  shown  that  it  was  useful  only  for 
agTicultural  purposes  and  the  city  has  sustained  no  damage."  In  assessing  dam- 
ages for  waste  in  the  cutting  of  timber,  the  diminished  value  of  the  land  and  not 
the  manufactured  value  of  the  timber  is  to  be  regarded  as  the  measure,  but  the 
value  of  timber  in  its  manufactured  state  may  be  shown  in  connection  with  the 
reasonable  cost  of  manufacturing  and  marketing. ^^ 

§  10.  Allowance  for  improvements  and  expenditures. — In  a  real  action  to 
recover  possession  of  property,  defendant  cannot  be  allowed  for  taxes  paid,  if  rents 
and  profits  are  not  demanded." 

Defendant  cannot  be  allowed  for  improvements  which  he  makes  with  knowl- 
edge of  the  owner's  rights,"  or  which  he  makes  while  occupying  under  a  void  de- 
oree.2®  Where  by  statute,  defendants  in  possession  under  color  of  title  and  in  good 
faith  are  allowed  for  their  improvements,  a  claimant  under  a  void  tax  deed  will 
be  allowed  for  his  improvements  though  he  knew  that  some  interest  was  claimed 
by  plaintiff  if  his  occupancy  was  in  good  faith  under  belief  of  valid  title.^^  He 
should  be  allowed  compensation  so  far  as  such  improvements  increase  the  vendible 
value  of  the  land,  where  they  are  necessary  to  a  proper  use  of  the  land  and  made 
with  knowledge  of  and  without  objection  from  plaintiffs.^*  Where  an  executor 
who  is  also  a  devisee  joins  in  a  sale  of  realty,  the  devisee  on  suing  as  such  to  re- 
cover his  portion  of  the  property  on  refusal  of  defendants  to  make  payments,  the 
executor  being  unable  to  confer  title,  may  recover  such  share  only  on  repajonent  of 
the  proportionate  part  of  defendant's  expenditures  and  improvements  less  a  like 
share  of  the  rental  value.'^* 

If  the  deed  under  which  defendant  claims  shows  that  the  grantor  does  not 
claim  to  be  an  absolute  owner,  but  only  holds  by  a  general  license,  he  cannot  claim 
compensation  for  improvements.^**  One  making  improvements,  on  land  which  he 
has  purchased  at  a  sale  by  his  assignee  in  bankruptcy  to  defeat  a  fraudulent  con- 
veyance to  his  wife  and  children  is  not  entitled  to  compensation  for  improve- 
ments.'* 

In  a  statutory  action  to  recover  for  improvements  made  on  lands  recovered  in 
ejectment,  the  defendant  cannot  recover  for  improvements  not  made  on  the  land 
in  controversy.'^ 

If  a  counterclaim  for  improvements  in  ejectment  is  based  solely  on  statute, 
the  defendant  is  not  entitled  to  relief  arising  from  the  equitable  powers  of  the 
court.'' 


21.  Where  defendant  had  occupied  land 
In  the  business  of  catching  and  curing  fish. 
evidence  of  the  fishermen  as  to  the  value 
of  the  use  based  on  the  nature  of  defend- 
ant's business,  is  inadmissible — Curry  v. 
Sandusky    Fish   Co..    88   Minn.    485. 

23.  City  of  Uniontown  v.  Berry,  24  Ky. 
L.  R.  1692.  72  S.  W.  295,  24  Ky.  L.  R.  2248, 
73   S.  W.   774. 

23.  Nelson  v.  Churchill  (Wis.)  93  N.  W. 
799. 

24.  Milliken  v.  Houghton,  97  Me.  447. 

25.  V\'illi3  V.  McKinnon,  79  App.  Div. 
(N.   Y.)    249. 

20.  Code,  §  473,  allows  the  value  of  im- 
provements to  an  unsuccessful  defendant  in 
e.iectment — Finch  v.  Strickland,  132  N.  C. 
103. 


2T.  Comp.  Laws  1897,  §  10,995 — Thomas  v. 
Wagner   (Mich.)   92   N.  W.  106. 

28.  Jones  V.  Griffin,  25  Ky.  L.  R.  117,  74 
S.    W.    713. 

29.  Crouch  V.  Nast,  79  App.  Dlv.  (N.  Y.) 
492. 

30.  Under  Comp.  Laws  Dak.  1887,  §§  5455, 
5456 — Skelly  v.  Warren  (S.  D.)  94  N.  W. 
408. 

31.  Not  a  bona  fide  holder  of  the  prem- 
ises under  color  of  title  believed  by  him  to 
be  good — Hallyburton  v.  Slagle,  132  N.  C. 
957. 

32.  Recovery  cannot  be  had  for  improve- 
ments on  neighboring  islands,  where  certain 
i.«;lands  have  been  recovered  In  ejectment — 
Kobush  V.  Schmidt  (Mo.  App.)   72  S.  W.   1087. 

:i3,  Skelly  v.  Warren  (S.  D.)  94  N.  W. 
408. 


CURRENT  LAW. 

(UoprrlgUted  1U01»  by  Jobn  B.  West  Company.) 


Volume  I. 


FEBRUARY,  1904. 


NUAIBEB  7. 


ELECTI0NS.1 


8  1.  Statutory  Antborlzatlon,  Time,  Place 
ami  Nolife. 

§  2.  Kii;:;i!>ltUy  and  Rc^^istrntion  of  Elect- 
ors. 

§  3.  jVoininafion  by  Convention  or  Peti- 
tion.— Reg-iilarity  of  Conventions;  Nomina- 
tion by  Petition;  Certificates;  Declinations; 
Vacancies. 

§  4.     OJIiclal  Ballot. — Use  of  Party  Name. 

§  5.  Primary  I^lection-"-. — Control  by  Party 
Committees.     Ballots  and  Review. 

S  6.      OJSicers  of  Election. 


§  7.     PolHngr  the  Vote. 

§  8.     Irresularity  and  Amblgmfty  fn  Ballot. 

§   9.      I>istin$;uisliins  Mark.s  on   ItuUot. 

§   10.      Count,  Canvas,  and  Return. 

§  11.  Review  by  Court. — Jurisdiction, 
Pleading  and  Issues;  Dismissal;  Preservation 
and  Production  of  Ballots;  Evidence;  Re- 
count; Decision  and  Review. 

§  12.  Oft'en.ses  Against  Election  Laws- 
Special  Election  Courts;  Indictment;  Ques- 
tions for  Jury. 


§  1.  Statutory  authorization,  time,  place  and  notice.^ — A  subsequent  act  of 
the  legislature  cannot  validate  an  election  already  unlawfully  held.' 

Time. — Elections  must  be  held  at  the  time  fixed  by  the  law  or  by  some  person 
authorii^ed  by  law  to  fix  it:  the  authority  to  hold  an  election  at  one  time  will  not 
warrant  an  election  at  another.*  Where  a  time  is  fixed  by  the  constitution,  the  elec- 
tion may  be  held  at  the  required  time  without  further  legislation  therefor."  An 
election  for  congressman  only  is  not  one  for  "state"  officers  at  which  a  vacancy  may 
be  filled.®  An  election  to  fill  a  vacancy  may  be  directed  to  be  held  before  tlie  ex- 
piration of  the  term  by  which  the  vacancy  will  result.^  One  departure  for  a  special 
cause  from  a  customary  date  of  holding  an  election  does  not  establish  a  new  date.* 

Place. — When  electors  are  given  power  to  designate  the  place  of  holding  future 
elections  but  do  not  do  so,  ensuing  elections  are  properly  held  at  the  same  place.* 


1.  See  Judg'es,  for  election  of  special 
judges.  See  Railroads  for  voting  of  munic- 
ipal aid  bonds. 

Intoxic  iting  Liquors,  for  local  option  elec- 
tions. See  articles  dealing  with  various  po- 
litical divisions  such  as  States,  Municipal 
Corporations,  Counties,  Towns  for  powers  of 
legislatures,  boards  of  aldermen,  councils. 
etc.,  to  judge  of  qualifications  of  their  mem- 
bers. 

2.  Bill  for  revision  of  a  city  charter  held 
broad  enough  in  its  title  to  cover  changes  in 
the  time  of  holding  the  charter  elections. 
Laws  :S96,  p.  G41,  c.  520 — People  v.  Kent,  83 
App.  Div.  (N.  Y.)  554.  Section  42  of  an  act  to 
regulate  elections.  Pub.  Laws  1898,  p.  258,  is 
repealed  by  the  4th  section  of  the  supple- 
ment to  said  act  approved  April  14th.  1903, 
Pub.  Laws  1903,  p.  606 — Hopper  v.  Stack  (N. 
J.  Sup.)  5fi  All.  1.  Act  Oct.  16,  1901),  does 
not  repeal  all  of  Ky.  St.  1471  except  such 
portion  as  is  reenacted  in  §  4 — Herndon  v. 
Farmer,  24  Ky.  L.  R.  1045.  70  S.  W.  632. 

3.  Election  held  under  repealed  law  not 
validated  by  act  declaring  that  the  repeal- 
ing act  was  intended  not  to  apply  to  place 
in  question — Rodwell  v.  Harrison,  132  N.  C. 
46. 


4.  People  v.  Knopf,  198  111.  340.  An  In- 
correct statement  of  a  clerk  who  is  given 
no  power  to  determine  the  year  in  which  the 
election  of  particular  officers  shall  take 
place,  and  who  has  no  such  power  in  the 
absence  of  statute,  but  whose  duty  is  con- 
fined to  stating  in  his  notice  the  officers  to 
be  elected  at  any  election  as  provided  by 
law,  will  have  no  effect  in  rendering  an  elec- 
tion valid  which  the  law  does  not  authorize 
— People  V.  Kent.  83  App.  Div.  (N.  Y.)  554. 
.A.  private  law  fixing  the  time  of  the  elec- 
tion of  town  officers  is  repealed  b.v  a  general 
statute  expressly  so  providing,  so  that  an 
election  held  at  a  day  fixed  in  the  ]  rivate 
'Statute  is  invalid — Rodwell  v.  Harrison,  132 
N.  C.   45. 

5.  State  V.   Moores    (Neb.)    96   N.   W.   1011. 
C.      Ferguson   v.  Hackett,   25  Ky.   L.   R.   170, 

74    S.    W.    708;    Smith   v.   Doyle,    25   Ky.    L    R. 
278,  74  S.  W.  1084. 

7.  People  v.  Wright,  30  Colo.  439,  71  Fac. 
365. 

8.  It  will  be  presumed  that  a  customary 
long  used  date  had  been  fixed  by  law  or  by 
a  vote  of  the  electors — Hoxsie  v.  Edwards, 
24  R.  I.  338. 

9.  Gen.  Laws,  c  9,  §§  4.  9  as  amended  by 


(981) 


982 


ELECTIONS. 


§2 


A  mistake  in  the  location  of  a  polling  place  outside  the  limits  of  the  election 
district  will  not  invalidate  the  votes  of  the  district,  though  it  is  provided  by  statute 
that  the  voter  must  vote  in  the  district  where  he  actually  resides." 

PreciuGts}^ — Irregular  establishment  of  precincts  does  not  render  the  election 
illegal  and  void  where  there  is  no  showing  of  fraud,  prejudice  to  any  candidate,  or 
deprivation  of  voting  privileges.^- 

Notices. — Exact  compliance  with  statutes  in  regard  to  notice  of  election  is  not 
requisite  where  such  statutes  are  merely  directory,"  and  the  results  of  a  full  and 
fair  election  are  not  vitiated  by  failure  in  this  regard." 

Mandamus. — Wliere  a  duty  respecting  the  holding  of  an  election  is  clearly  ob- 
ligatory and  has  been  disregarded,  the  court  will  by  mandamus  compel  action.^** 

Restraint. — An  injunction  does  not  lie  to  restrain  the  holding  of  a  public  elec- 
tion authorized  by  law,^^  and  unless  for  irregularity  such  as  to  render  the  election 
absolutely  illegal  or  void,  the  supreme  court  of  a  state  will  not,  at  the  suit  of  a  pri- 
vate person,  restrain  election  inspectors  from  acting.^'' 

§  2.  Eligihility  and  registration  of  electors.^^ — The  constitutional  right  to 
vote  for  all  elective  officers  cannot  be  curtailed  by  permitting  a  vote  for  only  part 
of  candidates  for  a  board  to  the  end  that  it  shall  be  bi-partisan.^"  A  requirement 
that  electors  shall  vote  in  the  wards  in  which  they  reside  is  an  "additional  qualifi- 
cation" for  municipal  elections  within  a  constitutional  grant  of  power.^** 

Residence.^^ — A  constitutional  period  of  residence  'T)efore  election"  cannot  be 
extended  by  requiring  it  as  a  condition  to  registration.-^  The  intention  to  remain 
is  consistent  with  the  purpose  to  remove  at  some  future  indefinite  time,-^  but  there 
must  be  a  fixed  intention  to  remain.^*     He  must  abandon  his  former  residence.^'' 

Eemoval  with  intention  to  reside  permanently  in  another  state  forfeits  a  voting 
residence  though  the  intention  is  altered  and  a  return  made  to  the  state.^*  An  in- 
tent to  return  may  prevent  loss  of  residence  by  removal." 


Pub.   Laws,   c.   808,   S   8 — Hoxsie  v.   Edwards, 
24  R.  I.  3SS. 

10.  Pub.  Laws  1898,  p.  237 — Lane  v.  Otis, 
68  N.  J.  Law,  656. 

11.  In  Idaho,  an  election  precinct  cannot 
Include  more  than  one  justice's  precinct 
(Rev.  St.  1S87,  §  759,  subd.  3 — State  v.  Vine- 
yard (Idaho)   72  Pac.  824. 

12.  Election  inspectors  will  not  be  re- 
strained from  acting  in  absence  of  such  a 
showing — State  v.  Wilcox,  11  N.  D.  329. 

13.  Posting  of  only  one  notice  instead  of 
two  held  not  fatal — Hoxsie  v.  Edwards,  24 
R.  L  338. 

14.  Omission  to  mention  one  of  the  of- 
fices among  those  to  be  filled — Winters  v. 
Warmolts  (N.  J.  Law)  56  Atl.  245.  The  mere 
fact  that  an  election  notice  may  be  con- 
strued to  authorizi  the  closing  of  the  regis- 
tration books  sooner  than  provided  by  law, 
will  not  invalidate  an  election,  unless  it  is 
apparent  that  the  books  were  so  closed — 
Epping  V.  Columbus,   117  Ga.   263. 

15.  Giving  notice — People  v.  Knopf,  198 
111.  340.  Inserting  names  of  offices  to  be 
filled — People  v.  Knopf,  Id. 

16.  Morgan  v.  Wetzel  County  Ct.  (W.  Va.) 
44  S.  E.  182. 

17.  In  establishing  precincts — State  v. 
Wilcox.  11  N.  D.  329. 

18.  Special  advisory  election  courts  see 
post,  S  7. 

19.  Act  April  8,  1884,  as  amended  by  act 
June  1,  1886,  2  Gen.  St.  p.  806,  providing  that 
boards  of  excise  commissioners  shall  consist 


of  five  members  not  more  than  three  of 
whom  shall  belong  to  the  same  political  par- 
ty and  that  no  voter  shall  vote  for  more  than 
three  candidates — State  v.  Bedell,  68  N.  J. 
Law,  451;  Smith  v.  City  of  Perth  Amboy  (N. 
J.   Sup.)    56  Atl.   145. 

20.  Code  1892,  §  3028  is  not  in  conflict  with 
Const.  §§  241,  242,  245 — State  v.  Kelly  (Miss.) 
32    So.    909. 

21.  Residence  In  a  precinct  from  Septem- 
ber 12th  to  November  5th,  does  not  fullfll  the 
60  day  requirement — Edwards  v.  Logan,  24 
Ky.  L.  R.  1009,  70  S.  W.  852;  Id.,  75  S.  W. 
257.  A  person  becomes  a  resident  on  the 
day  he  rents  a  house  and  moves  his  clothing 
and  furniture  therein,  he  being  married  on 
that  day  and  going  into  occupancy  with  his 
wife  on  the  day  following. — Conner  v.  Com- 
monwealth, 24  Ky.  L.  R.  709,  69  S.  W.  963. 

22.  Code  1892,  §  3028  making  residence  of 
one  year  "prior  to  registration"  essential,  is 
invalid — State   v.   Kelly    (Miss.)    32   So.    909. 

23.  Railroad  laborers  who  have  been 
working  within  the  state  for  four  years — 
Black  v.  Pate,  136  Ala.  601. 

24.  Students  not  qualified  (Const,  art.  7. 
§  4) — Parsons  v.  People,  80  Colo.  388,  70  Pac. 
689. 

25.  A  student  desiring  to  compel  his  reg- 
istration in  the  district  of  his  residence  at  a 
seminary  of  learning  must  show  his  former 
residence  and  facts  showing  an  abandon- 
ment thereof,  and  acts  done  by  him  besides 
that  of  taking  up  his  abode  at  the  seminary 


§3 


NOMINATIONS. 


983 


Registration. — Conditions  for  registration  must  not  impair  the  constitutional 
right  to  vote.2*  A  provision  that  two  members  of  a  town  council  shall  be  registrars, 
and  in  case  that  they  disagree  as  to  voting  qualifications  a  citizen  of  the  town  may 
be  called  upon  as  umpire,  is  reasonable.^" 

A  board  of  registration  is  not  liable  in  damages  for  refusal  to  register  a  voter.^" 
A  county  board  of  registrars  cannot  in  equity  be  compelled  to  place  a  negro's  name 
upon  the  voting  list,  if  the  refusal  to  register  him  is  alleged  to  be  part  of  a  general 
scheme  to  disfranchise  negroes,  since  if  such  a  scheme  exists,  a  mere  order  of  the 
phiintiif's  name  to  be  inscribed  will  not  furnish  adequate  relief,  and  in  addition,  if 
the  lists  are  fraudulent,  the  court  cannot  become  a  party  to  the  unlawful  scheme 
by  adding  another  voter  thereto.^^  Mandamus  to  compel  registration  will  not  lie, 
where  the  ground  alleged  denies  the  legal  existence  of  the  registration  board.'^ 

§  3.  Nominations  hy  convention  or  petition.  Regularity  of  conventions. — A 
convention  if  regular  for  one  purpose  is  regular  for  all  purposes  within  the  scope  of 
its  action. ^^ 

A  person  who  accepts  a  nomination  from  a  convention  of  a  party  becomes  bound 
by  the  rulings  of  the  party  organization  as  to  the  regularity  of  his  nomination.^* 
In  a  controversy  as  to  which  are  the  regular  nominees  of  a  party,  the  court's  inquiry 
is  limited  to  determine  which  was  the  regular  party  convention;^*  as  to  this  ques- 
tion, the  determination  of  the  party  central  organization  is  conclusive.^** 

The  majority  of  those  voting  will  control  action  of  a  political  convention,'^  and 
if  it  has  been  regularly  organized  those  remaining  cannot  be  deprived  of  their  power 
to  act  by  the  voluntary  withdrawal  of  a  majority  of  delegates  entitled  to  partici- 
pate;*® nor  can  such  majority  unite  with  rejected  delegates  to  form  a  legal  party  con- 
vention.^" 

Nomination  hy  petition. — Immaterial  variations  from  the  statute  will  not  aifect 
a  petition  of  nomination.*"  The  petitioners  for  a  party  nomination  need  not,  under 
Kentucky  laws,  state  that  they  are  members  of  the  party  ;*^  and  though  the  petition 


for  the  purpose  of  gaining  a  new  residence 
— In   re  McCormack,   86   App.   Div.   362. 

20.  Edwards  v.  Logan,  24  Ky.  L.  R.  1009, 
70   S.    W.    852;    Id.,    75   S.   W.    257. 

27.  An  unmarried  man  does  not  lose  his 
residence  by  going  to  another  state  to  secure 
labor  (Ky.  St.  1478) — Edwards  v.  Logan,  24 
Ky.  L.  R.  1009,  70  S.  W.  852;  Id.,  75  S.  W. 
257.  A  temporary  removal  from  the  ward 
for  sanitary  reasons  does  not  forfeit  resi- 
dence— Finn  v.  Board  of  Canvassers,  24  R. 
I.    482. 

28.  Code  892,  §  3028  requiring  full  period 
of  residence  prior  to  registration  is  invalid — 
State  V.    Kelly    (Miss.)    32    So.    909. 

29.  Ordinance  held  authorized  by  a  town 
charter  as  a  "needful  regulation"  for  regis- 
tration— Epping  V.  Columbus,  117  Ga.   263. 

30.  Complaint  held  demurrable — Giles  v. 
Teasley,    136    Ala.    164. 

31.  Giles  V.   Harris.   189  U.  S.   475. 

32.  Demurrer  sustained  to  mandamus  to 
compel  registration  alleging  that  Const. 
1901,  art.  8,  §§  180,  181.  183-188  are  uncon- 
stitutional, such  sections  prescribing  qualifi- 
cations of  voters  and  the  mode  of  registra- 
tion— Giles  V.  Teasley,  136  Ala.  164. 

33.  County   convention — State    v.    Lludahl, 
D.    320. 

State  V.   Liudahl.    11    N.    D.    320. 
State  V.   Porter,   11   N.   D.   309. 
The   determination    of  the   central   or 


11  N. 
34. 
35. 
30. 


ganization    of   a   party   as    to    which    of    two 


caucuses  Is  regular  is  conclusive  as  to  which 
is  a  regular  nomination — Rose  v.  Bennett  (R. 
I.)  56  Atl.  185.  The  decision  of  a  credential 
committee  of  a  state  convention  as  to  the 
Qualification  of  delegates  from  a  county  con- 
vention made  on  contest  and  with  full  notice, 
which  is  adopted  by  the  state  convention,  is 
not  reviewable  by  the  courts — State  v.  Liu- 
dahl,  11  N.  D.  320;  State  v.  Porter.  11  N.  D. 
309.  It  is  immaterial  that  delegates  voted  on 
the  decision  in  the  convention,  if  their  votes 
were  not  controlling — State  v.  Weston,  27 
Mont.  185,  70  Pac.  519,  1134.  The  decision  of 
the  state  convention  of  a  party  as  to  which 
faction  of  a  county  central  committee  was 
entitled  to  select  delegates  to  a  state  con- 
vention is  conclusive  as  to  the  right  of 
candidates  for  county  offices  subsequently 
nominated  by  the  successful  faction  to  ap- 
pear on  the  official  ballot  under  the  party 
name — Id. 

37.  The  fact  that  delegates  are  present 
and  do  not  vote  does  not  affect  the  acts  of 
the  majority  voting — State  v.  Porter,  11  N. 
D.    309. 

38,  39.     State  v.  Porter,  11  N.  D.  309. 

40.  Republican  candidate  instead  of  can- 
didate of  the  Republican  party — W^ilkins  v. 
Duffy,   24  Ky.  L.   R.   913,   968,   70  S.   W.   668. 

41.  The  statute  requires  that  they  shall 
state  that  they  are  qualified  and  desire  to 
vote  for  the  candidate — Wilklns  v  Duffy, 
24  Ky.   L.   R.   913,   968,   70   S.  W.   668. 


984 


ELECTIONS. 


§   ^ 


does  not  state  that  there  is  no  other  nomination  for  the  office,  the  nominee  should 
be  placed  on  the  ballot  by  the  clerk,  if  he  has  knowledge  that  there  is  no  other  nom- 
inee of  the  party  and  that  no  one  claims  the  nomination." 

If  petitioners  be  found  not  entitled  to  have  the  candidate  placed  on  the  ballot 
under  the  party  name  which  they  request,  the  name  may  be  placed  on  the  ballot 
without  any  party  designation.'*' 

Certificates  and  declinations  and  vacancies. — The  nomination  certificate  must  be 
filed  with  the  officer  designated  by  statute,"  and  his  action  thereupon  may  be  sub* 
ject  to  Judicial  review*^  or  control.*®  If  the  nomination  certificate  is  not  filed  in 
time,  the  defect  may  be  remedied  by  filing  as  for  a  vacancy.*'^ 

Declinations  of  nomination  must  strictly  follow  the  statutes  as  to  time.**  A 
convention  may  delegate  the  nominating  power  to  a  committee  unless  restrained  by 
its  party  rules  or  by  statute,  and  hence  a  committee  to  fill  vacancies  may  nominate 
whomsoever  the  convention  might  have.*® 

§  4.  Official  ballot. — One's  eligibility  to  office  is  not  curtailed  by  a  law  deny- 
ing the  right  to  print  his  name  on  the  ballot  if  spaces  to  write  it  in  are  provided.^* 
In  California  a  nominee  is  held  to  have  a  constitutional  right,  if  nominated  by  two 
parties  for  the  same  office,  to  have  his  name  printed  twice  on  the  ballot  under  both 
party  designations.^^ 

An  election  is  not  vitiated  by  the  fact  that  the  clerk  places  the  name  of  a  can- 
didate under  an  erroneous  party  device,  where  his  action  might  be  regarded  as  in 
good  faith  under  a  plausible  interpretation  of  an  opinion  of  the  attorney  general." 
The  eurname  of  a  candidate  is  a  sufficient  designation  if  there  is  only  one  candidate 
of  such  name  for  the  office.^' 

The  officer  required  to  prepare  the  official  ballot  has  purely  ministerial  duties."* 
A  writ  of  prohibition  will  not  issue  to  restrain  the  placing  on  a  ballot  of  the  name 
of  a  candidate  whose  nomination  has  been  duly  certified.*' 


42.  Though  a  party  nomination  by  peti- 
tion may  be  made  only  in  case  of  failure 
to  nominate  by  convention  or  primary — Wil- 
kins  V.  Duffy,  24  Ky.  L.  R.  913,  968,  70  S. 
W.   668. 

43.  Davidson  v.  Hanson,   87  Minn.   211. 

44.  A  judge  of  a  district  having  but  one 
county  should  be  regarded  as  a  county  offi- 
cer in  Montana,  and  certificates  of  nomina- 
tion should  be  filed  with  the  county  clerk 
(Pol.  Code.  §  1312;  Const.  Sched.  §  1) — State 
V.  Hays.  27  Mont.  174.  70  Pac.  321.  The 
oflicer's  file  mark  is  not  necessary,  presenta- 
tion being  sufficient  under  Code,  §  1104 — 
Reese  v.  Hogan,  117  Iowa,  603.  Laws  1896, 
c.  909.  §  56 — Gillespie  v.  McDonough,  39 
Misc.    147. 

4.'».  In  New  York  the  act  of  a  secretary 
of  state  in  filing  nomination  certificates  may 
be  reviewed  in  the  judicial  district  of  the 
supreme    court   in   which   the   citizen    resides. 

4C.  The  proper  officer  may  be  compelled 
by  mandamus  to  receive  a  certificate  of  nom- 
ination, his  duties  being  ministerial  and  not 
judicial,  notwithstanding  it  is  provided  that 
the  certificates  must  come  from  a  party  cast- 
ing two  per  cent  of  the  total  vote  of  the 
preceding  election — (Rose  v.  Bennett  [R.  I.] 
56  Atl.  1S5);  mandamus  lies  only  where  an 
election  is  duly  to  be  held,  hence  will  not  issue 
where,  pursuant  to  competent  advice  that  the 
terms  were  not  to  expire,  no  proclamation 
for  the  election  of  judges  in  November  1902 
was  made  and  no  party  nominated  candi- 
dates— State  V.  Chatterton  (Wyo.)  70  Pac. 
4«6. 


47.  Code.  §5  1104,  1102 — Reese  v.  Hogan. 
117   Iowa.    603. 

48.  Under  act  Feb.  2,  1899,  §  24,  the  nom- 
inee must  file  his  declaration  at  least  thirty 
days  before  election  day — Napton  v.  Meek 
(Idaho)    70    Pac.    945. 

49.  Gillespie  v.  McDonough,  39  Misc.  147 
construing  Laws  1S96,  c.  66.  forbidding  com- 
mittees to  nominate  candidates  of  opposingr 
parties,    under   certain   circumstances. 

50.  State  v.  Moore,  87  Minn.  308.  59  L.  R. 
A.   447  sustaining  Primary  Election  I^aw. 

51.  Pol.  Code,  §  1197,  to  the  contrary  pro- 
viding that  his  name  shall  appear  once,  and 
in  the  other  party  column  the  words  "no 
nomination"  held  unconstitutional — Murphy 
V.  Curry.  137  Cal.  479,  70  Pac.  461.  59  L.  R. 
A.   97. 

52.  Placing  Republican  candidate  under 
the  title  of  the  independent  Republican  par- 
ty. Laws  Extra  Sess.  1900.  c.  5,  §  12,  pro- 
vide that  an  election  shall  be  void  only 
where  there  is  fraud,  intimidation,  bribery 
or  violence — W'ilkins  v.  Duffy,  24  Ky.  L.  R. 
913.    968.    70    S.    W.    668. 

53.  State  v.   Eagan,   115  "Wis.   417. 

54.  Not  authorized  to  select  prirty  names 
for  candidates  or  determine  which  of  two 
party  names  should  be  used  for  the  party 
candidates — Llnd  v.  Scott,  87  Minn.  226. 
"Where  names  of  candidates  for  state  and 
judicial  district  offices  are  certified  to  the 
county  auditor  by  the  secretary  of  state,  his 
duties  as  to  preparing  the  official  ballots 
become  ministeriai — Miller  v.  Davenport  (Ida- 
ho) 70  Pac.  610. 


§  5 


PARTY  NAMES.     PRIMARIES. 


985 


Where  a  rate  per  thousand  is  established  as  compensation  for  printing  ballots, 
the  printer  cannot  charge  the  county  the  full  price  for  a  thousand  ballots  for  a  frac- 
tion furnished  townships,  but  there  can  be  but  one  fractional  charge.^" 

Use  of  party  name. — A  substantial  number  of  persons  having  an  organization, 
a  committee,  distinct  views  and  teachings,  is  a  political  party."  Party  names  must 
be  distinct.^®  A  factional  dispute  may  give  each  of  two  candidates  the  right  to 
the  use  of  the  party  name.=®  Under  the  primary  election  law  of  Minnesota,  a  party 
which  has  made  no  nomination  at  the  primary  election  cannot  have  a  candidate 
placed  with  other  candidates  so  nominated  on  the  ticket  under  a  party  name;®* 
but  it  does  not  lose  the  exclusive  right  to  its  party  name  on  the  state  ticket  by  the 
failure  to  poll  enough  votes  to  go  on  the  official  ballot  by  nominations  in  conven- 
tion; it  may  nominate  by  petition.®^ 

§  5.  Primarij  elections. — Primary  elections  are  subject  to  regulation  under  the 
police  power  of  the  state.®^  They  must  be  held  in  accordance  with  the  statute  ap- 
plicable thereto,®^  and  in  Minnesota  are  not  prescribed  for  nominations  of  state  offi- 
cers,^* but  in  Kentucky  they  are."^ 

Control  by  party  committees. — Primary  election  laws  usually  intrust  the  calling 
of  elections  to  the  party  governing  committees®"  subject  to  statutory  limitations  on 
their  mode  of  action.®''     A  power  to  the  state  committee  to  count  the  votes  cast  at 


55.  Ag^ainst  the  county  auditor  to  restrain 
Insertion  of  the  name  of  a  candidate  for 
district  judge  on  an  offlclal  ballot,  the  nom- 
ination being-  duly  certified  to  the  secretary 
of  state  and  by  him  to  the  auditor — Miller  v. 
Davenport    (Idaho)    70    Pac.    610. 

56.  Gen.  St.  1901,  §  2708 — Honey  v.  Board 
of  Commissioners.  65  Kan.  428,  70  Pac.  333. 

67.  The  Socialist  labor  party  is  a  polit- 
ical party  within  such  definition  in  Minne- 
sota though  compelled  to  make  its  nomina- 
tions by  petition  having  failed  to  cast  a  stat- 
utory percent  of  the  total  vote  at  a  preceding 
general  election — Davidson  v.  Hanson,  87 
Minn.  211. 

58.  "Social  Democratic  Party,"  held  to 
conflict  with  "Democratic  party"  (Gen.  Laws 
1901,  c.   312) — Lind  v.  Scott,   87  Minn.   226. 

59.  Nomination  for  registrar  of  voters  was 
made  by  a  special  convention  of  the  city  com- 
mittee and  holders  of  certain  designated  offi- 
ces in  a  town,  and  later  by  the  voters  at 
a  primary  election,  held  under  a  statute 
then  first  going  into  effect,  and  it  -was  held 
that  though  the  chairman  of  the  town  com- 
mittee refused  to  recognize  the  latter  nom- 
inee, such  nominee  was  entitled  to  have  bal- 
lots Issued  by  him  containing  his  name  as 
a  candidate  for  the  office  under  the  title 
of  the  party  name  counted — Flanagan  v. 
Hynes,   75   Conn.   584. 

60.  Laws  1899,  c.  349,  §  25,  as  amended 
by  laws  1901,  c.  216,  §  9 — State  v.  Scott,  87 
Minn.    313. 

61.  Gen.  Laws  1901,  c.  312 — Davidson  v. 
Hanson,  87  Minn.  211. 

63.     Hopper  v.  Stack  (N.  J.  Sup.)  56  Atl.  1. 

Validity  of  Statutes.  Such  laws  are  not 
rendered  special  by  the  fact  that  they  ap- 
ply only  to  fall  elections  (Hopper  v.  Stack 
[N.  J.  Sup.]  56  Atl.  1);  or  by  the  fact  that 
they  provide  that  candidates  to  be  voted  for 
by  a  single  ward  or  township  shall  be  nom- 
inated directly  without  intervention  of  dele- 
gates, while  those  to  be  elected  by  more 
than  one  ward  or  township  shall  be  nom- 
inated   by    delegates    in    party    conventions 


(Act  April  14th,  1903,  Pub.  Laws,  1903.  p. 
603)— Id. 

Laws  1899,  c.  27  not  being  an  amendment 
but  only  Indirectly  affecting  general  election 
law  does  not  violate  provisions  regarding 
amendments — De  France  v.  Harmer  (Neb.) 
92  N.  W.  159.  Act  held  not  obnoxious  to 
provision  against  adoption  of  other  acts 
without  setting  them  out — Hopper  v.  Stack 
(N.  J.  Sup.)   56  Atl.  1. 

The  voter  may  be  required,  if  challenged, 
to  make  affidavit  that  at  the  last  general 
election  at  which  he  voted,  he  voted  for  a 
majority  of  the  candidates  of  the  party  with 
which  he  is  proposing  to  act,  without  in- 
fringing his  constitutional  rights — Id. 

63.  Ky.  St.  art.  12 — Young  v.  Beckham,  24 
Ky.   L.   R.   2135,   72  S.  W.   1092. 

64.  Such  nominations  are  by  convention — 
Davidson  v.  Hanson,  87  Minn.  211,  constru- 
ing statutes. 

6.5.  Ky.  St.  art.  12,  §§  1550,  1565— Young 
V.  Beckham,  24  Ky.  L.  R.  2135,  72  S.  W. 
1092. 

66.  When  called  under  such  statutory  pro- 
visions they  cannot  be  enjoined  (Ky.  St.  art. 
12,  c.  41) — Meacham  v.  Young,  24  iCy.  L.  R. 
2141,  72  S.  W.  1094.  State  committee  denied 
power  to  prevent  primary  called  regularly 
by  local  committee  or  to  remove  local  com- 
mitteemen and  appoint  new  committee  for 
that  end — Neal  v.  Young,  25  Ky.  L.  R.  183, 
75  S.  "W.  1082.  Interference  by  state  com- 
mittee enjoined — Id.  Governing  committee 
cannot  question  the  eligibility  of  a  candidate 
before  the  primary  and  refuse  to  place  his 
name  on  the  ballot — Young-  v.  Beckham,  24 
Ky.   L.   R.    2135.   72  S.   W.   1092. 

67.  A  statute  providing  that  rules  shall 
not  be  amended  except  on  reasonable  notice, 
does  not  apply  to  rules  adopted  by  the  first 
meeting  of  a  county  general  committee  chan- 
ging the  rules  of  the  preceding  year.  (Pri- 
mary Election  Law,  Laws  1898,  p.  336,  c. 
179  as  amended  by  Laws  1899,  p.  968,  c.  473, 
subd.  2) — People  v.  Democratic  General  Com- 
mittee, 82  App.  Div.   (N.  Y.)   173.     And  a  ru(a 


986 


ELECTIONS. 


§8 


a  primary  election  for  state  officers  will  be  read  into  a  statute  whicli  authorizes  the 
committee  to  call  the  convention  and  authorizes  local  committee  to  count  the  vote 
and  certify  the  nominations  for  local  officers.®®  Eedress  must  be  first  sought  from 
the  committee  before  mandamus  or  certiorari  will  lie  to  review  its  action. °^ 

Ballots  for  primaries. — "Primaries"  are  not  "elections"  which  require  a  ballot 
with  blank  spaces  for  writing  in  names.''" 

Review  and  contest  of  primary. — A  statutory  power  to  review  the  action  or  neg- 
lect of  public  officers  with  regard  to  rights  or  duties  prescribed  by  a  primary  law 
is  confined  to  the  subject-matter  of  the  act.'^^  Where  the  board  of  canvassers  is 
given  authority  to  hear  and  determine  all  questions  concerning  the  counting  of  bal- 
lots cast  in  a  party  caucus  for  nomination,  they  are  entitled  to  throw  out  the  entire 
vote  and  refuse  to  certify  any  nomination,  where  the  ballots  evidence  fraud/^ 

A  notice  of  intention  to  contest  is  not  sufficient  to  require  a  recount.'^'  A  pe- 
tition for  an  injunction  to  compel  a  party  committee  to  recount  the  ballots  of  a  pri- 
mary election  must  allege  wrong  doing  or  mistake  on  the  part  of  the  committee  or 
election  officers.''* 

§  6.  Officers  of  election. — An  officer  appointed  by  a  committee  under  statute 
to  police  an  election  draws  his  authority  from  the  statute  and  not  from  the  committee 
and  may  use  force  in  arresting  a  violator  of  the  election  law.'"*  Compensation  pro- 
vided the  officers  for  local  elections  is  not  necessarily  affected  by  consolidation  of 
the  local  elections  with  general  elections.''* 

§  7.  Polling  the  vote. — An  election  actually  held  may  be  valid  despite  an  offi- 
cer's refusal  to  open  the  polls.''^ 

Election  courts. — A  mere  desire  of  election  officers  to  have  a  means  of  advice  as 
to  legal  rights  or  duties  will  not  require  a  judge  to  be  deputed  under  the  Pennsyl- 
vania law  to  hold  a  special  election  court." 

§  8.  Irregularity  and  amhiguity  in  ballot. — The  right  of  the  elector  to  have 
his  vote  cast  and  counted  should  be  protected  from  fraud  or  mistake  of  the  election 
officers  by  every  possible  safe-guard,^®  but  omission  of  mandatory  requirements  is 


there  adopted  controls  acts  performed  at 
that  time,  though  It  later  may  become  inef- 
fective on  account  of  failure  to  file  a  certifi- 
cate thereof  as  required  by  statute — Id. 

68.  Ky.  St.  art.  12,  §§  1563,  1565 — Young 
V.  Beckham,  24  Ky.  L.  R.  2135,  72  S.  W. 
1092. 

69.  Mandamus  will  not  issue  to  compel 
the  recognition  of  an  unnamed  person  as 
member  of  the  general  committee  of  a  party, 
If  such  person  has  never  applied  for,  or  been 
refused  recognition,  though  by  the  statute 
summary  jurisdiction  is  given  to  review  the 
actions  or  neglect  of  the  officers  or  members 
of  a  political  convention  committee — People 
V.  Democratic  General  Committee,  82  App. 
Div.  (N.  Y.)   173. 

70.  Minnesota  Const,  art.  7 — State  v.  John- 
son, 87  Minn.   221. 

71.  Under  Laws  1899,  p.  995,  c.  473,  §  11, 
a  justice  of  the  supreme  court  cannot  re- 
view the  neglect  of  the  mayor  of  a  city  in 
appointing  election  officers  under  a  power 
conferred  by  laws  1S96.  p.  900,  c.  909,  §  12, 
as  amended  by  laws  1901,  p.  232,  c.  95 — Mc- 
Shane  v.  Murphy,  86  App.  Div.   (N.  Y.)   566. 

72.  Cannon  v.  Board  of  Canvassers,  24 
R.   I.   473. 

73.  74.  Henry  v.  Secrest,  24  Ky.  L.  R.  1505, 
71  S.  W.  892. 

75.  Primary  election  sheriff — Ryan  v. 
Quinn.  24  Ky.  L.  R.  1513,  71  S.  W.  872. 


76.  Pub.  Laws  1901,  p.  41,  does  not  affect 
compensation  allowed  by  act  March  22,  1901 
for  duties  connected  with  charter  elections 
in  certain  cities — Bennett  v.  City  of  Orange 
(N.  J.  Law)    54  Atl.   249. 

77.  His  act  did  not  disfranchise  the  elect- 
ors since  they  had  the  right  to  elect  a 
moderator  In  his  place  and  proceed  with  the 
annual  town  election — Hoxsie  v.  Edwards,  24 
R.  I.  338. 

78.  In  re  Election  Court,  204  Pa.  92. 

79.  State  V.  Falk  (Minn.)  94  N.  W.  879. 
Defects  held  not  material:  Failure  to  initial 
ballots  (Construing  Beaumont  City  Charter) 
— King  V.  State  (Tex.  Civ.  App.)  70  S.  W. 
1019.  A.  Schr.  placed  on  a  ballot  as  the 
initials  of  a  judge  Anthony  Schriver — Coule- 
han  V.  White,  95  Md.  703.  Failure  of  clerk 
to  sign  ballots  and  use  of  the  words  "Hotel 
Lancaster"  in  place  of  his  name  "George 
D.  Lancaster" — Bates  v.  Crumbaugh,  24  Ky. 
L.  R.  1205.  71  S.  W.  75.  The  fact  that  the 
judge's  initials  are  placed  on  a  portion  of 
the  ballot  which  is  torn  off  before  it  is  de- 
posited. It  will  be  presumed  that  all  the 
ballots  deposited  were  official,  where  one 
judge  put  on  the  Initials  and  another  judge 
accepted  the  ballots  and  placed  them  in  the 
box.  Construing  Gen.  Pub.  Laws,  art.  23. 
§  61.  as  amended  by  acts  1901,  c  2 — <3oulehaji 
V.  White,  95  Md.   70J. 


5  8 


IRREGULARITY  AND  AMBIGUITY  IN  BALLOT. 


987 


fatal  whether  from  fraud,  mistake,  or  irregularity.***  Such  statutes  are  regarded 
as  constitutional  and  valid,  though  by  their  application  the  rejection  of  a  few  hon- 
estly voted  ballots  is  necessitated.*^ 

The  marls  must  at  least  substantially  conform  to  the  statutes,  applications 
whereof  are  noted  below.*^     The  voter's  choice  must  be  indicated.*^ 

After  marking  in  the  circle  indicating  a  desire  to  vote  a  straight  ticket,  the 
voter  docs  not  entirely  invalidate  his  ballot  by  digressing  into  other  columns.^*  Un- 
official ballots  authorized  in  case  of  faihire  to  provide  official  ones  may  be  counted 
though  not  regularly  marked.*^ 

The  writing  in  of  names  is  also  controlled  by  statute,  the  intent  of  the  voter 
being  given  great  weight.*®  The  rule  as  to  the  effect  of  writing  in  a  name  already 
printed  on  the  ballot  varies.*''  Where  the  voter  is  required  to  return  a  spoiled  ballot 
and  receive  another,  a  ballot  bearing  attempted  erasures  may  be  rejected.®* 


80.  Code  1899,  c.  3.  §§  36,  66.  require  the 
rejection  of  any  ballots  not  signed  by  clerk 
— Kirkpatrick  v.  Board  of  Canvassers  (W. 
Va.)  44  S.  E.  465.  Ballots  on  which  the 
names  of  both  poll  clerks  are  written  by  one 
of  them  or  by  some  other  person  are  void — 
Id.  In  an  election  for  city  officers  in  Mis- 
souri in  a  city  which  comes  under  the  regis- 
tration act,  a  ballot  on  which  the  registra- 
tion number  of  the  person  casting  the  ballot 
is  not  indorsed  cannot  be  counted  (Rev.  St. 
1899,  §  6995,  is  not  repealed  by  the  act  of 
1891,  §  11)— Donnell  v.  Lee  (Mo.  App.)  73  S. 
W.   997. 

81.  Kirkpatrick  v.  Board  of  Canvassers 
(W.   Va.)    44   S.   E.    465. 

83.  May  be  marked  in  blue  pencil — Coule- 
han  V.  White,  95  Md.  703.  By  express  con- 
sent of  an  opponent,  a  ballot  bearing-  a  can- 
didate's name  in  blue  pencil  may  be  counted, 
though  the  statute  provides  that  all  marks 
must  be  in  black  (Rev.  St.  §§  2966,  35)  — 
State  V.  Conser,  24  Ohio  Clrc.  R.  270.  Need 
not  be  in  the  shape  of  a  cross  (Coulehan  v. 
White,  95  Md.  703);  but  the  action  of  the 
court  below  in  rejecting  ballots  marked 
with  a  straight  line  instead  of  a  cross  has 
been  sustained — People  v.  Campbell,  138  Cal. 
11,  70  Pac.   918. 

83.  Where  mark  is  opposite  a  blank  space 
following  the  name  of  a  candidate,  it  cannot 
be  counted  for  such  candidate.  Rev.  St.  c. 
11,  S  238,  provides  that  the  ballot  shall  not 
be  counted  if  the  voter's  choice  cannot  be 
determined — Flanders  v.  Roberts,  182  Mass. 
524.  Erasure  of  a  cross  mark  invalidates 
the  ballot — Coulehan  v.  White,  95  Md.  703. 

84.  A  ballot  marked  in  the  circle  at  the 
head  of  the  ticket  and  with  crosses  after  the 
names  of  candidates  on  other  tickets,  will  be 
counted  for  all  candidates  under  the  marked 
circle,  except  for  those  offices  as  to  which 
marks  have  been  placed  after  the  names  of 
candidates  on  other  tickets.  Ballot  marked 
In  two  circles  and  with  a  cross  in  the  square 
opposite  the  name  of  one  candidate  under 
one  of  such  circles,  will  be  counted  for  the 
candidate  after  whose  name  he  has  placed 
the  cross  only — Edwards  v.  Logan,  24  Ky. 
U  R.  1099,   70  S.  W.  852;  Id.,   75  S.  W.   257. 

A  cross  in  the  circle  under  the  device  of 
a  regular  party  and  also  under  the  device  of 
an  independent  candidate,  will  not  cause 
the  ballot  to  be  rejected,  but  where  there 
are  three  sets  of  candidates,  if  a  cross  is 
placed  in  two  of  the  circles,  it  is  fatal — 
Bates   V.   Crumbaugh,    24    Ky.   L.    R.    1205,    71 


S.  W.  75.  If  the  ballot  is  marked  in  the 
circle  under  a  party  device  and  also  under 
the  device  of  an  individual,  independent  can- 
didate, it  should  be  counted  for  the  independ- 
ent candidate  and  not  for  the  candidate  for 
the  corresponding  office  on  the  party  ticket, 
the  independent  candidate  being  the  only 
one  under  the  Individual  device — Little  v. 
Hall,  24  Ky.  L.  R.  1060,  70  S.  W.  642.  If 
after  marking  the  circle  at  the  head  of  the 
ticket  the  voter  makes  a  cross  in  the  square 
opposite  the  single  candidate  on  the  other 
ticket,  the  vote  should  be  counted  for  such 
candidate  for  that  office,  and  as  to  the  other 
offices  for  the  party  candidates  under  the 
circle  which  is  crossed — Bates  v.  Crumbaugh, 
24  Ky.  L.  R.  1205,  71  S.  W.  75.  Where  the 
ballots  are  unmistakably  marked  for  one 
party,  the  fact  that  there  is  an  apparently 
fraudulent  mark  in  the  circle  at  the  top  of 
another  ticket  will  not  prevent  the  ballot 
being   counted   for  the  first   party — Id. 

85.  No  crosses — In  re  Hammond  (R.  L)  62 
Atl.    1079    (This   was   a  town  election). 

86.  The  voter  must  not  make  a  cross  after 
the  name  w^hich  he  so  writes  (Pol.  Code,  § 
1205) — People  v.  Campbell,  138  Cal.  11.  70 
Pac.  918.  'The  writing  of  the  name  of  a  can- 
didate in  a  blank  under  a  printed  designation 
of  an  office  is  under  the  Ohio  law  effective 
as  a  vote  for  such  person  for  such  office — 
State  V.  Conser,  24  Ohio  Circ.  R.  270.  Name 
may  be  written  beneath  the  line — People  v. 
Campbell,   138  Cal.  11,  70  Pac.   918. 

In  Wisconsin,  if  a  name  is  written  on  a 
ballot  on  which  there  is  a  printed  name  for 
such  office,  it  will  be  counted  for  the  writ- 
ten name;  though  Rev.  St.  1898,  §  799  pro- 
vides that  no  ballot  shall  contain  a  greater 
number  of  names  for  any  office  than  there 
are  persons  to  be  chosen — State  v.  Eagan, 
115   Wis.    417. 

87.  A  ballot  with  a  cross  placed  under 
the  party  emblem  or  name  from  which  the 
name  of  a  candidate  is  erased,  and  the  name 
of  the  candidate  appearing  on  the  opposite 
ticket  written  in  should  not  be  counted  in 
favor  of  the  opposite  candidate  (Pub.  Acts 
1901,  p.  26,  No.  214) — People  v.  Byers  (Mich.) 
97  N.  W.  51.  Where  the  name  of  an  opposing 
candidate  is  written  partly  over  the  name 
of  the  candidate  and  a  pencil  line  drawn 
through  the  name  of  the  latter,  it  must  be 
counted  in  favor  of  the  name  written,  if 
the  statute  provides  that  ballots  shall  not 
be  rejected  for  technical  errors  not  making 
it  impossible  to  determine  the  voter's  choic««: 


988 


ELECTIONS. 


§   9 


§  9.  Distinguishing  marks  on  ballot. — The  intent  of  the  voter  must  be  de- 
termined by  an  inspection  of  the  ballot  and  the  existence  of  marks  by  which  it  may 
be  identified  irrespective  of  any  conjecture  as  to  the  purpose  or  circumstances  un- 
der which  the  mark  was  made.^^ 

§  10.  Count,  canvas,  and  return. — In  determining  a  plurality  the  voter's 
choice  for  precedence  is  not  material.^" 

Return. — It  is  not  necessary  in  New  York  to  return  the  number  of  votes  cast 
by  each  of  several  parties  for  a  common  candidate.^^  An  ofiRcer's  refusal  to  sign 
a  return  does  not  invalidate  the  election.^^  An  election  certificate  carries  a  pre- 
sumption that  proper  canvass  of  the  vote  was  had  before  the  certificate  was  issued, 
and  that  the  canvassing  officers  determined  that  the  persons  returned  were  duly 
elected.®^ 

Recount. — A  power  to  canvass  returns  does  not  confer  authority  to  canvass  bal- 
lots."* A  recanvass  should  be  restricted  to  ballots  objected  to.°^  A  candidate  does 
not  waive  the  right  to  object  to  the  legality  of  a  recount  by  his  presence  thereat.®® 

Performance  of  purely  ministerial  duties  concerning  elections  may  be  compelled 
by  mandamus."^ 


and  thoug^h  no  cross  mark  was  under  the 
written  name  Rev.  St.  §§  2966,  2935 — State 
V.  Conser.  24  Ohio  Circ.  R.  270.  Pol.  Code. 
i  1205 — People  v.  CampbeU,  138  Cal.  11,  70 
Pac.  918.  Tlie  voters  must  not  write  a  name 
In  the  blank  left  for  candidates  for  certain 
offices,  where  such  name  is  printed  as  a 
candidate  for  such  office. 

88.  Pol.  Code,  §  1207 — People  v.  Campbell, 
138  Cal.   11,   70  Pac.   918. 

89.  People  v.  Campbell,  138  Cal.  11,  70 
Pac.  918.  Marks  regarded  as  distingriiishing: 
Double  cross;  cross  after  words  "no  nomina- 
tion;" blot  on  margin;  hole  caused  by  erasure 
of  stamp  mark;  cross  inside  a  column;  cross 
after  words  "for  electors;"  cross  against  the 
printed  names  for  presidential  electors,  and 
nine  names  written  for  electors  in  the  blank 
column;  "William  McKinley"  or  "McKinley" 
written  in  the  blank  column;  letter  A.  No. 
14;  three  lines  forming  a  star — Coulehan  v. 
White,    95    Md.    703. 

Not  distinguishing:  An  S.  shaped  mark 
resulting  from  an  offset  on  folding  of  the 
ballot  after  it  was  placed  in  the  hands  of 
the  board;  "Wm.  McKinley"  written  in  blank 
column  and  no  crosses  against  names  of 
presidential  electors  (People  v.  Campbell,  138 
Cal.  11,  70  Pac.  918);  extending  the  cross 
slightly  beyond  the  square;  deficiency  in  the 
leg  of  a  cross;  ending  arms  of  cross  in 
curls;  repetition  of  pencil  strokes  making 
cross  (Coulehan  v.  White,  95  Md.  703); 
blurred  figures  or  irregular  black  marks  in 
the  circle  (Bates  v.  Crumbaugh,  24  Ky.  L. 
R.  1205.  71  S.  W.  75;  ink  blots  on  the  back 
(Bates  v.  Crumbaugh,  24  Ky.  L.  R.  1205,  71 
S.  W.  75;  Coulehan  v.  White,  95  Md.  703). 

In  the  absence  of  statute  the  voter  may 
make  a  cross  in  two  of  the  circles  at  the 
head  of  the  ticket,  if  by  so  doing  he  does 
not  vote  for  two  candidates,  and  such  will 
not  be  regarded  as  a  distinguishing  mark 
if  made  in  good  faith.  Ky.  St.  §  1471,  pro- 
vides that  ballots  shall  not  be  rejected  for 
technical  errors,  unless  it  is  impossible  to 
determine  the  voter's  choice — Herndon  v. 
Farmer,  24  Ky.  L,.  R.  1045,  70  S.  W.   632. 

00.  Statute  read,  that  of  the  persons  elect- 
ed selectmen,  the  person  first  named  on  the 
plurality  of  the  ballots  cast  for  them  or  any 


of  them  shall  be  the  first  selectman.  Con- 
testant lacked  a  plurality  without  resort  to 
votes  on  which  he  was  not  named  first — Buck 
v.  Barnes,  75  Conn.  460. 

91.  Construing  election  law.  Laws  1896,  c. 
909,  §§  84,  110,  111,  131 — People  v.  Board  of 
County  Canvassers.  79  App.   Div.    (N.   Y.)    514. 

92.  Signature  by  the  clerk  after  the  judge's 
refusal  on  account  of  the  reception  of  two 
votes  after  closing  of  the  polls  is  sufficient 
— Collins  V.  Masden,  25  Ky.  L.  R.  SI,  74  S. 
W.  720.  Not  invalidated  by  failure  to  sign 
It  the  proper  time,  where  the  ballots  do  not 
appear  to  have  been  tampered  with,  and  cor- 
'•espond  to  the  count  returned — Bates  v. 
Crumbaugh,    24   Ky.    L.   R.    1205,    71    S.    W.    75. 

93.  State  v.   Kersten   (Wis.)    95  N.  W.   120. 

94.  Rev.  St.  c.  24,  §  57,  conferring  author- 
ity on  the  board  of  trustees  of  villages  to 
canvass  returns  of  village  elections — Holt  v. 
People,  102  111.  App.  276.  In  Nevada  the 
board  of  county  commissioners  may  recount 
the  votes  though  it  has  canvassed  and  de- 
clared the  election  returns  and  given  a  cer- 
tificate of  election  to  a  legislator  (Comp 
Laws  1900,  §  2116) — Wright  v.  Board  ol 
Com'rs    (Nev.)    71  Pac.  145. 

95.  Election  law,  §  114;  Laws  1896.  c.  109. 
authorizes  a  judicial  investigation  of  ballots 
objected  to  as  illegal  (In  this  case  there  was 
no  claim  that  the  number  of  votes  shown  by 
the  tally  sheet  did  not  correspond  to  the 
number  shown  by  the  poll  books) — In  re 
Brush,   171  N.   Y.   694. 

96.  Fritz  v.  Crean,  182  Mass.  433. 

97.  Mayor  of  a  city  may  be  compelled  to 
certify  the  returns  of  the  commissioners  of 
election,  where  it  is  provided  that  such  com- 
missioners shall  be  appointed,  and  that  after 
the  close  of  the  polls  they  shall  ascertain 
the  result  of  the  election  in  tlie  presence  of 
the  mayor  v.'ho  shall  certify  with  the  elec- 
tion officers  to  the  returns — Bourgeois  v. 
Fairchild  (Miss.)  33  So.  495.  Duty  of  regis- 
trars of  voters  making  recount  under  Rev. 
Laws,  c.  11,  §  267,  to  reject  certain  defective 
ballots  and  make  a  statement  of  the  result 
of  a  re-count  then  made  held  ministerial — 
Flanders  v.  Roberts,   1S2  Mass.   524. 

A  letter  of  a  board  of  canvassers  stating- 
its  decision  not  to  certify  the  result  of  a  re- 


§  11 


REVIEW  BY  COURTS. 


989 


§  11.  Beview  hy  court.^^  Right  and  remedies. — The  right  to  contest  an  elec- 
tion for  fraud  or  mistake  is  not  to  be  repealed  or  curtailed  by  inference  from  sub- 
sequent statutes,®"  and  a  remedy  by  legislative  contest  of  election  of  a  member  is  not 
a  bar  to  other  remedies  for  securing  a  review  of  the  election.^  Mandamus  and  cer- 
tiorari cannot  both  be  maintained.- 

Failure  of  a  candidate  to  object  to  the  rejection  of  certain  ballots  in  his  pres- 
ence at  the  first  count  does  not  estop  him  from  contesting  the  election.'  Error  in 
receiving  a  ballot  may  be  offset  by  receiving  similar  ballots  for  the  opposing  candi- 
date.* 

Jurisdiction  and  judicial  inquiry  under  statutes  creating  special  remedies  or 
conferring  special  jurisdiction  are  limited  by  terms  of  the  statutes."^ 

Pleadings  and  issues. — General  statements  or  averments  of  illegality  or  irregu- 
larities are  insufficient."  An  amendment  setting  up  new  grounds  of  contest  after  the 
expiration  of  the  period  for  contest  will  not  render  the  entire  petition  liable  to  be 
stricken  out.^     Time  for  filing  responsive  pleadings  as  fixed  in  the  statute  is  man- 


count  because  It  was  convinced  of  Intrinsic 
fraud  is  a  judicial  determination  that  all 
ballots  should  be  rejected,  and  not  a  refusal 
to  perform  a  ministerial  duty  of  certifying 
the  result  of  a  re-count.  And  a  declaration 
by  the  chairman  of  the  board  that  one  had 
received  a  plurality  of  the  votes,  being  not 
m  official  finding  does  not  render  the  issu- 
ance of  a  certificate  merely  ministerial — Can- 
non v.  Board  of  Canvassers.  24  R.  I.  473. 

It  will  not  lie  to  control  purely  political 
and  governmental  functions,  unless  there  is 
a  refusal  to  act  in  any  manner — Orman  v. 
People  (Colo.  App.)  71  Pac.  430.  It  lies  to 
compel  officers  to  declare  the  result  of  an 
election  and  to  notify  the  parties  shown  to 
be  elected — Holt  v.  People,  102  111.  App.   276. 

Nor  will  it  lie  to  compel  a  board  to  per- 
form acts  not  within  its  power.  Under  Gen. 
St.  1901,  §§  2587.  2590,  requiring  the  board  to 
open  the  returns,  determine  their  regularity 
and  genuineness,  make  the  footing  and  de- 
clare the  result,  it  cannot  be  required  to 
re-canvass  returns  and  exclude  certain  votes 
as  cast  and  return  under  a  law  which  is 
claimed  to  be  unconstitutional — Sharpless  v. 
Buckles.   65   Kan.   838,   70  Pac.   886. 

98.  See  States,  Municipal  Corporations, 
Officers  and  kindred  titles  for  review  of 
qualification  of  members  of  representative 
bodies  such  as  State  Legislatures,  city  and 
town  councils,  etc.,  by  the  bodies  to  which 
they  are  elected. 

09.     State  v.   Conser,   24  Ohio   Circ.   R.   270. 

1.  Does  not  prevent  a  recount  before  the 
county  commissioner  under  Comp.  Laws  1900. 
§  2116 — Wright  v.  Board  of  Com'rs  (Nev.)  71 
Pac.  145. 

2.  Review  of  re-count  authorized  by  Rev. 
St.  c.  11,  S  267 — Flanders  v.  Roberts,  182 
Mass.    524. 

3.  State  v.  Conser,   24  Ohio  Circ.  R.   270. 

4.  People  V.  Campbell,  138  Cal.  11,  70  Pac. 
918. 

5.  The  action  of  the  judge  of  a  township 
•election  in  rejecting  and  destroying  ballots 
may  be  reviewed  on  a  contest  of  the  election 
(Rev.  St.  §§  2966,  13) — State  v.  Conser,  24 
Ohio  Circ.  R.  270.  Summary  process  pro- 
vided for  the  contesting  of  the  election  of 
selectmen  may  be  invoked  for  the  determi- 
nation of  the  question  of  which  selectman  is 
to  be  first  selectman — Buck  v.  Barnes,  75 
Conn.  460.     By  statute  In  certain  states  the 


circuit  court  Is  entitled  to  declare  that  there 
is  no  election  where  there  has  been  such 
fraud,  intimidation,  bribery  or  violence,  that 
neither  conte.stant  nor  contestee  may  be  ad- 
judged fairly  elected  (Laws,  Extra  Sess.  1900, 
c.  5,  §  12) — Stewart  v.  Rose,  24  Ky.  L.  R. 
1759,  72  S.  W.  271.  A  county  court  in  Illi- 
nois has  no  authority  to  entertain  a  contest 
of  an  election  for  the  office  of  president  of 
an  incorporated  town  existing  under  a  spe- 
cial charter.  He  is  not  by  the  fact  that  he 
is  ex-officio  of  the  board  of  county  super- 
visors rendered  a  county  officer  within  the 
meaning  of  Rev.  St.  1874,  p.  464,  giving  the 
county  court  jurisdiction  of  contests  as  re- 
gards county  officers;  jurisdiction  rests  In 
the  circuit  court  under  the  mandatory  act 
of  1895,  §  97 — King  v.  Jordan,  198  111.  457. 
In  Massachusetts,  the  supreme  judicial  court 
may  correct  errors  of  law  in  the  count  by 
the  registers,  if  such  errors  appear  on  the 
face  of  the  papers.  Rev.  Laws,  c.  11,  §  267 
does  not  remove  such  power — Flanders  v. 
Roberts,  182  Mass.  524. 

"Where  there  is  a  tie  vote  a  justice  of  the 
supreme  court  on  a  re-count  in  certiorari 
cannot  make  an  order  revoking  the  certifi- 
cate of  the  canvassing  board,  since  no  per- 
son has  received  a  majority  on  which  alone 
the  power  rests  to  revoke  the  certificate 
(Pub.  Laws  1898,  p.  311,  §  160) — Kehoe  v. 
Stagmeier  (N.  J.  Law)   56  Atl.  252. 

6.  Paulk  v.  Lee,  117  Ga.  6.  Petition  as- 
serting that  the  county  canvassing  board 
made  grave  errors  and  that  owing  to  one 
etc.,  it  was  easy  to  make  mistakes  to  the 
injury  of  plaintiff,  too  general  (Election  law 
of  October  24,  1900) — Edwards  v.  Logan,  24 
Ky.  L.  R.  678,  69  S.  W.  800.  Specifications 
alleging  that  certain  legal  ballots  were  cast 
for  contestant  which  were  not  counted,  and 
that  there  were  certain  ballots  counted  for 
contestee  that  were  so  marked,  mutilated  or 
defective  as  to  render  them  void,  are  not  suf- 
ficient without  a  charge  that  the  illegal  bal- 
lots counted  for  contestee,  or  the  legal  bal- 
lots not  counted  for  contestant  were  pro- 
tested, and  it  is  also  not  charged  that  any 
of  such  ballots  were  preserved  and  returned 
to  the  clerk  of  the  circuit  court — Hall  v. 
Campbell   (Ind.)    68  N.  E.   892. 

7.  Motion  to  strike  should  be  limited  to 
the  new  ground  of  contest — Southerland  v. 
Sandlin   (Fla.)   32  So.  786. 


990 


ELECTIONS. 


8   11 


datory,  tmless  good  cause  is  sliown.'  Eules  as  to  pleadings  in  general  are  not  con- 
trolling.® An  answer  which  sets  up  counter  grounds  of  a  contest  need  not  be  styled 
a  counterclaim.^"  It  may  be  set  up  in  an  amended  answer  that  ballots  had  been 
altered  and  that  there  had  been  an  opportunity  for  such  alteration,  such  matter  not 
being  regarded  as  ground  of  a  counter  contest.^^  Judgment  cannot  be  rendered 
for  the  contestee  on  the  striking  of  the  contestant's  reply  to  counter  grounds,  where 
though  the  answer  is  taken  as  true,  the  contestant  might  recover  on  proof  of  his 
petition.^^  The  fact  that  an  assignment  of  grounds  of  contest  of  an  election  is  dis- 
missed on  motion  for  insufficiency  of  statement  of  facts  is  harmless,  though  the 
proper  way  of  contesting  the  sufficiency  of  such  specifications  is  by  demurrer.^^  Only 
the  issues  made  up  within  the  time  limited  by  the  statute  may  be  passed  on  together 
with  proof  filed  within  such  time.^* 

Dismissal. — An  election  contest  may  be  dismissed  by  the  contestant  at  any  time 
before  issue  is  joined,  and  until  such  dismissal  is  set  aside,  another  party  cannot 
intervene  and  be  substituted  as  a  contestant ;  nor  can  the  dismissal  be  set  aside  with- 
out notice  to  contestant.^"* 

Preservation  and  production  of  ballots. — The  United  States  district  court  may 
require  the  ballots  cast  for  a  congressman  to  be  preserved,  where  they  would  be  de- 
stro3'ed  under  a  state  law  before  they  could  be  used  as  evidence  on  an  election  con- 
test, and  a  showing  that  they  are  desired  as  evidence  is  sufficient  to  support  an 
order,  though  the  issues  as  to  the  contest  are  not  made  up  so  as  to  authorize  the 
taking  of  testimony.^® 

Secrecy  of  the  ballot  may  forbid  its  production  in  court  to  be  made  a  matter  of 
record," 

Evidence. — The  rules  of  evidence  applicable  to  contests  involving  property  right? 
are  applicable  to  election  contests.^*  Wliere  ballots  have  been  in  the  custody  of  one 
of  the  parties  in  ballot  boxes  which  were  susceptible  of  entry,  they  are  not  admis- 
sible until  it  is  shown  that  they  have  not  been  tampered  with  and  are  the  ones  cast." 
Decisions  as  to  sufficiency  are  noticed  in  the  foot  notes.^" 


8.  other  matters  demanding  counsel's  spe- 
cial attention  ar«^  not  a  sufficient  excuse — 
Preston  v.  Price,  24  Ky.  L.  R.  1090.  70  S.  W. 
623.  The  day  on  which  summons  Is  served 
Is  included  in  the  twenty  days  allowed  for 
answer  by  the  contestee  under  Election  Law, 
Extra  Session.  1900,  §  12 — Combs  v.  Eversole, 
24  Ky.  L.  R.  1063.  70  S.  W.  638. 

9.  Notice  of  filing  answer  Is  needless — 
Preston  v.  Price,  24  Ky.  L.  R.  1090,  70  S.  W. 
623. 

10.  Preston  v.  Price,  24  Ky.  L.  R.  1090, 
70   S.   W.   623. 

11.  Edwards  v.  Logan,  24  Ky.  L.  R.  1099, 
70  S.   W.    852;   Id.,   75   S.  W.   257. 

13.  Contestant  alleged  an  irregularity  af- 
fecting 200  votes  for  the  contestee.  The  con- 
testee set  up  counter  grounds  as  to  40  or  50 
of  the  contestant's  votes — Preston  v.  Price, 
24   Ky.   L.   R.   1090.   70  S.   W.    623. 

13.  Hall   V.  Campbell    (Ind.)    68   N.  E.   892. 

14.  Edwards  v.  Logan,  24  Ky.  L.  R.  678. 
69    S.    W.    800. 

15.  The  court  moots  the  question  of 
whether  such  a  dismissal  can  be  set  aside — 
Moore  v.  Waddington   (Neb.)    96  N.  W.  279. 

16.  Rev.  St.  §§  109,  123 — In  re  Howell.  119 
Fed.   465. 

17.  Order  to  custodian  to  produce  ballots 
held  void — Donnell  v.  Lee  (Mo.  App.)  73  S. 
W.   997. 

18.  Bates    v.    Crumbaugh.     24    Ky.    L.    R. 


1205.  71  S.  W.  75.  Idiot  may  testify  how  he 
voted — Edwards  v.  Logan,  24  Ky.  L.  R.  1099. 
70  S.  W.  852;  Id.,  75  S.  W.  257.  Ballots  need 
not  be  produced  and  proved  within  the  timo 
provided  by  statute  for  the  taking  of  proof 
in  the  case — Id.  School  census  not  admis- 
sible  to  show  minority  of  voters — Id. 

19.  Edwards  v.  Logan.  24  Ky.  L.  R.  1099. 
70   S.   W.    852;   Id..    75   S.   W.    257. 

On  a  recount,  it  will  be  presumed  that  a 
torn  ballot  was  damaged  after  consideration 
by  the  officer.  It  having  been  counted.  Bal- 
lot marked  under  the  Republican  device 
which  Is  torn  on  the  side  should  be  counted 
for  the  Republican  candidates — Bates  v. 
Crumbaugh,    24    Ky.    L.   R.    1205,    71    S.    W.   75. 

20.  To  warrant  declaring  an  election  void 
on  the  ground  that  neither  party  could  be 
adjudged  fairly  elected — Stewart  v.  Rose,  24 
Ky.  L.  R.  1759,  72  S.  W.  271.  Evidence  of 
previous  party  affiliation  is  not  sufliclent  to 
show  the  way  in  which  an  insane  person  vot- 
ed so  as  to  authorize  the  deduction  of  his 
vote  from  the  candidate  of  that  party,  and 
if  there  is  evidence  that  he  has  made  con- 
flicting statements  as  to  the  way  in  which 
he  voted,  his  ballots  should  not  be  deduct- 
ed— Edwards  v.  Logan,  24  Ky.  L.  R.  1099. 
TO  S.  W.  852;  Id.,  75  S.  W.  257.  Facts  held 
to  justify  the  throwing  out  of  the  vote  of  a 
precinct  on  the  ground  of  the  misconduct  of 
the    officers    in    the    manner    in    which     tlif 


§  12 


REVIEW  BY  COURTS.     CRIMES. 


991 


Recount  of  ballots. — Wliere  the  ballots  have  been  tampered  with,  a  recount  will 
not  be  ordered."  If  the  election  officers  are  required  to  furnish  with  disputed  bal- 
lots a  statement  as  to  whether  they  have  or  have  not  been  counted,  and  if  counted, 
what  part,  and  for  whom,  such  statement  is  essential  to  the  consideration  of  such 
ballots  on  a  contest."  In  Kentucky,  commissioners  for  a  recoimt  of  the  ballots 
must  allow  the  presence  of  the  interested  parties  and  their  representatives.^' 

Decision  and  review  thereof.^* — The  judgment  concludes  only  the  facts  in- 
volved.-^ Where  a  justice  of  the  supreme  court  has  not  exceeded  his  jurisdiction, 
his  order  made  in  a  recount  cannot  be  reviewed  on  certiorari.^*  Objections  not 
raised  below  cannot  be  considered  on  appeal.^^ 

The  appellate  court  will  adopt  findings  of  fact  when  there  is  any  substantial 
evidence  in  support.^^  Evidence  to  influence  or  control  discretion  or  findings  of 
the  lower  court  must  be  on  the  record,-^  and  where  a  finding  of  fact  is  silent  as  to 
the  legality  of  ballots,  the  party  having  the  burden  will  be  deemed  to  have  failed  in 
respect  to  the  facts.'" 

Security. — A  bond  conditioned  for  the  payment  of  costs  and  damages  may  be 
made  a  condition  precedent  to  the  right  of  appeal,  in  which  case  a  supersedeas  bond 
in  the  court  of  appeals  is  not  sufficient.'^ 

§  13.  Offenses  against  election  laivsP — The  congress  of  the  United  States  has 
no  power  to  punish  bribery  or  intimidation  at  elections  other  than  those  in  which 
the  nation  is  directly  interested,  or  in  which  some  mandate  of  the  national  consti- 
tution is  disobeyed."     A  statute  against  "repeating"  by  voters  in  certain  cities  is 


voting'  was  allowed  to  be  carried  on  and  in 
the  count — Combs  v.  Eversole,  24  Ky.  L.  R. 
1063,    70    S.    W.    638. 

21.  Application  to  set  aside  the  canvass 
by  the  towyi  board  of  election  on  questions 
submitted  under  the  liquor  tax  law  In  which 
it  appeared  that  the  town  clerk's  office  had 
been  entered  and  the  ballot  box  opened  be- 
fore the  application  for  a  setting'  aside  of 
the  returns — In  re  Bertrend,  40  Misc.  (N.  Y.) 
536. 

22.  Acts  Gen.  Assembly  1900,  Extra  Sess. 
p.  18,  §  10.  It  Is  not  sufficient  to  state  on 
the  back  of  each  ballot  "not  counted,  ques- 
tioned, W.  H.  Hack" — Edwards  v.  Logan, 
24  Ky.  L.  R.  1099,  70  S.  W.  852;  Id.,  75  S. 
W.    257. 

23.  Edwards  v.  Logan,  24  Ky.  L.  R.  1099, 
70  S.  W.  852;  Id.,  75  S.  W.  257. 

24.  See,  also,  Appeal  and  Review;  Certio- 
rari. 

25.  A  judgment  establishing  the  invalid- 
ity of  an  election  attempted  to  be  made  at 
a  general  election  does  not  conclude  the 
same  parties  as  to  the  power  to  make  elec- 
tion at  a  subsequent  general  election,  though 
there  have  been  no  changes  in  the  law  re- 
lating to  such  elections — Stat©  'V.  Moores 
(Neb.)    96  N.  W.   1011. 

26.  Re-count  under  Election  Law,  Pub.  L. 
1898,  p.  310,  311,  §§  159,  160— Kehoe  v.  Stag- 
meier    (N.   J.   Law)    56  Atl.    252. 

27.  That  a  name  was  unauthorized  be- 
cause also  printed  on  a  ballot,  that  a  cross 
was  marked  after  the  words  "no  nomination" 
— People  V.  Campbell,  138  Cal.  11,  70  Pac. 
918. 

28.  Donnell  v.  Lee  (Mo.  App.)  73  S.  W. 
997.  A  jury  finding  that  the  ballots  count- 
ed by  the  board  of  canvassers  were  the 
same  as  those  voted  will  not  be  reviewed — 
Attorney-General  v.  Campbell  (Mich.)  92  N. 
W.   787. 


29.  Refusal  to  set  aside  dismissal  sus- 
tained on  silent  record — Moore  v.  Wadding- 
ton   (Neb.)   96  N.  W.   279. 

Attaching  the  original  ballots  to  the  find- 
ings and  calling  them  exhibits  is  not  a  suffi- 
cient preservation  of  the  evidence  to  allow 
the  findings  of  the  trial  court  as  to  the 
legality  of  the  ballots  to  be  reviewed — Bol- 
ton V.  Clark  (Ind.)  68  N.  E.  283.  The  bal- 
lots are  not  a  part  of  the  record  where  It 
does  not  appear  that  they  were  ever  filed, 
were  in  proof  or  received  from  the  custody 
of  the  proper  officer — Edwards  v.  Logan,  24 
Ky.  L.  R.   678,   69  S.  W.  800. 

In  some  states  they  cannot  become  a  part 
of  the  record — Donnell  v.  Lee  (Mo.  App.)  73 
S.    W.    997. 

30.  Bolton  V.  Clark   (Ind.)    68  N.  E.   283. 

31.  Acts  Extra  Session  ^1900,  p.   40,   §  12 

Patterson  v.  Davis,  24  Ky.  L.  R.  842,  70  S. 
W.  47.  The  bond  need  not  be  signed  by 
appellants.  Acts  Extra  Session,  1900.  p.  40, 
c.  5,  §  12  provides  that  either  party  may  ap- 
peal by  giving  bond  to  the  clerk  of  the  cir- 
cuit court  with  good  surety  conditioned  for 
the  payment  of  all  costs  and  damages — Kel- 
ler V.  Ferguson,  24  Ky.  L.  R.  2012,  73  S.  W. 
785. 

32.  In  Massachusetts,  since  selling  of  a 
vote  Is  not  made  a  crime  by  statute,  though 
punishments  are  provided  for  the  giving  of 
bribes,  the  common  law  making  such  selling 
of  a  vote  a  crime,  will  be  regarded  to  be 
superseded,  and  a  charge  that  plaintiff  sold 
his  vote  is  not  slanderous — Doyle  v.  Kirby 
(Mass.)    68   N.   E.   843. 

33.  Revised  statutes  of  the  United  States, 
section  5507,  punishing  bribery,  cannot  be 
by  the  courts  changed  to  fit  particular  trans- 
actions which  congress  might  have  legislat- 
ed for — James  v.  Bowman,  190  U.  S.  127.  A 
statute  of  the  United  States  punishing  per- 
sons who  by  means  of  bribery  or  threats  pre- 


992 


ELECTION  OF  REMEDIES   AND  RIGHTS. 


§    1 


unconstitutional  as  punishing  an  offense  punishable  by  a  general  law.'*  A  statute 
punishing  bribery  and  fraud  at  nominating  elections  applies  only  to  bribery  in  nom- 
ination of  candidates  and  not  to  the  election  of  party  officers.^'  A  judge  of  election 
need  not  himself  have  made  an  alteration  in  the  returns  to  render  him  liable  for 
making  a  false  return.'®  An  offer  of  money  to  a  member  of  an  election  board  at  a 
primary  election  to  secure  the  casting  and  counting  of  the  ward's  vote  for  a  certain 
person  for  county  chairman  is  within  a  statute  punishing  any  endeavor  to  influence 
a  member  of  a  county  or  executive  committee  of  any  party,  a  judge  or  clerk  of  any 
return  board  in  the  discharge,  performance  or  nonperformance  of  any  act,  duty,  or 
obligation  pertaining  to  such  office.'^  Going  into  a  polling  place  to  make  inquiries 
or  to  remonstrate  is  not  "remaining"  within  a  prohibited  distance  of  the  polls.'* 

Special  election  courts. — Where  the  judge  sits  on  election  day  for  the  purpose 
of  hearing  questions  arising  from  breach  of  the  peace  and  illegal  acts  of  election 
officers,  he  sits  as  a  committing  magistrate,  and  not  only  courts  of  record  but  each 
judge  has  the  power  to  issue  warrants  for  election  fraud,  if  the  constitution  pro- 
vides that  election  officers  shall  be  privileged  from  arrest,  save  on  warrant  of  the 
court  of  record  or  judge  thereof.'^ 

The  indictment  need  not  negative  the  exceptions  to  the  statute.*"  Different 
counts  charging  various  acts  all  committed  to  secure  the  election  of  defendant  to  a 
particular  office  may  be  joined."  An  indictment  of  an  election  judge  under  the 
Pennsylvania  law  for  making  false  returns  of  a  primary  election  need  not  aver  that 
defendant  was  sworn  as  a  judge.*^ 

Questions  for  jury. — On  a  prosecution  for  false  personation  of  an  elector,  the 
jury  should  not  be  left  to  determine  whether  the  person  personated  was  in  law  an 
elector.*' 

ELECTION  OF  REMEDIES  AND  RIGHTS. 

§  1.  Election  of  remedies. — Any  one  of  several  proper  remedies  may  be  chosen 
which  the  circumstances  will  support.**     The  right  of  a  seller  of  personalty  to  elect 


vent  the  exercise  of  the  right  to  suffrage 
guaranteed  by  the  15th  amendment  to  the 
constitution,  cannot  be  sustained  on  the 
ground  that  it  is  an  exercise  of  the  power 
granted  to  congress  by  the  15th  amendment 
to  prevent  action  by  the  state  through  some 
one  or  more  of  its  official  representatives, 
and  an  indictment  which  charges  no  dis- 
crimination on  account  of  race,  color  or  pre- 
vious condition  of  servitude,  is  also  desti- 
tute of  support  by  tlie   15th  amendment — Id. 

34.  Rev.  St.  1S99.  §  7261  as  to  repeating 
in  different  "precincts"  relates  to  the  same 
offense  as  §  2114  against  repeating  in  differ- 
ent "places" — State  v.  Anslinger,  171  Mo. 
600. 

33.  Act  June  8,  1881,  Pub.  Laws,  70,  will 
not  sustain  an  indictment  alleging  that  de- 
fendant offered  bribes  to  secure  votes  for 
himself  for  the  office  of  county  chairman  at 
a  primary  election — Commonwealth  v.  Gou- 
ger,   21  Pa.  Super.  Ct.   217. 

3C.  Votes  at  a  primary  election  properly 
cast  and  counted  but  the  returns  altered 
after  certification  by  the  election  officers — 
Commonwealth  v.  Hafer,  22  Pa,  Super.  Ct. 
107. 

37.  Act  June  8,  1881,  S  6 — Commonwealth 
V,   Gouger,   21   Pa.   Super.   Ct.    217. 

38.  Ryan  v.  Quinn,  24  Ky.  L.  R.  1513,  71 
R    W.   872. 


39.  Const,  art.  8,  §  14 — In  re  Election  Court, 
204    Pa,    92. 

40.  Under  Pen.  Code,  §  342,  an  indictment 
for  carrying  a  pistol  at  an  election  precinct 
need  not  allege  that  defendant  was  not  "a 
sheriff,  deputy  sheriff  or  other  arresting  offi- 
cer acting  in  the  discharge  of  his  duty" — 
Kitchens  v.   State,  116  Ga.   S47. 

41.  Commonwealth  v.  Gouger,  21  Pa™  Super. 
Ct.    217. 

42.  Act  June  29,  1881,  P.  L.  128 — Common- 
wealth  V.  Hafer,   22  Pa.  Super.  Ct.  107. 

43.  A  prima  facie  case  is  made  out  under 
such  statute  (Rev.  Sts.  1899,  §  7261)  by  the 
showing  of  an  attempt  to  vote  in  the  name 
of  an  adult  foreign  born  citizen,  the  regis- 
ter of  votes  showing  that  such  person  had 
taken  out  naturalization  papers — State  v. 
Hardelein,   169  Mo.  579. 

44.  Conversion  may  be  waived  and  suit 
brought  on  an  implied  promise  to  pay.  Mar- 
ket value  at  time  of  conversion  may  be  re- 
covered— Hirsch  V.  Leatherbee  Lumber  Co. 
(N.  J.  Law)  55  Atl.  645.  When  a  portion 
of  the  soil  is  removed  from  land  the  owner 
may  recover  its  value  as  personalty  instead  of 
for  the  trespass  on  the  realty — Hunt  v.  Bos- 
ton (Mass.)  67  N.  E.  244.  In  an  action  by  a 
tenant  for  nuisance  he  may  elect  to  have 
his  damages  measured  by  the  depreciation  in 
the  rental  value  of  the  premises  as  a  whole 


§  1 


NECESSITY.     MAKING   OF  ELECTION. 


993 


between  various  remedies  on  insolvency  of  the  buyer  is  not  controlled  by  any  consid- 
eration of  the  buyer's  interests."  On  breach  of  an  entire  contract  of  employment 
for  a  stated  time,  the  employe  may  rescind  and  sue  on  a  quantum  meruit  or  bring 
aji  action  for  damages.''^  Action  may  be  brought  against  an  undisclosed  principal 
on  discovery,  or  against  the  agent.*'' 

To  require  election  remedies  must  be  inconsistent,*®  and  co-existent.*® 
Making  election  and  effect  thereof. — A  participation  in  a  proceeding  shows  an 
election  against  an  inconsistent  remedy.^"     Facts  essential  to  an  intelligent  choice 
of  procedure  must  be  known."     Mistake  as  to  remedy  does  not  prevent  a'subsequent 


or  by  the  loss  In  the  usable  value  of  the 
premises — HofEman  v.  Edison  Elec.  Illumi- 
nating- Co.,  87  App.  Div.   (N.  Y.)   371. 

On  breach  of  agreement  by  landlord  to  re- 
pair action  may  be  contract  or  tort — Thomp- 
son V.  Clemens,  96  Md.  196,  60  L.  R.  A.  580. 

Sale  of  realty.  On  failure  of  title  a  pur- 
chaser of  realty  may  abandon  and  sue  for 
the  purchase  money,  recover  damages  or  pro- 
ceed in  equity  for  a  rescission  of  the  con- 
tract— Newberry  v.  Ruffln  (Va.)  45  S.  E.  733. 
Where  a  plea  of  limitations  is  sustained  to 
an  action  by  the  vendor  for  the  purchase 
price  he  may  elect  to  sue  for  the  land — San- 
ders V.  RawVngs  (Tex.  Civ.  App.)  77  S.  W. 
41.  On  conveyance  to  a  third  party  by  a 
vendor  the  vendee  may  seek  a  performance 
from  the  tliird  party  or  resort  to  the  vendor 
for  damages  and  a  refusal  by  the  vendee  to 
carry  out  the  contract  with  the  third  perscfii 
amounts  to  an  election  to  pursue  the  vendor 
— Meyers  v.  Markham   (Minn.)    96   N.  W.  787. 

45.  Pratt  v.  Freeman  &  Sons  Mfg.  Co.,  115 
Wis.  648. 

46.  Action  to  recover  a  month's  salary  un- 
der an  employment  at  $1,000  per  year 
amounts  to  an  election  preventing  recovery 
for  other  damages — Ornstein  v.  Yahe  &  L. 
Drug  Co.  (Wis.)  96  N.  W.  826.  A  contract  for 
work  and  labor,  the  performance  of  which  is 
prevented  by  the  employer,  may  be  aban- 
donee by  the  employee  and  recovery  had  on 
a  quantum  meruit — Jenson  v.  Lee  (Kan.)  73 
Pac.  72.  Where  a  promise  and  agreement  to 
pay  for  plaintiff's  services  are  alleged  to- 
gether with  a  promise  to  make  compensation 
therefor  by  will  or  otherwise  coupled  with 
an  allegation  that  defendant's  decedent  did 
make  provision  for  payment  by  a  deposit, 
such  pleading  does  not  show  an  election  to 
proceed  as  if  on  a  performance  made  by 
such  act  of  deposit — Cooper  v.  Brooklyn 
Trust  Co.,  84  N.  Y.  Supp.  88. 

47.  Ware  v.  Long,  24  Ky.  L.  R.  696,  69  S. 
W.  797. 

48.  Held  inconsistent.  Attacking  transfer 
and  suing  for  consideration  thereof  and  shar- 
ing therein  as  creditor  of  grantor.  A  credit- 
or by  election  to  sue  for  the  consideration 
paid  for  a  fraudulent  transfer  by  a  bankrupt 
and  by  acceptance  of  a  dividend  from  the 
proceeds  of  the  sale  Is  estopped  from  seek- 
ing the  land — McWilliams  v.  Thomas  (Tex. 
Civ.  App.)  74  S.  W.  596.  Action  for  posses- 
sion or  value  and  action  for  conversion 
(against  executor) — Moran  v.  Morrill,  78 
App.  Div.  (N.  Y.)  440.  Attachment  for  price 
and  action  for  tort  in  fraudulent  purchase — 
Ermeling  v.  Gibson  Canning  Co.,  105  111.  App. 
196.  Retaking  of  goods  prevents  action 
against  purchaser  for  fraud — Bacon  v. 
Moody,  117  Ga.  207.  Defense  of  statute  of 
frauds    as    against   a    contract    which    at    the  ' 

Curr.  Law — 63. 


trial  defendant  admitted  to  be  valid  and 
sought  to  be  relieved  from  certain  stipula- 
tions therein  contained — Graham  v.  Heinrich 
(Okl.)  74  Pac.  328.  Action  at  law  for  breach 
carried  to  judgment  prevents  subsequent  bill 
for  specific  performance — Slaughter  v.  La 
Compagnie  Prancaise  Des  Cables  Telegraph- 
iques   (C.  C.  A.)    119  Fed.  588. 

Election  not  required.  Appeal  from  pro- 
bate of  a  will  and  bill  to  charge  trust 
on  legatees  and  devisees — Spencer  v.  Spen- 
cer (R.  I.)  55  Atl.  637.  Action  against  a 
sheriff  for  false  Imprisonment  and  ac- 
tion for  a  penalty  provided  by  statute  on 
lailure  of  the  sheriff  to  keep  an  account 
3f  the  labor  done  "by  a  prisoner  and  pay  to 
him  any  amount  due  on  discharge  (Pub.  St. 
c.  282,  §  20;  Laws  1899,  c.  31,  §§  1,  2) — Noyes 
V.  Edgerly.  71  N.  H.  500.  Action  at  law  on  an 
insurance  policy  and  suit  for  reformation  of 
the  policy — Lansing  v.  Commercial  Union 
Assur.  Co.  (Neb.)  93  N.  W.  756.  Action  by 
payee  against  executor  of  a  co-payee  to  re- 
cover half  the  proceeds  and  action  against 
one  to  whom  the  co-payee  indorsed  it  with- 
out authority — Allen  v.  Corn  Exch.  Bank,  87 
App.  Div.  (N.  Y.)  335.  Suit  on  a  replevin 
bond  given  in  sequestration  and  right  to  pur- 
sue the  property  or  its  value  in  the  hands  of 
a  purchaser — Crawford  v.  Southern  Rock 
Island  Plow  Co.  (Tex.  Civ.  App.)  77  S.  W.  280. 
Statutory  provision  (2  Ball.  Ann.  Codes  & 
Sts.  §  4487)  for  the  cancellation  of  lis  pen- 
dens is  not  exclusive  of  an  action  to  cancel 
such  lis  pendens  as  a  cloud  on  title  as  pro- 
vided by  2  Ball.  Ann.  Codes  &  Sts.  §  5521 — 
King  V.  Branscheid  (Wash.)  73  Pac.  668. 
Election  is  not  required  when  suit  is  brought 
on  a  contract  ordering  goods  and  also  on 
notes  for  the  purchase  price — Strickland  v. 
Parlin  (Ga.)   44  S.  E.  997. 

Action  to  set  aside  an  assignment  for  cred- 
itors for  fraud  from  which  a  creditor  obtains 
no  benefit  is  not  a  bar  to  a  taking  by  the 
creditor  under  the  assignment — In  re  Garver 
(N.   Y.)    68  N.  E.   667. 

49.  Action  for  money  rent  is  not  an  elec- 
tion barring  forcible  entry  and  detainer, 
where  at  the  time  it  was  brought,  the  rem- 
edy of  forcible  detainer  did  not  exist — Mark 
V.  Schumann  Piano  Co.,  105  111.  App.  490. 

50.  The  holder  of  an  attachment  lien  who 
flies  a  claim  with  a  subsequently  appointed 
receiver  will  be  deemed  to  have  elected  to 
rely  on  the  rights  to  be  gained  under  the 
receivership — Mercantile  Realty  Co.  v.  Stet- 
son  (Iowa)   94  N.  W.  859. 

51.  Pekin  Plow  Co.  v.  Wilson  (Neb.)  92  N. 
W.  176;  Noyes  v.  Edgerly,  71  N.  H.  500. 

Suit  to  set  aside  a  conveyance  in  consid- 
eration of  a  sale  induced  by  false  statements 
of  attaching  creditors  of  the  seller  dismissed 
on  discovery  that  creditors  had  no  lien  does 


994 


ELECTION  OF  REMEDIES   AND  RIGHTS. 


§2 


adoption  of  a  proper  remedy,'*^  and  the  rule  that  having  elected  the  party  cannot 
pursue  the  other  remedy  does  not  cause  a  subsequent  unsuccessful  attempt  to  pur- 
sue such  remedy  to  bar  the  right  to  pursue  the  remedy  first  elected. °^  Action  dis- 
missed without  prejudice  is  not  an  election  unless  rights  are  affected."**  Where  two 
persons  become  severally  liable,  an  action  against  one  is  not  of  necessity  an  election 
to  pursue  such  person  alone.^^ 

The  rules  pertaining  to  election  between  counts  are  designed  to  secure  single- 
ness of  issues  and  are  relegated  to  appropriate  titles."" 

§  2.  Election  hetween  rigliis  and  estates. — The  doctrine  of  election  between 
rights  is  confined  to  narrow  limits  and  cannot  rest  on  a  mere  unfounded  claim 
under  a  will.^^ 

An  acceptance  of  the  will  will  not,  in  absence  of  statute,  bar  other  rights  not 
inconsistent.^*  There  is  no  such  inconsistency  between  the  right  of  dower  and  the 
distributive  share  in  personalty  as  to  make  the  taking  of  one  an  exclusion  of  the 
other."*  Heirs  and  devisees  cannot  assert  a  title  hostile  to  their  right  of  inheritance 
or  to  the  will.®"  If  the  will  directs  payment  of  taxes  and  gives  all  the  real  estate 
to  the  wife,  she  cannot,  if  she  claim  under  the  will,  assert  a  homestead  exemption  in 
the  realty  as  against  the  husband's  creditors,  but  the  testator's  children  who  take  a 
remainder  may  claim  a  homestead  therein  during  their  unmarried  minority.*^ 
Rio-hts  in  hostility  to  a  testamentary  provision  must  be  seasonably  claimed,®^  and 
surviving  spouses  must  renounce  within  such  time  as  may  be  imposed  by  statute.®'* 


not  prevent  a  recovery  of  the  goods  Bold 
against  the  attaching  creditor — Garrett  v. 
Farwell  Co.,  199  111.  436. 

52.  Hill  V.  Combs,  92  Mo.  App.  242. 

53.  Acceptance  of  benefits  from  a  railroad 
relief  fund  constitutes  an  election  barring  a 
right  of  action  against  the  company  for  dam- 
ages but  a  mistake  in  instituting  such  action 
does  not  affect  the  right  to  benefit  from  the 
relief  fund  which  had  become  fixed — Chicago, 
etc.,  R.  Co.  V.  Bigley  (Neb.)  95  N.  W.  344. 

54.  Another  action  not  barred  by  an  at- 
tachment dismissed  without  prejudice — First 
Nat.  Bank  v.  Barse  Live  Stock  Commission 
Co.,  198  111.  232.  See,  also,  Garrett  v.  Farwell 
Co.,  199  111.  436. 

55.  Action  against  a  grantee  of  mortgaged 
premises  who  assumed  the  mortgage  to  re- 
cover a  personal  judgment  on  the  debt,  not 
an  election  barring  action  against  a  prior 
grantee  who  also  assumed  the  mortgage — 
Bossingham  v.  Syck,  118  Iowa,  192. 

56.  In  civil  cases.  Pleading.  In  prosecu- 
tions for  crime,  Indictment,  etc. 

57.  Does  not  apply  to  prevent  a  daughter 
from  claiming  under  a  conveyance  from  her 
mother  though  the  daughter  has  claimed  un- 
der her  father's  will  where  the  mother  dis- 
covering that  she  holds  certain  land  by  deed 
and  not  by  the  will  conveys  to  the  daughter 
Parkey  v.  Ramsey  (Tenn.)   76   S.  W.  812. 

58.  Code  1873,  §  2452— Klefer  v.  Gillett 
(Iowa)  94  N.  W.  270.  A  provision  for  joint 
occupancy  of  the  realty  by  the  wife  and 
daughter,    etc.,    held    not    inconsistent    with 

t[ower Id.      In    New    York    a    widow   cannot 

have  dower  In  addition  to  a  testamentary 
provision  for  payment  to  her  of  one-third  of 
the  income  of  the  realty  during  the  minority 
of  the  child,  and  on  the  termination  of  the 
trust  for  the  child  a  conveyance  of  one- 
third  of  the  realty  Itself — In  re  Gorden,  172 
N.  Y.  25,  11  Ann.  Cas.  397.  Where  no  pro- 
vision Is  made  for  the  widow  by  will  except 


tlje  creation  of  an  annuity  not  stated  to  be 
in  lieu  of  dower,  the  widow  is  not  required 
to  elect — Horstmann  v.  Flege,  172  N.  Y.  381. 
12  Ann.  Cas.  163.  Where  there  is  nothing  in 
the  terms  of  the  will  to  indicate  an  inten- 
tion on  the  part  of  the  testator  to  dispose 
of  the  vridow's  share  of  the  community  prop- 
erty, she  is  not  put  to  an  election — In  re 
Wick*!rsham's  Estate,  138  Cal.  355,  70  Pac. 
1076. 

59.  Though  she  take  the  value  of  dower 
in  money  (Rev.  St.  1892,  §§  4176,  5964)  — 
Hutchings  v.  Davis  (Ohio)  67  N.  E.  251. 
Rights  under  Civ.  Code.  §§  228,  236.  regarded 
as  separate  from  rights  under  section  1852 
— Dahlman  v.  Dahlman  (Mont.)  72  Pac.  748. 

60.  Under  statutes  providing  that  a  w^idow 
holding  land  through  marriage  shall  not  on 
re-marriage  alienate  such  land  so  as  to  di- 
vert it  f I  om  the  children  by  the  marriage 
through  which  the  property  came  to  lier.  the 
children  by  acceptance  on  their  mother's 
death  of  tlie  proceeds  of  property  received 
by  her  in  exchange  for  property  which  she 
conveyed  to  the  second  husband  become  bar- 
red from  pursuing  the  property  received 
through  the  first  marriage — Pond  v.  Wood 
(Ind.  App.)  69  N.  E.  172.  Election  is  not  re- 
quired in  an  action  by  a  devisee  to  enforce 
specific  performance  of  a  contract  to  devise 
jertain  land  as  to  whether  complainant  will 
take  under  the  will  or  under  the  contract — 
Price  V.  Price  (N.  C.)  45  S.  E.  855. 

61.  Kiesewetter  v.  Kress,  24  Ky.  L.  R. 
1239,  70  S.  W.  1065. 

63.  Election  to  take  land  in  lieu  of  lega- 
cies must  be  made  before  the  land  is  sold  by 
the  executor  under  a  power — Hanbest  v. 
Grayson  (Pa.)  55  Atl.  786. 

63.  To  be  entitled  to  the  year's  support 
under  Code  1883,  §  2116,  the  widow  must  re- 
nounce the  will  and  bring  suit  within  six 
months  from  its  probate — Perkins  v.  Brink- 
ley   (N.  C.)   45  S.  E.  465.     On  affirmance  of  a 


§  2 


ELECTION  BETWEEN  RIGHTS  AND  ESTATES. 


995 


Ignorance  is  not  an  excuse  for  delay."  A  wife  cannot  be  held  to  an  election  made 
at  the  time  her  husband  executes  his  will,<«^  though  election  may  be  by  antenuptial 
agreement.^® 

The  election  must  be  unequivocal,^^  and  understandingly,^^  and  fairly  and  freelv 
made.<'»  A  written  declaration  or  admission  of  the  mere  capacity  of  heirship  made 
by  the  descendants  of  a  dead  man  does  not  of  itself  constitute  an  acceptance  of  his 
succession,  nor  does  a  written  admission  of  the  fact  that  the  widow,  in  the  absence 
of  action  by  the  creditors  of  the  succession,  is  entitled  to  be  recognized  as  usufruc- 
tuary of  that  portion  of  the  estate  devolving  on  the  legal  heirs,  and  acceptance  of 
the  succession  cannot  be  inferred  against  persons  styling  themselves  heirs  who  have 
claimed  nothing  as  such,  taken  no  affirmative  action  in  assertion  of  their  rights,  or 
contracted  as  such.^"  Silence  and  inaction  by  an  heir  after  reaching  majority  may 
show  an  election  to  accept  a  family  settlement  made  in  his  minority  so  as  to  prevent 
his  heirs  from  claiming  otherwise.^^  An  election  to  take  land  in  place  of  the  pro- 
ceeds of  an  equitable  conversion  must  be  by  unequivocal  acts  joined  in  by  all  persons 
interested  in  the  fund  which  would  be  derived  from  conversion.^^ 

A  court,  in  exercising  an  election  for  an  incompetent,  should  take  into  account 
not  only  the  value  of  the  property  but  the  circumstances  surrounding  the  life  and 
conditions  of  the  parties,  the  contents  of  the  will,  and  the  probabilities  as  to  what 
he  would  do  if  he  were  able  to  elect  for  hiinself .^' 

WHiere  the  widow  elects  to  take  a  child's  share  rather  than  dower  or  under  the 
will,  she  is  bound  to  contribute  ratably  from  her  share  to  the  payment  of  the  debts 


decree  sustaining'  a  will  from  which  the 
widow  has  appealed,  she  must  file  her  elec- 
tion v/ithin  six  months  from  the  rendition  of 
the  original  decree,  unless  she  has  obtained 
permission  of  the  probate  court  to  an  exten- 
sion of  the  time.  Pub.  St.  c.  127.  §  18 — Bun- 
ker V.  Murray,  182  Mass,  335. 

64.  Unless  time  was  seasonably  extended. 
Election  must  be  within  one  year  under  Ken- 
tucky St.  1899,  §  1404 — Log-sdon  v.  Haney,  25 
Ky.  L.  R.  245,  74  S.  W,  1073. 

65.  An  acceptance  by  the  wife  of  the  pro- 
visions of  her  husband's  will  at  the  time  of 
its  execution  in  lieu  of  dower  and  other  in- 
terest In  his  estate  does  not  prevent  her, 
after  the  husband's  death  electing  to  take 
contrary  to  the  will  under  Rev.  St.  1899,  §§ 
2948,  2949 — Spratt  v.  Lawson  (Mo.)  75  S.  W. 
642. 

66.  Antenuptial  relinquishment  of  all  In- 
terest in  the  husband's  property  (Code  1883. 
§  2116) — Perkins  v.  Brinkley  (N.  C.)  45  S.  E. 
465.  Acceptance  of  a  bequest  of  all  the  hus- 
band's personal  property  in  addition  to  the 
property  given  by  an  antenuptial  agreement 
Is  an  election  preventing  the  widow  from 
claiming  her  award  under  Starr  &  C.  Ann.  St. 
p.  313,  c.  3,  par.  76,  the  antenuptial  agreement 
providing  for  a  cash  payment  in  lieu  of  dow- 
er, widow's  award  and  homestead  right — 
Friederich  v.  "Wombacher  (111.)   68  N.  B.  459. 

G7.  Retention  of  property  by  the  wife 
which  had  been  temporarily  assigned  to  the 
husband  for  occupancy  as  a  homestead  dur- 
ing legal  proceeding  does  amount  to  an  ac- 
ceptance of  it  as  a  homestead  barring  her 
right  to  dower — Hogg  v.  Potter  (Ky.)  76  S. 
W.  35.  Election  not  shown  by  the  fact  of 
the  widow's  retention  of  the  residence  giv- 
en her  in  lieu  of  dower  by  antenuptial  con- 
tract during  assignment  of  dower — Moran 
V.  Stewart,  173  Mo.  207.  Dower  is  not  ex- 
tinguished    by     merger     on     an     acceptance 


from  the  heirs  of  a  quitclaim  deed  of  the 
premises  In  which  dower  is  claimed,  where 
a  different  intention  may  be  reasonably  de- 
duced from  the  circumstances — Wettlaufer 
V.  Ames  (Mich.)  94  N.  W.  950.  The  fact 
that  the  widow  qualifies  as  executrix  of 
her  husband's  will  and  unites  with  a  co-ex- 
ecutor in  foreclosing  mortgages  belonging 
to  the  estate  and  buying  in  the  property  for 
the  use  of  the  estate,  does  not  estop  her 
from  afterward  dissenting  from  the  will  and 
electing  to  take  a  child's  part  in  lieu  of  the 
provisions  of  the  will  and  of  dower  (Rev.  St. 
1892,  §§  1830,  1831,  1833)— Benedict  v.  Wil- 
marth   (Fla.)   35  So.  84. 

68.  A  writing  which  could  be  construed  to 
be  an  agreement  to  take  less  than  the  wid- 
ow's distributive  share  will  not  be  regarded 
as  an  election  for  such  purpose,  where  it  is 
not  executed  understandingly  and  a  waiver 
of  the  widow's  right  to  administer  which 
contains  a  statement  that  the  widow  wishes 
to  receive  a  child's  part  in  the  division  of 
the  estate,  does  not  amount  to  a  waiver  of 
her  distributive  share — Evans'  Adm'r  v. 
Evans.  24  Ky.  L.  R.  2421.  74  S.  W.  224. 

69.  In  re  Wickersham's  Estate.  138  Cal. 
355,  70  Pac.   1076. 

70.  Grifl^n  v.  Burrls,  109  La.  216. 

71.  An  heir  having  a  right  to  claim  prop- 
erty under  her  mother  or  her  grandfather 
will  be  deemed  to  have  elected  to  abide  by 
a  distribution  of  her  grandfather's  estate 
setting  off  certain  property  to  her  subject  to 
a  life  estate  to  her  father,  by  living  on  such 
property  with  her  father,  acquiescing  in  his 
management  and  seeking  no  account  of  the 
rents  and  profits — Appeal  of  Ward.  75  Conn. 
598. 

73.  In  re  Ranch's  Estate.  21  Pa,  Super. 
Ct.  60. 

73.     In  re  Robinson's  Estate,  88  Minn.  404. 


996 


ELECTRICITY. 


and  costs  of  administering  the  estate  up  to  and  including  the  point  of  actual  distri- 
bution, but  her  share  is  superior  to  legacies.''* 

ELECTRICITY." 

Electric'*  franchises'''  cannot  be  granted  by  minor  divisions  of  the  state  unless 
00  empowered.^'  The  use  of  streets  for  transmission  of  electric  power  on  a  system 
of  poles  and  wires  has  been  held  an  added  servitude;^®  the  operation  of  electric 
railroads  not.*"  Franchises  are  limited  by  their  terms.*^  The  franchise  is  a  con- 
tract whose  obligation  may  not  be  impaired/^  and  service  rates  are  protected  from 
unreasonable  regulation. '^^     Injunction  is  the  proper  remedy  for  infringement.** 

Contracts  have  been  construed  in  cases  cited.*" 

A  degree  of  care  commensurate  with  the  highly  dangerous  character  of  elec- 
tricity is  due  from  one  who  uses  it  to  prevent  injuries  to  others.*®  Necessary  care 
must  be  taken  at  places  where  others  have  a  right  to  go,^'  or  are  likely  to  go.**     In- 


74.  Rev.  St.  1892,  §§  1830,  1831.  1833— Ben- 
edict V.  Wilmarth  (Fla.)   35  So.  84. 

T5.  The  law  pertaining  specifically  to 
telegraphs  and  telephones  is  treated  in  a 
separate  title.  Telegraphs  and  Telephones. 

70.  Gas  and  other  illuminating  light  held 
not  to  include  electricity — People's  Elec. 
Light  &  Power  Co.  v.  Capital  Gas  &  Elec. 
Light  Co.  (Ky.)  75  S.  W.  280.  An  electric 
railway  company  chartered  as  a  carrier 
may  not  transfer  rights  to  others  to  vend 
electricity — Carthage  v.  Carthage  Light  Co., 
97  Mo.  App.  20. 

77.  See  article  Franchises. 

78.  Power  to  grant  gas  franchise  not 
enough — Carthage  v.  Carthage  Light  Co.,  97 
Mo.  App.  20.  Use  of  streets  may  be  given 
where  ordinary  use  will  not  be  obstructed 
— McWethy  v.  Aurora  Elec.  Light  &  Power 
Co..  202  111.  218.  Right  not  availed  of  for  12 
years  is  lost — Id.  A  requirement  tliat  per- 
mission of  certain  officials  be  first  obtained 
may  be  waived  by  the  city — Id.  A  convey- 
ance of  a  municipal  gas  plant  with  an  ex- 
clusive francliise  imposing  no  obligation  on 
the  grantee  to  furnish  any  other  light  than 
gas  did  not  give  the  grantee  an  exclusive 
right  to  furnish  electric  liglits — People's 
Elec.  Light  &  Power  Co.  v.  Capital  Gas  & 
Elec.  Light  Co.   (Ky.)   75  S.  W.  280. 

79.  Goddard  v.  Chicago,  etc..  R.  Co.,  104 
111.  App.  526;  Union  Elec.  Tel.  Co.  v.  Apple- 
quist.  104  111.  App.  517;  Goddard  v.  Chicago, 
etc.,  R.  Co.,  104  111.  App.  533;  Bronson  v. 
Albion  Tel.  Co.  (Neb.)  93  N.  W.  201,  60  L.  R. 
A.  426.      See  Eminent  Domain,  post,  p.  1011. 

80.  Parrish  v.  Hamilton,  etc..  Traction 
Co..  23  Ohio  Circ.  R.  527;  Lonaconing  Mid- 
land &  F.  R.  Co.  V.  Consolidation  Coal  Co., 
95   Md.    630. 

81.  Electric  "railway"  does  not  include 
"lighting" — Carthage  v.  Carthage  Light  Co., 
97  Mo.  App.  20.  A  contract  to  furnish  elec- 
tric lights  held  not  to  give  the  grantee  ah 
exclusive  right  to  furnish  electric  lights — 
People's  Elec.  Light  &  Power  Co.  v.  Capital 
Gas  &  Elec.  Light  Co.  (Ky.)  75  S.  TV.  280. 
May  lease  properties  to  like  companies — 
Crowe  v.  Nanticoke  Light  Co.  (Pa.)  55  Atl. 
1038.  But  cannot  transfer  portion  of  indi- 
visible frnnchise— Carthage  v.  Carthage 
Light  Co..  97  Mo.  App.   20. 

82.  Southwest  Mo.  Light  Co.  v.  Joplin, 
113  Fed.  817;  Hot  Springs  Elec.  Light  Co.  v. 
Hot  Springs,   70  Ark.   300. 


83.  See  Constitutional  Law,  ante,  p.  593. 

84.  People's  Elec.  Light  &  Power  Co.  v. 
Capital  Gas  &  Elec.  Light  Co.  (Ky.)  75  S. 
W.  280. 

85.  To  take  certain  amount  of  power  con- 
strued— Laclede  Power  Co.  v.  Stillwell,  97 
Mo.  App.  258.  To  permit  stringing  of  wires 
on  structure  construed — Wagner  v.  Brooklyn 
Heights  R.  Co.,  174  N.  Y.  520.  The  contract 
contemplates  reasonable  access  to  make  re- 
pairs— Id.      See,    also.    Contracts    generally. 

86.  Economy  Llglit  &  Power  Co.  v.  Hiller, 
203  III.  518;  Wagner  v.  Brooklyn  Heights  R. 
Co.,  174  N.  Y.  520;  Katafiasz  v.  Toledo  Consol. 
Elec.  Co.,  24  Ohio  Circ.  R.  127.  That  wires 
are  reasonably  safe  is  not  sufilcient — Geis- 
mann  v.  Missouri  Edison  Elec.  Co.,  173  Mo. 
654.  Must  know  conditions  of  wires  and  to 
use  utmost  care  to  protect  same  by  proper 
insulation — Lexington  R.  Co.  v.  Fain's  Adm'r. 
24  Ky.  L.  R.  1443.  71  S.  W.  628;  Geismann  v. 
Missouri  Edison  Elec.  Co.,  173  Mo.  654;  Wag- 
ner V.  Brooklyn  Heights  R.  Co.,  174  N.  Y.  520. 
Such  care  as  a  reasonably  prudent  man 
would  exercise  under  the  circumstances  con- 
sidering, etc. — Neal  v.  Wilmington,  etc.,  Elec. 
R.  Co.,  3  Pen.  (Del.)  467;  Kennealy  v.  West- 
chester Elec.  R.  Co.,  86  App.  Div.  (N.  Y.) 
293.  Must  use  high  degree  of  care  to  pre- 
vent injury  to  persons  using  a  bridge,  tak- 
ing into  consideration  all  the  uses  to  which 
the  bridge  is  put — Nelson  v.  Branford  Light- 
ing &  Water  Co.,  75  Conn.  548.  Only  ordi- 
nary care  in  the  maintenance  of  wires  and 
fixtures  and  appliances — Quincy  Gas  &  Elec. 
Co.  V.   Bauman,   101   111.  App.  600. 

87.  Potts  V.  Shreveport  Belt  R.  Co.  (La.) 
34  So.  103.  Under  contract  to  carry  wires 
on  a  structure  a  lineman  has  a  right  to  go 
thereon  to  make  repairs— Wagner  v.  Brook- 
lyn Heights  R.  Co.,  69  App.  Div.  (N.  Y.)  349. 
Acceptance  of  pass  with  assumption  of  risk 
held   not  to  make  defense — Id. 

88.  Wires  over  a  public  bridge;  in.iured 
person  was  not  rightfully  on  the  bridge — 
Nelson  v.  Branford  Lighting  &  Water  Co.,  75 
Conn.  548.  Must  exercise  all  reasonable  pre- 
caution against  passing  a  dangerous  current 
of  electricity  through  a  guy  wire  attnched  to 
a  pole  on  a  vacant  lot  in  densely  peopled  part 
of  the  city — New  Omaha  Thomson-Houston 
Elec.  Light  Co.  v.  Johnson  (Neb.)  93  N.  W. 
778.  W^ires  strung  across  a  viaduct  without 
the  railing  but  at  a  place  where  small  boy.«i 
were   in    the    habit    of   climbing   and    coming 


ACTIONS  FOR  INJURIES. 


997 


spections  must  be  thorough.*"  External  or  atmospheric  currents  should  be  guarded 
against.^0  After  discovery  of  the  dangerous  condition  of  the  wire,  it  is  the  duty  of 
the  company  to  act  promptly  in  making  repairs.^^  A  company  operating  an  elec- 
tric plant  is  required  to  use  the  appliances  with  the  same  degree  of  care  as  if  they 
were  actually  owned  by  the  company.®^ 

The  defendant's  negligence  must  be  the  proximate  cause  of  injuries  resulting 
from  electricity."^     The  injured  person  must  be  free  from  contributory  negligence.'* 

Actions. — Where  different  companies  contribute  to  the  injury,  the  liability  is 
joint."^  The  actual  owners  of  the  plant  and  not  an  assignor  are  liable  for  injuries 
though  the  franchise  forbade  its  assignment."* 

Pleading. — Holdings  as  to  sufficiency  of  pleadings,"^  and  variance  between  plead- 
ing and  proof,  will  be  found  in  the  footnote.®^ 

Evidence. — The  doctrine  of  res  ipsa  loquitur  is  not  of  universal  application  to 
injuries  from  electricity.""  The  fact  of  insulation  recognizes  the  inherent  danger 
of  a  wire.^  It  is  the  fact  of  injury  by  electricity  and  not  the  manner  that  is  im- 
portant.^    Proof  need  not  be  made  by  an  eye  witness.'     The  condition  of  appli- 


close    to    wires — Consolidated    Elec.    Light   & 
Power  Co.  v.  Healy,  65  Kan.  798,  70  Pac.  884. 

89.  Potts  V.  Shreveport  Belt  R.  Co.  (La.) 
34  So.  103;  Wagner  v.  Brooklyn  Heights  R. 
Co..  174  N.  Y.  520. 

90.  Telephone  wires  left  standing  after 
disconnecting  instrument — Southern  Bell 
Tel.  Co.  V.  McTyer  (Ala.)  34  So.  1020.  Lia- 
bility for  injuries  to  a  customer,  not  avoided 
by  reason  of  the  consent  of  the  store-keeper 
that  the  wires  might  be  left  twisted  to- 
gether  inside   the   building — Id. 

91.  Evidence  of  gross  negligence  In  de- 
laying to  obviate  danger  after  notice  that 
appliances  were  out  of  order — Lutolf  v.  Unit- 
ed Elec.  Light  Co.  (Mass.)  67  N.  E.  1025. 
Case  is  for  the  jury  w^here  the  break  in  wire 
of  police  alarm  system  was  known  to  the 
police  within  an  hour  after  it  occurred  aftd 
it  was  also  known  that  the  w^ire  was  In 
close  proximity  to  other  wires  carrying  dan- 
gerous cTirrents  (It  fell  across  trolley  feed 
wire) — Herron  v.  Pittsburg,  204  Pa.  509. 
Telephone  company  whose  wires  were  burn- 
ed out  in  the  night  time  by  contact  with 
light  wires  and  dangled  in  a  street  not  neg- 
ligent in  law  in  failing  to  discover  condi- 
tions by  8:30  the  next  morning — Economy 
Light  &  Power  Co.  v.  Hiller.   203  111.  518. 

92.  Smith  v.  Brooklyn  Heights  R.  Co.,  82 
App.  Div.    (N.  Y.)   531. 

93.  Csui.ses  held  proximate.  Bringing  tel- 
ephone wire  in  contact  with  electric  wire. 
— death  of  lineman — Cumberland  Tel.  Co.  v. 
Ware's  Adm'x  (Ky.)  74  S.  W.  289.  Allowing 
a  pulley  wire  of  arc  lamp  to  remain  without 
Insulation  and  come  in  contact  with  feed 
wires. — injuries  to  a  boy  passing  along  the 
sidewalk  and  taking  hold  of  the  wire — Lex- 
ington R.  Co.  V.  Pain's  Adm'r,  24  Ky.  L.  R. 
1443,  71  S.  W.  628. 

94.  Katafiasz  v.  Toledo  Consol.  Elec.  Co.. 
24  Ohio  Circ.  R.  127.  That  painter  on  the 
balcony  of  a  house  came  in  contact  with  live 
wire  few  inches  from  the  corner  of  the  bal- 
cony, is  not  conclusive  evidence — Consoli- 
dated Gas  Co.  V.  Brooks  (N.  J.  Law)  53  Atl. 
296.  Purposely  taking  hold  of  wire  and 
causing  contact  with  charged  wire,  is  negli- 
gence— Lexington  R.  Co.  v.  Fain's  Adm'r,  24 
Ky.  L.  R.  1443.  71  S.  W.  628. 

95.  Electric  wire  allowed  to  sag  and 
charge    telephone    wires — Economy    Light    & 


Power  Co.  v,  Hiller.  203  111.  518.  A  city.  Its 
contractor  and  the  telephone  company  are 
jointly  liable  where  the  contractor  strung 
defectively  insulated  wires  and  telephone 
company  placed  wires  in  contact — Cumber- 
land Tel.  Co.  V.  Ware's  Adm'x  (Ky.)  74  S. 
W.   289. 

96.  Gordon  v.  Ashley,  77  App.  Dlv.  (N.  T.) 
525. 

97.  Pleading  sufficient  to  allege  liability 
for  death  due  to  delay  in  restoring  worn  out 
insulation — Geismann  v.  Missouri  Edison 
Elec.  Co.,  173  Mo.  654.  To  charge  bad  wir- 
ing in  a  jail  whereby  fire  resulted  and 
caused  death  of  inmate — Miller  v.  Ouray 
Elec.  Light  &  Power  Co.  (Colo.  App.)  70  Pac. 
447.  Methods  of  inspection  sufficiently  chal- 
lenged by  allegation  that  defendant  negli- 
gently and  carelessly  suffered  and  permitted 
its  wires  to  be  out  of  repair — Lutolf  v.  Unit- 
ed Elec.   Light  Co.    (Mass.)    67  N.   E.  1025. 

An  ndmis.sion  that  on  the  day  named  de- 
fendant was  operating  the  street  railroad 
propelled  and  worked  by  electric  power,  is 
an  admission  that  defendant  was  using  ap- 
pliances and  mechanical  devices  necessary 
for  its  operation — Smith  v.  Brooklyn  Heights 
R.   Co.,   82   App.   Div.    (N.  Y.)    531. 

98.  No  variance  between  allegation  that 
wire  was  charged  and  for  that  reason  was 
dangerous,  and  evidence,  showing  that  It 
might  be  charged  and  was  so  charged  and 
was  dangerous  at  the  time  of  the  injury — 
Melican  v.  Missouri-Edison  Elec.  Co.,  90  Mo. 
App.  595. 

99.  It  applies  to  an  Injury  from  a  live 
trolley  wire  fallen  In  the  street  (Smith  v. 
Brooklyn  Heights  R.  Co.,  82  App.  Div.  [.N.  Y.] 
531)  though  plaintiff  Introduced  evidence 
showing  that  the  fall  was  caused  by  the 
trolley  slipping  off  and  striking  some  of  the 
supporting  wires  (Clancy  v.  New  York.  etc.. 
R.  Co.,  82  App.  Div.  [N.  Y.]  563);  also  in 
case  of  death  from  contact  with  electric 
wires  at  a  place  where  deceased  had  a  right 
to  be  and  might  be  expected  to  be.  Geis- 
mann V.  Missouri-Edison  Elec.  Co..  173  Mo. 
654.  No  presumption  of  negligence  by  the 
happening  of  the  injury — Crowe  v.  Nanti- 
coke   Light  Co.    (Pa.)    55  Atl.   1038. 

1.  Wagner    v.    Brooklyn    Heights    R^-  Co 
174  N.  Y.  520. 

2.  Smith   V.    Brooklyn    Heights   R.    Co.,    82 


998 


EMBEZZLEMENT. 


ances,*  and  the  cost  of  making  changes  to  render  them  more  safe  may  be  shown." 
Ordinances  and  rules  as  to  inspection  are  admissible/  likewise  the  clothing  worn 
by  plaintiff  at  the  time  of  an  injury  caused  by  a  burn  from  a  live  wire.''  The  con- 
dition of  the  wire  causing  the  injury  shortly  after  the  accident  may  be  shoAvn.® 
Holdings  as  to  sufficiency  of  evidence  are  grouped  in  the  footnote.' 

Questions  for  the  jury  and  instructions. — Questions  of  negligence  are  for  the 
jury.^"     See  footnote  as  to  pertinency  and  sufficiency  of  instructions.^^ 

EMBEZZLEMENT." 

Elements. — To  constitute  embezzlement,  the  property  embezzled  must  be  that 


App.  Div.  (N.  Y.)  531.  Liable  whether  in- 
Jury  was  by  physical  contact  with  a  trolley 
wire  or  by  ground  currents  caused  by  the 
wires — Clancy  v.  New  York,  etc.,  R.  Co.,  82 
App.  Div.  (N.  Y.)  563.  Plaintiff  need  not 
prove  that  at  the  exact  point  of  contact  the 
Insulation  was  off  the  wire — Geismann  v. 
Missouri-Edison    Elec.    Co.,    173    Mo.    654. 

3.  Consolidated  Gas  Co.  v.  Brooks  (N.  J. 
Law)   53  Atl.  296. 

4.  In  an  action  for  death  resulting  from 
contact  with  wires  hung  on  a  highway 
bridge,  evidence  tending  to  show  that  the 
pulley  on  which  the  wires  were  hung,  was 
put  In  the  proper  place  in  being  bolted  to 
the  bridge  rather  than  out  in  the  stream  is 
admissible — Nelson  v.  Branford  Lighting  & 
Water  Co.,    75   Conn.   548. 

5.  In  an  action  for  death  caused  by  con- 
tact with  a  wire  hung  along  the  truss  bridge, 
evidence  as  to  what  the  cost  of  elevating 
the  wire  above  truss  of  the  bridge  would 
have  been,  was  properly  admitted — Nelson  v. 
Branford  Lighting  &  Water  Co.,  75  Conn. 
648. 

6.  Herron  v.  Pittsburg,  204  Pa.  509. 

T.  Quincy  Gas  &  Elec.  Co.  v.  Baumann, 
203  111.  295. 

8.  Gloucester  Elec.  Co.  v.  Kankas  (C.  C. 
A.)   120  Fed.   490. 

9.  Sufficieiit.  To  show  injury  received  by 
voluntary  contact  with  a  guy  wire,  after 
notice — New  Omaha  Thomson-Houston  Elec. 
Light  Co.  V.  Johnson  (Neb.)  93  N.  W.  778. 
Whether  wire  was  insulated  and  whether 
contact  therewith  caused  decedent's  death — 
Economy  Light  &  Power  Co.  v.  Sheridan. 
200  111.  439.  To  show  defective  insulation  of 
wire  at  time  it  was  strung — Kennealy  v. 
Westchester  Elec.  R.  Co.,  86  App.  Div.  (N. 
Y.)  293.  To  show  negligence  respecting  a 
wire  strung  across  a  highway  bridge — Nel- 
son V.  Branford  Lighting  &  Water  Co.,  75 
Conn.  548.  To  show  ordinary  care  by  de- 
fendant— Wagner  v.  Brooklyn  Heights  R. 
Co.,  174  N.  Y.  520. 

Insufficient.  To  show  contributory  negli- 
gence— Nelson  v.  Branford  Lighting  &  Wa- 
ter Co.,  75  Conn.  548;  Lutolf  v.  United  Elec. 
Light  Co.    (Mass.)    67  N.  E.   1025. 

Evidence  held  to  authorize  the  giving  of 
binding  instruction  for  defendant — Crowe  v. 
Nanticoke  Light  Co.   (Pa.)  55  Atl.  1038. 

10.  Failure  to  inspect — Lutolf  v.  United 
Elec.  Light  Co.  (Mass.)  67  N.  E.  1025.  Con- 
tributory negligence — Lexington  R.  Co.  v. 
Pain's  Adm'r,  24  Ky.  L.  R.  1443.  71  S.  W. 
628;  Geismann  v.  Missouri-Edison  Elec.  Co., 
173  Mo.  654;  Fitzgerald  v.  Edison  Elec.  Il- 
luminating Co.   (Pa.)  56  Atl.  350. 

11.  An  instruction  that  if  electric  wires 
had  the  appearance  of  being  properly  insu- 


lated It  was  inducement  to  risk  contact  with 
them  though  announcing  an  abstract  propo- 
sition of  law,  and  did  not  purport  to  cover 
the  whole  cause,  was  not  prejudicial — Geis- 
mann V.  Missouri-Edison  Elec.  Co..  173  Mo. 
654.  An  instruction  that  it  was  incumbent 
on  defendant  to  keep  its  w^ires  reasonably 
safe,  is  properly  given  on  a  petition  aver- 
ring that  death  was  caused  by  contact  with 
one  of  defendant's  electric  wires,  upon  which 
the  insulation  had,  through  defendant's  neg- 
ligence, become  worn  off  and  the  current 
exposed,  and  that  the  defect  had  existed  a 
long  time  prior  to  the  day  of  the  accident, 
and  which  defendant  knew  or  might  have 
known — Id.  An  instruction  that  if  decedent 
knew  or  should  have  known  of  the  danger 
resulting  from  contact  ■^^•Ith  an  insulated 
wire,  and  the  w^ire  was  seen  or  should  hav^ 
been  seen  by  him,  and  he  negligently  came 
in  contact  therewith,  the  verdict  should  be 
for  defendant,  is  properly  modified  by  add- 
ing "and  knew  that  defendant's  w^ire  was  at 
some  point  not  properly  insulated" — Id.  An 
instruction  on  the  negligence  of  decedent  in 
failing  to  wear  a  rubber  coat,  boots  or 
gloves,  was  properly  limited  by  qualification 
IS  to  their  practicability  in  decedent's  sit- 
uation as  a  sign  hanger — Id.  An  instruction 
that  question  of  negligence  on  the  part  of 
defendants  and  care  on  the  part  of  plaintiff 
were  for  the  jury  is  not  objectionable  where 
the  instruction  further  explained  that  it  was 
their  duty  and  province  to  determine  those 
questions  of  fact  under  the  law  and  evidence 
in  the  case — Economy  Light  &  Power  Co.  v. 
Killer,  203  111.  518.  An  instruction  in  an  ac- 
tion against  a  telephone  and  electric  light 
company  for  injuries  that  if  the  injury  was 
caused  by  the  negligence  of  defendants  or 
either  of  them  then  plaintiff  could  recover 
is  not  prejudicial  though  not  limiting  re- 
covery to  the  defendant  proved  guilty;  the 
court  having  instructed  that  the  telephone 
company  should  not  be  found  guilty  unless 
its  negligence  caused  the  accident  and  also 
having  given  blank  verdicts  suitable  to  the 
different  contingencies  and  there  being  no 
doubt  as  to  the  negligence  of  the  electric 
light  company — Id.  An  instruction  that  on 
all  evidence  of  the  case,  deceased  having 
been  warned  to  keep  away  from  a  pole,  but 
having  persisted  in  examining  it,  his  act 
amounted  to  contributory  negligence  wheth- 
er he  knew  the  precise  nature  of  the  danger 
or  not.  was  properly  refused  where  there 
was  evidence  that  deceased  passing  along 
a  sidewalk  near  the  pole  received  the  fafal 
shock  without  touching  or  attempting  to 
touch  the  pole — Lutolf  v.  United  Elec.  Light 
Co.   (Mass.)    67  N.  E.  1025. 

12.     Though  matters  pertaining  to  the  law 


INDICTMENT. 


999 


of  another,"  and  must  have  been  in  defendant's  possession  by  virtue  of  an  office  or 
employment/*  and  there  must  have  been  an  actual  appropriation  thereof,"  with 
felonious  intent."  One  who  with  felonious  intent  urged  the  employer  to' intrust 
the  money  to  the  servant  is  guilty  as  a  principal." 

Indictments^  in  the  language  of  the  statute  is  sufficient."     The  money  need  not 
be  described,^"  and  an  indictment  charging  embezzlement  of  "about"  a  certain  sum  is 


•  if  embezzlement  are  here  discussed  even 
where  the  statute  denominates  the  offense 
larceny,  many  matters  of  procedure  of  gen- 
eral application  will  be  found  in  Larceny. 

13.  Proof  of  a  qualified  or  special  prop- 
erty In  the  alleged  owner  is  sufficient — 
Meacham  v.  State  (Fla.)  33  So.  983.  Under 
the  Alabama  statute  it  is  immaterial  wheth- 
er the  property  belonged  to  defendant's  prin- 
cipal if  it  came  into  defendant's  hands  by 
virtue  of  his  employment — Willis  v.  State, 
134  Ala.  429.  One  entitled  to  a  commission 
out  of  the  funds  is  a  joint  owner  and  can- 
not be  guilty  of  embezzlement  until  there 
has  been  an  accounting — McElroy  v.  People, 
202  111.  473.  A  claim  of  a  lien  not  asserted  in 
good  faith  is  no  defense — State  v.  Lewis,  31 
Wash.  75,  71  Pac.  778. 

14.  One  who  is  authorized  to  buy  goods 
for  another,  and  who  thereupon  sends  back 
a  memorandum  "you  have  bought  from  me" 
Hiich  goods,  is  a  seller  and  not  an  agent — 
State  V.  Brown,  171  Mo.  477.  The  secretary 
of  a  lodge  cannot  be  convicted  of  embezzle- 
ment where  it  was  not  his  duty  but  that  of 
another  secretary  to  receive  the  funds — Lov- 
ing V.  State  (Tex.  Cr.  App.)  71  S.  W.  277.  One 
intrusted  with  property  to  trade  for  ofher 
property  holds  the  same  as  agent — O'ilor- 
row  V.  State  (Tex.  Cr.  App.)  70  S.  W.  209. 
One  entrusted  with  funds  to  purchase  a  busi- 
ness in  which  he  and  the  owner  of  the 
money  are  to  be  partners  is  not  an  agent — 
Manuel  v.  State  (Tex.  Cr.  App.)  71  S.  W.  973. 
An  attorney  entrusted  with  money  to  loari 
on  security  to  be  approved  by  him,  is  liable 
under  the  act  relating  to  embezzlement  by 
attorneys — Commonwealth  v.  Barton,  20  Pa. 
Super.  Ct.  447. 

Public  Funds.  Money  collected  by  the 
-itate  department  from  foreign  governments 
to  indemnify  citizens  for  injuries  is  pub- 
lic money  of  the  United  States  within 
Rev.  St.  §  5488,  relating  to  embezzle- 
ment by  disbursing  officers — Kieckhoefer  v. 
United  States,  19  App.  D.  C.  405.  Assess- 
ments collected  by  a  city  to  meet  the  cost 
of  contemplated  repairs  are  public  funds — 
State  V.  Carter,  67  Ohio  St.  422.  Act  creating 
new  county  government  held  not  to  interfere 
with  powers  of  township  officers — Common- 
wealth V.  Carson,  21  Pa.  Super.  Ct.  48.  A 
warrant  duly  issued  for  an  approved  claim 
and  placed  in  the  custody  of  the  auditor  is  a 
subject  of  embezzlement — State  v.  Raby,  31 
Wash.  Ill,  71  Pac.  771.  Funds  collected  by 
a  city  officer  under  an  arrangement  for  im- 
munity between  the  city  and  persons  en- 
gaged in  unlawful  sale  of  liquor  are  subject 
of  embezzlement — State  v.  Patterson  (Kan.) 
71  Pac.  860.  One  required  by  a  rule  of  the 
treasury  department  to  deposit  money  on  a 
certain  day  is  within  Rev.  St.  §  5492,  as  to 
failure  to  deposit  when  required  to  do  so  by 
the  "Secretary  of  the  Treasury" — Dimmick 
V.  United  States  (C.  C.  A.)  121  Fed.  638.  A 
clerk  In  charge  of  a  branch  money  order  of- 
fice is  In  charge  of  funds  which  he  is  entitled 


to  draw   upon — United   States  v.   Royer.    122 
Fed.  844. 

15.  One  having  the  property  of  a  relative 
in  his  custody  and  appropriating  it  Is  liable 
though  he  gave  her  a  note  therefor,  she  not 
understanding  the  transaction — Jackson  v. 
State  (Tex.  Cr.  App.)  70  S.  W.  760.  But  one 
who  openly  appropriated  money  and  ac- 
knowledged the  debt,  whereupon  the  em- 
ployer suspended  prosecution  has  been  held 
free  from  criminal  intent — McElroy  v.  Peo- 
ple, 202  111.  473.  A  temporary  conversion  la 
sufficient — People  v.  Jackson,  138  Cal.  462  71 
Pac.    566. 

16.  State  v.  McDonald  (N.  C.)  45  S.  E. 
582;  State  v.  Sienkiewiez  (Del.)  55  Atl.  346. 
Advice  of  counsel  after  the  conversion  is  no 
defense — State  v.  Patterson  (Kan.)  71  Pac 
860:  State  v.  Hunt   (R.  L)   54  Atl.   937. 

17.  Thomas  v.  State  (Tex.  Cr.  App.)  73  S 
W.  1045. 

18.  Duplicity  and  Joinder.  Indictment  of 
public  officer  held  not  to  charge  statutory 
offense  of  failure  to  pay  over  to  successor 
in  addition  to  embezzlement — Commonwealth 
V.  Carson.  21  Pa.  Super.  Ct.  48.  Indictment 
charging  bailee  with  embezzling  money  and 
failing  to  account  therefor  not  double — State 
V.  Humphreys  (Or.)  70  Pac.  824.  Indictment 
alleging  continuing  embezzlements  during  a 
period  of  several  months  held  not  double — 
State  V.  Dix  (Wash.)  74  Pac.  570.  Joinder  of 
counts  for  theft  and  for  embezzlement  held 
not  prejudicial — Davis  v.  United  States,  18 
.\pp.  D.  C.   468. 

19.  State  V.  Jones,  109  La.  125.  Indict- 
ment charging  In  general  terms  of  the  stat- 
ute failure  to  account,  the  property  and  em- 
ployment being  specifically  alleged  is  suffi- 
cient— State  V.  Whitworth,  30  Wash.  47,  70 
Pac.  254.  Statute  prohibits  embezzlement  of 
money  which  one  has  in  his  possession  by 
virtue  of  his  employment.  Indictment  In 
language  of'  statute  that  money  was  in  de- 
fendant's possession  by  virtue  of  his  em- 
ployment without  other  averment  of  own- 
ership of  money  was  held  sufficient — Wil- 
lis V.  State,  134  Ala.  429.  The  require- 
ment of  an  intent  to  defraud  not  being  spec- 
ified in  the  statute  relating  to  public  offi- 
cers but  being  inferred  from  the  words  "em- 
bezzle or  convert"  an  indictment  using  such 
words  is  sufficient  without  an  averment  of 
fraudulent  Intent — State  v.  Patterson  (Kan.) 
71  Pac.  860.  An  Indictment  in  the  language 
of  the  statute  but  failing  to  show  the  rela- 
tion of  defendant  to  the  person  defrauded  is 
bad — Commonwealth  v.  Barney,  24  Ky.  L.  R. 
2352,  74  S.  W.  181.  The  indictment  need  not 
allege  that  the  person  defrauded  was  a  "pri- 
vate person" — Spurlock  v.  State  (Tex.  Cr. 
App.)    77  S.  W.   447. 

20.  Dimmick  v.  United  States  (C.  C.  A.) 
121  Fed.  638;  State  v.  Bartholomew  (N.  J. 
Sup.)  54  Atl.  231.  An  averment  that  the 
money  was  lawful  money  of  the  United 
States  though  unnecessary  must  be  proved 
•ns  laid — State  v.   Neilon    (Or.)   73  Pac.   321. 


1000 


EMBLEMENTS  AND  NATURAL  PRODUCTS. 


snfficient,'*  and  variance  as  to  the  amount  is  not  fatal  ;^^  but  one  charging  posses- 
sion as  agent  of  "a  horse"  and  conversion  of  "said  mule"  is  bad.^'  The  name  of 
the  employer  and  nature  of  the  relation  must  be  alleged/*  but  not  whether  a  bailee 
was  paid  for  his  services.^^ 

Admissibility  of  evidence. — A  statement  from  which  defendant  paid  the  short- 
age therein  shown  is  admissible,^*  as  are  books  kept  by  defendant,-^  and  evidence 
of  other  offenses  when  part  of  a  system.^*  Defendant's  need  of  money  is  admissible 
to  show  motive.^®  Defendant's  declarations  are  admissible  against  him.'"  Evidence 
that  defendant  drew  the  money  from  a  bank  is  admissible  as  tending  to  show  con- 
version.'^ 

Sufficiency  of  evidence  in  particular  cases  is  discussed  in  the  footnote.'^ 
Instructions^^  must  cover  every  gi'ade  of  the  offense  which  the  jury  might 
find/*  and  must  require  fraudulent  intent.'® 

EMBLEMENTS  AND  NATURAL  PEODUCTS.s* 

Annual  crops  are  sometimes  regarded  as  chattels,'^  sometimes  as  part  of  the 


21.  Willis  V.  state,  134  Ala.  429. 

22.  State  v.  Lewis.  31  Wash.  75.  71  Pac. 
778;  State  v.  Hunt  (R.  L)  -54  Atl.  937.  Con- 
version of  any  part  of  the  property  de- 
scribed is  sufficient — State  v.  Sienkiewiez 
(Del.)   55  Atl.  346. 

23.  Duncan  v.  State  (Tex.  Cr.  App.)  70  S. 
W.   543. 

24.  State  V.  Holton,  88  Minn.  171.  Com. 
V.  Barney,  24  Ky.  L.  R.  2352.  74  S.  W.  181.  The 
mere  fact  that  the  name  of  the  owner  indi- 
cated that  it  was  a  building  and  loan  so- 
ciety is  insufficient  to  show  such  fact.  The 
prosecution  was  under  Code,  §  1918,  relating 
to  embezzlement  by  officers  of  such  asso- 
ciations— State  V.  Ames  (Iowa)  94  N.  V\^ 
231.  While  defendant's  office  or  employment 
should  be  correctly  stated,  misdescription  is 
not  always  fatal.  Defendant  was  described 
as  "treasurer"  instead  of  "collector"  and  It 
appearing  that  the  collector  was  ex  officio 
treasurer  it  was  held  that  the  error  was 
harmless,  the  statute  forbidding  reversal  for 
errors  not  prejudicing  defendant — State  v. 
Bartholomew  (N.  J.  Sup.)  54  Atl.  231. 

25.  State  v.  Humphreys   (Or.)   70  Pac.  824. 

26.  Willis  V.  State,  134  Ala.  429.  As  are 
the  reports  of  a  sheriff  of  tax  collections 
on  prosecution  for  embezzling  the  same — 
State  V.  Neilon   (Or.)   73  Pac.  321. 

27.  Books  of  public  officer — State  v.  Pat- 
terson (Kan.)  71  Pac.  860.  Falsification  of 
a  check  book  stub  not  traced  to  defendant 
cannot  be  shown — State  v.  Ames  (Iowa)  94 
N.  W.  231.  Manner  in  which  an  employe 
kept  his  books  to  conceal  defalcation — State 
V.  Pittam  (Wash.)  72  Pac.  1042. 

28.  Willis  V.  State,  134  Ala.  429.  Evi- 
dence as  to  the  manner  in  which  defendant 
obtained  the  money  is  not  inadmissible  be- 
cause it  shows  fraud  on  his  part — Jackson 
V.  Stato   (Tex.  Cr.  App.)   70  S.'  W.  760. 

29.  Govatos  v.  State,   116   Ga.   592. 

30.  Declarations  that  the  affair  was  at 
most  a  breach  of  trust,  etc..  admissible  to 
show  receipt  of  money — Jackson  v.  State 
(Tex.  Cr.  App.)   70  S.  W.  760. 

St.     State  V.  Woodward,  171  Mo.  593. 
32.     Evidence    ol    embezzlement    of    watch 
held   sufficient — State  v.   McGregor,   88  Minn. 


77.  Failure  to  account  for  shortage  held 
sufficient  to  show  criminal  intent — Willis  v. 
State,  134  Ala.  429.  Evidence  held  to  show 
that  defendant  was  entitled  to  commission 
and  insufficient  to  show  guilty  intent — Mc- 
Elroy  V.  People,  202  111.  473.  Evidence  of 
intent  held  for  the  jury — State  v.  Lewis,  31 
Wash.  75,  71  Pac.  778.  Evidence  held  to 
show  that  advice  of  counsel  was  sought  aft- 
er the  conversion — State  v.  Hunt  (R.  I.)  54 
Atl.  937.  Evidence  held  insufficient  to  show 
that  property  had  not  been  sold  to  defend- 
ant on  credit — People  v.  Goodrich,  138  Cal. 
472,  71  Pac.  509.  Evidence  of  failure  of  clerk 
in  the  mint  to  deposit  money  when  required 
by  regulations  to  do  so  lield  sufficient — Dim- 
mick  V.  United  States  (C.  C.  A.)  121  Fed. 
638.  Evidence  held  insufficient  to  show  em- 
bezzlement by  bailee  of  horse — State  v.  Ven- 
num  (Kan.)  74  Pac.  268.  Evidence  of  con- 
version of  funds  obtained  for  investment 
held  sufficient — People  v.  Hackett,  82  App 
Div.    (N.  Y.)    86. 

33.  Inadvertent  use  of  the  word  *'attor- 
ney"  referring  to  defendant  held  harmless — 
State  V.  Lewis,  31  Wash.  75,  71  Pac.  778. 
Held  to  sufficiently  cover  defendant's  right  of 
disposal  under  a  power  of  attorney — Jack- 
son v.   State    (Tex.   Cr.   App.)    70  S.    W.    760. 

34.  Petty  embezzlement  should  be  sub- 
mitted where  the  evidence  of  amount  is  not 
clear — Loving  v.  State  (Tex.  Cr.  App.)  71  S 
W.   277. 

3.'.  State  V.  Ames  (Iowa)  94  N.  W.  231; 
McElroy  v.  People.  202  111.  473;  State  v.  Ki- 
gali, 169  Mo.  659.  General  charge  held  to 
cover  requested  instruction  as  to  intent— 
Dimmick  v.  United  States  (C.  C.  A.)  121  Fed 
G3S.  Instruction  that  conversion  must  have 
been  "intentional  and  wilful"  properly  re- 
fused as  misleading — Willis  v.  State,  134  Ala 
429. 

30.  Mineral  products  being  governed  by 
a  distinct  body  of  law,  are  treated  in  Mines 
and  Minerals.  Matters  of  contract  respect- 
ing crops,  not  in  any  manner  controlled  by 
the  nature  of  the  subject  matter,  will  be 
found   in   Contracts,  Sales  and   similar   titles. 

37.  Swaftord  v.  Spratt.  93  Mo.  App.  631: 
Glass  V.  Blazer,  91  Mo.  App.  564. 


EMBLEMENTS. 


1001 


realty."  They  pass  without  mention  by  a  deed  of  the  land ;»»  but,  at  least  in  states 
where  they  are  held  to  be  personalty,  they  may  be  separately  sold*''  or  mortgaged." 
As  between  landlord  and  tenant,  the  right  to  the  crops  depends  on  the  terras  of 
the  contract."  A  mortgagor  is  entitled  to  growing  crops  pending  foreclosure  pro- 
ceedings,'*^  but  a  purchaser  on  foreclosure  of  a  vendor's  lien  has  been  held  to  be  en- 
titled to  the  crops.** 


38.  Within  the  statute  of  frauds — Kileen 
V.  Kennedy  (Minn.)  97  N.  W.  126;  Kirkeby  v. 
Erickson  (Minn.)  96  N.  W.  705.  Within 
homestead  exemption  laws — Moore  v.  Gra- 
ham (Tex.  Civ.  App.)  69  S.  W.  200. 

Note.  Effect  of  statute  of  frauds.  In  Ber- 
nal  V.  Hovious,  17  Cal.  541,  79  Am.  Dec.  147, 
the  fifteenth  section  of  the  Statute  of  Frauds, 
which  declares  that  "every  sale  made  by  a 
vendor  of  goods  and  chattels  in  his  posses- 
sion or  under  his  control,  and  every  assign- 
ment of  goods  and  chattels,  unless  the  same 
be  followed  by  an  actual  or  continued  change 
of  possession  of  the  things  sold  or  assigned, 
shall  be  conclusive  evidence  of  fraud  as 
against  the  creditors  of  the  vendor  or  the 
creditors  of  the  persons  making  such  assign- 
ment, or  subsequent  purchasers  in  good 
faith,"  was  held  not  to  apply  to  a  case  of 
growing  crops,  they  not  being  goods  and 
chattels  within  Its  meaning.  Bours  v.  Web- 
ster, 6  Cal.  661;  and  Visher  v.  Webster,  13 
Cal.  58,  to  the  same  effect. 

Although  growing  crops  are  chattels  and 
will  pass  by  a  verbal  sale,  yet  they  are  not 
susceptible  of  manual  delivery  until  harvest- 
ed and  therefore  are  not  until  harvested  "In 
the  possession  or  under  control  of  the  vendor 
within  the  meaning  of  the  statute."  Davis  v. 
McFarlane,  37  Cal.  634,  99  Am.  Dec.  340; 
Bours  v.  Webster,  6  Cal.  661;  Visher  v.  Web- 
ster, 13  Cal.  58,  to  the  same  effect;  Pacheco 
V.  Hunsacker,  14  Cal.  120;  Bernal  v.  Hovious, 
17  Cal.  541.  79  Am.  Dec.  147;  Bobbins  v.  Old- 
ham, 1  Duv.  28.  Such  construction  of  the 
statute  would  make  it  an  absolute  interdic- 
tion upon  the  sale  of  growing  crops,  unless 
the  vendor  were  willing  to  abandon  the  pos- 
session to  the  vendee  at  the  same  time.  Da- 
vis V.  McFarlane,  37  Cal.  634,  99  Am.  Dec.  340. 
There  Is  nothing  in  the  vegetable  or  fruit 
which  Is  an  interest  in  or  concerning  land 
when  severed  from  the  soil,  whether  trees, 
grass,  or  other  spontaneous  growth  (prima 
vestura)  or  grain,  vegetables,  or  any  kind  of 
crops  (fructus  Industriales),  the  product  of 
periodical  planting  and  culture.  They  are 
alike,  mere  chattels,  and  the  severance  may 
be  in  fact  as  when  they  are  cut  and  removed 
from  the  ground,  or  in  law  as  when  they  are 
growing,  and  the  owner  in  fee  of  the  land  by 
a  valid  conveyance  sells  them  to  another  per- 
son or  where  he  sells  the  land  reserving  them 
by  expressed  provisions.  Burner  v.  Piercy.  40 
Md.  212,  17  Am.  Rep.  591.  As  a  general  rule 
if  the  products  of  the  earth  are  sold  specific- 
ally, and  by  the  terms  of  the  contract  to  be 
separately  delivered  as  chattels,  the  sale  Is 
not  affected  by  the  fourth  section  of  the 
Statute  of  Frauds,  as  amounting  to  a  sale  of 
an  interest  in  land.  Burner  v.  Piercy,  40  Md. 
212,  17  Am.  Rep.  591.  If  the  contract  when 
executed  is  to  convey  to  the  purchaser  a 
mere  chattel,  though  it  may  be  In  the  interim 
a  part  of  the  realty,  it  Is  not  affected  by  the 
statute.  Burner  v.  Biercy,  40  Md.  212,  17  Am. 
Rep.  591.  If,  however,  the  contract  is  in  the 
interim  to  confer  upon  the  purchaser  an  ex- 
clusive right  to  the  land  for  a  time  for  the 
purpose   of  making   a   profit   of  the   growing 


surface.  It  Is  affected  by  the  statute  and  must 
be  In  writing,  although  the  purchaser  is  at 
the  last  to  take  from  the  land  only  a  chattel. 
Burner  v.  Biercy,  40  Md.  212.  17  Am.  Rep.  591. 
A  contract  for  the  sale  of  growing  crops 
raised  by  the  industry  of  man  and  the  culti- 
vation of  the  earth  is  not  within  the  statute 
Bloom  V.  Welsh,  27  N.  J.  L.  177;  Green  v. 
Armstrong.  1  Denio,  550;  Davis  v.  McFarlane. 
37  Cal.  634,  99  Am.  Dec.  340;  Flynt  v.  Conrad! 
61  N.  C.  190,  93  Am.  Dec.  588;  Brittain  v.  Mc- 
Kay, 23  N.  C.  265,  35  Am.  Dec.  738;  Walton  v. 
Jordan,  65  N.  C.  172;  Bond  v.  Coke,  71  N.  C. 
100;  Cook  V.  Steel,  42  Tex.  53.  In  Mcllvalne 
v.  Harris,  20  Mo.  457,  64  Am.  Dec.  196,  it  was 
held  that  growing  wheat  was  an  interest  in 
land  and  a  contract  concerning  It  within  the 
statute  of  frauds,  and  must  be  in  writing, 
and  that  parol  evidence  of  the  sale  of  the 
wheat  was  inadmissible. — From  extensive 
note  to  Dickey  v.  Waldo,  23  L.  R.  A.  449. 

39.  Gam  V,  Cordrey  (Del.)  53  Atl.  334; 
Marshall  v.  Homier  (Okl.)  74  Bac.  368; 
Kammrath  v.  Kidd  (Minn.)   95  N.  W.  213. 

Note.  Emblements  on  highways.  Where 
the  fee  of  a  highway  remains  In  the  abutter, 
he  Is  entitled  to  all  herbage  growing  thereon. 
Smith  V.  Langewald,  140  Mass.  205;  Blaker  v. 
Rich,  34  N.  H.  282;  Woodruff  v.  Neal,  28  Conn. 
165. — From  note  to  Beople  v.  Foss,  8  L.  R.  A 
473. 

40.  Glass  V.  Blazer,  91  Mo.  App.  564.  E3i- 
ther  a  future  crop  or  the  hope  of  a  crop  may 
be  sold.  Where  a  future  crop  is  sold  the 
consideration  must  be  returned  if  the  crop 
fails,  but  it  is  otherwise  If  the  mere  liope  of 
a  crop  Is  sold — Losecco  v.  Gregory,  108  La. 
648.  A  grant  of  all  timber  on  certain  lands 
needed  In  certain  operations  is  too  uncer- 
tain to  pass  any  present  interest  in  the 
timber  and  the  grantor  may  remove  It  before 
it  Is  needed — Kennedy  Stave  &  Cooperage 
Co.  V.  Sloss-Sheffleld  Steel  Co.  (Ala.)  34  So. 
372. 

41.  Chattel  mortgage  held  to  sufficiently 
describe  future  crops — Woods  v.  Rose,  135 
Ala.  297.  Mortgage  on  crops  by  one  who 
has  sublet  a  part  of  his  farm  on  shares  cov- 
ers only  crops  raised  by  him — Norfleet  v.  Ba- 
ker, 131   N.   C.   99. 

42.  Where  the  landlord  Is  to  receive  half 
the  crop  title  thereto  Is  In  him — Northness 
V.  Hillestad,  87  Minn.  304.  But  where  he 
is  to  receive  one-half  the  "income"  the  title 
to  the  crops  is  in  the  tenant — Rowlands  v. 
Voechting, '  115  Wis.  352.  Outgoing  tenant 
held  entitled  to  crop — Whorley  v.  Karper,  20 
Ba.  Super.  Ct.  347.  Title  held  to  be  in  land- 
lord until  division — Kelly  v.  Rummerfield 
(Wis.)  94  N.  W.  649.  Crops  held  to  belong- 
to  tenant  as  against  purchaser  of  premises 
— Simanek  v.  Nemetz  (Wis.)  97  N.  W.  508; 
Horman  v.  Cargill  (Mo.  App.)  73  S.  W.  1101. 
Testimony  of  custom  is  admissible  to  aid  In 
construction  of  cropper's  contract — Gehl  v. 
Milwaukee  Broduce  Co.  (Wis.)  93  N.  W.  26. 
But  not  to  vary  Its  terms — Thompson  v. 
Bxum,  131  N.  C.   111. 

43.  As    against    a    receiver    appointed    on 


1002 


EMINENT   DOMAIN. 


Liens  on  crops  depend  for  their  validity  and  enforcement  on  the  statutes  under 
which  they  arise.*" 

In  some  states  growing  crops  are  exempt  from  taxation.*® 

The  aid  of  a  receiver  is  sometimes  invoked  against  injury  by  one  out  of  posses- 
sion but  entitled  to  remove  crops.*'' 


EMINENT  DOMAIN. 


}  1.     Power   of   the    State   and    Delegations 

of  It. — Who  may  Exercise  Power. 

§  2.  Purposes  and  Uses  of  a  Public  Char- 
acter. 

§  3.     Property    Liable    to    Appropriation 

Exempt  Property;  Property  Already  In  Pub- 
lic Use;  Right  to  Choose  Location;  Estate 
which  may  be  Exercised. 

§  4.  What  U  a  "Taking"  or  "Injuring." — 
Streets;  Street  Grades;  Railroads  and  Other 
Structures  in  Streets;  Use  of  Rural  High- 
ways for  Other  Than  Travel;  Viaducts  and 
Bridges. 

§  5.  Right  of  Appropriation  as  Dependent 
on  CompeD«:atlon,  etc.,  or  OflEer  to  Purchase. — 
Necessity  and  Payment  or  Deposit  of  Com- 
pensation; Consent  or  Offer  to  Purchase;  Re- 
lease of  Damages. 

§  e.  Measure  and  Sufficiency  of  Compen- 
sation.— General  Rule;  Benefits;  Particular 
Elements;  Accrual;  Rights  Taken  in  Public 
Ways;   Estate  Taken;   Sufficiency. 

§  7.     Who  Is  Liinble  for  Compensation. 

S  8.  Condemnation  Proceedings  .in  Gen- 
eral.— Conditions;  Discontinuance;  Parties; 
Bond. 

§  9.     Jurisdiction. 

S  10.     Applications;  Petitions;  Pleadings. 

§  H.  Process;  Notice;  Citation;  Publica- 
tion. 

§  12.  Hearing  and  Determination  of  Right 
to   Condemn. 


§  13.  Commissioners  or  Other  Tribunal  to 
Assess  Damages;  Trial  by  Jury. 

§  14.  The  Trial,  Inquest  and  Hearing  on 
Question  of  Damages. — Admissibility  of  Evi- 
dence;  Sufficiency   of  Evidence;   Instructions. 

§  15.     VicTv  of  Premises. 

§  16.  Verdict,  Report  or  Afvard;  Judgnment 
Thereon  and  Enforcement. — Sufficiency;  Va- 
lidity; Conclusiveness  and  Effect. 

§  17.      Costs  and  Expenses. 

§  18.  Revie\T  of  Condemnation  Proceed- 
ings.— Right  to  Review;  Remedy  for  Review; 
Saving  Questions  for  Review;  Bringing  Up 
Cause;  Record;  Scope  of  Review;  Hearing; 
Decision  and  Determination. 

§  19.     Remedy  of  Owner  by  Action  or  Suit. 

A.  Actions  for  Tort  or  Damages;  Recov- 

ery of  Property;  Right  of  Action; 
Pleading,  Issues  and  Proof;  Bur- 
den of  Proof;  Questions  of  Fact; 
Witnesses;  View;  Instructions;  Ver- 
dict and  Judgment;   Appeal. 

B.  Suits    in    Equity;    Injunction;    Limita- 

tion and  Laches;  Parties;  Pleading 
and  Issues;   Decree  or  Order. 

§  20.  Payment  and  Distribution  of  Avrard. 
— Title  or  Right  to  Payment;  Sufficiency; 
Distribution;   Lien. 

§  21.     Ovmershlp   or   Interest   Acquired. 

§  22.  Transfer  of  Possession  and  Passing 
of  Title. 

§  23.  Relinquishment  or  Abandonment  of 
Rights   Acquired. 


The  general  principles  applying  to  appropriation  of  private  property  are 
treated  here  while  the  appropriation  for  many  particular  public  purposes  will 
be  more  fully  treated  under  special  subjects.^ 

§  1.  The  power  of  the  state  and  delegations  of  it. — The  power  of  eminent  do- 
main is  an  inalienable  right  of  sovereignt}'.^  The  territory  of  Arizona  may  pro- 
vide for  its  exercise.'     Generally,  constitutional  provisions  merely  recognize  the 


appeal  from  confirmation  of  foreclosure  sale 
— Cassell  v.  Ashley  (Neb.)    92  N.  W.  1035. 

44.  Sieffert  v.  Campbell,  24  Ky.  L.  R. 
1050,  70  S.  W.  630. 

45.  A  minor  who  cultivates  crops  for  his 
father's  creditor  with  the  father's  team  may, 
If  entitled  to  his  own  services,  have  a  lien 
therefor  but  not  for  the  services  of  the  team 
— Tuckey  v.  Lovell  (Idaho)  71  Pac.  122.  An 
affidavit  for  a  lien  by  a  farm  laborer  under 
the  Texas  statute  need  not  state  the  par- 
ticular crops  raised — Allen  v.  Glover,  27  Tex. 
Civ.  App.  483.  The  obligation  assumed  by 
a  tenant  selling  his  crop  on  the  faith  of  the 
landlord's  waiver  of  his  lien  to  make  good 
title  to  the  buyer  is  a  sufficient  considera- 
tion for  the  waiver — Fishbaugh  v.  Spu- 
naugle,  118  Iowa,  337.  A  debt  for  supplies 
needed  to  raise  crops  Is  privileged  in  Louis- 
iana and  purchasers  are  presumed  to  know 
of  Its  existence — Weill  v.   Kent,   107  La.   322. 

46.  Alfalfa,  being  perennial  though  not 
Indigenous,    is    not    exempt    as    a    "growing 


crop" — Miller   v.   Kern   County,   137   Gal.   516, 
70   Pac.   549. 

47.  Threatened  injury  by  an  outgoing 
tenant  required  to  harvest  crop^  to  certain 
crops  of  the  new  tenant  is  not  sufficient  to 
authorize  the  appointment  of  a  receiver  to 
harvest  the  crops — Horn  v.  Bohn,  96  Md.  8. 
Threatened  injury  to  oil  lands  by  one  claim- 
ing conflicting  title  not  sufficient  for  ap- 
pointment of  receiver  to  operate  the  same — 
Freer  v.  Davis.  52  W.  Va.   35. 

1.  The  reason  for  separate  treatment  is 
the  difference  in  statutory  proceedings  to 
appropriate  for  such  particular  purposes — 
See  Bridges;  Canals;  Highways  &  Streets: 
Public  Works  &  Improvements;  Sewers  & 
Drains;  Waters  &  Water  Supply. 

2.  Hollister  v.   State    (Idaho)    71   Pac.   541. 

3.  Under  the  Organic  act  granting  the 
legislative  power  of  the  territory,  and  the 
exercise  of  all  subjects  of  legislation  not  In- 
consistent with  the  federal  constitution  and 
laws — Sandford  v.  Tucson  (Ariz.)  71  Pac.  903. 


§  1 


WHO  MAY  EXERCISE. 


1003 


power  to  exist,*  leaving  to  the  legislature  the  right  to  determine  the  circumstances 
necessary  to,  and  the  manner  and  extent  of,  its  exercise,*^  or  to  delegate  such  power 
of  determination  to  municipal  bodies.^  The  extent  of  its  exercise  is  limited  by 
express  words  or  clearly  implied  conditions  of  the  statutes.'^  A  law  authorizing 
condemnation  of  land  for  "private"  roads  is  not  special  legislation,^  The  delega- 
tion of  the  power  may  be  revoked  or  modified  by  the  legislature  at  any  time." 
The  grant  to  a  corporation  of  the  right  to  exercise  eminent  domain  makes  it  sub- 
ject to  government  regulation  in  public  use  of  property  or  products.^"  The  ques- 
tion of  the  necessity,  propriety,  or  expediency  of  exercising  the  power,  is  legis- 
lative, not  judicial,  in  the  absence  of  contrary  statutory  or  constitutional  provi- 
sions.** 

The  power  to  take  property  is  not  necessarily  exhausted  by  its  first  exercise.*^ 

Who  may  exercise  the  pojvcr. — Municipalities  and  public,*'  or  semi-public,** 

or  domestic  private  corporations,*'  or  foreign  private  corporations,*®  may  exercise 


4.  Samish  River  Boom  Co.  v.  Uninn  Boom 
Co.  (Wash.)   73  Pac.  670. 

5.  Samish  River  Boom  Co.  v.  Union  Boom 
Co.  (Wash.)  73  Pac.  670.  Grant  to  foreign 
corporations — Southern  Illinois  &  M.  Bridge 
Co.  V.  Stone,  174  Mo.  1.  A  taking  of  adjacent 
property  to  change  a  village  street  grade 
may  be  declared  to  be  for  a  public  use  to  the 
extent  of  injury  (Laws  1897,  p.  420,  c.  414,  § 
159) — Comesky  v.  Suffern.  81  N.  T.  Supp. 
1049. 

6.  Comp.  Lawrs.  cc.  4097,  6446,  as  to  power 
of  township  board  to  authorize  construction 
of  a  street  railway  construed — Freud  v.  De- 
troit &  P.  R.  Co.  (Mich.)  95  N.  W.  559.  Act 
April  4,  1S68,  §  12;  Pub.  Laws  62.  requiring 
municipal  consent  to  occupation  of  a  street 
by  a  railway  is  not  repealed  by  Const.  1874, 
art.  17,  §  1 — Pittsburg  v.  Pittsburg,  etc.,  R. 
Co.,  205  Pa.  13.  Pub.  Laws  1894,  p.  374,  re- 
quiring a  street  railroad  to  obtain  consent 
of  a  governing  body  of  a  municipality  and 
of  a  certain  proportion  of  abutting  owners 
to  construction  of  a  railway  upon  a  street 
or  highway,  was  superseded  by  Pub.  Laws 
1896,  p.  329 — Mercer  County  Traction  Co.  v. 
United  New  Jersey  R.  &  C.  Co.,  64  N.  J.  Eq. 
588. 

7.  Waterbury  v.  Piatt.  75  Conn.  387,  60  L. 
R.  A.  211:  Goddard  v.  Chicago  &  N.  W.  R.  Co., 
202  111.  362.  Condemnation  of  property  al- 
ready appropriated  to  public  use — Indianap- 
olis, etc.,  R.  Co.  V.  Indianapolis  &  M.  Rapid 
Transit  Co.   (Ind.  App.)   67  N.  E.   1013. 

8.  Pol.  Code,  §  2692 — Madera  County  v. 
Raymond  Granite  Co.,  139  Cal.  128,  72  Pac. 
915. 

9.  The  various  statutes  and  ordinances  of 
Boston  allowing  private  corporations  to 
build  underground  conduits  in  certain  streets 
to  carry  wires,  none  of  which  purport  to 
convey  private  rights  of  property,  merely 
provide  for  regulations  of  different  public 
rights  in  the  streets,  and  the  rights  of  such 
corporations  may  be  controlled  or  terminated 
by  the  legislature  at  any  time  without  re- 
gard to  express  provisions  therefor  in  such 
statutes  and  ordinances — New  England  Tel. 
V.  Boston  Terminal  Co.,  182   Mass.   397. 

10.  Fallsburg  Power  &  Mfg.  Co.  v.  Alex- 
ander (Va.)   43  S.  B.  194. 

11.  Zircle  v.  Southern  R.  Co.  (Va.)  45  S. 
E.  802. 

12.  Land  may  be  taken  by  a  railroad  for 
additional    tracks    and    enlargement    of    ter- 


minal facilities — Gardner  v.  Georgia  R.  &  B. 
Co.,  117  Ga.  522. 

13.  Cities  may  exercise  the  power  in  lay- 
ing out  and  opening  streets.  Under  Rev. 
Code  1899,  §  2454,  subd.  7  of  section  2148  to- 
gether with  Code  Civ.  Proc.  c.  35 — Lidger- 
wood  V.  Michalek  (N.  D.)  97  N.  W.  541.  The 
police  Jury  of  a  parish  may  condemn  a  site 
for  a  court  house  or  jail.  Under  Civ.  Code, 
art.  2630,  amended  by  Acts  1886,  No.  117,  and 
Acts  1896,  No.  96 — Fuselier  v.  Police  Jury. 
109  La.  551. 

14.  That  representation  of  a  city  on  the 
board  of  directors  of  a  free  library,  is  only 
one-half  the  members,  will  not  prevent  it 
from  taking  land,  part  of  which  is  to  be 
used  for  such  library — Laird  v.  Pittsburg, 
205  Pa.  1. 

15.  Sand.  &  H.  Dig.  §§  2757,  2758,  2770- 
2781,  giving  telephone  and  telegraph  com- 
panies power  to  take  a  right  of  way  along 
highways,  railroads  and  post  roads  under 
statutory  regulation,  is  constitutional — St. 
Louis,  etc.,  R.  Co.  v.  Southwestern  Tele- 
phone &  Telegraph  Co.  (C.  C.  A.)  121  Fed. 
276.  Under  a  law  Incorporating  telegraph 
companies  and  giving  them  right  to  acquire 
property  necessary  to  their  lines  and  build- 
ings, which  incorporates  laws  regarding  as- 
sessment of  damages  within  itself,  such 
companies  may  condemn  land  on  assessment 
and  payment  of  damages  under  the  act  so 
included — Postal  Tel.  &  Cable  Co.  v.  Chi- 
cago, etc.,  R.  Co.,  30  Ind.  App.  654.  Con- 
struction of  Acts  1886,  No.  117  and  Acts 
1896,  No.  96,  which  amended  and  re-enacted 
Rev.  St.  §  1479,  giving  railroad,  plank  or 
turnpike  road  corporations  the  right  to  ex- 
ercise the  power  of  eminent  domain,  con- 
strued together  with  Civ.  Code,  art.  2630,  as 
amending  and  re-enacting  it,  though  not  re- 
ferred to  In  the  amending  act — Fuselier  v. 
Police  Jury,  109  La.  551.  The  original  char- 
ter of  the  Georgia  Railroad  and  Banking 
Company  In  Georgia,  to  exercise  the  power 
of  eminent  domain,  as  subsequently  amend- 
ed by  Act  Dec.  26,  1836,  p.  197,  (Prince's  Dig. 
p.  358)  is  not  affected  by  Act  Dec.  18,  1894, 
p.  95,  (Civ.  Code  1895,  §  4657  et  seq.)  pre- 
scribing a  uniform  method  for  exercise  of 
the  power.  The  act  amending  the  original 
charter  authorized  it  to  condemn  private 
property  and  prescribed  a  method  for  such 
condemnation — Gardner  v.  Georgia  R.  &  B. 
Co..  117  Ga.  522.     T^^here  the  charter  of  a  cor- 


1UU4 


EMINENT  DOMAIN. 


§  2 


the  power  to  enable  them  to  serve  public  purposes.  A  corporation  of  Arkansas 
cannot  exercise  the  power  in  Indian  Territory  under  the  laws  of  that  state." 
That  a  boom  company  is  a  trespasser  on  property  it  seeks  to  condemn^^  or  that 
one  railroad  company  'has  leased  its  property  to  another  and  owns  no  rolling 
stock,  will  not  prevent  its  exercise  of  the  power.^'^  A  telegraph  company  main- 
taining lines  on  a  railroad  right  of  way  imder  a  rental  contract,  with  a  covenant 
to  remove  at  the  end  of  the  term,  obtained  no  rights  from  its  tenancy  which 
could  support  subsequent  condemnation  of  the  premises.^"  A  prior  purchase  of 
land,  and  re-entry  for  breach  of  condition  subsequent,  will  not  prevent  condemna- 
tion by  the  purchaser,  a  railroad  company.^^ 

§  2.     Purposes  and  uses  of  a  public  character. — Private  property  cannot  be 
t^ken  for  a  private  purpose,^^  except  as  so  permitted  by  the  constitution;-'  but 


poratlon  provided  that  corporations  for  cer- 
tain purposes  could  construct  railways  and 
condemn  rights  of  way  on  payment  of  com- 
pensation, and  the  charter  was  amended  by 
Act  1896.  §  18.  giving  the  right  to  cross  ex- 
isting railroads  or  public  roads,  and  limit- 
ing the  power  to  condemn  land  to  such  pur- 
poses, the  original  power  of  condemnation 
was  taken  away — Boyd  v.  "^''innsboro  Gran- 
ite Co.  (S.  C.)  45  S.  E.  10.  The  right  to  take 
land  for  a  dam  is  not  conferred  on  a  cor- 
poration organized  to  own  and  operate  gas, 
electric  and  water  works,  to  furnish  light, 
power  and  water  for  hire  under  Rev.  St. 
1899.  c.  131,  §  8756.  giving  such  right  only  to 
public  mills  as  defined  by  the  statute  to  be 
grist  mills  grinding  without  toll,  or  water 
grist  mills  built  on  water  courses  by  au- 
thority of  statute  or  order  of  court — South- 
west Missouri  Light  Co.  v.  Scheurich.  174 
Mo.  235.  Gen.  St.  1865.  c.  69.  §  17,  as  amend- 
ed by  Laws  1871-72,  p.  15,  giving  bridge  cor- 
porations power  to  exercise  eminent  domain 
amended  by  later  laws  allowing  them  to 
take  land  for  approaches,  road,  foot  or  wag- 
on ways  over  bridges  Is  construed  as  to  the 
word  "road"  in  the  amendment,  to  apply  to 
structures  designed  for  the  passage  of  rail- 
road trains  as  though  the  word  was  "rail- 
road" and  authorizes  a  railroad  bridge  com- 
pany to  condemn  land  for  approaches  and 
necessary  tracks — Southern  Illinois  &  M. 
Bridge  Co.  v.  Stone.  174  Mo.  1.  A  passenger 
railway  company  Incorporated  under  Act 
June  7.  1901,  P.  L.  523,  giving  the  right  of 
eminent  domain  for  the  construction  of  an 
elevated  railway  on  a  highway  for  one  mile, 
having  obtained  the  consent  of  the  local  au- 
thorities and  filed  a  bond  for  security  of  a 
non-consenting  land  owner,  may  build  such 
road  though  the  land  owner  has  secured  the 
restraint  of  other  street  railway  companies 
from  building  a  surface  street  railway  for 
such  districts — Philadelphia  &  T.  R.  Co.  v. 
Neshaminy   El,   R.   Co.    (Pa.)    55  Atl.  1034. 

IC.  A  railroad  corporation  organized  In 
another  state  complying  with  Acts  1SS9,  p. 
43,  c.  34.  giving  it  the  same  rights  as  domes- 
tic corporations  in  building  a  line  within 
the  state,  is  a  domestic  corporation  as  to  the 
right  of  exercising  eminent  domain — Rus- 
sell v,  St.  Louis  S.  W.  R.  Co.  (Ark.)  75  S.  W. 
725.  Rev.  St.  1899,  §§  1024,  1025,  giving  for- 
eign corporations  authority  to  transact  busi- 
ness in  the  state  on  complying  with  certain 
formalities  as  other  corporations,  empowers 
a  foreign  corporation  to  exercise  the  same 
power   of  eminent  domain   as  domestic   cor- 


porations, where  chartered  to  build  a  toll 
bridge  across  a  boundary  river  between  two 
states,  without  regard  to  whether  it  was 
empowered  to  exercise  such  right  in  the 
state  of  its  residence,  where  authorized  by 
federal  law  to  build  such  bridge — Southern 
Illinois  &  M.  Bridge  Co.  v.  Stone.  174  Mo. 
235.  A  corporation  established  under  laws  of 
another  state  to  build  telegraph  and  tele- 
phone lines  within  certain  counties  of  that 
state  cannot  extend  its  lines  beyond  those 
counties  under  act  No.  124.  1880,  providing 
for  the  condemnation  of  property  within  the 
state  since  that  applies  only  to  foreign  cor- 
porations authorized  in  the  states  where 
they  are  created  to  carry  on  their  business 
elsewhere — Southwestern  Tel.  Co.  v.  Kansas 
City,  S.  &  G.  R.  Co..  108  La.  691. 

17.  St.  Louis,  etc.,  R.  Co.  v.  Southwestern 
Telephone  &  Telegraph  Co.  (C.  C.  A.)  121 
Fed.    276. 

18.  Samish  River  Boom  Co.  v.  Union  Boom 
Co.   (Wash.)   73  Pac.  670. 

19.  State  V.  Superior  Ct..  31  Wash.  445,  72 
Pac.  89. 

20.  Western  Union  Tel.  Co.  v.  Pennsyl- 
vania R.  Co.,  120  Fed.  362. 

21.  Supplement  of  March  25,  1881  (on  fail- 
ure to  agree  as  to  repurchase) — State  v,  Bal- 
timore &  N.  Y.  R.  Co.  (N.  J.  Law)  53  Atl 
1040. 

22.  Gaylord  v.  Sanitary  Dist.  of  Chicago 
(111.)  68  N.  E.  522.  Lands  for  railroad  pur- 
poses cannot  be  Condemned  by  one  not  in 
charge  of  a  public  use,  or  intending  to  per- 
form a  public  service,  or  'U'ho  merely  wishe.<< 
to  transfer  rights  acquired  to  another — 
Beveridge  v.  Lewis,  137  Cal.  619.  67  Pac. 
1040,  70  Pac.  1083.  Pub.  Acts  1887.  p.  219. 
No.  202.  §  9,  subd.  «5,  (2  Comp.  Laws  1897,  S 
6814)  permitting  land  to  be  taken  for  con- 
struction of  a  navigable  water  way  with  ap- 
purtenant water  power,  which  can  be  used 
for  private  purposes  held  unconstitutional — 
Berrien  Springs  Water  Power  Co.  v.  Berrien 
Circuit  Judge  (ISIich.)  94  N.  W.  379.  Laws 
1901,  p.  502.  c.  354.  preventing  the  owner  of 
one  of  tw^o  or  more  artesian  wells  in  any 
vicinity,  one  or  more  of  which  are  operated, 
from  wasting  water  flowing  from  his  well 
so  as  to  diminish  the  flow  of  water  in  other 
wells  in  the  vicinity  and  rendering  liim  lia- 
ble to  damages  for  discharging  more  than  Is 
reasonably  necessary  for  his  use.  so  as  to 
materially  diminish  the  flow  of  other  wells, 
declared  unconstitutional  as  to  owners  whose 
wells    take    their    supply    from    percolating 


§•2 


PURPOSES  AND  USES. 


1005 


that  a  private  purpose  will  be  incidentally  served  will  not  prevent  taking  for  a 
lawful  purpose.^*  The  use  must  be  necessarily  of  a  public  nature,^''  and  must 
be  for  the  general  public,  not  merely  particular  individuals  thereof/®  and  stat- 
utes granting  the  power  will  be  construed  to  require  public  benefit.^'  Power  to 
take  property  for  a  temporary  use  is  not  necessarily  implied  from  power  to  take 
it  for  a  permanent  public  use/®  nor  does  statutory  authority  to  condemn  for  a 
particular  purpose  not  raise  a  presumption  that  such  purpose  is  public.^®  A  pur- 
pose partially  public  is  insufficient.^"  The  petitioner  must  be  bound  to  serve  a 
public  purpose,''^  and  the  public  must  be  entitled  to  use  without  his  favor  or  per- 
mission.^^ Mere  convenience  is  insufficient  to  show  public  necessity.^^  The  con- 
dition which  makes  a  use  public  must  exist  at  the  time  of  taking.'*  Property 
obtained  for  a  public  use  cannot  be  diverted  to  a  private  use.'* 


waters — Huber  v.  Merkel  (Wis.)  94  N.  W. 
354. 

23.  Const,  art.  1,  §  17,  construed  with  art. 
9,  §1  1,  2,  g-ives  certain  corporations  tiie  riglit 
to  condemn  for  branch  railroads,  etc. — Boyd 
V.  Winnsboro  Granite  Co.   (S.  C.)    45  S.  E.  10. 

24.  Berrien  Springs  Water  Power  Co.  v. 
Berrien  Circuit  Jud?re  (Mich.)  94  N.  W.  379. 
Buying  of  electric  light  plants  is  for  a  public 
purpose  though  it  is  proposed  to  furnish  pri- 
vate service  with  the  public  service  (Rev. 
St.  1899,  §  6275,  construed  in  connection  with 
Const,  art.  2,  §§  20,  21) — State  v.  Allen  (Mo.) 
77  S.  W.  868. 

25.  Act  May  14th,  1899,  Pub.  L.  216,  §  14, 
as  amended  by  Act  May  21,  1895,  Pub.  L.  93, 
giving  one  street  railway  the  right  to  use 
a  certain  portion  of  the  tracks  of  another 
street  railway  on  payment  of  damages,  can- 
not be  sustained  since  it  merely  aids  the 
first  company  to  obtain  property  of  the  other 
for  its  own  benefit — Philadelphia,  M.  &  S.  St. 
R.  Co.'s  Petition,  203  Pa.  354.  Though  a 
company  incorporated  under  a  special  char- 
ter (Acts  1899-1900,  p.  418)  may,  in  the  ex- 
ercise of  some  of  its  functions,  be  subject  to 
laws  regulating  internal  improvement  com- 
panies and  would  be  subject  to  public  regu- 
lation, where  it  devoted  its  products  to  pub- 
lic use,  and  had  power  under  its  charter  to 
devote  a  part  or  none  of  such  products  to 
public  use,  the  public  has  no  such  definite 
right  to  such  use  as  will  render  constitu- 
tional a  provision  giving  it  a  right  of  emi- 
nent domain — Fallsburg  P.  &  M.  Co.  v.  Alex- 
ander (Va.)  43  S.  E.  194.  Necessity  of  con- 
demnation of  certain  property  is  shown  by 
evidence  of  a  reasonable  necessity  under  cir- 
cumstances of  the  particular  case,  dependent 
on  the  practicability  of  another  location, 
considered  in  connection  with  the  real  cost 
to  one  and   the  probable  injury  to  the  other 

Samish    River    Boom    Co.    v.    Union    Boom 

Co.  (Wash.)  73  Pac.  670.  Code,  §  2028,  giv- 
ing an  owner  or  lessee  of  land  without  a 
private  or  public  way  thereto,  the  right  to 
acquire  a  public  way  to  a  railroad  station, 
the  street  or  highway  on,  or  immediately 
adjacent  to  a  railroad  line,  and  Code,  §  2031, 
giving  the  owner,  lessee  or  possessor  of 
mineral  lands,  on  payment  of  damages  as- 
sessed, the  right  to  build  a  railway,  to  reach 
and  operate  such  mine  and  carry  products 
to  market,  must  be  construed  together  so 
that  a  railway  under  the  latter  act  can  only 
be  established  on  a  public  way  established 
under    the    first    act    (Code,    §§    2028,    2031)  — 


Morrison  v.  Thistle  Coal  Co.  (Iowa)  94  N.  W. 
507. 

26.  Water  rights — Hlldreth  v.  Montecito 
Creek  Water  Co.,  139  Cal.   22,  72  Pac.   395. 

27.  Gen.  Laws  1901,  c.  258,  not  expressly 
providing  that  a  ditch  shall  not  be  author- 
ized, unless  found  of  public  benefit,  will  be 
construed  to  be  intended  for  such  benefit — 
State  V.  Board  of  County  Com'rs,  87  Minn. 
325. 

28.  Waterbury  v.  Piatt,  75  Conn.  387. 

29.  Under  Const,  art.  1,  §  16 — Healy  Lum- 
ber Co.  V.  Morris  (Wash.)   74  Pac.  681. 

30.  Gaylord  v.  Sanitary  Dist.  of  Chicago 
(III.)  68  N.  E.  522.  The  taking  of  property 
for  purposes,  some  of  which  are  private  in 
nature,  does  not  comply  with  the  constitu- 
tional provision  for  public  necessity — Ber- 
rien Sprin-  ^  Water  Power  Co.  v.  Berrien 
Circuit  Judge   (Mich.)   94  N.  W.  379. 

31.  The  intention  to  devote  the  property 
to  a  public  purpose  must  be  independent  of 
the  corporate  will  of  petitioner — Berrien 
Springs  Water  Power  Co.  v.  Berrien  Circuit 
Judge  (Mich.)  94  N.  W.  379.  Power  to  flow 
the  lands  of  another  by  the  erection  of  a 
dam  to  obtain  water,  where  such  flowing 
was  found  to  be  of  public  benefit,  will  not 
allow  building  of  a  dam  to  generate  elec- 
tricity for  the  operation  of  a  railroad  on  the 
ground  of  public  benefit,  under  V.  S.  c.  159, 
not  requiring  petitioner  to  serve  the  public 
generally — Avery  v.  "Vermont  Elec.  Co.  (Vt.) 
54  Atl.  179. 

32.  A  mere  public  benefit  is  not  a  public 
use — Gaylord  v.  Sanitary  Dist.  of  Chicago 
(111.)    68  N.  E.   522. 

33.  An  unsustained  claim  that  unless  a 
railroad  right  of  way  was  condemned  a 
street  railway  company  would  be  compelled 
to  diverge  from  its  right  of  way,  as  located, 
so  as  to  render  hazardous,  dangerous  and 
impracticable  the  operation  of  its  road,  does 
not  show  necessity  for  condemnation  of  the 
right  of  way  (Act  1901,  p.  461;  Burns'  Rev. 
St.  1901,  §  5468a,  subd.  5,  does  not  expressly 
or  impliedly  confer  authority  to  condemn)  — 
Indianapolis  &  V.  R.  Co.  v.  Indianapolis  & 
M.  Rapid  Transit  Co.  (Ind.  App.)  67  N.  E. 
1013. 

34.  The  power  cannot  be  invoked  on  the 
theory  that  forfeiture  will  result  if  the  pur- 
pose proves  not  to  be  public — Avery  v.  Ver- 
mont Elec.  Co.    (Vt.)    54   Atl.   179. 

35.  Where  a  city  attempted  to  condemn 
property  for  certain  public  purposes  but 
failed    to    complete    the    condemnation    pro- 


1006 


EMINENT  DOMAIN. 


8  3 


A  railway  to  a  mine,^'  private  roads  which  are  open  to  public  use,'''  a  levee 
along  the  bank  of  a  river,'*  purchase  or  erection  and  maintenance  by  cities  of 
public  and  private  electric  plants,'®  drainage  of  wet  lands,*"  a  system  of  free 
public  fisheries  in  fresh  water  lakes  of  every  county  of  a  state,*^  additional  rail- 
road tracks  and  enlargement  of  terminal  facilities,*^  a  branch  track  to  reach  a 
private  industrial  enterprise  to  be  used  in  furtherance  of  public  business,*'  land 
for  a  railroad  water  station,**  supplying  an  incorporated  city  or  town  and  its 
inhabitants  with  natural  gas  for  heating  and  illuminating;*^  all  these  are  public 
purposes  for  which  private  property  may  be  taken.  Condemnation  of  land  for 
park  purposes  by  a  city  is  valid  though  it  intends  to  use  part  of  the  land  for  a 
free  library  and  art  building  at  the  time  situated  on  another  part  of  the  public 
park.*®  Land  for  a  log  road,*^  or  for  a  tram-way,  cannot  be  taken  by  a  lumber 
company  only  to  carry  its  own  timber.*^  Public  necessity  cannot  be  said  as  a 
matter  of  law  to  require  improvements  in  a  stream.*®  Water  companies  cannot 
condemn  water  from  springs  on  their  lands  which  naturally  flows  over  adjoining 
lands.^"  Municipalities  cannot  embark  in  business  generally  of  a  private  nature 
except  under  stress  of  public  necessity.^^ 

§  3.  Property  liable  to  appropiation  and  estate  therein  which  may  he  aC' 
quired. — Statutes  must  be  strictly  construed  respecting  the  property  which  they 
allow  to  be  taken.^^     An  easement,^'  a  right  of  profit  a  prendre  in  lands,^*  the 


ceedlnga  and  the  parties  treated  the  pro- 
ceedings as  void  and  contracted  for  a  sale  of 
the  property  by  deed  containing  certain  re- 
strictions as  to  its  use,  a  lease  by  the  city 
under  chapter  34,  p.  255,  Sp.  L.  1891,  giving 
it  the  right  to  lease  land  obtained  by  it  for 
a  private  purpose,  of  the  property  to  an- 
other person  for  a  private  enterprise  is  an 
unconstitutional  diversion  of  the  property  to 
private  use  and  gives  the  lessee  no  rights 
against  the  owner — Sanborn  v.  Van  Duyne 
(Minn.)   96  N.  W.  41. 

36.  This  though  the  public  can  only  trav- 
el by  railway  cars,  since  another  mine  own- 
er can  use  it  without  paying  additional  dam- 
ages to  the  original  owner;  there  is  no  un- 
constitutional taking;  though  the  spur  track 
from  the  mine  connected  with  the  railroad 
more  than  a  mile  from  a  station  it  complied 
with  the  statute  providing  for  such  tracks 
since  the  mine  owner  had  a  public  way  over 
which  his  cars  could  be  hauled  to  the  sta- 
tion— Morrison  v.  Thistle  Coal  Co.  (Iowa)  94 
N.  W.  507. 

37.  Pol.  Code,  §  2692 — Madera  County  v. 
Raymond  Granite  Co.,  139  Cal.  128,  72  Pac. 
915. 

38.  Missouri,  K.  &  T.  R.  Co.  v.  Cambern 
(Kan.)  71  Pac.  809. 

39.  Rev.  St.  1899,  §  6275,  construed  in  con- 
nection with  Const,  art.  2,  §  20 — State  v.  Al- 
len  (Mo.)   77  S.  W.  868. 

40.  Llle  V.  Gibson,  91  Mo.  App.  480.  Const, 
art.  2.  §  20,  against  taking  private  property 
for  private  use  except  for  private  ways  and 
drains,  ditches,  for  agricultural  or  sanitary 
purposes,  does  not  apply  to  Rev.  St.  1899,  § 
8251,  etc.,  providing  for  establishment  of 
drainage  districts,  construction  of  ditches 
and  assessment  of  benefits — Mound  City  L.  & 
S.  Co.  v.  Miller,  170  Mo.  240. 

41.  Under  Act  of  March  22,  1901,  provid- 
ing for  regulation  of  such  fisheries  and  use 
by  all  citizens — Albright  v.  Sussex  County 
Lake  &  Park  Commission,  68  N.  J.  Law,  523. 


43.  Under  railroad  charter  powers — Gard- 
ner V.  Georgia  R.  &  B.  Co.,  117  Ga.  522. 

43.  Zircle  v.  Southern  R.  Co.  (Va.)  45  S. 
E.  802. 

44.  Under  Gen.  St.  1901,  §  1359— Dillon  v. 
Kansas  City.  Ft.  S.  &  M.  R.  Co.  (Kan.)  74 
Pac.   251. 

45.  By  corpjDration  organized  under  gen- 
eral laws  and  occupying  streets  and  alleys 
under  municipal  authority  (Code  1S99.  §  42) 
— Charleston  Natural  Gas  Co.  v.  Lowe,  52 
W.  Va.  662. 

46.  Laird  v.  Pittsburg,  205  Pa.  1. 

47.  Laws  1899,  p.  255,  c.  130,  construed  In 
connection  with  Const,  art.  1,  §  16 — Healy 
Lumber  Co.  v.  Morris  (V\''ash.)   74  Pac.   6S1. 

48.  Under  Pub.  Laws  1895,  c.  224,  §  297, 
and  Code  1883,  §  2056,  amended  by  Pub.  Laws 
1887,  c.  46,  §  1  (at  most  it  may  obtain  an 
easement  under  compliance  with  the  statute) 
— Leigh  v.  Garysburg  Mfg.  Co.,  132  N.  C.  167. 

49.  Even  though  construction  of  a  dam 
will  render  the  stream  navigable — Berrien 
Springs  Water  Power  Co.  v.  Berrien  Circuit 
Judge  (Mich.)  94  N.  W.  379. 

50.  Shannon's  Code,  §§  1844  et  seq.,  and  } 
2502 — Watauga  Water  Co.  v.  Scott  (Tenn.) 
76  S.  W.   888. 

51.  Cities  and  towns  cannot  be  authorized 
by  the  legislature  to  buy  and  sell  fuel  to 
citizens  in  competition  with  private  dealers, 
but  the  government  of  such  a  municipality 
may  make  itself  an  agent  on  occasions  of 
great  scarcity  of  fuel  for  relief  of  persons 
unable  to  supply  themselves  through  private 
enterprise,  and  money  so  spent  will  be  ex- 
pended for  public  use — In  re  Opinion  of  the 
Justices,   182  Mass.   605. 

52.  Act  Cong.  July  24,  1866;  R.  S.  §§  5263. 
52R4,  authorizing  any  telegraph  company  to 
build  lines  over  any  part  of  the  public  do- 
main including  military  or  post  roads,  gives 
an  Interstate  franchise,  but  does  not  em- 
power companies  to  exercise  the  power  of 
eminent   domain   to   take  private   property — 


^  3 


WHAT  MAY  BE  TAKEN. 


1007 


right  to  fish  in  fresh  water  lakes  of  a  state,"  and  private  interests  in  tide  lands 
held  under  a  contract  from  the  state/"  may  be  taken.  Consent  by  an  abutting 
owner  to  construction  of  a  street  railway  is  not  such  a  property  right  as  can  be 
appropriated.^^ 

Lands  once  acquired  and  lost  may  be  reacquired  by  condemnation.'^* 
Property  exempt  by  law  because  used  for  a  certain  purpose  must  be  capable 
of  such  use,°*  and  must  be  so  used  at  time  of  condemnation.*" 

Property  in  actual  and  necessary  use  for  a  public  purpose  cannot  be  taken 
for  another  purpose  no  more  necessary/^  but  it  may  be  taken  if  the  new  use  will 
not  materially  interfere  with  the  old  use.®^     Statutory  authority  is  not  necessary 


Western  Union  Tel.  Co.  v.  Pennsylvania  R. 
Co.,  120  Fed.  362.  Sufficiency  of  compliance 
with  statutory  requirements  that  a  spur 
railway  line  should  be  located  on,  or  imme- 
diately adjacent  to  a  division  line,  where 
such  spur  line  was  constructed  from  a  mine 
to  a  railroad  across  the  land  of  another — 
Morrison  v.  Thistle  Coal  Co.  (Iowa)  94  N.  W. 
607.  Where  a  water  district  is  empovv'ered 
by  Private  Laws  1899,  c.  200,  to  take  the  en- 
tire property  of  a  water  company  within 
certain  territory,  it  must  take  all  the  prop- 
erty held  by  such  company  within  such  ter- 
ritory, if  it  takes  anything,  wliether  spe- 
cifically named  in  the  statute  or  not,  in- 
cluding real  estate  or  other  property  not 
connected  with  the  water  system,  the  plant 
or  physical  system  and  all  franchises  or 
privileges  exercised  or  capable  of  being  ex- 
ercised. Under  Private  Laws  1899,  c.  200 — 
Kennebec  Water  Dist.  v.  Waterville,  97  Me. 
185.  A  company  operating  a  railway  on 
leased  lands  built  under  provisions  of  the 
Traction  act  of  1893  (§§  13,  14.  Gen.  St.  p. 
3239),  procured  appointment  of  commission- 
ers to  condemn  land  adjoining  its  line  so  that 
the  two  tracks  would  not  exceed  60  feet  in 
width,  is  within  the  Act — Middlesex  &  S.  T. 
Co.  v.  Metlar  (N.  J.  Law)  56  Atl.  142.  Where 
a  railroad  company  taking  a  right  of  way 
covenanted  to  make  a  suitable  and  con- 
venient crossing  where  the  owner  should 
direct,  and  he  selected  a  place  where  the 
railroad  was  nearly  at  a  grade  and  the 
crossing  was  constructed  and  used  for  sev- 
eral years,  and  subsequently  the  railroad 
company  raised  the  grade  so  as  to  destroy 
the  crossing,  at  which  time  the  owner  noti- 
fied the  company  of  his  rights  and  demanded 
that  the  crossing  be  left  open,  he  could  not 
be  compelled  to  accept  compensation  in  tlie 
place  of  the  crossing,  where  the  charter  of 
the  original  railroad  company,  (Laws  1867, 
p.  306,  c.  160,  §  9)  and  general  statutes  (Gen. 
St.  p.  2661,  §  84)  under  which  the  present 
company  was  formed,  preserved  the  old  road 
to  the  owner  and  required  suitable  crossings 
for  farm  purposes,  and  gave  no  right  to  take 
rights  expressly  given  or  reserved  to  the 
owner — Speer  v.  Erie  R.  Co.,  64  N.  J.  Eq. 
601. 

53.  Deavitt  v.  Washington  County  (Vt.) 
53  Atl.  563. 

54.  Un,jler  Const,  p.  16,  art.  1,  authorizing 
the  taking  of  any  Interest  in  private  prop- 
erty less  than  the  whole — Albright  v.  Sus- 
sex County  Lake  &  Park  Commission,  68  N. 
J.  Law,  523. 

55.  Though  private  property  and  prima 
facie  belonging  to  owners  of  soil  covered  by 
tlie  water — Albright  v.  Sussex  County  Lake 
&  Park  Commission.   68   N.  J.  Law,   523. 


56.  By  railroad  company  under  Ball.  Ann. 
Codes  &  St.  §§  4333,  4334,  the  land  was  held 
by  individuals  subject  only  to  forfeiture  for 
failure  to  pay  balance  of  purchase  price — 
State  V.  Superior  Ct.,  31  Wash.  445.  72  Pac. 
89. 

57.  It  is  a  personal  right  under  Rev.  St.  §§ 
3439,  3440 — Hamilton,  G.  &  C.  Traction  Co.  v. 
Parrish,  67  Ohio  St.  181. 

58.  Bouvier  v.  Baltimore,  etc.,  R.  Co.  iN. 
J.  Law)  53  Atl.  1040. 

59.  W^here  property  dedicated  as  a  street 
had  never  been  improved  and  could  not  be 
used  as  such  without  being  improved,  it  is 
not  exempt  from  condemnation  by  a  railroad 
company  because  of  Laws  1879,  p.  147,  giving 
street  railway  companies  the  power  of  emi- 
nent domain  exempting  public  roads  and 
streets — State  v.  Superior  Ct.,  30  Wash.  219, 
232,  70  Pac.  484. 

60.  Under  Act  1854.  55,  c.  225,  giving  a 
railroad  company  the  right  to  condemn  a 
right  of  way  but  exempting  gardens  from 
such  use,  property  which  is  not  used  as  a 
garden  at  the  time  of  condemnation  is  not 
exempt  because  used  as  a  garden  when  the 
company  afterward  takes  actual  possession 
— Dargan  v.  Carolina  Cent.  R.  Co.,  131  N.  C. 
623. 

61.  Land  used  for  public  park  cannot  be 
taken  for  a  postofflce;  under  Mass.  Laws, 
governing  an  eminent  domain  proceeding  by 
the  United  States — In  re  Certain  Land  In 
Lawrence,  119  Fed.  453.  A  creek  improved 
by  a  city  for  drainage  cannot  be  taken  by  a 
drainage  district — Bishop  v.  People,  200  111. 
33.  One  street  car  company  granted  right  to 
build  tracks  in  street  already  occupied  by 
another  company  under  former  grant,  can- 
not interfere  with  vested  rights  or  fran- 
chises of  the  latter  company  by  straddling 
its  tracks — Parrish  v.  Hamilton,  G.  &  C. 
Traction  Co.,  23  Ohio  Circ.  R.  527.  One  rail- 
road company  cannot  condemn  for  right  of 
way  purposes,  an  entire  tract  of  land  be- 
longing to  another,  part  of  which  is  in  actual 
and  necessary  use  for  railway  purposes — 
Atchison,  etc.,  R.  Co.  v.  Kansas  City,  etc.,  R. 
Co.  (Kan.)  73  Pac.  899.  Acts  1901,  p.  461; 
Burns'  Rev.  St.  1901.  §  5468a,  subd.  5,  giving 
an  interurban  street  railway  authority  to 
build  its  road  on  a  railroad  which  the  route 
of  its  road  shall  Intersect,  does  not  author- 
ize its  appropriation  longitudinally  of  the 
railroad  right  of  way  in  whole  or  in  part — 
Indianapolis,  etc.,  R.  Co.  v.  Indianapolis  & 
M.  Rapid  Transit  Co.  (Ind.  App.)  67  N.  E. 
1013. 

62.  Const,  art.  12,  5  10,  construed  In  con- 
nection with  Ball.  Ann.  Codes  &  St.  §  5638 — 
Samish  River  Boom  Co.  v.  Union  Boom  Co. 
(Wash.)  73  Pac.  670.     Under  Civ.  Code,  §  2626. 


iao8 


EMINENT  DOMAIN. 


§  3 


to  taking  land  already  in  public  use  for  a  new  use  if  public  interests  demand  it/^ 
but  if  the  right  is  given  by  statute  it  must  be  strictly  construed,®*  and  if  express 
powers  given  a  petitioner  sulSce  to  accomplish  the  object  sought  no  implied  power 
to  condemn  property  already  appropriated  can  exist.^^  The.  future  needs  of  the 
present  purpose  and  the  public  duty  of  the  present  occupant  must  be  considered 
in  allowing  property  already  in  public  use  to  be  taken,*^®  but  a  mere  h^'pothetical 
convenience  of  the  occupant  will  not  prevent  appropriation,®''^  A  proceeding  to  ob- 
tain the  right  to  connect  a  flume  with  a  city  canal  to  discharge  water  into  it  is 
not  a  condemnation  of  city  land  so  that  the  use  by  the  power  company  must  be 
shown  to  be  a  more  necessary  public  use  than  the  use  of  city  since  the  city  owns 
but  an  easement  over  the  land.®* 

State  lands  given  by  statute  to  each  township  to  be  sold  for  school  purposes 
may  be  taken.®® 

Statutory  authority  to  petitioner  to  choose  his  own  location  must  be  exercised 
in  good  faith.''®  Eailroad  companies  exercising  the  power  of  eminent  domain  may 
determine,  within  statutory  limits,  the  location  and  amount  of  land  to  be  taken, 


one  railroad  may  condemn  a  crossing  over 
another  where  necessary  to  public  needs  of 
the  business — Houston  &  S.  R.  Co.  v.  Kansas 
City,  etc..  R.  Co.,  109  La.  581.  Real  estate  of 
one  railroad  company  not  in  actual  and  nec- 
essary use  for  its  road  may  be  taken  by  an- 
other company — Atchison,  etc.,  R.  Co.  v. 
Kansas  City,  etc.,  R.  Co.  (Kan.)  70  Pac.  939. 
Act  May  14,  1889,  Pub.  Laws  211,  §  14  amend- 
ed by  Act  June  7,  1901,  Pub.  Laws  514.  au- 
thorizing- one  street  railroad  to  use  the  track 
of  another  for  a  certain  prescribed  distance 
Is  unconstitutional — Commonwealth  v.  Uwch- 
lan  St.  R.  Co.,  203  Pa.  608.  Under  Rev.  St. 
1878,  §§  39S4.  5263,  a  telegraph  company 
may  locate  lines  along  a  railroad  right  of 
way — Postal  Tel.  &  Cable  Co.  v.  Chicago, 
etc.,  R.  Co..  30  Ind.  App.  654.  Under  Rev. 
St.  arts.  698.  699.  a  telegraph  and  telephone 
company  may  take  a  right  of  way  over 
railroad  property  though  it  might  obtain  a 
right  of  way  over  other  lands — Fort  Worth, 
etc.,  R.  Co.  V.  Southwestern  Tel.  Co.  (Tex.) 
71  S.  W.  270.  Telephone  companies  can  only 
occupy  railroad  rights  of  way  and  cannot 
interfere  with  tracks;  under  act  1880,  p.  168. 
No.  124 — Southwestern  Tel.  Co.  v.  Kansas 
City,  etc.,  R.  Co.,  109  La.  892.  23  St.  at 
Large,  p.  61,  §§  2,  3,  allowing  telephone  lines 
to  be  built  over  railroad  or  other  land,  au- 
thorizes telephone  companies  to  condemn  a 
right  of  way  for  its  purposes,  where  acquired 
by  the  railroad  company  by  condemnation 
and  in  fee — South  Carolina  &  G.  R.  Co.  v. 
American  Tel.  Co.,  65  S.  C.  459.  An  amend- 
ment to  the  charter  of  a  railroad  company 
which  gave  it  no  power  to  condemn  a  right 
of  way  across  the  track  of  another  com- 
pany, adopting  provisions  of  the  general 
railroad  law  as  far  as  applicable,  included 
in  Civ.  Code,  §  2167,  giving  it  right  to  ac- 
quire such  right  of  way  by  condemnation 
though  under  the  original  charter  it  could 
only  be  acquired  by  private  contract — At- 
lantic &  B.  R.  Co.  V.  Seaboard  Air  Line  R., 
116  Ga.  412.  Act  March  19,  1900  (Pub.  Laws 
1900,  p.  74)  [which  amended  the  telegraph 
company  act  April  9,  1875,  §  8:  Gen..  St.  p. 
34571  construed  as  not  depriving  such  com- 
panies of  the  right  to  condemn  a  use  In 
public  roads  for  such  purposes,  where  the 
owners  refused  to  consent,  such  power  being 


given  by  Act  March  11,  1880  (Pub.  Laws  1880. 
p.  201).  The  act  first  mentioned  does  not 
confer  or  withdraw  power  of  eminent  do- 
main, but  merely  regulates  its  exercise  as  to 
telegraph  rights  of  way — Coles  v.  Midland 
Tel.  Co.,  68  N.  J.  Law,   413. 

63.  Taking  of  land  by  one  railroad  to 
cross  another — Houston  &  S.  R.  Co.  v.  Kan- 
sas City,  etc.,  R.  Co.,  109  La.  581. 

64.  Act  Cong.  July  24,  1866,  c.  230.  14  Sts. 
221,  authorizing  construction  of  telegraph 
lines  over  post  roads  including  public  roads 
and  highways,  does  not  confer  the  right  to 
use  streets  and  alleys  of  a  municipality  ex- 
cept on  conditions  prescribed — Postal  Tel. 
Cable  Co.  v.  Newport,  25  Ky.  L.  R.  635,  76  S. 
W.  159.  Act  Pa.  March  24,  1849.  chartering 
a  telegraph  company  and  authorizing  it  to 
build  lines  between  certain  cities  and  inter- 
mediate places,  and  to  erect  structures  nec- 
essary to  cross  public  ways  and  waters  of 
the  state  so  as  not  to  interfere  with  their 
use,  is  a  grant  of  a  right  of  way  along  and 
over  roads  of  the  state,  but  does  not  confer 
expressly  or  by  implication,  the  right  to 
take,  in  exercise  of  the  power  of  eminent 
domain,  a  right  of  way  along  a  railroad 
track — Western  Union  Tel.  Co.  v.  Pennsyl- 
vania R.    Co.,   120   Fed.   362. 

65.  Condemnation  of  railroad  right  of 
way  by  telegraph  company — Western  Union 
Tel.  Co.  V.  Pennsylvania  R.  Co.,  120  Fed.  362. 

66.  Taking  railroad  right  of  way  for  tele- 
graph purposes — Western  Union  Tel.  Co.  v. 
Pennsylvania  R.  Co.,  120  Fed.  362. 

67.  Taking  right  of  way  for  telephone 
lines — Southwestern  Tel.  Co.  v.  Kansas  City, 
etc.,  R.  Co.,  109  La.  892. 

68.  Rev.  St.  §§  3588,  3590,  construed  in 
connection  with  §  3591 — Salt  Lake  City  Wa- 
ter &  Elec.  Power  Co.  v.  Salt  Lake  City,  25 
Utah,  441,  71  Pac.  1067. 

69.  Act  Cong.  July  3.  1890,  known  as 
"Idaho  Admission  Act" — Hollister  v.  State 
(Idaho)   71  Pac.   541. 

70.  In  appropriation  of  shore  lines  or  wa- 
ters by  boom  companies,  a  later  extension  of 
business  beyond  the  first  location  does  not 
show  bad  faith  (Ball.  Ann.  Codes  &  St.  8 
4379) — Samish  River  Boom  Co.  v.  Union 
Boom  Co.  (Wash.)  73  Pac.  670. 


§   4 


WHAT  IS  A  TAKING. 


1009 


and  their  discretion  will  not  be  controlled  by  the  courts,  unless  clearly  abused," 
but  after  choice  is  made  and  the  road  established,  the  right  of  location  under  that 
proceeding  is  exhausted.'^* 

Use  or  estate  which  may  he  exercised. — A  use  or  interest  in  land  may  be  taken 
temporarily."  A  police  jury  failing  to  agree  with  landowners  as  to  making  a 
public  road  in  a  county  may  establish  it  by  imposing  mere  servitude  of  passage  over 
the  landsJ* 

§  4.  What  is  a  "talcing"  or  "injuring"  of  property. — The  duration  of  in- 
jury is  immaterial;  if  it  actually  occurs  there  is  a  taking.^'  To  be  injured,  prop- 
erty need  not  abut  on  a  public  improvement;  it  need  only  be  near  enough  to  be 
proximately  and  substantially  injured.^*  A  mere  regulation  of  an  occupation,^^ 
right,^^  or  of  the  use  of  property,^®  is  not  an  appropriation  requiring  compensa- 
tion; but  oppressive  taxation  or  wrongful  diversion  of  public  funds  may  be.*" 
Circumstances  showing  a  taking  or  injury,^^  and  damages  which  do  not  fall  within 
those  terms,*^^  are  illustrated  in  the  cases  cited  below  and  under  succeeding  para- 


71.  Zircle  v.  Southern  R.  Co.  (Va.)  45  S. 
E.  802.  A  railroad  company  under  its  char- 
ter powers  may  determine  the  amount  of 
land  necessary  to  enlarge  its  terminal  fa- 
cilities or  build  additional  tracks — Gardner 
V.  Georgia  R.  &  B.  Co.,  117  Ga.  522.  Where 
a  railroad  charter  gave  authority  to  build  a 
line  between  two  places  without  exact  de- 
scription thereof,  it  may  be  located  at  the 
company's  discretion — Tennessee  Cent.  R.  Co. 
V.  Campbell  (Tenn.)  73  S.  W.  112. 

72.  Where  the  map  of  a  proposed  railroad 
filed  by  the  company,  does  not  describe  defi- 
nitely its  location,  nor  is  it  so  described  in 
an  instrument  by  an  abutting  owner  convey- 
ing,- the  right  of  way,  the  railroad  company 
cannot  change  the  track  as  established  when 
the  grant  is  made  without  the  owner's  con- 
sent or  condemnation  proceedings  by  mak- 
ing additional  tracks,  switches,  or  sidings — 
Stephens  v.  New  York,  O.  &  W.  R.  Co.,  175 
N.   y.   72. 

73.  For  use  while  constructing  water 
works  under  Act  April  1,  1895  (Pub.  Laws 
1895.  p.  769) — Hepburn  v.  Jersey  City,  67  N. 
J.  Law,   6S6. 

74.  Under  Rev.  St.  §  3369 — Fuselier  v.  Po- 
lice Jury  of  Parish  of  Iberia,  109  La.  551. 

75.  Injury  to  abutting  property  only  dur- 
ing construction  of  a  railroad  in  a  street — 
Bailey  v.  Boston  &  P.  R.  Corp.,  182  Mass 
537. 

76.  Const.  1874,  art.  6,  §  8 — Cooper  v. 
Scranton  City,  21  Pa.  Super.  Ct.  17. 

77.  An  act  requiring  a  license  of  transient 
merchants,  and  imposing  a  penalty  for  vio- 
lation (Act  March  11,  1901;  Burns'  Rev.  St. 
1901,  §§  7231a,  7231b  construed  in  connection 
with  Const,  art.  1,  §  21) — Levy  v.  State  (Ind.) 
68  N.  E.  172. 

78.  Regulation  of  a  city  water  supply 
though  injury  results  to  established  busi- 
ness (St.  1895,  c.  488) — Sawyer  v.  Common- 
wealth, 182  Mass.   245. 

79.  Ordinance  against  allowing  growth 
of  weeds  on  private  premises — St.  Louis  v. 
Gait  (Mo.)  77  S.  W.  876.  A  requirement, 
that  railroad  companies  should  keep  rights 
of  way  clear  of  dry  vegetation  and  under 
growth  to  prevent  fires,  and  providing  for 
certain  penalties  on  failure  (Rev.  St.  1898,  § 
2614) — McFarland  v.  Mississippi  River  &  B. 
T.  B.  Co.  (Mo.)  75  S.  W.  162. 

Curr.  Law — 64. 


80.  Assessment  of  property  for  public  im- 
provements beyond  total  value  of  the  prop- 
erty after  assessment — Louisville  v.  Bitzer, 
24  Ky.  L.  R.  2263,  73  S.  W.  1115.  Law  ap- 
portioning money  from  city  licenses  between 
state,  county  and  city,  held  unconstitutional 
(St.  1903,  p.  190,  c.  102,  §  20,  subd.  9,  con- 
strued in  connection  with  Bill  of  Rights,  § 
8) — State  V.  Boyd   (Nev.)  74  Pac.  654. 

81.  A  general  telegraph  line  on  a  railroad 
right  of  way  erected  under  a  transfer  of 
telegraph  lines  of  the  railroad  company  and 
enlarged  for  commercial  purposes.  The  con- 
veyance was  an  attempt  to  confer  the  right 
to  maintain  a  general  commercial  line — 
Hodges  V.  Western  Union  Tel.  Co.  (N.  C.)  45 
S.  E.  572.  Obstruction  of  surface  water  by 
construction  of  railroad,  making  a  pond  on 
abutting  farm  property — Arkansas  Cent.  R. 
Co.  V.  Smith  (Ark.)  71  S.  W.  947.  Destruc- 
tion of  a  private  road  and  the  owner's  ac- 
cess— Culver  V.  Yonkers,  80  App.  Div.  (N.  Y.) 
309.  Destruction  of  a  rice  plantation  by 
federal  improvement  in  navigation  (5th' 
Amend  to  Cons.  U.  S.) — United  States  v. 
Lynah,  188  U.  S.  445;  Same  v.  Williams,  188 
U.  S.  485.  Pollution  of  a  river  by  drainage 
of  city  sewage  damaging,  riparian  owners 
above  tide  waters  (The  city  had  condemned 
no  such  right) — Doremus  v.  Paterson  (N.  J. 
Err.  &  App.)  55  Atl.  304.  Damage  to  land  by 
drainage  of  sewage  into  a  creek  in  natural 
course  of  flowage,  even  though  the  sewers 
were  properly  constructed  (Const.  1876,  art. 
1,  §  17) — New  Odorless  Sewerage  Co.  v.  Wis- 
dom (Tex.  Civ.  App.)  70  S.  W.  354.  Appro- 
priation of,  or  damage  to,  water  rights  of 
lessees  from  a  company  holding  water  power 
for  manufacturing  purposes  under  statutory 
authority,  (Pollution  by  city  sewage  of 
streams  from  which  lessees  Tvere  entitled  to 
draw  water) — Doremus  v.  Paterson  (N.  J. 
Err.  &  App.)  55  Atl.  304.  Taking  of  public 
lands  occupied  by  a  claimant  as  "liome- 
stead"  (He  has  legal  vested  rights  under 
his  claim) — Oklahoma  City  v.  McMaster 
(Okl.)  73  Pac.  1012.  Taking  of  a  dam  for 
water  supply  to  the  impairment  of  granted 
rights  of  an  owner  servient  to  the  flowage 
by  the  dam  (L.  1893,  p.  317,  c  ^89) — In  re 
Brookfield   (N.  Y.)   68  N.  E.  138. 

82.     Injuries    to    riparian    lands    by    piers, 
abutments   or   bridges   erected    by   municipal 


1010 


EMINENT  DOMAIN. 


§   4 


graphs.  The,  opening  of  a  highway  across  a  railroad  is  a  taking  requiring  com- 
pensation for  land  actually  taken  in  absence  of  a  sho^ving  of  benefits.^^ 

Destruction  of  a  calling,  business,  or  profession,  is  a  taking  of  property  as 
much  as  a  taking  of  real  estate.**  A  right  of  way  of  necessity  based  on  estoppel 
but  not  amounting  to  an  easement  is  not  an  interest  in  land  entitling  one  to 
compensation,  where  taken  for  a  public  street.*^  Vested  rights  of  riparian  own- 
ers cannot  be  abolished  by  legislative  action  as  to  irrigation  except  by  condemna- 
tion.*' That  an  interest  in  lands  is'  less  than  the  whole  will  not  prevent  the 
right  to  compensation  for  land  taken  or  damaged  in  constructing  a  street  if  the 
right  is  substantial  and  is  affected.*^  Condemnation  of  a  turnpike  is  no  injury  to 
abutting  property.®* 

Establishment  or  vacation  of  streets. — Injury  to  abutting  lands  by  opening  a 
street,'^^  or  extending  a  street  under  railroad  tracks,®''  or  closing  a  street,®^  or  of 
an  alloy,  destroying  access  to  adjacent  property,®^  or  temporary  closing  of  a  street 
destro3dng  access  during  the  period,*^  generally  gives  a  right  to  damages ;  but  this 
will  not  apply  to  statutory  vacation  as  affecting  rights  of  corporations  to  carry  wires 
in  underground  conduits.®* 

Establishment  or  change  of  street  grade. — Generally,  no  recovery  can  be  had 
for  grading  under  a  previously  established  plan  which  injures  improvements  erect- 
ed on  the  abutting  property  after  establishment  of  the  grade,®^  unless  improvement 


authorities  In  the  exercise  of  public  rights, 
so  that  the  bank  Is  washed  by  the  auarment- 
ed  current — Salllotte  v.  King  Bridge  Co.  (C. 
C.  A.)  122  Fed.  378.  Loss  of  business  result- 
ing from  taking  adjoining  property  for  rail- 
road purposes;  a  statute  is  necessary  to  cre- 
ate liability  for  such  injury — Bailey  v.  Bos- 
ton &  P.  R.  Corp.,  182  Mass.  537.  Establish- 
ment of  a  highway  across  railroad  tracks 
(Notice  of  the  proceedings  is  unnecessary  to 
foreclose  rights  of  grantee  of  the  railroad 
property) — Baltihiore  &  O.  S.  W.  R.  Co.  v. 
State,  159  Ind.  510.  Lowering  of  the  grade 
of  a  highway  belonging  to  a  plank  road  com- 
pany to  accommodate  a  street  railway,  the 
township  and  the  plank  road  company  con- 
senting— Austin  V.  Detroit,  Y.  &  A.  A.  R. 
(Mich.)  96  N.  W.  35.  Elevation  of  tracks  on 
a  railroad  right  of  way  to  the  damage  of 
adjacent  property  (Chicago  v.  Webb,  102  111. 
App.  232)  or  obstruction  of  light,  air  and 
view — Osburn  v.  Chicago.  105  111.  App.  217. 
Inspection  of  mining  claims  in  an  action  to 
determine  adverse  claims  thereto  (Code  Civ. 
Proc.  5  1314,  construed  in  connection  with 
Const,  art.  3.  §  14)— State  V.  District  Ct. 
(Mont.)    73   Pac.   230. 

83.  Lake  Erie  &  W.  R.  Co.  v.  Shelley  (Ind. 
App.)   67  N.  E.  564. 

84.  State  v.  Chapman  (N.  J.  Law)  55  Atl. 
94.  "Widow  keeping  house  and  boarding  her 
children  and  occasional  visiting  relatives 
during  their  vacation  for  pay  does  not  have 
an  established  boarding  house  business — 
Gavin  v.   Commonwealth.  182  Mass.  190. 

85.  In  re  City  of  New  York,  83  App.  Div. 
(N.  Y.)  430. 

86.  Crawford  Co.  v  Hathaway  (Neb.)  93 
N.    W.    781. 

87.  Olson  V.  Seattle,  30  Wash.  687,  71  Pac. 
201. 

88.  Under  Act  May  14.  1889,  §  17,  P.  L.  217 
— Hinnershitz  v.  United  Traction  Co.  (Pa.) 
55  Atl.  841. 

89.  Grant  v.  Hyde  Park.    67   Ohio   St.   166. 


90.  Requiring  construction  of  a  bridge  or 
viaduct  to  carry  trains  over  the  street — 
Cincinnati,  H.  &  D.  R.  Co.  v.  Troy  (Ohio)  67 
N.    E.    1051. 

91.  The  closing  rendered  the  street  a  eul 
de  sac  directly  in  front  of  property — Village 
of  Winnetka  v.  Clifford,  201  111.  475.  The 
property  must  be  so  situated  that  the  owner 
is  entitled  to  notice  of  vacation  proceedings: 
if  it  did  not  extend  to  an  open  part  of  the 
street,  that  a  continuation  in  front  of  his 
property  has  been  dedicated  but  never  open- 
ed will  not  avail  him — Beutel  v.  West  Bay 
City  Sugar  Co.    (Mich.)    94  N.   W.   202. 

93.  The  owner  suffers  a  burden  different 
from  that  of  the  general  public — Chicago  v. 
Webb,  102  111.  App.   232. 

93.  Loss  of  rents  of  tenements  abutting 
on  private  way  leading  to  closed  street  (Sts. 
1891,  p.  880.  c.  323,  construed  in  connection 
with  Pub.  St.  1882,  c.  49.  §  16) — Munn  v.  Bos- 
ton   (Mass.)    67   N.   E.    312. 

94.  The  right  of  the  corporation  is  a  part 
of  the  public  easement  destroyed  by  the  va- 
cation (Act  1896,  c.  516,  §  23) — New  England 
Tel.  Co.  V.  Boston  Terminal  Co.,  182  Mass. 
397. 

95.  Ross  V.  Cincinnati,  24  Ohio  Giro.  R.  43. 
The  owner  had  notice  of  the  grade  when  he 
built — In  re  City  of  New  York,  78  App.  Div. 
(N.  Y.)  355.  A  railroad  company  which  had 
acquired  the  right  to  maintain  its  road  along 
a  certain  street  through  a  sub-way  as 
against  abutting  owners,  before  passage  of  a 
law  compelling  a  change  of  grade  and  erec- 
tion of  a  steel  viaduct  to  give  the  public 
use  of  the  street,  was  not  liable  to  abutting 
owners  for  damages  from  interference  with 
easements  of  light,  air  and  access.  The  state 
had  the  power  to  change  the  grade  and 
compel  the  viaduct  to  be  built  for  public 
benefit  without  compensation  to  abutting 
owners — Muhlker  v.  New  York  &  H.  R.  Co., 
173  N.  Y.  549. 

If  no  legal  grade  has  been  established  for 


^  4 


WHAT  IS  A  TAKING. 


iOll 


to  conform  to  the  established  grade  destroys  the  natural  drainage  and  furnishes 
no  means  adequate  for  drainage/'  or  unless  the  map  showing  the  plan  of  grade 
is  so  vague  as  to  mislead  the  abutting  owner.®^  Change  of  an  established  grad? 
resulting  in  consequential  injury  requires  compensation^^  though  the  whole  street 
lias  not  been  worked  up  to  the  established  sidewalk  grade  ;°^  but  one  who  removed 
Ids  building  after  title  to  land  was  acquired  by  the  city  but  before  the  street  was 
opened  cannot  recover.* 

Kotice  sufficient  to  prevent  abutting  landowners  from  recovering  for  injuries 
from  change  in  the  grade  of  a  street  must  be  clear  and  conclusive.^ 

The  legislature  may  declare  a  change  of  a  street  grade  by  a  village  to  be  a 
taking  of  adjacent  property  for  public  use  to  the  extent  of  its  injury.*  A  con- 
stitutional amendment  giving  damages  to  abutting  property  from  change  of  a  street 
grade  applies  to  improvements  of  abutting  owners  made  before  as  well  as  after  its 
passage.* 

railroads  or  other  ways  or  structures  on  city  streets. — Electric  railways  are  not 
an  additional  servitude  on  city  streets  when  they  can.be  said  to  fiill  within  the  public 
use  for  which  the  street  was  taken,^  unless  the  construction  changes  the  established 
grade  of  the  street,"  or  special  injury  be  done  to  abutting  property.'^  Provisions 
made  by  statute  for  reservation  of  space  for  the  construction  of  railways  to  which 
they  are  confined,  show  such  a  contemplated  use.*  The  same  rules  apply  to  wires 
and  poles,*^  transmission  of  electric  heat,  light,  and  power  on  poles  or  wires  in  use 
for  a  different  purpose,*"  are  added  burdens  to  the  street.  As  to  property  not  too 
remote,  construction  of  a  railroad  in  a  street,**  or  of  an  elevated  railway,  though 
the  fee  of  the  street  is  in  the  city,*^  amounts  to  a  taking  or  injuring  of  abutting 
property ;  but  this  will  not  apply  to  railroad  structures  in  a  street  resulting  in  mere 


a  street  a  city  In  Iowa  Is  liable  for  damag-es 
to  abutting-  property  from  g-rading  (Wilbur 
V.  Ft.  Dodge  [Iowa]  95  N.  W.  1S6)  but  in 
Ohio  there  can  be  no  recovery  when  a  grade 
Is  established  unless  it  is  unreasonable  (Ross 
V.  Cincinnati,  24  Ohio  Circ.  R.  43)  and  in 
Montana,  damages  are  allowed  for  injuries 
resulting  from  the  first  established  grade 
(Const,  art.  3,  §  14) — Less  v.  Butte  (Mont.)  72 
Pa-.   14  0. 

9G.  Wilbur  V.  Ft.  Dodge  (Iowa)  95  N.  W. 
186. 

97.  In  re  City  of  New  York,  84  App.  DIv. 
(N.  Y.)   312. 

S8.  Const,  art.  1,  §  13,  amended  In  1896 — 
Dickerman  v.  Duluth,  88  Minn.  288.  Direct 
and  physical  injury  to  abutting  property  can- 
not be  denominated  damnum  absque  injuria 
because  done  under  police  power — Chicago  v. 
McShane,  102  111.  App.  239.  Accumulation  of 
surface  water  on  abutting  property  as  a  di- 
rect and  unavoidable  result  of  the  change — 
Cooper  V.  Scranton  City.  21  Pa.  Super.  Ct.  17. 

99.  Laws  1897.  p.  420,  c.  414.  §  159 — In  re 
Comesky,  83  App.  Div.   (N.  Y.)   137. 

1.  In  re  City  of  New  York,  80  App.  Div. 
(N.  Y.)    622. 

2.  In  re  City  of  New  York,  84  App.  Div. 
fN.  Y.)    525. 

3.  Laws  1897.  p.  420,  c.  414.  §  159 — In  re 
Comesky.  83  App.  Div.  (N.  Y.)   137. 

4.  Const,  art.  1.  §  13,  amended  In  1896 — 
Dickerman  v.  Duluth,  88  Minn.  288. 

5.  Baker  v.  Selma  St.  &  S.  R.  Co..  135  Ala. 
552.  Though  the  owner's  fee  extends  to  the 
center  of  the  street — Lange  v.  La  Crosse  & 
B.   R.  Co.    (Wis.)    95  N.  W.   952. 

8.     Obstruction  of  access  to  abutting  prop- 


erty— Farrar   v.    Midland    Elec.    R.    Co.    (Mo. 
App.)  74  S.  W.  500. 

7.  Such  as  injury  to  easement  of  light  and 
air  by  building  a  trestle  and  bridge  in  front 
of  property  (State  v.  Superior  Ct.,  30  Wash. 
219,  232,  70  Pac.  484)  or  interference  with 
access — Parrish  v.  Hamilton,  G.  &  C.  Trac- 
tion Co.,  23  Ohio  Circ.  R.  627. 

8.  St.  1895.  p.  109,  c.  131  (location  under 
direction  of  selectmen) — Eustis  v.  Milton  St. 
R.  Co.   (Mass.)    67   N.  E.   663. 

9.  Recovery  may  be  had  for  unavoidable 
injury  to  trees  on  abutting  property  by  erec- 
tion of  wires,  or  where  the  poles  and  wires 
permanently  or  exclusively  occupy  parts  ol 
a  public  street  or  highway  (Bronson  v.  Al- 
bion Tel.  Co.  [Neb.]  93  N.  W.  201,  60  L.  R. 
A.  426)  but  construction  of  a  telephone  sys- 
tem in  city  streets  which  are  subject  to  such 
a  use  gives  no  right  to  damages;  except  as 
to  unnecessary  damage  to  abutters,  for 
there  is  no  additional  servitude — Kirby  v. 
Citizens'  Tel.  Co.    (S.  D.)   97  N.  W.  3. 

10.  Street  railway — Goddard  v.  Chicago  & 
N.  W.  R.  Co.,  202  111.  362. 

11.  Construction  and  operation  within  lesr- 
than  thirty  feet  of  a  factory  impairing  ac- 
cess, and  diverting  the  street  from  its  dedi- 
cated purpose,  requires  compensation  (Const, 
art.  1,  §  16) — Cleveland  Burial  Case  Co.  v. 
Erie  R.  Co.,  24  Ohio  Circ.  R.  107.  That  a 
railroad  was  built  on  the  opposite  side  of  a 
street  will  not  prevent  recovery  by  an  abut- 
ting owner,  but  the  owner  of  a  residence  lot 
300  feet  from  the  street  cannot  claim  dam- 
ages (Comp.  Laws,  §  6254) — Marquette  &  S. 
E.   R.  Co.  V.  Longyear   (Mich.)    94  N.   W.   670. 

13.     The    question    of   additional    servitude 


I'il2 


EMINENT  DOMAIN. 


§   5 


inconveiiience  of  access,^'  or  to  temporar}-  railroad  tracks  in  a  city  street  during  ele- 
vation of  tracks/*  or  to  change  of  a  grade  crossing,^"  or  additional  tracks  laid  in  a 
street  under  municipal  authority/^  or  change  of  grade,  width,  or  use  of  a  street 
for  railroad  tracks.^^ 

Use  of  rural  highways  for  purposes  other  than  general  public  travel. — Street 
railways  on  highways  are  regarded  as  an  additional  servitude  in  Pennsylvania,^*  but 
not  in  Michigan,^®  Maryland,^"  or  Kentucky,^^  A  telegraph,-^  or  a  telephone  line,-'' 
or  a  natural  gas  conduit,-*  or  the  change  of  a  horse  railway  to  an  electric  one,-®  adds 
to  the  burden  of  a  country  highway,  except  where  the  fee  is  in  the  public.^® 

Erection  of  public  viaducts  or  bridges  under  statutory  authority  in  a  street,  the 
fee  of  which  is  in  the  city,  is  not  a  taking  of  abutting  property,^"  unless  access  be 
destroyed.^*  A  bridge  abutment  or  approach  on  a  rural  highway  is  a  "taking"  if 
it  impairs  access  to  abutting  lands.-* 

§  5.  Right  of  appropriation  as  dependent  on  compensation,  payment,  deposit, 
or  offer  to  purchase.  Compensation  is  necessary. — Private  property  cannot  be  taken 
for  a  public  purpose  without  payment  of  just  compensation, '°  though  the  taking  be 


then  becomes  Immaterial  (Const.  1S70,  art.  2. 
§  13) — Aldis  V.  Union  El.  R.  Co.,   203  111.   567. 

13.  Where  a  depot  is  built  across  a  street 
so  as  to  require  persons  going-  from  a  dwell- 
ing a  point  beyond  it  to  go  around  by  other 
streets,  there  is  no  taking  or  injury  to  the 
dwelling — Dennis  v.  Mobile  &  M.  R.  Co. 
(Ala.)   35  So.  30. 

14.  Elevated  grade  crossings  required  by 
statute;  the  temporary  character  of  the 
tracks  can  only  be  considered  in  estimating 
the  amount  of  damages — McKeon  v.  New 
York,  N.  H.  &  H.  R.  Co..  75  Conn.  343. 

15.  The  tracks  were  used  so  as  to  damage 
abutting  property — Knapp  &  C.  Mfg.  Co.  v. 
New  York,  N.  H.  &  H.  R.  Co.  (Conn.)  56  Atl. 
512.  Mere  inconvenience  in  access  to  a  street 
because  of  construction  of  a  railroad  is  in- 
sufficient to  amount  to  special  injury — Put- 
nam V.  Boston  &  P.  R.  Corp.,   182  Mass.  351. 

!«.  They  constitute  an  additional  servi- 
tude though  the  grantor  of  the  abutting 
owner  granted  the  right  to  lay  the  original 
track — Rock  Island  &  P.  R.  Co.  v.  Johnson, 
204  111.  488. 

17.  Under  Const.  §  242 — Louisville  &  N.  R. 
Co.  v.  Cumnock  (Ky.)  77  S.  W.  933.  Causing 
total  destruction  to  access.  See,  also,  as  to 
special  injuries  to  adjacent  property  (Pub. 
St.  c.  112,  §  95) — Putnam  v.  Boston  &  P.  R. 
Corp.,  182  Mass.  351.  Though  under  statutory 
authority  and  though  no  more  injury  results 
than  would  result  from  filling  the  street  with 
building  material  which  is  allowable  by  stat- 
ute— Knapp  &  C.  Mfg.  Co.  v.  New  York.  N. 
H.  &  H.  R.  Co.  (Conn.)  56  Atl.  512.  Station 
houses  of  a  railroad  occupying  more  of  the 
street  than  the  viaduct  on  which  the  rail- 
road is  located  thereby  cutting  off  easements 
of  light  and  air.  Viaduct  erected  under 
Laws  1S02.  p.  694.  c.  337 — Dolan  v.  New  York 
&  H.  R.  Co..  175  N.  Y.  367. 

18.  In  townships  of  the  first  class;  they 
constitute  an  additional  burden  to  the  fee — 
Dempster  v.  United  Traction   Co..   205  Pa.   70. 

m.  Austin  V.  Detroit,  Y.  &  A.  A.  R.  (Mich.) 
96   N.  W.   35. 

20.  County  highway — Lonaconlng  Midland 
&  F.  R.  Co.  V.  Consolidation  Coal  Co..  95  Md. 
630. 

21.  Oerirsetown  Sk  I>.  Trnotion  Po.  v.  Mul- 
holland.   25   Ky.  L.   R.   578.   76  S.   W.   1  IS.      Re- 


moval of  obstructing  fences  to  build  electric 
railway  held  not  an  injury  wliere  they  were 
built  under  license  until  removal  was  re- 
quired by  public  necessity — Id. 

22.  The  landowner  held  the  fee — Union 
Elec.  Tel.  Co.  v.  Applequist,  104  111.  App.  517. 

23.  Gray  v.  New  York  State  Tel.  Co.,  41 
Misc.  (N.  Y.)  108. 

24.  Fee  was  in  abutter — Ward  v.  Triple 
State  Natural  Gas  &  Oil  Co.,  25  Ky.  L.  R.  116. 
74  S.  W.   709. 

2.'.  Consent  to  the  horse  road  will  not 
bind  an  abutting  owner  as  to  the  electric 
way — 'Humphreys  v.  Ft.  Smith  Traction,  etc., 
Co.  (Ark.)  71  S.  W.  662. 

26.  Kennedy  v.  Mlneola;  H.  &  F.  Traction 
Co.,  77  App.  Dlv.  (N.  Y.)  484,  12  Ann.  Cas. 
189. 

27.  The  street  easement  Is  for  public  pur- 
poses— Sauer  v.  New  York.  40  Misc.  (N.  Y.) 
585. 

25.  Approach  to  viaduct — Chicago  v.  Le 
Moyne  (C.  C.  A.)   119  Fed.  662. 

29.  Interference  with  access  need  not  be 
total — Lafean  v.  York  County,  20  Pa.  Super. 
Ct.   573. 

30.  Taking  lands  by  United  States  to  im- 
prove navigation  (5th  Amendment) — United 
States  V.  Lynah,  188  U.  S.  445;  Same  v.  Wil- 
liams, 188  U.  S.  485.  Land  taken  by  county 
for  road — Hitch  v.  Edgecombe  County 
Com'rs.  132  N.  C.  573  (Const.  §  21,  art.  1)  — 
Hogsett  V.  Harlan  County  (Neb.)  97  N.  W. 
316.  Taking  of  property  of  water  works 
company  by  city  (Laws  1875,  p.  157,  c.  181 
amended  by  Laws  1881,  p.  220,  c.  175.  Laws 
1883,  p.  286,  c.  255;  Laws  1885,  p.  370.  c.  211 
construed  in  connection  with  Laws  1875,  p. 
162,  c.  181) — In  re  Board  of  Water  Com'rs 
(N.  Y.)  68  N.  E.  348.  Acts  1901.  p.  90,  c.  63. 
violates  Const,  art.  1,  §  21,  in  not  providing 
for  compensation  for  taking  water  supply — 
Watauga  Water  Co.  v.  Scott  (Tenn.)  76  S. 
W.  888.  Rev.  St.  1874,  p.  701,  c.  92.  authoriz- 
ing taking  property  for  public  mills  or  ma- 
chinery other  than  public  grist  mills,  is  un- 
constitutional— Gaylord  v.  Sanitary  Dist.  of 
Chicago  (111.)  68  N.  E.  522.  Under  Const,  art. 
3.  §  14.  compensation  must  be  made  for  dam- 
ages from  street  grading  though  under  the 
first  grade  fixed — Less  v.  Butte  (Mont.)  72 
Pac.   140.   The   rule  applies   to   private  corpo- 


^  5 


NECESSITY  OF  PAYMENTS. 


1013 


under  the  police  power  of  the  state/^  or  by  taxation/^  or  by  assessment  for  public 
improvements,^^  or  by  one  railroad  company  for  crossing  the  road  of  another;^* 
but  public  streets  or  highways  may  be  extended  across  a  railroad  without  compen- 
sation.-''^ "Just  compensation"  in  the  constitutional  sense  means  full  compensa- 
tion, so  that  the  taking  of  property  for  public  use  for  less  than  full  compensation 
invades  constitutional  rights  without  regard  to  the  extent.^® 

Necessity  of  payment  of  compensation  or  deposit  in  court  before  taMng  prop- 
erty.— Railroad  companies  are  generally  required  to  pay  the  compensation  awarded 
to  the  landowner,  or  into  court  for  him,  before  taking  possession,^^  or  divesting  the 
iwner  of  title. ^*  The  rule  has  also  been  applied  to  street  railways  working  injury 
to  abutting  owners,^^  to  taking  of  lands  by  a  city  for  streets,*"  or  by  a  county  for 
roads,*^  but  it  is  unnecessary  in  Kansas  as  to  land  taken  for  a  schoolhouse  site.*^ 

Necessity  of  securing  consent  or  offer  to  purchase. — A  railroad  company  must 
acquire  its  right  of  way  by  purchase  if  practicable,  and  resort  to  condemnation  only 
when  it  cannot  purchase.*^  To  take  lands  for  agricultural,  domestic,  or  sanitary 
drains,  an  offer  to  purchase  is  not  necessary  before  beginning  proceedings.**  New 
York  City  may  proceed  to  take  all  rights  of  joint  owners  of  the  structure,  user, 
and  wharfage  of  a  pier,  in  which  the  city  is  also  joint  owner,  without  an  attempt 
to  purchase  from  such  owners.*^  Consent  of  a  mortgagee  to  use  of  land  for  tele- 
graph purposes  need  not  be  sought  before  condemnation  if  the  owner  refuses  con- 
sent.*" 


rations  taking  property,  they  being  limited 
in  the  delegation  of  power  as  otlier  persons 
(Const,  art.  1,  §  14,  construed  in  connection 
with  the  14th  amendment) — Steinhart  v.  Su- 
perior Ct.,  137  Cal.  575.  70  Pac.  629. 

31.  Injury  to  abutting  property  by  tem- 
porary use  of  street  by  railroad  during  ele- 
vation of  tracks — McKeon  v.  New  York,  etc., 
R.  Co.,  75  Conn.  343,  53  Atl.  656;  Knapp  &  C. 
Mfg.  Co.  V.  New  York,  etc.,  R.  Co.  (Conn.) 
56  Atl.  512. 

33.  The  eastern  half  of  the  Union  Pacific 
railroad  company's  bridge  over  the  Missouri 
river,  used  exclusively  for  railroad  purposes 
<'annot  be  taxed  for  municipal  purposes  by 
the  city  of  Council  Bluffs,  though  within 
corporate  limits,  the  east  end  of  the  bridge 
being  over  a  mile  from  municipal  improve- 
ments of  any  sort,  and  not  furnished  fire  or 
police  protection,  and  the  land  between  the 
bridge  and  the  settled  part  of  the  city  used 
for  agriculture — Arnd  v.  Union  Pac.  R.  Co. 
(C.  C.  A.)    120  Fed.  912. 

33.  If  the  total  value  of  assessed  property 
after  improvement  is  less  than  the  cost  of 
improvement,  the  assessment  lien  cannot  be 
enforced — T.ouisville  v.  Bitzer,  24  Ky.  L.  R. 
2263,   73  S.  W.  1115. 

34.  Civ.  Code.  §  2167 — Atlantic  &  B.  R.  Co. 
v.   Seaboard   Air-Line  R.,   116   Ga.   412. 

33.  The  company  has  acquired  subject  to 
the  public  necessity — Baltimore,  etc.,  R.  Co. 
V.  State,  159  Ind.   510. 

36.  Spring  Valley  "Water  Works  v.  City  & 
County  of  San  Francisco,  124  Fed.  574. 

37.  Code  Civ.  Proc.  1254,  authorizing  an 
order  allowing  a  railroad  company  to  take 
possession  of  lands  during  condemnation 
proceedings  for  a  right  of  way.  violates 
Const,  art.  1.  §  14,  that  no  right  of  way  shall 
be  appropriated  for  private  corporation  until 
full  compensation  is  made  and  paid  into 
court  for  the  owner — Steinhart  v.  Superior 
Ct..  137  Cal.  575,  70  Pac.  629. 


38.  Under  Code,  §  1079,  providing  for  pay- 
ment to  person  entitled  or  into  court  where- 
on title  absolutely  vests  in  petitioner  in  fee 
— Southern  R.  Co.  v.  Gregg  (Va.)   43  S.  E.  570. 

39.  State  V.  Superior  Ct.,  30  Wash.  219, 
232.    70   Pac.   4S4. 

40.  Where  damages  are  awarded  In  a  tak- 
ing of  property  for  streets  by  a  city,  and  on 
appeal  to  the  circuit  court  a  larger  award  is 
obtained,  the  land  cannot  be  appropriated 
by  the  city  until  the  difference  in  tlie  awards 
is  paid  or  tendered  to  the  property  owner 
though  the  original  award  has  been  paid 
into  court — Heinl  v.  Terra  Haute  (Ind.)  66  N. 
E.  450. 

41.  Opening  section  line  road — Chicago,  B. 
&  Q.  R.  Co.  V.  Douglas  County  (Neb.)  95  N. 
W.  339. 

42.  Under  Gen.  St.  1901.  §  6131,  providing 
means  for  determining  value  of  property 
taken  for  such  public  purpose,  and  Const, 
art.  12,  §  4.  giving  right  to  full  compensation 
and  under  Bill  of  Rights  giving  remedy  by 
due  course  of  law  for  all  such  injury  to 
property — Buckwalter  v.  School  Dist.  No.  2, 
65   Kan.   603.   70  Pac.   605. 

Note.  The  better  rule  would  seem  to  be 
that  in  case  of  a  purely  public  appropriation 
it  suffices  to  provide  for  compensation,  but 
the  states  are  in  conflict.  See  6  Am.  &  Eng. 
Enc.   Law    |lst  Ed.]    586. 

43.  Bouvier  v.  Baltimore,  etc..  R.  Co.  (N. 
J.  Law)  53  Atl.  1040.  Under  Comp.  Laws,  §§ 
6242.  6243,  6251 — Marquette,  etc..  R.  Co.  v. 
Longyear    (Mich.)    94  N.  W.   670. 

44.  Under  Act  March  19,  1895  (Laws  1895, 
p.  142,  c.  79) — Lewis  County  v.  Scobey,  31 
Wash.  357.  71  Pac.  1029. 

45.  Greater  N.  Y.  Charter,  §§  822.  824 
(Laws  1901,  p.  354,  c.  466) — In  re  City  of 
New  York.   41   Misc.    (N.  Y.)    134. 

46.  Coles  V.  Midland  Tel.  Co.,  68  N.  J. 
Law.  413. 


1014 


EMINENT  DOMAIN. 


Release  or  waiver  of  damages. — A  lando^vTier  may  waive  his  right  to  compen- 
sation by  dedication/^  written  consent/^  or  by  acts  adopting  or  acquiescing  in  the 
conditions  producing  injury  to  his  property,*^  but  not  by  mere  failure  to  appear 
in  the  proceedings  to  take  the  property.^"  Dedication  of  land  taken  will  not  waive 
damages  to  land  not  taken.^^  A  general  dedication  as  to  property  will  not  bind 
a  subsequent  grantee  of  part  thereof,  or  those  claiming  under  him,  where  he  bought 
previously,  and  was  recognized  as  the  owner  in  the  proceedings,^^  nor  will  consent  to 
building  of  an  elevated  railway  bind  a  bona  fide  purchaser  without  actual  or  record 
notice  where  there  was  already  one  road  in  the  street.^^  Consent  of  the  lessor  will 
not  bind  the  lessee  as  to  his  interest.^*  Consent  to  construction  of  a  horse  railway 
in  a  highway  will  not  permit  an  electric  railway."*  Consent  by  an  abutting  owner 
to  an  elevated  railway  over  the  driveway  of  a  street  cannot  be  extended  to  the 
sidewalk."*  A  grant  by  an  abutting  owner  of  the  right  to  lay  a  railroad  track  in 
a  street  under  municipal  authority  will  not  bind  his  successor  in  title  as  to  addi- 
tional tracks."^  A  waiver  of  damages  on  laying  out  a  road  is  binding,  though  the 
road  is  not  actually  opened  until  after  the  territory  is  included  in  an  incorporated 
town.""  A  city  may  agree  with  an  owner  as  to  waiver  of  damages  for  a  way  across 
hit  land  and  assumption  of  betterments  by  the  city,  though  it  may  be  required  to 
go  on  the  land  and  to  obtain  the  right  to  go  on  the  land  of  others  to  care  for  surface 
waters  and  other  private  owners  may  be  benefited  thereby."®  A  purchaser  from  an 
abutting  owner  after  passage  of  an  ordinance  authorizing  grading  of  a  street  may 
recover  for  injuries  to  his  property.^" 

§  6.  Measure  and  sufficiency  of  compensation.'^ — The  general  rule  as  to  the 
measure  of  damages  is  that  the  owner  shall  be  awarded  the  fair  cash  market  value 
of  property  taken,  and,  as  to  property  injured  but  not  taken,  the  difference  between 
such  value  just  before  and  just  after  the  appropriation.®^     The  uses  to  which  the 


4T.  Const,  art.  6.  §  13,  art.  17,  §  18,  allow- 
ing  the  fee  in  streets  to  remain  in  the  own- 
er on  his  dedication,  does  not  prevent  such 
dedication  operating  as  a  release  of  damages 
for  street  uses,  e.  g.  by  a  telephone  com- 
pany— Kirby  v.  Citizens'  Tel.  Co.  (S.  D.)  97 
N.  W.  3.  Dedication  of  a  street  prevents  re- 
covery of  damages  to  lateral  support  by  a 
cut  in  grade — Ross  v.  Cincinnati,  24  Ohio 
Circ.  R.  43.  An  owner  who  granted  land  in 
fee  to  a  county  for  a  highway,  cannot  com- 
plain of  a  grant  by  the  county  for  construc- 
tion of  a  natural  gas  conduit  under  the  road 
— Ward  V.  Triple  State  N.  G.  &  O.  Co.,  25  Ky. 
L.  R.  116,  74  S.  W.  709. 

48.  Of  abutting  owner  to  construction  of 
an  elevated  railway — Shaw  v.  New  Tork  El. 
R.  Co.,   78  App.  Div.   (N.  Y.)   290. 

49.  An  abutting  property  owner  agreeing 
with  a  contractor  employed  in  grading  a 
street  for  the  city,  for  a  raising  of  the  grade 
of  his  lot  and  house  to  correspond  with  the 
street  grade,  thereby  assented  and  contract- 
ed to  the  grading  of  the  street  and  cannot 
recover  damages  from  such  grading  occurring 
after  the  agreement — Carson  v.  St.  Joseph, 
91  Mo.  App.  324. 

50.  He  may  object  to  confirmation  of  the 
report  on  opening  and  grading  a  street — In 
re  Opening  of  Tiffany  .St.,  84  App.  Div.  (N. 
Y.)  525. 

51.  New  York  Consolidation  Act,  §  978, 
and  Greater  New  York  Charter  980,  provide 
a  separate  award  for  property  taken  and 
property  injured  but  not  taken — In  re  City 
of  New  York,  81  App.  Div.  (N.  Y.)  215.  How- 
ever see  Ross  v.  Cincinnati,   24  Ohio  Circ.  R. 


43,  for  dedication  of  street  as  waiver  of  in- 
jury to  lateral  support  by  cut  in  grade. 

52.  Toledo  V.  Weber,   23  Ohio  Circ.   R.  564. 

53.  Shaw  V.  Manhattan  R.  Co.,  79  N.  Y. 
Supp.  915. 

54.  Consent  by  city  to  elevated  railroad 
in  front  of  property  leased  by  it — Storms  v. 
Manhattan  R.  Co.,  77  App.  Div.   (N.  Y.)   94. 

55.  Humphreys  v.  Ft.  Smith  T.  L.  &  P. 
Co.   (Ark.)    71  S.  W.   662. 

56.  Where  not  acted  on  by  the  company  it 
cannot  be  construed  as  extinguishing  his 
easement  where  in  effect  it  merely  expresses 
a  willingness  to  give  a  restricted  consent- — 
Shaw  v.  Manhattan  R.  Co.,  79  N.  Y.  Supp.  915. 

57.  Rock  Island  &  P.  R.  Co.  v.  Johnson 
(111.)   68  N.  E.  549. 

58.  Lake  Shore,  etc.,  R.  Co.  v.  Town  o( 
Whiting  (Ind.)    67  N.  E.  933. 

59.  Rev.  Laws,  c.  50,  §  11 — Bell  v.  Newton 
(Mass.)   67  N.  E.  599. 

60.  Work  was  not  actually  begun  before 
conveyance — Howley  v.  Pittsburg,  204  Pa. 
428. 

61.  Evidence  of  damages,  see  post,  §  14. 

62.  Ely  V.  Conan  (Minn.)  97  N.  W.  737: 
Chicago  &  M.  Elec.  R.  Co.  v.  Mawman  (111.) 
69  N.  E.  66;  Dallas  v.  Taylor  (Tex.  Civ.  App.) 
69  S.  W.  1005;  Chicago  v.  McShane,  102  111. 
App.  239;  Village  of  Barrington  v.  Meyer,  103 
111.  App.  124;  Chicago  v.  Anglum.  104  111. 
App.  188;  St.  Louis  S.  W.  R.  Co.  v.  Hughes 
(Tex.  Civ.  App.)  73  S.  W.  976.  Gradin.i;-  street 
— Robinson  v.  St.  Joseph,  97  Mo.  App.  503. 
Opening  a  street — Meridian  v.  Higgins 
(Miss.)  33  So.  1.  Public  improvement — 
Wheeler    v.    Bloomington,    105    111.    App.    97; 


§6 


MEASURE  OF  COMPENSATION. 


lOlS 


property  is  put  by  the  owner,  or  to  which  it  is  adapted,  are  to  be  considered,®' 
together  with  its  location  and  possibility  of  development.**  Damages  cannot  be 
restricted  to  value  of  lands  taken  if  other  lands  are  injured,*^  but  they  must  lie 
in  the  same  body  or  continuous  tract  with  lands  taken.®*  Where  a  public  improve- 
ment is  made,  the  whole  improvement  must  be  considered.®^  Nominal  damages  aro 
sufficient  where  the  interest  of  the  owner  is  slight  and  intangible.®*  Eemote, 
speculative,  conjectural,®^  or  sentimentaF®  damages,  cannot  be  allowed. 


Rockford  v.  Doughty,  103  111.  App.  48.  Rail- 
road in  front  of  property — Boyer  v.  St.  Louis, 
S.  F.  &  T.  R.  Co.  (Tex.  Civ.  App.)  72  S.  W. 
1038;  Eastern  Texas  R.  Co.  v.  Eddings,  30 
Tex.  Civ.  App.  170.  Injury  from  approach  to 
bridge  in  highway — Lafean  v.  York  County, 
20  Pa.  Super.  Ct.  573.  Street  railway  in  front 
of  premise.s  and  raising  track  above  grade — 
Farrar  v.  Midland  Hlec.  R.  Co.  (Mo.  App.) 
74  S.  W.  500.  Closing  street  and  building 
subway  under  railroad  track  in  another 
street — Village  of  Winnetka  v.  Clifford.  201 
111.  475.  Injury  to  property  used  for  busi- 
ness purposes — Bailey  v.  Boston  &  P.  R. 
Corp.,  182  Mass.   537. 

The  value  to  the  seller  and  not  the  buyer 
must  determine — Kennebec  Water  Dist.  v. 
Waterville,  97  Me.  185.  Condemnation  of 
turnpike;  the  actual  value,  not  the  cost  of 
construction  at  time  of  taking,  is  the  meas- 
ure under  Const.  §  242,  and  Act  March  17, 
1896 — Richmond  &  L.  Turnpike  Road  Co.  v. 
Madison  County  Fiscal  Ct.,  24  Ky.  L.  R.  1260, 
70  S.  W.  1044.  What  the  owner  will  take 
for  the  property  or  what  the  jurors  w^ould 
take  if  they  were  owners,  is  immaterial — 
Seattle  &  M.  R.  Co.  v.  Roeder,  30  Wash.  244, 
70  Pac.  498.  A  prudent  and  beneficial  sale  Is 
the  measure  of  value — Kennebec  Water  Dist. 
V.  Waterville,  97  Me.  185.  No  reduction  can 
be  made  because  of  general  depreciation  of 
property  caused  by  the  improvement — Shi- 
mer  v.  Easton  R.  Co.,  205  Pa.  648.  The  value 
before  appropriation  must  not  be  affected  by 
notice  or  knowledge  that  the  property  was 
to  be  taken — Louisville  &  N.  R.  Co.  v.  Cum- 
nock (Ky.)  77  S.  W.  933;  Kennebec  Water 
Dist.  V.  Waterville.  97  Me.  185.  The  use  to 
which  the  petitioner  puts  the  property  is  to 
be  considered  in  damages  to  land  not  taken 
—South  Buffalo  R.  Co.  v.  Kirkover  (N.  Y.) 
68  N.  E.  366.  If  a  railroad  company  builds 
two  tracks  in  a  street  when  authorized  to 
build  one,  the  measure  is  the  difference  in 
the  value  of  injured  property  as  affected  by 
the  authorized  track  and  its  value  as  affected 
by  addition  of  the  unauthorized  track — Klos- 
terman  v.  Chesapeake  &  O.  R.  Co.,  24  Ky.  L. 
R.  1233,  71  S.  W.  6.  In  condemnation  of  land 
from  a  larger  tract  by  a  city  for  improve- 
ment of  water  works,  the  rule  of  damages 
is  the  market  value  of  the  property  taken 
for  all  legitimate  purposes  and  the  market 
value  as  increased  by  a  valuable  spring 
may  be  considered,  though  the  corporation 
Itself  was  supplying  water  to  citizens  and 
without  regard  to  the  particular  necessity 
of  the  city  for  this  distinct  tract  of  land — 
Ely  v.  Conan  (Minn.)   97  N.  W.  737. 

63.  Bailey  v.  Boston  &  P.  R.  Corp.,  182 
Mass.  537;  Chicago  &  M.  Elec.  R.  Co.  v. 
Mawman  (111.)  69  N.  E.  66;  South  Buffalo  R. 
Co.  V.  Kirkover  (N.  Y.)  68  N.  E.  366;  Boston 
Belting  Co.  v.  Boston,  183  Mass.  254.  Home- 
Btead  use — Eastern  Texas  R.  Co.  v.  Eddings, 


30  Tex.  Civ.  App.  170.  Land  taken  or  in- 
jured by  opening  highway — Watkins  v.  Hop- 
kins County  (Tex.  Civ.  App.)  72  S.  W.  872. 
Taking  railroad  right  of  way  for  telegraph 
line — Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Ohio 
Postal  Tel.  Cable  Co.,  68  Ohio  St.  306. 
Though  a  peculiar  and  increased  value  to  the 
owner  cannot  be  considered — United  States 
V.  Honolulu  Plantation  Co.  (C.  C.  A.)  122 
Fed.  581. 

64.  Where  extension  of  a  car  line  would 
render  suburban  property  valuable — St. 
Louis  S.  W.  R.  Co.  V.  Hughes  (Tex.  Civ. 
App.)    73   S.  W.   976. 

65.  Grant  v.  Hyde  Park,  67  Ohio  St.  166; 
Seattle  &  M.  R.  Co.  v.  Roeder,  30  Wash.  244, 
70  Pac.  498.  Even  though  not  mentioned  in 
the  petition  (Const,  art.  1,  §  16) — Sultan  Wa- 
ter &  Power  Co.  v.  Weyerhauser  Timber 
Co.,   31  Wash.   558,  72  Pac.   114. 

e<5.  Injury  to  one  of  three  adjoining  farms 
by  military  appropriation  wiJl  not  require 
damages  for  the  others-  "  "p  v.  United 
States,  24  Sup.  Ct,  114. 

G7.     Chicago  v.  Anglum,  104  111.  App.  188. 

68.  Where  riparian  owners  had  granted 
a  dam  proprietor  lower  down,  all  lands  that 
would  be  overflowed  by  raising  water  over 
twelve  feet  but  only  for  the  purpose  of  flow- 
age,  under  stipulation  that  if  land  was  not 
so  used  or  should  not  be  used  the  grant- 
ors might  buy  it  back,  and  the  pond  was 
condemned  by  the  city  and  the  rights  of 
all  lower  riparian  owners  w^ere  taken  for  a 
municipal  water  supply,  the  interest  of  the 
granting  riparian  owners  was  so  intangible 
and  valueless  even  though  the  fee  in  the 
land  granted  for  flowage  was  in  their  suc- 
cessors of  title  that  a  nominal  sum  granted 
in  the  commissioner's  report  establishing 
damages  was  sufficient — In  re  Brookfleld,  78 
App.  Div.  (N.  Y.)   520. 

69.  Land  for  railroad — East  &  W.  I.  R. 
Co.  v.  Miller,  201  111.  413.  Taking  part  of 
stone  quarry  for  a  railroad — Seattle  &  M.  R. 
Co.  V.  Roeder,  30  Wash.  244,  70  Pac.  498. 
Danger  too  remote  an  element  of  damage — 
Chicago  &  M.  Elec.  R.  Co.  v.  Mawman  (111.) 
69  N.  E.  66.  Building  of  railroad  embank- 
ment as  affecting  flow  on  riparian  lands — 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Vaughan  (Ark.) 
72  S.  W.  575.  Injury  to  market  value  of 
land  on  opening  a  street,  because  of  cost  of 
further  street  improvements  which  may  be 
made,  cannot  be  considered  as  a  substantive 
item  of  damages,  though  it  may  be  consid- 
ered the  fact — De  Benneville  v.  Philadelphia, 
204  Pa.  51.  Damages  from  interruption  of 
negotiations  for  sale  cannot  be  allowed 
where  it  did  not  appear  that  a  bona  fide 
transaction  was  defeated;  lands  released 
from  conditions  imposed  to  protect  New  York 
water  supply  (Laws  1896,  c.  674) — In  re  Col- 
lis,   76  App.  Div.    (N.   Y.)    368. 

70.  Homestead    taken   for   depot   purposes 


1016 


EMINENT  DOMAIN. 


§6 


Benefits  to  property  not  taken  cannot  be  set  off  against  the  value  of  property 
taken/^  nor  benefits  accruing  to  the  o^^Tier  in  common  with  the  general  public,  even 
as  against  damages  to  property  not  taken,^^  As  to  land  not  taken,  benefits  may  be 
-dlowed,'^  and  laws  providing  for  a  taking  of  property  by  municipalities  in  Wis- 
consin must  provide  for  set-off  of  such  benefits.'^*  Laws  regulating  set-off  of  benefits 
must  operate  uniformly/^  Greater  safety  from  elevation  of  railroad  tracks  cannot 
be  called  speculative  benefits/®  If  the  improvement  as  an  entirety  has  resulted 
in  benefit  rather  than  damage  to  property,  though  it  is  damaged  by  part  of  the 
improvement  standing  alone,  no  recovery  can  be  had  if  no  property  is  actual!}' 
taken.^^  If  it  does  not  appear  that  special  benefit  from  the  improvement  had  not 
been  considered  in  awarding  damages  in  condemnation,  such  benefit,  if  existing. 
cannot  be  set  off  against  the  damages.'*  If  a  land  owner  has  paid,  or  will  be 
obliged  to  pay,  an  assessment  for  street  improvements  in  front  of  lots,  only  benefits 
in  excess  of  such  assessment  can  be  off-set  against  his  damages.'®  Where  a  con- 
tract was  made  between  a  railroad  company,  which  had  commenced  construction 
without  acquiring  the  right  and  had  been  enjoined,  and  the  o-mier,  that  the  com- 
pany might  continue  construction  on  promise  to  pay  damages  to  be  assessed,  includ- 
ing value  of  bridge  abutments  on  the  land  and  of  the  land  taken,  and  payment 
of  a  bonus  not  to  be  considered  as  part  of  the  damages,  the  owner  could  recover 
the  value  of  the  land  taken,  regardless  of  special  benefits  to  tlie  remainder  from  con- 
struction of  the  road,  no  damages  being  sought  for  land  not  taken.^° 

Particular  elements  of  damage. — Danger  of  fire  from  a  railroad,  as  increas- 
ing insurance  rates,^^  or  noise  incident  to  operation  of  an  elevated  railroad,  such 


— Cane    Belt    R.    Co.    v.    Hughes    (Tex.    Civ. 
App.)   72  S.  W.  1020. 

71.  Railroad  appropriation — Guthrie  &  W. 
R.  Co.  V.  Faulkner  (Okl.)  73  Pac.  290;  South 
Buffalo  R.  Co.  V.  Klrkover,  86  App.  Div.  (N. 
Y.)    55. 

72.  Guthrie  &  W.  R.  Co.  v.  Faulkner 
(Okl.)  73  .  Pac.  290.  Code.  c.  49.  §  194... 
amended  by  Laws  1891,  p.  149.  c.  160 — South- 
port,  W.  &  D.  R.  Co.  V.  Owners  of  Piatt 
Land  (N.  C.)  45  S.  E.  589.  Benefits  from 
building  street  railroad  above  grade  of  street 
— Farrar  v.  Midland  Elec.  R.  Co.  (Mo.  App.) 
74  S.  W.  500.  General  rise  in  value  of  realty 
from  railroad  In  street — Pochila  v.  Calvert. 
W.  &  B.  V.  R.  Co.  (Tex.  Civ.  App.)  72  S.  W. 
255.  Railroad  in  front  of  land — Boyer  v.  St. 
Louis,  S.  F.  &  T.  R.  Co.  (Tex.  Civ.  App.)  72 
S.  W.  1038.  Opening  of  street — Meridian  v. 
Higgins  (Miss.)  33  So.  1.  Construction  of 
viaduct  In  street  damaging  abutting  prop- 
erty— Chicago  V.  Le  Moyne  (C.  C.  A.)  119 
Fed.  662.  Erection  of  depot  in  vicinity — 
Pochila  V.  Calvert,  W.  &  B.  V.  R.  Co.  (Tex. 
Civ.  App.)  72  S.  W.  255.  General  benefits 
from  an  improvement  by  any  corporation 
other  than  municipal,  cannot  be  set  off 
against  damages  resulting  therefrom  (Const, 
art.  1,  §  14,  requires  compensation  in  such 
cases  to  be  made  in  money  or  paid  into 
court  regardless  of  benefits) — Beveridge  v. 
Lewis.  137  Cal.  619,  67  Pac.  1040,  70  Pac. 
1083,  59  L.  R.  A.  581.  Pecuniary  benefits  re- 
sulting from  construction  of  a  subway  in 
another  street  by  a  railroad  company  as  con- 
.sideration  in  an  agreement  with  a  city  as  to 
closing  a  street,  differ  only  in  degree  and  not 
in  kind  from  that  accruing  to  the  general 
public — Village  of  Winnetka  v.  Clifford,  201 
111.   475. 

73.  Benefits  resulting  from  conduit  walls 


on  taking  of  property  by  city  to  Improve 
waterway — Brown  v.  Waterbury.  75  Conn. 
727.  Benefits  of  the  whole  improvement  to 
\butting  property  on  change  of  grade  of  a 
-street  may  be  considered — Chicago  v.  Mo- 
Shane,  102  111.  App.  239;  Village  of  Barring- 
ton  v.  Meyer,  103  111.  App.  124;  Chicago  v. 
.\nglum,  104  111.  App.  188. 

74.  Building  and  repair  of  city  docks 
(Fed.  Const,  art.  14,  §  1;  Const.  Wis.  art.  1,  ? 
13;  Racine  City  Charter,  Laws  1891.  pp.  206, 
207,  216,  c.  40.  §§  65-67.  77) — Lathrop  v.  Ra- 
cine (Wis.)   97  N.  W.  192. 

75.  Code  Civ.  Proc.  §  1248,  authorizing  set- 
ting off  of  benefits  on  taking  property  for 
public  use,  construed  in  connection  with 
Const,  art.  1,  §  14,  providing  that  no  right 
of  way  shall  be  appropriated  for  use  of  any 
other  than  a  municipal  corporation  until 
compensation  is  made,  irrespective  of  bene- 
fits, must  have  an  unequal  operation  since  It 
cannot  be  enforced  where  a  corporation  not 
municipal  is  seeking  to  condemn  a  right  of 
way,  and  violates  the  constitutional  provi- 
sion against  discrimination  not  justified  by 
intrinsic  differences  and  requiring  uniform 
operation  "  of  general  laws — Beveridge  v. 
Lewis.  137  Cal.  619,  67  Pac.  1040,  70  Pac. 
1083,  59  L.  R.  A.  581. 

76.  77.     Chicago  v.  Webb,  102  111.  App.   232. 

78.  In  subsequent  action  for  damages  by 
owner — Lamb  v.  Elizabeth  City,  131  N.  C. 
241. 

79.  Damages  for  change  of  grade — Carroll 
V.  Marshall   (Mo.  App.)   73  S.  W.  1102. 

80.  McElroy  v.  Kansas  City  &  I.  Air  Line. 
172  Mo.  546. 

81.  Building  over  100  feet  from  road — 
North  Arkansas  &  W.  R.  Co.  v.  Cole  (Ark.) 
70  S.  W.   312. 


§  6 


MEASURE  OF  COMPENSATION. 


1017 


as  constitutes  a  private  nuisance,  if  not  taken  alone  as  distin^ished  from  other 
concurring  causes  of  damage,*-  may  be  considered ;  but  not  mere  danger  from  con- 
struction or  operation  of  a  railroad.*^  Good  will  cannot  be  considered  where  the 
business  is  practically  without  competition.**  Damages  to  rental  and  market  value 
of  lands  because  of  diversion  of  business  cannot  be  allowed  f^  nor  loss  in  profits 
in  business  then  conducted  on  the  land;*®  nor  increased  expense  in  operating  busi- 
ness on  lands  not  adjacent  to  those  taken  ;*^  nor  value  of  improvements  by  petitione: 
on  land  with  consent  of  the  owner,**  nor  of  improvements  by  the  owner  with  notice 
of  the  proposed  improvement;*®  nor  consequential  injuries  to  land  not  taken  in 
erection  of  an  approach  to  a  county  bridge ;°"  nor  can  damages  to  crops  during 
occupancy  of  the  land  without  condemnation  be  added  to  permanent  damages.®^ 
In  opening  a  street,  the  cost  of  improvements  to  be  charged  against  the  property 
later  may  be  considered,  though  it  cannot  be  allowed  as  a  substantive  item  of 
damages;®-  and  the  question  of  probable  grade  may  be  determined  in  assessing 
damages  to  land  not  taken."^  Where  a  stone  quarry  is  condemned,  the  quality  and 
value  of  the  stone  quarried  and  the  royalty  given  by  the  lessee  may  be  considered  in 
determining  the  value  of  the  land."*  The  value  of  land  taken  by  crossing  a  rail- 
road with  a  highway  must  be  allowed  if  no  benefits  appear.®*  Damages  from  im- 
proper construction  and  operation  of  a  structure  or  improvement  cannot  be  allowed 
in  the  condemnation  proceedings.®*  In  taking  a  railroad  right  of  way,  that  tele- 
graph lines  were  built  along  such  way  under  a  contract  between  the  rralroad  com- 
pany and  a  telegraph  company  creating  an  additional  servitude  on  the  land  will 
not  entitle  the  owner  to  an  accounting  of  rents  and  profits  received  therefor  by  the 
railroad  company.®^  Damages  to  a  riparian  estate  from  interference  with  flowage 
must  be  limited  to  deprivation  of  use  of  the  water.®*  Interest  on  damages  assessed 
as  of  the  date  of  the  taking  may  be  given  though  the  owner  is  not  required 
to  remove  from  the  property,  and  does  not  remove  until  later.®" 


82.  Under  St.  1894,  pp.  764,  765,  c.  548,  §§ 
8.  9 — Baker  v.  Boston  El.  R.  Co.,  183  Mass. 
178. 

83.  Chicago  &  M.  Elec.  R.  Co.  v.  Mawman 
(111.)   69  N.  E.  66. 

84.  Water  plant  of  private  company — 
Kennebec  Water  Dist.  v.  Waterville,  97  Me. 
185. 

85.  Abutting  business  property  affected 
by  lowering'  a  street  under  a  subway  on  ele- 
vation of  railroad  tracks — Chicago  v.  Mc- 
Shane,  102  111.  App.  239. 

86.  Interference  with  flow  of  brook 
through  premises — Boston  Belting  Co.  v. 
Boston,  183  Mass.  254. 

87.  Floating  logs  on  other  lands  than 
those  taken  for  a  dam  and  flume — Sultan 
Water  &  Power  Co.  v.  Weyerhauser  Timber 
Co.,   31  Wash.  558,   72  Pac.  114. 

88.  Railroad  tracks — Omaha  Bridge  &  T. 
R.  Co.  v.  Whitney  (Neb.)  94  N.  W.  513.  Re- 
mainder men  cannot  recover  for  improve- 
ments on  land  under  contract  with  life  ten- 
ant, even  after  death  of  the  latter,  since 
entry  was  lawful — Chicago,  P.  &  St.  L.  R. 
Co.   V.   Vaughn    (111.)    69   N.   E.    113. 

89.  Improvements  on  land  before  estab- 
lishment of  street  grade — Wilbur  v.  Ft. 
Dodge  (Iowa)   95  N.  W.  186. 

90.  York  County  Act  of  Feb.  17,  1860  (P. 
L.  61)  relating  to  roads  and  bridges  in  that 
county — Lafean  v.  York  County,  20  Pa. 
Super.    Ct.    573. 

91.  Action  to  recover  permanent  damages 
for  telegraph  line  on  land — Hodges  v.  West- 
ern Union  Tel.  Co.   (N.  C.)   45  S.   E.   572. 


92.  De  Benneville  v.  Philadelphia,   204  Pa. 

51. 

93.  Grant    v.    Village    of    Hyde    Park,    67 

Ohio  St.   166. 

94.  Such  method  of  assessment  will  not 
separate  the  value  of  the  stone  from  that  of 
the  land — Seattle  &  M.  R.  Co.  v.  Rocder,  30 
Wash.  244,   70  Pac.  498. 

95.  Lake  Erie  &  W.  R.  Co.  v.  Shelley  (Ind. 
App.)    67   N.   E.   564. 

96.  Adjacent  property  injured  from  im- 
proper construction  of  a  railroad  (Code  Civ. 
Proc.  §  2221,  subds.  1,  2) — Montana  R.  Co.  v. 
Freeser  (Mont.)  74  Pac.  407.  Subsequent 
damages  in  taking  land  for  approach  to 
railroad  bridge — Rassell  v.  St.  Louis  S.  W. 
R.   Co.    (Ark.)    75   S.   W.   725. 

97.  Chicago.  M.  &  St.  P.  R.  Co.  v.  Snyder 
(Iowa)   95  N.  W.  183. 

98.  Boston  Belting  Co.  v.  Boston,  183 
Mass.  254.  Not  extended  to  value  of  the 
whole  flow,  taking  for  irrigation — Crawford 
Co.  v.  Hathaway  (Neb.)  93  N.  W.  781.  Value 
of  spring  as  affected — Leiby  v.  Clear  Spring 
Water  Co.,  205  Pa.  634.  Where  land  is  taken 
for  a  municipal  reservoir,  the  value  of  the 
submerged  land  as  a  foundation  for  such 
reservoir,  based  on  the  value  of  the  water 
per  million  gallons,  ,  is  not  a  proper  basis 
of  estimation,  since  the  city  had  acquired 
rights  of  lower  riparian  owners  to  unob- 
structed flow,  and  the  owners  of  such  lands 
merely  had  a  right  of  use  in  the  flowing 
water — In  re  Brookfield,  78  App.  Div.  (N.  Y.) 
520. 

09.     Taking  by  Metropolitan  park  commis- 


1018 


EMINENT  DOMAIN. 


§    6 


Accrual  and  period  of  damages. — Damages  for  railroad  appropriation  rmist.  be 
assessed  as  of  the  time  of  entry  ;^  for  a  street/  or  a  liighway,  as  of  the  time  of  open- 
ino-  f  for  appropriation  to  lay  gas  pipe  lines  in  Indiana,  as  of  the  time  of  filing  the 
instrument  of  appropriation.*  Compensation  for  property  taken  cannot  be  limited 
to  a  temporary  use  for  a  public  purpose,^  except  as  to  temporary  location  of  railroad 
tracks  in  streets  during  elevation  of  regular  tracks.®  Damages  to  land  on  botli 
sides  of  a  highway,  the  owner  of  which  is  entitled  to  certain  crossings,  from  a  street 
railroad  therein,  may  be  recovered  as  for  the  time  between  injury  of  the  crossings 
and  their  restoration.'' 

Talcing  rights  in  public  ways. — Damages  resulting  from  taking  rights  in  public 
ways  must  be  special  and  not  those  suffered  by  the  public  generally,^  except  as  to 
electric  roads  in  rural  highways,  as  to  which  general  depreciation  of  property  values 
may  be  recovered.*  Where  the  easement  only  of  a  highway  is  in  the  public,  a 
landowner  may  recover  compensation  for  the  estate  taken  for  a  gas  conduit  placed 
therein  under  a  county  grant,  and  damages  to  adjacent  premises.^"  Wliere  a  high- 
way is  taken  by  a  railroad  company  which  constructed  a  new  road  parallel  with  the 
old,  the  county  may  recover  the  cost  of  putting  the  new  road  in  as  good  condition 
as  the  old  road  at  condemnation.^^  Deposit  in  a  street,  with  due  care,  of  material 
and  machinery  by  a  railroad  company  to  facilitate  the  work  of  elevating  its  tracks 
is  not  an  element  of  damages  to  abutting  owners ;  but  substantial  damages  must  be 
allowed  an  abutting  owner,  injured  in  the  rental  value  of  his  land  and  in  the 
business  conducted  thereon,  by  temporary  railroad  tracks  in  a  street.^* 

Estate  or  interest  appropriated. — In  a  proceeding  to  assess  damages  for  land 
held  under  a  valid  title  by  adverse  possession  taken  for  a  highway,  that  the  OAvner 
had  no  valid  record  title  is  immaterial."  That  petitioner  does  not  acquire  the 
fee  may  be  considered."  In  taking  a  leasehold,  the  award  to  the  tenant  cannot 
be  deducted  from  the  award  to  owners  of  fee  in  remainder.^^  Riparian  rights  taken 
require  compensation  as  injuries  to  property  by  railroad  construction."  In  taking 
an  established  business  and  plant  under  an  existing  franchise,  many  elements  must 
be  noticed.*' 


sioners  under  St.  1894,  p.  283,  c.  288;  St.  1895, 
p.  504,  c.  450 — ^Hay  v.  Commonwealth,  183 
Mass.  294. 

1.  Seattle  &  M.  R.  Co.  v.  Roeder,  30  Wash. 
244,  70  Pac.  498.  Entry  prior  to  assessment 
of  damages — Van  Husan  v.  Omaha  Bridge  & 
T.  R.  Co.,  118  Iowa,  366.  Where  construction 
begun  under  prior  entry  was  restrained  and 
the  owner  licensed  the  company  to  proceed 
under  promise  to  pay  compensation  assessed 
— McElroy  v.  Kansas  City  &  I.  Air  Line, 
172  Mo.  546. 

2.  Damages  to  buildings  along  line  of 
street — In  re  City  of  New  York,  80  App.  Div. 
(N.  Y.)   622. 

3.  Hogsett  V.  Harlan  County  (Neb.)  97  N. 
W.   316. 

4.  Muncie  Natural  Gas  Co.  v.  Allison  (Ind. 
App.)   67  N.  E.  111. 

6.  Property  taken  for  sewer  which  will 
be  discontinued  after  a  certain  number  of 
years  (Act  April  14,  1881.  p.  234,  §  4)— Wa- 
terbury  v.  Piatt,  75  Conn.  387. 

6.  It  cannot  render  compensation  unnec- 
essary— McKeon  v.  New  York,  N.  H.  &  H.  R. 
Co.,  75  Conn.  343. 

7.  Georgetown  &  L.  Traction  Co.  v.  Mul- 
hoUand.  25  Ky.  L.  R.  578,  76  S.  W.  148. 

8.  Injury  from  locating  railroad  in  street 
— Bailey  v.   Boston   &   P.  R.   Corp.,   182  Mass. 


537;  St.  1894,  p.  764,  c.  548,  §§  8,  9;  Baker  v. 
Boston  El.  R.  Co..  183  Mass.  178. 

9.  Shimer  v.  Easton  R.   Co..  205  Pa.   648. 

10.  Ward  v.  Triple  State  Natural  Gas  & 
Oil  Co.,  25  Ky.  L.  R.  116,  74  S.  W.  709. 

11.  St.  Louis,  S.  F.  &  T.  R.  Co.  v.  Grayson 
County  (Tex.  Civ.  App.)   73  S.  W.  64. 

12.  The  damages  must  be  limited  to  the 
time  of  deprivation — McKeon  v.  New  York, 
N.  H.  &  H.  R.  Co..  75  Conn.  343. 

13.  Hohl  V.  Osborne   (Iowa)   92  N.  W.  697. 

14.  Sexton  V.  Union  Stock  Yard  &  Transit 
Co.,  200  111.  244.  The  value  of  a  spring  on 
land  through  which  a  railroad  is  built  can- 
not be  allowed  unless  it  is  destroyed — Guth- 
rie &  W.  R.  Co.  V.  Faulkner  (Okl.)  73  Pac. 
290. 

15.  St.  Louis  V.  Abeln,  170  Mo.  318.  Under 
Acts  1897,  c.  19 — Board  of  Levee  Com'rs  v. 
Nelms   (Miss.)   34  So.  149. 

16.  Enjoyment  of  flowage  of  natural 
stream  (Comp.  St.  1901,  §  93a,  art.  2,  §  41, 
and  Const,  art.  1,  §  21,  construed) — Crawford 
Co.  V.  Hathaway   (Neb.)   93  N.  W.  781. 

17.  In  taking  the  plant  of  a  water  com- 
pany the  value  cannot  be  limited  to  the  cost 
of  construction  at  that  time  of  a  plant  of 
equal  value  and  modern  design,  since  it  is 
the  plant  of  a  company  In  business  and  to 
do  so  would  be  to  substitute  one  element  of 


§8 


PROCEEDINGS  IN  GENERAL. 


1019 


Sufficiency  of  damages}* — ^An  agreement  by  a  county  to  spend  a  certain  sum  in 
improvement  of  a  road  at  request  of  a  landowner,  and  for  bis  benefit,  in  lieu  of 
damages  wliere  duly  carried  out,  is  due  compensation  for  land  taken.^^  Deposit  of 
damages  before  entry  of  judgment  cannot  prejudice  tbe  landowner.-" 

§  7.  Wlio  is  liable  for  compensation. — Damages  to  an  abutting  owner  from 
original  establishment  of  a  street  grade  cannot  be  recovered  from  a  municipal 
corporation,^^  unless  by  statute.^-  A  city  is  liable  for  change  of  street  grade  caused 
by  it.^^  Elevation  of  a  railroad  track  on  the  right  of  way  in  a  city  will  not  render 
the  city  liable  for  damages  to  property  owners."*  That  an  order,  under  which  a 
city  built  a  viaduct  in  a  street,  was  void,  or  that  it  was  built  in  the  exercise  of  po- 
lice power,  will  not  prevent  liability  of  the  city  for  damages  to  abutting  proper- 
ty.^^  One  county  cannot  be  compelled  to  pay  for  any  portion  of  a  turn  pike 
road  lying  within  the  limits  of  another  county.^*  A  borough  is  liable  for  damages 
from  change  of  grade  of  a  road  on  the  line  between  the  borough  and  a  townsliip 
where  the  borough  authorities  directed  and  paid  for  the  clxange.^^  ISTo  person- 
al liability  is  imposed  upon  a  land  owner,  against  whom  an  assessment  is  levied, 
to  pay  for  lands  appropriated  by  a  city  in  the  exercise  of  eminent  domain  under  a 
law  providing  for  the  levy  of  such  assessment.^* 

§  8.     Condemnation  proceedings  in  general.-^ — There  must  be  a  legal  procecd- 


value  for  the  measure  of  value  Itself;  the 
appraisers  must  consider  that  the  plant  is 
an  active  concern;  its  present  efficiency;  the 
time  necessary  to  build  it  anew,  the  time  and 
cost  of  development  to  its  present  state  of 
business  and  income;  the  added  income  and 
profits,  If  any,  ■which  would  accrue  to  a  pur- 
chaser during  time  required  to  build  the 
plant  anew  and  to  develop  the  business  and 
income;  all  franchise  rights  and  privileges; 
the  right  to  continue  business  thereunder 
subject  to  regulation;  that  the  business  is 
practically  without  competition;  that  further 
development  may  be  necessary  to  develop  its 
use  and  that  only  reasonable  water  rates  can 
be  charged;  any  increase  of  value,  due  to 
natural  causes;  the  value  of  the  plant  as 
property  in  itself.  But  they  cannot  consider 
the  fact  that  the  plant  will  be  taken  as  re- 
ducing its  value;  nor  past  misbehavior  of  the 
company  rendering  tlie  franchise  liable  to 
forfeiture';  nor  excess  of  water  rates  char- 
ged in  the  past;  nor  impairment  of  efficiency 
of  administration  by  combination  of  many 
water  systems  under  one  management;  nor 
damages  to  other  property  not  in  relation  to 
the  system  except  that  of  common  owner- 
ship; nor  bad  faith  of  the  company  in  the 
past — Kennebec  Water  Dist  v.  "Waterville, 
97  Me.  185. 

18.  Sufficiency  of  award  (In  re  City  of 
New  York.  84  App.  Div.  [N.  Y.]  455)  for  an 
additional  strip  of  about  three  acres  on  each 
side  of  a  railroad  right  of  way  (Chicago,  M. 
&  St.  P.  R.  Co.  v.  Brink  [S.  D.]  94  N.  W.  422) 
of  damages  to  abutting  property  by  opera- 
tion of  railroad  tracks  on  new  grade  of 
street  and  construction  of  stone  wall  inter- 
fering with  view,  air  and  light — Louisville  & 
N.  R.  Co.  v.  Cumnock   (Ky.)   77  S.  W.  933. 

Destruction  of  a  building  erected  on  land 
with  consent  of  the  owner  of  a  private  ease- 
ment in  taking  land  for  a  street  entitles  the 
owner  of  the  land  to  a  substantial  award 
for  the  building — In  re  Opening  of  Summit 
Ave.,   82  N.  Y.   Supp.  1027. 


19.  Welch  V.  Tipperry  (Neb.)  92  N.  W. 
582. 

20.  Madera  County  v.  Raymond  Granite 
Co.,   139  Cal.  128,  72  Pac.  915. 

21.  O'Donnell  v.  White   (R.  I.)   53  Atl.   633. 

22.  The  right  does  not  exist  at  common 
law — Reilly  v.  Ft.  Dodge,  118  Iowa,  633. 

23.  Where  liability  of  railroad  companies 
for  damages  in  construction  of  a  viaduct 
over  tracks  in  a  city  is  determined  on  appeal, 
and  afterward  the  city,  the  parties  and  the 
companies  stipulated  for  an  entry  of  judg- 
ment requiring  the  viaduct  to  be  constructed 
according  to  a  revised  plan,  the  additional 
cost  of  which  is  to  be  borne  by  the  city,  and 
the  city  raised  the  grade  of  the  street  in 
front  of  Improved  property  to  its  damage, 
and  the  viaduct  was  built  in  conformity  with 
such  changed  grade,  the  city  having  caused 
the  work  to  be  done  is  primarily  liable  for 
consequential  damages  regardless  of  the  re- 
lations between  it  and  those  performing  the 
construction — Dickerman  v  Duluth,  88  Minn. 
288. 

24.  By  ordinance — Chicago  v.  Webb,  102 
111.   App.    232. 

25.  The  latter  condition  is  decided  under 
the  provision  of  the  Constitution  against 
taking  private  property  for  public  use  with- 
out just  compensation — Chicago  v.  Le  Moyne 
(C.  C.  A.)  119  Fed.  662. 

2G.  Under  Act  June  2,  1887  (Pub.  Laws 
306)  authorizing  condemnation  of  turn  pike 
rights  wholly  or  in  part  in  any  county  and 
assessment  of  damages  on  the  proper  county 
— In  re  Factoryville  &  A.  Turnpike  &  Plank 
Road,  19  Pa.  Super.  Ct.  613. 

27.  Haggart  v.  California  Borough,  21  Pa. 
Super.  Ct.  210. 

28.  Comp.  St.  1901,  §  158,  c.  12a — Omaha  v. 
State  (Neb.)   94  N.  W.  979. 

29.  Traction  Act  of  1893,  §  14  (Pub.  Laws 
1893,  p.  302;  Gen.  St.  p.  3235)  prescribing 
practice  In  condemnation,  is  superseded  by 
Gen.  Condemnation  Act  of  1900.     (Pub.  Laws 


1020 


EMINENT  DOMAIN. 


§8 


ing  for  condemnation,'*  unless  as  to  persons  whose  interests  do  not  require  it.'*  Only 
one  proceeding  in  one  county  is  necessary  to  condemn  a  telegraph  right  of  way 
in  many  counties.^^  One  proceeding  by  a  city  is  sufficient  to  take  property  to 
build  a  bridge,  and  may  include  building  of  the  bridge  and  the  widening  of  streets 
leading  thereto.^^  An  attempt  by  one  railroad  company  to  condemn,  for  right  of 
way  purposes,  an  entire  tract  of  land  belonging  to  another,  part  of  which  is  in 
actual  and  necessary  use  for  railway  purposes  and  for  which  a  single  award  ia 
made,  is  entirely  void.^*  Petitioner  must  be  given  a  reasonable  time  for  condem- 
nation.^* An  application  by  a  railroad  company  to  take  land  of  plaintiff  in  tres- 
pass pending  against  it  for  entry  before  award  and  appeal  therefrom  cannot  be 
consolidated  with  the  action  nor  are  the  two  proceedings  merged.^®  A  rental  con- 
tract with  a  railroad  company  providing  for  removal  at  expiration,  will  not  give 
a  telegraph  company  the  right  to  a  petition  to  condemn  the  right  of  way.^^  Pro- 
ceedings must  affirmatively  appear  to  have  substantially  followed  authorizing  stat- 
utes.^* If  the  statutes  provide  for  a  full  hearing,  special  provision  for  determina- 
tion of  benefits  is  unnecessary.^®  A  conveyance  of  land  after  filing  of  the  appli- 
cation and  notice  to  the  owner  will  not  affect  the  proceedings.*" 

Conditions  precedent;  discontinuance  or  abandonment. — Petitioner's  charter 
need  not  describe  the  route  of  its  line,  nor  need  such  line  be  surveyed  if  data  of  a 
definite  location  otherwise  appear.**  Proceedings  by  a  railroad  are  not  void  be- 
cause its  line  was  not  located  by  the  company  or  directors  but  by  certain  offi- 
cers.*^ The  petitioner  may  discontinue  the  proceedings,*^  and  a  city  may  abandon 
proceedings  in  good  faith.**  An  agreement  by  the  parties  for  abandonment  is 
binding.*^ 


1900,  p.  79) — Paterson  &  State  Line  Traction 
Co.  V.  De  Gray  (N.  J.  Law)  56  Atl.  250. 

30.  Rev.  St.  1899.  §  8251 — Mound  City  Land 
&  Stock  Co.  V.  Miller,  170  Mo.  240. 

31.  A  railroad  company  which  had  no  no- 
tice of  proceedings  for  establishment  of  a 
highway  across  its  right  of  way  and  was 
awarded  no  damages,  is  not  thereby  deprived 
of  its  property  without  due  process  of  law 
and  compensation  so  as  to  affect  the  rights 
of  another  company  which  succeeded  to  its 
rights,  property  and  franchises — Baltimore, 
etc..   R.  Co.  V.  State,   159  Ind.   510. 

32.  Fed.  Const.  Amend.  14,  is  not  violated 
by  23  St.  at  Large,  p.  61 — South  Carolina. 
etc.,  R.  Co.  V.  American  Tel.  Co.,  65  S.  C.  459. 

33.  Under  Laws  1895,  c.  986,  authorizing 
construction  of  a  bridge  over  the  Harlem 
River  by  the  City  of  New  York — In  re  City 
of  New  York.  174  N.  Y.  26. 

34.  Atchison,  etc.,  R.  Co.  v.  Kansas  City, 
etc..  R.  Co.  (Kan.)  73  Pac.  899. 

3.").  A  railroad  company  which  had  con- 
structed tracks  over  land  claiming  under  a 
deed  from  the  life  tenant  has  a  reasonable 
time  after  death  of  the  tenant,  and  suit  by 
the  remaindermen  for  partition  within  which 
to  condemn  the  property — Chicago,  etc.,  R. 
Co.  v.  Vaughn  (111.)  69  N.  E.  113.  A  railroad 
company  entering  realty  under  a  lease  with 
a  view  to  purchase  when  possessed  and 
building  part  of  its  line  thereon,  may  re- 
strain the  lessor  for  a  reasonable  time  from 
dispossessing  it  of  the  land  so  that  it  may 
condemn  the  land  by  proper  proceedings — 
Winslow  V.  Baltimore  &  O.  R.  Co.,  188  U.  S. 
646. 

36.  The  application  is  no  bar  to  the  action 
— Georgia  R.  &  Banking  Co.  v.  Gardner  (Ga.) 
45  S.  E.  600. 


37.  "Western  Union  Tel.  Co.  v.  Pennsyl- 
vania R.  Co.,  120  Fed.   362. 

38.  Brown  v.  Macfarland,  19  App.  D.  C. 
525;   St.  Louis  v.  Koch.  169  Mo.  587. 

39.  Drainage  of  wheat  lands  under  Gen. 
Laws  1901.  c.  258 — State  v.  Board  of  Com'ra, 
87  Minn.  325. 

40.  Traction  railway  (3  Gen.  St.  p.  3235, 
called  the  Traction  Act) — Houston  v.  Pater- 
son State  Line  Traction  Co.  (N.  J.  Law)  54 
Atl.   403. 

41.  The  articles  of  incorporation  of  a  tele- 
phone company  need  only  express  tl  *•  gen- 
eral purpose  of  the  business  (Sand.  &  H.  Dig. 
§  2770) — St.  Louis,  etc.,  R.  Co.  v.  Southwest- 
ern Tel.  Co.   (C.  C.  A.)   121  Fed.  276. 

42.  Tennessee  Cent.  R.  Co.  v.  Campbell 
(Tenn.)   73  S.  W.  112. 

43.  The  landowner  cannot  then  compel 
appointment  of  commissioners  to  assess  dam- 
ages to  obtain  expenses.  Code.  §§  3371,  3373, 
3379.  3380,  providing  for  condemnation  pro- 
ceedings, and  §  3374  regarding  abandonment 
of  proceedings  by  the  petitioner  within  30 
days  after  entry  of  the  final  order  by  written 
notice  and  payment  of  fees  and  expenses — • 
County  of  Onondaga  v.  "White,  38  Misc.  (N. 
Y.)   587. 

44.  "While  a  city  attempting  to  condemn 
private  property  for  internal  improvements 
may  abandon  proceedings  under  the  Code,  §§ 
SSO.  884.  1999,  2008-2011.  it  must  do  so  in 
good  faith  with  intent  to  surrender  com- 
pletely the  project  as  far  as  the  land  in- 
volved is  concerned,  otherwise  the  first 
award  in  such  proceedings  will  bind  the 
municipality — Robertson  v.  Hartenbower 
(Iowa)  94  N.  "W.  857. 

45.  Independent     contract     treating     pro- 


§  10 


APPLICATIONS,  ETC. 


1021 


Parties;  bond. — The  state  and  a  water  company  need  not  be  made  parties  to  a 
proceeding  by  a  railroad  company  to  take  land  held  imdcr  contract  from  the 
state  and  over  which  a  water  company  has  a  right  of  way.*®  Where  land  was  con- 
veyed to  petitioner  before  proceedings  commenced,  former  owners  need  not  be 
joined,  if  the  mortgagee  is  a  party.*^  A  telegraph  company  operating  on  a  rail- 
road right  of  way  must  be  a  party  to  condemnation  of  the  right  of  way  by  a  tele- 
phone company/*  If  dedication  for  a  street  is  unaccepted,  the  owner  is  a  neces- 
sary party  to  condemnation  by  a  traction  company.*^  A  bond  supporting  a  peti- 
tion to  open  a  private  road  for  a  definite  sum,  double  the  probable  cost  of  the 
proceedings  as  given  in  the  bond,  is  sufficient  though  no  unconditional  promise  is 
made  to  pay  all  expenses. °° 

§  9.  Jurisdiction.^^ — The  Superior  Court  of  Washington  may  entertain  pro- 
ceedings by  a  street  railway  to  take  a  right  of  way,^^  In  California,  the  proceed- 
ings must  be  brought  in  the  superior  court  of  the  county  where  the  property  is 
situated.'*  A  proceeding  before  a  justice,  to  drain  agricultural  lands,  will  lie 
without  regard  to  the  county  in  which  the  lands  are  found,  since  it  affects  only 
the  land  over  which  the  ditch  is  to  be  constructed.^* 

§  10.  Applications;  petitions;  pleadings.^^ — A  greater  interest  in  land  than 
the  law  allows  cannot  be  requested.^®  If  petitioner  proceeds  as  an  agent,  the 
agency  must  be  alleged.^^    The  public  use,  and  the  necessity  of  taking,  must  be  al- 


ceedings    as    void — Sanborn    v.    Van    Duyne 
(Minn.)   96  N.  W.  41. 

46.  Ballinger's  Ann.  Codes  &  St.  §§  5637. 
5658,  564C — State  v.  Superior  Ct.,  31  Wash. 
445,   72  Pac.   89. 

47.  Marquette,  etc.,  R.  Co.  v.  Longyear 
(Mich.)    94   N.  W.   670. 

48.  South  Carolina,  etc.,  R.  Co.  v.  Amer- 
ican Tel.  Co.,  65  S.  C.  459. 

49.  P.  L.  302  (Gen.  St.  p.  3235) — Pease  v. 
Paterson  &  S.  L.  Traction  Co.  (N.  J.  Law) 
54  Atl.   524. 

.10.  Pol.  Code,  §§  2692,  2683 — Madera  Coun- 
ty V.  Raymond  Granite  Co.,  139  Cal.  128,  72 
Pac.   915. 

51.  An  act  providing  that  civil  actions  or 
special  proceedings  before  the  clerk  of  the 
superior  court  in  North  Carolina  shall  be 
sent  to  the  superior  court  before  the  judge 
giving  him  jurisdiction  and  requiring  him  to 
determine  all  matters  of  controversy,  refers 
to  proceedings  in  actions  so  sent  before  the 
judge  in  term  and  does  not  authorize  an  ap- 
peal from  the  clerk's  rulings  on  exceptions 
to  the  report  of  the  commissioners  in  con- 
demnation to  the  judge  at  chambers  (Code 
1883,  §  1946  construed  in  connection  with 
Act  1887.  p.  15,  c.  276  and  Code  1882,  §  252) 
— Cape  Fear  &  N.  R.  Co.  v.  Stewart,  132  N. 
C.  248. 

52.  State  V.  Superior  Ct.,  30  Wash.  219,  232, 
70  Pac.  484. 

53.  Code  Civ.  Proc.  §§  392.  395  and  amend- 
ment of  1901  to  §  394,  construed  in  connec- 
tion with  §§  22.  23,  and  1243 — Santa  Rosa  v. 
Fountain  Water  Co.  (Cal.)  71  Pac.  1123. 

54.  Lile  V.  Gibson,  91  Mo.  App.  480. 

55.  (Includes  maps,  plans,  etc.). 

A  petition  by  a  railroad  company  reciting 
that  the  company  was  organized  to  construct 
a  railroad  from  a  certain  point  to  another 
point  on  the  shore  of  a  lake,  that  it  intended 
in  good  faith  to  construct  such  road  from 
the  point  just  named  to  a  certain  point,  and 
thence  to  the  shore  of  the  lake,   that  it  had 


caused  surveys  to  be  made,  and  had  located 
its  road,  is  sufficient  (Under  Comp.  Laws,  § 
C243,  as  amended  by  Acts  1901,  p.  115.  Act 
No.  80) — Marquette,  etc.,  R.  Co.  v.  Longyear 
(Mich.)   94  N.  W.  670. 

Sufficiency  of  description  In  Instrument  of 
appropriation.  Description  of  lands  sought 
to  be  condemned  for  a  private  road— Madera 
County  v.  Raymond  Granite  Co.,  139  Cal.  128. 
72  Pac.  915.  Description  of  a  right  of  way 
for  levee  purposes  in  petition  so  as  to  con- 
fer jurisdiction  on  the  county  court,  under 
Rev.  St.  §  1889,  c.  7796,  amended  by  Laws 
1893,  p.  222 — Williams  v.  Kirby,  169  Mo.  622. 
A  petition  to  take  land  for  drains  for  agri- 
cultural, sanitary  or  domestic  purposes,  need 
not  detail  all  the  space  to  be  taken  by  the 
commissioners,  under  Act  March  19,  1895 
(Laws  1895,  p.  142,  c.  79) — Lewis  County  v. 
Scobey  (Wash.)  71  Pac.  1029.  Where  at- 
tempts to  purchase  have  failed,  a  railroad 
company  need  not  include,  in  one  petition, 
all  descriptions  in  the  county  necessary  for 
its  road — Marquette,  etc.,  R.  Co.  v.  Longyear 
(Mich.)  94  N.  W.  670.  A  petition  to  take  land 
for  a  turnpike  sufficiently  describes  the  road 
where  it  sets  forth  that  It  begins  at  one  of 
the  terminal  points  of  the  turnpike  and  con- 
tinues therefrom  to  a  line  between  a  bor- 
ough named  in  one  county,  and  a  borough 
named  In  another  county,  under  Act  June 
1887  (P.  L.  306)— In  re  Factoryville  &  A. 
Turnpike  &  Plank  Road,  19  Pa.  Super.  Ct. 
613.  A  petition  to  take  part  of  a  railroad 
right  of  way  for  a  telephone  line  sufficiently 
shows  the  location  and  construction  of  the 
line  by  statements  that  posts  will  be  sunk 
along  the  main  line  a  certain  distance  from 
the  center  of  the  track  for  a  certain  number 
of  miles — South  Carolina,  etc.,  R.  Co.  v. 
American  Tel.  Co.,  65  S.  C.  459. 

56.  Gas  company  cannot  ask  fee  where 
only  easement  can  be  taken  (Burns'  Rev.  St. 
1901,  §  5104) — Great  Western  Natural  Gas  & 
Oil  Co.  V.  Hawkins,   30  Ind.  App.  557. 

57.  Natural  person  seeking  land  as  agent 


1022 


Eminent  domain. 


§  12 


leged ;"  but  a  petition  by  a  city  to  take  land  for  streets  need  not  allege  that  the 
city  has  made  provision  to  pay  the  award  either  by  general  taxation  or  special 
assessmGnt.=*^  After  filing  an  application  to  take  land  for  a  street,  the  city  coun- 
cil cannot  change  its  terms  to  include  more  or  less  land  by  passage  of  an  ordi- 
nance.®" A  petition  by  a  telegraph  company  need  not  be  authenticated  by  a  cor- 
porate seal.®^ 

A  general  and  specific  denial  suffices  to  try  the  right  of  a  foreign  corporation 
to  do  business  in  the  state.®^'  Wliere  a  complaint  to  take  land  to  widen  a  street 
avers  that  costs,  damages,  and  expenses  were  to  be  paid  by  special  assessment  on 
property  benefited  and  not  by  the  state,  a  demurrer  fails  to  raise  the  question 
whether  such  improvement  violates  a  law  limiting  indebtedness  of  cities.®^  That 
the  county  fenced  the  part  of  land  necessary  to  location  of  a  road  may  be  shown 
in  proceedings  to  take  the  land  for  the  road,  to  prevent  the  recovery  of  such  ex- 
pense by  the  landowner  if  pleaded.®*  Filing  a  proper  profile  is  a  condition 
precedent  to  an  order  of  condemnation.®^ 

§  11.  Process;  notice,  citation,  implication. — Summons  must  be  served  on,®" 
or  notice  given,  all  interested  persons  or  occupants,®^  except  as  to  proceedings  to 
take  land  for  a  school  house  in  Kansas,®^  or  as  to  a  grantee  in  a  conveyance  of 
lands  after  filing  of  application  and  notice  of  condemnation  to  the  owner,®*  or 
as  to  former  owners  who  conveyed  to  petitioner  before  proceedings  commenced, 
the  mortgagee  being  a  party,^®  or  as  to  a  railroad  company  succeeding  another 
company  over  whose  road  a  highway  was  extended  ;^^  and  must  include  all  lands 
intended  to  be  condemned."  Xotice  must  be  provided  for  in  a  statute  regulating 
the  procedure."  As  to  land  of  a  nonresident,  it  may  be  served  on  his  agent.^* 
Occupants  may  object  for  failure  to  serve  all  owners." 

§  12.    Hearing  and   determination   of  right   to   condemn.''^ — Courts   cannot 


of  servant  for  public  use — Beverldge  v.  Lew- 
is, 137  Cal.  619,  70  Pac.  1083. 

58.  I>aiid  for  gas  pipe  line,  under  Burns' 
Rev.  St.  1901,  §  5103 — Great  Western  Nat- 
ural Gas  &  Oil  Co.  V.  Hawliins,  30  Ind.  App. 
557.  Complaint  by  city  to  establish  streets 
may  do  so  by  setting  out  ordinance  showing- 
necessity  (Rev.  St.  1901.  §  2451,  par.  2454)  — 
Sanford  v.  Tucson  (Ariz.)  71  Pac.  903.  A 
petition  filed  with  grade  crossing  commis- 
sioners of  a  city  asking  that  application  be 
made  for  appointment  of  a  commission  to  ap- 
praise damages  from  construction  of  a  via- 
duct through  a  street,  alleging  that  under  an 
agreement  between  the  commissioners  in  be- 
half of  the  city  and  a  railroad  company  and 
undel-  the  act  creating  such  commissioners 
and  its  mandatory  and  supplemental  acts,  a 
cut  was  made  in  a  certain  highway,  is  suffi- 
cient to  show  that  the  cut  was  the  result  of 
a  determination  by  the  commissioners  that 
It  was  necessary  to  carry  out  a  plan  adopted 
by  them  (Laws  1890,  c.  255,  known  as  the 
Grade  Crossing  Act) — People  v.  Adam,  79 
App.  Div.   (N.  Y.)    306. 

59.  Rev.  Code  1899,  §  5962— Lidgerwood  v. 
Michalak  (N.  D.)   97  N.  W.  5  41. 

60.  Grant  v.  Hyde  Park,  67  Ohio  St.  166. 

61.  Under  Act  March  20,  1900  (Pub.  Laws 
1900.  p.  79) — Coles  V.  Midland  Tel.  Co.,  68  N. 
J.  Law,  413. 

62.  Act  No.  124.  1880.  on  failure  of  show- 
ing dismissal  will  follow — South  Western 
Tel.  Co.  V.  Kansas  City,  etc.,  R.  Co.,  108  La. 
691. 

63.  Harrison    Act    limiting    municipal    In- 


debtedness— Sanford    v.    Tucson     (Ariz.)     71 
Pac.  903. 

64.  Watkins  v.  Hopkins  County  (Tex.  Civ. 
App.)   72  S.  W.  872. 

65.  Kinston  &  C.  R.  Co.  v.  Stroud,  132  N. 
C.   413. 

66.  "Special  proceeding"  for  condemna- 
tion (Code  1883,  §§  199,  278,  279.  1943) — Caro- 
lina, etc.,  R.  Co.  v.  Pennearden  Lumber  & 
Mfg.  Co.,  132  N.  C.  644. 

67.  Otherwise  commissioners  cannot  be 
appointed  (Railroad  Law,  S  6  [Laws  1890,  c. 
565]  regulating  condemnation  of  lands  by 
steam  railroads) — Greenwich  &  J.  R.  Co.  v. 
Greenwich,  etc.,  R.,  75  App.  Div.    (N.  Y.)    220. 

68.  Gen.  St.  1901,  §  6131 — Buckwalter  v. 
School  Dist.  No.  42,   65  Kan.  603,  70  Pac.   605. 

69.  3  Gen.  St.  p.  3235,  called  the  Traction 
A.ct — Houston  V.  Paterson  State  Line  Trac- 
tion Co.   (N.  J.  Law)    54  Atl.  403. 

70.  Marquette  &  S.  E.  R.  Co.  v.  Longyear 
(Mich.)   94  N.  W.  670. 

71.  Const.,  Bill  of  Rights,  §  21 — Baltimore, 
etc.,  R.  Co.  V.  State.   159  Ind.   510. 

72.  For  levee  purposes  (Laws  1893,  p.  20(^ 
§  24;  Rev.  St.  1889,  §  7796,  amended  by  Laws 
1893,  p.  222,  and  Rev.  St.  1889,  S  7797) — Wil- 
liams V.  Kirby,   169   Mo.   622. 

73.  Board  of  Education  v.  Aldredge  (Okl.) 
73  Pac.  1104. 

74.  Watkins  v.  Hopkins  County  (Tex.  Civ. 
App.)   72  S.  W.  872. 

75.  Greenwich  &  J.  R.  Co.  v.  Greenwich, 
etc.,  R.,  75  App    Div.   (N.  Y.)   220. 

76.  Sufficiency  of  evidence  In  proceedings 
to   condemn   land   for   a   street    to   overcome 


§  12 


HEARING  ON  RIGHT  TO  CONDEMN. 


1023 


revise  a  legislative  grant  on  the  ground  of  impropriety  or  inexpediency/^  but  the 
right  to  condemn  may  be  determined,  though  questions  of  fact  are  involved.''*  A 
law  requiring  the  mode  of  crossing  at  intersection  of  two  railroads  to  be  submit- 
ted to  the  circuit  court  does  not  apply  to  a  crossing  of  a  railroad  by  a  street  or 
interurban  electric  railway.'^®  The  necessity  of  taking  property  is  a  question  for 
the  court/"  but  the  question,  whether  other  property  than  that  sought  can  be 
condemned,  cannot  be  determined. ^^  In  condemnation  of  a  private  passway,  the 
jury  cannot  determine  whether  the  proposed  route  is  the  most  practicable  or  feasi- 
ble. ^^  The  necessity  of  a  crossing  of  one  railroad  line  by  another  at  a  certain 
place  is  properly  determined  by  a  jury  of  the  vicinage  whose  finding  will  not  be 
disturbed  unless  manifestly  wrong.*^  A  landowner  is  not  entitled  to  have  issues 
of  fact  in  proceedings  to  condemn  a  right  of  way,  which  are  raised  by  his  answer, 
tried  by  a  jury  before  assessment  of  damages  by  commissioners  or  jurors  and  be- 
fore appeal  taken.^*  The  court  must  find  that  the  new  use  will  not  interfere  with 
a  public  use  to  which  the  property  is  already  applied.*'  The  right  to  condemn 
must  appear  on  the  face  of  the  proceedings,**  and  the  right  to  condemn  because  of 
failure  to  purchase  must  be  shown  by  evidence  of  negotiations  or  reasonable  ef- 
fort to  purchase.*^  The  grade  of  a  highway  will  be  presumed  to  have  been  low- 
ered by  a  street  railroad  company  with  consent  of  the  township,  if  done  without 
objection.**  Defendant  may  object  that  plaintiff  is  a  corporation,  the  major- 
ity of  the  stock  of  which  is  owned  by  aliens  and  hence  is  prohibited  from  owning 
land  within  the  state.*®     Appearance  and  filing  cross  petition  in  condemnation,  and 


presumption  that  certain  land  within  the 
municipality  Tvas  part  of  its  territory  and 
under  its  jurisdiction — Miller  v.  Sterling,  198 
111.  523.  Sufficiency  of  report  of  commission- 
ers as  to  manner  of  crossing  of  a  railroad 
by  an  interurban  electric  railway  as  con- 
strued in  connection  with  the  street  Inter- 
urban railway  Act  of  1901,  and  Burns'  Rev. 
St.  1901,  §  5158b  and  following — Wabash  R. 
Co.  V.  Ft.  Wayne  &  S.  W.  Traction  Co.  (Ind.) 
67  N.  E.   674. 

Where  in  proceedings  for  a  right  of  way 
before  the  clerk  before  hearing  and  appoint- 
ment of  commissioners,  no  irreparable  dam- 
age could  result  to  land  owners,  a  writ  of 
prohibition  will  not  lie  to  prevent  clerk  from 
hearing  the  condemnation  and  appointing 
commissioners  under  Code,  §§  1945,  1946 — 
Holly  Shelter  R.  Co.  v.  Newton  (N.  C.)  45  S. 
E.  549.  A  decree,  in  certiorari  to  determine 
validity  of  an  ordinance  giving  a  street  rail- 
w^ay  company  power  to  lay  a  road  on  a 
highway  within  a  township,  holding  such 
ordinance  valid,  w^ill  not  estop  contestant  in 
a  later  new  proceeding  to  urge  invalidity  of 
the  ordinance  for  reasons  not  advanced  or 
considered  in  the  first  proceeding — Mercer 
County  Traction  Co.  v.  United  New  Jersey 
R.  &  Canal  Co.  (N.  J.  Eq.)  54  Atl.  819. 

77.  Grant  to  street  railway  to  use  streets 
or  bridges  within  corporate  limits  cannot  be 
revised  at  suit  of  abutting  owner — Lange  v. 
La  Crosse  &  E.  R.  Co.  (Wis.)  95  N.  W.  952. 
The  question  whether  petitioner's  charter 
was  a  fraud  and  that  It  was  intended  to  be 
operated  merely  as  a  lumber  road  and  not 
for  public  use  cannot  be  considered — Holly 
Shelter  R.  Co.  v,  Newton  (N.  C.)  45  S.  E. 
549. 

78.  Construction  of  railroad  charter  as  to 
right  to  condemn  is  for  the  court — Tennessee 
Cent.  R.  Co.  v.  Campbell,  109  Tenn.  655. 


.  79.  Gen.  Railroad  Law  (Burns'  Rev.  St. 
5158a)  construed  in  connection  with  Burns" 
Rev.  St.  1901,  §  546Se — Wabash  R.  Co.  v.  Ft. 
Wayne  &  S.  W.  Traction  Co.  (Ind.)  67  N. 
E.  674. 

80.  St.  Louis,  etc.,  R.  Co.  v.  Southwestern 
Tel.  Co.   (C.  C.  A.)   121  Fed.  276. 

81.  Where  right  has  been  granted  a  tele- 
phone company  to  take  an  easement  on  rail- 
road right  of  way  for  their  line  in  a  man- 
ner so  as  to  not  interfere  with  the  ordinary 
use  of  the  right  of  way,  the  question  of  the 
necessity  of.  taking  is  first,  whether  there 
will  be  substantial  obstruction  of  the  use  by 
the  railroad  company,  and  whether  the  right 
is  necessary  to  the  use  of  the  telephone  com- 
pany— St.  Louis,  etc.,  R.  Co.  v.  Southwestern 
Tel.  Co.  (C.  C.  A.)   121  Fed.  276. 

82.  Under  St.  c.  110,  art.  2,  §§  4348-4356— 
Barrall  v.  Quick,  24  Ky.  L.  R.  2393,  74  S.  W. 
214. 

83.  Houston  &  S.  R.  Co.  v.  Kansas  City. 
etc.,   R.  Co.,   109  La.   581. 

84.  Under  Pub.  Laws  1893,  p.  Ill,  c.  148,  & 
Code,  §  1945 — Holly  Shelter  R.  Co.  v.  Newton 
(N.   C.)    45   S.   E.   549. 

85.  Taking  railroad  right  of  way  for  tele- 
graph line — Cleveland,  etc.,  R.  Co.  v.  Ohio 
Postal  Tel.  Cable  Co.,  68  Ohio  St.  306. 

86.  Taking  right  of  way  for  gas  pipe  line 
(Burns'  Rev.  St.  1901,  §  5105) — Great  West- 
ern Natural  Gas  «S:  Oil  Co.  v.  Hawkins,  30  Ind. 
App.  557. 

87.  By  street  railway  (Laws  1890,  p.  1108, 
c.  565,  §  90  as  amended  by  Laws  1895,  p.  791, 
c.  933) — Schenectady  R.  Co.  v.  Lyon,"  85  N.  Y. 
Supp.   40. 

88.  Austin  V.  Detroit,  T.  &  A.  A.  R. 
(Mich.)    96   N.   Y.   35. 

89.  Under  Const,  art.  2,  5  33 — State  v.  Su- 
perior Court  (Wash.)  74  Pac.  686. 


1024 


EMINENT  DOMAIN. 


§13 


submission  of  the  issue  to  the  Jury,  waives  defendant's  right  to  question  the  pow- 
er of  the  petitioner  to  condemn.^"  A  propert}'  owner  need  not  defend  against  an 
apparently  separate  proceeding  which  affects  him  only  because  of  an  ulterior  pur- 
pose therein.^^  The  questions  of  necessity  for  a  water  station  and  the  quantity 
of  land  required  are  settled  conclusively  after  condemnation  proceedings  are  reg- 
ularly had,  and  the  owner  has  accepted  the  award.^^  The  extension  of  the  work  of 
a  boom  company  to  a  greater  extent  than  at  first  established  does  not  show  bad 
faith  in  its  selecting  the  place  appropriated  for  its  business.®^  A  decision  of  the 
county  court  confirming  the  decision  of  the  county  commissioners  that  a  proposed 
highway  is  a  public  necessity  is  final.^* 

§  13.  Commissioners  or  other  tribunal  to  assess  damages;  trial  by  jiiry.^^ — 
In  taking  property  for  park  purposes,  an  appraiser  who  had  formerly  assisted  in 
appraising  the  value  of  premises  as  a  member  of  the  real  estate  board  was  disquali- 
fied.®^ Where  an  owner  appeared  before  grade  crossing  commissioners  and  estab- 
lished a  prima  facie  injury  to  her  property  by  a  change  in  the  grade,  the  com- 
mi^''sioners  could  not  produce  witnesses  on  their  own  motion  controverting  such 
evidence  and  determine  that  she  is  not  entitled  to  relief,  but  must  apply  to  the 
supreme  court  for  the  appointment  of  a  commissioner  to  determine  the  issues  of 
fact.®^  Notice  must  be  given  of  a  new  appointment  of  viewers  on  a  street  va- 
cation.** 

A  jury  may  be  had  to  try  damages,®*  but  not  damages  to  business  under  an  act 
limiting  the  right  to  a  jury  to  property,^  nor  under  the  federal  constitution  as 
to  proceedings  under  power  delegated  by  a  state  removed  to  the  federal  court,^ 
nor,  in  some  cases,  where  commissioners  have  already  acted.^     Where  the  law 


90.  Du  Pont  V.  Sanitary  Dlst.,  203  111.  170. 

91.  Where  there  was  no  apparent  connec- 
tion between  two  ordinances,  one  of  which 
authorized  condemnation  of  lands  to  widen 
a  city  street  and  another  a  railroad  com- 
pany already  operating-  two  tracks  in  the 
street  to  lay  two  more  tracks  on  payment  of 
costs  of  condemn  tion  and  improvements 
made  necessary  by  the  alteration  and  the 
additional  tracks,  the  property  owner  could 
not  be  required  to  make  a  defense  in  the 
original  condemnation  by  showing  the  con- 
nection between  the  two  ordinances  and  the 
real  purpose  of  the  railroad  in  the  city  in  the 
proceeding,  and  his  failure  to  object  at  that 
time  on  the  ground  that  such  purpose  was  to 
procure  a  right  of  way  for  the  railroad,  will 
not  prejudice  him — Pennsylvania  Co.  v. 
Bond,   202  111.  95. 

93.  Dillon  v.  Kansas  City,  Ft.  S.  &  M.  R. 
Co.   (Kan.)   74  Pac.  251. 

93.  Samish  River  Boom  Co.  v.  Union  Boom 
Co.   (Wash.)   73  Pac.  670. 

94.  In  re  Mitchell,  85  App.  Div.  (N.  T.) 
277. 

95.  Compensation  of  commissioners  as 
costs,  see  post,  §  17. 

Laws  1890,  p.  1082,  c.  565  as  amended  by 
Laws  1892,  p.  1382,  c.  676,  authorizing  ap- 
pointment of  commissioners  to  determine 
compensation  to  be  paid  by  one  railroad  for 
the  right  to  intersect  another,  is  not  repealed 
by  Laws  1897,  p.  795,  c.  754  as  amended  by 
Laws  1900,  p.  1590,  c.  739 — Oneonta,  etc.,  R. 
Co.  V.  Cooperstown,  etc.,  R.  Co.,  85  App.  Div. 
(N.  Y.)   2S4. 

9G.     State  v.  District  Court,  87  Minn.  268. 

97.  Court  Crossing  Act,  §  12  as  amended 
by  Laws   1898,   p.   605,   c.    345  as   amended  by 


Laws  1890,  p.  473,  c.  255 — People  v.  Adam, 
S3  App.  Div.   (N.  Y.)   620. 

9S.  One  filing  a  petition  for  appointment 
of  viewers  to  award  damages  for  vacation 
of  a  street  and  securing  a  continuance  of  the 
jury  exclusively  for  two  terms  because  of 
doubt  as  to  whether  damages  may  be  recov- 
ered at  law  and  who  then,  after  six  years 
delay,  secures  a  new  jury  under  the  original 
petition,  their  award  assessing  benefits 
against  another  owner  witliout  notice  of  the 
appointment  of  such  new  jury,  is  erroneous 
— In  re  Upsal  Street,  22  Pa.  Super.  Ct.  150. 

99.  Proceedings  by  United  States  to  take 
land  in  Hawaii — United  States  v.  Honolulu 
Plantation  Co.  (C.  C.  A.)  122  Fed.  581.  Dam- 
ages for  crossing  one  railroad  by  another — 
Houston  &  S.  R.  Co.  v.  Kansas  City,  etc.. 
R.  Co.,  109  La.  581. 

1.  Stat.  Mass.  1895,  c.  488.  §  15— Sawyer  v. 
Commonwealth,  182  Mass.  245,  59  L.  R.  A. 
726. 

2.  The  state  procedure  applies — Postal 
Tel.  Cable  Co.  v.  Southern  R.  Co.,  122  Fed. 
156. 

3.  One  whose  property  is  not  taken  or  en- 
tered upon  by  the  action  of  the  water  board 
in  taking  the  water  of  a  river,  or  whose 
property  is  not  adjacent  to  the  river  or 
crossed  by  or  adjacent  to  any  railroad  or 
public  way,  the  location  of  which  is  changed 
by  construction  of  the  water  works,  has  no 
right  to  a  jury  trial  if  dissatisfied  with  dam- 
ages allowed  by  commissioners,  under  Mel - 
ropolitan  Water  Supply  Act  (St.  1895,  p.  573, 
c.  488)  §  14,  construed  in  connection  with  §  IS 
(St.  1895,  p.  575,  0.  488) — Fairbanks  v.  Com- 
monwealth (Mass.)   67  N.  E.  335. 


§  14 


HEARING  ON  DAMAGES. 


1025 


allows  a  second  jury  of  twelve  on  filing  of  exceptions  to  the  verdict  of  the  first 
jury  of  seven  by  the  owners,  the  authorities  and  not  the  owners  must  demand  the 
second  jury.*  A  law  providing  in  part  that  roads  shall  be  laid  out  by  a  jury  of 
free  holders  is  valid."  A  decision  of  the  court  that  the  jury  should  determine 
damages  in  a  railroad  condemnation  authorizes  impaneling  a  jury.* 

§  14.  The  trial,  or  inquest,  and  hearing  on  the  question  of  damages. — Where 
part  of  a  highway  is  discontinued  by  the  railroad  commissioners  under  statutory 
authority,  a  proceeding  may  be  had  to  assess  damages  to  abutting  lands.^  After 
com.plaint  filed  in  the  proper  county  in  condemning  a  right  of  way  for  a  ditch, 
plaintiff  cannot  change  the  place  of  trial  at  his  own  instance  by  recitals  in  the 
summons.®  Wliere  a  railroad  divides  land,  there  is  no  presumption  that  the  owner 
will  not  be  given  the  privilege  of  crossing.®  Where  petitioner  files  a  map  of  lo- 
cation and  alleges  inability  to  agree  on  a  reasonable  purchase  price,  he  must  prove 
such  facts.^**  Eefusal  of  a  demand  to  take  testimony  in  writing  will  not  afiect 
the  award  where  not  renewed  or  insisted  upon.^^  Eefusal  of  the  jury  to  hear  ar- 
guments of  counsel  after  testimony  and  view,  will  not  invalidate  the  award  where 
it  does  not  appear  that  the  party  objecting  insisted  on  argument  or  that  it  would 
have  been  refused  if  he  had  insisted.^^  A  jury  appointed  to  determine  compensa- 
tion for  taking  property  for  public  improvements  cannot  consider  the  question 
whether  the  city  had  acquired  title  by  prescription.^*  Damages  need  be  assessed 
separately,  only  in  highv/ay  proceedings.^*  Whether  a  proceeding  by  a  city  to 
take  land  for  a  park  is  a  continuation  of  a  former  proceeding,  after  reversal  on 
appeal  by  part  of  defendants,  or  a  new  one  based  on  a  new  ordinance,  the  first 
verdict  cannot  be  made  the  basis  for  the  second.^''  Deposit  of  damages  before 
entry  of  judgment  cannot  prejudice  the  landowner.^®  A  plea  is  necessary,  in 
highway  proceedings,  to  admit  evidence,  after  contest  filed,  that  the  county  fenced 
the  part  of  the  land  necessary  to  be  fenced  for  the  highway.^^ 

The  jury  may  make  their  verdict  from  knowledge  gained  on  a  view  as  well 
as  from  opinions  and  conclusions  as  to  the  extent  of  damages  given  by  witnesses,^® 
and  commissioners  are  not  bound  by  the  technical  rules  of  evidence,  or  as  to  their 
source  of  information,  but  may  be  guided  by  their  own  judgment  and  experience 
rather  than  by  the  opinions  of  witnesses.^®     That  witnesses  were  examined  on  the 


4.  Under  Rev.  St.  D.  C.  c.  11.  §§  263-265 — 
Brown  v.  Macfarland,  19  App.  D.  C.  525. 

5.  Rev.  St.  §  3369,  construed  In  connection 
with  Civ.  Code,  art.  2640,  and  those  imme- 
diately preceding — Fuselier  v.  Police  Jury, 
109  La.  551. 

6.  Where  In  condemnation  proceedings  by 
a  railroad  company,  the  court  settled  the  Is- 
sue as  to  whether  a  bona  fide  offer  to  pur- 
chase was  made  by  the  company  before  be- 
ginning the  proceedings  as  being  on  the 
evidence  for  determination  by  the  jury  giv- 
ing the  land  owner  an  opportunity  later  to 
offer  additional  evidence,  the  refusal  of  an- 
other judge  to  hear  such  evidence  will  not 
oust  jurisdiction  to  impanel  the  jury — De- 
troit &  T.  Shore  Line  R.  Co.  v.  Hall  (Mich.) 
94  N.  W.  1066. 

7.  Pub.  St.  1891,  c.  159,  §  18 — Lelghton  v. 
Concord  &  M.  R.  R.   (N.  H.)  55  Atl.  938. 

8.  Code  Civ.  Proc.  §  2210 — State  v.  District 
Court   (Mont.)    74  Pac.   200. 

9.  A  right  of  way  divided  a  stone  quarry 
and  separated  the  water  front  from  the  up- 
land— Seattle  &  M.  R.  Co.  v.  Roeder,  30  Wash. 
244,  70  Pac.  498. 

10.  Code    1883,  o.  49 — Carolina,  etc.,  R.  Co. 

Curr.  Law — 66. 


V.  Pennecarden  Lumber  &  Mfg.  Co.,  132  N.  C. 
644. 

11.  Law  requiring  testimony  to  be  taken 
does  not  require  a  stenographer — Benton 
Harbor  Terminal  R.  Co.  v.  King  (Mich.)  91 
N.   W.    641. 

12.  Benton  Harbor  Terminal  R.  Co.  v. 
King  (Mich.)   91  N.  W.  641. 

13.  4  Starr  &  C.  Ann.  St.  p.  166,  c.  24. 
par.  59 — Thomas  v.  Chicago  (111.)  68  N.  E. 
653. 

14.  Hurd'R  Rev.  St.  1899,  c.  121,  §  46 — 
Hamilton  v.  Commissioners  of  Highways,  203 
111.  269. 

15.  In  re  West  Terrace  Park  (Mo,)  75  S 
W.  973. 

16.  Madera  County  v.  Raymond  Granite 
Co.,  139  Cal.  128,  72  Pac.  915. 

17.  Watkins  v.  Hopkins  County  (Tex.  Civ. 
App.)  72  S.  W.  872. 

IS.  Seattle  &  M.  R.  Co.  v.  Roeder,  30 
Wash.  244,  70  Pac.  498;  Groves,  etc.,  R.  Co.  v. 
Herman  (111.)  69  N.  B.  36;  Petzel  v.  Chicago 
&  N.  W.  R.  Co.,  103  111.  App.  210.  But  they 
cannot  disregard  the  evidence  and  determine 
their  verdict  from  the  view  alone — Du  Pont 
v.  Sanitary  Dist.,  203  111.  170, 


1026 


EMINENT  DOMAIN. 


§  14 


assiimption  that  petitioner  would  build  a  dock  to  take  the  place  of  one  condemned 
did  not  make  a  stipulation  binding  on  it  to  build  such  new  dock,  where  the  stipula- 
tion was  not  recognized  in  the  petition  nor  the  judgment.^" 

Admissihility  of  evidence.^^ — The  evidence  must  be  confined  to  the  market 
value  of  the  property/^  and  cannot  include  mere  offers  for  its  purchase  or  lease,^' 
or  prices  paid  for  it  several  years  before,^*  or  condition  of  the  property  long  be- 
fore appropriation/^  or  the  value  or  extent  of  improvements  upon  land  not  taken 
or  affected,-®  or  the  amount  that  the  owner  and  other  witnesses  would  take  for 
property  similarly  situated,-''  or  the  effect  of  the  improvement  on  property  in 
general.^*     The  general  selling  price  should  be  fixed  from  a  knowledge  of  the  price 


19.  In  re  Town  of  Guilford,  85  App.  Div. 
(N.  Y.)   207. 

20.  Du  Pont  V.  Sanitary  Dlst.,  203  lU.  170. 

21.  Where  renditions  made  by  plaintiff  in 
a  suit  to  recover  damages  to  abutting  prop- 
erty by  a  street  railroad,  of  the  property  for 
taxes  were  admitted  in  evidence,  plaintiff 
could  show  that  the  valuations  were  made  by 
the  assessor — Boyer  v.  St.  Louis,  S.  F.  &  T.  R. 
Co.  (Tex.)  76  S.  W.  441.  Where  it  appeared 
in  an  action  by  a  county  for  damages  for  ap- 
propriation of  a  highway  by  a  railroad 
which  had  built  a  new  road  parallel  to  the 
old,  that  the  railroad  company  had  made  ex- 
cavations adjacent  to  the  new  road  after 
construction,  damages  may  be  allowed  for 
such  injury  even  though  the  pleadings  did 
not  authorize  a  recovery  on  that  ground, 
the  jury  being  liable  to  consider  such  evi- 
dence without  an  instruction — St.  Louis,  S. 
F.  &  T.  R.  Co.  v.  Grayson  County  (Tex.  Civ. 
.\pp.)  73  S.  W.  64.  In  recovery  of  damages 
for  land  taken  for  a  town  way,  evidence  as 
to  condition  of  a  side  walk  immediately  in 
front  of  the  premises  before  and  after  tak- 
ing may  be  given,  especially  where  limited 
to  description  of  the  premises  and  for  that 
purpose  (Pub.  St.  c,  49.  §§  79-105) — Carraher 
V.  Inhabitants  of  Revere,  182  Mass.  427. 
Where  a  land  owner  claimed  as  a  part  of 
damages  by  condemnation  by  a  city  of  a 
right  of  way  through  land  to  make  a  water 
way  to  carry  waters  of  a  brook  that  he  had 
been  deprived  of  the  right  to  shift  the  bed 
of  the  brook  so  as  to  increase  the  cellar 
room  of  his  building,  evidence  as  to  the  ex- 
tent of  such  damage  did  not  prejudice  the 
city,  where  the  court  had  found  that  it  was 
not  proved  with  reasonable  certainty  and  as- 
sessed only  nominal  damages;  the  land  own- 
er may  show  that  for  years  the  flow  of  a 
brook  had  increased  to  more  than  its  former 
or  natural  flow  because  of  erection  of  a  num- 
ber of  mills  on  the  water  shed,  where  the 
court  had  found  that  the  conduit  through 
which  the  brook  flowed  was  large  enough  to 
carry  away  all  the  water  at  all  times — 
Brown  v.  Waterbury,  75  Conn.  727. 

In  taking  the  property  and  franchise  of  a 
water  company,  evidence  may  be  heard:  To 
show  the  actual  construction  of  the  plant 
with  proper  allowance  for  depreciation, 
though  this  is  not  conclusive;  to  show  the 
quality  of  water  furnished,  the  services  giv- 
en the  public,  the  fitness  of  the  plant,  the 
source  of  water  supply  to  meet  reasonable 
needs,  present  and  future;  to  show  the  actual 
rates  charged  in  the  past  and  actual  earn- 
ings, the  value  of  such  evidence  depending 
on  the  reasonableness  of  the  rates;  the 
amount  for  which  the  plant  may  be  repro- 


duced though  this  is  not  conclusive  (how- 
ever capitalization  of  the  income  even  at 
reasonable  rates  will  not  suffice  to  show 
present  value  of  the  plant,  though  admis- 
sible)— Kennebec  Water  Dist.  v.  Waterville, 
97   Me.   185. 

22.  Dallas  v.  Taylor  (Tex.  Civ.  App.)  69  S. 
W.  1005;  Kennebec  Water  Dist.  v.  Waterville. 
97  Me.  185;  Chicago,  R.  I.  &  T.  R.  Co.  v.  Doug- 
lass (Tex.  Civ.  App.)  76  S.  W.  449.  Fair 
market  value  before  and  after  improvement 
— Village  of  Barrington  v.  Meyer,  103  111. 
App.  124.  Specific  damages  to  spring  on 
land — Leiby  v.  Clear  Spring  Water  Co.,  205 
Pa.  634;  Seattle  &  M.  R.  Co.  v.  Roeder.  30 
Wash.  244,  70  Pac.  498.  Price  for  which 
lands  are  generally  held  for  sale  In  the  or- 
dinary course  of  business  in  the  neighbor- 
hood— Friday  v.  Pennsylvania  R.  Co.,  204  Pa. 
405. 

23.  Smith  V.  Pennsylvania  R.  Co..  205  Pa. 
645.  Offers  five  years  before  condemnation — 
Eastern  Texas  R.  Co.  v.  Eddings,  30  Tex.  Civ. 
App.  170.  Testimony  of  owner  as  to  offers  to 
lease  or  purchase — Sliarp  v.  United  States.  24 
Sup.  Ct.  114. 

24.  Price  paid  by  owner  seven  years  be- 
fore— Lanquist  v.  Chicago,  200  111.  69.  Evi- 
dence of  what  the  owner  paid  for  two  lots 
sought  to  be  condemned  cannot  be  received 
where  the  owner  bought  them  and  another 
lot  for  a  lump  sum  so  that  the  amount  given 
for  each  lot  could  not  be  determined — Id. 

25.  In  action  by  county  for  damages 
against  a  railroad  company  from  excava- 
tions near  a  new  road  which  the  company 
had  built  parallel  to  the  old  road,  because 
of  its  appropriation  of  the  latter,  testimony 
as  to  the  condition  of  the  old  road  long  be- 
fore appropriation  or  the  new  road  long  aft- 
er completion  is  inadmissible — St.  Louis,  S.  F. 
&  T.  R.  Co.  V.  Grayson  County  (Tex.  Civ. 
App.)  73  S.  W.  64. 

26.  United  States  v.  Honolulu  Plantation 
Co.   (C.  C.  A.)   122  Fed.  581. 

27.  Building  railroad  in  street — Eastern 
Texas  R.  Co.  v.  Scurlock  (Tex.  Civ.  App.)  76 
S.  W.  366. 

28.  Construction  of  railroad — Eastern 
Texas  R.  Co.  v.  Eddings.  30  Tex.  Civ.  App. 
170.  An  opinion  expressed  by  witnesses  that 
any  farm  was  depreciated  in  value  by  loca- 
tion of  a  pipe  line  across  it,  will  not  author- 
ize testimony  that  prices  of  farms  in  general 
in  the  county  had  not  been  affected  by  the 
location  of  pipe  lines  across  them — Trussell 
V.  Western  Pennsylvania  Gas  Co.,  20  Pa- 
Super.  Ct.  423.  Where  an  abutting  owner 
testified  in  a  suit  to  recover  damages  from 
building  of  a  street  railroad  in  front  of  his 
property,    that    his    business    was    Interfeied 


§  14 


HEARING  ON  DAMAGES. 


1027 


of  lands  generally  held  for  sale,  and  at  which  the}^  are  sold  in  the  course  of  or- 
dinary business  in  the  neighborhood.^^  As  to  lands  of  different  sorts,  values  may 
be  placed  on  different  parts  so  divided  in  the  segregate,^"  and  testimony  may  be 
heard  concerning  several  tracts  of  land  jointly,  though  owned  in  severalty  by  dif- 
ferent owners.^^  It  may  be  shoT^Ti  that  a  purchaser  could  not  be  found  in  the 
county.^^  Where  the  court  had  determined  that  the  use  of  the  lands  sought  was 
public,  evidence  to  show  an  intention  of  a  different  use  is  inadmissible.^^  Evidence 
of  general  uses  to  which  property  may  be  put  cannot  be  admitted  to  lessen  damages 
to  the  use  to  which  it  is  put,^*  nor  evidence  that  an  entire  tract  would  sell  more 
advantageously  if  cut  up  into  smaller  tracts.'^  Exposure  of  buildings  to  fire,  as 
increasing  insurance  rates,  ma}^  be  shown,^**  and  increased  expense  in  operation  be- 
cause of  proximity  of  the  improvement,^'^  and  reasonable  probability  of  increased 
value  of  the  property  in  the  future.'*  A  map  showing  largely  imaginary,  though 
possible,  developments  of  the  land,  cannot  be  admitted.'^  A  lease  given  by  oper- 
ators of  a  stone  quarry  to  o^niers,  fixing  a  royalty,  may  be  admitted  to  show  value 
of  the  land  and  leasehold  interest.*" 

Witnesses  familiar  with  the  land  and  improvements,  and  with  actual  sales 
of  land  in  the  vicinity,  may  testify  as  to  damages.*^  Unqualified  witnesses  cannot 
testify  as  to  probable  efficiency  of  an  improvement  to  serve  the  public.*^ 

Sufficiency  of  evidence.*^ — On  taking  land  for  a  right  of  way,  an  instrument 


with  by  operation  of  the  road,  but  on  cross 
examination  testified  to  an  increase  in  his 
business,  proof  of  general  improvement  in 
business  in  the  city  could  not  be  given  in  re- 
buttal— Boyer  v.  St.  Louis,  S.  F.  &  T.  R.  Co. 
(Tex.)   76  S.  W.  441. 

29.  Friday  v.  Pennsylvania  R.  Co.,  204  Pa. 
405. 

30.  Land  consisting:  of  both  tide  and  up- 
lands— Seattle  &  M.  R.  Co.  v.  Roeder,  30 
Wash.   244,   70  Pac.  498. 

31.  Under  Comp.  Laws,  §  6363,  concerning 
condemnation  by  Union  Depot  Companies — 
Benton  Harbor  Terminal  R.  Co.  v.  King 
(Mich.)   91  N.  W.  641. 

32.  Taking  part  of  stone  quarry — Seattle 
&  M.  R.  Co.  V.  Roeder,  30  "Wash.  244,  70  Pac. 
498. 

33.  Sultan  W.  &  P.  Co.  v.  Weyerhauser 
Timber  Co.,  31  Wash.  558,  72  Pac.  114. 

34.  Evidence  by  a  railroad  company  con- 
structing tracks  in  a  street  In  front  of  cer- 
tain property,  that  the  property  was  in- 
creased in  market  value  for  general  pur- 
poses, cannot  be  admitted  to  lessen  the  dam- 
ages of  the  abutting  owner  whose  evidence 
showed  that  the  property  was  injured  as  a 
homestead  for  which  purpose  he  occupied  it, 
since  the  railroad  company  had  no  right  to 
lessen  its  value  for  home  purposes  without 
compensation — Eastern  Texas  R.  Co.  v.  Scur- 
lock   (Tex.  Civ.  App.)   75  S.  W.  366. 

35.  The  owner  is  entitled  to  the  value  of 
the  land  as  taken,  and  to  any  loss  result- 
ing from  the  taking  to  the  remainder  of  the 
tract  for  uses  to  which  it  was  adapted  or  to 
which  It  had  been  applied — Watkins  v.  Hop- 
kins County  (Tex.  Civ.  App.)   72  S.  W.  872. 

3fi.  Railroad  over  100  feet  from  building 
— North  Arkansas  &  W.  R.  Co.  v.  Cole  (Ark.) 
70  S.  W.  312. 

37.  Blasting  In  quarry  through  which 
railroad  is  built — Seattle  &  M.  R.  Co.  v. 
Roeder,  30  Wash.  244,  70  Pac.  498. 

38.  Suburban  property  as  affected  by  fu- 


ture extension  of  street  car  line — St.  Louis, 
S.  W.  R.  Co.  v.  Hughes  (Tex.  Civ.  App.)  73  S. 
W.  976. 

39.  Sexton  v.  Union  Stock  Yard  &  Transit 
Co.,  200  111.  244. 

40.  Seattle  &  M.  R.  Co.  v.  Roeder,  30 
Wash.   244,   70  Pac.   498. 

41.  Smith  V.  Pennsylvania  R.  Co.,  i;05  Pa. 
645;  Leiby  v.  Clear  Spring  Water  Co.,  205  Pa. 
634.  They  must  be  acquainted  with  the  mar- 
ket value  of  the  land — Chicago,  R.  I.  &  T.  R. 
Co.  V.  Douglass  (Tex.  Civ.  App.)  76  S.  W.  449. 

42.  Witness  without  special  knowledge 
who  had  not  investigated  a  proposed  sewer 
system — Chicago  &  M.  Elec.  R.  Co.  v.  Mawman 
(111.)    69   N.   E.    66.     See,   also.   Evidence,   §   9. 

43.  In  re  Town  of  Guilford,  85  App.  Div. 
(N.  Y.)  207.  To  show  damage  to  lands  not 
taken  In  condemnation  for  a  street — Miller 
V.  Sterling,  198  111.  523. 

In  action  to  determine  conflicting  claims 
to  award  for  land  taken  for  a  street  to  show 
that  part  of  the  land  had  previously  been 
dedicated  as  a  street  so  that  defendant  had 
no  right  to  compensation — Gardiner  v.  Bal- 
timore. 96  Md.  361.  To  show  that  a  building 
had  been  erected  before  establishment  of 
grade  of  a  street  on  which  it  abutted,  so  as 
to  entitle  the  owner  to  damages  by  the 
grading  of  the  street  In  accordance  with  es- 
tablished plan — In  re  City  of  New  York,  78 
App.  Div.  (N.  Y.)  355.  Evidence  in  proceed- 
ings to  condemn  a  turnpike  road  In  connec- 
tion with  the  fact  that  a  certain  par  value 
of  Its  stock  was  selling  at  that  price  at  time 
of  condemnation,  to  show  that  such  price 
was  just  compensation  for  the  property  (St. 
§  4748B) — Richmond  &  L.  Turnpike  Road 
Co.  V.  Madison  County  Fiscal  Ct.,  24  Ky.  L. 
R.   1260,  70   S.  W.   1044. 

Proof  to  estop  land  owners  from  recover- 
ing for  a  change  of  grade  producing  injury 
to  buildings  fronting  on  a  street,  must  be 
clear  and  conclusive  as  to  existence  of  facts 
charging    them    with    notice    of    the    inten- 


1038 


EMINENT  DOMAIN. 


§  14 


conveying  a  right  of  way  to  the  company  on  certain  compensation,  as  liqnidated 
damages,  obtained  with  a  view  to  constructing  the  road  without  binding  the  com- 
pany, and  on  which  it  entered  and  took  the  land,  is  conclusive  as  to  the  amount 
of  damages/*  Testimony  of  a  witness  as  to  value  of  property  cannot  be  given 
great  weight  merely  because  he  is  walling  to  purchase  it.*" 

Instructions.*^ — The  jury  may  be  instructed  as  to  the  interest  acquired  by  the 


tlon  to  regulate  and  change  such  grade — 
In  re  City  of  New  York.  84  App.  Div.  (N. 
T.)    525. 

Evidence  in  a  proceeding  to  take  land  ad- 
Joining  a  river  for  railroad  purposes  that 
when  the  water  rose  high  enough  in  the 
river  to  overflow  an  embankment  which 
was  intended  to  be  erected  by  a  railroad 
company,  it  w^ould  wash  out  defendant's 
lands  not  taken,  is  speculative  and  insuffi- 
cient to  support  a  verdict  for  damages  to 
such  land  where  evidence  of  experts  was 
undisputed  that  the  current  of  water  would 
be  checked  in  flowing  over  the  embank- 
ment by  back  water  on  the  lands  not  taken 
so  that  no  washout  would  result — St.  Louis, 
I.  M.  &  S.  R.  Co.  V.  Vaughan  (Ark.)  72  S.  W. 
675. 

Where  it  appeared  that  commissioners  had 
awarded  a  certain  amount  to  a  hospital  as 
damages  from  lowering  the  grade  of  an  ad- 
Joining  street,  that  access  to  the  hospital 
was  obtained  from  another  street  already 
graded,  and  to  a  certain  degree  over  land 
fronting  on  street  to  be  graded,  and  the 
only  evidence  was  the  testimony  of  an  ex- 
pert that  it  would  cost  a  certain  amount  to 
lower  the  building,  it  was  apparent  that  the 
amount  awarded  was  based  on  an  erroneous 
principle  or  was  v/ithout  foundation  though 
substantial  damage  was  done  to  the  build- 
ings. The  construction  of  New  York  Con- 
solidation Act,  §  978  (Laws  1882.  c.  410)  and 
Greater  New  York  Charter,  §§  980,  988  (Laws 
1901,  c.  466) — In  re  City  of  New  York,  81 
App.  Div.    (N.  Y.)    215. 

44.  Chicago,  R.  I.  &  T.  R.  Co.  v.  Douglass 
(Tex.  Civ.  App.)    76   S.  W.   449. 

45.  Friday  v.  Pennsylvania  R.  Co.,  204 
Pa.    405. 

46.  An  instruction  in  a  proceeding  to 
take  part  of  a  stone  quarry,  which  was  such 
that  the  jury  could  not  assume  that  the 
amount  of  rental  paid  at  the  time  of  trial 
would  be  the  fair  rental  value  for  the  fu- 
ture, cannot  be  given — Seattle  &  M.  R.  Co. 
v.  Roeder,  30  Wash.  244,  70  Pac.  498.  An 
instruction  that  damages  must  be  assessed 
relating  to  the  time  of  the  condemnation, 
amounts  to  an  instruction  that  relation  must 
be  had  to  the  time  of  the  filing  of  the  in- 
strument of  appropriation — Muncie  Natural 
Gas  Co.  V.  Allison  (Ind.  App.)  67  N.  E.  111. 
Where  the  jury  were  permitted  to  view 
premises  sought  for  a  railr  id  right  of  way 
and  were  charged  that  the  view  was  to  al- 
low them  to  obtain  a  more  intelligent  idea 
of  the  property  and  that  they  might  con- 
sider their  observation  together  with  the 
testimony,  rejecting  what  they  believed  from 
their  view  to  be  false,  and  in  case  the  evi- 
dence was  conflicting  to  resort  to  knowledge 
gained  bv  the  view  as  determining  the  ver- 
dict, and  that  the  testimony  of  any  witness 
If  false  might  be  disregnrded  entirely  un- 
less corroborated  by  credible  evidence,  tht* 
Instruction   amounted  only   to   a  charge   that 


if  there  was  a  conflict  in  the  testimony  they 
might  resort  to  the  evidence  of  their  ov/n 
senses  in  order  to  settle  the  damages — Se- 
attle &  M.  R.  Co.  V.  Roeder,  30  Wash.  244,  7f 
Pac.  498. 

Sutlioieucy  of  particular  Instructions. 
An  instruction  in  proceedings  to  take  land 
for  a  private  pass  v/ay  failing  to  state  the 
quantity  of  land  required,  is  not  defective 
where  the  jury  knew  fully  the  amount  of 
land  necessary — Barrall  v.  Quick,  24  Ky.  L. 
R.  2393,  74  S.  W.  214.  An  instruction  stat- 
ing that  the  jury  were  not  bound  to  believe 
witnesses  unless  worthy  of  credit  but  might 
disregard  the  testimony  if  tliey  believed 
from  their  view  and  all  the  evidence  that 
it  was  not  true,  was  wrong — Du  Pont  v. 
Sanitary  Dist.,  203  111.  170.  An  instruction 
that  railroads  are  public  necessities  and  that 
such  use  of  land  is  a  public  use,  was  proper, 
where  other  instructions  gave  the  jury  the 
question  whether  it  was  necessary  to  take 
the  land  for  a  public  use — Detroit  &  T. 
Shore  Line  R.  Co.  v.  Hall  (Mich.)  94  N.  W. 
1066.  The  appropriating  party  in  an  action 
for  damages  by  the  unlawful  grading  of  a 
street,  is  not  prejudiced  by  the  introduction 
in  the  case  of  an  incorrect  rule  of  damages, 
where  the  rule  tended  rather  to  diminish 
the  recovery  than  increase  it — Friedrich  v. 
Milwaukee  (Wis.)  95  N.  W.  126.  An  instruc- 
tion that  the  jury  should  give  the  value  of 
all  the  land  to  the  owner  did  not  exclude 
damages  for  anything  on  or  under  the  land 
or  damages  resulting  to  other  land,  w^here 
other  instructions  state  that  the  value  v.'as 
its  worth  in  consideration  of  any  injury  sus- 
tained to  the  land  remaining — Detroit  &  T. 
Shore  Line  R.  Co.  v.  Hall  (Mich.)  94  N.  W. 
1066.  Where  part  of  a  stone  quarry  in  ac- 
tive operation  and  valuable  only  for  that 
purpose,  was  taken  for  a  railroad  right  of 
way  the  jury  were  properly  instructed  that 
it  might  consider  the  quality  of  stone  it  pro- 
duced and  its  value,  or  the  royalty  given  by 
the  lessee,  in  determining  the  value  of  the 
land,  since  this  did  not  separate  the  value 
of  the  stone  from  that  of  the  land — Seattle 
&  M.  R.  Co.  V.  Roeder,  30  Wash.  244,  70  Pac. 
498.  Where  there  is  evidence  in  locating 
a  highway  that  it  would  be  of  public  utility, 
an  instruction  cannot  be  given  that  benefits 
to  a  land  owner  should  be  considered  to- 
gether with  all  the  other  evidence,  since 
they  should  have  been  instructed  to  con- 
sider only  that  bearing  properly  on  the  is- 
sue of  property  and  benefits — Angell  v. 
Hornbeck  (Ind.  App.)  67  N.  E.  237.  An  In- 
struction in  proceedings  to  take  land  for 
an  approach  to  a  bridge  which  will  injure 
a  levee  of  the  owner,  that  damages  which 
he  may  thereafter  suffer  cannot  be  consid- 
ered if  possible  to  be  prevented  by  proper 
construction  and  maintenance  of  the  work, 
is  not  cured  by  another  instruction  that  the 
jury  should  consider  the  reasonable  cost  of 
a  new  levee,  the  market  value  of  a  steam- 


§  16 


VERDICT  AND  JUDGMENT. 


1029 


taking,*^  and  that  they  "can"  consider  the  purpose  for  which  the  property  is 
used.**  An  erroneous  instruction  on  the  mensure  of  damages  is  not  cured  by  an- 
other giving  a  correct  measure.*^  If  defendant  fears  the  jury  will  give  too  great 
effect  to  certain  testimony,  he  must  guard  against  danger  by  requesting  instruc- 
tions.'^'' 

§  15.  View  of  appropriated  premises^^ — A  view  of  the  premises  sought  to  be 
taken  may  be  had,^-  but  it  is  not  absolutely  required  by  the  federal  constitution.^^ 
In  a  proceeding  to  condemn  land  for  a  turnpike,  a  map  of  the  entire  road  need 
not  be  attached  to  the  report  of  the  jury  of  view,  though  a  map  showing  definitely 
the  points  between  which  the  road  is  condemned  is  necessary,"* 

§  16.  Verdict,  report  or  award;  judgment  thereon,  and  lien  and  enforce- 
ment of  judgments. — A  final  order  nunc  pro  tunc  as  of  the  date  of  entry  of  judg- 
ment takes  effect  from  the  actual  date  though  it  recites  an  earlier  one."'  Adjust- 
ment of  damages  from  construction  of  a  dam  does  not  include  damages  to  riparian 
owners  from  subsequent  impeded  navigation  of  the  river;"*  and  damages  caused  by 
seepage  of  water  from  a  canal  resulting  from  faulty  construction  are  not  included 


boat  landing  at  the  place  and  the  increased 
danger  of  overflow  on  the  owner's  planta- 
tion— Russell  V.  St.  Louis  S.  W.  R.  Co.  (Ark.) 
75  S.  W.  725.  "Where  in  condemnation  pro- 
ceedings to  take  lands  for  a  dock  line,  a 
cross-petition  was  filed  alleging  that  other 
lands  not  described  would  necessarily  be 
taken  and  asking  damages  therefor,  an  in- 
struction that  the  jury  were  not  confined 
to  the  petition  but  could  render  a  verdict  for 
the  value  of  all  lands,  which  under  the  evi- 
dence, would  be  taken  and  requiring  them 
to  consider  the  values  in  evidence  allowing 
the  market  value  of  the  lands  whether  de- 
scribed in  the  petition  or  not,  is  erroneous — 
Du  Pont  v.  Sanitary  Dist.,  203  111.  170.  An 
Instruction  that  the  market  value  of  prop- 
erty taken  cannot  be  reduced  by  benefits 
from  the  construction  or  operation  of  drain- 
age canals  by  petitioner,  but  such  benefits, 
If  any,  must  be  confined  to  property  not 
taken,  and  the  rights  in  the  property  and 
uses  of  which  defendant  would  be  deprived, 
or  the  use,  benefit  and  enjoyment  of  which 
would  be  interfered  with  physically,  is  mis- 
leading and  inconsistent — Id.  On  assess- 
ment of  damages  to  land  by  erection  of  a 
telephone  line,  an  Instruction  is  incorrect 
which  charges  the  jury  that  they  are  not 
bound  to  take  the  opinions  of  any  witness 
though  they  might  adopt  such  opinions  so 
far  as  reasonable  but  that  they  could  con- 
sider their  own  experience  as  to  the  effect 
of  such  structure  on  market  value  of  abut- 
ting property,  and  that  if  such  property  in 
their  opinion  was  affected  thereby  the  com- 
pensation should  be  made  accordingly,  or 
if  otherwise,  the  award  should  be  propor- 
tionately less — De  Gray  v.  New  York  &  N. 
J.  Tel.  Co.,  68  N.  J.  Law,  454.  Where  a 
railroad  company  taking  a  right  of  way 
stipulated  to  build  culverts  to  carry  water 
across  such  right  of  way,  but  did  not  bind 
Itself  not  to  obstruct  the  flow  of  such  wa- 
ter, or  to  carry  it  over  at  any  particular 
place  as  should  be  convenient  to  defendant.^ 
as  the  water  should  naturally  flow,  they 
could  not  object  to  a  charge  permitting  the 
jury  to  consider  any  interference  with  the 
carrying  of  water  over  the  right  of  way  as 
an  element  of  damages,   on  the   ground  that 


such  element  had  been  eliminated — Seattle 
&  M.  R.  Co.  V.  Roeder,  SO  Wash.  244,  70  Pac. 
498.  Where  the  jury  were  permitted  to  view 
premises  sought  to  be  taken  for  a  railroad 
right  of  way  and  were  charged  that  the 
view  was  to  allow  them  to  obtain  a  more 
intelligent  idea  of  the  property  and  that 
they  might  consider  their  observation  to- 
gether with  the  testimony,  rejecting  what 
they  believed  from  their  view  to  be  false, 
and  in  case  the  evidence  was  conflicting  to 
resort  to  knowledge  gained  by  the  view  as 
determining  the  verdict,  and  that  the  testi- 
money  of  any  witness  if  false,  might  be  dis- 
regarded entirely  unless  corroborated  by 
credible  evidence,  amounted  only  to  a  charge 
that  if  there  was  a  conflict  in  the  testimony 
they  might  resort  to  the  evidence  of  their 
own  senses  In  order  to  settle  the  damages 
—Id. 

47.  After  proper  instructions  as  to  ele- 
ments of  damage — Sexton  v.  Union  Stock 
Yard  &  Transit  Co.,  200  111.  244. 

48.  Street  railroad — Boyer  v.  St.  Louis,  S. 
F.   &  T.   R.   Co.    (Tex.)    76  S.  W.   441. 

49.  Chicago  &  M.  Elec.  R.  Co.  v.  Mawman 
(111.)    69  N.   E.   66. 

50.  Carraher  v.  Inhabitants  of  Revere,  182 
Mass.   427. 

51.  Weight  to  be  given  to  knowledge  ob- 
tained on  view  in  making  verdict,  see  ante. 
§  14. 

52.  Petzel  V.  Chicago  &  N.  W.  R.  Co.,  103 
111.  A  pp.  210;  Seattle  &  M.  R.  Co.  v.  Roeder, 
30  Wash.  244,  70  Pac.  498;  Sexton  v.  Union 
Stock  Yard  &  Transit  Co.,  200  III.  244; 
Groves  &  S.  R.  R.  Co.  v.  Herman  (111.)  69  N.  E. 
36;   Du   Pont  v.   Sanitary  Dist.,   203    111.    170. 

53.  23  St.  at  Large,  p.  61,  giving  telegraph 
companies  power  to  take  railroad  rights  of 
way  is  not  in  violation  of  Fed.  Const.  Amend. 
14,  for  failing  to  provide  for  a  view — South 
Carolina  &  G.  R.  Co.  v.  American  Tel.  Co. 
65  S.  C.   459. 

54.  In  re  Factoryville  &  A.  Turnpike  & 
Plank  Road,  19   Pa.  Super.  Ct.  613. 

5.").  The  right  to  make  such  an  order  is 
doubted — Madera  County  v.  Raymond  Gran- 
ite Co.,    139  Cal.   128,   72  Pac.   915. 

.50.  Sultan  Water  &  P.  Co.  v.  Weyer- 
hauser  Timber  Co.,  31  Wash.  558,  72  Pac  114 


1030 


EMINENT  DOMAIN. 


i>   16 


in  an  award  to  the  owner  in  condemnation  of  the  land  for  the  canal."'  Where  an 
award  was  not  paid  hut  petitioner  entered  and  used  the  land  for  the  purpose  for 
which  it  was  condemned,  the  owner  had  a  lien  on  the  land  for  the  award  en- 
forceable in  equity;  and  the  waiver  of  the  lien  by  permitting  the  line  to  be  con- 
structed before  payment,  if  elTective,  was  complete  on  construction  without  regard 
to  lapse  of  time."® 

Sufficiency.'^^ — The  award  of  the  commissioners  is  sufficient  unless  palpable  er- 
ror in  principles  on  which  damages  are  assessed  appears.^*  That  a  judgment 
was  in  personam  and  did  not,  in  form,  require  payment  of  damages,  but  appro- 
priation of  the  land,  will  not  prejudice  the  owner  where  the  damages  were  paid 
into  court.*^  Wliere  a  judgment  provides  that  unless  the  award  is  paid  within  a 
certain  time  the  proceedings  shall  abate  and  the  land  cannot  be  occupied  until  pay- 
ment is  made,  defendant  cannot  object  that  damages  are  assessed  against  the 
drainage  district  instead  of  the  county  though  the  district  is  not  responsible.®^ 
An  order  in  proceedings  to  alter  a  highway  in  a  county  under  township  organiza- 
tion may  properly  provide  for  assessed  damages  to  be  paid  to  owner  before  the 
judge,  or  to  the  township  trustee  if  he  refuses  to  accept.*' 

Validity. — The  report  of  commissioners  must  conform  to  the  statute.'*  A 
report  of  commissioners  against  the  free  judgment  of  their  majority,  but  following 
erroneous  advice  of  the  corporation  counsel  under  stress  of  a  threat  to  have  them 
removed  with  loss  of  fees,  is  void.®**  The  award  of  commissioners  is  not  errone- 
ous because  they  heard  incompetent  evidence,  where  they  viewed  the  property, 
and  damages  awarded  are  established  by  competent  evidence.®'  A  condemnation 
judgment  is  valid  though  payment  is  made  before  it  is  due.®''     A  quotient  ver- 


57.  Turpen  v.  Turlock  Irr.  Dist.  (Cal.)  74 
Pac.  295. 

58.  Where  a  Judgment  was  rendered  when 
the  owner  was  in  the  employ  of  the  rail- 
road company  and  in  easy  circumstances, 
but  the  railroad  company  was  financially  em- 
barrassed and  payment  was  requested  by  the 
owner  several  times  thereafter  from  the 
railroad  company  and  Its  successor,  that  he 
permitted  the  first  company  to  build  the  line 
without  paying  the  award  did  not  waive  his 
equitable  lien — Southern  R.  Co.  V.  Gregg 
(Va.)    43  S.  E.   570. 

59.  An  award,  by  a  Jury  who  viewed  the 
land  and  were  properly  Instructed  as  to  ele- 
ments of  damage,  which  was  in  excess  of 
the  value  fixed  by  plaintiff's  witnesses  but 
less  than  the  value  fixed  by  defendant's  wit- 
nesses,  was  not  necessarily  inadequate — 
Sexton  v.  Union  Stock  Yard  &  Transit  Co., 
200   111.   244. 

Where  appraisers  gave  a  certain  sum  for 
property  taken  for  park  purposes,  in  case 
"buildings  and  improvements"  should  not  be 
removed,  and  another  sum  should  they  be 
removed,  they  did  not  fail  to  value  the  build- 
ings alone  so  as  to  render  the  award  in- 
valid, since  the  word  ''improvements"  had 
reference  to  the  attachments  and  fixtures 
necessarily  constituting  a  part  of  the  build- 
ing and  was  equivalent  to  the  word  "build- 
ing" under  city  charter  arranging  for  as- 
sessment of  damages  in  condemnation  of 
property  for  park  purposes — State  v.  Dis- 
trict Ct.,  87  Minn.  268. 

Where  injury  to  two  lots  Is  alleged  from 
a  railroad  tunnel,  and  it  appears  that  one 
was    Injured    but    the    other    suffered    only 


nominal  damages,  and  damages  were  award- 
ed in  a  lump  sum,  the  entire  judgment  Is 
erroneous  if  it  does  not  show  an  assessment 
as  to  each  lot — Peak  v.  Kings  County  Elec. 
R.   Co.,   81   N.   Y.  Supp.   926. 

60.  In  re  Brookfield,  78  App.  Div.  (N.  Y.) 
520. 

61.  Condemnation  by  municipal  corpora- 
tion— Madera  County  v.  Raymond  Granite 
Co.,  139  Cal.  128,  72  Pac.  915. 

62.  Taking  land  for  drainage  purposes 
(Act  March  19,  1895  [Laws  1895,  p.  142, 
c.  79]) — Lewis  County  v.  Schobey,  31  Wash. 
S57,  71  Pac.  1029. 

63.  Shively  v.   Lankford,   174  Mo.   535. 

64.  Where  a  village  board  of  water  com- 
missioners having  authority  to  purchase  or 
condemn  water  rights  and  property  neces- 
sary for  a  water  supply,  bring  condemna- 
tion to  take  property  of  a  water  works  al- 
ready supplying  the  village,  and  commis- 
sioners appointed  to  make  an  award  refuse 
to  follow  the  statute  as  to  appraisal  of  such 
property  including  good-virill  and  franchises 
of  the  company  at  full  value,  and  determine 
such  value  as  provided  by  a  contract  be- 
tween the  village  and  the  water  works  com- 
pany, void  because  ultra  vires,  a  new  ap- 
praisal will  be  ordered  before  new  commis- 
sioners— In  re  Board  of  Water  Com'rs  (N. 
Y.)    68  N.  E.  348. 

65.  Taking  land  for  street — In  re  City 
of  New  York,  83  N.  Y.  Supp.  1081. 

66.  Change  of  street  grade — In  re  Co- 
mesky,  83  App.  Div.   (N.  Y.)   137. 

67.  Code  Civ.  Proc.  §  1251 — Madera  Coun- 
ty V.  Raymond  Granite  Co.,  139  Cal.  128,  72 
Pac.  916, 


§  16 


VERDICT  AND  JUDGMENT. 


1031 


diet  as  to  damages  is  not  void  in  the  absence  of  a  binding  agreement  by  the  jury 
to  accept  it.*^ 

Effect  or  conclusiveness.^^ — The  judgment  is  conclusive  as  to  successors  in 
property  to  petitioner/"  but  it  is  not  a  bar  to  a  subsequent  action  for  damages 
for  faulty  construction  of  the  improvement."  The  finding  of  commissioners  as 
to  value  of  land  taken  for  railroad  terminal  purposes  and  benefits  is  conclu- 
sive." Commissioners  who  dismissed  a  claim  by  a  landowner  for  want  of  juris- 
diction through  mistake  or  inadvertence  cannot  reopen  their  decision.^^  Where 
there  was  a  settlement  by  the  parties,  a  decree  entered  by  consent,  giving  an 
easement  for  the  right  of  way  as  described,  had  the  same  eft'ect  as  a  deed  of  the 
right  of  way.^*  A  stipulation  signed  by  the  attorney  for  petitioner,  requiring 
the  latter  to  build  a  new  dock  on  real  estate  remaining  after  land  is  taken  for 
dock  purposes  according  to  specifications,  will  not  bind  the  petitioner,  where  the 
judgment  did  not  mention  the  stipulation.'^' 


68.  The  verdict  Is  properly  regarded  as 
not  arrived  at  by  chance  where  six  or  eight 
Jurors  file  affidavits  that  they  had  regarded 
the  evidence  and  the  Instructions  merely, 
and  five  affidavits  stating  that  while  a  quo- 
tient estimate  was  made  there  was  no  agree- 
ment for  its  acceptance;  an  affidavit  by  a 
right  of  way  agent  of  the  railroad  that  the 
quotient  verdict  was  adopted  by  previous 
agreement,  will  be  presumed  to  be  on  infor- 
mation alone  and  incompetent,  where  it  does 
not  disclose  whether  on  knowledge  or  in- 
formation— Groves  &  S.  R.  R.  Co.  v.  Her- 
man (111.)   69  N.  E.  36. 

69.  A  finding  that  damages  were  assessed 
by  taking  into  consideration  the  existence  of 
the  brook  taken  by  a  city  for  a.  waterway, 
and  its  walls,  and  the  extent  to  which  they 
affected  the  value  of  the  land  taken,  did 
not  support  a  claim  that  the  land  covered 
by  the  side  walls  of  the  old  water  way  was 
regarded  by  the  court  as  unincumbered — 
Brown  v.  Waterbury,  75  Conn.  727.  Where 
In  proceedings  to  open  a  street  a  city  desig- 
nates a  person  in  possession  of  property  as 
Its  owner  and  damages  are  awarded  by  the 
Jury  to  him,  and  It  appears  in  the  proof  that 
he  purchased  such  property  before  the  day 
of  dedication  of  the  street,  the  city  after  sev- 
eral years  cannot  deny  title  In  him  and  claim 
that  the  grantor,  by  signing  the  dedication, 
bound  him  or  persons  claiming  under  him, 
especially  where  It  appears  that  such  signing 
was  done  generally  and  without  naming  a  spe- 
cific portion  of  the  property — Toledo  v.  Weber, 
23  Ohio  Circ.  R.  564.  A  judgment  in  condem- 
nation under  statutes  allowing  a  municipal- 
ity to  obtain  land  as  provided  by  general 
statutes,  to  convey  it  to  the  United  States 
for  naval  purposes,  which  general  statute 
relates  to  condemnation  proceedings  for 
such  purpose,  and  the  award  of  damages 
therefor,  which  were  paid  to  and  accepted 
by  the  owner  without  appearing  or  taking 
In  appeal,  Is  res  Judicata  in  an  action  against 
one  holding  the  land  for  the  U.  S.  for  Its 
recovery  on  account  of  the  unconstitution- 
ality of  the  statute  authorizing  the  proceed- 
ings bj'  one  claiming  title  through  such 
owner — Branch  v.  Lewerenz,  75  Conn.  319. 
Where  the  common  council  of  the  city 
brought  proceedings  to  condemn  property 
for  street  purposes  under  laws  In  force  and 
the  proceedings  were  pending  on  appeal 
when  another  law  became  effective  as  to 
the  city  transferrins  to  the  board  of  public 


works  the  authority  to  condemn  property 
but  providing  that  proceedings  begun  be- 
fore its  passage  should  be  carried  forward 
by  the  proper  department,  and  placing  on 
the  city  attorney  the  duty  to  apppear  in  all 
appeals  concerning  the  city,  it  will  be  as- 
sumed that  he  was  discharging  his  duty  and 
acting  with  full  authority  in  asking  for  a 
judgment  on  the  verdict  in  the  appeal  over 
the  objections  of  the  property  owner,  and 
the  judgment  will  bind  the  city — Heinl  v, 
Terre  Haute   (Ind.)   66  N.  E.  450. 

70.  Where  one  railroad  company  failed  to 
present  to  the  commissioners  a  claim  for 
damages  for  establishing  a  highway  across 
its  right  of  way,  another  company  succeed- 
ing to  its  rights,  franchise  and  property 
after  the  final  order  establishing  and  open- 
ing the  highway,  cannot  show  on  mandamus 
to  compel  it  to  build  the  highway  crossing, 
that  it  will  be  compelled  to  expend  consid- 
erable funds  in  building  such  crossing, 
since  ample  opportunity  was  given  for  the 
adjustment  of  claims  in  the  proceedings  for 
location  of  the  highway — Baltimore  &  O.  S. 
W.  R.  Co.  v.  State,   159  Ind.   510. 

71.  A  Judgment  in  proceedings  by  a  sani- 
tary district  to  take  land  for  a  channel  to 
divert  a  river  in  which  plaintiff  joined  with 
other  joint  owners  of  a  tract  cut  by  the 
channel  and  which  included  a  portion  after- 
ward put  in  crops  by  him,  in  a  cross  peti- 
tion alleging  that  the  tract  constituted  an 
entire  dairy  farm  and  asking  damages  for 
injuries  to  it,  and  for  loss  of  shipping  fa- 
cilities which  did  not  appear  to  have  been 
recovered.  Is  not  a  bar  to  his  recovery  in 
an  action  against  a  district  for  damages 
from  an  overflow,  because  of  negligent  con- 
struction of  the  channel,  where  it  did  not 
appear  that  an  overflow  would  have  result- 
ed had  the  channel  been  constructed  accord- 
ing to  specifications  exhibited  in  the  con- 
demnation proceedings,  nor  whether  It  was 
built  according  to  such  plans — Sanitary  Dlst. 
v.   Ray.   199   111.   63. 

72.  Under  Code,  c.  49,  §§  1945,  1946 — South- 
port,  W.  &  D.  R.  Co.  v.  Owners  of  Piatt 
Land   (N.  C.)   45  S.  E.  589. 

73.  Assessment  of  damages  for  change  of 
grade — People  v.  Leonard,  87  App.  Dlv.  (N. 
T.)   269. 

74.  Chicago,  M.  &  St.  P.  R.  Co.  v.  Snyder 
(Iowa)   95  N.  W,  183. 

75.  Du  Pont  V.  Sanitary  Dlst.,  203  lU.  170. 


1032 


EMINENT  DOMAIN. 


§  17 


§  17.  Costs  and  expenses.""^ — Assessors  cannot  allow  a  prevailing  party  on 
hearing  to  tax  as  costs  sums  voluntarily  paid  by  him  as  compensation  for  their 
services;  nor  the  amount  paid  under  an  agreement  between  counsel  for  hiring 
a  stenographer;"  and  commissioners  cannot  receive  compensation  for  days  when 
nothing  was  accomplished  at  their  meetings  though  their  failure  resulted  from 
acts  of  the  corporation  counsel."  A  petitioner  is  liable  for  court  costs  and  at- 
torney's fees  for  defendant,  on  refusal  to  pay  the  award."  The  general  statute 
relating  to  costs  where  the  recovery  exceeds  the  amount  offered  before  trial  ap- 
plies to  condemnation  proceedings.^"  Where  it  appears,  in  proceedings  to  locate 
a  highway,  that  the  county  has  fenced  such  land,  in  considering  the  costs,  the 
expense  of  fencing  should  be  added  to  the  award,  and  if  the  sum  is  greater  than 
the  amount  fixed  by  commissioners,  the  landowner  may  recover  costs.*^  After 
dismissal  of  proceedings,  a  city  is  not  liable  for  attorney's  fees  in  defense  unless 
it  wrongfully  and  needlessly  continued  the  proceedings  while  able  to  have  them 
dismissed.^^  "Wlien  plaintiif  seeks  to  discontinue  the  proceedings  before  appoint- 
ment of  commissioners,  the  landowner  cannot  compel  such  appointment  so  as  to 
obtain  his  expenses.*'  An  allowance  for  costs  previous  to  appointment  of  com- 
missioners in  charge  of  a  street  grade  is  discretionary  and  cannot  be  taxed  by  the 
clerk.**     The  costs  in  proceedings  for  construction  of   drains  must  be  assessed 


76.  Construction  of  various  statutes  as 
to  costs  and  expenses.  Laws  1896,  c.  393, 
providing  that  in  condemnation  by  the  city 
of  New  York,  the  corporation  counsel  shall 
furnish  a  clerk  to  the  commissioners,  is 
not  impliedly  repealed  though  omitted  from 
New  York  Charter  of  1897,  and  commission- 
ers are  not  authorized  to  appoint  a  clerk 
where  furnished  one  by  the  corporation 
counsel— In  re  Board  of  Public  Improve- 
ment. 77  App.  Div.  (N.  Y.)  351.  Kurd's  Rev. 
St.  1S99,  p.  839,  c.  47,  §  10,  requiring  the 
court  to  make  an  order  on  dismissal  of  con- 
demnation proceedings  by  petition  before 
entry  of  final  order  or  failure  to  make  pay- 
ments within  the  time  named,  for  payment 
of  costs,  expenses  and  attorney's  fees  by  the 
petitioner  as  may  seem  just,  does  not  apply 
to  proceedings  under  Act  July  1,  1897,  as 
amended  by  Laws  1901,  p.  117— Rieker  v. 
Danville  (111.)  68  N.  E.  403.  Code  Civ.  Proc. 
{  3372.  providing  that  if  compensation 
awarded  by  the  commissioner  exceeds  the 
offer  of  petitioner  for  the  property,  the 
court  in  Its  final  order  shall  direct  defend- 
ant to  recover  costs,  as  allowed  in  the  su- 
preme court,  including  those  for  proceeding 
before  and  after  notice  of  trial,  refers  to 
trial  before  appointment  of  commissioners 
and  the  land  owner  Is  not  entitled  to  costs 
In  proceedings  before  the  commissioners  as 
though  a  trial  had  been  had— In  re  Brooklyn 
Union  El.  R.  Co..  82  App.  Dlv.  (N.  Y.)  567. 
A  provision  In  a  city  charter  that  if  the 
award  of  appraisers  of  land  taken  for  park 
purposes  should  be  set  aside,  the  court  may 
recommit  the  matter  to  the  same  appraisers 
or  appoint  new  ones,  allowing  reasonable 
compensation  for  services  and  award  of 
costs  Including  such  compensation.  Is  not 
unconstitutional  as  imposing  undue  hard- 
ship on  a  party  appealing,  but  merely  re- 
lates to  costs  and  disbursements  connected 
with  the  trial— State  v.  District  Ct.,  87  Minn. 
268  The  charter  provision  for  costs  in  the 
Act  of  1876.  c.  198,  giving  petitioner  the 
right  to  abandon  condemnation  proceedings 


after  final  order,  not  having  been  adopted  In 
§  3374  of  the  Code  passing  in  1290.  it  can- 
not be  held  that  costs  and  expenses  of  the 
owner  may  be  included  in  the  order  of  dis- 
continuance but  plaintiff  is  entitled  to  an 
order  giving  leave  to  discontinue  on  pay- 
ment of  taxable  costs  of  parties  appearing, 
and  of  motions,  and  compensation  of  a 
guardian  ad  litem  of  Infant  defendant,  to 
be  fixed  under  a  rule  of  court  relative  to 
such  compensation,  opportunity  being  given 
plaintiff  to  file  answering  affidavits  (Code, 
§  3374  and  Laws  1876,  c.  198,  amending  Laws 
1S50,  c.  140.  §  18) — Onondaga  County  v. 
White,   38  Misc.    (N.  Y.)    587. 

77.  Rev.  Laws,  c.  165,  §  54 — Boston  Belt- 
ing Co.  V.  Boston,  183  Mass.  254. 

78.  In  re  City  of  New  York,  77  App.  Dlv. 
(N.  Y.)    433. 

79.  Local  Imp.  Act,  §  94,  as  amended  by 
Laws  1901,  p.  117 — Rieker  v.  Danville  (111.) 
68   N.  E.   403. 

80.  A  landowner  may  recover  the  same 
amount  of  costs  that  defendant  may  recover 
in  proceedings  before  notice  of  trial,  where 
compensation  awarded  by  the  commissioner 
exceeds  the  amount  in  the  offer  to  purchase 
with  interest  from  the  time  offer  was  made, 
where  the  land  owner  succeeded  in  the  su- 
preme court  after  trial  (Code  Civ.  Proc.  | 
3251  construed  In  connection  with  §  3372)  — 
In  re  Brooklyn  Union  El.  R.  Co.  (N.  Y.)  68 
N.   E.    249. 

81.  Watklns  v.  Hopkins  County  (Tex. 
Civ.  App.)    72   S.  "W.  872. 

82.  St.  Louis  City  Charter,  art.  6,  §  9,  au- 
thorizing dismissal  or  withdrawal  of  pro- 
ceedings by  the  city  at  any  time  before  final 
Judgment  on  payment  o2  costs — Lester  Real 
Estate  Co.  v.  St.  Louis,  170  Mo.  31. 

83.  Onondaga  County  v.  White,  38  Misa 
(N.  Y.)   587. 

84.  Laws  1897.  p.  420,  c.  414  (Code  Civ. 
Proc.  §  3420) — Bley  v.  Hamburg,  84  App.  Dlv. 

(N.  Y.)   23. 


§  IS 


REVIEW. 


1U33 


against  the  drainage  district  instead  of  the  county,  though  the  latter  is  the  nom- 
inal party.®'^  An  order  reversing  the  proceedings  on  appeal  with  costs  as  in  an 
action  entitles  appellant  to  tax  costs  including  disbursements.^*  On  appeal,  at- 
torne/s  fees  cannot  be  taxed  and  apportioned  as  part  of  the  costs  between  the 
parties,  where  the  verdict  was  much  smaller  than  the  commissioner's  award,*^  and 
costs  in  the  circuit  court  must  be  taxed  against  appellant.^^  Where  appeal  is  dis- 
missed by  stipulation  on  terms  favorable  to  tlie  landovmer  without  mention  of 
costs,  they  should  be  taxed  against  the  company.^^  Affidavits  by  commissioners 
for  allowance  of  fees  and  expenses  must  be  specific  and  certain.^" 

§  18.  Review  of  condemnation  proceedings.^^ — If  on  appeal  by  a  mortgao-ee 
to  the  district  court,  the  landowner  is  not  brought  in,  the  corporation  petitioner 
may  bring  him  in  if  necessary  to  protect  his  rights.^^  ^j^  award  will  not  be  set 
aside  for  instructions  which  do  not  prejudice  the  petitioner,  where  within  the 
range  of  testimony." 

Right  to  appeal.  Decisions  reviewable. — Particular  statutes  allowing  appeal 
must  be  strictly  construed.®*  The  judgment  appealed  from  must  be  final.®"  A 
mortgagee  who  appeared  may  appeal  from  the  award  independently  of  the  own- 
er, and  his  right  is  not  forfeited  or  suspended  by  filing  a  claim  against  the  mort- 
gagor's estate.®*  An  appeal  will  lie  from  an  order  of  the  special  term  of  the 
supreme  court  of  New  York  setting  aside  an  award  of  commissioners.®^  A  tax- 
payer or  citizen,  showing  no  special  injury  different  from  that  of  the  general  pub- 


85.  Act  March  19,  1895  (Laws  1895,  p.  142, 
c.  79) — Lewis  County  v.  Schobey,  31  Wash. 
357.  71  Pac.   1029. 

86.  Taking  land  for  an  approach  to  a 
bridge  (Code  Civ.  Proc.  §§  3240,  3256) — In  re 
Dept.  of  PubUc  Works,  78  App.  Div.  (N.  Y.) 
631. 

87.  Wormely  v.  Mason  City  &  Ft.  D.  R. 
Co.    (Iowa)   95  N.  W.  203. 

88.  Appeal  from  county  to  circuit  court 
on  taking  lands  for  private  passway — Bar- 
rail  V.  Quick,  24  Ky.  L.  R.   2393.  74  S.  W.  214. 

89.  Appeal  by  both  parties  from  an  award 
dismissed  on  stipulation  that  the  land  own- 
er should  receive  the  full  award  In  settle- 
ment of  his  claim,  and  that  the  railroad 
company  should  build  a  private  crossing  at 
a  place  to  be  designated  without  any  state- 
ment as  to  costs  and  attorney's  fees  (Code, 
S  2007) — Heath  v.  Mason  City  &  Ft.  D.  R. 
Co.   (Iowa)   94  N.  W.  467. 

00.  Greater  N.  T.  Charter,  §§  998.  999, 
providing  for  the  taxation  of  costs,  fees  and 
expenses  of  such  commissioners — In  re  City 
Of  New  York.  77  App.  Div.  (N.  Y.)  433.  Laws 
1897,  §  713,  regulating  compensation  of  com- 
missioners of  appraisal  in  proceedings  to 
take  real  estate  for  the  water  supply  of  the 
city  of  New  York — In  re  Collis,  80  App.  Div. 
(N.  Y.)   287. 

91.  General  questions  of  appeal,  see  Ap- 
peal  &   Review,    p.    85   et  seq. 

92.  Omaha  Bridge  &  Terminal  R.  Co.  v. 
Reed,  (Neb.)  96  N.  W.  276. 

93.  Groves  &  S.  R.  R.  Co.  v.  Herman  (111.) 
69  N.  E.  36. 

94.  The  Traction  Act  of  1893,  gives  no 
appeal  in  condemnation  from  the  report  of 
commissioners  as  appeal  is  meant  in  §  9  of 
the  Condemnation  Act,  and  companies  or- 
ganized under  the  former  cannot  appeal  un- 
der the  latter — Paterson  &  State  Line  Trac- 
tion   Co.    V.    De    Gray    (N.    J.    Law)    56    Atl. 


250.  Under  Act  May  16,  1891,  P.  L.  75,  giving 
the  right  of  appeal  to  abutting  owners  from 
an  ordinance  opening,  altering  or  Improving 
a  street,  an  appeal  will  not  lie  from  vaca- 
tion— Daughters  of  American  Revolution  v. 
Schenley,  204  Pa.  572.  Comp.  La%vs  1897.  §S 
6248,  6240,  giving  an  appeal  from  commis- 
sioners or  jury  in  condemnation  by  a  railroad 
company,  do  not  authorize  appeal  from  an 
allowance  of  attorney's  fees  to  the  owner — 
Detroit  &  L.  Shore  Line  R.  Co.  v.  Hall  (Mich  ) 
94  N.  W.   1066. 

95.  After  entry  of  Judgment  for  a  right 
of  way  it  is  final  and  appeal  will  lie  though 
damages  are  not  settled — Tennessee  Cent. 
R.  Co.  V.  Campbell,  109  Tenn.  640.  That 
a  plea  not  barred  is  filed  In  proceedings  for 
a  right  of  way  before  the  clerk,  will  not  jus- 
tify an  appeal  from  an  order  of  the  Superior 
Court  directing  the  clerk  to  hear  the  pro- 
ceedings and  appoint  commissioners  (Code,  { 
1946) — Holly  Shelter  R.  Co.  v.  Newton  (N.  C.) 
45  S.  E.  549.  In  proceedings  for  a  right  of 
way  a  determination  on  preliminary  trial  that 
plaintiff  has  the  right  to  condemn  the  land 
for  such  purposes,  is  not  open  to  appeal  un- 
til final  judgment — Tennessee  Cent.  R.  Co.  v. 
Campbell,  109  Tenn.  640.  Where  defendant 
appeared  before  the  clerk,  and  specially  ob- 
jected to  service  of  summons  on  one  defend- 
ant, and  answered  raising  issues  of  fact  ask- 
ing that  the  case  be  transferred  to  the 
Superior  Court  at  term,  and  on  refusal  ap- 
pealed to  the  judge  of  such  court,  his  order 
remanding  the  case  to  clerk  with  directions 
for  hearing  on  ten  days'  notice  was  inter- 
locutory and  no  appeal  would  lie  to  the  Su- 
preme Court — Holly  Shelter  R.  Co.  v.  Newton 
(N.    C.)    45   S.   E.    549. 

90.  Omaha  Bridge  &  Terminal  Co.  v.  Reed 
(Neb.)    92   N.   W.   1021. 

97.  Code  Civ.  Proc.  §  3375 — In  re  Town  of 
Guilford,  85  App.  Div.   (N.  Y.)   207. 


1304 


EMINENT  DOMAIN. 


S  18 


lie  in  highway  proceedings,  cannot  appeal  to  the  supreme  court.*'  Failure  of 
an  owner  to  appear  before  commissioners  and  show  damages  sustained  by  open- 
ing and  grading  of  a  street  will  not  deprive  him  of  damages,  and  if  he  has  any 
not  allowed,  he  may  object  to  confirmation  of  the  report.*"*  In  proceedings  to 
assess  damages  on  a  street  on  pending  appeal  to  the  circuit  court  when  a  certain 
law  became  effective,  the  subsequent  judgment  of  the  court  is  final  and  there  can 
&e  no  further  appeal.* 

Remedy  for  review;  certiorari. — Certiorari  will  not  be  allowed  to  an  abut- 
ting ovraer  whose  land  is  injured  by  a  change  in  location  of  a  highway  authorized 
by  the  board  of  railroad  commissioners,^  nor  to  an  owner  who  acquiesced  in  the 
taking  if  there  is  a  legal  foundation  therefor,^  nor  to  review  the  award  on  taking 
land  for  a  turnpike,*  nor  in  proceedings  to  condemn  rights  of  way  for  ditches." 
The  supreme  court  may  issue  a  writ  of  certiorari  to  review  condemnation  pro- 
ceedings when  no  other  adequate  remedy  is  available."  Where  commissioners,  to 
assess  damages  from  a  change  of  grade,  erroneously  dismissed  a  claim  for  want  of 
jurisdiction,  the  claimant's  remedy  was  not  by  application  for  a  rehearing,  but 
by  certiorari  for  review,  or  motion  to  the  court  to  reopen  the  matter  and  send  it 
back  to  the  commissioners.^  The  question  of  a  third  adequate  remedy  is  imma- 
terial where  certiorari  cannot  be  had  in  proceedings  to  condemn  land  for  a  ditch, 
the  right  of  appeal  being  given.® 

Saving  questions  for  review. — An  objection  that  jurors  were  not  residents  of 
the  county  in  which  the  land  was  situated,®  or  that  persons  who  obtained  a  con- 
veyance of  land  for  a  right  of  way  to  a  railroad  company  were  not  its  agents,*" 
cannot  be  raised  on  appeal  where  not  raised  in  the  court  below.  A  motion  for  a 
new  trial  is  unnecessary  to  review  of  improper  exclusion  of  evidence  as  to  dam- 
ages to  lands  not  named  in  the  petition,**  or  to  review  rulings  on  evidence  to 
which  exceptions  were  reserved  on  trial.**  An  objection  to  a  charge  as  to  the 
measure  of  damages  will  not  lie  where  no  instruction  curing  the  defect  was  offered 
by  appellant  and  the  instruction  he  did  offer  was  similar  to  the  one  given.*^  It 
cannot  be  said  on  appeal  that  there  is  no  evidence  of  public  necessity,**  and  where 
the  petition  alleged  that  petitioner  was  unable  to  acquire  purchase,  it  cannot  be 
said  that  there  was  no  evidence  of  such  inability,*'  where  all  the  evidence  is  not 


08.  Pub.  St.  c.  68,  §  2 — Bennett  v.  Town 
of  Tuftonborough  (N.  H.)  54  Atl.  700. 

99.  In  re  City  of  New  York,  84  App.  Dlv. 
(N.  Y.)   525. 

1.  Various  statutes  construed — Evansvllle 
&  T.  H.  R.  Co.  V.  Terre  Haute  (Ind.)  67  N.  E. 
686. 

2.  There  is  an  ample  remedy  by  appeal — 
Leighton  v.  Concord  &  M.  R.  R.  (N.  H.)  55 
Atl.   938. 

3.  Acquiescence  amounts  to  estoppel — Slo- 
cum  V.  Neptune  Tp.,  68  N.  J.  Law.  595. 

4.  The  appellate  court  cannot  examine  the 
extent  to  which  the  jury  should  have  con- 
sidered the  reduced  value  of  part  of  the  road 
lying  in  one  county,  by  reason  of  the  taking 
of  part  in  another,  since  if  the  company  is 
dissatisfied  with  Its  award  it  may  appeal  to 
the  court  of  common  pleas  under  Act  June  2, 
1887 — In  re  Pactoryville  &  A.  Turnpike  & 
Plank  Road.  19  Pa.  Super.  Ct.  613. 

5.  The  remedy  Is  appeal  to  the  Supreme 
Court  (Code  Civ.  Proc.  §  2214) — State  v.  Dis- 
trict Ct.    (Mont.)    74  Pac.   200. 

6.  For  right  of  way  (Shannon's  Code,  §§ 
4834,  4853,  4854,  6329,  6336) — Tennessee  Cent. 
R.  Co.  V.  Campbell,  109  Tenn.  640.  Right  of 
appeal  is  not  given   (Const,  art.  1,  §  16,  and 


art.   4,  §  4) — State  v.  Superior  Ct..  30  Wash. 
219,    232,    70    Pac.    484. 

7.  People  v.  Leonard,  87  App.  Div.  (N.  Y.) 
269. 

8.  State  V.  District  Ct.  (Mont.)  74  P&c. 
200. 

9.  Benton  Harbor  Terminal  R.  Co.  v. 
King    (Mich.)    91    N,    W.    641. 

10.  Chicago,  R.  I.  &  T.  R.  Co.  v.  Douglass 
(Tex.  Civ.  App.)   76  S.  W.  449. 

11.  2  Ball.  Ann.  Codes  &  St.  §  5056 — Sultan 
Water  &  Power  Co.  v.  Weyerhauser  Timber 
Co.,    31    Wash.    558,    72    Pac.    114. 

12.  Mills'  Ann.  St.  §  1727,  providing  that 
a  motion  for  a  new  trial  is  unnecessary  to 
enable  the  supreme  court  to  review  pro- 
ceedings of  an  inferior  court,  where  errors 
have  been  once  passed  upon  by  such  court 
against  exceptions,  applies  to  appeals  in 
eminent  domain  under  Mills'  Ann.  Code,  §  393, 
allowing  such  appeals  to  be  taken  to  the  su- 
preme court  as  other  appeals  from  the  dis- 
trict court — LolofC  V.  Sterling  (Colo.)  71  Pac. 
1113. 

13.  Board  of  Councilmen  v.  Howard,  25 
Ky.   L.    R.    Ill,   74   S.  W.    703. 

14.  15.  Benton  Harbor  Terminal  R.  Co.  v. 
King    (Mich.)    91   N.  W.   641. 


§  18 


REVIEW. 


1035 


in  the  record.  If  the  record  shows  neither  testimony  nor  a  substitute  therefor, 
but  only  the  award  or  verdict  and  exceptions,  the  order  below  will  be  affirmed." 
Where  the  commissioner's  report  gave  part  of  the  damages  assessed  to  a  tenant 
for  his  leasehold  interest,  the  circuit  court  properly  overruled  exceptions  to  the 
report  where  the  exact  extent  of  his  interest  was  not  shown.^'  On  appeal  by  a 
city  from  an  order  refusing  in  part  to  confirm  the  report  of  commissioners  as  to 
certain  lands  and  referring  the  report  back  to  them  with  directions  to  award  sub- 
stantial damages  to  the  owTiers  thereof  on  a  certain  basis  after  regarding  pri- 
vate but  not  public  easements,  the  owners  could  not  contend  that  such  private 
easements  had  been  abandoned  or  lost  by  adverse  possession.^^ 

Bringing  up  the  cause;  record. — A  landowner  is  not  affected  by  an  appeal 
by  his  mortgagee,  if  no  summons  issued  against  him.*"  An  objection  to  a  require- 
ment in  the  judgment  that  each  party  sliall  pay  its  own  costs  cannot  be  made 
on  appeal  on  the  judgment  roll  alone  ;^"  and  a  recital  of  payment  of  damages  in  the 
final  order  is  conclusive.^*  A  certificate  signed  by  the  trial  judge  bearing  date 
after  notice  of  appeal  and  stipulation  of  counsel  as  to  printing  the  transcript 
is  not  a  part  of  the  judgment  roll.^^ 

Scope  of  review.-^ — The  question  of  public  necessity  of  a  proposed  railroad 
will  not  be  reviewed  on  appeal  from  the  award.^*  Wliether  certain  persons  not  par- 
ties were  entitled  to  damages  will  not  be  considered.^^  On  appeal  by  the  con- 
demning party,  distribution  of  the  award  will  not  be  reviewed.^^  The  question  to  be 
determined  on  appeal  by  a  mortgage  is  the  value  of  his  lien.^^  Wliere  the  appeal 
was  on  the  question  of  damages  for  additional  land  taken  for  a  railroad,  it  will  be 
presumed  that  no  damages  were  awarded  for  the  first  construction.^*  An  award 
by  commissioners  on  both  testimony  and  view  will  be  affirmed  unless  palpably  in- 
correct,^® or  unless  the  commissioners  have  proceeded  on  an  erroneous  basis,  have 
overlooked  material  features,  or  have  been  influenced  by  passion  or  hearsay.^"  An 
award,^*  or  report  of  commissioners,^^  or  the  finding  of  a  chancellor,^^  or  the  ver- 


16.  Macfarland  v,  Byrnes,  19  App.  D.  C. 
531. 

17.  St.   Louis  V.  Abeln,   170  Mo.   318. 

18.  In  re  City  of  New  York,  84  App.  Dlv. 

(N.    Y.)    455. 

19.  Omaha  Bridge  &  Terminal  R.  Co.  v. 
Reed   (Neb.)    96   N.  W.   276. 

20.  21,  22.  Madera  County  v.  Raymond 
Granite  Co.,  139  Cal.  128,  72  Pac.  915. 

23.  Where  in  a  proceeding  to  open  a 
street,  testimony  was  given  to  show  different 
methods  of  grading  as  showing  the  grade 
which  might  ultimately  be  adopted,  and  the 
jury  found  substantial  damages  for  the  re- 
mainder of  the  owner's  land  in  a  general 
verdict,  and  a  special  verdict  holding  dam- 
ages to  be  allowed  only  because  of  estab- 
lishment of  a  future  grade  and  that  if  the 
street  should  be  improved  on  a  grade  which 
would  not  produce  a  cut  of  more  than  5  ft. 
there  would  be  no  damages,  on  review  the 
general  verdict  cannot  be  disregarded  and 
a  holding  made  that  it  is  controlled  by  the 
special  verdict  so  as  to  set  aside  amount 
of  general  verdict  as  to  damages  for  land 
not  taken — Grant  v.  Hyde  Park,  67  Ohio  St. 
166.  Where  a  city  council  brought  proceed- 
ings to  open  a  street  under  laws  in  force  and 
an  appeal  was  pending  when  another  law  be- 
came effective  as  to  the  city,  transferring  to 
the  board  of  public  works  the  authority  to 
condemn  property,  but  providing  that  pro- 
'•eedings    begun    before    its    passage    should 


be  carried  forward  by  the  proper  department, 
and  placing  on  the  city  attorney  the  duty 
to  appear  in  all  appeals  concerning  the  city, 
it  will  be  assumed  that  he  was  discharging 
his  duty  and  acting  with  full  authority  in 
asking  for  judgment  on  the  verdict  in  the 
appeal  over  objections  of  the  property  own- 
er, and  the  judgment  will  bind  the  city — 
Heinl  v.  Terre  Haute   (Ind.)  66  N.  E.  450. 

34.  Detroit  &  L.  Shore  Line  R.  Co.  v.  Hall 
(Mich.)    94  N.  W.   1066. 

25.  Marquette  &  S.  E.  R.  Co.  v.  Longyear 
(Mich.)    94  N.  W.   670. 

2C.  The  city  is  not  interested  In  distribu- 
tion of  damages  for  street  grading — In  re 
City  of  New  York.   81  App.   Div.    (N.   Y.)    215. 

27.  Omaha  Bridge  &  Terminal  R.  Co.  v. 
Reed  (Neb.)   96  N.  W.  276. 

2S.  The  railroad  company  had  already 
taken  a  right  of  way  and  were  seeking  to 
take  land  to  widen  it — Chicago,  M.  &  St.  P. 
R.  Co.  v.  Brink   (S.  D.)  94  N.  W.  422. 

29.  In  re  Collis,   76  App.  Div.    (N.  T.)    368. 

30.  In  re  Town  of  Guilford,  85  App.  Div. 
(N.   Y.)    207. 

31.  Marquette  &  S.  E.  R.  Co.  v.  Longyear 
(Mich.)    94   N.   W.   670. 

33.  Contradicted  by  testimony  of  one  wit- 
ness— St.   Louis  V.   Abeln,   170   Mo.   318. 

33.  Unless  an  erroneous  measure  of  dam- 
ages was  applied — Richmond  &  L.  Turnpike 
Road  Co.  v.  Madison  County  Fiscal  Ct.,  24 
Ky.   L.    R.    1260,    70    S.    W.    1044. 


1036 


EMINENT  DOMAIN. 


§  19A 


diet  of  a  jvLTjy*  on  conflicting  evidence,  "wdll  be  aflSrmed;  especially  where  the 
jury  viewed  the  premises.^'  The  lower  court  cannot  confirm  the  verdict  of  the 
first  jury  of  seven  allowed  under  the  statute,  where  the  property  owners  have 
filed  exceptions  asking  the  verdict  to  be  vacated.^® 

Trud  or  hearing." — Where  the  action  of  the  court  below  influenced  certain 
landowners  to  forego  their  right  to  a  second  jury,  that  right  was  retained  for 
them  on  appeal.^*  A  motion  to  the  court  to  set  aside  an  award  of  commission- 
ers is  not  a  rehearing  on  the  merits  so  that  further  affidavits  as  to  the  value  of 
the  property  may  be  received.^®  Where  a  railroad  company  had  filed  exceptions 
to  proceedings  by  street  railway  to  acquire  crossing  over  its  road  and  has  ap- 
pealed, it  cannot  interfere  with  the  street  railway  and  prevent  the  crossing/* 
On  appeal  from  an  award  for  land  taken  for  a  depot,  evidence  cannot  be  given 
that  the  railroad  o\\'ned  land  adjacent  to  the  land  sought  equally  suitable  for  such 
purpose.*^  On  exceptions  in  the  circuit  court  to  the  report  of  commissioners, 
they  were  properly  allowed  to  testify.**  On  trial  de  novo  on  appeal  from  an  award 
by  commissioners,  the  jury  must  award  damages  on  the  evidence  before  them  with- 
out regard  to  the  former  award.*^ 

Decision  and  determination. — On  appeal,  the  court  cannot  modify  an  ex- 
cessive award  but  must  set  it  aside.**  Where  landowners  appealed  from  an  award 
in  their  favor  to  the  circuit  court,  the  jury  must  of  necessity  find  for  them.*' 
If  property  owners  refuse  a  stipulation  in  an  order  to  set  aside  an  award,  un- 
less they  consent  to  its  reduction,  it  in  legal  effect  sets  aside  the  award.*"  The 
verdict  and  judgment  are  set  aside  by  a  reversal  though  only  part  of  defendant* 
appeal.*^  A  verdict  for  landowners  on  appeal  to  the  circuit  court  must  be  item- 
ized, since  the  statute  and  not  the  jury  fixes  the  costs.**  On  appeal  from  an  or- 
der of  the  special  term  setting  aside  an  award  of  commissioners,  the  appellate 
division  must  determine  on  the  facts  whether  there  should  be  a  re-reference  to 
the  commissioners.*'  After  an  affirmance  of  judgment  for  petitioner,  dismissal 
properly  follows  on  plaintiff's  motion  where  the  appeal  was  on  other  grounds 
than  insufficiency  of  the  award,  and  before  determination  of  the  appeal  plaintiff 
notified  the  other  parties  that  he  would  not  take  the  property  and  would  move 
to  dismiss.*** 

§  19.     Remedy   of  owner   hy  action  or  suit.^^     A.  Actions  for   tort,   dam- 


84.  Seattle  &  M.  R.  Co.  v.  Roeder,  30 
Wash.  244.  70  Pac.   498. 

So.  Lanquist  v.  Chicago.  200  111.  69;  East 
&  W.  I.  R.  Co.  V.  Miller,  201  111.  4la;  Detroit 
&  L.  Shore  Line  R.  Co.  v.  Hall  (Mich.)  94  N. 
W.  1066;  Natchitoches  R.  &  Const.  Co.  v. 
Henry,   109  La.   669. 

3C.  Taking  land  to  widen  a  street;  the 
statutory  requirement  for  a  second  jury  is 
absolute  (Act  Congress  March  3,  1S99.  §  5. 
f^.nd  Rev.  St.  D.  C.  c.  11,  §§  263-265) — Brown  v. 
Macfarland.  19  App.  D.  C.  525. 

87.  Act  May  21,  1895,  governing  aciions 
to  recover  damages  for  appropriations  by 
private  corporations,  giving  the  right  to 
waive  assessments  of  damages  by  viewers, 
and  to  demand  a  jury  view  of  the  premises, 
applies  only  to  actions  brought  directly  to 
recover  damages  without  Interposition  of 
viewers,  and  not  to  cases  arising  by  appeal 
from  the  award  of  viewers — Frazee  v.  Manu- 
facturers' Light  &  Heat  Co.,  20  Pa.  Super.  Ct. 
420. 

38.  Street  extension — Under  Rev.  St.  D.  C. 
c.  11 — Macfarland  v.  Byrnes,  19  App.  D.  C. 
6S1. 


39.  In  re  Town  of  Guilford,  85  App.  Dlv 
(N.   Y.)    207. 

40.  Under  Burns'  Rev.  St.  1901,  S  5468e.  } 
17 — Wabash  R.  Co.  v.  Ft.  Wayne  &  S.  W 
Traction   Co.    (Ind.)    67  N.   E.    674. 

41.  Cane  Belt  R.  Co.  v.  Hughes  (Tex.  Civ 
App.)    72   S.   W.    1020. 

42.  St.  Louis  V.  Abeln,  170  Mo.  318. 

43.  Sharp  v.  United  States,  24  Sup.  Ct 
114. 

44.  Code  Civ.  Proc.  §  3371 — In  re  Town  of 
Guilford.   85  App.   Div.    (N.   Y.)    207. 

45.  Acts  1S97,  c.  19,  p.  22  et  seq. — Board 
of  Levee  Com'rs  v.  Nelms   (Miss.)    34  So.  149. 

46.  In  re  Town  of  Guilford,  85  App.  Div 
(N.  Y.)    207. 

47.  In  re  West  Terrace  Park  (Mo.)  75 
S.  W.   973. 

48.  Acts  1897,  c.  19,  p.  22  et  seq. — Board  of 
Levee  Com'rs  v.   Nelms   (Miss.)   34  So.   149. 

49.  In  re  Town  of  Guilford,  85  App.  Dlv. 
(N.   Y.)    207. 

50.  Pool  V.  Butler    (Cal.)    74   Pac.   444. 

51.  Measure  of  damages  in  action  or  suit 
to  recover  as  well  as  condemnation  pro- 
ceedings, see  ante,  S  6. 


§  19A 


REMEDY  OF  OWNER  BY  ACTION. 


1037 


Kjes,  or  trespass;  recovery  of  property .^^ — ^An  application  by  a  railroad  compauy 
to  take  land  as  property  of  plaintiff  in  trespass  for  entry  of  the  land  before  award 
of  the  appraisers,  and  appeal  therefrom,  cannot  be  consolidated  with  the  tres- 
pass, it  being  no  bar  to  such  action,  nor  are  the  two  proceedings  merged.^'  Writ- 
ten notice  of  injury  is  unnecessary  before  bringing  action  against  a  railroad  com- 
pany for  damages  from  temporary  use  of  a  street.^*  Recovery  for  damages  to 
abutting  property  from  a  railroad  in  a  street  from  noise,  smoke,  and  difficulty 
of  access,  will  not  bar  a  subsequent  action  for  a  change  in  grade  by  the  company 
and  construction  of  a  stone  wall/'  Statutory  bar  of  actions  for  damages  de- 
pends upon  the  particular  statute.'^ 

Right  of  action. — Statutes  prescribing  remedies  for  recovery  of  damages 
must  be  strictly  construed."^  One  who  did  not  appeal  from  a  judgment  and 
award  cannot  sue  for  the  value  of  his  land.°*  A  city  entering  a  private  road  and 
erecting  structures,  partially  destroying  the  owner's  means  of  access  to  his  prop- 
erty without  authority  or  compensation,  must  pay  damages  or  be  compelled  to  re- 
store the  road  to  its  original  condition."'  On  wrongful  appropriation  of  land 
by  a  city,  the  owner  need  not  look  to  a  fund  provided  by  a  certain  statute  in 
recovery  of  damages,  if  it  does  not  contemplate  creation  of  a  fund  for  that  pur- 
pose.^**  An  expressed  intention  by  a  railroad  company  not  to  abandon  a  right 
of  way  is  not  conclusive  evidence  thereof,  but  may  be  considered  in  ejectment 
by  the  owner  together  with  acts  of  the  company.^^  A  declaration  to  recover 
land,  showing  on  its  fact  that  the  railroad  company  had  been  in  actual  occupa- 
tion of  the  land  before  plaintiffs  acquired  title,  is  liable  to  demurrer.^^  Where 
the  legal  title  to  land  owned  by  a  husband  stood  in  his  wife's  name,  a  contract 
by  the  husband  with  a  city  to  waive  damages  for  laying  out  of  a  way,  and  the 


52.  Rights  acquired  by  defendant  on  re- 
covery of  damag-es  as  ■well  as  by  condemna- 
tion, see  post,  §  21. 

A  judgment  in  proceedings  by  a  sanitary 
district  to  take  land  for  a  channel  to  divert 
a  river  in  which  plaintiff  joined  with  other 
joint  owners  of  a  tract  cut  by  the  channel 
and  which  included  a  portion  afterward  put 
in  crops  by  him,  on  a  cross  petition  alleging 
that  the  tract  constituted  an  entire  dairy 
farm  and  asking  damages  for  injuries  to  it, 
and  for  loss  of  shipping  facilities  which  did 
not  appear  to  have  been  recovered,  is  not  a 
bar  to  his  recovery  in  an  action  against  a 
district  for  damages  from  an  overflow  from 
negligent  construction  of  the  channel,  w^here 
it  did  not  appear  that  an  overflow  would 
have  resulted  otherwise,  nor  whether  it  was 
built  according  to  plans  exhibited  on  the 
condemnation — Sanitary  Dist.  of  Chicago  v. 
Ray,   199   111.   63. 

53.  Georgia  R.  &  Banking  Co.  v.  Gardner 
(Ga.)    45   S.   E.   600. 

54.  By  railroad  (Gen.  St.  1902,  §  2020) — 
Knapp  &  C.  Mfg.  Co.  v.  New  York,  N.  H.  &  H. 
R.  Co.   (Conn.)   56  Atl.  512. 

55.  Louisville  &  N.  R.  Co.  v.  Cumnock,  25 
Ky.  L.   R.    1330,  77  S.  W.   933. 

56.  That  an  owner  secures  modification  of 
a  proposed  change  of  street  grade  so  as  to 
cause  less  injury,  will  not  bar  his  right  to 
damages  from  the  actual  change — Klaus  v. 
Jersey  City  (N.  J.  Law)  54  Atl.  220.  Where 
a  land  owner  whose  property  is  taken  for  a 
railroad  right  of  way,  conveys  the  land  to  his 
wife  after  he  is  barred  by  a  two  years'  limi- 
tation, she  has  no  right  of  recovery  against 
the    company    (Acts    1872-73.    c.    75,    &    Acts 


1854-55.  c.  225) — Dargan  v.  Carolina  Cent.  R. 
Co.,  131  N.  C.  623.  Every  day's  temporary  use 
of  a  highway  by  a  railroad  company  while 
changing  a  grade  crossing  without  compen- 
sation to  abutting  owners  is  a  new  trespass 
and  no  bar  to  recovery  arises  for  damage 
suffered  within  three  years  (Gen.  St.  1902,  S 
1115) — Knapp  &  C.  Mfg.  Co.  v.  New  York,  N. 
H.  &  H.  R.  Co.  (Conn.)  56  Atl.  512.  The 
right  to  sue  a  railroad  company  for  dam- 
ages from  construction  and  operation  of 
tracks  in  a  street  in  front  of  property  under 
legislative  and  municipal  authority  is  barred 
after  five  years,  but  an  action  for  damages 
for  such  construction  and  operation  without 
such  authority  is  barred  only  by  the  lb 
years  statute — Klosterman  v.  Chesapeake  & 
O.  R.  Co.,  24  Ky.  L.  R.  1233,  71  S.  W.  6. 

57.  Gen.  St.  p.  2820,  §  71,  giving  a  right 
of  action  to  an  owner  of  a  building  abutting 
upon  a  street  or  highway,  the  grade  of  which 
is  altered  by  a  municipality,  to  recover  dam- 
ages will  not  authorize  an  action  against  a 
village,  villages  not  being  included  in  the 
act — Bellls  v.  Village  of  Flemington  (N.  J. 
Err.   &  App.)    55   Atl.    300. 

58.  Omaha  Bridge  &  Terminal  R.  Co.  v. 
Reed  (Neb.)  96  N.  W.  276.  Private  Laws  1899, 
c.  62,  §  24,  applying  to  condemnation  of  land 
in  Elizabeth  City — Lamb  v.  Elizabeth  City, 
132   N.   C.   194. 

59.  Culver  V.  Tonkers,  80  App.  Div.  (N. 
Y.)    309. 

60.  Comp.  St.  1901.  §  158,  c.  12a — Omaha 
v.   State    (Neb.)    94   N.  W.  979. 

61.  Chicago  &  E.  I.  R.  Co.  v.  Clapp,  201  III 
418. 

62.  King  V.  Southern  R.  Co.,  119  Fed.  1017. 


1038 


EMINENT  DOMAIN. 


§  lyA 


assumption  of  betterments  by  the  city,  will  entitle  the  wife  to  sue  for  damages 
sustained  by  the  husband  through  breach  of  the  contract.*^  If  a  city  appropri- 
ates property  under  statutory  authority  without  pa}Tnent  of  compensation,  the 
owner  must  seek  compensation,  and  cannot  bring  ejectment;®*  nor  can  compen- 
sation be  recovered  in  ejectment  for  land  taken  by  a  railroad  company  under  a 
statute  providing  for  assessment  of  compensation.^^  A  grant  by  ordinance  to  a 
street  railway  company  to  use  streets  or  bridges  within  corporate  limits  is  legis- 
lative so  that  it  cannot  be  revised  by  the  court  on  the  ground  of  inexpediency  at 
suit  of  the  abutting  owner.®®  The  count)'^  may  sue  for  damages  from  appropria- 
tion of  a  highway  by  a  railroad  company.®^  Owners  injured  by  alteration  of  a 
highway  may  sue  in  the  superior  court  for  damages  without  first  applying  for  as- 
sessment of  damages  by  county  commissioners.®*  Filing  a  claim  for  damages  in 
highway  proceedings  which  was  refused,  and  dismissal  of  appeal  therefrom,  will 
not  prevent  an  action  for  damages.®^  One  cannot  sue  for  damages  to  access  by 
street  vacation,  unless  his  property  is  situated  so  as  to  entitle  him  to  notice  of 
vacation  proceedings.'^"  An  owner  cannot  recover  for  injuries  to  highway  fences 
by  construction  of  an  electric  road,  where  such  fences  were  constructed  under  a 
license  requiring  removal  on  request,  their  presence  was  inconsistent  with  use  of 
the  highway,  and  the  owner  had  been  requested  to  remove  them.''*  An  o^vner  may 
recover  value  of  things  removed  in  la3'ing  out  a  street  because  of  failure  to  give 
notice  of  removal,  only  by  statutory  petition  and  not  in  tort.''^  Where  land  was 
conveyed  to  a  city  under  a  deed  restricting  its  use  to  a  certain  public  purpose,  and 
proceedings  by  the  city  to  condemn  the  land  were  never  completed  and  were 
treated  as  void,  the  owners  may  assert  their  rights  as  against  a  lessee  of  the  city 
who  used  the  land  for  a  private  manufacturing  enterprise.''^  An  abutting  owner 
may  recover  for  damages  by  change  of  a  street  grade  resulting  in  accumulation 
of  water  on  his  premises.''*  Where  injury  from  change  of  a  street  grade  is  un- 
avoidable, the  owner's  remedy  is  by  statutory  proceedings  before  viewers,  and 
not  by  trespass.''^  No  right  of  action  exists  for  damages  from  raising  a  street 
to  conform  to  an  established  grade,  without  authority  of  a  resolution,  though  the 
grade  had  been  established  by  ordinance.'®  Wliere  a  village  did  not  acquire 
rights  of  property  owners  affected  by  change  of  a  grade  crossing,  authorized  in 
proceedings  by  trustees  before  railroad  commissioners  and  to  ascertain  damages 
therefor,  the  owners  have  an  action  against  the  village  for  damages.'^  After  es- 
Gblishment  of  a  grade  by  ordinance,  improvement,  or  user,  an  abutting  owner 


63.  Ben  V.   Newton    (Mass.)    67   N.   E.   599. 

64.  Webber  v.  Toledo.  23  Ohio   Circ.  R.  237. 

65.  Acts  1872-73,  c.  75,  or  Acts  1854-55,  c. 
225,  providing  for  application  for  assessment 
to  the  clerk  of  the  superior  court — Dargan  v. 
Carolina  Cent.  R.  Co.,  131  N.  C.  623. 

66.  Lange  v.  La  Crosse  &  E.  R.  Co.  (Wis.) 
95   N.    W.    952. 

67.  Under  Rev.  St.  1895,  art.  4426 — St.  Lou- 
is, S.  F.  &  T.  R.  Co.  V.  Grayson  County  (Tex. 
Civ.  App.)    73   S.  W.    64. 

68.  Under  St.  1900,  c.  299 — Ahearn  v.  Mid- 
dlesex County,  182  Mass.  518. 

65>.  Hogsett  V.  Harlan  County  (Neb.)  97 
N.  W.  316. 

70.  Where  his  land  did  not  extend  to  the 
open  part  of  a  street  though  it  reached  part 
which  had  never  been  opened,  the  dedication 
of  which  had  never  been  accepted,  and  he 
could  not  reach  the  street  directly  except 
by  use  of  an  old  crossing  belonging  to  a 
railroad    company    whose    track    crossed    the 


street  and  which  had  been  allowed  to  be  used 
as  a  cross  street  since  vacated,  lie  is  not  so 
situated  as  to  be  entitled  to  recover — Beutel 
V.  West  Bay  City  Sugar  Co.  (Mich.)  94  N.  W. 
202. 

71.  Georgetown  &  L.  Traction  Co.  v.  Mul- 
holland,    25   Ky.   L.   R.   578,    76   S.   W.   148. 

72.  Stowell  V.  Ashley  (Mass.)  68  N.  E. 
675. 

73.  Sanborn  v.  Van  Duyne  (Minn.)  96  N. 
W.   41. 

74.  Recovery  from  city — Cooper  v.  Scran- 
ton  City.    21   Pa.   Super.  Ct.   17. 

75.  Borough  improvement  without  negli- 
gence and  following  a  borough  plan  of  gen- 
eral improvement  (Act  May  23,  1889,  or  Act 
May  16,  1891) — Cooper  v.  Scranton  City,  21 
Pa.    Super.    Ct.    17. 

76.  Wilbur  V.  Ft.  Dodge  (Iowa)  95  N.  W. 
186. 

77.  Torge  V.  Village  of  Salamanca.  86  App. 
Div.   (N.  Y.)    211. 


S  19A 


REMEDY  OF  OWNER  BY  ACTION. 


1039 


may  improve  his  property  in  accord  therewith;  but  before  establishment  he  can- 
not recover  for  injury  from  a  change  after  improvement  of  his  property,  unless 
the  city  has  established  an  unreasonable  grade.^^  A  riparian  owner  whose  prop- 
erty rights  are  injured  or  appropriated  by  irrigation  works  may  recover  compen- 
sation.''* An  action  of  tort  will  not  lie  to  recover  damages  for  water  taken  from 
a  stream  and  building  of  a  water  plant.*"  After  a  railroad  company  has  entered 
land  and  erected  buildings  with  or  without  the  owner's  consent,  a  subsequent 
vendee  can  recover  neither  the  land  nor  its  value  from  company.^^  Though  abut- 
ting owners  on  Park  Ave.,  New  York,  cannot  restrain  operation  of  railroad  on 
a  viaduct  erected  under  a  statute,  when  suing  for  damages  to  fee  and  rental  val- 
ues of  property,  they  may  recover  where  station  houses  of  the  company  extend 
beyond  the  street  line  of  the  viaduct  depriving  them  of  light  and  air.®^  After 
leasing  premises,  a  city  cannot  deprive  the  lessee  of  damages  to  the  leasehold  from 
construction  of  an  elevated  railroad  in  front  of  the  property  by  consenting  to 
construction;  the  lessee  may  recover  for  a  building  constructed  before  construc- 
tion of  the  road  regardless  of  renewals  of  the  lease  since  they  relate  back  to  re- 
newal of  the  original  term.*' 

Pleading,  issues  and  proof. — A  declaration  to  recover  damages  from  lowering 
the  grade  of  a  street  need  not  allege  that  the  property  has  been  benefited  by  the 
entire  improvement  in  other  respects  so  as  to  compensate  the  owner  for  such 
damages.®*  An  abutting  owner  suing  to  recover  damages  for  use  of  a  street  by 
a  railroad  company  while  changing  a  grade  crossing  need  not  show  a  benefit  to 
defendant  from  such  use  but  must  show  that  he  suffered  loss.®^  That  plaintiff's 
possession  in  an  action  for  damages  from  construction  of  a  railroad  in  a  street, 
extended  into  the  street,  and  that  he  had  not  acquired  the  right  to  such  property, 
may  be  considered  on  the  extent  of  injury.*®  Damages  may  be  recovered  for  ac-" 
cumulation  of  water  on  land,  in  an  action  for  damages  on  taking  for  a  right  of 
way,  though  improper  construction  of  the  road  is  not  substantially  pleaded.*' 
Wliere  it  was  not  alleged  in  recovery  for  negligence  of  a  city  in  removing  build- 
ings from  condemned  lands  that  there  was  any  cost  in  raising  the  buildings 
after  removal,  the  jury  could  not  be  charged  to  consider  such  cost  as  an  element 
of  damages.**  In  a  suit  to  recover  damages  for  wrongful  taking  of  land  by  a 
city  and  careless  removal  of  buildings  where  it  appeared  that  the  property  had 
been  legally  condemned  and  damages  assessed  and  tendered,  evidence  that  special 
benefit  to  the  property  was  greater  than  its  value  was  irrelevant  where  plaintiff 
was  allowed  to  amend  by  striking  out  averments  as  to  wrongful  taking.**  In  an 
action  for  damages  from  construction  of  a  railroad  in  an  adjacent  street,  defend- 


78.  Ross  V.  Cincinnati,  24  Ohio  Clrc.  R.  43. 

79.  Irrigation  Act  of  1895 — Crawford  Co. 
V.  Hathaway  (Neb.)  93  N.  W.  781. 

80.  St.  1886,  pp.  278,  279,  c.  311,  §§  1,  2,  4, 
creating  the  company  and  authorizing  it  to 
take  water  from  a  stream  and  construct  dams 
and  basins,  and  malting  it  liable  for  damages 
to  be  recovered  as  in  the  case  of  land  taken 
for  a  higliway,  provides  the  remedy  for 
damages  to  a  meadow  by  reason  of  the  dam 
and  raising  of  water  in  the  pond — Benson 
V.  Great  Harrington  Fire  Dist.  (Mass.)  67 
N.  E.  876. 

81.  King  V.  Southern  R.  Co.,  119  Fed. 
1017. 

83.  Viaduct  erected  under  Laws  1892,  p. 
694,  c.  337 — Dolan  v.  New  York  &  H.  R.  Co., 
176  N.  Y.   367. 


83.  The  rent  for  renewal  cannot  be  con- 
sidered to  have  been  paid  with  reference  to 
the  presence  of  the  road  wlien  the  building 
was  erected  previously;  assignment  of  the 
lease  in  violation  of  covenant  where  the  les- 
sors collected  rents  and  executed  a  renewal 
of  the  lease  without  regard  to  the  breach — 
Storms  V.  Manhattan  R.  Co.,  77  App.  Div.  (N. 
Y.)    94. 

84.  It  Is  a  matter  of  defense — Chicago  v. 
McShane,  102  111.  App.   239. 

85.  Knapp  &  C.  Mfg.  Co.  v.  New  York,  N. 
H.   &  H.   R.  Co.    (Conn.)    56  Atl.   512. 

86.  Pochila  v.  Calvert,  W.  &  B.  V.  R.  Co. 
(Tex.  Civ.  App.)  72  S.  W.  255. 

87.  Ark.insas  Cent.  R.  Co.  v.  Smith  (Ark.) 
71  S.  W.   947. 

88.  89.  Lamb  v.  Elizabeth  City.  131  N.  C. 
241. 


1040 


EMINENT  DOMAIN. 


§   19A 


ant  cannot  show  its  ofi'er  to  cut  down  the  street  grade  made  after  beginning  the 
action.^**  Evidence  that  phiintiii  was  compensated,  in  proceedings  to  condemn 
land  for  a  canal,  for  injuries  from  seepage  of  water,  is  not  admissible  where  the 
condemnation  proceedings  are  not  pleaded."^  On  an  issue  as  to  abandonment 
of  a  railroad  right  of  way,  it  may  be  showTi  that  the  road  was  built  to  haul  sup- 
plies and  products  for  a  mine  now  exhausted.®^ 

Burden  of  proof;  questions  of  fact;  witnesses/*^ — Defendants,  in  action  for 
damages  by  construction  of  a  railroad,  must  show  the  extent  of  special  benefits.^'' 
Though  a  petition  to  recover  for  land  taken  alleges  damages  to  land  not  taken, 
plaintiff  waives  such  damages  if  he  introduces  no  proof  thereof.®^  The  question 
of  damages  to  property  from  street  improvements  is  for  the  jury  in  an  action 
against  the  city.^*  Whether  there  was  an  intention  to  abandon  a  railroad  right  of 
way  is  a  question  for  the  jury  on  evidence  that  it  had  ceased  to  operate  the  road, 
had  removed  the  tracks  almost  entirely,  had  failed  to  keep  up  the  fences,  and 
allowed  the  right  of  way  to  grow  up  with  weeds.®^  A  witness  unacquainted  v/ith 
property  before  construction  of  a  trolley  line  on  a  highway  through  the  property 
cannot  testify  as  to  the  damages.®* 

View  of  premises;  instructions.^^ — The  jury  may  view  the  locus  in  an  ac- 
tion against  a  county  to  recover  damages  from  construction  of  a  bridge.^  An 
instruction  that  abandonment  of  right  of  way  will  give  the  owner  of  the  fee 
right  to  possession  is  not  misleading  as  omitting  the  element  of  intention  in 
abandonment  where  other  instructions  clearly  charged  as  to  such  intention.^ 

Verdict,  judgment,  and  allowance  of  damages. — In  a  suit  to  recover  per- 
manent damages  for  erection  of  a  telegraph  line  upon  land  without  acquisition 
of  the  right,  damages  to  crops  within  the  three  years  during  which  the  line  was 
building  cannot  be  added  to  permanent  damage.'  Where  it  did  not  appear,  in 
an  action  to  recover  for  negligence  in  removing  buildings  from  land  appropriated 
by  the  city,  that  special  benefit  had  not  been  considered  in  the  condenmation 
proceedings,  it  could  not  be  set  off  against  the  damages.*  Where,  in  an  action  for 
injuries  from  seepage  of  water  from  a  canal,  a  stipulation  was  made  that  a  judg- 
ment for  plaintiff  should  be  joint  against  the  contractor  and  the  canal  corpora- 
tion, and  that  the  latter  would  not  set  up  a  defense  against  plaintiff  that  the  con- 
tractor was  an  independent  contractor,  a  finding  for  plaintiff  after  verdict  that 
the  canal  corporation  was  liable  and  the  contractor  not  liable  was  harmless  though 
unnecessary."  A  writ  of  ouster  in  ejectment  will  not  be  restrained  as  to  service, 
where  it  appears  from  the  face  of  the  petition  that  the  defendants  in  the  eject- 
ment claimed  under  condemnation  proceedings   after  the  final  ejectment  judg- 


90.  Pochfla  V.  Calvert,  W.  &  B.  V.  R.  Co. 
(Tex.  Civ.  App.)   72  S.  W.   255. 

91.  Turpen  v.  Turlock  Irr.  Dist.  (Cal.)  74 
Pac.    295. 

93.  Chicago  &  B.  I.  R.  Co.  v.  Clapp,  201 
111.  418. 

93.  Sufficiency  of  objection  In  ejectment 
against  a  railroad  company  that  employe  of 
the  company  was  not  permitted  to  state  the 
Intention  of  the  company  as  to  abandonment 
of  the  road — Chicago  &  E.  L  R.  Co.  v.  Clapp, 
201   111.   418. 

94.  Pochila  V.  Calvert,  W.  &  B.  V.  R.  Co. 
<Tex.  Civ.  App.)   72  S.  "W.  255. 

05.  McElroy  V.  Kansas  City  &  I.  Air  Line, 
172   Mo.    546. 

96.  Board  of  Councllmen  v.  Howard,  25 
Ky.  L.  R.  Ill,  74  S.  W.  703. 

97.  Chicago  &  E.  I.  R.  Co.  v.  Clapp,  201 
III.   418. 


98.  Shimer  v.  Easton   R.  Co.,   205  Pa.   648. 

99.  Snfliciency  of  instructions  as  to  meas- 
ure of  damages  In  an  action  to  recover  for 
construction  of  viaduct  on  a  street  in  front 
of  property  (Chicago  v.  Le  Moyne  [C.  C.  A.J 
119  Fed.  662)  as  to  set-off  in  action  to  re- 
cover for  closing  a  street  under  agreement 
between  a  city  and  a  railroad  company  oc- 
cupying another  street — Village  of  Winnetka 
V.  Clifford,   201  111.   475. 

1.  Lafean  v.  York  County,  20  Pa.  Super. 
Ct.    573. 

2.  Chicago  &  E.  I.  R.  Co.  v.  Clapp,  201 
111.    418. 

3.  Hodges  V.  Western  Union  Tel.  Co.  (N 
C.)   45  S.  E.  572. 

4.  Lamb  v.   Elizabeth   City,   131  N.   C.   241 

5.  Turpen  v.  Turlock  Irr.  Dist.  (Cal.)  74 
Pac.   295. 


§  I'^ii 


INJUNCTION. 


1041 


ment  and  which  were  void  because  the  law  under  which  they  were  brought  failed 
to  provide  for  notice  to  the  landowner.®  Where,  in  statutory  proceedings  for 
assessments  of  damages  from  construction  of  approach  to  a  county  bridge,  an  ob- 
jection was  made  successfully  on  the  ground  that  the  act  does  not  apply,  the  coun- 
ty  commissioners  cannot  object  to  a  judgment  in  trespass  by  the  o^oier  after 
trial  on  the  merits,  on  the  ground  that  his  proper  remedy  was  under  such  act/ 
In  a  suit  against  a  city  to  prevent  continuing  trespass  and  recover  damages  from 
lowering  the  water  level  under  land  by  establishment  of  a  pumping  station  nearby, 
an  award  of  fee  damage  is  not  incorrect  because  the  city  had  given  plaintiff  no 
notice  of  intention  to  acquire  the  land.*  An  award  of  fee  damage  against  a  city 
for  continuing  trespass  and  damage  from  lowering  the  water  level  under  land  by 
establishment  of  a  pumping  station  cannot  be  attacked  on  the  ground  that  it  was 
an  award  of  depreciation  in  value  of  the  rest  of  the  property  after  the  water  was 
taken,  without  allowing  for  the  water,  plaintiff  having  only  a  right  of  use  in  the 
water  which  was  included  in  the  fee  damages.® 

Appeal. — While  a  deed  by  plaintiff's  curator  to  land  for  a  railroad  track  and 
appurtenances  might  be  investigated  in  an  action  against  the  railroad  company 
for  obstruction  of  use  of  a  roadway  reserved  in  the  deed,  to  determine  whether 
such  reservation  was  made,  the  title  to  the  land  could  not  be  affected  by  the  judg- 
ment so  as  to  give  the  supreme  court  jurisdiction  of  an  appeal  direct  from  the 
circuit  court.^° 

(§  19)  B.  Suits  in  equity;  injunction}'^ — An  attempt  to  take  property  with- 
out exercise  of  eminent  domain,  or  payment  of  compensation,  vsdll  be  restrained,^^ 


6.  Board  of  Education  v.  Aldredge  (Okl.) 
73  Pac.  1104. 

7.  Act  May  16,  1891,  P.  L.  75 — Lafean  v. 
York  County,  20  Pa.  Super.  Ct.  573. 

8.  Plaintiff  was  not  entitled  to  notice  of 
intention  to  commit  a  trespass — Westphal 
V.  New  York,  75  App.  Div.   (N.  Y.)  252. 

9.  TVestphal  V.  New  York,  75  App.  Div.  (N. 
Y.)   252. 

10.  In  re  McGee  St.   (Mo.)   74  S.  W.  993. 

11.  Where  there  was  no  apparent  connec- 
tion between  tw^o  ordinances,  one  of  which 
authorized  condemnation  of  lands  to  widen 
a  street  and  another  authorized  a  railroad 
company  already  operating  two  tracks  in 
the  street  to  lay  two  more  tracks  on  pay- 
ment of  costs  of  condemnation  and  improve- 
ments made  necessary  by  the  alteration  and 
the  additional  tracks,  the  property  owner 
could  not  be  required  to  make  a  defense  in 
the  original  condemnation  by  showing  the 
connection  between  the  two  ordinances  and 
the  real  purpose  of  the  railroad  in  the  pro- 
ceeding, and  his  failure  to  object  at  that  time 
on  the  ground  that  such  purpose  was  to  pro- 
cure a  right  of  way  for  the  railroad,  will 
not  prejudice  him  in  a  suit  to  restrain  the 
construction — Pennsylvania  Co.  v.  Bond,  202 
111.  95. 

12.  St.  Louis  &  S.  P.  R.  Co.  V.  Southwest- 
ern Tel.  Co.  (C.  C.  A.)  121  Fed.  276.  Taking 
of  property  for  public  street — Baya  v.  Town 
of  Lake  City  (Pla.)  33  So.  400.  Entry  of 
abutting  lands  by  electric  railway  company 
— Freud  V.  Detroit  &  P.  R.  Co.  (Mich.)  95  N. 
W.  559.  Though  there  is  a  controversy  as 
to  title  or  boundaries — Foley  v.  Doddridge 
County  Ct.  (W.  Va.)  46  S.  B.  246.  Railroad 
sidings  and  switches  In  highway  under  pow- 
er to  maintain  only  a  single  track — Stephens 
V.  New  York,  O.  &  W.   R.   Co.,   175  N.   Y.    72. 

Curr.  Law. — 66. 


Construction  of  railroad  in  street  in  which 
abutting  owner  has  easement— -Cleveland 
Burial  Case  Co.  v.  Erie  R.  Co.,  24  Ohio  Clrc. 
R.  107.  An  abutting  owner  may  restrain 
building  of  telephone  line  on  rural  highway 
— Gray  v.  New  York  State  Tel.  Co.,  41  Misc. 
(N.  Y.)  108.  Riparian  owners  may  restrain 
pollution  of  a  river  by  city  sewage  above  tide 
waters — Doremus  v.  Paterson  (N.  J.  Err  & 
App.)  55  Atl.  304.  The  court  failed  to  pro- 
vide for  payment  of  damages  assessed  on 
opening  a  highway  (Rev.  St.  art.  4694) — Mc- 
Cown  V.  Hill  (Tex.  Civ.  App.)  73  S.  W.  850. 
One  railroad  company  will  be  prevented  from 
crossing  track  of  another  (Civ.  Code,  §  2167) 
— Atlantic  &  B.  R.  Co.  v.  Seaboard  Air-Line 
R.,  116  Ga.  412.  Crossing  irrigation  canal 
with  lateral  to  carry  water  to  land — Castle 
Rock  Irr.  Canal  &  Water  Power  Co.  v.  Jur- 
isch  (Neb.)  93  N.  W.  690.  Taking  for  a 
street;  exclusive  possession  under  a  contract 
of  purchase  and  part  payment  of  purchase 
price  gives  the  right  to  bring  injunction — 
Olson  v.  Seattle,  30  Wash.  687,  71  Pac.  201. 
Railroad  siding  in  street  on  other  than  es- 
tablished grade  built  without  authority  of 
city  and  damaging  access  and  drainage  rights 
— Zook  V.  Pennsylvania  R.  Co.  (Pa.)  56  Atl. 
82.  Railroad  track  in  street  the  title  to 
which  was  in  the  abutting  owner;  that  con- 
struction has  been  begun  and  the  company 
has  incurred  great  expense  will  not  prevent 
restraint — Paige  v.  Schenectady  R.  Co.,  77 
App.  Div.  (N.  Y.)  571.  Abutting  owner  may 
restrain  laying  of  additional  railroad  tracks 
in  a  street  without  grant  or  condemnation 
or  payment  of  compensation — Rock  Island  & 
P.  R.  Co.  V.  Johnson  (111.)  68  N.  E.  549.  An 
owner  may  restrain  street  railroad  tracks 
built  without  his  consent  though  owners  on 
the  opposite  side  of  the  street  have  consent- 


1042 


EMINENT  DOMAIN. 


§  191? 


but  construction  of  an  improvement  causing  damages  will  not  be  prevented  there 
being  a  remedy  at  law  for  damages/^  unless  it  is  shown  to  be  a  nuisance  by  whicli 
complainants  suffer  special  injury;^*  nor  an  improvement  causing  no  injury  to 
complainant;^*  nor  where  property  is  not  taken  directly  for  public  purpose,  but 
suffers  injury  as  to  rights  incidental  to  its  peculiar  station  or  position,  so  that 
condemnation  proceedings  and  payment  of  damages  in  advance  are  not  practi- 
cable.^'' A  railroad  company  may  be  restrained  from  destroying  a  telegraph  line 
built  by  a  telegraph  company  under  statutory  authority  along  the  railroad  and 
pending  proceedings  to  condemn  a  right  of  way  along  such  road,  where  irrepa- 
rable damage  would  result  to  the  telegraph  company.^'  In  IMaryland,  construc- 
tion and  operation  of  an  electric  railway  on  a  county  highway  will  not  be  re- 
strained.^® Where  two  years  before  making  of  a  contract  for  lease  of  a  quarry 
th§  OAvner  conveyed  a  railroad  right  of  way,  the  lessee's  rights  were  subject  to  the 
deed,  so  that  he  could  not  restrain  the  building  of  the  railroad  by  a  grantee  from 
the  railroad  company  because  of  failure  of  such  grantee  to  condemn  and  pay 
damages  for  his  interest.^'  Condemnation  will  not  be  restrained  because  of  lack 
of  failure  to  agree  on  compensation,^**  nor  because  an  illegal  and  imconstitu- 
tional  method  of  assessing  damages  was  prescribed. ^^  An  action  by  an  owner  to 
dispossess  a  railroad  company  of  his  land  will  be  restrained  on  offer  of  compen- 
sation by  the  company.^^  Condemnation  proceedings  to  take  a  right  of  way  will 
not  be  restrained.^^  A  railroad  company  entering  realty  under  a  lease,  with  a 
view  to  pui'chase  when  possible  and  building  part  of  its  line,  may  restrain  the 
lessor  for  a  reasonable  time  from  dispossessing  it  so  that  it  may  condemn  the 
land.^*  One  who  failed  to  appeal  cannot  sue  in  equity  to  set  aside  the  con- 
demnation.^' 

In  suing  to  determine  rights  in  a  stream,  plaintiff  may  offer  to  do  equity 
by  compensating  riparian  owners  whose  rights   are  affected  by  construction  of 


ed — North  Pennsylvania  R.  Co.  v.  Inland 
Traction  Co.,  205  Pa.  579.  Wrongful  entry  of 
a  private  road  and  damage  to  access  and 
property  by  a  city  may  be  prevented.  Where 
part  of  the  cost  was  assessed  against  the 
owner  he  may  liave  the  assessment  set 
aside  and  compel  restoration  and  payment 
of  damages — Culver  v.  Tonkers,  80  App.  Div. 
(N.  Y.)  309.  It  must  appear  that  there  was 
appropriation  actual  or  intended  without 
compensation  where  directors  of  a  water 
company  evinced  an  intention  to  comply  with 
the  law  in  taking  waters  in  which  riparian 
owners  had  rights — Hey  v.  Springfield  Water 
Co.  (Pa.)  56  Atl.  265.  Construction  of  ele- 
vated railroad  in  street  already  containing 
one  railroad  will  be  restrained  at  suit  of  a 
subsequent  purchaser  of  abutting  property 
without  actual  or  constructive  notice  of  con- 
sent by  his  grantor  to  such  construction — 
Shaw  V.  New  York  El.  R.  Co..  78  App.  Div. 
(N.  Y.)  290. 

13.  Abutting  owners  cannot  restrain  elec- 
tric railway  in  street  because  of  threatened 
damage  to  access  or  from  noise,  dust  and 
vibration — Baker  v.  Selma  St.  &  S.  R.  Co.. 
135  Ala.  552.  Operation  of  railroad  track  in 
highway  under  special  ordinance  causing  in- 
jury to  abutting  owners — -Budd  v.  Camden 
Horse  R.  Co.,   63  N.  J.  Eq.   804. 

14.  Electric  railway  in  street — Baker  v. 
Selma  St.  &  S.  R.  Co.,  135  Ala.  552. 

15.  A  railway  company  cannot  restrain 
construction  of  street  railway  on  public  road 
crossing  its    tracks   and   on   which   Its   lands 


abut.  If  none  of  its  rights  or  franchises  are 
injured  (Act  June  19,  1871;  P.  L.  1360) — 
Nortli  Pennsylvania  R.  Co.  v.  Inland  Traction 
Co.,  205  Pa.  579. 

16.  The  owner  will  be  left  to  his  remedy 
at  law  unless  insolvency  or  other  special 
reason  appears — Bronson  v.  Albion  Tel.  Co. 
(Neb.)    93  N.   W.   201. 

17.  Act  July  24,  1866,  construed  in  con- 
nection with  Rev.  St.  §  3964 — Western  Union 
Tel.  Co.  v.  Pennsylvania  R.  Co.,  120  Fed 
981. 

18.  The  easement  taken  for  the  highway 
is  held  to  have  included  such  use — Lonacon- 
ing  Midland  &  F.  R.  Co.  v.  Consolidation  Coa 
Co.,  95  Md.  630. 

19.  Coyne  v.  Warrior  Southern  R.  Co 
(Ala.)  34  So.  1004. 

20.  There  is  an  adequate  remedy  by  de- 
fense in  the  condemnation  proceedings — St. 
Louis  &  S.  F.  R.  Co.  v.  Southwestern  Tel. 
Co.  (C.  C.  A.)  121  Fed.  276. 

21.  Taking  land  for  sewerage  plant  by 
city;  power  to  take  the  land  was  not  in  is- 
sue— Vickers  v.  Durham,  132  N.  C.  880. 

22.  Action  by  lessee  giving  company  right 
to  enter — W^inslow  v.  Baltimore  &  O.  R.  Co.. 
188  U.  S.  646,   47  Law.  Ed.   635. 

23.  Holly  Shelter  R.  Co.  v.  Newton  (N.  C.) 
45  S.  E.  549. 

24.  W^inslow  V.  Baltimore  &  O.  R.  Co.,  188 
U.  S.   646. 

25.  Opening  highway  (Rev.  St.  1899.  !; 
9419) — Searcy  v.  Clay  County  (Mo.)  75  S.  W. 
657. 


.^  19B 


INJUNCTION. 


1043 


an  irrigation  canal  without  leaving  them  to  their  actions  at  law.'"  By  suing  in 
equity  instead  of  at  law  for  trespasses  by  injuries  to  property,  plaintiff  waives 
his  statutory  right  to  condemnation  proceedings  and  a  jury  trial.'''  Where  a 
devisee  seeks  to  restrain  operation  of  a  street  railway  in  front  of  premises  and 
to  recover  damages  accruing  after  the  death  of  his  testator  and  before  such  death 
under  an  assignment  from  the  testator,  defendant  waives  his  right  to  have  such 
damages  ascertained  at  law  by  making  no  objection  to  their  recovery  and  allowing 
proof.  ^® 

Limitation  and  laches. — Eecovery  for  permanent  damages  by  erection  of  a 
telegraph  line  across  land,  within  three  years,  is  not  barred  by  the  three  years' 
statute.'®  Proceedings  for  damages  instituted  nearly  three  years  after  reference 
of  assessment  of  damages  by  the  board  of  street  commissioners  to  commissioners 
of  assessments  are  not  barred  by  laches.^"  One  whose  property  is  taken  by  a  city 
without  payment  or  taking  possession  within  six  months  may  elect,  after  the  tak- 
ing, liis  manner  of  suit  therefor,  and  such  right  will  not  be  barred  in  less  than 
twenty-one  years.^^  Where  a  street  railway  company  built  a  single  track  on  a 
turnpike  so  as  to  show  intent  to  build  a  double  track  and  operated  it  for  two  years 
before  laying  of  the  second  track,  abutting  owners  are  estopped  by  laches  from 
restraining  further  construction  after  the  track  is  one-third  completed.^'  An  abut- 
ting owner  owning  the  fee  in  a  street  on  which  a  railroad  company,  granted  mu- 
nicipal authority  to  construct  a  track,  has  laid  a  second  track,  is  not  guilty  of 
laches  in  seeking  to  restrain  use  of  such  track  because  the  right  of  construc- 
tion was  not  obtained  by  grant  or  condemnation,  where  he  proceeded  as  soon  as 
he  learned  that  the  company  intended  to  use  such  track  as  a  permanent  second 
track  supposing  previously  that  it  was  only  a  temporary  track.*^ 

Parties. — Nonriparian  lessees  and  grantees  of  the  privilege  to  take  and  use 
water  from  a  canal,  into  which  water  flowed  from  a  river  above  the  flow  of  the 
tide  and  which  was  returned  to  the  river  below  such  flow,  cannot  be  joined  as 
complainants  with  riparian  owners  in  a  suit  against  the  city  to  restrain  the  pol- 
lution of  the  river  without  condemnation  and  compensation.^*  Where  it  appears 
after  suit  for  injunction  and  damages  for  operation  of  a  railway  in  front  of 
premises  that  the  original  plaintiff  has  parted  with  the  fee  without  reserving 
any  rights  so  that  the  only  question  in  issue  is  that  of  past  damages,  the  court 
cannot,  in  the  exercise  of  its  discretion,  make  the  grantee  a  party  plaintiff.^^ 

Pleading  and  issues. — A  petition  to  restrain  opening  of  a  highway  alleging 
that  damages  assessed  to  plaintiff  had  not  been  paid  is  sufficient,  where  no  special 
exception  is  made  to  admitting  evidence  on  the  issue. ^®  In  a  suit  to  prevent 
erection  of  a  telephone  pole  on  property  because  of  irreparable  damage,  allegations 
that  defendant  was  without  authority  to  erect  the  pole,  or  that  its  erection  would 
be  unlawful,  or  that  there  was  no  adequate  remedy  at  law,  are  necessary.^''     A 


36.  Crawford  Co.  v.  Hathaway  (Neb.)  93 
N.   W.    781. 

27.  InjiJry  from  city  pumping-  stations — 
Westpha]  v.  New  York,  75  App.  Div.  (N.  Y.) 
252. 

38.  Hirsh  v.  Manhattan  R.  Co.,  84  App. 
Div.   (N.  Y.)   374. 

29.  Hodges  V.  Western  Union  Tel.  Co.  (N. 
C.)    45   S.   E.    572. 

30.  Klaus  V.  Jersey  City  (N.  J.  Law)  54 
Atl.  220. 

31.  Rev.  St.  §1  2260,  4977 — Webber  v.  To- 
!edo,  23  Ohio  Clrc.  R.  237. 


32.  Hinnershltz  v.  United  Traction  Co. 
(Pa.)    55   Atl.   841. 

33.  Rock  Island  &  P.  R.  Co.  v.  Johnson 
(111.)    68   N.   E.   549. 

34.  Their  rig-hts  are  subordinate  to  those 
of  the  city — Doremus  v.  Paterson  (N.  J.  Err. 
&  App.)  55  Atl.  304. 

35.  The  causes  of  action  are  totally  dis- 
tinct— Pope  V.  Manhattan  R.  Co.,  79  App. 
Div.    (N.    Y.)    583. 

36.  McCown  v.  Hill  (Tex.  Civ.  App.)  73 
S.  W.  850. 

37.  Cooke  v.  Central  Dist.  &  Print.  Tel. 
Co.,  21  Pa.  Super.  Ct.  43. 


1044 


EMINENT  DOMAIN. 


§  20 


complaint  for  injunction  to  restrain  interference  with  a  taking  of  property  need 
not  set  out  the  instrument  of  appropriation  or  aver  that  it  stated  jurisdictional 
facts.^^  On  a  bill  to  prevent  a  railroad  company  from  laying  a  siding  in  a  street, 
in  a  manner  other  than  the  established  grade,  the  power  of  the  city  to  give  con- 
sent cannot  be  considered.^"  A  devisee  who  acquired,  by  assignment,  claims  of  his 
testator's  estate  to  damages  for  operation  of  an  elevated  railroad  in  a  street,  may 
include  them  in  recovery  in  a  suit  to  restrain  operation.*" 

Decree,  judgment,  or  order.*^ — On  a  prima  facie  showing  to  restrain  con- 
demnation of  land  for  a  station,  the  proceedings  should  be  restrained  until  the 
statutory  right  to  condemn  is  judicially  determined.*^  In  a  suit  to  restrain  the 
crossing  of  one  railroad  track  by  another,  the  court  cannot  provide  that  plain- 
tiff's track  may  be  crossed  on  condition  that  defendant  put  in  a  certain  described 
system  of  swatches.*^  In  a  suit  to  restrain  proceedings  by  one  railroad  company 
to  take  an  entire  tract  of  land  belonging  to  another,  and  including  property  al- 
ready in  actual  and  necessary  use  for  railroad  purposes,  the  court  cannot  divide 
a  single  award  so  as  to  allow  it  to  stand  in  part  and  to  be  set  aside  in  part.** 

§  20.  Paytnent  and  distribution  of  sum  aivarded.*^  Title  or  interest  requir- 
ing compensation.*'^ — A  city  to  which  land  has  been  dedicated  for  a  public  park 


S8.  It  is  sufficient  if  it  alleges  authority 
to  cross  a  railroad  track  and  inability  to 
agree  on  compensation,  the  filing  of  an  in- 
strument of  appropriation,  the  fixing  of  the 
amount  by  commissioners,  and  that  the  rail- 
road company  interfered  with  its  right  to 
cross,  asking  an  injunction  (Burns'  Rev.  St. 
1901,  §  5468a,  cl.  5,  &  §  5468e) — Wkbash  R. 
Co.  V.  Ft.  "VTayne  &  S.  W.  Traction  Co.  (Ind.) 
67  N.  E.  674. 

3l>.  Zook  V.  Pennsylvania  R.  Co.  (Pa.)  56 
Atl.  82. 

40.  Hirsh  v.  Manhattan  R.  Co.,  84  App. 
Div.    (N.   T.)    374. 

41.  A  judgment  against  the  city  to  prevent 
a  continuing  trespass  and  for  damages  to 
land  caused  by  a  pumping  station,  rendered 
lessees  for  raising  crops,  requiring  them  on 
in  behalf  of  plaintiffs  some  of  whom  are  only 
tender  of  the  amount  designated  to  convey  to 
defendant  the  right  to  maintain  and  operate 
the  pumping  station  as  constructed,  merely 
Intends  conveyance  of  such  rights  as  a  par- 
ticular plaintiff  may  have  and  was  not  incor- 
rect as  requiring  him  to  act  beyond  his  pow- 
er— Westphal  v.  New  York,  75  App.  Div.  (N. 
Y.)   252. 

42.  Riley  V.  Charleston  Union  Station  Co. 
O.  C.)  45  S.  E.  149. 

43.  Under  Civ.  Code,  §  2167 — Atlantic  & 
B.  R.  Co.  V.  Seaboard  Air-Line  R.,  116  Ga. 
412. 

44.  Atchison,  etc.,  R.  Co.  v.  Kansas  City, 
etc..  R.  Co.   (Kan.)  73  Pac.  899. 

45.  The  special  fund  referred  to  In  Comp. 
St.  1901,  c.  12a,  §  7  providing  the  moneys  to 
re-imburse  a  city  for  payment  of  damages  to 
abutting  property  on  the  taking  of  lands, 
does  not  refer  to  an  assessment  levied  in 
pursuance  of  that  law,  but  to  a  levy  made 
for  the  payment  of  a  specific  judgment  under 
§  158,  Comp.  St.  1901.  §  2,  art.  6,  §  77 — Omaha 
V.   State   (Neb.)   94  N.  W.   979. 

46.  Where  property  is  under  lease  for  a 
certain  term  with  covenant  of  renewal  on 
terms  to  be  settled  by  the  parties  and  lessee 
builds  on  the  premises,  that  the  rent  for 
renewal  was  paid  with  reference  to  presence 
of  an  elevated  railroad  in  front  of  premises 


erected  during  original  term  will  not  prevent 
lessee  from  recovering  damages  to  his  lease 
hold — Storms  v.  Manhattan  R.  Co.,  77  App. 
Div.  (N.  Y.)  94.  Where  land  was  appropriat- 
ed by  a  city  to  widen  and  extend  a  street 
and  compensation  assessed  but  possession 
was  not  taken  by  the  city  nor  the  award 
paid  until  years  after  the  appropriation  and 
after  the  property  had  changed  hands,  a 
widow  receiving  part  of  the  property  as 
devisee  under  will  of  a  testator  who  owned 
it  at  time  of  condemnation  and  to  whom 
part  w^as  conveyed  by  warranty  deed  .-^fter 
condemnation,  and  before  construction  ot  the 
street,  may  sue  for  the  compensation  as- 
sessed— Webber  v.  Toledo,  23  Ohio  Circ.  R. 
237.  Where  before  actual  grading  of  a  street 
was  begun  under  a  contract,  land  on  -which  it 
was  laid  out  was  conveyed  and  viewers  ap- 
pointed to  estimate  the  damages,  from  who^-e 
estimate  a  new  owner  appealed  and  on  th& 
issues  a  verdict  was  properly  rendered  for 
him;  the  viewers  were  appointed  after  the 
grading  and  he  was  entitled  to  recover  re- 
gardless of  a  law  requiring  the  viewers  to 
report  in  a  single  sum  as  to  both  benefits 
and  damages,  or  another  law  requiring  that 
an  award  of  damages  shall  include  all  dam- 
ages, since  such  laws  apply  only  to  view- 
ers appointed  before  the  court  (Act  May  16, 
1891  [Pub.  Laws  75]  &  Act  May  26,  1891 
[P.  L.  117]) — Howley  v.  Pittsburg.  204  Pa. 
428.  Where  a  city  acquired  land  three  years 
after  proceedings  were  begun  to  lay  out  a 
street  designated  on  a  map  previously  filed 
with  the  registrar,  and  before  condemnation, 
the  land  was  subdivided  into  lots  and  a  map 
made  on  which  the  propo.sed  street  appeared 
as  laid  out,  the  lots  were  sold  and  deeds  de- 
livered the  day  after  acquisition  by  the 
city,  boundaries  of  lots  including  all  land 
within  the  proposed  street  and  the  deeds  con- 
taining a  clause  making  the  sale  subject  to 
proceedings  pending  for  the  opening  of 
streets,  the  grantee  had  an  absolute  title  to 
the  land  without  regard  to  easements,  and 
must  receive  compensation  for  full  fee  value 
— In  re  City  of  New  York,  80  App.  Div.  (N. 
Y.)  618. 


20 


PAYMENT  AND  DISTRIBUTION. 


1045 


cannot  have  compensation  on  its  condemnation  for  a  post  office."  Property  own- 
ers whose  title  depends  on  a  conveyance  from  the  heirs  of  a  former  owner  cannot 
contest  the  title  of  other  heirs  in  condemnation  without  acquiring  the  interest  of 
the  latter.**  An  award  to  a  tenant  for  interruption  to  his  business  by  condemna- 
tion of  property  cannot  be  deducted  from  damages  sustained  by  the  property.*^ 
That  a  devisee  may  restrain  operation  of  an  elevated  railroad  in  front  of  premises 
will  not  entitle  him  to  recover  damages  accruing  during  life  of  the  testator/" 
\Vhere  a  city  builds  a  viaduct  over  railroad  tracks  causing  a  change  of  street  grade, 
damaging  municipal  property,  no  damages  can  be  awarded  to  the  city  in  order  to 
compel  partial  contribution  by  the  railroad  company.^^ 

Sufficiency  of  payment.^^ — Compensation  for  property  taken  must  be  by  actual 
payment  or  its  equivalent  of  damages  assessed,**^  Where  an  unconditional  award 
is  made  an  owner  for  land  condemned  by  a  city,  a  personal  debt  of  the  owner  lor 
taxes  may  be  deducted  by  the  city."*  In  a  county  under  township  organization, 
damages  for  land  taken  for  a  highway  may  be  paid  to  a  township  trustee  after  the 
owner  refuses  to  receive  them.°^ 

Distribution.^^ — Equity  will  determine  which  of  several  claimants  is  entitled 
to  the  award  for  land  condemned  by  a  city  for  a  street.*^  The  award  of  freehold- 
ers, or  of  the  district  court  on  appeal,  stands  for  the  land  and  belongs  to  lien- 
holders  to  the  extent  of  their  liens."*  Wliere  plaintiff  has  recovered  judgment  and 
paid  into  court  the  damages,  payment  to  defendants  cannot  be  ordered  pending 
appeal  by  them  on  other  grounds  than  insufficiency  of  the  award."® 

Lien  and  enforcement.^'^ — Wliere  an  award  was  not  paid  but  petitioner  entered 
and  used  the  land,  the  owner  had  a  lien  on  the  land  enforceable  in  equity. ^^  An 
attorney's  lien  against  an  award  may  be  enforced  in  equity  where  distribution  is 
disputed.®^ 


47.  It  has  no  legal  estate;  laws  and  de- 
cisions of  Mass.  governing  condemnation  pro- 
ceedings for  that  purpose  by  the  United 
States — In  re  Certain  Land  in  Lawrence,  119 
Fed.  453. 

48.  United  New  Jersey  R.  &  Canal  Co.  v. 
Consolidated  Fruit  Jar  Co.  (N.  J.  Eq.)  55 
Atl.    46. 

49.  St.  Louis  V.  Abeln,  170  Mo.  318.  The 
award  to  the  tenant  cannot  be  deducted  from 
the  award  to  owners  of  fee  in  remainder 
(Acts  1897,  c.  19) — Board  of  Levee  Com'rs  v. 
Nelms   (Miss.)    34   So.   149. 

50.  Hirsh  v.  Manhattan  R.  Co.,  84  App. 
Div.    (N.    Y.)    374. 

51.  Viaduct  built  under  a  contract  with 
the  city — In  re  Grade  Crossing  Com'rs,  171 
N.  T.  685. 

53.  Comp.  St.  1901,  §  158,  c.  12a.  regarding 
the  assessment  of  damages  against  abutting 
and  adjacent  lands  for  lands  taken  by  a  city 
provides  means  for  re-imbursement  of  the 
city  for  such  payment,  but  does  not  contem- 
plate the  creation  of  a  fund  to  pay  such 
owners — Omaha  v.  State  (Neb.)  94  N.  W. 
S79. 

53.  Brown  v.  Chicago,  R.  I.  &  P.  B  Co. 
(Neb.)   92  N.  W.  128. 

54.  Buckhout  v.  New  York,  82  App.  Div 
(N.  Y.)   218. 

55.  Const,  art.  2 — Shively  v.  Lankford 
(Mo.)   74  S.  W.  835. 

56.  Sufficiency  of  evidence  in  action  to 
determine  conflicting  claims  to  award  for 
land  taken  for  a  street  to  show  that  part  of 
the  land  had  previously  been  dedicated  as  a 
street    so    that    defendant    had    no    right    to 


compensation — Gardiner  v.  Baltimore,  96  Md. 
361.  On  conflicting  claims  to  an  award  equi- 
ty may  entertain  a  bill  by  a  defendant  in  the 
proceedings,  claiming  that  a  tract  owned  by 
him  and  condemned  was  claimed  by  the  city 
as  included  in  the  street  and  refusing  to 
receive  the  award  for  property  which  was 
not  claimed  as  within  the  street,  under  Acts 
1892,  c.  165;  New  Charter  of  Baltimore,  § 
827,  providing  for  determination  of  conflict- 
ing claims  regarding  awards  for  condemna- 
tion of  property  by  the  city  by  a  suit  in 
equity — Id. 

57.  The  title  passes  to  the  city  and  the 
suit  Is  not  to  determine  title — Gardiner  v. 
Baltimore,  96  Md.  361. 

58.  Omaha  Bridge  &  Terminal  R.  Co.  v. 
Reed   (Neb.)    96  N.  W.   276. 

59.  Pool    V.    Butler    (Cal.)    74    Pac.    444. 

60.  Sufficiency  of  evidence  in  a  suit  to  en- 
force an  equitable  lien  on  land  taken  for 
payment  of  the  award  to  overthrow  a  pre- 
sumption of  payment  from  lapse  of  time — 
Southern  R.  Co.  v.  Gregg  (Va.)   43  S.  E.  57a 

"Where  the  question  of  payment  was  not 
in  issue  in  a  suit  to  enforce  an  award  for 
land  taken,  and  plaintiff's  evidence  that  there 
had  been  no  payment  was  not  denied  and 
he  had  continuously  asserted  such  claim, 
which  had  been  acknowledged  by  the  de- 
fendant railroad  company  and  its  predeces- 
sors who  condemned  the  property,  there  was 
no  laches — Southern  R.  Co.  v.  Glregg  (Va.) 
43  S.  E.  570. 

61.  Southern  R.  Co.  v.  Gregg  (Va.)  43  S. 
E.     570. 

62.  Award   to  a  city  and    other  claimants 


lU4t? 


EMINENT  DOMAIN. 


§  21 


§  21.  Ownership  or  interest  acquired. — An  easement  running  with  the  land 
is  acquired  by  condemnation  thereof.^^  A  stock  yard  and  transit  company  does 
not  acquire  the  fee  in  taking  land.®*  A  petitioner  taking  a  right  of  way  for  a 
ditch,  having  a  prior  right  to  construct  it,  is  vested  Avith  the  esclusive  right,  title, 
and  possession  of  the  land.®'  A  provision  that  proceedings  under  statutes  for 
condemnation  of  property  and  giving  "ownership"  to  plaintiff  applies  to  all  cases 
where  the  intent  is  to  vest  in  plaintiff  more  than  the  right  of  occupation  or 
use  of  the  land.®®  Proceedings  by  a  school  district  to  take  a  school  house  site  divests 
the  owner  of  title  though  he  had  at  the  time  only  an  equitable  title  and  afterward 
received  the  legal  title.®^  A  railroad  built  on  public  tide  lands  of  the  state  will 
not  pass  by  purchase  of  the  land.®*  By  condemnation  of  a  right  of  way,  the  in- 
terest obtained  is  the  ownership  of  the  land,®®  so  that  the  company  may  convey, 
to  a  connecting  company,  land  acquired  for  a  right  of  way.''"  Possession  of  a  land- 
owner who  holds  part  of  the  land  taken  for  a  railroad  right  of  way  is  subservient 
to  rights  of  the  company,  unless  it  is  shown  that  it  is  adverse  thereto  with  knowl- 
edge of  the  company.''^  A  railroad  company,  by  taking  land  as  purchaser  from 
one  holding  under  adverse  possession,  received  a  good  title  when  the  combined  ad- 
verse possession  of  it  and  its  grantor  reached  the  statutory  period.''^  A  wagon 
road  laid  out  by  owner  entirely  on  his  own  land  belongs  to  him  as  any  other  land, 
so  that  railroad  company  taking  a  right  of  way  across  such  road  acquires  title  to 
it  as  to  the  remainder.''*  Where  lands  are  condemned  for  a  railroad  water  station, 
the  owner  in  fee  has  no  concurrent  right  of  possession  with  the  company  of  the 
part  of  the  lands  not  actually  used  by  the  company  or  of  any  part  necessary  for 
its  use.'*  Where  a  railroad  company  is  required  to  maintain  waterways  for  own- 
ers whose  lands  it  intersects,  an  owner  has  a  right  of  crossing  appurtenant  to  each 
of  his  divided  tracts  which  is  not  transmitted  to  grantee  of  part  of  lands  lying 
on  one  side  of  the  track.''^  A  settlement  in  proceedings  to  take  a  right  of  way 
by  stipulation,  giving  a  right  of  way  with  no  reservation  as  to  any  land  contained 
therein,  merges  all  prior  agreements  in  such  stipulation,  and  an  oral  agreement 
that  the  owner's  use  of  his  way  as  it  then  existed  would  not  be  disturbed  is  un- 
enforceable.'® A  railroad  company  which  had  located  a  branch  line  on  land  to 
which  it  held  title  partly  by  condemnation,  and  partly  by  deed,  and  of  which  it 
was  in  actual  or  constructive  possession  for  railroad  purposes,  may  restrain  another 
company  from  ousting  it  by  force  under  a  title  from  the  same  person  from  which 
the  first  company  claimed."  On  recovery  by  a  lessee  of  damages  for  construction 
of  an  elevated  railroad  in  front  of  the  leasehold,  the  company  is  entitled  to  a  re- 
lease from  him  including  not  only  the  easement  during  the  existing  term  but  for 


for   land    taken    In    extension    of    a   street — 
Deering  v.  Schreyer,  171  N.  T.  451. 

63.  Deavitt  v.  "Washington  County  (Vt.) 
53    Atl.    563. 

64.  Sexton  v.  Union  Stock  Yard  &  Transit 
Co.,  200  III.  244. 

65.  Rev.  St.  §  3084 — Whalon  v.  North 
Platte  Canal  &  Colonization  Co.  (Wyo.)  71 
Pac.  995. 

ee.  Civ.  Code,  art.  2640 — Fuselier  v.  Po- 
lice Jury,  109  La.  551. 

67.  Gen.  St.  1901,  §  6131— Buckwalter  v. 
School  Dist.  No.  42,  65  Kan.  603,  70  Pac.  60& 

68.  The  railroad  company  may  condemn  a 
right  of  way  after  the  purchase — Lake  "What- 
com Logging  Co.  V.  Callvert  ("Wash.)  73  Pac. 
1128. 

69.  Since    aliens    cannot    hold    such    title 


they   cannot  condemn    (Const,   art.   2,  §   33)  — 
State  V.  Superior  Ct.   (Wash.)  74  Pac.  686. 

70.  Code    1896,    §    1170 — Coyne   v.    "Warrior 
Southern  R.  Co.   (Ala.)   34  So.  1004. 

71.  Chicago.  M.   &  St.  P.   R.  Co.  v.  Snyder 
(Iowa)    95    N.    "W.    183. 

72.  Covert  V.   Pittsburg  &   "W.   R.   Co.,   204 
Pa.   341. 

73.  Charleston  &  "W.  C.  R.  Co.  v.  Fleming 
(Ga.)   45  S.  E.  664. 

74.  Dillon  v.   Kansas  City,  Ft.   S.   &  M.   R. 
Co.    (Kan.)    74  Pac.   251. 

75.  Marino  v.  Central  R.  Co.   (N.  J.  Err.  & 
App.)    56    Atl.    306. 

76.  Chicago.  M.   &  St.  P.   R.  Co.  v.  Snyder 
(Iowa)    95  N.  W.   183. 

77.  Pennsylvania  Co.  v.  Ohio  River  Junc- 
tion R.  Co..   204  Pa.   356. 


§   23 


RELINQUISHMENT  OF  RIGHTS. 


1047 


future  renewals  provided  for.'^^  A  prohibition  against  authorizing  a  street  railway 
company  to  acquire  realty  within  a  city  by  condemnation  does  not  restrict  the 
power  of  eminent  domain  given  by  other  sections  of  the  law  to  corporations  sub- 
ject to  it;  and  relates  only  to  private  property  and  not  to  an  abutting  owner's 
rights  in  the  street."®  The  constitutional  provision  that  the  fee  of  land  taken  for 
highways  shall  remain  in  the  owner  does  not  apply  to  streets  of  a  city  for  the  pur- 
pose to  which  they  have  been  dedicated.^"  The  city  of  New  York  by  condemning 
land  for  a  bridge  over  the  Harlem  river  acquired  title  to  all  lands  taken  necessary 
for  such  construction  and  the  approaches  in  fee  simple  absolute,  but  only  a  title 
in  trust  as  to  lands  taken  for  altering  streets.*^  In  extending  a  street  across  a 
railroad  track,  the  city  acquires  only  a  joint  right  with  the  company  to  use,  allow- 
ing the  company  its  right  to  lay  additional  tracks  as  increase  of  business  may  re- 
quire, provided  it  keeps  the  tracks  occupied  by  the  street  free  and  open  to  public 
use.*^  An  application  to  take  lands  for  a  street  and  to  assess  compensation,  where 
the  proceedings  are  not  amended,  will  give  the  city  the  right  after  judgment  to  use 
the  land  for  all  street  purposes  including  establishment  of  a  reasonable  grade.^^ 

§  22.  Transfer  of  possession  and  passing  of  title. — Wliere  the  report  of  com- 
missioners made  an  award  for  land  and  improvements  taken  for  a  street,  and  a 
resolution  of  the  board  of  street  opening  and  improvement  under  statutory  author- 
ity vested  title  in  the  city  six  months  before,  listing  and  valuation  of  the  property 
for  taxes,  confirmed  after  title  passed,  did  not  make  the  tax  a  lien  on  the  land 
making  the  owner  liable.** 

§  23.  Relinquishment  or  abandonment  of  rights  acquired}^ — A  lease  by  a 
railroad  company  of  land  condemned  for  a  water  station  to  a  fishing  and  boating 
club  with  reservation  of  actual  possession  for  all  purposes  for  which  the  land  was 
taken,  and  the  right  to  cancel  the  lease  on  notice,  is  not  an  abandonment  of  the 
land.®^  On  abandonment  of  a  railroad,  the  property  reverts  to  the  former  owner; 
the  abandonment  must  include  an  intention  to  abandon  as  well  as  an  actual  re- 
linquishment.*'^ On  alteration  in  location  of  an  existing  highway,  a  town  board 
cannot  order  the  bed  of  the  old  highway  to  revert  to  a  particular  person,  where  it 
is  not  shown  that  he  or  his  grantors  have  owned  such  land.**  An  intention  ex- 
pressed by  a  railroad  company  not  to  abandon  a  right  of  way  is  not  conclusive 
evidence  of  such  intention,  but  may  be  considered  in  ejectment  in  connection  with 
acts  of  the  company;  on  the  question  of  abandonment  it  may  be  shown  that  the 
road  was  built  to  haul  goods  and  products  to  and  from  a  mine  now  exhausted. 
^A^lether  there  was  an  intention  to  abandon  the  right  of  way  is  for  the  jury.  An 
instruction  that  the  abandonment  will  give  the  o\\Tier  of  the  fee  right  to  posses- 
sion is  not  misleading  as  omitting  to  mention  the  element  of  intention  in  abandon- 
ment where  other  instructions  clearly  charged  as  to  such  intention.*" 


78.  storms  v.  Manhattan  R.  Co.,  77  App. 
Div.   (N.  Y.)   94. 

79.  Laws  1890,  p.  1108,  C  565.  §  90.  as 
amended  by  Laws  1895,  p.  791,  c.  933 — Sche- 
nectady R.  Co.  V.  Lyon,  85  N.   T.   Supp.   40. 

80.  Const,  art.  6,  §  13,  art.  17,  §  18— Kirby 
V.  Citizens'  Tel.  Co.   (S.  D.)   97  N.  W.  3. 

81.  Laws  1895,  c.  986 — In  re  City  of  New 
York,  174  N.  Y.   26. 

83.  Chicago  &  A.  R.  Co.  v.  Hogan,  105  111. 
App.  136. 

83.  Grant  v.  Hyde  Park,  67  Ohio  St.  166. 

84.  Buckhout  V.  New  York  (N.  Y.)  68  N.  B. 

659. 

85.  Abandonment  of  condemnation  pro- 
ceedings as  to  procedure,  see  ante,  §  8. 


Sufficiency  of  objection  In  ejectment 
against  a  railroad  company  that  employe  of 
the  company  was  not  permitted  to  state  the 
intention  of  the  Company  as  to  abandonment 
of  the  road — Chicago  &  E.  I.  R.  Co.  v.  Clapp, 
201   111.   418. 

86.  Dillon  V  Kansas  City,  Ft.  S.  &  M.  R. 
Co.   (Kan.)   74  Pac.  251. 

87.  Const.  1870,  art.  2,  §  13;  Starr  &  C.'s 
Ann.  St.  p.  113.  2d  Ed. — Chicago  &  E.  I.  R.  Co. 
V.  Clapp,  201  111.  418. 

88.  People  V.  Vandewater,  83  App.  Div. 
(N.  Y.)  60. 

89.  On  evidence  that  it  had  cea«ed  to 
operate  the  road,  had  almost  entirely  removed 
the  tracks,  had  failed  to  keep  up  the  fences. 


1048 


EQUITY. 


EQUITY. 


5  1.     C^eneral     Principles     Controlling     Eq- 

nity. 

§  2.     Equity  Jurisdiction  and  Occasion  for 

Relief.  ,      „ 

A.  In  General;  Relief  at  Law  or  In  Eq- 

uity;  Effect   of  Codes  and   Statutes. 

B.  Principles     and     Maxims     Controlling 

Application  of  Equitable  Relief; 
General  Maxims;  Adequate  Remedy 
at  Law;  Doing  Complete  Justice; 
Multiplicity  of   Suits. 

C.  Occasions   for,   and  Subjects   of,   Equi- 

table Relief. 

§  3.  liaches  and  Acquiescence. — Excusable 
Delay;  Adoption  of  Statutes  of  Limitation. 

§  4.     Practice  and   Procedure   in   General. 

§  5.  Parties. — Bringing  in  New  Parties; 
Intervention. 

S  6.     Pleading. 

A.  General  Rules. 

B.  Original    Bill,    Petition    or   Complaint; 

Bill  or  Petition  Exhibits  as  Part; 
Sufflciency  of  Allegations;  Multi- 
fariousness. 

C.  Amended  and  Supplemental  Bills,  etc. 

D.  Cross-Bill  or  Petition. 

E.  Demurrer;  Grounds;  Effect  of  Demur- 

rer and  Procedure  Thereon. 


F.  Plea. 

G.  Answer;   Verification   and   Sufflciency; 

Effect   as  Answer;   Admissions. 
H.  Replications;    Exceptions;    Motions. 
I.   Issues,   Proof   and   Variance. 
J.  Objections   and   Waiver   Thereof. 
K.  Pleading  Laches   and  Acquiescence. 
§  7.     Taking  Bill  as  Confessed,  or  Default. 
§  8.     Trial    by    Jury    of    Special     Issues.— 
Right  to  Jury  Trial;  Verdict  or  Findings  and 
Effect  Thereof. 

§  9.     Hearing    or    Trial;    Rehearing. 

A.  In  General. 

B.  Dismissal. 

C.  Evidence    and    Its    Introduction;    Ver- 

dicts and  Findings. 
Decree,    Judgment    or    Order. 
In  General;  Requisites  and  Sufficiency. 
Effect  and  Construction. 
Measure  of  Relief. 

Modification  and  Amendment;  Vaca- 
tion and  Setting  Aside;  Collateral 
Attack;  Satisfaction;  Lien  and  En- 
forcement. 

Dill  of  Review. — Time  for  Bill  and 
Laches;  Grounds;  Application  and  Proceed- 
ings. 


§  10. 

A. 
B. 
C. 
D. 


§  11. 


This  topic  will  treat  of  the  general  rules  of  equity  and  of  proceclnre  in  equity 
in  those  states  where  the  adoption  of  a  code  has  not  changed  equitable  forms  and 
procedure,  and  also  such  matters  of  procedure  as  remain  under  the  codes. 


and  had  allowed  the  right  of  way  to  grow  up 
with  weeds — Chicago  &  E.  I.  R.  Co.  v.  Clapp, 
201  111.  418. 

♦Notes  from  "L.  R.  A."  and  "Am.  St.  Rep.," 
classified  according  to  above  analysis. 

§  1.  General  protection  of  rights.  37  L.  R. 
A.  783,  38  L.  R.  A.  240. 

§  2A.  Adoption  by  federal  courts  of  reme- 
dies created  by  state  statutes;  limiting  or  en- 
larginsr  equity  powers  and  jurisdiction.  18  L. 
R.  A.  "266;  24  L.  R.  A.  417;  30  L.  R.  A.  336. 
Federal  equity  jurisdiction.  2  L.  R.  A.  225. 
Protection  of  civil  rights.  10  L.  R.  A.  616. 
Jurisdiction  to  order  foreclosure  sale  of  real- 
ty in  different  states.  32  L.  R.  A.  208.  Con- 
current jurisdiction.    2  L.  R.  A.  175. 

§  2B.  Adequate  remedy  at  law.  6  L.  R.  A. 
855;  11  L.  R.  A.  65.  Coming  into  equity  v.nth 
clean  hands.  2  L.  R.  A.  368;  11  L.  R.  A.  458. 
Doing  equity.  1  L.  R.  A.  863.  Following  the 
law.  4  L.  R.  A.  858;  7  L.  R.  A.  85.  Multiplic- 
ity of  suits.      1  L.  R.  A.  801;  11  L.  R.  A.  207. 

§  2C.  Foreign  corporations.  85  Am.  St.  Rep. 
924.  Enforcement  of  stockholders'  liability. 
37  Am.  St.  Rep.  172.  Corporations  generally. 
9  L.  R.  A.  650.  Discovery  by  stockholder.  3 
Am.  St.  Rep.  86.  Forfeiture  of  corporate 
franchise.  9  L.  R.  A.  273;  8  Am.  St.  Rep.  200. 
Enforcement  of  stockholders'  liability.  3  Am. 
St.  Rep.  808.  Foreclosure  of  liens  on  corpo- 
rate stock.  42  L.  R.  A.  532.  Assignments  of 
expectancies.  56  Am.  St.  Rep.  339.  Equitable 
assignments.  4  L.  R.  A.  247.  Trusts;  enforce- 
ment of  constructive  trust.  38  L.  R.  A.  497. 
Of  voluntary  imperfect  trusts.  34  Am.  St. 
Rep.  196.  Unexecuted  voluntary  trust.  51 
Am.  St.  Rep.  391.  Protection  of  trusts.  35  L. 
R.  A.  175.  Accounts.  4  L.  R.  A.  504.  Refor- 
mation of  instruments;  wills.  50  Am.  St.  Rep. 
283.  Instruments  in  general.  3  L.  R.  A.  189; 
5  L.  R.  A.  156.  Contracts.  65  Am.  St.  Rep. 
481.  Deeds.  65  Am.  St.  Rep.  506.  Cancellation 
of  instruments.    9  Am.   St.   Rep.    777;    9  L.   R. 


A.  200;  36  L.  R.  A.  367;  43  L.  R.  A.  566.  Ad- 
ministration of  estates;  setting  aside  letters. 
81  Am.  St.  Rep.  560.  Care  of  Infants.  7  L.  R. 
A.  534;  54  Am.  St.  Rep.  253.  Relief  against 
mistake.  4  L.  R.  A.  483;  12  L.  R.  A.  273;  32 
Am.  St.  Rep.  385;  24  Am.  St.  Rep.  388;  9  Am. 
St.  Rep.  712;  55  Am.  St.  Rep.  494;  65  Am.  St. 
Rep.  487.  Relief  from  duress.  43  Am.  St.  Rep. 
889;  6  L.  R.  A.  493.  Contest  for  office.  5  L. 
R.  A.  403;  42  Am.  St.  Rep.  236.  Dissolution  of 
partnerships.  69  Am.  St.  Rep.  410.  Foreclosure 
of  liens.  42  L.  R.  A.  532;  74  Am.  St.  Rep.  387. 
Crimes  and  criminal  prosecutions.  35  Am.  St. 
Rep.  670.  Interference  with  discretionary 
power.  8  L.  R.  A.  175.  Interference  in  elec- 
tions. 42  Am.  St.  Rep.  235.  To  prevent  waste. 
11  L.  R.  A.  207.  Relief  against  judgment.  23 
.\m.  St.  Rep.  117;  25  Am.  St.  Rep.  165;  53  Am. 
St.  Rep.  444;  54  Am.  St.  Rep.  218;  30  L.  R.  A. 
498.  Enforcement  of  judgment.  16  L.  R.  A. 
115;  45  L.  R.  A.  285.  Partition.  8  L.  R.  A.  289; 
S8  Am.  St.  Rep.  726.  Matters  of  boundaries. 
18  L.  R.  A.  361;  26  L.  R.  A.  749;  24  Am.  St. 
Rep.  388.  Prevention  of  public  nuisance.  57 
Am.  St.  Rep.  694;  36  L.  R.  A.  593;  12  L.  R.  A. 
753;  9  L.  R.  A.  711.  Relief  from  fraud.  5  L. 
R.  A.  189;  11  L.  R.  A.  65;  2  Am.  St.  Rep.  801. 
Protection  of  insane  persons.  54  Am.  St.  Rep. 
253;  1  L.  R.  A.  610. 

§  3.  Laches.  10  L.  R.  A.  125;  57  L.  R.  A. 
253;  1  L.  R.  A.  191;  8  L.  R.  A.  248;  6  L.  R.  A. 
799;  2  Am.  St.  Rep.  802;  9  Am.  St.  Rep.  530; 
23  Am.  St.  Rep.  149;  54  Am.  St.  Rep.  259;  26 
Am.  St.  Rep.  22;  60  Am.  St.  Rep.  660;  65  Am. 
St.  Rep.  504;  63  Am.  St.  Rep.  475;  2  Am.  St. 
Rep.  799. 

§  4.  33  L.  R.  A.  87.  Federal  courts.  11  L.  R. 
A.  275.  Adoption  by  federal  courts  of  reme- 
dies created  by  state  statutes.  18  L.  R.  A. 
266;  30  L.  R.  A.  336. 

§  5.  3  Am.  St.  Rep.  815;  54  Am.  St.  Rep.  255; 
44  Am.  St.  Rep.  738;  10  Am.  St.  Rep.  646. 


§2 


JURISDICTION. 


1U49 


§  1.  General  principles  controlling  equity. — Courts  of  equity  will  be  liberal 
ratiier  than  strict  in  adapting  their  practice  and  applying  their  jurisdiction  to 
existing  conditions.^ 

§  2.  Equity  jurisdiction  and  occasion  for  relief.  A.  In  general. — Conditions 
existing  when  a  bill  is  filed  and  not  those  which  come  into  existence  later  must 
determine  equitable  jurisdiction.^  Parties  cannot  by  silence  or  consent  confer  it.' 
If  before  trial  the  parties  agree  to  dispense  with  the  necessity  for  granting  relief 
sought,  the  court  will  refusie  to  act.*  If  equity  is  without  jurisdiction  on  an 
original  bill,  it  cannot  take  jurisdiction  on  a  cross  bill  in  the  same  suit."^ 

Where  parties  are  within  the  jurisdiction  of  the  court,  any  suit  may  be  main- 
tained and  remedy  granted  directly  operating  on  the  person  of  def/endant  and 
not  upon  the  subject-miatter,  which  may  be  situated  in  another  state  or  country, 
and  such  decree  may  be  enforced  against  the  person  of  defendant  thus  indirectly 
affecting  his  property  beyond  the  jurisdiction.® 

Courts  of  equity  and  of  law  have  concurrent  jurisdiction  over  certain  matters.' 

The  Federal  equity  jurisdiction  to  give  reliief  is  that  which  equity  had  when 
the  Judiciary  Act  was  adopted.*  Federal  equity  jurisdiction  cannot  be  altered 
by  state  laws  but  substantial  rights  may  be  created  which  the  proper  federal  court 
will  enforce  by  the  proper  remedy,  either  in  equity,  in  admiralty,  or  at  law,®  and 
congress  may  also  create  new  rights  of  action  likewise  enforceable." 


§  6.  Complaint  In  suit  for  relief  from  judg- 
ment. 28  Am.  St.  Rep.  111.  Amendments  to 
pleadings.  51  Am.  St.  Rep.  423.  Supplemental 
bill.  10  L.  R.  A.  298.  Amendments  in  general. 
51  Am.  St.  Rep.  423.  Auxiliary  bills.  3  L.  R. 
A.  189.  Cross  bills.  56  Am.  St.  Rep.  868;  50 
Am.  St.  Rep.  738;  29  L.  R.  A.  263.  Demurrer. 
23  Am.  St.  Rep.  150;  2  Am.  St.  Rep.  807.  Mul- 
tifariousness. 1  Li.  R.  A.  125.  Pleading  lach- 
es.   2  Am.  St.  Rep.  807;  23  Am.  St.  Rep.  150. 

§  8.  Trial  by  jury.  5  L.  R.  A.  226;  18  L.  R. 
A.  646;  15  L.  R.  A.  287;  23  L.  R.  A.  367.  Right 
to  jury  in  actions  against  receivers.  74  Am. 
St.  Rep.  290. 

§  11.  Necessity  of  leave  of  court.  28  L.  R. 
A.  157.  Right  to  file  in  general.  36  L.  R.  A. 
385.    Computing  time  for.    49  L.  R.  A.  226. 

1.  Gibbs  V.  Morgan   (Idaho)   72  Pac.  733. 

2.  Busch  V.  Jones,  184  U.  S.  598,  46  Law. 
Ed.  707. 

3.  Damages  for  trespass — McMillan  v. 
Wiley  (Pla.)  33  So.  993. 

Jurisdiction  in  equity  cannot  be  conferred 
by  estoppel,  based  on  an  order  requiring 
election  between  bill  and  garnishment  pro- 
ceedings— Henderson  v.  Hall,  134  Ala.  455. 

4U  Daugherty  v.  Curtis  (Iowa)  97  N.  W. 
67. 

5.  Metz  V.  McAvoj'  Brew.  Co..  98  111.  App. 
584.  But  the  cross  bill  may  state  a  case  on 
w^hich  the  bill  could  not  have  been  sus- 
tained— Sanders  v.  Riverside  (C.  C.  A.)  118 
Fed.   720. 

6.  Specific  performance  respecting  land  In 
another  state — Barringer  v.  Ryder  (Iowa)  93 
N.  "W.  56.  Where  a  citizen  of  one  state  fur- 
nished to  a  manufacturer  in  another  state  a 
certain  machine,  title  to  remain  in  the  seller 
until  the  price  was  paid,  but  the  agreement 
as  to  title  was  not  recorded  in  the  state 
where  the  machinery  was  located  as  required 
by  its  laws,  and  the  whole  plant  was  after- 
wards attached  under  a  mortgage,  the  court 
In  the  state  of  the  seller's  domicile  had  juris- 
diction   at    the   suit   of   the    assignee   of    the 


mortgage  to  restrain  the  seller  from  remov- 
ing the  machinery  from  the  plant;  this  case 
reviews  many  cases  as  to  territorial  juris- 
diction of  courts  of  equity — Schmaltz  v.  York 
Mfg.  Co.,  204  Pa.  1.  In  a  suit  to  subject 
lands  within  the  state  to  a  claim  for  breach 
of  a  contract  to  convey  land  without  the 
state,  on  service  by  publication,  the  bill  can- 
not be  changed  into  one  for  specific  perform- 
ance, since  the  court  would  have  no  jurisdic- 
tion of  the  subject  matter — McGaw  v.  Gort- 
ner,  96  Md.  489. 

The  county  court  of  one  county  cannot  en- 
tertain a  suit  to  enjoin  judgment  rendered 
by  the  county  court  of  another  county  (Batt's 
Civ.  St.  §  2996) — Aultman  v.  Higbee  (Tex. 
Civ.  App.)   74  S.  W.  955. 

7.  Nuisance — Miller  v.  Edison  Elec.  Il- 
luminating Co.,  78  App.  Div.  (N.  Y.)  390. 
Frauds — Bank  of  Montreal  v.  Waite,  105  111. 
App.  373;  Alton  Grain  Co.  v.  Norton,  Id.,  385. 
Remedy  by  cancellation  not  affected  by  stat- 
utory remedy — Roberts  v.  Central  Lead  Co., 
95  Mo.  App.  581.  Money  received  by  a  bank 
from  one  afterward  adjudged  a  bankrupt 
may  be  recovered  by  his  trustee  in  equity 
under  the  federal  bankruptcy  act  though  he 
might  have  recovered  it  at  law — Gnichtel  v. 
First  Nat.  Bank   (N.  J.  Ch.)   53  Atl.   1041. 

8.  National  Surety  Co.  v.  State  Bank  (C. 
C.  A.)   120  Fed.  593. 

9.  National  Surety  Co.  v.  State  Bank,  120 
Fed.  (C.  C.  A.)  593;  Jones  v.  Mutual  Fidelity 
Co.,  123  Fed.  506.  Creditors'  suit  entertained 
while  probate  proceedings  on  debtors'  estate 
were  pending — Hale  v.  Tyler,  115  Fed.  833. 
Such  statutes  or  decisions  of  state  courts 
can  never  confer  authority  on  a  federal  court 
within  the  state  to  exercise  equitable  juris- 
diction in  actions  at  law — Goodyear  Shoe 
Mach.  Co.  V.  Dancel  (C.  C.  A.)  119  Fed.  692; 
Peck  V.  Ayers  &  L.  Tie  Co.  (C.  C.  A.)  116  Fed! 
273;  United  States  Min.  Co.  v.  Lawson  115 
Fed.  1005. 

In   so  doing  the  legislature   must  preserve 


1050 


EQUITY. 


§  2B 


The  Federal  district  court  sitting  in  bankruptcy  exercises  a  special  and  not 
a  general  chancery  jurisdiction."  The  equity  jurisdiction  of  probate  courts  is 
usually  a  limited  statutory  one.^^ 

The  right  to  proceed  at  law  or  in  equity  may  be  waived.^^  Where  it  has  been 
decided  on  appeal  that  an  action  is  in  equity  the  court  cannot,  in  a  second  trial,  treat 
the  action  as  at  law  and  render  a  judgment  accordingly,  but  must  dismiss  the  ac- 
tion." 

Effect  of  code  or  statutory  provisions. — The  codes  recognize  the  distinction  be- 
tween legal  and  equitable  character  as  distinguished  from  the  form  of  actions.^^ 
Creation  by  statute  of  a  new  equitable  right  or  a  new  application  of  an  equitable 
remedy  does  not  enlarge  the  constitutional  jurisdiction  of  chancery."  Where  the 
code  is  silent  as  to  remedies  furnished  by  the  old  common  law  or  equity  practice, 
they  may  be  employed  in  the  bringing  of  a  cross  suit  if  not  inconsistent  with  the 
code;  and  it  seems  that  though  a  cross  petition  is  more  than  merely  defensive 
and  asks  affirmative  relief,  such  relief  need  not  be  equitable  when  based  on  equitable 
groimds,  but  the  matters  set  up  in  the  cross  petition  must  be  germane  to  the  orig- 
inal suit.^'  Equitable  defenses  may  be  made  in  legal  actions,^^  but  apart  from  stat- 
ute, affirmative  equitable  relief  cannot  be  administered.^^ 

(2)  B.  Principles  and  maxims  controlling  application  of  equitable  relief. 
General  maxims. — No  wrong  will  be  suffered  to  exist  without  a  remedy  in  equity, 
where  the  injury  is  sufficient  to  impress  the  conscience  of  the  chancellor  and  com- 
plainant asks  relief  seasonably.'^* 


right  of  jury  trial — Hudson  v.  Wood,  119 
Fed.  764.  See,  also,  forthcoming  article  Ju- 
risdiction and  article  Courts,  ante. 

10.  U.  S.  Rev.  St.  1979 — Giles  v.  Harris, 
189  U.  S.  475. 

11.  Construction  of  Bankrupt  Act  of  July 
1,  1898,  c.  541,  §  23;  30  Stat.  552,  553  (contro- 
versy between  trustee  and  claimant  of  prop- 
erty)— In  re  Rochford  (C.  C.  A.)  124  Fed. 
182. 

12.  Construction  of  various  statutes  as  to 
the  equity  jurisdiction  of  probate  courts  in 
Massachusetts — Abbott  v.  Gaskins,  181  Mass. 
501.  The  probate  court  of  Illinois  has  no 
general  chancery  jurisdiction,  and  such  chan- 
cery jurisdiction  as  it  has  will  not  divest  oth- 
er courts  of  general  chancery  jurisdiction  of 
the  power  to  act  In  the  same  matters — 
Northern  Trust  Co.  v.  Marsh,  98  111.  App. 
596. 

18.  Answering  to  cross  bill  filed  in  action 
at  law — ^Wollenberg  v.  Rose,  41  Or.  314,  68 
Pac.  804.  Stipulation  that  the  issues  arising 
on  petition  at  law  might  be  tried  on  equity 
side  with  those  on  the  cross-bill — Shehan  v. 
Stuart,  117  Iowa,  207.  Suing  in  equity  in- 
stead of  at  law  for  trespasses  plaintiff  waives 
his  statutory  right  to  put  defendant  to  con- 
demnation proceedings  and  a  jury  trial — 
Westphal  v.  New  York,  75  App.  Div.  (N.  Y.) 
252. 

14.  Porter  v.  International  Bridge  Co.,  79 
App.  Dlv.  (N.  Y.)  358. 

15.  Character  of  action  under  code  as  de- 
termining right  to  jury  trial — New  Harmony 
Lodge  v.  Kansas  City,  etc.,  R.  Co.  (Mo.  App.) 
74  S.  W.  5.  Effect  of  amended  petition  In  in- 
junction to  restrain  trespass  as  changing 
suit  to  action  of  trespass  to  try  title  main- 
tainable only  in  county  w^here  land  is  sit- 
uate— Fant  V.  Kenedy  Pasture  Co.   (Tex.  Civ. 


App.)  69  S.  W.  420.  In  California,  a  proceed- 
ing to  revoke  probate  of  a  will  cannot  be 
changed  into  a  proceeding  in  equity  to  de- 
clare a  trust — In  re  Davis'  Estate,  136  Cal. 
590,  69  Pac.  412.  An  action  to  foreclose  a 
lien  on  property  pledged  as  security  for 
money  loaned  is  inconsistent  and  cannot  be 
joined  with  another  to  recover  on  a  claim 
assigned  to  plaintiff  for  services  rendered  by 
a  third  person  (Code  Civ.  Proc.  §  484) — Conde 
V.  Rogers,  74  App.  Div.  (N.  Y.)  147.  Eject- 
ment, and  count  asking  the  court  to  ascer- 
tain and  declare  the  title,  may  be  joined 
(Rev.  St.  1899,  §  593) — Lane  v.  Dowd.  172  Mo. 
167. 

Where  a  cross  bill  In  an  action  to  recover 
rent  of  premises  asks  a  cancellation  of  the 
lease,  it  is  a  suit  in  equitj''  wherein  equitable 
principles  will  control  relief — Lincoln  Trust 
Co.  V.  Nathan   (Mo.)   74  S.  W.  1007. 

16.  A  statute  autliorizing  the  state  board 
of  health  to  restrain  continuance  of  the  dis- 
charge of  sewage  or  other  pollution  into  a 
stream.  The  reason  for  the  act  is  that  the 
legal  remedy  has  been  found  inadequate 
(Act  1899.  Pub.  Laws,  p.  73) — State  v.  Dia- 
mond Mills  Paper  Co.  (N.  J.  Ch.)  51  Atl.  1019. 

17.  Armstrong  v.  Mayer  (Neb.)  95  N.  V7. 
51. 

18.  Defense  of  mistake  (Code  Civ.  Proc.  § 
507) — Madison  v.  Benedict,  73  App.  Div.  (N. 
Y.)   112. 

19.  Damages  from  tort  cannot  be  set  off 
in  an  action  on  contract,  because  of  insolv- 
ency or  non-residence  of  plaintiff,  where  the 
jurisdiction  of  the  court  to  hear  equitable 
defenses  does  not  include  the  recognition  of 
such  right  and  the  award  of  affirmative  re- 
lief — Hecht  v.  Smook  &  A.  Furniture  Co.,  114 
Ga.  921. 

20.  Balch  V.   Beach   (Wis.)   95  N.  W.  132. 


§  2B 


JURISDICTION;  MAXIMS. 


1051 


He  who  comes  into  equity  must  come  with  clean  hands,^^  but  the  rule  appliea 
only  to  a  complainant  whose  misconduct  is  the  basis  for  his  request  for  relief  in 
the  particular  transaction.^^ 

He  who  seeks  equity  must  do  equity.^^     Compensation  for  a  taking  of  prop- 


21.  Balch  V.  Beach  (Wis.)  95  N.  W.  132; 
Trice  v.  Comstock  (C.  C.  A.)   121  Fed.  620. 

Relief  denied.  To  assist  business  in  vio- 
lation of  Const,  art.  1,  §  9,  against  pool  sell- 
ing or  g-ambling — Maxim  v.  Sheehan,  37  Misc. 
(N.  Y.)  368.  Complainant  guilty  of  the  same 
misconduct  with  which  he  charges  respond- 
ent— Edward  Thompson  Co.  v.  American  Law 
Book  Co.  (C.  C.  A.)  122  Fed.  922.  One  who 
seeks  to  avail  himself  of  a  crime  whether 
he  or  another  committed  the  crime — Bank 
of  Montreal  v.  Waite,  105  111.  App.  373;  Alton 
Grain  Co.  v.  Norton,  Id.,  385.  Contracting  to 
make  defendant  a  free  holder  so  as  to  en- 
able him  to  sign  appearance  bonds  for  pay  to 
be  divided  between  them — Bacon  v.  Early, 
116  Iowa,  532.  Procuring  attachment  by  a 
creditor  to  prevent  attachment  by  other 
creditors — Moore  v.  Hemp's  Ex'rs,  24  Ky.  L. 
R.  121,  68  S.  W.  1.  Bucket  shop  trades  in 
futures  obnoxious  to  law — Board  of  Trade  v. 
O'Dell  Commission  Co.,  115  Fed.  574. 

Lessee  claiming  under  lease  against  public 
policy  as  forfeiting  franchise  of  railroad — 
Brooklyn,  etc.,  R.  Co.  v.  Long  Island  R.  Co., 
72  App.  Div.  (N.  T.)  496.  Where  abatement  of 
stock  pens  is  sought  as  a  nuisance,  it  can- 
not be  enjoined  by  defendants  thereto, 
though  plaintiffs  in  the  abatement  have  no 
authority  to  have  them  abated — Pittsburgh, 
etc.,  R.  Co.  v.  Crothersville,  159  Ind.  330. 
Where  an  attorney  obtained  leave  to  sell  the 
land  of  a  decedent  to  pay  debts,  which  had 
formerly  been  mortgaged  by  the  administra- 
tor for  the  same  purpose  under  representa- 
tions that  a  larger  amount  of  debts  was  ow- 
ing than  actually  existed,  and  misstating  the 
interests  of  the  mortgagee  in  the  property, 
and  secured  a  license  to  sell  without  statu- 
tory notice,  purchasing  the  property  himself 
for  an  amount  agreed  upon  with  the  admin- 
istrator, he  cannot  secure  cancellation  of  a 
mortgage  given  by  the  executor  as  a  cloud  on 
title — Snow  v.  Blount,  182  Mass.  489.  Usu- 
rious payments  on  mortgage  sought  to  be 
foreclosed — Interstate  Sav.  &  Loan  Ass'n  v. 
Badgley,  115  Fed.  390.  Excessive  claim  in 
suit  to  enforce  lien — Camden  Iron  Works  v. 
Camden,  64  N.  J.  Eq.  723. 

Both  parties  equally  guilty  (fraud  on 
creditors) — Edgell  v.  Smith,  50  W.  Va.  349; 
Bagwell  V.  Johnson,  116  Ga.  464.  Contract 
concerning  the  sales  of  lands,  whereby  they 
were  to  sell  the  land  secretly  so  as  to  de- 
fraud the  owner — Trice  v.  Comstock,  115  Fed. 
765. 

Query.  Whether  the  holder  of  a  contract 
purporting  to  be  for  the  purchase  and  sale 
of  a  diamond  issued  by  what  is  commonly 
called  a  tontine  company  can  come  into 
equity  with  clean  hands — Mann  v.  German- 
American  Inv.  Co.   (Neb.)    97  N.  W.   600. 

22.  Trice  V.  Comstock  (C.  C.  A.)  121  Fed. 
620.  In  a  suit  to  restrain  the  erection  of 
windows  over  a  sidewalk,  complainants  are 
not  barred  by  relief  because  they  themselves 
have  erected  obstructions  over  the  sidewalk 
— Anisfield  v.  Grossman,  98  111.  App.  180.  A 
debtor  may  apply  to  a  court  of  equity  for 
relief  against  usury  when  he  has  paid  fully 


his  lawful  Indebtedness — Bell  v.  Mulholland, 
90  Mo.  App.  612.  Where  a  combination  of  rail- 
road companies  forming  a  passenger  associa- 
tion violates  the  federal  anti-trust  law  it  is 
not  so  directly  connected  with  the  contract 
of  a  ticket  buyer  that  a  railroad  company 
in  the  association  will  be  refused  equitable 
relief  In  restraint  of  third  persons  from  deal- 
ing in  tickets  in  violation  of  the  contract — 
Kinner  v.  Lake  Shore,  etc.,  R.  Co.,  23  Ohio 
Circ.  R.  294. 

23.  Complainant  must  acknowledge  all 
equitable  rights  justly  belonging  to  the  ad- 
verse party  necessarily  involved  in  the  sub- 
ject matter  of  the  suit — Wenham  v.  Mallin, 
103  111.  App.  609.  Stockholder  suing  on  re- 
fusal of  directors  must  show  that  the  result 
of  the  action  will  not  be  inequitable — Sieg- 
man  v.  Maloney,  63  N.  J.  Eq.  422.  Payment 
of  debts  to  trustee  of  homestead  when  ask- 
ing enforcement  of  reconveyance — Walsh  v. 
Walsh  (Neb.)  95  N.  W.  1024.  Offer  to  allow 
redemption  not  required  from  execution 
creditor  suing  to  quiet  title  under  sheriff's 
deed — Worthington  v.  Miller,  134  Ala.  420. 
An  attorney  who  obtained  leave  to  sell  the 
land  of  a  decedent  to  pay  debts,  and  by 
agreement  bought  it  was  required  to  do 
equity  to  a  mortgagee  claiming  under  a 
mortgage  by  the  representative  for  an  excess- 
ive amount — Snow  v.  Blount,  182  Mass.  489. 
An  agreement  between  the  parties  to  a  suit 
in  equity  that  on  certain  consideration  de- 
fendant would  pay  two  notes,  held  not  fair 
and  equal  w^hen  it  did  not  provide  for  the 
surrender  of  outstanding  notes  and  bond — 
Cook  V.  easier,  83  N.  Y.  Supp.  1045. 

Surrender  of  losses  paid  to  tenant  <or 
burned  fixtures  held  not  necessary  on  re- 
scission of  lease  when  that  question  is  not 
reached  by  issues  made — Lincoln  Trust  Co. 
V.  Nathan   (Mo.)  74  S.  W.  1007. 

Where  the  distinction  between  legal  and 
equitable  rights  is  strictly  preserved,  estop- 
pel in  pais  is  not  available  at  law  (Grubb.a 
v.  Boon,  201  111.  98;  Haney  v.  Breeden  [Va.] 
42  S.  E.  916;  Wakefield  v.  Van  Tassell,  202 
111.   41),  but  the  general  rule  is  otherwise. 

Returning  consideration  or  benefits.  A  re- 
scinding vendee  need  not  return  the  prop- 
erty in  the  condition  in  which  it  was  re- 
ceived— Bell  V.  Felt,  102  111.  App.  218.  Re- 
turning moneys  to  which  party  not  entitled 
— Lincoln  Trust  Co.  v.  Nathan  (Mo.)  74  S. 
W.  1007.  Benefits  received  by  heir  under 
agreement  with  administrator — Holmes  v. 
Columbia  Nat.  Bank  (Neb.)  97  N.  W.  26. 
Difference  between  real  value  of  services 
rendered  under  employment  by  corporation 
from  which  the  stock  was  purchased,  and  the 
amount  plaintiff  received  therefor,  (suit  to 
rescind  sale  of  stock) — Deppen  v.  German- 
American  Title  Co.,  24  Ky.  L.  R.  1110,  70  S 
W.  868. 

Duty  to  conflicting  claimant.s,  lienors,  etc. 
Interest  must  be  paid  on  moneys  of  other 
parties  retained  by  suitor — Weber  v.  Zach- 
arias,  105  111.  App.  640. 

Discharge  of  debt  secured  by  mortgage  on 
fraudulently  conveyed  property  sought  to  be 


1052 


EQUITY. 


§  2B 


ei-ty  may  be  offered  as  equity  in  a  suit  respecting  a  stream  and  persons  injured 
need  not  be  remitted  to  the  legal  remedy.^* 

Equity  follows  the  law.-^ 

Equity  will  not  attempt  to  give  relief  where  it  would  be  futile.-®  The  right 
sought  to  be  enforced  must  be  valuable.^^ 

Existence  of  an  adequate  remedy  at  law  will  render  equitable  interference 
imnecessary  and  improper,-^  unless  the  legal  and  equitable  remedies  are  concur- 
rent;-^ even  then  equity  will  refuse  to  act  if  the  law  court  has  already  taken 
jurisdiction.^"  The  application  of  the  rule  depends  upon  the  particular  circum- 
stances of  each  case/^  and  rests  in  the  sound  discretion  ol  the  court  where  circum- 


subjected  to  complainant's  judgment — Tay- 
lor V.  Dwyer,  131  Ala.  91.  Offer  to  pay  taxes 
and  penalties  with  interest  on  redeeming 
from  tax  sale — South  Chicago  Brew.  Co.  v. 
Taylor   (111.)   68  N.  E.  732. 

34.  Rights  of  riparian  owners  damaged  by 
making  irrigation  ditch — Crawford  Co.  v. 
Hathaway  (Neb.)   93  N.  W.  781. 

25.  As  to  the  statute  of  limitations — 
Parmelee  v.  Price,  105  111.  App.  271;  Kale  v. 
Coffin  (C.  C.  A.)  120  Fed.  470;  Crawford  v. 
V^^atkins  (Ga.)  45  S.  B.  482;  Mantle  v.  Specu- 
lator Min.  Co.,  27  Mont.  473,  71  Pac.  665.  As 
to  a  legal  demand  sued  on  in  equity — Sibley 
V.  Stacey  (W.  Va.)  44  S.  E.  420;  Boynton  v. 
Haggart  (C.  C.  A.)  120  Fed.  819;  Sioux  City 
&  St.  P.  R.  Co.  V.  O'Brien  County,  118  Iowa, 
582;  Newberger  v.  "Wells,  51  W.  Va.  624. 
However  see  Ide  v.  Trorlicht,  etc..  Carpet 
Co.  (C.  C.  A.)  115  Fed.  137;  "Wall  v.  Meilke 
(Minn.)  94  N.  "W.  688;  State  v.  Dashiele  (Tex. 
Civ.  App.)    74  S.  "W.  779. 

26.  The  inadequacy  of  its  relief  by  decree 
will  prevent  a  court  of  equity  from  compel- 
ling a  county  board  of  registrars  to  enroll 
negro  on  the  voting  lists  where  the  refusal 
to  register  is  alleged  to  be  part  of  a  general 
scheme  by  the  whites  of  the  state  and  the 
state  to  disfranchise  the  negroes — Giles  v. 
Harris,  189  U.  S.  475. 

27.  The  amount  of  $3.55  which  will  be 
considerably  reduced  by  later  circumstances, 
is  too  small  to  justify  the  interference  of  a 
court  of  equity — Tanner  v.  Nelson,  25  Utah, 
226,  70  Pac.   984. 

28.  Sharpe  v.  Hodges,  116  Ga.  795;  Shene- 
hon  V.  Illinois  Life  Ins.  Co.,  100  111.  App.  281. 
Protection  of  irrigation  rights — CraTvford  Co. 
V.  Hathaway  (Neb.)  93  N.  W.  781.  Definition 
of  adequate  remedy  at  law — Carter  v.  "V\^ar- 
ner  (Neb.)  89  N.  "W.  747;  Keplinger  v.  "Wool- 
sey   (Neb.)   93  N.  "W.  1008. 

29.  To  cancel  an  instrument— ^Roberts  v. 
Central  Lead  Co.,  95  Mo.  App.  581.  Probate 
courts — Northern  Trust  Co.  v.  Marsh,  98  111. 
App.  596.  Nuisances — Miller  v.  Edison  Elec. 
Illuminating  Co.,  78  App.  Div.  (N.  Y.)  390. 
Questions  of  fraud — Bank  of  Montreal  v. 
Waite,  105  111.  App.  373;  Alton  Grain  Co.  v. 
Norton.  Id.,  385.  On  equity  iurisdiction  of 
Massachusetts  probate  courts — Abbott  v. 
Gaskins,  181  Mass.  501.  That  the  statutes  of 
a  state  give  complainant  a  legal  remedy  in  its 
courts  which  did  not  exist  at  common  law 
will  not  prevent  a  federal  court  of  equity 
from  taking  jurisdiction — Peck  v.  Ayers  & 
L.  Tie  Co.  (C.  C.  A.)  116  Fed.  273.  Cancella- 
tion of  a  release  of  damages  for  personal  in- 
juries, obtained  by  fraud  in  equity,  will  not 
be  prevented  by  an  enactment  of  a  statute 
giving  a  remedy  at  law — Roberts  v.  Central 
Lead  Co.,  95  Mo.  App.  581. 

"Whether    the    procedure    shall    be    in    one 


court  or  another  depends  absolutely  on  the 
object  of  the  suit  and  the  nature  of  the  re- 
lief sought,  so  that  if  the  procedure  and  the 
relief  are  essentially  equitable,  it  does  not 
matter  that  they  bear  relation  to  a  legal 
demand — Jones  v.  Mutual  Fidelity  Co..  123 
Fed.  506. 

Code  remedies  may  embrace  both  equitable 
and  legal  relief  and  be  in  addition  to  legal 
remedies  strictly  speaking,  e.  g. :  remedy  to 
"ascertain"  and  "quiet"  title  to  land  (Code 
Civ.  Proc.  §  1310) — Montana  Ore-Purchasing 
Co.  V.  Boston  &  M.  Consol.  Copper  &  Silver 
Min.  Co.,  27  Mont.  288,  70  Pac.  1114.  In  Mis- 
souri under  the  statute,  a  suit  in  equity  to 
remove  a  cloud  on  title  may  be  maintained 
by  one  not  in  possession — Field  v.  Barber 
Asphalt  Co.,  117  Fed.   925. 

30.  Matters  of  complex  or  mutual  ac- 
counts and  claims  arising  out  of  fiduciary 
relations  which  are  already  in  litigation  at 
law — Nash  v.  McCathern,  183  Mass.   345. 

31.     EQUITABLE   RELIEF  DENIED. 

Cases  In  -which  the  legal  remedy  Is  held 
to  be  adequate.  "Where  an  action  at  law  la 
brought  against  attorneys  to  recover  money 
retained  by  them  as  fees  from  the  proceeds 
of  prior  litigation,  they  have  an  adequate 
remedy  at  law  to  determine  their  fees,  in 
the  action  against  them — German  v.  Browne 
(Ala.)  34  So.  985.  "Where  damages  will  fully 
compensate  complainant  and  no  multiplicity 
of  suits  Is  threatened  jurisdiction  will  be 
refused — "Wabash  R.  Co.  v.  Engleman  (Ind.) 
66  N.  E.  892.  Injunction  against  an  action 
by  a  guardian  (adequate  remedy  by  appeal 
from  the  order  of  appointment  by  the  pro- 
bate court) — "W^hite  v.  Strong,  75  Conn.  308. 
In  an  action  to  enforce  a  lien  against  a 
town  collector  and  his  sureties  one  of  whom 
is  dead,  the  administrator  may  defend  upon 
the  ground  that  there  is  an  adequate  rem- 
edy at  law,  where  the  complaint  alleges  that 
they  claimed  an  interest  in  the  premises 
which  accrued  subsequently  to  the  lien  of 
the  tax  collector's  bond — Chatfield  v.  Rodger, 
75  App.  Div.  (N.  T.)  631.  A  1  ill  to  prevent 
diversion  of  water  from  a  i  anal  will  be 
dismissed  to  leave  plaintiff  to  his  remedy  at 
law,  where  it  appears  that,  at  the  time  of 
filing,  his  business  had  been  destroyed  by 
certain  combinations,  that  he  had  long  de- 
layed in  asserting  his  right,  that  the  dam- 
age was  trifling,  if  any,  and  that  defendant 
had  made  improvements  greatly  increasing 
the  capacity  of  the  canal — Stewart  "V\'ire  Co. 
V.  Lehigh  Coal  &  Nav.  Co.,  203  Pa.  474. 
Equity  will  not  interfere  with  eminent  do- 
main proceedings  by  a  city  to  acquire  an 
easement  along  a  creek  where,  under  the 
city  charter  and  the  Code  of  the  state,  phiin- 
tiff  has   an  ample   remedy   by  interposing   in 


§  2B 


ADEQUATE  REMEDY  AT  LAW. 


1053 


stances  appear  showing  that  the  legal  remedy  may  not  be  complete.^^     The  rule  is 


the  proceedings — Hooker  v.  Rochester,  172 
N.  Y.  665.  The  federal  court  will  not  enter- 
tain a  suit  seeking-  discovery  and  relief 
where  the  only  ground  for  equity  is  discov- 
ery of  evidence  to  be  used  in  enforcing  a 
legal  demand — Safford  v.  Ensign  Mfg.  Co. 
(C.   C.   A.)    120  Fed.    480. 

A  suit  may  be  brought  to  determine  which 
of  several  claimants  is  entitled  to  the  award 
for  land  condemned  by  a  city  for  a  street, 
since  the  title  to  the  property  passes  to  the 
city  and  the  action  is  not  to  determine  title 
to  land — Gardner  v.  Baltimore  (Md.)  54  Atl. 
85. 

Contracts.  Absence  of  fraud  or  mistake — 
Bank  v.  Belington  Coal  Co.,  51  W.  Va.  60. 
Discharge  of  servant  from  employment — 
Boyer  v.  Western  Union  Tel.  Co.,  124  Fed. 
24  6.  Breach  of  a  contract  to  sell  a  certain 
commodity — Mundy  v.  Brooks,  204  Pa.  232. 
Breach  of  sale  of  standing  timber  by  denial 
of  license  to  enter  (Under  Code  1896,  §  S09) 
— Inglis  V.  Freeman  (Ala.)  34  So.  394.  Fail- 
ure to  deliver  goods  sold  (injunction  asked 
against  sale  to  others) — New  Hartford  Can- 
ning Co.  v.  Bulifant.  78  App.  Div.  (N.  T.)  6. 
A  written  contract  will  not  be  construed  in 
equity,  nor  damages  granted  for  its  breach, 
where  a  reformation  is  not  asked  and  neither 
fraud  nor  mistake  is  alleged — Clarke  v. 
Shirk  (C.  C.  A.)  121  Fed.  340.  Where  the 
right  to  a  lien  was  lost  through  bad  faith, 
a  suit  for  breach  of  contract  and  foreclosure 
of  the  lien  will  be  dismissed,  leaving  plain- 
tiffs to  their  remedy  at  law — Robinson  v. 
Brooks,  31  Wash.  60,  71  Pac.  721.  Speciflo 
performance  of  a  verbal  contract  leasing  an 
office  for  a  term  of  years  will  not  be  decreed 
after  part  performance  where  the  lessee 
asking  relief  did  nothing  which  may  not 
readily  be  compensated  for  by  an  action  for 
damages — Henley  v.  Cottrell  Real  Estate, 
etc.,  Co.  (Va.)  43  S.  E.  191.  After  one  part- 
ner sells  his  interest  to  the  other,  under  the 
latter's  agreement  to  pay  the  debts  he  is 
not  entitled  to  maintain  a  suit  in  equity  for 
enforcement  of  the  contract  and  an  account- 
ing, unless  he  shows  fraud,  there  being  an 
adequate  remedy  at  law — Pace  v.  Smith  (Ala.) 
34  So.  1006.  Defense  cognizable  at  law  In 
action  on  insurance  policy  will  prevent  a 
suit  In  equity  for  its  cancellation — Mutual 
Life  Ins.  Co.  v.  Pearson,  114  Fed.  395;  Shene- 
hon  V.  Illinois  Life  Ins.  Co.,  100  111.  App.  281. 

Acconntius.  No  showing  of  mutual,  in- 
tricate or  complicated  account  or  other 
ground  invoking  equity  (American  Spirits 
Mfg.  Co.  V.  Easton,  120  Fed.  440),  or  that 
the  contract  provided  for  such  accounting — 
Lee  V.  Washburn,  80  App.  Div.  (N.  Y.)  410. 
A  complaint  alleging  that  plaintiff  was  em- 
ployed as  promoter,  held  insufficient — Ever- 
ett v.  De  Fontaine,  78  App.  Div.   (N.  Y.)    219. 

Risht  of  property  or  possession.  Defend- 
ant in  replevin  when  prevented  pending  ac- 
tion from  exercising  dominion  may  try  his 
right  before  a  jury — Jones  v.  MacKenzie  (C. 
C.  A.)  122  Fed.  390.  In  a  suit  to  recover  pos- 
session of  a  deed  returned  to  the  grantor  to 
be  corrected  after  delivery  to  the  grantee, 
on  his  refusal  to  return  will  not  lie,  unless 
there  Is  no  adequate  remedy  at  law,  and 
claim  and  delivery  or  an  action  to  determine 


adverse  claims  may  be  maintained  by  the 
grantee — Barkey  v.  Johnson  (Minn.)  95  N. 
W.    583. 

Remedy  by  ejectment — Lasswell  v.  Kitt 
(N.  M.)  70  Pac.  561.  If  there  is  no  equity 
in  the  cause  of  one  seeking  an  injunction, 
against  erection  of  a  building  on  land  the 
presence  of  defects  in  the  title  on  which 
the  other  party  relies  has  no  significance — 
Dobleman  v.  Gately,  64  N.  J.  Eq.  223.  A  bill 
to  cancel  or  remove  a  cloud  on  title  cannot 
be  maintained  by  one  not  in  possession- — 
Neff  V.  Ryman  (Va.)  42  S.  E.  314;  Tread- 
well  v.  Torbert.  133  Ala.  504.  Incompetency 
of  suitor  makes  no  difference — Wilkinson  v. 
^'ilkinson,  129  Ala.  279;  Galloway  v.  Hendon. 
131  Ala.  280.  Nor  can  he  regain  possession 
so  as  to  sue  In  equity  by  leasing  to  tenants 
of  the  grantee — Treadwell  v.  Torbert,  133 
Ala.  504. 

Forcible  dispossession  of  one  In  possession 
under  a  deed  purporting  to  convey  the 
legal  title — David  v.  Levy,   119   Fed.   799. 

Deed  absolutely  void  for  insanity  of  the 
grantor — Boddie  v.  Bush,  136  Ala.  560.  En- 
forcement of  condition  precedent  in  a  deed 
— Davison  v.  Davison,  71  N.  H.  180.  In- 
validity of  deed  to  homestead  by  insane  hus- 
band and  not  joined  in  by  wife — Larson  v. 
Larson  (Miss.)  33  So.  717;  Letohatchie  Bap- 
tist Church  V.  Bullock,  133  Ala.  549.  Title 
and  boundary  of  land  as  between  adverse 
claimants — Freer  v.  Davis  (W.  Va.)  43  S. 
E.  164.  Protection  of  wharfage  rights  along 
the  line  of  their  abutting  property,  which 
was  recognized  by  custom  and  the  statute 
and  organic  law  of  the  state — Turner  v.  Mo- 
bile, 135  Ala.  73.  Violation  of  the  terms  of 
a  deed  granting  an  easement  for  right  of 
way  to  a  railroad  company  by  the  erection 
of  a  trestle  above  the  grade  as  required  by 
the  state  railroad  commissioner,  will  not 
entitle  the  grantor  of  the  easement  to  a 
decree  compelling  the  removal  of  the  track 
and  abandonment  of  the  road,  but  only  to 
pecuniary  damages — Lane  v.  Michigan  Trac- 
tion Co.  (Mich.)  97  N.  W.  354.  The  prosecu- 
tion of  several  actions  for  injuries  to  land 
on  the  ground  that  defendant  wiH  require 
discovery  as  to  title  and  interest  of  each 
complainant  will  not  be  restrained  in  equity 
(Shannon's  Code,  §  5684  authorizes  discov- 
ery in  suits  at  law) — Ducktown  Sulphur, 
Copper  &  Iron  Co.  v.  Fain,  109  Tenn.   56. 

Torts  or  criminal  acts.  Equity  will  not 
interfere  where  a  tort  only  has  been  com- 
mitted— Sheriff  v.  Turner,  119  Fed.  782.  Vio- 
lation of  penal  laws  will  not  be  prevented 
at  suit  of  one  seeking  merely  to  restrain  a 
rival  In  business  (York  v.  Yzaguairre  [Tex. 
Civ.  App.]  71  S.  W.  563);  nor  to  prevent 
criminal  acts  merely  because  the  proper  offi- 
cers have  neglected  or  refused  to  perform 
their  duty  in  enforcing  the  law;  or  a  public 
nuisance  on  the  ground  that  the  criminal 
laws  as  administered  do  not  meet  the  re- 
quirements unless  it  clearly  appears  that 
injury  will  result  to  public  civil  rights  or 
property — People  v.  Condon,  102  111.  App. 
449. 

Where  property  is  not  taken  directly  for 
public  purpose,  but  suffers  Injury  as  to  rights 
incidental   to    its    peculiar   situation    or    posi- 


1054 


EQUITY. 


§  2B 


not  to  be  carried  out  so  strictly  as  to  deny  any  party  reasonable  means. for  en- 
forcing legal  or  equitable  rights.^*     To  remit  complainant  to  law  his  damages 


tion,  so  that  condemnation  proceedings  and 
payment  of  damages  in  advance  are  not 
practicable,  the  owner  will  be  left  to  his 
remedy  at  law  and  will  not  be  granted  an 
injunction  unless  for  insolvency  or  other 
special  circumstances — Bronson  v.  Albion 
Tel.  Co.   (Neb.)    93  N.  W.   201. 

Trespass.  One  out  of  possession — Gilder- 
sleeve  V.  Overstolz,  97  Mo.  App.  303.  Re- 
peated trespass,  where  plaintiff  holds  the 
legal  title — Thomas  v.  Robinson  (Iowa)  92 
N.  W.  70.  Unnecessary  encroachment  on  a 
toll  road  by  an  electric  railroad — Detroit  & 
B.  Plankroad  Co.  v.  Oakland  R.  Co.  (Mich.) 
92  N.  W.  346.  Acts  of  trespass  confined  to 
the  driving  of  a  few  stakes  by  surveyor — 
Wabash  R.  Co.  v.  Engleman  (Ind.)  66  N. 
E.  892.  Entry  by  solvent  person  and  the 
sinking  of  shafts  and  carrying  away  of 
samples  of  ore.  the  substance  of  the  estate 
being  not  materially  injured — Harley  v.  Mon- 
tana Ore  Purchasing  Co..  27  Mont.  388,  71 
Pac.    407. 

Penalties.  An  equitable  action  to  cancel 
a  chattel  mortgage  which  has  been  paid  can- 
not be  based  upon  a  claim  for  the  statutory 
penalty  for  failure  to  release  other  chattel 
mortgages  unpaid  and  not  reduced  to  judg- 
ment. The  penalty  should  be  recovered  at 
law  before  being  made  the  foundation  of  an 
equitable  proceeding  for  cancellation  of  the 
lien— Meredith  v.  Lyon    (Neb.)    92  N.  W.   122. 

Suits  pertaining  to  public  office.  Removal 
from,  or  right  to  office — Marshall  v.  Board  of 
Managers,  201  111.  9.  Appointment  of  pub- 
lic officers  or  their  title  to  office — Landes  v. 
Walls  (Ind.)  66  N.  E.  679.  Quo  warranto 
and  not  a  suit  in  equity  is  the  proper  rem- 
edy for  preventing  a  de  facto  officer  from 
performing  the  duties  of  the  office — Deemar 
V.  Boyne,  103  111.  App.  464.  Equity  will  not 
interfere  by  injunction  to  test  the  validity 
of  the  action  of  the  mayor  and  council  of 
the  city  in  removing  a  city  attorney  for  mis- 
("onduct  or  in  recognizing  his  successor — 
Howe  V.  Dunlap  (Okl.)  72  Pac.  365.  The 
mayor  of  a  city  cannot  restrain  impeach- 
ment proceedings  and  his  removal  from  of- 
fice as  against  the  aldermen  and  city  coun- 
cil, since  he  has  an  adequate  remedy  at  law 
to  protect  his  title  to  office — Riggins  v. 
Thompson   (Tex.  Civ.  App.)   70  S.  W.  578. 

Existence  and  powers  of  municipal  cor- 
porations. Relief  from  ultra  vires  dealings 
of  municipal  corporations — Balch  v.  Beach 
(Wis.)  95  N.  W.  132.  Legality  of  organiza- 
tion of  a  school  district  cannot  be  attacked 
in  equitv,  the  proper  remedy  being  quo  war- 
ranto—School  Dist.  No.  4  V.  Smith,  90  Mo. 
App.  215.  A  federal  court  of  equity  cannot 
entertain  a  suit  by  holders  of  warrants  is- 
sued by  the  board  of  Metropolitan  police  of 
New  Orleans,  to  enforce  payment  by  the 
city  from  a  fund  required  to  be  raised  by 
taxation  under  the  apportionment  to  the 
oity  by  the  board  of  its  share  of  expense  in 
policing  the  district  except  as  ancillary  to 
a  judgment  at  law  against  the  city,  and  even 
then  It  will  only  apply  to  taxes  collected. 
The  creditors  have  an  action  at  law  against 
the  city  notwithstanding  the  act  of  1877 
(see  New  Orleans  v.  Benjamin,  153  U.  S.  411.) 
-■RJmshelmer  v.   New   Orleans.    116    Fed.    893. 


Remedies  against  corporations  or  stock- 
holders. Dispute  as  to  corporate  office — 
Standard  Gold  Min.  Co.  v.  Byers,  31  Wash. 
100,  71  Pac.  766.  Management  of  a  corpora- 
tion will  not  be  interfered  with  in  absence 
of  fraud  or  collusion  or  ultra  vires  acts  on 
the  part  of  the  managing  officers — Coss  v. 
Herring,  24  Ohio  Circ.  R.  36.  Where  stock 
subscribers  sold  their  stock  to  a  nonresi- 
dent with  intent  to  defraud  the  corporation 
and  its  creditors  and  without  reason  to  be- 
lieve that  the  purchaser  would  be  able  to 
pay  the  subscription  notes,  a  judgment  cred- 
itor of  the  corporation  could  not  sue  in 
equity  to  compel  them  to  pay  their  subscrip- 
tion notes  because  there  was  an  adequate 
remedy  at  law  by  garnishment — Henderson 
V.  Hall,  134  Ala.  455.  The  remedy  at  law  is 
sufficient  to  prevent  jurisdiction  of  a  bill 
asking  for  a  temporary  injunction  on  behalf 
of  a  non-assenting  holder  of  preferred  stock 
to  prevent  a  corporation  from  carrying  out 
an  agreement  with  another  corporation  for 
the  substitution  of  non-accumulative  for  ac- 
cumulative dividend-paying  preferred  stock 
md  a  refund  of  all  dividends  in  arrears — 
Willcox  V.  Trenton  Potteries  Co.,  64  N.  J.  Eq. 
173.  A  bill  against  a  re-organized  railroad 
company  which  had  bought  and  gone  into 
possession  of  the  property  of  the  first  com- 
pany through  a  foreclosure  sale  and  a  trust 
company  to  get  possession  of  bonds  deposit- 
ed by  complainant  with  the  latter  company 
which  were  guaranteed  by  the  first  rail- 
road company  and  to  compel  their  payment 
on  the  ground  that  the  foreclosure  was  void, 
does  not  show  that  there  Is  no  adequate 
remedy  at  law,  so  as  to  justify  Interference 
of  equity,  even  if  it  Is  not  open  to  the  ob- 
jection of  multifariousness — Sawyer  v.  At- 
chison,  etc.,   R.   Co.,   119  Fed.   252. 

Enforcement  of,  or  relief  against  judg- 
ments at  law.  Balch  v.  Beach  (Wis.)  95  N. 
W.  132.  Vacation  of  judgment  in  equity 
after  the  term  will  not  be  allowed  In  ab- 
sence of  substantial  injury;  construing  Code 
Civ.  Proc.  subd.  4,  §  602 — Van  Every  v.  San- 
ders (Neb.)  95  N.  W.  870.  Equity  cannot 
subject  choses  in  action  belonging  to  a 
judgment  debtor  to  the  satisfaction  of  an 
execution  returned  "no  property  found"  with- 
out an  allegation  of  fraud,  mistake,  the 
presence  of  a  trust  or  other  fact  recognized 
as  ground  for  interference  of  equity — Hen- 
derson V.  Hall,  134  Ala.  455.  Equity  will  de- 
cline to  Interfere  to  grant  new  trials  at 
law  when  relief  may  be  obtained  by  appli- 
cation to  the  law  court — Hayes  v.  United 
States  Phonograph  Co.   (N.  J.  Eq.)   55  Ath  84. 

EQUITABLE  RELIEF  GRANTED. 

Cases  in  which  the  legal  remedy  is  held 
to  be  inadequate.  Where  the  law,  because 
of  its  universality  and  the  peculiar  circum- 
stances of  the  case,  cannot  restore  to  a  per- 
son a  right  wrongfully  taken  by  another, 
equity  will  afford  a  remedy — Rhoten  v.  Ba- 
ker, 104  111.  App.  653.  The  interference  of 
equity  is  justified  where  irreparable  injury 
is  imminent  to  preserve  matters  in  statu 
quo  until  the  court  ascertain  the  truth — 
Leigh  V.  National  Hollow  Brake  Beam  Co., 
104    111.    App.    438.      That   violence   ooramitted 


§  2B 


ADEQUATE  REMEDY  AT  LAW. 


1055 


must  be  susceptible  of  proof.^*     To  warrant  the  interference  of  equity  to  prevent 
a  nuisance,  it  must  appear  that  the  danger  of  injury  is  imminent  and  impendin,fj 


by  strikers  may  be  punished  criminally  will 
not  prevent  restraint  in  equity  to  protect 
property  or  business — Union  Pac.  R.  Co.  v. 
Paief.    120   Fed.   102. 

Prevention  of  collisions  at  crossing  of  rall- 
roac^s — Jersey  City  etc.  R.  Co.  v.  New  York 
R.  Co.  (N.  J.  Eq.)  53  Atl.  709.  Restraining 
exercise  of  eminent  domain — St.  Louis,  etc. 
R.  Co.  V.  Southwestern  Tel.  &  T.  Co.  (C.  C. 
A.)  121  Fed.  276.  Action  on  negotiable  pa- 
per where  the  indorsee  has  only  an  equitable 
title — Moore  v.  Durnam,  63  N.  J.  Eq.  90; 
Action  asking  judgment  that  a  chattel  mort- 
gage executed  to  plaintiffs  be  declared  a 
lien  on  the  property  prior  to  certain  other 
mortgages  of  earlier  date  assigned  to  de- 
fendant— Salmon  v.  Norris.  82  App.  Div.  (N. 
Y.)  362.  Suit  to  adjust  rights  and  distribute 
moneys  arising  on  condemnation — Deering  v. 
Schreyer.    171   N.   Y.    451. 

Multiplicity  of  suits — Longshore  v.  Long- 
shore. 200  111.  470.  If  an  interpleader  will 
not  clearly  lie,  equity  may  take  jurisdiction 
to  prevent  a  multiplicity  of  suits  and  a 
waste  of  property,  especially  Tvhere  the  rem- 
edy at  law  is  not  as  complete  as  may  be 
afforded  in  equity — Fleming  v.  Blosser  Print- 
ing Co.  (Ga.)  44  S.  E.  805.  Where  a  judg- 
ment creditor  is  prosecuting  a  multiplicity 
of  proceedings  In  garnishment  to  subject 
■wages  of  laborers,  mechanics  and  clerks  ab- 
solutely exempt  by  law  from  attachment,  ex- 
ecution and  garnishment  process  as  far  as 
his  judgment  is  concerned,  he  may  be  re- 
-strained  in  equity — Siever  v.  Union  Pac.  R. 
Co.    (Neb.)    93   N.  W.    943. 

Relief  against  fraud  and  mistake.  Fraud 
— ^Bank  of  Montreal  v.  "Waite,  105  111.  App. 
373;  Alton  Grain  Co.  v.  Norton,  Id.  3S5.  Con- 
structive fraud  in  execution  of  an  instru- 
ment— Gorman  v.  McCabe  (R.  I.)  52  Atl.  989. 
Insertion  of  clause  in  note  by  fraud — Greg- 
ory v.   Howell,    lis   Iowa,    2G. 

Mistake  which  is  not  the  result  of  com- 
plainant's own  violation  of  a  legal  duty — 
Barker  v.  Fitzgerald,  105  111.  App.  536.  Mis- 
take of  law  resulting  in  loss  of  property 
rights — BottorfE  v.  Lewis  (Iowa)  95  N.  W. 
262. 

Enforcement  of  contracts.  Contract  not 
mutual  but  accepted  and  performed  by  one 
party — Corbet  v.  Oil  City  Fuel  Supply  Co., 
21  Pa.  Super.  Ct.  80.  Where  part  of  the 
price  has  been  paid  for  land  sold,  the  vendor 
may  have  specific  performance — Maryland 
Clay  Co.  v.  Simpers.  96  Md.  1.  By-law  of 
a  mutual  benefit  society  so  amended  as  not 
to  be  a  breach  of  the  contract  with  member 
as  to  entitle  him  to  sue  for  damages — Lan- 
gan  v.  Supreme  Council  American  Legion  of 
Honor,  174  N.  Y.  266.  Cross-bill  In  equity 
filed  in  an  action  at  law  setting  up  part 
payment  on  a  parol  contract  for  the  sale  of 
land  and  asking  relief  thereon — Wollenberg 
V.  Rose,  41  Or.  314,  68  Pac.  804.  Where  one 
who  desired  to  develop  the  water  power  of 
a  river,  secured  options  on  adjoining  lands 
necessary  to  his  object,  and  on  learning  that 
other  landowners  were  securing  lands  for 
the  same  purpose,  transferred  his  options  to 
them  under  an  agreement  that  a  corporation 
fshould  be  organized  in  which  he  was  to  have 
->»    certain    interest,    he    was    'entitled    to    sue  I 


in  equity  for  the  appointment  of  a  receiver 
to  complete  the  purchase  and  to  protect  his 
rights,  where  they  refused  to  complete  the 
contract  and  ignored  his  demand  for  a  re- 
turn of  the  options  conveyed — Barrett  v. 
Twin   City   Power  Co.,    118    Fed.   861. 

Preventing  interference  with  contractual 
rights.  The  unlawful  interference  with  per- 
formance of  contracts  by  coal  companies  will 
be  prevented  where  it  appears  that  the  plain- 
tiff is  without  adequate  remedy  at  law — 
Chesapeake  &  O.  Coal  Agency  Co.  v.  Fire 
Creek  Coal  &  Coke  Co.,  119  Fed.  942.  The 
assaulting  or  intimidating  of  workmen  by 
strikers  or  threatening  them  or  their  fam- 
ilies so  as  to  prevent  them  from  working  for 
the  employer  will  be  restrained  in  equity 
where  there  is  no  adequate  remedy  at  law — 
Union  Pac.  R.  Co.  v.  Ruef,  120  Fed.  102. 

Cancellation  or  reformation  of  contracts. 
—Null  V.  Elliott,  52  W.  Va.  229;  Nutter  v. 
Brown.  52  W.  Va.  598;  Youngstown  Electric 
Light  Co.  V.  Butler  County  Poor  Dist.,  21  Pa. 
Super.  Ct.  95;  Enos  v.  Stewart,  138  Cal.  112. 
70  Pac.  1005.  Suit  to  cancel  a  contract  for 
fraud — Andrews  v.  Frierson  (Ala.)  33  So.  6. 
Deed  including,  by  mis-take  of  scrivener, 
more  land  than  intended — Barry  v.  Rownd 
(Iowa)  93  N.  W.  67.  Setting  aside  fraudu- 
lent conveyance  for  undue  influence — Keys 
V.  McDermott  (Wis.)  93  N.  T^^  553.  Fraud 
in  conveyance  of  lands — Allen  v.  Henn,  197 
111.  486.  A  suit  to  cancel  a  deed  on  consid- 
eration that  the  grantee  should  remain  with, 
and  care  for,  the  grantor  during  life  on  the 
ground  of  breach  of  contract  is  properly 
brought  in  equity — Lowman  v.  Crawford,  99 
Va.  688.  Instrument  made  on  misrepresenta- 
tion and  fraud  as  to  the  consideration  by  one 
in  a  fiduciary  relation — Robinson  v.  Sharp, 
201  111.  86.  To  compel  surrender  of  judg- 
ment note  to  which  there  is  a  defense  as 
against  any  person — Vannatta  v.  Lindley, 
198  111.  40  (Hurd's  Rev.  St.  1899,  c.  98,  §  10) 
— Vannatta  v.  Lindley,  198  111,  40.  Cancella- 
tion of  promissory  note  for  total  failure  of 
consideration  (Womelsdorf  v.  O'Connor  [W. 
Va.]  44  S.  E.  191);  especially  where  the  hold- 
er has  taken  possession  of  property  covered 
by  a  mortgage  given  as  security  for  the 
note — Hodge   v.    McMahon    (Ala.)    34    So.    185. 

Remedies  against  uncon.scionaltle  contracts 
and  forfeitures. — Roux  v.  Rothschild,  37  Misc. 
(N.  Y.)  435;  Coveney  v.  Pattullo  (Mich.)  89 
N.  W.  968.  Usurious  contracts — Bill  v.  Mul- 
holland,  90  Mo,  App.  612.  Forfeitures — Hous- 
ton V.  Curran,  101  111.  App.   203. 

Reeorery  of  personal  property.  Where  it 
appears  in  an  action  to  enforce  a  constructive 
trust  in  property  claimed  to  have  been  sold 
under  false  representations  of  the  buyer 
and  mingled  with  other  property  so  as  to 
be  difficult  of  investigation,  the  remedy  at 
law  by  an  action  of  replevin  was  not  ade- 
quate and  equity  would  assume  jurisdic- 
tion— Missouri  Broom  Mfg.  Co.  v.  Guymon 
(C.   C.   A.)    115   Fed.   112. 

Recovery  of  lands  based  on  necessity  of 
first  cancelling  a  deed — Kllgore  v,  Norman 
119   Fed.    1006. 

Trespass,  vraste  and  other  injuries  to  real 
property  or  possession  thereof.  Trespass 
may   be   prevented   where   irreparable   Injury 


1056 


EQUITY. 


§  2B 


and  its  effect  certain.^^     That  the  same  judge  presides  over  both  courts  will  not 
change  the  rule.^*     A  federal  court  can  never  assume  equitable  jurisdiction  in  an 


win  result,  until  the  question  of  title  can  be 
determined  at  law — Freer  v.  Davis,  52  "W. 
Va.   1. 

Where  trespass  has  already  been  done, 
and  it  appears  to  the  court  that  defendant  in- 
tends to  commit  other  deliberate  trespasses 
which  cannot  be  adequately  compensated  for 
at  law.  equity  will  interfere,  especially 
where  defendant  is  insolvent — Adden  Coal 
Co.  V.  Challis,  103  111.  App.  52;  (cutting  of 
trees) — Palmer  v.  Crisle,  92  Mo.  App.   510. 

But  insolvency  is  not  indispensable  to 
make  a  case — Lynch  v.  Eg-an  (Neb.)  93  N. 
W.  775.  Riparian  owner  filling  low  places 
and  constructing  a  levee  so  as  to  overflow- 
lands  on  the  opposite  side  may  be  restrained 
though  not  insolvent — Under  Rev.  St.  1S95, 
art.  2,  c.  S9 — Sullivan  v.  Dooley  (Tex.  Civ. 
App.)   73  S.  W.  S2. 

Equitable  waste  by  removing  timber  pend- 
ing action  on  a  title  bond  the  vendees  being 
insolvent — Terry  v.   Robbins,   122   Fed.   725. 

Interference  by  lessor  with  construction  of 
a  switch  track  to  a  mine  by  a  lessee — Ingle 
V.  Bottoms  (Ind.)  66  N.  E.  160.  Remedy  of 
lessee  of  oil  lands  against  one  who  has  at- 
tempted to  bore  for  oil  under  contract  with 
owner — Chappell  v.  Jasper  County  Oil  &  Gas 
Co.  (Ind.  App.)  66  N.  E.  515.  One  who  is 
a  licensee  for  removal  of  ore  from  land  and 
whose  license  may  be  revoked  only  for 
breach  of  rules  and  regulations  has  no  rem- 
edy at  law  against  a  trespasser — ^Lytle  v. 
James.   98  Mo.  App.   337. 

Where  the  construction  of  a  track  by  a 
railroad  company  In  a  street  will  destroy 
an  easement  owned  by  an  abutting  owner, 
he  may  ask  interference  in  equity  to  pre- 
vent the  laying  of  the  track  until  his  rights 
have  been  properly  appropriated  or  pur- 
chased through  proceedings  by  the  railroad 
company — Cleveland  Burial  Case  Co.  v.  Erie 
R.  Co.,  24  Ohio  Circ.  R.  107.  Though  con- 
struction has  been  begun  and  great  expense 
incurred — Paige  v.  Schenectady  Ry.  Co.,  77 
App.  Div.  (N.  Y.)  571.  An  action  at  law  to 
dispossess  a  railroad  company  which  entered 
and  built  its  track  under  an  unenforceable 
contract,  will  be  restrained  if  the  company 
offers  to  compensate  for  use  and  occupation 
which  compensation  may  be  fixed  by  con- 
demnation proceedings — Winslow  v.  Balti- 
more &  O.  R.  Co..  188  U.  S.  646,  47  Law.  Ed. 
635.  Opening  and  using  land  as  a  street 
without  the  owner's  consent,  condemnation, 
dedication,  or  user — Baya  v.  Town  of  Lake 
City    (Fla.)    33   So.   400. 

A  cross-bill  in  a  suit  to  quiet  title,  aver- 
ring that  defendant  has  possession  and  ask- 
ing establishment  of  its  title,  will  give  a 
court  of  equity  jurisdiction  to  settle  the 
question  as  to  title  as  between  the  parties, 
though  the  failure  of  plaintiff  to  be  in  pos- 
session would  have  defeated  jurisdiction  on 
the  original  bill — Sanders  v.  Village  of  Riv- 
erside (C.  C.  A.)  118  Fed.  720;  Village  of 
Riverside  v.  Sanders,  Id. 

Where  Improvements  are  made  on  land  of 
another  in  good  faith  and  under  belief  of 
title  and  the  builder  on  discovery  of  the 
mistake,  removes  them,  and  the  owner  sues 
for  the  value  of  the  improvements,  the  de- 
fendant   may    obtain    relief    in    equity,    when 


he  cannot  under  his  title  recover  under  the 
occupying  claimants'  act — Darnall  v.  Jones' 
Ex'rs,   24   Ky.  L.   R.   2090.   72  S.  W.   1108. 

Equity  will  grant  relief  on  a  bill  to  re- 
strain obstruction  of  an  easement,  though 
there  has  been  no  decision  as  to  title  at  law. 
where  the  evidence  as  to  plaintiff's  title  Is 
such  that  a  verdict  would  be  directed  for 
liim  at  law — Richmond  v.  Bennett,  205  Pa. 
470. 

Removal  of  boundary  fences  and  encroach- 
ments by  new  fences  (F.  H.  Wolf  Brick  Co. 
V.  Lonyo  [Mich.]  93  N.  W.  251)  no  question 
of  title  being  involved — Currier  v.  Jones 
(Iowa)    96  N.  W.  766. 

>l!jtters  relnting  to  corporations.  Suit  to 
restrain  a  resident  creditor  from  suing  a  cor- 
poration for  which  the  receiver  was  appoint- 
ed in  another  state — Davis  v.  Butters  Lum- 
ber  Co.,    132   N.   C.    233. 

Statute  providing  for  production  of  docu- 
ments in  possession  of  an  "adverse  party" 
gives  no  adequate  remedy  for  discovery  of 
names  of  defendant  corporation's  stockhold- 
ers before  suing  (Gen.  Laws.  c.  244,  §  47) — 
Clark  V.  Rhode  Island  Locomotive  Works 
(R.   I.)    53   Atl.   47. 

Though  the  title  to  office  in  private  cor- 
porations must  be  tried  at  law  by  quo  war- 
ranto, if  other  elements  exist  In  a  case 
which  make  equitable  intervention  proper. 
a  court  of  equity  may  determine  the  title 
to  office — Boggiano  v.  Chicago  Macaroni  Mfg. 
Co..   99   111.   App.   509. 

Illegal  acts  by  maniclpalUies.  Unlawful 
revocation  by  a  city  council  of  a  permit  to 
remove  a  building  within  the  fire  limits — 
Lerch  v.  City  of  Duluth,  88  Minn.  295.  Where 
municipal  autliorities  are  taking  unauthor- 
ized action  under  color  of  office,  which  in- 
jures the  rights  of  a  taxpayer  so  that  he 
has  no  direct  remedy  at  law,  he  may  appeal 
to  equity — Poppleton  v.  Moores  (Neb.)  93  N. 
W.  747.  A  taxpayer  after  payment  of  his 
taxes  has  no  remedy  at  law  against  an  illegal 
award  of  a  sum  of  money  and  may  restrain 
payment — Kircher  v.  Pederson  (Wis.)  93  N. 
W.  813. 

Public  Improvements  and  Contracts.  Where 
work  has  been  begun  under  a  contract  which 
was  awarded  to  a  bidder  other  than  the  low- 
est bidder,  the  only  remedy  is  in  equity — 
City  of  Akron  v.  France,  24  Ohio  Circ.  R. 
63.  Suit  for  damages  on  contractor's  bond 
is  adequate  to  remedy  threatened  use  of 
worthless  material  in  a  public  work — Miller 
V.  Bowers,  30  Ind.  App.  116.  Improper  de- 
partures already  made  from  paving  contract 
by  which  the  city  is  defrauded — Central  Bi- 
tulithic  Pav.  Co.  v.  Manistee  Circuit  Judge 
(Mich.)  92  N.  W.  839;  Common  Council  of 
City  of  Manistee  v.  Same,  Id.  Where  a  city 
wrongfully  erected  structures  on  a  private 
road  to  enable  its  use  by  the  public  so  r.s 
to  injure  the  owner's  access  to  adjoinins:- 
property  and  assessed  part  of  the  costs  on 
his  property,  he  may  bring  a  suit  in  equity 
to  set  aside  the  assessment,  secure  the  res- 
toration of  the  road  to  its  former  condition 
and  for  damages — Culver  v.  City  of  Yonkers. 
80    App.    Div.    (N.    Y.)    309. 

Enforcement  of  debts  against  incolrents 
or    bankrtiptH.      A    set    off    may    be    enforced 


§  2B 


COMPLETE  JUSTICE. 


1057 


action  at  law  because  it  is  conferred  by  state  statutes  or  decisions  of  state  courts.^*' 
A  remedy  must  exist  which  is  adequate  and  applicable  in  the  same  jurisdiction.^-^ 

The  legal  remedies  must  have  been  diligently  pursued  and  exhaustedj^"  un- 
less complainant  would  have  defeated  himself  by  so  doing.*" 

The  adequacy  of  the  legal  remedy  must  be  raised^ by  defendant,"  before 
defense  on  the  merits.*- 

Doing  complete  justice.— Where  equity  has  obtained  jurisdiction,  on  equitable 


against  one  who  is  insolvent — Hahn  v.  Gates, 
102  111.  App.  385.  Bankrupt's  trustee  may 
sue  to  recover  the  money  paid  in  contempla- 
tion of  Insolvency  though  he  might  have  re- 
covered it  at  law — Gnichtel  v.  First  Nat. 
Bank   (N.  J.   Eq.)    53  Atl.   1041. 

Relief  against  Judgiiient — Brooks  v. 
Twitchell,  182  Mass.  443.  Collusive  judgment 
against  municipality  may  be  restrained  by 
a  taxpayer — Balch  v.  Beach  (Wis.)  95  N.  W. 
132.  Administrator  relieved  as  against  a 
judgment  against  the  estate — Polarek  v.  Gor- 
don, 102  111.  App,  356.  Written  agreement 
outside  the  record  not  to  levy  execution 
against  property  of  certain  parties  now  com- 
plaining in  consideration  of  their  making  no 
active  defense  to  the  action — Crook  v.  Lips- 
comb  (Tex.  Civ.  App.)   70  S.  W.  993. 

E^nforceinent  of  judgment  and  aid  of  exe- 
cution. A  right  to  reach  choses  in  action  of 
a  judgment  debtor  given  by  statutes  to  a 
judgment  creditor  by  garnishment  proceed- 
ings may  be  enforced  in  equity  where  be- 
cause of  impediment  it  cannot  be  enforced 
at  law — Henderson  v.  Hall,  134  Ala.  455; 
Hall  V.  Henderson,  Id.  Existence  of  money 
demand  not  triable  in  creditors'  suit — Hud- 
son V.  W^ood,   119   Fed.   764. 

32.  Mutual    Life    Ins.    Co 
Fed.   395. 

33.  Fryberger  v.  Berven, 

34.  Restrictive    contract- 
eries  Co.  v.  Lennen,   118  Fed.  869. 

35.  Drilling  of  oil  well — Pope 
water  Gas    Co.,  52  W.  Va.   252. 

36.  Union    Light    &    Power    Co, 
(Or.)    71    Pac.    1044. 

37.  Goodyear    Shoe    Mach'.    Co. 
(C.  C.  A.)    119  Fed.   692. 

38.  Federal  courts — National  Surety  Co. 
v.   State  Bank   (C.  C.  A.)    120   Fed.  593. 

39.  Metz  V.  McAvoy  Brew.  Co.,  98  111.  App. 
584.  The  holder  of  a  contract  for  sale  of 
a  diamond  on  tontine  plan  not  reduced  to 
judgment  or  who  has  no  lien  on  property 
of  the  company,  cannot  come  into  equity — 
Mann  v.  German-American  Inv.  Co.  (Neb.) 
97  N.  W.  600.  Failure  to  appeal  or  bring 
certiorari — Kyle  v.  Richardson  (Tex.  Civ. 
App.)  71  S.  W.  399.  An  adjoining  land  owner 
who  has  failed  to  appeal  cannot  sue  in  equity 
to  vacate  proceedings  for  opening  of  a  high- 
way. Under  Rev.  St.  1899,  §  9419  giving 
an  appeal  from  the  judgment  in  such  pro- 
ceedings in  the  county  court — Searcy  v.  Clay 
County  (Mo.)  75  S.  W.  657.  Where  it  ap- 
pears that  defendants  could  have  obtained 
any  relief  they  were  entitled  to  against  a 
default  judgment  on  motion,  they  cannot 
sue  in  equity  to  set  aside  the  proceedings — 
Baer  v.  Higson  (Utah)  72  Pac.  ISO.  A  new 
trial  will  not  be  granted  in  the  district  court 
by  petition  in  equity  on  the  ground  that  a 
hearing  in  the  supreme  court  ha^  been  de- 
Cur.  Law — 67. 


V.   I'earson,    114 

88  Minn.   311. 
-American    Fish- 


V.  Brldge- 
V.  LIchty 
V.    Dancel 


nied  the  applicant  without  his  fault,  unless 
It  appears  that  he  has  used  the  utmost  dili- 
gence to  have  the  case  reviewed  in  the  su- 
preme court  and  the  review  has  been  de- 
nied him — Langan  v.  Parkhurst  (Neb.)  96  N. 
W.  63.  Where  the  jurisdiction  of  chancery 
to  reach  equitable  or  legal  assets  of  a  de- 
fendant, whether  a  corporation  or  a  natural 
person,  Is  in  aid  of  a  legal  remedy  for  a 
money  demand.  It  la  not  by  way  of  substi- 
tution for,  but  only  in  aid  of,  the  legal  rem- 
edy and  cannot  be  resorted  to  until  plain- 
tiff has  exhausted  the  latter  remedy  by  ob- 
taining judgment  for  the  demand  and  gen- 
eral issue  of  execution  refurned  unsat- 
isfied— Jones  v.  Mutual  Fidelity  Co.,  123  Fed. 
506.  General  corporate  creditors  cannot  pro- 
ceed in  the  federal  court  of  equity,  against 
the  stockholders,  until  they  have  exhausted 
their  remedy  against  the  corporation  by  re- 
ducing their  claims  to  judgment — New  Hamp- 
shire Sav.  Bank  v.  Richey  (C.  C.  A.)  121  Fed. 
956.  A  return  of  "no  property  found"  on 
execution,  prima  facie  shows  that  legal  rem- 
edies have  been  exhausted  so  that  equity 
may  take  jurisdiction — Oppenheimer  v.  Col- 
lins, 115  Wis.  283.  Where  it  appears  that 
an  administrator  fraudulently  filed  a  peti- 
tion representing  that  decedent  left  no  lineal 
descendants  and  obtained  an  order  distribut- 
ing his  estate  and  discharging  himself,  and 
after  the  death  of  the  widow  of  decedent  was 
appointed  her  administrator,  and  fraudulent- 
ly represented  the  amount  of  her  property 
and  failed  to  charge  himself  with  amounts 
of  money  which  came  into  his  possession  as 
administrator  of  the  two  estates,  the  chil- 
dren of  a  brother  of  the  decedent,  suing  to 
recover  one-half  of  his  estate  were  not  re- 
quired, first  before  bringing  their  bill,  to 
proceed  against  the  widow's  estate  in  the 
probate  court — Maney  v.  Casserly  (Mich.)  96 
N.   W.   478. 

M!.stake,  accident  or  omission  In  pursuing 
legal  remedy.  Mistakes  of  law — Dobson  v. 
Central  R.  Co.,   38   Misc.    (N.   Y.)    582. 

One  having  a  complete  and  adequate  rem'- 
edy  at  law  will  not  be  heard  In  equity,  un- 
less prevented  by  accident  or  circumstances 
bej'ond  his  control  from  asserting  it  at  law 
and  when  he  is  free  from  laches — Kline- 
smith  V.  Van  Bramer,  104  111.  App.  384.  One 
may  have  relief  in  equity  from  a  fraudu- 
lently procured  judicial  accounting  where 
he  learned  the  facts  too  late  for  appeal — 
Aldrich  v.   Barton,    138   Cal.   220,   71   Pac.   169. 

40.  Jones  V.  Mutual  Fidelity  Co.,  123  Fed 
506. 

41.  Le  Vie  v.  Fenlon,  39  Misc.  (N.  Y.) 
265. 

42.  United  States  v.  Southern  Pac.  R.  Co.. 

117  Fed.  544.  The  right  to  object  may  be 
waived  by  stipulating  for  a  hearing  before 
the  master — Sanders  v.  Riverside   (C.   C.  A.) 

118  Fed.    720. 


1058 


EQUITY. 


§  2B 


gTounds,  of  the  parties  and  the  siibject-mcatter  for  one  purpose  it  will  retain  the 
ease  to  grant  complete  relief,*^  though  plaintiff  did  not  pray  all  relief  given,** 


43.  Richardson  v.  Ranson,  99  111.  258;  Bon- 
ney  v.  Sellers,  99  111.  App.  444;  Leigh  v.  Na- 
tional Hollow  Brake  Beam  Co.,  104  111.  App. 
438.  Though  some  matters  may  concern 
purely  legal  remedies — Bourke  v.  Hefter,  104 
111.  App.  126;  Whalen  v.  Billings,  104  111. 
App.    281. 

Applications  of  rule.  Jurisdiction  taken  to 
appoint  a  receiver  (Barrett  v.  Twin  City 
Power  Co.,  118  Fed.  861);  or  to  test  validity 
of  assignment  of  mortgage  by  decedent  on 
behalf  of  heirs  (Snyder  v.  Snyder  [Mich.]  92 
N.  W.  353);  or  to  construe  a  will  (Lyons  v. 
Steinhardt,  37  Misc.  [N.  Y.]  628);  or  to  pre- 
vent multiplicity  of  suits  (Richardson  v. 
Ranson,  99  111.  App.  258;  Bonney  v.  Sellers, 
99  111.  App.  444);  or  to  determine  whether 
conveyance  is  a  mortgage  (Lane  v.  Beitz, 
99  111.  App.  342);  or  to  restrain  trial  of  a 
claim  case  between  the  same  parties  and  re- 
lating to  the  same  land — Goodwynne  v.  Bel- 
lerby,  116  Ga.  901.  Equity,  having  once  ob- 
tained jurisdiction  respecting  land,  will  en- 
tertain a  cross-bill  asserting  other  rights 
than  those  set  forth  by  the  bill  (Longshore 
V.  Longshore,  200  111.  470);  or  praying  a  re- 
conveyance and  accounting  of  rents — Allen 
V.  Leflore  County  (Miss.)  31  So.  815.  Orig- 
inal suit  concerning  water  rights,  and  re- 
tention of  case  until  all  matters  Involved 
between  the  parties  are  finally  adjusted — 
La  Junta  &  L.  Canal  Co.  v.  Hess  (Colo.)  71 
Pac.   415. 

On  jurisdiction  to  determine  a  disputed 
boundary  line,  the  ownership  of  land  lying 
between  the  boundary  lines  claimed  by  each 
of  the  parties  may  be  settled — Killgore  v. 
Carmichael,  42  Or.  618,  72  Pac.  637.  Where 
jurisdiction  is  acquired  to  discharge  a  mort- 
gage, the  whole  controversy  will  be  settled 
and  complainant  will  be  awarded  a  surplus 
due  her  as  heir  of  the  mortgagor,  consisting 
of  rents  from  the  estate  of  the  mortgagee — 
Whetstone  v.  McQueen  (Ala.)  34  So.  229. 
After  a  contract  for  collection  of  payments 
on  Insurance  policies  has  been  cancelled  for 
fraud,  the  bill  may  be  retained  to  enjoin 
further  litigation  on  the  contract — Barring- 
ton  v.  Ryan,  88  Mo.  App.  85.  After  taking 
jurisdiction  to  establish  title  to  land  be- 
cause of  the  destruction  of  records  In  the 
Chicago  fire,  the  court  may  remove  a  cloud 
on  title  In  the  same  suit — South  Chicago 
Brew.  Co.  V.  Taylor  (111.)  68  N.  E.  732.  If 
equity  has  taken  jurisdiction  of  the  par- 
ties and  the  subject,  and  on  trial  has  granted 
interpleader  to  determine  ownership  of  cer- 
tain property  as  between  two  defendants, 
it  will  keep  jurisdiction  to  determine  that 
controversy — American  Press  Ass'n  v.  Brant- 
ingham,  37  Misc.  (N.  Y.)  426.  After  juris- 
diction is  rightfully  taken  of  a  controversy 
and  all  parties  are  before  the  court,  equity 
may  retain  jurisdiction  to  grant  full  relief, 
and  In  doing  so  may  restrain  an  action  at 
law  by  one  party  In  another  court  Involving 
the  same  matters  In  controversy — Berliner 
Gramophone  Co.  v.  Seaman  (C  C.  A.)  113 
Fed.  750;  Id.,  115  Fed.  806.  In  a  litigation 
to  preserve  and  protect  property  of  a  cor- 
poration pending  litigation  for  benefit  of 
?reditors,  bondholders  and  stockholders,  all 
v^uestions   relating   to    ownership    and   claims 


against  the  property  may  be  settled  in  the 
one  cause — Richardson  v.  Ranson,  99  111.  App. 
258;  Bonney  v.  Sellers,  99  111.  App.  444. 
Where  an  incompetent  person  conveyed  land 
and  gave  money  to  another  through  undue 
influence,  a  court  of  equity,  after  cancelling 
the  deed  at  the  suit  of  the  grantor's  heirs, 
may  retain  the  bill  to  recover  the  money — 
Eagan  v.  Conway,  115  Ga.  130.  Commission 
of  waste  by  cutting  timber  which  consti- 
tutes the  chief  value  of  land  may  be  re- 
strained in  equity  and  also  an  accounting 
may  be  had  for  waste  already  committed  and 
equity  may  also  determine  the  title  to  land, 
though  plaintiff  is  out  of  possession — Doug- 
las Co.  V.  Tennessee  Lumber  Mfg.  Co.  (C. 
C.  A.)  118  Fed.  438.  In  a  suit  to  determine 
rights  in  a  stream,  plaintiff  may  offer  to 
compensate  riparian  o'wners  whose  land  is 
affected  by  construction  of  an  irrigation 
canal,  so  that  the  rights  of  all  the  parties 
as  to  damages  may  be  settled  without  leav- 
ing such  owners  to  actions  at  law — Craw- 
ford Co.  V.  Hathaway  (Neb.)  93  N.  W.  781. 
If  equity  has  taken  jurisdiction  of  a  trust 
estate  for  a  party  in  Interest  entitled  to 
complain  of  the  Investment  of  the  fund  in 
land  in  the  name  of  the  trustee,  it  will  re- 
tain the  case  for  complete  justice  and  com- 
pel restoration  of  the  capital  by  all  who 
have  aided  In  Its  impairment — Newton  v. 
Rebenack,  90  Mo.  App.  650.  In  a  suit  to 
foreclose  a  mortgage  placed  on  water  works 
previous  to  purchase  by  a  city,  equity  will 
determine  all  matters  in  controversy  and 
enforce  complainant's  rights  under  a  con- 
tract made  before  execution  of  the  mort- 
gage, requiring  the  city  to  pay  rentals  to 
the  trustee  for  the  benefit  of  the  bondhold- 
ers— Centervllle  v.  Fidelity  Trust  &  Guaran- 
ty Co.  (C.  C.  A.)  118  Fed.  332;  Fidelity  Trust 
&  Guaranty  Co.  v.  Fowler  Water  Co.,  113 
Fed.  560.  Where  a  corporation  organized  by 
the  owners  of  water  rights  was  before  the 
court  in  a  suit  to  require  transfer  of  deeds 
of  water  rights,  it  was  held  unnecessary  to 
bring  a  ne'w  action  against  such  corporation 
for  the  appointment  of  a  receiver — La  Junta 
&  L.  Canal  Co.  v.  Hess  (Colo.)  71  Pac.  415, 
Where  cross  suits  haye  been  brought  for 
reformation  .of  an  insurance  policy,  to  en- 
force payment  of  loss  and  for  cancellation, 
and  to  restrain  prosecution  of  an  action  at 
law,  equity  may  retain  jurisdiction  to  de- 
termine all  the  issues  on  the  consolidation 
and  trial  of  the  suits  together,  including  all 
questions  at  issue  between  the  parties,  and 
may  render  judgment  for  the  loss  on  the 
policy — German  Ins.  Co.  v.  Downman  (C.  C. 
A.)  115  Fed.  481.  Where  It  appears  that  the 
sole  executor  of  an  estate,  who  was  also 
the  co-executor  of  another  estate  of  which 
his  wife  was  executrix  and  residuary  leg- 
atee, had  joined  with  her  In  asserting  claims 
against  the  estate  of  which  he  was  sole  ex- 
ecutor, a  court  of  equity  Is  justified  in  taking 
jurisdiction  to  determine  whether  there  was 
a  conspiracy  between  them  to  defraud  par- 
ties In  Interest,  and  having  so  acquired  juris- 
diction It  will  retain  It  to  afford  relief  de- 
manded by  the  facts — Steinway  v.  Von  Ber- 
nuth,  82  App.  Div.  (N.  Y.)  596.  Joinder  by 
statute    of   all    matters    of    action    necessary 


^  2B 


MULTIPLICITY. 


1059 


provided  the  relief  is  consistent  with  the  cause  of  action  in  the  original  suit.'*' 
If  the  relief  sought  by  the  bill  is  denied,  it  will  not  be  retained  to  give  purely- 
legal  relief  incidental  in  its  nature/*  but  only  that  within  the  scope  of  the  con- 
troversy.*''  When  nonresidents  are  in  court  by  publication  only,  jurisdiction  can- 
not be  retained  for  relief  which  requires  jurisdiction  of  the  person.^' 

Jurisdiction  may  be  taken  to  give  complete  relief  where  equitable  rights  ap- 
pear in  an  action  at  law.*®  A  bill  may  be  retained  on  the  docket  to  allow  trial 
of  title  at  law.'**' 

MuHiplicity  of  suits. — "WTiere  there  is  danger  of  a  multiplicity  of  suits  at 
law,  equity  will  take  jurisdiction,'*^  unless  the  several  suits  depend  on  the  same 
statement  of  facts  and  subject-matter,^^  or  plaintiff  has  no  valid  cause  of  action 
legal  or  equitable,'*'  or  the  persons  directly  interested  are  not  parties,  are  not 


to  a  complete  remedy  (Burns'  Rev.  St.  1901, 
§  281) — Palmer  Steel  &  Iron  Co.  v.  Heat, 
etc.,    Co.    (Ind.)    66   N.    E.    690. 

44.  Cancellation  of  contract  decreed — Jor- 
dan V.  Coulter,  30  Wash.  116,  70  Pac.  257. 

45.  A  suit  for  cancellation  of  an  instru- 
ment cannot  be  retained  after  a  finding  that 
the  instrument  Is  valid  to  construe  the  in- 
strument and  to  restrain  defendant  from 
representing-  that  it  operated  as  a  license — 
Kerr  v.  Southwick   (C.  C.  A.)   120  Fed.   772. 

46.  After  sustaining  demurrer  to  the  bill 
— Kessler  v.  Ensley  Co.,  123  Fed.  546.  Dam- 
ages will  be  assessed  only  where  incidental 
to  other  relief  in  disposal  of  the  whole  con- 
troversy, and  not  if  equitable  grounds  for 
relief  have  vanishpJ — National  Tube  Co.  v. 
Eastern  Tube  Co.,  23  Ohio  Clrc.  R.  468.  A 
claim  against  a  city  to  recover  water  rent- 
als due  under  a  contract,  being  a  strictly 
legal  question,  cannot  be  enforced  in  a  fed- 
eral court  of  equity,  though  the  court  has 
acquired  jurisdiction  concerning  other  mat- 
ters in  controversy  between  the  parties. 
Under  the  constitutional  guaranty  of  right 
to  trial  by  jury — American  "Waterworks  Co. 
V.  Home  Water  Co.,  115  Fed.  171. 

47.  Where  equity  has  obtained  jurisdic- 
tion for  purposes  of  an  injunction,  and  such 
relief  is  denied.  It  may  retain  the  case  to 
give  pecuniary  damages,  rather  than  remit 
complainant  to  his  remedy  at  law — Lane  v. 
Michigan  Traction  Co.  (Mich.)  97  N.  W.  354. 
Where  one  sues  in  equity  in  good  faith  but 
fails  to  show  a  right  to  equitable  relief,  the 
court  may  refuse  to  dismiss  the  suit  and 
leave  him  to  an  action  at  law  to  secure  a 
legal  right  within  the  scope  of  the  contro- 
versy to  which  he  shows  himself  clearly  en- 
titled, regardless  of  the  form  of  the  ac- 
tion— Gates  V.   Paul   (Wis.)    94  N.  W.   55. 

48.  Specific  performance  denied — McGaw 
V.  Gortner,   96  Md.   489. 

49.  Where  an  action  has  been  begun  at 
law  on  an  insurance  policy,  it  appears  after 
answer  that  a  mutual  mistake  in  the  in- 
strument will  prevent  recovery,  equity  will 
stay  the  prosecution  at  law,  receive  a  bill 
for  reformation  of  the  policy,  join  the  two 
actions  and  render  judgment  on  the  policy 
as  reformed — Lansing  v.  Commercial  Union 
Assur.  Co.   (Neb.)   93  N.  W.  756. 

50.  Partition  suit — Eagle  v.  Franklin 
(Ark.)   75  S.  W.  1093. 

51.  Crawford  Co.  V.  Hathaway  (Neb.)  93 
N.    W.    781;   Fleming  v.   Blosser  Printing  Co. 


(Ga.)  44  S.  E.  805;  Perry  v.  Elliott  (Va.)  44 
S.  E.  919.  After  jurisdiction  has  been  ob- 
tained to  restrain  waste  and  for  an  account 
for  waste  already  taken,  a  multiplicity  of 
suits  may  be  prevented  by  settling  the  ques- 
tion of  title — Peck  v.  Ayers  &  Lord  Tie  Co. 
(C.  C.  A.)  116  Fed.  273.  Where  many  com- 
plainants have  identical  claims  of  right  in 
the  same  subject  matter  against  many  de- 
fendants which  are  corporations  alleged  to 
be  in  a  combination  to  Inflict  wrongs  on 
each  complainant,  equity  will  taken  juris- 
diction to  avoid  a  multiplicity  of  suits — Tift 
V.  Southern  R.  Co.,  123  Fed.  789.  A  creditor's 
bill  cannot  be  dismissed  on  a  finding  that 
certain  defendants  were  indebted  to  the  debt- 
or for  rent  because  plaintiif  has  an  adequate 
remedy  in  garnishment  proceedings,  since 
one  of  the  objects  of  the  bill  is  to  prevent 
a  multiplicity  of  suits — Benedict  v.  T.  L.  V 
Land  &  Cattle  Co.  (Neb.)  92  N.  W.  210. 
Where  it  appears  by  a  petition  that  defend- 
ant was  acting  in  a  manner  to  cast  a  cloud 
on  the  title  of  leases  belonging  to  plaintiff 
causing  plaintiff  a  multiplicity  of  suits  to 
protect  his  rights,  equity  will  Interfere  by 
injunction — Allen  v.  New  Domain  Oil  &  Gas 
Co.,   24  Ky.   L.   R.  2169,   73  S.  W.   747. 

I!Iu!«tratioiis.  To  prevent  continued  tres- 
passes— Palmer  v.  Crisle,  92  Mo.  App.  510; 
Lynch  v.  Egan  (Neb.)  93  N.  W.  775.  Mul- 
tiplicity of  garnishment  proceedings  to  sub- 
ject w^ages  of  employes  to  attachment  which 
are  exempt  by  law — Siever  v.  Union  Pac.  R. 
Co.  (Neb.)  93  N.  W.  943.  Three  persons  in- 
terested in  an  award  for  damages  on  ex- 
tension of  a  street — Deering  v.  Sclireyer,  171 
N.  Y.  451.  Injunction  against  enforcement 
of  an  illegal  city  ordinance  imposing  a  license 
tax  where  complainant  will  be  called  upon 
to  defend  many  criminal  prosecutions  and 
to  suffer  irreparable  injury — City  of  Hutch- 
inson V.  Beckham  (C.  C.  A.)  118  Fed.  399. 
Rights  to  waters  of  a  stream  claimed  by 
many  persons  because  of  riparian  rights, 
appropriations  and  prescription  or  otherwise 
— Crawford  Co.  v.  Hathaway  (Neb.)  93  N.  W. 
781.  Constantly  recurring  injury  resulting 
from  a  trespass  by  a  railroad  company  for 
which  suit  had  already  been  instituted  and 
plaintiffs  intended  to  sue  again — Illinois  Cent. 
R.  Co.  V.  Garrison  (Miss.)  32  So.  996. 

52,  53.  Where  several  persons  holding 
tracts  of  land  under  different  titles  without 
privity  between  them  are  sued  each  in  eject- 
ment by  another  equity  will  not  Intervene 
to  prevent  a  multiplicity  of  suits — Turner 
V.  City  of  Mobile,  135  Ala.  73. 


1060 


EQUITY. 


§  2C 


numerous,  and  have  separate  and  independent  claims.'^*  There  must  be  a  com- 
munity of  interest  in  the  subject-matter  or  a  common  right  or  title.*'*  It  is  not 
necessary  that  the  many  threatened  suits  shall  have  been  begun.^®  A  statutory 
remedy  of  one  action  at  law  will  prevent  equitable  interference."*^  A  reduction 
of  the  controversies  to  one  issue  will  oust  equitable  jurisdiction.*^ 

(§  2)  C.  Occasions  for,  and  subjects  of,  equitalle  relief. — The  subjects  of 
equity  jurisdiction  have  been  classified  by  numerous  writers.*®  Justice  Story  assigus- 
the  following  groups,''*' — trusts  and  equitable  estates  generally ,^^  mistake,  accident,, 
and  fraud/-  penalties  and  forfeitures,  imposition,  unconscionable  bargains,  and 


54.  Threatened  survey  of  state  lands  by 
land  department  of  state — Kirwan  v.  Mur- 
phv.  1S9  U.   S.  35,   47  Law.  Ed.   698. 

55.  Tift  V.  Southern  R.  Co..  123  Fed.  789. 
A  bill  to  prevent  suits  by  21  owners  of  land 
adjoining  plaintiff's  sulphur  works  will  not 
be  entertained — Ducktov/n  Sulphur,  Copper 
&  Iron  Co.  V.  Fain.  109  Tenn.  56.  A  suit  to 
enforce  the  statutory  liability  of  stockhold- 
ers of  a  foreign  corporation  cannot  be 
brought  in  equity  to  prevent  a  multiplicity 
of  suits,  where  the  amount  demanded  is  the 
full  amount  of  the  par  value  of  the  stock 
held  by  each,  the  Interest  of  each  stockhold- 
er being  separate  and  distinct — Hale  v.  Allin- 
son.   1S8  U.  S.   56.   47  Law.  Ed.   380. 

56.  Prevention  of  enforcement  of  a  city 
ordinance  because  void  as  against  plaintiff 
and  because  many  threatened  prosecutions 
may  result — Joseph  Schlitz  Brewing  Co.  v. 
City  of  Superior   (Wis.)   93  N.  W.  1120. 

57.  "Where  a  statute  for  highway  assess- 
ments provides  for  one  assessment  to  be 
paid  up  at  once  or  on  default  to  be  paid  in 
ten  parts  annually  giving  the  right  to  the 
parties  assessed  to  elect  and  have  the  ques- 
tion of  validity  of  assessment  determined  in 
one  action,  a  suit  to  declare  an  assessment 
void  will  not  be  entertained — Greenhood  v. 
MacDonald,    183   Mass.    342. 

58.  All  but  one  disclaimed — Nash'  v.  Mc- 
Cathern,    183   Mass.    345. 

59.  Approved  classifications  may  be  found 
in  Bispham's  Equity,  chapter  on  "Outline  of 
Jurisdiction,"  and  in  Cyc.  Law  Diet,  title 
"Equity." 

60.  1  Story,  Eq.  Jur.  §  29,  cited  Fletcher 
Eq.  PI.  &  Pr.  §  3. 

61.  In  a  suit  for  relief  respecting  a  trust 
arising  under  a  will,  the  court  will  not  re- 
fuse to  exercise  its  po\^'er  because  some  of 
the  beneficiaries  are  infants  or  because  ob- 
jections are  made  on  behalf  of  one  of  such 
beneficiaries  if  convinced  that  a  change  in 
the  scheme  of  the  trust  is  necessary  to  carry 
out  the  testator's  intention  and  will  result 
in  benefit  to  the  infants  and  protection  of 
their  interests — Pennington  v.  Metropolitan 
Museum  of  Art  (N.  J.  Eq.)  55  Atl.  468.  A 
bill  to  recover  profits,  alleged  to  have  been 
made  by  a  director  of  a  corporation  em- 
ployed on  a  salary  to  purchase  goods  for 
the  corporation,  on  the  ground  that  he  had 
sold  such  goods  to  the  corporation  at  a 
profit,  cannot  be  sustained  as  a  bill  to  en- 
force a  trust — American  Spirits  Mfg.  Co.  v. 
Easton.   120   Fed.   440. 

i:qalta1>le  assigmnent  wrought  by  attor- 
ney's contract — Deering  v.  Schreyer,  171  N. 
Y.   451. 

A  lien  will  be  kept  alive  or  extinguished 
In  equity  as  will  best  accomplish  justice 
and    the    actual    intention    of    the    parties — 


Kohlsaat  v.  Illinois  Trust  &  Sav.  Bank,  102- 
III.  App.  110.  But  an  equitable  action  will 
not  lie  to  enforce  an  attorney's  statutory 
lien.  Lien  given  by  Code  Civ.  Proc.  §  66 — 
Fromme  v.  Union  Soc.  &  Guaranty  Co.,  3^ 
Misc.    (N.    T.)    105. 

62.  Mistake  in  matters  of  law  may  even 
be  made  the  ground  for  relief  and  where  one 
parts  with  a  private  riglu  of  property  on 
grounds  on  which  he  would  not  have  acted 
had  he  not  misapprehended  the  laT\',  he  may 
be  granted  relief — Bottorff  v.  Lewis  (lowai 
95  N.  W.  262.  An  award  in  arbitration  -n-Ul 
not  be  reviewed  for  alleged  mistakes  of  law. 
where  the  arbitrator  honestly  decided  the- 
case  consistent  with  what  he  believed  to  be- 
the  law — Dobson  v.  Central  R.  Co.,  38  Misc. 
(N.    Y.)    5S2. 

An  erroneously  instituted  proceeding  wa.s^ 
remanded  to  a  court  of  equity  whence  it  had 
come  on  appeal  with  directions  to  proceed 
in  equity  regularly — Smith  v.  Gudger  (N.  C.> 
45    S.    E.    955. 

A  void  process  cannot  be  amended  in  equitj- 
so  as  to  vitalize  a  suit  brought  on  the  law 
side  of  the  court,  since  it  is  equivalent  to 
no  process  at  all — Neal-Millard  Co.  v.  Owens 
(Ga.)    45  S.  E.    508. 

Fraud  in  execution  of  a  will — Delabarre- 
V.  McAlpin,  71  App.  Div.  (N.  Y.)  501.  One- 
dealing  with  a  municipal  corporation  in  re- 
gard to  matters  beyond  defendant's  cor- 
porate powers,  can  have  no  relief  in  equity^ 
to  save  himself  from  loss;  but  if  public  offi- 
cers collusively  neglect  to  defeat  the  bring- 
ing of  in^'alid  claims  against  the  mr.nicipal- 
ity  into  iudgment,  a  taxpayer  may  intervene- 
in  a  seasonable  time  in  the  name  of  one  or 
more  taxpayers  acting  for  all,  to  restrain 
its  collection — Balch  v.  Beach  (W^is.)  95  N. 
W.   132. 

Car.cellation  of  contracts  obtained  by  Irand 
— Andrews  v.  Frierson  (Ala.)  33  So.  6.  An 
allegation  in  a  bill  to  restrain  an  action  on 
a  note,  that  the  clause  in  the  note  as  to 
place  of  payment  was  inserted  by  fraud, 
will  justify  the  intervention  of  equity — 
Gregory  v.  Howell.  118  Iowa,  26.  The  most 
extensive  remedy  ■will  be  given  to  a  defraud- 
ed person,  and  all  actually  concerned  in  the 
fraud  or  who  directly  or  knowingly  partici- 
pate in  its  fruits  ^uU  be  reached  where  the 
fraud  relates  to  the  contract — Bank  of  Mon- 
treal V.  "Waite,  105  111.  App.  373;  Alton  Grain 
Co.  V.  Norton.  Id.  385.  Relief  will  be  grant- 
ed the  purchaser  of  lands  because  of  false 
representations  as  to  their  value  by  the 
vendor  upon  ■which  the  purchaser  relied — 
Allen  v.  Henn.  197  111.  486.  A  bill  alleging 
that  defendant  ■was  long  the  confidential 
agent  of  a  deceased  person,  and  that  while 
the  latter  was  mentally  incompetent  defend- 
ant induced  the  purchase  of  lands  at  exorbi- 


g  2C 


OCCASION  FOR  RELIEF. 


1061 


betrayals  of  confidence,"^  impending  irreparable  injuries  or  meditated  mischiefs,®* 
and  many  cases  of  oppiessive  proceedings  and  undue  advantages.®'^     The  admin- 


tant  prices  to  his  own  benefit,  and  that  he 
had  neglected  to  account  for  moneys  re- 
ceived by  him,  the  amounts  of  which  were 
wholly  within  his  own  knowledge,  and  ask- 
ing that  the  conveyances  be  declared  fraud- 
ulent and  defendant  required  to  account, 
^hows  a  case  for  equity — Keys  v.  McDermott 
(Wis.)    93   N.   W.    553. 

63.  Wherever  there  exists  a  relation  of 
trust  and  confidence  between  parties  giving 
one  an  advantage  over  the  other,  equity  will 
investigate  transactions  between  them,  and 
■will  not  be  confined  to  merely  formal  fidu- 
ciary relations — Cannon  v.  Gilmer,  135  Ala. 
302.  Contract  by  attorney  for  fees  in  de- 
fense of  one  charged  with  robbery — Coveney 
V.  Pattullo  (Mich.)  S9  N.  W.  968.  Total  fail- 
ure of  consideration — Womelsdorf  v.  O'Con- 
nor (W.  Va.)  44  S.  E.  191.  Sale  of  annuity 
worth  $20,400  for  $2,700 — Roux  v.  Rothschild. 
37  Misc.  (N.  T.)  435.  Usurious  agreements 
— Bill  V.   Mulholland,    90   Mo.   App.    612. 

The  rule  against  declaring  forfeitures  is 
not  offended  by  enforcing  rights  under  an 
accomplished  and  completed  forfeiture;  ap- 
plication to  restrain  a  trespass  by  a  tenant 
after  exercise  of  option  to  forfeit  lease — 
Metropolitan  Land  Co.  v.  Manning  (Mo.  App.) 
71  S.  W.  696. 

64.  Trespass — Freer  v.  Davis,  52  W.  Va. 
1;  Palmer  v.  Crisle,  92  Mo.  App.  510;  Lynch 
V.  Egan  (Neb.)  93  N.  W.  775.  See  also 
forthcoming  article  Injunction.  A  party  will 
not  be  aided  in  maintaining  a  public  nuisance 
nor  in  violating  the  penal  laws  of  the  state 
— Nebraska  Tel.  Co.  v.  Western  Independent 
Long  Distance  Tel.  Co.  (Neb.)  95  N.  W.  18. 
See  also  the  doctrine  of  "clean  hands,"  ante 

Equity  may  determine  the  proper  provi- 
sions for  protection  against  collision,  whore 
two  railroads  cross  each  other  at  grade  and 
cannot  themselves  agree  upon  such  provi- 
sions— Jersey  City,  etc.  St.  R.  Co.  v.  Nev/ 
York  etc.  R.  Co.  (N.  J.  Eq.)  53  Atl.  709.  The 
statutory  authority  given  the  court  of  equity 
in  New  Jersey  to  entertain  a  petition  to 
compel  a  railroad  company  to  erect  gates 
at  a  crossing  is  consistent  with  its  gen- 
eral jurisdiction  and  modes  of  procedure. 
Act  March  16,  1898  (Pub.  L.  1898,  p.  110)— 
Palmyra  Tp.  v.  Pennsylvania  R.  Co.  (N.  J. 
Law)    52    Atl.    1132. 

65.  Extortionate  charges  and  unjust  dis- 
criminations by  common  carriers  will  be  re- 
strained— Tift  V.  Southern  R.  Co.,  123  Fed. 
789.  Where  a  contract  is  not  mutual  in  the 
sense  of  equality  of  benefit,  but  has  been  ac- 
cepted and  performed  by  one  of  the  parties, 
performance  by  the  other  may  be  compelled 
— Corbet  v.  Oil  City  Fuel  Supply  Co.,  21  Pa. 
Super.    Ct.    80. 

Taking  projierty  w^ithout  purchase  or  the 
owner's  consent,  condemnation  proceedings, 
dedication  or  prescription,  may  be  enjoined 
— St.  Louis  etc.  R.  Co.  v.  Southwestern  Tel. 
&  T.  Co.  (C.  C.  A.)  121  Fed.  276.  Laying  out 
street — Baya  v.  Town  of  Lake  City  (Fla.) 
33  So.  400.  One  holding  title  to  the  center 
of  a  street  may  restrain  building  or  opera- 
tion of  a  railroad  line  thereon  the  right  not 
having  been  acquired  by  condemnation — 
Paige  v.  Schenectady  R.  Co.,  77  App.  Div. 
<N.   Y.)    571.      One   railroad   company  will   be 


restrained  from  crossing  the  track  of  an- 
other without  acquiring  the  right  by  con- 
demnation. Under  Civ.  Code,  §  2167 — At- 
lantic, etc.,  R.  Co.  V.  Seaboard  Air  Line  R., 
116  Ga.  412.  One  without  authority  may  be 
restrained  from  crossing  the  canal  of  an 
irrigation  company  with  a  lateral  to  carry 
water  to  his  land  from  another  canal — 
Castle  Rock  Irr.  Canal  &  TVater  Power  Co. 
V.   Jurisch    (Neb.)    93  N.   W.    690. 

Relief  may  be  granted  against  forfeitures 
caused  by  fraud,  accident  or  mistake,  but  if 
the  forfeiture  amounts  to  a  mere  pecuniary 
obligation,  no  relief  will  be  given  where  it 
was  caused  by  gross  or  willful  negligence — 
Houston  V.  Curran,  101  111.  App.  203.  For- 
feiture of  a  mining  lease  will  be  enforced 
where  it  will  work  equity  and  protect  the 
landowner  against  negligence  and  laches  of 
the  lessee  and  great  loss — Negaunee  Iron 
Co.  V.  Iron  Cliffs  Co.  (Mich.)  96  N.  W.  468. 
While  equity  will  not  enforce  forfeitures, 
the  rule  will  not  be  applied  to  relieve  a 
party  against  express  terms  of  his  own  con- 
tract— Robinson  v.  Board  of  Education  of 
City  of  Chicago,  98  111.  App.  100,  and  where 
a  contract  provides  for  a  forfeiture  In  un- 
mistakable terms  and  is  otherwise  legal, 
equity  will  not  releve  as  against  the  for- 
feiture— Equitable  Loan  &  Security  Co.  v. 
Waring  (Ga.)   44  S.  E.  320. 

Enforcement  of  a  judgment  may  be  re- 
strained where  substantial  injury  will  result 
from  Its  enforcement — Henderson  v.  Hall, 
134  Ala.  455;  Hall  v.  Henderson,  Id.;  Jones  v. 
Mutual  Fidelity  Co.,  123  Fed.  506;  Hayes  v. 
United  States  Phonograph  Co.  (N.  J.  Eq.) 
.55  Atl.  84;  Brooks  v.  Twitchell,  182  Mass. 
443.  Unless  there  is  some  substantial  injury 
authorizing  the  vacation  of  a  judgment  in 
equity  after  the  term,  it  will  not  be  author- 
ized by  subd.  4,  §  602,  Code  Civ.  Proc,  which 
is  merely  declaratory  of  equity  jurisdiction 
under  the  old  practice — Van  Every  v.  San- 
ders (Neb.)  95  N.  W.  870.  Relief  cannot  be 
granted  from  a  judgment  obtained  by  fraud 
perpetrated  by  the  judgment  creditor,  where 
the  debtor  is  not  guilty  of  any  inexcusable 
ignorance  or  negligence,  by  granting  a  new 
trial  or  disturbing  judgment,  but  the  judg- 
ment creditor  may  be  prevented  from  en- 
forcing the  judgment — Baleh  v.  Beach  (Wis.) 
95  N.  W.  132.  Strictness  regarding  the  re- 
straint of  enforcement  of  a  judgment  will 
be  relaxed  where  it  is  asked  by  an  adminis- 
trator with  no  personal  knowledge  of  the 
subject-matter  or  where  the  injured  party 
could  not  obtain  relief  at  all  or  was  pre- 
vented without  fault  or  negligence  from  ob- 
taining such  relief  by  fraud  or  accident — 
Polarek  v.  Gordon,  102  111.  App.  356.  TS^here 
a  defense  to  an  action  comes  to  the  knowl- 
edge of  a  party  for  the  first  time  after  trial 
in  a  court  of  law  and  the  enforcement  of 
the  judgment  would  amount  to  a  fraud  on 
the  part  of  the  other  party,  such  enforce- 
ment will  be  restrained — Polarek  v.  Gordon, 
102  111.  App.  356.  Where  the  attorney  of 
plaintiff  in  an  action  at  law  assured  defend- 
ant that  he  might  appear  at  any  time  and 
that  no  advantage  would  be  taken  of  the 
delay  but  a  default  and  judgnent  was  en- 
tered under  a  general  order  without  knowl' 


1062 


EQUITY. 


§  2C 


istration  and  distribution  of  property  of  bankrupts  may  be  had  in  equity  and 
becomes  a  branch  of  equity  jurisdiction  when  authorized  by  act  of  congress.®^ 
The  management  of  a  corporation  or  society  will  not  be  interfered  with  unless 
the  officers  or  stockholders  are  exceeding  their  corporate  power  or  there  is  fraud 
or  collusion  as  to  the  managing  officers  or  the  stockholders.^'  A  suit  in  equity 
cannot  be  maintained  merely  to  settle  the  title  to  a  corporate  office.** 

Chancery  is  concerned  only  v.'ith  questions  of  property  and  the  maintenance 
of  civil  rights,  and  has  no  jurisdiction  in  criminal  or  merely  immoral  matters 
not  affecting  rights  to  property.®^  Violation  of  penal  or  criminal  laws  will  not 
be  prevented  in  equity/"  nor  matters  of  a  political  character  considered.''^ 

Peculiar  remedies  of  equity  have  been  enumerated^^  as  follows, — specific 
performance,  injunctions,^'  re-execution,  reformation,  and  cancellation;^*  ac- 
count,"^ dower,  and  partition  suits,  confusion  of  boundaries,  and  rents,  partner- 
ship bills,  creditors'  bills,  and  administration  suits,  relief  and  care  of  infants, 
idiots,  and  lunatics,  discovery,  commissions  to  take  testimony,  or  bills  to  perpet- 
uate evidence,  or  to  take  testimony  de  bene  esse,  bills  quia  timiet,  receivership,  ne 
exeat,  and  supplicavit. 


edge  of  the  parties  until  two  years  after- 
wards when  the  judgrnent  could  not  be  va- 
cated on  motion  or  proceeding  for  review, 
a  bill  showing  such  facts  is  not  liable  to  de- 
murrer for  want  of  equity  to  set  aside  the 
Judgment — Brooks  v.  Twltchell,  182  Mass. 
443.  Where  execution  of  an  ejectment  judg- 
ment against  a  railroad  company  will  seri- 
ously affect  public  interests,  it  may  be  sus- 
pended by  a  court  of  equity  in  its  discre- 
tion during  a  period  sufficient  to  enable  the 
company  to  prosecute  condemnation  pro- 
ceedings in  order  to  secure  the  land — Gris- 
wold  V.  Minneapolis,  etc.  R.  Co.  (N.  D.)  97 
N.  W.  538. 

Complainant  must  be  free  from  neglect  to 
assert  his  rights  at  law — Langan  v.  Park- 
hurst  (Neb.)  96  N.  W.  63;  Kyle  v.  Richard- 
son (Tex.  Civ.  App.)  71  S.  W.  399;  Kline- 
smith  V.  Van  Bramer,  104  111.  App.  384.  Re- 
lief against  default — Baer  v.  Higson  (Utah) 
72  Pac.  180. 
66.     In  re  Rochford  (C.  C.  A.)  124  Fed.  182. 

Coss   V.    Herring,   24   Ohio  Circ.    R.    36. 

Standard    Gold    Min.    Co.    v.    Byers,    31 

100,   71  Pac.  766. 

Marshall  v.  Board  of  Managers  of  Illi- 
nois State  Reformatory,  201  111.  9.  Statu- 
tory penalties  cannot  be  recovered.  For  fail- 
ure to  release  chattel  mortgages — Meredith 
V.  Lyon   (Neb.)    92  N.  W.   122. 

70.  Injunction  to  prevent  keeping  open 
barber  shop  on  Sunday — York  v.  Yzagnairre 
(Tex.  Civ.  App.)  71  S.  W.  563.  Merely  crim- 
inal acts  will  not  be  prevented  merely  be- 
cause public  officers  have  neglected  to  per- 
form their  duties — People  v.  Condon,  102  111. 
App.    449. 

71.  Questions  concerning  an  appointment 
of  public  officers  or  their  title  to  office  will 
not  be  determined — Howe  v.  Dunlap  (Okl.) 
72  Pac.  365;  Riggins  v.  Thompson  (Tex.  Civ. 
App.)  70  S.  W.  578;  Deemar  v.  Boyne,  103 
111.  App.  464;  Landes  v.  "Walls  (Ind.)  66  N.  E. 
679.  Question  of  removal  or  title  to  office — 
Marshall  v.  Board  of  Managers  of  Illinois 
State   Reformatory,    201   111.    9. 

72.  See   Bispham's   Equity. 

73.  A  justice  of  the  peace  will  not  be  pre- 
vented from  acting  in  regard  to  a  matter  of 


67 


Wash 
69. 


which  he  has  Jurisdiction — Kllnesmlth  v. 
Van  Bramer,  104  111.  App.  384.  Where  irrep- 
arable injury  is  being  done  or  threatened 
to  land,  going  to  destroy  the  substance  of 
the  estate  when  the  title  is  in  dispute,  equity 
will  interfere  to  prevent  trespass  and  to 
preserve  the  property  until  the  question  of 
title  is  determined  at  law,  though  no  ac- 
tion for  that  purpose  has  been  begun,  if 
plaintiff  intends  immediately  to  begin  such 
an   action — Freer  v.   Davis,   52  W.   Va.   1. 

The  proper  remedy  to  restrain  unauthor- 
ized exercise  of  the  power  of  eminent  do- 
main in  Arkansas  is  a  suit  in  equity  for 
injunction — St.  Louis  &  S.  F.  R.  Co.  v.  South- 
western Tel.  &  T.  Co.  (C.  C.  A.)  121  Fed. 
276. 

74.  A  written  Instrument  Trill  be  can- 
celled or  reformed  for  mutual  mistake,  acci- 
dent, undue  advantage  or  other  equitable 
ground — Null  v.  Elliott,  52  W.  Va.  229; 
Youngstown  Electric  Light  Co.  v.  Butler 
County  Poor  Dist.,  21  Pa.  Super.  Ct.  95;  Nut- 
ter V.  Brown  (W.  Va.)  42  S.  E.  661;  Enos  v. 
Stewart,  138  Cal.  112,  70  Pac.  1005.  Where 
the  agent  of  a  grantee  drew  the  deed  includ- 
ing by  mistake  more  land  than  was  intend- 
ed, and  land  for  which  no  consideration  was 
paid,  the  grantee  will  not  be  allowed  to 
profit  by  the  mistake  in  order  to  defeat  a 
suit  for  reformation — Barry  v.  Rownd  (Iowa) 
93    N.    W.    67. 

A  suit  may  be  maintained  by  the  United 
States  to  set  aside  patents  erroneously  is- 
sued under  a  grant  to  a  railroad  company 
and  to  test  the  good  faith  of  bona  fide  pur- 
chasers thereof  and  establish  their  rights  in 
such  lands  and  in  the  same  suit  an  account- 
ing may  be  required  from  the  railroad  com- 
pany regarding  the  lands  sold  by  it  and 
the  amount  received  therefor  recovered  by 
decree.  Under  Acts  March  3,  1887,  Feb.  12, 
1S96  and  March  2,  1896 — United  States  v. 
Southern  Pac.  R.  Co.,  117  Fed.  544. 

75.  The  former  treasurer  of  a  corporation, 
and  also  a  bank  in  which  its  funds  were  de- 
posited with  knowledge  of  their  ownership 
and  fraudulent  withdrawal  by  the  treasurer 
to  be  converted  to  his  own  use,  may  be  re- 


§  2 


LACHES. 


1063 


Separate  articles  pertaining  to  each  of  the  several  subjects  of  equitable  jurisdic- 
tion and  to  each  equitable  remedy  should  be  consulted.''* 

§  3.  Laches  and  acquiescence. — Laches  will  prevent  interference  of  equity/' 
when  to  grant  complainant  relief  would  presumptively  be  inequitable  and  unjust 
because  of  the  delay  ;''^  change  of  condition  during  negligent  delay  being  essen- 
tial.'^®  Laches  is  not  imputed  to  the  public  exercising  governmental  functions.*" 
It  may  occur  in  failure  to  assert  a  legal  remedy  or  defense.^^  What  conduct 
amounts  to  laches  depends  upon  the  peculiar  circumstances  of  each  case  where 
no  analo2:ous  statute  of  limitations  exists  at  law.^^ 


quired    to    account — Hunter   v.    Robbins,    117 
Fed.    920. 

76.  See  titles  like  Cancellation  of  Instru- 
ments; Contribution;  Discovery  and  Inspec- 
tion;  Injunctions;    Trusts. 

77.  Phillips  V.  Piney  Coal  Co.  (W.  Va.)  44 
S.  E.  774;  Crawford  Co.  v.  Hathaway  (Neb.) 
93  N.  "W.  781.  By  reason  of  the  maxim, — 
"Equity  aids  the  vigilant  and  not  the  sloth- 
ful." 

78.  Hahn  v.  Gates,  102  111.  App.  385.  De- 
lay will  not  prevent  relief  where  it  does 
not  appear  that  defendant  has  suffered  any 
disadvantage  from  complainant's  mere  delay 
— Williams  v.  Starkweather,  24  R.  I.  512. 
Laches  in  a  suit  to  enforce  an  award  for 
land  taken  for  a  railroad  right  of  way,  is  not 
shown  where  the  denial  of  payment  is  not 
controverted  and  the  claim  has  been  contin- 
uously asserted  and  acknowledged  by  the 
other  party  and  his  predecessors — Southern 
R.  Co.  V.  Gregg  (Va.)   43  S.  E.  570. 

79.  O'Brien  v.  Wheelock,  184  U.  S.  450, 
46  Law  Ed.   636. 

Delay  such  that  m.emcries  of  those  having 
knowledge  of  the  material  facts  have  weak- 
ened, amounts  to  laches — Lutjen  v.  Lutjen, 
64  N.  J.  Eq.  773.  Delay  in  bringing  suit  to 
charge  landowners  with  liability  for  levee 
assessments  during  which  time  the  owners 
of  the  property  were  constantly  changing 
and  the  property  had  become  liable  to  large 
assessments  under  a  new  statute  and  under 
expenditures  for  repair  of  the  levee — O'Brien 
v.  Wheelock,  184  U.  S.  450,  46  Law,  Ed.  636. 
A  bill  to  restrain  completion  of  a  contract 
between  the  officers  of  a  city  and  a  railroad 
company  for  elevation  of  tracks  and  the 
building  of  a  retaining  wall,  brought  by 
abutting  owners  three  months  after  the  exe- 
cution of  the  contract,  will  be  dismissed  for 
laches,  where  it  appears  that  the  railroad 
company  had  Incurred  great  expense  in  con- 
structing the  improvements  and  had  pur- 
chased land  on  the  faith  of  the  contract  be- 
fore the  bill  was  filed — Keeling  v.  Pittsburg, 
etc.,  R.  Co.,  205  Pa.  31. 

80.  A  suit  against  a  railway  corporation 
to  recover  surplus  profits  directed  by  law  to 
be  paid  the  state,  cannot  be  barred  by  laches 
of  state  officers,  the  relation  between  the 
state  and  the  corporation  raised  by  the  in- 
corporation of  the  company,  being  an  exer- 
cise of  state  sovereignty  and  not  a  business 
contract.  Right  to  surplus  profits  given  by 
local  laws  1847,  p.  77 — Terre  Haute  &  I.  R. 
Co.  V.  State,  159  Ind.  438. 

81.  Klinesmith  v.  Van  Bramer,  104  111. 
App.  384.  ^'^here  it  appears  that  the  par- 
ties are  guilty  of  neglect  in  not  presenting 
a  defense  against  a  former  suit  at  the  proper 
time  they  will  not  be  granted  relief  against 


a  judgment — Allen  v.  Poster  (Tex.  Civ.  App.) 
74  S.  W.  800.  Where  it  appears  that  flv» 
out  of  nineteen  complainants  object  to  pro- 
ceedings to  make  a  street  improvement,  on 
the  ground  that  the  several  assessments 
were  not  equal  according  to  benefits,  but  tho 
appeal  was  not  sustained  and  no  other  steps 
were  taken,  they  were  prevented  by  laches 
from  obtaining  relief  by  a  suit  to  restrain 
collection  of  the  assessments  because  of  ir- 
regularities— Gates  V.  Grand  Rapids  (Mich.) 
95  N.  W.  998.  See  ante,  §  1  (exhaustion  of 
legal  remedy). 

82.  Laches  sufficient  to  defeat  a  re-hear- 
ing and  after  interlocutory  decree,  finding 
infringement  of  a  patent,  Is  a  matter  de- 
pending on  the  facts  of  each  case  and  tho 
effect  of  the  grant  or  refusal  on  the  rights 
of  the  respective  parties — Pittsburgh  Re- 
duction Co.  V.  Cowles  Elec.  Smelting  Co.,  121 
Fed.    556. 

Conduct  amonntlng  to  Inches.  12  years' 
delay — Wilcoxon  v.  Wilcoxon,  199  111.  244. 
Three  months  where  great  expense  was 
incurred — Keeling  v.  Pittsburg,  etc.,  R.  Co., 
205  Pa.  31.  Four  years'  unexplained  delay  in 
suing  to  cancel  a  contract  (Civ.  Code  Ga.  § 
3711) — Reynolds,  etc.,  Mortg.  Co.  v.  Martin, 
116  Ga.  495.  As  against  bona  fide  purchaser 
— Fisher  v.  Patterson,  197  111.  414.  Suit  for 
accounting  brought  twenty  years  after  ac- 
crual of  action  and  acquiescence  by  plain- 
tiff in  defendant's  abandonment  of  contract 
— Tozier  v.  Brown,  202  Pa.  359.  Delay  in  en- 
forcing the  payment  of  negotiable  notes 
from  the  estate  of  an  Indorser — Tidball's 
Bx'rs  v.  Shenandoah  Nat.  Bank  (Va.)  42  S. 
B.  867.  Unexplained  delay  of  four  years 
with  knowledge  of  fraud  in  procuring  a 
contract — Gale  v.  Southern  Bldg.  &  Loan 
Ass'n,  117  Fed.  732.  Lapse  of  four  years 
after  perpetration  of  an  alleged  fraud  be- 
fore application  for  relief — Reynolds,  etc., 
Mortg.  Co.  V.  Martin,  116  Ga.  495.  Lapse  of 
time  before  suit  by  a  surviving  partner  for  an 
accounting  and  to  obtain  the  benefit  of  an 
equitable  defense  to  notes  against  the  firm 
— Wilson  V.  Wilson,  41  Or.  459,  69  Pac.  923. 
Application  for  leave  to  file  a  replication 
nunc  pro  tunc  after  an  order  dismissing  the 
cause  for  failure  to  file  such  replication  in  a 
suit  instituted  after  many  years  of  litiga- 
tion and  delay  regarding  timber  claims — 
Potts  v.  Alexander,  118  Fed.  885.  Claim 
against  estate  of  an  administrator  for  money 
claimed  to  have  been  retained  by  him  be- 
longing to  plaintiff,  not  allowed  after  30 
years — Gatewood  v.  Gatewood's  Adm'x,  24 
Ky.  L.  R.  931,  70  S.  W.  284.  20  years'  de- 
lay to  assert  a  resulting  trust  against  one 
who  would  not  recognize  it — Quairoll  v. 
Italian  Beneficial  Soc,  64  N.  J.  Eq.  205.     Bill 


1064 


EQUITY. 


§3 


Excusahle^^  delay  such  as  lack  of  knowledge  regarding  the  facts**  is  not  laches, 
unless  there  were  circumstances  which  should  have  demanded  inquiry  or  where, 


to  collect  a  legacy  nine  years  after  refusal 
of  the  executor  to  pay,  the  estate  in  the 
meantime  having  been  distributed,  though 
the  legatee  placed  the  claim  in  the  hands  of 
an  attorney  immediately  on  refusal  of  the 
executor — Wilson  v.  Smith,  117  Fed.  707. 
Delay  of  thirty  years  to  attack  a  conveyance 
of  land  from  one  Indian  to  another  approved 
by  the  Secretary  of  the  Interior  as  against 
the  grantee  and  those  claiming  under  him 
who  have  been  in  possession  all  the  time — 
Pope  V.  Falk  (Kan.)  72  Pac.  246.  Six  years 
after  contract  began,  where  the  bill  does  not 
negative  knowledge  of  the  facts  by  plain- 
tiff at  the  time  of  their  occurrence — Doane 
V.  Preston,  183  Mass.  569.  Delay  until  long 
after  the  death  of  the  immediate  parties  to 
a  purchase  at  execution  with  a  trust  In 
favor  of  the  debtor — Moore  v.  Hemp's  Ex'rs, 
24  Ky.  L.  R.  121,  68  S.  W.  1.  Bill  against  an 
innocent  purchaser  of  the  latter  premises 
filed  two  years  and  six  months  after  knowl- 
edge of  the  severance  of  a  house  from  the 
soil,  praying  a  return  of  the  house  or  an  ac- 
counting for  rents  and  value  thereof,  and 
attempting  to  establish  an  equitable  lien  for 
such  value  and  rents — Fisher  v.  Patterson, 
197  111.  414.  Contribution  against  co-ex- 
ecutor's estate  for  the  amount  he  paid  to 
legatee  denied  40  years  after  the  death  of 
the  testator — In  re  Wehrle's  Estate,  205  Pa. 
62.  Two  years"  delay  in  prosecution  of  pe- 
tition against  committee  of  lunatic,  coupled 
with  death  of  lunatic  and  administration  of 
his  estate,  held  laches — Consumers'  Brew. 
Co.  v.  Bush,  19  App.  D.  C.  588.  Ten  years' 
delay  In  filing  a  bill  to  avoid  a  release  for 
fraud  without  allegation  of  mistake, 
amounts  to  laches,  especially  where  the 
fraud  is  not  clearly  shown — Lutjen  v.  Lut- 
jen,  64  N.  J.  Eq.  773.  Ten  years'  unexplained 
delay,  before  suing  to  cancel  a  release  of 
rights  In  an  estate  for  fraud,  is  laches  where 
fraud  Is  not  shown,  nor  mistake  alleged, 
though  the  consideration  may  have  been  in- 
adequate— Id.  Money  paid  by  a  county  to 
a  state  hospital  for  the  insane  and  applied 
to  its  use,  cannot  be  recovered  after  six 
years  on  the  ground  of  mistake  and  fraud- 
ulent concealment  of  the  facts  by  the  hos- 
pital trustees — Trustees  of  State  Hospital  v. 
Philadelphia  County  (Pa.)  54  Atl.  1032.  For- 
feiture of  a  mining  lease  will  be  enforced 
whore  it  will  protect  the  landowner  against 
negligence  and  laches  of  the  lessee — 
NTegaunee  Iron  Co.  v.  Iron  Cliffs  Co.  (Mich.) 
96  N.  "W.  468.  A  delay  of  fifty  years  after 
the  death  of  her  husband,  during  which  time 
the  widow  still  lived,  will  not  constitute 
such  laches  as  will  preclude  remaindermen 
from  recovering  the  land  from  one  to  whom 
she  had  conveyed  her  quarantine  in  the 
house  after  her  husband's  death — Graham  v. 
Stafford,  171  Mo.  692.  "Where  in  a  partition 
suit  the  petitioner  first  discovered  during  the 
taking  of  testimony  that  the  land  which 
w^as  alleged  to  belong  to  his  mother  was  in 
fact  purchased  with  money  belonging  to  his 
father's  estate,  and  afterward  he  made  no 
attempt  to  regain  his  rights  as  his  father's 
sole  heir  until  a  decree  was  enrolled,  he  was 
prevented  by  laches  from  Intervening  for 
that   purpose — ^Rice   v.   Donald    (Md.)    55   Atl. 


620.  "Where  one  of  several  Interveners  In 
an  equitable  suit  who  was  admitted  with- 
out conditions  as  a  party,  remained  in  the 
case  for  17  months  without  taking  part  in 
the  proceedings  or  offering  evidence,  he  can- 
not on  petition  filed  after  the  close  of  the 
testimony  be  allowed  full  charge  of  the  suit 
as  complainant  on  an  averment  that  there 
was  collusion  between  the  original  parties, 
of  which  no  other  intervener  complains  and 
as  to  which  he  offers  no  evidence  except 
certain  testimony  in  the  record,  which  per- 
tained to  other  issues  and  was  taken  In  a 
previous  stage  of  the  litigation — Edwards  v. 
Bay  State  Gas.  Co.,  120  Fed.  585. 

Conduct  not  anionntin^  to  laches.  Suf- 
ficiency of  facts  in  a  suit  for  dissolution  of 
a  partnership  and  an  accounting  to  rebut 
presumption  of  laches,  arising  from  delay 
for  12  years — Wilcoxon  v.  Wilcoxon.  199  111. 
244.  Defendant  cannot  be  held  guilty  of 
laches  where  he  defended  his  title  to  proper- 
ty when  assailed  and  there  was  no  delay 
which  would  not  apply  equally  as  well  to 
plaintiff — Marshall  v.  Meyer.  118  Iowa,  508. 
Where  a  note  drawing  ten  per  cent  interest 
ind  well  secured,  was  sued  upon  eight  years 
after  its  maturity,  recovery  is  not  barred 
by  laches,  where  the  payee's  administratrix 
lived  only  two  years  after  the  maturity,  and 
the  administrator  succeeding  her  died  be- 
fore the  estate  was  closed,  and  it  does  not 
■appear  that  the  defendants  had  been  injured 
by  the  delay — Luke  v.  Koenen  (Iowa)  94  N. 
W.  278. 

83.  Delay  caused  by  constant  assurance 
of  his  agent  residing  in  the  vicinity,  that  a 
suit  would  be  useless,  and  by  frequent  prom- 
ises that  payment  of  a  debt  will  be  secured 
without  suit.  Is  not  laches — Gushing  v. 
Schoeneman  (Neb.)  96  N.  "W.  346.  Delay 
due  mainly  to  the  adversary's  urgent  ap- 
peals for  time  and  Inability  to  meet  his  ob- 
ligation— Hellans  v.  Prior,  64  S.  C.  296.  De- 
lay while  in  possession — Sheldon  v.  Dunbar 
200  111.  490.  Tenant  In  common  In  posses- 
sion— Brumback  v.  Brumback,  198  111,  66. 
Where  complainants  on  learning  of  an  ad- 
verse claim  to  lands  in  another  state  at 
once  notified  the  claimants  of  their  inten- 
tion to  assert  their  rights,  they  were  not 
chargeable  with  laches  during  the  period 
in  which  both  parties  were  attempting  to  se- 
cure an  adjustment  of  the  claims  by  the  Unit- 
ed States  land  office — Hodge  v.  Palms  (C. 
C.  A.)  117  Fed.  396.  That  complainant's  at- 
torney could  not  attend  the  trial  of  their 
case.  Is  not  sufficient — Aultman  v.  Higbee 
(Tex.  Civ.  App.)  74  S.  W.  955.  See,  also, 
like  cases  in  Default,  ante.  p.  915. 

84.  Heirs  whose  ancestor  -n'as  domiciled 
in  another  state  and  whose  will  was  there 
probated,  are  not  chargeable  with  proceed- 
ings for  the  settlement  of  his  succession  in 
which  his  land  was  sold  so  as  to  be  pre- 
vented by  laches  from  asserting  their  rights 
in  such  property,  where  they  brought  suit 
within  two  years  after  first  knowledge  of 
the  adverse  claim  of  the  purchaser — Fletch- 
er V.  McArthur  (C.  C.  A.)  117  Fed.  393. 
Sixty-seven  years'  delay  before  filing  of  the 
bill  to  cancel  for  fraud  In  procurement  of 
deed  where  complainants  only  suspected   the 


§  3 


LACHES. 


1065 


after  notice  of  the  facts,  the  party  failed  to  obtain  knowledge  where  it  might 
have  been  obtained.^^  A  member  of  an  Indian  tribe  is  not  for  that  reason  re- 
leased from  the  necessity  of  diligence  in  asserting  his  rights  in  equity.^"  A  mar- 
ried woman  in  W^'est  Virginia  is  liable  to  the  consequences  of  laches  as  though  a 
feme  sole,  since  she  may  deal  with  her  separate  estate  as  such.*^  It  has  been  held 
in  'New  York  that  no  question  of  laches  strictly  speaking  is  involved  in  an  action 
for  fraud  under  the  code;  and  that  whether  the  equitable  doctrine  of  laches  still  ex- 
ists in  that  state  is  doubtful.^^ 

Application  of  analogous  statutes  of  limitation. — Generally  the  time  prevail- 
ing in  analogous  cases  at  law  will  be  adopted  in  equity  to  bar  causes  of  action,®" 
with  the  same  exceptions.""  It  will  especially  be  done  where  jurisdiction  is  con- 
current/^ and  as  to  legal  rights  sought  to  be  enforced."^     Equity  is  disinclined 


fraud  within  tliree  years  before  commence- 
ment of  the  suit  and  had  no  actual  proof 
until  within  one  year — McGee  v.  "Welch,  18 
App.  D.  C.  177.  Delay  by  heirs  where  an 
administrator  and  a  widow  fraudulently 
concealed  part  of  the  decedent's  estate,  and 
represented  that  he  died  without  other  heirs, 
and  the  widow's  estate  on  her  death  later 
Included  a  large  part  of  the  property  to 
which  the  children  of  a  brother  of  the  de- 
cedent were  entitled  and  which  was  Intact 
and  could  be  reached  by  the  court  and  for 
■which  the  administrator  had  never  account- 
ed— Maney  v.  Casserly  (Mich.)  96  N.  W.  478. 
Suit  to  restrain  action  on  a  judgment  en- 
tered bj''  default,  where  it  appears  that  de- 
fendant to  the  judgment  was  assured  by 
plaintiff's  attorneys  that  he  might  enter  ap- 
pearance at  any  time  and  that  no  advantage 
should  be  taken  of  his  delay  and  that  a  judg- 
ment and  default  was  entered  without  his 
knowledge,  which  he  did  not  discover  until 
two  years  later  when  he  Immediately  took 
steps  to  have  it  set  aside — Brooks  v.  Twitch- 
ell,  182  Mass.  443. 

85.  Wall  V.  Meilke  (Minn.)  94  N.  "W.  688. 
Circumstances  sufficient  to  excite  suspicion 
— Coolidge  V.  Khodes,  199  111.  24.  Not  ex- 
cused by  alleging  generally  in  the  bill  that 
they  had  no  knowledge  of  the  fraud  until 
three  months  before  suit,  where  it  is  not 
shown  that  they  made  no  inquiry  though 
the  means  of  knowledge  was  accessible — 
Kessler  v.  Ensley  Co.,  123  Fed.  546. 

86.  The  validity  of  a  deed  of  land  be- 
longing to  a  Shawnee  Indian,  sold  by  his 
guardian  while  he  was  a  minor,  cannot  be 
attacked  by  the  Indian  more  than  21  years 
after  attaining  his  majority  for  want  of 
jurisdiction  over  the  proceedings,  where  no 
fraud  is  shown  and  the  property  has  mean- 
time greatly  increased  In  value — Dunbar  v. 
Green    (Kan.)    72   Pac.   243. 

87.  Phillips  V.  Piney  Coal  Co.  (W.  Va.)  44 
S.   B.  774. 

88.  Code  Civ.  Proc.  §  382,  subd.  5 — Slay- 
back  V.  Raymond.  40  Misc.  (N.  Y.)  601. 
[Quoting  the  court  of  appeals,  "whether  the 
equitable  doctrine  of  laches,  as  distinguish- 
ed from  the  statute  of  limitations,  now  ex- 
ists in  this  state,  is  open  to  serious  doubt." 
156  N.  Y.  491;  13  Hun,  273;  39  App.  Div. 
276;  121  N.  Y.  69,  cannot  be  considered  an 
authority  on  this  point.] 

89.  Parmelee  v.  Price,  105  111.  App.  271; 
Watson  V.  Texas  &  P.  R.  Co.  (Tex.  Civ.  App.) 
73  S.  W.  830;  Sioux  City,  etc.,  R.  Co.  v, 
O'Brien  County,  118  Iowa,   582. 


IIln.«tratlons.  Suit  to  enforce  an  equitable 
lien  within  the  time  allowed  for  the  same 
action  at  law — Michigan  Trust  Co.  v.  Red 
Cloud  (Neb.)  92  N.  W.  900.  A  direct  pro- 
ceeding to  set  aside  a  Judgment  and  sale 
of  land  thereunder.  Is  not  within  statute 
allowing  bills  of  review  for  a  new  trial  with- 
in two  years  after  judgment  rendered  on 
service  of  process  by  publication,  but  the 
four  years'  limitation  applies  (Rev.  St.  1S95, 
arts.  1375,  3358  construed) — State  v.  Dashiell 
(Tex.  Civ.  App.)  74  S.  W.  779.  A  bill  for  ap- 
pointment of  commissioners  to  assign  dower 
filed  seven  years  after  the  death  of  the  hus- 
band is  barred  by  the  statute — Crawford  v. 
Watkins  (Ga.)  45  S.  B.  482.  Where  a  land 
patent  accrued  32  years  before  interveners 
asked  for  relief  and  the  limitation  at  law 
was  five  years,  and  the  intervenors  showed 
no  excuse  for  delay,  they  were  not  entitled 
to  relief  in  equity,  where  an  innocent  pur- 
chaser had  bought  the  land  relying  on  the 
patent — Boynton  v.  Haggart  (C.  C.  A.)  120 
Fed.  819.  Where  a  judgment  was  recovered 
but  two  months  before  an  original  bill  was 
brought  to  subject  equitable  assets  to  Its 
payment  and  the  bill  was  amended  five  years 
later  to  change  it  to  a  general  creditor's 
bill,  the  statute  of  limitations  did  not  begin 
to  run  until  the  recovery  of  judgment,  and 
the  amended  bill  was  not  barred  by  laches 
since  it  was  filed  within  six  years  from  the 
accrual  of  the  action — Montgomery  Iron 
■Works  V.  Capital  City  Ins.  Co.  (Ala.)  34  So. 
210. 

So  in  Federal  courts — Potts  v.  Alexander, 
118  Fed.  885.  That  the  state  statute  of  limi- 
tations gives  10  years  for  bringing  an  action 
to  recover  land,  does  not  prevent  a  federal 
court  of  equity  from  refusing  to  Interfere 
on  account' of  laches  by  suit  to  set  aside  the 
conveyance  for  fraud,  which  can  only  be 
done  in  equity,  though  the  suit  was  com- 
m.enced  within  the  10  years — Kessler  v. 
Ensley  Co.,  123  Fed.  546. 

90.  Newberger    v.    Wells,    51    W.    Va.    6  24. 

91.  Where  the  title  of  complainant  to 
lands  on  which  he  bases  his  right  to  relief 
in  equity  is  legal  and  capable  of  establisli- 
ment  at  law  the  doctrine  of  laches  will  not 
apply,  but  his  rights  will  be  barred  by  ad- 
verse possession  alone,  since  on  generai 
principles  equity  will  follow  the  law — Hig- 
gins  Oil  &  Fuel  Co.  v.  Snow  (C.  C.  A.)  113 
Fed.   433. 

92.  Sibley  v.  Stacey  (W.  Va.)  44  S.  B. 
420;  Higgins  Oil  &  Fuel  Co.  v.  Snow  (C.  C. 
A.)    113    Fed.    433.     A   proceeding    to    enforce 


1066 


EQUITY, 


§  + 


to  find  laches  when  limitations  have  not  run.^^  If  a  suit  is  brought  within  the 
time  fixed  by  the  analogous  statute  of  limitations,  defendant  must  show  laches 
to  exist  either  from  the  face  of  the  bill  or  by  circumstances  set  up  in  his  an- 
swer, but  if  the  suit  is  brought  after  the  statutory  period,  complainant  must  show 
facts  taking  the  case  out  of  the  rule  as  to  laches.^* 

Under  the  codes,  the  doctrine  of  laches  will  not  be  applied  in  equity,  where 
the  statute  has  defined  the  time  within  which  suit  may  be  brought.^' 

§  4.  Practice  and  p-ocedure  in  general — Courts  of  equity  are  always  open, 
in  the  absence  of  a  statute  to  the  contrary.''^  The  filing  of  the  bill  is  the  com- 
mencement of  a  suit  in  equity,"  and  jurisdiction  is  obtained  by  service  of  process 
thereon  or  of  a  substituted  service  which  must  conform  to  all  statutory  require- 
ments, appearance,  or  pleading  by  the  defendant.^^  The  place  or  local  court 
wherein  a  bill  must  be  brought  is  reserved  for  treatment  in  a  later  article.^*  The 
distinction  between  actions  at  law  and  suits  in  equity  is  strictly  maintained  in 
the  federal  courts.* 

§  5.  Parties. — One  party  may  sue  for  a  number  similarly  situated.*  Where 
on  a  bill  to  distribute  the  assets  of  a  corporation  after  abandonment  by  the  stock- 
holders, it  appears  that  there  were  25,000  shares  of  stock  about  one-third  of  which 
was  held  by  persons  living  in  all  parts  of  the  country  and  whose  residences  could 


statutory  liability  of  a  stockholder,  either 
at  law  or  in  equity,  is  founded  on  a  legal, 
not  an  equitable,  right,  and  If  the  right  to 
enforce  such  liability  is  barred  at  law,  the 
same  limitation  will  be  applied  by  analogy 
In  equity— Hale  v.  Coffin  (C.  C.  A.)  120  Fed. 
470.  „ 

93.  Hahn  v.  Gates,  102  111.  App.  385.  Ex- 
traordinary circumstances  will  move  it  to  do 
so — Ide  V.  Trorlicht,  etc..  Carpet  Co.  (C.  C. 
A.)  115  Fed.  137.  Where,  by  reason  of 
laches  of  complainant,  it  is  doubtful  whether 
defendant  can  secure  evidence  sufficient  to 
fairly  present  his  case  or  obtain  the  ad- 
vantages which  he  might  have  had.  or  avoid 
any  liardships  that  might  have  been  avoid- 
ed, if  the  claim  had  been  made  in  seasonable 
time,  relief  will  not  be  granted  in  equity 
though  the  limitation  to  be  applied  to  a 
remedy  at  law  has  not  expired — Wilson  v. 
Wilson.  41  Or.  459,  69  Pac.  923. 

94.  Boynton  v.  Haggart  (C.  C.  A.)  120 
Fed.   819.  ^^   ^  ^ 

95.  Slayback  v.  Raymond,  40  Misc.  (N.  T.) 
601.  An  action  for  reformation  of  a  written 
Instrument  for  mistake  is  not  barred  by  any 
statute  of  limitations  in  Minnesota — Wall  v. 
Meilke  (Minn.)  94  N.  W.  688.  In  Montana 
the  rule  of  statute  that  actions  for  relief  not 
previously  provided  for  as  to  -limitation 
must  commence  within  five  years  after  ac- 
crual of  the  cause,  applies  to  suits  in  equity 

jiantle  v.  Speculator  Min.  Co.,  27  Mont.  473, 

71  Pac.    665. 

98.  Webb  V.  Hicks,  117  Ga.  335;  Mitchell 
V    Turner.  117  Ga.   958. 

97.  Humane   Bit   Co.   v.    Barnet,    117    Fed. 

When  an  action  Is  commenced  It  Is  fre- 
quentlv  fixed  by  statute  under  the  codes. 
In  general  see  Actions  ante.  p.  20.  Under 
West  Virginia  statutes  filing  of  bill  relates 
back  to  issuance  of  process — Geiser  Mfg.  Co. 
V.  Chewning,  52  W.  Va.  523. 

98.  Suit  to  set  aside  administration,  In 
which  no  summons  was  served  on  the  ad- 
ministrator and  no   pleading  filed   by  him — 


Costa  V.  Superior  Court,  137  Cal.  79,  69  Pac. 
840.  No  allegation  of  actual  notice  and  de- 
fective affidavit  for  substituted  service — 
Barker  v.   Barker.   63  N.  J.  Eq.   593. 

See  generally  articles.  Jurisdiction;  Pro- 
cess. 

Published  service  gives  jurisdiction  only 
for  purposes  of  the  bill — McGaw  v.  Gortner, 
96  Md.  489.  Jurisdiction  to  act  upon  the 
person  Is  not  obtained  by  publication.  See 
Jurisdiction;  Process.     Also,  ante,  §  2. 

99.     Venue  and  Place  of  Trial. 

1.  Highland  Boy  Gold  MIn.  Co.  v.  Strlck- 
ley  (C.  C.  A.)  116  Fed.  852.  Misjoinder — 
United  States  v.  Boyd,  118  Fed.  89.  Pro- 
cedure Is  controlled  by  the  7th  amendment 
to  the  Constitution  and  §  16  of  the  Judiciary 
Act  of  September  24,  1789.  and  the  propriety 
of  bringing  a  case  at  law  or  In  equity,  must 
be  determined  with  reference  to  those  pro- 
visions— Jones  v.  Mutual  Fidelity  Co..  123 
Fed.  506.  The  federal  statute  requiring 
their  practice  to  conform  as  nearly  as  pos- 
sible to  the  state  practice  did  not  abolish  the 
distinction  between  actions  at  law  and  suits 
in  equity  In  federal  courts  (Rev.  St.  §  914) 
— Hill  V.  Northern  Pac.  R.  Co.  (C.  C.  A.) 
113  Fed.  914. 

Non-resident  defendants  served  by  publi- 
cation In  a  suit  to  subject  lands  of  their 
ancestor  to  a  debt  in  favor  of  plaintiff,  are 
not  parties  for  any  other  purpose — McGaw 
V.  Gortner   (Md.)   54  Atl.  133. 

2.  Preferred  creditors  who  are  constituted 
trustees  to  collect  and  distribute  money  are 
liot  similarly  situated  to  otlier  creditors  not 
preferred — Beecher  v.  Foster  (W.  Va.)  42  S. 
E.  647.  Depositors  of  grain  in  elevator  de- 
nied right  to  sue  for  all  under  Hill's  Ann. 
Laws.  §  385.  merely  on  the  ground  of  imprac- 
ticability of  joining  all — Tobin  v.  Portland 
Flouring  Mills  Co.,  41  Or.  269.  68  Pac.  743, 
1108.  As  to  who  are  regarded  as  parties 
on  a  proceeding  to  punish  violation  of  a  bill 
against  named  defendants  and  their  "asso- 
ciates, confederates,"  etc.,  see  Ex  paite  Rich- 
ards. 117  Fed.  658. 


§  5 


PARTIES. 


1067 


not  be  ascertained,  the  court  was  properly  authorized  in  its  discretion  to  allow 
the  principal  and  largest  stockholders  fairly  representing  the  adverse  interests  of 
all  to  represent  such  stockholders  as  defendants  and  to  dispense  with  the  bringing 
in  of  all  interested  parties.^ 

The  law  making  obligations  joint  and  several  so  that  joint  obligors  are  not 
always  necessary  parties  does  not  change  the  rule  as  to  propriety  of  making  all  inter- 
ested persons  parties.*  Where  it  appears  that  a  third  person  has  an  interest  in  the 
sul.tject-matter,  the  court  must  of  its  o^vn  motion  stay  the  suit  and  require  him 
to  be  made  a  party  defendant.^  The  sufficiency  of  interest  to  render  one  a  proper 
or  necessary  party,  depending  upon  the  particular  circumstances  of  the  case  is 
discussed  by  cases  in  the  note  but  will  be  exhaustively  treated  in  "Parties."^ 

Defendants  sued  for  an  accounting  of  property  should  be  shown  to  have  a 
common  title  or  to  have  come  by  the  property  in  the  same  way/  There  is  no 
misjoinder  of  defendants  where  there  is  a  joint  defense  and  the  law  and  testi- 
mony with  regard  to  each  defendant  is  the  same  and  their  several  acts  are  such 
as  may  be  included  in  one  bill  for  an  injunction.^  If  a  want  of  parties  does  not 
appear  from  the  bill,  a  demurrer  will  not  reach  the  defect.^  Where  a  defect  of 
parties  is  not  raised  by  answer  or  demurrer,  it  is  waived."  After  a  demurrer 
sustained  for  misjoinder  of  complainants,  the  bill  may  be  amended  by  dismissal 
as  to  the  complainant  without  interest.^^ 

Bringing  in  new  parties;  intervention}- — New  parties  defendant  can  be  added 


S.  Noble  V.  Gadsden  Land  &  Imp.  Co.,  133 
Ala.    250. 

4.  Craig  v.   McKnfg-ht,   108   Tenn.   690. 

5.  In  partition — Latham  v.  Tombs  (Tex. 
Civ.  App.)  73  S.  W.  1060. 

6.  Suit  to  recover  stock  in  a  corporation 
sold  to  person  forbidden  by  its  by-laws  and 
to  restrain  further  sale  in  violation  of  such 
by-laws — Champollion  v.  Corbin,  71  N.  H. 
78.  Persons  not  in  esse  who  may  have  an 
interest  in  property  are  not  necessary  par- 
ties to  an  equitable  action  for  sale  thereof, 
under  Pub.  Laws  1903.  p.  122.  c.  99 — Smith 
V.  Gudger  (N.  C.)  45  S.  E.  955.  Since  the 
county  court  is  not  the  agent  of  the  county, 
nor  the  county  a  party  to  proceedings  there- 
in to  lay  out  a  highway,  the  county  cannot 
be  made  a  party  to  a  bill  by  an  adjoining 
land  owner  to  vacate  the  proceedings — 
Searcy  v.  Clay  County  (Mo.)  75  S.  W.  657. 
Claimant  but  not  the  attorney  held  a  neces- 
sary party  to  recover  sum  from  which  attor- 
ney was  to  be  paid,  under  Rev.  St.  1898,  § 
2603 — Kircher  v.  Pederson  (Wis.)  93  N.  W. 
813.  Suit  to  quiet  title  to  lands  held  from 
state  and  to  cancel  other  writings  affecting 
title— Bent  v.  Hall  (C.  C.  A.)  119  Fed.  342. 
The  general  rule  that  complainant  cannot 
be  compelled  to  make  another  defendant  on 
the  latter's  application,  is  particularly  true 
where  the  bill  contains  no  allegations  con- 
necting the  third  person  with  the  subject- 
matter  of  the  litigation — Doke  v.  Williams 
(Fla.)  34  So.  569.  Relief  will  not  be  re- 
fused in  a  federal  court  because  of  failure 
to  join  one  as  defendant  who  is  out  of  the 
Jurisdiction,  where  he  has  no  interest  in 
the  subject  matter  which  will  be  affected 
by  a  decree — Mackay  v.  Gabel,  117  Fed.  873. 
In  a  suit  by  the  treasurer  of  a  corporation 
the  proper  custodian  of  its  funds  and  trustee 
of  an  express  trust  in  his  own  name  against 
his  predecessor  for  an  accounting  of  money 
wrongfully  withheld,  the  corporation  need 
not    be   joined    in    the    federal    court    where 


its  Joinder  would  oust  Jurisdiction,  under 
equity  rule  47 — Hunter  v.  Robbins,  117  Fed. 
320. 

Injunctions.  A  lessee  under  an  Illegal 
lease  is  not  necessary  to  a  bill  to  enjoin 
an  ofHcer  from  further  execution  of  such 
leases — Cherokee  Nation  v.  Hitchcock,  187 
U.  S.  294,  47  Law.  Ed.  183.  Suit  to  restrain 
a  purchaser  from  paying  any  of  the  price 
to  the  grantor's  agent  who  procured  the 
sale  and  to  restrain  the  agent  from  receiv- 
ing it,  and  cross  suit  to  surrender  notes 
for  agent's  commission — Daugherty  v.  Cur- 
tis (Iowa)   97  N.  W.  67. 

Suit  for  infrinseiuent.  Licensee — Peters 
V.  Union  Biscuit  Co.,  120  Fed.  679.  To  en- 
force liens  on  corporate  property — Godchaux 
V.  Morris  (C.  C.  A.)  121  Fed.  482.  The  heirs 
of  a  deceased  co-ov/ner — Taylor  v.  Forbes' 
Adm'x  (Va.)  44  S.  E.  888.  Creditors  over 
whom  priority  was  claimed  held  necessary 
parties  to  the  suit — Beecher  v.  Foster  (W. 
Va.)    42  S.  E.   647. 

To  set  aside  or  cancel.  Grantor  or  Judg- 
ment debtor — Homestead  Min.  Co.  v.  Reyn- 
olds. 30  Colo.  330,  70  Pac.  422;  Schneider  v. 
Patton  (Mo.)  75  S.  W.  155;  Mackay  v.  Gabel, 
117  Fed.  873.  Co-heir — Williams  v.  Crabb 
(C.   C.   A.)    117    Fed.    193. 

7.     Griffin  v.  Henderson,  116  Ga.  310. 

United  States  v.  Dastervignes,  118  Fed. 


8. 

199. 

9. 

10 


Walling  V.  Thomas,  133  Ala.   426. 
Farmers'   &  Merchants'   Bank  v.   Rob- 
inson,  96   Mo.   App.   385. 

11.  Victor  Talking  Mach.  Co.  v.  American 
Graphaphone  Co.,   118   Fed.   50. 

12.  Where  a  suit  Is  referred  to  the  vice 
chancellor  before  whom  "all  proceedings" 
shall  be  then  had  (Chancery  Rule  49),  the 
advisory  master  is  deprived  of  authority  to 
admit  new  parties.  Under  rule  49  of  the 
Chancery  Practice — Perrine  v.  Perrine,  63  N. 
J.   Ea-    483. 


1068 


EQUITY. 


§  6A 


by  defendant  only  when  the  allegations  of  the  original  petition  will  warrant  it." 
If  an  answer  is  not  intended  as  a  mere  defense  but  affects  the  right  of  a  co-de- 
fendant, he  must  be  made  a  party  thereto  and  relief  must  be  asked  against  him 
on  the  facts." 

Leave  to  file  a  petition  of  intervention  after  a  cause  has  stood  for  a  long 
time  rests  in  the  sound  discretion  of  the  trial  chancellor  and  will  not  be  reviewed 
imless  an  abuse  of  such  discretion  is  shown.^^  ^Yhere  the  court,  in  a  suit  for  dis- 
tribution of  property  of  an  insolvent  railroad  companj--,  ordered  all  creditors  to 
appear  before  a  master  and  prove  there  the  claims,  one  who  asserts  a  right  to 
preferred  payment  over  other  claims  may  do  so  by  intervention  under  the  order 
and  need  not  file  an  original  bill."  Intervention  is  limited  to  the  issues,  within 
the  scope  of  the  original  bill,^^  and  the  intervenor's  allegations  must  be  construed 
as  pleading  in  connection  with  the  averments  of  the  original  bill.^^ 

§  6.  Pleading.  A.  General  rules. — A  pleading  will  be  construed  most 
strongly  against  the  pleader."  The  rule  requiring  certainty  in  pleadings  is  to 
furnish  the  court  proper  foundation  for  judgment  if  the  pleadings  are  held  true.-<> 
Scandalous  matter,  raising  no  issues  may  be  expunged."  The  objection  of  an 
adequate  remedy  at  law  must  be  made  at  the  earliest  opportunity  and  before  de- 
fense upon  the  merits.^^ 

(§  G)  B.  Original  hill,  petition,  or  complaint. — A  bill  seeking  discovery  need 
not  be  verified,  where  only  incidental  to  the  main  object  of  the  suit.-'  A  petition, 
the  allegations  of  which  do  not  authorize  relief  prayed  for,  will  be  dismissed  on 
general  demurrer,  if  there  is  no  prayer  for  general  relief.''* 

Bill  or  petition. — Continuation  of  a  suit  in  equity  by  heirs,^'  or  an  applica- 
tion by  a  trustee  for  direction,  where  no  suit  is  pending,^^  should  be  by  bill  and 
not  by  petition.  Eights  of  third  persons  in  subject-matter  of  a  suit  should  be 
presented  by  an  appropriate  bill  and  not  by  petition,  though  beneficiaries  of  a 
trust  may  intervene  by  petition,  where  the  trustee  is  a  party.^^  A  bill  not  printed 
and  not  accompanied  by  a  certificate  that  there  was  no  time  to  print  it,  nor  in- 
dorsed by  notice  to  appear,  and  which  does  not  set  forth  that  it  was  filed  or  in- 
tended to  be  filed  in  a  court  sitting  in  equity,  is  only  a  petition.-^ 


13.  Roberts  v.  Atlanta  Real  Estate  Co. 
(Ga.)   45  S.   E.   308. 

14.  Turner   v.   Stewart,   51  "W.  Va.   493. 

15.  Gunderson  v.  Illinois  Trust  &  Sav. 
Bank,  199  111.   422. 

Persons  allowed  to  come  in  to  protect 
interest — Foley  v.  Grand  Hotel  Co.  (C.  C.  A.) 
121  Fed.  509. 

16.  Central  R.  &  Banking  Co.  v.  Farmer's 
Loan  &  Trust  Co.,  116  Fed.  700;  Farmer's 
Loan  &  Trust  Co.  V.  Central  R.  &  Banking 
Co.,  Id. 

17.  Intervention  to  assert  a  hostile  claim 
denied  in  partition — Rice  v.  Donald  (Md.)  55 
Atl.  620.  On  bill  by  receiver  of  a  railroad 
filed  to  restrain  the  removal  of  a  spur  track 
by  another  company  which  connected  a  brick 
yard  with  the  main  line  of  receiver's  road, 
petition  by  the  owner  of  the  brick  yard  in- 
tervening to  protect  his  right  under  a  con- 
tract with  the  receiver's  company  sustained 
against  demurrer — Receiver  of  Cent.  R.  & 
Banking  Co.  v.  Macon,  etc.,  R.  Co.,  115  Fed. 
926. 

18.  Receiver  of  Cent.  R.  &  Banking  Co.  v. 
Macon,  etc.,  R.  Co.,  115  Fed.  926. 

19.  Stof'kton  V.  National  Bank  of  Jackson- 
ville (Fla.)  34  So.  897;  Johnson  v.  McKinnon 
(Fla.)  34  So.  272.  Where  a  bill  by  heirs  for 
accounting   for   coal   removed    by   defendants 


from  under  streets  and  lots,  alleges  that  the 
ancestor  of  complainants  platted  and  con- 
veyed most  of  the  lots  and  died  seized  of 
two  lots,  it  will  be  presumed  that  the  coal 
was  removed  after  such  conveyances  alleged 
in  the  absence  of  a  contrary  allegation — 
Brewster  v.  Cahill.  199  111.  309. 

20.  Becklenberg  v.  Becklenberg,  102  111. 
App.  604. 

21.  Morrison  v.   Snow   (Utah)    72  Pac.   924. 

22.  United  States  v.  Southern  Pac.  R.  Co., 
117  Fed.  544.  Where  the  defense  of  an  ade- 
quate remedy  at  law  has  not  been  pleaded 
in  an  action  for  specific  performance,  plain- 
tiff will  not  be  compelled  to  abandon  the 
equitable  remedy — Le  Vie  v.  Fenlon,  39  Misc. 
(N.  Y.)  265.  Defendant  in  a  suit  to  quiet  ti- 
tle, who  stipulates  for  trial  of  the  cause 
before  a  master,  w^aives  any  objection  to 
jurisdiction  in  equity  on  the  ground  that 
plaintiff's  remedy  is  at  la^v — Sanders  v.  Vil- 
lage of  Riverside  (C.  C.  A.)  118  Fed.  720;  Vil- 
lage of  Riverside  v.   Sanders.  Id. 

23.  Montgomery  Iron  "U^orks  v.  Capital 
City  Ins.  Co.   (Ala.)   34  So.  210. 

24.  Copeland  v.  Cheney,  116  Ga.  685. 

25.  Kronenberger  v.  Heinemann,  104  111. 
App.   156. 

26.  Stapylton  v.  Neeley   (Fla.)   32  So.   868. 

27.  Doke  v.  Williams    (Fla.)   34  So.  569. 


§  6B 


PLEADING. 


1069 


Exhibits  as  part  of  hill. — General  allegations  in  a  bill  supported  by  exhibits 
attached  must  be  taken  as  qualified  and  limited  by  the  exhibits.^®  If  a  bill  for 
infringement  of  a  patent  makes  profert  of  the  patent,  it  constitutes  a  part  of  the 
bill  and  may  be  examined  on  demurrer.^"  A  description  in  a  bill  concerning  lands 
is  sufficient  especially  on  interlocutory  hearing  where  it  refers  for  such  descrip- 
tion to  a  trust  deed  attached  to  the  bill.^^ 

Sufficiency  of  allegations. — Every  fact  necessary  to  relief  must  be  alleged 
clearly  and  definitely.^^  Facts  not  conclusions  must  be  given.^^  Immaterial  mat- 
ter should  not  be  alleged.^*  Complainant  must  allege  facts  showing  his  hands 
to  be  clean."^  and  that  he  has  not  neglected  to  protect  his  rights  at  law.^®  Fraud 
and  duress  cannot  be  alleged  in  a  general  manner,  but  the  facts  constituting  them 
must  be  given.^^  In  a  suit  to  set  aside  a  release  for  undue  influence,  particular 
acts  constituting  undue  influence  need  not  be  alleged,  it  being  necessary  only  to 
allege  the  result.^^  The  bill  must  show  that  complainant  is  not  guilty  of  laches,^** 
but  laches  need  not  be  denied  where  not  apparent  on  the  face  of  the  bill  since 


28.  Cooke  V.  Central  Dist.  Tel.  Co.,  21  Pa. 
Super.  Ct.  43. 

29.  Willard  v.  Davis,   122  Fed.   363. 

SO.  Fowler  v.  New  York  (C.  C.  A.)  121 
Fed.  747.  A  bill  by  property  owners  to  se- 
cure modification  of  a  decree  in  foreclosure 
on  the  property  and  franchise  of  a  street 
railway  company,  to  which  foreclosure  the.v 
were  not  parties,  to  secure  and  protect  their 
rights  under  an  agreement  held  to  show 
equity — Thompson  v.  Schenectady  R.  Co.,  119 
Fed.  634. 

31.  Whyte  v.   Spransy,   19   App.   D.  C.   450. 

32.  Stockton  V.  National  Bank  (Fla.)  34 
So.  897;  Johnson  v.  McKinnon  (Fla.)  34  So. 
272.  Jurisdiction  cannot  be  acquired  to  give 
an  administrator  relief  in  a  suit  for  an  ac- 
counting from  persons  alleged  to  hold  prop- 
erty of  the  estate,  where  he  waives  discovery 
and  asks  the  appointment  of  a  receiver  but 
does  not  allege  their  insolvency  or  irrepara- 
ble injury,  or  the  amount,  character  or  value 
of  the  property  sought — Griffin  v.  Henderson, 
116  Ga.  310.  A  bill  to  prevent  the  erection  of 
a  telephone  pole  upon  land  of  plaintiff  is 
without  equity  where  it  does  not  aver  that 
defendant  was  without  authority  to  erect 
the  pole,  that  such  erection  would  be  unlaw- 
ful, or  that  there  were  such  circumstances 
as  would  render  a  legal  remedy  inadequate — 
Cooke  V.  Central  Dist.  Tel.  Co.,  21  Pa.  Super. 
Ct.  43. 

S3.  A  bill  brought  by  members  of  a  labor 
union  to  restrain  breach  of  a  contract  of  em- 
ployment alleging  that  defendants,  its  offi- 
cers, and  agents  unlawfully  combined  to 
destroy  the  union,  etc.,  held  insuffi.cient  as 
containing  only  conclusions  of  law — Boyer 
v.  Western  Union  Tel.  Co.,  124  Fed.  246.  A 
simple  allegation  that  the  plaintiffs  are  heirs 
at  law  of  the  decedent,  and  that  as  a  com- 
promise to  a  suit  contesting  her  will  the  ex- 
ecutors agreed  to  turn  over  to  them  one-half 
the  estate,  is  insufficient  to  show  their 
rights  where  they  were  apparently  not  heirs 
at  law  in  the  state  where  the  action  arose, 
since  their  full  relation  and  the  facts  as  to 
the  compromise  should  be  set  out — Bishop 
v.  York,  118  Fed.  352.  A  bill  alleging  that 
aifter  making  plats,  a  party  sold  and  con- 
veyed certain  lots  to  purchasers  in  fee  sim- 
ple without  an  allegation  of  language  in  the 
deeds    excluding    streets,    held   to    show    that 


the  property  In  the  streets  passed  with  the 
conveyance — Brewster  v.  Cahill,  199  111.   309. 

34.  A  bill  for  cancellation  of  a  deed  ex- 
ecuted by  complainant  and  her  husband, 
charges  immaterial  matter  where  it  alleges 
coercion  by  the  husband,  and  that  complain- 
ant believed  the  grantee  had  heard  of  such 
conduct  and  had  used  influence  over  the 
husband  to  secure  the  conveyance,  such  be- 
lief not  being  a  matter  of  issue — Pratt  Land 
iS:  Imp.  Co.  V.  McClain,  135  Ala.  452. 

35.  Persons  seeking  to  enjoin  abatement 
of  stock-pens  as  a  public  nuisance  on  the 
ground  that  defendants  had  no  authority  to 
abate  them,  must  allege  that  they  were  not 
a  public  nuisance — Pittsburgh,  etc.,  R.  Co.  v. 
Crothersville,   159  Ind.   330. 

36.  Petition  as  showing  affirmatively  that 
petitioner  had  an  adequate  remedy  at  law 
which  he  neglected  to  pursue — Hess  v.  Lell 
(Neb.)  94  N.  W.  975.  A  bill  to  quiet  title 
against  one  adverse  claimant  must  allege 
that  the  title  of  complainant  has  been  suc- 
cessfully tried  at  law  at  least  once — Boston 
&  M.  Consol.  Copper,  etc.,  Min.  Co.  v.  Mon- 
tana Ore  Purchasing  Co.,  188  U.  S.  632,  645. 
A  bill  asking  for  relief  against  a  judgment 
because  complainants  have  a  valid  legal  de- 
fense which  they  were  prevented  from  mak- 
ing on  account  of  inability  to  obtain  the 
evidence  must  aver  that  proper  diligence  was 
used  in  the  preparation  for  trial — Hayes  v. 
United  States  Phonograph  Co.  (N.  J.  Ch.)  55 
Atl.  84.  In  a  suit  to  set  aside  a  judgment 
for  fraud,  plaintiff  must  allege  sufficient 
facts  to  show  that  he  was  not  guilty  of  negli- 
gence at  the  former  trial — Miller  v.  Miller's 
Estate    (Neb.)    95   N.  W.    1010. 

37.  Mortimer  v.  McMullen,  102  111.  App. 
593. 

38.  McLeod   v.    McLeod    (Ala.)    34   So.    228. 

39.  Phillips  v.  Piney  Coal  Co.  (W.  Va.)  44 
S.  B.  774.  A  bill  showing  laches  on  its  face 
or  showing  facts  bringing  the  cause  of  ac- 
tion within  the  statute  of  limitations  is  lia- 
ble to  demurrer  on  that  ground,  unless  it 
states  facts  sufficient  to  bring  the  action 
without  the  statute  or  excuse  the  laches — 
Newberger  v.  Wells,  51  W.  Va.  624.  In  a  suit 
to  set  aside  a  conveyance  for  fraud,  an  alle- 
gation that  knowledge  of  the  facts  was  ob- 
tained only  shortly  before  filing  the  bill  is 
sufficient   without   a   statement    of   facts   and 


1070 


EQUITY. 


§  6B 


it  is  defensive  matter.*"  Allegations  intended  only  to  forestall  an  anticipated 
defense  and  which  do  not  support  the  primary  claim  to  relief  will  be  stricken 
out.*^  A  bill  or  complaint  asking  injunctive  relief  in  equity  must  show  danger 
of  substantial  and  serious  damage,*^  and  that  such  injury  will  be  irreparable/^ 
the  complaint  alleging  the  specific  facts  showing  such  injury;**  as,  for  instance, 
the  fact  that  defendant  is  insolvent  and  cannot  respond  in  damages.**  Eelief 
cannot  be  granted  on  equities  set  up  in  affidavits  supporting  a  complaint  where 
the  complaint  itself  fails  to  state  a  cause  of  action.*®  The  sufficiency  of  bills  or 
petitions  in  particular  suits  will  be  found  in  the  footnotes.*^ 

Multifariousness. — A   bill   in   equity   cannot   join   independent,   inconsistent, 
and  repugnant  causes  of  action  sufficient  in  themselves  separately.**     Matters  of 


circumstances  to  excuse  laches — Coolidge  v. 
Rhodes,    199    lU.    24. 

40.  Pratt  Land  &  Imp.  Co.  v.  McClain,  135 
Ala.  452. 

41.  Stevenson  v.  Morgan,  64  N.  J.  Eq.  219. 

42.  Hart  V.  Hildebrandt,  30  Ind.  App.   415. 

43.  Chappell  v.  Jasper  County  Oil  Co.  (Ind. 
App.)    66  N.   E.   515. 

44.  Wabash  R.  Co.  v.  Engleman   (Ind.)   66 
E.    892;     Porter   v.   Armstrong,    132    N.    C. 


N. 
66. 

45. 

46. 

47. 
759. 


Porter  v.  Armstrong,  132  N.  C.  66. 

Landes  v.   Walls    (Ind.)    66    N.    E.    679. 

Moore  V.  Hammond  (C.  C.  A.)  121  Fed. 
Bill  in  suit  to  construe  a  deed  as  de- 
murrable for  uncertainty  and  inconsistency 
in  allegations — Hill  v.  Spencer,  196  111.  65. 
Bill  to  set  aside  fraudulent  conveyance  as  to 
implied  allegation  of  notice — Flook  v.  Arm- 
entroufs  Adm'r  (Va.)  42  S.  E.  686.  Bill 
stating  a  cause  of  action  for  an  accounting 
and  injunction  in  regard  to  infringement  of 
a  patent— Murjahn  v.  Hall,  119  Fed.  186.  BiU 
for  reformation  of  written  instrument  in 
connection  with  exhibits  attached  as  a  state- 
ment of  the  terms  of  the  alleged  instrument 
or  of  grounds  for  relief  authorizing  reforma- 
tion— Willard  v.  Davis.  122  Fed.  363.  Peti- 
tion in  suit  to  annul  judgment  and  set  aside 
execution  sale  for  want  of  jurisdiction  be- 
cause of  failure  to  serve  with  process  and  no 
appearance — Mullins  v.  Rieger,  169  Mo.  521. 
Complaint  for  an  accounting  in  regard  to  a 
mining  claim  by  one  alleging  that  he  is 
the  owner  of  a  certain  interest  and  asking 
for  general  relief — Yarwood  v.  Johnson,  29 
Wash.  643,  70  Pac.  123.  A  bill  to  compel 
defendant  to  restore  a  building  erected  on 
plaintiff's  land  and  removed  by  defendant 
must  show  in  what  manner  the  building  was 
placed  on  the  land — Bowie  v.  Smith  (Md.) 
55  Atl.  625.  A  petition  for  relief  in  equity 
against  a  judgment  must  state  its  nature  or 
show  that  it  might  operate  to  prejudice 
plaintiff — Van  Every  v.  Sanders  (Neb.)  95  N. 
W.  870.  A  bill  charging  an  attorney  with 
failure  to  pay  over  money  collected  and 
asking  an  accounting  must  allege  a  cause 
for  an  accounting — Pfau  v.  Fullenwider,  102 
111.  App.  499.  Though  complainant  is  not 
obliged  to  show  the  full  extent  of  his  rights 
as  against  the  other  party,  he  must  show 
that  he  has  rights  as  against  him — Gould 
V.  Barrow.  117  Ga.  458.  A  petition  by  an 
executor  to  compel  persons  to  account  for 
property  of  an  estate  held  by  them  must  al- 
lege that  the  property  was  acquired  in  the 
same  manner  or  held  In  common — Griffin  v. 
Henderson.  116  Ga.  310.  A  bill  to  prevent  the 
opening  of  a  highway  alleging  a  valid  judg- 


ment of  the  county  court  decreeing  the  open- 
ing and  averring  that  the  surveyor's  report 
in  fact  departed  from  the  petition  for  the 
highway  must  allege  fraud  or  misrepresen- 
tation— Searcy  v.  Clay  County  (Mo.)  75  S. 
W.  657.  An  allegation  in  a  bill  by  a  corpora- 
tion, that  defendants  are  citizens  and  resi- 
dents of  the  state  where  the  suit  is  brought, 
and  non-residents  of  another  state  where 
the  corporation  resides,  is  sufficient  as  to 
the  places  of  abode  of  the  parties.  Under 
Equity  Rule  20 — Tonopah  Fraction  Min.  Co. 
V.  Douglass,  123  Fed.  936.  Where  a  com- 
plaint is  removed  from  the  state  court  and 
demurred  to  for  want  of  facts,  it  cannot  be 
dismissed  because  as  a  bill  in  equity,  it  does 
not  give  the  address,  statement  of  citizen- 
ship, or  proper  prayer,  or  because  errone- 
ously placed  on  the  law  docket,  these  being 
objections  as  to  form  only.  (Rev.  St.  § 
954) — Dancel  v.  United  Shoe  Mach.  Co.,  120 
Fed.  839.  Where  one  buys  land  with  actual 
notice  of  ownership  in  another  than  his 
grantor,  and  builds  thereon  at  his  peril, 
a  bill  to  reform  his  deed  because  of  omis- 
sion by  mistake  or  fraud,  asking  cancella- 
tion of  a  deed  purporting  to  convey  his 
land  need  not  allege  an  offer  to  pay  the  value 
of  the  improvements  put  on  the  land — Black- 
burn V.  Perkins  (Ala.)  35  So.  250.  That  it 
appears  in  a  suit  for  reformation  of  a  deed 
because  of  mistake  and  fraud,  that  the  trans- 
action was  had  between  the  grantor  of  com- 
plainant and  defendant  in  the  name  of  de- 
fendant's wife,  though  the  bill  alleged  that 
the  land  was  sold  to  defendant,  will  not  de- 
prive complainant  of  relief  to  which  he  may 
be  entitled — Id.  A  complaint  alleging  that 
defendant,  an  agent  to  purchase  land,  took 
title  in  his  own  name  and  claimed  owner- 
ship and  asking  a  decree  making  defendant 
a  trustee  as  to  the  lands  for  complainant 
cannot  be  sustained  as  a  bill  for  specific  per- 
formance of  the  contract  of  sale,  since  it 
was  one  to  establish  a  trust — Oden  v.  Lock- 
wood,  136  Ala.  514.  A  petition  purporting  to 
be  filed  in  a  pending  suit  but  showing  that 
such  suit  has  terminated  is  bad — German  v. 
Browne  (Ala.)  34  So.  985.  General  allega- 
tions of  no  sufficient  remedy  at  law,  of 
multiplicity  of  suits,  cloud  on  title,  and  irrep- 
arable injury,  held  sufficient  to  show  juris- 
diction of  a  bill  by  the  Cherokee  Nation  to 
enjoin  the  allowance  of  leases  by  the  secre- 
tary of  the  interior  on  tribal  lands  for  min- 
ing purposes — Cherokee  Nation  v.  Hitchcock, 
187  U.  S.  294. 

48.  Bills  held  multifarious — Sawyer  v. 
Atchison,  etc.,  R.  Co.,  119  Fed.  252;  Day  v. 
National   Mut.    Bldg.    &   Loan   Ass'n    of   N.    Y. 


§  6B 


MULTIFARIOUSNESS. 


1071 


pure  legal  cognizance  alleged  in  a  bill  for  equitable  relief  will  not  render  it  mul- 
tifarious.*® Legal  and  equitable  causes  cannot  be  joined  especially  where  the 
distinction  in  forms  is  preserved  as  in  Federal  courts,^**  nor  under  codes,  except 
as  authorized.^^  Particular  causes,  as  legal  or  equitable,  will  be  found  in  the  foot- 
notes.^- 


(W.  Va.)  44  S.  E.  779.  BIU  to  set  aside  a 
judgment  of  the  county  court  opening  a  high- 
way and  for  damages  against  road  overseers 
—Searcy  v.  Clay  County  (Mo.)  75  S.  W.  657. 
Bill  for  cancellation  of  many  independent 
and  separate  contracts  by  one  defendant 
with  several  complainants — Crawford-Adsit 
Co.  V.  Fordyce,  100  111.  App.  362.  Bill  asking 
for  partition  as  to  certain  defendants  and  re- 
moval of  cloud  from  title  as  to  another  who 
is  not  at  all  connected  with  them — Roller  v. 
Clarke,  19  App.  D.  C.  539.  Petition  by  ex- 
ecutor seeking  accounting  against  two  de- 
fendants alleged  to  hold  property  of  the  es- 
tate but  failing  to  allege  that  they  held  any 
of  It  in  common  or  that  they  have  acquired 
It  in  the  same  way — Griffin  v.  Henderson,  116 
Ga.  310.  Bill  joining  a  cause  of  action 
against  a  corporation  to  foreclose  a  mort- 
gage, and  another  against  stockholders  to 
recover  fraudulent  dividends  paid  out  of  the 
Income  of  the  mortgaged  property — New 
Hampshire  Sav.  Bank.  v.  Richey  (C.  C.  A.) 
121  Fed.  956.  Bill  by  a  borrower  of  a  build- 
ing association  to  have  his  stock  and  obliga- 
tions cancelled  and  yet  seeking  as  share- 
holder to  call  the  officers  to  account  and  to 
have  the  business  wound  up — Day  v.  Nation- 
al Mut.  Bldg.  &  Loan  Ass'n  of  N.  T.  (W.  Va.) 
44  S.  E.  779.  Bill  against  judgment  debtors 
and  another  praying  not  only  a  discovery  and 
other  equitable  relief,  but  a  personal  judg- 
ment against  one,  is  multifarious  as  to  him 
— Hudson  V.  Wood,  119  Fed.  764.  Bill  against 
several  for  an  account  from  two;  for  fore- 
closure of  deed  of  trust  given  by  all  and  for 
a  deficiency  judgment,  where  one  has  no 
interest  in  the  land,  another  has  an  inalien- 
able equity  for  life,  and  the  others  vested 
remainders  therein — Fields  v.  Gwynn,  19 
App.  D.  C.  99. 

Bills  held  not  multifarious.  Bill  seeking 
to  restrain  use  of  a  patented  article  and  also 
the  use  of  the  generic  name  of  that  article — 
Adam  v.  Folger  (C.  C.  A.)  120  Fed.  260.  Bill 
to  condemn  land  for  a  street  not  multifarious 
because  it  makes  all  persons  interested  in 
any  of  the  lands  parties — Gardiner  v.  City 
of  Baltimore,  96  Md.  361.  Bill  by  heirs  of  a 
husband  and  wife  to  recover  land  not  mul- 
tifarious because  title  to  some  land  was  vest- 
ed in  the  husband  to  other  lands  in  the 
wife,  and  to  still  other  lands  in  both,  nor 
because  defendants  claimed  through  various 
sources  of  title — Kilgore  v.  Norman,  119 
Fed.  1006.  Bill  by  one  of  two  grantees 
against  the  other  alleging  an  overlapping  of 
the  grant  from  a  common  grantor  and  ask- 
ing apportionment  not  multifarious  because' 
it  also  seeks  apportionment  against  anoth- 
er person  claiming  under  the  defendant  gran- 
tee— Adams  v.  Wilson  (Ala.)  34  So.  831.  Bill 
by  a  judgment  creditor  of  a  corporation 
against  stock  subscribers  to  subject  their 
subscription  notes  to  the  judgment,  not  mul- 
tifarious for  misjoinder  of  respondents, 
though  che  interests  as  between  respondents 
themselves  are  distinct  and  independent — 
Henderson  v.  Hall,  134  Ala.  455;  Hall  v.  Hen- 
dersoia,  Id.  Bill  to  enjoin  the  passing  over 
of   oyster  beds    if  such   relief  be   not   practi- 


cable— Simonson  v.  Cain  (Ala.)  34  So.  1019. 
Bill  to  restrain  diversion  of  waters  not  mul- 
tifarious because  such  waters  are  claimed 
in  different  rights,  where  all  are  affected 
alike  by  the  acts  of  defendants — Rincon 
Water  &  Power  Co.  v.  Anaheim  Union  Water 
Co.,  115  Fed.  543.  Bill  alleging  a  fraudu- 
lent conveyance  pursuant  to  a  conspiracy 
and  that  certain  decrees  were  fraudulently 
obtained  pursuant  to  the  same  conspiracy 
and  asking  that  such  decrees  be  set  aside — 
Northwestern  Land  Ass'n  v.  Grady  (Ala.)  33 
So.  874.  Bill  for  an  injunction  to  restrain 
the  lowering  of  the  level  of  a  lake  where 
defendants,  though  acting  independently 
have  contributed  to  the  impairment  of  such 
level — Draper  v.  Brown,  115  Wis.  361.  Bill 
by  the  federal  government  against  several 
defendants  to  prevent  pasturing  two  bands 
of  sheep  on  a  reservation  where  there  are 
no  averments  showing  different  rights  or 
interests  as  between  the  defendants — Daster- 
vignes  v.  United  States  (C.  C.  A.)  122  Fed.  30. 
Creditor's  bill  based  on  two  several  judg- 
ments both  in  favor  of  the  plaintiff  and 
against  the  same  defendant  attacking  as 
fraudulent  a  conveyance  of  property  in  trust 
from  the  judgment  defendants  to  certain  of 
his  co-defendants,  reserving  annuity  to  the 
grantor  and  also  an  assignment  of  the  an- 
nuity to  the  other  co-defendants,  not  mul- 
tifarious the  relief  asked  being  in  the  al- 
ternative— De  Hierapolis  v.  Lawrence,  Hi 
Fed.  761.  Bill  seeking  relief  against  several 
tax  bills  issued  under  separate  ordinances  as 
a  cloud  on  title — Perkins  v.  Baer,  95  Mo.  App. 
70.  Bill  to  set  aside  a  will  and  a  deed  by 
the  same  person  and  alleged  to  have  been 
procured  by  undue  influence  of  one  defend- 
ant— Williams  v.  Crabb  (C.  C.  A.)  117  Fed. 
193.  Bill  by  a  judgment  creditor  of  a  cor- 
poration against  the  corporation  and  cer- 
tain stockholders  to  recover  unpaid  stock 
subscriptions  and  compel  payment  for  bonds 
issued  to  the  stockholders  not  paid  for,  sub- 
sequently amended  by  an  allegation  that  de- 
fendants fraudulently  received  the  assets  of 
the  corporation  for  which  they  did  not  pay 
and  that  actual  fraud  existed  by  which  the 
bill  was  changed  to  an  ordinary  creditor's 
bill  and  discovery  and  accounting  was  asked 
— Montgomery  Iron  Works  v.  Capital  City 
Ins.  Co.  (Ala.)  34  So.  210.  Bill  asking  fore- 
closure and  relief  against  an  original  mort- 
gagee and  various  transferees  parties  who 
become  sureties — Miller  v.  McLaughlin 
(Mich.)    93   N.   W.   435. 

49.  Letohatchie  Baptist  Church  v.  Bullock, 
133   Ala.   548. 

50.  Equitable  defenses  will  not  be  heard 
in  ejectment — Highland  Boy  Gold  Min.  Co. 
V.  Strickley  (C.  C.  A.)  116  Fed.  852.  An  ac- 
tion by  the  United  States  against  heirs  of  a 
deceased  public  officer  to  recover  moneys 
alleged  to  have  been  overpaid  him  on  his 
salary,  as  received  by  them  in  the  distribu- 
tion of  his  estate,  cannot  be  joined  with 
one  against  the  sureties  on  his  bond  to 
charge  them  with  liability  for  the  same  mon- 
eys— United  States  v.   Boyd,  118  Fed.   89. 

51.  A    cause    of   action    for    alleged    abupe 


1072 


EQUITY. 


8  6C 


(§6)  C.  Amended  and  supplemental  hills,  complaints,  or  petitions. — The  fed- 
eral statute  requiring  the  court  to  amend  all  defects  or  want  of  form  other  than  those 
expressed  in  a  demurrer  applies  to  suits  in  equity.^^     Plaintiff  may  amend  his 


of  process  and  malicious  prosecution  of  a 
civil  suit,  based  on  an  attempt  to  foreclose 
a  mortgage  in  the  federal  courts  cannot  be 
set  up  as  a  counterclaim  in  a  later  suit  in 
the  state  court  to  foreclose  the  mortgage — 
President,  etc.,  of  Ins.  Co.  of  North  America 
V.  Parker   (Neb.)    89  N.  "W.   1040. 

52.  A  petition  of  intervention  in  a  suit 
against  a  receiver  on  a  claim  for  damages  for 
death  is  an  equitable  proceeding  and  plead- 
ings must  follow  the  rules  and  practice  in 
equity — Mercantile  Trust  Co.  v.  Pittsburgh 
&  W.  R.  Co.  (C.  C.  A.)  115  Fed.  475.  A  suit 
on  a  contract,  In  which  a  conspiracy  is  al- 
leged by  defendant  with  others  to  render  per- 
formance by  him  impossible  and  to  render 
him  insolvent  in  order  to  defeat  the  rights 
of  complainant,  is  equitable — Berliner  Gram- 
aphone  Co.  v.  Seaman  (C.  C.  A.)  113  Fed.  750. 
A  suit  to  recover  for  breach  of  contract  is 
not  equitable  and  cannot  be  brought  in  a 
federal  court  of  equity  merely  because  the 
contract  gave  complainant  the  right  to  in- 
spect defendant's  books — India  Rubber  Co. 
V.  Consolidated  Rubber  Tire  Co.,  117  Fed. 
354.  Where  complainants  sued  for  value  of 
gas  delivered  under  a  contract,  and  prayed 
that  because  of  a  mutual  mistake  the  con- 
tract be  reformed,  the  suit  was  brought  in 
equity  though  the  relief  to  which  plaintiff 
was  finally  shown  to  be  entitled,  amounted 
to  a  mere  money  judgment;  under  Burns' 
Rev.  St.  1901,  §  2S1,  authorizing  the  joinder 
of  all  matters  of  action  necessary  to  a  com- 
plete remedy — Palmer  Steel  &  Iron  Co.  v. 
Heat,  Light  &  Power  Co.  (Ind.)  66  N.  E.  690. 
An  action  to  recover  for  legal  services  from 
the  estate  of  a  decedent  is  at  law — Kings- 
bury V.  Joseph,  94  Mo.  App.  298.  Where  a 
crossbill  asks  cancellation  of  a  lease  and 
affirmative  relief  destructive  of  plaintiff's 
right  to  recover  thereon,  the  suit  is  one  in 
equity — Lincoln  Trust  Co.  v.  Nathaw  (Mo.) 
74  S.  W.  1007.  A  suit  in  the  nature  of  a 
bill  in  equity  either  to  have  a  deed  to  a 
bank  declared  a  mortgage  so  as  to  allow  the 
mortgagor  to  redeem,  or  to  enforce  a  ven- 
dor's lien,  is  a  pure  chancery  proceeding; 
construing  Rev.  St.  1899,  §  691,  providing  for 
jury  trials  in  actions  to  recover  money  or 
specific  personalty — Yancey  v.  People's  Bank 
(Mo.  App.)  74  S.  W.  117.  Matters  arising  un- 
der a  plea  of  set-off  cannot  be  heard  in  a 
court  of  law  if  based  on  equitable  grounds 
requiring  rescission  of  the  contract — Han- 
cock V.  Whitehall  Tobacco  Warehouse  Co. 
(Va.)  41  S.  E.  860;  Same  v.  Hubard,  Id.  Suf- 
ficiency of  misrepresentations  alleged  in  an- 
swer in  a  suit  on  a  life  insurance  policy, 
praying  cancellation  thereof,  to  change  the 
suit  under  statutory  provisions  into  one  in 
equity;  construing  Rev.  St.  1SS9,  §§  5849,  5850 
— Kern  v.  Supreme  Council  American  Legion 
of  Honor,  167  Mo.  471.  A  suit  to  have  a 
deed  declared  a  mortgage  so  as  to  allow  en- 
forcement of  a  vendor's  lien  or  redemption 
by  the  mortgagor  is  a  purely  chancery  pro- 
ceeding; construing  Rev.  St.  1899,  §  691, 
providing  for  jury  trials  in  actions  to  re- 
cover money  or  specific  personalty — Yan- 
cey v.  People's  Bank  (Mo.  App.)  74  S.  W. 
117.     A    suit     to     ascertain     the    amount     of 


money  loaned  by  plaintiff  to  defendant  and 
to  declare  a  lien  on  property  pledged  as 
security  and  to  foreclose  it  is  in  equity  and 
is  not  as  for  a  money  demand — Conde  v. 
Rogers,  74  App.  Div.  (N.  Y.)  147.  Conversion 
involving  issues  as  to  whether  a  bill  of  sale 
was  merely  a  security  and  whether  it  w^as 
procured  by  fraud  does  not  present  issues 
solely  of  equitable  cognizance — Frick  v.  Ka- 
baker,  116  Iowa,  494.  Where  plaintiff  in 
ejectment  claimed  by  purchase  from  the  pur- 
chaser at  a  trustee's  sale,  and  the  answer 
denied  the  same  and  that  the  grantor  in  the 
trust  deed  was  indebted  to  the  grantee,  and 
pleaded  usury,  no  grounds  appeared  for 
transfer  of  the  cause  to  equity — North  Amer- 
ican Trust  Co.  V.  Chappell,  70  Ark.  507. 
Where  the  answer  alleges  that  a  mistake  was 
made  in  reducing  the  agreement  sued  on 
to  writing  the  cause  should  be  transferred 
to  the  equity  docket  at  defendant's  request 
for  reformation  of  the  contract — Grasmier  v. 
Wolf  (Iowa)  90  N.  W.  813.  A  suit  to  set 
aside  a  transfer  of  stock  for  fraudulent  rep- 
i-esentations  of  the  transferee,  to  restrain 
disposal  of  those  holding  in  trust  for  him, 
to  compel  delivery  of  stock  certificates  and 
to  require  a  reissue  to  plaintiff  by  the  cor- 
poration, is  exclusively  in  equity — Morrison 
V.  Snow  (Utah)  72  Pac.  924.  A  suit  by  per- 
sons claiming  to  be  the  owners  of  mihing- 
lands  for  restitution  of  the  lands  and  to  re- 
strain the  taking  of  ore  therefrom,  in  which 
the  defendants  claimed  an  abandonment  of 
the  pioperty  and  a  re-location  by  themselves, 
is  an  action  at  la\v,  not  a  suit  in  equity 
and  plaintiffs  are  entitled  to  a  jury — Haggin 
V.  Kelly,  136  Cal.  481,  69  Pac.  140.  Wheth- 
er the  right  and  remedy  of  a  corporation  to- 
resist  a  judgment  against  it,  rendered  be- 
cause of  collusive  fraud  of  its  officers,  be 
legal  or  equitable,  the  right  of  a  taxpayer 
to  resist  such  judgment  on  behalf  of  him- 
self and  other  taxpayers,  is  legal,  and  his 
remedy  equitable — Balch  v.  Beach  (Wis.)  95 
N.  W.  132.  Suit  for  repeated  trespass  defend- 
ed by  a  claim  of  a  highway  is  legal,  though 
complainant  alleges  insolvency  of  defend- 
ants and  asks  an  injunction — State  ex  rel. 
Hansen  v.  Hart  (Utah)  72  Pac.  938.  Eject- 
ment against  grantees  of  a  mortgagor  can- 
not be  transferred  to  equity  and  tried  with 
a  bill  to  redeem  from  foreclosure  though  the 
defense  in  ejectment  is  the  right  to  re- 
deem— Robinson  v.  United  Trust  (Ark.)  72 
S.  W.  992.  T\'here  it  was  agreed  on  an  in- 
tervening petition  in  receivership  proceed- 
ings that  under  the  general  denial  the  re- 
ceiver might  give  evidence  of  set-off  merely 
in  defense,  the  action  of  the  court  In  later 
directing  the  receiver  of  its  own  motion  to- 
file  a  further  answer  of  set-off  asking  judg- 
ment over  did  not  constitute  the  case  a  new 
action,  and  the  intervenor  was  not  entitled 
to  a  jury  to  try  the  set-off;  when  equi- 
ty jurisdiction  is  developed  it  continues 
throug'nout  the  controversy  though  the  rem- 
edy might  be  conferred  at  law — Whitcomb 
V.  Stringer   (Ind.  App.)    63  N.  E.  582. 

53.     Rev.   St.  §  954 — Dancel  v.  United  Shoa 
Mach.  Co.,  120  Fed.  839. 


?  60 


AMENDMENTS. 


1073 


bill  or  petition  if  the  amendment  does  not  make  a  new  cause  of  action  or  create 
a  departure  in  pleading.^*  If  the  bill  states  no  cause  of  action,  no  amendment  can 
be  filed,^"  nor  can  essential  averments  as  to  jurisdiction  be  supplied.^®  PlaintifE 
may  be  allowed  to  amend  his  bill  after  proof  to  conform  to  such  proof,^^  the  re- 
sult being  to  set  aside  former  defaults  or  failure  to  answer.''^  A  bill  which  do'es 
not  show,  and  was  not  intended  to  show,  any  defect  as  to  parties  in  the  original 
bill,  or  mistake  or  omission  in  its  allegation  of  a  fact,  is  not  an  amended  bill.^*^ 
An  affidavit  is  not  an  amended  or  supplemental  bill,  where  filed  in  course  of  a 
hearing  without  leave  to  file  an  amended  pleading,  nor  can  its  statements  render 
one  a  necessary  party  not  made  so  by  the  bill.®"  Amendments  will  not  be  com- 
pelled.®^ Defendants  may  cure  allowance  of  improper  amendments  by  electing 
to  treat  an  amended  as  an  original  bill.®^  Application  for  leave  to  amend  after 
replication  filed  must  be  made  by  motion  supported  by  affidavit.®^  An  amend- 
ment will  be  refused  if  not  presented  until  the  case  is  ready  for  hearing.®^  After 
demurrer  sustained  for  misjoinder  of  complainants,  the  bill  may  be  amended  by 


64.  What  constitutes  a  departure  in  an 
amendment  from  a  bill  for  setting'  aside  at- 
tachments as  fraudulent — McDonnell  v. 
Finch,  131  Ala.  85.  Amended  bill  as  depart- 
ure from  orig-inal  bill  by  judgment  creditors 
to  subject  property  of  partners  to  claims 
on  ground  of  conveyance  in  fraud  of  cred- 
itors—Metcalf  V.  Arnold,  132  Ala.  74.  An 
amendment  of  a  bill  or  petition  in  equity 
seeking-  in  effect  the  same  relief  for  which 
the  suit  was  brought  is  allowable.  Amend- 
ment in  a  suit  to  prevent  foreclosure  of  a 
chattel  mortgage  and  for  redemption  and 
sale  of  the  property  under  Rev.  Laws,  c. 
173,  §  48 — King  v.  Howes,  181  Mass.  445.  If 
an  amendment  states  reasons  for  relief  more 
fully  and  different  in  some  particulars  from 
those  in  the  original  bill,  It  will  be  allowa- 
ble in  the  discretion  of  the  court  as  not  set- 
ting forth  a  different  cause  of  action,  where 
its  purpose  is  the  same.  The  amendment 
sought  to  establish  a  resulting  trust  from 
the  same  transaction  and  under  the  same 
general  rule  of  law — Brainard  v.  Buck,  184 
U.  S.  99.  Amendments  held  not  departure  or 
cbange  of  form.  Fixing  the  time  when  com- 
plainants became  creditors  of  defendant; 
original  bill  alleging  facts  showing  that 
they  were  such  creditors — Hauk  v.  Van  Ing- 
en,  196  111.  20.  Inclusion  in  partition  of 
tracts  of  land  omitted  from  the  original  com- 
plaint—Adams V.  Hopkins  (Cal.)  69  Pac.  228. 
As  to  amount  claimed  as  attorney's  fees, 
under  Code,  §  706,  allowing  amendment  be- 
fore final  decree — American  Freehold  Land 
Mortg.  Co.  V.  Pollard,  132  Ala.  155.  Show- 
ing that  complainant  is  a  corporation,  the 
original  petition  being  in  the  name  of  a 
society — Adas  Yeshurun  Soc.  v.  Fish,  117  Ga. 
345.  Praying  for  partition  In  kind  and  not 
a  sale  as  asked  In  the  original  bill — Berry 
V.  Tennessee  &  C.  R.  Co.,  134  Ala.  618.  In 
suit  against  indorser,  supplying  necessary 
•averments  and  adding  as  new  parties  the 
personal  representatives  of  the  makers — 
Tidball's  Bx'rs  v.  Shenandoah  Nat.  Bank 
(Va.)  42  S.  E.  867.  Changing  from  bill  to 
quiet  title  to  action  under  the  statute  to 
determine  claims  and  quiet  title — Smith  v. 
Gordon,  136  Ala.  495.  Substituting  a  prayer 
for  accounting  and  for  a  money  judgment 
with  a  special  lien  on  the  land  for  one  to 
recover    land    in    which    trust    funds    were 

Curr   Law— -G8. 


wrongfully  Invested — Jordan  v.  Downs  (Ga.) 
45  S.  E.  439.  Adding  a  prayer  for  a  per- 
sonal judgment  in  a  suit  to  subject  lands  to 
a  judgment — Schneider  v.  Patton  (Mo.)  75 
S.  W.  155.  Auieudments  held  to  Introduce 
new  can.se  of  action.  Alleging  that  in  the 
trespass  and  threatened  trespass  sued  for, 
defendant  acted  as  agent  for  another  and 
asking  that  he  be  made  a  party  defendant 
and  restrained — Roberts  v.  Atlanta  Real  Es- 
tate Co.  (Ga.)  45  S.  E.  308.  Setting  up  ir- 
regularities in  foreclosure  sale,  where  the 
original  bill  seeks  redemption — Robinson  v. 
United  Trust   (Ark.)    72  S.  W.  992. 

55.  Mellor  v.  Smither  (C.  C.  A.)  114  Fed. 
116. 

56.  It  must  appear  at  every  stage  of  the 
cause  that  the  court  has  jurisdiction — Dick- 
incjon  v.  Consolidated  Traction  Co.,  114  Fed. 
231 

57.  South  Chicago  Brew.  Co.  v.  Taylor 
(111.)  68  N.  E.  732;  Henderson  v.  Hall,  134 
Ala.  455.  Where  a  mother  sued  to  recover 
balance  remaining  unpaid  on  a  conveyance 
of  land  to  her  son  for  a  given  consideration 
and  he  answered  that  the  real  consideration 
was  services  rendered  and  to  be  rendered  in 
tlie  care  of  his  mother  and  the  proof  showed 
that  he  had  wholly  failed  in  this,  the  mother 
may  file  an  amended  petition  asking  can- 
cellation of  the  conveyance — Stephenson  v. 
Stephenson,   24  Ky.  L.  R.   1873,  72  S.  W.  742. 

58.  South  Chicago  Brew.  Co.  v.  Taylor 
(111.)    68  N.   E.  732. 

59.  Smith  v.  Pyrites  Mln.  &  Chemical  Co. 
(Va.)    43   S.   E.    564. 

60.  Sidway  v.  Missouri  Land  &  Live  Stock 
Co.,  116  Fed.  381. 

61.  In  a  suit  by  one  state  against  anoth- 
er state,  an  amendment  to  the  bill  raising  the 
issue  as  to  water  rights  in  a  river  flowing 
into  and  through  both  states  will  not  be 
compelled  on  demurrer,  however  Imperfect 
the  bill  may  be,  but  its  sufficiency  for  the 
relief  prayed  for  will  await  the  trial  on  the 
merits — Kansas  v.   Colorado,   185  U.  S.   125. 

62.  Love  v.  Moser,   109   Tenn.  143. 

63.  Equity  rule  29 — Beavers  v.  Richard- 
son, 118  Fed.  320. 

64.  Bill  for  redemption  from  foreclosure — 
Robinson  v.  United  Trust  (Ark.)  72  S.  W. 
992. 


1074 


EQUITY. 


§^D 


dismissal  as  to  the  complainant  without  interest.^'  Wliere  complainant  has  not 
made  out  his  case  by  pleading  and  proof,  the  bill  may  be  dismissed  in  vacation 
mthout  allowing  an  opportunity  to  amend.®^  An  order  sustaining  a  demurrer 
to  one  aspect  only  of  a  bill  is  merely  interlocutory  and  the  order  may  be  revised 
before  final  decree  and  the  bill  amended  at  any  time  as  to  that  portion  with  per- 
mission of  the  court.®^  Where  amendments  to  a  bill  filed  after  sworn  answer 
set  up  no  new  cause  of  action  or  additional  facts  requiring  answer,  the  denial  of 
the  sworn  answer  applies  to  the  bill  as  amended,  without  further  oath  or  verifica- 
tion.^^ The  filing  of  an  amended  bill,®^  or  of  an  amended  and  supplemental  bill, 
is  in  the  discretion  of  the  court  and  will  not  be  reviewed  imless  that  discretion 
is  abused.''"  If  the  bill  makes  no  cause  of  action,  one  cannot  be  introduced  by 
supplemental  bill  which  has  accrued  thereafter,  but  if  the  original  bill  states  a 
cause  of  action,  a  suppleiuental  bill  may  be  employed  to  bring  in  material  facts 
occurring  after  its  filing,'''^  and  if  leave  has  been  given  to  file  a  supplemental  bill 
±0  bring  in  matters  arising  after  filing  the  original  bill,  matters  which  might  also 
have  been  included  in  the  original  bill  may  then  be  included  in  the  amendment.''^ 
A  supplemental  bill  is  not  necessary  to  bring  in  material  facts  occurring  after 
the  filing  of  the  original  bill  only  to  establish  the  facts  in  issue.'''  A  statement 
by  the  chancellor  on  hearing  a  master's  report  does  not  amount  to  a  decision  on 
the  issues,  where  there  is  no  entry  of  an  order  or  decree  referring  to  the  report, 
and  a  supplemental  bill  may  be  thereafter  filed.''* 

(§6)  D.  Cross  hill  or  petition. — Additional  facts  relating  to  the  subject-mat- 
ter of  the  bill  may  be  set  up  by  cross  bill  and  affirmative  relief  asked,''^  and  the  rule 
applies  to  cross  petitions.'^®  Relief  will  not  be  granted  on  a  cross  bill  asking  an 
account  which  could  not  be  stated  with  equal  justice  to  the  parties.'^     ^^Iiere  the 


65.  Victor  Talking-  Mach.  Co.  v.  American 
Graph.   Co.,   118   Fed.    50. 

66.  V\^cstbrook  v.  Hayes   (Ala.)    34  So.  622. 

67.  Globe-Wernicke  Co.  v.  Macey  (C.  C. 
A.)    119   Fed.    696. 

68.  Simonson   V.    Cain    (Ala.)    34    So.    1019. 

69.  Where  specific  matters  omitted  in  an 
original  complaint  in  partition  are  included 
by  an  amendment,  its  allowance  is  in  the 
discretion  of  the  court  whether  the  original 
complaint  stated  a  cause  of  action  or  not — 
Adams  v.  Hopkins  (Cal.)   69  Pac.  228. 

70.  Berliner  Gramophone  Co.  v.  Seaman 
(C.  C.  A.)   113  Fed.  750,  115  Fed.  806. 

71.  Mellor  V.  Smither  (C.  C.  A.)  114  Fed. 
116.  A  bill  which  states  new  facts  amount- 
ing to  an  entirely  new  cause  of  action  be- 
tween different  parties  and  on  which  a  de- 
cree could  be  rendered  without  referring  to 
the  original  bill,  is  not  a  supplemental  bill — 
Smith  V.  Pyrites  Min.  &  Chemical  Co.  (Va.) 
43  S.  E.  564.  A  supplemental  bill  in  a  part- 
nership accounting  is  not  objectionable  as 
making  a  different  case  from  the  original 
bill,  where  it  merely  states  that  after  the 
filing  of  the  original  bill  the  parties  agreed 
that  the  accounts  should  be  stated  accord- 
ing to  certain  schedules  and  on  the  ac- 
counting the  balance  was  found  due  plain- 
tiff— McMurtrie  v.  Guiler  (Mass.)  67  N.  E. 
358. 

72.  Mellor  V.  Smither  (C.  C.  A.)  114  Fed. 
116. 

73.  Pennsylvania  Co.  v.  Bond,  99  111.  App. 
635. 

74.  French  v.  Commercial  Nat.  Bank,  199 
111.    213. 

7R,     Price    V.    Stratton    (Fla.)    33    So.    644. 


While  the  Code  Is  silent  in  Nebraska  as  to 
remedies  furnished  by  the  old  common  law 
or  equity  practice,  they  may  be  employed  in 
bringing  a  cross  suit  not  inconsistent  with 
the  provisions  of  the  Code — Armstrong  v. 
Mayer  (Neb.)  95  N.  W.  51.  A  cross-bill  to 
restrain  complainant  from  enjoying  the 
rights  asserted  and  asked  to  be  established 
by  his  bill  cannot  be  maintained  since  those 
rights  must  be  adjudicated  in  settling  the 
issues  of  the  bill  and  answer — Sunset  Tel. 
Co.  V.  Eureka.  122  Fed.  960.  In  a  suit  against 
a  railroad  company  by  a  publishing  com- 
pany because  of  the  refusal  to  carry  papers 
on  a  certain  train  another  publishing  com- 
pany having  a  contract  for  exclusive  right 
of  shipment  thereby  cannot  file  a  cross  bill 
to  obtain  equities  against  the  complainant 
on  account  of  expenses  relating  to  the  train 
service — Memphis  News  Pub.  Co.  v.  South- 
ern R.  Co.   (Tenn.)   75  S.  W.  941. 

76.  A  cross  petition  for  abuse  of  prof-es3 
by  vexatious  delay  in  an  action  at  law  in- 
volving the  same  issues  during  the  pendency 
of  which  the  suit  was  stayed,  held  distinct 
from  the  original  suit  and  not  allowable — 
Armstrong  v.  Mayer  (Neb.)  95  N.  W.  51.  In 
a  suit  by  a  trustee  under  an  assignment  of  a 
mortgage  to  foreclose  it,  judgment  cr'-ditors 
of  the  owner  of  the  equity  in  the  lands,  who 
allege  that  the  assignment  is  fraudulent 
against  them  as  creditors  of  such  owner,  can- 
not amend  cross  bill  to  allege  th.'^t  the  as- 
signment was  also  fraudulent  against  them 
as  creditors  of  the  trustee — Cartpr  v.  Carter, 
63  N.   J.   Eq.   726. 

77.  Memphis  News  Pub.  Co  v.  Southern 
R.  Co.   (Tenn.)   75  S.  W.  941. 


S   6E 


DEMURRER. 


1075 


purpose  of  a  cross  pe.tition  is  defensive  only,  it  need  not  be  brought  on  equitable 
grounds  nor  ask  equitable  relief,  but  when  it  asks  affirmative  relief,  it  must  be( 
limited  to  equitable  matters  if  not  to  matters  cognizable  on  equitable  grounds."** 
A  cross  petition  in  a  suit  to  remove  a  cloud  on  title,  not  authorized  under  the  Burnt 
Eecords  act  and  alleging  nothing  not  already  stated  in  the  answer  and  not  asking 
that  a  conveyance  be  removed  as  a  cloud  on  title,  may  be  stricken  from  the  files.'''' 
A  cross  bill  should  not  be  dismissed  on  sustaining  demurrer  for  nonjoinder  without 
giving  an  opportunity  to  amend.«">  Where  cross  complainant  filed  no  amended 
cross  bill  on  being  granted  leave  to  do  so  but  proceeded  to  hearing,  the  court,  in  its 
discretion,  may  refuse  an  application  to  amend  made  more  than  six  months  after 
the  close  of  the  hearing.*^ 

(§6)  E.  Demurrer.^^  Grounds.^^ — The  remedy  for  improper  waiver  of  an- 
swer under  oath  is  by  motion  not  by  demurrer.^*  A  general  demurrer  will  not  lie  if 
the  bill  states  any  ground  for  equitable  relief  f^  nor  to  a  bill  containing  matter  proper 
for  relief  together  with  matter  not  calling  for  relief;^*'  nor  to  a  bill  praying  special 
relief  on  several  grounds  and  general  relief,  if  any  claim  of  the  bill  is  allowed  ;^^ 
nor  because  a  discovery  and  an  accounting  were  sought  which  could  not  be  grant- 
ed;*^ nor  where  it  seeks  to  have  the  whole  bill  declared  bad  for  objections  apply- 
ing only  to  parts  of  it.®^  A  demurrer  is  properly  sustained  to  a  petition  on  the 
face  of  which  it  appears  that  there  is  an  adequate  remedy  at  law;^°  or  to  a  biJl 
showing  laches  in  assertion  of  the  rights  maintained  f^  or  to  a  bill  stating  a  cause 
witliin  the  statute  of  limitations  at  law;"-  and  whether  averments  of  an  equitable 
petition  warrant  the  relief  asked  by  its  prayers  will  be  determined  on  general  de- 
murrer.^^  Any  number  of  grounds  for  special  demurrer  will  not  sustain  a  gen- 
eral demurrer.®*  A  general  demurrer  will  lie  to  a  bill  showing  laches.®'  Only 
grounds  apparent  on  the  face  of  the  pleading  can  be  raised  by  demurrer.®**     A 


78.  But  under  the  Nebraska  Code  this 
practice  is  so  far  changed  that  the  relief 
need  not  be  equitable  when  based  on  equi- 
table grounds,  but  the  matters  set  up  in  the 
cross  petition  must  be  germane  to  the  origi- 
nal suit — Armstrong  v.  Mayer  (Neb.)  95  N. 
W.  51. 

7!».  Kurd's  Rev.  St.  1899,  c.  116— South 
Chicago  Brew.  Co.  v.  Taylor  (111.)  68  N.  E. 
732. 

80.  Price  V.  Stratton   (Fla.)   33  So.  644. 

81.  Ferguson  Contracting  Co.  v.  Manhat- 
tan Trust  Co.  (C.  C.  A.)  118  Fed.  791. 

82.  Sufficiency  of  demurrer  under  Chan- 
cery Rule  9,  in  Michigan — Schaub  v.  Welded 
Barrel  Co.   (Mich.)   9.0  N.  W.  335. 

S3.  The  federal  statute  declaring  that  no 
declaration  or  bill  in  a  civil  case  in  the 
federal  courts  shall  be  quashed  for  defects 
or  want  of  form,  except  those  specially  set 
down  by  the  party  in  case  of  demurrer  and 
requiring  the  court  to  amend  all  defects  or 
want  of  form  other  than  those  expressed  in 
the  demurrer,  applies  to  suits  in  equity  (Rev. 
St.  §  954) — Dancel  v.  United  Shoe  Mach.  Co., 
120  Fed.  839. 

84.  Springfield  Co.  v.  Ely  (Fla.)  32  So. 
892. 

8."».  Orlando  v.  Equitable  Bldg.  &  Loan 
Ass'n  (Fla.)  33  So.  986.  On  general  demur- 
rer for  want  of  equity,  the  bill  must  be 
construed  most  strongly  against  the  pleader, 
though  if  there  is  any  ground  of  equitable 
relief  or  any  number  of  grounds  for  special 
demurrer  the  general  demurrer  will  be  over- 
ruled— Johnson  v.  McKinnon  (Fla.)  34  So. 
272.     Not  to  a  complaint  asking  to  set  asidb 


Ga.  795^ 
l1    Co.    m^.    Va.) 

:innon   K'la.)    34 
,    118    ^d.    885; 


a  will  for  fraud  and  also  a  transfer  of  prop- 
erty, for  want  of  consideration,  on  the 
ground  that  equity  has  no  jurisdiction  in 
cases  of  fraud  in  execution  of  a  will.  Equity 
will  take  jurisdiction  as  to  fraudulent  trans- 
fers of  property — Delabarre  v.  McAlpin,  71 
App.  Div.    (N.  Y.)    591. 

86.  Turner  v.  Stewart,  51  W.  Va.  493. 

87.  Junior  Order  Bldg.  &  Loan  Ass'n  v. 
Sharpe,  63  N.  J.  Eq.  500. 

88.  Gorman  v.  Stillman  (R.  L)  52  Atl.  1088. 

89.  Orlando  v.  Equitable  Bldg.  &  Loan 
Ass'n    (Fla.)    33    So.    986. 

90.  Sharpe  v.  Hodges,  116  Ga.  795, 

91.  Pliillips    V.    Piney    Coal 
44  S.  E.   774;   Johnson  v.  McKi 
So.    272;    Potts    v.    Alexander, 
Wilson    V.    Wilson,    41    Or.    459,    69    Pac.    923. 
However  see  Gleason  v.  Carpenter,  74  Vt.  399. 

92.  Equity  follows  the  law  by  analogy — - 
Parmelee  v.  Price,  105  111.  App.  271. 

93.  Copeland  v.  Cheney,  116  Ga.  685. 

94.  95.  Johnson  v.  McKinnon  (Fla.)  34  So. 
272. 

96.  A  demurrer  cannot  be  sustained  to  a 
bill  against  an  administrator  to  enforce  the 
sale  of  stock  which  decedent  had  agreed 
should  be  sold  to  his  fellow  shareholders  at 
his  death  for  a  value  to  be  agreed  upon  by 
arbitration  on  the  ground  that  the  arbitra- 
tion had  been  revoked,  where  the  revocation 
is  not  shown  in  the  bill — Fitzsimmons  v. 
Lindsay,  205  Pa.  79.  Facts  in  support  of  a 
contention  that  a  tender  of  borrowed  money 
is  necessary  to  maintenance  of  a  suit  to  avoid 
a  mortgage  must  be  raised  by  answer  and 
not  demurrer   where   they   do   not  appear   on 


1076 


EQUITY. 


§   6P 


demurrer  will  not  lie  to  part  of  a  bill  and  answer  to  a  part  where  the  different 
paragraphia  are  interdependent  so  that  the  bill  cannot  be  divided  into  parts.^'  A 
joint  demurrer  will  not  be  sustained  unless  good  as  to  all  parties  joining  in  it.** 

Effect  of,  and  procedure  on,  demurrer. — A  demurrer  admits  the  allegations 
of  the  bill  and  during  its  pendency  it  does  not  matter  whether  the  bill  is  prop- 
erly verified.^®  AVhether  specifications  and  drawings  of  a  patent  are  sufficiently 
full  and  clear  to  enable  experts  in  the  art  to  understand  them  cannot  be  deter- 
mined on  demurrer  to  a  bill  for  infringement.^  Where  a  bill  by  one  tenant  in 
common  is  not  sustained  as  to  the  right  of  complainant  to  erect  a  monument  on 
certain  land  removed  by  defendant,  it  will  not  be  retained  after  demurrer  to  try 
the  issue  of  damages  to  the  monument  by  removal."  If  defendant  asks  and  is 
given  leave  to  allow  his  answer  to  the  original  bill  to  stand  as  answer  to  the 
amended  bill,  he  cannot  demur  thereafter,  except  as  to  new  matter  set  up  in  the 
amendment.'  Sustaining  a  demurrer  to  an  insufficient  plea  is  not  ground  for  re- 
versal, though  the  proper  practice  is  to  set  the  plea  down  for  hearing  on  the 
sufficiency  or  by  motion  to  strike.*  After  a  successful  demurrer  by  two  of  several 
defendants  claiming  in  the  same  right  because  of  failure  to  state  a  cause  of  action 
against  any  defendant,  the  bill  is  properly  dismissed  as  to  all,  though  the  other 
defendants  do  not  appear.^  Where  the  court  on  demurrer  settles  the  principles 
in  favor  of  plaintiff  without  action  pro  forma  on  the  demurrer,  it  will  be  con- 
sidered that  the  sufficiency  of  the  bill  was  settled  in  rendering  the  decree,  thereby 
substantially  overruling  the  demurrer.**  A  joint  and  several  demurrer  in  behalf 
of  two  defendants  is  abandoned  after  being  overruled  where  it  appears  that  de- 
fendants were  ruled  to  answer  and  failed,  and  the  bill  was  taken  as  confessed  against 
tliem,  and  no  intention  appears  on  their  part  to  stand  by  their  demurrer.''  Whore 
a  bill  shows  a  case  in  double  aspect  by  charging  certain  acts  as  an  infringement  of  a 
patent  and  charging  unfair  competition  and  asks  relief  on  both  grounds.,  an  order 
sustaining  a  demurrer,  addressed  to  one  aspect  of  the  bill  only,  is  merely  interlocu- 
tory and  may  be  revised  before  final  decree,  and  the  bill  may  be  amended  as  to  that 
portion,  at  any  time  with  the  permission  of  the  court.*  A  demurrer  on  file  must  be 
considered  as  waived  where  the  attention  of  the  trial  court  is  not  directed  to  it  during 
the  pendency  of  the  cause.® 

(§6)  F.  Plea. — Laches  may  be  raised  by  plea.^"  A  plea  alleging  laches  is  in- 
sufficient if  it  fails  to  state  facts  sufficient  to  constitute  estoppel  by  lapse  of  time." 
A  plea  stating  a  number  of  facts  all  tending  to  one  conclusion,  namely  that  the 
court  is  without  jurisdiction  on  the  subject-matter,  is  not  multifarious.^^  A  plea 
court  is  without  jurisdiction  of  the  subject-matter,  is  not  multifarious.^-  A  plea 
the  state  may  be  properly  stricken.^'     After  a  plea  has  been  set  down  for  argu- 


the  face  of  the  complaint — Lange  v.  Geiser, 
138   Cal.    682.  72  Pac.    343. 

07.     Sledge  v.   Dickson    (Miss.)    33   So.    282. 

98.  Brown  v.  Tallman  (N.  J.  Ch.)  54  Atl. 
457.  A  demurrer  to  a  bill  by  a  judgment 
creditor  against  an  insolvent  corporation  to 
compel  discovery  of  names  and  holdings  of 
stockholders  on  the  ground  that  the  corpora- 
tion was  chartered  subject  to  a  certain  stat- 
ute, and  that  it  did  not  appear  by  the  bill 
thp.t  the  corporation  had  ever  accepted  the 
general  statute  governing  corporations  and 
the  liability  of  stockholders  is  without  merit, 
where  the  bill  merely  alleges  that  the  cor- 
poration Is  a  manufacturing  company  doing 
business  in  a  certain  city — Clark  v.  Rhode 
Island  Locomotive  Works    (R.   I.)    53  Atl.   47. 

99.  Sharpies    v.    Baker,    100    111.    App.    108. 


1. 

136. 

2. 

3. 
535. 

4. 

5. 

6. 


Dade  v.  Boorum  &  Pease  Co.,  121    Fed. 


Capen  v.  Leach,  182  Mass.  176. 
Pennsylvania  Co.  v.   Bond,    99   111. 


App. 


Breeding  v.  Grantland,  135  Ala.  497. 
Griffiths  V.   Griffiths.   IDS   111.   632. 
Le  Sage  v.  Le  Sage,  52  W.  Va.  323. 

7.  Jocelyn  v.  White,  98  111.  App.  50. 

8.  Globe-Wernicke  Co.  v.  Fred  Macey  Co. 
(C.   C.  A.)    119   Fed.    696. 

9.  Cessna  v.   Benedict.   98   III.  App.   440. 

10.  Potts   v.   Alexander,    118    Fed.    885. 

11.  Crafts  v.  Crafts,  23  R.  I.  5. 

12.  Vacuum   Oil   Co.   v.   Eagle   Oil   Co.,    122 
Fed.   105. 

13.  Under   rule    48    of    the    circuit    court — 
Moore  v.  Clem    (Fla.)   34  So.   305. 


.§  6G 


ANSWER. 


1077 


nient  by  complainant,  facts  stated  therein  must  be  taken  as  true.^*  After  a  plea 
to  the  jurisdiction  has  been  filed,  duly  noticed,  and  set  down  for  argument  at 
the  following  term,  complainant  cannot  move  to  strike  it  out.^°  If  no  objection 
is  made  to  the  sufficiency  of  a  plea,  defendant  is  entitled  to  a  dismissal  if  he 
proves  a  good  defense  thereunder.^® 

(§6)  G.  Answer. — After  foreclosure  is  well  advanced  under  a  reference,  the 
master  may  properly  refuse  a  motion  for  leave  to  answer  over.^^  A  defendant  who 
files  a  demurrer  merely  for  delay  will  be  allowed  to  answer  only  on  payment  of  costs 
and  reimbursement  of  complainant's  unnecessary  expenses. ^^  Facts  not  appeai'- 
ing  on  the  face  of  the  complaint  must  be  presented  by  answer  and  not  demurrer.^" 
An  answer  afl^ecting  the  right  of  a  co-defendant,  and  asking  relief  as  against  him, 
must  be  served  upon  him."**  Laches,^^  or  the  existence  of  an  adequate  remedy 
at  law,  may  be  raised  by  answer.-^  Where  plaintiff  pleads  a  contract  as  the  ground 
of  his  equity,  defendant  may  plead  the  whole  contract  as  it  existed.^* 

Verification  and  sufficiency. — If  the  oath  of  an  answer  is  defective,  complain- 
ant must  except  or  move  to  strike  it  from  the  files  or  apply  for  a  decree  pro  con- 
fess©.^* If  amendments  to  a  bill  after  sworn  answer  gives  no  new  cause  of  action 
or  facts  requiring  answer,  the  denial  of  the  answer  applies  to  it  without  further 
oath  or  verification.^^  The  answer  must  be  responsive  to  the  bill.-"  Defendant 
is  not  excused  from  answering  interrogatories  filed  with  a  bill  by  the  fact  that 
they  are  not  specifically  referred  to  therein,  if  he  is  not  prejudiced  by  the  fail- 
ure.-^ Wliere  defendant  in  his  answer  attempts  to  excuse  failure  to  answer  inter- 
rogatories, he  must  set  out  as  specifically  the  grounds  for  such  refusal  as  in  a  de- 


14.  Metcalf  v.  American  School  Furniture 
Co..    122   Fed.    115. 

15.  Under  rule  213  of  the  New  Jersey 
chancery  court  and  Chancery  act  1902,  §  20 — 
Wilson  V.  American  Palace  Car  Co.,  63  N.  J. 
Eq.    557. 

IC.  Holloway  v.  Southern  Building  &  Loan 
Ass'n,    136    Ala.   160. 

17.  Kiddell  v.  Bristow  (S.  C.)   45  S.  E.  174. 

18.  Especially  where  it  appears  that  com- 
plainant's counsel  resides  at  a  distance  from 
the  court — Merrimac  Mattress  Mfg.  Co.  v. 
Schlesinger,    124    Fed.    237. 

19.  That  complainant  seeking  to  avoid  a 
mortgage  had  made  no  tender — Lange  v. 
Geiser,  138  Cal.  682,  72  Pac.  343.  And  see  § 
5  E,  ante,  as  to  what  may  be  raised  by  de- 
murrer. 

20.  Turner  v.  Stewart,  51  W.  Va.  493. 
31.     Potts   V.   Alexander,    118    Fed.   885. 

22.  Vannatta  v.  Lindley,  198  111.  40;  but 
where  the  lack  of  an  adequate  remedy  at  law 
is  necessary  to  interference  of  equity  for 
plaintiff,  the  objection  of  its  presence  need 
not  be  taken  by  answer — Everett  v.  De  Fon- 
taine, 78  App.  Div.   (N.  Y.)    219. 

23.  McCoy  v.  Kane,   19  Pa.  Super.  Ct.  187. 

24.  By  setting  a  cause  down  for  hearing 
on  bill  and  answer  before  replication  filed 
and  before  it  is  at  issue,  he  will  be  held  to 
have  admitted  all  its  allegations  at  the  hear- 
ing regardless  of  a  defective  verification — 
Lee  V.  Bradley  Fertilizer  Co.  (Fla.)  33  So. 
456. 

25.  Simonson   v.    Cain    (Ala.)    34    So.    1019. 

26.  An  answer  confined  to  facts  necessa- 
rily required  by  the  bill  and  other  facts  in- 
separably connected  so  that  they  constitute 
one  and  the  same  transaction,  is  responsive 
•*v-hen  it  discharges  as  well  as  when  it  char- 


ges the  defendant — Maxwell  v.  Jacksonville 
Loan  &  Imp.  Co.  (Fla.)  34  So.  255.  Where  an 
answer  to  a  bill  to  set  aside  a  conveyance  of 
land  for  fraud  is  based  on  the  vacant  char- 
acter of  the  land,  and  alleges  that  defend- 
ant is  in  possession,  it  is  responsive  and 
the  bill  must  be  dismissed  if  no  other  proof 
appears — Ropes  v.  Jenerson  (Fla.)  34  So.  955. 
Answer  to  bill  to  set  aside  a  tax  sale  as 
evasive  and  irresponsive  and  deficient  in 
failing  to  require  complaijiant  to  prove  the 
allegations  of  his  bill — Applewhite  v.  Fox- 
worth,  79  Miss.  773.  Equity  rule  34  which 
directs  that  defendant  shall  be  assigned  to 
^.nswer  the  bill,  or  so  much  thereof  as  is 
covered  by  a  plea  or  demurrer,  after  the 
plea  or  demurrer  overruled,  as  applied  in 
the  decisions  of  the  federal  supreme  court, 
though  such  rule  is  not  there  construed  or 
explained,  controls  a  defendant  desiring 
to  answer  after  an  issue  of  fact  has  been 
determined  against  him  on  a  plea  joined — 
Westervelt  v.  Library  Bureau  (C.  C.  A.)  118 
Fed.  824.  Where  the  interrogatory  of  a  bill 
to  set  aside  a  deed  as  fraudulent,  calls  upon 
defendants  to  answer  whether  any  valuable 
consideration  was  received,  what  it  Tvas, 
where  and  when  paid,  and  who  were  pres- 
ent, and  the  answer  stated  that  a  valuable 
consideration  was  paid,  whicli  consisted  in 
the  liquidation  of  a  debt  from  the  grantor 
to  the  grantee  in  a  certain  amount  for  un- 
paid rent  and  in  cash  of  a  certain  amount 
paid  from  time  to  time  by  currency  and 
check  as  the  business  of  the  grantor  re- 
quired, the  responses  did  not  possess  the 
precision  and  detail  required  by  the  bill — 
O'Connor  v.  Williams  (N.  J.  Eq.)  53  Atl.  550. 
27.  Specific  reference  required  by  Equity 
Rule  43 — Federal  Mfg.  &  Printing  Co.  v.  In- 
ternational Bank  Note  Co.,  119  Fed.  385. 


1078 


EQUITY. 


§  6H 


murrer  on  the  same  grounds."  Defendant  cannot  be  required  to  answer  as  to 
a  trade  secret.^^  An  answer  relevant  to  particular  relief  or  the  costs  is  not  im- 
pertinent.^" 

Effect  of  answer;  as  evidence;  admissions.— A  responsive  answer  is  conclusive, 
imless  opposed  by  two  witnesses  or  by  one  witness  and  corroborating  facts  equal  to 
the  testimony  of  another  ;3^  however,  in  West  Virginia  by  statute  an  answer  is 
not  evidence,  whether  under  oath  or  not,  but  only  puts  plaintiff  on  proof  of  his 
bill  as  denied  by  the  answer.'^  /^^  answer  under  oath  has  only  the  effect  of  an 
unsworn  answer,  where  the  bill  expressly  waives  a  sworn  answer,^^  but  a  bill  can- 
not be  amended  after  a  sworn  answer  has  been  filed  in  response  to  a  demand  in  the 
original  bill  so  as  to  waive  the  sworn  answer,  especially  as  to  matter  set  up  in  the  orig- 
inal bill."  The  answer  is  taken  as  true  where  the  case  is  heard  on  bill  and  answer,  or 
on  bill,  answer,  and  exhibits,^'  Jurisdictional  averments  cannot  be  supplied  by  alle- 
gations of  the  answer.^^  If  complainant  introduces  defendant's  answer  in  evi- 
dence, its  denials  must  be  considered  as  well  as  its  admissions."  An  answer  which 
admits  a  fact  not  mentioned  in  the  note  of  testimony  or  order  of  submission,  does 
not  constitute  evidence  of  that  fact.^^  Where  an  unsworn  answer  in  foreclosure 
denied  payment  of  a  debt,  but  admitted  execution  of  a  mortgage,  plaintiff's  proof 
consisting  of  the  note,  mortgage,  and  answer,  was  insufficient.^^ 

(§6)  H.  Replications,  exceptions,  and  motions. — Where  a  plea  is  allowed  on 
argument,  complainant  may  file  a  replication  and  contest  its  truth.***  A  general 
replication  filed  to  a  plea  in  bar  does  not  admit  its  sufficiency."  Under  Code  Miss.  § 
5-iO,  no  replication  to  an  answer  is  necessary .^^  Exceptions  must  be  filed  to  the  form 
of  a  plea.*^  Exceptions  cannot  be  allowed  to  the  entire  answer  for  insufficiency 
where  a  material  averment  of  the  bill  is  denied,**  nor  is  failure  to  answer  an  im- 
material averment  ground  of  exception,*^     A  motion  to  strike  out  a  cross  bill  for 


28.  Equity  Rule  44— Boyer  v.  Keller,  113 
Fed.  580. 

39.  Federal  Mf^.  &  Printing  Co.  v.  Inter- 
national Bank  Note  Co..  119  Fed.   385. 

30.  Robertson  v.  Dunne    (Fla.)    33  So.  530. 

31.  Hopkins  v.  Stoneroad,  21  Pa.  Super. 
Ct.  168.  Suit  to  have  plaintiff  declared  the 
owner  of  a  third  interest  in  a  mortgag;e — Mc- 
Coy V.  Kane,  19  Pa.  Super.  Ct.  187.  Where  a 
sworn  answer  is  not  expressly  waived  by 
the  bill — Calivada  Colonization  Co.  v.  Hays, 
119  Fed.  202.  Testimony  by  a  wife  support- 
ing that  of  her  husband  as  against  an  answer 
In  equity  is  entitled  at  least  to  the  weight 
of  a  corroborating  circumstance  so  as  to 
satisfy  the  equitable  requirement — Sharp  v. 
Behr,  117  Fed.  864.  On  a  motion  for  disso- 
lution of  an  injunction  to  restrain  a  trus- 
tee's sale,  a  denial  by  the  sworn  answer  of 
an  allegation  in  the  bill  that  certain  judg- 
ment liens  are  prior  to  the  lien  of  a  trust 
deed  must  be  taken  as  true,  where  no  proof 
is  given  on  the  subject — Hudson  v.  Barham 
(Va.)   43  S.  E.  189.  . 

32.  Code  1899.  c.  125,  §§  38,  59— Knight  V. 
Nease  (W.  Va.)   44  S.  E.  414. 

33.  Morrison  v.   Hardin    (Miss.)    33   So.    80. 

34.  Springfield  Co.  v.  Ely  (Fla.)  32  So.  892. 

35.  Complainant  thereby  admits  all  the 
allegations  of  the  answer  whether  responsive 
or  not  and  that  he  has  no  ground  of.  relief 
except  as  admitted  in  the  answer— Goddard 
V.  Chicago,  etc..  R.  Co.,  104  111.  App.  526; 
Gates  V.  City  of  Grand  Rapids  (Mich.)  95  N. 
W.  998;  Ropes  v.  Jenerson  (Fla.)  34  So.  955. 
After  complainant  secures  the  suit  to  be 
set    down    for    hearing    on    bill,    answer    and 


replication  before  the  three  months  allowed 
by  Equity  Rule  No.  71  for  taking  testi-  ■ 
mony  and  a  hearing  is  had  by  the  parties 
without  testimony,  and  .without  objection 
by  defendants,  they  have  ■«^aived  their  right 
to  take  testimony  and  their  answer  is  evi- 
dence only  in  so  far  as  it  is  responsive — 
aiaxwell  v.  Jacksonville  Loan  &  Imp.  Co. 
(Fla.)    34    So.    255. 

36.  A  defect  in  a  bill  by  a  purchaser  at  a 
foreclosure  sale  for  subrogation  to  the  rights 
of  another  mortgagee,  in  that  It  does  not 
show  that  the  mortgage  was  a  subsisting 
incumbrance  on  the  land  is  not  cured  by  an 
admission  in  the  answer  that  the  satisfaction 
of  the  mortgage  was  void — Tait  v.  American 
Freehold  Land  Mortg.  Co.,  132  Ala.  193. 

37.  Scott   V.    Brassell.    132   Ala.    660. 

38.  Tait  V.  American  Freehold  Land 
Mortg.   Co..   132   Ala.    193. 

39.  Scott   V.    Brassell.    132    Ala.    660. 

40.  Austin  V.  Hoxsie  (Fla.)   32  So.  878. 

41.  Under  Equity  Rule  33 — Soderberg  v. 
Armstrong,    116    Fed.    709. 

42.  Where  an  answer  to  a  bill  seeking  to 
subject  certain  railroad  property  to  payment 
of  taxes  alleged  that  the  railroads  were  con- 
structed by  companies  under  charters  which 
contained  exemption  privileges,  an  issue  was 
raised  without  replication  as  to  "what  com- 
pany constructed  the  road — Yazoo,  etc.,  R. 
Co.   V.  Adams   (Miss.)    32  So.   937. 

43.  Formal  objections  waived  by  setting 
plea  dow^n  for  hearing — Vacuum  Oil  Co.  v. 
Eagle  on  Co.,  122  Fed.   105. 

44.  Moore  v.  Clem  (Fla.)  34  So.  305. 

45.  Peters   v.    Tonopah   Min.    Co.,    120    Fp-]. 


§  6J 


OBJECTIONS  AND  WAIVER. 


1079 


irrelevant  xnatter  stated  is  a  substitute  for  a  demurrer  and  raises  the  question  of 
legal  sufficiency  of  its  allowance  as  the  basis  for  relief.*" 

If  a  motion  to  strike  out  pleas  is  not  tried  or  submitted  for  trial,  it  will  be 
considered  abandoned.*^ 

(§6)  I.  Issues,  proof,  and  variance. — The  evidence  offered  must  correspond 
with  the  allegation  in  the  pleadings  and  be  confined  to  the  issues.*^  Material  aver- 
ments in  the  bill,  neither  admitted  nor  denied  by  the  answer,  must  be  proved.*'-* 
Where  the  liabilities  of  several  respondents  to  a  bill  are  separate  and  distinct 
as  among  themselves,  material  facts  denied  by  any  of  them  may  be  proven,  though 
admitted  by  a  majority  of  them.^"  A  certified  copy  of  a  corporate  charter  sup- 
plemented by  parol  testimony  is  sufficient  on  the  issue  of  incorporation  as  against 
a  denial  on  information  and  belief,^^ 

(§6)  J.  Objections  and  luaiver  thereof. ^^ — Wliere  a  case  has  been  sent  to  a 
leferee  by  agreement,  want  of  jurisdiction  cannot  be  first  raised  by  defendant  after 
close  of  the  testimony."^  Misjoinder  of  causes  and  parties  must  be  objected  to  before 
trial."*  An  order  appointing  a  receiver  is  not  void  because  an  amended  bill  was 
not  verified,  no  objection  for  the  defect  being  taken  at  the  time.^^  An  objection 
that  anotlier  action  for  the  same  cause  was  pending,  made  by  answer  but  stricken 
out  during  the  trial  on  defendant's  motion,  is  waived.^"  Consent  by  defendants 
to  amendment  and  failure  to  demur  to  the  original  bill  for  omissions  waives  any 
defects  thereby  created.^'     The  right  to  allege  error  in  the  overruling  of  a  de- 


537.  Exception  will  not  lie  to  an  answer  In 
a  suit  in  a  federal  court,  which  fails  to  an- 
swer an  averment  of  the  bill  that  a  true 
and  -correct  copy  of  the  plat  referred  to  is 
attached  and  made  an  exhibit,  where  no 
rule  of  pleading  requires  such  exhibits  to  be 
attached. — Id. 

4G.  Hanneman  v.  Kichter,  63  N.  J.  Eq.  753. 
A  motion  to  strike  out  that  part  of  an  an- 
swer in  partition  denying  the  title  claimed  by 
the  bill,  as  that  of  tenants  in  common  with 
defendant  under  a  certain  devise,  should 
be  denied,  since  it  is  merely  a  substitute  for 
an  exception  instead  of  a  demurrer,  and  that 
part  of  such  answer  in  question  is  not  im- 
pertinent.     Chancery   Rule    213 — Id. 

47.  Adair  v.   Feder,   133   Ala.    620. 

48.  Stockton  V.  National  Bank  of  Jackson- 
ville (Fla.)  34  So.  897.  Proof  as  to  an  essen- 
tial fact  is  insufficient  however  full  and  con- 
vincing it  may  be,  unless  the  fact  is  alleged 
in  the  pleadings — Lyle  v.  Wynn  (Fla.)  34  So. 
158.  Where  in  a  suit  to  set  aside  a  con- 
veyance from  husband  to  wife  on  the  ground 
of  fraud  of  creditors  a  set-off  is  not  pleaded 
against  the  claim  by  cross-bill,  no  evidence 
of  such  set-off  can  be  introduced— Noble  v. 
Gilliam,  136  Ala.  618.  Where  a  proceeding  is 
brought  in  joint  names  of  the  owner,  of  a 
patent  and  another  to  restrain  infringement, 
defendant  has  no  concern  with  the  terms  of 
the  agreement  regarding  the  patent  between 
the  parties  plaintiff  whether  it  constitutes 
an  exclusive  license  to  manufacture  or  an 
unlawful  combination  in  restraint  of  trade — 
Cincinnati  Unhairing  Co.  v.  American  Fur 
Refining  Co.,  120  Fed.  672.  Evidence  show- 
ing an  agreement,  the  existence  of  which 
was  not  alleged  in  the  pleadings,  is  irrelevant 
and  inadmissible  under  a  cross  bill.  Cross 
bill  to  enforce  a  statutory  lien  on  railroad 
property  in  favor  of  a  sub-contractor  under 
which  evidence  was  Introduced  showing  an 
agreement    by    the    principal    contractor    to 


take  certain  bonds  of  the  company  at  a  cer- 
tain price,  which  the  sub-contractor  had 
agreed  to  receive  in  part  payment  for  work 
done — Ferguson  Contracting  Co.  v.  Manhat- 
tan Trust  Co.  (C.  C.  A.)  118  Fed.  791.  Va- 
riance between  allegations  of  bill  and  evi- 
dence in  a  suit  by  a  deserted  wife  to  set 
aside  a  conveyance  by  her  former  husband  is 
without  consideration  and  inimical  to  her 
interests  and  because  the  homestead  was 
released  without  her  joinder  In  the  deed — 
Smith  V.  Kneer,   203  111.   264. 

49.  Glos   V.    Cratty,    196    111.    193. 

50.  Henderson  v.  Hall,  134  Ala.  455;  Hall 
\'.  Henderson,  Id. 

51.  Samuel  Bros.  &  Co.  v.  Hostetter  Co. 
(C.    C.   A.)    118    Fed.    257. 

52.  Complainant  waives  any  objection  to 
a  plea  in  form  or  substance  which  may  only 
be  taken  by  exceptions  by  setting  the  plea 
down  for  argument  without  replication  and 
admits  the  truth  of  all  facts  well  pleaded 
however  inconsistent  or  contradictory  to  the 
bill — Cook  V.  Sterling  Electric  Co.,  118  Fed. 
45.  Where  a  devisee  had  taken  an  assign- 
ment of  claims  of  liis  testator  to  damages  be- 
cause of  tlie  operation  of  an  elevated  rail- 
road in  front  of  premises  belonging  to  the 
estate  and  Tisks  recovery  for  past  damages 
sustained  to  the  estate  in  a  suit  to  restrain 
maintenance  of  the  road,  defendant  waived 
any  right  to  have  such  damages  ascertained 
in  an  action  at  law,  where  he  made  no  objeo- 
tion  to  the  plaintiff's  right  to  recover  in  an 
equitable  proceeding,  though  proof  was  re- 
ceived— Hirsh  V.  Manhattan  R.  Co.,  8  4  App. 
Div.   374. 

53.  Richmond  v.  Bennett,   205  Pa.   470. 

54.  Curran  v.  Hagerman  (Neb.)  92  N.  W. 
1003. 

55.  Clark  v.  Brown  (C.  C.  A.)  119  Fed.  130. 

56.  Under  Code  Civ.  Proc.  §§  168,  169 — Kid- 
dell  v.  Bristow   (S.   C.)   45   S.   E.   174. 

57.  Hauk  V.  Van  Ingen,  196  111.  20. 


1080 


EQUITY. 


§  6K 


murrer  to  a  bill  is  not  lost  b}-  attending  the  taking  of  testimony  before  the  mas- 
ter and  cross-examination  of  witnesses.^^  A  defendant  does  not  waive  error  In 
the  overruling  of  a  demurrer  by  failing  to  give  notice  and  secure  entry  of  record 
that  he  had  elected  to  abide  by  the  demurrer.^''  Where,  by  his  pleadings,  defend- 
ant asks  equitable  relief,  he  waives  any  objection  to  equitable  jurisdiction,^"^  such 
objection,  where  based  on  facts  appearing  on  the  face  of  the  bill,  is  waived  by 
failure  to  demur.®^ 

(§6)  K.  Pleading  ladies  and  acquiescence. — Laches  need  not  be  pleaded  as  a 
defense,  but  it  is  sufl&cient  if  it  appears  from  the  evidence.®-  It  may  be  raised  by 
plea  or  answer,  or  on  the  hearing,  or  preliminary  to  the  hearing.®^  Generally, 
it  may  be  pleaded  by  demurrer,''*  especially  if  plaintiff  shows  requisite  facts  con- 
stituting laches;"^  however,  in  Vermont,  it  seems,  the  rule  is  otherwise.*'^  The 
statute  of  limitations  may  be  raised  by  demurrer." 

§  7.  Tal-ing  hill  as  confessed  or  default. — Complainant  is  not  entitled  to  a 
decree  pro  confesso  if  his  complaint  is  insufficient  to  support  such  decree  though 
defendant  may  be  in  default;''^  such  decree  is  properly  entered  after  time  granted 
lo  answer  on  overruling  a  demurrer  but  no  answer  is  filed,  unless  a  sufficient 
cause  for  not  pleading  is  shown,  or  a  good  cause  for  further  time  to  plead,®®  and 
if  defendants  are  not  under  disability,  follows  as  a  matter  of  course  after  default 
entered  against  them  and  cannot  be  assailed  if  warranted  by  averments  of  the 
bill.'^''  Equity  rules  being  extended  to  proceedings  to  enforce  the  bankruptcy  act, 
failure  to  file  an  answer  to  a  petition  for  expunging  a  claim  will  give  plaintifc  a 
right  to  a  decree  pro  confesso  with  the  ordinary  consequences  of  such  decree.'^^ 
After  a  bill  has  been  taken  for  confessed,  evidence  is  introduced  only  in  the  dis- 
cretion of  the  court  and  may  not  be  required  if  facts  alleged  in  the  bill  and  con- 
fessed will  support  a  decree.'^  Ev«i  after  decree  pro  confesso,  the  final  decree 
must  be  based  on  allegations  of  the  bill  and  must  not  grant  more  than  is  asked 
for  and  shown  by  it.'^* 

§  8.  Trial  hy  jury  of  special  issues.''* — Where  a  feigned  issue  is  directed  to 
be  made,  the  order  should  provide  for  its  trial  by  jury,  unless  the  parties  waive 
a  jury." 


58.  Jocelyn  v.  White,  201  111.  16. 

59.  Jocelyn  v.  White,  201  111.  16. 

60.  A  defendant  asking  such  relief  by  an- 
swer cannot  object  that  an  action  to  quiet 
title  was  brought  on  the  equity  side  of  the 
docket — McBride  v.  Whitaker,  (Neb.)  99  N. 
W.  966.  In  a  suit  to  establish  a  boundary  be- 
tween adjacent  lands  defendant,  by  admit- 
ting the  dispute  and  praying  that  the  bound- 
ary be  established  on  the  line  described 
by  him,  waived  all  objection  to  jurisdiction 
— Killgore  v.  Carmichael  (Or.)  72  Pac.  637. 
Answering  and  going  to  trial  on  the  merits 
in  a  divorce  proceeding  after  the  overruling 
of  the  bill  on  the  ground  of  multifariousness, 
waives  any  objection  which  the  holder  of  the 
legal  title  to  the  land  claimed  by  the  wife 
as  owned  by  her  husband  may  have  had  to 
the  jurisdiction  of  the  court  to  determine 
the  ownership  of  the  land  in  the  divorce 
proceeding— VanVleet  v.  DeWitt,  200  111.  153. 

61.  Negaunee  Iron  Co.  v.  Iron  Cliffs  Co. 
(Mich.)  96  N.  W.  468.  Suit  to  restrain  re- 
moval of  line  fence — F.  H.  Wolf  Brick  Co.  v. 
Lonyo   (Mich.)    93  N.  W.  251. 

62.  Calivada  Colonization  Co.  v.  Hays,  119 
Fed.  202;  this  statement  Is  not  true  in  all 
jurisdictions,    see    Fletcher    Eq.    PI.    &    Pr.    | 


275.  On  a  petition  of  Intervention  in  fore- 
closure, laches  may  be  considered  as  a  de- 
fense without  being  pleaded — Gunderson  v. 
Illinois  Trust  &  Sav.   Bank,   199   111.   422. 

63.  Potts   v.   x\lexander,    118    Fed.    885. 

64.  Phillips  V.  Piney  Coal  &  Coke  Co.  (W. 
Va.)  44  S.  E.  774;  Johnson  v.  McKinnon 
(Fla.)  34  So.  272;  Potts  v.  Alexander,  118 
Fed.   885;   Fletcher   Eq.   PI.   &  Pr.   §§  207,    275. 

65.  Wilson  v.  Wilson,  41  Or.  459,  69  Pac. 
923. 

66.  Gleason  v.  Carpenter.   74  Vt.   399. 

67.  Parmelee    v.    Price.    105    111.    App.    271. 
6S.     Wong  Him    v.   Callahan.    119   Fed.   381. 

69.  Ray  V.   Frank   (Fla.)    32  So.   925. 

70.  Dunfee  v.  Mutual  B.  &  L.  Ass'n,  101 
111.    App.    477. 

71.  Gen.  Rules  In  Bankruptcy  No.  37 — In 
re  Docker-Foster  Co.,   123   Fed.  190. 

72.  Jackson  Union  Tel.  Co.  v.  Ava,  etc., 
Tel.   Co.,   100  111.  App.  535. 

73.  Lyle  V.  Wynn  (Fla.)   34  So.  158. 

74.  Character  of  action  under  Code  prac- 
tice as  determining  right  to  jury  trial — New 
Harmony  Lodge  v.  Kansas  City,  etc.,  R.  Co. 
(Mo.  App.)   74  S.   W.   5. 

75.  Russell  V.  Chicago  &  aL  Elect.  R 
Co.,    98    111.   App.    347. 


§s 


ISSUES  TO  JURY, 


lOhi 


Eight  to  jury  trial. — A  jury  is  not  a  matter  of  right  in  an  equity  cause/*  but 
the  court  in  its  discretion  may  submit  to  the  jury  any  question  of  fact/'  where 
an  action  is  purely  one  of  equity  and  contains  no  legal  issues,  and  its  action  will 
not  be  disturbed  unless  such  discretion  is  abused/*  and  the  character  of  the  cause 
of  action  as  legal  or  equitable  determines  the  right  to  a  jury  under  the  codesJ" 
However,  it  is  generally  otherwise  as  to  legal  issues,^"  wherein  state  statutes  can- 
not control  the  federal  courts. ^^  After  equity  jurisdiction  is  developed,  it  con- 
tinues throughout  the  controversy  though  the  remedy  might  be  conferred  at  law, 
so  that  a  jury  trial  to  determine  a  set-off  may  be  denied.^-  Failure  to  apply  to 
the  court  on  notice  for  trial  by  jury  of  specific  questions  of  fact  is  a  waiver  there- 
of.^^  It  cannot  be  objected  that  the  judge  charged  the  jury  more  fully  for  one 
party  than  for  the  other  in  a  suit  in  equity,  where  it  appears  that  he  charged  fuUv 
the  defense  made  by  the  pleas  and  evidence  of  the  objecting  party.®*  The  court 
may  properly  refuse  to  submit  certain  questions  to  another  jury  after  a  disagree- 
ment by  the  first,  and  their  discharge  and  a  decree  on  testimony  already  heard.*^ 

Verdict  or  findings  and  effect  thereof. — The  verdict  is  advisory  only,**  and 
hence  error  cannot  be  assigned  on  the  form  in  which  interrogatories  were   bro- 


76.  Maggs  V.  Morgan,  30  V^^ash.  604,  71 
Pac.    188. 

7T.  Welch  V.  Tipperry  (Neb.)  92  N.  W. 
582.  Where  an  answer  in  a  suit  for  set- 
tlement and  accounting  of  a  partnership 
alleges  a  settlement,  the  issue  thereby  made 
may  be  taken  from  the  jury  in  the  discretion 
of  the  chancellor — Ely  v.  Coontz.  167  Mo. 
371.  In  a  suit  in  the  nature  of  a  bill  in 
equity  to  have  a  deed  to  a  bank  declared 
a  mortgage  so  as  to  allow  the  mortgagor  to 
redeem  or  to  enforce  a  vendor's  lien,  a  jury 
trial  is  not  allowable  except  that  the  judge 
may  take  the  jury's  verdict  on  the  issues 
as  advisory — Construing  Rev.  St.  1S99,  § 
691,  providing  for  jury  trials  in  actions 
to  recover  money  or  specific  personalty — 
Yancey  v.  People's  Bank  (Mo.  App.)  74  S. 
W.    117. 

78.  Gulp  v.  Mulvane  (Kan.)  71  Pac.  273; 
Reese's  Adm'r  v.  Youtsey,  24  Ky.  L.  R.  603, 
69  S.  W.  708.  Were  a  cross  bill  in  a  suit 
asking  a  decree  concelling  a  lease  and  a 
judgment  prays  affirmative  relief  destroy- 
ing plaintiff's  right  to  recover,  it  consti- 
tutes the  suit  one  in  equity  in  which  a 
trial  by  jury  is  properly  denied — Lincoln 
Trust  Co.  v.  Nathan  (Mo.)  74  S.  W.  1007. 
Where  an  appeal  is  taken  from  the  district 
court  in  a  proceeding  in  the  probate  court 
admitting  to  probate  a  spoliated  or  de- 
stroyed will,  a  jury  trial  is  not  a  matter  of 
right — Gallon  v  Haas  (Kan.)  72  Pac.  770. 
A  suit  to  set  aside  a  transfer  of  corporate 
stock  because  of  fraudulent  representations 
of  the  transferee,  to  restrain  holders  of  stock 
in  trust  for  him  from  disposing  of  it  and 
to  compel  delivery  of  stock  certificates  and 
require  a  re-issue  of  the  stock  of  plaintiff 
by  the  corporation,  is  exclusively  a  suit  in 
equity  so  that  neither  party  has  a  right  to 
a  jury  trial — Morrison  v.  Snow  (Utah)  72 
Pac.    924. 

79.  New  Harmony  Lodge  v.  Kansas  City, 
etc.,  R.  Co.  (Mo.  App.)  74  S.  W.  5.  A  jury 
is  not  a  matter  of  right  under  the  Code  in 
a  suit  to  restrain  maintenance  of  a  nuisance 
and  to  recover  past  damages — Under  Code 
Civ  Proc.  §  968 — Miller  v.  Edison  Electric 
Illuminating  Co.,  78  App.  Div.    (N.   Y.)   390. 

SO.     Where    defenses    by    way    of    counter- 


claim are  set  up  In  an  action  to  restrain 
the  sale  of  a  negotiable  note,  defendant 
may  have  a  jury  trial  on  the  issue  of  dam- 
ages— Larrabee  v.  Given  (Neb.)  91  N.  W.  604. 
Where  a  complaint  for  trespass  is  denied 
by  an  answer  alleging  a  highway  to  exist 
at  the  locus  of  the  alleged  trespass,  the  ac- 
tion is  at  law  entitling  either  party  to  a 
jury  on  the  legal  issues  though  injunctive 
relief  is  sought — State  ex  rel.  Hansen  v. 
Hart    (Utah)    72    Pac.    938. 

81.  In  a  creditor's  suit  in  a  federal  court 
against  the  judgment  defendant  and  anoth- 
er alleged  to  be  his  debtor  on  a  mere  money 
demand,  the  question  of  the  indebtedness  of 
the  third  person  if  denied  by  him  cannot 
be  tried  by  the  court  though  such  procedure 
is  authorized  by  the  statute  of  the  state, 
since  that  would  deprive  the  alleged  debtor 
of  his  constitutional  right  to  a  jury — Hud- 
son  V.   Wood,    119    Fed.    764. 

82.  Whitcomb  v.  Stringer  (Ind.  App.)  63 
N.  E.  582. 

83.  Under  Code  Civ.  Proc.  §  970 — Stein- 
way  v.  Von  Bernuth,  82  App.  Div.  (N.  Y. ) 
596. 

84.  Jordan  v.  Downs    (Ga.)    45  S.  B.   439. 

85.  Hardy  v.  Dyas,   203  111.    211. 

8G.  Kozacek  v.  Kozacek,  105  111.  App.  180; 
Yancey  v.  People's  Bank  (Mo.  App.)  74  S. 
W.  117;  Buckers  Irr.  Mill.  &  Imp.  Co.  v. 
Farmers'  Independent  Ditch  Co.  (Colo.)  72 
Pac.  49.  The  issue  whether  a  written  re- 
ceipt for  payment  of  money  should  be  re- 
formed to  show  that  the  amount  was  given 
in  full  payment  is  for  the  court  so  that 
a  verdict  of  the  jury  is  merely  advisory — 
Kammermeyer  v.  Hilz  (Wis.)  92  N.  W.  1107. 
In  an  action  by  a  creditor  against  persons 
alleged  to  have  fraudulently  converted  and 
concealed  property  of  his  decedent  debtor 
and  asking  discovery  for  himself  and  all 
other  creditors  of  decedent,  on  submission 
of  the  issues  to  a  jury  for  advisory  findings, 
the  court  may  refuse  to  accept  such  findings 
but  may  make  new  ones,  proper  in  its 
opinion  under  the  evidence,  since  the  ac- 
tion is  to  be  tried  by  the  court  and  not  as 
a  matter  of  right  by  the  jury — Culp  v.  Mul- 
vane   (Kan.)    71    Pac.    273. 


1082 


EQUITY. 


9A 


pounded.^^  Where  an  indefinite  verdict  is  returned,  the  court  may  request  tlie 
jurors  to  state  the  meaning  of  their  answers  and  suggest  that  more  explicit  an- 
swers be  made.^*  Adoption  of  a  special  verdict  of  a  jury  on  an  equitable  issue 
makes  it  the  court's  finding.^*  Submission  of  a  particular  issue  does  not  take 
the  whole  case  to  the  jury  so  that  the  court  may  refuse  to  consider  it.^" 

§  9.  Hearing  or  trial;  rehearing.  A.  In  general. — An  action  to  reform  a 
note  and  another  to  enforce  payment  thereon  should  be  tried  separately,  the  first 
having  prior  trial,^^  but  an  action  for  damages  and  for  restraint  of  continuance 
of  the  wrong  contains  one  cause  of  action,  and  a  motion  to  try  the  equitable 
issues  first  must  be  denied. ^^  Complainant  may  ordinarily  discontinue  at  any 
lime  before  defendant  is  entitled  to  a  decree.^^  Eehearing  may  be  granted  before 
decree,®*  but  not  afterward  except  for  grave  error  or  newly-discovered  evidence.^^ 

(§  9)  B.  Dismissal.^^ — A  bill  will  be  dismissed  where  jurisdictional  facts  are 
not  shown  on  the  hearing,®'^  or  if  the  bill  is  multifarious,"^  or  when  after  hearing  on 
l)ill  and  exhibits,  the  bill  does  not  show  a  proper  case  for  relief,®^  though  not  if 
equity  is  apparent  on  the  face  of  the  bill  though  a  demurrer  might  lie,^  or  if 
the  defect  may  be  cured  by  amendment.^  A  bill  by  creditors  to  set  aside  a  fraud- 
ulent attachment  should  be  dismissed  as  to  nonresident  defendants.^     If  the  plea 


87.  Suit  to  quiet  title — W.  H.  Taggart 
Mercantile  Co.   v.   Clack    (Ariz.)    71   Pac.    925. 

88.  Jordan  v.  Downs  (Ga.)  45  S.  B.  439. 

89.  Kammermeyer  v.  Hilz  (Wis.)  92  N. 
W.    1107. 

90.  Where  on  a  petition  for  enforcement 
of  a  mechanic's  lien,  issues  were  submitted 
to  a  jury  as  to  whether  notes  reported  by 
the  auditor  on  reference  of  the  account,  to 
have  been  given  by  one  of  the  defendants 
to  petitioners  were  received  and  accepted  in 
payment  of  the  claim,  the  issue  related 
only  to  the  original  receipt  of  the  notes 
and  did  not  determine  that  the  petitioners 
had  not  received  in  so  far  the  benefit  of 
the  notes  that  they  should  be  charged  against 
them,  so  that  the  refusal  of  the  court  to 
consider  the  whole  question  on  the  ground 
that  the  jury  had  determined  it  was  error — 
Moore  V.  Jacobs,   182  Mass.   482. 

91.  Tapley  v.  Herman.   95   Mo.   App.   537. 

92.  Stoner  v.  Mau   (Wyo.)    72  Pac.   193. 

93.  He  is  entitled  to  a  discontinuance  on 
payment  of  costs  where  the  case  has  not  pro- 
gressed so  as  to  entitle  defendant  to  decree 
and  no  other  party  has  intervened — Forrest 
v.  City  Council  of  Charleston  (S.  C.)  43  S. 
E.  952.  He  may  dismiss  his  bill  after  close 
of  the  evidence,  the  setting  of  the  cause  on 
the  calendar,  and  an  order  by  the  court  to 
stand  for  hearing  but  before  the  hearing, 
where  defendant  would  be  deprived  of  no 
substantial  right  accruing  after  commence- 
ment of  the  suit,  and  is  entitled  to  no  affirm- 
ative relief,  though  he  may  be  subjected  to 
a  subsequent  suit — Pennsylvania  Globe  Gas- 
light Co.  V.  Globe  Gaslight  Co..  121  Fed 
1015.  Complainant  in  a  suit  for  infringe- 
ment of  a  patent  may  not  discontinue  after 
the  taking  of  proofs  at  great  expense  to 
defendant,  merely  to  re-try  questions  in- 
volved in  a  new  suit — American  Steel  & 
Wire  Co.  v.  Mayer  &  Englund  Co.,  121  Fed. 
127. 

94.  Hellams   v.   Prior,    64    S.    C.    543. 

95.  It  cannot  be  had  after  decree  on  the 
merits  on  answer  filed,  unless  for  grounds 
sufficient  for  bill  of.  review  for  error  appar- 
ent on  its  face,  or  for  an  original  bill  to 
impeach  it  for  fraud,   or  because   of  newly- 


discovered  evidence — Snyder  v.  Middle  States 
Loan.  Bldg.  &  Const.  Co.,  52  W.  Va.  655. 
Where  an  amendment  to  a  petition  was  filed, 
to  conform  to  the  proof,  and  the  decree  was 
not  rendered  until  more  than  seven  montlis 
later,  and  no  attempt  was  made  by  defend- 
ant to  take  any  new  testimony,  the  decree 
will  not  be  set  aside  and  re-hearing  allowed 
for  the  introduction  of  further  evidence,  the 
character  of  which  is  not  shown.  Suit  to  re- 
move cloud  on  title — South  Chicago  Brewing 
Co.   V.   Taylor    (111.)    68  N.   E.   732. 

96.  Allowance  of  voluntary  dismissal  of 
bill  because  of  answer  showing  a  set-off 
growing  out  of  the  subject  matter  of  the 
bill  and  of  such  a  character  that  an  Inde- 
pendent action  thereon  would  be  barred  by 
limitation  at  the  tim£  the  bill  was  dismissed 
taut  not  when  filed — Ex  parte  Jones,  133  Ala. 
212. 

97.  Union  Light  &  Power  Co.  v.  Lichty, 
42  Or.   563,   71   Pac.   1044. 

98.  Day  v.  National  Mut.  Bldg.  &  Loan 
Ass'n   of  N.   T.    (W.   Va.)    44  S.  E.   779. 

99.  Bowie  V.  Smith  (Md.)  55  Atl.  625;  Wil- 
son V.  Derrwaldt.  100  111.  App.  396.  A  bill 
will  be  dismissed  where  the  record  shows 
no  justice  or  conscience  in  plaintiff's  claim 
— Anthes  v.  Schroeder  (Neb.)  92  N.  W.  196. 
A  decree  dismissing  a  creditor's  bill  as  to 
certain  defendants  is  proper,  where  It  ap- 
pears by  the  evidence  that  they  had  pur- 
chased property  of  the  debtor  in  good  faith 
and  paid  for  it  without  any  knowledge  of 
his  debts — Benedict  v.  T.  L.  V.  Land  &  Cat- 
tle Co.  (Neb.)   92  N.  W.  210. 

1.  West  V.  Louisville  &  N.  R.  Co.  (Ala.) 
34  So.  852. 

2.  But  dismissal  will  be  denied  where  th« 
bill  may  be  amended  by  striking  out  a  de- 
fective disjunctive  averment  (Taylor  v. 
Dwyer,  131  Ala.  91).  If  It  does  not  appear 
from  the  original  bill  that  it  can  be  amend- 
ed so  as  to  entitle  complainant  to  relief,  dis- 
missal for  want  of  equity  will  not  be  de- 
nied, nor  the  amendment  considered  as  made 
— Tait  V.  American  Freehold  Land  Mortj. 
Co.,  132  Ala.   193. 

3.  Adair  &  Co.  v.   Feder,   133  Ala.  620. 


§  9C 


HEARING  AND  EVIDENCE. 


1083 


is  sustained  by  the  proofs,  the  bill  must  be  dismissed.*  Dismissal  of  a  bill  by 
plaintiff  without  prejudice  is  in  the  discretion  of  the  court  to  be  allowed  in  con- 
sideration of  the  rights  of  both  parties.^  Dismissal  of  a  bill  cannot  accompany 
refusal  of  a  preliminary  injunction  where  defendant  has  not  demurred  to  the 
bill  nor  set  down  the  case  for  hearing  on  bill  and  answer  and  a  motion  for  pre- 
liminary injunction  was  the  only  matter  before  the  court.®  Where  a  defendant 
defaults  and  refuses  to  answer,  dismissal  of  the  bill  cannot  include  him  though 
proper  as  to  other  defendants.'^  Where  the  only  issue  on  a  bill  by  the  donor  of 
a  trust  to  compel  the  trustee  to  refund  on  death  of  the  beneficiary  was  plaintiif's 
right  to  the  funds,  the  court  cannot  pass  on  the  trustee's  account  on  dismissal, 
and  direct  him  to  retain  the  funds  for  a  certain  beneficiary.*  Failure  in  plead- 
ing and  proof  may  be  followed  by  dismissal  in  vacation  without  giving  an  oppor- 
tunity to  amend,®  but  a  cross  bill,  insufficient  for  failure  to  join  a  necessary  party 
defendant,  cannot  be  dismissed  on  sustaining  a  demurrer  without  an  opportunity 
to  amend  as  to  such  party.^°  After  the  superior  court  has  entered  a  final  de- 
cree granting  relief  prayed  for,  it  cannot  dismiss  the  bill  by  decree  at  a  subse- 
quent term.^^  Dismissal  of  a  bill  carries  the  cross  bill  made  up  of  an  answer 
alleging  a  set-off  not  purely  equitable  in  character,  and  insufficient  to  support  an 
original  bill;^^  but  will  not  affect  a  cross-bill  asking  affirmative  relief,  though  it 
carries  with  it  a  cross  bill  which  is  merely  defensive  in  its  character,^^  or  an 
amended  and  a  supplemental  bill  filed  with  the  original  bill  where  the  order  was 
without  reference  to  the  amended  pleading,  since  it  was  made  upon  a  defective 
record.^*  Dismissal  of  a  cross  bill  for  want  of  equity  must  be  determined  by  in- 
spection of  the  cross  bill  alone  in  its  relation  to  the  original  bill  assuming  its 
statements  to  be  true.*" 

(§9)  C.  Evidence  and  its  introduction}* — Failure  to  object  to  evidence  on  its 
introduction  will  not  prevent  objection  to  relevancy  on  the  final  hearing. ^^  A  rule 
allowing  three  months  for  taking  testimony  after  case  is  at  issue  means  three 
calendar  months  excluding  the  day  of  filing  the  replication.**  The  usual  equity 
practice  is  to  try  all  cases  on  depositions.*®  A  motion  to  reopen  the  cause  before 
the  master  and  allow  defendants  to  introduce  evidence  may  be  granted,  though, 
before  the  motion  was  made,  notice  was  given  that  a  change  of  venue  would  be 
asked.^**  Where  the  evidence  as  to  material  issues  is  conflicting,  the  court  in  its 
discretion  may  refuse  relief.-*     Fraud  need  not  be  proved  beyond  a  reasonable 


4.  Eveleth  v.  Southern  Cal.  R.  Co.,  123 
Fed.  836. 

5.  Ebner  v.  Zimmerly  (C.  C.  A.)  118  Fed. 
818. 

6.  Lyndall  v.  High  School  Committee.  19 
Pa.   Super.   Ct.    232. 

7.  Creditor's  suit — Benedict  v.  T.  L.  V. 
Land  &   Cattle  Co.    (Neb.)    92  N.   W.    210. 

8.  Scofleld  V.  Peck.  182  Mass.  121. 

9.  Westbrook  v.  Hayes    (Ala.)    34   So.   622. 
*•.     Price  V.  Stratton   (Fla.)   33  So.   644. 

11.  Ernst  Tosetti  Brewing  Co.  v.  Koehler, 
200    111.    369. 

12.  Ex  parte   Jones,   133   Ala.   212. 

IS.     Price  v.  Stratton   (Fla.)    33   So.   644. 

14.  In  the  appellate  court  of  Virginia, 
the  bill  and  amended  and  supplemental  bill 
together  constituted  one  record — Berliner 
Gramophone  Co.  v.  Seaman  (C.  C.  A.)  113 
Fed.  750. 

15.  Woodruff   V.    Adair,    131    Ala.    530. 

16.  Sufficiency  of  evidence  to  support  a 
decree  locating  a  boundary  line  (Killgore  v. 
Carmichael   [Or.]    72  Pac.   637)   In  suit  to  en- 


force equitable  lien  for  award  for  land  taken 
for  railroad  right  of  way  (Southern  R.  Co. 
V.  Gregg  [Va.]  43  S.  E.  570)  of  fraud  on 
the  part  of  ,a  national  bank  in  the  organ- 
ization and  operation  of  a  corporation  formed 
by  complainant  and  stockholders  and  offi- 
cers of  the  bank,  rendering  it  liable  to 
complainant  on  the  contracts  of  such  corpo- 
ration— Edward  P.  Allls  Co.  v.  Standard  Nat, 
Bank   (C.  C.  A.)   124  Fed.   55. 

17.  Suit  for  infringement  of  patent — 
Diamond  Drill  &  Mach.  Co.  v.  Kelly  Bros., 
120    Fed.    282. 

18.  Circuit  Court  Rule  No.  71 — Maxwell  v. 
Jacksonville  Loan  &  Imp.  Co.  (Fla.)  34  So 
255. 

19.  Dickerson  v.  Askew  (Miss.)  34  So. 
157.  The  taking  of  oral  proof  on  notice  in 
a  suit  to  foreclose  a  vendor's  lien  is  not 
authorized  by  Code  1892.  §   1764. 

20.  Brewster   v.   Cahill,   199   111.   309. 

21.  Blats  V.  Blats,  117  Ga.  165;  Hardy  v. 
Dyas,  203  111.  211.  Prayer  for  injunctive  re- 
lief— Leath    V.    Hinson,    117    Ga.    589.      A    de- 


1U84 


EQUITY. 


§  lOA 


doubt,  circumstantial  or  presumptive  evidence  being  sufficient."  Generally,  one 
asking  cancellation  of  an  instrument  for  fraud  must  prove  such  fraud,^*  but  if 
the  instrument  was  secured  by  one  in  a  fiduciary  relation,  the  burden  is  on  him 
to  show  it  free  from  fraud.-*  Where  the  case  has  been  submitted  for  final  decree 
on  the  register's  report  and  exceptions,  the  rules  of  chancery  practice  requiring 
the  making  of  a  note  of  testimony  offered  at  the  hearing  did  not  apply." 

Verdict  and  findings.— The  statute  relating  to  findings  of  fact  does  not  apply 
to  equitable  actions.-"  A  mere  opinion  expressed  by  a  judge  of  the  federal  cir- 
cuit court  on  a  question  of  fact  is  not  a  finding  of  facts  in  equity."  A  specia) 
finding  that  certain  ditches  intercepted  all  waters  flowing  into  a  certain  streani 
and  diverted  all  its  surface  and  subterranean  waters  is  not  in  conflict  with  a 
general  finding  that  there  had  been  no  actual  increase  to  the  stream  by  such 
ditclies.-*  A  verdict  in  a  suit  for  concellation  of  a  contract  and  deeds  thereunder 
is  sufficient  where  it  refers  to  the  description  in  the  deed  which  is  substantially 
the  same  as  that  in  the  petition  and  which  fully  identified  the  property. ^^ 

§  10.  Decree,  judgment,  or  order.  A.  In  general;  requisites  and  sufficiency.^'^ 
— A  decree  sustaining  a  demurrer  to  a  bill  is  not  defective,  though  it  does  not  state 
on  what  ground  it  is  sustained,  if  any  one  ground  is  well  taken.^^  Where  a  peti- 
tion contained  all  necessary  averments  of  a  bill  and  was  answered  by  defendant, 
and  the  issues  were  tried  by  the  court  on  evidence  given  the  court  having  juris- 
diction, its  order  and  judgment  amount  to  a  decree  in  equity  settling  the  ac- 
counts.^' It  is  immaterial  that  the  decree  was  not  drawn  or  spread  upon  the 
records  until  after  adjournment  for  the  term,  where  it  conforms  to  the  findings 
announced  orally  after  return  of  the  verdict  though  somewhat  more  extensive  in 
detail.^^ 

(§10)  B.  Effect  and  construction. — A  personal  decree  is  of  the  same  effect 
and  rests  on  the  same  basis  as  a  judgment  at  law.^*  Plaintiff  is  put  out  of  the  case 
by  a  decree  for  interpleader  and  the  cause  is  ended  by  a  decree  determining  the  rights 
of  various  defendants.^^  An  order  directing  a  final  decree  to  be  entered  in  accord 
with  the  verdict  is  not  conclusive  that  the  jury's  findings  were  adopted  without 
modification.^®  A  decree  requiring  defendant  to  do  certain  things  and  in  default 
thereof  directing  a  certain  judgment  to  be  rendered  against  him  is  none  the  less 
final  because  defendant  defaulted  and  judgment  required  was  then  rendered  f  but 


cree  will  not  be  disputed  unless  plainly 
wrong  where  the  evidence  relating  to  fraud, 
upon  which  it  is  founded,  is  conflicting — 
Sibley  v.   Stacey   (V^^  Va.)    44  S.   E.   420. 

22.     Knight    v.    Nease    (W.    Va.)    44    S.    E. 


Mortimer    v.    McMullen,    102    111.    App. 
Sheehan  v.  Erbe,  77  App.  Div.   (N.  Y.) 

McQueen 


414. 
23. 

593. 
24. 

176. 

25.     Rules   76.    77 — Whetstone 
(Ala.)    34   So.    229. 

2G.  White  Crest  Canning  Co.  v.  Sims,  30 
Wash.   374.  70  Pac.   1003. 

27.  Hendryx  v.  Perkins  (C.  C.  A.)  123 
Fed.    268. 

28.  Buckers  Irr.  Mill.  &  Imp.  Co.  v.  Farm- 
ers' Independent  Ditch  Co.  (Colo.)   72  Pac.  49. 

29.  American  Cotton  Co.  v.  Collier  (Tex. 
Civ.  App.)   69  S.  W.  1021. 

30.  Time  for  entry  of  final  decree  after 
amended  bill — Bank  of  Bramwell  v.  White 
(W.  Va.)  44  S.  E.  287.  Sufficiency  of  de- 
cree directing  a  sale  of  railroad  property 
In  foreclosure  as  determining  the  validity 
of    a    sub-contractor's    lien    under    an    issue 


raised  by  the  pleadings  though  such  issue 
had  not  been  tried  or  had  been  left  to  be 
determined  by  subsequent  reference  to  a 
master — Ferguson  Contracting  Co.  v.  Man- 
hattan Trust  Co.    (C.   C.  A.)    118  Fed.   791. 

31.  Adams  v.  Wilson   (Ala.)    34  So.   831. 

32.  For  allowance  of  claim  against  es- 
tate of  a  deceased  partner  filed  in  a  terri- 
torial court — Esterly  v.  Rua  (C.  C.  A.)  122 
Fed.    609. 

33.  Buckers  Irr.  Mill.  &  Imp.  Co.  v.  Farm- 
ers' Independent  Ditch  Co.  (Colo.)  72  Pac.  49. 

34.  Whalen  v.  Billings,  104  111.  App.  281. 
3.";.     Duke,  Lennon  &  Co.  v.  Duke  &  Woods, 

93    Mo.   App.    244. 

36.  Buckers  Irr.  Mill.  &  Imp.  Co.  v.  Farm- 
ers' Independent  Ditch  Co.   (Colo.)  72  Pac.  49. 

37.  Requiring  that  within  five  days  de- 
fendant in  a  suit  to  subject  certain  lands 
conveyed  to  him  to  judgments  held  by  the 
plaintiff  should  indorse,  assign  and  trans- 
fer a  promissory  note  to  the  clerk  of  the 
court  to  be  held  for  the  use  and  benefit  of 
plaintiff  until  further  order  and  in  default 
judgment  should  be  given  for  plaintiff  for 
the  face  value  of  the  note  with  interest  and 


§  IOC 


DECREE;  RELIEF. 


1085 


a  decree  settling  rights  of  claimants  to  a  fund,  and  directing  the  commissioner 
and  receiver  to  bring  in  all  funds  not  already  brought  in  and  report  them  to 
the  court,  is  not  a  final  decree.^^  Where  the  final  decree  entered  shows  that  the 
court  found  the  issues  in  favor  of  plaintiff,  an  inference  must  be  drawn  that 
the  court  found  those  facts  in  favor  of  him  which  were  responsive  to  the  issues 
and  necessary  to  the  decree  unless  the  special  findings  show  otherwise. ^^  Where 
defendant  in  a  suit  fails  to  claim  by  any  form  of  pleading  the  benefit  of  a  stat- 
ute constituting  a  defense  before  final  decree  is  entered  against  him,  he  is  barred 
thereafter  by  the  principle  of  res  judicata  from  setting  up  such  defense.*"  A 
decree  purporting  to  be  final,  and  in  effect  for  defendant  on  all  points  of  the  litiga- 
tion, cannot  retain  the  case  for  further  adjudication,  and  so  much  of  it  as  pro- 
vides for  further  jurisdiction  is  void.'*^  Only  the  consenting  parties  are  bound 
by  a  consent  decree;  and  an  order  entered  by  consent  of  all  parties  represented 
by  counsel  after  close  of  the  pleading  and  proofs  and  submission  for  final  adjudi' 
cation  is  binding  on  all  parties  appearing  at  time  of  the  entry.*'^ 

(§  10)  C.  Measure  of  relief. — No  decree,  even  pro  confesso,  can  be  rendered 
unless  on  a  proper  pleading  giving  adequate  facts,*^  and  the  decree  must  always  con- 
form to  the  allegations  and  prayer  of  the  pleadings.**     Discovery  cannot  be  had  on  a 


for    costs — Schneider    v.    Patton    (Mo.)    75    S. 
W.   155. 

38.  Gunnell's  Adm'rs  v.  Dixon's  Adm'rs 
(Va.)    43  S.  E.   340. 

39.  Buckers  Irr.  Mill.  &  Imp.  Co.  v.  Farm- 
ers' Independent  Ditch  Co.  (Colo.)  72  Pac.  49. 

40.  Defense  of  jury — Snyder  v.  Middle 
States  Loan,  Bldg.  &  Const.  Co.,  52  W.  Va. 
655. 

41.  City  of  St.  Louis  v.  Crow,  171  Mo. 
272.  In  creditors'  suit  against  the  defend- 
ant and  one  claimed  to  be  his  debtor  on  a 
mere  money  demand,  if  the  debt  is  denied 
by  the  alleged  debtor,  the  question  of  its 
existence  cannot  be  tried,  but  complainant 
may  obtain  a  discovery  from  such  alleged 
debtor  as  to  his  indebtedness,  and  the  right 
to  an  equitable  lien  to  become  effective  when 
the  debt  shall  be  established  In  an  ac- 
tion at  law,  and  may  also  have  a  receiver 
appointed  with  authority  to  bring  such  an 
action — Hudson   v.   "Wood,    119    Fed.    764. 

42.  Myllus  V.  Smith  (W.  Va.)   44  S.  E.  542. 

43.  Turner  v.  Stewart,  51  W.  Va.  493; 
City  of  Orlando  v.  Equitable  B.  &  L.  Ass'n 
(Fla.)  33  So.  986.  After  overruling  a  gen- 
eral demurrer  to  a  bill  which  contains  mat- 
ter proper  for  relief  and  other  improper  mat- 
ter, a  decree  giving  relief  justifiable  only  on 
the  Improper  matter  should  be  reversed — 
Turner  v.  Stewart,  51  W.  Va.  493.  On  a 
hearing  on  bill,  answer  and  replication  In  a 
suit  to  set  aside  a  conveyance  as  fraudu- 
lent, a  decree  adjudging  the  title  to  the 
land  In  controversy  to  be  in  defendants  and 
constituting  their  homestead  cannot  be  en- 
tered after  it  Is  shown  that  there  is  no 
equity  in  the  bill — Ropes  v.  Jenerson  (Fla.) 
34   So.   955. 

44.  Where  the  allegations  of  the  bill  are 
suflScient  to  support  a  decree,  it  will  stand 
though  giving  relief  not  specifically  prayed 
for,  where  there  is  a  general  prayer  for 
relief — Stewart  v.  Tennant,  52  W.  Va.  559. 
If  the  proof  and  allegations  of  a  bill  are  at 
variance,  complainant  cannot  have  a  decree 
conforming  to  either,  since  relief  must  be 
granted  on  the  case  made  by  the  bill — 
Baldwin  v.  Liverpool  &  London  &  Globe  Ins. 


Co.  (C.  C.  A.)  124  Fed.  206.  Complainant 
cannot  obtain  damages  in  a  suit  for  cancel- 
lation where  he  asked  no  legal  relief  though 
the  facts  show  him  to  be  entitled  to  It — 
Rubie  Combination  Gold  Min.  Co.  v.  Princess 
Alice  Gold  Min.  Co.  (Colo.)  71  Pac.  1121. 
Where  an  original  petition  asked  judgment 
for  the  balance  of  the  price  of  land  con- 
veyed, and  then  contained  a  general  pr.iyer 
for  all  proper  general  and  equitable  relief, 
cancellation  of  the  deed  may  be  had — Un- 
der Code  Civ.  Proc.  §  90 — Stephenson  v. 
Stephenson,  24  Ky.  L.  R.  1873,  72  S.  W.  742. 
While  a  party  may  have  any  relief  to  which 
he  shows  himself  entitled  under  a  general 
prayer,  it  must  be  consistent  with  and  found- 
ed on  the  allegations  of  his  bill  regardless 
of  the  evidence  produced — Schneider  v.  Pat- 
ton  (Mo.)  75  S.  W.  155.  A  personal  judg- 
ment against  a  defendant  In  a  suit  by  a 
judgmen*  creditor  to  subject  lands  of  de- 
fendap'  to  a  certain  jiidgment  Is  unauthor- 
ized where  the  petition  contains  no  allega- 
tions from  which  It  may  be  gathered  on 
what  account  a  personal  judgment  would 
be  asked — Schneider  v.  Patton  (Mo.)  75  S. 
W.  155.  Where  a  bill  for  foreclosure  of  a 
mortgage  sets  up  no  claim  for  attorney  fees 
or  alleges  that  such  fees  had  been  incurred 
by  complainant  and  shows  no  expense  In 
the  employment  of  an  attorney  and  contains 
no  prayer  for  such  allowance  and  the  note 
and  mortgage  contain  no  stipulation  for 
payment  of  such  fees,  they  cannot  be  allowed 
in  the  decree — Lyle  v.  Winn  (Fla.)  34  So. 
158.  Though  a  complaint  in  an  action  by 
one  to  quiet  title  to  lots  owned  in  severalty 
alleged  that  plaintiff  deraigned  title  through 
a  common  source  under  a  statute  providing 
that  several  persons  so  claiming  an  inter- 
est in  land  may  unite  In  an  action  to  de- 
termine an  adverse  claim,  yet  where  it  ap- 
pears that  each  owns  his  respective  lot,  a 
finding  that  they  deraigned  title  through  a 
common  source  Is  Immaterial  as  regards  an 
objection  that  no  evidence  has  been  given 
to  support  it,  where  the  question  of  mis- 
joinder was  not  raised  by  ansv.'er  or  de- 
murrer, and  the  questions  of  jurisdiction  and 


1086 


DECREE;  AMENDMENT;  VACATION. 


§  lOD 


bill  waiving  a  sworn  answer.*''  Affirmative  relief  can  only  be  granted  a  defend- 
ant on  a  cross  bill.*'  A  prayer  for  general  relief,  together  with  one  for  the  ap- 
pointment of  a  receiver  only,  will  not  be  considered  as  for  other  relief  than  ther 
appointment,  unless  the  petition  shows  a  cause  of  action  for  such  relief.*'^  T'he 
facts  as  they  exist  at  the  close  of  the  suit  must  determine  the  relief  given.** 
After  a  hearing  on  a  bill,  answer,  and  proofs,  and  the  filing  of  findings  of  fact 
and  conclusions  of  law,  a  final  decree  should  be  rendered  on  exceptions  filed,  and 
not  a  decree  merely  dismissing  the  exceptions.*®  Findings  which  may  prejudice 
an  action  at  law  cannot  be  incorporated  into  a  decree  dismissing  a  bill.®" 

(§  10)  D.  Modification  and  amendment;  vacation  and  setting  aside;  collateral 
attaclc. — The  statutory  abolition  of  the  writ  of  error  coram  nobis  in  favor  of  a  mo- 
tion authorizing  the  setting  aside  of  a  judgment  for  error  of  fact,  at  any  time 
within  five  years,  does  not  apply  to  decrees.®^  Where  an  order  for  appointment 
of  a  receiver  is  the  only  relief  sought,  it  will  be  vacated  for  want  of  authority  in 
the  court.®^  A  statute  authorizing  vacation  of  a  judgment  after  the  term  on 
certain  gTounds  does  not  apply  to  a  proceeding  in  equity  to  vacate  a  judgment.®^ 
An  interlocutory  decree  is  under  the  control  of  the  court  and  may  be  revised  on 
the  merits  until  entry  of  a  final  decree.''*  Mere  modification  will  not  destroy 
the  character  of  a  decree  as  final.''®  Wliere  questions  have  been  settled  by  final 
decree,  and  appeal  therefrom  has  been  refused,  they  cannot  be  reopened  in  the 
same  litigation;®®  but  an  order  for  a  decree  is  not  affected  by  the  rule  that  after 
entry  of  a  final  decree  the  court  has  no  further  power  to  deal  with  the  case  ex- 
cept on  bill  of  review,®'^  and  after  entry  of  a  decree,  it  may,  for  good  cause  shown, 
be  set  aside  or  modified  at  the  same  term  in  the  sound  discretion  of  the  court,''^ 
but  at  the  next  term  it  cannot  be  vacated®^  or  modified,  unless  for  ground  Buffi- 
cient  for  a  bill  of  review  for  error  apparent  in  the  decree,  or  for  newly-discovered 
evidence  or  for  an  original  bill  to  impeach  it  as  for  fraud  in  procurement.®" 
Laches  will  destroy  the  right  to  relief  from  a  decree.®*  An  infant  may  have  a 
decree  against  him  opened  by  original  bill  if  he  proceeds  diligently  after  major- 
ity.®^ A  decree  improperly  obtained  will  be  set  aside  though  the  party  against 
whose  property  it  runs  owes  the  person  in  whose  favor  it  is  rendered.®^  A  de- 
cree entered  in  a  case  in  which  a  certain  person  was  not  a  party  and  of  which 


the  sufficiency  of  the  complaint  as  stating 
a  cause  of  action  were  waived  because  not 
taken  by  demurrer  or  answer — Construing 
Civ.  Code  Proc.  §§  381.  434 — Dewey  v.  Par- 
ceUs,  137  Cal.  305.  70  Pac.  174. 

45.  Tillinghast  v.  Chace,  121  Fed.  435. 
Where  a  bill  contains  no  interrogatories 
and  answer  under  oath  is  expressly  waived, 
a  prayer  for  discovery  may  be  disregarded — 
Excelsior  Wooden  Pipe  Co.  v.  City  of  Seattle 
(C.   C.   A.)    117    Fed.    140. 

46.  Interstate  B.  &  L.  Ass'n  v.  Edgefield 
Hotel  Co.,  120  Fed.  422. 

47.  Mann  v.  German-American  Inv.  Co. 
(Neb.)    97   N.   W.    600. 

48.  The  rule  that  the  right  to  Judgment 
in  actions  of  law  always  depends  on  facts 
as  they  exist  when  the  action  is  commenced, 
does  not  apply  in  equity — Pennsylvania  Co. 
V.  Bond.   99   111.   App.    535. 

4».     Russell  V.  Stewart,   204  Pa.    211. 

50.  Suit  for  cancellation  of  a  note — Van- 
natta  v.  Lindley,  198  111.  40. 

61.  Ernst  Tosettl  Brew.  Co.  v.  Koehler, 
200    111.    369. 

52.  Mann  v.  German-American  Inv.  Co. 
(Neb.)    97   N.  W.   600. 


Baker  v.  Watts  (Va.)  44  S.  E.  929. 
White  V.  Gove  (Mass.)  67  N.  E.  359. 
Matthews  v.  Tyree   (W.  Va.)    44  S.  E. 


53.  Code,  §5  4091-4094 — Iowa  Sav.  &  Loan 
Ass'n  v.  Chase,  118  Iowa.  51. 

54.  Decree  finding  unfair  competition  and 
ordering  accounting — Fairbank  Co.  v.  Wind- 
sor  (C.  C.  A.)    124  Fed.   200. 

55.  Schneider  v.  Patton  (Mo.)  75  S.  W. 
155. 

5«. 
57. 
58. 
526. 

59.  Not  for  fraud  of  complainant's  so- 
licitor in  procuring  its  entry — Ernst  Toset- 
tl   Brew.    Co.    v.    Koehler,    200    111.    369. 

60.  Snyder  v.  Middle  States  Loan,  BIdg. 
&  Const.   Co.,    52  W.   Va.   655. 

61.  After  nine  years  a  bill  cannot  be  main- 
tained to  vacate  a  decree  for  fraud,  where 
complainant  knew  of  the  decree  during  all 
the  time  and  shows  no  excuse  for  delay — 
Hendryx  v.   Perkins   (C.  C.  A.)    114   Fed.    801. 

63.  Having  the  right  by  statute  to  show 
cause  against  the  decree,  he  may  do  so 
though  the  ground  is  error  apparent  on  the 
face  of  the  decree — Stewart  v.  Tennant  52 
W.   Va.    659. 

63.  Vanderpoel  v.  Knight,  102  111.  App 
596. 


§11 


BILL  OF  REVIEW. 


1087 


he  had  no  notice,  though  interested  in  the  subject-matter,  is  absolutely  void  ns 
to  him  and  may  be  attacked  collaterally.®*  Every  reasonable  intendment  is  in 
favor  of  the  decree.®^ 

Satisfaction,  lien,  and  enforcement. — A  decree  for  money  may  be  enforced  by 
the  same  remedies  as  a  judgment  at  law.^®  An  action  may  be  brought  to  enforce 
a  decree  rendered  in  a  foreign  state  awarding  costs  in  favor  of  plaintiffs;®^  but; 
not  on  a  decree  to  which  plaintiff  was  not  a  party,  where  it  had  been  superseded 
by  appeal  to  the  supreme  court  when  the  action  was  commenced,  and  the  decree  had 
been  reversed  and  the  suit  dismissed.'* 

§  11.  Bill  of  review. ^^ — A  bill  of  review  to  reverse  a  decree  is  barred  by  re- 
lease of  error  therein.''*'  A  bill  of  review  proper,  or  an  original  bill  in  the  nature 
of  a  bill  of  review,  must  always  be  brought  in  the  same  court  that  rendered  the 
decree  sought  to  be  reviewed ;  the  application  must  be  made  there  though  the 
supreme  court  has  subsequently  affirmed  the  decree,''^  and  leave  must  be  obtained 
from  the  court,  where  the  judgment  was  rendered  and  enrolled,  to  file  a  bill  of 
review  for  newly-discovered  matter,''^  or  a  supplemental  bill  in  the  nature  of  a 
bill  of  review,  but  notice  to  parties  before  giving  leave  is  in  the  discretion  of 
the  court.'^^ 

IHme  for  hill  and  laches. — A  bill  to  correct  a  final  decree  must  be  filed  witlnn 
a  year  after  entry,  and  ignorance  of  the  laws  of  a  state  will  not  excuse  a  foreign 
executor  for  failure  to  file  within  the  year.'^*  If  for  error  of  law  or  error  on  the 
face  of  the  record,  it  must  be  brought  within  the  statutory  period  for  taking  an 
appeal  from  the  decree,"  and  if  for  newly-discovered  matters,  within  a  reason- 
able time,^®  but  tlie  rule  does  not  apply  to  a  bill  to  set  aside  a  decree  for  accident, 
mistake,  or  surprise,  where  facts  sufficient  for  such  relief  are  alleged.''^  After 
nine  years,  a  bill  cannot  be  maintained  where  complainant  had  knowledge  of 
the  decree  during  all  the  time  and  the  delay  is  not  excused  by  sufficient  facts.''* 


64.  Holmes  v.  Columbia  Nat.  Bank  (Neb.) 
97    N.   W.    26. 

Ci.  Where  a  complaint  In  a  suit  to  set 
aside  a  decree  for  error  apparent  on  the 
record  averred  that  defendant's  answer  did 
not  aver  whether  such  answer  contained 
new  matter  so  as  to  show  whether  there 
was  in  fact  more  than  one  fund  in  contro- 
versy between  the  parties,  it  will  be  pre- 
sumed in  support  of  the  decree  that  there 
was  but  one  fund  and  that  the  question  of 
date  of  deposit  of  such  fund  as  set  forth 
in  the  decree  was  immaterial — Garbade  v. 
Frazier.   42  Or.   384,   71  Pac.   136. 

CC.  "Whalen  v.  Billings,  104  111.  App.  281. 
Decrees  may  be  enforced  by  a  writ  of  capias 
ad  satisfaciendum,  under  the  Illinois  stat- 
ute, in  any  case  where  such  writ  would  be 
proper  at  law  (Kurd's  Rev.  St.  c.  22,  §§  42, 
47) — Whalen  v.   Billings,  104   111.  App.    281. 

67.     Davis  v.  Cohn,   96  Mo.  App.   587. 

a«i.  Riley  Bros.  Co.  v.  Melia  (Neb.)  92  N. 
W.   913, 

«9.  Under  the  chancery  practice  in  Illi- 
nois there  are  four  ways  by  which  a  de- 
cree may  be  reviewed  for  alleged  error, 
viz.:  By  rehearing  in  the  court  that  heard 
the  case;  by  bill  of  review  In  the  court  of 
the  original  proceeding  and  decree;  by  ap- 
peal; and  by  writ  of  error — Mathlas  v.  Ma- 
thias.   104   111.    App.    344. 

TO.  Ferrell  v.  Ferrell  (W,  Va.)  44  S.  B. 
187. 

71.  The  superior  court  of  Cook  County, 
Illinois,  cannot  entertain  a  bill  to  review  a 
decree    entered    in    the   circuit    court    of   that 


county,  under  Const.  1870,  art.  6,  §  23,  which 
recognizes  two  courts  as  different  tribunals 
and  Rev.  St.  c.  37,  par.  27,  fixing  a  different 
time  for  holding  their  terms — Mathlas  v. 
Mathias,  202  111.  125.  Where  a  decree  has 
been  entered  on  the  mandate  of  the  appel- 
late court  leaving  no  question  to  be  deter- 
mined by  the  court  below,  the  former  court 
should  determine  the  sufficiency  of  reasons 
on  application  for  a  bill  of  review  though 
where  matters  material  occurring  in  the 
court  below  after  the  decision  of  the  cause 
are  concerned  or  other  sufficient  reasons  ap- 
pear, the  appellate  court  may  send  the 
whole  inquiry  or  part  thereof  to  the  lower 
court  for  settlement — Keith  v.  Alger  (C.  G 
A.)    124   Fed.    32. 

72.  Camp  Mfg.  Co.  v.  Parker.  121  Fed.  196, 

73.  Thompson  v.  Schenectady  R.  Co.,  119 
Fed.    C34. 

74.  Williams  V.  Starkweather  CR.  I.)  54 
Atl.   931. 

7.5.  Chamberlin  v.  Peoria,  etc.,  R.  Co.  (C. 
C.  A.)  118  Fed.  32;  Camp  Mfg.  Co.  v.  Parker, 
121    Fed.    195. 

76,  Camp  Mfg.  Co.  v.  Parker,  121  Fed. 
195.  After  a  decision  In  the  circuit  court 
of  appeals  In  North  Carolina,  a  bill  of  re- 
view filed  In  the  circuit  court  without  leave 
of  the  former  court  must  be  considered,  In 
determining  the  reasonableness  of  its  time 
of  filing,  as  filed  on  the  day  when  leave  to 
file  was  afterwards  granted  by  the  circuit 
court  of  appeals — Id. 

77.  Dewey  v,  Stratton  (C.  C.  A.)  114  Fed. 
179 


10S8 


EQUITY. 


g   11 


Grounds, — Matters  going  to  the  jurisdiction  are  not  ground  for  a  bill  of  re- 
view.'® A  bill  of  review  will  not  lie  for  error  of  law  not  apparent  on  the  face 
of  the  decree,*"  newly-discovered  evidence,  insufficient  to  warrant  a  reversal  of 
the  decree/^  or  which  could  by  ordinary  diligence  have  been  discovered  before 
the  decree;®^  and  accordingly  the  bill  on  that  ground  must  be  accompanied  by 
testimony  applicable  to  the  allegations  of  the  bill,  so  that  the  court  can  see  from 
examination  of  the  evidence  and  the  bill  that  the  result  would  be  different  on  a; 
retrial,®^  and  a  showing  of  diligence.**  Allowance  of  a  claim  against  a  decedent's 
estate  may  be  revised  where  persons  interested  appear  and  defend  and  set  up  the 
invalidity  of  the  claim  and  its  allowance  is  barred  by  limitations.*^  Where  a 
decree  sustaining  a  patent  is  entered  after  appeal,  discovery  by  defendant  of  other 
patents  raising  the  question  of  anticipation  will  not  justify  a  bill  of  review  unless 
some  uniisual  circumstance  appears.*^  Since  reversal  of  a  decree  by  a  bill  of 
review  cannot  affect  the  title  of  a  purchaser  under  the  decree,  a  bill  seeking  to 
set  aside  a  sale  of  land  under  a  decree  in  a  proceeding  for  collection  of  taxes  can- 
not give  the  relief  sought.*^  Persons  not  parties,  who  are  affected  by  a  decree, 
should  file  a  supplemental  bill  in  the  nature  of  a  bill  of  review  to  secure  a  modi- 
fication of  the  decree.** 

Application  and  proceedings.^^ — On  a  bill  of  review  in  the  federal  court  to 
set  aside  a  decree  for  newly-discovered  evidence,  diligence  as  well  as  the  material- 
ity of  the  evidence  must  be  considered.®"  Leave  by  the  federal  supreme  court, 
after  affirming  a  decree  of  the  circuit  court,  to  apply  to  the  latter  for  leave  to 
file  bill  of  review,  removes  the  bar  of  the  decree  of  the  circuit  court  leaving  the 
application  to  be  determined  by  that  court  on  its  merits  subject  to  appeal  to  the 
court  having  jurisdiction.®^  One  securing  dismissal  of  an  appeal  because  a  de- 
cree is  not  final  cannot  claim  afterwards,  on  application  for  a  bill  of  review,  that 
such  decree  was  final.®-  Where  a  bill  of  review  is  brought  on  a  decree  allowing 
a  credit  for  services  as  an  attorney  on  settlement  of  an  administrator's  accounts. 


78.  Hendryx  v.  Perkins  (C.  C.  A.)  114  Fed. 
801. 

79.  The  bill  will  not  lie  for  error  in  a 
decree  in  tax  proceedings  where  It  alleges 
as  the  main  ground  of  relief  that  the  chan- 
cellor had  no  jurisdiction — Donaldson  v. 
Nealis,  108  Tenn.  638. 

80.  Garbade  v.  Frazier,  42  Or.  384,  71  Pac. 
136. 

81.  Shaffer  v.  Shaffer,  51  W.  Va.  126.  It 
is  Insufficient  If  it  merely  shows  the  decree 
to  have  been  technically  wrong,  and  if  pre- 
sented on  the  hearing  would  have  produced 
a  different  decision,  but  it  must  also  appear 
that  complainant  therein  is  deprived  of  sub- 
stantial equity  by  the  decree  entered.  A 
decree  setting  aside  the  sale  of  lands  to 
plaintiff  and  giving  him  judgment  for  the 
purchase  money  paid  will  not  be  set  aside 
on  bill  of  review  because  of  newly  discov- 
ered evidence  tliat  plaintiff  had  made  a 
conveyance  of  the  lands  pending  the  suit, 
where  it  conclusively  appears  on  the  trial 
that  the  sale  was  secured  by  gross  fraud 
and  bribery  of  his  agent,  in  result  of  which 
he  was  compelled  to  pay  an  excessive  price 
for  the  lands,  and  defendants  have  suffered 
no  loss  of  equity  by  such  conveyance — 
Keith  V.  Alger  (C.  C.  A.)  124  Fed.  32.  A 
bill  cannot  be  maintained  for  newly  discov- 
ered matter  alleging  fraud  in  concealing 
from  complainant  the  actual  amount  in  a 
tract  of  land  where  it  appears  that  there 
was   correspondence   between   the   parties   as 


to  the  amount  of  such  land  before  the  first 
suit  and  the  opinion  therein  considered  that 
subject — Camp  Mfg.  Co.  v.  Parker.  121  Fed. 
195. 

82.  Baker  v.  Watts  (Va.)  44  S.  E.  929; 
Camp   Mfg.    Co.    v.   Parker,    121   Fed.   195. 

83.  Lewis    v.    Topsico,    201    111.    320. 

84.  If  brought  for  evidence  of  witnesses 
residing  in  the  same  vicinity  as  the  parties 
to  the  original  suit,  and  by  the  -same  attor- 
ney who  represented  defendants  in  the  orig- 
inal trial,  there  must  be  an  affidavit  or 
showing  of  diligence  to  obtain  such  facts  at 
the  trial,  and  an  allegation  of  fact  showing 
that  they  could  not  have  been  previously 
discovered — Lewis  v.  Topsico,  201  1)1.  320. 

85.  Taylor    v.    Crook,    136    Ala,    354. 

86.  Kissinger-Ison  Co.  v.  Bradford  Belt- 
ing Co.    (C.    C.    A.)    123    Fed.    91. 

87.  Donaldson  v.  Nealis,  108  Tenn.  63S. 

88.  Thompson  v.  Schenectadv  R.  Co.,  119 
Fed.   634. 

89.  A  bill  to  vacate  a  decree  for  fraud  in 
entry  alleging  that  an  agreement  was  col- 
lusively  entered  Into  by  certain  of  the  de- 
fendants to  have  a  trust  deed  set  aside,  held 
not  supported  by  evidence  of  a  single  fact 
showing  fraud — Minor  v.  Minor,   204  Pa.   199. 

90.  Kissinger-Ison  Co.  v.  Bradford  Belt- 
ing Co.   (C.  C.  A.)   123  Fed.  91. 

91.  Board  of  Councilmen  v.  Deposit  Bank 
(C.  C.  A.)    124  Fed.   18. 

92.  93.     Taylor  v.   Crook,   136   Ala.   354. 


ESCAPE;  ESCHEAT;  ESCROWS. 


10&9 


whether  the  evidence  supports  the  findings  of  fact  on  which  the  decree  is  founded 
cannot  be  considered,  but  only  whether  the  expenses  as  a  proper  legal  charge  under 
the  circumstances.^^ 

ESCAPE.i 

Tlie  offense. — An  arrest  from  which  an  escape  was  made  must  have  been  legal,^ 
and  it  is  not  an  aiding  of  one  detained  on  an  "accusation"  if  he  has  been  convicted.^ 
Jntcnt  of  a  jailer  is  no  part  of  "negligence"  in  permitting  an  escape/  otherwise 
if  "misfeasance,  malfeasance,  or  willful  neglect"  be  laid,^  and  an  "ignorant"  act 
may  fall  without  either  word.* 

Indictment  and  trial. — The  crime  for  which  imprisonment  was  adjudged  may 
be  alleged  generally  if  the  legality  of  detention  be  well  pleaded.'^  Aiding  an  "in- 
tent to  escape"  is  averred  by  the  words  "attempt  to  escape"  which  presuppose  "in- 
tent."* A  statute  requiring  an  accused  officer  to  show  diligence  to  prevent  an 
escape  is  satisfied  by  his  showing  that  he  hid  the  prisoner  in  a  wood  to  foil  lynch- 
ers who  however  effected  a  capture.' 

ESCHEAT. 

Escheat  from  alienage  results  on  the  death  as  an  alien  of  one  to  whom  the 
state  had  released  a  former  escheat.^"  The  state  may  release  an  escheat  though 
the  indirect  result  is  to  withdraw  the  estate  from  the  statutes  against  perpetuities.^^ 
Statutes  permitting  aliens  to  take  by  succession  to  deceased  aliens  require  the  claim- 
ant to  prove  his  right.^^  The  state  may,  after  they  have  acquired  title  to  land,  repeal 
laws  respecting  the  inheritable  capacity  of  aliens  ;^^  and  when  statutes  giving  such 
rights  are  amended  and  restricted  to  certain  aliens,  the  lands  of  all  other  aliens 
again  become  liable  to  escheat.^*  Unclaimed  money  when  it  passes  into  a  mere 
debt  does  not  escheat  as  money.*' 

No  proceedings  are  necessary  to  escheat  a  nonresident  alien 's  lands,^®  but  when 
proceedings  are  required,  they  must  be  within  statutory  limitations  of  time.*'  Eees 
of  officers  in  such  proceedings  must  be  claimed  below.** 

ESCBOWS. 

A  conditional  delivery  to  a  party  to  the  contract  does  not  create  an  escrow,^' 
nor,  strictly  speaking,  does  a  deposit  of  deeds  with  a  third  person  with  instruc- 


1.  Escape  or  attempts  to  do  so  may  fur- 
nish inculpatory  evidence  against  one  char- 
ged with  other  crimes,  but  the  forbearance 
of  a  prisoner  to  escape  though  he  might 
has  not  a  converse  effect.  See  Indictment 
and   Prosecution    (Criminal  Evidence). 

2.  People  V.  Hochstim,  76  App.  Dlv.  (N. 
Y.)    25. 

3.  Pen.  Code.  art.  229 — Brannan  v.  State 
(Tex.  Cr.  App.)   72  S.  W.  184. 

4.  Ky.  St.  §  1339 — Lynch  v.  Com.,  24  Ky. 
L.    R.    2180.    73    S.    W.    745. 

5.  C.  Ky.  St.  §  3748 — Lynch  V.  Com.,  24 
Ky.  L.   R.   2180,  73  S.  W.  745. 

7,8.     State  v.  Daly,  41  Or.  515,  70  Pac.  706. 

9.  Direction  of  verdict  of  guilty  held 
error— State  v.  Blackley,  131  N.  C.  726.  Evi- 
dence held  to  call  for  Instruction  on  "ig- 
norance" of  a  jailer  suffering  an  escape — 
Lynch  v.  Com.,  24  Ky.  L.  R.  2180,  73  S.  W. 
745. 

10,  11.     Richardson    v.    Amsdon,    85    N.    Y. 

Supp.    342. 

Cnrr.  Law. — 69. 


12.  Hence  that  the  alleged  deceased  alien 
was  In  fact  such — Richardson  v.  Amsdon,  85 
N.  Y.   Supp.   342.     Evidence  considered — Id. 

13.  The  privilege  of  inheritance  is  an  ex- 
pectancy and  not  vested — Donaldson  v.  State 
(Ind.)    67  N.  E.   1029. 

14.  The  common  law  is  revived — Donald- 
son V.  State  (Ind.)  67  N.  E.  1029.  The  sev- 
eral statutes  construed — Id. 

15.  Union  Trust  Co.  v.  Glover  (Mo.  App.) 
74   S.   W.    436. 

16.  Richardson  v.  Amsdon,  85  N.  Y.  Supp. 
342. 

17, 18.  40  years  after  death  of  a  legatee 
who  died  before  testator  who  vi^as  last  seized 
is  too  late  (Act  May  20,  1889) — In  re  Bous- 
quet's   Estate,    206    Pa.    534. 

19.  Delivery  by  tenant  of  lease  and  rent 
notes  to  an  agent  of  the  landlord,  accom- 
panied by  a  condition,  that  in  case  a  pro- 
posed sale  of  the  land  to  the  tenant  was  con- 
summated they  were  to  be  returned — Bemis 
V.  Allen   (Iowa)    93  N.  W.   50. 


1090 


ESTATES  OF  DECEDENTS. 


§   1 


tions  that  they  be  delivered  to  the  grantee  on  his  coining  into  being  or  of  age  or  on 
the  grantor's  death.^° 

The  escrow  is  irrevocable  after  performance  of  the  condition  by  the  other  party. 
Prior  to  such  time  it  may  be  revoked  if  not  on  an  independent  consideration.-^ 

Where  the  language  of  the  condition  is  ambiguous,  the  surrounding  circum- 
stances and  conditions  may  be  considered  in  determining  the  intent  of  the  par- 
ties.^^  If  the  condition  is  never  fulfilled,  the  deed  is  not  operative/^  though  de- 
livered/* and  delivery  cannot  be  demanded." 

ESTATES    OF    DECEDENTS. 


S  1.  Necessity  or  Occasion  tor  Adminis- 
tration  and   the   Kinds   Thereof. 

§  2.  Jurisdictions  and  Courts  Controlling 
Administration. 

§  3.  The  Persons  Who  Administer  and 
Their  Letters.  A.  Selection  and  Nomina- 
tion. B.  Procedure  to  Obtain  Administra- 
tion and  Grant  of  Letters.  C.  Security  or 
Bond.     D.  Removals. 

§  4.  The  Authority,  Title,  Interest  and 
Relationship  of  Personal  Representatives. 
A.  In  General.  B.  Contracts,  Charges,  and 
Investments.  C.  Title,  Interest,  or  Right  in 
Decedents'  Property. 

§  5.  The  Property;  Its  Collection,  Man- 
agement and  Disposal  by  Personal  Rrepre- 
sentatives.  A.  Assets.  B.  Collection  and 
Reduction  to  Possession.  C.  Inventory  and 
Appraisal.  D.  Property  Allowed  Widow  or 
Children.  Quarantine.  E.  Management, 

Custody.    Control   and   Disposition    of   Estate. 

§  6.  Debts  and  Liabilities  of  Estate;  Their 
Establishment  and  Satisfaction.  A.  Liabil- 
ity of  Estate.  B.  Liability  of  Heirs,  Devi- 
sees and  Legatees.  C.  Exhibition,  Estab- 
lishment, Allowance  and  Enforcem.ent  of 
Claims.  D.  Classification,  Preferences  and 
Priorities.  E.  Funds,  Assets  and  Securities 
for   Payment.     F.  Payment   and   Satisfaction. 

§  7.     Subjection   of   Realty  to   Payment    of 


Debts  under  Order  of  Court.  A.  Right  to 
Resort  to  Realty.  B.  Procedure  to  Obtain 
Order.     C.  The  Order.     D.  The  Sale. 

§  8.  Rights  and  Liabilities  betTveen  Rep- 
resentatives and  Estate.  A.  Management  of. 
and  Dealings  with  the  Estate.  B.  Repre- 
sentative as  Creditor  or  Debtor.  C  Inter- 
est on  Property  or  Funds.  D.  Allowances 
for  Expenses,  Costs,  Counsel  Fees  and  Fu- 
neral Expenses.  E.  Rights  and  Liabilities  of 
Co-representatives  and  Successors.  F.  Com- 
pensation. G.  Rights  and  Liabilities  of 
Sureties  and  Actions   on  Bonds. 

§  9.  Actions  by  and  against  Representa- 
tives,  and   Costs   therein. 

§  10.  Accounting  and  Settlement  by  Rep- 
resentatives. A.  Who  may  Require.  B. 
Procedure.     C.  The  Decree   or  Order. 

§  11.  Distribution  and  Disposal  of  Funds; 
Time  for  Distribution. 

§  12.  Enforcement  of  Orders  and  Decrees 
by  Attachment  as  for  a  Contempt. 

§  13.  Discharge  of  Personal  Representa- 
tives. 

§  14.  Rights  and  Liabilities  between  Ben- 
eficiaries of  Estate.  A.  In  General.  B.  Ad- 
vancements. C.  Actions  between  Benefi- 
ciaries. 

§  15.  Rights  and  Liabilities  betTveen  Ben- 
eficiaries  and  Third   Persons. 


§  1.     Necessity  or  occasion  for  administration  and  the  I'inds  thereof. — Admin- 
istration by  personal  representatives  must  be  had  to  confer  jurisdiction  on  courts 


20.  Grantor's  death.  Deeds  intended  as 
advancements  to  grand-children,  delivered  by 
a  grand-father  to  his  daughter,  are  held  by 
her  as  bailee — McKnight  v.  Reed  (Tex.  Civ. 
App.)  71  S.  W.  318.  Such  a  delivery  is  suffi- 
cient however  to  pass  title  if  with  intent 
to  relinquish  furher  control — McKnight  v. 
Reed  (Tex.  Civ.  App.)  71  S.  W.  318;  Schreck- 
hise  v.  Wiseman  (Va.)  45  S.  E.  745;  Tarlton  v. 
Griggs,  131  N.  C.  216;  Seifert  v.  Seifert  (Kan.) 
71  Pac.  271.  Deposit  to  be  delivered  at  gran- 
tor's death  sufficient  though  depositary  would 
have  returned  them  to  the  grantor  and  did 
deliver  one  deed  to  the  grantee  before  the 
grantor's  death  at  his  request — White  v. 
Watts,  118  Iowa,  549.  Sufficient  that  deeds 
to  be  delivered  to  grantees  at  grantor's  death 
are  left  with  grantee's  representative,  and 
grantor  relinquishes  all  control  and  right 
to  alter  disposition  of  property — Bogan  v. 
Swearingen,  199  111.  454.  Delivery  to  a  third 
person  with  intent  to  retain  the  right  to 
recall  It  until  the  grantor's  death,  as  evi- 
denced by  advertising  the  property  for  sale 
is  not  sufficient  to  allow  title  to  pass  to  the 
grantee  on  delivery  to  him  after  the  gran- 
tor's   death — Johnson    v.    Johnson.    24    R.    I. 


571.  Deposit  of  the  deed  to  be  delivered 
after  the  grantor's  death  does  not  waive 
consideration  expressed  to  be  care  of  gran- 
tor by  grantees,  his  children,  until  his  death 
— Culy  V.  Upham  (Mich.)  97  N.  W.  405. 
Grantee's  existence  or  maturity.  A  deed 
delivered  to  a  person  to  be  delivered  to  the 
grantee  on  its  coming  into  being  does  not 
pass  title  until  the  final  delivery  as  deed 
delivered  to  promoters  of  a  grantee  cor- 
poration to  be  delivered  to  the  corpora- 
tion ■v\"hen  completely  organized — Santaquin 
Min.  Co.  V.  High  Roller  Min.  Co.,  25  Utah. 
282,  71  Pac.  77.  Otherwise  where  conditioned 
on  grantee  coming  of  age.  Delivery  to  be 
kept  until  grantee  came  of  age  without  res- 
ervation of  control  is  sufficient — ^Marshall  v. 
Hartzfelt,  98  Mo.  App.  178.  See  Deeds  of 
Conveyance  for  effect  of  postponing  opera- 
tion till  grantor's  death  as  determining  char- 
acter of  instrument  as  testamentary  or  oth- 
erwise. 

21.  Evidence  held  to  show  compliance  by 
creditors  with  an  agreement  by  which  con- 
veyance of  property  was  to  be  deposited  In 
escrow  in  settlement  of  firm  debts  to  be  de- 
livered   in    case    the    creditors    surrendered 


§1 


OCCASION  FOR  LETTERS. 


1091 


over  estates  of  decedents,^®  though  it  is  not  absolutely  necessary  to  probate  the 
estates  of  all  decedents/^  as  where  there  are  no  debts  against  decedent,^^  since  in 
such  case  the  heirs  may  distribute  the  estate  between  themselves,^^  but  only  the 
parties  who  sign  the  agreement  to  distribute  without  administration  are  bound 
thereby.^"  Administration  may  be  had  on  the  estate  of  one  presumed  to  be 
dead  from  a  continued  absence  for  a  specified  time.^^ 

In  some  states,  the  time  in  which  administration  can  be  had  has  been  fixed 
by  statute/-  which  has  been  held  to  apply  to  administration  de  bonis  non  as  well 
as  to  principal  administration.^^ 

Ancillary  administration  may  be  had  on  property  brought  into  the  state  in 
good  faith  and  in  the  ordinary  course  of  business  after  the  death  of  a  nonresident 
decedent,^*  but  not  where  it  is  in  the  possession  of  the  domiciliary  appointee  tem- 
porarily within  the  state.^" 

Administration  de  bonis  non  can  be  had  only  where  a  vacancy  occurs  in  the 
principal  administration  with  assets  unadministered/^  as  by  the  death  of  the  prin- 
cipal representative^^  or  his  discharge  after  final  settlement  of  his  accounts,^^ 
Appointment  and  qualification  as  administrator  de  bonis  non  operates  as  a  re- 
linquishment of  original  letters  to  the  same  appointee.^^     However,  an  appoint- 


thelr  evidences  of  Indebtedness — Mechanics' 
Nat.  Bank  v.  Jones,  76  App.  Div.  (N.  Y.) 
534.  Deeds  deposited  to  be  delivered  at  the 
grantor's  death  may  be  withdrawn  by  him 
If  such  is  the  intent  at  the  time  of  de- 
posit. Evidence  held  to  justify  such  with- 
drawal over  tlie  objection  of  the  grantees, 
sons  of  the  grantor  who  claimed  that  the 
deeds  were  executed  in  consideration  of  their 
leasing  the  land  until  the  father's  death — 
Everts  V.  Everts    (Iowa)    94   N.  W.  496. 

22.  Construction  of  condition  for  de- 
livery of  stock  in  mining  corporation  on  de- 
termination of  ownership  of  property  sold 
the  corporation  in  return  for  the  stock — 
Clarke  v.  Eureka  County  Bank,  123  Fed.  922. 

23.  Deed  of  re-conveyance  placed  In  es- 
crow by  a  grantee  in  an  absolute  convey- 
ance to  secure  a  debt  conditioned  for  de- 
livery on  payment  of  the  debt — Fitch  v. 
Miller,    200   111.    170. 

24.  Passes  no  title  to  grantee  or  bona 
fide  purchaser  from  him,  as  against  grantor 
— Mays  V.   Shields    (Ga.)    45   S.   E.   68. 

25.  Stock  delivered  In  escrow  to  be  held 
until  a  question  of  ownership  Is  determined 
cannot  be  demanded  before  such  determina- 
tion— Clarke'  v.  Eureka  County  Bank,  123 
Fed.  922. 

26.  An  action  cannot  be  maintained  to 
recover  a  legacy  against  the  representative 
of  a  deceased  co-legatee  who  took  the  estate 
without  administration — Mitchell  v.  Mitch- 
ell,   132    N.    C.    350. 

27.  Gwinn  v.  Melvin  (Idaho)  72  Pac.  961. 
Under  Laws  S.  D.  1901,  p.  201,  c.  123.  §  2 
the  county  court  can  take  possession  and 
apply  assets  of  certain  intestates  without 
the  appointment  of  an  administrator — Smith 
V.  Terry  Peak  Miners'  Union  (S.  D.)  94  N. 
W.    694. 

28.  Waterhouse  v.  Churchill,  30  Colo.  415, 
1Q  Pac.  678.  Administration  Is  necessary 
upon  the  estate  of  a  married  woman  to  pro- 
tect creditors — McCarthy  v.  McCarthy,  20 
App.  D.  C.  195. 

20.  Waterhouse  v.  Churchill,  30  Colo.  415, 
70  Pac.  678;  Gwinn  v.  Melvin  (Idaho)  72  Pac. 
961.      A    complaint   In    an   action    to    recover 


a  chose  In  action  allowed  to  one  of  the  dis- 
tributees setting  out  such  a  division  held 
sufficient — Granger  v.  Harriman  (Minn.)  94 
N.  W.  869.  Equitable  relief,  where  by  a  mis- 
take the  interests  of  the  heirs  of  an  Intes- 
tate were  ignored  in  a  settlement  without 
administration — Hutchison  v.  Fuller  (S.  C.) 
45   S.   E.    164. 

30.  Dauel  v.   Arnold,    201   111.    570. 

31.  Under  Burns'  Rev.  St.  1901,  §  2385, 
etc.,  relating  to  the  administration  of  the 
estates  of  absentees.  An  administration  un- 
der this  statute  will  not  be  affected  by  the 
fact  that  the  absentee  Is  still  alive — Romy 
V.   State    (Ind.  App.)    67   N.   E.    998. 

32.  An  application  is  barred  after  a  lapse 
of  four  years  under  Rev.  St.  1887,  §  4060; 
^uch  a  proceeding  being  an  action  within 
!§  4020  &  4080 — Gwinn  v.  Melvin  (Idaho)  72 
Pac.  961.  After  such  time  has  elapsed  a 
stranger  cannot  by  procuring  letters  sub- 
ject realty  to  the  payment  of  his  claim — 
:;ummings  v.   Lynn   (Iowa)    96  N.  "W.   857. 

33.  Act  March  15,  1832 — In  re  Hanbest's 
Estate,    21    Pa.   Super.   Ct.    427. 

34.  If  brought  in  for  the  purpose  of  se- 
curing a  resident  plaintiff  to  prosecute  an 
iction  for  negligence  the  appointment  will 
not  be  made — Hoes  v.  New  York,  etc.,  R.  Co. 
173  N.   Y.   435. 

35.  In  re  McCabe,  84  App.  Div.  (N.  Y.) 
145. 

36.  Ala.  Code,  5  HI — Sands  v.  Hickey 
(Ala.)  33  So.  827.  The  executor  of  the  de- 
ceased executor  does  not  become  the  rep- 
resentative of  the  estate  in  trust  by  opera- 
tion of  law — Jepson  v.  Martin,  116  Ga.  772. 
Where  the  residuary  legatee  failed  to  pay 
a  specific  legacy,  but  had  procured  a  dis- 
charge from  the  probate  court  without  no- 
tice to  the  legatee,  an  administrator  de  bonis 
non  may  be  appointed  under  Comp.  Laws, 
§   9334 — Cole  v.    Shaw    (Mich.)    96   N.   W.   573. 

37.  Cushman  v.  Albee.  183  Mass.  108.  In 
Alabama  the  power  of  the  husband  as  ad- 
ministrator in  right  of  marriage  ceases  with 
the  wife's  death — Sands  v.  Hickey  (Ala.)  33 
So.    827. 

38,39.     Henley  v.  Johnston,  134  Ala.  646. 


1092 


ESTATES   OF  DECEDENTS. 


§   2 


ment  before  a  vacancy  actually  occurs  has  only  the  effect  of  an  excess  of  power 
and  is  not  void  in  toto.*° 

§  2.  Jurisdictions  and  courts  controlling  administration. — Eesidence  and 
situs  of  property  govern  the  jurisdiction  of  the  probate  courts  of  particular  coun- 
ties to  administer,*^  though  the  existence  of  assets  is  not  essential  to  confer  juris- 
diction to  appoint  an  administrator.*-  In  case  of  nonresident  decedents  admin- 
istration can  be  had  only  where  assets  are  within  the  state,*^  though  under  the 
statutes  of  Utah  this  is  held  not  to  be  the  rule.**  Where  assets  within  the  juris- 
diction are  essential,  it  has  been  held  that  it  is  sufficient  if  they  were  brought 
within  the  state  in  good  faith  after  the  death  of  decedent,*^  but  not  if  brought 
in  by  the  domiciliary  representative  for  temporary  purposes;"  nor  is  a  recog- 
nizance bond  property  within  the  state.*^ 

While  the  court  having  power  to  appoint  personal  representatives  has  juris- 
diction to  determine  disputed  jurisdictional  facts**  the  mere  fact  that  the  court 
granted  administration  is  not  conclusive  evidence  of  jurisdiction.*^ 

§  3.  The  persons  who  administer  and  their  letters.  A.  Selection  and  nom- 
ination.— It  is  not  essential  that  the  applicant  be  a  resident  of  the  state.^°  A 
divorced  wife  cannot  administer  the  estate  of  her  deceased  former  husband.^^  The 
trustee  in  bankruptcy  of  an  heir  entitled  to  share  may  be  appointed,^^  and  the 
public  administrator  will  be  preferred  to  a  relative  not  entitled  to  share  in  the 
estate.^^  A  person  who  is  prosecuting  a  pending  action  against  an  estate  is  not 
a  proper  person.^*  Objections  to  the  disposition  of  the  appointee  executor  and 
his  moral  character  are  not  necessarily  sufficient  to  withhold  letters  of  adminis- 
tration.°^ 

Laches  in  applying  for  appointment  by  the  person  entitled  thereto  is  a  waiver 
of  his  preference,^"  and  an  agreement  on  consideration  of  the  relinquishment  of 
the  right  to  administer  is  void  as  against  public  policy." 

(§3)  B.  Procedure  to  obtain  administration  and  grant  of  letters. — An  un- 
verified petition  unsupported  by  evidence  is  insufficient  on  which  to  base  the  ap- 
plication.''* 

The  subsequent  discovery  of  a  will  merely  renders  the  appointment  of  an  ad- 
ministrator as  in  case  of  intestacy  voidable." 


4».     Sands  v.  Hlckey  (Ala.)   33  So.  827. 

41.  Ewing  V.  MaUison.  65  Kan.  484,  70 
Pac.  369.  The  statute  relating  to  the  admin- 
istration on  the  estates  of  absentees  con- 
fers jurisdiction  on  the  county  wherein  the 
property  of  the  absentees  is  situated  irre- 
spective of  their  last  residence — Romy  v. 
State    (Ind.   App.)    67   N.   E.    998. 

42.  Holburn  v.  Pfanmiller"s  Adm'r,  24  Ky. 
L.  R.   1613,   71  S.  "W.  940. 

43.  Wright  V.   Roberts,   116   Ga.   194. 

44.  Rev.  St.  1898,  §  3774 — In  re  Tasanen's 
Estate.  25  Utah,  396,  71  Pac.  984. 

45.  Hoes    V.   New   York.    etc..    R.    Co.,    173 
435. 
In    re   McCabe,    84   App.    Div.    (N.   T.) 


N.  Y 
46. 

145. 
47. 

48 


Filer   v.    Rainey,    120    Fed.    718. 

The  surrogate  In  New  Jersey  may 
determine  the  residence  of  decedent  when 
residence  is  contested — In  re  Russell's  Es- 
tate,  64  N.  J.   Eq.   313. 

49.  Ewing    V.    Mallison,    65    Kan.    484,    70 
Pac.    369. 

50.  Foley  v.   Cudahy   Packing   Co.    (Iowa) 
93  N.  W.    284. 

51.  In    re    Swales'    Estate.    172    N.    T.    651. 
She  cannot  set  up  the  invalidity  of  the  de- 


cree which  she  obtained  In  a  foreign  state, 
(In  re  Swales'  Estate.  172  N.  Y.  651)  but 
she  is  not  barred  of  her  right  to  admin- 
ister by  a  foreign  decree  in  favor  of  the  de- 
ceased obtained  on  the  same  grounds  for 
which  she  obtained  a  prior  decree  of  sep- 
aration in  the  state  of  the  application  for 
administration.  Her  decree  barred  action 
in  the  foreign  state  based  on  the  same  cause 
— In  re  Heins'  Estate,   22  Pa.  Super.  Ct.  31. 

52.  Mich.  Comp.  Laws  1897,  §  9324 — Os- 
mun  V.  Galbraith    (Mich.)    92  N.  W.  101. 

53.  So  held  where  decedent  left  a  surviv- 
ing non-resident  parent,  under  Code  Civ. 
Proc.  N.  Y.  §  6669 — In  re  Gilchrist's  Estate. 
79   App.    Div.    (N.   Y.)    637. 

54.  Cogswell  V.  Hall   (Mass.)    67  N.  E.  638. 

55.  Saxe  v.  Saxe   (Wis.)   97  N.  "W.  187. 

56.  A  delay  of  nearly  three  years  by  the 
husband  after  the  death  of  his  Trife,  to  ap- 
ply, and  then  merely  appearing  in  an  ob- 
jection to  an  application  by  another,  is  a 
waiver — In  re  Sutton's  Estate,  31  Wash.  340, 
71    Pac.    1012. 

.57.  In  re  Lewis'  Estate,  21  Pa.  Super.  Ct. 
393. 

58.  In  re  Pina's  Estate,  138  Cal.  XIX.  71 
Pac.   171. 


§  3D 


WHO  ADMINISTERS;   REMOVALS. 


1093 


The  grant  of  letters  is  conclusive  until  revoked  in  a  direct  proceeding  or  an 
appeaP°  as  to  the  competency  of  the  appointee"^  or  the  existence  of  a  vacancy  in 
the  principal  administration  at  the  time  of  the  appointment  de  bonis  non;^^  gj^fi 
while  it  may  be  collaterally  attacked  for  want  of  jurisdiction®^  or  fraud®*  yet 
all  presumptions  are  in  favor  of  jurisdiction.®^^ 

The  effect  of  an  appeal  from  an  appointment  of  an  administrator  is  to  oust 
the  jurisdiction  of  the  appointing  court  in  the  proceeding.®® 

(§3)  C.  Security  or  bond. — An  executor  is  entitled  to  notice  of  an  applica- 
tion to  compel  him  to  give  bond.®''  If  he  is  also  residuary  legatee  he  should 
not  be  required  to  give  security  to  return  an  inventory.®*  In  a  proceeding  by 
the  sureties  to  be  released  if  the  administrator  files  an  account  and  a  new  bond 
the  order  may  be  entered  without  further  citation  to  the  persons  interested  in 
the  estate,  the  account  not  being  objected  to  by  the  surety.®®  A  representative's 
bond,  though  not  in  statutory  form  may  be  held  valid  as  a  common-law  bond.''® 

(§3)  D.  Removals. — Generally,  the  power  of  removal  is  discretionary.''^ 
Misconduct  in  office  or  jeopardy  of  the  estate  are  grounds  for  removal,''^  but  mere 
accident  in  delaying  to  file  an  inventory  within  the  proper  time,'^  or  a  temporary 
residence  without  the  state,''*  is  not;  nor  will  the  representative  be  removed  where 
it  would  affect  the  estate  adversely,"  and  instead  of  revoking  letters  testamentary, 
the  executor  may  be  required  to  give  bond.''® 

The  court  is  not  required  to  suspend  the  powers  of  a  representative  pending 
proceedings  for  his  removal,''  and  an  appointment  of  an  administrator  pendente 


59.  Under  Code  Ala.  5  113 — Sands  v.  Hlckey 
(Ala.)    33    So.    827. 

60.  The  probate  court  of  one  county  can- 
not while  an  appointment  in  another  county 
is  in  force  appoint  an  administrator — In  re 
Davison's  Estate  (Mo.  App.)  73  S.  W.  373. 
While  a  decree  granting  letters  of  admin- 
istration to  an  executor  stands,  the  probate 
court  has  no  power  to  grant  letters  to  a  co- 
executor — Cogswell  V.  Hall  (Mass.)  67  N.  E. 
-638. 

61.  Larson  v.  Union  Pac.  R.  Co.  (Neb.)  97 
N.  "W.  313.  It  will  be  presumed  that  the 
appointing  court  had  before  it  the  written 
request  of  the  persons  entitled  to  an  ad- 
ministrator that  the  public  administrator  be 
appointed — McCooey  v.  New  York,  etc.,  R. 
Co.,    182    Mass.    205. 

62.  Henley  v.  Johnston,  134  Ala.  646; 
.Sands  v.   Hickey    (Ala.)    33   So.    827. 

63.  Ewing  v  Mallison.  65  Kan.  484,  70 
Pac.  369;  Barney  v.  Babcock's  Estate,  115 
Wis.  409;  McCooey  v.  New  York,  etc.,  R.  Co., 
182  Mass.  205.  The  question  of  jurisdiction 
as  dependent  upon  residence  of  deceased  may 
be  raised  collaterally — Ewing  v.  Mallison,  65 
Kan.  484,  70  Pac.  369.  The  decision  of  the 
Orphan's  Court  that  the  widow's  release  was 
obtained  by  fraud  is  not  res  judicata — In  re 
Myers'   Estate,   205   Pa.   413. 

64.  So  held  as  to  an  ancillary  appoint- 
ment where  assets  of  a  nonresident  decedent 
were  brought  within  the  state  merely  for 
the  purpose  of  procuring  a  resident  plaintiff 
to  prosecute  an  action  for  negligence — Hoes 
V.  New  York,  etc.,  R.   Co..  173  N.   Y.   435. 

65.  Henley  v.  Johnston,  134  Ala.  646; 
Jepson  V.  Martin,  116  Ga.  772;  McCooey  v. 
New  York,   etc.,   R.   Co.,   182  Mass.    205. 

66.  After  an  appeal  from  the  county  to 
the  district  court,  the  county  court  Is  with- 
out jurisdiction  to  adjudge  the  appointee  In 


contempt  for  agreeing  as  administrator  to 
change  venue  to  another  county  though  it 
had  appointed  him  temporary  administrator 
pending  the  appeal — Ex  parte  Robertson 
(Tex.  Cr.  App.)  72  S.  W.  859.  See  further 
the  title  Appeal  &  Review,  ante. 

67.  State   v.    Clark.    24   R.    I.    470. 

68.  State  V.  Clark,  24  R.  I.  470.  So  pro- 
vided by  many  statutes   [Editor]. 

60.  In  re  Sogaard's  Estate,  39  Misc.  (N. 
Y.)    519. 

70.  Awtrey  v.  Campbell  (Ga.)  45  S.  E 
301. 

71.  Clancy  v.  McElroy,  30  Wash.  567.  70 
Pac.    1095. 

72.  As  where  the  administratrix  permlt- 
tfed  the  most  valuable  asset,  a  liquor  store, 
to  be  sold  under  a  chattel  mortgage  under 
an  arrangement  whereby  one  who  had  been 
in  her  employ  became  a  purchaser  and  exe- 
cuted a  new  chattel  mortgage  and  assisted 
in  procurement  of  renewal  of  a  lease  to  the 
same  person,  and  carried  on  the  business 
in  his  name  with  her  assistance  and  for  her 
benefit — In  re  Heyen's  Estate,  40  Misc.  (N. 
Y.)  511.  Or  delay  in  administration  coupled 
with  the  filing  of  a  petition  in  voluntary 
bankruptcy — In  re  Truesdell's  Estate,  40 
Misc.  (N.  Y.)  336. 

73.  Clancy  v.  McElroy,  30  Wash.  567.  70 
Pac.   1095. 

74.  New  York  Civ.  Proc.  §  268,  subd.  6, 
authorizes  revocation  of  letters  testament- 
ary, where  the  executor  "has  moved"  from 
the  state— In  re  McKnight.  80  App.  Div 
(N.  Y.)   284. 

75.  Succession   of  Willis,   109  La.    281. 

76.  Under  N.  Y.  Code  Civ.  Proc  §  2472, 
subd.  2,  §  2481 — In  re  Wischmann,  80  App 
Div.    (N.    Y.)    520. 

77.  In  re  Healy's  Estate,  137  Cal.  474 
70   Pac.    455. 


1094 


TITLE  OF  REPRESENTATIVE. 


§   4A 


lite  should  be  made  only  where  there  is  some  reasonable  ground  to  apprehend  that 
in  the  absence  of  such  an  appointment  a  loss  will  occur  to  the  estate.''* 

The  objection  that  the  party  had  no  capacity  to  petition  for  the  removal  must 
be  raised  by  demurrer." 

An  order  on  a  petition  for  the  revocation  of  letters  of  administration  being 
appealable^"  it  will  be  conclusively  presumed  to  have  been  made  on  sufficient  evi- 
dence and  not  ordinarily  subject  to  collateral  attack.*^ 

§  4.  The  authority,  title,  interest,  and  relationship  of  personal  representa- 
tives. A.  In  general. — If  the  appointee  executor  and  trustee  merely  qualifies  as 
the  former,  he  holds  the  property  as  executor/^  and  his  duties  and  functions  as 
such  continue  until  his  final  account  has  been  filed  and  settled.*'  A  discharge^* 
or  death  terminates  his  relationship.*^  The  administrator  de  bonis  non  succeeds 
to  all  the  rights  of  the  appointee.*" 

In  the  absence  of  contrary  evidence,  the  execul  ion  of  a  writing  as  adminis- 
trator is  prima  facie  proof  of  authority  of  the  signer  as  representative,*^  and  in 
the  case  of  a  widow  signing  as  administratrix  it  will  be  presumed  to  have  been 
as  administratrix  of  the  estate  of  her  deceased  husband,** 

(§4)  B.  Contracts,  charges,  and  investments. — Generally,  an  executor*'  or 
an  administrator  in  his  capacity  as  such  cannot  bind  the  estate  by  an  original 
undertaking  on  his  part;^"  and  if  not  binding  on  the  estate,  it  cannot  be  en- 
forced against  the  heirs.'^  A  contract  signed  "A.  Estate  B,  Administrator,"  is 
the  individual  obligation  of  the  administrator.®^  An  assignment  by  a  personal 
representative  as  such  does  not  necessarily  pass  any  interest  which  be  may  have 
personally  in  the  subject-matter.®^ 


78.  Pending  an  appeal  to  the  prerogative 
court  from  an  order  removing  an  executor, 
such  court  lias  jurisdiction  to  appoint  an 
administrator  pendente  lite — In  re  Marsh's 
Estate   (N.  J.  Prero^.)    55  Atl.   299. 

70.  In  re  Tasanen's  Estate,  25  Utah,  396, 
71   Pac.   984. 

80.  In  re  Tasanen's  Estate,  25  Utah,  396, 
71  Pac.  984;  In  re  Sutton's  Estate,  31  Wash. 
340,  71  Pac.  1012. 

81.  A  temporary  injunction  restraining 
the  co-administrator  from  taking  possession 
under  an  order  removing  his  co-executor  and 
directing  such  surrender  will  be  dissolved—* 
Howell  V.   Dinneen   (S.   D.)    94  N.  "W.   69S. 

82.  Wallber  v.  Wilmanns,  116  Wis.  246. 

83.  Wallber  v.  Wilmanns,  116  Wis.  246.  A 
final  settlement  and  distribution  is  not  con- 
clusive that  he  has  ceased  to  be  executor — 
Whetstone  v.  McQueen  (Ala.)  34  So.  229. 

84.  The  authority  of  an  agent  of  a  person- 
al representative  terminates  upon  the  dis- 
charge of  the  representative  as  such — Upton 
V.  Dennis   (Mich.)   94  N.  W.  728. 

85.  McClellan  v.  Mangum  (Tex.  Civ.  App.) 
75    S.   W.    840. 

8G.     Goodwynne    v.    Bellerby,    116    Ga.    901. 

87.  Murray  v.   Barden,    132   N.   C.    136. 

88.  Pittsburg,  etc.,  R.  Co.  v.  Gipe  (Ind.) 
f,5  N.  E.  1034. 

89.  By  the  mere  execution  by  renewal  of 
a  promissory  note,  a  new  promise  is  not  cre- 
ated to  pay  the  original  note  executed  by 
decedent — Hughes  v.  Treadaway,  116  Ga.  663. 
The  execution  of  a  promissory  note  by  an 
executrix  also  life  tenant  under  the  will  is 
not  binding  on  the  estate — Whltten  v.  Bank 
of  Fincastle.  100  Va.  546.  Witiiout  authori- 
zation by  the  will  or  order  of  court,  an  ex- 
ecutor has   no   power   to   bind    the    estate   by 


borrowing  money  for  Its  use — Rice  v. 
Strange,  24  Ky.  L.  R.  1945,  72  S.  W.  756.  Un- 
der a  mere  power  given  to  executors  to  keep 
property  together  for  a  specified  terra  of 
years  they  have  not  power  to  consent  to  a 
mortgage  by  one  of  the  heirs  on  his  undi- 
vided Interest — Garman  v.  Hawley  (Mich.) 
93  N.  W.  871.  Under  power  to  "handle,  man- 
age and  control  the  estate,  and  to  sell,  realize 
and  convey,  by  deed  or  other  conveyance 
*  •  •  in  such  a  manner  as  may  seem 
right  and  proper,"  the  executor  had  power 
to  transfer  a  purchase  money  note  belong- 
ing to  the  estate,  as  collateral  security  for 
money  borrowed  by  him — Prieto  v.  Leonards 
(Tex.  Civ.  App.)  74  S.  W.  41.  The  question 
whether  the  executor  had  power  to  employ 
assistants  or  agents  cannot  be  determined 
in  an  action  to  construe  the  will,  but  must 
be  determined  on  the  accounting  of  the  ex- 
ecutor— Russell  V.  Hilton.  80  App.  Div.  (N. 
Y.)  178.  An  executor  who  was  personally 
liable  on  notes,  the  principal  assets  of  the  es- 
tate, may  loan  the  amount  thereof  in  consid- 
eration of  another  becoming  his  surety  and 
as  indemnity,  to  be  paid  to  the  estate  when 
It  could  be  settled  which  was  not  until  the 
death  of  the  ■widow — Brown's  Ex'r  v.  Dunn's 
Estate   (Vt.)   55  Atl.   364. 

90.  Craig  V.  Anderson  (Neb.)  92  N.  W.  640. 

91.  Contract  with  an  attorney  for  services 
to  be  rendered  the  estate — In  re  Brunlng's 
Estate    (Iowa)    96   N.   W.    780. 

92.  And  in  an  action  thereon  a  pleading 
of  plene  admlnistravit  is  an  insufficient  an- 
swer— Glisson  V.  E.  A.  Weil  &  Co.,  117  Ga. 
842. 

93.  Richtmyer  v.  Lasher,  77  App.  Div.  (N. 
T.)    574. 


§  4C 


TITLE  OF  REPRESENTATIVE. 


1095 


An  administrator  may  employ  as  counsel  for  the  estate  an  attorney  for  one 
of  the  heirs  in  a  suit  between  the  heirs.^*  If  authorized  to  sell  under  a  will  the 
executor  may  employ  an  agent  to  make  the  sale  and  agree  to  compensate  him 
therefor.^^ 

The  court  having  jurisdiction  of  the  estate  may  authorize^®  or  direct  the  per- 
sonal representative  of  a  deceased  person  to  perform  a  contract  entered  into  by 
deceased  during  his  life/^  and  the  heirs  are  necessary  parties  where  a  contract  of 
sale  of  realty  is  sought  to  be  enforced.**^  Specific  performance  of  a  contract  of 
sale  may  be  enforced  by  the  representatives  of  the  deceased  vendor^^  or  they  may 
exercise  the  contracted  option  to  rescind.* 

To  continue  decedents'  business  for  other  than  the  purpose  of  reduction  to 
money  there  must  be  an  express  authorization  in  the  will;-  an  oral  request  of  the 
decedent  before  his  death  is  insufficient.^  If  the  will  directs  the  sole  surviving 
partner  to  continue  the  business,  the  personal  representative  of  the  deceased  part- 
ner and  such  survivor  become  partners  and  liable  as  such,*  but  if  an  executor  vol- 
untarily continues  the  business  of  the  deceased  he  will  be  charged  to  account 
for  only  the  net  profits.^ 

Generally,  the  making  of  improvements  on  realty  by  executors^  or  investments 
as  the  purchase  of  realty  at  their  own  foreclosure  sale,  should  only  be  done  on 
leave  of  court.'^ 

(§4)  C.  Title,  interest,  or  right  in  decedents'  property. — The  title  to  all 
personalty  passes  to  the  domiciliary  representative  no  matter  where  situated.*  Or- 
dinarily an  administrator  has  no  rights  in  the  lands  of  a  decedent  who  left  heirs 
except  to  subject  them  to  the  payment  of  decedent's  debts,"  nor  is  he  under  oblio-a- 
tion  to  take  possession  until  it  is  necessary  for  the  protection  of  creditors^"  or 
until  an  order  has  been  entered  directing  him  to  take  possession,*^  which  can  be 
granted  only  when  it  is  necessary  for  the  payment  of  debts,*^  and  which  applies 


94.  In  re  Healy's  Estate,  137  Cal.  474,  70 
Pac.  455. 

95.  Ing-ham  v.  Ryan  (Colo.  App.)  71  Pac. 
899. 

9<5.  Contract  for  sale  of  realty — May  v. 
Boyd,    97   Me.    398. 

97.  Pitzsimmons  v.  Lindsay,  205  Pa.  79; 
In  re  Hug-gins'  Estate,  204  Pa.  167.  No  mat- 
ter what  the  form  of  the  application  to  the 
court' may  be,  whether  in  the  natxire  of  a  bill 
in  equity  or  not — Wheeler  v.  Wheeler,  105  111. 
App.  48. 

98.  A  decree  made  In  such  a  proceeding  to 
whicli  the  heir  is  not  a  party,  may  be  col- 
laterally attacked  on  such  g-round — Holmes 
V.  Columbia  Nat.  Bank  (Nob.)  97  N.  W.  26. 
Recitals  in  such  a  decree  will  not  be  extended 
to  include  other  than  record  parties — Id.  Re- 
lief granted  in  such  a  proceeding — Id. 

99.  In  the  absence  of  fraud  and  collusion 
and  unless  the  property  is  homestead,  any  al- 
leg-ation  of  the  personal  representative  of 
the  deceased  vendor  in  suit  for  specific  per- 
formance is  binding  on  all  persons  inter- 
ested in  the  estate,  e.  g.,  an  allegation  that 
the  property  is  homestead — Solt  v.  Anderson 
(Neb.)  93  N.  W.  205.  The  decree  should  di- 
rect payment  of  the  purchase  money  to  the 
heirs — id. 

1.     Oakes  v.  Gillilan    (Neb.)    95  N.   W.    511. 
In  re  Peck,   79  App.  Div.    (N.  Y.)    296. 
In  re  McCollum,  80   App.   Div.    (N.   Y.) 


2. 
3. 

362. 
4. 

W.   99 


City  Nat.  Bank  v.  Stone   (Mich.)   92  N. 


5.  In   re   Peck,    79   App.    Div.    (N.    Y.)    296. 

6.  Improvement  approved  though  made 
v/ithout  leave  of  the  court — Henry  v.  Hen- 
derson   (Miss.)    33   So.    960. 

7.  An  order  granting  such  authority  held 
to  limit  the  bid  by  the  executors  to  an 
amount  equal  to  the  face  of  the  note  secured 
by  the  mortgage — Warfield  v.  Hume,  91  Mo. 
App.   541. 

8.  In  re  McCabe,  84  App.  Div.   (N.  Y.)  145. 

9.  Halstead  v.  Coen  (Ind.  App.)  67  N.  E. 
957.  He  cannot  therefore  maintain  a  bill  to 
quiet  title — Bailey  v.  Larrance,  104  111.  App. 
662.  It  is  the  duty  of  the  administrator  to 
pay  taxes  and  Insurance,  and  spend  money  in 
repairing  the  realty — State  v.  Taylor  (Mo. 
App.)  74  S.  W.  1032.  Before  assignment  of 
dower  the  widow  is  entitled  to  possession 
of  the  real  estate  on  which  deceased  had 
given  a  trust  deed  which  covenanted  that  ha 
should  remain  in  possession  until  default  in 
payment.  Particularly  where  she  is  the  ad- 
mini:-tratrix  of  deceased  grantor,  since  as 
such  she  is  the  holder  of  the  term  of  years 
created  by  the  covenant — Wilkes  v.  Wilkes, 
18   App.  D.  C.   90. 

10.  Tunnicliffe  v.  Fox  (Neb.)  94  N.  W. 
1032. 

11.  Johnson  v.  McKinnon  (Pla.)  34  So. 
272.  If  he  has  not  been  in  possession  or  di- 
rected to  take  possession  by  tlie  court,  he 
cannot  defend  in  ejectment — Finlayson  v. 
Love    (Fla.)    33  So.  306. 

12.  Where  there  is  no  showing  that  the 
personal  estate  was  Insufficient  to  pay  debts. 


1096 


ESTATES  OF  DECEDENTS. 


§  5A 


to  a  temporary  administrator  appointed  pending  the  contest  oi  the  will."  He 
cannot  therefore  maintain  an  action  to  avoid  a  fraudulent  conveyance  by  de- 
cedent until  there  is  a  deficiency  in  assets.^*  An  administrator  has  no  interest 
or  possessory  rights  in  homestead  lands  of  the  deceased/^  but  until  the  widow's 
homestead  is  set  apart  and  segregated,  the  widow  as  executrix  is  entitled  to  the 
control  of  the  entire  track.^«  The  possession  of  realty  by  an  administrator  is 
not  adverse  to  the  heirs.^^ 

The  personal  representative  has  the  same  but  no  better  title  than  his  decedent 
had^*  which  vests  by  relation  from  the  time  of  death"  and  he  holds  the  property 
in  trust  for  all  the  creditors.^" 

Possession  of  personalty  by  the  heirs  before  the  appointment  is  not  wrongful.^^ 
8  5.  The  property;  its  collection,  management  and  disposal  hy  personal  rep- 
resentatives. A.  Assets. — Jewelry,  such  as  a  watch,  watch-chain,  watch-charm, 
rings,  and  diamonds,  are  assets."  Insurance  money  received  under  a  policy  pay- 
able to  the  estate  of  the  deceased  is  ordinarily  an  asset.^^  The  recovery  for  in- 
juries resulting  in  death  by  the  representative  is  not  generally  considered  assets." 
Income  accruing  on  a  life  estate  prior  to  the  death  of  the  life  tenant  are  assets 
of  his  estate.^^  A  recovery  for  injuries  to  the  realty  paid  after  the  death  of  the 
remainderman  are  assets  of  his  estate  subject  to  the  life  estate.^**  A  right  of  ac- 
tion to  recover  for  a  trespass  on  realty  during  the  life  of  the  owner  is  an  asset 
passing  to  his  representative  on  his  death."  Unpaid  purchase  money  passes  to 
the  administrator  of  the  deceased  vendor  as  personalty^*  even  if  the  contract  of 


orders  authorizing  the  administrator  to  com- 
plete buildings  commenced  by  the  deceased 
and  to  take  charge  of  the  improved  real 
estate,  and  to  insure  buildings  thereon,  are 
void,  and  the  administrator  will  not  be  al- 
lowed the  expenses  therein  as  credits,  but 
will  not  be  charged  with  rents  accruing  aft- 
er death  collected  by  him— Langston  v.  Can- 
terbury, 173  Mo.  122. 

13.  Union   Trust  Co.    v.    Soderer,    171   Mo. 

14.  Bagley  v.  Harmon,  91  Mo.  App.  22.  But 
under  Mass.  Pub.  Sts.  c.  134.  §  15,  the  repre- 
sentative must  first  obtain  possession  by 
entry  or  action  and  sell  within  a  year  after 
possession— Tyndale  v.  Stanwood,  182  Mass. 
.534  The  heirs  have  no  right  to  avoid  an 
executed  gift  by  the  deceased  ancestor, 
though  it  was  procured  by  fraud  or  undue  in- 
fluence—Bishop V.  Leonard,  123  Fed.  981. 

15.  Finlayson  v.  Love  (Fla.)   33  So.  306. 

16.  Cammack  v.  Rogers  (Tex.  Civ.  App.) 
74  S.  W.  945. 

17  And  if  he  passed  possession  to  his 
wife  and  continued  to  reside  thereon,  there 
Js  no  visible  change  of  possession— Ashford 
V.  Ashford.  136  Ala.  631. 

18.     Lahey  v.  Broderick  (N.  H.)  55  Atl.  354. 

19      Flynn   v.    Flynn,    183   Mass.    365. 

2o'  Though  the  estate  is  administered  un- 
der a  will  free  from  the  control  of  the  county 
court— Farmers'  &  Merchants'  Nat.  Bank  v. 
Bell   (Tex.  Civ.  App.)   71  S.  W.  570. 

21.  Hardy  v.   Wallis,   103   111.   App.   141. 

22.  Cofflnberry    v.    Madden,    30    Ind.    App. 

23  Pletri  V.  Seguenot,  96  Mo.  App.  258. 
Evidence  in  an  action  by  an  administrator 
held  sufficient  to  show  that  a  policy  of  in- 
surance held  by  a  creditor  of  the  decedent 
was  taken  out  to  secure  the  creditor  and 
not  by  the  creditor  in  his  own  "ght— Strode 
v    Meyer  Bros.  Drug  Co.   (Mo.  App.)   74  S.  W. 


379.  Evidence  held  sufficient  to  show  a  pol- 
icy of  insurance  an  asset  of  the  estate — 
Phoenix  Mut.  Life  Ins.  Co.  v.  Opper,  75  Conn. 
295.  The  application  for  insurance  contained 
a  direction  to  pay  on  death  to  the  person 
whom  the  applicant  would  name  in  his  w^ill, 
and  the  policy  was  made  payable  to  the  de- 
ceased, his  personal  representatives  or  as- 
signs, held  that  the  policy  was  assets  and 
the  legatee  was  entitled  to  the  surplus  pro- 
ceeds after  the  payment  of  the  debts  of  the 
estate  of  insured — Leonard  v.  Harney,  173  N. 
T.   352. 

Statute  governs  In  N.  Y.  as  to  fraternal 
and  mutual  benefit  insurance. 

24.  See  Woerner,  Adm'n,  §  306,  p.  647;  and 
subject  Death  by  Wrongful  Act,  ante,  p.  865. 
The  general  administrator  of  a  deceased  per- 
son is  the  proper  party  to  maintain  an  action 
to  recover  for  the  wrongful  death  of  the 
decedent — Lake  Erie  &  AV.  R.  Co.  v.  Char- 
man  (Ind.)  67  N.  E.  923.  An  administratrix 
has  authority  to  compromise  a  claim  for 
wrongful  death  of  her  deceased  husband 
without  leave  of  court — Pittsburg,  etc.,  R.  Co. 
V.  Gipe  (Ind.)  65  N.  E.  1034.  The  administra- 
trix and  sole  distributee  may  compromise  an 
action  brought  by  her  to  recover  for  the 
wrongful  death  of  the  intestate's  husband — 
Mattoon  Gas  Light  Co.  v.  Dolan,  105  111. 
.\pp.    1. 

25.  People's  Nat.  Bank  v.  Cleveland,  117 
Ga.  908. 

26.  De  Witt  V.  Lehigh  Val.  R.  Co.,  21  Pa. 
Super.   Ct.    10. 

27.  Code  1892,  §§  1916,  1917.  Heirs  cannot 
sue  therefor — Conklin  v.  Alabama  &  R.  R. 
Co.    (Miss.)   32  So.  920. 

28.  Clapp  v.  Tower,  11  N.  D.  556;  Solt 
V.  Anderson  (Neb.)  93  N.  'W.  205.  In  the 
hands  of  an  officer  under  a  sale  under  execu- 
tion prior  to  the  death  of  decedent — Carr  v. 
Berry.  116  Ga.  372. 


§  SB 


PROPERTY. 


1097 


sale  with  deceased  was  renewed  by  his  representative;-'  but  if  the  land  is  the 
homestead  of  the  deceased  vendor  his  administrator  is  entitled  only  to  the  sur- 
plus over  the  statutory  limit.""  Though  the  executor  be  given  power  of  sale,  rents 
accruing  subsequent  to  the  death  of  the  decedent  are  not  assets.^^  Under  a  deed 
of  trust  by  decedent  whereby  he  was  to  receive  the  income  during  life  and  on  his 
death  the  trustee  was  to  pay  over  to  "his  heirs,  executors,  or  administrators  (the 
remainder)  as  the  same  may  in  and  by  the  law  be  provided"  the  trustor's  executor 
is  entitled  to  the  remainder. ^- 

While  the  representative  as  such  has  no  interest  in  property  held  by  deceased 
in  trust  though  he  was  one  of  the  beneficiaries,^^  it  not  being  an  asset,^*  yet  he 
is  entitled  to  possession  of  such  propcrty.^^  The  presumption  is  that  a  judgment 
in  favor  of  a  representative  as  such  is  his  personal  judgment  but  is  subject  to  bq 
removed  by  slight  evidence  showing  that  it  was  in  fact  a  judgment  in  favor  of 
the  estate.^® 

(§5)  B.  Collection  and  reduction  to  possession. — The  personal  representa- 
tive being  entitled  to  the  possession  of  personalty  can  alone  sue  to  recover  ;^^  the 
heirs  being  entitled  to  sue  only  when  there  is  no  necessity  for  administration,^* 
though  they  may  be  made  parties  to  an  action  to  recover  assets  procured  from  the 
deceased  by  fraud.^*  The  representative  of  a  deceased  legatee  may  enforce  a  pro- 
vision in  the  testator's  will  directing  the  payment  of  the  legatee's  debts.*"  The 
personal  representative  is  not  estopped  to  claim  restitution  of  property  sold  under 
a  void  execution  merely  because  he  was  present  and  purchased  at  the  sale,*^  nor 
is  he  estopped  to  claim  title  because  he  took  possession  as  representative.'*^  A' 
representative  can  compromise  a  debt  due  the  estate  only  on  leave  obtained.*^ 

Only  unadministered  assets  vests  in  the  administrator  de  bonis  non**  to  re- 
cover which  he  may  sue  his  predecessors,*"^  but  personalty  mingled  with  the  ad- 


29.  Clapp  V.   Tower,  11   N.  D.   556. 

30.  Solt  V.  Anderson   (Neb.)    93  N.  W.   205. 

31.  Bittle  V.  Clement.  (N.  J.  Eq.)  54  Atl. 
138.  Rents  and  profits  of  realty  which  had 
descended  to  an  intestate  held  not  such  as- 
sets which  would  pass  to  the  administrator 
— Appeal  of  Ward,  75  Conn.  598. 

32.  Heintz  v.  Hoover,  138  Cal.  372,  71  Pac. 
-447. 

33.  In  an  action  against  him  for  an  ac- 
counting of  the  rents  and  profits,  the  judg- 
ment should  be  against  him  personally — An- 
derson V.  Northrop   (Fla.)    33  So.   419. 

34.  In  re  Belt's  Estate,  29  Wash.  535,  70 
Pac.  74. 

35.  But  Is  liable  to  account  to  the  bene- 
ficiary in  his  individual  or  representative  ca- 
pacity— In  re  Belt's  Estate,  29  Wash.  535,  70 
Pac.  74.  The  representative  of  a  deceased 
public  officer  who  died  in  possession  of  funds 
coming  to  him  by  virtue  of  his  office  which 
he  had  mingled  with  personal  funds,  is  en- 
titled to  the  possession  thereof  for  the  pur- 
poses of  administration — O'Brien  v.  New 
England  Trust  Co.,  183  Mass.  186.  In  Ver- 
mont, the  probate  court  may  direct  the  rep- 
resentatives to  convey  property  held  by  the 
deceased  in  trust  to  the  person  entitled 
thereto.  Property  purchased  by  the  hus- 
band and  deeded  to  the  wife  is  not  such  a 
trust  as  would  confer  jurisdiction  to  the 
probate  court  to  direct  the  deceased  wife's 
representatives  to  convey — Wilder's  Ex'x  v. 
Wilder   (Vt.)    53  Atl.   1072. 

36.  SuflSciency  'of  evidence  to  rebut  the 
presumption — Dozier  v.  McWhorter,  117  Ga. 
786. 


37.  Mitchell  v.  Mitchell,  132  N.  C.  350.  The 
widow  cannot  sue  to  recover  property  alleged 
to  have  been  transferred  by  the  deceased 
husband  In  fraud  of  her  marital  rights — 
Plynn  v.  Flynn,  183  Mass.  365.  The  heirs 
cannot  sue  to  recover  for  trespass  to  per- 
sonalty   committed    during    decedent's    life 

Conklin  v.  Alabama  &  V.  R.  Co.  (Miss.)  32 
So.  920.  Evidence  In  an  action  to  recover  as- 
sets held  sufl^cient  to  warrant  the  submission 
of  the  cause  to  the  jury — Motz  v.  Motz,  82 
N.  Y.  Supp.  926. 

38.  Sun  Life  Ins.  Co.  v.  Phillips  (Tex.  Civ. 
App.)    70   S.   W.    603. 

39.  Keys  V.  McDermott  (Wis.)  93  N.  W. 
553;  Gay  v.  Mooney,  67  N.  J.  Law,  687. 

40.  Such  a  direction  is  in  the  nature  of  a 
legacy — Hallock  v.  Hallock,  79  App.  Div.  (N. 
Y.)   508. 

41.  Under  Code  Civ.  Proc.  §  957 — Black  v. 
Vermont  Marble  Co.,  137  Cal.  683,  70  Pac.  776. 

42.  In  re  Belt's  Estate,  29  Wash.  535,  70 
Pac.    74. 

43.  The  surrogate  has  power  to  allow  a 
compromise  of  a  claim  by  accepting  stock  in 
a  foreign  corporation  to  which  the  property 
in  dispute  was  to  be  transferred  which  was 
in  possession  of  one  claiming  right  thereto 
as  surviving  partner  of  the  deceased — In  re 
Oilman's  Esldte,  82  App.  Div.   (N.  Y.)   186. 

44.  Meservey  v.  Kalloch,  97  Me.  91. 

45.  Such  an  administrator  is  not  within 
Rev.  St.  Me.  72,  §§  10,  16 — Meservey  v.  Kal- 
loch, 97  Me.  91;  American  Surety  Co.  v.  Piatt 
(Kan.)  72  Pac.  775.  Instructions  in  an  ac- 
tion by  a  successor  to  recover  assets  from  his 


1098 


ESTATES  OF  DECEDENTS. 


§  S( 


ministrator's  personalty  so  as  to  be  incapable  of  identification  are  not  assets  passing 
to  the  administrator  de  bonis  non.*^  In  a  proceeding  to  recover  the  assets  an 
issue  of  title  may  be  tried  by  jury.*^  Eor  the  conversion  of  assets  by  the  admin- 
istrator, the  remedy  of  the  special  administrator  is  by  an  accounting.*® 

The  petition  must  describe  the  personalty  sought  to  be  recovered  from  the 
heirs  by  action.*®  Mere  insolvency  of  an  estate  is  not  a  defense  to  an  action  by  the 
representative  to  recover  for  a  tort  to  the  estate.^"  Equity  having  jurisdiction  of 
a  suit  by  an  administrator  to  declare  a  trust  in  favor  of  the  decedent  in  lands 
may,  as  a  part  of  the  relief,  direct  a  sale  thereof." 

(§5)  C.  Inventory  and  appraisal. — There  should  be  an  inventory  retiarned." 
An  additional  inventory  of  newly-discovered  property  may  be  filed.^^ 

Only  persons  interested  in  the  estate  can  compel  the  filing  of  an  inventory  by 
the  representative.^* 

It  is  not  ground  of  objection  to  an  inventory  that  it  failed  to  include  as  an 
asset  a  personal  claim  against  the  estate  which  was  not  intended  to  be  enforced,"*"* 
but  the  inventory  of  the  representative  of  a  deceased  representative  must  include 
a  claim  paid  to  heirs  as  shown  by  the  accounts  of  the  latter.^*  If  the  personalty 
liad  all  been  disposed  of  by  will  and  there  was  but  one  small  debt  which  was  ap- 
portioned among  the  beneficiaries  under  the  will,  there  is  no  necessity  for  making 
an  inventory .^^ 

An  administrator  cannot  be  compelled  to  inventory  property  not  an  asset.°® 
The  mere  direction  to  inventory  certain  property  is  not  conclusive  that  such  prop- 
erty is  an  asset.  ^® 

It  will  be  presumed  that  property  Avith  which  he  charges  himself  is  an  asset  f'^ 
yet  he  is  not  estopped  thereby  from  claiming  owTiership." 

The  personal  representative  has  nothing  to  do  with  the  appointment  of  ap- 
praisers."^ 

(§5)  D.  Property  allowed  widow  or  children.  Quarantine. — The  widoVs 
allowance  is  determined  by  the  terms  of  the  various  statutes."* 


predecessor     held     sufficient — Tunnicliffe     v. 
Fox   (Neb.)    94  N.  W.   1032. 

46.  Reed  v.  Hume,  25  Utah,  248,  70  Pac. 
998;  Meservey  v.  KaUock,  97  Me.   91. 

47.  In  probate  court — In  re  Murphy's  Es- 
tate, 30  Wash.  9,  70  Pac.  109.  In  Pennsyl- 
vania, the  Orphan's  court  may  award  such  an 
issue  to  the  common  pleas  to  determine  the 
title  of  claimant— In  re  Huggins'  Estate,  204 
Pa.  167. 

48.  Iowa  Code.  §  3393 — Garretson  v.  Kin- 
kead,  118  Iowa,  383.  If  the  personal  repre- 
sentative takes  possession  of  realty  under  the 
supposition  that  it  belonged  to  the  decedent, 
he  will  be  allowed  only  for  such  payment 
made  to  protect  the  property,  where  the 
person  entitled  thereto  had  received  a  direct 
benefit  by  such  payment — Walker  v.  Neil 
(Ga.)  45  S.  E.  387.  He  cannot  have  the 
property  subjected  to  re-payment  of  the 
taxes  when  decreed  to  be  the  property  of 
the  daughter — Id. 

49.  Union  TAst  Co.  v.  Soderer,  171  Mo. 
675. 

50.  Brown   v.   Howell,    68   N.    J.   Law,    292. 

51.  Suit  to  recover  funds  of  decedent 
wrongfully  converted  into  realty.  If  the 
minor  heir  by  his  guardian  had  full  knowl- 
edge of  the  proceeding  and  acquiesced  there- 
in he  will  be  estopped  to  question  the  title 
of  the  purchaser — Buchanan  v.  Ammerman, 
21  Pa.  Super.  Ct.  439. 


52.  In  proceedings  for  an  accounting  the 
executor  should  not  be  penalized  for  failure 
to  file  an  inventory — Mulford  v.  Mulford  (N. 
J.  Ch.)   53  Atl.  79. 

53.  As  expressly  authorized  by  Sayles' 
Ann.  Civ.  St.  1S97,  §  1973 — Texas  Loan  Agen- 
cy v.   Dingee    (Tex.   Civ.   App.)    75   S.   W.   866. 

54.  Petition  held  insufficient  to  show  pe- 
titioner a  creditor — In  re  Huntington's  Es- 
tate, 39  Misc.   (N.  Y.)   477. 

55.  56.  In  re  Glenn's  Estate,  23  Ohio  Circ. 
R.  397. 

57.  In  re  Murphy's  Estate,  30  Wash.  9,  70 
Pac.  109. 

58.  Merely  because  property  was  recov- 
ered by  representatives,  as  such,  does  not  of 
itself  show  that  such  property  is  an  asset — 
In  re  Belt's  Estate,  29  Wash.  535,  70  Pac.  74. 

59.  The  probate  court  has  jurisdiction  to 
determine  whether  certain  property  is  an  as- 
set merely  for  the  purpose  of  compelling  an 
inventory.  The  finding  however  is  not  con- 
clusive in  another  form — In  re  Belt's  Estate, 
29  Wash.  535.  70  Pac.  74. 

60.  In  re  Fague's  Estate,  19  Pa.  Super.  Ct. 
638. 

61.  In  re  Murphy's  Estate,  30  Wash.  9. 
70  Pac.  109;  Tunnicliffe  v.  Fox  (Neb.)  94  N. 
W.  1032. 

62.  Held  in  action  on  bond  for  breach  of 
duty — O'Brian  v.    Wilson    (Miss.)    33   So.    946. 

63.  The   widow's   statutory   exemption   In- 


§  5D 


PROPERTY. 


1099 


The  widow's  allowance  for  support  does  not  depend  upon  the  testacy,  in- 
testacy" or  the  solvency  of  the  deceased  husband®^  or  the  fact  that  she  could  sup- 
port herself  and  children  from  the  incomQ  of  her  own  property;®"  and  if  the  in- 
come from  property  which  she  held  as  a  devisee  was  insufficient  for  her  support 
without  resorting  to  the  principal  fund,  she  may  properly  be  allowed  for  a  year's 
support."  Under  the  Georgia  statutes  she  is  not  entitled  to  homestead  and  a  j^ear's 
support  where  the  aggregate  of  the  two  exceed  the  amount  which  may  be  set  apart 
as  a  homestead  and  exemption,®^  yet  she  will  not  be  deprived  of  her  year's  sup- 
port merely  because  she  and  her  children  resided  for  a  year  on  the  deceased's 
homestead  property.®^ 

An  antenuptial  contract  whereby  she  agreed  not  to  claim  any  interest  in  any 
property  of  her  husband  bars  her  right  to  support/"  but  only  where  deceased  left 
no  minor  children  surviving."  She  may  lose  her  right  by  electing  to  take  under 
the  will  of  the  deceased  husband."  A  decree  of  separation  and  alimony  obtained 
by  the  wife  during  life  bars  her  right,  as  widow,  to  an  allowance.''^ 

The  legal  title  to  specific  property  set  apart  by  statute  to  the  widow  vests 
immediately  in  her^*  which  she  may  recover  by  action  j^'^  if,  however,  the  widow 
took  possession  of  personalty  of  less  value  than  her  exemption,  the  representative 
of  deceased  cannot  be  charged  therewith.'®  Where  the  statute  provides  that  if  the 
deceased's  estate  did  not  exceed  a  certain  sum  the  widow  may  have  the  same  set 
aside  to  her  free  from  debts  she  takes  subject  to  a  purchase-money  morto-ao-e  on 
such  property."  If  real  property  is  set  off  to  the  widow  it  is  subject  to  a  valid 
pre-existing  lien  thereon.'*  The  widow's  demand  for  her  statutory  allowance  in- 
ures to  the  benefit  of  her  assignee.'® 

The  allowance  to  the  deceased's  family  should  be  generally  made  on  notice.*** 


eludes  onlj'  such  personal  articles  of  which 
the  deceased  died  possessed  and  not  money — 
In    re    Sprague's   Estate,    85    N.    Y.    Supp.    303. 

The  amount  of  the  allowance  is  within  the 
discretion  of  the  court — Maney  v.  Casserly 
(Mich.)    96  N.  W.   478. 

It  Is  ouly  ^vhere  minor  children  are  mem- 
bers of  the  family  of  tlie  deceased  that  they 
can  share  in  the  allowance  for  a  year's  sup- 
port to  the  widow  and  children  under  the 
statute,  (Goss  v.  Harris.  117  Ga.  345)  or  when 
it  is  necessary  for  their  support  that  person- 
al property  can  be  set  apart — Stewin  v. 
Thrift,  30  Wash.  36.  70  Pac.  116.  An  allow- 
ance for  the  maintenance  of  the  minor  chil- 
dren may  be  made  from  the  estate  of  the  de- 
ceased mother.  Under  2  Ballinger's  Wash. 
Ann.  Codes  &  St.  §  6220 — In  re  Murphy's  Es- 
tate, 30  "Wash.  9,  70  Pac.  109.  Ohio  Rev.  St. 
5  r,040 — In  re  Glenn's  Estate,  23  Ohio  Giro.  R. 
397. 

64.     Busby  V.  Busby   (Iowa)    95  N.  W.   191. 

6.".  That  bankruptcy  proceedings  were 
pending  against  deceased  at  the  time  of  his 
death  will  not  bar  the  widow's  statutory  al- 
lowance— In  re  Parschen,  119  Fed.  976. 

66.  Busby  v.   Busby    (Iowa)    95  N.  W.   191. 

67.  Under  the  facts  the  representatives  of 
the  estate  were  held  estopped  by  laches  to 
move  to  vacate  an  order  granting  the  widow 
an  allowance  for  a  year's  support — Busby  v. 
Busby    (Iowa)    95  N.  W.   191. 

68.  Green  v.  Harnbrick  (Ga.)  45  S.  E3.  420. 
That  the  widow  also  had  a  homestead  set 
apart  from  the  estate  of  her  deceased  hus- 
band is  not  ground  for  collateral  attack  on 
a  Judgment  setting  apart  a  year's  support — 
Groover  v.   Brown    (Ga.)    45  S.  B.  310. 


69. 
70. 

465. 
71. 
72. 


Bardwell  v.  Edwards  (Ga.)  45  S.  E.  40. 
Perkins   v.    Brinkley    (N.    C.)    45    S.    E. 


Zachmann    v.    Zachmann,    201    III.    380. 

Nelson  v.  Lyster  (Tex.  Civ.  App.)  74 
S.  W.  54.  A  failure  for  six  months  to  elect 
not  to  take  under  the  will,  will  bar  the 
widow's  right  to  a  year's  support — Perkins  v 
Brinkley  (N.  C.)    45  S.  E.   465. 

In  re  Evans'  Estate,  21  Pa.  Super.  Ct. 


73. 

430. 

74. 
N.   Y. 

75. 


Code,  §  2713 — Crawford  v.  Nassov,  173 
163. 

She  need  not  proceed  In  the  surro- 
gate's court — Crawford  v.  Nassoy,  173  N.  Y 
163. 

76.  Her  exemption  not  having  been  set 
apart  to  her — O'Brian  v.  Wilson  (Miss.)  3a 
So.   946. 

77.  Under  Burns'  Rev.  St.  Ind.  1901,  §§ 
2575,  2578 — Warner  v.  Warner,  30  Ind.  App. 
578. 

78.  Wade  v.  Freese  (Tex.  Civ.  App.)  71  S. 
W.  69.  Sayles'  Rev.  Civ.  St.  1888.  1889.  art. 
2053,  providing  that  no  property  on  which 
liens  had  been  given  by  husband  and  wife, 
so  as  to  be  binding  on  her,  or  on  which 
vendor's  lien  exists,  shall  be  set  apart  as 
exempt  until  the  discharge  of  the  debt  se- 
cured, applies  to  insolvent  estates — Parlin  & 
Orendorff  Co.  v.  Davis'  Estate  (Tex.  Civ 
App.)  74  S.  W.  951. 

79.  The  joinder  of  the  widow  with  the 
assignee  in  an  action  for  her  statutory  al- 
lowance is  not  fatal — Brown  v.  Bernhamer 
159    Ind.    538. 

80.  An  order  made  without  notice  may  be 
validated   by   an   order   after  hearing  on   no- 


11 00 


ESTATES  OF  DECEDENTS. 


In  Texas,  the  probate  court  has  no  jurisdiction  of  such  an  application  where  by 
the  will  it  was  provided  that  no  action  should  be  had  in  such  court  vnth  reference 
to  the  estate  other  than  the  probate  of  the  will  and  filing  of  the  inventory.^^  In 
an  action  to  recover  it  is  essential  that  she  aver  the  existence  of  funds  sufficient 
to  pay  the  allowance  at  the  time  of  the  demand. *- 

The  estate  in  remainder  of  heirs  in  homestead  set  apart  to  the  widow  and  heirs 
is  subject  to  sale  for  payment  of  the  widow's  award. ^^  If  the  widow  was  appoint- 
ed executrix  and  devised  a  life  estate  but  failed  to  have  her  award  allowed,  but 
did  not  waive  the  same,  it  will  not  constitute  a  lien  on  the  realty  after  her  death,^* 
An  order  granting  a  monthly  allowance  to  the  widow  for  support  is  subject  to 
modification  pending  administration  on  the  estate.^^  An  appeal  from  the  allow- 
ance may  be  taken  by  the  executor.^® 

The  widow  is  entitled  to  quarantine  in  the  mansion  house  and  plantation  until 
dower  is  assigned,*'^  which  right  is  assignable,^^  and  a  conveyance  by  her  after  the 
husband's  death  operates  as  an  assignment  thereof.*®  She  may  lose  her  quarantine 
right  by  having  abandoned  her  husband  during  his  life  and  lived  in  adultery.®" 

(§5)  E.  Management,  custody,  control,  and  disposition  of  estate. — In  some 
states  by  a  special  statutory  provision  the  court  having  probate  jurisdiction  may 
take  charge  of  the  estate  of  the  intestate  and  dispose  of  the  same  without  the  ap- 
pointment of  an  administrator.®^  The  executor  is  entitled  to  have  corporate  stock 
belonging  to  the  estate  transferred  on  the  books  of  the  corporation  in  his  own 
name,®-  and  an  administrator  may  pay  dues  on  building  and  loan  stock  pledged  by 
the  decedent  without  leave  of  court.®^ 

In  some  states  the  representative  can  transfer  personalty  only  on  leave  of 
court,®*  though  the  court  may  ratify  a  transfer  made  without  leave.®^  In  selling 
personalty,  the  representatives  must  obtain  the  best  possible  price.®* 

Leave  of  court  is  necessary  to  authorize  the  representative  to  borrow  money 
and  give  security  therefor,  since  he  cannot  bind  the  estate  by  an  original  undertak- 
ing.®^ A  decree  or  order  authorizing  him  to  mortgage  realty  is  not  conclusive  on  a 
creditor  not  made  a  party,®*  and  it  may  be  collaterally  attacked  for  want  of  jurisdic- 
tion.®® 


tice — In  re  Murphy's  Estate,  30  Wash.  9,  70 
Pac.  109. 

81.  Nelson  v.  Lyster  (Tex.  Civ.  App.)  74 
S.    W.    54. 

82.  Complaint  held  sufficient  to  state  the 
existence  of  funds — Brown  v.  Bernhamer,  159 
Ind.  538.  Where  she  brings  the  action  for 
her  statutory  allowance  it  is  not  necessary 
that  she  annex  to  her  complaint  her  de- 
ceased husband's  will  giving  her  such  prop- 
erty ks  she  was  entitled  to  under  the  statute 
— Id.  The  entire  estate  should  be  assigned 
to  the  widow  as  her  statutory  allowance 
where  it  is  within  the  limit,  though  part 
of  the  land  was  the  separate  property  of 
the  husband  and  though  prior  to  his  death  a 
declaration  of  homestead  had  been  filed  by 
the  widow  alone  (Code  Civ.  Proc.  §  1469)  — 
In  re  Xeff's  Estate.   139   Cal.   71,   72  Pac.   632. 

83.  In  re  Tittel's  Estate,  139  Cal.  149.  72 
Pac    909. 

84.  Brack    v.    Boyd,    202    111.    440. 

85.  James*  Estate  v.  O'Neill  (Neb.)  97  N. 
W.   22. 

86.  Lane  v.  Thorn,  103  111.  App.   215. 

87.  Casteel  v.  Potter  (Mo.)  75  S.  W.  597. 
A  verdict  in  favor  of  a  daughter  in  an  action 
to  recover  the  property  on  the  ground  that 
the  will  which  did  not  provide  for  the  daugh- 


ter was  Invalid — De   Roche   v.   Myers    (N.   J. 
Law)    54  Atl.   558. 

88.  Phillips  v.  Presson,   172  Mo.   24. 

89.  In  such  a  case  a  purchaser  is  entitled 
to  possession  until  dower  is  assigned  or  dur- 
ing the  widow's  life  at  the  pleasure  of  the 
remaindermen — Graham  v.  Stafford,  171  Mo. 
692. 

90.  Lyons  v.  Lyons  (Mo.  App.)  74  S.  W. 
467. 

91.  A  person  appointed  by  the  county 
court  to  take  physical  possession  of  property 
under  laws  1901,  p.  201,  ch.  123,  §  2,  has  no 
capacity  as  agent  of  the  court  to  sue  to  re- 
cover assets — Smith  v.  Terry  Peak  Miners 
Union    (S.   D.)    94  N.  W.   694. 

92.  London,  Paris  &  American  Bank  v. 
Aronstein    (C.  C.  A.)    117   Fed.   601. 

93.  State  v.  Taylor  (Mo.  App.)  74  S.  W. 
1032. 

94.  So  of  land  contract  by  decedent — 
Hovorka  v.  Havlik   (Neb.)    93   N.  W.   990. 

95.  Holt  v.  Rust-Owen  Lumber  Co.  (Neb.) 
96   N.   W.   613. 

96.  Where  they  were  obliged  to  pay  $375 
for  the  unexpired  term  under  decedent's 
lease  and  sub-let  the  property  for  $225  they 
will  not  be  charged  the  difference — In  rs 
Peck,   79  App.  Div.    (N.   Y.)    296. 


J 


§  6A 


DEBTS. 


1101 


Executors  have  power  to  convert  realty  into  personalty  only  when  so  author- 
ized by  the  court  or  the  will.^  If  a  sale  is  directed  as  part  of  the  administration  by 
a  will  which  fails  to  designate  by  whom  it  should  be  made,  it  may  be  executed  by 
the  person  named  as  executor,-  but  if  the  will  fails  to  nominate  an  executor,  the 
power  cannot  be  executed  by  the  appointed  representative.^  A  personal  power  of 
sale  terminates  on  the  discharge  of  the  executor,*  and  cannot  be  exercised  by  the 
administrator  with  the  will  annexed  on  the  theory  tliat  the  direction  of  sale  operated 
as  an  equitable  conversion  into  personalty.^  If  a  personal  power  be  given  to  co- 
executors,  it  may  be  exercised  by  the  survivors,*'  but  not  by  one  of  the  executors 
alone.^  It  may  be  executed  through  an  attorney.^  The  exercise  of  a  discretionary 
power  of  sale  will  not  be  reviewed  by  the  courts.^  A  power  to  sell  for  debts  is  not 
affected  by  the  fact  that  an  action  was  pending  by  the  creditor  asking  a  settlement 
of  the  estate. ^°  The  will  governs  the  time  for  the  exercise  of  the  power  of  sale.^^ 
The  rule  of  caveat  emptor  applies  to  sales  of  executors.^-  A  deed  signed  by  an  ad- 
ministrator is  a  good  color  of  title,  though  it  does  not  purport  on  its  face  to  evi- 
dence execution  under  an  order  of  the  court.^^  Purchase-money  notes  given  to  an 
executor  cannot  be  enforced  until  due.^* 

§  6.  Dehts  and  liabilities  of  estate;  their  establishment  and  satisfaction.  A. 
Liability  of  estate. — Before  a  claim  can  be  allowed  it  must  appear  to  have  been  an 
obligation  of  the  decedent.^'     While  relationship  to  deceased  affords  a  presumption 


97.  See  ante,  §  4  B. 

98.  Hughes  v.  Treadaway,   116  Ga.   663. 

99.  That  the  order  provided  for  the  pay- 
ment only  of  certain  claims  and  not  a  rat- 
able payment  is  an  error  in  the  exercise 
of  jurisdiction  and  not  ground  for  collateral 
attack — Stambach   v.   Emerson,    139    Cal.    282, 

72  Pac.   991. 

1.  Will  held  to  confer  a  power  of  sale  on 
the  executors — Bedford  v.  Bedford  (Tenn.) 
75  S.  W.  1017;  In  re  Rowley,  38  Misc.  (N.  Y.) 
622.  Will  construed  and  held  to  confer  pow- 
er on  the  executor  to  sell  realty  for  payment 
of  debts — Mersman  v.  Worthington's  Ex'rs, 
24  Ky.  L.  R.  2115,  72  S.  W.  1094.  Will  held 
to  charge  the  expenses  of  converting  realty 
into  personalty  for  the  purposes  of  the  will 
to  be  a  charge  against  the  realty — Matthews 
V.  Tyree   (W.  Va.)    44  S.  E.   526. 

2.  It  is  error  to  appoint  the  executor  as  a 
trustee  to  make  the  sale  under  Rev.  Sts.  1898, 
§  2128 — Lawrence  v.  Barber,  116  Wis.  294. 

3.  Shannon's  Code,  §  3976,  does  not  apply 
in  such  case  but  that  power  is  devolved  on 
chancery — McElroy  v.  McElroy  (Tenn.)  73 
S.  W.   105. 

4.  Title  not  vesting  In  the  executor  as 
trustee — Boland  v.  Tiernay,  118  Iowa,  59.  By 
consenting  to  a  decree  discharging  the  ex- 
ecutor, the  devisee  is  not  estopped  from 
claiming  title  to  land  as  such,  sold  under 
power  by  the  executor  after  the  termination 
of  his  authority  as  such — Boland  v.  Tiernay, 
118   Iowa,    59. 

5.  In  Tennessee  prior  to  1851,  the  power  to 
convert  realty  into  personalty  under  a  will 
was  personal  to  the  executor  and  could  not 
be  exercised  by  the  administrator  with  the 
will    annexed — McElroy    v.    McElroy    (Tenn.) 

73  S.  W.   105;   Scott  v.  Douglas,    39  Misc.    (N. 
Y  )    555. 

6.  Bedford  v.  Bedford  (Tenn.)  75  S.  W. 
1017. 

7.  Lynch  v.  Buckley,  82  App.  Div.   (N.  T.) 

614. 

8.  Gates  v.  Dudgeon,  173  N.  Y.  426. 


9.  Bedford  v.  Bedford  (Tenn.)  75  S.  W. 
1017.  Only  parties  to  the  proceeding  can 
move  for  a  new  trial  of  objections  to  a  con- 
firmation of  sale  under  power  in  the  will — 
In  re  Richards'  Estate,  139  Cal.  72,  72  Pac. 
633. 

10.  Mersman  v.  Worthington's  Ex'rs.  24 
Ky.  L.  R.  2115,  72  S.  W.  1094. 

11.  Will  construed  as  to  the  time  of  the 
exercise  of  the  power  to  sell  particular  prop- 
erty— O'Reilly  V.  Piatt,  80  App.  Div.  (N.  Y.) 
348. 

12.  A  plea  In  an  action  on  promissory 
notes  given  In  consideration  of  a  transfer 
of  realty  that  neither  the  deceased  nor  the 
executor  had  title,  is  properly  stricken  out — 
Keen  v.  McAfee,  116  Ga.  728.  Where  the 
surviving  husband  and  executor  under  the 
will  of  the  deceased  wife  giving  him  power 
to  sell,  conveyed  to  his  second  wife  without 
consideration,  the  mortgagee  under  a  mort- 
gage executed  by  himself  ^nd  wife,  is 
chargeable  with  notice  of  his  want  of  power 
to  place  the  legal  title  In  his  wife  and  to 
mortgage  any  of  the  property  of  the  estate — 
Neary  v.  Neary  (Neb.)  97  N.  W.  302.  Pur- 
chaser from  an  agent  Is  bound  to  know  that 
he  was  authorized  to  sell — Lynch  v.  Buckley, 
82  App.  Div.  (N.  Y.)   614. 

13.  Tlie  deed  in  this  case  was  given  under 
authority  given  by  heirs  to  dispose  of  prop- 
erty at  private  sale  for  the  purpose  of  sav- 
ing time  and  expense — Street  v.  Collier  (Ga.) 
45  S.  E.  294. 

14.  In  an  action  to  recover  on  notes  giv- 
en in  consideration  of  the  transfer  of  realty, 
the  executors  can  recover  only  on  the  notes 
then  actually  due — Keen  v.  McAfee,  116  Ga. 
728. 

15.  Unless  it  appeared  that  the  defendant 
requested  that  medical  attendance  be  given 
to  his  tenants,  a  claim  therefor  against  hia 
estate  will  not  be  allowed — Baker  v.  Dawson, 
131  N.  C.  227.  A  claim  for  medical  services 
rendered  deceased's  widow  given  a  life  es- 
tate by  the  will  of  her  deceased  husband  is 


1102 


ESTATES  OF  DECEDENTS. 


§   6A 


that  services  rendered  him  are  gratuitous/*  yet  recovery  can  be  had  on  an  implied 
contract  to  pay  therefor/^  though  in  some  states  an  express  contract,  either  parol  or 
in  writing,  must  be  proved."  Stronger  proof  however  is  required  in  support  of 
claims  made  by  relatives  for  personal  services  than  is  required  on  general  claims  by 
strangers,^^  and  it  must  be  supported  by  direct  or  indirect  evidence  of  a  clear  and 
unequivocal  character.^"  An  express  agreement  of  deceased  to  pay  one  not  a  rela- 
tive may  be  shown  by  facts  and  circumstances.^^  After  establishing  the  agreement 
to  pay  the  claimant  need  not  prove  nonpa3Tnent." 

The  estate  of  deceased  joint  debtor  is  liable  only  in  the  event  that  the  surviv- 
ino-  joint  debtors  are  insolvent.^^  Counsel  fees  allowed  in  an  action  by  the  wife  for 
support  during  the  life  of  her  deceased  husband  is  a  proper  claim  against  his  estate 
after  his  death,^*  as  is  alimony  allowed  for  life  under  a  decree  entered  on  consent.^'' 
Money  received  by  a  deceased  representative,  whether  rightfully  or  not,  is  a  proper 
claim  against  his  estate.^®  Taxes  accrued  on  realty  at  the  time  of  a  conveyance 
thereof  by  deceased  is  not  a  personal  debt." 

Where  the  estate  had  received  the  benefit  of  a  tort  committed  by  the  decedent,  it 
may  be  subjected  to  liability.^^  It  cannot  however  be  charged  with  the  torts  of  the 
representatives,^^  though  committed  for  the  benefit  of  the  estate  and  under  order  of 
the  court.^*  If  the  testator  disposed  of  property  which  he  held  as  bailee,  the  execu- 
tor's possession  is  not  tortious.^^ 


not  a  proper  claim  against  his  estate,  though 
the  personal  representative  had  assets  be- 
longing to  the  life  estate  to  which  she  was 
entitled — Gray  v.  Seeley's  Estate  (Mich.)  94 
N.  W.  1061. 

16.  Woerner,  Adm'n.  §  396;  Shannon  v. 
Carter  (Mo.  App.)  72  S.  W.  495.  Before 
claim  against  the  estate  of  a  deceased  father 
for  services  rendered  by  a  child,  can  be  al- 
lowed, it  must  appear  that  such  child  had 
been  emancipated,  and  emancipation  will 
not  be  presumed — Tuohy  v.  Trail,  19  App.  D. 
C.  79. 

17.'  Shannon  v.  Carter  (Mo.  App.)  72  S.  W. 
495;  Allen  v.  Allen  (Mo.  App.)  74  S.  W.  396. 
Recovery  for  services  by  a  child,  rendered 
deceased,  can  be  had  only  from  the  time  of 
the  request  therefor  up  to  the  death — Shan- 
non v.  Carter  (Mo.  App.)  72  S.  W.  495. 

18.  Hinkle   v.    Sage,    67    Ohio    St.    256. 

19.  In  re  "Warner's  Estate.  39  Misc.  (N. 
T.)  432;  In  re  Pray,  40  Misc.  (N.  Y.)  516. 
Admissibility  of  evidence  on  the  trial  of  a 
claim  for  services,  by  a  member  of  the  fam- 
ily—Ellis V.  Baird  (Ind.  App.)  67  N.  E.  960; 
Gill  V.  Donovan,  96  Md.  518;  Allen  v.  Allen 
(Mo.  App.)  74  S.  W.  396;  by  one  not  a 
relative— Bonebrake  v.  Trauer  (Kan.)  72  Pac. 
521;  Cunningham  v.  Hewitt,  84  App. 
Div.  (N.  Y.)  114.  Evidence  held  sufficient 
to  show  an  agreement  to  pay  for  serv- 
ices rendered  by  a  niece  (Neish  v.  Gannon, 
198  111.  219)  daughter  (Shannon  v.  Carter 
[Mo.  App.]  72  S.  W.  495)  mother  during  her 
life  (Wessinger  v.  Roberts  [S.  C]  45  S.  E. 
169-  In  re  Payne's  Estate,  204  Pa.  535) 
daughter-in-law  (Allen  v.  Allen  [Mo.  App.] 
74  S  W.  396)  a  sister  (Wright  v.  Reed,  118 
Iowa  333).  Evidence  held  insufficient  to  es- 
tablish a  claim  by  a  niece  (Gaunce  v.  Barlow, 
24  Ky  L.  R.  929,  70  S.  W.  284)  cousin  (Hanly 
V  Potts  52  W.  Va.  263)  sister  (In  re  War- 
ner's Estate,  39  Misc.  [N.  Y.]  432).  Evidence 
held  insufficient  to  sustain  a  claim  for  board 

In  re  Wilmot's  Estate,  39  Misc.  (N.  Y.)  686. 

Evidence  held  insufficient  to  show  an  intent 


to  charge  for  board  and  clothing  furnished 
deceased  brother — Succession  of  Oubre,  109 
La.  516;  sufficient  to  support  a  claim  by  a 
wife  against  her  husband  for  board  before 
marriage — In  re  Hamilton,  70  App.  Div.  (N. 
Y.)  73.  A  written  document,  "i  •  •  • 
being  of  sound  mind,  desire  that  •  •  *, 
for  her  services  day  and  night  and  diligent 
nursing,  may  receive  $250  after  my  death." 
is  not  evidence  of  a  promise  to  pay  the  sum 
mentioned  nor  is  it  a  valid  testamentary 
disposition  but  the  person  mentioned  may 
only  recover  the  sum  agreed  upon  to  be  paid 
for  the  services  rendered  as  nurse — Stader- 
mann  v.  Heins,  78  App.  Div.  (N.  Y.)  563.  In- 
structions in  an  action  by  a  daugliter  to  re- 
cover held  proper — Shannon  v.  Carter,  72  S. 
W.  (Mo.  App.)   495. 

20.  Hinkle  v.  Sage,  67  Ohio  St.  256. 

21.  Oates  V.  Erskine's  Estate,  116  Wis. 
586.  Evidence  that  a  note  given  to  claim- 
ant who  held  a  confidential  relation  towards 
deceased  insufficient  to  show  that  it  was  a 
valid  obligation  against  the  estate  of  the 
maker — Varick  v.  Hitt  (N.  J.  Eq.)  55  Atl. 
139. 

22.  Ralley  v.  O'Connor,   173  N.   Y.   621. 

23.  Booth  Bros.  v.  Baird,  83  App.  Div.  (N. 
Y.)   495. 

24.  Kellogg  V.  Stoddard,  40  Misc.  (N.  Y.) 
92. 

2.'>.  Hassaurek  v.  Hassaurek's  Adm'r 
(Ohio)    67  N.  E.   1066. 

26.  Overstreet  v.  Reddick,   117  Ga.   331. 

27.  In  re  Mertens'  Estate,  39  Misc.  (X.  Y.) 
512. 

28.  An  action  will  lie  against  the  executor 
to  recover  for  iinlawfully  cutting  find  re- 
moving timber  from  public  land  by  decedent 
—United  States  v.  Bean,  120  Fed.  719. 

29.  Blum  v.  Dabritz,  78  N.  Y.  S.  207.  as 
for  the  wrongful  eviction  of  a  tenant  holding 
under  a  lease  executed  by  the  decerised — -Td. 
39  Misc.  (N.  Y.)  800.  Complaint  in  an  action 
for  tort  construed  and  held  that  a  demurrer 


§  6B 


DEBTS. 


1103 


A  covenant  of  warranty  is  personal  and  binding  on  the  representatives  of  the 
covenantor.^  ^ 

Tlie  expenses  accruing  in  the  ordinary  course  of  administration  are  proper 
items  to  be  proved.^^  While  funeral  charges  are  not,  strictly  speaking,  debts  due 
from  decedent,  they  will  be  allowed  when  reasonable  though  not  ordered  or  author- 
ized by  the  representative,^*  so  also  expenditures  for  a  monument.^^  Claims  or  de- 
mands against  decedents'  estates  generally  carry  interest,^®  but  not  compound  inter- 
est nor  is  it  to  be  computed  with  annual  rests  in  the  absence  of  specific  agreement.^' 

(6)  B.  Liability  of  heirs,  devisees,  and  legatees. — If  property  is  bequeathed 
subject  to  the  payment  of  the  testator's  debts,  the  beneficiary  takes  cum  onere.®^  It 
is  only  where  the  heirs,  devisees,  or  legatees  have  received  property  through  their 
ancestor  that  they  can  be  made  liable  for  his  debts,^^  severally  to  the  amount  each 
received  from  the  estate,*"  and  if  the  devisee  buys  in  the  land  devised  on  foreclosure 
sale  he  does  not  hold  as  devisee.*^  The  residuary  legatee  is  not  liable  for  debts  until 
he  gives  a  bond  as  such  under  the  statute.*^  The  debts  of  decedent  cannot  be  charged 
against  a  devisee  who  did  not  sign  the  agreement  between  the  devisees  to  apportion 
tlie  debts  among  themselves."*^  The  heirs  take  subject  to  liens  existing  against  the 
property.**  Taxes  accrued  or  realty  at  the  time  of  the  death  of  the  owner  are  not 
a  personal  debt  of  the  deceased  owner.*^  Taxes  accrued  before  death  of  the  testator 
on  realty  devised  in  trust  ought  to  be  paid  out  of  the  general  estate  and  not  be  made 
a  charge  on  the  lands.*'     Statutes  of  limitations  barring  rights  of  action  against  heirs 


by    the    representative    In    his    capacity    as 
such,  properly  sustained — Id. 

30.  On  refusal  of  the  executor  to  sur- 
render personalty  to  the  mortg-agee  entitled 
to  possession  thereto  under  the  contract,  he 
will  be  personally  liable — Mathew  v.  Math- 
ew,   138  Cal.   334,  71   Pac.    344. 

31.  Moran  v.  Morrill,  78  App.  Div.  (N.  T.) 
440. 

32.  An  action  for  breach  of  warranty 
against  the  administrator  of  the  deceased 
grantor  may  be  maintained  though  no  real 
assets  descended  to  the  heirs  of  the  war- 
rantor. Since  like  any  other  action  on  a 
covenant  sounding  In  damages  the  judgment 
will  be  satisfied  out  of  the  assets  whether 
personal  or  real — Wiggins  v.  Pender,  132  N. 
C.   628. 

33.  Nicholas  V.  Sands,  136  Ala.  267.  Where 
the  deceased  partner  devised  the  good  will 
and  business  to  the  survivor,  on  condition 
that  he  pay  certain  legacies,  and  if  assets 
were  insufficient  to  conduct  the  business  un- 
til there  were  sufficient  to  pay,  an  obligation 
entered  into  by  the  partnership  formed  be- 
tween the  survivor  and  his  sons  Is  not  an 
obligation  of  the  estate  of  the  deceased 
partner,  the  legatee  survivor  having  taken 
possession  as  such  and  paid  the  legacies 
r-harged — Fleming  v.  Fleming,  204  Pa.  St. 
•64S. 

34.  Foley  V.  Broeksmit  (Iowa)  93  N.  W. 
■544. 

3.';.  The  contract  for  a  monument  costing 
.1!1.050.  held  unwarranted — In  re  Smith,  75 
App.   Div.    (N.    Y.)    339 


Clift  V.   Mercer,   79   App.    Div.    (N.    T.) 
Anderson    v.    Northrop     (Fla.)     33    So. 


3«. 

369. 
37. 

419. 

38.  The  heirs  of  such  devisee  are  estopped 
from  denying  that  the  land  is  so  subject — 
Meddis  v.  Kenney  (Mo.)  75  S.  W.  633.  Where 
tostator  devised  the  entire  estate,  both  per- 


sonalty and  realty  to  the  widow,  the  land 
will  be  held  subject  to  the  payment  of  debts 
— Kiesewetter  v.  Kress,  24  Ky.  L.  R.  1239 
70   S.   W.    1065. 

39.  Where  by  agreement  between  the  rep- 
resentatives and  the  legatees  the  estate  was 
placed  in  trust  for  their  use  for  life,  no 
right  of  action  accrued  under  the  Code  of 
Civ.  Proc.  §  1837,  against  the  legatees— New 
York  V.  United  States  Trust  Co.,  78  App.  Div. 
(N.  Y.)  366.  In  Louisiana,  on  acceptance  of 
the  succession,  the  heirs  are  liable  for  the 
debts  of  decedent.  Evidence  held  insufficient 
to  show  acceptance  of  succession  by  the  heirs 
— Griffin  v.  Burris,  109  La.  216.  On  the  ac- 
ceptance of  a  residuary  legacy,  the  legatee 
after  giving  bond  as  such.  Is  liable  for  the 
payment  of  the  decedent's  debts — Pym  v. 
Pym  (Wis.)  96  N.  W.  429.  An  action  under 
Code,  §§  1837,  1860,  to  charge  decedent's 
debts  against  the  heirs  will  not  fail  simply 
because  it  appears  that  they  took  as  devisees 
— Matteson  v.  Falser,  173  N.  Y.  404.  Where 
the  deceased  mortgagor  executed  a  deed  of 
trust  reserving  the  income  for  life  and  on 
death  the  realty  to  go  to  her  children  the 
latter  cannot  be  personally  decreed  to  pay 
the  deficiency  on  mortgage  foreclosure  as 
heirs,  there  being  no  proof  of  fraudulent  In- 
tent In  making  the  conveyance  or  that  the 
property  at  the  time  was  not  sufficient  to 
pay  the  debts — Matteson  v.  Falser,  173  N.  Y. 
404. 

Haines  v.   Haines    (N.  J.   Law)    54   Atl. 


40 

401. 
41 
43 


Byrne    v.    Condon.    68    N.    J.    Law,    439. 
Under    Rev.    St.    1898.    §    3975 — Pym    v. 
Pym   (Wis.)    96  N.  W.   429. 

43.  Dauel  V.  Arnold,  201  111.  570. 

44.  liien  for  omitted  taxes — Common- 
wealth V.  Zwei.gart's  Adm'r,  24  Ky.  L.  R. 
2147,   73   S.   W.    758. 

45.  In  re  Hewitt,   40  Misc.    (N.  Y.)   322. 

46.  In  re  Doheny.  171  N.  Y.  691. 


110^ 


ESTATES  OF  DECEDENTS. 


§  6C 


or  devisees  for  liabilities  of  decedents  have  been  held  to  apply  to  suits  in  equity  as 
well  as  actions  at  law.*^  The  heir  in  an  action  against  him  on  a  claim  against  his 
ancestor  may  plead  that  it  veas  barred  as  against  the  decedent.*^  The  recovery  will 
be  limited  to  the  value  of  the  lands  inherited  in  the  condition  in  which  they  were 
at  the  time  of  the  descent  cast  where  the  heir  had  conveyed  the  land.*'  If  the  heir 
had  not  aliened  land  the  judgment  should  direct  that  the  amount  be  levied  on  the 
lands  inherited.^" 

(§  6)  C.  Exhibition,  establishment,  allowance,  and  enforcement  of  claims. — 
It  is  essential  to  the  allowance  of  a  claim  to  the  estate  of  a  decedent  that  it  be  pre- 
sented^^ in  the  form  required  by  the  statute,-"'^  but  this  does  not  apply  to  claims  by 
the  United  States.^*'  A  representative  may  by  his  acts  waive  exhibition  of  a  claim.^* 
The  general  rule  is  that  the  claim  must  be  presented  to  the  representative  before 
action  can  be  brought  thereon,^'*  but  this  applies  only  to  demands  against  decedent 
and  not  to  demands  against  his  representatives.^^  The  bringing  of  an  action  against 
the  personal  representative  in  North  Carolina,  is  a  sufificient  filing  of  the  claim.'"' 
The  failure  to  present  the  claim  within  the  statutory  time  will  bar  an  action  thereon, 
though  the  personal  representative  still  has  personalty  in  his  possession.^*  In  Ala- 
bama the  common-law  rule  that  the  mere  fact  of  want  of  notice  of  a  claim  will  not 
excuse  the  personal  representative  from  payment  if  the  assets  were  suflficient  and 
though  he  had  made  a  bona  fide  distribution  thereof  prevails.^®  A  claim  for 
interest  against  the  estate  of  a  deceased  trustee  by  the  cestui  must  be  proven  as 
an  ordinary  claim.®"  In  some  instances  claims  against  decedent's  estate  not  yet  due 
may  be  presented,*^  and  if  such  a  claim  matures  after  the  time  for  the  presentation 
of  claims  but  before  distribution  it  should  be  presented.®^  ^  contracted  indebtedness 
payable  upon  the  death  of  a  certain  person  is  not  a  contingent  claim.^^ 

A  claim  which  would  have  been  the  proper  subject  of  a  set-off  in  the  lifetime 
of  the  deceased  may  be  so  availed  of  against  his  administrator  in  enforcing  a  claim 
of  the  estate  against  the  debtor,  particularly  if  the  estate  is  insolvent,"  and  in 


47.  Maine  Rev.  St.  c.  87,  §  16.  applied  by  a 
federal  court  to  a  suit  against  a  legatee  to 
enforce  the  ancestor's  liabiUty  as  a  stock- 
holder in  a  foreign  corporation — Hale  v. 
Coffin   (C.  C.  A.)   120  Fed.  470. 

48.  Haines  v.  Haines  (N.  J.  Law)  54  Atl. 
401.  An  answer  in  an  action  against  heirs  to 
recover  a  debt  of  their  ancestor  permitted  to 
be  amended  to  conform  to  the  fact  and  relief 
granted  generally — Reid  v.  Pringle  (N.  J. 
Law)  54  Atl.  837. 

49.  .50.  Haines  v.  Haines  (N.  J.  Law)  54 
Atl.    401. 

51.  Berryhill  v.  Gasquoine,  88  Minn.  281. 
Claimant  held  guilty  of  such  negligence  as 
would  bar  right  to  have  the  estate  reopened 
for  the  purpose  of  presenting  his  claim — 
Potter  V.  Brentlinger,  117  Iowa,  536.  The 
failure  to  claim  attorney's  fees  as  stipulated 
in  the  note  by  the  deceased  maker,  and  pro- 
curing an  allowance  for  the  face  of  the  note 
with  interest,  will  operate  as  a  bar  to  an  ac- 
tion for  such  attorney's  fees — Nease  v.  James 
(Tex.  Civ.   App.)    72   S.  W.   87. 

53.  Cheairs  v.   Chealrs    (Miss.)    33  So.   414. 
In   many   states   the  claim  is   presented  by 

filing  in  the  court  of  probate.     See  post.  Pres- 
entation to  Court,  etc. 

.-.S.     United    States   v.    Bean,    120    Fed.    719. 

54.  As  by  appealing  from  Its  allowance 
by  the  probate  court — Wencker  v.  Thomp- 
son's Adm'r.   96   Mo.   App.   59. 

55.  If  the  action  is   against  the  adminis- 


trator and  heirs,  the  administrator  should 
file  an  affidavit  showing  absence  of  a  de- 
mand before  suit  together  with  the  statu- 
tory affidavit — Tichenor  v.  Wood,  24  Ky.  L. 
R.   1109,   70  S.  W.   837. 

56.  As  a  claim  for  usury  paid  the  admin- 
istrator— Crenshaw  v.  Duff's  Ex'r,  24  Ky.  L. 
R.    718.    69   S.   W.   962. 

57.  McLeod  v.   Graham,   132  N.  C.   473. 

58.  Orphan's  Court  Act,  §  75,  has  no  ap- 
plication to  an  action  to  collect  a  claim — 
Cunningham  v.  Stanford  (N.  J.  Law)  54  Atl. 
245. 

59.  Whetstone  v.  McQueen  (Ala.)  34  So. 
229. 

60.  Elizalde  v.  Elizalde,  137  Cal.  634,  66 
Pac.   369.   70   Pac.  861. 

61.  Under  Rev.  St.  c.  3,  §  67,  a  claim  un- 
der a  contract  to  pay  rent  for  an  entire  term 
with  a  provision  that  such  term  may  be 
shortened  upon  certain  contingencies,  may  be 
presented — McElroy's  Estate  v.  Brooke,  104 
111.  App.  220. 

63.  And  if  not  so  presented  the  heirs  can- 
not be  made  liable  therefor  under  Minn.  Gen. 
St.  1894,  §  5918,  et  seq. — Hunt  v.  Burns 
(Minn.)    95  N.  W.   1110. 

63.  Brown's  Ex'r  v.  Dunn's  Estate  (Vt.) 
55  Atl.  364. 

64.  Helms  v.  Harclerode.  65  Kan.  736.  70 
Pac.  866.  Where  the  deceased  before  death 
agreed  that  an  account  stated  be  credited  on 
the  note  held   against  accountant,  the   latter 


§  6C 


DEBTS. 


1105 


euch  case  it  need  not  have  first  been  presented/'  otherwise  if  the  estate  is  solvent.®' 
A  claim  against  a  decedent,  however,  cannot  be  set  off  against  a  claim  under  a 
contract  with  the  representative,^^  or  against  a  judgment  against  claimant  for  the 
conversion  of  decedent's  assets.®^ 

On  the  question  of  whether  debts  secured  by  mortgage  must  be  presented  before 
the  security  can  be  enforced,  the  decisions  are  conflicting.  In  New  York  and 
Missouri  they  need  not  be  presented,®^  but  in  Pennsylvania  and  Texas  the  contrary 
holds.^" 

A  judgment  obtained  against  a  decedent  during  life  must  be  exhibited,"  but  it 
need  not  be  filed  until  after  it  has  been  affirmed  on  appeal.'^^ 

Special  statutes  of  limitation. — The  time  within  which  claims  may  be  filed  or 
presented  against  an  estate  has  been  fixed  in  most  jurisdictions  by  statute,^-^  which 
must  be  complied  with  to  prevent  a  bar,''*  and  such  statutes  have  been  held  to  apply 
to  claims  of  nonresidents,'^'  and  to  begin  to  run  from  the  time  of  the  publication  of 
the  notice  of  the  appointment  of  the  representative.^®  Because  the  administrator 
had  not  filed  an  inventory'^''  or  an  appeal  from  the  probate  of  the  will  was  pending  is 
not  an  excuse  for  failure  to  present  the  claim  within  the  statutory  time,^^  and 
merely  because  the  estate  is  not  settled  is  not  ground  for  equal  relief  on  a  barred 
claim.^® 

An  action  to  enforce  a  claim  is  barred  if  not  brought  within  the  statutory  time** 
after  presentation  and  disallowance*^  or  waiver  of  presentation,*^    The  statute  has 


may  plead  It  In  an  action  on  the  note  with- 
out first  presenting  it  to  the  probate  court — 
Parker  v.  Wells   (Neb.)   94  N.  W.  717. 

65.  Hall  V.  Greene   (R.  I.)    52  Atl.   1087. 

66.  Troup  V.  Mechanics'  Nat.  Bank,  24  R. 
I.  377. 

67.  Hancock  v.  Hancock's  Adm'r,  24  Ky. 
L.  R.  664,  69  S.  W.  757. 

68.  Particularly  where  the  estate  is  In- 
solvent— Succession  of  Gragard  (La.)  34  So. 
742,   743. 

69.  In  re  Badle,  39  Misc.  (N.  T.)  117.  A 
claimant  must  first  exhaust  his  mortgage  se- 
curity on  land  before  payment  can  be  made 
out  of  the  general  fund,  whether  the  mort- 
gage was  executed  or  assumed  by  the  de- 
ceased. Mo.  Rev.  St.  1899,  §  191.  Will  con- 
strued and  held  to  intend  that  the  debt  se- 
cured be  paid  out  of  the  general  fund — 
Knight  V.  Newkirk,  92  Mo.  App.  258. 

70.  Where  realty  Is  subject  to  adminis- 
tration, it  is  necessary  to  preserve  a  mort- 
gage lien  thereon  that  it  be  presented  to  the 
peiBonal  representative  of  the  deceased 
mortgagor  for  allowance,  though  given  to 
secure  the  purchase  money;  and  though  it 
provides  that  on  default  the  trustee  might 
sell,  notwithstanding  the  death  of  the  mort- 
gagor— Texas  Loan  Agency  v.  Dingee  (Tex. 
Civ.  App.)  75  S.  W.  866.  A  claim  for  attor- 
ney's fees  as  provided  in  the  mortgage  may 
be  allowed — In  re  Rowe's  Estate,  22  Pa. 
Super.  Ct.  597. 

71.  Wencker  v.  Thompson's  Adm'r,  96  Mo. 
App.  59.  It  is  error  to  direct  that  an  execu- 
tion issue  to  enforce  a  judgment  on  a  claim 
which  had  been  appealed — Bennett's  Estate 
V.  Taylor  (Neb.)  96  N.  W.  669.  Where  an  In- 
solvent estate  was  being  administered  under 
a  will  independent  of  the  court,  judgments 
against  decedent  cannot  be  enforced  by  exe- 
cution, since  in  such  case  the  representative 
holds  the  property  in  trust  for  the  benefit  of 
all  creditors — Farmers',  etc..  Nat.  Bank  v. 
Bell   (Tex.   Civ.  App.)    71   S.  W.   570. 

Curr.   Law — 70. 


73.     Ryans  v.   Boogher,   169   Mo.   673. 

73.  After  the  expiration  of  twelve  months 
from  the  granting  of  administration  on  the 
estate  of  a  deceased  partner  all  claims  of 
the  surviving  partner  arising  out  of  part- 
nership transactions  are  barred — Willis  v 
Sutton,  116  Ga.  283.  A  claim  for  services 
rendered  as  attorney  in  procuring  probate 
of  a  will  accrues  on  the  probate  of  the  will 
— Taylor  v.  Crook,  136  Ala.  354. 

74.  Kornegay  v.  Mayer,  135  Ala.  141.  The 
indorsement  by  the  clerk  that  the  claim  is 
allowed  and  registered  is  insufficient — 
Cheairs  v.   Cheairs    (Miss.)    33  So.  414. 

T5.  Hale  v.  Coffin  (C.  C.  A.)  120  Fed.  470 
114   Fed.   567. 

76.  The  time  begins  to  run  from  the  time 
of  the  publication  of  a  notice  of  appointment 
as  administrator  de  bonis  non  and  not  from 
the  time  of  the  appointment  of  the  executor, 
who  did  not  publish  notice  of  the  appoint- 
ment— Lynch  v.  Farnell,   24   R.  I.   496. 

77.  Particularly  where  the  assets  of  the 
estate  were  shown  by  the  guardian's  report 
and  the  administrator's  application  for  ap- 
pointment— In  re  Jacob's  Estate  (Iowa)  93 
N.  W.  94. 

78.  Butler  v.   Templeton,   115  Wis.   382. 

79.  In  re  Jacob's  Estate  (Iowa)  93  N  W 
94. 

80.  An  action  to  recover  a  year's  support 
allowed  a  widow  Is  barred  if  not  brought 
within  two  years.  It  is  therefore  no  ground 
for  exception  to  the  Inventory  of  the  assets 
that  the  claim  for  a  year's  allowance  against 
her  deceased  husband's  estate  was  not  in- 
cluded— In  re  Glenn's  Estate,  23  Ohio  Circ. 
R.  397;  Tuohy  v.  Trail,  19  App.  D.  C.  79*. 
Claim  held  barred  under  the  facts — Melton  v' 
Martin    (Mont.)    72    Pac.    414. 

81.  Miller  v.  Ewing,  68  Ohio  St.  176;  In 
re  Glenn's  Estate,  23  Ohio  Circ.  R.  397.  After 
rejection  of  a  claim  by  representatives  the 
creditor  must  consent  to  a  hearing  thereon 
in    court    within    the    statutory    time    (N.    Y. 


1106 


ESTATES  OF  DECEDENTS. 


§  6C 


been  held  to  apply  to  scire  facias  to  revive  an  action  against  the  representatives  of 
a  deceased  defendant.®^ 

Nonresidence^*  or  the  death  of  the  representative  will  not  suspend  the  running 
of  the  statute.^^  The  representative  cannot  by  any  act  waive  the  bar  of  the  statute," 
as  by  a  payment  on  account"  or  a  new  promise.**  This  rule  applies  to  the  realty 
as  well  as  the  personalty  of  the  estate.*®  In  New  Jersey  he  may  by  a  new  promise 
remove  the  bar.®" 

General  statutes  of  Umitation^'^  while  suspended  by  the  death  of  the  debtor  are 
revived  by  the  appointment  of  a  representative  of  his  estate/^  and  are  not  suspended 
by  a  presentation  of  the  claim/^  though  in  Virginia  an  order  directing  an  account 
of  debts  against  the  estate,®*  and  in  Louisiana  the  approval  of  the  representative's 
accounts  recognizing  the  claim®^  suspends  the  operation  of  the  statute. 

Presentation  to  representative. — It  is  not  necessary  that  a  claimant  shall  form- 
ally present  a  claim  evidenced  by  writing  and  require  an  indorsement  of  al- 
lowance thereon,®^  and  if  formally  presented  it  need  not  be  verified.®''  The  attorney 
for  the  estate  may  disallow  a  claim  presented  to  the  representative.®*  The  consent 
in  open  court  to  the  allowance  of  a  claim  by  an  executor  without  notice  to  his  co- 
executor  is  sufficient.®®  The  mere  failure  to  object  to  an  account  presented  is  in- 
sufficient to  show  that  the  representative  had  stated  the  account  and  relieved  the 
claimant  from  the  necessity  of  establishing  it.^  The  rights  of  a  creditor  of  an  estate 
cannot  be  prejudiced  by  failure  of  the  administrator  to  file  the  claim  within  the 
statutory  time  after  it  had  been  proved  and  allowed.* 

Presentation  to  court  having  jurisdiction  of  estate. — A  disputed  claim  may  be 
allowed  on  the  final  settlement  of  the  accounts  of  representatives  only  where  the 
parties  had  consented  to  such  hearing.*  Where  a  claim  is  presented  to  the  court 
having  jurisdiction  over  the  estate  written  pleadings  are  not  necessary,*  nor  do 
the  rules  governing  pleading  apply.°  If  the  demand  is  filed  in  such  form  as  to  un- 
mistakably disclose  the  nature  of  the  transaction  which  gave  rise  to  it  it  is  suffi- 
cient.^ A  waiver  of  a  notice  of  claim  by  the  representative  is  a  waiver  of  the  ob- 
jection to  the  sufficiency  of  its  presentment  to  the  court.''     Since  written  pleadings 


Code  Civ.  Proc.  §  1822) — In  re  Brown,  76  App. 
Div.    (N.  Y.)    185. 

82.  If  the  waiver  was  by  appeal  from  al- 
lowance by  the  court,  the  day  of  appeal  will 
be  considered  the  date  of  presentation — 
Wencker  v.  Thompson's  Adm'r,  96  Mo.  App. 
59. 

83.  Green  v.  Barrett,  123  Fed.   349. 

84.  Va.  1887.  §  2933  does  not  apply — Kes- 
terson  v.  Hill  (Va.)   45  S.  E.   288. 

83.  Pub.  St.  c.  189,  §  8,  limiting  the  time 
In  which  action  should  be  brought  to  three 
years  of  the  granting  of  letters,  applies  to 
the  original  granting  of  letters,  and  not  to 
the  time  of  granting  of  letters  de  bonis  non 
— Thompson  v.  Hoxsie,  24  R.  I.  493. 

86.  Cockrell  v.  Seasongood  (Miss.)  33  So. 
77;  Miller  v.  Ewing,   68  Ohio  St.  176. 

87.  Lynch  v.  Farnell,  24  R.  I.   496. 

88.  89.  Findley  v.  Cunningham  (W.  Va.) 
44  S.  E.  472. 

90.  Hewes  v.  HurfT  (N.  J.  Err.  &  App.)  55 
Atl.   275. 

91.  See  generally  the  title  Limitation  of 
Actions. 

92.  The  general  statute  will  apply  where 
the  court  had  fixed  no  time  for  the  presenta- 
tion of  claims — ^Appeal  of  Mason,  75  Conn. 
406. 


93.  MacNeill  v.  Gallagher.   24  R.  I.    490. 

94.  Robinett's  Adm'r  v.  Mitchell  (Va.)  46 
S.  E.  287. 

93.     Succession   of  Willis,   109   La.   281. 

96.  If  he  presents  the  writing  and  re- 
quires a  partial  payment  giving  the  admin- 
istrator time  for  payment  of  the  balance  is 
sufficient — Miller  v.  Ewing,  68  Ohio  St.  176. 

97.  Nicholas    v.    Sands,    136    Ala.    267. 

98.  Miller   v.    Ewing,    68    Ohio    St.    176. 

99.  Cross   V.   Long   (Kan.)    71   Pac.   524. 
1.     Withers  v.  Sandlln   (Fla.)  32  So.  829. 

3.  Under  Cal.  Civ.  Code,  §  1497 — Bell  v. 
Mills   (C.  C.  A.)    123  Fed.   24. 

3.  N.  T.  Code  Civ.  Proc.  §  1882.  provides 
that  a  written  consent  by  both  parties  for 
such  a  hearing  may  be  filed — In  re  Warner's 
Estate,    39    Misc.    (N.    T.)    432. 

4.  Thomson   v.    Barker,    102    111.    App.    304. 

5.  Stanley's  Estate  v.  Pence  (Ind.)  66  N. 
E.  51.  The  denial  of  motion  to  compel  claim- 
ant to  make  his  petition  more  definite  and 
certain  after  a  trial,  held  not  prejudicial  er- 
ror— Bonebrake  v.  Tauer  (Kan.)   72  Pac.  521. 

6.  Claim  held  to  evidence  sufficient  per- 
sonalty— Monumental  Bronze  Co.  v.  Doty 
(Mo.  App.)    73  S.  W.   234. 

7.  Monumental  Bronze  Co.  v.  Doty  (Mo. 
App.)  73  S.  W.  234. 


§6C 


DEBTS. 


1107 


are  not  required  effect  may  be  given  to  the  statute  of  limitations  though  not  raised 
by  objection  or  pleading.* 

The  jurisdiction  of  the  probate  courts  over  disputed  claims  depends  upon  the 
statutes  creating  them.  In  Illinois,  Missouri  and  Texas  they  are  given  general 
jurisdiction  over  all  claims  both  legal  and  equitable/  in  New  York  the  surrogate's 
jurisdiction  is  ousted  by  raising  issues  of  f act^**  or  equitable  defenses."  A  statutory 
reference  of  a  claim  in  New  York  bars  all  further  proceeding  thereon  in  the  surro- 
gate's court."  The  probate  court  in  Iowa  has  no  jurisdiction  to  determine  the 
individual  liability  of  heirs  on  a  contract  made  by  the  personal  representative  of 
the  estate.^' 

Neither  party  is  entitled  to  a  jury  trial,"  though  issues  of  fact  may  be  sent  to 
a  jury.^** 

Claims  against  decedent's  estate  should  be  allowed  only  when  established  by 
satisfactory  evidence."  Admissions  by  heirs  of  deceased  are  not  evidence  of  indebt- 
edness against  the  estate."  If  the  claim  has  been  established  the  representatives 
have  the  burden  of  proving  pa3Tnent,"  even  though  the  claimant  did  not  prove  his 
allegation  of  nonpayment."  The  objecting  party  has  the  burden  of  showing  that 
the  claim  allowed  but  not  paid  by  the  representative  is  invalid.^" 

The  allowance  of  a  claim  by  the  probate  court  makes  the  claimant  a  judgment 
creditor  of  the  estate,^^  and  entitled  to  a  lien  against  the  property.^^ 

The  decree  is  conclusive  as  to  the  matters  in  issue  and  on  the  parties  brought 
into  the  proceedings,^'  and  on  the  creditors  not  made  parties,'**  unless  impeached  for 


8.  Under  Code  Civ.  I>roc.  N.  T.  §  2718, 
pleadings  are  not  required  on  a  reference  of 
a  rejected  claim — Simons  v.  Steele,  82  App. 
Div.  (N.  Y.)  202;  McBride  v.  Ulmer,  30  Ind. 
App.  154;  Wencker  v.  Thompson's  Adm'r,  96 
Mo.  App.   59. 

9.  Thomson  v.  Barker,  102  111.  App.  304. 
A  claim  as  remaindermen  against  the  estate 
of  a  deceased  life  tenant  is  enforceable  in 
the  probate  court — Deiterman  v.  Ruppel,  200 
111.  199.  A  claim  for  damages  under  a  con- 
tract by  a  decedent  to  hold  claimants  harm- 
less from  damage  by  fire  may  be  determined 
by  the  probate  court.  Under  Rev.  St.  Mo. 
1899,  §  192 — Wabash  R.  Co.  v.  Ordelhelde,  172 
Mo.  436.  The  district  court  had  jurisdiction 
to  determine  the  validity  of  a  trust  deed  giv- 
en to  secure  it — Ryon  v.  George  (Tex.  Civ. 
App.)  75  S.  W.  48.  The  district  court  has 
no  original  jurisdiction  to  allow  claims 
against  the  estate  of  a  decedent — Craig  v. 
Anderson   (Neb.)    92  N.  "W.  640. 

10.  In  re  Huntingrton's  Estate,  39  Misc.  (N. 
T.)   477. 

11.  The  surrogate  In  New  York  can  only 
determine  to  whom  the  Judgment  claim  be- 
longs and  as  to  payments  made  thereon — 
In  re  Waifs  Estate,  39  Misc.   (N.  Y.)   74. 

12.  The  surrogate  has  no  authority  to 
render  an  affirmative  judgment  on  the  coun- 
terclaim in  favor  of  the  estate — In  re  Wil- 
mot's  Estate,   39  Misc.   (N.  Y.)   686. 

13.  In  re  Bruning's  Estate  (Iowa)  96  N. 
W.   780. 

14.  Alaska  Code,  §  823 — Esterly  v.  Rua  (C. 
C.  A.)    122   Fed.   609. 

15.  As  questions  whether  an  Interlinea- 
tion on  a  note  presented  was  written  before 
the  signature,  and  whether  there  was  a 
fiduciary  relation  between  the  parties,  such 
as  would  Impose  upon  the  creditors  the  bur- 
den of  proving  consideration — In  re  Button's 
Estate,   205  Pa.   244.     Personal  property  act, 


§  7  does  not  deprive  personal  representatives 
of  such  right — Montgomery  v.  Boyd.  78  App. 
DIv.   (N.  Y.)   64. 

16.  Kingan  &  Co.  v.  Burns'  Estate,  104  111. 
App.  661.  Particularly  where  the  claim  cov- 
ers a  long  period  of  time — Hart  v.  Tulte,  75 
App.  Dlv.  (N.  Y.)  323.  Admissibility  of  evi- 
dence— Crampton  v.  Newton's  Estate  (Mich.) 
93  N.  W.  250.  The  ex  parte  affidavit  of  claim- 
ant's agent  is  Insufficient  to  support  an  al- 
lowance of  a  disputed  claim — Kingan  &  Co. 
V.  Burns'  Estate,  104  111.  App.  661.  On  suffi- 
ciency of  evidence  to  support  claim  see — 
Galloway's  Adm'r  v.  Galloway,  24  Ky.  L.  R. 
857,  70  S.  W.  48;  Allsop  v.  Deposit  Bank  of 
Owensboro,  24  Ky.  L.  R.  762,  69  S.  W.  1102; 
Simpson  v.  Scheutz  (Ind.  App.)  67  N.  E.  457; 
Curd  V.  Wissler  (Iowa)  95  N.  W.  266;  In  re 
Wllmot's  Estate,  39  Misc.  (N.  Y.)  686;  Suc- 
cession of  Alexander  (La.)   35  So.  273. 

17.  Kornegay  v.  Mayer,  135  Ala.  141. 

18.  Best  V.  Best's  Adm'r,  25  Ky.  L.  R.  93, 
74  S.  W.  738.  Evidence  of  payment  held  ad- 
missible under  the  issue — Garretson  v.  Kln- 
kead,  118  Iowa,  383.  Evidence  held  sufficient 
to  show  that  claimant's  claim  had  been  paid 
by  decedent — Cummings  v.  Lynn  (Iowa)  96 
N.  W.  857. 

Hurley  v.  Ryan,  137  Cal.  461,  70  Pac. 


19. 

292. 
20. 
21. 


In  re  Knab,  38  Misc.  (N.  Y.)  717. 

Under  Rev.  St.  Mo.  1899,  §§  192,  1580, 
3713 — Funk  v.  Seehorn  (Mo.  App.)  74  S.  W 
445. 

22.  Funk  V.  Seehorn  (Mo.  App.)  74  S.  W 
445. 

23.  If  a  creditor  presents  his  claim  before 
the  commissioner  appointed  in  suit  by  ad- 
ministrator under  W.  Va.  Code  1899,  c.  86,  g 
7,  the  decree  on  demand  is  confusing  as  to 
the  claimant  and  the  representative  and  the 
party  purchasing  land  of  the  estate  under 
the  decree  made — Hurzthal  v.  St.  Lawrence 


1108 


ESTATES  OF  DECEDENTS. 


§  6C 


fraud,  accident  or  mistake."  The  rejection  of  a  claim  not  presented  in  statutory 
form  is  not  an  adjudication  which  would  bar  a  subsequent  action  thereon.^' 

The  surrogate's  court  must  have  heard  evidence  and  made  findings  of  fact 
to  sustain  the  validity  of  a  decree  in  a  statutory  proceeding  to  direct  payment  of  a 
claim.-' 

The  personal  representative  can  obtain  a  review  of  an  allowance  of  a  claim^* 
only  by  giving  the  statutory  bond,"  and  it  is  his  duty  to  follow  the  appeal  when  tak- 
en by  claimant  without  further  or  other  notice  than  the  taking  and  the  perfection  of 
the  right  to  appeal.^"  The  claim  is  usually  tried  anew  on  appeal  without  further  or 
formal  pleadings."  The  finding  on  conflicting  evidence  will  not  be  disturbed  on 
appeal.^^ 

Actions  and  suits  to  enforce  claims. — In  New  Jersey,  an  action  to  enforce  a 
claim  cannot  be  commenced  until  six  months  after  the  granting  of  letters.^^  It  is 
not  an  essential  condition  precedent  to  an  action  on  a  rejected  claim  that  it  be  filed.^* 
A  resident  creditor  of  a  nonresident  decedent  may  sue  to  subject  decedent's  interest 
in  personalty  which  had  been  fraudulently  transferred  and  which  was  situate 
within  the  state,^'*  and  a  judgment  creditor  whose  judgment  was  enforceable  against 
the  estate  if  there  were  assets  in  the  hands  of  the  personal  representative  may  main- 
tain a  proceeding  in  aid  of  his  execution  to  subject  money  in  the  hands  of  the  debtors 
of  the  estate.^'  To  aU  actions  wherein  a  claim  against  an  estate  is  sought  to  be 
proved,  as  an  action  by  a  creditor  to  subject  property  fraudulently  conveyed,  the 
representative  is  a  necessary  party,"  but  it  is  not  error  to  refuse  to  direct  the  joinder 
of  an  insolvent  co-executor.^^    To  a  suit  to  determine  the  validity  of  a  trust  deed 


Boom  Co.  ("W.  Va.)  44  S.  E.  520.  And  In  an 
action  to  avoid  a  fraudulent  conveyance  by 
the  decedent,  the  allowance  of  a  claim  based 
on  a  promissory  note,  cannot  be  collaterally 
attacked  on  the  ground  that  the  note  was 
without  consideration — Clark  v.  Thias,  173 
Mo.  628.  The  decree  of  the  District  Court  of 
Alaska  on  a  claim  by  a  surviving  partner 
against  the  estate  of  a  deceased  partner  on 
pleadings  regularly  filed,  will  be  regarded  as 
a  decree  in  suit  of  equity  settling  the  part- 
nership accounts — Esterly  v.  Rua  (C.  C.  A.) 
122  Fed.  609. 

24.  Since  upon  the  allo-wance  any  creditor 
feeling  aggrieved  could  appeal.  Such  a  judg- 
ment therefore  cannot  be  vacated  at  a  subse- 
quent term — Ford  v.  First  Nat.  Bank,  201  111. 
120.  The  county  court's  classification  of  a 
claim  in  a  judgment  of  allowance  is  conclu- 
sive.— Id. 

25.  Ford  V.   First  Nat.  Bank,   201   111.   120. 

26.  In  the  federal  court  (Ball.  Ann.  Codes 
&  St.  Wash.  §§  6226,  6230,  6233) — United 
States  V.  Fidelity  Trust  Co.  (C.  C.  A.)  121 
Fed.  766. 

27.  As  where  an  issue  was  raised  by  the 
answer  of  executor  to  a  proceeding  by  a 
creditor  to  compel  payment,  under  Code  Civ. 
Proc.  §  2722,  as  to  funds  in  their  hands  ap- 
plicable to  such  payment — In  re  Sherwood's 
Estate.  75  App.  Div.   (N.  Y.)    342. 

28.  If  the  order  was  made  in  the  absence 
of  the  administrator  where  no  answer  or 
objection  was  filed  against  the  claim,  the 
administrator  may  bring  error  against  the 
allowance  under  Code  Civ.  Proc.  §  5S0 — Her- 
man V.   Beck   (Neb.)    94  N.  W.   512. 

29.  Rev.  St.  Ohio,  §  6408,  authorizing  the 
trustee  to  appeal  without  bond  does  not  ap- 
ply to  an  executor  appealing  on  accounting, 
and  notice  of  an  intention  to  take  an  appeal 


is  Insufficient — Downing  v.  Downing,  23  Ohio 
Clrc.  R.  389.  In  order  to  entitle  one  to 
appeal  from  the  decision  of  the  commissioner 
of  claims,  it  is  essential  that  the  bond  re- 
quired be  approved  by  the  judge  of  probate 
before  it  is  filed  (Comp.  Laws  Mich.  §§  9386. 
9387.  9395) — Bartlett  v.  Frazer  (Mich.)  95  N. 
W.  721. 

30.  Ford  V.  First  Nat.  Bank.  201   111.  120. 

31.  Wencker  v.  Thompson's  Adm'r,  96  Mo. 
App.  59.  New  defenses  such  as  pleas  of  nor. 
est  factum  and  nil  debet  to  a  claim  against 
deceased  surety  on  a  bond  or  objections 
cannot  be  Interposed, — thus  an  objection  to 
a  claim  against  estate  of  deceased  surety 
that  it  did  not  include  the  name  of  one  of 
the  sureties;  the  description  of  the  bond  be- 
ing sufficiently  specific  so  that  the  claim 
would  constitute  a  bar  to  another  suit — 
Thomson  v.  Black,   200  111.   465. 

32.  In  re  Young's  Estate.  204  Pa.   32. 

33.  In  New  Jersey  it  is  held  that  the  stat- 
ute does  not  apply  to  an  action  to  foreclose 
a  mortgage  on  decedent's  land — Ayres  v. 
Shepherd,  64  N.  J.  Eq.   166. 

34.  Only  claims  allowed  need  be  filed — 
Saxton   V.   Musselman    (S.   D.)    95    N.   W.    291. 

35.  The  refusal  of  the  foreign  representa- 
tive to  take  out  ancillary  letters  will  be  con- 
strued as  a  refusal  to  sue — Montgomery  v. 
Boyd,   78  App.  Div.    (N.  Y.)   64. 

36.  Rev.  St.  Ohio,  §  5464,  permitting  such 
actions  in  aid  of  execution,  applies  to  estates 
of  decedents — Lauer  v.  Smith,  24  Ohio  Circ. 
R.    47. 

37.  Montgomery  v.  Boyd,  78  App.  Div.  (N. 
Y.)   64. 

3S.  Roblnett's  Adm'r  v.  Mitchell  (Va.)  46 
S.  E.  287. 


§  6E 


DEBTS. 


1109 


rejected  as  a  claims  tlie  trustee  is  not  a  necessary  party,'®  and  a  plea  of  limitations 
if  not  an  admission  of  the  validity  of  the  claim.***  The  judgment  on  a  claim  against 
the  estate  need  not  state  that  it  be  paid  in  due  course  of  administration."  A 
judgment  against  a  representative  as  representative  is  a  personal  judgment  against 
him." 

(§6)  D.  Classification,  preferences,  and  priorities.*^ — All  valid  existing 
liens  on  personalty,  as  a  chattel  mortgage,  should  be  first  paid  out  of  the  proceeds.** 
The  attorney  of  the  representative  has  not  a  lien  on  the  estate  for  services  ren- 
dered,*' nor  is  a  physician  entitled  to  priority  of  payment  for  services  rendered 
the  family  of  deceased.*®  A  statute  making  funeral  expenses  a  prior  claim  against 
the  assets  does  not  apply  to  estates  in  the  course  of  administration  at  the  time  of 
its  passage.*^  The  decedent's  debts  are  entitled  to  priority  over  debts  of  another 
assumed  by  the  will.** 

The  allowance  for  a  year's  support  to  the  widow  is  entitled  to  priority  over 
a  landlord's  lien.*'  A  mortgage  debt,  whether  for  purchase  money  or  not,  is  en- 
titled to  priority  over  the  widow's  exemption."**  Out  of  the  proceeds  of  the  sale 
to  pay  debts,  the  widow  is  entitled  first  to  have  set  apart  to  her  the  deficiency  in 
the  homestead  allotted.'*^  A  legatee  is  entitled  to  priority  of  pa}Tnent  of  his  legacy 
out  of  the  surplus  proceeds  from  a  sale  of  the  homestead  under  a  mortgage  fore- 
closure as  against  decedent's  general  creditors."^ 

A  lien  on  property  is  not  waived  by  presenting  the  amount  of  the  claim."^ 
The  court  making  the  ancillary  appointment  is  without  jurisdiction  to  deter- 
mine the  insolvency  of  a  nonresident  decedent  and  direct  a  surrender  of  the  assets 
to  the  principal  administrator  so  that  all  creditors  would  receive  an  equal  per- 
centage of  their  claims.®* 

Proceedings  for  reclassification  can  only  be  maintained  by  creditors." 

(§6)     E.    Funds,  assets,  and  securities  for  payment. — All  the  property  of  the 

deceased  not  exempt  is  subject  to  the  payment  of  his  debts,  though  the  residuary 

legatee  gave  bond  as  such  under  the  statute,"*®  but  the  personalty  should  first  be 

subjected.''^     Property   fraudulently   conveyed   by   decedent   may   be   subjected."* 


39.  Pym  v.  Pym    (Wis.)   96  N.  W.  429. 

40.  Succession  of  Oubre,  109  La,  516. 

41.  Particularly  where  the  action  was 
broug-ht  in  the  federal  court  on  a  claim 
against  the  deceased  as  a  surety  on  a  federal 
official  bond;  in  such  case  it  will  be  paid 
according-  to  the  laws  of  the  state  and  sub- 
ject to  the  priority  given  by  U.  S.  Rev.  St.  §§ 
3466,  3467 — Smythe  v.  United  States,  188  U. 
S.  156. 

42.  To  bind  the  estate  it  must  direct  that 
the  recovery  is  to  be  levied  on  the  goods  and 
chattels  of  the  estate — Thompson  v.  Mann 
(W.  Va.)    44  S.   E.   246. 

43.  The  widow's  election  to  take  her 
award  in  money  on  approval  by  the  court 
constitutes  it  a  claim  of  the  second  class — 
Lane  v.  Thorn,  103  111.  App.  215. 

44.  Baker   v.   Becker    (Kan.)    72    Pac.    860. 

45.  Waite  V.  Willis,  42  Or.  288,  70  Pac. 
1034. 

46.  Baker  v.  Dawson.  131  N.  C.  227. 

47.  In  re  Kalbfleisch's  Estate,  78  App. 
Div.    (N.    Y.)    464. 

48.  As  where  the  husband  directed  pay- 
ment of  his  widow's  debts  after  her  death — 
Hallock  V.  Hallock,  79  App.  Div.   (N.  Y.)   508. 

49.  In  re  Laurence's  Estate  (Tex.  Civ. 
App.)   74  S.  W.  779. 

50.  In  re  Rowe's  Estate,  22  Pa.  Super.  Ct. 
597.     The  holder  of  a  pre-existing  lien  on  the 


realty  of  decedent  may  have  a  decree  setting 
apart  such  realty  to  the  widow  set  aside  and 
have  the  land  sold  to  enforce  his  lien;  such 
setting  aside  the  property  to  the  widow  is 
not  a  partition  and  distribution  of  the  estate 
so  as  to  divest  the  court  of  authority  to 
charge  the  property  with  a  lien — Wade  v. 
Freese   (Tex.  Civ.  App.)   71  S.  W.  69. 

51.  Shea  v.  Shea's  Adm'r,  24  Ky.  L.  R. 
1702,   72  S.  W.   7. 

52.  Under  Rev.  Sts.  1898,  §5  2271,  3R62, 
the  will  not  making  debts  a  charge — Kuener 
V.  Prohl  (Wis.)   97  N.  W.  201. 

53.  Mathew  v.  Mathew,  138  Cal.  334,  71 
Pac.    344. 

54.  Lewis  V.  Rutherford  (Ark.)  72  S.  W. 
373. 

55.  Petition  showing  allowance  of  peti- 
tioner's claim  by  the  probate  court  held  suf- 
ficient to  show  a  petitioner  a  creditor — Ford 
V.   First  Nat.  Bank.   201  111.  120. 

56.  Rev.  St.  1898,  §  3795 — Pym  v.  Pym 
(Wis.)    96  N.  W.  429. 

57.  The  liability  on  a  contract  relating  fo 
the  use  of  certain  realty  cannot  be  satisfied 
from  the  rents  of  the  realty,  where  the  per- 
sonal estate  is  sufficient  for  the  payment  «< 
debts — Baptist  Female  University  v.  Bordet-. 
132  N.  C.  476. 

58.  Tyndale  v.  Stanwood,  182  Mass.  634. 


1110 


ESTATES  OF  DECEDENTS. 


§  6F 


Accretions  arising  on  personalty  subsequent  to  the  death  of  intestate  may  be  applied 
towards  payment  of  debts  and  expenses/"  and  creditors  entitled  to  the  proceeds  of 
the  sale  are  entitled  to  the  accretions  arising  from  the  investment  of  such  fund 
between  the  time  of  sale  and  distribution.^"  The  proceeds  of  realty  sold  under  di- 
rection in  the  will  are  personalty  subject  to  the  payment  of  testator's  debts/^  though 
the  sale  was  directed  merely  for  the  purpose  of  distribution  or  payment  of  legacies/^ 
and  though  the  realty  sold  was  situated  without  the  state  f^  but  a  discretionary 
power  to  sell  or  divide®*  or  a  power  of  sale  for  the  purpose  of  making  division, 
does  not  effect  a  conversion  of  the  realty  and  personalty  so  as  to  subject  it  to  the 
payment  of  debts.®^  If  there  is  sufiBcient  property  not  specifically  devised  resort 
cannot  be  had  against  specific  devises  for  payment  of  debts  of  the  testator/® 
and  before  a  specific  devise  can  be  subjected,  realty  devised  to  the  widow  who 
elected  to  take  her  statutory  distributive  share  must  first  be  resorted  to.®^  A  specific 
legacy  less  the  "expenses  of  administration"  is  not  subject  to  the  representative's 
commissions  or  transfer  taxes.®*  Unless  the  debts  are  charged  against  the  realty 
both  realty  and  personalty  being  specifically  devised,  both  should  contribute  ratably.®' 

(§6)  F.  Payment  and  satisfaction.'"^ — Generally  payment  of  claims  should 
be  made  only  after  allowance  and  authorization  by  the  court,''^  but  if  by  a  compromise 
without  authority  the  estate  was  benefited,  the  representative  will  be  allowed  the 
payment.'^  The  partial  payment  of  claims  may  be  decreed  though  the  estate  is  in- 
solvent and  no  judicial  settlement  of  the  administrator's  accounts  has  been  had.''* 
It  is  not  an  objection  to  the  payment  of  claims  of  petitioning  creditors  that  other 
creditors  not  joined  may  contest  the  allowance  on  the  final  settlement  of  the  admin- 
istrator's accounts.''* 

§  7.  Subjection  of  realty  to  payment  of  delts  under  order  of  court.  A.  Right 
to  resort  to  realty. — Whether  decedent's  realty  may  be  subjected  to  the  pa3mient  of 
the  debts  of  decedent  must  be  determined  by  the  laws  of  the  state  wherein  the 
property  is  situated.''^  Generally  it  can  be  resorted  to  for  the  purpose  of  creating 
a  fund  with  which  to  pay  the  debts  of  the  decedent,'®  but  only  where  there  is  an 
insufficiency  of  personal  assets,'^''  and  the  existence  of  debts  and  insufliciency 
of  personalty  may  be  shown  by  a  decree  of  insolvency.'^*  If  an  imperative  power  to 
sell  to  pay  debts  is  given  by  the  will,  the  statutory  right  should  not  be  resorted 
to,"  otherwise  if  the  power  is  discretionary.*"* 


69.  As  life  tenant  In  the  personalty  of  his 
deceased  intestate  wife  the  husband  is  not 
entitled  to  Interest  accruing  on  a  judgment 
in  favor  of  the  wife  accruing  after  her  death 
but  only  to  the  income  of  the  surplus  person- 
alty after  payment  of  debts  and  expenses  of 
the  administration — Hunter  v.  Hersperger,  96 
Md.   292. 

60.  In  re  Campbell's  Estate,  22  Pa.  Super. 
Ct.  430. 

61.  In  re  Newell's  Estate,  38  Misc.  (N. 
T.)  563;  Lynch  v.  Spicer  (W.  Va.)  44  S.  E. 
255. 

62.  In  re  Newell's  Estate,  38  Misc.  (N.  Y.) 
r.63. 

63.  Though  they  were  obliged  to  take  out 
ancillary  letters  in  the  state  where  the  land 
is  situate — In  re  Newell's  Estate,  38  Misc. 
(N.  Y.)  563. 

64.  Bedford  v.  Bedford  (Tenn.)  75  S.  W. 
1017. 

65.  Taylor  v.  Crook,  136  Ala.  354. 

66.  In  re  Martin,    25  R.   I.   1. 

67.  Baptist  Female  University  v.  Borden, 
122  N.  C.  476. 

68.  In   re   Pray,    40    Misc.    (N.    Y.)    516. 


69.  "Will  construed  and  held  to  devise  per- 
sonalty specifically — Dauel  v.  Arnold,  201  111. 
570;   In  re  Martin,   25  R.  I.  1. 

70.  See  the  title  Payment  and  Tender,  as 
to  what  is  a  payment. 

71.  Consent  of  one  heir  will  not  estop  an- 
other heir  to  object  to  the  allowance — John- 
son V.  Pulver  (Neb.)   95  N.  W.  697. 

72.  In   re   Wagner,    40    Misc.    (N.    T.)    490. 
In  re  Miner's  Estate,  39  Misc.   (N.  Y.) 


In  re  Miner's  Estate,  39  Misc.   (N.  Y.) 


73. 

605. 
74. 

605. 

75.  The  court  Is  without  Jurisdiction  to 
direct  a  sale  of  decedent's  land  situate  with- 
out the  state  for  the  payment  of  debts,  since 
it  will  be  presumed,  in  the  absence  of  proof 
that  the  common  law  existed  in  that  state — 
Seldner  v.  Katz,   96  Md.   212. 

76.  Wilson  V.  Wilson,  109  La.  1075,  34  So. 
94. 

77.  Henley  v.  Johnston,  134  Ala,  646;  In 
re  Snow  (Me.)  53  Atl.  116.  It  must  be  aver- 
red and  proved  that  a  sale  Is  necessary  for 
the  payment  of  debts,  under  Rev.  Sts.  c.  71, 
§  1 — In  re  Snow  (Me.)  53  Atl.  116. 


§7B 


SALE  OF  LAND  FOR  DEBTS. 


nil 


^  Only  such  claims  as  have  been  presented"  and  not  barred  by  the  statute  of 
limitations  may  be  enforced  against  the  realty/^  though  under  the  statute  of  Mary- 
land it  is  held  that  only  claims  enforceable  against  decedent  during  life  can  be  so 
enforced.«3  rpj^g  ^.-^.j^^  ^^  ^ppl^  ^^^  ^^^^  ^^  realty  for  the  purpose  of  paying  the  ex- 
penses of  the  administrator  may  be  barred  by  lapse  of  time.«*  Taxes  not  due  are  not 
such  a  debt  as  would  justify  a  resort  to  realty.*"  Expenses  of  administration^*^ 
and  the  widow's  allowance"  are  provable  in  some  states  against  the  realty. 

The  homestead  of  a  surviving  widow^*  or  land  devised  in  lieu  of  dower  and 
homestead,  if  not  in  excess  of  her  rights  as  widow,  cannot  be  subjected  to  the  pay- 
ment of  debts,*^  though  the  value  above  the  homestead  may  be.^° 

(§7)  B.  Procedure  to  obtain  order. — Proceedings  must  be  had  before  the 
estate  is  settled.^^  Jurisdiction  is  in  the  courts  designated  by  statute.^^  rp^^^  ^^^^^ 
tion  whether  the  land  sought  to  be  sold  had  been  fraudulently  conveyed  by  the 
deceased  cannot  be  determined.®^ 

In  Alabama  the  personal  representative  alone  can  apply  for  leave  to  sell  realty 
for  the  payment  of  debts.®*  It  is  essential  that  all  persons  interested  in  the  realty 
be  made  parties,®^  including  minor  heirs®*  for  whom  a  guardian  ad  litem  must 
be  appointed.®^  The  administrator  of  an  insolvent  intestate  who  had  executed 
a  deed  of  trust  for  the  benefit  of  creditors  may  be  joined  with  the  trustees.®* 

Some  notice  is  essential.®®    Constructive  notice  may  be  sufficient.^ 

If  the  proceedings  to  obtain  leave  to  sell  are  instituted  by  order  to  show  cause, 


78.  Henley  v.  Johnston,   134  Ala.   646. 

79.  In    re    Rowley,    38    Misc.    (N.    Y.)    622. 

80.  Parker  v.  Beer,   173  N.  Y.   332. 

81.  Cheairs  v.   Cheairs   (Miss.)    33   So.   414. 

82.  Which  applies  to  a  claim  by  an  attor- 
ney for  procuring-  the  probate  of  the  will  of 
the  deceased — Taylor  v.  Crook,  136  Ala.  354. 

83.  A  claim  for  damages  for  refusal  to 
convey  under  an  option  given  by  deceased 
to  purchase  is  not  a  debt  due,  where  the  de- 
ceased died  before  the  expiration  of  the 
life  of  the  option  and  before  election  to  take 
by  claimant — McGaw  v.  Gortner,   93  Md.   489. 

84.  An  application  made  eight  years  after 
the  grant  of  letters  no  excuse  for  the  delay 
being  given  except  for  a  short  portion  of  the 
time  held  to  bar  the  application — Mackin  v. 
Hobbs,   116   Wis.   528. 

85.  Holburn  v.  Pfanmiller's  Adm'r,  24  Ky. 
L.   R.    1613,   71   S.   W.    940. 

86.  In  re  Roach's  Estate,  139  Cal.  17,  72 
Pac.  393;  Deppe  v.  Cilley  (Minn.)  94  N.  W. 
679.  An  attorney  cannot  have  the  realty 
sold  to  enforce  his  claim  for  services  in  pro- 
bating the  will — Taylor  v.  Crook,  136  Ala. 
354. 

87.  It  Is  so  expressly  provided  by  Rev. 
Sts.  1895,  arts.  2037,  2043.  under  certain  con- 
ditions which  v/ill  be  presumed  to  have  ex- 
isted in  favor  of  the  purchaser  as  against 
the  widow — Johnson  v.  Weatherford  (Tex. 
Civ.  App.)    71   S.  W.   789. 

88.  The  widow  cannot  be  estopped  to 
claim  the  land  sold  as  her  homestead.  Though 
she  failed  to  prosecute  a  proceeding  for  al- 
lotment and  abandoned  objections  to  the  pe- 
tition for  leave  to  sell  and  even  bid  for  the 
land  at  the  sale — Houf  v.  Brown,  171  Mo.  207. 
The  entire  lot  being  exempt  as  a  homestead 
for  the  widow  and  children,  the  purchaser 
thereof  at  the  administrator's  sale  cannot 
have  the  homestead  exempt  set  apart  by  ap- 
praisal.— Id.  A  will  which  devises  to  the 
widow  all  realty  and  personalty  which  should 
remain   after  payment   of  his  just  debts  and 


funeral  expenses  does  not  authorize  a  resort 
to  his  homestead  for  the  payment  of  his 
debts — Pym  v.  Pym   (Wis.)   96  N.  W.  429. 

89.  Dauel  v.  Arnold,   201   111.   570. 

90.  W.  J.  Perry  Live  Stock  Commission 
Co.  v.  Biggs  (Neb.)   94  N.  W.  712. 

91.  If  the  executrix  under  a  noninterven- 
tion will  had  settled  the  estate  a  sale  on  her 
application  to  the  probate  court  to  pay  ex- 
penses of  administration  is  void — English- 
McCaffery  Logging  Co.  v.  Clowe,  29  Wash. 
721,  70  Pac.  138. 

92.  Where  the  Judge  of  the  court  having 
probate  jurisdiction  was  disqualified  to  act, 
jurisdiction  may  be  conferred  on  the  circuit 
court  by  his  certifying  the  cause  as  author- 
ized by  Rev.  Sts.  1899,  §  1760 — Meddis  v. 
Kenney  (Mo.)  75  S.  W.  633. 

93.  The  remedy  In  such  case  is  provided 
by  Pub.  Sts.  c.  134,  §  15,  by  action  or  by  en- 
try and  taking  possession — Tyndale  v.  Stan- 
wood,  182  Mass.  534. 

94.  Henley  v.  Johnston,  134  Ala.  646.  This 
question  depends  largely  on  local  statutes 
[Editor]. 

95.  Taylor  v.  Crook,  136  Ala.  354. 

96.  Hill  V.   Taylor   (Mo.  App.)    74   S.  W.   9. 

97.  If  the  petition  for  the  appointment  Is 
not  verified  and  no  affidavit  filed  showing 
that  no  general  guardian  had  been  appointed, 
it  is  error  to  overrule  exceptions  to  the  con- 
firmation of  the  sale — Catlett  v.  Catlett's 
Adm'r,  24  Ky.  L.  R.  1986,  72  S.  W.  781. 

98.  Sufficiency  of  allegation  of  title — Rob- 
inson V.  McDowell  (N.  C.)  45  S.  B.  545. 

99.  Private  sale  on  order  without  notice  is 
void — Fussell  v.  Dennard   (Ga.)    45   S.  E.   247. 

1.  Where  the  estate  had  been  long  pend- 
ing and  the  heirs  had  constructive  notice 
provided  by  statute  an  order  of  sale  will  not 
be  set  aside  because  the  heirs  had  not  re- 
ceived a  notice  of  the  filing  of  the  petition 
for  sale — In  re  Leonis'  Estate,  138  Cal.  194, 
71  Pac.  171. 


1112 


ESTATES  OF  DECEDENTS, 


§  7C 


the  order  need  not  contain  a  description  of  the  property,^  but  if  by  petition  it  mnst 
aver  the  necessity  for  such  proceeding,"  it  must  accurately  describe  the  land  sought 
to  be  subjected,*  and  show  the  title  of  the  deceased,^  but  the  precise  character  of 
Ms  interest  need  not  be  specifically  set  out.^  It  need  not  be  averred  that  the  prop- 
ertv  is  encumbered^  If  the  parcel  of  realty  is  more  than  sufficient  to  pay  claims, 
the  petition  must  aver  that  a  sale  of  a  part  thereof  would  depreciate  the  balance.^ 

A  denial  of  the  existence  of  the  necessity  for  resort  to  the  realty  is  a  good 
answer.'  Any  heir  may  object  to  an  application  by  the  administrator  to  seU 
lands  of  the  estate,'"  nor  need  notice  of  such  objections  be  given  the  other  heirs." 
The  objection  that  the  petition  did  not  allege  that  certain  lands  described  had  been 
conveyed  by  the  devisee  in  bad  faith  must  be  raised  by  answer."  The  application 
may  be  postponed.'^  That  the  time  for  hearing  on  the  application  was  set  for  a 
day  less  than  the  statutory  time  is  a  mere  irregularity  not  invalidating  the  pro- 
ceedings.^* Where  the  mode  of  service  by  publication  is  specially  prescribed  the 
procedure  on  publication  in  ordinary  actions  is  not  applicable."  A  jury  trial  is  not 
a  matter  of  right  in  a  proceeding  to  subject  the  decedent's  lands  to  the  payment 
of  debts."  The  administrator  has  the  burden  of  proving  the  filing  or  presentment 
of  claims  under  a  plea  of  the  statute  of  nonclaim."  Admissions  by  the  heirs  of 
deceased  are  not  evidence  of  indebtedness  against  the  estate." 

(§7)  C.  The  order. — Inadequacy  of  price  is  not  ground  for  vacating  the 
order.^" 

If  an  order  of  sale  was  regularly  made  and  the  court  had  jurisdiction,  and  was 
not  appealed  from,  it  is  binding  on  alP°  on  the  question  of  necessity  for  the  sale.*^ 
That  the  notice  for  a  hearing  on  application  was  set  at  a  date  short  of  the  required 
time,^^  or  that  no  order  of  confirmation  of  sale  was  found  on  the  record  ten  years 
after  the  sale,  is  not  ground  for  a  collateral  attack  on  the  purchaser's  title  ;'*^  but 
if  the  record  discloses  that  no  notice  was  given  of  an  application  for  an  order 
directing  a  sale  the  order  authorizing  a  private  sale  is  void.^* 


2.  In  re  Roach's  Estate.  139  Cal.  17.  72 
Pac.  393. 

3.  In  re  Snow  (Me.)  53  Atl.  116.  Peti- 
tion held  sufficient — In  re  Roach's  Estate. 
139  Cal.  17.  72  Pac.  393. 

4.  A  petition  is  invalid  If  It  fails  to  indi- 
cate with  any  degree  of  accuracy  the  section, 
township  and  range — Henley  v.  Johnston,  134 
Ala.  646.  Where  the  petition  did  not  de- 
scribe the  land  and  an  order  granted  there- 
on also  failed  to  describe  the  land  a  con- 
veyance thereof  Is  void — Roberts  v.  Thom- 
ason  (Mo.)  74  S.  W.  624.  A  petition  contain- 
ing a  description,  "50  acres  on  the  east  side 
of  the  west  half  of  the  S.  E.  quarter  of  Sec- 
tion 15,  and  fractional  N.  W.  end  of  N.  E. 
quarter  of  Section  22,  in  all  •  *  *  contain- 
ing 75  acres,"  is  an  insufficient  description 
as  to  the  lands  in  Section  22 — Kornegay  v. 
Mayer,  135  Ala.  141. 

5.  Petition  held  to  sufficiently  show  title 
— Henley  v.  Johnston,  134  Ala.  646. 

6.  7.     Tyndale  v.  Stanwood.   182  Mass.   534. 

8.  In  re   Snow    (Me.)    53   Atl.   116. 

9.  Finch  v.  Du  Bignon,  117  Ga.  113.  Suf- 
ficiency of  answer — Dauel  v.  Arnold,  201  111. 
570. 

10.  11.     Grant  v.   Noel    (Ga.)    45    S.   E.    279. 
12.     Galloway  v.  Galloway  (S.  C.)   45  S.  E. 

108. 

IS.  Application  for  sale  by  administrator 
postponed  until  after  expiration  of  lease  held 
proper — Magruder  v.  Hornot  (La.)   34  So.  696. 


14.  Halght  V.  Hayes  (Neb.)   92  N.  W.  297. 

15.  Held  that  the  court  need  not  wait  un- 
til the  statutory  time  after  publication — In 
re  Roach's  Estate,  139  Cal.  17,  72  Pac.  393. 
Code  Civ.  Proc.  (N.  T.)  §  441,  governing 
service  of  summons  by  publication  does  not 
apply — In  re  Denton's  Estate,  40  Misc.  (N. 
Y.)   326. 

16.  Where  the  answer  raises  no  issue  in- 
volving the  recovery  of  money  only  or  of 
specific  property — Gregory  v.  Perry  (S.  C.) 
45  S.  E.   4. 

17.  Evidence  of  the  name  of  a  claimant 
alone  Is  insufficient  to  show  a  presentment — 
Kornegay  v.  Mayer,  135  Ala.  141. 

18.  Kornegay  v.  Mayer,  135  Ala.  141. 

19.  The  objection  should  be  made  on  con- 
firmation— In  re  Leonis'  Estate,  138  Cal.  194, 
71  Pac.  171. 

20.  In  re  Leonis'  Estate,  138  Cal.  194,  71 
Pac.  171;  Smith  v.  Huffman,  132  N.  C.  600. 
Order  is  void  when  made  after  settlement  of 
estate — English-McCaffery  Logging  Co.  v. 
Clowe,  29  Wash.  721,  70  Pac.  138. 

21.  Dyson  v.  Jones,  65  S.  C.  308;  Halght  v. 
Hayes  (Neb.)  92  N.  W.  297;  In  re  Leonis'  Es- 
tate, 138  Cal.  194,  71  Pac.  171. 

22.  Haight  v.  Hayes   (Neb.)    92  N.  W.   297. 

23.  Mott  V.  Ft.  Edward  Water  Works  Co., 
79   App.   Div.    (N.   Y.)    179. 

24.  Fussell  v.  Dennard   (Ga.)   45  S.  E.  247. 


§  7D 


SALE  OP  t^ySfD  FOR  DEBTS. 


1113 


Heirs  of  the  deceased  may  appeal  frpm  the  order  authorizing  a  sale  for  the 
payment  of  debts,^^  but  an  executor  cannot  appeal  from  an  order  directing  a  sale 
for  the  payment  of  the  widow^s  award.^®  In  Utah  such  an  order  is  not  appealable  as 
a  final  order.^^  The  purchaser  may  appeal  from  an  order  vacating  the  decree  of  sale, 
though  taken  after  the  expiration  of  the  time  for  appeal  from  the  latter.^*  In 
the  absence  of  evidence  in  the  record,  the  findings  of  fact  will  not  be  reviewed.^' 
On  appeal,  it  will  be  presumed  that  it  was  proper  to  resort  to  the  particular  piece 
of  realty  directed  to  be  sold.^'*  In  Maine  the  necessity  for  resort  to  realty  must 
be  proved  on  appeal,  the  decree  of  sale  not  being  evidence  of  the  fact.^^ 

(§7)  D.  The  sale. — The  time  within  which  the  sale  is  required  to  be  made 
will  be  computed  from  the  time  of  entry  of  an  order  modifying  the  original  order  of 
sale.'*  The  court  may  extend  the  time.^^  Sales  by  personal  representatives  under 
order  granting  leave  for  the  payment  of  debts  should  be  public.^*  A  statute 
validating  private  sales  by  personal  representatives  defeats  a  pending  action  to  avoid 
a  sale  on  such  ground.^' 

Statutory  requirements  of  notice  must  be  met.^' 

The  representative's  return  of  sale  must  show  that  the  property  was  sold  for 
the  pajonent  of  debts.'^  A  premature  confirmation  of  sale  is  a  mere  irregularity 
which  will  not  invalidate  it.^®  That  the  accepted  bid  is  far  below  the  estimated 
value  of  the  property,^*  or  if  the  property  was  not  offered  in  a  manner  which 
would  be  likely  to  bring  the  best  price,  the  sale  will  not  be  confirmed.*"  The  value 
of  the  land  at  the  time  of  the  sale  determines  the  adequacy  of  the  price.**  Objections 
to  the  sale  must  be  made  on  confirmation,*^  and  cannot  be  first  raised  on  appeal.*' 
It  will  be  presumed  that  the  officer  appointed  to  make  the  sale  followed  the  statu- 
tory requirements.** 

Equity  has  jurisdiction  of  a  suit  to  avoid  a  sale  of  realty  by  the  representative 
procured  by  fraud,*"  though  the  right  to  have  it  set  aside  may  be  lost  by  laches.*' 


25.  Applied  to  a  sale  by  the  husband  of 
community  property — In  re  Wlckersham's 
Estate    (Cal.)    70   Pac.   1079. 

26.  Lane  v.  Thorn,  103  111.  App.  215. 

27.  In  re  Williamson's  Estate  (Utah)  72 
Pa,c     2. 

28.  In  re  Leonls'  Estate.  138  Cal.  194.  71 
Pac.  171. 

29.  In  re  Roach's  Estate,  139  Cal.  17.  72 
Pac.  393.  The  appellate  court  has  no  jurisdic- 
tion to  determine  the  application  on  the 
merits  where  the  record  does  not  show  what 
disposition  has  been  made  of  the  proceed- 
ing— Knerr  v.  McDonald,  30  Ind.  App.  600. 

SO.  In  re  Roach's  Estate,  139  Cal.  17.  72 
Pac.  393. 

31.     In  re  Snow,  96  Me.  570. 

S2.  After  the  expiration  of  a  year  from 
the  grant  of  a  license  to  sell,  the  court  can 
extend  the  time  for  sale  not  exceeding  the 
limit  fixed  by  Rev.  St.  1898,  §  3889 — Mackin 
V.  Hobbs,  116  Wis.  528.  The  sale  must  be 
made  within  two  years  after  order  granted — 
Id. 

33.  Mackin  v.  Hobbs,   116  Wis.  528. 

34.  In  Pennsylvania,  prior  to  act  May  9, 
1889,  a  personal  representative  who  had  pro- 
cured an  order  for  the  sale  of  realty  for  the 
payment  of  debts  was  not  authorized  to  sell 
at  a  private  sale — Kiskaddon  v.  Dodds,  21  Pa. 
Super.  Ct.  351.  The  remainderman  held  not 
estopped  under  the  facts  from  suing  nineteen 
years  after  the  making  of  a  sale  to  avoid  it 
on  the  ground  that  it  was  private — Id. 

35.  Kiskaddon  v.  Dodds,  21  Pa.  Super.  Ct. 
351. 


36.  A  purchaser  of  timber  rights  and  saw 
mills  connected  therewith,  at  a  private  sale, 
under  an  order  authorizing  It,  where  no  no- 
tice of  the  intended  sale  had  been  published, 
acquires  no  title — Fussell  v.  Dennard  (Ga.) 
45  S.  E.  247.  That  the  posted  notices  of  sale 
did  not  contain  the  sale  commissioner's  sig- 
nature will  not  of  itself  Invalidate  the  sale — 
Allsop  V.  Deposit  Bank  of  Owensboro,  24  Ky. 
L.  R.  762.  69  S.  W.  1102. 

37.  Applied  to  return  of  sale  of  communi- 
ty property  under  power  In  will  of  the  de- 
ceased spouse — In  re  Wlckersham's  Estate 
(Cal.)  70  Pac.  1079. 

38.  As  where  the  order  of  sale,  and  the 
execution  and  delivery  of  the  deed  all  take 
place  at  the  same  term  of  court  (Burns'  Rev. 
St.  1901,  §  2512) — Custer  v.  Holler  (Ind.)  67 
N.  E.  228. 

39.  40.     Ryan  v.  Wilson,   64   N.   J.   Eq.    797. 

41.  "Disproportionate  to  the  value"  as 
used  in  Code  Civ.  Proc.  §  1552  means  dispro- 
portionate to  the  value  at  the  time  of  the  bid 
— In  re  Leonis'  Estate,  138  Cal.  194,  71  Pac. 
171. 

42.  In  re  Leonis'  Estate,  138  Cal.  194,  71 
Pac.    171. 

43.  There  is  an  objection  that  the  notice 
was  not  published  in  the  requisite  time — 
Meddis  V.  Kenney  (Mo.)   75  S.  W.  633. 

44.  That  the  notice  of  sale  was  posted  the 
required  length  of  time — Allsop  v.  Deposit 
Bank  of  Owensboro,  24  Ky.  L.  R.  762,  69  S. 
W.   1102. 

45.  McAdow  V.  Boten   (Kan.)   72  Pac.   529. 


1114 


ESTATES  OF  DECEDENTS, 


§  8A 


By  accepting  the  benefits  of  a  sale,  the  heirs  may  be  estopped  to  set  up  its  in- 
validity,*' and  the  recovery  of  a  judgment  against  the  administrator  by  the  heirs, 
in  part  for  the  proceeds  of  land  sold  operates  as  a  ratification  of  the  sale.*® 

The  rule  of  caveat  emptor  applies  to  sales  by  representatives.**  The  pur- 
chaser is  not  bound  to  see  that  the  proceeds  are  applied  on  the  payment  of  the 
debts.®"  On  resale  for  a  less  price  after  failure  of  the  purchaser  to  complete  his 
contract  he  -will  be  liable  for  the  difference  in  the  price  together  with  the  costs 
of  the  resale.^^  Generally,  the  purchaser  of  land  at  a  sale  for  the  purpose  of  pay- 
ment of  debts  is  entitled  to  the  rents  from  the  date  of  the  confirmation  of  the 
sale,  and  he  cannot  recover  rent  for  the  period  of  time  announced  at  the  sale  that 
possession  would  be  withheld. ^^ 

The  temporary  administrator  may  complete  the  sale  made  by  the  original 
representative  by  enforcing  the  bid  and  executing  a  deed  without  leave  of  court." 

§  8.  Rights  and  liahilities  letween  representatives  and  estate.  A.  Management 
of,  and  dealings  with  the  estate. — The  representative  is  bound  only  to  exercise  the 
care  of  a  prudent  man  in  the  management  of  his  own  business."  Any  miscon- 
duct," or  neglect  of  official  duty  by  a  representative®^  or  his  agent  renders  him  per- 
sonally liable  for  the  resulting  loss."  A  representative  is  liable  for  such  property 
as  is  actually  shown  to  be  in  his  hands  at  the  time  of  the  settlement  of  his  ac- 
counts," and  if  at  such  time  he  is  insolvent  and  has  no  funds  or  property,  he  will 
be  held  liable  as  representative,  though  he  claims  to  have  transferred  such  sum  to 
himself  as  guardian  for  the  sole  distributee.®®  He  is  properly  charged  with  assets 
received  prior  to  his  appointment.®" 

If  the  representative  fails  to  exercise  due  diligence  in  attempting  to  collect  debts 
due  the  estate,  he  will  be  personally  charged  therewith,®^  as  where,  by  an  agreement 


"If  the  proceedings  were  unfair"  as  used  In 
Code  Civ.  Proc.  §  1552.  warranting  the  set- 
ting aside  of  a  sale,  means  some  irregularity 
as  to  the  notice  or  fraud  and  collusion  among 
bidders — In  re  Leonis'  Estate.  138  Cal.  194, 
71  Pac.  171.  As  to  sufficiency  of  instruction 
In  an  action  to  avoid  sale  on  the  ground  of 
fraud,  see — Morrow  v.  Cole,  132  N.  C.  678. 

Fraud.  Because  the  personal  representa- 
tive assisted  in  establishing  the  claim  against 
the  estate,  (Morrow  v.  Cole,  132  N.  C.  678) 
or  that  the  purchaser  had  been  Imposed  on 
and  bought  at  an  excessive  price,  are  not 
alone  grounds  for  setting  aside  the  sale  par- 
ticularly where  the  administratrix  purchased 
at  the  appraised  value  and  retained  the  prop- 
erty for  more  than  a  year  making  payment 
and  only  one  creditor  was  represented  in 
the  proceeding  to  avoid  the  sale  and  none  of 
the  heirs  (Benson  v.  Benson,  97  Mo.  App. 
460)  nor  Is  the  fact  that  the  grantee  of  the 
purchasers  knew  that  a  certain  person  was 
claiming  as  heir  of  deceased  sufficient  to  put 
him  on  Inquiry  as  to  fraud  in  procuring  the 
sale — Morrow  v.    Cole,    132   N.    C.    678. 

40.  Twelve  years  after  the  discovery  of 
fraud  held  sufficient  to  bar  the  proceeding 
— Eames  v.  Manly  (C.  C.  A.)  117  Fed.  387. 

47.  Battle  v.  Wright.  116  Ga.  218.  By  re- 
ceiving a  distributive  share  of  the  proceeds 
of  a  sale  of  land  to  pay  debts,  the  heir  is  es- 
topped to  question  the  validity  of  the  deed — 
Meddis  V.  Kenney    (Mo.)    75   S.  "W.   633. 

48.  Battle   v.   Wright.    116    Ga.    218. 

49.  Keen  v.  McAfee,  116  Ga.  728. 

50.  Applied  where  the  survivor  in  com- 
munity sold  to  pay  community  debts — Cruse 
V   Barclay  (Tex.  Civ.  App.)  70  S.  W.  358. 


51.  Thomas  v.  Caldwell,  136  Ala.  518. 

52.  Broadwell  v.  Sammons,  24  Ky.  L.  R. 
814,   69  S.  W.  1084. 

.53.     Goodwynne  v.  Bellerby,  116  Ga.  901. 

54.  O'Brlan  Bros.  v.  Wilson  (Miss.)  33  So. 
946. 

5.5.  As  where  an  administrator  wrongful- 
ly obtained  control  of  the  intestate's  busi- 
ness and  property  at  less  than  full  value 
and  where  he  failed  to  account  for  part  of 
the  assets — In  re  Feierabend,  38  Misc.  (N.  Y.) 
524. 

56.  If  the  personal  representative  co-min- 
gles funds  in  such  a  manner  that  he  is  un- 
able to  separate  the  funds  on  his  accounting, 
he  will  be  personally  charged  for  any  loss 
occurring  to  the  estate — In  re  Hayes,  40 
Misc.  (N.  Y.)  500.  The  executor  should  not 
be  charged  for  failure  to  surrender  prem- 
ises rented  by  the  deceased  by  the  month, 
where  delay  was  caused  by  a  contest  of  the 
will  wherein  his  fitness  to  administer  was 
also  questioned — In  re  Murray's  Estate,  40 
Misc.  (N.  Y.)  433.  For  a  depreciation  In 
realty  resulting  from  a  neglect  of  perform- 
ance of  their  duties,  the  executors  are  joint- 
ly liable — In  re   Irvine's  Estate,   203   Pa.    602. 

57.  The  administrator  is  personally  liable 
for  funds  of  the  estate  paid  by  him  to  rec- 
tify errors  made  by  his  attorney  In  an  ac- 
tion— In   re  Hayes.   40  Misc.    (N.   Y.)    500. 

55,  59.     State  V.  Whitehouse,  75   Conn.   410. 

60.  In  re  Lovell's  Estate,  21  Pa.  Super.  Ct. 
378. 

61.  Carpenter  v.  Stowe's  Estate,  75  Vt. 
114;  In  re  Button's  Estate,  92  Mo.  App.  132; 
In  re  Irvine's  Estate,  203  Pa.  602.  An  ad- 
ministrator   cannot    be    charared    for    failure 


§  8A 


RIGHTS  OF  REPRESENTATIVE. 


1115 


to  extend  time  otf  payment,  a  solvent  surety  was  released,  the  maker  being  insolv- 
ent,*2  though  it  must  first  appear  that  the  debt  was  due  and  payable.®^ 

For  unauthorized  payments,  as  when  the  claim  had  not  been  allowed,  the  repre- 
sentative will  not  be  credited,®*  though  made  with  the  consent  of  one  of  the  heirs  ;^' 
but  if  by  an  unauthorized  compromise  of  a  claim  the  estate  was  benefited,  he  should 
not  be  personally  charged  with  the  payment,''®  nor  will  payment  of  distributiri 
shares  before  the  debts  are  paid  be  credited." 

The  representative  is  not  chargeable  with  rents  until  he  takes  possession  of  the 
realty  for  the  purpose  of  payment  of  debts,  though  the  will  effected  an  equitable  con- 
.  version  of  the  realty,®*  but  he  will  be  personally  charged  with  rents  during  the 
time  in  which  he  wrongfully  withheld  possession  from  the  heirs.®*  He  cannot  be 
held  liable  for  injuries  committed  to  the  freehold  by  the  purchaser  at  a  void  sale 
where  he  had  never  been  in  possession  or  control,  or  aided  or  abetted  in  the  in- 
juries.'"* 

Since  personal  representatives  cannot  deal  with  the  estate  to  their  own  in- 
dividual profit^^  they  cannot  directly"  or  through  a  third  person  purchase  at 
their  own  sales  ;''^  they  may,  however,  in  the  absence  of  fraud,  purchase  at  a  fore- 
closure sale  of  decedent's  property,^*  or  buy  the  interest  of  an  heir'^'^  or  claims  for 
money  received  by  decedent  as  guardian,  where  such  funds  never  came  into  the 
hands  of  the  representative.''®  If  the  personal  representative  purchased  realty  with 
estate  assets  taking  title  in  his  own  name  he  may  be  compelled  to  reconvey  the 
same  to  persons  entitled  thereto.''^  On  avoidance  of  a  sale,  it  is  not  necessary 
to  reimburse  the  representative  the  consideration,  where  he  had  collected  the  rents 
and  profits  equal  in  amount  thereto.''*  To  enforce  the  payment  of  the  purchase 
price  of  property  sold  to  an  administrator,  the  remedy  of  the  co-administrator  is  to 
enforce  the  decree  settling  the  accounts  of  his  co-administrator  and  charging  him 
with  the  purchase  money  and  not  by  bill  to  enforce  a  vendor's  lien.''*  Any  profits 
which  the  representative  made  by  dealing  with  the  funds  of  the  estate  will  be  charged 
against  him.*** 


to  enter  deficiency  Judgment  In  mortgage 
foreclosure  proceedings  where  such  judg- 
ments would  have  been  worthless — In  re 
Hayes.  40  Misc.  (N.  Y.)  500.  He  cannot  be 
charged  with  property  of  which  he  had  no 
knowledge  or  by  the  exercise  of  ordinary 
diligence  could  not  have  discovered — O'Brian 
Bros.  v.  Wilson  (Miss.)   33  So.  946. 

62.  Foster  v.  Foster,  24  Ky.  L..  R.  1396,  71 
S.   W.   524. 

63.  He  cannot  be  charged  with  a  judg- 
ment which  the  representative  knew  In  fact 
to  have  been  paid  deceased — Mulford  v.  Mul- 
ford   (N.  J.  Eq.)   53  Atl.   79. 

64.  Langston  v.   Canterbury,    173   Mo.    122. 
Johnson    v.    Pulver    (Neb.)    95    N.    W. 


65 
697. 
66 
67. 


In  re  Wagner,  40  Misc.  CN.  T.)  490. 

Keiningham  v.  Keiningham's  Ex'r,  24 
Ky.  L.  R.  1330,  71  S.  W.  497.  Though  the 
payments  were  made  on  advice  of  counsel 
and  the  probate  judge — James  v.  West,  67 
Ohio  St.   28. 

68.     Tunnicliffe    v.    Fox    (Neb.)    94    N.    W. 


1032. 

69. 
478. 

70. 

71 


Maney   v.    Casserly    (Mich.)    96   N.    W. 


Morrow  v.  Cole,  132  N.  C.   678. 

In  re  Peck,  79  App.  Div.  (N.  T.)  296. 
Sufficiency  of  complaint  in  an  action  to  re- 
cover stock  purchased  with  assets  of  the 
estate  by   a   co-executor  and   transferred   as 


collateral  security — Ruggles  v.  O'Brien,  79 
App.  Div.  (N.  Y.)  641.  If  the  personal  rep- 
resentative wrongfully  disposes  of  the  per- 
sonalty to  his  own  advantage,  he  will  be 
compelled  to  pay  the  creditors  of  the  de- 
ceased— In  re  Brady's  Estate.  21  Pa.  Super. 
Ct.  397.  Funds  received  by  the  executor  as 
extra  compensation  In  the  performance  of 
duties  as  officers  of  a  corporation  in  which 
the  decedent  was  Interested,  held  not  a  part 
of  the  profits  of  the  corporation  belonging 
to  the  estate — In  re  Schaefer,  171  N.  Y.  686. 

72.  Cole  V.  Boyd  (Neb.)   93  N.  W.  1003. 

73.  Sufficiency  of  evidence  to  support  a 
verdict  setting  aside  a  sale  to  the  husband 
of  the  administratrix — Lowery  v.  Idelson 
(Ga.)   45  S.  E.  51. 

74.  O'Brian  Bros.  v.  Wilson  (Miss.)  33  So. 
946. 

75.  If  by  the  conveyance  title  of  undis- 
covered property  passed  it  will  be  decreed 
to  be  held  by  the  representative  in  trust 
and  a  reconveyance  directed — Shelby  v. 
Creighton   (Neb.)   96  N.  W.  382. 

76.  Murray  v.   Barden,   132  N.  C.  136. 

77.  Evidence  held  sufficient  to  show  that 
the  administrator  purchased  an  heir's  inter- 
est with  proceeds  of  certain  personalty  be- 
longing to  the  estate — Stone  v.  Burge,  24  Ky 
L.  R.  2424,  74  S.  W.   250. 

78.  Cole  V.  Boyd   (Neb.)    93  N.  W.   1003. 

79.  Langley  v.  Langley.  135  Ala.  383. 


1116 


ESTATES  OF  DECEDENTS. 


§  8B 


(§  8)  B.  Representative  as  creditor  or  deltor.—The  representative  may 
pay  himself  on  appointment  for  services  rendered  the  deceased  as  his  general 
gnardian.^^  A  representative  may  retain  sufficient  assets  to  pay  his  personal 
claim«2  if  ^Q  reports  it  though  it  became  barred  during  administration/^  or  a 
claim  against  the  estate  may  be  enforced  by  bill  in  equity  against  the  co-executor.^* 
A  claim' for  expenses  for  services  rendered  by  an  administrator  under  a  void  ap- 
pointment can  be  allowed  only  on  notice  as  on  an  accounting.^^  By  the  acceptance 
of  administration,  debts  due  decedent  by  the  representative  will  be  treated  as  funds 
in  his  hands,«°  unless  at  the  time  of  the  acceptance  he  was  and  continued  to  be 
during  the  entire  administration  insolvent,"  and  he  has  the  burden  of  proof  to- 
establish  the  fact  of  insolvency ;«»  this  does  not,  however  apply  if  he  became  in- 
solvent pending  his  administration.^^  Commissions  to  which  the  personal  representa- 
tive may  be  entitled  may  be  applied  in  payment  of  a  claim  by  the  estate  against 

him.»°  .  ., 

(8  8)  C.  Interest  on  property  or  funds. — If  the  representative  unnecessarily 
retains  the  funds  and  delays  making  final  settlement  of  his  accounts"  or  if  he 
uses  the  funds  in  the  conduct  of  his  own  business  he  will  be  charged  with  inter- 
est,®2  though  there  had  been  no  demand  for  a  settlement ;»'  but  that  the  money  was 
involved  in  litigation  and  unproductive  will  relieve  him  from  liability."  He  is 
chargeable  with°  interest  on  a  sum  retained  by  him  as  compensation  before  final 
settlement,»=*  but  not  on  funds  held  by  the  deceased  as  trustee.««  Interest  may  be 
dlowed  against  administrators  from  the  time  of  the  refusal  to  pay  the  widoVs 
statutory  allowance,®^  and  on  funds  not  accounted  for  from  the  time  of  his  death.^^ 
Simple  interest  only  is  allowed  on  rents  received  to  which  third  persons  were  en- 


80.  As  where  he  purchased  with  estate 
funds  outstanding  claims  at  a  discount  and 
paid  himself  in  full— In  re  Rainf orth  s  Es- 
tate. 40  Misc.   (N.  Y.)   609. 

81.  Reed  v.  Hume.  25  Utah,  248.  70  Pac. 
998  The  insertion  of  a  claim  against  hini- 
self  in  an  inventory  filed  by  an  executor  is 
not  of  itself  sufficient  to  sustain  a  plea  ol 
set  off  in  an  action  by  him  against  the  es- 
tate—Siebert  V.  Steinmeyer.  204  Pa.  419. 

82.  Evidence  held  Insufficient  to  establish 
a  claim  by  the  personal  representative 
against  the  estate— In  re  Arkenburgh.  171  N. 
Y.  688;  In  re  Rosell's  Estate.  82  App.  Div. 
(N.  Y.)    463.  ^  ... 

83.  But  where  he  made  no  return  until 
after  action  was  brought  to  compel  an  ac- 
counting and  long  after  the  period  of  lim- 
itation had  expired  the  presumption  that  the 
return  setting  up  such  retainer  is  correct 
and  that  the  claim  is  just  may  be  overcome 
by  slight  evidence — Willis  v.  Sutton.  116  Ga. 

283 

84.  As  a  claim  for  board  and  attendance 
furnished  testator— Ely  v.  Ely  (N.  J.  Sup.) 
53  Atl.  1125. 

85.  Such  claim  does  not  come  within  Wis. 
Rev  St.  1898,  §  3838— Brown  v.  McGee's  Es- 
tate  (Wis.)    94  N.  W.   363. 

86.  Devisson  v.  Akin,  42  Or.  177,  70  Pac. 
507  As  where  he  was  the  principal  on  a 
secured  note  or  where  it  was  due  from  a 
partnership  firm  in  which  the  representative 
was  a  member— James  v.  West.  67  Ohio  St. 
28;   In   re   Howell's   Estate    (Neb.)    92   N.   W. 

87.  88,  89.  In  re  Howell's  Estate  (Neb.)  92 
N    W.   760. 

90.     In  re  Brintnall,  40  Misc.   (N.  Y.)   67. 


91.  Kenan  v.  Graham.  135  Ala.  585.  The 
fact  that  the  court  had  ordered  but  one  pay- 
ment of  fifty  per  cent  to  creditors  will  not 
operate  to  excuse  retention  of  large  sums 
without  report  during  several  years,  nor 
will  a  failure  of  the  court  to  order  a  pay- 
ment out  of  the  unreported  funds  entitle  the 
administrator  to  retain  all  of  the  profits 
which  his  own  bank  in  which  he  deposited 
the  funds  could  make — Johnson  v.  Pulver 
(Neb.)  95  N.  W.  697.  In  the  absence  of  bad 
faith,  delay  in  the  settlement  of  the  estate, 
or  that  the  money  could  have  been  invested 
to  better  advantage,  the  personal  represen- 
tatives should  not  be  charged  with  Interest — 
In  re  Woodbury's  Estate.  40  Misc.  (N.  Y.) 
143.  Where  executors  ■were  directed  to  in- 
vest funds  which  they  retained  from  May  1, 
1866,  until  March.  1867,  they  will  not  be 
charged  with  Interest  during  such  time — 
Mulford  V.  Mulford   (N.  J.  Eq.)   53  Atl.  79. 

92.  If  a  representative  borrows  money 
from  the  estate,  he  will  be  chargeable  with 
interest,  at  the  rate  of  not  less  than  five,  or 
more  than  6% — In  re  Flynn's  Estate,  21  Pa, 
Super.  Ct.  126;  In  re  Burke's  Estate,  96  Mo. 
App.   295. 

93.  After  two  years — Hasklns  v.  Martin, 
103  111.  App.  115. 

94.  James  v.  West,  67  Ohio  St.  28. 

95.  Kenan  v.  Graham,  135  Ala.  585. 

96.  Elizalde  v.  Elizalde,  137  Cal.  634,  66 
Pac.  369.  70  Pac.  861. 

97.  Which  may  be  recovered  in  the  action 
for  the  recovery  of  the  allowance — Brown  v. 
Bernhamer.  159  Ind.  538. 

98.  At  six  per  cent — Maney  v.  Casserly 
(Mich.)   96  N.  W.  478. 


§  8E 


LIABILITY    FOR  CO-REPRESENTATIVES. 


1L17 


titled  Tinder  an  independent  right  and  not  as  heirs."*    A  consent  to  a  discharge  is  a 
waiver  of  the  right  to  compel  the  representative  to  pay  interest.^ 

(§  8)  D.  Allowances  for  expenses,  costs,  counsel  fees,  and  funeral  expenses. — 
That  the  appointment  was  void  because  of  lack  of  jurisdiction  on  the  part  of  the 
appointing  court  is  not  ground  for  refusing  reimbursement  for  money  expended  m 
good  faith  ;*  merely  because  the  person  employed  as  agent  by  the  representative  is  a 
relative  is  not  ground  for  refusing  to  allow  the  representative  the  compensation  paid.^ 
Traveling  expenses  not  necessary  in  the  performance  of  duties  as  representatives 
are  not  chargeable.* 

If  the  deceased  in  his  lifetime  procured  a  burial  lot  and  a  monument  the  ex- 
pense of  procuring  one  by  the  representative  will  not  be  allowed/  and  only  a  reason- 
able allowance  should  be  granted  for  funeral  expenses.* 

A  representative  may  be  personally  charged  with  the  costs  of  the  accounting/ 
as  where  he  rendered  complicated  accounts  necessitating  an  audit^  or  where  he 
had  used  the  estate  funds  to  speculate  in  claims  against  the  estate/  but  if  no  ma- 
terial benefit  resulted  to  the  estate  by  reason  of  the  contest  the  contestants  will  not 
be  allowed  the  costs.^° 

The  executor  is  entitled  to  a  reasonable  allowance  for  attorney's  services  in 
procuring  the  probate  of  the  wilP^  as  well  as  to  resist  a  caveat  interposed  before 
the  will  had  been  admitted/^  but  he  will  not  be  allowed  costs  and  expenses  of  a 
proceeding  between  legatees  to  contest  validity  of  a  will  though  he  made  a  suc- 
cessful defense.^^  For  legal  services  rendered  the  representative  in  the  adminis- 
tration of  the  estate  he  should  be  allowed  a  reasonable  sum,"  and  an  extra  com- 
pensation may  be  allowed  for  legal  services  performed  by  himself/'  but  he  will  not 
be  allowed  for  services  which  could  have  been  rendered  by  himself  without  the  as- 
sistance of  counsel.^* 

(§8)  E.  Rights  and  liabilities  of  co-representatives  and  successors. — Execu- 
tors are  jointly  liable  for  all  funds  coming  into  their  hands  imaccounted  for.^'     To 


99.  Anderson  v.  Northrop  (Fla.)  33  So. 
419. 

1.  Tucker  v.  Stewart  (Iowa)  97  N.  W.  148. 

2.  Brown  v.  McGee's  Estate  (Wis.)  94  N. 
W.  363. 

3.  If  the  executor  has  several  pieces  of 
rented  realty  he  may  properly  employ  his 
son  to  collect  the  rents  paying  him  custom- 
ary rates  therefor — In  re  Wagner,  40  Misc. 
(N.  Y.)    490. 

4.  In  re  Blggars,  39  Misc.  (N.  T.)  426. 

5.  In  re  Woodbury's  Estate,  40  Misc.  (N. 
T.)   143. 

6.  A  witness'  estimate  as  to  value  is  not 
binding  on  the  court  or  jury — Foley  v. 
Broeksmit  (Iowa)   93  N.  W.  344. 

7.  In  re  Holmes,  79  App.  Dlv.  (N.  T.)   264. 

8.  Though  where  he  mingled  his  admin- 
istration accounts  with  the  accounts  in  the 
conduct  of  the  realty  on  request  of  the  heirs, 
he  will  not  be  charged  with  the  costs  of  the 
audit — In  re  Young's  Estate,   204  Pa.   32. 

9.  In  re  Rainforth's  Estate,  40  Misc.  (N. 
Y.)    609. 

10.  In  re  Eadle,  39  Misc.  (N.  Y.)  117. 

11.  Taylor  v.  Crook,  136  Ala.  354.  That 
the  devisees  notified  him  that  they  would 
employ  their  own  counsel  pending  contest 
is  not  ground  for  refusal  of  such  allowance — 
Reed  v.  Reed.  24  Ky.  L.  R.  2438,  74  S.  W. 
207.  The  amount  of  allowance  of  counsel 
fees  In  probate  held  proper — Id. 


12.  Tuohy  V.  Hanlon,  18  App.  D.  C.  225. 

13.  In  re  Fry's  Estate,  96  Mo.  App.  208. 

14.  McKee  v.  Soher,  138  Cal.  367,  71  Pac. 
438,  649.  It  is  so  expressly  provided  by  Rev. 
St.  1889,  §  223 — Langston  v.  Canterbury,  173 
Mo.  122.  The  amount  of  fees  for  counsel  In 
aiding  the  preparation  of  the  accounts  and 
the  judicial  settlement  thereof  is  within  the 
discretion  of  the  court.  Code  Civ.  Proc.  §§ 
2561,  2562,  does  not  limit  the  amount  of  such 
fees — In  re  Mitchell,  39  Misc.  (N.  Y.)  120. 
On  the  executor's  general  statement  that  the 
attorneys'  services  rendered  were  for  the 
giving  of  advice  he  will  not  be  allowed  an 
additional  sum  for  such  attorneys  of  $500. 
$650  having  been  allowed  to  another  attor- 
ney— In  re  Peck,  79  App.  Dlv.  (N.  Y.)  296. 
The  attorneys  for  the  personal  representa- 
tive should  be  allowed  a  reasonable  sum  for 
services  of  attorney  rendered  in  a  proceed- 
ing for  the  distribution  of  the  estate — Clark 
V.  Young,  24  Ky.  L.  R.  2395,  74  S.  W.  245. 
Allowance  for  extra  services  held  proper — Id. 

15.  Under  Wis.  Rev.  St.  1898,  §  3929,  the 
allowance  of  an  account  for  extra  service 
held  not  an  abuse  of  discretion  on  the  part 
of  the  court  because  not  presented  In  detail 
— In  re  Ryan's  Estate  (Wis.)   94  N.  W.  342. 

16.  In  re  Murray's  Estate,  40  Misc.  (N.  Y.) 
433. 

17.  In  re  Irvine's  Estate,  203  Pa.  602. 


1118 


ESTATES  OF  DECEDENTS. 


§   8F 


render  an  executor  liable  for  a  devastavit  of  his  co-executor,  it  must  appear  that  he 
was  guilty  of  negligence  in  the  performance  of  his  duty.^* 

(§8)  F.  Compensation. — Eepresentatives  cannvi^  retain  specific  sums  claimed 
as  a  commission  before  the  final  settlement  of  their  aca->ints.^® 

While  the  mere  neglect  of  duty  will  not  operate  as  a  forfeiture  of  compensa- 
tion/" it  will  not  be  allowed  where  the  personal  representative  is  surcharged  with 
large  sums  because  of  mismanagement'^  or  where  he  failed  to  comply  with  an 
order  directing  an  account^^  or  where  he  speculated  with  the  funds  of  the  state 
for  personal  profit.^^  Failure  to  perform  the  duties  as  representative  will  operate 
as  a  waiver  of  the  right  to  compensation.-*  That  the  appointment  was  void  by  rea- 
son of  lack  of  jurisdiction  in  the  appointing  court  is  not  reason  for  depriving  him 
of  compensation  for  services  rendered  in  good  faith.^'  If  the  representative  con- 
tinued the  deceased's  business  without  authorization  he  will  not  be  allowed  com- 
pensation for  services  rendered  therein.^'  The  representative  will  be  allowed  only 
the  statutory  commissions^^  or  such  as  are  reasonable-*  computed  on  such  trans- 
actions as  the  statute  contemplates.-^  For  carrying  on  the  business  of  the  deceased 
under  directions  in  the  will  for  a  stated  time  the  executor  is  entitled  only  to  rea- 
sonable compensation,  and  not  to  the  statutory  commission  on  gross  receipts  or  the 
disbursements.^" 

In  most  states  where  extraordinary  services  have  been  rendered  an  extra  al- 
lowance beyond  the  statutory  commissions  may  be  granted,^^  and  the  apportionment 
thereof  between  the  co-representatives  should  be  made  by  the  court  granting  the 
same,^^  the  amount  being  within  the  discretion  of  the  court.^^ 

(§8)  G.  Rights  and  liabilities  of  sureties  and  actions  on  bonds. — Since  a 
debt  due  decedent  by  a  solvent  representative  is  considered  funds  in  his  hands^*  it 
may  be  enforced  against  the  sureties  on  his  administration  bond,^'  and  to  avoid 
such  liability  they  have  the  burden  of  showing  insolvency  of  the  representative 
at  the  time  of  the  appointment.^*     It  is  a  breach  of  the  bond  to  pay  claims  without 


18.  In  re  Hunt,  38  Misc.  (N.  Y.)  613.  Ex- 
ecutor held  not  liable  for  the  state  funds  on 
the  bankruptcy  of  his  co-executor — In  re 
Hoagland.   79   App.   Div.    (N.  T.)    56. 

19.  Kenan  v.  Graham,  135  Ala,  585. 

20.  In  re  Brintnall,  40  Misc.  (N.  T.)  67. 
Failure  to  reduce  note  to  possession  which 
during  the  lifetime  of  the  intestate  passed 
Into  the  maker's  hands  is  not  such  negli- 
gence, particularly  where  the  representative 
was  charged  with  the  principal  and  interest 
of  the  note — In  re  Baker,  172  N.  T.  617. 

31.     In  re  Hayes,   40  Misc.   (N.  T.)   500. 

23.  An  injunction  restraining  the  execu- 
tor from  transferring  or  incumbering  alleged 
partnership  effects  of  his  intestate  is  not  an 
excuse  for  failure  to  comply  with  an  order 
directing  him  to  render  an  account — West  v. 
Municipal  Court,   25  R.  I.  84. 

33.  In  re  Rainforth's  Estate,  40  Misc.  (N. 
Y.)   609. 

24.  Foster  v.  Foster,  24  Ky.  L.  R.  1396.  71 
S.  W.   524. 

35.  Brown  v.  McGee's  Estate  (Wis.)  94  N. 
W.  363. 

26.  In  re  Peck,   79  App.  Div.    (N.  Y.)    296. 

27.  So  held  though  the  will  directed  that 
the  executors  "be  paid  liberally" — Kenan  v. 
Graham.    135    Ala.    585. 

38.  Four  and  a  half  per  cent  allowance 
on  personalty  amounting  to  $263,000  reduced 
to  three  per  cent — In  re  Young's  Estate,  204 
Pa.   32. 

29.     Commissions  will  not  be  allowed  on  a 


specific  legacy  (In  re  Whipple,  81  App.  Div. 
[N.  Y.]  589)  or  on  property  which  is  not  an 
isset  but  goes  to  the  devisees  or  heirs  in 
kind — Glover  v.  Check,  24  Ky.  L.  R.  1281,  71 
S.  W.  438. 

They  should  be  allowed  on  the  amount  of 
personalty  collected  and  not  as  Inventoried 
(Webb  V.  Peck  [Mich.]  92  N.  W.  104)  and 
only  on  such  sums  actuallj'  paid  out  and  re- 
ceived during  the  life  of  the  representative 
— In  re  Whipple,   81   App.  Div.    (N.  Y.)    589. 

If  commissions  had  been  allowed  on  funds 
of  the  estate,  he  will  not  be  allowed  further 
commissions  on  Investments  made  with  the 
funds — In  re  Davidson's  Estate,   204  Pa.  381. 

30.  Lamar  v.  Lamar  (Ga.)   45  S.  E.  498. 

31.  An  extra  allow^ance  held  excessive  and 
reduced — Glover  v.  Check.  24  Ky.  L.  R.  1281, 
71  S.  W.  438.  Extra  allowance  for  legal 
services  rendered  by  himself — In  re  Ryan's 
Estate   (Wis.)   94  N.  W.  342. 

33.  The  court  on  appeal  from  an  order 
allowing  the  additional  compensation  will 
remand  the  cause  for  apportionment — Glover 
V.  Check,   24  Ky.  L.  R.  1783,   72  S.  W.  302. 

33.  The  opinions  of  a  witness  as  to  what 
would  be  a  fair  compensation  is  not  admis- 
sible— Kenan  v.  Graham,  135  Ala.  585.  Al- 
lowance held  not  excessive — In  re  Rvan'a  Es- 
tate (Wis.)    94  N.  W.  342. 

34.  See  ante,  5  SB. 

35.  James  v.  West,  67  Ohio  St.   28. 

36.  Keegan  v.  Smith,  172  N.  Y.  624. 


§  8G 


RIGHTS  ON  BONDS. 


1119 


authorization'^  or  to  fail  to  take  solvent  notes  in  consideration  of  a  sale  of  per- 
sonalty as  directed  by  an  order  of  the  probate  court. ^^  Nonpayment  of  a  claim  is 
not  a  breach  where  the  estate  would  be  exhausted  by  the  payment  of  preferred  or 
prior  claims/®  but  the  mere  fact  that  the  estate  was  insolvent*"  or  that  a  decree  of 
probable  insolvency  had  been  entered  is  not  a  bar  to  a  pending  action  on  the  bond 
by  a  creditor  of  the  estate.*^ 

Until  liability  has  been  fixed  and  the  representative  has  failed  to  pay  no  action 
can  be  maintained  on  his  bond,*^  and  an  accounting  is  an  essential  pre-requisite/^ 
but  this  does  not  apply  to  an  action  by  an  administrator  de  bonis  non  against  the 
removed  representative  and  his  sureties,**  nor  is  it  in  such  case  necessary  that  a  de- 
mand be  made  before  suit  brought  or  a  judgment  be  procured  against  the  removed 
representative.*''  After  issuance  of  a  citation  therefor  and  failure  of  the  representa- 
tive to  account  the  action  may  be  maintained.*' 

Any  person  damaged  by  the  breach  of  the  bond*^  as  a  creditor  entitled  to  pay- 
ment of  his  claim*^  or  widow  or  next  of  kin  of  decedent  are  entitled  to  sue,** 
and  several  persons  interested  may  jointly  enforce  the  liability."'*  The  administrator 
de  bonis  non  may  maintain  the  action  to  recover  unadministered  assets.^^  A  judg- 
ment creditor  may  sue  without  first  obtaining  leave  of  court.^^ 

It  is  only  where  a  single  creditor  seeks  to  surcharge  or  falsify  the  accounts 
settled  by  a  personal  representative  that  equity  will  have  jurisdiction  of  his  bill 
against  the  personal  representative  and  his  bond."*^ 

A  claim  against  the  estate  of  a  deceased  surety  on  an  executor's  bond  may 
be  filed  in  the  probate  court  in  the  name  of  the  actual  claimant.^*  The  fact  that 
no  claim  was  filed  against  the  estate  of  a  deceased  surety  on  an  executor's  bond 
will  not  bar  an  action  against  the  surety's  legatee,  where  the  executor's  account 
had  not  been  filed  until  after  the  surety's  estate  had  been  settled." 

The  special  statute  of  limitations  barring  claims  against  an  estate  does  not 
apply  to  an  action  on  the  bond  of  a  representative  by  his  successor,^'  and  the  time 
in  which  distributees  may  sue  does  not  begin  to  run  until  after  a  judgment  has 
been  had  determining  the  amount  to  which  they  are  entitled."^  The  sureties  are  es- 
topped to  question  the  validity  of  the  appointment,"  and  it  is  not  a  defense  that 


37,  38.  State  v.  Taylor  (Mo.  App.)  74  S 
W.   1032. 

39.  Under  Me.  Rev.  St.  c.  66.  §  2.  Where 
It  Is  shown  that  the  estate  was  exhausted 
by  payment  of  the  first  four  classes  of 
claims,  the  non-lIabillty  of  the  sureties  on 
the  bond  for  claims  of  other  classes  was  set- 
tled— Burgess  V.  Toung-,  97  Me.  386. 

40.  It  would  have  been  the  duty  of  the 
probate  court  when  the  administratrix  rep- 
resented the  estate  Insolvent  to  appoint  com- 
missioners or  to  pass  upon  claims  presented 
— Fuller  V.  Dupont  (Mass.)   67  N.  E.  662. 

41.  Since  In  such  case  the  action  could  be 
stayed  until  determination  of  the  insolvency 
proceedings  under  Rev.  Laws.  c.  142,  §  2 — 
McKim  V.  Roosa  (Mass.)   67  N.  E.  651. 

42.  Garvey  v.  United  States  Fidelity  & 
Guaranty  Co.,  77  App.  Div.  (N.  Y.)  391.  Un- 
der Wis.  Rev.  St.  1898,  §  4014  It  Is  not  a  pre- 
requisite to  an  action  that  a  devastavit  and 
default  be  determined  as  against  the  repre- 
sentative— Wallber  v.  Wilmanns,  116  Wis. 
246. 

43.  Reed  v.  Hume,   25   Utah,    248,   70  Pac. 

998. 

44.  American   Surety   Co.   v.   Piatt    (Kan.) 

72  Pac.   775. 

45.  Fuller  v.  Dupont  (Mass.)  67  N.  E.  662. 


46.  Probate  Court  v.  Potter  (R.  I.)  52  Atl. 
1085. 

47,  48.  State  V.  Taylor  (Mo.  App.)  74  S.  W. 
1032. 

49.  Meservey  v.  Kalloch,  97  Me.  91.  In 
some  states  the  suit  runs  by  the  name  of  the 
state  or  the  court  of  probate  to  the  use  of 
the  damnified  person  [Editor]. 

50.  That  the  writ  issued  under  Gen.  Laws, 
c.  220,  §  21,  was  indorsed  and  issued  at  the 
instance  of  more  than  one  interested  party 
is  not  ground  for  a  demurrer — Probate  Court 
V.  Potter  (R.  L)  52  Atl.  1085. 

51.  Meservey  v.  Kalloch,  97  Me.  91;  Amer- 
ican Surety  Co.  v.  Piatt  (Kan.)  72  Pac.  775. 

52.  Under  Rev.  St.  Mass.  c.  149,  §  20 — Mc- 
Kim V.  Roosa   (Mass.)    67  N.  E.   651. 

53.  Thompson  v.  Mann  (W.  Va.)  44  S.  E. 
246. 

54.  Even  though  under  the  state  statute 
actions  on  such  bonds  must  be  brought  in 
the  name  of  the  people — Thomson  v.  Black, 
200  111.   465. 

55.  Wallber  v.  Wilmanns,  116  Wis.  246. 

56.  Fuller  V.  Dupont  (Mass.)  67  N.  E. 
662. 

57.  Craddock  v.  Browning,  24  Ky.  L.  R. 
1074,  70  S.  W.  684. 

58.  Romy    V.    State    (Ind.    App.)    67    N.    E. 


1120 


ESTATES  OF  DECEDENTS. 


%9 


the  settlement  of  accounts  was  procured  by  fraud.'®  A  mere  mistake  of  the  amount 
claimed  as  distributee  in  an  action  by  him  as  such  on  the  bond  is  not  fatal.®"  In- 
terest may  be  allowed  and  should  be  computed  from  the  date  of  the  allowance  of 
the  representative's  account.®^  The  Judgment  may  be  for  the  full  amoimt  of  the 
estate.^2 

§  9.  Actions  hy  and  against  representatives  and  costs  therein. — A  successor 
may  prosecute  actions  instituted  by  his  predecessor  without  authorization  from 
the  court.®^  Actions  affecting  assets  may  be  brought  by  persons  interested  in  the 
estate  only  when  the  personal  representative  refuses  to  sue.®*  An  executor  may 
sue  for  a  construction  of  the  will  of  his  testator  to  ascertain  the  rights  of  the 
beneficiaries.®' 

Since  the  administrator  takes  no  interest  in  the  realty®®  he  cannot  maintain 
a  suit  to  declare  a  resulting  trust  in  favor  of  decedent®^  or  to  affect  the  title  in 
realty,®®  though  under  the  code  of  N.  Dakota  he  may  maintain  such  actions  ;®*  but 
where  resort  to  the  realty  will  be  necessary  for  the  payment  of  debts  he  may 
maintain  an  action  to  set  aside  a  void  attachment  lien/®  and  he  has  such  an 
interest  in  the  land  as  would  entitle  him  to  be  made  a  party  plaintiff  to  an  action 
to  restrain  the  commission  of  waste  thereon.''^  In  all  actions  affecting  the  realty 
the  heirs  or  persons  interested  therein  should  be  made  parties,'^* 

Property  or  funds  in  the  hands  of  personal  representatives  being  in  custodia 
legis  cannot  be  reached  by  attachment"  or  garnishment.'^* 

Foreign  appointees  may  maintain  actions  against  residents/"  but  actions  against 
them  must  be  brought  in  the  state  of  the  appointment  unless  there  are  assets  in  the 
state  and  they  qualify  therein/®  and  in  such  case  the  action  may  be  maintained  if 
they  fail  to  take  out  ancillary  letters.''^  An  action  against  a  foreign  executor  to 
recover  a  legacy  may  be  maintained  if  he  is  found  within  the  state.'^* 

An  appearance  by  one  of  two  defendant  co-executors  binds  both/* 


998.  In  an  action  on  the  bond  of  an  admin- 
istrator of  an  absentee  under  the  Indiana 
statute,  the  sureties  are  estopped  to  ques- 
tion the  validity  of  the  appointment  on  the 
ground  that  the  absentee  was  still  alive  at 
the  time  of  the  appointment — Id. 

59.  Since  decrees  settling  the  accounts  of 
representatives  cannot  be  collaterally  at- 
tacked— State  V.  Carroll  (Mo.  App.)  74  S.  W. 
468. 

60.  Sufficiency  of  complaint  In  an  action 
against  the  administrator  and  his  bondsmen 
by  a  distributee — Miller  v.  Ganser,  87  Minn. 
345. 

61.  Fuller  V.  Dupont  (Mass.)  67  N.  B.  662. 

62.  Though  the  executor  was  beneficiary 
under  the  will,  no  final  order  to  settle  the 
accounts  or  distribute  the  estate  having  been 
made — "Wallber  v.  Wilmanns,  116  Wis.   246. 

63.  Goodwynne  v.  Bellerby,  116  Ga.  901. 
Revival  of  actions  by  and  against  decedents, 
see  Abatement  and  Revival. 

64.  It  is  not  necessary  to  the  maintenance 
of  a  suit  for  an  accounting  by  a  creditor 
against  the  administrator  and  the  county 
Judge  alleging  the  fraudulent  retention  of 
fees,  that  the  administrator  shall  refuse  to 
sue — McGlave  v.  Fitzgerald  (Neb.).  93  N.  W. 
692.  The  legatee  may  recover  property  be- 
queathed from  third  persons  on  the  execu- 
tors giving  consent  to  the  legacy — People's 
Nat.  Bank  v.  Cleveland,  117  Ga.   908. 

65.  Leggett  V.  Stevens,  77  App.  Div.  (N. 
Y.)    612. 

66.  See  ante,  §  4C. 

67.  Johnston  v.   Johnston,   173  Mo.   91. 


68.  Bailey  v.  Larrance,  104  III.  App.  662. 

69.  Rev.  Codes  1899,  §§  6372,  6380,  6460. 
6461 — Blakemore  v.  Roberts  (N.  D.)  96  N.  "W. 
1029. 

70.  Munger  v.  Doolan  (Conn.)  55  Atl.  169. 

71.  Halstead  v.  Coen  (Ind.  App.)  67  N.  E. 
957. 

72.  Under  Laws  1887,  c.  147,  as  amended 
by  Laws  1901,  c.  186,  on  death  of  a  mort- 
gagee before  payment,  all  his  rights  and 
powers  as  mortgagee  pass  to  his  personal 
representatives.  On  death  of  the  mortgagee 
pending  an  action  to  foreclose,  his  executor, 
to  continue  the  action  must  make  the  mort- 
gagee's heirs  parties — Hughes  v.  Gay,  132 
N.  C.  50.  Action  to  avoid  a  conveyance  by 
deceased  because  procured  by  fraud — Gaines 
V.  Gaines,   116  Ga.   475,  476. 

73.  Gorman  v.  Stillman  (R,  I.)  52  Atl. 
1088. 

74. 
464. 

75.  A  foreign  administrator  may  maintain 
an  action  for  the  wrongful  death  of  the  in- 
testate without  ancillary  appointment,  ■where 
the  cause  of  action  arose  In  the  state  of  his 
appointment — Boulden  v.  Pennsylvania  R. 
Co.,   205   Pa.    264. 

76.  So  held  under  the  statutes  of  Illinois 
— Filer  V.  Rainey,  120  Fed.  718. 

77.  Montgomery  v.  Boyd,  78  App.  Div.  (N. 
Y.)    64. 

78.  Kelnlngham  v.  Kelningham's  Ex'r,  24 
Ky.  L.  R.  1330.  71  S.  W.  497. 

79.  Montgomery  v.  Boyd,  78  App.  Div.  (N. 
Y.)    64. 


Williams    V.    Smith    (Wis.)    93    N.    W. 


§  lOA 


ACCOUNTING  AND  SETTLEMENT. 


1121 


The  description  in  the  body  of  the  pleading  controls  the  caption  in  determining 
whether  the  action  is  brought  in  the  individual  or  representative  capacity,®"  and  if 
nothing  appears  in  the  body  to  indicate  that  the  action  is  brought  in  the  representa- 
tive capacity,  the  words  "executor"  or  "administrator"  in  the  caption  will  be 
treated  as  surplusage;®^  so  also  if  the  claim  is  in  the  representative's  individual  ca- 
pacity an  allegation  of  representative  capacity  will  be  treated  as  descriptio  personae.*^ 
It  is  not  fatal  that  the  complaint  in  an  action  where  the  representative  sues  in  such 
capacity  and  individually  does  not  state  his  capacity.®^  Where  time  of  appointment 
is  alleged  it  is  not  necessary  to  plead  the  death  of  decedent.®*  Eepresentative  ca- 
pacity is  not  in  issue  if  not  made  so  by  special  plea.®^ 

Certified  copies  of  letters  of  administration  are  sufficient  proof  of  authority  to 
maintain  the  action.®" 

The  general  rule  is  that  where  the  representative  is  unsuccessful  he  will  be 
charged  with  costs.®^  Where  the  action  was  caused  by  the  wrongful  acts  of  the  repre- 
sentatives®® or  where  he  has  been  guilty  of  misconduct  or  bad  faith  in  defending  it 
he  should  be  personally  charged  with  the  costs.®*  Since  under  the  statute  whereby 
a  claim  which  was  not  presented  within  the  time  required  if  put  in  action  will  not 
carry  costs  it  is  improper  to  tax  disbursements.^"  If  the  claim  sued  on  was  ma- 
terially reduced  by  the  representative's  contest  thereof  he  should  not  be  charged 
with  costs,®^  though  plaintiff  consented  on  the  trial  to  a  reduction.®^  An  allowance 
in  addition  to  costs  may  be  granted  where  the  representative  unreasonably  refused  or 
neglected  to  pay.^^  If  a  Judgment  against  a  personal  representative  does  not  in 
terms  make  the  costs  chargeable  against  the  estate,  the  representative  is  personally 
liable.®*  If  the  representative  appeals  from  a  judgment  as  a  legatee  the  costs  may  be 
taxed  against  him  personally.®^ 

§  10.  Accounting  and  settlement  hy  representatives.  A.  Who  may  require. — 
Only  parties  interested  in  the  estate  can  compel  representatives  to  account.®"     A 


80.  If  the  complaint  describes  the  plain- 
tiff as  "A.  B.,  executor,"  omitting  the  word 
"as"  and  in  the  body  of  the  complaint  states 
that  he  sues  as  executor,  it  sufficiently  shows 
the  action  to  have  been  brought  in  a  repre- 
sentative capacity — Bnglehart  v.  Richter,  136 
Ala.  562.  Sufficiency  of  declaration  as  to  au- 
thority of  plaintiff  executrix  in  an  action  to 
recover  assets — Acton  v.  Walker's  Ex'x,  24 
Ky.  L,.  R.  2377,  74  S.  W.  231.  A  complaint  in 
an  action  against  an  administrator  held  not 
defective  because  of  a  failure  to  show  that 
the  defendant  contracted  individually  or  in 
his  representative  capacity — Magoun  v.  Ma- 
goun,  84  App.  Div.   (N.  T.)   232. 

SI.  Williamson  v.  Stevens,  84  App.  Div. 
(N.  Y.)  518. 

83.  Hayden  v.  Kirby  (Tex.  Civ.  App.)  72 
S.  W.  198.  The  representative  capacity  of 
plaintiffs  as  executors  need  not  be  set  out  in 
the  complaint  in  an  action  to  quiet  title — 
San  Francisco  &  F.  Land  Co.  v.  H£<rtung,  138 
Cal.   223,   71   Pac.  337. 

83.  Steele  v.  Gilmour  Mfg.  Co.,  77  App. 
Div.   (N.  T.)   199. 

84.  Stanley  v.  Sierra  Nevada  Silver  MIn. 
Co..  118  Fed.  931. 

85.  Harte  v.  Fraser,  104  111.  App.   201. 

86.  Sands  v.  Hickey  (Ala.)  33  So.  827.  In 
the  justice's  court  he  need  not  prove  his  ca- 
pacity though  his  statement  says  that  he 
sues  as  executor — Knoche  v.  Perry.  90  Mo. 
App.  483. 

87.  As  where  he  fails  In  a  suit  to  subject 
property  to  the  payment  of  decedent's  debts 

Holburn   v.    Pfanmiller's  Adm'r,    24   Ky.   L. 

R.   1613.   71  S.   W.   940. 


88.  The  personal  representative  is  prop- 
erly charged  with  costs  of  an  action  to  pre- 
vent him  from  committing  waste — Steinway 
V.  Von  Bernuth,  82  App.  Div.   (N.  Y.)   596. 

89.  Opitz  V.  Karel  (Wis.)  95  N.  W.  948. 
The  representative  will  be  charged  with  the 
usual  costs  on  payment  of  a  claim  after  suit 
brought  against  him.  If  after  foreclosure 
was  instituted  he  will  be  charged  with 
costs  accruing  to  the  time  of  payment,  in- 
cluding $500  as  attorney's  fees — Hall  v.  Met- 
calfe, 24  Ky.  L.  R.  1660,  72  S.  W.  18.  Costs 
and  extra  allowance  are  proper  in  action 
against  the  personal  representative  to  fore- 
close a  mortgage  executed  by  the  deceased 
— Richards  v.  Stillman,  172  N.  Y.  632. 

90.  Code  Civ.  Proc.  §  1836.  Though  on 
reference  of  such  a  claim  it  was  stipulated 
that  the  disbursements  and  expenses  of  the 
reference  should  be  taxed  as  part  of  the 
costs  of  the  case,  the  plaintiff  being  under 
the  Code  not  entitled  to  tax  his  costs,  it  is 
improper  to  tax  the  disbursements,  that  is. 
the  reference  fees,  witness  fees  and  other 
proper  charges — Nichols  v.  Moloughney,  82 
N.  Y.  Supp.  949. 

91.  92.  Healy  v.  Malcolm,  75  App.  Div.  (N. 
Y.)    422. 

93.  Weeks  v.  Coe,  76  App.  Div.  (N.  Y.) 
310. 

94. 
411. 

95. 
650. 

96. 


McCarthy    v.    Speed    (S.    D.)    94   N.    W. 

Roberts  v.  Lamberton  (Wis.)  94  N.  W. 

A  grand-child  of  the  testator  held  not 
to  have  such  an  interest  as  will  entitle  him 


Ciirr.  T.aw— 


1122 


ACCOUNTING   AND    SETTLEMENT. 


§  ]0B 


legatee  in  remainder  after  the  expiration  of  a  life  estate  created  by  will  vesting  in 
tlie  life  tenants  the  right  to  use  both  principal  and  income  for  specific  purposes 
has  such  an  interest  as  will  entitle  him  to  compel  an  accounting  by  the  executrix.^^ 
A  creditor  may  maintain  an  action  for  an  accounting  against  the  administrator  and 
judge  on  the  ground  of  retention  of  illegal  fees,  though  he  may  have  other  reme- 
diest^^  The  granting  of  an  order  by  the  court  having  probate  jurisdiction  direct- 
m<T  the  filing  of  an  account  by  personal  representatives  on  petition  of  a  creditor  is 

discretionary.^^ 

(§10)  B.  Procedure. — Courts  of  equity  and  probate  courts  have  concurrent 
jurisdiction  to  settle  the  accounts  of  representatives,^  but  the  court  first  assuming 
has  exclusive  jurisdiction,^  though  on  the  groimd  of  surprise  equity  will  assume 
jurisdiction.^  A  representative  can  be  compelled  to  account  only  for  funds  which 
came  into  his  hands  as  such.*  The  probate  court  cannot  therefore  settle  the  accounts 
of  an  executor  as  testamentary  trustee,^  though  the  fact  that  the  executor  was  also 
appointed  testamentary  trustee  will  not  affect  the  jurisdiction  of  the  court  to  com- 
pel an  accounting  as  executor.®  A  sole  surviving  partner  and  executor  of  the  de- 
ceased partner  may  be  compelled  to  settle  his  accounts  in  the  probate  court.'  In 
Texas  the  death  of  the  representative  ousts  the  court  of  jurisdiction  to  determine 
the  rights  between  deceased  and  the  estate  which  he  represented.^     In  New  York, 


to   maintain   the   proceedings— Tunnicliffe  v. 
Fox   (Neb.)   94  N.  W.  1032. 

07.  Where  the  executrix  was  by  will  di- 
rected to  support  the  widow  and  an  Imbecile 
son  during  life  the  residuary  legatee  may 
compel  the  executrix  to  file  a  supplemental 
accounting,  showing  in  detail  her  transac- 
tions with  the  principal  of  the  estate,  and 
an  Itemized  statement  of  all  the  income  re- 
ceived, and  a  statement  in  detail  of  the 
pavments  made  under  the  provisions  in  the 
will,  and  this  though  the  executrix  was  also 
the  widow  and  life  tenant  under  the  will — 
In  re  Hunt's  Estate,  84  App.  Div.  (N.  Y.) 
159. 

98.  The  remedies  to  re-tax  costs,  or  ac- 
tion on  the  administrator's  bond  or  to  re- 
cover penalties  for  taking  illegal  fees  not 
being  exclusive— McGlave  v.  Fitzgerald 
(Neb.)   93  N.  W.  692. 

99.  Code  Civ.  Proc.  §  2727,  answer  held  In- 
sufficient to  warrant  the  denial  of  a  petition 
for  such  an  accounting — In  re  Blum's  Estate, 
83  App.  Div.   (N.  Y.)   161. 

1.  Haughian  v.  Conlon,  39  Misc.  (N.  Y.) 
584.  Equity  has  jurisdiction  of  a  suit  to 
protect  the  trust  estate  against  the  execu- 
tor acting  as  trustee  and  to  afford  com- 
plete relief  by  compelling  an  accounting. 
As  where  a  sole  executor  and  trustee  of 
an  estate  was  co-executor  of  another  es- 
tate of  which  his  wife  was  executrix  and 
residuary  legatee  and  he  was  joining  with 
her  in  the  assertion  of  claims  against  the 
former  estate,  though  no  conspiracy  is  prov- 
ed  Steinway  v.   Von   Bernuth,    82    App.    Div. 

(N.  Y.)  596.  Action  against  the  co-repre- 
sentative to  recover  assets  held  not  to  be  an 
action  for  conversion  but  one  in  equity  for 
the  adjustment  of  the  interests  of  the  par- 
ties  Ruggles   V.    O'Brien,    79    App.    Div.    (N. 

2.  To  oust  Jurisdiction  pending  proceed- 
ings before  the  surrogate  must  be  pleaded — 
Haughian  v.  Conlon,   39  Misc.    (N.  Y.)    584. 

.^.  The  proceedings  in  the  orphan's  court 
being  a  surprise  to  the  executor  who  was 
■unable  to  prepare  his  defense  at  once,  where 


he  asks  by  bill  to  be  allowed  to  settle  In  a 
court  of  equity  and  to  foreclose  certain 
mortgages  connected  "with  the  estate — Mul- 
ford  V.  Mulford  (N.  J.  Eq.)   53  Atl.  79. 

4.  A  general  guardian  on  a  subsequent 
appointment  of  administrator  of  the  deceased 
parent  of  his  ward,  cannot  be  compelled  to 
account  for  suras  paid  to  him  as  guardian 
from  an  estate  In  w^hich  the  mother  was 
the  sole  distributee — In  re  Maybee's  Estate, 
40  Misc.  (N.  Y.)  518.  The  Surrogate  has 
no  jurisdiction  on  the  settlement  of  the  ac- 
count of  the  executors  of  a  deceased  stock- 
holder in  a  corporation  who  were  also  offi- 
cers and  directors  therein,  to  determine 
whether  the  executors  have  used  their  pow- 
ers as  officers  and  directors  in  voting  extra 
compensation  to  themselves  or  in  distribut- 
ing the  corporation's  property — In  re  Shae- 
fer,  171  N.  Y.  686.  The  probate  court  has 
jurisdiction  to  direct  a  stirrender  of  the 
rents  collected  and  reported  to  the  court 
to  the  person  entitled  thereto  though  the 
land  was  rented  by  the  representative  with- 
out authority — Lyons  v.  Lyons  (Mo.  App.)  74 
S.  W.   467. 

5.  In  re  Belt's  Estate,  29  "Wash.  535,  70 
Pac.  74.  Where  the  executor  and  testamen- 
tary trustee  had  settled  the  estate  without 
an  accounting  in  court,  and  leaving  in  his 
hands  the  residuary  estate  in  trust  after  the 
death  of  the  beneficiary,  the  probate  court 
has  no  jurisdiction  to  settle  the  accounts  as 
executor  Including  the  trust  property — Can- 
field  V.  Canfield   (C.  C.  A.)   US  Fed.  1. 

6.  Wallber  v.  Wilmanns,  116  Wis.   246. 

7.  In  re  Dummett,  38  Misc.  (N.  Y.)  477; 
In  re  Mertens'  Estate.  39  Misc.  (N.  Y.)  512. 
Under  the  Alaska  Code,  the  District  Court 
has  jurisdiction  to  determine  the  claim  by 
a  surviving  partner  against  the  estate  of  his 
deceased  partner,  w^hich  involves  an  account- 
ing of  the  partnership  affairs  (31  U.  S.  Stat. 
457,  §§  790-794) — Esterly  v.  Rua  (C.  C.  A.) 
122  Fed.   609. 

8.  McClellan  v.  Mangum  (Tex.  Civ.  App.) 
75  S.  W.  840. 


JOB 


ACCOUNTING;  PROCEDURE. 


1123 


on  death  of  the  representative  pending  settlement,  a  revivor  thereof  may  be  had.* 
The  probate  court  has  jurisdiction  to  compel  an  accounting  by  a  removed  per- 
sonal representative.^" 

The  domiciliary  court  cannot  compel  the  representative  to  account  for  foreign 
assets  accounted  for  before  the  court  appointing  him  ancillary  representative," 
nor  can  the  court  making  the  ancillary  appointment  compel  an  account  of  assets 
without  the  state  of  such  appointment  which  had  been  accounted  for  to  the  domicil- 
iary court.i2  q^^Q  gQ^j.^  making  the  ancillary  appointment  is  without  jurisdiction 
to  adjudicate  on  claims  of  the  estate  against  the  representative,"  nor  can  he  be 
charged  with  property  whose  legal  situs  was  without  the  state  of  such  ancillary  or 
domiciliary  appointment."  The  residence  of  the  agent  of  a  personal  representa- 
tive having  possession  of  assets  which  in  fact  were  without  the  state  cannot  be  con- 
sidered in  determining  the  question  of  jurisdiction  of  the  probate  court  over  such 
assets."  In  Kentucky,  a  foreign  representative  may  be  compelled  to  account  for 
property  held  in  the  state.^^ 

Delay  in  a  proceeding  to  compel  an  accounting  will  not  oust  the  court  of  juris- 
diction.^^ 

All  persons  interested  in  the  estate  should  be  made  parties  to  the  proceeding 
for  the  settlement  of  the  representative's  accounts.^*  If  there  are  unknown  persons 
interested  who  have  not  been  cited  the  settlement  is  void.^* 

Accounts  of  co-representatives  should  be  joint.^° 

The  sureties  on  the  representative's  bond^^  or  any  person  interested  in  the 
estate  may  interpose  objections  to  the  account.^^  The  payment  of  claims  may  be 
questioned  on  the  settlement.^'     A  contested  account   may  be  referred.^*     The 


9.  The  successor  of  a  deceased  represen- 
tative Is  entitled  to  notice  of  an  application 
to  revive  an  accounting  pending  at  the  time 
of  his  predecessor's  death — In  re  Tredwell's 
Estate,  77  App.  Div.  (N.  Y.)  155.  Under  Code 
Civ.  Proc.  §  2606  amending  laws  1902,  c. 
349,  an  appearance  in  response  to  a  citation 
by  the  administrator  with  the  will  annexed 
to  compel  the  representatives  of  the  deceased 
representative  to  account,  is  insufficient  to 
warrant  the  making  of  an  order  of  revivor 
of  the  pending  account — In  re  Tredwell's  Es- 
tate, 77  App.  Div.  (N.  Y.)  155.  The  appear- 
ance of  an  administrator  with'  the  will  an- 
nexed in  support  of  a  motion  to  vacate  an 
order  reviving  an  account  pending  at  the 
time  of  the  death  of  the  accounting  repre- 
sentative is  insufficient  to  confer  power  to 
grant  another  order  reviving  such  pending 
account — Id. 

10.  In  re  Morrison's  Estate,  68  Ohio  St. 
252. 

11.  The  statutes  of  the  state  of  ancillary- 
appointment  not  giving  the  right  to  admin- 
ister the  property  of  a  nonresident  decedent 
situated  in  the  state  by  his  foreign  repre- 
sentative— In   re  Crawford,   68   Ohio  St.   58. 

12.  13,  14,  15.  Tunnicliffe  v.  Fox  (Neb.)  94 
N.  W.  1032. 

16.  Hussey  v.  Sargent   (Ky.)   75  S.  W.  211. 

17.  Wallber  v.  Wilmanns,  116  "Wis.  246. 
An  agreement  between  the  legatees  held  not 
to  deprive  the  surrogate  of  jurisdiction  to 
compel  an  accounting  by  the  representative 
of  the  estate — Kells  v.  People's  Trust  Co.,  82 
App.   Div.    (N.  Y.)    548. 

18.  Canfield  v.  Canfleld  (C.  C.  A.)  118  Fed. 
1;  In  re  Killan's  Estate,  172  N.  Y.  547;  In 
re  Mertens'  Estate,  39  Misc.  (N.  Y.)  512. 
The   executrix   of  her  husband's   estate,   both 


she  and  her  husband  having  been  successive- 
ly the  representatives  of  another  estate  Is  a 
person  interested  in  the  latter  is  a  proper 
party  to  a  proceeding  on  the  settlement  of 
her  accounts — In  re  Walton's  Estate,  38  Misc. 
(N.  Y.)  723. 

19.  New  York  Code  Civ.  Proc.  §§  2518- 
2523 — In  re   Killan's  Estate,   172  N.  Y.   547. 

20.  In  re  Smith's  Estate,  40  Misc.  (N.  Y.) 
331. 

21.  Co-executors,  sureties  on  the  bond  of 
another  executor,  may  object  to  an  account- 
ing and  distribution  before  the  expiration  of 
the  time  within  which  claims  may  be  flled 
against  the  estate — Yakel  v.  Yakel,  96  Md. 
240. 

23.  In  re  Walton's  Estate,  38  Misc.  (N.  Y.) 
723.  Sole  distributee  held  estopped  to  ques- 
tion credit  for  compensation  by  agreement 
with  the  representative  to  allow  him  the 
same — Cummings  v.  Robinson,  95  Md.  759. 
Facts  held  sufficient  to  show  that  a  legatee 
receiving  notice  of  the  representative's  ac- 
counting was  not  estopped  to  file  exceptions 
to  the  report — In  re  Cummings'  Estate 
(Iowa)  94  N.  W.  1117. 

23.  A  decree  discharging  special  adminis- 
trators appointed  pending  contest  of  the  will 
and  directing  a  transfer  of  the  assets  to 
themselves  as  executors,  made  on  notice  to 
all  parties  interested,  is  not  res  judicata  of 
claims  paid  by  such  special  administrators — 
In  re  Doheny,   171  N.  Y.  691. 

24.  Objections  to  an  intermediate  account 
may  be  referred,  though  no  reference  was 
pending  on  objections  to  the  final  account — 
James  v.  West,  67  Ohio  St.  28.  That  there 
was  a  failure  to  report  on  all  the  issues  re- 
ferred is  not  ground  for  setting  aside  the 
report,  the  court  having  power  to  hear  fur- 


1124 


ESTATES  OF  DECEDENTS. 


§  IOC 


contestant  generally  has  the  burden  of  proof,-''  but  the  representative  has  the 
burden  of  proving  the  justness  and  necessity  of  payment  of  administration 
expenses.-®    Depositions  may  be  taken  and  received." 

(§  10)  C.  The  decree  or  order. — On  consolidation  of  separate  proceedings  for 
the  settlement  of  the  accounts  by  co-administrators  a  single  order  directing  dis- 
tribution by  both  is  proper.-^  A  decree  finding  a  balance  due  in  the  hands  of  a  per  - 
sonal  representative  may  properly  direct  the  ultimate  issuance  of  execution  against 
him  individually.-® 

A  decree  settling  the  accounts  is  binding  on  all  persons  made  parties  to  the 
proceeding/"  and  on  the  sureties  on  the  bonds  of  the  representative,^^  and  is  con- 
clusive as  to  all  matters  determined.^^  It  is  not  subject  to  collateral  attack,^^ 
even  on  the  ground  of  fraud.^*  It  does  not  necessarily  show  that  the  representa- 
tive has  been  divested  of  his  administrative  capacity.^^  The  settlement  of  the 
accounts  as  ancillary  representative  is  conclusive  on  the  court  on  settlement  of  the 
accounts  of  the  domiciliary  appointee.^®  A  creditor  not  a  party  but  who  was  en- 
titled to  be  heard  may  intervene  for  the  purpose  of  an  appeal  without  becoming  a 
party  by  petition,  nor  need  he  file  exceptions  to  the  findings,"  and  a  municipal 
corporation  to  whom  taxes  are  due  from  the  estate  is  a  creditor  entitled  to  such 
reraedv  by  appeal.^®  If  the  executor  gave  a  bond  on  his  appointment  it  is  not 
necessary  that  he  file  a  bond  in  order  to  appeal.^®  On  review  the  only  question 
open  is  whether  the  particular  items  questioned  are  legal  charges  under  the  evi- 
dence.*" The  settlement  may  be  affirmed  in  part  and  reversed  in  part,*^  and  on 
reversal  such  part  may  be  remanded  to  the  court  below  for  findings  as  to  the 
facts.*^  A  co-executor  may  move  to  vacate  the  settlement  of  the  estate  by  his 
co-executors  without  notice  to  him.*^  Unless  it  clearly  appears  that  an  allowajice 
for  attorney's  fees  was  unreasonable  all  the  parties  having  acted  in  good  faith 
there  is  no  ground  for  reopening  the  account.**     The  allowance  of  a  motion  to 


ther  testimony  and  supply  the  omission,  or 
the  court  may  also  supply  additional  findings 
on  evidence  heard  before  it,  or  refer  to  an- 
other commissioner — Id.  The  finding  of  the 
referee  on  the  settlement  of  a  representa- 
tive's accounts  is  not  conclusive  on  the  sur- 
rogate—In re  Schaefer,  171  N.  Y.  686. 

25.  In  re  "Wagner,   40  Misc.    (N.  T.)    490. 

26.  In  re  Peck,  79  App.  Div.  (N.  Y.)  296; 
In  re  Rainsforth's  Estate,  40  Misc.  (N.  Y.) 
609. 

27.  In  re  Killan's  Estate,  172  N.  T.  547. 
A  non-resident  surviving  heir  may  procure 
an  order  therefor  for  his  own  examination 
on  his  application  for  an  accounting — Id. 
All  persons  appointed  to  appear  on  an  ac- 
counting may  be  joined  in  an  application  for 
a  commission  to  examine  the  sole  surviving 
non-resident  heir  and  be  represented  in  the 
execution    thereof — Id. 

28.  In  re  Smith's  Estate,  40  Misc.  (N.  Y.) 
331. 

29.  Whetstone  v.  McQueen  (Ala.)  34  So. 
229. 

30.  In  re  Stevens,  40  Misc.  (N.  Y.)  377. 
On  an  infant  represented  by  his  guardian — 
In  re  Turner,  79  App.  Div.  (N.  Y.)  495.  No 
presumption  can  supply  lack  of  proof  of  ci- 
tation or  notice  of  appearance  by  the  heir — 
Miguez  V.  Delcambre,  109  La.  1090. 

31.  Barney  v.  Babcock's  Estate,  115  "Wis. 
409;  "Wallber  v.  Wilmanns.  116  "Wis.   246. 

32.  As  to  the  amount  of  personalty  which 
a  legatee  is  entitled  to  receive — Skillin  v. 
Central  Trust  Co..   80  App.   Div.    (N.   Y.)    206. 


if  it  declares  that  the  executor  holds  the 
balance  in  trust  for  specific  purposes  under 
the  will  it  is  conclusive  as  to  the  existence 
of  the  trust — In  re  Chase's  Estate,  40  Misc. 
(N.  Y.)    616. 

33.  In  re  Stevens,   40  Misc.    (N.  Y.)   377. 

34.  It  can  only  be  attacked  by  a  direct 
suit  in  equity — State  v.  Carroll  (Mo.  App.) 
74  S.  "W.  46S. 

35.  "^''hetstone  v.  McQueen  (Ala.)  34  So. 
229. 

36.  In  re  Crawford,   68  Ohio  St.  58. 

37.  Code  Civ.  Proc.  N.  Y.  §  2569 — In  re 
Sullivan,  84  App.  Div.    (N.  Y.)    51. 

38.  That  the  administrator  has  been  guil- 
ty of  unwarrantable  delay  in  the  settlement 
of  the  estate,  whereby  unnecessary  taxes 
have  accumulated,  and  that  he  should  be 
charged  with  same  personally,  is  not  an  ob- 
jection to  the  city's  right  to  appeal — In  re 
Sullivan,  84  App.  Div.   (N.  Y.)   51. 

39.  In  re  Sidwell's  Estate,  67  Ohio  St.  464. 
The  executor  of  a  deceased  executrix  is  with- 
in Rev.  St.  §  6408,  and  entitled  to  appeal 
from  the  settlement  of  the  account  without 
giving  a  bond — Id. 

40.  The  sufficiency  of  the  evidence  will 
not  be  considered — Taylor  v.  Crook,  136  Al2, 
354. 

41.  42.     James  v.  "U'est.   67  Ohio  St.  28. 

43.  Code,  art.  93,  §  241.  art.  90.  §§  1,  2,  do 
not  preclude  sucti  a  proceeding — Yakel  v. 
Yakel.  96  Md.  240. 

44.  Geesey  v.  Geesey,  96  Md.   630. 


-^  n 


DISTRIBUTION. 


1125 


open  a  decree  to  permit  the  introduction  of  further  testimony  is  within  the  dis. 
cretion  of  the  court.*^  That  the  order  dismissing  the  petition  to  vacate  an  order 
settling  the  accounts  of  a  representative  was  without  prejudice  will  not  prevent 
the  petitioner  from  appealing  from  the  dismissal." 

A  suit  in  equity  will  lie  to  set  aside  the  settlement  on  the  ground  of  fraud.*^ 
After  an  estate  has  been  settled  and  distribution  made  under  order  the  heirs  entitled 
to  share  in  the  estate  who  had  been  fraudulently  deprived  thereof  have  no  ade- 
quate remedy  in  the  probate  court  and  may  resort  to  equity  to  recover.** 

§  11,  Distribution  and  disposal  of  funds.^^  Time  for  distributior). — Distribu- 
tion should  not  be  made  until  after  payment  of  the  debts  of  decedent.^" 

It  is  the  administrator's  duty  to  apply  for  an  order  of  distribution  after  the 
estate  has  been  settled."  The  mere  pendency  of  an  action  to  declare  liens  on 
distributive  shares  in  the  hands  of  the  administrator  is  not  ground  for  dela3ring 
distribution,^^  nor  is  the  right  of  the  heirs  of  a  deceased  legatee  to  compel  payment 
of  the  legacy  to  the  estate  affected  by  the  validity  or  invalidity  of  the  will  of  such 
legatee.'^  The  administrator  has  the  burden  of  showing  an  excuse  for  not  making 
distribution  within  the  legal  time.^* 

Interests,  shares^  and  adjustment  thereof.^^  The  representative  may  set 
off  against  a  distributive  share  a  claim  due  from  the  distributee  to  the  estate,^^ 
though  an  action  thereon  would  have  been  barred  by  limitations,^^  Unless  the  will 
so  intends,  a  legacy  will  not  operate  as  an  extinguishment  of  a  debt."^®  If  the 
heir's  indebtedness  is  greater  than  the  amount  of  his  distributive  share  he  should 
be  credited  with  this  amount."®  A  representative  who  has  paid  out  money  on  ac- 
count of  last  sickness  and  funeral  expenses  of  an  adult  child  has  a  charge  on  such 
child's  distributive  share  for  reimbursement,®" 

Mode  of  distribution,  and  persons  who  may  receive  shares. — Distribution  may 
be  demanded  in  specie.®^  It  is  not  necessary  that  the  distributee  be  required  to 
give  a  refunding  bond  on  payment  of  his  distributive  share,  where  the  time  for 


45.  In  re  Cummlngs'  Estate  (Iowa)  94  N. 
W.   1117. 

46.  The  time  within  which  second  petition 
could  have  been  filed  having  expired — Takel 
V.  Taltel,  96  Md.   240. 

47.  State  V.  Carroll  (Mo.  App.)  74  S.  W. 
468.  If  broug-ht  within  five  years  after  the 
discovery — Tucker  v.  Stewart  (Iowa)  97  N. 
W.  148.  Evidence  held  Insufficient  to  estab- 
lish fraud — Smith  v.  Buchanan  (Iowa)  96  N. 
W.   1086. 

48.  Maney  v.  Casserly  (Mich.)  96  N.  W. 
478.  Held  not  barred  by  laches  from  obtain- 
ing' equitable  relief — Id. 

49.  Interpretation  of  will  to  determine  as 
to  payment  of  legacies  will  be  treated  under 
Wills. 

50.  Coulter  v.  Bradley,  30  Ind.  App.  421. 
The  administrator's  liability  to  pay  the 
debts  in  such  case  where  the  assets  were 
insufficient  cannot  be  avoided  because  he 
acted  on  advice  of  counsel  and  the  probate 
judge — James  v.  West.  67  Ohio  St.  28.  The 
heirs  may  obtain  possession  by  paying  the 
debts  OT  securing  their  payment — Succession 
of  Willis,   109   La.   281. 

51.  Haskins  v.  Martin,  103  111.  App.  115. 

52.  In  re  Davis'  Estate,  27  Mont.  490,  71 
Pac.  757. 

53.  In  re  Wickersham's  Estate,  138  Gal. 
855.  70  Pac.   1076. 

54.  Haskins  v.  Martin,  103  111.  App.  115. 

55.  Receipt  for  share  Is  evidence  of  pay- 
ment of  full  interest — In  re  Murphy,  80  App. 


DIv.  (N.  Y.)  238.  Priorities  between  general 
demonstrative  and  specific  legacies,  see  post, 
§  14A.     See,  also.  Advancements,  post,  §  14B. 

56.  Johnston  v.  Cutchin  (N.  C.)  45  S.  E. 
522.  A  deduction  directed  by  will  from  the 
share  of  the  legatee  held  to  Include  all  in- 
debtedness of  such  legatee  to  the  decedent, 
and  a  promissory  note  made  by  the  legatee 
to  the  decedent  was  therefore  not  a  proper 
subject  of  a  set-off  against  his  share — In  re 
Cummlngs'   Estate    (Iowa)    94  N.  W.   1117. 

57.  In  re  Timerson,  39  Misc.  (N.  Y.)  675; 
Woodruff  V.  Woodruff.  23  Ohio  Circ.  R.  408; 
Holden  v.  Spier,  65  Kan.  412,  70  Pac.  348. 

58.  Sharp  v.   Wightman    (Pa.)   54  Atl.   888. 

59.  In  re  Warner's  Estate,  39  Misc.  (N. 
Y.)   432. 

60.  In  re  Murphy's  Estate,  30  W^ash.  9,  70 
Pac.  109. 

61.  Where  the  estate  had  been  fully  set- 
tled and  all  legacies  paid,  corporate  stock 
in  the  hands  of  the  representative  should  be 
delivered  to  the  residuary  legatee  and  not 
ordered  to  be  sold — Lane  v.  Albertson,  78 
App.  Div.  (N.  Y.)  607.  The  widow  on  elec- 
tion not  to  take  under  the  will  of  her  de- 
ceased husband  Is  entitled  to  her  distribu- 
tive share  of  securities  and  Investments  paid 
her  in  specie,  when  It  Avas  not  necessary  to 
dispose  of  the  same  to  create  a  fund  for  the 
purpose  of  payment  of  debts  of  the  estate — 
Baptist  Female  University  v,  Borden,  132  N. 
C.   476. 


1126 


ESTATES  OF  DECEDENTS. 


§li 


the  presentation  of  the  pajanent  of  claims  has  been  barred  by  the  statute.®^  If  the 
representative  is  also  guardian  of  infant  heirs,  he  may  transfer  their  shares  to 
himself  as  guardian  without  an  order  of  court/^  and  if  appointed  guardian  in  a 
foreign  state  it  is  not  essential  that  he  should  also  have  procured  a  domestic 
appointment.®*  A  voluntary  payment  by  an  administrator  to  the  nonresident  for- 
eign guardian  is  valid.®^  In  case  of  death  of  the  ward  without  owing  debts, 
payment  may  be  made  to  his  surviving  heir  without  the  intervention  of  admin- 
istration on  his  estate.®* 

Interest. — Legacies  will  bear  interest  from  the  time  when  they  are  due  and 
payable,®'  but  this  does  not  apply  to  the  surviving  spouse's  statutory  distributive 
share.®^  A  partial  payment  of  a  specific  legacy  must  first  be  applied  to  the  deduc- 
tion of  accrued  interest.®^  If  the  representative  desires  to  avoid  pajang  interest 
on  legacies  by  a  tender  of  payment  he  must  keep  the  tender  good.''" 

Procedure. — All  the  parties  to  an  agreement  fixing  the  shares  of  the  estate 
no  which  each  shall  be  entitled  in  settlement  of  a  contest  of  a  will  may  petition 
for  a  partial  distribution  under  a  statute  authorizing  it,^^  and  all  the  heirs  should 
be  made  parties  to  proceedings  for  a  general  distribution  of  the  estate."  Infants 
interested  must  be  represented  by  guardian."  All  persons  interested  in  the  estate  are 
entitled  to  notice  of  the  application  for  an  order  of  distribution.'* 

The  court  of  probate  jurisdiction  has  power  in  proceedings  for  distribution 
to  determine  who  is  entitled  to  share,'^''  or  the  court  may  require  trial  of  the  issues 
laised  by  the  persons  claiming  to  be  heirs  and  entitled  to  share.''  The  probate 
court  may  inquire  into  the  indebtedness  of  a  distributee  to  the  estate  and  order  a 
deduction,"  and  determine  whether  legacies  are  a  charge  upon  the  realty.'^  It 
has  power  to  direct  a  deposit  in  court  of  surplus  funds  in  the  representative's  hands 
only  where  special  reasons  are  alleged  therefor." 


62.  Kllcka  v.  Klicka,  105  111.  App.   369. 

63.  A  mere  declaration  of  Intention  to 
hold  the  estate  as  g-uardian  is  sufficient — 
State  V.  Whitehouse.  75  Conn.  410. 

64.  If  it  appears  that  he  had  given  a  bond 
in  the  state  of  appointment  and  that  there 
were  no  debts  against  the  decedent  in  the 
state  of  appointment  as  administrator — State 
V.  Whitehouse.   75   Conn.  410. 

65.  Pub.  St.  Mass.  c.  139.  §§  39.  40,  were 
intended  merely  to  enable  the  administrator 
to  protect  himself  by  a  domestic  decree — 
Gardiner  v.  Thorndike  (Mass.)  66  N.  E.  633. 

66.  Under  Code  Civ.  Proc.  §  2384 — In  re 
Maybee's  Estate,  40  Misc.  (N.  Y.)  518.  A  di- 
rection by  will  to  pay  a  person's  debts  is  a 
legacy  to  him  which  his  personal  representa- 
tive may  enforce — Hallock  v.  Hallock,  79 
App.  Div.    (N.   Y.)    508. 

67.  Facts  held  to  show  that  the  trustees 
of  a  trust  fund  created  by  a  will  were  en- 
titled to  interest  on  such  fund,  and  that  a 
deposit  In  the  bank  of  a  fund  by  the  execu- 
tor with  knowledge  of  one  of  the  persons 
subsequently  appointed  trustee  was  not  a 
tender  so  as  to  avoid  interest — In  re  Blake's 
Estate.  137  Cal.  429.  70  Pac.  303. 

es.  Since  such  share  cannot  be  known 
until  the  amount  of  the  personal  property 
subiect  to  distribution  has  been  ascertained 
— Hutchings  v.  Davis.  68  Ohio  St.  160. 

69.  Morton's  Ex'r  v.  Trustees  of  Church 
Home.   24  Ky.  L.  R.  1122,   70  S.  W.  841. 

70.  In  re  Godwin's  Estate,  22  Pa.  Super. 
Ct.   469. 

71.  In  re  Davis'  Estate.  27  Mont.  490,  71 
Pac.    757.      Sufficiency   of  petition    for   distri- 


bution— Gaines  v.  Gaines,  116  Ga.  476.  Suffi- 
ciency of  petition  by  an  executor  for  leave  to 
sell  realty  for  the  purpose  of  making  distri- 
bution among  devisees — Zehnder  v.  Schoen- 
bachler,  24  Ky.  L.  R.  947,  70  S.  W.  278.  Con- 
struction of  an  agreement  between  heirs  a- 
to  the  distribution  of  the  estate — Chauvet  v. 
Ives.  173  N.  Y.  192. 

72.  Succession  of  Bothick,  109  La.  1. 

73.  In  re  Davis'  Estate,  27  Mont.  490,  71 
Pac.  757. 

74.  Baker  v,  Lumpee.  91  Mo.  App.  560. 

7.'.  Reformed  Presbyterian  Church  v.  Mc- 
Millan (Wash.)  72  Pac.  502.  Rev.  St.  §  3980. 
authorizing  an  action  for  such  purpose,  doe.s 
not  apply  where  administration  is  pending 
— Garr  v.  Davidson,  25  Utah,  335,  71  Pac.  481. 

76.  As  where  on  an  appeal  from  a  set- 
tlement of  the  accounts  of  the  representa- 
tive, persons  claimed  to  be  heirs  and  that 
they  were  omitted  from  the  will  by  mistake, 
claiming  also  there  was  an  Intestacy  as  to 
the  residue  estate,  and  this  even  though  re- 
lationship Is  admitted — Golf  v.  Britton,  182 
Mass.    293. 

77.  Holden  v.  Spier,  65  Kan.  412,  70  Pac. 
S4S. 

78.  Legacies  being  given  In  excess  of  the 
personalty  and  power  of  sale  resting  in  the 
executors  who  accounted  for  the  proceeds 
on  such  accounting,  the  S'urrogate  may  de- 
termine whether  such  legacies  were  a  charge 
on  the  land — In  re  Plummer'a  Estate,  38 
Misc.    (N.  Y.)   536. 

79.  Merely  that  the  exectitor  was  leaving 
the  city  for  a  trip  to  a  distant  state  and 
that  It  was  apprehended  that  he  might  not 


§  13 


DISCHARGE. 


1127 


4.  decree  of  distnbution  which  does  not  dispose  of  the  entire  estate  is  void.*" 
A  decree  settling  the  account  and  directing  distribution  is  conclusive  on  the  parties 
to  the  proceeding  as  to  the  amount  of  personalty  a  legatee  was  entitled  to.^^ 

Wherever  an  issue  of  fact  is  made  in  a  proceeding  for  distribution  of  an  estate, 
a  motion  for  a  new  trial,  and  a  re-examination  of  issues  may  be  had.^^ 

The  personal  representative  can  appeal  from  a  decree  of  distribution  only 
when  he  is  aggrieved  thereby/^  as  where  there  is  a  dispute  as  to  the  amount  due 
from  him.^*  If  he  is  also  a  beneficiary  he  must  appeal  in  his  individual  capacity.^"^ 
Whether  the  representative  is  a  party  aggrieved  cannot  be  determined  on  a  motion 
to  dismiss  the  appeal.^®  The  effect  of  an  appeal  from  an  order  of  distribution  is  to 
vacate  the  order. ^'^  On  a  motion  to  dismiss  an  appeal  from  an  order  denying  ?» 
motion  for  a  new  trial,  the  merits  of  the  controversy  cannot  be  examined.®*  Only 
statutory  costs  can  be  awarded  on  appeal  from  a  decree  of  distribution,*^ 

All  the  legatees  should  be  made  parties  to  an  action  by  a  legatee  to  enforce 
payment  of  his  share/**  and  the  legatees  must  aver  in  the  complaint  that  there  was 
sufficient  personalty  in  the  hands  of  the  executor  or  real  estate  which  it  was  the 
intention  of  the  testator  should  be  charged  with  the  legacy.®^ 

§  13.  Enforcement  of  orders  and  decrees  by  attachment  as  for  a  contempt. — 
The  failure  of  personal  representatives  to  comply  with  orders  directing  the  perform- 
ance of  duties  may  generally  be  enforced  by  committing  him  as  for  a  contempt,®^ 
as  orders  directing  the  payment  of  legacies,®^  or  an  order  directing  him  to  deposit 
certain  property  belonging  to  the  decedent  in  court.'*  The  mere  adjudication  of  a 
representative  as  a  bankrupt  is  not  ground  for  discharging  him  from  a  committal." 
An  executor  will  not  be  punished  criminally  for  failure  to  pay  a  claira.^'^ 

§  13.  Discharge  of  personal  representatives. — The  mere  settlement  of  the  ac- 
counts of  a  personal  representative  does  not  ipso  facto  discharge  him.®^  A  legatee 
is  entitled  to  notice  of  application  for  a  discharge  of  the  executor/*  and  the  decree 


pay  over  the  money  promptly  If  not  ordered 
to  do  so  before  return,  is  not  sufficient 
g-round— Reed  v.  Reed,  24  Ky.  L.  R.  2438,  74 
S.  W.   207. 

80,  Succession  of  Bothick,  109  La,  1.  A 
decree  of  distribution  construed  and  held  not 
to  include  the  distribution  of  homestead 
property  of  the  decedent — Fraser  v.  Farmers' 
&  M.  Sav.  Bank  (Minn.)  95  N.  W.  307. 

81,  Skillin  v.  Central  Trust  Co.,  80  App. 
Div  (N.  T.)  206.  The  court  refused  to  dis- 
turb a  settlement  after  the  lapse  of  eleven 
years— Harman  v.  Avritt,  24  Ky.  L.  R.  1919, 
72  S.  "W.  751. 

82,  In  re  Davis'  Estate,  27  Mont.  235,  70 
Pac.  721. 

S3.  Succession  of  Marks,  108  La.  685;  La- 
mar V.  Lamar  (Ga.)   45  S.  E.  498. 

84.  In   re    Godwin's    Estate,    22   Pa.    Super. 

Ct.   469.  ^^   ^      _ 

85.  In  re  Fuhrman's  Estate,  21  Pa.  Super. 

Ct    27 

86.  'in  re  Davis'   Estate,    27  Mont,   235,   70 

Pac.  721,  .  ,    ^  , 

87  The  appeal  bein^  a  trial  de  novo  In 
the    circuit   court— Klicka  v.   Klicka,    105   111. 

"^  88,  "in   re   Davis'   Estate,    27    Mont.    235,   70 

Pac    721. 

89.  In  re  McMahon's  Estate    (Wis.)    94   N. 

W    351. 

90.  Parker  v.  Cobb,  131  N.  C.  25. 

ni       Coulter  V.  Bradley.  30  Ind.  App.  421. 
92      As  where  on  being  ordered  to  account 
he    fills    the    printed    blank    with    the    word 


"nothing"  written  in  each  of  the  schedules 
and  claiming  that  he  no  longer  acted  as  ex- 
ecutor (In  re  People's  Trust  Co.,  37  Misc. 
[N.  T.]  239)  or  If  he  refuses  to  answer  ques- 
tions as  to  taxable  property  of  the  estate  at 
appraisal — In  re  Bishop's  Estate,  82  App. 
Div.  (N.  Y.)  112.  See,  also,  40  Misc.  (N.  Y.) 
64. 

93.  Under  N.  Y.  Civ.  Proc.  §  2555 — In  re 
Holmes'  Estate,  79  App.  Div.   (N.  Y.)   267. 

94.  Excuse  held  insufficient  to  purge  the 
contempt  and  he  was  not  allov/ed  to  with- 
draw personal  funds  deposited  in  court — 
Reed  v.  Reed,  24  Ky.  L.  R.  2438,  74  S.  W. 
207. 

95.  Evidence  considered  and  held  not  to 
purge  the  administrator  of  contempt — In  re 
Collins,  39  Misc.   (N.  Y.)   753. 

96.  Miss.  Code  1892,  §  1063,  making  It  a 
felony  for  an  executor  to  convert  assets  or 
failure  to  pay,  etc.,  does  not  apply — State  v. 
Pannell   (Miss.)   34  So.  388. 

97.  Whetstone  v.  McQueen  (Ala.)  34  So. 
229.  An  order  releasing  the  executor  from 
all  liability  as  such  on  his  paying  a  particu- 
lar sum  to  those  entitled  thereto  and  direct- 
ing that  his  bond  remain  in  force  until  fur- 
ther order  of  the  court  did  not  discharge  the 
executor  so  as  to  deprive  the  court  of  Juris- 
diction to  appoint  an  administrator  de  bonis 
non — Barney  v,  Babcock's  Estate,  115  Wis. 
409. 

98.  Cole  V.  Shaw  (Mich.)  96  N.  W.  573. 
The  beneficiary  of  an  annuity  Is  entitled  to 


1128 


ESTATES  OF  DECEDENTS. 


§  14A 


is  not  binding  on  a  person  interested  not  made  a  party  to  tlie  proceeding.''^  If  pro- 
cured by  fraud  it  will  be  vacated.^  The  receipt  for  a  share  is  proof,  until  contra- 
dicted, that  the  signer  received  the  full  amount  of  interest  to  which  he  was  entitled.^ 
A  discharge  of  the  representative  of  a  deceased  representative  will  not  estop  the 
heirs  of  the  latter  estate  from  attacking  the  discharge  of  the  deceased  on  the  ground 
of  fraud.* 

§  14.  Rights  and  liahilities  between  beneficiaries  of  estate.  A.  In  general.* — 
A  division  of  decedent's  property  made  before  death  and  accepted  by  the  heirs  is 
binding  upon  them.^  If  the  heirs  entered  into  actual  occupancy  after  death  of 
the  donor  their  rights  would  be  the  same  as  if  they  had  inherited  in  common  and 
made  a  parol  allotment,^  and  the  fact  that  the  realty  subsequently  enhanced  in 
value  will  not  entitle  the  other  heirs  who  received  personalty  to  share  therein.'' 
If,  however,  the  ancestor  distributed  his  estate  so  as  to  deprive  an  heir  of  his  right 
to  share  he  may  recover  from  the  heirs  receiving  the  property.®  If  there  is  no 
administration  the  heirs  may  contest  the  validity  of  a  transfer  of  realty  by  decedent 
to  an  heir  on  the  ground  of  fraud.® 

A  contract  by  a  minor  legatee  whereby  he  stipulated  to  receive  a  sum  less  than 
his  legacy  is  not  binding.^"  Such  contracts  to  be  binding  must  be  based  on  a  con- 
sideration.^^ 

Whether  the  legacies  are  charged  upon  realty  devised  is  to  be  determined  from 
a  construction  of  the  will,^^  and  in  the  absence  of  direction  in  the  will  realty  can 
be  resorted  to  only  after  exhaustion  of  the  personalty.^^  In  the  absence  of  personalty, 
realty  not  specifically  devised  will  be  first  subjected.^*  If  there  was  no  fund  out 
of  which  demonstrative  legacies  could  be  paid,  they  will  share  pro  rata  with  the 
o-eneral  legatees.^'  Though  the  entire  residue  be  exhausted  the  residuary  legatee 
cannot  call  on  either  specific  or  general  legacies  or  devises  to  abate  in  his  favor.^^ 


notice    of    application    for    discharge    of    the 
residuary  legatee  as  executrix — Id. 

99.     Cole  V.  Shaw   (Mich.)    96  N.  W.   573. 

1.  It  Is  a  sufficient  fraud  if  the  represen- 
tative stated  that  he  had  paid  over  to  per- 
sons entitled  thereto  specific  sums  in  cash, 
when  in  fact  only  notes  had  been  given — 
Tucker  v.  Stewart  (Iowa)  97  N.  W.  148. 

2.  In  re  Murphy,  80  App.  Div.   (N.  Y.)    238. 

3.  Coleman  v.  Howell,   131  N.  C.   125. 

4.  Liability  for  decedent's  debts,  see  ante. 
§  6B.  Election  by  beneficiaries  to  take  un- 
der the  statute  see  Election  of  Remedies 
and  Rights.  For  contracts  to  devise;  the 
rights  as  dependent  on  an  Interpretation  of 
the  will  and  for  abatement,  ademption  and 
satisfaction  of  bequests,  see  Wills. 

5.  Hackleman  v.  Hackleman,  199  111.  84; 
White  V.  Watts,  118  Iowa,  549. 

6.  Hackleman  v.  Hackleman,  199  111.  84. 

7.  White  V.  Watts,   118   Iowa,    549. 

8.  An  heir  must  collate  whatever  he  has 
received  in  excess  of  his  portion  unless  It 
was  given  as  an  extra  portion;  the  Intention 
to  give  an  extra  portion  must  be  shown  by 
unequivocal  testimony  and  will  not  be  pre- 
sumed from  the  fact  that  the  donations  were 
in  the  form  of  contracts  of  sale  (Clark  v. 
Hedden,  109  La.  147)  and  if  he  makes  a  pri- 
ma facie  showing  that  the  transaction  was 
gratuitous  the  defendants  have  the  burden 
of  showing  that  they  were  onerous — Id. 
Collation  of  revenues  is  due.  though  the  do- 
nations were  in  form  of  sales,  unless  thereby 
the   excluded   heir  was   kept  In   ignorance   of 


the  donations,  from  the  death  only  when 
suit  is  brought  within  one  year,  otherwise 
from  the  time  of  judicial  demand — Id.  Dec- 
larations of  testator  In  writing  as  to  why  an 
heir  was  omitted  from  distribution  made  be- 
fore death  should  not  be  disregarded  in  toto 
because  untrue  in  part — Id.  Evidence  that 
the  sale  by  a  mother  to  one  son  and  daugh- 
ter was  a  simulated  sale  and  with  Intent  to 
place  the  property  beyond  the  reach  of  an- 
other son — Laporte  v.  Laporte,  109  La.  958. 
Property  held  not  subject  to  collation — Suc- 
cession  of  Lamotte    (La.)    34   So.   122. 

9.  Snyder  v.  Snyder  (Mich.)    92  N.  W.  353. 

10.  In  re  Cummings'  Estate  (Iowa)  94  N. 
W.  1117. 

11.  In  re  Cummings'  Estate  (Iowa)  94  N. 
W.  1117.  Evidence  held  insufficient  to  show 
an  agreement  between  the  legatees  that  a 
specific  sum  should  be  deducted  from  the 
share  of  one  of  the  legatees — Id. 

13.  Lynch  v.  Splcer  (W.  Va.)  44  S.  E.  255 
On  a  deficiency  of  personalty  by  reason  of 
the  widow's  election  to  take  her  statutory 
distributive  share  the  legatee  could  not  com- 
pel a  sale  of  real  estate  for  the  payment  of 
legacies — Baptist  Female  University  v.  Bor- 
den,  132   N.  C.   476. 

13.  Silk  v.  Merry,   23  Ohio  Clrc.   R.  218. 

14.  Under  Act  1894,  c.  438 — Ewell  v.  Mc- 
Gregor,  96  Md.  357. 

15.  In  re  Warner's  Estate,  39  Misc.  (N 
Y.)  432. 

16.  In  re  Martin,  25  R  I.  1. 


>^  IS 


HEIRS   AND   THIRD  PERSONS. 


1129 


Subject  to  the  debts  and  widow's  distributive  share  on  her  election  not  to  take 
under  the  will  demonstrative  legacies  are  entitled  to  priority  over  general  legacies.^^ 

(§  14)  B.  Advancements. — An  advancement  is  the  giving  by  anticipation  the 
whole  or  part  of  what  is  supposed  a  child  would  be  entitled  to  on  the  death  of  the 
parent  making  it/*  and  a  voluntary  conveyance  from  a  parent  to  a  child  will  be  pre- 
sumed to  be  intended  as  an  advancement/®  though  the  conveyance  was  through  a 
third  person.^*^  If  a  child  was  allowed  to  use  land  belonging  to  the  deceased  without 
payment  of  rent  during  her  life,  the  reasonable  value  of  the  use  of  the  land  may  be 
treated  as  an  advancement  to  her.^^  If  a  husband  purchases  realty  taking  title  in 
wife's  name  it  will  be  presumed  it  was  intended  as  an  advancement  to  her.^^ 
A  release  of  an  expectant  estate  is  an  advancement  if  based  on  a  consideration/^  and 
like  any  other  advancement-*  must,  if  required  by  statute,  be  in  writing.^^  Ad- 
vancements made  by  a  testator  prior  to  the  execution  of  his  will  though  designated 
AS  such  at  the  time  made  are  to  be  taken  as  gifts  and  cannot  be  deducted  from 
the  legatee's  share  unless  the  will  so  directs  in  specific  terms.^®  Advancements 
made  cannot  be  brought  into  hotchpot.^^ 

(§  14)  C.  Actions  between  beneficiaries. — To  an  action  to  determine  the 
right  of  devisees  or  legatees  all  of  the  devisees  and  legatees  should  be  made  parties,^^ 
and  it  is  not  a  breach  of  an  administrator's  duty  that  he  fails  to  intervene  in  such 
an  action.^®  Of  actions  between  legatees  to  determine  their  rights  the  court  in 
which  administration  Is  pending  has  not  exclusive  jurisdiction.^'^ 

Persons  claiming  to  be  heirs  of  an  intestate  must  prove  that  there  are  no  other 
persons  of  the  statutory  classes  who  would  take  before  them,^^  An  heir  claiming 
particular  property  has  the  burden  of  proving  that  the  property  belonged  to  the  an- 
cestor. ^^ 

§  15.  Rights  and  liabilities  between  beneficiaries  and  third  persons. — The 
title  of  a  bona  fide  purchaser  from  an  heir  is  not  affected  by  the  subsequent  discovery 


17.  Baptist  Female  University  v.  Borden, 
132  N.  C.  476. 

IS.  AValdron  v.  Taylor  (W.  Va.)  45  S.  E. 
336.  The  release  of  an  expectant  estate  on 
conveyance  to  the  expectant  heir  is  a  suffi- 
cient consideration  and  such  heir  was  en- 
titled to  enforce  a  covenant  of  warranty  in 
the  deed  against  the  other  heirs  and  widow 
—Longshore  v.  Longshore,  200  111.  470.  Evi- 
dence held  sufficient  to  show  gifts  to  have 
been  advancements — Tye  v.  Tye,  24  Ky.  L. 
R.  637,  69  S.  W.  718;  Dobbins  v.  Humphreys. 
171  Mo.  198.  Evidence  held  insufficient  to 
show  an  advancement  to  a  son — Hedges  v. 
Hedges,  24  Ky.  L.  R.  2220,  73  S.  W.  1112. 
Sufficiency  of  evidence  as  to  amount  of  ad- 
vancement— Dobbins  v.  Humphreys,  171  Mo. 
198 

19.  Ellis  v.  Newell  (Iowa)  94  N.  W.  463. 
An  agreement  by  a  husband  on  the  wife's 
procuring  a  divorce  that  he  would  convey  a 
part  of  his  property  for  the  support  and  edu- 
cation of  their  minor  children,  held  not  to 
have  been  intended  as  an  advancement 
though  he  stated  that  he  did  not  intend  that 
she  should  have  any  more  of  his  property — 
Bissell  V.  Bissell  (Iowa)  94  N.  W.  465;  Hey- 
■^vard  V.  Middleton,   65   S.  C.   493. 

20,  21.  Hamilton  v.  Moore,  24  Ky.  L.  R. 
f)82,   70  S.  W.  402. 

22.  To  overcome  this  presumption,  the 
evidence  must  not  only  be  distinct  and  cred- 
ible but  it  must  preponderate.  The  conduct 
of  a  husband  in  taking  charge  of  the  prop- 


erty, improving  it  and  managing  it  as  though 
it  were  his  own  property.  Is  inconsistent 
with  the  presumption  of  an  advancement — 
Chambers  v.  Michael   (Ark.)   74  S.  W.   516. 

23.  Gary   v.    Newton,    201    111.    170. 

24.  Under  2  Starr  &  C.  St.  2d  Ed.  p.  1432 — 
Gary  v.   Newton.   201   111.   170. 

25.  Gary  v.  Newton,  201  111.  170. 

26.  In  re  Cummlngs'  Estate  (Iowa)  94  N. 
W.   1117. 

27.  Waldron  v.  Taylor  (W.  Va.)  45  S.  E. 
336. 

28.  Spurlock  V.  Burnett,  170  Mo.  372;  Par- 
ker v.  Cobb,  131  N.  C.  25.  Sufficiency  of  pe- 
tition In  an  action  to  establisli  heirship — 
Craig  V.  Welch-Hackley  Coal  &  Oil  Co.,  24 
Ky.  L.  R.   2225,   73  S.  W.  1035. 

29.  As  an  action  by  an  lieir  on  an  alleged 
contract  with  the  ancestor  whereby  sucli 
heir  would  be  entitled  after  administration 
to  all  property  remaining  in  the  hands  of 
the  administrator — In  re  Healy's  Estate,  137 
Cal.    474,    70   Pac.    455. 

30.  As  an  action  to  set  aside  an  assign- 
ment of  legacies  on  the  ground  of  fraud 
(Ward  V.  Du  Pree  [S.  D.]  94  N.  W.  397)  or 
an  action  to  set  aside  a  conveyance  to  an 
heir — Snyder  v.  Snyder  (Mich.)  92  N.  W. 
353. 

31.  An  admission  held  not  to  relieve  per- 
sons claiming  as  heirs  of  the  necessity  of 
making  a  prima  facie  case — Sorenson  v.  Sor- 
enson  (Neb.)  94  N.  W.  540. 

32.  In   re   Ruchizky's   Estate,    205    Pa.    105 


1130 


ESTOPPEL. 


of  a  will.^'  iSTeither  the  representative  nor  the  distributees  can  dispute  the  right  of 
the  court  to  direct  the  payment  of  a  distributee's  share  to  his  assignee,  the  court 
liaving  recognized  the  assignment  and  the  assignor  not  questioning  it,^*  but  a  de- 
cree directing  the  payment  to  the  assignee  is  not  res  adjudicata  of  the  right  of  a 
judgment  creditor  to  enforce  his  lien  against  the  share.^° 

The  legatee's  creditor  cannot  attach  the  share  in  the  representative's  posses- 
sion,^® but  he  may  maintain  a  suit  in  equity  to  subject  it  to  the  payment  of  the 
claim  before  the  executor  has  rendered  his  account."  Such  a  proceeding  does  not 
take  the  administration  of  the  estate  from  the  probate  court.^^  The  bill  in  such 
ease  need  not  aver  that  there  would  be  sufficient  left  after  the  payment  of  debts 
for  the  payment  of  legacies,  where  it  avers  that  the  executor  has  a  sum  in  his  hands 
l)elonging  to  the  legatee.^® 

The  interest  of  an  heir  in  a  residuary  estate***  or  in  the  ancestor's  land  subject  to 
homestead  may  be  subject  to  lev}-  and  sale  under  execution  on  judgment  against 
liim.*^  The  rights  of  a  devisee  may  be  subjected  to  payment  of  his  debts  though 
under  the  will  he  is  prohibited  from  disposing  of  the  same  until  he  arrives  at  a 
certain  age.*^  An  oral  agreement  with  the  ancestor  to  release  his  expectancy  can- 
not be  set  up  to  avoid  liability  of  the  heirs'  share  to  pajonent  of  judgment  debts." 
The  share  of  the  distributee  who  executed  the  mortgage  alone  can  be  subjected 
ic  pa}Tnent.**  The  heirs'  share  in  the  personalty  should  be  subjected  to  the  pay- 
ment "of  his  debts  before  resort  can  be  had  to  the  realty." 


S  1.     Kinds  of  Estoppel. 
§  2.     By  Record. 


ESTOPPEL. 

I       §  3. 
1       §  4. 


By   Deed. 
In    Pais. 


Many  common  applications  of  the  doctrine  of  estoppel  are  so  closely  related 


33.  Under  Kansas  "Wills  Act.  §  50,  the 
purchaser  has  the  burden  of  showing  that  he 
had  no  knowledge  of  the  existence  of  the 
will — Markley  v.  Kramer  (Kan.)  72  Pac.  221. 
The  purchaser  of  a  devisee  is  entitled  to 
have  the  will  of  the  ancestor  of  the  devisee 
probated — Hanley  v.  Kraftczyk  (Wis.)  96  N. 
W.  820. 

34.  In  re  Davis'  Estate.  27  Mont.  490,  71 
Pac.  757.  Construction  of  an  assignment  by 
heirs  of  their  share  of  the  estate — Lasley  v. 
Preston   (Mich.)   93  N.  W.   253. 

35.  Martinovich  v.  Marsicano,  137  Cal.  354, 
70  Pac.  459.  To  an  action  by  a  trustee  of  a 
legatee  under  a  trust  created  for  the  benefit 
of  creditors  to  set  aside  conflicting  assign- 
ments of  the  legatee,  the  representatives  of 
the  ancestor's  estate  are  not  necessary  par- 
ties— Tompkins  v.   Tompkins,  123  Fed.   207. 

Gorman    v.    Stillman     (R.    I.)     52    Atl. 


36. 

1088. 
37. 

1088. 


Gorman    v.    Stillman    (R.    I.)     52    Atl. 

The  judgment  creditor  of  the  heirs  of 
a  deceased  heir  who  claimed  to  own  prop- 
erty in  indivision  with  heirs  of  the  ances- 
tor, has  sufficient  interest  to  sustain  an  ac- 
tion against  the  said  heirs,  to  ascertain 
whether  the  debtors  are  entitled  to  any- 
thing after  settlement  of  respective  rights — 
Succession  of  Bothick  (La.)  34  So.  1B3.  Un- 
der the  facts  held  that  the  rights  of  judg- 
ment creditors  of  heirs  of  a  deceased  heir 
and  the  co-heirs  of  the  latter  must  be  estab- 
lished contradictorily,  one  with  the  other — 
Td. 


38,  39.     Gorman  v.  Stillman   (R.  I.)   52  Atl. 

loss. 

40.  But  the  purchaser  will  bo  deferred 
until  by  proper  administration  of  the  estate 
it  can  be  ascertained  what  share  of  the  pro- 
ceeds the  heirs  would  be  entitled  to — Hardy 
V.  Wallis.  103  111.  App.  141.  Under  a  will 
giving  the  widow  charge  of  all  of  the  tes- 
tate's property  and  Income  thereof  during 
her  life,  and  on  her  death  his  executor  to 
take  and  dispose  of  the  remainder  and  divide 
it  among  his  children,  his  son  has  no  such 
interest  as  could  be  levied  on  for  the  pay- 
ment of  his  debts — Harris  v.  Kittle  (Ga.)  45 
S.  B.  729. 

41.  Dinsmoor  v.  Rowse,   200  111.   555. 

42.  Smith  V.  Smith.  24  Ky.  L.  R.  2261,  73 
S.  W.  1028. 

43.  If  the  agreement  be  held  valid  the 
heir  would  hold  the  share  taken  in  trust  for 
the  benefit  of  the  other  heirs,  and  being  a 
secret  trust  cannot  be  enforced  against  the 
heirs'  judgment  creditors — Gary  v.  Newton, 
201    111.  170. 

44.  The  share  of  the  widow,  who  executed 
a  mortgage  on  the  homestead,  on  partition 
v.-ill  be  subjected  to  its  payment — Saunders  v. 
Strobel,  64  S.  C.  4S9.  Where  the  residuary 
estate  is  to  be  divided  under  the  will  be- 
tween two  heirs  the  surplus  remaining  on 
foreclosure  of  a  mortgage  on  the  homestead 
of  decedent  v,-ill  be  divided  equally  between 
one  heir  and  the  mortgagee  of  the  other's 
interest — Kuener  v.  Prohl  (Wis.)  97  N.  W. 
201. 

45.  A  judgment  directing  the  reverse  ap- 


§  3 


BY   DEED, 


1131 


to  other  subject-matters  that  it  is  deemed  best  to  treat  them  elsewhere;  the  more 
important  being  estoppel  to  claim  that  a  corporation  acted  ultra  vires  or  to  aver 
want  of  authority  in  a  corporate  officer  or  agent,"  to  deny  partnership/^  to  ques- 
tion the  existence  or  scope  of  an  agent's  authority/-^  and  the  estoppel  of  a  tenant 
to  dispute  his  landlord's  title.  *^ 

§  1.  Rinds  of  estoppel. — Estoppels  arise  from  records,  from  deeds,  and  from 
matter  in  pais.^°     An  estoppel  by  judgment  prevails  over  one  by  deed." 

§  2.  By  record.— Estoppel  by  judgment  is  elsewhere  treated,"  and  the  con- 
clusiveness of  judicial  and  official  records,  being  often  ruled  on  principles  of  evi- 
dence rather  than  of  estoppel,  is  excluded.^^ 

§  3.  By  deed. — A  party  and  his  privies,"  when  no  fraud  intervenes,"  are 
estopped  to  deny  that  which  he  has  by  deed  or  other  specialty  asserted,'*  e.  g.,  his 
own  title,"  easements  appurtenant,'^  or  boundaries.'"  Conversely,  the  grantee  can- 
not derogate  the  title  under  which  he  claims,®"  but  may  reinforce*  his  title." 

Where  one  conveys  with  warranty,  after-acquired  title  enures  to  the  grantee.'^ 
or  his  privies.^3     ^j^g  ^^^^  ^^^^  ^^^  ^ppj^  where  title  is  taken  in  a  different  right 


47. 

48. 
49. 
50. 


Fed. 

52. 

53. 

54. 

55. 
69    S. 

50. 


plication  is  not  prejudicial  to  the  heir  debtor 
where  his  entire  share  is  less  than  the  debt 
enforced — Oppenheimer    v.    Collins,    115    Wis. 
283.  CO  L.  R.  A.  406. 
46.     See  Corporations. 

See    Partnership. 

See  Agency. 

See  Landlord  and  Tenant. 

See  §§  2-4  post.  See  Cyc.  Law  Diet.. 
"Estoppel,"  for  definitions  and  cases  stating 
same. 

51.     Boynton    v.    Haggart    (C.    C.    A.)     120 
819. 

See  Former  Adjudication. 

See   Evidence.    §    5. 

Sinclair  v.  Huntley,   131  N.  C.  243. 

Call  V.   Shewmaker,   24   Ky.  L.   R.   686, 
W.    749. 

Inadequate  dedication  held  not  to  op- 
erate as  an  estoppel — Klug  v.  Jeffers.  85  N. 
Y.  Supp.  423.  Recitals  in  a  bond  are  con- 
clusive on  the  obligors — Stroud  v.  Hancock, 
116  Ga.  332:  Proudfoot  v.  Gudichsen,  102  111. 
App.  482.  Receiptors  cannot  deny  that  the 
sheriff  had  possession  of  the  goods — Colbath 
V.   Hoefer    (Or.)    73   Pac.   10. 

57.  Van  Husan  v.  Omaha  Bridge  &  T.  R. 
Co.,  118  Iowa,  366.  Mortgagor  cannot  deny 
his  title,  if  mortgage  contains  words  which 
under  1  Starr  &  C.  St.  p.  924,  5  11  amount 
to  full  covenants — Roderick  v.  McMeekin 
(111.)  68  N.  E.  473.  Where  one  has  an 
interest  in  land  and  a  claim  against  it 
he  is  estopped  to  assert  his  claim  against 
one  to  whom  he  has  mortgaged  his  interest 
— Butler  V.  Butler  (S.  C.)  45  S.  E.  184.  Chat- 
tel mortgagor  cannot  deny  that  he  owned 
the  goods — Layson  v.  Cooper,  174  Mo.  211. 
Grantor  with  warranty  may  claim  from  gran- 
tee for  use  and  occupation  before  the  deed 
— Woodcock   V.   Baldwin    (La.)    34   So.    440. 

58.  Grantor  is  estopped  to  deny  grantee's 
easement  in  streets  described  in  a  plat  re- 
ferred to  in  the  deed — Cleaver  v.  Mahanke 
(Iowa)  94  N.  V7.  279;  Drew  v.  Wiswall 
(Mass.)  67  X.  E.  666;  Driscoll  v.  Smith 
(Mass.)  68  N.  E.  210;  Mann  v.  Bergmann, 
203   111.   406. 

."59.  Summerfleld  v.  White  (W.  Va.)  46  S. 
E.   154. 

60.     The  grantee  Is  estopped  to  deny  that 


the  grantor  had  a  title  to  convey  (Muller 
V.  Hoth  [La.]  34  So.  162)  but  two  deeds, 
one  of  which  has  expired  by  limitation  and 
the  other  of  which  has  never  been  deliv- 
ered, do  not  estop  grantee  to  dispute  gran- 
tor's title — Drake  v.  Howell  (N.  C.)  45  S. 
E.  539.  One  claiming  under  a  deed  cannot 
question  itn  validity — Granger  v.  Sallier  (La.) 
34  So.  431.  One  claiming  rights  in  land  un- 
der contract  from  a  certain  person,  cannot 
deny  the  title  of  that  person's  grantee— 
Monds  v.  Elizabeth  City  Lumber  Co.,  131  N. 
C.  20.  The  rule  that  where  a  deed  Is  sub- 
ject to  certain  incumbrances  the  grantee 
cannot  dispute  their  validity  (see  Mortgages) 
does  not  apply  to  an  incumbrance  not  known 
to  either  party  (Gill  v.  Patton,  118  Iowa,  88) 
nor  does  the  assumption  of  a  first  mortgage 
estop  the  grantee  to  attack  a  second — Wel- 
bon  V.  Webster  (Minn.)  94  N.  W.  550.  Mort- 
gagee cannot  hold  adversely — Stancill  v 
Spain  (N.  C.)  45  S.  E.  466.  Grantee  cannot 
claim  in  derogation  of  an  express  reserva- 
tion— Hughes  V.  South  Bay  School  Dist. 
(Wash.)  73  Pac.  778.  One  entering  into  pos- 
session under  a  qualified  grant  is  estopped 
to  assert  any  greater  interest — Knickerbock- 
er Ice  Co.  V.  New  York,  85  App.  Div.  (N. 
Y.)  530.  The  grantee  of  a  patentee  cannot 
by  obtaining  a  new  patent  destroy  reserva- 
tions in  his  deed — Sandy  River  Cannel  Coal 
Co.  v.  White  House  Cannel  Coal  Co.,  24  Ky 
L.  R.   1653,    72  S.  W.   298. 

61.  Hanley  v.  Kraftczyk  (Wis.)  96  N  W 
820. 

62.  Hallyburton  v.  Slagle,  132  N.  C.  947. 
Conveyance  by  remainderman  (Nichols  v.* 
Guthrie,  109  Tenn.  535)  or  expectant  heir- 
Johnson  V.  Johnson,  170  Mo.  34.  59  L.  R.  A. 
748.  Covenant  that  grantor  and  his  heirs 
would  never  claim  adversely — Shepherd  v 
Kahle    (Wis.)    97   N.   W.    506. 

Where  the  deed  was  void  because  the  land 
was  adversely  held  (Altemus  v.  Nichols 
[Ky.]  74  S.  W.  221)  or  where  the  grantor 
had  no  title  of  record  (Wheeler  v.  Young 
[Conn.]  55  Atl.  670)  after  acquired  title  does 
not   pass. 

63.  Subsequently  acquired  title  does  not 
accrue  to  a  purchaser  at  tax  sale  for  taxes 
levied  against  grantee  (Wilson  v.  Fisher, 
172    Mo.    10)    but    does    inure    to    one    hold- 


1132 


ESTOPPEL. 


§4 


or  capacity.®*  The  subsequently  acquired  title  must  amount  to  an  estate  in  the 
land/^  and  no  larger  quantum  of  estate  will  enure  than  was  originally  conveyed.®' 
§  4.  In  pais. — The  general  doctrine  of  estoppel  in  pais  is  that  one  cannot 
deny' the  existence  of  a  state  of  facts  on  which  he  has  by  false  representation/' 
silence,  or  acquiescence/*  or  misleading   conduct/^   or   asseverations   of   title   or 


ing  by  quitclaim  from  the  grantee — Johnson 
V.    Joiinson,    170    Mo.    34. 

64.  One  conveying  lands  Impressed  with 
a  trust  may  subsequently  acquire  the  in- 
terest of  the  beneficiary — Condit  v.  Bigalow 
(N.    J.    Eq.)    54   Atl.    160. 

One  conveying  for  a  corporation  cannot 
set  up  title  subsequently  acquired  by  him 
personally — Central  Coal  &  Iron  Co.  v.  Walk- 
er's Ex'x,  24  Ky.  L.  R.   2191,  73  S.  W.  778. 

65.  The  equitable  interest  arising  from  a 
contract  to  purchase  does  not  inure  to  the 
grantee  where  it  was  afterward  lost  by  de- 
fault— Kentucky  Land  &  Immigration  Co. 
V.  Crabtree,  24  Ky.  L.  R.  743.  70  S.  W.  31. 
Purchase  of  emblements  from  tenant  does 
not  accrue  to  grantee — Simanek  v.  Nemetz 
(Wis.)    97    N.    W.    508. 

66.  Conveyance  of  an  easement  does  not 
carry  after  acquired  rights — Home  v.  Hutch- 
ins  (N.  H.)  55  Atl.  361.  Quitclaim  does  not 
pass  after  acquired  title  (Taylor  v.  Wain- 
man,  116  Ga.  795;  Morrison  v.  Whiteside, 
116  Ga.  459)  nor  any  deed  not  containing 
covenants  of  seisin  or  warranty  (Altemus 
v.  NickeU,  24  Ky.  L.  R.  2401,  74  S.  W.  245) 
but  a  quitclaim  with  habendum  to  grantee 
and  his  heirs  forever  will — West  Seattle 
Land  &  Imp.  Co.  v.  Novelty  Mill  Co.,  31  Wash. 
435,  72  Pac.  69;  Garlick  v.  Pittsburgh  &  W. 
R.  Co.,  67  Ohio  St.  223.  Mortgage  without 
covenants  does  not  attach  to  subsequently 
acquired  title — Donovan  v.  Twist,  85  App. 
Div.   (N.  Y.)   130. 

67.  By  owner  to  subcontractor  as  to  terms 
of  contract — Rath  v.  Orr  (Iowa)  93  N.  W. 
489.  By  wife  that  borrowed  money  was  for 
her  separate  estate  (National  Lumberman's 
Bank  v.  Miller  [Mich.]  91  N.  W.  1024)  by  car- 
rier that  it  held  bills  of  lading — Schlichting 
V.  Chicago,  etc.,  R.  Co.   (Iowa)    96  N.  W.   959. 

One  obtaining  property  for  another  by 
representing  himself  as  the  latter's  agent, 
cannot  deny  such  person's  ownership  there- 
of  State  v.  Whitworth,  30  Wash.  47,  70  Pac. 

254.  Directors  representing  that  the  stock 
was  paid  up  are  estopped  to  deny  liability 
on  a  contract  because  it  was  not — Dwinnell 
V.  Minneapolis  F.  &  M.  Mut.  Ins.  Co,  (Minn.) 
97    N.    W.    110. 

Must  be  actual  or  constructive  Intent  that 
the  representations  should  be  acted  on — 
Booth  v.  Lenox  (Fla.)  34  So.  566.  Represen- 
tation by  one  that  his  signature  was  genuine 
works  an  estoppel  notwithstanding  the  stat- 
ute of  frauds — Union  Cent.  Life  Ins.  Co.  v. 
Johnson's   Adm'x    (Ky.)    76   S.   W.    335. 

Statements  as  to  future  action  of  city 
council,  being  of  opinion,  do  not  estop — 
Marsh  v.  City  of  Bridgeport,   75   Conn.   495. 

Representation  as  to  amount  of  "present" 
debt  held  to  work  an  estoppel  as  to  such 
amount  as  against  security  thereafter  given 
— Williams  v.  Verity,  98  Mo.  App.  654. 

68.  The  mental  condition  of  one  falling 
to  assert  title  is  to  be  considered — Guernsey 
v.  Fulmer  (Kan.)  71  Pac.  578.  No  estoppel 
can  be  predicated  on  failure  to  deny  a  state- 
ment   in    the    party's    presence    unless    It    la 


clear  that  he  heard  It — Powers  v.  McKnight 
(Tex.    Civ.    App.)    73    S.    W.    549. 

Illustrations.  Allowing  party  to  act  on 
faith  of  note  estops  maker  from  setting  up 
defects  which  he  then  knew — Waterman  v. 
Waterman.  85  N.  Y.  Supp.  377.  Acquies- 
cence in  insufficient  notice  to  terminate 
lease — Baltimore  Dental  Ass'n  v.  Fuller  (Va.) 
44  S.  E.  771.  30  years'  acquiescence  in  oral 
establishment  of  boundary — Campbell  v. 
Combs  (Ky.)  77  S.  W.  923.  Acquiescence  In 
breach  of  terms  of  lease — Stoddard  v.  Gal- 
lagher (Mich.)  94  N.  W.  1051.  Subscriber 
not  objecting  to  construction  after  time  lim- 
ited cannot  cancel  subscription — Horton  v. 
Erie   Preserving  Co..   85   N.   Y.   Supp.   503. 

Permitting  expenditures  or  improvements. 
Allowing  another  to  expend  money  on  lands 
(Price  v.  Stratton  [Fla,]  33  So.  644;  First 
German  Reformed  Church  v.  Summit  County 
Com'rs,  23  Ohio  Circ.  R.  553;  Wolfinger  v. 
McFarland  [N.  J.  Eq.]  54  Atl.  862:  Lowther 
Oil  Co.  V.  Miller-Sibley  Oil  Co.  [W.  Va.]  44 
S.  E.  433;  Despard  v.  Bennett  [T\'.  Va.]  44 
S.  E.  448;  Lydick  v.  Gill  [Neb.]  94  N.  W. 
109;  Cobban  v.  Hecklen,  27  Mont.  245,  70 
Pac.  805)  or  allowing  property  to  be  pur- 
chased as  that  of  another  (Barchent  v.  Sel- 
leck  [Minn.]  95  N.  W.  455)  without  assert- 
ing claim  of  title. 

Concealment  of  marriage  held  to  estop  to 
assert  homestead  rights — Cahill  v.  Dickson 
(Tex.  Civ.  App.)  77  S.  W.  281.  Acquiescence 
in  appropriation  of  water  riglits  by  another 
estops  to  claim  the  same — Orient  Min.  Co. 
v.  Freckleton  (Utah)  74  Pac.  652.  Allowing 
improvements  on  faith  of  contract  to  sell 
estops  to  plead  statute  of  frauds — Coleridge 
Creamery  Co.  v.  Jenkins  (Neb.)  92  N.  W. 
123.  Permitting  expenditure  under  contract 
with  knowledge  of  ground  of  rescission — 
Beardsley  v.  Clem,  137  Cal.  328,  70  Pac.  175. 
Government  held  "estopped"  to  question 
validity  of  patent  to  land — United  States  v. 
Stinson    (C.    C.    A.)    125    Fed.    907. 

Kno^vledge  of  person  claiming  estoppel. 
There  is  no  estoppel  if  the  person  making 
the  improvement  knew  of  the  adverse  inter- 
est (Bright  v.  Allan,  203  Pa.  394:  Price  v. 
Stratton  [Fla.]  33  So.  644)  or  relied  on  rec- 
ords and  was  not  misled  (Strahl  v.  Smith.  30 
Colo.  392,  70  Pac.  677)  nor  where  record  title 
is  plain  (Sanborn  v.  Van  Duyne  [Minn.]  96 
N.  W.  41)  nor  where  the  Improvements  were 
made  under  an  express  condition  with  owner 
which  has  been  broken  (Griswold  v.  Minne- 
apolis, etc.,  R.  C.  [N.  D.]  97  N.  TV.  538)  nor 
wheri  notice  of  claim  ■«''as  given  though  It 
was  misunderstood — Rhodes  v.  Stone,  25  Ky. 
L.  R.  921,  76  S.  W.  533.  One  continuously  in 
possession  of  land  is  not  estopped  to  assert 
his  cotenancy  therein  against  one  to  whom 
his  cotenant  attempted  to  convey  the  whole 
— Truth  Lodge  v.  Barton  (Iowa)  93  N.  W. 
106. 

Knowledge  or  Intent  of  person  estopped 
and  diity  to  speak.  Intent  to  deceive  Is  not 
necessary  (Lydick  v.  Gill  [Neb.]  94  N.  W. 
109),  but  the  party  must  know  of  his  riglits 


§  4 


IN  PAIS. 


1133 


right/*  induced  anothor  to  act"^  to  his  prejudice/-  and  witliout  his  fault  or  negli- 


(St.  Louis  Safe  Deposit  &  Sav.  Bank  v.  Ken- 
nett  Estate  [IMo.  App.]  74  S.  W.  474,  dis- 
cussing the  rules  of  estoppel  generally; 
Parkey  v.  Ramsey  [Tenn.]  76  S.  TV.  812) 
though  It  has  been  held  that  an  owner  in- 
ducing purchase  from  another  is  estopped 
though  he  Tvas  ignorant  of  his  own  title 
(Chambers  v.  Bookman  [S.  C]  46  S.  E. 
39;  Ward  v.  Cameron  [Tex.  Civ.  App.]  76  S. 
W.  240)  and  such  an  estoppel  does  not 
prevent  the  setting  up  of  after  acquired 
title — Kentucky  Union  Co.  v.  Patton,  24  Ky. 
L.   R.    701,    69    S.   W.   791. 

Silence  of  heirs  during  the  life  of  their 
ancestor — Snyder  v.  Elliott,  171  Md.  362. 
There  is  no  estoppel  where  owner  did  not 
know  of  encroachment  until  it  was  complete 
— Pocahontas  Light  &  T\''ater  Co.  v.  Brown- 
ing  (W.  Va.)    44   S.   E.   267. 

69.  Insurance  company  inadvertently  send- 
ing out  premium  notice  at  the  wrong  rate 
is  not  estopped  to  demand  premiums  for  the 
rest  of  the  term  at  the  true  rate — Smallwood 
V.  Life  Ins.  Co.  of  Virginia  (N.  C.)  45  S.  E. 
519.  Employer  approving  accounts  based  on 
the  theory  that  the  employe  is  entitled  to 
a  certain  salary  is  estopped  to  deny  it  after 
he  has  continued  in  the  service  on  the  faith 
thereof — Moller  v.  Gates  Land  Co.  (Wis.)  97 
N.  W.  174.  Allowing  certain  members  of 
a  church  to  vote  on  all  questions  estops 
the  other  members  from  questioning  their 
right — Davie  v.  Heal,  86  App.  Div.  (N.  Y.) 
517. 

Clothing  another  with  apparent  authority. 
One  putting  record  title  to  land  in  another 
is  estopped  as  against  one  extending  credit 
on  the  faith  thereof  (Rieschick  v.  Klingel- 
hoefer,  91  Mo.  App.  430)  but  possession  of 
personal  property  gives  no  apparent  right 
to  sell  the  same — Rogers  v.  Dutton,  1S2  Mass. 
187;  McGinley  v.  Brechtel  (Neb.)  95  N.  W.  32. 
Where  a  husband  takes  title  in  his  own 
name  on  a  purchase  by  the  wife,  without 
her  knowledge,  she  is  not  estopped — Wool- 
sey  V.  Henn,  83  N.  T.  Supp.  394. 

Party  held  estopped  to  allege  that  he  had 
discharged  his  attorney — Butcher  v.  Quinn, 
86  App.  Div.  (N.  T.)  391.  This  subject  is 
more  fully  discussed  in  Agency,  ante,  p.  45; 
and,  as  to  corporate  agents  and  officers  In 
Corporations,  ante,  p.  773. 

Giving  appearance  of  solvency.  One  giv- 
ing notes  to  bank  to  make  it  solvent  is  es- 
topped to  allege  want  of  consideration  there- 
for against  creditors — Skordal  v.  Stanton 
(Minn.)  95  N.  W.  449;  Murphy  v.  Gumaer 
(Colo.  App.)  70  Pac.  800.  Furnishing  money 
to  a  debenture  company  for  its  guaranty  fund 

Christian  v.  Michigan  Debenture  Co.  (Mich.) 

96  N.  W.  22.  Creditor  held  not  estopped  by 
statement  to  prospective  creditors  that  he 
would  not  press  his  claim — Rosencranz  v. 
Swofford  Bros.  Dry  Goods  Co.  (Mo.)  75  S.  W. 
445.  One  who  was  induced  by  fraud  to  buy 
corporate  stock  giving  his  notes  therefor  and 
as  part  of  the  contract  entering  into  the  em- 
ploy of  the  corporation  is  not  estopped  by 
the  sale  of  his  notes  as  such  employe  to  later 
defend  for  the  fraud — Deppen  v.  German- 
American  Title  Co..  24  Ky.  L.  R.  1110,  70  S. 
W.  868. 

70.  Recital  of  sale  of  certain  land  to  A 
in  a  surrender  of  land  to  execution,  is  an 
estoppel  as  to  one  purchasing  the  land  of  A 


— York  V.  East  Jellico  Coal  Co.,  25  Ky.  L. 
R.  927,  76  S.  W.  532.  One  disclaiming  title 
cannot  set  up  a  claim  against  one  -R'ho  pur- 
cliased  from  another  on  the  faith  thereof 
though  the  disclaimer  was  made  in  ignorance 
of  his  rights — Ward  v.  Cameron  (Tex.  Civ. 
App.)  76  S.  W.  240;  Chambers  v.  Bookman  (S. 
C.)  46  S.  E.  39.  But  see  Parkey  v.  Ramsey 
(Tenn.)  76  S.  W.  812.  Exporter  estopped  to 
deny  title  as  against  one  buying  on  faith 
of  his  custom  house  declaration — Simar  v. 
Shea,  85  N.  Y.  Supp.  457.  Admission  by 
owner  of  verbal  authority  to  another  to 
sell  is  an  estoppel  in  favor  of  one  claiming 
under  such  person — Northington  v.  Granade 
(Ga.)  45  S.  E.  447.  Where  there  was  a  con- 
tract to  cut  timber  on  shares  a  statement 
by  the  owner  to  the  subcontractor  that  he 
had  received  his  share  estops  him  to  claim 
any  of  the  remainder  against  the  subcon- 
tractor— Plotts  v.  Warburton,  20  Pa.  Super. 
Ct.    496. 

71.  One  cannot  claim  an  estoppel  from 
that  by  whicli  his  conduct  was  not  influenced 
— First  Nat.  Bank  v.  Ragsdale,  171  Mo.  168; 
Booth  V.  Lenox  (Fla.)  34  So.  566;  Waggoner 
V.  Dodson  (Tex.)  73  S.  W.  517;  Evans  v. 
Odem,  30  Ind.  App.  207;  Roach  v.  Springer 
(Tex.  Civ.  App.)  75  S.  W.  933.  Relying  on  rec- 
ord title,  and  not  on  silence  of  owner — Strahl 
V.  Smith,  30  Colo.  392,  70  Pac.  677.  Pull 
knowledge  of  facts — Gray  v.  Zelmer  (Kan.) 
72  Pac.  228;  Perkins  Lumber  Co.  v.  Thomas, 
117  Ga.  441;  Bright  v.  Allan,  203  Pa.  394; 
Price  V.  Stratton  (Fla.)  33  So.  644;  Beacon 
Trust  Co.  V.  Souther  (Mass.)  67  N.  E.  345. 
Record  title  plain — Sanborn  v.  VanDuyne 
(Minn.)  96  N.  W.  41.  No  estoppel  to  attack 
encroachment  where  it  was  not  known  until 
after  construction  was  complete — Pocahon- 
tas Light  &  Water  Co.  -v.  Browning  (W.  Va.) 
44  S.  E.  267.  A  statement  by  an  injured 
employe  exonerating  the  employer  from  lia- 
bility is  a  mere  admission  and  not  an  estop- 
pel— Southern  Bauxite  Min.  &  Mfg.  Co.  v. 
Fuller,  116  Ga.  695.  Silence  does  not  estop 
an  adjoining  owner  to  object  to  an  encroach- 
ment on  a  highway — Ackerman  v.  True.  175 
N.  Y.  353.  Debts  not  shown  to  have  been 
incurred  on  faith  of  promise  to  pay  for  serv- 
ices— Shugart  v.  Shugart  (Tenn.)  76  S.  W. 
821. 

72.  Lawrence  v.  Cannavan  (Conn.)  56  Atl. 
556;  Conway  v.  Supreme  Council,  137  Cal. 
384,  70  Pac.  223;  Columbus  State  Bank  v. 
Carrig  (Neb.)  92  N.  W.  324.  Part  payment 
of  debt  not  an  estoppel  to  deny  balance 
when  no  rights  of  creditors  are  prejudiced 
— O'Malley  v.  Wagner  (Ky.)  76  S.  W.  356; 
Winegardner  v.  Equitable  Loan  Co.  (Iowa) 
94  N.  W.  1110.  Abandonment  of  an  action 
without  prejudice  is  not  sufficient  though 
costs  were  incurred — Hughes  v.  New  York 
Life  Ins.  Co.  (Wash.)  72  Pac.  452.  A  prom- 
ise by  the  maker  of  a  note  to  pay  the  same, 
made  to  one  who  stated  that  he  held  it 
only  for  collection,  does  not  estop  the  maker 
to  set  up  a  counterclaim  (Stuart  v.  Harmon 
[Ky.]  72  S.  W.  365)  nor  does  a  promise  to 
pay  made  to  an  indorsee  estop  the  maker 
to  allege  defenses  of  which  the  Indorsee 
had  notice — Wilson  v.  Riddler,  92  Mo.  App. 
335.  One  who  has  given  distinct  notice  of 
his  refusal  to  waive  delay  in  performance 
Is    not   estopped    by    failure   to   promptly    re- 


1134 


ESTOPPBIi. 


§4 


gence ;"  nor  can  he  assert  to  another's  prejudice,  matters  inconsistent  with  his  own 
contracts/*  or  repudiate  a  transaction  from  which  he  has  received  benefits."     The 


turn  securities— Barrett  v.  Twin  City  Power 
Co..   118  Fed.   861. 

73.  First  Nat.  Bank  v.  Andrews  (Tex.  Civ. 
App.)  77  S.  W.  956.  Negligence  in  not  read- 
ing contract  does  not  estop  wiiere  there  was 
fraud— Spelts  v.  Ward  (Neb.)  96  N.  W.  56; 
Le  Mond  v.  Harrison  (Colo.  App.)  70  Pac. 
956.  Representations  by  agent  of  building 
association  in  conflict  with  the  terms  of  the 
contract  do  not  in  the  absence  of  fraud 
create  an  estoppel — Noah  v.  German-Amer- 
ican Bldg.   Ass'n    (Ind.  App.)    68   N.  E.   615. 

74.  A  grantee  who  joins  in  an  agreement 
extending  time   for   payment   of  a   mortgage 
on   the    land   cannot   deny   knowledge    of   an 
assumption   of  such   mortgage   in   his   deed— 
Cruzen  v.   Pottle   (Neb.)    91   N.  W.   858.     One 
who    has    contracted    for    the    abandonment 
by   another    of   a   competing    enterprise    can- 
not   later    assert    that    the    price    paid    was 
excessive— Barrett   v.    Twin   City   Power   Co., 
118  Fed.  861.     Lien  claimants  contracting  for 
payment  of  a  mortgage  with   knowledge   of 
a    defense     thereto    cannot    thereafter    urge 
the   same — Jones   v.    Garrigues,   75    App.   Div. 
(N.    T.)    539.      The    maker    of    a    note    is    not 
estopped  from  showing  fraud  by  paying  dis- 
count on  several  renewals  where  they  were 
not   for    his   benefit — Adams    v.    Ashman,    203 
Pa.  536.     Giving  of  a  bond  to  dissolve  a  me- 
chanic's   lien    which    bond    recited    that    the 
construction  contract  was  m.ade  by  obligor's 
agent  on  his  behalf  estops  him   from   claim- 
ing that  he  was  not  liable  on  the  contract — 
Congress  Const.  Co.  v.  Worcester  Brew.   Co., 
182  Mass.    355.     Acquiescence  by   one   having 
an    equitable    Interest    in    a    judgment    to    a 
compromise    thereof — Moore   v.    Cloquet   Lbr. 
Co.,    87    Minn.    264.      One    who    has    given    an 
absolute   deed   as   security   for   a   note   is   not 
estopped    to    assert   the    true    nature    thereof 
against   an   assignee   with    notice   by    receiv- 
ing from  the  assignee  a  receipt  for  the  prop- 
erty as  a  payment — State  v.  Mellette  (S.  D.) 
92    N.   W.    395.      Where   consumer    equips    his 
house  for  use  of  gas  and  company  furnishes 
it  without  questioning  contract  for  five  years 
it    cannot    claim    that    provision    therein    for 
continuance    as    long    as    consumer    desired 
lacked    mutuality— Corbet    v.    Oil    City    Fuel 
Supply  Co.,  21  Pa.  Super.  Ct.  80.     A  principal 
performing  a  contract  made  by  his  agent  is 
estopped    to    hold    the    agent    for   any    excess 
of  power  therein — Hale  Elevator  Co.  v.  Hale, 
201    111.    131.      Payment    of    dues    under    pro- 
test after  reduction  of  the  amount  of  death 
benefit  does  not  estop  the  member  to  allege 
invalidity     of     such     reduction — Williams    v. 
Supreme   Council.   A.   L.    of   H.,    80    App.    Dlv. 
(N.    T.)     402.      One    procuring    surrender    of 
note    and    collateral    in    exchange    for    a   new 
note    is    estopped    to    deny    that    the    other 
party    owned    the    note    surrendered — Zuendt 
V.   Doerner    (Mo.    App.)    73    S.    W.    873.      Pur- 
chasing   part    of    wife's    goods    as    separate 
property  estops  husband  to  allege  that  they 
were    not — Standard    Furniture    Co.    v.    Van 
Alstine.    31    Wash.    499,    72    Pac.    119.      Agent 
estopped   to  claim  that  he  acted  for  himself 
after    allowing   principal    to    assum.e    the    re- 
sults of  his  action — Seacoast  R.  Co.  v.  Wood 
(N.    J.    Eq.)    56    Atl.    337.      A   contract    to   re- 
move   an    unauthorized    dam    does    not    estop 
the  party  from  obtaining  legislative  author- 


ity to  build  another — Manigault  v.  Ward, 
123  Fed.  707.  A  member  of  an  assessment 
association  may  retain  a  bond  sent  him  as 
evidence  of  his  membership  without  estop- 
pel to  claim  under  the  constitution  rights 
denied  by  such  bond — Knights  Templars'  & 
M.  Life  Indemnity  Co.  v.  Vail  (111.)  68  N.  E. 
1103.  A  depositor  who  accepts  an  agreement 
by  which  the  bank  is  allowed  to  reopen  can- 
not allege  its  invalidity — State  v.  Germanla 
Bank  (Minn.)  95  N.  W.  1116.  Owner  mak- 
ing payments  on  estimates  cannot  later  ob- 
ject that  they  were  made  by  the  wrong  per- 
son— Hopkins  v.  International  Lumber  Co. 
(Wash.)  73  Pac.  1113.  Where  one  accepts  a 
transfer  as  sufilcient  and  rights  are  given  up 
on  the  faith  thereof  he  cannot  afterwards 
question  it — Davis  v.  National  Surety  Co. 
(Cal.)  72  Pac.  1001.  Guarantor  delivering 
fidelity  bond  held  estopped  to  deny  that  pre- 
mium was  paid — Pacific  Nat.  Bank  v.  Aetna 
Indemnity  Co.  (Wash.)  74  Pac.  590.  Prac- 
tical construction  of  contract — Masterson  v. 
Heitmann  (Tex.  Civ.  App.)  77  S.  W.  983. 
City  enforcing  obligation  of  franchise  can- 
not deny  its  validity — New  Orleans.  S.  F.  & 
L.   R.  Co.  V.  New  Orleans,   109  La.   194. 

75.     One  borrowing  from  a  mr.rried  woman 
is  estopped  to  deny  her  capacity  to  sue  on  the 
note — Richards  v.   Bippus,  18  App.  D.  C.   293. 
One  holding  property  under  a  decree  cannot 
question   its   validity — Lincoln   v.   Lincoln    St. 
R.  Co.   (Neb.)   93  N.  W.  766.     Informal  execu- 
tion cannot  be  urged  after  receiving  benefits 
— Winslow  V.  Baltimore  &  O.  R.  Co.,  188  U.  S. 
646;  Collins  v.  Cobe,  104  111.  App.  142.     Clerk 
receiving    compensation    under    contract    In- 
cluding services  as  notary  cannot  claim  that 
contract    to    receive    less    than    legal    notary 
fees  is  invalid — Second  Nat.  Bank  v.  Fergu- 
son, 24  Ky.  L.  R.  1298,  71  S.  W.  429.     Receiv- 
ing security   at   creditors'   meeting  estops   to 
attack    security    given      another      creditor — 
Conde  v.  Lee.  171  N.  Y.  662.     One  who  has  re- 
paired  a  drainage   ditch   and   derived   benefit 
from  It  cannot  enjoin  it  as  a  nuisance — Gros- 
jean  v.  Lulow,  118  Iowa,  346.     One  receiving 
the  purchase  price  at  a  trustee's  sale  cannot 
impeach   the  purchaser's   title   for   defects   In 
the  trustee's  appointment — White  v.  Jenkins 
(Miss.)    33   So.    287.      Stockholders   cannot   al- 
lege that  a  contract  w^hereby  a  person  should 
become  an  officer  of  the  corporation  and  pur- 
chase certain  stock  to  be  repurchased  at  the 
end    of    his   Incumbency    was    against    public 
policy  where  they  have  received  the  benefits 
thereof  for  four  years — Bonta  v.  Gridley,  77 
App.    Div.    (N.    Y.)    33.      Where    one    receives 
more  value  than  he  Is  entitled  to  by  partition 
and    the    other    lands    have    passed    into    the 
hands    of    third    persons    he    cannot    allege 
want  of  jurisdiction  to  make  the  partition — • 
Greer  v.   Ford   (Tex.   Civ.   App.)    72   S.   W.   73. 
Acceptance   of   Income    from    trust    for    many 
years   estops  the  beneficiary  to   question   tlie 
validity   of  the   trust — Dresser   v.    Travis,    39 
Iilisc.    (N.   Y.)    358.      Chattel    mortgagor   can- 
not deny  that  he  owned  the  goods — Layson  v. 
Cooper,  174  Mo.   211.     One  taking  lands  by  a 
devise  cannot  dispute  the  lien  of  a  debt  with 
which    the    same    was    charged — Ballard    v. 
Gamplin    (Ind.)    67   N.   E.    505.      Creditors   ac- 
cepting proceeds  of  an  assignee's  sale  cannot 
attack  the  assignment — Lacy  v.  Gunn    (<"il  > 


§4 


IN  PAIS. 


1135 


doctrine  that  one  assuming  a  certain  position  in  the  course  of  judicial  proceedings 
is  precluded  thereby  from  another  inconsistent  therewith  though  not  in  strictness 
one  of  estoppel  is  closely  related  theretoJ«  Election  between  counts,"  estoppel  to 
claim  appellate  review/^  waiver  of  and  election  between  objections/^  and  the  doc- 
trine of  election  between  inconsistent  positions,  are  elsewhere  treated,^"  as  are  the 
related  questions  of  ratification  and  waiver.^^ 

Extent.  Persons  benefited  or  hound. — ^An  estoppel  in  pais  does  not  extend 
beyond  the  reasonable  inferences  from  the  words  or  conduct  creating  it,^^  nor 
apply  to  after-acquired  rights/^  and  is  effective  only  between  the  parties  and  their 
privies,®* 


74  Pac.  156.  One  enforcing  the  terms  of  an 
alleged  contract  cannot  afterward  deny  its 
contractual  character — Grafeman  Dairy  Co. 
V.  St.  Louis  Dairy  Co.,  96  Mo.  App.  495. 
"Where  a  party  to  a  contract  takes  additional 
security  from  an  assignee  thereof  he  can- 
not deny  its  assignability — Flackenstein 
Bros.  Co.  V.  Flackenstein  (N.  J.  Eq.)  53  Atl. 
1043.  Assignment  of  insurance  by  benefi- 
ciary precludes  from  attacking  validity — 
Farmers'  &  T.  Bank  v.  Johnson,  118  Iowa, 
282.  Receivi'.ig  in.snrance  premiums.  Insur- 
ance company  continuing  to  receive  pre- 
miums with  notice  of  a  defense  to  the  policy 
Is  estopped  to  raise  the  same — Alexander  v. 
Grand  Lodge,  A.  O.  U.  W.  (Iowa)  93  N.  W. 
508.  This  branch  of  the  subject  is  Inextrica- 
ble from  the  doctrine  of  waiver,  and  will  be 
specifically  treated  in  Insurance. 

76.  One  procuring  his  own  appointment 
as  tutor  of  his  child  and  filing  an  account  as 
such  cannot  allege  her  illegitimacy  as  a  de- 
fense to  an  attack  on  his  account — Succes- 
sion of  Emonot,  109  La.  359.  Disclaimer  es- 
tops to  object  to  any  decree  in  rem — Bank- 
ers' BIdg.  &  Loan  Ass'n  v.  Thomas  (Neb.)  92 
N.  W.  1044.  Stipulation  from  a  position  in- 
consistent therewith — Dupree  v.  Duke,  30 
Tex.  Civ.  App.  360.  Admission  In  a  brief  in 
a  previous  stage  of  the  case  does  not — Leav- 
enworth Light  &  Heating  Co.  v.  Waller,  65 
Kan.  514,  70  Pac.  365.  Stipulation  by  cred- 
itors that  the  expenses  of  obtaining  judg- 
ment by  an  assignee  for  benefit  of  creditors 
were  satisfactory  estops  them  to  object  to  his 
claim  for  commissions  on  such  judgment — 
Woodcock  V.  Reilly  (S.  D.)  92  N.  W.  10.  Pur- 
chase of  property  at  an  execution  sale  does 
not  estop  the  debtor  from  claiming  restitu- 
tion on  reversal  of  the  judgment — Black  v. 
Vermont  Marble  Co..  137  Cal.  683,  70  Pac.  778. 
Admission  of  promise  to  pay  according  to 
the  tenor  of  a  note  does  not  estop  defend- 
ant to  claim  that  the  note  was  delivered  on 
condition — New  Haven  Mfg.  Co.  v.  New  Hav- 
en Pulp  &  Board  Co.  (Conn.)  55  Atl.  604. 
"Where  one  interested  in  an  estate  asks  con- 
firmation of  the  administrator's  account  he 
■cannot  allege  error  therein— In  re  Sher- 
wood's Estate  (Pa.)  56  Atl.  20.  Request  for 
postponement  after  time  to  enter  judgment 
has  expired  does  not  estop  to  object  to  sub- 
sequent rendition  where  there  was  no 
prejudice  to  the  other  party — Lawrence  v. 
Cannavan  (Conn.)  56  Atl.  556.  That  in  a 
former  bill  one  styled  himself  a  citizen  does 
Tiot  estop  him  from  showing  in  a  second  bill 
that  he  is  an  alien — Marthinson  v.  Winyah 
Lumber  Co.,  125  Fed.  633.  Unsuccessful  at- 
tempt to  prove  cause  of  accident  does  not  es- 
top  plaintiff   to   invoke   doctrine   of   res  ipse 


loquitur — Cassady  v.  Old  Colony  St.  R.  Co. 
(Mass.)  68  N.  E.  10.  Statement  as  to  issues 
by  which  no  one  was  misled  is  not  binding — 
Steedman  v.  South  Carolina  &  G.  E.  R.  Co. 
(S.  C.)  45  S.  E.  84.  One  suing  on  a  substituted 
bond  cannot  afterwards  claim  on  that  first 
given — Hesser  v.  Rowley  (Cal.)  73  Pac.  15G. 
One  giving  bond  to  discharge  an  attachment 
cannot  urge  irregularities  in  attachment 
proceedings  as  a  defense — Metcalf  v.  Bock- 
oven  (Neb.)  96  N.  W.  406.  The  court  ex- 
presses doubt  as  to  whether  want  of  juris- 
diction could  be  urged. 

A  plaintiff  cannot  claim  that  defendants 
joined  by  him  are  not  proper  parties — Gleason 
V.  Hawkins  (Wash.)  73  Pac.  533.  Same,  cross 
bill — Bourke  v  Hefter,  104  111.  App.  126.  One 
who  avers  that  a  contract  has  never  become 
operative  cannot  urge  that  prior  contracts 
merged  therein — Stagg  v.  St.  Jean  (Mont.) 
74  Pac.  740.  Obtaining  dismissal  of  appeal 
because  judgment  was  not  final  estops  to  ob- 
ject against  bill  of  review  that  it  was — Tay- 
lor V.  Crook,  136  Ala.  354.  Giving  evidence 
of  a  dedication  in  mitigation  of  damages  in 
one  suit  does  not  estop  the  party  from  deny- 
ing dedication  in  other.s — Hast  v.  Piedmont 
&  C.  R.  Co..  52  W.  Va.  396.  One  suing  to  es- 
tablish a  lien  created  by  a  certain  sale  can- 
not avoid  the  sale — Henry  v.  Thomas  (Tex. 
Civ.  App.)  74  S.  W.  599.  Averment  of  de- 
fendant's negligence  does  not  estop  plaintiff 
from  an  amended  complaint  alleging  that  he 
did  not  know  of  such  negligence  when  origi- 
nal complaint  was  made — Savannah,  F.  &  W. 
R.  Co.  V.  Pollard,  116  Ga.  297.  Implied  ad- 
mission in  answer  of  existence  of  contract 
estops  defendant  from  objection  to  its  in- 
troduction in  evidence — Bushnell  v.  Farmers' 
Mut.  Ins.  Co.,  91  Mo.  App.  523. 

77.  See  Pleading. 

78.  See  Appeal  and  Review. 

79.  See   Saving   Questions    for   Review. 

80.  Election  of  Rights  and  Remedies. 

81.  See  Ratification;  Waiver. 

82.  Hall  V.  Moore   (Neb.)   92  N.  W.   294. 

83.  Estoppel  to  set  up  present  title  by  si- 
lence while  improvements  were  made  on  the 
faith  of  a  conveyance  by  another  does  not 
apply  to  after  acquired  title — Kentucky 
Union  Co.  v.  Patton,  24  Ky.  L.  R.  701.  69  S. 
"W.  791.  Consent  to  a  chattel  mortgage  does 
not  estop  the  party  from  attacking  the  same 
for  sales  by  mortgagor  permitted  by  mort- 
gagee— Brinker  v.  Ashenfelter  (Neb.)  95  N. 
W.  1124.  Silence  by  heirs  during  life  of  their 
ancestor — Snyder  v.  Elliott,  171  Mo.  362. 
"Where  one  contracted  to  sell  two  tracts  and 
represented  that  he  was  unable  to  obtain  title 
to  one  whereupon  the  purchaser  paid  the  full 
price  for  the  other,   after  acquired  title  ac- 


1136 


ESTOPPEL— EVIDENCE. 


§   4 


Application  to  government  or  municipalities. — "While  estoppel  does  not  ordi- 
narily operate  against  a  governmental  body,  it  applies  to  municipalities  in  the 
exercise  of  their  private  powers/'  and  the  underlying  principles  of  estoppel  have 
been  applied  against  the  federal  government  when  it  seeks  the  aid  of  equity.^® 

Pleading. — Estoppel  as  an  element  of  a  cause  of  action,"  or  as  a  defense,^^ 
must  be  specifically  pleaded  ;^^  but  trial  of  the  issue  without  objection  waives 
failure  to  plead  it.^**  Where  the  distinction  between  legal  and  equitable  rights  is 
strictly  preserved,  estoppel  in  pais  is  not  available  in  ejectment,®^  but  the  general 
rule  is  that  courts  of  law  will  take  cognizance  of  an  estoppel. 

EVIDENCE. 


§  1.  Necessity  and  Doty  of  Adducing  Evi- 
dence. A.  Judicial  Notice.  B.  Presumptions 
and  Burden  of  Proof. 

§  2.     Relevancy    and    Materiality. 

§  3.  Competency  or  Kind  of  Evidence  In 
General. 

§  4.     Best    and    Secondary    Evidence. 

§  5.  Parol  Evidence  to  Explain  or  Vary 
Writing. 

§  6.  Hear.say.  A.  General  Rules.  B.  Res 
Gestae.  C.  Admissions  or  Declarations 
against  Interest. 

§  7.  I>oennientary  Evidence.  A.  In  Gen- 
eral— Private     Writings.     B.  Books     of     Ac- 


count. C.  Public  and  Judicial  Records  and 
Documents.  D.  Proceedings  to  Procure  Pro- 
duction of  Documents. 

§  S.  Evidence  Adduced  in  Former  Pro- 
ceedings. 

§  9.  Expert  and  Opinion  Evidence.  A. 
Conclusions  and  Nonexpert  Opinions.  B. 
Subjects  of  Expert  Testimony.  C.  Qualifica- 
tion of  Experts.  D.  Basis  of  Expert  Testi- 
mony and   Examination   of  Experts. 

§  10.     Real    or    Demonstrative    Evidence. 

§  II.  Quantity  Required  and  Probative 
Effect. 


Scope  of  article. — This  article  treats  specifically  of  the  competency  of  evidence; 
the  competency  of  witnesses  and  the  rules  governing  their  examination  being  entirely 
excluded,^  and  questions  of  relevancy  and  sufficiency  of  evidence  except  so  far  as 


crues  to  the  purchaser — Guthrie  v.  Martin,  76 
App.  Div.  (N.  T.)   385. 

84.  Booth  V.  Lenox  (Fla.)  34  So.  BG"?;  Coe 
College  V.  Cedar  Rapids  (Iowa)  95  N.  "W. 
267.  Recitals  in  a  conveyance  are  not  bind- 
ing on  strangers — Davis  v.  Moyels  (Vt.)  56 
Atl.  174.  Stockholders  acting  on  behalf  of 
the  corporation  are  bound  by  an  estoppel 
against  it — Kessler  v.  Ensley.  123  Fed.  546. 
Consent  by  a  widow  personally  does  not  es- 
top her  as  administratrix  under  a  subsequent 
appointment — Rohn  v.  Rohn  (111.)  68  N.  E. 
369.  Estoppel  of  residuary  legatee  to  dis- 
pute specific  legacy  operates  also  against 
creditor  of  former — Austin  v.  Buckman 
(Wis.)  95  N.  W.  128.  Company  formed  to 
take  title  to  irrigation  rights  for  benefit 
of  purchasers  held  not  in  privity  with  irriga- 
tion company — Blakely  v.  Ft.  Lyon  Canal  Co. 
(Colo.)  73  Pac.  249.  Owners  of  stolen  money 
are  not  bound  by  an  estoppel  of  the  person 
receiving  it  to  his  creditors — Lord  v.  Sey- 
mour, 83  N.  Y.  Supp.  88.  Estoppel  as  to 
sureties  to  deny  another's  title  does  not  op- 
erate in  favor  of  creditors — Citizens'  Bank 
V.   Burrus    (INIo.)    77   S.   W.    748. 

85.  City  cannot  question  the  validity  of 
permits  to  lay  tracks  after  they  have  been 
acted  on — People  v.  Blocki,  203  111.  363.  A 
viaduct  after  it  is  laid  under  permission  am- 
biguous as  to  the  width  thereof — Village  of 
Winnetka  v.  Chicago  &  M.  Elec.  R.  Co.  (111.) 
68  N.  E.  407. 

Village  held  not  estopped  by  action  of  trus- 
tees in  approving  grade  crossing  without 
authority  of  railroad  commissioners — Village 
of  Bolivar  v.  Pittsburg,  etc.,  R.  Co..  84  N.  T. 
Supp.  678.  State  board  of  land  commission- 
ers held  not  estopped  by  act  of  Its  register, 


he  having  no  authority  in  respect  thereto — 
Florence  Oil  &  Refining  Co.  v.  Orman  (Colo. 
Vpp.)  73  Pac.  628.  No  estoppel  to  repeal 
•acation  of  street  "where  nothing  w^as  done 
in  reliance  thereon — City  of  Ashland  v. 
Northern  Pac.  R.  Co.  (V\^is.)  96  N.  W.  688. 
Levy  of  taxes  on  land  does  not  estop  a  city 
>r  state  to  claim  title  thereto — Turner  v.  Mo- 
Mle,  135  Ala.  73;  Slattery  v.  Heilperin  (La.) 
34  So.  139;  City  of  Uniontown  v.  Berry,  24 
Ky.  L.  R.  1692,  72  S.  W.  295.  No  estoppel 
from  allowing  occupation  of  unopened  street 
— Russell  v.  Lincoln,  200  111.  511. 

86.  United  States  v.  Stinson  (C.  C.  A.) 
125   Fed.   907. 

87.  Taylor   v.    Patton    (Ind.)    66   N.    E.    91. 

88.  Adams  v.  Adams  (Ind.)  66  N.  E.  153; 
Carthage  v.  Carthage  Light  Co..  97  Mo.  App. 
20;  Western  Realty  Co.  v.  J.Iusser,  97  Mo. 
App.  114;  Leschen  &  Sons  Rope  Co.  v.  Craig 
(Colo.  App.)  71  Pac.  885;  Wisconsin  Farm 
Land  Co.  v.  Bullard  (Wis.)  96  N.  W.  833; 
Carnahan  v.  Brewster  (Neb.)  96  N.  'W.  590; 
Read  v.  Citizens'  St.  R.  Co.  (Tenn.)  75  S.  W. 
1056;  Union  St.  R.  Co.  v.  First  Nat.  Bank  (Or.) 
72  Pac.  586;  George  B.  Loving  Co.  v.  Hesper- 
ian Cattle  Co.  (Mo.)  75  S.  W.  1095;  Union 
State  Bank  v.  Hutton  (Neb.)  95  N.  W.  1061; 
Pratt  V.  Hawes  (Wis.)   95  N.  'KV.  965. 

89.  Averment  of  facts  without  designat- 
ing the  plea  as  one  of  estoppel  held  suffi- 
cient— Rieschick  v.  Klingelhoefer,  91  Mo. 
App.    430. 

90.  McDonnell  v.  De  Soto  Sav.  &  Bldg. 
Ass'n   (Mo.)    75  S.  W.   438. 

91.  Grubbs  v.  Boon,  201  111.  98;  Haney  v. 
Breeden,  100  Va.  781;  Wakefield  v.  Van  Tas- 
sell.  202  111.  41. 

1.     Examination    of   Witnesses;    Witnesses. 


§  lA 


JUDICIAL  NOTICE. 


1137 


they  illustrate  some  general  rule  being  exclncled  to  titles  dealing  with  the  particular 
subject  or  issue  to  which  the  evidence  is  addressed.  Evidence  in  criminal  prosecu- 
tions is  also  treated  elsewhere,^^  though  occasional  holdings  of  undoubted  general 
application  have  been  included, 

§  1.  Necessity  and  duty  of  adducing  evidence.  A.  Judicial  notice. — The 
courts  will  take  judicial  notice  of  matters  of  common  knowledge,^  of  well  established 
principles  of  science,*  of  the  mortality  tables,^  of  the  intoxicating  character  of 
liquors/  of  generally  established  customs,''  of  the  usages  of  business,^  of  matters  of 
history,"  of  the  laws  of  nature,^"  of  the  coincidence  of  days  of  the  week  and  of  the 
month,"  of  the  powers  of  political  bodies,^-  of  the  political  divisions  of  the  state" 
and  their  population,"  of  notaries  public  and  their  residence,"  of  the  organization 
and  terms  of  courts  of  record.^® 

A  court  will  especially  take  judicial  notice  of  its  own  sessions"  and  of  its  rec- 


2.  Indictment  &  Prosecution. 

3.  Of  the  vicious  nature  of  mules — Bor- 
den V.  Falk  Co.,  97  Mo  App.  566.  That  the 
assessed  value  of  property  is  less  than  its 
actual  value — State  v.  Savage  (Neb.)  91  N. 
"W.  716.  Of  common  knowledge  as  to  the 
state  of  an  art  in  determining  the  novelty 
of  a  patented  device — Farmers'  Mfg.  Co  v 
Spruks  Mfg  Co.,  119  Fed.  594.  That  dyna- 
mite is  a  dangerous  explosive — Fitzsimons 
&  Connell  Co.  v.  Braun,  199  111.  390  That 
the  traffic  In  and  shipment  of  live  stock  In- 
creases vearly — Chinn  v.  Chicago  &  A.  R.  Co. 
(Mo  App."*  7F  a  W.  375.  That  methods  of 
instruction  have  changed  in  the  last  tvsrenty- 
five  years,  so  that  competency  to  teach  then 
is  no  evidence  of  present  competency — Peo- 
ple V.  Maxwell,  84  N.  Y.  Supp.  947.  While 
this  ruling  is  put  on  the  ground  of  Judicial 
notice,  it  would  seem  that  the  doctrine  of 
irrelevance  of  conditions  remote  in  point  of 
time  furnishes   a  sounder  basis. 

4.  That  coal  deposits  generate  gas — Poor 
V.  Watson,  92  Mo.  App.  89.  Of  the  nature  of 
vaccination — Commonwealth  v.  Pear  (Mass.) 
66   N.   E.    719. 

5.  Nelson  v.  Branford  Lighting  &  Water 
Co..  75  Conn.  548. 

6.  That  whisky  (Hodge  v.  State,  116  Ga. 
852)  and  beer  (Sothman  v.  State  [Neb.]  92 
N  W.  303)  are  intoxicating,  and  that  bock 
beer  is  a  malt  liquor— Pedigo  v.  Common- 
wealth.  24  Ky.  L.  R.  1029,  70  S.  W.  659. 

7.  Crawford  Co.  v.  Hathaway  (Neb.)  83 
N.  W.   781. 

8.  That  drafts  on  New  York  are  at  a  pre- 
mium—Citizens' State  Bank  v.  Cowles,  39 
Miso.  (N.  Y.)  571.  That  telegraph  wires 
strung  on  poles  are  necessarily  Incident  to 
the  operation  of  a  railroad  will  be  judicial- 
ly noticed  but  not  the  time  required  for 
their  repair — Youree  v.  Vicksburg,  etc.,  R. 
Co.   (La.)   34  So.  779. 

Not  of  colloquial  terms  ("sack  raft  ) — The 
Mary,  123  Fed.   609. 

9.  That  savings  banks  were  chartered 
long  before  the  National  Banking  Act— State 
v.  Franklin  County  Sav.  Bank  &  Trust  Co., 
74  Vt.   246. 

10.  Of  the  hour  when  the  sun  rises  and 
Bets*(Montenes  v.  Metropolitan  Street  R.  Co., 
77  App  Div.  [N.  Y.]  493)  or  when  daylight 
begins  (Cincinnati,  etc.,  R.  Co.  v.  Worthing- 
ton  30  Ind.  App.  663)  and  in  so  doing  may 
consult  the  almanac— Montenes  v.  Metropol- 
itan St.  R.  Co.,  77  App.  Div.  (N.  Y.)   493. 

That  rice  cannot  be  grown  without  water 

Curr.  Law — 72. 


— Barr  v.  Crirdiff    (Tex.  Civ.  App.)    75  S.  W. 

341. 

11.  Jordan  v.  Chicago  &  A.  R.  Co..  92 
Mo.  App.  84;  Dorough  v.  Equitable  Mortg. 
Co.  (Ga.)  45  S.  E.  22;  Ryer  v.  Prudential 
Ins.  Co.,  82  N.  Y.  Supp.  971. 

13.  Conventions — State  v.  LIudahl,  11  N. 
D.   320. 

13.  Of  the  county  in  which  a  given  tov/n- 
ship  Is  located — City  Nat.  Bank  v.  Goodloe, 
etc..  Commission  Co.,  93  Mo.  App.  123.  Of 
the  corporate  capacity  of  the  city  of  St. 
Louis — State  v.  Nolle,  96  Mo.  App.  524.  That 
a  county  seat  established  by  statute  is  with- 
in the  county — State  v.  Buralli  (Nev.)  71 
Pac.  532.  That  a  certain  city  is  the  county 
seat  (Flynt  v.  Eagle  Pass  Coal  &  Coke  Co. 
[Tex.  Civ.  App.]  77  S.  W.  831).  Of  the  county 
in  which  a  certain  section,  town  and  range 
is  located — Parker  v.  Burton,  172  Mo.  85. 
That  the  county  seat  is  not  always  located 
at  the  largest  city  in  the  county — Maricopa 
County  V.  Burnett  (Ariz.)  71  Pac.  908.  That 
two  towns  in  the  same  state  were  in  oppo- 
site directions  from  a  third  town — McGrew 
V.  Missouri  Pac.  Ry.  Co.  (Mo.)  76  S.  W.  995. 
Not  of  the  fact  that  a  point  a  certain  dis- 
tance from  an  unincorporated  village  was 
in  a  certain  county — Anderson  v.  Common- 
wealth (Va.)  42  S.  B.  865.  Internal  economy. 
Not  of  the  "house  line"  on  a  certain  street — 
New  York  v.  Childs,  84  N.  Y.  Supp.  164. 
Nor  the  width  of  streets — Coe  College  v. 
Cedar  Rapids   (Iowa)    95  N.  W.   267. 

14.  Of  population  of  a  county  as  shown 
by  U.  S.  census — Board  of  Com'rs  v.  Garty 
(Ind.)  68  N.  E.  1012.  Or  that  a  city  is  of 
the  first  class — Ft.  Scott  v.  Elliott  (Kan.) 
74  Pac.  609.  But  the  population  of  city  can- 
not be  judicially  noticed  to  be  greater  than 
is  stated  by  public  records — Adams  v.  El- 
wood    (N.   Y.)    68  N.    E.   126. 

15.  That  a  person  taking  an  affidavit  was 
a  notary  in  a  certain  county — Black  v.  Min- 
neapolis, etc..  R.  Co.  (Iowa)  96  N.  W.  984. 
Of  what  ward  of  a  city  in  the  county  where 
the  court  sits  a  notary  has  been  appointed 
for — Russell  v.  Huntsville  Ry>.,  Light  & 
Power  Co.  (Ala.)  34  So.  855. 

16.  Who  are  judges — Indianapolis  St.  R. 
Co.  v.  Lawn,  30  Ind.  App.  515.  Of  the  com- 
mencement of  terms  of  court  as  fixed  by 
statute  but  not  their  adjournment — Hadley  v 
Bernero,  97  Mo.  App.  314;  Lanckton  v.  Unit- 
ed States,  18  App.  D.  C.  348;  Emery  v.  League 
(Tex.  Civ.  App.)  72  S.  W.  603;  Mo<»s  v.  Sugar 
Ridge  Tp.    (Ind.)    68   N.   E.  896. 


1138 


EVIDENCE. 


§   IB 


ords,"  but  not  of  the  sessions  of  another  court  /»  nor  will  a  federal  court  judicially 
notice  the  rules  of  a  state  court. ^° 

Judicial  notice  is  taken  of  public  statutes,"  of  executive  rules  made  and  pub- 
lished pursuant  to  statute;"  but  not  of  city  ordinances/^  though  courts  having 
jurisdiction  of  a  prosecution  under  an  ordiDa.nce  take  judicial  notice  of  such  ordi- 
nance.2*  Notice  will  not  be  taken  of  a  foreign  law,"  the  statute  of  another  state^^' 
nor  of  the  laws  of  an  Indian  nation.^^ 

(§1)  B.  Presumptions  and  burden  of  proof. — The  so-called  conclusive  pre- 
sumptions are  mere  rules  of  law  and  form  no  part  of  the  law  of  evidence.^'  Pre- 
sumptions properly  so  called  may  be  divided  into  those  arising  by  way  of  logical 
deduction  or  inference  from  facts  in  evidence,  and  those  arising  independently  of 
deduction  and  based  on  considerations  of  convenience  or  public  policy.  Of  the  first 
class  are  the  presumption  of  death  from  continued  absence,^'  of  the  continuance  of 
a  state  of  facts  once  shown  to  exist^°  that  a  witness  withheld,"  or  a  document  de- 
stroyed or  not  produced,^^  is  unfavorable  to  the  party  withholding  it,  and  a  great 
variety  of  specific  presumptions  based  on  the  ordinary  course  of  human  conduct  and 
dealings,  illustrations  of  which  will  be  found  in  the  note.*'     Among  those  presump- 


17.  Hadley  v.  Bernero,  97  Mo.  App.   314. 

18.  Stewart  v.  Tlosengren  (Neb.)  92  N.  "W. 
686.  Of  ancillary  proceedings  in  the  same 
suit — Jeffries  v  Smith  (Tex.  Civ  App.)  73  S. 
W.  48. 

19.  Hadley  v.  Bernero,  97  Mo.  App    ^14. 

20.  Randall  v.  New  England  Order  of  Pro- 
tection,  118    Fed.    782. 

21.  Rolla  State  Bank  v.  Borgfeld,  93  Mo 
App.  62.  And  of  facts  depending  on  them, 
such  as  the  terms  of  court  (Lanckton  v 
United  States.  18  App.  D.  C.  348;  Hadley  v. 
Bernero,  97  Mo.  App.  314)  or  that  a  county 
seat  fixed  bv  statute  was  in  the  county — 
State  V.  Buralll   (Nev.)    71  Pac.   532. 

22.  Larson  v.  First  Nat.  Bank  (Neb.)  92 
N.  W.   729. 

23.  Lasher  v.  Llttell,  104  111.  App.  211. 
The  width  of  city  street.s  not  established  by 
charter  will  not  be  judicially  noticed — Coe 
College  V.  Cedar  Rapids  (Iowa)  95  N.  W.  267. 
Ky.  St.  §  2761  provides  that  judicial  notice 
shall  be  taken  of  ordinances — Woolley  v. 
Louisville,   24  Ky.  L.  R.  1357,  71   S.  W.  893 

24.  On  appeal  In  such  prosecution  the  re- 
viewing court  likewise  takes  notice  of  the 
ordinance — Strauss  v.  Village  of  Conneaut, 
23  Ohio  Circ.   R.   320. 

25.  McCurdy  v.  Alaska  &  C  Commercial 
Co.,  102  111.  App.  120  The  existence  of  the 
civil  law  as  the  basis  of  Mexican  jurispru- 
dence will  be  noticed,  but  not  whether  a  par 
ticular  rule  thereof  is  in  force — Banco  De 
Sonora  v.  Bankers'  Mut.  Casualty  Co.  (Iowal 
95  N    W.   232. 

26.  Old  Wayne  Mut.  Life  Ass'n  v.  Flynn 
(Ind.  App.)  68  N.  B.  327;  Ferd  Helm  Brew 
Co.  V.  Gimber  (Kan.)  72  Pac.  859;  Southern 
111.  &  M.  Bridge  Co.  v.  Stone,  174  Mo.  1. 
The  judicial  interpretation  of  laws  of  an- 
other state  will  not  be  noticed — Pacific  Exp 
Co.  V.  Pitman  (Tex.  Civ.  App.)  71  S.  W.  312 
The  statute  providing  for  such  judicial  no 
tice  does  not  extend  to  private  laws — Miller 
v.  Johnston    (Ark.)    72  S.  W.    371. 

27.  Kelly  V.  Churchill  (Ind.  T.)  69  S.  W. 
817;  Sass  v.  Thomas  (Ind.  T.)   69  S.  W.  893. 

28  Common  presumptions  of  this  class 
are  that  of  the  incapacity  of  infants  (see 
Infants)  and  of  a  grant  from  continued  pos- 
.(sf'.'^pion   of  land   (see  Adverse  Possession). 


29.  In  re  Board  of  Education,  173  N.  T. 
321;  Willcox  v.  Trenton  Potteries  Co..  64  N. 
J.  Eq.  173;  Travelers'  Ins.  Co.  v.  Rosch,  23 
Ohio  Circ.   R.   491. 

30.  Continuance  In  force  of  street  railroad 
rule — Paquin  v.  St.  Louis  R.  Co.,  90  Mo  App. 
118.  Of  a  foreign  statute — Seaboard  Air 
Line  R  v.  Phillips,  117  Ga.  98.  Continuance 
of  life — Chicago,  etc..  R.  Co  v.  Young  (Neb.) 
93  N.  W.  922.  Of  domicile — In  re  Russell's 
Estate,  64  N.  J.  Eq.  313.  Of  public  charac- 
ter of  funds  deposited  by  a  public  officer — 
Baker  v.  "Williams  Banking  Co.,  42  Or.  213, 
70  Pac.  711.  Of  insanity  once  adjudicated — 
Eakin  v.  Hawkins.  52  W.  Va.  124.  A  per- 
son absent  for  20  years  will  not  be  presumed 
to  have  continued  unmarried — Johnson  v. 
Johnson.  170  Mo.  34. 

31.  Minch  V.  New  York  R.  Co.,  80  App. 
Div.  (N  Y.)  324;  Katafiasz  v.  Toledo  Consol. 
Elec.  Co.,  24  Ohio  Circ.  R.  127;  Johnson  v 
Levy,  109  La.  1036;  Michigan  Cent.  R.  Co.  v. 
Butler,  23  Ohio  Circ.  R.  459;  Vandervort  v 
Fouse,  52  W.  Va.  214.  The  rule  does  not 
apply  where  the  witness  was  equally  ac- 
cessible to  either  party  (Yula  v.  New  York 
R  Co.,  39  Misc.  (N.  Y.)  59;  Erie  R.  Co  v, 
Kane  (C.  C.  A.)  118  Fed.  223;  Shannon  v 
Castner,  21  Pa.  Super.  Ct.  294)  or  is  be 
yond  the  jurisdiction — Fremont  v  Metropol- 
itan St    R.  Co.,   83  App.  Div.    (N    Y.)    414. 

32.  Thompson  v.  Chappell,  91  Mo  App 
297;  Heller  v.  Beal,  23  Ohio  Circ    R    540 

33.  That  a  deed  In  the  hands  of  grantee 
was  delivered  (Inman  v.  Swearingen  198  111. 
437)  on  the  day  of  Its  date  (Atlantic  City 
V.  New  Auditorium  Pier  Co,  63  N  J  Eq 
644)  and  the  same  presumptions  appiv  to  a 
note — Wells  v.  Hobson,  91  Mo  App.  379, 
That  cohabitation  meretricious  at  its  incep- 
tion so  continued — Henry  v.  Taylor  (S.  D.) 
93  N.  W  641.  That  services  rendered  be- 
tween persons  in  Immediate  family  relations 
are  gratuitous — Sloan  v.  Dale,  90  Mo  .\pp. 
87  That  a  conveyance  to  a  wife  on  consid- 
eration paid  by  the  husband  was  a  gift  from 
him  to  her  and  not  charged  with  a  trust — 
Johnson  v.  Johnson,  96  Md.  144:  Flaniier  v. 
Butler,  131  N.  C.  155.  That  a  railroad  com- 
pany owns  and  operates  an  eng'ne  runnlnff 
on    it?    tracks — Brooks    v.    Missouri    Pac.    R. 


§  IB 


PRESUAIPTIONS  AND  BURDEN  OF  PROOF. 


1139 


tions  dictated  by  public  policy  or  convenience  and  which  affect  in  the  first  instance 
the  burden  of  proof  are  such  presumptions  as  that  olScial  acts  are  regularly  and 
legally  done,^*  that  judicial  proceedings  were  regular  and  within  the  jurisdiction  of 
the  court,^*  that  every  man  is  sane'^  and  solvent,"  that  every  woman  is  chaste,'^ 
that  men  act  in  good  faith  and  with  innocent  motives/'  and  without  culpable  neg- 
ligence.*" 

There  is  no  such  general  presumption  of  survivorship  in  common  disaster." 
It  will  be  presumed  that  the  law  of  a  foreign  country*^  or  of  another  state*'  is 
the  same  as  that  of  the  forum. 


Co.,  98  Mo.  App.  166.  That  the  holder  of  a 
negotiable  Instrument  Is  the  owner  thereof 
— National  Revere  Bank  v  National  Bank 
of  Republic,  172  N.  Y.  102;  Beaman  v.  Ward. 
132  N.  C.  68;  Michigan  Mut  Life  Ins  Co. 
V.  Klatt  (Neb.)  92  N.  W.  325;  Watford  v. 
Windham,  64  S  C.  509.  The  signature  to  a 
note  is  presumed  to  have  been  affixed  be- 
fore delivery  and  on  the  day  of  its  date — 
Wells  v.  Hobson,  91  Mo.  App.  379.  The  au- 
thorities are  in  conflict  as  to  whether  the 
holder  of  a  note  Is  presumed  to  be  a  pur- 
chaser In  good  faith.  That  he  is.  see  Black 
V.  First  Nat.  Bank,  96  Md.  399;  Hahn  v. 
Bradley,  92  Mo.  App.  399.  That  he  is  not, 
where  it  appears  that  the  note  was  pro- 
cured by  fraud  see  McGill  v.  Young  (S.  D.) 
92  N  W.  10G6.  Execution  of  chattel  mort- 
gage is  not  presumptive  evidence  of  title  in 
mortgagor — Syck  v.  Bossingham  (Iowa)  94 
N.  W.  920. 

84.  State  V.  Savage  (Neb.)  91  N.  W.  716; 
Sheafer  v  Mitchell.  109  Tenn.  181;  Watkins 
v.  Havighorst  (Okl.)  74  Pac.  318;  Pine  Tree 
Lumber  Co  v.  F.irgo  (N.  D.)  96  N.  W.  357; 
Brown  v  Helsley  (Neb.)  96  N.  W.  187. 
Where  work  Is  begun  under  a  franchise  It 
will  be  presumed  that  the  requisite  consent 
of  officials  thereto  was  obtained — McWethy 
V  Aurora  Elec.  Light  &  Power  Co.,  202  111. 
218.  Where  a  street  railroad  was  authorized. 
It  will  be  presumed  that  the  requisite  con- 
sent of  property  owners  was  filed — Mercer 
County  Traction  Co.  v.  United  New  Jersey 
R  &  C.  Co..  64  N.  J.  Eq.  588.  It  will  be 
presumed  that  a  patent  was  countersigned 
by  the  recorder  of  the  land  office  though  the 
abstract  does  not  show  It — McLeod  v.  Lloyd 
(Or  )    '1   Pac.   795 

But  the  presumption  in  favor  of  official 
acts  does  not  obtain  where  a  forfeiture  Is 
sought  to  be  established  by  such  acts — Irwin 
f    Mayes   (Tex    Civ.  App.)   73  S.  W.  33. 

35.  Coveney  v  Phiscator  (Mich  )  93  N 
W.  619;  National  Bank  v.  Home  Security  Co.. 
65  Kan.  642.  70  Pac.  646;  Talbot  v.  Roe,  171 
Mo.  421,  Haupt  v.  Simington,  27  Mont.  480. 
71  Pac  672.  Judgment  of  another  state  pre- 
sumed valid — Gottlieb  v.  Alton  Grain  Co., 
87  App  Div.  (N.  Y.)  380.  And  see  article 
on  Courts. 

36.  Dickerson  v.  Northwestern  Mut.  Life 
Ins.  Co.  200  111.  270;  Davis  v.  State  (Fla.)  32 
So  822  And  though  it  appears  that  one 
committed  suicide  It  will  be  presumed  that 
he  was  sane — Royal  Circle  v.  Achterrath  (111.) 
68  N.  E  492  But  after  an  adjudication  of 
Insanity  the  presumption  of  the  continuance 
of  that  state  obtains — Eakin  v.  Hawkins.  52 
W.  Va.  124.  The  operation  of  this  presump- 
tion where  Insanity  Is  alleged  as  a  defense 
to  crime  will  be  treated  In  Indictment  and 
Prosecution. 


ST.  Warren  v.  Roblson,  25  Utah,  205,  70 
Pac.  989;  Lewis  v.  Boardman,  78  App.  DIv. 
(N.   Y.)    394. 

38.  Griffin  v.  State,  109  Tenn.  17;  Puckett 
V.   State   (Ark.)    70  S.   W.   1041. 

39.  Mortimer  v.  McMullen,  102  111.  App. 
593.  Adverse  possession  presumed  to  have 
been  In  good  faith — Baxley  v  Baxley,  117  Ga. 
60.  That  alterations  in  an  instrument  were 
made  before  delivery — Consumers'  Ice  Co.  v. 
Jennings  (Va.)  42  S.  E.  879.  That  a  will  was 
not  procured  by  fraud  or  undue  influence — 
Swearingen  v.  Inman,  198  111.  255;  Crossan 
V.  Crossan,  169  Mo.  631;  In  re  Holman's  Will, 
42  Or.  345,  70  Pac.  908.  Alleged  fraudulent 
conveyances — Culp  v.  Mulvane  (Kan.)  71  Pac. 
273;  Edwards  v.  Anderson  (Tex,  Civ.  App.) 
71  S.  W.  555.  Malice  in  the  ir.=5titution  of 
a  prosecution  is  not  to  be  presumed — Rich- 
ards v.  Jewett  Bros.,  118  Iowa,  629;  Boush  v. 
Fidelity  &  Deposit  Co.  (Va.)  42  S.  E.  877. 
That  representations  by  an  applicant  for 
insurance  were  made  in  good  faith — Alden 
V.  Supreme  Tent,  K.  of  M.,  78  App.  Dlv.  (N. 
Y.)  18.  That  Insured  did  not  commit  suicide 
— Cox  v.  Royal  Tribe,  42  Or.  365,  71  Pac.  73; 
Travelers'  Ins.  Co.  v.  Rosch,  23  Ohio  Circ.  R. 
491;  Western  Travelers'  Ass'n  v.  Holorook 
(Neb.)   91  N.  W.   276. 

40.  Brooks  v.  Louisville  R  Co..  24  Ky.  L. 
R.  1318,  71  S.  W.  507;  Franklin  v.  Missouri 
R.  Co.,  97  Mo.  App.  473;  Klos  v.  Hudson 
River  Ore  &  Iron  Co.,  77  App.  Div.  (N.  Y.) 
566.  And  see  articles  on  Master  and  Servant 
and  Negligence. 

41.  Age,  sex  or  condition  of  the  parties 
creates  none — Young  Women's  Christian 
Home  V.  French,  187  U.  S.  401,  47  Law.  Ed. 
233;  Faul  v.  Hulick,  18  App.  D.  C.  9;  Middeke 
V  Balder,  198  111.  590;  Males  v.  Sovereign 
Camp,  W.  of  W.  (Tex.  Civ.  App  )  70  S.  W. 
108. 

42.  Mittenthal  v.  Mascagnl,  183  Mass  19. 
It  will  be  presumed  that  the  laws  of  every 
country  give  a  right  to  compensation  for 
personal  injuries — Mackey  v.  Mexican  Cent. 
R    Co.,   78  N.  Y.  Supp.  966. 

43.  Barringer  v.  Ryder  (Iowa)  93  N  W. 
56;  Fidelity  Ins.,  etc.,  Co.  v.  Nelson,  30  Wash. 
340,  70  Pac.  961;  Second  Nat.  Bank  v  Smith 
(Wis.)  94  N.  W.  664;  Dlnkins  v.  Crunden- 
Martin  Woodenware  Co.  (Mo.  App.)  73  S.  W. 
246;  Peter  Adams  Paper  Co.  v.  Cassard  (Pa.) 
55  Atl.  949.  A  statute  shown  to  exist  In 
another  state  will  be  presumed  to  have  con- 
tinued In  force — Seaboard  Air  Line  R.  v. 
Phillips,  117  Ga.  98;  Poll  v.  Hicks  (Kan.)  72 
Pac.  847;  Dignan  v.  Nelson  (Utah)  72  Pac. 
936.  In  some  states  this  presumption  does 
not  obtain  as  to  statute  law^  and  the  pre- 
sumption is  that  the  common  law  Is  in  force 
—  Baltimore  R.  Co.  v.  Adams,  159  Ind.  688; 
Price  V.  Clevenger   (Mo.  App.)   74  S.  W.  894; 


1140 


EVIDENCE. 


§   2 


Burden  of.  proof. — Wlierever  a  presumption  of  this  latter  class  arises,  the  bur- 
den is  of  course  on  the  party  against  whom  the  same  operates  to  rebut  it.  K"o  cases 
relating  to  the  general  doctrine  of  burden  of  proof  were  decided  within  the  period 
cohered  by  this  issue  and  the  burden  of  proving  particular  facts  is  not  deemed  of 
sufficient  general  value  to  be  here  treated,  but  will  be  found  under  the  titles  relating 
to  the  particular  subjects  or  issues. 

§  2.  Relevancy  and  materiality.**' — Every  fact  tending  to  strengthen  the  proba- 
bilities on  one  side  or  the  other  is  logically  relevant,"  but  evidence  as  to  a  party's 
character  is  not  relevant  to  render  improbable  acts  inconsistent  therewith.*' 

Where  acts  are  alleged  to  be  negligent,  evidence  that  they  were  or  were  not  in 
accordance  with  the  usual  practice  is  relevant.*'  Though  the  evidence  must  ordi- 
narily be  confined  to  the  transaction  in  issue,  evidence  of  previous  similar  transac- 
tions are  sometimes  deemed  relevant,*^  evidence  of  previous  similar  accidents  from 
the  same  cause  being  the  most  common  illustration,*''  but  only  under  similar  condi- 


Wells  V.  Gress   (Ga.)    45  S.  E.  418;  Rosemand 
V.  Southern  Ry.,  66  S.  C.  91. 

44.  Only  the  most  general  holdings  are 
here  given,  the  relevancy  of  evidence  to  a 
particular  issue  being  considered  as  peculiar 
to  that  subject  matter  and  treated  under  the 
appropriate   title. 

45.  Glassberg  v.  Olson  (Minn.)  94  N.  W. 
5G4;  Chamberlain  v.  Chamberlain  Banking 
House  (Neb.)  93  N.  "W.  1021.  Much  latitude 
is  allowed  where  circumstantial  evidence  is 
resorted  to — Mosby  v.  McKee,  etc.,  Commis- 
sion Co..  91  Mo.  App.  500.  Evidence  that  in 
a  certain  year  a  party  paid  no  taxes  on 
money  at  interest  is  relevant  in  support  of 
his  testimony  that  he  had  no  knowledge  of 
a  transaction  as  part  of  which  a  note  was 
alleged  to  have  been  made  to  him — Shannon 
V.  Castner,  21  Pa.  Super.  Ct.  294.  Evidence 
that  a  certain  laborer  receired  no  more 
wages  than  other  mem»bers  of  the  gang  is  ir- 
relevant on  the  issue  whether  he  was  a  vice 
principal — Fritz  v.  V^'estern  Union  Tel.  Co., 
25  Utah,    263,   71   Pac.   209. 

46.  Evidence  of  character  of  defendant 
and  of  person  aggrieved  in  criminal  prosecu- 
tions is  treated  in  Indictment  and  Prosecu- 
tion and  related  criminal  titles  there  referred 
to;  evidence  of  character  to  support  or  dis- 
credit witness  in  Witnesses.  Good  repute  of 
defendant  in  civil  action  for  homicide,  (Mor- 
gan V.  BarnhiU  [C.  C.  A.]  118  Fed.  24)  of 
a  clerk  sued  for  money  embezzled,  (Adams 
V.  Elseffer  [Mich.]  92  N.  W.  772)  of  one 
alleged  to  have  fraudulently  conveyed  prop- 
erty CEllwood  V.  Walter,  103  111.  App.  219 J 
of  one  alleged  to  have  suppressed  a  will 
(McElroy  v.  Phlnk  [Tex.]  76  S.  W.  753)  of 
bad  character  for  honesty  of  one  sued  for 
wrongful  distress  (Hurst  v.  Benson  [Tex. 
Civ.  App.]  71  S.  W.  417)  and  reputation  of 
deceased  for  sobriety  in  an  action  for  death 
by  wrongful  act — Chesapeake  R.  Co.  v.  Rid- 
dle's Adm'x,  24  Ky.  L.  R.  1687,  72  S.  W.  22 
have  all  been  held  Inadmissible.  But  such 
evidence  is  admissible  where  evidence  assail- 
ing the  party's  character  has  been  admitted 
on  behalf  of  the  other  party  (Louisville,  etc., 
R.  Co.  v.  Steenberger,  24  Ky.  L.  R.  761.  69 
S.  W.  1094)  though  evidence  Incidentally 
aspersing  the  party's  character  will  not  ad- 
mit such  proof — McCowen  v.  Gulf  R.  Co. 
(Tex.  Civ.  App.)   73  S.  W.   46. 

47.     It  may   hf  shown  that    <vork  was  done 
In  the  usual   manner,   to  rehut   n   ch^irp-e  that 


the  method  was  unsafe  (Stauning  v.  Great 
Northern  Ry.  Co.,  SS  Minn.  480;  Hamilton  v. 
Mendota  Coal  &  Min.  Co.  [Iowa]  94  N.  W. 
2S2;  Central  of  Georgia  R.  Co.  v.  Goodson 
[Ga.]  45  S.  B.  680)  and  in  support  of  such 
a  claim  the  contrary  may  be  shown — De- 
vaney  v.  Degnon-McLean  (Tonst.  Co.,  79  App. 
Div.  (N.  T.)  62;  Fritz  v.  Western  Union  Tel. 
Co.,  25  Utah,  263,  71  Pac.  209.  Thus  rules 
governing  the  same  kind  of  work  promul- 
gated by  other  employes  may  be  shown — 
Devoe  v.  New  York  Cent.  R.  Co.,  174  N.  Y.  1. 

But  it  must  appear  that  the  usage  was 
known  to  the  party  seeking  to  avail  him- 
self thereof — Bourbonnais  v.  "VN'est  Boylston 
Mfg.  Co.  (Mass.)  68  N.  E.  232.  That  im- 
proved appliances  are  in  use  by  other  em- 
ployers is  not  competent  unless  it  is  shown 
that  such  improvements  are  practicable  and 
produce  greater  safety — Bryce  v.  Burlington 
R.    Co.    (Iowa)    93   N.   W.    275. 

In  like  manner,  evidence  that  employes 
worked  in  the  usual  way  is  admissible  to 
show  absence  of  contributory  negligence — 
Ham  V.  Lake  Shore  R.  Co.,  23  Ohio  Circ.  R. 
496;  International  R.  Co.  v.  Bearden  (Tex. 
Civ.  App.)  71  S.  W.  558;  Galve.ston  R.  Co. 
V.  Puente  (Tex.  Civ.  App.)  70  S.  W.  362. 
Thus,  manner  of  using  defective  street  by 
others  at  about  the  same  time  is  admissible 
to  rebut  contributory  negligence — City  of 
Charlottesville  v.  Stratton's  Adm'r  (Va.)  45 
S.   E.   737. 

48.  Salary  of  plaintiff's  predecessor  ad- 
missible on  quantum  meruit  for  services — 
Meislahn  v.  Irving  Nat.  Bank,  172  N.  Y.  631. 
Other  forgeries  (Kingsbury  v.  Waco  State 
Bank  [Tex.  Civ.  App.]  70  S.  W.  551)  or  other 
acts  of  adultery  (Goldie  v.  Goldie,  39  Misc. 
[N.  Y.]  389)  than  those  forming  the  subject 
of  the  action  are  not  admissible.  Evidence 
of  similar  misrepresentations  to  other  per- 
sons similarly  situated  with  reference  to  the 
same  transaction  is  admissible — Barbar  v. 
Martin    (Neb.)    93   N.   W.   722. 

49.  City  of  Kingfisher  v.  Altlzer  (Okl.)  74 
Pac.  107;  Smith  v.  Seattle  (V\'ash.)  74  Pac. 
674  This  matter  will  be  more  specifically 
treated  in  the  forthcoming  article  on  Negli- 
gence. In  action  for  injuries  caused  by 
slipping  of  belt,  evidence  that  the  belt  had 
slipped  on  previous  occasions  is  admissible 
(Houston  Biscuit  Co.  v.  Dial,  135  Ala.  168) 
as  is  evidence  that  other  persons  had  been 
Inlnrpd    tf^    the    same   cogwheels    (Dorsett    v. 


§2 


RELEVANCY  AND  MATERIALITY. 


1141 


tions.'^"  Evidence  of  conditions  after  the  transaction  in  issue  is  not  relevant  un- 
less it  appears  that  they  have  not  ehanged,^^  and  evidence  of  subsequent  precautions 
to  prevent  recurrence  of  injury  is  inadraissible."^- 

On  an  issue  as  to  the  value  of  land,  evidence  as  to  the  price  paid  for  similar 
property  in  the  vicinity  is  admissible/^  but  no  other  evidence  of  the  value  of  adjoin- 
ing lands  than  actual  sales  is  within  this  rule.^*  The  price  paid  by  the  owner  of 
land  is  admissible  as  to  its  present  value  unless  conditions  have  changed/"  but  not 
offers  received  by  the  owner.''®  Where  detention  from  place  of  employment  is  al- 
leged, the  earnings  of  others  in  similar  employment  there  is  admissible.'^ 

Evidence  explanatory  of  facts  in  evidence  or  tending  to  rebut  inference  there- 
from is  relevant,'*  and  where  the  admissions  or  declarations  of  a  party  are  intro- 
duced, he  is  entitled  to  explain  the  same,'*  and  the  entire  conversation  or  document 
in  which  the  admission  is  made  is  admissible.®** 


Clement-Ross  Mfg.  Co.,  131  N.  C.  254)  evi- 
dence that  other  cattle  were  made  sick  by 
feed  for  negligent  sale  of  which  action  is 
brought — Houston  Cotton  Oil  Co.  v.  Tram- 
mell  (Tex.  Civ.  App.)  72  S.  W.  244.  On  issue 
whether  obstruction  was  calculated  to  fright- 
en horses,  evidence  that  other  horses  were 
frightened  thereby  is  admissible — Gait  v. 
Woliver.  103  111.  App.  71;  Nye  v.  Dibley,  88 
Minn.  465.  Evidence  of  other  flres  started 
by  a  certain  engine  at  about  the  time  of  that 
in  question  is  admissible — Galveston,  etc., 
R.  Co.  V.  Chlttim  (Tex.  Civ.  App.)  71  S.  W. 
294.  But  in  Missouri  and  California  it  is  oth- 
erwise held,  evidence  of  previous  injuries 
by  same  appliance  (Edwards  v.  Barber  As- 
phalt Co.,  92  Mo.  App.  221;  Roche  v.  Llewel- 
lyn Ironworks  Co.  [Cal.]  74  Pac.  147)  or  by 
same  defect  in  sidewalk  (Smart  v.  Kansas 
City,  91  Mo.  App.  586)   being  excluded. 

Evidence  of  contributory  negligence  of 
employe  on  other  occasions  Is  Inadmissible — 
International  R.  Co.  v.  Ives  (Tex.  Civ.  App.) 
71  S.  W.  772;  Aiken  v.  Holyoke  St.  R.  Co. 
(Mass.)   68  N.  E.  238. 

50.  Florida  Cent.  R.  Co.  v.  Mooney  (Fla.) 
S3  So.  1010.  Derailment  of  another  car  on  a 
different  track  (Central  of  Georgia  R.  Co. 
V.  Duffey,  116  Ga.  346)  flooding  of  other 
cellars  at  different  times  and  from  different 
causes  (Louisville  Water  Co.  v.  Weis,  25  Ky. 
L,  R.  808,  76  S.  W.  356)  have  been  held  ir- 
relevant. Evidence  that  no  overflow  result- 
ed from  maintenance  of  previous  dam  is 
Irrelevant  unless  it  is  shown  to  have  been 
similar  In  height  and  construction  to  that 
complained  of  (Crossen  v.  Grandy,  42  Or. 
282,  70  Pac.  906)  and  proof  of  satisfactory 
working  of  appliances  similar  to  that  claimed 
to  be  defective  is  Irrelevant  unless  condi- 
tions are  shown  to  be  similar — Jewell  Filter 
Co.    v.    Kirk.    200    111.    382. 

51.  Chicago  v.  Early,  104  111.  App.  398. 
But  conditions  immediately  afterward  may 
be  shown— Slack  v.  Harris,  200  111.  96.  Fact 
that  turn  table  was  unlocked  after  an  acci- 
dent but  on  the  same  day  held  admissible — 
Chicago,  etc.,  R.  Co.  v.  Krayenbuhl  (Neb.) 
91   N.   W.    880. 

52.  By  some  courts  this  class  of  evidence 
Is  deemed  irrelevant;  by  others  it  is  exclud- 
ed on  the  theory  that  public  policy  forbids 
treating  such  precautions  as  an  implied  ad- 
mission of  negligence — Georgia  Southern  & 
F  R.  Co.  V.  Cartl'^'lsre.  116  Ga.  164;  McGarr 
V*  National  &  P.  Worsted  Mills,  24  R.  I.  447; 
Ellas  V.  Lancaster  City,  203  Pa.   638. 


53.  Loloff  V.  Sterling  (Colo.)  71  Pac.  1113; 
Board  of  Levee  Com'rs  v.  Nelms  (Miss.)  34 
So.  149;  Dady  v.  Condit,  104  111.  App.  507;  St. 
Louis  S.  W.  R.  Co.  V.  Hughes  (Tex.  Civ.  App.) 
73  S.  W.  976;  Beldlng  v.  Archer,  131  N.  C. 
287;  Houston  v.  Western  Washington  R.  Co., 
204  Pa.  321;  Faust  v.  Hosford  (Iowa)  93  N. 
W.  58.  But  this  class  of  evidence  is  ex- 
cluded In  New  York — Robinson  v.  New  York 
El.  R.  Co.,  175  N.  Y.  219;  Rosenblum  v.  Riley, 
84  N.  Y.  Supp.  884.  It  has  been  held  that 
sales  of  vacant  land  were  relevant  as  to  the 
value  of  improved  land — O'Malley  v.  Com- 
monwealth, 182  Mass.  196.  But  see  contra. 
Fox  V.  Bobbins  (Tex.  Civ.  App.)  70  S.  W. 
597.  Yield  of  adjoining  lands  may  be  shown 
on  Issue  of  damage  by  destruction  of  crop — 
Condon  v.  Des  Moines  Mut.  Hail  Ass'n  (Iowa) 
94  N.  W.  477.  Prices  paid  to  others  during 
the  season  are  relevant  as  to  market  price — 
Roblchaux  v.  Segura  Sugar  Co.  (La.)  34  So. 
744.  Admissibility  of  evidence  as  to  land 
values  will  be  found  discussed  with  consid- 
erable fullness  in  the  article  on  Eminent  Do- 
main. 

54.  Opinions  as  to  value — Bullock  v.  Lake 
Drummond  Canal  Co.,  132  N.  C.  179;  Sirk  v. 
Emery  (Mass.)  67  N.  E.  668.  Price  at  which 
adjacent  lands  are  held  by  owner — Eastern 
Tex.  R.  Co.  V.  Scurlock  (Tex.  Civ.  App.)  76 
S.  W.  366. 

55.  Wells,  Fargo  Exp.  Co.  v.  Williams 
(Tex.  Civ.  App.)  71  S.  W.  314.  But  not 
where  the  purchase  was  in  connection  with 
other  lands  for  a  lump  sum;  or  as  part  set- 
tlement for  an  existing  claim  against  an 
insolvent — Lanquist  v.  Chicago,  200  111.  69. 
Or  was  made  several  years  before  the  time 
of  Inquiry — Id.;  McNicol  v.  Collins,  30  Wash. 
318,  70  Pac.  753.  The  fact  that  property 
was  sold  to  a  public  board  does  not  show 
that  it  was  a  forced  sale  so  as  to  render  the 
price  Inadmissible — O'Malley  v.  Common- 
wealth, 182  Mass.  196. 

.56.  V\''alker  v.  Farrell,  84  N.  Y.  Supp.  182; 
Stewart  v.  James  (Neb.)  95  N.  W.  778;  Wells, 
Fargo  Exp.  Co.  v.  Williams  (Tex.  Civ.  App.) 
71   S.   W.    314. 

57.  Johnson  v.  San  Juan  Fish  Co.,  31 
Wash.   238.   71   Pac.   787. 

58.  T\''here  it  appears  that  Injured  person 
did  not  have  medical  attendance  he  may 
show  that  he  could  not  afford  it — Muller  v. 
Hale.    138   Cal.    163.    71    Pac.    81. 

A  witness  may  explain  away  discrediting 
evidence.     See  Witnesses. 

59.  Coldren    v.    Le    Gore,    118    Iowa,    212. 


1142 


EVIDENCE. 


§   -^ 


§  3.  Competency  or  "kind  of  evidence  in  general.^'^ — Conversations  otherwise 
admissible  are  not  to  be  excluded  because  had  over  a  telephone.*'-  Merely  negative 
evidence  unless  of  a  conclusive  nature  is  not  competent.®^  Though  evidence  be  in- 
competent, it  is  admissible  to  rebut  similar  incompetent  evidence  introduced  by  the 
adverse  party.®* 

§  4.  Best  and  secondary  evidence. — The  rule  in  its  most  general  form  is  that 
evidence  must  be  the  best  of  which  the  nature  of  the  case  admits,®''  its  most  common 
application  being  the  exclusion  of  oral  evidence  to  prove  the  contents  of  a  writing,^® 
and  a  fortiori  of  specialties,®^  books  of  account,®^  and  judicial/''  officiaV°  or  corpo- 


Mistake  In  a  writing — Ritchey  v.  Seeley 
(Neta.)  93  N.  W.  977.  Proof  of  changes  in 
master's  report  to  limit  admissions  implied 
from  consent  to  entry  of  order  thereon — In 
re  Duncan,  64  S.  C.  461.  Where  an  expert 
has  testified  to  construction  of  certain  rules 
other  rules  inconsistent  with  his  opinion 
are  admissible  though  not  otherwise  rele- 
vant— Missouri,  etc.,  R.  Co.  v.  Owens  (Tex. 
Civ.  App.)    75  S.  W.   579. 

60.  Elizabeth  City  Cotton  Mills  v.  Loeb 
(C.  C.  A.)  119  Fed.  154;  Pittsburgh,  etc.,  R. 
Co.  V.  Story,  104  111.  App.  132;  Hewlett  v. 
Hyden  (Ind.  T.)  69  S.  W.  839.  An  admis- 
sion in  an  answer  may  be  introduced  with- 
out Introducing  accompanying  denials  of  oth- 
er parts  of  the  cause  of  action — Lewis  v. 
Norfolk  R.  Co.,  132  N.  C.  382.  Where  a  let- 
ter has  been  Introduced  for  an  admission 
therein,  the  other  party  may  Introduce  all 
the  correspondence  on  that  subject — Lewis 
Pub.  Co.  V.  Lenz,  86  App.  Dlv.   (N.  T.)    451. 

61.  Includes  only  the  few  miscellaneous 
rulings  as  to  competency  of  evidence  not 
covered  by  the  general  rules  of  competency 
represented  by  the  following  sections. 

62.  Gait  V.  Wollver,  103  111.  App.  71.  But 
there  must  be  proof  over  the  identity  of  the 
persons  speaking — Klmbark  v.  Illinois  Car 
&  Equipment  Co.,  103  111.  App.  632.  Conver- 
sation by  telephone  admissible  where  adverse 
party  admits  that  there  was  a  conversation. 
The  court  intimates  a  doubt  as  to  whether 
preliminary  evidence,  as  of  recognition  of 
voice,  is  necessary  in  any  event — Lincoln  Mill 
Co.   v.   Wissler    (Neb.)    95   N.  "W.   857. 

63.  That  no  effort  was  made  to  appre- 
hend any  person  for  murder  is  incompetent 
on  an  issue  as  to  suicide — Treat  v.  Mer- 
chants Life  Ass'n.  198  111.  431.  Evidence  of 
an  employe  that  he  never  saw  the  machin- 
ery inspected  is  inadmissible — Duntley  v.  In- 
man.   Poulson  &  Co.,   42  Or.   334,   70   Pac.   529. 

6-t.  Shannon  v.  Castner,  21  Pa.  Super.  Ct. 
294:  Yank  v.  Bordeaux  (Mont.)  74  Pac.  77; 
McNicol  V.  Collins,  30  Wash.  318,  70  Pac.  753; 
San  Antonio,  etc.,  R.  Co.  v.  Griffith  (Tex. 
Civ.  App.)  70  S.  W.  438.  Expert  testimony — 
Hutter  V.  DeQ.  Bottle  Stopper  Co..  119  Fed. 
190.  Character  evidence — Louisville  &  N.  R. 
Co.  V.  Steenberger,  24  Ky.  L.  R.  761.  69  S. 
W.  1094.  But  only  where  the  attack  on 
character  Is  direct — McCowen  v.  Gulf  R.  Co. 
(Tex.  Civ.  App.)  73  S.  W.  46.  Though  a  con- 
versation Is  hearsay,  if  evidence  as  to  the 
same  is  introduced  by  one  party  the  other 
may  prove  his  version  of  it — Johnson  v.  Doon 
(Mich.)  91  N.  W.  742;  Droege  v.  Baxter,  77 
App.  Dlv.  (N.  Y.)  78.  Evidence  of  the  arrest 
of  defendant's  employe  for  the  transaction 
In  issue  authorizes  evidence  that  he  was 
discharged  after  arraignment — James  v.  Met- 
ropolitan   S!t.    R.    Co..    ?n    App.    Div.     CS.    Y.) 


364.  Evidence  that  plaintiff  made  no  com- 
plaint of  Injury  authorizes  proof  of  com- 
plaints by  him — Missouri,  etc.,  R  Co.  v. 
Hawk  (Tex.  Civ.  App.)  69  S.  W.  1037.  But 
in  an  action  for  damage  caused  to  a  build- 
ing by  an  explosion,  evidence  that  the  ex- 
plosion did  not  damage  one  adjoining  build- 
ing does  not  authorize  evidence  that  It  did 
damage  another — Fitzslmmons  &  Connell  Co 
V.  Braun,  199  111.  390.  V^^here  defendant  in 
a  personal  Injury  case  shows  the  appliances 
used  elsewhere  In  his  mine  he  cannot  object 
to  evidence  that  they  are  more  secure  than 
that  complained  of — Brazil  Block  Coal  Co. 
v.  Gibson  (Ind.)  66  N.  E.  SS2.  Where  a  par- 
ty shows  the  manner  in  which  an  account  is 
kept  the  other  party  may  prove  at  whose 
request  It  was  done — Hill  Bros.  v.  Bank  of 
Seneca  (Mo.  App.)   73  S.  W.  307. 

65.  The  Ulalia,   37  Ct.  CI.   466. 

66.  Mahaney  v.  Carr.  175  N.  Y.  454.  There 
is  an  exception  in  case  of  written  notices, 
that  served  and  that  retained  being  consid- 
ered duplicate  originals — Eisenhart  v.  Slay- 
maker,  14  Serg.  &  R.  (Pa.)  153  (leading 
case);  Florida  Cent.,  etc.,  R.  Co.  v.  Seymour 
(Fla.)    33  So.   424. 

67.  Graham  v.  Warren  (Miss.)  33  So.  71 
Title  to  land  (Arnold  v.  Cofer.  135  Ala.  364; 
Wright  V.  Roberts.  116  Ga.  194)  or  the  con- 
veyance thereof  (Houck  v.  Patty  [Mo.  App.] 
73  S.  W.  389)  cannot  be  shown  by  parol. 

G8.  Wilson  v.  Morse,  117  Iowa,  581 ;  Rog- 
ers V.   O'Barr   (Tex.   Civ.   App.)    76   S.  W.    593. 

69.  Judgment  cannot  be  proved  by  parol 
— Rosenberg  v.  Goldstein,  38  Misc.  (N.  Y.) 
753.  Record  Is  not  the  best  evidence  of 
services  rendered  by  an  attorney  In  the 
action — Cahill  v.  Balrd  (Cal.)  70  Pac.  1061. 
The  docket  entry  is  the  best  evidence  of  the 
filing  of  a  claim  against  a  decedent's  estate 
^Kornegay  v.  Mayer,  135  Ala.  141.  The 
decree  is  the  best  evidence  of  the  condemna- 
tion of  a  vessel  in  admiralty — The  Ulalia.  37 
Ct.  CI.  466.  That  a  person  participated  in 
a  certain  action  may  be  sliown  by  parol — 
Daly  V.  Everett  Pulp  &  Paper  Co.,  31  Wash. 
252.  71  Pac.  1014.  Under  Code  Civ.  Proc.  § 
1922  the  legal  existence  of  a  justice  court 
in  another  state  may  be  proved  by  the  testi- 
mony of  the  justice — Banister  v.  Campbell. 
138  Cal.  455,  71  Pac.  504.  Original  papers 
filed  in  court  are  not  secondary  to  certified 
copies — Bradley  Timber  Co.  v.  White  (C  C. 
A.)  121  Fed.  779.  Docket  entries  of  a  referee 
in  bankruptcy  are  the  best  evidence  of  mat- 
ters therein  stated — Davis  v.  Ives.  75  Conn. 
611. 

70.  Municipal  authorization  of  the  dig- 
ging of  a  ditch  cannot  be  proved  by  parol — 
Town  of  Jackson  v.  Ellis,  116  Ga.  719.  Con- 
tents of  a  petition  on  file  with  the  town 
clerk    cannot    be   proved   by   parol — Seigel    v. 


§4 


BEST  AND  SECONDARY  EVIDENCE. 


1143 


rate  records/*  and  private  copies  stand  on  the  same  footing  as  oral  evidence."  As 
to  the  existence  of  a  writing,  however,  the  general  rule  seems  to  be  that  parol  evi- 
dence is  admissible.^'  Where  the  contents  of  a  writing  is  only  collaterally  in  issue, 
the  rule  does  not  apply.''* 

The  rule  requires,  however,  only  the  best  evidence  available,  and  where 
the  primary  evidence  is  lost  or  destroyed'*  beyond  the  jurisdiction,'*  or  in  the 
hands  of  the  adverse  party,''^  secondary  evidence  is  admissible;  but  there  must 
be  preliminary  proof  of  the  destruction  of  the  writing,'®  or,  if  it  is  alleged  to  be 
lost  that  after  diligent  search  it  cannot  be  found,  the  sufficiency  of  such  proof  be- 
ing generally  in  the  discretion  of  the  court." 


Town  of  Liberty  (Wis.)  95  N.  W.  402.  The 
contents  of  the  tax  rolls  cannot  be  proved 
by  parol — Montpelier  Sav.  Bank  &  Trust  Co. 
V.  School  District.  115  Wis.  622.  But  a  wit- 
ness may  testify  that  an  examination  of  the 
tax  records  did  not  show  the  filing  of  a  cer- 
tain return — Vizard  v.  Moody,  117  Ga.  67. 
An  official  plat  is  not  better  evidence  than 
a  plat  made  by  a  witness  who  has  surveyed 
the  land — City  of  Chicago  v.  Le  Moyne  (C. 
C.  A.)  119  Fed.  662.  The  fact  that  an  exam- 
ination of  certain  accounts  has  been  made 
by  the  public  examiner  may  be  moved  by 
parol — Culver   v.    Caldwell    (Ala.)    34   So.    13. 

71.  Corcoran  v.  Sonora  Mln.  &  Mill.  Co. 
(Idaho)  71  Pac.  127.  Corporate  resolution 
fixing  salary  of  officer  may  be  shown  by 
parol — Selley  v.  American  Lubricator  Co. 
(Iowa)  93  N.  W.  590.  As  to  whether  entry 
of  corporate  proceedings  in  the  minute  book 
excludes  oral  evidence  of  such  proceedings 
the  authorities  are  in  conflict.  The  better 
rule  on  reason  would  seem  to  be  that  It  does 
not — Blanton  v.  Kentucky  Distilleries  & 
Warehouse  Co.,  120  Fed.  318.  But  the  weight 
of  authority  seems  to  be  that  It  does — Cen- 
tral Elec.  Co.  v.  Spragrue  Elec.  Co.  (C.  C.  A.) 
120  Fed.   925. 

72.  Peycke  v.  Shlnn  (Neb.)  94  N.  W.  135. 
Copy  of  report  by  police  officer — Crane  v. 
Bennett.  77  App.  Dlv.  (N.  T.)  102.  Copy  of 
book  entries — Smith  v.  Castle,  81  App.  Dlv. 
(N.  T.)  638.  Letter  press  copy  of  letter — 
Heller  v.  Heine,  38  Mlsc  (N.  Y.)  816;  Haas  v. 
Chubb  (Kan.)   74  Pac.  230. 

78.  A  witness  may  testify  that  certain 
proceeding  before  an  exchange  committee 
was  Instituted  by  written  charges — Collins 
V.  McGulre,  76  App.  Dlv.  (N.  T.)  443.  Or 
that  he  bought  a  railroad  ticket  between 
certain  stations — Oliver  v.  Columbia  R  Co.. 
65  S.   C.   1. 

74.  Beldlng  v.  Archer.  131  N.  C.  287;  Lips- 
comb V.  Citizens'  Bank  (Kan.)  71  Pac.  583. 
Where  the  authority  of  an  agent  to  make 
a  contract  Is  denied  In  a  suit  thereon  such 
authority  is  not  collaterally  in  Issue  but  the 
best  evidence  thereof  must  be  produced — 
Continental  Fire  Ass'n  v.  Bearden  (Tex. 
Civ.  App.)  69  S.  W.  982.  The  amount  paid 
by  a  garnishee  may  be  shown  by  parol  In  a 
collateral  proceeding. — Curtis  v.  Parker  & 
Co.,  136  Ala.  217. 

75.  Larson  v.  Cox  (Neb.)  93  N.  W.  1011; 
Conkllng  v.  Nicholas  (Mich.)  95  N.  W.  745; 
Hodge  V.  Palms  (C.  C.  A.)  117  Fed.  396; 
The  Ulalia,  37  Ct.  CI.  466;  Brookshler  v. 
ChilUcothe  Town  Mut.  Fire  Ins.  Co.,  91  Mo. 
App.  599;  City  of  South  Omaha  v.  Wrzen- 
slnski  (Neb.)  92  N.  W.  1045;  Smith  v.  Rid- 
lay  (Tex.  Civ.  App.)  70  S.  W.  235;  Blanton 
v     Kentucky   Distilleries    &   Warehouse    Co., 


120  Fed.  318;  State  ▼.  Conser,  24  Ohio  Clrc. 
R.  270;  Lochrldge  v.  Corbett  (Tex.  Civ.  App.) 
73  S.  W.  96;  Thlstlewaite  v.  Pierce,  30  Ind. 
App.  642.  The  rule  admitting  secondary  evi- 
dence applies  to  proof  of  Judgment,  execu- 
tion, etc.,  under  Comp.  Laws,  S  10,203.  re- 
lating to  proceedings  In  aid  of  execution — 
Crane  v.  Waldron  (Mich.)  94  N.  W.  593. 

76.  Where  the  recipient  of  a  letter  was 
a  non-resident  and  died  before  the  trial  sec- 
ondary evidence  of  the  contents  of  the  letter 
may  be  received — Hirsch  v.  C.  W.  Leather- 
bee  Lumber  Co.  (N.  J.  Law)  55  Atl.  645.  But 
see  Central  Elec.  Co.  v.  Sprague  Elec.  Co.  (C. 
C.  A.)   120  Fed.  925. 

77.  Gulf,  etc.,  R.  Co.  v.  Harris  (Tex.  Civ. 
App.)  72  S.  W.  71;  Nunn  v.  Jordan,  31  Wash. 
506,  72  Pac.  124.  Copies  of  papers  in  the 
hands  of  the  adverse  party,  and  forming 
part  of  Its  private  records  which  it  cannot 
be  compelled  to  surrender,  are  admissible — 
Speiser  v.  Phoenix  Mut.  Life  Ins.  Co.  (Wis.) 
97  N.  W.  207. 

78.  Zollman  v.  Tarr,  93  Mo.  App.  234. 
Testimony  by  the  recipient  of  letters  that 
he  has  destroyed  them  is  sufficient — June  v. 
Labadle  (Mich.)  92  N.  W.  937.  Proof  of  the 
loss  of  a  railroad  service  telegram  Is  suf- 
ficient to  admit  secondary  evidence  where 
there  Is  no  evidence  of  a  practice  of  making 
office  duplicates — Southern  R.  Co.  v.  Howell 
(Ala.)  34  So.  6. 

79.  Evidence  of  diligent  search  necessary 
— Samuelson  v.  Gale  Mfg.  Co.  (Neb.)  95  N. 
W.  809.  Preliminary  evidence  of  loss  Is  In 
the  discretion  of  the  trial  Judge — Cox  v.  Mc- 
Donald (Ga.)  45  S.  E.  401.  Circumstantial 
evidence  of  loss  Is  sufficient — Bright  v.  .'  1- 
lan,  203  Pa.  386.  Where  the  loss  of  a  paper 
belonging  to  a  corporation  Is  otiierwise 
proved  the  proof  is  not  Invalidated  by  testi- 
mony of  the  president  that  he  thinks  he 
gave  It  to  one  person  who  denies  receiving 
it  and  that  he  has  seen  It  in  the  hands  of 
another  whose  whereabouts  Is  unknown — 
Dupee  v.  Chicago  Horse  Shoe  Co.  (C.  C.  A.) 
117  Fed.  40.  Proof  by  the  grantee  that  he 
could  not  find  certain  deeds  Is  not  Invali- 
dated by  a  statement  that  he  may  have 
given  them  to  a  certain  person,  where  that 
person  is  absent  and  his  whereabouts  is 
unknown — Denny  v.  Broadway  Nat.  Bank 
(Ga.)  44  S.  E.  982.  Proof  that  the  Justice 
who  had  certain  records  is  dead  and  that 
they  are  not  in  the  clerk's  office,  without 
showing  Inquiry  of  the  Justice's  family,  is 
insufficient — Smith  v.  Garris,  131  N.  C.  34. 
Testimony  that  witness  did  not  think  he 
had  a  deed  and  had  made  some  search  but 
does  not  remember  what  is  insufficient — Or- 
chard V.  Collier,  171  Mo.  390.  Testimony 
that  witness  had  laid  certain  papers  on  hi? 


1144 


EVIDENCE. 


Where  the  writing  is  in  the  hands  of  the  adverse  party,  notice  must  be  given  to 
produce  the  same  at  the  trial,  to  admit  secondary  evidence  on  his  failure  to  do 
so.***  Where  a  proper  foundation  is  laid  for  secondary  evidence,  letter  press^^  or 
other  copies^^  are  admissible,  as  is  oral  evidence.*' 

§  5.  Parol  evidence  to  explain  or  vary  writing. — ^A  rule  which  the  later  au- 
thorities deem  one  of  substantive  law,"  but  which  is  ordinarily  considered  as  part 
of  the  law  of  evidence,  is  that  where  a  contract  is  reduced  to  writing  it  will  be  pre- 
sumed that  the  parties  intended  thereby  to  place  their  agreement  beyond  the  un- 
certainties of  oral  testimony  and  accordingly  if  the  written  terms  are  unambiguous, 
oral  evidence  is  inadmissible  to  vary,  modify,  or  contradict  them;*^  and  a  fortiori 


desk  and  that  a  few  days  later  they  were 
not  on  the  desk  and  that  he  had  searched 
for  them  and  could  not  find  them  is  suffi- 
cient— Stuart  V.  Mitchum,   135  Ala.  546. 

Superior  Court  Rule  42  allowing  copies  of 
instruments  "between  the  parties  litigant" 
to  be  admitted  on  an  affidavit  of  loss  of  the 
original  does  not  apply  to  instruments  be- 
tween third  persons — Cox  v.  McDonald  (Ga.) 
45  S.  E.  401.  Under  a  statute  making  an 
affidavit  that  the  party  is  unable  to  "pro- 
cure" the  original  prima  facie  evidence  of 
loss,  an  affidavit  that  he  cannot  "produce" 
It  is  sufficient — Williamson  v.  Work  (Tex. 
Civ.   App.)    77   S.  W.    266. 

Order  of  Proof.  It  is  in  discretion  of  the 
court  to  admit  secondary  evidence  on  a 
promise  to  supply  later  the  necessary  found- 
ation— Haller  v.  Gibson,  30  Ind.  App.  10.  And 
see  article  on  Trial. 

SO.  Hess-Mott  Co.  v.  Brown,  84  N.  T. 
Supp.  168;  Union  Surety  &  Guaranty  Co.  v. 
Tenney,  200  111.  349.  A  mere  statement  of 
counsel  that  notice  has  been  given  is  insuf- 
ficient— Landt  v.  McCullough.  103  111.  App. 
668.  A  notice  given  during  the  trial  to  pro- 
duce a  paper  at  the  office  of  defendant  in 
another  town  Is  not  sufficient — Continental 
Fire  Ass'n  v.  Bearden  (Tex.  Civ.  App.)  69  S. 
W.  982.  Where  there  is  evidence  that  the 
document  is  lost  (Cleveland,  etc.,  R.  Co.  v. 
Patton,  104  111.  App.  550)  or  destroyed  (Bick- 
ley  V.  Bickley.  136  Ala.  548)  notice  to  pro- 
duce Is  unnecessary. 

81.  Union  Surety  &  Guaranty  Co.  v.  Ten- 
ney, 200  111.  349. 

82.  Hagey  v.  Schroeder,  30  Ind.  App.  151; 
City  of  South  Omaha  v.  Wrzensinski  (Neb.) 
92  S.  W.  1045;  Orchard  v.  Collier.  171  Mo. 
390;  Peycke  v.  Shinn   (Neb.)   94  N.  W.  135. 

83.  Members  of  the  family  who  have  lis- 
tened to  the  reading  and  discussion  of  let- 
ters may  testify  to  their  contents  the  letters 
being  lost — Brier  v.  Davis  (Iowa)  96  N.  W. 
983. 

84.  Pitcairn  v.  Philip  Hiss  Co.  (C.  C.  A.) 
125  Fed.  110. 

85.  Foote  &  Davies  Co.  v.  Malony,  115  Ga. 
985;  Hart  v.  Hart  (Wis.)  94  N.  W.  890;  Nor- 
folk Beet  Sugar  Co.  v.  Berger  (Neb.)  95  N. 
W.  336;  Sims  v.  Greenfield  R.  Co.  (Mo.  App.) 
74  S.  W.  421;  Rose  v.  Lanyon  Zinc  Co.  (Kan.) 
74  Pac.  625;  Oil  Creek  Gold  Min.  Co.  v.  Fair- 
banks, Morse  &  Co.  (Colo.  App.)  74  Pac.  543; 
Lawder  &  Sons  Co.  v.  Albert  Mackie  Grocer 
Co.  (Md.)  54  Atl.  634;  Bullard  v.  Brewer  (Ga.) 
45  S.  E.  711;  Arthur  v.  Baron  De  Hirsch 
Fund  (C.  C.  A.)  121  Fed.  791;  J.  I.  Case 
Threshing  Mach.  Co.  v.  Hall  (Tex.  Civ.  App.) 
73  S.  W.  835;  Douglass  v.  Campbell,  24  Ohio 
Circ.  R.  241;  Finck  v.  Bauer,  40  Misc.  (N.  Y.) 
^18;    Drumm-Flato    Commission    Co.    v.    Bar- 


nard (Kan.)  72  Pac.  257;  Heard  v.  Tappan,  116 
Ga.  930;  Sexton  v.  Barrie,  102  111.  App.  586; 
Consumer's  Ice  Co.  v.  Jennings  (Va.)  42  S. 
E.  879;  Mefford  v.  Sell  (Neb.)  92  N.  W.  148; 
Rolfs  v.  Atchison  R.  Co.  (Kan.)  71  Pac.  526; 
Johnson  v.  Zweigart,  24  Ky.  L.  R.  1323,  71 
S.  W.  445;  Wear  Bros.  v.  Schmelzer.  92  Mo. 
App.  314;  New  Idea  Pattern  Co.  v.  Whelan. 
75  Conn.  455;  National  Computing  Scale  Co. 
V.  Eaves,  116  Ga.  511;  Wilson  v.  Hinnant. 
117  Ga.  46;  Grand  Lodge,  A.  O.  U.  W..  v. 
Bunkers,  23  Ohio  Circ.  R.  487;  Walther  v. 
Stampfli,  91  Mo.  App.  398;  Dady  v.  O'Rourke, 
172  N.  Y.  447. 

Bills  and  Notes — Brewer  v.  Grogan,  116 
Ga.  60.  Evidence  of  contemporaneous  agree- 
ment depriving  note  of  negotiability  not 
admissible — Mallory  v.  Fitzgerald's  Estate 
(Neb.)  95  N.  W.  601.  Maker  of  a  promis- 
sory note  may  show  an  agreement  for  pay- 
ment in  labor — Ramsey  v.  Cajishaw  (Ark.) 
75  S.  W.  479. 

Deeds,  Leases  and  Patents  to  Land.  Not 
admissible  to  vary  unambiguous  deed  as  to 
property  (Uihlein  v.  Matthevv's,  172  N.  Y. 
154;  Van  Husan  v.  Omaha  Bridge  &  T.  R. 
Co.,  118  Iowa,  366;  Riehlman  v.  Field.  81 
App.  Dlv.  [N.  Y.]  526)  or  estate  conveyed — 
Cauble  v.  Worsham  (Tex.)  70  S.  W.  737; 
Mays  v.  Shields  (Ga.)  45  S.  E.  68.  It  may 
be  shown  by  parol  that  a  mortgage  was 
given  not  only  for  existing  debts  but  as  a 
continuing  security — Lippincott  v.  Lawrie 
(Wis.)  97  N.  W.  179.  Term  of  tenancy  as 
specifically  stated  In  lease  cannot  be  varied 
by  parol — Equitable  Life  Assur.  Soc.  v. 
Schum,  40  Misc.  (N.  Y.)  657.  Unambiguou.s 
field  notes  referred  to  in  a  patent  cannot  be 
varied — Giddings  v.  Winfree  (Tex.  Civ.  App.) 
73  S.  W.   1066. 

Bin  of  Lading — De  Sola  v.  Pomares,  119 
Fed.  373.  Endorsement  of  a  bill  of  lading 
for  transfer  does  not  imply  a  contract  in 
law,  it  not  being  a  negotiable  in.strument. 
and  accordingly  the  real  nature  of  the  con- 
tract may  be  shown  by  parol — Walker  v. 
First  Nat.  Bank  (Or.)  72  Pac.  635.  Special 
contract  as  to  time  of  delivery  cannot  be 
shown  to  vary  a  bill  of  lading — Sloman  v. 
National  Exp.  Co.  (Mich.)  95  N.  W.  999. 
Where  a  bill  of  lading  did  not  specify  the 
route  parol  evidence  as  to  the  agreement 
in  respect  thereto  is  admissible — Louisville 
&  N.  R.  Co.  v.  Duncan   (Ala.)   34  So.  988. 

Receipts.  A  receipt  is  not  a  contract 
within  the  rule  and  may  be  contradicted  by 
parol  (Lacraberi  v.  Wise  [Cal.]  71  Pac.  175; 
Meislahn  v.  Irving  Nat.  Bank,  172  N.  Y.  631: 
Rarden  v.  Cunningham,  136  .\la.  26.'?;  Komp 
V.  Raymond,  175  N.  Y.  102)  and  this  has 
been  held  to  include  a  receipt  for  goods 
"in  good  condition"    (Comerford  v.   Smith,   82 


§5 


PAROL  EVIDENCE  TO  VARY  WRITING. 


1145 


to  vary  official  or  judicial  records/®  and  prior  and  contemporaneous  oral  agreements, 
are  not  admissible  unless  they  relate  to  a  distinct  subject-matter,"  or  one  upon 


App.  Div.  [N.  Y.]  638)  but  a  contract  em- 
bodied in  a  receipt  stands  on  the  same  foot- 
ing as  other  contracts — Grier  v.  Mutual  Life 
Ins.  Co.,  132  N.  C.  542.  A  recital  of  full  sat- 
isfaction of  certain  claims  has  been  held  to 
be  contractual  and  not  to  be  varied  by  parol 
— ^Vacheron  v.  Hildebrant,  39  Misc.  (N.  Y.) 
61.  A  receipt  in  full  on  account  of  a  cer- 
tain purcliase  does  not  preclude  evidence 
that  the  buyer  did  not  finally  accept  the 
goods  and  vi^aive  defects — Seeger  v.  Mani- 
towoc Steam  Boiler  Works  (Wis.)  97  N.  W. 
485. 

Customs  and  usages.  Evidence  of  usage 
is  not  admissible  to  contravene  the  terms  of 
a  contract — Currie  v.  Syndicate  Des  Culti- 
vators, 104  111.  App.  165;  Withers  v.  Moore 
(Cal.)  71  Pac.  697;  Mcintosh  v.  Pendleton, 
75  App.  Div.  (N.  Y.)  621;  Swift  v.  Occidental 
Min.  &  Petroleum  Co.  (Cal.)  74  Pac.  700. 
Contract  requiring  seller  to  pay  duties,  etc., 
on  cargo  cannot  be  modified  by  evidence  of 
usage  that  reductions  of  duty  operated  to 
the  benefit  of  the  purchaser — Withers  v. 
Moore  (Cal.)  74  Pac.  159.  As  to  usage  to 
explain  ambiguous  contract,  see  infra,  this 
section,  page  1144. 

Shov^ing  representative  capacity  of  obli- 
gor. It  is  generally  held  that  one  signing 
a  contract  apparently  a  personal  obligation 
cannot  show  that  he  signed  as  agent  for 
another — Bohn  Mfg.  Co.  v.  Reif  (Wis.)  93  N. 
W.  466;  American  Alkali  Co.  v.  Bean,  125 
Fed.  823.  It  may  however  be  shown  that 
joint  makers  of  a  note  signed  as  partners — 
Markham  v.  Cover  (Mo.  App.)   72  S.  W.  474. 

86.  To  show  what  was  included  in  an 
adjudication — Rubel  v.  Title  Guarantee  & 
Trust  Co..  199  111.  110;  Oster  v.  Broe  (Ind.)  64 
N.  E.  918.  But  see  Waterhouse  v.  Levine,  182 
Mass.  407;  Cassidy  v.  Mudgett,  71  N.  H.  491. 
But  the  judgment  cannot  be  impeached  by 
such  evidence — Rubel  v.  Title  Guarantee 
&  Trust  Co.,  199  111.  110.  To  show  that  a 
continuance  was  granted — Speirs  Fish  Co. 
v.  Robbins,  182  Mass.  128.  To  show  the  date 
when  costs  were  taxed — State  v.  Stinebaker, 
90  Mo.  App.  280.  Contracts  of  the  fiscal 
court  cannot  be  varied  by  parol — Danville. 
etc..  Turnpike  Road  Co.  v.  Lincoln  County 
Fiscal  Court  (Ky.)  77  S.  W.  379.  A  letter 
of  the  judge  Is  inadmissible  to  contradict 
the  record  of  his  court — Bent  v.  Stone 
(Mass.)    68  N.   E.   46. 

Assessment  roll  cannot  be  varied  by  parol 
as  to  date  of  assessment — Allen  v.  McKay 
(Cal.)    72    Pac.    713. 

87.  Rector  v.  Hartford  Deposit  Co.,  102 
111.  App.  554;  Martens  v.  Pittock  (Neb.)  92 
N.  W.  1038;  Drischman  v.  McManemin,  68 
N.  J.  Law,  337;  Fuller  &  Co.  v.  Schrenk,  171 
n!  Y.  671;  Bowery  Bank  v.  Hart,  77  App. 
Div.  (N.  Y.)  121;  Ross  v.  Portland  Coffee  & 
Spice  Co.,  30  Wash.  647,  71  Pac.  184;  Chris- 
topher, etc..  Foundry  Co.  v.  Yeager.  202  111. 
486-  Peterson  v.  Ferbrache  (Neb.)  93  N.  W. 
1011-  Sutton  V.  Griebel,  118  Iowa,  78;  Over 
v  V/alzer,  103  111.  App.  104;  Ferguson  Con- 
tracting Co.  v.  Manhattan  Trust  Co.  (C.  C. 
A  )  118  Fed.  791;  Grubbs  v.  Boon,  201  111. 
98-  Colwell  V.  Brown,  103  111.  App.  22;  Can- 
non v  Michigan  Mut.  Life  Ins.  Co.,  103  111. 
App  414;  Colonial  &  U.  S.  Mortg.  Co.  v. 
Jeter  (Ark  )  71  S.  W.  945;  Franklin  v.  Brown- 


ing (C.  C.  A.)  117  Fed.  226;  Gam  v.  Cordrey 
(Del.)  53  Atl.  334;  Tyson  v.  Neill  (Idaho) 
70  Pac.  790;  Arnold  v.  Scharbauer,  118  Fed. 
1008;  Howard  v.  Scott,  98  Mo.  App.  509;  John 
O'Brien  Lumber  Co.  v.  Wilkinson  (Wis.) 
94  N.  W.  337;  Sargent  v.  Cooley  (N.  D.)  94 
N.  W.  576;  Mead  v.  Dunlevie,  174  N.  Y.  108; 
First  Nat.  Bank  v.  Wells,  98  Mo.  App.  573. 

The  agreement  to  be  proved  by  parol  must 
relate  to  a  subject  distinct  from  that  to 
which  the  writing  relates — Jolinson  v.  Kin- 
dred State  Bank  (N.  D.)  96  N.  W.  5S8.  Pa- 
rol evidence  is  held  Inadmissible  to  prove 
contemporaneous  agreement  by  lessor  to 
repair  (Thompson  Foundry  &  Mach.  Works 
V.  Glass,  136  Ala.  648)  by  mortgagee  to  ex- 
tend time  of  payment  (Connersville  Bug- 
gy Co.  V.  Dowry  [Mo.  App.]  77  S.  W.  771) 
by  employer  to  pay  bonus  (McGarrigle  v 
McCosker,  83  App.  Div.  [N.  Y.]  184)  to 
show  that  one  adopting  child  by  written  arti- 
cles agreed  to  make  her  his  heir  (Brant- 
ingham  v.  Huff,  174  N.  Y.  53).  To  show  a 
collateral  agreement  as  to  the  purpose  for 
which  money  secured  by  mortgage  was  to 
be  used  in  an  action  to  enforce  the  mort- 
gage as  a  purchase  price  lien  (Crow  v.  Kell- 
man  [Tex.  Civ.  App.]  70  S.  W.  564)  to 
show  collateral  agreement  as  to  good  will 
in  connection  with  a  bill  of  sale  silent 
thereon  (Walther  v.  Stampfll,  91  Mo.  App. 
398)  to  show  agreement  not  to  reengage 
in  business  as  collateral  to  a  contract  for 
sale  of  business  Including  good  will  (Zant- 
urjlan  v.  Boornazlan  [R.  I.]  55  Atl.  199)  to 
show  oral  warranty  in  connection  witli 
written  contract  of  sale  (Kummer  v.  Du- 
buque Turbine  &  Roller  Mills  Co.  [Neb.]  93 
N.  W.  938)  to  show  that  seller  agreed  to 
secure  the  release  of  liens — Ruckman  v. 
Imbler   Lumber   Co.,    42   Or.   231,   70   Pac.    811. 

On  written  contract  to  ship  all  lumber 
by  vessels  of  a  party  oral  evidence  of  the 
understanding  as  to  amount  to  be  shipped 
is  inadmissible — Dennis  v.  Slyfleld  (C.  C. 
A.)  117  Fed.  474.  Where  there  Is  a  written 
agreement  for  appraisal  of  loss  a  parol 
agreement  that  a  certain  sum  would  be 
paid  in  any  event  cannot  be  shown — Towns- 
end  v.  Greenwich  Ins.  Co.,  39  Misc.  (N.  Y.) 
87.  Where  a  lease  provided  for  a  renewal 
at  such  sum  as  lessor  might  In  the  mean- 
time receive  an  offer  of,  a  parol  agreement 
that  if  no  offers  were  made  the  renewal  . 
should  be  at  the  same  rate  cannot  be  shown 
— Slaughter  v.  De  Vitt  (Tex.  Civ.  App.)  71 
S.   W.    616. 

Collateral  agreements  held  admissible. 
Where  the  written  order  for  goods  does  not 
purport  to  contain  any  of  the  condition.':; 
of  the  sale,  parol  evidence  of  a  warranty  is 
admissible — Puget  Sound  Iron  &  Steel  Works 
V.  Clemmons  (Wash.)  72  Pac.  465.  An  agree- 
ment by  grantor  to  construct  certain  streets 
near  the  premises  does  not  vary  a  deed — ■ 
Drew  V.  Wiswall  (Mass.)  67  N.  E.  666.  Parol 
evidence  of  negotiations  consistent  with  the 
contract  is  admissible — Colvin  v.  McCormick 
Cotton  Oil  Co.,  66  S.  C.  61.  The  fact  that 
rules  are  printed  on  the  same  sheet  with  a 
time  table  stating  when  It  took  effect  does 
not  preclude  oral  evidence  of  when  the  rules 
took  effect — Lake  Erie  &  W.  R.  Co.  v.  Char- 
man    (Ind.)    67    N.    E.    923.      Writing  contem- 


il46 


EVIDENCE. 


§5 


which  the  writing  is  incomplete."     Parol  evidence  is  admissible  to  explain  a  writ- 
ino-  where  it  is  ambiguous/®  to  show  grounds  of  invalidity  not  apparent  on  its 


poraneous  with  order  may  be  shown  though 
it  conflicts  with  printed  terms  on  order 
blanli — Eastern  Mfg.  Co.  v.  Brenk  (Tex. 
Civ.   App.)    73    S.   W.    B3S. 

88.  Guttentag  v.  Whitney,  79  App.  Div. 
(N.  Y.)  596.  A  parol  agreement  as  to  pos- 
session contemporaneous  with  a  bill  of  sale 
is  admissible — Clark  v.  Shannon.  117  Iowa, 
645.  It  may  be  proved  that  the  date  in- 
serted in  a  blank  was  contrary  to  the  agree- 
ment of  the  parties — Pacific  Mut.  Ins.  Co.  v. 
Shaffer  (Tex.  Civ.  App.)  70  S.  W.  566.  The 
purpose  for  which  an  assignment  was  made 
may  be  shown  by  parol — Matthews  v.  Capi- 
tal Fire  Ins.  Co.,  115  Wis.  272.  Agreement 
of  a  carrier  as  to  watering  stock,  etc.,  may 
be  shown  though  there  was  a  written  bill 
of  lading — Illinois  Cent.  R.  Co.  v.  Eblen,  24 
Ky.  L.  R.  1609,  71  S.  W.  919.  One  of  the 
parties  to  a  building  contract  may  show  a 
contemporaneous  agreement  that  the  ma- 
terials were  to  be  purchased  In  eastern 
markets — Creedon  v.  Patrick  (Neb.)  91  N.  W. 
872.  Parol  agreement  as  to  time  of  pay- 
ment may  be  shown  when  the  written  con- 
tract is  silent  thereon — Ashe  v.  Carolina  R. 
Co.,  65  S.  C.  134.  A  written  contract  of  em- 
ployment to  gather  certain  cattle  does  not 
exclude  a  contemporaneous  oral  employment 
to  gather  other  cattle — Lonabaugh  v.  Mor- 
row (T\'^yo.)  70  Pac.  724.  Where  one  agreed 
in  writing  to  make  "a  satisfactory  provision 
of  settlement"  of  a  certain  mortgage  it  may 
be  shown  by  parol  that  he  was  to  pay  it — 
Lawrence  v.  Sullivan,  79  App.  Div.  (N.  T.) 
453.  A  contract  of  sale  providing  for  sight 
draft  with  bill  of  lading  attached  is  not 
varied  by  a  subsequent  agreement  as  to  the 
bank  on  w^hich  sucli  draft  should  be  drawn 
— Town  v.  Jepson  (IMich.)  95  N.  W.  742.  A 
letter  merely  confirming  a  previous  sale  Is 
not  a  contract  and  the  terms  of  the  sale 
may  be  shown  by  parol — Courtney  v.  Knabe 
&  Co.  Mfg.  Co.    (Md.)   55  Atl.   614. 

89.  Ambiguity  of  particular  contracts. 
Where  the  Christian  name  of  a  party  is 
left  blank  in  the  contract  it  may  be  shown 
by  parol — La  Vie  v.  Tooze  (Or.)  74  Pac.  210. 
And  where  there  are  two  persons  of  the 
same  name  parol  evidence  Is  admissible  to 
show  who  was  referred  to  by  an  instru- 
ment— Newberry  v.  Norfolk  &  S.  R.  Co.  (N. 
C.)  45  S.  E.  356.  Where  there  was  a  written 
bill  of  sale  and  a  collateral  agreement  in 
writing  for  a  resale  on  certain  terms,  parol 
evidence  is  admissible  to  show  whether  the 
transaction  was  a  sale  or  a  loan — Farmer  v. 
Farmer  &  Son  Type  Founding  Co.,  S3  App. 
Div.  (N.  Y.)  218.  Where  a  letter  was  written 
in  French  and  the  meaning  of  a  word  there- 
in was  ambiguous,  the  evidence  of  the  writ- 
er's French  teacher  as  to  his  sugg-estion  ni 
such  word  and  the  meaning  which  he  told 
the  writer  attached  thereto  was  held,  by 
a  divided  court,  to  be  inadmissible — Com- 
monwealth Title  Ins.  &  Trust  Co.  v.  Cole- 
man (Pa.)  55  Atl.  320.  Where  the  descrip- 
tion of  the  contract  secured  by  a  bond  is 
ambiguous,  the  contract  may  be  identified 
by  parol — Nelson  v.  Willey  (Md.)  55  Atl.  527. 
There  is  no  ambiguity  admitting  parol  ex- 
planation in  a  contract  to  keep  a  building  "in 
a  good  habitable  condition"  (Jordan  v.  Neal 
[Miss.]    33    So.    17)    or    in    the    clause    "with 


privilege  of  longer"  In  a  lease  (Howard  v. 
Tomicich  [Miss.]  33  So.  493)  nor  In  a  con- 
tract for  the  building  of  a  road  because  it 
is  silent  as  to  the  material  (Trustees,  etc.. 
of  Town  of  Southampton  v.  Jessup,  173  N. 
Y.  84)  but  parol  evidence  has  been  admitted 
to  explain  a  contract  "to  establish  and  main- 
tain a  freight  and  passenger  depot — Murray 
v.  Northwestern  R.  Co.,  64  S.  C.  520. 

A  contract  to  furnish  paper  "same  as  has 
been  furnished  during  the  last  12  months"  is 
ambiguous  as  to  whether  the  reference  to 
past  delivery  limits  the  quantity  or  only 
indicates  the  quality — Excelsior  Wrapper  Co. 
v.  Messinger  (Wis.)  93  N.  W.  459.  Where 
a  contract  provides  for  work  to  be  done  in 
the  same  manner  as  during  the  previous 
year,  parol  evidence  is  admissible — Oliver 
V.  Oregon  Sugar  Co.,  42  Or.  276,  70  Pac.  902. 
Articles  of  incorporation  for  the  sale  of 
"directory  machines"  may  be  explained  by 
showing  the  make  of  machine  intended — Na- 
tional Mechanical  Directory  Co.  v.  Polk  (C. 
C.  A.)  121  Fed.  742. 

A  contract  for  rent  "for  the  first  three 
years  at  $3,000"  is  clear  that  the  $3,000  is  for 
the  entire  three  years  and  parol  evidence 
that  $3,000  per  year  was  intended  is  inadmis- 
sible— Liebeskind  v.  Moore  Co.,  84  N.  Y. 
Supp.  850.  Order  held  ambiguous  as  to 
whether  It  was  continuing — Burmister  & 
Sons  Co.  V.  Empire  Gold  Mln.  &  Mill.  Co. 
(Ariz.).  71  Pac.  961.  Contract  for  railroad 
construction  held  unambiguous — Atchison, 
etc.,  R.  Co.  V.  Truskett  (Kan.)  72  Pac.  562. 
Patent  to  land  held  to  present  ambiguity 
admitting  oral  evidence — Dillingham  v. 
Smith    (Tex.  Civ.  App.)    70  S.  W.  791. 

Agreement  to  erect  a  "complete  plant"  held 
not  ambiguous — Rooney  v.  Thomson,  84  N. 
Y.  Supp.  263.  Contract  for  procuring  Insur- 
ir.ce  held  ambiguous  as  to  vrhether  it  in- 
cluded property  outside  the  state — Tanen- 
haum  V.  Levy,  83  App.  Div.  (N.  Y.)  319. 
There  Is  no  ambiguity  in  a  release  of  dam- 
ages for  specified  physical  injuries  which 
will  admit  evidence  that  other  injuries  were 
then  unknown — Moore  v.  Missouri  R.  Co. 
(Tex.  Civ.  App.)  69  S.  W.  997.  Contract  for 
piping  water  to  residence  held  ambfguous 
as  to  whether  contract  ■was  to  pipe  only 
from  main  point  of  diversion  or  from  sources 
of  supply — Daly  v.  Ruddell,  137  Cal.  671,  70 
Pac.    784. 

Customs  and  usages.  Usage  Is  admissible 
to  explain  ambiguities — Gehl  v.  Milwau- 
kee Produce  Co.  (Wis.)  93  N.  W.  26;  Hayes 
^■.  Union  Mercantile  Co.,  27  Mont.  264,  70 
Pac.  975;  Richardson  v.  Cornforth  (C.  C. 
\.)  118  Fed.  325.  Thus  It  may  be  shown  that 
jy  usage  words  used  in  a  contract  have  ac- 
luired  a  peculiar  sense  (Ocean  S.  S.  Co.  v. 
Aetna  Ins.  Co.,  121  Fed.  882)  or  that  timber 
if  certain  dimensions  meant  in  the  green 
md  not  after  shrinkage — Rastetter  v.  Reyn- 
)ld3  (Ind.)  66  N.  E.  612.  As  to  usage  to 
contravene  unambiguous  terms,  see  supra. 
this  section,  page  1143. 

Teclinieal  Tvords.  Parol  evidence  is  always 
admissible  to  explain  the  meaning  of  tech- 
nical words  and  phrases  used  in  a  contract — 
Hinote  V.  Brigman  (Fla.)  33  So.  303;  Hey- 
worth  V.  Miller  Grain  &  Elevator  Co.,  174 
Mo.  171;   Cannon  v.  Hunt,   116  Ga.  452;  Glenn 


§5 


PAROL  EVIDENCE  TO  VARY  WRITING. 


1147 


face,®"  to  show  what  the  consideration  was  or  that  it  has  failed,®^  and  under  this 
rule  proof  of  conditions  precedent  to  the  taking  effect  of  the  contract  has  been  ad- 
mitted,*^ as  has  evidence  of  performance  of  a  parol  contract  to  secure  which  the 
written  obligation  was  given.°'     The  real  nature  of  the  instrument  may  be  shows. 


V.  Strickland.  21  Pa.  Super.  Ct.  88.  It  has 
been  held  inadmissible  to  show  that  "gas" 
meant  gas  from  a  gas  well  only  not  gal 
from  an  oil  well — Burton  v.  Forest  Oil  Co., 
204  Pa.  349. 

To  identify  subject  matter.  Where  the 
description  in  a  deed  is  indefinite  parol  evi- 
dence is  admissible  to  identify  the  prop- 
erty fKeplinger  v.  Woolsey  [Neb.)  93  N. 
W.  lOOS;  Sloan  v.  King  [Tex.  Civ.  App.]  77 
S.  W.  48;  Fidelity  Mut.  Fire  Ins.  Co.  v.  Mur- 
phy [Neb.]  95  N.  W.  702;  Stancill  v.  Spain 
[N.  C]  45  S.  E.  466;  Orvls  v.  Elmira  R.  Co. 
172  N.  Y.  65G)  but  where  a  description  is 
patently  inadequate,  parol  evidence  is  Inad- 
missible (Cammack  v.  Prather  [Tex.  Civ. 
App.]  74  S.  W.  354;  Goodsell  v.  Rutland-Cana- 
dian R.  Co.  [Vt.]  56  Atl.  7)  and  an  offer  of 
"my  lot"  is  too  Indefinite  (Farthing  v.  Ro- 
chelle.  131  N.  C.  563)  as  is  a  mortgage  on 
"seventy  more  or  less  of  corn  in  field"  (Au- 
gustine V.  McDowell  [Iowa]  94  N.  W.  918) 
though  a  description  of  land  as  that  of  a 
party  "adjoining  on  the  east"  to  certain 
premises  may  be  rendered  certain  by  pa- 
rol— Heyward  v.  Willmarth,  87  App.  Div. 
(N.  T.)  125.  And  parol  evidence  Is  not  ad- 
missible to  identify  the  property  described 
in  a  contract  in  a  suit  to  have  it  specifically 
enforced — Farthing  v.  Rochelle,  131  N.  C. 
r-'-?-:  Knight  v.  Alexander,  42  Or.  621,  71  Pac. 
657. 

A  description  of  coal  lands  held  not  open 
to  proof  that  a  particular  vein  and  not 
all  coal  within  the  boundaries  given  was  In- 
tended— King  V.  New  York  &  C.  Gas  Coal 
Co..  204  Pa.  628.  Description  of  building  of 
a  certain  street  number  and  "additions"  held 
ambiguous  as  to  whether  It  included  an 
adjoining  building  having  a  separate  street 
number — Connecticut  Fire  Ins.  Co.  v.  Hil- 
brant  (Tex.  Civ.  App.)  73  S.  W.  558.  "Where 
chattel  mortgage  covers  all  the  goods  in  a 
certain  store,  the  goods  may  be  identified  by 
parol — Davis  v.  Turner  (C.  C.  A.)  120  Fed. 
605.  Plat  referred  to  in  deed  as  part  of  de- 
scription may  be  identified  by  parol — Snooks 
V.  Wlngfield.  52  W.  Va.  441. 

90.  Fraud.  Le  Bleu  v.  Savole,  109  La.  680; 
Leicher  v.  Keeney,  98  Mo.  App.  394;  American 
Cotton  Co.  v.  Collier  (Tex.  Civ.  App.)  69  S.  W. 
1021;  Hurlbert  v.  Kellogg  Lumber  Co.,  115 
Wis.  225;  Telluride  Power  Transmission  Co. 
V.  Crane  Co.,  103  111.  App.  647;  Rambo  v.  Pat- 
terson (Mich.)  95  N.  W.  722.  And  where 
fraud  is  charged  parol  evidence  of  the  un- 
derstanding of  the  parties  is  admissible  to 
rebut  the  charge — Sloan  v.  Rose  (Va.)  43  S. 
E     329 

Mistake — Kee  v.  Davis,  137  Cal.  456,  70 
Pac.  294;  Gwaltney  v.  Provident  Sav.  Life 
Assur.  Soc,  132  N.  C.  925;  Wleneke  v.  Depu- 
ty (Ind.  App.)  68  N.  E.  921;  Windell  v.  Read- 
man  Warehouse  Co.,  30  Wash.  469,  71  Pac. 
56;  Equitable  Trust  Co.  v.  Milligan  (Ind. 
App.)  65  N.  E.  1044;  Butler  v.  State  (Miss.) 
33  So.  847  That  the  contract  was  not  cor- 
rectly reduced  to  writing — Fidelity  Mut. 
Fire  Ins.  Co.  v.  Lowe  (Neb.)  93  N.  W.  749. 
That  blanks  were  not  filled  In  accordance 
with     the     understanding     of     the     parties — 


Gribble  v.  Everett  (Mo.  App.)  71  S.  W.  1124: 
Windell  v.  Readman  Warehouse  Co.,  30  Wash. 
469,  71  Pac.  56.  Fraud  or  mistake  must  be 
pleaded — Krueger  v.  Nicola,  205  Pa.  38;  New 
Idea  Pattern  Co.  v.  Whelan,  75  Conn.  455. 
And  it  has  been  held  that  reformation  must 
be  asked  where  mistake  Is  claimed  in  the 
statement  of  an  .account — Nystuen  v.  Han- 
sun    (Iowa)    91  N.  W.   1071. 

Subsequent  conduct  of  parties.  Invalid- 
ity of  a  cliattel  mortgage  by  reason  of  acts 
of  ownership  permitted  to  the  mortgagor 
may  be  shown  by  parol — Stevens  y.  Curran 
(Mont.)  72  Pac.  753. 

91.  Wade  v.  Bent,  24  Ky.  L.  R.  1294,  71 
S.  W.  444;  Linkswiler  v.  Hoffman,  109  La. 
948;  Conklin  v.  Hancock,  67  Ohio  St.  455; 
Henry  v.  Zurtlieh,  203  Pa.  440;  Clark  v.  Hed- 
den.  109  La,  147;  Groos  &  Co.  v.  First  Nai. 
Bank  (Tex.  Civ.  App.)  72  S.  W.  402;  Firsi 
Nat.  Bank  v.  Flynn,  117  Iowa,  493;  Chees- 
man  v.  Nicholl  (Colo.  App.)  70  Pac.  797.  But 
see  Arnold  v.  Arnold,  137  Cal.  291,  70  Pac. 
23;  Harraway  v.  Harraway,  136  Ala.  499: 
Teague  v.  Teague  (Tex.  Civ.  App.)  71  S.  W. 
555.  But  In  Arkansas  It  is  held  that  parol 
evidence  Is  not  admissible  to  dispute  the 
recitals  of  consideration  in  a  deed — Davis  v. 
Jernigan  (Ark.)   76  S.  W.  554. 

Want  or  failure  of  consideration — Holme.* 
v.  Farris,  97  Mo.  App.  305.  Particularly 
where  the  statement  of  the  consideration  is 
ambiguous — Burke  v.   Mead,    159   Ind.    252. 

93.  Caudle  v.  Ford,  24  Ky.  L.  R.  1764. 
72  S.  W.  270;  Medical  College  Laboratory  v. 
New  York  University,  76  App.  Div.  (N.  Y.) 
i8;  Clark  v.  Ducheneau  (Utah)  72  Pac.  331. 
But  see  contra,  Findley  v.  Means  (Ark.)  73 
S.  W.  101;  Third  Nat.  Bank  v.  Reichert  (Mo. 
App.)  73  S.  W.  803;  Sargent  v.  Cooley  (N.  D.) 
94  N.  W.  576.  That  the  contract  was  not  to 
be  delivered  until  further  directions  (McCor- 
mick  Harvesting  Mach.  Co.  v.  Morlan  [Iowa] 
96  N.  W.  976)  or  was  not  to  be  used  unless 
another  signed  as  joint  obligor  Is  admissible 
(People  V.  Sharp  [Mich.]  94  N.  W.  1074)  but 
where  the  subject  matter  of  such  condition 
is  embodied  In  the  contract  it  cannot  be 
shown  by  parol  (Jamestown  Business  Col- 
lege Ass'n  V.  Allen,  172  N.  Y.  291)  and  evi- 
dence of  a  condition  subsequent  on  which 
the  contract  should  become  void  Is  inadmis- 
sible— Central  Sav.  Bank  v.  O'Connor  (Mich.) 
94  N.  W.  11. 

Oral  agreement  making  payment  of  inter- 
est on  mortgage  conditional  on  payment  of 
another  debt  by  the  mortgagee  (Mott  v. 
Rutter  [N.  J.  Ch.]  54  Atl.  159)  or  notes  con- 
ditional on  certain  machinery  being  put  in 
good  working  order  (Aultman  v.  Hawk 
[Neb.]  95  N.  W.  695)  or  on  funds  for  pay- 
ment being  realized  from  a  certain  source 
(Fuller  V.  Law  [Pa.]  56  Atl.  333;  Boone  v. 
Mierow  [Tex.  Civ.  App.]  76  S.  W.  772)  or 
that  security  given  by  another  would  be 
first  exhausted — Anderson  v.  Matheny  (S. 
D.)    95  N.  W.   911. 

93.  The  maker  of  a  note  may  show  that 
it  was  given  to  secure  the  performance  by 
him  of  a  contract  and  that  he  has  performed 
the    snme — Gifford    v.    Fox    (Neb.)    95    N.    W 


1148 


EVIDENCE. 


§   6A 


as  that  a  deed  absolute  on  its  face  was  charged  with  a  trust^*  or  was  intended  as 
security,®^  that  a  bill  of  sale  was  intended  to  operate  as  a  chattel  mortgage  f^  but 
not  that  a  sale  was  conditional  where  the  bill  of  sale  was  absolute  ;'^^  and  the  real 
nature  of  the  obligation  of  persons  signing  or  indorsing  promissory  notes  may  be 
shown  by  parol.*^^ 

The  rule  excluding  parol  evidence  to  vary  a  written  contract  applies  only  to 
the  parties  thereto  and  their  privies/^  and  not  where  the  writing  is  merely  collateral 
to  the  issue.^ 

§  6.  Hearsay.  A.  General  rules. — Subject  to  certain  exceptions,  either  aris- 
ing ex  necessitate  rei  from  the  difficulty  of  other  proof  or  from  circumstances  giving 
added  guaranty  of  their  reliability,  statements  out  of  court  by  persons  not  parties 
to  the  suit  are  not  admissible  in  evidence,^  and  this  rule  applies  equally  to  letters 
and  other  private  writings.^  Matters  of  age  or  family  history,  by  reason  of  the 
difficulties  of  direct  proof  form  an  exception  to  the  hearsay  rule.*  Where  the  state- 
ments are  admissible  for  a  purpose  other  than  of  proving  the  facts  stated,  the  hear- 
say rule  does  not  apply." 


1066.  As  that  It  was  given  for  money  to  be 
used  by  him  in  the  purchase  of  property  for 
the  payee  and  that  the  property  has  been 
purchased  and  accepted  by  payee — Louis- 
viUe  Tobacco  "Warehouse  Co.  v.  Stewart,  24 
Ky.   L.   R.    934,   70  S.   W.    285. 

94.  Booth  V.  Lenox  (Fla.)  34  So.  566; 
Martin  v.  Martin  (Or.)  72  Pac.  639.  But  it  is 
otherwise  held  in  Kentucky — Holtheide  v. 
Smith,  24  Ky.  L.  R.  2535,  74  S.  W.  689.  Evi- 
dence that  a  purchase  at  foreclosure  sale 
was  for  the  benefit  of  a  third  person  does 
not  vary  the  sheriff's  certificate  of  sale — 
Emery  v.  Hanna  (Neb.)    94  N.  W.   973. 

95.  Brown  v.  Johnson,  115  Wis.  430;  Ross 
v.  Howard,  31  Wash.  393.  72  Pac.  74;  Stafford 
v.  Stafford  (Tex.  Civ.  App.)  71  S.  W.  984; 
Hurlbert  v.  Kellogg  Lumber  Co.,  115  Wis. 
225;  Beebe  v.  Wisconsin  Mortg.  Loan  Co. 
(Wis.)  93  N.  W.  1103;  Northern  Assur  Co.  v. 
Chicago  Mut.  Bldg.  &  Loan  Ass'n,  198  111. 
474.  But  it  has  been  held  that  in  an  action 
at  law  such  proof  is  inadmissible — Billings- 
ley  V.  Stutler,  52  W.  Va.  92. 

96.  Miller  v.  Campbell  Commission  Co. 
(Okl.)    74    Pac.    507. 

97.  Finnigan  v.  Shaw  (Mass.)  68  N.  E.  35; 
Hess  V.  Liebmann,   84  N.  Y.   Supp.   178. 

98.  Indorser — Loeff  v.  Taussig,  102  111. 
App.  398;  Lyndon  Sav.  Bank  v.  International 
Co.  (Vt.)  54  Atl.  191;  Elliott  v.  Moreland  (N. 
J.  Law)  54  Atl.  224;  Jaster  v.  Currie  (Neb.) 
94  N.  W.  995;  Young  v.  Sehon  (W.  Va.)  44 
S.  E.  136;  Herndon  v.  Lewis  (Mo.)  74  S.  W. 
976;  Marshall  Nat.  Bank  v.  Smith  (Tex.  Civ. 
App.)  77  S.  W.  237.  But  see  "S^^illiams  Bros. 
Co.  V.  Hanmer  (Mich.)  94  N.  W.  176.  Maker 
— McDavid  v.  McLean.  104  111.  App.  627; 
Markham  v.  Cover  (Mo.  App.)  72  S.  W.  474. 
As  that  a  maker  signed  for  accommodation — 
Tobriner  v.  White,  19  App.  D.  C.  163.  A 
transferror  may  show  an  oral  agreement  for 
a  retransfer  on  certain  conditions — Playa  de 
Oro  Min.   Co.  v.   Gage.   172  N.  Y.   630. 

99.  Central  Coal  &  Coke  Co.  v.  Good  (C. 
C.  A.)  120  Fed.  71'3;  British  &  A.  Mortg.  Co. 
V.  Cody  (Ala.)  33  So.  832;  Provident  Sav. 
Life  Assur.  Soc.  v.  Johnson,  24  Ky.  L.  R. 
1902,  72  S.  W.  754;  Pacific  Biscuit  Co.  v.  Dug- 
ger.  42  Or.  513,  70  Pac.  523;  French  v.  West- 
gate,  71  N.  H.  510;  Northern  Assur.  Co.  v. 
Chicago  Mut.  Bldg.  &  Loan  Ass'n,  198  111. 
474.      A    principal,    suing    his    agent    for    the 


consideration  received  by  the  agent  under 
a  contract  made  by  the  latter  in  his  own 
name  may  contradict  the  recitals  of  the 
contract  as  to  consideration — Barbar  v.  Mar- 
tin (Neb.)  93  N.  W.  722;  Livingston  v.  Stev- 
ens (Iowa)  94  N.  W.  925;  Livingston  v. 
Heck  (Iowa)  94  N.  W.  1098;  Crockett  v. 
Miller  (Neb.)  96  N.  W.  491;  First  Nat.  Bank 
v.   Tolerton    (Neb.)    97   N.  W.   248. 

1.  Bill  of  sale  introduced  to  prove  agency 
therein  recited — Pacific  Biscuit  Co.  v.  Dag- 
ger,  42  Or.  513,  70  Pac.   523. 

2.  Kramer  v.  Kramer,  80  App.  Dlv.  (N.  T.) 
20;  Rich  v.  Hayes,  97  Me.  293.  Declarations 
by  a  husband  that  he  was  forced  into  the 
marriage  are  inadmissible — Love  v.  Love 
(Mo.  App.)  73  S.  W.  255.  Statement  of  de- 
cedent before  accident  may  be  received  un- 
der Gen.  St.  1898,  c.  535,  providing  that 
statements  of  a  deceased  person  made  in 
good  faith  before  suit  shall  not  be  consid- 
ered hearsay — Boyle  v.  Columbian  Fire 
Proofing  Co.,   182  Mass.   93. 

Market  price.  Offers  received  by  the  owner 
are  no  evidence  of  value — LolofC  v.  Sterling 
(Colo.)  71  Pac.  1113;  Walker  v.  Farrell.  84 
N.  Y.  Supp.  182;  Stewart  v.  James  (Neb.)  95 
N.  W.  778;  Wells,  Fargo  Exp.  Co.  v.  Wil- 
liams   (Tex.    Civ.   App.)    71   S.   W.   314. 

General  repntatlon.  Adultery  cannot  be 
proved  by  neighborhood  repute  (Hopkins  v. 
Hopkins,  132  N.  C.  25)  nor  can  financial 
standing  (Coleman  v.  Lewis  [Mass.]  67  N.  E. 
603),  or  ownership  of  locomotives  by  a  cer- 
tain railroad  company — Louisville  &  N.  Ter- 
minal Co.  V.  Jacobs  (Tenn.)   72  S.  W.  954. 

3.  Black  V.  First  Nat.  Bank.  96  Md.  399; 
Culver  V.  Smith  (Mich.)  91  N.  W.  608;  Weig- 
ley  V.  Kneeland.  172  N.  Y.  625;  Oliver  v. 
Columbia  R.  Co.,  65  S.  C.  1.  A  letter  stating 
the  •writer's  reasons  for  placing  his  sister  In 
an  insane  asylum  held  inadmissible — Kuster 
V.    Press   Pub.   Co.,    80  App.   Div.    (N.    Y.)    615. 

4.  Declarations  by  father  held  inadmissi- 
ble to  show  age — Bowen  v.  Preferred  Ace. 
Ins.  Co.,  82  App.  Div.  (N.  Y.)  458.  But  a 
book  of  original  entry  by  family  physician 
has  been  admitted — Smith  v.  State  (Tex.  Cr. 
App.)  73  S.  W.  401.  One  may  testify  to  his 
own  age — State  v.  Scroggs  (Iowa)  96  N.  W. 
723;  Hancock  v.  Supreme  Council,  C.  B.  L. 
(N.  J.  Err.  &  App.)   55  Atl.  24C. 

5.  Statements    of    an    injured    person    are 


§  6B 


RES  GESTAE. 


114';> 


(§  6)  B.  Res  gestae. — Acts  and  declarations  of  the  parties  to  a  transaction 
contemporaneous  therewith  and  growing  naturall}-  therefrom  are  admissible  as  part 
of  the  res  gestae,^  as  are  the  involuntary  exclamations  of  bystanders  at  an  accident/ 
and  the  rule  includes,  to  an  extent  incapable  of  precise  definition,  acts  and  declara- 
tions before^  and  after^  the  transaction  in  issue  if  intimately  connected  therewith. 


admissible  to  show  that  he  was  conscious — 
Hayes  v.  Pitts-Kimball  Co.  (Mass.)  67  N.  B. 
249.  Statements  of  a  grantor  at  the  time 
of  a  conveyance  admissible  as  tests  of  men- 
tal capacity — Thorn  v.  Cosand  (Ind.)  67  N. 
B.   257. 

6.  A  declaration  must  be  made  under 
such  circumstances  as  to  raise  a  presumption 
that  it  was  spontaneous;  whether  a  par- 
ticular declaration  is  within  this  rule  rests 
largely  in  the  discretion  of  the  trial  court — 
Pledger  v.  Chicago  R.  Co.  (Neb.)  95  N.  "W. 
1057.  The  acts  or  declarations  must  accom- 
pany and  tend  to  illustrate  the  fact  in  issue 
— Shannon  v.  Castner,  21  Pa.  Super.  Ct.  294. 
Under  this  rule  have  been  admitted  state- 
ments by  an  agent  while  attending  to  the 
principal's  business  (Hoffman  v.  Chicago 
Title  &  Trust  Co..  198  111.  452)  if  contempo- 
raneous with  the  transaction  and  forming  a 
natural  part  of  it  (Balding  v.  Andrews  [N. 
D.]  96  N.  W.  305)  conversion  during  the 
transportation  of  cattle  between  the  owner 
and  the  carrier's  servants  (LouisviUo,  etc.,  R. 
Co.  V.  Landers,  135  Ala.  504)  declaration 
of  employe  in  charge  of  machine  that  it 
worked  satisfactorily,  made  in  presence  of 
representatives  of  the  seller  (Stecher  Lith- 
ographic Co.  V.  Inman,  175  N.  Y.  124)  dec- 
laration of  a  surveyor  at  the  time  of  locat- 
ing a  boundary  (Hornberger  v.  Giddings 
[Tex.  Civ.  App.]  71  S.  W.  989)  direction  to 
prepare  a  new  will,  made  on  learning  of 
the  destruction  of  the  old  one  (McElroy  v. 
Phlnk  [Tex.  Civ.  App.]  74  S.  W.  61),  or  that  a 
bond  ■was  not  to  be  used  unless  another  signed 
(People  V.  Sharp  [Mich.]  94  N.  W.  1074) 
declarations  of  a  street  commissioner  as  to 
the  orders  under  which  he  was  acting  (Hag- 
gart  V.  California  Borough,  21  Pa.  Super. 
Ct.  210)  declarations  of  signer  of  note  at 
the  time  of  signing  as  to  the  purpose  for 
which  it  was  given  (Terrill  v.  Tillison  [Vt.] 
54  Atl.  187)  statements  made  by  a  seller  for 
the  purpose  of  tendering  the  goods  for  in- 
spection— Pittsburgh  Plate  Glass  Co.  v.  Ker- 
lin  Bros.    (C.  C.  A.)   122  Fed.   414. 

The  general  understanding  of  persons  in 
the  vicinity  that  one  had  gone  to  a  certain 
place  for  a  specified  purpose  is  no  part  of  the 
res  gestae — Southern  Kansas  R.  Co.  v.  Crump 
(Tex.  Civ.  App.)  74  S.  "W.  335.  On  an  issue 
whether  there  was  heat  in  a  depot,  a  direc- 
tion of  the  agent  to  a  boy  to  get  coal  is  part 
of  the  res  gestae — St.  Louis  S.  W.  R.  Co.  v. 
Patterson  (Tex.  Civ.  App.)  73  S.  W.  987. 
Where  injuries  were  caused  by  the  negli- 
gence of  a  person  not  an  engineer  who  was 
running  a  switch  engine  it  may  be  shown 
who  sent  him  out,  as  part  of  the  res  gestae 
— Chicago  Terminal  Transfer  R.  Co.  v.  Stone 
(C.  C.  A.)  118  Fed.  19.  On  an  issue  whether 
theatrical  performances  were  meritorious, 
remarks  of  the  audience  while  leaving  dur- 
ing the  performance  are  admissible  as  part 
of  the  res  gestae — Charley  v.  Potthoff  (Wis.) 
95  N.  W.  124.  In  an  action  for  maintaining 
a  nuisance,  statements  of  plaintiff's  boarders 
when     leaving    are    admissible — Hoffman     v. 


Bdison  Elec.  Illuminating  Co.,  87  App.  Div. 
(N.  Y.)  371.  On  an  issue  of  residence  state- 
ments of  the  person  made  on  his  trial  for 
vagrancy  that  he  was  a  tramp  are  part  of 
the  res  gestae — Thomas  v.  Macon  County 
(Mo.)   74  S.  W.  999. 

Contemporaneoas  memoranda.  Bntries  of 
log  measurements  made  by  a  seller  when  the 
logs  were  measured  by  him  and  the  buyer 
are  admissible — Place  v.  Baugher,  159  Ind. 
232.  But  not  memorandum  taken  during 
conversation  without  the  knowledge  of  the 
other  party  thereto — Gana  v.  Wormser,  83 
App.  Div.  (N.  Y.)  505.  The  numbers  as  called 
out  by  the  men  counting  a  flock  of  sheep  may 
be  shown  as  part  of  the  res  gestae — Gresham 
V.  Harcourt   (Tex.  Civ.  App.)   75  S.  W.  808. 

Declaratious  characterizing  possession. 
Declarations  of  owner  in  possession  as  to 
title,  etc.,  have  been  admitted  (Ratliff  v. 
RatlifE,  131  N.  C.  425)  but  only  where  de- 
clarant has  both  title  and  possession  (Whel- 
chel  V.  Gainesville  R.  Co.,  116  Ga.  431;  Bn- 
neking  v.  Woebkenberg,  88  Minn.  259)  as 
have  declarations  at  the  time  of  erecting 
building  by  one  claiming  adversely  (Kellum 
v.  Mission  of  Immaculate  Virgin,  82  App. 
Div.  [N.  Y.]  523)  declarations  of  intent  ac- 
companying a  trespass  (United  States  v.  Gen- 
try [C.  C.  A.]  119  Fed.  70)  declarations  of 
ownership  by  one  in  possession  of  a  contract 
(New  York  Life  Ins.  Co.  v.  Johnson's  Adm'r, 
24  Ky.  L.  R.  1867,  72  S.  W.  762)  but  declara- 
tions of  one  in  possession  as  agent  are  not 
within  rule  admitting  declarations  charac- 
terizing possession  (Perkins  v.  Brinkley  [N. 
C]  45  S.  E.  652)  and  declarations  of  one  In 
possession  may  characterize  his  possession 
but  cannot  establish  (Dozier  v.  McW^horter 
[Ga.]  45  S.  E.  61)  nor  are  admissions  by 
occupant  that  his  possession  was  not  ad- 
verse admissible  when  made  after  the  run- 
ning of  the  statutory  period — Baty  v.  Elrod 
(Neb.)    92   N.    W.    1032. 

7.  Exclamation  of  bystander  Indicating 
belief  that  defendant's  effort  to  run  a  train 
over  an  injured  bridge  was  dangerous  (Har- 
rill  v.  South  Carolina  R.  Co.,  132  N.  C. 
655)  or  outcry  by  a  bystander  who  saw  the 
impending  danger  (Oliver  v.  Columbia  R. 
Co.,  65  S.  C.  1)  are  admissible,  but  not 
declarations  of  bystanders  after  an  accident 
(Gosa  V.  Southern  R.  [S.  C]  45  S.  B.  810)  as 
to  the  conductor  immediately  after  the  acci- 
dent that  If  the  car  had  stopped  the  plaintiff 
would  not  have  been  hurt — Indianapolis  St. 
R.  Co.  v.  Whitaker  (Ind.)   66  N.  E.  433. 

8.  An  assault  upon  a  woman  and  the  fact 
that  she  informed  her  husband  and  he  went 
Immediately  to  the  scene  of  the  assault  are 
part  of  the  res  gestae  of  the  killing  of  the 
husband  by  the  assailants  of  the  wife — Petrle 
V.  Cartwright,  24  Ky.  L.  R.  954.  70  S.  W.  297, 
59  L.  R.  A.  720.  Declarations  of  insured 
shortly  before  death  indicating  suicidal  in- 
tent are  admissible  (Kerr  v.  Modern  Wood- 
men of  America  [C.  C.  A.]  117  Fed.  593)  as  is 
a  letter  indicating  intent  to  commit  suicide 
found    In    the   room   of   one   who   disappeared 


I  ISO 


EVIDENCE. 


§   6(J 


(§6)  C.  Admissions  or  declarations  against  inter est.^'* — Upon  the  presump- 
tion that  one  will  not  readily  speak  untruthfully  against  his  own  interest,  admis- 
sions and  declarations  out  of  court  are  admissible  if  made  by  a  party^^  or  one  in 


during  the  night  from  a  steamer — Rogers  v. 
Manhattan  Life  Ins.  Co.,  138  Cal.  285,  71  Pac. 
348. 

9.  Statement  of  decedent's  daughter  aft- 
er a  suicide  as  to  where  the  revolver  was  is 
admissible  but  not  her  statements  as  to  how 
it  came  to  be  there  (Treat  v.  Merchants' 
Life  Ass'n,  198  111.  431)  declarations  by  an 
assailant  some  time  after  the  assault  (Goli- 
bart  V.  Sullivan,  30  Ind.  App.  428)  declara- 
tions as  to  the  fact  of  a  sale  made  some  time 
afterward  not  admissible  (Lumm  v.  How- 
ells  [Utah]  74  Pac.  432)  declarations  of  a 
foster  parent  after  adoption  and  not  in  the 
presence  of  the  child  as  to  their  relations 
Rulofson  V.  Billings  [Cal.]  74  Pac.  35)  dec- 
larations of  maker  two  days  after  execution 
of  note  as  to  amount  thereof  (Union  Trust 
Co.  V.  Seelig.  83  App.  Div.  [N.  Y.]  568)  state- 
ments as  to  the  origin  of  a  fire  after  it  was 
over  (Atchison,  etc.,  R.  Co.  v.  Phipps  [C.  C. 
A.]  125  Fed.  478)  or  15  minutes  after  it 
started  (Lyman  v.  Southern  R.  Co.,  132  N. 
C.  721)  declarations  of  bystander  after  an 
accident  (Gosa  v.  Southern  R.  [S.  C]  45  S. 
E.  810)  declarations  by  testator  15  minutes 
after  executing  will  (Davidson  v.  Davidson 
[Neb.]  96  N.  W.  409)  subsequent  narrations 
of  a  party  as  to  what  was  said  at  the  mak- 
ing of  a  contract  (New  York  Life  Ins.  Co.  v. 
Johnson's  Adm'r,  24  Ky.  L.  R.  1867,  72  S.  W. 
762;  Standard  Life  &  Ace.  Ins.  Co.  v.  Hollo- 
way,  24  Ky.  L.  R.  1856,  72  S.  "W.  796)  are  no 
part  of  the  res  gestae.  But  threatening 
language  by  a  carrier's  employe  immediately 
after  an  assault  by  him  on  a  passenger  is 
admissible — Shaefer  v.  Missouri  R.  Co.  (Mo. 
App.)    72  S.  W.   154. 

E^mployes.  Statement  of  conductor  coming 
to  the  scene  of  the  accident  immediately 
after  it  occurred  as  to  the  cause  thereof 
(Kansas  City  Southern  R.  Co.  v.  Moles  [C.  C. 
A.]  121  Fed.  351)  declarations  as  to  cause  of 
accident  immediately  afterward  (Union  Cas- 
ualty &  Surety  Co.  v.  Mondy  [Colo.]  71  Pac. 
677;  Early's  Adm'r  v.  Louisville  R.  Co.,  24 
Ky.  L.  R.  1807,  72  S.  W.  348)  declarations 
by  a  superintendent  while  examining  into 
the  cause  of  an  accident  (Roberts  v.  Port 
Blakely  Mill  Co.,  30  "Wash.  25,  70  Pac.  Ill) 
of  a  ship  captain  immediately  after  an  acci- 
dent on  board  (Lambert  v.  La  Conner  Trad- 
ing &  Transp.  Co.,  30  Wash.  346,  70  Pac.  960) 
declarations  of  an  employe  while  in  the  act 
of  endeavoring  to  rescue  deceased  (Hupfer  v. 
National  Distilling  Co.  [Wis.]  96  N.  W.  809) 
a  declaration  of  a  motorman  while  alighting 
immediately  after  a  collision,  "that  comes 
of  running  without  a  headlight"  (Ensley  v. 
Detroit  United  R.  [Mich.]  96  N.  W.  34)  an  ex- 
clamation by  a  brakeman  immediately  on 
discovering  that  he  had  closed  the  car  door 
on  plaintiff's  hand  (Trumbull  v.  Donahue 
[Colo.  App.]  72  Pac.  684)  have  been  held  part 
of  the  res  gestae.  But  statement  of  motor- 
man  Immediately  after  running  over  a 
child  that  he  was  looking  in  another  direc- 
tion (Koenlg  V.  Union  Depot  R.  Co.  [Mo.]  73 
S.  W.  637)  declaration  of  an  employe  an  hour 
(Leonard  v.  Mallory,  75  Conn.  433)  or  half 
an  hour  after   an   accident   as   to   the   cause 


thereof  (Briggs  v.  East  Broad  Top  R.  & 
Coal  Co.  [Pa.]  56  Atl.  36)  statement  of 
agent  the  day  after  the  transaction  in  ques- 
tion (Helm  v.  Missouri  R.  Co.  [Mo.  App.] 
72  S.  W.  148)  statement  of  motorman  after 
accident  that  he  "could  not  help  it"  (Rogers 
V.  Interurban  St.  Ry.  Co.,  84  N.  Y.  Supp. 
974)  statements  by  employes  as  to  cause 
of  fire  made  after  it  was  over  (Marande  v. 
Texas  R.  Co.  [C.  C.  A.]  124  Fed.  42)  re- 
fusal of  conductor  to  stop  the  car  after  an 
accident  (Gotwald  v.  St.  Louis  Transit  Co. 
[Mo.  App.]  77  S.  W.  125)  and  statements 
by  manager  after  accident  in  response  to 
inquiry  by  injured  man  (Luman  v.  Golden 
Ancient  Channel  Min.  Co.  [Cal.]  74  Pac.  307) 
have  been  excluded. 

Injured  person.  Declarations  as  to  cause 
of  accident  by  injured  person  immediately 
afterward  (Sutcliffe  v.  Iowa  State  Traveling 
Men's  Ass'n  [Iowa]  93  N.  W.  90;  Scheir  v. 
Quirin.  77  App.  Div.  [N.  Y.]  624;  Missouri, 
etc.,  R.  Co.  V.  Schilling  [Tex.  Civ.  App.]  75  S. 
W.  64)  Immediately  on  regaining  conscious- 
ness (Ft.  Worth,  etc.,  R.  Co.  v.  Partin  [Tex. 
Civ.  App.]  76  S.  W.  236)  or  two  minutes  aft- 
erward (Murray  v.  Boston  &  M.  R.  [N.  H.]  54 
Atl.  289)  have  been  admitted.  But  state- 
ments of  collateral  circumstances  immedi- 
ately afterward  (Bumgardner  v.  Southern  R. 
Co.  [N.  C]  43  S.  B.  948)  and  declarations  one 
minute  afterward  (Pledger  v.  Chicago  R.  Co. 
[Neb.]  95  N.  W.  1057)  ten  minutes  afterward 
(Missouri,  etc.,  R.  Co.  v.  Tarwater  [Tex.  Civ. 
App.]  75  S.  W.  937)  statements  several  hours 
afterward  (McCowen  v.  Gulf  R.  Co.  [Tex. 
Civ.  App.]  73  S.  W.  46)  narration  of  Injury 
long  after  (Tenney  v.  Rapid  City  [S.  D.]  96 
N.  W.  96;  Hicks  v.  Galveston  R.  Co.  [Tex. 
Civ.  App.]  71  S.  W.  322)  and  a  deliberate  nar- 
ration to  one  called  by  the  injured  person 
because  "he  wanted  to  make  a  statement" 
(Atchison,  etc.,  R.  Co.  v.  Logan,  65  Kan.  748, 
70  Pac.   878)    have  been  excluded. 

Complaints  of  present  suffering:  are  admis- 
sible (Hamilton  v.  Mendota  Coal  &  Min.  Co. 
[Iowa]  94  N.  W.  282;  Gosa  v.  Southern  R. 
[S.  C]  45  S.  E.  810;  Indiana  R.  Co.  v.  Maurer 
[Ind.]  66  N.  E.  156;  Styles  v.  Decatur  [Mich.] 
91  N.  W.  622;  Oliver  v.  Columbia  R.  Co.,  65  S. 
C.  1;  Hicks  v.  Galveston  R.  Co.  [Tex.  Civ. 
App.]  71  S.  T^^  322;  St.  Louis,  etc.,  R.  Co.  v. 
Brown  [Tex.  Civ.  App.]  69  S.  W.  1010;  Ar- 
lington V.  Texas  R.  Co.  [Tex.  Civ.  App.]  70  S. 
W.  551;  Bredeau  v.  Town  of  York,  115  Wis. 
544)  as  are  statements  to  physician  for  the 
purpose  of  receiving  treatment  are  admis- 
sible (Sellman  v.  Wheeler,  95  Md.  751.  But 
see  International,  etc.,  R.  Co.  v.  Boykin  [Tex. 
Civ.  App.]  74  S.  W.  93)  but  not  statements 
for  the  purpose  of  enabling  him  to  testify — 
Chicago,  etc.,  R.  Co.  v.  Donworth,  203  111. 
192. 

10.  Only  admissibility  as  original  evi- 
dence is  included.  Admissions  and  declara- 
tions for  the  purpose  of  Impeaching  a  wit- 
ness whose  testimony  is  inconsistent  there- 
with are   treated   in  Witnesses. 

11.  Declarations  of  strangers  against  a 
party's  interest  not  admissible — Mizell  v. 
Travelers'   Ins.   Co.    (Fla.)    33   So.    454. 


§  60 


ADMISSIONS   OR  DECLARATIONS, 


1151 


privity  with  him,*"  and  against  his  interest/'  and  such  admissions  are  original  evi- 


13.  Persons  Jointly  Interested.  Where 
persons  have  a  joint  interest  in  property  the 
admissions  of  one  are  ordinarily  admissible 
against  all  in  actions  relating  thereto — Sey- 
mour V.  Richardson  Fueling  Co.,  103  111.  App. 
€25.  Joint  legatees  are  in  privity  within 
this  rule  (Gibson  v.  Sutton,  24  Ky.  L.  R. 
S68,  70  S.  W.  188;  Wall  v.  Dimmitt,  24  Ky. 
L.  R.  1749,  72  S.  W.  300)  as  are  joint  re- 
ceivers (Shirk  V.  Brookfield,  77  App.  Div. 
[N.  Y.]  295)  and  joint  administrators 
Crouse  v.  Judson,  41  Misc.  [N.  Y.]  338)  but 
not  joint  trustee  (Belding  v.  Archer,  131 
N.  C.  287)  codefendants  (Finelite  v.  Son- 
berg,  75  App.  Div.  [N.  Y.]  455,  12  Ann.  Cas. 
1;  Shannon  v.  Castner,  21  Pa.  Super.  Ct.  294) 
tenants  in  common  (Naul  v.  Naul,  75  App. 
Div.  [N.  Y.]  292)  or  connecting  carriers — 
Thyll  V.  New  York  R.  Co.,  84  N.  Y.  Supp.  175. 

Privity  of  title.  Declarations  made  after 
parting  with  possession  by  grantor  (Hol- 
ton  V.  Dunker,  198  111.  407;  Adair  v.  Craig, 
135  Ala.  332;  Ikard  v.  Minter  [Ind.  T.]  69 
S.  W.  852;  Ellis  v.  Newell  [Iowa]  94  N.  W. 
463;  Pfeffer  v.  Kling,  171  N.  Y.  668;  Mc- 
Knight  v.  Reed  [Tex.  Civ.  App.]  71  S.  W. 
318),  or  mortgagor  (Newgass  v.  Auburn 
Loan  Co.,  81  App.  Div.  [N.  Y.]  411),  or  by  a 
seller  of  chattels  (Moravec  v.  Grell,  78  App. 
Div.  [N.  Y.]  146.  12  Ann.  Cas.  294;  Wooley 
V.  Bell  [Tex.  Civ.  App.]  76  S.  W.  797),  or 
chattel  mortgagor  (Meyer  v.  Munro  [Idaho] 
71  Pac.  969;  Ward  v.  Johnson  [Kan.]  72 
Pac.  242),  are  not  admissible  against  the 
grantee  or  mortgagee.  Declarations  by  a 
•dowress  in  possession  are  not  admissible 
against  the  holder  of  the  fee — Maraman  v. 
Troutman,  24  Ky.  L.  R.  1539,  71  S.  W.  861. 
To  make  declarations  of  a  grantor  as  to 
fraudulent  intent  admissible  against  the 
grantee,  prima  facie  evidence  of  fraud  must 
be  first  given — Moore  v.  Robinson  (Tex.  Civ. 
App.)    75  S.  W.  890. 

Agents  and  Employes.  Declarations  of 
agents  and  employes  must  be  made  while 
they  are  In  the  employ  of  the  principal 
(American  Copper,  etc.,  W^orks  v.  Galland- 
Burke  Brew.  Co.,  30  Wash.  178,  70  Pac.  236; 
Loving  V.  Hesperian  Cattle  Co.  [Mo.]  75 
S.  W.  1095;  Small  v.  McGovern  [Wis.]  94 
N.  W.  651)  within  the  scope  of  their  au- 
thority (Leary  v.  Albany  Brew.  Co.,  77 
App.  Div.  [N.  Y.]  6;  Hill  v.  Bank  of  Seneca 
[Mo.  App.]  73  S.  W.  307;  Gulf,  etc.,  R. 
Co.  V.  Irvine  [Tex.  Civ.  App.]  73  S.  W.  540; 
Huebner  v.  Erie  R.  Co.  [N.  J.  Err.  &  App.] 
55  Atl.  273),  and  statements  as  to  a  con- 
tract by  an  agent  who  had  nothing  to  do 
w^ith  making  the  same  (Wallingford  v.  Alt- 
kins,  24  Ky.  L.  R.  1995,  72  S.  W.  794)  are 
inadmissible.  Thus  the  manager  of  ranch 
having  nothing  to  do  with  sales  cannot 
bind  employer  by  admissions  as  to  condition 
of  goods  sold — Peterson  v.  Mineral  King 
Fruit  Co.  (Cal.)  74  Pac.  162.  To  bind  the 
employer,  the  declarations  must  be  made  in 
the  course  of  the  performance  of  a  duty, 
-subsequent  narrations  not  being  admissible — 
National  Bank  v.  Byrnes,  82  N.  Y.  Supp.  497; 
King  V.  Phoenix  Ins.  Co.  (Mo.  App.)  76  S. 
W.  55.  To  be  admissible  against  his  prin- 
cipal, the  declarations  of  an  agent  must  have 
been  made  (1)  In  respect  to  a  matter  with- 
in the  scope  of  his  authority  (2)  In  reference 
to    the    subject    matter    of    his    agency    (3J 


while  actually  engaged  In  the  transaction 
and  as  part  of  the  res  gestae  thereof — 
Cooper  Grocer  Co.  v.  Britton  (Tex.  Civ. 
App.)  74  S.  W.  91.  In  North  Carolina  the 
entire  doctrine  that  an  admission  of  an 
agent  not  part  of  the  res  gestae  is  admis- 
sible against  the  principal  is  denied — Mc- 
Entyre  v.  Levi  Cotton  Mills  Co.,  132  N.  C. 
598.  Authority  of  an  agent  cannot  be  proved 
by  his  own  declarations — Orange  Belt  R. 
Co.  V.  Cox  (Fla.)  33  So.  403;  Currie  v.  Syn- 
dicate Des  Cultivators,  104  111.  App.  165; 
Parker  v.  Brown,  131  N.  C.  264;  Dyer  v. 
Winston  (Tex.  Civ.  App.)  77  S.  W.  227.  Evi- 
dence of  a  shipper  that  he  had  always  paid 
the  freight  to  a  certain  person  is  insufficient 
to  show  that  he  is  authorized  to  bind  the 
carrier  by  declarations  as  to  shipments — 
Helm  V.  Missouri  Pac.  R.  Co.  (Mo.  App.)  72 
S.  W.  148.  Proof  of  agency  of  insurance 
adjuster  Insufficient — Legnard  v.  Standard 
Life  &  Ace.  Ins.  Co.,  81  App.  Div,  (N.  Y.) 
320.  Admission  by  teamster  as  to  condition 
of  goods  delivered  to  him  held  unauthorized 
— Sibley  Warehouse  &  Storage  Co.  v.  Durand 
&  Kasper  Co.,  200  111.  354. 

Corporate  officers  and  agent.  A  corpora- 
tion Is  bound  to  the  same  extent  as 
an  Individual  by  the  authorized  declarations 
of  Its  agents — Ulysses  Elgin  Butter  Co.  v. 
Hartford  Fire  Ins.  Co.,  20  Pa.  Super. 
Ct.  384;  Lipscomb  v.  South  Bound  R.  Co., 
65  S.  C.  148.  Statements  of  selling  agents 
held  admissible  to  show  combination  of 
corporations  to  fix  prices — State  v.  Ar- 
mour Packing  Co.,  173  Mo.  356.  But  not 
by  declarations  outside  the  agent's  duty — 
Harper  v.  Western  Union  Tel.  Co.,  92  Mo. 
App.  304.  Thus  statements  by  a  street  rail- 
road official  about  the  safety  of  a  coupling 
device  (Hayzel  v.  Columbia  R.  Co.,  19  App. 
D.  C.  359),  of  a  corporate  officer  present  at 
the  test  of  a  machine  to  be  purchased  by 
the  corporation  (Haney-Campbell  Co.  v. 
Preston  Creamery  Ass'n  [Iowa]  93  N.  W. 
297;  Allington  &  C.  Mfg.  Co.  v.  Detroit 
Reduction  Co.  [Mich.]  95  N.  W.  562),  ad- 
missions by  corporate  officers  as  to  previ- 
ous decisions  of  the  board  of  directors  or 
trustees  (Central  Elec.  Co.  v.  Sprague  Elec. 
Co.  [C.  C.  A.]  120  Fed.  925),  and  a  letter 
written  by  a  bank  president  as  a  personal 
communication  (Utica  City  Nat.  Bank  v.  Tall- 
man,  172  N.  Y.  642)  have  been  excluded.  But 
statements  of  the  officer  who  ertiployed  a 
clerk  as  to  his  compensation  (Meislahn  v. 
Irving  Nat.  Bank,  172  N.  Y.  631),  and  direc- 
tions by  the  conductor  to  a  passenger  as  to 
the  length  of  time  the  train  would  stop 
(Chicago  &  A.  R.  Co.  v.  Gore,  202  111.  188; 
Childs  v.  Ponder,  117  Ga.  553),  and  to  board 
a  moving  train  (Chicago  &  A.  R.  Co.  v.  Gore, 
202  111.  188;  Chicago  &  A.  R.  Co.  v.  Flaherty, 
202  111.  151)   are  admissible. 

Public  officer.  An  admission  by  one  who 
had  been  a  public  officer  of  the  receipt  of  a 
paper  during  his  term  of  office  Is  admissible 
igainst  the  city — South  Omaha  v.  Wrzensins- 
ki  (Neb.)  92  N.  W.  1045.  Reports  by  a  po- 
liceman of  facts  not  within  his  personal 
knowledge  are  Inadmissible  against  the  city 
— Sterling  v.  Detroit  (Mich.)  95  N.  W.  986. 

Insured  and  Beneficiary.  Admissions  by 
an  insured  are  not  admissible  against  the 
beneficiary — Sutcliffe  v.  Iowa  State  Traveling 


1152 


EVIDENCE. 


§   bC 


dence  and  no  foundation  need  be  laid.^*     The  rule  includes  not  only  declarations 
in  ordinary  conversation  but  admissions  implied  from  acquiescence  by  silence  to 


Men's  Ass'n  (Iowa)  93  N.  W.  90.  But  see 
(CaUies  v.  Modern  Woodmen  of  America  [Mo. 
App.]  72  S.  W.  713)  and  it  is  otherwise  where 
the  insured  retains  the  right  to  change  the 
beneficiary  at  will— Foxhever  v.  Order  of 
Red  Cross,  24  Ohio  Circ.  R.  56.  Nor  are  the 
admissions  of  a  local  lodge  of  a  fraternal  or- 
der which  under  its  bylaws  made  proofs  of 
loss  for  the  beneficiary  (Cox  v.  Royal  Tribe, 
42  Or.  365,  71  Pac.  73)  such  lodge  being  the 
agent  of  the  society — Patterson  v.  United  Ar- 
tisans (Or.)  72  Pac.  1095. 

Coconspirators.  Declarations  of  a  conspir- 
ator in  pursuance  of  the  common  purpose  are 
admissible  against  his  coconspirators — Con- 
necticut Mut.  Life  Ins.  Co.  v.  Hillmon,  188  U. 
S.  208,  47  Law.  Ed.  446;  Suttles  v.  Sewell,  117 
Ga  214;  Mosby  v.  McKee,  etc.,  Commission 
Co.,  91  Mo.  App.  500;  Cleland  v.  Anderson 
(Neb.)  92  N.  W.  306;  Cohn  v.  Saidel,  71  N.  H. 
558;  Congleton  v.  Schreihofer  (N.  J.  Eq.)  54 
Atl.  144;  Boyer  v.  Weimer,  204  Pa.  295;  Lash- 
er V.  Littell,  202  111.  551. 

As.si^nee  and  creditors.  Declarations  of  a 
trustee  for  creditors  as  to  the  purposes  of  the 
assignment  held  admissible  against  those 
claiming  under  the  assignment — Fourth  Nat. 
Bank  v.  Albaugh,  188  U.  S.  734,  47  Law.  Ed. 
673 

Guardian  and  ward.  Complaint  by  guardian 
ad  litem  for  accident  not  witnessed  by  him 
not  admissible  against  ward  in  subsequent 
proceeding — Shlotterer  v.  Brooklyn  &  N.  Y. 
Ferry  Co.,  75  App.  Div.  (N.  Y.)   330. 

Husband  and  wife.  Declarations  of  hus- 
band are  not  admissible  against  wife  as  to 
property  in  respect  to  which  they  claim  ad- 
versely— Vermillion  v.  Parsons  (Mo.  App.)  73 
S.  W.  994.  And  declarations  by  a  husband  in 
respect  to  the  wife's  business  or  property  are 
not  admissible  against  her  unless  it  is  shown 
that  he  was  specially  authorized — Montgom- 
ery V.  Mann  (Iowa)  94  N.  W.  1109;  Winans  v. 
Demarest.  84  N.  Y.  Supp.  504. 

Principal  and  Surety.  Declarations  of 
principal  in  fidelity  bond  while  in  the  per- 
formance of  his  guaranteed  duties  is  admis- 
sible against  the  surety — Guarantee  Co.  v. 
Phenix  Ins.  Co.  (C.  C.  A.)  124  Fed.  170. 

Deceased  and  heir,  legatee  or  personal  rep- 
resentative. Admissible  against  heirs — Deu- 
terman  v.  Ruppel,  103  111.  App.  106.  But  the 
declarations  must  be  against  interest — John- 
son V.  Cole,  76  App.  Div.  (N.  Y.)  606.  Declar- 
ation against  interest  as  to  fact  of  partner- 
ship by  deceased  partner  admissible  against 
survivor — Card  v.  Moore,  173  N.  Y.  598.  Dec- 
larations of  deceased  trustee  admissible 
againts  beneficiary  as  to  ownership  of  secur- 
ities  Putnam  v.  Lincoln  Safe  Deposit  Co.,  39 

Misc.  (N.  Y.)  738.  Declaration  by  deceased 
donor  admissible  on  behalf  of  donee — Gross 
V.  Smith,  132  N.  C.  604.  Declarations  by  de- 
cedent are  not  admissible  against  an  heir 
as  to  the  existence  of  an  indebtedness — Pym 
V.  Pym  (Wis.)  96  N.  W.  429.  Declarations 
of  deceased  absolving  employer  from  negli- 
gence are  admissible  in  action  for  his  death 

Dixon    V.    Union    Iron    Works    (Minn.)     97 

N.  W.  375.  Declarations  of  ancestor  that 
he  held  land  in  trust  are  admissible  against 
his  heirs — McClellan  v.  Grant,  83  App.  Div. 
(N.  Y.)  599.  Declaration  by  deceased  gran- 
tor that  the  deed  was  not  fraudulent  is  ad- 


missible   against    his    heir    in    a    suit    to    set 
aside    tlie    deed — Donnelly   v.    Rees    (Cal.)    74 
Pac.  433.     Declarations  of  want  of  testamen- 
tary   capacity    made    by    a    sole    legatee    are 
admissible   against   the   will,    but    admissions 
by    one    legatee    are    not    admissible    against 
others— StuU   v.    Stull    (Neb.)    96    N.    W.    196. 
Admissibility  of  declarations  of  testamentary 
intent  on  issue  of  undue  influence  see  Wills. 
13.     As    a    general    proposition    any    state- 
ment   inconsistent    with    the    position    of    the 
party  in  the  action  in   which   it  is  offered  is 
against  his  interest.     Admission  of  purchase 
of  property  by  one  sued  for  price — Moore  v. 
Crosthwalt.     135    Ala.     272.       Declaration     of 
beneficiary  under  will  that  testator  was  In- 
competent— Lundy   v.    Lundy,    118    Iowa,    445. 
Declarations    of  intent   to    pay   a   member   of 
declarant's    family    for    domestic    services — • 
Tuohy  V.   Trail,   19  App.  D.   C.  79;   Bonebrake 
v.    Tauer    (Kan.)    72    Pac.    521.      Declarations 
of    insolvency — Quinby    v.    Ayres     (Neb.)     95 
N.    W.    464.      Declarations    of    agent    that    he 
had    no    authority    to    make    a    contract    in 
i  suit  against  him  personally  thereon — Ander- 
son    V.     Adams     (Or.)     74     Pac.     215.     State- 
ment that  plaintiff's  services  were  to  be  paid 
for    by    another    than    defendant — Wright    v. 
Reed.     118    Iowa,    333.      Admission    that    the 
claim    sued    on    had    been    settled — Upton    v. 
Adeline  Sugar  Factory  Co.,  109  La.   670.     Ad- 
missions by  plaintiff  of  truth  of  alleged  libel 
— Davis    v.    Hamilton,    88    Minn.    64.      Admis- 
sions   as    to    the    purpose    for    which    stock 
was  transferred — Collins  v.  IMcGuire,  76  App. 
Div.    (N.    Y.)    443.     Declarations   of   owner   as 
to    value    of    property — Houston    v.    Western 
R.    Co.,    204    Pa.    321.      Statements    by   benefi- 
ciary  of   insurance  policy   that  insured  com- 
mitted suicide — Voelkel  v.  Supreme  Tent,  K. 
of    M.     (Wis.)     92    N.    W.    1104,    1135.      As    to 
amount  of  property  tending  to  show  that  an 
assignment   for   the  benefit   of  creditors   was 
fraudulent — Armour    v.    Doig     (Fla.)     34    So. 
249.      Tax    returns    are    admissible    to    show 
falsity    of    representations    as    to    property — 
Mashburn  v.   Dannenberg  Co.    (Ga.)    44   S.   E. 
97. 

Self  servins  declarations  Inadmissible — 
Stockley  v.  Cissna  (C.  C.  A.)  119  Fed.  812; 
-Work  V.  Kinney  (Idaho)  71  Pac.  477;  Ed- 
wards V.  Bates  County,  117  Fed.  526;  Du- 
vall  V.  Hambleton  &  Co.  (Md.)  55  Atl.  431; 
McNicol  V.  Collins,  30  Wash.  318,  70  Pac. 
753;  National  Lumberman's  Bank  v.  INIiller 
(Mich.)  91  N.  W.  1024;  Healy  v.  Malcolm,  77 
App.  Div.  (N.  Y.)  69.  Report  of  accident  by 
street  railroad  employe — West  Chicago  St. 
R.  Co.  V.  Lieserowitz.  197  111.  607.  Pleading 
in  another  action — Bennett  v.  City  of  Marion 
(Iowa)  93  N.  W.  558.  Statement  as  to  acci- 
dent delayed  until  witnesses  were  present — - 
Atchison,  etc.  R.  Co.  v.  Logan,  65  Kan.  748. 
70  Pac.  878.  Declarations  of  husband  that 
transfer  by  him  to  wife  was  not  gift  but 
trust — Johnson  v.  Johnson.  96  Md.  144.  Mem- 
orandum discharging  broker  not  communi- 
cated to  him  inadmissible  for  principal — 
Diamond  v.  Wheeler,  80  App.  Div.  (N.  Y.) 
58.  As  to  title  to  land — Ratliff  v.  Ratllff, 
131  N.  C.  425.  Declaration  of  seller  that  he 
intended  to  make  delivery — Price  v.  Bench, 
20  Pa.  Super.  Ct.  291.  Declaration  of  the 
maker   of   a    note    that   he    owed    part    of   the 


§  7A 


DOCUMENTARY  EVIDENCE. 


1153 


statements  made  in  the  party's  presence/"*  and,  of  course,  admissions  in  the  course 
of  judicial  proceedings,^**  and  in  hooks  of  account.^^  Subsequent  repairs  are  some- 
times urged  as  an  implied  admission  of  negligence,  but  as  such  evidence  is  usually 
excluded  on  grounds  of  relevancy,  it  is  elsewhere  treated. ^^  For  reasons  of  public 
policy,  offers  of  compromise  are  not  admissible  as  implied  admissions,^"  though  ex- 
press admissions  of  fact  therein  are  competent.'" 

§  7.  Documentary  evidence}'^  A.  General  rules — Private  writings. — Con- 
tracts, conveyances,  and  correspondence  between  the  parties  are  admissible  if  their 
contents  is  material,  but  there  must  be  preliminary  proof  of  their  execution  and 
authenticity  f^  proof  of  handwriting  or  that  the  letter  or  telegram  was  part  of  a  reg- 


amount  thereof  held  self  serving — Luke  v. 
Koenen  (Iowa)  94  N.  W.  278.  Declarations 
of  insured  that  policy  was  In  force — New 
York  Life  Ins.  Co.  v.  Johnson's  Adm'r,  24 
Ky.  L.  R.  1867,  72  S.  W.  762.  A  sale  of  prop- 
erty as  chattels  pending  a  proceeding  to 
subject  them  to  a  mortgage  as  fixtures  held 
self  serving — Lord  v.  Detroit  Sav.  Bank 
(Mich.)  93  N.  W.  1063.  Declarations  tending 
to  excuse  declarant  from  contributory  negli- 
gence— Over  V.  Missouri  R.  Co.  (Tex.  Civ. 
App.)  73  S.  W.  535.  Self  serving  declarations 
In  a  will  not  admissible  In  favor  of  the  es- 
tate— Bennett's  Estate  v.  Taylor  (Neb.)  96 
N.  "W.  669. 

14.  Moore  v.  Crosthwalt,  135  Ala.  272; 
Second  Borrowers  &  Investors  Bldg.  Ass'n 
V.  Cochrane,  103  111.  App.  29;  Dunafon  v. 
Barber    (Neb.)    92    N.    W.    198. 

15.  Silence  when  charged  with  acts  con- 
stituting contributory  negligence — Holston 
v.  Southern  R.  Co.,  116  Ga.  656;  Givens  v. 
Louisville  R.  Co..  24  Ky.  L.  R.  1796,  72  S. 
W.  320.  But  the  silence  of  one  suffering 
from  recent  Injuries  is  not  to  be  construed 
as  an  admission — Schilling  v.  Union  R.  Co., 
77  App.  Div.  (N.  Y.)  74.  Failure  to  contra- 
dict a  statement  made  by  a  witness  at  a 
former  trial  Is  not  to  be  construed  as  an 
admission  of  its  truth — Horan  v.  Byrnes  (N. 
H.)  64  Atl.  945.  Declarations  made  in  the 
presence  of  the  adverse  party  are  not  ad- 
missible unless  It  appears  that  he  heard 
them — Piatt  v.  Hollands,  85  App.  Div.  (N. 
Y.)    231. 

16.  In  pleadings — Younglove  v.  Knox 
(Fla.)  33  So.  427;  Tague  v.  Caplice  (Mont.) 
72  Pac.  297;  Seymour  v.  Richardson  Fueling 
Co..  103  111.  App.  625;  Houston,  etc.,  R.  Co. 
V.  De  Walt  (Tex.)  70  S.  W.  531.  An  aban- 
doned pleading  referred  to  In  a  substitute 
is  admissible  for  admissions  against  inter- 
est therein — Orange  Rice  Mill  Co.  v.  Mcll- 
hinney  (Tex.  Civ.  App.)  77  S.  W.  428. 

In  motion  papers — Fidelity  &  Casualty  Co. 
v.  Brown   (Ind.  T.)   69  S.  W.  915. 

In  affidavits — Cornelissen  v.  Ort  (Mich.)  93 
N.  W.  617. 

In  previous  testimony — Rosenfeld  v.  Sieg- 
fried, 91  Mo.  App.  169;  Congleton  v.  Schrei- 
hofer  (N.  J.  Eq.)  54  Atl.  144;  Sternbach  v. 
Friedman,  75  App.  Div.  (N.  Y.)  418;  Egyptian 
Flag  Cigarette  Co.  v.  Comisky,  40  Misc.  (N. 
Y.)  236.  A  deposition  of  a  party  though  filed 
too  late  may  be  used  by  the  adverse  party 
as  an  admission — Profile  &  F.  Hotels  Co. 
V.  Bickford   (N.   H.)    54  Atl.   699. 

17.  Entries  against  interest  in  account 
books  may  be  introduced  as  admissions — 
Kent  V.  Richardson  (Idaho)  71  Pac.  117;  Sec- 
ond Borrowers  &  Investors  Bldg.  Ass'n  v. 
Cochrane,    103    111.    App.    29. 

Curr.  Law — 73. 


18.  See   §  2,   ante. 

19.  Kelly  v.  Strouse,  116  Ga.  872;  lOg- 
gins  V.  Shepard,  182  Mass.  364.  But  merely 
saying  "Let  us  settle  up  this  matter"  Is 
not  an  offer  of  compromise — Collins  v.  Mc- 
Guire,  76  App.  Div.  (N.  Y.)  443.  Nor  is  the 
filing  of  a  written  claim  for  damages — Ft. 
Worth,  etc.,  R.  Co.  v.  Lock  (Tex.  Civ.  App.) 
70  S.  W.  456;  St.  Louis  S.  W.  R.  Co.  v.  Smith 
(Tex.  Civ.  App.)  77  S.  W.  28.  Offer  to  pur- 
chase outstanding  title  admissible — Hughes 
V.  Rowan,  27  Mont.  500,  71  Pac.  764.  Offer 
by  defendant  In  bastardy  proceedings  to 
pay  for  an  abortion  Is  not  an  offer  of  com- 
promise— Gatzmeyer  v.  Peterson  (Neb.)  94 
N.  W.  974.  Letter  seeking  to  procure  an 
adjustment  of  dispute  not  admissible — Hal- 
stead  V.  Coen  (Ind.  App.)  67  N.  E.  957.  But 
It  has  been  held  that  negotiations  looking  to 
ascertainment  of  amount  due  are  admissi- 
ble between  the  parties  for  admissions  there- 
in contained — Hunter  v.  Helsley,  98  Mo. 
App.  616.  An  amicable  adjustment  Is  not  as 
to  third  persons  an  admission  by  either  party 
— Crelghton  v.  Chicago  R.  Co.  (Neb.)  94  N.  W. 
527. 

20.  Offers  of  compromise  are  not  admis- 
sible unless  they  contain  admissions  of  fact, 
and  a  proposition  to  settle  "our  affair"  and 
stating  that  plaintiff  should  be  paid  but  not 
stating  for  what  Is  not  an  admission  of  fact 
within  this  rule — Rudd  v.  Dewey  (Iowa)  96 
N.  W.  973. 

21.  Only  the  admissibility  of  documents 
as  such  is  here  treated.  Questions  of  the 
competency  and  relevancy  of  facts  are  treat- 
ed under  the  various  rules  of  evidence  irre- 
spective of  whetlier  they  are  shown  by  oral 
or  documentary  evidence. 

22.  Peycke  v.  Shinn  (Neb.)  94  N.  W.  135; 
Hugumln  v.  Hinds,  97  Mo.  App.  346;  Nye 
v.  Daniels,  75  Vt.  81;  Baum  v.  Rainbow 
Smelting  Co.,  42  Or.  453,  71  Pac.  538;  Brinkley 
V.  Smith,  131  N.  C.  130.  Burns'  Rev.  St.  1901,  § 
486,  provides  that  if  inspection  of  a  material 
writing  is  given  before  trial  with  notice  of 
Intent  to  Introduce  the  same,  proof  of  execu- 
tion Is  unnecessary  unless  denied  by  affi- 
davit, and  this  Includes  all  papers  material 
as  evidence  and  not  merely  those  on  which 
the  suit  Is  founded — Boseker  v.  Chamber- 
lain (Ind.)  66  N.  E.  448.  Admission  of  con- 
tract without  production  of  subscribing  wit- 
nesses held  proper — National  Computing 
Scale  Co.  v.  Eaves,  116  Ga,  511.  Where  the 
writer  of  a  letter  denies  the  genuineness  of 
a  postscript.  It  is  not  admissible  without 
proof  of  authenticity — Love  v.  Love,  98  Mo. 
App.  562.  Authentication  of  Insurance  pol- 
icy by  circumstances  held  sufficient — Price 
V.  Garvin  (Tex.  Civ.  App.)  69  S.  W.  985.  A 
telegram     must    be    authenticated    by    some 


1154 


EVIDENCE. 


§  7A 


ular  course  of  correspondence  being  sufficient/^  and  where  the  signature  is  of  one 
as  a  corporate  officer,  his  authority  must  be  shown.^*  Formal  execution  and  ac- 
knowledgment are  usually  held  to  dispense  with  proof  of  execution,-^  and  proof  of 
execution  is  unnecessary  as  to  ancient  documents.-®  Interlineations  and  alterations 
apparent  on  the  face  of  the  writing  must  be  shown  to  have  been  made  before  exe- 
cution.^^    Mere  private  memoranda  are  inadmissible.^^ 

Photographs  and  drawings  are  usually  admissible,^*  as  are  the  standard  mor- 
tality tables,^"     Printed  books  as  a  rule  are  not.'^ 


proof  of  genuineness — Reynolds  v.  Hinrlchs 
(S.  D.)   94  N.  W.  694;  Peycke  v.  Shinn  (Neb.) 

94  N.  W.   135. 

23.  A  telegram  in  answer  to  one  shown 
by  the  evidence  is  admissible  without  fur- 
ther proof — People  v.  Hammond  (Mich.)  93 
N.  W.  1084.  Testimony  of  a  son  of  the  signer 
that  it  looked  like  his  father's  signature 
but  he  could  not  tell  is  insufficient — Farrell 
V.  Manhattan  R.  Co.,  83  App.  Div.  (N.  Y.) 
393.  A  letter  must  be  identified  by  proof 
either  of  the  handwriting  or  that  It  was 
received  in  answer  to  previous  letters — 
Whitwell  v.  Johnson  (Neb.)  96  N.  W.  272. 
Where  a  letter  is  signed  with  a  rubber 
stamp,  there  must  be  evidence  as  to  who 
affixed  the  same — Reynolds  v.  Phillips  (Neb.) 

95  N.  W.  491.  Testimony  that  the  letter 
was  on  the  stationery  of  a  party  and  signed 
in  the  same  way  as  other  letters  received 
In  regular  course  of  correspondence  is  suf- 
ficient to  identify  a  letter  signed  with  a 
rubber  stamp — Price  v.  Oatman  (Tex.  Civ. 
App.)    77   S.   W.    258. 

24.  Where  a  document  is  signed  by  one 
as  officer  of  a  corporation  there  must  be 
proof  of  his  authority  (Coney  Island  Auto- 
mobile Race  Co.  v.  Boyton,  87  App.  Div.  [N. 
Y.]  251)  though  written  on  the  letter  head 
of  a  corporate  officer  (Wickham  v.  Lehigh 
Valley  R.  Co.,  85  App.  Div.  [N.  Y.]  182)  and 
It  must  be  shown  that  a  corporate  seal  was 
affixed  with  authority  where  it  appears  that 
the  seal  was  accessible  to  unauthorized  per- 
sons— Quackenboss  v.  Globe  &  R.  Fire  Ins. 
Co.,  77  App.  Div.  (N.  Y.)  168.  But  in  Mon- 
tana it  has  been  held  that  authority  of  cor- 
porate officers  to  execute  a  contract  will  be 
presumed — Tague  v.  Caplice  (Mont.)  72  Pac. 
297. 

25.  Brown  v.  Collins  (Neb.)  96  N.  W.  173; 
McKenzie  v.  Beaumont  (Neb.)  97  N.  W.  225.  A 
conditional  bill  of  sale,  duly  attested  and  re- 
corded is  admissible  under  the  same  rules  as 
govern  registered  rnortgages — Anderson  v. 
Leverette,  116  Ga.  732.  Probate  of  a  deed  in 
another  state  which  does  not  identify  the 
deed  in  question  as  the  one  which  the  wit- 
nesses saw  signed  is  insufficient  and  is  not 
aided  by  a  certificate  of  the  clerk  of  court 
that  the  probate  is  sufficient — Brinkley  v. 
Smith,  131  N.  C.  130.  Where  the  execution 
of  a  bond  (Craw  v.  Abrams  [Neb.]  94  N.  W. 
639),  or  deed  (Williamson  v.  Gore  [Tex.  Civ. 
App.]  73  S.  W.  563)  is  denied  there  must  be 
affirmative  proof  of  execution.  Execution 
of  a  bond  for  title  must  be  proved  though  it 
has  been  recorded — Burkhart  v.  Loughridge 
(Ky.)    76  S.  W.   397. 

See  article  on  Acknowledgments  for  neces- 
sity and  sufficiency  of  acknowledgment  to 
admit  conveyance  in  evidence. 

2«.  Kimball  v.  Morris  (Tex.  Civ.  App.) 
71   S.   W.    759;   Bradley   v.   Lightcap,    201    111. 


511.  Possession  of  property  by  grantee  is 
not  necessary  to  the  admission  of  an  ancient 
deed — Hodge  v.  Palms  (C.  C.  A.)  117  Fed.  396. 
And  an  ancient  notarial  copy  of  an  act  of 
sale  stands  on  the  same  footing  as  the  orig- 
inal— Hodge  V.  Palms  (C.  C.  A.)  117  Fed. 
396.  Plan  and  report  of  railroad  company 
filed  under  the  chartering  act  many  years 
before  is  admissible  without  proof  of  the 
authority  of  the  persons  signing  as  execu- 
tive committee — MacDonald  v.  New  York, 
etc.,   R.   Co..   25  R.   I.  40. 

27.  Landt  v.  McCullough,  103  111.  App. 
668;  Rambousek  v.  Supreme  Council  (Iowa> 
93  N.  W.  277;  Consumers'  Ice  Co.  v.  Jen- 
nings (Va.)  42  S.  E.  879.  Died-Long  v. 
Stanley,  79  Miss.  298;  Landt  v.  McCullough, 
103  111.  App.  668;  Rambousek  v.  Supreme 
Council  (Iowa)  93  N.  W.  277;  Holladay-Klotz 
Land  Co.  v.  Moss  Tie  Co.,  87  Mo.  App.  167. 

28.  Turner  v.  Cochran  (Tex.  Civ.  App.) 
70  S.  W.  1024.  Ancient  memorandum  as  to 
adverse  possession  admitted — Hamerschlag 
V.   Duryea,    172  N.  Y.   622. 

29.  X-ray  photographs  are  admissible  for 
the  purpose  of  showing  the  condition  of  in- 
ternal tissues  of  the  body — City  of  Geneva 
V.  Burnett  (Neb.)  91  N.  W.  275.  Photographs 
of  place  of  accident,  shown  to  be  accurate, 
are  admissible — Sterling  v.  Detroit  (Mich.) 
95  N.  W.  986.  Must  be  identified  as  photo- 
graph of  locality  in  question — Smart  v.  Kan- 
sas City,  91  Mo.  App.  586.  Photographs  tak- 
en after  the  events  in  issue,  if  it  appears 
that  the  situation  of  the  premises  has  not 
changed — Chicago  &  A.  R.  Co.  v.  Corson,  198 
111.  98:  Robinson  v.  St.  Joseph,  97  Mo.  App. 
503;  Leeds  v.  New  York  Tel.  Co.,  79  App. 
Div.  (N.  Y.)  121.  Where  it  appears  that  a 
photograph  (in  this  case  an  X-ray  photo- 
graph) truly  represents  the  object  In  ques- 
tion, it  is  not  necessary  to  show  that  it  was 
taken  by  a  skilled  photographer — Carlson  v. 
Benton  (Neb.)  92  N.  W.  600.  And  a  photo- 
graph taken  by  an  eye  witness  of  the  acci- 
dent in  controversy  may  be  admitted  in 
connection  with  his  testimony  though  he  is 
unskilled  in  photography — McGovern  y. 
Smith,  75  Vt.  104.  Evidence  of  one  familiar 
with  the  person  represented  that  the  photo- 
graph is  a  good  likeness  dispenses  with  the 
necessity  of  authentication  by  the  photog- 
rapher— Stiasny  v.  Metropolitan  St.  R.  Co., 
172  N.  Y.  656.  A  map  made  from  notes 
whose  correctness  is  not  shown  cannot  be 
received — Hays  v.  Ison,  24  Ky.  L.  R.  1947, 
72  S.  W.  733.  It  is  in  the  discretion  of  the 
court  to  allow  a  witness  to  produce  a  sketch 
to  illustrate  his  testimony — Chicago  v.  L« 
Moyne  (C.  C.  A.)  119  Fed.  662.  A  photo- 
graph of  a  hall  where  an  accident^  is  admis- 
sible to  show  the  situation  of  the  premises 
though  the  alleged  negligence  is  insuffi- 
cient  lighting   which   the    photographer   does 


7B 


BOOKS  OF  ACCOUNT. 


1155 


The  provision  of  the  war  revenue  act  of  1898  excluding  documents  not  hearing 
revenue  stamps  required  by  that  act  is  applicable  only  to  federal  courts."- 

(§7)  B.  Books  of  account. — Books  of  account  are  admissible  as  admissions 
against  interest,^^  and  are  admissible  in  favor  of  the  person  keeping  the  same  when 
the  entries  are  made  in  the  ordinary  course  of  business,  contemporaneously  with  the 
transaction  in  question  and  by  an  authorized  person.^*  The  shop  book  riile  extends 
only  to  books  of  a  party j^''  and  the  rule  obtains  generally  that  cash  entries  are  ad- 
missible only  when  small  amounts  are  involved.^®  There  must  be  preliminary  proof 
of  the  identity  and  genuineness  of  the  books  offered/^  and  of  the  facts  necessary  to 
render  them  admissible  in  evidence.^^ 


not    show — Bretsch    v.    Plate,    82    App.    Div. 
(N.  Y.)    399. 

30.  Galveston,  etc.,  R.  Co.  v.  Mortson 
(Tex.  Civ.  App.)  71  S.  W.  770;  Galveston,  etc., 
R.  Co.  V.  Hubbard  (Tex.  Civ.  App.)  70  S. 
W.  112;  San  Antonio  &  A.  P.  R.  Co.  v. 
Moore  (Tex.  Civ.  App.)  72  S.  W.  226;  Coffey- 
ville  Min.  &  Gas  Co.  v.  Carter,  65  Kan.  565, 
70  Pac.  635.  The  Carlisle  mortality  tables 
are  admissible  without  preliminary  proof  of 
correctness  or  identity — Atlanta  Ry.  &  Pow- 
er Co.  V.  Monk  (Ga.)  45  S.  E.  494.  As  are 
the  Northarrriton  tables — Banta  v.  Banta,  84 
App.  Div.  (N.  T.)  138.  One  relying  on  the 
mortality  tables  must  show  that  deceased 
was  of  the  class  of  sound  and  healthy  per- 
sons on  which  the  tables  are  based — Vicks- 
burg  R..  Power  &  Mfg.  Co.  v.  White  (Miss.) 
34  So.   331. 

31.  Scientific  book — McEvoy  v.  Lommel, 
78  App.  Div.  (N.  Y.)  324.  Private  catalogue 
of  horse  dealer  not  admissible  as  pedigree 
record — Louisville  &  N.  R.  Co.  v.  Frazee,  24 
Ky.  L.  R.  1273.  71  S.  "W.  437.  Proof  of  for- 
eign law  by  printed  volume  of  statutes,  see 
5  ?.  c.  post. 

32.  Davis  V.  Evans  (N.  C.)  45  S.  E.  643; 
Plerpont  v.  Johnson,  104  111.  App.  27;  Dil- 
lingham V.  Parks,  30  Ind.  App.  61;  State  v. 
Glucose  Sugar  Refining  Co.,  117  Iowa,  524; 
Ratliff  V.  Ratliff,  131  N.  C.  425;  Foster  v.  Pa- 
cific  Clipper  Line,   30  Wash.   515,   71   Pac.    48. 

S.?.  Kent  V.  Richardson  (Idaho)  71  Pac. 
117;  Second  Borrowers'  &  Investors'  Bldg. 
Ass'n  V.  Cochrane,  103  111.  App.  29.  Entry 
of  payments  on  debtor  books  as  evidence  to 
avoid  bar  of  limitations — Kirkpatrick  v. 
Goldsmith.  81  App.  Div.   (N.  Y.)   265. 

34.  Duty  v.  Storrs  (Tex.  Civ.  App.)  70  S. 
W.  357.  Books  of  original  entry.  Entries 
must  be  contemporaneous — Wells  v.  Hobson. 
91  Mo.  App.  379.  Where  the  book  of  original 
entry  is  destroyed  a  ledger  is  admissible — 
Burr  V.  Shute,  24  Ohio  Clrc.  R.  62.  On  an 
issue  as  to  solvency  in  general  a  cash  book 
made  up  from  memoranda  and  not  verified 
by  testimony  of  the  bookkeeper  is  admissi- 
ble to  show  the  general  nature  and  extent 
of  the  business — Kuh  v.  Glucklick  (Iowa)  94 
N.  W.  1105.  The  appearance  of  the  account 
in  question  and  other  entries  in  the  book 
may  be  considered  in  determining  the  ad- 
missibility of  the  book — Holden  v.  Spier.  65 
Kan.  412.  70  Pac.  348.  Book  held  admissible 
tv-hen  made  from  contemporaneous  memoran- 
da, and  the  person  making  the  memoranda 
testified  to  their  general  correctness — Bloom- 
ington  Min.  Co.  v.  Brooklyn  Hygienic  Ice  Co., 
171  N.  Y.  673. 

Data  from  -which  mnde.  Entries  made 
from    information    telephoned    to   bookkeeper 


held  not  admissible — Rathborne  v.  Hatch, 
80  App.  Div.  (N.  Y.)  115.  Entries  made 
from  weight  slips  held  admissible — Bloora- 
ington  Min.  Co.  v.  Brooklyn  Hygienic 
Ice  Co.,  171  N.  Y.  673.  Where  the  person 
making  the  entries  testifies  that  they  were 
made  at  the  time  from  his  personal  knowl- 
edge the  book  is  admissible — Alabama  Const. 
Co.  V.  Wagnon  (Ala.)  34  So.  352.  Books 
made  up  from  memoranda  furnished  to  the 
bookkeeper  held  not  admissible  without  tes- 
timony as  to  the  correctness  of  the  memo- 
randa— Trainor  v.  German-American  Sav. 
Loan  &  Bldg.  Ass'n   (111.)  68  N.  E.  650. 

Usual  course  of  business.  Book  entries 
of  money  not  being  customary  are  not  ad- 
missible— Rothschild  v.  Sessell,  103  111.  App. 
274.  Mere  memoranda  (Hottle  v.  Weaver 
[Pa.]  55  Atl.  838)  such  as  a  memorandum  of 
date  of  execution  of  contract  (Tobler  v.  Aus- 
tin [Tex.  Civ.  App.]  71  S.  W.  407).  pencil 
memorandum  on  books  of  bank  as  to  name 
of  transferee  of  a  certain  pledge  (Rankin  v. 
Fidelity  Ins.,  Trust  &  Safe  Deposit  Co.,  189 
U.  S.  242)  or  of  delivery  of  deed  (Lloyd  v. 
?:imor..=;  [Minn.]  95  N.  W.  903)  are  not  admis- 
sible, nor  are  entry  of  payments  in  books 
of  mortgagor — Rarden  v.  Cunningham,  136 
Ala.  263.  Or  maker  of  note — Gregory  v. 
Jones   (Mo.  App.)    73  S.  W.  899. 

Non-commercial  books.  Register  kept  at 
hospital  inadmissible  to  show  entries  as  to 
symptoms  and  condition  of  patient — Price  v. 
Standard  Life  &  Ace.  Ins.  Co.  (Minn.)  95  N 
W.  1118. 

Copies  of  corporate  books.  Burns'  Rev.  St. 
§  474,  providing  that  corporate  acts  may  be 
proved  by  a  sworn  copy  of  the  record  does 
not  allow  a  sworn  copy  of  a  corporate  book 
of  account  to  be  introduced — Coppes  v.  Union 
Nat.  Sav.  &  Loan  Ass'n  (Ind.  App.)  67  N.  B. 
1022. 

35.  Books  kept  by  an  agent  of  his  own 
business  are  not  admissible  on  behalf  of 
the  principal — Rathborne  v.  Hatch,  80  App. 
Div.  (N.  Y.)  115;  McKeen  v.  Providence 
County  Sav.  Bank  (R.  I.)   54  Atl.  49. 

36.  See  Davis  v.  Sanford,  9  AUen  (Mass.) 
216;  Bustin  v.  Rogers,  11  Cush.  (Mass.)  346; 
Silver  v.  Worcester,  72  Me.  322.  Rev.  St. 
1898,  §  4187,  makes  inadmissible  books  con- 
taining cash  items  exceeding  $5.00 — Brown 
V.    Warner    (Wis.)    93    N.    W.    17. 

37.  Wilson  v.  Morse,   117  Iowa,   581. 

38.  Wimmer  v.  Key  (Minn.)  92  N.  W. 
228.  Account  book  not  verified  in  manner 
prescribed  by  Rev.  St.  1898,  §  4186,  is  not 
admissible — Brown  v.  Warner  (Wis.)  93  N. 
W.  17.  Accounts  with  other  persons  cannot 
be  introduced  as  corroboration — Gregory  v. 
Jones   (Mo.  App.)   73  S.  W.  899.     A  book  kept 


1156 


EVIDENCE. 


§   7C 


(§  7)  C.  Public  and  judicial  records  and  documents. — Public  and  judicial 
records  and  documents  are  admissible  in  evidence,^^  and  in  view  of  the  public  in- 
convenience resulting  from  use  of  the  originals  in  evidence,  certified  copies  are  al- 
most universally  authorized  by  statute.*** 


by  one  who  is  the  joint  agent  of  the  parties 
is  admissible  against  either — Copeland  v. 
Boston  Dairy  Co.  (Mass.)  68  N.  B.  218. 

39.  A  record  book  prepared  by  the  gen- 
eral land  office  as  a  substitute  for  one  de- 
stroved  in  a  local  office  is  admissible  as  an 
original— Jess6  D.  Carr  Land  &  Live  Stock 
Co.  V.  United  States  (C.  C.  A.)  118  Fed.  821. 
Original  declaration  of  homestead  (Smith 
V  Vevsey.  30  Wash.  18,  70  Pac.  94)  and  tax 
roll  (Smith  v.  Scully  [Kan.]  71  Pac.  249)  are 
admissible.  Tract  book  of  land  office  is 
prima  facie  evidence  that  lands  therein  list- 
ed are  public — Jesse  D.  Carr  Land  &  Live 
Stock  Co.  V.  United  States  (C.  C.  A.)  118 
Fed.  821.  Record  of  survey  admissible  un- 
der How.  Ann.  St  §  619  though  it  is  recorded 
on  two  pages  if  they  are  shown  to  be  con- 
nected— Sherrard  v.  Cudney  (Mich.)  96  N. 
"W.  15.  Report  of  commission  to  define  coun- 
ty boundaries  inadmissible  without  proof  of 
appointment  and  authority  of  commissioners 
— Daniel  v.  Bailey  (Ga.)  45  S.  E.  379.  Records 
of  United  States  weather  bureau  are  admis- 
sible in  evidence  (Nolt  v.  Crow,  22  Pa.  Super. 
Ct.  113)  without  the  testimony  of  the  offi- 
cer keeping  the  same — Scott  v.  Astoria  R. 
Co.  (Or.)  72  Pac.  594.  Health  board  record 
of  vital  statistics  is  not  admissible — Beglin 
V.  Metropolitan  Life  Ins.  Co.,  173  N.  T.  374. 
Nor  is  school  census  admissible  to  show  age 
of  person  listed  therein — Edwards  v.  Logan, 
24  Ky.  L.  R.  1099,  70  S.  W.  852.  The  fact 
that  an  original  marriage  license  is  in  the 
hands  of  a  private  person  who  does  not  ac- 
count for  his  possession  thereof  does  not 
render  it  Inadmissible — State  v.  Pendleton 
(Kan.)  72  Pac.  527. 

Certificates.  Certificate  of  officer  admissi- 
ble when  so  declared  by  statute — Robles  v. 
Cooksey  (Tex.  Civ.  App.)  70  S.  W.  584.  A  cer- 
tificate of  death  made  in  pursuance  of  statute 
is  admissible — Ohmeyer  v.  Supreme  Forest 
Woodmen  Circle.  91  Mo.  App.  189.  There  is 
no  authority  for  the  admission  of  a  clerk's 
certificate  to  the  non-existence  of  a  fact — 
Boyd  V.  Chicago,  etc..  R.  Co.,  103  111.  App.  199. 
A  statement  of  the  account  of  a  public  of- 
ficer from  the  books  of  the  treasury  depart- 
ment and  properly  certified  is  admissible — 
Laffan  v.  United  States  (C.  C.  A.)  122  Fed. 
333. 

Statutes  and  ordinances.  Municipal  ordi- 
nances may  be  proved  by  the  certificate  of 
the  city  clerk  (Florida  Cent.  &  P.  R.  Co.  v. 
Seymour  [Fla.]  33  So.  424)  as  may  the  publi- 
cation of  an  ordinance  (Hazen  v.  Mathews 
[Mass.]  68  N.  E.  838)  and  by  a  printed  cer- 
tificate of  the  clerk  to  a  compilation — Chica- 
go &  E.  I.  R.  Co.  V.  Beaver,  199  111.  34.  But  the 
non-existence  of  an  ordinance  on  a  particular 
subject  cannot  be  proved  by  certificate  of 
the  clerk — Boyd  v.  Chicago,  etc.,  R.  Co..  103 
111.  App.  199.  The  record  book  of  the  secre- 
tary of  the  council  Is  admissible  to  prove  an 
ordinance  without  proof  that  its  keeping  was 
authorized  by  the  act  of  Incorporation — Mc- 
Caffrey V.  Thomas  (Del.)  56  Atl.  382.  Min- 
utes of  council  proceedings  held  sufficiently 
authenticated  by  testimony  of  city  clerk- 
State   V.    Badger,    90    Mo.    App.    183.      Printed 


volumes  of  laws  of  another  state  do  not 
prove  themselves — Hewitt  v.  Bank  of  Indian 
Territory  (Neb.)  92  N.  "W.  741.  Copies  of 
English  statutes  authenticated  by  testimony 
of  English  attorney  admissible — Nasliua  Sav. 
Bank  v.  Anglo-American  Land,  etc.,  Co.,  189 
U.  S.   221. 

Judicial  proceedings.  Pleadings  (Church 
V.  Pearne,  76  Conn.  350)  and  decrees 
are  admissible — Alexander  v.  Grand  Lodge, 
A.  O.  U.  W.  (Iowa)  93  N.  W.  508.  Judgment 
is  admissible  though  rehearing  in  appellate 
court  is  pending — Salt  Lake  City  Water  & 
Electrical  Power  Co.  v.  Salt  Lake  City,  25 
Utah,  441,  71  Pac.  1067.  But  the  judgment  of 
a  justice  of  the  peace  must  be  authenticatec! 
by  proof  of  his  handwriting — Patterson  v. 
Freeman,  132  N.  C.  357.  Judicial  opinions 
(Work  V.  Kinney  [Idaho]  71  Pac.  477)  or 
transcripts  of  evidence  (Walker  v.  Walker, 
117  Iowa,  609)  are  not  admissible;  and  a  cor- 
oner's inquest  is  not  a  judicial  proceeding  sO' 
as  to  be  admissible  In  evidence — Cox  v.  Royal 
Tribe,  42  Or.  365,  71  Pac.  73.  Order  admitting- 
will  to  probate  held  sufficient  to  admit  will 
in  evidence — Turner  v.  Hause,  199  111.  :;64. 
The  manner  of  proving  testimony  on  a  for- 
mer trial  Is  discussed  in  §  8,  post;  the  admis- 
sibility of  testimony  and  proceedings  as  ad- 
missions against  Interest  in  §  6C,  ante. 

40.  A  certificate  of  the  rendition  of  a 
judgment  summarizing  Its  terms  is  not  ad- 
missible as  a  certified  copy  thereof — United 
States  V.  Lew  Poy  Dew,  119  Fed.  786.  But 
a  certificate  embodying  the  judgment  has 
been  held  a  sufficient  certified  copy  thereof — 
Kentucky  Land,  etc.,  Co.  v.  Crabtree,  24  Ky. 
L.  R.  743.  70  S.  W.  31.  Certified  copy  of  com- 
missioner's deed  held  admissible  without 
proof  of  the  judgment  authorizing  it — Helton 
V.  Belcher,  24  Ky.  L.  R.  927,  70  S.  W.  295. 
The  bond  of  a  constable  required  to  be  re- 
corded in  the  county  court  Is  a  "judicial  rec- 
ord" and  accordingly  the  seal  of  the  court  is 
essential  to  a  certified  copy  thereof — Morgan 
v.  Betterton,  109  Tenn.  84.  And  where  such 
bonds  are  required  to  be  filed  with  the  coun- 
ty clerk  they  are  records  of  his  office  and 
may  be  proved  by  his  certificate — State  v. 
Yourex,  30  Wash.  611,  71  Pac.  203.  Certified 
copy  of  foreign  grant — Hollifield  v.  Landrum 
(Tex.  Civ.  App.)  71  S.  W.  979.  Certified  cop- 
ies which  have  been  recorded  under  Rev.  St. 
art.  4642,  providing  that  a  deed  may  be  re- 
corded in  any  county  and  a  certified  copy  of 
such  record  recorded  elsewhere  are  admissi- 
ble— Moody  v.  Ogden  (Tex.  Civ.  App.)  72  S. 
W.  253;  Logan's  Heirs  v.  Logan  (Tex.  Civ. 
App.)  72  S.  W.  416.  A  certified  copy  of  an 
adjudication  of  bankruptcy  in  federal  court 
Is  fvdmissible  in  a  state  court — Rosenfeld  v. 
Siegfried,  91  Mo.  App.  169.  Certified  copies. 
of  tax  collector's  delinquent  list  held  admis- 
sible— Davis  v.  Pacific  Imp.  Co.,  137  Cal.  245, 
70  Pac.  15.  Copy  of  school  warrant  Is  prop- 
erly certified  by  the  auditor — Mitchelltree 
School  Tp.  V.  Hall  (Ind.  App.)  68  N.  B.  919. 
Certified  copy  of  assessment  roll  admlssiblo 
IS  "public  record"  (Rev.  St.  art.  2305) — 
Brummer  v.  Galveston  (Tex.  Civ.  App.)  77  S 
W.    239.      Judicial    record    authenticated    ac- 


§  9A 


EXPERT  AND  OPINION. 


1157 


(§7)  D.  Proceedings  to  procure  production  of  documents.*^ — The  customary 
process  to  procure  production  of  documents  at  the  trial  is  the  subpoena  duces  tecum,*' 
and  in  case  of  documents  in  the  possession  of  third  persons  this  is  the  only  available 
remedy,  but  the  court  will  frequently,  by  order  in  the  course  of  the  trial,  require 
a  party  to  produce  papers.*'  The  books  of  a  going  concern  needed  in  its  business 
should  not  be  required  to  be  left  in  court." 

§  8.  Evidence  adduced  in  former  proceedings.*^ — Statutes  in  many  states  pro- 
vide that  where  a  witness  who  testified  on  a  former  trial  of  the  action  is  dead  or 
beyond  the  jurisdiction,  his  testimony  at  the  former  trial  may  be  introduced.*® 
Evidence  at  a  former  trial  may  be  proved  by  any  person  who  heard  it,*^  by  the  notes 
of  the  court  stenographer  if  supported  by  his  testimony  to  their  correctness,*^  or 
by  the  return  or  bill  of  exceptions  on  appeal  when  certified  by  the  court,*'*  or  sup- 
ported by  the  testimony  of  the  stenographer."" 

§  9.  Expert  arid  opinion  evidence.  A.  Conclusions  and  nonexpert  opinions. 
— As  a  general  rule,  it  is  improper  for  a  witness  to  state  a  mere  conclusion,  whether 
the  same  be  of  law  or  by  way  of  inference  from  facts,"^  and  on  matters  which  are 


cording  to  the  statute  is  admissible  without 
proof  that  the  court  is  one  of  record — Brown 
V.  Collins  (Neb.)  96  N.  W.  173.  A  certified 
copy  of  a  county  map  from  the  office  of  tlie 
secretary  of  state  is  admissible  without  pre- 
liminary proof — Berry  v.  Clark,  117  Ga.  964. 
Under  the  act  of  Congress  judicial  records 
must  have  certificate  of  judge  showing  that 
he  is  commissioned  and  qualified — Taylor  v. 
McKee  (Ga.)  45  S.  E.  672.  Authentication  of 
English  court  record  held  sufficient — Linton 
V.  Baker  (Neb.)  96  N.  W.  251.  A  transcript  of 
a  Federal  judgment  in  the  same  state  is  ad- 
missible If  certified  by  the  clerk  though  not 
bv  the  judge — Allison  v.  Robinson,  136  Ala. 
434. 

41.  Notices  to  produce  documents,  as  lay- 
ing a  foundation  for  secondary  evidence  are 
treated  in  §  4,  ante,  while  proceedings  to  pro- 
cure inspection  of  documents  before  trial  are 
discussed  in  Discovery  and  Inspection. 

42.  Plaintiff  in  action  for  newspaper  libel 
is  entitled  to  subpoena  duces  tecum  for  the 
mailing  and  subscription  lists — Palmer  v. 
Mahin  (C.  C.  A.)  120  Fed.  737.  A  preliminary 
showing  that  the  documents  are  pertinent  to 
the  issue  is  usually  required  (Prac.  Act,  §  12) 
— Bentley  v.  People,  104  111.  App.  353.  An  at- 
torney for  a  party  may  be  required  by  sub- 
poena duces  tecum  to  produce  a  lease  in  his 
possession — Jones  v.  Reilly,  174  N.  Y.  97. 

43.  Rarden  v.  Cunningham,  136  Ala.  263; 
Neukirch  v.  Keppler,  174  N.  T.  509.  It  must 
appear  that  the  documents  are  material — 
Buckl  &  Son  Lumber  Co.  v.  Atlantic  Lumber 
Co.    (C.  C.  A.)   121  Fed.  233. 

44.  In  re  Randall,  87  App.  Dlv.   (N.  Y.)  245. 

45.  Includes  only  use  thereof  in  lieu  of 
appearance  of  witness,  former  testimony  as 
an  admission  against  Interest  being  discussed 
in  §  6C,  ante,  and  use  thereof  for  impeach- 
ment in  Witnesses. 

46.  Sievers-Carson  Hardware  Co.  v.  Curd, 
24  Ky.  L.  R.  1317,  71  S.  W.  506;  Persons  v. 
Persons  (N.  D.)  97  N.  W.  551.  Testimony  of 
witness  beyond  the  jurisdiction  admitted 
though  no  effort  was  made  to  procure  his  at- 
tendance— INIcGovern  v.  Smith,  75  Vt.  104. 
Testimony  before  referee  admitted  though 
the  reference  was  never  concluded  on  ac- 
count of  the  death  of  the  referee — Taft  v. 
Little,  78  App.  Div.   (N.  Y.)    74.     Evidence  of 


deceased  witness  in  action  between  other 
parties  is  not  admissible — Ellis  v.  Le  Bow 
(Tex.  Civ.  App.)  71  S.  W.  576.  Search  for 
missing  witness  held  sufficient  diligence — 
People  v.  McFarlane,  138  Cal.  481,  71  Pac.  568, 
72  Pac.  48;  People  v.  Witty,  138  Cal.  576,  72 
Pac.  177.  Evidence  that  a  witness  who  re- 
sided in  Mexico  was  seen  to  take  a  train 
presumably  bound  there  is  sufficient — State 
V.  Bolden,  109  La.  484.  Where  the  witness 
resided  within  the  state  and  where  his  depo- 
sition might  be  taken  though  beyond  the 
reach  of  process  to  compel  attendance  at  the 
trial,  his  testimony  at  a  former  trial  cannot 
be  read — Southern  Foundry  Co.  v.  Jennings 
(Ala.)  34  So.  1002. 

47.  Egyptian  Flag  Cigarette  Co.  v.  Comis- 
ky,  40  Misc.  (N.  Y.)   236. 

48.  Dady  v.  Condit.  104  111.  App.  507. 
But  not  unless  so  verified — Cerrusite  Min. 
Co.  V.  Steele  (Colo.  App.)  70  Pac.  1091. 
Transcript  certified  by  him,  not  being  admis- 
sible— Jordan  v.  Howe  (Neb.)  95  N.  W.  853. 

49.  Egyptian  Flag  Cigarette  Co.  v.  Comls- 
ky,  40  Misc.  (N.  Y.)  236.  Testimony  taken 
down  by  a  magistrate  but  not  certified  and 
the  magistrate  having  no  Independent  recol- 
lection in  respect  thereto  cannot  be  received 
— Gamblin  v.  State   (Miss.)    33  So.  724. 

50.  Smith  v.  Scully  (Klan.)  71  Pac.  249. 
But  it  has  been  said  that  this  practice, 
though  not  erroneous,  is  of  doubtful  pro- 
priety— Pittsburgh,  etc.,  R.  Co.  v.  Story,  104 
111.  App.  132. 

51.  Veum  v.  Sheeran,  88  Minn.  257;  Read 
V.  Valley  Land  &  Cattle  Co.  (Neb.)  92  N. 
W.  622.  Statements  held  conolnsions.  For 
whom  property  was  bought — Arnold  v.  Cofer, 
135  Ala.  364.  Whether.^  foreign  corporation 
was  doing  business  in  New  York — Huey  v. 
Rothfeld,  84  N.  Y.  Supp.  883.  Whether  an- 
other acted  in  good  faith — Durrence  v.  North- 
ern Nat.  Bank,  117  Ga.  3S5.  Whether  an  In- 
-^trument  was  a  bill  of  sale  or  a  mortgage — 
Stuart  V.  Mitchum,  135  Ala.  546.  As  to  the 
construction  of  a  written  contract — Indepen- 
dent School  Dist.  V.  Swearngln  (Iowa)  94  N. 
W.  206.  That  certain  improvements  were  in- 
tended to  be  provided  for  In  a  deed  of  trust 
— Martin  v.  Texas  Briquette  &  Coal  Co.  (Tex. 
Civ.  App.)  77  S.  W.  651.  That  a  balance  of  a 
certain    sum    was    due — Sniith    v.    Castle,    81 


1158 


EVIDENCE. 


8  9A 


the  subject  of  expert  testimony,  one  not  an  expert  cannot  express  an  opinion,'*  but 
certain  matters  are  regarded  as  so  far  within  the  common  knowledge  of  mankind 


App.  DIv.  (N.  T.)  638.  Whether  the  whole  of 
a  conversation  which  has  been  testified  to  is 
embodied  in  a  writing  before  the  court — 
Union  State  Banlc  v.  Hutton  (Neb.)  95  N.  W. 
1061.  Whether  the  conduct  of  parties  indi- 
cated a  family  relation  or  that  of  master  and 
servant — Bullard  v.  Laughlin  (Neb.)  96  N. 
W.  159.  Whether  a  road  was  public — Big 
Lake  Drainage  Dist.  Com'rs  v.  Commissioners 
of  Highways,  199  111.  132.  Whether  a  stream 
could  be  forded  without  difficulty  at  a  cer- 
tain place — Perry  v.  Clarke  County  (Iowa) 
94  N.  W.  454.  Whether  anything  occurred 
that  would  have  a  tendency  to  injure — Bir- 
mingham Ry.  &  Elec.  Co.  v.  Ellard,  135  Ala. 
433.  As  to  the  regularity  of  a  writ — Faville 
V.  State  Trust  Co.  (Iowa)  96  N.  V/.  1109.  Who 
waa  liable  for  a  doctor's  bill — Quincy  Gas  & 
Elec.  Co.  v.  Bauman.  104  111.  App.  600.  Who 
was  the  owner  of  property — Perkins  v. 
Knisely,  102  111.  App.  562.  That  plaintiff  was 
obliged  to  get  on  an  electric  car  track  in 
order  to  cross  a  railroad  track — Birmingham 
Ry.  &  Elec.  Co.  v.  Jackson,  136  Ala.  279.  The 
purpose  of  a  bill  of  sale — Emory  Mfg.  Co.  v. 
Rood,  182  Mass.  166.  Whether  book  entries 
showed  a  sale  or  a  discount — Black  v.  First 
Nat.  Bank,  96  Md.  399.  Whether  a  marriage 
was  according  to  Indian  custom — Henry  v. 
Taylor  (S.  D.)  93  N.  W.  641.  The  place  of 
delivery  under  a  contract — Althouse  v.  Mc- 
MiUan  (Mich.)  92  N.  W.  941.  Whether  mis- 
statements in  an  application  for  insurance 
were  material  to  the  risk — New  Era  Ass'n  v. 
Mactavish  (Mich.)  94  N.  W.  599.  Whether 
goods  ordered  by  a  party  were  of  the  kind 
needed  by  him — New  York  Cent.  Iron  Works 
Co.  V.  United  States  Radiator  Co.,  174  N.  Y. 
331.  Whether  a  publication  was  true — Davis 
V.  Hamilton,  88  Minn.  64.  Who  was  the  real 
party  in  interest — United  Press  v.  Abell,  79 
App.  Div.  (N.  Y.)  550.  Whether  acts  of  own- 
ership were  exercised — Red  River  Valley  Nat 
Bank  v.  Monson.  11  N.  D.  423.  Cause  of  In- 
Jury  to  cattle,  as  based  on  their  appearance 
— Louisville  &  N.  R.  Co.  v.  Landers,  135  Ala. 
504.  That  nothing  could  have  been  done  to 
avert  an  accident — Springfield  Consol.  R.  Co 
v.  Puntenney,  200  111.  9;  McGovern  v.  Smith, 
75  Vt.  104.  Whether  a  sidewalk  was  unsafe 
— Bradley  v.  City  of  Spickardsville,  90  Mo. 
App.  416;  Gordon  v.  Sullivan  (T\Ms.)  93  N.  W. 
457;  Metz  v.  Butte,  27  Mont.  506,  71  Pac.  761. 
Whether  Ice  on  a  sidewalk  was  formed  from 
water  from  a  certain  source — Wittman  v. 
New  York,  80  App.  Div.  (N.  Y.)  585.  Wheth- 
er an  accident  would  have  occurred  if  plain- 
tiff had  stopped  when  warned — Cosgrove  v. 
Metropolitan  St.  R.  Co..  173  N.  Y.  628.  Wheth- 
er a  tool  was  unfit  for  use — Nash  v.  Bowling, 
93  Mo.  App.  156.  Statements  held  of  fact. 
That  a  train  did  not  stop  long  enough  for 
witness  to  get  off — St.  Louis  S.  W.  R.  Co.  v. 
Byers  (Tex.  Civ.  App.)  70  S.  W.  558.  Wlieth- 
er  witness  had  anything  to  do  with  a  certain 
occurrence — Pittsburgh,  etc.,  R.  Co.  v.  Story, 
104  111.  App.  132.  That  a  person  came  in  re- 
sponse to  a  cry  for  help — Golibart  v.  Sulli- 
van, 30  Ind.  App.  428.  That  no  one  in  the 
car  with  witness  appeared  to  have  suffered 
Injury — Coldren  v.  Le  Gore,  US  Iowa,  212. 
What  was  the  habit  of  engineers  in  examin- 
ing the  engine  for  defects — Galveston,  etc., 
R.   Co.   V.   Collins    (Tex.   Civ.   App.)    71    S.   W. 


560.  Whether  a  car  step  was  too  high  for 
safety  in  alighting — International,  etc.,  R. 
Co.  V.  Clark  (Tex.  Civ.  App.)  71  S.  W.  587. 
That  one  was  in  possession  of  premises — 
Wright  v.  State,  136  Ala.  139.  That  a  ship- 
ment was  C.  O.  D. — Davidson  v.  State  (Tex. 
Cr.  App.)  73  S.  W.  80S.  Whether  in  a  certain 
contingency  a  party  would  have  been  able 
to  meet  his  obligations  as  they  arose — Buckl 
&  Son  Lumber  Co.  v.  Atlantic  Lumber  Co.  (C. 
C.  A.)  121  Fed.  233.  Whether  a  train  could 
be  seen  from  a  certain  point — Kansas  City, 
etc.,  R.  Co.  V.  Weeks  (Ala.)  34  So.  16.  That 
witness  suffered  pain  from  certain  organs — 
Sellman  v.  Wheeler,  95  Md.  751.  That  cer- 
tain injuries  incapacitated  one  from  follow- 
ing a  certain  occupation — St.  Louis  S.  W.  R. 
Co.  V.  McDowell  (Tex.  Civ.  App.)  73  S.  W. 
974.  That  witness  was  made  sick  by  certain 
gases  complained  of — Suddith  v.  Incorporated 
City  of  Boone  (lov/a)  96  N.  W.  853.  That  a 
ticket  agent  saw  the  children  for  whom  tick- 
ets were  purchased  is  a  statement  of  a  fact — 
International,  etc.,  R.  Co.  v.  Anchonda  (Tex. 
Civ.  App.)  75  S.  W.  557.  Whether  a  third  per. 
son  claimed  property — Rice  v.  Melott  (Tex. 
Civ.  App.)  74  S.  W.  935. 

Intent,  knoTvIedge  or  nnderstacdlns.  One 
may  testify  directly  as  to  his  own  Intent 
(Mayers  v.  McNeese  [Tex.  Civ.  App.]  71  S.  W. 
68;  Fox  V.  Robbins  [Tex.  Civ.  App.]  70  S.  W. 
597;  Fitzgibbon  v.  Chicago,  etc.,  R.  Co. 
[Iowa]  93  N.  W.  276;  Pardridge  v.  Cutler,  104 
111.  App.  89;  Warfield  v.  Clark,  118  Iowa,  69; 
Gray  v.  New  York  Cent.,  etc.,  R.  Co.,  77  App. 
Div.  [N.  Y.]  1)  or  as  to  his  reasons  for  cer- 
tain acts  (McCormick  Harvesting  Mach.  Co. 
V.  Hiatt  [Neb.]  95  N.  W.  627)  but  not  as  to 
the  intent  (McKnight  v.  Reed  [Tex.  Civ. 
App.]  71  S.  W.  SIS)  knowledge  of  others 
as  that  an  employe  was  familiar  with  the 
location  of  appliances  in  a  switch  yard  (In- 
ternational, etc.,  R.  Co.  V.  Bearden  [Tex.  Civ. 
App.]  71  S.  W.  318)  or  knowledge  of  others 
certain  fact  (Sheldon  v.  Bigelow,  118  Iowa, 
586)  whether  a  child  knew  the  danger  of 
crossing  railroad  tracks  (Over  v.  Missouri, 
etc.,  R.  Co.  [Tex.  Civ.  App.]  73  S.  W.  535) 
that  one  person  knew  that  another  claimed 
certain  land  (Ashford  v.  Ashford,  136  Ala. 
631)  whether  a  third  person  understood  cer- 
tain facts  (Piano  Mfg.  Co.  v.  Kautenberger 
[Iowa]  96  N.  W.  743)  or  the  reason  for  the 
conduct  of  another — Southern  R.  Co.  v.  Shel- 
ton,  136  Ala.  191;  Holmes  v.  State,  136  Ala. 
80.  But  statements  as  to  the  "understand- 
ing" of  the  parties  are  admissible  where  It  is 
obvious  that  "agreement"  is  meant — Mallory 
Crimmission  Co.  v.  Elwood  (Iowa)  96  N.  W. 
176,  And  it  has  been  held  that  a  witness 
may  testify  that  a  person  did  not  appear  to 
realize  that  there  was  danger  in  his  posi- 
tion— Fritz  V.  Western  Union  Tel.  Co.,  25 
Utah,  263,  71  Pac.  209. 

Computations.  An  accountant  may  state 
the  result  of  his  examination  of  a  long  ac- 
count— Rosenfeld  v.  Siegfried,  91  Mo.  App. 
169.  But  computations  are  not  admissible 
where  data  is  before  jury — Blauvelt  v.  Dela- 
ware, etc.,  R.  Co.  (Pa.)  55  Atl.  857. 

S2.  Whether  a  fire  could  have  been  stop- 
ped with  certain  appliances — Cumberland 
Tel.  Co.  v.  Dooley  (Tenn.)  72  S.  W.  457. 
Within  what  space  a  car  could  be  stopped — 


§  9B 


SUBJECTS   OF  EXPERT  TESTIMONY. 


1159 


that  special  qualification  is  not  necessary  to  entitle  a  witness  to  express  an  opinion 
thereon."  A  nonexpert  stating  an  opinion  under  this  rule  should  be  required  to 
state  with  it  the  facts  on  which  it  is  based." 

(§9)     B.  Subjects  of  expert  testimony.— An  expert  opinion  is  not  admissible 
as  to  the  ultimate  issue  to  be  found  by  the  jiirj/''^  nor  as  to  matters  as  to  which  men 


Bliss  V.  United  Traction  Co.,  75  App.  Div.  (N. 
Y.)  235.  Whether  car  could  have  been  stop- 
ped had  conductor  been  in  a  different  posi- 
tion— Von  Diest  v.  San  Antonio  Traction  Co. 
(Tex.  Civ.  App.)  77  S.  W.  632.  Technical 
meaning  of  a  word — Butte  &  B.  Consol.  Min. 
Co.  V.  Montana  Ore  Purchasing  Co.  (C.  C.  A.) 
121  Fed.  524.  Whether  a  grating  forming 
part  of  a  side  walk  was  heavy  enough — 
Lentz  V.  Dallas  (Tex.)  72  S.  W.  59.  Cause  of 
death  of  cattle — White  v.  Farmers'  Fire  Ins. 
Co.,  97  Mo.  App.  590;  Wilson  v.  Southern  R., 
65  S.  C.  421. 

53.  That  horse  tracks  indicated  that  the 
animal  was  running — Craig  v.  Wabash  R.  Co. 
(Iowa)  96  N.  W.  965.  A  witness  without  spe- 
cial knowledge  cannot  testify  to  effect  of 
piers  or  dams  on  flow  of  water — Jones  v. 
Seaboard  Air  Line  R.  Co.  (S.  C.)  45  S.  E.  188. 
Age — St.  Louis  S.  W.  R.  Co.  v.  Bowles  (Tex. 
Civ.  App.)  72  S.  W.  451;  Danley  v.  State  (Tex. 
Cr.  App.)  71  S.  W.  958;  Earl  v.  State  (Tex. 
Or.  App.)  72  S.  W.  175. 

Physical  condition — That  a  person  was 
suffering  pain — Chicago,  etc.,  R.  Co.  v.  Ran- 
dolph, 199  111.  126;  Isherwood  v.  Jenkins 
Lumber  Co..  87  Minn.  388.  That  a  person 
was  crippled  and  that  his  condition  had  not 
Improved — St.  Louis  S.  W.  R.  Co.  v.  Brown 
(Tex.  Civ.  App.)  69  S.  W.  1010.  That  an  ani- 
mal was  blind — Rarden  v.  Cunningham,  136 
Ala.  263.  But  not  cause  of  sleeplessness — 
Nichols  v.  Oregon  Short  Line  R.  Co.,  25  Utah, 
240.  70  Pac.   996. 

Intoxication — Marshall  v.  Riley,  38  Misc. 
(N.  Y.)  770;  League  v.  Ehmke  (Iowa)  94  N. 
W.  938. 

Mental  condition — One  well  acquainted  with 
a  person  may  express  an  opinion  as  to  his 
sanity — Higgins  v.  Nethery,  30  Wash.  239,  70 
Pac.  489;  Keegan  v.  Kane,  139  Cal.  123,  72 
Pac.  828;  Sheehan  v.  Allen  (Kan.)  74  Pac. 
245;  Halde  v.  Schultz  (S.  D.)  97  N.  W.  369; 
Wright  V.  Commonwealth,  24  Ky.  L.  R.  1838, 
72  S.  W.  340;  Scarborough  v.  Baskin,  65  S.  C. 
558.  But  not  a  casual  visitor — Apland  v.  Pott 
(S.  D.)  92  N.  W.  19;  Page  v.  Beach  (Mich.) 
95  N.  W.  981.  And  that  testator  was  easily 
influenced  (Michael  v.  Marshall,  201  111.  70) 
or  that  he  "acted  foolish"  ("U^allace  v.  Whit- 
man, 201  111.  59)  or  whether  testator  had  ca- 
pacity to  understand  will  is  improper — Baker 
V.  Baker,  202  111.  595. 

Value — Porter  v.  Hawkins,  27  Mont.  486, 
71  Pac.  664;  Ruckman  v.  Imbler  Lumber  Co., 
42  Or.  231,  70  Pac.  811;  Eckington.  etc.,  R.  Co. 
v.  McDevitt,  18  App.  D.  C.  497;  Houghtallng 
V.  Chicago  G.  W.  R.  Co.,  117  Iowa,  540; 
Chandler  v.  Parker,  65  Kan.  860,  70  Pac.  368; 
St.  Joseph,  etc.,  R.  Co.  v.  McCarty  (Neb.)  92 
N.  W.  750. 

Distance — San  Antonio,  etc.,  R.  Co.  v.  Grif- 
fith (Tex.  Civ.  App.)   70  S.  W.  438. 

Lapse  of  time — Atlanta,  etc.,  R.  Co.  v. 
Strickland,  116  Ga.  439. 

Speed  of  trains — Id.;  Flanagan  v.  New  York 
Cent.,  etc.,  R.  Co.,  173  N.  Y.  631;  Potter  v. 
O'Donnell,  199  111-  119:  Mathieson  v.  Omaha 
St.  R.  Co.   (Neb.)   92  N.  W.  639.     One  accus- 


tomed to  time  the  speed  of  cars  is  competent 
to  state  the  speed  of  a  car  on  which  he  was  a 
passenger— Fisher  v.  Union  Ry.  Co.,  86  App. 
Div.  (N.  Y.)  365.  Not  proper  where  witness 
can  form  no  opinion  except  from  the  result  of 
subsequent  calculation — Mathiesen  v.  Omaha 
St.  R.  Co.  (Neb.)  97  N.  W.  243.  One  having 
no  experience  in  running  street  cars  is  not 
competent  to  express  an  opinion  as  to  speed 
based  solely  on  the  noise  made  by  Its  move- 
ment— Campbell  v.  St.  Louis  &  S.  R.  Co.  (Mo.) 
75  S.  W.  86. 

Damages.  Party  cannot  estimate  amount 
of  his  damages — St.  Louis,  etc.,  R.  Co. 
V.  Hall  (Ark.)  74  S.  W.  293;  De  Wald  v. 
Ingle,  31  Wash.  616,  72  Pac.  469;  Tenney 
V.  Rapid  City  (S.  D.)  96  N.  W.  96.  Though  It 
is  otherwise  held  in  South  Carolina — Oliver 
V.  Columbia,  etc.,  R.  Co.,  65  S.  C.  1.  Nor  can 
a  nonexpert  third  person — Foote  v.  Malony 
115  Ga.  985. 

54.  Hawes  v.  Warren,  119  Fed.  978;  State 
V.  Barry,  11  N.  D.  428.  This  rule  has  been 
held  to  apply  to  an  opinion  as  to  sanity  by 
a  family  physician  who  has  treated  the  per- 
son for  other  diseases — Scott  v.  Hay  (Minn.) 
97  N.  W.  106.  Where  the  opinion  is  shown  to 
be  erroneous  by  the  facts  elicited  it  should 
be  stricken  out — Keating  v.  Cornell,  104  111. 
App.  448.  But  one  may  testify  that  a  person 
"appeared  despondent"  without  first  giving 
the  facts  on  which  the  statement  was  based 
— State  v.  McKnight  (Iowa)   93  N.  W.  63. 

55.  Read  V.  Valley  Land  &  Cattle'  Co. 
(Neb.)  92  N.  W.  622.  Whether  injuries  were 
inflicted  by  accident  or  with  suicidal  Intent 
— Treat  v.  Merchants'  Life  Ass'n,  198  111.  431. 
Whether  a  person  was  competent  to  transact 
ordinary  business  (McGibbons  v.  McGibbons 
[Iowa]  93  N.  W.  55)  the  amount  of  damages 
sustained  (Texas  &  P.  R.  Co.  v.  Cochrane 
[Tex.  Civ.  App.]  69  S.  W.  984)  are  improper. 
But  an  expert  has  been  allowed  to  state  that 
a  certain  article  resembled  or  was  an  imita- 
tion of  butter — State  v.  Ehinger,  67  Ohio  St.  51. 
Difference  In  value  of  property  before  and 
after  construction  of  railroad  "excluding  ben- 
efits and  Injuries  common  to  the  whole  com- 
munity" is  a  mixed  question  of  law  and  fact  and 
not  the  proper  subject  of  an  opinion — Boyer 
V.  St.  Louis,  etc.,  R.  Co.  (Tex.  Civ.  App.)  72 
S.  W.  1038.  Whether  it  was  safe  to  work  In 
a  certain  ditch  without  having  the  sides 
braced  is  not  proper — Sullivan  v.  Rome  86 
App.  Div.  (N.  Y.)  107.  Whether  a  person  had 
testamentary  capacity  is  not  proper — Page 
v.  Beach  (Mich.)  95  N.  W.  981.  Whether  the 
excessive  use  of  Intoxicants  is  a  "pernicious 

habit"  is  not  a  subject  of  expert  testimony 

Union  Life  Ins.  Co.  v.  Jameson  (Ind.  App  ) 
67  N.  B.  199.  Whether  It  was  necessary  for 
plaintiff's  Intestate  to  do  certain  acts  alleged 
to  constitute  contributory  negligence  im- 
proper— Chicago,  etc.,  R.  Co.  v.  Holmes  (Neb.) 
94  N.  W.  1007.  In  a  suit  for  nuisance  wheth- 
er filter  beds  would  be  of  benefit  to  plaintiff 
is  not  admissible,  though  the  general  effect 
thereof  would  be — Suddith  v.  Incorporated 
City  of  Boone  (Iowa)  96  N.  W.  853.     Whether 


1160 


EVIDENCE. 


§   9B 


of  common  understanding  are  equally  competent  to  form  a  judgment,"  but  as  to 
questions  other  than  the  ultimate  issue  whose  proper  understanding  calls  for  special 
knowledge  or  experience,  the  opinions  of  experts  may  be  admitted." 


a  building  was  In  substantial  compliance 
with  the  contract  for  its  erection  is  not  prop- 
er— Zimmerman  v.  Conrad  (Mo.  App.)  74  S. 
W.  139. 

56.  It  Is  not  enough  that  the  witness 
know  more  of  the  subject  than  the  jury,  but 
the  matter  in  question  must  pertain  to 
some  trade,  art.  or  science  so  that  persons 
versed  therein  may  be  supposed  to  have 
more  information  in  regard  thereto  than 
other  persons  of  average  intelligence — Caven 
V.  Bodwell  Granite  Co.,  97  Me.  381.  The  prop- 
er height  of  stakes  at  the  ends  of  a  car 
loaded  with  ties  is  not  a  matter  for  expert 
testimony — Kerrigan  v.  Market  St.  R.  Co., 
13S  Cal.  506,  71  Pac.  621.  The  dangers  of  a 
simple  piece  of  machinery — Edwards  v.  Bar- 
ber Asphalt  Pav.  Co.,  92  Mo.  App.  221. 
Whether  the  distance  run  by  a  car  after  an 
accident  indicated  that  brakes  were  not  set 
— Koenig  v.  Union  Depot  R.  Co.,  173  Mo.  698. 
The  proper  length  of  a  "push  stick" — Book- 
man V.  Masterson.  83  App.  Div.  (N.  T.)  4. 
Whether  an  obstruction  was  calculated  to 
frighten  horses — White  v.  Town  of  Cazeno- 
via,  77  App.  Div.  (N.  Y.)  547.  Whether  tele- 
graph poles  were  calculated  to  frighten 
horses — Missouri  &  K.  Tel.  Co.  v.  Vandevort 
(Kan.)  72  Pac.  771.  That  a  shooting  could 
not  have  been  accidental — Barnard  v.  State 
(Tex.  Cr.  App.)  73  S.  W.  957.  That  inspec- 
tion would  have  disclosed  a  defect  not  proper 
— Dittman  v.  Edison  Electric  Illuminating  Co., 
83  N.  Y.  Supp.  1078.  An  expert  railroad  man 
may  testify  that  a  defect  in  a  brakestaff  could 
have  been  discovered  by  inspection — Interna- 
tional, etc.,  R.  Co.  v.  Collins  (Tex.  Civ.  App.) 
75  S.  W.  814.  "U^here  the  facts  may  be  clearly 
shown  and  understood,  expert  opinions  are 
not  admissible — Sumner  v.  Sumner  (Ga.)  45 
S.  E.  5ff9.  Whether  a  hammer  was  a  safe  and 
proper  tool  Is  not — Vant  Hul  v.  Great  North- 
ern R.  Co.  (Minn.)  96  N.  W.  789;  Ft.  Pitt  Gas 
Co.  V.  Evansvllle  Contract  Co.  (C.  C.  A.)  123 
Fed.  63. 

57.  An  expert  may  testify  that  cattle  suf- 
fered no  more  from  being  left  in  the  cars 
than  they  would  from  being  unloaded  under 
existing  weather  conditions  (Southern  R.  Co. 
V.  Crowder,  135  Ala.  417)  as  to  the  neces- 
sity of  feeding  cattle  in  course  of  shipment 
(Gulf,  etc.,  R.  Co,  V.  Irvine  [Tex.  Civ.  App.] 
73  S.  W.  540)  as  to  the  probable  effect  of 
stagnant  pool  on  health  of  community 
(West  V.  State  [Ark.]  71  S.  W.  483)  as  to 
whether  bananas  would  decay  In  shipment 
between  two  certain  points  (Fruit  Dispatch 
Co.  V.  Murray  [Minn.]  96  N.  W.  83)  but  not 
as  to  whether  a  person  had  committed  sui- 
cide (Aetna  Life  Ins.  Co.  v.  Kaiser,  24  Ky. 
L.  R.  2454,  74  S.  W.  203)  as  to  the  effect  of 
pneumonia  on  testamentary  capacity  (Lorts 
v.  Wash  [Mo.]  75  S.  W.  95)  or  as  to  life  ex- 
pectancy— Hamilton  v.  Michigan  Cent.  R.  Co. 
(Mich.)  97  N.  W.  392. 

Disputed  handwriting — Roy  V.  First  Nat 
Bank  (Miss.)  33  So.  494.  A  statute  allowing: 
comparison  of  handwritings  does  not  permit 
an  opinion  that  certain  cancellation  marks 
through  a  signature  were  not  made  by  the 
person  who  wrote  the  signature — In  re  Hop- 
kins' W^ill.  172  N.  Y.  360,  12  Ann.  Cas.  55. 


Constmction  and  managrement  of  stmct- 
nres  and  appliances.  Proper  method  of 
loading  boilers  (Palmauist  v.  Mine  &  Smel- 
ter Supply  Co.,  25  Utah,  257,  70  Pac,  994); 
effect  of  loosening  certain  bolts  in  a 
passenger  elevator  (Slack  v.  Harris,  200 
111.  96);  whether  an  elevator  was  properly 
constructed  (Craig  v.  Benedictine  Sisters 
Hospital  Ass'n  [Minn.]  93  N.  W.  669);  wheth- 
er a  laundry  mangle  was  defective  (Coleman 
V.  Perry  [Mont.]  72  Pac.  42);  whether  a  fur- 
nace pit  -R'as  properly  constructed  (Behs- 
mann  v.  Waldo,  38  Misc.  [N.  Y.]  820);  prop- 
er means  of  guying  a  derrick  (Scheider  v. 
American  Bridge  Co.,  73  App.  Div.  [N.  Y.] 
163) ;  whether  a  certain  gasoline  engine 
was  liable  to  explode  (Charter  Gas-Engine 
Co.  V.  Kellam,  79  App.  Div.  [N.  Y.]  231); 
possibility  of  a  certain  construction  of  the 
hoist  in  a  mine  (Hedlun  v.  Holy  Terror 
Min.  Co.  [S.  D.]  92  N.  W.  31);  proper  method 
of  stringing  wire  In  proximity  of  a  live 
wire  (Fritz  v.  Western  Union  Tel.  Co.,  2a 
Utah.  263,  71  Pac.  209);  proper  manner  of 
securing  mine  roof  (People's  Gaslight  & 
Coke  Co.  v.  Porter,  102  111.  App.  461);  as 
to  whether  crossing  was  dangerous  (Sel- 
fred  V.  Pennsylvania  R.  Co.  [Pa.]  55  Atl. 
1061);  whether  a  structure  was  safe  with- 
in the  meaning  of  the  labor  law  (Jenks 
v.  Thompson,  83  App.  Div.  [N.  Y.]  343); 
whether  a  certain  Interior  construction  was 
safe  in  respect  to  Are  (Friedman  Co.  v.  Atlas 
Assur.  Co.  [Mich.]  94  N.  W.  757);  whether  an 
Iron  handle  was  properly  welded  (Murphy  v. 
Marston  Coal  Co.  [Mass.]  67  N.  E.  342)  have 
been  held  proper.  But  whether  a  plank 
would  If  sound  have  been  strong  enough  to 
support  a  man  Is  not  a  subject  of  expert  tes- 
timony— Cogdell  V.  Wilmington  &  W.  R.  Co., 
132  N.  C.  852. 

Disease  and  physical  injuries.  Whether 
condition  might  have  resulted  from  asphyx- 
iation Is  not  competent — Walden  v.  City 
of  Jamestown,  79  App.  Div.  (N.  Y.)  433, 
12  Ann.  Cas.  313.  But  it  has  been  held  prop- 
er to  allow  an  expert  to  testify  that  a  condi- 
tion could  have  been  caused  by  a  severe  con- 
tusion (Wagner  v.  Metropolitan  St.  R.  Co., 
79  App.  Div.  [N.  Y.]  591);  or  whether  certain 
injuries  could  have  been  produced  In  a  cer- 
tain way  (Sachra  v.  Town  of  Manilla  [Iowa] 
95  N.  W.  198)  and  the  probable  effect  of  In- 
juries (Stembridge  v.  Southern  R.,  65  S.  C. 
440)  as  that  they  would  be  permanent  (Wal- 
den v.  City  of  Jamestown.  79  App.  Div.  [N. 
Y.]  433)  would  tend  to  increase  (Robinson  v. 
St.  Louis  &  S.  R.  Co.  [Mo.  App.]  77  S.  W. 
493),  or  would  result  In  paralysis — Walden  v. 
City  of  Jamestown,  79  App.  Div.  (N.  Y.)  433, 
12  Ann.  Cas.  313.  But  an  opinion  that  the 
parties  condition  "might"  have  come  from 
certain  injuries  (Moritz  v.  Interurban  St.  R. 
Co.,  84  N.  Y.  Supp.  162)  or  that  the  injury 
was  the  cause  of  subsequent  h°adaches  Is 
too  speculative — Huba  v.  Schenectady  R.  Co., 
S5  App.  Div.  (N.  Y.)  199.  An  expert  may 
state  his  opinion  as  to  whether  Injuries  will 
mfit  for  ordinary  labor — Palmer  v.  Warren 
St.  R.  Co.  (Pa.)  56  Atl.  49.  Or  as  to  how 
ong  a  patient  continued  to  suffer  pain — Wil- 
kins    V.    City   of   Missouri    Valley    (Iowa)    96 


9C 


QUALIJICATION   OF  EXPERTS. 


1161 


(§9)  C.  Qualification  of  experts. — The  preliminary  question  of  fact  as  to  the 
competency  of  an  expert  rests  largely  in  the  discretion  of  the  court  ;^^  experience 
and  opportunity  for  observation  being  generally  sufficient  as  to  matters  not  pertain- 
ing to  a  particular  art  or  science,^®  and  as  to  matters  within  the  scope  of  a  profes- 
sion^ a  practitioner  thereof  is  presumptively  competent.*'" 


N.  W.  868.  Value  of  services — Donk  Bros. 
Coal  Co.  V.  Stroff,  200  111.  483. 

CanHe  of  overflow — Read  v.  Valley  Land 
&  Cattle  Co.  (Neb.)  92  N.  TV.  622;  Akin  v.  St. 
Croix  Lumber  Co.,  88  Minn.  119. 

Knowledge  or  intent.  Whether  a  mining 
shaft  had  been  sunk  with  an  intention  of 
concealing  the  vein  is  not  a  subject  of  expert 
testimony — Davis  v.  Shepherd  (Colo.)  72  Pac. 
57. 

Technical  words — Heyworth  v.  Miller  Grain 
&  Elevator  Co..  174  Mo.  171. 

58.  Garr  v.  Cranney,  25  Utah,  193,  70  Pac. 
853;  Czarecki  v.  Seattle,  etc.,  R.  &  Nav.  Co., 
30  "Wash.  288,  70  Pac.  750;  State  v.  Barry,  11 
N.  D.  428:  Davis  v.  State  (Fla.)  32  So.  822; 
Schmuck  v.  Hill  (Neb.)  96  N.  W.  158.  Court 
may  deem  that  statement  of  what  witness 
"guesses"  is  intended  to  express  his  judg- 
ment— Hunter  v.  Helsley,  98  Mo.  App.  616. 
Prelfmlnary  cross  examination  as  to  qualifl- 
cations  should  be  allowed — Friday  v.  Penn- 
sylvania R.  Co.,  204  Pa.  405. 

59.  One  who  has  seen  animals  which  were 
struck  by  lightning  is  competent  as  to 
whether  a  particular  animal  was  so  killed — 
White  V.  Farmers'  Fire  Ins.  Co.,  97  Mo.  App. 
59^0.  The  fact  that  experts  were  not  able  to 
give  the  date  of  experiments  on  which  they 
base  certain  conclusions  does  not  render 
them  incompetent — Orient  Ins.  Co.  v.  Leonard 
(C.  C.  A.)  120  Fed.  808.  One  accustomed  to 
handle  shoes  Is  competent  as  to  weight 
though  he  has  never  weighed  a  box  of  shoes 
— Hunter  v.  Helsley.  98  Mo.  App.  616.  One 
who  has  dissected  horses  is  competent  as  to 
condition  of  organs,  though  not  a  veterinary 
— Wisecarver  v.  Long  (Iowa)  94  N.  "W.  467. 
A  physician  familiar  with  the  work  of  a 
nurse  may  give  an  opinion  as  to  her  compe- 
tence— Ward  V.  St.  Vincent's  Hospital,  78 
App.  Div.  (N.  Y.)  317.  One  engaged  for  many 
years  in  lumber  business  and  familiar  with 
certain  tract  of  timber  is  competent  as  to 
whether  the  same  could  be  profitably  cut  and 
manufactured — Belding  v.  Archer,  131  N.  C. 
287.  Dealers  in  precious  stones  are  not  com- 
petent as  to  the  commercial  uses  of  imita- 
tio'ns  thereof — Lorsch  v.  United  States,  119 
Fed.  476.  One  familiar  with  a  certain  class 
of  clothing  may  testify  as  to  effect  of  rain 
thereon,  though  he  has  never  seen  the  par- 
ticular clothing — Henry  Sonneborn  &  Co.  v. 
Southern  R.,  65  S.  C.  502.  Surveyor  held  com- 
petent as  to  amount  of  land  lost  by  lappage 
of  surveys— Belding  v.  Archer,  131  N.  C.  287. 
An  expert  as  to  seepage  and  leakage  from  ir- 
rigation reservoirs  is  competent  as  to  prob- 
ability of  damage  to  adjacent  lands  there- 
from— LolofE  v.  Sterling  (Colo.)   71  Pac.  1113. 

Macliinery  and  construction.  Steam  fitter 
held  incompetent  as  to  cause  of  explosion  of 
engine  (Wolff  Shirt  Co.  v.  Frankenthal,  96 
Mo.  App.  307)  and  millwright  as  to  cause  of 
breaking  of  pulley — Duntley  v.  Inman,  42  Or. 
334,  70  Pac.  529,  59  L.  R.  A.  785.  Mechanical 
engineer  competent  as  to  strain  of  a  certain 
structure  on  its  supports — Caven  v.  Bodwell 
Granite    Co.,    97    Me.    381.      A    carpenter    and 


builder  is  not  competent  as  to  the  tensile 
strength  of  wire  cables — Id.  It  is  not  error 
to  hold  an  experienced  contractor  or  builder 
incompetent  as  to  strength  of  a  certain 
board — Thompson  v.  Worcester  (Mass.)  68  N. 
E.  833.  A  civil  engineer  may  testify  as  to 
the  slope  which  should  be  given  to  the  sides 
of  a  railroad  cut,  though  he  has  never  been 
engaged  in  railroad  construction — Scott  v. 
Astoria  R.  Co.  (Or.)  72  Pac.  594. 

Operation  of  trains  and  street  cars.  Rail- 
road fireman  competent  as  to  proper  manage- 
ment of  engine — Texas  Southern  R.  Co.  v. 
Hart  (Tex.  Civ.  App.)  73  S.  W.  833.  An  ex- 
perienced railroad  employe  Is  competent  as 
to  the  time  within  which  a  train  can  be 
.stopped — Buckman  v.  Missouri,  etc.,  R.  Co. 
(Mo.  App.)  73  S.  W.  270.  A  motorman  with- 
out experience  in  the  use  of  reverse  power 
is  not  competent  as  to  the  distance  within 
which  a  car  could  be  stopped  by  that  means 
— Bliss  v.  United  Traction  Co.,  75  App.  Div. 
(N.  Y.)  235.  Witness  who  is  familiar  with 
steam  railroads  may  testify  to  general  effect 
of  curves  on  speed  of  an  electric  car — Atlan- 
ta R.  &  Power  Co.  v.  Monk  (Ga.)  45  S.  E.  494. 

Disease  and  insanity.  Women  who  claim 
to  have  had  miscarriages  are  not  competent 
to  testify  from  a  comparison  of  symptoms 
that  plaintiff  had  so  suffered — Gray  v.  Brook- 
lyn Heights  R.  Co.,  175  N.  Y.  448.  One  who 
had  been  a  physician  for  21  years  and  had 
treated  many  cases  of  Insanity  Is  competent 
as  to  sanity  of  testator — White  v.  McPherson 
(Mass.)   67  N.  E.  643. 

Values.  One  who  has  dealt  in  cattle  for 
many  years  Is  competent — Louisville  &  N.  R. 
Co.  V.  Landers,  135  Ala.  504.  As  is  one  who 
has  been  for  twenty  years  engaged  In  farm- 
ing— Choctaw,  etc.,  R.  Co.  v.  Deperade  (Okl.) 
71  Pac.  629.  One  who  has  owned  hunting 
dogs  all  his  life  Is  competent  as  to  the  value 
of  such  dogs — American  Exp.  Co.  v.  Bradford 
(Miss.)  33  So.  843.  One  who  has  learned  the 
market  value  of  cattle  from  daily  market  re- 
ports which  he  habitually  consults  is  com- 
petent— St.  Louis  S.  W.  R.  Co.  v.  Barnes  (Tex. 
Civ.  App.)  72  S.  W.  1041.  One  familiar  with 
the  horse  market  and  who  has  spent  several 
days  investigating  the  market  price  at  a 
certain  place  is  competent  though  he  never 
sold  any  horses  there — Cleveland,  etc.,  R.  Co. 
v.  Patton,  203  111.  376.  An  inspector  of  ten 
years'  experience  with  a  certain  commodity  is 
competent  in  respect  to  deterioration  from 
delay  and  dampness — San  Antonio,  etc.,  R. 
Co.  V.  Josey  (Tex.  Civ.  App.)  71  S.  W.  606. 
One  who  knows  the  value  of  the  article  in 
question  is  not  incompetent  because  he  does 
not  know  the  value  of  similar  articles  of 
smaller  size — Ruckman  v.  Imbler  Lumber 
Co.,  42  Or.  231,  70  Pac.  811. 

Physician  competent  as  to  value  of  serv- 
ices of  nurse — Beringer  v.  DubuqUe  St.  R. 
Co.,  118  Iowa,  135. 

Familiarity  with  the  property  In  question 
and  with  the  general  selling  price  of  prop- 
erty in  the  vicinity  is  necessary  to  constitute 
one   an   expert  as   to   land   values — Friday   v. 


1162 


EVIDENCE. 


§  9D 


(§  9)  D.  Basis  of  expert  testimony  and  examination  of  experts. — The  opinion 
of  an  expert  may  be  based  on  his  personal  knowledge  of  the  f  acts,®^  on  the  evidence 
of  other  witnesses  heard  by  the  expert/-  on  real  evidence  or  other  exhibits  before  the 
court,*^  or  on  a  hypothetical  question;^*  but  where  a  hypothetical  question  is  asked, 


Pennsylvania  R.  Co.,  204  Pa.  405.  One  who 
lived  in  the  vicinity,  bought  and  sold  much 
land  therein,  and  operated  stone  quarries,  is 
competent  as  to  value  of  land  containing  a 
quarry — Seattle  &  M.  R.  Co.  v.  Roeder,  30 
Wash.  244,  70  Pac.  498.  One  familiar  with 
property,  its  location,  soil,  etc.,  is  competent 
though  he  has  had  no  expert  training  and 
though  there  have  been  no  previous  sales  of 
land  in  the  vicinity — Board  of  Levee  Com'rs 
v.  Nelms  (Miss.)  34  So.  149.  One  who  was  a 
member  of  a  firm  and  of  a  corporation  form- 
ed from  It  and  another  firm  is  competent  as 
tt.  the  value  of  the  good  will  of  both  firms — 
White,  Corbin  &  Co.  v.  Jones,  79  App.  Div.  (N. 
Y.)  373.  Though  a  witness  to  land  value 
states  that  he  knows  the  market  price  from 
what  he  paid  for  it,  his  testimony  will  not 
be  excluded  unless  it  appears  that  he  based 
his  opinion  on  this  alone — Houston,  etc.,  R. 
Co.  V.  Charwalne  (Tex.  Civ.  App.)  71  S.  W. 
401.  Witness  familiar  with  land  for  many 
years  and  who  knows  from  sales  the  value  of 
land  in  the  neighborhood  is  competent  as  to 
value — Smith  v.  Pennsylvania  R.  Co.,  205  Pa. 
645;  Leiby  v.  Clear  Spring  Water  Co.,  205  Pa. 
634.  But  one  who  knew  nothing  of  property 
before  the  running  of  a  railroad  line  thereon 
is  Incompetent  as  to  the  damage — Shimer  v. 
Easton  R.  Co.,  205  Pa.  648.  And  witnesses 
vsrho  are  familiar  with  land  but  do  not  know 
its  market  value  are  incompetent  as  to  de- 
preciation by  construction  of  railroad — Chi- 
cago, etc.,  R.  Co.  V.  Douglass  (Tex.  Civ.  App.) 
76  S.  W.  449.  One  having  no  knowledge  of 
property  in  the  vicinitj'  is  not  competent — 
Lynch  v.  Troxell  (Pa.)  56  Atl.  413.  One  who 
lias  occupied  premises  is  competent  to  testi- 
fy to  the  value  of  the  use  and  occupation 
thereof — Ish    v.    Marsh    (Neb.)    96    N.    W.    58. 

Handwriting.  An  expert  as  to  handwriting 
is  not  rendered  incompetent  by  the  fact  that 
he  did  not  become  familiar  with  the  writing 
of  the  person  in  question  till  after  the  writ- 
ing in  dispute  was  written — Ratliff  v.  Rat- 
liff,  131  N.  C.  425.  An  agent  who  has  re- 
ceived letters  from  his  principal  is  compe- 
tent as  to  the  principal's  handwriting — Mon- 
umental Bronze  Co.  v.  Doty  (Mo.  App.)  73  S. 
W.  234.  An  expert  in  handwriting  may  tes- 
tify that  a  forged  signature  was  written  by 
a  certain  person  other  than  the  purported 
signer,  but  mere  familiarity  with  the  writing 
of  such  person  does  not  qualify — Neall  v. 
United  States  (C.  C.  A.)  118  Fed.  699.  An 
instructor  in  penmanship  of  thirty  years'  ex- 
perience, who  has  for  many  years  made  spe- 
cial study  of  the  comparison  of  handwritings, 
is  competent — Heffernan  v.  O'Neill  (Neb.)  96 
.  NT.  W.  244. 

Foreign  law.  A  lawyer  familiar  with  the 
civil  law  generally,  but  not  with  the  laws 
of  Mexico  other  than  that  the  civil  law  is 
the  basis  of  its  jurisprudence,  is  not  com- 
petent as  to  the  Mexican  law  on  a  particular 
question — Banco  De  Sonora  v.  Bankers'  Mut. 
Casualty  Co.   (Iowa)   95  N.  W.  232. 

CO.  Physician  assisting  at  operation  com- 
petent as  to  probable  duration  of  injuries — 
San  Antonio,  etc.,  R.  Co.  v.  Moore  (Tex.  Civ. 
App.)  72  S.  W.  226. 


61.  It  may  be  based  on  information  de- 
rived by  physician  from  examination  of  pa- 
tient— Skclton  v.  St.  Paul  City  R.  Co.,  88 
Minn.  192;  Oliver  v.  Columbia,  etc.,  R.  Co.,  65 
S.  C.  1;  State  v.  Johnson  (S.  C.)  44  S.  E.  58. 
But  the  court  may  require  the  facts  to  be 
stated — O'Malley  v.  Commonwealth,  182 
Mass.  196.  And  an  opinion  on  undisclosed 
facts  within  the  witness'  knowledge  is  in- 
competent— Raub  v.  Carpenter,  187  U.  S.  159, 
47  Law  Ed.  119;  Thayer  v.  Smoky  Hollow 
Coal  Co.  (Iowa)  96  N.  W.  718.  The  fact  that 
the  knowledge  of  the  expert  as  to  a  ma- 
chine was  acquired  after  the  time  is  imma- 
terial if  there  was  no  change  in  its  condi- 
tion— Huber  Mfg.  Co.  v.  Hunter  (Mo.  App.) 
72  S.  W.  484.  An  opinion  as  to  the  best 
method  of  doing  certain  work  based  in  part 
on  the  practice  of  the  trade  is  inadmissible 
— Independent  School  Dist.  v.  Swearngin 
(Iowa)  94  N.  W.  206. 

62.  RafCerty  v.  Nawn,  182  Mass.  503.  It 
has  been  held  Improper  as  usurping  the 
province  of  the  Jury  to  ask  an  expert  his 
opinion  based  on  all  the  evidence  in  the  case 
as  to  the  sanity  of  defendant  in  a  criminal 
case — Porter  v.  State,  135  Ala.  51. 

63.  If  a  witness  can  state  the  nature  and 
cause  of  a  defect  from  the  article  itself  Its 
history  need  not  be  shown — White  Mfg.  Co. 
v.  De  La  Vergne  Refrigerating  Mach.  Co.,  84 
N.  Y.  Supp.  192.  An  article  somewhat  similar 
to  that  concerning  which  an  expert  Is  asked 
to  testify  may  be  shown  to  him  in  cor>iec- 
tion  with  a  hypothetical  question — Murphy  v. 
Marston  Coal  Co.   (Mass.)   67  N.  E.  342. 

64.  A  hypothetical  question  must  not  as- 
sume any  fact  not  shown  by  the  evidence 
(Bennett  v.  City  of  Marion  [Iowa]  93  N.  W. 
558;  Nichols  v.  Oregon  Short  Line  R.  Co.,  25 
Utah,  240,  70  Pac.  996;  Galveston,  etc.,  R.  Co. 
V.  Baumgarten  [Tex.  Civ.  App.]  72  S.  W.  78; 
Hicks  V.  Galveston,  etc.,  R.  Co.  [Tex.  Civ. 
App.]  71  S.  W.  322;  Smart  v.  Kansas  City,  91 
Mo.  App.  586)  and  where  the  evidence  is 
wholly  Insufficient  to  establish  the  facts  as- 
sumed It  must  be  excluded  (Berry  v.  Safe 
Deposit  &  Trust  Co.,  96  Md.  45)  and  It  Is  not 
enough  that  such  facts  appear  in  a  pleading 
(Bennett  v.  City  of  Marlon  [Iowa]  93  N.  W. 
558)  but  any  fact  which  may  reasonably  be 
inferred  from  the  evidence  may  be  assumed 
(Economy  Light  &  Power  Co.  v.  Sheridan. 
200  111.  439;  Turney  v.  Baker  [Mo.  App.]  77 
S.  W.  479)  It  not  being  necessary  that  the 
evidence  In  respect  thereto  be  uncontradicted 
— Chicago  v.  Early,  104  111.  App.  398;  Orient 
Ins.  Co.  v.  Leonard  (C.  C.  A.)  120  Fed.  808. 

Hypothetical  questions  need  not  cover  all 
the  evidence  and  may  embrace  any  state  of 
facts  which  It  tends  to  prove  (Kirsher  v. 
Kirsher  [Iowa]  94  N.  W.  846;  Williams  v. 
State  [Fla.]  34  So.  279)  and  may  be  based 
on  any  state  of  facts  which  the  evidence  jus- 
tifies and  does  not  assume  facts  beyond  the 
evidence  though  it  does  not  assume  every 
fact  in  the  case — Woodward  v.  Chicago,  etc., 
R.  Co.  (C.  C.  A.)  122  Fed.  66;  Chicago,  etc.,  R. 
Co.  v.  Wallace,  104  111.  App.  55;  Id.,  202  111. 
129;  Herpolslieimer  v.  Funke  (Neb.)  95  N. 
'W.    688.      All    the    undisputed    facts    must    be 


^  10 


REAL  OR  DEMONSTRATIVE  EVIDENCE. 


116: 


the  witness  must  base  his  answer  wholly  on  the  facts  assumed  therein.^'  Compax- 
ison  of  handwritings  is  of  course  based  on  the  standards  introduced.®*  The  expert 
must  give  his  judgment,  not  his  conjectures,"  in  a  direct  manner,®^  but  may  state 
the  reasons  for  his  opinion  and  the  names  of  standard  authors  supporting  it.*' 
Cross-examination  may  be  directed  both  to  the  competency  of  the  expert  and  to  the 
conclusion  to  which  he  testifies.'"' 

§  10.  Real  or  demonstrative  evidence. — Demonstrative  evidence,  being  the  best 
of  which  the  matter  is  susceptible,  is  usually  admissible  whenever  available.  It  in- 
cludes articles  connected  with  the  issue,^^  exhibition  of  physical  injuries  sued  for,''^ 
comparison  of  handwritings  by  the  jury."  Whether  experiments  in  court  shall  be 
allowed  rests  largely  in  the  discretion  of  the  trial  judge.''* 


embodied  In  the  question,  but  the  adverse 
party's  theory  of  disputed  facts  need  not  be 
— Schulz  V.  Modisett  (Neb.)  96  N.  W.  338. 
The  facts  necessary  to  the  formation  of  an 
opinion  must  be  included — Birmingham  R.  & 
Elec.  Co.  V.  Butler,  135  Ala.  388.  Question 
as  to  quantity  of  earth  a  miner  could  move 
in  a  day,  not  stating  season  or  character  of 
soil,  is  properly  excluded — Walton  v.  Wild 
Goose  Min.  Co.  (C.  C.  A.)  123  Fed.  209. 
Question  as  to  interior  construction  in  re- 
spect to  danger  of  fire  held  to  present  suffi- 
cient facts  to  elicit  an  intelligent  opinion — 
Friedman  Co.  v.  Atlas  Assur.  Co.  (Mich.)  94 
N.  W.  757.  Evidence  held  insufficient  to 
show  injury  to  spine  assumed  in  question — 
Maynard  v.  Oregon  R.  Co.  (Or.)  72  Pac.  590. 
Hypothetical  question  to  elicit  opinion  as  to 
whether  overitis  resulted  from  fall  held 
proper — O'Neill  v.  Kansas  City  (Mo.)  77  S. 
W.  64. 

G5.  Hicks  V.  Galveston,  etc.,  R,  Co.  (Tex.) 
72  S.  W.   835. 

66.  Notice  of  Intended  production  of 
standards  and  formal  evidence  of  their  gen- 
uineness is  unnecessary  where  the  other 
party  had  full  opportunity  to  Investigate 
them — Storey  v.  First  Nat.  Bank,  24  Ky.  L. 
R.  1799,  72  S.  W.  318.  The  word  "paid"  writ- 
ten on  one  instrument  is  not  admissible  as  a 
standard  of  comparison  with  the  same  word 
written  on  another  instrument — Sheppard  v. 
Love  (Tex.  Civ.  App.)  71  S.  W.  67.  Expert 
may  compare  disputed  signature  with  sig- 
nature of  party  to  pleas  in  the  case — Tower 
V.  Whip  (W.  Va.)  44  S.  E.  179.  Though  the 
statute  allows  a  disputed  signature  to  be 
compared  not  only  with  that  of  the  purported 
signer  but  with  that  of  any  person  accused  of 
the  forgery,  it  cannot  be  so  compared  with- 
out evidence  connecting  the  person  with  it — 
Cook  V.  Strother  (Mo.  App.)   75  S.  W.  175. 

67.  A  statement  that  witness  thought 
there  must  have  been  about  a  certain  num- 
ber of  bushels  raised  on  a  field  by  the  looks 
of  the  crop  is  not  a  mere  guess  but  an  ex- 
pression of  judgment — La  Rue  v.  St.  Anthony 
&  D.  Elevator  Co.  (S.  D.)  95  N.  W.  292. 

68.  Statements  that  plaintiff  is  a  mental 
and  physical  wreck;  is  in  a  condition  in 
which  there  is  no  enjoyment  of  life,  etc.,  are 
inadmissible — Sterling  v.  Detroit  (Mich.)  95 
N.  W.  986. 

60.  Scott  V.  Astoria  R.  Co.  (Or.)  72  Pac. 
594. 

70.  Facts  not  in  evidence  may  be  assumed 
for  the  purpose  of  testing  the  expert's 
knowledge — Bennett  v.  City  of  Marion 
(Iowa)  93  N.  W.  558;  Houston  Biscuit  Co.  v. 


Dial.  135  Ala.  168.  Where  a  physician  testi- 
fied that  an  injured  woman  could  not  walk 
he  may  be  asked  if  she  could  not  hobble 
with  frequent  rests — Birmingham  R.  &  Elec. 
Co.  v.  Ellard.  135  Ala.  433.  A  witness  who 
testifies  to  having  prospected  certain  land 
may  be  asked  how  he  spent  his  time  when 
so  doing — Belding  v.  Archer,  131  N.  C.  287. 
A  physician  may  be  asked  whether  many 
men  do  not  have  similar  ailments  and  do 
considerable  work — McGovern  v.  Smith,  75 
Vt.  104.  A  handwriting  expert  may  be  asked 
whether  on  a  former  trial  he  did  not  ex- 
amine spurious  signatures  and  pronounce 
them  genuine — Hoag  v.  Wright,  174  N.  T. 
36.  An  expert  as  to  land  value  may  be  re- 
quired to  state  the  neighboring  property 
with  which  he  Is  familiar  and  the  source  of 
his  Information — Friday  v.  Pennsylvania  R. 
Co..  204  Pa.  405.  It  is  incompetent  to  ask  an 
expert  whether  he  subscribes  to  a  passage 
read  from  a  medical  book — Pahl  v.  Troy  City 
R.  Co.,  81  App.  Div.  (N.  Y.)  308.  An  expert 
may  be  asked  as  to  the  amount  of  his  com- 
pensation— Shannon  v.  Castner,  21  Pa.  Super. 
Ct.  294.  An  expert  may  be  asked  whether 
one  who  has  testified  to  a  contrary  opinion 
is  not  regarded  as  an  eminent  authority — 
State  V.  Greenleaf,  71  N.  H.  606.  A  question 
as  to  whether  other  physicians  might  not 
come  to  a  different  conclusion  is  improper — 
Root  v.  Boston  El.  R.  Co.  (Mass.)  67  N.  E. 
365.  Redirect.  Witness  who  has  been  cross- 
examined  as  to  whether  certain  Injuries  were 
feigned  may  be  asked  on  redirect  whether 
when  examining  the  party  he  thought  the 
injuries  were  feigned — Chicago  Union  Trac- 
tion  Co.   v.   Fortier   (111.)    68  N.  E.   948. 

71.  Clothing  worn  by  plaintiff  at  time  of 
accident — Quincy  Gas  &  Elec.  Co.  v.  Bau- 
man,  104  111.  App.  600.  Part  of  a  machine 
belt  by  the  breaking  of  which  plaintiff  was 
injured — Boucher      v.      Robeson      Mills.      182 

Mass.    500.      Piece    of   flange   of   car   wheel 

Roberts  v.  Port  Blakely  Mill  Co.,  30  Wash. 
25,  70  Pac.  111.  Bar  and  rope  used  by  con- 
vict in  escape,  though  same  are  not  in  exact 
condition  as  when  used — People  v.  Flani- 
gan,  174  N.  Y.  356. 

72.  Orscheln  v.  Scott,  90  Mo.  App.  352. 
Examination  of  Injury  by  physician  In  the 
presence  of  the  Jury  may  be  refused — Aspy 
v.  Botkins  (Ind.)   66  N.  E.  462. 

73.  As  to  comparison  by  experts  see  S  9. 
ante.  The  authenticity  of  the  writings  of- 
fered as  standards  must  be  proved — Shannon 
V.  Castner,  21  Pa.  Super.  Ct.  294. 

74.  Clark  v.  Brooklyn  Heights  R.  Co.,  78 
App.  Div.   (N.  Y.)   478. 


1164 


EVIDENCE. 


§   11 


§  11.  Quantity  required  and  probative  effect.""^ — The  party  sustaining  the  bur- 
den of  proof  in  a  civil  action  must  establish  his  cause  of  action  or  defense  by  a 
preponderance  of  the  evidence/®  even  though  the  cause  of  action  is  based  on  acts 
constituting  a  crime,"  though  on  some  issues'  greater  certainty  of  proof  is  re- 
quired/^ and  where  the  testimony  is  in  equilibrium,  the  party  having  the  burden  of 
proof  must  fail.'^*  Positive  evidence  is  usually,  but  not  always,  of  greater  weight 
than  negative.^<>  The  weight  of  testimony  is  ordinarily  for  the  jury,  even  where 
there  is  no  contradiction,"  but  uncontradicted  testimony  of  an  unimpeached  witness 
free  from  all  suspicious  circumstances  is  said  to  be  conclusive,®^  and  a  party  is  nec- 
essarily bound  by  uncontradicted  evidence  introduced  by  himself,*'  and  by  bis  own 
testimony.®* 

An  expert  opinion  is  sometimes  held  to  make  a  prima  facie  case,*''  but  cannot 
prevail  against  positive  testimony,®®  and  opinions  based  on  a  h3rpothetical  case  are 
of  less  value  than  those  based  on  observation  of  the  facts.®^ 


75.  The  credibility  of  witnesses  and  the 
means  by  which  they  are  Impeached  or  sus- 
tained will  be  treated  In  Witnesses. 

76.  Preponderance  of  evidence  means  that 
the  evidence  on  one  side  appears  more  credi- 
ble than  that  on  the  other— McKee  v.  Verdin, 
96  Mo.  App.  268.  Requirement  of  a  "fair" 
or  "clear"  preponderance  states  the  rule  too 
strongly — Travelers'  Ins.  Co.  v.  Rosch,  23 
Ohio  Giro.  R.  491;  Western  Mattress  Co.  v. 
Potter  (Neb.)  95  N.  W.  841.  Such  proof  as 
satisfies  the  jury  is  not  required — Collins  v. 
Clark  (Tex.  Civ.  App.)  72  S.  W.  97;  Ball  v. 
Marquis  (Iowa)  92  N.  W.  691.  Clrcnmstantlal 
evidence-  need  not  exclude  every  other  rea- 
sonable conclusion — Chicago,  etc.,  R.  Co.  v. 
Wood  (Kan.)  72  Pac.  215.  But  the  inference 
must  be  clear  and  direct — Jolivette  v. 
Young's  Estate,  103  111.  App.  394.  And  where 
it  was  attempted  to  establish  by  circum- 
stances that  plaintiff's  intestate  stopped, 
looked,  and  listened  before  crossing  a  rail- 
road track  it  was  said  that  the  inference 
must  be  the  only  one  which  can  fairly  and 
reasonably  be  drawn  from  the  facts — O'Reil- 
ly v.  Brooklyn  Heights  R.  Co.,  82  App.  Div. 
(N.  T.)   492. 

77.  Preponderance  Is  suflflcient  In  civil  ac- 
tion for  assault— Clasen  v.  Pruhs  (Neb.)  95 
N.  W.  640;  Kurz  v.  Doerr,  86  App.  Div.  (N. 
T.)  507. 

78.  To  contract  a  written  receipt  (Rouss 
v.  Goldgraber  [Neb.]  91  N.  W.  712);  estab- 
lish that  a  deed  absolute  on  its  face  was  in- 
tended as  a  rrortgage  (In  re  Holmes,  79  App. 
Div.  [N.  Y.l  264;  Little  v.  Braun,  11  N.  D. 
410;  Holladay  v.  Willis'  [Va.]  43  S.  E.  616); 
or  to  warrant  reformation  of  a  deed  (Fores- 
ter V.  Van  Auken  [N.  D.]  96  N.  W.  301)  the 
evidence  must  be  clear  and  convincing.  And 
evidence  of  grantor  is  insufficient  to  impeach 
certificate  of  acknowledgment — Adams  v. 
Smith  (Wyo.)  70  Pac.  1043. 

79.  Ahern  v.  Melvin.  21  Pa.  Super.  Ct.  462. 
But  the  mere  fact  that  witnesses  directly 
contradict  each  other  does  not  necessarily 
produce  a  balance — West  Chicago  St.  R.  Co. 
V.  Lieserowitz,  197  111.  607.  And  mere  num- 
ber of  witnesses  does  not  determine  the  pre- 
ponderance of  the  evidence — Campbell  v. 
Delaware  &  A.  Tel.  Co.  (N.  J.  Sup.)  56  Atl. 
303.  Testimony  of  husband  and  wife  in 
their  own  interest  will  not  prevail  against 
a  single  disinterested  witness — Greditzer  v. 
Continental  Ins.  Co.,  91  Mo.  App.  534. 


80.  Evidence  that  signals  were  not  given, 
by  one  who  must  have  heard  them  if  they 
had  been,  Is  of  as  much  weight  as  evidence 
that  they  were  given — Stanley  v.  Cedar  Rap- 
ids R.  Co.  (Iowa)  93  N.  W.  489;  Selensky  v. 
Chicago  G.  W.  R.  Co.  (Iowa)  94  N.  W.  272. 

81.  Blount  V.  Medbery  (S.  D.)  94  N.  W. 
428.  Circumstances  In  evidence  tending  to 
discredit  testimony — Phoenix  Life  Ins.  Co.  v. 
Opper,  75  Conn.  295.  Appearance  of  witness 
or  inherent  improbability  of  story  may  dis- 
credit uncontradicted  testimony — United 
States  V.  Lee  Huen,  118  Fed.  442.  Testimony 
of  child  of  tender  years — Shannon  v.  Swan- 
son,  104  111.  App.  465.  Similarity  of  testi- 
mony of  two  witnesses  not  necessarily  sus- 
picious where  they  live  together  and  must 
have  frequently  discussed  the  transaction — 
Fatjo  V.  Seidel,  109  La.  699.  Though  evi- 
dence is  contradictory  and  Improbable  the 
jury  may  consider  It — Shortsleeve  v.  Steb- 
bins,  77  App.  Div.  (N.  T.)  588;  Hallett  v. 
Fish,  120  Fed.  986. 

S3.  Testimony  of  party — Second  Nat.  Bank 
V.  Weston.  172  N.  T.  250. 

83.  Haas  v.  Zimmermann,  39  Misc.  (N.  Y.) 
304;  Stadermann  v.  Heins,  78  App.  Div.  (N. 
Y.)  563.  One  who  proves  an  admission  is 
not  concluded  by  the  accompanying  expla- 
nation— Detroit  Electric  Light  &  Power  Co. 
V.  Applebaum  (Mich.)  94  N.  W.  12. 

84.  Daugherty  v.  Lady  (Tex.  Civ.  App.)  73 
S.  W.  837.  A  party  is  concluded  by  the  ad- 
missions In  his  testimony  to  the  full  extent 
of  the  strongest  admission  made  by  him — 
Cogan  V.  Cass  Ave.,  etc.,  R.  Co.  (Mo.  App.) 
73  S.  W.  738. 

85.  As  to  significance  of  technical  term — 
Barber  Asphalt  Co.  v.  Howcott,  109  La.  692. 
Not  sufficient  as  to  whether  title  to  land  was 
defective — Hess  v.  Eggers,  38  Misc.  (N.  Y.) 
726.  Opinion  that  16  men  were  necessary 
to  lift  a  600  pound  rail  disregarded  as  ab- 
surd— Haviland  v.  Kansas  City,  etc.,  R.  Co., 
172  Mo.   106.  ' 

80.  Testimony  of  witnesses  to  execution 
of  instrument  sustained  as  against  testi- 
mony of  experts  that  signature  w^as  forgery 
— Card  V.  Moore.  173  N.  Y.  598.  That  loans  to 
insured  were  on  account  of  premiums  paid — 
Smith  V.  Mutual  Life  Ins.  Co..  173  Mo.  329. 
Opinion  that  dislocation  could  not  result 
from  certain  accident  cannot  overcome  evi- 
dence of  phj'sician  that  dislocation  existed — • 
Highfill  V.  Missouri  Pac.  R.  Co..   93  Mo.  App. 


§1 


EXAMINATION  OF  WITNESSES. 


1165 


Admissions  are  not  conclusive.ss  -^^^  ^re  usually  held  to  be  prima  facie  evi- 
dence,^' but  their  weight  varies  with  the  circumstances  under  which  they  were 
made.^" 

The  sufficiency  of  evidence  is  generally  questioned  on  a  request  for  an  instruc- 
tion," or  for  a  special  finding  or  on  objection  or  exception  to  findings,'^  or  on  mo- 
tions to  dismiss  or  nonsuit/^  or  to  direct  a  verdict  or  on  a  demurrer  to  the  evi- 
dence/* or  on  motion  for  new  trial  or  other  revisory  proceeding.'"^  Facts  which  evi- 
dence or  which  in  accurate  speech  constitute  or  form  a  predicate  for  a  given  right, 
cause  of  action,  defense  or  duty,  are  assigned  to  such  titles  as  treat  of  the  particular 
matter. 


EXAMINATION  OF  WITNESSES. 


§  3.     Re-direct    Examination. 

§  4.     Recalling  Witness. 

§  5.     Privilege  of  Witness. — Waiver. 


§  1.  General  Rules — Repetition;  Leading; 
Hypotheses;  Refreshing  Memory;  Interpre- 
ters;  Responsiveness. 

§  2.  Cross-examination. — Scope  of  Direct; 
Scope  of  Issues;  Credibility;  Probability; 
Documents;  Character. 

8  1  General  rules  of  examination.— The  form  of  questions  and  methods  of 
examination  are  largely  within  the  discretion  of  the  trial  court.^  The  questions 
should  be  definite^  and  contain  a  single  interrogatory ,3  though  questions  asking 
for  answers  in  a  narrative  form  are  sometimes  allowed.* 

Models,  diagrams,  and  tools  may  be  used  to  illustrate  evidence." 


219.      Opinions    that    "green    stick    fracture 
could  not  occur  to  man  69  years  old  cannot 
overcome  testimony  that  such  fracture  was 
present— Gorman  v.  St.  Louis  Transit  Co.,  96 

1   Mo.  App.  602.  . 

■  87.  Evidence  of  family  physician  and  at- 
torney more  valuable  as  to  capacity  than 
experts  testifying  from  hypothetical  ques- 
tions—In  re  Kane-s  Estate  (Pa.)  55  Atl.  917. 
lilvidence  of  physicians  to  testamentary  ca- 
pacity is  entitled  to  more  weight  than  that 
of  laymen  if  they  have  had  opportunity  for 
personal  observation  of  the  testator;  other- 
wise It  Is  not— Ward  v.  Brown  (W.  Va.)  44 
S  E  488  Expert  opinion  on  hypothetical 
oase"of  little  value  where  facts  are  disputed 
--In  re  Richmond's  Estate   (Pa.)   55  Atl.  970. 

88.  Houston,  etc.,  R.  Co.  v.  De  Walt  (Tex. 
Civ  App.)  71  S.  W.  774.  Approval  of  ac- 
count rendered— White  City  State  Bank  v. 
St.   Joseph   Stock   Yards   Bank,    90   Mo.   App. 

395 

89.  Joralman  v.  McPhee  (Colo.)  71  Paa 
419;  Burk  v.  HiU  (Ga.)  45  S.  E.  732.  The 
insertion  of  a  claim  against  himse  f  in  an  In- 

•  ventory  by  an  executor  is  not  of  Itself  suffi- 
cient to  sustain  a  plea  of  set  off  in  an  ac- 
tion by  him  against  the  estate-Siebert  v. 
Stelnmeyer,  204  Pa.  419. 

90      Their  Intrinsic  weakness  is  enhanced 

,  bv  death  of  declarant  and  lapse  of  time— 
Kinney  v.  Murray,  170  Mo.  674;  Reed  v.  Mor- 
gan  (Mo.  App.)  73  S.  W.  381. 

91.  See  Instructions. 

92.  See  Verdicts  and  Findings. 

93.  Dismissal  and  Nonsuit. 

94.  Directing    Verdict    and    Demurrer    to 

^'is.^^New  Trial,   etc.;   Appeal  and  Review; 
certiorari^  ^^^^    ^pp^    ^2  Pac. 

Jl  ftSthS  V.  State  (Fla.)   34  So.  287.     It  Is 


within  the  discretion  of  the  court  to  deny 
a  request  for  a  consultation  with  a  party's 
witness  called  to  the  stand  before  an  exam- 
ination, though  he  had  not  had  an  oppor- 
tunity ■  to  do  so  before — Hudson  v.  State 
(Ala.)  34  So.  854.  Harmless  error.  Error  in 
allowing  a  witness  to  be  asked  an  improper 
question  is  harmless  if  the  answer  contains 
no  incompetent  testimony — Younglove  v. 
Knox  (Fla.)  33  So.  427.  And  see  Harmless 
Error  for  a  full  discussion. 

2.  Whether  a  foreman  had  given  any  or- 
ders on  any  other  day  than  the  day  of  the 
accident,  as  to  the  position  the  men  should 
occupy  on  a  hand  car,  is  too  general  and  in- 
definite— Western  R.  Co.  v.  Arnett  (Ala.)  34 
So.  997.  A  witness  may  not  be  asked  In 
regard  to  defendant's  complaints  as  to  his 
physical  condition  unless  there  is  reference 
to  some  particular  time  that  will  not  render 
the  statement  open  to  the  objection  of  a 
self  serving  declaration — State  v.  Bailey,  31 
TVash.  89,  71  Pac.  715. 

3.  A  question  whether  a  witness  had  not 
made  a  certain  statement  and  knew  It  to 
have  been  a  fact,  is  objectionable  as  involv- 
ing two  interrogatories — State  v,  Burrell,  27 
Mont.   282,  70  Pac.  982. 

4.  Where  questions  could  easily  be 
framed  which  would  have  brought  out  the 
same  testimony,  a  party  will  not  be  preju- 
diced by  the  court  allowing  testimony  to 
be  given  in  a  narrative  form — Goldsmith  v. 
Newhouse  (Colo.  App.)   72  Pac.  809. 

5.  A  model  may  be  used  by  a  witness 
for  the  purposes  of  illustration  though  not 
Introduced  in  evidence — Geist  v.  Rapp  (Pa.) 
55  Atl.  1063.  But  such  exhibits  should  not 
be  considered  by  the  jury  as  evidence — State 
V  Wilson  (Kan.)  71  Pac.  849.  Wbere  in  an 
action  for  injuries  caused  by  a  defective 
weld  In   a  piece  of  machinery,   another  sim- 


1166 


EXAMINATION  OF  WITNESSES. 


§   1 


The  court  may,  in  furtherance  of  justice,  question  a  witness,*  but  the  prao 
tice  of  extended  examination  by  the  court  is  not  approved  J 

The  question  should  not  assume  facts,*  nor  call  for  conclusions." 
Bepetiiion  of  questions  fully  answered  should  not  be  allowed." 
Leading  questions  are  questions  which  suggest  to  the  witness  the  answer  de- 
sired.*^    Their  allowance  by  the  trial  court  is  discretionary." 


ilar  piece  of  machinery  on  which  was  an  old 
weld,  was  put  in  evidence  without  objection, 
the  latter  could  be  used  in  framing  hypo- 
thetical questions  propounded  to  experts — 
Murphy  V.  Marston  Coal  Co.  (Mass.)  67  N. 
E.  342.  It  is  not  good  practice  to  allow  wit- 
ness to  indicate  the  position  of  the  parties 
by  reference  to  objects  in  the  court  room, 
without  evidence  in  the  record  as  to  the 
distance  to  aid  the  appellate  court  In  review- 
ing the  case — Rachmel  v.  Clark,  205  Pa.  314. 

6.  South  Omaha  v.  Fennell  (Neb.)  94  N. 
W.  632.  While  the  practice  by  a  court  of 
injecting  a  series  of  questions  on  the  exam- 
ination of  each  witness,  may  easily  grow 
into  an  abuse  calling  for  reversal  in  a  prop- 
er case,  this  will  not  be  the  result  where 
the  questions  were  asked  without  objection 
or  exception  of  any  kind  and  in  an  apparent 
impartial  desire  to  elicit  the  truth — Met- 
calfe V.  Gordon,  86  App.  Div.    (N.  Y.)    368. 

7.  Pardridge  v.  Cutler,  104  111.  App.   89. 

8.  The  question  is  not  open  to  the  objec- 
tion that  it  assumes  facts  where  its  purpose 
is  merely  to  identify  an  occurrence — Travel- 
er's Ins.  Co.  v.  Hunter  (Tex.  Civ.  App.)  70  S. 
W.  798.  Asking  a  witness  whether  on  a 
former  trial  he  did  not  testify  to  a  certain 
fact,  is  not  objectionable  for  assuming  the 
fact  of  a  former  trial — Gilliland  v.  Dunn  & 
Co.,  136  Ala.  327.  The  question  what,  if 
anything,  witness  had  to  do  with  a  transac- 
tion Is  not  objectionable  as  assuming  that 
she  had  something  to  do  with  it — Coldren  y. 
T^e  Gore,  118  Iowa,  212.  A  question  why,  If 
witness  was  such  a  good  friend  of  deceased 
he  did  not  tell  him  of  threats  against  him 
is  Improper  as  assuming  a  friendship  and 
that  the  witness  had  not  told  deceased — 
Stewart  v.  State  (Ala.)   34  So.  818. 

9.  Sheldon  v.  Bigelow,  118  Iowa,  586;  Bir- 
mingham R.  &  Elec.  Co.  V.  Jackson.  136  Ala. 
279.  Admissibility  of  conclusions  of  witness 
are  discussed  in  Evidence.  §  9A. 

10.  Toledo,  etc.,  R.  Co.  v.  Gilbert,  24  Ohio 
Circ.  R.  181;  State  v.  King  (Iowa)  96  N.  "W. 
712;  Hutchins  v.  Missouri  Pac.  R.  Co.,  97 
Mo.  App.  548.  Where  question  has  been  fully 
answered  on  direct  examination  there  is  no 
error  in  excluding  it  on  cross  examination 
— Qulncy  Gas  &  Elec.  Co.  v.  Baumann,  203 
111.  295;  Edwards  v.  State  (Neb.)  95  N.  W. 
1038;  Carlson  v.  Holm  (Neb.)  95  N.  W.  1125. 
Where  a  witness  testifies  that  his  recollec- 
tion is  not  aided  by  newspaper  articles  re- 
lating to  the  matter  in  controversy,  the 
court  may  refuse  to  allow  him  to  be  again 
examined  as  to  the  matter — U.  P.  Steam 
Baking  Co.  v.  Omaha  St.  R.  Co.  (Neb.)  94 
N.  W.  533.  A  witness  may  not  be  cross  ex- 
amined as  to  matters  fully  covered  by  his 
previous  cross  examination  in  the  case — 
Hoover  v.  State   (Ind.)   68  N.  E.  591. 

11.  "On  what  part  of  the  running  board 
when  you  first  saw  him?"  a  party  was  stand- 
ing (San  Antonio  Traction  Co.  v.  Bryant 
[Tex    Civ.   App.l    70   S.  W.   1015);  whether  a 


locomotive  was  properly  handled  when  pass- 
ing a  certain  point  (Texas  So.  R.  Co.  v.  Hart 
[Tex.  Civ.  App.]  73  S.  W.  833);  whether  wit- 
ness had  ever  witnessed  objects  floating 
down  a  stream  and  If  so,  whether  the  course 
taken  was  toward  a  certain  shore  (State  v. 
Johnson  [S.  C]  44  S.  E.  58);  whether  wit- 
ness has  ever  received  anything  by  w^ay  of 
payment  (Rothstein  v.  Slegel,  102  111.  App. 
600);  whether  it  was  or  was  not  dangerous 
to  do  a  certain  thing  (Galveston,  etc.,  R.  Co. 
V.  Puente  [Tex.  Civ.  App.]  70  S.  W.  362); 
whether  or  not  witness'  foot  was  twisted 
or  wrenched  at  the  time  of  the  injury  (In- 
diana R.  Co.  v.  Maurer  [Ind.]  66  N.  E.  156) 
have  been  held  not  to  be  leading.  A  ques- 
tion reciting  fact  already  testified  to  by  a 
witness  is  not  leading — Oliver  v.  Columbia, 
etc.,  R.  Co..  65  S.  C.  1.  Where  it  is  not  clear 
from  the  answer  whether  a  witness  In- 
tended to  place  his  damages  at  one  amount 
or  another,  the  question  whether  or  not  his 
actual  damage  was  one  of  the  amounts,  was 
not  objectionable  as  leading — Harzburg  & 
Co.  v.  Southern  R.  Co.,  65  S.  C.  539.  In  an 
action  against  a  city  where  the  issue  la  a 
defect  in  a  grating  on  a  sidewalk,  a  ques- 
tion— "Those  grates  were  mighty  light  to 
start  with," — is  leading — Lentz  v.  Dallas 
(Tex.)  72  S.  W.  59.  Asking  a  prosecutrix 
whether  she  had  told  any  one  what  defend- 
ant had  done  to  her  should  be  excluded  as 
leading  in  a  prosecution  for  rape — Oakley 
V.  State.  135  Ala.  29. 

12.  Anthony  v.  State  (Fla.)  32  So.  818; 
Rio  Grande  Western  R.  Co.  v.  Utah  Nursery 
Co.,  25  Utah,  187,  70  Pac.  859;  Campion  v. 
Lattimer  (Neb.)  97  N.  W.  290;  Pittsburgh, 
etc.,  R.  Co.  v.  Kinnare,  203  111.  388;  Colvin  v. 
McCormIck  Cotton  Oil  Co..  66  S.  C.  61; 
Ralney  v.  Potter  (C.  C.  A.)  120  Fed.  651; 
Edwards  v.  State  (Neb.)  95  N.  W.  1038;  Carl- 
son v.  Holm  (Neb.)  95  N.  W.  1125.  Particu- 
larly In  examination  of  prosecutrix  In  prose- 
cution for  seduction — State  v.  Burns  (Iowa) 
94  N.  W.  238.  A  reversal  will  not  necessa- 
rily result  because  an  attorney  persists  In 
asking  leading  and  suggestive  questions 
which  are  immediately  excluded  as  the  mat- 
ter is  discretionary  with  the  trial  court — 
Sullivan  V.  Chicago,  etc.,  R.  Co.  (Iowa)  93 
N.  W.  367.  Leading  questions  allowable  by 
auditor  where  ends  of  justice  may  be  sub- 
served thereby — Rusk  v.  Hill  (Ga.)  45  S.  E. 
42.  Where  both  the  court  and  the  attor- 
neys are  uncertain  as  to  the  meaning  of 
statements  made  by  witness,  the  court  may 
allow  the  attorney  to  propound  a  leading 
question  to  get  a  clearer  understanding  of 
facts  and  this  particularly  where  the  other 
party  was  not  prejudiced  thereby — Rio 
Grande  Western  R.  Co.  v.  Utah  Nursery  Co., 
25  Utah,  187,  70  Pac.  859.  The  witness'  may 
be  asked  le.Tding  questions  as  to  an  undis- 
puted matter — San  Antonio  Traction  Co.  v. 
Crawford  (Tex.  Civ.  App.)  71  S.  W.  306. 
Questions   asked  for   the   purpose  of  rontr.i- 


§  1 


DIRECT  OR  IN  CHIEF. 


1167 


Code  provisions  allowing  examination  of  a  party  as  if  under  cross-examina- 
tion extend  only  to  adverse  parties.^^ 

Hypothetical  questions  used  in  the  examination  of  expert  witnesses/*  must  be 
based  on  facts  proved,"  or  which  the  evidence  tends  to  prove,"  and  it  is  not  neces- 
sary that  they  should  contain  ail  the  facts  in  evidence."  It  is  no  objection  that 
the  recital  is  partisan." 

Refreshing  memory. — A  witness  may  refresh  his  memory  by  reference  to  mem- 
oranda in  the  preparation  of  which  he  participated  and  the  accuracy  of  which  he 
has  personal  knowledge  of,"  though  he  has  no  independent  personal  recollection." 


dieting  former  testimony  may  be  leading — 
Jensen  v.  Stelber  (Neb.)  93  N.  W.  697.  The 
master  in  an  undefended  divorce  case  may 
examine  a  witness  by  leading  questions  If 
he  seems  inclined  to  evade  disclosure,  but 
this  does  not  allow  the  counsel  of  the  party 
to  also  ask  leading  questions — Seeley  v.  See- 
ley,  64  N.  J.  Eq.  1.  A  witness  disappoint- 
ing the  party  calling  him,  may  be  asked 
questions  tending  to  test  his  memory  by  re- 
calling previous  statements  and  drawing  out 
explanations  of  apparent  Inconsistency,  and 
tending  to  show  the  circumstances  under 
which  the  witness  was  called — Creighton  v. 
Modern  Woodmen,  90  Mo.  App.  378.  Where 
the  answers  are  relevant  and  admissible, 
the  error  in  allowing  leading  questions  on 
direct  examination  will  not  work  a  reversal 
— Rome  v.  Stewart,  116  Ga.  738. 

13.  Non  answering  partners  in  an  action 
against  several  as  partners  are  not  adverse 
parties— Moore  v.  May  (Wis.)  94  N.  W.  45. 
And  may  not  be  invoked  in  a  suit  in  equity 
In  a  federal  court— Calivada  Colonization  Co. 
V.   Hays.   119   Fed.   202. 

14.  Not  necessary  where  facts  are  within 
knowledge  of  witness — Rafferty  v.  Nawn,  182 
Mass.  503.  See  Evidence.  §  9D  for  a  discus- 
sion of  the  basis  of  expert  testimony. 

15.  Birmingham  R.  &  Elec.  Co.  v.  But- 
ler, 135  Ala.  388:  Kirsher  v.  Kirsher  (Iowa) 
94  N.  W.  846;  Maynard  v.  Oregon  R.  Co.  (Or.) 
72  Pac.  590.  Error  in  a  hypothetical  ques- 
tion which  embraces  facts  not  proven,  is 
cured  by  an  instruction  that  the  value  of  an 
opinion  on  a  hypothetical  question  depends 
on  facts  proven  which  are  embraced  in  the 
question— Thomas  v.  Dabblemont  (Ind.  App.) 
€7  N.  E.  463.  .  ,     , 

16.  The  hypothetical  question  asked  an 
expert  need  only  be  based  on  what  the  evi- 
dence tends  to  prove  and  need  not  cover  all 
of  that— Kirsher  v.  Kirsher  (Iowa)   94  N.  W. 

S46 

17.  Chicago,  etc.,  R.  Co.  v.  Wallace,  104 
111  App.  55;  Galveston,  etc..  R.  Co.  v.  Baum- 
garten  (Tex.  Civ.  App.)  72  S.  W.  78.  A  hypo- 
thetical question  which  assumes  and  fairly 
states  the  existence  of  any  state  of  facts 
which  the  evidence  directly  and  reasonably 
tends  to  establish  or  justify,  and  which  does 
not  assume  facts  beyond  the  ,range  of  the 
evidence  and  the  legal  presumptions  in  the 
case  may  be  properly  asked  and  answered 
though  it  does  not  assume  every  fact  in 
the  case— Woodward  v.  Chicago,  etc.,  R.  Co. 
(CCA)  122  Fed.  66.  A  hypothetical  ques- 
tion is  not  to  be  rejected  because  it  does  not 
include  all  the  facts  in  evidence,  where  oth- 
ir  elements  are  omitted;  the  other  party 
deeming  such  elements  material  and  desir- 
ing   the    opinion    of    a   witness,    in    view    of 


such  elements  may  impeach  him  in  the  fur- 
ther questioning  on  cross-examination — ^Her- 
polshelmer  v.  Funke  (Neb.)  95  N.  W.  688. 
A  hypothetical  question  reciting  the  meth- 
ods used  to  remodel  and  improve  the  entire 
Interior  of  a  building  and  asking  if  the  wit- 
ness thought  the  construction  perfectly  safe, 
is  not  objectionable  as  not  stating  facts  suf- 
ficient to  enable  witness  to  give  an  intelli- 
gent opinion — Friedman  Co.  v.  Atlas  Assur. 
Co.    (Mich.)    94  N.  W.  757. 

IS.     Murphy   v.   Marston   Coal   Co.    (Mass.) 
67  N.  E.  342. 

19.  Titus  V.  Gunn  (N.  J.  Err.  &  App.)  55 
Atl.  735;  Lenney  v.  Finley  (Ga.)  45  S.  E. 
317;  Taft  v.  Little,  78  App.  Div.  (N.  Y.)  74. 
A  physician  may  refer  to  a  memorandum 
made  at  the  time  of  visiting  patient,  to  re- 
fresh his  memory  as  to  condition  of  patient 
at  time  of  visit — Bailey  v.  Warner  (C.  C.  A.) 
118  Fed.  395.  Memoranda  kept  in  connection 
with  a  cash  register  are  sufficient  where  wit- 
ness testifies  as  to  their  correctness — Gross 
V.  Scheel  (Neb.)  93  N.  W.  418.  A  depositor 
may  refresh  his  recollection  as  to  the  de- 
nominations of  money  deposited,  by  refer- 
ence to  the  original  deposit  slip  written  by 
him  at  the  time  he  made  deposit — State  v. 
Stevens  (S.  D.)  92  N.  W.  420.  Books  of  ae- 
connt.  A  witness  may  refresh  his  recollec- 
tion by  reference  to  entries  made  by  him  In 
due  course  of  business  of  his  firm,  by  refer- 
ence to  the  original  entries — Hodgkins  v. 
Smith,  104  111.  App.  420.  To  book  entries 
where  a  witness  saw  goods  sold  and  charged 
all  entries  of  the  same — Sonneborn  &  Co.  v. 
Southern  R.,  65  S.  C.  502.  Where  a  book  Is 
not  the  book  of  original  entries  and  has 
not  been  offered  In  evidence  and  Is  shown  to 
have  been  made  up  by  a  clerk  from  memo- 
randa furnished  by  others,  the  clerk  cannot 
testify  as  to  sales  by  refreshing  his  memory 
from  the  bill  book — Owen  v.  Rothermel,  21 
Pa.  Super.  Ct.  561.  A  witness  testifying  to 
particular  items  of  stock  of  goods  and  their 
value,  may  refresh  his  memory  by  reference 
to  an  inventory  of  the  goods  made  by  him- 
self—Gross V.  Scheel  (Neb.)  93  N.  W.  418. 
Though  a  physician  could  not  state  the  num- 
ber of  calls  he  made,  from  memory,  or  even 
from  memory  refreshed  by  the  books,  yet  if 
the  books  enabled  him  to  say  on  oath  that  the 
fact  was  as  the  books  stated,  the  evidence 
was  admissible — Mayberry  v.  Holbrook,  182 
Mass.  463.  On  the  question  of  the  residence 
of  a  person  at  a  certain  place  on  a  certain 
date,  a  merchant  may  be  permitted  to  testify 
that  he  sold  the  party  a  bill  of  goods  on  that 
day  and  may  refresh  his  memory  as  to  the 
dav  by  reference  to  his  books  of  account  and 
enumerate  the  articles  sold — Shannon  v. 
Castner,   21  Pa.   Super.  Ct.   294.     Books  being 


libS 


EXAMINATION  OF  WITNESSES. 


The  memorandum  must  be  made  at  the  time  of  the  transaction  or  so  directly 
thereafter  as  to  be  a  part  of  the  same,^!  but  need  not  necessarily  be  admissible  as 
evidence,^^  nor  is  it  necessary  that  the  memorandum  should  have  been  made  by 
the  witness  provided  he  is  able  to  testify  from  his  ot\ti  recollection  after  an  in- 
spection.^^  A  witness  may  testify  from  a  memory  refreshed  by  a  transcript  of 
former  testimony.-*  A  copy  of  the  memorandum  may  not  be  used  unless  the 
absence  of  the  original  is  satisfactorily  accounted  for.'^' 

The  memorandum  used  by  witness  is  admissible  not  as  original  evidence  but 
as  an  aid  to  the  jury.^' 

Interpreters. — Witnesses  may  be  examined  through  interpreters." 
Responsiveness. — The  answer  of  the  witness  should  be  responsive  to  the  ques- 
tion, and  where  the  witness  fails  in  this  respect  the  answer  should  be  stricken,^' 
The  trial  court  has  large  discretion  in  the  matter.^" 


in  evidence  a  pubMc  examiner  testifying  as 
to  solvency  may  refresh  his  memory  by  ref- 
erence to  memoranda  made  at  the  time  of 
examination.  Held  in  prosecution  for  re- 
ceiving a  deposit  after  insolvency — State  v. 
Stevens   (S.  D.)    92  N.  W.   420. 

20.  So  long  as  he  knows  that  the  memo- 
randum was  made  in  accordance  with  the 
truth — Loose  v.  State  (Wis.)  97  N.  W.  526. 
A  landlord  of  a  hotel  after  his  examination 
of  a  register  may  testify  that  a  certain  per- 
son was  a  guest  at  his  hotel  on  certain  days 
though  independently  of  the  register  he  had 
no  recollection  of  the  party  having  been  In 
the  hotel  on  such  days — State  v.  Douette,  31 
Wash.  6,  71  Pac.  556.  But  see  Volusia  Coun- 
ty Bank  v.  Bigelow   (Fla.)    33  So.  704. 

31.  Sibley  Warehouse  Co.  v.  Durand,  102 
111.  App.  406:  Volusia  County  Bank  v.  Big- 
elow (Fla.)  33  So.  704;  Johnson  v.  Spaulding 
(Neb.)  95  N.  W.  808;  Welch  v.  Greene  (R.  I.) 
64  Atl.   54. 

22.  One  testifying  as  to  goods  furnished 
an  estate  may  refer  to  the  bill  rendered 
therefor  in  order  to  refresh  his  memory, 
though  the  bill  itself  would  have  been  inad- 
missible on  account  of  not  having  been  made 
by  the  witness  and  not  being  an  original 
entry — Ellis  v.  Baird  (Ind.  App.)  67  N.  E. 
960.  As  where  a  witness  testifying  to  dying 
declarations  made  a  memorandum  at  the 
time  but  failed  to  have  same  signed — Fuqua 
V.  Commonwealth,  24  Ky.  L.  R.  2204,  73  S. 
W.  782;  Foley  v.  State  (Wyo.)   72  Pac.  627. 

23.  Telegrams — Commonwealth  v.  Burton 
(Mass.)  67  N.  E.  419.  In  Pennsylvania  a  wit- 
ness may  refresh  his  memory  from  a  writ- 
ten notice  signed  by  him  in  his  own  hand- 
writing though  the  notice  was  written  by 
a  clerk  at  his  order — Athens  Car  &  Coach 
Co.  v.  Elsbree.  19  Pa.  Super.   Ct.  618. 

24.  Connell  v.  State  (Tex.  Cr.  App.)  75  S. 
W.  512.  Under  Code  Civ.  Proc.  Cal.  §  2047, 
provision  allowing  a  witness  to  testify  from 
anything  written  by  himself  or  under  his 
direction  when  he  testifies  as  to  the  cor- 
rectness of  the  writing,  though  retaining  no 
recollection  of  the  fact,  the  testimony  of  a 
witness  to  facts  appearing  in  the  testimony 
on  a  previous  trial  is  admissible,  the  wit- 
ness stating  that  if  the  record  represented 
him  as  testifying  as  appeared,  the  testi- 
mony was  true  and  that  his  memory  was 
better  at  that  time,  and  tried  to  tell  the 
truth  and  did  so,  so  far  as  he  knew,  but  that 
the  reading  of  the  record  did  not  refresh 
his   recollection  so  that  he  had   any   present 


memory  of  the  facts  to  which  he  had  for- 
merly testified — People  v.  McFarlane,  138 
Cal.  481,  71  Pac.  568,  72  Pac.  48.  A  court  re- 
porter's evidence  is  admissible  where  he 
swears  from  his  notes  to  statements  of  the 
witness  though  he  has  no  recollection  inde- 
pendent of  his  notes — Miles  v.  Walker  (Neb.) 
92  N.  W.  1014. 

25.  Volusia  County  Bank  v.  Bigelow 
(Fla.)  33  So.  704.  A  witness  may  refresh  his 
memory  from  a  copy  of  the  original  memo- 
randum which  had  been  made  by  him  or 
under  his  direction  at  the  time  the  event 
occurred — Welch  v.  Greene  (R.  I.)  54  Atl.  54. 

26.  Alabama  &  V.  R.  Co.  v.  Sol  Fried  Co. 
(Miss.)  33  So.  74;  Gross  v.  Scheel  (Neb.)  93 
N.  W.  418.  A  cash  register  memorandum 
may  be  introduced  as  detailed  statement  of 
items  where  the  witness  testifies  to  its  cor- 
rectness— Gross  v.  Scheel  (Neb.)  93  N.  W. 
418.  Books  or  papers  used  by  a  witness  to 
refresh  his  memory  do  not  become  primary 
evidence  unless  the  opposing  party  makes 
them  so  by  cross  examination  as  to  the  en- 
tries— McKeen  v.  Providence  County  Sav. 
Bank  (R.  I.)  54  Atl.  49.  Where  a  witness 
testifies  fully  to  a  fact  and  his  memory  is 
perfect,  and  his  testimony  is  not  impeached 
on  cross  examination,  memorandum  prepared 
by  him  will  not  be  received — Zwangizer  v. 
Newman,  83  N.  Y.  Supp.  1071.  The  admis- 
sion of  the  entire  memorandum  may  not  be 
required.  Where  a  member  of  the  grand 
jury  who  acted  as  secretary,  when  called  on 
to  impeach  certain  w^itnesses,  refreshed  his 
memory  from  stenographic  notes  taken  by 
him  of  proceedings  taken  before  the  grand 
jury,  it  was  not  error  to  refuse  to  allow 
all  such  notes  to  be  read  to  the  Jury,  coun- 
sel not  having  asked  to  see  the  notes  and 
cross  examine  upon  them — People  v.  Sals- 
bury  (Mich.)  96  N.  W.  936.  It  being  admit- 
ted that  an  absent  witness  would  swear  to  a 
certain  fact  does  not  authorize  the  admis- 
sion of  books  with  which  he  could  hav'e 
refreshed  his  memory — McKeen  v.  Provi- 
dence County  Sav.  Bank   (R.  I.)   54  Atl.   49. 

27.  It  is  within  the  discretion  of  the  trial 
judge  to  appoint  an  interpreter  for  a  wit- 
ness claiming  inability  to  talk  English  (Code 
Civ.  Proc.  §  1884) — People  v.  Morine  (Cal.) 
72  Pac.  166;  Brzozowski  v.  National  Box  Co... 
104  111.  App.  338.  A  case  will  not  be  re- 
versed because  a  witness  testified  'i  a  for- 
eign tongue  where  it  Is  not  claimed  that  hl» 
testimony  was  not  correctly  Interpreted — 
Commonwealth  v.   Greason.  204  Pa.   64. 


CROSS-EXAMINATION, 


1169 


§  2.  Cross-examination}'^  Limitation  to  scope  of  direct  examination. — As 
a  general  rule  a  party  has  no  right  to  cross-examine  a  witness  without  leave  of 
court  as  to  any  facts  or  circumstances  not  connected  with  matters  testified  to  on 
his  direct  examination/^  and  where  this  is  done  the  witness  becomes  the  witness 
of  the  cross-examiner  and  he  is  bound  by  the  evidence  adduced.^^  Wliere  a  por- 
tion of  a  conversation  is  testified  to  on  direct,  the  cross-examiner  may  ask  for  the 
remainder,""  and  where  a  part  of  a  conversation  is  called  out  by  cross-examination, 
the  opposite  party  may  call  for  the  entire  conversation.^*  A  subscribing  witness 
called  to  testify  as  to  the  execution  of  a  will  may  be  cross-examined  on  the  whole 
case.^^ 

Limitation  to  issues. — Subject  to  many  exceptions,  principally  as  to  testing 
memory  or  attacking  credibility,  the  witness  should  not  be  cross-examined  as  to 
matters  irrelevant  to  the  issues,^®  and  may  not  be  impeached  for  answers  to  such 


28.  Golibart  v.  Sullivan,  30  Ind.  App.  428; 
Birmingham  R.  &  Elec.  Co.  v.  Jackson,  136 
Ala.  279;  Lisker  v.  O'Rourke  (Mont.)  72  Pac. 
416;  Union  Life  Ins.  Co.  v.  Jameson  (Ind. 
App.)  67  N.  E.  199;  State  v.  King  (Iowa)  96 
N.  W.  712. 

29.  Neifeld  v.  State,  23  Ohio  Circ.  R.  246; 
Carle  v.  People,  200  111.  494.  An  answer  that 
the  witness  had  been  a  married  man  for  21 
years  is  not  open  to  the  objection  that  it 
was  not  responsive  to  the  question  "You 
have  been  a  railroad  man  for  30  years  and 
have  not  been  affected  with  a  venereal  dis- 
ease?"— International,  etc.,  R.  Co.  v.  Collins 
(Tex.  Civ.  App.)  75  S.  W.  814.  Where  the 
witness'  answer  tended  to  support  a  con- 
tention as  to  the  excessive  speed  of  street 
cars  it  was  held  competent  though  not 
strictly  responsive — Reagan  v.  Manchester 
St.  R.   (N.  H.)    56  Atl.   314. 

30.  The  statutory  right  to  examine  an  ad- 
verso  party  as  on  cross  examination  is  dis- 
cussed   in   §   1,   ante. 

31.  McKnight  v.  United  States  (C.  C.  A.) 
122  Fed.  926:  Rudd  v.  Dewey  (Iowa)  96  N. 
W.  973;  Goldstein  v.  Morgan  (Iowa)  96  N. 
W.  897;  Mock  v.  Garson,  84  App.  Div.  (N.  T.) 
65;  Peaden  v.  State  (Fla.)  35  So.  204;  Black 
V.  Webber  (Xeb.)  96  N.  W.  606;  Sheldon  v. 
Bigelow,  118  Iowa,  5S6;  State  v.  FuUerton, 
90  Mo.  App.  411;  Sauntry  v.  United  States  (C. 
C.  A.)  117  Fed.  132;  Commonwealth  v.  Scou- 
ton,  20  Pa.  Super.  Ct.  503;  Jordan  v.  Seattle, 
30  Wash.  298,  70  Pac.  743;  Blauvelt  v.  Dela- 
ware, etc.,  R.  Co.  (Pa.)  55  Atl.  857;  Glenn  v. 
Philadelphia,  etc..  Traction  Co.  (Pa.)  55  Atl. 
860;  Rogers  v.  State  (Tex.  Cr.  App.)  71  S. 
W.  18.  A  witness  testifying  merely  to  the 
construction  of  a  bridge  and  a  displacement 
discovered  after  an  injury  to  it,  may  not  be 
asked  on  cross  examination  as  to  the  effect 
of  the   impact   of  a   boat   against   the   bridge 

Hopper    V.    Empire    City    Subway    Co.,    78 

App  Div.  (N.  T.)  637.  One  who  testifies 
mer(5ly  as  to  the  length  of  time  a  piece  of 
machinery  has  been  in  use,  may  not  on 
cro<?s  examination  be  asked  as  to  injuries 
caused  to  others  by  the  machinery  in  ques- 
tion—Duntley  V.  Inman,  42  Or.  334,  70  Pac. 
529  In  an  action  against  a  railway  com- 
nanv  for  a  crossing  accident,  an  engineer 
testifying  that  he  made  a  report  at  the  time, 
mav  not  on  cross  examination  be  asked  as  to 
negligence  at  other  times  and  that  on  one 
such  occasion  he  made  no  report-Texas  &  P. 
R  Co  V.  Meeks  (Tex.  Civ.  App.)  74  S  W. 
329  Where  in  an  action  on  notes  It  is 
shown    that    they   had   been   pledged   by   the 

Curr.  Law — 74. 


payee  and  Indorsed  to  plaintiff,  and  the  de- 
fendant on  direct  examination  of  plaintiff 
had  inquired  into  the  circumstances  under 
which  the  notes  were  taken,  it  is  proper  on 
cross  examination  to  allow  plaintiff  to  show 
witness  the  note  for  which  the  notes  sued  on 
were  pledged  as  security  and  admit  the 
same  in  evidence — Black  v.  First  Nat.  Bank, 
96  Md.  399.  Under  a  procedure  allowing  an 
accused  to  make  a  supplemental  statement 
to  the  jury,  he  may  be  cross  examined  as  to 
a  matter  to  which  his  attention  is  directed 
by  his  counsel — Walker  v.  State,  116  Ga. 
537.  Defensive  matter  may  not  be  drawn 
from  the  witness  (Freehill  v.  Hueni,  103  111. 
App.  118;  State  v.  Bailey,  31  Wash.  89,  71 
Pac.  715)  and  if  it  is  the  party  calling  the 
witness  may  discredit  him  as  to  such  mat- 
ter— Hubner  v.  Metropolitan  St.  R.  Co.,  77 
App.  Div.    (N.  Y.)    290. 

32.  Deutschmann  v.  Third  Ave.  R.  Co.,  78 
App.  Div.  (X.  Y.)  413;  Goldstein  v.  Morgan 
(Iowa)  96  N.  W.  897;  Sheldon  v.  Bigelow, 
118  Iowa,  586;  Barton  v.  Bruley  (Wis.)  96  N. 
W.   815. 

33.  People  V.  Rich  (Mich.)  94  N.  W.  375; 
Glenn  v.  Philadelphia,  etc..  Traction  Co. 
(Pa.)  55  Atl.  860.  Where  the  witness  who 
drew  a  will,  testified  that  a  certain  inventory 
contained  a  true  list  of  testator's  property, 
he  may  on  cross  examination  be  allowed  to 
state  that  the  testator,  the  day  the  will  was 
executed,  told  him  that  he  had  agreed  to 
sell  certain  stock  contained  in  the  inventory 
and  would  deposit  the  proceeds  in  a  certain 
bank,  and  that  the  witness  had  the  bank 
book  showing  that  deposit,  as  the  conversa- 
tion testified  to  enabled  the  witness  to  iden- 
tify the  sum  deposited  as  the  proceeds  of 
the  sale — Berry  v.  Safe  Deposit  &  Trust  Co,. 
96  Md.  45. 

34.  Hudson  v.  State  (Ala.)  34  So.  854. 

35.  O'Connell  v.  Dow,  182  Mass.  541. 

36.  Cabell  v.  McKlnney  (Ind.  App.)  68  N. 
E.  601;  State  v.  King  (Iowa)  96  N.  W.  712; 
Hoover  v.  State  (Ind.)  68  N.  E.  591;  Edwards 
V.  State  (Neb.)  95  N.  W.  1038;  Carlson  v. 
Holm  (Neb.)  95  N.  W.  1125.  On  cross  exam- 
ination of  a  witness  as  to  injuries  received 
in  a  street  car  accident  and  testifying  on 
cross  examination  as  to  injuries  to  himself 
by  the  company  at  another  time,  he  may  not 
be  asked  as  to  whether  he  presented  a  claim 

Daum  V.  North  Jersey  St.  R.  Co.  (N.  J.  Sup.) 

54  Atl.  221.  On  a  prosecution  for  an  assault, 
the  prosecuting  witness  having  testified  that 
he    had   some   difficulty   with   defendant   over 


1170 


EXAMINATION  OF  WITNESSES. 


§  2 


questions.^'^  The  test  whether  a  matter  inquired  about  on  cross-examination  is 
colhiteral  is,  whether  the  cross-examining  party  would  be  entitled  to  prove  it  as  a  part 
of  his  case  tending  to  establish  his  plea.^^ 

Examination  going  to  credibility  of  witness. — A  large  discretion  is  left  with 
the  trial  court  as  to  the  extent  of  cross-examination  to  test  the  credibility  and 
accuracy  of  witnesses/®  and  much  latitude  is  allowed  in  the  examination  of  par- 
ties testifying  in  their  o'\\ti  behalf/^  persons  accused  of  crime/^  and  prosecuting 


some  mining-  claims,  it  was  proper  to  exclude 
a  question  on  cross  examination  as  to  wheth- 
er he  had  made  re-locations  as  it  might  have 
misled  the  jury  into  seeking  for  an  excuse 
to  justify  the  assault — State  v.  McCann  (Or.) 

72  Pac.  137.  In  Texas,  one  suing  for  per- 
sonal injuries  may  not  be  asked  on  cross 
examination  whether  he  refused  to  submit 
to  a  physical  examination — Austin,  etc.,  R. 
Co.  V.  Cluck  (Tex.  Civ.  App.)  73  S.  W.  569; 
Gulf,  etc.,  R.  Co.  V.  Brooks   (Tex.  Civ.  App.) 

73  S.  W.  571.  A  retired  partner  testifying  as 
to  the  relations  of  a  new  partner  of  the  firm 
with  the  old  firm  and  the  new,  may  not  on 
cross  examination  be  asked  questions  tend- 
ing to  show  false  statements  of  witness  to 
other  partners  with  reference  to  financial 
condition  of  the  firm  on  his  retirement,  that 
natter  being  a  collateral  and  immaterial 
Issue — Sheldon  v.  Bigelow.  118  Iowa,  586. 
In  an  action  for  damages  caused  by  an  over- 
flow, a  witness  may  not  be  cross  examined 
as  to  the  manner  in  which  ha  irrigated  his 
land,  or  whether  he  promised  his  tenant  to 
protect  him  from  water  by  a  levee — Crossen 
V.  Grandy,  42  Or.  282,  70  Pac.  906.  In  a 
prosecution  for  keeping  a  disorderly  house 
the  court  properly  refused  to  permit  cross 
examination  of  a  state's  witness  as  to  wheth- 
er in  his  opinion  the  fact  that  certain  per- 
sons of  low  character  who  frequented  the 
place  were  relatives  of  defendant,  would  ex- 
cuse him  in  receiving  them — State  v.  Bab- 
cock  (R.  I.)  55  Atl.  685.  On  cross  examina- 
tion of  a  surgeon  testifying  as  to  his  con- 
clusion in  regard  to  a  disease,  the  court  prop- 
erly excluded  a  question  as  to  whether  other 
surgeons  might  not  arrive  at  a  different 
conclusion — Root  v.  Boston  El.  R.  Co.  (Mass.) 
67  N.  E.  365.  Where  the  witness  testifies  to 
an  immaterial  matter,  he  may  not  be  fur- 
ther questioned  as  to  what  he  said  in  re- 
gard to  the  same  immaterial  matter — Hutch- 
Ins  v.   Missouri  Pac.  R.  Co.,   97  Mo.  App.   548. 

37.  Chicago,  etc.,  R.  Co.  v.  Stewart,  104 
111.  App.  37;  Lankaster  v.  State  (Tex.  Cr. 
App.)  72  S.  W.  388;  George  Burke  Co.  v. 
Fowler  (Neb.)  93  N.  W.  760;  State  v.  Pucca 
(Del.)  55  Atl.  831;  Trussell  v.  "Western  Penn- 
sylvania Gas    Co.,  20  Pa.  Super.  Ct.   423. 

38.  George  Burke  Co.  v.  Fowler  (Neb.)  a3 
N.  W.   760. 

39.  Jennings  v.  Rooney  (Mass.)  67  N.  E. 
665;  Commonwealth  v.  Foster,  182  Mass.  276; 
Root  V.  Boston  El.  R.  Co.  (Mass.)  67  N.  E. 
365;  Gatzmeyer  v.  Peterson  (Neb.)  94  N.  W. 
974;  Glenn  v.  Philadelphia,  etc.,  Traction  Co. 
(Ps.)  55  Atl.  860;  Guertin  v.  Hudson,  71  N.  H. 
JBOo. 

40.  Bassett  v.  Glass,  fi5  Kan.  500,  70  Pac. 
S36.  Where  the  plaintiff  testifies  to  the  re- 
moval of  a  corner  stone  he  may  be  cross- 
e.r.anilned  to  show  acquiescence — Grogan  v. 
I.eike,  22  Pa.  Super.  Ct.  59.  In  an  action  by 
an  officer  of  a  corporation  for  services  per- 
formed  outside  of  his   regular   duties,   where 


he  testifies  as  to  the  services  performed  out- 
side his  duties,  he  may  be  asked  as  to  the 
duties  of  his  position;  and  w^here  he  testifies 
that  he  had  nothing  to  do  with  the  prepara- 
tion of  certain  reports,  he  may  be  asked 
who  did  prepare  the  report  in  question  and 
other  similar  reports;  and  where  he  testi- 
fies as  to  certain  departmental  services, 
cross  examination  Intended  to  show  that  the 
subject  was  generally  before  the  oflicers  of 
the  company  and  one  In  which  they  took 
part  and  rendered  services,  is  proper — Stout 
V.  Security  Trust  &  Life  Ins.  Co.,  82  App. 
Div.  (N.  T.)  129.  In  an  action  for  the  bal- 
ance of  an  account,  defendant  may  cross 
examine  plaintiff  as  to  certain  of  the  items 
sued  on  and  a  refusal  of  the  court  to  allow 
such  cross  examination  is  erroneous — Smith 
v.  Castle,  81  App.  Div.  (N.  Y.)  638.  Where 
in  an  action  for  the  value  of  goods,  plaintiff 
in  his  own  behalf  testified  as  to  their  value, 
defendant  may  have  plaintiff  identify  certain 
of  the  articles  shown  him  on  cross-examina- 
tion and  ask  him  what  value  he  placed  on 
such  articles — Lemon  v.  McBride  (Mich.)  96 
N.  W.  453.  Where  defendant  alleged  an  al- 
teration of  a  chattel  mortgage  by  inserting 
after  the  description  the  words  "in  her  store 
house"  she  may  on  cross  examination  be 
asked  if  she  did  not  intend  to  mortgage 
goods  in  her  store  house — Cabell  v.  McKin- 
ney  (Ind.  App.)  68  N.  E.  601.  On  cross  ex- 
amination of  plaintiff  in  an  action  for  assault 
she  may  be  questioned  as  to  her  character 
as  a  lewd  woman — Osborne  v.  Seligman,  39 
Misc.  (N.  Y.)  811.  In  an  action  on  a  note 
against  which  an  alteration  is  averred  where 
plaintiff  alleges  transfer  of  the  note  for 
value  before  maturity,  the  defendant  on 
cross  examination  of  plaintiff  may  dispute 
the  testimony,  that  the  payee  had  assigned 
before  maturity,  and  show  why  he  had  not 
received  payment  and  dispute  that  the  note 
had  not  been  in  his  possession  as  testified  by 
him — Reese  v.  Bell,  138  Cal.  XIX,  71  Pac.  87. 
A  party  denying  his  signature  to  a  note 
may  be  cross  examined  as  to  his  ability  to 
identify  his  own  handwriting — Brown  v. 
Woodward,  75  Conn.   254. 

41.  Accused  testifying  in  his  own  behalf 
may  be  cross  examined  as  to  former  crim- 
inal delinquencies — Williams  v.  United  States 
(Ind.  T.)  69  S.  W.  871;  State  v.  Callian.  109 
La.  346;  State  v.  Blitz,  171  Mc.  530;  Powell  v. 
State  (Tex.  Cr.  App.)  70  S.  W.  21S;  Jones  v. 
State  (Tex.  Cr.  App.)  71  S.  W.  962;  McDonald 
V.  State  (Tex.  Cr.  App.)  72  S.  ^^^  ."^.SS.  The  par- 
ty on  trial  for  keeping  a  disorderly  house,  may 
on  cross  examination  as  affecting  his  credi- 
bility, be  asked  if  he  has  not  previously  been 
convicted  of  the  same  offense — State  v.  Bab- 
cock  (R.  I.)  55  Atl.  685.  The  accused  on  his 
cross  examination  may  be  asked  as  to  his 
denial  of  the  killing,  as  to  his  reasons  there- 
for and  also  as  to  his  reasons  for  concealing 
the  offense — Rogers  v.   State   (Tex.  Cr.   App.) 


§2 


CROSS-EXAMINATION. 


1171 


witiiesses.*2  The  witness  may  be  asked  as  to  previous  contr.idictory  statpments," 
and  inconsistencies  between  his  present  and  previous  testimony."  Bias  or  inter- 
est of  the  witness  may  be  inquired  into,"  and  a  witness  may  be  properly  asked 


71  S.  W.  18.  Where  accused  had  not  offered 
evidence  of  good  character,  the  court  should 
not  permit  the  state  on  cross  examination, 
to  ask  him  as  to  a  previous  arrest  and  then 
strike  out  that  part  of  his  affirmative  answer 
in  which  he  stated  he  was  not  guilty  of  the 
offense  for  which  he  had  been  arrested — 
State  V.  Nussenholtz  (Conn.)  55  Atl.  589. 
Though  one  accused  may  not  be  compelled  to 
give  evidence  against  himself  yet  where  ha 
is  examined  in  chief  and  has  testified  to  his 
life,  occupation  and  habits  from  boyhood  he 
may  be  examined  with  reference  thereto  for 
the  purpose  of  affecting  his  credibility,  the 
state  being  bound  by  his  answers — State  v. 
Melvern  (Wash.)  72  Pac.  489.  Where  the 
code  provides  that  a  statement  shall  not 
be  under  oath,  an  accused  sworn  on  such  ex- 
amination may  not  on  cross  examination  on 
the  trial  be  asked  whether  his  testimony  on 
direct  examination  was  not  contradictory  of 
such  statement — State  v.  Parker,  132  N.  C. 
1014. 

42.  Where  a  prosecutrix  testifies  to  com- 
plaints to  different  persons  and  they  testify 
In  corroboration,  defendant  has  a  right  to 
cross  examine  as  to  the  details  of  the  com- 
plaints— State  V.  McCoy,  109  La.  682.  An 
abuse  of  tliis  discretion  will  work  a  reversal 
— O'Connell  v.  Pennsylvania  Co.  (C.  C.  A.)  118 
Fed.  989. 

43.  Alabama  Great  Southern  R.  Co.  v. 
Brooks,  135  Ala.  401;  People  v.  Adams,  137 
Cal.  580,  70  Pac.  662;  People  v.  Payne  (Mich.) 
91  N.  W.  739;  State  v.  Broadbent,  27  Mont. 
342,  71  Pac.  1.  Where  a  witness  is  asked  as 
to  whether  he  has  not  made  inconsistent 
statements.  It  is  not  necessary  that  the 
times,  places  and  persons  present  should  be 
stated,  these  facts  only  being  required  where 
it  is  sought  to  impeach  the  witness — State  v. 
Burrell,  27  Mont.  282,  70  Pac.  982.  One  tes- 
tifying that  nothing  was  said  as  to  the  price 
to  be  paid  for  an  article  may  be  asked  if 
it  was  not  agreed  that  the  price  should  be 
the  same  as  that  paid  at  a  certain  market — 
Smith  v.   Castle,   81   App.   Div.    (N.   Y.)    638. 

44.  Gilliland  v.  R.  G.  Dun  &  Co.,  136 
Ala.  327.  As  preliminary  to  impeachment 
a  witness  may  be  asked  whether  he  has  not 
on  a  previous  trial  made  a  statement  contra- 
dictory to  his  present  testimony — Palmer  v. 
Burleigh  (Neb.)  93  N.  W.  1049.  Limiting  ex- 
amination of  witness  as  to  testimony  of  wit- 
ness in  former  trial — McCoy  v.  Munro,  76 
App.  Div.  (N.  Y.)  435.  In  an  action  for  the 
death  of  a  child  in  a  street  railroad  acci- 
dent, where  it  is  claimed  by  plaintiff  that 
the  motorman  was  not  looking  ahead  and 
this  prevented  his  stopping  the  car  in  time, 
and  the  defendant  claimed  that  the  motor- 
man  was  looking  ahead  and  the  child  ran  in 
front  of  the  car,  plaintiff  on  cross  examina- 
tion of  the  motor  man  may  inquire  particu- 
larly as  to  his  methods  of  operating  the  car 
at  particular  places  and  as  to  his  testimony 
on  a  former  trial  and  whether  or  not  the 
present  version  differed  from  his  previous 
testimony — Willsen  v.  Metropolitan  St.  R. 
Co..  80  App.  Div.  (N.  Y.)  98.  Plaintiff  may 
read  to  a  witness  for  defendant  his  testimony 
on  a  former  trial  as  reported  by  the  stenog- 


rapher— Southern  R.  Co.  v.  Shelton,   136  Ala. 
191.     In   an   action   for   conversion,   the  court 
properly  refused  to  allow  defendant  to  intro- 
duce   plaintiff's    answers    to    interrogatories 
on    plaintiff's    cross-examination    before    de- 
fendant's side  of  the  case  had  been  reached, 
the  court  having  stated  that  plaintiff  might 
be  asked  on  cross-examination   for   the   pur- 
pose   of    contradiction,    whether    certain    re- 
sponses had  been  made  to  the  interrogatories 
— Wilson    V.   Hoffman,    123    Fed.    984.     Where 
it   is   desired   to    impeach   a  witness   by   con- 
tradictory  statements   his   attention   must  be 
called    to    the    conversation    on    which    It    is 
proposed    to   contradict   him   and   also    to  th« 
time,   place   and   person    to   whom   he   is  sup- 
posed   to    have    made   such    statements — Gor- 
don v.  Funkhouser   (Va.)   42  S.  E.  677;  Duna- 
fon  V.  Barber  (Neb.)   92  N.  W.  198.     Does  not 
obtain   as   to   written   statements — Hanlon    v. 
Ehrich,   80  App.  Div.    (N.   Y.)    359.     See,   also. 
Witnesses  as  to  foundation  for  Impeachment. 
45.     Rarden   v.   Cunningham,   136   Ala.    263; 
Houston    Biscuit    Co.    v.    Dial,    135    Ala.    168; 
Styles  V.  Village  of  Decatur  (Mich.)   91  N.  W. 
622;  State  v.  Broadbent,  27  Mont.  342,  71  Pac. 
1;  New  Omaha  Thomson-Houston  Elec.  Light 
Co.  v.  Johnson    (Neb.)    93  N.   W.   778;   Hedlun 
V.  Holy  Terror  Min.  Co.   (S.  D.)    92  N.  W.   31. 
A  witness  may  be  examined  as  to  collateral 
matters  where  such  examination  goes  to  the 
question    of    the    witness'    Interest    or    bias — 
Kizer   v.   Walden,    198    111.    274.     A   physician 
testifying  in  an  action  against  a  street  rail- 
road for  personal  injuries,  admitting  that  he 
had  been  sent  by  the  company  to  the  injured 
person,    but    denying    that    he    was    its    phy- 
sician,   may   be   asked    on    cross    examination 
whether    he   had    not    frequently   visited   and 
examined    persons    hurt    in    accidents    on    the 
company's   line   as   its   representative — Guck- 
avan  v.   Lehigh  Traction  Co.,   203  Pa.  521.     A 
defendant     in    ejectment     claiming    to     have 
taken     possession     and     made    valuable     im- 
provements   relying    on    an    oral    contract    of 
sale  and   plaintiff's  assurance  that  he   would 
make  deed  on  obtaining  patent,  may  be  asked 
on    cross    examination    whether    he    had    not 
contributed  a  fund  for  the  purpose  of  break- 
ing  the   patent   under   which   plaintiff  held — 
Cobban  v.  Hecklen,  27  Mont.  245,  70  Pac.  805. 
Where    a   witness    in    a   prosecution    for   ma- 
licious   injury    testifies    that    defendant    had 
nothing  to  do  with  the  commission  of  the  of- 
fense and  that  the  witness  had  no  interest  in 
shielding  defendant,  he  may  on  cross-exami- 
nation be  asked  why  he  did  not  make  any  dis- 
closure   of    the    evidence — People    v.    Boren, 
139  Cal.  210,  72  Pac.  899.     A  real  estate  dealer 
testifying  as  to  the  amount  he  had   received 
from  a  city  for  services  in  making  investiga- 
tions in  special  assessment  proceedings,  may 
not  on  cross  examination,  be  asked  as  to  how 
his    Income    from    his    real    estate    business 
compared    with    his    income    from    the   city — 
jordon    v.    Chicago,    201    111.    623.      On    cross 
sxamlnation    of  a  physician   participating   in 
the  procuring  of  a  release  he  may  be  asked 
whether  he  had  not  witnessed  other  releases 
^f  the   same  character  for  plaintiff — Dorsett 
V.    Clement-Ross    Mfg.    Co.,    131    N.    C.    254. 
Where  the  accuracy  of  a  map  used  In  a  pros- 


1172 


EXAMINATION  OF  WITNESSES. 


§  2 


as  to  the  reasons  for  living  under  an  assumed  name,*^  as  to  violation  of  a  rule 
against  talking  about  a  case/^  as  to  the  binding  efEect  of  his  oath  as  a  witness.*" 
The  witness  may  be  asked  whether  he  is  as  positive  as  to  every  other  fact  testified 
to  by  him  as  he  is  to  the  particular  fact  asked  about."  Cross-examination  beyond 
reasonable  limits  to  test  credibility  or  show  bias  will  not  work  reversal  where 
the  witness  gave  no  testimony  pertinent  to  any  material  issue  in  the  case.^° 

As  to  prohahility  of  testimony. — A  large  latitude  is  allowed  the  cross-examiner 
in  testing  the  probability  of  the  direct  evidence,"  and  the  witness  may  be  asked 
as  to  knowledge  and  conduct  inconsistent  therewith,"  and  these  rules  have  been 
applied  to  witnesses  to  value  of  property,''^  witnesses  as  to  the  operation  of  trains,^* 
and  of  experts  generally.^^ 

Examination  as  to  documents. — Wliere  a  party  produces  his  books  of  original 
entry,  he  may  be  cross-examined  as  to  the  entries  without  any  subpoena  duces 
tecum.^^     A  cross-examiner  may  not  require  surrender  to  him  of  letters  and  notes 


ecution  for  murder  was  disputed,  It  is  proper 
on  cross  examination  of  tlie  witness  who 
made  the  map  to  aUow  defendant  to  show  the 
directions  given  by  the  county  attorney  for 
its  preparation — State  v.  Tighe,  27  Mont.  327, 
71  Pac.   3. 

4G.  A  woman  having  testified  for  a  party 
may  be  properly  asked  as  to  her  relation  with 
tlie  party,  and  as  to  her  reasons  for  living 
under  an  assumed  name,  the  cross-examina- 
tion tending  to  impeach  credibility — McCarty 
V.  Hartford  Fire  Ins.  Co.  (Tex.  Civ.  App.)  75 
S.  "W.  934. 

47.  Birmingham  R.  &  Elec.  Co.  v.  Ellard, 
135  Ala.  433. 

48.  In  this  case  a  Jew  was  asked  as  to 
the  binding  efEect  of  an  oath  taken  by  him 
with  his  hat  off — Birmingham  R.  &  Elec. 
Co.  V.  Mason  (Ala.)  34  So.  207. 

49.  Central  of  Ga.  R.  Co.  v.  Edmondson, 
135  Ala.  336.  The  rejection  by  a  court  of  a 
question  on  cross  examination,  whether  the 
witness'  recollection  by  reason  of  his  condi- 
tion was  the  same  on  all  answers  made  by 
him  as  on  a  certain  answer  just  made,  is 
within  the  court's  discretion — Zwangizer  v. 
Newman,  83  N.  Y.  Supp.  1071. 

50.  State  V.  King,  88  Minn.  175. 

51.  Shannon  v.  Castner,  21  Pa.  Super.  Ct. 
294.  On  cross  examination  of  a  witness  tes- 
tifying as  to  the  habits  of  an  insured  as  to 
sobriety,  may  be  asked  on  cross-examination 
as  to  complaints  made  by  insured  to  the  wit- 
ness of  pains  in  his  head  and  chest — Union 
Life  Ins.  Co.  v.  Jameson  (Ind.  App.)  67  N.  E. 
199.  One  testifying  to  an  act  and  that  it 
was  witnessed  by  others  may  be  asked  to 
name  some  of  the  parties — Bigcraft  v.  Peo- 
ple, 30  Colo.  298,  70  Pac.  417. 

52.  Welch  V.  Greene  (R.  I.)  54  Atl.  54. 
On  cross  examination  of  plaintiff  suing  for 
personal  injuries  he  may  be  asked  whether 
a  few  months  earlier  he  had  met  with  a 
serious  accident  without  saying  anything  to 
any  one  about  it — Brace  v.  St.  Paul  City  R. 
Co.,  87  Minn.  292.  One  testifying  that  an 
elevator  shaft  was  not  dangerous  may  be 
asked  on  cross  examination  whether  other 
persons  had  not  fallen  down  the  shaft — Reid 
V.  LInck  (Pa.)  55  Atl.  849.  A  foreman  of  a 
flection  gang  testifying  that  he  had  given 
orders  that  none  of  the  men  should  stand  in 
front  of  the  lever  to  pull  it.  may  be  asked 
on  cross  examination  as  to  whetlier  he  made 


any  objection  to  the  way  in  which  the  men 
were  operating  the  car  or  gave  any  orders  as 
to  the  position  they  should  occupy  on  the 
occasion  of  tlie  accident — Western  R.  v.  Ar- 
nett  (Ala.)  34  So.  997. 

53.  Witnesses  asked  to  fix  the  value  of 
property  in  condemnation  proceedings,  may 
be  asked  on  cross  examination  as  to  the 
methods  by  v/hich  they  arrived  at  their  con- 
clusions, what  elements  of  damage  tliey  con- 
sidered and  the  reasons  for  their  opinions — 
Seattle  &  M.  R.  Co.  v.  Roeder,  30  Wash.  244. 
70  Pac.  498.  Where  party  in  an  action  for 
damages  caused  by  the  falling  of  a  building, 
testifies  in  cliief  as  to  the  value  of  different 
items  of  property  in  question  by  reference 
to  invoice  made  by  himself  and  wife  with 
view  of  selling  an  interest  in  tlie  same,  he 
may  be  asked  on  cross  examination  as  to  the 
fair  market  value  of  the  property  at  the  time 
of  the  injury — Payne  v.  Moore  (Ind.  App.) 
67  N.  E.  1005. 

54.  An  operative  testifying  as  to  his 
manner  of  starting  a  car,  may  be  asked  on 
cross  examination  how  he  usually  started  his 
car  from  a  station — Birmingham  R.  &  Elec. 
Co.  v.  Ellard,  135  Ala.  433.  Where  a  brake- 
man  has  testified  as  to  manner  in  wliicli 
train  was  stopped  and  that  it  was  stopped 
without  any  unusual  jerk,  he  may  be  asked 
on  cross  examination  as  to  the  difference 
between  a  long  and  short  train  with  refer- 
ence to  stopping  it,  and  whether  if  there  is 
air  on  two-thirds  of  the  cars,  he  would 
have  to  put  on  as  many  brakes  as  if  he  had 
air  on  only  a  part  of  it — Southern  R.  Co.  v. 
Crowder,   135   Ala.   417. 

5.'.  Belding  v.  Archer,  131  N.  C.  287;  Mc- 
Govern  v.  Smith,  75  Vt.  104;  Birmingham  R. 
&  Elec.  Co.  v.  Ellard.  135  Ala.  433.  And 
authorities  holding  their  views — State  v. 
Greenleaf,  71  N.  H.  606.  On  cross  examina- 
tion of  a  physician  testifying  as  to  numer- 
ous diseases  affecting  decedent,  he  may  be 
properly  asked  on  cross  examination  if  he 
treated  decedent  for  all  of  them — Ellis  v. 
Baird  (Ind.  App.)  67  N.  E.  960.  Where  a 
physician  as  a  witness  in  a  will  contest,  tes- 
tifies on  direct  that  testator  a  year  before 
the  execution  of  the  will  sustained  a  fal) 
which  shocked  his  nervous  system  for  a  day 
or  two,  he  may  on  cross  examination  be 
asked  whether  the  shock  In  any  way  im- 
paired his  mind — Berry  v.  Safe  Deposit  & 
Trust   Co.,    96   Md.   45. 


§  4 


REDIRECT;   RECALLING. 


1173 


used  by  the  examiner."  A  witness  denying  his  signature,  on  being  asked  if  cer- 
tain signatures  other  than  that  on  the  instrument  in  question  were  his,  is  not 
entitled  to  see  the  instrument  to  which  they  are  attached/^ 

Character  witnesses  may  be  asked  as  to  specific  acts  of  the  person  as  to  whom 
they  testify/''  the  cross-examiner  being  bound  by  the  answers.^" 

§  3.  Redirect  examination. — The  redirect  examination  is  properly  limited  to 
matter  drawn  from  the  witness  on  cross-examination,  and  the  examiner  may  ask 
questions  allowing  an  explanation  of  the  sense  and  meaning  of  expressions  used 
on  cross-examination."  This  does  not  allow  the  witness  to  put  his  own  inter- 
pretation on  his  testimony.«2  Where  a  witness  on  cross-examination  has  been 
asked  as  to  a  former  statement  made  by  him,  the  party  calling  him  may  re-ex- 
amine him  as  to  the  same  matter  and  in  rebuttal  introduce  evidence  to  suDDort 
him.«^  ^^ 

§  4.  Recalling  of  witness  for  further  examination. — It  is  within  the  discre- 
tion of  the  trial  court  to  allow  witness  to  be  recalled  for  further  examination  at 
the  instance  of  either  party."  It  is  properly  allowed  where  its  purpose  is  to  an- 
swer matter  introduced  by  the  opposing  party  as  part  of  his  case.*'^ 


56.  Elliott  V.  Moreland  (N.  J.  Law)  54  All. 
224. 

57.  Where  letters  written  by  the  payee  to 
the  maker  of  a  note,  were  produced  by  the 
state  in  a  prosecution  of  the  payee  for  for- 
gery and  defendant  had  the  full  benefit  there- 
of, the  court  properly  refused  to  compel  a 
delivery  of  the  letters  to  defendant's  counsel 
during  his  cross  examination  of  the  maker 
of  the  note — State  v.  Donovan  (Vt.)  55  Atl. 
611.  Where  the  prosecuting  attorney  had 
possession  of  notes  of  testimony  taken  before 
the  grand  jury  from  which  he  questioned 
defendant's  witness,  It  was  not  error  to  re- 
fuse to  allow  defendant's  counsel  to  ex- 
amine these  notes — People  v.  Salsbury 
(Mich.)  96  N.  W.  936.  Where  a  party,  for  the 
purpose  of  showing  mental  incapacity,  in- 
troduces a  paper  on  which  testator  had  made 
Incorrect  calculations  he  may  on  cross  ex- 
amination be  requited  to  produce  another 
paper  on  which  the  calculations  were  cor- 
rect— Berry  v.  Safe  Deposit  &  Trust  Co.,  96 
Md.  45.  The  opposite  party  may  examine 
memorandum  used  by  witness  to  refresh  his 
memory — Volusia  County  Bank  v.  Bigelow 
(Fla.)  33  So.  704;  Schwickert  v.  Levin,  76 
App.  Dlv.  (N.  Y.)   373,  12  Ann.  Cas.  96. 

58.  Brown  v.  W^oodward,  75  Conn.  254. 

59.  On  cross  examination  of  a  character 
witness  testifying  that  he  had  heard  that 
the  witness  sought  to  be  impeached  had  been 
Indicted  he  may  be  asked  as  to  the  court  in 
which  the  indictment  was  found — Bohlman 
V.  State.  135  Ala.  45.  Where  defendants  of- 
fered evidence  as  to  their  reputation  for 
honesty  and  integrity,  the  witnesses  on  cross 
examination  may  be  asked  whether  they  did 
not  know  that  the  defendants  were  not  gen- 
erally reputed  to  be  gamblers — State  v. 
Thornhill  (Mo.)  74  S.  W.  832.  Where  on 
cross  examination  of  a  witness  as  to  the 
character  of  deceased,  he  testifies  as  to  some 
difficulties  deceased  had  been  involved  in  at 
one  time,  he  may  not  be  asked  whether  he 
had  been  prosecuted  therefor — Bearden  v. 
State   (Tex.  Cr.  App.)   73  S.  W.   17. 

60.  Barnes  v.  Commonwealth,  24  Ky.  L. 
R.  1143.  70  S.  W.   827. 

61.  Merrell  v.  State  (Tex.  Cr.  App.)  70  S. 
W.   979;  Commonwealth  v.   Carter   (Mass.)   66 


N.  E.  716.  A  claim  agent  in  the  prosecution 
of  a  party  for  false  pretences  in  obtaining 
settlement  of  a  claim,  on  cross  examination 
testifying  to  a  v/arning  that  he  had  received 
from  some  unknown  person,  that  the  in- 
juries claimed  were  received  prior  to  the  ac- 
cident for  which  the  railroad  company  was 
sued  may  on  re-direct  examination  be  per- 
mitted to  state  that  he  did  not  believe  the 
warning,  as  bearing  on  the  question  as  to 
whether  he  relied  on  defendant's  statement 
in  making  settlement — Commonwealth  v 
Burton  (Mass.)  67  N.  E.  419.  Where  on  cross 
examination  of  one  seeking  to  recover  for 
the  obstruction  of  an  elevated  road,  inquiry 
IS  made  as  to  the  effect  on  other  property,  the 
party  on  redirect  examination  may  fully  In- 
quire with  reference  thereto  but  he  cannot 
give  evidence  as  to  additional  property  not 
embraced  in  the  examination — Robinson  v 
New  York  El.  R.  Co.,  175  N.  Y.  219.  On  a 
criminal  prosecution,  a  prosecutrix  asked 
whether  the  act  had  not  been  committed  by 
others  and  who  answered  yes,  may  be  asked 
on  redirect  whether  the  statement  so  made 
was  true — Smith  v.  State  (Tex.  Cr.  App.)  74 
S.  W.  556.  A  witness  testifying  in  a  prose- 
cution of  a  distillery  company  for  creation 
of  a  nuisance  that  the  distillery  was  oper- 
rated  by  a  company  other  than  defendant 
may  explain  that  he  did  not  know  but  what 
it  had  been  changed  to  defendant — Kentucky 
Distilleries  &  Warehouse  Co.  v.  Common- 
wealth, 24  Ky.  L.  R.  2154,  73  S.  "W.  746.  In 
a  prosecution  for  keeping  a  disorderly  house 
allowing  state's  counsel  on  redirect  exam- 
ination to  ask  whether  it  was  since  the  last 
winter  that  the  witness  went  there,  is  not 
objectionable  as  allowing  the  state  to  cross 
examine  its  own  witness  and  this  where  the 
witness  was  uncertain  as  to  the  date  of  his 
visit — State  v.  Babcock   (R.  L)  55  Atl.  685. 

62.  Golibart  v.   Sullivan,  30  Ind.  App.   428. 

63.  Martin's  Adm'r  v.  Richmond,  etc  R 
Co.   (Va.)   44  S.  E.  695. 

64.  Dixon  v.  State,  116  Ga.  186.  The  court 
in  Its  discretion  may  allow  a  witness  who 
has  been  examined,  to  take  the  stand  a  sec- 
ond  time   after   conference   with    his    counsel 

and   correct   his    original    testimony Central 

of  Ga.  R.  Co.  V.  Duffey,  116  Ga.  346. 


1174 


EXAMINATION  OF  WITNESSES. 


§   5 


§  5.  Privilege  of  witness.— The  privilege  of  a  witness  to  refuse  to  answer 
questions  tending  to  criminate  him  is  secured  by  the  fifth  amendment  to  the  fed- 
eral constitution  and  the  constitutions  of  many  of  the  states,^^  and  may  not  be 
abrogated  by  statute.^^  The  privilege  is  secured  by  the  common  law.®*  A  con- 
stitutional provision  that  one  may  not  be  compelled  to  be  a  witness  against  him- 
self is  available  to  all  witnesses  and  is  not  limited  to  parties.**  The  privilege 
may  be  violated  by  orders  requiring  the  production  of  books/**  or  by  laws  com- 
pelling a  person  to  plead  or  deny  upon  oath  a  charge  involving  a  criminal  offense.'^ 
It  is  not  violated  by  asking  accused  to  stand  up  in  court  for  identification  by  the 
prosecuting  witness/^  nor  by  the  use  of  his  shoes  for  comparison  with  tracks  made 
by  the  person  committing  the  crime,"  nor  by  merely  requiring  a  witness  to  be 
s^vorn  before  the  grand  jury.^*  One  is  compelled  to  be  a  witness  against  himself 
by  a  prosecution  under  an  indictment  founded  on  his  own  involuntary  testimony  J* 
The  extent  to  which  the  privilege  may  be  invoked  rests  solely  with  the  witness/* 
and  the  privilege  being  a  personal  one  may  not  be  claimed  by  anotherJ^  A  wit- 
ness called  upon  to  testify  to  self-criminating  evidence  may,  where  his  privilege 
is  wrongfully  refused,  decline,  and  if  imprisoned  for  contempt,  may  obtain  re- 
dress bv  habeas  corpus.''^  If  he  yields,  he  may  save  his  exceptions  and  obtain  a 
reversal  of  tlie  judgment.'^* 


65.  Where  defendant  In  action  for  per- 
sonal injury  introduced  testimony  to  sliow 
that  plaintiff's  physical  condition  was  as  bad 
before  as  since  the  injury,  plaintiff  may  be 
recalled  as  to  her  condition  before  the  acci- 
dent—Birmingham R.  &  Elec.  Co.  V.  EUard. 
135  Ala.  433. 

66.  The  provision  In  the  federal  consti- 
tution is  not  extended  to  the  states  by  the 
fourteenth  amendment — People  v.  Wyatt,  39 
Misc.  (N.  Y.)  456.  There  is  no  such  prohibi- 
tion in  the  constitution  of  New  Jersey — State 
V.  Zdanowicz  (N.  J.  Err.  &  App.)  55  Atl. 
743. 

67.  The  constitutional  provision  that  no 
one  can  be  compelled  in  a  criminal  case  to 
be  a  witness  against  himself,  justifies  a 
witness'  examination  before  a  magistrate  on 
information  charging  another  with  keeping 
a  gambling  house,  to  refuse  to  give  evidence 
tending  to  incriminate  himself,  notwith- 
standing the  Penal  Code  provides  that  no 
person  shall  be  excused  from  giving  testi- 
mony upon  any  investigation  or  proceeding 
for  violation  of  the  chapter,  because  of  the 
tendency  of  the  evidence  to  convict  him  of 
a  crime,  but  such  testimony  cannot  be  re- 
ceived against  him  upon  any  criminal  in- 
vestigation or  proceeding,  as  a  witness  can- 
not be  compelled  to  even  disclose  circum- 
stances or  sources  of  evidence  which  would 
aid  his  prosecution,  and  any  statutory  pro- 
tection short  of  absolute  immunity  is  insuffi- 
cient— People  v.  O'Brien,  81  App.  Div.  (N. 
T.)    51. 

6S.  State  v.  Zdanowicz  (N.  J.  Err.  & 
App.)    55  Atl.  743. 

60.  A  Code  provision  that  the  neglect  or 
refusal  of  a  defendant  to  testify  shall  not 
create  a  presumption  against  him,  applies 
only  to  defendants  and  is  not  the  same  as 
the  constitutional  provision  against  compel- 
ling a  witness  to  testify  against  himself, 
which  provision  includes  not  only  defendants 
but  all  witnesses  (Code  Cr.  Proc.  N.  Y.  §  393) 
United  States  v.  Kimball,  117  Fed.  156. 

70.     Bankrupt  will  not  be  required  to  pro- 


duce his  books  where  he  deposes  that  the 
furnishing  of  such  books  and  the  filing  of 
schedules  pursuant  to  usual  order  would 
tend  to  incriminate  him  and  compel  him  to 
be  a  witness  against  himself — In  re  Kanter, 
117   Fed.   356. 

71.  The  New  York  Liquor  Tax  Law  which 
allows  a  forfeiture  of  a  certificate  unless  the 
holder  files  a  verified  answer  to  the  petition 
in  a  proceeding  for  its  revocation  and  de- 
nies every  alleged  violation  compels  the  cer- 
tificate holder  if  guilty  to  confess  to  his 
guilt  either  by  his  oath  or  by  silence  (Liquor 
Tax  Law,  §  28,  subd.  2) — In  re  Cullinan,  82 
App.   Div.    (N.   Y.)    445. 

72.  Coles  v.  State,  23  Ohio  Circ.  R.  313. 

73.  People  V.  Van  Wormer,  175  N.  Y.  188; 
Thornton  v.  State  (W^is.)    93  N.  W.  1107. 

74.  United  States  v.  Kimball,  117  Fed.  156. 
73.     State    v.    Gardner,    88    Minn.    130.      An 

affidavit  on  a  motion  to  quash  an  Indictment 
because  found  on  evidence  that  defendant 
was  compelled  to  be  questioned  before  the 
grand  jury,  need  not  set  forth  the  evidence 
given  by  defendant  in  detail,  it  being  suffi- 
cient If  it  fairly  alleges  the  fact  of  compul- 
sion— Id.  Evidence  given  in  a  grand  jury 
investigation  by  persons  subsequently  indict- 
ed is  not  by  finding  indictment  on  such  evi- 
dence used  elsewhere,  in  violation  of  a  stat- 
ute declaring  that  any  evidence  voluntarily 
given  by  a  witness,  cannot  be  used  against 
him  in  any  criminal  prosecution  (Rev.  St.  U. 
S.  §  860) — United  States  v.  Kimball,  117  Fed. 
156. 

76.  A  witness  prosecuted  for  robbery  and 
concealment  of  the  stolen  property,  though 
testifying  to  the  robbery,  may  under  his 
privilege  refuse  to  testify  as  to  the  con- 
cealment— People  V.  Loomis,  76  App.  Div.  (N. 
Y.)    243. 

77.  May  not  be  invoked  by  accused  as 
against  testimony  of  accomplice — Barr  v. 
People.  30  Colo.  522.  71   Pac.   392. 

7S,  79.  State  v.  Faulkner  (Mo.)  75  S.  W. 
116. 


EXCHANGE  OF  PROPERTY. 


1175 


A  witness  may  refuse  to  answer  a  question  collateral  to  the  issue,  the  answtr 
to  which  will  degrade  him.^^  The  privilege  is  personal  and  may  not  be  invoked 
by  another.^^  The  court  in  its  discretion  may  allow  or  refuse  an  answer  where 
the  witness  does  not  refuse  to  answer.®- 

A  witness  may  refuse  to  answer  questions  tending  to  subject  him  to  penalty 
or  forfeiture.®^ 

Acts  securing  one  from  prosecution  for  disclosures  made  thereunder  are  con- 
stitutional.®* The  provision  of  the  bankruptcy  act  that  no  testimony  given  by  the 
bankrupt  shall  be  used  against  him  in  any  criminal  proceeding  does  not  prevent 
the  introduction  of  incriminating  circumstances  obtained  from  sources  other  than 
the  bankrupt,  though  knowledge  of  such  sources  was  obtained  from  the  bankrupt's 
testimony.®^  The  proper  method  for  one  claiming  the  protection  of  the  statute 
exempting  him  from  prosecution  for  an  offense  of  which  he  gave  testimony  in 
another  case  is  by  motion  to  quash  the  indictment.®^ 

Waiver  of  privilege. — A  witness  may  waive  his  right  to  refuse  to  give  self- 
criminating  evidence,  as  the  privilege  is  a  personal  privilege,  which  he  will  be 
held  to  have  waived,  if  he  voluntarily  answers  without  objection.®^  Where  a 
defendant  becomes  a  witness  for  himself,  he  waives  any  constitutional  or  common- 
law  protection  against  being  compelled  to  be  a  witness  against  himself,  and  may 
be  cross-examined  by  the  prosecutor.®® 

EXCHANGE  OF  PROPERTY. 

Validity. — Contracts  for  exchange  of  property  must  be  mutual.'*  They  must 
be  written  if  involving  land.^° 

Transition  of  title  need  not  be  simultaneous  to  each  party.^^ 
Performance. — A  party  cannot  complain  of  nonperformance  if  he  is  in  de- 
fault,*^ or  cannot  make  clear  title,*®  or  has  assented  to  the  delay.** 


80.  The  asking  of  the  question  is  not  er- 
ror— State  V.  Hill.  52  W.  Va.  296.  On  prose- 
cution for  assault  with  dangerous  weapon, 
the  complainant's  witness  may  not  be  asked 
on  cross  examination  as  to  whether  he  had 
not  conducted  a  disorderly  resort,  and 
whether  he  was  not  in  the  same  business  at 
the  time  of  the  trial.  An  affirmative  answer 
would  have  tended  to  degrade  him,  and  the 
fact  that  he  was  engaged  in  such  business 
was  without  relevancy  on  the  question  of 
his  guilt  or  innocence — Meehan  v.  State 
(Wis.)    97  N.  W.   173. 

81,  82.     State  v.  Hill,  52  W.  Va.  296. 

S3.  The  postal  department  under  the  laws 
of  the  United  States  may  prohibit  ofHcials 
from  furnishing  information  regarding  regis- 
tered mail  on  penalty  of  removal — Nye  v. 
Daniels,  75  Vt.  81. 

84.  The  Illinois  anti-trust  act  exempts 
corporate  officers  from  criminal  prosecution 
for  anything  truthfully  disclosed  by  affida- 
vit as  to  compliance  with  the  law — People  v. 
Butler  St.  Foundry  &  Iron  Co.,  201  111.  236. 

85.  State  V.  Burrell,  27  Mont.  282,  70  Pac. 
982. 

86.  Sandwich  v.  State  (Ala.)  34  So.  620. 

87.  Rev.  St.  U.  S.  §  860 — United  States  v. 
Kimball.  117  Fed.  156;  State  v.  Faulkner 
(Mo.)  75  S.  W.  116;  Litton  v.  Commonwealth 
(Va.)  44  S.  E.  923.  Where  the  bankrupt  on 
examination  before  a  referee  made  no  ob- 
jections to  testimony  on  the  ground  that  his 
answers    might   Incriminate    him.    he   waived 


his  privilege  and  admissions  could  be  used 
on  cross  examination  in  a  criminal  proceed- 
ing against  him — State  v.  Burrell,  27  Mont. 
282,   70  Pac.   982. 

88.  State  v.  Zdanowicz  (N.  J.  Err.  & 
App.)  55  Atl.  743;  People  v.  Tice,  131  N.  Y. 
651;  People  v.  Dupounce  (Mich.)  94  N.  W. 
388.  See  case  for  list  of  authorities  support- 
ing text. 

89.  A  contract  for  exchange  from  which 
one  party  reserves  the  right  to  withdraw 
cannot  be  specifically  enforced — Tryce  v.  Dit- 
tus,  199  111.  189. 

90.  Beckmann  v.  Mepham,  97  Mo.  App. 
161.  Exchange  of  possession  under  a  parol 
contract  of  exchange  of  land  passes  title 
as  against  subsequent  transferees — Baldwin 
V.  Sherwood  (Ga.)  45  S.  E.  216.  Appropria- 
tion by  cotenant  of  exclusive  use  of  land 
jointly  held  and  relinquishment  to  other  co- 
tenant  of  land  held  by  first  solely — Laufer  v. 
Powell   (Tex,   Civ.   App.)   71  S.  W.  549. 

91.  Pratt  V.  Wickham  (Mich.)  94  N.  W 
1059. 

92.  Agreement  to  execute  deed  as  soon  as 
plaintiff  should  execute  deeds  individually 
and  as  guardian — Ellis  v.  Light  (Tex.  Civ 
App.)    73  S.   W.   551. 

93.  Representation  that  there  was  no  in- 
cumbrance proved  untrue — Grodfrey  v.  Ro- 
senthal   (S.  D.)   97  N.  W.  365. 

94.  Delay  pending  proceedings  to  remove 
cloud  from  title — Godfrey  v.  Rosenthal  (S 
D.)    97  N.  W.   365. 


1176 


EXCHANGES.  ETC. 


Rescission  is  warranted  where  the  exchange  is  secured  by  fraud  or  misrepre- 
sentation.®^ Eescission  must  be  prompt,  but  time  is  not  alone  to  be  considered.'-'" 
An  accounting  will  be  talien  to  place  the  parties  in  statu  quo." 

Effect. — Title  passes  on  turning  of  the  property  over  to  the  other  with  suck 
iutent.^^  Insurance  for  improvements  thereon,  which  without  knowledge  of  either 
party  were  destroyed  by  fire  before  the  exchange  was  consummated  passes  by  the 
exchange.®® 

Vendors  liens  may  be  implied  on  exchange  of  land.""* 

EXCHANGES  AND  BOARDS   OF  TRADE. 

Discipline  and  expulsion  of  members. — Methods  provided  for  discipline  of 
members  are  supreme  unless  violative  of  the  law  of  the  exchange  or  of  the  land,  or 
void  for  unreasonableness.  The  member  may  have  a  remedy  in  equity,  if  he  has 
none  other,  if  the  corporation  violates  its  laws  in  his  trial  to  the  injury  of  his 
property  rights.^  A  judgment  of  the  governing  committee  as  to  disciplinary  mat- 
ters will  not  be  reviewed.-  A  decision  expelling  a  member  is  presumed  to  be  jus- 
tified,* and  will  not  be  reviewed  on  the  merits.*  The  trial  of  members  cannot  be 
enjoined  on  the  ground  that  the  committee  will  commit  jurisdictional  error,^  or  on 
the  ground  that  the  charges  are  not  sufiiciently  specific  to  comply  with  the  rules  of 
the  corporation.®  Where  there  is  no  by-law  to  the  contrary,  charges  against  a  mem- 
ber may  be  preferred  by  a  member  of  the  board  of  triers.'' 

By-laws  may  warrant  trial  for  dealings  outside  the  jurisdiction  of  the  body,  or 
with  strano-ers.*     On  an  investigation  of  the  conduct  of  a  member,  the  exchange 


95.  Exchange  of  land  for  mortgage  false- 
ly represented  to  be  first  lien — Nisley  v. 
Spencer  (Neb.)  95  N.  W.  798.  Fraud  in  agent 
acting  for  opposite  party  in  effecting  ex- 
change— Brown  V.  Holden  (Iowa)  94  N.  W. 
482.  Concealment  and  misrepresentation  as 
to  title— Campbell  v.  Spears  (Iowa)  94  N.  W. 
1126.  Where  one  party  to  an  exchange  as- 
sumes payment  of  a  mortgage  barred  by 
limitations  of  which  fact  he  has  knowledge 
and  the  other  party  has  not,  the  second  par- 
ty may  rescind  if  had  he  had  such  knowledge 
he  would  not  have  exchanged.  He  is  entitled 
to  relief  also  on  the  ground  of  mistake  (Civ. 
Code,  §§  1568.  1572,  1577) — Hartwig  v.  Clark, 
138  Cal.  668,  72  Pac.  149.  On  misrepresenta- 
tion as  to  title  the  possession  of  the  party 
desiring  to  rescind  need  not  have  been  dis- 
turbed to  allow  such  action — Campbell  v. 
Spears   (Iowa)   94  N.  W.  1126. 

On  rescission  for  fraud  of  a  trade  of  a 
stock  of  goods  for  land  by  retaking  the 
goods,  the  retakers  are  liable  only  in  nom- 
inal damages  for  conversion  though  they  re- 
take a  day  or  two  before  they  complete  the 
rescission  by  tendering  back  the  deed  for 
the  land — Wilcox  v.  Morten  (Mich.)  92  N.  W. 
777. 

96.  Depends  on  all  the  circumstances — 
Beardsley  v.  Clem,  137  Cal.  328.  70  Pac.  175. 
Delay  of  three  months  not  laches-;— Nisley  v. 
Spencer  (Neb.)  95  N.  W.  798.  Delay  of  year 
after  discovery  of  fraud  not  laches — Camp- 
bell V.  Spears  (Iowa)  94  N.  W.  1126.  Bring- 
ing an  action  is  a  sufficient  demand  to  pre- 
vent laches  being  urged  against  a  second 
action  for  rescission  brought  immediately  on 
dismissal  of  the  first — Hartwig  v.  Clark,  13S 
Cal.  668,  72  Pac.  149. 

97.  Rents,  taxes,  improvements,  disburse- 


ments, etc., — Campbell  v.  Spears  (Iowa)  84  N 
W.  1126. 

9S.  Instruction  as  to  effect  of  alteration 
of  bull  exchanged  held  to  embody  this  rule 
— Pratt  V.  Wickham   (Mich.)   94  N.  W.  1059. 

99.  Beardsley  v.  Clem,  137  Cal.  328,  70 
Pac.    175. 

100.  To  the  extent  title  to  the  land  con- 
veyed as  consideration  fails — Johnson  v. 
Burks   (Mo.  App.)    77   S.  W.   133. 

1.  Wood  v.  Chamber  of  Commerce  (Wis.) 
96  N.  W.  835.  Notes.  Control  of  exchanges 
by  the  courts,  see  note  to  68  Am.  St.  Rep. 
860,  862.  Review  of  decisions  of  exchange, 
see  note  49  L.  R.  A.  358,   361,   364. 

2.  Bank  of  Montreal  v.  Waite,  105  111. 
App.  373;  Alton  Grain  Co.  v.  Norton,  105  111. 
App.  385. 

3.  All  the  evidence  on  which  it  rested  need 
not  be  introduced  in  defense  to  an  injunc- 
tion to  compel  recognition  of  expelled  mem- 
ber. Plaintiff  is  confined  to  the  issue  of  suf- 
ficiency of  evidence  of  fraud  authorizing  ex- 
pulsion, and  the  decision  need  be  based  only 
on  such  evidence  as  to  justify  honest  minds 
in  the  conclusion — Young  v.  Eames,  78  App. 
Div.    (N.   Y.)    229. 

4.  W^eukirch  v.  Keppler  (N.  Y.)  66  N.  E. 
1112. 

5.  Where  by  laws  gave  power  to  board  of 
directors  to  censure,  suspend,  or  expel  mem- 
bers, equity  will  not  determine  whether  the 
facts  alleged  constitute  an  offense  again'^t 
the  corporation — Wood  v.  Chamber  of  Com- 
merce  (Wis.)   96  N.  W.  835. 

6.  7.  Wood  V.  Chamber  of  Commerce 
(Wis.)    96   N.   W.   835. 

8.  By  laws  of  Milwaukee  Chamber  of 
Commerce    held    to    authorize    such     trial — 


EXCHANGES,  ETC. 


1177 


is  not  limited  to  fraud  in  a  single  transaction  which  is  set  out  in  the  specification 
as  furnishing  evidence  of  what  is  the  real  charge.^  The  same  transaction  may  be 
both  a  fictitious  sale  and  a  fraud,  either  authorizing  expulsion  of  a  member.^" 

Where  an  expulsion  is  based  on  fraud  of  the  member,  the  authority,  if  ques- 
tioned, to  expel  for  fraud  on  proof  of  fictitious  sales,  must  be  specifically  chal- 
lenged.^^ 

Arbitrary  expulsion  must  be  malicious  to  impose  liability  for  injury  to  busi- 
ness reputation,  nor  can  dues  for  the  current  year  be  recovered  as  against  the  mem- 
bers.^^ 

The  right  of  membership  is  regarded  as  property  in  a  limited  sense,"  though 
held  not  subject  to  transfer  tax  as  personalty.'*  It  has  been  held  subject  to  the 
owner's  debts.'" 

Board  contracts. — Liability  of  members  on  board  contracts  is  controlled  by 
board  rules,"  but  equity  will  relieve  against  rules  compelling  submission  of  dis- 
putes involving  property  rights  to  a  committee  of  the  board,  where  power  to  make 
such  rules  is  not  conferred  by  charter.''' 

Marlcet  quotations. — Quotations  will  not  be  protected  in  equity  where  based  on 
gambling  operations.'* 

Market  quotations  cannot  be  copied  from  the  tape  of  a  gathering  company 
by  a  rival  and  sold  to  other  persons,'®  and  a  company  which  pays  a  board  of  trade 
for  the  privilege  of  disseminating  its  quotations  has  a  property  right  which  will 
be  protected  by  injunction.^o  A  telegraph  company  furnishing  quotations  may 
reasonably  require  subscribers  to  agree  not  to  engage  in  bucket-shopping.^' 


"Wood  V.  Chamber  of  Commerce  (Wis.)  96  N. 
W.  835. 

9.  Expulsion  on  charge  of  fraud  in  ficti- 
tious sales — Young  v.  Eames,  78  App.  Div. 
(N    T.)    229. 

10.  Young  V.  Eames,  78  App.  Div.  (N.  Y.) 
229. 

11.  Pleadings  held  insufficient  to  raise 
such  issue  on  injunction  to  compel  recogni- 
tion of  member — Young  v.  Eames,  78  App. 
Div.    (N.   Y.)    229. 

12.  Erroneous  expulsion  of  member  of 
coffee  exchange  without  hearing  for  viola- 
tion of  rules— Lurman  v.  Jarvle,  82  App.  Div. 
(N    Y.)    37. 

13.  Seat  is  taxable  in  New  York  though 
owned  by  non-resident— In  re  Glendinning's 
Estate,  171  N.  Y.   684. 

14.  Laws  1896,  §  2,  subd.  5,  §§  220.  221--In 
re  Hellman's  Estate.  77  App.  Div.  (N.  Y.)  355. 
It  is  not  taxable  in  Maryland.  Wheat  in  an 
unincorporated  exchange  not  transferable 
except  to  person  selected  by  governing  com- 
mittee no?  within  Bill  of  ^'^hts.  §  15  or 
Poe's  Supp.  Code  Pub.  Gen.  Laws  1900,  art. 
81    §  2— Baltimore  v.  Johnston    (Md.)   54  Atl. 

646.  ,    ^ 

11  Not  "tools  of  trade"  exempted  from 
execution— Leggett  v.  Waller,  39  Misc.  (N. 
V  ^  408  Not  exempt  in  bankruptcy  (Bankr. 
let  1898.  %\  6,  70.  30  St.  566,  c.  541.  §§  6  70)— 
Page  V  Edmunds,  187  U.  S.  596.  May  be 
reached  in  supplementary  proceedings-Leg- 
gett  V.  Waller,  39  Misc.   (N.  Y.)   408. 


16.  Member  in  refusing  to  be  bound  by 
unratified  contract  of  clerk  where  rule  for- 
bids clerk  contracting  cannot  be  held  to 
have  violated  rules  of  board — Bartlett  v.  L. 
Bartlett  &  Son  Co.,  116  Wis.  450. 

17.  Payment  of  money  under  decision  of 
such  a  committee  settling  a  "corner"  enjoin- 
ed— Bank  of  Montreal  v.  Waite,  105  111.  App. 
3  73;  Alton  Grain  Co.  v.  Norton,  105  111.  App. 
385. 

18.  So  held  where  proof  showed  90  per 
cent  of  transactions  for  future  delivery,  de- 
termining quotations,  were  closed  by  payment 
of  differences — Board  of  Trade  of  Chicago  v. 
Donovan  Commission  Co.,  121  Fed.  1012; 
Board  of  Trade  of  Chicago  v.  Kinsey  Co.,  125 
Fed.  72;  Christie  Grain  &  Stock  Co.  v.  Board 
of  Trade  of  Chicago  (C.  C.  A.)  125  Fed.  161 
(In  opinions  below  the  circuit  court  held 
contra.  116  Fed.  944,  and  also  on  final  hear- 
ing, 121  Fed.  608,  that  a  requirement  that 
persons  to  whom  quotations  were  furnished 
should  not  conduct  bucket  shops  was  not  in 
violation  of  the  Sherman  Anti-Trust  act,  26 
Stat.   209). 

19.  Reproduction  on  the  tape  not  regarded 
as  a  publication — National  Tel.  News  Co.  v. 
Western  Union  Tel.  Co.  (C.  C.  A.)  119  Fed 
294. 

20.  Taking  quotations  from  wires  or  ofR- 
ces  of  patrons  restrained — Illinois  Commis- 
sion Co.  V.  Cleveland  Tel.  Co.  (C.  C.  A.)  119 
Fed.   301. 

21.  Sullivan  v.  Postal  Tel.  Cable  Co.  (C 
C.  A.)  123  Fed.  411. 


1178 


EXECUTIONS. 


§1 


EXECUTIONS.22 


§  1.      The  Right  to   Have   Execution. 
§  2.      Stay  and  Ho-\v  Procured. 

Procedure     to     Procure     Issuance 


of 


§   6. 
§  7. 

§  8. 
A. 


§  3. 
Writ. 

§  4.     PoT\er  and  Authority  to  Issue   or  Al- 
lo-tv  'Writ. 

§  5.      Foriu   and   Contents    of  W'rit. 
Quashal    of   "*\'rit. 

Successive,    Alius    and    Pluries    Writs. 
The   Levy. 

Leviable  Property  and  Order  of  Levl- 
ability. 

B.  Mode  of  Making. 

C.  Duty  to  Make. 

D.  Extent  and  Adequacy. 

E.  Conflicting     Levies     and     Liens     and 
Their  Priorities. 

F.  Relinquishment   and   Dissolution;   Re- 
plevin. 

G.  Release    of   Property   on    Receipts    or 
Forthcoming  Bonds. 


H.  Officer's    Liability    for   Loss    of   Prop- 
erty. 
L  Effect  of  Death  of  Debtor. 
J.  Wrongful  Levy. 
§  9.      Claims   of  Third   Persons. 
§  10.     Appraisement. 

§  11.  Execution  Sales. — In  General;  Notice 
and  Advertisement;  Conduct;  Bids;  Liability 
for  Failure  to  Sell;  Proceeds. 

§  12.  Return  or  Certification  of  Sale  to 
Court  and  Confirmation. — Return;  Confirma- 
tion. 

§  13.     Purchaser's  Certificate  of  Sale. 
§   14.      Redemption. 
§   15.     Deeds  and  Titles  under  Sale. 
§  16.     Remedies    against    Defective    Sale.— t 
Setting  Aside;  Injunction. 

§  17.  Restitution  on  Reversal  of  Judg- 
ment. 


§  1.  The  right  to  have  execution. — A  judgment  is  essential.^'  A  fee  bill 
is  the  proper  process  for  the  collection  of  costs  in  civil  actions,  and  an  execution 
may  not  issue  therefor  solely.^*  j\randamus  takes  the  place  of  an  execution  to 
enforce  judgments  against  a  municipality.-^  A  surety  on  a  note  may  have  exe- 
cution issued  first  against  the  maker.^"  A  creditor  may  not  have  an  execution 
against  his  own  property.^^  A  party  entitled  to  an  execution  under  a  decree  is 
not  deprived  of  that  right  by  a  later  decree  ratifying  an  auditor's  report  by  con- 
sent of  parties  that  property  was  insufiicient  to  pay  claims  and  directing  distribu- 
tion among  lienors  other  than  complainant.^* 

§  2.  Stay  and  how  procured. — Execution  may  be  stayed  by  the  execution 
of  a  supersedeas  bond^^  by  order  of  court/"  by  stipulation  of  the  parties.^^  Lia- 
bilitv  of  certain  property  to  execution  should  be  raised  by  appeal  and  the  court 
should  not  stay  execution  as  to  such  property.^^ 

§  3.  Procedure  to  procure  issuance  of  writ. — The  judgment  need  contain 
no  special  direction  for  issuance  of  execution.'^     The  New  York  code  requires  sc- 


22.  Procedure  for  collection  of  judgments 

against  receivers,  see  Receivers.  Supple- 
mentary proceedings,  see  Supplementary  Pro- 
ceedings. Execution  against  the  person,  see 
Civil  Arrest. 

23.  Attempt  to  collect  costs  in  criminal 
case  without  judgment  therefor — Hendon  v. 
Delvichio  (Ala.)  34  So.  830.  Chancery  de- 
crees are  enforced  the  same  as  judgments  at 
law  in  Illinois — Whalen  v.  Billings,  104  111. 
App.  281.  Under  Code  Civ.  Proc.  §  779,  pro- 
vidinsT  for  execution  against  personalty  to 
enforce  an  order,  on  failure  to  perform  an 
order  requiring  clients  to  pay  an  alt'orney 
his  compensation  on  substitution  of  other 
attorneys,  the  attorney  may  have  an  execu- 
tion— Kane  v.  Rose.  87  App.  Div.   (N.  T.)   101. 

21.  Decker  v.  St.  Louis,  etc.  R.  Co.,  92  Mo. 
App.    50. 

2.5.  United  States  v.  Saunders  (C.  C.  A.) 
124    Fed.    124. 

2(;.  HoUimon  v.  Karger  (Tex.  Civ.  App.)  71 
S.  W.  293.  And  where  not  satisfied  and  the 
surety  pays  the  judgment  he  may  have  exe- 
cution against  the  maker  for  the  amount  paid 
—Id. 

27.  Land  reverted  to  seller  and  he  levic-d 
on  same — :Missouri  &  S.  W.  Land  Co.  v. 
Quinn,   172  Mo.   563. 


28.  McCarthy  v.  Holtman,  19  App.  D.  C. 
150. 

29.  A  supersedeas  bond  Is  not  effectual 
prior  to  receipt  of  countermand  by  the  sher- 
iff (Code  Iowa,  §§  4128.  4130,  4131) — Edwards 
V.  Olin  (Iowa)  96  N.  W.  742.  The  effect  of  a 
stay  or  supersedeas  bond  is  merely  to  stay 
proceedings  on  the  judgment  or  order  ap- 
pealed from.  It  does  not  destroy  or  vacate 
the  judgment — State  v.  Superior  Court 
(Wash.)  73  Pac.  779.  See  as  to  stay  pend- 
ing appeal  Appeal  &  Review,  ante,  pp.  124- 
127  and  see  generally  Stay  &  Supersedeas. 

30.  Courts  in  the  exercise  of  equitable 
powers  may  stay  execution  on  a  judgment 
confessed  on  notes  under  powers  of  attor- 
ney pending  a  hearing  on  motion  to  quash 
and  may  allow  judgment  to  be  opened  on  a 
proper  showing — Pearce  v.  Miller,  201  111. 
188. 

31.  The  acceptance  of  a  check  to  be  ap- 
plied on  a  judgment  on  condition  that  the 
execution  be  stayed,  otherwise  the  check  to 
be  returned,  is  a  sufficient  consideration  for 
the  agreement  to  stay  execution — Standard 
Oil  Co.  v.  Goodman  Drug  Co.  (Neb.)  95  N. 
W.    667. 

32.  Lewis  v.   Linton.   204  Pa.    234. 

33.  Knotts    V.    Crossly     (Neb.)     95    N.    W. 


§5 


FORM  AND  CONTENTS   OF  WRIT. 


1179 


curity  of  a  guardian  ad  litem  before  lie  may  proceed  by  execution  to  collect  a 
judgment.^*  A  substituted  writ  may  issue  after  sale  and  delivery  of  deed  where 
there  is  a  showing  of  loss  of  the  original.^^ 

§  4.  Power  and  authority  to  issue  or  allow  issuance  of  writ. — The  right  to 
execution  against  lands  on  transcripted  judgments  is  a  statutory  right  and  precedent 
conditions  must  be  complied  with.^*  The  time  within  which  execution  must  issue 
is  regulated  by  statute  in  the  various  states.^'^  Execution  cannot  be  ordinarily 
issued  to  a  county  other  than  that  where  the  judgment  was  rendered  or  has  been 
docketed."  . 

§  5.  Form  and  contents  of  writ. — An  execution  must  conform  to  the  judg- 
ments^ or  the  order  of  the  court.*"  An  execution  against  one  as  agent  for  an- 
other is  against  the  former;  the  words  "agent  for"  being  merely  descriptio  per- 
sonae.*^  Failure  of  the  clerk  to  affix  the  seal  of  the  court  renders  the  execu- 
tion voidable  only.*'^  Trivial  errors  of  form  will  be  disregarded  after  a  long 
lapse  of  time.**  Less  formality  is  required  in  executions  issued  from  justice 
courts.** 

The  transfer  of  an  execution  under  the  laws  of  Georgia  must  be  in  writing.*'^ 


S48.  The  judgment  of  a  district  court  entered 
on  appeal  of  a  claim  against  an  estate, 
should  not  direct  the  issuance  of  an  execu- 
tion to  satisfy  the  judgment — Bennett's  Es- 
tate V.  Taylor  (Neb.)  96  N.  W.  669.  A  direc- 
tion in  a  decree  that  certain  property  be  sold 
as  upon  execution  sufficiently  authorizes  a 
sale  by  the  sheriff — Cochran  v.  Cochran 
(Neb.)  95  N.  "W.  778. 

34.  "^"ileman  v.  Metropolitan  St.  R.  Co.,  80 
App.  Div.    (N.  Y.)   53. 

35.  Morrison  v.  Taylor   (Del.)    55  Atl.   335. 

36.  Execution  cannot  issue  on  a  tran- 
scripted judgment  under  the  laws  of  Illinois 
unless  the  return  on  the  execution  from  the 
justice  shows  that  defendant  was  without 
personalty  sufficient  to  satisfy  the  judgment 
(2  Starr  &  C.  Ann.  St.  [2d  Ed.]  p.  2454,  c.  79. 
par.  135)— Merrick  v.  Carter  (111.)  68  N.  E. 
750.  A  return  indorsed  "Demand  made  on" 
a  certain  date  does  not  show  insufficiency  of 
personalty — Id.  Where  a  judgment  has  been 
registered  in  the  office  of  the  probate  judge 
in  Alabama  the  proper  method  of  enforcing 
the  judgment  is  by  execution  (Code,  1896,  §§ 
1920.1921) — Emrich  V.Gilbert  Mfg.  Co.  (Ala.) 
35  So.  322.  Though  a  lien  against  realty  is 
created  by  filing  a  transcript  of  a  judgment 
rendered  in  another  county,  an  execution 
sale  based  on  such  transcript  is  void  unless 
authorized  by  statute.  Ball.  Ann.  Codes  & 
St.  ^Vash.  §  5132.  governing  matter  of  liens 
of  transcripted  judgments  confers  no  such 
authority — Humphries  v.  Sorenson  (Wash.) 
74  Pac.  690.  Where  the  only  proof  of  the  is- 
suance of  an  execution  on  a  judgment,  an 
abstract  of  which  had  been  filed  in  another 
county,  was  an  execution  which  appeared 
never  to  have  been  delivered  to  an  officer 
for  service,  it  was  insufficient  to  sustain  the 
lien  of  the  judgment  as  against  land  subse- 
quently acquired— Schneider  v.  Dorsey  (Tex.) 
74   S.  W.   526. 

37.  In  Iowa,  at  any  time  within  twenty 
vears  from  the  date  of  the  judgment  though 
the  lien  of  the  latter  has  expired — Hawkeye 
Ins  Co.  V.  Maxwell  (Iowa)  94  N.  W.  207. 
The  Kansas  Code  provision  that  if  execu- 
tion  is   not   sued   out   within  five   years   from 


the  date  of  the  judgment  it  shall  become 
dormant,  refers  only  to  general  execuiiona 
against  the  property  of  the  debtor  and  not 
to  special  executions  (Code  Kan.  §  445) — 
Watson  v.  Keystone  Iron  Works  Co.  (Kan.) 
74  Pac.  269.  A  provision  that  a  dormant 
judgment  shall  cease  to  be  a  lien  does  not 
apply  to  a  decree  for  the  sale  of  specific 
realty   (Code   Kan.    §    445) — Id. 

38.  In  Iowa,  a  decree  in  a  chattel  fore- 
closure may  direct  the  issuance  of  two  spe- 
cial executions  to  different  counties — King 
V.  Nelson  (Iowa)  94  N.  W.  1095.  A  decree 
of  foreclosure  of  a  chattel  mortgage  direct- 
ing sale  under  special  execution  In  p.n  ad- 
joining countj',  cannot  be  collaterally  at- 
tacked— Id.  In  Texas,  the  first  execution 
must  be  issued  to  the  county  in  which  the 
judgment  was  rendered,  and  not  to  a  coun- 
ty in  which  it  was  filed  to  obtain  a  lien — 
Schneider  v.  Dorsey  (Tex.)  74  S.  W.  526.  In 
North  Carolina,  a  levy  on  land  located  In  an 
other  county  may  be  made  without  docketing 
the  transcript  in  the  county  where  the  land 
is  located — Evans  v.  Aldridge  (N.  C.)  45  S.  E. 
772. 

39.  There  is  no  variance  between  a  judg- 
ment against  a  minor  and  his  next  friend  and 
an  execution  against  the  minor  alone,  the 
whole  judgment  showing  that  a  personal 
judgment  against  the  next  friend  was  not  in- 
tended— Day  V.  Johnson  (Tex.  Civ.  App.)  72 
S.  W.   426. 

40.  Special  execution — Norton  v.  Reardon 
(Kan.)    72  Pac.   861. 

41.  Armour  Pkg.  Co.  v.  Lovell  (Ga.)  44  S. 
E.   990. 

42.  Defect  cured  by  a  later  act,  that  de- 
fects and  irregularities  in  issuance  of  execu- 
tion should  be  disregarded  (Mont.  Act  Mar 
2,  1899,  p.  145,  §  2) — Kipp  v.  Burton  (Mont.) 
74  Pac.  85. 

43.  Incorrect  date  for  docketing  judgment 
raised  45  years  after  sale — Dixon  v.  Dixon, 
3S  Misc.   (N.  T.)   652. 

44.  Erann  v.  Blum  (Cal.)  72  Pac.  168.  See 
Justices   of  the   Peace. 

45.  Civ.  Code  1895,  §  3682— Jones  v.  High- 
tower    (Ga.)    45   S.   E.    60. 


1180 


EXECUTIONS. 


§6 


§  6.  Quashal  of  writ. — A  justice  has  no  power  to  quash  an  execution,*'  no 
appeal  having  been  taken,  nor  can  a  United  States  commissioner  do  so  on  the 
ground  that  his  judgment  is  invalid.*^  An  order  overruling*^  or  granting*^  a 
motion  to  quash  is  appealable. 

§  7.  Successive,  alias  and  pluries  writs. — An  alias  WTit  of  special  execution 
is  not  allowed  in  Illinois.^"  An  alias  execution  for  interest  on  a  judgment  will 
not  issue  where  money  levied  upon  is  held  by  the  sheriff  under  stipulation  until 
the  determination  of  a  claim  proceeding."  Where  court  has  jurisdiction,  an  offi- 
cer may  not  refuse  to  execute  an  alias  writ  for  irregularities  in  prior  execution." 

§  8.  The  levy.  A.  Leviable  property  and  order  of  leviahiUty.^^—Th.e  general 
rule  is  that  any  property  which  may  be  sold  by  the  o^mier  is,  except  as  affected  by 
exemption  laws,  subject  to  levy  on  execution  against  him,  as  growing  crops/*  but 
not  beer  in  a  state  of  intermediate  fermentation.^^ 

Under  the  laws  of  some  of  the  states,  both  the  equitable  and  legal  interest 
of  the  judgment  debtor  in  lands  and  tenements,"^®  may  be  levied  on,  but  not 
a  contingent  remainder,''^  the  interest  of  the  grantee  of  a  mortgagee,^^  curtesy 
initiate,®"  nor  the  interest  acquired  by  a  purchaser  of  land  at  a  commissioner's 
sale  before  a  commissioner's  deed  is  executed.®^  Wliere  a  trust  makes  no  valid 
direction  for  accumulation,  the  surplus  beyond  support  of  the  beneficiary  may 
be  applied  to  claims  of  creditors.®-  Partnership  personalty  is  subject  to  levy 
for  an  individual  debt,®^  and  corporate  lands  are  subject  to  execution  to  the  same 


46.  Brownfleld  v.  Thompson,  96  Mo.  App. 
340. 

47.  Time  to  appeal  had  expired — Little  v. 
Atchison,  etc.,   R.  Co.   (Ind.  T.)    76  S.  W.   283. 

48.  Balllnger's  Ann.  Codes  &  St.  §  6500 — 
Hewitt  V.   Root,   31   Wash.    312.   71   Pac.   1021. 

49.  Little  V.  Atchison,  etc.,  R.  Co.  (Ind.  T.) 
76  S.  W.  283.  An  appeal  from  an  order 
quashing  an  execution  is  not  an  appeal  from 
a  final  judgment  for  the  recovery  of  money 
•within  Ballinger's  Ann.  Codes  &  Stat.  §  6505, 
providing  that  an  appeal  bond  shall  be  double 
the  amount  of  the  judgment  involved  (State 
V.  Superior  Court  [Wash.]  73  Pac.  779)  and 
certiorari  will  lie  to  review  an  order  fixing 
the   amount   thereof — Id. 

50.  Keeley  Brew.  Co.  v.  Carr,  198  111.  492. 

51.  Adams  v.  National  Bank,  30  Wash.  20, 
70  Pac.  105. 

52.  Mollineux  v.  Mott,  78  App.  Dlv.  (N. 
Y.)  493.  He  may  not  object  that  prior  exe- 
cutions were  invalid — State  v.  Rainey  (Mo. 
App.)  73  S.  W.  250.  An  alias  execution  issued 
on  a  justice's  judgment  is  not  invalid  because 
prior  executions  were  returned  by  plaintiff's 
direction  before  they  had  run  the  statutory 
time— State  v.  Stokes  (Mo.  App.)  73  S.  W.  254. 

53.  See  Exemptions. 

ry4.     Johns  V.  Kamarad  (Neb.)  96  N.  W.  118. 

55.  Goepper  v.  Phoenix  Brew.  Co.,  25  Ky. 
L.  R.   84,   74  S.  W.  726. 

56.  W^hiteford  v.  Hootman,  104  111.  App. 
562.  The  interest  of  an  heir  not  subject  to 
homestead  right  of  a  mother,  is  subject  to 
sale  under  execution  against  such  child — 
Dinsmoor  v.  Rowse,  200  111.  555.  Heirs  are 
owners  in  common  of  residue  of  property  re- 
maining for  distribution  and  have  a  leviable 
interest  therein,  though  the  purchaser  will 
be  deferred  in  receiving  any  benefit  there- 
from until  it  can  be  ascertained  what  share 
of  the  proceeds  he  was  entitled  to — Hardy 
V.  Wallis,  103  111.  App.  141.  A  lien  reserved  In 
a   deed    for   additional    purchase    price    to    be 


conditionally  paid  Is  property  subject  to 
execution  sale — Fryberger  v.  Berven,  88 
Minn.  311.  A  mortgagor  taking  up  a  mort- 
gage with  money  furnished  by  a  third  per- 
son and  turning  same  over  as  collateral 
security  for  a  loan  has  a  leviable  equity 
in  the  mortgaged  premises  which  may  be 
subjected  to  the  payment  of  his  debts  sub- 
ject to  the  lien  of  the  holder  of  the  mort- 
gage— Bracken  v.  Milner  (Mo.  App.)  73  S. 
W.  225.  A  debtor  conveying  land  to  secure 
a  debt  without  taking  back  a  defeasance  has 
an  unenforceable  equity  in  the  land  which 
may  be  sold  for  whatever  a  purchaser  may 
choose  to  give — Eberly  v.  Shirk  (Pa.)  55  Ati. 
1071. 

Right  of  a  locator  who  has  fully  paid  for 
public  lands  though  he  has  yet  no  patent 
(Sayles'  Civ.  St.  art.  4218f) — Martin  v.  Bry- 
son  (Tex.  Civ.  App.)   71  S.  W.  615. 

58.  Shannon's  Code,  §  63,  allows  execu- 
tion against  rights  and  interests  in  the  land 
whether  legal  or  equitable,  but  a  remainder- 
man has  no  interest  legal  or  equitable  pre- 
vious to  life  tenant's  death — Nichols  v.  Guth- 
rie, 109  Tenn.  535.  Code  Iowa,  §§  3801,  48, 
par.   8 — Taylor  v.   Taylor,    118   Iowa,    407. 

59.  Johnston'  v.  Case.   131  N.   C.    491. 

60.  Rev.  St.  Mo.  1899,  §  4339.  expressly 
exempting  it — Ball  v.  Woolfolk  (Mo.)  75  S. 
W.   410. 

61.  Civ.  Code  Proc.  Ky.  §§  394,  397,  399; 
Ky.  St.  §§  1681,  1709 — Goodin  v.  Wilson,  24 
Ky.  L.   R.   1521,  71  S.   W.   866. 

62.  Code  Civ.  Proc.  Cal.  §  859 — Magner  v. 
Crooks,    139    Cal.    640.    73   Pac.    585. 

63.  Standing  timber  in  the  hands  of  a 
purchaser  under  a  contract  specifying  no 
time  for  its  removal  is  realty  for  the  pur- 
poses of  an  execution  sale.  The  contention 
was  that  it  was  partnership  personalty  and 
accordingly  not  subject  to  levy  for  individual 
debt — Dils  v.  Hatcher,  24  Ky.  L.  R.  826,  69 
S.  W.   1092.     And  see  P.Trtnership. 


§  8C 


THE  LEVY. 


1183 


extent  as  if  owned  by  individuals."  Personalty  in  possession  of  the  owner  is 
generally  subject  to  levy/'^  and  where  the  judgment  debtor  is  left  in  possession, 
a  levy  is  good  against  a  purchaser^*  or  mortgagee,"  and  a  creditor  may  levy  on 
property  fraudulently  transferred  by  his  debtor/^  Where  a  sale  of  property  is 
not  completed,  the  seller  may  rescind  the  sale  so  as  to  defeat  an  execution  against 
the  buyer  levied  meantime.«»  In  like  manner  property  conveyed  without  consid- 
eration and  with  a  secret  agreement  to  reconvey  is  subject  to  execution  against 
^antee.^°  Money  deposited  in  lieu  of  an  undertaking  for  appearance  belonging 
to  another  may  not  be  levied  upon  for  debt  of  the  party  boundJ^  Property  in 
custodia  Icgis  is  not  subject  to  levy."  Under  the  national  banlo-uptcy  act,  levies 
within  four  months  before  filing  the  petition  are  void."  An  agreement  that  no 
levy  shall  be  made  on  certain  property  cannot  be  enforced  by  injunction  prior  to 

an  actual  levy."* 

(§8)  B.  Mode  of  making  levy.— A  sheriff  is  not  required  to  notify  a  debtor  of 
his  homestead  rights  where  he  has  abandoned  same.^=  The  description  of  the  wrong 
mortc^age  in  the  levy  on  an  equity  of  redemption  vitiates  the  levy."  Fixtures  may 
not  be  levied  on  as  personalty."  A  leasehold  is  an  interest  in  real  estate  withm 
laws  governing  manner  of  levy."  Standing  timber  sold  on  contract  fixing  no  time 
for  its  removal  is  to  be  levied  on  as  realty.''^  .,.11 

(§8)  C.  Duty  to  make  levy.  Indemnification  of  officer.— An  officer  is  liable 
for  failure  to  make  levy,*''  but  may  require  indemnity." 


64.  Poor  V.  Chapln.  97  Me.  295. 

65.  Taylor  v.  Plunkett  (Del.)  56  Atl.  884; 
Peters  v.  Cape  May.  etc..  S.  S.  Co.  (N.  J. 
Eq)  53  Atl.  692.  Sufficiency  of  evidence 
to  create  prima  facie  presumption  that  pur- 
chaser in  possession  was  ^^  ^''^^''Z\?Lr  sl 
ness  at  time  of  levy-Wood  v.  Matter  88 
Minn.  123.  Sufficiency  of  evidence  to  show 
prope-ty  in  Judgment  debtor-Harmon  v. 
Church    (Neb)    93  N.  W.  209. 

66  The  stock  of  one  doing  business  in 
his  own  name  is  liable  for  h.s  debts  to  one 
without  notice  though  the  title  to  the  prop- 
Trty  in  another  is  of  record-Partlow  v.  Llck- 
mer.  100  Va.  631.  Personalty  may  be  levied 
on  as  the  property  of  the  seller  unless  it  lias 
been  delivered  to  the  buyer  with  reasonable 
dispatch— Taylor  v.    Plunkett    (Del.)    56   Atl. 

^^67.  Where  the  mortgagee  is  not  In  pos- 
..ession  and  the  mortgage  is  not  on  file  at  the 
date  o^  the  lew.  a  purchaser  at  the  execution 
sale  under  a  Judgment  against  the  mortgagor 
will  take  free  of  the  mortgage,  tbougn  ne 
had  no1?ce'^f  its  existence  prior  t^  t^e 
sale— Johns    v.    Kamarad    (Neb.)     96    JN.     w. 

^^«S  Brasie  v.  Minneapolis  Brew  Co  87 
Miim    rJe.      He    may    maintain    ejectment    to 

"■^r ' StatlTje°n"kTn';  170  Mo.  16. 

?0.  ?t^s  not  material  to  the  validity  of  a 
,  tTTot   thP   nroperty  was  conveyed  to   the 

^•'Zment  debtor  for  a  bad  purpose-Oliver 
'  WUWte  m  111.  552.  A  promise  by  a  son 
V.  Wilhite,   -ui  i"-  ^^i   n    .^vas    levied    to 

^^"mothrr  that  he  wouTd  not  record  a  deed^ 
iTllTo^a^aras  against  a  creditor  without 

-r'pfoV/  "-rd!^7^5^"p.  Div.    (N.  T.) 

''Ti''pto?er?rtaken  from  an  officer  under 

";!t    of   replevin    and   returned   to    him    on 

fhe'iving  of  a  re-delivery  bond,  is  In  custo- 


dia  legis  and  a  sale  of  the  property  on  an 
execution  after  the  property  is  so  taken  and 
during  the  pendency  of  the  replevin  pro- 
ceedings may  be  prevented  by  injunction — 
Overton  v.  Warner  (Kan.)  74  Pac.  651.  Pend- 
ency of  an  action  for  the  foreclosure  of  an 
alleged  chattel  mortgage  in  which  a  tem- 
porary injunction  has  been  granted  re- 
straining defendant  from  disposing  of  the 
property  during  the  pendency  of  the  ac- 
tion, does  not  withdraw  the  property  so  as  to 
prevent  creditors  in  another  court  from 
levying  an  execution,  the  property  Is  not  in 
the  custody  of  the  law,  and  the  principles 
applicable  are  those  pertaining  to  the  doc- 
trine of  lis  pendens — Ryan  v.  Donley  (Neb.) 
96    N.   W.    49. 

73.  In  re  Darwin  (C.  C.  A.)  117  Fed.  407; 
Gabriel  v.  Tonner,  138  Cal.  63,  70  Pac.  1021; 
Ninth  Nat.  Bank  v.  Moses,  39  Misc.  (N.  Y.) 
664;  Rodgers  v.  Forbes,  23  Ohio  Circ.  R.  438. 

74.  Crook  V.  Lipscomb  (Tex.  Civ.  App.)  70 
S.    W.    993. 

75.  Smith  v.  Thompson,  169  Mo.  553.  A 
requirement  that  notice  of  levy  shall  be  filed 
in  the  county  in  which  land  occupied  as  a 
homestead  is  situated  does  not  apply  where 
the  homestead  is  abandoned  after  rendition 
of  Judgment    (Rev.  St.  Mo.   1899,  §   3178)— Id. 

76.  Bartlett   v.    Gilcreast    (N.    H.)    55    Atl. 

77.  Taylor  v.  Plunkett   (Del.)    56  Atl.  384. 

78.  State    T.    Superior    Court    (Wash.)    73 

Pac    779. 

79.  Dils  v.  Hatcher,   24   Ky.  L.   R.    826,    69 

S.  W.   1092. 

80  A  sheriff  cannot  excuse  failure  to  levy 
on  the  ground  that  the  execution  was  Issued 
before  return  of  a  previous  execution  (Mol- 
lineaux  v.  Mott,  78  App.  Div.  [N.  Y.]  493). 
He  has  the  burden  of  showing  the  validity 
of  a  homestead  exemption  claim — Johns  v. 
Robinson  (Ga.)  45  S.  E.  727.  A  recital  in  a 
constable's  return  that  he  returned  the  sam« 


1182 


EXECUTIONS. 


§  8D 


(§  8)  B.  Extent  and  adequacy  of  levy. — An  insufficient  levy  cannot  be  forti- 
fied or  perfected  by  a  levy  made  after  the  return  of  the  execution.*^  The  entry  of 
levy  must  show  the  property  levied  upon.®^ 

(§8)  E.  Confiicting  levies  and  liens  and  priorities  ietween  them. — Under  the 
laws  of  Kentucky,  the  lien  of  an  execution  attaches  from  the  moment  the  execution 
is  placed  in  the  hands  of  an  officer  for  collection.^*  The  plaintiff  in  a  junior  judg- 
ment by  suing  out  execution  and  levying  upon  land  acquires  priority  over  an  older 
judgment  upon  which  execution  is  subsequently  issued.®'  "\Miere  a  chattel  mort- 
gage was  not  filed  as  required  by  law,  the  mortgagor  could  transfer  the  property  so 
as  to  vest  in  transferee  a  title  superior  to  the  rights  of  the  judgment  creditor.®' 

(§  8)  F.  Relinquishment  and  dissolution  of  levy.  Replevin. — A  le/y  is  not 
abandoned  by  leaving  ponderous  articles  on  the  debtor's  premises  in  charge  of  a 
custodian  in  the  employ  of  the  debtor,  who  continues  using  them.®^  In  Iowa,  prop- 
erty cannot  be  replevied  from  an  officer  by  the  owner  unless  he  shows  it  to  be  ex- 
empt.®* Where  the  property  is  returned  to  him  on  his  executing  an  undertaking, 
it  is  his  duty  to  retain  the  property  in  his  possession  until  determination  of  the  re- 
plevin suit,®®  and  an  attempted  sale  meantime  will  be  restrained  by  injunction.®" 

(§  8)  G.  Release  of  property  on  receipts  or  forthcoming  or  delivery  bonds. — 
Garnishees,  receipting  for  property  of  the  judgment  debtor  delivered  to  them  by  the 
sheriff,  are  estopped  from  showing  that  the  sheriff  never  had  possession.®^  An 
adjudication  in  favor  of  plaintiff  in  execution  proceedings  is  necessary  to  right 
to  proceed  on  a  forthcoming  bond.®^  A  surety  on  a  forthcoming  bond  is  released 
from  liability,  where  the  levying  officer  subsequently  seized  and  sold  the  property 
under  a  lien  of  superior  dignity,  applying  the  proceeds  to  such  superior  lien.®^ 

(§8)  H.  Liability  of  officer  for  loss  of  property  levied  upon. — A  sheriff  mak- 
ing a  levy  is  not  excused  from  liability  for  loss  of  the  property  by  the  fact  that  the 
attorney  of  plaintiff  permitted  him  to  leave  the  property  of  the  debtor  until  it 
could  be  disposed  of.®* 

(§8)  I.  Effect  of  death  of  execution  debtor. — The  death  of  the  execution 
debtor  after  issuance  of  execution  will  not  affect  validity  of  levy  made  thereunder.®' 


by  direction  of  plaintiff's  attorney  in  order 
tliat  another  execution  might  be  Issued  to 
another  constable,  is  only  prima  facie  evi- 
dence of  such  fact  in  an  action  against  the 
constable  for  failure  to  execute  writ — State 
V.  Rainey  (Mo.  App.)  73  S.  "W.  250. 

81.  A  constable  may  require  an  indemnity 
bond  on  claim  of  property  by  a  third  person 
though  he  has  previously  attached  the  prop- 
erty in  the  suit  on  which  the  execution  was 
based — Smith  v.  Rogers  (Mo.  App.)  73  S.  "W. 
243.  An  indemnity  bond  is  not  invalidated 
by  a  variance  between  the  levy  and  bond  as 
to  name  of  a  machine  where  there  is  no  va- 
riance in  the  description  of  the  machine — Id. 
V\''here  a  constable  threatens  to  release  prop- 
erty claimed  by  third  persons,  unless  given 
a  bond  of  indemnity,  the  bond  is  a  good 
common  law  obligation  and  not  invalid  for 
duress — Id. 

82.  Canfleld  v.  Browning  (N.  J.  Law)  55 
Atl.    101. 

S3.  "Where  an  execution  against  several 
defendants  is  levied  on  certain  land,  and  the 
entry  of  levy  does  not  show  whose  proper- 
ty was  levied  on,  a  sale  and  deed  made 
under  the  levy  will  not  divest  the  title  of 
the  real  owner — Cooper  v.  Yearwood  (Ga  ) 
45    S.    B.    716. 


84.     Richart  v.  Goodpaster   (Ky.)   76  S.  W. 

831. 

S5.  Canfleld  v.  Browning  (N.  J.  Law)  55 
Atl.  101. 

86.  McDonald  v.  City  Trust,  Safe  Deposit 
&  Surety  Co.,  39  Misc.   (N.  Y.)   552. 

87.  Meyer  v.  Michaels  (Neb.)    95  N.  T\^  63. 

88.  Code  Iowa,  §  4163 — Young  v.  Evans. 
118  Iowa,   144. 

89.  Rev.  St.  Ohio,  1892,  §  68  20— Uphaus  v. 
Roof,  68  Ohio  St.  401.  There  is  a  prima 
facie  case  of  regularity  where  there  is  an 
admission  that  an  offlcer  held  tlie  goods  in 
pursuance  to  an  execution  issued  on  a  judg- 
ment rendered — Gruber  v.  Janns,  84  N.  Y. 
Supp.    882. 

«0.     Uphaus  V.  Roof,  68  Ohio    St.  401. 

91.  Colbath   v.   Hoefer    (Or.)    73    Pac.   10. 

92.  Pepperdine  v.  Hymes  (Mo.  App.)  72  S. 
W.    1078. 

93.  Floyd  v.  Cook  (Ga.)    45  S.  E.   441. 

94.  Johns  V.    Robinson    (Ga.)    45   S.    E.    727. 

95.  Under  the  laws  of  Indiana  the  death 
of  a  judgment  debtor  does  not  affect  an  ex- 
ecution issued  before  his  death  (Burns'  Rev. 
St.  1901,  §§  802,  2484) — Blumenthal  v.  Tibblts 
(Ind.)  66  N.  E.  159.  A  sheriff's  sale  after  the 
death  of  the  execution  debtor  on  an  execution 
issued  in  his  lifetime,  will  not  be  set  aside. 


§  9 


THE  SALE. 


1183 


(§8)  J.  Liability  for  wrongful  levy. — A  levying  officer  is  not  bound  to  in- 
quire into  the  validity  of  proceedings  on  which  execution  is  based.^**  A  sheriff  is  lia- 
ble for  levy  on  exempt  property."  The  action  for  selling  exempt  property  is  not  for 
misconduct  in  office  within  acts  conferring  jurisdiction  on  certain  courts.^^  A  sher- 
iff may  not  interpose  an  appraisement  as  a  defense  where  he  fails  to  inform  apprais- 
ers of  exemption  and  appraisement  is  made  without  allowance  therefor.''*  A  seiz- 
ure under  void  process  is  a  naked  trespass  as  against  a  stranger  in  rightful  posses- 
sion of  property.^  A  mortgagee  may  recover  for  conversion  against  one  who  sells 
mortgaged  chattels  on  execution  against  the  mortgagor  after  he  is  in  default  so 
that  the  mortgagee's  right  of  possession  is  complete.^  The  purchaser  taking  no 
part  in  the  removal  of  property  is  not  jointly  liable  with  the  officer  for  the  tres- 
pass and  conversion.'  The  fact  that  the  debtor  had  personal  property  sufficient 
to  satisfy  the  execution  at  the  time  of  the  levy  on  land  will  not  invalidate  the 
sale,  the  debtor  having  a  remedy  against  the  sheriff  for  damages  sustained.*  A 
petition  alleging  that  there  were  no  proceedings  on  which  an  execution  could  issue, 
but  that  to  exact  illegal  costs  an  execution  was  levied  on  plaintiff's  property,  sets 
out  a  cause  of  action  against  the  levying  officer.'  An  officer  levying  on  live  stock 
belonging  to  a  third  person  must  deliver  same  to  the  party  and  is  not  relieved 
from  liability  by  turning  it  back  on  the  range  without  notice  to  him.®  Where 
a  judgment  has  been  paid,  there  is  no  issue  of  its  validity  for  a  jury  in  an  action 
for  wrongful  levy.'^     Cases  on  damages  for  wrongful  levy  are  found  in  footnote.^ 

§  9.  Claims  of  third  'persons. — Affidavit  of  property  required  on  claim  by 
third  person  is  not  necessary,  when  at  the  time  of  the  seizure  the  property  is  in 
the  lawful  possession  of  the  claimant.®  The  issue  is  between  a  right  to  subject 
the  property  and  the  claimant's  title,  not  the  right  of  property  between  claimant 


though  at  the  time  of  the  sale  no  legal  rep- 
resentative of  the  deceased  debtor  had  been 
appointed  and  there  were  minor  heirs  and 
debts  due  by  the  estate  of  a  higher  dignity 
than  the  lien  of  the  execution — Hudgins  v. 
McLain.    116   Ga.    273. 

96.  Wilbur  v.  Stokes.  117  Ga.  545. 

97.  Thompson  v.  Donahoe  (S.  D.)  92  N. 
"W.  27;  Baughn  v.  Allen  (Tex.  Civ.  App.)  73 
S.    W.    1063. 

98.  99.  Strong  V.  Combs  (Neb.)  94  N.  W. 
149. 

1.     Hagar  v.  Haas  (Kan.)  71  Pac.  822. 
3.     Biehler  v.  Irwin,   84  N.   Y.   Supp.   574. 
Hoxsie    V.    Nodine    (C.    C.    A.)    123    Fed. 


3. 

379. 
4. 


6. 


Allen  V.  Farley  (Ky.)   76  S.  W.  538. 
Hathaway  v.  Smith,  117  Ga.  946. 
KiefCer  v.   Smith    (S.   D.)    93   N.  W.   645. 

7.  Deleshaw  v.  Edelen  (Tex.  Civ.  App.)  72 
S.  W.  413. 

8.  In  an  action  for  wrongful  levy  on  the 
ground  that  defendant  was  denied  the  right 
to  point  out  property  to  be  levied  on,  the 
measure  of  damages  is  the  value  of  the 
goods  seized  at  the  time  of  the  levy  less 
the  amount  of  the  judgment — Avindino's 
Heirs  v.  Beck  (Tex.  Civ.  App.)  73  S.  W.  539. 
In  an  action  against  a  sheriff  for  trespass, 
the  levy  being  unlawful  and  the  sale  llleg-al, 
the  plaintiff  will  not  be  liable  for  the  ex- 
penses of  the  levy  and  sale — Hillman  v.  Ed- 
wards (Tex.  Civ.  App.)  74  S.  W.  787.  In  an 
action  for  unlawful  seizure  of  property  un- 
.fler  an  execution  where  defendant  sets  up 
the  judgment  in  justification,  but  asks  no 
fifflrmative   relief  and    prays    that    it    be    dis- 


missed with  costs,  he  is  not  entitled  to  a 
set-off  against  plaintiff's  damages  in  any 
amount — Id.  In  an  action  against  an  of- 
ficer for  forcible  entry  of  premises  to  seize 
property  on  an  execution,  it  is  proper  to 
show  what  amount  of  the  proceeds  of  the 
property  taken  subject  to  the  execution  had 
been  credited  on  the  judgment  in  mitiga- 
tion of  the  damages — Id.  The  measure  of 
damages  for  trespass  committed  by  an  of- 
ficer in  making  a  levy  and  seizing  property, 
is  the  value  of  the  property  as  assessed  by 
the  jury  less  the  amount  that  had  been  cred- 
ited on  the  judgment — Id.  In  an  action  for 
wrongful  execution,  one  compelled  to  em- 
ploy attorneys  may  recover  attorney's  fees 
as  part  of  the  punitive  damages — Deleshaw 
V.  Edelen  (Tex.  Civ.  App.)  72  S.  W.  413.  An 
instruction  submitting  profits  lost  as  a  meas- 
ure of  damages  is  properly  given  where  the 
petition  in  an  action  for  wrongful  execution 
avers  a  levy  on  plaintiff's  business  and  in- 
jury to  his  business  and  trade — Id.  The 
measure  of  damages  is  the  value  of  the  chat- 
tels, the  difference  between  it  and  the  mort- 
gage debt  being  the  subject  of  an  account 
between  the  parties  on  an  accounting — Bieh- 
ler V.  Irwin,  84  N.  Y.  Supp.  574.  $250  held 
not  inadequate  for  levy  of  a  wrongful  execu- 
tion— Avindino's  Heirs  v.  Beck  (Tex.  Civ. 
App.)  73  S.  W.  539.  In  an  action  for  dam- 
ages for  levy  on  a  homestead  there  can  be  no 
recovery  for  worry  and  discomfort  and  fail- 
ure to  dispose  of  the  property  unless  there 
is  a  showing  of  the  actual  loss  suffered — 
Whitworth  v.  McKee  (Wash.)  72  Pac.  1046. 
9.  Gen.  St.  Minn.  1894,  §  5296 — Wood  v. 
Matter.    88    Minn.    123. 


1184 


EXECUTIONS. 


§  9 


and  defendant  in  execution."  In  Texas,  a  levy  made  by  seizing  propeHy  instead 
of  by  giving  notice  as  provided  by  the  laws,  though  one  of  the  claimants  was  in 
possession  as  joint  owner,  is  not  void,  though  irregular."  A  claimant  of  prop- 
erty with  knowledge  of  its  seizure  who  sued  the  officer  but  dismissed  his  suit 
without  fault  of  the  officer  could  not  afterwards  prosecute  his  claim  though  he 
was  not  served  with  the  statutory  notice  by  the  officer.^^  \\^iere  property  is  re- 
turned to  claimant  on  the  execution  of  bond  to  the  sheriff,  the  title  vests  in  the 
claimant  and  the  execution  lien  is  at  an  end."  One  giving  a  claimant's  bond,  a 
proceeding  under  the  Texas  statute  to  test  rights  to  the  property,  waives  the  man- 
ner of  the  levy.^*  In  a  claim  case,  the  plaintiff  in  fi.  fa.  assumes  the  burden  of 
proof.^^  On  the  trial  of  a  claimant's  issue,  plaintiff  to  recover  must  offer  in  evi- 
dence the  Judgment;  the  offer  of  the  execution  and  the  judgment  roll  is  not  suffi- 
cient.^* See  note  for  sufficiency  of  evidence  in  claim  cases.^^  Under  the  laws  of 
Louisiana,  minors  whose  property  has  been  illegally  sold  as  that  of  another  per- 
son are  not  forced  to  attack,  by  direct  action,  title  of  the  party  in  possession;  they 
may  ignore  it  as  an  absolute  nullity,  and  institute  a  petitory  action  for  its  recov- 
ery." 

Property  levied  on  may  be  replevined  from  the  officer  by  persons  having  prop- 
erty therein  other  than  the  execution  defendant.*" 


10.  Volusia  County  Bank  v.  Bigelow  (Fla.) 
33  So.   704. 

11.  Rev.  St.  1895,  art.  2349,  provides  for 
taking  possession  of  personalty  on  levy 
where  the  defendant  in  execution  is  entitled 
to  possession;  where  lie  has  an  interest  in 
the  personalty  but  is  not  entitled  to  pos- 
session the  levy  to  be  made  by  giving  notice 
to  the  person  entitled  to  possession  or  to  one 
of  them  where  there  are  several.  Article 
2352  requires  a  levy  on  the  interest  of  a 
partner  to  be  made  by  leaving  a  notice  with 
one  or  more  of  the  partners  or  with  a  clerk 
— Davis  V.  Jones  (Tex.  Civ.  App.)  75  S.  W.  63. 

13.  Small  V.  Finch  (Ind.  App.)  66  N.  E. 
1015.  Burns'  Rev.  St.  1901,  §§  1613.  1614,  re- 
quires officer  to  give  notice  within  20  days 
where   it   is   likely   that   there   are  claimants. 

13.  Meyer  v.  Knight,  21  Pa.  Super.  Ct.  1. 
In  West  Virginia,  the  delivery  to  the  sher- 
iff of  a  suspending  bond  by  a  claimant  of 
property  levied  on  under  a  fi.  fa.  stays  the 
execution  and  the  sale  is  void  (Code  W.  Va. 
1899,  c.  107.  §  4) — August  v.  Gilmer  (W.  Va.) 
44  S.  E.  143.  A  purchaser  at  a  sale  after  the 
claimant  of  property  has  given  a  suspending 
bond  acquires  no  title  to  the  property  and 
on  a  rule  to  show  cause  may  be  summarily 
required  to  return  the  property  to  the  cus- 
tody   of    the    sheriff — Id. 

14.  Property  levied  on  as  the  property  of 
a  debtor  was  claimed  by  two  joint  claimants, 
one  of  whom  was  the  debtor's  wife,  the  bill 
of  sale  ran  to  the  debtor  and  he  signed 
notes  for  deferred  payments,  but  had  paid 
nothing,  although  claimant  had  paid  certain 
sums  on  account  of  the  purchase  price,  and 
the  money  paid  by  the  debtor's  wife  and  part 
of  it  paid  by  the  other  claimant  was  paid  on 
one  of  the  notes  after  the  levy  was  made. 
Held  not  to  show  no  interest  in  the  property 
subject  to  the  execution — Davis  v.  Jones 
(Tex.  Civ.  App.)   75  S.  W.  63. 

15.  Cannon  v.  Shahan    (Ga.)    44   S.   E.   824. 

16.  Blalack  v.   Stevens   (Miss.)    33   So.   508. 

17.  Where  a  security  deed  is  given  to  se- 
cure a  note  and  after  judgment  on  the  note 


the  land  re-conveyed  and  execution  levied, 
a  claim  is  filed  by  a  third  person,  proof  of 
the  possession  of  land  by  the  grantor  in 
tlie  security  deed  at  the  time  of  its  execu- 
tion, makes  a  prima  facie  case  against  the 
claimant — Ford  v.  Nesmith,  117  Ga.  210.  On 
the  trial  of  a  claim  filed  to  the  levy  of  an  ex- 
ecution issued  on  a  mortgage  foreclosure, 
where  the  plaintiff  in  execution  fails  to  in- 
troduce any  evidence  of  title  or  possession 
in  the  mortgagor  at  the  time  of  the  execu- 
tion of  the  mortgage,  and  a  prima  facie  case 
against  the  claimant  is  not  made  out.  a 
verdict  finding  the  property  subject,  should 
be  set  aside  as  contrary  to  the  law — Jones 
V.  Hightower,  117  Ga.  749.  There  is  evidence 
that  the  property  seized  was  subject  to  the 
levy,  where  the  bill  of  sale  to  a  claimant  was 
made  about  the  time  of  bringing  the  action, 
and  the  consideration  was  for  services  ren- 
dered a  father  by  a  son  during  his  minority, 
and  the  sale  was  not  intended  to  be  absolute 
— Parsons  v.   Smith   (Ga.)    45   S.  E.   697. 

18.  Jewell  V.  De  Blanc  (La.)  34  So.  787. 
Where  property  belonging  to  m'inors  has 
been  levied  on  and  sold  as  the  property  of 
another,  a  bad  faith  purchaser  at  such  sale 
in  possession  cannot  require  as  a  condition 
to  the  commencement  of  a  suit  for  its  recov- 
ery, that  plaintiff  offer  to  reimburse  him 
the  amount  he  has  paid  for  the  property — 
Id. 

19.  Evidence  sufficient  to  show  that  plain- 
tiff in  replevin  was.  the  owner  and  entitled 
to  posse-ssion  of  property  levied  on  as  prop- 
erty of  other  parties — Leschen  &  Sons  Rope 
Co.  V.  Craig  (Colo.  App.)  71  Pac.  885.  Where 
one  of  the  parties  to  replevin  claims  the 
property  by  virtue  of  a  levy  made  by  him 
as  an  officer,  it  is  proper  to  direct  the  Jury 
in  case  they  find  for  him,  to  find  the  fair, 
reasonable  and  market  value  of  the  prop- 
erty without  at  the  same  time  directing  their 
attention  to  the  manner  in  which  the  prop- 
erty was  sold  by  the  officer  and  his  w^ant  of 
discretion  possessed  by  other  owners  of  goods 
to    accept    or    reject    such    offers    as    are    not 


§  u 


THE   SALE. 


1185 


§  10.  Appraisement. — Under  the  Kentucky  code,  the  execution  lien  is  not 
lost  by  the  fact  that  the  constable  levying  on  joint  property  failed  to  make  an 
inventory  and  appraisal.^"  Wliere  the  sale  is  made  with  reference  to  a  tax  lien, 
the  purchaser  taking  advantage  of  the  deduction  thereof  from  the  appraisement 
may  not  deny  the  validity  of  taxes  in  a  proceeding  to  enjoin  their  collection." 
Certificates  of  lien  against  land  sold  on  execution  may  be  waived,  and,  where  waived, 
the  sheriff  may  proceed  with  the  sale  without  them.^^  An  objection  as  to  the  form 
of  certificates  of  liens  goes  to  the  appraisement  and  must  be  raised  before  sale.^* 
On  allotment  of  the  wife's  dower  as  against  a  purchaser  claiming  under  execu- 
tion sale  against  the  husband,  the  value  of  permanent  improvements  made  by  the 
purchaser  cannot  be  taken  into  consideration  in  estimating  the  value  of  the  land.^* 

§  11.  Execution  sales.  In  general. — A  sale  will  relate  back  to  an  attach- 
ment.^'' Under  the  Kentucky  laws,  all  sales  under  execution  of  land  of  which 
another  person  has  adverse  possession  are  null  and  void.-^ 

Notice  and  advertisement. — The  description  is  sufficient  where  lands  levied 
on  can  be  distinguished  and  identified.^''  It  is  not  important  that  the  description 
includes  more  property  than  that  subject  to  levy.^®  In  New  York,  provision  is 
made  for  inclusion  of  diagram  in  notice.^®  The  right  to  raise  the  question  of  in- 
sufficiency of  description  may  be  waived.'"  In  Washington,  the  notice  must  be 
posted  in  a  conspicuous  place  on  the  land  to  be  sold,  but  where  tracts  are  widely 
separated  it  is  not  necessary  that  notice  should  be  posted  on  all  such  tracts.^^  Post- 
ing in  a  public  place  at  the  court  house  satisfies  a  requirement  that  notice  be  posted 
at  the  court  house  doors.^^  An  act  requiring  publication  of  notice  once  a  week 
during  a  certain  number  of  weeks  does  not  allow  a  shortening  of  the  period  by 
publishing  the  last  notice  early  in  the  week.'* 

Conduct  of  sale. — Under  a  provision  requiring  sales  to  take  place  between 
specified  hours,  a  sale  at  a  later  hour  is  void.'*  Lands  should  be  sold  in  the  man- 
ner most  likely  to  produce  the  largest  returns.  This  will  ordinarily  result  where 
they  are  offered  in  parcels."*     The  sale  must  be  made  for  cash.'^     Where  there  is 


consfiered  fair — Meyer  v.  Michaels  (Neb.)   95 
N.  W.  63. 

20.  Civ.  Code  Ky.  §  660 — Richart  v.  Good- 
paster.   25  Ky.   L.   R.    889,   76   S.   W.   831. 

21.  Omaha  Sav.  Bank  v.  Omaha  (Neb.)  95 
N.  W.  593;  Equitable  Trust  Co.  v.  Omaha 
(Neb.)  95  N.  W.  650. 

22.  Moore  v.  Hornsby  (Neb.)  95  N.  W. 
85S. 

23.  Northwestern  Mut.  Life  Ins.  Co.  v. 
Marshall  (Neb.)  95  N.  W.  357.  Nebraska 
Code  does  not  require  the  use  of  a  seal  by 
officers  who  have  no  seal,  and  it  is  sufficient 
if  they  certify  under  their  hands — Id. 

24.  Ewell  V.  Tye,  25  Ky.  L.  R.  976,  76  S.  W. 
875. 

25.  Poor  V.  Chapin,   97   Me.   295. 

26.  Farmers'  Bank  of  Beattyville's  As- 
signee V.  Pryse,  25  Ky.  L.  R.  807,  76  S.  W. 
358. 

27.  Canfield  v.  Browning  (N.  J.  Law)  55 
Atl.  101.  Land  described  as  a  certain  parcel 
of  land  containing  a  given  number  of  acres 
situated  in  the  northeast  corner  of  a  cer- 
tain league  of  land  is  insufficient — Edring- 
ton  V.  Hermann  (Tex.)  77  S.  W.  408. 

28.  Barber  Asphalt  Pav.  Co.  v.  Klene  (Mo. 
App.)  74  S-  W.  872.  A  notice  of  sale  is  not 
Invalid  by  reason  of  including  more  than 
the    sheriff    is   authorized    to,    or    in    fact    did 

aeil Northwestern  Mut.  Life  Ins.  Co.  v.  Mar- 

BhaU   (Neb.)    95  N.   W.   357. 

Curr.  Law — 75. 


29.  Francis  v.  "Watkins,  72  App.  Dlv.  (N. 
Y.)  15.  A  purchaser  will  be  relieved  on  the 
ground  of  mistake  in  a  diagram  included  in 
notice  where  the  mistake  was  unintentional 
and  the  property  was  correctly  described  in 
the  notice — Id.  -That  purchaser  was  not  mis- 
led by  a  mistake  in  diagram  into  bidding  an 
amount  in  excess  of  the  value  is  shown 
where  another  bidder  bid  within  $50  of  the 
successful   bid   of  $54,500 — Id. 

30.  Where  a  debtor's  grantee  suing  an  ex- 
ecution purchaser  to  enjoin  the  execution  ot 
a  deed,  alleges  that  the  purchaser  levied  on 
the  land  as  the  property  of  the  debtor  and 
advertised  a  sale  and  purchased  the  same, 
she  may  not  take  advantage  of  an  insuffi- 
ciency of  the  description  in  the  sale  proceed- 
ings— McCormick  v.  McCormick  Harvesting 
Mach.  Co.  (Iowa)  95  N.  W.  181. 

31.  Laws  Wash.  1899,  p.  85 — Whitworth 
V.  McKee  (Wash.)   72  Pac.  1046. 

32.  Whitworth  v.  McKee  (Wash.)  72  Pac. 
1046. 

33. 
30. 
34. 


Currens   v.   Blocher,   21   Pa.   Super.   Ct. 


Ind.  T.  Ann.  St.  1899,  §  2163 — Hancock 
V.  Shockman   (Ind.  T.)   69  S.  W.  826. 

35.  Palmour  v.  Roper  (Ga.)  45  S.  B.  790. 
A  sheriff  is  not  required  to  sell  lots  separate- 
ly by  reason  that  the  deed  securing  the  notes 
described  the  property  by  the  number  of  the 
lots  composing  the  tract,  the  description  not 


1186 


EXECUTIONS. 


12 


no  collusion,  a  wife  may  purchase  her  husband's  land  at  execution  sale  and  acquire 
good  title  to  the  same  which  may  not  be  subjected  to  the  payment  of  his  debt." 

Bids  and  acceptance  thereof.— On  default  of  bid,  the  sheriff  may,  on  repay- 
ment of  the  advertising  fees,  treat  the  matter  as  no  sale,  and  sell  again.^^  On  de- 
fault of  bidder,  the  purchaser  is  liable  for  the  difference  between  the  amount  of 
the  bid  and  the  price  for  which  the  property  subsequently  sold.*'  Inadequacy^  of 
bid  at  execution  sale  is  not  notice  to  the  grantee  of  the  purchaser  of  want  of  title 
in  the  judgment  debtor.*"  An  agreement  to  bid  in  property  and  hold  it  in  trust 
for  one  who  is  insolvent  is  void  as  against  creditors.*^ 

Liability  of  officer  for  failure  to  sell— A  sheriff  in  an  action  for  failure  to  sell 
must  make  it  affirmatively  appear  that  he  parted  with  possession  under  order  of 
a  competent  court  or  that  the  execution  could  not  be  legally  enforced."  There 
can  be  no  recovery  of  damages  against  a  sheriff  for  refusal  to  sell  realty  on  execu- 
tion, where  there  is  a  complicated  condition  of  title,  and  no  damage  appears  to  have 
been  sustained  by  the  parties  by  reason  of  such  refusal.*'  An  action  will  not  lie 
against  an  officer  for  failure  to  execute  the  writ  where  the  failure  complained  of 
was  directed  by  the  party's  attorney.**  Where  the  equity  of  redemption  is  levied 
on,  it  requires  the  cansent  of  the  mortgagor,  mortgagee,  and  plaintiff  in  fi  fa  to 
sell  the  entire  interest  in  the  property  so  as  to  free  it  from  the  strict  lien.** 

Proceeds. — The  courts  of  New  Jersey  may  order  money,  which  by  the  terms 
of  the  writ  is  payable  to  a  person  named,  to  be  paid  into  court.*"  The  surplus 
proceeds  of  the  sale  should  be  turned  over  to  the  estate  of  a  deceased  judgment 
debtor.*''     The  judgment  creditor  has  a  right  of  action  for  wrongful  disposition.** 

§  13.  Return  or  certification  of  sale  to  court  and  confirmation.  Return. — 
Statutes  fixing  time  for  return  do  not  apply  to  special  executions.*®  Under  a  code 
provision  allowing  return  nulla  bona  to  be  made  two  days  after  issuance  of  execution, 
an  execution  issued  on  the  21st,  and  returned  nulla  bona  on  the  23d,  is  invalid.^** 
A  sheriff  is  exonerated  for  failure  to  make  return  where  he  shows  that  the  levy 
was  abortive  by  reason  of  the  failure  of  the  creditor  to  give  a  proper  indemnifying 
bond."*^  An  order  to  an  officer  to  return  an  execution  should  not  direct  the  form 
of  the  return."     An  officer's  return  giving  only  the  initials  of  plaintiff's  name  is 


necessarUy  implying  that  the  lots  were  sepa- 
rately pledged — Id.  An  injunction  will  issue 
to  restrain  a  sheriff  from  selling  realty  in 
bulk,  where  a  showing  is  made  that  larger 
returns  will  be  received  from  a  sale  in  par- 
cels— Reynolds  &  H.  Estate  Mortg.  Co.  v. 
Kingsberry  (Ga.)  45  S.  E.  235.  The  objec- 
tion that  lots  should  have  been  sold  sepa- 
rately may  not  be  raised  for  the  first  time 
on  appeal — Allen  v.  Farley,  25  Ky.  L.  R.  930. 
76  S.  W.  538.  After  lapse  of  45  years  a  sale 
will  not  be  held  invalid  for  sale  in  bulk — 
Dixon  V.  Dixon,   38  Misc.    (N.   Y.)    652. 

36.  Bradley  v.  Challoner's  Sons  Co..  103 
111.  App.  618.  A  purchaser  of  land  under  a 
levy  against  a  resulting  trust  deed  may  not 
hold  the  land  as  against  the  beneficiaries  of 
the  trust,  unless  he  pays  a  consideration 
therefor  other  than  the  giving  of  credit  for 
the  price  on  the  judgment — Hicks  v.  Pogue 
<Tex.  Civ.  App.)    76  S.  W.   786. 

37.  Bracken  v.  Milner  (Mo.  App.)  73  S.  W. 
•225. 

38.  And  may  not  compel  a  payment  of  the 
i)ld Bradley  v.  Challoner's  Sons  Co.,  103  111. 

App.   618. 

39.  Hughes  V.  Miller   (Pa.)   55  All.  793. 

40.  Hart  v.  Gardner   (Miss.)    33  So.   442. 


Gibson  v.  Jenkins,  97  Mo.  App.  27. 
Woodward   v.    McDonald,    116    Ga.    748. 
Porter   v.    Trompen    (Neb.)    96    N.    W. 

State  V.   Rainey   (Mo.   App.)    73    S.  W. 


41. 
42. 

43. 

226. 

44, 
250. 

43.     Civ.  Code,  S  2759 — Milner  v.  Pitts  (Ga.) 
45  S.  E.   67. 

4«.     Gifford 


McQuinness,    63    N.    J.    Eq. 


834. 
47. 

48, 


Carr  v.  Berry,  116  Ga.  372. 
The  presumption  of  application  of 
proceeds  to  the  payment  of  the  Judgment 
may  be  rebutted  as  far  as  the  judgment 
debtor  is  concerned  that  the  creditor  was 
deprived  of  the  proceeds  by  operation  of  law 
or  the  act  of  the  judgment  debtor — Adams  v. 
National  Bank  of  Commerce,  30  Wash.  20.  70 
Pac.  105.  In  an  action  against  a  sheriff  for 
a  wrongful  disposition  of  proceeds  plaintiff 
must  not  only  show  a  lien  but  a  right  to 
participate  and  payment  to  persons  not  en- 
titled— Dowd  v.   Crow,    205   Pa.    214. 

49.     Norton  v.  Reardon   (Kan.)   72  Pac.  861. 

60.  Graves   v.    Spry    (Del.)    55   Atl.    334. 

61.  State  V.  Jenkins,  170  Mo.  16. 

62.  Mollineaux   v.   Mott,   78    App.    Dlv.    (N. 
Y.)    493. 


§  14 


REDEMPTION 


1187 


STifficient."  A  return  may  be  amended  by  leave  of  court."  An  entry  by  an  offi- 
cer on  an  execution  issued  from  a  justice's  judgment,  unless  recorded  on  the  exe- 
cution docket  of  the  superior  court  of  the  county  where  defendant  resides,  will 
not  arrest  the  running  of  the  Georgia  Dormancy  Statute."^' 

Confirmation.— K  sale  on  execution  is  not  complete  until  confirmed  by  the 
court.^«  A  confirmation  continues  in  full  force,  notwithstanding  an  appeal  there- 
from, until  reversed."  A  sale  is  sufficiently  confirmed  by  a  trial  had  before  a  jury 
who  find  that  the  sale  was  valid,  the  verdict  being  approved  by  the  trial  court  and 
judgment  rendered.^«  Under  the  laws  of  Washington,  it  is  not  required  that  no- 
tice be  given  a  debtor  of  a  motion  for  confirmation.'*^  Where  a  judgment  on  which 
the  sale  was  made  had  been  paid  when  the  execution  was  issued,  and  an  agree- 
ment was  made  to  satisfy  the  same,  a  motion  to  set  aside  the  confirmation  of  the 
sale  should  have  been  sustained.®" 

§  13.  Purchaser's  certificate  of  sale.— The  description  of  realty  in  the  cer- 
tificate of  purchase  is  sufficient,  though  not  as  particular  as  that  required  in  tax 
sales."  There  is  no  presumption  of  knowledge  of  secret  equities  against  the  as- 
signee of  a  certificate.®^ 

§  14.  Redemption.— The  purchaser  acquires  no  right  to  the  possession  of  fix- 
tures during  the  redemption  period.®^  A  redemption  terminates  the  effect  of  a 
sale."  Judgment  creditors  having  a  lien  may  redeem.®'^  A  debtor  may  confess 
a  judgment  expressly  for  the  purpose  of  enabling  the  judgment  creditor  to  redeem 
if  there  is  a  bona  fide  indebtedness  existing  and  due  to  such  creditor.®*  The  as- 
signee of  the  undivided  interest  of  joint  owner  of  judgment  may  redeem  from  a 
prior  lien  to  the  same  extent  and  for  the  same  purpose  as  the  assignor."  Gen- 
erally an  attaching  creditor  has  no  enforceable  lien  entitling  him  to 'redeem  from 
a  former  execution  sale.®^  The  grantee  of  an  unrecorded  deed  is  not  such  a 
creditor  of  the  grantor  as  will  entitle  him  to  redeem  under  the  laws  of  Michi- 
gan.®* The  right  is  denied  to  the  grantee  of  a  fraudulent  conveyance.^®  Eedemp- 
tion  by  a  creditor  taking  a  quit  claim  from  the  o\\Tier  will  not  displace  the  liens 
of  judgments  obtained  by  assignees  of  certificates  of  sale." 


Poor   V.    Chapin,    97    Me.    295. 
State  V.  Jenkins,  170  Mo.  16. 
Smith  V.  Bearden   (Ga.)   45  S.  E.  59. 
Hendryx    v.    Evans    (Iowa)    94    N.    W. 


53. 
54. 
55. 
5C. 

853. 

57.  Hendryx  v.  Evans  (Iowa)  94  N.  "W.  853. 
On  affirmance  a  confirmation  order  is  ratified 
and  confirmed  as  originally  entered,  and  the 
rights  of  the  parties  relate  back  to  that 
time — Id. 

58.  Evidence  held  insufficient  to  sustain 
the  claim  of  debtor's  children,  that  property 
levied  upon  belonged  to  them — Smith's  Heirs 
V.  Johnston   (La.)   34  So.  677. 

59.  Whitworth  v.  McKee  (Wash.)  72  Pac. 
1046. 

60.  Linton  V.  Gathers  (Neb.)  95  N.  "W. 
1044. 

61.  McCormick  v.  McCormick  Harvesting 
Machine  Co.    (Iowa)   95  N.  W.  181. 

62.  Blumenthal  v.  Tibbits  (Ind.)  66  N.  E. 
159. 

63. 
64. 
65. 


Off  V.   Finkelstein,    200  111.   40. 

Brand  v.  Baker,  42  Or.  426,  71  Pac.  320. 

Byers  v.  McEniry,  117  Iowa,  499.  The 
holders  of  a  subsequent  judgment  lien  may 
redeem  by  paying  a  proper  amount  to  the 
clerk,  and  need  not  produce  a  certified  copy 
of  the  Judgment  docket,  files  and  records  on 
which  the  redemption  is  based,  but  it  Is  suf- 


ficient If  the  clerk  has  knowledge  thereof 
and  the  papers  are  called  to  his  attention- 
Hunter  v.  Mauseau  (Minn.)  97  N.  W.  651.  In 
California,  the  purchaser  at  execution  sale 
acquires  a  title  allowing  him  to  redeem 
from  another  sale  but  this  does  not  divest 
the  judgment  creditor  of  his  right  also  to 
redeem — Pollard  v.  Harlow,  138  Cal.  390  71 
Pac.  454.  648.  Where  realty  has  been 'at- 
tached and  sold  according  to  law,  a  second 
attaching  creditor  takes  nothing  by  pur- 
chase under  his  execution  at  sheriff's  sale 
except  the  right  of  redemption  from  the 
sale  on  execution  under  the  first  attach- 
ment— Poor  V.   Chapin,   97  Me.   295. 

66.  Becker  v.  Friend,  200  111.  75. 

67.  Hunter  v.  Mauseau  (Minn.)  97  N  W 
651. 

68.  Code,  §  3989,  making  levy  a  lien  from 
entry  in  clerk's  office  is  intended  to  act  sim- 
ply as  a  lis  pendens — Byers  v.  McEniry  117 
Iowa,  499. 

69.  Spring  v.   Raymond    (Mich.)    95   N.   W. 


1003. 

70. 
74    S 

71. 


Warden  v.  Troutman,  25  Ky.  L    R    247 

W.    1085. 

Byers  v.  McEniry,  117  Iowa,  499.  A 
redemptioner  redeeming  under  a  quit  claim 
from  the  owner  may  not  claim  that  the  re- 
demption was  by  agreement  to  preserve  the 


1188 


EXECUTIONS. 


§   15 


Equity  will  entertain  a  bill  by  heirs  to  redeem  where  valuable  property  of 
decedent  was  sold  to  creditors  for  a  grossly  inadequate  amount.''^  One  seeking 
to  have  redemption  set  aside  must  act  promptly." 

One  entitled  to  redeem  from  two  sales,  the  last  of  which  covers  the  equity 
of  redemption,  must  pay  the  amount  of  both  purchases.'^*  The  purchaser  at  an 
execution  sale  holding  the  property  as  security  for  advancements  and  the  purchase 
price  is  entitled  to  interest  on  moneys  expended  to  pay  mortgages  necessary  to  the 
preservation  of  his  security.'^^  There  may  be  a  right  of  redemption  independent 
of  a  riirht  of  possession,  and  vice  versa.'"  A  purchaser  at  execiition  sale  is  not  liable 
for  rents  on  redemption  where  he  had  not  been  in  possession  and  had  not  received 
benefits  of  crops.^^  The  purchaser  may  consent  to  an  extension  of  the  time  to 
redeem.^^ 

§  15.  Deeds  and  title  under  sales. — The  successor  of  the  sheriff  making  a  sale 
may  execute  a  deed  to  assignee  of  the  heirs  of  a  deceased  certificate  holder  and  the 
deed  will  relate  back  to  the  time  of  the  sale.'^®  The  deed  may  be  avoided  for  in- 
sufHciency  of  description.^"  Under  the  Iowa  laws,  the  rights  of  a  purchaser  be- 
come vested  when  he  pays  his  money  for  a  sheriff's  certificate,  and  hence  an  act 
curino-  defective  certificates  of  acknowledgment  to  deeds  theretofore  executed  but 
which  expressly  provides  that  it  shall  not  apply  to  vested  rights  does  not  affect 
a  purchaser  who  paid  his  money  before  the  act  took  effect.^^ 

The  deed  passes  title  as  of  the  date  of  the  levy  and  free  from  later  incum- 
brances.^^    A  purchaser  acquires  no  greater  title  than  tlie  judgment  debtor  has.^^ 


land  subject  to  the  claims  of  himself  and 
other  creditors  under  a  parol  agreement  and 
that  this  purpose  having  failed  he  was 
entitled  to  return  of  the  redemption  money 
and  this  more  particularly  where  he  was  not 
a  party  to  the  agreement — Id. 

72.  Property  worth  $10,000  incumbered _f or 
$1,847  sold  to  creditor's  attorney  for  $500. 
Another  tract  worth  $15,000  sold  in  the  same 
manner  for  $835 — Barstow  v.  Beckett,  122 
Fed.    140. 

73.  The  holder  of  a  certificate  under  a 
iudgment  who  had  notice  of  redemption  a 
short  time  after  it  was  effected  but  brought 
no  action  to  set  it  aside  and  compel  issu- 
ance of  a  deed  to  him  until  six  years  later, 
was  guilty  of  laches  preventing  relief — 
Becker  v.  Friend.   200  111.  75. 

74.  Ky.  St.  1899.  §§  2364,  2365— Warden  v. 
Troutman.  25  Ky.  L.  R.  247,  74  S.  W.  1085. 

75.  Natter   v.    Turner    (N.    J.    Eq.)    55   Atl. 

7tf.  Hartman  Mfg.  Co.  v.  Luse  (Iowa)  96 
N.  W.  972.  Under  a  Code  provision  allowing 
tlie  debtor  to  redeem  realty  from  execution 
sale  at  any  time  within  a  year  from  the 
day  of  sale,  and  entitling  him  to  possession 
thereof  in  the  meantime,  a  judgment  cred- 
itor levying  on  and  purchasing  his  debtor's 
statutory  right  of  redemption  In  the  mort- 
gaged premises  at  foreclosure  sale  acquires 
no^right  to  the  possession  of  the  premises — 

77.  Laws  Wash.  1899.  p.  85,  C.  53,  §§  13,  15 

—Kennedy  v.  Trumble  (Wash.)  73  Pac.  698. 
Where  in  proceedings  to  redeem  the  state- 
ment of  rents  and  profits  is  not  sworn  to  the 
time  for  redemption  is  as  though  no  state- 
ment was   given    (Laws  Wash.  1899.  p.   85,   c. 

CO     CR   12     13) Id 

78.  Botts  v.  riotts.  25  Ky.  L.  R.  300.  74  S. 
W.  1093.  A  valid  agreement  by  an  execu- 
tion purchaser  to  permit  the  debtor  to  redeem 


does  not  require  that  the  time  for  such  re- 
lemption  should  be  fixed — Tlirockmorton  v. 
O'Reilly  (N.  J.  Eq.)  55  Atl.  56.  There  is  a 
■juflicient  consideration  where  the  creditor 
purchases  premises  at  a  grossly  inadequate 
sum — Id.  A  mere  parol  agreement  to  allow 
in  execution  debtor  to  redeem  land  made 
After  the  statutory  period  has  expired,  can- 
not be  enforced  by  the  debtor — Herring  v. 
Johnston,  24  Ky.  L.  R.  1940.  72  S.  W.  793. 

79.  Certificate  on  execution  sale  issued  40 
vears  thereafter — Dixon  v.  Dixon,  38  Misc. 
(N.   Y.)    652. 

SO.  A  sheriff's  deed  describing  land  as  a 
certain  number  of  acres  in  the  northeast 
corner  of  a  certain  league  is  void  for  insuf- 
ficiency of  description,  where  the  execution 
defendant  owned  no  land  in  the  extreme 
corner,  though  he  did  own  land  which  would 
have  been  included  in  a  square  survey  of  that 
number  of  acres  in  such  corner — Edrington 
V.  Hermann   (Tex.   Civ.   App.)    74   S.   W.  936. 

81.  Iowa  act  of  24th  Gen.  Assem.  c.  42 — 
Koch  V.  West,  118   Iowa,   468. 

S3.  Pepperdine  v.  Bank  of  Seymour  (Mo. 
App.)  73  S.  W.  890.  Where  the  deed  of  a 
purchaser  at  execution  sale  passes  the  legal 
title  and  is  recorded,  the  title  is  as  against 
one  claiming  under  a  later  deed  from  the 
execution  debtor  valid,  though  the  grantee 
of  the  execution  purchaser  makes  no  claim  to 
the  land — Williamson  v.  Gore  (Tex.  Civ. 
App.)    73   S.   W.   563. 

S3.  Costello  V.  Friedman  (Ariz.)  71  Pac. 
935;  Markley  v.  Carbondale  Inv.  Co.  (Kan.) 
73  Pac.  96.  The  thing  actually  sold  and 
transferred  is  the  real  interest  of  the  debtor 
in  the  property,  and  not  merely  his  Interest 
iS  determined  by  the  appraisers — Hart  v. 
Beardsley  (Neb.)  93  N.  W.  423.  The  title  of 
•jrrantee  of  swamp  lands  conveyed  by  a  coun- 
ty to  which  they  were  patented  by  the  state, 
grantee  having  been  in  actual  possession  by 


§  15 


THE  DEED  AND  TITLE. 


1189 


He  takes  title  subject  to  equities  of  third  persons  of  wliich  he  has  kno^-ledge,** 
and  this  rule  has  particular  application  to  a  creditor  purchasing  at  his  own  sale/"* 
iind  free  from  unrecorded  deeds'*'  and  trust  agreements  of  which  he  has  no  knowl- 
edge." A  purchaser  at  execution  sale  of  interest  of  heirs  takes  title  subject  to 
administration.^^  The  interest  of  a  mortgagee  in  land  is  not  affected  by  sale  un- 
der execution  against  the  mortgagor.*"  The  purchaser  of  land  subject  to  mort- 
gage buys  merely  the  right  to  redeem  the  land  by  paying  the  mortgage  debt/*'  and 
may  not  contest  its  validity,"  and  previous  to  redemption,  he  is  not  entitled  to 
possession.»2  In  the  absence  of  proceedings  to  set  aside  a  homestead  right,  an 
execution  sale  of  homestead  property  vests  in  the  purchaser  onl;^;  the  legal  title  to 
the  excess  over  the  amount  of  the  homestead  allowance.^^  The  sale  of  a  husband's 
realty  under  an  execution  on  a  judgment  against  him  alone  does  not  extinguish 
the  wife's  inchoate  right  of  dower.®*  Where  the  husband's  property  was  sold  un- 
der execution,  the  dower  right  of  the  wife  therein  is  to  be  determined  by  the  law 
in  force  at  the  time  of  the  sale.®'^ 

The  right  of  the  purchaser  to  protection  against  defects  affecting  the  sale  may 
depend  on  whether  he  is  a  bona  fide  purchaser."®     The  rights  acquired  by  a  bona 


a  tenant  claiming  title  to  the  whole,  is  su- 
perior to  the  title  acquired  under  execution 
sale  on  judgment  against  the  county  after 
the  county  had  parted  with  its  title — Houck 
V.   Patty    (Mo.   App.)    73    S.   W.    389. 

84.  Perry  v.  Trimble,  25  Ky.  L.  R.  725,  76 
S.  "W.  343.  A  judgment  creditor  taking  land 
on  execution  from  a  debtor  with  notice  of  an 
outstanding  equitable  title  in  another  is  In 
no  better  position  than  he  would  have  been 
had  he  with  such  notice  taken  a  direct  con- 
veyance from  his  debtor — Hengeveld  v.  Stuv- 
er,  104  111.  App.  362.  Where  there  is  no  af- 
firmative showing  that  one  purchasing  land 
at  execution  sale  subsequent  to  a  deed  by  the 
judgment  debtor  to  his  wife  purchased  with- 
out notice  and  In  good  faith,  parties  claim- 
ing through  the  wife  need  show  no  more 
than  the  sufficiency  of  the  deed  to  pass 
title — Watts  V.  Bruce  (Tex.  Civ.  App.)  72  S. 
W.  258. 

S.-.  Beidler  v.  Beidler  (Ark.)  74  S.  W.  13; 
Ferry  v.  Trimble,  25  Ky.  L.  R.  725,  76  S.  W. 
343;  Throckmorton  v.  O'Reilly  (N.  J.  Eq.)  55 
Atl.  56.  An  execution  creditor  having  notice 
of  the  existence  of  a  deed  should  proceed  by 
bill  in  aid  of  execution  before  sale  to  ascer- 
tain the  rights  of  a  judgment  debtor  in  the 
land — Spring  v.  Raymond  (Mich.)  95  N.  W. 
1003. 

86.  Hart  v.  Gardner  (Miss.)  33  So.  497.  A 
conveyance  by  a  husband  and  wife  and  pos- 
session by  their  grantee  was  not  construc- 
tive notice  to  a  purchaser  under  a  judg- 
ment against  the  husband  in  whose  name 
record  title  stood  when  judgment  was  ren- 
dered, of  a  prior  unrecorded  deed  from 
such  husband  to  his  wife  antedating  judg- 
ment— Koch  V.  West,  118  Iowa,  468.  Where 
the  judgment  creditor  before  recovery  of 
judgment,  had  no  notice  of  an  unrecorded 
deed  of  the  debtor,  a  purchaser  at  an  exe- 
cution sale  will  not  be  affected  with  notice 
given  on  the  day  of  sale,  as  he  is  entitled  to 
the  same  protection  as  the  judgment  creditor 

Danner  v.   Crew    (Ala.)    34   So.   822.     Under 

the  Nebraska  Code,  a  prior  unrecorded  deed 
or  mortgage  executed  in  good  faith  and  for 
valuable  consideration,  takes  priority  over  a 
conveyance  based  on  sheriff's  sale,  if  record- 
ed  before   evidence   of   the   execution   sale  is 


recorded,  otherwise  if  recorded  afterwards — 
Hendryx  v.  Evans    (Iowa)    94   N.  W.   853. 

87.  A  purchaser  at  an  execution  sale  under 
judgment  against  the  grantee  of  land  takes 
the  land  free  from  a  trust  therein  in  favor 
of  the  grantor,  of  which  he  had  no  notice — 
Home  Sav.  &  State  Bank  v.  Peoria  Agricul- 
tural &  Trotting  Soc.  (111.)  69  N.  E.  17. 

SS.  Hahn  v.  Willis  (Tex.  Civ.  App.)  73  S. 
W.   1084. 

89.  The  judgment  creditor  who  has  levied 
on  the  land  mortgaged  by  the  judgment 
debtor  cannot  maintain  a  writ  of  entry 
against  the  mortgagee  In  possession — Car- 
rasco   V.   Mason    (N.    H.)    54   Atl.    1101. 

90.  Steele  v.  Walter,  204  Pa.  257;  Bartlett 
V.  Gilcreast  (N.  H.)  55  Atl.  189.  Ky.  St.  §S 
1689.  1709  subsecs,  1,  3 — Wilson  v.  Flanders, 
24  Ky.  L.  R.  1302,  71  S.  W.  426. 

91.  Steele  v.   Walter,    204  Pa.    257. 

92.  Wilson  v.  Flanders,  24  Ky.  L.  R.  1302 
71   S.  W.   426. 

93.  Butler  V.  Brown  (111.)  69  N.  E.  44; 
Whitworth  v.  McKee  (Wash.)  72  Pac.  1046! 
Where  the  land  sold  was  worth  more  than 
the  value  of  the  debtor's  homestead  interest 
therein  and  the  sheriff  failed  to  set  off  such 
interest,  the  purchaser  after  conveyance  to 
him  under  the  sale  may  maintain  a  bill  to 
have  such  interest  set  off  or  to  pay  the 
debtor  the  value  thereof  in  cash — Krupp  v 
Brand,   200  III.  403. 

94.  Martin  v.  Abbott  (Neb.)   95  N.  W.  356. 

95.  Hanley  v.   Kubli    (Or.)    74    Pac.    224. 

96.  A  creditor  acquiring  a  sheriffs  deed  is 
a  good  faith  purchaser  for  value  and  entitled 
to  protection — Hendryx  v.  Evans  (Iowa)  94 
N.  W.  853.  The  application  of  the  bid  of  a 
judgment  creditor  for  land  sold  under  execu- 
tion to  costs  of  the  sale  under  execution 
will  not  render  such  a  creditor  a  bona  fide 
purchaser — Hicks  v.  Pogue  (Tex.  Civ.  App.) 
76  S.  W.  786.  A  purchaser  cannot  claim  land 
as  an  innocent  purchaser,  w^here  he  bought 
from  a  purchaser  at  an  execution  sale  know- 
ing of  fatal  irregularities  in  the  execution 
sale  and  that  it  had  been  set  aside  by  the 
court  for  that  reason — Day  v.  Johnson  (Tex. 
Civ.  App.)  72  S.  W.  426.  On  a  sale  under  ex- 
ecution on  a  voidable  judgment,  findings  that 
a  purcliaaer  from  one  who  bought  at  execu- 


1190 


EXEMPTIONS. 


§  1^ 


fide  purchaser  for  value  under  an  execution  on  a  justice's  judgment,  fair  on  its 
face,  will  not  be  disturbed,  though  the  judgment  be  invalid.^^  Purchasers  at  judi- 
cial sales  are  not  bona  fide  purchasers  as  against  a  claim  of  fraud  on  the  debtor 
in  the  sale,  the  doctrine  of  caveat  emptor  applying.'^  Parties  having  knowledge 
of  the  fact  may  not  take  advantage  of  a  sale  on  an  execution  for  the  full  amount 
of  the  judgment  where  the  judgment  was  fully  paid  except  a  small  amount  of 
costs.®® 

A  tenant  renting  land  before  the  execution  is  entitled  to  the  crops  on  maturity 
as  against  the  purchaser.^  The  purchaser  is  entitled  to  crops  planted  after  con- 
firmation.'^ 

Under  the  laws  of  Nebraska,  a  sheriff's  deed  is  of  itself  prima  facie  evidence 
of  the  validity  of  the  judgment  on  which  execution  sale  is  had,^  and  that  the  gran- 
tee holds  all  the  title  and  interest  in  the  land  that  was  held  by  the  judgment 
debtor  at  the  rendition  of  the  judgment  or  at  any  time  thereafter  up  to  the  sale.* 

The  mere  filing  of  a  supersedeas  bond  will  not  prevent  the  issuance  of  a  deed, 
the  code  requiring  the  filing  of  a  petition  in  error  to  make  the  bond  operative  as 
a  stay.®  Where  the  sale  is  made  under  a  special  execution  based  on  two  judgments 
rendered  in  the  same  action  to  foreclose  first  and  second  mortgages,  the  fact  that 
the  judgment  on  the  inferior  mortgage  is  afterwards  reversed  does  not  affect  the 
validity  of  the  sale  though  the  judgment  plaintiff  is  purchaser. « 

Whether  the  notice  of  a  motion  against  the  execution  defendant  for  writ  of 
possession  is  sufficient  may  not  be  raised  by  persons  coming  into  the  case  by  peti- 
tion claiming  interest  in  the  land  and  who  on  the  issues  on  their  petition  are 
defeated.^  Under  a  provision  allowing  revivor  of  judgment  for  purchaser's  benefit 
on  failure  to  recover  possession  for  irregularities  in  the  sale,  a  totally  void  execu- 
tion is  an  irregularity.'  An  agreement  of  an  execution  creditor  to  hold  a  pur- 
chaser harmless  covers  necessary  expenses  of  the  purchaser  in  defending  the  title 
where  the  creditor  fails  to  make  the  defense  after  request.' 

Equity  will  not  entertain  a  suit,  by  a  purchaser  of  realty  at  execution  sale 
who  is  not  in  possession  against  a  party  who  is  in  possession,  to  set  aside  a  prior 
conveyance  made  by  a  judgment  debtor  as  a  cloud  on  complainant's  title,  on  the 
ground  that  such  conveyance  was  in  fraud  of  creditors.^" 

§  16.  Bemedies  against  defective  levy  or  sale.  Setting  aside  sale. — A  sale 
to  plaintiff  in  an  action  may  be  set  aside  on  motion.^^  Where  there  is  no  irregu- 
larity or  defect  in  the  judgment  and  the  land  is  purchased  by  persons  not  parties 
to  the  action,  a  sale  will  be  set  aside  only  by  action  in  the  proper  court.^^  A  sale 
\s;il  not  be  set  aside  for  mere  technical  irregularities  in  the  proceedings  which 


tlon  sale  knew  that  the  judgment  debtor 
claimed  the  land  and  that  the  Judge  or- 
dering the  judgment  did  not  inquire  into 
the  terms  of  the  agreement  on  which  judg- 
ment was  ordered,  are  insufficient  to  show 
that  he  had  notice  of  facts  rendering  the 
judgment  voidable — Id. 

1)7.  Carpenter  v.  Anderson  (Tex.  Civ.  App.) 
77  S.  W.  291.  One  buying  property  which 
he  knows  to  be  worth  $2,500  for  $53  is  not 
an  innocent  holder  for  value,  so  as  to  sup- 
port the  conveyance,  where  the  Judgment  Is 
invalid — Id. 

OS.     Barstow  v.  Beckett,  122  Fed.  140. 

99.     Baird  v.  Given.  170  Mo.  302. 

1.  Johnson  v.  Cook,  96  Mo.  App.  442. 
Where  a  lease  is  made  after  the  date  of  the 
judgment,  a  purchaser  acquires  only  the  in- 
terest of  the  owner  In  the  growing  crops — 
Garrison  v.   Parker,  117   Ga.    537. 


2.  Jaques  v.  Dawes    (Neb.)    92  N.  W.   570. 

3.  Code  Civ.  Proc.  Neb.  §  500 — Everson  v. 
State   (Neb.)   92  N.  W.  137. 

4.  Everson   v.   State    (Neb.)    92    N.   "W.    137. 

5.  Rev.  St.  §  590.  p.  498 — Hendryx  v.  Ev- 
ans   (Iowa)    94   N.   W.    853. 

6.  Falk  V.  Ferd.  Heim  Brew.  Co.  (Kan.) 
72    Pac.    531. 

7.  Read  v.  Cochran,  24  Ky.  L.  R.  1412,  71 
S.    W.    487. 

8.  Code  Civ.  Proc.  Cal.  §  708 — Mergulre  v. 
ODonnell,  139  Cal.  6,  72  Pac.  337.  A  failure 
to  recover  possession  is  not  complete  until 
an  adverse  determination  of  the  matter  in 
the  judgment  debtor's  suit  to  quiet  title — Id. 

9.  Cassidy  v.  Taylor  Brew.  Co.,  79  App. 
Div.    (N.   Y.)    242.      . 

to.     Ropes,  v.   Jenerson    (Fla.)    34    So.    955. 
11,12.     McCarthy  v.  Speed  (S.  D.)   94  N.  W. 
411. 


§  16 


SETTING  ASIDE;    INJUNCTION. 


1191 


could  not  have  been  prejudicial."  Want  of  knowledge  of  confirmation  will  not 
authorize  setting  aside  sales  in  states  where  notice  of  motion  for  confirmation  is 
not  required/*  nor  may  party  avail  himself  of  disobedience  of  orders  by  agent 
where  he  retains  the  fruits.^^  An  executor  in  his  individual  capacity  may  move 
to  set  aside  a  sale  of  his  property  on  an  execution  on  a  judgment  against  him  as 
executor.^"  Where  the  execution  is  set  aside  for  invalidity  of  the  judgment  which 
was  fair  on  its  face,  the  vendee  is  entitled  to  reimbursement.^^  The  evidence  on 
application  to  set  aside  a  levy  on  land  as  the  debtor's  homestead  must  show  that 
the  debtor  was  the  head  of  a  family  or  entitled  to  the  homestead,  or  that  the 
land  levied  on  had  been  selected  as  a  homestead."  A  finding  that  a  judgment 
was  paid  before  execution  will  not  be  disturbed  on  appeal  where  the  evidence  is 
conflicting." 

Inadequacy  of  price,  though  gross,  will  not  be  sufficient  to  set  aside  a  sale, 
unless  coupled  with  other  circumstances  sufficient  to  give  rise  to  a  presumption 
of  fraud.^** 

Injunction. — An  injunction  will  not  lie  to  restrain  a  sale,  where  there  is  an 
adequate  legal  remedy  to  protect  the  title,^^  nor  for  the  purpose  of  reviewing  the 
action  of  the  lower  court.-^  The  enforcement  of  a  judgment  fully  satisfied  may 
be  restrained  by  injunction."  An  injunction  will  not  lie  to  enjoin  an  execution 
issued  on  a  void  judgment.**  The  privilege  of  defendants  to  have  suit  to  enjoin 
execution  brought  in  the  county  where  judgment  was  rendered  may  be  waived  by 
proceeding  to  trial  without  objection  or  plea  to  jurisdiction.^^  An  injunction 
restraining  sale  under  execution  in  favor  of  a  county  was  properly  commenced, 
not  in  that  county,  but  in  the  county  in  which  the  sheriff  having  charge  of  the 
sale  and  on  whom  the  writ  was  general  had  his  domicile.*^     A  county  court  of  one 


IS 

778. 

14,  15 
320. 

10. 
411. 

17. 


Cochran   v.   Cochran    (Neb.)    95   N.  W. 

Brand  v.  Baker,  42  Or.  426,  71  Pac. 

McCarthy   v.    Speed    (S.   D.)    94   N.   W. 

Carpenter  v.  Anderson  (Tex.  Civ.  App.) 
77   S.  W.   291. 

18.  Cope  V.  Snider  (Mo.  App.)  74  S.  W.  10. 

19.  Hamilton  v.  Perry,  25  Ky.  L.  R.  647, 
76  S.  W.  52. 

20.  Palmour  v.  Roper  (Ga.)  45  S.  B.  790; 
Koch  V.  West,  118  Iowa,  468;  Martin  v.  Bry- 
son  (Tex.  Civ.  App.)  71  S.  W.  615.  A  sale 
will  not  be  set  aside  for  mere  inadequacy 
on  account  of  the  failure  of  a  lienholder  to 
bid  where  such  lienholder  left  the  matter  of 
bidding  to  a  representative  who  forgot  about 
the  sale  because  of  unusual  business  duties — 
Westmoreland  Guarantee  Bldg.  &  Loan  Ass'n 
V.  Nesbit,  21  Pa.  Super.  Ct.  150.  An  execu- 
tion sale  is  properly  set  aside  where  the 
purchaser  was  appointed  an  appraiser  and 
valued  the  property  worth  1200  at  $20  and 
purchased  it  for  $14 — Hamilton  v.  Perry,  25 
Ky.  L.  R.  547,  76  S.  W.  52.  A  sale  will  be 
set  aside  where  land  was  sold  for  a  grossly 
inadequate  price,  and  defendant  was  not 
called  to  point  out  the  property  levied  upon, 
the  writ  was  made  returnable  in  90  days  in- 
stead of  60  days  as  required  by  law  and  sale 
.ook  place  after  60  days  and  the  description 
of  the  land  sold  was  doubtful — Day  v.  John- 
son (Tex.  Civ.  App.)  72  S.  W.  426.  Sale  for 
$140  of  an  incumbered  title  worth  $2,000  and 
equity  of  redemption  worth  $4,000,  the  su- 
perior liens  amounting  to  $5,330  will  be  set 


aside    for    inadequacy — Simmons    v.    Sharpe 
(Ala.)    35   So.    415. 

21.  Hahn  v.  Willis  (Tex.  Civ.  App.)  73  S. 
W.  1084.  A  judgment  debtor  claiming  that 
certain  of  the  costs  taxed  as  part  of  the 
judgment  was  illegal,  has  an  adequate  rem- 
edy at  law  by  motion  to  re-tax  the  cost  and 
by  a  stay  of  execution  pending  the  motion, 
and  hence  may  not  maintain  a  suit  to  re- 
strain the  levy  of  the  execution — Ward  v. 
Rees  (Wyo.)  72  Pac.  581.  Under  the  laws  of 
Georgia,  the  owner  of  abutting  property  on 
which  an  execution  has  been  levied  for  a 
street  improvement  assessment  has  a  com- 
plete statutory  remedy  by  affidavit  of  the 
illegality  and  is  not  entitled  to  an  injunc- 
tion to  restrain  sale  by  execution — Rice  v. 
Macon,  117  Ga.  401. 

22.  Where  a  justice  has  jurisdiction  to 
determine  a  plea  of  res  adjudicata  involving 
an  amount  insufficient  to  authorize  an  ap- 
peal, he  will  not  be  restrained  from  Issuing 
an  execution  on  the  judgment  rendered  on 
determination  of  the  plea — St.  Louis,  etc., 
R.  Co.  V.  Coca  Cola  Co.  (Tex.  Civ.  App.)  75 
S.   W.   563. 

23.  A  petition  averring  payment  and  sat- 
isfaction and  praying  that  an  injunction  be 
made  perpetual  and  for  general  relief  jus- 
tifies a  decree  enjoining  issuance  of  execu- 
tion on  the  judgment — Deleshaw  v.  Edelen 
(Tex.   Civ.   App.)    72  S.  W.   413. 

24.  Hewlett  V.  Turner,  93  Mo.  App.  20. 

25  Foust  V.  Warren  (Tex.  Civ.  App.)  72 
S.   W.    404. 

26.  Little  V.  Griffin  (Tex.  Civ.  App.)  77  S. 
W.   635. 


1192 


EXECUTIONS— EXEMPTIONS. 


§  17 


county  may  not  enjoin  execution  of  a  judgment  of  a  county  court  of  another  county.-^ 
A  pro^^sion  requiring  -vnrits  of  injunction  to  restrain  execution  to  be  made  return- 
able to  and  tried  in  the  court  rendering  the  judgment  does  not  apply  to  judg- 
ments of  justice  courts  as  such  courts  have  no  authority  to  issue  writs  of  injunc- 
tion.^^ When  an  action  is  brought  by  one  judgment  debtor  to  restrain  the  sale 
of  land  owned  by  him  on  execution,  on  the  ground  that  the  land  is  not  liable  to 
execution,  his  co-judgment  debtors  are  not  necessary  parties  to  the  action.^^  Com- 
plainant must  state  facts  either  on  personal  knowledge  or  on  information  reason- 
ably sufficient  on  M'hich  to  base  his  relief.-'"'  An  execution  debtor  is  not  entitled 
to  equitable  relief  where  he  makes  no  complaint  that  the  judgment  is  unjust,  nor 
that  the  debt  on  which  it  was  founded  was  not  a  valid  demand  against  him.^' 
The  suit  should  be  dismissed  where  there  was  no  request  to  amend  a  complaint 
vulnerable  to  a  general  demurrer.^^  Where  to  obtain  an  equitable  set-off,  the  judg- 
ment debtor  sought  to  enjoin  the  enforcement  of  a  judgment  against  it  by  a  mem- 
ber of  a  firm  against  which  he  had  suits  pending  and  which  subsequently  resulted 
in  favor  of  the  firm,  he  could,  on  petition  for  permanent  injunction,  prove  that  he 
expected  to  move  for  a  new  trial.^^  On  review,  it  will  be  presumed  that  sufficient 
facts  were  found  to  warrant  making  the  order.'*  The  defendant's  death  leaving 
an  estate  to  be  administered  as  insolvent  dissolves  the  attachment  under  the  laws 
of  New  Hampshire  and  justifies  the  court  in  overruling  an  exception  to  a  refusal 
to  modify  an  injunction  staying  execution  against  the  estate  so  as  to  admit  of 
the  sheriff's  further  prosecution  of  his  action.*"^ 

§  17.  Restitution  on  reversal  of  judgment. — On  reversal  of  judgment,  resti- 
tution of  property  sold  on  execution  may  be  ordered,^'  and  where  the  debtor  has 
died  in  the  meantime,  it  should  be  made  to  his  personal  representative.^^  Under 
the  California  code,  the  measure  of  damages  in  an  action  to  recover  property  sold 
under  an  execution  on  a  judgment  subsequently  reversed  is  limited  to  the  proceeds 
of  an  execution  sale  less  the  expense  thereof.^'  Under  the  same  provision,  attor- 
ney fees  may  not  be  recovered.^' 


EXEMPTIONS.*© 


§  1. 

§  2. 
§   3. 
§  4. 
tlon. 
§  5. 


The   Right   to   Exemptions    Generally. 
Persons  \Vho   may  Claim. 
Goods  and  Chattels  Exempted. 
Debts  Inferior  or  Superior  to  Excmp- 

LiOSB  of  Exemption  Rights. 


§  6.  Selling  or  Transferring  Exempt  Prop- 
erty. 

§  7.     Ho-*T   Claimed  and  Enforced. 

§  8.  Recovery  for  Selling  Exempt  Prop- 
erty or  Evading  Exemption  I.a^s. 


§  1.     The  right  to  exemptions  generally. — Exemption  statutes  are  to  be  lib- 
erally construed  to  effect  their  intent  and  purpose.*^     They  have  no  extra  terri- 


27.  Aultman  v.  Higbee  (Tex.  Civ.  App.) 
74  S.  W.  955. 

28.  Foust  V.  "Warren  (Tex.  Civ.  App.)  72 
S.  W.  404;  Osborne  v.  Gatewood  (Tex.  Civ. 
App.)    74  S.  W.   72. 

29.  McGin  V.  Sutton   (Kan.)   72  Pac.  853. 

30.  Magruder  v.  Schley,  18  App.  D.  C. 
288 

31.  KendaU  v.  Smith  (Kan.)  72  Pac.  543. 
An  execution  will  not  be  enjoined  on  the 
ground  that  the  judgment  debtor  was  not 
served  with  summons,  where  he  fails  to  al- 
lege or  prove  an  equitable  defense — Foust  v. 
Warren   (Tex.   Civ.  App.)    72   S.  W.   404. 

32.  Noerdlinger  v.  Huff,  31  Wash.  360,  72 
Pac.   73. 

S?..     Harris  v.  Gano,  117  Ga.  934. 

31,  35.     Fairfield  v.  Day  (N.  H.)  55  Atl.  219. 

30.     Where  a  judgment  is  subsequently  re- 


versed and  the  property  ordered  to  be  re- 
conveyed,  the  debtor  is  entitled  to  the  rents 
and  profits  which  were  or  might  have  been 
received  by  the  purchaser  during  his  occu- 
pation less  the  amount  paid  for  repairs,  in- 
surance and  taxes  and  the  amount  paid  by 
the  purchaser  in  Interest — Cavenaugh  v. 
Wilson,  24  Ky.  L.  R.  1507,  71  S.  W.  870.  Tt 
is  the  duty  of  the  judgment  creditor  to  re- 
store the  property  to  the  judgment  debtor 
after  the  reversal  of  the  judgment — Nelson 
V.   City  of  Beatrice    (Neb.)    9fi  N.   W.   288. 

37.  Black  V.  Vermont  Marble  Co..  137  Cal. 
683,    70   Pac.    776. 

38.  Code  Civ.  Proc.  Cal.  §  957 — Dowdell  v. 
Carpy,    137   Cal.    333,    70   Pac.    167. 

39.  Dowdell    V.    Carpy,     137    Cal.     333      70 
Pac.   167. 

40.  See,    also.    Taxes   for    exemption    fron. 


§  3 


GOODS  EXEMPTED. 


1193 


tonal  effect  and  operate  only  against  executions  issued  in  the  state  of  claimant's  res- 
idence/2  being  governed  in  bankruptcy  proceedings  by  the  law  of  the  domicile.*' 
The  state  may  regulate  and  change  exemptions  at  will.** 

§  2.  Persons  who  may  claim  exemptions. — Exemption  laws  are  frequently  con- 
fined to  certain  classes  of  persons,  such  as  laborers*^  or  heads  of  families.*® 

§  3.  Goods  and  other  chattel  properties  exempted. — The  laws"  of  some  of  the 
states  exempt  the  proceeds  of  insurance  policies  and  beneficiary  certificates,*^  pen- 
sion money,*^  wages  or  earnings,*^  tools  or  implements  of  trade,^^  live  stock,"  and 


taxation;  Homesteads  for  exemption  of  home- 
steads; Estates  of  Decedents  for  widow's  al- 
lowance. 

41.  Cook  V.  Allee  (Iowa)  93  N.  W.  93; 
Caldwell  v.   Renfro    (Mo.  App.)   73  S.  W.   340. 

42.  Sexton  v.  Phoenix  Ins.  Co.,  132  N.  C. 
1;  Pennsylvania  R.  Co.  v.  Rogers,  52  W.  Va. 
450;  Dinkins  v  Crunden-Martln  Woodenware 
Co.    (Mo.   App.)    73  S.  "W.    246. 

43.  In  re  Le  Vay,  125  Fed.  990;  Pulsifer  v. 
Hussey,  97  Me.  434;  In  re  Boyd,  120  Fed.  999; 
McKenney  v.  Cheney  (Ga.)  45  S.  E.  433;  In 
re  Staunton,  117  Fed.  507.  Decisions  of  the 
state  court  declaring  certain  specific  proper- 
ty exempt  will  be  followed — In  re  Stone,  116 
Fed.   35;  Page  v.  Edmunds,  187  U.  S.  596. 

44.  Kittel  V.  Domeyer,  175  N.  Y.  205.  Laws 
Increasing  their  amount  are  not  objectior>- 
able  as  impairing  the  obligation  of  contracts 
— Folsom  V.  Asper,  25  Utah,  299.  71  Pac.  315. 

45.  One  engaged  at  manual  labor  is  not 
to  be  deprived  of  his  exemption  as  a  la- 
borer by  the  fact  that  he  has  control  of  oth- 
er employes  engaged  in  similar  work — Stot- 
hart  V.  Melton,  117  Ga.  460.  A  person  having 
the  care  of  a  stallion  kept  for  breeding  pur- 
poses is  a  laborer  (Code  of  Iowa,  §  4008) — 
Krebs  v.   Nicholson,   118  Iowa,  134. 

46.  A  person  bound  to  support  a  child  of 
a  former  marriage  is  the  head  of  a  family 
within  a  statute  exempting  wages  of  such 
persons — Maag  v.  Williams,  92  Mo.  App.  674. 
A  partner  though  the  head  of  a  family  can- 
not claim  an  exemption  in  the  partnership 
property  levied  on  by  firm  creditors — Lynch 
V.  Englehardt,  etc..  Mercantile  Co.  (Neb.)  96 
N.  W.  524.  A  married  woman  claiming  the 
benefit  of  the  South  Dakota  exemption  laws 
must  show  that  she  is  head  of  a  family — 
Blount  V.  Medbery  (S.  D.)  94  N.  W.  428. 
In  some  states  the  wife  may  claim  the  ex- 
emption where  the  husband  neglects  or  re- 
fuses to  make  the  claim  (Comp.  Laws  S.  D. 
§  5133) — Thompson  v.  Donahoe  (S.  D.)  92 
N.  W.  27;  Baura  v.  Turner,  25  Ky.  L.  R.  600, 
76  S.  W.  129. 

47.  Pulsifer  v.  Hussey,  97  Me.  434.  The 
provision  of  the  bankruptcy  act  that  an  in- 
sured shall  pay  to  the  trustee  the  cash  sur- 
render value  of  a  policy  payable  to  himself, 
his  estate,  or  per.sonal  representatives  and 
thereafter  may  continue  to  hold  such  policy 
free  from  claims  of  creditors,  does  not  in- 
clude policies  payable  to  the  wife  or  kindred 
of  insured,  but  only  applies  to  policies  pay- 
able to  insured  or  his  personal  representa- 
tives— Id.  Moneys  received  from  a  fraternal 
insurance  society  are  exempt  under  the  laws 
of  New  York  (Laws  N.  Y.  1901,  c.  397) — El- 
lenson  v.  Schwartz,  38  Misc.  (N.  Y.)  669. 
Under  the  law  that  life  insurance  premiums 
In   excess    of    $500    annually    renders    the    In 


signed  by  the  wife  and  her  husband  before 
his  death  to  secure  a  debt  of  the  husband 
will  not  be  considered  as  part  of  $500  or 
charged  against  the  wife  in  determining  the 
amount  of  life  insurance  to  which  she  is 
entitled — Kittel  v.  Domeyer,  175  N.  Y.  205. 
Under  such  laws,  the  wife  is  not  deprived 
of  any  portion  of  the  insurance  moneys, 
until  it  is  determined  that  the  other  as- 
sets of  deceased  will  not  satisfy  the  cred- 
itors' claims  and  until  such  claims  are  dis- 
charged, they  are  a  lien  on  the  insurance 
purchased  In  excess  of  the  premium  al- 
lowed by  law — Id.  A  provision  exempting 
the  proceeds  of  insurance  policies  for  prior 
debts  of  beneficiary  exempts  property  Dur- 
chased  therewith  (Code  Iowa,  §  1805) — (iook 
\-.  Allee  (Iowa)  93  N.  W.  93.  A  mutual  aid 
•society  having  no  ritual  composed  of  mem- 
bers of  a  secret  society  Is  not  within  an 
ict  exempting  benefits  received  from  secret 
societies  having  a  lodge  system  with  a 
ritualistic  form  of  work — Miles  v.  Odd  Fel- 
lows Mut.  Aid  Ass'n   (Conn.)  55  Atl.  607. 

48.  Under  laws  exempting  pension  mon- 
eys and  property  purchased  therewith  prop- 
erty of  less  value  than  the  statutory  ex- 
emption on  which  a  mortgage  has  been  dis- 
charged with  pension  money  is  exempt  (Code 
Civ.  Proc.  Neb.  §  531b) — Dargan  v.  Williams 
(Neb.)  91  N.  W.  862.  The  pension  money  ex- 
emption extends  to  property  taken  in  ex- 
change for  property  discharged  from  a  lien 
with  pension  money  and  the  increase  of  such/ 
property — Id.  • 

49.  A  provision  that  one-half  the  earn- 
ings of  a  debtor  shall  be  exempt  and  that 
the  exemption  sum  in  all  cases  shall  not  ex- 
ceed a  certain  sum,  means  that  the  exemp- 
tion shall  not  be  reduced  to  a  less  amount 
(Rev.  St.  1899,  p.  1019,  §  3951) — Lafferty  v. 
Sistalla  (Wyo.)  72  Pac.  192.  Where  money 
due  the  la^borer  is  exempt  it  cannot  be  reach- 
ed by  garnishment — Hill  v.  Arnold,  116  Ga. 
45.  The  Missouri  statute  exempting  apparel 
and  implements  of  unmarried  persons  does 
not  cover  salary  or  wages  of  such  persons 
(Rev.  St.  Mo.  1899.  §  3158) — Dinkens  v.  Crun- 
den-Martin  Woodenware  Co.,  91  Mo.  App. 
209.  The  laws  of  Montana  allow  a  placer 
miner  the  gold  dust  taken  from  claim  with- 
in 30  days  next  preceding  a  levy  where  he 
is  a  poor  man  at  the  hoad  of  a  family  and 
the  debt  is  not  for  necessaries  (Code  Civ. 
Proc.  §  1222.  subd.  7) — Dayton  v.  Ewart 
(Mont.)    72    Pac.    420. 

50.  A  laborer  having  the  care  of  a  stal- 
lion kept  for  breeding  purposes  may  claim 
a  road  cart  and  harness  used  as  a  means  of 
conveyance  to  different  standing  stations 
(Code  Iowa,  S  4008) — Krebs  v.  Nicholson,  118 


surance  purchased  with  the  excess   liable  to    Iowa,  134. 

insured's    debts,    premiums    on     policies    as-  |      .'51.     An  exemption  of  a  certain  number  of 


1194 


EXEMPTIONS. 


§4 


in  some  cases  property  of  ^  specified  value  to  be  selected  by  the  debtor."  In  such 
ease  the  debtor  may  claim  as  exempt  a  debt/^  a  judgment/*  a  seat  in  a  stock 
exchange,"*"  property  not  paid  for  by  him  where  the  seller  had  no  lien  thereon,^' 
the  proceeds  of  property  which  had  been  assigned  by  him  for  the  benefit  of  his 
creditors  in  the  hands  of  his  trustee,"^  a  liquor  license.^^  In  Nebraska,  one  against 
whom  property  is  partitioned  in  proceedings  by  a  creditor  may  not  claim  an  ex- 
emption in  the  proceeds.'* 

The  proceeds  of  the  sale  of  exempt  property/"  and  homesteads,  are  exempt,'^ 
as  is  a  judgment  recovered  in  protecting  an  exemption."'' 

§  4.  Debts  and  liabilities  inferior  or  superior  to  right  of  exemption. — In 
some  states,  there  may  be  no  exemption  in  property  against  a  creditor  for  the 
purchase  price,"^  or  for  necessaries.^*  Court  costs  cannot  be  enforced  against  the 
bankrupt's  exemptions,^'^  nor  can  a  court  of  bankruptcy  subrogate  the  trustee  to 
the  right  of  a  creditor  who  had  acquired  a  lien  on  the  bankrupt's  exempt  prop- 
erty.''    Exemptions  cannot  be  claimed  against  penalties  for  violation  of  laws.'^ 

§  5.  Loss  of  exemption  rights. — The  exemption  is  lost  by  a  fraudulent  dis- 
position of  the  debtor's  property.'^     The  right  is  not  lost  by  failure  to  make  im- 


hogs  to  the  head  of  a  family.  Is  for  the  pur- 
pose of  furnishing  food  and  will  not  In- 
clude a  hog  chiefly  valuable  for  exhibition 
use  on  account  of  his  large  size  (Rev.  St. 
Mo.  1899,  §  3159) — Wabash  R.  Co.  v.  Bow- 
ring   (Mo.  App.)   77  S.  W.  106. 

."52.  The  $300  exemption  allowed  the  head 
of  a  family  In  Missouri  is  In  addition  to  the 
household  and  other  specifically  exempt 
property  (Rev.  St.  Mo.  1899,  §  3162)— RoUa 
State  Bank  v.  Borgfeld,  93  Mo.  App.  62. 

53.  Rolla  State  Bank  v.  Borgfeld,  93  Mo. 
App.  62;  Green  v.   Baxter,  91  Mo.  App.  633. 

.54.  Bowen  v.  Holden,  95  Mo.  App.  1.  The 
assignor  of  a  judgment  having  a  residuary 
interest  therein  may  claim  an  exemption  in 
such  interest  though  the  assignment  would 
have  been  constructively  fraudulent  aa  to 
creditors— Green  v.   Baxter,   91   Mo.  App.   633. 

55.  Pennsylvania  court  decisions  so  hold- 
ing followed  (Page  v.  Edmonds,  187  U.  S. 
596)  but  see  as  to  a  working  tool  under 
Code  Civ.  Proc.  N.  T.  §  1391— Leggett  v.  Wal- 
ler,  39  Misc.    (N.   Y.)    40S. 

5(5.     In   re   Butler,   120   Fed.   100. 

57.  In  re  Talbott,  116  Fed.  417.  But  ex- 
emptions cannot  be  claimed  out  of  property 
recovered  by  the  trustee  which  had  been 
transferred  as  a  preference — In  re  Long,  116 
Fed.  113.  But  where  he  had  transferred  a 
judgment  to  a  trustee  for  certain  creditors, 
and  the  trustee  did  not  assume  ownership 
and  it  was  paid  to  the  trustee  in  bankrupt- 
cy the  bankrupt  may  claim  exemption  there- 
in—Bashinski  V.  Talbott  (C.  C.  A.)  119  Fed. 
337. 

In  re  Celewlne.  125  Fed.  840. 

First   Nat.    Bank   v.    Snyder    (Neb.)    96 

2S5. 

Brand  v.  Clements.   116  Ga.   392. 

Lee   V.   Hughes    (Ky.)    77    S.    W.    386. 

Long  V.   Collins    (S.   D.)    94   N.   W.    700. 

A  judgm.ent  for  the  value  of  exempt  prop- 
erty seized  and  sold  on  execution  is  exempt 
—Treat    v.    Wilson,    65    Kan.    729,    70    Pac. 

893. 

63.  Cannon  v.  Dexter  Broom  &  Mattress 
Co  (C  C.  A.)  120  Fed.  657.  Under  the  laws 
subjecting  personalty  to  execution  for  the 
purchase    price,    the    right    of    a    creditor    to 


58. 
59. 
N.  W 
60, 
61. 
62. 


seize  such  property  is  not  lost  by  the  fact 
tliat  the  purchaser  gave  notes  providing  that 
until  payment  was  made  title  should  remain 
ill  tlie  seller  who  could  take  possession  on 
default  without  legal  process  as  the  right 
given  by  the  note  was  cumulative  and  not 
exclusive  of  the  statutory  right  (Rev.  St. 
Mo.  1899,  §  3170) — De  Loach  Mill  Mfg.  Co.  v. 
Lathan  (Mo.  App.)  72  S.  W.  1080.  Where  a 
bankrupt  invoked  the  benefit  of  the  bank- 
rupt act  and  prevented  the  seller  of  exempt 
property  from  obtaining  judgment  and  levy- 
ing execution  thereon  as  required  by  a  law 
declaring  that  none  of  the  exemptions  pre- 
scribed should  be  allowed  against  the  exe- 
cution for  the  purchase  money  of  the  prop- 
erty, he  could  not  object  that  the  court  of 
(bankruptcy  had  no  jurisdiction  to  order  the 
property  sold  and  the  proceeds  applied  to  the 
unpaid  purchase  price  on  the  ground  that 
no  judgment  had  been  recovered  or  execu- 
lion  levied — In  re  Boyd,  120  Fed.  999. 

64.  What  are  necessaries  within  the  ex- 
emption statutes  making  wages  liable  for 
necessaries,  is  a  question  of  fact  dependent 
on  circumstances  of  the  case — Fisher  v. 
Shea,  97  Me.  372.  Legal  services  rendered  In 
behalf  of  defendant  in  an  action  for  assault 
have  been  held  necessaries — Id.  The  fact 
that  defendant  was  not  arrested  in  the  ac- 
tion, but  was  liable  to  arrest  on  execution 
after  judgment  against  him.  may  be  consid- 
ered in  determining  the  necessity  of  attor- 
ney's services — Id. 

65.  In  re  Hlnes,  117  Fed.  790;  In  re  L« 
Vay,  125  Fed.  990. 

66.  In  re  Rosenberg,  116  Fed.  402. 

67.  Under  the  gambling  statute  of  In- 
Hana,  the  state's  right  to  recover  depends 
•  n  the  statute  solely  and  ond  winning  at 
;ambllng  is  not  entitled  to  the  benefit  of  the 
exemption  law  as  against  an  execution  issued 
on  a  judgment  against  him  In  its  favor — 
-tate  V.  Morgan    (Ind.)    67  N.   E.   186. 

68.  Hoodlnpyle  v.  Bagby.  104  111.  App.  620; 
!n  re  Duffy,  118  Fed.  926;  In  re  Taylor,  114 
[•'ed.  607;  In  re  Evans.  116  Fed.  909.  As 
-vliere  he  carried  on  a  business  in  the  name 
if  another  as  agent,  and  nearly  all  the  In- 
debtedness  was   created    within    five    months 


§  7 


HOW  CLAIMED. 


1195 


mediate  claim/^  nor  by  mere  promises  before  right  to  claim  becomes  available/** 
nor  by  a  husband's  abandonment  of  his  family,  they  may  still  be  claimed  by  the 
wife/^  The  right  of  the  head  of  a  family  to  an  exemption  attaches  at  the  time 
of  the  levy  and  is  not  lost  by  a  later  removal  from  the  state/^  An  agreement  of 
partners  that  their  business  be  continued  by  another,  the  proceeds  to  be  devoted 
to  the  payment  of  debts  waives  the  exemptions  of  the  members  of  the  firm.''^  An 
instrument  waiving  exemptions  is  binding  on  an  assignee.'^* 

§  6.  Selling  or  transferring  exempt  property. — The  owmership  of  exempt 
property  is  absolute/^  and  a  sale  by  a  debtor  to  his  creditor  is  not  in  fraud  of 
other  creditorsJ"  In  some  states,  a  mortgage  of  exempt  property  requires  joint 
execution  by  the  husband  and  wife.'^^ 

§  7.  How  the  right  is  claimed  and  enforced. — The  exemption  right  is  per- 
sonal and  may  not  be  claimed  by  another.'^  The  claim  may  be  made  at  any  time 
before  the  actual  appropriation  of  the  property  to  the  payment  of  the  debtJ'  The 
manner  of  claiming  exemptions  is  regulated  by  the  statutes  of  the  various  states,®* 
and  in  bankruptcy  proceedings  by  the  bankruptcy  act.*^ 


preceding:  his  bankruptcy  and  the  better 
portion  of  the  stock  was  sold  off  at  auction, 
the  balance  being  worth  less  than  the  ex- 
emption— In  re  Williamson,  114  Fed.  190. 
Sufficiency  of  evidence  to  show  that  the 
bankrupt  was  not  chargeable  with  fraud  In 
"Concealing  property  from  creditors,  such  be- 
ing the  ground  of  forfeiture  of  exemptions 
under  Georgia  Code.  §  2830 — In  re  Stephens, 
114  Fed.  192;  In  re  Boorstin,  114  Fed.  696; 
In  re  Thompson,  115  Fed.  924.  Evidence  held 
insufficient  to  show  a  fraudulent  disposition 
of  property  by  a  bankrupt  so  as  to  effect  a 
forfeiture  of  his  exemptions  under  the  state 
law — In  re  Duffy,  118  Fed.  926.  There  Is  a 
showing  of  fraud  preventing  one  from  claim- 
ing exemptions  where  he  makes  a  showing 
as  to  his  property  as  largely  in  excess  of 
liabilities  and  seven  months  later  makes  an- 
other showing  indicating  a  shrinkage  of 
about  nine-tenths  and  there  Is  no  explana- 
tion of  the  cause  of  depreciation — Blount  v. 
Medbery  (S.  D.)  94  N.  W.  428.  Where  the 
sale  is  for  a  fair  consideration  and  with  an 
honest  motive  the  right  will  not  be  lost 
though  the  effect  Is  to  leave  nothing  for 
creditors— In  re  Duffy,  118  Fed.  926.  A  sale 
of  property  held  fraudulent  does  not  restore 
title  to  the  vendor  beneficially  so  that  he 
may  claim  an  exemption  therein.  The  ven- 
dee may  claim  any  right  there  Is  to  exemp- 
tion— Williamson  v.  Wilkinson  (Miss.)  33  So. 
282. 

69.  Mere  failure  of  debtor  to  assert  right 
in  attachment  suit  by  motion  or  application 
to  discharge  the  attachment  or  for  a  re- 
lease of  the  property  on  the  ground  that  it 
Is  exempt  is  not  a  waiver — Rempe  v.  Ravens 
(Ohio)  67  N.  E.  282.  Demand  may  be  made 
at  any  time  before  actual  appropriation  to 
the  creditor's  claim — Id. 

70.  A  prospective  exemption  In  the  avails 
of  an  insurance  policy  Is  not  lost  by  mere 
statement  of  Insured  that  he  Intends  their 
use  for  the  payment  of  his  debts  (Code  Iowa, 
5    3f,lP0 — O'Melia   v.   Hoffmeyer    (Iowa)    93   N. 

W.  497. 

71.  Baum  v.   Turner,   25   Ky.   L.  R.   600,   76 

S.   W.  129. 

72.  Caldwell   v.    Renfro    (Mo.   App.)    73    S. 

W.  340. 

73.  Levy  v.  Rosell   (Miss.)   34  So.  321. 


74.  Barhyte  v.  New  Hampshire  Real  Es- 
tate Co.   (Kan.)  71  Pac.  837. 

75.  Creditors  may  not  question  its  trans- 
fer— Skinner   v.    Jennings    (Ala.)    34    So.    622. 

76.  Heisch  v.  Bell   (N.  M.)   70  Pac.  572. 

77.  Searle  v.  Gregg  (Kan.)  72  Pac.  544. 
Idaho  Act  Feb.  16,  1899— Kindall  v.  Lincoln 
Hardware  &  Imp.  Co.  (Idaho)  70  Pac.  1056; 
Alexander  v.  Logan,  65  Kan.  505,  70  Pac.  339. 
In  Wisconsin  the  mortgage  Is  invalidated  by 
want  of  witness  to  wife's  signature — Lashua 
V.  Myhre  (Wis.)  93  N.  W.  811.  Laws  requir- 
ing joint  consent  of  husband  and  wife  to 
mortgage  of  exempt  property  require  joint 
signature  and  not  joint  acknowledgment 
(Code  Iowa,  §  2906) — Brown  v.  Koenig  (Mo. 
App.)   74  S.  W.  407. 

78.  Assignee,  (Wabash  R.  Co.  v.  Bowring 
FMo.  App.]  77  S.  W.  106)  garnishee— Din- 
kins  v.  Crunden-Martin  Woodenware  Co. 
(Mo.  App.)    73   S.  W.   246. 

79.  Rempe  v.  Ravens  (Ohio)  67  N.  B.  282; 
Messenger  v.  Murphy  (Wash.)  74  Pac.  480. 
The  claim  may  be  made  while  the  fund 
realized  on  execution  is  in  the  hands  of  the 
court  when  the  levying  officer  did  not  notify 
the  debtor  of  hia  exemption — RoUa  State 
Bank  v.  Borgfeld,  93  Mo.  App.  62.  The  ex- 
emption laws  of  North  Carolina  do  not  pre- 
vent an  action  to  charge  the  separate  es- 
tate of  a  married  woman  though  her  per- 
sonal estate  does  not  exceed  the  statutory 
amount  (Code  N.  C.  §  443) — Harvey  v.  John- 
son  (N.  C.)    45  S.  E.  644. 

80.  Under  the  laws  of  New  Jersey  wages 
can  be  reached  under  execution  only  under 
an  order  of  court  determining  the  amount  to 
be  paid  from  time  to  time.  Acts  N.  J.  1901, 
p.  372,  may  not  be  evaded  by  attachment 
against  non-absconding  debtor — Morgarum 
V.  Moon,  63  N.  J.  Eq.  586.  The  debtor  need 
not  cite  the  law  under  which  he  makes  his 
claim — Rolla  State  Bank  v.  Borgfeld,  93  Mo. 
App.  62.  A  second  affidavit  of  exemption  is 
not  required  on  a  second  garnishment — Laf- 
ferty  v.  Slstalla  (Vt'yo.)  72  Pac.  192.  Under 
acts  exempting  earnings  for  personal  serv- 
ices rendered  within  60  days  next  before 
commencem.ent  of  supplementary  proceed- 
ings and  necessary  for  support  the  debtor 
must  show  that  the  money  was  the  result  of 
his  personal  services — In  re  Wyman.  76  App. 


1196 


EXEMPTIONS— EXHIBITIONS. 


§  s 


§  8.  Recovery  for  selling  exempt  property  &r  evading  exemption  laws. — A  wife 
abandoned  by  her  husband  may  sxie  for  the  wrongful  attachment  of  exempt  proper- 
ty.*^ Where  special  damages  are  not  averred,  the  recovery  is  the  value  of  the  prop- 
erty with  interest  from  the  date  of  the  levy,*^  In  an  action  for  conversion  of  exempt 
property,  a  judgment  will  not  be  allowed  as  a  set-off.** 

Injunction  will  lie  to  prevent  the  prosecution  of  a  suit  in  a  foreign  jurisdic- 
tion in  evasion  of  the  exemption  laws.*^  It  will  not  lie  to  prevent  the  employer 
from  paying  wages  to  a  nonresident  assignee;  the  remedy  is  by  action  against  the 
employer  for  the  wages.*®  A  judgment  creditor  assigning  his  judgment  to  a  non- 
resident to  evade  the  exemption  laws  of  the  debtor's  state  is  made  liable  to  the 
debtor  by  the  laws  of  Nebraska.*^ 

EXHIBITIONS  AND  SHOWS. 

Public  buildings  cannot  be  used  for  entertainment  purposes  for  private  profit.** 
To  permit  persons  to  stand  in  the  passageways  leading  to  exits  in  theatres  is 


Div.  (N.  Y.)  292.  Allegation  that  property- 
levied  on  Is  not  exempt  must  be  proved. 
Plaintiff  must  prove  the  allegation  of  a  gar- 
nishment affidavit  that  the  indebtedness  is 
not  exempt — Eastlund  v.  Armstrong  (Wis.) 
94  N.  W.  301.  The  laws  allowing  an  exemp- 
tion of  per.sonalty.  household  goods  and  tools 
worth  $1,250  evidence  of  ownership  of  house- 
hold goods,  a  piano,  tools  and  office  furniture 
worth  upwards  of  $1,000  does  not  show  per- 
sonalty subject  to  execution — Whitworth  v. 
McKee   (Wash.)   72  Pac.  1046. 

81.  The  particular  property  which  the 
bankrupt  wishes  to  retain  under  the  state 
exemption  laws  must  be  set  up  in  his  sched- 
ule (In  re  Duffy,  118  Fed.  92'6:  In  re  Le  Vay, 
125  Fed.  990)  and  he  must  follow  the  pro- 
cedure required  by  the  state  statute.  Merely 
claiming  the  benefit  of  the  statute  held  in- 
sufficient— In  re  Garner,  115  Fed.  200.  If  the 
trustee  failed  to  follow  the  statute  in  set- 
ting aside  the  exemption  to  which  the  bank- 
rupt Is  entitled,  he  will  not  be  allowed  the 
payment.  Bankruptcy  Act,  §  47,  subd.  11, 
makes  it  the  duty  of  the  trustee  to  set  aside 
exemptions  of  the  bankrupt  and  "report  the 
same  to  the  court" — In  re  Hoyt,  119  Fed.  987. 
Where  no  trustee  has  been  appointed,  the 
bankruptcy  court  has  jurisdiction  to  set 
apart  particular  property  belonging  to  the 
bankrupt  as  exempt,  though  §  47,  (11)  makes 
it  the  duty  of  the  trustee  to  set  It  apart — 
Smalley  v.  Laugenour,  30  Wash.  307,  70  Pac. 
786.  In  ejectment  brought  by  a  purchaser 
under  execution  sale  three  days  after  the  de- 
fendants filed  a  petition  in  bankruptcy,  the 
defendants  may  show  an  order  made  by  the 
bankruptcy  court  setting  aside  the  particu- 
lar property  as  exempt  (Id.).  If  the  only 
assets  of  a  voluntary  bankrupt  were  exempt 
and  there  was  no  necessity  for  the  appoint- 
ment of  a  trustee,  the  court  still  had  juris- 
diction to  order  it  set  apart,  (Id.).  The  or- 
der relates  back  to  the  time  of  the  filing  of 
the  petition  and  It  Is  an  adjudication  that 
there  are  no  existing  liens  thereon — Id. 
The  act  of  the  trustee  In  bankruptcy  in  set- 
ting aside  exempt  property  is  a  ministerial 
act — In  re  Campbell.  124  Fed.  417.  Where  an 
exemption  Is  set  apart  under  the  state  law 
the  trustee  In  bankruptcy  acquires  no  title 
*o  the  exempt  property — McKenney  v.  Che- 
ney   (Ga.)    45    S.   B.    433.      As   no    title   to    ex- 


empt property  passes  to  the  trustee  In  bank- 
ruptcy, creditors  having  claims  for  unpaid 
portions  of  the  purchase  price  of  property, 
claiming  the  right  to  have  It  sold  and  the 
proceeds  applied  to  their  claims  are  proper 
persons  to  present  the  action  and  not  the 
trustee  In  bankruptcy  (In  re  Boyd.  120  Fed. 
999)  and  It  is  no  longer  within  the  jurisdic- 
tion of  the  bankruptcy  court  (In  re  Seydel, 
118  Fed.  207);  therefore  the  court  cannot 
entertain  a  petition  after  the  discharge  of 
the  bankrupt  for  a  readjustment  of  the  ex- 
emptions. If  the  creditor  had  notice  of  the 
claim  of  exemptions  and  failed  to  appear  and 
object  to  the  allowance  he  would  at  any  rate 
be  precluded  by  laches  to  have  the  proceed- 
ings re-opened  after  discharge  of  the  bank- 
rupt and  the  exemptions  readjusted.  (In  re 
Reese,  115  Fed.  993)  or  to  enforce  a  special 
lien  against  it,  (In  re  Seydel.  118  Fed.  207) 
or  a  lien  not  affected  by  the  bankrupt's  dis- 
charge— White  V.  Thompson  (C.  C.  A.)  119 
Fed.  868.  A  creditor  may  object  to  a  bank- 
rupt's exemption  allowance — In  re  Campbell, 
124  Fed.  417.  Where  on  the  hearing  of  the 
exceptions  to  the  report  setting  aside  ex- 
empt property  to  the  bankrupt  neither  the 
bankrupt  nor  creditors  holding  notes  waiv- 
ing exemptions  made  proof  that  the  property 
set  off  was  paid  for  and  the  referee  decided 
against  the  right  of  exemption  the  cause 
will  not  be  reopened  for  such  proof  after 
sale  of  the  property  by  agreement  of  the 
parties   In   Interest — Id. 

82.  Baum  v.  Turner,  25  Ky.  L.  R.  600,  76 
S.  W.  129. 

83.  Morris  v.  Williford  (Tex.  Civ.  App.) 
70  S.  W.  228.  Plaintiff's  conclusion  as  to  the 
\mount.  of  the  damages  Is  inadmissible:  he 
must  show  the  circumstances — Id. 

84.  Staggs'  Heirs  v.  Piland  (Tex.  Civ. 
App.)    71   S.  W.   762. 

85.  Galbralth  v.  Rutter,  20  Pa.  Super.  Ct. 
',54;  Biggs  v.  Colby  (Ind.  T.)  69  S.  W.  910. 
An  Injunction  to  restrain  the  prosecution  of 
I  suit  In  a  foreign  jurisdiction  In  evasion  of 
".he  exemption  laws  is  to  prevent  a  fraud 
^nd  not  to  stay  proceedings  within  a  law 
igalnst  Injunction  to  stay  proceedings  on 
iudgments  under  a  certain  amount — Id.  The 
writ  wiU  not  be  denied  by  reason  of  statutes 
against   its    issuance   where   the   judgment    is 


EXHIBITIONS— EXPLOSIVES. 


1197 


by  some  law?  forbidden. ^^  The  space  betvreen  the  orchestra  circle  seats  and  the 
rear  wall  has  been  held  not  a  "passageway,"^"  but  the  space  necessary  to  reach  a 
side  entrance  to  the  theatre  is.®^  A  statute  making  it  unlawful  to  refuse  to  admit 
to  an  opera  house,  theatre,  or  race  course  any  adult  person  who  produces  a  ticket, 
is  a  proper  exercise  of  the  2)olice  power  of  the  state,**-  and  a  recovery  under  such 
statute  will  not  include  damages  for  injuries  to  the  business  of  the  person  refused 
admittance,^^  though  exemplary  damages  may  be  awarded.^* 

For  injuries  to  spectators  resulting  from  the  negligence  of  the  exhibitor,  he 
may  be  held  liable,^^  and  whether  proper  precautions  were  taken  to  protect  specta- 
tors is  a  question  for  the  jury.^" 

EXPLOSIVES  AND  COMBUSTIBLES. 

Cities  may  regulate  the  storage  of  combustibles  and  explosives,^^  and  pro- 
hibit the  explosion  of  firecrackers  without  the  written  consent  of  the  mayor.**^ 

A  statute  punishing  the  manufacture  of  compressed  gases  in  tenements  does 
not  prohibit  their  use  therein  in  the  manufacture  of  other  compounds.®'  Ignorance 
of  the  existence  or  scope  of  an  ordinance  against  shooting  firecrackers  and  tlie 
fact  of  general  violation  of  same  without  punishment  will  not  excuse  a  violation 
of  the  ordinance.^  The  inspector  of  combustibles  in  New  York,  knowing  of  an 
illegal  storage,  may  confiscate  same  without  orders  from  the  fire  commissioner.^ 

The  care  required  in  the  use  of  explosives  is  that  of  ordinarily  prudent  men 
having  in  mind  the  dangerous  nature  of  the  agency,^  and  it  is  the  duty  of  a 
seller  to  notify  purchasers  of  inherent  dangers.*     The  placing  of  dynamite  par- 


less  than  a  stated   amount  as  such   statutes 
have  no  extra  territorial  effect — Id. 

8«.  Galbraith  v.  Rutter,  20  Pa.  Super.  Ct. 
554. 

87.  Sufficiency  of  evidence  of  an  evasive 
assii^nmgnt — Frieden  v.  Conkling  (Neb.)  96 
N.  W.  615. 

88.  The  owner  of  an  opera  house,  how- 
ever, cannot  restrain  such  use — Amusement 
Syndicate  Co.  v.  Topeka  (Kan.)  74  Pac.  606. 
School  buildings — Sugar  v.  Monroe,  108  La. 
677,   59  L.  R.  A.   723. 

89.  Laws  1S97,  c.  378;  New  York  City 
Charter — Sturgis  v.  Grau,  39  Misc.  (N.  T.) 
330. 

90.  Sturgis   V.  Grau,   39  Misc.    (N.   Y.)    330. 

91.  Sturgis  V.  Hayman,  84  N.  Y.  Supp. 
126. 

93.  St.  189:.;.  p.  220,  c.  185 — Greeneberg  v. 
Western  Turf  Ass'n   (Cal.)   73  Pac.  1050. 

93.  Evidence  of  other  refusals  than  the 
one  sued  on  is  tl-ierefore  not  admissible — 
Greeneberg  v.  Western  Turf  Ass'n  (Cal.)  73 
Pac.  1050. 

94.  Under  Code  Cal.  §  3294 — Greeneberg  v. 
Western  Turf  Ass'n   (Cal.)    73  Pac.  1050.. 

95.  Held  not  liable  for  injuries  resulting 
from  explosion  of  fireworks^— Sebeck  v.  Platt- 
deutsche  Volksfest  Verein  (C.  C.  A.)  124  Fed. 
11.  An  agricultural  society  is  in  duty  bound 
to  use  reasonable  care  in  keeping  its  grounds 
and  approaches  thereto  safe  (Thornton  v. 
Maine  State  Agr.  Soc,  97  Me.  108)  and  in 
granting  exhibition  privileges  to,  and  in  the 
exercise  of  such  privileges  by  others,  it 
must  see  that  public  safety  is  not  jeopard- 
ized  Texas    State    Fair    v.    Marti    (Tex.    Civ. 

Add)   69  S.  W.  432;  Texas  State  Fair  v.  Brit- 
tain  (C.  C.  A.)   118  Fed.  713. 

It  Is  not.  however,  necessary  to  expressly 


state  facts  In  the  declaration  wherein  the 
defendant  neglected  its  duty  In  failing  to 
take  proper  care  of  its  grounds — Benedict  v. 
Union  Agr.   Soc,  74  Vt.   91. 

90.  Sebeck  v.  Plattdeutsche  Volksfest 
Verein   (C.  C.  A.)   124  Fed.  11. 

97.  An  ordinance  making  it  unlawful  to 
store  explosive  oils  within  1,000  feet  of 
dwellings,  stores,  etc.,  in  greater  quantities 
than  25(0  gallons  Is  not  unreasonable  as  ap- 
plied to  a  plant  in  operation  before  the  erec- 
tion of  such  buildings — Standard  Oil  Co.  v. 
Danville,   199   111.   50. 

98.  Not  void  as  a  delegation  of  legislative 
oower — Centralla  v.  Smith  (Mo.  App.)  77  S. 
W.  488. 

99.  Pen.  Code*!  389 — People  v.  Llchtman, 
173  N.  Y.  63. 

1.  Nor  the  fact  that  tlie  citizens  had  ad- 
vertised a  Fourth  of  July  celebration — Cen- 
tralia  v.  Smith   (Mo.  App.)   77  S.  W.  488. 

2.  Greater  New  York  Charter,  §§  727,  728, 
731,  763,  771 — People  v.  Murray,  76  App.  Dlv. 
(N.  Y.)   118. 

3.  Steam  boilers — Merryman  v.  Hall 
(Mich.)  91  N.  W.  647.  Gas — Indianapolis 
Abattoir  Co.  v.  Temperly,  159  Ind.  651.  Per- 
sons giving  fireworks  exhibitions  must  use 
the  care  and  prudence  of  ordinarily  prudent 
men  to  protect  spectators  from  injury  and 
this   care    is    used   where    competent    persons 

re  employed  to  superintend  the  exhibit  and 
spectators  are  required  to  view  the  exhibit 
at  a  reasonable  distance  from  the  pla«e  of 
discharge — Sebeck  v.  Plattdeutsche  Volksfest 
Verein    (C.  C.  A.)    124  Fed.   11. 

4.  A  seller  of  champagne  elder  negligent- 
ly charged  without  testing  bottles  and  fall- 
ing to  notify  purchaser  of  its  Intrinsic  dan- 
ger  is   liable    for   Injuries   caused    by   Its   ex- 


1198 


EXPLOSIVES— EXTORTION. 


tially  exposed  on  a  vacant  lot  used  by  children  as  a  play  ground  constitutes  action- 
able negligence.'  Persons  engaged  in  blasting  are  liable  for  injuries  to  buildings 
without  regard  to  the  care  exercised.' 

Under  laws  which  require  ventilation  of  mines,  a  mine  owner  failing  in  this 
respect  is  liable  for  injuries  caused  by  explosion  of  gas.'^ 

It  is  not  unlawful  or  a  nuisance  per  se  to  shoot  bombs,  rockets,  and  explosives 
in  a  careful  and  suitable  manner  on  one's  own  premises.*  It  is  negligence  for 
persons  giving  fireworks  exhibits  to  discharge  bombs  so  poorly  constructed  that 
they  will  not  explode  in  the  air  and  are  thrown  into  private  premises  where  they 
may  be  handled  by  persons  not  acquainted  with  their  dangerous  nature.^  Where 
the  defect  in  fireworks  is  not  apparent  or  discoverable  on  inspection,  the  failure  of 
exhibitors  to  ascertain  the  defect  is  not  negligence.^**  A  fireworks  company  selling 
a  bill  of  goods  and  sending  a  man  to  superintend  their  firing  is  liable  for  his  negli- 
gence.^^ 

Actions  for  injuries. — The  negligence  of  defendant  must  be  shown  as  in  other 
cases  of  negligence.^*  An  engineer  injured  by  the  explosion  of  oil  purchased  by 
his  employer  may  not  maintain  an  action  against  the  seller.^'  For  breach  of 
warranty  in  the  sale  of  a  flash  lamp  warranted  to  contain  no  explosive  compound, 
scienter  need  not  be  alleged.^*  On  the  question  of  negligence  in  blasting  causing 
injury  to  building,  the  weight  of  the  blasting  charges  used,  the  preparation  of 
holes  for  the  charge,  the  weight  put  upon  the  blasts,  and  their  effect  on  the  dam- 
aged walls,  may  be  shown.^'  Negligence  in  the  manufacture  of  lubricating  oil 
will  not  be  inferred  from  the  fact  of  an  explosion  where  gasolene  was  used  in  the 
room  for  lighting  purposes.^'  The  measure  of  damages  for  injuries  to  buildings 
caused  by  an  explosion  is  the  fair  and  reasonable  cost  of  restoration  to  condition 
at  the  time  of  the  explosion.^''  There  may  be  a  recovery  for  disease  resulting  from 
nervous  shock  caused  by  blasting.^^ 

Contracts  relating  to  grounds  or  buildings  often  contain  stipulations  regulat- 
ing keeping  of  explosives.^" 

EXTORTION. 

The  crime  at  common  law  is  the  unlawful  taking,  by  any  officer,  by  color  of 
his  office,  of  money  or  other  valuable  thing  not  due  to  liim  or  more  than  is  due 
or  before  it  is  due.     It  sometimes  signifies  any  injury  under  color  of  right.^" 


plosion — Weiser  v.  Holzman  (Wash.)  73  Pac. 
797. 

5.  Nelson  v.  McLellan,  31  Wash.  208,  71 
Pac.  747. 

6.  Fitzsimons  v.  Braun,  199  111.  390. 

7.  Tenn.  Acts  1881,  §  7 — Russell  v.  Dayton 
Coal  &  Iron  Co.,  109  Tenn.  43.  Injuries  from 
explosion  of  gas  generally,  see  Gas. 

8.  9.  Biankl  v.  Greater  American  Exposi- 
tion Co.   (Neb.)   92  N.  W.  615. 

10.  Sebeck  v.  Plattdeutsche  Volksfest 
Verein  (C.  C.  A.)  124  Fed.  11. 

11.  Consolidated  Fireworks  Co.  v.  Koehl 
(in.)  68  N.  E.  1077. 

12.  That  injury  occurred  on  vacant  lot  of 
defendant  used  as  dump  and  by  material 
from  the  ammunition  maker's  plant  not  suffi- 
cient where  explosive  was  not  put  on  lot  by 
defendant  but  must  have  been  removed  from 
plant  surreptitiously — Travell  v.  Banner- 
man.  174  N.  Y.  47.  A  manufacturer  of  pow- 
der fuse  conducting  his  business  with  care 
Is   not   liable   for   an   explosion  ef   a   powder 


magazine  caused  by  the  wilful  act  of  a  stran- 
ger— Kleebauer  v.  Western  Fuse  &  Explo- 
sives Co.,  138  Cal.  497,  71  Pac.  617,  60  L.  R. 
A.  377.  Sufficiency  of  evidence  as  to  the  ef- 
fect of  explosion — Cameron  v.  New  England 
Tel.   Co.;  182   Mass.    310. 

13.  Standard  Oil  Co.  v.  Murray  (C.  C.  A.) 
119  Fed.  572. 

14.  Wood  V.  Anthony  &  Co.,  79  App.  Div. 
(N.  Y.)   111. 

15.  Cebrelli  v.  Church  Const.  Co.,  84  N.  Y 
Supp.  919. 

16.  Standard  Oil  Co.  v.  Murray  (C.  C.  A.) 
119  Fed.  572. 

17.  Consolidated  Gas  Co.  v.  Getty.  96  INId. 
683;  Fitzsimons  Co.  v.  Braun,  199  111.  390; 
Irvine  v.  Smith,  204  Pa.  58. 

18.  Watkins  v.  Kaolin  Mfg.  Co.,  131  N.  C. 
536.  60  L.  R.  A.  617. 

19.  See  Insurance;  Landlord  &  Tenant. 

20.  Cyc.  Law  Diet.  "Extortion."  The  term 
Is  often  In  loose  use  confused  with  Black- 
mail,   ante,    p.    843.    and    with    the    statutory 


§  2 


EXTORTION— EXTRADITION. 


1199 


Threatening  discharge  from  employment  is  not  a  menace  to  "property"  within 
a  statutory  definition  of  "extortion  lay  threats,"^^ 

An  indictment  for  "extortion  by  threats"  need  not  particularize  the  threat.^^ 
Evidence  of  relationship  of  parties  is  admissible  though  incidentally  showing  other 
crimes.^' 

A  civil  remedy  to  forfeit  overcharges  by  motion  in  the  court  wherein  services 
were  rendered  gives  a  court  jurisdiction  though  the  sum  is  less  than  the  ordinary 
jurisdictional  minimum,^* 

EXTBADITION. 

§  1.  International. — Under  the  treaty  with  Great  Britain,  extradition  can- 
not be  asked  where  the  place  of  the  offense  was  not  at  the  time  thereof  under  British 
rule.^°  Stockholder  working  for  share  of  profits  is  within  embezzlement  clause 
of  French  treaty.-"  Funds  in  municipal  savings  bank  are  public  funds  within  the 
treaty  with  Prussia. ^^  Acts  "made  criminal  by  the  laws  of  both  countries"  in- 
clude acts  made  criminal  by  the  demanding  government  and  the  state  where  the 
fugitive  is  found,^*  and  absolute  identity  of  statutes  is  not  essential.^'' 

Proceedings. — A  United  States  commissioner  must  have  been  designated  to 
act  in  extradition  proceedings.^"  The  proceedings  must  be  in  the  state  or  dis- 
trict where  the  fugitive  is  found.'^  No  preliminary  requisition  from  the  demand- 
ing government  is  necessary/^  nor  is  evidence  of  authority  of  foreign  consul  to 
make  complaint.^^  The  complaint  must  charge  the  offense  with  certainty.^*  Em- 
bassador's certificate  to  depositions,  etc.,  substantially  in  language  of  Act  Aug.  3, 
1882,  §  5,  is  sufficient.^'  Under  the  treaty  with  Russia,  no  copy  of  the  warrant 
need  be  produced,'" 

Review. — Territorial  jurisdiction  of  the  demanding  power  over  the  place  of 
the  crime  may  be  reviewed,^^  but  sufficiency  of  the  evidence  to  show  criminality 
cannot  be.'*  Objection  that  warrant  should  be  returnable  before  judge  issuing 
instead  of  commissioner  cannot  be  raised  for  the  first  time  on  habeas  corpus.^* 
Pendency  of  a  second  complaint  covering  the  same  ground  does  not  require  dis- 
missal of  an  appeal  in  habeas  corpus  proceedings.*" 

§  2.  Interstate. — Extradition  depends  on  the  federal  constitution,  not  on 
comity.*^     One  not  in  the  demanding  state  at  the  time  the  offense  wais  commit- 


crlme   of  Threats.     Oppression  In   office,   see 
Officers  and  Public  Employes. 

21.  Pen.  Code,  §  7 — In  re  McCabe  (Mont.) 
73  Pac.  1106.  Evidence  held  sufficient  to 
show  putting  in  fear — Glover  v.  People  (111.) 
€8   N.   E.    464. 

22.  Glover  v.  People  (111.)  68  N.  E.  464. 
Averments  held  sufficient  to  lay  threats  to 
accused  within  hearing  of  person  threatened 
la.     "Willful"  held  equivalent  to  malicious 

— Id. 

23.  Demand  for  reimbursement  of  ex- 
pense of  a  former  prosecution — Glover  v. 
People   (111.)   68  N.  E.  464. 

24.  State  v.  Reeves  (Fla.)  32  So.  814. 

2.">.  Not  for  offense  committed  in  South 
\frican  Republic  before  proclamation  of  an- 
nexation—In  re  Taylor,  118  Fed.  196. 

20.  He  is  a  person  "hired  or  salaried"  by 
*he  corporation — In   re  Balensi.   120  Fed.  864. 

27.     In  re  Reiner,  122  Fed.  109. 

28*  Treaty  with  Great  Britain  (26  Stat. 
.!>9)_Lln  re  Wright,  123  Fed.  463. 


29.  Fraudulent  acts  as  corporate  director 
held  extraditable — Wright  v.  Henkel,  190  U. 

S.   40. 

30.  Rev.  St.  U.  S.  §  5270.  His  jurisdiction 
is  not  impaired  by  the  fact  that  the  designa- 
tion was  not  made  until  after  the  warrant 
was  issued — Grin  v.  Shine,  187  U.  S.  181.  No 
designation  is  necessary  to  entitle  him  to 
administer  the  oath  to  the  complainant — Id. 

31.  In  re  Walshe,  125  Fed.  572. 

32.  33.     Grin  v.   Shine,  187  U.  S.  181. 

34.  Complaint  for  embezzlement  held  suf- 
ficient— Grin  v.  Shine,  187  U.  S.  181. 

35.  The  certificate  was  that  the  docu- 
ments were  so  authenticated  as  to  be  ad- 
mitted "in  evidence"  for  similar  purposes  In 
Russia  the  words  quoted  not  being  in  th* 
statute — In  re  Grin,  112  Fed.  790. 

36.  Grin  v.  Shine,  187  U.  S.  181. 

37.  In  re  Taylor,   118   Fed.   196. 

38.  39.     Grin  v.  Shine,  187  U.  S.  181. 

40.  Wright  V.  Henkel,  190  U.  S.  40. 

41.  People  V.  Hyatt,  172  N.  Y.  176. 


12U0 


EXTRADITION— FACTORS. 


§2 


ted  is  not  a  "fugitive  from  justice/'"  though  he  has  been  there  after  the  crime 
but  before  the  extradition,*^  but  to  make  him  a  "fugitive"  it  is  not  necessary  that 
he  left  to  avoid  prosecution.** 

Proceedings. — The  act  giving  the  federal  judge  in  the  Indian  Territory  the 
power  of  a  governor  to  demand  extradition  is  valid.*'  Extradition  may  be  had 
in  a  prosecution  commenced  by  information.*^  The  nature  of  the  charge  must 
be  clearly  shown,*^  and  that  it  was  not  barred  by  limitation.*^  The  essential 
elements  are  that  the  person  has  been  charged  in  another  state  with  a  crime  and 
has  fled  from  justice.*"  The  demand,  and  papers  accompanying  it,  are  to  be  con- 
sidered in  determining  the  validity  of  the  warrant."^"  The  copy  of  indictment 
accompanving  the  requisition  need  not  state  that  it  is  such;"  and  conflicts  in  the 
affidavits  as  to  date  of  indictment  may  be  resolved  in  favor  of  the  indictment.'^'' 
The  warrant  for  arrest  and  delivery  need  not  recite  the  governor's  findings,"  and 
is  sufficient  if  it  command  the  officer  to  arrest  the  person  demanded  and  deliver 
him  to  the  demanding  officer.^*  The  evidence  before  the  governor  need  not  meet 
the  requirements  of  legal  proof." 

Eeview. — The  warrant  is  only  prima  facie  e\ddence,"  as  is  the  finding  of 
the  governor  that  the  person  is  a  fugitive ;"  but  the  action  of  the  governor  issuing 
the  warrant  cannot  be  reviewed,"  and  to  authorize  any  review  beyond  the  face  of 
the  papers  the  evidence  must  be  in  the  record. ^^  The  question  of  guilt  will  not 
be  tried,^°  and  misjoinder  of  counts  in  the  indictment  will  not  be  considered.®^ 

Rights  of  extradited  persons. — Discharge  from  arrest  in  civil  process  is  not 
a  matter  of  right  after  appearance.^^  One  extradited  for  robbery  may  be  tried  for 
larceny  from  the  person.®" 

FACTOIIS.64 
A  factor  has  no  implied  authority  to  delegate  his  powers."*     His  employment 


42.  Hyatt  v.  People,  188  U.  S.  691.  One 
shown  to  have  left  the  demanding  state  aft- 
er some  of  the  acts  constituting  the  crime 
were  committed  is  a  fugitive — State  v. 
Clough.  71  N.  H.   594. 

43.  Hyatt  V.  People,  188  U.  S.  691. 

44.  That  having  committed  a  crime  with- 
in one  state  he  was  thereafter  found  in  an- 
other i^  sufficient — Ex  parte  Dickson  (Ind. 
T.)   69  S.  W.   943. 

45.  Either  of  the  three  district  judges 
has  the  power  conferred  on  the  single  judge 
in  office  when  the  act  was  passed  (Act  May 
2.  1S90.  §  41) — Ex  parte  Dickson  (Ind.  T.)  69 
S.  W.  943.  ^^ 

4«.     People  V.  Stockwell   (Mich.)    97  N.  W. 

"65.  ..    ^^      . 

47.  Statement  that  charge  was  uttering 
forged  wills"  held  sufflcient — State  v.  Clough, 
71  N.  H.  594. 

48.  Statement  that  accused  was  a  fugitive 
from  justice  held  to  avoid  bar  apparent  from 
date  of  crime— State  v.  Clough,  71  N.  H.  594. 

49.  Information  that  prisoner  hired  a 
horse  in  New  Jersey  and  failed  to  return 
same  that  an  Indictment  was  found  against 
him  for  larceny  and  that  he  thereafter  fled 
from  New  Jersey  and  is  now  in  New  York 
is  sufficient- People  v.  V^^arden  of  City  Pris- 
on.  83  App.  Div.    (N.  T.)    456. 

50.  State  v.  Clough,  71  N.  H.  594. 

51.  The  governor's  certificate  stated  that 
it  appeared  from  the  annexed  papers  that  the 
defendant  was  charged  with  a  crime,  etc. — 
Ex  parte  Dickson   (Ind.  T.)   69  S.  W.  943. 


53.  Affidavits  were  conflicting  while  cap- 
tion of  indictment  agreed  with  the  affidavit 
giving  the  date  as  after  the  crime — State  v. 
Clough.  71  N.  H.  594. 

50.     State  V.  Clough.  71  N.  H.  594. 

5i.  Pub.  St.  c.  263,  §  8,  requires  that  It 
autliorize  the  demanding  agent  to  take  the 
prisoner  to  the  state  line  and  require  all 
civil  officers  to  render  needful  assistance — 
State  v.  Clough,  71  N.  H.  594. 

5.1.  Copy  of  affidavit  certified  by  demand- 
ing governor  held  sufficient  to  show  that  ac- 
cused was  a  fugitive — State  v.  Clough  (N. 
H.)    55  Atl.  554. 

5e.  It  may  be  shown  that  the  prisoner 
was  not  in  the  demanding  state  when  the 
crime  was  committed  (Hyatt  v.  People.  188 
U.  S.  691)  but  sucli  fact  does  not  require 
his  discharge  on  habeas  corpus  (Id.)  and  ac- 
cused is  not  entitled  of  right  to  be  heard 
before  the  governor  in  respect  thereto — State 
V.  Clough   (N.  H.)   55  Atl.  554. 

57.  State  v.  Clough,  71  N.  H.  594;  Id.,  55 
Atl.  554;  Bruce  v.  Rayner  (C.  C.  A.)  124  Fed. 
481. 

58.  Hyatt  v.  People,  188  U.  S.  691. 

59.  People  v.  Hyatt,  172  N.  Y.  176. 

CO.  Bruce  v.  Rayner  (C.  C.  A.)  124  Fed. 
481.  But  accused  may  show  that  the  prose- 
cution is  barred  by  limitations — Id. 

Gl.  Indictment  good  under  decisions  of 
demanding  state  but  constitutionality  of 
practice  doubtful — State  v.  Clough.  71  N.  H 
594. 

03.     It    will    be    ordered    only    In    o.Tse    of 


FACTORS— FALSE  IMPRISONMENT. 


1201 


may  be  terminated  at  any  time  where  duration  is  not  specified."®  He  must  make 
reasonable  and  diligent  effort  to  make  the  most  favorable  sale." 

A  factor  is  not  protected  by  good  faith  in  disposing  of  feloniously  or  fraudu- 
lently acquired  goods.®^ 

Lien. — To  have  a  lien,  factor  must  have  actual  or  constructive  possession.^* 
It  is  extinguished  on  wrongful  conversion  of  the  property.^" 

Proceeds  of  sale  retained  for  application  to  uses  of  the  principal  become  a 
trust  fund.'^^  If  the  factor  takes  notes  he  becomes  personally  liable  on  their  nego- 
tiation or  application  to  his  own  indebtedness.''^ 

Commissions. — Though  the  factor  first  place  the  parties  in  business  relations, 
that  does  not  entitle  him  to  commissions  on  their  subsequent  transactions.'^' 

FALSE  IMPRISONMENT. 

§  1.  What  constitutes,  persons  liable,  and  the  recovery. — The  actual  deten- 
tion of  a  person  and  the  unlawfulness  thereof  constitute  a  trespass,  the  gravamen 
being  the  unlawfulness  of  the  imprisonment,'^*  and  an  arrest  and  detention  on 
a  writ  or  warrant  not  based  on  information,^"  or  complaint  filed/®  or  if  the  war- 
rant is  void  on  its  face  as  where  it  failed  to  state  that  information,  complaint,  or 
aflBdavit  had  been  filed,  is  unlawful.''^     Malice  is  not  an  element.'^® 

If  there  was  probable  cause  for  making  the  arrest  without  a  warrant  no  action 
will  lie,''*  and  the  officer  has  the  burden  of  proving  justifiable  cause,^°  by  a  pre- 


fraud    or   abuse    of    process — White   v.    Mar- 
shall, 23  Ohio  Circ.  R.  376. 

63.  The  former  offense  including  the  lat- 
ter— State  V.  Dunn   (Kan.)    71  Pac.  811. 

64.  The  distinction  between  a  factor  and 
a  mere  agent  or  broker  lies  in  the  posses- 
sion of  the  property — People's  Bank  v.  Frick 
Co.  (Okl.)  73  Pac.  949.  See  Agency;  Bro- 
kers. 

G.5.  Subagents  or  persons  employed  by 
him  In  handling  the  property  do  not  be- 
come agents  of  his  principal — People's  Bank 
V.   Frick  Co.    (Okl.)   73  Pac.   949. 

66.  Outerbridge  v.  Campbell,  84  N.  T. 
Supp.  537. 

67.  "Where  he  agrees  to  get  the  highest 
obtainable  price  Is  not  bound  to  obtain  the 
highest  market  price — Craig  v.  Harrison- 
Switzer  Milling  Co.,  103  111.  App.  486.  Or- 
dinary care,  skill  and  diligence  relieves 
against  sale  for  less  than  market  value — 
Drumm-Flato  Commission  Co.  v.  Union  Meat 
Co.    (Tex.  Civ.  App.)   77  S.  W.   634. 

68.  Liable  to  true  owner  for  conversion, 
though  not  negligent  In  believing  the  goods 
were  placed  in  his  hands  for  one  having 
title  and  though  a  carrier  has  been  negli- 
gent In  allowing  the  goods  to  be  diverted 
from  their  proper  destination  to  the  factor 
by  means  of  a  forged  way  bill — Johnson  v. 
Martin,  87  Minn.  370,  59  L,.  R.  A.  733.  So 
factor  Is  liable  for  conversion  of  goods 
which  he  sells  which  came  into  his  hands 
from  a  buyer  who  had  bought  for  cash 
and  not  paid,  though  the  factor  act  in  due 
course  of  business  and  without  notice — 
Flannery  v.   Harley,   117   Ga.    483. 

69.  People's  Bank  v.  Frick  Co.  (Okl.)  73 
Pac'  949-  Advances  after  possession  has 
passed  to  purchaser  will  not  support  lien 
and  he  must  sue  in  the  name  of  his  prin- 
cipal for  purchase  price  though  he  sell  in 
j^jg  own— Ermeling  v.  Gibson  Canning  Co.. 
105  111.  App.  196. 

Curr.  Law — 76. 


70.  People's  Bank  v.  Frick  Co.  (Okl.)  73 
Pac.   949. 

71.  If  deposited  In  bank  by  the  factors 
after  their  insolvency  the  bank  If  with 
knowledge  of  the  Insolvency  is  placed  on 
Inquiry  and  liable  to  true  owner  for  diver- 
sion— Interstate  Nat.  Bank  v.  Claxton  (Tex. 
Civ.    App.)     77    S.    W.    44. 

73.  People's  Bank  v.  Frick  Co.  (Okl.)  73 
Pac.    949. 

73.  Employment  to  sell  two  trainloads  of 
cattle  which  were  shipped  as  one  train, 
does  not  entitle  factor  to  commissions  on 
cattle  subsequently  shipped  the  purchaser 
who  took  the  first  on  the  consignor's  agree- 
ment to  make  a  further  shipment  of  better 
quality — Taylor  v.  Johnston  (Tex.  Civ.  App.) 
70  S.  "W.   1022. 

74.  See  this  case  for  charge  to  jury — 
Petit  V.  Colmary   (Del.)   55  Atl.   344. 

75.  As  Tvhere  defendant  filed  affidavits 
charging  criminal  offense  informing  tlie  jus- 
tice that  the  prosecuting  attorney  desired  a 
warrant,  no  information  being  filed  and  no 
advice  of  a  necessity  of  Issuance  of  a  war- 
rant by  the  justice — ^McCaskey  v.  Garrett, 
91   Mo.   App.   354. 

76.  Kossouf    V.    Knarr    (Pa.)    55    Atl.    854. 

77.  Church   v.    Pearne,    75   Conn.    350. 

78.  Kelly  v.  Durham  Traction  Co.,  132  N. 
C.   368. 

79.  As  where  the  plaintiff  was  standing 
on  the  platform  of  a  moving  train  under  cir- 
cumstances indicating  that  he  was  intending 
to  steal  a  ride  under  Laws  1897,  p.  116 — Sum- 
mers V.  Southern  R.  Co.  (Ga.)  45  S.  E.  27. 
The  arrest  of  a  person  in  commission  of  an 
act  supposed  to  be  criminal  though  not  tech- 
nically so,  Is  justifiable — Van  v.  Pacific 
Coast    Co.,    120    Fed.    699. 

80.  Franklin  v.  Amerson  (Ga.)  45  S.  E. 
698:  Edger  v.  Burke,  96  Md.  715;  Marshall 
V.    Cleaver    (Del.)     56    Atl.    380. 


1202 


FALSE  IMPRISONMENT. 


§    1 


ponderance  of  evidence.®^  An  attempted  departure  from  the  state  with  personalt}' 
in  possession  in  violation  of  a  contract  is  not  an  excuse  for  an  arrest  without  a 
warrant.*^  A  detention  of  the  person,  however,  for  a  period  longer  than  necessary 
to  obtain  a  warrant,  renders  him  liable  for  false  imprisonment,*^  or  if  the  officer  of 
his  o-«Ti  motion  discharges  the  person  he  becomes  a  trespasser  ab  initio;**  but  if 
the  officer  made  a  justifiable  arrest,  the  detention  for  the  purpose  of  examining 
the  person  as  to  his  sanity  will  not  necessarily  render  the  detention  unlawful.*^ 
If  the  arrest  was  illegal  because  done  by  an  officer  without  a  warrant,  recovery 
can  be  had  for  the  detention  only  up  to  the  time  of  delivery  of  custody  to  the 
officer  having  the  warrant.** 

If  the  justice  who  issues  the  warrant  is  without  jurisdiction,  he  is  personally 
liable." 

AU  persons  assisting  in  the  procurance  and  issuance  of  the  void  warrant,**  or 
who  without  probable  cause  caused  the  arrest  by  an  officer  without  a  warrant,  may 
be  held  liable.*^  Advice  of  counsel  is  not  a  defense  by  a  person  not  acting  in 
good  faith.*"  Whether  the  prosecuting  witness  was  guilty  of  mere  inadvertence  or 
negligence  in  causing  a  defective  warrant  to  be  issued  is  a  question  for  the  jury.®^ 
The  principal  is  liable  for  the  false  arrest  by  his  agent  only  where  the  latter  acted 
within  the  scope  of  his  authority  in  making  the  arrest,®^  and  where  the  agent  hon- 
estly believed  that  he  was  justified  in  making  the  arrest,  but  if  done  falsely  and 
for  the  purpose  of  extortion,  the  principal  would  not  be  liable.'^  The  question 
whether  the  principal  ratified  the  acts  of  the  agent  in  making  the  false  arrest  is 
for  the  jury.^* 

By  accepting  a  discharge  from  the  officer  making  the  arrest  without  a  war- 
rant,^°  or  by  appearing  pursuant  to  a  void  warrant,^*  or  by  pleading  to  the  charge 


81.  Stewart  v.  Feeley,  118   Iowa,   524. 

82.  Park  v,  Taylor   (C.  C.  A.)   118  Fed.  34. 

83.  Burns'  Rev.  St.  1901,  §  1771 — Harness 
V.   Steele,   159   Ind.   286. 

84.  Stewart  v.  Feeley,  118  Iowa,  524; 
Harness  v.  Steele,  159  Ind.  286. 

85.  Particularly  where  the  person  con- 
sented to  his  discharge  by  the  officer  after 
the  report  of  the  examining  physicians — 
Mulberry   v.  Fuellhart,   203  Pa.   573. 

86.  McCullough  V.  Greenfield  (Mich.)  95 
N.  W.  532. 

87.  The  issuance  by  the  justices  of  the 
peace  sitting  as  a  fiscal  court,  of  a  warrant 
to  enforce  attendance  of  another  justice, 
Is  without  jurisdiction — Stephens  v.  Wil- 
son, 24  Ky.  L.  R.  1832,  72  S.  W.  336.  The 
arrest  on  an  attachment  of  a  witness  for 
failure  to  appear  in  accordance  with  a  sub- 
poena issued  after  Justice  had  lost  juris- 
diction of  the  action,  renders  the  justice 
liable— Holz  v.  Rediske.  116  Wis.  353.  Mere- 
ly because  the  complaint  on  a  criminal 
charge  was  defective  would  not  render  the 
justice  Issuing  the  warrant  thereon  liable 
as  for  a  false  imprisonment — Smith  v.  Jones 
<S.  D.)  92  N.  W.  1084.  Because  records  of 
the  court  fail  to  show  that  sentence  was 
Imposed  will  not  subject  the  court  or  its 
officer  enforcing  the  sentence  to  liability 
for  false  imprisonment.  The  Mayor's  Court 
causing  the  arrest  not  being  a  court  of 
record;  the  failure  is  a  mere  irregularity — 
Gammage   v.   Mahaffey    (La.)    35   So.    266. 

88.  As  the  prosecuting  witness  who  made 
the  complaint — McCaskey  v.  Garrett,  91  Mo. 
App.  364.  The  mere  making  of  a  complaint 
In     good     faith     without     further     participa- 


tion in  the  proceeding  will  not  render  the 
complaining  witness  liable  (Smith  v.  Jones 
[S.  D.]  92  N.  W.  10S4)  as  where  he  gave 
information  of  the  fact  that  the  plaintiff 
was  of  unsound  mind  and  dangerous  to  per- 
sons and  property  of  others — Dougherty  v. 
Snyder,  97  Mo.  App.  495.  Sheriff  making 
arrest  under  extradition  warrant  acts  min- 
isterially and  despite  his  malice  is  not  lia- 
ble unless  concerned  in  issuing  writ — Re 
gan  v.  Jessup  (Tex.  Civ.  App.)  77  S.  W. 
972. 

SS).  The  complaint  in  such  case  must 
aver  that  it  was  done  maliciously  and  with- 
out probable  cause — Dierig  v.  South  Coving- 
ton &  C.  St.  R.  Co.,  24  Ky.  L.  R.  1825,  72 
S.   W.    355. 

90.  Burbanks  v.  Lepovsky  (Mich.)  96  N 
W.   456. 

91.  Gates  v.   Bullock,   136   Ala.    537. 

93.  The  proprietor  of  a  department  store 
is  liable  for  a  false  arrest  by  a  floor  walker 
Av^hose  duty  it  was  to  vratch  customers  and 
prevent  them  from  doing  wrongful  acts — 
Cobb  v.  Simon  (Wis.)  97  N.  W.  276.  Evi- 
dence held  sufficient  to  submit  the  ques- 
tion of  the  consent  of  the  husband  to  the 
wife's  acts  in  causing  arrest — Golibart  v. 
Sullivan,    30   Ind.   App.   428. 

93.  Cobb    v.    Simon    (Wis.)    97    N.    W.    276 

94.  Cobb  v.  Simon  (Wis.)  97  N.  W.  276. 
Ratification  by  the  manager  of  a  company 
is  sufficient  to  render  It  liable — Simmon  v. 
Bloomingdale,  81  N.  Y.  Supp.  499.  Prepara- 
tion for  trial  by  the  prosecutor  without 
knowledge  that  the  warrant  was  properly 
executed,  is  not  ratification  of  the  unlawful 
arrest — Gates  v.    Bullock.    136   Ala,    537. 


§  2 


ACTION  FOR  DAMAGES. 


1203 


without  objecting  to  the  mode  of  malting  the  arrest,  the  plaintiff  does  not  waive 
any  rights.''" 

Damages. — If  the  arrest  was  unlawful,  the  plaintiff  is  entitled  at  least  to  nom- 
inal damages/*  and  exemplary  damages  can  be  recovered  only  when  the  officer 
acted  maliciously.®"  Physical  and  mental  pain  and  humiliation  are  proper  ele- 
ments of  damage.^  To  warrant  the  recovery  of  special  damages,  they  must  be 
pleaded.^     The  amount  of  damages  is  a  question  for  the  jury.^ 

§  2.  The  action  to  recover  damages. — The  complaint  must  aver  detention 
and  damage.*  In  Indiana,  an  allegation  that  the  defendant  unlawfully  imprisoned 
plaintiff  and  deprived  him  of  his  liberty  is  sufficient,^  but  in  New  York,  the  com- 
plaint must  set  out  the  facts  showing  that  the  imprisonment  and  detention  were 
caused  by  illegal  means.^ 

The  defense  of  justification  must  be  pleaded,''  and  all  the  facts  under  which 
the  defendant  seeks  to  justify  the  arrest  must  be  set  out;*  if  the  arrest  was  on  a 
charge  of  felony,  the  plea  need  not  state  that  it  was  under  authority  of  a  warrant.® 

The  defendant  has  the  burden  of  establishing  the  legality  of  the  arrest.^"  A 
discharge  by  the  magistrate  does  not  of  itself  establish  that  the  plaintiff  was  im- 
properly arrested.^^  Particular  cases  determining  the  admissibility  and  sufficiency 
of  evidence  and  instructions  by  the  court  are  collected  in  the  footnotes.^^  The  de- 
fendant may  prove  how  much  he  earned,  in  mitigation  of  damages.^* 


©5.     Stewart   v.   Feeley,    118   Iowa,    524. 

96.  Church  v.  Pearne,  75  Conn.   350. 

97.  McCullough  V.  Greenfield  (Mich.)  95 
N.   W.   532. 

98.  Kossouf  V.  Knarr  (Pa.)  55  Atl.  854; 
Hoagland  v.  Forest  Park  Highlands  Amuse- 
ment Co..  170  Mo.  335;  Maher  v.  Wilson. 
139    Cal.    514,    73    Pac.    418. 

99.  Marshall  v.  Cleaver  (Del.)  56  Atl. 
380;  Kelly  v.  Durham  Traction  Co.,  132  N. 
C.  368;  Harness  v.  Steele,  159  Ind.  286;  Pet- 
it V.  Colmary  (Del.)  55  Atl.  344.  As  affect- 
ing the  question  of  damages,  the  defendant 
may  show  want  of  malice  by  proving  that 
he  had  a  mortgage  and  that  he  had  prob- 
able cause  to  believe  that  plaintiff  had 
removed  it,  the  ground  for  the  prosecu- 
tion and  arrest — Gates  v.  Bullock,  136  Ala. 
537.  Handcuffing  plaintiff  while  under  ar- 
rest held  not  ground  for  increasing  the  dam- 
ages— McCullough  V.  Greenfield  (Mich.)  95 
N.  W.   532. 

1.  Golibart  v.  Sullivan,  30  Ind.  App.  428; 
Harness  v.  Steele,  159  Ind.  286;  Marshall  v. 
Cleaver  (Del.)  56  Atl.  380.  See  Petit  v.  Col- 
mary (Del.)  55  Atl.  344  for  charge  to  jury 
on  elements  of  damage.  In  aggravation  of 
damages  plaintiff  may  show  that  he  was 
arrested  in  the  presence  of  his  family — 
Young  V.  Gormley   (Iowa)   94  N.  W.  922. 

2.  Loss  of  time,  however,  may  be  proven 
on  the  allegation  of  deprivation  of  liberty 
—Young  v.  Gormley  (Iowa)-  94  N.  W.  922. 
Under  an  allegation  that  plaintiff  was  put 
to  an  expense,  he  cannot  prove  an  expense 
to  secure  his  release — McCaffrey  v.  Thomas 
(Del.)    56  Atl.   382. 

3.  Young  V.  Gormley  (Iowa)  94  N.  W. 
922;  Plncham  v.  Dick  (Tex.  Civ.  App.)  70 
S  W  333-  Damages  held  excessive  (Cobb 
v'  Simon  [Wis.]  97  N.  W.  276;  Plncham  v. 
Dick  [Tex.  Civ.  App.]  70  S.  W.  333);  not 
excessive— Harness  v.  Steele,  159  Ind.  286. 
In  Kentucky  a  railroad  may  be  sued  for 
false  imprisonment  in  a  county  through 
which  it  transported  the  plaintiff  while   un- 


der arrest  that  being  the  place  of  the  In- 
jury— Evans  v.  Maysville  &  B.  S.  R.  Co., 
25   Ky.   L.    R.    1258,   77   S.   W.   708. 

4.  Pease  v.  Freiwald,  39  Misc.  (N.  T.) 
549.  Defect  in  petition  held  cured  by  an- 
swer— Evans  v.  Maysville  &  B.  S.  R.  Co., 
25  Ky.  L.  R.  1258,  77  S.  W.  708.  Complaint 
held  not  to  state  a  cause  of  action — Dierig 
V.  South  Covington  &  C.  St.  R.  Co.,  24  Ky. 
L.   R.    1825,    72    S.   W.   355. 

5.  Harness    v.    Steele,    159    Ind.    286. 

6.  Pease  v.  Freiwald,  39  Misc.  (N.  Y.) 
549. 

7.  Hoagland  v.  Forest  Park  Highlands 
Amusement  Co.,  170  Mo.  335.  Mere  matters 
of  avoidance  cannot  be  shown  under  a  gen- 
eral issue — Noyes  v.  Edgerly,  71  N.  H.  500. 
A  general  denial  in  an  action  against  a 
justice  and  a  constable  is  improper  under 
Gen.  St.  Conn.  1902,  §  609,  and  Court  Rules, 
§    159 — Church    v.    Pearne,    75    Conn.    350. 

8.  Edger  v.   Burke,    96  Md.   715. 

9.  Whether  the  officer  was  justified  in 
making  the  arrest  is  a  question  to  be  deter- 
mined by  the  court — Edger  v.  Burke,  96  Md. 
715. 

10.  Black  V.  Marsh  (Ind.  App.)  67  N.  E. 
201. 

11.  Loughman  v.  Long  Island  R.  Co.,  8.3 
App.    Dlv.    (N.    Y.)    629. 

13.  Admis.sibility  a£  evidence,  (Golibart 
v.  Sullivan.  30  Ind.  App.  428;  Hoagland  v. 
Forest  Park  Highlands  Amusement  Co.,  170 
Mo.  335;  Holz  v.  Redlske,  116  Wis.  353; 
Young  V.  Gormley  [Iowa]  94  N.  W.  922) 
on  the  question  of  damages — Bailey  v.  War- 
ner   (C.   C.   A.)    118   Fed.    395. 

13.  McCaffrey  v.  Thomas  (Del.)  56  Atl. 
382.  Evidence  tending  to  show  a  Justifica- 
tion for  the  arrest,  (Dougherty  v.  Snyder, 
97  Mo.  App.  495)  or  of  good  faith  on  the 
part  of  persons  making  arrest,  is  admissi- 
ble— Plncham  v.  Dick  (Tex.  Civ.  App.)  70 
S.  W.  333.  -  The  result  of  the  trial  on  the 
criminal  charge  cannot  be  shown  by  the 
plaintiff — McCaffrey     v.     Thomas     (Del.)     5*1 


1204 


FALSE  PRETENSES. 


FALSE  PRETENSES  AND  CHEATS.14 

Elements  of  offense. — The  pretense  or  representation  must  be  one  respecting 
a  fact.^°  It  must  be  with  knowledge  and  intent  to  deceive  and  defraud/^  must 
be  calculated  to  deceive/^  and  must  deceive,^-'  and  be  relied  on."  The  general 
rule  is  that  the  person  to  whom  the  pretense  was  addressed-''  must  be  defrauded." 
The  thino-  obtained  must  be  within  the  statutes.^^  It  is  immaterial  whether  that 
which  an  infant  procured  was  a  "necessary."^^  Public  moneys  may  be  the  sub- 
ject of  the  crime/*  and  donations  procured  for  an  ostensible  charity  are  included.-^ 
Partial  truth-'^  or  negligence  of  the  defrauded  person  is  not  a  defense.-^  The  crime 
is  complete  when  and  where  the  goods  or  property  are  surrendered.^^ 


Atl.  382.  Where  the  arrest  was  for  con- 
tempt in  attempting  to  avoid  a  subpoena, 
evidence  of  use  of  abusive  language  to  the 
officer  making  the  arrest  is  inadmissible — 
Holz   V.    Rediske,    116    Wis.    353. 

Sufficiency  of  evidence  (Young  v.  Gorm- 
iey  [Iowa]  94  X.  W.  922;  Harness  v.  Steele, 
159  Ind.  286;  Burbanks  v.  Lepovsky  [Mich.] 
96  N.  W.  456;  Loughman  v.  i^ong  Island  R. 
Co..  83  App.  Div.  [N.  Y.]  629)  on  question 
of  probable  cause  (Burbanks  v.  Lepovsky 
[Mich.]  96  N.  W.  456)  to  show  bad  faith  on 
part  of  defendant  in  making  the  arrest, 
(Dougherty  v.  Snyder,  97  Mo.  App.  495)  to 
show  ratification  of  an  arrest  caused  by  an 
employe — Kelly  v.  Durham  Traction  Co., 
132  N.  C.  368.  The  warrant  on  which  plain- 
tiff was  arrested  need  not  be  offered  in  evi- 
dence, the  legality  of  it  not  having  been 
questioned — Kelly  v.  Durham  Traction  Co., 
132  N.  C.  368.  Where  the  defendant  is  a 
corporation  it  is  not  necessary  to  prove 
who  Fwore  out  the  warrant,  if  it  is  shown 
that  it  was  sworn  out  at  the  instigation  or 
procurement  of  the  defendant — Kelly  v.  Dur- 
ham  Traction   Co.,   132   N.   C.    368. 

Sufficiency  of  instructions — Bdger  v.  Burke, 
96  Md.  715;  Cobb  v.  Simon  (Wis.)  97  N.  W. 
276;  Franklin  v.  Amerson  (Ga.)  45  S.  E. 
698;  Parham  v.  Shockler  (Tex.  Civ.  App.) 
73  S.  'W.  839;  Harness  v.  Steele,  159  Ind. 
■286;  Stewart  v.  Feeley,  118  Iowa,  524;  Hoag- 
laud  V.  Forest  Park  Highlands  Amusement 
Co.,  170  Mo.  335;  Pincham  v.  Dick  (Tex. 
Civ.  App.)    70   S.   W.   333. 

14.  Includes  falses  pretenses  proper  and 
ilso  analogous  statutory  crimes  like  cheats, 
swindling,  confidence  games  and  the  like. 
In  some  states  the  offense  is  now  covered 
by  a  statutory  crime  called  larceny  and  as 
to  those  the  title  Larceny  must  be  consult- 
ed since  any  separation  would  be  impossi- 
ble. 

15.  False  representations  of  fact  may 
consist  in  truthful  statements  of  past  facts 
coupled  with  a  false  declaration  of  future 
purpose— Smith  v.  State,  116  Ga.  587.  Rep- 
resentations as  to  duty  of  school  officers 
are  of  law — State  v.  Lawrence  (Mo.)  77  S. 
W.    497.  ^    ^ 

Particular  facts.  Misrepresentation  that 
one  is  an  officer — Jackson  v.  State  (Ga.)  44 
S  E.  S33.  So  under  U.  S.  Comp.  St.  1901, 
pi  3679— United  States  v.  Ballard.  118  Fed. 
757.  That  accused  had  been  injured  in  a 
collision  and  that  injuries  were  of  a  cer- 
tain   character — Com.    v.    Burton,    183    Mass. 

461. 

10.  Edwards  v.  State  (Fla.)  33  So.  853. 
Mere  concealment  is  not  criminal — Craw- 
lord  V.  StntP.  117  Ga.  247. 


17.  School  directors  are  presumed  to  know 
the  law  relating  to  purchase  of  books — 
State  v.  Lawrence   (Mo.)    77   S.  W.   497. 

18.  Obtaining  money  by  pretenses  of  offi- 
cial character  and  threats  of  arrest  for  crime 
is  blacjcmail  when  the  fear  of  prosecution 
moved  the  threatened  person — Jackson  v. 
State  (Ga.)  44  S.  E.  833.  See,  also,  United 
States  V.  Brown.  119  Fed.  482,  a  prosecu- 
tion for  obtaining  money  from  one  who  had 
violated   revenue   laws. 

19.  Edwards  v.  State  (Fla.)  33  So.  853; 
Jackson  v.  State  (Ga.)  44  S.  E.  833.  Subse- 
quent representations  not  criminal — State  v. 
Pickett,  174  Mo.  663.  They  need  not  be  the 
sole  but  only  the  controlling  inducement — 
State  V.  Morgan,  109  Tenn.  157;  Baker  v. 
State  (Wis.)  97  N.  W.  566;  Braxton  v.  State, 
117  Ga.  703,  citing  2  Clark  &  Marshall. 
Crimes,  841  and  cases  cited.  If  false  pre- 
tenses of  ownership  ■w'ere  the  inducement 
it  makes  no  difference  that  a  mortgage  giv- 
en on  property  was  voidable  for  Infancy — 
Lively  v.  State  (Tex.  Cr.  App.)  74  S.  W. 
321.  Delivery  to  carrier  by  defrauded  per- 
son is  sufficient — In  re  Stephenson  (Kan.) 
73  Pac.  62.  This  element  is  not  essential 
under  Pen.  Code  1895,  art.  948  which  makes 
the  mere  conversion  by  a  guardian  "swin- 
dling"— Walls  v.  State  (Tex.  Cr.  App.)  77 
S.  W.  8. 

20.  Code,  §  1025  which  dispenses  with 
allegation  of  ownership  covers  a  representa- 
tion made  to  an  agent  who  could  not  pass 
title.  Obtaining  from  such  an  agent  is  not 
larceny — State   v.   Taylor,    131    N.   C.   711. 

21.  The  rule  that  one  is  ncit  defrauded 
where  accused  only  used  false  pretense  to 
procure  performance  of  a  duty  does  not  ap- 
ply where  the  liability  was  uncertain  and 
unliquidated  and  accused  meant  to  defraud 
by  obtaining  too  much — Com.  v.  Burton,  183 
Mass.  461.  If  property  was  reclaimed  un- 
der a  mortgage  for  the  price  and  no  loss 
was  suffered  there  is  no  crime — Lively  v. 
State  (Tex.  Cr.  App.)  74  S.  W.  321.  A 
school  district  is  not  defrauded  when  be- 
guiled into  paying  a  legal  obligation  and  a 
warrant  if  Issued  must  be  legally  issued  or 
the  district  being  not  liable  is  not  defraud- 
ed— State   V.    Lawrence    (Mo.)    77    S.    W.    497, 

22.  Lodging  is  a  "valuable  thing"  within 
the  U.  S.  Comp.  St.  1901,  p.  3670  relating  to 
impersonating  a  federal  officer — United 
States   V.    Ballard,    118   Fed.    757. 

23.  Lively  v.  State  (Tex.  Cr.  App.)  74  S. 
W.   321. 

24.  County  defrauded  by  false  auditing — - 
State  V.  White   (Del.)   54  Atl.   956. 

f-..     Baker    v.    Statp    rWis.~t     07    N.    W.    RfiS 


INDICTMENT. 


1205 


2.  "cheat"  has  been  held  to  mean  such  as  not  only  to  deceive  the  victim  but 
also  to  thwart  common  prudence  and  care.^^ 

The  use  of  "false  or  bogus  checks  or  other  means,  instruments/'  etc.,  includes 
worthless  stocks.^" 

On  a  charge  of  presenting  false  pay  rolls  with  intent  to  defraud,  it  need  not 
be  averred  that  he  to  whom  they  were  presented  had  power  to  allow  them.^^  In 
the  crime  of  fraudulently  disposing  of  goods  purchased  on  credit,^^  it  does  not 
matter  to  whom  they  are  sold.^* 

Indictment.^* — Fraudulent  intent  must  be  averred.''  Knowledge,^'  and  the 
falsity  of  the  pretense,^^  the  nature  of  the  fraud,  artifice,  or  representation,^^  and 
reliance  thereon,-'"'  the  fact  of  defrauding,'*"  the  property  or  thing  obtained,*^  and 
that  it  was  obtained  from  the  person  defrauded,*'^  must  be  set  out  with  certainty. 
An  indictment  for  aiding  a  cheat  as  a  felony  in  another  state  must  aver  that  it  is 
such  a  felony  there.*' 


reviewing-    many    cases    and    repudiating    17 
Wend.    351,    31    Am.    Dec.    303. 

26.  Ming-ling-  opinions  with  misrepresent- 
ations as  to  extent  of  Injuries  received — 
Com.  V.  Burton.  183  Mass.  461;  Baker  v. 
State    (Wis.)    97    N.    W.    566. 

27.  The  mere  fact  of  easy  access  to  the 
truth  by  telephone  does  not  disentitle  one 
to  rely — Harrison  v.  State  (Tex.  Cr.  App.) 
70  S.  W.  421.     Failure  to  examine  a  so  called 

'cotton  receipt"  before  making  loan — El- 
more v.  State  (Ala.)  35  So.  25.  Records 
not  examined  showed  that  statement  of  "no 
incumbrances"  was  false — Keyes  v.  People, 
197   111.   638;   Crawford   v.   State,   117   Ga.    247. 

28.  Delivery  to  carrier  to  be  shipped  out 
of  state — In  re  Stephenson  (Kan.)  73  Pac. 
68.  Bunco  game  completed  beyond  state  is 
not  within  jurisdiction — Cruthers  v.  State 
(Ind.)  67  N.  E.  930.  See  Criminal  Law; 
Indictment  and  Prosecution. 

29.  State   V.   Hood,    3   Pen.    (Del.)    418. 

30.  Cr.  Code,  §  98 — Du  Bols  v.  People,  200 
111.    157. 

31.  State  V.   Voute   (Ohio)    67  N.  E.   484. 

32.  9000  laths  out  of  20000  purchased  for 
a  building  held  not  a  remnant  which  con- 
tractor might  divert  to  another  building 
(Rev.  St.  1899.  §  422G)— State  v.  Gregory, 
170  Mo.   598. 

33.  Information  need  not  state  it — State 
V.  Artus    (La.)    34  So.   596. 

34.  Held  sufficient  against  general  de- 
murrer— People  V.  Cadot.  138  Cal.  527.  71 
Pac.  649.  Offense  of  pretending  to  be  rev- 
enue officers  under  -Act  Cong.  April  18,  1884 
— United  States  v.  Brown,  119  Fed.  482.  In- 
dictment for  fraud  in  sale  of  wool  under 
Ohio  statute— Hogue  v.  State.  23  Ohio  Circ, 
R.  667.  Information  for  attempting  to  de- 
fraud bank  issuing  a  certificate  of  deposit — 
State  v.   Ridden    (Wash.)    74   Pac.   477. 

35.  "Designedly"  or  equivalent  is  requi- 
site— State  V.  Pickett,  174  Mo.  663.  Alle- 
gations of  "knowledge"  of  falsity  and  of 
a  "purpose  to  deceive"  etc  suffice — State 
V.    Morgan.    109    Tenn.    157. 

36.  "Well  knew"  held  sufficient-;— Baker  v. 
State   (Wis.)    97  N.  W.   566. 

37.  But  it  need  not  be  alleged  that  a 
chattel  mortgage  was  a  subsisting  lien  on 
property  represented  to  be  free  of  incum- 
brance (Cr.  Code,  par.  408) — Keyes  v.  Peo- 
ole  197  111-  638.  Allegation  that  note  rep- 
resented to  be  valid  was  void  and  open  to 
flefense  must  particularize  the  defense  and 
the    invalidity— Com.   v.   Viser,    24    Ky.   L.    R. 


1161,  70  S.  W.  832.  "That  [accused]  was  not 
entitled"  to  a  certain  warrant  which  he  ob- 
tained by  falsely  presenting  unearned  items 
of  costs,  held  sufficient — State  v.  Morgan,  109 
Tenn.  157.  It  need  not  state  that  accused 
was  not  authorized  to  settle  a  false  charge 
of  bastardy  as  he  professed  to  be — People 
V.    Stockwell    (Mich.)    97   N.   W.   765. 

38.  State  V.  Pickett,  174  Mo.  663.  "Fraud 
and  duress"  too  uncertain  though  the  words 
of  the  statute — Haughn  v.  State  (Ind.)  65 
N.   E.   287.  59  L.  R.  A.  789. 

See  note  to  Com.  v,  Weiss,  11  Ii.  R.  A. 
.j30.  Also,  cases  cited  In  note  to  59  L.  R, 
.\.  789.  Indictment  for  fraud — State  v. 
laques,  65  S.  C.  178.  Charging  part  held  in- 
consistent and  repugnant  as  to  representa- 
tions alleged — State  v.  Lawrence  (Mo.)  77 
S.  W.  497.  Particular  description  and  value 
of  certain  cattle  which  accused  claimed  to 
own  for  purpose  of  obtaining  loan  need  not 
be  added — State  v.  Hubbard,  170  Mo.  346. 
Fraudulent  cost  bills  used  need  not  be  set 
out — State  V.  Morgan,  109  Tenn.  157.  Fraud- 
ulent mortgage  must  be  set  out — Lively  v. 
State  (Tex.  Cr.  App.)  74  S.  W.  321.  Suffi- 
cient allegations  of  fraud  in  obtaining  coun- 
ty warrants — State  v.  Morgan,  109  Tenn. 
157. 

39.  "By  reason  of"  false  representations 
accused  "became  possessed''  is  sufficient — 
State  V.  Morgan,  109  Tenn.  157.  "By  means 
of  or  by  the  use  of"  is  requisite — State  v. 
Pickett,    174    Mo.    663. 

40.  Where  a  teacher  procured  appoint- 
ment of  an  assistant  it  must  be  averred  that 
he  was  not  entitled  despite  the  falsehood 
to  such  assistance — State  v.  Mortimer  (Miss.) 

34  So.   214. 

41.  The  procurement  of  a  "signature"  to 
an  instrument  does  not  appear  from  an  al- 
legation that  the  defrauded  person  "con- 
veyed and  delivered  by  warranty  deed"  cer- 
tain land  (Cr.  Code,  §  125) — Moline  v.  State 
(Neb.)  93  N.  W.  228.  County  warrants  may 
be  set  out  by  serial  number  and  value — 
State   V.    Morgan.    109    Tenn.    157. 

Proof  of  obtaining  notes  for  $200  la  not 
variant    from    "sum    of    $200." 

42.  It  must  state  that  he  "did"  deliver 
or  part  with  property — State  v.  Kelly,  170 
Mo.  151;  State  v.  Hubbard,  170  Mo.  346. 
Proof  of  loan  by  a  loan  company  not  variant 
from  allegation  of  loan  by  B  (who  did  busi- 
ness  in   that  name) — Elmore  v.   State    (Ala.) 

35  So.    25. 

43.  Cruthers  v.   State   (Ind.)    67  N.  E.   930. 


1206 


FALSE  PRETENSES— FENCES. 


§  1 


Evidence^*  and  trial. — Intent  may  be  proved  by  similar  transactions*'  or  de- 
ceptions/® and  guilty  knowledge  by  equivocation  and  contradiction.*^  Circum- 
stances may  prove  falsity.*^  It  may  be  shown  on  re-direct  examination  that  the 
defrauded  person  did  not  believe  warnings  given  to  him.*^ 

Instructions.^^ — The  sole  testimony  of  accused  is  enough  to  call  for  a  charge.^^ 
N"o  instruction  should  be  given  respecting  the  legal  rights  of  accused  if  his  repre- 
sentations were  true.^^ 

Punishment. — An  enactment  of  the  same  punishment  as  "larceny"  means  the 
same  as  prescribed  for  larceny  of  a  like  sum.°* 

FENCES. 

§  1.  Division  fences  between  co-terminous  owners. — At  common  law,  in  the 
absence  of  agreement,  an  adjoining  owner  has  no  right  to  erect  a  division  fence 
beyond  his  own  land,'^*  and  the  owner  on  whose  land  it  is  erected  may  remove  it.'^' 
Statutes  in  many  states  provide  for  the  joint  maintenance  of  boundary  fences,^" 
and  under  them  fence  should  rest  equally  upon  the  land  of  each  of  the  co-terminus 
owners.°^  The  adjoining  owner  may  remove  and  rebuild  the  part  of  the  division 
wall  assigned  to  him  without  the  consent  of  the  other  owner/*  If  the  party  boimd 
to  erect  the  division  fence  fails  to  do  so,  he  cannot  recover  for  a  trespass  com- 
mitted by  the  adjoining  owner's  cattle,'''  and  is  liable  if  the  animals  are  injured 
by  reason  of  his  failure  to  fence.®" 

§  2.  Fencing  railroad  right  of  way. — Eailroads  are  usually  required  by  stat- 
ute to  fence  the  right  of  way.®^  The  company  is  entitled  to  a  reasonable  time  to  dis- 
cover defects  in  the  fence.®* 


44.  Sufficiency  of  evidence.  Swindling  by 
cards — State  v.  Evans,  88  Minn.  262.  Evi- 
dence in  general — State  v.  Riddell  (Wash.) 
74  Pac.  477.  Of  the  meaning  of  representa- 
tions made — Smith  v.  State,  116  Gau  5S7. 
Of  deception  of  one  who  paid  money  when 
charged  with  bastardy — People  v.  Stock- 
well  (Mich.)  97  N.  W.  765.  To  show  pru- 
dent reliance  on  verbal  representations 
coupled  with  presentation  of  a  "cotton  tick- 
et" which  however  was  not  an  evidence  of 
ownership — Elmore  v.  State  (Ala.)  35  So. 
25.  Presentment  of  certificate  of  deposit 
at  teller's  window  held  a  demand  of  pay- 
ment— State  V.  Riddell  (Wash.)    74  Pac.   477. 

Insnfticient — State  V.  Lawrence  (Mo.)  77 
S.  W.  497. 

45.  Com.  V.  Lublnsky,  182  Mass.  142; 
Baker  v.    State    (Wis.)    97   N.   W.    566. 

46.  Permitting  others  to  be  deceived  as 
to  the  cause  of  injuries — Com.  v.  Burton, 
183    Mass.    461. 

47.  State  v.   Riddell   (Wash.)    74  Pac.   477. 

48.  inustration.  That  a  certificate  of  de- 
posit was  procured  by  a  confidence  game 
and  that  shortly  afterwards  accused  pre- 
sented it  at  bank — State  v.  Riddell  (Wash.) 
74    Pac.    477. 

49.  Com.  V.  Burton,   183  Mass.   461. 

50.  Instruction  as  to  what  is  an  "or- 
phans' home"  which  accused  professed  to 
represent,  sustained — Baker  v.  State  (Wis.) 
97  N.  W.  566.  Instructions  as  to  validitj' 
of  school  warrants  procured  and  power  of 
directors  held  too  narrow  as  omitting  to 
submit  an  issue — State  v.  Lawrence  (Mo.) 
77  S.  W.  497.  Instruction  held  not  mislead- 
ing as  to  representations  made  to  others 
than  defrauded  party  (State  v.  Riddell 
[Wash]    74   Pac.   477)    as   to   representations 


of    law    and    of    fact    held    conflicting — State 
V.   Lawrence    (Mo.)    77    S.    W.   497. 

51.  That  accused  believed  the  other  knew 
the  truth — Crawford   v.  State.   117  Ga.   247. 

52.  Com.  V.   Burton,  183  Mass.  461. 

53.  Three  years  in  penitentiary  sustained 
whera  J145  was  obtained — People  v.  Wynn 
(Cal.)    74   Pac.   144. 

54.  Hoar  v.  Hennessey  (Mont.)  74  Pac. 
452.  Erection  of  a  fence  by  an  adjoining 
owner  enjoined  as  being  within  a  contract 
between  the  parties — Silverfleld  v.  Frank 
(Or.)    73   Pac.    1032. 

35.  The  constructor  cannot  restrain  such 
act — Currier  v.   Jones    (Iowa)    96  N.   W.   766. 

56.  The  rights  of  private  property  are 
not  Invaded  by  a  statute  regulating  tlie  con- 
struction of  division  fences  and  inflicting  a 
penalty  for  a  violation  thereof — Horan  v. 
Byrnes    (N.   H.)    54    Atl.    945. 

57.  Hoar  v.  Hennessey  (Mont.)  74  Pac. 
452  and  each  must  pay  his  proportionate 
share  of  the  cost  and  maintenance  thereof 
—Id. 

58.  Ropes  V.  Flint.   182  Mass.   473. 

59.  Oliver  v.  Hutchinson,  41  Or.  443,  69 
Pac.  139,  1024;  Gilmore  v.  Harp,  92  Mo 
App.    77. 

60.  Howard  v.  Maysville  &  B.  S.  R.  Co.. 
24   Ky.  L.  R.   1051.   70  S.   W.   631. 

61.  A  statute  compelling  railroads  to 
erect  fences  along  their  right  of  way  and 
on  failure  permitting  the  adjoining  owner 
to  erect  same  and  recover  the  cost  thereof 
with  attorney's  fees  from  the  company  Is 
constitutional — Terre  Haute  &  L.  R.  Co.  v. 
Salmon  (Ind.)  67  N.  E.  91S.  Laws  requiring 
railroads  to  fence  their  right  of  way  are 
enacted  for  the  benefit  of  the  public  at 
large — Ludtke  v.  Lake  Shore  &  M.  S.  R.  Co., 


§  4 


FENCES— FERRIES. 


12U7 


§  3.  Destroying  or  injuring  fences. — A  threatened  destruction  of  a  fence 
may  be  restrained.^^  A  wall  used  as  a  fence  and  not  mentioned  as  a  monument 
in  any  deed  is  not  within  a  statute  punishing  the  destruction  of  monuments,"* 
but  statutes  exist  in  most  states  prohibiting  the  destruction  of  fences.®^ 

§  4.  Erection  by  municipalities  under  stocJc-fence  laws. — Statutes  permit- 
ting public  authorities  to  erect  fences,  generally  known  as  stock-fence  laws,  to 
be  valid  must  direct  that  the  cost  be  assessed  against  the  property  benefited  by 
the  erection,*'  and  the  Arkansas  statute  is  valid  though  it  assesses  the  cost  against 
the  land,  since  such  direction  will  be  interpreted  to  mean  according  to  the  bene- 
fits." Under  the  latter  statute,  a  railroad  right  of  way  within  the  fencing  district 
is  not  subject  to  assessment,'*  nor  is  the  county  poor  farm,""  nor  are  coal  mines 
imless  the  lands  containing  the  coal  are  also  useful  for  agricultural  or  kindred 
purposes.^"  The  proceedings  creating  fencing  districts  must  be  strictly  followed," 
and  a  written  report  of  the  plans  and  cost  of  the  fence  should  be  made  to  tlie 
court  by  the  board.^'  The  time  within  which  the  assessment  can  be  questioned 
does  not  apply  to  jurisdictional  and  constitutional  objections.'* 

FERRIES.74 
County  commissioners  have  a  reasonable  discretion  ns  to  the  number  of  fer- 


24  Ohio  Clrc.  R.  120.  Where  the  company 
Is  required  to  fence  the  duty  Is  to  the  ad- 
joining owner  and  not  to  the  public.  An 
owner  of  an  animal  therefore  cannot  recover 
for  Injuries  to  it  where  it  entered  the  right 
of  way  from  the  unfenced  land  of  another — 
Delphia  v.  Rutland  R.  Co.  (Vt.)  56  Atl.  279. 
Generally  railroads  are  not  required  to  fence 
at  places  where  public  safety  or  convenience 
or  safety  of  employes  requires  It  to  be  kept 
open;  as  a  place  for  switching — Redmond 
V.  Missouri.  K.  &  T.  R.  Co.  (Mo.  App.)  77 
S.  W.  768.  Natural  barrier  held  not  to  con- 
stitute a  fence  within  the  statute  requiring 
railroads  to  fence — Taylor  v.  Spokane  Falls 
&  N.  R.  Co.    (Wash.)    73  Pac.   499. 

63.  Colyer  v.  Missouri  Pac.  R.  Co.,  93 
Mo.  App.  147;  Hendrickson  v.  Philadelphia 
&  R.  R.  Co.,  68  N.  J.  Law,  612;  Perrault  v. 
Minneapolis,  St.  P.,  etc.,  R.  Co.  (Wis.)  94 
N.  W.  348.  After  a  lapse  of  two  years  no- 
tice of  the  defect  Is  presumed — Ludtke  v. 
Lake  Shore  &  M.  S.  R.  Co.,  24  Ohio  Circ.  R. 
120. 

63.  Lynch   v.   Egan    (Neb.)    93   N.   W.    775. 

64.  R.  L.  c.  208,  S  78 — Ropes  v.  Flint, 
182   Mass.   473. 

65.  The  destruction  of  another's  fence 
which  does  not  Inclose  the  owner's  land  Is 
not  within  the  statute  inflicting  a  penalty 
for  the  destruction  of  another's  fence  (Rev. 
St.  1899,  S  4573) — Wilson  v.  Burton,  96  Mo. 
App.  686.  The  person  pulling  down  or  re- 
moving the  fence  Is  liable  to  criminal  prose- 
cution, whether  he  did  it  as  agent  for  or 
under  the  direction  of  another  (State  v. 
Campbell  [N.  C]  45  S.  E.  344)  nor  is  It  a 
defense  that  nothing  was  growing  In  the 
field  at  the  time  it  being  a  cultivated  field 
within  Code  1883,  §  1062  (Id.)  or  that  the 
defendant  had  a  better  title  than  prose- 
cutor, the  latter  being  in  actual  peaceable 
possession — Id.  The  size  of  the  field  is  Im- 
material— Id.  Indictment  and  evidence.  An 
indictment  under  a  statute  making  such  of- 
fense a  misdemeanor  charging  the  offense  In 
the  language  is  suflSclent  (Sand.  &  H.  Dig. 
S   17S4).     Sufficiency   of  Indictment — State  v. 


Culbreath  (Ark.)  71  S.  W.  254.  Admissibil- 
ity of  evidence  on  trial  of  Indictment — 
Smith  V.  State  (Tex.  Cr.  App.)  70  S.  W.  84; 
Caudle  v.  State  (Tex.  Cr.  App.)  74  S.  W. 
545. 

66.  N.  Car.  act  March  6,  1903  relating  to 
New  Hanover  county  Is  unconstitutional — 
Harper  v.  New  Hanover  County  Com'rs  (N. 
C.)  45  S.  E.  526.  That  the  property  was 
benefitted  by  the  fence  Is  shown  prima  facie 
by  the  assessment — Stiewell  v.  Fencing 
Board    (Ark.)    70   S.    W.    308. 

67.  Stiewel  V.  Fencing  Board  (Ark.)  7<i 
S.   W.   308. 

68.  Stiewell  V.  Fencing  Dlst.  (Ark.)  71 
S.   W.   247. 

60.  Stiewel  v.  Fencing  Board  (Ark.)  70 
S.   W.    308. 

70.  Stiewell  v.  Fencing  Dlst.  (Ark.)  71 
S.  W.   247. 

71.  If  the  board  did  not  take  the  pre- 
scribed oath  It  Is  not  properly  constituted 
— Stiewel  V.  Fencing  Board  (Ark.)  70  S. 
W.  308.  The  district,  as  formed,  held  not 
to  vary  with  the  district  as  petitioned  for 
—Id. 

72.  But  the  objection  should  be  made 
within  limitation  fixed  by  the  statute — Stie- 
wel  V.    Fencing   Board    (Ark.)    70    S.    W.    308. 

73.  The  proper  constitution  of  the  board 
Is  not  such  an  objection — Stiewel  v.  Fen- 
cing Board  (Ark.)  70  S.  W.  308.  Assess- 
ment held  not  excessive — Id. 

74.  Sufficiency  of  description  in  applica- 
tion for  a  ferry — Ferry  Co.  v.  Russell,  52 
W.  Va.  356,  59  L.  R.  A.  513.  Sufficiency  of 
evidence  as  to  inclusion  of  a  certain  body 
of  water  in  prohibition  of  location  of  a 
ferry  within  a  certain  distance  of  an  ex- 
isting ferry — Robinson  v.  Lamb,  131  N.  C. 
229.  Jurisdiction  as  to  ferry  privileges  of 
Pasquotauk  River  as  between  counties  of 
which  it  Is  the  boundary  settled  under  2 
Rev.  St.  p.  Ill  (Act  1877)  creating  Camden 
county  and  Code.  §  2014 — Id.  Matters  aris- 
ing from  the  operation  of  ferry  boats  are 
treated  In  Shipping  and  Water  Traffic. 


1208 


FERRIES— FINES. 


ries  to  be  licensed  at  one  point/''  The  0T\TierGhip  or  lease  of  Innd  required  of  an 
applicant  for  a  ferrj'^  does  not  require  sucli  an  interest  in  land  in  another  state 
on  the  opposite  side  of  the  river.''® 

A  county  court  on  one  side  of  the  river  cannot  take  jurisdiction  of  an  appli- 
cation for  a  ferry  privilege  by  parties  contesting  an  application  for  the  same  pur- 
pose pending  in  the  county  court  on  the  other  side.  Notice  of  an  intention  to  apply 
for  a  grant  amounts  to  service  of  process  on  all  interested  persons.'"  A  report  on 
an  application,  signed  by  two  of  three  viewers,  is  sufficient.'*  A  ferry  franchise 
may  be  transferred  as  any  otlier  incorporeal  hereditament.'"  A  ferry  company  of 
one  state,  operating  on  a  boundary  river,  is  deprived  of  property  without  du^ 
process  of  law  by  inclusion  of  a  franchise  from  the  other  state,  in  its  taxable  prop- 
erty in  the  state  of  its  domicile.^"  Failure  of  a  ferry  company  to  comply  with 
statutes  regulating  its  privilege  is  no  defense  to  its  suit  to  restrain  trespass  on 
its  lands.®^ 

FINES.  82 

The  legislature  may  authorize  a  judgment  in  favor  of  the  party  aggrieved,** 
allow  part  of  the  fine  to  the  informer,®'*  or  may,  in  the  absence  of  constitutional 
restriction,  provide  at  will  for  the  disposition  of  fines.*' 

Fines  paid  on  a  conviction  without  jxirisdiction  may  be  recovered  back,** 
unless  voluntarily  paid.*^ 

A  complaint  by  supervisors  against  a  magistrate  for  fines  collected  is  not  in- 
validated by  unnecessary  averments  of  wrongful  conversion.**  Sureties  on  bond  on 
appeal  from  fine  and  imprisonment  are  liable  for  fine  though  imprisonment  is 
performed.*'  Only  personal  security  for  fines  can  be  taken  under  the  Arkansas 
statute.'"  An  affidavit  in  forma  pauperis  is  essential  to  discharge  after  ten  days* 
imprisonment.'* 


75.  Injunction  will  not  He  against  an- 
other application  ([Rev.  St.  §  643] — Green 
V.  Ivey  [Fla.]  33  So.  711)  but  will  lie  against 
operation  of  a  ferry  without  license — Id. 
An  owner  cannot  recover  for  loss  of  busi- 
ness from  establishment  of  another  ferry — 
Ferry  Co.  v.  Russell,  52  W.  Va.  356.  59  L. 
R.  A.  513.  (In  59  L.  R.  A.  513-556  inclusive 
will  be  found  an  exhaustive  monographic 
note  on  the  establishment,  regulation,  and 
protection  of  ferries).  A  third  ferry  should 
not  be  established  on  application  of  the  own- 
er of  one  of  two  already  existing  where 
travel  is  Insufficient  and  injury  will  result 
to    the    other    existing   ferry — Id. 

76.  Code,  c.  44,  §  2 — Ferry  Co.  v.  Russell, 
52  W.  Va.  356.  reported  with  exhaustive 
note,    69   L.   R.   A.    513. 

77.  The  latter  court  may  issue  a  writ  of 
prohibition  under  Civ.  Code,  §  479  to  restrain 
the  former  court — Clark  County  Ct.  v.  War- 
ner   (Ky.)    76  S.  "W.   828. 

78.  Code,  c.  13,  §  17.  cl.  2 — Ferry  Co.  v. 
Russell.  52  W.  Va.  356,  reported  with  ex- 
haustive   note    59    L.    R.    A.    513. 

79.  The  assignment  does  not  change  the 
control  of  the  franchise-granting  power  and 
the  rights  of  the  assignee  can  only  be  ques- 
tioned by  that  power — Evans  v.  Kroutinger 
(Idaho)    72   Pac.   882. 

80.  Louisville  &  T.  Ferry  Co.  v.  Ken- 
tucky, 188   U.   S.   385. 

81.  St.  1899,  §  1808,  subsec.  3  regulating 
sale  or  lease,  and  St.  §§  3915,  3917-3919, 
against  pools  and  combinations — Wilson  v. 
Sullivan    (Ky.)    77   S.  W.   193. 

82.  Includes   only  enforcement   and   dispo- 


sition. Propriety  of  particular  punishments 
are  treated  in  Criminal  Law;  procedure  for 
their  imposition  in  Indictment  and  Prosecu- 
tion. 

83.  Such  a  judgment  Is  not  properly  a  fine 
and  hence  the  provision  does  not  contravene 
Const.  Neb.  art.  8,  §  5.  declaring  that  fines 
shall  be  for  the  benefit  of  the  school  fund — 
Everson  v.  State    (Neb.)    92   N.   W.   137. 

84.  The  pardoning  power  of  the  governor 
is  not  thereby  infringed — Meul  v.  People,  198 
111.  25S.  Wilmington  city  charter  providing 
that  fines  shall  be  paid  into  the  city  treasury 
"except  as  otherwise  provided."  includes  sub- 
sequent exceptions,  such  as  act  May  26,  189T, 
allowing  one-half  of  certain  fines  to  a  society 
— Law  &  Order  Soc.  v.  Wilmington  (Del.)  55 
Atl.   1. 

S.%.  Rev.  St.  §  4364,  providing  that  certain 
fines  shall  go  to  the  municipality  where  im- 
posed, sustained — Lloyd  v.  Dollisin,  23  Ohio 
Circ.  R.   571. 

SG.  Evidence  held  Insufficient  to  show  that 
the  county  had  received  same — Houtz  v. 
Board  of  Com'rs   (Wyo.)    70  Pac.   840. 

87.  Payment  under  mistake  of  law — Har- 
rington v.  New  York,  40  Misc.  (N.  Y.)  165. 
Payment  after  giving  bond  for  appearance 
at  appellate  court  held  voluntary — Houtz  v. 
Board  of  Com'rs   (Wyo.)   70  Pac.   840. 

88.  Town  of  Green  Island  v.  Williams,  7» 
App.   Dlv.    (N.  Y.)    260. 

SO.     People  V.  Connolly,  84  N.  Y.  Supp.  617. 

90.  Not  a  chattel  mortgage — Hubbard  v. 
State   (Ark.)   75  S.  W.  853. 

01.  Ex  parte  Rodrlquez  (Tex.  Cr.  App.)  7J 
s    w.  lor.fi 


UNIVERSITY  or  CALIFORNIA 
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